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 SDCBA members.


Proposed Ethics Rules: Speak Now Or Forever Hold Your Peace

There are impending major ethics rules changes, which you can influence.  The Commission for the Revision of the Rules of Professional Conduct of the State Bar of California (the “Rules Commission”) has been progressing down the path it was charged to blaze.  The last day for public comment on proposed revisions is June 16, 2015, which is fast approaching.  If you care to propose a revision, please refer to http://www.calbar.ca.gov/AboutUs/PublicComment/201507.aspx.

Recently, on May 29 and 30, the Rules Commission held a meeting to discuss proposed revisions.  One such proposal is whether to adopt a rule – on an expedited basis – concerning the special responsibilities of a prosecutor, fashioned after the American Bar Association’s Model Rule 3.8, which details such suggested responsibilities.  This was prompted by a request from the CA Supreme Court, which was followed by a good deal of additional support seeking to formalize the constitutional obligations of prosecutors.  Based on those requests the working group recommended that an expedited review be conducted on whether to adopt such a rule here in California.

There are other proposed rules – some based on or similar to the ABA Model Rules ‑ which some may want the Rules Commission to consider.  For example, one possibility is amending Rule 2-100 of the CA Rules of Professional Conduct (“RPC”), which prohibits ex parte communications with a “party” represented by another lawyer, to bring it in line with ABA Model Rule 4.2, which more broadly applies to “persons” who are represented.  Another possibility is the adjustment of the proscription against “illegal or unconscionable” fees dictated by RPC 4-200 to apply simply to “unreasonable” fees, as prescribed by ABA Model Rule 1.5(a).  Additionally, one might suggest the Rules Commission consider the conflict created by the incorporation of California’s exceptionally broad duty of confidentiality in RPC 3-100, which could be mitigated by permitting a lawyer to disclose confidential information in order to correct a false statement to a tribunal as called for by ABA Model Rule 3.3(c).

There is no intention to advocate for or against any of these examples or to argue that one side of an argument is better.  These examples – and the manner in which they are presented – are intended only to demonstrate the types of suggestions you could present to the Rules Commission.

Given the examples, however, and the impact such changes may have on the practice of law in California, it is worth speaking up while you have the opportunity.  Silence now may leave you scratching your head later when the changes are implemented, potentially to your dissatisfaction.

- Robert Marasco

**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.**