Rule Comparison Flashcards
Competence.
1. ABA simply requires that a lawyer “shall provide
competent representation.”
2. California requires intentional, reckless, or repeated
incompetent conduct. California also includes diligence as
a component of competence.
NOTE: The Cal Bar Exam has tested this difference.
Difference between MR 1.1 and Cal 3-110
Advising violation of law. Rules are similar but note:
1. MR expressly provides that L “may discuss the
legal consequences of any proposed course of conduct.”
2. Cal Rule prohibits the violation of any law, etc.
“unless the member believes in good faith that such law,
rule, or ruling is invalid.”
Difference between MR 1.2(d) and Cal 3-210
Diligence. California does not have a separate diligence
rule but includes the diligence duty in its competence rule.
Difference between MR 1.3 and Cal 3-110(B)
Communication.
1. Rule requires communication re any decision
that requires “informed consent” and requires
lawyer to reasonably consult w/ client about strategy. Note
that included in “informed consent” are settlement offers.
2. Cal. Rule is a separate rule that governs a
lawyer’s duties w/ respect to settlement offers.
3. Cal. Rule requires a lawyer to communicate to
the client “significant developments” in the representation,
to promptly comply with reasonably client requests for
information and copies of significant documents.
NOTE: The Cal Bar Exam has tested duty to communicate
generally and the duty to communicate settlement offers.
Difference between MR 1.4 and Cal 3-500 and 3-510
Fees.
1. Model Rules prohibit unreasonable fees. Cal prohibits
unconscionable or illegal fee.
Model Rules add “the fee customarily charged in the
locality for similar legal services” as a factor in determining
the reasonableness of fee.
2. Cal Rule adds: (1) The amount of the fee in
proportion to the value of the services performed; (2) The
relative sophistication of the member and the client; (11)
the informed consent of the client. Cal. Rule does not
include “fee customarily charged in the locality,” etc.
because that factor is not relevant to whether a fee is
unconscionable.
NOTE: The Cal Bar Exam has tested this.
Difference between MR 1.5(a) and Cal 4-200(A) & (B)
Contingent Fees. Very similar, i.e., both Model Rule and
California statute require that
terms of fee K be set out in a writing signed by client, etc.,
but remedy for violation in California is a voided
agreement at option of client, not discipline.
NOTE: The Cal Bar Exam has tested this.
Difference between MR 1.5(c) and §6147
Fee Splitting (aka Fee Division). Note:
1. ABA requires fee split be in proportion to services
performed or that the referring lawyer assume joint
responsibility, and that client’s agreement to each lawyer’s
share be “confirmed in writing” (e.g., email sent by lawyer).
2. Cal. Rule does not require joint responsibility or
allocation of fee based upon proportion of services
provided (i.e., referring L need not work on the matter), but
requires client consent in writing after disclosure (i.e., C
must actually sign off).
Note two things re Cal Rule: (i) Client need only
consent before the fee split is made between lawyers; (ii)
Agreement between lawyers need not be in writing.
NOTE: The Cal. Bar Exam has tested this several times.
Difference between MR 1.5(e) and Cal 2-200
Confidentiality.
1. Cal. confidentiality duty in B&P § . Only
disclosure exception is for death or substantial bodily
harm.
2. Model Rule provides for 6 exceptions in addition to
death or substantial bodily harm, including: prevent
fraud; rectify fraud; legal advice re rule
compliance; broad self-defense, including defense
against third-party claims; comply w/ law or court
order; and to check for conflicts when lawyer
changes firms or law firms merge.
3. MR also imposes an additional express duty on
L to make reasonable efforts to prevent the inadvertent or
unauthorized disclosure of, or unauthorized access to,
confidential information. Given the preeminence of
confidentiality in California, a court would likely find this
latter duty is impliedly found in
NOTE: The Cal. Bar Exam has tested this repeatedly.
Difference between MR 1.6 and Cal 3-100 and §6068(e)
Current Client Conflicts – Directly Adverse.
1. Main difference re adverse representations is that Cal.
requires “informed written disclosure” and “informed
written consent.” Informed written consent requires that
the disclosure to the client be in writing. The disclosure
must include a description of the reasonably foreseeable
adverse consequences of the client proceeding with a
conflicted representation. See Cal. Rule
2. ABA requires only consent “confirmed in writing.” This
latter requirement means that the L’s disclosure to client
need not be in writing and L need only confirm in writing
(e.g., letter, email, text message) that the client consented
orally.
