2023 Rules of Professional Conduct

California

Rules of Professional Conduct

2023

TABLE OF CONTENTS

2023 i

RULES OF PROFESSIONAL CONDUCT

CROSS-REFERENCE TABLES

Current Rules to the “1992” Rules iii

“1992” Rules to the Current Rules vii

RULES OF PROFESSIONAL CONDUCT

Rule 1.0 Purpose and Function of the

Rules of Professional Conduct 1

Rule 1.0.1 Terminology 2

CHAPTER 1. LAWYER-CLIENT RELATIONSHIP

Rule 1.1 Competence 3

Rule 1.2 Scope of Representation and

Allocation of Authority 4

Rule 1.2.1 Advising or Assisting the Violation

of Law 5

Rule 1.3 Diligence 5

Rule 1.4 Communication with Clients 6

Rule 1.4.1 Communication of Settlement Offers 6

Rule 1.4.2 Disclosure of Professional Liability

Insurance 7

Rule 1.5 Fees for Legal Services 7

Rule 1.5.1 Fee Divisions Among Lawyers 8

Rule 1.6 Confidential Information of a Client 9

Rule 1.7 Conflict of Interest: Current Clients 13

Rule 1.8.1 Business Transactions with a Client

and Pecuniary Interests Adverse

to a Client 15

Rule 1.8.2 Use of Current Client’s Information 16

Rule 1.8.3 Gifts from Client 16

Rule 1.8.4 [Reserved] 17

Rule 1.8.5 Payment of Personal or Business

Expenses Incurred by or for a Client 17

Rule 1.8.6 Compensation from One Other

than Client 17

Rule 1.8.7 Aggregate Settlements 18

Rule 1.8.8 Limiting Liability to Client 18

Rule 1.8.9 Purchasing Property at a

Foreclosure or a Sale Subject to

Judicial Review 18

Rule 1.8.10 Sexual Relations with Current Client 19

Rule 1.8.11 Imputation of Prohibitions Under

Rules 1.8.1 to 1.8.9 19

Rule 1.9 Duties to Former Clients 19

Rule 1.10 Imputation of Conflicts of Interest:

General Rule 20

Rule 1.11 Special Conflicts of Interest for

Former and Current Government

Officials and Employees 21

Rule 1.12 Former Judge, Arbitrator,

Mediator, or Other Third-Party

Neutral 23

Rule 1.13 Organization as Client 24

Rule 1.14 [Reserved] 26

Rule 1.15 Safekeeping Funds and Property of

Clients and Other Persons* 26

Rule 1.16 Declining or Terminating

Representation 28

Rule 1.17 Sale of a Law Practice 30

Rule 1.18 Duties to Prospective Client 31

CHAPTER 2. COUNSELOR

Rule 2.1 Advisor 32

Rule 2.2 [Reserved] 33

Rule 2.3 [Reserved] 33

Rule 2.4 Lawyer as Third-Party Neutral 33

Rule 2.4.1 Lawyer as Temporary Judge,

Referee, or Court-Appointed

Arbitrator 33

CHAPTER 3. ADVOCATE

Rule 3.1 Meritorious Claims and Contentions 33

Rule 3.2 Delay of Litigation 34

Rule 3.3 Candor Toward the Tribunal* 34

Rule 3.4 Fairness to Opposing Party and

Counsel 35

TABLE OF CONTENTS

ii 2023

Rule 3.5 Contact with Judges, Officials,

Employees, and Jurors 36

Rule 3.6 Trial Publicity 37

Rule 3.7 Lawyer as Witness 38

Rule 3.8 Special Responsibilities of a

Prosecutor 39

Rule 3.9 Advocate in Nonadjudicative

Proceedings 40

Rule 3.10 Threatening Criminal, Administrative,

or Disciplinary Charges 41

CHAPTER 4. TRANSACTIONS WITH PERSONS*

OTHER THAN CLIENTS

Rule 4.1 Truthfulness in Statements to

Others 41

Rule 4.2 Communication with a Represented

Person* 42

Rule 4.3 Communicating with an

Unrepresented Person* 43

Rule 4.4 Duties Concerning Inadvertently

Transmitted Writings* 44

CHAPTER 5. LAW FIRMS* AND ASSOCIATIONS

Rule 5.1 Responsibilities of Managerial and

Supervisory Lawyers 44

Rule 5.2 Responsibilities of a Subordinate

Lawyer 45

Rule 5.3 Responsibilities Regarding

Nonlawyer Assistants 46

Rule 5.3.1 Employment of Disbarred, Suspended,

Resigned, or Involuntarily Inactive

Lawyer 46

Rule 5.4 Financial and Similar Arrangements

with Nonlawyers 47

Rule 5.5 Unauthorized Practice of Law;

Multijurisdictional Practice of Law 49

Rule 5.6 Restrictions on a Lawyer’s Right to

Practice 50

Rule 5.7 [Reserved] 50

CHAPTER 6. PUBLIC SERVICE

Rule 6.1 [Reserved] 50

Rule 6.2 [Reserved] 50

Rule 6.3 Membership in Legal Services

Organization 50

Rule 6.4 [Reserved] 50

Rule 6.5 Limited Legal Services Programs 50

CHAPTER 7. INFORMATION ABOUT LEGAL SERVICES

Rule 7.1 Communications Concerning a

Lawyer’s Services 51

Rule 7.2 Advertising 52

Rule 7.3 Solicitation of Clients 53

Rule 7.4 Communication of Fields of Practice

and Specialization 54

Rule 7.5 Firm* Names and Trade Names 54

Rule 7.6 [Reserved] 54

CHAPTER 8. MAINTAINING THE INTEGRITY OF THE

PROFESSION

Rule 8.1 False Statement Regarding

Application for Admission to

Practice Law 55

Rule 8.1.1 Compliance with Conditions of

Discipline and Agreements in Lieu

of Discipline 55

Rule 8.2 Judicial Officials 55

Rule 8.3 Reporting Professional Misconduct 56

Rule 8.4 Misconduct 57

Rule 8.4.1 Prohibited Discrimination,

Harassment and Retaliation 58

Rule 8.5 Disciplinary Authority; Choice of Law 60

RULES OF PROFESSIONAL CONDUCT

CROSS-REFERENCE CHART

2023 iii

Current Rules of Professional Conduct

Effective on November 1, 2018

(Rule Number and Title)

“1992” Rules of Professional Conduct

Effective until October 31, 2018

(Rule Number and Title)

1.0 Purpose and Function of the Rules of Professional

Conduct

1-100 Rules of Professional Conduct, in General

1.0.1 Terminology

1-100(B)

1.1 Competence

3-110 Failing to Act Competently

1.2 Scope of Representation and Allocation of Authority

No Former California Rule Counterpart

1.2.1 Advising or Assisting the Violation of Law

3-210 Advising the Violation of Law

1.3 Diligence

3-110(B)

1.4 Communication with Clients

3-500 Communication

1.4.1 Communication of Settlement Offers

3-510 Communication of Settlement Offer

1.4.2 Disclosure of Professional Liability Insurance

3-410 Disclosure of Professional Liability Insurance

1.5 Fees for Legal Services

4-200 Fees for Legal Services

1.5.1 Fee Divisions Among Lawyers

2-200 Financial Arrangements Among Lawyers

1.6 Confidential Information of a Client

3-100 Confidential Information of a Client

1.7 Conflict of Interest: Current Clients

3-310(B),(C) [Avoiding the Representation of Adverse

Interests]

3-320 Relationship With Other Party’s Lawyer

1.8.1 Business Transactions with a Client and Pecuniary

Interests Adverse to the Client

3-300 Avoiding Interests Adverse to a Client

1.8.2 Use of Current Client’s Information

No Former California Rule Counterpart

1.8.3 Gifts from Client

4-400 Gifts From Client

1.8.5 Payment of Personal or Business Expenses Incurred by

or for a Client

4-210 Payment of Personal or Business Expenses Incurred by

or for a Client

1.8.6 Compensation from One Other than Client

3-310(F)

1.8.7 Aggregate Settlements

3-310(D)

1.8.8 Limiting Liability to Client

3-400 Limiting Liability to Client

1.8.9 Purchasing Property at a Foreclosure or a Sale Subject to

Judicial Review

4-300 Purchasing Property at a Foreclosure or a Sale Subject

to Judicial Review

1.8.10 Sexual Relations with Current Client

3-120 Sexual Relations With Client

Rule 1.1, Comment [1] was added by order of the Supreme Court, effective March 22, 2021.

Rule 3-110(B) provides:

(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2)

learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance

of such service. (Emphasis added.)

Rule 1.4, Comment [1] was amended by order of the Supreme Court, effective January 1, 2023.

But see Cal. Bus. & Prof. Code § 6068(e)(1).

RULES OF PROFESSIONAL CONDUCT

CROSS-REFERENCE CHART

iv 2023

Current Rules of Professional Conduct

Effective on November 1, 2018

(Rule Number and Title)

“1992” Rules of Professional Conduct

Effective until October 31, 2018

(Rule Number and Title)

1.8.11 Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9 No Former California Rule Counterpart

1.9 Duties To Former Clients 3-310(E)

1.10 Imputation of Conflicts of Interest: General Rule No Former California Rule Counterpart

1.11 Special Conflicts of Interest for Former and Current

Government Officials and Employees

No Former California Rule Counterpart

1.12 Former Judge, Arbitrator, Mediator or Other Third-Party

Neutral

No Former California Rule Counterpart

1.13 Organization as Client 3-600 Organization as Client

1.14 [Reserved]

1.15 Safekeeping Funds and Property of Clients and Other

Persons

4-100 Preserving Identity of Funds and Property of a Client

1.16 Declining or Terminating Representation

3-700 Termination of Employment

1.17 Sale of a Law Practice 2-300 Sale or Purchase of a Law Practice of a Member, Living

or Deceased

1.18 Duties to Prospective Client No Former California Rule Counterpart

2.1 Advisor No Former California Rule Counterpart

2.2 [Reserved]

2.3 [Reserved]

2.4 Lawyer as Third-Party Neutral No Former California Rule Counterpart

2.4.1 Lawyer as Temporary Judge, Referee, or Court-

Appointed Arbitrator

1-710 Member as Temporary Judge, Referee, or Court-

Appointed Arbitrator

3.1 Meritorious Claims and Contentions 3-200 Prohibited Objectives of Employment

3.2 Delay of Litigation No Former California Rule Counterpart

3.3 Candor Toward the Tribunal 5-200(A)-(D) Trial Conduct

3.4 Fairness to Opposing Party and Counsel 5-200(E) [Trial Conduct]

5-220 Suppression of Evidence

(Note: Rule 5-220 was revised effective

May 1, 2017.)

5-310 Prohibited Contact With Witnesses

(Note: See also Rule 5-110 was revised effective November 2,

2017.)

3.5 Contact with Judges, Officials, Employees, and Jurors 5-300 Contact With Officials

5-320 Contact With Jurors

ABA Model Rule 1.14 (“Client With Diminished Capacity”) has not been adopted in California.

Rule 1.15 was amended by order of the Supreme Court, effective January 1, 2023.

Rule 1.16, Comment [5] was amended by order of the Supreme Court, effective June 1, 2020.

ABA Model Rule 2.2 was deleted and has not been adopted in California.

ABA Model Rule 2.3 (“Evaluation For Use By Third Persons”) has not been adopted in California.

RULES OF PROFESSIONAL CONDUCT

CROSS-REFERENCE CHART

2023 v

Current Rules of Professional Conduct

Effective on November 1, 2018

(Rule Number and Title)

“1992” Rules of Professional Conduct

Effective until October 31, 2018

(Rule Number and Title)

3.6 Trial Publicity 5-120 Trial Publicity

3.7 Lawyer as Witness 5-210 Member as Witness

3.8 Special Responsibilities of a Prosecutor

5-110 Special Responsibilities of a Prosecutor

(operative on May 1, 2017.)

5-110 Performing the Duty of Member in Government Service

(operative until April 30, 2017.)

3.9 Advocate in Non-adjudicative Proceedings No Former California Rule Counterpart

3.10 Threatening Criminal, Administrative, or Disciplinary

Charges

5-100 Threatening Criminal, Administrative, or Disciplinary

Charges

4.1 Truthfulness in Statements to Others No Former California Rule Counterpart

4.2 Communication with a Represented Person 2-100 Communication With a Represented Party

4.3 Communicating with an Unrepresented Person No Former California Rule Counterpart

4.4 Duties Concerning Inadvertently Transmitted Writings No Former California Rule Counterpart

5.1 Responsibilities of Managerial and Supervisory Lawyers No Former California Rule Counterpart

5.2 Responsibilities of a Subordinate Lawyer No Former California Rule Counterpart

5.3 Responsibilities Regarding Nonlawyer Assistants No Former California Rule Counterpart

5.3.1 Employment of Disbarred, Suspended, Resigned, or

Involuntarily Inactive Lawyer

1-311 Employment of Disbarred, Suspended, Resigned, or

Involuntarily Inactive Members

5.4 Financial and Similar Arrangements with Nonlawyers

1-310 Forming a Partnership With a Non-Lawyer

1-320 Financial Arrangements With Non-Lawyer

1-600 Legal Service Programs

5.5 Unauthorized Practice of Law; Multijurisdictional Practice

of Law

1-300 Unauthorized Practice of Law

5.6 Restrictions on a Lawyer’s Right to Practice 1-500 Agreements Restricting a Member's Practice

6.3 Membership in Legal Services Organizations No Former California Rule Counterpart

6.5 Limited Legal Services Programs 1-650 Limited Legal Service Programs

7.1 Communications Concerning a Lawyer’s Services 1-400 Advertising and Solicitation

7.2 Advertising 1-320(B)-(C) & (A)(4) [Financial Arrangements With Non-

Lawyer]

1-400 Advertising and Solicitation

2-200 Financial Arrangements Among Lawyers

7.3 Solicitation of Clients 1-400 Advertising and Solicitation

Rule 3.8, Comment [7] was amended by order of the Supreme Court, effective June 1, 2020.

But see rule 3-110, Discussion ¶. 1.

Rule 5.4 was amended by order of the Supreme Court, effective March 22, 2021.

RULES OF PROFESSIONAL CONDUCT

CROSS-REFERENCE CHART

vi 2023

Current Rules of Professional Conduct

Effective on November 1, 2018

(Rule Number and Title)

“1992” Rules of Professional Conduct

Effective until October 31, 2018

(Rule Number and Title)

7.4 Communication of Fields of Practice and Specialization 1-400 Advertising and Solicitation

7.5 Firm Names and Trade Names 1-400 Advertising and Solicitation

7.6 [Reserved]

8.1 False Statement Regarding Application for Admission to

Practice Law

1-200 False Statement Regarding Admission to the State Bar

8.1.1 Compliance with Conditions of Discipline and

Agreements in Lieu of Discipline

1-110 Disciplinary Authority of the State Bar

8.2 Judicial Officials 1-700 Member as Candidate for Judicial Office

8.3 Reporting Professional Misconduct

8.4 Misconduct 1-120 Assisting, Soliciting, or Inducing Violations

8.4.1 Prohibited Discrimination, Harassment and Retaliation 2-400 Prohibited Discriminatory Conduct in a Law Practice

8.5 Disciplinary Authority; Choice of Law 1-100(D) Rules of Professional Conduct, in General

ABA Model Rule 7.6 (“Political Contributions To Obtain Legal Engagements Or Appointments By Judges”) has not

been adopted in California.

Rule 8.3 was adopted by order of the Supreme Court, effective August 1, 2023.

RULES OF PROFESSIONAL CONDUCT

CROSS-REFERENCE CHART

2023 vii

“1992” Rules of Professional Conduct

Effective until October 31, 2018

(Rule Number and Title)

Current Rules of Professional Conduct

Effective on November 1, 2018

(Rule Number and Title)

1-100(A) [Rules of Professional Conduct, in General]

1.0 Purpose and Function of the Rules of Professional Conduct

1-100(B)

1.0.1 Terminology

1-100(D)

8.5 Disciplinary Authority; Choice of Law

1-110 Disciplinary Authority of the State Bar

8.1.1 Compliance with Conditions of Discipline and

Agreements in Lieu of Discipline

1-120 Assisting, Soliciting, or Inducing Violations

8.4 Misconduct

1-200 False Statement Regarding Admission to the State Bar

8.1 False Statement Regarding Application for Admission to

Practice Law

1-300 Unauthorized Practice of Law

5.5 Unauthorized Practice of Law; Multijurisdictional Practice

of Law

1-310 Forming a Partnership With a Non-Lawyer

5.4 Financial and Similar Arrangements with Nonlawyers

1-311 Employment of Disbarred, Suspended, Resigned, or

Involuntarily Inactive Members

5.3.1 Employment of Disbarred, Suspended, Resigned, or

Involuntarily Inactive Lawyer

1-320(A)

5.4 Financial and Similar Arrangements with Nonlawyers

1-320(A)(4) & (B)-(C) [Financial Arrangements With Non-

Lawyer]

7.2(b) Advertising

1-400 Advertising and Solicitation

7.1 Communications Concerning a Lawyer’s Services

7.2 Advertising

7.3 Solicitation of Clients

7.4 Communication of Fields of Practice and Specialization

7.5 Firm Names and Trade Names

1-500 Agreements Restricting a Member's Practice

5.6 Restrictions on a Lawyer’s Right to Practice

1-600 Legal Service Programs

5.4 Financial and Similar Arrangements with Nonlawyers

1-650 Limited Legal Service Programs

6.5 Limited Legal Services Programs

1-700 Member as Candidate for Judicial Office

8.2 Judicial Officials

1-710 Member as Temporary Judge, Referee, or Court-

Appointed Arbitrator

2.4.1 Lawyer as Temporary Judge, Referee, or Court-

Appointed Arbitrator

2-100 Communication With a Represented Party

4.2 Communication with a Represented Person

2-200(A) Financial Arrangements Among Lawyers

1.5.1 Fee Divisions Among Lawyers

2-200(B)

7.2(b) Advertising

2-300 Sale or Purchase of a Law Practice of a Member, Living or

Deceased

1.17 Sale of a Law Practice

2-400 Prohibited Discriminatory Conduct in a Law Practice

8.4.1 Prohibited Discrimination, Harassment and Retaliation

3-100 Confidential Information of a Client

1.6 Confidential Information of a Client

Rule 5.4 was amended by order of the Supreme Court, effective March 22, 2021.

RULES OF PROFESSIONAL CONDUCT

CROSS-REFERENCE CHART

viii 2023

“1992” Rules of Professional Conduct

Effective until October 31, 2018

(Rule Number and Title)

Current Rules of Professional Conduct

Effective on November 1, 2018

(Rule Number and Title)

3-110 Failing to Act Competently 1.1 Competence

3-110(B) 1.3 Diligence

3-110, Discussion ¶.1 Rule 5.1 Responsibilities of Managerial and Supervisory

Lawyers

Rule 5.2 Responsibilities of a Subordinate Lawyer

Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

3-120 Sexual Relations With Client 1.8.10 Sexual Relations with Current Client

3-200 Prohibited Objectives of Employment 3.1 Meritorious Claims and Contentions

3-210 Advising the Violation of Law 1.2.1 Advising or Assisting the Violation of Law

3-300 Avoiding Interests Adverse to a Client 1.8.1 Business Transactions with a Client and Pecuniary

Interests Adverse to the Client

3-310(B), (C) Avoiding the Representation of Adverse Interests 1.7 Conflict of Interest: Current Clients

3-310(D) 1.8.7 Aggregate Settlements

3-310(E) 1.9 Duties To Former Clients

3-310(F) 1.8.6 Compensation from One Other than Client

3-320 Relationship With Other Party’s Lawyer 1.7(c)(2) Conflict of Interest: Current Clients

3-400 Limiting Liability to Client 1.8.8 Limiting Liability to Client

3-410 Disclosure of Professional Liability Insurance 1.4.2 Disclosure of Professional Liability Insurance

3-500 Communication 1.4 Communication with Clients

3-510 Communication of Settlement Offer 1.4.1 Communication of Settlement Offers

3-600 Organization as Client 1.13 Organization as Client

3-700 Termination of Employment 1.16 Declining or Terminating Representation

4-100 Preserving Identity of Funds and Property of a Client 1.15 Safekeeping Funds and Property of Clients and Other

Persons

4-200 Fees for Legal Services 1.5 Fees for Legal Services

4-210 Payment of Personal or Business Expenses Incurred by or

for a Client

1.8.5 Payment of Personal or Business Expenses Incurred by or

for a Client

4-300 Purchasing Property at a Foreclosure or a Sale Subject to

Judicial Review

1.8.9 Purchasing Property at a Foreclosure or a Sale Subject to

Judicial Review

4-400 Gifts From Client 1.8.3 Gifts from Client

5-100 Threatening Criminal, Administrative, or Disciplinary

Charges

3.10 Threatening Criminal, Administrative, or Disciplinary

Charges

Rule 1.1, Comment [1] was added by order of the Supreme Court, effective March 22, 2021.

Rule 1.4, Comment [1] was amended by order of the Supreme Court, effective January 1, 2023.

Rule 1.16, Comment [5] was amended by order of the Supreme Court, effective June 1, 2020.

Rule 1.15 was amended by order of the Supreme Court, effective January 1, 2023.

RULES OF PROFESSIONAL CONDUCT

CROSS-REFERENCE CHART

2023 ix

“1992” Rules of Professional Conduct

Effective until October 31, 2018

(Rule Number and Title)

Current Rules of Professional Conduct

Effective on November 1, 2018

(Rule Number and Title)

5-110 Special Responsibilities of a Prosecutor

(operative on May 1, 2017.)

5-110 Performing the Duty of Member in Government Service

(operative until April 30, 2017.)

3.8 Special Responsibilities of a Prosecutor

5-120 Trial Publicity 3.6 Trial Publicity

5-200(A)-(D) Trial Conduct 3.3 Candor Toward the Tribunal

5-200(E) Trial Conduct 3.4 Fairness to Opposing Party and Counsel

5-210 Member as Witness 3.7 Lawyer as Witness

5-220 Suppression of Evidence

(Note: Rule 5-220 was revised effective May 1, 2017.)

3.4 Fairness to Opposing Party and Counsel

(Note: See also Rule 3.8(d) regarding the duties of a

prosecutor.)

5-300 Contact With Officials 3.5 Contact with Judges, Officials, Employees, and Jurors

5-310 Prohibited Contact With Witnesses 3.4 Fairness to Opposing Party and Counsel

5-320 Contact With Jurors 3.5 Contact with Judges, Officials, Employees, and Jurors

Current Rules With No Former California Rule Counterpart

Rule 1.2 Scope of Representation and Allocation of Authority

Rule 1.8.2 Use of Current Client’s Information

Rule 1.8.11 Imputation of Prohibitions Under Rules 1.8.1 to 1.8.9

Rule 1.10 Imputation of Conflicts of Interest: General Rule

Rule 1.11 Special Conflicts of Interest for Former and Current Government Officials and Employees

Rule 1.12 Former Judge, Arbitrator, Mediator or Other Third-Party Neutral

Rule 1.18 Duties to Prospective Client

Rule 2.1 Advisor

Rule 2.4 Lawyer as Third-Party Neutral

Rule 3.2 Delay of Litigation

Rule 3.9 Advocate in Non-adjudicative Proceedings

Rule 4.1 Truthfulness in Statements to Others

Rule 4.3 Communicating with an Unrepresented Person

Rule 4.4 Duties Concerning Inadvertently Transmitted Writings

Rule 5.3 Responsibilities Regarding Nonlawyer Assistants

Rule 6.3 Membership in Legal Services Organizations

Rule 8.3 Reporting Professional Misconduct

Rule 3.8, Comment [7] was amended by order of the Supreme Court, effective June 1, 2020.

But see Bus. & Prof. Code § 6068(e).

But see current rule 3-600(D) regarding similar duties in an organizational context.

x 2023

RULES OF PROFESSIONAL CONDUCT

2023 CURRENT RULES 1

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

(On May 10, 2018, the California Supreme Court

issued an order approving new Rules of Professional

Conduct, which are effective on November 1, 2018 On

September 26, 2018, the Court issued an order

approving non-substantive clean-up revisions to the

rules. These revisions are effective on the same date.)

Rule 1.0 Purpose and Function of the Rules of

Professional Conduct

(a) Purpose.

The following rules are intended to regulate

professional conduct of lawyers through discipline.

They have been adopted by the Board of Trustees of

the State Bar of California and approved by the

Supreme Court of California pursuant to Business and

Professions Code sections 6076 and 6077 to protect

the public, the courts, and the legal profession;

protect the integrity of the legal system; and promote

the administration of justice and confidence in the

legal profession. These rules together with any

standards adopted by the Board of Trustees pursuant

to these rules shall be binding upon all lawyers.

(b) Function.

(1) A willful violation of any of these rules is a

basis for discipline.

(2) The prohibition of certain conduct in these

rules is not exclusive. Lawyers are also bound by

applicable law including the State Bar Act (Bus. &

Prof. Code, § 6000 et seq.) and opinions of

California courts.

(3) A violation of a rule does not itself give rise

to a cause of action for damages caused by

failure to comply with the rule. Nothing in these

rules or the Comments to the rules is intended

to enlarge or to restrict the law regarding the

liability of lawyers to others.

The comments are not a basis for imposing discipline

but are intended only to provide guidance for

interpreting and practicing in compliance with the

rules.

(d) These rules may be cited and referred to as the

“California Rules of Professional Conduct.”

Comment

[1] The Rules of Professional Conduct are intended

to establish the standards for lawyers for purposes of

discipline. (See Ames v. State Bar (1973) 8 Cal.3d 910,

917 [106 Cal.Rptr. 489].) Therefore, failure to comply

with an obligation or prohibition imposed by a rule is

a basis for invoking the disciplinary process. Because

the rules are not designed to be a basis for civil

liability, a violation of a rule does not itself give rise to

a cause of action for enforcement of a rule or for

damages caused by failure to comply with the rule.

(Stanley v. Richmond (1995) 35 Cal.App.4th 1070,

1097 [41 Cal.Rptr.2d 768].) Nevertheless, a lawyer’s

violation of a rule may be evidence of breach of a

lawyer’s fiduciary or other substantive legal duty in a

non-disciplinary context. (Ibid.; see also Mirabito v.

Liccardo (1992) 4 Cal.App.4th 41, 44 [5 Cal.Rptr.2d

571].) A violation of a rule may have other non-

disciplinary consequences. (See, e.g., Fletcher v. Davis

(2004) 33 Cal.4th 61, 71-72 [14 Cal.Rptr.3d 58]

[enforcement of attorney’s lien]; Chambers v. Kay

(2002) 29 Cal.4th 142, 161 [126 Cal.Rptr.2d 536]

[enforcement of fee sharing agreement].)

[2] While the rules are intended to regulate

professional conduct of lawyers, a violation of a rule

can occur when a lawyer is not practicing law or

acting in a professional capacity.

[3] A willful violation of a rule does not require that

the lawyer intend to violate the rule. (Phillips v. State

Bar (1989) 49 Cal.3d 944, 952 [264 Cal.Rptr. 346]; and

see Bus. & Prof. Code, § 6077.)

[4] In addition to the authorities identified in

paragraph (b)(2), opinions of ethics committees in

California, although not binding, should be consulted

for guidance on proper professional conduct. Ethics

opinions and rules and standards promulgated by

other jurisdictions and bar associations may also be

considered.

[5] The disciplinary standards created by these rules

are not intended to address all aspects of a lawyer’s

professional obligations. A lawyer, as a member of

the legal profession, is a representative and advisor of

clients, an officer of the legal system and a public

citizen having special responsibilities for the quality of

justice. A lawyer should be aware of deficiencies in

the administration of justice and of the fact that the

poor, and sometimes persons* who are not poor

cannot afford adequate legal assistance. Therefore,

RULES OF PROFESSIONAL CONDUCT

2 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

all lawyers are encouraged to devote professional

time and resources and use civic influence to ensure

equal access to the system of justice for those who

because of economic or social barriers cannot afford

or secure adequate legal counsel. In meeting this

responsibility of the profession, every lawyer should

aspire to render at least fifty hours of pro bono

publico legal services per year. The lawyer should aim

to provide a substantial* majority of such hours to

indigent individuals or to nonprofit organizations with

a primary purpose of providing services to the poor or

on behalf of the poor or disadvantaged. Lawyers may

also provide financial support to organizations

providing free legal services. (See Bus. & Prof. Code,

§ 6073.)

Rule 1.0.1 Terminology

(a) “Belief” or “believes” means that the person*

involved actually supposes the fact in question to be

true. A person’s* belief may be inferred from

circumstances.

