Following is the 46th post in a series from Parker Taylor 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,” addressing the issue of attorneys receiving gifts from their clients. The Rule of Professional Conduct, as revised, is as follows:
Rule 1.8.3 Gifts from Client
(a) A lawyer shall not:
(1) solicit a client to make a substantial gift, including a testamentary gift, to the lawyer or a person related to the lawyer, unless the lawyer or other recipient of the gift is related to the client, or
(2) prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless (i) the lawyer or other recipient of the gift is related to the client, or (ii) the client has been advised by an independent lawyer who has provided a certificate of independent review that complies with the requirements of Probate Code section 21384.
(b) For purposes of this rule, related persons include a person who is “related by blood or affinity” as that term is defined in California Probate Code section 21374, subdivision (a).
Formerly found in Rule 4-400 of the CBA’s previous RPC (under the category of “Financial Relationship with Clients”), Rule 1.8.3 in the CBA’s revised RPC has been expanded. Most of the verbiage in the previous rule can now be found in Rule 1.8.3(a) and (a)(1), as set forth above, except that the current rule uses the word “solicit” instead of “induce” in its explanation of what an attorney is not allowed to do in an effort to obtain funds. Added to this warning in the CBA’s revised rule is a second stipulation that an attorney shall not prepare on behalf of a client an instrument giving the attorney a substantial gift. The revised rule has also added a new subdivision – subd. (b), explaining who is considered a “related person.”
The American Bar Association (ABA)’s RPC discusses this topic in Rule 1.8(c). The ABA’s rule, however, includes everything found in subds. (a)(1) and (b) of the CBA’s rule in one paragraph. (The text in CBA’s subd. (a)(2) is not in the ABA rule at all.)
Benefit: Generally speaking, this rule can protect an attorney from making the mistake of attempting to obtain funds from a client in an illegal manner, reducing the chances of the client losing the opportunity of being represented by that attorney in the future.
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