Rules of Professional Conduct 2023 PDF

Cal if orni a Rul esofProf essi onalConduc t 2023  TABLE OF CONTENTS RULES OF PROFESSIONAL CONDUCT Rule 1.8.9 Purchasing Property at...

Cal if orni a Rul esofProf essi onalConduc t 2023  TABLE OF CONTENTS RULES OF PROFESSIONAL CONDUCT Rule 1.8.9 Purchasing Property at a CROSS-REFERENCE TABLES Foreclosure or a Sale Subject to Judicial Review 18 Current Rules to the “1992” Rules iii Rule 1.8.10 Sexual Relations with Current Client 19 “1992” Rules to the Current Rules vii Rule 1.8.11 Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9 19 RULES OF PROFESSIONAL CONDUCT Rule 1.9 Duties to Former Clients 19 Rule 1.0 Purpose and Function of the Rules of Professional Conduct 1 Rule 1.10 Imputation of Conflicts of Interest: General Rule 20 Rule 1.0.1 Terminology 2 Rule 1.11 Special Conflicts of Interest for CHAPTER 1. LAWYER-CLIENT RELATIONSHIP Former and Current Government Rule 1.1 Competence 3 Officials and Employees 21 Rule 1.2 Scope of Representation and Rule 1.12 Former Judge, Arbitrator, Allocation of Authority 4 Mediator, or Other Third-Party Neutral 23 Rule 1.2.1 Advising or Assisting the Violation of Law 5 Rule 1.13 Organization as Client 24 Rule 1.3 Diligence 5 Rule 1.14 [Reserved] 26 Rule 1.4 Communication with Clients 6 Rule 1.15 Safekeeping Funds and Property of Clients and Other Persons* 26 Rule 1.4.1 Communication of Settlement Offers 6 Rule 1.16 Declining or Terminating Rule 1.4.2 Disclosure of Professional Liability Representation 28 Insurance 7 Rule 1.17 Sale of a Law Practice 30 Rule 1.5 Fees for Legal Services 7 Rule 1.18 Duties to Prospective Client 31 Rule 1.5.1 Fee Divisions Among Lawyers 8 CHAPTER 2. COUNSELOR Rule 1.6 Confidential Information of a Client 9 Rule 2.1 Advisor 32 Rule 1.7 Conflict of Interest: Current Clients 13 Rule 2.2 [Reserved] 33 Rule 1.8.1 Business Transactions with a Client and Pecuniary Interests Adverse Rule 2.3 [Reserved] 33 to a Client 15 Rule 2.4 Lawyer as Third-Party Neutral 33 Rule 1.8.2 Use of Current Client’s Information 16 Rule 2.4.1 Lawyer as Temporary Judge, Rule 1.8.3 Gifts from Client 16 Referee, or Court-Appointed Arbitrator 33 Rule 1.8.4 [Reserved] 17 CHAPTER 3. ADVOCATE Rule 1.8.5 Payment of Personal or Business Expenses Incurred by or for a Client 17 Rule 3.1 Meritorious Claims and Contentions 33 Rule 1.8.6 Compensation from One Other Rule 3.2 Delay of Litigation 34 than Client 17 Rule 3.3 Candor Toward the Tribunal* 34 Rule 1.8.7 Aggregate Settlements 18 Rule 3.4 Fairness to Opposing Party and Rule 1.8.8 Limiting Liability to Client 18 Counsel 35 2023 i  TABLE OF CONTENTS Rule 3.5 Contact with Judges, Officials, Rule 6.2 [Reserved] 50 Employees, and Jurors 36 Rule 6.3 Membership in Legal Services Rule 3.6 Trial Publicity 37 Organization 50 Rule 3.7 Lawyer as Witness 38 Rule 6.4 [Reserved] 50 Rule 3.8 Special Responsibilities of a Rule 6.5 Limited Legal Services Programs 50 Prosecutor 39 CHAPTER 7. INFORMATION ABOUT LEGAL SERVICES Rule 3.9 Advocate in Nonadjudicative Proceedings 40 Rule 7.1 Communications Concerning a Lawyer’s Services 51 Rule 3.10 Threatening Criminal, Administrative, or Disciplinary Charges 41 Rule 7.2 Advertising 52 CHAPTER 4. TRANSACTIONS WITH PERSONS* Rule 7.3 Solicitation of Clients 53 OTHER THAN CLIENTS Rule 7.4 Communication of Fields of Practice Rule 4.1 Truthfulness in Statements to and Specialization 54 Others 41 Rule 7.5 Firm* Names and Trade Names 54 Rule 4.2 Communication with a Represented Rule 7.6 [Reserved] 54 Person* 42 CHAPTER 8. MAINTAINING THE INTEGRITY OF THE Rule 4.3 Communicating with an PROFESSION Unrepresented Person* 43 Rule 8.1 False Statement Regarding Rule 4.4 Duties Concerning Inadvertently Application for Admission to Transmitted Writings* 44 Practice Law 55 CHAPTER 5. LAW FIRMS* AND ASSOCIATIONS Rule 8.1.1 Compliance with Conditions of Rule 5.1 Responsibilities of Managerial and Discipline and Agreements in Lieu Supervisory Lawyers 44 of Discipline 55 Rule 5.2 Responsibilities of a Subordinate Rule 8.2 Judicial Officials 55 Lawyer 45 Rule 8.3 Reporting Professional Misconduct 56 Rule 5.3 Responsibilities Regarding Rule 8.4 Misconduct 57 Nonlawyer Assistants 46 Rule 8.4.1 Prohibited Discrimination, Rule 5.3.1 Employment of Disbarred, Suspended, Harassment and Retaliation 58 Resigned, or Involuntarily Inactive Lawyer 46 Rule 8.5 Disciplinary Authority; Choice of Law 60 Rule 5.4 Financial and Similar Arrangements with Nonlawyers 47 Rule 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law 49 Rule 5.6 Restrictions on a Lawyer’s Right to Practice 50 Rule 5.7 [Reserved] 50 CHAPTER 6. PUBLIC SERVICE Rule 6.1 [Reserved] 50 ii 2023  RULES OF PROFESSIONAL CONDUCT CROSS-REFERENCE CHART Current Rules of Professional Conduct “1992” Rules of Professional Conduct Effective on November 1, 2018 Effective until October 31, 2018 (Rule Number and Title) (Rule Number and Title) 1.0 Purpose and Function of the Rules of Professional 1-100 Rules of Professional Conduct, in General Conduct 1.0.1 Terminology 1-100(B) 1.1 Competence1 3-110 Failing to Act Competently 1.2 Scope of Representation and Allocation of Authority No Former California Rule Counterpart 1.2.1 Advising or Assisting the Violation of Law 3-210 Advising the Violation of Law 1.3 Diligence 3-110(B)2 1.4 Communication with Clients3 3-500 Communication 1.4.1 Communication of Settlement Offers 3-510 Communication of Settlement Offer 1.4.2 Disclosure of Professional Liability Insurance 3-410 Disclosure of Professional Liability Insurance 1.5 Fees for Legal Services 4-200 Fees for Legal Services 1.5.1 Fee Divisions Among Lawyers 2-200 Financial Arrangements Among Lawyers 1.6 Confidential Information of a Client 3-100 Confidential Information of a Client 1.7 Conflict of Interest: Current Clients 3-310(B),(C) [Avoiding the Representation of Adverse Interests] 3-320 Relationship With Other Party’s Lawyer 1.8.1 Business Transactions with a Client and Pecuniary 3-300 Avoiding Interests Adverse to a Client Interests Adverse to the Client 1.8.2 Use of Current Client’s Information No Former California Rule Counterpart4 1.8.3 Gifts from Client 4-400 Gifts From Client 1.8.5 Payment of Personal or Business Expenses Incurred by 4-210 Payment of Personal or Business Expenses Incurred by or for a Client or for a Client 1.8.6 Compensation from One Other than Client 3-310(F) 1.8.7 Aggregate Settlements 3-310(D) 1.8.8 Limiting Liability to Client 3-400 Limiting Liability to Client 1.8.9 Purchasing Property at a Foreclosure or a Sale Subject to 4-300 Purchasing Property at a Foreclosure or a Sale Subject Judicial Review to Judicial Review 1.8.10 Sexual Relations with Current Client 3-120 Sexual Relations With Client 1 Rule 1.1, Comment was added by order of the Supreme Court, effective March 22, 2021. 2 Rule 3-110(B) provides: (B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service. (Emphasis added.) 3 Rule 1.4, Comment was amended by order of the Supreme Court, effective January 1, 2023. 4 But see Cal. Bus. & Prof. Code § 6068(e)(1). 2023 iii  RULES OF PROFESSIONAL CONDUCT CROSS-REFERENCE CHART Current Rules of Professional Conduct “1992” Rules of Professional Conduct Effective on November 1, 2018 Effective until October 31, 2018 (Rule Number and Title) (Rule Number and Title) 1.8.11 Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9 No Former California Rule Counterpart 1.9 Duties To Former Clients 3-310(E) 1.10 Imputation of Conflicts of Interest: General Rule No Former California Rule Counterpart 1.11 Special Conflicts of Interest for Former and Current No Former California Rule Counterpart Government Officials and Employees 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party No Former California Rule Counterpart Neutral 1.13 Organization as Client 3-600 Organization as Client 1.14 [Reserved]5 1.15 Safekeeping Funds and Property of Clients and Other 4-100 Preserving Identity of Funds and Property of a Client Persons6 1.16 Declining or Terminating Representation7 3-700 Termination of Employment 1.17 Sale of a Law Practice 2-300 Sale or Purchase of a Law Practice of a Member, Living or Deceased 1.18 Duties to Prospective Client No Former California Rule Counterpart 2.1 Advisor No Former California Rule Counterpart 2.2 [Reserved]8 2.3 [Reserved]9 2.4 Lawyer as Third-Party Neutral No Former California Rule Counterpart 2.4.1 Lawyer as Temporary Judge, Referee, or Court- 1-710 Member as Temporary Judge, Referee, or Court- Appointed Arbitrator Appointed Arbitrator 3.1 Meritorious Claims and Contentions 3-200 Prohibited Objectives of Employment 3.2 Delay of Litigation No Former California Rule Counterpart 3.3 Candor Toward the Tribunal 5-200(A)-(D) Trial Conduct 3.4 Fairness to Opposing Party and Counsel 5-200(E) [Trial Conduct] 5-220 Suppression of Evidence (Note: Rule 5-220 was revised effective May 1, 2017.) 