After almost 30 years, the California Supreme Court released its long-awaited comprehensive overhaul of the state’s rules and guidelines of professional conduct for lawyers. This overhaul has been a long time coming as these changes took several years of drafting, numerous months of reviewing, and many months of rewriting. The new ethics rules, centered upon the ABA’s model rules, are said to be an example of the ABA’s influence on the state’s codes.
While this overhaul was approved by the court in May 2018, the revisions didn’t take effect until November 2018. These updated rules totaled 112 pages and amended roughly 70 rules. These Rules of Professional Conduct, new and old, “have been adopted by the Board of Trustees and approved by the California Supreme Court pursuant to statute to protect the public and to promote respect and confidence in the legal profession.”
Some of the highlights sparking discussion including provisions regarding conflicts of interest, discrimination, romantic entanglements between attorneys and clients, and retaliation. A snippet of the updated rules are as follows:
Rule 1.7 – Conflict of Interest: Current Clients
The checklist in the previous Rule 3-310 has now been replaced with a “bright-line test.” This new test requires an attorney to obtain informed consent, confirmed in writing if the representation: “is directly adverse to another client in the same or a separate matter” or “will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.”
Rule 1.10 – Imputation of Conflicts of Interest: General Rule
Conflicts of interest rules have expanded the definition of a legal matter. This expansion better aligns the understanding of a legal matter with what other attorneys across the country define a legal matter as, in conjunction with their understanding of the scope of conflicts of interest. These broader and less case-specific rules not only touch on the definition of a legal matter in terms of conflicts but also non-representation requirements.
Rule 8.4.1 – Prohibited Discrimination, Harassment, and Retaliation
The rule reads, "all law firm lawyers the responsibility to advocate corrective action to address known harassing or discriminatory conduct by the firm or any of its lawyers or nonlawyer personnel." With the enlargement of this rule, the bar has greater power and the attorneys who are disciplined have additional requirements. First, the bar can commence an investigation into harassment or discrimination allegations without a “triggering civil finding by another agency.” Moreover, lawyers who are disciplined must notify workplace-fairness agencies, state-wide and federally.
Rule 1.8.10 – Sexual Relations with Client
Lawyers are generally prohibited from having sexual relations with their clients. (Yes, even if it is consensual.) The previous rules banned lawyers from having sexual relations with their clients if it was either coerced or in exchange for legal service rendered. Now, sexual relations are permitted if – and only if – there was a previous consensual relationship between the lawyer and the client.
With this recent implementation amid the holiday seasons, California attorneys should ensure that they’re abreast of the changes and abide accordingly. We’ve only highlighted just a few of the rules’ newest features, but there are many more to know. Attorneys will be responsible for being familiar with all duties included within the rule book as “the rules and any related standards adopted by the Board are binding on all attorneys licensed by the State Bar.”
How can FirmVO assist?
Through our partnership with the National Academy of Continuing Legal Education, we offer CLE programs! Attorneys can gain CLE credit by watching from over 1200 courses within our database. FirmVO wants our clients to keep up with the changes in your jurisdiction, so we provide virtual courses at your fingertips.
Furthermore, FirmVO is meticulous in creating satellite offices and delivering support services so that they are completely ethical and legal. Our office locations and technology can be used to establish a flexible office as a physical or bona fide office because FirmVO offers a tailor-made friendly, legal solution.
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