CBJ - April 2010 #04. Ethics rules get a rewrite.

California Bar Journal

2010.

CBJ - April 2010 #04.

Ethics rules get a rewrite

The California LawyerApril 2010Ethics rules get a rewriteWhile the California Rules of Professional Conduct may not provide the most scintillating reading, they form the basis of good attorney behavior and every member of the State Bar is bound by them. Would-be lawyers must pass a professional responsibility exam, separate from the bar exam, to be admitted to practice. Violations can lead to trouble with judges, other lawyers and clients, as well as discipline by the State Bar. An entire body of legal practice is devoted to interpreting, enforcing and defending the rules.

Eight years ago, the Commission for the Revision of the Rules of Professional Conduct embarked on the herculean task of revising and updating the rules, a project that hadn't been undertaken for two decades.

The end product presents a multitude of substantive changes to both existing law and public policy and addresses issues as varied as conflicts of interest, legal fees, confidentiality, terminating representation, publicity, advertising, handling client money and sex with clients.

California is the only state that does not pattern its rules on the American Bar Association's Model Rules of Professional Conduct, but the commission now recommends adoption of the Model Rules format, numbering system and, in many instances, the substantive standard.

In part, this is because the panel was charged with trying to eliminate unnecessary and potentially confusing differences between California and other states and to foster the evolution of a national standard with respect to professional responsibility issues. "Our charge was to review the law of lawyering and to remove any unnecessary differences between the model rules and local rules," said Kevin Mohr, a consultant to the commission and ethics instructor at California Western School of Law. Where the model rules departed from California's standards (for example, confidentiality exceptions are much more limited in California), the commission recommends not pursuing the ABA rules, Mohr said.

While some proposals appear benign, others have attracted widespread attention. The duty of confidentiality, for example, seems always to draw controversy - and did again. Replacing the word "party" with "person" in the longstanding rule prohibiting improper contacts with another lawyer's client drew fierce opposition from prosecutors and criminal defense lawyers alike. Some rules, including sex with a client and conflicts of interest, were sent back to the commission by the board of governors for further work. Nine model rules were considered and rejected.

The commission is now seeking public comment on its final product - 69 proposed new and amended rules. "This is a chance for people to actually have a say," said Mohr. "There might be areas of practice where people will feel a particular impact and they need to look at these rules."

In particular, he cited a new rule governing lawyer conduct in non-adjudicative proceedings, such as local boards of supervisors or school boards; a comprehensive definition of the type of client information protected by lawyer-client confidentiality; rules that govern lawyers who act as third-party neutrals; and an express statement in advertising rules that cover real-time electronic communications. The commission also recommends the adoption of a multi-rule approach to conflicts of interest, rather than the current single-rule approach.

The proposals...