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Happy to pass along this announcement from the State Bar of California Committee on Professional Responsibility and Conduct (COPRAC) Call for Comments on "Advisory Regarding Artificial Intelligence (AI) Hallucinations":
COPRAC Advisory Regarding Artificial Intelligence (AI) Hallucinations
Due to the increased usage of artificial intelligence (AI) in the legal profession, the Committee on Professional Responsibility and Conduct (COPRAC) continues to provide guidance on relevant ethical and practical considerations that arise from the use of these technologies. Generative AI tools (such as ChatGPT and Perplexity) are computer applications that can create text, images, or other content in response to user prompts. In the legal context, they may be used for tasks such as brainstorming, research, drafting, or summarizing information.
While these tools can be helpful in streamlining some aspects of legal work, attorneys must use them in a manner consistent with their duty of competence (rule 1.1), diligence (rule 1.3), and responsibilities as managerial and supervisory lawyers (rule 5.1). Competent use of such technology requires understanding its limitations, including the risk of fake or “hallucinated” content, outdated or incomplete legal authorities, and the inadvertent disclosure of confidential client information through prompts.
Courts have sanctioned attorneys for submitting AI-generated filings containing false or fabricated authorities, and an attorney’s lack of awareness of the risk of “hallucinated” content does not relieve the attorney of responsibility for ensuring the accuracy and integrity of any work product submitted. Attorneys must independently verify any AI-assisted work product before relying on it in any context. Diligent representation requires that attorneys not delegate their professional judgment to AI, but instead review, edit, and take responsibility for the substance and timing of all filings, communications, and advice.
Attorneys with managerial or supervisory authority must also implement reasonable policies, training, and oversight to ensure that any use of generative AI by attorneys does not compromise client confidentiality or replace appropriate legal analysis, supervision, or quality control. Ultimately, licensees should evaluate these tools thoughtfully, balancing their potential benefits while understanding the potential pitfalls. COPRAC is actively working on revisions and updates to its practical guidanceregarding AI. The updated practical guidance will be presented at the May 14–15, 2026, Board of Trustees meeting for approval. In addition, proposed amendments to the Rules of Professional Conduct are currently out for public comment. Licensees and members of the public are encouraged to submit written comments on the proposed amendments.
The proposed amendments to the Rules of Professional Conduct and the Explanation and call for comments follow. The proposed changes including redlined version may be accessed here.
Rule 1.1 would add new Comment [2]
[2] When using technology, including artificial intelligence, a lawyer must independently review, verify, and exercise professional judgment regarding any output generated by the technology that is used in connection with representing a client.
Rule 1.4 would add new Comment [5]
[5] When a lawyer’s use of technology, including artificial intelligence, presents a significant
risk or materially affects the scope, cost, manner, or decision-making process of representation, the lawyer must communicate sufficient information regarding the use of technology to permit the client to make informed decisions regarding the representation. A lawyer must evaluate their communication obligations throughout the representation based on the facts and circumstances, including the novelty of the technology, risks associated with the use of the technology, scope of the representation, and sophistication of the client.
Rule 1.6 adds new Comment 2:
[2] For purposes of this rule, “reveal” includes exposing confidential information toRule 3.3 adds new Comment 3:
technological systems, including artificial intelligence tools, where such exposure creates a
material risk that the information may be accessed, retained, or used, whether by the
technological system or another user of that technological system, in a manner inconsistent
with the lawyer’s duty of confidentiality.
[3] A lawyer’s duty of candor towards the tribunal includes the obligation to verify the
accuracy and existence of cited authorities, including ensuring no cited authority is fabricated,
misstated, or taken out of context, before submission to a tribunal, including any cited
authorities generated or assisted by artificial intelligence or other technological tools.
Rule 5.1 adds a clause at the end of Comment 1:
[1] Paragraph (a) requires lawyers with managerial authority within a law firm* to make
reasonable* efforts to establish internal policies and procedures designed, for example, to
detect and resolve conflicts of interest, identify dates by which actions must be taken in
pending matters, account for client funds and property, and ensure that inexperienced lawyers
are properly supervised, and govern the use of artificial intelligence, in accordance with the
Rules of Professional Conduct.
Rule 5.3 adds language to the Comment
Lawyers often utilize nonlawyer personnel, including secretaries, investigators, law student
interns, and paraprofessionals. Such assistants, whether employees or independent
contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning all ethical aspects of their employment, including the use of technology in the provision of legal services, such as artificial intelligence. The measures employed in instructing and supervising nonlawyers should take account of the fact that they might not have legal training.
These go to duty of care, duty of candor, training, supervisory expectations, and client involvement in the decision to use (and price) AI tech assistance. Duties of candor extent to client and court, but not to opposing counsel. They do not speak to general expectations among lawyers and indeed suggest that the Rules of Professional Responsibility ought to follow rather than lead as expectations and common practices evolve among the bench and bar. This appears to be the case especially with respect to inverting key terms with meaning.
These are fairly conservative additions. Comments must be submitted by 45 May 2026. Those interested in submitting comments should use the online Public Comment Form.