(b) [Reserved]

professional law corporation; a lawyer acting as a sole

proprietorship; an association authorized to practice

law; or lawyers employed in a legal services

organization or in the legal department, division or

office of a corporation, of a government organization,

or of another organization.

(d) “Fraud” or “fraudulent” means conduct that is

fraudulent under the law of the applicable jurisdiction

and has a purpose to deceive.

(e) “Informed consent” means a person’s*

agreement to a proposed course of conduct after the

lawyer has communicated and explained (i) the

relevant circumstances and (ii) the material risks,

including any actual and reasonably* foreseeable

adverse consequences of the proposed course of

conduct.

(e-1) “Informed written consent” means that the

disclosures and the consent required by paragraph (e)

must be in writing.*

(f) “Knowingly,” “known,” or “knows” means actual

knowledge of the fact in question. A person’s*

knowledge may be inferred from circumstances.

(g) “Partner” means a member of a partnership, a

shareholder in a law firm* organized as a professional

corporation, or a member of an association

authorized to practice law.

(g-1) “Person” has the meaning stated in Evidence

Code section 175.

(h) “Reasonable” or “reasonably” when used in

relation to conduct by a lawyer means the conduct of

a reasonably prudent and competent lawyer.

(i) “Reasonable belief” or “reasonably believes”

when used in reference to a lawyer means that the

lawyer believes the matter in question and that the

circumstances are such that the belief is reasonable.

(j) “Reasonably should know” when used in

reference to a lawyer means that a lawyer of

reasonable prudence and competence would

ascertain the matter in question.

(k) “Screened” means the isolation of a lawyer from

any participation in a matter, including the timely

imposition of procedures within a law firm* that are

adequate under the circumstances (i) to protect

information that the isolated lawyer is obligated to

protect under these rules or other law; and (ii) to

protect against other law firm* lawyers and

nonlawyer personnel communicating with the lawyer

with respect to the matter.

(l) “Substantial” when used in reference to degree

or extent means a material matter of clear and

weighty importance.

(m) “Tribunal” means: (i) a court, an arbitrator, an

administrative law judge, or an administrative body

acting in an adjudicative capacity and authorized to

make a decision that can be binding on the parties

involved; or (ii) a special master or other person* to

whom a court refers one or more issues and whose

decision or recommendation can be binding on the

parties if approved by the court.

(n) “Writing” or “written” has the meaning stated in

Evidence Code section 250. A “signed” writing

includes an electronic sound, symbol, or process

attached to or logically associated with a writing and

executed, inserted, or adopted by or at the direction

of a person* with the intent to sign the writing.

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2023 CURRENT RULES 3

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Comment

Firm* or Law Firm*

[1] Practitioners who share office space and

occasionally consult or assist each other ordinarily

would not be regarded as constituting a law firm.*

However, if they present themselves to the public in a

way that suggests that they are a law firm* or conduct

themselves as a law firm,* they may be regarded as a

law firm* for purposes of these rules. The terms of

any formal agreement between associated lawyers

are relevant in determining whether they are a firm,*

as is the fact that they have mutual access to

information concerning the clients they serve.

[2] The term “of counsel” implies that the lawyer so

designated has a relationship with the law firm,*

other than as a partner* or associate, or officer or

shareholder, that is close, personal, continuous, and

regular. Whether a lawyer who is denominated as “of

counsel” or by a similar term should be deemed a

member of a law firm* for purposes of these rules will

also depend on the specific facts. (Compare People ex

rel. Department of Corporations v. Speedee Oil Change

Systems, Inc. (1999) 20 Cal.4th 1135 [86 Cal.Rptr.2d

816] with Chambers v. Kay (2002) 29 Cal.4th 142 [126

Cal.Rptr.2d 536].)

Fraud*

[3] When the terms “fraud”* or “fraudulent”* are

used in these rules, it is not necessary that anyone has

suffered damages or relied on the misrepresentation

or failure to inform because requiring the proof of

those elements of fraud* would impede the purpose

of certain rules to prevent fraud* or avoid a lawyer

assisting in the perpetration of a fraud,* or otherwise

frustrate the imposition of discipline on lawyers who

engage in fraudulent* conduct. The term “fraud”* or

“fraudulent”* when used in these rules does not

include merely negligent misrepresentation or

negligent failure to apprise another of relevant

information.

Informed Consent* and Informed Written Consent*

[4] The communication necessary to obtain

informed consent* or informed written consent* will

vary according to the rule involved and the

circumstances giving rise to the need to obtain

consent.

Screened*

[5] The purpose of screening* is to assure the

affected client, former client, or prospective client

that confidential information known* by the

personally prohibited lawyer is neither disclosed to

other law firm* lawyers or nonlawyer personnel nor

used to the detriment of the person* to whom the

duty of confidentiality is owed. The personally

prohibited lawyer shall acknowledge the obligation

not to communicate with any of the other lawyers

and nonlawyer personnel in the law firm* with

respect to the matter. Similarly, other lawyers and

nonlawyer personnel in the law firm* who are

working on the matter promptly shall be informed

that the screening* is in place and that they may not

communicate with the personally prohibited lawyer

with respect to the matter. Additional screening*

measures that are appropriate for the particular

matter will depend on the circumstances. To

implement, reinforce and remind all affected law

firm* personnel of the presence of the screening,* it

may be appropriate for the law firm* to undertake

such procedures as a written* undertaking by the

personally prohibited lawyer to avoid any

communication with other law firm* personnel and

any contact with any law firm* files or other materials

relating to the matter, written* notice and

instructions to all other law firm* personnel

forbidding any communication with the personally

prohibited lawyer relating to the matter, denial of

access by that lawyer to law firm* files or other

materials relating to the matter, and periodic

reminders of the screen* to the personally prohibited

lawyer and all other law firm* personnel.

[6] In order to be effective, screening* measures

must be implemented as soon as practical after a

lawyer or law firm* knows* or reasonably should

know* that there is a need for screening.*

CHAPTER 1.

LAWYER-CLIENT RELATIONSHIP

Rule 1.1 Competence

(a) A lawyer shall not intentionally, recklessly, with

gross negligence, or repeatedly fail to perform legal

services with competence.

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(b) For purposes of this rule, “competence” in any

legal service shall mean to apply the (i) learning and

skill, and (ii) mental, emotional, and physical ability

reasonably* necessary for the performance of such

service.

skill when the legal services are undertaken, the

lawyer nonetheless may provide competent

representation by (i) associating with or, where

appropriate, professionally consulting another lawyer

whom the lawyer reasonably believes* to be

competent, (ii) acquiring sufficient learning and skill

before performance is required, or (iii) referring the

matter to another lawyer whom the lawyer

reasonably believes* to be competent.

(d) In an emergency a lawyer may give advice or

assistance in a matter in which the lawyer does not

have the skill ordinarily required if referral to, or

association or consultation with, another lawyer

would be impractical. Assistance in an emergency

must be limited to that reasonably* necessary in the

circumstances.

Comment

[1] The duties set forth in this rule include the duty

to keep abreast of the changes in the law and its

practice, including the benefits and risks associated

with relevant technology.

[2] This rule addresses only a lawyer’s responsibility

for his or her own professional competence. See rules

5.1 and 5.3 with respect to a lawyer’s disciplinary

responsibility for supervising subordinate lawyers and

nonlawyers.

[3] See rule 1.3 with respect to a lawyer’s duty to

act with reasonable* diligence.

[Publisher’s Note: Comment [1] was added by order

of the Supreme Court, effective March 22, 2021.]

Rule 1.2 Scope of Representation and

Allocation of Authority

(a) Subject to rule 1.2.1, a lawyer shall abide by a

client’s decisions concerning the objectives of

representation and, as required by rule 1.4, shall

reasonably* consult with the client as to the means by

which they are to be pursued. Subject to Business

and Professions Code section 6068, subdivision (e)(1)

and rule 1.6, a lawyer may take such action on behalf

of the client as is impliedly authorized to carry out the

representation. A lawyer shall abide by a client’s

decision whether to settle a matter. Except as

otherwise provided by law in a criminal case, the

lawyer shall abide by the client’s decision, after

consultation with the lawyer, as to a plea to be

entered, whether to waive jury trial and whether the

client will testify.

(b) A lawyer may limit the scope of the

representation if the limitation is reasonable* under

the circumstances, is not otherwise prohibited by law,

and the client gives informed consent.*

Comment

Allocation of Authority between Client and Lawyer

[1] Paragraph (a) confers upon the client the ultimate

authority to determine the purposes to be served by

legal representation, within the limits imposed by law

and the lawyer’s professional obligations. (See, e.g.,

Cal. Const., art. I, § 16; Pen. Code, § 1018.) A lawyer

retained to represent a client is authorized to act on

behalf of the client, such as in procedural matters and

in making certain tactical decisions. A lawyer is not

authorized merely by virtue of the lawyer’s retention to

impair the client’s substantive rights or the client’s

claim itself. (Blanton v. Womancare, Inc. (1985) 38

Cal.3d 396, 404 [212 Cal.Rptr. 151, 156].)

[2] At the outset of, or during a representation, the

client may authorize the lawyer to take specific action

on the client’s behalf without further consultation.

Absent a material change in circumstances and

subject to rule 1.4, a lawyer may rely on such an

advance authorization. The client may revoke such

authority at any time.

Independence from Client’s Views or Activities

[3] A lawyer’s representation of a client, including

representation by appointment, does not constitute

an endorsement of the client’s political, economic,

social or moral views or activities.

Agreements Limiting Scope of Representation

[4] All agreements concerning a lawyer’s

representation of a client must accord with the Rules

of Professional Conduct and other law. (See, e.g.,

rules 1.1, 1.8.1, 5.6; see also Cal. Rules of Court, rules

3.35-3.37 [limited scope rules applicable in civil

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An asterisk (*) identifies a word or phrase defined in rule 1.0.1

matters generally], 5.425 [limited scope rule

applicable in family law matters].)

Rule 1.2.1 Advising or Assisting the Violation of

Law

(a) A lawyer shall not counsel a client to engage, or

assist a client in conduct that the lawyer knows* is

criminal, fraudulent,* or a violation of any law, rule, or

ruling of a tribunal.*

(b) Notwithstanding paragraph (a), a lawyer may:

(1) discuss the legal consequences of any

proposed course of conduct with a client; and

(2) counsel or assist a client to make a good

faith effort to determine the validity, scope,

meaning, or application of a law, rule, or ruling

of a tribunal.*

Comment

[1] There is a critical distinction under this rule

between presenting an analysis of legal aspects of

questionable conduct and recommending the means

by which a crime or fraud* might be committed with

impunity. The fact that a client uses a lawyer’s advice

in a course of action that is criminal or fraudulent*

does not of itself make a lawyer a party to the course

of action.

[2] Paragraphs (a) and (b) apply whether or not the

client’s conduct has already begun and is continuing.

In complying with this rule, a lawyer shall not violate

the lawyer’s duty under Business and Professions

Code section 6068, subdivision (a) to uphold the

Constitution and laws of the United States and

California or the duty of confidentiality as provided in

Business and Professions Code section 6068,

subdivision (e)(1) and rule 1.6. In some cases, the

lawyer’s response is limited to the lawyer’s right and,

where appropriate, duty to resign or withdraw in

accordance with rules 1.13 and 1.16.

[3] Paragraph (b) authorizes a lawyer to advise a

client in good faith regarding the validity, scope,

meaning or application of a law, rule, or ruling of a

tribunal* or of the meaning placed upon it by

governmental authorities, and of potential

consequences to disobedience of the law, rule, or

ruling of a tribunal* that the lawyer concludes in good

faith to be invalid, as well as legal procedures that

may be invoked to obtain a determination of

invalidity.

[4] Paragraph (b) also authorizes a lawyer to advise a

client on the consequences of violating a law, rule, or

ruling of a tribunal* that the client does not contend is

unenforceable or unjust in itself, as a means of

protesting a law or policy the client finds objectionable.

For example, a lawyer may properly advise a client

about the consequences of blocking the entrance to a

public building as a means of protesting a law or policy

the client believes* to be unjust or invalid.

[5] If a lawyer comes to know* or reasonably should

know* that a client expects assistance not permitted

by these rules or other law or if the lawyer intends to

act contrary to the client’s instructions, the lawyer

must advise the client regarding the limitations on the

lawyer’s conduct. (See rule 1.4(a)(4).)

[6] Paragraph (b) permits a lawyer to advise a client

regarding the validity, scope, and meaning of

California laws that might conflict with federal or

tribal law. In the event of such a conflict, the lawyer

may assist a client in drafting or administering, or

interpreting or complying with, California laws,

including statutes, regulations, orders, and other state

or local provisions, even if the client’s actions might

violate the conflicting federal or tribal law. If California

law conflicts with federal or tribal law, the lawyer

must inform the client about related federal or tribal

law and policy and under certain circumstances may

also be required to provide legal advice to the client

regarding the conflict (see rules 1.1 and 1.4).

Rule 1.3 Diligence

(a) A lawyer shall not intentionally, repeatedly,

recklessly or with gross negligence fail to act with

reasonable diligence in representing a client.

(b) For purposes of this rule, “reasonable diligence”

shall mean that a lawyer acts with commitment and

dedication to the interests of the client and does not

neglect or disregard, or unduly delay a legal matter

entrusted to the lawyer.

Comment

[1] This rule addresses only a lawyer’s responsibility

for his or her own professional diligence. See rules

5.1 and 5.3 with respect to a lawyer’s disciplinary

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responsibility for supervising subordinate lawyers and

nonlawyers.

[2] See rule 1.1 with respect to a lawyer’s duty to

perform legal services with competence.

Rule 1.4 Communication with Clients

(a) A lawyer shall:

(1) promptly inform the client of any decision

or circumstance with respect to which disclosure

or the client’s informed consent* is required by

these rules or the State Bar Act;

(2) reasonably* consult with the client about

the means by which to accomplish the client’s

objectives in the representation;

(3) keep the client reasonably* informed

about significant developments relating to the

representation, including promptly complying

with reasonable* requests for information and

copies of significant documents when necessary

to keep the client so informed; and

(4) advise the client about any relevant

limitation on the lawyer’s conduct when the

lawyer knows* that the client expects assistance

not permitted by the Rules of Professional

Conduct or other law.

(b) A lawyer shall explain a matter to the extent

reasonably* necessary to permit the client to make

informed decisions regarding the representation.

to a client if the lawyer reasonably believes* that the

client would be likely to react in a way that may cause

imminent harm to the client or others.

(d) A lawyer’s obligation under this rule to provide

information and documents is subject to any

applicable protective order, non-disclosure agreement,

or limitation under statutory or decisional law.

Comment

[1] A lawyer will not be subject to discipline under

paragraph (a)(3) of this rule for failing to

communicate insignificant or irrelevant information.

(See Bus. & Prof. Code, § 6068, subd. (m).) Whether a

particular development is significant will generally

depend on the surrounding facts and circumstances.

For example, a lawyer’s receipt of funds on behalf of a

client requires communication with the client

pursuant to rule 1.15, paragraphs (d)(1) and (d)(4) and

ordinarily is also a significant development requiring

communication with the client pursuant to this rule.

[2] A lawyer may comply with paragraph (a)(3) by

providing to the client copies of significant documents

by electronic or other means. This rule does not

prohibit a lawyer from seeking recovery of the

lawyer’s expense in any subsequent legal proceeding.

For example, a lawyer’s receipt of funds on behalf of a

client requires communication with the client

pursuant to rule 1.15, paragraphs (d)(1) and (d)(4) and

ordinarily is also a significant development requiring

communication with the client pursuant to this rule.

[3] Paragraph (c) applies during a representation

and does not alter the obligations applicable at

termination of a representation. (See rule 1.16(e)(1).)

[4] This rule is not intended to create, augment,

diminish, or eliminate any application of the work

product rule. The obligation of the lawyer to provide

work product to the client shall be governed by

relevant statutory and decisional law.

[Publisher’s Note: Comment [1] was amended by order

of the Supreme Court, effective January 1, 2023.]

Rule 1.4.1 Communication of Settlement Offers

(a) A lawyer shall promptly communicate to the

lawyer’s client:

(1) all terms and conditions of a proposed plea

bargain or other dispositive offer made to the

client in a criminal matter; and

(2) all amounts, terms, and conditions of any

written* offer of settlement made to the client

in all other matters.

(b) As used in this rule, “client” includes a person*

who possesses the authority to accept an offer of

settlement or plea, or, in a class action, all the named

representatives of the class.

Comment

An oral offer of settlement made to the client in a civil

matter must also be communicated if it is a

“significant development” under rule 1.4.

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2023 CURRENT RULES 7

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Rule 1.4.2 Disclosure of Professional Liability

Insurance

(a) A lawyer who knows* or reasonably should

know* that the lawyer does not have professional

liability insurance shall inform a client in writing,* at

the time of the client’s engagement of the lawyer,

that the lawyer does not have professional liability

insurance.

(b) If notice under paragraph (a) has not been

provided at the time of a client’s engagement of the

lawyer, the lawyer shall inform the client in writing*

within thirty days of the date the lawyer knows* or

reasonably should know* that the lawyer no longer

has professional liability insurance during the

representation of the client.

(1) a lawyer who knows* or reasonably should

know* at the time of the client’s engagement of

the lawyer that the lawyer’s legal representation

of the client in the matter will not exceed four

hours; provided that if the representation

subsequently exceeds four hours, the lawyer

must comply with paragraphs (a) and (b);

(2) a lawyer who is employed as a government

lawyer or in-house counsel when that lawyer is

representing or providing legal advice to a client

in that capacity;

(3) a lawyer who is rendering legal services in

an emergency to avoid foreseeable prejudice to

the rights or interests of the client;

(4) a lawyer who has previously advised the

client in writing* under paragraph (a) or (b) that

the lawyer does not have professional liability

insurance.

Comment

[1] The disclosure obligation imposed by paragraph

(a) applies with respect to new clients and new

engagements with returning clients.

[2] A lawyer may use the following language in

making the disclosure required by paragraph (a), and

may include that language in a written* fee

agreement with the client or in a separate writing:

“Pursuant to rule 1.4.2 of the California

Rules of Professional Conduct, I am

informing you in writing that I do not have

professional liability insurance.”

[3] A lawyer may use the following language in

making the disclosure required by paragraph (b):

“Pursuant to rule 1.4.2 of the California

Rules of Professional Conduct, I am

informing you in writing that I no longer

have professional liability insurance.”

[4] The exception in paragraph (c)(2) for

government lawyers and in-house counsels is limited

to situations involving direct employment and

representation, and does not, for example, apply to

outside counsel for a private or governmental entity,

or to counsel retained by an insurer to represent an

insured. If a lawyer is employed by and provides legal

services directly for a private entity or a federal, state

or local governmental entity, that entity is presumed

to know* whether the lawyer is or is not covered by

professional liability insurance.

Rule 1.5 Fees for Legal Services

(a) A lawyer shall not make an agreement for,

charge, or collect an unconscionable or illegal fee.

(b) Unconscionability of a fee shall be determined

on the basis of all the facts and circumstances existing

at the time the agreement is entered into except

where the parties contemplate that the fee will be

affected by later events. The factors to be considered

in determining the unconscionability of a fee include

without limitation the following:

(1) whether the lawyer engaged in fraud* or

overreaching in negotiating or setting the fee;

(2) whether the lawyer has failed to disclose

material facts;

(3) the amount of the fee in proportion to the

value of the services performed;

(4) the relative sophistication of the lawyer

and the client;

(5) the novelty and difficulty of the questions

involved, and the skill requisite to perform the

legal service properly;

(6) the likelihood, if apparent to the client,

that the acceptance of the particular

employment will preclude other employment by

the lawyer;

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An asterisk (*) identifies a word or phrase defined in rule 1.0.1

(7) the amount involved and the results

obtained;

(8) the time limitations imposed by the client

or by the circumstances;

(9) the nature and length of the professional

relationship with the client;

(10) the experience, reputation, and ability of

the lawyer or lawyers performing the services;

(11) whether the fee is fixed or contingent;

(12) the time and labor required; and

(13) whether the client gave informed consent*

to the fee.

charge, or collect:

(1) any fee in a family law matter, the

payment or amount of which is contingent upon

the securing of a dissolution or declaration of

nullity of a marriage or upon the amount of

spousal or child support, or property settlement

in lieu thereof; or

(2) a contingent fee for representing a

defendant in a criminal case.

(d) A lawyer may make an agreement for, charge, or

collect a fee that is denominated as “earned on

receipt” or “non-refundable,” or in similar terms, only

if the fee is a true retainer and the client agrees in

writing* after disclosure that the client will not be

entitled to a refund of all or part of the fee charged. A

true retainer is a fee that a client pays to a lawyer to

ensure the lawyer’s availability to the client during a

specified period or on a specified matter, but not to

any extent as compensation for legal services

performed or to be performed.

(e) A lawyer may make an agreement for, charge, or

collect a flat fee for specified legal services. A flat fee

is a fixed amount that constitutes complete payment

for the performance of described services regardless

of the amount of work ultimately involved, and which

may be paid in whole or in part in advance of the

lawyer providing those services.

Comment

Prohibited Contingent Fees

[1] Paragraph (c)(1) does not preclude a contract for

a contingent fee for legal representation in

connection with the recovery of post-judgment

balances due under child or spousal support or other

financial orders.

Payment of Fees in Advance of Services

[2] Rule 1.15(a) and (b) govern whether a lawyer

must deposit in a trust account a fee paid in advance.

[3] When a lawyer-client relationship terminates,

the lawyer must refund the unearned portion of a fee.

(See rule 1.16(e)(2).)

Division of Fee

[4] A division of fees among lawyers is governed by

rule 1.5.1.

Written* Fee Agreements

[5] Some fee agreements must be in writing* to be

enforceable. (See, e.g., Bus. & Prof. Code, §§ 6147

and 6148.)

Rule 1.5.1 Fee Divisions Among Lawyers

(a) Lawyers who are not in the same law firm* shall

not divide a fee for legal services unless:

(1) the lawyers enter into a written*

agreement to divide the fee;

(2) the client has consented in writing,* either

at the time the lawyers enter into the

agreement to divide the fee or as soon

thereafter as reasonably* practicable, after a full

written* disclosure to the client of: (i) the fact

that a division of fees will be made; (ii) the

identity of the lawyers or law firms* that are

parties to the division; and (iii) the terms of the

division; and

(3) the total fee charged by all lawyers is not

increased solely by reason of the agreement to

divide fees.

(b) This rule does not apply to a division of fees

pursuant to court order.

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2023 CURRENT RULES 9

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Comment

The writing* requirements of paragraphs (a)(1) and

(a)(2) may be satisfied by one or more writings.*

Rule 1.6 Confidential Information of a Client

(a) A lawyer shall not reveal information protected

from disclosure by Business and Professions Code

section 6068, subdivision (e)(1) unless the client gives

informed consent,* or the disclosure is permitted by

paragraph (b) of this rule.

(b) A lawyer may, but is not required to, reveal

information protected by Business and Professions

Code section 6068, subdivision (e)(1) to the extent

that the lawyer reasonably believes* the disclosure is

necessary to prevent a criminal act that the lawyer

reasonably believes* is likely to result in death of, or

substantial* bodily harm to, an individual, as provided

in paragraph (c).

Business and Professions Code section 6068,

subdivision (e)(1) to prevent a criminal act as provided

in paragraph (b), a lawyer shall, if reasonable* under

the circumstances:

(1) make a good faith effort to persuade the

client: (i) not to commit or to continue the

criminal act; or (ii) to pursue a course of conduct

that will prevent the threatened death or

substantial* bodily harm; or do both (i) and (ii);

and

(2) inform the client, at an appropriate time,

of the lawyer’s ability or decision to reveal

information protected by Business and

Professions Code section 6068, subdivision (e)(1)

as provided in paragraph (b).

(d) In revealing information protected by Business

and Professions Code section 6068, subdivision (e)(1)

as provided in paragraph (b), the lawyer’s disclosure

must be no more than is necessary to prevent the

criminal act, given the information known* to the

lawyer at the time of the disclosure.

(e) A lawyer who does not reveal information

permitted by paragraph (b) does not violate this rule.

Comment

Duty of confidentiality

[1] Paragraph (a) relates to a lawyer’s obligations

under Business and Professions Code section 6068,

subdivision (e)(1), which provides it is a duty of a

lawyer: “To maintain inviolate the confidence, and at

every peril to himself or herself to preserve the

secrets, of his or her client.” A lawyer’s duty to

preserve the confidentiality of client information

involves public policies of paramount importance. (In

Re Jordan (1974) 12 Cal.3d 575, 580 [116 Cal.Rptr.

371].) Preserving the confidentiality of client

information contributes to the trust that is the

hallmark of the lawyer-client relationship. The client

is thereby encouraged to seek legal assistance and to

communicate fully and frankly with the lawyer even

as to embarrassing or detrimental subjects. The

lawyer needs this information to represent the client

effectively and, if necessary, to advise the client to

refrain from wrongful conduct. Almost without

exception, clients come to lawyers in order to

determine their rights and what is, in the complex of

laws and regulations, deemed to be legal and correct.

Based upon experience, lawyers know* that almost all

clients follow the advice given, and the law is upheld.

Paragraph (a) thus recognizes a fundamental principle

in the lawyer-client relationship, that, in the absence

of the client’s informed consent,* a lawyer must not

reveal information protected by Business and

Professions Code section 6068, subdivision (e)(1).

(See, e.g., Commercial Standard Title Co. v. Superior

Court (1979) 92 Cal.App.3d 934, 945 [155

Cal.Rptr.393].)

Lawyer-client confidentiality encompasses the lawyer-

client privilege, the work-product doctrine and ethical

standards of confidentiality

[2] The principle of lawyer-client confidentiality

applies to information a lawyer acquires by virtue of

the representation, whatever its source, and

encompasses matters communicated in confidence by

the client, and therefore protected by the lawyer-

client privilege, matters protected by the work

product doctrine, and matters protected under ethical

standards of confidentiality, all as established in law,

rule and policy. (See In the Matter of Johnson (Rev.

Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179; Goldstein v.

Lees (1975) 46 Cal.App.3d 614, 621 [120 Cal.Rptr.

253].) The lawyer-client privilege and work-product

doctrine apply in judicial and other proceedings in

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which a lawyer may be called as a witness or be

otherwise compelled to produce evidence concerning

a client. A lawyer’s ethical duty of confidentiality is

not so limited in its scope of protection for the lawyer-

client relationship of trust and prevents a lawyer from

revealing the client’s information even when not

subjected to such compulsion. Thus, a lawyer may

not reveal such information except with the informed

consent* of the client or as authorized or required by

the State Bar Act, these rules, or other law.

Narrow exception to duty of confidentiality under this

rule

[3] Notwithstanding the important public policies

promoted by lawyers adhering to the core duty of

confidentiality, the overriding value of life permits

disclosures otherwise prohibited by Business and

Professions Code section 6068, subdivision (e)(1).

Paragraph (b) is based on Business and Professions

Code section 6068, subdivision (e)(2), which narrowly

permits a lawyer to disclose information protected by

Business and Professions Code section 6068,

subdivision (e)(1) even without client consent.

Evidence Code section 956.5, which relates to the

evidentiary lawyer-client privilege, sets forth a similar

express exception. Although a lawyer is not

permitted to reveal information protected by section

6068, subdivision (e)(1) concerning a client’s past,

completed criminal acts, the policy favoring the

preservation of human life that underlies this

exception to the duty of confidentiality and the

evidentiary privilege permits disclosure to prevent a

future or ongoing criminal act.

Lawyer not subject to discipline for revealing

information protected by Business and Professions

Code section 6068, subdivision (e)(1) as permitted

under this rule

[4] Paragraph (b) reflects a balancing between the

interests of preserving client confidentiality and of

preventing a criminal act that a lawyer reasonably

believes* is likely to result in death or substantial*

bodily harm to an individual. A lawyer who reveals

information protected by Business and Professions

Code section 6068, subdivision (e)(1) as permitted

under this rule is not subject to discipline.

No duty to reveal information protected by Business

and Professions Code section 6068, subdivision (e)(1)

[5] Neither Business and Professions Code section

6068, subdivision (e)(2) nor paragraph (b) imposes an

affirmative obligation on a lawyer to reveal

information protected by Business and Professions

Code section 6068, subdivision (e)(1) in order to

prevent harm. A lawyer may decide not to reveal

such information. Whether a lawyer chooses to

reveal information protected by section 6068,

subdivision (e)(1) as permitted under this rule is a

matter for the individual lawyer to decide, based on

all the facts and circumstances, such as those

discussed in Comment [6] of this rule.

