35 revisions of professional conduct rules win approval

After nine years of work by its Rules Revision Commission, the State Bar Board of Governors has approved 35 revisions of the California Rules of Professional Conduct on issues ranging from lawyers as third-party neutrals and fees to communication with a represented person and competence.

“Approving the first batch of new Rules of Professional Conduct is an important step towards finalizing the process,” said Michael Marcus, chair of the Discipline Oversight Committee. “All California lawyers owe a debt of gratitude to the Rules Revision Commission for its years of hard work.”

For easier reference, the numbering of all the new rules are being changed to conform to the numbering system and subject area of the ABA Model Rules of Professional Conduct.

At its November meeting, the Board of Governors approved rule revisions that:

• 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. (Rule 2.4)
• 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.” (Rule 1.5)
• Follow the ABA Model Rule that expands ex parte communication to include all represented “persons.” The current rule applies only to a represented “party.” (Rule 4.2)
• State that a lawyer shall not intentionally, recklessly or repeatedly fail to perform legal services with competence. 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. (Rule 1.1)

Proposed rules dealing with sex with a client and conflicts of interest were referred back to the commission for further work. Proposed rules on reporting the egregious behavior of another attorney and business transactions and adverse interests were tabled until the January meeting for further discussion.