Ballot Push a Potential Speed Bump for California Rules Re-Do

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By Joyce E. Cutler

A San Jose State University mathematics instructor says his citizen initiative to force California to adopt the American Bar Association model rules is needed to protect clients with diminished mental capacity.

Michael Vartanian wrote a proposed initiative that in essence would undo a multiyear effort to revamp the rules governing how lawyers behave and practice. Vartanian’s very personal journey began with a friend with diminished capacity who wasn’t helped by the justice system and whom the new proposed rules wouldn’t help, either.

Vartanian takes issue with proposed Rule 1.14, which says a lawyer who thinks a client has diminished capacity must get the client’s consent before seeking help for the client. The corresponding ABA model rule doesn’t have a client consent requirement.

“I’m quite fervent about this cause” after seeing how the judicial system treated someone with diminished capacity who was unable to make decisions for herself, Vartanian told Bloomberg Law. “The basic thing is these people are kind of in the gray area as far as mental capacity goes.”

“That is exactly what the proposed rules here are missing. We are back in the 19th century as far as this kind of protection goes,” said Vartanian, who has a PhD in physics from Columbia University and a masters’ in math from SJSU, and is seeking a J.D. from Northwestern California University School of Law.

Vartanian’s first choice is to rewrite California’s proposed rule on clients with diminished capacity. “Just that one.” The second choice is for the state to adopt the ABA Model Rule 1.14. An initiative is “a last resort,” he said.

Vartanian, who admits paying signature gatherers the going rate of $5 per signature would bankrupt him, has until April 18, 2018, to gather 365,880 valid signatures to qualify for the ballot.

California Landscape

California is the only state that hasn’t yet remodeled its lawyer conduct rules along the lines of the ABA templates.

The ABA model rules and comments, which are guides to interpretation, were adopted by 37 states while seven states adopted the rules and not the comments as drafted, and six states adopted the rules with no comments, the ABA’s CPR Policy Implementation Committee said.

California has a set of rules that are similar to the ABA model, though the state “for whatever reason, decided to write its own ethics rules,” said John Steele, a Palo Alto, Calif., attorney and a former member of the bar’s standing Committee on Professional Responsibility and Conduct.

“In legal ethics, I’m well known as someone who thinks California’s decision is really dumb. It hurt the public. It hurt the clients, and hurt the lawyers,” Steele told Bloomberg Law.

“There’s no comparison. The ABA rules are vastly better for the public, clients, and lawyers because they’re clear,” Steele said Nov. 6, adding, “You really have a terrific set of rules on the ABA side” that can be tweaked to “preserve any unique wrinkles of California law.”

Maybe Not

Arnold Margolis, Margolis & Margolis LLP in Los Angeles who represents attorneys in the State Bar Court, has a different view of the ABA rules.

“I don’t understand why anyone would simply assume the ABA rules would be an improvement over what California’s doing,” Margolis told Bloomberg Law. “I think it would be more instructive for the ABA to take a look at what California’s doing and take some guidance from that.”

California’s rules have become more complex and detailed “but they’ve become that way because of what we’ve learned what’s needed in the practice of law and the experience the profession has had,” Margolis said Nov. 6.

Changing Rules

The initiative comes after two tries at rewriting and updating the California rules. A bar commission spent seven years devising new rules and sent them to the state Supreme Court for approval, only to have the court promptly call for a do-over.

A second commission in March—after 2 1/2 years of work—sent the court a package of 70 proposed rules outlining lawyer conduct, including how to deal with a client who can’t handle her own affairs.

The detailed California proposal allows a lawyer to take protective action under certain circumstances when a client has significantly diminished capacity, but the lawyer must explain why and obtain the client’s consent.

In seeking the client’s consent, a lawyer can get an appropriate person to help the lawyer communicate with the client, but in doing so the lawyer can’t disclose more information than necessary to protect the client from substantial physical, psychological or financial harm.

Lawyers can seek a client’s advance informed written consent to take protective action in the event certain circumstances later occur.

By contrast, ABA Model Rule 1.14 does not require that a lawyer get the client’s informed consent in order to seek help for a client the lawyer reasonably believes has diminished capacity and is at risk of suffering substantial physical, financial, or other harm.

More Protection

“Basically what they need is a relative or a friend to sit at their side when they’re consulting with an attorney,” Vartanian said. “These people cannot be left alone in an attorney’s office. They don’t fully understand. They have diminished capacity and the lawyer is too busy and these people are just too difficult to deal with unless they have a friend or relative sitting at their side smoothing things over.”

The California Attorney General’s office Oct. 20 prepared the initiative’s title and summary, which clears the measure to begin signature gathering.

“With the approval of the Supreme Court, the rules of professional conduct for all members of the State Bar shall be the Model Rules of Professional Conduct of the American Bar Association which the Board of Trustees may enforce,” the initiative said. “The Board may formulate and enforce variations to these Rules subject to the provisions of this Chapter.”

The Bar hasn’t taken a position on the initiative, “nor do I know if the Bar will take a position,” spokeswoman Rebecca Farmer said Nov. 8.

Letters

Vartanian in a Nov. 6 letter to California Attorney General Xavier Becerra (D) said if necessary protection is not available or required under the rule, “then there is an obvious gap in protection. Approval of this rule means that California would be the only state still adhering to a pre-1983 standard.”

The California Supreme Court clerk requested Vartanian submit a letter explaining the reason for the initiative.

“I assume that nothing will happen unless the either the Legislature or the AG gets actively involved. If they don’t, then I’ll start thinking about how to fund the initiative. Adopting the ABA Model Rules will be no more costly than adopting the proposed rules,” Vartanian said Nov. 7.

“I have no doubt if it got on the ballot it would pass readily,” Vartanian said.

To contact the reporter on this story: Joyce E. Cutler in San Francisco at JCutler@bna.com

The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.

 

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