SAN FRANCISCO — A recent proposal has been submitted to add
California to the other 17 states that ban attorneys from having
consensual sexual relationships with their clients.
Although many support the change to the state’s ethics rules,
some find the proposal extreme and in possible violation of privacy
According to a Nov. 28 article on www.npr.org, although California
currently bans attorneys from sexual coercion of a client in exchange
for legal representation or if the attorney performs incompetent
legal services as a result of a relationship, the issue of
consensual relationships is now under ethical debate.
“Supporters of an all-out ban say the relationship between a
lawyer and client is inherently unequal, so any sexual relationship
is potentially coercive,” a Nov. 27 Associated Press article said.
“But some attorneys say it's an unjustified invasion of privacy.”
According to research from an American Bar Association committee,
as of May 2015, 17 states had implemented a “blanket sex ban”
drafted by them.
The Associated Press article explained that the proposal for the
sex ban is one of many suggested changes to the state bar
association’s ethics rules in almost 30 years.
“Lawyers who violate the regulations are subject to discipline
ranging from private censure to loss of their legal license,” the
Associated Press article said.
Specifically, these changes will be implemented under the
attorney-client conflict-of-interest rules.
"The first and foremost goal is to promote confidence in the
legal profession and administration of justice and ensure adequate
protection to the public," Lee Smalley Edmon, an appellate-court
judge in California and head of the commission, said to the
Associated Press in the Nov. 27 article.
Furthermore, the Associated Press reported that the sex ban has
divided the ethics-rules revision commission. For instance, at an
October commission meeting, Daniel Eaton, who is a lawyer and
commission member, explained that the current rule regarding sex is
not effective, and he pointed to a lack of disciplinary action
against attorneys as evidence.
For example, the Associated Press reported, the state bar
investigated 205 complaints of misconduct under the current sex
restrictions and imposed discipline in only one case between
September 1992 and January 2010.
"If we have a very flat guideline, it gets out of the area of
subjectivity," Andrew Servais, chairman of the San Diego County
Bar Association’s legal ethics committee, said in the Associated
Those who oppose the ban argue it is unnecessary and would be
found an unconstitutional violation of privacy rights.
"Proponents of a complete ban cannot articulate why a lawyer
should be disciplined for sexual relations with a mature,
intelligent, consenting adult, in the absence of any quid pro quo,
coercion, intimidation or undue influence,” James Ham, another
lawyer on the commission, said in a written dissenting opinion to the
The supporters on the ethics commission explained the necessity of
the changes in a written statement.
"The Commission believes that California's current rule
renders it difficult to prove a violation in the typical circumstance
of consensual sexual relations,” the commission proposal said in an
executive summary on www.npr.org.
“... For example, where consensual sexual relations occur, the
State Bar must prove that the relations caused the lawyer to perform
legal services incompetently [which] imposes a complexity that is
likely frustrating enforcement. ...”
The commission further argued that the suggested changes are
reasonable for the profession, explaining that other professions,
such as restrictions for psychotherapists, have rules that are more
According to www.npr.org, all proposed rules will go to the
California Supreme Court by March.