3. Model Rule, which contains the client consent
exception to the general rule in , also requires that
the lawyer “reasonably believe[] that the lawyer will be
able to provide competent and diligent representation to
each affected client.”
4. California has no similar requirement in the Cal. Rules
but the requirement that a lawyer be able to provide
competent representation to both clients is found in case
law. See, e.g., Klemm v. Superior Court, 75 Cal.App.3d
893 (1977).
Difference between MR 1.7(a)(1) and Cal 3-310(C)
Current Client Conflicts – Material Limitation/ Personal
Interest Conflicts.
1. Model Rule sets a general standard, i.e., a
lawyer may not represent a client if “there is a significant
risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to
another client, a former client or a third person or by a
personal interest of the lawyer.”
2. California has a checklist approach in, i.e., it
identifies with specificity the 4 kinds of material interest
conflict that are prohibited.
3. Consent. Under, if there is a material risk, L
must obtain informed consent of both pursuant to.
The consent must comply with , i.e., lawyer must
“reasonably believe,” etc., and client consent must be
confirmed in writing.
On the other hand, requires only that the L
provide the client with “written disclosure”. (on “disclosure,”
The client’s consent to kinds of
conflicts is not required.
Difference between MR 1.7(a)(2) and Cal 3-310(B)
Business Transactions & Adverse Pecuniary Interests.
Pretty much the same four requirements:
(1) Terms fair & reasonable for client;
(2) Terms disclosed in writing to client in language the
client can understand;
(3) Client advised to consult w/ independent lawyer and
given reasonable opportunity to do so;
(4) Client consents in writing. Note that this is one of the
few places where the Model Rules require that “the client
give informed consent, in a writing signed by the client,”
(emphasis added), rather than just requiring the client’s
consent be “confirmed in writing.”
NOTE: The Cal. Bar Exam has tested this repeatedly.
Difference between MR 1.8(a) and Cal 3-300
Use of confidential information to client’s disadvantage –
no express corresponding California Rule but this would
be a breach of a lawyer’s common law duty of loyalty.
NOTE: The Cal. Bar Exam has tested this rule.
MR 1.8(b)
Client Gifts. California does not necessarily prohibit a
lawyer from preparing an instrument by which the lawyer
receives a gift – unless there is overreaching, Discussion.
However, Probate Code § 21350 prohibits it, and it is a
ground for discipline under B&P § 6103.6.
NOTE: The Cal. Bar Exam has tested this rule.
Difference between MR 1.8(c) and Cal 4-400
Literary or media rights. California has no rule
prohibiting it, so it would be permitted if lawyer complies
with. See Maxwell v. Superior Court (Cal. 1982) 639
P.2d 248 (arguably the case limits such contracts to
situations where client is indigent and otherwise could not
retain counsel of choice).
NOTE: The Cal. Bar Exam has tested this.
MR 1.8(d)
Payment of personal or business expenses of client.
1. In Model Rule, payment of court costs and expenses
without any expectation of repayment can be made if
client is “indigent.”
2. Cal. Rule does not have the same indigency
limitation. and (2) have no Model
Rule counterpart.
3. Both MR and Cal. Rule provide repayment can be
contingent on outcome of matter (i.e., a personal injury L
can advance costs of litigation, which would then be taken
out of the judgment if suit is successful or L will take the
loss if suit is unsuccessful).
NOTE: The Cal Bar Exam has tested this.
Difference between MR 1.8(e) and Cal 4-210
Third party payment. Very similar in that both require three
conditions to representation: (i) no interference with L’s
judgment; (ii) protect confidential information; (iii) client
consent.
1. California requires client’s “informed written consent”
(vs. Model Rule, which requires only “informed consent,”
not even that client’s consent be confirmed in writing.)
2. In California, consent not required if no need for
consent (and thus no disclosure required) is authorized by
law, e.g., a public defender.
NOTE: The Cal Bar Exam has tested this.
Difference between MR 1.8(f) and Cal 3-310(F)
Aggregate settlements. Note that both provisions require
the client’s informed written consent (Cal. Rule) or “in a
writing signed by the client.” (MR).
