A Sex Rule

Earlier this week, the Professional Responsibility Board forwarded to the Vermont Supreme Court its recommendation that the Court amend Rule 1.8 of the Vermont Rules of Professional Conduct as follows:

  • (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.

31 states have a specific ban on client-lawyer sexual relationships.  As of now, Vermont does not.

Rather, 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 the risk that the relationship would materially limit the lawyer’s duties to the client.

The notion that a sexual relationship crosses the line only if leads to another violation is codified in Comment [17] to the current version of Rule 1.8:

  • “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.”

The PRB disagrees.  The Board’s position is that the imbalance of power inherent in the professional relationship between lawyer and client necessitates an absolute ban on a sexual relationship between the two.  At least 19 other of Vermont’s licensed professions have just such a ban.

The Court will consider the Board’s proposal at its next administrative meeting.  After that, the proposal might be published for notice & comment.  If you are interested in the topic, please keep an eye on the memos to the bar that the State Court Administrator sends via e-mail. Proposed rules are published in those memos.

For further reading, here are my previous blogs on the issue:

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