AZBBHE Sexual Conduct with Client Attorney 

Allegations of sexual conduct with a client or former client are among the most serious matters investigated by the Arizona Board of Behavioral Health Examiners (AZBBHE). These cases can threaten a behavioral health professional’s license, reputation, and livelihood. If the allegations involve a current client, they may also expose the licensee to a criminal investigation. 

AZBBHE frequently investigates these complaints by examining text messages, emails, social-media communications, treatment records, billing records, and the circumstances surrounding the beginning and end of the therapeutic relationship. Because statements and evidence provided to the Board may later be shared with law enforcement, licensees should obtain legal advice before responding. 

Lavy Law represents counselors, social workers, marriage and family therapists, and addiction counselors in investigations and disciplinary proceedings before AZBBHE. 

What Does Arizona Law Prohibit? 

Under A.R.S. § 32-3251(16)(v), unprofessional conduct includes: 

“Engaging in any sexual conduct between a licensee and a client or former client.” 

Unlike Arizona’s dual-relationship provision, subsection (v) applies to both current and former clients. Ending treatment before beginning a sexual relationship therefore does not automatically prevent the Board from finding a violation. 

The licensing statute does not require the Board to prove that the client was harmed or that the licensee intended to exploit the client. Consent by the client also does not necessarily provide a defense to professional discipline. However, the timing and circumstances of the relationship may significantly affect the Board’s evaluation of the evidence, related allegations, and appropriate discipline. 

Common Sexual-Conduct Allegations 

An AZBBHE complaint may involve allegations of: 

• Sexual intercourse or other sexual contact with a current client;
• Beginning a romantic or sexual relationship shortly after treatment ended;
• Sexting or exchanging sexually explicit photographs; 
• Arranging personal meetings outside the therapeutic setting; 
• Continuing to provide services after a sexual relationship began; or
• Denying the relationship during the investigation when electronic communications suggest otherwise. 

The exact facts matter. A sexual-conduct allegation may depend on whether a professional relationship actually existed, when treatment began and ended, what conduct occurred, and whether text messages or other communications have been presented accurately and in context. 

What Is the Board’s Evidentiary Standard? 

Most AZBBHE disciplinary allegations must be proven by clear and convincing evidence. Sexual-conduct allegations under subsection (v), however, are expressly excluded from that heightened standard. See A.R.S. § 32-3281(X). 

The applicable standard is therefore preponderance of the evidence, meaning the Board must establish that the alleged violation was more likely than not to have occurred. See A.A.C. R2-19-119(A). 

This is a lower evidentiary standard than clear and convincing evidence. As a result, credibility, corroborating communications, the timeline of treatment, and the consistency of the licensee’s statements can be especially important. 

Other Related Violations 

A sexual-conduct investigation may result in allegations under subsection (v) and additional provisions of A.R.S. § 32-3251(16), including: 

• Impairment – subsection (l): Engaging in any conduct, practice, or condition that impairs the licensee’s ability to safely and competently practice the licensee’s profession. 
• Exploitation – subsection (x): Taking advantage of a professional relationship with a client, former client, or supervisee for the benefit or profit of the licensee.
• Misrepresentation – subsection (c)(ii): Making an oral or written misrepresentation of fact in a statement provided during a Board investigation or disciplinary proceeding. 
• Misrepresentation concerning licensure – subsection (c)(i): Making an oral or written misrepresentation to secure or attempt to secure the issuance or renewal of a license.
• Providing services after sexual contact – subsection (w): Providing behavioral health services to a person with whom the licensee has had sexual contact. 
• Conduct contrary to professional ethics – subsection (k): Engaging in conduct contrary to recognized behavioral-health ethics or that endangers a client’s health, welfare, or safety. 
• Failure to provide requested information – subsection (o): Failing to furnish information within the specified time when legally requested by the Board.
• Failure to provide access to records – subsection (u): Failing to allow the Board or its investigators to examine documents, reports, and records relating to the licensee’s practice. 

A licensee’s response to the investigation can therefore create additional allegations even when the original complaint involved only subsection (v). An inaccurate denial, incomplete timeline, altered record, or misleading description of the relationship may become a separate disciplinary issue. 

Potential Defenses and Mitigating Factors 

Depending on the evidence, potential defenses may include: 

• The complainant was never a client or former client of the licensee;
• The alleged sexual conduct did not occur; 
• The alleged contact was not sexual in nature; 
• Text messages have been altered, selectively produced, or taken out of context;
• The alleged timeline is inconsistent with treatment, billing, employment, or location records; 
• When the underlying violation cannot reasonably be disputed, mitigating factors may include: 
• The conduct involved a former rather than a current client; 
• A substantial period elapsed after treatment ended; 
• The licensee did not continue or resume treatment after sexual contact;
• The licensee has no prior disciplinary history; 
• The licensee has accepted responsibility and demonstrated insight;
• The licensee obtained ethics education, treatment, supervision, or consultation; and 

Mitigation generally affects the appropriate discipline; it does not necessarily eliminate a violation of subsection (v).

Possible Disciplinary Outcomes 

AZBBHE treats sexual-conduct allegations very seriously as a revocation-level violation because of the vulnerability and power imbalance inherent in the therapeutic relationship. The Board describes Arizona as a “no-never state;” accordingly, if it substantiates a violation of A.R.S. § 32-3251(16)(v), mitigating circumstances generally will not persuade the Board to permit the licensee to continue practicing in Arizona. The likely outcomes are: 

• Revocation of the license; or 
• Voluntary surrender of the license through a consent agreement. 

Yet, it is still important to retain an attorney. A sexual-conduct investigation frequently includes allegations of exploitation, impairment, and misrepresentation. Counsel will help you to limit the case to subsection (v), prevent unsupported additional findings, and protect you from criminal liability. Also, your attorney can help negotiate the language in any consent agreement which is important because it becomes a public record. Even when continued practice in Arizona is no longer possible, limiting the admitted facts and disciplinary findings may significantly affect the licensee’s ability to defend an existing license—or seek licensure—in another jurisdiction. 

Why Early Legal Representation Matters 

A licensee’s first response may substantially affect both the licensing investigation and any potential criminal investigation. Denying the existence of the relationship, alleging facts before reviewing the communications, or producing an incomplete set of messages may unintentionally strengthen the allegation or result in additional charges of misrepresentation. 

An attorney can help determine the applicable licensing and criminal provisions, preserve and analyze electronic evidence, evaluate the scope of a subpoena, prepare the licensee for an interview, and present defenses or mitigation without making unnecessary admissions. 

Since criminal exposure is possible, counsel can also evaluate whether and how the licensee should invoke the privilege against self-incrimination while addressing the separate risks to the professional license. 

Frequently Asked Questions