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.
Proposed amendments to the Rules of Professional Conduct of the State Bar of California
By statute, the Board of Trustees (“Board”) has the authority to adopt amendments to the Rules of Professional Conduct of the State Bar of California that are binding upon all members of the State Bar once those rules are approved by the California Supreme Court. (Business and Professions Code sections 6076 and 6077.) On May 1, 2017, the Supreme Court of California (“Supreme Court”) issued an order on a State Bar request to approve proposed amendments to rules 5-110 and 5-220 of the Rules of Professional Conduct of the State Bar of California. These proposals addressed the special responsibilities of a prosecutor in a criminal matter. The Supreme Court granted approval in part and denied in part. The approved aspects of revised rules 5-110 and 5-220 were made operative on May 1, 2017.
Proposed rule 5-110(D) and related discussion paragraphs concerning pretrial disclosure obligations were not approved by the Supreme Court. Likewise, proposed rule 5-110(E) regarding the conditions that must be present before a prosecutor may issue a subpoena to a lawyer to present evidence about a current or former client was not approved. Although these aspects of the State Bar’s proposal were not approved, the Supreme Court’s order provided instructions for the State Bar’s further consideration. The Board assigned this matter to the State Bar’s Commission for the Revision of the Rules of Professional Conduct (“Commission”) for study and development of revised rule proposals. The Commission met on May 25, 2017 to carry out the assignment. The Commission developed alternative revised rule drafts (Alternative A and Alternative B) to address rule 5-110(D) and tabled until its meeting in July the consideration of rule 5-110(E) because the potential development of a subpoena rule applicable to all lawyers would not be promulgated as a part of rule 5-110.
The purpose of Alternative A is to obtain public comment on the language suggested in the Supreme Court’s order. This version implements only two changes to that language.
First, at the Commission’s meeting the Commission was informed that the Supreme Court subsequently considered a modification to the sentence that the Court originally suggested for addition at the end of paragraph (D). This modification adds the words “knows or reasonably should know.” As modified the sentence would read: “This obligation includes the duty to disclose information that a prosecutor knows or reasonably should know casts significant doubt on the accuracy or admissibility of witness testimony or other evidence on which the prosecution intends to rely.”
Second, the Supreme Court’s order questioned the meaning of the reference to “cumulative disclosures of information” in Discussion paragraph  and in response the Alternative A draft of the rule deletes this reference. The Commission believes that the issue of cumulative disclosures adds unnecessary ambiguity and recommends deletion of that concept.
Alternative B is the Commission’s recommended proposal for Rule 5-110. Like the Alternative A draft, this version deletes the reference to “cumulative disclosures of information” in Discussion paragraph . However, for the sentence that the Supreme Court suggested for addition at the end of paragraph (D), the Commission is recommending that the sentence be revised and moved to Discussion paragraph . The Commission’s modifications are intended to frame that sentence as an example of impeachment information that would trigger the disclosure duty and avoid any potential interpretation that the sentence functions to limit the governing “tends to negate” standard set forth in paragraph (D). As this sentence is intended to be an example, the Commission believes it is properly placed in the Discussion rather than in paragraph (D). In addition, some other minor changes are implemented.
At its meeting on May 30, 2017, the Board’s Committee on Regulation and Discipline considered revised rule proposals drafted by the Commission for rule 5-110(D) and authorized a 30-day public comment period on the proposals.
Commission for the Revision of the Rules of Professional Conduct of the State Bar of California.
June 29, 2017
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:
Office of Professional Competence, Planning and Development
The State Bar of California
180 Howard St.
San Francisco, CA 94105-1639