Thursday, October 4, 2018
New ethics rules for California lawyers will go into effect on November 1. This is the largest reform California has undertaken in 29 years. It brings the state rules in line with the ABA Model Rules.
Driving forces behind the rules were the interest in increased consumer protection and a desire for consistency nationwide. A total of 69 rules will be added or amended. Among the changes to the new rules are:
- A rule forbidding attorney-client sex unless there was a preexisting relationship, which broadens lawyers’ restrictions.
- Changes that make conflict of interests rules broader.
- No rule on lawyers’ duties when advising clients with diminished capacities. This was requested by the trusts and estates section of the California Lawyers Association (the nonprofit trade association recently spun off from the state bar), but the California Supreme Court did not approve it.
- The duties of a lawyer when advising clients on breaking the law - an attorney may not counsel to engage in or assist a client on committing a crime (Rule 1.2.1).
- Commentary that provides guidance to attorneys advising clients on federal and trial law conflicts - likely needed for advising clients in the legalized marijuana industry.
- A rule that prohibits harassment, discrimination, and retaliation by attorneys, or permits any of the forgoing. This rule gives the responsibility to lawyers to police the behaviors of lawyers and personnel in their own firm. This allows the state Bar to open an independent investigation without a finding by any outside agency. This rule was very controversial, as it was when the ABA adopted it. To date it remains under scrutiny in many states with twenty-one adopting it or having one similar, and nine declining. Fourteen other states are studying whether to adopt it. (Rule 8.4.1).