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Los Angeles Lawyer

The Magazine of the Los Angeles County Bar Association

 
  June 2005     Vol. 28, No. 4

 
 

MCLE Article: 2004 Ethics Roundup

In 2004 California courts continued to address the thorny ethical issues that confront the legal profession

By John W. Amberg and Jon L. Rewinski

John W. Amberg is a partner in the Santa Monica office of Bryan Cave LLP, and Jon L. Rewinski is a shareholder in the Los Angeles office of Heller Ehrman LLP. Both are former chairs and current members of the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee. Amberg also is a member of the State Bar of California's Standing Committee on Professional Responsibility and Conduct.

 
 

By reading this article and answering the accompanying test questions, you can earn one MCLE legal ethics credit. To apply for credit, please follow the instructions on the test.
 
  Professional ethics permeated the legal news last year. Writing an unusual non mea culpa opinion, U.S. Supreme Court Associate Justice Antonin Scalia declined to recuse himself from a case involving Vice President Dick Cheney despite taking a duck-hunting trip with Cheney while the case was pending before the Court.1 News reports revealed that Bush Administration lawyers (who have since been elevated to positions as U.S. attorney general and on the Ninth Circuit Court of Appeals and the Boalt Hall faculty) had written memos brushing aside the Geneva Conventions as "quaint" and "obsolete" while redefining torture as a tool of interrogation, and opining that any legal restraints on the president's power to direct the detention and interrogation of enemy combatants would be unconstitutional--a position rejected by the Supreme Court as a "blank check."2

In 2004, an attorney was held in contempt and referred to the State Bar for discipline after no one from his firm showed up for oral argument before the California Supreme Court and he falsely denied knowing about the scheduled argument.3 Also, the notoriety of a Beverly Hills law firm's abusive lawsuits against thousands of small businesses under Business and Professions Code Section 17200, followed by the prosecution of the lawyers and their resignations from the State Bar, helped propel an initiative to reform the statute to electoral victory in November of last year.4

Conflicts of Interest

In two recent published decisions, Farris v. Fireman's Fund Insurance Company5 and Brand v. 20th Century Insurance Company,6 courts of appeal addressed conflicts of interest arising in successive representation cases--that is, cases in which a lawyer who has already ended his or her representation of one client subsequently undertakes to represent another client against the former client. Courts have adopted a two-step test to determine whether the lawyer must be disqualified pursuant to Rule 3-310(E) of the Rules of Professional Conduct.7 First, did the lawyer have a direct and personal relationship with the former client? If so, is there a "substantial relationship" between the two representations?8 Successive representations are substantially related "when the evidence before the trial court supports a rational conclusion that information material to the evaluation, prosecution, settlement or accomplishment of the former representation given its factual and legal issues is also material to the evaluation, prosecution, settlement or accomplishment of the current representation given its factual and legal issues."9 Confidential information from the first engagement "must be found to be directly at issue in, or have some critical importance to" the second engagement.10

In Farris, a lawyer who had represented Fireman's Fund on coverage matters joined a new law firm and undertook to represent plaintiffs pursuing claims against Fireman's Fund for alleged failure to satisfy obligations under a policy. The lawyer had advised the carrier's senior employees and decision makers on coverage issues in scores of matters over a 12-year period ending a few months before the commencement of the new engagement. Because the lawyer had a direct and personal relationship with the carrier and the two engagements were substantially related, the Fifth District Court of Appeal required disqualification.

The Second District Court of Appeal addressed a similar situation in Brand. A lawyer who had represented 20th Century in scores of coverage matters over many years joined a new firm and undertook to represent plaintiffs pursuing claims against 20th Century. In Brand, however, the lawyer's prior representation of 20th Century had ended 12 years before the new engagement. Nevertheless, the court of appeal disqualified the lawyer, reasoning that he had a direct and personal relationship with the former client, and the two representations were substantially related. Without explanation, the court noted that "[t]he passage of 12 years between the two engagements did not neutralize [the plaintiff's lawyer's] representation in the first case."11

The result in Brand seems harsh. There is no indication in the opinion, however, that the lawyer introduced evidence--other than the passage of time--severing the link between the two engagements. Rule 3-310(E) is not intended to create a lifetime prohibition against representation adverse to a former client.12 When considering whether Rule 3-310(E) precludes a new engagement adverse to a former client with whom a lawyer had a direct and close relationship, the lawyer should analyze not only the nature of the two representations but also whether the former client has changed in any material way. For example, has a former corporate client been restructured? When in doubt, a lawyer can avoid disqualification by obtaining the informed written consent of the former client.

