DC Bar May Allow For Attorney-Client Sex
Apparently, the District of Columbia’s attorneys are having a little trouble with a rule that they refrain from having sex with their clients.
The American Bar Association’s code word for “sex” is “transaction.” And the A-B-A’s recommended ethics rules state it is a conflict of interest for an attorney to “transact” with a client. But the District of Columbia Bar Board of Governors reportedly thinks that is a little too harsh. The “Washington Examiner” says the panel wants to word the local rules such that it could be — not is — a conflict of interest if a lawyer and client have sexual relations. Attorney Anthony Epstein says while a “categorical ban” on attorney-client sex is not appropriate, they do encourage members to “think twice, even four times before they do it.”
There’s a lawyer joke about screwing the client twice in their somewhere. Regardless, the basic rule strikes me as sound. The basic presumption is that attorneys hold a position of power over their clients and thus sex between them is not purely consensual. A 1992 journal article made the comparison with a similar but longer standing prohibition applied to doctors:
Psychotherapists’ and physicians’ sexual contact with their patients has been long held as unethical conduct. However, lawyers’ sexual contact with clients has been largely ignored in the professional literature. This article uniquely anatomizes the similarities in the vulnerabilities and power imbalances that exist between psychotherapists’ and lawyers’ relationships with patients/clients. These characteristics enable the professional to exert undue influence over the less-powerful party, and for these reasons lawyers should be held to fiduciary standards in their personal dealings with clients. The authors propose a rebuttable presumption that sexual contact between an attorney and client was obtained through the attorney’s exercise of undue influence and was therefore a breach of the attorney’s fiduciary duties to the client.
The ABA’s Model Rules of Professional Conduct contains the following:
RULE 1.8 CONFLICT OF INTEREST
(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.
(k) While lawyers are associated in a firm, a prohibition in the foregoing paragraphs (a) through (i) that applies to any one of them shall apply to all of them.
The caveats in (j) are reasonable enough. If one hired one’s wife or boyfriend to be their attorney, the presumption is that the professional relationship does not alter the prior consensual one. On the other hand, (k) strikes me as problematic, especially in the case of a very large firm. While it makes sense at a theoretical level, it is impractical at a personal level.