Tag: #ethicsinbrief

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

By Michael L. Crowley

Nary a week goes by without your author being asked how long we have to keep our files in storage. I would like to be able to give you a definitive answer, but there isn’t one. The state bar’s Committee on Professional Responsibility and Conduct (COPRAC), however, is venturing into the area and you are likely not going to like it.  Read More

By David C. Carr

Independence is often referred to as one of the core values of the legal profession. This value is reflected in American Bar Association Model Rule 5.4, entitled “Professional Independence of A Lawyer.” Model Rule 5.4(a) provides that a “lawyer or law firm shall not share legal fees with a non-lawyer …” with some narrow exceptions. Model Rule 5.4(b) forbids a lawyer from forming a partnership with a non-lawyer “if any of the activities of the partnership consist of the practice of law.” Subsection (c) of the Model Rule states that a “lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment in rendering such legal services.” Finally, Model Rule 5.4(d) says that a lawyer may not practice in the form of a professional corporation or other association if a non-lawyer holds any interest in the entity, is a director or similar member of the control group, or otherwise has the right to control the professional judgment of the lawyer. The rationale is that non-lawyers, unbound by the lawyer’s professional obligations, may make decisions that are not in the clients’ best interest in the name of more profit for the business entity. Read More

By Anne M. Rudolph

The business of being a lawyer is not unlike other businesses in the sense that we rely on satisfied customers (clients) to establish, build and maintain a successful practice. Word of mouth and recommendations are an integral part of that process. In the modern age, online review sites have become ubiquitous. Avvo, Google, Martindale-Hubbell, and Yelp, are some of the most well-known on which someone can post a review of a lawyer’s services.  Read More

By Shelly Skinner

California’s legal ethics rules are designed to protect the public and the integrity of the legal system, while promoting the administration of justice and confidence in the legal profession. Cal. Rule of Prof. Conduct 1.0. Attorney candor is crucial to achieving these aims. While the legal ethics rules set forth many aspects of the duty of candor, this article will focus on the duty to communicate settlement offers in civil matters. Read More

By Mallory H. Chase

Although nonlawyers are not directly governed by the California Rules of Professional Conduct (see CRPC, rule 1.0(a) [the “rules are intended to regulate professional conduct of lawyers through discipline”] [emphasis added]), rule 8.4 provides that it is professional misconduct for a lawyer to “violate these rules or the State Bar Act, knowingly* assist, solicit, or induce another to do so, or do so through the acts of another[.]”[1] (CRPC, rule 8.4(a).) Additionally, under CRPC, rule 5.3, managerial and supervisory lawyers must make reasonable efforts to ensure the conduct of nonlawyers who are employed by, retained by, or associated with the lawyer is compatible with lawyer’s professional obligations. Among those professional obligations is the prohibition on certain types of solicitations, as delineated in CRPC, rule 7.3.[2] Read More

By David C. Carr

The Fourth District Court of Appeal, Division 3, has a new opinion, Falcon Brands v. Mousavi & Lee L.L.P. (case no. G059477, filed 1/27/22), that adds to our knowledge of one of the more opaque issues in legal ethics: when do a lawyer’s demands to settle become extortion? Read More