A conflict also may develop when a lawyer switches sides while a matter is pending. In North Pacifica, LLC v. City of Pacifica,13 the District Court for the Northern District of California disqualified lawyers who were retained by a city to provide expert testimony regarding a development permit. The lawyers previously provided advice on the permits to the developer.14 Without the former clients' informed written consent, the lawyers could not provide expert testimony on behalf of the city. The court, however, declined to disqualify the city's law firm, which had retained the disqualified lawyer-experts.

In City of Santa Barbara v. Superior Court,15 a lawyer also switched sides during the pendency of a matter. While in private practice, the lawyer represented homeowners in an action against Santa Barbara for damages caused by water and sewage. Before the resolution of the action, the lawyer quit her firm and joined the city attorney's office, which was representing Santa Barbara. Upon hiring the lawyer, the city attorney's office created an ethical screen to prevent the lawyer from gaining access to any information, documents, or other materials related to the homeowners' action. The office also instructed its employees not to involve the lawyer in any communications about the case. The plaintiffs sought to disqualify the city attorney's office, but the court of appeal declined to do so, concluding that the ethical screen was sufficient.

City of Santa Barbara is a case of first impression in California, in that ethical screening was found sufficient when a lawyer with direct, personal knowledge of client confidences relating to a specific litigation matter went to work for the client's adversary while the litigation was pending.16 Previous cases have permitted ethical screens as a defense against disqualification, but generally only when the newly employed lawyer did not personally work on the matter at issue during his or her former employment.17

Does City of Santa Barbara mean that ethical screening is always effective as a means to avoid conflict and disqualification? Not necessarily. The court of appeal specifically limited its holding to ethical screens erected in public law offices as opposed to private law firms.18 The court based this distinction on the fact that 1) public sector lawyers do not have a financial interest in the matters on which they work and, therefore, have less, if any, incentive to breach client confidences, 2) public sector lawyers do not recruit clients or accept fees, and 3) vicarious disqualification in the public sector context would impose different burdens on the affected public entities--for example, it would place public sector offices at a further competitive disadvantage in recruiting.19 Lawyers must wait and see whether an appellate court will approve ethical screening in a similar situation in a private law firm.

Absent effective screening, the entire law firm of a conflicted lawyer is also subject to disqualification because, in theory, the lawyer's knowledge is imputed to his or her law firm. Should the lawyer's knowledge also be imputed to his or her spouse so that the spouse's law firm is also subject to disqualification? In Derivi Construction & Architecture, Inc. v. Wong,20 the court of appeal declined to do so. In Derivi, former clients successfully moved to disqualify their former law firm from representing their adversaries in a breach of contract action. The adversaries then engaged a new lawyer. That lawyer was married to the lawyer who handled the prior engagement at the disqualified law firm. Assuming that the married lawyers shared confidential information about their cases, the former clients moved to disqualify their adversaries' new law firm. The trial court denied the motion to disqualify, and the court of appeal affirmed, reasoning that "[s]peculative contentions of conflict of interest cannot justify disqualification of counsel."21 Just as a court will not presume that lawyers will disclose confidences to their close friends, courts will not presume that lawyers will disclose confidences to their spouses.22

Disqualification is not the only risk resulting from a violation of Rule 3-310. Lawyers improperly handling conflicts also risk claims for legal malpractice and breach of fiduciary duty. In Benasra v. Mitchell Silberburg & Knupp LLP,23 former clients of a law firm sued the firm and two of its former partners for legal malpractice and breach of the duty of loyalty based on the lawyers' conduct in arbitration proceedings. In the arbitration,

the lawyers represented the former clients' adversary. No confidential information was disclosed, but the lawyers vigorously cross-examined the former clients. The former clients alleged that this constituted a violation of Rule 3-310 and a breach of the duty of loyalty.

The trial court dismissed the legal malpractice claim under the anti-SLAPP statute.24 The court of appeal reversed, holding that legal malpractice claims are not subject to the anti-SLAPP statute.

The court of appeal was not troubled by the fact that the lawyers had not disclosed confidential information. The court reasoned that a violation of Rule 3-310 occurs when a lawyer abandons one client (even a former client) to represent a new client in proceedings in which the new client may benefit from the lawyer's relationship with the former client.25 A former client "is simply not required to forfeit the right to control the disclosure of its confidential information to the unfettered determination of its attorney regardless of his vow to protect the client's confidences."26 Even though the lawyer believes he or she can maintain the confidence of the former client, the former client does not have to take the lawyer's word for it.

