State Bar calls for comments on overhauled rules
By Laura Ernde
Staff Writer
The ethical rules for lawyers in California are getting an
overhaul and now is your chance to weigh in.
The State Bar is seeking public comment through
Sept. 27 on proposed new and amended Rules of Professional Conduct. The 90-day
public comment period is one step in the process in the State Bar’s development
of the updated rules, which will ultimately be submitted to the California
Supreme Court for approval by the end of March 2017.
“Updating the rules that guide attorney conduct is an important
part of holding the legal profession to high ethical standards. I urge members
of the public, attorneys and bar associations to make their voices heard in
this important process,” State Bar President David J. Pasternak said. “I’m
grateful to the commission and State Bar staff for all their hard work on a
project that is vital to the bar’s public protection mission.”
Here is a sampling of some of the more notable proposed changes:
- 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.”
- A new rule that gives guidance on when conflicts of interest are imputed
within a law firm.
- A new rule enhancing public protection by prohibiting lawyers from
charging a “nonrefundable fee” except for a true retainer and generally
requiring that advanced fees be held in trust.
- A new rule spelling out a lawyer’s ethical duties in representing
a client with diminished capacity.
Attorneys who violate the Rules of Professional Conduct are
subject to discipline from the State Bar. The rules guide the legal profession
and protect the public from misconduct. Last year alone, the State Bar
processed nearly 16,000
complaints of violations of these and other rules.
The current
rules have been in effect since 1987. The 68 proposed
new and amended rules being released for public comment are the result of a series of public meetings held by the Commission
for the Revision of the Rules of Professional Conduct and chaired by Justice Lee Edmon of the 2nd District Court
of Appeal. The Board
of Trustees, at the direction of the Supreme Court,
appointed the commission in November 2014 to study the rules and make
recommendations.
More information about the rules, along with instructions for
commenting, is available on the State Bar website.
Comments may also be submitted on rules that were considered but not
recommended for adoption by the commission. On July 26, the State Bar will take
in-person testimony at the State Bar’s San Francisco and Los Angeles offices.
California is the only state whose professional
conduct rules for lawyers are not adapted from the American Bar Association
Model Rules. Although the ABA rules may provide guidance, the Supreme Court
urged the commission to keep the rules as a set of minimum disciplinary
standards, avoiding rules that are purely aspirational standards.
In addition to the 68 rules being circulated for
public comment, the board and the commission earlier sought public comment on rule
amendments requiring prosecutors to disclose
exculpatory evidence. The proposed amended rules
5-110 and 5-220 could come back to the board for approval as
soon as September and be sent to the Supreme Court before the other rule changes.