Board okays rules on conflict of interest, buying a law firm

The State Bar Board of Governors last month conditionally adopted the final batch of new or amended Rules of Professional Conduct based on the ABA’s Model Rules, which include controversial measures related to conflicts of interest, purchase and sale of a legal practice and attorneys acting as advocates in nonadjudicative proceedings. A final vote will occur after all public comment is received.

Acting on recommendations of the Special Commission for the Revision of the Rules of Professional Conduct, which has been working on the rules for eight years, the board adopted 11 rules and rejected five others. That brings to 68 the number of new or amended rules and represents the most comprehensive evaluation since 1989 of the regulations governing lawyer discipline in California. Public comment is invited until June 15. Randall Difuntorum, director of the State Bar’s professional competence office, says the full complement of rules is expected to go before the board again in July and then, unless further public comment is required, will be sent to the California Supreme Court for approval.

The board rejected Rule 6.1, which states that lawyers have a professional responsibility to perform 50 hours of pro bono services. Opponents argued that the board of governors already has approved such a resolution and that it doesn’t make sense to make such a non-mandatory recommendation a part of the rules of discipline.

The board adopted three rules — 1.18, 1.10 and 1.11 — dealing with a lawyer’s conflict of interest affecting an entire firm. It took the view that while the concept of imputation — attaching responsibility for acts of one lawyer to other lawyers in a firm because of a particular past relationship — was valid and should be adopted, erecting a so-called ethical wall or screen around that lawyer to rebut the idea of a conflict for the whole firm should be left to case law and not be included in the rule.

Rule 1.10 is the general rule dealing with conflicts for lawyers at private firms. Rule 1.11 is the counterpart for Rule 1.10 that applies to government lawyers entering or leaving private practice. Both imputation and screening were stricken from 1.11 regarding lawyers entering government practice. Rule 1.18 deals with duties a lawyer owes to prospective clients who consult with the lawyer.

Other rules approved by the board include Rule 1.17, the sale and purchase of an entire law practice or a sale and purchase of a substantive field of practice or a geographic area of practice. The version approved by the board adds more client protections. Also approved was Rule 3.9, which regulates a lawyer’s conduct as a client advocate in such nonadjudicative proceedings as legislative or administrative hearings. Some aspects of the rule were modified from the ABA Model Rule in order to distinguish nonadjudicative proceedings from true judicial proceedings.

The commission will hold a hearing June 10 in Los Angeles to take testimony on the rules, which can be found at www.calbar.org/proposedrules.