Fee Sharing

In Huskinson & Brown LLP v. Wolf,27 the supreme court resolved an issue left open by its landmark 2002 decision concerning fee-sharing agreements, Chambers v. Kay.28 In Chambers, the supreme court applied Rule 2-200 of the Rules of Professional Conduct strictly and refused to enforce a fee-splitting agreement between two lawyers that the client had not approved in writing. The lawyer seeking his promised share of the fee was punished for ignoring the rule's requirements, but the other lawyer--who not only violated the rule but also reneged on his deal with a fellow member of the bar--received a windfall. In Huskinson, the supreme court redressed this injustice by permitting the plaintiff lawyer to recover under a theory of quantum meruit for the reasonable value of his legal services, notwithstanding the failure of the client to approve the arrangement in writing.

In another fee-sharing case, the court of appeal held in Mink v. Maccabee29 that an agreement to share fees complied with Rule 2-200 even though the client did not sign off on the arrangement until the end of the litigation, after the services already had been provided. The court explained that the rule only required the client's written consent prior to any division of the fees.30

In McIntosh v. Mills,31 the court drew a clear distinction between an agreement to share fees among lawyers governed by Rule 2-200 and an agreement to split attorney's fees with a nonlawyer, which is prohibited by Rule 1-320(A). The McIntosh court refused to enforce an illegal contract between the plaintiffs' counsel and a supposedly independent banking consultant to share the financial benefits from several successful class actions against Bank of America, noting that the contract was part of an "appalling abuse of the civil justice system" in which the expert had denied the existence of the promised payment under oath and then sued to enforce it after the lawyers refused to divide the spoils.

Limited Scope of Representation

There is a public interest in making legal representation available to all, including those who ordinarily may not be able to afford counsel or who seek only limited services. However, as the seminal case Nichols v. Keller32 held, limiting the scope of a lawyer's representation, whether by choice or necessity, does not necessarily mean that the lawyer's duties to the client are limited. This principle was reaffirmed in Janik v. Rudy, Axelrod & Zieff,33 in which lawyers who had obtained a $90 million class action settlement were sued by a member of the class on the ground that the lawyers had failed to proceed under an alternative theory that allegedly would have produced an even greater recovery. The lawyers defended by arguing that they owed their client no duty with respect to claims that were not specified in the class certification order. The court of appeal disagreed, citing Nichols for the rule that an attorney who undertakes one matter on behalf of a client owes that client a duty to consider and advise the client if there are apparent related matters that the client is overlooking and that should be pursued to avoid prejudicing the client's interests--"even though they fall outside the scope of the retention."34 The Janik court advises counsel to seek guidance from the court if they are in doubt as to their duty to the class.35

Advertising

Two opinions by the State Bar's Standing Committee on Professional Responsibility and Conduct (COPRAC) addressed legal advertising issues governed by Rule 1-400 of the Rules of Professional Conduct. In Formal Opinion 2004-166, the committee considered a form of Internet ambulance chasing, in which a lawyer joined an Internet chat room for mass disaster victims for the purpose of soliciting business. The opinion concludes that while the lawyer's communications would not constitute a prohibited "solicitation" under the rule, which regulates communications delivered only in person or over a telephone, the lawyer nevertheless violated two other parts of the rule. First, the communication violated Rule 1-400(D)(5)'s ban on lawyer communications that intrude or cause duress: "Victims and family members who visit the chat room are there to seek emotional support, and do not expect to encounter a lawyer hoping to be retained."36 Second, under Standard (3) adopted by the State Bar, the communication is a presumed violation of the rule if the lawyer knows or reasonably should know that visitors to the mass disaster chat room "are in such a physical, emotional or mental state that [they] would not be expected to exercise reasonable judgment as to the retention of counsel."37

Formal Opinion 2004-167 considered the circumstances under which an attorney may use a trade name, a professional designation, or a current or former government title in promoting the attorney's law practice. Truthful advertising is protected by the First Amendment, but Rule 1-400 and Standard (6) promulgated by the State Bar guard against even truthful advertising that may mislead the public into believing that a lawyer is connected to a government agency. The opinion considered three examples. First, a private law firm called itself the Workers Compensation Relief Center. This name was deemed misleading because it suggested a connection between the firm and a state agency and because of the nature of the services offered by the firm. The firm could avoid the problem by always including a prominent disclaimer, such as "A Private Law Firm," next to its name.38 Second, an attorney who also serves as a part-time government official could not include her official title on her firm letterhead or business cards without violating Standard (6) because this would blur her public and private roles in a manner likely to be misleading to the public.39 The reach of Standard (6) is narrow, however, and would not prohibit the lawyer from listing her government position in her resume or firm brochure, or from claiming expertise on government law by virtue of her work as a public official. These allusions to her government service provide the necessary context for potential clients. Third, lawyers who no longer hold a government position may not use their former title in their firm's name or on their letterhead without including the qualification that they are retired or that the title alludes to a former position. Absent this qualification, the use of the former title is inherently misleading and presumptively violates Rule 1-400.40

Duties to Nonclients

A lawyer's liability for professional wrongdoing extends beyond the client only in limited circumstances. Nonclients stating claims against lawyers have included 1) intended beneficiaries in connection with estate planning,41 2) a party to a transaction who reasonably relies on a lawyer's inaccurate letter opinion,42 3) franchisees injured by a misleading prospectus,43 and 4) a client's spouse for a lawyer's failure to advise the client and his or her spouse of a potential loss of consortium claim.44

During 2004, in Osornio v. Weingarten,45 the Sixth District Court of Appeal concluded that the named executor and sole beneficiary under a will should have been afforded leave to amend a complaint against the testator's lawyer for alleged failure to prepare a certain probate certificate necessary to make the bequest effective. The court reached this conclusion based on an analysis of the factors enumerated in the 1958 case Biakanja v. Irving46 and the 1961 decision Lucas v. Hamm.47 While stating that it did not intend its decision to imply "that a transferor's attorney guarantees the success of the client's intended transfer,"48 the court also noted that public policy supports encouraging lawyers to devote their best professional efforts on behalf of their clients in order to ensure that transfers of property to intended beneficiaries are free from any avoidable challenges.49

Although an intended beneficiary may be able to assert a claim for negligence against the testator's lawyer, in Boranian v. Clark50 the court ruled that children could not assert a claim for negligence against their mother's lawyer when three days before the mother's death--while the mother was heavily medicated, hallucinating, and semiconscious--the lawyer changed the will to bequeath the mother's entire estate to a male companion the mother first met about a year before her death. The court reasoned that the lawyer's primary duty was to the mother--the testator-client--whose intention the lawyer must serve and carry out. To make the lawyer an arbiter of a dying client's true intent or responsible to third parties whom the client does not designate as beneficiaries would compromise the lawyer's duty of undivided loyalty to the client.

Communications with Represented Parties

Rule 2-100 of the Rules of Professional Conduct prohibits a lawyer from communicating directly or indirectly about the subject of a representation with a party the lawyer knows to be represented by another lawyer in the matter without the consent of the party's lawyer. If a party has two sets of lawyers, need one obtain the consent of both? This issue was analyzed in La Jolla Cove Motel & Hotel Apartments, Inc. v. Superior Court.51 A minority shareholder petitioned to dissolve a corporation. During the litigation, the shareholder sought appointment of a receiver. In support of the motion, the shareholder submitted declarations of two of the corporation's directors whom the shareholder had appointed to the board. Although the shareholder's lawyers had permission from the directors' separate lawyers to speak with the directors, the corporation's lawyers refused to give their consent. Alleging a violation of Rule 2-100, the corporation moved to disqualify the shareholder's lawyers. The court of appeal concluded that disqualification was not required in this case because 1) the shareholder's lawyers had the consent of the directors' separate lawyers, 2) there was no evidence that any confidential information was disclosed, and 3) disqualification was not otherwise necessary to preserve the integrity of the judicial process.

Although finding that the ex parte contact in this case was permissible, the court warned, "In most cases it would be advisable and prudent for separate counsel to consult with the corporation's counsel before allowing the director to have contact with counsel suing the corporation to ensure that attorney-client privileged communications or other confidential matters are not disclosed."52

Who Is the Client?

