For nearly three decades, the Rules of Professional Conduct for attorneys in California have remained largely unchanged. That is, until now. The State Supreme Court recently approved a major overhaul of the ethics rules that affect more than 250,000 attorneys in the Golden State. In total, there are 69 new and/or modified rules. These new rules of ethics will go into effect on November 1, 2018.
If you’re an attorney in the state of California you’ll need to brush up on your new ethical obligations. Here are 10 of the most important things you need to know about the new Rules of Professional Conduct.
1. Don’t Use Confidential Information to the Disadvantage of a Client
Under the new rules, attorneys are prohibited from using confidential information about a client to their disadvantage. You may only use confidential information to disadvantage a client if that client has provided consent in writing. A breach of your client’s trust violates the duty of loyalty. [Rule 1.8.2]
2. Plea Deals Require Written Consent
If you practice criminal law, you’ll need to make sure that your client fully understands the consequences of submitting a guilty or nolo contendere plea. Why? You need your client’s written consent in hand before a court will approve either plea. It’s your job to make sure that your client fully understands the repercussions of entering any plea other than “not guilty.” [Rule 1.8.7]
3. You Must Act With Your Client’s Best Interests At Heart
Ethical rules affecting attorneys have always encouraged attorneys to do what is best for their clients. The new California Rules of Professional Conduct impose new diligence requirements to reinforce this idea. As an attorney, you are now required to act with “commitment and dedication” to your client’s interests. You are also prohibited from unnecessarily delaying, disregarding, or neglecting matters that are important to your client’s legal issue. [Rule 1.3]
4. Be Careful When Drafting a Will or Financial Instrument
Attorneys are prohibited from preparing a legal document, such as a Last Will and Testament, that gives the lawyer (or their family members) a substantial gift. The only times when this will be acceptable is if:
- The attorney is related to the client, or
- The client has also sought additional legal advice from another attorney.
5. Confidentiality Extends to Prospective Clients
Attorney-client privilege and confidentiality are essential for proper legal representation. Under the new rules, attorneys must extend confidentiality to all clients, including those who are inquiring about legal representation. Clients need to be forthcoming with attorneys when trying to find appropriate legal counsel. This can only happen when clients feel comfortable sharing personal, intimate, and potentially-damaging information with an attorney.
So if you’re a personal injury lawyer and offer free consultations, you will want to make sure your intake team understands that the rules of confidentiality extend to all prospective clients, even if they do not become actual clients. [Rule 1.18]
6. Supervise Young Attorneys and Aides Closely
If you hold a position of authority in your firm, you need to make sure that you supervise your subordinates. The people who work for you also have an obligation to abide by the Rules of Professional Conduct. It’s your job to make sure that they follow rules of ethics and provide the best possible legal services to your clients. [Rules 5.1 – 5.3]
7. Rules on Discrimination Are Stronger
The new rules expand the state’s ban on discrimination and harassment in the workplace. Attorneys are now expressly prohibited from unlawful discrimination and harassment in the representation of clients. This applies to representation, termination, and the refusal to represent a client. Unlawful discrimination and harassment are defined by state and federal law. The State Bar reserves the right to look into allegations of unlawful conduct even if no prior complaints have been filed. [Rule 8.4.1]
8. Sex With Clients is Prohibited
Attorneys hold the fates of their clients in their hands. It can be easy for attorneys to take advantage of this position of power. Clients may feel pressured into engaging in sexual relations with their attorney to secure the best possible outcome in their case. Under the new rules, however, attorneys are expressly forbidden from having sex with a client. Sex is only permissible if the attorney and client had a sexual relationship that predated the attorney-client relationship. [Rule 1.8.10]
9. You’re Prohibited From Doing Things That Lack a Substantial Purpose
When you represent a client, time is money. In addition to pursuing an outcome that serves their client’s best interest, an attorney must also act diligently and with purpose. Under the new rules, attorneys are prohibited from engaging in conduct that has no substantial purpose. Conduct will be considered to lack a substantial purpose if the only intent is to cause unnecessary expense or delay.
10. Fees Have to Be Fair and Transparent
Fees are always a highly-contested issue. In California, ethics rules prohibit attorneys from charging fees that are unconscionable. The new Rules of Professional conduct help to clarify when fees may be unconscionable. Under the new rules, fees may be considered to be unconscionable if the attorney has:
- Failed to disclose material facts to the client,
- Fraudulently misled the client, or
- Intentionally overreached when negotiating a fee.
Unconscionability extends to flat fees, retainers, and contingent fees. [Rule 5.1]
Violating the Rules of Professional Conduct can have serious professional consequences. All attorneys must become familiar with all new ethical requirements before the rules become effective on November 1, 2018.