Section 1. Establishment
Section 2. Members and Advisors
Section 3. Officers
Section 4. Meetings
Section 5. Voting
Section 6. Responding to Opinion Requests
Section 7. Effect of Opinions
Section 8. Revision of the Rules of Professional Conduct or Other Laws Governing the Conduct of Attorneys
Section 9. State Bar Staff
Section 10. Conflicts
The Standing Committee on Professional Responsibility and Conduct (hereinafter "the committee") is the successor to the Committee on Professional Ethics established by resolution of the Board of Trustees of the State Bar of California adopted September 29, 1964. The charge of the Committee on Professional Responsibility and Conduct may be found at section 15 of article 4 of this chapter.
(Source: Board of Governors' Resolutions, September 1964, July 1979, October 1994, December 2004.)
(a) The membership of the committee shall consist of fifteen (15) members (including a chair and vice-chair) and an advisor. Members shall be appointed by the board for a three (3) year term of office. The chair, vice-chair and advisor shall be appointed or reappointed by the Board of Trustees for a one (1) year term of office. The advisor shall be selected from former officers of the committee.
(b) Each Committee year, the Committee shall select a Nominations Subcommittee. The Subcommittee shall consist of the Chair and Vice-Chair and three other members of the Committee selected by Chair.
(1) Any materials submitted by applicants shall be made available for review by Committee members at the offices of the State Bar in Los Angeles and San Francisco at the same time the materials are distributed to the Nominations Subcommittee. Staff shall advise the entire Committee when such materials are available for review. In addition, one set of applicant materials shall be presented to the Committee's membership for review at the first Committee meeting each year which follows the materials’ distribution to the Nominations Subcommittee and also at any meeting where nominations are to be discussed.
(2) Following any interviews the Subcommittee may conduct, the Subcommittee will rank the applicants in order of preference and shall submit those applicant rankings to the Committee for its consideration at a meeting. After considering the Subcommittee’s recommendations, the Committee shall rank the applicants in order of preference and submit those rankings to the Board Committee In evaluating potential members, the Committee uses the following criteria, though no one factor is dispositive: (1) prior experience in the legal ethics field; (2) time and energy to undertake the significant responsibilities of Committee membership; (3) written and oral communication skills; (4) factors lending diversity to the Committee, including diversity based on race, sex, color, national origin and sexual orientation, as well as location and field of practice, years in practice (including status as a California Young Lawyer), and size of firm (if applicable); and (5) prior volunteer experience, particularly involvement in legal and other professional groups. For public members, the Committee values the ability to contribute a client perspective to the committee’s deliberations.
(c) Any member who fails to attend more than one-third of the regularly scheduled meetings during a committee year, without good cause, will be deemed to have resigned. A member is considered to have attended a meeting when the member is physically present for at least two thirds of the actual duration of the meeting, unless excused for good cause. When a member fails timely to complete an assignment for a meeting, without good cause, the member will be deemed to have missed the meeting, given the importance of pre-meeting preparation to the Committee’s business. The Chair and Vice-Chair, in consultation with staff and in accordance with State Bar procedures, shall decide jointly whether and when to deem a member to have resigned.
(Source: Board of Governors' Resolutions, July 1979, July 1988, March 1992, October 1994, September 1999, December 2004; Board of Trustees Resolution, November 2016.)
The officers of the committee shall be the chair and vice-chair appointed or reappointed by the Board of Trustees from the committee.
(Source: Board of Governors' Resolutions, July 1979, March 1992, December 2004.)
Committee meetings shall be held in northern and southern California on the call of the chair. Subject to budget constraints, no fewer than four (4) meetings shall be held annually. At the discretion of the chair, meetings may be held by video-conference or other real-time electronic means of communication. A quorum shall consist of eight (8) members of the committee. A majority vote of those members voting shall control, except for formal ethics opinions, which require the affirmative vote of a majority of the entire Committee (see section 6(i)).
(Source: Board of Governors' Resolution, July 1979, September 1999, December 2004.)
Each member has one vote. The advisor may not vote but may participate in all of the committee’s deliberations. Proxy voting shall not be allowed. Members shall be allowed to vote at a meeting by telephone, if telephone communication is reasonably available.