Difference between MR 1.8(g) and Cal 3-310(D)
Limiting Liability to Client.
1. Unlike, which permits limitations on
prospective liability where client represented by
independent counsel, Cal.Rule absolutely
prohibits such limitations. What these provisions mean is
that a lawyer cannot have a client agree not to sue the
lawyer for malpractice, breach of fiduciary duty, etc.,
before a problem has even arisen. Compare #2, below, re
settling a claim after the problem has arisen.
2. On the other hand, (2) and , re
settling malpractice claims, are virtually identical. These
provisions allow a lawyer to obtain from a client as part of
a settlement a promise not to assert any further claims
arising out of the alleged negligent representation.
NOTE: Cal Bar Exam tested this
Difference between MR 1.8(h) and Cal 3-400
Prohibition on acquiring proprietary interest in cause of
action. Cal. has no counterpart
Difference between MR 1.8(i) and Cal 3-300
Sex with Client. Note:
1. Model Rule has absolute prohibition on engaging in
sexual relations w/ client except for pre-existing
consensual relationships.
2. California prohibits such relationships only if quid pro
quo, overreaching, or relationship causes lawyer to
provide incompetent services.
NOTE: This has been tested several times on the Cal. Bar
Exam.
Difference between MR 1.8(j) and Cal 3-120
Former client conflicts. No real differences here, at least
in terms of outcome.
1. In essence, California accomplishes in one paragraph,
, what takes the Model Rule three paragraphs.
2. Model Rule uses “substantially related” as the
standard for discipline; Cal. Rule identifies what the
substantial relationship test is designed to prevent, i.e.,
representation of a person adverse to a former client
where the lawyer has acquired confidential information
that is material to the present representation.
3. Cal. substantial relationship test is in case law.
Difference between MR 1.9 and Cal 3-310(E)
Vicarious (Imputed) Disqualification.
1. provides that if one lawyer in a firm is
disqualified from a representation, that L’s disqualification
is imputed to every other lawyer in the firm.
2. California has no rule counterpart, but there is
abundant case law providing same. E.g., People ex rel
Dept. of Corp. v. Speedee Oil Change Sys., Inc., 20
Cal.4th 1135 (1999); Hendriksen v. Great American S & L,
14 Cal.Rptr.2d 184 (Cal.App. 1992).
NOTE: The Cal Bar Exam has tested this.
MR 1.10(a)(1)
Ethical Screening for Private-Private Migration.
1. In February, 2009, MR was amended to permit
such screening. putting lawyers who
move from one private firm to another on the same footing
as lawyers who move from private practice into
government service or vice versa. That means that a
lawyer who migrates from one private firm to another can
be screened, preventing the firm to which the lawyer
moves from being disqualified.
2. NOTE: to (iii) sets out the procedures
that must be established in the screening firm to create an
effective screen. See also MR 1.0, comment [9].
3. Just as California has no rule providing for imputed
disqualification but addresses the topic in case law, there
is no rule that permits ethical screening when a lawyer
moves from one private firm to another. However, Kirk v.
First American Title Ins. Co., 183 Cal.App.4th 776, 108
Cal.Rptr.3d 620 (2010), review denied (6/23/2010),
comprehensively summarizes the California case law on
vicarious disqualification and screening and makes a
strong argument for the broad kind of screening as
permitted under Still, Kirk involved a lawyer
who had obtained confidential information in a prospective
client situation, so its ruling might not extend as far as the
screening available in
NOTE: The Cal Bar Exam has tested this concept.
MR 1.10(a)(2)
Exception to vicarious disqualification when personally
DQ’d lawyer has left firm.
1. MR provides there is no imputed
disqualification of a law firm that a disqualified lawyer has
left, so long as no lawyer remaining in the firm has
confidential information.
2. California has no rule counterpart, but to the same
effect, see Goldberg v. Warner-Chapell Music, Inc. (2005)
125 Cal.App.4th 752.
MR 1.10(b)
Government Lawyer Conflicts.
1. MR governs conflicts and disqualifications when
a lawyer either moves from government service to private
practice or vice versa, so long as the moving lawyer is
screened.
