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MCLE Self-Assessment Test

Finally, ethics rules head to high court

After nine years of debate, the State Bar adopted 67 proposed ethics rules to govern California lawyers’ professional conduct. The rules require Supreme Court approval before taking effect, and although the court is free to reject or return any of the proposals for further work, they offer a behavioral roadmap for attorneys and provide clear guidance in particular areas that have been confusing or controversial, and result in discipline for those who ignore them.

Although a rules revision commission was appointed to bring California’s rules in line with the ABA Model Rules, the state — in fact the only state whose rules are not patterned after the Model Rules — will continue to differ in 12 key areas, four involving fees. The rules were last revised in 1987, and since beginning its work, the commission has held seven public hearings, sought public response to its recommendations six times and received 530 written comments. Even as the final deadline loomed last month, the group sent out seven final rules for one last round of public input.

Ethics guru Kevin Mohr, a professor at Western State School of Law who served as the group’s consultant, last month gave an idea of what it’s been like to be on the commission: “I see a lot of old friends who aren’t treating me like old friends.” He said his colleagues are not happy they have to learn new rules, but they haven’t really stopped talking to him. They just give him a sarcastic “thanks a lot” when they see him. “Most people recognize it’s time for California to move in the direction of other states” while maintaining important differences. The rules, though, Mohr said, “are really pretty simple and straightforward and relatively logical — I emphasize relatively.”

Mohr called working on the commission “pretty much a full-time second job” for nine years. One irony is the people who wrote the rules and agreed to be on the commission are “passionate” about ethics and “are the folks who don’t need rules . . . It’s a highly intelligent group of people. Everyone respected everyone else’s intelligence.”

The rules can be divided into two categories: those that were changed to mirror more closely the ABA Model Rules, and those that remain distinctly Californian.

The first category includes rules that address lawyer advertising/solicitation; supervision of lawyer and nonlawyer subordinates; sexual relations with clients; aggregate settlements; limited legal service programs; trial publicity; and dealings with represented and unrepresented persons.

The areas that are substantially different from the Model Rules include the bar’s rejection of the so-called “snitch” rule and retention of California standards governing client secrets, unconscionable fees, competence and moral turpitude.

1. The snitch rule: Model Rule 8.3 requires a lawyer to report certain misconduct committed by another lawyer, as long as the lawyer does not disclose information otherwise protected under the duty of confidentiality. The current California rules have no such requirement and the rules adopted by the board of governors will continue the status quo. Attorneys will not become their brother’s keeper.

2. Client secrets: As proposed, Rule 1.6 would retain California’s approach of favoring strict confidentiality. Currently, the only exception, in both statute and bar rules, permits a lawyer to reveal information reasonably necessary to prevent a criminal act likely to result in death or substantial bodily harm. The Model Rules take a broader approach and include additional exceptions to prevent or mitigate financial harm. The rules commission rejected the financial harm exceptions and the bar board agreed.

3. Unconscionable fees: Only California and Texas prohibit fees using standards that are different from the Model Rules. California uses an “unconscionable fee” standard and Texas uses a “clearly excessive fee” standard to determine whether to impose discipline based on the fee charged or collected by a lawyer. Nearly every other jurisdiction has adopted the Model Rule’s “reasonable fee” standard for charging or collecting a fee. Proposed rule 1.5 leaves in place the unconscionability standard.

4. Competence: The Model Rule broadly states that a lawyer shall provide competent representation to a client. The current California rule has a more precise formulation that subjects a lawyer to discipline only if incompetent conduct is reckless, repeated or intentional. The key difference is possible disciplinary exposure for single acts of simple negligence. Under the Model Rule language this is possible, but under the California rule, more egregious conduct must be shown. Proposed rule 1.1 retains the current California approach, largely in recognition of the fact that a civil malpractice action is a more appropriate forum for redressing a lawyer’s single acts of simple negligence.

5. Moral turpitude lives on: Proposed Rule 8.4 retains “moral turpitude” which historically has extended well beyond “matters of personal morality,” and encompasses the concepts of “violence, dishonesty, breach of trust, or serious interference with the administration of justice” that the Model Rule seeks to regulate. The Model Rules abandoned moral turpitude more than 25 years ago.