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.

Countdown to the New Rules of Professional Responsibility

We’re almost there! For regular readers of Ethics in Brief, or for that matter anyone who follows legal ethics in some manner, you’re seeing a lot of articles and information about our new rules of professional conduct. On November 1, 2018, these new rules will go into effect and replace, supplement, and in some instances change our existing rules entirely.

Since we are not quite to November 1 yet, the most common inquiry that I get is the casually asked, deceptively simple question: “So what’s changing”. The answer is complex. Every existing rule is getting some form of make-over; all have been re-numbered; most have been revised, bolstered, or explained in more detail; and some have simply been added or deleted.

Fortunately, the State Bar has provided access to a PDF of the new rules which contains a handy “Table” where we can quickly cross-reference an existing (soon to be “old”) rule of professional conduct with the new rule. For example, an attorney wondering about rule governing a partnership with a non-lawyer (Rule 1-310) could check the table and quickly find that it will soon be governed by Rule 5.5. The New Rules with cross-referencing tables can be found here. (This PDF, also available on the State Bar’s website, includes a convenient, linked table of contents as well, to easily navigate among the rules.)

Importantly, a review of the cross-reference table also includes a list of “New Rules with No California Counterpart”; a list of 16 additional rules that are actually new and do not currently exist in California. Lawyers should pay particular attention to these, as they include new rules governing everything from the improper use of a client’s information (New Rule 1.8.2); to requirements for lawyers acting as third-party neutrals (New Rule 2.4), to requirements for being truthful in statements to others (New Rule 4.1).

One illustration of a new rule that did not previously exist is New Rule 3.2 – Delay in litigation. This new rule prohibits—and thus makes it a basis for professional discipline—needless delay in a proceeding; stating: “In representing a client, a lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or cause needless expense.”

Another notable new rule which did not and does not exist prior to November 1, is New Rule 5.2 – Responsibilities of a Subordinate Lawyer. Rule 5.2 emphasizes an attorney’s responsibilities to comply with the rules, even if they are acting at the direction of another lawyer. Notably, the comments to Rule 5.2 suggest a subordinate lawyer has an obligation to communicate any concerns that an instruction or conduct by a supervising lawyer, in their professional judgement, would result in a violation of the rules.

Similarly, although not identified as a “new” rule with no prior counterpart (but instead is referenced to the prior 3-110 “competence”), New Rule 5.1 contains a detailed discussion of the responsibilities of supervising and managerial lawyers. This rule requires firm managers and supervising lawyers to take reasonable steps to ensure lawyers and non-lawyers who work for them comply with the rules and the State Bar Act.

All practicing attorneys should set aside some time to review the new rules and become familiar with the changes. It is not as daunting as it may seem and, like the conversion tables provided by the State Bar, there are resources to assist you. The San Diego County Bar and its Legal Ethics Committee are also currently putting on a series of presentations designed to address the new rules in palatable groups. You can get information on these presentations on the SCDBA’s webpage and “events” calendar. 

Patrick Kearns is a partner with Wilson Elser Moskowitz Edelman & Dicker LLP. 

[1]  That might raise a different issue: a conflict based on a “material limitation” because of the lawyer’s own interests adverse to those of the client, as found in the new conflict of interest rule (Rule 1.7)—a topic for another day.

**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.**