SUBJECT

Seven proposed new or amended Rules of Professional Conduct of the State Bar of California developed by the State Bar’s Special Commission for the Revision of the Rules of Professional Conduct.

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.  The State Bar has assigned a special commission to conduct a thorough study of the rules and to recommend comprehensive amendments.

At its July 22 - 24, 2010 meeting, the Board of Governors considered a Commission request that the Board adopt all of the Commission’s proposed new and amended rules. Board consideration of this request followed the conclusion of a comprehensive public comment distribution of all of the Commission’s proposed rules that ended on June 15, 2010.   The Commission requested Board adoption of sixty-eight proposed rules.  Of these sixty-eight proposed rules, sixty were adopted and one proposed rule, Rule 8.3 (re reporting misconduct), was not adopted.  For the remaining seven rules, the Board authorized an additional 30-day public comment period to seek input on changes made to those rules after the comment period that ended on June 15, 2010.

PROPOSAL: 

The seven proposed rules are listed below by proposed new rule number.  Where applicable, the rule number of the comparable current California rule is indicated in brackets.  Each of these proposed rules is subject to change following consideration of the public comment received.

Rule                 Title
Rule 1.0.1         Terminology [1-100(B)]
Rule 2.1            Advisor [N/A]
Rule 3.3            Candor Toward the Tribunal [5-200]
Rule 3.8            Special Responsibilities of a Prosecutor [5-110] (At the direction of the Board of Governors, public comment is being solicited only as to paragraph (d).)
Rule 4.2            Communications with a Represented Person [2-100]
Rule 5.4            Financial and Similar Arrangements with Nonlawyers [1-310, 1-320, 1-600]
Rule 8.4            Misconduct [1-120]

Each of the above proposed rules 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 an American Bar Association (ABA) Model Rule counterpart, if any.  The second column presents a redline draft of the Commission’s proposal that shows changes to the ABA Model Rule counterpart. The third column presents the Commission’s explanation of each deviation from the ABA Model Rule language.  In part, this format is intended to facilitate the consideration of any changes to the ABA Model Rules and to make plain the Commission’s rationale for such changes. In addition, following each ABA Model Rule comparison table is the clean version of the Commission’s proposed rule, a comparison version of the proposed rule in redline/strikeout style showing the revisions to the previous public comment version of the rule, and an excerpt that summarizes selected state variations.

At the Board’s July 22 – 24, 2010 meeting, the Board Governors did not adopt the following rules that were included in the public comment proposal that ended on June 15, 2010.  

Rule                 Title
Rule 4.4            Duties Concerning Inadvertently Transmitted Writings
Rule 8.3            Reporting Professional Misconduct

FISCAL/PERSONNEL IMPACT:

No unbudgeted fiscal or personnel impact.

NOTE:

Comments may be sent in writing to the address below or submitted online to: Public Comment Form 

ATTACHMENTS:
SOURCE:

State Bar Special Commission for the Revision of the Rules of Professional Conduct 

COMMENT DEADLINE:

 5 p.m., Aug. 25, 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