Occasionally even the identity of the client is a matter in dispute. In Borissoff v. Taylor & Faust,53 the court-appointed administrator of an estate retained lawyers to assist him with tax issues for the estate. When he died, a new administrator was appointed for the estate. Unfortunately, the lawyers missed a deadline for filing some tax forms, which precluded the estate from claiming a refund for certain expenses. The new administrator sued the lawyers for malpractice. Though both the trial and appellate courts found that the lawyers owed no duty to the successor administrator, the state supreme court reversed, concluding that the successor administrator was the lawyers' client. According to the supreme court, the lawyers represented the previous administrator in his representative capacity only, and therefore the successor administrator became the client upon his appointment by the probate court. The successor acquired the same powers as the predecessor had with respect to trust administration, including the power to sue for malpractice.54 The duties of confidentiality and loyalty were not compromised because the predecessor's and successor's interests were identical regarding matters of estate administration.55 Although the predecessor and successor administrators are different people, they constitute one client.

Bad Acts

A lawyer who lied to the California Supreme Court was held in contempt and referred to the State Bar for discipline in In re Aguilar.56 Raul Aguilar sued his former divorce lawyer for malpractice. A novel issue arose whether, after filing suit, his claims were subject to arbitration under the mandatory fee arbitration statute, and the case was accepted for review by the supreme court.57 Aguilar was represented by Arthur Kent, a lawyer in his law firm. Five days before the scheduled oral argument in the supreme court, Kent left Aguilar's law firm, claiming constructive discharge. Kent did not notify the court that he would not be appearing for the argument, and no one from the firm was present when the case was called. The supreme court clerk telephoned the law firm while the justices waited, and Aguilar claimed that he was unaware of the scheduled oral argument in his own case. The court ordered Aguilar and Kent to show cause why they should not be held in contempt of court for willful neglect of the duty to appear for oral argument.

In an unusual session before the court, Aguilar repeated that he had not been aware of the argument date. This alibi was rejected, however, after an evidentiary hearing before the State Bar Court, and the supreme court held Aguilar in contempt for repeatedly lying to it and thereby violating Business and Professions Code Section 6068(d) and Rule 5-200(B) of the Rules of Professional Conduct, which prohibits misstatements to a judge.58 Furthermore, holding that Aguilar's law firm, not Kent, was the counsel of record, the supreme court held Aguilar as the managing lawyer of the firm in contempt for intentionally failing to assign another lawyer to appear at the oral argument. The court fined Aguilar $1,000 and referred the matter to the State Bar for the imposition of possible further discipline. The court also found Kent in contempt for failing to advise the court of his nonappearance and fined him $250.59

In Tuttle v. Combined Insurance Company,60 the plaintiff arranged for an employee of the defendant insurance company to travel from Oregon to Fresno to testify in her case. The evening before the employee was scheduled to testify, attorneys for the insurance company met with her, and she abruptly left town. When it was revealed the witness was missing, the insurance company lawyers denied knowing her whereabouts. The magistrate judge asked for permission to speak with her, but the insurance company refused and instead offered to provide a declaration from the witness explaining the reasons for her departure from the jurisdiction. The following day, the witness telephoned the court and stated that the declaration drafted by the insurer's lawyer did not describe the real reasons she had left, and she would not sign it. She described her meeting with the insurance company lawyers, during which she felt pressured to go home. After she agreed to leave, the insurance company moved her from the hotel where she was staying when she first arrived in Fresno to another hotel until she could catch an early plane. In the call to the court, the witness offered to return, and the court ordered the insurance company to pay her travel expenses.61

Although the witness returned to testify, the court sanctioned the insurance company's lawyers for violating Rule 5-200 and Rule 5-310(A), which prohibits "[a]dvis[ing] or directly or indirectly caus[ing] a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of making that person unavailable as a witness therein." The court held the lawyers' argument that they represented the witness was false and a "red herring" that would not excuse their having made her unavailable. Further, the court characterized the lawyers' lack of candor with the court as consciousness of their guilt.62

Attorney Lien

To secure the payment of fees, lawyers may request a lien on a client's recovery in litigation. Must the client consent in writing to such a lien? In 2004, the supreme court concluded that the answer is yes. This is because the lien constitutes an adverse interest within the meaning of Rule 3-300, which states:

A member shall not enter into a business transaction with a client; or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied:

(A) The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and

(B) The client is advised in writing that the client may seek the advice of an independent lawyer of the client's choice and is given a reasonable opportunity to seek that advice; and

(C) The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition.

