THE COURTS
Title 204—JUDICIAL SYSTEM GENERAL PROVISIONS
PART V. PROFESSIONAL ETHICS AND CONDUCT
[204 PA. CODE CH. 81]
Proposed Amendments to the Pennsylvania Rules of Professional Conduct Relating to Conflict of Interest—Client Lawyer Sexual Relationships
[53 Pa.B. 5275]
[Saturday, August 26, 2023]Notice is hereby given that The Disciplinary Board of the Supreme Court of Pennsylvania (the ''Board'') is considering recommending to the Supreme Court of Pennsylvania an amendment to the Comment to Pennsylvania Rule of Professional Conduct (''RPC'') 1.8, as set forth in Annex A.
EXPLANATORY REPORT RPC 1.8(j) prohibits a lawyer from having sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced. The rationale behind this rule is that a sexual relationship that starts after the commencement of legal representation may adversely influence the lawyer's professional judgment and creates an impermissible personal conflict of interest. Comment (17) explains that a client-lawyer relationship is a fiduciary relationship at its heart, and is inherently unequal in that the lawyer holds the power. Thus, RPC 1.8(j) prohibits sexual relations between a lawyer and a client that start after commencement of the professional relationship due to the significant danger of harm to the client's interests.
Recently, Pennsylvania's disciplinary system has experienced an increase in ''sex with clients'' investigations where the matters involve sexual communications by way of ''sexting'' or similar communications, as opposed to actual physical relationships.
The Board is considering a proposal to amend comment (17) to RPC 1.8 to clarify and reinforce to the profession that lawyers have an ethical obligation to keep their relationships with clients professional, and that the current prohibition on ''sexual relations'' also includes sexual communications engaged in by a lawyer with a client after the commencement of representation and where no prior consensual relationship existed. The justification for the Rule's ban on client sexual relations applies with equal force to prohibit sexual communications between lawyer and client, as the same danger of harm to the client's interests exists.
Interested persons are invited to submit written comments, suggestions or objections by mail, email or facsimile to the Executive Office, The Disciplinary Board of the Supreme Court of Pennsylvania, 601 Commonwealth Avenue, Suite 5600, PO Box 62625, Harrisburg, PA 17106-2625, facsimile number (717-231-3381), email address Dboard.comments@pacourts.us on or before September 26, 2023.
By The Disciplinary Board of the
Supreme Court of PennsylvaniaJESSE G. HEREDA,
Executive Director
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.
* * * * * (j) A lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced.
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Comment: * * * * * 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, ''sexual relations'' includes, but is not limited to, sexual communications with a client.
(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. 23-1143. Filed for public inspection August 25, 2023, 9:00 a.m.]
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