California Lawyers Association

Ethics Spotlight: California Annual Review 2023

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March 2024

By Neil J Wertlieb

This article highlights the ethics advisory opinions that were issued during 2023 by the State Bar of California’s Committee on Professional Responsibility and Conduct (COPRAC), the American Bar Association’s Standing Committee on Ethics and Professional Responsibility (ABA), the San Francisco Bar Association’s Legal Ethics Committee (BASF), the San Diego County Bar Association’s Legal Ethics Committee (SDCBA), 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 State Bar Act, and other regulatory law pertaining to attorney professional responsibility and judicial ethics. [1]

The conduct of attorneys licensed in the State of California is regulated by the California Rules of Professional Conduct (the California Rules), the State Bar Act (California Business and Professions Code, §§ 6000 et seq.), and the opinions of California courts.[2] As reported below, attorneys also have obligations under the California Rules of Court and the Rules of the State Bar of California. 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 from the California Rules.

Rule Changes

Client Trust Account Protection Program and Revisions to California Rule 1.15 (Safekeeping Funds and Property of Clients and Other Persons) and Rule 1.4 (Communication with Clients)

On October 24, 2022, the Supreme Court of California approved amendments to California Rules 1.4 and 1.15, which went into effect on January 1, 2023. These amendments are part of the new Client Trust Account Protection Program the State Bar of California proposed to impose proactive oversight and regulation of client trust accounts, following an audit of closed discipline cases against now-disbarred attorney Thomas Girardi. 

Prior to these amendments, subparagraph (d)(1) of Rule 1.15 (Safekeeping Funds and Property of Clients and Other Persons) obligated a lawyer to “promptly notify a client or other person of the receipt of funds, securities, or other property in which the lawyer knows or reasonably should know the client or other person has an interest.”[4] This language was amended to require such notification to occur “no later than 14 days” following the receipt of such funds, securities or other property, “absent good cause.” 

Similarly, subparagraph (d)(7) of Rule 1.15 obligated a lawyer to “promptly distribute, as requested by the client or other person, any undisputed funds or property in the possession of the lawyer or law firm that the client or other person is entitled to receive.”[5] This language has been amended to remove the phase “as requested by the client or other person,” to clarify that undisputed funds should be promptly distributed regardless of whether requested by the client or other person. New Comment [4] to Rule 1.15 was added to clarify that subparagraph (d)(7) “is not intended to apply to a fee or expense the client has agreed to pay in advance, or the client file, or any other property that the client or other person has agreed in writing that the lawyer will keep or maintain.”

New paragraph (f) has been added to Rule 1.15, as follows: 

“For purposes of determining a lawyer’s compliance with paragraph (d)(7), unless the lawyer, and the client or other person agree in writing that the funds or property will continue to be held by the lawyer, there shall be a rebuttable presumption affecting the burden of proof as defined in Evidence Code sections 605 and 606 that a violation of paragraph (d)(7) has occurred if the lawyer, absent good cause, fails to distribute undisputed funds or property within 45 days of the date when the funds become undisputed as defined by paragraph (g). This presumption may be rebutted by proof by a preponderance of evidence that there was good cause for not distributing funds within 45 days of the date when the funds or property became undisputed as defined in paragraph (g).”

New paragraph (g) was added to Rule 1.15, to define the term “undisputed funds or property” as “funds or property, or a portion of any such funds or property, in the possession of a lawyer or law firm where the lawyer knows or reasonably should know that the ownership interest of the client or other person in the funds or property, or any portion thereof, has become fixed and there are no unresolved disputes as to the client’s or other person’s entitlement to receive the funds or property.” 

Subparagraph (a)(3) of California Rule 1.4 (Communication with Clients) obligates a lawyer to “keep the client reasonably informed about significant developments relating to the representation.” Comment [1] to Rule 1.4 provides, “Whether a particular development is significant will generally depend on the surrounding facts and circumstances.” Comment [1] was amended to further clarify that “a lawyer’s receipt of funds on behalf of a client requires communication with the client pursuant to rule 1.15, subparagraphs (d)(1) and (d)(4) and ordinarily is also a significant development requiring communication with the client pursuant to this rule.”

