New Rules of Professional Conduct in California

Earlier this year the California Supreme Court approved a new set of Rules of Professional Conduct for attorneys. The new rules, administered through the State Bar of California, go into effect on November 1, 2018, and reflect the first major overhaul of California's ethics rules since 1989.

The rules have expanded from 46 to 69, and they are now organized using an American Bar Association Model Rules-style numbering system. The California State Bar does offer a Rules Cross-Reference Table to help ease confusion.

Competence has been moved to the very start, at 1.1, and Diligence has been given its own rule, 1.3. These two changes, while not especially substantive, do highlight the focus on protecting the public from predatory (and incompetent) lawyers.

Below are some of the more notable changes you'll find in the New Rules of Professional Conduct. The full list can be found at the State Bar of California's website.

Advising or Assisting the Violation of Law: Rule 1.2.1 keeps the substance of the previous rule 3-210, while adding clarifying language. A notable addition is comment [6]. This allows a lawyer to "advise a client regarding the validity, scope and meaning of California laws that might conflict with" An example could be working with a client involved in the cannabis industry, which is currently legal in California but illegal under federal law.

Unconscionable Fees: Rule 5.1 retains California's unconscionability standard for fees. There are two more factors added for determining whether fees are unconscionable: Failure to disclose material facts, and engaging in fraud or overreaching in negotiating fees.

Gifts from Clients: Rule 1.8.3 is updated with clarifying language, including changing "member's parent, child, sibling or spouse" to "a person related to the lawyer," and defines that phrase as a person who is related by blood or affinity with reference to Probate Code section 21374(a). The new version also specifically prohibits lawyers from preparing an instrument that gives them or a related person a substantial gift.

Sexual Relations with Current Client: Rule 1.8.10. In one of the more controversial and sweeping changes, 1.8.10 flat out prohibits sexual relations with clients unless they are a spouse or registered domestic partner, or unless there was a preexisting sexual relationship. This is a sharp departure from the old rule that was more narrowly focused.

Duty to Supervise: Rules 5.1, 5.2 and 5.3 establish that lawyers have a duty to supervise subordinates (who themselves must also comply with the rules). Each section calls out the responsibilities of different groups specifically, including 5.1: partners, managers, and supervisory lawyers; 5.2: subordinate lawyers; 5.3: non-lawyer assistants.

All attorneys admitted to practice in California should review the new rules in their entirety in order to be in compliance.

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