SUBJECT

90-day public comment on 69 proposed new or amended Rules of Professional Conduct developed by the State Bar's Special Commission for the Revision of the Rules of Professional Conduct.

NOTE: Eleven proposed rules were conditionally adopted by the Board of Governors at its May 15, 2010 meeting and have been added to the current public comment proposal. Relevant materials also have been updated. Each of these rules is marked "UPDATED 5-17-10" --- even if the text of a rule was not changed as a result of the Board's action. To determine the changes, if any, refer to the rule Discussion Draft materials. In addition, the document reporting on "Rules/Concepts Not Recommended for Adoption" has been updated based on the Board's action to address the new status of Rules 4.1 and 6.1, as rules that are not being recommended for adoption.

BACKGROUND

The Rules of Professional Conduct of the State Bar of California are attorney conduct rules the violation of which will subject an attorney to discipline. Pursuant to statute, rule amendment proposals may be formulated by the State Bar for submission to the Supreme Court of California for approval. (See Bus. & Prof. Code Section 6076.)

The State Bar has assigned the Commission to conduct a thorough study of the rules and to recommend comprehensive amendments. The Commission has distributed six groups of draft rules for an initial public comment period. Each of these distributions has been accompanied by a public hearing held during the respective public comment period. To date, five groups of draft rules have been reconsidered in light of public input received. Many of the draft rules have been revised in response to public input.

Beginning in 2008, the Board of Governors began its review of the proposed draft rules and has proceeded to adopt proposed final rules included in these five groups. The Board's adoption of these proposed draft rules has been conditioned on an understanding that further changes to the rules may be effectuated following a subsequent comprehensive public comment distribution and period during which the public would be afforded an opportunity to review all of the proposed draft rules as a single, integrated whole.

This 90-day public comment serves as the subsequent comprehensive distribution of the entire set of 69 rules. As of the posting date, 57 of the rules have been conditionally adopted and 12 are tentative drafts that are still under their initial public comment review. Following that review, these 12 tentative drafts will be replaced with rules conditionally adopted by the Board and the public will be afforded an opportunity to review the replacement drafts at least 30 days prior to the deadline for this 90 day public comment. It is anticipated that the Board of Governors will take action to adopt conditionally the tentative drafts of the 12 rules at the Board meetings on May 13-15, 2010.

After Commission consideration of the input received from this 90-day public comment, the Commission will forward to the Board of Governors a final, comprehensive set of Rules so that the Board may take final action to adopt the Rules as an integrated whole and direct the State Bar staff to transmit them to the Supreme Court of California with a recommendation that the Supreme Court approve the Rules. Rules of Professional Conduct become operative and binding upon all members of the bar only if approved by the Supreme Court. (See Bus. & Prof. Code Section 6077.)

PROPOSAL

The 69 proposed new and amended rules are listed below in numerical order by proposed new rule number. Where applicable, the rule number of the comparable current California rule is indicated in brackets. Proposed rules that are part of the 12 tentative drafts that will be substituted with a Board adopted rule at least 30 days prior to the deadline for this 90-day public comment are designated as a "Batch 6" rule. The public is encouraged to focus attention first on the 57 rules that have been conditionally adopted and reserve the latter portion of the public comment period for consideration of the twelve rules that will be substituted into this proposal.

