Mon. May 20th, 2024

Oath and Obligation’s of Attorney – California Lawyers

Intermittently, a lawyer should read the oath given upon admission to the practice of law. This will help remind the lawyer of his or her basic duties to clients and society. In California, the lawyer solemnly declares

“I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability. As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”

The oath to practice law in California includes the following: 

  • “I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California”
  • “I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability”
  • “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity”

Attorneys are first and foremost advocates for their clients’ causes. That is, California attorneys are called upon to be “zealous” advocates for their clients. The Supreme Court of California has affirmed this on several occasions stating that once a lawyer agrees to representation of a client, they must represent the client “zealously, within the bounds of the law.”[1] However, recent appellate court decisions have sought to temper the “zealousness” of advocacy with the equally important concepts of civility and cooperation:

We close this discussion with a reminder to counsel—all counsel, regardless of practice, regardless of age—that zealous advocacy does not equate with ‘attack dog’ or ‘scorched earth’; nor does it mean lack of civility. [Citations.] Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.[2]

 

Lawyers have always had a duty to be honest and truthful pursuant to general ethical principles, as well as the State Bar Act. The newest version of the Rules of Professional Conduct, effective November 1, 2018, provides more specific guidance to lawyers relative to this duty. Rules 1.2.1, 1.6, 3.4, 4.1, 4.2, 4.3,7.1 through 7.5, and 8.4 are all implicated in this duty, as well as Business & Professions Code (“B&P”) sections 6068(d), 6106, and 6128, among others. This discussion will focus on the B&P Code sections, violations of which constitute cause for disbarment or other State Bar sanction, including but not limited to suspension, fines, and re-taking the Professional Responsibility examination.

What’s included in the CRPC?

These rules outline the ethical responsibilities and standards that attorneys must adhere to in their practice. Please note that rules and regulations can change, so it’s important to refer to the latest official sources I’ve linked prior for the most up-to-date information. 

Lawyers are required to be truthful not only in dealing with the court and parties in litigation, but also in transactional matters and document preparation. Violations by a lawyer of these requirements can result in not only liability in tort — to one’s own client as well as opposing parties and counsel — but also in State Bar discipline.

Here are the primary areas of interest for the rules: 

Rule 1.1 Competence (Rule 1.1 – Competence): Attorneys must provide competent representation to their clients, which includes maintaining the necessary legal knowledge and skill. 

Rule 1.2.1 Advising or Assisting the Violation of Law  In fact, rule 1.2.1(b)(1) explicitly provides that a lawyer “may…discuss the legal consequences of any proposed course of conduct with the client.” 

Rule 1.3 Duty to client (Rule 1.3  Diligence): Attorneys must act with reasonable diligence and promptness in representing their clients. 

Rule 1.4 Duty of communication (Rule 1.4 – Communication): Attorneys must keep clients reasonably informed about the status of their case and promptly respond to their reasonable requests for information. 

Rules 1.5 Fees (Rule 1.5 – Fees): Attorneys must communicate their fees clearly and must not charge unreasonable fees. Contingent fee arrangements and fee-sharing arrangements are also governed by this rule. 

Rules 1.6 Confidentiality Of Information. Confidentiality (Rule 1.6 – Confidentiality of information): Attorneys must maintain the confidentiality of client information, subject to certain exceptions. 

Rule 1.7 Conflicts of interest (Rule 1.7 – Conflict of interest: General rule): Attorneys must not represent a client if there is a concurrent conflict of interest. They also have to avoid situations that could lead to conflicts of interest. 

Rule 1.9 Duties to former clients (Rule 1.9 – Duties to former clients): Attorneys must avoid conflicts of interest that arise from their previous representation of clients. 

Rule 3.1(a) prohibits an attorney from bringing or continuing an action, conducting a defense, asserting a position in litigation, or taking an appeal, “without probable cause and for the purpose of harassing or maliciously injuring any person”; or from presenting a claim or defense in litigation “that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.”
Rule 3.1(a) adds considerations of probable cause, harassment or malicious injury, and good faith to help an attorney determine the ethical contours of advocacy on behalf of a client. By its reference to probable cause and good faith, rule 3.1 reminds attorneys that they must always consider their duties to the justice system as well as their obligations to a client. Moreover, by its reference to harassment and malicious injury,
rule 3.1 emphasizes the importance of attorneys conforming their conduct with opposing parties and counsel within certain ethical limitations.[6]

Rule 3.3 Candor to the tribunal (Rule 3.3 – Candor toward the tribunal): Attorneys must be honest and forthright in their communications with courts and tribunals, including disclosing legal authority that is directly adverse to their client’s position.

