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From the President

Give your feedback on proposed new ethics rules

By David Pasternak
President, the State Bar of California

David PasternakWhen the State Bar was formed in 1927, one of the board's first official acts was to formulate the Rules of Professional Conduct. Today, we are once again reviewing and revising California's ethical rules for lawyers.

In his inaugural president’s message, published in the 1928 issue of the State Bar Journal, Joseph J. Webb explained that developing the first set of rules “has not been without difficulty,” citing as examples a rule requiring attorney disclosure of client perjury and a rule addressing “ambulance chasing” by plaintiff’s lawyers. The emphasis, however, of President Webb’s message was that the board was “desirous of securing the criticism by members of the bar of these rules …” President Webb also made a point to say that input from the public also was desired.

Fast-forward to 2016 and Webb’s words remain relevant. Under the leadership of California Court of Appeal Presiding Justice Lee Edmon and appointed by the Board of Trustees, the Second Commission for the Revision of the Rules of Professional Conduct is conducting a comprehensive review of the rules to ensure that they protect the public and promote confidence in the legal profession and the administration of justice. The last comprehensive revision occurred in 1989.

The commission’s starting place was the current rules and its focus is on revisions needed to address developments in the law and, where appropriate, eliminate differences between California’s rules and the rules in other states. In addition, the commission is guided by the principle that the historical purpose of the rules is to regulate the conduct of lawyers through a set of minimum disciplinary standards. Although the commission is considering the ABA Model Rules, it has been directed to avoid purely aspirational rules.

This is not an easy task. California is the only state that has not adopted a version of the ABA Model Rules. An ethical concept contained in a single California rule may be found across several Model rules (compare California’s one rule [Rule 1-400] on lawyer advertising and solicitation with the five rules found in the Model Rules [Rules 7.1 through 7.5]). The reverse is also true (compare the omnibus Model Rule on “misconduct” [Rule 8.4] with California’s discrete rules [Rules 1‑120, 2-400 and 5-200]).

To further complicate matters, California’s existing attorney discipline standards are not just found in the rules, but also in the State Bar Act and other code sections that subject an attorney to discipline. Some examples are arrangements for certain advanced fee payments (B&P 6242), electronic media advertising (B&P 6157 et. seq), moral turpitude (B&P 6106) and the duty of confidentiality (B&P 6068(e)). The commission must consider all these when studying potential rule amendments.

And let’s not forget that the subject matter of the rules are of great interest to various stakeholder groups. Sometimes the commission must try to strike a balance between two competing interests that seem equally worthy. One example is a rule amendment that might allow a lawyer to take unilateral steps to protect the financial interests of a client who succumbs to a significant mental impairment. Disabled rights advocates want to preserve the loyalty an attorney owes to a client while estate planning attorneys do not want to sit idly by as a helpless client is victimized. Often there is no approach that fully satisfies all concerns. The commission has drafted a proposed new rule, Rule 1.14, that would permit but not require a lawyer to take limited action to protect the interests of an impaired client. This rule and others drafted to date can be found at the commission’s web page.

The commission has proceeded at an incredibly quick pace and is on schedule to complete its initial report and recommendation this month, after which the Board of Trustees will seek formal public comment. If additional revisions are necessary, there will be time to solicit public comment again before submitting the rules the Supreme Court by the March 2017 deadline. 

Meanwhile, the Board of Trustees has agreed with the commission that one proposed rule change – governing the obligation of prosecutors to disclose exculpatory information to the defense – be handled on a separate track. The proposed rule has already garnered significant comment from prosecutors and defense attorneys and in May the board authorized an additional 45-day public comment period to solicit feedback on revisions.  

The need for input on the proposed rules is just as important now as it was in 1928. I urge members of the public, attorneys and bar associations to have their voices heard in this important process.