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California May Get New Rules of Professional Conduct

By Renee Choy Ohlendorf, Litigation News Associate Editor – September 21, 2011

The State Bar of California and the California Supreme Court are considering a major restructuring of the state’s ethics rules. The State Bar recommends that the Rules of Professional Conduct be replaced with 67 new rules based upon the American Bar Association’s Model Rules of Professional Conduct. California is the only state that has not adopted the Model Rules, or a version of them.

The State Bar requests approval of six of the proposed rules in its petition to the California Supreme Court. Those are Rule 1.0 (regarding the purpose and scope of the rules) and Rules 7.1 through 7.5 (regarding advertising). The State Bar limited its initial submission to allow the court to consider the proposal’s logic and organization without being overwhelmed by detailed materials on all 67 proposed rules. The petition includes some dissenting opinions on particular rules.

The State Bar will file the remaining rules after a decision is made by the California Supreme Court on the first set. The court has not announced when it will make its decision.

California’s rules are being revamped now due to “many developments since the last large scale revision of the rules in the 1980s,” explains Robert L. Kehr, Los Angeles, member of the State Bar of California’s Commission for the Revision of the Rules of Professional Conduct. “There was the issuance of the Restatement (Third) of the Law Governing Lawyers, there was the completion of the ABA’s Ethics 2000, which made substantial revisions to the ABA Model Rules, and a number of important case law developments in California,” he says.

Will the Ethics Rules or Their Scope Change?
The proposed changes are organizational and substantive. First, the structure and numbering system of the new rules will now align with the Model Rules, providing a more uniform format of ethical rules across the country. The new organization “will make it much easier for California lawyers who are dealing with out-of-state issues to identify what the local rule is and compare it to the corresponding California rule,” observes Kehr. “And the same is going to be true for out-of-state lawyers who have dealings in California and need to know what the rule is here,” he adds.

Second, the drafters included new rules to clarify issues on which the current Rules of Professional Conduct are silent. Kehr believes that the addition of these rules will eliminate confusion in situations where an issue is addressed by the Model Rules, but not California’s rules.

The new rules, however, may not change the scope of attorneys’ duties. Attorneys’ ethical duties in California derive from case law and statutes, as well as the Rules of Professional Conduct. The drafters attempted to incorporate some of these other sources of authority into the new rules.

Because some of the proposed rules “state explicitly . . . obligations that are not spelled out in California’s current rules, some might view these changes as an expansion of the duties of lawyers,” notes Kehr. “I don’t see these changes as expansions of a lawyer’s duty but as clarifications. For example, proposed Rule 1.4 will govern a lawyer’s obligation to consult with the client. I believe that was always part of California law under the duties of undivided loyalty and competence. But you now can find the duty of consultation only from case law because it isn’t stated in the current California rules. Placing this and other requirements in the rules should make it easier for lawyers to identify proper conduct.”

Departures from the Model Rules
Though California’s proposed rules are styled after the Model Rules, there are significant differences. “California is not going to abandon its entire body of case law simply because of adopting the Model Rules, and the rules proposed to the California Supreme Court strive, in many instances, to retain and conform to California's existing case law,” observes Gregory R. Hanthorn, Atlanta, cochair of the ABA Section of Litigation’s Ethics and Professionalism Committee.

While stressing that he is not a California lawyer, Hanthorn notes differences in the advertising rules. As an example, he points to Rule 7.1, which prohibits lawyers from making any untrue statement or material misrepresentation of fact or law regarding the availability of legal services. “California is stating at the outset that it is going to continue to have a very high standard for statements of fact,” remarks Hanthorn. “California has included in its advertising rules a detailed list of things that will give rise to a presumption that a lawyer has violated this rule, which some states have not done. Those details should be very helpful to members of the bar,” he adds.

California's proposed rules also appear to diverge from the Model Rules on client confidentiality. "California's version of Rule 1.6(b), (d), and (e) continues to limit strictly the circumstances under which a lawyer is required (as opposed to allowed) to go to the authorities or mental health personnel or to others with respect to information that comes from a client, at least from its disciplinary side," notes Hanthorn.

Additionally, California’s rules are distinct on imputation of conflicts, Hanthorn says. "California does not allow, and the new rules do not propose to allow, what is sometimes called unilateral screening," he explains. "California did not adopt Model Rule 1.10(a)(2), which would allow a law firm to put a screen in place, and even absent client consent have the screen be enough to prevent a disqualifying conflict. California's proposed Rules 1.8.11 and 1.10 recognize the imputation of conflicts so that if Lawyer A leaves Firm A to go to Firm B, and there is something that Lawyer A cannot do now because of prior work, now Firm B also has the same conflict." He suggests that "law firms that are looking at lawyers moving need to be very, very careful to identify those types of situations in advance and make sure that they discuss them with clients and seek waivers when appropriate, as provided by California's proposed Rule 1.7(b)."

Good Advice
“Whatever area of law attorneys think they practice in, they’re only half right because there’s another one. And that is professional responsibility law,” says Kehr. He urges all lawyers “to take the time to understand and to treat with great respect the complexity of the obligations that courts and disciplinary authorities will impose on them.”

Keywords: litigation, Model Rules of Professional Conduct, ethics, California


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