The State Bar seeks public comment on two versions of proposed Rule 1.2.1 of the Rules of Professional Conduct. Proposed Rule 1.2.1 would prohibit an attorney from advising or assisting the violation of law.
Deadline: 5 p.m., July 3, 2018
Note: Publication for public comment is not, and shall not, be construed as a recommendation or approval by the Board of Trustees of the materials published.
At its March 9, 2017, meeting the Board adopted proposed Rule 1.2.1. Adoption of Rule 1.2.1 was one part of a comprehensive recommendation for the Board’s adoption of proposed new and amended rules. On March 30, 2017, the proposed rules were submitted to the Supreme Court of California for approval (Supreme Court case no. S240991). On April 11, 2018, the Supreme Court issued Administrative Order 2018-04-11 on the State Bar’s request to approve proposed Rule 1.2.1. The order includes substantive revisions to one of the Comments, Comment , in proposed rule 1.2.1 and some other minor modifications. The order directs the Board to consider whether to adopt this version of the rule.
This matter was referred to the Commission for the Revision of the Rules of Professional Conduct for study. The Commission met on May 8, 2018 and agreed with the concepts of all of the revisions included in the Supreme Court’s order. On May 17, 2018, the Board Committee on Regulation and Discipline authorized a 45-day public comment period on two versions of proposed rule 1.2.1 submitted by the Commission.
Rule 1.2.1 prohibits a lawyer from advising or assisting the violation of law, including criminal conduct, fraudulent conduct and a violation of any law, rule or ruling of a tribunal. It carries forward the substance of current rule 3-210 and adds clarifying language derived from the American Bar Association’s Model Rule 1.2(d) which in part provides that a lawyer may discuss the legal consequences of a client’s proposed course of conduct without violating the prohibition against advising or assisting a violation of law. Rule 1.2.1 also includes explanatory Comments, including Comment , that addresses circumstances where state law might conflict with federal law or tribal law and policy.
Comment  would, for example, serve as guidance to lawyers who advise marijuana dispensaries because California state law permits certain lawful sales and use of marijuana while under federal law, marijuana remains a Schedule I drug pursuant to the Controlled Substances Act (21 U.S.C. §§ 801-904), rendering the use, possession, distribution, or manufacture of marijuana illegal, even if such conduct otherwise conforms to state law. (See California Supreme Court Committee on Judicial Ethics Opinions, Formal Opinion 2017-010 [Issued April 19, 2017] re “Extrajudicial Involvement in Marijuana Enterprises.”)
At the Commission’s May 8, 2018 meeting, the Commission prepared two alternative versions of proposed rule 1.2.1 as its recommendation for public comment. One version (ALT1) is the exact language included in the Supreme Court’s order without change, and the other version (ALT2) represents the Commission’s effort to sharpen the Court’s revisions.
At its meeting on May 17, 2018, the Board of Trustees’ Regulation and Discipline Committee considered the two versions and authorized a 45-day public comment period. The State Bar invites public comment on both versions.
Commission for the Revision of the Rules of Professional Conduct of the State Bar of California
5 p.m., July 3, 2018
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
However, if you cannot use the online form, comments may be submitted by mail to the address indicated below.
Written comments may be sent to:
Angela Marlaud Office of Professional Competence, Planning and DevelopmentThe State Bar of California 180 Howard Street San Francisco, CA 94105-1639 Phone: 415-538-2116 Fax: 415-538-2171 E-mail: firstname.lastname@example.org