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.

New Rules? What New Rules?

Just the other day, a friend – an attorney who provides estate planning services – reached out to me for advice on an ethical dilemma.

Of course, out of respect for client confidentiality, I know only that the situation involved a conservatorship and a client with diminished capacity. California does not currently have a statute or rule akin to ABA Model Rule 1.14(b), which allows an attorney to take action to protect a client with diminished capacity. On the contrary, California’s current rules do not permit the actions set out in ABA Model Rule 1.14(b) – such as seeking the appointment of a conservator – and doing so would be a violation of loyalty and confidentiality. (See C.O.P.R.A.C. Op. 1989-112; S.D. Op. 1978-1.) Further, a California attorney who acts in conformity with ABA Model Rule 1.14(b) risks violating Business and Professions Code section 6068(e), which requires an attorney to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” These issues were central to my friend’s dilemma.

“You know,” I said, “this discussion may all be moot in just a couple of months, when the new and amended Rules come out. Assuming New California Rule 1.14 looks the same as it does now, it might give you some options, as long as you obtain informed written consent in advance.”

My friend looked blankly at me. “New rules? What new rules?”

My response was out of my mouth before I could stop it: “What do you mean, ‘What new rules?’ They’re practically all we can talk about at our Legal Ethics Committee meetings these days!”

Suffice it to say, I’m a little – ahem – myopic when it comes to legal ethics issues. I think everyone finds them as fascinating as I do. But many competent, ethical, and respectable attorneys do not know that earlier this year the Commission for Revision of the Rules of Professional Conduct (a special commission of the State Bar) undertook to revise the California Rules of Professional Conduct.

The Rules have not been revised or updated since 1992 – when the youngest associate at my firm was the tender age of six. (Holy moly, they get younger every year!) The Rules will be renumbered to more closely reflect the format, numbering, and, in some cases, the content of the ABA Model Rules. The sixty-eight Proposed New and Amended California Rules of Professional Conduct span 53 pages of single-spaced type; eight Rules were considered and rejected; and the lives of countless trees were sacrificed to bring us to the precipice of a new and amended set of Rules.

It goes without saying that, in advance of the September 27, 2016 deadline for comment, the Rules garnered a significant amount of debate and attention. I wasn’t kidding when I said it was all we could talk about at the Legal Ethics Committee meetings. The SDCBA Board of Trustees, through the work of its Legal Ethics Committee, submitted a 15-page letter commenting on, approving, disapproving, and, in some cases, articulating concerns about the Rules. The meetings and subcommittee meetings leading to the final version of that letter may not have brought some of you to the edge of your seats, but found them fascinating!

Whether or not our lively meetings, the letter and other public comments, or the live testimony at the July 26 public hearing will result in yet additional changes to the new and proposed Rules has yet to be seen. But trust me on this, folks: one way or another, we’re getting revamped Rules – and soon. The deadline for the Commission to complete this undertaking is March of 2017.

Perhaps you already knew about the re-writing of the rules, or maybe this is the first you’re hearing of it. Either way, you know there’s a storm coming. The way you practice law may change in significant way. Get ready to sing and dance (and practice law) in the rain.

-- Jennifer K. Gilman

**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.**