2. California has no rule counterpart to this rule that
permits screening for public-private lateral movement, but
there is substantial case law that permits screening to
avoid the disqualification of the firm or government law
office to which the lawyer moves. See, e.g., City & County
of San Francisco v. Cobra Solutions, Inc., 38 Cal.4th 839,
135 P.3d 20, 43 Cal.Rptr.3d 771 (2006); City of Santa
Barbara v. Superior Court,122 Cal.App.4th 17, 18
Cal.Rptr.3d 403 (2004); Chambers v. Superior Court
(1981) 121 Cal.App.3d 893.
3. Although public defenders are paid by government,
they are not government lawyers in the sense of
representing the government. Nevertheless, the same
rules as apply to lawyers who are government employees
apply to public defenders, i.e., screening is permitted to
avoid disqualification.
NOTE: The Cal Bar Exam has tested this concept.
MR 1.11
Former Judge, Third Party Neutral or Judicial Law Clerk.
No corresponding Cal. Rule, but see Cho v. Superior
Court (1995) 39 Cal. App.4th 113, 45 Cal.Rptr.2d 863
MR 1.12
Organization As Client. A number of differences:
1. Model Rule requires as trigger lawyer’s knowledge of
conduct that is (1) a “violation of law” or “violation of legal
obligation to organization,” AND (2) likely to result in
substantial injury. Rule , however, requires
knowledge of conduct that is a “violation of law” OR is
likely to result in substantial injury.
2. MR mandates going up the ladder (unless not in
organization’s best interests. See . Rule
permits a lawyer to go up the ladder.
3. MR permits reporting out, i.e., permits L to
report organization’s misconduct to a third part, e.g., a
regulatory agency like the SEC, and has other provisions
related to it., (e). Rule requires adherence to
6068(e) duties, i.e., prohibits reporting out. L’s only option
is to withdraw or resign from representation.
NOTE: This has been tested on the Cal. Bar Exam.
Difference between MR 1.13 and Cal 3-600
Client with diminished capacity. No California Rule
counterpart.
MR 1.14
Safekeeping Property.
1. Differences, but both adhere to the cardinal rules,
“Thou Shalt Not Steal” and “Thou Shalt Not Commingle.”
2. There is a duty to deposit client funds on the one
hand, and a duty to account to the client how the lawyer
has disposed of the funds on the other.
Difference between MR 1.15 and Cal 4-100
Declining or Terminating Representation. No major
differences, except that mandates withdrawal if
“representation will result violation of the rules of
professional conduct or other law.”
Cal. Rule mandates withdrawal if “continued
employment will result in violation of these rules or the
State Bar Act.” In practice, result is probably the same,
i.e., because B&P Code sections, e.g., § 6068(a), prohibit
lawyer from engaging in violations of law, so by inference
the lawyer must withdraw.
Difference between MR 1.16 and Cal 3-700
Sale of Law Practice. Both rules are similar.
1. The major difference is that Model Rule permits sale
of an “area of practice,” but Cal. Rule does not.
2. Cal. Rule also is much more specific on what a lawyer
must do in terms of notifying clients of the sale.
Difference between MR 1.17 and Cal 2-300
Duties to Prospective Client. No Cal. Rule counterpart.
See, however, Cal. Bar Formal Ethics Op. 2003-161, to
same effect.
NOTE: MR avoids disqualification of the
disqualified lawyer’s law firm if (i) prospective client and
current client both give informed consent, confirmed in
writing; or (ii) the disqualified lawyer is timely screened w/
notice to prospective client.
MR 1.18
Advisor. No Cal. Rule counterpart.
MR 2.1
Intermediary. Rule withdrawn in 2002.
MR 2.2
Evaluation for use by third persons. No Cal. Rule
counterpart.
MR 2.3
Lawyer as Third Party Neutral. Closest counterpart to
is Cal. Rule 1-710. No Cal. Rule counterpart to
MR 2.4
Meritorious claims and contentions. No significant
differences.
NOTE: Cal Bar Exam has tested this.
Difference between MR 3.1 and Cal 3-200
Expediting Litigation. No Cal. Rule counterpart. But see
B&P § 6128(b).
MR 3.2
Candor toward the Tribunal. No one-to-one
correspondence between MR’s and Cal Rules.
NOTE: Questions often arise on Bar Exam. Usually
looking for discussion of conflict between policies re
confidentiality under vs. duties to tribunal (lawyer
has such duties as officer of court).