Rule  3.3(a)(1) provides that a lawyer shall not knowingly “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”

Rules 3.4  section c a lawyer shall NOT falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law; Duties to the legal system (Rule 3.4 – Fairness to opposing party and counsel): Attorneys must not obstruct access to evidence, engage in frivolous litigation, or make false statements of law or fact to a tribunal. 

Rule 4.1 prohibits a lawyer from making a false statement of fact or law to a third person
Rules 4.1 (a) make a false statement Truthfulness in statements to others (Rule 4.1 – Truthfulness in statements to others): Attorneys must not make false statements of material fact or law to third parties, which includes other lawyers, clients, and the general public. 

Rules 4.2 “No Contact” Rule Prohibiting Communication with a Represented Person Without that Person’s Lawyer’s Consent

Rules 4.3  Transactions With Persons Other Than Clients

Rules 7.1 (a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services.

Rules 7.3 A lawyer shall not solicit professional employment

Rules 7.4 A lawyer shall not state that the lawyer is a certified specialist in a particular field of law, unless: (1) the lawyer is currently certified as a specialist in that field.

Rule 8.3 requires attorneys to report any lawyer who commits a criminal act, engages in fraud, misappropriates funds or property, or engages in conduct involving “dishonesty”

Rule 8.4 – Misconduct – Cal. R. Prof’l. Cond. 8.4 

Rule 8.4.1 Prohibited Discrimination, Harassment and Retaliation

Rule 8.4.2 defines incivility as “significantly unprofessional conduct that is abusive or harassing and shall be determined on the basis of all the facts and circumstances surrounding the conduct.”

Bus. & Prof. Code § 6067 – Questions regarding the legal ethical “duty of competence” can arise when law firms outsource legal work to freelance/contract attorneys.  Section 6067 of the California Business & Professions Code recites the attorney’s oath “to faithfully discharge the duties of an attorney at law to the best of his knowledge and ability.” California Rule of Professional Conduct 3-110 requires that an attorney perform legal services “competently,” which the Rule defines as “diligently to apply the learning and skill necessary to perform the member’s duties arising from employment or representation.”  Further, the discussion section of Rule 3-110 states, “The duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorneys and non-attorney employees or agents.”

Bus. & Prof. Code § 6067. Every person on his admission shall take an oath to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability. A certificate of the oath shall be indorsed upon his license.

Bus. & Prof. Code § 6068 contains a long list of an attorney’s duties: “It is the duty of an attorney to do all of the following: (d) to employ, for the purpose of meeting the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law. (Emphasis added.)

Bus. & Prof. Code § 6068(a) (c) and (d) and the related rules discussed in this article provide guidance to assist attorneys in finding their way through difficult ethical decisions faced in the practice of law. The ethical restraint on unbridled advocacy also has the salubrious effect of making attorneys better advocates for their clients because it encourages creative thinking and “out-of-the-box” analysis that otherwise might be overlooked. It is important to remember that just because something can be done, it does not follow that it should. This is the basic truth of ethical zealous advocacy that all California attorneys are duty-bound to heed in their advocacy on behalf of their clients and as officers of the court.

Bus. & Prof. Code § 6068(c) A second foundational duty is found in Bus. & Prof. Code § 6068(c) which provides it is a duty of an attorney “to counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just except the defense of a person charged with a public offense.”[5] Again, an attorney may not counsel a client to file a civil claim or action unless the attorney independently believes that claim or action is legal or just. An examination of the related RPC is helpful in fleshing out and understanding this duty.

Bus. & Prof. Code § 6068 identifies several important duties to the justice system imposed on all California attorneys. In general, these duties require an attorney not only to consider their client’s directives and interests but also to undertake an independent ethical evaluation of their conduct or proposed course of action on behalf of a client to ensure it falls within the limits imposed on their advocacy by the applicable ethical laws and rules.

Bus. & Prof. Code § 6068 identifies several important duties to the justice system imposed on all California attorneys. In general, these duties require an attorney not only to consider their client’s directives and interests but also to undertake an independent ethical evaluation of their conduct or proposed course of action on behalf of a client to ensure it falls within the limits imposed on their advocacy by the applicable ethical laws and rules.

