The wait is over, California lawyers. The latest Rules of Professional Conduct have arrived.
After years of drafting—including one forced restart—and almost 14 months of review and rewriting by the California Supreme Court, the high court’s seven justices on Thursday released the first comprehensive changes to the rulebook in 29 years. The revised rules, based largely on ABA model rules with heavy seasoning by California laws, go into effect Nov. 1.
By the numbers: The court approved 27 amended rules as a state bar committee submitted them. Justices modified and authorized 42 more. And they rejected entirely one proposed rule on a lawyer’s obligations to clients “with diminished capacity.”
The ethical roadmap for California’s 250,000 attorneys covers 112 pages. It was approved by all seven justices.
With its hefty size, the revamped rulebook contains plenty of changes for lawyers to love, hate and debate. But two lawyers steeped in the drafting work gave the finished product generally high marks.
“The court did a good job and they did a careful job,” said Richard Zitrin, a legal malpractice and ethics specialist at San Francisco’s Zitrin Law Office. “But the court could have taken more of an affirmative role and done an even better job.”
Mark Tuft, a Cooper White & Cooper partner who served on the rules-writing committee, said the changes align California more closely with legal standards across the country. “It’s a major step forward. And it offers much greater consumer protection than what we currently have,” Tuft said.
Here are five things lawyers should know about the new rules.
➤➤ Conflict of interest rules are broader and less case-specific. For example, a new definition of what constitutes a legal “matter” covered by conflict disclosure and non-representation requirements is more expansive now. Tuft called the changes “much more conforming and much more inclusive” of how lawyers nationally understand conflicts of interest.
➤➤ Prohibitions on harassment, discrimination and retaliation by lawyers, both in the workplace and in the practice of law, have been expanded. The rule, the subject of intense debate during drafting, requires “all law firm lawyers the responsibility to advocate corrective action to address known harassing or discriminatory conduct by the firm or any of its lawyers or nonlawyer personnel.”
The state bar can now open an investigation into alleged harassment or discrimination without a triggering civil finding by another agency. Lawyers who receive a related disciplinary charge from the bar will be required to notify state and federal workplace-fairness agencies. “It’s frankly as broad as about any rule in the country,” Tuft said.
➤➤ The rules don’t specifically mention lawyers serving clients in the marijuana industry. The rules-writing committee sent the Supreme Court a proposed rule—Rule 1.2.1—that would allow lawyers to “discuss the legal consequences of any proposed course of conduct with a client” so long as they don’t counsel that client to break the law. Tuft said the high court sent the rule back about a month ago for more work on some accompanying comments but not the language of the rule itself. Tuft said the rule should be applicable to various topics, such as immigration, where federal and state laws conflict.
➤➤ In most cases, lawyers can’t sleep with their clients. This rule has received a lot of public attention. Currently, the rules bar lawyers from having sex with clients if the act is coerced or considered a form of payment for services rendered. The new rule forbids lawyer-client sex unless there was a previous consensual relationship.
➤➤ The court nixed a rule laying out a lawyer’s responsibilities in representing clients with “diminished capacities.” The justices did not explain the deletion, although they may have decided language dealing with client confidentiality and privacy may have stepped too far into the Legislature’s purview. The California Lawyers Association’s trusts and estates section had sought more clarity in the rules for attorneys practicing in this field.
We’ve posted the new rules below: