California Lawyers Association
CALIFORNIA ETHICS ANNUAL REVIEW 2025
CALIFORNIA ETHICS ANNUAL REVIEW 2025
Written by Neil J Wertlieb*
This article highlights the ethics advisory opinions that were issued during 2025 by the California State Bar’s Committee on Professional Responsibility and Conduct (“COPRAC”), the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (“ABA”), the Los Angeles County Bar Association Professional Responsibility and Ethics Committee (“PREC”), and the California Supreme Court’s Committee on Judicial Ethics Opinions (“CJEO”), as well as recent changes in the California Rules of Professional Conduct (the “California Rules”), the State Bar Act, and other regulatory law impacting the conduct of attorneys licensed in the State of California.[1]
The conduct of attorneys licensed in the State of California is regulated by, among others, the California Rules, the State Bar Act (California Business and Professions Code, § 6000 et seq.), the California Rules of Court, the State Bar Rules, and opinions of California courts.[2] The advisory opinions of ethics committees in California (including those cited herein) are not binding on California-licensed attorneys, but should be consulted for guidance on proper professional conduct.[3] The advisory opinions of other bar associations (including the ABA) may also be considered, but note that such opinions may be based on rules of professional conduct (such as the ABA’s Model Rule of Professional Conduct) that differ significantly from the California Rules.[4]
I. Final Rule Changes
A. Amended Rule of Court 9.7: Attorney Oath and Annual Declaration
By an order dated September 25, 2025, the California Supreme Court approved an amendment to California Rule of Court, rule 9.7 (effective October 1, 2025), to require lawyers to annually affirm or reaffirm their civility oath.[5] Paragraph (a) of Rule of Court 9.7, as amended, contains the same language previously set forth in the Rule – i.e.:
(a) Oath required when admitted to practice law
In addition to the language required by Business and Professions Code section 6067, the oath to be taken by every person on admission to practice law is to conclude with the following: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”
The amendment now requires an annual affirmation or reaffirmation of that civility oath (in new paragraph (b) of the Rule), and imposes penalties for noncompliance (in new paragraphs (c), (d) and (e) of the Rule), set forth below:
(b) Annual declaration
Each active licensee and each special admissions attorney (permitted to practice law in the State of California under rules 9.41.1, 9.44, 9.45, or 9.46) must, pursuant to the procedure adopted by the State Bar, declare adherence to the oath language provided by (a) of this rule and Professions Code section 6067 on an annual basis.
(c) Implementation schedule and penalty for noncompliance
- The State Bar must develop a schedule to implement the submission of the declaration required by (b) of this rule by the deadline for the payment of the annual license fee.
- Beginning on April 1, 2026, an active licensee or special admissions attorney who fails to submit the annual declaration as required by this rule must be enrolled as an inactive licensee of the State Bar under rules adopted by the Board of Trustees of the State Bar.
(d) Authorization for the Board of Trustees of the State Bar to adopt rules and procedures
The Board of Trustees of the State Bar is authorized to adopt such rules and procedures as it deems necessary and appropriate to ensure compliance with this rule.
(e) Fees and penalties
The State Bar has the authority to set and collect appropriate fees and penalties for violations of this rule.
Proposed Amendment to Rule 2.3 of the State Bar Rules
Note that amended Rule of Court 9.7(c) specifically directed the State Bar of California to implement a schedule and penalty for failure to comply with the rule’s provisions, resulting in proposed revisions to a related State Bar Rule, Interim Rule 2.3 (Noncompliance with Attorney Civility Oath Requirement), which revisions have been released for public comment, with a deadline of December 26, 2025.[6]
B. California Supreme Court Rejected Proposed Changes to the California Rules to Address Civility[7]
By the same September 25, 2025 order approving Rule of Court 9.7, the California Supreme Court rejected changes to the California Rules proposed by the State Bar that were intended to promote civility, professionalism, and mutual respect within the legal profession.
The Proposed Rules of Professional Conduct
In July 2023, the State Bar’s Board of Trustees approved certain proposed rule amendments intended to improve civility among lawyers authorized to provide legal services in California. The proposed changes, based on recommendations of the California Civility Task Force, were submitted in August 2023 to the California Supreme Court for review and approval. The State Bar’s proposed changes included the following:
First, the State Bar had proposed adding to Comment [1] to California Rule 1.2 (Scope of Representation and Allocation of Authority) the following sentence:
Notwithstanding a client’s direction, a lawyer retains the authority to agree to reasonable requests of opposing counsel or self‐represented parties that do not prejudice the rights of the client, be punctual in fulfilling all professional commitments, avoid offensive tactics, and treat all persons involved in the legal process with dignity, courtesy, and integrity.
Second, the State Bar proposed revising the Comments to California Rule 8.4 (Misconduct) to add a second sentence to existing Comment [4] and to add new Comment [6]:
[4] A lawyer may be disciplined under Business and Professions Code section 6106 for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent. A lawyer also may be disciplined regarding significantly unprofessional conduct that is abusive or harassing, see rule 8.4.2.
[6] A lawyer’s violation of paragraph (d) includes engaging in significantly unprofessional conduct that is abusive or harassing in the practice of law as defined in rule 8.4.2. A lawyer does not violate paragraph (d) merely by, for example, standing firm in the position of the client, protecting the record for subsequent review, or preserving professional integrity.
For further guidance, a lawyer should consult the current California Attorney Guidelines of Civility and Professionalism and other applicable legal authorities, such as the local rules of court and bar associations’ codes of civility.
