The Profession's Core Ethical Values:
Is California Reall So Different?
by David Boyd

In previous articles I have commented that the California Rules of Professional Responsibility are materially different than the ABA Model Rules followed in virtually every other jurisdiction. Certain core professional values central to the ABA Model Rules are not even addressed in the California Rules, but instead are found in statutes or case law. It is, therefore, not surprising that California’s patchwork of statutes, case law and ethical rules are confusing and sometimes contradictory. The purpose of this article is to examine some of the core values of the legal profession and point out some significant examples of differences between the ABA Model Rules and the California Rules of Professional Conduct.

Although various commentators define the core values of the legal profession in different ways, for purposes of this article I have divided them into four broad categories, as follows: (1) obligation to the system of justice; (2) duty to maintain client confidences; (3) duty of undivided loyalty; and (4) competency.

Obligation To The System Of Justice
The California Rules of Professional Conduct do not contain a direct statement of an attorney’s obligation to promote the administration of justice. The California courts, however, have emphasized that, as an officer of the court, an attorney has a paramount obligation to the orderly administration of justice, and this duty is not deemed to be inconsistent with zealous representation. (See, e.g., People v. Chong (1999) 76 Cal.App.4th 232, 243; Chula v. Superior Court (1952) 109 Cal.App.2d 24, 39.) “An attorney has an obligation not only to protect his client’s interest, but also to respect the legitimate interest to fellow members of the bar, the judiciary and the administration of justice.” (Kirsch v. Duryea (1978) 21 Cal.3d 303, 309.) Subdivision (b) of Business and Professions Code section 6068 simply provides that an attorney shall maintain the respect due to the courts and judicial officers.

In contrast, the ABA Model Rules provide specific guidance to the practitioner. In the section entitled “Preamble: A Lawyer’s Responsibilities,” the 2002 version of the Model Rules emphasizes an attorney’s responsibility to promote the rule of law and the American system of justice. For example, the preamble to the Model Rules states that a lawyer should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials. There is an admonition that lawyers should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority. There is also a statement that lawyers should devote professional time and resources to ensure equal access to our system of justice for those who, because of economic of social barriers, cannot afford or secure adequate legal counsel. Lawyers should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service. Lawyers have an obligation to zealously protect and pursue a client’s legitimate interest, within the bounds of law, while maintaining a professional, courteous and civil attitude towards all persons involved in the legal system.

In fact, the guiding principles under the ABA Model Rules and California law are the same; the differences are found in emphasis and completeness. Although Rule 3-200 of the California Rules of Professional Conduct contains an express prohibition against asserting a position in litigation without probable cause and/or for the purpose of harassing or injuring any person, the California Rules do not affirmatively state the attorney’s obligation to the administration of justice or provide guidance as to how to meet that obligation. Unlike the Model Rules, the California Rules do not contain a preamble or aspirational statement for the purpose of emphasizing an attorney’s paramount obligation to the system of justice. A comprehensive professional standard requires a strong and clear statement of an attorney’s “paramount obligation to the due and orderly administration of justice.” There is no logical reason why the California Rules should continue to be deficient in that regard.

Confidentiality
The California Rules of Professional Conduct are also without a rule to protect client confidences. Business and Professions Code section 6068, subdivision (e), contains the unconditional mandate that an attorney must “maintain inviolate the confidence, at every peril to himself or herself to preserve the secrets, of his of her client.” Section 950 et seq. of the California Evidence Code codifies the attorney-client privilege, but contains an exception in section 956.5, permitting the attorney’s compelled testimony when he or she believes the client will commit a criminal act that will cause death or great bodily harm. Since 1987, the California Supreme Court has rejected three separate proposals by the State Bar for a new Rule 3-100 to the California Rules of Professional Conduct that would provide a “death or seriously bodily injury” exception to the duty of confidentiality. The unfortunate result is that California has no rule of professional responsibility to protect this core value. In this manner, both the State Bar and the Supreme Court have conceded regulation of attorney conduct on this issue to the legislature under Business and Professions Code section 6068, subdivision (e).

Rule 1.6 of the ABA Model Rules of Professional Conduct has been adopted in some variant in virtually every other state of the Union. Although there are slight differences in the Rule from state to state, they all either require or permit an attorney to reveal confidential client information in an effort to save a life. In this manner, the ABA Model Rules are integrated and comprehensive; whereas the California Rules of Professional Conduct are silent and provide no guidance in the face of ambiguous and contradictory statutory language.