5-310 Prohibited Contact With Witnesses (Note: See also Rule 5-110 was revised effective November 2, 2017.) 3.5 Contact with Judges, Officials, Employees, and Jurors 5-300 Contact With Officials 5-320 Contact With Jurors 5 ABA Model Rule 1.14 (“Client With Diminished Capacity”) has not been adopted in California. 6 Rule 1.15 was amended by order of the Supreme Court, effective January 1, 2023. 7 Rule 1.16, Comment was amended by order of the Supreme Court, effective June 1, 2020. 8 ABA Model Rule 2.2 was deleted and has not been adopted in California. 9 ABA Model Rule 2.3 (“Evaluation For Use By Third Persons”) has not been adopted in California. iv 2023  RULES OF PROFESSIONAL CONDUCT CROSS-REFERENCE CHART Current Rules of Professional Conduct “1992” Rules of Professional Conduct Effective on November 1, 2018 Effective until October 31, 2018 (Rule Number and Title) (Rule Number and Title) 3.6 Trial Publicity 5-120 Trial Publicity 3.7 Lawyer as Witness 5-210 Member as Witness 3.8 Special Responsibilities of a Prosecutor10 5-110 Special Responsibilities of a Prosecutor (operative on May 1, 2017.) 5-110 Performing the Duty of Member in Government Service (operative until April 30, 2017.) 3.9 Advocate in Non-adjudicative Proceedings No Former California Rule Counterpart 3.10 Threatening Criminal, Administrative, or Disciplinary 5-100 Threatening Criminal, Administrative, or Disciplinary Charges Charges 4.1 Truthfulness in Statements to Others No Former California Rule Counterpart 4.2 Communication with a Represented Person 2-100 Communication With a Represented Party 4.3 Communicating with an Unrepresented Person No Former California Rule Counterpart 4.4 Duties Concerning Inadvertently Transmitted Writings No Former California Rule Counterpart 5.1 Responsibilities of Managerial and Supervisory Lawyers No Former California Rule Counterpart11 5.2 Responsibilities of a Subordinate Lawyer No Former California Rule Counterpart 5.3 Responsibilities Regarding Nonlawyer Assistants No Former California Rule Counterpart12 5.3.1 Employment of Disbarred, Suspended, Resigned, or 1-311 Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Lawyer Involuntarily Inactive Members 5.4 Financial and Similar Arrangements with Nonlawyers13 1-310 Forming a Partnership With a Non-Lawyer 1-320 Financial Arrangements With Non-Lawyer 1-600 Legal Service Programs 5.5 Unauthorized Practice of Law; Multijurisdictional Practice 1-300 Unauthorized Practice of Law of Law 5.6 Restrictions on a Lawyer’s Right to Practice 1-500 Agreements Restricting a Member's Practice 6.3 Membership in Legal Services Organizations No Former California Rule Counterpart 6.5 Limited Legal Services Programs 1-650 Limited Legal Service Programs 7.1 Communications Concerning a Lawyer’s Services 1-400 Advertising and Solicitation 7.2 Advertising 1-320(B)-(C) & (A)(4) [Financial Arrangements With Non- Lawyer] 1-400 Advertising and Solicitation 2-200 Financial Arrangements Among Lawyers 7.3 Solicitation of Clients 1-400 Advertising and Solicitation 10 Rule 3.8, Comment was amended by order of the Supreme Court, effective June 1, 2020. 11 But see rule 3-110, Discussion ¶. 1. 12 But see rule 3-110, Discussion ¶. 1. 13 Rule 5.4 was amended by order of the Supreme Court, effective March 22, 2021. 2023 v  RULES OF PROFESSIONAL CONDUCT CROSS-REFERENCE CHART Current Rules of Professional Conduct “1992” Rules of Professional Conduct Effective on November 1, 2018 Effective until October 31, 2018 (Rule Number and Title) (Rule Number and Title) 7.4 Communication of Fields of Practice and Specialization 1-400 Advertising and Solicitation 7.5 Firm Names and Trade Names 1-400 Advertising and Solicitation 7.6 [Reserved]14 8.1 False Statement Regarding Application for Admission to 1-200 False Statement Regarding Admission to the State Bar Practice Law 8.1.1 Compliance with Conditions of Discipline and 1-110 Disciplinary Authority of the State Bar Agreements in Lieu of Discipline 8.2 Judicial Officials 1-700 Member as Candidate for Judicial Office 8.3 Reporting Professional Misconduct15 8.4 Misconduct 1-120 Assisting, Soliciting, or Inducing Violations 8.4.1 Prohibited Discrimination, Harassment and Retaliation 2-400 Prohibited Discriminatory Conduct in a Law Practice 8.5 Disciplinary Authority; Choice of Law 1-100(D) Rules of Professional Conduct, in General 14 ABA Model Rule 7.6 (“Political Contributions To Obtain Legal Engagements Or Appointments By Judges”) has not been adopted in California. 15 Rule 8.3 was adopted by order of the Supreme Court, effective August 1, 2023. vi 2023  RULES OF PROFESSIONAL CONDUCT CROSS-REFERENCE CHART “1992” Rules of Professional Conduct Current Rules of Professional Conduct Effective until October 31, 2018 Effective on November 1, 2018 (Rule Number and Title) (Rule Number and Title) 1-100(A) [Rules of Professional Conduct, in General] 1.0 Purpose and Function of the Rules of Professional Conduct 1-100(B) 1.0.1 Terminology 1-100(D) 8.5 Disciplinary Authority; Choice of Law 1-110 Disciplinary Authority of the State Bar 8.1.1 Compliance with Conditions of Discipline and Agreements in Lieu of Discipline 1-120 Assisting, Soliciting, or Inducing Violations 8.4 Misconduct 1-200 False Statement Regarding Admission to the State Bar 8.1 False Statement Regarding Application for Admission to Practice Law 1-300 Unauthorized Practice of Law 5.5 Unauthorized Practice of Law; Multijurisdictional Practice of Law 1-310 Forming a Partnership With a Non-Lawyer 5.4 Financial and Similar Arrangements with Nonlawyers16 1-311 Employment of Disbarred, Suspended, Resigned, or 5.3.1 Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Members Involuntarily Inactive Lawyer 1-320(A) 5.4 Financial and Similar Arrangements with Nonlawyers17 1-320(A)(4) & (B)-(C) [Financial Arrangements With Non- 7.2(b) Advertising Lawyer] 1-400 Advertising and Solicitation 7.1 Communications Concerning a Lawyer’s Services 7.2 Advertising 7.3 Solicitation of Clients 7.4 Communication of Fields of Practice and Specialization 7.5 Firm Names and Trade Names 1-500 Agreements Restricting a Member's Practice 5.6 Restrictions on a Lawyer’s Right to Practice 1-600 Legal Service Programs 5.4 Financial and Similar Arrangements with Nonlawyers18 1-650 Limited Legal Service Programs 6.5 Limited Legal Services Programs 1-700 Member as Candidate for Judicial Office 8.2 Judicial Officials 1-710 Member as Temporary Judge, Referee, or Court- 2.4.1 Lawyer as Temporary Judge, Referee, or Court- Appointed Arbitrator Appointed Arbitrator 2-100 Communication With a Represented Party 4.2 Communication with a Represented Person 2-200(A) Financial Arrangements Among Lawyers 1.5.1 Fee Divisions Among Lawyers 2-200(B) 7.2(b) Advertising 2-300 Sale or Purchase of a Law Practice of a Member, Living or 1.17 Sale of a Law Practice Deceased 2-400 Prohibited Discriminatory Conduct in a Law Practice 8.4.1 Prohibited Discrimination, Harassment and Retaliation 3-100 Confidential Information of a Client 1.6 Confidential Information of a Client 16 Rule 5.4 was amended by order of the Supreme Court, effective March 22, 2021. 17 Rule 5.4 was amended by order of the Supreme Court, effective March 22, 2021. 18 Rule 5.4 was amended by order of the Supreme Court, effective March 22, 2021. 