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Ethics News Archive

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This page contains past news on the Rules of Professional Conduct and other significant developments. Ethics resources are provided on the topics listed below which include statutes, opinions, and articles.

Rules of Professional Conduct Related Archived News

  • Rule revisions to Rule 1.1 [Competence] and Rule 5.4 [Financial and Similar Arrangements with Nonlawyers]
  • Rule revisions regarding post-conviction discovery file retention
  • Comprehensive revision to the rules, operative November 1, 2018

Other Archived News

  • Lawyer referral service rules and statutes interpreted
  • Law firms affected by natural disaster or catastrophic event
  • Ethical obligations in representing a marijuana business

 

Rules of Professional Conduct Related Archived News

Rule revisions to Rule 1.1 [Competence] and Rule 5.4 [Financial and Similar Arrangements with Nonlawyers]

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.

Rule revisions regarding post-conviction discovery file retention

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.

Comprehensive revision to the rules, operative November 1, 2018

On May 10, 2018, the California Supreme Court issued an order approving the new and amended Rules of Professional Conduct effective Nov. 1, 2018.

Other resources

  • Supreme Court Approves First Comprehensive Revision to Attorney Rules of Professional Conduct in Twenty-Nine Years, California Courts News Release, May 2018
  • The State Bar will implement nearly 70 new Rules of Professional Conduct, effective November 2018, State Bar of California News Release, May 2018
  • New Rules of Conduct (Part I): The Disruptive and Controversial, Daily Journal, Neil Wertlieb, May 2018
  • New Rules of Conduct (Part II): The Uncontroversial, But Important, Daily Journal, Neil Wertlieb, May 2018
  • New Rules (Part III): The Entirely New Rules, Daily Journal, Neil Wertlieb, June 2018
  • The New Conduct Rules: A Snapshot, Daily Journal, Wendy Wen Yun Chang, May 2018

Other Archived News

Lawyer referral service rules and statutes interpreted

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.

Case Law

  • Jackson v. Legalmatch.com (2019) 42 Cal.App.5th 760, 773 [rev. denied, Jackson v. Legalmatch.com, 2020 Cal. LEXIS 1699 (Mar. 11, 2020).]: An online business engaged in lawyer referral activity must be certified by the State Bar of California

Ethics Opinions

  • San Diego County Bar Association Ethics Opinion 2021-1: Circumstances when a lawyer may join a networking group that is not registered with the State Bar of California as a licensed attorney referral service

Law practices affected by natural disaster or catastrophic event

Attorneys should consider their ethical obligations if th eir law practice has been affected or the attorney is forced to close their practice due to a natural disaster or other catastrophic events.

Rules and statutes

  • Rule of Professional Conduct 1.1: Competence
  • Rule of Professional Conduct 1.3: Diligence
  • Rule of Professional Conduct 1.4: Communication with Clients
  • Rule of Professional Conduct 1.15: Safekeeping Funds and Property of Clients and Other Persons
  • Rule of Professional Conduct 1.16: Declining or Terminating Representation
  • Rule of Professional Conduct 5.1: Responsibilities of Managerial and Supervisory Lawyers
  • Rule of Professional Conduct 5.2: Responsibilities of a Subordinate Lawyer
  • Rule of Professional Conduct 5.3: Responsibilities Regarding Nonlawyer Assistants
  • Business and Professions Code § 6068: Duties of Attorney
  • Business and Professions Code §§ 6180 et seq.: Cessation of Law Practice
  • Business and Professions Code §§ 6190 et seq.: Incapacity to Attend to Law Practice Death of an Attorney of Record
  • Code of Civil Procedure § 286: Death of an Attorney of Record

Ethics opinions

  • State Bar of California Formal Opinion 2001-157: Retention of Client Files
  • American Bar Association Formal Opinion 482: Ethical Obligations Related to Disasters
  • Florida Bar Professional Ethics Opinion 72-37: Safeguarding Client Property
  • Mississippi Bar Ethics Opinion No. 254: Retention of Clients Property and Files
  • New York City Bar Formal Opinion 2010-01: Use of Client Engagement Letters To Authorize the Return or Destruction of Client Files at the Conclusion of a Matter
  • New York City Bar Formal Opinion 2015-6: Duty to Notify Clients when their Files are Accidentally Destroyed
  • Pennsylvania Bar Association Formal Opinion 2020-300: Ethical Obligations for Lawyers Working Remotely
  • Florida Bar Standing Committee on the Unlicensed Practice of Law Advisory Opinion (2021): Out-of-state Attorney Working Remotely from Florida Home
  • Delaware State Bar Association Formal Opinion 2021-1: Working Remotely from Another Jurisdiction in Which the Lawyer is Not Licensed
  • Bar Association of San Francisco Formal Opinion 2021-1: Is a lawyer, who is licensed in one or more jurisdictions but practices law remotely from another jurisdiction where the lawyer resides and is not licensed, engaged in the unauthorized practice of law?

