Is it ethical for a lawyer to request or agree to a trial date the lawyer knows or intends not to honor?

Currency note

This opinion was issued in 1972, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion grounds its analysis in Business and Professions Code sections 6068(d), 6101, and 6128, and ABA Code of Professional Responsibility Disciplinary Rule 1-102, the framework predating current Rules 3.3 (candor toward the tribunal) and 8.4 (misconduct). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee was asked about the common situation in which attorneys ask for and agree to trial dates they know they cannot fulfill, because of other cases set on nearby dates or for some other reason. The committee identified the key words in the request as "intend" and "know": if the attorney does not intend to try the case on the date he requests or agrees to, or knows he cannot meet his commitment to the court and opposing counsel, the conduct involves deceit and misrepresentation.

The committee concluded that such conduct is not only unethical but a misdemeanor. It cited Business and Professions Code section 6128(a) (an attorney is guilty of a misdemeanor for any deceit with intent to deceive the court or any party), ABA Disciplinary Rule 1-102 (a lawyer shall not engage in conduct involving deceit or misrepresentation, or conduct prejudicial to the administration of justice), and ABA Canon 8 and Ethical Consideration 8-5 (deceptive conduct before a tribunal is inconsistent with the fair administration of justice). It also cited Business and Professions Code section 6068(d) (the duty to use only means consistent with truth and never to mislead the court by artifice or false statement) and section 6101 (acts of moral turpitude as grounds for disbarment or suspension), and Grove v. State Bar (1965), where failing to inform the judge of opposing counsel's continuance request was held to mislead the court and to involve moral turpitude.

Common questions

Q: Is it unethical to agree to a trial date you know you cannot keep?

A: Yes. The committee concluded that requesting or agreeing to a trial date the attorney does not intend to keep, or knows he cannot meet, involves deceit and misrepresentation, which is unethical.

Q: Can such conduct lead to more than discipline?

A: Yes. The committee noted it is also a misdemeanor under Business and Professions Code section 6128(a) (deceit with intent to deceive the court or a party), and that acts of moral turpitude are grounds for suspension or disbarment under section 6101.

Q: What does the duty of candor to the court require here?

A: The committee pointed to Business and Professions Code section 6068(d): an attorney must use only means consistent with truth and never seek to mislead the judge by artifice or false statement of fact or law, as illustrated by Grove v. State Bar.

Background and rules framework

The opinion grounds the duty of candor in Business and Professions Code sections 6068(d), 6101, and 6128, together with ABA Disciplinary Rule 1-102 and Canon 8 / Ethical Consideration 8-5. These duties are now addressed by Model Rule 3.3 (candor toward the tribunal) and Model Rule 8.4 (misconduct, including dishonesty and conduct prejudicial to the administration of justice), and their California analogs.

Citations and references

Rules of Professional Conduct:

• ABA Code of Professional Responsibility, Disciplinary Rule 1-102; Canon 8; Ethical Consideration 8-5
• Current analogs: Model Rules 3.3 and 8.4 / California Rules 3.3 and 8.4

Statutes:

• California Business and Professions Code sections 6068, subdivision (d); 6101; and 6128, subdivision (a)

Cases:

• Grove v. State Bar (1965) 63 Cal.2d 312 [46 Cal.Rptr. 513], misleading the court and moral turpitude

See also

• CA Ethics Op. 1970-22: Conflicts in Joint Criminal Defense

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1972-30.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Requesting or agreeing to a trial date when the attorney does not intend to commence the trial on that date.

American Bar Association Code of Professional Responsibility, Disciplinary Rule 1-102.

Business and Professions Code sections 6068, 6101, and 6128.

The request for an opinion states that, on many occasions, attorneys ask for and agree to trial dates they know they cannot fulfill, either because they already have other cases set on dates shortly prior to or shortly after the date set or for some other reason, making it impossible for them to fulfill their commitments to the courts.

The key words in the request are the words "intend" and "know." If the attorney does not intend to try the cause on the specific date he requests, or agrees to, or knows that he cannot meet his commitment to the court and opposing counsel, his conduct involves deceit and misrepresentation. Such conduct is not only unethical, but constitutes a misdemeanor for which the attorney may be suspended or disbarred.

Section 6128, subdivision (a), of the Business and Professions Code provides that every attorney is guilty of a misdemeanor who is guilty of any deceit with intent to deceive the court or any party.

American Bar Association Code of Professional Responsibility, under canon 1, states:

"[Disciplinary Rule] 1-102 Misconduct.

"A. A lawyer shall not:

. . .

"(4) Engage in conduct involving ... deceit, or misrepresentation.

"(5) Engage in conduct that is prejudicial to the administration of justice."

Canon 8 of the American Bar Association Code of Professional Responsibility admonishes that a lawyer should assist in improving the legal system. Ethical Consideration 8-5 states that deceptive conduct by a participant in a proceeding before a tribunal is inconsistent with fair administration of justice and should never be participated in or condoned by lawyers.

Section 6068 of the Business and Professions Code provides that it is the duty of the attorney:

"(d) To employ, for the purpose of maintaining the cause confided to him such 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."

Section 6101 of the Business and Professions Code provides that the commission of any act involving moral turpitude, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.

In Grove v. State Bar (1965) 63 Cal. 2d 312 [46 Cal. Rptr. 513] the court, citing sections 6068, subdivision (d), and 6106 of the Business and Professions Code, held that an attorney's failure to inform the judge of opposing counsel's request for a continuance constituted misleading "the judge or any judicial officer by an artifice or false statement of fact or law," and constituted an "act involving moral turpitude."