PROPOSED RULE OF PROFESSIONAL CONDUCT 1.8.10
(Current Rule 3-120)
Sexual Relations With Client
EXECUTIVE SUMMARY
The Commission for the Revision of the Rules of Professional Conduct (“Commission”) has
evaluated current rule 3-120 (Sexual Relations With Client) in accordance with the Commission
Charter, with a focus on the function of the rule as a disciplinary standard, and with the
understanding that the rule comments should be included only when necessary to explain a rule
and not for providing aspirational guidance. In addition, the Commission considered the national
standard of the American Bar Association (“ABA”) counterpart, Model Rule 1.8(j). The
Commission also reviewed relevant California statutes, rules, and case law relating to the
issues addressed by the proposed rules. The result of the Commission’s evaluation is proposed
rule 1.8.10. This proposed rule has been adopted by the Commission for submission to the
Board of Trustees for public comment authorization. A final recommended rule will follow the
public comment process.
The main issue considered was whether to retain California's current approach that prohibits
sexual relations in limited circumstances where the relations are: (i) required as a condition of a
representation; (ii) obtained by coercion, intimidation or undue influence; or (iii) cause the lawyer
to perform legal services incompetently; or to adopt the approach used in most jurisdictions that
follows ABA Model 1.8(j) in prohibiting all sexual relations unless the consensual sexual
relationship existed at the time that the lawyer‐client relationship commenced.
Proposed rule 1.8.10 substantially adopts Model Rule 1.8(j). The Commission believes that
California’s current rule renders it difficult to prove a violation in the typical circumstance of
consensual sexual relations1 because the rule is not a bright-line standard. For example, where
consensual sexual relations occur, the State Bar must prove that the relations caused the
lawyer to perform legal services incompetently. While this might represent a regulatory policy of
imposing a least restrictive prohibition on conduct protected under a constitutional right of
privacy,2 it imposes a complexity that is likely frustrating enforcement.3

1

The current rule also prohibits sexual relations that are not consensual as well as improper conduct
seeking sexual relations that may or may not result in the occurrence of any sexual relations (e.g.,
relations sought or obtained by coercion or as a quid pro quo for receiving legal services for a lawyer).
The proposed rule would no longer include these aspects of the current rule. Lawyers would continue to
be subject to discipline for such misconduct under both Business and Professions Code § 6106 (acts
constituting moral turpitude) and § 6106.9 which is the statutory analog to current rule 3-120. Moving to
the Model Rule standard in proposed Rule 1.8.10 is not intended to abrogate these existing statutory
prohibitions.
2

Although the general prohibition in the Commission’s proposed rule is more restrictive than the
current rule in regards to consensual sexual relations, it is not believed to be unconstitutional. In
connection with the work of the first Commission, the State Bar inquired on more than one occasion with
other jurisdictions that have the same or similar rule to Model Rule 1.8(j) (most recently in 2012) as to
whether their rules have been challenged based on a constitutional right to privacy. No jurisdiction
indicated a constitutional challenge and the published disciplinary case law of other states do not show
any such challenges.
3

There are no published California disciplinary cases applying rule 3-120.

RRC2 - 1.8.10 [3-120] - Executive Summary DFT4 (11-1-16).docx

 The potential for the current rule requirements to frustrate enforcement becomes apparent upon
close examination of California’s duty of competent representation that is formulated to be
consistent with Supreme Court precedent. Discipline case law provides that mere negligence is
not a violation of the duty of competence. In Lewis v. State Bar (1981) 28 Cal.3d 683 [170
Cal.Rptr. 634], the California Supreme Court reaffirmed this principle stating that: “This court
has long recognized the problems inherent in using disciplinary proceedings to punish attorneys
for negligence, mistakes in judgment, or lack of experience or legal knowledge.” (Lewis v. State
Bar at p. 688.) As a result of this longstanding interpretation of the duty of competence, even if a
lawyer engages in consensual sexual relations that cause an act of simple negligence in the
performance of a legal service, the lawyer cannot be held to have violated rule 3-120(B)(3). If
the Commission’s proposed rule is adopted, this outcome would be different because all
consensual sexual relations arising during the lawyer-client relationship would constitute a rule
violation regardless of whether the lawyer provided competent legal services.
The Commission also believes that this bright-line prohibition will have a salutary deterrent
effect that is not present in the current California rule. Public commentators in connection with
the first Commission’s project provided anecdotal evidence of misconduct that was not deterred
by the current rule. In addition, other professions, such as psychotherapists, have stricter rules
that are more protective. By comparison with the restrictions in those professions, retaining the
current rule could diminish public confidence in the legal profession.
In adopting the language of Model Rule .1.8(j), proposed Rule 1.8.10 would eliminate the
express exception in the current rule that permits sexual relations between lawyers and their
spouses. However, the Commission notes that: (1) most other jurisdictions do not have an
express spousal exception but have not experienced known problems; and (2) a spouse who
later becomes a client would fall under the exception for sexual relations that predate a lawyerclient relationship.
Proposed Rule 1.8.10 retains the definition of sexual relations in the current rule. This is a
departure from the rule adopted in most jurisdictions but the Commission believes it is
warranted because the definition promotes compliance and because the same definition
appears in the statutory prohibition on sexual relations with a client (subdivision (d) of Business
and Professions Code section 6106.9). In addition, the proposed rule includes a new comment
(Comment [3]) that provides a reference to the statutory prohibition.
Post-Public Comment Revisions
After consideration of public comment, the Commission revised the text of paragraph (a) to
include an express exception for sexual relations with a client who is the lawyer’s spouse or
registered domestic partner. The Commission also added a new paragraph (c) that is intended
to value the privacy rights of a client in those circumstances where a person other than the
client alleges a violation of the rule. New paragraph (c) was derived in part from the
Commission’s consideration of the comparable rule in Minnesota. The language in the
Minnesota Rule 1.8(j) provides that: “(4) if a party other than the client alleges violation of this
paragraph, and the complaint is not summarily dismissed, the Director of the Office of Lawyers
Professional Responsibility, in determining whether to investigate the allegation and whether to
charge any violation based on the allegations, shall consider the client's statement regarding
whether the client would be unduly burdened by the investigation or charge.”
In addition, in Comment [1] the Commission removed the brackets around a cross reference to
Rule 2.1. The brackets marked the reference to Rule 2.1 as being tentative until the

RRC2 - 1.8.10 [3-120] - Executive Summary DFT4 (11-1-16).docx

 Commission determined whether to recommend a version of that rule. The Commission has
now considered Model Rule 2.1 and is recommending that a version of that rule be a part of the
State Bar’s comprehensive revisions. Accordingly, the brackets are omitted in the current
version of proposed Rule 1.8.10.
(Staff note: The dissent below was submitted in connection with the Commission’s current
version of proposed rule 1.8.10.)

RRC2 - 1.8.10 [3-120] - Executive Summary DFT4 (11-1-16).docx

 Commission Member Dissent to the Recommended Adoption
of Proposed Rule 1.8.10, Submitted by James Ham
I dissent. While I agree that sexual relations with a client is usually unwise, and that sexual
relations involving a quid quo pro, coercion, intimidation or undue influence, or under
circumstances where the lawyer’s competence is impaired, should subject a lawyer to discipline,
I do not support the proposed expansion of the rule to prohibit all sexual relations, under any
circumstances, under penalty of discipline.
Without question, some attorney-client relationships involve vulnerable clients and unequal
bargaining positions. The existing rule protects the public against attorney misconduct in those
cases by making it cause for discipline to engage in sexual relations in exchange for legal
services, or under circumstances involving coercion, intimidation, or undue influence.
The proposed rule, however, bans all sexual relations, regardless of circumstance. I agree with
the views expressed by members of the public, as well as the Los Angeles County Bar
Association opposing this rule, and note the lack of consensus among the members of
COPRAC concerning the wisdom of the proposed total ban. The existing rule articulates a
proper balance that protects the public against unethical lawyer conduct, while respecting the
rights of citizens to be free from overly intrusive and overbroad regulation of private affairs
between consenting adults.
There is no empirical or even reliable anecdotal evidence that a complete ban on sexual
relations is needed to protect the public or regulate the legal profession effectively. If, under the
existing rule, the evidence is insufficient to support attorney discipline, the answer is not to pass
a rule dispensing with proof of coercion, undue influence, quid pro quo or lack of competence,
and imposing discipline based merely upon the fact that sexual relations occurred. Proponents
of a complete ban cannot articulate why a lawyer should be disciplined for sexual relations with
a mature, intelligent, consenting adult, in the absence of any quid pro quo, coercion, intimidation
or undue influence. Nor can the proponents establish that the existing rule presents evidentiary
burdens that are unjustified and which cannot be met by complaining witnesses.
The paradigm that all attorney-client relationships involve unequal bargaining power does not
apply in many legal relationships and therefore cannot supply the rationale for this rule.
Likewise, any attempt to analogize the legal professional to medical professionals or to
psychologists is not persuasive because the range of relationships between legal professionals
and clients is vastly different, as is the nature of the work performed. A complete ban would
infringe personal rights in circumstances where there is no undue influence, coercion or risk to
competent representation.
The proposed rule also vests entirely too much discretion in prosecutorial authorities, who may
apply the complete ban rule against some, but not others, in an unfair, arbitrary or capricious
manner.