Rule                     Title
Rule 1.0            Purpose and Scope of the Rules of Professional Conduct      
Rule 1.0.1        Terminology UPDATED 5-17-10 (PREVIOUSLY *BATCH 6*)      
Rule 1.1            Competence        
Rule 1.2           Scope of Representation and Allocation of Authority Between Client and Lawyer
Rule 1.4           Communication      
Rule 1.4.1        Disclosure of Professional Liability Insurance UPDATED 5-17-10 (PREVIOUSLY *BATCH 6*)      
Rule 1.5           Fees for Legal Services       
Rule 1.5.1        Financial Arrangements Among Lawyers      
Rule 1.6           Confidential Information of a Client       
Rule 1.7           Conflict of Interests: Current Clients      
Rule 1.8.1         Business Transactions with a Client and Acquiring Interests Adverse to the                        Client
Rule 1.8.2         Use of Current Client's Confidential Information      
Rule 1.8.3         Gifts from Client       
Rule 1.8.5         Payment of Personal or Business Expenses Incurred by or for a Client      
Rule 1.8.6         Payments Not From Client       
Rule 1.8.7         Aggregate Settlements      
Rule 1.8.8         Limiting Liability to Client       
Rule 1.8.9         Purchasing Property at a Foreclosure Sale or a Sale Subject to Judicial Review Rule 1.8.10       Sexual Relations with Client       
Rule 1.8.11       Imputation of Personal Conflicts (Rules 1.8.1 to 1.8.9)      
Rule 1.9            Duties to Former Clients       
Rule 1.10              Imputation of Conflicts of Interests: General Rule UPDATED 5-17-10 (PREVIOUSLY *BATCH 5*)      
Rule 1.11         Special Conflicts for Former and Current Government Officers and Employees
                        UPDATED 5-17-10 (PREVIOUSLY *BATCH 6*)     
Rule 1.12         Former Judge, Arbitrator, Mediator or Other Third-Party Neutral nbsp;    
Rule 1.13         Organization as Client       
Rule 1.14         Client with Diminished Capacity       
Rule 1.15         Handling Funds and Property of Clients and Other Persons      
Rule 1.16         Declining Or Terminating Representation       
Rule 1.17         Purchase and Sale of a Law Practice UPDATED 5-17-10 (PREVIOUSLY *BATCH 6*)      
Rule 1.18         Duties to Prospective Clients UPDATED 5-17-10 (PREVIOUSLY *BATCH 6*)      
Rule 2.1           Advisor      
Rule 2.4           Lawyer as Third-Party Neutral       
Rule 2.4.1        Lawyer as Temporary Judge      
Rule 3.1           Meritorious Claims       
Rule 3.3           Candor Toward the Tribunal      
Rule 3.4           Fairness to Opposing Party and Counsel       
Rule 3.5           Impartiality and Decorum of the Tribunal      
Rule 3.6           Trial Publicity       
Rule 3.7           Lawyer As A Witness      
Rule 3.8           Special Responsibilities of a Prosecutor       
Rule 3.9           Advocate In Non-adjudicative Proceedings UPDATED 5-17-10 (PREVIOUSLY *BATCH 6*)     
Rule 3.10         Threatening Criminal, Administrative, or Disciplinary Charges       
Rule 4.2           Communication with a Person Represented by Counsel       
Rule 4.3           Dealing with Unrepresented Person      
Rule 4.4           Respect for Rights of Third Persons UPDATED 5-17-10 (PREVIOUSLY *BATCH 6*)      
Rule 5.1           Responsibilities of Partners, Managers, and Supervisory Lawyers      
Rule 5.2           Responsibilities of a Subordinate Lawyer       
Rule 5.3           Responsibilities Regarding Nonlawyer Assistants      
Rule 5.3.1        Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive                        Member
Rule 5.4           Duty to Avoid Interference with a Lawyer's Professional Independence      
Rule 5.5           Unauthorized Practice of Law; Multijurisdictional Practice       
Rule 5.6           Restrictions on Right to Practice      
Rule 6.2           Accepting Appointments UPDATED 5-17-10 (PREVIOUSLY *BATCH 6*)     
Rule 6.3           Legal Services Organizations       
Rule 6.4           Law Reform Activities      
Rule 6.5           Limited Legal Services Programs UPDATED 5-17-10 (PREVIOUSLY *BATCH 6*)       
Rule 7.1           Communications Concerning the Availability of Legal Services      
Rule 7.2           Advertising       
Rule 7.3           Direct Contact with Prospective Clients      
Rule 7.4           Communication of Fields of Practice and Specialization       
Rule 7.5           Firm Names and Letterheads      
Rule 8.1           False Statement Regarding Application for Admission to Practice       
Rule 8.1.1        Compliance with Conditions of Discipline and Agreements in Lieu of Discipline Rule 8.2           Judicial and Legal Officials; Lawyer as Candidate or Applicant for Judicial Office                         UPDATED 5-17-10 (PREVIOUSLY *BATCH 6*)      
Rule 8.3           Reporting Professional Misconduct      
Rule 8.4           Misconduct       
Rule 8.4.1        Prohibited Discrimination in Law Practice Management and Operation      
Rule 8.5           Disciplinary Authority; Choice of Law       