Other resources

  • Coronavirus Updates Media Advisory, California Courts Newsroom
  • Essential Critical Infrastructure Workers, California Coronavirus (COVID-19) Response
  • The ABA Coronavirus (COVID-19) Task Force, American Bar Association
  • Quandaries and Quagmires: Legal Ethics, Risk Management in Pandemic, Minnesota Lawyer, March 2020
  • Legal Ethics in the Age of the Coronavirus, District of Columbia Bar Association, March 2020
  • 4 Ethics Tips For Lawyers As Coronavirus Spreads, Law360.com, March 2020
  • How to Ensure Your Law Firm Is Prepared for the Coronavirus Crisis, JD Supra, March 2020
  • Legal Ethics and Coronavirus: Tech Solutions for Health, Safety, and Efficiency, Justia Marketing and Tech Blog, March 2020
  • Preparing The Workplace For A Pandemic, California Bar Journal, September 2008
  • State Bar Attorney Surrogacy Model Agreement, State Bar of California
  • American Bar Association Committee on Disaster Response and Preparedness Website
  • Ethical Obligation to Clients in the Wake of a Disaster, American Bar Association, October 2017
  • After Disaster Strikes: A Checklist, The Florida Bar Practice Resource Institute, 2016
  • Surviving a Disaster: A Lawyer's Guide to Disaster Planning, American Bar Association, 2011
  • Reconsidering Lawyers' Ethical Obligations In The Wake Of A Disaster, Sandra S. Varnado, Dane S. Ciolino, 19 No. 4 Prof. Law. 8, 2009
  • Surviving Disasters: Questions and Considerations for Law Firms Preparing Business Continuity Plans, Lexis Nexis, 2006
  • The Ethical Duties of Disaster Preparation, California Bar Journal, February 2006
  • Law Office Disaster Preparedness: The Liability and Ethics of Attorneys, The Florida Bar Journal, May 2006
  • Hurricane Katrina: The Duties And Responsibilities Of An Attorney In The Wake Of A Natural Disaster, Brenna G. Nava, 37 St. Mary's L.J. 1153, 2006 [need Lexis account to access]
  • Disaster Recovery for Law Firms, Excerpt from The Essential Formbook: Comprehensive Management Tools for Lawyers Volume IV, American Bar Association Law Practice Management Section, 2004

Ethical obligations in representing a marijuana business

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.

Rules and statutes

  • Rule of Professional Conduct 1.0: Purpose and Function of the Rules of Professional Conduct
  • Rule of Professional Conduct 1.2.1: Advising or Assisting the Violation of Law
  • Business and Professions Code § 6067: Oath
  • Business and Professions Code § 6068: Duties of Attorney
  • Business and Professions Code § 6106: Moral Turpitude, Dishonesty or Corruption Irrespective of Criminal Conviction
  • Evidence Code § 956: Services of Lawyer Obtained to Aid in Commission of Crime or Fraud
  • Assembly Bill No. 1159 (2017-2018 Reg, Sess, § 2): Amendments to Evidence Code section 956 (Services of Lawyer Obtained to Aid in Commission of Crime or Fraud)

Ethics opinions

  • State Bar of California Formal Opinion 2020-202: Advising a Marijuana Business
  • Bar Association of San Francisco Ethics Opinion 2015-1: Representing a Client in Respect to a Medical Marijuana Enterprise in California
  • Los Angeles County Bar Association Ethics Opinion 527: Legal Advice and Assistance to Clients Engaged in Marijuana Businesses
  • California Committee on Judicial Ethics Opinion 2017-010: Extrajudicial Involvement in Marijuana Enterprises
  • Connecticut Bar Association Informal Opinion 2013-02: Providing Legal Services to Clients Seeking Licenses Under the Connecticut Medical Marijuana Law
  • Illinois State Bar Association Professional Conduct Advisory Opinion 14-07: Providing Services to a Client on Legal Matters Generated by the Compassionate Use of Medical Cannabis Pilot Program Act
  • State Bar of Arizona Ethics Opinion 11-01: Scope of Representation
  • State of Maine Ethics Opinion 199: Advising clients concerning Maine’s Medical Marijuana Act
  • State of Maine Ethics Opinion 215: Attorneys' Assistance to Clients Under Rule 1.2 Regarding the Use and Sale of Medical and Recreational Marijuana
  • The Supreme Court of Ohio Opinion 2016-6: Ethical Implications for Lawyers under Ohio's Medical Marijuana Law
  • Washington State Bar Association Ethics Opinion 201501: Providing Legal Advice and Assistance to Clients Under WA State Retail Marijuana Laws

Other resources

  • California Evidence Code Section 956(b): How to Preserve the Attorney-Client Privilege Over Advice Concerning Medical and Adult-Use Cannabis, Fox Rothschild LLP, January 2018
  • Attorneys and Marijuana, California Lawyer, December 2016
  • Dazed and Confused: Legal and Ethical Pitfalls in Marijuana Law, American Bar Association, Winter 2017
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