Lawyer-Client Sex May Be Banned by State Bar : Ethics: If the rule is adopted, it would be the first of its kind in the nation. Disbarment could be the penalty.

SAN FRANCISCO —  Confronted by a determined lawmaker, California’s legal profession is on the verge of becoming the first in the nation to adopt a strict ethical rule barring attorneys from having sex with their clients.

The issue has provoked a sharp debate over whether--as television’s “L.A. Law” and other fictional fare might suggest--such regulation is really necessary to protect the public from the romantic aspirations of the state’s 128,000 lawyers.

The board of governors of the State Bar is set to consider the question at a meeting Saturday in Los Angeles. Any rule adopted then would be sent for final approval by the state Supreme Court, which has final authority over regulating the profession. Violators could be disbarred or suspended from practicing law.

The board had been poised last month to pass a rule that would have restricted--but not banned--sexual relations between attorneys and clients. But an objection was raised by Assemblywoman Lucille Roybal-Allard (D-Los Angeles), author of a 1989 law that required the Bar to adopt a rule governing lawyer-client sex. Her opposition sent the board back to the drawing board.

Roybal-Allard wants a rule that she believes would better protect vulnerable, easily influenced clients: a prohibition against sex, with only the highly limited exceptions of when the client is a spouse or the sexual relationship predated the lawyer-client relationship.

“It’s important that the state of California take a leadership role and send a clear message to the rest of the country that the interests of the client are utmost and that lawyers need to take that into consideration over their own personal desires,” the legislator said in an interview last week.

State Bar President Charles S. Vogel, while taking no formal position on the issue, raises questions about the need for a new regulation for the legal profession.

“I have not had one single lawyer call me or write me about this issue--and if this were really an important problem, I think we’d have had a lot of communications,” said Vogel. “Why not rules for newspaper reporters and others as well? There is such a thing as too many rules.”

California’s impending attempt to ban lawyer-client sex appears unique in the country, according to Joanne Pitulla, research attorney for the Center for Professional Responsibility of the American Bar Assn.

The ABA’s own model code of ethics prohibits actions that could impair a lawyer’s fitness to practice or other forms of professional misconduct but it does not specifically address sex between attorneys and their clients, Pitulla noted.

Roybal-Allard says she was inspired to draft the bill by the widely publicized sexual assault case of divorce lawyer Marvin M. Mitchelson, who was accused of rape by two women clients. The attorney denied the allegations and authorities declined to prosecute.

Inquiring about the Mitchelson case, the assemblywoman was told by attorneys she knew that the problem of lawyer-client sex was “not an isolated one,” she recalls. She did some checking and found that although State Bar disciplinary rules ban a wide range of unethical conduct, none specifically prohibit sex with clients.

Her resolve to force the Bar to approve a strict rule was strengthened when a state Court of Appeal recently ordered a new trial for a convicted murderer because of his lawyer’s secret romance with the man’s wife. That conflict of interest, the court said, required a reversal of the defendant’s conviction.

Roybal-Allard and her allies in the legal community say a specific ban on lawyer-client sex is needed to protect clients against manipulation and intimidation--particularly those clients involved in emotionally draining divorce, child custody or probate cases.

Sexual relations can easily upset the trust and reliance between lawyer and client and undermine the ability of the attorney to provide objective and emotionally detached advice, proponents of the ban say.

Supporters see important parallels between the legal profession and the medical profession, which is governed by strict statutory and ethical prohibitions against sex with patients. In California it is illegal for psychiatrists, psychologists, clinical social workers and licensed family counselors to have sexual relations with their patients and clients. Medical organizations consider sex with patients unethical for any physician.

Leslie Steven Rothenberg, a Los Angeles attorney and specialist in medical ethics, believes that in some respects a client seeking legal counsel on some emotionally charged matter like divorce is like a patient seeking treatment from a psychotherapist. Both client and patient are emotionally vulnerable--and could be exploited by those they have turned to for help, he said.

“The notion that a sexual relationship should be permitted in any way is highly inappropriate,” said Rothenberg. “From a professional ethics point of view, a (ban) should be part of the education of new and not-so-new lawyers.”

Doctor-patient sex has proved a “significant problem” within the medical profession, according to Janie Cordray, spokeswoman for the state Board of Medical Quality Assurance. Patients, she notes, are often reluctant to report errant conduct by physicians.

“A lot of victims feel really stupid and think they’re the only ones this has happened to and don’t come forward,” said Cordray. “Sometimes they only come forward when they see something in the newspaper or hear about it happening to someone else.”

Opponents, however, question the need for a lawyer-client sex ban in view of existing ethical standards requiring attorneys to perform competently in providing legal services and prohibiting them from exercising “undue influence” or taking “unfair advantage” of a client by any means.

There is concern that adopting a specific rule barring sex would invite unfounded complaints by disgruntled clients, forcing lawyers to defend themselves in Bar disciplinary proceedings and risk tarnishing their reputations in the process. It would be difficult to obtain conclusive evidence upholding or refuting such charges, and in the end it would be the client’s word against the lawyer, critics of the proposal say.

Lawyers acknowledge the legitimate role of the medical community’s ban on sex--but they see a sharp difference between the two professions. A patient who sees a psychotherapist is, almost by definition likely to be emotionally upset and open to exploitation. The same degree of vulnerability is not nearly so frequent among a lawyer’s clients, they say.

A group of special committees of the Los Angeles County Bar Assn. was among several groups urging the State Bar against adopting a flat ban on lawyer-client sex. Among other things, the committees warned, the ban could unnecessarily infringe on both the lawyer and client’s rights to freedom of privacy and association.

The committees suggested adoption of a narrower rule, barring attorneys from requiring or demanding sex from clients or conducting a sexual relationship that would impair the lawyer from performing legal services competently.

“To our knowledge, (lawyer-client sex) is not a widespread problem,” John Carson, a Los Angeles attorney and chair of one of the committees, said in an interview. “There certainly are instances where we think sexual relationships should not be occurring, but there are other instances where that would not be a problem.

“We want to protect the public,” Carson said. “But we want a rule that’s needed and not a rule so broad it goes beyond need and becomes unconstitutional--or one that is enacted just from a public-relations standpoint.”