Sex between therapists and their clients is a grave violation of ethics. Doctors don’t operate on patients with whom they are intimately 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 sources usually 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 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.
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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.
That might sound fair – after all, lawyers and their clients are typically consenting adults – but coercion is difficult to prove, and, as in other professions called upon in times of trouble or confusion, lawyers have an inherent advantage on the vulnerable people who are seeking out their counsel.
The California State Bar – the nation’s largest group of lawyers – says it investigated 205 complaints of this kind of misconduct from 1992 to 2010. But the evidence for disciplinary action was only sufficient in one. Really?
Perhaps such lax standards is why at least 17 states draw a far more clear line around such conduct. Those states make attorney-client sex a violation of professional ethics. That’s why the California bar wants to – and should – follow suit. Yes, there will always be exceptions, such as when the relationship started before they became client and attorney.
The State Bar sees a blanket restriction as one way to clarify this unnecessarily murky area of legal conduct in California. It’s among the 60 or so changes the State Bar wants to make, perhaps trying to clear up the image of lawyers throughout the state. Those changes deal with everything from fees to disclosure.
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 it’s needed. It is needed.
Lawyers’ privacy is no different than that of therapists, surgeons or news reporters. The same goes for ethical responsibility.