Confidentiality Revisited. Toward the end of the class, I shared with them, Section 6068(e)(1)’s strict mandate — at every peril to herself or himself — and the permissive exception of Section 6068(e) (2). The reaction was mixed whether a lawyer should disclose a client confidence even to prevent the death or serious bodily injury of a third party, using a variant of the Tarasoff facts to provoke the discussion. We then looked at ABA Model Rule 1.6, which has a permissive exception to confidentiality to prevent serious financial harm to another when the client is using the lawyer’s services to cause that harm. We used the Enron case as an example.1 Most of the class felt no disclosure was the
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proper ethical norm when only financial harm was at stake. One interesting exception: a student who thought there should be no exception with the Tarasoff facts — threatened death of a girlfriend — saw a basis for the ABA Model Rule exception when the serious financial harm would affect many people. We agreed it would be better to be his broker than his girlfriend! Sex With Clients. As promised at the outset, we had the conversation first and saved sex until last. The scenario was a 38-year-old lawyer who agrees to represent a 19-year-old “Dreamer” college student pro bono, and says he has creative strategies to deal with DACA; over
time he invites her to dinner, the theater and eventually his Mission Hills condo where they engage in consensual sex. The overwhelming majority of the class thought this was ethically wrong.2 As one student put it: “If he wants to continue the relationship, he should get her another lawyer who can represent her.” Unfortunately, time came for class to end. The experience, however — a group of smart, articulate, thoughtful college students — sheds a bright light on the ethical standards our clients and the public in general may expect from us. Edward McIntyre (edmcintyre@ethicsguru.law) is an attorney at law and co-editor of San Diego Lawyer.
A curious observation how we date ourselves — many of these business students had not heard of Enron. They laughed when they learned that Rule 3-120 prohibits the lawyer from continuing to represent the client only if his conduct would cause the lawyer to perform legal services incompetently.
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New Rules of Professional Conduct The California Supreme Court Has Acted
y an order filed May 10, 2018, the California Supreme Court changed California’s legal ethics landscape. The Court approved, without change, 27 of the comprehensive set of 70 proposed new or amended Rules of Professional Conduct that the Commission on the Revision of the Rules and the Board of Trustees had recommended for adoption. The Court also approved with minor modification another 42, and denied approval of only one of the 70 rules submitted. The new rules become effective November 1, 2018. Many of the changes are based on the ABA Model Rules of Professional
Conduct, in effect in almost every other jurisdiction in the United States — thus making California’s professional responsibility standards more uniform with national practice. The changes will be significant for California lawyers, touching almost every area of practice including fees (what must be deposited into a trust account and returned to the client at the end of the representation); litigation practice (including fairness to the opposing party and the duty not unduly to delay litigation); candor to the tribunal (with the obligation even after the fact to correct a false statement of fact or law); the responsibility of
supervising lawyers (with possible vicarious liability); prohibiting discrimination, harassment or retaliation in the practice of law; sexual relations with clients (not allowed unless the client is a spouse or domestic partner, or the sexual relationship predated the lawyer-client relationship); inadvertently transmitted confidential information (the ethical duty adopted in Rico v. Mitsubishi, now a rule of professional conduct, subjecting a lawyer to discipline); and many others. In upcoming issues, San Diego Lawyer will provide detailed analysis of the most significant rule changes.
SDCBA Summer Ethics Series: Navigating the Changes to the Rules of Professional Responsibility Learn about the new Rules of Professional Conduct during a special ethics series. Duties as a Counselor and as an Advocate, July 13 Law Firms, Associations and Marketing, August 10
Public Service, Integrity of the Profession and Transactions with Non-Lawyers, September 14
Register: www.sdcba.org/ethicsseries May/June 2018 SAN DIEGO LAWYER 29