Whether to reveal information protected by Business

and Professions Code section 6068, subdivision (e) as

permitted under paragraph (b)

[6] Disclosure permitted under paragraph (b) is

ordinarily a last resort, when no other available action

is reasonably* likely to prevent the criminal act. Prior

to revealing information protected by Business and

Professions Code section 6068, subdivision (e)(1) as

permitted by paragraph (b), the lawyer must, if

reasonable* under the circumstances, make a good

faith effort to persuade the client to take steps to

avoid the criminal act or threatened harm. Among

the factors to be considered in determining whether

to disclose information protected by section 6068,

subdivision (e)(1) are the following:

(1) the amount of time that the lawyer has to

make a decision about disclosure;

(2) whether the client or a third-party has

made similar threats before and whether they

have ever acted or attempted to act upon them;

(3) whether the lawyer believes* the lawyer’s

efforts to persuade the client or a third person*

not to engage in the criminal conduct have or

have not been successful;

(4) the extent of adverse effect to the client’s

rights under the Fifth, Sixth and Fourteenth

Amendments of the United States Constitution

and analogous rights and privacy rights under

Article I of the Constitution of the State of

California that may result from disclosure

contemplated by the lawyer;

(5) the extent of other adverse effects to the

client that may result from disclosure

contemplated by the lawyer; and

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2023 CURRENT RULES 11

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

(6) the nature and extent of information that

must be disclosed to prevent the criminal act or

threatened harm.

A lawyer may also consider whether the prospective

harm to the victim or victims is imminent in deciding

whether to disclose the information protected by

section 6068, subdivision (e)(1). However, the

imminence of the harm is not a prerequisite to

disclosure and a lawyer may disclose the information

protected by section 6068, subdivision (e)(1) without

waiting until immediately before the harm is likely to

occur.

Whether to counsel client or third person* not to

commit a criminal act reasonably* likely to result in

death or substantial* bodily harm

[7] Paragraph (c)(1) provides that before a lawyer

may reveal information protected by Business and

Professions Code section 6068, subdivision (e)(1), the

lawyer must, if reasonable* under the circumstances,

make a good faith effort to persuade the client not to

commit or to continue the criminal act, or to persuade

the client to otherwise pursue a course of conduct

that will prevent the threatened death or substantial*

bodily harm, including persuading the client to take

action to prevent a third person* from committing or

continuing a criminal act. If necessary, the client may

be persuaded to do both. The interests protected by

such counseling are the client’s interests in limiting

disclosure of information protected by section 6068,

subdivision (e) and in taking responsible action to deal

with situations attributable to the client. If a client,

whether in response to the lawyer’s counseling or

otherwise, takes corrective action—such as by ceasing

the client’s own criminal act or by dissuading a third

person* from committing or continuing a criminal act

before harm is caused—the option for permissive

disclosure by the lawyer would cease because the

threat posed by the criminal act would no longer be

present. When the actor is a nonclient or when the

act is deliberate or malicious, the lawyer who

contemplates making adverse disclosure of protected

information may reasonably* conclude that the

compelling interests of the lawyer or others in their

own personal safety preclude personal contact with

the actor. Before counseling an actor who is a

nonclient, the lawyer should, if reasonable* under the

circumstances, first advise the client of the lawyer’s

intended course of action. If a client or another

person* has already acted but the intended harm has

not yet occurred, the lawyer should consider, if

reasonable* under the circumstances, efforts to

persuade the client or third person* to warn the

victim or consider other appropriate action to prevent

the harm. Even when the lawyer has concluded that

paragraph (b) does not permit the lawyer to reveal

information protected by section 6068, subdivision

(e)(1), the lawyer nevertheless is permitted to counsel

the client as to why it may be in the client’s best

interest to consent to the attorney’s disclosure of that

information.

Disclosure of information protected by Business and

Professions Code section 6068, subdivision (e)(1) must

be no more than is reasonably* necessary to prevent

the criminal act

[8] Paragraph (d) requires that disclosure of

information protected by Business and Professions

Code section 6068, subdivision (e) as permitted by

paragraph (b), when made, must be no more

extensive than is necessary to prevent the criminal

act. Disclosure should allow access to the information

to only those persons* who the lawyer reasonably

believes* can act to prevent the harm. Under some

circumstances, a lawyer may determine that the best

course to pursue is to make an anonymous disclosure

to the potential victim or relevant law-enforcement

authorities. What particular measures are

reasonable* depends on the circumstances known*

to the lawyer. Relevant circumstances include the

time available, whether the victim might be unaware

of the threat, the lawyer’s prior course of dealings

with the client, and the extent of the adverse effect

on the client that may result from the disclosure

contemplated by the lawyer.

Informing client pursuant to paragraph (c)(2) of

lawyer’s ability or decision to reveal information

protected by Business and Professions Code section

6068, subdivision (e)(1)

[9] A lawyer is required to keep a client reasonably*

informed about significant developments regarding

the representation. (See rule 1.4; Bus. & Prof. Code,

§ 6068, subd. (m).) Paragraph (c)(2), however,

recognizes that under certain circumstances,

informing a client of the lawyer’s ability or decision to

reveal information protected by section 6068,

subdivision (e)(1) as permitted in paragraph (b) would

likely increase the risk of death or substantial* bodily

harm, not only to the originally-intended victims of

the criminal act, but also to the client or members of

the client’s family, or to the lawyer or the lawyer’s

RULES OF PROFESSIONAL CONDUCT

12 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

family or associates. Therefore, paragraph (c)(2)

requires a lawyer to inform the client of the lawyer’s

ability or decision to reveal information protected by

section 6068, subdivision (e)(1) as permitted in

paragraph (b) only if it is reasonable* to do so under

the circumstances. Paragraph (c)(2) further recognizes

that the appropriate time for the lawyer to inform the

client may vary depending upon the circumstances.

(See Comment [10] of this rule.) Among the factors to

be considered in determining an appropriate time, if

any, to inform a client are:

(1) whether the client is an experienced user

of legal services;

(2) the frequency of the lawyer’s contact with

the client;

(3) the nature and length of the professional

relationship with the client;

(4) whether the lawyer and client have

discussed the lawyer’s duty of confidentiality or

any exceptions to that duty;

(5) the likelihood that the client’s matter will

involve information within paragraph (b);

(6) the lawyer’s belief,* if applicable, that so

informing the client is likely to increase the

likelihood that a criminal act likely to result in

the death of, or substantial* bodily harm to, an

individual; and

(7) the lawyer’s belief,* if applicable, that

good faith efforts to persuade a client not to act

on a threat have failed.

Avoiding a chilling effect on the lawyer-client

relationship

[10] The foregoing flexible approach to the lawyer’s

informing a client of his or her ability or decision to

reveal information protected by Business and

Professions Code section 6068, subdivision (e)(1)

recognizes the concern that informing a client about

limits on confidentiality may have a chilling effect on

client communication. (See Comment [1].) To avoid

that chilling effect, one lawyer may choose to inform

the client of the lawyer’s ability to reveal information

protected by section 6068, subdivision (e)(1) as early

as the outset of the representation, while another

lawyer may choose to inform a client only at a point

when that client has imparted information that comes

within paragraph (b), or even choose not to inform a

client until such time as the lawyer attempts to

counsel the client as contemplated in Comment [7].

In each situation, the lawyer will have satisfied the

lawyer’s obligation under paragraph (c)(2), and will

not be subject to discipline.

Informing client that disclosure has been made;

termination of the lawyer-client relationship

[11] When a lawyer has revealed information

protected by Business and Professions Code section

6068, subdivision (e) as permitted in paragraph (b), in

all but extraordinary cases the relationship between

lawyer and client that is based on trust and

confidence will have deteriorated so as to make the

lawyer’s representation of the client impossible.

Therefore, when the relationship has deteriorated

because of the lawyer’s disclosure, the lawyer is

required to seek to withdraw from the

representation, unless the client has given informed

consent* to the lawyer’s continued representation.

The lawyer normally must inform the client of the fact

of the lawyer’s disclosure. If the lawyer has a

compelling interest in not informing the client, such as

to protect the lawyer, the lawyer’s family or a third

person* from the risk of death or substantial* bodily

harm, the lawyer must withdraw from the

representation. (See rule 1.16.)

Other consequences of the lawyer’s disclosure

[12] Depending upon the circumstances of a lawyer’s

disclosure of information protected by Business and

Professions Code section 6068, subdivision (e)(1) as

permitted by this rule, there may be other important

issues that a lawyer must address. For example, a

lawyer who is likely to testify as a witness in a matter

involving a client must comply with rule 3.7. Similarly,

the lawyer must also consider his or her duties of

loyalty and competence. (See rules 1.7 and 1.1.)

Other exceptions to confidentiality under California

law

[13] This rule is not intended to augment, diminish,

or preclude any other exceptions to the duty to

preserve information protected by Business and

Professions Code section 6068, subdivision (e)(1)

recognized under California law.

RULES OF PROFESSIONAL CONDUCT

2023 CURRENT RULES 13

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Rule 1.7 Conflict of Interest: Current Clients

(a) A lawyer shall not, without informed written

consent* from each client and compliance with

paragraph (d), represent a client if the representation

is directly adverse to another client in the same or a

separate matter.

(b) A lawyer shall not, without informed written

consent* from each affected client and compliance

with paragraph (d), represent a client if there is a

significant risk the lawyer’s representation of the

client will be materially limited by the lawyer’s

responsibilities to or relationships with another client,

a former client or a third person,* or by the lawyer’s

own interests.

comply with paragraph (b) is not present, a lawyer

shall not represent a client without written*

disclosure of the relationship to the client and

compliance with paragraph (d) where:

(1) the lawyer has, or knows* that another

lawyer in the lawyer’s firm* has, a legal,

business, financial, professional, or personal

relationship with or responsibility to a party or

witness in the same matter; or

(2) the lawyer knows* or reasonably should

know* that another party’s lawyer is a spouse,

parent, child, or sibling of the lawyer, lives with

the lawyer, is a client of the lawyer or another

lawyer in the lawyer’s firm,* or has an intimate

personal relationship with the lawyer.

(d) Representation is permitted under this rule only

if the lawyer complies with paragraphs (a), (b), and

(c), and:

(1) the lawyer reasonably believes* that the

lawyer will be able to provide competent and

diligent representation to each affected client;

(2) the representation is not prohibited by

law; and

(3) the representation does not involve the

assertion of a claim by one client against another

client represented by the lawyer in the same

litigation or other proceeding before a tribunal.

(e) For purposes of this rule, “matter” includes any

judicial or other proceeding, application, request for a

ruling or other determination, contract, transaction,

claim, controversy, investigation, charge, accusation,

arrest, or other deliberation, decision, or action that is

focused on the interests of specific persons,* or a

discrete and identifiable class of persons.*

Comment

[1] Loyalty and independent judgment are essential

elements in the lawyer’s relationship to a client. The

duty of undivided loyalty to a current client prohibits

undertaking representation directly adverse to that

client without that client’s informed written consent.*

Thus, absent consent, a lawyer may not act as an

advocate in one matter against a person* the lawyer

represents in some other matter, even when the

matters are wholly unrelated. (See Flatt v. Superior

Court (1994) 9 Cal.4th 275 [36 Cal.Rptr.2d 537].) A

directly adverse conflict under paragraph (a) can arise

in a number of ways, for example, when: (i) a lawyer

accepts representation of more than one client in a

matter in which the interests of the clients actually

conflict; (ii) a lawyer, while representing a client,

accepts in another matter the representation of a

person* who, in the first matter, is directly adverse to

the lawyer’s client; or (iii) a lawyer accepts

representation of a person* in a matter in which an

opposing party is a client of the lawyer or the lawyer’s

law firm.* Similarly, direct adversity can arise when a

lawyer cross-examines a non-party witness who is the

lawyer’s client in another matter, if the examination is

likely to harm or embarrass the witness. On the other

hand, simultaneous representation in unrelated

matters of clients whose interests are only

economically adverse, such as representation of

competing economic enterprises in unrelated

litigation, does not ordinarily constitute a conflict of

interest and thus may not require informed written

consent* of the respective clients.

[2] Paragraphs (a) and (b) apply to all types of legal

representations, including the concurrent

representation of multiple parties in litigation or in a

single transaction or in some other common

enterprise or legal relationship. Examples of the latter

include the formation of a partnership for several

partners* or a corporation for several shareholders,

the preparation of a pre-nuptial agreement, or joint or

reciprocal wills for a husband and wife, or the

resolution of an “uncontested” marital dissolution. If

a lawyer initially represents multiple clients with the

informed written consent* as required under

paragraph (b), and circumstances later develop

RULES OF PROFESSIONAL CONDUCT

14 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

indicating that direct adversity exists between the

clients, the lawyer must obtain further informed

written consent* of the clients under paragraph (a).

[3] In State Farm Mutual Automobile Insurance

Company v. Federal Insurance Company (1999) 72

Cal.App.4th 1422 [86 Cal.Rptr.2d 20], the court held

that paragraph (C)(3) of predecessor rule 3-310 was

violated when a lawyer, retained by an insurer to

defend one suit, and while that suit was still pending,

filed a direct action against the same insurer in an

unrelated action without securing the insurer’s

consent. Notwithstanding State Farm, paragraph (a)

does not apply with respect to the relationship

between an insurer and a lawyer when, in each

matter, the insurer’s interest is only as an indemnity

provider and not as a direct party to the action.

[4] Even where there is no direct adversity, a

conflict of interest requiring informed written

consent* under paragraph (b) exists if there is a

significant risk that a lawyer’s ability to consider,

recommend or carry out an appropriate course of

action for the client will be materially limited as a

result of the lawyer’s other responsibilities, interests,

or relationships, whether legal, business, financial,

professional, or personal. For example, a lawyer’s

obligations to two or more clients in the same matter,

such as several individuals seeking to form a joint

venture, may materially limit the lawyer’s ability to

recommend or advocate all possible positions that

each might take because of the lawyer’s duty of

loyalty to the other clients. The risk is that the lawyer

may not be able to offer alternatives that would

otherwise be available to each of the clients. The

mere possibility of subsequent harm does not itself

require disclosure and informed written consent.*

The critical questions are the likelihood that a

difference in interests exists or will eventuate and, if it

does, whether it will materially interfere with the

lawyer’s independent professional judgment in

considering alternatives or foreclose courses of action

that reasonably* should be pursued on behalf of each

client. The risk that the lawyer’s representation may

be materially limited may also arise from present or

past relationships between the lawyer, or another

member of the lawyer’s firm*, with a party, a witness,

or another person* who may be affected substantially

by the resolution of the matter.

[5] Paragraph (c) requires written* disclosure of any

of the specified relationships even if there is not a

significant risk the relationship will materially limit the

lawyer’s representation of the client. However, if the

particular circumstances present a significant risk the

relationship will materially limit the lawyer’s

representation of the client, informed written

consent* is required under paragraph (b).

[6] Ordinarily paragraphs (a) and (b) will not require

informed written consent* simply because a lawyer

takes inconsistent legal positions in different

tribunals* at different times on behalf of different

clients. Advocating a legal position on behalf of a

client that might create precedent adverse to the

interests of another client represented by a lawyer in

an unrelated matter is not sufficient, standing alone,

to create a conflict of interest requiring informed

written consent.* Informed written consent* may be

required, however, if there is a significant risk that: (i)

the lawyer may temper the lawyer’s advocacy on

behalf of one client out of concern about creating

precedent adverse to the interest of another client; or

(ii) the lawyer’s action on behalf of one client will

materially limit the lawyer’s effectiveness in

representing another client in a different case, for

example, when a decision favoring one client will

create a precedent likely to seriously weaken the

position taken on behalf of the other client. Factors

relevant in determining whether the clients’ informed

written consent* is required include: the courts and

jurisdictions where the different cases are pending,

whether a ruling in one case would have a

precedential effect on the other case, whether the

legal question is substantive or procedural, the

temporal relationship between the matters, the

significance of the legal question to the immediate

and long-term interests of the clients involved, and

the clients’ reasonable* expectations in retaining the

lawyer.

[7] Other rules and laws may preclude the

disclosures necessary to obtain the informed written

consent* or provide the information required to

permit representation under this rule. (See, e.g., Bus.

& Prof. Code, § 6068, subd. (e)(1) and rule 1.6.) If

such disclosure is precluded, representation subject to

paragraph (a), (b), or (c) of this rule is likewise

precluded.

[8] Paragraph (d) imposes conditions that must be

satisfied even if informed written consent* is

obtained as required by paragraphs (a) or (b) or the

lawyer has informed the client in writing* as required

by paragraph (c). There are some matters in which

the conflicts are such that even informed written

RULES OF PROFESSIONAL CONDUCT

2023 CURRENT RULES 15

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

consent* may not suffice to permit representation.

(See Woods v. Superior Court (1983) 149 Cal.App.3d

931 [197 Cal.Rptr. 185]; Klemm v. Superior Court

(1977) 75 Cal.App.3d 893 [142 Cal.Rptr. 509]; Ishmael

v. Millington (1966) 241 Cal.App.2d 520 [50 Cal.Rptr.

592].)

[9] This rule does not preclude an informed written

consent* to a future conflict in compliance with

applicable case law. The effectiveness of an advance

consent is generally determined by the extent to

which the client reasonably* understands the

material risks that the consent entails. The more

comprehensive the explanation of the types of future

representations that might arise and the actual and

reasonably* foreseeable adverse consequences to the

client of those representations, the greater the

likelihood that the client will have the requisite

understanding. The experience and sophistication of

the client giving consent, as well as whether the client

is independently represented in connection with

giving consent, are also relevant in determining

whether the client reasonably* understands the risks

involved in giving consent. An advance consent

cannot be effective if the circumstances that

materialize in the future make the conflict

nonconsentable under paragraph (d). A lawyer who

obtains from a client an advance consent that

complies with this rule will have all the duties of a

lawyer to that client except as expressly limited by the

consent. A lawyer cannot obtain an advance consent

to incompetent representation. (See rule 1.8.8.)

[10] A material change in circumstances relevant to

application of this rule may trigger a requirement to

make new disclosures and, where applicable, obtain

new informed written consents.* In the absence of

such consents, depending on the circumstances, the

lawyer may have the option to withdraw from one or

more of the representations in order to avoid the

conflict. The lawyer must seek court approval where

necessary and take steps to minimize harm to the

clients. See rule 1.16. The lawyer must continue to

protect the confidences of the clients from whose

representation the lawyer has withdrawn. (See rule

1.9(c).)

[11] For special rules governing membership in a

legal service organization, see rule 6.3; and for work in

conjunction with certain limited legal services

programs, see rule 6.5.

Rule 1.8.1 Business Transactions with a Client

and Pecuniary Interests Adverse to a Client

A lawyer shall not enter into a business transaction

with a client, or knowingly* acquire an ownership,

possessory, security or other pecuniary interest

adverse to a client, unless each of the following

requirements has been satisfied:

(a) the transaction or acquisition and its terms are

fair and reasonable* to the client and the terms and

the lawyer’s role in the transaction or acquisition are

fully disclosed and transmitted in writing* to the

client in a manner that should reasonably* have been

understood by the client;

(b) the client either is represented in the transaction

or acquisition by an independent lawyer of the client’s

choice or the client is advised in writing* to seek the

advice of an independent lawyer of the client’s choice

and is given a reasonable* opportunity to seek that

advice; and

consent* to the terms of the transaction or

acquisition, and to the lawyer’s role in it.

Comment

[1] A lawyer has an “other pecuniary interest

adverse to a client” within the meaning of this rule

when the lawyer possesses a legal right to significantly

impair or prejudice the client’s rights or interests

without court action. (See Fletcher v. Davis (2004) 33

Cal.4th 61, 68 [14 Cal.Rptr.3d 58]; see also Bus. &

Prof. Code, § 6175.3 [Sale of financial products to

elder or dependent adult clients; Disclosure]; Fam.

Code, §§ 2033-2034 [Attorney lien on community real

property].) However, this rule does not apply to a

charging lien given to secure payment of a

contingency fee. (See Plummer v. Day/Eisenberg, LLP

(2010) 184 Cal.App.4th 38 [108 Cal.Rptr.3d 455].)

[2] For purposes of this rule, factors that can be

considered in determining whether a lawyer is

independent include whether the lawyer: (i) has a

financial interest in the transaction or acquisition; and

(ii) has a close legal, business, financial, professional

or personal relationship with the lawyer seeking the

client’s consent.

[3] Fairness and reasonableness under paragraph

(a) are measured at the time of the transaction or

acquisition based on the facts that then exist.

RULES OF PROFESSIONAL CONDUCT

16 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

[4] In some circumstances, this rule may apply to a

transaction entered into with a former client.

(Compare Hunniecutt v. State Bar (1988) 44 Cal.3d

362, 370-71 [“[W]hen an attorney enters into a

transaction with a former client regarding a fund

which resulted from the attorney’s representation, it

is reasonable to examine the relationship between

the parties for indications of special trust resulting

therefrom. We conclude that if there is evidence that

the client placed his trust in the attorney because of

the representation, an attorney-client relationship

exists for the purposes of [the predecessor rule] even

if the representation has otherwise ended [and] It

appears that [the client] became a target of [the

lawyer’s] solicitation because he knew, through his

representation of her, that she had recently received

the settlement fund [and the court also found the

client to be unsophisticated].”] with Wallis v. State

Bar (1942) 21 Cal.2d 322 [finding lawyer not subject

to discipline for entering into business transaction

with a former client where the former client was a

sophisticated businesswoman who had actively

negotiated for terms she thought desirable, and the

transaction was not connected with the matter on

which the lawyer previously represented her].)

[5] This rule does not apply to the agreement by

which the lawyer is retained by the client, unless the

agreement confers on the lawyer an ownership,

possessory, security, or other pecuniary interest

adverse to the client. Such an agreement is governed,

in part, by rule 1.5. This rule also does not apply to an

agreement to advance to or deposit with a lawyer a

sum to be applied to fees, or costs or other expenses,

to be incurred in the future. Such agreements are

governed, in part, by rules 1.5 and 1.15.

[6] This rule does not apply: (i) where a lawyer and

client each make an investment on terms offered by a

third person* to the general public or a significant

portion thereof; or (ii) to standard commercial

transactions for products or services that a lawyer

acquires from a client on the same terms that the

client generally markets them to others, where the

lawyer has no advantage in dealing with the client.

Rule 1.8.2 Use of Current Client’s Information

A lawyer shall not use a client’s information protected

by Business and Professions Code section 6068,

subdivision (e)(1) to the disadvantage of the client

unless the client gives informed consent,* except as

permitted by these rules or the State Bar Act.

Comment

A lawyer violates the duty of loyalty by using

information protected by Business and Professions

Code section 6068, subdivision (e)(1) to the

disadvantage of a current client.

Rule 1.8.3 Gifts from Client

(a) A lawyer shall not:

(1) solicit a client to make a substantial* gift,

including a testamentary gift, to the lawyer or a

person* related to the lawyer, unless the lawyer

or other recipient of the gift is related to the

client, or

(2) prepare on behalf of a client an instrument

giving the lawyer or a person* related to the

lawyer any substantial* gift, unless (i) the lawyer

or other recipient of the gift is related to the

client, or (ii) the client has been advised by an

independent lawyer who has provided a

certificate of independent review that complies

with the requirements of Probate Code section

21384.

(b) For purposes of this rule, related persons*

include a person* who is “related by blood or affinity”

as that term is defined in California Probate Code

section 21374, subdivision (a).

Comment

[1] A lawyer or a person* related to a lawyer may

accept a gift from the lawyer’s client, subject to

general standards of fairness and absence of undue

influence. A lawyer also does not violate this rule

merely by engaging in conduct that might result in a

client making a gift, such as by sending the client a

wedding announcement. Discipline is appropriate

where impermissible influence occurs. (See Magee v.

State Bar (1962) 58 Cal.2d 423 [24 Cal.Rptr. 839].)

[2] This rule does not prohibit a lawyer from seeking

to have the lawyer or a partner* or associate of the

lawyer named as executor of the client’s estate or to

another potentially lucrative fiduciary position. Such

appointments, however, will be subject to rule 1.7(b)

and (c).

RULES OF PROFESSIONAL CONDUCT

2023 CURRENT RULES 17

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Rule 1.8.4 [Reserved]

Rule 1.8.5 Payment of Personal or Business

Expenses Incurred by or for a Client

(a) A lawyer shall not directly or indirectly pay or

agree to pay, guarantee, or represent that the

lawyer or lawyer’s law firm* will pay the personal or

business expenses of a prospective or existing client.

(b) Notwithstanding paragraph (a), a lawyer may:

(1) pay or agree to pay such expenses to third

persons,* from funds collected or to be

collected for the client as a result of the

representation, with the consent of the client;

(2) after the lawyer is retained by the client,

agree to lend money to the client based on the

client’s written* promise to repay the loan,

provided the lawyer complies with rules 1.7(b),

1.7(c), and 1.8.1 before making the loan or

agreeing to do so;

(3) advance the costs of prosecuting or

defending a claim or action, or of otherwise

protecting or promoting the client’s interests,

the repayment of which may be contingent on

the outcome of the matter; and

(4) pay the costs of prosecuting or defending

a claim or action, or of otherwise protecting or

promoting the interests of an indigent person*

in a matter in which the lawyer represents the

client.

(b)(3) and (b)(4) are not limited to those costs that

are taxable or recoverable under any applicable

statute or rule of court but may include any

reasonable* expenses of litigation, including court

costs, and reasonable* expenses in preparing for

litigation or in providing other legal services to the

client.

(d) Nothing in this rule shall be deemed to limit the

application of rule 1.8.9.

Rule 1.8.6 Compensation from One Other than

Client

A lawyer shall not enter into an agreement for,

charge, or accept compensation for representing a

client from one other than the client unless:

(a) there is no interference with the lawyer’s

independent professional judgment or with the

lawyer-client relationship;

(b) information is protected as required by

Business and Professions Code section 6068,

subdivision (e)(1) and rule 1.6; and

consent* at or before the time the lawyer has

entered into the agreement for, charged, or

accepted the compensation, or as soon thereafter as

reasonably* practicable, provided that no disclosure

or consent is required if:

(1) nondisclosure or the compensation is

otherwise authorized by law or a court order;

(2) the lawyer is rendering legal services on

behalf of any public agency or nonprofit

organization that provides legal services to

other public agencies or the public.

Comment

[1] A lawyer’s responsibilities in a matter are owed

only to the client except where the lawyer also

represents the payor in the same matter. With

respect to the lawyer’s additional duties when

representing both the client and the payor in the

same matter, see rule 1.7.

[2] A lawyer who is exempt from disclosure and

consent requirements under paragraph (c)

nevertheless must comply with paragraphs (a) and

(b).

[3] This rule is not intended to abrogate existing

relationships between insurers and insureds

whereby the insurer has the contractual right to

unilaterally select counsel for the insured, where

there is no conflict of interest. (See San Diego Navy

Federal Credit Union v. Cumis Insurance Society

(1984) 162 Cal.App.3d 358 [208 Cal.Rptr. 494].).

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18 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

[4] In some limited circumstances, a lawyer might

not be able to obtain client consent before the

lawyer has entered into an agreement for, charged,

or accepted compensation, as required by this rule.

This might happen, for example, when a lawyer is

retained or paid by a family member on behalf of an

incarcerated client or in certain commercial settings,

such as when a lawyer is retained by a creditors’

committee involved in a corporate debt

restructuring and agrees to be compensated for any

services to be provided to other similarly situated

creditors who have not yet been identified. In such

limited situations, paragraph (c) permits the lawyer

to comply with this rule as soon thereafter as is

reasonably* practicable.

[5] This rule is not intended to alter or diminish a

lawyer’s obligations under rule 5.4(c).

Rule 1.8.7 Aggregate Settlements

(a) A lawyer who represents two or more clients

shall not enter into an aggregate settlement of the

claims of or against the clients, or in a criminal case an

aggregate agreement as to guilty or nolo contendere

pleas, unless each client gives informed written

consent.* The lawyer’s disclosure shall include the

existence and nature of all the claims or pleas

involved and of the participation of each person* in

the settlement.

(b) This rule does not apply to class action

settlements subject to court approval.

Rule 1.8.8 Limiting Liability to Client

A lawyer shall not:

(a) Contract with a client prospectively limiting the

lawyer’s liability to the client for the lawyer’s

professional malpractice; or

(b) Settle a claim or potential claim for the lawyer’s

liability to a client or former client for the lawyer’s

professional malpractice, unless the client or former

client is either:

(1) represented by an independent lawyer

concerning the settlement; or

(2) advised in writing* by the lawyer to seek

the advice of an independent lawyer of the

client’s choice regarding the settlement and

given a reasonable* opportunity to seek that

advice.

Comment

[1] Paragraph (b) does not absolve the lawyer of the

obligation to comply with other law. (See, e.g., Bus. &

Prof. Code, § 6090.5.)