Duty Of Undivided Loyalty
At the heart of the attorney-client relationship is the duty of loyalty and counsel’s obligation to exercise independent judgment. Both the California Rules of Professional Conduct and the ABA Model Rules have fashioned rules of conduct intended to foster this core value by mandating the recognition and avoidance of conflicts of interest. Because conflicts of interest are a common occurrence in the legal profession, the emphasis of the rules is first upon identification of potential and actual conflicts of interest. Upon recognition of a conflict, counsel is required to either withdraw from further representation or to obtain the informed consent of the client after consultation. Although the California and ABA Rules clearly have the same goal, in many ways the rules are substantially different.

Both the 2001 and 2002 versions of the ABA Model Rules contain comprehensive instructions on recognition and avoidance of conflicts of interests in Rules 1.7, 1.8, 1.9, 1.10, 1.11 and 1.12. Although space here does not permit a thorough comparison of the California and ABA Model Rules, suffice to say that the ABA Model Rules are far more comprehensive and detailed in the treatment of the subject matter than are the California Rules. For example, the ABA Model Rules contain specific provisions relating to: imputation of an individual attorney’s conflict of interest to his or her law firm; acceptance of gifts from clients; aggregate settlements among jointly represented clients; attorneys moving between firms; government employees; and attorneys acting in the capacity of judge, arbitrator or mediator.

In the past, the California Rules of Professional Conduct have provided a greater degree of client protection than the ABA Model Rules because the California Rules have mandated that the client give his or her informed written consent to representation where there is a potential or actual conflict of interest. The 2002 version of the ABA Model Rules have essentially adopted the California view and now contain a provision for written consent after consultation.

Competency
Competency is a core value of the legal profession; however, that term is defined differently in the California Rules than in the ABA Model Rules, and, as a consequence, the impact of the rules is materially different. Under ABA Model Rule 1.1, a lawyer is required to provide competent representation in the sense that he or she must possess the requisite legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Under the California Rules, the concept of competence is expanded to include both diligence and the mental, emotional and physical ability reasonably necessary for the performance of legal services. Rule 3-110 of the California Rules of Professional Conduct does not impose discipline unless the member intentionally, recklessly and/or repeatedly fails to perform legal services competently.

The difference between the California Rules and ABA Model Rules becomes apparent in the context of claims for legal malpractice. Whereas the ABA Model Rules simply require that the practitioner be properly qualified by reason of legal knowledge, skill and preparation for the representation, the California Rule introduces the concept of diligence in the course of the representation. Consequently, plaintiffs’ attorneys in legal malpractice actions in California sometimes claim that the defendant attorney fell below the minimum ethical standard established by the California Rules of Professional Conduct by virtue of simple negligence (i.e., lack of diligence) in the representation.

Although Rule 1-100 of the California Rules of Professional Conduct clearly provides that the Rules do not create or augment a civil cause of action, California courts have held that the rules of professional conduct help define the duty which an attorney owes to his or her client. An unwanted consequence of the expanded definition of competence under the California Rules is to improperly introduce the concept of a single act of negligence into attorney ethical standards.

The California Rules of Professional Conduct are clearly inadequate to meet the needs of the largest and most dynamic bar association in the country. California’s standards for professional conduct have not developed as an uniform and comprehensive set of rules, but are a patchwork of regulations, statutes and case law, driven in part by the paramount role of the legislature in establishing core ethical standards. The Rules are completely silent as to the core values of protecting client confidences and an attorney’s obligation to the system of justice. With respect to the duty of loyalty, avoidance of conflicts and independence, the California Rules are less than comprehensive. For these reasons, California Rules fail in comparison to the ABA Model Rules. It is time that these deficiencies be recognized an acted upon by The Commission for the Revision of The Rules of Professional Conduct.

Correction to Ethics Corner Column
A sentence in David Boyd’s ethics column in the January-February issue, entitled “Civility and Professionalism: ‘Order In The Court!’” contained an error. The sentence should have read as follows: “Although a client may pressure his attorney to exacerbate combat with opposing counsel, avoiding confrontation may better serve the client’s legitimate legal interests.”