By Deborah Wolfe
Wolfe Legal Group
As a legal malpractice law specialist, I am in a unique position to observe what kinds of issues become problematic for lawyers in representing clients. It is heartbreaking to hear some of the stories from clients who have been poorly represented and ultimately damaged to the point that they are seeking representation to obtain redress against their former “champion,” their lawyer. I am not sure what it is about lawyers that makes us so reluctant to admit that we can’t do everything alone, and that we may need help in order to successfully resolve a client’s—or prospective client’s—matter.
While by no means exhaustive, here are a few things to consider that will not only help you to serve your clients’ interests better, but will help you avoid hearing from someone like me on behalf of a former client, or worse, from the State Bar due to an ethics violation.
Read the Rules of Professional Conduct
When I am asked to provide expert witness testimony on the subject of legal ethics, my starting point is always the California Rules of Professional Conduct. I have frequently opined that every California lawyer needs to be an “ethics expert” to the extent that they know what the Rules are; to violate them subjects an attorney to possible disciplinary action, including suspension or disbarment.
At least once a year, I take the time to review the Rules of Professional Conduct and the State Bar Act contained within the California Business & Professions Code, and I encourage all lawyers to do the same—for me, it only takes about an hour. Even as an attorney of over 40 years, I still pick up either some nuance or am reminded of a rule I had forgotten since the last reading.
For additional insight, I also suggest reviewing the ethics opinions published by the State Bar; additional opinions are published by the SDCBA and other California bar associations. While the ethics opinions are advisory only and not binding on the court, they can be very helpful in providing guidance on a number of issues that arise in virtually every area of legal practice.
Avoid conflicts of interest
You should start by asking yourself who your client is. This may seem like a silly question, as you may be thinking, “Of course I know who my client is.” But do you really? By far, the largest part of my practice as an expert witness and as a plaintiff’s legal malpractice lawyer derives from conflicts of interest. It is nearly impossible, in my opinion, for a lawyer to fulfill the duty of undivided loyalty when that lawyer represents more than one client in any particular matter. The key word in that concept is “undivided.” It stems from the ages-old principle that “no man can serve two masters.”
There are several ethical rules related to conflicts of interest, including Rule 1.7, which provides that a lawyer shall not, without informed written consent from each client represent a client if the representation is directly adverse to another client in the same or a separate matter. Additionally, a lawyer shall not, without informed written consent from each affected client represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.
“Informed consent” requires the person’s agreement to a proposed course of conduct after the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably foreseeable adverse consequences of the proposed course of conduct. These disclosures and the required consent must be in writing.
When a lawyer undertakes to represent more than one person, or even one person wearing two “hats” (e.g., someone who has two capacities, such as a corporate officer for another client), before that representation can be undertaken, the lawyer MUST provide a written conflict waiver to each potential client that contains a statement that there exists at least a possibility that a conflict which may not be readily apparent at the outset of the representation will arise at some point later in the representation. The conflict waiver must also contain a statement of the material risks to each of the clients, including actual and reasonably foreseeable consequences to each client if a conflict does in fact arise during the representation.
For example, one of the risks of a joint representation is always that as between the jointly represented clients, there is no attorney-client privilege. This is not an insignificant issue, particularly when you consider that Business & Professions Code § 6068(e)(1) requires an attorney to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” I have always interpreted “at every peril” to include under penalty of death—that is the level of undivided loyalty each of us owes to EACH client. (At the same time, Evidence Code § 962 creates an exception to the attorney-client privilege among joint clients, who may be testifying in a subsequent civil action against each other.)
Another potential risk in every joint representation in a litigation matter is that one client may wish to go to trial while another wishes to settle. In that instance, the lawyer is not allowed to mediate between the clients’ interests or to take the side of one client against the other.
A lawyer’s own interests are not immaterial. Specifically, a lawyer should always be mindful of whether or not their interests—including the financial interest of billing the client for services—conflict with the best interests of the client.
Best practices include analyzing the legal matter undertaken in terms of the cost/risk/benefit to the client at every stage of the representation, and providing the client with such information in order for the client to make wise decisions relative to the matter. Keep your client well informed—clients generally don’t sue lawyers they like.
In short, to avoid claims of malpractice related to conflicts of interest, it is always the better and safer practice to represent just one client in any particular matter.
There is no “I’m just an associate” defense to a Rule violation
When it comes to newer attorneys, the Rules and the State Bar Act apply notwithstanding that the lawyer may act at the direction of another lawyer or other person, per Rule 5.2. A subordinate lawyer does not violate the rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty. However, a subordinate lawyer who believes that the supervisor’s proposed resolution is violative of the professional or ethical rules must communicate their disagreement to the supervisor. In this type of a scenario, I recommend putting your concerns in a writing of some kind—an email or a memo, for example, and maintaining a copy of it in the case of any question or claim by a client or the State Bar.
Sadly, I have seen several instances where the subordinate lawyer gets named as a defendant and held accountable to the client when they felt that they had no other choice than to go along with a senior lawyer’s unethical actions. The standards of the profession apply to every lawyer, regardless of their particular station or designation within a law firm. If more than one lawyer represents a client, each lawyer must comply with all ethical requirements.
In case of a disagreement, the subordinate lawyer and/or their superior can always consult the professional responsibility partner within the firm, or an outside legal ethics specialist. The SDCBA provides a free Legal Ethics Hotline to its members. The State Bar of California also offers a Legal Ethics Hotline as well as a list of legal malpractice law specialists.
As “My Cousin Vinny” comes to understand at the end of that movie, it is no shame nor sin to ask for help!