Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.

Back to the Drawing Board

After 14 years of hard work and effort to revise the California Rules of Professional Responsibility, the California State Bar has been officially instructed to “start over.”

California is the only State in the Country which has not adopted some form of the ABA’s Model Rules of Professional Conduct. California’s current Rules of Professional Conduct (“CRPC”), which differ in several significant respects from the ABA Model Rules, were approved and adopted by the California Supreme Court in 1989.  

In 2001, the State Bar established the California Rules Revision Commission with the purpose of revising the existing CRPC in an effort to harmonize the rules with national standards and presumably bring California more in line with the ABA Model Rules of Professional Conduct. (The Commission’s charter phrased this effort as seeking to “[e]liminate and avoid unnecessary difference[s] between California and other states, fostering the evolution of a national standard with respect to professional responsibility issues.”)  

The Commission began what would become a decade-long process of revisions, proposals, and debate. By 2010, the Commission had produced a set of 67 “new” rules and proposals ready for submission to the State Bar, and ultimately for the California Supreme Court’s approval. Notably, in most areas where there were significant differences between California and the ABA rules, the California distinction remained. One oft-noted example is ABA Model Rule 8.3, which requires an attorney to report misconduct by other members of the Bar.  California, however, has no such requirement (i.e. we are a “no snitch” state) and the revision process maintained that status quo. 

The 67 revisions were approved by the State Bar in 2011 and submitted, in bulk, to the California Supreme Court for approval and adoption. The Supreme Court rejected the submission however, instead asking for the rules to be resubmitted, one-at-a-time, with explanations. Accordingly, over the course of the next few years, 17 rules were submitted to the Supreme Court individually for consideration.  No actions were taken on those 17 submissions and discussion on those proposals, to the extent there were any, are not publicly available.

On August 11, 2014, however, for reasons that are neither public nor readily apparent, the State Bar asked the Supreme Court to return all 17 proposed rule submissions that had been filed with the Court for a “comprehensive reconsideration”.

On September 19, 2014, the California Supreme Court responded, not only granting the State Bar’s request and returning the submissions, but also instructing the State Bar to establish a second Commission to begin the entire process anew. The Supreme Court urged that the second commission “begin with the current CRPC and focus on revisions that are necessary to address developments in the law, and [to] eliminate, where possible, any unnecessary differences between California’s rules and those used by a preponderance of the states.”  The Supreme Court further noted:

“While the second Commission may be guided by and refer to the American Bar Association’s Model Rules of Professional Conduct where appropriate, it should avoid incorporating the purely aspirational or ethical considerations that are present in the Model Rules and Comments.”

This new, “second” Commission was directed to complete its work and submit all proposed rules for final consideration to the Court by March 31, 2017.

Although there is little available in the public record from which to ascertain exactly why the State Bar sought the return of its submitted proposals, or what has transpired in the past few years while the proposals were under consideration, it appears clear from the Supreme Court’s response that we are, in large measure, “back to the drawing board.” In the meantime, for better or worse, California will remain the ethical “outlier” and continue to operate under our own set of professional rules. Perhaps we’ll see a change in 2017? 

For an interesting look into the “back story” behind the Commission’s lengthy efforts and some thoughtful insight into the future of our ethics rules, see Legal Ethics Committee member David Carr’s articles on the subject on his legal blog . Those articles can also be found Here and Here.

– Patrick Kearns

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**