WSYW: Attorney-Client Sex

What Say You Wednesday.

I blogged on the issue of lawyer-client sexual relationships HERE.

Long story short, Vermont’s Rules of Professional Conduct do no include a specific ban on lawyer-client sexual relationships.  In 2009, the Civil Rules Committee amended the Rules to incorporate several changes to the ABA Model Rules.  The ABA Model Rules include a specific ban on lawyer-client sexual relationships.

The Committee intentionally omitted the ABA’s specific ban on lawyer-client sex from the amendments it adopted.  According to the Reporter’s Notes, the omission was “based on the grounds that an absolute prohibition on lawyer-client sexual relationships is both an invasion of privacy and a duplication of the effects of other rules requiring loyal and competent representation .  . .”  For further explanation, see Comment 17 to Rule 1.8.

The Professional Responsibility Board feels strongly that Vermont should join the 31 other states that have specific bans.  Thus, last year, the PRB recommended that the Court adopt a specific ban.  I supported the recommendation, as did current disciplinary counsel.  Each of us has more than 10 years of experience prosecuting disciplinary cases and understands the difficulty of shoe-horning a prosecution of lawyer-client sex into a violation of the conflicts rules.  A bright-line rule would be easy to follow and easy to prosecute.

The Court referred the proposal to the Civil Rules Committee.  The Committee rejected the PRB’s proposal.   As such, the proposal was not formally considered by the Court or published for notice & comment by the bar.  It remains unclear to the PRB how a recommendation from the very body that the Supreme Court has charged with administering the disciplinary system can be rejected by another committee without formal review by the court.

Again, 31 states have rules that specifically ban lawyer-client sexual relationships.  Most have an exception for relationships that pre-date the attorney-client (professional) relationship. The PRB’s proposal included just such an an exception.

The PRB’s proposal is HERE.  An excellent, reasoned argument for the opposition is HERE.

A chart of the states is HERE.

So, what say you?  Should the PRB propose the ban again?

You can answer today’s poll question  HERE.

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