March 2016

Rules of Professional Conduct Redux

By David Cameron Carr

Law Office of David Cameron Carr PLC

A special commission of the State Bar of California is engaged in re-writing our Rules of Professional Conduct. These are the Rules that, along with the statutes in the State Bar Act, provide the fundamental “rules of the road” for California lawyers. A violation of these Rules can lead to professional discipline (Bus. & Prof. Code §6077); a violation can also be evidence of a breach of fiduciary duty (Miribito v. Liccardo (1992) 4 Cal. App. 4th 4).

California is the only state that has Rules of Professional Conduct not based on the American Bar Association’s Model Rules of Professional Conduct. The Commission for Revision of the Rules of Professional Conduct is charged with eliminating unnecessary differences between the California Rules and the rules the other 49 states follow. It is also charged with preserving the concept that our Rules are fundamentally discipline rules intended to establish bright lines or minimum standards for attorney conduct, not as setting forth the aspirational goals of the profession.

To some degree, these concepts exist in tension. And that tension has been highlighted by the fact the current Commission is the second Commission to be appointed to tackle this project in this century. The First Commission for the Revision of the Rules of Professional Conduct labored between 2001 and 2010 to produce a version of the Rules that was ultimately rejected by the California Supreme Court in 2014.

The interplay between aspirational guidelines and discipline rules, and the dance between the ABA Model Rules and California’s own exceptional set of rules are themes that have been around almost for as long as we have had Rules of Professional Conduct.

It is perhaps surprising to consider that Rules of Professional Conduct are a relatively new invention. The first widely adopted set of such Rules was the 1908 Canons of Professional Ethics promulgated by the American Bar Association. These rules were largely intended as aspirational norms for the profession, rather than as discipline rules, although some of the language in the 1908 Canons still survives in current rules today.

The State Bar Act of 1927 created the State Bar of California as an integrated bar. As part of that package of reforms, the first California Rules of Professional Conduct were written and adopted in 1928 to guide the new discipline machinery in its quest to clean up the legal profession in our Golden State. Unlike the 1908 Canons, the 1928 California Rules were intended as discipline rules, similar to statutes. They provided bright line guidance regarding minimum standards of conduct. Weighing in at an efficient four pages, the 1928 Rules cited to the 1908 Canons as guidance on the aspirational norms of the profession.

Throughout the 20th century, the ABA Model Rules and California’s Rules were involved in one cycle of revision after another. After six decades, the American Bar Association replaced the Canons with the 1969 Model Code of Professional Responsibility. The Model Code was written to include sections intended to serve as aspirational norm-setting (the “Ethical Considerations”) as well as furnish enforceable discipline rules (“Disciplinary Rules”). California followed by completely rewriting its rules in 1975 and incorporating some of the language from the Model Code’s Disciplinary Rules.

After only 14 years, the American Bar Association declared the Model Code obsolete and replaced it in 1983 with the Model Rules of Professional Conduct. The Model Rules were written as enforceable discipline rules but included extensive commentary intended to furnish prophylactic guidance. They have now been adopted in some version by every state but California.

California followed by adopting our current California Rules of Professional Conduct in 1987, rejecting the Model Rules in favor of fine-tuning the 1975 rules with limited commentary. At the end of the last century, the ABA began its “20/20” project. In response, the Rules Revision Commission that created the 1987 California Rules was re-constituted in 2001 to write a new set of California Rules for a new century.

Nine years later, after some false starts, many hearings and much input from lawyers and others, the First Rules Revision Commission produced what amounted to California's version of the ABA Model Rules, now comprising more than 100 pages with extensive commentary. These new Rules were approved by the State Bar Board of Trustees in 2010. Over the next four years, some of the new rules were transmitted to the California Supreme Court for approval, which never came. It became clear the Court was having trouble digesting the Commission’s work product.

Finally, in August 2014, on an invitation from the State Bar, the California Supreme Court made it clear in a letter to the Board of Trustees: it was returning the Commission’s work product unapproved. In that letter, the Court instructed the State Bar to constitute a Second Rules Revision Commission to start the revision process over, keeping in mind the historical function of the rules as discipline rules, and keeping commentary and the purely aspirational aspects of the rules to a minimum. At the same time, the Commission was still charged with eliminating unnecessary differences between the California Rules and the ABA Model Rules. The timeline to complete this project: March 2017.

Eighteen months into the project, the Second Rules Revision Commission has made substantial progress. It has revised a number of California rules. It has tentatively adopted the ABA numbering system for the new rules.

Perhaps its most significant accomplishment has been the consideration of a new rule aimed at prosecutorial misconduct on a “fast track” basis. In March 2015, the Chief Justice of the Supreme Court of California wrote the State Bar that it “should feel free to consider . . . whether any particular rule or issue might warrant or benefit from fast track consideration and submission to the court.”

The issue that was selected for “fast track” consideration was whether California should have some version of ABA Model Rule 3.8, which addresses the Special Responsibilities of a Prosecutor. Thirty-nine jurisdictions have adopted Model Rule 3.8, paragraph (d), essentially verbatim. That rule requires a prosecutor to timely disclose to the defense all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecution.

The consideration of this wholly new (to California) rule comes against a backdrop of great attention being focused on the exoneration of convicted criminals through the use of the DNA evidence, and the observation of one Ninth Circuit Federal Judge that we were experiencing an “epidemic” of prosecutorial misconduct.

In keeping with the concept of “fast track” consideration, the Commission offered its version of Rule 3.8 for an extensive public comment period before any of the other rules it has produced. That public comment period ran through February 29, 2016, and we wait to see what affect it will have on the Commission. The most likely outcome is that the new Rule will be proffered to the California Supreme Court before end of this year.

The remaining rules will be batched together for one public comment period at some point before March 2017. Some of the more significant rules already approved by the Commission that will be part of that public comment period include:

New Proposed Rule 1.3 “Diligence” specifies that a lawyer shall be diligent, i.e. will handle matters in a timely way, something that is not explicitly spelled out in the existing competence Rule 3-110(A), which will be re-numbered as Rule 1.1, consistent with the ABA Model Rule numbering system.

New Proposed Rule 2.4 “Lawyer as Third Party Neutral” provides that a lawyer working as a third party neutral shall inform unrepresented parties that the lawyer does not represent them.

New Proposed Rules 5.1 “Duties of Managerial and Supervisory Lawyers” and 5.2 “Duties of Subordinate Lawyers” are taken verbatim from the Model Rules. They make it explicit that supervising lawyers must make reasonable efforts to ensure that subordinates comply with the Rules of Professional Conduct and the State Bar Act. Subordinate lawyers who follow ethically questionable instructions from supervising lawyers will not have a “Nuremberg” defense unless the direction is a “reasonable resolution of an arguable question of professional duty.” Rounding out this troika is new Proposed Rule 5.3 “Responsibility for Non-Lawyer Assistants,” which makes clear that lawyers must make reasonable efforts to ensure non-lawyer staff members comply with the ethics rules.

New Proposed Rule 4.3 “Communicating with Unrepresented Person” clears up a significant difference between California and the ABA by changing California’s current Rule 2-100 to prohibit contact with a represented “person” instead of a represented “party.”

New Proposed California Rule 1.4 (former Rule 3-500) “Communication With Clients” now includes an explicit duty to consult with a client regarding the means for obtaining client objectives.

More Rules of Professional Conduct will be arriving in the coming months, although it does not seem that any will be “fast tracked” like California’s proposed version of Rule 3.8.

For more information and to follow the progress of the Second Rules Revision Commission, click here.