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Revised Rules of Professional Conduct--Are You Ready?

Posted By Administration, Wednesday, October 10, 2018
  Guest Message By

Alison Buchanan
Chair, Business Litigation

 

It is my pleasure to guest author this month’s President’s Message.

It is finally fall, and change is in the air.  Kids are back in school, the leaves are changing, and the holidays are right around the corner.

One big change this fall, as you are (hopefully) aware, is the impending implementation of the revised Rules that govern the professional conduct of all California lawyers.  On May 10, 2018, the California Supreme Court approved the new Rules by Administrative Order 2018-05-09.  In less than a month, on November 1, the revised Rules of Professional Conduct become effective. 

What are the Rules and Why Should You Care?

The Rules of Professional Conduct govern the conduct of every California lawyer (referred to in the Rules as “members”).  Both the current and revised Rules regulate professional conduct of lawyers through discipline.  The Rules aim “to protect the public, the courts, and the legal profession; protect the integrity of the legal system; and promote the administration of justice and confidence in the legal profession.”  (See Rule 1.0).  While the Rules establish a basis for discipline and are not intended to be a basis for civil liability, “a lawyer’s violation of a rule may be evidence of breach of a lawyer’s fiduciary or other substantive legal duty in a non-disciplinary context.”  (See Comment 1 to Rule 1.0).

Structural and Substantive Changes to the Rules of Professional Conduct

The current revisions to the California Rules of Professional Conduct have a long and interesting history, dating back to the early 2000s.  Significant amounts of time and effort went into developing these new Rules.  After two full rounds of revisions, the California Supreme Court has approved the revised set to become effective November 1.

The revised Rules look very different, having transitioned to the ABA Model Rules numbering and organizational structure.  For some rules, the numbering change is the only change and we retain our unique California approach (like our new Rule 1.6 on confidentiality, which now shares the ABA number only and keeps California’s very strict approach to confidentiality).

On the other hand, many Rules have changed substantively, too, adopting the ABA approach (like the Rule relating to sex with clients).  And still other Rules are brand new to the California Rules, where before only case law provided guidance (for example, Rule 4.4, which essentially adopts the rule for handling inadvertent disclosures, previously addressed by Rico v. Mitsubishi Motors (2007) 42 Cal.4th 807).

CLE and Other Opportunities to Familiarize Yourself with the New Rules

First, do not worry.  While it may feel daunting that the Rules that subject lawyers to discipline are changing, you’re closer to being ready than you think you are.  Odds are, if you’re a practicing lawyer, at some point you took and passed the MPRE (Multistate Professional Responsibility Exam).  The MPRE is based on the ABA’s Model Rules so, even if it was years ago, there was a time when you were familiar with the organizational structure of ABA Model Rules.  You can do it again.

Second, don’t try to wing it, as there are some specific and nuanced changes that could create traps for the unwary.  Fortunately, there are many resources and opportunities available to lawyers who want formal instruction on the new Rules.  The SCCBA is offering two different opportunities to learn the new Rules.

John Steele and I will be presenting a two and a half hour “deep dive” into the New Rules on October 25


Then, I’ll spend the ethics hour of the Women Lawyers upcoming 3-in-1 on November 7 giving a shorter “crash course” on the new Rules.  You may even want to attend both.

Of course, there are many other opportunities to learn the new Rules, including State Bar sponsored programming in both Los Angeles and San Francisco.  Countless of us in the legal ethics community have written articles on the new Rules, most of which can be found online.  Spend some time browsing those articles to get acquainted with the new Rules.

Finally, there is no substitute for spending the time to read through the Rules, even if just once.  There is no better time of year than now to get cozy by the fire with a complete set of the revised Rules (available on the State Bar’s website) and a nice warm cup of cocoa.

You are your own keeper when it comes to learning the new Rules.  Ignorance will not be an effective defense to State Bar charges.  Take some time now to familiarize yourself, while there are plenty of opportunities to do so.  You (and your clients) will be glad you did.

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