[2] This rule does not apply to customary

qualifications and limitations in legal opinions and

memoranda, nor does it prevent a lawyer from

reasonably* limiting the scope of the lawyer’s

representation. (See rule 1.2(b).)

Rule 1.8.9 Purchasing Property at a Foreclosure

or a Sale Subject to Judicial Review

(a) A lawyer shall not directly or indirectly

purchase property at a probate, foreclosure,

receiver’s, trustee’s, or judicial sale in an action or

proceeding in which such lawyer or any lawyer

affiliated by reason of personal, business, or

professional relationship with that lawyer or with

that lawyer’s law firm* is acting as a lawyer for a

party or as executor, receiver, trustee,

administrator, guardian, or conservator.

(b) A lawyer shall not represent the seller at a

probate, foreclosure, receiver, trustee, or judicial

sale in an action or proceeding in which the

purchaser is a spouse or relative of the lawyer or of

another lawyer in the lawyer’s law firm* or is an

employee of the lawyer or the lawyer’s law firm.*

participation in transactions that are specifically

authorized by and comply with Probate Code

sections 9880 through 9885, but such transactions

remain subject to the provisions of rules 1.8.1 and

1.7.

Comment

A lawyer may lawfully participate in a transaction

involving a probate proceeding which concerns a

client by following the process described in Probate

Code sections 9880-9885. These provisions, which

permit what would otherwise be impermissible self-

dealing by specific submissions to and approval by

the courts, must be strictly followed in order to

avoid violation of this rule.

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2023 CURRENT RULES 19

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Rule 1.8.10 Sexual Relations with Current Client

(a) A lawyer shall not engage in sexual relations

with a current client who is not the lawyer’s spouse or

registered domestic partner, unless a consensual

sexual relationship existed between them when the

lawyer-client relationship commenced.

(b) For purposes of this rule, “sexual relations”

means sexual intercourse or the touching of an

intimate part of another person* for the purpose of

sexual arousal, gratification, or abuse.

violation of this rule, no Notice of Disciplinary Charges

may be filed by the State Bar against a lawyer under

this rule until the State Bar has attempted to obtain

the client’s statement regarding, and has considered,

whether the client would be unduly burdened by

further investigation or a charge.

Comment

[1] Although this rule does not apply to a

consensual sexual relationship that exists when a

lawyer-client relationship commences, the lawyer

nevertheless must comply with all other applicable

rules. (See, e.g., rules 1.1, 1.7, and 2.1.)

[2] When the client is an organization, this rule

applies to a lawyer for the organization (whether

inside counsel or outside counsel) who has sexual

relations with a constituent of the organization who

supervises, directs or regularly consults with that

lawyer concerning the organization’s legal matters.

(See rule 1.13.)

[3] Business and Professions Code section 6106.9,

including the requirement that the complaint be

verified, applies to charges under subdivision (a) of

that section. This rule and the statute impose

different obligations.

Rule 1.8.11 Imputation of Prohibitions Under

Rules 1.8.1 to 1.8.9

While lawyers are associated in a law firm,* a

prohibition in rules 1.8.1 through 1.8.9 that applies to

any one of them shall apply to all of them.

Comment

A prohibition on conduct by an individual lawyer in

rules 1.8.1 through 1.8.9 also applies to all lawyers

associated in a law firm* with the personally

prohibited lawyer. For example, one lawyer in a law

firm* may not enter into a business transaction with

a client of another lawyer associated in the law firm*

without complying with rule 1.8.1, even if the first

lawyer is not personally involved in the

representation of the client. This rule does not apply

to rule 1.8.10 since the prohibition in that rule is

personal and is not applied to associated lawyers.

Rule 1.9 Duties to Former Clients

(a) A lawyer who has formerly represented a client

in a matter shall not thereafter represent another

person* in the same or a substantially related matter

in which that person’s* interests are materially

adverse to the interests of the former client unless

the former client gives informed written consent.*

(b) A lawyer shall not knowingly* represent a

person* in the same or a substantially related matter

in which a firm* with which the lawyer formerly was

associated had previously represented a client

(1) whose interests are materially adverse to

that person;* and

(2) about whom the lawyer had acquired

information protected by Business and

Professions Code section 6068, subdivision (e)

and rules 1.6 and 1.9(c) that is material to the

matter;

unless the former client gives informed written

consent.*

in a matter or whose present or former firm* has

formerly represented a client in a matter shall not

thereafter:

(1) use information protected by Business and

Professions Code section 6068, subdivision (e)

and rule 1.6 acquired by virtue of the

representation of the former client to the

disadvantage of the former client except as

these rules or the State Bar Act would permit

with respect to a current client, or when the

information has become generally known;* or

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An asterisk (*) identifies a word or phrase defined in rule 1.0.1

(2) reveal information protected by Business

and Professions Code section 6068, subdivision

(e) and rule 1.6 acquired by virtue of the

representation of the former client except as

these rules or the State Bar Act permit with

respect to a current client.

Comment

[1] After termination of a lawyer-client relationship,

the lawyer owes two duties to a former client. The

lawyer may not (i) do anything that will injuriously

affect the former client in any matter in which the

lawyer represented the former client, or (ii) at any

time use against the former client knowledge or

information acquired by virtue of the previous

relationship. (See Oasis West Realty, LLC v. Goldman

(2011) 51 Cal.4th 811 [124 Cal.Rptr.3d 256];

Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564

[15 P.2d 505].) For example, (i) a lawyer could not

properly seek to rescind on behalf of a new client a

contract drafted on behalf of the former client and (ii)

a lawyer who has prosecuted an accused person*

could not represent the accused in a subsequent civil

action against the government concerning the same

matter. (See also Bus. & Prof. Code, § 6131; 18 U.S.C.

§ 207(a).) These duties exist to preserve a client’s

trust in the lawyer and to encourage the client’s

candor in communications with the lawyer.

[2] For what constitutes a “matter” for purposes of

this rule, see rule 1.7(e).

[3] Two matters are “the same or substantially

related” for purposes of this rule if they involve a

substantial* risk of a violation of one of the two duties

to a former client described above in Comment [1].

For example, this will occur: (i) if the matters involve

the same transaction or legal dispute or other work

performed by the lawyer for the former client; or (ii) if

the lawyer normally would have obtained information

in the prior representation that is protected by

Business and Professions Code section 6068,

subdivision (e) and rule 1.6, and the lawyer would be

expected to use or disclose that information in the

subsequent representation because it is material to

the subsequent representation.

[4] Paragraph (b) addresses a lawyer’s duties to a

client who has become a former client because the

lawyer no longer is associated with the law firm* that

represents or represented the client. In that situation,

the lawyer has a conflict of interest only when the

lawyer involved has actual knowledge of information

protected by Business and Professions Code section

6068, subdivision (e) and rules 1.6 and 1.9(c). Thus, if

a lawyer while with one firm* acquired no knowledge

or information relating to a particular client of the

firm,* and that lawyer later joined another firm,*

neither the lawyer individually nor lawyers in the

second firm* would violate this rule by representing

another client in the same or a related matter even

though the interests of the two clients conflict. See

rule 1.10(b) for the restrictions on lawyers in a firm*

once a lawyer has terminated association with the

firm.*

[5] The fact that information can be discovered in a

public record does not, by itself, render that

information generally known* under paragraph (c).

(See, e.g., In the Matter of Johnson (Review Dept.

2000) 4 Cal. State Bar Ct. Rptr. 179.)

[6] With regard to the effectiveness of an advance

consent, see rule 1.7, Comment [9]. With regard to

imputation of conflicts to lawyers in a firm* with

which a lawyer is or was formerly associated, see rule

1.10. Current and former government lawyers must

comply with this rule to the extent required by rule

1.11.

Rule 1.10 Imputation of Conflicts of Interest:

General Rule

(a) While lawyers are associated in a firm,* none of

them shall knowingly* represent a client when any

one of them practicing alone would be prohibited

from doing so by rules 1.7 or 1.9, unless

(1) the prohibition is based on a personal

interest of the prohibited lawyer and does not

present a significant risk of materially limiting

the representation of the client by the remaining

lawyers in the firm;* or

(2) the prohibition is based upon rule 1.9(a) or

(b) and arises out of the prohibited lawyer’s

association with a prior firm,* and

(i) the prohibited lawyer did not

substantially participate in the same or a

substantially related matter;

(ii) the prohibited lawyer is timely

screened* from any participation in the

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2023 CURRENT RULES 21

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

matter and is apportioned no part of the

fee therefrom; and

(iii) written* notice is promptly given to

any affected former client to enable the

former client to ascertain compliance with

the provisions of this rule, which shall

include a description of the screening*

procedures employed; and an agreement

by the firm* to respond promptly to any

written* inquiries or objections by the

former client about the screening*

procedures.

(b) When a lawyer has terminated an association

with a firm,* the firm* is not prohibited from

thereafter representing a person* with interests

materially adverse to those of a client represented by

the formerly associated lawyer and not currently

represented by the firm,* unless:

(1) the matter is the same or substantially

related to that in which the formerly associated

lawyer represented the client; and

(2) any lawyer remaining in the firm* has

information protected by Business and

Professions Code section 6068, subdivision (e)

and rules 1.6 and 1.9(c) that is material to the

matter.

each affected client under the conditions stated in

rule 1.7.

(d) The imputation of a conflict of interest to

lawyers associated in a firm* with former or current

government lawyers is governed by rule 1.11.

Comment

[1] In determining whether a prohibited lawyer’s

previously participation was substantial,* a number of

factors should be considered, such as the lawyer’s

level of responsibility in the prior matter, the duration

of the lawyer’s participation, the extent to which the

lawyer advised or had personal contact with the

former client, and the extent to which the lawyer was

exposed to confidential information of the former

client likely to be material in the current matter.

[2] Paragraph (a) does not prohibit representation

by others in the law firm* where the person*

prohibited from involvement in a matter is a

nonlawyer, such as a paralegal or legal secretary. Nor

does paragraph (a) prohibit representation if the

lawyer is prohibited from acting because of events

before the person* became a lawyer, for example,

work that the person* did as a law student. Such

persons,* however, ordinarily must be screened*

from any personal participation in the matter. (See

rules 1.0.1(k) and 5.3.)

[3] Paragraph (a)(2)(ii) does not prohibit the

screened* lawyer from receiving a salary or

partnership share established by prior independent

agreement, but that lawyer may not receive

compensation directly related to the matter in which

the lawyer is prohibited.

[4] Where a lawyer is prohibited from engaging in

certain transactions under rules 1.8.1 through 1.8.9,

rule 1.8.11, and not this rule, determines whether

that prohibition also applies to other lawyers

associated in a firm* with the personally prohibited

lawyer.

[5] The responsibilities of managerial and

supervisory lawyers prescribed by rules 5.1 and 5.3

apply to screening* arrangements implemented

under this rule.

[6] Standards for disqualification, and whether in a

particular matter (1) a lawyer’s conflict will be

imputed to other lawyers in the same firm,* or (2) the

use of a timely screen* is effective to avoid that

imputation, are also the subject of statutes and case

law. (See, e.g., Code Civ. Proc., § 128, subd. (a)(5);

Pen. Code, § 1424; In re Charlisse C. (2008) 45 Cal.4th

145 [84 Cal.Rptr.3d 597]; Rhaburn v. Superior Court

(2006) 140 Cal.App.4th 1566 [45 Cal.Rptr.3d 464]; Kirk

v. First American Title Ins. Co. (2010) 183 Cal.App.4th

776 [108 Cal.Rptr.3d 620].)

Rule 1.11 Special Conflicts of Interest for

Former and Current Government Officials and

Employees

(a) Except as law may otherwise expressly permit, a

lawyer who has formerly served as a public official or

employee of the government:

(1) is subject to rule 1.9(c); and

(2) shall not otherwise represent a client in

connection with a matter in which the lawyer

participated personally and substantially as a

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22 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

public official or employee, unless the

appropriate government agency gives its

informed written consent* to the

representation. This paragraph shall not apply

to matters governed by rule 1.12(a).

(b) When a lawyer is prohibited from

representation under paragraph (a), no lawyer in a

firm* with which that lawyer is associated may

knowingly* undertake or continue representation in

such a matter unless:

(1) the personally prohibited lawyer is timely

screened* from any participation in the matter

and is apportioned no part of the fee therefrom;

and

(2) written* notice is promptly given to the

appropriate government agency to enable it to

ascertain compliance with the provisions of this

rule

lawyer who was a public official or employee and,

during that employment, acquired information that

the lawyer knows* is confidential government

information about a person,* may not represent a

private client whose interests are adverse to that

person* in a matter in which the information could be

used to the material disadvantage of that person.* As

used in this rule, the term “confidential government

information” means information that has been

obtained under governmental authority, that, at the

time this rule is applied, the government is prohibited

by law from disclosing to the public, or has a legal

privilege not to disclose, and that is not otherwise

available to the public. A firm* with which that

lawyer is associated may undertake or continue

representation in the matter only if the personally

prohibited lawyer is timely screened* from any

participation in the matter and is apportioned no part

of the fee therefrom.

(d) Except as law may otherwise expressly permit, a

lawyer currently serving as a public official or

employee:

(1) is subject to rules 1.7 and 1.9; and

(2) shall not:

(i) participate in a matter in which the

lawyer participated personally and

substantially while in private practice or

nongovernmental employment, unless the

appropriate government agency gives its

informed written consent;* or

(ii) negotiate for private employment

with any person* who is involved as a party,

or as a lawyer for a party, or with a law

firm* for a party, in a matter in which the

lawyer is participating personally and

substantially, except that a lawyer serving

as a law clerk to a judge, other adjudicative

officer or arbitrator may negotiate for

private employment as permitted by rule

1.12(b) and subject to the conditions

stated in rule 1.12(b).

Comment

[1] Rule 1.10 is not applicable to the conflicts of

interest addressed by this rule.

[2] For what constitutes a “matter” for purposes of

this rule, see rule 1.7(e).

[3] Paragraphs (a)(2) and (d)(2) apply regardless of

whether a lawyer is adverse to a former client. Both

provisions apply when the former public official or

employee of the government has personally and

substantially participated in the matter. Personal

participation includes both direct participation and the

supervision of a subordinate’s participation.

Substantial* participation requires that the lawyer’s

involvement be of significance to the matter.

Participation may be substantial* even though it is not

determinative of the outcome of a particular matter.

However, it requires more than official responsibility,

knowledge, perfunctory involvement, or involvement

on an administrative or peripheral issue. A finding of

substantiality should be based not only on the effort

devoted to the matter, but also on the importance of

the effort. Personal and substantial* participation may

occur when, for example, a lawyer participates through

decision, approval, disapproval, recommendation,

investigation or the rendering of advice in a particular

matter.

[4] By requiring a former government lawyer to

comply with rule 1.9(c), paragraph (a)(1) protects

information obtained while working for the

government to the same extent as information

learned while representing a private client. This

provision applies regardless of whether the lawyer

was working in a “legal” capacity. Thus, information

learned by the lawyer while in public service in an

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2023 CURRENT RULES 23

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

administrative, policy, or advisory position also is

covered by paragraph (a)(1).

[5] Paragraph (c) operates only when the lawyer in

question has actual knowledge of the information; it

does not operate with respect to information that

merely could be imputed to the lawyer.

[6] When a lawyer has been employed by one

government agency and then moves to a second

government agency, it may be appropriate to treat

that second agency as another client for purposes of

this rule, as when a lawyer is employed by a city and

subsequently is employed by a federal agency.

Because conflicts of interest are governed by

paragraphs (a) and (b), the latter agency is required to

screen* the lawyer. Whether two government

agencies should be regarded as the same or different

clients for conflict of interest purposes is beyond the

scope of these rules. (See rule 1.13, Comment [6]; see

also Civil Service Commission v. Superior Court (1984)

163 Cal.App.3d 70, 76-78 [209 Cal.Rptr. 159].)

[7] Paragraphs (b) and (c) do not prohibit a lawyer

from receiving a salary or partnership share

established by prior independent agreement, but that

lawyer may not receive compensation directly relating

the lawyer’s compensation to the fee in the matter in

which the lawyer is personally prohibited from

participating.

[8] Paragraphs (a) and (d) do not prohibit a lawyer

from jointly representing a private party and a

government agency when doing so is permitted by

rule 1.7 and is not otherwise prohibited by law.

[9] A lawyer serving as a public official or employee

of the government may participate in a matter in

which the lawyer participated substantially while in

private practice or non-governmental employment

only if: (i) the government agency gives its informed

written consent* as required by paragraph (d)(2)(i);

and (ii) the former client gives its informed written

consent* as required by rule 1.9, to which the lawyer

is subject by paragraph (d)(1).

[10] This rule is not intended to address whether in a

particular matter: (i) a lawyer’s conflict under

paragraph (d) will be imputed to other lawyers serving

in the same governmental agency; or (ii) the use of a

timely screen* will avoid that imputation. The

imputation and screening* rules for lawyers moving

from private practice into government service under

paragraph (d) are left to be addressed by case law and

its development. (See City & County of San Francisco

v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 847,

851-54 [43 Cal.Rptr.3d 776]; City of Santa Barbara v.

Superior Court (2004) 122 Cal.App.4th 17, 26-27 [18

Cal.Rptr.3d 403].) Regarding the standards for

recusals of prosecutors in criminal matters, see Penal

Code section 1424; Haraguchi v. Superior Court (2008)

43 Cal. 4th 706, 711-20 [76 Cal.Rptr.3d 250]; and

Hollywood v. Superior Court (2008) 43 Cal.4th 721,

727-35 [76 Cal.Rptr.3d 264]. Concerning prohibitions

against former prosecutors participating in matters in

which they served or participated in as prosecutor,

see, e.g., Business and Professions Code section 6131

and 18 United States Code section 207(a).

Rule 1.12 Former Judge, Arbitrator, Mediator,

or Other Third-Party Neutral

(a) Except as stated in paragraph (d), a lawyer shall

not represent anyone in connection with a matter in

which the lawyer participated personally and

substantially as a judge or other adjudicative officer,

judicial staff attorney or law clerk to such a person* or

as an arbitrator, mediator, or other third-party

neutral, unless all parties to the proceeding give

informed written consent.*

(b) A lawyer shall not seek employment from any

person* who is involved as a party or as lawyer for a

party, or with a law firm* for a party, in a matter in

which the lawyer is participating personally and

substantially as a judge or other adjudicative officer or

as an arbitrator, mediator, or other third-party

neutral. A lawyer serving as a judicial staff attorney or

law clerk to a judge or other adjudicative officer may

seek employment from a party, or with a lawyer or a

law firm* for a party, in a matter in which the staff

attorney or clerk is participating personally and

substantially, but only with the approval of the court.

paragraph (a), other lawyers in a firm* with which

that lawyer is associated may knowingly* undertake

or continue representation in the matter only if:

(1) the prohibition does not arise from the

lawyer’s service as a mediator or settlement

judge;

(2) the prohibited lawyer is timely screened*

from any participation in the matter and is

apportioned no part of the fee therefrom; and

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24 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

(3) written* notice is promptly given to the

parties and any appropriate tribunal* to enable

them to ascertain compliance with the

provisions of this rule.

(d) An arbitrator selected as a partisan of a party in

a multimember arbitration panel is not prohibited

from subsequently representing that party.

Comment

[1] Paragraphs (a) and (b) apply when a former

judge or other adjudicative officer, or a judicial staff

attorney or law clerk to such a person,* or an

arbitrator, mediator, or other third-party neutral, has

personally and substantially participated in the

matter. Personal participation includes both direct

participation and the supervision of a subordinate’s

participation, as may occur in a chambers with several

staff attorneys or law clerks. Substantial* participation

requires that the lawyer’s involvement was of

significance to the matter. Participation may be

substantial* even though it was not determinative of

the outcome of a particular case or matter. A finding

of substantiality should be based not only on the

effort devoted to the matter, but also on the

importance of the effort. Personal and substantial*

participation may occur when, for example, the

lawyer participated through decision,

recommendation, or the rendering of advice on a

particular case or matter. However, a judge who was

a member of a multi-member court, and thereafter

left judicial office to practice law, is not prohibited

from representing a client in a matter pending in the

court, but in which the former judge did not

participate, or acquire material confidential

information. The fact that a former judge exercised

administrative responsibility in a court also does not

prevent the former judge from acting as a lawyer in a

matter where the judge had previously exercised

remote or incidental administrative responsibility that

did not affect the merits, such as uncontested

procedural duties typically performed by a presiding

or supervising judge or justice. The term “adjudicative

officer” includes such officials as judges pro tempore,

referees, and special masters.

[2] Other law or codes of ethics governing third-

party neutrals may impose more stringent standards

of personal or imputed disqualification. (See rule 2.4.)

[3] Paragraph (c)(2) does not prohibit the screened*

lawyer from receiving a salary or partnership share

established by prior independent agreement, but that

lawyer may not receive compensation directly related

to the matter in which the lawyer is personally

prohibited from participating.

Rule 1.13 Organization as Client

(a) A lawyer employed or retained by an

organization shall conform his or her representation

to the concept that the client is the organization itself,

acting through its duly authorized directors, officers,

employees, members, shareholders, or other

constituents overseeing the particular engagement.

(b) If a lawyer representing an organization knows*

that a constituent is acting, intends to act or refuses

to act in a matter related to the representation in a

manner that the lawyer knows* or reasonably should

know* is (i) a violation of a legal obligation to the

organization or a violation of law reasonably*

imputable to the organization, and (ii) likely to result

in substantial* injury to the organization, the lawyer

shall proceed as is reasonably* necessary in the best

lawful interest of the organization. Unless the lawyer

reasonably believes* that it is not necessary in the

best lawful interest of the organization to do so, the

lawyer shall refer the matter to higher authority in the

organization, including, if warranted by the

circumstances, to the highest authority that can act

on behalf of the organization as determined by

applicable law.

the lawyer shall not reveal information protected by

Business and Professions Code section 6068,

subdivision (e).

(d) If, despite the lawyer’s actions in accordance

with paragraph (b), the highest authority that can act

on behalf of the organization insists upon action, or

fails to act, in a manner that is a violation of a legal

obligation to the organization or a violation of law

reasonably* imputable to the organization, and is

likely to result in substantial* injury to the

organization, the lawyer shall continue to proceed as

is reasonably* necessary in the best lawful interests of

the organization. The lawyer’s response may include

the lawyer’s right and, where appropriate, duty to

resign or withdraw in accordance with rule 1.16.

(e) A lawyer who reasonably believes* that he or

she has been discharged because of the lawyer’s

actions taken pursuant to paragraph (b), or who

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An asterisk (*) identifies a word or phrase defined in rule 1.0.1

resigns or withdraws under circumstances described

in paragraph (d), shall proceed as the lawyer

reasonably believes* necessary to assure that the

organization’s highest authority is informed of the

lawyer’s discharge, resignation, or withdrawal.

(f) In dealing with an organization’s constituents, a

lawyer representing the organization shall explain the

identity of the lawyer’s client whenever the lawyer

knows* or reasonably should know* that the

organization’s interests are adverse to those of the

constituent(s) with whom the lawyer is dealing.

(g) A lawyer representing an organization may also

represent any of its constituents, subject to the

provisions of rules 1.7, 1.8.2, 1.8.6, and 1.8.7. If the

organization’s consent to the dual representation is

required by any of these rules, the consent shall be

given by an appropriate official, constituent, or body

of the organization other than the individual who is to

be represented, or by the shareholders.

Comment

The Entity as the Client

[1] This rule applies to all forms of private, public

and governmental organizations. (See Comment [6].)

An organizational client can only act through

individuals who are authorized to conduct its affairs.

The identity of an organization’s constituents will

depend on its form, structure, and chosen

terminology. For example, in the case of a

corporation, constituents include officers, directors,

employees and shareholders. In the case of other

organizational forms, constituents include the

equivalents of officers, directors, employees, and

shareholders. For purposes of this rule, any agent or

fiduciary authorized to act on behalf of an

organization is a constituent of the organization.

[2] A lawyer ordinarily must accept decisions an

organization’s constituents make on behalf of the

organization, even if the lawyer questions their utility

or prudence. It is not within the lawyer’s province to

make decisions on behalf of the organization

concerning policy and operations, including ones

entailing serious risk. A lawyer, however, has a duty

to inform the client of significant developments

related to the representation under Business and

Professions Code section 6068, subdivision (m) and

rule 1.4. Even when a lawyer is not obligated to

proceed in accordance with paragraph (b), the lawyer

may refer to higher authority, including the

organization’s highest authority, matters that the

lawyer reasonably believes* are sufficiently important

to refer in the best interest of the organization subject

to Business and Professions Code section 6068,

subdivision (e) and rule 1.6.

[3] Paragraph (b) distinguishes between knowledge

of the conduct and knowledge of the consequences of

that conduct. When a lawyer knows* of the conduct,

the lawyer’s obligations under paragraph (b) are

triggered when the lawyer knows* or reasonably

should know* that the conduct is (i) a violation of a

legal obligation to the organization, or a violation of

law reasonably* imputable to the organization, and

(ii) likely to result in substantial* injury to the

organization.

[4] In determining how to proceed under paragraph

(b), the lawyer should consider the seriousness of the

violation and its potential consequences, the

responsibility in the organization and the apparent

motivation of the person* involved, the policies of the

organization concerning such matters, and any other

relevant considerations. Ordinarily, referral to a

higher authority would be necessary. In some

circumstances, however, the lawyer may ask the

constituent to reconsider the matter. For example, if

the circumstances involve a constituent’s innocent

misunderstanding of law and subsequent acceptance

of the lawyer’s advice, the lawyer may reasonably*

conclude that the best interest of the organization

does not require that the matter be referred to higher

authority. If a constituent persists in conduct contrary

to the lawyer’s advice, it will be necessary for the

lawyer to take steps to have the matter reviewed by a

higher authority in the organization. If the matter is

of sufficient seriousness and importance or urgency to

the organization, referral to higher authority in the

organization may be necessary even if the lawyer has

not communicated with the constituent. For the

responsibility of a subordinate lawyer in representing

an organization, see rule 5.2.

[5] In determining how to proceed in the best lawful

interests of the organization, a lawyer should consider

the extent to which the organization should be

informed of the circumstances, the actions taken by

the organization with respect to the matter and the

direction the lawyer has received from the

organizational client.

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An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Governmental Organizations

[6] It is beyond the scope of this rule to define

precisely the identity of the client and the lawyer’s

obligations when representing a governmental

agency. Although in some circumstances the client

may be a specific agency, it may also be a branch of

government or the government as a whole. In a

matter involving the conduct of government officials,

a government lawyer may have authority under

applicable law to question such conduct more

extensively than that of a lawyer for a private

organization in similar circumstances. Duties of

lawyers employed by the government or lawyers in

military service may be defined by statutes and

regulations. In addition, a governmental organization

may establish internal organizational rules and

procedures that identify an official, agency,

organization, or other person* to serve as the

designated recipient of whistle-blower reports from

the organization’s lawyers, consistent with Business

and Professions Code section 6068, subdivision (e)

and rule 1.6. This rule is not intended to limit that

authority.

Rule 1.14 [Reserved]

Rule 1.15 Safekeeping Funds and Property of

Clients and Other Persons*

(a) All funds received or held by a lawyer or law

firm* for the benefit of a client, or other person* to

whom the lawyer owes a contractual, statutory, or

other legal duty, including advances for fees, costs and

expenses, shall be deposited in one or more

identifiable bank accounts labeled “Trust Account” or

words of similar import, maintained in the State of

California, or, with written* consent of the client, in

any other jurisdiction where there is a substantial*

relationship between the client or the client’s business

and the other jurisdiction.

(b) Notwithstanding paragraph (a), a flat fee paid in

advance for legal services may be deposited in a

lawyer’s or law firm’s operating account, provided:

(1) the lawyer or law firm* discloses to the

client in writing* (i) that the client has a right

under paragraph (a) to require that the flat fee

be deposited in an identified trust account until

the fee is earned, and (ii) that the client is

entitled to a refund of any amount of the fee that

has not been earned in the event the

representation is terminated or the services for

which the fee has been paid are not completed;

and

(2) if the flat fee exceeds $1,000.00, the client’s

agreement to deposit the flat fee in the lawyer’s

operating account and the disclosures required

by paragraph (b)(1) are set forth in a writing*

signed by the client.

shall not be deposited or otherwise commingled with

funds held in a trust account except:

(1) funds reasonably* sufficient to pay bank

charges; and

(2) funds belonging in part to a client or other

person* and in part presently or potentially to

the lawyer or the law firm,* in which case the

portion belonging to the lawyer or law firm*

must be withdrawn at the earliest reasonable*

time after the lawyer or law firm’s interest in that

portion becomes fixed. However, if a client or

other person* disputes the lawyer or law firm’s

right to receive a portion of trust funds, the

disputed portion shall not be withdrawn until the

dispute is finally resolved.

