It’s now a violation of legal ethics in California for a lawyer to have sex with a client, unless their intimate relationship preceded their professional relationship.
The state Supreme Court approved the new rule Thursday, bringing California in line with American Bar Association standards already in effect in most other states. State Bar trustees proposed the change last year as part of an overhaul of ethical regulations for California’s 250,000 lawyers, of whom 190,000 are licensed to practice law.
Lawyers who violate ethical rules can be reprimanded, suspended or disbarred after hearings in the State Bar Court. The previous rules allowed a lawyer in California to have consensual sex with a client as long as the lawyer did not demand sex before providing legal representation.
The new rule prohibits lawyer-client sex, whether consensual or not, unless the couple were already spouses or domestic partners or had been in a sexual relationship before becoming lawyer and client.
At last year’s State Bar hearing, some lawyers told the trustees that the stricter rule would be an invasion of privacy. But the bar’s Office of General Counsel said the record of enforcement under the existing rule had been dismal: Out of 205 complaints filed with the counsel’s office involving lawyer-client sex since the rule took effect in 1992, only one had resulted in disciplinary action.
“Lawyers have bargaining power over their clients,” James Fox, the former San Mateo County district attorney who was then the State Bar president, said after the hearing. “A client may feel subtle pressure, or perhaps not-so-subtle pressure, to acquiesce in sexual conduct.”
The new rules also broaden the State Bar’s power to discipline a lawyer for harassing or discriminating against an employee or anyone else in the legal profession. The former rule allowed discipline only after a government agency or a court had found that the lawyer acted wrongfully. The new rule allows the bar to act on its own.
The state’s high court, which oversees the bar’s actions, adopted the new rules unanimously.
Chief Justice Tani Cantil-Sakauye has also urged the state Judicial Council, which she chairs, to approve a new rule requiring public identification of judges who settle claims of sexual harassment or discrimination. The council reported recently that it had paid more than $500,000 in state funds since 2011 to settle five harassment claims against judges and court employees, none of them publicly identified.