Does the ABA Model Code of Professional Responsibility bind California lawyers?

Currency note

This opinion was issued in 1983, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rule 1-100, the provision now addressed by current Rule 1.0 and the rules' scope provisions. Subsequent rule amendments or later opinions may have changed the analysis, and California has since adopted a numbering scheme patterned on the ABA Model Rules. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, statute, 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 what authority the ABA Model Code of Professional Responsibility carries for a California lawyer. It concluded that, despite an apparent widespread misconception, the ABA Code is not binding in California; it stands like a sister-state rule or court opinion, persuasive only where there is no controlling California rule of professional conduct, statute, or court ruling, and subject to California public policy and to reasonable inferences drawn from existing California authority.

The committee traced the text of Rule 1-100. Former Rule 1, approved by the California Supreme Court in 1928, "commended" the ABA Canons to State Bar members; a later amendment, after the ABA adopted its Model Code in 1969, provided that the ABA Code "should be noted" by members of the State Bar. The version of Rule 1-100 adopted in 1975, however, deleted every reference to the ABA Code and instead provided only that the prohibition of certain conduct is not to be interpreted as approval of conduct not specifically mentioned. The committee reasoned that the deliberate removal of all references in 1975 by the Board of Governors and the Supreme Court could only reasonably mean the ABA Code was not intended to carry any special significance for California lawyers.

The committee read the case law the same way, citing People v. Ballard, which noted that California attorneys are governed by the California rules rather than the ABA rules (while itself referring to the ABA rules as supporting authority), and Altschul v. Sayble, suggesting the ABA Code can assist where California courts have not spoken. The committee placed the State Bar Act, the California Rules, the various California codes, and California appellate opinions as the basis for professional responsibility in California, with sister-state rules, federal court opinions, and the ABA rules available as collateral sources whose persuasiveness depends on their underlying logic and historical basis.

Common questions

Q: Does the ABA Model Code of Professional Responsibility bind California lawyers?

A: No. The committee concluded the ABA Code has no direct effect on California lawyers practicing in state and federal courts in California; California conduct is governed by the State Bar Act, the California Rules, California statutes, and California appellate opinions.

Q: Can a California lawyer or court still look to the ABA Code at all?

A: Yes, as a collateral source. The committee concluded the ABA Code may be consulted, like a sister-state rule, particularly where there is no controlling California rule, statute, or appellate opinion and no conflict with California public policy.

Q: What changed the ABA Code's status in California?

A: The committee pointed to the 1975 version of Rule 1-100, which deleted the earlier references that had "commended" or directed members to "note" the ABA Canons and Code, leaving the ABA Code without any special standing in California.

Background and rules framework

The opinion interprets former Rule 1-100 of the California Rules of Professional Conduct, which provides that the California rules are not intended to supersede other law governing attorney conduct and that prohibiting certain conduct is not approval of conduct not mentioned. The opinion traces that provision back to former Rule 1 (approved by the California Supreme Court in 1928) and its later amendment after the ABA adopted the Model Code of Professional Responsibility in 1969. The question of which body of professional-conduct authority binds a lawyer is addressed in the Model Rules' scope and preamble provisions; California has since renumbered its rules to track the ABA Model Rules format.

Citations and references

Rules of Professional Conduct:

• Former California Rule 1-100 (scope; relation to other law)
• Former California Rule 1 (1928; as later amended) (ABA Canons and Code "commended" / "noted")
• ABA Model Code of Professional Responsibility (1969)

Cases:

• People v. Ballard (1980) 104 Cal.App.3d 757, conduct of California attorneys governed by California rules, not the ABA rules
• Altschul v. Sayble (1978) 83 Cal.App.3d 153, ABA Code as assistance where California courts have not spoken

Other authorities:

• "Origin of Proposed New Rules of Professional Conduct" (1974) 49 State Bar Journal 546
• Rule 110-3, Local Rules, United States District Court for the Northern District of California (standards of professional conduct)

See also

No sibling opinions yet indexed.

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/1983-71.htm

Original opinion text

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

THE STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT

FORMAL OPINION NO. 1983-71

ISSUE:

What authority does the ABA Model Code of Professional Responsibility have for the California lawyer?

