Supreme Court Approves First Comprehensive Revision to Attorney Rules of Professional Conduct in Twenty-Nine Years

SAN FRANCISCO–The Supreme Court of California today filed an order approving the first comprehensive amendments to the Rules of Professional Conduct of the State Bar of California in twenty-nine years. The court approved forty-two rules as modified by the court, twenty-seven rules as submitted by the State Bar, and denied approval of one rule.

The Board of Trustees of the State Bar of California submitted a request on March 30, 2017 for approval of seventy new or amended rules to the California Rules of Professional Conduct. (Bus. & Prof. Code, § 6076.)

Twenty-seven rules approved as submitted:

• Rule 1.1 Competence
• Rule 1.3 Diligence
• Rule 1.4.1 Communication of Settlement Offers
• Rule 1.4.2 Disclosure of Professional Liability
• Rule 1.5 Fees for Legal Services
• Rule 1.6 Confidential Information of Client
• Rule 1.8.2 Use of Current Client’s Information
• Rule 1.8.3 Gifts from Clients
• Rule 1.8.5 Payment of Personal or Business Expenses Incurred by or for a Client
• Rule 1.8.7 Aggregate Settlements
• Rule 1.8.8 Limiting Liability to Client
• Rule 1.8.10 Sexual Relations with Client
• Rule 1.8.11 Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9
• Rule 1.10 Imputation of Conflicts of Interest: General Rule
• Rule 2.1 Advisor
• Rule 2.4 Lawyer as Third-Party Neutral
• Rule 3.2 Delay of Litigation
• Rule 3.7 Lawyer as Witness
• Rule 3.8 Special Responsibilities of a Prosecutor
• Rule 3.9 Advocate in Nonadjudicative Proceedings
• Rule 4.1 Truthfulness in Statements to Others
• Rule 5.3.1 Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Member
• Rule 6.5 Limited Legal Services Programs
• Rule 7.1 Communications Concerning the Availability of Legal Services
• Rule 7.3 Solicitation of Clients
• Rule 7.4 Communication of Fields of Practice and Specialization
• Rule 7.5 Firm Names and Letterheads

Forty-two rules approved as modified by the court:

