2
Paragraph (c) defines “firm” or “law firm” and is derived from ABA Model Rule 1.0(c). The
proposed rule includes a reference to a government organization. This addition emphasizes the
need to comply with the California principle that all lawyers are bound by the Rules of
Professional Conduct, including government lawyers.
4
The proposed rule substitutes “engaged
in” for “authorized to,” as stated in the Model Rule, to assure that the requirements of the rules
apply to everyone acting as a law firm even if not authorized to do so.
5
Paragraph (d) defines “fraud” or “fraudulent” and is nearly identical to ABA Model Rule 1.0(d).
The Commission believes it is appropriate that the components of fraud under paragraph (d) be
determined under the law of the applicable jurisdiction.
6
In addition, Comment [3], discussed
below, clarifies that neither damages nor reliance need to be proven because that would
frustrate the rule’s intent to prevent the fraud or avoid the lawyer providing assistance to the
defrauder.
Paragraph (e) provides a definition for “informed consent” and differs from ABA Model Rule
1.0(e) by, among other things, adding the term “relevant circumstances” and the phrase “actual
and reasonably foreseeable” to the required disclosure points for obtaining informed consent.
These terms are consistent with California policy and case law. (See, e.g., current rule
3-310(A)(1) and Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 429-31.)
Paragraph (e-1) defines “informed written consent” which has no counterpart in the Model
Rules. The definition is based on current rule 3-310(A)(2). Unlike the Model Rules, or the
jurisdictions that have largely adopted the Model Rules approach to consent, California has a
heightened standard that requires a client’s consent not only be informed, but also in writing.
This means that not only must the client’s consent be in writing but also that the disclosure be in
writing. California’s current approach to this standard is more client protective.
Paragraph (f) defines “knowingly,” “known,” or “knows” and is nearly identical to ABA Model
Rule 1.0(f).
Paragraph (g) defines “partner” and is nearly identical to ABA Model Rule 1.0(g).
Paragraph (g-1) defines “person” which has no counterpart in the Model Rule. The proposed
definition will eliminate potential confusion over whether the term “person” when used
throughout the rules includes an organization. Six other jurisdictions have adopted a definition
for the term “person.”
Paragraph (h) defines “reasonable” or “reasonably” and is identical to ABA Model Rule 1.0(h).
Paragraph (i) defines “reasonable belief” or “reasonably believes” and is identical to ABA Model
Rule 1.0(i).
Paragraph (j) defines “reasonably should know” and is identical to ABA Model Rule 1.0(j).
Paragraph (k) defines “screened” and modifies ABA Model Rule 1.0(k) primarily by adding the
clause “(ii) to protect against other law firm lawyers and non-lawyer personnel communicating
with the lawyer with respect to the matter.”
4
See, People ex rel. Deukmejian v. Brown (1981) 29 Cal.3d 150.
5
Maryland, Michigan, and South Carolina have similarly removed the phrase “authorized to.”
6
See, proposed rule 8.5(b), concerning choice of law.