California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - SEPTEMBER 1998
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - September 1998
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News
Need info about bar members? Look on the net
Western State law school wins provisional approval for ABA accreditation
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You Need to Know
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From the President - A privilege gone awry
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Opinion
In defense of opinion
Thomas can think as he chooses
Time to drain the 'BOG'
Let's build a stronger forum
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Letters to the Editor
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Trials Digest
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Legal Tech - 10 reasons to ignore 2000 problem
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New Products & Services
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Law Practice - When mediating, let your imagination run loose
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MCLE Self-Study
The Internet and Global Implications
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - 'He said, she said' rule for sex
Attorney disbarred after investing client's assets
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Annual Meeting
Did you know these Monterey Peninsula facts?
Scenic, legal visions on the menu
Four vie to lead embattled State Bar
11 seek five seats on bar board
District 2: Three-way race in capital and environs
District 4: Unopposed in San Francisco, Albers is ready
District 7, Office 1: 3 seek southern seat...
District 7, Office 2: ...and also in Los Angeles...
District 3: Two-way race develops in South, East Bay region

DISCIPLINE

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'He said, she said' rule for sex
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By DIANE KARPMAN
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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.