Third, the State Bar proposed adding new California Rule 8.4.2 (Prohibited Incivility) [Comments omitted]:
(a) In representing a client, a lawyer shall not engage in incivility in the practice of law.
(b) For purposes of this rule, “incivility” means significantly unprofessional conduct that is abusive or harassing and shall be determined on the basis of all the facts and circumstances surrounding the conduct.
The Supreme Court’s Explanation for Rejection and Recommendation for Going Forward
The California Supreme Court declined to make the changes proposed by the State Bar to the California Rules, stating:
Although the Court appreciates the effort to promote civility, professionalism, and mutual respect within the legal profession, the Court is concerned that the proposed definition of prohibited incivility may present vagueness concerns under the First Amendment. (See Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, 1049 [holding that an attorney disciplinary rule was void for vagueness because it relied on words that “have no settled usage or tradition of interpretation in law,” and the rule “has no principle for determining” what conduct is permitted or not permitted].) …
The Court encourages the State Bar to explore the possibility of codifying existing case law reducing requests for attorney fees based on an attorney’s incivility. The State Bar is also encouraged to study the effect of the new continuing education requirements addressing civility in the legal profession.
Precisely how the State Bar might codify existing case law per the Supreme Court’s recommendation remains to be seen. Be sure to tune in next year as we continue to monitor changes in the law of lawyering.
II. Proposed Rule Changes
During 2025, the State Bar of California issued for public comment the following proposed new or amended rules to regulate the conduct of attorneys licensed in the State of California, none of which have yet been approved by the State Bar. The details of such proposals, as well as the procedures available to provide public comment, can be found on the State Bar website.
- Proposed Amendment to California Rule 7.3 (Solicitation of Clients)[8]
Background: On May 9, 2025, COPRAC approved proposed amended California Rule 7.3 for public comment. As stated in its public release, COPRAC had received public comments from domestic violence legal service providers across California raising concerns about attorney solicitation practices in domestic violence restraining order (“DVRO”) cases. Specifically, such providers had reported a dangerous trend of attorneys soliciting respondents before they have been formally served. This conduct is concerning because it can alert alleged abusers to the existence of the DVRO request prematurely, at a time recognized by law as particularly dangerous for victims.[9] Early solicitation may jeopardize safety planning, increase the risk of retaliatory abuse, allow respondents to evade service, and undermine survivors’ trust in the legal system—ultimately deterring them from seeking necessary legal protections. The proposed amended rule is intended to address these concerns while preserving respondents’ right to counsel.
California Rule 7.3: The proposed amendment would add the following paragraph (f) and Comment [5] to the Rule:
(f) Even when not otherwise prohibited by this rule, a lawyer shall not solicit professional employment from a respondent in a domestic violence restraining order proceeding in connection with such proceeding, until after the respondent has been legally served with notice of the proceeding and proof of service appears on the court docket.
[5] Paragraph (f) addresses solicitation in domestic violence restraining order proceedings where solicitation of respondents prior to legal service may increase the risk of petitioner facing abuse, violence or even death. This limitation serves the State Bar’s mission to protect the public, as recognized in Business and Professions Code section 6001.1.
B. Proposed Amendment to California Rules 8.2 (Judicial Officials) and 8.4 (Misconduct)[10]
Background: On November 26, 2024, the California Judges Association submitted a request to COPRAC that the State Bar of California make modifications to the California Rules in response to increased public criticism resulting in threats and violence against judges due to their rulings. COPRAC prepared proposed amendments to California Rules 8.2 and 8.4 that would clarify that lawyers must not make false or misleading statements to the public and media that could prejudice judicial proceedings or endanger judicial officers and court personnel where such statements are not protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.
California Rule 8.2: The proposed amendments would add the following as Comment [1] to California Rule 8.2:
[1] A statement that is asserted as opinion may be the basis for discipline if the “statement implies actual facts that are capable of objective verification,” those facts are false, and the statement is made with knowledge or reckless disregard of the truth or falsity of those facts. (See In re Yagman (9th Cir. 1995) 55 F.3d 1430, 1441.)
California Rule 8.4: The proposed amendments would add the following as Comment [7] to California Rule 8.4:
[7] Unprotected activities, including speech, that may be the basis for discipline under paragraph (c) or (d) include: (1) a statement made with the specific intent of producing imminent lawless action against a judge or judicial officer and likely to do so (Counterman v. Colorado (2023) 600 U.S. 66 [143 S.Ct. 2106]; Brandenburg v. Ohio (1969) 395 U.S. 444, 447 [89 S.Ct. 1827] (per curiam)); (2) a true threat of violence, that is, a statement that a reasonable observer would understand to be a “serious expression” conveying that the speaker means to “commit an act of unlawful violence” against a judge or judicial officer made with intent, knowledge, or reckless disregard that others could regard the statement as threatening violence (Counterman v. Colorado, supra, 600 U.S. at p. 74); and (3) a false statement of fact, or a statement asserted as opinion that “implies actual facts that are capable of objective verification” that are false, regarding a judge or judicial officer made with knowledge or reckless disregard of the truth or falsity of the facts (In re Yagman (9th Cir. 1995) 55 F.3d 1430, 1441), using an objective standard to determine “what a reasonable attorney, considered in light of all [their] professional functions, would do in the same or similar circumstances.” (United States Dist. Ct. v. Sandlin (9th Cir. 1993) 12 F.3d 861, 867. See also rule 8.2(a); Bus. & Prof. Code, § 6068, subd. (b).)
