The State Bar seeks public comment on Proposed Formal Opinion Interim No. 19-0003 (Improper Contract Provisions).
Deadline: June 8, 2021
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.
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 applicable State Bar policy and procedure, the committee shall publish proposed formal opinions for public comment (See, State Bar Board of Trustee Resolutions July 1979 and December 2004. See also, Board of Trustee Resolution November 2016).
On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct, which went into effect on November 1, 2018. Information about the new rules is available here. Proposed Formal Opinion Interim No.19-0003 interprets the new Rules of Professional Conduct.
Proposed Formal Opinion Interim No.19-0003 considers:
What are a lawyer's ethical duties when advising a client regarding the use of a contract provision in a transaction with a third party that is illegal under the law of the jurisdiction applicable to the transaction?
The opinion interprets rules 1.1, 1.2.1, 1.4, 1.13, 1.10, 1.16, 4.1, and 8.4 of the Rules of Professional Conduct of the State Bar of California; Business and Professions Code section 6068(d).
The opinion digest states: A California lawyer has a duty not to counsel or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal. That conduct includes the use of a contract provision in a transaction with a third party that has been found to be illegal under the law of the jurisdiction applicable to the transaction. If the lawyer knows that the provision is illegal, the lawyer should advise the client accordingly, may not recommend the use of the provision, and must counsel the client not to use it. If the client insists on the use of the illegal provision against the lawyer's advice, the lawyer may not participate in presenting the illegal provision to the third party. In that event, the lawyer may withdraw from the representation but is not required to do so. If the lawyer concludes that the conduct is a violation of law reasonably imputable to the organization and likely to result in substantial injury to the organization, the lawyer for an organization must report the actions of the client constituent to a higher authority, unless the lawyer reasonably concludes that it is not in the best lawful interest of the organization to do so.
At its February 26, 2021, meeting, and in accordance with their procedures, COPRAC tentatively approved Proposed Formal Opinion Interim No.19-0003 for a 90-day public comment distribution.
None
Committee on Professional Responsibility and Conduct
June 8, 2021