Pennsylvania Proposes Ban on a Lawyer’s “Sexual Communications” with Clients

In 2002, the ABA adopted Model Rule 1.8(j), which bans “sexual relations” between attorneys and their clients unless the intimate relationship pre-dated the attorney-client relationship. This rule has been adopted in some form by many states, however, it is not without controversy. Many who oppose it argue that relationships between consenting adults fall outside of the bar’s regulatory purview. Nonetheless, at least 30 states have been persuaded to adopt some version of the rule, perhaps because the “unequal” relationship between attorney and client means that “a sexual relationship . . . can involve 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.” Comment 20 to Rule 1.8.

The matter of In re Disciplinary Proceedings Against Atta makes a strong case in support of Rule 1.8(j) and that demonstrates just the kind of situation anticipated in Comment 20. Atta, the lawyer for the divorcing wife, allegedly became romantically involved with his client and then hijacked the representation to pressure her to continue the relationship; he was subsequently disciplined for it by the Wisconsin Supreme Court. Similar power dynamics emerged in a Pennsylvania disciplinary matter, Office of Disciplinary Counsel v. Toussant. In that case, Toussant was allegedly romantically involved with her client and then retaliated against the client when the client attempted to break off their involvement. The Pennsylvania Supreme Court suspended Toussant from the practice of law for one year and noted: “This case presents a textbook example of why the Pennsylvania Supreme Court adopted Rule 1.8(j). While Respondent may have intended no harm to her client at the inception of the relationship, the harm that occurred was and should have been foreseeable.”

Pennsylvania’s Proposal

The proposed amendment in Pennsylvania would amend Comment 17 to Pennsylvania disciplinary Rule 1.8(j) by extending the definition of “sexual relations” to cover “sexual communications with a client.” While the comment itself does not use the term “sexting,” the Pennsylvania Disciplinary Board’s explanatory report refers to increased complaints that it has received of incidents of “sexting” by lawyers to their clients. As defined in the online Merriam Webster Dictionary, to “sext” is to send someone a sexually explicit message or image by cell phone. This definition seems narrow, however, because text messages and messages to Instagram, Snapchat, Facebook, and other social media messaging programs can also be sent from computers.

While the Pennsylvania board’s desire to address such conduct in the disciplinary rules may be warranted, the current version of the amendment does not provide adequate guardrails if “sexting” with clients is what they are trying to regulate, and the proposed rule change has been met with some concern. The Philadelphia Bar Association recommended that the board define the term “sexual communications” to both eliminate challenges for vagueness and limit the scope so that merely inappropriate or unprofessional communications do not trigger discipline under the revised rule. And it makes sense to clearly define the prohibited conduct to avoid any questions or argument about what is and is not a violation of the rules. Because popular forms of internet communication are constantly evolving, there is no reason not to explicitly describe “sexual communications” to not only set out the kinds of content that are forbidden, but to more explicitly include every possible form of communication, including but not limited to verbal, written, video communication, by letter, email, text, electronic messaging on any social media or internet platform, or by any other electronic means whatever. There is also opposition to the change among lawyers who simply oppose additional regulation of how consenting adults conduct their relationships.

Time will tell if the Pennsylvania Supreme Court adopts some form of the proposed amendment, but the principles behind it are universally sound for lawyers in any jurisdiction. When communicating with clients, attorneys must be mindful of their role as professional fiduciary and take care not to blur the lines between the professional and personal that could be misinterpreted by the client or damage the client’s trust in the attorney and thereby harm the representation. Regardless of any future amendment to the rule against sexual relations with clients, the wise lawyer will think carefully now about the possible interpretation and ramifications of both (1) using any personal or informal forms of communication, such as texting to a client’s personal cell phone or messaging them on their social media platforms; and (2) the professional appropriateness of the content of every communication to each client.