III. Changes to the State Bar Act
A. Amendments to California Legal Advertising and Solicitation Statutes in the State Bar Act (Bus. & Prof. C. §§ 6150-6159.2)
Effective January 1, 2026, major amendments to the State Bar Act’s Legal Advertising and Solicitation Rules, Bus. & Prof. Code §§ 6150-6159.2, will become effective and will likely result in significant changes in the regulatory landscape for legal advertising and the solicitation of legal business in California. The changes can be found in two bills that have been signed into law by Governor Newsom: Senate Bill 37 (Chaptered 10/11/25) and Assembly Bill 931 (Chaptered 10/10/25).[11]
Perhaps the most notable changes are SB37’s creation of private rights of action that permit any person, not just a client who might have been injured, to file a complaint against a lawyer who has violated certain statutes, including Bus. & Prof. Code § 6152 (Prohibition of Solicitation), § 6155 (Lawyer Referral Services), § 6157.1 (Advertisements–False, Misleading or Deceptive), and § 6157.2 (Advertisements–Guarantees, Settlements, Impersonations, Dramatizations and Contingent Fee Basis). These changes can be found in new section 6156.5 (Private Right of Action for Violations of Section 6155) and amended sections 6153 (Private Right of Action for Violation of Prohibition on Solicitation), 6157.2 (Private Right of Action for Violations of §§ 6157.1 and 6157.2).
In addition, Bus. & Prof. Code § 6158.7 has been amended to make lawyers subject to discipline for violations of §§ 6157.1, 6157.2(a) and (b), and 6157.3.
B. Amendments to Statutes Governing Referral Fees and Regulations Concerning Consumer Litigation Funding (Bus. & Prof. Code §§ 6156 & 6250 et seq.)
Assembly Bill 931’s most notable change is new section 6156, which will prohibit lawyers licensed or otherwise authorized to practice in California (e.g., lawyers who are permitted to practice under Rules of Court, rules 9.40-9.48) from sharing legal fees either directly or indirectly with an alternative business structure (“ABS”) unless certain conditions are satisfied. An “Alternative Business Structure” is defined as “any entity that provides legal services while allowing nonattorney ownership or decision-making authority.” At present, only Arizona, D.C. and Utah permit ABSs to provide legal services. In addition to new section 6156, AB 931 provides for extensive sections regulating consumer litigation financing.[12]
IV. Final Advisory Opinions
A. State Bar Formal Ethics & Arbitration Opinions
COPRAC Arbitration Advisory No. 2025-01: Determination of a “Reasonable” Fee (May 2025)[13]
An arbitrator is sometimes called upon to determine the amount of reasonable fees to be awarded to an attorney. This situation arises most commonly when the attorney has failed to obtain a written agreement with the client, or when the written agreement between the parties does not comply with the requirements of Business and Professions Code sections 6147 or 6148. In such cases, the agreement is voidable at the option of the client, and the attorney is limited to a “reasonable” fee. Where the fee contract fully complies with the statutory requirements sections 6147 through 6148 and is otherwise enforceable, the arbitrators should enforce the contract; however, they still may consider the value of the services to the client as affected by inefficiencies, quality of the services or the attorney’s performance. (See Arbitration Advisory 2024-01, Standard of Review in Fee Dispute Where There is a Written Fee Agreement.) Additional factors must be considered when an attorney seeks an award of a reasonable fee after the written fee agreement has been voided for the attorney’s breach of an ethical duty. This arbitration advisory explores the factors which are applicable in determining the amount of such a “reasonable” fee.
B. Local California Bar Association Opinions – Los Angeles County Bar Association[14]
PREC Opinion No. 534 (May 28, 2025): What are the Ethical Duties of a Contingent Fee Lawyer to Quantify its Fee Lien When Successor Lawyer Resolves the Case?
This opinion addresses the ethical duties owed to a client by a predecessor attorney who has a valid contractual lien on the client’s recovery to quantify the lawyer’s quantum meruit lien and the corresponding duties of the successor attorney. PREC concludes that a predecessor attorney has a duty to account to the former client, upon the client’s request, regarding the quantum meruit value of the services rendered as to which the predecessor attorney claims a lien.
This opinion expressly only addresses the ethical duties required of the predecessor and successor attorneys to account to the client for their respective lien claims in a matter involving a contingent fee, and specifically does not address the question whether a successor attorney may ethically include in his or her fee agreement a provision that would place upon the client the burden to pay both attorneys an amount greater than the amount of one of the contingent fees.
PREC Opinion No. 535 (May 28, 2025): May a Lawyer Ethically Charge a Client for the Lawyer’s Own Time Spent and for Out-of-Pocket Costs the Lawyer Incurs, in Collecting Claimed Fees from a Former Client?
The charges that a lawyer may impose on a client in a representation subject to an enforceable written fee agreement are limited to those effectively disclosed in the applicable fee agreement, subject to rule 1.5 of the California Rules of Professional Conduct and as limited by case law. The charges that a lawyer may impose on a client without a written fee agreement are limited to those that provide a benefit to the client.
Accordingly, a lawyer may charge a former client for out-of-pocket legal fees the lawyer incurs collecting fees from the former client only if there is an enforceable written fee agreement that so provides; a lawyer otherwise may not charge a former client for the lawyer’s own time spent collecting fees from the former client.
PREC Opinion No. 536 (June 11, 2025): Does a Lawyer have a Conflict of Interest in Advising and Representing a Client About Prior Work for the Client by the Lawyer or the Lawyer’s Law Firm?
It generally is permissible for a lawyer to advise and represent a client about prior work for the client by the lawyer or the lawyer’s law firm. However, the lawyer must be alert to the possibility that the lawyer will not be able to perform all duties owed to the client due to the lawyer’s self-interest or the lawyer’s relationship with others who might be affected by the lawyer’s advice to the client.
