Coming this November – the first comprehensive set of changes, in 29 years, to the State Bar of California attorney Rules of Professional Conduct
The new Rules of Professional Conduct (to be effective on November 1, 2018) were approved by the California Supreme Court on May 10, 2018 by Supreme Court Administrative Order 2018-05-09.
Though the current Rules remain in effect until November 1, 2018, there are enough changes in the revised rules to warrant a review beforehand.
One example of a change involves the duty of candor, which under the current rules is limited to the courtroom. The new Rule 4.1 will govern truthfulness in statements to others.
RULES OF PROFESSIONAL CONDUCT (effective November 1, 2018)
TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS
Rule 4.1 Truthfulness in Statements to Others
In the course of representing a client a lawyer shall not knowingly:
(a) make a false statement of material fact or law to a 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 a client, unless disclosure is prohibited by Business and Professions Code section 6068, subdivision (e)(1) or rule 1.6.
Comment
[1] A lawyer is required to be truthful when dealing with others on a client’s behalf, but generally has no affirmative duty to inform an opposing party of relevant facts. A misrepresentation can occur if the lawyer incorporates or affirms the truth of a statement of another person that the lawyer knows is false. However, in drafting an agreement or other document on behalf of a client, a lawyer does not necessarily affirm or vouch for the truthfulness of representations made by the client in the agreement or document. A nondisclosure can be the equivalent of a false statement of material fact or law under paragraph (a) where a lawyer makes a partially true but misleading material statement or material omission. In addition to this rule, lawyers remain bound by Business and Professions Code section 6106 and rule 8.4.
[2] This rule refers to statements of fact. Whether a particular statement should be regarded as one of fact can depend on the circumstances. For example, in negotiation, certain types of statements ordinarily are not taken as statements of material fact. Estimates of price or value placed on the subject of a transaction and a party’s intentions as to an acceptable settlement of a claim are ordinarily in this category, and so is the existence of an undisclosed principal except where nondisclosure of the principal would constitute fraud.
[3] Under rule 1.2.1, a lawyer is prohibited from counseling or assisting a client in conduct that the lawyer knows is criminal or fraudulent. See rule 1.4(a)(4) regarding a lawyer’s obligation to consult with the client about limitations on the lawyer’s conduct. In some circumstances, a lawyer can avoid assisting a client’s crime or fraud by withdrawing from the representation in compliance with rule 1.16.
[4] Regarding a lawyer’s involvement in lawful covert activity in the investigation of violations of law, see rule 8.4, Comment [5].
More discussion on the changes for an attorney’s duty of candor can be found in Daily Journal, July 20, 2018, “The Duty of Candor is No Longer Just for the Courtroom” by Wendy L. Patrick. Available at ACLL in paper and on the public computers.
Resources for California Rules of Professional Conduct
- The State Bar’s web page on the revisions
- New Rules of Professional Conduct (download PDF of all Rules)
- Throughout the revised rules, the reader will see an “*” after a term. The “*” signifies a “defined term” – definition of which can be found in Rule 1.01.
- Rules Cross-Reference Table (including current Rule to new Rule, new Rule to current Rule, new Rule to ABA Model Rule)
On this topic, also available at the Alameda County Law Library:
The Rutter Group’s California Practice Guide: Professional Responsibility by Paul W. Vapnek, Mark L. Tuft, Ellen R. Peck and Justice Howard B. Wiener (Ret.), in hardcopy, KFC 76.5 .A2 C36 1997 and on Westlaw at the library.
