Rule on lawyer and client sex rejected

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The Supreme Court of Virginia has rejected changes proposed by the Virginia State Bar to the Rules of Professional Conduct prohibiting a lawyer from having sexual relations with a current client.

In a letter dated July 21, the court denied the VSB’s petition to amend Rules 1.8, 1.10 and 1.15. No reason for the denial was given in the court’s letter.

The denial marks the end of a review process that the VSB Standing Committee on Legal Ethics began in 2019. The VSB sought to implement changes that would have brought the commonwealth’s rules on the issue in line with the American Bar Association Model Rules and the rules of at least 43 other jurisdictions.

“The Legal Ethics Committee spent almost two years looking at this issue and concluded this was a problem that needed to be addressed and the best way to do so was to amend Rule 1.8, in order to make it clear that sex between attorneys and clients is prohibited,” Ethics Committee chair Dennis Quinn said via email.

Quinn continued, “The Bar Council and Executive Committee debated the issue extensively and passed the amendment overwhelmingly. The Supreme Court apparently disagreed. That is the Court’s prerogative.”

The proposed amendment by the VSB Standing Committee on Legal Ethics would have added a new paragraph to Rule 1.8. The paragraph would have explicitly prohibited “a lawyer from having sexual relations with a current client unless the relationship predated the lawyer-client relationship.”

“Adopting proposed Rule 1.8(k) sends a clear message that this conduct is not acceptable under any circumstances,” the VSB’s petition to the court states.

Currently, the issue of sexual relations of a client is not addressed in the rules of professional conduct. Instead, the issue is addressed in Legal Ethics Opinion 1853, which was issued in 2009.

“The situation where the sexual relationship develops during the attorney-client relationship risks more probable ethical breaches and in most instances forms the basis for lawyer discipline,” the opinion states. The opinion advises attorneys to avoid such conduct to avoid violating other rules related to competent representation, wrongful exploitation of the fiduciary relationship between lawyer and client and conflicts of interest. In essence, the ethics opinion states that a lawyer should “refrain from” sex with a client, but does not prohibit the practice explicitly.

The proposed amendment would have “establish[ed] a bright-line rule to that effect, based on the same concerns about conflict of interest and overreaching.”

“Although courts and disciplinary cases have condemned lawyer-client sex, lawyers have continued to engage in sexual relations after commencement of the professional relationship, asserting that if the sexual relationship is between two consenting adults, the matter is none of the regulatory bar’s business,” the VSB’s petition to the court states.

The petition continues, “The concept that these relationships are truly consensual is untenable…Reported cases are filled with clients who have said that they submitted to their attorney’s sexual advances out of fear that refusing to submit would affect the quality of their representation at a time of vulnerability and dependence on the attorney.”

According to the VSB, the proposed rule changes would have brought the commonwealth’s rules in line with the American Bar Association Model Rules and the rules of at least 43 other jurisdictions. Those jurisdictions have rules that govern the issue of sexual relations between clients and attorneys, rather than the advisory ethics opinion that Virginia has.

The ABA’s rule on sexual relations between clients and attorneys states verbatim what the VSB Ethics Committee focused on: “a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

In April, the Virginia State Bar Council endorsed the rule change by a vote of 54-2, advancing the recommendation to the Supreme Court of Virginia. In presenting the rule, Quinn told Bar Council members that divorce lawyers have reported encountering clients who have complained of unwanted advances from previous counsel.

“There’s a good argument that, in those circumstances, there is no such thing as consent,” Quinn said at the Bar Council meeting.

At the same meeting, Bar Council approved additional proposed amendments to the rules of professional conduct. Council approved proposals to change the phrasing of portions of Rule 1.10 and Rule 1.15 to make clearer where the rules are describing mandatory duties. Additionally, the rule on prohibited transactions was amended to align with existing rules on the standard for confidentiality. The amendment would have narrowed the standard of confidentiality from the existing standard of “information relating to representation of a client” to information protected by Rule 1.6.

These additional proposed amendments were also denied by the Supreme Court of Virginia on July 21.