No Sex, Please, We’re Californian
Bans and prohibitions are always interesting: were people really doing that? And was it such a problem that it had to be forbidden? A forthcoming change to the rules of professional conduct for the California Bar prompts precisely those questions, and illustrates the limitations of outcomes-focused regulation.
California already has a whole rule devoted to sexual relations with clients. Rule 3-120 provides, in part, that a member of the bar shall not “continue representation of a client with whom the member has sexual relations if such sexual relations cause the member to perform legal services incompetently”. The exceptions to the rule are relations between members and their spouses and consensual relationships that predate the lawyer-client relationship.
So, at the moment, it’s ok to embark on a sexual relationship with your client, as long as it doesn’t cause you to represent them incompetently. Competence is defined elsewhere as applying diligence, learning and skill, and mental emotional and physical ability reasonably necessary.
The Supreme Court of California, which is ultimately responsible for attorney discipline, has recently approved a new set of rules(PDF link), due to come into force in November. The new Rule 1.8.10 provides:
“A lawyer shall not engage in sexual relations with a current client who is not the lawyer’s spouse or registered domestic partner, unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.”
Gone is the exception for sexual relationships where the lawyer’s competence is not impeded.
What happened? When I was studying for the California Bar Exam, we were told that the rule was only there as a result of the TV show ‘LA Law’. There was a public perception that all attorneys were at it with their clients, just like on TV, so that for the reassurance and protection of the public, that conduct had to be banned. The tightening of the rule is apparently in response to a low rate of successful disciplinary actions against attorneys who are sleeping with their clients. Presumably, it’s easy to argue that one’s professional competence was not impeded.
What is the position in England and Wales? In the world of outcomes-focused regulation, the answer, as always, is much more difficult to determine.
As far as solicitors are concerned, Outcome 3.2 is as close as it gets. That outcome requires firms and individuals to assess whether their ability to act in the best interests of their clients is impaired by any personal relationship. The indicative behaviours do not address personal relationships. That probably means that solicitors are subject to the same rule as California’s current rule: it’s ok as long as the work doesn’t suffer.
As usual, the BSB Handbook(PDF link) is even less helpful. Core Duty 2 requires barristers to act in the best interests of each client. Core Duty 5 forbids barristers from behaving in a way which is likely to diminish the trust and confidence which the public places in the individual and in the profession. Rule rC8 requires barristers to refrain from doing anything which could reasonably be seen by the public to undermine their honesty, integrity and independence. Guidance gC25 mentions conduct which is an abuse of the barrister’s professional position. Guidance gC27 exempts conduct in a barrister’s private or personal life, except where it’s an abuse of their professional position.
By a much more circuitous route, one can see that barristers may also be under the same obligation: consensual relationships are ok, provided counsel can still act in the best interests of the client. But how much more helpful would it be to have a bright line rule?
So, although attorneys in California may face inroads into their personal freedom and privacy, at least there is the luxury of knowing precisely what the professional obligations entail. Or maybe it’s just not a problem in England?
Fortunately, this has never happened to me, whether as a member of the English bar or the California bar. You can see my profile here.