Posted Mar. 2019

The New Rules of Professional Conduct

On May 10, 2018, the California Supreme Court approved the first comprehensive rewrite of the RPCs in nearly 30 years. On November 1, 2018, the 69 new RPCs became effective and replaced the former 46 RPCs. Several of the new RPCs implement important changes to the ethical obligations of attorneys or impose new obligations on attorneys. Some of the new changes include:

–  Conflict of interest rules are broader and less case specific. For example, a new definition of what constitutes a legal “matter” covered by conflict disclosure and non-representation requirements is more expansive and in line with ABA Model Rules jurisdictions.

–  Prohibitions on harassment, discrimination and retaliation by lawyers, both in the workplace and in the practice of law, have been expanded requiring “all law firm lawyers the responsibility to advocate corrective action to address known harassing or discriminatory conduct by the firm or any of its lawyers or nonlawyer personnel.”

–  Client’s written consent is required in criminal cases for guilty or nolo contendere pleas

–  Bright-line prohibition on sexual relations with clients unless they are a spouse, domestic partner or there was a pre-existing sexual relationship

–  Significant changes to a lawyer’s duty to supervise subordinates, trust accounting rules

An often-repeated quote in several State Bar Court disciplinary opinions is “[h]onesty is one of the most fundamental rules of ethics for attorneys.” This is in recognition that among the dozens and dozens of ethical statutes and rules of professional conduct that guide the behavior of California attorneys, there is one constant — honesty. Of course, the strictures of these statutes and rules must be understood and more importantly put into practice. But very often, these statutes and rules offer up the least that an attorney should do in there endeavors to practice law ethically. They prescribe what I call the “ethical floor” for attorney conduct.

I would offer the following as an over-arching principle to guide California attorneys in the ethical practice of law: Be honest, act with integrity and always put the client’s interests above your own. To borrow from another context: The rest is just commentary!

Posted Apr. 2019

Unauthorized Practice of Law

In the past few years, the State Bar has increasingly been investigating and charging attorneys with ethical violations in situations where they involve themselves in “business arrangements” with non-licensed persons, especially where the services provided include loan modification services, debt consolidation and other services related to the purchase, sale or ownership of real estate.

Most attorneys understand that business arrangements with unlicensed persons who prepare common legal forms for the general public without proper supervision or who allow their names to be used on pleadings prepared by unlicensed persons or permit nonlawyers to prepare and file legal applications, pleadings, and other documents have been found to be aiding of the unauthorized practice of law in violation of rule 1-300(A). But sometimes the lines are not so clear and before you know it there’s a serious problem.

As a former Senior State Bar prosecutor, and a legal ethics, professional responsibility and compliance expert, I can assist attorneys in assessing such arrangements before you enter into them and before you’re facing down a State Bar investigation.

Posted May 2019

Trust accounting duties are important!
The trust fund and trust account rules are designed to safeguard client funds from the serious risk of loss or misappropriation, whether through carelessness or design. (See In the Matter of Jones (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 411.) The amount of client trust funds that an attorney mishandles goes to the issue of discipline, not culpability, and the mishandling of even an insignificant amount can constitute a disciplinable offense. (See In the Matter of Respondent K (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 335.) No de minimis exception applies to the determination of culpability for mishandling trust funds.

The duty to keep client’s funds safe is a personal obligation of the attorney which is nondelegable. (In the Matter of Robins (Rev. Dept. 1991) 1 Cal. State Bar Ct. Rptr. 708; See also Palomo v. State Bar (1984) 36 Cal.3d 785.) The purpose of keeping proper books of account, vouchers, receipts, and checks is to be prepared to make proof of the honesty and fair dealing of attorneys when their actions are called into question. (Dixon v. State Bar (1985) 39 Cal.3d 335; See also Clark v. State Bar (1952) 39 Cal.2d 161.) The failure to keep proper books of accounts, vouchers, receipts and checks is a breach of an attorney’s duty to his clients. (Weir v. State Bar (1979) 23 Cal.3d 564.) An attorney’s failure to keep adequate records warrants discipline. (Fitzsimmons v. State Bar (1983) 34 Cal.3d 327.)

If you are facing an ethical issue or you have acted in a manner that you believe may be ethically suspect or worse you are facing a client’s State Bar Complaint, help is just a phone call away. Call someone who understands how to approach ethical issues. Call someone who can guide you to competently complete your professional responsibility obligations. Call someone who knows the State Bar discipline system from stem to stern. Call Ashod Mooradian now.

You will get the advice you need and the peace of mind that comes from knowing your ethical, professional responsibility or State Bar matter is being handled by an expert. Call me now at (323) 477-1772.