PLEASE NOTE:  Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Trustees of the materials published

SUBJECT:

 Comprehensive proposed amendments to the Rules of Professional Conduct of the State Bar of California

BACKGROUND:

By statute, the Board of Trustees (“Board”) has the authority to adopt amendments to the Rules of Professional Conduct of the State Bar of California that are binding upon all members of the State Bar once those rules are approved by the California Supreme Court. (Business and Professions Code sections 6076 and 6077.)  The Board has assigned the Commission for the Revision of the Rules of Professional Conduct (“Commission”) to conduct a study of the Rules of Professional Conduct and to recommend comprehensive amendments. It is anticipated that this project will be completed by March 31, 2017.

DISCUSSION/PROPOSAL:

At its June 23, 2016 meeting, the board authorized a 90-day public comment period and a public hearing on 68 proposed new and amended rules prepared by the commission as an initial report and recommendation for comprehensive revisions.

After the conclusion of the 90-day public comment period, which included a public hearing on July 26, 2016, the Commission met on Aug. 26, Sept. 30 and Oct. 21 and 22, 2016  to consider the comments and testimony received. Following consideration, the commission further revised 30 proposed rules, and voted to add two new proposed rules that were not a part of the 90-day public comment period. The two rules are proposed rules 1.18 (Duties to Prospective Clients) and 2.1 (Advisor). Thirty-eight rules were not revised by the commission. These 38 rules were submitted to the board with the recommendation that they be adopted. The 30 proposed rules that were revised by the commission, and the two new rules, were submitted to the board with a recommendation for an additional 45-day public comment period.

At its Nov. 17, 2016 meeting, the board considered the commission’s recommendations. Of the 38 proposed rules that were recommended for adoption, the board adopted 36 rules. Two rules were not adopted but were revised by the board and authorized for an additional 45-day public comment period. Those rules were 5.3.1 (Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Lawyer) and 5.6 (Restrictions on a Lawyer’s Right to Practice). Of the 32 rules recommended for public comment, the board amended two rules. Those rules were 1.9 (Duties to Former Clients) and 1.13 (Organization as Client).

In accordance with the action taken by the board, there are now 34 rules for which public comment is sought. This includes rules 5.3.1 and 5.6 that were originally recommended by the commission for adoption. The 36 proposed rules that have been adopted by the board will be prepared for transmission to the Supreme Court for approval. Those rules will not be transmitted until the State Bar has completed consideration of all of the proposed rules. This means that the 36 rules that have been adopted are no longer under consideration by the commission, and public comment is no longer being sought on those rules.

At its Nov. 17 meeting, the board directed staff to invite public comment on three specific issues. First, in connection with proposed rule 1.0.1 (Terminology), the board is requesting comment on the proposed definition of “tribunal” (see paragraph (m)). Second, in connection with proposed rule 3.5 (Contact with Judges, Officials, Employees and Jurors), the board is requesting comment on whether the use of the word “counsel” in subparagraphs (b)(2), (3) and (4) adequately conveys the commission’s intent that the requirement in these paragraphs of rule 3.5 apply to pro se litigants. Third, in connection with proposed rule 1.2.1 (Advising or Assisting the Violation of Law), the board is requesting comment on whether the rule should include an express exception for a situation where a lawyer believes in good faith that a law, rule or ruling is invalid.

Attachment 1 provides the full text of the proposed new and amended Rules of Professional Conduct. This attachment includes both the 34 rules for which public comment is sought and the 36 rules that have been adopted. Although the adopted rules are not a part of this request for public comment, they are included in this attachment because the rules are interrelated and viewing the rules in context should facilitate informed public comment. To avoid confusion, the title of each rule indicates whether a rule has been adopted or is a rule for which public comment is being sought.

Attachment 2 provides the commission’s report and recommendation in the form submitted to the board for the board’s November meeting (board agenda item 702 NOV 2016).

Attachment 3 provides an executive summary and redline/strikeout versions of the proposed rules that were revised by the board at the board’s November meeting.

Attachment 4 provides a memo summarizing the ABA Model Rules that were studied by the commission but are not recommended for adoption.

Comments may be submitted on one or more of the proposed rules as well as on the Model Rules that were considered by the commission but are not recommended for adoption.

ANY KNOWN FISCAL/PERSONNEL IMPACT:

None

ATTACHMENTS:

1)    Proposed New and Amended Rules of Professional Conduct of the State Bar of California
2)    Commission’s Memorandum to the Board of Trustees – Agenda Item 702 NOV 2016
(This memorandum provides redline/strike versions of the proposed rules with the exception of the five rules revised by the board itself at the board’s Nov. 17, 2016 meeting. See attachment 3 for the redline/strikeout versions of rules revised by board.)
3)    Executive summaries and redline/strikeout versions of the proposed rules revised by the board at the
board’s Nov. 17, 2016 meeting

4)    Rules and Concepts Considered but Not Recommended for Adoption

SOURCE:

Commission for the Revision of the Rules of Professional Conduct of the State Bar of California

DEADLINE FOR COMMENT:

Jan. 9, 2017

DIRECT COMMENTS TO:

Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.

However, if you cannot use the online form, comments may be submitted by mail to the address indicated below.

Audrey Hollins
Office of Professional Competence, Planning and Development
The State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Ph. # (415) 538-2167
Fax # (415) 538-2171
E-mail: audrey.hollins@calbar.ca.gov