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State Bar set to implement Supreme Court approval of new ethics rule for prosecutors

The State Bar of California began its plan to implement the portions of a new ethics rule, Rule 5-110, regarding the responsibilities of criminal prosecutors that the California Supreme Court approved in an order on May 1. (Read the Court order.)

The new Rule 5-110 (“Special Responsibilities of a Prosecutor”) in the State Bar’s Rules of Professional Conduct adds new requirements, including a requirement that when a prosecutor “knows of clear and convincing evidence” establishing that a wrongful conviction occurred, the prosecutor must seek to remedy the conviction. The new provisions are similar to the provisions in American Bar Association Model Rule 3.8.

“In order to ensure public trust in the justice system and to protect the rights of defendants, prosecutors should be held to high ethical standards,” said State Bar President James P. Fox. Fox spent nearly three decades as the elected district attorney in San Mateo County.

The State Bar Board of Trustees voted to adopt this rule in October 2016 and advanced it to the Court for final approval.

The Court order approved most portions of the new Rule 5-110. The portions approved by the Court go into effect as of May 1, 2017, according to the order. The Court order sent a portion of Rule 5-110, regarding prosecutors’ ethical disclosure obligations, back to the State Bar’s Board of Trustees to consider alternative revisions. Current Rule 5-220 remains in force and prohibits all attorneys, including prosecutors, from suppressing any evidence that the attorney is required by law to reveal or produce.

The bar is determining a process and timeline for addressing the alternative revision from the Court. The Board of Trustees will likely consider the instructions in the order at its May 11-12 meeting. The board may consider referring the rule to its Commission for the Revision of the Rules of Professional Conduct, which was appointed for the purpose of assisting the board with any Court questions about the proposed rules.

The ethics rule update is part of a major overhaul of the Rules of Professional Conduct for the first time since the 1980s. The rules guide attorneys licensed in California. Attorneys who violate the rules are subject to discipline from the State Bar. In March the Bar’s Board of Trustees approved a package of rules, which are in the process of being considered by the California Supreme Court. Rules 5-110 and 5-220 were considered on an expedited basis in advance of other rules.

Highlights of the total package include:

  • Expansion of the ban on discrimination to allow the State Bar to open an investigation without a previous civil finding and to include express prohibitions on harassment and retaliation. The rule would also require an attorney facing discipline charges related to such misconduct to notify the federal and state agencies that enforce anti-discrimination laws.
  • A stricter rule against sex with clients, banning it unless there was a prior consensual relationship. The current rule prohibits sex as a quid pro quo for representation or if the lawyer employed “coercion, intimidation, or undue influence.”
  • Various rule changes to enhance competence and promote lawyer-client communication.
  • A requirement that advance fees must be held in trust and express prohibition of fees contingent on the outcome of a criminal case or the terms of a divorce.

Read more about the ethics rules update.