RRC2 - 1.8.10 [3-120] - Executive Summary DFT4 (11-1-16).docx

 Rule 1.8.10 [3-120] Sexual Relations With Current Client
(Commission’s Proposed Rule Adopted on October 21–22, 2016 – Clean Version)
(a)

A lawyer shall not engage in sexual relations with a current client who is not the
lawyer’s spouse or registered domestic partner, unless a consensual sexual
relationship existed between them when the lawyer-client relationship
commenced.

(b)

For purposes of this Rule, “sexual relations” means sexual intercourse or the
touching of an intimate part of another person* for the purpose of sexual arousal,
gratification, or abuse.

(c)

If a person* other than the client alleges a violation of this Rule, no Notice of
Disciplinary Charges may be filed by the State Bar against a lawyer under this
Rule until the State Bar has attempted to obtain the client’s statement regarding,
and has considered, whether the client would be unduly burdened by further
investigation or a charge.

Comment
[1]
Although this Rule does not apply to a consensual sexual relationship that exists
when a lawyer-client relationship commences, the lawyer nevertheless must comply
with all other applicable rules. See, e.g., Rules 1.1, 1.7, and 2.1.
[2]
When the client is an organization, this Rule applies to a lawyer for the
organization (whether inside counsel or outside counsel) who has sexual relations with
a constituent of the organization who supervises, directs or regularly consults with that
lawyer concerning the organization’s legal matters. See Rule 1.13.
[3]
Business and Professions Code § 6106.9, including the requirement that the
complaint be verified, applies to charges under subdivision (a) of that section. This Rule
and the statute impose different obligations.

RRC2 - 1.8.10 [3-120] - Rule - XDFT1 (10-26-16).docx

1

 Rule 1.8.10 [3-120] Sexual Relations With Current Client
(Commission’s Proposed Rule Adopted on October 21–22, 2016 –
Redline to Public Comment Draft Version)
(a)

A lawyer shall not engage in sexual relations with a current client who is not the
lawyer’s spouse or registered domestic partner, unless a consensual sexual
relationship existed between them when the lawyer-client relationship
commenced.

(b)

For purposes of this Rule, “sexual relations” means sexual intercourse or the
touching of an intimate part of another person* for the purpose of sexual arousal,
gratification, or abuse.

(c)

If a person* other than the client alleges a violation of this Rule, no Notice of
Disciplinary Charges may be filed by the State Bar against a lawyer under this
Rule until the State Bar has attempted to obtain the client’s statement regarding,
and has considered, whether the client would be unduly burdened by further
investigation or a charge.

Comment
[1]
Although this Rule does not apply to a consensual sexual relationship that exists
when a lawyer-client relationship commences, the lawyer nevertheless must comply
with all other applicable rules. See, e.g., Rules 1.1 (Competence), 1.7, (Conflicts of
Interest: Current Conflicts) and [2.1 (Independent Judgment)]1.
[2]
When the client is an organization, this Rule applies to a lawyer for the
organization (whether inside counsel or outside counsel) who has sexual relations with
a constituent of the organization who supervises, directs or regularly consults with that
lawyer concerning the organization’s legal matters. See Rule 1.13.
[3]
Business and Professions Code § 6106.9, including the requirement that the
complaint be verified, applies to charges under subdivision (a) of that section. This Rule
and the statute impose different obligations.

1

The Rules Revision Commission has not made a recommendation to adopt or reject a
counterpart to ABA Model Rule 2.1. This bracketed reference is a placeholder pending a
recommendation from the Commission. Consideration of Model Rule 2.1 is anticipated for the
Commission’s August 26, 2016 meeting.

RRC2 - 1.8.10 [3-120] - Rule - XDFT1 (10-26-16) cf [PCD] DFT3 (02-19-16).docx

1

 Rule 1.8.10 [3-120] Sexual Relations With Current Client
(Redline Comparison of the Proposed Rule to Current California Rule)
(a)

A lawyer shall not engage in sexual relations with a current client who is not the
lawyer’s spouse or registered domestic partner, unless a consensual sexual
relationshipexisted between them when the lawyer-client relationship
commenced.

(Ab)

For purposes of this ruleRule, “sexual relations” means sexual intercourse or the
touching of an intimate part of another person* for the purpose of sexual arousal,
gratification, or abuse.

