Rogue State

As I've mentioned before, I greatly resent California's gross over-emphasis on morality and ethics with respect to becoming an attorney. This resentment has translated into a mental bock regarding all the ethical crap I need to know for the Bar Exam, though after spending a few hours on it this morning it's beginning to crystallize.

I'm finding that, despite the fact that California makes you do four morally-related feats of strength before becoming a lawyer (a semester of Professional Responsibility, the moral character application, the MPRE, and the Professional Responsibility coverage on the Bar Exam), California is actually a rogue state when it comes to legal ethics. Bar takers are responsible for the ABA rules along with California's deviations therefrom, and California's deviations are many and significant.

For example, under the ABA Rules a lawyer may breach confidentiality if the lawyer believes it is necessary to prevent death, serious bodily injury, or serious financial loss to a third party. In California, a lawyer cannot breach confidentiality to prevent financial harm only. Another (more mundane but slightly more revealing) exception concerns lawyers purchasing the intellectual property rights to the the client's story. Under the ABA rules the lawyer has to wait until the representation has concluded. In California, the lawyer can buy the rights during trial, as long as the judge passes off on it. Our lecturer's advice in this regard was "Think Hollywood."

But my absolute favorite California distinction concerns perjury in criminal cases. Under the ABA rules (and the Constitution for that matter), a criminal defense attorney lawyer cannot prevent his client from testifying, even if the attorney knows that the client intends to commit perjury. When faced with this problem, the ABA rules require the lawyer to (1) attempt to talk his client into testifying truthfully or not testifying at all, and, failing that, to (2) withdraw from representation and (3) tell the judge if necessary.

In California, you're supposed to try to talk your client out of it. If that doesn't work, you may (but are not required to) withdraw, and you may allow your client to perjure herself as long as you don't provide any affirmative assistance. This means that a lawyer can allow a client to testify "in a narrative form," without furthering the perjury with specific questions, and the lawyer cannot refer to the perjury in closing argument. This means that a lawyer can knowingly present false evidence in a criminal trial in California.

So perhaps the real reason for all this emphasis on professional responsibility is to ensure that California lawyers know exactly what they can get away with.