A new set of professional rules
Heavy burden on lawyers that will restrict court access
By Randall Difuntorum
“If you want to make enemies, try to change something.” President
Woodrow T. Wilson
|
Difuntorum |
President Wilson’s sentiment certainly rings true, but an optimist might
say that a thoughtful and circumspect approach to change attracts friends of
progress and reform. The State Bar’s proposed changes to the California
Rules of Professional Conduct include a proposal to adopt the format and rule
numbering system of the American Bar Association’s Model Rules of Professional
Conduct (Model Rules). California’s current rule format has been in place
since 1989. While I don’t oppose this change, it is a critical proposal
that should be adopted only after due consideration of certain key questions.
Will it work?
The Model Rules format and numbering system is a style commonly used for restatements.
This restatement format lends itself to long explications of the black letter
law and generous annotations of cases and other authorities. In contrast, the
current California rule format and style reflects the rules’ primary
function as lawyer disciplinary standards. It is more akin to a “Penal
Code” than a treatise. California has the largest lawyer discipline system
in the country. Its smooth functioning greatly depends on the ability of the
State Bar Court judge, trial counsel and respondents’ counsel to be on
the same page, both figuratively and literally, when interpreting the rules.
Will the interpretative comments of a longer rule book assist the process or
invite litigation of new issues?
Form over substance?
California lawyers and courts often consult the Model Rules for guidance even
when California has its own on-point rules and ethics opinions. Is this a problem?
Might this tendency be exacerbated by adopting the Model Rules format? The
answer to both questions probably is yes. California historically has taken
a different approach to certain areas of attorney professional responsibility,
for example, with respect to confidentiality and conflicts of interest. The
difference can be subtle but material. A rule number and title identical to
a Model Rule counterpart makes it easier to overlook these important differences.
California substance dressed in Model Rule clothing might be a trap for an
unwary lawyer.
Is it broken?
I do not doubt that the current California rules review will result in much
needed updates in areas of professional responsibility affected by new technologies
and other changes in law practice. For example, revising California’s
advertising rules along the lines of the Model Rules to specifically address
concerns engendered by the Internet will assist both lawyers and clients.
Would
the same be true if the format and numbering system of California’s rules
were changed? Is the topical organization of California’s rules deficient
compared to the Model Rules format? It is a challenge to keep pace with new
developments in professional responsibility and the efforts of the State Bar
through its Ethics Hotline, Annual Ethics Symposium and published advisory
ethics opinions have well served many California lawyers by familiarizing them
with the current rules. If overhauling the format won’t necessarily improve
the rules’ accessibility, should lawyers be burdened with learning a
new format? The public protection that comes with compliance will only be achieved
if the rules format is not, itself, an obstacle.
The progress and reform to be gained in updating the rules deserves attention
and support. Most importantly, all of the proposed changes, including adoption
of the Model Rules format, should be evaluated with eyes wide open about possible
unintended consequences.
Public Comment - Proposed Revisions to the California Rules of Professional Conduct
• Randall Difuntorum is the State Bar of California’s Director
of Professional Competence and serves as staff counsel to the State Bar’s
Commission for the Revision of the Rules of Professional Conduct.
|