First, paragraph (a) of § 6068 provides that it is a duty of an attorney to “support the Constitution and laws of the United States and of this state.”[4] This is a foundational attorney duty that seeks to ensure that any conduct or advocacy by an attorney on behalf of a client does not contravene the Constitution and laws of the federal government or California. While § 6068(a) seems to merely be a straightforward duty to obey the law, there is much more in view. This is evident when one examines the related RPC.

Bus. & Prof. Code § 6068(d) states: “The commission of any act involving moral turpitude, dishonesty, or corruption whether the act is committed in the course of his relations as an attorney, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” (Emphasis added.) “Moral turpitude” has been defined by the California Supreme Court as “anything done contrary to justice or honesty.” See Bryant v. State Bar of California (1942) 21 Cal.2d 285.

Bus. & Prof. Code § 6128 states: “Every attorney is guilty of a misdemeanor who either: Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.

Bus. & Prof. Code § SECTION 17200 Fraudulent Business Practices – Business and Professions Code Section 17200, also known as California’s Unfair Competition Law (“UCL”) prohibits any unlawful, unfair or fraudulent business act or practice.  It also prohibits unfair, deceptive, untrue or misleading advertising. While the statute is called “unfair competition,” its primary purpose is actually consumer protection. UCL Section 17200 is not limited to anti-competitive business practices but is also directed towards the public’s right to protection from fraud, deceit, and unlawful conduct.

Establishing that a “fraudulent” business practice has been committed under UCL Section 17200 is not subject to the same requirements as common law fraud. Rather, a Plaintiff need only show that the practice is likely to deceive members of the public. To bring an action under the UCL a potential Plaintiff must have suffered an injury in fact, and have lost money or property as a result of the unfair competition. In other words, there must be some form of economic injury in order to maintain an action. The UCL authorizes equitable remedies such as injunctions and restitution.

 (a) Any person who engages, has engaged, or proposes to engage in
unfair competition shall be liable for a civil penalty not to exceed
two thousand five hundred dollars ($2,500) for each violation, which
shall be assessed and recovered in a civil action brought in the name
of the people of the State of California by the Attorney General, by
any district attorney, by any county counsel authorized by agreement
with the district attorney in actions involving violation of a
county ordinance, by any city attorney of a city, or city and county,
having a population in excess of 750,000, with the consent of the
district attorney, by a city prosecutor in any city having a
full-time city prosecutor, or, with the consent of the district
attorney, by a city attorney in any city and county, in any court of
competent jurisdiction.

What is the statute of limitations for UCL 17200?

Statute of Limitations Defense

A plaintiff must file a lawsuit within a defined period of time after the alleged unlawful act or injury occurred. In the case of UCL claims, the statute of limitations is four years. If a plaintiff fails to file within four years, the defendant usually can get the case dismissed.

source

 

Related Laws: CLRA, ARL, and FTC Act

There are a few other related statutes that California consumers should be aware of when deciding whether to file a UCL claim.

CLRA Claims

Unfair Competition Law claims are often accompanied by claims under the California Consumers Legal Remedies Act (CLRA). The CLRA is more limited than the UCL because the CLRA includes protections for specific actions by businesses, whereas the UCL applies broadly to business fraud. It may be in the best interests of a plaintiff to bring a claim under both statutes because the remedies are cumulative. Beyond that, only the CLRA allows for punitive damages to be imposed against the defendant. Additionally, the CLRA allows plaintiffs to recover attorney’s fees.

ARL Claims

It is also possible for California consumers to use the Unfair Competition Law to bring a private civil action against companies that violate California’s automatic renewal laws. This is significant because the California ARL does not allow for a private right of action, which means that consumers who are deceived into signing up for an auto-renewal subscription may still be able to sue for full restitution under the UCL.

Federal Laws

There are also federal laws, such as the Federal Trade Commission Act (FTC Act), that protect California consumers against business fraud and false advertising. One advantage for plaintiffs filing a UCL claim is that the state statute has broad consumer protections that go beyond the protections provided under federal law.

