California Bar Journal
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California should adopt ABA Model Rules
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The recently appointed Commission for the Revision of the Rules of Professional Conduct will soon decide whether California should pattern its Rules of Professional Conduct after the ABA's Model Rules of Professional Conduct [the Model Rules], or whether California should continue to go its own way with a unique set of professional responsibility rules. I believe that it is very important that California adopt the Model Rules, with appropriate changes where California has strong reasons for variations from the ABA model. 

The ABA has just adopted a substantial set of amendments to the Model Rules, based on recommendations by its Ethics 2000 Commission and input from bar associations throughout the country. California's bar associations worked closely together and presented a united California perspective on the revisions.

California should not adopt all of the details of the ABA Model Rules.  However, it should adopt the Model Rule format, with appropriate modifications to reflect important differences in California's attorney conduct rules.

There are a number of reasons why California should align its rules of conduct much more closely with the ABA Model Rules. The practice of law in California has strong ties to the practice of law in the rest of the United States, where the Model Rules are the dominant source of professional standards. There are only a handful of states that have not adopted the Model Rules (with appropriate modifications), and the number of such states is rapidly dwindling. 

Many California lawyers practice in multistate law firms, where they frequently work on interstate or out-of-state matters, and their non-California colleagues are usually subject to a version of the Model Rules.  In addition, a very large number of California lawyers regularly do work in other states where they may be subject to the Model Rules. Further-more, many non-California lawyers legitimately do work where they may be subject to the California rules. It is difficult and cumbersome to keep track of two sets of rules and to determine which set applies in a particular context. In contrast, if California has substantially the same rules as other states, these problems are minimized.

Having a set of rules with a different format is confusing both to California lawyers and to non-California lawyers. For California lawyers, it is confusing to find the applicable rule when the lawyer is working on a matter (whether inside or outside of California) where another state's professional responsibility rule applies.  Equally, it is confusing to a non- California lawyer who is working on a matter for which the California rules apply. Because of the different format, it is difficult to find the appropriate applicable rule: a similar format would permit both California and non-California lawyers to find the applicable rules easily.

There is no question that the current California Rules of Professional Conduct have important differences from the Model Rules and these differences should be preserved in adopting the ABA format. For the most part, a different California policy can be articulated by modifying the appropriate Model Rule.

However, California should not modify an ABA Model Rule solely because we think that we can draft the rule better. For each such modification we should ask, "does this modification reflect an important issue on which California thinks differently from the ABA?" Unless we have an affirmative answer to that question, we should adopt the text of the ABA model.

There are some ABA Model Rules for which there is no California counterpart, because California has strong policy reasons for declining to adopt them. For example, California has no rule corresponding to Rule 8.3(a), which requires an attorney to report to the disciplinary authorities any non-confidential information that another attorney has violated a rule that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer. In this circumstance, California should simply decline to adopt the rule.

There are other ABA Model Rules for which California has no counterpart simply because California has not gotten around to adopting such a rule. For example, California case law has adopted Rule 1.10, even though it is not articulated in a California rule. In these circumstances, California should adopt the ABA versions, with suitable amendments if we have strong policy grounds for making modifications.

In conclusion, it is time for California to steer a course on attorney professional conduct rules closer to the United States mainstream. By following the foregoing suggestions, California can accomplish this while preserving the important differences between the California rules and the ABA Model Rules. The interconnection between law practice in California and the rest of the United States increasingly requires that we take less of a different course on professional responsibility. We can do this while still preserving important differences in California policy. The Commission for the Revision of the Rules of Professional Conduct should adopt these proposals and point us in the right direction.

Judge Samuel Bufford, a federal bankruptcy judge in Los Angeles, is a member of the California coordinating committee on the ABA's Ethics 2000 commission and chair of the Ethics 2000 liaison committee of the Los Angeles County Bar Association.