(d) A lawyer shall:

(1) absent good cause, notify a client or other

person* no later than 14 days of the receipt of

funds, securities, or other property in which the

lawyer knows* or reasonably should know* the

client or other person* has an interest;

(2) identify and label securities and properties

of a client or other person* promptly upon

receipt and place them in a safe deposit box or

other place of safekeeping as soon as practicable;

(3) maintain complete records of all funds,

securities, and other property of a client or other

person* coming into the possession of the lawyer

or law firm;*

(4) promptly account in writing* to the client

or other person* for whom the lawyer holds

funds or property;

(5) preserve records of all funds and property

held by a lawyer or law firm* under this rule for a

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2023 CURRENT RULES 27

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

period of no less than five years after final

appropriate distribution of such funds or

property;

(6) comply with any order for an audit of such

records issued pursuant to the Rules of

Procedure of the State Bar; and

(7) promptly distribute any undisputed funds

or property in the possession of the lawyer or

law firm* that the client or other person* is

entitled to receive.

(e) The Board of Trustees of the State Bar shall have

the authority to formulate and adopt standards as to

what “records” shall be maintained by lawyers and law

firms* in accordance with subparagraph (d)(3). The

standards formulated and adopted by the Board, as

from time to time amended, shall be effective and

binding on all lawyers.

(f) For purposes of determining a lawyer’s

compliance with paragraph (d)(7), unless the lawyer,

and the client or other person* agree in writing that

the funds or property will continue to be held by the

lawyer, there shall be a rebuttable presumption

affecting the burden of proof as defined in Evidence

Code sections 605 and 606 that a violation of

paragraph (d)(7) has occurred if the lawyer, absent

good cause, fails to distribute undisputed funds or

property within 45-days of the date when the funds

become undisputed as defined by paragraph (g). This

presumption may be rebutted by proof by a

preponderance of evidence that there was good cause

for not distributing funds within 45 days of the date

when the funds or property became undisputed as

defined in paragraph (g).

(g) As used in this rule, “undisputed funds or

property” refers to funds or property, or a portion of

any such funds or property, in the possession of a

lawyer or law firm* where the lawyer knows* or

reasonably should know* that the ownership interest

of the client or other person* in the funds or property,

or any portion thereof, has become fixed and there are

no unresolved disputes as to the client’s or other

person’s* entitlement to receive the funds or

property.

Standards:

Pursuant to this rule, the Board of Trustees of the

State Bar adopted the following standards, effective

November 1, 2018, as to what “records” shall be

maintained by lawyers and law firms* in accordance

with paragraph (d)(3).

(1) A lawyer shall, from the date of receipt of

funds of the client or other person* through the

period ending five years from the date of

appropriate disbursement of such funds,

maintain:

(a) a written* ledger for each client or

other person* on whose behalf funds are

held that sets forth:

(i) the name of such client or other

person;*

(ii) the date, amount and source of

all funds received on behalf of such

client or other person;*

(iii) the date, amount, payee and

purpose of each disbursement made

on behalf of such client or other

person;* and

(iv) the current balance for such

client or other person;*

(b) a written* journal for each bank

account that sets forth:

(i) the name of such account;

(ii) the date, amount and client

affected by each debit and credit; and

(iii) the current balance in such

account;

checks for each bank account; and

(d) each monthly reconciliation

(balancing) of (a), (b), and (c).

(2) A lawyer shall, from the date of receipt of

all securities and other properties held for the

benefit of client or other person* through the

period ending five years from the date of

appropriate disbursement of such securities and

other properties, maintain a written* journal that

specifies:

(a) each item of security and property

held;

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28 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

(b) the person* on whose behalf the

security or property is held;

property;

(d) the date of distribution of the security

or property; and

(e) person* to whom the security or

property was distributed.

Comment

[1] Whether a lawyer owes a contractual, statutory

or other legal duty under paragraph (a) to hold funds

on behalf of a person* other than a client in situations

where client funds are subject to a third-party lien will

depend on the relationship between the lawyer and

the third-party, whether the lawyer has assumed a

contractual obligation to the third person* and

whether the lawyer has an independent obligation to

honor the lien under a statute or other law. In certain

circumstances, a lawyer may be civilly liable when the

lawyer has notice of a lien and disburses funds in

contravention of the lien. (See Kaiser Foundation

Health Plan, Inc. v. Aguiluz (1996) 47 Cal.App.4th 302

[54 Cal.Rptr.2d 665].) However, civil liability by itself

does not establish a violation of this rule. (Compare

Johnstone v. State Bar of California (1966) 64 Cal.2d

153, 155-156 [49 Cal.Rptr. 97] [“‘When an attorney

assumes a fiduciary relationship and violates his duty

in a manner that would justify disciplinary action if the

relationship had been that of attorney and client, he

may properly be disciplined for his misconduct.’”] with

Crooks v. State Bar (1970) 3 Cal.3d 346, 358 [90

Cal.Rptr. 600] [lawyer who agrees to act as escrow or

stakeholder for a client and a third-party owes a duty

to the nonclient with regard to held funds].)

[2] As used in this rule, “advances for fees” means a

payment intended by the client as an advance

payment for some or all of the services that the lawyer

is expected to perform on the client’s behalf. With

respect to the difference between a true retainer and

a flat fee, which is one type of advance fee, see rule

1.5(d) and (e). Subject to rule 1.5, a lawyer or law

firm* may enter into an agreement that defines when

or how an advance fee is earned and may be

withdrawn from the client trust account.

[3] Absent written* disclosure and the client’s

agreement in a writing* signed by the client as

provided in paragraph (b), a lawyer must deposit a flat

fee paid in advance of legal services in the lawyer’s

trust account. Paragraph (b) does not apply to advance

payment for costs and expenses. Paragraph (b) does

not alter the lawyer’s obligations under paragraph (d)

or the lawyer’s burden to establish that the fee has

been earned.

[4] Subparagraph (d)(7) is not intended to apply to a

fee or expense the client has agreed to pay in advance,

or the client file, or any other property that the client

or other person* has agreed in writing that the lawyer

will keep or maintain. Regarding a lawyer’s refund of a

fee or expense paid in advance, see rule 1.16(e)(2).

Regarding the release of a client’s file to the client, see

rule 1.16(e)(1).

[5] Upon rebuttal by proof by a preponderance of

the evidence of the presumption set forth in

paragraph (f), a violation of paragraph (d)(7) must be

established by clear and convincing evidence without

the benefit of the rebuttable presumption.

[6] Whether or not the rebuttable presumption in

paragraph (f) applies, a lawyer must still comply will all

other applicable provisions of this rule. This includes a

lawyer’s duty to take diligent steps to initiate and

complete the resolution of disputes concerning a

client’s or other person’s* entitlement to funds or

property received by a lawyer.

[7] Under paragraph (g), possible disputes requiring

resolution may include, but are not limited to, disputes

concerning entitlement to funds arising from: medical

liens; statutory liens; prior attorney liens; costs or

expenses; attorney fees; a bank’s policies and fees for

clearing a check or draft; any applicable conditions on

entitlement such as a plaintiff’s execution of a release

and dismissal; or any legal proceeding, such as an

interpleader action, concerning the entitlement of any

person to receive all or a portion of the funds or

property.

[Publisher’s Note: Rule 1.15 was amended by order

of the Supreme Court, effective January 1, 2023.]

Rule 1.16 Declining or Terminating

Representation

(a) Except as stated in paragraph (c), a lawyer shall

not represent a client or, where representation has

commenced, shall withdraw from the representation

of a client if:

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2023 CURRENT RULES 29

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

(1) the lawyer knows* or reasonably should

know* that the client is bringing an action,

conducting a defense, asserting a position in

litigation, or taking an appeal, without probable

cause and for the purpose of harassing or

maliciously injuring any person;*

(2) the lawyer knows* or reasonably should

know* that the representation will result in

violation of these rules or of the State Bar Act;

(3) the lawyer’s mental or physical condition

renders it unreasonably difficult to carry out the

representation effectively; or

(4) the client discharges the lawyer.

(b) Except as stated in paragraph (c), a lawyer may

withdraw from representing a client if:

(1) the client insists upon presenting a claim or

defense in litigation, or asserting a position or

making a demand in a non-litigation matter, that

is not warranted under existing law and cannot

be supported by good faith argument for an

extension, modification, or reversal of existing

law;

(2) the client either seeks to pursue a criminal

or fraudulent* course of conduct or has used the

lawyer’s services to advance a course of conduct

that the lawyer reasonably believes* was a

crime or fraud;*

(3) the client insists that the lawyer pursue a

course of conduct that is criminal or fraudulent;*

(4) the client by other conduct renders it

unreasonably difficult for the lawyer to carry out

the representation effectively;

(5) the client breaches a material term of an

agreement with, or obligation, to the lawyer

relating to the representation, and the lawyer

has given the client a reasonable* warning after

the breach that the lawyer will withdraw unless

the client fulfills the agreement or performs the

obligation;

(6) the client knowingly* and freely assents to

termination of the representation;

(7) the inability to work with co-counsel

indicates that the best interests of the client

likely will be served by withdrawal;

(8) the lawyer’s mental or physical condition

renders it difficult for the lawyer to carry out the

representation effectively;

(9) a continuation of the representation is

likely to result in a violation of these rules or the

State Bar Act; or

(10) the lawyer believes* in good faith, in a

proceeding pending before a tribunal,* that the

tribunal* will find the existence of other good

cause for withdrawal.

is required by the rules of a tribunal,* a lawyer shall

not terminate a representation before that tribunal*

without its permission.

(d) A lawyer shall not terminate a representation

until the lawyer has taken reasonable* steps to avoid

reasonably* foreseeable prejudice to the rights of the

client, such as giving the client sufficient notice to

permit the client to retain other counsel, and

complying with paragraph (e).

(e) Upon the termination of a representation for

any reason:

(1) subject to any applicable protective order,

non-disclosure agreement, statute or regulation,

the lawyer promptly shall release to the client, at

the request of the client, all client materials and

property. “Client materials and property”

includes correspondence, pleadings, deposition

transcripts, experts’ reports and other writings,*

exhibits, and physical evidence, whether in

tangible, electronic or other form, and other

items reasonably* necessary to the client’s

representation, whether the client has paid for

them or not; and

(2) the lawyer promptly shall refund any part

of a fee or expense paid in advance that the

lawyer has not earned or incurred. This

provision is not applicable to a true retainer fee

paid solely for the purpose of ensuring the

availability of the lawyer for the matter.

Comment

[1] This rule applies, without limitation, to a sale of

a law practice under rule 1.17. A lawyer can be

subject to discipline for improperly threatening to

terminate a representation. (See In the Matter of

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30 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Shalant (Review Dept. 2005) 4 Cal. State Bar Ct. Rptr.

829, 837.)

[2] When a lawyer withdraws from the

representation of a client in a particular matter under

paragraph (a) or (b), the lawyer might not be

obligated to withdraw from the representation of the

same client in other matters. For example, a lawyer

might be obligated under paragraph (a)(1) to

withdraw from representing a client because the

lawyer has a conflict of interest under rule 1.7, but

that conflict might not arise in other representations

of the client.

[3] Withdrawal under paragraph (a)(1) is not

mandated where a lawyer for the defendant in a

criminal proceeding, or the respondent in a

proceeding that could result in incarceration, or

involuntary commitment or confinement, defends the

proceeding by requiring that every element of the

case be established. (See rule 3.1(b).)

[4] Lawyers must comply with their obligations to

their clients under Business and Professions Code

section 6068, subdivision (e) and rule 1.6, and to the

courts under rule 3.3 when seeking permission to

withdraw under paragraph (c). If a tribunal* denies a

lawyer permission to withdraw, the lawyer is

obligated to comply with the tribunal’s* order. (See

Bus. & Prof. Code, §§ 6068, subd. (b) and 6103.) This

duty applies even if the lawyer sought permission to

withdraw because of a conflict of interest. Regarding

withdrawal from limited scope representations that

involve court appearances, compliance with

applicable California Rules of Court concerning limited

scope representation satisfies paragraph (c).

[5] Statutes may prohibit a lawyer from releasing

information in the client materials and property under

certain circumstances. (See, e.g., Pen. Code, §§ 1054.2

and 1054.10.) A lawyer in certain criminal matters

may be required to retain a copy of a former client’s

file for the term of his or her imprisonment. (See, Pen.

Code, § 1054.9.)

[6] Paragraph (e)(1) does not prohibit a lawyer from

making, at the lawyer’s own expense, and retaining

copies of papers released to the client, or to prohibit a

claim for the recovery of the lawyer’s expense in any

subsequent legal proceeding.

[Publisher’s Note: Comment [5] was amended by

order of the Supreme Court, effective June 1, 2020.]

Rule 1.17 Sale of a Law Practice

All or substantially* all of the law practice of a lawyer,

living or deceased, including goodwill, may be sold to

another lawyer or law firm* subject to all the

following conditions:

(a) Fees charged to clients shall not be increased

solely by reason of the sale.

(b) If the sale contemplates the transfer of

responsibility for work not yet completed or

responsibility for client files or information protected

by Business and Professions Code section 6068,

subdivision (e)(1), then;

(1) if the seller is deceased, or has a

conservator or other person* acting in a

representative capacity, and no lawyer has been

appointed to act for the seller pursuant to

Business and Professions Code section 6180.5,

then prior to the transfer;

(i) the purchaser shall cause a written*

notice to be given to each client whose

matter is included in the sale, stating that

the interest in the law practice is being

transferred to the purchaser; that the

client has the right to retain other counsel;

that the client may take possession of any

client materials and property, as required

by rule 1.16(e)(1); and that if no response

is received to the notice within 90 days

after it is sent, or if the client’s rights would

be prejudiced by a failure of the purchaser

to act during that time, the purchaser may

act on behalf of the client until otherwise

notified by the client, and

(ii) the purchaser shall obtain the

written* consent of the client. If

reasonable* efforts have been made to

locate the client and no response to the

paragraph (b)(1)(i) notice is received within

90 days, consent shall be presumed until

otherwise notified by the client.

(2) in all other circumstances, not less than 90

days prior to the transfer;

(i) the seller, or the lawyer appointed to

act for the seller pursuant to Business and

Professions Code section 6180.5, shall

cause a written* notice to be given to each

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An asterisk (*) identifies a word or phrase defined in rule 1.0.1

client whose matter is included in the sale,

stating that the interest in the law practice

is being transferred to the purchaser; that

the client has the right to retain other

counsel; that the client may take

possession of any client materials and

property, as required by rule 1.16(e)(1);

and that if no response is received to the

notice within 90 days after it is sent, or if

the client’s rights would be prejudiced by a

failure of the purchaser to act during that

time, the purchaser may act on behalf of

the client until otherwise notified by the

client, and

(ii) the seller, or the lawyer appointed to

act for the seller pursuant to Business and

Professions Code section 6180.5, shall

obtain the written* consent of the client

prior to the transfer. If reasonable* efforts

have been made to locate the client and no

response to the paragraph (b)(2)(i) notice is

received within 90 days, consent shall be

presumed until otherwise notified by the

client.

tribunal* in which a matter is pending, all steps

necessary to substitute a lawyer shall be taken.

(d) The purchaser shall comply with the applicable

requirements of rules 1.7 and 1.9.

(e) Confidential information shall not be disclosed

to a nonlawyer in connection with a sale under this

rule.

(f) This rule does not apply to the admission to or

retirement from a law firm,* retirement plans and

similar arrangements, or sale of tangible assets of a

law practice.

Comment

[1] The requirement that the sale be of “all or

substantially* all of the law practice of a lawyer”

prohibits the sale of only a field or area of practice or

the seller’s practice in a geographical area or in a

particular jurisdiction. The prohibition against the

sale of less than all or substantially* all of a practice

protects those clients whose matters are less lucrative

and who might find it difficult to secure other counsel

if a sale could be limited to substantial* fee-

generating matters. The purchasers are required to

undertake all client matters sold in the transaction,

subject to client consent. This requirement is

satisfied, however, even if a purchaser is unable to

undertake a particular client matter because of a

conflict of interest.

[2] Under paragraph (a), the purchaser must honor

existing arrangements between the seller and the

client as to fees and scope of work and the sale may

not be financed by increasing fees charged for client

matters transferred through the sale. However, fee

increases or other changes to the fee arrangements

might be justified by other factors, such as

modifications of the purchaser’s responsibilities, the

passage of time, or reasonable* costs that were not

addressed in the original agreement. Any such

modifications must comply with rules 1.4 and 1.5 and

other relevant provisions of these rules and the State

Bar Act.

[3] Transfer of individual client matters, where

permitted, is governed by rule 1.5.1. Payment of a fee

to a nonlawyer broker for arranging the sale or

purchase of a law practice is governed by rule 5.4(a).

Rule 1.18 Duties to Prospective Client

(a) A person* who, directly or through an authorized

representative, consults a lawyer for the purpose of

retaining the lawyer or securing legal service or advice

from the lawyer in the lawyer’s professional capacity,

is a prospective client.

(b) Even when no lawyer-client relationship ensues,

a lawyer who has communicated with a prospective

client shall not use or reveal information protected by

Business and Professions Code section 6068,

subdivision (e) and rule 1.6 that the lawyer learned as

a result of the consultation, except as rule 1.9 would

permit with respect to information of a former client.

represent a client with interests materially adverse to

those of a prospective client in the same or a

substantially related matter if the lawyer received

from the prospective client information protected by

Business and Professions Code section 6068,

subdivision (e) and rule 1.6 that is material to the

matter, except as provided in paragraph (d). If a

lawyer is prohibited from representation under this

paragraph, no lawyer in a firm* with which that lawyer

is associated may knowingly* undertake or continue

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representation in such a matter, except as provided in

paragraph (d).

(d) When the lawyer has received information that

prohibits representation as provided in paragraph (c),

representation of the affected client is permissible if:

(1) both the affected client and the prospective

client have given informed written consent,* or

(2) the lawyer who received the information

took reasonable* measures to avoid exposure to

more information than was reasonably*

necessary to determine whether to represent the

prospective client; and

(i) the prohibited lawyer is timely

screened* from any participation in the

matter and is apportioned no part of the

fee therefrom; and

(ii) written* notice is promptly given to

the prospective client to enable the

prospective client to ascertain compliance

with the provisions of this rule.

Comment

[1] As used in this rule, a prospective client includes

a person’s* authorized representative. A lawyer’s

discussions with a prospective client can be limited in

time and depth and leave both the prospective client

and the lawyer free, and sometimes required, to

proceed no further. Although a prospective client’s

information is protected by Business and Professions

Code section 6068, subdivision (e) and rule 1.6 the

same as that of a client, in limited circumstances

provided under paragraph (d), a law firm* is permitted

to accept or continue representation of a client with

interests adverse to the prospective client. This rule is

not intended to limit the application of Evidence Code

section 951 (defining “client” within the meaning of

the Evidence Code).

[2] Not all persons* who communicate information

to a lawyer are entitled to protection under this rule.

A person* who by any means communicates

information unilaterally to a lawyer, without

reasonable* expectation that the lawyer is willing to

discuss the possibility of forming a lawyer-client

relationship or provide legal advice is not a

“prospective client” within the meaning of paragraph

(a). In addition, a person* who discloses information

to a lawyer after the lawyer has stated his or her

unwillingness or inability to consult with the person*

(People v. Gionis (1995) 9 Cal.4th 1196 [40 Cal.Rptr.2d

456]), or who communicates information to a lawyer

without a good faith intention to seek legal advice or

representation, is not a prospective client within the

meaning of paragraph (a).

[3] In order to avoid acquiring information from a

prospective client that would prohibit representation

as provided in paragraph (c), a lawyer considering

whether or not to undertake a new matter must limit

the initial interview to only such information as

reasonably* appears necessary for that purpose.

[4] Under paragraph (c), the prohibition in this rule is

imputed to other lawyers in a law firm* as provided in

rule 1.10. However, under paragraph (d)(1), the

consequences of imputation may be avoided if the

informed written consent* of both the prospective

and affected clients is obtained. (See rule 1.0.1(e-1)

[informed written consent].) In the alternative,

imputation may be avoided if the conditions of

paragraph (d)(2) are met and all prohibited lawyers are

timely screened* and written* notice is promptly

given to the prospective client. Paragraph (d)(2)(i) does

not prohibit the screened* lawyer from receiving a

salary or partnership share established by prior

independent agreement, but that lawyer may not

receive compensation directly related to the matter in

which the lawyer is prohibited.

[5] Notice under paragraph (d)(2)(ii) must include a

general description of the subject matter about which

the lawyer was consulted, and the screening*

procedures employed.

CHAPTER 2. COUNSELOR

Rule 2.1 Advisor

In representing a client, a lawyer shall exercise

independent professional judgment and render

candid advice.

Comment

[1] A lawyer ordinarily has no duty to initiate

investigation of a client’s affairs or to give advice that

the client has indicated is unwanted, but a lawyer may

initiate advice to a client when doing so appears to be

in the client’s interest.

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An asterisk (*) identifies a word or phrase defined in rule 1.0.1

[2] This rule does not preclude a lawyer who

renders advice from referring to considerations other

than the law, such as moral, economic, social and

political factors that may be relevant to the client’s

situation.

Rule 2.2 [Reserved]

Rule 2.3 [Reserved]

Rule 2.4 Lawyer as Third-Party Neutral

(a) A lawyer serves as a third-party neutral when

the lawyer assists two or more persons* who are not

clients of the lawyer to reach a resolution of a dispute,

or other matter, that has arisen between them.

Service as a third-party neutral may include service as

an arbitrator, a mediator or in such other capacity as

will enable the lawyer to assist the parties to resolve

the matter.

(b) A lawyer serving as a third-party neutral shall

inform unrepresented parties that the lawyer is not

representing them. When the lawyer knows* or

reasonably should know* that a party does not

understand the lawyer’s role in the matter, the lawyer

shall explain the difference between the lawyer’s role

as a third-party neutral and a lawyer’s role as one who

represents a client.

Comment

[1] In serving as a third-party neutral, the lawyer

may be subject to court rules or other law that apply

either to third-party neutrals generally or to lawyers

serving as third-party neutrals. Lawyer neutrals may

also be subject to various codes of ethics, such as the

Judicial Council Standards for Mediators in Court

Connected Mediation Programs or the Judicial Council

Ethics Standards for Neutral Arbitrators in Contractual

Arbitration.

[2] A lawyer who serves as a third-party neutral

subsequently may be asked to serve as a lawyer

representing a client in the same matter. The

conflicts of interest that arise for both the individual

lawyer and the lawyer’s law firm* are addressed in

rule 1.12.

[3] This rule is not intended to apply to temporary

judges, referees or court-appointed arbitrators. (See

rule 2.4.1.)

Rule 2.4.1 Lawyer as Temporary Judge,

Referee, or Court-Appointed Arbitrator

A lawyer who is serving as a temporary judge, referee,

or court-appointed arbitrator, and is subject to canon

6D of the California Code of Judicial Ethics, shall

comply with the terms of that canon.

Comment

[1] This rule is intended to permit the State Bar to

discipline lawyers who violate applicable portions of

the California Code of Judicial Ethics while acting in a

judicial capacity pursuant to an order or appointment

by a court.

[2] This rule is not intended to apply to a lawyer

serving as a third-party neutral in a mediation or a

settlement conference, or as a neutral arbitrator

pursuant to an arbitration agreement. (See rule 2.4.)

CHAPTER 3. ADVOCATE

Rule 3.1 Meritorious Claims and Contentions

(a) A lawyer shall not:

(1) bring or continue an action, conduct a

defense, assert a position in litigation, or take an

appeal, without probable cause and for the

purpose of harassing or maliciously injuring any

person;* or

(2) present a claim or defense in litigation that

is not warranted under existing law, unless it can

be supported by a good faith argument for an

extension, modification, or reversal of the

existing law.

(b) A lawyer for the defendant in a criminal

proceeding, or the respondent in a proceeding that

could result in incarceration, or involuntary

commitment or confinement, may nevertheless

defend the proceeding by requiring that every

element of the case be established.

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Rule 3.2 Delay of Litigation

In representing a client, a lawyer shall not use means

that have no substantial* purpose other than to delay

or prolong the proceeding or to cause needless

expense.

Comment

See rule 1.3 with respect to a lawyer’s duty to act with

reasonable* diligence and rule 3.1(b) with respect to a

lawyer’s representation of a defendant in a criminal

proceeding. See also Business and Professions Code

section 6128, subdivision (b).

Rule 3.3 Candor Toward the Tribunal*

(a) A lawyer shall not:

(1) knowingly* make a false statement of fact

or law to a tribunal* or fail to correct a false

statement of material fact or law previously

made to the tribunal* by the lawyer;

(2) fail to disclose to the tribunal* legal

authority in the controlling jurisdiction known*

to the lawyer to be directly adverse to the

position of the client and not disclosed by

opposing counsel, or knowingly* misquote to a

tribunal* the language of a book, statute,

decision or other authority; or

(3) offer evidence that the lawyer knows* to

be false. If a lawyer, the lawyer’s client, or a

witness called by the lawyer, has offered

material evidence, and the lawyer comes to

know* of its falsity, the lawyer shall take

reasonable* remedial measures, including, if

necessary, disclosure to the tribunal,* unless

disclosure is prohibited by Business and

Professions Code section 6068, subdivision (e)

and rule 1.6. A lawyer may refuse to offer

evidence, other than the testimony of a

defendant in a criminal matter, that the lawyer

reasonably believes* is false.

(b) A lawyer who represents a client in a

proceeding before a tribunal* and who knows* that

a person* intends to engage, is engaging or has

engaged in criminal or fraudulent* conduct related

to the proceeding shall take reasonable* remedial

measures to the extent permitted by Business and

Professions Code section 6068, subdivision (e) and

rule 1.6.

continue to the conclusion of the proceeding.

(d) In an ex parte proceeding where notice to the

opposing party in the proceeding is not required or

given and the opposing party is not present, a lawyer

shall inform the tribunal* of all material facts

known* to the lawyer that will enable the tribunal*

to make an informed decision, whether or not the

facts are adverse to the position of the client.

Comment

[1] This rule governs the conduct of a lawyer in

proceedings of a tribunal,* including ancillary

proceedings such as a deposition conducted

pursuant to a tribunal’s* authority. See rule

1.0.1(m) for the definition of “tribunal.”

[2] The prohibition in paragraph (a)(1) against

making false statements of law or failing to correct a

material misstatement of law includes citing as

authority a decision that has been overruled or a

statute that has been repealed or declared

unconstitutional, or failing to correct such a citation

previously made to the tribunal* by the lawyer.

Legal Argument

[3] Legal authority in the controlling jurisdiction

may include legal authority outside the jurisdiction

in which the tribunal* sits, such as a federal statute

or case that is determinative of an issue in a state

court proceeding or a Supreme Court decision that is

binding on a lower court.

[4] The duties stated in paragraphs (a) and (b)

apply to all lawyers, including defense counsel in

criminal cases. If a lawyer knows* that a client

intends to testify falsely or wants the lawyer to

introduce false evidence, the lawyer should seek to

persuade the client that the evidence should not be

offered and, if unsuccessful, must refuse to offer the

false evidence. If a criminal defendant insists on

testifying, and the lawyer knows* that the testimony

will be false, the lawyer may offer the testimony in a

narrative form if the lawyer made reasonable*

efforts to dissuade the client from the unlawful

course of conduct and the lawyer has sought

permission from the court to withdraw as required

by rule 1.16. (See, e.g., People v. Johnson (1998) 62

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2023 CURRENT RULES 35

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Cal.App.4th 608 [72 Cal.Rptr.2d 805]; People v.

Jennings (1999) 70 Cal.App.4th 899 [83 Cal.Rptr.2d

33].) The obligations of a lawyer under these rules

and the State Bar Act are subordinate to applicable

constitutional provisions.

Remedial Measures

[5] Reasonable* remedial measures under

paragraphs (a)(3) and (b) refer to measures that are

available under these rules and the State Bar Act,

and which a reasonable* lawyer would consider

appropriate under the circumstances to comply with

the lawyer’s duty of candor to the tribunal.* (See,

e.g., rules 1.2.1, 1.4(a)(4), 1.16(a), 8.4; Bus. & Prof.

Code, §§ 6068, subd. (d), 6128.) Remedial measures

also include explaining to the client the lawyer’s

obligations under this rule and, where applicable,

the reasons for the lawyer’s decision to seek

permission from the tribunal* to withdraw, and

remonstrating further with the client to take

corrective action that would eliminate the need for

the lawyer to withdraw. If the client is an

organization, the lawyer should also consider the

provisions of rule 1.13. Remedial measures do not

include disclosure of client confidential information,

which the lawyer is required to protect under

Business and Professions Code section 6068,

subdivision (e) and rule 1.6.

