NEW RULE OF PROFESSIONAL CONDUCT PROHIBITING DISCRIMINATION, HARASSMENT AND RETALIATION Former rule 2-400: California’s new Rules of Professional Conduct, which went into effect on November 1, 2018, include rule 8.4.1, which is the revision of former rule 2-400, which prohibited discrimination, or the knowing permission of, on the basis of race, national origin, sex, sexual orientation, religion, age or disability “in the management or operation of a law practice.” That law practice included the hiring,…

COMMUNICATING WITH CLIENTS – NEW RULE OF PROFESSIONAL CONDUCT Rule of Professional Conduct 1.4 (effective November 1, 2018), which replaces former rule 3-500, maintains the requirement that lawyers must keep clients reasonably informed about significant developments and promptly comply with reasonable requests for both information and significant documents. The new rule adds that the lawyer shall promptly inform the client of any decision or circumstance with respect to which disclosure or the client’s informed consent…

LAWYERS MUST DISCLOSE ADVERSE AUTHORITY TO THE TRIBUNAL On November 1, 2018, new Rules of Professional Conduct become effective for all California lawyers. This Mediation Message analyzes rule 3.3, Candor Toward the Tribunal (i.e., a court, arbitrator, administrative law judge, administrative body acting in an adjudicative capacity and special master; note, “tribunal” does not include mediators). Rule 3.3 replaces rule 5-200. Parts of the new rule in effect follow rule 5-200: subd. (a)(1) prohibits making…

MICHAEL MARCUS’S MEDIATION MESSAGE NO. 72 MEDIATORS ARE NOT POTTED PLANTS Mediation confidentiality, which allows attorney incompetence and insolence to go unchecked until the Legislature says otherwise (see Cassel v. Superior Court (2011) 51 Cal.4th 113), can create occasional problems for mediators. Although we cannot report attorney misconduct to the court (see Foxgate Homeowners’ Association v. Bramalea California, Inc. (2001) 26 Cal.4th 1) and have no power to ensure the substantive fairness of an agreement…

PROPOSED ETHICAL RULE CONCERNING MEDIATORS AND ARBITRATORS The State Bar’s Special Commission for the Revision of the Rules of Professional Conduct (RRC), which is rewriting California’s Rules of Professional Conduct, has out for public comment eleven proposed ethical rules, one of which (rule 1.12) concerns mediators, arbitrators and former judges. The comment period for these rules ends on November 13, 2009. California does not have an existing ethical rule for the conduct of mediators and…