Attorney-Client Sex: It’s Time for a Rule

It’s time to raise this issue.  Again.

On July 10, the Professional Responsibility Board’s duties will expand to include reviewing and recommending changes to the Rules of Professional Conduct.  For many years, proposed amendments to the RPCs have flowed through the Advisory Committee on Civil Rules.

I expect that one of the Board’s first recommendations will be to propose a rule that bans attorney-client sexual relationships that do not pre-date the representation.

The Board has long felt that Vermont should join the 31 other states that have specific bans.  In January 2015, the Board recommended that the Court adopt a specific ban.  I supported the recommendation, as did then disciplinary counsel.  At the time, each of us had more than 13 years of experience prosecuting disciplinary cases, and first-hand experience with the challenges posed by the lack of a bright-line rule when prosecuting a lawyer who exploits the attorney-client relationship.

Please take the time to answer this poll question: should the PRB propose a rule that specifically bans lawyer client sexual relationships?  You can vote HERE.

Need information before you vote?  I blogged on the issue HERE and HERE.   For the click-averse, I’m pasting in the blog that I posted in December 2015.  It recounts the history of the Board’s efforts to pass a “bright-line” rule and includes some of the arguments for & against an affirmative ban.

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The ABA has adopted Model Rules of Professional Conduct.  For the most part, Vermont’s rulestrack the model rules.  When it comes to sexual relationships between lawyers and their clients, Vermont’s rules do not track the model rule.

The model rules include a specific ban on client-lawyer sexual relationships.  It’s in Model Rule 1.8(j).  It reads:

  • “(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

Thirty-one states have followed the ABA’s lead and adopted specific bans on client-lawyer sexual relationships.  Vermont has not.

While not specifically prohibited by rule, Comment [17] to V.R.Pr.C. 1.8 addresses the “Client-Lawyer Sexual Relationship.”  It’s wordy, but important. It says:

  • “The relationship between the lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence.  The relationship is almost always unequal; thus, a sexual relationship between and client can involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not to use the trust of the client to the client’s disadvantage.  In addition, such a relationship presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment.  Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship.  For all of these reasons, lawyers are cautioned that sexual relations with a current client could give rise to claims of incompetence under Rule 1.1, of lack of diligence under Rule 1.3, of a conflict with the lawyer’s personal interests under Rule 1.7(a)(2), of using client information to the client’s disadvantage under Rule 1.8(b), of conduct involving dishonesty or the like under Rule 8.4(c), or of conduct prejudicial to the administration of justice.”

(Okay, although this is a serious topic, lawyers don’t need to be so serious all the time. So, an aside: the very first “caution” against sexual relationships with clients was that such relationships might give rise to claims of incompetence.  The unintentional comedy is hilarious.)

In any event, in Vermont, for a sexual relationship with a client to be an ethics violation, the lawyer must do something else wrong. That is, disciplinary counsel would have to prove, for example, that the relationship created an impermissible conflict of interest under Rule 1.7(a)(2).  The conflict being that risk that the relationship would materially limit the lawyer’s duties to the client.

In 2009, the Civil Rules Committee amended some of Vermont’s ethics rules so as to conform with the ABA Model Rules.  The Committee intentionally omitted Mode Rule 1.8(j).  According to the Reporter’s Notes to the 2009 Amendments, the

  • “omission [was] based on the grounds that an absolute prohibition of lawyer-client sexual relations is both an invasion of privacy and a duplication of the effect of other rules requiring loyal and competent representation, as noted in the revised text of Comment [17].

Earlier this year, the Professional Responsibility Board (“PRB”) recommended a series of amendments to the Rules of Professional Conduct.  The recommendation included a proposal that the Supreme Court amend V.R.Pr.C. 1.8 to include the following language:

  • “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

The full text of the recommendation with respect to Rule 1.8 is HERE.

The Court forwarded the PRB’s recommendations to the Civil Rules Committee.

With one exception, the Civil Rules Committee voted to send the  PRB’s recommendations out for notice, comment, and possible adoption.  The exception:  the proposal to amend Rule 1.8 so as to include a specific ban on client-lawyer sexual relationships.

As I understand it, the Committee’s position is the same as it was in 2009, and that is outlined in the Reporter’s Notes to the 2009 Amendments to Rule 1.8.  That is, there is no need for specific ban, that client-lawyer sexual relationships can be prosecuted under other rules.

The upshot: the PRB’s recommendation that the Court adopt a per se ban on client-lawyer sexual relationships was rejected and not published for notice & comment. (note: the Committee voted to publish other proposals from the PRB for notice & comment. Those proposals are HERE).

The debate over whether the ethics rules should include a specific ban on client-lawyer sexual relationships is not new or limited to Vermont.  In 1993, the New Hampshire Bar Association’s Ethics Committee weighed in.  The debate raged in Texas in 2010, with bar eventually rejecting a proposal to enact a specific ban.  Commenting on the Texas debate, this blog post raises various arguments in favor of a per se ban, while this advisory opinion from Virginia, although not calling for a per se ban, sets out “the host of ethical problems” that arise when lawyers and clients have sexual relationships.

To summarize, some of the arguments for a specific ban:

  • protects vulnerable clients from exploitation, coercion, undue influence;
  • keeps lawyers  from providing advice based on clouded judgment;
  • treats lawyers the same as most other licensed professions;
  • it’s clear, not complicated, leaves no wiggle room; and

Some of the arguments against a specific ban:

  • the existing rules work;
  • unnecessary invasion of privacy;
  • jilted clients will file frivolous malpractice/ethics complaints;
  • what about situations in which there’s no danger of a conflict or any other violation?  For example, corporate counsel and CEO, or a lawyer and a sophisticated transactional client.

Question_mark

 

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