New ethics rules affect you

By Mark L. Tuft

Tuft

There are times when lawyers facing an ethics issue will examine the California rules and wonder what the purpose of a particular rule is and how it applies. Now is an opportune time to evaluate the thinking behind the professional conduct rules for California lawyers and participate in the rule making process. The State Bar Rules Revision Commission has been reviewing the California rules and developing proposed amendments. Thirteen proposed rules were recently released for a 90-day public comment period that will end June 6. The proposed rules can be found at calbar.ca.gov. 

This batch includes some of the most important rules that go to the core of lawyer conduct, including rules regulating fees for legal services, conflicts of interest among current clients, business transactions with clients, representing organizations, terminating representation, the purchase and sale of a law practice, communications with persons represented by counsel and avoiding interference with a lawyer’s professional independence. There are plenty of issues in the proposed amendments to warrant the attention of lawyers, bar organizations and the public. 

A little background may help explain why some of these rules may be controversial. The last comprehensive review of the rules occurred in 1989 with some further revisions in 1992. When that project began, many states were in the process of replacing the ABA Model Code with the Model Rules. California decided in 1975 it would not follow the structure of the Model Code mainly because the code did not lend itself to easy reference and enforcement. The code’s “disciplinary rules” or “DRs” were a set of minimum standards of conduct that lawyers must adhere to under threat of discipline. The DRs were grouped by nine axiomatic norms or “canons” and were preceded by “ethical considerations” (“ECs”) that were intended to preserve the larger field of professional responsibility. California’s 1975 rules were based in large part on the code’s “DRs” with the ABA numbering system but without the “canons” and the “ECs.”

The Model Rules were developed in 1983 as a result of dissatisfaction with the Model Code approach. The Model Rules contain black letter rules in a restatement-style format with explanatory comments. Instead of a code of minimum standards intended to serve as a disciplinary floor, the Model Rules are intended to reflect the core of the law governing lawyers. A large majority of the states adopted a version of the Model Rules in place of the Model Code. 

By the late 1980s, bar membership in California had nearly tripled since the 1975 rules were adopted and complaints against lawyers had risen sharply. A large backlog of cases drew legislative and media attention that eventually led to the creation of the current disciplinary system. The California rules were substantially revised in 1989 as a result of these developments and in response to the 1983 Model Rules. The rules were reordered and renumbered and added an official “discussion.” The ABA’s restatement approach was rejected in favor of keeping a set of minimum standards to regulate lawyer conduct through discipline. Thus, the current rules are not exclusive and lawyers are bound by other law, including the State Bar Act and court decisions. Lawyers are told to consult rules and ethics opinions of other jurisdictions for guidance on proper professional conduct not expressly covered by California’s rules. 

A good deal has happened since the last full-scale review that justifies taking a fresh look at the structure and scope of the California rules. The ABA made extensive revisions to the Model Rules in 2002 in light of developments in the law and the legal profession. In doing so, the ABA retained the restatement-style format. Important amendments to the Model Rules relating to multi-jurisdictional practice, confidentiality and entity representation were added in 2003. Most states have adopted a version of the revised Model Rules while others are on their way to doing so. California is the only state that currently employs the “DR” approach originating from the outdated Model Code. 

Since the adoption of the current rules, the law governing lawyers has become increasingly complex. The legal profession is experiencing a rapidly changing environment. These changes include the expansion of economic markets and client activities, increasing lawyer mobility and consolidation of law practice, more in-house lawyers and cross-border practice, technology and greater public scrutiny of lawyers. These developments have led rule drafters to strive for greater consistency in codes that regulate lawyer conduct. Today, most California lawyers are familiar with the Model Rules. Since the 1980s, persons seeking admission to the California bar have had to pass the Multistate Professional Responsibility Examination which is based solely on the Model Rules. Court decisions and ethics opinions often cite to the Model Rules, particularly where the California rules do not provide guidance. 

The rules revision commission has recommended the adoption of the Model Rule restatement-style format and rule numbering system. Yet, there are many apparent as well as subtle differences in the proposed rules from the comparable Model Rules. In some instances, the rule retains the minimum standard rather than the professional norm. One issue is whether this approach will enhance compliance or confuse lawyers more. Comments on this and other issues are encouraged.

• Mark L. Tuft is a partner with Cooper White & Cooper LLP in San Francisco and a vice chair of the State Bar Commission on the Revision of the Rules of Professional Conduct.