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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.