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A new set of professional rules

Giving California a seat at the national table of ethics

Heavy burden on lawyers that will restrict court access
By Randall Difuntorum

By Kevin Mohr

As makers of soft drinks and computer software have learned, people do not like change. In the case of the ABA Model Rules format, however, California should welcome the change. Nearly 20 years ago, when the current California Rules of Professional Conduct were adopted, there was little reason for California to adopt the Model Rules format. The states were then evenly divided between following the recently drafted Model Rules and the older ABA Code of Professional Responsibility.

Kevin Mohr

There was no pretense of a national legal ethics standard. With uniform codes and the technological advances in communications, however, law practice today has to a certain extent become national in character. Every state except California has either adopted some form of the Model Rules or its state bar has recommended their adoption. More important, California’s adoption of the Model Rules framework will help facilitate compliance with ethical standards and give California a stronger voice in the national ethics debate.

First, most states, including California, have adopted rules permitting multijurisdictional practice of law. In the coming years, California will see an increase in out-of-state lawyers practicing law in California, at least on a temporary basis. Similarly, California lawyers will find themselves providing legal services in other jurisdictions. The ethics rules of the state in which legal services are provided will usually control. Familiarity with a common code structure will enable lawyers to quickly ascertain any differences in standards between jurisdictions, ensuring better compliance with the host jurisdiction’s rules.

Second, to the extent California adopts the language of a particular Model Rule — and the commission reviewing California’s rules has been charged with “eliminate[ing] and avoid[ing] unnecessary differences between California and other states” in its rules — there will be a large body of case law and ethics opinions from other jurisdictions interpreting the language to which California lawyers could look to determine their responsibilities. Again, this will facilitate compliance with ethics standards.

Third, California’s case law and ethics opinions interpreting the rules will reach a wider audience. At present, the State Bar and four county bar organizations (Los Angeles, San Francisco, Orange and San Diego) regularly issue ethics opinions, but those opinions have limited appeal outside the state. Adoption of the Model Rule framework will give these opinions more relevance in other jurisdictions and will provide the state’s legal ethics community a more prominent seat at the table of the national ethics debate, permitting a more forceful and persuasive presentation of California’s client-centric approach to lawyer regulation.

Moreover, adoption of the Model Rules framework would not produce a jarring change in California. The organization is similar to that of the Restatements — black letter law followed by explanatory comments — a style with which all lawyers are familiar. Further, more than 100,000 lawyers have been admitted to the California Bar since 1988. All those lawyers were required to take the Multistate Professional Responsibility Exam (MPRE), which is based upon the Model Rules, and so are already familiar with the rules.

All this does not mean that California should adopt all the substantive standards of the Model Rules. California rightfully differs from the ABA rules and most other states in several areas, most notably with respect to the core duty of confidentiality, and those differences will remain. However, to ensure compliance with ethical standards in a changing legal profession and give California a stronger voice in the national ethics debate, it is time for California to adopt the Model Rules framework.

Public Comment - Proposed Revisions to the California Rules of Professional Conduct

Kevin Mohr is a professor at Western State University College of Law and a consultant to the State Bar’s Special Commission for the Revision of the Rules of Professional Conduct.

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