Below are links to the full text of selected ethics opinions issued by the State Bar of California Standing Committee on Professional Responsibility and Conduct ("COPRAC"). These are advisory opinions regarding the ethical propriety of hypothetical attorney conduct. Although advisory opinions are not binding, Rule 1-100 of the Rules of Professional Conduct encourages lawyers to consult advisory opinions for guidance. Advisory opinions also have been cited by California courts in analyzing professional responsibility issues. A full list of ethics opinions can be found at: http://ethics.calbar.ca.gov/Ethics/Opinions.aspx.
The ethics opinions provided below have been selected because they address issues that may be of interest to senior lawyers, however, the specific hypotheticals posed in the opinions do not refer to "senior" lawyers.
Selected California Ethics Opinions
- CAL 1975-36 Ethical responsibilities involved in preserving the identity of trust account funds.
- CAL 1979-50 What ethical obligations exist when client confidences may be disclosed or are disclosed by a secretary/nonattorney employee?
- CAL 1983-70 Where an attorney has agreed to participate in a lawyer referral service under a written contract which obligates the attorney to return to the service ten percent of all fees collected over $300 minimum, may the attorney ethically raise fees to "cover" the percentage paid to the service?
- CAL 1985-86 What are the ethical requirements and proscriptions relating to contacts with clients when private law firms dissolve or when one or more attorneys withdraw?
- CAL 1986-90 (1) May a law office comprised of separate sole practitioners who share office space and overhead expenses but who are neither partners nor incorporated hold themselves out as a single entity without identifying themselves as individual practitioners? (2) May a former partner's name be continued as part of the firm name, with the former partner's consent?
- CAL 1988-97 May an attorney have a lay signatory on the client trust account?
- CAL 1989-112 May an attorney institute conservatorship proceedings on a client's behalf, without the client's consent, where the attorney has concluded the client is incompetent to act in his best interest?
- CAL 1989-113 Is it ethically permissible for an attorney to undertake a representation adverse to a wholly-owned subsidiary of an existing corporate client?
- CAL 1989-115 Is it ethically proper for an attorney to require a potential client to execute a blanket waiver of the client's right to disqualify the attorney in any other matter, based on a breach of the attorney's duty to maintain confidences and/or to avoid conflicts of interest?
- CAL 1993-129 (1) May multiple "principal" law firms designate the same independent attorney or law firm as "of counsel" in their solicitations, including stationery and similar public announcements. (2) Absent written client waivers, may a principal law firm and its independent "of counsel" attorneys represent adverse or potentially adverse interests.
- CAL 1993-132 While Attorney serves as a director of a corporation ("Corporation"), Client approaches Attorney with a proposal for a transaction with Corporation. Client wants to present the proposal to Corporation and asks the attorney to represent it in connection with structuring the proposal and negotiating and drafting an agreement between Client and Corporation. Corporation is regularly represented by other counsel in connection with such transactions. What ethical considerations must Attorney address as she decides whether she can or should accept representation of Client?
- CAL 1995-141 What are a lawyer's ethical responsibilities when rendering non-legal services to a client that are either (1) performed by the lawyer outside the scope of the lawyer's legal representation of the client, or (2) performed in connection with a lawyer or law firm's representation of the client or otherwise by someone employed by the lawyer or an entity owned in whole or in part by the lawyer?
- CAL 1997-150 What ethical issues arise when attorneys enter into arrangements to share office space or services, such as reception and library facilities, maintenance staff, secretarial staff, or paralegal staff, without forming a law firm?
- CAL 1998-152 When a member of the California State Bar undertakes representation of a new client in a matter which is adverse to a former client of the member's law firm, must the member obtain the former client's informed written consent before accepting the new representation?
- CAL 1999-154 (1) To what extent do the California Rules of Professional Conduct apply to a member who is performing, or represents and markets herself as able to perform, both legal and non-legal professional services for a client at the same time? (2) Does rule 1-400 of the California Rules of Professional Conduct apply to a member's use of her qualifications as a lawyer in marketing a purely non-legal service? (3) What rules apply when, as part of a member's investment advisory services involving both legal and non-legal advice, the member refers clients to a portfolio manager, who then pays the member a percentage of the compensation received for managing the portfolio?
- CAL 2001-155 What aspects of professional responsibility and conduct must an attorney consider when providing an Internet web site containing information for the public about her availability for professional employment?
- CAL 2001-157 What ethical duties does an attorney have regarding the retention of former clients' files? Is the attorney ethically required to retain the files for any specific length of time following the completion of representation?
- CAL 2003-161 Under what circumstances may a communication in a non-office setting by a person seeking legal services or advice from an attorney be entitled to protection as confidential client information when the attorney accepts no engagement, expresses no agreement as to confidentiality, and assumes no responsibility over any matter?
- CAL 2007-172 (1) May an attorney ethically accept payment of earned fees from a client by credit card? (2) May an attorney ethically accept payment of fees not yet earned from a client by credit card? (3) May an attorney ethically accept payment of advances for costs and expenses from a client by credit card?
