The California Supreme Court yesterday approved a significant overhaul of California’s legal ethics rules, moving California’s rules closer to the structure of the ABA’s Model Rules for the first time. The Court’s Order approved 27 rules as submitted last year by the State Bar’s Commission for the Revision of the Rules of Professional Conduct, 42 rules as revised by the Court, and denied approval of one proposed rule (regarding a lawyer’s obligations representing a client with diminished capacity). The revised rules, effective November 1, 2018, change the numbering and format of California’s rules. Substantively, the revised rules relate to personal relationships with clients, conflicts imputed through a law firm, attorney advertising, and attorney’s fees, and represent a years-long effort to simplify and to update the rules that govern California lawyers.
California Attorney Ethics in Practice
California Supreme Court Approves Major Revisions to Ethics Rules
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.
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
Tweeting Your Way Afoul of Attorney Advertising Rules
In Formal Opinion 2012-186, California’s Standing Committee on Professional Responsibility and Conduct addresses when and how attorney’s posts on social media may constitute attorney advertising within the requirements of California’s Rules of Professional Conduct and related governing statutes. In general, a social media post by an attorney falls within the professional responsibility rules and standards for attorney advertising if the post is a “communication” within Rule 1-400 or “advertising by electronic media” under Article 9.5 of the State Bar Act. In this context, a post that conveys information “concerning availability for professional employment” of an attorney is a “communication” within Rule 1-400 and must comply with the restrictions of Rule 1-400(D). Among other things, “a communication must not be untrue or misleading (Rule 1-400(D)(1), (2) & (3)), must disclose that it is a communication (Rule 1-400(D)(4)), and must not be transmitted in a coercive or intrusive manner (Rule 1-400(D)(5)).” That rule also includes detailed Standards expressed in a non-exclusive list of 15 types of communications that are presumptive violations.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
When is an Attorney’s Blog Considered Advertising under Legal Ethics Rules?
The Standing Committee on Professional Responsibility of the State Bar of California earlier this year issued a detailed advisory Opinion regarding when an attorney’s blog should be subject to the advertising requirements of the Rules of Professional Conduct and the State Bar Act.
Formal Opinion Interim 12-0006 provides that attorney blogs are subject to attorney advertising rules if the blog expresses availability for professional employment, or if the blog is part of the law firm’s professional website. By contrast, a non-legal blog by an attorney is not necessarily subject to the advertising rules just because it is written by an attorney, or just because it links to an attorney’s professional website. The Opinion first analyzes whether attorney blogs are a “communication” under Rule 1-400(A), a three-part test: (1) is the message is made by or on behalf of a California attorney?; (2) is the message concerns the attorney’s availability for professional employment?; and (3) is the message is directed to former, present, or prospective client(s)? The Opinion concludes that all attorney blogs meet parts 1 and 3 of this test, so the relevant issue is whether the blog post concerns “the availability for professional employment” of the attorney or the attorney’s firm.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.