In addition, the new Client Trust Account Protection Program requires actively licensed attorneys to: report annually to the State Bar whether they are responsible for client trust accounts and provide basic account information; complete an annual self-assessment that highlights specific rules and requirements for managing a client trust account; and annually review the applicable California Rules related to safeguarding client funds and certify to the State Bar that they comply with those rules. These additions are reflected in new Rule 9.8.5 of the California Rules of Court, as further articulated in Rule 2.5 of the Rules of the State Bar of California.

These new rules may very well prove a daunting task for both lawyers in their attempts to comply with their mandates and the State Bar in proactively monitoring the compliance. In recognition of this, the State Bar and most local bar associations, as well as the California Lawyers Association, have offered webinars to help train lawyers in their new trust accounting reporting obligations. Despite such training, however, it has been reported that approximately 2,000 California-licensed attorneys were initially placed on involuntary inactive status for failing to comply with the new Client Trust Account Protection Program.

Reporting Professional Misconduct: New California Rule of Professional Conduct 8.3 

The California Supreme Court has approved a new rule of professional conduct, California Rule 8.3, that requires California attorneys to report any lawyer who engages in specified professional misconduct “that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.” This new rule went into effect on August 1, 2023.

New Rule 8.3 provides as follows:

  1. A lawyer shall, without undue delay, inform the State Bar, or a tribunal with jurisdiction to investigate or act upon such misconduct, when the lawyer knows of credible evidence that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation or misappropriation of funds or property that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
  1. Except as required by paragraph (a), a lawyer may, but is not required to, report to the State Bar a violation of these Rules or the State Bar Act.
  1. For purposes of this rule, “criminal act” as used in paragraph (a) excludes conduct that would be a criminal act in another state, United States territory, or foreign jurisdiction, but would not be a criminal act in California. 
  1. This rule does not require or authorize disclosure of information gained by a lawyer while participating in a substance use or mental health program, or require disclosure of information protected by Business and Professions Code section 6068, subdivision (e) and rules 1.6 and 1.8.2; mediation confidentiality; the lawyer-client privilege; other applicable privileges; or by other rules or laws, including information that is confidential under Business and Professions Code section 6234. 

State Bar Act Changes

Reporting Treason, Sedition, or Insurrection: New Business & Professions Code § 6090.8 

Effective January 1, 2024, new Section 6090.8 of the California Business and Professions Code obligates all California-licensed attorneys to inform the State Bar of California when they know that another lawyer has engaged in, or conspired to engage in, “seditious conspiracy,” “treason” or “rebellion or insurrection.” Section 6090.8 defines these specific terms by reference to the prohibitions contained in Title 18 of the United States Code, which is the main criminal code of the federal government. 

New Section 6090.8 provides as follows:

  1. (1) A licensee of the State Bar who knows that another licensee has conspired to engage in or has engaged in any of the following shall inform the State Bar:

(A) Seditious conspiracy as prohibited under Section 2384 of Title 18 of the United States Code.

(B) Treason as prohibited under Section 37 of the Penal Code or Section 2381 of Title 18 of the United States Code.

(C) Rebellion or insurrection as prohibited under Section 2383 of Title 18 of the United States Code.

(2) For the purpose of this subdivision, “knows” means actual knowledge of the fact in question. A licensee’s knowledge may be inferred from circumstances.

  1. This section does not require disclosure of information otherwise protected by the attorney-client privilege or information gained by a licensee while participating in the Attorney Diversion and Assistance Program.
  1. A licensee of the State Bar who makes a complaint to the State Bar pursuant to subdivision (a) with the intent to intimidate, harass, or otherwise deter a fellow licensee from engaging in the lawful practice of law shall be deemed to have committed professional misconduct.
  1. The board may amend the Rules of Professional Conduct, and shall propose those amendments to the Supreme Court for approval, to implement this section.

Proposed Rule Changes

Civility (Proposed)

In July 2023, the State Bar of California’s Board of Trustees approved certain proposed measures intended to improve the civility of California-licensed attorneys. The proposed changes, based on recommendations of the California Civility Task Force, have been submitted to the California Supreme Court for review and approval, and (as of December 2023) are still pending approval. The changes, if and when approved, currently include the following: 

Proposed Changes to the California Rules of Professional Conduct to Address Civility: Amendments to Rules 1.2 and 8.4 and New Rule 8.4.2

The State Bar has 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.