- CAL 2007-173 (1) May an attorney, consistent with ethical obligations, deposit a client’s will or other testamentary documents with a private will depository, without the client’s consent? (2) May an attorney, consistent with ethical obligations, register a client’s will or other testamentary documents with a private will registry, without the client’s consent?
- CAL 2007-174 Is an attorney ethically obligated, upon termination of employment, promptly to release to a client, at the client’s request, (1) an electronic version of e-mail correspondence, (2) an electronic version of the pleadings, (3) an electronic version of discovery requests and responses, (4) an electronic deposition and exhibit database, and/or (5) an electronic version of transactional documents?
- CAL 2009-178 Is it ethically proper for an attorney who is settling a fee dispute with a client to include a general release and a Civil Code section 1542 waiver in the settlement agreement? Does the existence of a legal malpractice claim against the attorney alter the ethical propriety of including a general release and section 1542 waiver in the settlement agreement?
- CAL 2010-179 Does an Attorney violate the duties of confidentiality and competence he or she owes to a client by using technology to transmit or store confidential client information when the technology may be suceptible to unauthorized access by third parties?
- CAL 2012-183 May an attorney disclose client confidences to her own attorney to evaluate a wrongful discharge action against her former firm and, in pursuing her claim, may she or her attorney publicly disclose those client confidences?
- CAL 2014-190 Upon the dissolution of a law firm, what duties does an attorney affiliated with the firm owe to a client on whose behalf he or she provided legal services if the attorney no longer will be representing the client following the dissolution? How does the fulfillment of those duties differ if the attorney had no connection with or knowledge of the client prior to dissolution of the firm? Do the steps an attorney may be required to take depend on the nature of the attorney’s position with the firm?
Local County Bar Association Ethics Opinions
- LA 248 (1958) Partnership Name. A local law firm continuing the name of a deceased partner in the firm name may add to the firm name the name of a member of the firm who was a partner of the deceased.
LA 265 (1959) Partnership Name. Neither of two sole surviving law partners has the right to use a former firm name which included the name of a deceased partner over the objection of the other surviving partner.
LA 348 (1975) Attorney and Client - Disabled Attorney - Duty to Client. The duty of an associate of an attorney under a disability, is to advise the attorney's clients in writing of such disability and of their right to select other counsel; in the event a client's matter requires immediate attention the associate should take such action as may be required to preserve the client's rights.
LA 383 (1979) Attorney and Client - Incompetent Attorney - Duty to Client - Conflicting Interests. Every attorney, including an associate in a legal partnership, must exercise his professional judgment in the best interest of his clients and must take steps which are necessary to assure competent representation for his client or withdraw from the case.
LA 420 (1983) Attorney and Client: Criminal Files - Duty to Retain. In the absence of written instruction by the client, the client's file relating to a criminal matter in the possession of an attorney should be retained by the attorney and not destroyed.
LA 421 (1983) Letterheads, Of Counsel. The name of a firm appearing on its letterhead should not include the name of an attorney who has never been a partner and is merely "of counsel" to the firm.
LA 460 (1990) Restrictive Retirement Payments. A partnership agreement does not violate the provisions of Rule 1-500, California Rules of Professional Conduct (derived from former Rule 2-109), prohibiting agreements restricting the right of a member to practice law, if it requires the member to forego or defer a bona fide retirement payment solely on the basis of his or her continued practice of law.
LA 462 (1990) Preparation of a Will in Which the Attorney Acquires an Interest. An attorney may be subject to discipline for undue influence for drafting or amending a will in which the attorney receives a substantial gift if the client has not received independent advice regarding the drafting or amending of the will. If the client refuses to seek independent advice, the attorney may not draft or amend the will. In addition, the possibility of challenges of undue influence raises serious concerns about the competence of the representation.
LA 470 (1992) Payment of Year-End Bonus to an "Of Counsel" Attorney. The payment of a "year end bonus" to an "of counsel" attorney who is not a partner, associate, or shareholder of the law firm and whose relationship to the law firm consists primarily of the reciprocal referral of business, is prohibited without client consent under Rule 2-200.
LA 475 (1993) Client Papers - Duty to Retain or Return. When a law firm maintains in storage client files relating to matters that have been closed for several years, and then the law firm dissolves, the members of the firm who have responsibility for winding up the affairs of the firm have an ethical obligation to use all reasonable means to contact the former clients to notify them that their files may be retrieved. If, after diligent efforts to notify a former client of the availability of the closed file and of the plan to destroy the file if no contrary instruction is received, and after a sufficient period of time has passed since the notice was sent and since the matter was closed, the former client makes no response, then the dissolved firm's former partners may destroy the file, with the exception of any intrinsically valuable materials. They must not reveal any client confidences or secrets in the process of destroying the files. The Committee strongly recommends that lawyers arrive at some agreement with their current clients regarding the handling and disposition of files once matters are closed in order to avoid the ethical and practical problems which may be caused by not having instructions from former clients as to the disposition of closed files. Ideally, this subject should be addressed expressly in writing at the outset of an engagement.
