Category: Legal Ethics

By Eric R. Deitz

Changes to the Rules of Professional Conduct accompany the coming new year, and consistent with the duty of competence (Rule 1.1)[1], California attorneys must apprise themselves of the same. Two important and related changes take effect January 1, 2023, and affect a lawyer’s obligation to communicate (Rule 1.4) and to safely handle client funds and property (Rule. 1.15). Read More

By Charles Berwanger

All of us have most probably received email communications from opposing counsel in a matter in which counsel’s client is shown as a “cc.” You have been waiting for the opportunity to at long last communicate with the client. You fear that opposing counsel has not communicated your settlement offer to the client and now may be the opportunity to communicate that offer by hitting the “reply all” tab. The settlement proposal is relevant to the substance of the email. However, you are concerned that such a communication may violate Rule of Professional Conduct 4.2 which proscribes communicating with a represented party without the consent of opposing counsel. Read More

By Jeff Michalowski

In recent years, amicus briefing has played an increasingly significant role in appellate practice. This is true, of course, in blockbuster Supreme Court cases like Dobbs (in which 133 amici filed briefs) and Obergefell (in which 149 amici filed briefs). But amicus briefs consume more and more of practitioners’ time in the intermediate appellate courts as well, and occasionally in the trial courts, too. Consider Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014) (identifying 257 amicus briefs in same-sex marriage case). See also Allison Orr Larsen, “The Amicus Machine,” 102 Virginia Law Review 1901 (2016) (noting the increased use of amicus briefs, and increased citation to amicus briefs in opinions). Read More

By David C. Carr

American Bar Association (ABA) Model Rule 8.3 provides that “a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.” Despite being adopted by most, if not all, American jurisdictions, Rule 8.3 has not been adopted in California. A California version was considered by the Commission for the Revision of the Rules of Professional Conduct but not adopted as part of the Commission’s recommended set of rules. The drafting team memo sets forth this analysis: Read More