A Comparison of Legal Profession Conduct Rules ➲ Australia v. California

Litigation + Dispute Resolution

A Comparison of Legal Profession Conduct Rules ➲ Australia v. California

This article aims to provide a high-level comparison of the Legal Profession Conduct Rules between Australia v. California.

Note: We are currently in the process of completing the comparison.

This note will be removed once the article moves from "work in progress" to "comparison completed".

Contents

Australia v. California
A Lawyer's Professional Duties
Duties To Clients
Duties To the Court, Adversaries, Legal Profession, Third Parties + Public

Australia v. California

Australian Solicitors' Conduct Rules (ASCR) 2015

The Australian Legal Profession is split [in some jurisdictions] into 3 main branches: Barristers (dedicated to Superior Court Advocacy), Solicitors, and Public Notaries.

Each branch of the legal profession have adopted their own Conduct Rules.

In order to simplify matters, we will use the Australian Solicitors' Conduct Rules (ASCR) 2015 as representative of the Australian Legal Profession more generally.

California Rules of Professional Conduct (CA*) 2018

California has recently adopted and made minor amendments to the California Rules of Professional Conduct 2018 (CA*) based on the American Bar Association (ABA) Model Rules of Professional Conduct which were first published in 1983.

Significant California Law distinctions (CA*) have been retained.

The legal culture in California is “liberal & literate”, meaning that if something needs to be done it can generally be done so long as the client's fully informed consent is obtained + confidentiality is protected.

A Lawyer's Professional Duties

The lawyer has a duty of: Confidentiality, Loyalty, Financial Responsibility, Competence (CLFC ➲ Clients Love Fierce Counsel) to each Client.
Candor/Truthfulness, Fairness, Dignity/Decorum & other reasonable things (CFD ➲ Courts Feel Differently) to the Court, Adversaries (parties and their counsel), Legal Profession, Third Parties, and the Public.

Whilst different phrasing may be adopted in the two jurisdictions, the primary professional duties for lawyers are basically the same.

Where distinctions exist, the different rules for the ABA, California (CA*) and Australia (ASCR) are highlighted.

Duties To Clients

Duty of Confidentiality to the Client

This duty continues even after formal representation ends, through the client's lifetime.

ABA: Indefinite.

CA*: Ends with Probate.

Exceptions: You may reveal confidences …

ABA: To prevent death or substantial bodily harm

CA*: To prevent criminal acts.
⚖️ ABA: You must first, if reasonable in the circumstances, make a good faith effort to persuade your client not to commit the act, and in …

CA*
: inform the client of your decision to reveal his/her confidences.

If the client used or is using your services to commit the crime, and the disclosure would prevent or mitigate substantial financial loss …

ABA: Disclosure is permitted to prevent or mitigate fraud or crimes causing financial injury.

CA*: No financial exceptions.

Duty of Loyalty to the Client
[Conflicts of Interest]

Never Ok "nonconsentable"

❌ 1️⃣ You can never represent opposite sides in the same proceeding before a tribunal

Maybe OK

2️⃣ Opposing a current client in another matter.

3️⃣ Not directly adverse: Two clients with inconsistent positions.

Legal Positions don't automatically create conflict.

4️⃣ Representing multiple clients in the same matter usually raises significant risks that your representation for one client may become materially limited as a result of other clients' interests.

TIP: Look for the risks of confidentiality in multiple client representation.

Not possible to build an ethical wall inside your own brain.

If conflict rippens:

Best Remedy is to withdraw (WD) from both clients and advise them to get separate counsel.

You must at least withdraw (WD) from one party because you cannot be loyal to your second client without revealing your first client's confidences.

Examples are representing:

➲ A corporation and any of its directors, officers, shareholders or employees;

➲ Both spouses in an uncontested divorce or drafting Wills;

❌ CA*: Prenup's require separate legal representation
✅ CA*: When a lawyer represents a policyholder and his insurance company as joint clients, and the insurer's interest in each matter is only as an indemnity provider, there is no conflict.

5️⃣ New clients in the same or substantially related matters where new client's interests are materially adverse to the former client;
Confidential information from a former client might be relevant to a new client's matter, you may be violating your continuing duty of confidentiality and your duty of loyalty to your former client.

Imputed Disqualification?

A: It depends on the nature of the work done.

⚖️ Using non-public confidential information against a former client requires consent.

