Legal Ethics

California approves major revision to attorney ethics rules, hewing closer to ABA Model Rules

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The Supreme Court of California has approved a series of changes to that state’s Rules of Professional Conduct that bring them closer to the ABA Model Rules of Professional Conduct.

A press release issued Friday from the high court says it approved the final rule from a series of changes that began in March 2017. It was the largest comprehensive set of rule changes in California in 29 years, the release notes.

The new rules take effect Nov. 1.

California has historically been the only state whose ethics rules for lawyers didn’t closely track the ABA Model Rules. This revision changes that, although the Recorder noted in an earlier article that the California rules are also heavily influenced by state law.

“It’s a major step forward. And it offers much greater consumer protection than what we currently have,” Mark Tuft, a San Francisco attorney who served on the state bar’s committee for the rule revisions, told the Recorder in May.

Dennis Rendleman, lead senior counsel for ethics for the ABA’s Center for Professional Responsibility, told the ABA Journal on Tuesday that the rule changes will benefit lawyers by making ethics rules consistent nationwide.

“The sense is that as a lawyer’s practice becomes more and more multi-jurisdictional, which everyone can see has been happening, it’s better for the rules to be consistent from state to state,” he says. “So the development in California, which of course is one of the largest economies in the country, is a positive development.”

The State Bar of California, a mandatory-membership regulatory agency for attorneys, asked the state Supreme Court to approve 69 new or amended rules. The court ultimately approved the rules, but modified 42 of those proposed. That includes Rule 1.2.1, on the duties of lawyers when advising clients on breaking the law, which the high court had sent back for revisions to its comments. Among other things, the approved commentary guides lawyers on advising clients on state laws that may conflict with federal or tribal laws—a likely reference to California’s legalized marijuana industry.

Among California’s new rules is a controversial one: Rule 8.4.1, prohibiting discrimination, harassment and retaliation by attorneys. It gives lawyers at law firms the responsibility to advocate for corrective action if they know of harassing or discriminatory conduct by the firm or its personnel. This permits the State Bar of California to open an investigation into the prohibited behavior without a finding from another agency. The rule was “the subject of intense debate during drafting,” the Recorder said.

As the American Lawyer noted in September, that rule tracks ABA Model Rule 8.4(g), which itself was controversial when the House of Delegates adopted it at the 2016 Annual Meeting.

The ABA Journal reported last year that several states have declined to adopt it and some attorneys believe it violates the First Amendment.

According to the Center for Professional Responsibility, as of mid-September, 20 states, including California, had a similar preexisting rule; Vermont has adopted it; nine states have declined to adopt it; and 14 are studying the issue.

Rendleman notes that some of the opposition has been political in nature.

Other changes the Recorder highlighted in May include:

  • A rule forbidding attorney-client sex unless there was a preexisting relationship, which broadens lawyers’ restrictions.
  • Changes that make conflict of interests rules broader.
  • No rule on lawyers’ duties when advising clients with diminished capacities. This was requested by the trusts and estates section of the California Lawyers Association (the nonprofit trade association recently spun off from the state bar), but the California Supreme Court did not approve it.
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