California overhauled its Rules of Professional Conduct effective November 1, 2018. This post highlights some impactful revisions for commercial litigators. However, all California lawyers should familiarize themselves with the sixty-nine new and revised rules.The new rules affect all facets of practice—even at the client and business development phase. For example, Rule 1.18 imposes a duty of confidentiality on attorneys when meeting with prospective clients: attorneys cannot use or reveal any confidential information learned as a result of that meeting, “even when no lawyer-client relationship ensues.” Rule 8.4.1 still prohibits discrimination and retaliation “in representing a client, or in terminating or refusing to accept the representation of any client,” but now also prohibits law firms from making discriminatory hiring, firing, training, or compensation decisions. Rule 8.4.1’s prohibitions are more expansive than its predecessor, Rule 2-400, and prohibit discrimination based on medical condition, genetic information, marital status, veteran status, “or other category of discrimination prohibited by applicable law, whether the category is actual or perceived.”
The new rules regime affects the daily operation of law firms. For example, Rule 5.1 and Rule 5.3 describe the obligations for managerial attorneys who supervise subordinate attorneys and non-lawyers (e.g. “secretaries, investigators, law student interns, and paraprofessionals”). These rules are a significant departure from California’s prior professional conduct rules, which only referenced “the duty to supervise” in a brief comment to Rule 3-110.
California also has implemented the ABA Rules on conflicts-of-interest. By way of example, Rule 1.7 replaces the checklist in former Rule 3-310 with a new “bright-line” test requiring an attorney to obtain informed written consent if his or her representation: (1) “is directly adverse to another client in the same or a separate matter” or (2) “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.” That said, per Rule 1.10, a law firm can now use ethical screens to cure problems created by Rule 1.7 conflicts – a practice that was discouraged under the old rules.
The new professional conduct rules also affect individual practitioners. For example, Rule 1.2.1 allows attorneys to counsel their clients about the “legal consequences of any proposed course of conduct.” This development is especially important if federal and state laws diverge, like on immigration-related matters. Of course, attorneys still cannot counsel a client to break the law.
California has added a new rule governing attorney conduct upon accidental receipt of a privileged writing. Rule 4.4 requires attorneys to promptly notify the sender about the accidental transmittal and “to refrain from examining the writing any more than is necessary” to determine privilege. While this is newly stated as a rule of professional conduct, the rule merely reiterates the standard approved by the California Supreme Court over a decade ago. See Rico v. Mitsubishi, 42 Cal. 4th 807, 817 (2007).
California’s rules now mirror the order and organization of the American Bar Association Model Rules of Professional Conduct (“ABA Rules”). While a majority of states have adopted the ABA Rules in their entirety, California retains its individuality and deviates from the ABA Rules in some critical ways. A notable example is Rule 1.6, by which California continues to impose the nation’s most rigorous duty of confidentiality. The ABA and many jurisdictions “impliedly authorize” several exceptions to an attorney’s duty of confidentiality, whereas California does not. A California attorney may only disclose a client’s confidential information without informed consent when the attorney reasonably believes it is “necessary to prevent a criminal act” that will likely result in death or bodily harm. The attorney, however, must first make “a good faith effort to persuade the client” not to commit the act. She must also inform the client of her “ability or decision to reveal” the confidential information.
Ultimately, it is a lawyer’s professional responsibility to consult California’s revised rules and their accompanying comments—even if that requires some deliberate unlearning of the material you mastered while preparing for the bar exam or MPRE.