In Fletcher v. Davis,63 a lawyer and his corporate client (through the client's president) orally agreed at the commencement of an engagement that, in lieu of a retainer, the lawyer's hourly fees and costs would be secured by a lien on the proceeds of any judgment received on a conversion claim the lawyer was prosecuting on behalf of the client. The lawyer described the terms of the lien in a memorandum, which he sent to the corporate client's president for signature. The president, however, never signed the document. After many months of litigation, including a mistrial, the client discharged the lawyer--who was owed significant hourly fees--and replaced him with another. Thereafter, the client obtained a monetary judgment on the conversion claim. The client then paid nearly all the proceeds of the judgment to a different creditor and his current lawyer. The first lawyer received nothing.

The first lawyer sued the client, the client's new lawyer, and specified creditors of the client for violating the terms of his lien. The trial court sustained the defendants' demurrer and dismissed the action, but the court of appeal reversed. The supreme court, in turn, reversed the court of appeal's decision, concluding that the lawyer's lien was an adverse interest within the meaning of Rule 3-300.

The supreme court reasoned that an interest is adverse if it is reasonably foreseeable that the interest could become detrimental to the client.64 With a charging lien, a lawyer could impair the client's interests by detaining all or part of a recovery whenever a dispute arises over the lien's existence or scope. Moreover, because the first lawyer did not obtain the client's written consent to the lien, it was unenforceable. The court did not extend its ruling to contingency fees, however.

Confidentiality of Settlements

The Professional Responsibility and Ethics Committee of the Los Angeles County Bar Association, in its Formal Opinion No. 512, considered the propriety of confidential settlements that restrain not only the parties but also the lawyers from disclosing the fact and amount of a settlement. Except in situations involving employment agreements or retirement, Rule 1-500 of the Rules of Professional Conduct prohibits lawyers from entering into agreements that restrict the right of a member of the bar to practice law. The question presented in Formal Opinion No. 512 was whether a confidentiality clause that would prevent a lawyer from disclosing the fact and amount of the settlement to other clients--a clause that is acceptable to the lawyer's first client--would violate the rule. The opinion concluded it would not, explaining that an agreement that prohibits the disclosure of information about the settlement does not prevent the lawyer from using the information and, therefore, does not constitute a restriction on the right to practice law.65

New Exception to Duty of Confidentiality

The supreme court adopted a new rule of professional conduct, effective July 1, 2004, to mirror the legislature's amendment to the statutory duty of attorney confidentiality in Business and Professions Code Section 6068(e). The legislature amended Section 6068(e)(1), which provides that a lawyer must preserve the secrets of his or her client "at every peril to himself or herself," to permit a lawyer to disclose confidential information to prevent a criminal act that the lawyer reasonably believes is likely to result in death or substantial bodily harm.66 New Rule 3-100 restates the exception to the duty of confidentiality now found in Section 6068(e)(2) and the similar exception to the attorney-client privilege in Evidence Code Section 956.5. Neither the rule nor the statutes impose an affirmative obligation on the lawyer to reveal information, and the rule states that if the lawyer elects not to reveal the information, he or she does not violate the rule.67

Before revealing confidential information, the lawyer must, if reasonable under the circumstances, make a good faith effort to persuade the client or a third party not to commit the criminal act or to act so as to prevent the threatened death or injury. The lawyer also must inform the client of the lawyer's ability or decision to reveal the information, if the lawyer can reasonably do so.68 The reasonableness of the circumstances includes the risk of harm to the attorney or the attorney's family or associates.69 Among the factors to be considered by the lawyer when determining whether to disclose confidential information are the amount of time available to make a decision, whether the client or the third party has ever acted on threats in the past, whether the lawyer believes efforts to dissuade the potential criminal actor have been successful, and the client's rights under the U.S. and California Constitutions. The imminence of the harm may be considered, but the lawyer may reveal the information without waiting until just before the harm is likely to occur.70

Permitting the disclosure of confidential information to prevent death or serious bodily harm remains the only exception to California's strict duty of attorney-client confidentiality. Unlike the ABA Model Rules of Professional Conduct, there is no exception in the California Rules of Professional Conduct or the Business and Professions Code that would permit revealing confidential client information for the purpose of preventing financial harm or fraud.

