Professional Responsibility and California Legal Ethics

In 1908, the American Bar Association (ABA) promulgated the Canons of Professional Ethics.  The Canons were intended to guide attorneys in matters of ethical behavior. 

The Canons were succeeded in 1969 by the Model Code of Professional Responsibility.  The Model Code consists of canons, ethical considerations, and disciplinary rules.  The canons and ethical considerations are aspirational (what attorneys should do). The disciplinary rules are mandatory (what attorneys must do) and state the “minimum level of conduct below which no lawyer can fall without being subject to disciplinary action,” (see "Preliminary Statement," Model Code of Professional Responsibility (1983)). 

In 1983, the ABA replaced the code with the Model Rules of Professional Conduct, which it has since amended several times. The Rules set forth the duties of a lawyer.  The comment to the Rules states that “[v]iolation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached.  The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies.”  Since the ABA is a private organization, its ethics rules generally do not have the force of law and the Rules have no legal effect unless affirmatively adopted by the controlling jurisdiction.  

However, all states have adopted rules of professional conduct that follow the format of the ABA Model Rules. Attorneys who violate the disciplinary rules set forth in their jurisdiction are subject to discipline, which may consist of disbarment, suspension, or public or private reprimand. 

Ethics Opinions are issued by the ABA Standing Committee on Ethics and Professional Responsibility.  They construe the Model Rules of Professional Responsibility (prior to 1983, they construed the Model Code). They are not binding on any court or disciplinary body, but are considered highly persuasive authority.

Since 1922, the ABA Committee on Professional Ethics has issued formal and informal ethics opinions that interpret the Canons of Professional and Judicial Ethics, the Model Code of Professional Responsibility, and the Model Rules of Professional Conduct.  Formal Opinions are interpretations of the Rules that the Committee believes to be of general interest.  In Informal Opinions, the Committee addresses questions that are narrower in scope and arise less frequently.

The California Rules of Professional Conduct govern ethics and professional responsibility for California attorneys. Historically, the California Rules were independent of the ABA Model Rules but, in 2018, the California State Bar dramatically revised the California Rules to make them more consistent with the ABA Model Rules. The conduct of California attorneys is also governed by the California Constitution (art. VI, § 9); the State Bar Act (Cal. Bus. & Prof. Code §§ 6000 et seq.); state and local ethics opinions; and state and local rules of court. The conduct of California judges is governed by the California Code of Judicial Ethics. 

Created by the state legislature in 1927, the State Bar is a public corporation within the judicial branch of government, serving as an arm of the California Supreme Court. California has a unified, or integrated bar, which means bar membership is mandatory for all attorneys who are licensed to practice law in the state. For more information on the State Bar of California, please see The State Bar of California: Overview.

The California State Bar has the responsibility of regulating the practice of law in California, including admission to the bar and discipline of attorneys. The State Bar is also responsible for enforcing state laws regulating the unlawful practice of law and illegal solicitation of clients (see Cal. Bus. & Prof. Code §§ 6125-33, §§ 6150-56).

The disciplinary process in California consists of a series of investigations by the State Bar. If not resolved, the case is eventually forwarded to the State Bar Court, which decides all attorney discipline cases in California. Created in 1988, the State Bar Court is an arm of the California Supreme Court. Its decisions are subject to discretionary (non-mandatory) review by the California Supreme Court.

Ethics opinions are issued by California state and local bar associations to provide guidance on how the ethical rules might apply to theoretical fact situations but are not meant to be binding or dispositive of particular situations. The State Bar Committee on Professional Responsibility and Conduct, for example, is barred from issuing advisory opinions where a disciplinary action is pending, Formal Opinion 1965-1.