WHEREAS, on August 26, 2023, the Disciplinary Board of the Supreme Court of Pennsylvania (“Board”) published for comment a proposed amendment to the comments to Rule of Professional Conduct 1.8(j), the rule prohibiting a lawyer from having sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced [53 Pa.B. 5275], which Rule 1.8(j) was made effective in 2015. [45 Pa.B. 279], and

WHEREAS, the proposed additional comment [17] to Rule 1.8(j) provides: “For purposes of this Rule, ‘sexual relations’ includes, but is not limited to, sexual communications with a client,” and

WHEREAS, the Board’s Explanatory Report explains the stated basis for the additional comment as follows: “Recently, Pennsylvania’s disciplinary system has experienced an increase in ‘sex with clients” investigations where the matters involve sexual communications by way of ‘sexting’ or similar communications, as opposed to actual physical relationships.” The Report states that the proposed new language is intended “to clarify and reinforce to the profession that lawyers have an ethical obligation to keep their relationships with clients professional, and that the current prohibition on ‘sexual relations’ also includes sexual communications engaged in by a lawyer with a client after the commencement of representation and where no prior consensual relationship existed. The justification for the Rule’s ban on client sexual relations applies with equal force to prohibit sexual communications between lawyer and client, as the same danger of harm to the client’s interests exists,” and

WHEREAS, the term “sexual communications” is not defined and a search of the term will not yield a consistent accepted definition, and

WHEREAS, there is no Model Rule of Professional Conduct counterpart to the Board’s proposed additional comment to Rule 1.8(j), and to the Board of Governor’s knowledge, there is no state with rule language prohibiting all forms of “sexual communications” with clients, and

WHEREAS, the Board of Governor’s is concerned about the lack of a definition for the terms used in the proposed additional comment that would impact the potential scope of the amendment, and

WHEREAS, the Board of Governors believes that the proposed amendment would substantially broaden the meaning of the prohibition on “sexual relations” with an existing client to apply to any “sexual communications” with a client, and

WHEREAS, The Board of Governors believes the proposed amendment is well-intentioned, but provides insufficient guidance concerning what conduct would potentially be subject to discipline and that it is important to provide clear guidance concerning the scope and application of the rule, so that attorneys know what specific conduct is violative of the rule, and

WHEREAS, the Board of Governors believes that the proposed amendment should focus on a lawyer’s “communication” seeking to initiate sexual relations or a sexual relationship that would involve a violation of Rule 1.8(j) rather than distorting and substantially expanding the term beyond its usual and customary meaning, and potentially placing lawyers in jeopardy of discipline for engaging in conduct that some would view as innocent, ill-advised or merely flirtatious communications; and

WHEREAS, under Rule 8.4(g), it is professional misconduct for a lawyer, in the practice of law, to knowingly engage in conduct constituting harassment on the basis of sex.

NOW THEREFORE, BE IT RESOLVED that the Board of Governors authorizes the Chancellor to submit a comment letter to the Disciplinary Board conveying the recommendation that proposed Comment [17] be supplemented with the following language [proposed new language underlined]: “For purposes of this Rule, ‘sexual relations’ includes, but is not limited to, sexual communications with a client and for purposes of this comment ‘sexual communications’ means a lawyer’s communications seeking to initiate sexual relations with a client.”

AND IT BE FURTHER RESOLVED, that the Board of Governors believes that the foregoing revised formulation of the comment language would address the primary objective of the proposed rule change and is more in keeping with the existing prohibition in Rule 1.8(j). The revised proposed comment language also should not be as susceptible to challenges for vagueness or in circumstances where the communications at issue may be unprofessional or inappropriate but do not amount to misconduct for which attorney discipline is warranted.

PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
Adopted: September 28, 2023