California, must we really explain why lawyer-client sex isn’t OK?

The California State Bar wants to ban lawyer-client sex as part of its first ethics code overhaul since 1987.
The California State Bar wants to ban lawyer-client sex as part of its first ethics code overhaul since 1987. California State Bar

Sex between therapists and their clients is a grave violation of ethics. Doctors don’t operate on patients with whom they are involved. The U.S. Securities and Exchange Commission recently slapped the accounting firm of Ernst & Young with a $9.3 million fine after two of its auditors began dating clients, compromising their fiduciary independence. Journalists who sleep with their sources get fired.

So why should it be OK for lawyers to have sex with their clients in California? That’s the question being posed by the State Bar, and it’s not only a good one – it’s also long overdue.

California is one of the few jurisdictions that doesn’t automatically discipline attorneys who become intimate with people for whom they’re supposed to provide objective legal representation. The State Bar forbids such conduct only if the lawyer coerces, intimidates or uses “undue influence,” or if the relationship results in incompetent legal representation.

That may sound fair enough – after all, lawyers and their clients are typically consenting adults – but coercion is difficult to prove, and, like other professionals called upon in times of trouble or confusion, lawyers have an inherent power edge on the vulnerable people who seek out their counsel. The California State Bar says it investigated 205 complaints of this kind of misconduct between 1992 and 2010, but the evidence for disciplinary action was only sufficient in one.

That’s why at least 17 states draw a clear line and make attorney-client sex a violation of professional ethics. And that’s why the California bar wants to follow suit, with an exception for couples whose involvement preceded the lawyer-client relationship.

The State Bar sees a blanket restriction as one way to clarify this unnecessarily murky area of legal conduct in California. But some lawyers are resisting: The ethics committee at the Los Angeles County Bar Association worries that such a ban might violate constitutional privacy rights of its members; other lawyers insist there’s no proof that it’s needed.

It is needed. And lawyers’ privacy is no different than that of therapists, surgeons, auditors or news reporters. The same goes for ethical responsibility.