California Bar Journal
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Confidentially speaking
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Should California adopt the ABA Model Rules of Professional Conduct? Law practice has become nationwide in scope, and some believe the time is ripe for California to adopt the model rules.   A uniform ethics code would conform appropriate practice throughout the country, and could improve the administration of justice in a number of ways.    

Practice efficiency would increase where lawyers did not have to research and conform to multiple ethics codes. Courts could require, and expect, the same ethical practice from all lawyers. Teaching legal ethics would be far easier than at present, and lawyers would better retain uniform rules that were consistently reinforced. A uniform standard would also help pave the way for reciprocal, or national, admission of lawyers. 

If all this sounds too frighteningly federalist, don’t worry! A national, uniform ethics code for lawyers is not about to happen soon. Although every state except California has adopted some form of the current ABA Model Rules (or the predecessor ABA Disciplinary Rules), variations in disciplinary standards abound from state to state. Each state stamps its own brand upon local ethics rules, in large part as a proud display of state sovereignty over the practice of law. No state can be expected relinquish that sovereignty lightly.

David M.M. BellHowever, as many believe that a national, uniform ethics code is manifest destiny, there is increasing interest in getting California on board with the ABA rules. Califor-nia’s adoption of the model rules is necessary to, and would clearly facilitate, a national standard. But will it ever happen? 

Speaking confidentially, I don’t think so. Why? Because of the profound differences between California and the ABA regarding a lawyer’s ethical duty of confidentiality. Without going into the arcane and gritty details, the ABA rules allow a lawyer to disclose client confidences to a much greater extent than the California rules. Heretofore, California has considered and expressly rejected many grounds for disclosure that are found in the current ABA rules. 

California and ABA confidentiality standards are expected to diverge even further in the future.  Currently, the ABA Ethics 2000 Commission is revising the ABA rules, and is proposing a substantial expansion of the grounds for disclosure of confidential client information.

Public comment submitted by the California State Bar and the California ethics community shows that at present California is committed to preserving client confidentiality to a degree that conflicts with both the current and proposed revised ABA confidentiality standards.

The California and ABA confidentiality standards reflect a fundamental divergence in view.  While both sets of rules are intended to effectuate the fair administration of justice, the California rules are designed to preserve and promote the sanctity of the lawyer-client relationship, while the ABA rules are designed to preserve and protect the judicial and legal process against client subterfuge.

Both sets of rules balance these noble objectives, but the balance falls differently, resulting in divergent standards. Reasonable minds can disagree on which set of rules best achieves the proper and fair administration of justice.

If the disclosure expansions proposed by the Ethics 2000 Commission are adopted by the ABA, I believe that California will become even less inclined to adopt the ABA Model Rules. California’s strict confidentiality standards have been examined, debated and challenged actively over the past 20 years, but have remained essentially unchanged.

As such, I do not see California loosening its confidentiality standards in the near future, either on its own accord or in response to ABA overtures.  

In my opinion, California should not change its well-thought-out confidentiality standards without serious and substantial consideration. While relaxed confidentiality standards may better protect the justice system against client subterfuge, relaxed standards will erode the sanctity and effectiveness of the lawyer-client relationship. California should not jettison its principled position on client confidentiality merely to achieve national uniformity.

Ethics expert David M.M. Bell, now in private practice, formerly ran the State Bar’s Ethics Hotline. He may be reached at