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These Are Not Your Mother's Rules of Professional Responsibility (Plus A Legal Services Update)

Posted By Mark Shem, Saturday, July 10, 2010
Updated: Friday, April 25, 2014

by Mark Shem, SCCBA 2010 President

[reprinted from the July, 2010, Daily Journal, SCCBA Monthly Newsletter]

 Many of us of a certain age will remember studying the ABA Model Rules and Model Code of Professional Responsibility along with the California rules in law school.  While other areas of the law changed in the last few years, the rules of professional conduct have not changed substantially-until now.  In July, the California State Bar Board of Governors are expected to approve significant changes to what we learned was ethical conduct.  In fact, there are 69 new and amended proposed rule changes presently before the Board.  The Santa Clara County Bar Association will present timely MCLE seminars to educate you on those changes. Preceding those I wanted to highlight some of the more interesting proposals currently on the table.

 The SCCBA has already presented comments to the Board of Governors on many of the changes.  The SCCBA’s Professional Rules Revision Task Force, chaired by Roberta Hayashi, reviewed the current 69 proposed rule revisions, and the Task Force’s proposed comments on fourteen of the revisions were approved by the SCCBA Board of Trustees approved at its May, 2010 meeting.  The SCCBA was one of the few bar associations to comment on these rule changes.  Here are some of the highlights.

 Proposed Rule 1.6 would adopt a modified American Bar Association’s Model Rule 1.6 regarding confidentiality of information.  The State Bar’s rules revision committee altered the ABA’s rule by deleting the crime or fraud exception to the attorney-client confidentiality requirement.  The SCCBA Task Force felt the crime/fraud exception is a vital one, and objected to the deletion of this language. 

Another rule modification will require that consent to conflicts be “written informed consent.”  The proposed rule is stricter than the consent standard in the ABA’s Model Rules, which requires only that the client’s informed consent be “confirmed in writing.”  Only two other states, Wisconsin and Wyoming, require that the client provide written consent to a conflict.  A rule mandating a client writing can be a trap for the unwary.  The SCCBA opposed the proposed modification.

There is no proposed counterpart to the ABA’s Rule 1.10 regarding lateral lawyer conflicts.  Instead, the issue has been addressed in proposed Rule 1.8.11 which imputes all conflicts by one lawyer to the firm.  There is no screening at all provided in the current proposal.  The SCCBA recommended adopting the ABA’s 2009 version of Model Rule 1.10, which added provisions allowing for the limited screening of attorneys moving from one firm to another.  The 2009 ABA version of Rule 1.10 recognizes the reality of modern day law practice, which involves the mobility of attorneys, the lateral movement of attorneys among firms and the practical reality that if certain parameters can be met, attorneys can be effectively and timely screened so that a conflict of interest is not created for the attorney’s new firm or legal organization.

Another proposed rule addresses the special responsibility of prosecutors.  The rule under consideration closely tracks the ABA Model Rules with some modifications including language that only requires a prosecutor refrain from commencing or prosecuting a charge that the prosecutor actually knows is not supported by probable cause instead of a requirement of “recommend” and “reasonably should know” standard.  

Conflicts of interest rules mark the most significant change.  Proposed Rule 1.8.2 would forbid a lawyer from using any information of a client to the disadvantage of the client.  The ABA’s Model Rule is narrower, prohibiting a lawyer from using information “relating to the representation of a client” adversely to the client.  

Finally, with the internet now a source of referrals, proposed Rule 5.4 would address internet marketing sites and lawyer referral services on the internet.

We will continue to provide updates on the status of the rule changes through the SCCBA eNews.

 LEGAL SERVICES UPDATE

In January, I challenged our members to make financial contributions to legal services organizations.  While I don’t have any figures on how successful the challenge has been, our Legal Services Committee has been very active this year under the helm of Palo Alto City Attorney Gary Baum.  

 The SCCBA Legal Services Committee has been a resource that assists non profit legal aid organizations in sharing insights, discussing common problems and coordinating responses on issues of importance to the various legal services agency providers.  The Committee has five goals: (1) provide coordination and encourage communication among the local organizations that are direct providers of legal services; (2) provide coordination of bar member pro bono volunteers for legal services; (3)  consider and establish local priorities for addressing legal services and access to the court; (4) to provide a mechanism for providing advice on the distribution of resources to address local priorities; and (5) to provide input to the Association’s leadership on access issues including local funding, legal service board appointments and the development of local projects to address access issues.  The next meeting of the Legal Services Committee is scheduled for July 14 at 12:15 p.m at the SCCBA offices.  All are invited to attend.

 One important part of the Committee’s work includes tackling common issues that affect all of the legal service providers.  The Committee reviews local, State and Federal initiatives related to legal services.  The Committee has analyzed proposals for the SCCBA’s Board of Trustees and the American Bar Association and examined the funding crisis affecting all legal service providers.  The Committee has also tried to develop possible methods of encouraging solo or small firm participation in pro bono work.

Another important contribution of the Committee is planning an annual one day retreat which provides continuing legal education for all legal services providers.  Hillary Armstrong, Supervising Attorney of Health Legal Services for the Law Foundation of Silicon Valley, chairs the sub-committee that is organizing the retreat for 2010.  The retreat serves as a training opportunity as well as a chance for all the agencies to get together and share common problems and solutions.  The retreat has been scheduled for October 8, 2010, from 8:30 a.m. – 4:30 p.m. at the SCCBA’s offices.  

Recognizing the current economic climate, this year’s program is entitled Surviving the Great Recession: Providing Legal Services in Difficult Times.  Topics currently include litigation skills refreshers, legal ethics for lawyers and non-lawyers, and working with individuals with mental disabilities.  There will be an emphasis on speakers from the Bench in order to obtain the judicial perspective on the provision of legal services and Bench/legal service provider interaction.

Legal services organizations perform vital work and still need your help.  Please consider making a donation if you have not done so already.

On a final note, congratulations to Jim Towery on his appointment as the State Bar’s Chief Trial Counsel.  Best wishes to Jim as he takes on this monumental task.

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