Keep in mind that defendants may argue that more lenient federal law should apply in a particular case instead of the stringent California state law. That’s why it is important to have a skilled Los Angeles false advertising attorney on your side throughout the case. source


ATTORNEY’S OBLIGATION TO SELF-REPORT

Attorneys are obligated to self-report a whole host of matters under Business and Professions Code section 6068(o), including the following:

  1. Lawsuits and settlements:
  2. The filing of three or more lawsuits within a 12-month period for malpractice
  3. The filing of three or more lawsuits within a 12-month period for wrongful conduct committed in a professional capacity
  4. The entry of judgment in a civil action for: fraud, misrepresentation, breach of fiduciary duty or gross negligence in a professional capacity
  5. Settlement or arbitration award for fraud, misrepresentation, breach of fiduciary duty or gross negligence in a professional capacity where an attorney is not covered by professional liability insurance
  6. Reversal of judgment (civil or criminal):
  7. Reversal of judgment in a proceeding based on findings of misconduct, gross incompetence or misrepresentation
  8. Sanctions
  9. Criminal actions
  10. The bringing of an indictment or information charging the attorney with a felony
  11. A misdemeanor conviction for a crime committed in the practice of law or in which a client was the victim
  12. A misdemeanor conviction for a crime that necessarily involves dishonesty or moral turpitude, or an attempt, conspiracy or solicitation to commit such a crime
  13. A felony conviction
  14. Professional discipline
  15. Employment of a disbarred, resigned, suspended or involuntarily inactive attorney

Requirement to Report Sanctions

All sanctions must be reported unless they are less than $1,000 or for failure to make discovery

Requirement to Report Professional Discipline

Discipline imposed by a foreign bar, professional or occupational agency or licensing board in any state or jurisdiction, including in federal court must be timely reported to the State Bar. source


State Bar Act

The California State Bar Act is found within the Business & Professions Code at sections 6000 through 6243. 

The State Bar Act does a lot of essential things, including establishing and maintaining the State Bar itself. That said, it also contains important ethical mandates on topics like the unlawful practice of lawfee agreements, and advertising rules for lawyers. 

As an important aside, the State Bar Act covers some of the same topics as the CRPC, including advertising. That’s why it is absolutely critical for California legal professionals to be familiar with all of the statutory schemes regulating their practice and to get in the habit of consulting each set of rules before acting. 

What specifics are included in the California State Bar Act? 

The California State Bar Act is codified in the California Business and Professions Code, specifically in Title 4, Division 3. Some of the key aspects and functions governed by the California State Bar Act include: 

  • Regulation: The Act grants the State Bar regulatory authority over the legal profession in California. This includes the establishment of rules of professional conduct that lawyers must follow, investigation of complaints against attorneys, and discipline for ethical violations. 
  • Discipline: The Act provides the State Bar with the authority to investigate complaints of attorney misconduct and, if necessary, to take disciplinary actions against attorneys found to have violated ethical rules or engaged in unethical behavior. 
  • Board of trustees: The Act establishes the Board of Trustees of the State Bar of California. This governing body is responsible for overseeing the State Bar’s operations, setting policy, and ensuring compliance with the law. 
  • Consumer protection: One of the primary objectives of the State Bar is to protect the public from unethical or incompetent attorneys. The Act outlines how the State Bar fulfills this mission through regulation, investigation, and disciplinary actions. 
  • Access to justice: The Act may include provisions related to promoting access to justice, diversity in the legal profession, and other matters that are relevant to the legal community and the public. 

Additional statutes

 As noted in the introduction, laws regulating lawyer conduct can be found in 19 separate codes; and that’s not including the State Bar Act provisions of the Business & Professions Code. 

These other statutes tend to be highly specific, such as Civil Code Section 55.55, which regulates attorney fees and costs in construction-related accessibility claims. 

While listing these various statutes is beyond the scope of this article, legal professionals would be wise to review and keep a copy of the State Bar’s 294-page statutory anthology titled “Selected Statutes on Discipline and Duties of Licensees. 

California rules of court 

 In case you now feel like you’ve got a handle on all of the various ethics rules and regulations that apply to California attorneys, I’d like to invite you to review the series-9 rules of the California Rules of Court. 

Among other things, these rules do things like prescribe the oath an attorney must take in order to be admitted to the California Bar (and note, the language prescribed here is “in addition to” the oath language already provided in Business & Professions Code section 6067). 

The Rules of Court also set forth the procedures for attorney disciplinary hearings (Rules 9.10 – 9.23), define Certified Legal Specialists (Rule 9.35), and regulate pro hac vice appearances (Rule 9.40). 

Formal ethics opinions 

 Any good lawyer knows that while rules are important, the manner in which those rules are interpreted is critical. Interpretation of the State’s ethical rules can be found in the State Bar Ethics Opinions. 

These are formal opinions issued by the State Bar’s Committee on Professional Responsibility and Conduct. They seek to answer some of the most pressing ethical issues of the day. 

