The Coming New Rules of Professional Conduct
What is Different and What Does it Mean?
The Rules of Professional Conduct are changing and frankly, it is about time. California was one of the few states with its own set of rules and its own numbering system, making it difficult for an attorney from another state to comply with our Rules. As the practice of law becomes more national, and borders are broken down between states and countries for bar exam reciprocity and licensure, the Commission for the Revision of the Rules of Professional Conduct knew they had to have a set of uniform Rules. This means our rule numbering will change. For example, our old rule on competence – Rule 3-110, will now be 1.1, like the ABA Rules. Generally, however, the rules will follow the same logical glide path as before, from the beginning issue of competence to withdrawal and other issues.
What is new about the new rules? Here are some highlights. First, there will be some dramatic changes to the trust accounting Rule 4-100. Don’t shoot the messenger readers, but all advance fees will now have to be put in the trust account. I fought that, because it is easier to not have to deal with trust accounting on advance fees. My belief that if a lawyer will steal, they will take from a trust account or a general office account.
I lost that battle. Flat fees too have to be put in the trust account unless the lawyer puts in the fee agreement some language as to its refundability. The language is spelled out in the proposed rule, and it is not onerous.
Sex with clients? Sorry folks. In the past you could have a sexual relationship with a client as long as it did not involve duress (what better way to meet people, as one lawyer friend said to me in jest), but it will now be something the lawyer will have to wait for until the end of the representation. In light of the recent sexual harassment scandals, I think we made a good call on this, because a clear rule actually protects lawyers from false allegations of duress.
We will also have a new rule on candor to the tribunal that reads a lot like ABA Rule 3.3. The proposed rule follows our case law on the revelation of client confidences to the court in criminal and civil cases but it shows that we value honesty and gives a clear path to lawyers on what they need to do if their client wants to perjure himself. This was true of the other proposed rules; they simply codify existing law. The Commission for the Revision of the Rules of Professional Conduct was not a body that could create law; the California Supreme Court has the ultimate authority to govern lawyers. This is clear from the new rule for prosecutors, Rule 3.8. We had hoped it would be stronger in making prosecutors comply with their ethical obligations but it seems to merely codify existing Brady disclosure law.
Last, there will be a new set of advertising rules. In the past, we had one long rule on advertising and solicitation that essentially encompassed the idea that advertising cannot be false and misleading. However, it also contained a set of standards that created a presumption of a violation of the rule if the lawyer advertised in a way set forth in a standard. We eliminated those standards, ultimately deciding that they chilled lawyer advertising in an age where AVVO and the like are trying to eat our lunch.
The set of rules will be longer, as we provided more comments so the lawyer has ease of interpretation.
I was on the Commission, and we worked for three years on this effort, weekly telephone conferences, and many meetings here and in Los Angeles; hours and days of research and writing. I sincerely hope the lawyers of Contra Costa County like what we have done, and if not “like,” at least can live with the new rules. We don’t know yet when they will be all approved, but we are hoping this March.