(B)

A member shall not:
(1)

Require or demand sexual relations with a client incident to or as a
condition of any professional representation; or(2)
Employ
coercion,
intimidation, or undue influence in entering into sexual relations with a
client; or

(3)

Continue representation of a client with whom the member has sexual
relations if such sexual relations cause the member to perform legal
services incompetently in violation of rule 3-110.

(C)

Paragraph (B) shall not apply to sexual relations between members and their
spouses or to ongoing consensual sexual relationships which predate the
initiation of the lawyer-client relationship.

(D)

Where a lawyer in a firm has sexual relations with a client but does not
participate in the representation of that client, the lawyers in the firm shall not be
subject to discipline under this rule solely because of the occurrence of such
sexual relations.

(c)

If a person* other than the client alleges a violation of this Rule, no Notice of
Disciplinary Charges may be filed by the State Bar against a lawyer under this
Rule until the State Bar has attempted to obtain the client’s statement regarding,
and has considered, whether the client would be unduly burdened by further
investigation or a charge.

DiscussionComment
[1]
Although this Rule does not apply to a consensual sexual relationship that exists
when a lawyer-client relationship commences, the lawyer nevertheless must comply
with all other applicable rules. See, e.g., Rules 1.1, 1.7, and 2.1.
[2]
When the client is an organization, this Rule applies to a lawyer for the
organization (whether inside counsel or outside counsel) who has sexual relations with

1

 a constituent of the organization who supervises, directs or regularly consults with that
lawyer concerning the organization’s legal matters. See Rule 1.13.
[3]
Business and Professions Code § 6106.9, including the requirement that the
complaint be verified, applies to charges under subdivision (a) of that section. This Rule
and the statute impose different obligations.
Rule 3-120 is intended to prohibit sexual exploitation by a lawyer in the course of a
professional representation. Often, based upon the nature of the underlying
representation, a client exhibits great emotional vulnerability and dependence upon
the advice and guidance of counsel. Attorneys owe the utmost duty of good faith and
fidelity to clients. (See, e.g., Greenbaum v. State Bar (1976) 15 Cal.3d 893, 903 [126
Cal.Rptr. 785]; Alkow v. State Bar (1971) 3 Cal.3d 924, 935 [92 Cal.Rptr. 278]; Cutler v.
State Bar (1969) 71 Cal.2d 241, 251 [78 Cal.Rptr 172]; Clancy v. State Bar (1969) 71
Cal.2d 140, 146 [77 Cal.Rptr. 657].) The relationship between an attorney and client is a
fiduciary relationship of the very highest character and all dealings between an attorney
and client that are beneficial to the attorney will be closely scrutinized with the utmost
strictness for unfairness. (See, e.g., Giovanazzi v. State Bar (1980) 28 Cal.3d 465, 472
[169 Cal Rptr. 581]; Benson v. State Bar (1975) 13 Cal.3d 581, 586 [119 Cal.Rptr. 297];
Lee v. State Bar (1970) 2 Cal.3d 927, 939 [88 Cal.Rptr. 361]; Clancy v. State Bar (1969)
71 Cal.2d 140, 146 [77 Cal.Rptr. 657].) Where attorneys exercise undue influence over
clients or take unfair advantage of clients, discipline is appropriate. (See, e.g., Magee v.
State Bar (1962) 58 Cal.2d 423 [24 Cal.Rptr. 839]; Lantz v. State Bar (1931) 212 Cal.
213 [298 P. 497].) In all client matters, a member is advised to keep clients’ interests
paramount in the course of the member’s representation.
For purposes of this rule, if the client is an organization, any individual overseeing the
representation shall be deemed to be the client. (See rule 3-600.)
Although paragraph (C) excludes representation of certain clients from the scope of rule
3-120, such exclusion is not intended to preclude the applicability of other Rules of
Professional Conduct, including rule 3-110.

2

 Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments

Ham (L), Clinch, Clopton, Eaton

No.
X-2016-2

1

Commenter/Signatory
Johnson, William
(7-1-16)

A = AGREE with proposed Rule

Comment
on Behalf
of Group?

A/D/M/
NI1

N

D

D = DISAGREE with proposed Rule

Rule
Section or
Cmt.

Comment

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

This proposed rule change is
terrible and may violate
constitutional rights to privacy,
sexual relations, free association
and marriage. If a client and a
lawyer fall in love, they can move
in together, they can get married
but they can’t have sexual
relations? This rule prohibits
sexual relations between
consenting adults when there is
no apparent or actual abuse. This
rule should be revised or
withdrawn to avoid impinging on
individual liberties and
constitutionally protected rights.

