ANALYSIS: Rules 3.3, 4.1

NEW RULES OF PROFESSIONAL CONDUCT

From climate to Hollywood culture, California is unique in many ways. One of the distinctions we have carried for years, flying under the radar for everyone except lawyers, is the fact that we are the lone holdout state that has not yet adopted some version of the American Bar Association Model Rules of Professional Conduct. That is about to change. On Nov. 1, we will officially switch to a new version of ethics rules, some significantly different than what we have now. Some big changes include an expansion of relevant State Bar rules involving the duty of candor.

True, California already has rules and laws designed to punish lying lawyers. These consist of provisions in the State Bar Act, including California Business and Professions Code Sections 6068(d) and 6106, both of which give the State Bar the power to penalize lawyer dishonesty. But the current state bar rule of professional conduct dealing with dishonest lawyers imposes a duty of candor that is by its own terminology, is limited to the courtroom.

Lie to Me: Answer to the State Bar

This has been a warning from the bench to lawyers practicing in California courts for years; because current California Rule 5-200 addresses the duty of candor in the courtroom.

Labeled as "Trial Conduct," it states in pertinent part:

In presenting a matter to a tribunal, a member:

"(A) Shall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with truth;

"(B) Shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law;

"(C) Shall not intentionally misquote to a tribunal the language of a book, statute, or decision;

"(D) Shall not, knowing its invalidity, cite as authority a decision that has been overruled or a statute that has been repealed or declared unconstitutional."

New Rule 3.3, on the other hand, which takes effect Nov. 1, goes much farther. It states in paragraph (a) that a lawyer shall not:

"(1) knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

"(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or knowingly misquote to a tribunal the language of a book, statute, decision or other authority; or

"(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer, has offered material evidence, and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal, unless disclosure is prohibited by Business and Professions Code section 6068, subdivision (e) and rule 1.6. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false."

Paragraph (b) states that "A lawyer who represents a client in a proceeding before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures to the extent permitted by Business and Professions Code Section 6068, subdivision (e) and rule 1.6."

Where 5-200 by its terms only applies in a courtroom, 3.3 Comment [1] explains its reach is broader: "This rule governs the conduct of a lawyer in proceedings of a tribunal, including ancillary proceedings such as a deposition conducted pursuant to a tribunal's authority.

What constitutes a tribunal? According to new Rule 1.0.1(m), "Tribunal" means: "(i) a court, an arbitrator, an administrative law judge, or an administrative body acting in an adjudicative capacity and authorized to make a decision that can be binding on the parties involved; or (ii) a special master or other person to whom a court refers one or more issues and whose decision or recommendation can be binding on the parties if approved by the court."

Expanding Prohibitions on Dishonesty

Note also that California will be codifying more specifically the State Bar's jurisdiction over lies told by lawyers not just to judges, but to anyone. New Rule 4.1, which governs truthfulness in statements to others, reads as follows:

In the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Business and Professions Code Section 6068(e)(1) or Rule 1.6.

Comment [2] qualifies the types of statements that fall under this section. It explains in pertinent part, "This rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. For example, in negotiation, certain types of statements ordinarily are not taken as statements of material fact."

In addition to Rules 3.3 and 4.1, California will also receive new , defining professional misconduct. Regarding dishonesty that does not rise to the level of a criminal act, new Rule 8.4(c) includes within its definition of professional misconduct, engaging in conduct "involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation."

Legal Climate Change

The adoption of these rules in November will bring California more in line with the rest of the nation, at least in terms of our legal ethics rules. Because there will be so many changes, California lawyers are well advised to learn them now, in order to acclimate more easily, to ensure a smooth transition in November.