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LARS C. JOHNSON | Alternative Dispute Resolution
California Supreme Court Adopts New Rules of Professional Responsibility
OnMay 10, 2018, the Cali- fornia Supreme Court approved 69 rules of professional conduct, marking the  rst major overhaul of State ethics rules in 30 years.  ese new rules and amended or modi ed rules, went into e ect Nov. 1, 2018. While some changes are more cosmetic than any-
thing, some are substantive.
Format Change. One signi cant
(though non-substantive) change is that California has joined the rest of the country by adopting a numbering and organizational system based on the ABA Model Rules.  e new rules are organized under uniform head- ings numbered with periods rather than dashes.
Fee Splitting. Rule 1.5.1 implements two material changes to the previous rule (Rule 2-200) regarding fee split- ting between lawyers. First, the agree- ment between the lawyers to divide a fee must now be in writing. Second, the client must consent to the divi- sion a er full disclosure at or near the time that the lawyers enter into the agreement to divide the fee. Under the previous rule, there was no express requirement that the agreement be- tween the lawyers be in writing and case law has held that client consent to the fee division need not be ob- tained until the fee is actually divided, which might not occur until years af- ter the lawyers have entered into their
agreement.
Sexual Relations with Client. Rule 1.8.10 strictly for- bids sexual relations
with a current client who is not a spouse or registered domestic part- ner, unless a consensual sexual rela- tionship exists between them when the attorney-client relationship com- mences.
Safekeeping of Funds and Property of Clients and other Persons. Rule 1.15 requires that advance fee deposits be deposited in a client trust account. Under the previous rule (Rule 4-100), only advances for costs and expenses were required to be held in a trust ac- count.  e new Rule makes an excep- tion for “ at fee” advances, which may be held in a lawyer’s operating ac- count if certain disclosures are made and the client consents in writing.  e Rule and related comments also help distinguish between ordinary fee advances,  at fee advances, and “re- tainers” (wherein a non-refundable deposit is made to secure the lawyer’s availability rather than for compen- sating work).
Delay Tactics. Rule 3.2 prohibits a lawyer from engaging in tactics that have “no substantial purpose other than to delay or prolong the proceed- ing or to cause needless expense.”
Supervision. Rules 5.1 (Responsi- bilities of Managerial and Supervi- sory Attorneys), 5.2 (Responsibilities of a Subordinate Lawyer) and 5.3 (Re- sponsibilities Regarding Non-Lawyer Assistants) have been added in place of a comment paragraph under previ- ous rule 3-100 (competence) to clarify the duties and obligations of supervi- sory and subordinate legal personnel.
Prohibited Discrimination, Harass- ment and Retaliation. Rule 8.4.1 ex- pands the prior rule (2-400) by pro-
hibiting unlawful discriminatory or harassing conduct generally in the course of representing a client, pro- hibiting unlawful discriminatory or harassing conduct on the basis of pro- tected characteristics beyond those referenced in the prior rule, prohib- iting unlawful retaliation, and elimi- nating the requirement that there be a  nal civil determination of wrongful discrimination before a disciplinary investigation can commence or disci- pline can be imposed.
What Stayed the Same?
 e duty to act competently, which is violated only with intentional, reck- less, grossly negligent, or repeated conduct (See Rule 1.1).  e duty to act diligently, which no longer falls under “competence” but now has its own stand-alone rule (See Rule 1.3).  e rules protecting client con den- tiality, which are among the strongest in the country (See Rule 1.6 and Busi- ness and Profession Code §6068).  e Bar’s regulation of attorney advertise- ments and solicitation, which have been reorganized under Rules 7.1-7.5.
With the recent adoption of com- prehensive rules of professional con- duct, the California Supreme Court has ushered in a new era of attorney regulation.  e rules continue to be- come more complex while also be- coming more uniform with other ju- risdictions. Given the breadth of the changes, there are likely some new rules that directly impact your prac- tice. Take the time to review the re- cent changes to make sure you are in full compliance with your ethical ob- ligations. Your license and your liveli- hood are just too important not to.
Lars Johnson is a neutral for Signature Resolution, mediating a wide range of civil cases including those related to personal injury, property damage and insurance disputes. A graduate of Georgetown University and Loyola Law School in Los Angeles, he has served in the United States Navy Judge Advocate General’s Corps as both trial and appellate counsel and later worked in private practice representing plaintiffs in high-pro le and high-stakes tri- als. Johnson was a three-time  nalist for CAALA’s Trial Lawyer of the Year award. He was also one of the youngest members ever admitted to the American Board of Trial Advocates.
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