November 3, 2010

California Supreme Court must gear up to review dozens of proposed ethics rule revisions

The State Bar Board of Governors has finally settled on 67 proposed ethics rules revisions. According to the Cal Bar Journal, the rules were last revamped in 1987, since which time the rules revision commission has held numerous public hearings and reviewed hundreds of responses to the commission’s requests for public comment. (The State Bar’s web site clarifies that the last effort of the commission began in 1985, resulting in revised rules being adopted in 1989, and supplemental revisions being adopted in 1992.) Take a look at the journal article to check out the summary of some key revisions, and key areas where California’s ethics rules differ from the ABA model rules.

What does this have to do with the California Supreme Court? As the state bar journal notes, “the rules require Supreme Court approval before taking effect” and “the court is free to reject or return any of the proposals for further work.” (See Bus. and Prof. Code, §§ 6076, 6077.) This comment prompted us to wonder about the court’s track record on revisions. It appears that the court has not always rubber stamped proposed ethics rules in the past. One law review article indicates that rejections occurred in 1988 and 1993. (See Fred C. Zacharias, Privilege and Confidentiality in California (Winter 1995) 28 U.C. Davis. L. Rev. 367, 390.) According to the “American Legal Ethics Library” on Cornell Law School’s Legal Information Institute site, questions from the court prompted withdrawal of Proposed Rule 3-100 in 1987 and the court summarily rejected the rule when it was proposed again in 1993. The rule would have created a “future crimes” exception to California’s strict requirement of maintaining client confidences. Ultimately, however, the Supreme Court in 2004 adopted a version of rule 3-100 that allows, but does not require, a lawyer to disclose confidential information to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm.

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