Note that these opinions are not binding on any court. Nonetheless, they are often cited in California Appellate Court and California Supreme Court decisions and carry great weight with judges. 

In case this seems like a pretty straightforward way to research ethical issues, you’d best hold on to your hat. The bar associations of some California counties (specifically, San FranciscoLos AngelesOrange, and San Diego) publish their own ethics opinions which can be useful when trying to navigate ethical dilemmas arising in any part of the state. 

Helpful resources 

 After reading this article, getting to complete grips with the California Rules of Professional Conduct may seem like a daunting task. 

It is, but fortunately, the California State Bar seems to recognize as much. The bar publishes some incredibly useful resources that consolidate many of the above sources into one place. Here are our favorites: 

  • Publication 250. Among other things, Publication 250 includes the California Rules of Court, the State Bar Act, and other relevant statutes. Note that this resource is intended to be used in addition to the CRPC. 
  • California Compendium on Professional Responsibility. This is a three-volume reference manual dealing solely with issues of ethics in California. It contains: 
  • All of the state and county ethics opinions referenced above; 
  • The Publication 250 Book; 
  • The California Code of Judicial Conduct; and 
  • A subject matter research index. This is particularly useful when the rules on a given topic (e.g., advertising) are found across multiple sources. 

Fortunately, this 514-page research compendium is also available online and serves as a great starting place for ethical research. 

The ethical rules for lawyers outlined in the California Rules of Professional Conduct are complex, scattered across multiple publications, and constantly evolving. Nonetheless, there’s almost nothing more important that you can do for your practice than to know and understand the rules and the various places they’re found. 

To make things easier for you the next time an ethical issue arises in your firm, feel free to bookmark the above links. You’ll be glad you did.  source


case law sources

  1. See, e.g., Hawk v. Sup.Ct. (People) (1974) 42 Cal.App.3d 108, 126.
  2. In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537.
  3. See Rule of Professional Conduct, rule 1.0(a).
  4. See also Bus. & Prof. Code § 6067, which sets for the attorney’s oath “to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.”
  5. The ethical limits in a criminal proceeding (or a proceeding that could result in incarceration, or involuntary commitment or confinement) are beyond the scope of this article and differ in important ways from the civil context. For instance, RPC rule 3.1(b) provides a lawyer for the defendant may defend the proceeding by requiring that every element of the case be established. This is not true in civil actions as discussed herein.
  6. Attorneys would be well-served to remember that civility, courtesy, and cooperation with opposing parties and their counsel will not diminish the effectiveness of their ethical zealous advocacy.
  7. See, e.g., Hawk v. Sup.Ct. (People) (1974) 42 Cal.App.3d 108, 126.
  8. In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537.
  9. See Rule of Professional Conduct, rule 1.0(a).
  10. See also Bus. & Prof. Code § 6067, which sets for the attorney’s oath “to support the Constitution of the United States and the Constitution of the State of California, and faithfully to discharge the duties of any attorney at law to the best of his knowledge and ability.”
  11. The ethical limits in a criminal proceeding (or a proceeding that could result in incarceration, or involuntary commitment or confinement) are beyond the scope of this article and differ in important ways from the civil context. For instance, RPC rule 3.1(b) provides a lawyer for the defendant may defend the proceeding by requiring that every element of the case be established. This is not true in civil actions as discussed herein.
  12. Attorneys would be well-served to remember that civility, courtesy, and cooperation with opposing parties and their counsel will not diminish the effectiveness of their ethical zealous advocacy.

Professional Responsibility in Client Representation – A Re-Evaluation


RULES OF PROFESSIONAL CONDUCT


Rule 1.1 – Competence (DA REPRESENTS THE STATE)

Rule 1.2 – Assisting in a Crime

Rule 3.1 – Meritorious Claims & Contentions

Rule 3.4 – Fairness to Opposing Party and Council

Model Rule 3.8 pt.2 – Special Duties of Prosecutors

Learn More: ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Model Rule 4.1 – Truthfulness in Statements to Others

 

Model Rule 4.4 – Respect for the Rights of Others

 

Model Rule 5.2 Responsibilities of a Subordinate Lawyer

Model Rule 8.1 Bar Admission & Disciplinary Matters

Model Rule 8.2 – Judicial & Legal Officials

Model Rule 8.3 – Reporting Professional Misconduct

Model Rule 8.4 pt.1 – Lawyer Misconduct

 

