July 2016

The New Rules of the Road? Decision Approaching on Revised Rules of Professional Conduct that Will Affect How You Practice Law

By Eric Deitz

Gordon Rees Scully Mansukhani, LLP

All attorneys practicing in California must be familiar with the Rules of Professional Conduct, which have existed largely unchanged for more than two decades. California stands alone in not having adopted the ABA Model Rules, which apply in all other jurisdictions.

Recognizing changes in professional responsibility law, and in an effort to bring California more in line, not one but two blue-ribbon panels have examined and proposed revisions to the Rules of Professional Conduct since 2001. The first Commission for the Revision of the Rules of Professional Conduct worked on revisions to the rules from 2001 to 2010, only to have its work rejected by the California Supreme Court in 2014.

The Court appointed a second Commission, whose work has now been preliminarily approved by the State Bar Board of Trustees and is open for 90 days of public comment until September 27, 2016. If the work of the second Rules Revision Commission is ultimately approved by the Supreme Court, which is to consider the revised rules by March of 2017, California lawyers will be subject to a number of new or substantially revised provisions.

The most apparent change involves California’s adoption of the numbering system for the ABA Model Rules. This article will summarize a few of the 68 proposed new and amended rules approved by the Board for public comment. More information, and a complete listing of the proposed new rules, may be found at: http://ethics.calbar.ca.gov/Committees/RulesCommission2014/ProposedRules.aspx.

Duties of a Subordinate Lawyer

California is considering the adoption of Model Rule 5.2, which addresses the obligations of a subordinate lawyer. It provides a subordinate lawyer does not violate the rules if he or she acts in accordance with a supervisory lawyer’s “reasonable resolution of an arguable question of professional duty.” The subordinate still must exercise independent judgment to determine if there is an “arguable question” and whether the supervisor’s resolution is reasonable. If adopted, proposed Rule 5.2 eliminates a subordinate lawyer’s defense that he or she “was simply following orders …” when charged with an ethical violation.

Handling Unearned Fees

Proposed Rule 1.15 replaces current Rule 4-100 and makes explicit that advanced unearned fees must be placed in a client trust account until earned. (1.15(a).) An attorney may deposit a flat fee into an operating account provided the lawyer discloses to the client the latter’s right to have the flat fee deposited into trust until the fee is earned; that the client is entitled to the unearned portion of the fee if the representation terminates or the services are not completed; and the client agrees to deposit a flat fee in a client trust account in a writing that discloses the two conditions above.

Blurred Lines

Does the role of “advocate” encompass more than just representing a client’s legal interests? Proposed Rule 1.14 will permit a lawyer to take protective action on behalf of a client with diminished capacity who has given his or her advance informed written consent if there is a “significant risk that the client will suffer substantial … physical, psychological, or financial harm …” without protective action. The proposed rule will not allow an attorney to initiate a conservatorship proceeding against a client, as such action may be considered adverse to the client’s interests and would involve the disclosure of confidential information acquired during the course of the lawyer’s representation.

Not Just Competence, But Diligence, Too

California requires an attorney to act with competence when representing a client (Rule 3-110), and this duty continues substantially unchanged in Proposed Rule 1.1. Proposed Rule 1.3 adds a duty of diligence when representing a client. It provides a “lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to act with reasonable … diligence in representing a client.” Per subsection 1.3(b) “‘reasonable diligence’ shall mean that a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or without just cause, unduly delay a legal matter entrusted to the lawyer.” 

As Proposed Rule 1.3 has no equivalent under the current Rules of Professional Conduct and differs from ABA Model Rule 1.3, which provides a “lawyer shall act with reasonable diligence and promptness in representing a client ...,” authority interpreting Proposed Rule 1.3 is needed to better analyze whether requesting multiple extensions to respond to discovery or similar conduct may constitute a rules violation. Proposed Rule 1.3 must be read in conjunction with Proposed Rule 3.2, which provides a “lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.”

If adopted in whole or in part, the rules proposed by the second Rules Revision Commission will substantially alter the duties owed by California lawyers, who will need to understand these changes. Resources interpreting the new or modified rules are already available, including programs being offered by the San Diego County Bar Association’s Legal Ethics Committee, which has presented two in a continuing series of CLE programs in conjunction with the Civil Litigation Section. Look for details regarding the next program in the series, which will be offered in early 2017.

**No portion of this article 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.**