(Source: Board of Governors’ Resolution, December 2004; Board of Trustees Resolution, November 2016.)
(a) Committee’s options for responding to opinion requests. When presented with a request that the committee issue a formal opinion, the committee may elect (a) not to opine; (b) to issue a private letter opinion to the requestor; or (c) to issue a formal, published opinion. The committee may accept requests for an opinion from anyone, including the public, members of the Bar, the committee’s own members and persons affiliated with the Bar, such as members of Board of Trustees and State Bar staff. Requests shall be presented to the committee for resolution along with a recommendation from the chair, if the chair so elects.
(b) Criteria for issuing formal opinions. The committee may determine to proceed with the development of a formal opinion when a majority of the voting members of the Committee (not just a majority of those present at a meeting) determines that a request setting forth hypothetical facts presents issues of general interest to the Bar and/or the public and that the committee has satisfactorily resolved the issues presented by the hypothetical facts. However, the committee shall not issue a formal opinion when any of the following circumstances exist:
(1) The requesting attorney is a member of a local bar association which has an ethics committee, provided that the committee may respond to the inquiry if forwarded by a local bar association ethics committee or if the request concerns an ethics problem on which there is a division of views among local bar association ethics opinions.
(2) There is a pending State Bar complaint, investigation, proceeding or litigation concerning the subject of the request.
(3) The request constitutes a complaint against member(s) of the State Bar.
(4) The request involves procedures employed by the bar in processing complaints against members of the State Bar.
(5) The request involves questions or issues, the resolution of which turns principally on law unrelated to the law governing lawyers.
(6) Where it is known that the request involves a situation in litigation or concerns threatened litigation or involves the propriety of sanctions within the purview of the courts, such as contempt.
(7) The chair and vice-chair have jointly determined that it would be inadvisable to respond to the request.
(Source: Board of Governors' Resolution, July 1979, December 2004.)
(c) Letter Opinions. If the committee elects not to issue a formal opinion in response to a request, then the committee may issue a private letter opinion or decline to opine. In either event, the requestor shall be notified by letter. The committee typically issues letter opinions when there is no policy reason for the committee to decline comment on the request and the request is simple, routine or otherwise not of general interest to the Bar’s members. The letter shall be drafted by the chair or by a member assigned by the chair. The committee may approve the opinion by affirmative vote as provided in these rules.
(Source: Board of Governors' Resolution, July 1979, December 2004; Board of Trustees Resolution, November 2.)
(d) Changed circumstances. If, at any time after an opinion request has been assigned for drafting as a formal opinion, but before final publication, the committee shall decline to act further on the request and no opinion shall be published if any of the circumstances listed in section (b), subdivisions (1) through (6) above, come to light.
(e) Format of Formal Opinions. Drafts of formal opinions shall be prepared by the member or members assigned by the chair or staff. The drafter shall ordinarily circulate their draft to the committee in a pre-meeting agenda packet distributed by the staff. Each opinion shall set forth:
(1) A statement of issue or issues addressed;
(2) A concise digest summarizing the committee’s conclusions and reasoning;
(3) Hypothetical facts of the ethical question presented in a general manner without identification of the requesting attorney or any details of the request which would permit such identification;
(4) The Rules of Professional Conduct or other authorities relied upon;
(5) An analytical discussion of the applicable rules applied to the hypothetical facts; and
(6) A conclusion.
(Source: Board of Governors' Resolution, July 1979, December 2004; Board of Trustees Resolution, November 2016.)
(f) Dissenting Opinions. While the Committee typically issues opinions on the basis of consensus, or at least substantial majority vote, a member may elect to have notice of his or her dissent included with the opinion. In this event, the number of dissenters, but not their names, will be noted in the final opinion. In the rarest of cases, a dissenting opinion or opinions explaining the reasons for any dissent may be added to the opinion, in the discretion of the chair. As with the opinion of the Committee, the dissenting opinion will not be attributed to particular authors but will note on how many members’ behalf the dissent is filed.
