Legal News

Proposed amendments to California professional conduct rules draw fire

By Jason Siegel

LOS ANGELES ? Lawyers in California are objecting to three proposed amendments to the state's rules of professional conduct, two of which would carve out exceptions for prosecutors.

The most controversial amendment would prohibit lawyers from talking, without consent, to anybody in a case who is represented by another lawyer in that matter. Current rules limit those prohibitions to include parties in the case.

Under the proposal, government lawyers, who have argued that the rule would curtail their ability to interview potential witnesses during an investigation, are exempt from the rule.

"That's what's become controversial," said John W. Amberg, a partner in the Los Angeles office of Bryan Cave and advisor to the State Bar of California's Committee on Professional Responsibility and Conduct, which is reviewing the proposed amendments. "What some of the criminal defense bar are saying is, 'Why are you creating an exemption for the prosecutors? Why can't they live by the same rules?'" Another amendment would exempt government lawyers from a rule that prohibits lawyers from threatening criminal, disciplinary or administrative action in an effort to obtain an advantage in a civil case. Government lawyers have contended that such a restriction would threaten their ability to plea bargain and negotiate settlements in civil cases, Amberg said.

The third rule would prohibit nonrefundable retainer agreements with clients.

Eliminating nonrefundable retainer agreements would increase the chance for conflicts of interest, particularly if lawyers are retained for a brief period, said Gary Lincenberg, president of the Los Angeles County Chapter of the Federal Bar Association and co-chairman of the American Bar Association's Southern California Regional White Collar Crime Committee and a partner at Bird, Marella, Boxer, Wolpert, Nessim, Drooks & Lincenberg.

"Why should I waste my time talking to somebody if there's not a minimum amount of work I'm going to get from this case?" he said.

The Rules Revision Committee of the State Bar of California began revising the rules about four years ago. Since 2006, the State Bar has proposed 32 amended rules. The State Bar's board of governors must adopt changes to the rules, which the California Supreme Court then must approve.

The deadline for public comment on the three controversial amendments, along with 10 others, is this Friday.

-- Amanda Bronstad

Full post as published by Legal Pad | LA on June 09, 2008 (boomark / email).