Ask: Do the representations overlap in function, scope or information?

6️⃣ Former government lawyer moves to private practice.

⚖️ If the lawyer worked personally + substantially on a matter, they cannot work on that same matter in later private practice without the government's consent.

✅ Drafting regulations is not working on a matter.

Imputed Disqualification?

⚖️ Your firm can proceed so long as these conditions are met:

➲ You are screened off - ethical screen;

➲ You do not share any part of the fee in the matter [pre-arranged salaries or partnership shares are OK];

➲ Your former Government employer is informed [they might want to ensure or monitor the screening].

⚖️ Third=party neutrals: Judges, clerks, arbitrators, and all other third parties to work on a "matter" must have the consent of all of the parties to the matter in order to be OK to work on the same matter at a later stage.

How to proceed?

1️⃣ You reasonably believe you can represent everyone effectively despite the conflict;

2️⃣ Inform each affected client.

If your duty of confidentiality prevents you from fully disclosing information the client needs to understand the conflict, then consent may not be possible; and

3️⃣ The client consents, confirmed in writing.

ABA: Your writing to the client memoralising oral consent is sufficient.

CA*: Both your disclosures and the client's consent itself must be in writing.

Conflicts Between Lawyer + Client

Gifts to the lawyer

❌ You must not solicit a substantial gift from a client; or

❌ Draft a legal instrument for a client [who is not your close relative] if it provides a substantial gift to you or your relative. [If this occurs, also consider the Interested Drafter Doctrine, and Presumptions of Undue Influence].

Limiting Liability

You cannot limit:

❌ Your client's right to report you for professional misconduct or to cooperate in an investigation.

❌ ABA: Your malpractice liability when you enter a relationship with your client, unless your client is independently represented in making the agreement.

CA*: Bars malpractice limits.

Use of Confidential Information

Use of Confidential Information to a client's disadvantage, without consent, violates the duties of both loyalty and confidentiality.

Business Transactions or Adverse Interests

⚖️ You may enter into business with a client or obtain an interest adverse to your client only if:

[FDOC - First Discuss Over Coffee]

✅ The terms are Fair to the Client;

✅ Disclosed in understandable writing;

✅ The client is advised to consult an Outside Lawyer; and

✅ Your client provides Consent in a signed writing.

Grey Areas:

Be cautious if the investment is by individual law firm members; or

It is BIG, it might distort the law firm's advice, eg., regarding disclosure of bad news.

Board Service:

✅ Service on the Board of Directors of a non-profit legal service organisation is allowed.

⚖️ You can also sit on the Board of a corporate client.

❌ Now discouraged, because it is likely to compromise loyalty and confidentiality.

Best to be one or the other: Board Member or Legal Representative.

Publication rights contracts

ABA: No, not before the legal representation has ended.

CA*: Maybe, CA case law discourages contracts during proceedings, but allows them if the judge is satisfied that the client clearly understands and consents.

Loans to your client

❌ ABA: Forbids all financial assistance, except …

✅ Litigation expenses for an indigent client, where these can be forgiven under a contingent fee arrangement.

✅ CA*: Allows loans to a client in all matters for any purpose with a written loan agreement, but
❌ forbids promises to pay off a prospective clients debts.

Trial Counsel as a necessary witness

❌ You cannot appear as counsel and witness in the same trial.

Except where your testimony is:

✅ Uncontested; or

✅ About your legal services rendered.

ABA: You can continue as counsel if your distinctive value to the case means withdrawal would impose substantial hardship on the client.

⚖️ If testimony might prejudice the client, consent is required.

CA*: Allows the dual role in any case, with client consent.

Close relationship with your adversary's lawyer

⚖️ Opposing a party represented by your immediate family, i.e., your parent, child, sibling, and spouse,
➲ Requires all clients' consent.

CA*: Explicitly includes other "intimates" and cohabitants or firm clients.
CA*: Also requires written disclosure of any personal, legal, business, financial, or professional relationship you or your colleagues have with any party or witness. No consent is needed.

Sex with your client

ABA: You can't have consensual sex with your client unless your relationship predated the representation.

CA*: Also excuses married or domestic partners.

Conflicts due to 3rd party interference

General rule: Your sole duty is to your client not to any 3rd party.

⚖️ Payment for your services from a 3rd party is permitted only with informed client consent.

❌ Confidences cannot be shared.