C. ABA Formal Opinions
ABA Opinion 514 (January 8, 2025): A Lawyer’s Obligations When Advising an Organization About Conduct that May Create Legal Risks for the Organization’s Constituents[15]
The opinion’s digest provides:
“When advising an organization, lawyers necessarily provide their legal advice through constituents such as employees, officers, or board members. At times, the organization’s decisions may have legal implications for its constituents who will be acting on the organization’s behalf, including the constituents through whom the lawyer conveys advice. This situation implicates both the lawyer’s duties to the organization client and the lawyer’s professional obligations in interacting with the nonclient constituents of the organization.
The Model Rules of Professional Conduct set forth a general standard of competent representation under Rule 1.1, necessary communication under Rule 1.4, and candid advice under Rule 2.1. Where a lawyer—in-house or outside counsel—is giving advice to an organization client about future action of the organization, these provisions may require the lawyer to advise the organization when its actions pose a legal risk to the organization’s constituents.
When an organization’s lawyer provides advice to the organization about proposed conduct that may have legal implications for individual constituents, the constituents through whom the lawyer conveys advice may misperceive the lawyer’s role and mistakenly believe that they can rely personally on the lawyer’s advice. Rules 4.1, 4.3, and 1.13(f) require an organization’s lawyer to take reasonable measures to avoid or dispel constituents’ misunderstandings about the lawyer’s role.
An organization’s lawyer may want to instruct or remind an organization’s constituents about the lawyer’s role early and often during the relationship, not only at times when constituents might rely to their detriment on a misunderstanding of the lawyers’ role. Educating an organization’s constituents who may receive the lawyer’s advice in the future will lay the groundwork for later situations where lawyers may be advising the organization on matters with legal implications for the organization’s constituents.”
ABA Opinion 515 (March 5, 2025): A Lawyer’s Discretion to Report When a Client Commits a Crime Against the Lawyer or Against Someone Associated with, or Related to, the Lawyer[16]
The opinion’s digest provides:
“A lawyer who is the victim of a crime by a client or prospective client may disclose information relating to the representation to the appropriate authority in order to seek an investigation and potential prosecution of the alleged offender or other services, remedy, or redress. To the extent that the information would otherwise be subject to the lawyer’s duty of confidentiality under Model Rule of Professional Conduct 1.6, the information is subject to an implicit exception to the Rule.
This implicit confidentiality exception also applies when someone associated with the lawyer or related to the lawyer is a victim of the client’s crime and the lawyer is a witness to that crime.”
As noted in the introduction to this article, the Model Rules and California Rules diverge significantly, particularly with respect to confidentiality duties. It is important to note that California does not recognize implied exceptions to confidentiality.
ABA Opinion 516 (April 2, 2025): Terminating a Client Representation Under MRPC 1.16(b)(1): What “Material Adverse Effects” Prevent Permissive Withdrawal?[17]
The opinion’s digest provides:
“ABA Model Rule of Professional Conduct 1.16(b)(1) permits a lawyer to voluntarily end, or seek to end, an ongoing representation if “withdrawal can be accomplished without material adverse effect on the interests of the client.” A lawyer’s withdrawal would have a “material adverse effect on the interests of the client” if it would result in significant harm to the forward progress of the client’s matter, significant increase in the cost of the matter, or significant harm to the client’s ability to achieve the legal objectives that the lawyer previously agreed to pursue in the representation. A lawyer may be able to remediate these adverse effects and withdraw in a manner that avoids or mitigates the harm that the Rule seeks to prevent. The lawyer’s motivation for withdrawal is not relevant under Model Rule 1.16(b)(1). Therefore, under the Model Rules, if the lawyer’s withdrawal does not cause “material adverse effect” to the client’s interests in the matter in which the lawyer represents the client, a lawyer may withdraw to be able to accept the representation of a different client, including to avoid the conflict of interest that might otherwise result.”
NOTE: ABA Opinion 516 contains a Dissent (which is extremely rare), stating: “The opinion fails to address the breadth of precedent on the “hot potato” doctrine, and we are concerned that by seeming to dismiss this judicial doctrine as involving a handful of outlier cases, the opinion may mislead lawyers about the law. The opinion is incomplete, and thus also incorrect, because it does not directly answer whether terminating a client for the purpose of turning around and filing suit against it for another client could itself qualify as an act inflicting a material adverse effect on the interests of the client being dropped under Rule 1.16(b)(1).” Also note that, because the “hot potato” doctrine applies to California-licensed lawyers, ABA Opinion 516 appears to be contrary to California law.[18]
ABA Opinion 517 (July 9, 2025): Discrimination in the Jury Selection Process[19]
The opinion’s digest provides:
“A lawyer who knows or reasonably should know that the lawyer’s exercise of peremptory challenges constitutes unlawful discrimination in the jury selection process violates Model Rule 8.4(g). It is not “legitimate advocacy” within the meaning of Model Rule 8.4(g) for a lawyer to carry out a trial strategy that would result in unlawful juror discrimination. A lawyer may not follow a client’s directive or accept a jury consultant’s advice or AI software’s guidance to exercise peremptory challenges if the lawyer knows or reasonably should know that the conduct will constitute unlawful juror discrimination. However, a lawyer does not violate Rule 8.4(g) by exercising peremptory challenges on a discriminatory basis where not forbidden by other law.”