Duration of Obligation

[6] A proceeding has concluded within the

meaning of this rule when a final judgment in the

proceeding has been affirmed on appeal or the time

for review has passed. A prosecutor may have

obligations that go beyond the scope of this rule.

(See, e.g., rule 3.8(f) and (g).)

Ex Parte Communications

[7] Paragraph (d) does not apply to ex parte

communications that are not otherwise prohibited

by law or the tribunal.*

Withdrawal

[8] A lawyer’s compliance with the duty of candor

imposed by this rule does not require that the

lawyer withdraw from the representation. The

lawyer may, however, be required by rule 1.16 to

seek permission of the tribunal* to withdraw if the

lawyer’s compliance with this rule results in a

deterioration of the lawyer-client relationship such

that the lawyer can no longer competently and

diligently represent the client, or where continued

employment will result in a violation of these rules.

A lawyer must comply with Business and Professions

Code section 6068, subdivision (e) and rule 1.6 with

respect to a request to withdraw that is premised on

a client’s misconduct.

[9] In addition to this rule, lawyers remain bound

by Business and Professions Code sections 6068,

subdivision (d) and 6106.

Rule 3.4 Fairness to Opposing Party and

Counsel

A lawyer shall not:

(a) unlawfully obstruct another party’s access to

evidence, including a witness, or unlawfully alter,

destroy or conceal a document or other material

having potential evidentiary value. A lawyer shall not

counsel or assist another person* to do any such act;

(b) suppress any evidence that the lawyer or the

lawyer’s client has a legal obligation to reveal or to

produce;

testify falsely, or offer an inducement to a witness

that is prohibited by law;

(d) directly or indirectly pay, offer to pay, or

acquiesce in the payment of compensation to a

witness contingent upon the content of the witness’s

testimony or the outcome of the case. Except where

prohibited by law, a lawyer may advance, guarantee,

or acquiesce in the payment of:

(1) expenses reasonably* incurred by a

witness in attending or testifying;

(2) reasonable* compensation to a witness for

loss of time in attending or testifying; or

(3) a reasonable* fee for the professional

services of an expert witness;

(e) advise or directly or indirectly cause a person* to

secrete himself or herself or to leave the jurisdiction

of a tribunal* for the purpose of making that person*

unavailable as a witness therein;

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(f) knowingly* disobey an obligation under the

rules of a tribunal* except for an open refusal based

on an assertion that no valid obligation exists; or

(g) in trial, assert personal knowledge of facts in

issue except when testifying as a witness, or state a

personal opinion as to the guilt or innocence of an

accused.

Comment

[1] Paragraph (a) applies to evidentiary material

generally, including computerized information. It is a

criminal offense to destroy material for purpose of

impairing its availability in a pending proceeding or

one whose commencement can be foreseen. (See,

e.g., Pen. Code, § 135; 18 U.S.C. §§ 1501-1520.)

Falsifying evidence is also generally a criminal offense.

(See, e.g., Pen. Code, § 132; 18 U.S.C. § 1519.)

Applicable law may permit a lawyer to take temporary

possession of physical evidence of client crimes for

the purpose of conducting a limited examination that

will not alter or destroy material characteristics of the

evidence. Applicable law may require a lawyer to turn

evidence over to the police or other prosecuting

authorities, depending on the circumstances. (See

People v. Lee (1970) 3 Cal.App.3d 514, 526 [83

Cal.Rptr. 715]; People v. Meredith (1981) 29 Cal.3d

682 [175 Cal.Rptr. 612].)

[2] A violation of a civil or criminal discovery rule or

statute does not by itself establish a violation of this

rule. See rule 3.8 for special disclosure responsibilities

of a prosecutor.

Rule 3.5 Contact with Judges, Officials,

Employees, and Jurors

(a) Except as permitted by statute, an applicable

code of judicial ethics or code of judicial conduct, or

standards governing employees of a tribunal,* a

lawyer shall not directly or indirectly give or lend

anything of value to a judge, official, or employee of a

tribunal.* This rule does not prohibit a lawyer from

contributing to the campaign fund of a judge or

judicial officer running for election or confirmation

pursuant to applicable law pertaining to such

contributions.

(b) Unless permitted to do so by law, an applicable

code of judicial ethics or code of judicial conduct, a

rule or ruling of a tribunal,* or a court order, a lawyer

shall not directly or indirectly communicate with or

argue to a judge or judicial officer upon the merits of

a contested matter pending before the judge or

judicial officer, except:

(1) in open court;

(2) with the consent of all other counsel and

any unrepresented parties in the matter;

(3) in the presence of all other counsel and

any unrepresented parties in the matter;

(4) in writing* with a copy thereof furnished to

all other counsel and any unrepresented parties

in the matter; or

(5) in ex parte matters.

shall also include: (i) administrative law judges; (ii)

neutral arbitrators; (iii) State Bar Court judges; (iv)

members of an administrative body acting in an

adjudicative capacity; and (v) law clerks, research

attorneys, or other court personnel who participate in

the decision-making process, including referees,

special masters, or other persons* to whom a court

refers one or more issues and whose decision or

recommendation can be binding on the parties if

approved by the court.

(d) A lawyer connected with a case shall not

communicate directly or indirectly with anyone the

lawyer knows* to be a member of the venire from

which the jury will be selected for trial of that case.

(e) During trial, a lawyer connected with the case

shall not communicate directly or indirectly with any

juror.

(f) During trial, a lawyer who is not connected with

the case shall not communicate directly or indirectly

concerning the case with anyone the lawyer knows* is

a juror in the case.

(g) After discharge of the jury from further

consideration of a case a lawyer shall not

communicate directly or indirectly with a juror if:

(1) the communication is prohibited by law or

court order;

(2) the juror has made known* to the lawyer a

desire not to communicate; or

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An asterisk (*) identifies a word or phrase defined in rule 1.0.1

(3) the communication involves

misrepresentation, coercion, or duress, or is

intended to harass or embarrass the juror or to

influence the juror’s actions in future jury

service.

(h) A lawyer shall not directly or indirectly conduct

an out of court investigation of a person* who is

either a member of a venire or a juror in a manner

likely to influence the state of mind of such person* in

connection with present or future jury service.

(i) All restrictions imposed by this rule also apply to

communications with, or investigations of, members

of the family of a person* who is either a member of a

venire or a juror.

(j) A lawyer shall reveal promptly to the court

improper conduct by a person* who is either a

member of a venire or a juror, or by another toward a

person* who is either a member of a venire or a juror

or a member of his or her family, of which the lawyer

has knowledge.

(k) This rule does not prohibit a lawyer from

communicating with persons* who are members of a

venire or jurors as a part of the official proceedings.

(l) For purposes of this rule, “juror” means any

empaneled, discharged, or excused juror.

Comment

[1] An applicable code of judicial ethics or code of

judicial conduct under this rule includes the California

Code of Judicial Ethics and the Code of Conduct for

United States Judges. Regarding employees of a

tribunal* not subject to judicial ethics or conduct

codes, applicable standards include the Code of Ethics

for the Court Employees of California and 5 United

States Code section 7353 (Gifts to Federal employees).

The statutes applicable to adjudicatory proceedings of

state agencies generally are contained in the

Administrative Procedure Act (Gov. Code, § 11340 et

seq.; see Gov. Code, § 11370 [listing statutes with the

act].) State and local agencies also may adopt their

own regulations and rules governing communications

with members or employees of a tribunal.*

[2] For guidance on permissible communications

with a juror in a criminal action after discharge of the

jury, see Code of Civil Procedure section 206.

[3] It is improper for a lawyer to communicate with

a juror who has been removed, discharged, or

excused from an empaneled jury, regardless of

whether notice is given to other counsel, until such

time as the entire jury has been discharged from

further service or unless the communication is part of

the official proceedings of the case.

Rule 3.6 Trial Publicity

(a) A lawyer who is participating or has participated

in the investigation or litigation of a matter shall not

make an extrajudicial statement that the lawyer

knows* or reasonably should know* will (i) be

disseminated by means of public communication and

(ii) have a substantial* likelihood of materially

prejudicing an adjudicative proceeding in the matter.

(b) Notwithstanding paragraph (a), but only to the

extent permitted by Business and Professions Code

section 6068, subdivision (e) and rule 1.6, lawyer may

state:

(1) the claim, offense or defense involved and,

except when prohibited by law, the identity of

the persons* involved;

(2) information contained in a public record;

(3) that an investigation of a matter is in

progress;

(4) the scheduling or result of any step in

litigation;

(5) a request for assistance in obtaining

evidence and information necessary thereto;

(6) a warning of danger concerning the

behavior of a person* involved, when there is

reason to believe* that there exists the

likelihood of substantial* harm to an individual

or to the public but only to the extent that

dissemination by public communication is

reasonably* necessary to protect the individual

or the public; and

(7) in a criminal case, in addition to

subparagraphs (1) through (6):

(i) the identity, general area of

residence, and occupation of the accused;

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(ii) if the accused has not been

apprehended, the information necessary to

aid in apprehension of that person;*

(iii) the fact, time, and place of arrest;

and

(iv) the identity of investigating and

arresting officers or agencies and the

length of the investigation.

make a statement that a reasonable* lawyer would

believe* is required to protect a client from the

substantial* undue prejudicial effect of recent

publicity not initiated by the lawyer or the lawyer’s

client. A statement made pursuant to this paragraph

shall be limited to such information as is necessary to

mitigate the recent adverse publicity.

(d) No lawyer associated in a law firm* or

government agency with a lawyer subject to

paragraph (a) shall make a statement prohibited by

paragraph (a).

Comment

[1] Whether an extrajudicial statement violates this

rule depends on many factors, including: (i) whether

the extrajudicial statement presents information

clearly inadmissible as evidence in the matter for the

purpose of proving or disproving a material fact in

issue; (ii) whether the extrajudicial statement

presents information the lawyer knows* is false,

deceptive, or the use of which would violate Business

and Professions Code section 6068, subdivision (d) or

rule 3.3; (iii) whether the extrajudicial statement

violates a lawful “gag” order, or protective order,

statute, rule of court, or special rule of confidentiality,

for example, in juvenile, domestic, mental disability,

and certain criminal proceedings, (see Bus. & Prof.

Code, § 6068, subd. (a) and rule 3.4(f), which require

compliance with such obligations); and (iv) the timing

of the statement.

[2] This rule applies to prosecutors and criminal

defense counsel. See rule 3.8(e) for additional duties

of prosecutors in connection with extrajudicial

statements about criminal proceedings.

Rule 3.7 Lawyer as Witness

(a) A lawyer shall not act as an advocate in a trial

in which the lawyer is likely to be a witness unless:

(1) the lawyer’s testimony relates to an

uncontested issue or matter;

(2) the lawyer’s testimony relates to the

nature and value of legal services rendered in

the case; or

(3) the lawyer has obtained informed written

consent* from the client. If the lawyer

represents the People or a governmental

entity, the consent shall be obtained from the

head of the office or a designee of the head of

the office by which the lawyer is employed.

(b) A lawyer may act as advocate in a trial in which

another lawyer in the lawyer’s firm* is likely to be

called as a witness unless precluded from doing so

by rule 1.7 or rule 1.9.

Comment

[1] This rule applies to a trial before a jury, judge,

administrative law judge or arbitrator. This rule does

not apply to other adversarial proceedings. This rule

also does not apply in non-adversarial proceedings,

as where a lawyer testifies on behalf of a client in a

hearing before a legislative body.

[2] A lawyer’s obligation to obtain informed written

consent* may be satisfied when the lawyer makes the

required disclosure, and the client gives informed

consent* on the record in court before a licensed

court reporter or court recorder who prepares a

transcript or recording of the disclosure and consent.

See definition of “written” in rule 1.0.1(n).

[3] Notwithstanding a client’s informed written

consent,* courts retain discretion to take action, up to

and including disqualification of a lawyer who seeks to

both testify and serve as an advocate, to protect the

trier of fact from being misled or the opposing party

from being prejudiced. (See, e.g., Lyle v. Superior

Court (1981) 122 Cal.App.3d 470 [175 Cal.Rptr. 918].)

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An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Rule 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall:

(a) not institute or continue to prosecute a charge

that the prosecutor knows* is not supported by

probable cause;

(b) make reasonable* efforts to assure that the

accused has been advised of the right to, and the

procedure for obtaining, counsel and has been given

reasonable* opportunity to obtain counsel;

accused a waiver of important pretrial rights unless

the tribunal* has approved the appearance of the

accused in propria persona;

(d) make timely disclosure to the defense of all

evidence or information known* to the prosecutor

that the prosecutor knows* or reasonably should

know* tends to negate the guilt of the accused,

mitigate the offense, or mitigate the sentence, except

when the prosecutor is relieved of this responsibility

by a protective order of the tribunal;* and

(e) exercise reasonable* care to prevent persons*

under the supervision or direction of the prosecutor,

including investigators, law enforcement personnel,

employees or other persons* assisting or associated

with the prosecutor in a criminal case from making an

extrajudicial statement that the prosecutor would be

prohibited from making under rule 3.6.

(f) When a prosecutor knows* of new, credible and

material evidence creating a reasonable* likelihood

that a convicted defendant did not commit an offense

of which the defendant was convicted, the prosecutor

shall:

(1) promptly disclose that evidence to an

appropriate court or authority, and

(2) if the conviction was obtained in the

prosecutor’s jurisdiction,

(i) promptly disclose that evidence to

the defendant unless a court authorizes

delay, and

(ii) undertake further investigation, or

make reasonable* efforts to cause an

investigation, to determine whether the

defendant was convicted of an offense that

the defendant did not commit.

(g) When a prosecutor knows* of clear and

convincing evidence establishing that a defendant in

the prosecutor’s jurisdiction was convicted of an

offense that the defendant did not commit, the

prosecutor shall seek to remedy the conviction.

Comment

[1] A prosecutor has the responsibility of a minister

of justice and not simply that of an advocate. This

responsibility carries with it specific obligations to see

that the defendant is accorded procedural justice,

that guilt is decided upon the basis of sufficient

evidence, and that special precautions are taken to

prevent and to rectify the conviction of innocent

persons.* This rule is intended to achieve those

results. All lawyers in government service remain

bound by rules 3.1 and 3.4.

[2] Paragraph (c) does not forbid the lawful

questioning of an uncharged suspect who has

knowingly* waived the right to counsel and the right

to remain silent. Paragraph (c) also does not forbid

prosecutors from seeking from an unrepresented

accused a reasonable* waiver of time for initial

appearance or preliminary hearing as a means of

facilitating the accused’s voluntary cooperation in an

ongoing law enforcement investigation.

[3] The disclosure obligations in paragraph (d) are not

limited to evidence or information that is material as

defined by Brady v. Maryland (1963) 373 U.S. 83 [83

S.Ct. 1194] and its progeny. For example, these

obligations include, at a minimum, the duty to disclose

impeachment evidence or information that a

prosecutor knows* or reasonably should know* casts

significant doubt on the accuracy or admissibility of

witness testimony on which the prosecution intends to

rely. Paragraph (d) does not require disclosure of

information protected from disclosure by federal or

California laws and rules, as interpreted by case law or

court orders. Nothing in this rule is intended to be

applied in a manner inconsistent with statutory and

constitutional provisions governing discovery in

California courts. A disclosure’s timeliness will vary

with the circumstances, and paragraph (d) is not

intended to impose timing requirements different from

those established by statutes, procedural rules, court

orders, and case law interpreting those authorities and

the California and federal constitutions.

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[4] The exception in paragraph (d) recognizes that a

prosecutor may seek an appropriate protective order

from the tribunal* if disclosure of information to the

defense could result in substantial* harm to an

individual or to the public interest.

[5] Paragraph (e) supplements rule 3.6, which

prohibits extrajudicial statements that have a

substantial* likelihood of prejudicing an adjudicatory

proceeding. Paragraph (e) is not intended to restrict

the statements which a prosecutor may make which

comply with rule 3.6(b) or 3.6(c).

[6] Prosecutors have a duty to supervise the work of

subordinate lawyers and nonlawyer employees or

agents. (See rules 5.1 and 5.3.) Ordinarily, the

reasonable* care standard of paragraph (e) will be

satisfied if the prosecutor issues the appropriate

cautions to law enforcement personnel and other

relevant individuals.

[7] When a prosecutor knows* of new, credible and

material evidence creating a reasonable* likelihood

that a person* outside the prosecutor’s jurisdiction

was convicted of a crime that the person* did not

commit, paragraph (f) requires prompt disclosure to

the court or other appropriate authority, such as the

chief prosecutor of the jurisdiction where the

conviction occurred. If the conviction was obtained in

the prosecutor’s jurisdiction, paragraph (f) requires

the prosecutor to examine the evidence and

undertake further investigation to determine whether

the defendant is in fact innocent or make reasonable*

efforts to cause another appropriate authority to

undertake the necessary investigation, and to

promptly disclose the evidence to the court and,

absent court authorized delay, to the defendant.

Disclosure to a represented defendant must be made

through the defendant’s counsel, and, in the case of

an unrepresented defendant, would ordinarily be

accompanied by a request to a court for the

appointment of counsel to assist the defendant in

taking such legal measures as may be appropriate.

(See rule 4.2.) Statutes may require a prosecutor to

preserve certain types of evidence in criminal matters.

(See Pen. Code, §§ 1417.1-1417.9.) In addition,

prosecutors must obey file preservation orders

concerning rights of discovery guaranteed by the

Constitution and statutory provisions. (See People v.

Superior Court (Morales) (2017) 2 Cal.5th 523 [213

Cal.Rptr.3d 581]; Shorts v. Superior Court (2018) 24

Cal.App.5th 709 [234 Cal.Rptr.3d 392].)

[8] Under paragraph (g), once the prosecutor

knows* of clear and convincing evidence that the

defendant was convicted of an offense that the

defendant did not commit, the prosecutor must seek

to remedy the conviction. Depending upon the

circumstances, steps to remedy the conviction could

include disclosure of the evidence to the defendant,

requesting that the court appoint counsel for an

unrepresented indigent defendant and, where

appropriate, notifying the court that the prosecutor

has knowledge that the defendant did not commit the

offense of which the defendant was convicted.

[9] A prosecutor’s independent judgment, made in

good faith, that the new evidence is not of such nature

as to trigger the obligations of paragraphs (f) and (g),

though subsequently determined to have been

erroneous, does not constitute a violation of this rule.

[Publisher’s Note: Comment [7] was amended by

order of the Supreme Court, effective June 1, 2020.]

Rule 3.9 Advocate in Nonadjudicative

Proceedings

A lawyer representing a client before a legislative

body or administrative agency in connection with a

pending nonadjudicative matter or proceeding shall

disclose that the appearance is in a representative

capacity, except when the lawyer seeks information

from an agency that is available to the public.

Comment

This rule only applies when a lawyer represents a

client in connection with an official hearing or

meeting of a governmental agency or a legislative

body to which the lawyer or the lawyer’s client is

presenting evidence or argument. It does not apply to

representation of a client in a negotiation or other

bilateral transaction with a governmental agency or in

connection with an application for a license or other

privilege or the client’s compliance with generally

applicable reporting requirements, such as the filing

of income-tax returns. This rule also does not apply to

the representation of a client in connection with an

investigation or examination of the client’s affairs

conducted by government investigators or examiners.

Representation in such matters is governed by rules

4.1 through 4.4. This rule does not require a lawyer to

disclose a client’s identity.

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Rule 3.10 Threatening Criminal, Administrative,

or Disciplinary Charges

(a) A lawyer shall not threaten to present criminal,

administrative, or disciplinary charges to obtain an

advantage in a civil dispute.

(b) As used in paragraph (a) of this rule, the term

“administrative charges” means the filing or lodging of

a complaint with any governmental organization that

may order or recommend the loss or suspension of a

license, or may impose or recommend the imposition

of a fine, pecuniary sanction, or other sanction of a

quasi-criminal nature but does not include filing

charges with an administrative entity required by law

as a condition precedent to maintaining a civil action.

means a controversy or potential controversy over

the rights and duties of two or more persons* under

civil law, whether or not an action has been

commenced, and includes an administrative

proceeding of a quasi-civil nature pending before a

federal, state, or local governmental entity.

Comment

[1] Paragraph (a) does not prohibit a statement by a

lawyer that the lawyer will present criminal,

administrative, or disciplinary charges, unless the

statement is made to obtain an advantage in a civil

dispute. For example, if a lawyer believes* in good

faith that the conduct of the opposing lawyer or party

violates criminal or other laws, the lawyer may state

that if the conduct continues the lawyer will report it

to criminal or administrative authorities. On the other

hand, a lawyer could not state or imply that a criminal

or administrative action will be pursued unless the

opposing party agrees to settle the civil dispute.

[2] This rule does not apply to a threat to bring a

civil action. It also does not prohibit actually

presenting criminal, administrative or disciplinary

charges, even if doing so creates an advantage in a

civil dispute. Whether a lawyer’s statement violates

this rule depends on the specific facts. (See, e.g.,

Crane v. State Bar (1981) 30 Cal.3d 117 [177 Cal.Rptr.

670].) A statement that the lawyer will pursue “all

available legal remedies,” or words of similar import,

does not by itself violate this rule.

[3] This rule does not apply to: (i) a threat to initiate

contempt proceedings for a failure to comply with a

court order; or (ii) the offer of a civil compromise in

accordance with a statute such as Penal Code sections

1377 and 1378.

[4] This rule does not prohibit a government lawyer

from offering a global settlement or release-dismissal

agreement in connection with related criminal, civil or

administrative matters. The government lawyer must

have probable cause for initiating or continuing

criminal charges. (See rule 3.8(a).)

[5] As used in paragraph (b), “governmental

organizations” includes any federal, state, local, and

foreign governmental organizations. Paragraph (b)

exempts the threat of filing an administrative charge

that is a prerequisite to filing a civil complaint on the

same transaction or occurrence.

CHAPTER 4.

TRANSACTIONS WITH PERSONS*

OTHER THAN CLIENTS

Rule 4.1 Truthfulness in Statements to Others

In the course of representing a client a lawyer shall

not knowingly:*

(a) make a false statement of material fact or law

to a third person;* or

(b) fail to disclose a material fact to a third person*

when disclosure is necessary to avoid assisting a

criminal or fraudulent* act by a client, unless

disclosure is prohibited by Business and Professions

Code section 6068, subdivision (e)(1) or rule 1.6.

Comment

[1] A lawyer is required to be truthful when

dealing with others on a client’s behalf, but generally

has no affirmative duty to inform an opposing party

of relevant facts. A misrepresentation can occur if

the lawyer incorporates or affirms the truth of a

statement of another person* that the lawyer

knows* is false. However, in drafting an agreement

or other document on behalf of a client, a lawyer

does not necessarily affirm or vouch for the

truthfulness of representations made by the client in

the agreement or document. A nondisclosure can be

the equivalent of a false statement of material fact

or law under paragraph (a) where a lawyer makes a

partially true but misleading material statement or

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material omission. In addition to this rule, lawyers

remain bound by Business and Professions Code

section 6106 and rule 8.4.

[2] This rule refers to statements of fact. Whether

a particular statement should be regarded as one of

fact can depend on the circumstances. For example,

in negotiation, certain types of statements ordinarily

are not taken as statements of material fact.

Estimates of price or value placed on the subject of a

transaction and a party’s intentions as to an

acceptable settlement of a claim are ordinarily in this

category, and so is the existence of an undisclosed

principal except where nondisclosure of the principal

would constitute fraud.*

[3] Under rule 1.2.1, a lawyer is prohibited from

counseling or assisting a client in conduct that the

lawyer knows* is criminal or fraudulent.* See rule

1.4(a)(4) regarding a lawyer’s obligation to consult

with the client about limitations on the lawyer’s

conduct. In some circumstances, a lawyer can avoid

assisting a client’s crime or fraud* by withdrawing

from the representation in compliance with rule

1.16.

[4] Regarding a lawyer’s involvement in lawful

covert activity in the investigation of violations of

law, see rule 8.4, Comment [5].

Rule 4.2 Communication with a Represented

Person*

(a) In representing a client, a lawyer shall not

communicate directly or indirectly about the subject

of the representation with a person* the lawyer

knows* to be represented by another lawyer in the

matter, unless the lawyer has the consent of the other

lawyer.

(b) In the case of a represented corporation,

partnership, association, or other private or

governmental organization, this rule prohibits

communications with:

(1) A current officer, director, partner,*or

managing agent of the organization; or

(2) A current employee, member, agent, or

other constituent of the organization, if the

subject of the communication is any act or

omission of such person* in connection with the

matter which may be binding upon or imputed

to the organization for purposes of civil or

criminal liability.

(1) communications with a public official,

board, committee, or body; or

(2) communications otherwise authorized by

law or a court order.

(d) For purposes of this rule:

(1) “Managing agent” means an employee,

member, agent, or other constituent of an

organization with substantial* discretionary

authority over decisions that determine

organizational policy.

(2) “Public official” means a public officer of

the United States government, or of a state,

county, city, town, political subdivision, or other

governmental organization, with the

comparable decision-making authority and

responsibilities as the organizational

constituents described in paragraph (b)(1).

Comment

[1] This rule applies even though the represented

person* initiates or consents to the communication.

A lawyer must immediately terminate communication

with a person* if, after commencing communication,

the lawyer learns that the person* is one with whom

communication is not permitted by this rule.

[2] “Subject of the representation,” “matter,” and

“person” are not limited to a litigation context. This

rule applies to communications with any person,*

whether or not a party to a formal adjudicative

proceeding, contract, or negotiation, who is

represented by counsel concerning the matter to

which the communication relates.

[3] The prohibition against communicating

“indirectly” with a person* represented by counsel in

paragraph (a) is intended to address situations where

a lawyer seeks to communicate with a represented

person* through an intermediary such as an agent,

investigator or the lawyer’s client. This rule, however,

does not prevent represented persons* from

communicating directly with one another with respect

to the subject of the representation, nor does it

prohibit a lawyer from advising a client concerning

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An asterisk (*) identifies a word or phrase defined in rule 1.0.1

such a communication. A lawyer may also advise a

client not to accept or engage in such

communications. The rule also does not prohibit a

lawyer who is a party to a legal matter from

communicating on his or her own behalf with a

represented person* in that matter.

[4] This rule does not prohibit communications with

a represented person* concerning matters outside

the representation. Similarly, a lawyer who knows*

that a person* is being provided with limited scope

representation is not prohibited from communicating

with that person* with respect to matters that are

outside the scope of the limited representation. (See,

e.g., Cal. Rules of Court, rules 3.35 – 3.37, 5.425

[Limited Scope Representation].)

[5] This rule does not prohibit communications

initiated by a represented person* seeking advice or

representation from an independent lawyer of the

person’s* choice.

[6] If a current constituent of the organization is

represented in the matter by his or her own counsel,

the consent by that counsel to a communication is

sufficient for purposes of this rule.

[7] This rule applies to all forms of governmental

and private organizations, such as cities, counties,

corporations, partnerships, limited liability companies,

and unincorporated associations. When a lawyer

communicates on behalf of a client with a

governmental organization, or certain employees,

members, agents, or other constituents of a

governmental organization, however, special

considerations exist as a result of the right to petition

conferred by the First Amendment of the United

States Constitution and article I, section 3 of the

California Constitution. Paragraph (c)(1) recognizes

these special considerations by generally exempting

from application of this rule communications with

public boards, committees, and bodies, and with

public officials as defined in paragraph (d)(2) of this

rule. Communications with a governmental

organization constituent who is not a public official,

however, will remain subject to this rule when the

lawyer knows* the governmental organization is

represented in the matter and the communication

with that constituent falls within paragraph (b)(2).

[8] Paragraph (c)(2) recognizes that statutory

schemes, case law, and court orders may authorize

communications between a lawyer and a person*

that would otherwise be subject to this rule.

Examples of such statutory schemes include those

protecting the right of employees to organize and

engage in collective bargaining, employee health and

safety, and equal employment opportunity. The law

also recognizes that prosecutors and other

government lawyers are authorized to contact

represented persons,* either directly or through

investigative agents and informants, in the context of

investigative activities, as limited by relevant federal

and state constitutions, statutes, rules, and case law.

(See, e.g., United States v. Carona (9th Cir. 2011) 630

F.3d 917; United States v. Talao (9th Cir. 2000) 222

F.3d 1133.) The rule is not intended to preclude

communications with represented persons* in the

course of such legitimate investigative activities as

authorized by law. This rule also is not intended to

preclude communications with represented persons*

in the course of legitimate investigative activities

engaged in, directly or indirectly, by lawyers

representing persons* whom the government has

accused of or is investigating for crimes, to the extent

those investigative activities are authorized by law.

