Surprisingly, Many California Lawyers Want To Have The Option Of Having Sex With Their Clients

It's all your fault, Arnie...

It’s all your fault, Arnie…

For most of the last century, sensible and rational lawyers accepted that exploiting the attorney-client relationship to have sex with their clients was unprofessional and unethical, without needing a formal rule to tell them the obvious. Then along came Steven Bochco’s popular TV drama “L.A. Law,” the over-heated saga of a high-rolling Los Angeles law firm and its libidinous lawyers. Most libidinous of all was domestic law specialist Arnie Becker, played by the then-blonde and dashing Corbin Bernsen. Arnie habitually slept with his clients when they were wealthy, sculptured, beautiful trophy wives trying to shed their husbands. This was not the image that the family law bar wanted to see broadcast to America, so lobbying efforts were undertaken in many state bars to formally declare Arnie’s nocturnal client conferences unethical, as they undoubtedly were.

California, being partially at fault for the uptick in the public’s false belief that lawyers use their practice as a virtual dating bar, was among the first states to pass an “Arnie Becker Rule,” though it had company, like Oregon, which amusingly anticipated Bill Clinton by including a strangely specific definition of what sexual intercourse was, and New York, which narrowly limited its prohibition to Arnie Becker and domestic relations lawyers like him. Other jurisdictions demurred, as well as the American Bar Association, which is supposed to seek consistency in the legal ethics rules. California’s new rule was one of the more wishy-washy ones, with Rule 3-120 stating that

(B) A member shall not:

(1) Require or demand sexual relations with a client incident to or as a condition of any professional representation; or

(2) Employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or

(3) Continue representation of a client with whom the member has sexual relations if such sexual relations cause the member to perform legal services incompetently in violation of rule 3-110

Why the equivocation? It has always seemed very strange to me, since having sex with a client automatically creates a conflict of interest that should be unwaivable, and is flagrantly unprofessional. When the ABA finally entered the lawyer sheets-policing business in 2003, it was admirably direct, declaring that “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

If there has to be an Arnie Becker rule, and there shouldn’t have to be, the ABA’s version is infinitely superior as it eliminates all wiggle room, and you know how lawyers love wiggle room, especially when it involves that kind of wiggling. All but 17 bar associations, including those in Texas, Virginia and the District of Columbia, have rejected any type of Arnie Becker rule because the existing rules should be sufficient to let  the dimmest or horniest lawyers know that they need to keep a necessary emotional and physical distance from even the most appealing clients.

As Ethics Alarms noted in one of the first posts it featured, having sex with a client plainly will violate one or more Model Rules of Professional Conduct, such as

Rule 1.2, which states that a lawyer must not substitute his or her judgment for the client’s, or  use undue influence to influence the client’s judgment

Rule 1.7, prohibiting a lawyer from representing a client when his or her personal interests are likely to interfere with the tasks involved.

Rule 5.4, which requires an attorney to maintain independent judgment.

Rule 8.4, which prohibits conduct reflecting poorly on a lawyer’s fitness to practice law, and conduct prejudicial to the administration of justice.

…not to mention risking an appearance of impropriety, which, while no longer an element of the legal ethics rules, is still something that any ethical and prudent lawyer should avoid.

Now California’s state bar, which is trying to bring its ethics rules closer to those of the ABA (and thus every other state), is on the verge of recommending that the bar go Full-Becker, and ban attorney- client sexual relations outright. Opponents of the ban, including the Los Angeles County Bar Association’s ethics committee, say the new language is unnecessary and would be struck down as an unconstitutional violation of fundamental privacy rights.

Though I think all  Arnie Becker rules are embarrassing to the profession and superfluous, now that California has a ban (of sorts), it can’t eliminate it without the move being interpreted as an endorsement, or at least a shrug, regarding attorney-client sex. Thus the better rule, the ABA’s version, should be enacted. Ironically, Rule 3-120 makes the revision necessary because it wrongly suggests that sex between lawyer and client can ever not be unethical and unprofessional. (Both the ABA and California exempt situations where the lawyer was already in an intimate relationship with someone before the representation began–though that’s not a good idea either.)

The objections to the California rule being strengthened are weak, and even suspicious. The new language is necessary because the current language is inadequate, and opens the door for rationalizations a-plenty, especially the “consenting adults” dodge.  As for the invasion of privacy argument, a lawyer’s unethical treatment of an attorney-client relationship isn’t private, it is professional. The lawyers who want to pretend that boinking a comely client is their personal choice are the reason there are such rules. Arnie, is that you?

There can be no wiggle room, so the legal ethics rule, if there is a rule, can’t suggest otherwise. As I concluded in the earlier post,

Although there may be some situations in which a sexual relationship with a client wouldn’t interfere with the independent judgment of client and attorney, create an unwaivable  conflict of interest for the attorney or raise the specter of impropriety, the remote possibilities of those anomalies  occurring aren’t worth the trouble of leaving wiggle room in the ethics standards…It’s like drinking and driving, really:

If she (or he) is a client, don’t have sex with him (or her). If you’re  having sex with him (or her), then don’t take her (or him) as a client.

Simple.

That also goes for dating, snuggling, petting, kissing, and what Bill Clinton doesn’t think is sex, too.

Especially in California.

10 Comments

Filed under Arts & Entertainment, Gender and Sex, Law & Law Enforcement, Professions, Romance and Relationships

10 responses to “Surprisingly, Many California Lawyers Want To Have The Option Of Having Sex With Their Clients

  1. So are you saying it might be unethical to represent a spouse?

    • Steve-O-in-NJ

      An attorney who represents himself has a fool for a client. An attorney who represents a spouse has an even bigger fool for a client. It’s hard enough to be objective when you’re personally involved in the case, even if it’s just a fenderbender or a stupid landlord-tenant dispute. It’s impossible to be objective when your relationship with your spouse could be compromised if the case goes sideways or just isn’t a very good case to begin with.

    • It is a bad idea, and full of conflicts. If it’s a speeding ticket, fine. A criminal matter? Major law suit? Never.

  2. Steve-O-in-NJ

    I’m an attorney myself, and this is a no-brainer. Getting too close to other lawyers is also, if not per se unethical, a really, really bad idea, same as breaking a promise you can legally break when it becomes inexpedient. Relationships cloud judgment, and without judgment we can’t properly advise a client. Promises are what a reputation is built on, damage one and you damage the other.

    And BTW, L.A. Law is a really bad image of life at a law firm, where you’re usually way too busy trying to meet deadlines, meet the billable hours requirement, meet with clients, and meet with the Court to even meet a potential date for coffee, leave alone anything else. All this pressure also makes for a tense, even scary environment, hardly a setting for scintillating sex. Then again, it was pure fiction, and should have been treated as such.

  3. Wayne B

    I guess renumeration could get all screwed up especially when attorneys are representing hookers or attractive divorcees. But then again, hey this is California!

  4. Are there perhaps unequal-protection arguments relevant to the sex ban?

  5. Other Bill

    I’d really like to hear from Sparty or Charles on this. I wonder whether the enlightened response to the KFC firee posting the secret recipe of, “it’s just a joke” aka, “it’s not the worst thing” or “They do it in France, what’s the big deal?” or, “it’s all good,” is in their minds applicable to this situation as well.

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