(g) Publication of Proposed Formal Opinions for Public Comment. The committee shall publish proposed formal opinions, and provide an opportunity for public comment of no less than 60 days, before approving a formal opinion for final publication. Upon a vote of the committee, the formal opinion shall be distributed to members of appropriate committee or committees of the Board of Trustees, key individuals on the State Bar staff who participate in regulatory activities, the chairpersons of local bar association ethics committees and, in the discretion of the chair, other interested persons or entities, advising them that the hypothetical is under consideration by the committee for a formal opinion and requesting their comments. Proposed opinions published for public comment shall be made available to the public through means reasonably available to the committee, such as through the committee staff and the State Bar website.
(h) Issuance of Formal Opinions Following Public Comment. After considering any public comment received on a draft formal opinion, the committee may vote to issue the opinion as drafted, to modify the opinion and approve the modified opinion for publication, to decline to opine or to issue a private letter opinion. In the event a proposed formal opinion is modified after publication for public comment in such a manner as to reflect the committee’s view that additional ethical duties or obligations apply to the hypothetical facts, then the proposed formal opinion shall be published again for public comment as provided in section (g).
(i) Majority Vote Required. Proposed opinions may be approved pursuant to sections (g) and (h) only by a majority of all voting members of the committee, at a meeting.
(j) Transmission to Requestor and Board Committee. Once the committee has approved a formal opinion for publication pursuant to section (i), the formal opinion shall be issued to the requesting party and the issue of whether the formal opinion shall be published shall be placed on the agenda of the next succeeding meeting of the Board Committee on Regulation and Discipline for decision.
(k) Publication and Maintenance of Opinions. Once approved pursuant to section (j), formal opinions shall be published in State Bar publications, including the State Bar web site, as space is available, and the committee may cause its formal opinion or a summarization thereof to be published in other appropriate publications. All approved letter and formal advisory opinions shall be maintained on file at all State Bar offices and shall be available to any member of the bench, bar or public upon request. A reasonable charge to defray the costs of reproduction of such opinions and postage may be required.
All opinions issued by the committee express only the judgment of the committee and are advisory only. Each letter and formal opinion shall conclude with the following statement:
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Trustees, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
The committee shall, upon reference of the Board of Trustees or its secretary, or on its own initiative with the concurrence of the Board Committee, study and submit recommendations to the Board of Trustees regarding proposed additions or amendments to or repeal of Rules of Professional Conduct of the State Bar or other laws governing the conduct of attorneys. In formulating its recommendations to the board, the committee shall cause its proposals to be published and solicit written comments thereon and, as directed by the Board of Trustees, conduct public hearings thereon.
(a) The chair shall:
(1) Advise the staff of any failure to act pursuant to section 6(a) of this article so that staff can advise the requesting attorney.
(2) a copy of all correspondence by, or to, any committee member or advisor concerning committee work.
(3) Provide the staff with copies of draft and final letter opinions.
(4) Forward approved formal opinions to the staff for issuance and publication, as appropriate.
(b) The staff shall:
(1) Receive requests for opinions from requesting attorneys and references from the Board of Trustees or its secretary and transmit them to the chair, vice-chair and the committee.
(2) Advise requesting attorneys of the existence, functions and procedures of the committee.
(3) Provide copies of requests for opinions to the members of the committee.
(4) Following receipt of approved formal opinions and draft letter opinions, advise the chair:
(A) Of any circumstances arising during the period in which the request was being processed requiring or warranting committee inaction pursuant to section 6(b) of this article; and
(B) Of any other reasons militating against issuance of the opinion.
(5) Issue approved formal opinions to the requesting attorney unless the chair withdraws the opinion for committee reconsideration.
(6) Cause opinions issued by the committee to be published as appropriate.
(7) Maintain all official files and records of the committee and make such files available to interested members of the bench and bar as appropriate.
(8) Assist the committee in performing its functions.
(a) Members must disclose to the Committee any relationship with an inquirer.
(b) Members are encouraged to disclose any other relationship or interest that might have, or appear to have, a significant effect on the Committee’s deliberations or decisions.
(c) A member may disqualify himself or herself from voting and/or deliberations. However, members are not required to do so. In fact, members are encouraged to participate once any relationship or interest is disclosed to the Committee so that the Committee will have the benefit of all members’ participation, input and expertise.
(Source: Board of Governors’ Resolution, December 2004.)