Proposed Amendments to the Rules of Professional Conduct (August 2017)

The State Bar seeks comments on three alternatives for draft rules regarding when attorneys may issue subpoenas to other attorneys.

Deadline: Aug. 28, 2017

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

Subject

Proposed Amendments to the Rules of Professional Conduct of the State Bar of California

Background

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 address 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. These proposed rules were submitted to the Supreme Court on an expedited basis separate from the State Bar’s proposed comprehensive revisions to the entire rules that were submitted to the Court on March 30, 2017. Supreme Court action on the State Bar’s comprehensive rule revisions is pending.

Discussion/Proposal

As submitted to the Supreme Court, rule 5-110 included proposed paragraph (E) which provides that a prosecutor shall not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege or work product protection; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information. The proposed rule provision tracked the language of ABA Model Rule 3.8(e), which is applicable only to prosecutors. In its May 1, 2017 order, the Supreme Court directed the State Bar to reconsider whether “this is an ethical obligation that should be imposed on all attorneys, not only prosecutors.” The Supreme Court also directed the State Bar to consider whether the substitution of the terms “reasonably necessary” for “essential” under paragraph (E)(2), and “reasonable” for “feasible” under paragraph (E)(3) would be appropriate. 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 July 5, 2017 to carry out this assignment. Following study, the Commission developed three alternative rule revisions: Alternative 1 (a revision to proposed rule 3.4 stating a subpoena restriction imposed on all lawyers), Alternative 2 (a revision to proposed rule 3.8 that would apply only to prosecutors), and Alternative 3 (a revision to proposed rule 3.8 that would also apply only to prosecutors but would have a narrower scope than Alternative 2).

The Commission drafted Alternative 1 to obtain public comment on a proposed subpoena rule revision that would apply to all lawyers and would include as an option the language substitutions in the Supreme Court’s order. This proposal would modify proposed rule 3.4 (entitled “Fairness to Opposing Party and Counsel”).Rule 3.4 was adopted by the Board and submitted to the Supreme Court on March 30, 2017 as part of the State Bar’s proposed comprehensive revisions to the rules. Because Alternative 1 is intended to be a rule generally applicable to all lawyers, it would not be appropriate to place this ethical obligation in proposed rule 3.8 (the counterpart to current rule 5-110 in the Bar’s comprehensive revisions).

Alternative 2 is a proposal for a revised paragraph (e) of proposed rule 3.8 governing subpoenas of any lawyer of an accused, including an accused’s lawyer in any past or present civil matter. Alternative 2 also includes as options the language substitutions in the Supreme Court’s order. Unlike Alternative 1, Alternative 2 retains the limited scope of the Board’s original proposed rule as an ethical obligation imposed only on a prosecutor in a criminal matter. Because this rule would apply only to a subpoena issued by a prosecutor in a criminal matter or a grand jury proceeding, it is appropriate to place this duty in the rule governing the special responsibilities of a prosecutor. However, the Commission is not recommending expedited action by the Board or the Court to implement this change in current rule 5-110. If this Alternative 2 ultimately is adopted by the Board and approved by the Supreme Court, then this change would modify proposed rule 3.8 that was adopted by the Board and submitted to the Supreme Court on March 30, 2017 as part of the State Bar’s proposed comprehensive revisions to the rules.

Alternative 3 is a proposal for a revised paragraph (e) of Proposed Rule 3.8 narrowed to apply only to subpoenas of current or former counsel in a criminal matter.Like Alternative 2, this alternative proposal would retain the limited scope of the Board’s original proposed rule as an ethical obligation imposed only on a prosecutor in a criminal matter, including a grand jury proceeding, and would include as options the language substitutions in the Supreme Court’s order. Also like Alternative 2, this change would modify proposed Rule 3.8 that was adopted by the Board and submitted to the Supreme Court on March 30, 2017 as part of the State Bar’s proposed comprehensive revisions to the rules. The difference with Alternative 2 is that Alternative 3 narrows the scope of regulated subpoenas to only those subpoenas that are issued to a criminal defense counsel. In Alternative 2, the scope is significantly broader because it does not matter whether the subpoena is issued to an attorney who is representing or previously represented a client in a criminal or civil matter. In both instances, a prosecutor’s compliance with the rule is required.In contrast, under Alternative 3 the rule would not apply in situations where a subpoena is issued to an accused’s lawyer in any past or present civil matter.Accordingly, Alternative 3 is a proposal for a rule that is narrower than the rule previously adopted by the Board and narrower than the ABA Model Rule counterpart.

To facilitate the Commission’s fully informed consideration of the three alternative drafts, public comment also is requested on the threshold policy question of whether there should be any rule at all on the subject of subpoenas of other lawyers. At the Commission’s July 5, 2017 meeting it was observed that while many jurisdictions have adopted a version of the ABA’s subpoena rule, Model Rule 3.8(e), some of the jurisdictions that have rejected the rule include: District of Columbia; Florida; Maryland; Massachusetts; New York; Texas; and Virginia. (See ABA table showing the state variations for Model Rule 3.8(e).)

At its meeting on July 13, 2017, the Board of Trustees considered the three alternative rule revision proposals prepared by the Commission and authorized a 45-day public comment period on the proposals.

Any Known Fiscal/Personnel Impact

None

Attachments

1. Clean text of alternative drafts 1, 2 and 3

Alternative 1 - Proposed New Paragraph (f) to Proposed Rule 3.4, Subpoena Rule Imposing Duties on All Lawyers, Not Only Prosecutors

Alternative 2 - Proposed Revised Paragraph (e) of Proposed Rule 3.8, Subpoena Rule Imposing Duties Only on Prosecutors

Alternative 3 - Proposed Revised Paragraph (e) of Proposed Rule 3.8, Subpoena Rule Imposing Duties Only on Prosecutors Narrowed to Apply Only to Subpoenas of Current or Former Counsel in a Criminal Matter   

2. Commission’s Memoranda to the State Bar’s Board of Trustees considered at the Board’s July 13, 2017 meeting – 702 JULY 2017 (including the full text of the Supreme Court’s May 1, 2017 order

Source

Commission for the Revision of the Rules of Professional Conduct of the State Bar of California.

Deadline

Aug. 28, 2017

Direct Comments To

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.

Mimi Lee

Office of Professional Competence, Planning and Development
State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Phone: 415-538-2162
Fax: 415-538-2171
Email: mimi.lee@calbar.ca.gov