Organisational Clients: A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary.

Federal Law Governs Securities (Corporate/in-house) Lawyers:

As in-house counsel, you must report violation of securities laws to the CEO or Chief Legal Counsel.

If they do not respond, you must go to the highest authority in the company.

If you reasonably believe it necessary to prevent fraud, perjury or substantial injury to the organisation or investors, or to rectify financial injury from a violation that involved your services, then you may disclose confidential information to the Securities Exchange Commission SEC without client consent.

ABA: Mandatory "reporting up", and permit limited "reporting out".

CA*: More restrictive confidentiality rules forbid this, but are preempted by federal securities law.
Can co-exist and comply with both in California as "reporting out" is only permissive, not mandatory.

Financial Duties to your Client

Attorney Fees

In non-contingent fee cases:

Agreements must include:

✅ How the fee is calculated;

✅ What services are covered;

✅ The Lawyer's Duties; and

✅ The Client's Duties.

CA*: Must be in writing unless the fee is:
✅ $1,000 or less 
✅ Corporate Client 
✅ Routine Services for a regular client; or
✅ It's an emergency or impractical.

In Contingent fee cases:

Must be in writing;

✅ Signed by the client; and contain

✅ Lawyer's %;

✅ What expenses will be deducted from the recovery?;

✅ Whether the % is taken out before or after expenses?

CA*: How work not covered by the contingency fee will be paid; and state that lawyer's fees are negotiable.
CA*: Must tell client at the time of engagement if you don't have Professional Indemnity Insurance whenever it is reasonably foreseeable the total representation of the client in the matter will exceed 4 hours (or within 30 days of when you become aware of the situation).
"Pursuant to California Rule of Professional Conduct 3-410:
I am informing you in writing that I do not have professional liability insurance."

Limits on contingent fees:

Not allowed in:

❌ criminal cases; and

❌ domestic relations (eg., ❌ divorce cases; ✅ collecting child support under an earlier order OK).

Termination before contingency/judgment

If and when the client wins, then the lawyer can recover in quantum meruit [reasonable fees] for the work completed.

When fees are too high?

ABA: Fees must be reasonable taking into account the Labour, Novelty, Difficulty, Skill and Timing required, Result Obtained, the Experience of and other Demands on the Attorney, Fee Arrangement, etc.

Memoriser: No [REASON TA FDDL] = Result, Experience, Attorney, Skill, Obtained, Novelty | Timing, Arrangement | Fee, Difficulty, Demands, Labour.

CA*: Fees must not be unconscionably high [unconscionable means so exorbitant as to shock the conscience]

If term of agreement is that if the client refuses a settlement offer that the lawyer believes if "fair and reasonable" then the client needs to pay $ per hour for all work completed by the lawyer to date.

Is this OK?

✅ OK, if it's a good faith valuation of the lawyer's service.

❌ If it functions as a penalty or forfeiture then it's unenforceable.

Double billing

Normally considered unreasonable fee + dishonest.

CA*: Allows if:
✅ The fee charged to each client is not unconscionable; 
✅ The attorney clearly disclosed the billing practice at the outset of the relationship; and 
✅ Obtained the clients' written consent.

Fee Disputes

ABA: encourages arbitration.

CA*: requires a lawyer to participate in fee arbitration if the client sues and requests it.

Fee Splitting

✅ Ok to split fees with other lawyers in your law firm.

⚖️ May split fees with lawyers outside your law firm:

Only if the total fee is ethical and not increased due to the sharing.

The agreement between the lawyers, the disclosure to the client (including the share of each lawyer), and the client's consent must all be in writing.

ABA: Any fee division be proportional to the work done by each attorney unless they are jointly responsible for the action.

CA*: Ok if the total fee isn't unconscionable or increased due to the sharing, and the client consents.

❌ Fee splitting with non-lawyers:

Not allowed (protects your judgment and prevents the unauthorised practice of law).

Exceptions:

✅ Death Benefits paid to a deceased lawyer's firm or heirs for his work

✅ Non-lawyer employees salaries

✅ Sharing of Court-awarded legal fees with a non-profit organisation that employed or recommended you.

Usual charges of a qualified referral are OK

⚖️ Reciprocal Referrals OK if they are not exclusive and you explain the existence and nature of the arrangement to the client.

❌ Partnerships with non-lawyers in providing legal services is prohibited for any practicing lawyer.