2023 vii  RULES OF PROFESSIONAL CONDUCT CROSS-REFERENCE CHART “1992” Rules of Professional Conduct Current Rules of Professional Conduct Effective until October 31, 2018 Effective on November 1, 2018 (Rule Number and Title) (Rule Number and Title) 3-110 Failing to Act Competently 1.1 Competence19 3-110(B) 1.3 Diligence 3-110, Discussion ¶.1 Rule 5.1 Responsibilities of Managerial and Supervisory Lawyers Rule 5.2 Responsibilities of a Subordinate Lawyer Rule 5.3 Responsibilities Regarding Nonlawyer Assistants 3-120 Sexual Relations With Client 1.8.10 Sexual Relations with Current Client 3-200 Prohibited Objectives of Employment 3.1 Meritorious Claims and Contentions 3-210 Advising the Violation of Law 1.2.1 Advising or Assisting the Violation of Law 3-300 Avoiding Interests Adverse to a Client 1.8.1 Business Transactions with a Client and Pecuniary Interests Adverse to the Client 3-310(B), (C) Avoiding the Representation of Adverse Interests 1.7 Conflict of Interest: Current Clients 3-310(D) 1.8.7 Aggregate Settlements 3-310(E) 1.9 Duties To Former Clients 3-310(F) 1.8.6 Compensation from One Other than Client 3-320 Relationship With Other Party’s Lawyer 1.7(c)(2) Conflict of Interest: Current Clients 3-400 Limiting Liability to Client 1.8.8 Limiting Liability to Client 3-410 Disclosure of Professional Liability Insurance 1.4.2 Disclosure of Professional Liability Insurance 3-500 Communication 1.4 Communication with Clients20 3-510 Communication of Settlement Offer 1.4.1 Communication of Settlement Offers 3-600 Organization as Client 1.13 Organization as Client 3-700 Termination of Employment 1.16 Declining or Terminating Representation 21 4-100 Preserving Identity of Funds and Property of a Client 1.15 Safekeeping Funds and Property of Clients and Other Persons22 4-200 Fees for Legal Services 1.5 Fees for Legal Services 4-210 Payment of Personal or Business Expenses Incurred by or 1.8.5 Payment of Personal or Business Expenses Incurred by or for a Client for a Client 4-300 Purchasing Property at a Foreclosure or a Sale Subject to 1.8.9 Purchasing Property at a Foreclosure or a Sale Subject to Judicial Review Judicial Review 4-400 Gifts From Client 1.8.3 Gifts from Client 5-100 Threatening Criminal, Administrative, or Disciplinary 3.10 Threatening Criminal, Administrative, or Disciplinary Charges Charges 19 Rule 1.1, Comment was added by order of the Supreme Court, effective March 22, 2021. 20 Rule 1.4, Comment was amended by order of the Supreme Court, effective January 1, 2023. 21 Rule 1.16, Comment was amended by order of the Supreme Court, effective June 1, 2020. 22 Rule 1.15 was amended by order of the Supreme Court, effective January 1, 2023. viii 2023  RULES OF PROFESSIONAL CONDUCT CROSS-REFERENCE CHART “1992” Rules of Professional Conduct Current Rules of Professional Conduct Effective until October 31, 2018 Effective on November 1, 2018 (Rule Number and Title) (Rule Number and Title) 5-110 Special Responsibilities of a Prosecutor 3.8 Special Responsibilities of a Prosecutor23 (operative on May 1, 2017.) 5-110 Performing the Duty of Member in Government Service (operative until April 30, 2017.) 5-120 Trial Publicity 3.6 Trial Publicity 5-200(A)-(D) Trial Conduct 3.3 Candor Toward the Tribunal 5-200(E) Trial Conduct 3.4 Fairness to Opposing Party and Counsel 5-210 Member as Witness 3.7 Lawyer as Witness 5-220 Suppression of Evidence 3.4 Fairness to Opposing Party and Counsel (Note: Rule 5-220 was revised effective May 1, 2017.) (Note: See also Rule 3.8(d) regarding the duties of a prosecutor.) 5-300 Contact With Officials 3.5 Contact with Judges, Officials, Employees, and Jurors 5-310 Prohibited Contact With Witnesses 3.4 Fairness to Opposing Party and Counsel 5-320 Contact With Jurors 3.5 Contact with Judges, Officials, Employees, and Jurors Current Rules With No Former California Rule Counterpart Rule 1.2 Scope of Representation and Allocation of Authority Rule 1.8.2 Use of Current Client’s Information24 Rule 1.8.11 Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9 Rule 1.10 Imputation of Conflicts of Interest: General Rule Rule 1.11 Special Conflicts of Interest for Former and Current Government Officials and Employees Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral Rule 1.18 Duties to Prospective Client Rule 2.1 Advisor Rule 2.4 Lawyer as Third-Party Neutral Rule 3.2 Delay of Litigation Rule 3.9 Advocate in Non-adjudicative Proceedings Rule 4.1 Truthfulness in Statements to Others Rule 4.3 Communicating with an Unrepresented Person25 Rule 4.4 Duties Concerning Inadvertently Transmitted Writings Rule 5.3 Responsibilities Regarding Nonlawyer Assistants Rule 6.3 Membership in Legal Services Organizations Rule 8.3 Reporting Professional Misconduct 23 Rule 3.8, Comment was amended by order of the Supreme Court, effective June 1, 2020. 24 But see Bus. & Prof. Code § 6068(e). 25 But see current rule 3-600(D) regarding similar duties in an organizational context. 2023 ix x 2023  RULES OF PROFESSIONAL CONDUCT (On May 10, 2018, the California Supreme Court Comment issued an order approving new Rules of Professional Conduct, which are effective on November 1, 2018 On The Rules of Professional Conduct are intended September 26, 2018, the Court issued an order to establish the standards for lawyers for purposes of approving non-substantive clean-up revisions to the discipline. (See Ames v. State Bar (1973) 8 Cal.3d 910, rules. These revisions are effective on the same date.) 917 [106 Cal.Rptr. 489].) Therefore, failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process. Because Rule 1.0 Purpose and Function of the Rules of the rules are not designed to be a basis for civil Professional Conduct liability, a violation of a rule does not itself give rise to a cause of action for enforcement of a rule or for (a) Purpose. damages caused by failure to comply with the rule. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, The following rules are intended to regulate 1097 [41 Cal.Rptr.2d 768].) Nevertheless, a lawyer’s professional conduct of lawyers through discipline. violation of a rule may be evidence of breach of a They have been adopted by the Board of Trustees of lawyer’s fiduciary or other substantive legal duty in a the State Bar of California and approved by the non-disciplinary context. (Ibid.; see also Mirabito v. Supreme Court of California pursuant to Business and Liccardo (1992) 4 Cal.App.4th 41, 44 [5 Cal.Rptr.2d Professions Code sections 6076 and 6077 to protect 571].) A violation of a rule may have other non- the public, the courts, and the legal profession; disciplinary consequences. (See, e.g., Fletcher v. Davis protect the integrity of the legal system; and promote (2004) 33 Cal.4th 61, 71-72 [14 Cal.Rptr.3d 58] the administration of justice and confidence in the [enforcement of attorney’s lien]; Chambers v. Kay legal profession. These rules together with any (2002) 29 Cal.4th 142, 161 [126 Cal.Rptr.2d 536] standards adopted by the Board of Trustees pursuant [enforcement of fee sharing agreement].) to these rules shall be binding upon all lawyers. While the rules are intended to regulate (b) Function. professional conduct of lawyers, a violation of a rule can occur when a lawyer is not practicing law or (1) A willful violation of any of these rules is a acting in a professional capacity. basis for discipline. A willful violation of a rule does not require that (2) The prohibition of certain conduct in these the lawyer intend to violate the rule. (Phillips v. State rules is not exclusive. Lawyers are also bound by Bar (1989) 49 Cal.3d 944, 952 [264 Cal.Rptr. 346]; and applicable law including the State Bar Act (Bus. & see Bus. & Prof. Code, § 6077.) Prof. Code, § 6000 et seq.) and opinions of California courts. In addition to the authorities identified in paragraph (b)(2), opinions of ethics committees in (3) A violation of a rule does not itself give rise California, although not binding, should be consulted to a cause of action for damages caused by for guidance on proper professional conduct. Ethics failure to comply with the rule. Nothing in these opinions and rules and standards promulgated by rules or the Comments to the rules is intended other jurisdictions and bar associations may also be to enlarge or to restrict the law regarding the considered. liability of lawyers to others. The disciplinary standards created by these rules (c) Purpose of Comments. are not intended to address all aspects of a lawyer’s The comments are not a basis for imposing discipline professional obligations. A lawyer, as a member of but are intended