For almost a decade, the Rules Revision Commission of the State Bar Board of Governors has been busy working the California Rules of Professional.[1] In November 2009, The California State Bar’s Board of Governors approved nearly three dozen new or amended professional conduct rules. These thirty-five rule revisions deal with issues ranging from attorney’s fees to lawyers serving as third-party neutrals.[2] Many view this as a key step on the road toward updating the state’s standards governing attorney conduct.
“This approval is a first step towards finalizing a much needed process,” states Alan M. Insul, “The result of the Rules Revision Commission’s work is something every California lawyer will need to review and address in their practice.”[3] Although the Board of Governors approved the rule revisions in November 2009, they won’t take affect for quite a while.[4] At the present time, these rules are under public comment until March 12.
The proposed rules and accompanying comments were part of the first group of recommendations presented to the board of governors for its consideration. None of the rules will go into effect, however, until after the public comment period – and unless and until they are approved by the California Supreme Court. In fact, the public is invited to speak at a March 11 public hearing in Los Angeles on proposed changes to the California Rules of Professional Conduct, which govern all lawyers in the state.
One major reason for the changes – the revisions are an attempt to harmonize California’s ethical rules with the ABA’s Model Rules. California is the only state in the country that does not follow the American Bar Association’s Model Rules of Professional Conduct in some form or another. These Model Rules form the bases of many states professional rules of conduct.
Indeed, the new California rules will even follow the numbering of the ABA ‘s Model Rules – this may take some time for California lawyers to adjust to.[5] For example, Rule 3-110 used to detail Failing to Act Competently. Just like the ABA numbering system, the rule on competence will now be California Rule of Professional Conduct 1.1.
Some of the Important Rule Revisions:
Require an attorney serving as a third-party neutral to explain the difference between an advocate and third-party neutral to someone unlikely to be aware of the distinction[6]
Retain California’s current standard prohibiting, for disciplinary purposes, an “unconscionable fee.” The commission had been considering adopting the ABA’s standard that prohibits an “unreasonable fee.”[7]
Follow the ABA Model Rule that expands ex parte communication to include all represented “persons.” The current rule applies only to a represented “party.”[8]
State that a lawyer shall not intentionally, recklessly, or repeatedly; fail to perform legal services with competence[9]
After the public comment deadline terminates on March 12, the 35 rule revisions will then be voted on by the State Supreme Court. The Supreme Court has the ultimate authority to then amend or drop the rule revisions. So stay tuned California attorneys, you are about to practice under an entirely new ethical regime.
According to State Bar President Howard Miller, “The work is now moving along … and the timetable on the rules revision calls for completion of the redrafting and renumbering during the summer of 2010 and then submitting the rules to the California Supreme Court, which has final authority for their adoption.”
For more information from the State Bar of California on the 35 rule revisions click here. And if you need a little extra help with the rule revisions 35 Revisions to the Rules of Professional Conduct is an excellent resource.
[1] The Rules of Professional Conduct of the State Bar of California are attorney conduct rules the violation of which will subject an attorney to discipline. Pursuant to statute, rule amendment proposals may be formulated by the State Bar for submission to the Supreme Court of California for approval. The State Bar has assigned a special commission to conduct a thorough study of the rules and to recommend comprehensive amendments.
[2] For a complete discussion of the history of the amendments, please see The Discussion Draft to the Proposed Rules of Professional Conduct of the State Bar of California
http://calbar.ca.gov/calbar/pdfs/public-comment/2009/Revision-Rules-Professional-Conduct-12-Rules_01-11-10.pdf
[3] According to Free Press Release Alan M. Insul is a Los Angeles-area lawyer who limits his practice to the areas of corporate, business, and real estate.
http://www.free-press-release.com/news-thirty-five-changes-to-rules-of-professional-conduct-approved-1263463964.html
[4] http://www.abanet.org/cpr/cali.pdf
[5] However, the specific conflicts rules included together in Model Rule 1.8 are assigned separate numbers in the proposed California rules.
[6] See proposed Rule 2.4.
[7] See proposed Rule 1.5.
[8] See proposed Rule 4.2.
[9] The rule defines “competence” in any legal service as applying the diligence, learning, skill, and mental, emotional, and physical ability reasonably necessary for the performance of such service. See proposed Rule 1.1.
