Umberg/Zipser’s Garner Comments on Proposed Professional Conduct Rules

The California State Bar Commission for the Revision of the Rules of Professional Conduct is developing a new set of proposed rules to replace the current rules which have been in effect since 1987.  U/Z’s Dean Zipser serves as Co-Vice Chair of the Commission.  At its June 23, 2016 meeting, the California State Bar’s Board of Governors authorized a 90-day public comment period on sixty-eight proposed new and amended rules prepared by the Commission as an initial report and recommendation for comprehensive revisions.   More information, including text of the proposed rules, is available on the State Bar website.

Umberg/Zipser partner Scott Garner, who focuses his practice on professional liability disputes and legal ethics counseling, was quoted extensively in a recent Bloomberg BNA article about the proposed rules, “Cal rules redo marries borrowed rules with old and new“, July 13, 2016. Scott just completed a term as Chair of the California State Bar’s Committee on Professional Responsibility and Conduct, and currently serves as the Advisor to that Committee.  He also serves as Co-Chair of the Orange County Bar Association Professionalism and Ethics Committee.    Excerpts from Scott’s comments are included below.

“In an interview with Bloomberg BNA, Scott B. Garner noted that the proposed rules involve big changes for California lawyers. ‘Lots of rules are changing,’ he said . . . . Some of the commission’s proposed changes are intended to make the rules consistent with California case law, Garner said.

But ‘some of the rules do adopt the Model Rules’ format and language, which in some instances will be a significant change from our current rules. It will be interesting to see how courts rely on the existing authority that cites to the old rules,’ Garner said. ‘Determining which cases and ethics opinions still apply will be challenging.'”

Scott speaks about conflicts of interest later in the article:

“Garner said he expects a ton of comments on draft Rule 1.7, which addresses conflicts of interest involving current clients. ‘It’s a beefy rule,’ he said.  Garner noted that the proposed rule uses the Model Rule language for conflicts of interest—’that is, there is a conflict requiring informed written consent where there is a ‘significant risk of material limitation.’

‘This is different from the current California standard, which relied on the risk that the lawyer had confidential information that was material to the representation,’ he said.  ‘I believe this newer formulation will give courts greater flexibility in flushing out what is and is not a conflict of interest.'”