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

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

Advance Conflict Waivers, Arbitration–and Fees–Tossed for Conflicts

The recent Second District Court of Appeal opinion in Sheppard, Mullin, Richter & Hampton, LLP v J-M Manufacturing Co., Inc. sent a shock wave through California law firms.  The case started when a firm sued a former client for $1.3 million in unpaid fees, after it had been disqualified from a matter for that client because of conflicts.  The case ended (at least for now) with an order from the Court of Appeal that rejected the firm’s advance conflict waivers and neutered the arbitration provision in its fee agreement.  Instead of collecting an additional $1.3 million in fees, the firm has to refund nearly all of the $3.8 million in fees it collected for the underlying matter.  Among other things, the case illustrates the limited application of advance conflict waivers and what happens when they are not effective to prevent or to cure conflicts.  It also may portend a much more difficult landscape for analyzing conflicts of interest, and what is now at stake if that analysis turns out to be incorrect.More

5 Legal Ethics Questions for Your In-House Legal Team

There is an emerging consensus that the role of in-house legal departments is changing dramatically, and these changes raise significant legal ethics issues for in-house legal teams.  The workload for in-house lawyers, which has been substantial for some time, is increasing in many industries, as in-house lawyers navigate significant increases in regulatory issues and compliance.  And the composition of work handled by in-house lawyers is changing: a significant amount substantive work that was previously referred to outside counsel is now being handled internally in corporate legal departments by in-house lawyers.  These changes are likely to continue, and to accelerate, because in-house lawyers are more cost-effective for certain matters, more closely connected to the legal issues and principals at the company, and more immersed in the details of the subject businesses.  But as the role of in-house attorneys continues to evolve, it is critical to consider the legal ethics implications for the attorneys on your in-house legal team.More

Negotiating for Your Clients: How Far is Too Far?

California attorneys have a well-established duty to be zealous advocates for their clients’ interests.  But the boundaries for that zealous advocacy are not always clear. The California Rules of Professional Conduct do not contain a rule analogous to ABA Model Rule 4.1 and related comments, addressing the boundaries of acceptable puffery, which is ok, and false representations of material fact, which (surprise!) are not.  Formal Opinion No. 2015-014 from California’s Standing Committee on Professional Responsibility and Conduct appears intended to fill this gap, and more clearly to define the boundary between zealous advocacy and, well, lying.  In general, the analysis mirrors 4.1, so puffery and posturing is permissible, but false statements of fact, or implicit misrepresentations of material facts, are not.  The opinion details five examples to illustrate this distinction.More