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 rights.
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 Press article.
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 commission.
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 strict.
According to www.npr.org, all proposed rules will go to the California Supreme Court by March.