The State Bar has proposed revising the Comments to California Rule 8.4 (Misconduct), by adding the immediately following sentence to existing Comment [4] and adding new Comment [6]:

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.

The State Bar has also proposed adding the following as new California Rule 8.4.2 (Prohibited Incivility):

(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.

Comment

[1] For guidance on conduct that may be significantly unprofessional that is abusive or harassing, a lawyer should consult the current California Attorney Guidelines of Civility and Professionalism and other relevant legal authorities, such as the local rules of court and bar associations’ codes of civility.

[2] A lawyer does not violate this rule merely by, for example, standing firm in the position of the client, protecting the record for subsequent review, or preserving professional integrity.

[3] A lawyer’s violation of this rule may also constitute a violation of rule 8.4(d).

[4] “Incivility” as used in this rule does not apply to speech or conduct protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution. “Incivility” as used in this rule may include speech or conduct that violates an attorney’s duties under Business and Professions Code section 6068, subdivisions (b) and (f). (See California Code of Judicial Ethics, Canon 3B, advisory commentary: Canon 3B(2) noting a judge’s responsibility to require lawyers under the judge’s direction and control to be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others.)

[5] A disciplinary investigation or proceeding for conduct coming within this rule may also be initiated and maintained if such conduct warrants discipline under California Business and Professions Code sections 6106 and 6068, the California Supreme Court’s inherent authority to impose discipline, or other disciplinary standard.

Proposed Changes to California Rule of Court 9.7 (Attorney Oath and Reaffirmation of Oath) and Adoption of New State Bar Rule 2.3

The State Bar has proposed amendments to California Rule of Court 9.7 to require lawyers to annually affirm or reaffirm their civility oath – i.e.: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.”

Proposed new State Bar Rule 2.3 would provide (in Section (C)(1)): “A licensee determined by the State Bar to be in noncompliance with State Bar civility oath requirements will be enrolled as inactive and not eligible to practice law. The enrollment is administrative and no hearing is required.”

Proposed Amendments to Rules Governing Minimum Continuing Legal Education to add One Hour on Civility in the Legal Profession

The State Bar proposed amendments to State Bar Rule 2.72 to mandate, among other things, that: “Beginning with the compliance period ending January 31, 2025, all licensees shall … complete … at least one hour of education addressing civility in the legal profession.”

Return to Active Status following Suspension or Inactive Status (Proposed)

The State Bar has released for public comment proposed new California Rule of Court 9.8.1.

Adoption of Rule of Court 9.8.1 would authorize the State Bar to adopt rules and regulations to require that, prior to returning to active status, a licensee must comply with any rule where the State Bar is authorized to suspend or enroll as inactive a licensee for failure to comply with the rule. For example, currently when a licensee’s period of suspension is over, they are returned to active status by operation of law (i.e., by termination of the order of suspension). As a result, the State Bar moves them to active status and expends significant administrative resources to follow up with the licensee to get them to comply with any outstanding reporting requirements and, if they fail to comply, to enroll the licensee as inactive for failure to comply.

The adoption of proposed Rule of Court 9.8.1 by the Supreme Court would allow the State Bar, upon the termination of a licensee’s suspension, to move the licensee from “not eligible” to “inactive.” The licensee can then comply with all requirements for return to active status and, like other inactive attorneys, submit a form requesting to be changed to active status.

Conflict of Interest Evaluations for Potential State Bar Court Judges and Board of Trustees Appointees (Proposed)

The State Bar has released for public comment proposed amendments to California Rules of Court 9.11 and 9.90.

Pursuant to California Rules of Court, rules 9.11 and 9.90, the State Bar supports two Supreme Court-appointed committees that evaluate candidates for appointment to State Bar Court judgeships and the Board of Trustees, respectively. The Supreme Court has directed the State Bar to develop and propose to the Court amendments to these rules to require the committees to collect information on and consider candidates’ actual and potential conflicts of interest. 

The proposed amendments effectuate the Supreme Court’s directive to propose amendments to Rules of Court 9.11 and 9.90 to require the committees that evaluate applicants to become State Bar Court judges or members of the Board of Trustees to “identify and assess each candidate’s actual and potential conflicts of interest” in order to “better achieve the goal of selecting independent and unbiased candidates.” 

Advisory Opinions

Advisory Opinions of the State Bar Committee on Professional Responsibility and Conduct (COPRAC)

Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law: COPRAC Practical Guidance (2023)

Although not a formal advisory opinion, COPRAC at the request of the State Bar of California issued Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law (which can be found on the State Bar website),[7] with the following Executive Summary:

Generative AI is a tool that has wide-ranging application for the practice of law and administrative functions of the legal practice for all licensees, regardless of firm size, and all practice areas. Like any technology, generative AI must be used in a manner that conforms to a lawyer’s professional responsibility obligations, including those set forth in the Rules of Professional Conduct and the State Bar Act. A lawyer should understand the risks and benefits of the technology used in connection with providing legal services. How these obligations apply will depend on a host of factors, including the client, the matter, the practice area, the firm size, and the tools themselves, ranging from free and readily available to custom-built, proprietary formats. 

Generative AI use presents unique challenges; it uses large volumes of data, there are many competing AI models and products, and, even for those who create generative AI products, there is a lack of clarity as to how it works. In addition, generative AI poses the risk of encouraging greater reliance and trust on its outputs because of its purpose to generate responses and its ability to do so in a manner that projects confidence and effectively emulates human responses. A lawyer should consider these and other risks before using generative AI in providing legal services. 

The following Practical Guidance is based on current professional responsibility obligations for lawyers and demonstrates how to behave consistently with such obligations. While this guidance is intended to address issues and concerns with the use of generative AI and products that use generative AI as a component of a larger product, it may apply to other technologies, including more established applications of AI. This Practical Guidance should be read as guiding principles rather than as “best practices.” 

Ethical Obligations When Working Remotely: COPRAC Formal Opinion No. 2023-208 (2023)[8]

Issue: What are a California lawyer’s ethical duties when working remotely?

Digest: Remote practice does not alter a lawyer’s ethical duties under the California Rules of Professional Conduct and the State Bar Act. Managerial lawyers must implement reasonable measures, policies, and practices to ensure continued compliance with these rules in a remote working environment, with a particular focus on the duties of confidentiality, technology competence, communication, and supervision.

Advisory Opinions of the American Bar Association Committee on Ethics and Professional Responsibility

Choice of Law: ABA Opinion 504 (March 1, 2023)[9]

When a lawyer practices the law of more than one jurisdiction, choice-of-law questions arise concerning which jurisdiction’s ethics rules the lawyer must follow. Model Rule 8.5 provides that when a lawyer’s conduct is in connection with a matter pending before a tribunal, the lawyer must comply with the ethics rules of the jurisdiction in which the tribunal sits, unless otherwise provided. For all other conduct, including conduct in anticipation of litigation not yet filed, a lawyer must comply with the ethics rules of the jurisdiction in which the lawyer’s conduct occurs. However, if the predominant effect of the lawyer’s conduct is in a different jurisdiction, then the lawyer must comply with the ethics rules of that jurisdiction.

Fees Paid in Advance for Contemplated Services: ABA Opinion 505 (May 3, 2023)[10]

Under the Model Rules of Professional Conduct, a fee paid to a lawyer in advance for services to be rendered in the future must be placed in a client trust account and may be withdrawn only as earned by the performance of the contemplated services.[11] This protects client funds and promotes client access to legal services in the event the representation terminates before all contemplated services have been rendered. All fees must be reasonable, and unearned fees must be returned to the client. Therefore, it is not accurate to label a fee “nonrefundable” before it actually has been earned, and labels do not dictate whether a fee has been earned.

Responsibilities Regarding Nonlawyer Assistants: ABA Opinion 506 (June 7, 2023)[12]

A lawyer may train and supervise a nonlawyer to assist with prospective client intake tasks including obtaining initial information about the matter, performing an initial conflict check, determining whether the assistance sought is in an area of law germane to the lawyer’s practice, assisting with answering general questions about the fee agreement or process of representation, and obtaining the prospective client’s signature on the fee agreement provided that the prospective client always is offered an opportunity to communicate with the lawyer including to discuss the fee agreement and scope of representation. Because Model Rule 5.5 prohibits lawyers from assisting in the unauthorized practice of law, whether a nonlawyer may answer a prospective client’s specific question depends on the question presented. If the prospective client asks about what legal services the client should obtain from the lawyer, wants to negotiate the fees or expenses, or asks for interpretation of the engagement agreement, the lawyer is required to respond to ensure that the non-lawyer does not engage in the unauthorized practice of law and that accurate information is provided to the prospective client so that the prospective client can make an informed decision about whether to enter into the representation.

Office Sharing Arrangements with Other Lawyers: ABA Opinion 507 (July 12, 2023)[13]

It is generally permissible for lawyers to participate in office sharing arrangements with other lawyers under the ABA Model Rules of Professional Conduct. At the same time, office sharing lawyers should appreciate that such arrangements will require them to take appropriate measures to comply with their ethical duties concerning the confidentiality of information, conflicts of interest, supervision of non-lawyers, and communications about their services. The nature and extent of any additional safeguards will necessarily depend on the circumstances of each arrangement. This opinion is in accord with COPRAC Formal Opinion 1997-150,[14] which provides more guidance on the kinds of safeguards that might be required.

The Ethics of Witness Preparation: ABA Opinion 508 (August 5, 2023)[15]

A lawyer’s role in preparing a witness to testify and providing testimonial guidance is not only an accepted professional function; it is considered an essential tactical component of a lawyer’s advocacy in a matter in which a client or witness will provide testimony. Under the Model Rules of Professional Conduct governing the client-lawyer relationship and a lawyer’s duties as an advisor, the failure adequately to prepare a witness would in many situations be classified as an ethical violation. But, in some witness-preparation situations, a lawyer clearly steps over the line of what is ethically permissible. Counseling a witness to give false testimony or assisting a witness in offering false testimony, for example, is a violation of at least Model Rule 3.4(b). The task of delineating what is necessary and proper and what is ethically prohibited during witness preparation has become more urgent with the advent of commonly used remote technologies, some of which can be used to surreptitiously “coach” witnesses in new and ethically problematic ways.

Advisory Opinions of the Bar Association of San Francisco (BASF)

Engagement Letter Terms That Violate California’s Ethical Standards: BASF Opinion 2023-1 (April 2023)[16]

Issue: Should certain contract provisions sometimes used by California lawyers in attorney-client fee agreements (also known as engagement agreements or engagement letters) be revised or omitted because they violate California’s ethical standards?

Digest: The State Bar of California provides on its website sample hourly fee agreements and a sample contingency fee agreement, along with instructions and comments. The sample fee agreements are advisory only and include provisions that are generally permissible under California’s Rules of Professional Conduct and the State Bar Act (Business & Professions Code § 6000 et seq.). The sample fee agreements, however, do not discuss other provisions sometimes used by California attorneys, some of which violate California’s ethics rules and laws. These provisions include, but are in no way limited to, those that (1) shift authority to the lawyer to decide the client’s ultimate objectives; (2) require the client’s advance consent to settlement regardless of the circumstances, condition settlement on the lawyer or law firm’s approval, or give the lawyer unlimited authority to settle on the client’s behalf; (3) designate a fee for providing legal services as nonrefundable; (4) charge fees in excess of statutory limits; (5) permit the lawyer’s unilateral withdrawal from the representation without compliance with California ethics rules and laws; or (6) allow for unqualified destruction of the client’s file, or conditional return of the file, upon termination of the representation.

Advisory Opinions of the Legal Ethics Committee of the San Diego County Bar Association (SDCBA)

Lawyer’s Obligations When Expert Witness Testified Falsely: SDCBA Opinion 2023-1 (July 21, 2023)[17]

Issue: What are a lawyer’s obligations when the lawyer learns that the lawyer’s expert witness has testified falsely at a deposition? 

Digest: When a lawyer knows a witness testified falsely at a deposition and the witness will not correct the false testimony, the lawyer must take reasonable remedial measures including possible disclosure of the false testimony to the tribunal. A lawyer must also preserve client confidentiality and may not reveal confidential information obtained during the professional relationship or related to the representation, absent the client’s informed consent. When the duty of candor and the duty of confidentiality conflict, the lawyer may have to withdraw from the representation. 

