Rule 1.13. Prohibited Sexual Relations [new, renumbered]
(a) A lawyer shall not condition the representation of a client or prospective client, or the quality of such representation, on having any person engage in sexual relations with the lawyer.
(b) A lawyer shall not solicit or accept sexual relations as payment of fees.
(c) A lawyer shall not have sexual relations with a client that the lawyer is personally representing unless the lawyer and client are married to each other, or are engaged in an ongoing consensual sexual relationship that began before the representation.
That’s right: “new.” This is not currently the rule in Texas; the Supreme Court is proposing that it be adopted. I have mixed feelings about this.
On the one hand, this would be a new law, and I’m in favor of fewer laws rather than more.
On the other hand, why is this even an issue?
A lawyer can’t enter into a business transaction with a client without full disclosure and written informed consent (Tex. Discip. R. Prof. Cond. 1.08); who could possibly think it anything other than a monumentally bad idea for a lawyer to charge or accept a “couch fee”? To begin a sexual relationship with a client?
The mere fact that something is a bad idea, even a monumentally bad idea, doesn’t mean that it should be illegal. Life, especially that part of life that involves growing, is about making mistakes—even monumental mistakes—and then learning from the mistakes while trying to fix them. For most mistakes, even monumental mistakes that hurt other people, criminal liability is grossly disproportionate. (For example, the person who negligently causes an auto accident that happens to kill someone is still only negligent, and nobody gains from making him a felon.)
But we’re not talking about criminal liability here; we’re talking about disciplinary liability. The worst-case scenario is disbarment, not prison or death. So we can rationally set the bar lower on conduct that merits discipline than on conduct that merits prosecution.
Also, we’re not talking about the general public, but about an elite subgroup with a great deal of education and a government-issued franchise to wield terrific power. In other words, we’re talking about people who a) can do great harm with a small slip; and b) ought to be more careful. It’s grievable for a lawyer to neglect a legal matter (where “neglect” means inattentiveness involving a conscious disregard for the responsibilities owed to the client), but it’s not a crime.
We’ve got these clients, and it’s our job to protect each of them. They are in vulnerable positions, and we are in positions of authority. We are the insiders, trusted with power over life, or freedom, or financial security.
Our clients don’t know the arcane rules that govern us and protect them. I often have potential clients who are thinking about changing lawyers ask me, “can my old lawyer do something to harm my case?” The answer is “well, not ethically,” but as a practical matter, yes, a lawyer can do a good deal to harm a client or ex-client who hurts the lawyer’s feelings. And sometimes lawyers do.
Abuse of positions of trust; vulnerable victims: in criminal law, these would be “aggravating factors.” And while the proposal before us is not to criminalize couch fees, these aggravating factors are the sort of thing that should be considered when deciding whether to attach a sanction to a monumentally bad idea.
Speaking of abuse of trust and vulnerable victims, a teacher who has sex with a student at his school commits the second-degree felony of Improper Relationship Between Educator and Student—even if the student is above the age of consent and otherwise consents.
For that matter, a mental health services provider or a health care services provider or a clergyman who causes a patient or former patient to participate in sex by exploiting his emotional dependency on the professional commits the second-degree felony of Sexual Assault—again, even if the patient is of age and doesn’t say “no.”
Health care services providers include doctors, nurses, and chiropractors.
So a chiropractor can go to prison for exploiting his patient’s emotional dependency. But a lawyer exploiting a client’s emotional dependency can’t even get grieved? (You can tell the chiropractors aren’t the ones writing the laws.)
That health professionals can’t legally do it doesn’t mean that lawyers should be able to ethically do it—maybe it is ethical (and therefore should be legal) for all sorts of professionals to have sex with those who depend on them.
Does any lawyer really believe that it’s ethical for a lawyer to trade sex for services? If so, then that may be the strongest argument for the proposed change to the rules—this is one of those things that, if it doesn’t go without saying, probably ought to be said.