For those of you tracking the story, the two letters are must reading. Excerpt from the court's letter:
The second Commission should be directed to complete its work and submit all proposed rules for final consideration by the court no later than March 31, 20 17. In developing the charge for the second Commission, the drafters should be guided by the four policy considerations provided in the first Commission's Charter. The court strongly urges that the second Commission begin with the current CRPC and focus on revisions that are necessary to address developments in the law, and that eliminate, where possible, any unnecessary differences between California's rules and those used by a preponderance of the states. The second Commission should also be guided in its task by the principle that the CRPC's historical purpose is to regulate the professional conduct of members of the bar, and that as such, the proposed rules should remain a set of minimum disciplinary standards. While the second Commission may be guided by and refer to the American Bar Association's Model Rules of Professional Conduct when appropriate, it should avoid incorporating the purely aspirational or ethical considerations that are present in the Model Rules and Comments. Comments to the proposed rules should be used sparingly and only to elucidate and not to expand upon the rules themselves. California's Code of Judicial Ethics provides one model for the use of commentary in the adoption of a set of rules.
Is it just me, or do you find those dictates to be somewhat in tension with each other? That is, if you're guided by the ABA Model Rules you don't end up with a set of minimum disciplinary rules. And if your goal is to eliminate differences with the approach taken by the majority of other states, can you really just write a set of minimum disciplinary rules? If the current rule 1-100 already says that ethics opinions should be consulted and that lawyer may consult national standards (i.e., the Model Rules), and if our current set of rules is a minimal set, isn't it the case that California lawyers are frequently using the Model Rules to fill the many gaps in our rules? (Take a look at the Vapnek treatise and see how many times it cites the ABA sources because we have nothing clear in California.)