This page contains selected ethics resources for attorneys on the topics listed below which include statutes, opinions, and articles.
Law firms affected by natural disaster or catastrophic event Comprehensive revision to the rules, operative November 1, 2018 Ethical obligations in representing a marijuana business Rule revisions regarding post-conviction discovery file retention Rule revisions to Rule 1.1 [Competence] and Rule 5.4 [Financial and Similar Arrangements with Nonlawyers] Lawyer referral service rules and statutes interpreted
Attorneys should consider their ethical obligations if their law practice has been affected or the attorney is forced to close their practice due to a natural disaster or other catastrophic events.
On May 10, 2018, the California Supreme Court issued an order approving the new and amended Rules of Professional Conduct effective Nov. 1, 2018.
As the law pertaining to the legalization of the cultivation, sales, and use of marijuana continues to change, questions arise as to whether a lawyer advising a client on this type of business under state law runs afoul of professional conduct rules given that such activities are illegal under federal law. The attorney should consider their ethical obligations before representing these types of businesses.
California Rule of Professional Conduct 1.16 [Declining or Terminating Representation] and Rule 3.8 [Special Duties of a Prosecutor] are amended effective June 1, 2020. These amendments resulted from legislation signed into law in 2018. Assembly Bill 1987 amended California Penal Code section 1054.9 by expanding the right to access post-conviction discovery materials to include cases where the defendant is convicted of a serious or violent felony resulting in a sentence of 15 years or more. The law also added an obligation on trial counsel in such matters to retain a copy of a former client’s files for the term of the client’s imprisonment. The legislation also requested that the State Bar “study the issue of closed-client file release and retention by defense attorneys and prosecutors in criminal cases.” The Committee on Professional Responsibility and Conduct studied the issue and recommended amendments to rules 1.16 and 3.8. After approval by the Board of Trustees, the amendments were filed with the Supreme Court. On April 23, 2020, the Court approved the amendments as submitted.
Rule 1.16 addresses an attorney’s duties at the end of the representation and references other Penal Code provisions applicable to releasing client materials. A new sentence has been added to Comment [5] of the rule that directs defense attorneys to be aware of the file retention duties contained in section Penal Code section 1054.9(g).
Rule 3.8 addresses the special duties of a prosecutor, including the duty to disclose evidence that creates a reasonable likelihood that a person convicted of a crime did not commit that crime. Two new sentences to Comment [7] have been added that reference the existing obligations regarding the disposition of evidence in criminal matters and compliance with file preservation orders. The addition of a reference to statutes governing the preservation of evidence and to selected case law regarding court-imposed preservation of evidence orders will help ensure prosecutors are aware of these important obligations.
On February 18, 2021, the Supreme Court of California approved amendments to California Rule of Professional Conduct 1.1 [Competence] and Rule 5.4 [Financial and Similar Arrangements with Nonlawyers], effective March 22, 2021 (Supreme Court case no. S266066). The proposals to amend these rules were a result of the Task Force on Access Through Innovation of Legal Services’ (ATILS) report and recommendations to the Board of Trustees on March 12, 2020. At that meeting, the Board approved ATILS’ recommendations for amendments to rules 1.1 and 5.4 of the California Rules of Professional Conduct for a 60-day public comment period. The Board directed the State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) to receive and review the public comments submitted. Following consideration of public comments, COPRAC recommended Board adoption of rule 1.1 as originally proposed by ATILS and recommended Board adoption of rule 5.4 as revised by COPRAC. The Board of Trustees approved COPRAC’s recommendations and the proposed rules were filed with the Supreme Court on December 11, 2020. The Supreme Court approved rule 1.1 as submitted and approved rule 5.4 as modified by the Court.
Rule 1.1 addresses a lawyer’s duty of competence. The new Comment to rule 1.1 provides that a lawyer’s duty of competence encompasses a duty to keep abreast of the changes in the law and law practice, including the benefits and risks associated with relevant technology.
Rule 5.4 addresses financial and similar arrangements with nonlawyers. The amendments to rule 5.4 adds a new provision which expands the existing exception for fee sharing arrangements with a nonprofit organization by adding an exception which provides where the legal fee is not court awarded, but arises from settlement or other resolution of the claim or matter, the lawyer may share or pay the legal fee to the nonprofit organization, provided that the nonprofit organization qualifies under section 501(c)(3) of the Internal Revenue Code and the lawyer complies with requirements to protect the client.
Only lawyer referral services certified by the State Bar may lawfully operate in California. The regulation of lawyer referral services is found in the State Bar Act Business and Professions Code sections 6155 and 6156. Lawyers must also comply with the California Rules of Professional Conduct that address referral activity, including compensation for referrals. See, e.g., rules 5.4(e) and 7.2(b). Recent authorities have interpreted these laws and clarified the acts constituting lawyer referral activity.