Ethical Issues Arising from Moonlighting: SDCBA Opinion 2023-2 (2023)[18]

Issue: What ethical issues arise when a lawyer employed as an associate in a law firm accepts an engagement to perform legal work as a contract lawyer with another law firm or lawyer, or an engagement representing a client independent of the law firm? 

Digest: Lawyers working full-time as associates must handle all matters with competence. Lawyers have a duty of confidentiality to each client. Several issues arise in connection with a lawyer’s obligation to identify and address conflicts of interest. Depending upon the arrangements between moonlighting lawyers and the firms for which they work, conflicts may be imputed between firms. Thus a moonlighting attorney must address any conflicts that arise from the moonlighting work. Lawyers must obtain client consent to disclose confidential information to their law firm or law firms to allow the completion of a conflict check on all matters on which they are working, even if the matter is for a client who engaged another firm or the moonlighting attorney independently. Fee sharing arrangements with moonlighting lawyers and firms must comply with the requirements of the fee sharing rule. In most situations, advance fees for any moonlighting work must be deposited to a client trust account in compliance with applicable rules. Lawyers must make disclosure to clients concerning professional liability insurance if their work is not covered by their employers’ professional liability insurance policy. Lawyers may not engage in dishonesty by misleading their full-time firm employer regarding whether they are engaged in legal work outside of the firm, by using the full-time employer’s resources to engage in work outside of the firm, or by misleading their clients into a mistaken belief the client is represented by a firm that does not represent the client. 

Advisory Opinions of the Committee on Judicial Ethics Opinions (CJEO)[19] of the Supreme Court of California

Disqualification Obligations of a Trial Judge Based on Prior Judicial Involvement in Criminal Trial Court Proceedings: CJEO Opinion 2023-021 (January 20, 2023)[20]

Judges are ethically obligated to be neutral decision makers who must regularly consider whether their adjudicatory actions give rise to a basis for disqualification. For three distinct reasons, a trial judge who authorizes the issuance of a bench warrant for a failure to appear or who presides over a change of plea hearing is not required to disqualify in a subsequent proceeding in which a defendant is charged with a failure to appear violation (Penal Code § 1320) or challenges whether a felony conviction arising from the change of plea hearing qualifies as a prior strike (Penal Code § 1025). First, under Code of Civil Procedure, section 170.2, the fact that a judge has expressed a view on a legal or factual issue in a proceeding does not constitute grounds for disqualification unless the judge falls within certain exceptions that are not relevant here. Second, the grounds for disqualification contained in Code of Civil Procedure, section 170.1, would not support a decision to disqualify based solely on the fact that the judge issued a bench warrant or accepted a plea agreement. Third, other practical considerations weigh against disqualification under these facts. 

Guidelines for Presiding Judges When Transmitting Courtwide Communications to Colleagues: CJEO Opinion 2023-022 (April 24, 2023)[21]

Presiding judges have a general duty to keep the judicial officers of their courts informed of administrative and policy developments related to the law, the legal system, and the administration of justice. Consistent with the code, a presiding judge may send a courtwide communication at the request of an outside entity, such as another government agency, a private interest group, or a bar association, but is advised to keep in mind the following considerations: (1) the substance of the communication must not undermine public confidence in the integrity or impartiality of the judiciary; (2) the communication must not suggest that the outside entity has a special influence over the presiding judge or the court; (3) the communication must not lend judicial prestige to advance anyone’s pecuniary or personal interests; (4) the communication must not constitute prohibited political activity; and (5) the communication must not include information relating to a specific pending or impending matter, which may expose a recipient to a prohibited ex parte communication or interfere with a fair trial or hearing. 

Guidelines for Hosting Educational Presentations by Outside Speakers and Groups: CJEO Formal Opinion 2023-023 (July 19, 2023)[22]

Question: The Committee on Judicial Ethics Opinions (CJEO) has been asked for guidance regarding factors that courts should consider when the court invites, or court resources are being used to host, outside speakers and groups to provide educational presentations to judges and court staff.

