Following is the 48th 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 revision (along with Rule 1.0) is no longer included in Chapter 1, but is now in an introductory section that comes BEFORE Chapter 1. This Rule of Professional Conduct, as revised, is as follows:
Rule 1.0.1 Terminology
(a) “Belief” or “believes” means that the person involved actually supposes the fact in question to be true. A person’s belief may be inferred from circumstances.
(b) [Reserved]
(c) “Firm” or “law firm” means a law partnership; a professional law corporation; a lawyer acting as a sole proprietorship; an association authorized to practice law; or lawyers employed in a legal services organization or in the legal department, division or office of a corporation, of a government organization, or of another organization.
(d) “Fraud” or “fraudulent” means conduct that is fraudulent under the law of the applicable jurisdiction and has a purpose to deceive.
(e) “Informed consent” means a person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct.
(e-1) “Informed written consent” means that the disclosures and the consent required by paragraph (e) must be in writing.
(f) “Knowingly,” “known,” or “knows” means actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances.
(g) “Partner” means a member of a partnership, a shareholder in a law firm organized as a professional corporation, or a member of an association authorized to practice law.
(g-1) “Person” has the meaning stated in Evidence Code section 175.
(h) “Reasonable” or “reasonably” when used in relation to conduct by a lawyer means the conduct of a reasonably prudent and competent lawyer.
(i) “Reasonable belief” or “reasonably believes” when used in reference to a lawyer means that the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable.
(j) “Reasonably should know” when used in reference to a lawyer means that a lawyer of reasonable prudence and competence would ascertain the matter in question.
(k) “Screened” means the isolation of a lawyer from any participation in a matter, including the timely imposition of procedures within a law firm that are adequate under the circumstances (i) to protect information that the isolated lawyer is obligated to protect under these rules or other law; and (ii) to protect against other law firm lawyers and nonlawyer personnel communicating with the lawyer with respect to the matter.
(l) “Substantial” when used in reference to degree or extent means a material matter of clear and weighty importance.
(m) “Tribunal” means: (i) a court, an arbitrator, an administrative law judge, or an administrative body acting in an adjudicative capacity and authorized to make a decision that can be binding on the parties involved; or (ii) a special master or other person to whom a court refers one or more issues and whose decision or recommendation can be binding on the parties if approved by the court.
(n) “Writing” or “written” has the meaning stated in Evidence Code section 250. A “signed” writing includes an electronic sound, symbol, or process attached to or logically associated with a writing and executed, inserted, or adopted by or at the direction of a person with the intent to sign the writing.
Application:
As set forth above, the number of terms defined in this rule has increased from five to fifteen. Formerly, in CBA’s RPC Rule 1-100(B), the only terms defined in this list were: law firm, member, lawyer, associate, and shareholder. Rule 1.0.1 in the CBA’s revised RPC still defines “law firm” in its list of terminology – in subd. (c), but the other four terms defined in the previous rule’s list are all included in subd. (g) (“Partner”). Most of the other thirteen terms in the new rule are abstract in nature, defining words that can easily be misinterpreted by those unfamiliar with the law. (The only ones NOT abstract are “person” and “tribunal”) The eleven remaining terms are: belief (believes), fraud (fraudulent), informed consent, informed written consent, knowingly (known, knows), reasonable (reasonably), reasonable belief (reasonably believes), reasonably should know, screened, substantial, and writing (written).
The CBA’s previous version of this rule – Rule 1-100(A)-(E) – included more information than the revised version (as set forth above) does. The previous rule’s verbiage discussing terminology and disciplinary authority has now been incorporated into other rules. (See Rules 1.0.1 and 8.5.)
The only difference between the American Bar Association (ABA)’s RPC list of terminology (found in Rule 1.0) and the CBA’s revised RPC Rule 1.0.1 is subd. (b). The CBA’s rule shows this as [Reserved], but ABA Rule 1.0(b) defines the term “confirmed in writing” – “… when used in reference to the informed consent of a person, denotes informed consent that is given in writing by the person or a writing that a lawyer promptly transmits to the person confirming an oral informed consent. See paragraph (e) for the definition of “informed consent.” If it is not feasible to obtain or transmit the writing at the time the person gives informed consent, then the lawyer must obtain or transmit it within a reasonable time thereafter.”
Benefit: Generally speaking, the definitions of terminology commonly used in legal matters can help clients better understand legal documents.
The information provided herein is informational only and should not be construed as legal advice or as an agreement for representation. This is not an advertisement. If you have an issue or dispute with your attorney, or are seeking advice with respect to your obligations, you should consult with an experienced attorney. Parker Taylor Law Group is a full-service litigation and transactional law firm. Mr. Parker has represented clients in professional malfeasance disputes for over 23 years. If you would like to schedule an initial consultation with Mr. Parker or his team, you can reach them at (916) 996-0400 or at contact@parlawgroup.com. (An email to the law firm requesting a consultation does not create an attorney-client relationship or any agreement for representation by the firm.)
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