The State Bar seeks public input on proposed amendments to the Rules of Professional Conduct addressing the use of artificial intelligence.
Deadline: May 4, 2026, 11:59 p.m. (45 days)
Direct comments to
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
Background
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with addressing matters involving legal ethics to help California lawyers understand their ethical duties. The committee’s work includes studying and recommending changes to the Rules of Professional Conduct. (See State Bar Board Book, Section 4.12 & Appen. B.)
On August 22, 2025, the State Bar of California received a letter from the California Supreme Court directing the State Bar to consider incorporating principals from its 2023 Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law into the California Rules of Professional Conduct. The Court also directed the State Bar to consider any additional guidance in light of agentic artificial intelligence tools, which can enable systems to autonomously perform tasks or workflows without human prompting. In response, COPRAC has developed proposed amendments to the Rules of Professional Conduct to address the use of artificial intelligence in legal practice. COPRAC also proposed changes to the above-mentioned Practical Guidance and those proposed changes will be going before the Board of Trustees at its May 2026 meeting.
Generative artificial intelligence tools (such as ChatGPT, Claude, and Perplexity) are computer applications that can create text, images, or other content in response to user prompts. In the legal context, they may be used for tasks such as brainstorming, research, drafting, or summarizing information. While these tools can be helpful in streamlining some aspects of legal work, attorneys must use them in a manner consistent with their duties under the Rules of Professional Conduct. While the current rules already provide guidance and dictate how to use emerging technologies, including artificial intelligence (AI), due to the increasing proliferation of AI, as well as continued examples of fake or “hallucinated” content, including outdated, incomplete, or nonexistent legal authorities appearing in documents filed with the court, COPRAC proposed clarifying amendments to the Rules of Professional Conduct.
Discussion/proposal
The proposed amendments address attorneys’ ethical obligations under the Rules of Professional Conduct, including Competence (rule 1.1), Communication with Clients (rule 1.4), Confidential Information of a Client (rule 1.6), Candor Toward the Tribunal (rule 3.3), Responsibilities of Managerial and Supervisory Lawyers (rule 5.1), and Responsibilities Regarding Nonlawyer Assistants (rule 5.3).
Amendments to rule 1.1 would:
- Include artificial intelligence as an example of relevant technology in current Comment [1].
- Add a new Comment [2] emphasizing that, when using technology, including artificial intelligence, a lawyer must independently review, verify, and exercise professional judgment regarding any output generated by the technology.
Amendments to rule 1.4 would:
- Add new Comment [5] clarifying that when a lawyer’s use of technology, including artificial intelligence, presents a significant risk or materially affects the scope, cost, manner, or decision-making process of representation, the lawyer must communicate sufficient information regarding the use of technology to permit the client to make informed decisions regarding the representation. The comment also clarifies that this duty exists through the life of the representation based on the facts and circumstances, including the novelty of the technology, risks associated with the use of the technology, scope of representation, and sophistication of the client.
Amendments to 1.6 would:
- Add a new Comment [2] defining “reveal” to include exposing confidential information to technological systems, including AI tools where such exposure creates a material risk that the information may be used in a manner inconsistent with the lawyer’s duty of confidentiality.
Amendment to 3.3 would:
- Add new Comment [3] clarifying that a lawyer’s duty of candor toward the tribunal includes the obligation to verify the accuracy and existence of cited authorities, including ensuring no cited authority is fabricated, misstated, or taken out of context, before submission to a tribunal, including any cited authorities generated or assisted by artificial intelligence or other technological tools.
Amendments to 5.1 would:
- Modify existing Comment [1] to clarify that managerial lawyers must make reasonable efforts to establish internal policies and procedures governing the use of AI, in accordance with the Rules of Professional Conduct.
Amendments to 5.3 would:
- Modify the existing comment to clarify that a lawyer must give nonlawyer assistants appropriate instruction and supervision concerning all ethical aspects of their employment, including the use of technology in the provision of legal services, such as artificial intelligence.
At its March 13, 2026, meeting, COPRAC approved the proposed amendments to 1.1, 1.4, 1.6, 3.3, 5.1, and 5.3 for a 45-day public comment period.
Any fiscal/personnel impact
None
Background materials
- Proposed Amended Rules of Professional Conduct 1.1, 1.4, 1.6, 3.3, 5.1, and 5.3 (clean and redline)
- Letter from the California Supreme Court, dated August 22, 2025
Source
State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC)
Deadline
May 4, 2026, 11:59 p.m.
Direct comments to
Comments should be submitted using the online Public Comment Form. The online form allows you to input your comments directly and can also be used to upload your comment letter and/or other attachments.
For further questions, please email communications@calbar.ca.gov.
* * *
Rule 1.1 Competence
(Proposed Rule)
(a) A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to
perform legal services with competence.
(b) For purposes of this rule, “competence” in any legal service shall mean to apply the (i)
learning and skill, and (ii) mental, emotional, and physical ability reasonably* necessary
for the performance of such service.