NOTE: ABA Opinion 517 largely relies on ABA Model Rule 8.4(g), which only a few jurisdictions have adopted. Lawyers practicing in California, however, need to be familiar with California Rule 8.4.1, which goes into substantially more detail regarding prohibited discrimination than does the Model Rule. Further, California Rule 8.4.1 explicitly provides that a lawyer must not “unlawfully harass,” or “unlawfully discriminate,” or “unlawfully retaliate,” so question whether the last sentence of Opinion 517’s digest would create a safe harbor for a lawyer practicing in California.
ABA Opinion 518 (October 15, 2025): A Lawyer’s Duties to Avoid Misleading Communications When Acting as a Third-Party Neutral Mediator[20]
The opinion’s digest provides:
“Rule 2.4 of the ABA Model Rules of Professional Conduct addresses a lawyer’s duties when acting as a third-party neutral and defines third-party neutral as a lawyer who assists two or more persons – who are not clients of the lawyer – to reach a resolution of a dispute.
Under Rule 2.4(b), a lawyer acting as a third-party neutral must inform unrepresented parties that the lawyer-mediator does not represent them. Paragraph (b) also requires the lawyer-mediator to explain the difference between the lawyer-mediator’s role as a third-party neutral and the role of a lawyer representing a client in a mediation when the lawyer knows or reasonably should know that the parties do not understand the mediation process. Therefore, in most instances, unless the parties are sophisticated consumers of mediation services, the lawyer-mediator should ensure that all persons involved in the mediation understand the role of the lawyer-mediator.
Although a lawyer is not subject to many of the Model Rules when acting as a third-party neutral mediator, a lawyer-mediator is subject to Rule 8.4(c), which prohibits a lawyer from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation. A lawyer-mediator may not give credence to statements the lawyer-mediator knows to be false or personally make statements that the mediator knows to be false.”
ABA Opinion 519 (December 3, 2025): Disclosure of Information Relating to the Representation in a Motion to Withdraw From a Representation[21]
The opinion’s digest provides:
“When moving to withdraw from a representation, a lawyer’s disclosure to the tribunal is limited by the duty of confidentiality established by Rule 1.6(a) of the ABA Model Rules of Professional Conduct. Unless an explicit exception to the duty of confidentiality applies or the client provides informed consent, the lawyer may not reveal “information relating to the representation” in support of a withdrawal motion. Disclosure of information relating to the representation is not “impliedly authorized in order to carry out the representation” under Rule 1.6(a) or otherwise impliedly authorized even when Rule 1.16(a) requires the lawyer to seek to withdraw. If disclosure is permitted by an exception to the duty of confidentiality, such as when disclosure is required by a court order, it must be strictly limited to the extent reasonably necessary and, whenever possible, made through measures that protect confidentiality such as by making submissions in camera or under seal.
The Model Rules require that any disclosure in support of withdrawal be narrowly tailored, protective of the client’s interests, and undertaken only within the scope of an applicable exception. When the client does not give informed consent to disclosing information relating to the representation in support of a motion to withdraw, and there is no applicable exception to the duty of confidentiality, lawyers should proceed in stages: begin with a motion citing only “professional considerations” or employing similar language to justify the motion; if the court seeks further information, assert all non-frivolous claims for maintaining confidentiality consistent with Rule 1.6(a); and, if ordered to disclose additional information relating to the representation, do so in the narrowest possible manner. Ultimately, the lawyer’s paramount duty is to preserve client confidentiality, even at the risk that the tribunal may deny the motion to withdraw.”
NOTE: ABA Opinion 519’s conclusions appear to be in line with those reached in Cal. State Bar Formal Opinion 2015-192, regarding the duties of a California lawyer when moving to withdraw in a matter before a tribunal.[22] Nevertheless, California lawyers are best served by referring to the guidance provided in the State Bar opinion as the ABA Model Rules include many more exceptions to confidentiality than do California Rule 1.6 or Bus. & Prof. Code § 6068(e).
D. Formal Opinions of the California Supreme Court Committee on Judicial Ethics[23]
Included below are the issues addressed and the Committee’s digest of the advice provided and, where appropriate, a brief statement of the facts presented.
CJEO Opinion 2025-028 (August 7, 2025): Disqualification and Disclosure Requirements Under the Racial Justice Act
Question: The California Supreme Court Committee on Judicial Ethics Opinions (CJEO or the Committee) has been asked to address the ethical issues regarding disqualification and disclosure requirements in cases involving Racial Justice Act claims.
Facts: The requesting judge seeking the Committee’s opinion is presiding over a criminal case where the charges include firearm enhancements under Penal Code section 12022.53, subdivision (d) that carry a potential exposure of an additional and consecutive term of imprisonment for 25 years to life (“the current case”). The defense attorney in this matter filed a motion pursuant to the Racial Justice Act (Pen. Code, § 745, subd. (d)) (“Racial Justice Act”) seeking discovery back to the year 2000 from the county district attorney’s office of all cases where the initial charges filed included firearm enhancements that would potentially expose defendants to a life sentence.
Before being appointed to the bench, the requesting judge worked in the county district attorney’s office from 1998 to 2010. While working as a prosecutor, the judge personally handled cases involving firearm enhancements in both the gang and homicide units, although they never handled any cases involving the defendant in the current case. The judge did not serve in any administrative or management capacity in the district attorney’s office that involved policy making or charging decisions. The question is whether the judge is now required to disqualify from the current case, and if not, what must the judge disclose.
