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Professional Liability

Legal Updates for Lawyers' Professional Liability

Pennsylvania Supreme Court Adopts Modification to Rule of Professional Conduct 1.8(j)

Presented by the Lawyers' Professional Liability Practice Group

October 11, 2024

After comments by the Pennsylvania Bar Association and the Philadelphia Bar Association, the Pennsylvania Supreme Court adopted a modification to the Rule of Professional Conduct 1.8(j). Rule 1.8(j) originally read: “A lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced.” 

Language was added to the text of both the Rule and the corresponding Comment [17] which expands the meaning of “sexual relations” in the context of a client-lawyer relationship. The term “sexual relations,” as contemplated by the Rule, is expanded to include, but is not limited to, “communications of a sexual nature.” The updated Comment [17] to the Rule 1.8 indicates that the revised language is, indeed, meant to be construed broadly as “communications of a sexual nature means requesting or transmitting any content, images, audio, video, or messages that contain sexually explicit material…” Comment [17] elaborates that prohibited communications include those “…that are intended to arouse or gratify the sexual desire of the sender or recipient.” 

Text messages between attorney and client containing sexual language would be included in this Rule, but the Rule could feasibly also include emoji used in a manner which is sexual in nature. Comment [17] indicates there is a carve out for “communications that contain sexually explicit content but are related to the client’s legal matter and are made in furtherance of the representation…” These types of communications are not “of a sexual nature” for the purposes of this Rule. All practitioners need to pay close attention to this change so they do not inadvertently violate the Rules as amended. 

 

Legal Updates for Lawyers’ Professional Liability – October 11, 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.

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