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

Don’t Let Your Ethical Duties Get Lost in the Cloud

The following is a guest blog post by Perry L. Segal, an attorney and management consultant at Charon Law, Redwood City. Mr. Segal has over 25 years of combined experience in law and technology. He is co-chair of the California Council of State Bar Sections, special advisor and past-chair of the Law Practice Management and Technology Section Executive Committee, and a member of the bar’s Social Media Task Force.

Few technologies create more puzzlement and worry for attorneys than “the cloud.” Attorneys, quite reasonably, want to know how they can stay on the right side of their ethical obligations when it comes to using it. As always, attorneys need to practice in accordance with the standard of reasonable care and effort. But there’s a caveat: Attorneys will be charged with the standard of an attorney who is competent in the understanding and use of technology. What does this actually mean? And as a practical matter, what can an attorney do? Continue reading

Using Social Media to Research Prospective Jurors

Given the decreasing time attorneys have for conducting voir dire, it can be very useful to investigate jurors with publicly available background information. Simply running Google searches can reveal an enormous amount of information about a potential juror in a short amount of time. This public information often will come from social media sources. As Ben Hancock reported in his article for Law.com, “social media profiles can present a trove of data points for jury selection…[but] researching jurors online while keeping on the right side of the judge and local ethics rules is hardly a straightforward exercise.”

Continue reading

Make Your Argument, But Don’t Argue with the Judge

ThinkstockPhotos-57277848An an attorney and an officer of the court, you sometimes have competing duties: to represent your clients zealously and to maintain respect for the court. When it comes to a disagreeable court ruling, you’ll need to make your strongest argument while remaining respectful to the judge. The key is to argue without arguing. Continue reading

Splitting Fees? Get Client Consent ASAP

124041823Common scenario: You do some work for a client and then pass off the client to another attorney, agreeing to split the attorney fees. Later you want to get your share of the fees. The Rules of Professional Conduct require that you get the client’s written consent to any fee-splitting agreement. Did you get the client’s consent right away, or are you now at the mercy of the other attorney? 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

You’re a Lawyer, Not a _______! 5 reasons Not to Work Another Job While Starting Your Law Practice

162308562The following is a guest blog post by Benjamin ScottBen is a solo estate planning attorney, a graduate of Concord Law School, a former high school physics teacher, and a father of three. 

There are advantages of working another job while starting a solo law practice, but after a year of trying this experiment, I see the mistakes of trying to work two jobs. Continue reading

Blog, But Blog Ethically

The following is a guest blog post by April E. Frisby of Frisby Law. April is a corporate and securities transactional lawyer and an adjunct law professor at Whittier Law School.

104229040Lawyers are often gun-shy when it comes to blogging, in part because of the ethical limits on advertising and solicitation by lawyers. But if you keep ethical considerations in mind, blogging can be a fun, cost-effective way to promote your practice. Continue reading

Conflict Avoidance: Do You Have a Conflicts Check System?

Your cases may be filled with conflict, but make sure that they don’t include conflicts of interest.  It’s most important to avoid conflicts of interest, but you also have to know what to do when they arise. And there’s a big stick involved with getting it wrong. Continue reading