M = AGREE ONLY IF MODIFIED

RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc 1

TOTAL = 17

The Commission considered
overbreadth as well as other
constitutional issues (such as
freedom of association,
privacy, and equal protection
of the rights of the married and
unmarried), but concluded a
blanket prohibition was
appropriate to protect the
public. Eighteen jurisdictions
have adopted Model Rule
1.8(j) verbatim. Another 13
have adopted a rule that is
similar to MR 1.8(j), i.e., the
rules in those states include an
absolute ban but also includes
additional language, e.g., a
definition of "sexual relations."
Four jurisdictions have
language in the comments to
another rule (e.g., Rule 1.7)
that is similar to the comments
to MR 1.8(j). Four jurisdictions
have adopted a rule similar to
the Cal. Rule, requiring that
the lawyer have obtained sex
through coercion, etc. or as a
quid pro quo. The Commission
is not aware of any published
Federal or State Court opinion
which has ruled on these
constitutional issues in the
context of this rule.

NI = NOT INDICATED

As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

X-2016-3

Commenter/Signatory

Greenlee, Bruce
(7-1-16)

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

N

A/D/M/
NI1

Rule
Section or
Cmt.

D

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

I am not a fan of either the
current rule or the proposed rule.
The proposed rule of virtually
total prohibition is overbroad.

However, the Commission
changed the reference in the
rule from “client” to “current
client” and added an exception
for spouses and registered
domestic partners.
(See response to the comment
from William Johnson, X-20162, above.)

The key question to be asked is
not whether [sexual relations] will
interfere with an attorney’s ability
to perform services competently.
The key question is whether the
client comes to the attorney in a
vulnerable position, from which a
sexual relationship with the
attorney will exploit that
vulnerability. I recognize there
are drafting challenges in defining
the areas in which sex should be
off limits without global
prohibition. But to avoid
unwarranted intrusion into both
parties’ right to privacy, the effort
should made.

X-2016-7

Wilson, Ken
(7-4-16)

N

D

RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc 2

It is not clear that the definition of
“sexual relations” would prohibit
oral sex as “touching” connotes
only use of hands to most people.
The proposed rules goes beyond (See response to the comment
the professional relationship
from William Johnson, X-2016which ought to be the limits of the 2, above.)
As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

Commenter/Signatory

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

X-2016-19a Anderson, Mark
(8-1-16)

N

A

X-2016-30

Grossman, Nicholas
(8-3-16)

N

D

X-2016-34

Bryant, Barbara
(8-9-16)

N

A

Rule
Section or
Cmt.

RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc 3

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

Bar Association and invades the
private relationship of the
individuals. The current rule
adequately deals with this
situation.
We need a bright-line rule here. It
is unprofessional to begin an
intimate/romantic/sexual
relationship with a client while still
in the professional relationship.
Trying to carve out exceptions
only gives rise to endless
arguments about them. We
should join the vast majority of
other states in simply barring
these relationships.
The proposed rule change is
unnecessary. The current rule
already protects the public from
attorneys looking to sexually take
advantage of clients. The
proposed rule, preventing any
sexual relations between
attorneys and clients, is just plain
ridiculous. Why is it anyone’s
business who an attorney sleeps
with? There is nothing wrong if an
attorney wants to date a client,
provided legal work is not done in
exchange for sexual services,
which the current rule already
covers.
I strongly support this revision. I
have handled, studied,
researched, mediated and/or
taught hundreds of cases

The Commission agrees. The
proposed rule adopts a bright
line test that is based on the
corresponding Model Rule
1.8(j), which has been adopted
in a majority of jurisdictions.
(See above response to the
comment from William
Johnson.)

(See response to the comment
from William Johnson, X-20162, above.)

The Commission thanks the
commenter for her support.
With respect to the
commenter’s suggestion re
As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

Commenter/Signatory

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

Rule
Section or
Cmt.

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

involving sexual harassment and
the varying factual settings and
techniques in/by which the sexual
harassment was carried out.
Most of the cases/situations
involved people in positions of
power harassing people who
were dependent on them for
some important benefit such as
salary, a dwelling, a necessary
service, or a favorable outcome
to a legal right. Too many of
those offenders were attorneys
using their position of authority
and safety to pressure the client
for sex. Too many subterfuges
and implicit threats of desertion
led to the sexual conduct.

discriminatory and harassing
conduct, please refer to
proposed Rule 8.4.1.

