By: Edward J. McIntyre
New Year’s Day has come and gone. With it, family gatherings, festivities, football. We’re back at work, facing 2025. But, before getting knee-deep in our practices, clients, and other stuff, consider taking a short break to start the year on the right foot—or left, if you wish.
Take up a copy of the Rules of Professional Conduct, sit in a quiet place, clear your mind of everything else, and slowly read the rules, from rule 1.0 through to rule 8.5, and don’t forget to read the comments, too. You may be surprised what you may learn—or have refreshed.
For example, rule 1.0 makes clear the purpose and function of the rules is discipline. But don’t be thrown off by the statement that violation of a rule “does not itself” give rise to a cause of action. Focus on “itself,” and pay attention to Comment [1]. A lawyer’s violation of a rule may be evidence of a breach of fiduciary duty. In fact, the rules help define a lawyer’s duty for a breach of fiduciary duty claim and a judge can use the text of the applicable rule itself in instructing the jury.
In rule 1.0.1, terminology, consider subsection (e)’s definition of “informed consent:” to explain to a client “the material risks, including actual and reasonably foreseeable adverse consequences of the proposed course of conduct.” When it comes to a waiver of a conflict, or confidentiality or any other situation that requires a client’s informed consent, the applicable rule, by definition, demands a lot of thought about what might happen and requires careful explanation of those possible risks to the client.
Consider Comment [2]’s discussion of that “of counsel,” that often carelessly used term. Does the “of counsel” lawyer actually have a “close, personal, continuous and regular” relationship with the other lawyer or firm? Remember, a conflict by an “of counsel” lawyer is imputed to every other lawyer in the firm under rule 1.10, with the potential for disqualification or worse.
Rule 1.1 (competence) has a Comment [1] that requires our staying current on the risks and benefits of technology, in addition to knowing substantive law and rules. The new “technology” MCLE requirement and the advent of Generative AI add substance to this rule.
Consider how rule 1.2’s admonition that we must abide by a client’s decisions concerning the objectives of a representation dovetails with rule 1.4(a)(2)’s provision that we should consult with the client about the means to accomplish the client’s objectives. How often during a representation should we continue to consult with the client to make sure that means we’ve chosen advance the client’s objectives and if those objectives themselves have changed.
Pat attention to rule 1.5(d)’s statement about “earned on receipt” or “non-refundable” fees. It applies only to “true retainers:” a fee that a client pays to ensure a layer’s availability during a specified period or on a specific matter—but not to any extent as compensation for legal services. In short, if a fee is linked to legal work, it’s not a true retainer—another term frequently carelessly used—and cannot be considered “earned on receipt.” As rule 1.16(e)(2) mandates, unearned fees paid in advance must be returned to the client at the end of a representation.
When reading rule 1.6, confidentiality, give extra attention to the comments. They explain the full scope and nature of the information that the confidentiality obligation, spelled out in Business and Professions Code section 6068, subdivision (e)(1) and its very narrow, “murder/mayhem” exception in section 6068, subdivision (e)(2). Many of uus fail to grasp just how broad the confidentiality obligation can be.
Note that rule 1.7(b) requires a client’s informed written consent when not only other clients’ or persons’ interests but a “lawyer’s own interests” can create a significant risk that will materially limit the lawyer’s representation of a client. How often do we consider that last category when clearing conflicts?
There is little new in rule 1.8.1, business transactions with clients, but remember that the case law underscores how courts turn a jaundiced eye to a lawyer doing business with a client or having financial interests at odds with a client’s.
Consider that rule 1.8.7, aggregate settlements, although it does not apply to class actions, does apply to the representation of multiple clients in, for example, mass tort actions.
Our duties to former clients, set forth in rule 1.9, focus on confidential client information, reiterating the importance of confidentiality in rule 1.6 and section 6068, subdivision (e)(1).
Rule 1.15 requires all funds held for a client’s benefit to be in a trust account, except a flat fee paid in advance, which can be deposited in an operating account provided a lawyer get a client’s informed, written consent. But remember, if that advance fee is not completely earned by the end of the representation, the unearned portion must be returned to the client—rule 1.16(e)(2). Thus, before putting an advance fee in an operating account, consider whether you want to risk having to go “out of pocket” to return the unearned portion.
Rule 3.2 makes needless, wasteful, purposeless tactics unethical, subjecting a lawyer not only to a court’s ire but discipline.
Take note of rule 3.3(a)(3) for a lawyer’s obligations if the lawyer learns after the fact that a client or witness has offered materially false evidence. To contrast a lawyer’s obligations under rule 3.3(a)(3) with the lawyer’s confidentiality obligation, consider reading the San Diego County Bar Association Ethics Opinion 2023-1.
We might close with rule 8.3, effective as of August 2023, that mandates in certain circumstances that a lawyer must report evidence of another lawyer’s misconduct to the State Bar or a judicial officer with authority to investigate it. California was reluctant and late to adopt a “rat” rule, but the Thomas Girardi discipline and criminal cases, and the publicity they generated, including what lawyers in his firm knew, left the State Bar and the Supreme Court with few options.
I’ve skipped over many rules. But read all of them with care—in fact a good habit to cultivate at least once a year. May you enjoy 2025 and thrive.