Summary of Conclusions: The Code of Judicial Ethics generally permits and encourages judges to participate in educational activities, and judges are required to maintain professional competence in the law.

Courts may provide educational opportunities for judges and court staff, including presentations by outside speakers and groups, on topics relevant to the work of the courts or the judicial branch. To ensure that presentations by outside speakers and groups comply with the Code of Judicial Ethics, the committee advises that: (1) the presentation does not undermine judicial impartiality; (2) the speakers represent a balance of interests and viewpoints; (3) the presentation does not lend judicial prestige to advance the interests of the outside speaker or group; (4) the presentation does not constitute improper political activity; and (5) the outside speakers or groups are not involved, or likely to be involved, in proceedings before the court.

Accepting Invitations to Law Firm Celebrations: CJEO Formal Opinion 2023-024 (August 29, 2023)[23]

Question: The Committee on Judicial Ethics Opinions has been asked whether a judicial officer may accept an invitation from a for-profit law firm to attend its 50th anniversary celebration, which will take place at the law firm’s offices and include complimentary food and beverages.

Summary of Conclusions: The committee advises that a judicial officer may not accept an invitation to a law firm’s 50th anniversary celebration under these circumstances as it could likely violate several canons in the Code of Judicial Ethics, namely: (1) the prohibitions against suggesting bias or that anyone has a special position of influence over the judicial officer (canons 2, 2A, and 2B(1)); (2) the prohibition against lending judicial prestige to advance a person’s pecuniary or personal interests (canon 2B(2)); and (3) the prohibition against accepting gifts absent certain exceptions (canon 4D(6)). There are exceptions to this general advice. For example, it may be permissible for a judicial officer to attend the celebration of a law firm with which the judicial officer has a preexisting relationship warranting disqualification, provided the judicial officer’s attendance is otherwise consistent with the canons.

PROPOSED ADVISORY OPINIONS

Proposed Advisory Opinions of the State Bar Committee on Professional Responsibility and Conduct (COPRAC)

During 2023, COPRAC issued for public comment the following proposed advisory opinions, none of which have yet been approved by the State Bar of California:

Illegal Contract Provisions: Proposed COPRAC Formal Opinion Interim No. 19-0003

Issues: What are a lawyer’s ethical duties when advising a client regarding the use of a contract provision in a transaction with a third party that is illegal under the law of the jurisdiction applicable to the transaction?

Digest: A California lawyer has a duty not to counsel or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal. That conduct includes promulgating or enforcing a contract provision in a transaction with a third party that is illegal under the law of the jurisdiction applicable to the transaction. If the lawyer knows that the provision is illegal as applied to the transaction, the lawyer should advise the client accordingly, may not recommend the use of the provision, and must counsel the client not to use it. If the client insists on the use of the illegal provision against the lawyer’s advice, the lawyer may not participate in promulgating or enforcing the illegal provision against a third party. The lawyer is permitted to withdraw from the representation if the client insists on using the illegal provision and, depending on the client’s continued conduct, may be required to do so. If the lawyer concludes that the client’s conduct is a violation of law reasonably imputable to the organization and likely to result in substantial injury to the organization, the lawyer for an organization must report the actions of the client constituent to a higher authority within the organization, unless the lawyer reasonably concludes that it is not in the best lawful interest of the organization to do so.

Lawyer as Expert Witness: Proposed COPRAC Formal Opinion Interim No. 20-0001

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 that 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 common law or express contractual 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 may ethically serve as an expert witness against a current client of the lawyer’s law firm in an unrelated matter, provided that the lawyer does not disclose or use confidential information of the law firm’s current client. 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.

Succession Planning: Proposed COPRAC Formal Opinion Interim No. 20-0002

Issue: What are a lawyer’s ethical obligations to engage in succession planning?

Digest: Under certain circumstances, a lawyer may have a duty to engage in succession planning to protect client interests in the event the lawyer is unable to continue practicing law. While no specific Rule of Professional Conduct requires that a California lawyer develop or adopt a succession plan, existing rules, including the duties of competence and diligence, obligate lawyers to take reasonable steps to protect the client’s interests during the course of the representation. This would include taking affirmative steps to plan for an interruption or cessation of practice, voluntary or otherwise. The risk of prejudice to clients exists when their lawyer is unable to continue practicing law, either temporarily or permanently. This risk applies to all lawyers, including solo practitioners and lawyers from small firms, as well as lawyers practicing at larger firms.

