LPC Corner – Changes to the Ethics Rule

By Colin S. Anderson, Yolo County DCSS

For years the California State Bar has been talking about changing the Rules of Professional Conduct for Attorneys in the State of California. This topic was raised at the last CSDA Legal Practices Committee meeting on June 14 and 15 held at the Judicial Council’s office in Sacramento. The changes that impact your Local Child Support Agency (LCSA), and in particular your Managing and Supervising/Lead Attorney, I will discuss shortly. First, here is some background: In 2015, the California Supreme Court told the California State Bar to update its Rules of Professional Conduct. The idea was to bring California rules in line with the National Standard, i.e., the American Bar Association’s (ABA) model rules. Those of us who took the Professional Responsibility Exam remember that you had to study not only the California rules but the ABA model rules. They also had a different numbering system. That has now changed, and California and the ABA model rules have essentially the same numbering. In essence, the State Bar has blended the ABA model rules with California law. The new rules were submitted to the California Supreme Court on March 9, 2018, and the Supreme Court approved them with some minor changes on May 10, 2018. To most observers this was a really quick turnaround. The approved rules will go into effect November 1, 2018. Here is the link to the new rules.

How does this impact your LCSA and your legal operations? New Rule 5.1 defines the responsibilities of Managerial and Supervisory Lawyers. Subsection (a) mandates that a Supervisory Lawyer, “…shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm comply with these rules and the State Bar Act.” A local child support agency (LCSA) will be considered a “firm” for the sake of this section. The new rules go on to state a Supervising Lawyer can be held responsible for his or her subordinate’s violation of the ethics rules if: The Supervising Lawyer orders or, with knowledge of the relevant facts and of the specific conduct, ratifies the conduct involved or the Supervising Lawyer knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable action. In addition, Supervising Lawyers in our LCSAs can be held to the same standard as above, under certain circumstances, for the unethical conduct of the non-lawyer assistants employed by an LCSA. The specifics can be found at Rule 5.3 included in the above link. Since so much of our operations are involved in the legal process, this is something to think about. These codified changes should be reviewed by all legal staff and potentially new policies and procedures implemented in light of these ethical standards.