❌ Non-Lawyers cannot be partners, shareholders, officers, or control or direct your professional judgment.

Client Trust Accounts

Duty to safeguard your client's property by labelling and storing in a safe place.

Put money held for your client in a client trust account.

❌ Never borrow or commingle client funds with your personal money!

Interest after bank charges belongs to your client.

If client's funds are too small or ephemeral to cover bank charges, deposit them together with other clients' money in a pooled client trust account.

The interest (IOLTA) goes to the State Bar for services to the poor.

Get client consent to pay third parties from the client's trust money.

If you or a third person have a fee dispute or lawful claim over your client's funds or property in your custody, you must withhold the disputed amount in the trust account until resolution.

Duty to keep individual client ledgers, render accountings, notify your client of moneys received on their behalf, and pay promptly any money due to the client.

Must keep records of client property for 5 years after final distribution.

Competence & Other Common Sense Duties to your Client

Duty of Competence

Competence is using the legal knowledge, skill, thoroughness & preparation reasonably necessary for the representation.

CA*: Recognises mental, emotional and physical ability as part of competence.

If you don't know the relevant law, don't take the work unless you can learn it without undue expense or delay, or you work with a lawyer competent in the area.

Incompetence exposes you to:

❌ Discipline from the Bar

❌ Disqualification in a litigated matter; and

❌ Civil Malpractice Liability/Criminal a possibility.

Distinguish malpractice:

A malpractice action is a civil case brought by a plaintiff for money damages; a disciplinary action is administrative and brought by the state base to protect the public.

A malpractice plaintiff must prove a breach of duty of due care.

Duty of Diligence

You have a duty to diligently and promptly pursue your client's case to completion.

[In addition to the professional duty, also mention the possibility of the opposing party raising a Laches or Statute of Limitations defence].

Duty to Communicate

You have a duty to keep your client informed about the case, answer client communications, and convey settlement offers or significant developments.

If a settlement offer is made to joint clients, convey the offer to all, and make sure they agree on the division of the settlement before accepting.

Accepting Representation

Free to accept or reject any case.

A lawyer is not a bus.

You should accept, as part of your duty to the public and profession, a fair share of pro bono work.

You must reject a case if taking it would violate a law or ethical rule.

Typical problems are if you are not in the physical or mental shape to take the case (violating the duty of competence to the client).

Scope of Representation

A client decides substantive rights (eg., testifying in a criminal case, accepting a plea or settlement).

Lawyer decides on legal strategy (choice of motions).

If there is a disagreement, the lawyer you may limit the scope of representation, with client consent.

The lawyer may discuss the legal consequences of proposed conduct, but never assist a client with conduct you know is criminal or advise how to get away with criminal conduct!

Duties on Withdrawal (WD) from Representation

Mandatory Withdrawal

You must withdraw (WD) from a pending case if:

🔥 fired; or if continuing would

❌ Violate a law or ethical rule, e.g., if your physical or mental condition impairs your competence.

CA*: Explicitly required to withdraw (WD) if a client acts without probable cause and to harass or maliciously injure another.

⚖️ Permissive Withdrawal

Once a case has commenced in the Court, you may withdraw (WD) if you convince the Court there is good cause.

Recognised good causes include your client:

❌ Persisting in a criminal or fraudulent course of action;

❌ Making the representation unreasonably difficult; or

❌ Failing to fulfil an obligation to you after reasonable warning.

ABA: Permits withdrawal (WD) when

❌  representation will unreasonably financially burden you; or if it

❌ won't hurt your client's interests.

Process to Withdraw (WD)

You must:

✅ Provide timely notice to the client; and

Promptly return:

✅ Any unspent fee and expense advances; and

✅ All of the client's property and material papers (everything to pursue their case, even your own work product).

ABA: The position is uncertain as Courts decisions offer little guidance as to the circumstances under which a client's right to the papers exceeds the lawyer's right to use the papers as a vehicle to get paid.

CA*: ❌ Forbids holding your client's materials hostage to get paid!
ASCR: ✅ A lawyer can exercise a lien for unpaid legal costs over essential documents but must release the documents to the:

1️⃣ Client if they receive reasonable security; or

2️⃣ New lawyer if they undertake to hold the documents subject to the lien and with reasonable security; or

3️⃣ New lawyer if they pay the fees; or

4️⃣ New Lawyer if they enter into an agreement with the client to procure payment upon completion of the relevant proceedings.