Each proposed rule is presented in a comparison table format preceded by a summary cover sheet and a general introduction. The comparison table format has three columns. The first column presents the clean version of a Model Rule counterpart, if any. The second column presents a redline draft of the proposal with redline legislative changes to the Model Rule counterpart. The third column presents the Commission's explanation of each deviation from the Model Rule language. (If there is no Model Rule counterpart but there is a California rule counterpart, or if the Model Rule counterpart has been rejected in favor of the current California rule, then the chart compares the proposed rule to the current California rule.)

This format is intended to simplify the consideration of any changes to the Model Rules and to make plain the Commission's rationale for such changes. After the comparison table in the materials, provided are: the clean version of the proposed rule; a chart that summarizes the initial public input received on the rule; and an excerpt that summarizes selected state variations. A redline rule draft, comparing the proposed conditionally-adopted draft to the initial public comment version, is also included where substantive changes have been made to a rule following consideration of public comment. In some instances, a statement from a minority of the Commission also will be included.

In addition to the 69 proposed new or amended rules, there are Model Rules, or significant subparts of Model Rules, which were considered by the Commission but are not recommended for adoption. Listed below in numerical order by Model Rule number are the Model Rules that are not recommended for adoption.

List of Model Rules Considered but not Recommended for Adoption:

Model Rule                   Title                                                                                                            
Rule 1.3                 Diligence       
Rule 1.8(d)             (re Literary or Media Rights)      
Rule 1.8(i)              (re Proprietary Interest in the Subject Matter of Representation)       
Rule 1.10(a)(2)              Imputation of Conflicts of Interests: General Rule (re use of anethical wall or screen to rebut imputation) UPDATED 5-17-10     
Rule 1.18(d)(2)(i)-(ii)              Duties to Prospective Clients (re use of anethical wall or screen to rebut imputation) UPDATED 5-17-10     
Rule 2.3                  Evaluation for Use by Third Parties       
Rule 3.2                  Expediting Litigation      
Rule 4.1           Truthfulness in Statements to Others UPDATED 5-17-10     
Rule 4.4(a)             (re Lawyer Conduct That Has No Substantial Purpose Other Than to
                               Embarrass, Delay, or Burden a Third Person)       
Rule 5.7                  Responsibilities Regarding Law Related Services      
Rule 6.1           Voluntary Pro Bono Publico Service UPDATED 5-17-10       
Rule 7.6                  Political Contributions to Obtain Government Legal Engagements or
                               Appointments by Judges       

The Commission also considered concepts for rules that have no counterpart in either the Model Rules or the current California rules. The concepts that were considered but are not being recommended for adoption are listed below.

List of Concepts for New Rules Considered but not Recommended for Adoption:

Concept of a Possible New Rule
Hourly/Time Billing Rule
Class Action Rule
Law Firm Discipline Rule
Good Faith Reliance on Advice of Counsel Rule
Waiver of Attorney-Client Privilege Rule
Use of Private Will Depositories
Practice Succession Plan
Lawyer Acting As Lobbyist

The above listed Model Rules and rule concepts not recommended for adoption are summarized in an attached memorandum. Where applicable, a Commission minority statement urging adoption of a Model Rule or rule concept is included. Public input is encouraged on this important aspect of the Commission's recommendation.

FISCAL/PERSONNEL IMPACT

No unbudgeted fiscal or personnel impact.

NOTE

Comments may be sent in writing to the address below or submitted online.
(See Rules Revision Commission Proposed Rules Page: proposed rule revisions).

ATTACHMENTS
SOURCE

Board of Governors, Open Agenda Item MARCH 132

COMMENT DEADLINE

June 15, 2010

DIRECT COMMENTS TO:

Audrey Hollins
Office of Professional Competence, Planning and Development
The State Bar of California
180 Howard Street
San Francisco, CA 94105
415-538-2167
415-538-2171 Fax