• Rule 1.0 Purpose and Function of the Rules of Professional Conduct — The court revises the citation in Comment [1] to conform to the California Style Guide. The court amends Comment [5].
• Rule 1.0.1 Terminology — The court revises the definition of “person” under paragraph (g-1). The court adds an asterisk after the term “person” or “person’s” in paragraphs (a), (e), (f), (m), and (n), after the term “writing” in paragraphs (e-1), after the term “firm” in paragraph (g) and (k), and after “screen” or “screening” in Comments [5] and [6].
• Rule 1.2 Scope of Representation and Allocation of Authority between Client and Lawyer — The court revises Comment [4] to conform to the California Style Guide.
• Rule 1.2.1 Assisting, Soliciting, or Inducing Violations — The court amends current rule 1-120 and adopts it as rule 1.2.1 pending the State Bar’s submission of additional revisions to proposed rule 1.2.1.
• Rule 1.4 Communication with Clients — The court removes an unnecessary comma from subparagraph (a)(1).
• Rule 1.5.1 Fee Divisions Among Lawyers — The court substitutes semicolons for commas at the end of each item in the list in subparagraph (a)(2).
• Rule 1.7 Conflict of Interest: Current Clients — The court deletes Comment [2], moves the definition of “matter” to the text of the rule as paragraph (e), and renumbers the subsequent Comments. The court deletes “or organization” and adds as asterisk next to “person” in Comment [1].
• Rule 1.8.1 Business Transactions with a Client and Pecuniary Interests Adverse to a Client — The court modifies paragraph (a) and makes additional revisions to the citations in Comments [1] and [4] to comply with the California Style Manual.
• Rule 1.8.6 Compensation from One Other Than Client — The court adds Comment [5].
• Rule 1.8.9 Purchasing Property at a Foreclosure or a Sale Subject to Judicial Review — The court adds paragraph (c) and a Comment.
• Rule 1.9 Duties to Former Clients — The court adds as asterisk next to “person’s” in paragraph (a) and “person” in subparagraph (b)(1). The court modifies citations in Comment [1] to comply with the California Style Manual and corrects internal citations in Comments [2] and [6].
• Rule 1.11 Special Conflicts of Interest for Former and Current Government Officials and Employees — The court amends an internal citation in Comment [2] and substitutes the words “personally prohibited from participating” in place of “disqualified” in Comment [7]. The court revises the citations in Comments [6] and [10] to comply with the California Style Manual.
• Rule 1.12 Former Judge, Arbitrator, Mediator, Or Other Third-Party Neutral — The court substitutes the phrase “seek employment from” for “participate in discussions regarding prospective employment with” where it appears in paragraph (b). The court deletes the asterisk after “third” in paragraph (b). The court adds the terms “personally and” before “substantially” in paragraph (b). The court substitutes the words “personally prohibited from participating” in place of “disqualified” in Comment [3].
• Rule 1.13 Organization as Client — The court adds the term “resignation,” before “or withdrawal” in paragraph (e).
• Rule 1.15 Safekeeping Funds and Property of Clients and Other Persons — The court corrects copyediting errors in paragraph (a) and Standard (1)(a)(i) through (iii), and (1)(b)(i) through (ii). The court adds an asterisk after “person” in Standard (1)(a)(i), (ii) and (iv). The court revises the citation in Comment [1] to comply with the California Style Manual.
• Rule 1.16 Declining Or Terminating Representation — The court adds an asterisk after “person” in subparagraph (a)(1) and after “tribunal’s” in Comment [4].
• Rule 1.17 Sale of a Law Practice — The court corrects an error at the end of the second sentence of Comment [2].
• Rule 1.18 Duties to Prospective Clients — The court adds an asterisk after “person’s” in Comment [1]. The court deletes an unnecessary comma in Comment [2] and revises the citation in Comment [4] to comply with the California Style Manual.
• Rule 2.4.1 Lawyer as Temporary Judge, Referee, or Court-Appointed Arbitrator — The court revises to citation in the rule and Comment [1] to the California Code of Judicial Ethics to comply with the California Style Manual.
• Rule 3.1 Meritorious Claims and Contentions — The court adds an asterisk after the word “person” in subparagraph (a)(1).
• Rule 3.3 Candor Toward The Tribunal* — The court amends paragraph (c) and Comment [6]. The court revises the citation in Comment [5] to comply with the California Style Manual. The court adds the heading “Ex Parte Communications” before Comment [7]. The court adds an asterisk after “tribunal’s” in Comment [1] and after “tribunal” in Comment [7].
• Rule 3.4 Fairness to Opposing Party and Counsel — The court amends Comment [2].
• Rule 3.5 Contact With Judges, Officials, Employees, and Jurors — The court adds the terms “rule or” before “ruling” in the introductory phrase to paragraph (b). The court deletes the word “or” at the end of subparagraphs (b)(1) through (b)(3). The court adds the word “or” at the end of subparagraph (g)(2). The court amends Comment [1].
• Rule 3.6 Trial Publicity — The court amends the internal rule citation in Comment [2]. The court adds an asterisk after “person” in subparagraph (b)(7)(ii).
• Rule 3.10 Threatening Criminal, Administrative, or Disciplinary Charges —The court revises the citation in Comment [3] to comply with the California Style Manual. The court adds a pinpoint citation to rule 3.8(a) in Comment [4].
• Rule 4.2 Communicating with a Unrepresented Person* — The court adds an asterisk next to “Person” in the rule title, next to “person’s” in Comment [5], and next to “person” at the end of Comment [9]. The court revises the citation in Comment [4] to comply with the California Style Manual.
• Rule 4.3 Dealing with Unrepresented Person* — The court adds an asterisk after “Person” in the rule title and after “person’s” in Comment [2].
• Rule 4.4 Duties Concerning Inadvertently Transmitted Writings* — The court adds an asterisk next to “person” in Comment [2].
• Rule 5.1 Responsibilities of Managerial and Supervisory Lawyers — The court removes Comment [6] and renumbers the subsequent Comments accordingly.
• Rule 5.2 Responsibilities of a Subordinate Lawyer — The court adds an asterisk after “person” in paragraph (a).
• Rule 5.3 Responsibilities Regarding Nonlawyer Assistants — The court adds an asterisk after “person’s” in paragraph (b).
• Rule 5.4 Financial and Similar Arrangements with Nonlawyers — The court adds an asterisk after “persons” in subparagraph (a)(1). The court deletes “or organization” and “organization or group” from paragraph (f). The court revises the citation in Comment [3] to conform with the California Style Manual. The court adds Comment [5].
• Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law — The court adds the word “or” at the end of subparagraph (a)(1) and adds the phrase “in that jurisdiction” to the end of subparagraph (a)(2). The court deletes the words “or entity” in paragraph (a)(2). The court revises the citations in the Comment to conform with the California Style Manual.
• Rule 5.6 Restrictions on a Lawyer’s Right to Practice — The court corrects a copyediting error in subparagraph (a)(1).
• Rule 6.3 Membership In Legal Services Organization — The court adds references to rules 1.6(a) and 1.18 in paragraph (a).
• Rule 7.2 Advertising — The court deletes the terms “or entity” from paragraph (b) and subparagraph (b)(5).
• Rule 8.1 False Statements Regarding Application for Admission to Practice Law — The court adds an asterisk after the term “person’s” in paragraphs (a) and (b) and Comment [1].
• Rule 8.1.1 Compliance with Conditions of Discipline and Agreement in Lieu of Discipline — The court revises the citation in the Comment to conform with the California Style Manual.
• Rule 8.2 Judicial and Legal Officers — The court revises the references to the California Code of Judicial Ethics in paragraphs (b) and (c) to comply with the California Style Manual.
• Rule 8.4 Misconduct — The court adds the word “those” before “activities” and “particular” before “lawyer” in Comment [6].
• Rule 8.4.1 Prohibited Discrimination, Harassment, and Retaliation — The court adds asterisk after “persons” in subparagraphs (a)(2) and (b)(2). The court revises the citation in Comment [2] to conform with the California Style Manual.
• Rule 8.5 Disciplinary Authority; Choice of Law — The court revises the citation in the Comment to conform with the California Style Manual.

Denied:

• The request to approve proposed rule 1.14, regarding a lawyer’s obligations in representation of clients with diminished capacity.

The State Bar of California was created by the Legislature in 1927, and serves as the administrative arm of the Supreme Court of California, protecting the public by licensing and regulating attorneys. The new rules become effective November 1, 2018.