Neil J Wertlieb is an Inaugural Co-Chair and Founding Member of California Lawyers Association’s Ethics Committee, a member of the California Civility Task Force, a member of the California Lawyers Association Board of Representatives, and a former Chair of the Business Law Section and its Corporations and Business Litigation Committees. He is the General Counsel of Milbank LLP. The views expressed herein are his own.

[1] No ethics advisory opinions were issued during 2023 by the California Lawyers Association’s Ethics Committee (CLAEC), the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee (PREC), or the Orange County Bar Association’s Professionalism and Ethics Committee (OCBA).

[2] See California Rule 1.0(b)(2).

[3] See Comment [4] to California Rule 1.02(b)(2).

[4] Emphasis added.

[5] Emphasis added.

[6] See, e.g., “More than 1,700 California lawyers suspended for failure to comply with new trust account rules,” ABA Journal (July 31, 2023).

[7] See https://www.calbar.ca.gov/Portals/0/documents/ethics/Generative-AI-Practical-Guidance.pdf.

[8] See https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/Formal-Opinion-No-2023-208-WFH.pdf.

[9] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-504.pdf.

[10] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-505.pdf.

[11] On this point, the California Rules differ. See Cal. R. Prof’s Conduct 1.15(b) (a flat fee paid in advance may be placed in a lawyer’s operating account if certain written client disclosures are made and, if the fee is over $1,000, the written disclosures and agreement to deposit are signed by the client).

[12] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-506.pdf.

[13] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-507.pdf.

[14] See https://www.calbar.ca.gov/Portals/0/documents/ethics/Opinions/1997-150.htm.

[15] See https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/ethics-opinions/aba-formal-opinion-508.pdf.

[16] See https://www.sfbar.org/wp-content/uploads/2023/04/Legal-Ethics-Opinion-2023.pdf.

[17] See https://s3.amazonaws.com/membercentralcdn/sitedocuments/sdcba/sdcba/0490/2359490.pdf?AWSAccessKeyId=AKIAIHKD6NT2OL2HNPMQ&Expires=1708290775&Signature=pnyAThOYfas6xFAq%2FGHNnpRGsDs%3D&response-content-disposition=inline%3B%20filename%3D%221%2E16%2E23%20REV%2E%20RULE%203%2E3%20WITNESS%20PERJURY%20OPINION%202%202%202%2Epdf%22%3B%20filename%2A%3DUTF%2D8%27%271%252E16%252E23%2520REV%252E%2520RULE%25203%252E3%2520WITNESS%2520PERJURY%2520OPINION%25202%25202%25202%252Epdf&response-content-type=application%2Fpdf.

[18] See https://s3.amazonaws.com/membercentralcdn/sitedocuments/sdcba/sdcba/0216/2392216.pdf?AWSAccessKeyId=AKIAIHKD6NT2OL2HNPMQ&Expires=1708290816&Signature=2Mqm5o3Si879Fhy7gG%2FrzcHdCA0%3D&response-content-disposition=inline%3B%20filename%3D%22Moonlighting%2Epdf%22%3B%20filename%2A%3DUTF%2D8%27%27Moonlighting%252Epdf&response-content-type=application%2Fpdf.

[19] The CJEO is an independent body established by the California Supreme Court to provide judicial ethics advisory opinions for the benefit of the judiciary, candidates for judicial office, and members of the public.

[20] See https://www.judicialethicsopinions.ca.gov/wp-content/uploads/CJEO-Formal-Opinion-2023-021.pdf.

[21] See https://www.judicialethicsopinions.ca.gov/wp-content/uploads/CJEO-Formal-Opinion-2023-022.pdf.

[22] See https://www.judicialethicsopinions.ca.gov/wp-content/uploads/CJEO-Formal-Opinion-2023-023.pdf.

[23] See https://www.judicialethicsopinions.ca.gov/wp-content/uploads/CJEO-Formal-Opinion-2023-024.pdf.


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