Proposed Amendments to Rules of Professional Conduct 8.2 and 8.4

Proposed Amendments to Rules of Professional Conduct 8.2 and 8.4

The State Bar seeks public comment on Proposed Amendments to Rules of Professional Conduct 8.2 and 8.4. 

Deadline: April 15, 2025, 11:59 p.m. (60 days)

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.

Background

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with addressing matters involving legal ethics to help California lawyers understand their ethical duties. The committee’s work includes studying and recommending changes to the Rules of Professional Conduct. (See State Bar Board Book, Section 4.12 & Appen. B.)

One November 26, 2024, the California Judges Association submitted a request to COPRAC that the State Bar of California make modifications to the Rules of Professional Conduct in response to increased public criticism resulting in threats and violence against judges due to their rulings. This endangers judicial independence and public trust in the legal system.

COPRAC prepared amendments to the Rules of Professional Conduct that, if adopted, would clarify that lawyers shall not make false or misleading statements to the public and media that could prejudice judicial proceedings or endanger judicial officers and court personnel where such statements are not protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.

COPRAC seeks public input on proposed Rules of Professional Conduct 8.2 and 8.4.

Discussion/proposal

Amendments to rule 8.2 would: 

  • Clarify through a new Comment [1] that a statement asserted as opinion, can be the basis for discipline if that “statement implies actual facts that are capable of objective verification,” citing In re Yagman (9th Cir. 1995) 55 F.3d 1430, 1441.The opinion interprets rules 1.5, 1.8.1, 1.15, and 1.16 of the Rules of Professional Conduct and Business and Professions Code section 6148.

Amendments to rule 8.4 would:

  • Relocate who is a “judge” or “judicial officer” for purposes of the rule from paragraph (f) to new Comment [8].
  • Clarify that certain types of unprotected activities, including speech, may be the basis for discipline under rule 8.4.

At its January 31, 2025, meeting, COPRAC approved proposed rule amendments to 8.2 and 8.4 for a 60-day public comment period. 

Any fiscal/personnel impact

None

Background material
Source

State Bar Standing Committee on Professional Responsibility and Conduct

Deadline

April 15, 2025, 11:59 p.m.

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.