Advice Provided: A trial judge who worked as a prosecutor prior to taking the bench must be disqualified from a case: (1) if the judge actively participated in some substantive aspect of the prosecution of the current case against this defendant; (2) if the judge actively participated in the prosecution of a previous case against this defendant that is alleged as a prior for sentencing purposes in the present case; (3) if the judge believes their recusal would further the interests of justice; (4) if the judge believes there is a substantial doubt as to the judge’s capacity to be impartial; or (5) where a person aware of the facts might reasonably entertain a doubt that the judge would be able to be impartial. (Cal. Code Jud. Ethics, Canon 3E(2); Cal. Code Civ. Proc., § 170.1.)
However, a judge is not automatically required to recuse merely because the judge, while working as a deputy district attorney, handled cases involving elements that may be subject to discovery under a motion pursuant to the Racial Justice Act or that could be used to establish a violation of the Act in the case before them. Nevertheless, disqualification is required if the judge’s prior prosecutorial involvement was such that a reasonable person, aware of the circumstances, could justifiably doubt the judge’s ability to remain impartial. Where a judge decides not to disqualify from a case, the judge must disclose on the record any facts reasonably relevant to the determination of disqualification. This includes any facts the judge considered when deciding not to disqualify.
Accordingly, based on the facts presented by the requesting judge, the Committee advises that the judge need not disqualify but should disclose, on the record, any information reasonably relevant to the issue of disqualification under Code of Civil Procedure section 170.1, including all facts the judge considered in deciding against disqualification. (Canon 3E(2)(a)).
CJEO Opinion 2025-030 (August 20, 2025): Participation in Inns of Court
Question: What are a judicial officer’s ethical obligations as they pertain to participation in American Inns of Court?
Advice Provided: Judicial membership in Inns of Court is not only permitted, but encouraged, under the provisions of the Code of Judicial Ethics that discuss judicial engagement in activity that relates to the law, the legal system, or the administration of justice. Membership, serving on a pupilage team, and performing in a leadership role are all considered laudable forms of judicial engagement.
Any ethical considerations relating to Inn participation can typically be addressed through well-established tools such as disqualification, disclosure, and common sense. Judicial participation in Inns of Court alongside attorneys is generally presumed to be in the realm of a professional relationship or acquaintanceship that does not require disqualification or disclosure. The mentorship aspect of Inns of Court may in some instances give rise to ethical concerns, but this is uncommon. In the unlikely event a judge develops a professional relationship or a friendship with a mentee lawyer that impacts, or may appear to impact, the judge’s ability to act impartially, the judge should consider disqualification or disclosure in accordance with Canon 3E and section 170.1 of the Code of Civil Procedure.
Other potential ethical concerns in the context of Inns of Court include membership solicitation (judges may solicit members so long as the solicitation could not reasonably be perceived as coercive and is not essentially a fundraising mechanism), educational activities (judges must remain neutral, avoid bias or the appearance of bias, and avoid indicating prejudgment of issues), and networking in-person and online (generally permitted, but judges must take care to avoid lending the prestige of the judicial office, casting doubt on a judge’s ability to act impartially, and demeaning the judicial office).
E. Ethics Opinions From Other Jurisdictions
District of Columbia Bar Ethics Opinion 391 (October 2025): Lawyers and Law Firms That Contemplate Agreeing with Governments to Conditions That May Limit or Shape Their Law Practices[24]
The opinion’s digest provides:
“The D.C. Bar Legal Ethics Committee has received inquiries from bar members related to prospective agreements between a government and lawyers or law firms with conditions that may limit or shape their law practices. Lawyers and law firms must consider whether such conduct will raise issues under the District of Columbia Rules of Professional Conduct. These could include conflicts of interest for current or future engagements adverse to that government, improper restrictions on the lawyers’ right to practice, and interference with the lawyers’ professional independence. If a conflict is found to exist, obtaining a valid waiver may be difficult.
Lawyers acting on behalf of a government in seeking, negotiating, or implementing such agreements also must examine the Rules of Professional Conduct, particularly those regarding restrictions on lawyers’ right to practice and lawyers’ professional independence.”
V. Proposed Advisory Ethics Opinions of the State Bar
During 2025, COPRAC issued for public comment the following proposed advisory opinions, none of which have yet been approved by the State Bar of California. The details of such proposed advisory opinions, as well as the procedures available to provide public comment, can be found on the State Bar website.
Proposed COPRAC Formal Opinion Interim No. 19-0004: Client File Release and Retention Duties[25]
Issues: What are the ethical obligations of lawyers with respect to retention and destruction of client files, materials, and property in closed civil and criminal matters?
Digest: California Rules of Professional Conduct do not specify a fixed retention period for closed client files. A lawyer’s file retention duties generally turn on the lawyer’s obligations as the bailee of the client’s papers and property and the lawyer’s duty to avoid reasonably foreseeable prejudice to a former client. If not returned to the client, original documents, property furnished to the lawyer by the client, and items of intrinsic value must be retained by the lawyer and cannot be discarded or destroyed without the client’s consent. In civil matters, absent an agreement to the contrary, other client materials and property may only be destroyed after the lawyer uses reasonable means to notify the client of their intended destruction and gives the client a reasonable time to respond. If a client cannot be located or fails to respond to reasonable notice of intended destruction of the file, the lawyer may destroy items whose retention is not required by law and is not necessary to avoid reasonably foreseeable prejudice to the client. Items that the lawyer believes are reasonably necessary to the representation may be preserved in electronic form only, unless the lawyer believes the loss of physical copies will prejudice the rights of the client.
