Attorney Ethics Counsel

December 27, 2021

California Ethics Opinions of 2021

With the new year quickly approaching, there is no better time than now for lawyers to take stock of their ethical obligations in order to minimize any risks of liability in the new year.  A review of the ethics opinions published in California over this last year is a great place to start.  Although ethics opinions are advisory only and are not binding upon the courts or the State Bar of California, they provide useful guidance based on California’s applicable statutes, rules, and case law.  Summaries of each of the 2021 opinions are included below.  Lawyers are encouraged to independently review these opinions in detail, and consult with an ethics lawyer as needed, in order to effectively evaluate risks and before taking any action on behalf of yourself and/or your law firm.  After all, it is important to keep in mind that a lawyer in a supervisory or management position could be held vicariously responsible for another lawyer’s ethical violation under California Rules of Professional Conduct (CRPC) Rule 5.1.

Remote Practice – BASF Opinion 2021-1 (August 2021)  

Remote practice has become a hot topic across the country as a result of the Covid-19 pandemic.  Some jurisdictions have eased restrictions around lawyers working where they’re not licensed during the pandemic.  See, i.e. D.C. Ethics Opinion 24-20 (March 23, 2020).  Arizona, Minnesota, North Carolina, New Hampshire and Ohio have updated their rules to provide specific permissions for remote practice by out-of-state licensed lawyers.  See Ariz. R. Prof’l Conduct 5.5(d); Minnesota R. Prof’l Conduct 5.5(d); N.H.R. Prof’l Conduct 5.5(d)(3); N.C. R. Prof’l Conduct 5.5(d); and Ohio R. Prof’l Conduct 5.5(d)(4).  Michigan and New York presently have similar rule amendments being considered for adoption. See MI Proposed Amendment to MRPC 5.5 (April 24, 2021); Proposed Amendments to NY Court of Appeals Part 523 (November 5, 2021).  A flurry of ethics opinions from around the country have also addressed this issue. See ABA Formal Opinion 495 (2020); FL Opinion 2019-4 (May 20, 2021); Pennsylvania & Philadelphia Bar Assocs. Joint Formal Op. 2021-100 (March 2, 2021); Utah Ethics Advisory Committee Opinion No. 19-03 (May 14, 2019); and NJ Joint Opinion 742 (10/6/21).

This summer, the Bar Association of San Francisco published the only California opinion that exists on this topic.  Based on a detailed analysis of California’s applicable rules (See CRPC Rule 5.5 and California Rules of Court (CRC) Rule 9.40-9.49.1), statutes (Business & Professions (B&P) Code sections 6125-6133), and case law (Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal. 4th 119 and Estate of Condon (1998) 65 Cal.App.4th 1138), it advises that a lawyer who is not licensed in California, but merely physically present here while using technology to remotely practice law in compliance with the rules of the jurisdiction where the lawyer is licensed, should not be held in violation of California’s UPL rules and laws so long as the lawyer does not advertise or otherwise hold out as a licensed California lawyer, does not establish an office or other systematic or continuous presence for the practice of law in California, and does not represent a California person or entity.  However, if such a lawyer represents a California client, an assessment of liability will depend on the nature of the representation, whether the representation complies with the regulations of the jurisdiction where the lawyer is licensed, the role of other California lawyers in the representation, and other factors relevant to the protection of the client.  BASF’s opinion further advises that California-licensed lawyers sitting in a jurisdiction where they are not licensed must adhere to the rules of that jurisdiction.  Failure to do so could be found to violate CRPC Rule 5.5(a).

 Lawyer & Client Impairment – CAL 2021-207: Client with Diminished Capacity & CAL 2021-206: Colleague Impairment

The State Bar of California’s Committee on Professional Responsibility & Conduct (COPRAC) issued two ethics opinions this year focused on the issue of competence in an attorney-client relationship.  One addresses a lawyer’s mental impairments that impede a lawyer’s fitness to engage in the practice of law competently and diligently.  The other opinion concentrates on the ethical obligations of a lawyer when a client suffers from diminished capacity.

COPRAC’s opinion on colleague impairment advises that a lawyer’s impairment does not excuse that lawyer’s compliance with the rules of professional conduct and the State Bar Act.  Importantly, an impaired lawyer’s conduct can also trigger obligations for the impaired lawyer’s subordinates, supervisors, and other colleagues who know of the impaired lawyer’s conduct. The ethical obligations of an impaired lawyer’s colleagues may include, but are not limited to, communicating significant developments related to the lawyer’s conduct to the client and promptly taking reasonable remedial action to prevent or mitigate any adverse consequences resulting from an impaired lawyer’s actions.  However, each lawyer’s action will ultimately depend on the nature of the client’s representation, the severity of the impaired lawyer’s unethical conduct, whether the client has been harmed or will be harmed by the impaired lawyer’s conduct, the nature of the lawyer’s impairment, the size of the law firm and the resources available, and each lawyer’s position within the firm.

