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.