Legal Ethics Corner

Ethics Corner 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 for SDCBA members.  

Elephant Bites:  Nibbling on the Proposed New Rules of Professional Conduct
At its September 2010 meeting, the State Bar Board of Governors approved the submission of 67 proposed new Rules of Professional Conduct to the California Supreme Court for approval. This is a complete revision of the current rules, which were adopted in 1989. 
It’s a big event. Literally. The proposed new Rules run to over 100 pages, including the Rules themselves and very extensive comments on the Rules. By contrast, the 1989 rules run about 20 pages; the original California Rules of Professional Conduct, adopted in 1928, ran about four pages and consisted of just 17 rules.
The world, the law and the legal profession are more complex than they were in 1928 and 1989, but the new rules have already drawn some criticism for being too long and too complex.   Some, including some members of the commission that re-wrote the rules, have questioned whether this trip down Revision Lane was really necessary. 
Nevertheless, it seems very likely that the California Supreme Court will adopt some version of these Rules.   The Court can, if it wishes, change the Rules on its own inherent authority, something it has done in the past, but it is clear that the Supreme Court regards this project as necessary.
Every California lawyer needs at least a basic knowledge of the Rules of Professional Conduct to be an ethical practitioner. Learning the new Rules is going to be necessary.   There is a lot to digest, especially for practitioners who have not studied the ABA Model Rules. But even if you have to eat an elephant, you still have to do it one bite at a time.   Here are a few nibbles to get us started.
One of the obvious changes is the adoption of the ABA Model Rules numbering system and basic structure.   There are eight Chapters:
                        Chapter 1:     Lawyer-client Relationship (18 rules)
Chapter 2:     Counselor (3 rules)
                        Chapter 3:     Advocate (9 rules)
                        Chapter 4:     Transactions with Persons Other Than Clients (2 rules)
                        Chapter 5:     Law Firms and Associations (7 rules)
                        Chapter 6:     Public Service (5 rules)
                        Chapter 7:     Information About Legal Services (5 rules)
                        Chapter 8:     Maintaining the Integrity of the Profession (6 rules)
One of the goals of the rules revision is to make California’s ethics rules more consistent with the law in the rest of the country. 49 other states have now adopted some version of the ABA Model Rules; when (if?) these rules are approved, California will be the 50th and last state to do so.
Most of the rules do not change the substance of California’s law of lawyering but do clarify and integrate concepts from case law. A few rules do change California law substantively.
Here are few of the rules that are new but do not substantively change California law, in my view:
Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer: the rule clarifies that the client decides the objectives of the representation while the lawyer determines the means.
Rule 1.4(b) Communication: requires, consistent with 1.2, that the lawyer explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Rule 1.5(b) Fees: incorporates the “shocks the conscience” test from case law while preserving unconscionability as the discipline standard; the ABA model rule requires attorney fees to be reasonable.
Rule 1.6(b) Confidentiality: makes it clear an attorney has a limited “self defense” exception to confidentiality when attacked by a client.
Rule 1.8.7 Aggregate Settlements: requires lawyers to obtain informed written consent of all clients to an aggregate settlement.
Rule 3.8 Special Responsibilities of a Prosecutor: restates the prosecutor’s ethical duty to pursue justice.
Some of the rules that change California law substantively:
Rule 1.7 Conflict of Interest: Current Clients: adopts ABA standard that defines adverse interests as those that materially limit the lawyer’s ability to serve the client and requires that the lawyer have reasonable belief that he or she can provide competent and diligent representation to the clients.
Rule 1.18.10: Sexual Relations With Clients: changes California’s former rule, which only banned sexual relations if it affected the competency of the representation, with the ABA’s flat ban.
Rule 4.2: Communication with a Person Represented by Counsel: forbids contact with a “person” while the old rule prohibited contact with a “party” represented by counsel. This change has been opposed by criminal prosecutors and some criminal defense attorneys and might be one the Supreme Court will change.
There is no substitute for actually reading the rules and the commentary. They are available on the State Bar website here in case your appetite for ethics has been stimulated.   There will undoubtedly be many MCLE programs devoted to the new rules once they are adopted by the California Supreme. Until such time, the current rules govern.
--David Cameron Carr
**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.**