[9] A lawyer who communicates with a represented

person* pursuant to paragraph (c) is subject to other

restrictions in communicating with the person.* (See,

e.g. Bus. & Prof. Code, § 6106; Snider v. Superior Court

(2003) 113 Cal.App.4th 1187, 1213 [7 Cal.Rptr.3d

119]; In the Matter of Dale (2005) 4 Cal. State Bar Ct.

Rptr. 798.)

Rule 4.3 Communicating with an

Unrepresented Person*

(a) In communicating on behalf of a client with a

person* who is not represented by counsel, a lawyer

shall not state or imply that the lawyer is

disinterested. When the lawyer knows* or

reasonably should know* that the unrepresented

person* incorrectly believes* the lawyer is

disinterested in the matter, the lawyer shall make

reasonable* efforts to correct the misunderstanding.

If the lawyer knows* or reasonably should know*

that the interests of the unrepresented person* are

in conflict with the interests of the client, the lawyer

shall not give legal advice to that person,* except

that the lawyer may, but is not required to, advise

the person* to secure counsel.

(b) In communicating on behalf of a client with a

person* who is not represented by counsel, a lawyer

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shall not seek to obtain privileged or other

confidential information the lawyer knows* or

reasonably should know* the person* may not

reveal without violating a duty to another or which

the lawyer is not otherwise entitled to receive.

Comment

[1] This rule is intended to protect unrepresented

persons,* whatever their interests, from being misled

when communicating with a lawyer who is acting for a

client.

[2] Paragraph (a) distinguishes between situations in

which a lawyer knows* or reasonably should know*

that the interests of an unrepresented person* are in

conflict with the interests of the lawyer’s client and

situations in which the lawyer does not. In the former

situation, the possibility that the lawyer will

compromise the unrepresented person’s* interests is

so great that the rule prohibits the giving of any legal

advice, apart from the advice to obtain counsel. A

lawyer does not give legal advice merely by stating a

legal position on behalf of the lawyer’s client. This rule

does not prohibit a lawyer from negotiating the terms

of a transaction or settling a dispute with an

unrepresented person.* So long as the lawyer

discloses that the lawyer represents an adverse party

and not the person,* the lawyer may inform the

person* of the terms on which the lawyer’s client will

enter into the agreement or settle the matter, prepare

documents that require the person’s* signature, and

explain the lawyer’s own view of the meaning of the

document and the underlying legal obligations.

[3] Regarding a lawyer’s involvement in lawful

covert activity in the investigation of violations of law,

see rule 8.4, Comment [5].

Rule 4.4 Duties Concerning Inadvertently

Transmitted Writings*

Where it is reasonably* apparent to a lawyer who

receives a writing* relating to a lawyer’s

representation of a client that the writing* was

inadvertently sent or produced, and the lawyer

knows* or reasonably should know* that the writing*

is privileged or subject to the work product doctrine,

the lawyer shall:

(a) refrain from examining the writing* any more

than is necessary to determine that it is privileged or

subject to the work product doctrine, and

(b) promptly notify the sender.

Comment

[1] If a lawyer determines this rule applies to a

transmitted writing,* the lawyer should return the

writing* to the sender, seek to reach agreement with

the sender regarding the disposition of the writing,*

or seek guidance from a tribunal.* (See Rico v.

Mitsubishi (2007) 42 Cal.4th 807, 817 [68 Cal.Rptr.3d

758].) In providing notice required by this rule, the

lawyer shall comply with rule 4.2.

[2] This rule does not address the legal duties of a

lawyer who receives a writing* that the lawyer

knows* or reasonably should know* may have been

inappropriately disclosed by the sending person.*

(See Clark v. Superior Court (2011) 196 Cal.App.4th 37

[125 Cal.Rptr.3d 361].)

CHAPTER 5.

LAW FIRMS* AND ASSOCIATIONS

Rule 5.1 Responsibilities of Managerial and

Supervisory Lawyers

(a) A lawyer who individually or together with other

lawyers possesses managerial authority in a law firm,*

shall make reasonable* efforts to ensure that the

firm* has in effect measures giving reasonable*

assurance that all lawyers in the firm* comply with

these rules and the State Bar Act.

(b) A lawyer having direct supervisory authority

over another lawyer, whether or not a member or

employee of the same law firm,* shall make

reasonable* efforts to ensure that the other lawyer

complies with these rules and the State Bar Act.

lawyer’s violation of these rules and the State Bar Act

if:

(1) the lawyer orders or, with knowledge of

the relevant facts and of the specific conduct,

ratifies the conduct involved; or

(2) the lawyer, individually or together with

other lawyers, possesses managerial authority in

the law firm* in which the other lawyer

practices, or has direct supervisory authority

over the other lawyer, whether or not a member

or employee of the same law firm,* and knows*

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of the conduct at a time when its consequences

can be avoided or mitigated but fails to take

reasonable* remedial action.

Comment

Paragraph (a) – Duties Of Managerial Lawyers To

Reasonably* Assure Compliance with the Rules

[1] Paragraph (a) requires lawyers with managerial

authority within a law firm* to make reasonable*

efforts to establish internal policies and procedures

designed, for example, to detect and resolve conflicts

of interest, identify dates by which actions must be

taken in pending matters, account for client funds and

property, and ensure that inexperienced lawyers are

properly supervised.

[2] Whether particular measures or efforts satisfy

the requirements of paragraph (a) might depend

upon the law firm’s structure and the nature of its

practice, including the size of the law firm,* whether it

has more than one office location or practices in more

than one jurisdiction, or whether the firm* or its

partners* engage in any ancillary business.

[3] A partner,* shareholder or other lawyer in a law

firm* who has intermediate managerial

responsibilities satisfies paragraph (a) if the law firm*

has a designated managing lawyer charged with that

responsibility, or a management committee or other

body that has appropriate managerial authority and is

charged with that responsibility. For example, the

managing lawyer of an office of a multi-office law

firm* would not necessarily be required to

promulgate firm-wide policies intended to

reasonably* assure that the law firm’s lawyers comply

with the rules or State Bar Act. However, a lawyer

remains responsible to take corrective steps if the

lawyer knows* or reasonably should know* that the

delegated body or person* is not providing or

implementing measures as required by this rule.

[4] Paragraph (a) also requires managerial lawyers

to make reasonable* efforts to assure that other

lawyers in an agency or department comply with

these rules and the State Bar Act. This rule

contemplates, for example, the creation and

implementation of reasonable* guidelines relating to

the assignment of cases and the distribution of

workload among lawyers in a public sector legal

agency or other legal department. (See, e.g., State

Bar of California, Guidelines on Indigent Defense

Services Delivery Systems (2006).)

Paragraph (b) – Duties of Supervisory Lawyers

[5] Whether a lawyer has direct supervisory

authority over another lawyer in particular

circumstances is a question of fact.

Paragraph (c) – Responsibility for Another’s Lawyer’s

Violation

[6] The appropriateness of remedial action under

paragraph (c)(2) would depend on the nature and

seriousness of the misconduct and the nature and

immediacy of its harm. A managerial or supervisory

lawyer must intervene to prevent avoidable

consequences of misconduct if the lawyer knows*

that the misconduct occurred.

[7] A supervisory lawyer violates paragraph (b) by

failing to make the efforts required under that

paragraph, even if the lawyer does not violate

paragraph (c) by knowingly* directing or ratifying the

conduct, or where feasible, failing to take reasonable*

remedial action.

[8] Paragraphs (a), (b), and (c) create independent

bases for discipline. This rule does not impose

vicarious responsibility on a lawyer for the acts of

another lawyer who is in or outside the law firm.*

Apart from paragraph (c) of this rule and rule 8.4(a), a

lawyer does not have disciplinary liability for the

conduct of a partner,* associate, or subordinate

lawyer. The question of whether a lawyer can be

liable civilly or criminally for another lawyer’s conduct

is beyond the scope of these rules.

Rule 5.2 Responsibilities of a Subordinate

Lawyer

(a) A lawyer shall comply with these rules and the

State Bar Act notwithstanding that the lawyer acts at

the direction of another lawyer or other person.*

(b) A subordinate lawyer does not violate these

rules or the State Bar Act if that lawyer acts in

accordance with a supervisory lawyer’s reasonable*

resolution of an arguable question of professional

duty.

Comment

When lawyers in a supervisor-subordinate

relationship encounter a matter involving professional

judgment as to the lawyers’ responsibilities under

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these rules or the State Bar Act and the question can

reasonably* be answered only one way, the duty of

both lawyers is clear and they are equally responsible

for fulfilling it. Accordingly, the subordinate lawyer

must comply with his or her obligations under

paragraph (a). If the question reasonably* can be

answered more than one way, the supervisory lawyer

may assume responsibility for determining which of

the reasonable* alternatives to select, and the

subordinate may be guided accordingly. If the

subordinate lawyer believes* that the supervisor’s

proposed resolution of the question of professional

duty would result in a violation of these rules or the

State Bar Act, the subordinate is obligated to

communicate his or her professional judgment

regarding the matter to the supervisory lawyer.

Rule 5.3 Responsibilities Regarding Nonlawyer

Assistants

With respect to a nonlawyer employed or retained by

or associated with a lawyer:

(a) a lawyer who individually or together with other

lawyers possesses managerial authority in a law firm,*

shall make reasonable* efforts to ensure that the

firm* has in effect measures giving reasonable*

assurance that the nonlawyer’s conduct is compatible

with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over

the nonlawyer, whether or not an employee of the

same law firm,* shall make reasonable* efforts to

ensure that the person’s* conduct is compatible with

the professional obligations of the lawyer; and

a person* that would be a violation of these rules or

the State Bar Act if engaged in by a lawyer if:

(1) the lawyer orders or, with knowledge of

the relevant facts and of the specific conduct,

ratifies the conduct involved; or

(2) the lawyer, individually or together with

other lawyers, possesses managerial authority in

the law firm* in which the person* is employed,

or has direct supervisory authority over the

person,* whether or not an employee of the

same law firm,* and knows* of the conduct at a

time when its consequences can be avoided or

mitigated but fails to take reasonable* remedial

action.

Comment

Lawyers often utilize nonlawyer personnel, including

secretaries, investigators, law student interns, and

paraprofessionals. Such assistants, whether

employees or independent contractors, act for the

lawyer in rendition of the lawyer’s professional

services. A lawyer must give such assistants

appropriate instruction and supervision concerning all

ethical aspects of their employment. The measures

employed in instructing and supervising nonlawyers

should take account of the fact that they might not

have legal training.

Rule 5.3.1 Employment of Disbarred,

Suspended, Resigned, or Involuntarily Inactive

Lawyer

(a) For purposes of this rule:

(1) “Employ” means to engage the services of

another, including employees, agents,

independent contractors and consultants,

regardless of whether any compensation is paid;

(2) “Member” means a member of the State

Bar of California;

(3) “Involuntarily inactive member” means a

member who is ineligible to practice law as a

result of action taken pursuant to Business and

Professions Code sections 6007, 6203,

subdivision (d)(1), or California Rules of Court,

rule 9.31(d);

(4) “Resigned member” means a member who

has resigned from the State Bar while

disciplinary charges are pending; and

(5) “Ineligible person” means a member

whose current status with the State Bar of

California is disbarred, suspended, resigned, or

involuntarily inactive.

(b) A lawyer shall not employ, associate in practice

with, or assist a person* the lawyer knows* or

reasonably should know* is an ineligible person to

perform the following on behalf of the lawyer’s client:

(1) Render legal consultation or advice to the

client;

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(2) Appear on behalf of a client in any hearing

or proceeding or before any judicial officer,

arbitrator, mediator, court, public agency,

referee, magistrate, commissioner, or hearing

officer;

(3) Appear as a representative of the client at

a deposition or other discovery matter;

(4) Negotiate or transact any matter for or on

behalf of the client with third parties;

(5) Receive, disburse or otherwise handle the

client’s funds; or

(6) Engage in activities that constitute the

practice of law.

or assist an ineligible person to perform research,

drafting or clerical activities, including but not limited

to:

(1) Legal work of a preparatory nature, such as

legal research, the assemblage of data and other

necessary information, drafting of pleadings,

briefs, and other similar documents;

(2) Direct communication with the client or

third parties regarding matters such as

scheduling, billing, updates, confirmation of

receipt or sending of correspondence and

messages; or

(3) Accompanying an active lawyer in

attending a deposition or other discovery matter

for the limited purpose of providing clerical

assistance to the active lawyer who will appear

as the representative of the client.

(d) Prior to or at the time of employing, associating

in practice with, or assisting a person* the lawyer

knows* or reasonably should know* is an ineligible

person, the lawyer shall serve upon the State Bar

written* notice of the employment, including a full

description of such person’s current bar status. The

written* notice shall also list the activities prohibited

in paragraph (b) and state that the ineligible person

will not perform such activities. The lawyer shall serve

similar written* notice upon each client on whose

specific matter such person* will work, prior to or at

the time of employing, associating with, or assisting

such person* to work on the client’s specific matter.

The lawyer shall obtain proof of service of the client’s

written* notice and shall retain such proof and a true

and correct copy of the client’s written* notice for

two years following termination of the lawyer’s

employment by the client.

(e) A lawyer may, without client or State Bar

notification, employ, associate in practice with, or

assist an ineligible person whose sole function is to

perform office physical plant or equipment

maintenance, courier or delivery services, catering,

reception, typing or transcription, or other similar

support activities.

(f) When the lawyer no longer employs, associates

in practice with, or assists the ineligible person, the

lawyer shall promptly serve upon the State Bar

written* notice of the termination.

Comment

If the client is an organization, the lawyer shall serve

the notice required by paragraph (d) on its highest

authorized officer, employee, or constituent

overseeing the particular engagement. (See rule

1.13.)

[Publisher’s Note re rule 5.3.1: Operative January 1,

2019, Business and Professions Code section 6002, in

part, provides that any provision of law referring to

the “member of the State Bar” shall be deemed to

refer to a licensee of the State Bar. In accordance with

this law, references to a “member” included in the

current Rules of Professional Conduct are deemed to

refer to a “licensee.”]

Rule 5.4 Financial and Similar Arrangements

with Nonlawyers

(a) A lawyer or law firm* shall not share legal fees

directly or indirectly with a nonlawyer or with an

organization that is not authorized to practice law,

except that:

(1) an agreement by a lawyer with the

lawyer’s firm,* partner,* or associate may

provide for the payment of money or other

consideration over a reasonable* period of time

after the lawyer’s death, to the lawyer’s estate

or to one or more specified persons;*

(2) a lawyer purchasing the practice of a

deceased, disabled or disappeared lawyer may

pay the agreed-upon purchase price, pursuant to

RULES OF PROFESSIONAL CONDUCT

48 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

rule 1.17, to the lawyer’s estate or other

representative;

(3) a lawyer or law firm* may include

nonlawyer employees in a compensation or

retirement plan, even though the plan is based

in whole or in part on a profit-sharing

arrangement, provided the plan does not

otherwise violate these rules or the State Bar

Act;

(4) a lawyer or law firm* may pay a prescribed

registration, referral, or other fee to a lawyer

referral service established, sponsored and

operated in accordance with the State Bar of

California’s Minimum Standards for Lawyer

Referral Services;

(5) a lawyer or law firm* may share with or

pay a court-awarded legal fee to a nonprofit

organization that employed, retained,

recommended, or facilitated employment of the

lawyer or law firm* in the matter; or

(6) a lawyer or law firm* may share with or

pay a legal fee that is not court-awarded but

arises from a settlement or other resolution of

the matter with a nonprofit organization that

employed, retained, recommended, or

facilitated employment of the lawyer or law

firm* in the matter provided:

(i) the nonprofit organization qualifies

under section 501(c)(3) of the Internal

Revenue Code;

(ii) the lawyer or law firm* enters into a

written* agreement to divide the fee with

the nonprofit organization;

(iii) the lawyer or law firm* obtains the

client’s consent in writing,* either at the

time the lawyer or law firm* enters into

the agreement with the nonprofit

organization to divide the fee or as soon

thereafter as reasonably* practicable, after

a full written* disclosure to the client of

the fact that a division of fees will be made,

the identity of the lawyer or law firm* and

the nonprofit organization that are parties

to the division, and the terms of the

division, including the restriction imposed

under paragraph (a)(6)(iv); and

(iv) the total fee charged by the lawyer or

law firm* is not increased solely by reason

of the agreement to divide fees.

(b) A lawyer shall not form a partnership or other

organization with a nonlawyer if any of the activities

of the partnership or other organization consist of the

practice of law.

recommends, employs, or pays the lawyer to render

legal services for another to direct or regulate the

lawyer’s independent professional judgment or

interfere with the lawyer-client relationship in

rendering legal services.

(d) A lawyer shall not practice with or in the form of

a professional corporation or other organization

authorized to practice law for a profit if:

(1) a nonlawyer owns any interest in it, except

that a fiduciary representative of a lawyer’s

estate may hold the lawyer’s stock or other

interest for a reasonable* time during

administration;

(2) a nonlawyer is a director or officer of the

corporation or occupies a position of similar

responsibility in any other form of organization;

(3) a nonlawyer has the right or authority to

direct or control the lawyer’s independent

professional judgment.

(e) The Board of Trustees of the State Bar shall

formulate and adopt Minimum Standards for Lawyer

Referral Services, which, as from time to time

amended, shall be binding on lawyers. A lawyer shall

not accept a referral from, or otherwise participate in,

a lawyer referral service unless it complies with such

Minimum Standards for Lawyer Referral Services.

(f) A lawyer shall not practice with or in the form of

a nonprofit legal aid, mutual benefit or advocacy

group if the nonprofit organization allows any third

person* to interfere with the lawyer’s independent

professional judgment, or with the lawyer-client

relationship, or allows or aids any person* to practice

law in violation of these rules or the State Bar Act.

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2023 CURRENT RULES 49

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

Comment

[1] Paragraph (a) does not prohibit a lawyer or law

firm* from paying a bonus to or otherwise

compensating a nonlawyer employee from general

revenues received for legal services, provided the

arrangement does not interfere with the independent

professional judgment of the lawyer or lawyers in the

firm* and does not violate these rules or the State Bar

Act. However, a nonlawyer employee’s bonus or

other form of compensation may not be based on a

percentage or share of fees in specific cases or legal

matters.

[2] Paragraph (a) also does not prohibit payment to a

nonlawyer third-party for goods and services provided

to a lawyer or law firm;* however, the compensation to

a nonlawyer third-party may not be determined as a

percentage or share of the lawyer’s or law firm’s overall

revenues or tied to fees in particular cases or legal

matters. A lawyer may pay to a nonlawyer third-party,

such as a collection agency, a percentage of past due or

delinquent fees in concluded matters that the third-

party collects on the lawyer’s behalf.

[3] Paragraph (a)(5) permits a lawyer to share with

or pay court-awarded legal fees to nonprofit legal aid,

mutual benefit, and advocacy groups that are not

engaged in the unauthorized practice of law. (See

Frye v. Tenderloin Housing Clinic, Inc. (2006) 38 Cal.4th

23 [40 Cal.Rptr.3d 221]; see also rule 6.3.) Under the

specified circumstances, paragraph (a)(6) permits a

lawyer to share with or pay legal fees arising from a

settlement or other resolution of the matter to

501(c)(3) organizations, such as nonprofit legal aid

and charitable groups that are not engaged in the

unauthorized practice of law. Paragraphs (a)(5) and

(a)(6) include the concept of a nonprofit organization

facilitating the employment of a lawyer to provide

legal services. One example of such facilitation is a

nonprofit organization’s operation of a law practice

incubator program.

[4] A lawyer or law firm* who has agreed to share

with or pay legal fees to a qualifying organization

under paragraphs (a)(5) or (a)(6) remains obligated to

exercise independent professional judgment in the

client’s best interest. See rules 1.7 and 2.1. Regarding

a lawyer’s contribution of legal fees to a legal services

organization, see rule 1.0, Comment [5] on financial

support for programs providing pro bono legal

services.

[5] Nothing in paragraphs (a)(5) or (a)(6) is intended

to alter the regulation of lawyer referral activity set

forth in Business and Professions Code section 6155.

In addition, a lawyer must comply with rules 5.4(a)(4)

and 7.2(b).

[6] This rule is not intended to affect case law

regarding the relationship between insurers and

lawyers providing legal services to insureds. (See, e.g.,

Gafcon, Inc. v. Ponsor Associates (2002) 98

Cal.App.4th 1388 [120 Cal.Rptr.2d 392].) This rule is not intended to affect case law regarding the relationship between insurers and lawyers providing legal services to insureds. (See, e.g., Gafcon, Inc. v. Ponsor Associates (2002) 98 Cal.App.4th 1388 [120 Cal.Rptr.2d 392].)

[7] Paragraph (c) is not intended to alter or diminish

a lawyer’s obligations under rule 1.8.6 (Compensation

from One Other than Client).

[Publisher’s Note: Rule 5.4 was amended by order of

the Supreme Court, effective March 22, 2021.]

Rule 5.5 Unauthorized Practice of Law;

Multijurisdictional Practice of Law

(a) A lawyer admitted to practice law in California

shall not:

(1) practice law in a jurisdiction where to do so

would be in violation of regulations of the

profession in that jurisdiction; or

(2) knowingly* assist a person* in the

unauthorized practice of law in that jurisdiction.

(b) A lawyer who is not admitted to practice law in

California shall not:

(1) except as authorized by these rules or

other law, establish or maintain a resident office

or other systematic or continuous presence in

California for the practice of law; or

(2) hold out to the public or otherwise

represent that the lawyer is admitted to practice

law in California.

Comment

Paragraph (b)(1) prohibits lawyers from practicing

law in California unless otherwise entitled to practice

law in this state by court rule or other law. (See, e.g.,

Bus. & Prof. Code, § 6125 et seq.; see also Cal. Rules

of Court, rules 9.40 [counsel pro hac vice], 9.41

[appearances by military counsel], 9.42 [certified law

students], 9.43 [out-of-state attorney arbitration

counsel program], 9.44 [registered foreign legal

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50 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

consultant], 9.45 [registered legal services attorneys],

9.46 [registered in-house counsel], 9.47 [attorneys

practicing temporarily in California as part of

litigation], 9.48 [non-litigating attorneys temporarily

in California to provide legal services].)

Rule 5.6 Restrictions on a Lawyer’s Right to

Practice

(a) Unless authorized by law, a lawyer shall not

participate in offering or making:

(1) a partnership, shareholders, operating,

employment, or other similar type of agreement

that restricts the right of a lawyer to practice

after termination of the relationship, except an

agreement that concerns benefits upon

retirement; or

(2) an agreement that imposes a restriction on

a lawyer’s right to practice in connection with a

settlement of a client controversy, or otherwise.

(b) A lawyer shall not participate in offering or

making an agreement which precludes the reporting

of a violation of these rules.

authorized by Business and Professions Code sections

6092.5, subdivision (i) or 6093.

Comment

[1] Concerning the application of paragraph (a)(1),

see Business and Professions Code section 16602;

Howard v. Babcock (1993) 6 Cal.4th 409, 425 [25

Cal.Rptr.2d 80].

[2] Paragraph (a)(2) prohibits a lawyer from offering

or agreeing not to represent other persons* in

connection with settling a claim on behalf of a client.

[3] This rule does not prohibit restrictions that may

be included in the terms of the sale of a law practice

pursuant to rule 1.17.

Rule 5.7 [Reserved]

CHAPTER 6. PUBLIC SERVICE

Rule 6.1 [Reserved]

Rule 6.2 [Reserved]

Rule 6.3 Membership in Legal Services

Organization

A lawyer may serve as a director, officer or member of

a legal services organization, apart from the law firm*

in which the lawyer practices, notwithstanding that

the organization serves persons* having interests

adverse to a client of the lawyer. The lawyer shall not

knowingly* participate in a decision or action of the

organization:

(a) if participating in the decision or action would be

incompatible with the lawyer’s obligations to a client

under Business and Professions Code section 6068,

subdivision (e)(1) or rules 1.6(a), 1.7, 1.9, or 1.18; or

(b) where the decision or action could have a

material adverse effect on the representation of a

client of the organization whose interests are adverse

to a client of the lawyer.

Comment

Lawyers should support and participate in legal

service organizations. A lawyer who is an officer or a

member of such an organization does not thereby

have a lawyer-client relationship with persons* served

by the organization. However, there is potential

conflict between the interests of such persons* and

the interests of the lawyer’s clients. If the possibility

of such conflict disqualified a lawyer from serving on

the board of a legal services organization, the

profession’s involvement in such organizations would

be severely curtailed.

Rule 6.4 [Reserved]

Rule 6.5 Limited Legal Services Programs

(a) A lawyer who, under the auspices of a program

sponsored by a court, government agency, bar

association, law school, or nonprofit organization,

provides short-term limited legal services to a client

without expectation by either the lawyer or the

client that the lawyer will provide continuing

representation in the matter:

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2023 CURRENT RULES 51

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

(1) is subject to rules 1.7 and 1.9(a) only if the

lawyer knows* that the representation of the

client involves a conflict of interest; and

(2) is subject to rule 1.10 only if the lawyer

knows* that another lawyer associated with

the lawyer in a law firm* is prohibited from

representation by rule 1.7 or 1.9(a) with

respect to the matter.

(b) Except as provided in paragraph (a)(2), rule

1.10 is inapplicable to a representation governed by

this rule.

participating in the program will not be imputed to

other lawyers participating in the program.

Comment

[1] Courts, government agencies, bar associations,

law schools and various nonprofit organizations have

established programs through which lawyers provide

short-term limited legal services — such as advice or

the completion of legal forms that will assist persons*

in addressing their legal problems without further

representation by a lawyer. In these programs, such

as legal-advice hotlines, advice-only clinics or pro se

counseling programs, whenever a lawyer-client

relationship is established, there is no expectation

that the lawyer’s representation of the client will

continue beyond that limited consultation. Such

programs are normally operated under circumstances

in which it is not feasible for a lawyer to systematically

screen* for conflicts of interest as is generally

required before undertaking a representation.

[2] A lawyer who provides short-term limited legal

services pursuant to this rule must secure the

client’s informed consent* to the limited scope of

the representation. (See rule 1.2(b).) If a short-term

limited representation would not be reasonable*

under the circumstances, the lawyer may offer

advice to the client but must also advise the client of

the need for further assistance of counsel. Except as

provided in this rule, these rules and the State Bar

Act, including the lawyer’s duty of confidentiality

under Business and Professions Code section 6068,

subdivision (e)(1) and rules 1.6 and 1.9, are

applicable to the limited representation.

[3] A lawyer who is representing a client in the

circumstances addressed by this rule ordinarily is not

able to check systematically for conflicts of interest.

Therefore, paragraph (a)(1) requires compliance

with rules 1.7 and 1.9(a) only if the lawyer knows*

that the representation presents a conflict of

interest for the lawyer. In addition, paragraph (a)(2)

imputes conflicts of interest to the lawyer only if the

lawyer knows* that another lawyer in the lawyer’s

law firm* would be disqualified under rules 1.7 or

1.9(a).

[4] Because the limited nature of the services

significantly reduces the risk of conflicts of interest

with other matters being handled by the lawyer’s

law firm,* paragraph (b) provides that imputed

conflicts of interest are inapplicable to a

representation governed by this rule except as

provided by paragraph (a)(2). Paragraph (a)(2)

imputes conflicts of interest to the participating

lawyer when the lawyer knows* that any lawyer in

the lawyer’s firm* would be disqualified under rules

1.7 or 1.9(a). By virtue of paragraph (b), moreover, a

lawyer’s participation in a short-term limited legal

services program will not be imputed to the lawyer’s

law firm* or preclude the lawyer’s law firm* from

undertaking or continuing the representation of a

client with interests adverse to a client being

represented under the program’s auspices. Nor will

the personal disqualification of a lawyer participating

in the program be imputed to other lawyers

participating in the program.

[5] If, after commencing a short-term limited

representation in accordance with this rule, a lawyer

undertakes to represent the client in the matter on an

ongoing basis, rules 1.7, 1.9(a), and 1.10 become

applicable.

CHAPTER 7.

INFORMATION ABOUT LEGAL SERVICES

Rule 7.1 Communications Concerning a

Lawyer’s Services

(a) A lawyer shall not make a false or misleading

communication about the lawyer or the lawyer’s

services. A communication is false or misleading if it

contains a material misrepresentation of fact or law,

or omits a fact necessary to make the

communication considered as a whole not materially

misleading.