ABA Formal Op. 493 pt.1 – Rule 8.4(g): Purpose, Scope & Application

Model Rule 8.4 pt.2 – Discrimination & Harassment

 

Attorney Ethics Rules – FOX 17 Know the Law

 

 

 

 

More In Depth


Rule 1.2.1 Advising or Assisting the Violation of Law 

  • (a) A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows* is criminal, fraudulent,* or a violation of any law, rule, or ruling of a tribunal.*
  • (b) Notwithstanding paragraph (a), a lawyer may:
    1. (1) discuss the legal consequences of any proposed course of conduct with a client; and
    2. (2) counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of a law, rule, or ruling of a tribunal.*

Comment

  • [1] There is a critical distinction under this rule between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud* might be committed with impunity. The fact that a client uses a lawyer’s advice in a course of action that is criminal or fraudulent* does not of itself make a lawyer a party to the course of action.
  • [2] Paragraphs (a) and (b) apply whether or not the client’s conduct has already begun and is continuing. 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 Constitution and laws of the United States and California or the duty of confidentiality as provided in Business and Professions Code section 6068, subdivision (e)(1) and rule 1.6. In some cases, the lawyer’s response is limited to the lawyer’s right and, where appropriate, duty to resign or withdraw in accordance with rules 1.13 and 1.16.
  • [3] Paragraph (b) authorizes a lawyer to advise a client in good faith regarding the validity, scope, meaning or application of a law, rule, or ruling of a tribunal* or of the meaning placed upon it by governmental authorities, and of potential consequences to disobedience of the law, rule, or ruling of a tribunal* that the lawyer concludes in good faith to be invalid, as well as legal procedures that may be invoked to obtain a determination of invalidity.
  • [4] Paragraph (b) also authorizes a lawyer to advise a client on the consequences of violating a law, rule, or ruling of a tribunal* that the client does not contend is unenforceable or unjust in itself, as a means of protesting a law or policy the client finds objectionable. For example, a lawyer may properly advise a client about the consequences of blocking the entrance to a public building as a means of protesting a law or policy the client believes* to be unjust or invalid.
  • [5] If a lawyer comes to know* or reasonably should know* that a client expects assistance not permitted by these rules or other law or if the lawyer intends to act contrary to the client’s instructions, the lawyer must advise the client regarding the limitations on the lawyer’s conduct. (See rule 1.4(a)(4).)
  • [6] Paragraph (b) permits a lawyer to advise a client regarding the validity, scope, and meaning of California laws that might conflict with federal or tribal law. In the event of such a conflict, the lawyer may assist a client in drafting or administering, or interpreting or complying with, California laws, including statutes, regulations, orders, and other state or local provisions, even if the client’s actions might violate the conflicting federal or tribal law. If California law conflicts with federal or tribal law, the lawyer must inform the client about related federal or tribal law and policy and under certain circumstances may also be required to provide legal advice to the client regarding the conflict (see rules 1.1 and 1.4).

In fact, rule 1.2.1(b)(1) explicitly provides that a lawyer “may…discuss the legal consequences of any proposed course of conduct with the client.” 

comment [1] However, in providing counseling, an attorney must walk a fine line. As pointed out in comment [1] of rule 1.2.1, there is a critical distinction between presenting an analysis of questionable conduct and recommending how a crime or fraud might be committed with impunity. Thus, harmonizing the needs of the client with the integrity of the justice system is realized when an attorney acts within the ethical limits of advocacy outlined by law and the RPC.

Rule 1.2.1(a) and (b)(2) expands on the duty set forth in § 6068(a). It states that a lawyer “shall not counsel a client to engage or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal” except that the lawyer may “counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of a law, rule or ruling of a tribunal.” By prohibiting a lawyers counseling or assisting a client in criminal, fraudulent or unlawful conduct, rule 1.2.1 emphasizes that an attorney’s advocacy must include independent considerations beyond the directives and goals of a client. Moreover, an attorney is not required to simply walk away from a client in such a situation but instead may assist the client to understand the valid scope, meaning and application of the law at issue. In fact, rule 1.2.1(b)(1) explicitly provides that a lawyer “may…discuss the legal consequences of any proposed course of conduct with the client.” That is, the attorney can guide a client away from errant objectives through a better understanding of the law as well as help the client find a remedy that will serve their interests through valid and good faith application of law. Put another way, an attorney is authorized to counsel a client “off the ethical ledge” if they appear to have a criminal or fraudulent objective.

