Current and Timely Information and Analysis About
California Attorney Ethics in Practice

Professionalism and Civility.

Your Ethical Duties to Plan for Law Practice Succession

Unlike some states, California does not have specific legal ethics rules that require attorneys to adopt a law practice succession plan, there are several Rules of Professional Conduct that impose equivalent duties to plan.  It’s not always easy to think about circumstances that could render you unable to continue practicing law–accidents, illness, disability, planned or unplanned retirement, or untimely death– but these events do occur.  Under any of these circumstances, your clients’ interests, as well as your own, must be protected.

Every California has a duty of competence under CRPC Rule 3-110, which means that you have an obligation to take reasonable steps to ensure that client matters will not be neglected in the event of death or disability.  Unexpected events could have serious impacts on your clients.  Important client matters, such as court dates, statutes of limitations, or document filings, could be neglected if you fail to plan for these contingencies.  California attorneys have a separate duty to keep clients informed of significant developments, under CRPC Rule 3-500.  This rule has been interpreted to impose duties on attorneys to advise clients regarding change of employment, and generally also implies a duty to plan for client communications in the event of your death or incapacity.  You also have a fiduciary duty and duty of loyalty to your clients, which means you must protect your clients’ interests in various contingent circumstances, including your death or incapacity.   CRPC Rule 3-700, related to termination of employment, provides an analogous scenario.  That rules requires attorneys to take reasonable steps to avoid reasonably foreseeable prejudice to client related situation in which they will no longer be able to represent client.

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Tracking Proposed Revisions to California’s Rules of Professional Responsibility

California’s Commission for the Revision of the Rules of Professional Responsibility has proposed 68 new and amended rules for attorneys, and is seeking public comment on the  proposed rules.  California is the only state that whose professional responsibility rules do not track the ABA Model Rules.  The Commission has issued an Executive Summary detailing the proposed and amended rules, comments, and dissenting views.  The Commission also issued a detailed list of rule revisions considered, but rejected.  Among other things, the proposed rules include suggested revisions to rules related to personal relationships with clients, conflicts imputed through a law firm, attorney’s fees, and handling clients with diminished capacity.  The public comment period expires September 27.

Negotiating for Your Clients: How Far is Too Far?

California attorneys have a well-established duty to be zealous advocates for their clients’ interests.  But the boundaries for that zealous advocacy are not always clear. The California Rules of Professional Conduct do not contain a rule analogous to ABA Model Rule 4.1 and related comments, addressing the boundaries of acceptable puffery, which is ok, and false representations of material fact, which (surprise!) are not.  Formal Opinion No. 2015-014 from California’s Standing Committee on Professional Responsibility and Conduct appears intended to fill this gap, and more clearly to define the boundary between zealous advocacy and, well, lying.  In general, the analysis mirrors 4.1, so puffery and posturing is permissible, but false statements of fact, or implicit misrepresentations of material facts, are not.  The opinion details five examples to illustrate this distinction.More

5 Reasons to Seek Independent Outside Ethics Counsel

Attorneys tend to view ethics compliance as something very personal, and firms correctly views ethics issues as an internal matter.  Attorneys would not hesitate to engage outside counsel if a legal malpractice claim arose, but many do not yet have dedicated outside ethics counsel to advise as part of ongoing daily firm operations.  Increasingly, there are compelling reasons for attorneys and firms to engage outside independent ethics counsel, as a confidential resource in the event that an ethical issue arises, to advise on ethics compliance systems, and to help prevent ethics problems.More

Can You Make Ethics Compliance a Competitive Advantage?

Among the people who think about the future of law practice and of lawyers, there is a developing recognition that ethics compliance can be a powerful competitive advantage in practice. Most lawyers view ethics compliance as a necessary (it is about as necessary as it gets) part of practicing law, but would you characterize ethics as potential competitive advantage for a law firm?

Well, you should. Ethics compliance, more specifically the demonstrated commitment to the practice of law at the highest ethical standards, is good business for law firms. This hardly needs explaining: if you hold yourself to high ethical standards, you will be better at what you do, more careful, and less likely to become engaged in distracting and potentially career-threatening ethical disputes and controversies. Beyond this, however, ethics compliance can be a unique point of distinction, a source of strong and coherent firm culture, an empowering identity for members of the firm, and a powerful symbol to clients that you are fair and wise, and exercise good judgment.  Isn’t that what you are selling as a lawyer?More

Is Your Law Practice Due for a Legal Ethics Audit?

As a practicing lawyer, you may have missed an emerging consensus on something that affects your practice every day: your firm should regularly conduct a detailed ethics audit.

The changing legal landscape has created its own ethics challenges. Technology has made it easier for boutique firms to exist, and to compete against large firms. But large firms typically have dedicated in-house attorneys—and significant resources—focused on compliance with ethics rules. These costs are spread over hundreds or thousands of lawyers. If not properly managed, ethics compliance can become a competitive disadvantage for small and mid-sized firms.

For practicing attorneys, the legal world is changing rapidly. Understanding and properly applying the ethics rules is increasingly important. Some have even suggested that it will be a critical way to establish a competitive advantage as the future of law unfolds.
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