Waiting for Godot? No, just for the revised Rules of Professional Conduct

 On November 2, 2017, the California Supreme Court approved new revised Rule of Professional Conduct 5-110, the first new Rule from the Second State Bar Commission for the Rules of Professional Conduct (RRC-2.) This was the Rule that the Supreme Court suggested be considered for “fast-track” consideration in early 2015.

The “fast-track” was not without speed bumps.  After an extensive writing process by RRC-2, including participation by a liaison from the Supreme Court, and two rounds of public comment, the Supreme Court returned the Rule for further consideration earlier this year.  Now, 30 months after the suggestion of fast-tracking, the new Rule, substantially similar to ABA Model Rule 3.8, is ready for implementation.

Following in its wake are more than 100 other new revised Rules of Professional Conduct, submitted to Supreme Court in March 2017.  And some in California’s legal ethics community are starting to wonder.

The previous experience of the first Rules Revision Committee (RRC-1) looms large.  Between 2001 and 2009,  RRC-1 went through an exhaustive process to generate a new set of revised Rules of Professional Conduct largely based (like the current Revised Rules) on the ABA Model Rules.  Those Rules were approved by the State Bar and fitfully transmitted to the Supreme Court, where they languished until being rejected by the high court in 2014.

The participation of a Supreme Court liaison in the current process raised hopes that the current set of Rules would be speedily approved by the Court.  Now, it looks like the Court will engage in a painstaking review process of its own that will probably take years, and could, conceivably, rejected as well.

So, we wait and wonder if the California will ever join the rest of the United States and adopt some version of the Model Rules.

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