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:

Proposed Formal Opinion Interim No. 11-0002 (Deceitful Conduct).

BACKGROUND:

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct.  In accordance with Tab 19, Article 2, Section 6(g) (as modified by Tab 12, Title 1, Division 2, Rule 1.10) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.

DISCUSSION/PROPOSAL:

Proposed Formal Opinion Interim No. 11-0002 considers: Has an attorney engaged in deceitful conduct by not alerting opposing counsel of: (A) an apparent material error made by opposing counsel in contract language; or (B) a material change made by the attorney in contract language?

The opinion interprets rule 3-700(B)(2)of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6106 and 6128(a).

The opinion digest states: Where an attorney has engaged in no conduct or activity that induced an apparent error by opposing counsel, the attorney has no obligation to alert the opposing counsel of the apparent error.  However, where the attorney has made a material change in contract language in such a manner that his conduct constitutes deceit, active concealment or fraud, the failure of the attorney to alert opposing counsel of the change would be a violation of his ethical obligations.
   
At its August 10, 2012 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 11-0002 for a 90 day public comment distribution.

ANY KNOWN FISCAL/PERSONNEL IMPACT:

None

ATTACHMENT:

Proposed Formal Opinion Interim No. 11-0002

SOURCE:

State Bar Standing Committee on Professional Responsibility and Conduct

DEADLINE:

5 p.m., Nov. 27, 2012

DIRECT COMMENTS TO:

Angela Marlaud
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
Ph. (415) 538-2116
Fax (415) 538-2171
E-mail: angela.marlaud@calbar.ca.gov