October 2016 | Earn one hour of MCLE Credit in Legal Ethics
By Joel A. Osman
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How many attorneys, after passing the Multistate Professional Responsibility Examination portion of the bar exam, give little thought to legal ethics? Alarmingly, I’m afraid the answer is far too many.
While the general public gives little thought to legal ethics and has little notion of what legal ethics require, that’s no excuse for attorneys to ignore these rules. If we are going to improve the standing of the profession in the eyes of society and serve our clients well, we must do better. This article is for those who don’t consider themselves legal ethicists to brush up on the basics.
California is singularly unique among the 50 states: Its ethics
rules are not modeled on the ABA Model Rules of Professional Conduct, although
certainly there are similarities between the Model Rules and California’s Rules
of Professional Conduct are “intended to regulate professional conduct of
members of the State Bar through discipline. They have been adopted … to
protect the public and to promote respect and confidence in the legal
profession.” But the Rules of Professional Conduct are not exclusive. Members
of the bar are also bound by applicable law, including the State Bar Act
(Business & professions Code §6000 et seq.) and opinions of California
courts. Per the Rules
of Professional Conduct, members should also consult opinions of ethics
committees in California for guidance on proper professional conduct, although they
are not binding.
In addition to its role enforcing the Rules of Professional
Conduct, the State Bar provides various resources and sponsors activities
designed to increase awareness of the Rules of Professional Conduct both within
and outside the profession. The Committee on
Professional Responsibility and Conduct (COPRAC) is a standing committee of
the State Bar Board of Trustees. The committee’s primary charge is the
development and issuance of advisory ethics opinions to assist attorneys in
understanding the professional responsibilities under the Rules of Professional
Conduct. COPRAC also does outreach to the profession by providing speakers to
various bar organizations on legal ethics, providing Minimum Continuing Legal
Education (MCLE) training and publishing monthly articles on legal ethics such
as this one.
A key purpose of this outreach effort is to persuade members of
the bar that ethics is not a one-and-done activity which ends on admission.
Members of the bar should consider ethics an ongoing, everyday factor in their
practice. Viewed from this perspective, the Rules of Professional Conduct are
not a list of disciplinary no-no’s – they become instead an indispensable “how-to”
manual for doing our jobs right and possibly, as a byproduct of doing this, improving the general public’s perception of our profession.
To illustrate this consider the following hypothetical. Keep in
mind this hypothetical is a hyperbole intended to illustrate the number of
ethical rules involved in the daily decisions of a typical attorney. It is an
extreme example for illustrative purposes only. It is not intended nor is it
recommended as a course of conduct that anybody should follow. The reason for
this should be obvious when you look up the many rules implicated in this hypothetical.
A potential client walks into Lawyer
A’s office seeking to engage his services. The client explains that she is involved in
a long-running, very acrimonious dispute with her next-door neighbor which she
wants to take to the next level based upon her belief that the neighbors’ fence
encroaches on her property.
describing this dispute, the client reveals to Lawyer A that her acrimonious
relationship with the neighbor is based in part on her feelings regarding the
neighbors’ ethnicity. She wants Lawyer A to litigate her property line dispute
and specifically instructs Lawyer A to do so in a way which inflicts the
maximum possible vexation and annoyance upon her hated neighbor. Lawyer A has never
done a property dispute case. Lawyer A doesn’t tell the potential client this.
Instead Lawyer A accepts the engagement and tells the client that he’ll have
his “associate” get right on it. Lawyer A does not inform the client that the associate
is serving a six-month suspension of his law license. The client hands Lawyer A
her $25,000 “retainer” check and walks out the door. Lawyer A deposits the check in the office operating account.
The first thing the associate does is
to have the client’s property lines surveyed. Rather than front the cost of the
property survey, the associate offers the surveyor a percentage of the fees to
be earned in the prosecution of this case. The survey reveals that the neighbor’s
fence does not encroach on the client’s property. Lawyer A promptly reports
this fact to the client, who instructs Lawyer A to proceed anyway. Lawyer A
decides that pursuing a nonmeritorious case is not for him and tells the client that he
is withdrawing from the representation. But in an act of charity, he refers the
client to a law school classmate who is desperate for business. The client hires
the classmate and instructs Lawyer A to send her file to the new lawyer. Lawyer
A does, but does not include the property line survey in the material, which could
blow the client’s case out of the water. The classmate proceeds with the property line dispute on behalf of the client.
How many different ethics rules are involved in the
hypothetical above? Let’s count them down:
Obviously, this hypothetical
situation is an exercise in hyperbole. It does, however, clearly demonstrate
the central point that ethics are not just for ethicists. They are, of
necessity, a central part of every lawyer’s day-to-day practice. Lawyers who
fail to conduct themselves accordingly not only put themselves at risk but also
perpetuate the negative reputation of our profession as a whole.
Joel A. Osman is senior counsel at
Parker Mills, concentrating on litigation and trials, and a member of the State
Bar Committee on Professional Responsibility and Conduct. Views expressed are
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