(h/t: KafkaEsq.)
California's current Rules Revision Commission (RRC) is operating under a charter that prioritizes the drafting of a minimal set of disciplinary rules. As our readers may recall, I have been very critical of that decision because the ABA Model Rules are so superior to a "minimal" approach. The Model Rules provide a broad, useful framework for the regulation of lawyer behavior and California should follow suit while preserving any unique aspects of California law.
The good news: the ABA's approach is making major inroads as the RRC proceeds rule by rule. At this page you can see the proposed amended rules and the proposed new rules. My sense is that when one compares particular ABA rules to the analogous current California rule, the ABA rule just looks better. For example, the rule on prosecutor conduct would be much longer, with many more important prohibitions and required conduct. Plus, we would finally have rules on the ethical duties of supervisors and subordinates, a rule on communicating with unrepresented persons, and so on. Let's hope the ABA approach continues to exert its gravitational pull on the RRC process.
One of the new proposed rules governs discrimination in law practice. The current California rule, 2-400, can only be used for discipline if the lawyer has been adjudicated to have committed an unlawful act of discrimination by some tribunal. Apparently the RRC is inclined to delete that provision, which currently reads:
No disciplinary investigation or proceeding may be initiated by the State Bar against a member under this rule unless and until a tribunal of competent jurisdiction, other than a disciplinary tribunal, shall have first adjudicated a complaint of alleged discrimination and found that unlawful conduct occurred. Upon such adjudication, the tribunal finding or verdict shall then be admissible evidence of the occurrence or non-occurrence of the alleged discrimination in any disciplinary proceeding initiated under this rule.
In addition, the State Bar's Council on Access and Fairness has suggested to the RRC that the rule be amended to include this broad, aspirational language. (Note: as I understand it, this language has not been considered or proposed yet by the RRC itself.)
In the management and operation of a law practice and in order to understand and properly protect and promote the public interest, members must engage in and promote a diverse and inclusive legal profession and practice. A diverse, inclusive and nondiscriminatory legal profession can be created and maintained through community engagement, strategic partnerships, education on access, fairness and the elimination of bias and by supporting a practice that reflects and is representative of the public and client community to be served.
What do our readers think of that language? Note that it doesn't say, "should promote," it says "must promote." What does that mean? Is that the kind of language that can and/or should be used for discipline? Is it a laudatory but aspirational provision? If the proposed rule is much broader in scope and potentially can be used for discipline in the first instance, what effects will it have on legal practice?
Btw, here is the draft language of the currently proposed rule 2-400:
(a) In the management or operation of a law practice, a lawyer shall not, on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived:
(1) unlawfully discriminate or knowingly permit unlawful discrimination;
(2) unlawfully harass or knowingly permit the harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract;
(3) refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment; or
(4) terminate or refuse to accept the representation of any client.
(b) For purposes of this rule:
(1) "knowingly permit" means a failure to advocate corrective action where the lawyer knows of a discriminatory policy or practice that results in the unlawful discrimination prohibited by paragraph (b); and
(2) "unlawfully" and "unlawful" shall be determined by reference to applicable state or federal statutes or decisions making unlawful discrimination in employment and in offering goods and services to the public.
[edited since original posting]