Other Duties

Be reasonable + sensible.

Even when there are no explicit rules, you must act to promote public confidence in the integrity and efficiency of the legal system and profession.

Duties To the Court, Adversaries (Parties and their Counsel), Legal Profession, Third Parties + the Public

Duties of Candor to the Public & Dignity to the Profession:
➲ Advertising

❌ Advertising must not be false or misleading (don't omit material information)

❌ Don't raise unjustified expectations or make unverifiable comparisons

CA*: Presumes improper any add that contains guarantees, warranties, or predictions of a result.
❌ No testimonials or endorsements may be used unless there is an express disclaimer that they are not a GWP ➲ Guarantee, Warranty, or Prediction. ✅ Individual Results Differ!

Claims of legal specialties

✅ You can explain your fields of practice, such as "practice limited to federal courts".

❌ Do NOT advertise claims of specialisation unless:

✅ You are a certified specialist; and

✅ Your ad identifies the certifying organisation.

CA*: The CA Board of Legal Specialisation requires [4 E's]: Experience Examination Education Evaluations
CA*: Requires most advertising be labelled and, if applicable, identified as "a dramatisation" or "impersonation".

⚖️ If you mention a foreign language in your ad, you need to name the person in your office who speaks the language and the role of that person in your office/title of their position.

❌ You shall not pay anyone (over and above the ✅ reasonable cost of advertising) for recommending your services.

✅ Nominal/unexpected gift to a recommender OK

✅ You can pay a usual charge to a Qualified Lawyer Referral Service.

✅ Reciprocal referral with other lawyers OK if not exclusive and explained to the client.

➲ Solicitation

Individual contact with a layperson.

The Rules:

❌ Do not seek professional employment for pecuniary gain by initiating a live telephone or real-time auditory/visual contact with a specific person with whom you have no prior professional, personal or family relationship.

ABA: Exempts regular users of that kind of law.

CA*: Exempts any targeted outreach such as targeted advertising.

❌ Agents can't do anything a lawyer can't do.

✅ Chatroom designed to "offer emotional support to victims of the wildfires" OK to introduce yourself as a lawyer offering to answer legal questions for a fee.

❌ Avoid: Coercion, harassment or duress.

Duties of Candour to the Court & Fairness to your adversary

❌ You cannot engage in conduct involving dishonesty, fraud or misrepresentation.

These duties can trump conflicting duties of confidentiality and loyalty to your client.

Duty to present facts and evidence truthfully

❌ You must not make a false statement of material fact or offer evidence you know is false to a Court; or

❌ Fail to correct a false statement of material fact or law that you previously presented.

Client Perjury

❌ You must not knowingly facilitate client perjury.

In a Civil case, you must refuse to call a witness, including your client, if you know they intend to perjure themselves.

Criminal Defendants have a 5th amendment right to testify on their own behalf and a 6th amendment right to the effective assistance of Counsel.

How do you balance these rights + duties?

Take reasonable remedial measures

⚖️ Counsel your client to testify truthfully or not take the stand, then if that fails

⚖️ You may try to withdraw (WD) from the case, and if that fails

⚖️ ABA: Tell the judge. The right to Counsel and the duty of confidentiality DO NOT shield perjury.

CA*: If all else fails, you can allow the Defendant testify in a narrative fashion ❌ But DO NOT further the deception.
Eg., don't facilitate with questions, argue points later to the jury.

After the proceedings you client tells you they lied

Take reasonable remedial measures

⚖️ Counsel your client to recant.

Your duties end with the proceedings (after the time for appeal has run).

Witness Perjury or "unavailable"

❌ You must not counsel or assist a witness to testify falsely or to become "unavailable".

⚖️ Unless local law prohibits it, you may pay basic expenses of a witness and reasonable fees for expert witnesses, as long as payment is not contingent on the content of the testimony.

❌ If you discover a witness intends perjury. DO NOT put them on the stand.

⚖️ If you do not know, but only reasonably believe the testimony is false, these rules are permissive.

"I have never actually known my client was going to commit perjury".

Duty to produce evidence

❌ You must not suppress any evidence that your client has a legal obligation to reveal or produce, regardless of your duty of loyalty.

❌ You must not obstruct access to / tamper with fruits or instrumentalities of a crime.

