Sexual Communications Are Sexual Relations, Recent Amendments to RPC 1.8(J)

Effective November 8, 2024, Rule 1.8(j) of the Pennsylvania Rules of Professional Conduct is amended to include “communications of a sexual nature” within the definition of prohibited sexual relations between lawyers and their clients.  Comment [17] to the Rule elaborates:

For purposes of this Rule, ‘communications of a sexual nature’ means requesting or transmitting any content, images, audio, video or messages that contain sexually explicit material or that are intended to arouse or gratify the sexual desire of the sender or recipient.  Communications that contain sexually explicit content but are related to the client’s legal matter and are made in furtherance of the representation are not ‘communications of a sexual nature’ for the purposes of this Rule. 

This change follows an increase in disciplinary investigations over “sex with clients,” where the matters involve sexual communications, such as “sexting,” rather than actual physical relationships.  The intent of Rule 1.8(j) is, of course, to require professionalism in the relationship between lawyers and their clients, and the engagement in sexual communications as an alternative to prohibited physical conduct undermines this intent.  Thus, in August 2023, an amendment to Rule 1.8(j) was proposed that would add a statement in the comments to the Rule that sexual communications are sexual relations.  The proposed amendment did not include any changes to the text of the Rule, but it also did not provide any context or explanation as to what constitutes sexual communications.  The final change provides attorneys with additional guidance as to what, exactly, is prohibited and also allows for protection against disciplinary repercussions for conduct that is not invited by the lawyer.  

In sum, attorneys may not request from or transmit to their clients sexually explicit communications.  Attorneys may not engage in inappropriate relationships with their clients by way of electronic communications only, even where there is no physical contact.  On the other hand, attorneys should not be subject to discipline for unsolicited sexual communications sent by their clients where the attorney does not engage.  Finally, of course, where sexually explicit content is related to a client’s legal matter and transmitted for purposes of the representation, there is no violation of Rule 1.8(j).  

^{Legal Update for Lawyers’ Professional Liability – November 2024 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2024 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.}