only to provide guidance for the legal profession, is a representative and advisor of interpreting and practicing in compliance with the clients, an officer of the legal system and a public rules. citizen having special responsibilities for the quality of justice. A lawyer should be aware of deficiencies in (d) These rules may be cited and referred to as the the administration of justice and of the fact that the “California Rules of Professional Conduct.” poor, and sometimes persons* who are not poor cannot afford adequate legal assistance. Therefore, 2023 CURRENT RULES 1 An asterisk (*) identifies a word or phrase defined in rule 1.0.1  RULES OF PROFESSIONAL CONDUCT all lawyers are encouraged to devote professional (g) “Partner” means a member of a partnership, a time and resources and use civic influence to ensure shareholder in a law firm* organized as a professional equal access to the system of justice for those who corporation, or a member of an association because of economic or social barriers cannot afford authorized to practice law. or secure adequate legal counsel. In meeting this responsibility of the profession, every lawyer should (g-1) “Person” has the meaning stated in Evidence aspire to render at least fifty hours of pro bono Code section 175. publico legal services per year. The lawyer should aim to provide a substantial* majority of such hours to (h) “Reasonable” or “reasonably” when used in indigent individuals or to nonprofit organizations with relation to conduct by a lawyer means the conduct of a primary purpose of providing services to the poor or a reasonably prudent and competent lawyer. on behalf of the poor or disadvantaged. Lawyers may (i) “Reasonable belief” or “reasonably believes” also provide financial support to organizations when used in reference to a lawyer means that the providing free legal services. (See Bus. & Prof. Code, lawyer believes the matter in question and that the § 6073.) circumstances are such that the belief is reasonable. (j) “Reasonably should know” when used in Rule 1.0.1 Terminology reference to a lawyer means that a lawyer of (a) “Belief” or “believes” means that the person* reasonable prudence and competence would involved actually supposes the fact in question to be ascertain the matter in question. true. A person’s* belief may be inferred from (k) “Screened” means the isolation of a lawyer from circumstances. any participation in a matter, including the timely (b) [Reserved] imposition of procedures within a law firm* that are adequate under the circumstances (i) to protect (c) “Firm” or “law firm” means a law partnership; a information that the isolated lawyer is obligated to professional law corporation; a lawyer acting as a sole protect under these rules or other law; and (ii) to proprietorship; an association authorized to practice protect against other law firm* lawyers and law; or lawyers employed in a legal services nonlawyer personnel communicating with the lawyer organization or in the legal department, division or with respect to the matter. office of a corporation, of a government organization, or of another organization. (l) “Substantial” when used in reference to degree or extent means a material matter of clear and (d) “Fraud” or “fraudulent” means conduct that is weighty importance. fraudulent under the law of the applicable jurisdiction and has a purpose to deceive. (m) “Tribunal” means: (i) a court, an arbitrator, an administrative law judge, or an administrative body (e) “Informed consent” means a person’s* acting in an adjudicative capacity and authorized to agreement to a proposed course of conduct after the make a decision that can be binding on the parties lawyer has communicated and explained (i) the involved; or (ii) a special master or other person* to relevant circumstances and (ii) the material risks, whom a court refers one or more issues and whose including any actual and reasonably* foreseeable decision or recommendation can be binding on the adverse consequences of the proposed course of parties if approved by the court. conduct. (n) “Writing” or “written” has the meaning stated in (e-1) “Informed written consent” means that the Evidence Code section 250. A “signed” writing disclosures and the consent required by paragraph (e) includes an electronic sound, symbol, or process must be in writing.* attached to or logically associated with a writing and executed, inserted, or adopted by or at the direction (f) “Knowingly,” “known,” or “knows” means actual of a person* with the intent to sign the writing. knowledge of the fact in question. A person’s* knowledge may be inferred from circumstances. 2 CURRENT RULES 2023 An asterisk (*) identifies a word or phrase defined in rule 1.0.1  RULES OF PROFESSIONAL CONDUCT Comment Screened* Firm* or Law Firm* The purpose of screening* is to assure the affected client, former client, or prospective client Practitioners who share office space and that confidential information known* by the occasionally consult or assist each other ordinarily personally prohibited lawyer is neither disclosed to would not be regarded as constituting a law firm.* other law firm* lawyers or nonlawyer personnel nor However, if they present themselves to the public in a used to the detriment of the person* to whom the way that suggests that they are a law firm* or conduct duty of confidentiality is owed. The personally themselves as a law firm,* they may be regarded as a prohibited lawyer shall acknowledge the obligation law firm* for purposes of these rules. The terms of not to communicate with any of the other lawyers any formal agreement between associated lawyers and nonlawyer personnel in the law firm* with are relevant in determining whether they are a firm,* respect to the matter. Similarly, other lawyers and as is the fact that they have mutual access to nonlawyer personnel in the law firm* who are information concerning the clients they serve. working on the matter promptly shall be informed that the screening* is in place and that they may not The term “of counsel” implies that the lawyer so communicate with the personally prohibited lawyer designated has a relationship with the law firm,* with respect to the matter. Additional screening* other than as a partner* or associate, or officer or measures that are appropriate for the particular shareholder, that is close, personal, continuous, and matter will depend on the circumstances. To regular. Whether a lawyer who is denominated as “of implement, reinforce and remind all affected law counsel” or by a similar term should be deemed a firm* personnel of the presence of the screening,* it member of a law firm* for purposes of these rules will may be appropriate for the law firm* to undertake also depend on the specific facts. (Compare People ex such procedures as a written* undertaking by the rel. Department of Corporations v. Speedee Oil Change personally prohibited lawyer to avoid any Systems, Inc. (1999) 20 Cal.4th 1135 [86 Cal.Rptr.2d communication with other law firm* personnel and 816] with Chambers v. Kay (2002) 29 Cal.4th 142 [126 any contact with any law firm* files or other materials Cal.Rptr.2d 536].) relating to the matter, written* notice and instructions to all other law firm* personnel Fraud* forbidding any communication with the personally When the terms “fraud”* or “fraudulent”* are prohibited lawyer relating to the matter, denial of used in these rules, it is not necessary that anyone has access by that lawyer to law firm* files or other suffered damages or relied on the misrepresentation materials relating to the matter, and periodic or failure to inform because requiring the proof of reminders of the screen* to the personally prohibited those elements of fraud* would impede the purpose lawyer and all other law firm* personnel. of certain rules to prevent fraud* or avoid a lawyer In order to be effective, screening* measures assisting in the perpetration of a fraud,* or otherwise must be implemented as soon as practical after a frustrate the imposition of discipline on lawyers who lawyer or law firm* knows* or reasonably should engage in fraudulent* conduct. The term “fraud”* or know* that there is a need for screening.