SAN FRANCISCO – the nation’s largest state bar association’s revised ethical rules for lawyers for the first time in 30 years, and some lawyers are not happy about a proposal that would open to them a sense of discipline for having sex with customers.
California currently bars lawyers from coercing a client into having sex or demanding sex in exchange for legal representation.
Proponents of a ban say that the relationship between a lawyer and client is inherently unequal, so a sexual relationship is, in principle, binding. But some lawyers say that it is an unjustified infringement on the privacy.
The proposal is part of a long-awaited shake-up of the state bar association ethical rules for lawyers, who were last completely revised in 1987. Lawyers who violate the rules are subject to disciplinary measures, ranging from private censure to the loss of their legal license.
A state bar commission spent months crafting and amending of 70 rules in the context of objectives by the Supreme court of California. Other changes under consideration would allow the state bar to discipline attorneys for discrimination and harassment, even without a separate determination of violations. The current rule requires that a final determination of unlawful discrimination in a lawsuit or other proceeding for the state bar can take action.
Yet another change would bring California in line with other states by subjecting prosecutors to discipline for not turning over evidence that they know or reasonably should know, would help in the defense.
“The first and most important goal is to promote confidence in the legal profession and the administration of justice and provide adequate protection to the public,” said Lee Smalley Edmon, California court of appeal judge and head of the commission for the revision of the rules.
The sex ban is divided into the rules for the review of the commission, although similar restrictions are in place in other member states. In May 2015, 17 states had adopted a blanket sex ban prepared by the American Bar Association, according to an ABA committee that looked into the implementation of the group in the ban.
If the ABA ban, California’s proposal makes an exception when the sexual relationship preceded the attorney-client relationship.
In October commission meeting, a lawyer and member of the committee Daniel Eaton said the current rule with respect to sex does not work, and pointed to a lack of disciplinary measures against lawyers as evidence.
Between September 1992 and January 2010, the state bar investigated 205 complaints of misconduct under the current gender restriction, according to an analysis of the state bar of data that goes along with the proposal. The imposed discipline in just one case.
The current rule also prohibits the sex if it causes the attorney “to perform legal services incompetently.”
A bright-line rule would provide clarity to attorneys and remove the difficulty of proving the sexual relationship is the result of coercion or adversely affected the lawyer’s performance, supporters say.
“If we have a very flat directive, it comes from the environment of the subjectivity,” said Andrew Servais, chairman of the San Diego County Bar Association’s legal ethics committee.
Opponents of the ban, including the Los Angeles County Bar Association ethics committee, say that it is unnecessary and would be struck down as an unconstitutional violation of the fundamental rights to privacy.
No empirical or even reliable anecdotal evidence shows a ban is needed to protect the public or regulate the legal profession, James Ham, another lawyer in the commission, said in an objection filed with the commission.
He added, “the Proponents of a complete ban can not articulate why a lawyer should be disciplined for the sexual relationship with a mature, intelligent, consenting adults, in the absence of a quid pro quo, coercion, intimidation or undue influence.”
The revisions to the commission a revised proposal at the October meeting to make an exception of the gender ban for lawyers’ spouses or registered domestic partners. It also requires the state bar or a client, would be “unnecessarily burdened” by an investigation of sexual misconduct if someone other than the client filed the complaint.
The bar of the board of directors approved an additional public comment period on the sex ban rule earlier this month. The commission has until the end of March 2017 of the board of directors the approval of the proposals and send them to the California Supreme court, who have the final word on the changes.