State Bar of California weighs attorney-client sex ban

Santa Rosa attorney Michael Fiumara was up late at his downtown office poring over legal papers, when a woman’s laughter broke his concentration.

He stood up from his desk in the downtown building shared by many other lawyers and poked a head into the hallway.

As he did, a giggly, stocking-clad woman, wine glass and heels in hand, stepped from the suite of the neighboring divorce attorney.

She was followed close behind by the attorney himself, who buttoned his pants and told him, “you didn’t see this,” Fiumara said.

“I thought, ‘Wow. What the hell is going on here?’ ” said Fiumara, recalling the scene from early in his career. “I later found out she was his client.”

Sex between lawyers and the people they represent has long been a source of speculation and titillation. It’s also allowed under the State Bar of California’s rules of professional conduct as long as it’s not used as payment, and doesn’t involve coercion or prevent competent legal advice.

But that could change under a proposed ethics code overhaul that would expose lawyers to discipline or disbarment.

Among 68 suggested tweaks is an all-out ban on sex with clients. It’s seen as a way to promote confidence in the legal system while protecting the public from relationships some say are inherently dangerous.

The revision, the first since 1987, is a response to goals set by the California Supreme Court. The state bar is taking public comment through early January, and the court will make a final decision later next year.

Other changes would allow the bar to discipline attorneys for discrimination and harassment without a finding of wrongdoing. Also, prosecutors could receive discipline for failing to turn over evidence helpful to the defense.

Supporters say the current rules aren’t working. Over an 18-year period ending in 2010, the bar investigated 205 complaints of sexual misconduct and imposed discipline just once.

“Lawyers are in a position to subtly - or not so subtly - exert undue influence over clients,” said Bruce Budner, who teaches ethics at UC Berkeley School of Law. “It’s very hard to establish when this has taken place. So it’s better to have a bright line that the bar can enforce and prosecute.”

Some oppose the sex ban, saying it is an invasion of privacy. Another Santa Rosa attorney, Ben Adams, said it’s possible relationships can blossom that “don’t involve some lawyer pinning someone down against their will.”

“I think the state bar has enough to do without worrying about relationships between consenting adults,” Adams said. “Why not worry about people stealing money or being incompetent? Those are greater threats.”

Sex bans are currently in place in 31 other states. Some follow the American Bar Association model, which prohibits any sex between lawyers and clients unless it’s between people with pre-existing relationships. California also would include that exception.

Meanwhile, many lawyers said they were surprised to learn sex with clients wasn’t already forbidden. Others said it happens all the time between unscrupulous practitioners and vulnerable customers.

Fiumara, who last year made a racy YouTube video on the subject, said it’s a conflict that could interfere with judgment and prevent objective representation. The video of Fiumara talking to a sex doll was lampooned on late-night TV and featured in The Press Democrat.

“That’s why I made that spoof. As soon as someone hints at sex, you have to close it down,” Fiumara said. “Get your priorities straight. Put your sex drive away.”