Multijurisdictional Practice

The California Supreme Court adopted new California Rules of Court, effective November 15, 2004, permitting out-of-state lawyers to provide legal services in California. The new rules increase the scope of multijurisdictional practice by creating safe harbors for four categories of lawyers who are admitted to the bar in other states and who seek to practice law here in California:

1) Legal services attorneys providing services to indigent clients on an interim basis.71

2) In-house counsel providing out-of-court legal services exclusively for a single, full-time employer.72

3) Litigating lawyers providing legal services in anticipation of legal proceedings in California or as part of proceedings in another jurisdiction.73

4) Transactional and other nonlitigating lawyers providing services on a temporary and occasional basis.74

Legal services lawyers and in-house lawyers are required to register with the State Bar and meet all MCLE requirements within the first year of practice. Legal services lawyers must pass the California bar examination after three years if they wish to continue to practice in this state, but there is no limitation on the number of years that in-house counsel may register.75 The out-of-state nonlitigation lawyers must limit their advice to transactions in which a material aspect is taking place in a jurisdiction outside California and in which the lawyer is admitted, or to advice to California lawyers on an issue of federal law or the law of a jurisdiction other than California, or, if the lawyer is an employee of a client, to advice to the client or the client's subsidiaries or affiliates.76 Among other restrictions, the out-of-state litigator and nonlitigator must not establish or maintain a resident office or other systematic or continuous presence in California for the practice of law or regularly engage in substantial business or professional activities in the state.77 Information about the implementation of the new rules and applicable fees will be available on the State Bar's Web site.78

Meanwhile, in public hearings throughout the state, the State Bar's Commission for the Revision of the Rules of Professional Conduct continued its multiyear project of reviewing and rewriting California's ethics rules.79

 

 
 