(c) If a lawyer does not have sufficient learning and skill when the legal services are
undertaken, the lawyer nonetheless may provide competent representation by (i)
associating with or, where appropriate, professionally consulting another lawyer whom
the lawyer reasonably believes* to be competent, (ii) acquiring sufficient learning and
skill before performance is required, or (iii) referring the matter to another lawyer
whom the lawyer reasonably believes* to be competent.
(d) In an emergency a lawyer may give advice or assistance in a matter in which the lawyer
does not have the skill ordinarily required if referral to, or association or consultation
with, another lawyer would be impractical. Assistance in an emergency must be limited
to that reasonably* necessary in the circumstances.
Comment
[1] The duties set forth in this rule include the duty to keep abreast of the changes in the
law and its practice, including the benefits and risks associated with relevant technology,
including artificial intelligence.
[2] When using technology, including artificial intelligence, a lawyer must independently
review, verify, and exercise professional judgment regarding any output generated by the
technology that is used in connection with representing a client.
[3] This rule addresses only a lawyer’s responsibility for his or her own professional
competence. See rules 5.1 and 5.3 with respect to a lawyer’s disciplinary responsibility for
supervising subordinate lawyers and nonlawyers.
[4] See rule 1.3 with respect to a lawyer’s duty to act with reasonable* diligence.
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Rule 1.4 Communication with Clients
(Proposed Rule)
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with respect to which
disclosure or the client’s informed consent* is required by these rules or the
State Bar Act;
(2) reasonably* consult with the client about the means by which to accomplish the
client’s objectives in the representation;
(3) keep the client reasonably* informed about significant developments relating to
the representation, including promptly complying with reasonable* requests for
information and copies of significant documents when necessary to keep the
client so informed; and
(4) advise the client about any relevant limitation on the lawyer’s conduct when the
lawyer knows* that the client expects assistance not permitted by the Rules of
Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably* necessary to permit the client
to make informed decisions regarding the representation.
(c) A lawyer may delay transmission of information to a client if the lawyer reasonably
believes* that the client would be likely to react in a way that may cause imminent harm
to the client or others.
(d) A lawyer’s obligation under this rule to provide information and documents is subject to
any applicable protective order, non-disclosure agreement, or limitation under statutory
or decisional law.
Comment
[1] A lawyer will not be subject to discipline under paragraph (a)(3) of this rule for failing to
communicate insignificant or irrelevant information. (See Bus. & Prof. Code, § 6068, subd. (m).)
Whether a particular development is significant will generally depend on the surrounding facts
and circumstances. For example, a lawyer’s receipt of funds on behalf of a client requires
communication with the client pursuant to rule 1.15, paragraphs (d)(1) and (d)(4) and ordinarily
is also a significant development requiring communication with the client pursuant to this rule.
[2] A lawyer may comply with paragraph (a)(3) by providing to the client copies of
significant documents by electronic or other means. This rule does not prohibit a lawyer from
seeking recovery of the lawyer’s expense in any subsequent legal proceeding.
[3] Paragraph (c) applies during a representation and does not alter the obligations
applicable at termination of a representation. (See rule 1.16(e)(1).)
[4] This rule is not intended to create, augment, diminish, or eliminate any application of
the work product rule. The obligation of the lawyer to provide work product to the client shall
be governed by relevant statutory and decisional law.
[5] When a lawyer’s use of technology, including artificial intelligence, presents a significant
risk or materially affects the scope, cost, manner, or decision-making process of representation,
the lawyer must communicate sufficient information regarding the use of technology to permit
the client to make informed decisions regarding the representation. A lawyer must evaluate
their communication obligations throughout the representation based on the facts and
circumstances, including the novelty of the technology, risks associated with the use of the
technology, scope of the representation, and sophistication of the client.
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Rule 1.6 Confidential Information of a Client
(Proposed Rule)
(a) A lawyer shall not reveal information protected from disclosure by Business and
Professions Code section 6068, subdivision (e)(1) unless the client gives informed
consent,* or the disclosure is permitted by paragraph (b) of this rule.
(b) A lawyer may, but is not required to, reveal information protected by Business and
Professions Code section 6068, subdivision (e)(1) to the extent that the lawyer
reasonably believes* the disclosure is necessary to prevent a criminal act that the
lawyer reasonably believes* is likely to result in death of, or substantial* bodily harm to,
an individual, as provided in paragraph (c).
(c) Before revealing information protected by Business and Professions Code section 6068,
subdivision (e)(1) to prevent a criminal act as provided in paragraph (b), a lawyer shall, if
reasonable* under the circumstances:
(1) make a good faith effort to persuade the client: (i) not to commit or to continue
the criminal act; or (ii) to pursue a course of conduct that will prevent the
threatened death or substantial* bodily harm; or do both (i) and (ii); and
(2) inform the client, at an appropriate time, of the lawyer’s ability or decision to
reveal information protected by Business and Professions Code section 6068,
subdivision (e)(1) as provided in paragraph (b).
