Emergency Ethics: Lawyering Under Exigent Circumstances

By Andrew M. Vogel

Andrew M. Vogel is a deputy attorney general with the California Department of Justice and is a member of the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee. The opinions this article expresses are solely the author's.

Over time, lawyers often develop a set of routines to follow when taking on new clients: Run a conflict check. Prepare and have the client review and sign a written engagement agreement. Obtain and analyze pertinent client records. Secure the help of, or a referral to, another lawyer if he or she lacks competence to handle the matter. These intake tasks can take time.

But clients sometimes approach lawyers with time-sensitive emergency matters that might not allow the lawyer the luxury of ramping up in this manner. Consider, for example, a domestic violence victim who needs an immediate temporary restraining order to prevent physical harm; a businessperson seeking an expedited lawsuit and right to attach order against a partner to prevent a threatened misappropriation of irreplaceable assets; a potential plaintiff whose claim faces a nearly-expired statute of limitations; a potential criminal defendant facing imminent arrest. How do California's ethical rules facilitate lawyers serving the needs of such clients—and thus of the public—without the benefit of time to prepare? Lawyers can find some accommodations in the Rules of Professional Conduct[1] and the State Bar Act, which govern lawyer conduct and, where appropriate, discipline.

For example, the Rules require lawyers to deliver legal services competently, that is, using "the learning and skill" and "mental, emotional, and physical ability reasonably necessary for the performance of such service."[2] But the Rules make an allowance for emergency situations. Rule 1.1 provides that

[i]n an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required if referral to, or association or consultation with, another lawyer would be impractical. Assistance in an emergency must be limited to that reasonably necessary in the circumstances.[3]

This newly-adopted Rule represents a change from current Rule 3-110, which included a similar provision in a comment to the Rule but not in the body of the Rule itself.[4] That is relevant because while the comments serve "only to provide guidance for interpreting and practicing in compliance with the [R]ules,"[5] the Rules serve as the substantive guide for lawyer conduct and basis for discipline.[6]

The Rules similarly accommodate a lawyer's obligation to disclose his or her professional liability insurance coverage when handling a client's emergency matter. Rule 1.4.2 obligates a lawyer who knows or reasonably should know he or she does not have professional liability insurance to so inform the client at the time the client engages the lawyer.[7] However, this Rule, like its current analog Rule,[8] exempts from this obligation "a lawyer who is rendering legal services in an emergency to avoid foreseeable prejudice to the rights or interests of the client."[9]

What about conflict checks? Lawyers know that conflict checks serve as an essential step—before the client engages a lawyer—for trying to avoid representing adverse interests in violation of Rule 1.7 (and current Rule 3-310). Though the Rules do not explicitly codify a duty to conduct conflict checks, the California State Bar's Standing Committee on Professional Responsibility and Conduct (COPRAC) has opined that conflict checks are required before accepting a client.[10] But COPRAC's opinion also recognizes the practical challenge of running conflict checks in emergencies. Specifically, the opinion concludes that:

[i]f exigent circumstances prevent performing a conflict check, the attorney should accept representation contingent upon a subsequent conflict check revealing no conflicts, run a conflict check as soon as it is possible to do so and inform the attorney's new client that if a conflict arises, the attorney may be required to withdraw unless appropriate informed written consent is obtained.[11]

The State Bar Act imposes professional obligations on California lawyers in addition to those under the Rules[12] and similarly recognizes a situation where emergencies necessitate some leeway. Business and Professions Code section 6148 typically requires written engagement agreements in non-contingent fee cases in which the total expense to the client will foreseeably exceed $1,000. But this writing requirement expressly does not apply to "[s]ervices rendered in an emergency to avoid foreseeable prejudice to the rights or interests of the client …."[13] This accommodation may have particular relevance in civil rights cases and especially those that lawyers handle on a pro bono basis. The California Supreme Court has observed that such cases may involve emergencies that make it impractical to secure a carefully-prepared engagement agreement before rendering legal services.[14]

One might ask: what qualifies as an emergency? The California authorities cited here do not elaborate. The American Bar Association Model Rules of Professional Conduct do not do so either.[15] A comment to the Model Rule governing lawyer competence provides that a lawyer may advise or assist a client on a limited basis in a matter for which the lawyer lacks the otherwise requisite competence—without defining an "emergency."[16]