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52 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

(b) The Board of Trustees of the State Bar may

formulate and adopt standards as to

communications that will be presumed to violate

rule 7.1, 7.2, 7.3, 7.4 or 7.5. The standards shall only

be used as presumptions affecting the burden of

proof in disciplinary proceedings involving alleged

violations of these rules. “Presumption affecting the

burden of proof” means that presumption defined in

Evidence Code sections 605 and 606. Such standards

formulated and adopted by the Board, as from time

to time amended, shall be effective and binding on

all lawyers.

Comment

[1] This rule governs all communications of any

type whatsoever about the lawyer or the lawyer’s

services, including advertising permitted by rule 7.2.

A communication includes any message or offer

made by or on behalf of a lawyer concerning the

availability for professional employment of a lawyer

or a lawyer’s law firm* directed to any person.*

[2] A communication that contains an express

guarantee or warranty of the result of a particular

representation is a false or misleading

communication under this rule. (See also Bus. &

Prof. Code, § 6157.2, subd. (a).)

[3] This rule prohibits truthful statements that are

misleading. A truthful statement is misleading if it

omits a fact necessary to make the lawyer’s

communication considered as a whole not materially

misleading. A truthful statement is also misleading if

it is presented in a manner that creates a

substantial* likelihood that it will lead a reasonable*

person* to formulate a specific conclusion about the

lawyer or the lawyer’s services for which there is no

reasonable* factual foundation. Any communication

that states or implies “no fee without recovery” is

also misleading unless the communication also

expressly discloses whether or not the client will be

liable for costs.

[4] A communication that truthfully reports a

lawyer’s achievements on behalf of clients or former

clients, or a testimonial about or endorsement of the

lawyer, may be misleading if presented so as to lead

a reasonable* person* to form an unjustified

expectation that the same results could be obtained

for other clients in similar matters without reference

to the specific factual and legal circumstances of

each client’s case. Similarly, an unsubstantiated

comparison of the lawyer’s services or fees with the

services or fees of other lawyers may be misleading

if presented with such specificity as would lead a

reasonable* person* to conclude that the

comparison can be substantiated. An appropriate

disclaimer or qualifying language often avoids

creating unjustified expectations.

[5] This rule prohibits a lawyer from making a

communication that states or implies that the lawyer

is able to provide legal services in a language other

than English unless the lawyer can actually provide

legal services in that language or the communication

also states in the language of the communication the

employment title of the person* who speaks such

language.

[6] Rules 7.1 through 7.5 are not the sole basis for

regulating communications concerning a lawyer’s

services. (See, e.g., Bus. & Prof. Code, §§ 6150 –

6159.2, 17000 et seq.) Other state or federal laws

may also apply.

Rule 7.2 Advertising

(a) Subject to the requirements of rules 7.1 and

7.3, a lawyer may advertise services through any

written,* recorded or electronic means of

communication, including public media.

(b) A lawyer shall not compensate, promise or give

anything of value to a person* for the purpose of

recommending or securing the services of the lawyer

or the lawyer’s law firm,* except that a lawyer may:

(1) pay the reasonable* costs of

advertisements or communications permitted

by this rule;

(2) pay the usual charges of a legal services

plan or a qualified lawyer referral service. A

qualified lawyer referral service is a lawyer

referral service established, sponsored and

operated in accordance with the State Bar of

California’s Minimum Standards for a Lawyer

Referral Service in California;

(3) pay for a law practice in accordance with

rule 1.17;

(4) refer clients to another lawyer or a

nonlawyer professional pursuant to an

arrangement not otherwise prohibited under

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2023 CURRENT RULES 53

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

these Rules or the State Bar Act that provides

for the other person* to refer clients or

customers to the lawyer, if:

(i) the reciprocal referral arrangement

is not exclusive; and

(ii) the client is informed of the

existence and nature of the arrangement;

(5) offer or give a gift or gratuity to a person*

having made a recommendation resulting in

the employment of the lawyer or the lawyer’s

law firm,* provided that the gift or gratuity was

not offered or given in consideration of any

promise, agreement, or understanding that

such a gift or gratuity would be forthcoming or

that referrals would be made or encouraged in

the future.

shall include the name and address of at least one

lawyer or law firm* responsible for its content.

Comment

[1] This rule permits public dissemination of

accurate information concerning a lawyer and the

lawyer’s services, including for example, the lawyer’s

name or firm* name, the lawyer’s contact

information; the kinds of services the lawyer will

undertake; the basis on which the lawyer’s fees are

determined, including prices for specific services and

payment and credit arrangements; a lawyer’s foreign

language ability; names of references and, with their

consent, names of clients regularly represented; and

other information that might invite the attention of

those seeking legal assistance. This rule, however,

prohibits the dissemination of false or misleading

information, for example, an advertisement that sets

forth a specific fee or range of fees for a particular

service where, in fact, the lawyer charges or intends

to charge a greater fee than that stated in the

advertisement.

[2] Neither this rule nor rule 7.3 prohibits

communications authorized by law, such as court-

approved class action notices.

Paying Others to Recommend a Lawyer

[3] Paragraph (b)(1) permits a lawyer to

compensate employees, agents, and vendors who

are engaged to provide marketing or client-

development services, such as publicists, public-

relations personnel, business-development staff, and

website designers. See rule 5.3 for the duties of

lawyers and law firms* with respect to supervising

the conduct of nonlawyers who prepare marketing

materials and provide client development services.

[4] Paragraph (b)(4) permits a lawyer to make

referrals to another lawyer or nonlawyer

professional, in return for the undertaking of that

person* to refer clients or customers to the lawyer.

Such reciprocal referral arrangements must not

interfere with the lawyer’s professional judgment as

to making referrals or as to providing substantive

legal services. (See rules 2.1 and 5.4(c).) Conflicts of

interest created by arrangements made pursuant to

paragraph (b)(4) are governed by rule 1.7. A division

of fees between or among lawyers not in the same

law firm* is governed by rule 1.5.1.

Rule 7.3 Solicitation of Clients

(a) A lawyer shall not by in-person, live telephone or

real-time electronic contact solicit professional

employment when a significant motive for doing so is

the lawyer’s pecuniary gain, unless the person*

contacted:

(1) is a lawyer; or

(2) has a family, close personal, or prior

professional relationship with the lawyer.

(b) A lawyer shall not solicit professional

employment by written,* recorded or electronic

communication or by in-person, telephone or real-

time electronic contact even when not otherwise

prohibited by paragraph (a), if:

(1) the person* being solicited has made

known* to the lawyer a desire not to be solicited

by the lawyer; or

(2) the solicitation is transmitted in any

manner which involves intrusion, coercion,

duress or harassment.

communication from a lawyer soliciting professional

employment from any person* known* to be in need

of legal services in a particular matter shall include the

word “Advertisement” or words of similar import on

the outside envelope, if any, and at the beginning and

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54 CURRENT RULES 2023

An asterisk (*) identifies a word or phrase defined in rule 1.0.1

ending of any recorded or electronic communication,

unless the recipient of the communication is a

person* specified in paragraphs (a)(1) or (a)(2), or

unless it is apparent from the context that the

communication is an advertisement.

(d) Notwithstanding the prohibitions in paragraph

(a), a lawyer may participate with a prepaid or group

legal service plan operated by an organization not

owned or directed by the lawyer that uses in-person,

live telephone or real-time electronic contact to solicit

memberships or subscriptions for the plan from

persons* who are not known* to need legal services

in a particular matter covered by the plan.

(e) As used in this rule, the terms “solicitation” and

“solicit” refer to an oral or written* targeted

communication initiated by or on behalf of the lawyer

that is directed to a specific person* and that offers to

provide, or can reasonably* be understood as offering

to provide, legal services.

Comment

[1] A lawyer’s communication does not constitute a

solicitation if it is directed to the general public, such

as through a billboard, an Internet banner

advertisement, a website or a television commercial,

or if it is in response to a request for information or is

automatically generated in response to Internet

searches.

[2] Paragraph (a) does not apply to situations in

which the lawyer is motivated by considerations other

than the lawyer’s pecuniary gain. Therefore,

paragraph (a) does not prohibit a lawyer from

participating in constitutionally protected activities of

bona fide public or charitable legal-service

organizations, or bona fide political, social, civic,

fraternal, employee or trade organizations whose

purposes include providing or recommending legal

services to its members or beneficiaries. (See, e.g., In

re Primus (1978) 436 U.S. 412 [98 S.Ct. 1893].)

[3] This rule does not prohibit a lawyer from

contacting representatives of organizations or groups

that may be interested in establishing a bona fide

group or prepaid legal plan for their members,

insureds, beneficiaries or other third parties for the

purpose of informing such entities of the availability

of and details concerning the plan or arrangement

which the lawyer or lawyer’s firm* is willing to offer.

[4] Lawyers who participate in a legal service plan as

permitted under paragraph (d) must comply with

rules 7.1, 7.2, and 7.3(b). (See also rules 5.4 and 8.4(a).)

Rule 7.4 Communication of Fields of Practice

and Specialization

(a) A lawyer shall not state that the lawyer is a

certified specialist in a particular field of law, unless:

(1) the lawyer is currently certified as a

specialist by the Board of Legal Specialization, or

any other entity accredited by the State Bar to

designate specialists pursuant to standards

adopted by the Board of Trustees; and

(2) the name of the certifying organization is

clearly identified in the communication.

(b) Notwithstanding paragraph (a), a lawyer may

communicate the fact that the lawyer does or does

not practice in particular fields of law. A lawyer may

also communicate that his or her practice specializes

in, is limited to, or is concentrated in a particular field

of law, subject to the requirements of rule 7.1.

Rule 7.5 Firm* Names and Trade Names

(a) A lawyer shall not use a firm* name, trade name

or other professional designation that violates rule

7.1.

(b) A lawyer in private practice shall not use a firm*

name, trade name or other professional designation

that states or implies a relationship with a

government agency or with a public or charitable legal

services organization, or otherwise violates rule 7.1.

practices in or has a professional relationship with a

law firm* or other organization unless that is the fact.

Comment

The term “other professional designation” includes,

but is not limited to, logos, letterheads, URLs, and

signature blocks.

Rule 7.6 [Reserved]

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CHAPTER 8.

MAINTAINING THE INTEGRITY

OF THE PROFESSION

Rule 8.1 False Statement Regarding

Application for Admission to Practice Law

(a) An applicant for admission to practice law shall

not, in connection with that person’s* own

application for admission, make a statement of

material fact that the lawyer knows* to be false, or

make such a statement with reckless disregard as to

its truth or falsity.

(b) A lawyer shall not, in connection with another

person’s* application for admission to practice law,

make a statement of material fact that the lawyer

knows* to be false.

lawyer in connection with an application for

admission, shall not fail to disclose a fact necessary to

correct a statement known* by the applicant or the

lawyer to have created a material misapprehension in

the matter, except that this rule does not authorize

disclosure of information protected by Business and

Professions Code section 6068, subdivision (e) and

rule 1.6.

(d) As used in this rule, “admission to practice law”

includes admission or readmission to membership in

the State Bar; reinstatement to active membership in

the State Bar; and any similar process relating to

admission or certification to practice law in California

or elsewhere.

Comment

[1] A person* who makes a false statement in

connection with that person’s* own application for

admission to practice law may be subject to discipline

under this rule after that person* has been admitted.

(See, e.g., In re Gossage (2000) 23 Cal.4th 1080 [99

Cal.Rptr.2d 130].)

[2] A lawyer’s duties with respect to a pro hac vice

application or other application to a court for

admission to practice law are governed by rule 3.3.

[3] A lawyer representing an applicant for admission

to practice law is governed by the rules applicable to

the lawyer-client relationship, including Business and

Professions Code section 6068, subdivision (e)(1) and

rule 1.6. A lawyer representing a lawyer who is the

subject of a disciplinary proceeding is not governed by

this rule but is subject to the requirements of rule 3.3.

Rule 8.1.1 Compliance with Conditions of

Discipline and Agreements in Lieu of Discipline

A lawyer shall comply with the terms and conditions

attached to any agreement in lieu of discipline, any

public or private reproval, or to other discipline

administered by the State Bar pursuant to Business

and Professions Code sections 6077 and 6078 and

California Rules of Court, rule 9.19.

Comment

Other provisions also require a lawyer to comply with

agreements in lieu of discipline and conditions of

discipline. (See, e.g., Bus. & Prof. Code, § 6068, subds.

(k), (l).)

Rule 8.2 Judicial Officials

(a) A lawyer shall not make a statement of fact that

the lawyer knows* to be false or with reckless

disregard as to its truth or falsity concerning the

qualifications or integrity of a judge or judicial

officer, or of a candidate for election or appointment

to judicial office.

(b) A lawyer who is a candidate for judicial office in

California shall comply with canon 5 of the California

Code of Judicial Ethics. For purposes of this rule,

“candidate for judicial office” means a lawyer

seeking judicial office by election. The determination

of when a lawyer is a candidate for judicial office by

election is defined in the terminology section of the

California Code of Judicial Ethics. A lawyer’s duty to

comply with this rule shall end when the lawyer

announces withdrawal of the lawyer’s candidacy or

when the results of the election are final, whichever

occurs first.

office shall comply with canon 5B(1) of the California

Code of Judicial Ethics. A lawyer becomes an

applicant seeking judicial office by appointment at

the time of first submission of an application or

personal data questionnaire to the appointing

authority. A lawyer’s duty to comply with this rule

shall end when the lawyer advises the appointing

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authority of the withdrawal of the lawyer’s

application.

Comment

To maintain the fair and independent administration

of justice, lawyers should defend judges and courts

unjustly criticized. Lawyers also are obligated to

maintain the respect due to the courts of justice and

judicial officers. (See Bus. & Prof. Code, § 6068, subd.

(b).)

Rule 8.3 Reporting Professional Misconduct

(a) A lawyer shall, without undue delay, inform the

State Bar, or a tribunal* with jurisdiction to

investigate or act upon such misconduct, when the

lawyer knows* of credible evidence that another

lawyer has committed a criminal act or has engaged in

conduct involving dishonesty, fraud,* deceit, or

reckless or intentional misrepresentation or

misappropriation of funds or property that raises a

substantial* question as to that lawyer’s honesty,

trustworthiness, or fitness as a lawyer in other

respects.

(b) Except as required by paragraph (a), a lawyer

may, but is not required to, report to the State Bar a

violation of these Rules or the State Bar Act.

in paragraph (a) excludes conduct that would be a

criminal act in another state, United States territory,

or foreign jurisdiction, but would not be a criminal act

in California.

(d) This rule does not require or authorize

disclosure of information gained by a lawyer while

participating in a substance use or mental health

program, or require disclosure of information

protected by Business and Professions Code section

6068, subdivision (e) and rules 1.6 and 1.8.2;

mediation confidentiality; the lawyer-client privilege;

other applicable privileges; or by other rules or laws,

including information that is confidential under

Business and Professions Code section 6234.

Comment

[1] This rule does not abrogate a lawyer’s

obligations to report the lawyer’s own conduct as

required by these rules or the State Bar Act. (See, e.g.,

rule 8.4.1(d) and (e); Bus. & Prof. Code, § 6068,

subd. (o).)

[2] The duty to report under paragraph (a) is not

intended to discourage lawyers from seeking counsel.

This rule does not apply to a lawyer who is consulted

about or retained to represent a lawyer whose

conduct is in question, or to a lawyer consulted in a

professional capacity by another lawyer on whether

the inquiring lawyer has a duty to report a third-party

lawyer under this rule. The duty to report under

paragraph (a) does not apply if the report would

involve disclosure of information that is gained by a

lawyer while participating as a member of a state or

local bar association ethics hotline or similar service.

[3] The duty to report without undue delay under

paragraph (a) requires the lawyer to report as soon as

the lawyer reasonably believes* the reporting will not

cause material prejudice or damage to the interests of

a client of the lawyer or a client of the lawyer’s firm.*

The lawyer should also consider the applicability of

other rules such as rules 1.4 (the duty to

communicate), 1.7(b) (material limitation conflict), 5.1

(responsibilities of managerial and supervisorial

lawyers), and 5.2 (responsibilities of a subordinate

lawyer).

[4] This rule limits the reporting obligation to those

offenses that a self-regulating profession must

vigorously endeavor to prevent. A measure of

judgment is, therefore, required in complying with the

provisions of this rule. The term “substantial*

question” refers to the seriousness of the possible

offense and not the quantum of evidence of which

the lawyer is aware.

[5] Information about a lawyer’s misconduct or

fitness may be received by a lawyer while

participating in a substance use or mental health

program, including but not limited to the Attorney

Diversion and Assistance Program. (See Bus. & Prof.

Code, § 6234.) In these circumstances, providing for

an exception to the reporting requirement of

paragraph (a) of this rule encourages lawyers to seek

treatment through such programs. Conversely,

without such an exception, lawyers may hesitate to

seek assistance from these programs, which may then

result in additional harm to their professional careers

and additional injury to the welfare of clients and the

public.

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[6] The rule permits reporting to either the State

Bar or to “a tribunal* with jurisdiction to investigate

or act upon such misconduct.” A determination

whether to report to a tribunal,* instead of the State

Bar, will depend on whether the misconduct arises

during pending litigation and whether the particular

tribunal* has the power to “investigate or act upon”

the alleged misconduct. Where the litigation is

pending before a non-judicial tribunal,* such as a

private arbitrator, reporting to the tribunal* may not

be sufficient. If the tribunal* is a proper reporting

venue, evidence of lawyer misconduct adduced

during those proceedings may be admissible

evidence in subsequent disciplinary proceedings.

(Caldwell v. State Bar (1975) 13 Cal.3d 488, 497.)

Furthermore, a report to the proper tribunal* may

also trigger obligations for the tribunal* to report

the misconduct to the State Bar or to take other

“appropriate corrective action.” (See Bus. & Prof.

Code, §§ 6049.1, 6086.7, 6068.8; and Cal. Code of

Jud. Ethics, canon 3D(2).)

[7] A report under this rule to a tribunal*

concerning another lawyer’s criminal act or fraud*

may constitute a “reasonable* remedial measure”

within the meaning of rule 3.3(b).

[8] In addition to reporting as required by

paragraph (a), a report may also be made to another

appropriate agency. A lawyer must not threaten to

present criminal, administrative or disciplinary

charges to obtain an advantage in a civil dispute in

violation of rule 3.10.

[9] A lawyer may also be disciplined for

participating in an agreement that precludes the

reporting of a violation of the rules. (See rule 5.6(b);

and Bus. & Prof. Code, § 6090.5.)

[10] Communications to the State Bar relating to

lawyer misconduct are “privileged, and no lawsuit

predicated thereon may be instituted against any

person.” (Bus. & Prof. Code, § 6094.) However,

lawyers may be subject to criminal penalties for false

and malicious reports or complaints filed with the

State Bar or be subject to discipline or other

penalties by offering false statements or false

evidence to a tribunal.* (See rule 3.3(a); Bus. & Prof.

Code, §§ 6043.5, subd. (a), 6068, subd. (d).)

[Publisher’s Note: Rule 8.3 was approved by order of

the Supreme Court, effective August 1, 2023.]

Rule 8.4 Misconduct

It is professional misconduct for a lawyer to:

(a) violate these rules or the State Bar Act,

knowingly* assist, solicit, or induce another to do so,

or do so through the acts of another;

(b) commit a criminal act that reflects adversely on

the lawyer’s honesty, trustworthiness, or fitness as a

lawyer in other respects;

deceit, or reckless or intentional misrepresentation;

(d) engage in conduct that is prejudicial to the

administration of justice;

(e) state or imply an ability to influence improperly

a government agency or official, or to achieve results

by means that violate these rules, the State Bar Act, or

other law; or

(f) knowingly* assist, solicit, or induce a judge or

judicial officer in conduct that is a violation of an

applicable code of judicial ethics or code of judicial

conduct, or other law. For purposes of this rule,

“judge” and “judicial officer” have the same meaning

as in rule 3.5(c).

Comment

[1] A violation of this rule can occur when a lawyer

is acting in propria persona or when a lawyer is not

practicing law or acting in a professional capacity.

[2] Paragraph (a) does not prohibit a lawyer from

advising a client concerning action the client is legally

entitled to take.

[3] A lawyer may be disciplined for criminal acts as

set forth in Business and Professions Code sections

6101 et seq., or if the criminal act constitutes “other

misconduct warranting discipline” as defined by

California Supreme Court case law. (See In re Kelley

(1990) 52 Cal.3d 487 [276 Cal.Rptr. 375].)

[4] A lawyer may be disciplined under Business and

Professions Code section 6106 for acts involving moral

turpitude, dishonesty, or corruption, whether

intentional, reckless, or grossly negligent.

[5] Paragraph (c) does not apply where a lawyer

advises clients or others about, or supervises, lawful

covert activity in the investigation of violations of civil

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or criminal law or constitutional rights, provided the

lawyer’s conduct is otherwise in compliance with

these rules and the State Bar Act.

[6] This rule does not prohibit those activities of a

particular lawyer that are protected by the First

Amendment to the United States Constitution or by

Article I, section 2 of the California Constitution.

Rule 8.4.1 Prohibited Discrimination,

Harassment and Retaliation

(a) In representing a client, or in terminating or

refusing to accept the representation of any client, a

lawyer shall not:

(1) unlawfully harass or unlawfully

discriminate against persons* on the basis of any

protected characteristic; or

(2) unlawfully retaliate against persons.*

(b) In relation to a law firm’s operations, a lawyer

shall not:

(1) on the basis of any protected

characteristic,

(i) unlawfully discriminate or knowingly*

permit unlawful discrimination;

(ii) unlawfully harass or knowingly*

permit the unlawful harassment of an

employee, an applicant, an unpaid intern

or volunteer, or a person* providing

services pursuant to a contract; or

(iii) unlawfully refuse to hire or employ a

person*, or refuse to select a person* for a

training program leading to employment,

or bar or discharge a person* from

employment or from a training program

leading to employment, or discriminate

against a person* in compensation or in

terms, conditions, or privileges of

employment; or

(2) unlawfully retaliate against persons.*

(1) “protected characteristic” means 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;

(2) “knowingly permit” means to fail to

advocate corrective action where the lawyer

knows* of a discriminatory policy or practice

that results in the unlawful discrimination or

harassment prohibited by paragraph (b);

(3) “unlawfully” and “unlawful” shall be

determined by reference to applicable state and

federal statutes and decisions making unlawful

discrimination or harassment in employment

and in offering goods and services to the public;

and

(4) “retaliate” means to take adverse action

against a person* because that person* has (i)

opposed, or (ii) pursued, participated in, or

assisted any action alleging, any conduct

prohibited by paragraphs (a)(1) or (b)(1) of this

rule.

(d) A lawyer who is the subject of a State Bar

investigation or State Bar Court proceeding alleging a

violation of this rule shall promptly notify the State

Bar of any criminal, civil, or administrative action

premised, whether in whole or part, on the same

conduct that is the subject of the State Bar

investigation or State Bar Court proceeding.

(e) Upon being issued a notice of a disciplinary

charge under this rule, a lawyer shall:

(1) if the notice is of a disciplinary charge

under paragraph (a) of this rule, provide a copy

of the notice to the California Department of

Fair Employment and Housing and the United

States Department of Justice, Coordination and

Review Section; or

(2) if the notice is of a disciplinary charge

under paragraph (b) of this rule, provide a copy

of the notice to the California Department of

Fair Employment and Housing and the United

States Equal Employment Opportunity

Commission.

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(f) This rule shall not preclude a lawyer from:

(1) representing a client alleged to have

engaged in unlawful discrimination, harassment,

or retaliation;

(2) declining or withdrawing from a

representation as required or permitted by rule

1.16; or

(3) providing advice and engaging in advocacy

as otherwise required or permitted by these

rules and the State Bar Act.

Comment

[1] Conduct that violates this rule undermines

confidence in the legal profession and our legal system

and is contrary to the fundamental principle that all

people are created equal. A lawyer may not engage in

such conduct through the acts of another. (See rule

8.4(a).) In relation to a law firm’s operations, this rule

imposes on all law firm* lawyers the responsibility to

advocate corrective action to address known*

harassing or discriminatory conduct by the firm* or

any of its other lawyers or nonlawyer personnel. Law

firm* management and supervisorial lawyers retain

their separate responsibility under rules 5.1 and 5.3.

Neither this rule nor rule 5.1 or 5.3 imposes on the

alleged victim of any conduct prohibited by this rule

any responsibility to advocate corrective action.

[2] The conduct prohibited by paragraph (a)

includes the conduct of a lawyer in a proceeding

before a judicial officer. (See Cal. Code Jud. Ethics,

canon 3B(6) [“A judge shall require lawyers in

proceedings before the judge to refrain from

manifesting, by words or conduct, bias or prejudice

based upon race, sex, gender, religion, national origin,

ethnicity, disability, age, sexual orientation, marital

status, socioeconomic status, or political affiliation

against parties, witnesses, counsel, or others.”].) A

lawyer does not violate paragraph (a) by referring to

any particular status or group when the reference is

relevant to factual or legal issues or arguments in the

representation. While both the parties and the court

retain discretion to refer such conduct to the State

Bar, a court’s finding that peremptory challenges

were exercised on a discriminatory basis does not

alone establish a violation of paragraph (a).

[3] A lawyer does not violate this rule by limiting the

scope or subject matter of the lawyer’s practice or by

limiting the lawyer’s practice to members of

underserved populations. A lawyer also does not

violate this rule by otherwise restricting who will be

accepted as clients for advocacy-based reasons, as

required or permitted by these rules or other law.

[4] This rule does not apply to conduct protected by

the First Amendment to the United States

Constitution or by Article I, section 2 of the California

Constitution.

[5] What constitutes a failure to advocate corrective

action under paragraph (c)(2) will depend on the

nature and seriousness of the discriminatory policy or

practice, the extent to which the lawyer knows* of

unlawful discrimination or harassment resulting from

that policy or practice, and the nature of the lawyer’s

relationship to the lawyer or law firm* implementing

that policy or practice. For example, a law firm* non-

management and non-supervisorial lawyer who

becomes aware that the law firm* is engaging in a

discriminatory hiring practice may advocate corrective

action by bringing that discriminatory practice to the

attention of a law firm* management lawyer who

would have responsibility under rule 5.1 or 5.3 to take

reasonable* remedial action upon becoming aware of

a violation of this rule.

[6] Paragraph (d) ensures that the State Bar and the

State Bar Court will be provided with information

regarding related proceedings that may be relevant in

determining whether a State Bar investigation or a

State Bar Court proceeding relating to a violation of

this rule should be abated.

[7] Paragraph (e) recognizes the public policy served

by enforcement of laws and regulations prohibiting

unlawful discrimination, by ensuring that the state and

federal agencies with primary responsibility for

coordinating the enforcement of those laws and

regulations is provided with notice of any allegation of

unlawful discrimination, harassment, or retaliation by

a lawyer that the State Bar finds has sufficient merit to

warrant issuance of a notice of a disciplinary charge.

[8] This rule permits the imposition of discipline for

conduct that would not necessarily result in the award

of a remedy in a civil or administrative proceeding if

such proceeding were filed.

[9] A disciplinary investigation or proceeding for

conduct coming within this rule may also be initiated

and maintained if such conduct warrants discipline

under California Business and Professions Code

sections 6106 and 6068, the California Supreme

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Court’s inherent authority to impose discipline, or

other disciplinary standard.

Rule 8.5 Disciplinary Authority; Choice of Law

(a) Disciplinary Authority.

A lawyer admitted to practice in California is subject

to the disciplinary authority of California, regardless of

where the lawyer’s conduct occurs. A lawyer not

admitted in California is also subject to the disciplinary

authority of California if the lawyer provides or offers

to provide any legal services in California. A lawyer

may be subject to the disciplinary authority of both

California and another jurisdiction for the same

conduct.

(b) Choice of Law.

In any exercise of the disciplinary authority of

California, the rules of professional conduct to be

applied shall be as follows:

(1) for conduct in connection with a matter

pending before a tribunal,* the rules of the

jurisdiction in which the tribunal* sits, unless the

rules of the tribunal* provide otherwise; and

(2) for any other conduct, the rules of the

jurisdiction in which the lawyer’s conduct

occurred, or, if the predominant effect of the

conduct is in a different jurisdiction, the rules of

that jurisdiction shall be applied to the conduct.

A lawyer shall not be subject to discipline if the

lawyer’s conduct conforms to the rules of a

jurisdiction in which the lawyer reasonably

believes* the predominant effect of the lawyer’s

conduct will occur.

Comment

Disciplinary Authority

The conduct of a lawyer admitted to practice in

California is subject to the disciplinary authority of

California. (See Bus. & Prof. Code, §§ 6077, 6100.)

Extension of the disciplinary authority of California to

other lawyers who provide or offer to provide legal

services in California is for the protection of the

residents of California. A lawyer disciplined by a

disciplinary authority in another jurisdiction may be

subject to discipline in California for the same

conduct. (See, e.g., § 6049.1.)