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Second commission to be appointed for attorney ethics rules revision

The California Supreme Court has asked the State Bar to appoint a second commission to complete the difficult task of revising attorney ethical rules.

A previous rules revision commission spent nearly 10 years on a proposal that called for the 45 existing rules to be replaced with 67 new rules. But when it came time for the Supreme Court to review the proposal, the process became too unwieldy, State Bar CEO Joseph Dunn said in an Aug. 11 letter to the court.

 “Among the fundamental problems is the lack of information bar staff has at its disposal that would allow it to fully advise the court of the reasoning underlying the State Bar Board’s approval of the rules, prepared by a special committee more than 10 years ago, and of the rules themselves,” the letter said.

On Sept. 19, the court granted the bar’s request to return the 17 revised rules back to the bar so all the proposed rules could be reconsidered. The court called for a new commission to be appointed by Nov. 26 and for it to finish its work by March 31, 2017.

“The court wishes to express its deep appreciation and gratitude to the State Bar Board of Trustees, staff and members of the first commission for the years of hard work they dedicated to this difficult project,” Court Administrator Frank A. McGuire wrote.

McGuire’s letter said the second commission should start with the current rules and focus on revisions that are needed to adapt to changes in the law or “eliminate, where possible, any unnecessary differences between California’s rules and those used by a preponderance of the states.”

California is the only state whose professional conduct rules are not adapted from the American Bar Association Model Rules. While the ABA rules may provide guidance, the court urged the commission to keep the rules as a set of minimum disciplinary standards, avoiding rules that are purely aspirational and limiting the use of comments.

The last comprehensive revision of the California rules occurred in 1987. You can find the current rules on the bar’s website.

Meanwhile, a separate effort to review the discipline standards that govern attorneys is also nearing completion.

The Discipline Standards Task Force has been meeting since May to discuss proposed changes that would help the public and attorneys better understand what level of discipline can be expected based on the nature of the misconduct involved.

The task force will ask the Board of Trustees this month to seek public comment on proposed recommendations.