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New ethics rules approved for Supreme Court review

The State Bar Board of Trustees in March approved a new set of ethics rules for California attorneys, marking the first major overhaul in about 30 years.

The new rules won’t go into effect until adopted by the California Supreme Court.

But attorneys may want to get familiar now with the proposal, which includes 70 new or amended Rules of Professional Conduct covering everything from avoiding conflicts of interest to holding client money in trust.

The Commission for the Revision of the Rules of Professional Conduct has worked on the proposals for the last two years, holding 34 public meetings and collecting feedback about attorneys’ ethical obligations. The commission considered over 600 public comments on individual rules from more than 140 people.

“This demonstrates the State Bar’s commitment to getting these rules right,” said the chairwoman of the commission, the Honorable Lee Edmon, Presiding Justice of Division Three of the 2nd District Court of Appeal. One of the commission’s guiding principles was to “promote confidence in the legal profession and the administration of justice, and ensure adequate protection to the public.”

The board approved a set of 34 rules brought forward by the commission in March. An initial set of 36 was approved in November.The package was submitted to the Supreme Court on March 30 under docket number S240991.

Highlights of the total package include:

-          Expansion of the ban on discrimination to allow the State Bar to open an investigation without a previous civil finding and to include express prohibitions on harassment and retaliation. The rule would also require an attorney facing discipline charges related to such misconduct to notify the federal and state agencies that enforce anti-discrimination laws.

-          A stricter rule against sex with clients, banning it unless there was a prior consensual relationship. The current rule prohibits sex as a quid pro quo for representation or if the lawyer employed “coercion, intimidation, or undue influence.”

-          Various rule changes to enhance competence and promote lawyer-client communication.

-          A requirement that advance fees must be held in trust and express prohibition of fees contingent on the outcome of a criminal case or the terms of a divorce.

While the commission did not adopt a disciplinary rule requiring lawyers to provide pro bono legal services, proposed rule 1.0 [Purpose and Function of the Rules of Professional Conduct] includes a comment which provides that every lawyer should aspire to render at least 50 hours of free legal services or give money to those who do so.

Separately, in October, the Board of Trustees approved a “fast-track” rule to specifically address prosecutor misconduct. That rule was sent to the court earlier and could be approved ahead of the others.

Proposed rule 5-110, which is similar to American Bar Association Model Rule 3.8, requires broad disclosure of evidence the prosecutor knows or reasonably should know would be helpful to the defense. It was sent to the Supreme Court in January under docket number S239387.