Professional Responsibility on the California Bar Exam: What do the New Changes Mean?

Professional Responsibility on the California Bar Exam: What do the New Changes Mean?

If you are taking the California bar exam in 2019 or later, you may have heard about the changes that California has made to its Rules of Professional Conduct. You may wonder what this means for bar exam purposes. The changes are effective as of November 1, 2018. So, they are fair game to be tested first on the February 2019 bar exam.  You are probably especially curious about this if you are using older materials to study from or if you have taken the bar exam in the past. Will you have to completely forget everything you know? The good news is: no! Here, we talk about what the new changes mean for Professional Responsibility on the California Bar Exam. 

Professional Responsibility on the California Bar Exam: What do the New Changes Mean?

Just a quick overview of how you will see Professional Responsibility tested on the California Bar Exam:

Professional Responsibility always shows up in some form on the California Bar Exam. It is usually in an essay (and sometimes in more than one essay). If it is not tested in an essay, you will see a Professional Responsibility issue on a performance test.

You are expected to analyze Professional Responsibility issues that you see according to both California law and the ABA model rules. That is why you need to know the distinctions.

Now a note on the changes: 

California has retained many of its distinctions even though the changes have made its rules more in line with the model rules.

California did make major changes to its rules. One change it made was numbering — it changed its rules to be numbered in accordance with the ABA model rules. It also adopted some of the ABA model rules that it had previously differed from. Here, we give you a brief overview of some of these distinctions that have changed — and the ones that remain the same.

California Distinctions that Remain the Same:

Many of the highly tested California distinctions remain the same. For example: 

• The duty of confidentiality (which is semi frequently tested) is largely the same.
• California still prohibits “unconscionable” fees (rather than “unreasonable” fees, like the ABA)
• California has the same requirements regarding which fee agreements need to be in writing (e.g., those that are for over $1,000, with several exceptions)
• California still prohibits limits on malpractice liability. (This is not tested often but this did show up in February 2016.)

California Distinctions that have Changed: 

A few updates that are important for you to know for Professional Responsibility on the California bar exam: 

• California now states that a contingent fee is not permitted in a domestic relations action or criminal law action. This used to be different. Contingent fees were tested in February 2016, July 2006, and July 2005.
• California has changed its approach for concurrent client conflicts. So it is well worth it to look at Rule 1.7 at the link above. While it still requires a written disclosure in some circumstances (and differs from the ABA rules in that regard) and it still requires “informed written consent”, its approach has changed to be closer to the ABA model rules.
• Sexual relations are prohibited unless the pre-dated the lawyer-client relationship. This change has been talked about a lot! And it is tested with some frequency (See February 2016, July 2006, July 2005.) This rule is now in line with the ABA model rules.

Good luck studying for the California bar exam!

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