Question D

 Posted on January 16, 2011 in Uncategorized

Question D on the State Bar's referendum seeks approval of amended rules 1.13, 1.14, and 1.17.

Rule 1.13. Prohibited Sexual Relations(a) A lawyer shall not condition the representation of a client or prospective client, or the quality of such representation, on having any person engage in sexual relations with the lawyer.(b) A lawyer shall not solicit or accept sexual relations as payment of fees or expenses.(c) A lawyer shall not have sexual relations with a client that the lawyer is personally representing unless the lawyer and client are married to each other, or are engaged in an ongoing consensual sexual relationship that began before the representation.Terminology: See Rule 1.00 for the definitions of "person" and "represents."Rule 1.14. Diminished Capacity(a) When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment, or for another reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client's own interest, the lawyer may take reasonably necessary protective action. Such action may include, but is not limited to. consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, attorney ad litem, amicus attorney, or conservator, or submitting an information letter to a court with jurisdiction to initiate guardianship proceedings for the client.(c) When taking protective action pursuant to (b). the lawyer may disclose the client's confidential information to the extent the lawyer reasonably believes is necessary to protect the client's interests, unless otherwise prohibited by law.Terminology: See Rule 1.00 for the definitions of "consult," "reasonably.'" "reasonably believes," "represents," and "substantial."Rule 1.17. Prospective Clients(a) A person who in good faith discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.(b) A lawyer shall not use or disclose confidential information provided by the prospective client, except as provided in Rule 1.05 or (d)(2).(c) A lawyer who has received confidential information from a prospective client shall not represent a person with interests materially adverse to those of the prospective client in the same or a substantially related matter, except as provided in (d)(1) or (d)(2). When a lawyer is personally prohibited by this paragraph from representing a person in a matter, no lawyer who is affiliated with the personally prohibited lawyer, and who knows or reasonably should know of the prohibition shall represent that person in that matter.(d) When a lawyer has received confidential information from a prospective client, representation of a client with interests materially adverse to those of the prospective client in the same or a substantially related matter is permissible if:(1) the prospective client has provided informed consent, confirmed in writing, to the representation; or (2) the lawyer conditioned the discussion with the prospective client on the prospective client's informed consent that no information disclosed during the discussion would be confidential or prohibit the lawyer from representing a different client in the matter.Terminology: See Rule 1.00 for the definitions of "affiliated," "confirmed in writing," "informed consent," "knows," "person," "personally prohibited," "reasonably should know," "represents," and "writing."

All three rules are new.

Rule 1.14 tells lawyers to maintain "a normal client-lawyer relationship" with clients with diminished capacity, but permits them to take protective action if the client "has diminished capacity, is at risk of substantial physical, financial, or other harm unless action is taken, and cannot adequately act in the client's own interest," which really says a whole lot of nothing (what if the client is unable to assist in his own defense?) but is unexceptionable and probably harmless.

Rule 1.17 creates a new conflict-of-interest rule for prospective clients. If person A comes to me in good faith to talk about hiring me on his his federal dope conspiracy case and gives me confidential information but doesn't then hire me, I can't represent person B in the same dope conspiracy unless I know that their interests won't be materially adverse (how could I know that?) or I got a written waiver from person A... or unless I told person A up front that the information he provided in our initial consultation would not be confidential, which is not bloody likely: the lawyer-client relationship that begins with the client waiving confidentiality is doomed. And that's my big problem with the rule: what a prospective client tells a lawyer should be confidential, and a lawyer shouldn't be asking a prospective client to waive that confidentiality. Still, crappy lawyers will do what crappy lawyers will do, and if the State Bar wants to enable the crappy lawyers to get people to give up their secrets, I'll consider allowing it if the rest of the Question D package makes it worthwhile.

The rest of the Question D package is Rule 1.13, which is the interesting one. Lawyers and clients should be able to set the terms of their contract, but trading sex for legal services is prostitution, which is illegal anyway, so the State Bar's interference with our right to contract in 1.13(a) and (b) is not as heinous as in Rule 1.15.

What about 1.13(c), barring a lawyer from starting a sexual relationship with a client? This would appear at first blush to interfere with the clients' sexual privacy rights by telling them whom they can't have sex with. But patients can't have sex with their doctors or their therapists; the reasoning is that there is an imbalance of power between the professional and the patient that makes it too likely that the patient will be taken advantage of. The same reasoning applies to lawyers: people come to us distraught and desperate, and it's at best unseemly for us to take sexual advantage of that.

In a more sexually open and enlightened culture, it would not be a big deal, but America is so repressed that sometimes people suffer real psychological and emotional harm when they make sexual decisions that they later regret. Other than the principle that clients should be able to have sex with whomever they please, I can see no good reason to allow lawyers to start sexual relationships with their clients. It's more than a little embarrassing that Texas (by no means one of the most enlightened states) is one of the last states to adopt the proposed rule.

Rule 1.17 enables crappy lawyers, but otherwise creates a sound rule. Rule 1.14 is likewise harmless. Rule 1.13 does no harm, and might help some vulnerable clients. So I'm willing to vote "Yes" to Question D.

State Bar of Texas Referendum Ballot