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Should a lawyer who engages in a sexual relationship with a client be subject to professional discipline for an ethics violation, regardless of the circumstances? Under one of the proposals of the American Bar Association’s Ethics 2000 Commission, the answer would be yes. While the commission has suggested many worthwhile modifications to the ABA’s Model Rules of Professional Conduct, the proposed new Rule 1.8(j), dealing with such sexual relationships, falls short of this standard. The proposed rule would provide as follows: “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” The Comment to the proposed rule makes it clear that the prohibition is an absolute one and would apply “regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client.” Several states have also adopted rules barring sexual relations between attorneys and clients. What’s wrong with such a prohibition? Obviously, a sexual relationship with a client can be fraught with significant hazards. I do not mean to trivialize those hazards or to suggest that extreme caution in this area is mere prudishness. Nevertheless, there are a number of things wrong with such a rule. First, it is overbroad. I have no quarrel with such a blanket prohibition in a profession such as psychiatry, in which the emotional vulnerability of the patient is inherent in the professional relationship — but the interactions between attorneys and clients are far more varied. If an attorney falls in love with the vice president of regulatory affairs of a corporate client, is this necessarily the business of bar counsel? If an attorney is retained to assess a company’s pension plan, is the client likely to be emotionally vulnerable? Such an overbroad prohibition would inevitably place bar counsel, in jurisdictions that adopt the rule, with the unsavory choices of bringing disciplinary charges in all cases, winking at “technical” violations, or leaving it to the disciplinary process to sort out the “innocent” cases. A second objection is that in those circumstances in which a sexual relationship is indeed harmful, remedies already exist to address the harm. No new rule is needed. A lawyer found to have engaged in a coercive or exploitative sexual relationship with a client is subject to civil liability, and possible criminal liability, under present rules. If the relationship jeopardizes the attorney’s ability to exercise independent judgment, or otherwise hinders the attorney’s ability to represent a client zealously, the existing rules require that the relationship be deemed a conflict of interest. Third, the proposed rule blurs the distinction between an aspirational manual of suggested behavior and the binding regulations of a profession. While aspirational goals are useful, they should be stated separately from the text of the mandatory rules, which (unlike the old Canons of Ethics) provide bright-line definitions of prohibited conduct. Indeed, the advice set forth in the Comment to the proposed rule is undoubtedly sound. It provides in part:
[S]uch a relationship presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impairment of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege… .

The tendency to blur good advice with the mandatory rules is tempting, but it can be pernicious. The corollary to the notion that everything that may be bad should be prohibited is that everything that may be good should be required. As might be expected, the Ethics 2000 Commission veers into this area as well. Proposed changes to the conflict of interest rules would mandate that consents by clients to conflicts be confirmed in writing. Again, it is clearly sound practice for an attorney to create a written record that client consent was obtained, and it may be useful under some circumstances for a client to possess a written document setting forth the potential hazards of a conflict. But is it helpful to place a lawyer at risk of disciplinary proceedings simply because she has neglected to write a letter, after she has obtained consent with a full oral explanation to a sophisticated client? Such rules are counterproductive because they potentially place conscientious and well-meaning attorneys into the dock of the disciplinary system. The system should rather be focused on attorneys who actually harm their clients or others, or who evidence a cavalier disregard for the proper administration of justice by willfully engaging in conduct antithetical to it. Arthur D. Burger is a partner at Washington, D.C.’s Jackson & Campbell whose practice includes representing lawyers and law firms in matters of professional responsibility. He is also a frequent instructor of the D.C. Bar’s mandatory ethics course for new admittees. His e-mail address is [email protected]

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