* “fraudulent”* when used in these rules does not include merely negligent misrepresentation or negligent failure to apprise another of relevant information. CHAPTER 1. Informed Consent* and Informed Written Consent* LAWYER-CLIENT RELATIONSHIP The communication necessary to obtain Rule 1.1 Competence informed consent* or informed written consent* will vary according to the rule involved and the (a) A lawyer shall not intentionally, recklessly, with circumstances giving rise to the need to obtain gross negligence, or repeatedly fail to perform legal consent. services with competence. 2023 CURRENT RULES 3 An asterisk (*) identifies a word or phrase defined in rule 1.0.1  RULES OF PROFESSIONAL CONDUCT (b) For purposes of this rule, “competence” in any and rule 1.6, a lawyer may take such action on behalf legal service shall mean to apply the (i) learning and of the client as is impliedly authorized to carry out the skill, and (ii) mental, emotional, and physical ability representation. A lawyer shall abide by a client’s reasonably* necessary for the performance of such decision whether to settle a matter. Except as service. otherwise provided by law in a criminal case, the lawyer shall abide by the client’s decision, after (c) If a lawyer does not have sufficient learning and consultation with the lawyer, as to a plea to be skill when the legal services are undertaken, the entered, whether to waive jury trial and whether the lawyer nonetheless may provide competent client will testify. representation by (i) associating with or, where appropriate, professionally consulting another lawyer (b) A lawyer may limit the scope of the whom the lawyer reasonably believes* to be representation if the limitation is reasonable* under competent, (ii) acquiring sufficient learning and skill the circumstances, is not otherwise prohibited by law, before performance is required, or (iii) referring the and the client gives informed consent.* matter to another lawyer whom the lawyer reasonably believes* to be competent. Comment (d) In an emergency a lawyer may give advice or Allocation of Authority between Client and Lawyer assistance in a matter in which the lawyer does not have the skill ordinarily required if referral to, or Paragraph (a) confers upon the client the ultimate association or consultation with, another lawyer authority to determine the purposes to be served by would be impractical. Assistance in an emergency legal representation, within the limits imposed by law must be limited to that reasonably* necessary in the and the lawyer’s professional obligations. (See, e.g., circumstances. Cal. Const., art. I, § 16; Pen. Code, § 1018.) A lawyer retained to represent a client is authorized to act on Comment behalf of the client, such as in procedural matters and in making certain tactical decisions. A lawyer is not The duties set forth in this rule include the duty authorized merely by virtue of the lawyer’s retention to to keep abreast of the changes in the law and its impair the client’s substantive rights or the client’s practice, including the benefits and risks associated claim itself. (Blanton v. Womancare, Inc. (1985) 38 with relevant technology. Cal.3d 396, 404 [212 Cal.Rptr. 151, 156].) This rule addresses only a lawyer’s responsibility At the outset of, or during a representation, the for his or her own professional competence. See rules client may authorize the lawyer to take specific action 5.1 and 5.3 with respect to a lawyer’s disciplinary on the client’s behalf without further consultation. responsibility for supervising subordinate lawyers and Absent a material change in circumstances and nonlawyers. subject to rule 1.4, a lawyer may rely on such an advance authorization. The client may revoke such See rule 1.3 with respect to a lawyer’s duty to authority at any time. act with reasonable* diligence. Independence from Client’s Views or Activities [Publisher’s Note: Comment was added by order of the Supreme Court, effective March 22, 2021.] A lawyer’s representation of a client, including representation by appointment, does not constitute an endorsement of the client’s political, economic, Rule 1.2 Scope of Representation and social or moral views or activities. Allocation of Authority Agreements Limiting Scope of Representation (a) Subject to rule 1.2.1, a lawyer shall abide by a client’s decisions concerning the objectives of All agreements concerning a lawyer’s representation and, as required by rule 1.4, shall representation of a client must accord with the Rules reasonably* consult with the client as to the means by of Professional Conduct and other law. (See, e.g., which they are to be pursued. Subject to Business rules 1.1, 1.8.1, 5.6; see also Cal. Rules of Court, rules and Professions Code section 6068, subdivision (e)(1) 3.35-3.37 [limited scope rules applicable in civil 4 CURRENT RULES 2023 An asterisk (*) identifies a word or phrase defined in rule 1.0.1  RULES OF PROFESSIONAL CONDUCT matters generally], 5.425 [limited scope rule may be invoked to obtain a determination of applicable in family law matters].) invalidity. Paragraph (b) also authorizes a lawyer to advise a Rule 1.2.1 Advising or Assisting the Violation of client on the consequences of violating a law, rule, or Law ruling of a tribunal* that the client does not contend is unenforceable or unjust in itself, as a means of (a) A lawyer shall not counsel a client to engage, or protesting a law or policy the client finds objectionable. assist a client in conduct that the lawyer knows* is For example, a lawyer may properly advise a client criminal, fraudulent,* or a violation of any law, rule, or about the consequences of blocking the entrance to a ruling of a tribunal.* public building as a means of protesting a law or policy the client believes* to be unjust or invalid. (b) Notwithstanding paragraph (a), a lawyer may: If a lawyer comes to know* or reasonably should (1) discuss the legal consequences of any know* that a client expects assistance not permitted proposed course of conduct with a client; and by these rules or other law or if the lawyer intends to act contrary to the client’s instructions, the lawyer (2) counsel or assist a client to make a good must advise the client regarding the limitations on the faith effort to determine the validity, scope, lawyer’s conduct. (See rule 1.4(a)(4).) meaning, or application of a law, rule, or ruling of a tribunal.* Paragraph (b) permits a lawyer to advise a client regarding the validity, scope, and meaning of Comment California laws that might conflict with federal or There is a critical distinction under this rule tribal law. In the event of such a conflict, the lawyer between presenting an analysis of legal aspects of may assist a client in drafting or administering, or questionable conduct and recommending the means interpreting or complying with, California laws, by which a crime or fraud* might be committed with including statutes, regulations, orders, and other state impunity. The fact that a client uses a lawyer’s advice or local provisions, even if the client’s actions might in a course of action that is criminal or fraudulent* violate the conflicting federal or tribal law. If California does not of itself make a lawyer a party to the course law conflicts with federal or tribal law, the lawyer of action. must inform the client about related federal or tribal law and policy and under certain circumstances may Paragraphs (a) and (b) apply whether or not the also be required to provide legal advice to the client client’s conduct has already begun and is continuing. regarding the conflict (see rules 1.1 and 1.4). In complying with this rule, a lawyer shall not violate the lawyer’s duty under Business and Professions Code section 6068, subdivision (a) to uphold the Rule 1.3 Diligence Constitution and laws of the United States and (a) A lawyer shall not intentionally, repeatedly, California or the duty of confidentiality as provided in recklessly or with gross negligence fail to act with Business and Professions Code section 6068, reasonable diligence in representing a client. subdivision (e)(1) and rule 1.6. In some cases, the lawyer’s response is limited to the lawyer’s right and, (b) For