(d) In revealing information protected by Business and Professions Code section 6068,
subdivision (e)(1) as provided in paragraph (b), the lawyer’s disclosure must be no more
than is necessary to prevent the criminal act, given the information known* to the
lawyer at the time of the disclosure.
(e) A lawyer who does not reveal information permitted by paragraph (b) does not violate
this rule.
Comment
Duty of confidentiality
[1] Paragraph (a) relates to a lawyer’s obligations under Business and Professions Code
section 6068, subdivision (e)(1), which provides it is a duty of a lawyer: “To maintain inviolate
the confidence, and at every peril to himself or herself to preserve the secrets, of his or her
client.” A lawyer’s duty to preserve the confidentiality of client information involves public
policies of paramount importance. (In Re Jordan (1974) 12 Cal.3d 575, 580 [116 Cal.Rptr. 371].)
Preserving the confidentiality of client information contributes to the trust that is the hallmark
of the lawyer-client relationship. The client is thereby encouraged to seek legal assistance and
to communicate fully and frankly with the lawyer even as to embarrassing or detrimental
subjects. The lawyer needs this information to represent the client effectively and, if necessary,
to advise the client to refrain from wrongful conduct. Almost without exception, clients come to
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lawyers in order to determine their rights and what is, in the complex of laws and regulations,
deemed to be legal and correct. Based upon experience, lawyers know* that almost all clients
follow the advice given, and the law is upheld. Paragraph (a) thus recognizes a fundamental
principle in the lawyer-client relationship, that, in the absence of the client’s informed
consent,* a lawyer must not reveal information protected by Business and Professions Code
section 6068, subdivision (e)(1). (See, e.g., Commercial Standard Title Co. v. Superior Court
(1979) 92 Cal.App.3d 934, 945 [155 Cal.Rptr.393].)
[2] For purposes of this rule, “reveal” includes exposing confidential information to
technological systems, including artificial intelligence tools, where such exposure creates a
material risk that the information may be accessed, retained, or used, whether by the
technological system or another user of that technological system, in a manner inconsistent
with the lawyer’s duty of confidentiality.
Lawyer-client confidentiality encompasses the lawyer-client privilege, the work-product doctrine
and ethical standards of confidentiality
[3] The principle of lawyer-client confidentiality applies to information a lawyer acquires by
virtue of the representation, whatever its source, and encompasses matters communicated in
confidence by the client, and therefore protected by the lawyer-client privilege, matters
protected by the work product doctrine, and matters protected under ethical standards of
confidentiality, all as established in law, rule and policy. (See In the Matter of Johnson (Rev.
Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179; Goldstein v. Lees (1975) 46 Cal.App.3d 614, 621 [120
Cal.Rptr. 253].) The lawyer-client privilege and work-product doctrine apply in judicial and other
proceedings in which a lawyer may be called as a witness or be otherwise compelled to produce
evidence concerning a client. A lawyer’s ethical duty of confidentiality is not so limited in its
scope of protection for the lawyer-client relationship of trust and prevents a lawyer from
revealing the client’s information even when not subjected to such compulsion. Thus, a lawyer
may not reveal such information except with the informed consent* of the client or as
authorized or required by the State Bar Act, these rules, or other law.
Narrow exception to duty of confidentiality under this rule
[4] Notwithstanding the important public policies promoted by lawyers adhering to the
core duty of confidentiality, the overriding value of life permits disclosures otherwise
prohibited by Business and Professions Code section 6068, subdivision (e)(1). Paragraph (b) is
based on Business and Professions Code section 6068, subdivision (e)(2), which narrowly
permits a lawyer to disclose information protected by Business and Professions Code section
6068, subdivision (e)(1) even without client consent. Evidence Code section 956.5, which
relates to the evidentiary lawyer-client privilege, sets forth a similar express exception.
Although a lawyer is not permitted to reveal information protected by section 6068, subdivision
(e)(1) concerning a client’s past, completed criminal acts, the policy favoring the preservation of
human life that underlies this exception to the duty of confidentiality and the evidentiary
privilege permits disclosure to prevent a future or ongoing criminal act.
4
Lawyer not subject to discipline for revealing information protected by Business and Professions
Code section 6068, subdivision (e)(1) as permitted under this rule
[5] Paragraph (b) reflects a balancing between the interests of preserving client
confidentiality and of preventing a criminal act that a lawyer reasonably believes* is likely to
result in death or substantial* bodily harm to an individual. A lawyer who reveals information
protected by Business and Professions Code section 6068, subdivision (e)(1) as permitted under
this rule is not subject to discipline.
No duty to reveal information protected by Business and Professions Code section 6068,
subdivision (e)(1)
[6] Neither Business and Professions Code section 6068, subdivision (e)(2) nor paragraph
(b) imposes an affirmative obligation on a lawyer to reveal information protected by Business
and Professions Code section 6068, subdivision (e)(1) in order to prevent harm. A lawyer may
decide not to reveal such information. Whether a lawyer chooses to reveal information
protected by section 6068, subdivision (e)(1) as permitted under this rule is a matter for the
individual lawyer to decide, based on all the facts and circumstances, such as those discussed in
Comment [6] of this rule.
