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.