LA 483 (1995) Limited Representation of In Pro Per Litigants. An attorney may limit the attorney's services by agreement with a pro per litigant to consultation on procedures and preparation of pleadings to be filed by the client in pro per. A litigant may be either self-represented or represented by counsel, but not both at once, unless approved by the court; therefore, in order for the attorney to specially appear on behalf of the litigant before the court for a limited purpose, the attorney should comply with all applicable court rules and procedures of the particular tribunal.
LA 491 (1997) Attorney Office Files - Destruction when Client Deceased. Before a Law Firm may destroy its office files of a deceased client where there is no preexisting agreement or statutes governing disposition thereof, the Law Firm is obligated to give or attempt to give notice to the legal representatives or residuary legatees of the deceased client that the Law Firm intends to destroy the office files, except where (i) there is no pending matter or any reasonably foreseeable possibility that the files may be necessary to pursue or protect legal interests of the deceased client; and (ii) there is a reasonable belief that there are no documents of significant pecuniary or intrinsic value. In the event the legal representative or residuary legatees seek to inspect or obtain return of documents from Law Firm's office files, this must be done without compromising the Law Firm's duty to maintain the deceased client's confidence and secrets.
LA 493 (1998) Disputes Between Former Clients Over Transfer of Original Client Files. When a member's engagement is terminated, the member is ethically obligated to transfer all client files to the former client or the former client's agent promptly upon such former client's request. When an engagement involving the joint representation of multiple clients is terminated, the member is ethically obligated to transfer promptly all client files pursuant to the joint instructions of the former clients. If the former clients have not agreed on which client should receive the original client files, the member should consider whether an interpleader action, a declaratory relief action, or some other action, if any, is authorized and appropriate under the circumstances. Whatever steps the member decides to undertake, however, must be consistent with the member's ethical obligation regarding the transfer of the client files, protection of the former clients' confidence and secrets, and responsibility for not favoring one client over another.
LA 502 (1999) Lawyers' Duties When Preparing Pleadings or Negotiating Settlement for In Pro Per Litigant.
LA 511 (2003) Sharing in Fees as Partner or Employee of Two Law Firms. An attorney may not concurrently serve as a partner or associate in two law firms and share in the fees generated by each firm unless the attorney complies with California Rules of Professional Conduct, Rules 1-400 and 2-200. The attorney must also address such matters as conflicts of interest and client confidences as a participant in each law firm.
LA 516 (2006) Ethical Considerations Relating to an Attorney who Concurrently Serves in an Of Counsel Relationship with a Law Firm and Maintains a Separate Solo Practice.
- SD 1969-4 Payments to Widow and/or Estate for Temporary Take Over of Deceased Attorney's Practice. Name on Door and Letterhead. May Attorney B step into the practice of deceased Attorney A to save and maintain the practice for the benefit of the widow of Attorney A until the widow passes the Bar examination in about three years? May Attorney B retain the name of Attorney A on the door and letterhead?
- SD 1983-10 What is the duty of the attorney for a guardian/conservator/personal representative or other fiduciary who will not prepare an accounting and may have converted assets to his own use?
- SD 1990-3 When an attorney agrees to draft a document with legal significance for another person, the person who must sign the document for it to have any effect becomes a client, regardless of who asked the attorney to draft the document, who paid for the services, or whether the attorney ever meets with the person who will be signing the will.
- SD 1992-2 What obligations, if any, are imposed by the Rules of Professional Conduct of the State Bar of California upon an attorney who obtains knowledge that another attorney has committed a violation of such Rules, which violation raises a substantial question as to the violating attorney's honesty, trustworthiness, or fitness as an attorney?
- SF 1985-1 Informal: It is proper for an attorney to allow or encourage his or her client to attempt to resolve a dispute by communicating directly with an opposing party, so long as the client is not directly or indirectly acting as an agent of the attorney. Any implication to the contrary in informal opinion 1973-25 is disapproved.
- SF 1996-1 Unless the client and attorney agree otherwise, the attorney may dispose of any writing in the "client file," except to the extent retention is necessary to avoid reasonably foreseeable prejudice to the client's legal rights.
- SF 1999-2 An attorney who reasonably believes that a client is substantially unable to manage their own financial resources or resist fraud or undue influence, may, but is not required to, take protective action with respect to the client's person and property.
ABA Ethics Opinions
- ABA 92-369 Disposition of Deceased Sole Practitioners' Client Files and Property
- ABA 03-429 Mentally Impaired Lawyer in the Firm
- ABA 03-431 Lawyer's Duty to Report Rule Violations by Another Lawyer Who May Suffer from Disability or Impairment
Out-of-State Ethics Opinions
- Opinion 08-01: What are a paralegal's obligations and responsibilities when an attorney becomes impaired due to age or disability?, Ethics Board of the National Federation of Paralegal Associations, Inc.