Whether to reveal information protected by Business and Professions Code section 6068,
subdivision (e) as permitted under paragraph (b)
[7] Disclosure permitted under paragraph (b) is ordinarily a last resort, when no other
available action is reasonably* likely to prevent the criminal act. Prior to revealing information
protected by Business and Professions Code section 6068, subdivision (e)(1) as permitted by
paragraph (b), the lawyer must, if reasonable* under the circumstances, make a good faith
effort to persuade the client to take steps to avoid the criminal act or threatened harm. Among
the factors to be considered in determining whether to disclose information protected by
section 6068, subdivision (e)(1) are the following:
(1) the amount of time that the lawyer has to make a decision about disclosure;
(2) whether the client or a third-party has made similar threats before and whether
they have ever acted or attempted to act upon them;
(3) whether the lawyer believes* the lawyer’s efforts to persuade the client or a
third person* not to engage in the criminal conduct have or have not been
successful;
(4) the extent of adverse effect to the client’s rights under the Fifth, Sixth and
Fourteenth Amendments of the United States Constitution and analogous rights
and privacy rights under Article I of the Constitution of the State of California
that may result from disclosure contemplated by the lawyer;
(5) the extent of other adverse effects to the client that may result from disclosure
contemplated by the lawyer; and
5
(6) the nature and extent of information that must be disclosed to prevent the
criminal act or threatened harm.
A lawyer may also consider whether the prospective harm to the victim or victims is imminent
in deciding whether to disclose the information protected by section 6068, subdivision (e)(1).
However, the imminence of the harm is not a prerequisite to disclosure and a lawyer may
disclose the information protected by section 6068, subdivision (e)(1) without waiting until
immediately before the harm is likely to occur.
Whether to counsel client or third person* not to commit a criminal act reasonably* likely to
result in death or substantial* bodily harm
[8] Paragraph (c)(1) provides that before a lawyer may reveal information protected by
Business and Professions Code section 6068, subdivision (e)(1), the lawyer must, if reasonable*
under the circumstances, make a good faith effort to persuade the client not to commit or to
continue the criminal act, or to persuade the client to otherwise pursue a course of conduct
that will prevent the threatened death or substantial* bodily harm, including persuading the
client to take action to prevent a third person* from committing or continuing a criminal act. If
necessary, the client may be persuaded to do both. The interests protected by such counseling
are the client’s interests in limiting disclosure of information protected by section 6068,
subdivision (e) and in taking responsible action to deal with situations attributable to the client.
If a client, whether in response to the lawyer’s counseling or otherwise, takes corrective
action—such as by ceasing the client’s own criminal act or by dissuading a third person* from
committing or continuing a criminal act before harm is caused—the option for permissive
disclosure by the lawyer would cease because the threat posed by the criminal act would no
longer be present. When the actor is a nonclient or when the act is deliberate or malicious, the
lawyer who contemplates making adverse disclosure of protected information may reasonably*
conclude that the compelling interests of the lawyer or others in their own personal safety
preclude personal contact with the actor. Before counseling an actor who is a nonclient, the
lawyer should, if reasonable* under the circumstances, first advise the client of the lawyer’s
intended course of action. If a client or another person* has already acted but the intended
harm has not yet occurred, the lawyer should consider, if reasonable* under the circumstances,
efforts to persuade the client or third person* to warn the victim or consider other appropriate
action to prevent the harm. Even when the lawyer has concluded that paragraph (b) does not
permit the lawyer to reveal information protected by section 6068, subdivision (e)(1), the
lawyer nevertheless is permitted to counsel the client as to why it may be in the client’s best
interest to consent to the attorney’s disclosure of that information.
Disclosure of information protected by Business and Professions Code section 6068, subdivision
(e)(1) must be no more than is reasonably* necessary to prevent the criminal act
[9] Paragraph (d) requires that disclosure of information protected by Business and
Professions Code section 6068, subdivision (e) as permitted by paragraph (b), when made, must
be no more extensive than is necessary to prevent the criminal act. Disclosure should allow
access to the information to only those persons* who the lawyer reasonably believes* can act
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to prevent the harm. Under some circumstances, a lawyer may determine that the best course
to pursue is to make an anonymous disclosure to the potential victim or relevant law-
enforcement authorities. What particular measures are reasonable* depends on the
circumstances known* to the lawyer. Relevant circumstances include the time available,
whether the victim might be unaware of the threat, the lawyer’s prior course of dealings with
the client, and the extent of the adverse effect on the client that may result from the disclosure
contemplated by the lawyer.
Informing client pursuant to paragraph (c)(2) of lawyer’s ability or decision to reveal information
protected by Business and Professions Code section 6068, subdivision (e)(1)
[10] A lawyer is required to keep a client reasonably* informed about significant
developments regarding the representation. (See rule 1.4; Bus. & Prof. Code, § 6068, subd.