Difference between MR 3.3(a)(1) and Cal 5-200, B&P 6068(d)
NOTE: The Cal Bar Exam has tested this concept
regarding citation of authority to a tribunal.
MR 3.3(a)(2) and Cal 5-200(C)(D)
Remedial measures. No on-point counterpart, but see 5-
200 and 5-220.
MR 3.3(a)(3)
No Cal. Rule counterpart, but see B&P § 6128(a) (“Every
attorney is guilty of a misdemeanor who either: (a) Is guilty
of any deceit or collusion, or consents to any deceit or
collusion, with intent to deceive the court or any party.”
MR 3.3(b)
No Cal. Rule counterpart concerning duration of L’s duty
of candor to tribunal.
MR 3.3(c)
Ex parte contacts. No direct Cal. Rule counterpart, but see
5-300(B). The Cal Bar Exam has tested this.
MR 3.3(d)
MR 3.4
Coincides 5-200, 5-220, 5-310 and 6168(b), (d)
MR 3.5
Coincides 5-300 and 5-320
Trial Publicity. Nearly identical.
NOTE: The Cal Bar Exam has tested this rule.
Difference between MR 3.6 and Cal 5-120
Lawyer as witness. Major differences are:
1. Model Rule applies in both bench and jury trials; Cal.
Rule applicable only in jury trials.
2. Cal. Rule permits L to testify as witness if client
consents; Model Rule does not have exception for client
consent (reflects concern with confusing jury as to whether
lawyer is appearing as an advocate for client or as a fact
witness).
Difference between MR 3.7 and Cal 5-210
Special Responsibilities of Prosecutors. As of 11/2/2017,
California Rule has been expanded and now more
closely approximates comprehensive Model Rule .
There is little substantive difference between the two
versions:
1. Paragraph (A) of rule clarifies what is intended
by the requirement that a prosecutor “refrain
from prosecuting” by providing a prosecutor shall “not
institute or continue to prosecute.”
2. Paragraph (B) is identical to MR .
3. Paragraph (C) concerning waiver of pretrial rights is
substantively the same but provides an exception, i.e.,
where “the tribunal has approved the appearance of the
accused in propria persona.”
4. MR raises a prosecutor’s duty to disclose
exculpatory information well beyond the Constitutional
duty required by Brady v. Maryland under which
prosecutor must disclose exculpatory evidence that is
“material” to the question of guilt; MR requires
disclosure if the evidence or information “tends to negate
the guilt of the accused or mitigates the offense.”
California has no corresponding provision.
Rule is substantively the same, but employs
the verb “tends to” to apply not only to “evidence and
information” that “negate[s] the guilt of the accused,” but
also to evidence and information that “mitigate[s] the
offense” [e.g., reduces a felony from first to second
degree] or “mitigate[s] the sentence.” This clarification
appears to be more in keeping with the designation of the
California Rules as primarily disciplinary rules. The
language of closely approximates that of ABA Code
of Professional Responsibility, DR 7-103(B).1
California retains rule , which concerns
suppression of evidence and applies to all lawyers, not
just prosecutors.
5. The Supreme Court did not approve proposed
rule which governs the issuance of subpoenas
to an accused lawyers. It was believed that current case
law adequately addresses the issue.
6. Rule is substantively similar to the concept
of MR, which imposes additional obligations on
prosecutors regarding pre-trial publicity. However, in
response to concerns expressed by prosecutors that they
do not have the authority to control what other government
agencies (e.g., the police) might state, rule is
limited to requiring prosecutors to exercise “reasonable
care to prevent persons under the supervision or direction
of the prosecutor,” (emphasis added), to address the
prosecutor’s concerns.
7. MR and (h) were added in February 2008 to
impose special duties on prosecutors to take remedial
measures when they learn that an innocent person has
been wrongly convicted. Rule and (G) are
identical to MR (g) and (h).
8.
NOTE: The Cal Bar Exam has tested these rules,
including, (d) and (f) in a single question.
Difference between MR 3.8 and Cal 5-110 and 5-220
Advocate in non-adjudicative proceeding. No California
Rule counterpart.
MR 3.9
Truthfulness in Statements to Others. No California Rule
counterpart, but see B&P §§ 6068(d) and 6128(a).