It is absolutely unacceptable for
this conduct to occur. There
needs to be a strict bright line
that no sexual conduct is
acceptable, that the responsibility
for the conduct rests 100% on the
attorney to prevent it from
happening.
I request that the proposed rule
be amended further to clearly
prohibit “verbal conduct of a
sexual nature and/or proposals
for sexual conduct.” It is often the
case that a sexual harasser will
start with blatant behavior to test
the waters. This by itself puts
RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc 4

As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

X-2016-39

Commenter/Signatory

Thomas, Kevin
(8-14-16)

X-2016-43a Committee on Professional
Responsibility and
Conduct (COPRAC)
(Baldwin)
(8-12-16)

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

N

A

Y

D

Rule
Section or
Cmt.

RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc 5

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

undue pressure and implicit
threats on the client to go along
or stay quiet in the face of sexual
talk, or to agree to sexual
relations once the representation
has concluded.
The status quo is awful.
Disallowing sex with a client is a
cost-free way to protect our most
vulnerable citizens.
1. COPRAC does not support
adoption of the proposed rule
because it is inconsistent with
B&P Code § 6106.9. The statute
expressly sets a different
standard than the proposed rule
for the imposition of discipline for
a lawyer who engages in a
sexual relationship with a client
than the one set by the proposed
rule. COPRAC believes this
inconsistency creates a potential
trap for a lawyer. COPRAC
believes merely flagging the
inconsistency in the Comment to
the rule does not solve the
problem because it relies on the
lawyer looking at the rules rather
than relying on the B&P Code.

No response required.

1. The Supreme Court can
establish rules of conduct
independent from those
established in the Business &
Professions Code. See, e.g.,
In re Lavine, 2 Cal. 2d 324,
328, reh'g denied and opinion
modified, 2 Cal. 2d 324 (1935).
The proposed rule is not in
conflict with B&P Code Section
6106.9. While Section 6106.9
prohibits sexual relations only
under certain specified
circumstances, the proposed
rule bans sexual relations
entirely, and is more strict than
Section 6106.9. Further,
subdivision (e) of that section
applies only to a complaint
made pursuant to subdivision
(a), not to a complaint made
pursuant to Rule 1.8.10.
Therefore, the rules are not
inconsistent.

As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

X-2016-44

Commenter/Signatory

Copi, Margaret
(8-15-16)

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

N

A/D/M/
NI1

Rule
Section or
Cmt.

A

RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc 6

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

2. In the event the Commission
adopts the rule as proposed, at a
minimum, COPRAC urges the
Commission to revise Comment
[3] to more clearly alert attorneys
to the different standards under
the rule and section 6106.9.

2. The Commission declines
to make the suggested
change. It believes that the
comment adequately and
succinctly alerts lawyers to the
differences between rule and
statute (“This Rule and statute
impose different obligations.”)

3. There was no consensus
among the Committee members
on the separate question of
whether they would support
adoption of the near blanket
prohibition on sexual relations
with clients expressed in
proposed rule 1.8.10.

3. No response required.

An attorney and his or her client
have unequal power in their
relationship and the attorney has
a fiduciary duty to take care of
the interests of the client. It is not
a mutual relationship in which the
interests of both are equal. All
such sexual activity is suspect as
potentially coercive and must be
avoided to preserve the integrity
of the professional relationship.
Both Sexual Harassment as a
separate matter and consensual
sexual relations must be avoided
for the protection of the client.
This has been standard in
medical practice for many years
and I find it difficult to understand

No response required.

As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

Commenter/Signatory

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

X-2016-45

Peoples, Bernice
(8-16-16)

N

A

X-2016-37

Wade, Margena
(8-10-16)

N

A

Rule
Section or
Cmt.

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

that it is not also the standard in
the practice of law. Dual-role
relationships in any case are
fraught with difficulties, but in this
particular case must be forbidden
absolutely for the ethical practice
of law.
This rule should have been
written into the founding rules of
conduct between Attorney and
Client. A sexual relationship
would compromise too many
cases and cause the court to get
bogged down in nonsense
instead of real criminal cases.
(emphasis in caps in original)
No lawyer should have sex or
personal relationship with a
client, unless it’s well established
before or well after the case.
There’s too much gray area to
allow this.

No response required.

[Note: This comment was
originally submitted for
proposed Rule 1.0 but was
subsequently moved to the
1.8.10 table because of the
substance of the comment.]
No response required.

