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PA Bulletin, Doc. No. 24-1519

THE COURTS

Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

[204 PA. CODE CH. 81]

Amendment of Rule 1.8 of the Pennsylvania Rules of Professional Conduct; Disciplinary Rules Docket No. 251

[54 Pa.B. 6696]
[Saturday, October 26, 2024]

Order

Per Curiam

 And Now, this 9th day of October, 2024, upon the recommendation of the Disciplinary Board of the Supreme Court of Pennsylvania; the proposal having been published for comment in the Pennsylvania Bulletin, 53 Pa.B. 5275 (August 26, 2023):

 It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rule 1.8 of the Rules of Professional Conduct is amended in the attached form.

 This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective in 30 days.

 Additions to the rules are in bold and are underlined.

 Deletions from the rules are shown in bold and brackets.

Annex A

TITLE 204. JUDICIAL SYSTEM GENERAL PROVISIONS

PART V. PROFESSIONAL ETHICS AND CONDUCT

Subpart A. PROFESSIONAL RESPONSIBILITY

CHAPTER 81. RULES OF PROFESSIONAL CONDUCT

Subchapter A. RULES OF PROFESSIONAL CONDUCT

§ 81.4. Rules of Professional Conduct.

 The following are the Rules of Professional Conduct:

CLIENT-LAWYER RELATIONSHIP

Rule 1.8. Conflict of Interest: Current Clients: Specific Rules.

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 (j) A lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced. ''Sexual relations'' includes, but is not limited to, communications of a sexual nature.

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Comment:

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Client-Lawyer Sexual Relationships

 (17) The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role, in violation of the lawyer's basic ethical obligation not to use the trust of the client to the client's disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer's emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgment. Moreover, a blurred line between the professional and personal relationships may make it difficult to predict to what extent client confidences will be protected by the attorney-client evidentiary privilege, since client confidences are protected by privilege only when they are imparted in the context of the client-lawyer relationship. Because of the significant danger of harm to client interests and because the client's own emotional involvement renders it unlikely that the client could give adequate informed consent, this Rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client. For purposes of this Rule, ''communications of a sexual nature'' means requesting or transmitting any content, images, audio, video, or messages that contain sexually explicit material or that are intended to arouse or gratify the sexual desire of the sender or recipient. Communications that contain sexually explicit content but are related to the client's legal matter and are made in furtherance of the representation are not ''communications of a sexual nature'' for the purposes of this Rule.

 (18) Sexual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship. However, before proceeding with the representation in these circumstances, the lawyer should consider whether the lawyer's ability to represent the client will be materially limited by the relationship. See Rule 1.7(a)(2).

 (19) When the client is an organization, paragraph (j) of this Rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization's legal matters.

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[Pa.B. Doc. No. 24-1519. Filed for public inspection October 25, 2024, 9:00 a.m.]


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