After 10 years of effort by the State Bar of California Rules Revision Commission (RRC), and four years of dithering by the State Bar and the Supreme Court, the Court has confirmed that it will not adopt any of the RRC’s work product. The State Bar has been ordered to go back to the beginning, set up a new commission and come with a new set of Rules of Professional Conduct by March 2017.
The handwriting has been on the wall for a long time ( See New Rules of Professional Conduct: Obsolete on Arrival? Kafkaesq, February 2012.) The project was begun under the aegis of former Chief Justice Ron George, who thought that it was important to bring California’ s rules in line with the “evolving national ethical standards” reflected in the American Bar Association’s Model Rules, especially after the ABA announced around the turn of the century, with some fanfare, that it would be looking at changes in those Rules to meet the challenges of the new millenium. The painfully slow process of the RRC was given a kick in the pants at some point by the George Supreme Court around 2007 and revised its process to start with the ABA Model Rules format, numbering and language and work from there.
The RRC then began to go replace the ABA text with California law where there was a conflict — the chassis may be ABA , but the engine had to be California law, and in most areas the California rules survived (fee splitting between lawyers, for instance; the pure “referral” fee in our current Rule 2-200 remained intact.) A few controversial changes were proposed; after much (much, much debate) the ABA Model Rule 4.4 approach to the no contact rule, “persons” not parties, was adopted (see In the Matter of Dale (Review Dept. 2005) 4 Cal. State Bar Ct. Rptr. 798, 2005 WL 1389226) to the great annoyance of criminal prosecutors and many criminal defense counsel. And many helpful things, such as the ABA Model Rule glosses on the duty to supervise reflected in Model Rules 5.1 et seq. were added.
In the long process, the surrounding landscape changed. The evolving national ethical standard might have seemed less of priority during the economic collapse of the Great Recession and the strangulation of court funding. The economic collapse of the Lawyer Bubble and the tantalizing prospect of “disruptive” change in the delivery of legal services, coupled with the relatively modest changes produced by the labor of ABA 20/20 may have cooled the atmosphere, even if it was unlikely that had a direct impact on the California Supreme Court.
But changes in personnel perhaps had the biggest impact.
In July 2010, just as the State Bar Board of Governors (as they called themselves) was considering the RRC’s work product, Chief Justice George announced his retirement. The new Chief Justice might well be forgiven for not thanking her predecessor when the thousands of pages of Proposed Rules and supporting material arrived on her doorstep.
No outsider is privy to the discussions between the Supreme Court and the State Bar of California concerning these rules over the last four years. But Executive Director Senator Joe Dunn apparently told that Supreme Court in an August 2014 letter that they had tried to winnow down the Proposed Rules (over 100 pages of rules with extensive comments) but had been unable to. He requested permission to pull the plug, which the Supreme Court granted with instructions to start over again.
The voluminous nature of the Propose Rules raised the issue of exactly what role these are meant to play. The original California Rules of Professional Conduct from 1928 were written exclusively as discipline rules, statements of black letter law not unlike criminal statutes meant exclusively to guide the then-new State Bar in exercising the responsibility hitherto discharged by the Courts. But Rule 1 explicitly commended the new members of the Bar to the ABA 1908 Canon of Professional Ethics for prophylactic guidance, a reference that must have meant that those discipline rules were subject to interpretation in light of the Canons.
Ethics codes as discipline rules or as prophylactic guidance? The ABA 1969 Model Code of Professional tried to provide it both with its bewildering DRs and ECs. And I mean bewildering quite literally because as a law student at Loyola in 1983 I couldn’t make heads or tails of it and my PR instructor did not seem to be able to either. The Model Rules did a better job at patching up the seams but the tension between these two very different purposes seemed evident to many who regarded the Model Rules as too lawyer-centric, with its extensive and nuanced comments intended to advise lawyers on how to act. Similar criticism issued almost immediately after the RRC completed its work, some of it from former members of the Commission.
The Supreme Court agrees. The letter from the Supreme Court, according to Don DeBenedictis’s story in the Daily Journal, states that “because the purpose is lawyer regulation, the new rules should simply set minimum disciplinary standards. They also “should avoid incorporating the purely aspirational or ethical considerations” and should use comments “sparingly”.
One approach that might be considered is simply adopting a version of the 1928 Rules of Professional Conduct and replace the reference to 1908 Canons with the current ABA Model Rules of Professional Conduct to interpret the discipline rules and to provide prophylaxis.
Sherman, set the Wayback Machine for 1928!