purposes of this rule, “reasonable diligence” where appropriate, duty to resign or withdraw in shall mean that a lawyer acts with commitment and accordance with rules 1.13 and 1.16. dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter Paragraph (b) authorizes a lawyer to advise a entrusted to the lawyer. client in good faith regarding the validity, scope, meaning or application of a law, rule, or ruling of a Comment tribunal* or of the meaning placed upon it by governmental authorities, and of potential This rule addresses only a lawyer’s responsibility consequences to disobedience of the law, rule, or for his or her own professional diligence. See rules ruling of a tribunal* that the lawyer concludes in good 5.1 and 5.3 with respect to a lawyer’s disciplinary faith to be invalid, as well as legal procedures that 2023 CURRENT RULES 5 An asterisk (*) identifies a word or phrase defined in rule 1.0.1  RULES OF PROFESSIONAL CONDUCT responsibility for supervising subordinate lawyers and For example, a lawyer’s receipt of funds on behalf of a nonlawyers. client requires communication with the client pursuant to rule 1.15, paragraphs (d)(1) and (d)(4) and See rule 1.1 with respect to a lawyer’s duty to ordinarily is also a significant development requiring perform legal services with competence. communication with the client pursuant to this rule. A lawyer may comply with paragraph (a)(3) by Rule 1.4 Communication with Clients providing to the client copies of significant documents by electronic or other means. This rule does not (a) A lawyer shall: prohibit a lawyer from seeking recovery of the (1) promptly inform the client of any decision lawyer’s expense in any subsequent legal proceeding. or circumstance with respect to which disclosure For example, a lawyer’s receipt of funds on behalf of a or the client’s informed consent* is required by client requires communication with the client these rules or the State Bar Act; pursuant to rule 1.15, paragraphs (d)(1) and (d)(4) and ordinarily is also a significant development requiring (2) reasonably* consult with the client about communication with the client pursuant to this rule. the means by which to accomplish the client’s objectives in the representation; Paragraph (c) applies during a representation and does not alter the obligations applicable at (3) keep the client reasonably* informed termination of a representation. (See rule 1.16(e)(1).) about significant developments relating to the representation, including promptly complying This rule is not intended to create, augment, with reasonable* requests for information and diminish, or eliminate any application of the work copies of significant documents when necessary product rule. The obligation of the lawyer to provide to keep the client so informed; and work product to the client shall be governed by relevant statutory and decisional law. (4) advise the client about any relevant limitation on the lawyer’s conduct when the [Publisher’s Note: Comment was amended by order lawyer knows* that the client expects assistance of the Supreme Court, effective January 1, 2023.] not permitted by the Rules of Professional Conduct or other law. Rule 1.4.1 Communication of Settlement Offers (b) A lawyer shall explain a matter to the extent (a) A lawyer shall promptly communicate to the reasonably* necessary to permit the client to make lawyer’s client: informed decisions regarding the representation. (1) all terms and conditions of a proposed plea (c) A lawyer may delay transmission of information bargain or other dispositive offer made to the to a client if the lawyer reasonably believes* that the client in a criminal matter; and client would be likely to react in a way that may cause imminent harm to the client or others. (2) all amounts, terms, and conditions of any written* offer of settlement made to the client (d) A lawyer’s obligation under this rule to provide in all other matters. information and documents is subject to any applicable protective order, non-disclosure agreement, (b) As used in this rule, “client” includes a person* or limitation under statutory or decisional law. who possesses the authority to accept an offer of settlement or plea, or, in a class action, all the named Comment representatives of the class. A lawyer will not be subject to discipline under Comment paragraph (a)(3) of this rule for failing to An oral offer of settlement made to the client in a civil communicate insignificant or irrelevant information. matter must also be communicated if it is a (See Bus. & Prof. Code, § 6068, subd. (m).) Whether a “significant development” under rule 1.4. particular development is significant will generally depend on the surrounding facts and circumstances. 6 CURRENT RULES 2023 An asterisk (*) identifies a word or phrase defined in rule 1.0.1  RULES OF PROFESSIONAL CONDUCT Rule 1.4.2 Disclosure of Professional Liability A lawyer may use the following language in Insurance making the disclosure required by paragraph (b): (a) A lawyer who knows* or reasonably should “Pursuant to rule 1.4.2 of the California know* that the lawyer does not have professional Rules of Professional Conduct, I am liability insurance shall inform a client in writing,* at informing you in writing that I no longer the time of the client’s engagement of the lawyer, have professional liability insurance.” that the lawyer does not have professional liability insurance. The exception in paragraph (c)(2) for government lawyers and in-house counsels is limited (b) If notice under paragraph (a) has not been to situations involving direct employment and provided at the time of a client’s engagement of the representation, and does not, for example, apply to lawyer, the lawyer shall inform the client in writing* outside counsel for a private or governmental entity, within thirty days of the date the lawyer knows* or or to counsel retained by an insurer to represent an reasonably should know* that the lawyer no longer insured. If a lawyer is employed by and provides legal has professional liability insurance during the services directly for a private entity or a federal, state representation of the client. or local governmental entity, that entity is presumed to know* whether the lawyer is or is not covered by (c) This rule does not apply to: professional liability insurance. (1) a lawyer who knows* or reasonably should know* at the time of the client’s engagement of Rule 1.5 Fees for Legal Services the lawyer that the lawyer’s legal representation of the client in the matter will not exceed four (a) A lawyer shall not make an agreement for, hours; provided that if the representation charge, or collect an unconscionable or illegal fee. subsequently exceeds four hours, the lawyer must comply with paragraphs (a) and (b); (b) Unconscionability of a fee shall be determined on the basis of all the facts and circumstances existing (2) a lawyer who is employed as a government at the time the agreement is entered into except lawyer or in-house counsel when that lawyer is where the parties contemplate that the fee will be representing or providing legal advice to a client affected by later events. The factors to be considered in that capacity; in determining the unconscionability of a fee include without limitation the following: (3) a lawyer who is rendering legal services in an emergency to avoid foreseeable prejudice to (1) whether the lawyer engaged in fraud* or the rights or interests of the client; overreaching in negotiating or setting the fee; (4) a lawyer who has previously advised the (2) whether the lawyer has failed to disclose client in writing* under paragraph (a) or (b) that material facts; the lawyer does not have professional liability insurance. (3) the amount of the fee in proportion to the Comment value of the services performed; The disclosure obligation imposed by paragraph (4) the relative sophistication of the lawyer (a) applies with respect to new clients and new and the client; engagements with returning clients. (5) the novelty and difficulty of the questions A lawyer may use the following language in involved, and the skill requisite to perform the making the disclosure required by paragraph (a), and legal service properly; may include that language in a written* fee agreement with the client or in a separate writing: (6) the likelihood, if apparent to the client, that the acceptance of the particular “Pursuant to rule 1.4.2 of the California employment will preclude other employment by Rules of Professional Conduct, I am the lawyer; informing you in writing that I do not have professional liability insurance.” 