❌ You may not disclose what you were told by your client [privileged confidential information] about the physical evidence

❌ You must not touch or interfere with physical evidence. Look, but don't touch! No duty to tell the other side - leave it where it is.

⚖️ If you move, interfere with or produce physical evidence you need to tell the authorities where it was found as well as the condition of the physical evidence that you moved or altered.

❌ You must not reveal the source of the information about the physical evidence's location.

✅ You may retain evidence for a reasonable time to prepare your client's case, e.g., to conduct tests so long as they will not alter the evidence.

Ex parte proceedings

The normal presumption is that you must not reveal facts harmful to your client.

Your ethical duties of candor to the Court and fairness to your (absent) adversary require you to volunteer relevant information in these cases.

Special duties of prosecutors

✅ Timely disclose evidence favourable to the defence.

✅ This ethical duty exceeds the Constitutional Brady obligation, requiring disclosure regardless of admissibility or impact on outcome.

Duty to state the law truthfully

❌ You must not make a false statement of law or present frivolous claims or defences to the Court. Doing so is subject to discipline.

✅ Be candid about the law and cite to adverse authority if controlling and on point.

Duty to uphold the law

Assisting a crime

❌ You must withdraw (WD), if continued representation would require you to commit or assist in committing a crime.

✅ You may withdraw (WD), if your client persists in criminal acts, but you are not assisting.

Preventing a crime

✅ You may disclose confidences if your client is going to commit an act reasonably likely to result in reasonably certain death or substantial bodily harm.

ABA: ✅ Permits disclosure.

CA*: Restricts to preventing criminal acts
⚖️ You must first, if reasonable in the circumstances, make a good faith effort to persuade your client not to commit the act, and in CA*: inform the client of your decision to reveal his/her confidences.

If your client's crime or fraud would only cause substantial financial loss and if your services were employed in it.

ABA: ✅ Permits disclosure to prevent or mitigate substantial financial loss.

CA*: ❌ Forbids any disclosure for these crimes, although federal securities law may preempts this in part.

Additional Duties of Fairness

Honesty in all dealings, both in and out of legal practice

Dealing fairly with others

Discrimination

✅ You can decline any legal cases you want for any reason, commence legitimate litigation against any party, etc.

❌ In your legal work DO NOT harass, discriminate on the basis of a protected characteristic, or retaliate against anyone.

❌ Your law firm MUST NOT discriminate in employment.

Extortion to gain an advantage in Civil Disputes

ABA: No corresponding rule. The original rule was limited to threats of criminal prosecution (the rule was removed from ABA Model Rules).  
Some states have continued to adopt the old rule, and other states have adopted something similar to the Californian rule below.

CA*: ❌ DO NOT use threats of making a disciplinary, administrative, or criminal complaint or proceedings as leverage in a civil dispute.
For example, if a lawyer believes in good faith that the conduct of the opposing lawyer or party violates criminal or other laws, the lawyer may state that if the conduct continues the lawyer will report it to criminal or administrative authorities.

On the other hand, a lawyer could not state or imply that a criminal or administrative action will be pursued unless the opposing party agrees to settle the civil dispute.
This rule does not apply to a threat to bring a civil action.
It also does not prohibit actually presenting criminal, administrative or disciplinary charges, even if doing so creates an advantage in a civil dispute.
Whether a lawyer’s statement violates this rule depends on the specific facts.
(See, e.g., Crane v. State Bar (1981) 30 Cal.3d 117 [177Cal.Rptr. 670].)
A statement that the lawyer will pursue “all available legal remedies,” or words of similar import, does not of itself violate this rule.

Documents sent inadvertently

ABA: If you know it was sent inadvertently, or intentionally but anonymously, promptly notify opposing counsel.

CA*: The bar covers only material shielded by privilege or work product. STOP READING as soon as your realise it is.

✅ If document intentionally sent, you may mine "metadata" this is just fully considering disclosed material.

TIP: It might represent a "confidentiality breach" of the disclosing lawyer.

Communication with adversaries and third parties

❌ You must not lie to people or mislead them as to your interests.

❌ You must not violate the legal rights of a person to obtain evidence, or use means with no purpose but to delay, burden or embarrass them.

Communication with represented entities

You must not communicate with a person you know is represented by counsel on the subject of your inquiry without consent of their counsel unless authorised by law or giving a second legal opinion.