X-2016-46

Johnson, Maxine
(8-16-16)

No

M

RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc 7

I have a lawyer as a neighbor
and he and his wife have gone
throughout the neighborhood
suing other neighbors. A lawyer
should never have the ability to
sue on behalf of a person he or
she is either married to or having
sex with prior to the lawsuit and
benefitting from using the spouse
or girlfriends name.

[Note: This comment was
originally submitted for
proposed Rule 1.0 but was
subsequently moved to the
1.8.10 table because of the
substance of the comment.]
The comment does not raise
any issues regarding proposed
Rule 1.8.10. The comment
appears to raise a concern
As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

Commenter/Signatory

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

X-2016-58

Thompson, Irene
(9-1-16)

N

A

X-2016-63

Edwards, Lisa
(9-15-16)

N

M

Rule
Section or
Cmt.

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

It's shocking that this rule does
not already exist. Attorneys
having sex with clients? Are you
kidding? What could possibly go
wrong?
I do not think clients and
attorneys should be completely
barred from dating or sexual
relations. I had some incredible
attorneys along the way both civil
and family law. If down the road I
wanted to date them who are you
to tell me no. I believe at least 1
year preferably two and drop
dead minimum 6 months waiting
period from the time the case is
completely done or another
attorney hired should be in place.

about a lawyer engaging in
vexatious litigation practices.
Please see proposed Rule 3.1
[3-200].
No response required.

The Commission changed the
reference in the rule from
“client” to “current client.” The
proposed rule does not
regulate sexual relations after
the termination of the attorneyclient relationship.

Now the married attorney who
kissed me while working on my
case or the one helping me
defend myself from a stalker and
telling me he could understand
my stalker because he "wouldn't
give me up for all the tea in
China" need to be held
accountable or retrained. I
handled it another way but that
behavior is abhorrent and clients
should know what they can do for
assistance.
RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc 8

As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

Commenter/Signatory

X-2016-66h San Diego County Bar
Association (Riley)
(9-15-16)

X-2016-76f

Los Angeles County Bar
Association Professional
Responsibility and Ethics

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

Y

A

Y

Rule
Section or
Cmt.

M

RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc 9

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

1. We commend and support the
Commission’s adoption of a rule
that prohibits a lawyer having a
sexual relationship with a client,
unless that relationship preexisted the attorney-client
relationship. Current Rule 3-120,
with its “if such sexual relations
cause the member to perform
legal services incompetently in
violation of rule 3-110,” could be
simply an excuse for the
rationalization of conduct that
should be prohibited unless the
individuals had a personal
relationship before the lawyer
was engaged.

1. No response required.

2. We observe, however, that
neither the proposed rule nor any
Comment addresses how long
the prohibition lasts— until the
conclusion of the matter for which
the attorney is engaged; for some
period after the attorney-client
relationship ends; whether formal
indicia of termination of the
attorney-client relationship are
required or preferred? We believe
some guidance would be helpful,
especially given the often volatile
mix of professional and personal
relationships.
1. PREC opposes the adoption
of Proposed Rule 1.8.10 in its
current form. While the proposed

2. The Commission
understands the commenter’s
request for further guidance on
the duration of the rule’s effect
in prohibiting sexual relations
between lawyer and client.
However, the Commission’s
Charter directs the
Commission to minimize the
number of comments. The
guidance issues raised by the
commenter are better left for
ethics opinions.

1. See response to the
comment from William
Johnson, X-2016-2, above.
As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

Commenter/Signatory

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

Rule
Section or
Cmt.

Committee (PREC)
(9-23-16)

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

rule is consistent with the ABA
Model Rule, it is much more
restrictive than our current rule on
sexual relations (Rule 3-120),
and prohibits ALL sexual
relations with clients, except for
those that existed at the time the
attorney-client relationship
commenced (contrasted with our
current rule, which essentially
prohibits coercion, intimation and
undue influence in entering into
sexual relations with a client).
While such a bright line test might
make sense in certain practice
areas (e.g., criminal law and
family law cases), it is patronizing
to clients and unreasonably
prohibitive where the client is
sophisticated and not vulnerable.
2. Proposed Rule 1.8.10 is also
inconsistent with the State Bar
Act: Section 6106.9 of the
California Business &
Professions Code tracks with
current Rule 3-120, and only
provides (in subsection (a)) for
the imposition of discipline where
an attorney does any of the
following (emphasis added):

2. See response to COPRAC,
X-2016-43a, above.

“(1) Expressly or impliedly
condition the performance of
legal services for a current or
RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc10

As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

Commenter/Signatory

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

Rule
Section or
Cmt.

