Square Peg in Round Hole? Application of Rule 3-310 to Public Attorneys
LACBA Update, March 2003

By Louisa Lau, member, LACBA Professional Responsibility & Ethics Committee. Lau practices civil litigation and is a senior staff counsel with State Compensation Insurance Fund. She is also a member of the California State Bar Committee on Professional Responsibility and Conduct. The opinions expressed are her own. The assistance of Ira Spiro, Esq. in the preparation of this article is gratefully acknowledged.

Business and Professions Code § 6077 provides that Rules of Professional Conduct are binding on all members of the state bar and does not state an exception for government attorneys. However, recently Carroll v. Sup. Ct. (2002) 101 CA 4th 1423 interpreted the concept of “potential conflict” under California Rules of Professional Conduct, Rule 3-310, to mean, at least in the dependency context, a “reasonable likelihood an actual conflict will arise.”

It tried to reconcile the importance of independent representation with the difficulty of not overburdening the dependency system unnecessarily with disqualifications. It vacated the trial court’s order denying the deputy public defender’s motion to withdraw as counsel for seven minors due to a conflict of interest. It recognized the tension that exists between Rule 3-310 and § 317(c) of the Welfare & Institutions Code. Rule 3-310(c) prohibits an attorney from accepting new representation of multiple clients when a potential conflict of interest exists among the clients and prohibits accepting or continuing representation of multiple clients when an actual conflict of interest exists. These prohibitions are excused if there is informed written consent of the clients, but that is a significant problem when the clients are minors. Section 317(c) prohibits representation of a minor in a dependency proceeding and another person or agency whose interests conflict with the minor’s.

Finding that it is impossible to determine on the appellate record whether there were actual conflicts of interest, the court remanded the matter to the trial court to determine whether each minor should have separate counsel or whether groups of minors can be properly represented by the same counsel. The court acknowledged this is not an easy task.

Another court, struggling to find a balance in the application of the Rules of Professional Conduct to public attorneys, expressed that it did “not mean to suggest that government attorneys must necessarily be treated identically with attorneys in private. . . . There is no doubt . . . that the Rules of Professional Conduct are drafted mostly from the perspective of private practitioners. . . . Because of the variety of situations and the organizational differences of public entities [courts] hesitate to define solutions for the difficult problem which is best deferred to the thoughtful judgment of public counsel on a case by case basis.” Civil Service Comm. of San Diego v. Sup. Ct. (1984) 163 CA 3d 70.

Younger v. Sup. Ct. (1978) 86 CA 3D 180, 204 vacated the trial court’s order recusing the entire prosecutorial office, commenting that if the office is recused, “the district attorney is prevented from carrying out the statutory duties of his elected office.” (See also People v. Muni. Ct.; Byars, et al. (1978) 77 CA 3d 294.)

Castro v. L.A. County Bd. of Sup. (1991) 232 CA 3d 1432 concluded that the nonprofit corporation created to provide legal services in dependency court representing multiple parties with potentially adverse interests did not create a conflict of interest within the corporation and among its attorneys. It contrasted the arrangement with representation of a private law firm: The attorneys there represent clients who cannot and do not pay for services rendered on their behalf. Hence, no clients become “more important” than other clients, and no attorney has any “obvious financial incentive” to favor one client over another. It is a creation of a public entity, it does not present itself to the public as a law firm, it has only one source of clients in a single kind of proceeding, and it does not solicit clients or accept referrals from the public. (See Castro, id.)

Conflict rules mainly deal with risk of unethical conduct; arguments about these rules often use words like “may,” “might,” and “could,” and phrases like “be tempted to” and “obviously.” Such words are highly elastic and might permit some variation in tolerance for risk of unethical conduct when measured against the social, professional, and monetary costs of disqualification of or forbidding a particular practice arrangement. Courts have allowed many arrangements that tolerate some risk because they also provide social or other benefits and because courts are prepared to believe that lawyers take their ethical responsibilities seriously. (See Castro, id.)

While it is true that Business and Professions Code § 6077 provides that Rules of Professional Conduct are binding on all members of the State Bar, in the application of the rules to public attorneys, courts sometimes fashioned exceptions for government attorneys. In this writer’s view, if courts take on the tasks of deciding whether conflicts are tolerable in a particular setting, results could differ from court to court that threaten uniformity of application. Besides, public attorneys’ duties are generally statutory and based on the organizational differences of public entities. If solutions to such difficult problems are “best deferred to the thoughtful judgment of public counsel on a case by case basis,” as stated in Civil Service Comm. of San Diego (supra), then perhaps Rule 3-310 should specifically provide an articulated exception.