The Board of Trustees for the State Bar of California has approved a new ethics rule making substantive changes to Rule 3-120, which governs sexual relationships with clients. The revised rule provides: “A lawyer shall not engage in sexual relations with a client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.” The new rule, which is among a wholesale revision of the Rules of Professional Conduct, was among those referred to the California Supreme Court on March 9, 2017. If adopted, the revised rule will be renumbered from 3-120 to Rule 1.8.10.
Current Rule 3-120 provides that 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.” Business and Professions Code Section 6106.9, with slight differences in its application, also provides that it “shall be a cause for discipline” for the same conduct.
Both the proposed Rule 1.8.10 and the current rule exclude “ongoing consensual sexual relationships that predate the initiation of the lawyer-client relationship.” Notwithstanding, the changes are significant.
To be subject to discipline under prior Rule 3-120, the first two categories generally required conflicting testimony as to the details of the attorney’s formation of the sexual relationship with a current or prospective client. Category 3 required a finding under Rule 3-110 that a member “intentionally, recklessly or repeatedly fail to perform legal services with competence.” Rule 3-110(A). Competence is defined as including not only diligence and skill, but also “mental, emotional and physical ability reasonably necessary for the performance of such service.” Rule 3-110(B). These requirements are no longer required for discipline.
How the new rule is interpreted will also be significant given how other states have interpreted rules corresponding to proposed Rule 1.8.10. Indeed, if the relationship is consensual, but reported by a third party, the consent may not matter, as some states have interpreted the rule to preclude consent as a defense. Iowa Supreme Court Attorney Disciplinary Bd. v. Moothart, 860 N.W.2d 598, 605 (Iowa 2015).
Significantly, an attorney acting as outside counsel to a corporation could be disciplined for having consensual sexual relations with a sophisticated corporate officer or corporate counsel who regularly deals with outside counsel. To be sure, the comment to new Rule 1.8.10 provides that “[w]hen the client is an organization, this Rule is applicable to a lawyer for the organization (whether inside counsel or outside counsel) who has sexual relations with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.”
Practitioners must be aware an entirely new standard applies to sexual relationships with existing clients.
**No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**