MR 4.1
Communication with represented person. There are
significant differences between the rules”
1. Model Rule prohibits communications with a
represented “person” vs. California rule, which
prohibits communications with a represented “party”
2. Cal. Rule has express exception for communications
with government officials or bodies (C)(1) in
recognition of Constitutional right to petition government.
3. Cal Rule expressly provides that “party” includes
constituent of organization: (i) who is in the “control group”
of organization, (B)(1); (ii) whose acts or omissions can be
imputed to organization, (B)(2); or (iii) whose admissions
can bind organization. Except for (iii), MR
addresses those persons in comments.
4. Cal. Rule has express exception for “second
opinions,” i.e., an independent lawyer (i.e., one who is not
involved in the matter) may communicate with a
represented party who wants a second opinion
5. Note that both rules prohibit communication with the
represented person/party even if that person initiates the
contact w/ the lawyer.
6. Note that both rules permit opponents to communicate
with one another even though they both are represented,
and their lawyers can advise them on the communication.
7. Note that both rules also permit lawyers who are
representing themselves to communicate with a
represented opponent in the matter.
NOTE: Cal Bar Exam has tested this rule several times.
Difference between MR 4.2 and Cal 2-100
Dealing with unrepresented person. No California Rule
counterpart, but see in organization context.
MR 4.3
Respect for rights of third persons. No California Rule
counterpart, but see B&P § 6068(f).
MR 4.4(a)
Inadvertent disclosure of confidential information.
1. No California Rule counterpart, but see Rico v.
Mitsubishi, 42 Cal.4th 807 (2007); State Compensation
Insurance Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644,
82 Cal.Rptr.2d 799; and McDermott Will & Emery LLP v.
Superior Court, 10 Cal.App.5th 1083, 217 Cal.Rptr.3d 47
(2017). Note that the cases require lawyer to notify the
other party’s lawyer and follow the other lawyer’s
instructions vs. . Note also that State Fund is based
upon an ABA Opinion (93-368), which MR
overruled.
2. Important point to remember is that it is not up to the
lawyer to decide whether the lawyer can use the
inadvertently disclosed information. It is up to the court
and the lawyer must get a court ruling. Remember: Not
Your Call!
NOTE: Cal Bar Exam has tested this issue.
MR 4.4(b)
Duties of Supervisory Lawyer, Subordinate Lawyer, and
Duties concerning non-lawyer assistants.
1. Model Rules are much more comprehensive in
covering the issues of supervision, i.e., they cover the
issue in three separate rules. Cal. Rules address the issue
in a single Discussion paragraph under the competence
rule.
2. In 2012, Model Rules added comment language to
clarify that the duty of supervision applies to outsourcing
of legal and related legal-support services. Compare Cal.
State Bar Ethics Op. 2004-165 (Contract Lawyers), which
indicates California would likely take the same position.
3. Cal. Rules have no provision similar to MR re
duties of subordinate lawyers. However, see Jay v.
Mahaffey, 218 Cal.App.4th 1522 (Cal.App. 2013), which
held that subordinate lawyers have an independent duty
and cannot rely on orders of a supervising lawyer when
there is an unquestionable ethical violation.
Difference between MR 5.1, 5.2, 5.3 and Cal 3-110
Fee Sharing With Non-Lawyer.
Note: Although Model Rules place the concept of
lawyer’s independence of judgment in a single rule,
MR, California places the concepts in several
rules,
1. Fee sharing w/ a non-lawyer is prohibited under both
MR’s and Cal Rules except in the enumerated
circumstances in
2. A major difference is that MR’s permit L to share
court-awarded fees w/ a non-profit organization; Cal.
Rules do not.
NOTE: Cal Bar Exam has tested this.
Difference between MR 5.4(a) and Cal 1-320(A)
The closest Model Rule counterpart to Cal Rule
is MR 7.2(b)(4) [though it is not identical].
permits L to send a gift L to compensate a non-L for
referring business after the referral was made so long as
the specific requirements are satisfied (i.e., not a quid pro
quo or expectation of same in future).
NOTE: Cal Bar Exam has tested this.
Cal 1-320(B)
The closest counterpart to Cal Rule is MR
7.2(b)(1), concerning payments for advertisements.
NOTE: Cal Bar Exam has tested this.
Cal 1-320(C)
MR and (d) are more precise and broader than Cal.
Rule , which only prohibits lawyers from being in a
partnership with a non-lawyer if the partnership engages in
the practice of law.
