On November 1, 2018, significant changes to the rules governing the behavior of lawyers in California took effect.  These changes to the Rules of Professional Conduct bring California more closely in line with the rest of the country by adopting provisions of the American Bar Association Model Rules, and reflect the nation’s changing attitudes toward professional relationships and discrimination in the workplace in the wake of the #MeToo movement.

Among the changes is Rule 8.4.1, which mirrors American Bar Association Model Rule 8.4(g) and replaces old California Rule 2-400(C).  The new rule prohibits discrimination, harassment, and retaliation by attorneys, not only in the practice of law but also in related functions such as bar association meetings.  This expands the applicability of the prior rule, which only pertained to discrimination in the management or operations of law firms.  All California lawyers now have the responsibility to advocate for corrective action when they become aware of behavior which discriminates on the basis of the following protected characteristics:

“[R]ace, 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[.]”

Failure to advocate for corrective action, or “knowingly permitting” discrimination, is also a violation of the new rule.

In addition, Rule 8.4.1 gives the California Bar Association new powers to discipline attorneys accused of discriminatory behavior.  Under the old Rule 2-400(C), the California Bar Association was prevented from initiating discipline proceedings until after a final civil determination of wrongful discrimination.  That requirement was removed by 8.4.1, meaning that the Bar Association now has the ability to investigate and prosecute discrimination on its own.

The new ethics rules also include Rule 1.8.10, which expands the prohibition on attorneys having sexual relationships with clients.  Under the old Rule 3-120, attorneys were permitted to have sexual relationships with their clients as long as the relationship was not coercive, or quid pro quo for legal representation.  Under the new rule, sexual relationships with clients are forbidden unless a consensual relationship existed prior to the beginning of the lawyer-client relationship.