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Law Practice,
Ethics/Professional Responsibility

Oct. 17, 2018

16 things to know about California’s new Rules of Professional Conduct

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Run through some quick facts about the new ethics rules.


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NEW RULES OF PROFESSIONAL CONDUCT

At one point, being called a "shyster" was one of the more stinging insults for an attorney. It suggests a certain type of professionally unscrupulous lawyer; the sort who has no need for rules. Unfortunately for them, California's highest court didn't listen. Instead, it overhauled the Rules of Professional Conduct, giving us the first major change since before the Berlin Wall fell.

This article discusses 16 things you should know before Nov. 1 rolls around and the new rules kick in. In all, the Supreme Court approved 27 new rules and (as modified) 42 others (with mostly minor, non-substantive changes). The rules also got a facelift, switching out dashes for periods: Instead of "Rule 1-100," it's now "Rule 1.0."

First, it seems that the court really wants lawyers to be competent. It moved "Competence" to Rule 1.1, placing it front and center, and adding that you cannot perform legal services with "gross recklessness." Diligence also has its own rule now (Rule 1.3), which requires lawyers to act with "commitment and dedication to the interests of the client," noting that you're barred from neglecting, disregarding, or unduly delaying matters. While not deeply substantive changes, these new rules reflect the court's focus on protecting the public from shoddy lawyering.

Second, there are two more factors under Rule 5.1 for determining whether fees are unconscionable: Failure to disclosure material facts, and engaging in fraud or overreaching in negotiating fees. The rule also allows both for true retainers that ensure a lawyer's availability, and flat, fixed fees for services. Rule 1.5.1 later clarifies that before fees can be divided among lawyers, the client must consent in writing and be told about the division of fees, which parties will receive them, and the terms of the division, at the time of signing (or as soon as is practical).

Third, under Rule 1.8.2, lawyers cannot use confidential information to disadvantage a client without the client's written consent. Unsurprisingly, doing so without their consent violates the duty of loyalty. Even more unsurprisingly, this was one of several reasons why Barry Zuckercorn (played by Henry Winkler) was fired as George Bluth Sr.'s attorney in "Arrested Development."

Fourth, Rule 1.8.3 adds that a lawyer cannot prepare an instrument or will for a client that gives the lawyer, or a someone related to the lawyer, a substantial gift unless the recipient is related to the client or the client has sought the advice of another independent lawyer.

Fifth, Rule 1.8.5 carves out an exception for indigent clients, allowing lawyers to pay the costs for protecting the interests of an indigent client, including costs for prosecuting or defending an action. The rule offers a broader definition of "costs" by noting that they are not limited to what is recoverable under statutes or rules of court, but can include reasonable litigation expenses, including court costs and other reasonable expenses for legal services.

Sixth, Rule 1.8.7 specifies that you need a client's informed written consent in criminal cases for guilty or nolo contendere pleas.

Seventh, one of the more controversial additions to the rules, Rule 1.8.10, prohibits sexual relations with clients unless they are a spouse or registered domestic partner, or unless there was a preexisting sexual relationship. This is a sharp departure from the current rule that focuses on eradicating quid pro quo arrangements, coercion, or incompetence resulting from sex with clients.

Eighth, Rule 1.15 requires advance fee deposits to be deposited into a client trust account in California, not just advance costs.

Ninth, Rule 1.18 clarifies that a lawyer owes a duty of confidentiality to prospective clients.

Tenth, in another generic statement of the duties of lawyers, Rule 2.1 notes that lawyers must exercise independent professional judgment and give candid advice to clients. Again, similar to other changes, this is not a departure from the current rules; rather, it is just a clarification.

Eleventh, under Rule 3.2, lawyers cannot do something that has no substantial purpose other than to delay or cause needless expense. The court failed to list the "dumping thousands of children's letters to Santa on the judge's bench" exception, but short of needing a second miracle on 34th street, it seems unlikely to be needed.

Twelfth, under Rule 3.9, a lawyer who represents a client before a legislative body or administrative agency about a nonadjudicative matter must disclose that they're present in a representative capacity (though they do not have to reveal their client's identity).

Thirteenth, Rule 4.1 states explicitly that while representing a client, a lawyer cannot knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when it is necessary to avoid assisting a criminal or fraudulent act by a client (unless disclosure is prohibited under Business and Professions Code 6068(e)(1)).

Fourteenth, Rules 5.1, 5.2 and 5.3 establish that lawyers have a duty to supervise subordinates (who themselves must also comply with the rules). The court's original comment was simply: Watch "Better Call Saul," see how Saul Goodman runs his firm, and do the opposite.

Fifteenth, the court cleaned up the current rules about solicitation and advertising, adding Rules 7.1, 7.2, ,7.3, 7.4 and 7.5, which set out more comprehensive guidance for information about legal services. The rules remain mostly the same, but are organized more coherently.

Sixteenth, Rule 8.4.1 expands the scope of the prohibition on discrimination, harassment, and retaliation that is currently in Rule 2-400. It also removes the current pre-adjudication requirement.

This is not, of course, an exhaustive list of things you should know about the new Rules of Professional Conduct, but simply a starting point. Among the strictest in the nation, California's rules are designed to maintain the integrity of the profession and the protection of the public. As a result, they are complex. But the new rules offer simplicity and clarity; besides laying out how to regulate lawyers, they also offer excellent guidance. All attorneys practicing in California should (and must eventually) take heed.

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