However, in providing counseling, an attorney must walk a fine line. As pointed out in comment [1] of rule 1.2.1, there is a critical distinction between presenting an analysis of questionable conduct and recommending how a crime or fraud might be committed with impunity. Thus, harmonizing the needs of the client with the integrity of the justice system is realized when an attorney acts within the ethical limits of advocacy outlined by law and the RPC. source

 


Cal. R. Prof’l. Cond. 3.4

A lawyer shall not:

  • (a) unlawfully obstruct another party’s access to evidence, including a witness, or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person* to do any such act;
  • (b) suppress any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or to produce;
  • (c) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
  • (d) directly or indirectly pay, offer to pay, or acquiesce in the payment of compensation to a witness contingent upon the content of the witness’s testimony or the outcome of the case. Except where prohibited by law, a lawyer may advance, guarantee, or acquiesce in the payment of:
    • (1) expenses reasonably* incurred by a witness in attending or testifying;
    • (2) reasonable* compensation to a witness for loss of time in attending or testifying; or
    • (3) a reasonable* fee for the professional services of an expert witness;
  • (e) advise or directly or indirectly cause a person* to secrete himself or herself or to leave the jurisdiction of a tribunal* for the purpose of making that person* unavailable as a witness therein;
  • (f) knowingly* disobey an obligation under the rules of a tribunal* except for an open refusal based on an assertion that no valid obligation exists; or
  • (g) in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the guilt or innocence of an accused.
Cal. R. Prof'l. Cond. 3.4

Comment

[1] Paragraph (a) applies to evidentiary material generally, including computerized information. It is a criminal offense to destroy material for purpose of impairing its availability in a pending proceeding or one whose commencement can be foreseen. (See, e.g., Pen. Code, § 13518 U.S.C. §§ 1501-1520.) Falsifying evidence is also generally a criminal offense. (See, e.g., Pen. Code, § 13218 U.S.C. § 1519.) Applicable law may permit a lawyer to take temporary possession of physical evidence of client crimes for the purpose of conducting a limited examination that will not alter or destroy material characteristics of the evidence. Applicable law may require a lawyer to turn evidence over to the police or other prosecuting authorities, depending on the circumstances. (See People v. Lee (1970) 3 Cal.App.3d 514, 526 [83 Cal.Rptr. 715]; People v. Meredith (1981) 29 Cal.3d 682 [175 Cal.Rptr. 612].)

[2] A violation of a civil or criminal discovery rule or statute does not by itself establish a violation of this rule. See rule 3.8 for special disclosure responsibilities of a prosecutor. source


Rule 4.1: Truthfulness in Statements to Others

Transactions With Persons Other Than Clients

In the course of representing a client a lawyer shall not knowingly:

(a) make a false statement of material fact or law to a third person; or

(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.


Rule 8.4.1 Prohibited Discrimination, Harassment and Retaliation


Rule 8.4 – Misconduct – Cal. R. Prof’l. Cond. 8.4 

It is professional misconduct for a lawyer to:

  • (a) violate these rules or the State Bar Act, knowingly* assist, solicit, or induce another to do so, or do so through the acts of another;
  • (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
  • (c) engage in conduct involving dishonesty, fraud,* deceit, or reckless or intentional misrepresentation;
  • (d) engage in conduct that is prejudicial to the administration of justice;
  • (e) state or imply an ability to influence improperly a government agency or official, or to achieve results by means that violate these rules, the State Bar Act, or other law; or
  • (f) knowingly* assist, solicit, or induce a judge or judicial officer in conduct that is a violation of an applicable code of judicial ethics or code of judicial conduct, or other law. For purposes of this rule, “judge” and “judicial officer” have the same meaning as in rule 3.5(c).
Cal. R. Prof'l. Cond. 8.4

Comment

  1.  A violation of this rule can occur when a lawyer is acting in propria persona or when a lawyer is not practicing law or acting in a professional capacity.
  2.  Paragraph (a) does not prohibit a lawyer from advising a client concerning action the client is legally entitled to take.
  3.  A lawyer may be disciplined for criminal acts as set forth in Business and Professions Code sections 6101 et seq., or if the criminal act constitutes “other misconduct warranting discipline” as defined by California Supreme Court case law. (See In re Kelley (1990) 52 Cal.3d 487 [276 Cal.Rptr. 375].)
  4.  A lawyer may be disciplined under Business and Professions Code section 6106 for acts involving moral turpitude, dishonesty, or corruption, whether intentional, reckless, or grossly negligent.
  5.  Paragraph (c) does not apply where a lawyer advises clients or others about, or supervises, lawful covert activity in the investigation of violations of civil or criminal law or constitutional rights, provided the lawyer’s conduct is otherwise in compliance with these rules and the State Bar Act.
  6.  This rule does not prohibit those activities of a particular lawyer that are protected by the First Amendment to the United States Constitution or by Article I, section 2 of the California Constitution.

