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