One other state, however, has done so. North Dakota's Rule of Professional Conduct governing lawyer competence includes a comment that mirrors California's and the ABA's concerning competence in an emergency. This comment then goes further by explaining:

The definition of an emergency depends upon all of the circumstances surrounding the request for advice or assistance and the lawyer's decision to accept representation. Relevant circumstances include, but are not limited to (a) the client's past relationship with the lawyer; (b) the practicality, considering the means of the client to refer to, consult with or associate with another lawyer; (c) the matter upon which advice is requested; (d) the time and location of the contact with the lawyer; (e) whether the lawyer has been asked to render immediate services; and (f) whether the lawyer reasonably determined that legal services were immediately required.[17]

This out-of-state rule of professional conduct obviously does not bind California lawyers, but it is informative.

California's Rules of Professional Conduct and State Bar Act do make clear that they only temporarily excuse lawyers practicing in emergencies from the requirements discussed above. California's Rule on competence requires that after delivering those services that an emergency makes immediately necessary, a lawyer who lacks the required competence must then do what the Rules otherwise require. The lawyer must develop sufficient competence or consult with or refer the matter to another lawyer who already has it—before further services become necessary.[18] Similarly, COPRAC Formal Opinion No. 2011-182 explicitly recognizes the need at the time of rendering emergency services to tell the client that an otherwise-required conflict check will follow, and to perform the conflict check before rendering further services. In like manner, though Rule 1.4.2 does not explicitly say so, it seems reasonably implied that once an emergency has passed (and with it the potential prejudice the client might suffer without legal assistance), a lawyer who lacks professional liability insurance should disclose that fact to the client before continuing the representation.

Lawyers who represent clients in need of emergency legal assistance deliver an important service, whose value the Rules recognize. Lawyers should not shy away from representing clients in emergency situations out of fear of running afoul of the Rules. A careful recognition of what the Rules allow in such situations and what they require afterward can help ensure that lawyers serve this public need while adhering to their ethical responsibilities

[1] This article discusses both the current Rules of Professional Conduct and the new Rules that the California Supreme Court approved on May 10, 2018. The new Rules go into effect on November 1, 2018. When citing these rules, this article will refer to them as the "Rules" and will distinguish the two sets of rules by their different numbering systems (Rules 1-100, et seq. for the current Rules, and Rule 1.0, et seq. for the newly-adopted Rules). This article focuses primarily on the latter, given their upcoming effective date. California law evaluates a lawyer's conduct against the Rules in effect at the time of that conduct. (Image Technical Services, Inc. v. Eastman Kodak Co., (N.D. Cal. 1993) 820 F.Supp. 1212, 1215, applying California law.)

[2] Rule 1.1(a), (b); accord, Rule 3-110(B).

[3] Rule 1.1(d).

[4] Rule 3-110.

[5] Rule 1.0(c); Rule 1-100(C); see also, In re Dale (2005) 4 Cal. State Bar Ct. Rptr. 798, 805, citing Rule 1-100(C).

[6] Id.

[7] Rule 1.4.2(a).

[8] Rule 3-410(A), (D).

[9] Rule 1.4.2(c)(3).

[10] Cal. Bar. Formal Opn. No. 2011-182.

[11] Id.

[12] Bus. & Prof. Code §§ 6000, et seq; see Rule 1.0(b)(2); Rule 1-100(A).

[13] Bus. & Prof. Code § 6148, subd. (d)(1).

[14] Flannery v. Prentice, (2001) 26 Cal.4th 572, 589-590, n. 17.

[15] Because California has not adopted the ABA Model Rules, they do not establish ethical standards for California lawyers. However, courts may consider them in the absence of direct or conflicting California authority. (State Compensation Ins. Fund v. WPS, Inc., (1999) 70 Cal.App.4th 644, 655-656).

[16] ABA Model Rules of Prof'l Conduct R. 1.1, Comment 3.

[17] https://www.ndcourts.gov/court/rules/Conduct/rule1.1.htm.

[18] Rule 1.1(c); accord, Rule 3-110(C).