California Lawyers Dreaming (About Sex With Clients)

There are plenty of nice people out there, and maybe even one or two who might want to have sex with you (for free). Find them. Go and search. But leave your clients, their wives, husbands, sons and daughters alone. This makes some California lawyers sad.

The nation’s largest state bar association is overhauling ethics rules for attorneys for the first time in 30 years, and some lawyers are unhappy about a proposal that would open them up to discipline for having sex with clients.

California currently bars attorneys from coercing a client into sex or demanding sex in exchange for legal representation.

Yes, that would be the same California that championed the affirmative consent approach to collegiate sex, even though they had no clue what it meant, So what? It’s sex, and when it comes to sex, one can never be too cautious and harsh. Except when it comes to lawyers.

Supporters of an all-out ban say the relationship between a lawyer and client is inherently unequal, so any sexual relationship is potentially coercive. But some attorneys say it’s an unjustified invasion of privacy.

Coercive is such a harsh word. After all, it’s not like Cali lawyers use the old hitchhiker’s code, “gas, grass or ass; nobody rides for free,” right? Except that if someone lacks the funds to pay that piece of the fee, even the ugliest mutt of a lawyer starts looking more attractive.

And it’s not just a money thing. People believe that lawyers have secret magic powers to win cases that are saved only for the clients they hold most dear. It’s untrue, of course, but that’s never stopped people from believing. The more desperately they want to win, the deeper their belief in voodoo. And if it takes a little, you know, to become one of the lawyer’s favored clients, well…

As for an “unjustified” invasion of their privacy, no one forces an otherwise decent human being to leave it all behind and join the bar. We make a choice. We choose to enjoy the rights and privileges that come with our ticket and the monopoly of representing other human beings. It may not be a good deal these days, but that’s a different problem.

In exchange for becoming a member of a learned profession, we agree to surrender certain rights. Chief among them is free speech. Try yelling “fire” in a crowded courtroom. Or more to the point, we are prohibited from disclosing client confidences. It’s not that we can’t mouth the words. It’s not that we choose not to rat out our clients. We are prohibited, despite the First Amendment right to express any damn thing we want. We agree to this. We give this slice of speech up in order to be lawyers.

But does that make it justified that lawyers would be prohibited from having sex with any client, even without open coercion or demand? Yes. Absolutely. No question whatsoever.

There are many things lawyers and clients cannot, and should not, do. A lawyer cannot enter into a business transaction with a client that creates an adverse situation because we are fiduciaries, holding a relationship of trust rather than an arm’s-length relationship. We cannot take advantage of our clients, and engaging in business transactions involves the inherent potential of abusing our client’s trust.

If the client has independent counsel, or is informed in writing that he should, then the transaction would be permissible. Maybe sex should be negotiated through independent counsel? Maybe lawyers should provide written notice and a reasonable opportunity to seek the advice of an outside sex counselor?

Or maybe the obvious and straightforward answer is just don’t have sex with a client. Or a client’s spouse. Or kids. Want sex? Get it on your own, outside of your fiduciary relationship. If that’s too hard for you to accomplish, then tough nuggies, pal.

The proposal is part of a long-awaited shake-up of the state bar association’s ethics rules for attorneys, which were last fully revised in 1987. Lawyers who violate the regulations are subject to discipline ranging from private censure to loss of their legal license.

That this is the sort of ridiculous issue subject to challenge is one thing. But then, with California shaking up its ethics rules, what else might be on the table, and less controversial than horny lawyers pissed they can’t abuse their relationships with clients?

Well, there’s always the newly enacted Model Rule 8.4(g).  Whether that’s on the table is unknown, and given the resistance to a rule as obvious as no sex with clients, one might hope that an absurd rule like 8.4(g) doesn’t stand a chance.

But this is California, and who knows what might find support amongst the very official kale-munchers. Though it would be bizarrely ironic if the shake-up resulted in the adoption of an untenable rule like 8.4(g) but rejected a rule prohibiting sex with clients.

34 thoughts on “California Lawyers Dreaming (About Sex With Clients)

            1. Patrick Maupin

              I guess you’re right — Austin’s better. Else, why am I surrounded by refugees from California?

            2. losingtrader

              Damn right. You get to pay 13% state income tax while Patrick spends his Wells Fargo money on LSD tabs at Eyeore’s birthday party , tailgating with Tito’s vodka, floating down rivers on inner tubes, and ice cold natural springs. Plus BBQ.

