Ethics Lawyer David C. Carr

Newsletter November 2017

Welcome to the Ethics Lawyer Newsletter for November 2017!

Order for Disqualification is Stayed Pending Appeal

URS, AECOM v. Atkinson/Walsh Joint Venture, Fourth App. Dist., Div. 3, case no. G052271, filed 9/26/17.  The trial granted respondent contractor’s motion to disqualify the law firm representing appellants based on the law firm’s acquisition of confidential information.  Appellants appealed but the trial court denied their ex parte application for an order staying the disqualification order.  Appellants application for a writ of supersedeas was accepted.  The appellate court held that the automatic stay provisions of Civil Code section 916(a) were applicable, noting the potential hardship of the order on the putatively disqualified lawyer’s clients, parties to the litigation.  The appeals court declined to stay all trial court proceedings but encouraged the parties to stipulate to a stay on issues affected by the disqualification order.

 


California Supreme Court Adopts Prosecutor Misconduct Rule

The California Supreme Court has issued an order adopting new Rule of Professional Conduct 5-110.  Effective November 2, 2017, the new Rule, entitled “Special Responsibilities of a Prosecutor” imposes several new duties on criminal prosecutors, who will be subject to potential discipline for violating the Rule.  Among them are a duty to make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or should know tends to negate the guilt of the defendant, or mitigate the offense or mitigate the sentence.   The new Rule is the first work product of the State Bar’s Committee for the Revision of the Rules of Professional Conduct to be adopted.  A complete set of new proposed Rules of Professional Conduct, based in part of the ABA Model Rules of Professional Conduct, has been before the high court since March 2017, thus far with no apparent action.


Public Comment:  Seeking Advice About Current Clients

The State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) is seeking public comment on proposed  Formal Opinion Interim No. 12-0005 (Seeking Advice About Current Clients).  The proposed Opinion’s addresses the issue:

What ethical obligations arise when lawyers in a law firm consult with outside counsel concerning matters related to the firm’s representation of a current client, such as the lawyer’s ethical compliance or a possible error by the law firm, and do those ethical obligations change if the lawyer consulted is a member of the same law firm as the consulting lawyer and serves as law firm in-house counsel?

The Opinion’s Digest states:

 Attorneys at times may seek legal advice concerning their ethical and other obligations to clients, advice that may be provided by, among others, outside counsel or a lawyer within the law firm serving as law firm inhouse counsel. The act of seeking legal advice concerning ethical obligations owed to a client by itself does not create a conflict with the client. Once a lawyer becomes aware that he or she has committed an error that could prejudice the client, the lawyer ethically may seek legal advice concerning obligations to the client and options available but must comply with the rules governing disclosure to clients and conflicts. The lawyer’s ethical obligations in that situation do not vary whether he or she seeks legal advice from a lawyer outside the firm or law firm in-house counsel.

The deadline for comment is 5 p.m., December. 11, 2017

Direct comments to

Andrew Tuft
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Phone: 415-538-2172
Fax: 415-538-2171
Email: andrew.tuft@calbar.ca.gov


That’s Why They Call It Practice:  Waiting for Godot? No, just for the revised Rules of Professional Conduct

On November 2, 2017, the California Supreme Court approved new revised Rule of Professional Conduct 5-110, the first new Rule from the Second State Bar Commission for the Rules of Professional Conduct (RRC-2.) This was the Rule that the Supreme Court suggested be considered for “fast-track” consideration in early 2015.

The “fast-track” was not without speed bumps.  After an extensive writing process by RRC-2, including participation by a liaison from the Supreme Court, and two rounds of public comment, the Supreme Court returned the Rule for further consideration earlier this year.  Now, 30 months after the suggestion of fast-tracking, the new Rule, substantially similar to ABA Model Rule 3.8, is ready for implementation.

Following in its wake are more than 100 other new revised Rules of Professional Conduct, submitted to Supreme Court in March 2017.  And some in California’s legal ethics community are starting to wonder.

 

The previous experience of the first Rules Revision Committee (RRC-1) looms large.  Between 2001 and 2009,  RRC-1 went through an exhaustive process to generate a new set of revised Rules of Professional Conduct largely based (like the current Revised Rules) on the ABA Model Rules.  Those Rules were approved by the State Bar and fitfully transmitted to the Supreme Court, where they languished until being rejected by the high court in 2014.

The participation of a Supreme Court liasion in current process raised hopes that the current set of Rules would be speedily approved by the Court.  Now, it looks like the Court will engage in a painstaking review process of its own that will probably take years, and could, conceivably, rejected as well.

So, we wait and wonder if the California will ever join the rest of the United States and adopt some version of the Model Rules.