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December 5, 2016

Is everything about sex? Obviously not. We have to take time out for food and sleep. But you wouldn’t know this from some of the reporting on the topic.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

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Is everything about sex? Obviously not. We have to take time out for food and sleep. But you wouldn’t know this from some of the reporting on the topic.

Recent example: an Associated Press story last week that contained this sentence: “A state bar commission has spent months crafting and amending 70 rules under goals set by the California Supreme Court.”

Pretty straightforward reporting, right?

Not right.

You have to get to the fifth paragraph before you learn there are 70 rules involved.

Here’s the lead sentence: “The nation's largest state bar association is overhauling ethics rules for attorneys for the first time in 30 years, and some lawyers are unhappy about a proposal that would open them up to discipline for having sex with clients.”

The other 69 rules aren’t worth discussing. (I’m not going to discuss the numerical irony.)

OK. Maybe this is reasonable. Maybe client-attorney sex is rampant.

Is the lawyer financial & job crisis the result of sex replacing billing?

Fortunately, there are statistics. You need to make it to paragraph 11 to discover the extent of this problem: “Between September 1992 and January 2010, the state bar investigated 205 complaints of misconduct under the current sex restriction. ... It imposed discipline in only one case.”

If the author of this sentence had done any math, he might have noticed that this amounts to 11.4 complaints per year – less than one a month – for 180,000-plus lawyers in the state.

And only one got disciplined in 18 years. (That math on that should have been easy.)

Stop the presses! (If there are any left.)

What this story needed, obviously, is expert analysis. What do these statistics mean?

There are several possible conclusions.

It could mean that lawyers are unattractive and should get over themselves.

Or perhaps clients are unattractive when they have legal problems. (Romance advice: If you want to attract a mate, stop obsessing over that unlawful detainer notice.)

Or it may be that most clients are satisfied with the sex their lawyers offer. Hence, the lack of complaints.

Clearly, further study is called for.

In the meantime, here’s something to think about. The story also contains this: “The current rule also forbids sex if it causes the lawyer to ‘perform legal services incompetently.’”

This is redundant. Anything that causes a lawyer to perform legal services incompetently is improper.

But what if you look at it the other way?

What if sex causes the lawyer to perform legal services competently?

Should it be required?

Would it be unethical to deprive a client of this benefit?

Now there’s a rule that would merit news coverage.

By the way, if you think weird newswire stories don’t have an impact, you’re probably right – but this story did manage to spur at least two California newspapers to editorialize on the topic.

Headline from the Sacramento Bee: “California, must we really explain why lawyer-client sex isn’t OK?”

Apparently, they must.

For some reason, this headline appeared atop a very large reproduction of what appears to be the seal of the State Bar. There seems to be no reason for this but I did enjoy the depiction of a bear doing a sort of tightrope walk across the top of the scales of justice.

The editorial says that lawyers have an inherent power edge on the vulnerable people who seek their counsel. I’m guessing some of you lawyers with bossy or hardened criminal clients may be surprised to hear this.

The statement is followed by this sentence: “The California State Bar says it investigated 205 complaints of this kind of misconduct between 1992 and 2010, but the evidence for disciplinary action was only sufficient in one.”

I know I’ve heard that somewhere before.

And that sentence is followed by the statement: “That’s why at least 17 states draw a clear line and make attorney-client sex a violation of professional ethics.”

There’s no mention why twice as many states do not.

Ah, math.

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