United States: Really Big Goings On In California

Last Updated: August 1 2019
Article by Brian S. Faughnan

And, no, in the title I'm not referring to the leak of information about the California Bar essay topics before the bar exam. Although that story is certainly bananas.

You've likely by now read at least something somewhere online about the most recent product coming out of the California State Bar Task Force on Access Through Innovation of Legal Services, consisting of tentative recommendations that has been formally put out for public comment. Most of the usual places where you can readily get good news about issues relevant to (or related to) the practice of law have done a piece of some sort about it.

It really is a significant step in the national discussion about what the regulation of the practice of law ought to look like moving forward and, if you have the time, the full 250-or-so-pages of report and related attachments is worth a read and available at this link. (To be clear, if you only have time to read one report spanning hundreds of pages, it should be The Mueller Report. The future of legal ethics in this country isn't going to be of much importance if we can't get a handle on just how badly the rule of law is currently being threatened by our institutions (Part 2) and just how little faith and confidence we can have in the integrity of our elections process (Part 1). So, if you are a lawyer and still have not read that report yet, then you need to do so.)

The Mueller Report Download

(If you have time to read two massively long reports, then the ATILS report should be the other one.)

There is so much about the ATILS proposal, and its variants, that is worth writing about that I'm pretty certain I'm going to end up dedicating a few posts to the subject matter – though spread out a bit so as not to only write about it and nothing else for too long a time period. Aspects of what is being discussed are really substantial changes to the way things work now and will most certainly be scrutinized and subjected to significant debate.

To start off though, I want to just talk about two aspects of the report that ought to be much less controversial both because it is an easy jumping off point and because, on their own, they give a glimpse into how fast things are moving these days.

Now you may recall that California only very recently (effective November 1, 2018 as a matter of fact) revised their ethics rules in an overhaul that more closely resembles aspects of the ABA Model Rules. In so doing, California became the very last U.S. state to do so. But getting there took more than 17 years. With those revisions, California adopted a version of ABA Model Rule 1.1 on competence and adopted ethics rules related to legal advertising that at least followed the numbering and overall framework – with some deviations – of ABA Model Rules 7.1 through 7.5.

Despite the fact that California's versions of those rules still essentially have a "wet paint" sign on them, the task force report is proposing a revision to California's RPC 1.1 and is proposing that another pass be taken at California RPCs 7.1 through 7.5 to either put them more in line with the most recent revisions to the ABA Model Rules or possibly more in line with the less modest proposal that the Association of Professional Responsibility Lawyers made that (as written about here a time or two) started the process moving that led to the ABA revisions.

Being willing to consider such things less than a year since adopting new rules is a bit unusual on its own, but when it comes to RPC 1.1, the task force is going a bit further and proposing that California revise the language a bit even from what the ABA Model Rule says. To a large degree the proposed deviation is a bit wonky because, at heart, it stems from the age-old debate about where exactly the right lines are in terms of what Comments can be used for and what they can do when compared to the text of the rule itself. (The discussion of the motivation and issue is found at p. 18-19 of the task force report documents.)

The ABA Model Rule comment language reads:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and in practice, including the benefits and risks associated with relevant technology....

The California proposal would instead be:

The duties set forth in this rule include the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology.

For what it is worth, I can manage to both think that the ABA Model Rule approach does not run afoul of the balance between comment and rule but also agree with the task force proposal that if California adopted the proposed variation, it would likely be a better approach.

Now the cynical amongst us may say that these topics wouldn't be being addressed if there wasn't a much larger set of reforms being put on the table. And those folks are probably right ... about which more later.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions