SAN FRANCISCO (AP) — The State Bar of California approved an ethics rule that would subject lawyers to discipline for having sex with their clients.
California currently bars attorneys from coercing a client into sex or demanding sex in exchange for legal representation.
But voluntary sex between attorneys and clients is not prohibited as long as it does not cause the lawyers to "perform legal services incompetently."
The new rule would completely ban sex between lawyers and clients with some exceptions.
As of May 2015, 17 states had adopted a blanket sex ban drafted by the American Bar Association, according to an ABA committee that looked at implementation of the group's ban.
Still, California's proposal was divisive.
Supporters said the relationship between a lawyer and client is inherently unequal, so any sexual relationship is potentially coercive. But some attorneys said the blanket ban was an unjustified invasion of privacy.
The bar's Board of Trustees passed the rule Thursday as part of a long-awaited overhaul of attorney conduct standards that revised or crafted 70 ethics rules. The new rules approved Thursday will now go before the California Supreme Court, which has final say over them.
The bar's ethics rules for attorneys were last fully revised in 1987. Lawyers who violate the regulations are subject to discipline ranging from private censure to loss of their legal license.
James Ham, an attorney on a state bar commission that worked on the rules, said it's not a good idea for lawyers to have relationships with clients, but he objected to disciplining attorneys for consensual relationships "where there was no harm."
"The real issue is a philosophical, constitutional one about how intrusive government can be in people's lives," he said.
Daniel Eaton, another member of the commission, said the existing client sex rule wasn't working. He pointed to a lack of disciplinary action against attorneys.
Between September 1992 and January 2010, the state bar investigated 205 complaints of misconduct under the current sex restriction, according to an analysis of data that accompanied the proposal. It imposed discipline in only one case.
"It is important that the California State Bar prohibit as an ethical matter attorneys from exploiting their clients sexually," Eaton said.
He said the only way to accomplish that is with a blanket sex ban that removes uncertainty for attorneys and the challenge of proving exploitation for investigators.
The revisions commission modified the proposal at its meeting in October to create an exception from the sex ban for a lawyer who is representing a spouse or registered domestic partner. It also required the state bar to consider whether a client would be "unduly burdened" by an investigation of sexual misconduct if someone other than the client filed the complaint.
The rule also allows sex between a lawyer and client when the sexual relationship preceded the professional relationship.
Other approved changes would allow the state bar to discipline attorneys for discrimination even without a separate finding of wrongdoing. The current rule requires a final determination of wrongful discrimination in a lawsuit or other proceeding before the state bar can take action.
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