CPIL’s Request to State Bar for Ethics Opinion Addressed in The Recorder

CPIL’s Request to State Bar for Ethics Opinion Addressed in The Recorder

SAN DIEGO (June 10, 2019) –University of San Diego (USD) School of Law’s Center for Public Interest Law’s (CPIL) submitted a letter to the State Bar of California Committee on Professional Responsibility and Conduct (COPRAC), last week, asking them to issue a formal ethics opinion on an attorney’s participation in the drafting, review (without objection), approval, or execution of contractual language in an employment agreement that is unambiguously illegal or unenforceable is a violation of Rule 8.4(c), Rule 1.2.1, or any other rules of the California Rules of Professional Conduct.

The article in The Recorder highlights how many lawyers have routinely included unenforceable terms, like noncompete agreements, in worker contracts. CPIL has asked COPRAC to publicly issue a formal opinion on whether drafting, reviewing (without objection), approving, and/or causing to be signed an employment contract or agreement between a business and worker that contains contractual provisions that the lawyer knows or should know are unambiguously illegal and unenforceable, violates Rule 8.4(c) of the California Rules of Professional Conduct, which prohibits “conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation;” Rule 1.2.1, which prohibits “counsel[ing] a client to engage, or assist[ing] a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule or ruling of a tribunal;” or any other ethical rule. In addition, CPIL asks that the ethics opinion also make clear whether including noncompete agreements, clauses allowing the employer to unilaterally choose an arbitrator, out-of-state forum selection clauses, and other obviously unenforceable terms in employment contexts would violate the California Rules of Professional Conduct.

Read the full article by Terri Gerstein and Brian Shearer at Justice Catalyst Law in The Recorder here.

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About Center for Public Interest Law

Founded in 1980, the University of San Diego School of Law’s Center for Public Interest Law (CPIL) serves as an academic center of research and advocacy in regulatory and public interest law. CPIL focuses its efforts on the study of an extremely powerful, yet often overlooked, level of government: state regulatory agencies. Under the supervision of experienced public interest attorneys and advocates, CPIL law student interns study California agencies that regulate business, professions, and trades.

CPIL publishes the California Regulatory Law Reporter, a unique legal journal that covers the activities and decisions of over 12 major California regulatory agencies.

In addition to its academic program, CPIL has an advocacy component. Center faculty, professional staff, and interns represent the interests of the unorganized and underrepresented in California’s legislature, courts, and regulatory agencies. CPIL attempts to make the regulatory functions of California government more efficient and visible by serving as a public monitor of state regulatory activity. The Center has been particularly active in reforming the state’s professional discipline systems for attorneys and physicians, and in advocating public interest reforms to the state’s open meetings and public records statutes.

About the University of San Diego School of Law

Recognized for the excellence of its faculty, curriculum and clinical programs, the University of San Diego (USD) School of Law educates approximately 800 Juris Doctor and graduate law students from throughout the United States and around the world. The law school is best known for its offerings in the areas of business and corporate law, constitutional law, intellectual property, international and comparative law, public interest law and taxation.

USD School of Law is one of the 84 law schools elected to the Order of the Coif, a national honor society for law school graduates. The law school's faculty is a strong group of outstanding scholars and teachers with national and international reputations and currently ranks 36th nationally among U.S. law faculties in scholarly impact and 29th nationally in past-year faculty downloads on the Social Sciences Research Network (SSRN). The school is accredited by the American Bar Association and is a member of the Association of American Law Schools. Founded in 1954, the law school is part of the University of San Diego, a private, independent, Roman Catholic university chartered in 1949.


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