(m).) Paragraph (c)(2), however, recognizes that under certain circumstances, informing a client
of the lawyer’s ability or decision to reveal information protected by section 6068, subdivision
(e)(1) as permitted in paragraph (b) would likely increase the risk of death or substantial* bodily
harm, not only to the originally-intended victims of the criminal act, but also to the client or
members of the client’s family, or to the lawyer or the lawyer’s family or associates. Therefore,
paragraph (c)(2) requires a lawyer to inform the client of the lawyer’s ability or decision to
reveal information protected by section 6068, subdivision (e)(1) as permitted in paragraph (b)
only if it is reasonable* to do so under the circumstances. Paragraph (c)(2) further recognizes
that the appropriate time for the lawyer to inform the client may vary depending upon the
circumstances. (See Comment [10] of this rule.) Among the factors to be considered in
determining an appropriate time, if any, to inform a client are:
(1) whether the client is an experienced user of legal services;
(2) the frequency of the lawyer’s contact with the client;
(3) the nature and length of the professional relationship with the client;
(4) whether the lawyer and client have discussed the lawyer’s duty of confidentiality
or any exceptions to that duty;
(5) the likelihood that the client’s matter will involve information within paragraph
(b);
(6) the lawyer’s belief,* if applicable, that so informing the client is likely to increase
the likelihood that a criminal act likely to result in the death of, or substantial*
bodily harm to, an individual; and
(7) the lawyer’s belief,* if applicable, that good faith efforts to persuade a client not
to act on a threat have failed.
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Avoiding a chilling effect on the lawyer-client relationship
[11] The foregoing flexible approach to the lawyer’s informing a client of his or her ability or
decision to reveal information protected by Business and Professions Code section 6068,
subdivision (e)(1) recognizes the concern that informing a client about limits on confidentiality
may have a chilling effect on client communication. (See Comment [1].) To avoid that chilling
effect, one lawyer may choose to inform the client of the lawyer’s ability to reveal information
protected by section 6068, subdivision (e)(1) as early as the outset of the representation, while
another lawyer may choose to inform a client only at a point when that client has imparted
information that comes within paragraph (b), or even choose not to inform a client until such
time as the lawyer attempts to counsel the client as contemplated in Comment [7]. In each
situation, the lawyer will have satisfied the lawyer’s obligation under paragraph (c)(2), and will
not be subject to discipline.
Informing client that disclosure has been made; termination of the lawyer-client relationship
[12] When a lawyer has revealed information protected by Business and Professions Code
section 6068, subdivision (e) as permitted in paragraph (b), in all but extraordinary cases the
relationship between lawyer and client that is based on trust and confidence will have
deteriorated so as to make the lawyer’s representation of the client impossible. Therefore,
when the relationship has deteriorated because of the lawyer’s disclosure, the lawyer is
required to seek to withdraw from the representation, unless the client has given informed
consent* to the lawyer’s continued representation. The lawyer normally must inform the client
of the fact of the lawyer’s disclosure. If the lawyer has a compelling interest in not informing
the client, such as to protect the lawyer, the lawyer’s family or a third person* from the risk of
death or substantial* bodily harm, the lawyer must withdraw from the representation. (See
rule 1.16.)
Other consequences of the lawyer’s disclosure
[13] Depending upon the circumstances of a lawyer’s disclosure of information protected by
Business and Professions Code section 6068, subdivision (e)(1) as permitted by this rule, there
may be other important issues that a lawyer must address. For example, a lawyer who is likely
to testify as a witness in a matter involving a client must comply with rule 3.7. Similarly, the
lawyer must also consider his or her duties of loyalty and competence. (See rules 1.7 and 1.1.)
Other exceptions to confidentiality under California law
[14] This rule is not intended to augment, diminish, or preclude any other exceptions to the
duty to preserve information protected by Business and Professions Code section 6068,
subdivision (e)(1) recognized under California law.
Rule 3.3 Candor Toward the Tribunal*
(Proposed Rule)
(a) A lawyer shall not:
(1) knowingly* make a false statement of fact or law to a tribunal* or fail to correct
a false statement of material fact or law previously made to the tribunal* by the
lawyer;
(2) fail to disclose to the tribunal* legal authority in the controlling jurisdiction
known* to the lawyer to be directly adverse to the position of the client and not
disclosed by opposing counsel, or knowingly* misquote to a tribunal* the
language of a book, statute, decision or other authority; or
(3) offer evidence that the lawyer knows* to be false. If a lawyer, the lawyer’s client,
or a witness called by the lawyer, has offered material evidence, and the lawyer
comes to know* of its falsity, the lawyer shall take reasonable* remedial
measures, including, if necessary, disclosure to the tribunal,* unless disclosure is
prohibited by Business and Professions Code section 6068, subdivision (e) and
rule 1.6. A lawyer may refuse to offer evidence, other than the testimony of a
defendant in a criminal matter, that the lawyer reasonably believes* is false.
(b) A lawyer who represents a client in a proceeding before a tribunal* and who knows*
that a person* intends to engage, is engaging or has engaged in criminal or fraudulent*
conduct related to the proceeding shall take reasonable* remedial measures to the
extent permitted by Business and Professions Code section 6068, subdivision (e) and
rule 1.6.
