May 2017 | Earn one hour of MCLE Credit in Legal Ethics
By Michele Trausch
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Ask a group of California lawyers whether having sex with a client is ethically prohibited and
you will get varied responses. Some will say it's not allowed under any circumstances; others may
have never even considered the issue and would say there is nothing wrong with it.
In fact, California does have specific rules regarding this sometimes-thorny issue and this
article will enlighten and guide any California lawyer contemplating such a relationship.
California's rules on this topic are found in two places: Business & Professions Code sections
6106.8 and 6106.9 and Rule of Professional Conduct 3-120. These two mirror each other with some
Business and Professions Code sections 6106.8 and 6106.9 are part of the State Bar Act (B&P
6000 et seq.). Prior to their enactment in 1989, there was no California rule at all regarding
sex with clients. The Legislature instructed the State Bar to devise a rule of professional
conduct to address this situation (B&P Code section 6106.8(c)) and further provided that
intentional violation of the rule "shall constitute a cause for suspension or disbarment." B&P
Code section 6106.8(d).
Business and Professions Code section 6106.9 prohibits three types of conduct:
(1)Requiring or demanding sexual relations with a client incident to or as a condition of
(2)Employing coercion, intimidation, or undue influence in entering into sexual relations
with a client;
(3)Continuing representation of a client if sexual relations with that client cause the
attorney to fail to perform legal services competently.
The statute includes an exception for spouses or existing relationships (B&P 6106.9(b)), and
includes in this exception "persons in an equivalent domestic relationship." And it excludes from
discipline other lawyers in a firm who are not sexually involved with a client when the lawyer
who is so involved does not work on the client's matter. B&P 6106.9(c).
The statute provides that any complaint made to the State Bar alleging a violation of this
statute "shall be verified under oath" by the complainant (B&P 6106.9(e)) and contains a
definition of "sexual relations" (B&P 6106.9(d)).
Based on the directive from the Legislature, the State Bar proceeded to draft — and the
California Supreme Court approved — Rule of Professional Conduct 3-120, operative in September of
1992. The Rule is similar to B&P 6106.9 in almost every aspect.
Rule 3-120 (A) defines "sexual relations" using the same language as is found in the statute.
Subsection (B) outlines prohibited conduct, mirroring B&P 6106.9.
The exceptions to the prohibitions are nearly the same as found in the statute. Sexual
relations with a lawyer's own spouse or with someone the lawyer is already involved with before
the representation began are not prohibited by this rule. Rule 3-120(C). And when a lawyer in a
firm has sexual relations with a client, but the client is represented by other lawyers in the
firm and not by the lawyer having the relationship, those actually working on the client's matter
are not subject to discipline. Rule 3-120(D). Thus, California's ethical rules do not consider it
a conflict for a law firm to represent a client involved in a sexual relationship with a member
of the law firm who is not working on the client's matter.
The only differences between the statute and the rule are (1) the inclusion of "persons in an
equivalent domestic relationship" in the statute, but not in the rule, and (2) the requirement
found in the statute that a complaint must be verified under oath.
In proposing Rule 3-120, the State Bar noted that California had a legitimate interest in
regulating the practice of professions operating within its jurisdiction; in protecting the
public welfare in relation to services provided; in promoting competent legal representation by
avoiding emotional bias and loss of professional judgment; and in promoting competent legal
representation through the avoidance of conflicts of interest resulting from lawyer-client sexual
The State Bar, in enacting Rule 3-120 — and presumably the Legislature in enacting B&P Code
6106.9 — was concerned about sexual exploitation of a client by a lawyer, particularly an
emotionally vulnerable client such as might be found in family law, criminal law or immigration
representations. A secondary concern is the obligation of a lawyer to act competently (as
required by Rule of Professional Conduct 3-110) and the danger of an emotional relationship
impinging on that obligation.
The Orange County Bar Association, in its Formal Opinion 2003-02, set forth four persuasive
dangers arising from lawyer-client sexual relations: (1) the inability of the client to provide
informed consent; (2) conflicts of interest; (3) impaired independent judgment on the part of the
lawyer; and (4) compromise of confidences.
The relationship between lawyer and client is a fiduciary relationship. ("[T]he effective
functioning of the fiduciary relationship between attorney and client depends on the client's
trust and confidence in counsel." Fremont Reorganizing Corp. v. Faigin (2011) 198
Cal.App.4th 1153, 1174.) Because the lawyer holds a high position of trust and
confidence, it is rarely an equal relationship. Therefore, sex between lawyer and client can
involve unfair exploitation of the client. Further, because of the lawyer's emotional
involvement, the lawyer may be unable to represent the client without sacrificing his or her
independent professional judgment.
By comparison with California's rule and statute, the American Bar Association Model Rule 1.8
(j) — amended in 2002 — absolutely prohibits sexual relations with a client unless there was a
pre-existing relationship when the legal representation began. As with California's approach,
there is no imputation to other lawyers in the same firm.
Likewise, the Restatement 3d, Law Governing Lawyers, section 16 prohibits a lawyer from
entering into a sexual relationship with a client based on the duty of loyalty.
In proposing Rule 3-120, the State Bar of California at the time rejected the absolute bar
later adopted by the ABA, believing that such a rule would be overly broad and unduly limit the
free association rights of the lawyer and the client.
In its Formal Opinion 2003-02, the Orange County Bar Association argued that California's Rule
3-120 does not go far enough and that all sexual relationships between lawyers and clients should
be barred as set forth in the ABA Model Rule.
