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.


“For the times they are a-changin’”

The Rules of Professional Conduct—like it or not—shape our lives. They support State Bar discipline; define “duty” for breach of fiduciary duty; and establish standard of care in malpractice actions. We ignore them at our peril.

They’re changing—some, a lot. Good news: we have a chance to toss in our two cents before they become final.

The Revision Commission—the second to have a go at it—sent 68 revised or new rules to the Board of Trustees; on June 23rd the Board ordered all 68 published for our public comment, along with an alternate to the Commission’s proposed Rule 8.4.1 (Prohibited Discrimination). The time to have our say ends on September 27th.

Why care? First, given the Supreme Court’s involvement, rule changes are likely. Next, we’ll live with whatever rules the Court adopts for a long time. Finally, the changes will affect the way we practice—dramatically.

How so? Let’s look at a few examples.

Rule 1.3—the proposed rules follow ABA Model Rule numbering—mandates diligence, not just competence. Rule 1.5 (Fees) adds two new criteria to determine if fees are unconscionable—or unreasonable when we seek a “reasonable” fee award. Overreaching in negotiating or setting the fee and failure to disclose material facts are factors a court will examine.

The conflict of interest rule (Rule 1.7) is wholly new. Not only does it bar representation directly adverse to another client without informed written consent—no change—but also bars representation if there is a significant risk the lawyer’s representation will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person—or by the lawyer’s own interests. That’s new territory.

For litigators, Rule 3.2 bars using means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense. Put that ethics rule in the hands of a creative trial judge who wants to move a case along, or a federal magistrate judge who is fed up with endless, seeming mindless, discovery disputes!

Rule 3.3 (Candor Toward the Tribunal) not only forbids false statements (hardly a surprise) but would, if the lawyer, the client or a witness the lawyer calls, offers evidence that the lawyer later learns is materially false, require the lawyer to “take reasonable remedial measures, including, if necessary, disclosure to the tribunal,” unless the confidentiality rule (Rule 1.6) of Bus. & Prof. Code section 6068(e) prohibits it. That could cause someone to walk a gossamer thin tightrope—with unpleasant consequences on either side: breach an obligation to the tribunal vs. breach client confidentiality. Nice!

Rule 4.1 now prohibits false statements to third parties, including failure to disclose material facts. That certainly ups the ante in negotiation. Rule 4.3 addresses communication with an unrepresented person and the obligation not to say or imply that the lawyer is disinterested. Rule 8.4 lists 6 specific kinds of “misconduct” that could give rise to discipline. Rule 8.4.1 prohibits discrimination, harassment or retaliation, subjecting a lawyer to discipline straightaway. Current Rule 2-400(C) mandates that some tribunal other than the State Bar must first determine that unlawful discrimination has occurred before the State Bar can even begin an investigation. The Board directed publication of an alternative version of Rule 8.4.1 that keeps that provision.

Bob Dylan was right after all. “For the times they are a-changin’!”

You want to have your say? Where do you find the proposed rules? Go to calbar.ca.gov, type in Rules Revision 2014. Read them on-line or print a set; look at the Commission material if you’re so inclined. Comment as you wish; the instructions are there. When, however, the final version goes to the Supreme Court in March 2017—or worse, when the Court promulgates the new standards that will rule our lives for a long time—we can’t say we weren’t asked for our opinion in the process.

-- Edward McIntyre

**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.**