Difference between MR 5.4(b), (d) and Cal 1-310
The closest approximation to MR is Cal Rule 3-
310(F). Note, however, that 3-310(F) is most closely
approximated in Model Rules by MR 1.8(f).
MR 5.4(c)
UPL & MJP.
1. On unauthorized practice of law (“UPL”), California
and Model Rule are similar.
2. On multijurisdictional practice of law (“MJP”),
California has addresses the issue in the Cal. Rules of
Court.
3. Cal. has no rule counterpart to MR (services
authorized by federal or other law). However, the U.S.
S.Ct. decision in Sperry v. Florida ex rel. Florida Bar
(1963) 373 U.S. 379 [83 S.Ct. 1322] (person who
practices before PTO can have office in state in which he
or she is not licensed), would control in California
Difference between MR 5.5 and Cal 1-300, Rules of Court 9.45-9.48
Restrictions on right to practice. Both rules are similar,
though California has the Howard v. Babcock decision.
Model Rule has no equivalent of .
Difference between MR 5.6 and Cal 1-500
Public Service. With one exception, no corresponding Cal.
Rules.
1. The one exception is Cal. Rule , which is nearly
identical to MR and concerns limited legal services
programs (e.g., Law Day).
2. Note that Cal. Rule (“Legal Service Programs”)
is addressed to a different issue from MR
(“Membership in Legal Services Organizations”).
MR is concerned with a lawyer being an officer or
director of a legal services organization, e.g., the ACLU,
and the conflicts which may arise when the organization
represents persons with interests adverse to the lawyer’s
clients. Rule , on the other hand, appears to be
primarily concerned with a lawyer accepting referrals from
lawyer referral services that are operated by non-lawyers.
See rule
3. Although Cal Rules do not have a pro bono rule
similar to MR, the State Bar Board of Trustees has
adopted a resolution that is very similar. In any event, pro
bono is aspirational; there is no duty to perform pro bono
Difference between MR 6.1-6.5 and Cal 1-600
Marketing of Legal Services. Notwithstanding the ABA’s
multi-rule approach and in parts different language from
the California rules, the ultimate result is that both sets of
rules prohibit false or misleading communications.
Some differences:
1, Cal. has retention requirement ; Model Rules
do not.
2. Model Rules prohibit “real-time electronic contact” but
Cal. Rules do not; Cal. Rules prohibit only in-person or
telephonic communications. See Cal. Bar Formal Ethics
Op. 2004-166.
3. California has standards attached to rule, which
have the effect of creating rebuttable presumptions that
the rule has been violated. It is important to become
familiar with these presumptions.
NOTE: Cal Bar Exam has tested advertising.
Difference between MR 7.1-7.5 and Cal 1-400, B&P 6157
MR 8.1(a)
Coincides Cal 1-200
Duty to rectify misapprehension of bar or respond to
inquiry for information. No Cal. Rule counterpart.
MR 8.1(b)
Judicial And Legal Officials. Paragraph (a) prohibits
making false or reckless statements about a judge’s
qualifications or integrity. Closest Cal. counterpart is B&P
§ 6068(b).
MR 8.2(a)
Judicial Candidate. Identical.
MR 8.2(b) and Cal 1-700
Reporting Professional Misconduct. No Cal. Rule
counterpart.
NOTE: The Cal. Bar Exam has tested this. Model Rule
requires a lawyer to report misconduct by another lawyer
that “raises a substantial question as to that lawyer’s
honesty, trustworthiness or fitness as a lawyer.”
MR 8.3
Violate or knowingly assist another to violate the Rules of
Professional Conduct.
1. MR also prohibits attempts to violate; Cal. does
not.
Difference between MR 8.4(a) and Cal 1-120
Misconduct.
1. Most of prohibitions in MR can be found in the
B&P Code.
2. Note that Cal. still adheres to the “moral turpitude”
standard that would encompass nearly all of the provisions
in MR through (f). See B&P Code § 6106.
MR 8.4(b)-(f)
MR 8.5(a)
Coincides Cal 1-100
MR 8.5(b)
Coincides Cal 1-100
Threat to gain advantage in civil action. There is no
Model Rule that corresponds to Cal Rule
NOTE: Cal Bar Exam has tested this.
Cal 5-100