1 Cheney v. United States Dist. Court for the Dist. of Columbia, 124 S. Ct. 1391 (2004) (memorandum opinion of Scalia, J.).
2 Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2650 (2004).
3 In re Aguilar, 34 Cal. 4th 386 (2004).
4 See Bus. & Prof. Code §§17203, 17204, 17535.
5 Farris v. Fireman's Fund Ins. Co., 119 Cal. App. 4th 671 (2004).
6 Brand v. 20th Century Ins. Co., 124 Cal. App. 4th 594 (2004).
7 Rule 3-310(E) provides: "A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment."
8 See, e.g., Farris, 119 Cal. App. 4th at 679.
9 Id. (quoting Jessen v. Hartford Cas. Ins. Co., 111 Cal. App. 4th 698, 712 (2003)).
10 Id. at 680-81.
11 Brand, 124 Cal. App. 4th at 607.
12 Farris, 119 Cal. App. 4th at 680.
13 North Pacifica, LLC v. City of Pacifica, 335 F. Supp. 2d 1045 (N.D. Cal. 2004).
14 Id. at 1050.
15 City of Santa Barbara v. Superior Court, 122 Cal. App. 4th 17 (2004).
16 Id. at 22.
17 See, e.g., Chambers v. Superior Court, 121 Cal. App. 3d 893 (1981).
18 City of Santa Barbara, 122 Cal. App. 4th at 24-25.
19 Id. at 24; see also City & County of S.F. v. Cobra Solutions, Inc., 119 Cal. App. 4th 304, review granted, ___ Cal. 4th ___, 96 P. 3d 1055 (Aug. 25, 2004) (another case involving supreme court review of ethical screening in a public law firm).
20 Derivi Constr. & Architecture, Inc. v. Wong, 118 Cal. App. 4th 1268 (2004).
21 Id. at 1273 (quoting Castro v. Los Angeles County Bd. of Supervisors, 232 Cal. App. 3d 1432, 1443 (1991)).
22 Id. at 1276.
23 Benasra v. Mitchell Silberburg & Knupp LLP, 123 Cal. App. 4th 1179 (2004), review denied, __ Cal.4th __, 2005 Cal. LEXIS 1718 (2005).
24 Code Civ. Proc. §425.16.
25 Benasra, 123 Cal. App. 4th at 1189.
26 Id. at 1188 (quoting American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton, 96 Cal. App. 4th 1017, 1040 (2002)).
27 Huskinson & Brown LLP v. Wolf, 32 Cal. 4th 453 (2004).
28 Chambers v. Kay, 29 Cal. 4th 142 (2002).
29 Mink v. Maccabee, 121 Cal. App. 4th 835 (2004).
30 Id. at 838.
31 McIntosh v. Mills, 121 Cal. App. 4th 333 (2004).
32 Nichols v. Keller, 15 Cal. App. 4th 1672 (1993).
33 Janik v. Rudy, Axelrod & Zieff, 119 Cal. App. 4th 930 (2004). See Brad W. Seiling, Class Wars, Los Angeles Lawyer, Apr. 2005, at 22.
34 Janik, 119 Cal. App. 4th at 940.
35 Id. at 946.
36 State Bar of Cal., Standing Comm. on Prof'l Responsibility & Conduct, Formal Op. No. 2004-166, at 5.
37 Id. at 5-6.
38 State Bar of Cal., Standing Comm. on Prof'l Responsibility & Ethics, Formal Op. 2004-167, at 2.
39 Id. at 3.
40 Id. at 4-5 (Truthful statements nevertheless may be found to violate Cal. R. of Prof'l Conduct R. 1-400.).
41 See, e.g., Biakanja v. Irving, 49 Cal. 2d 647 (1958) (execution of will not properly witnessed); Lucas v. Hamm, 56 Cal. 2d 583 (1961) (negligent preparation of will caused beneficiaries to lose testamentary rights); Heyer v. Flaig, 70 Cal. 2d 223 (1969) (failure to advise client-testator of potential testamentary claims by future spouse); Garcia v. Borelli, 129 Cal. App. 3d 24 (1982) (failure to advise client-testator of measures to ensure property would be distributed according to testator's intent); Bucquet v. Livingston, 57 Cal. App. 3d 914 (failure to advise trustors of potential tax consequences). But see Ventura County Humane Society v. Holloway, 40 Cal. App. 3th 897 (1974) (malpractice claim by class of potential charities for failure to properly name beneficiaries rejected); Radovich v. Locke-Paddon, 35 Cal. App. 4th 946 (1995) (malpractice claim by potential beneficiary identified in unsigned will rejected); Moore v. Anderson Zeigler Disharoon Gallagher & Gray, 109 Cal. App. 4th 1287 (2003) (malpractice claim based on lawyer's failure to ascertain client's testamentary capacity rejected).
42 See Roberts v. Ball, Hunt, Hart, Brown & Baerwitz, 57 Cal. App. 3d 104 (1976).
43 Courtney v. Waring, 191 Cal. App. 3d 1434 (1987).
44 Meighan v. Shore, 34 Cal. App. 4th 1025 (1995).
45 Osornio v. Weingarten, 124 Cal. App. 4th 304 (2004).
46 Biakanja, 49 Cal. 2d 647.
47 Lucas, 56 Cal. 2d 583.
48 Osornio, 124 Cal. App. 4th at 335.
49 Id.
50 Boranian v. Clark, 123 Cal. App. 4th 1012 (2004).
51 La Jolla Cove Motel & Hotel Apartments, Inc. v. Superior Court, 121 Cal. App. 4th 773 (2004).
52 Id. at 788.
53 Borissoff v. Taylor & Faust, 33 Cal. 4th 523 (2004).
54 Id. at 530.
55 Id. at 534.
56 In re Aguilar, 34 Cal. 4th 386 (2004).
57 Aguilar v. Lerner, 32 Cal. 4th 974 (2004).
58 In re Aguilar, 34 Cal. 4th at 394.
59 Id.
60 Tuttle v. Combined Ins. Co., 222 F.R.D. 424 (E.D. Cal. 2004).
61 Id. at 427.
62 Id. at 430, 432.
63 Fletcher v. Davis, 33 Cal. 4th 61 (2004).
64 Id. at 68.
65 Los Angeles County Bar Ass'n, Prof'l Responsibility & Ethics Comm., Formal Op. No. 512, at 6-7.
66 Business and Professions Code §6068(e)(2) states: "Notwithstanding paragraph (1) an attorney may, but is not required to, reveal confidential information relating to the representation of a client to the extent an attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual."
67 Cal. R. of Prof'l Conduct R. 3-100(B), (E); cmt. 5.
68 Cal. R. of Prof'l Conduct R. 3-100(C).
69 Cal. R. of Prof'l Conduct R. 3-100, cmt. 9.
70 Cal. R. of Prof'l Conduct R. 3-100, cmt. 6.
71 Cal. R. of Ct. 964.
72 Cal. R. of Ct. 965.
73 Cal. R. of Ct. 966.
74 Cal. R. of Ct. 967.
75 Cal. R. of Ct. 964, 965.
76 Cal. R. of Ct. 967.
77 Cal. R. of Ct. 966, 967.
78 See http://www.calbar.ca.gov.
79 The commission's schedule of public meetings and draft amendments to the Rules of Professional Conduct are available at http://www.calbar.ca.gov.

 
 
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