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.
Should Non-Attorneys Be Permitted to Practice (Some) Law?
Attorneys and bar associations nationwide are grappling with a few hard truths about the current practice of law. The legal profession is a highly regulated profession, including strict requirements for any person to be authorized to practice law. Among other things, you have to go to law school (mostly) and take and pass the bar exam for any particular jurisdiction, or otherwise be admitted after a detailed moral and character review. This regulation is designed in part to ensure that the public is protected from unscrupulous counsel, who could prey on the most vulnerable among us at the times they are most vulnerable. Unfortunately, this high level of attorney regulation also may have the effect of limiting meaningful access to lawyers for a vast swath of the public who could benefit from counsel. Is the high level of regulation for attorneys, intended to protect the general public, appropriate if it means that the vast majority of the general public could never afford a lawyer?More
California Courts Giveth Pro Hac Vice Admission. . .and Taketh Away
An emerging trend suggests that California courts are becoming more strict in enforcing the technical rules for pro hac vice admission, and more restrictive in granting pro hac vice admissions for non-California attorneys who repeatedly appear here. The California Bar has long been known as relatively strict about practicing law in California: it has no reciprocity with any other state bar, and the definition of “practicing law” in California can be read to include virtually anything beyond a short flight layover. Recent examples provide some anecdotal evidence that California courts now are becoming more strict about pro hac vice admissions.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
Can a California Attorney Advise Clients Regarding Medical Marijuana?
The Bar Association of San Francisco in June issued Opinion 2015-1, asserting that a California attorney may ethically represent a California client regarding a medical marijuana dispensary and related matters, providing that the attorney advises the client of potential liability under federal law and is aware of the attorney’s own risks under federal law.
The Opinion illustrates a hypothetical in which an attorney receives a client inquiry for advice related to opening a medical marijuana dispensary, including negotiating a lease, getting financing, permits, licenses, and similar issues. This hypothetical details what the Opinion asserts is a unique ethical quandary for California attorneys: advising a client related to a matter that is permitted under state law, but illegal under federal law; and advising a client in a context where the advice itself could be considering aiding and abetting violation of federal law.
By way of background, the Opinion notes that growing, selling, or possessing marijuana is still illegal under federal law, as is aiding and abetting a violation of federal marijuana laws. Although the federal government has stated that enforcement of the federal marijuana laws is not a priority as to individuals who are in compliance with state medical-marijuana laws, the violation is still a crime and may be subject to attorney disciplinary enforcement. The Opinion also notes that federal law here does not preempt state law, because California law does not make legal what federal law prohibits. Rather, California law now provides that the possession, sale, and cultivation of medial marijuana will not be prosecuted by the state, if a doctor has recommended its use for a serious medical condition.
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.