Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

Rule of Professional Conduct 3-120 (Sexual Relations With Client)
 
Ah, February, the month of Valentine’s Day. If you are having Valentine’s dinner with a client, hopefully you have already considered Rule of Professional Conduct 3-120 (Sexual Relations with Client). Occasionally, an attorney will comment, “The State Bar’s adoption of this rule is an insult to the profession.” However, the adoption of such a rule was mandated by the Legislature via Bus. & Prof. Code § 6108.8. It observed that there was no rule governing this topic in California and declared, “…it is difficult to separate sound judgment from emotion or bias which may result from sexual involvement between a lawyer and his or her client” during the attorney-client relationship, and that “emotional detachment is essential to the lawyer's ability to render competent legal services.” It is difficult to disagree with these general observations.
 
Rule 3-120 and Bus. & Prof. Code § 6108.9, the corresponding statute to the above, generally use the same language (but § 6108.9 is actually a little broader in scope, so we concentrate on that language here). An attorney may not:
 
         •           Expressly/impliedly condition legal services for a current/prospective client
                      upon the client's willingness to engage in sexual relations;
 
         •           Employ coercion, intimidation, or undue influence in entering into sexual            
                      relations with a client;
 
         •           Continue representation of a client with whom the attorney has sexual     
                      relations if such relations cause the attorney to perform legal services
                      incompetently in violation of Rule 3-110 or if the sexual relations would, or
                      would be likely to, damage or prejudice the client's case.
 
         •           For purposes of Rule 3-120, if the client is an organization (see Rule 3-
                      600), any individual overseeing the representation is deemed to be the
                      client.
 
As one would expect, the above does not apply to sexual relations between attorneys and their spouses or persons in an equivalent domestic relationship or to ongoing consensual sexual relationships that predate the attorney-client relationship. (Keep in mind, however, that the catchall provision of rendering services competently, Rule 3-110, applies at all times and in all circumstances.)  Also, where an attorney in a firm has sexual relations with a client but does not participate in the representation, the attorneys in the firm are not subject to discipline under these provisions. (See Rule 3-120 and Bus. & Prof. Code sections 6108.8 and 6108.9.)
 
Lastly, an early Happy Valentine’s Day wish to all.
 
--Luis E. Ventura
 
**No portion of this summary 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.**