Current and Timely Information and Analysis About
California Attorney Ethics in Practice

Can Advance Conflict Waivers Ever Be Informed Consent?

Recent examples in California courts have demonstrated the limits of advance conflict waivers and the effects of these limits.  Needless to say, finding out that an advance conflict waiver is not effective to resolve a conflict can come as a shock, because it generally happens after-the-fact. Recent cases suggest that attorneys and firms who use advance conflict waivers should go back to the drawing board to evaluate how they are used and, more importantly, what they can accomplish and what they cannot.

Start at the beginning. California Rules of Professional Conduct Rule 3-310(C) provides that attorneys cannot represent clients with conflicting or potentially conflicting interests “without the informed written consent of each client.” Rule 3-310(A)(2) provides that “‘Informed written consent’ means the client’s or former client’s written agreement to the representation following written disclosure.”  In general terms, an advance conflict waiver is a provision in an attorney-client fee agreement that notifies the client of the potential for conflicts and ostensibly gets the client to waive those potential conflicts in advance. But waiving potential conflicts in advance is the trick. Before a conflict arises, how can you adequately describe the circumstances of the conflict to a client so that the client can give informed consent? The answer is fairly straightforward: you can’t. This does not mean that advance conflict waivers are worthless, however.More

Is the Arbitration Provision in Your Firm’s Fee Agreement Properly Drafted?

Some recent California cases have illustrated the importance of a properly drafted arbitration provision in attorney-client fee agreements, and what is at stake. Typically, arbitration is vastly superior to litigation for law firms to resolve disputes with clients related to representation, including fee disputes. Arbitration is confidential, generally has limited discovery and streamlined procedures, and can lead to a swifter resolution of what are sure to be ugly issues. But if your arbitration provision is not properly drafted, it may not be worth much when you need it. Some minor revisions to your fee agreement may mean the difference between arbitrating and litigating disputes with clients. More

Connect with Caution: Don’t Let Social Media Indirectly Compromise Client Confidentiality

We frequently repeat the refrain that client confidentiality in California is not a gray area: you must keep client information confidential.  Most attorneys (hopefully) by now know not to divulge confidential client information on social media.  Some attorneys have learned the hard way that casual comments about clients or client matters on social media is perilous.  But attorneys must also focus on the potential to reveal confidential client information indirectly on social media.  You may be revealing a lot on social media even though you aren’t posting directly about clients or client matters.  How so?More

Mistakes were Made? Learn from the Post-Mortem Analysis

Assume that your firm has made a mistake that led to an ethical lapse: a conflict of interest with no informed consent, or a similar misstep.  Once the actual fallout from the situation subsides, from a compliance perspective the relevant question is whether you can learn from these circumstances and avoid similar issues.  For any law firm in similar situations (and there are many, since California law firms deal with similar issues nearly every day) if it appears that your firm may have made mistakes that led to ethical lapses, once you move beyond the paranoia and anxiety phase it is critical to conduct a thorough and objective post-mortem analysis to prevent similar occurrences in the future.  To do this, you must ask, and answer, some potentially difficult questions.More

Should Non-Attorneys Be Permitted to Practice (Some) Law?

Attorneys and bar associations nationwide are grappling with a few hard truths about the current practice of law.  The legal profession is a highly regulated profession, including strict requirements for any person to be authorized to practice law.  Among other things, you have to go to law school (mostly) and take and pass the bar exam for any particular jurisdiction, or otherwise be admitted after a detailed moral and character review.  This regulation is designed in part to ensure that the public is protected from unscrupulous counsel, who could prey on the most vulnerable among us at the times they are most vulnerable.  Unfortunately, this high level of attorney regulation also may have the effect of limiting meaningful access to lawyers for a vast swath of the public who could benefit from counsel.  Is the high level of regulation for attorneys, intended to protect the general public, appropriate if it means that the vast majority of the general public could never afford a lawyer?More