Following is the 31st post in a series from Parker Law Group about recent changes to the California Bar Association (CBA)’s Rules of Professional Conduct (RPC). This rule is found in Chapter 1 – “Lawyer-Client Relationship,” discussing the prohibition regarding a lawyer’s involvement with a client’s illegal activity. The Rule of Professional Conduct, as revised, is as follows:
Rule 1.2.1 Advising or Assisting the Violation of Law
(a) A lawyer shall not counsel a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.
(b) Notwithstanding paragraph (a), a lawyer may:
(1) discuss the legal consequences of any proposed course of conduct with a client; and
(2) counsel or assist a client to make a good faith effort to determine the validity, scope, meaning, or application of a law, rule, or ruling of a tribunal.
Rule 1.2.1 of CBA’s new version of the RPC, as set forth above, has been both expanded and revised from the previous version of this rule (Rule 3-210). The previous version cautioned that a lawyer “shall not advise the violation of any law, rule, or ruling of a tribunal unless the member believes in good faith that such law, rule, or ruling is invalid.” It also said the lawyer could, if done in good faith, take appropriate steps to test the validity of the law, rule, or ruling.
CBA’s new version of this rule no longer permits a lawyer to decide, on his or her own, whether or not a ruling is valid. Instead, the lawyer must now refuse to counsel or assist a client in ANY action the lawyer knows to be criminal or fraudulent. However, it does permit a lawyer to discuss legal consequences or to help a client make a good faith effort of their own to determine the validity of the law, rule, or ruling that is relevant to their matter.
The American Bar Association (ABA)’s RPC addresses how a lawyer should handle a client’s illegal activity in a one-sentence paragraph at the end of Rule 1.2 – in Rule 1.2(d). As is the case with several other ABA RPC rules, the content is virtually the same as the corresponding rule in the CBA’s new RPC, although far more streamlined.
Benefit: Generally speaking, the fact that a lawyer no longer has the ability to decide whether a law or ruling is valid, and now requires the lawyer to work closely with his or her client to help them determine the law’s validity, a client’s matter is less likely to be compromised … reducing the likelihood of possible charges of legal malpractice in the future.
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