Where to Turn with Questions on Legal Ethics
LACBA Update, May 2013
By Joan Mack, shareholder, Caldwell Leslie & Proctor, PC, and chair, LACBA Professional Responsibility and Ethics Committee. She can be reached at firstname.lastname@example.org. The opinions expressed are her own.
California attorneys regularly face questions of legal ethics arising from conflicts of interest with current or former clients, issues of confidentiality and attorney-client privilege, discovery obligations, and communication of significant facts and developments to clients. The consequences of violating ethics rules can be severe, including discipline by the State Bar, disqualification, civil liability, money sanctions, and fee forfeiture. So where can attorneys turn with questions about legal ethics?
California attorneys should look first to the California Rules of Professional Conduct, the comments contained in the Discussions of the Rules, and the State Bar Act, Business & Professions Code Section 6000 et seq. The comments to Rule 1-100 also state that “opinions of ethics committees in California should be consulted by members [of the California bar] for guidance on professional conduct.”
There are ethics committees throughout the state that publish ethics opinions, and the State Bar of California Committee on Professional Responsibility and Conduct (often referred to as COPRAC) regularly publishes opinions in response to inquiries from members.1 One of the largest, oldest, and most prolific ethics committees, however, is the Los Angeles County Bar Association’s Professional Responsibility and Ethics Committee (PREC), which has been providing guidance and practical advice to LACBA members for more than 95 years. During that time, the committee has published more than 500 ethics opinions.
In its most recent opinion, Formal Opinion No. 525, the committee addressed the question of how an attorney can respond to false and negative comments about the attorney posted on a blog by a former client.2
The committee consists of LACBA members, some of whom have served on the committee for decades and others who have joined recently. Its strength stems from its core of dedicated long-term members. Collectively, its 40 members have more than 350 years of experience on the committee.
PREC is a large committee, and its membership is highly diverse, with members from many different areas of legal practice including civil litigators, criminal litigators, immigration lawyers, mediators, lawyers from the State Bar, and lawyers from public interest groups. Its membership is representative of large and small law firms, solo practitioners, and government attorneys.
PREC’s primary purpose is to provide ethics opinions regarding matters of general concern to LACBA members on questions concerning lawyers’ ethical duties and professional responsibilities, and to respond to inquiries from LACBA members regarding such matters. The formal opinions published by PREC are advisory only and not binding on any court or the State Bar. (Rule 1-100, Rules of Professional Conduct). As mentioned above, however, the comments to Rule 1-100 also state that: “opinions of ethics committees in California should be consulted by members [of the California bar] for guidance on professional conduct.” In addition, the courts consider published ethics opinions and often follow them.
For example, in interpreting Rule 3-300, the courts in both Shopoff v. Hyon, 167 Cal. App. 4th 1489 (2008) and Fletcher v. Davis, 33 Cal. 4th 61 (2004) took note of an opinion of the Los Angeles County Bar Association, suggesting that Rule 3–300 did not apply to a contingent fee arrangement coupled with a lien on the client’s prospective recovery in the same matter. See L.A. County Bar Ass'n, Prof'l Responsibility & Ethics Comm., Formal Op. No. 496 (Nov. 16, 1998). More recently, the court of appeal in Plummer v. Day/Eisenberg, LLP, 184 Cal. App. 4th 38 (2010) answered the question left open in Shopoff and Fletcher, holding that “‘[t]he inclusion of a charging lien in the initial contingency fee agreement does not create an “adverse interest” to the client within the meaning of rule 3-300.’” Plummer v. Day/Eisenberg, LLP at 48-49, (relying upon State Bar Standing Comm. on Prof'l Responsibility & Conduct, Formal Op. No. 2006–170, p. 7).
Another example is PREC’s Formal Opinion No. 519, which addressed whether there is a self-defense exception to the attorney-client privilege to permit the attorney to defend against third-party claims. The opinion concludes that there is no such exception under California law but notes that several federal district and appellate courts have acknowledged a self-defense exception. This tension between California law and federal law played out in the matter of Qualcomm Inc. v. Broadcom Corporation, 548 F. 3d 1004 (Fed. Cir. 2008), where the magistrate rejected the self-defense exception for the attorneys defending against an order to show cause re sanctions for alleged discovery abuses. However, after the corporation criticized counsel’s services and advice, the district court found that the attorneys were not prevented from defending their conduct by the attorney-client privilege and remanded to the magistrate. On the other hand, in McDermott Will & Emory v. Superior Court, 83 Cal. App. 4th 378 (2000), the California Court of Appeal expressly rejected the application of the federal authorities on the grounds that the strict principles set forth in the California Evidence Code preclude any judicially created exceptions to the attorney-client privilege. Id. at 385.
PREC’s ethics opinions can be found on LACBA’s Web site at https://www.lacba.org/resources/tools-documents/ethics-opinions.
The committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to: Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at email@example.com.
PREC also sponsors, and assists other LACBA committees in providing programs on professional responsibility and ethics for continuing legal education. Each December or January (just in time for the MCLE reporting deadline), PREC members present a four-hour LACBA MCLE program addressing topical ethical issues. PREC members also are available to provide an ethics portion to MCLE programs offered by other groups.
1 See http://ethics.calbar.ca.gov/Ethics/Opinions.aspx.
2 See Los Angeles County Bar Association Formal Opinion 525 at http://www.lacba.org/docs/default-source/ethics-opinions/archived-ethics-opinions/ethics-opinion-525.pdf.
LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at firstname.lastname@example.org.