In closed criminal matters, absent an agreement to the contrary, client files should not be destroyed without a client’s express consent while the client is alive. California Penal Code section 1054.9 requires trial counsel to retain a copy of a client’s files for the term of imprisonment where the client is convicted of a serious or violent felony resulting in a sentence of 15 years or more. California Penal Code section 1054.9(g). Section 1054.9, however, concerns a criminal defendant’s access to discovery materials post-conviction in certain cases and does not address or govern a lawyer’s ethical obligations with respect to closed client files. Because files relating to criminal matters may have future vitality even without a conviction, and even after judgment, sentence, and appeals, absent a contrary agreement or client consent, a lawyer should retain the files for the life of the client. The contents of the closed files in criminal matters may be retained in electronic form if every item is digitally copied and preserved, unless retention of the physical item is required by law or the item, by its nature, requires preservation in physical form, i.e., physical evidence.
Proposed COPRAC Formal Opinion Interim No. 20-0001: Lawyer as Expert Witness[26]
Issue: May a lawyer ethically testify as an expert witness in matters involving current or former clients of the lawyer or the lawyer’s law firm?
Digest: A lawyer may ethically testify as an expert witness in a matter adverse to a former client provided that the lawyer’s testimony does not injuriously affect the former client in any matter in which the attorney formerly represented the client, disclose information acquired by virtue of the representation which is protected by Business and Professions Code section 6068, subdivision (e) or rule 1.6 of the Rules of Professional Conduct, or use such information to the disadvantage of the former client. In certain circumstances, however, judicially developed principles of disqualification may prevent a lawyer whose testimony would be permissible under the Rules of Professional Conduct from serving as an expert witness.
No ethical principle bars the law firm of a lawyer who has previously testified as an expert witness from subsequently representing a client who is adverse to the party on whose behalf the lawyer previously testified. If the lawyer remains under contractual or other confidentiality obligations stemming from the lawyer’s prior expert role and respecting those obligations would significantly limit the firm’s representation of the firm’s client, then the law firm must obtain the client’s informed written consent prior to the representation. (See rule 1.7(b).) Even if there is no material limitation conflict under rule 1.7(b), the law firm is required to make written disclosure of the lawyer’s continuing legal obligation to the adverse party under rule 1.7(c)(1).
A lawyer should carefully consider, in conjunction with law firm management, whether a lawyer can ethically serve as an expert witness against a current client of the lawyer’s law firm in an unrelated matter. Even if a lawyer does not disclose or use confidential information of the law firm’s current client, the potential expert retention may implicate rules 1.4. 1.6, 1.7, and duties of loyalty, for the lawyer, the law firm, or both. Depending on the circumstances, informed written consent under rule 1.7(b), or written disclosure of the relationship under rule 1.7(c)(1), may be required.
Proposed COPRAC Formal Opinion Interim No. 21-0003: Ethics of In-House Counsel[27]
Issue: What conflicts of interest are presented by a stock option agreement between the in-house lawyer and the company?
Digest: In-house lawyers are often offered employee stock options or grants as part of their compensation package. In a typical attorney-client relationship—which is inherently imbalanced in favor of the attorney— taking stock of a client requires compliance with Rule of Professional Conduct 1.8.1: the transaction must be fair and reasonable; the lawyer’s role in the transaction must be fully and plainly disclosed to the client in writing; and the client is advised in writing to consult with independent counsel about the transaction. The client must then provide written consent to the transaction. This rule applies in the in-house context, even if the lawyer is offered the same general compensation terms as those offered to other employees and indicia of inequality do not exist.
Stock ownership may likewise trigger a material limitation conflict under rule 1.7(b) if there is a significant risk that the in-house lawyer’s representation will be materially limited by their financial interest in connection with their stock ownership. Such a conflict could arise if the lawyer is asked to advise the company concerning a transaction that affects the character or price of the stock, such as a merger or acquisition. If so, the lawyer must obtain informed written consent from an authorized constituent of the company. If the lawyer does not reasonably believe they can competently represent the company due to the conflict, or if the company refuses to consent to the conflict, the lawyer must refer the matter to nonconflicted in-house counsel or outside counsel.
Proposed COPRAC Formal Opinion Interim No. 20-0003: Flat Fees and Termination[28]
Issues: What are the ethical obligations of attorneys representing clients pursuant to a flat fee agreement where the representation is terminated before the legal services specified in the agreement have been completed, or where the scope or complexity of the matter turns out to be greater than the attorney and client contemplated?
Digest:
1. An attorney may agree to charge a flat fee for legal services but must clearly state what services are covered by the fee and should clearly state when the fee or portion thereof is earned.
2. If the flat fee is paid in advance of the services being rendered, the attorney may deposit the fee into the lawyer’s operating account if compliance with rule 1.15(b) is met.
3. If the representation is terminated and any of the services for which the flat fee has been or will be paid are incomplete, then the lawyer must determine the appropriate amount to be charged and must refund any advanced unearned funds, even if deposited into the operating account after compliance with rule 1.15(b). Where an appropriate amount to be charged cannot be agreed upon between the attorney and client, the dispute may be resolved through arbitration or by a court.
4. If a flat fee is renegotiated “midstream,” a lawyer must comply with rule 1.8.1 and such renegotiation is subject to ethical scrutiny for fairness and reasonableness.
CONCLUSION
It is important for California-licensed lawyers to stay abreast of their ethical obligations.
* Neil J Wertlieb, the author of this article, is a transactional lawyer, educator and ethicist, who provides expert witness services in disputes involving business transactions and corporate governance, and in cases involving attorney malpractice and attorney ethics. He is an Inaugural Co-Chair, Advisor and Founding Member of the California Lawyers Association Ethics Committee, a member of the California Civility Task Force, a former Chair of the Business Law Section and its Corporations and Business Litigation Committees, and a former Member of the Board of Representatives of the California Lawyers Association. Mr. Wertlieb served as a Partner at Milbank LLP for two decades and most recently as General Counsel of the firm. For additional information, please visit www.WertliebLaw.com. The views expressed herein are his own.