What about a situation where a lawyer becomes sexually involved during a representation but
the client is a corporation or government agency? The discussion following Rule 3-120 addresses
this issue by providing that "any individual overseeing the representation shall be deemed to be
the client," referring us to Rule 3-600. Thus, in an employment matter, the "client" might be
deemed to be the director of human relations for the corporate entity rather than the entity's
general counsel or CEO.
In addition to the disciplinary restrictions found at the Business and Professions Code and
Rule 3-120, a client who believes he or she has been taken advantage of or incompetently
represented due to a sexual relationship with his or her lawyer could sue for professional
negligence. One can imagine other claims arising out of a relationship gone sour, such as
intentional infliction of emotional distress or breach of fiduciary duty. ("Violation of the
rules can be used, however, to establish a breach of fiduciary duty." People ex rel. Herrera
v. Stender (2012) 212 Cal.App.4th 614, 632.) And although a lawyer's partners may
not be subject to discipline, their law firm could face civil claims for the acts of their
partner or member who decides to have a sexual relationship with a firm client.
There are only a few reported cases on this topic. This may be the result of lawyers not
wishing to have their misdeeds publicized, clients being reluctant to pursue charges, or a number
of other factors, including the difficulty in prosecuting a complaint where there could easily be
two sides to the story.
One case — actually decided before final enactment of the Business and Professions Code
sections and Rule 3-120 — is McDaniel v. Gile (1991) 230 Cal.App.3d 363. The action was
initiated by the lawyer, McDaniel, who claimed unpaid fees from his former client, Ms. Gile, whom
he purportedly represented in her divorce. In response to his collection action, she filed a
cross-complaint alleging breach of contract, intentional infliction of emotional distress, and
legal malpractice, among other claims. The trial court found that Ms. Gile could not state a
cause of action based upon the lawyer's alleged sexual advances and granted him summary judgment.
The Court of Appeal, however, reversed, reciting in detail the outrageous conduct of lawyer
McDaniel who essentially demanded sex in exchange for performing the legal services he had
contracted to perform. After Ms. Gile refused his advances, McDaniel basically abandoned her and
her case, would not return her phone calls, and failed to appear in court on her behalf. One
witness cited by the court exemplified his approach: "when a woman client came to him, she was
extremely vulnerable, so if she went to bed to get better service from him, 'so be it.'" Id,
Another decision, again predating Rule 3-120, is Barbara A. v. John G. (1983) 145
Cal.App.3d 369. This was also a divorce case, and the lawyer was found to have withheld legal
services when sexual favors were not granted by the client. The Court of Appeal found that causes
of action for battery and deceit were properly pled. The lawyer represented to his client that he
was sterile. The client allegedly consented to sexual relations but then became pregnant, causing
her severe physical and emotional injury. Without addressing the issue as to whether consensual
lawyer-client sexual relations constituted a breach of ethics per se, the court found that such
behavior could be a violation of a fiduciary duty if the misrepresentation and reliance occurred
as a result of the lawyer-client relationship.
As mentioned earlier, arguments as to freedom of association and rights to privacy between
consenting adults have been raised in opposition to imposition of restrictions on a lawyer's
choice of sexual partners. But as the court held in Barbara A. v. John G., id at 385:
"although the constitutional right to privacy normally shields sexual relations from judicial
scrutiny, it does not do so where the right to privacy is used as a shield from liability at the
expense of the other party."
The State Bar of California has adopted one of many new or revised rules which were forwarded
to the California Supreme Court in late March. The Supreme Court will then consider whether to
approve them, thus possibly changing our current Rules of Professional Responsibility. One of
those revised rules is 1.8.10, which is similar to the ABA Model Rule. It would prohibit sex with
a client unless the client was a spouse or the sexual relationship was on-going and pre-existing.
In approving this proposed rule, the State Bar's Board of Trustees heard public comment. Although
many were in favor of the rule, others objected to it as an invasion of a lawyer's rights of
There are good arguments to support imposition of a more definite rule. State Bar records show
that it investigated 205 complaints of misconduct under the present Rule 3-120 from the period of
1992 to 2010, but imposed discipline only in a single case. The Trustees were convinced that the
public needs better protection, that lawyers need uncertainty removed, and that State Bar
prosecutors need to be able to more easily establish a case for discipline. The dearth of
discipline imposed to date highlights the ambiguity of the current rule and the lack of definite
standards to protect clients.
It is important to remember, however, that until and unless the California Supreme Court
actually approves this new rule, the current restrictions found in 3-120 remain in force.
It is also important to remember that even if the proposed rule 1.8.10 is adopted, the
Business & Professions Code, which can be modified only by the State Legislature, will remain as
is. Whether or not these different standards will lead to confusion remains to be seen.
The relationship between a lawyer and client is by its very nature unbalanced. This disparity
is particularly the case in divorce and custody disputes, where emotions on the part of the
client run high and may cause the client to place a higher degree of trust in the lawyer than in
a less volatile matter. Criminal defendant clients, immigration clients, clients in bankruptcy,
and others may also be in a vulnerable position.
Our current disciplinary scheme allows for sexual relations between a lawyer and a client as
long as the legal representation is not adversely affected. The potential pitfalls facing a
lawyer who decides to have such a relationship are numerous enough that such a decision should be
very carefully weighed. We may have a new rule in place before long that could make that option
Michele K. Trausch, now retired, was formerly a partner and general counsel at Hanson
Bridgett LLP. She is a member of the State Bar's Committee on Professional Responsibility and
Conduct (COPRAC). The opinions here are her own.
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