(c) The duties stated in paragraphs (a) and (b) continue to the conclusion of the proceeding.
(d) In an ex parte proceeding where notice to the opposing party in the proceeding is not
required or given and the opposing party is not present, a lawyer shall inform the
tribunal* of all material facts known* to the lawyer that will enable the tribunal* to
make an informed decision, whether or not the facts are adverse to the position of the
client.
Comment
[1] This rule governs the conduct of a lawyer in proceedings of a tribunal,* including
ancillary proceedings such as a deposition conducted pursuant to a tribunal’s* authority. See
rule 1.0.1(m) for the definition of “tribunal.”
[2] The prohibition in paragraph (a)(1) against making false statements of law or failing to
correct a material misstatement of law includes citing as authority a decision that has been
overruled or a statute that has been repealed or declared unconstitutional, or failing to correct
such a citation previously made to the tribunal* by the lawyer.
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[3] A lawyer’s duty of candor towards the tribunal includes the obligation to verify the
accuracy and existence of cited authorities, including ensuring no cited authority is fabricated,
misstated, or taken out of context, before submission to a tribunal, including any cited
authorities generated or assisted by artificial intelligence or other technological tools.
Legal Argument
[4] Legal authority in the controlling jurisdiction may include legal authority outside the
jurisdiction in which the tribunal* sits, such as a federal statute or case that is determinative of
an issue in a state court proceeding or a Supreme Court decision that is binding on a lower
court.
[5] The duties stated in paragraphs (a) and (b) apply to all lawyers, including defense
counsel in criminal cases. If a lawyer knows* that a client intends to testify falsely or wants the
lawyer to introduce false evidence, the lawyer should seek to persuade the client that the
evidence should not be offered and, if unsuccessful, must refuse to offer the false evidence. If a
criminal defendant insists on testifying, and the lawyer knows* that the testimony will be false,
the lawyer may offer the testimony in a narrative form if the lawyer made reasonable* efforts
to dissuade the client from the unlawful course of conduct and the lawyer has sought
permission from the court to withdraw as required by rule 1.16. (See, e.g., People v. Johnson
(1998) 62 Cal.App.4th 608 [72 Cal.Rptr.2d 805]; People v. Jennings (1999) 70 Cal.App.4th 899
[83 Cal.Rptr.2d 33].) The obligations of a lawyer under these rules and the State Bar Act are
subordinate to applicable constitutional provisions.
Remedial Measures
[6] Reasonable* remedial measures under paragraphs (a)(3) and (b) refer to measures that
are available under these rules and the State Bar Act, and which a reasonable* lawyer would
consider appropriate under the circumstances to comply with the lawyer’s duty of candor to
the tribunal.* (See, e.g., rules 1.2.1, 1.4(a)(4), 1.16(a), 8.4; Bus. & Prof. Code, §§ 6068, subd. (d),
6128.) Remedial measures also include explaining to the client the lawyer’s obligations under
this rule and, where applicable, the reasons for the lawyer’s decision to seek permission from
the tribunal* to withdraw, and remonstrating further with the client to take corrective action
that would eliminate the need for the lawyer to withdraw. If the client is an organization, the
lawyer should also consider the provisions of rule 1.13. Remedial measures do not include
disclosure of client confidential information, which the lawyer is required to protect under
Business and Professions Code section 6068, subdivision (e) and rule 1.6.
Duration of Obligation
[7] A proceeding has concluded within the meaning of this rule when a final judgment in
the proceeding has been affirmed on appeal or the time for review has passed. A prosecutor
may have obligations that go beyond the scope of this rule. (See, e.g., rule 3.8(f) and (g).)
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Ex Parte Communications
[8] Paragraph (d) does not apply to ex parte communications that are not otherwise
prohibited by law or the tribunal.*
Withdrawal
[9] A lawyer’s compliance with the duty of candor imposed by this rule does not require
that the lawyer withdraw from the representation. The lawyer may, however, be required by
rule 1.16 to seek permission of the tribunal* to withdraw if the lawyer’s compliance with this
rule results in a deterioration of the lawyer-client relationship such that the lawyer can no
longer competently and diligently represent the client, or where continued employment will
result in a violation of these rules. A lawyer must comply with Business and Professions Code
section 6068, subdivision (e) and rule 1.6 with respect to a request to withdraw that is
premised on a client’s misconduct.
[10] In addition to this rule, lawyers remain bound by Business and Professions Code sections
6068, subdivision (d) and 6106.
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Rule 5.1 Responsibilities of Managerial and Supervisory Lawyers
(Proposed Rule)
(a) A lawyer who individually or together with other lawyers possesses managerial
authority in a law firm,* shall make reasonable* efforts to ensure that the firm* has in
effect measures giving reasonable* assurance that all lawyers in the firm* comply with
these rules and the State Bar Act.
(b) A lawyer having direct supervisory authority over another lawyer, whether or not a
member or employee of the same law firm,* shall make reasonable* efforts to ensure
that the other lawyer complies with these rules and the State Bar Act.