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

prospective client upon the
client’s willingness to engage in
sexual relations with the attorney.
(2) Employ coercion, intimidation,
or undue influence in entering
into sexual relations with a client.
(3) Continue representation of a
client with whom the attorney has
sexual relations if the sexual
relations cause the attorney to
perform legal services
incompetently in violation of Rule
3-110 of the Rules of
Professional Conduct
of the State Bar of California, or if
the sexual relations would, or
would be likely to, damage or
prejudice the client’s case.
3. Further, as provided in
Comment [2], the extension of
the proposed rule in this form to
all corporate clients – and
especially in-house lawyers – is
particularly unreasonable and
unnecessary. These are not the
situations where one would
typically find the type of
vulnerable clients this rule is
intended to protect. Also,
because the only exception to the
application of the proposed rule is
with respect to a consensual
sexual relationship that exists
RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc11

3. The Commission disagrees
that a sexual relationship with
a client should be equated with
or treated the same as a
business relationship with a
client.

As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

Commenter/Signatory

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

Rule
Section or
Cmt.

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

between the lawyer and the client
“when the lawyer-client
relationship commenced,” the
proposed rule would prohibit
sexual relations between a client
and a lawyer if the client and
lawyer had been in a previous
relationship but were no longer in
the relationship at the time the
representation commenced.
Thus, discipline could be
imposed under this strict bright
line test if the client and lawyer
reengage in sexual relations
following a situation where the
client seeks out the lawyer for
legal advice.
The rules regulating business
relationships with a client are
intended to ensure that the
clients are treated fairly and the
lawyers’ judgment is not
impaired. Under our current rule
3-300 (as well as ABA Model
Rule 1.8), there is no strict
prohibition on a lawyer entering
into a business transaction with a
client. These rules permit
business relations so long as the
relationship is fair and
consensual (among other
requirements). In our view, the
rule relating to sexual relations
should be similar: provided the
relationship is consensual, and
RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc12

As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

Commenter/Signatory

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

Rule
Section or
Cmt.

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

not based on coercion, undue
influence or intimidation, and
provided the lawyer is otherwise
in compliance with the rules (e.g.,
with respect to competence and
conflicts of interest), there should
be no total prohibition on sexual
relations.
PREC believes that the rule
should prohibit sexual relations
based on coercion, undue
influence or intimidation, not
merely on just whether an
attorney engages in sexual
relations with a client with whom
he or she was not already
involved sexually at the time the
representation commenced.
X-2016-93c

Los Angeles County Public
Defender (Brown)
(9-23-16)

D

Current Rule 3-120 is nuanced
and balanced, with an
understanding of the nature of
human relations. The proposed
rule is a blanket prohibition on all
sexual relations unless the
consensual sexual relationship
existed at the time the lawyerclient relationship commenced.
The proposed rule may be easier
to enforce, but it is unrealistic in
the real world.

See response to the comment
from William Johnson, X-20162, above.

The current rule correctly
recognizes that sex does occur,
and the rule prohibits sex that is
RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc13

As of November 7, 2016

 Ham (L), Clinch, Clopton, Eaton

No.

Commenter/Signatory

Proposed Rule 1.8.10 [3-120] Sexual Relations with Client
Synopsis of Public Comments
Comment
on Behalf
of Group?

A/D/M/
NI1

Rule
Section or
Cmt.

Comment

TOTAL = 17

A=
D=
M=
NI =

8
6
3
0

RRC Response
A = 12
NI = 0

non-consensual, is coerced, is a
condition of representation, or
results in incompetent
representation. The
Commission’s real complaint is
not that lawyers and clients are
engaging in sexual relations, it is
that the current Rule is too
difficult to enforce without proof of
harm or misconduct. The only
evidence the Commission can
muster that the current Rule is
ineffective in the executive
summary is anecdotal. We
oppose this revision.
X-2016104v

X-2016120k

Office of Chief Trial
Counsel (OCTC)
(Dresser)
(9-27-16)

Y

LGBT Bar Association of
Los Angeles (King)
(9-27-16)

Y

A

Cmt. [3]

A

RRC2 - [1.8.10][3-120] - Public Comment Synopsis Table - DFT6 (11-02-16)JH-KEM-DE-NC-AT.doc14

1. Supports adoption of
proposed Rule 1.8.10.

1. No response required.

2. Second sentence of comment
[3] should be clearer as to
meaning.

2. The Commission declines
to make the suggested
change. It believes that the
comment adequately and
succinctly alerts lawyers to the
differences between rule and
statute (“This Rule and statute
impose different obligations.”)

We support the proposed
revisions to this rule.

No response required.

As of November 7, 2016