| California lawyers are in the unique position of being governed by our
Rules of Professional Conduct, suggested by the State Bar and approved by the Supreme
Court, and by the Business & Professions Code, enacted by legislators. The statutes
sometimes represent a knee-jerk reaction to a real or perceived problem, or a bully pulpit
for a politician looking for an issue. For instance, during deliberations over enacting a
ban on lawyer-client sexual relations, the legislature felt the profession was not
responding quickly enough. Ergo, B&P §§6106.8 and 6106.9 (enacted in 1989), which
mirror Rule of Professio-nal Conduct 3-120.
The official comment explains that "based on the nature of the under-lying
representation, a client exhi-bits great emotional vulnerability and dependence upon the
advice and guidance of counsel." This was designed to ad-dress the special
vulnerability displayed by clients in family law cases. During the slow process of
enactment, some lawyers suggested that it should only apply to family law practitioners.
Therefore, it is also known as the "Arnie Becker Rule."
The rule addresses situations in which sex is the quid pro quo of legal services.
Usually, there is a hint of coercion or duress involved in its application (very few cases
exist).
Many authorities maintained that a specific rule was unnecessary, and that the
prohibition on sexual exploi-tation was inherent in other rules or statutes. B&P
§6106 (moral turpitude) seems to address circumstances involving sex for legal services.
An umbrella statute, it maintains it is cause for disbarment for a lawyer to commit any
act involving moral turpitude, dishonesty or corruption.
Ten years before enactment of Rule 3-120, a remarkable case occurred. In Barbara A. v.
John G. (1983) 145 Cal.App. 3d 369, the initial proceeding involved John G.’s suit
for fees in a family law matter. In response, Barbara A. sued for breach of fiduciary
duty, breach of contract, legal malpractice and other torts, including bribery. During the
underlying family law proceedings, on two occasions, Barbara A. and John G. engaged in
sexual intercourse. Immediately prior to those incidents, Barbara A. requested that John
G. wear protection, since she could not possibly handle another child. John G. reassured
her that "he couldn’t possibly get anyone pregnant." Barbara A. assumed
that statement meant that John G. had a vasectomy, which was not true. Barbara A. suffered
a difficult pregnancy requiring surgery and the removal of a fallopian tube. Remember, it
was John G. who sued Barbara A. for fees. The court of appeal said there should be an
ethics rule regarding this conduct.
As an aside, B&P §6106.9 actually defines the conduct which constitutes
"sexual relations" as sexual intercourse or the touching of an intimate part of
another person for the purpose of sexual arousal, gratification or abuse. This type of
concrete definition would leave little for Washing-ton pundits to speculate about what
actually constitutes "sex."
 Diane
Karpman of Los Angeles represents attorneys at the State Bar and is an expert witness in
legal malpractice, conflicts of interest and partnership dissolutions.
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