Legal Ethics Forum has some useful links to the American Bar Association’s 20/20 ethics proposals. Just the subject matter areas are a revealing snapshot of what legal ethics is largely about right now: technology and confidentiality, technology and client development, outsourcing and mobility issues. By and large the changes are modest and some of them don’t seem very helpful. For example, the changes in the comments to Model Rule 5.5 that caution’s that a virtual law office may, at some point, become as “systematic and continuous” so that licensure in the jurisdiction is required. This not only begs the critical question of when that point is reached but seems an attempt to impose a outdated concept of physical geography that just has little meaning in cyber space. National licensing would seem to make sense (it did to me twenty years ago) but we apparently can’t change the patchwork of parochial licensing institutions without intruding on some “core value” that eludes me. Economic and technology issues are moving the profession faster than the ability of rule makers to keep up; even as 20/20 seems a little quaint, California is moving toward adopting the last century’s state of the ethics art, a version of the Model Rules, at a pace well described as glacial.
Archive for February, 2012|Monthly archive page
The February 2012 status report submitted to the State Bar Board of Trustees Committee on Regulation, Admission and Discipline (RAD) by acting Chief Trial Counsel Jayne Kim describe a much needed structural reform in the Office of Chief Trial Counsel (OCTC): moving to to a pure vertical prosecution model. Under this system, the essential facts of the case don’t have to learned by four or more OCTC attorneys under the current model. This encourages early disposition of cases by investing the attorney responsible for overseeing investigations in the final result. There is also the positive news that OCTC is instituting a monthly training program for discipline prosecutors.
It is not clear whether approval of what the Chief Trial Counsel by discipline defense counsel is the kiss of death. Every time I say nice things about them, they seem to lose their job. I will go out on a limb one more time and state that the acting Chief Trial Counsel is moving OCTC in a direction it should have been moving some time ago.
The California Supreme Court has asked the State Bar is withdraw its prior submission of six proposed new Rules of Professional conduct, and instead submit the entire set of proposed rules.
When the the rules were approved by the State Bar Board of Governors (as they were then known) in September 2010, many assumed the new rules would immediately be sent to the Supreme Court for its approval. The Commission the drafted the rules had, at that point, spent the last nine years drafting the proposed rules. The high Court was rumored to be unhappy with the glacial progress of the subcommittee.
Strangely, the State Bar waited until July 2011 to submit only six of the 67 proposed new Rules to the Supreme Court for approval. Three months later (and more than ten years after the Commission began its work) later the Court issued an order, requested by the State Bar, withdrawing the partial submission so the State Bar could submit all 67 of the proposed new rules in a single comprehensive petition. A petition that, three more months down the road, has yet to be filed.
To be sure both the Supreme Court and the State Bar have had their hands full in the last year, between a new Chief Justice, embroiled in a battle over court control, and the State Bar, embroiled in its own battle over governance. And, in the State Bar’s words, the fruit of the Commission’s years of labor is one of the most complex proposals ever submitted by the State Bar to the Supreme Court. The new Rules with their extensive Comments weigh in at over 100 pages, three times as long as the current Rules of Professional Conduct (the original 1928 Rules of Professional Conduct are about four pages long.) Yet part of the reason for the extraordinary slow genesis of the new Rules was the painstaking process the Commission went through to obtain input from every stakeholder, including, as evident from the Commission’s action summaries, informal input from the Supreme Court itself.
Could it be that, after all this time and effort, the powers that be are having seconds thoughts about the whole project? The current discipline system, the folks that will actually be “hands on” with these new rules, has been through several years of change, including new management in the prosecutor’s office, a new set of procedural rules, an exhausting effort to eradicate the investigation backlog, and the uncertainty over the bar’s future raised by the governance battle. Some breathing room before this profound change doesn’t seem unreasonable but the learning curve for both the discipline professionals and the profession as a whole will be steep because these rules, by adopting the extensive comment sections, are intended to be a more than just disciplinary rules.
The acceleration of change in the legal profession is written in the history of our Rules of Professional Conduct. The original 1928 Rules served until 1975, almost fifty years. The 1975 California Rules were re-written after only 13 years, a decision taken after ABA decided to replace the 1969 Code of Professional Responsibility with the Model Rules in 1983. Our current Rules were adopted in 1989 and deemed worthy of replacement only 12 years later. Events are moving so fast in the ethics world that the Committee’s work product might already be obsolete; the ABA’s Commission 2000 work was one off the original spurs to California’s decision to revise our rules just twelve years after that had been completely re-written but the ABA has already moved on the ABA 20/20, which is dealing with cutting edge issues like public investment in law firms. Some of the slowness in adopting the proposed new Rules may stem from the prospect that they already need extensive revision.
A few weeks ago, the President of the State Bar of California, in discussing the Bar’s strategic plan, indicated that tougher discipline, higher admission standards (including some form of “residency” for aspiring lawyers), and increased continuing education requirements, might all be expected in the next few years. He also stated that the State Bar would be taking a hard look at the its current Lawyer Assistance Program and whether it is consistent with State Bar’s public protection mission.
At the recent meeting of the Association of Professional Responsibility Lawyers (APRL), presentations addressed Prof. Thomas Morgan’s thesis that lawyers are no longer a profession but merely “consultants”, the relief sought by large multi-national law firms from America’s onerous loyalty-based conflict rules (which, unlike European rules, don’t allow them to take on work adverse to current clients), and the important role that lawyer assistance programs play in addressing the underlying problems that cause attorney misconduct.
The disciplinary authority in California has been steaming toward more regulation for some time now but its clear that the captain (captains?) has ordered full speed ahead. The bar as a whole is being blown by different winds toward an unknown destination, one of those winds being the demise of the current expensively educated and highly regulated bar as a viable economic model. Of course, it only seems that these powerful forces are disconnected from each other. They can’t really avoid contact and when it occurs, the results will naturally be energetic.