              But , Jim , you don’t have to go to Texas when NV offers the same tax benefits, plus much stupider people.
              FYI Pat, your story was linked today to the View From the Wing frequent flyer blog that has 50,000 readers in case Scott sees a lot of hits on this post.

            3. Patrick Maupin

              Thanks for spreading the word about the TCPA, losingtrader. But please don’t tell any more Californicators about Eeyore’s Birthday Party.

  1. Jim Tyre

    No worries, Scott, I don’t need no stinkin’ ethics rule to not have sex with with you should you become my client.

  2. Erik H.

    I have sex with one of my clients all the time–I’m glad I don’t like in California!

    Of course, she IS my wife….

  3. Rick Horowitz

    I can remember laughing in law school when this came up. The teacher (my law school couldn’t afford “profs”) told us that California did not have a rule against having sex with clients.

    The reason I laughed is that I thought, “Who the hell needs a rule to tell them that it’s wrong to have sex with clients?”

    Frankly, it seems to me that if you need a rule to tell you that, you shouldn’t be a lawyer in the first place: there’s something wrong with your brain.

  4. JimEd

    “Maybe sex should be negotiated through independent counsel?”

    Kids in the Hall were way ahead of you on that:

      1. JimEd

        It’s a 27 year old video, where independent counsel negotiate the terms of a possible sexual relationship.

        It’s from the “Kids in the Hall” in 1989. The first 3 seconds and last 50 are just some navel gazing from the actors 27 years later.

        Also, the cake is a lie.

        1. SHG Post author

          What is it about going orthogonal, then responding by going even farther orthogonal. As in, what the fuck does any of this have to do with the post I wrote? Why are you taking up my comment space with this shit? Who asked you in the first place? Who asked you for more? Who gives a fuck? Why?

          This is all rhetorical. Don’t answer.

  5. Hull

    I’m licensed in CA. This is a good development. I’ve taken a well-known stand against sex with clients. Or with anyone you’re not married to. Who would do such a thing? Some people.

  6. Bruce Godfrey

    Not every rule needs to be a Rule. As this blog has noted elsewhere, ethics includes but is not coterminous with the rules enforced by formal discipline. Examples.

    1) Ann Attorney meets Chuck Client in a initial consult. Chuck needs a divorce lawyer, and Ann gets to work – first on Chuck’s legal business and then, most unwisely, on Chuck intimately. Ann is in a straight up ethical conflict going beyond the question of sex itself: Ann damaged Chuck’s legal position in the divorce while purporting to act as a fiduciary. Ann will face hard discipline even without a no-sex rule, because it’s a conflict of interest without a specific no-sex Rule.

    2) Barbara Barrister meets Larry Leadfoot at a barbecue. Larry wants representation on a speeding ticket for doing 65 in a 50. Barbara gives him her card on his request. He hires her for $400 to take care of this business. During the representation and before the court date, he decides to ask her out. Between their 2nd and 3rd date, the court date arrives; he is found guilty, fined $75.00 and given two points, She files a motion for reconsideration for later leniency. While that motion is technically pending post-trial, they starting big-D dating with overnight stays.

    Is a formal disciplinary Rule necessary in Barbara’s case? I’d suggest that Maryland’s disciplinary approach – analyzing the matter under conflict of interest principles, rather than a blanket no-sex Rule – suffices to protect the public and thwart conduct prejudicial to justice. Making something a disciplinary violation imposes a squeal duty on all lawyers, and perhaps Bar Counsel has more important things to do than police the bedrooms of the Bar and field every complaint of every crank and pissed-off ex who claims, “he gave me legal advice once before our first date.” Ethics and prudence need rules; maybe they don’t need this additional one.

    1. Fyodor

      Any ethical rule will have some conceivable scenarios where the violation doesn’t seem that harmful. If an opposing party is getting bad advice from his attorney and you meet with him without his attorney and convince him of that aren’t you doing him a favor? Should you really get punished for doing something *helpful* to another person? The problem is that once that door is opened lawyers will figure out all sorts of ways to justify their shenanigans. So you need a bright line rule to keep misconduct away. Someone who wants to bang his client will rationalize how the banging isn’t really harmful or coercive.

      For any given California attorney 99.99 percent of the population will not be his/her clients. Date one of those people.

    2. Noah

      We know this set-up works because it’s already working in CA. I don’t really oppose a ban on sex with clients, but it’s a solution in search of a problem.

      1. SHG Post author

        It works, except when it doesn’t. Like most things. Then again, keep yer dick in yer pants works too, and easier.

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