2023 CURRENT RULES 7 An asterisk (*) identifies a word or phrase defined in rule 1.0.1  RULES OF PROFESSIONAL CONDUCT (7) the amount involved and the results Comment obtained; Prohibited Contingent Fees (8) the time limitations imposed by the client or by the circumstances; Paragraph (c)(1) does not preclude a contract for a contingent fee for legal representation in (9) the nature and length of the professional connection with the recovery of post-judgment relationship with the client; balances due under child or spousal support or other financial orders. (10) the experience, reputation, and ability of the lawyer or lawyers performing the services; Payment of Fees in Advance of Services (11) whether the fee is fixed or contingent; Rule 1.15(a) and (b) govern whether a lawyer must deposit in a trust account a fee paid in advance. (12) the time and labor required; and When a lawyer-client relationship terminates, (13) whether the client gave informed consent* the lawyer must refund the unearned portion of a fee. to the fee. (See rule 1.16(e)(2).) (c) A lawyer shall not make an agreement for, Division of Fee charge, or collect: A division of fees among lawyers is governed by (1) any fee in a family law matter, the rule 1.5.1. payment or amount of which is contingent upon the securing of a dissolution or declaration of Written* Fee Agreements nullity of a marriage or upon the amount of spousal or child support, or property settlement Some fee agreements must be in writing* to be in lieu thereof; or enforceable. (See, e.g., Bus. & Prof. Code, §§ 6147 and 6148.) (2) a contingent fee for representing a defendant in a criminal case. Rule 1.5.1 Fee Divisions Among Lawyers (d) A lawyer may make an agreement for, charge, or collect a fee that is denominated as “earned on (a) Lawyers who are not in the same law firm* shall receipt” or “non-refundable,” or in similar terms, only not divide a fee for legal services unless: if the fee is a true retainer and the client agrees in (1) the lawyers enter into a written* writing* after disclosure that the client will not be agreement to divide the fee; entitled to a refund of all or part of the fee charged. A true retainer is a fee that a client pays to a lawyer to (2) the client has consented in writing,* either ensure the lawyer’s availability to the client during a at the time the lawyers enter into the specified period or on a specified matter, but not to agreement to divide the fee or as soon any extent as compensation for legal services thereafter as reasonably* practicable, after a full performed or to be performed. written* disclosure to the client of: (i) the fact that a division of fees will be made; (ii) the (e) A lawyer may make an agreement for, charge, or identity of the lawyers or law firms* that are collect a flat fee for specified legal services. A flat fee parties to the division; and (iii) the terms of the is a fixed amount that constitutes complete payment division; and for the performance of described services regardless of the amount of work ultimately involved, and which (3) the total fee charged by all lawyers is not may be paid in whole or in part in advance of the increased solely by reason of the agreement to lawyer providing those services. divide fees. (b) This rule does not apply to a division of fees pursuant to court order. 8 CURRENT RULES 2023 An asterisk (*) identifies a word or phrase defined in rule 1.0.1  RULES OF PROFESSIONAL CONDUCT Comment Comment The writing* requirements of paragraphs (a)(1) and Duty of confidentiality (a)(2) may be satisfied by one or more writings.* Paragraph (a) relates to a lawyer’s obligations under Business and Professions Code section 6068, Rule 1.6 Confidential Information of a Client subdivision (e)(1), which provides it is a duty of a lawyer: “To maintain inviolate the confidence, and at (a) A lawyer shall not reveal information protected every peril to himself or herself to preserve the from disclosure by Business and Professions Code secrets, of his or her client.” A lawyer’s duty to section 6068, subdivision (e)(1) unless the client gives preserve the confidentiality of client information informed consent,* or the disclosure is permitted by involves public policies of paramount importance. (In paragraph (b) of this rule. Re Jordan (1974) 12 Cal.3d 575, 580 [116 Cal.Rptr. 371].) Preserving the confidentiality of client (b) A lawyer may, but is not required to, reveal information contributes to the trust that is the information protected by Business and Professions hallmark of the lawyer-client relationship. The client Code section 6068, subdivision (e)(1) to the extent is thereby encouraged to seek legal assistance and to that the lawyer reasonably believes* the disclosure is communicate fully and frankly with the lawyer even necessary to prevent a criminal act that the lawyer as to embarrassing or detrimental subjects. The reasonably believes* is likely to result in death of, or lawyer needs this information to represent the client substantial* bodily harm to, an individual, as provided effectively and, if necessary, to advise the client to in paragraph (c). refrain from wrongful conduct. Almost without (c) Before revealing information protected by exception, clients come to lawyers in order to Business and Professions Code section 6068, determine their rights and what is, in the complex of subdivision (e)(1) to prevent a criminal act as provided laws and regulations, deemed to be legal and correct. in paragraph (b), a lawyer shall, if reasonable* under Based upon experience, lawyers know* that almost all the circumstances: clients follow the advice given, and the law is upheld. Paragraph (a) thus recognizes a fundamental principle (1) make a good faith effort to persuade the in the lawyer-client relationship, that, in the absence client: (i) not to commit or to continue the of the client’s informed consent,* a lawyer must not criminal act; or (ii) to pursue a course of conduct reveal information protected by Business and that will prevent the threatened death or Professions Code section 6068, subdivision (e)(1). substantial* bodily harm; or do both (i) and (ii); (See, e.g., Commercial Standard Title Co. v. Superior and Court (1979) 92 Cal.App.3d 934, 945 [155 Cal.Rptr.393].) (2) inform the client, at an appropriate time, of the lawyer’s ability or decision to reveal Lawyer-client confidentiality encompasses the lawyer- information protected by Business and client privilege, the work-product doctrine and ethical Professions Code section 6068, subdivision (e)(1) standards of confidentiality as provided in paragraph (b). The principle of lawyer-client confidentiality (d) In revealing information protected by Business applies to information a lawyer acquires by virtue of and Professions Code section 6068, subdivision (e)(1) the representation, whatever its source, and as provided in paragraph (b), the lawyer’s disclosure encompasses matters communicated in confidence by must be no more than is necessary to prevent the the client, and therefore protected by the lawyer- criminal act, given the information known* to the client privilege, matters protected by the work lawyer at the time of the disclosure. product doctrine, and matters protected under ethical standards of confidentiality, all as established in law, (e) A lawyer who does not reveal information rule and policy. (See In the Matter of Johnson (Rev. permitted by paragraph (b) does not violate this rule. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179; Goldstein v. Lees (1975) 46 Cal.App.3d 614, 621 [120 Cal.Rptr. 253].) The lawyer-client privilege and work-product doctrine apply in judicial and other proceedings in 2023 CURRENT RULES 9 An asterisk (*) identifies a word or phrase defined in rule 1.0.1  RULES OF PROFESSIONAL CONDUCT which a lawyer may be called as a witness or be affirmative obligation on a lawyer to reveal otherwise compelled to produce evidence concerning information protected by Business and Professions a client. A lawyer’s ethical duty of confidentiality is Code section 6068, subdivision (e)(1) in order to not so limited in its scope of protection for the lawyer- prevent harm. A lawyer may decide not to reveal client relationship of trust and prevents a lawyer from such information. Whether a lawyer chooses to revealing the client’s information even when not reveal information protected by section 6068, subjected to such compulsion. Thus, a lawyer may subdivision (e)(1) as permitted under this rule is a not reveal such information except with the informed matter for the individual lawyer to decide, based on consent* of the client or as authorized or required by all the facts and circumstances, such as those the State Bar Act, these rules, or other law. discussed in Comment of this rule. Narrow exception to duty of confidentiality under this Whether to reveal information protected by Business rule and Professions Code section 6068, subdivision (e) as permitted under paragraph (b) Notwithstanding the important public policies promoted by lawyers adhering to the core duty of Disclosure permitted under paragraph (b) is confidentiality, the overriding value of life permits ordinarily a last resort, when no other available action disclosures otherwise prohibited by Business and is reasonably* likely to prevent the criminal act. Prior Professions Code section 6068, subdivision (e)(1). to revealing information protected by Business and Paragraph (b) is based on Business and Professions Professions Code section 6068, subdivision (e)(1) as Code section 6068, subdivision (e)(2), which narrowly permitted by paragraph (b), the lawyer must, if permits a lawyer to disclose information protected by reasonable* under the circumstances, make a good Business and Professions Code section 6068, faith effort to persuade the client to take steps to subdivision (e)(1) even without client consent. avoid the criminal act or threatened harm. Among Evidence Code section 956.5, which relates to the the factors to be considered in determining whether evidentiary lawyer-client privilege, sets forth a similar to disclose information protected by section 6068, express exception. Although a lawyer is not subdivision (e)(1) are the following: permitted to reveal information protected by section 6068, subdivision (e)(1) concerning a client’s past, (1) the amount of time that the lawyer has to completed criminal acts, the policy favoring the make a decision about disclosure; preservation of human life that underlies this exception to the duty of confidentiality and the (2) whether the client or a third-party has evidentiary privilege permits disclosure to prevent a made similar threats before and whether they future or ongoing criminal act. have ever acted or attempted to act upon them; Lawyer not subject to discipline for revealing (3) whether the lawyer believes* the lawyer’s information protected by Business and Professions efforts to persuade the client or a third person* Code section 6068, subdivision (e)(1) as permitted not to engage in the criminal conduct have or under this rule have not been successful; Paragraph (b) reflects a balancing between the (4) the extent of adverse effect to the client’s interests of preserving client confidentiality and of rights under the Fifth, Sixth and Fourteenth preventing a criminal act that a lawyer reasonably Amendments of the United States Constitution believes* is likely to result in death or substantial* and analogous rights and privacy rights under bodily harm to an individual. A lawyer who reveals Article I of the Constitution of the State of information protected by Business and Professions California that may result from disclosure Code section 6068, subdivision (e)(1) as permitted contemplated by the lawyer; under this rule is not subject to discipline. (5) the extent of other adverse effects to the No duty to reveal information protected by Business client that may result from disclosure and Professions Code section 6068, subdivision (e)(1) contemplated by the lawyer; and Neither Business and Professions Code section 6068, subdivision (e)(2) nor paragraph (b) imposes an 10 CURRENT RULES 2023 An asterisk (*) identifies a word or phrase defined in rule 1.0.1  RULES OF PROFESSIONAL CONDUCT (6) the nature and extent of information that reasonable* under the circumstances, efforts to must be disclosed to prevent the criminal act or persuade the client or third person* to warn the threatened harm. victim or consider other appropriate action to prevent the harm. Even when the lawyer has concluded that A lawyer may also consider whether the prospective paragraph (b) does not permit the lawyer to reveal harm to the victim or victims is imminent in deciding information protected by section 6068, subdivision whether to disclose the information protected by (e)(1), the lawyer nevertheless is permitted to counsel section 6068, subdivision (e)(1). However, the the client as to why it may be in the client’s best imminence of the harm is not a prerequisite to interest to consent to the attorney’s disclosure of that disclosure and a lawyer may disclose the information information. protected by section 6068, subdivision (e)(1) without waiting until immediately before the harm is likely to Disclosure of information protected by Business and occur. Professions Code section 6068, subdivision (e)(1) must be no more than is reasonably* necessary to prevent Whether to counsel client or third person* not to the criminal act commit a criminal act reasonably* likely to result in death or substantial* bodily harm Paragraph (d) requires that disclosure of information protected by Business and Professions Paragraph (c)(1) provides that before a lawyer Code section 6068, subdivision (e) as permitted by may reveal information protected by Business and paragraph (b), when made, must be no more Professions Code section 6068, subdivision (e)(1), the extensive than is necessary to prevent the criminal lawyer must, if reasonable* under the circumstances, act. Disclosure should allow access to the information make a good faith effort to persuade the client not to to only those persons* who the lawyer reasonably commit or to continue the criminal act, or to persuade believes* can act to prevent the harm. Under some the client to otherwise pursue a course of conduct circumstances, a lawyer may determine that the best that will prevent the threatened death or substantial* course to pursue is to make an anonymous disclosure bodily harm, including persuading the client to take to the potential victim or relevant law-enforcement action to prevent a third person* from committing or authorities. What particular measures are continuing a criminal act. If necessary, the client may reasonable* depends on the circumstances known* be persuaded to do both. The interests protected by to the lawyer. Relevant circumstances include the such counseling are the client’s interests in limiting time available, whether the victim might be unaware disclosure of information protected by section 6068, of the threat, the lawyer’s prior course of dealings subdivision (e) and in taking responsible action to deal with the client, and the extent of the adverse effect with situations attributable to the client. If a client, on the client that may result from the disclosure whether in response to the lawyer’s counseling or contemplated by the lawyer. otherwise, takes corrective action—such as by ceasing the client’s own criminal act or by dissuading a third Informing client pursuant to paragraph (c)(2) of person* from committing or continuing a criminal act lawyer’s ability or decision to reveal information before harm is caused—the option for permissive protected by Business and Professions Code section disclosure by the lawyer would cease because the 6068, subdivision (e)(1) threat posed by the criminal act would no longer be present. When the actor is a nonclient or when the A lawyer is required to keep a client reasonably* act is deliberate or malicious, the lawyer who