Form Over Substance? Fostering the Evolution of a National Standard for Attorney Conduct
by David Boyd

In July of 2001, the Board of Governors of the California State Bar assigned the task of a five-year study to evaluate the existing California Rules of Professional Conduct to the Commission for the Revision of the Rules of Professional Conduct. The Commission is required to study the rules in their entirety, taking into consideration the Final Report and Recommendations of the American Bar Association's Ethics 2000 Commission and the American Law Institute's Restatement of the Law 3d, The Law Governing Lawyers, as well as other authorities relevant to the development of professional responsibility standards. The Commission is specifically charged to develop proposed amendments to the California rules that: "Eliminate and avoid unnecessary differences between California and other states, fostering the evolution of a national standard with respect to professional responsibility issues."

California stands alone as the only jurisdiction in the United States that has declined to adopt ethical rules in the format of the American Bar Association (ABA) Model Rules of Professional Conduct or the predecessor the ABA Model Code of Professional Responsibility. At last count, at least 44 states and the District of Columbia have adopted the ABA Model Rules, and the remaining states have adopted a version of the ABA Model Code. Although there are significant differences in the professional responsibility rules from state to state, every jurisdiction, except California, has established a comprehensive set of rules organized in the format of the ABA Model Rules or Model Code. fn 1

In contrast, the California rules are supplemental, not comprehensive. Rather than a single source of reference for ethical questions, California lawyers must cope with a confusing and often contradictory matrix of statutes, case law and rules of conduct. Professional conduct rules for California lawyers may be found in the Business and Professions Code (e.g., The State Bar Act), the Code of Civil Procedure, Evidence Code, Family Code, Labor Code, and Probate Code. The California Rules of Professional Conduct generally do not restate these statutes, but supplement the statutory framework. In those areas where there is no statute or rule, notably imputation of knowledge of client confidences for conflicts of interest, California case law has filled the gap. The result is a patchwork of ethical regulations, which are understandably difficult for the average California lawyer to understand fully. Missing from the California rules is an officially sanctioned effort to explain the marked differences between the ABA Model Rules and the California Rules of Professional Conduct.

For example, many lawyers would be surprised to learn that there is no rule of professional conduct in California to protect the confidentiality of client communications. fn 2 In this state, an attorney's ethical duty to preserve client confidentiality is embodied in two statutes, which are directly contradictory in material part. Thus, Evidence Code section 956.5 provides an exception to the attorney-client privilege that would permit 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; whereas, Business and Professions Code section 6068(e) admits of no exception and mandates that the lawyers must "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Recent case law has done nothing to mitigate the ambiguity in the conflicting statutory language. (See, e.g., People v. Dang (2001) 93 Cal.App.4th 1293.) No one could reasonably argue that continuing confusion on an ethics issue of this significance serves the members of the bar or the public at large.

The client confidence issue is also a good example of how the California State Bar has become marginalized, its effectiveness and influence eroded because its ethical rules are perceived to be confusing and out-of-step with the rest of the country. As of February of 2001, the Attorneys' Liability Assurance Society reported that the ethical rules in 38 states and the District of Columbia provided that an attorney "may" reveal confidential client information in an effort to save a life; 11 states mandated that a lawyer "must" disclose confidential client information under such circumstances; and one state (New Mexico) provides that the lawyer "should" disclose such information. Only California's statutory scheme mandates that lawyers "must not" disclose a client confidence, unless compelled to testify, even if he or she believes that the client will commit a criminal act resulting in imminent death or great bodily harm.

Recognizing that important differences exist between California's ethical rules and the ABA Model Rules, the Board of Governors has directed the Rules Revision Commission to eliminate unnecessary differences with the ABA Model Rules in order to foster the evolution of a national standard. To that end, a number of commentators have suggested that California should adopt the Model Rules format, with appropriate modifications to reflect these important differences in California's rules.

This is more than simply a matter of form over substance because it is the necessary first step to foster "the evolution of a national standard." In this way, the important differences between California and other jurisdictions could be highlighted and explained. Not only will this assist the California lawyer in understanding his or her ethical responsibilities, it will require the Commission to justify the need for differences between California and other jurisdictions. Adopting the ABA Model Rules format will provide the opportunity to eliminate unnecessary differences where the rules can be harmonized and to clarify the differences where the rules cannot be harmonized. It is difficult to imagine a more effective catalyst to provoke the reasoned debate necessary to cause the legislative changes that will permit California to move toward a national standard with respect to professional responsibility issues.

More closely aligning the California rules with the ABA Model Rules is a necessary and achievable goal. California is an indomitable force in the politics and economy of the nation, and California's professional responsibility standards should have comparable influence. California lawyers have strong ties to the practice of law across the country, where the Model Rules establish the ethical standards for attorneys. Likewise, many attorneys from other jurisdictions appear in California pro hac vice and are subject to the California rules. Adoption of the Model Rules format will promote clarity and understanding of the ethical rules and markedly improve the administration of justice.

David E. Boyd, Esq., is a partner in the firm of Hansen, Boyd, Culhane & Watson, LLP. His litigation practice emphasizes liability defense of attorneys, accountants, insurance and real estate professionals. Mr. Boyd is admitted to practice in California, Colorado and Iowa, and he has appeared before state and federal courts throughout the United States. He frequently serves as a judicial arbitrator and a pro tem judge for the Sacramento County and Placer County courts. Mr. Boyd is active in local bar activities, including service on the Sacramento Bar Council, chairman of the Professional Responsibility Committee of the Sacramento Bar Association, member of the Committee on Professional Responsibility and Conduct of the State Bar of California (COPRAC) and the California State Bar Conference of Delegates. Mr. Boyd is currently serving as the Sacramento County liaison to the Commission for the Revision of the Rules of Professional Conduct for the California State Bar.

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fn 2 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. Presumably, the Supreme Count has concluded that this matter is within the exclusive province of the legislature under Bus. & Prof. Code § 6068(e)