source


Cal. Bus. & Prof. Code § 6068

It is the duty of an attorney to do all of the following:

  • (a) To support the Constitution and laws of the United States and of this state.
  • (b) To maintain the respect due to the courts of justice and judicial officers.
  • (c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.
  • (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.
  • (e)
    • (1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.
    • (2) Notwithstanding paragraph (1), an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.
  • (f) To advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.
  • (g) Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.
  • (h) Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.
  • (i) To cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against himself or herself. However, this subdivision shall not be construed to deprive an attorney of any privilege guaranteed by the Fifth Amendment to the Constitution of the United States, or any other constitutional or statutory privileges. This subdivision shall not be construed to require an attorney to cooperate with a request that requires him or her to waive any constitutional or statutory privilege or to comply with a request for information or other matters within an unreasonable period of time in light of the time constraints of the attorney’s practice. Any exercise by an attorney of any constitutional or statutory privilege shall not be used against the attorney in a regulatory or disciplinary proceeding against him or her.
  • (j) To comply with the requirements of Section 6002.1.
  • (k) To comply with all conditions attached to any disciplinary probation, including a probation imposed with the concurrence of the attorney.
  • (l) To keep all agreements made in lieu of disciplinary prosecution with the State Bar.
  • (m) To respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.
  • (n) To provide copies to the client of certain documents under time limits and as prescribed in a rule of professional conduct which the board shall adopt.
  • (o) To report to the State Bar, in writing, within 30 days of the time the attorney has knowledge of any of the following:
    • (1) The filing of three or more lawsuits in a 12-month period against the attorney for malpractice or other wrongful conduct committed in a professional capacity.
    • (2) The entry of judgment against the attorney in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity.
    • (3) The imposition of judicial sanctions against the attorney, except for sanctions for failure to make discovery or monetary sanctions of less than one thousand dollars ($1,000).
    • (4) The bringing of an indictment or information charging a felony against the attorney.
    • (5) The conviction of the attorney, including any verdict of guilty, or plea of guilty or no contest, of a felony, or a misdemeanor committed in the course of the practice of law, or in a manner in which a client of the attorney was the victim, or a necessary element of which, as determined by the statutory or common law definition of the misdemeanor, involves improper conduct of an attorney, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type.
    • (6) The imposition of discipline against the attorney by a professional or occupational disciplinary agency or licensing board, whether in California or elsewhere.
    • (7) Reversal of judgment in a proceeding based in whole or in part upon misconduct, grossly incompetent representation, or willful misrepresentation by an attorney.
    • (8) As used in this subdivision, “against the attorney” includes claims and proceedings against any firm of attorneys for the practice of law in which the attorney was a partner at the time of the conduct complained of and any law corporation in which the attorney was a shareholder at the time of the conduct complained of unless the matter has to the attorney’s knowledge already been reported by the law firm or corporation.
    • (9) The State Bar may develop a prescribed form for the making of reports required by this section, usage of which it may require by rule or regulation.
    • (10) This subdivision is only intended to provide that the failure to report as required herein may serve as a basis of discipline.

source


California Code, Business and Professions Code – BPC § 2246

(a) All records transmitted or distributed by a professional photocopier shall be accompanied by a certificate containing all of the following:

(1) An affidavit signed by the custodian of the original records that were reproduced for transmittal. It shall conform to the requirements specified in Article 4 (commencing with Section 1560) of Chapter 2 of Division 11 of the Evidence Code.

(2) An affidavit signed by the professional photocopier or his or her employee stating that the records shall be transmitted or distributed to the authorized persons or entities.

(b) The certificate shall bear the name, address, and registration number and county of registration of the professional photocopier. The custodian of records shall be entitled to a copy of the certificate, completed as provided in subdivision (a).

(c) The custodian of records shall not be liable for the improper release of the records when the records:

(1) Were released to a professional photocopier for the production of records under authorization or subpoena or other means.

(2) Were certified pursuant to this section.


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