Proposed State Bar Ethics Rules

Ethics/Professional Responsibility

Competence and (introducing) diligence (Rules 1.1 & 1.3)

If the Supreme Court accepts the bar’s recommendation, for the first time, California will have a diligence rule. And remember: Diligence and competence are not the same thing. By Richard Zitrin

Ethics/Professional Responsibility

Communication of settlement offers (Rule 1.4.1)

Proposed Rule of Professional Conduct Rule 1.4.1 narrows the types of settlement offers that a lawyer is required to promptly communicate to clients in criminal matters, but maintains the mandatory communication of all written settlement offers to a client in civil matters. By Jason E. Fellner and Tarah Powell-Chen

Ethics/Professional Responsibility

Confidential information of a client (Rule 1.6)

Proposed Rule 1.6's black-letter rule, which largely mirrors current Rule 3-100, does not propose to add any of the Model Rules exceptions or any other new exception. By Wendy Chang

Ethics/Professional Responsibility

Lawyer as third-party neutral (Rule 2.4)

The California State Bar, in submitting proposed Rule 2.4, noted the importance of adopting a new disciplinary standard that imposes duties on lawyers when acting in a “quasi-judicial” capacity. By Neil J Wertlieb

Ethics/Professional Responsibility

Fairness to opposing party and counsel (Rule 3.4)

Many of the concepts in proposed Rule 3.4 should be recognizable to California lawyers, but the rule also introduces some new concepts. By David M. Majchrzak

Ethics/Professional Responsibility

Trial publicity (Rule 3.6)

The California State Bar has proposed amendments to the trial publicity rule, including renaming it as California Rule of Professional Conduct 3.6 to mirror ABA Rule 3.6 ever more closely. By Vince Parrett

Ethics/Professional Responsibility

Communication with a represented person (Rule 4.2)

Proposed Rule 4.2 is largely a repeat of Rule 2-100, but there are both changes and comments to the proposed rule that provide some guidance to lawyers on the more vexing questions about the “no contact” rule.

Ethics/Professional Responsibility

Unauthorized practice of law; multijurisdictional practice of law (Rule 5.5)

In 2002, the American Bar Association introduced amendments to Model Rule 5.5, governing unauthorized practice, to permit lawyers to practice in jurisdictions other than ones to which they are admitted. The Rules Revision Committee has now proposed to the California Supreme Court the adoption of a version of ABA Model Rule 5.5. By Ellen Pansky

Ethics/Professional Responsibility

Candor toward the tribunal (Rule 3.3)

Rule 3.3 is one of the few proposed rules to discard the comparable current iteration of the rule, Rule 5-200. By Jennifer A. Becker

Ethics/Professional Responsibility

Safekeeping funds and property of clients and other persons (Rule 1.15)

Proposed Rule 1.15 would make significant changes to current Rule 4-100 governing client trust accounts. These changes have not been without debate. By Dan Stanford and Ray Ryan

Ethics/Professional Responsibility

Duties to prospective client (Rule 1.18)

Under the new rule, an attorney is prohibited from using or revealing confidential information learned as a result of the consultation. By Michael A. Sall

Ethics/Professional Responsibility

Misconduct (Rule 8.4)

In case lawyers were under the misapprehension that any form of deceit, dishonesty, unlawful conduct, or other improper behavior was permissible in any way, proposed Rule 8.4 is designed to put those mistaken beliefs to rest. By Megan Zavieh

Ethics/Professional Responsibility

Fee divisions among lawyers (Rule 1.5.1)

Rule 1.5.1 does not change the basic California rule that a pure referral fee is permissible, subject to the preconditions of the rule. However, there are three significant differences. By Wendy Chang

Ethics/Professional Responsibility

Prohibited discrimination,harassment and retaliation (Rule 8.4.1)

Rule 8.4.1 will be a truly effective disciplinary deterrent to discriminatory conduct in the legal profession in California. By Karen Valentia Clopton

Ethics/Professional Responsibility

Communication with clients (Rule 1.4)

Proposed Rule 1.4, which the State Bar of California recently sent to the Supreme Court, maintains the concepts of Rule 3-500. By David M. Majchrzak

Ethics/Professional Responsibility

Sexual relations with current client (Rule 1.8.10)

The Rules Revision Commission overwhelmingly voted to recommend to the California Supreme Court a proposed new rule that will bring California's "sex with clients" rule more in line with the rule in most other jurisdictions. By Daniel E. Eaton

Ethics/Professional Responsibility

Clients with diminished capacity (Rule 1.14)

All attorneys who represent clients who have diminished capacity, whether because of minority, mental impairment or some other reason, will want to closely follow the progress of this rule through the Supreme Court. By Heather L. Rosing

Ethics/Professional Responsibility

Organization as client (Rule 1.13)

Both Rule 3-600 and Rule 1.13 make clear that, in representing an organization, it is the organization itself — and not its directors, officers, employees or other constituents — that is the client of the lawyer. By Neil J. Wertlieb

Ethics/Professional Responsibility

Supervisory duties (Rules 5.1, 5.2, 5.3)

Prudent lawyers who manage or supervise other lawyers or non-lawyers would be well advised to provide education for all office personnel on what the rules and the State Bar Act require. By David C. Carr

Ethics/Professional Responsibility

Truthfulness in statements to others (Rule 4.1)

Proposed Rule 4.1, if adopted, will be a new disciplinary rule for which there is no current analog in California's Rules of Professional Conduct. By Suzanne Burke Spencer

Ethics/Professional Responsibility

Contact with judges, officials, employees and jurors (Rule 3.5)

Unlike its direct counterpart in the ABA Model Rules, new proposed Rule 3.5 contains more language spelling out the communications with others involved in the decision-making process that are prohibited for a lawyer connected with a case. By Charles E. Slyngstad

Ethics/Professional Responsibility

Financial and similar arrangements with nonlawyers (Rule 5.4)

This proposed rule consolidates three current rules: Rule 1-310 (Forming a Partnership With a Non-lawyer), Rule 1-320 (Financial Arrangements With Non-Lawyers) and Rule 1-600 (Legal Service Programs). By Tad A. Devlin and Elina Protich

Ethics/Professional Responsibility

Duties concerning inadvertently transmitted writings (Rule 4.4)

The proposed rule does not materially alter existing law in California, but will add, if adopted, a new disciplinary rule to specifically address ethical duties that previously were defined only in case law. By Robert K. Sall

Ethics/Professional Responsibility

Fees for legal services (Rule 1.5)

The Rules Revision Commission has decided to keep the 83-year-old unconscionable fee standard for describing a prohibited fee and therefore retain the disciplinary function of the rule. By Lorraine M. Walsh

Ethics/Professional Responsibility

Gifts from client (Rule 1.8.3)

Proposed Rule 1.8.3 removes ambiguities in the current rule dealing with gifts from clients. By Ray Ryan