Friday, March 12, 2010
Public Hearing on Rules of Conduct Draws No Speakers
By a MetNews Staff Writer
No speakers came forward yesterday at a public hearing on 12 proposed new or amended Rules of Professional Conduct yesterday.
The State Bar had published notice of the hearing in a newspaper and on its website, but no one appeared at the Hill Street headquarters to speak on the rules. State Bar officials said that one person had requested to speak, but that person did not appear.
The MetNews learned that the anticipated speaker was Bradford Henschel, a former Los Angeles lawyer who has been under suspension from the State Bar since 2003. The State Bar Court recommended last July that he be disbarred.
A majority of the Commission for the Revision of the Rules of Professional Conduct recommended adoption of a rule permitting lawyers to sell a geographic area or a substantive field of practice, but a minority contended that there was no compelling reason to change current rule 2-300 and took the position that adopting the proposed rule would unnecessarily add to the commercialization of the legal profession.
The commission also split on the circumstances under which a government lawyer’s disqualification should be imputed to others, with the majority recommending adoption of a requirement that other lawyers in a governmental organization that employs a disqualified attorney be disqualified unless the former client consents, or the prohibited lawyer is timely and effectively screened.
A minority of the commission objected to the proposal to the extent that screening would be permitted to rebut the presumption of shared confidences and a second minority protested that use of the word “knowingly” would require actual knowledge of a conflict before a lawyer could be disciplined and thereby immunize lawyers who fail to conduct an adequate conflicts check.
The commission was divided 5-5 as to whether a lawyer who was consulted by a client and learned confidential information during the pre-retention period could be non-consensually screened by a firm.
A minority of the commission also took issue with the proposed rule regarding a lawyer’s duty of honesty to third persons in the course of representing a client, arguing that the subtleties of such a topic do not lend themselves to disciplinary rules.
The issues raised by the receipt of inadvertent documents was similarly not amenable to a generalized rule, a minority contended, in objecting to a proposed rule codifying the Supreme Court’s decision in Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807.
A minority also suggested that a proposed rule encouraging pro bono service was inappropriate since the aspiration towards delivery such service is not intended to be the basis for discipline.
While a majority recommended adopting a rule which would allow a lawyer to decline an assignment to represent a client who he or she considers “repugnant,” a minority insisted that the a lawyer should not be allowed to refuse an appointment based on the unpopularity of a client.
The commission recommended adoption of a rule imposing the standards applicable to representations before an adjudicative tribunal rather than the duties attorneys have in court when a lawyer serves as a client advocate in a nonadjudicative proceeding, and the substantial adoption of the American Bar Association’s Model Rules on the definition of various terminology.
ABA rules for attorneys who participate in limited legal service programs and judicial legal officials were also recommended for adoption, as well as a rule based on existing California law requiring lawyers who do not have professional liability insurance to disclose that fact to clients.
The 60-day period for public comment ends at 5 p.m. today.
Copyright 2010, Metropolitan News Company