This is the first of what I hope will be several posts discussing the future of ethics rules in California.
One of the overarching questions that the Supreme Court of California must address is whether the law governing lawyers should be (1) set forth in comprehensive rules, with commentary, and then interpreted by appellate opinions as the need arises, or (2) set forth in a minimal set of disciplinary rules with few comments and then in a series of appellate opinions dealing with particular facts. The correspondence between the Clerk of the Supreme Court of California and the State Bar of California suggests that the court has opted for the latter. That's a bad idea for the public, for clients, and for lawyers. The former choice—essentially the ABA structure—has proven itself across the states and over decades to be a superior form of regulation.
Why is the ABA structure superior? First, the law that governs lawyers covers a lot of ground and we need a comprehensive framework. There is the relationship between the attorney and the client; there are the ethical obligations a lawyer has to each of the social systems with which she interacts as she represents her client (e.g., the courts, the markets, the executive branch agencies, etc.); there are the lawyer’s ethical responsibilities within her workplace; and there are the ethics rules that set the boundaries of the profession itself.
The ABA structure provides a solid, concise framework for the regulation all of those areas. In contrast, lawyers in California must turn to a thin set of poorly organized rules, a regulatory statute in the Business & Professions Code, numerous other statutes in a variety of codes, lots of appellate opinions that are often in tension with each other, the Rules of the State Bar of California, the California Rules of Court, and ethics opinions from a handful of committees.
As California ethicists know, that unwieldy assemblage of governing authorities necessitates the annual compilation known as “Publication 250,” which tries to pull all those disparate authorities together in one place. Likewise, we have to review the ramshackle “California Compendium on Professional Responsibility” and the poorly organized but essential index to the California State Bar Court Reporter. But even once the California lawyer has gathered all those sources, gaps remain. So we dutifully read Cal. R. of Prof. Cond. 1-100, which instructs us to consult the national authorities—i.e., we are told to go read the ABA Model Rules! If you have any doubts about the extent of the gaps in California’s law, just pick up the Vapnek treatise and see how often it relies on the ABA rules. In sum, California is in serious need of a comprehensive framework that is easily accessible to practicing attorneys.
Second, placing primary reliance on appellate opinions (rather than on rules and comments) does not serve the public interest because it fails to provide guidance to many lawyers. Appellate opinions mostly deal with ethics issues arising for litigators and with malpractice claims. But about half of the legal profession does not deal with litigation and the numerous ethics issues arising in those settings rarely make their way into appellate opinions. California lawyers need lots more clarity in the non-litigation settings.
Appellate opinions are also inadequate because they are so specific. Take, for example, our case law on how conflicts of interests apply to corporate affiliates. We have two leading cases that take divergent approaches and lead to different outcomes. What use is that to the attorney sitting in her office and deciding what she must do? Or take the example of the deal-making lawyer wondering if her lateral movement will create a conflict of interest for the lawyers in her new firm. Famously, California has no general rule on imputation of conflicts. So she consults the various appellate opinions and sees that the issue is analyzed and ultimately resolved by shifting the burden of proof in various ways. Shifting the burden of proof? How can she do that herself? She can’t. But if she were governed by the ABA approach, she would have ready access to a fairly robust way to analyze the issue.
Appellate opinions are inadequate for basic counseling. The bulk of the ethics compliance that lawyers undertake is done by themselves alone or within their law firms. Having to tease out the holding from the dicta in an appellate opinion, or having to reconcile the various appellate opinions on a topic, is not conducive to providing clear guidance to lawyers seeking help. Given how often lawyers want to know ex ante, “what does the rule say and what am I allowed to do?”, the answer, “we don’t have a clear rule in California but here’s some appellate opinions to ponder” is rather disappointing.
The legal profession has become more complex over time. Legal practices are increasingly specialized. Organizational clients now have significant in-house legal expertise and manage their outside counsel in sophisticated ways. It is necessary that the practicing lawyers in California have ready access to a clearly articulated framework of the law that governs their behavior. Right now, they don't. And if the new set of ethics rules will remain a minimal set of disciplinary standards with little commentary, California will fall even further behind. That doesn't help the public, the clients, or the lawyers. I have to say, respectfully, that our high court has chosen poorly.