DIGEST:

Although there is apparent widespread misconception, the ABA Model Code of Professional Responsibility, (ABA code) like sister state rules and court opinions, is not binding in California although it may be persuasive in those instances where there is no controlling rule of professional conduct, statute or Court ruling in California. The ABA code, if otherwise applicable, would be subject to the public policy of the state of California and reasonable inferences which may be drawn from existing California Rules of Professional Conduct, statutes and court rulings.

AUTHORITIES INTERPRETED:

Rule 1-100, Rules of Professional Conduct of the State Bar of California.

DISCUSSION

Currently Rule 1-100 provides that the provisions of the California rules are not intended to supersede any provisions of law relating to attorney conduct, nor is prohibition of certain conduct intended to be approval of conduct not specifically mentioned. This rule became effective in January 1975. Predecessor versions of the rule included the phrase "the Code of Professional Responsibility of the American Bar Association should be noted by the members of the State Bar." Because of the omission of any reference to the ABA code in the January 1975 version, it would seem the ABA rules are not authoritative in California but can be looked to for guidance or support for conduct, e.g., People v. Ballard (1980) 104 Cal.App.3d 757.

The origin of present Rule 1-100 derives from former Rule 1 of the California Rules of Professional Conduct. (See "Origin of Proposed New Rules of Professional Conduct" (1974) 49 State Bar Journal 546.) Former Rule 1, approved by the Supreme Court of California on May 24, 1928, provided insofar as pertinent here:

"...[T]hese rules shall be binding upon all members of the State Bar, and the willful breach of any of these rules shall be punishable by suspension from the practice of the law for a period not to exceed one year. The specification in these rules of certain conduct as unprofessional is not to be interpreted as an approval of conduct not specifically mentioned. In that connection the Canons of Ethics of the American Bar Association are commended to the members of The State Bar." (Emp. added.)

Following the adoption of the American Bar Association Model Code of Professional Responsibility in 1969, former Rule 1 was amended as follows:

"...The specification in these rules of certain conduct as unprofessional is not to be interpreted as an approval of conduct not specifically mentioned. In that connection the Code of Professional Responsibility of the American Bar Association should be noted by the members of the State Bar..." (Emp. added.)

Present Rule 1-100, adopted in 1975, deleted any references to the American Bar Association Code, and inserted the following:

"The prohibition of certain conduct in these rules is not to be interpreted as an approval of conduct not specifically mentioned."

In People v. Ballard (1980) 104 Cal.App.3d 757, 761, the court noted that the conduct of California attorneys is governed by the California rules and not by the ABA rules. It is interesting to note that this court, nevertheless, did refer to ABA rules as authority in support of its decision.

The removal of all references to the ABA code in the 1975 version of Rule 1-100 by the Board of Governors and the California Supreme Court can only reasonably mean that the ABA code is not intended to be looked to as having any special significance to California lawyers. The California courts seem to suggest that the ABA code can be of assistance and may where the California courts have not spoken, (e.g., Altschul v. Sayble (1978) 83 Cal.App.3d 153.) The ABA code would thus have the same force and effect as sister state rules and court rulings.

The Federal courts in California publish local rules of court which govern practice before them and provide therein for standards of professional conduct. For example, Rule 110-3 of the local rules for the Northern District provides that the attorney "shall be familiar with and comply with the standards of professional conduct required by members of the State Bar of California and contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of California, and decisions of any court applicable thereto."

The State Bar Act found in the Business and Professions Code, Rules of Professional Conduct; various statutes passed by the Legislature, e.g., Civil Code, Code of Civil Procedure, Corporations Code, Education Code, Evidence Code, Government Code, Penal Code, Revenue and Taxation Code, and opinions of the California Appellate Courts form the basis for establishing professional responsibility and conduct of California attorneys. To the extent these sources do not answer a particular question or solve a problem, other sources are explored, including sister state rules, court opinions, federal court opinions and the ABA rules of professional conduct. The persuasiveness of these collateral sources should depend upon their underlying logic and historical basis.

CONCLUSION

The ABA code of professional responsibility has no direct effect on California lawyers practicing in state and federal courts within California State of law. It would, however, appear that the ABA rules may be looked to as a collateral source, particularly in those instances where there is no direct authority found under applicable California rules, statutes or California appellate court opinions and there is no conflict with the public policy of California.

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.