In my last post on the new California Rules on Professional Responsibility, I mentioned that many of the changes were meant to bring about consistency with the ABA Model Rules. As a result, there are a number of new rules that were never explicitly part of the California rules.
Because of the limitations of a blog post, I plan to focus on only a few of these new rules. If you are taking the bar exam after November of 2018, familiarity with these new rules may be beneficial when writing essays that discuss how attorneys interact with their clients.
1. An Attorney is an Independent Advisor to the Client
Probably my favorite new rule is Rule 2.1, titled “Advisor,” which states:
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.
A very simple statement that expresses a very big concept – Attorneys are more than a mouthpiece for our clients. We have an obligation to be competent, not to take on frivolous cases, and to make sure the client’s best interests are preserved and protected.
What Rule 2.1 now emphasizes is that an attorney owes a higher duty to the profession to maintain independence, so that advice given to a client meets a professional standard. By the way, this duty is no different than that imposed on in-house counsel, who are told they owe a duty to act in the best interests of their client, the company or corporation, and not simply to accomplish their tasks as an employee.
So, how would you use this rule on the bar exam? I recently saw a fact pattern where a client insisted the attorney engage in unnecessary delays to punish the opponent. The typical response to this fact pattern would be to cite rules that state an attorney should not delay litigation unnecessarily or misrepresent reasons for a delay to the court. A more complete answer might also note that an attorney is responsible for making decisions about the strategic progress of a case, not the client. Now with Rule 2.1, you can also add the argument that as an advisor, the attorney should use their independent professional judgment to advise the client how their desire to delay the case conflicts with the attorney’s ethical obligations without real benefit to the client. In my view, this rule empowers attorneys to place ethics at the forefront.
2. California Finally Addresses the Reality of Attorneys Changing Jobs in a Rule
It is a commonly held belief that if a lawyer in a firm has a conflict with a client, then the whole firm has a conflict – disqualifying that firm from representing the client. However, this simple conclusion fails to take into account the realities of the modern-day practice of law. The new reality is that attorneys move more freely from one law firm to another, taking cases with them to the new firms, thereby creating new conflicts. The days when an attorney would join a firm and stay for the duration of their career are long gone.
Rule 1.10 specifically addresses the impact of movement by attorneys from one firm to another. Surprisingly, while case law has attempted to deal with conflicts presented by attorneys changing jobs, this is the first explicit statement in the California rules on how resulting conflicts should be addressed. For instance, Rule 1.10 addresses what happens when attorneys leave a firm, taking their cases with them to a new office. Imagine a year or two later a new client asks the old firm to sue a former client whose case with the firm was exclusively handled by the attorney who left. Rule 1.10 no longer presumes the firm should refuse to take the new case against the old client, especially if the attorney that left did not significantly include other attorneys or staff in the representation of that client.
Another important part of Rule 1.10 also brings California into the modern world by allowing attorneys to be screened off from a case when they join a firm handling a case opposed by attorneys in the firm they just left. While case law suggested screening might be an available remedy in California, it was never an explicit possibility, or even a preferred method of avoiding a conflict due to job changes. Now, as long as the attorney was not significantly involved in the case while at the prior firm, and the new firm can put into place procedures that keep the attorney away from the case in the new firm, there may not be a need to disqualify the whole firm.
Conflicts are a favorite bar subject. As a result, these changes, which bring California closer to the ABA standard on imputed conflicts, should be given serious consideration.
3. It’s Not Just About Competence Anymore
In the past, if you were presented with a fact pattern on the California bar where a subordinate attorney or staff member committed ethical violations, you had to apply ABA rules, then discuss how any violation under California law would be addressed using rules on competence. Well that is no longer the case. Supervising or managing attorneys in a firm now have an affirmative duty to ensure that subordinate attorneys and employees understand the need to comply with the rules governing professional responsibility. Rules 5.1 – 5.3 specifically address this topic by essentially adopting the ABA rules. Therefore, while competency may still be an issue raised by the facts, there will no longer be the necessity to discuss two different approaches on the obligation to supervise subordinate attorneys and employees.
Many differences between the California and ABA rules have disappeared with these changes. Therefore, when studying for the bar exam, you should be careful to rely on the most recent bar review materials to ensure you don’t raise distinctions that no longer exist.