Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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What authority does the ABA Model Code of Professional Responsibility have for the California lawyer?
Although there is apparent widespread misconception, the ABA Model Code of Professional Responsibility, (ABA code) like sister state rules and court opinions, is not binding in California although it may be persuasive in those instances where there is no controlling rule of professional conduct, statute or Court ruling in California. The ABA code, if otherwise applicable, would be subject to the public policy of the state of California and reasonable inferences which may be drawn from existing California Rules of Professional Conduct, statutes and court rulings.
Rule 1-100, Rules of Professional Conduct of the State Bar of California.
Currently Rule 1-100 provides that the provisions of the California rules are not intended to supersede any provisions of law relating to attorney conduct, nor is prohibition of certain conduct intended to be approval of conduct not specifically mentioned. This rule became effective in January 1975. Predecessor versions of the rule included the phrase "the Code of Professional Responsibility of the American Bar Association should be noted by the members of the State Bar." Because of the omission of any reference to the ABA code in the January 1975 version, it would seem the ABA rules are not authoritative in California but can be looked to for guidance or support for conduct, e.g., People v. Ballard (1980) 104 Cal.App.3d 757.
The origin of present Rule 1-100 derives from former Rule 1 of the California Rules of Professional Conduct. (See "Origin of Proposed New Rules of Professional Conduct" (1974) 49 State Bar Journal 546.) Former Rule 1, approved by the Supreme Court of California on May 24, 1928, provided insofar as pertinent here:
"...[T]hese rules shall be binding upon all members of the State Bar, and the willful breach of any of these rules shall be punishable by suspension from the practice of the law lot a period not to exceed one year. The specification in these rules of certain conduct as unprofessional is not to be interpreted as an approval of conduct not specifically mentioned. In that connection the Canons of Ethics of the American Bar Association are commended to the members of The State Bar." (Emp. added.)
Following the adoption of the American Bar Association Model Code of professional Responsibility in 1969, former Rule 1 was amended as follows:
"...The specification in these rules of certain conduct as unprofessional is not to be interpreted as an approval of conduct not specifically mentioned. In that connection the Code of Professional Responsibility of the American Bar Association should be noted by the members of the State Bar..." (Emp. added.)
Present Rule 1-100, adopted in 1975, deleted any references to the American Bar Association Code, and inserted the following:
"The prohibition of certain conduct in these rules is not to be interpreted as an approval of conduct not specifically mentioned."
In People v. Ballard (1980) 104 Cal.App.3d 757, 761, the court noted that the conduct of California attorneys is governed by the California rules and not by the ABA rules. It is interesting to note that this court, nevertheless, did refer to ABA rules as authority in support of its decision.
The removal of all references to the ABA code in the 1975 version of Rule 1-100 by the Board of Governors and the California Supreme Court can only reasonably mean that the ABA code is not intended to be looked to as having any special significance to California lawyers. The California courts seem to suggest that the ABA code can be of assistance and may where the California courts have not spoken, (e.g., Altschul v. Sayble (1978) 83 Cal.App.3d 153.) The ABA code would thus have the same force and effect as sister state rules and court rulings.
The Federal courts in California publish local rules of court which govern practice before them and provide therein for standards of professional conduct. For example, Rule 110-3 of the local rules for the Northern District provides that the attorney "shall be familiar with and comply with the standards of professional conduct required by members of the State Bar of California and contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of California, and decisions of any court applicable thereto:"
The State Bar Act found in the Business and Professions Code-, Rules of Professional Conduct; various statutes passed by the Legislature, e.g., Civil Code, Code of Civil Procedure, Corporations Code, Education Code, Evidence Code, Government Code, Penal Code, Revenue and Taxation Code, and opinions of the California Appellate Courts form the basis for establishing professional responsibility and conduct of California attorneys. To the extent these sources do not answer a particular question or solve a problem, other sources are explored, including sister state rules, court opinions, federal court opinions and the ABA rules of professional conduct. The persuasiveness of these collateral sources should depend upon their underlying logic and historical basis.
The ABA code of professional responsibility has no direct effect on California lawyers practicing in state and federal courts within California State of law. It would, however, appear that the ABA rules may be looked to as a collateral source, particularly in those instances where there is no direct authority found under applicable California rules, statutes or California appellate court opinions and there is no conflict with the public policy of California.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regultatory responsibilities, or any member of the State Bar.
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