Is Sexting “Sex”?

No, according to the Supreme Court of Appeals of West Virginia. See Lawyer Disciplinary Board v. Sayre, No. 18-0617 (W. Va. Oct. 24, 2019).¹

ABA Model Rule of Professional Conduct 1.8(j) provides that a “lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” Model Rules of Prof’l Cond R. 1.8(j). However, neither the model rule nor its Comment 10 defines what a “sexual relationship” is.² See Model Rules of Prof’l Cond. R. 1.8(j), cmt. 10.

In contrast, West Virginia Rule of Professional Conduct 1.8(j) expressly defines the term:

For purposes of this rule, “sexual relations” means sexual intercourse or any touching of the sexual or other intimate parts of a client or causing such client to touch the sexual or other intimate parts of the lawyer for the purpose of arousing or gratifying the sexual desire of either party or as a means of abuse.

See W.V. Rule of Prof’l Cond. r. 1.8(j).

Applying this definition, the West Virginia supreme court in Sayre found that the respondent did not violate West Virginia Rule 1.8(j). Sayre and L.S., his client, merely exchanged text messages that were “mutually suggestive of sexual conduct.” Id. at 8. Because there was no physical, sexual contact between Sayre and L.S., the court reasoned that Sayre’s conduct did not meet the definition of “sexual relations” set forth in Rule 1.8(j). This clearly was the right result.

Is Sexting “Sex” in Louisiana?

Uncertain. The Louisiana Rules of Professional Conduct do not expressly prohibit sexual relations between a lawyer and client.³ However, the Louisiana Supreme Court has sanctioned respondents for inappropriate sexual relationships under other rules. For example, in the matter of In re Fuerst, No. 2014-B-0647 (La. Dec. 9, 2014), the court found that Fuerst violated Rules 1.7(a)(2) (in which a conflict of interest exists because of a personal interest of the lawyer) and 8.4(d) (conduct prejudicial to the administration of justice) because he had a sexual relationship with a client.

Louisiana has no prophylactic, per se rule on sex with clients. As a result, there exists a real risk that Louisiana lawyers could be investigated for nonsexual relationships with clients. For example, ODC could prosecute a Louisiana lawyer for holding hands with a client while walking through a park, hugging a client, having an emotional relationship, discussing sex on the phone and, yes, even sexting. Any of these activities could be alleged to present a personal interest conflict arising from the risk that the relationship might impair the lawyer’s representation.

Considering this risk, ODC and the Louisiana Supreme Court should pause before applying Louisiana Rule 1.7(a)(2) to nonsexual relationships. Absent proof of such a relationship causing material harm to a client, a Louisiana lawyer should not be sanctioned for a nonsexual relationship with a client. Sexting is not, and should not be considered, sex.