Executive Director’s Message by Karen A. Gould Sex and the Practice of Law on Legal Ethics has proposed amend-ments to Rule of Professional Conduct 1.8 (http://bit.ly/rule1_8), which con-cerns conflicts of interest, to add a new paragraph to establish a bright-line rule prohibiting sexual relations with a current client unless the relationship predated the lawyer-client relation-ship. The proposed amendments also add three new comments, [17]-[19], explaining the purposes and scope of the prohibition, as well as the fact that it is not imputed to other lawyers in a firm. The purpose of engaging in this discussion is not to discuss whether it’s ok to have sex with a client (clearly, it’s not, under most circumstances), but to discuss how you can be relevant to the discussion. The text of the proposed amend-ments is underlined here: RULE 1.8 Conflict of Interest: Prohibited Transactions … (k) A lawyer shall not have sexual rela-tions with a client unless a consensual sexual relationship existed between them when the client-lawyer relation-ship commenced. … Client-Lawyer Sexual Relationships [17] The relationship between law-yer 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 disadvan-tage. In addition, such a relationship The VSB Standing Committee presents a significant danger that, because of the lawyer’s emotional involvement, the lawyer will be unable to represent the client without impair-ment 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 consen-sual and regardless of the absence of prejudice to the client. Like a conflict arising under paragraph (i) of this Rule, this conflict is personal to the lawyer and is not imputed to other lawyers in the firm with which the lawyer is associated. [18] Sexual relationships that predate the client-lawyer relationship are not prohibited. Issues relating to the ex-ploitation 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 representa-tion 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 organi-zation, paragraph (k) of this Rule prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relation-ship with a constituent of the organiza-tion who supervises, directs or regular-ly consults with that lawyer concerning the organization’s legal matters. The issue of sexual relations with a client is currently addressed in Legal Ethics Opinion 1853 (http://bit.ly/ LEO1853), which follows much of the same reasoning as the proposed comments to Rule 1.8 and concludes that sexual relations with a client will be prohibited in many cases. The proposed amendments establish a bright-line rule to that effect, based on the same concerns about conflict of interest and overreaching. The ethical rules have never permitted lawyers to have to sex with one’s client for the reasons set forth in Legal Ethics Opinion 1853, adopted in 2009. Long before LEO 1853, the VSB Discipline Department prosecuted individuals who had sex with clients under certain circumstances. This proposed amendment would bring the rule in line with the ABA Model Rules and the rules of at least 43 other jurisdictions that address this issue through a rule and/or comment rather than just an advisory ethics opinion. Violation of an ethics rule may result in the prosecution and conviction of a lawyer for the charged offense. At the beginning of each month, the VSB Communications Department sends out an email containing news Ethics continued on page 36 10 VIRGINIA LAWYER | February 2020 | Vol. 68 www.vsb.org