(c) A lawyer shall be responsible for another lawyer’s violation of these rules and the State
Bar Act if:
(1) the lawyer orders or, with knowledge of the relevant facts and of the specific
conduct, ratifies the conduct involved; or
(2) the lawyer, individually or together with other lawyers, possesses managerial
authority in the law firm* in which the other lawyer practices, or has direct
supervisory authority over the other lawyer, whether or not a member or
employee of the same law firm,* and knows* of the conduct at a time when its
consequences can be avoided or mitigated but fails to take reasonable* remedial
action.
Comment
Paragraph (a) – Duties of Managerial Lawyers To Reasonably* Assure Compliance with the
Rules
[1] Paragraph (a) requires lawyers with managerial authority within a law firm* to make
reasonable* efforts to establish internal policies and procedures designed, for example, to
detect and resolve conflicts of interest, identify dates by which actions must be taken in
pending matters, account for client funds and property, ensure that inexperienced lawyers are
properly supervised, and govern the use of artificial intelligence, in accordance with the Rules
of Professional Conduct.
[2] Whether particular measures or efforts satisfy the requirements of paragraph (a) might
depend upon the law firm’s structure and the nature of its practice, including the size of the law
firm,* whether it has more than one office location or practices in more than one jurisdiction,
or whether the firm* or its partners* engage in any ancillary business.
[3] A partner,* shareholder or other lawyer in a law firm* who has intermediate managerial
responsibilities satisfies paragraph (a) if the law firm* has a designated managing lawyer
charged with that responsibility, or a management committee or other body that has
appropriate managerial authority and is charged with that responsibility. For example, the
managing lawyer of an office of a multi-office law firm* would not necessarily be required to
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promulgate firm-wide policies intended to reasonably* assure that the law firm’s lawyers
comply with the rules or State Bar Act. However, a lawyer remains responsible to take
corrective steps if the lawyer knows* or reasonably should know* that the delegated body or
person* is not providing or implementing measures as required by this rule.
[4] Paragraph (a) also requires managerial lawyers to make reasonable* efforts to assure
that other lawyers in an agency or department comply with these rules and the State Bar Act.
This rule contemplates, for example, the creation and implementation of reasonable*
guidelines relating to the assignment of cases and the distribution of workload among lawyers
in a public sector legal agency or other legal department. (See, e.g., State Bar of California,
Guidelines on Indigent Defense Services Delivery Systems (2006).)
Paragraph (b) – Duties of Supervisory Lawyers
[5] Whether a lawyer has direct supervisory authority over another lawyer in particular
circumstances is a question of fact.
Paragraph (c) – Responsibility for Another’s Lawyer’s Violation
[6] The appropriateness of remedial action under paragraph (c)(2) would depend on the
nature and seriousness of the misconduct and the nature and immediacy of its harm. A
managerial or supervisory lawyer must intervene to prevent avoidable consequences of
misconduct if the lawyer knows* that the misconduct occurred.
[7] A supervisory lawyer violates paragraph (b) by failing to make the efforts required under
that paragraph, even if the lawyer does not violate paragraph (c) by knowingly* directing or
ratifying the conduct, or where feasible, failing to take reasonable* remedial action.
[8] Paragraphs (a), (b), and (c) create independent bases for discipline. This rule does not
impose vicarious responsibility on a lawyer for the acts of another lawyer who is in or outside
the law firm.* Apart from paragraph (c) of this rule and rule 8.4(a), a lawyer does not have
disciplinary liability for the conduct of a partner,* associate, or subordinate lawyer. The
question of whether a lawyer can be liable civilly or criminally for another lawyer’s conduct is
beyond the scope of these rules.
Rule 5.3 Responsibilities Regarding Nonlawyer Assistants
(Proposed Rule)
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a lawyer who individually or together with other lawyers possesses managerial authority
in a law firm,* shall make reasonable* efforts to ensure that the firm* has in effect
measures giving reasonable* assurance that the nonlawyer’s conduct is compatible with
the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer, whether or not an
employee of the same law firm,* shall make reasonable* efforts to ensure that the
person’s* conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person* that would be a violation of
these rules or the State Bar Act if engaged in by a lawyer if:
(1) the lawyer orders or, with knowledge of the relevant facts and of the specific
conduct, ratifies the conduct involved; or
(2) the lawyer, individually or together with other lawyers, possesses managerial
authority in the law firm* in which the person* is employed, or has direct
supervisory authority over the person,* whether or not an employee of the
same law firm,* and knows* of the conduct at a time when its consequences can
be avoided or mitigated but fails to take reasonable* remedial action.
Comment
Lawyers often utilize nonlawyer personnel, including secretaries, investigators, law student
interns, and paraprofessionals. Such assistants, whether employees or independent
contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must
give such assistants appropriate instruction and supervision concerning all ethical aspects of
their employment, including the use of technology in the provision of legal services, such as
artificial intelligence. The measures employed in instructing and supervising nonlawyers should
take account of the fact that they might not have legal training.
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