By Charles Berwanger

All of us have most probably received email communications from opposing counsel in a matter in which counsel’s client is shown as a “cc.” You have been waiting for the opportunity to at long last communicate with the client. You fear that opposing counsel has not communicated your settlement offer to the client and now may be the opportunity to communicate that offer by hitting the “reply all” tab. The settlement proposal is relevant to the substance of the email. However, you are concerned that such a communication may violate Rule of Professional Conduct 4.2 which proscribes communicating with a represented party without the consent of opposing counsel. Read More

By Jeff Michalowski

In recent years, amicus briefing has played an increasingly significant role in appellate practice. This is true, of course, in blockbuster Supreme Court cases like Dobbs (in which 133 amici filed briefs) and Obergefell (in which 149 amici filed briefs). But amicus briefs consume more and more of practitioners’ time in the intermediate appellate courts as well, and occasionally in the trial courts, too. Consider Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (identifying 257 amicus briefs in same-sex marriage case). See also Allison Orr Larsen, “The Amicus Machine,” 102 Virginia Law Review 1901 (2016) (noting the increased use of amicus briefs, and increased citation to amicus briefs in opinions). Read More

By David C. Carr

American Bar Association (ABA) Model Rule 8.3 provides that “a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” Despite being adopted by most, if not all, American jurisdictions, Rule 8.3 has not been adopted in California. A California version was considered by the Commission for the Revision of the Rules of Professional Conduct but not adopted as part of the Commission’s recommended set of rules. The drafting team memo sets forth this analysis: Read More

By Shelly Skinner

California Rule of Professional Conduct 1.1 requires that attorneys provide competent representation to their clients. This includes “the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.” Cal. Rule of Prof’l Cond., Rule 1.1, Comment 1. Read More

By Deborah Wolfe

Apparently, in 2022, despite years of progress and women entering the legal profession at a rate of 51% compared to men, misogyny is alive and well — though perhaps less overtly than was tolerated in the past. However, the current Rules of Professional Conduct (RPC), in effect since Nov. 1, 2018, provide for the State Bar to take disciplinary action against lawyers engaging in discriminatory conduct of any kind against anyone when acting in their capacity as a lawyer. The former RPC dealing with virtually all types of unlawful discrimination by lawyers, 2-400, was a weak and rarely-used basis for discipline, and only applied to the “management or operation” of a law practice. Specifically, a 2-400 violation was not even actionable by the Office of Chief Trial Counsel unless it was first “found to be unlawful by an appropriate civil administrative or judicial tribunal under applicable state or federal law. Until there is a finding of civil unlawfulness, there is no basis for disciplinary action under this rule.” Read More