New Ethics Rules Weigh In on Flat Fees

new rules of professional conductThe following is a guest blog post by Megan Zavieh. Megan focuses her practice exclusively on attorney ethics, providing guidance to attorneys, representing attorneys facing State Bar discipline, podcasting, and writing extensively on ethics issues.

California’s new Rules of Professional Conduct, effective November 1, 2018, recognizes a trend in legal services billing—flat fees. Flat fees are becoming more common as an alternative to the traditional billable hour. As they rise in popularity outside of criminal law, the rules directly address them. Here’s what you need to know and do. Continue reading

3 New Rules Every Criminal Law Attorney Needs to Know

new rules of professional conductThe following is a guest blog post by Garrick Byers, known as the Statute Decoder because of his facility in interpreting statutes and rules. He is the chairperson of the California Public Defenders Association’s (CPDA’s) Ethics Committee, and is a former CPDA president. He is a criminal law specialist and a frequent speaker and writer on criminal law topics, including ethics. He was a public defender for 33 years and is currently in private practice, handling criminal law appeals, writs, motions, and case consultations.

The new California Rules of Professional Conduct, effective November 1, 2018, use the format and much of the substance of the ABA Model Rules. Here are three of the most important changes for prosecution and defense counsel.

1. The most urgent change: prosecutorial discovery responsibilities (new Rule 3.8). The California Supreme Court adopted this new rule a year before the others, effective November 1, 2017, originally as an addition to current Rule 5-110. Paragraph (D) was added to require prosecutors to

[Disclose]…all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt…, mitigate the offense, or…the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

Also added was Comment [3]: “The disclosure obligations…are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83…and its progeny.”

2. Communication with a represented party person (new Rule 4.2). Current Rule 2-100 bars communication without that lawyer’s consent only with a represented “party.” The new rule expands this to “person”:

(a) In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.

Comment [8] says “This rule…is not intended to preclude communications with represented persons [during]…investigative activities engaged in, directly or indirectly, by lawyers representing persons whom the government has accused of or is investigating for crimes, to the extent those investigative activities are authorized by law.”

3. Requirement to cite adverse authority (new Rule 3.3(a)(2)). It has never been a good tactic to fail to cite adverse authority, but it wasn’t against the disciplinary rules until now:

[A lawyer shall not] fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel…

Comment [3] adds, “Legal authority in the controlling jurisdiction may include legal authority outside the jurisdiction…such as a federal statute or case that is determinative of an issue in a state court proceeding or a Supreme Court decision that is binding on a lower court.”

Comment [4] says that this duty applies to “all lawyers, including defense counsel in criminal cases.” And that  “[t]he obligations of a lawyer under these rules…[is] subordinate to applicable constitutional provisions.”

These and several other reforms and changes require the criminal law bar to become familiar with the new Rules of Professional Conduct and adjust their practices accordingly.

Don’t miss Mr. Byers discussing the rules in CEB’s webinar The New Rules of Professional Conduct: What All Attorneys Need to Know on October 9th at noon.

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Highlights of the New California Professional Rules

new rules of professional conductThe following is a guest blog post by Merri A. Baldwin. Merri is a shareholder at Rogers Joseph O’Donnell P.C., where her practice focuses on attorney liability and conduct, including malpractice, State Bar discipline, ethics advice, motions to disqualify and sanctions defense. She is the former Chair of the California State Bar Committee on Professional Responsibility and Conduct.  She teaches professional responsibility at Berkeley Law, and is a certified specialist in Legal Malpractice Law. 

In May, after several rounds and many years of drafting, editing, and consideration, the California Supreme Court approved comprehensive changes to the Rules of Professional Conduct governing lawyers in California to take effect on November 1, 2018. These significant changes bring California rules more in line with the rest of the country.  Here are some highlights of the new rules. Continue reading

3 Ways to Deal with Client Conflicts

attorney's hand up in stop gesture because there's a conflict of interest between clientsA prospective client comes to you and you discover that there’s a conflict of interest with one of your current or former clients. Or while you’re representing a client, a conflict arises with another client. You’ve got three ways to deal with these types of situations, depending on when the conflict comes to light.  Continue reading

Does an Ethical Breach Bar an Attorney from Getting Fees?

The short answer: Yes, under California law, an attorney’s ethical breach of duty may disqualify that attorney from all or part of a fee award. But there’s a possible exception. Continue reading

Got a Website? Tweet? Save Copies of Everything!

135874637Did you know that, if you advertise your legal services on the Internet—and that includes having a firm website or using social media—you have to keep a copy of all the webpages for two years? Continue reading

Using Social Media? Beware of Ethical Pitfalls (Part 2)

87524559The following is a guest blog post by Jonathan Rubens, a principal at Javid Rubens LLP in San Francisco, which represents clients in business transactions and advises them on data security, privacy, trademark and copyright issues. 

With the increasing use of social media by attorneys comes ethical risk. In Part 1 of the blog post, we discussed the risks involved with posting about ongoing matters and blogging without a disclaimer. Here are more tips to help you safely navigate the social media minefield. Continue reading

Using Social Media? Beware of Ethical Pitfalls (Part 1)

87524559

The following is a guest blog post by Jonathan Rubens, a principal at Javid Rubens LLP in San Francisco, which represents clients in business transactions and advises them on data security, privacy, trademark and copyright issues.

Attorneys are using social media websites more and more. We’re visiting a variety of sites to promote our practices, communicate with our peers, and stay in touch with our clients. But social media presents many ethical pitfalls to avoid. Here are some tips to help you safely navigate the social media minefield. Continue reading

Tricky Business: Representing Clients with Adverse Interests

470754185As a matter of professional responsibility, California attorneys must avoid conflicts of interest with current and former clients. Beyond these ethical obligations, there are also practical reasons to avoid a new client who is or may be adverse to a current or former client. Continue reading

Do’s and Don’ts of Juror Contact

10tips_22573018Not surprisingly, California’s legal ethics rules have a lot to say about how attorneys relate to jurors. Here are 5 do’s and don’ts when it comes to attorney-juror interaction. Continue reading