STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON
PROFESSIONAL RESPONSIBILITY AND CONDUCT
July 20, 1999
American Bar Association
Commission on the Evaluation of the
Rules of Professional Conduct
Attention: Susan Campbell
541 North Fairbanks, 14th Floor
Chicago, IL 60611
Re: Proposed changes to Model Rule 3.3 (Revised preliminary draft, 4/26/99)
I write on behalf of the State Bar of California's Standing Committee on Professional Responsibility and Conduct (COPRAC), whose activities are funded in part by the Foundation of the State Bar of California.
We offer the following comments on the above-referenced draft.
Ex parte proceedings. Subsection (a)(3) would require an attorney, in an ex parte proceeding "to disclose to the tribunal all material facts known the lawyer . . . , whether or not the facts are adverse". We think the Commission should take a hard second look at this language. Would the lawyer in an ex parte proceeding be required to breach confidentiality? Would the lawyer be obligated to make the other (absent) side's argument? We think it would be more appropriate to forbid the attorney from making a statement that is misleading if other material facts are not disclosed. That would avoid forcing the attorney to advocate against his own client and to guess at what facts in the attorney's possession might later be considered to be material.
This comment from the State Bar of California Standing Committee on Professional Responsibility and Conduct does not constitute the position of the State Bar of California or its Board of Governors. The Board of Governors is free to submit its own comment on behalf of the State Bar of California.
Harry B. Sondheim,
cc: Board of Governors
Randall Difuntorum, Esq., COPRAC Staff Counsel