ABA: Prohibition covers any current employee whose communication might bind or be imputed to the organisation or constitute an admission on its part.

CA*: Consent is required for interviews of an officer, director, or managing agent of an organisation.

Dealing with the press

Duty not to interfere with a defendant's right to a fair trial.

❌ You and your agents must avoid out of court statement that you reasonably should know have a substantial likelihood of materially prejudicing.

Exceptions:

✅ Matters in the public record;

✅ Routine booking information;

✅ Warning the public;

✅ Informing the public of an ongoing investigation;

✅ To mitigate undue prejudice to your client from publicity that you didn't start [responding OK].

❌  Prosecutors and their aids must not make comments that have a substantial likelihood of heightening public condemnation of the accussed.

Preserving the dignity of the Court and additional duties

Duty to preserve the decorum and impartiality of the tribunal

❌ Don't try to influence anybody improperly.

❌ Before and during the trial don't talk to any prospective or empanelled jurors.

✅ After the trial you may interview consenting jurors.

No "chicanery" = trickery: especially by lawyers/politicians

Eg., referring to inadmissible material, matters unsupported by evidence, asserting personal knowledge of facts at issue.

Preserve the Court's decorum

Refrain from abusive or obstreperous conduct, belligerence, or theatrics.

ABA: "A lawyer may stand firm against abuse by a judge but should avoid reciprocation".

Duty to expedite cases

ABA: An affirmative duty to expedite cases.

CA*: You must not delay cases to harass an adversary, or for your own personal gain or convenience.

✅ Duty to follow valid procedural rules and court orders unless you are making a good faith challenge to their validity.

❌ Do not abuse or obstruct discovery.

Additional Duties to the profession and the public

❌ To protect the public from incompetence, the unlicensed or unauthorised practice of law is forbidden.

❌ Practice while suspended or not admitted is a violation unless allowed by law, a local court order, or limited exceptions.

ABA: Rules on Multi-jurisidictional practices (MJP) allow you to temporarily practice out-of-state if you are:

✅ In good standing in a state; and

1️⃣ you associate with a locally admitted lawyer who actively participates in the matter;  
2️⃣ the services relate to alternative dispute resolution, or
3️⃣ the matter is reasonably related to your home state practice and the forum does not require a pro hac vice appearance (where the Court formally approves the out-of-state lawyer to participate in a particular case - such a motion can be opposed by the other side).

CA*: California structures its more restrictive rules for out-of-state lawyers by practice area. They generally require the lawyer to register with the CA Bar, pay dues, get continuing legal education, and be subject to CA ethics rules.
"Registered foreign legal consultants" are limited to advising on the law of their country of licensure.

Example: An out-of-state law firm created and advertised software which assists them with California legal process, provide legal advice and prepares Court documents.

This represents the unauthorised practice of law in California. The program activities are "beyond the capabilities and knowledge of laypersons".

Policing Misconduct

ABA: You must report to "the appropriate professional authority" any other lawyers or judges breach of the rules in any legal or non-legal context if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer.

CA*: California does not require external reporting, but can discipline you for knowing about a colleague's violation and doing nothing to prevent it. (Eg., counsel the lawyer, or tell a supervisor).
CA*: California also requires you to self-report if:
Charged with a Felony, Convicted of Serious Crimes, or found Civilly Liable for Fraud or Breach of Fiduciary Duty, Disciplined or Sanctioned, or Sued for Malpractice 3 times in a Year.

Duties of subordinate lawyers

What if you are working under the control or supervision of a senior lawyer who ratifies or orders you to take an action violating an ethical rule?

Your ethical responsibility if it is a:

❌ Clear violation. You are also personally subject to discipline;

⚖️ A debatable problem. Your supervisor is solely responsible.

Your supervising partner's ethical responsibility if:

⚖️ He ratified the action and knew of the conduct and failed to take action, he is in violation.

Managing Partners must also make reasonable efforts to ensure that the conduct of all firm employees or outsourced workers comports with the professional obligations of a lawyer, including non-lawyer assistants.

Credits:

Cover Image courtesy of Aaron Burden on Unsplash

This article was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠ as part of his study of California Law in preparation to sit the California Bar Exam.

Important Notice:

This article is intended for general interest and information only. It is not legal advice and nor should it be relied upon or used as such. Always consult a lawyer for specialist advice specific to your needs and circumstances.