COPRAC’s opinion concerning a client with diminished capacity advises that a lawyer’s ethical obligations to such a client, including the duties of competence, communication, loyalty, and nondiscrimination, do not change, but that the client’s diminished capacity may require the lawyer to change how the lawyer goes about fulfilling them.  A lawyer representing a competent client may propose that the client give advanced consent to protective disclosure in the event that the client later becomes incapacitated and that incapacity exposes the client to harm. However, if that has not or cannot be accomplished prior to a client’s incapacitation, the opinion recommends that a lawyer may still seek the client’s informed consent to take protective measures when the lawyer reasonably believes that the client’s diminished capacity exposes the client to harm. If appropriately limited and informed, consent from a client with diminished capacity is ethically proper.  If possible, the lawyer should attempt to preserve a normal attorney-client relationship with such a client, including that the client makes decisions normally reserved to the client.  However, the opinion recognizes that a lawyer must sometimes make difficult judgments relating to the client’s capacity provided that such judgments are informed and disinterested. Significantly, the opinion advises that a lawyer should not be viewed as having acted unethically simply because in hindsight those judgments are later determined to have been mistaken.

Duties to Prospective Client – CAL 2021-205: Duties to Prospective Client

 The third opinion issued by the State Bar in 2021 addresses a lawyer’s duties to prospective clients.  The opinion focuses on issues that could arise when an interviewing lawyer receives confidential information from a prospective client. In sum, the opinion advises that “when a person is a prospective client within the meaning of CRPC Rule 1.18(a), the interviewing lawyer owes the prospective client the same duty of confidentiality owed to an existing or former client pursuant to CRPC Rules 1.6 and 1.9 even though no lawyer-client relationship thereafter ensues.”  Therefore, the lawyer may not use or disclose confidential information learned from the prospective client without the prospective client’s informed written consent. This is true even if the information would be material to the representation of an existing client of the lawyer or the lawyer’s law firm because the duty of confidentiality to the prospective client outweighs the duty to inform the current client.

The opinion further addresses that absent informed written consent from the prospective client, the interviewing lawyer is prohibited from accepting representation materially adverse to the prospective client in the same or a substantially related matter, which is imputed to other members of the law firm unless the interviewing lawyer took reasonable measures to obtain only information that was reasonably necessary to determine whether to represent the prospective client and the law firm promptly undertook screening and other measures as specified in CRPC Rule 1.18(d)(2). Finally, although the opinion advises that a prospective client may give advance informed written consent for a law firm to act adversely to the prospective client in the same matter or substantially related matters, the opinion should be reviewed for specific guidance in order to effectively manage any risk of liability.

Ethical Screens – CLA Ethics Committee Formal Opinion No. 2021-1 (February 11, 2021)

On February 11, 2021, the ethics committee of the California Lawyers’ Association published its opinion on the elements of an effective screen in compliance with the rules of professional conduct.  The opinion advises that are four required elements of an effective screen: (1) timely imposition of the screen, (2) prohibitions of communications across the screen, (3) no fee-sharing with prohibited persons, and (4) notice to affected clients.  Other factors mentioned that are not required, but may be considered, when evaluating the efficacy of a screen include, “the physical and operational separation of those on each side of the screen, limitation of prohibited individuals’ access to the screened matter’s file, the communication employed within the firm regarding its terms, negative internal consequences for violations of the terms, and the monitoring of the screen.” The opinion makes clear that it did not opine on the circumstances under which conflicts may be addressed through an ethical screen where a waiver is obtained.

Joining a Lawyer Networking Group – SDCBA Ethics Opinion dated January 14, 2021

In the wake of the LegalMatch Case (Jackson v. (2019) 42 Cal.App.5th 760, 773 [rev. denied, Jackson v., 2020 Cal. LEXIS 1699 (Mar. 11, 2020)), the San Diego County Bar Association published an ethics opinion in early 2021 addressing under what circumstances a lawyer may join a networking group that is not registered with the State Bar of California as a licensed attorney referral service.  The opinion advised that a California lawyer may not be a member of a networking group if it: “(1) limits the number of lawyer members; (2) prohibits membership in other networking groups; and (3) places pressure on non-lawyer members to make a minimum number of referrals to other members of the group.” However, it advises that “a lawyer may join a networking group that does not promise referrals as a benefit of membership; does not limit the number of lawyer members; and does not pressure members to provide referrals to one another—provided the lawyer follows other Rules of Professional Conduct, including rules 5.4(e) and 7.2(b).”

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