Additionally, Kevin E. Mohr made substantial editorial contributions to this article. Mr. Mohr is Professor of Law Emeritus at Western State College of Law, a Member of the California Lawyers Association Ethics Committee, and co-author of the California Practice Guide: Professional Responsibility & Liability.
[1] As of December 2025, no ethics advisory opinions were issued during 2025 by the California Lawyers Association’s Ethics Committee, the San Diego County Bar Association’s Legal Ethics Committee, the San Francisco Bar Association’s Legal Ethics Committee, or the Orange County Bar Association’s Professionalism and Ethics Committee. Note that this article also includes ethics advisory opinions from other jurisdictions that may be of interest to California lawyers.
[2] See California Rule 1.0(b)(2).
[3] See Comment [4] to California Rule 1.02(b)(2).
[4] Although the current California Rules that became effective in November 2018 have a substantially similar numbering system, formatting and terminology as the ABA Model Rules, the two sets of rules often diverge substantially in substance, particularly with respect to the lawyer’s duty of confidentiality. Further, no jurisdiction has adopted the Model Rules verbatim; when practicing in another jurisdiction, a lawyer must always study that jurisdiction’s Rules of Professional Conduct and other laws regulating lawyer conduct and be alert to differences from the California Rules and Model Rules.
[5] See https://newsroom.courts.ca.gov/sites/default/files/newsroom/2025-09/S281631-%20Amendments%20to%20Rule%209.7.pdf.
[6] See https://www.calbar.ca.gov/public/public-meetings-comment/public-comment/proposed-new-rule-23-state-bar-rules-regarding-civility-oath. [Last visited 12/18/25]
[7] See https://calawyers.org/california-lawyers-association/california-supreme-court-rejects-proposed-changes-to-rules-of-professional-conduct-to-address-civility/.
[8] See https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2025-Public-Comment/Proposed-Amended-Rule-of-Professional-Conduct-73. [Last visited 12/18/25]
[9] See Fam. Code § 6309(a)(1)(A)-(B).
[10] See https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2025-Public-Comment/Proposed-Amended-Rules-of-Professional-Conduct-82-and-84-Reissued. [Last visited 12/18/25]
[11] SB 37 may be found at: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202520260SB37. [Last visited 12/18/25] A document comparing the statutory sections as amended or added by SB37 to current law is available at: https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202520260SB37&showamends=false. [Last visited 12/18/25]
[12] AB931 may be found at: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202520260AB931. [Last visited 12/18/25] A document comparing the statutory sections as amended or added by AB 931 to current law is available at: https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202520260AB931&showamends=false. [Last visited 12/18/25]
[13] See https://www.calbar.ca.gov/Portals/0/documents/mfa/2025/2025-01-Determination-Of-A-Reasonable-Fee.pdf?ver=Sy3Kr3LwR6hZAAcddFPtMQ%3D%3D&utm_medium=email&_hsenc=p2ANqtz-9_3bxEN3-3c8Gtwgkm8NLcdTWTHEH9wbjLEE6p47zra03iV0uWJaaXER7Zkre_1Z1iYKb5FngauE-fLb__dVC6nC2DkA&_hsmi=363043513&utm_content=363043513&utm_source=hs_email. [Last visited 12/18/25]
[14] PREC’s opinions are available at https://lacba.org/?pg=ethics-opinions.
[15] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-514.pdf. [Last visited 12/18/25]
[16] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-515.pdf. [Last visited 12/18/25]
[17] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-516.pdf. [Last visited 12/18/25]
[18] See, e.g., “Permissive Withdrawal from the Representation of a Client?- Yes, But No “Hot Potato” Withdrawals,” CLA eNews, by Dianne Jackson McLean (“contrary to the ABA Opinion, California lawyers generally cannot terminate one client to avoid a conflict of interest with another client.”). https://calawyers.org/california-lawyers-association/permissive-withdrawal-from-the-representation-of-a-client-yes-but-no-hot-potato-withdrawals/.
[19] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-517.pdf. [Last visited 12/18/25]
[20] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-518.pdf. [Last visited 12/18/25]
[21] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-519.pdf. [Last visited 12/18/25]
[22] See https://www.calbar.ca.gov/sites/default/files/portals/0/documents/ethics/Opinions/CAL-2015-192-[12-0001].pdf. [Last visited 12/18/25]
[23] Both Formal and Informal Opinions of the Supreme Court’s Committee on Judicial Ethics are available at: https://www.judicialethicsopinions.ca.gov/.
[24] See https://www.dcbar.org/For-Lawyers/Legal-Ethics/Ethics-Opinions-210-Present/Ethics-Opinion-391. [Last visited 12/18/25]
[25] See https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2025-Public-Comment/Proposed-Formal-Opinion-Interim-No-19-0004-Client-File-Release-and-Retention-Duties. [Last visited 12/18/25]
[26] See https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2025-Public-Comment/Proposed-Formal-Opinion-Interim-No-20-0001-Lawyer-as-Expert-Witness. [Last visited 12/18/25]
[27] See https://www.calbar.ca.gov/Portals/0/documents/publicComment/2025/21-0003-Ethics-of-In-House-Counsel-Reissued.pdf. [Last visited 12/18/25]
[28] See https://www.calbar.ca.gov/Portals/0/documents/publicComment/2025/Proposed-Formal-Opinion-20-0003-Flat-Fees-and-Termination.pdf. [Last visited 12/18/25]