Responding to the increasingly multijurisdictional nature of the practice of law, the California Supreme Court undertook the Herculean task of completely restructuring their existing Model Rules of Professional Conduct, bringing them closer to the ABA Model Rules of Professional Conduct.
In addition to adopting 23 new rules, California will also join the rest of the country in adopting the ABA Model Rule-based numbering system. Perhaps the only Rule that did not undergo any change was Rule 1.6 on Confidentiality, considered one of the firmest in the United States. Having officially gone into effect on November 1, 2018, all California Bar-admitted lawyers are now required to comply with these new rules.
Some of the changes, like those made to Rule 1.2.1, regarding the duties of lawyers when advising clients who seek advice about breaking the law, now include commentary to guide attorneys when advising clients whose claims present preemption concerns. This is particularly helpful in California, where state and federal laws are often in conflict.
Among the more controversial of the newly adopted Rules, Rule 8.4.1 imposes a duty on lawyers to advocate for corrective action if they know of harassing or discriminatory behavior by firm employees, including lawyers and non-lawyers alike. Equally controversial was the transformation of Rule 3-120, now Rule 1.8.10. Rule 1.8.10, like its ABA counterpart, forbids lawyers from having a sexual relationship with their clients, but provides an exception for cases where the sexual relationship existed before the lawyer-client relationship was effectuated. The previous Rule, Rule 3-120, however, only applied to quid pro quo or coerced sexual relations.
Moreover, while the previous Rule of Professional Conduct 3-110(b) defined competence as, among other things, “acting with diligence”, the new Rules makes “reasonable diligence” an independent rule in Rule 1.3. According to Rule 1.3, “reasonable diligence” means commitment and dedication to the clients’ interests and not acting with disregard, neglect or undue delay.”
The complete set of the new rules can be found here.
