By Charles Berwanger
The all-important Rules of Professional Conduct are intended to guide our lives as attorneys, and in some instances our personal lives, and with this new year it behooves all of us to re-familiarize ourselves with the Rules. The purposes of the Rules are to “protect the public, the courts, and the legal profession, protect the integrity of the legal system; and promote the administration of justice and confidence in the legal profession.” Rule 1.10. It continues that “the Rules of Professional Conduct are intended to establish the standards for lawyers for purposes of discipline….Therefore, failure to comply with an obligation or prohibition imposed by Rule is a basis for invoking the disciplinary process.”
Competence, Candor, and Communication
These 3 concepts wind their way through the Rules. As discussed in the following section, 2023 was a year in which these three concepts were the basis for the expansion of attorney duties. First, a brief discussion of highlights of the existing rules as of the beginning of 2023.
Competence is the topic of the very first rule, Rule 1.1. By it, “a lawyer shall not intentionally, recklessly, with gross negligence, repeatedly fail to perform legal services with competence.” In explanation of that Rule is Comment 1. It provides that “the duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.”
Candor is also a topic which winds its way through many of the Rules. The requirement of candor, that is – honesty, is foundational to many of the duties imposed upon attorneys. For example, by Rule 3.3 “a lawyer shall not… knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer….” Rule 4.1 dictates that “in the course of representing a client a lawyer shall not knowingly: (a) make a false statement of material fact or law to third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by client….” There is more. Rule 8.4 provides that “it is professional misconduct for lawyer to… engage in conduct involving dishonesty, fraud, deceit, reckless or intentional misrepresentation….” Comment 12 to Rule 8.4 states that “a violation of this rule can occur when a lawyer is… not practicing law nor acting in a professional capacity.”
Communication, particularly to clients, is foundational to various duties as well. For example, Rule 1.2 provides that “a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall reasonably consult with the client as to the means by which they are to be pursued.”
The State Bar Gave Further Direction to Attorneys in 2023 to Effectuate Those Concepts
The State Bar’s attempt to deal with its failure to discipline attorneys, such as Thomas Gerardi, who violate their duties regarding client funds, resulted in the adoption of Rule 2.5, effective January 1, 2023. The Client Trust Account Protection Program was the direct result of State Bar inaction in the face of numerous complaints received by the State Bar regarding Mr. Girardi. To ensure client trust fund protection the State Bar adopted Rule 2.5. Among other things, it requires that any inquiries from clients regarding monies held by an attorney must be responded to immediately and that attorneys must communicate with clients regarding any client money received- immediately as well. There are also detailed record-keeping requirements; and yearly trust fund status reporting requirements to be made to the State Bar.
Mr. Gerardi’s misdeeds also gave rise to Rule 8.3, better known as the “Snitch Rule.” There were many attorneys in the orbit of Mr. Gerardi who knew that Mr. Gerardi was stealing client funds. They remained silent. Rule 8.3 is intended to preclude a reoccurrence of such silence. It provides that “a lawyer shall, without undue delay, inform the State Bar, or a tribunal with jurisdiction to investigate or act upon such misconduct when the lawyer knows of credible evidence that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation or misappropriation of funds or property that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” Rule 8.3 became effective August 1, 2023.
Large language generative AI has burst upon the scene with much fanfare regarding its anticipated world changing benefits – and its accompanying risks. Several attorneys have made headlines in their use of generative AI to perform their legal research incorporated into motions filed with courts. In several the legal research performed by generative AI generated “opinions” directly in point, but as it turned out they were fantasy. The AI cloaked the cites with authentic looking case captions, court names, docket numbers, and names of judges and lawyers. The use of generative AI without exercise of independent judgment to check the cites was not “competent” within the meaning of Rule 1.1. As well, the attorneys obviously had no understanding of the risks posed by an unthinking use of generative AI. Clearly as well, the submission of fantasy cites to the court was a violation of counsel’s duty of candor to the court.
The State Bar, therefore, adopted on November 16, 2023 “practical guidance for the use of generative artificial intelligence in the practice of law.” It contains “guidance” for attorneys on the use of generative AI consistent with the Rules of Professional Conduct. The “guidance” contains a series of directives to attorneys based upon specific references to the Rules of Professional Conduct in the use of generative AI. For example, one “guidance” advises that “it is possible that generative AI outputs could include information that is false, inaccurate, or biased. A lawyer must ensure competent use of the technology, including the associated benefits and risks, and apply diligence and prudence with respect to facts and law.” The “guidance” also notes the substantial risk that the use of generative AI poses to the attorney-client privilege and directs attorneys to have the necessary competence in generative AI to ensure that privileged information is not disclosed.
Rule 1.1 mandates that attorneys have the necessary knowledge to understand and use technology. The State Bar taking note of generative AI now mandates that competence requires one hour of continuing legal education in “technology in the practice of law” for each reporting period beginning with the compliance period ending January 31, 2025.
Undoubtedly, the State Bar will have more to say about the use of generative AI and its potential impact upon the practice of law in 2024.
The Future
Just as 2023 was a year of substantial State Bar activity, so too 2024 portends to be as well.
To increase civility in the legal profession, the State Bar is proposing amendments to Rules 1.2 and 8.4 and new Rule 8.4.2 based on recommendations provided by the California Civility Task Force and the California State Bar Committee on Professional Responsibility and Conduct. These changes will clarify that a lawyer may be disciplined for incivility and provide a basis for discipline for uncivil conduct. For example, Rule 1.2 will provide that an attorney has the responsibility to conduct him or herself with civility, including agreeing to reasonable requests of opposing counsel or self – represented parties, even if the client directs otherwise, so long as the lawyer does not prejudice the rights of the client. The Rule 8.4 series will direct lawyers to consult the current California Guidelines of Civility and Professionalism and other applicable legal authorities, such as rules of court and bar associations’ civility guidelines.
Finally, just as the reinforced trust accounting and reporting requirements impose more “active management” measures upon attorneys to prove that no misconduct is occurring the State Bar may require additional “active management” mandating, for example, that law offices have an ethics management plan that meets requisite standards and file a plan with the State Bar. Random audits of such plans and their implementation may one day occur, just as for trust accounts. Such “active management” regulation will enable the State Bar to shift the cost of regulation to attorneys.