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!