Amended in Assembly May 12, 2014

Amended in Assembly March 20, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 1515

Introduced by Assembly Member Gonzalez

January 15, 2014

An act to amend Section 6068 of the Business and Professions Code, relating to attorneys.

LEGISLATIVE COUNSEL’S DIGEST

AB 1515, as amended, Gonzalez. Attorneys: duties.

Existing law, the State Bar Act, provides for the regulation and licensure of attorneys by the State Bar of California. Existing law imposes various duties on an attorney, including the duty to maintain the confidences and preserve the secrets of his or her client at every peril to himself or herself. Existing law authorizes the Board of Trustees of the State Bar, with the approval of the Supreme Court, to formulate and enforce rules of professional conduct for all members of the State Bar. Existing law requires the State Bar, if a client files a complaint alleging that his or her trust fund is being mishandled, to investigate and, if the State Bar determines that circumstances warrant, to require an audit.

This bill would additionally impose on an attorney the duty to deposit begin delete fees and end delete begin insert into a client trust account funds received in advance from, or for, the client for fees, costs, or end insert expenses begin delete that have been paid in advance for legal services into a client trust account, end delete begin insert for legal services, end insert which are to be withdrawn by the attorney only as fees are earned or begin insert costs or end insert expenses begin insert are end insert incurred. begin insert The bill would authorize specified legal services to be provided in stages, and would authorize an attorney to withdraw fees when he or she has performed and completed a specified stage or stages, if the agreement with the client specifies each stage and sets the amount of the advance fee for each stage. The bill would provide that any fee that is paid in advance as the set amount of the fee for specified legal services, whether paid as a “fixed” fee, a “flat” fee, or under any other label, is earned only when the attorney has performed and completed the legal services agreed to be provided in exchange for that fee. end insert The bill would require the State Bar to adopt for approval by the Supreme Court any necessary amendments to its rules of professional conduct to conform with this provision.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 6068 of the Business and Professions
Code is amended to read:

6068.  

It is the duty of an attorney to do all of the following:

(a) To support the Constitution and laws of the United States
and of this state.

(b) To maintain the respect due to the courts of justice and
judicial officers.

(c) To counsel or maintain those actions, proceedings, or
defenses only as appear to him or her legal or just, except the
defense of a person charged with a public offense.

(d) To employ, for the purpose of maintaining the causes
confided to him or her those means only as are consistent with
truth, and never to seek to mislead the judge or any judicial officer
by an artifice or false statement of fact or law.

(e) (1) To maintain inviolate the confidence, and at every peril
to himself or herself to preserve the secrets, of his or her client.

(2) Notwithstanding paragraph (1), an attorney may, but is not
required to, reveal confidential information relating to the
representation of a client to the extent that the attorney reasonably
believes the disclosure is necessary to prevent a criminal act that
the attorney reasonably believes is likely to result in death of, or
substantial bodily harm to, an individual.

(f) To advance no fact prejudicial to the honor or reputation of
a party or witness, unless required by the justice of the cause with
which he or she is charged.

(g) Not to encourage either the commencement or the
continuance of an action or proceeding from any corrupt motive
of passion or interest.

(h) Never to reject, for any consideration personal to himself
or herself, the cause of the defenseless or the oppressed.

(i) To cooperate and participate in any disciplinary investigation
or other regulatory or disciplinary proceeding pending against
himself or herself. However, this subdivision shall not be construed
to deprive an attorney of any privilege guaranteed by the Fifth
Amendment to the Constitution of the United States, or any other
constitutional or statutory privileges. This subdivision shall not
be construed to require an attorney to cooperate with a request that
requires him or her to waive any constitutional or statutory
privilege or to comply with a request for information or other
matters within an unreasonable period of time in light of the time
constraints of the attorney’s practice. Any exercise by an attorney
of any constitutional or statutory privilege shall not be used against
the attorney in a regulatory or disciplinary proceeding against him
or her.

(j) To comply with the requirements of Section 6002.1.

(k) To comply with all conditions attached to any disciplinary
probation, including a probation imposed with the concurrence of
the attorney.

(l) To keep all agreements made in lieu of disciplinary
prosecution with the agency charged with attorney discipline.

(m) To respond promptly to reasonable status inquiries of clients
and to keep clients reasonably informed of significant
developments in matters with regard to which the attorney has
agreed to provide legal services.

(n) To provide copies to the client of certain documents under
time limits and as prescribed in a rule of professional conduct,
which the board shall adopt.

(o) To report to the agency charged with attorney discipline, in
writing, within 30 days of the time the attorney has knowledge of
any of the following:

(1) The filing of three or more lawsuits in a 12-month period
against the attorney for malpractice or other wrongful conduct
committed in a professional capacity.

(2) The entry of judgment against the attorney in a civil action
for fraud, misrepresentation, breach of fiduciary duty, or gross
negligence committed in a professional capacity.

(3) The imposition of judicial sanctions against the attorney,
except for sanctions for failure to make discovery or monetary
sanctions of less than one thousand dollars ($1,000).

(4) The bringing of an indictment or information charging a
felony against the attorney.

(5) The conviction of the attorney, including any verdict of
guilty, or plea of guilty or no contest, of a felony, or a misdemeanor
committed in the course of the practice of law, or in a manner in
which a client of the attorney was the victim, or a necessary
element of which, as determined by the statutory or common law
definition of the misdemeanor, involves improper conduct of an
attorney, including dishonesty or other moral turpitude, or an
attempt or a conspiracy or solicitation of another to commit a
felony or a misdemeanor of that type.

(6) The imposition of discipline against the attorney by a
professional or occupational disciplinary agency or licensing board,
whether in California or elsewhere.

(7) Reversal of judgment in a proceeding based in whole or in
part upon misconduct, grossly incompetent representation, or
willful misrepresentation by an attorney.

(8) As used in this subdivision, “against the attorney” includes
claims and proceedings against any firm of attorneys for the
practice of law in which the attorney was a partner at the time of
the conduct complained of and any law corporation in which the
attorney was a shareholder at the time of the conduct complained
of unless the matter has to the attorney’s knowledge already been
reported by the law firm or corporation.

(9) The State Bar may develop a prescribed form for the making
of reports required by this section, usage of which it may require
by rule or regulation.

(10) This subdivision is only intended to provide that the failure
to report as required herein may serve as a basis of discipline.

(p) To deposit begin delete fees and end delete begin insert into a client trust account funds received
in advance from, or for, the client for fees, costs, or end insert expenses begin delete that
have been paid in advance end delete for legal begin delete services into a client trust
account, end delete begin insert services, end insert which shall be withdrawn by the attorney only
as fees are earned or begin insert cost or end insert expenses begin insert are end insert incurred. begin delete The end delete

begin insert

(1) Specified legal services may be provided in stages and fees
may be withdrawn when the attorney has performed and completed
a specified stage or stages, if the agreement with the client specifies
each stage and sets the amount of the advance fee for each stage.
For purposes of this subdivision, any fee that is paid in advance
as the set amount of the fee for specified legal services, whether
paid as a “fixed” fee, a “flat” fee, or under any other label, is
earned only when the attorney has performed and completed the
legal services agreed to be provided in exchange for that fee.

end insert

begin insert (2) end insert begin insert   end insert begin insert The end insert State Bar shall adopt for approval by the Supreme Court
any necessary amendments to its rules of professional conduct to
conform with this subdivision.