Oct. 2 — The California Supreme Court has told the state bar to go a different direction in coming up with proposals to update California's lawyer conduct rules.
It took the state bar more than a decade to develop suggestions that were sent to the high court four years ago, and which went nowhere.
In August the bar abruptly changed course and quietly stopped trying to gain the justices' approval of the comprehensive rule revisions.
Now, the bar is going back to the drawing board to develop a new set of proposals under specific marching orders from the supreme court.
In a Sept. 19 letter, the court instructed the bar to try again. It directed the bar to put together a second “Commission to Revise the Rules of Professional Conduct” by Thanksgiving, and to submit its new proposals for the court's final consideration no later than March 31, 2017.
The letter makes plain that the court wants to have plenty of input along the way.
The same day, the supreme court returned all of the proposed rule updates the bar has submitted for the court's consideration over the past two years.
That step was taken in a Sept. 19 order reprinted in the docket of the California Supreme Court case where the bar's petitions to update the state's lawyer conduct rules have been filed. The case is now closed (Rules of Professional Conduct.
The 2010 revisions followed the Model Rules' format, although the bar made significant departures in the substance of many of the California versions. The rules were developed by the bar's Commission for the Revision of the Rules of Professional Conduct, which began its work on updating the rules in 2001.
Without the supreme court's approval, the updated rules never took effect.
California is the only state that has not remodeled its lawyer conduct rules along the lines of the ABA templates, which were first issued in 1983.
The court's action came as a bolt from the blue to lawyers waiting to hear the fate of the proposed rules.
In an interview with Bloomberg BNA, longtime commission member Paul W. Vapnek said neither the bar nor the court had contacted him about the new plans, either before or afterward. He is a co-author of the California practice guide Professional Responsibility and served as co-vice-chair of the commission.
“To the best of my knowledge no one on the commission had a hint that this was in the works,” Vapnek said.
“We had a lot of very high-priced lawyers working for nothing, putting in thousands of hours, and they just throw it in the garbage,” Vapnek said. “‘Disappointing' is hardly the word.”
Vapnek said the commission's work was public and subject to scrutiny over the years, not done in secret. “We did what we were asked to do,” he added.
Speculating on factors that may have led to the court's response, Vapnek pointed out that during the commission's work the bar's Office of Chief Trial Counsel resisted the idea of shifting to a version of the ABA Model Rules.
Vapnek also noted that the composition of the supreme court has changed in recent years.
In the past two years the bar sent the court a total of 17 proposed rules, one at a time, for its consideration, along with voluminous background materials.
But in August Joseph L. Dunn, the state bar's executive director and CEO, asked the court to return these filings to the bar “for further action” in “a renewed and targeted process” that would involve a “comprehensive reconsideration” of the proposed updates.
It had become apparent, Dunn said in his Aug. 11 letter to the court, that “under the current approach we cannot avoid a lengthy and unwieldy process going forward.”“The issue is a procedural one—how best to present the rules to the court so they are digestible for the court.”Joseph L. Dunn California State Bar
Dunn said that bar staff had invested “significant time and hard work” in providing memorandums and support for the revised rules to the court. Moreover, he said, the court and its staff had expended substantial time in reviewing the analyses of the 17 rules—and 50 rules had not even been presented to the court yet.
But Dunn told the justices the process had been hampered by current staff members' lack of information about rules developed by a commission appointed more than 10 years ago, and about the reasoning underlying approval of the rules by the bar's board of governors.
“Bar and court staff believe that the process could be expedited, the burden on the court and on court and bar staff lessened, and the ultimate product enhanced if the State Bar were to undertake a comprehensive reconsideration of the draft rules to be completed within a set time frame,” Dunn wrote.
Regarding the bar's decision to change course, Dunn told Bloomberg BNA, “The issue is a procedural one—how best to present the rules to the court so they are digestible for the court.”
The project to update California's lawyer conduct rules will go forward in keeping with the court's Sept. 19 letter, Dunn said.
Dunn arranged for the bar to provide Bloomberg BNA with a copy of the court's letter to the bar.
The letter, signed by Court Administrator Frank A. McGuire, describes a series of recommendations the justices approved to guide the bar in its task of revising the professional conduct rules.
“The court asks that bar staff consult with court staff to establish the size and composition of the second Commission, and to discuss some of the issues that have arisen in the review process to help focus the second Commission's work,” McGuire's letter states.
The court indicated it will appoint a nonvoting member from court staff to sit on the commission.
In developing a formal charge for the commission, McGuire said, the drafters should be guided by the four policy considerations in the first commission's charge:
Speaking for the court, McGuire urged the second commission to begin with the current California Rules of Professional Conduct “and focus on revisions that are necessary to address developments in the law, and that eliminate, where possible, any unnecessary differences between California's rules and those used by a preponderance of the states.”
Moreover, the second commission should be guided by the principle that “the proposed rules should remain a set of minimum disciplinary standards,” the letter states.
While the second commission may look to the ABA Model Rules where appropriate, the commission “should avoid incorporating the purely aspirational or ethical considerations that are present in the Model Rules and Comments,” McGuire stated.
Comments to the proposed rules should be used sparingly and only to explain the rules, not to augment them, he added.
Last spring a group of law professors sent the court a letter commenting on the proposed rules.
The 15-page letter, which was signed by dozens of professors who teach legal ethics and professional responsibility in California, argued that overall the proposed rules were too lawyer-protectionist.
The professors also said that in some respects the proposed California rules were not closely enough aligned with the ABA Model Rules and that to be effective the black-letter rules must provide guidance for the average practitioner, not serve only as rules of discipline for lawyers accused of offenses.
To contact the reporter on this story: Joan C. Rogers in Washington at email@example.com
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The state bar's Aug. 11 letter to the supreme court is at http://op.bna.com/mopc.nsf/r?Open=jros-9pgt7y.
The supreme court's Sept. 19 letter to the bar is at http://op.bna.com/mopc.nsf/r?Open=jros-9pgtfz.
The California law professors' letter to the supreme court is at http://op.bna.com/mopc.nsf/r?Open=jros-9phra9.
The ABA/BNA Lawyers’ Manual on Professional Conduct is a joint publication of the American Bar Association Center for Professional Responsibility and Bloomberg BNA.
Copyright 2014, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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