November 2018

New Rules of Professional Conduct Take Effect November 1, 2018: The Changes You Need to Know About

By Phillip Simpler

Paul, Plevin, Sullivan & Connaughton LLP

In May of this year, the California Supreme Court approved changes to California’s Rules of Professional Conduct for the first time in 29 years.  The Court approved 27 amended rules without changes, and approved 42 more with modifications.  The changes, which take effect on November 1, 2018, are meant to closer align California’s rules with legal standards across the country.  Furthermore, the rules committee clarified that the rules are meant as minimum standards, violation of which subjects the offending attorney to discipline from the State Bar.  

Below are five rule changes that all attorneys, and particularly newer attorneys, should be sure to note (copies of rules follow at the end):

1. Rules 1.1 and 1.3 separate an attorneys’ duties of competence and diligence

Prior to the rule change, the State Bar included the attorney’s duty to act diligently as part of the duty of competence.  The new rules separate these into separate duties, which makes sense.  Understandably, competent attorneys can fail to act with diligence, and even the most diligent of attorneys can be incompetent to handle a particular matter. 

2. Rule 1.8.10 tightens restrictions on sexual relations with current clients

California’s standard was previously one of the most relaxed with respect to sexual relationships between attorneys and their clients.  The new rule is significantly more restrictive.  In essence, attorneys are now prohibited from engaging in a sexual relationship with a current client, unless: 1) the relationship pre-existed the attorney/client relationship, or 2) the attorney and client are married. 

3. Rule 3.3 – Candor toward the tribunal

Of course, all attorneys know that lying in court is against the rules.  While the general rule is clear, the rules committee added this rule to clarify the specifics and the scope of an attorneys’ duty of candor.  Under the new rule, an attorney: 1) cannot ‘knowingly’ make a false statement of law or fact or fail to correct a false statement of material fact or law previously made to the tribunal; 2) fail to disclose binding authority controlling in the jurisdiction; or 3) offer evidence that the attorney knows to be false. 

4. Rule 5.2 – Responsibilities of Subordinate Attorneys

New attorneys do, and often should, rely on the experience of our superiors for guidance.  However, the new rules do not absolve associates and subordinate attorneys from discipline for failing to comply with the Rules of Professional Conduct, notwithstanding that the lawyer acts at the direction of another lawyer or person.  The lone exception is where a subordinate lawyer acts in accordance with a supervisory lawyer’s ‘reasonable’ resolution of an arguable question of professional duty.  All attorneys, regardless of experience level, are required to understand and comply with the ethical rules.    

5. Rule 5.3 – Responsibilities of Non-lawyer Staff

The new rules also clarify that attorneys responsible for managing non-lawyer staff are responsible for taking reasonable efforts to ensure that the non-lawyer staff complies with the Rules of Professional Conduct.  A managing lawyer is responsible for violations committed by the lawyer’s staff, regardless of whether the lawyer was aware of the misconduct, if the lawyer learns of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. 

All of the new rules can be accessed using the following link: http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/New-Rules-of-Professional-Conduct.  The new rules discussed in this article are copied below:

Rule 1.1 Competence

(a) A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.

(b) For purposes of this rule, “competence” in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably* necessary for the performance of such service.

(c) If a lawyer does not have sufficient learning and skill when the legal services are undertaken, the lawyer nonetheless may provide competent representation by (i) associating with or, where appropriate, professionally consulting another lawyer whom the lawyer reasonably believes* to be competent, (ii) acquiring sufficient learning and skill before performance is required, or (iii) referring the matter to another lawyer whom the lawyer reasonably believes* to be competent.

(d) In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required if referral to, or association or consultation with, another lawyer would be impractical. Assistance in an emergency must be limited to that reasonably* necessary in the circumstances.

Rule 1.3 Diligence

(a) A lawyer shall not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client.

(b) For purposes of this rule, “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 unduly delay a legal matter entrusted to the lawyer.

Rule 3.3 Candor Toward The Tribunal

(a) A lawyer shall not:

(1) knowingly make a false statement of fact or law to a tribunal* or fail to correct a false statement of material fact or law previously made to the tribunal* by the lawyer;

(2) fail to disclose to the tribunal* legal authority in the controlling jurisdiction known* to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or knowingly misquote to a tribunal* the language of a book, statute, decision or other authority; or

(3) offer evidence that the lawyer knows* to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence, and the lawyer comes to know* of its falsity, the lawyer shall take reasonable* remedial measures, including, if necessary, disclosure to the tribunal,* unless disclosure is prohibited by Business and Professions Code section 6068, subdivision (e) and rule 1.6. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes* is false.

(b) A lawyer who represents a client in a proceeding before a tribunal* and who knows* that a person* intends to engage, is engaging or has engaged in criminal or fraudulent* conduct related to the proceeding shall take reasonable* remedial measures to the extent permitted by Business and Professions Code section 6068, subdivision (e) and rule 1.6.

(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding.

(d) In an ex parte proceeding where notice to the opposing party in the proceeding is not required or given and the opposing party is not present, a lawyer shall inform the tribunal* of all material facts known* to the lawyer that will enable the tribunal* to make an informed decision, whether or not the facts are adverse to the position of the client.

Rule 5.2 Responsibilities of a Subordinate Lawyer

(a) A lawyer shall comply with these rules and the State Bar Act notwithstanding that the lawyer acts at the direction of another lawyer or other person.*

(b) A subordinate lawyer does not violate these rules or the State Bar Act if that lawyer acts in accordance with a supervisory lawyer’s reasonable* resolution of an arguable question of professional duty.

Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a lawyer who individually or together with other lawyers possesses managerial authority in a law firm,* shall make reasonable* efforts to ensure that the firm* has in effect measures giving reasonable* assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over the nonlawyer, whether or not an employee of the same law firm,* shall make reasonable* efforts to ensure that the person’s* conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of such a person* that would be a violation of these rules or the State Bar Act if engaged in by a lawyer if:

(1) the lawyer orders or, with knowledge of the relevant facts and of the specific conduct, ratifies the conduct involved; or

(2) the lawyer, individually or together with other lawyers, possesses managerial authority in the law firm* in which the person* is employed, or has direct supervisory authority over the person,* whether or not an employee of the same law firm,* and knows* of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable* remedial action.