Ethical Obligations When Seeking Advice and Counsel

• Author: Josephine M. Bahn
• Pages: 8-8

Published in Litigation News Volume 45, Number 4, Summer 20 20. © 2020 by the Ameri can Bar Association. Re produced with per mission. All rights re served. This info rmation or any porti on thereof may not be c opied or disseminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

bar ethics comm ittee has

determined that attorneys

must disclose consulta-

tions with other atto rneys

in certain circumstances.

According to the State Bar of California

Standing Committee on Professional

Responsibility and Conduct, when

attorneys have questions regarding

ethical obliga tions, they should seek the

advice of another a ttorney, but doing

so does not create an et hical conflict

with the client. However, each d ecision

is fact based a nd depends on the indi-

vidual consult ation to determine if a

material developm ent requiring disclo-

sure occurs.

ABA Section of Liti gation leaders

say the committee ’s rule interpret a-

tion serves as a rem inder to lawyers to

maintain comp liance with professional

conduct rule s and that, during these

consultations , lawyers should only dis-

close client-specifi c information that is

necessary, to ens ure compliance with

the rules.

Finding that atto rneys should seek

ethical guida nce from fellow attorneys,

the opinion ana lyzes rules related to

communicatio n with and loyalty to cli-

ents. In the com mittee's Formal Opinion

No. 2019-197, the comm ittee described

two hypothetical sit uations where a law-

yer sought ethics a dvice from outside

counsel on two iss ues. In the first issue,

the lawyer sought g uidance regarding

ethical obliga tions in discovery, while

in the second, th e lawyer requested an

opinion on wheth er a statute of limita-

tions on a cross-co mplaint had run.

For the first scen ario, the commit-

tee stated that the law yer followed

the advice of outsi de counsel and

described nex t steps in discovery to

the client. In the s econd scenario, the

lawyer again foll owed the outside coun-

sel’s suggestio n and informed the client

of a missed statute -of-limitations date.

Because of the m issed date, a conflict

of interest was created , thereby requir-

ing the client to execute an i nformed

Ethical Obligations When Seeking

Advice and Counsel

written consent i n order for the lawyer

to continue representation.

The ethics comm ittee discussed

whether the lawye r had met ethi-

cal obligation s, including the duty to

disclose to the clien t that an opinion

from outside co unsel was sought.

In analyzing the fi rst scenario, the

committee conc luded that obtaining

advice about ethi cal compliance with

discovery reque sts does not create a

conflict of intere st with clients. In the

second scenar io, the committee found

that when lawyers s eek advice relat-

ing to how best to addre ss a potential

conflict with a clie nt, they do not nec-

essarily nee d to disclose the request

to their client. However, in fu rther

analyzing the se cond scenario, the

committee foun d that the lawyer was

obligated to disclos e the information

once it was determin ed that the law-

yer had committe d a prejudicial error.

The committee p rovided law-

yers with a road map to foll ow when

they believe a prejudi cial error has

occurred: Firs t, consider whether it

is possible to ethic ally continue to

represent the cli ent or if withdrawal

is necessar y. Second, cea se to repre-

sent the client un less it is possible to

provide competent, diligent represen-

tation. Third , inform the client of the

facts of the prej udicial error and the

resulting conflic t of interest. Fourth,

advise the client to se ek indepen-

dent counsel re garding the lawyer’s

continuation of representation. And,

finally, have the client execute a n

informed, writ ten consent before con-

tinuing the representation.

Section of Litiga tion leaders

applaud the committee’s guidance

on disclosing ethical consultations.

By taking a mode rate approach, the

committee allowe d lawyers to seek

advice in making e thical determi-

nations, notes J anice V. Arellano,

Bridgewater, NJ, coch air of the

Section’s Mino rity Trial Lawyer

Committee. Th e panel struck a rea-

By Josephine M . Bahn, Litigatio n News Associate Editor

sonable bala nce by creating a road

map for lawyers to fol low, she adds.

“Certainl y if a law firm consults

outside couns el under an attorney-

client relations hip, the privilege would

apply to those comm unications. But

as a result of the advice r endered, the

law firm may need to take a ctions like

informing the cli ent about the topic

that was the reason fo r the outside

counsel consul tation,” opines John

M. Barkett, M iami, FL, cochair of the

Section’s Ethics & P rofessionalism

Committee.

The ethics pan el “permits lawyers

to comply with ethical r ules without

needing to discl ose any more cli-

ent information than is necessary,”

observes Nico le M. Reid, Miami, FL,

cochair of the Sec tion’s Professional

Liability Litigation Commit tee’s

Attorneys’ Liability Subcom mittee.

The committee ’s opinion hel ps

lawyers determine when disclosure

is necessar y and the steps needed to

receive adequate in formed consent.

“[When] consultin g outside counsel,

there should be a fo rmal engagement

with an identified s cope of representa-

tion that makes it cle ar that there is an

attorney-clien t relationship, and then

the discussion s with outside counsel

should be confi dential and that con-

fidentiality sh ould be maintained,”

explains Barkett.

“When consu lting with in-house

general counsel, I would recommend,

though it may not be ne cessary, to fol-

low a protocol where a req uest for legal

advice is docume nted by memoranda

or email, and th e response is treated by

the firm as rende ring legal advice by

ensuring confi dentiality and by limit-

ing distributio n within the firm to those

with a need to know in ord er to manage

the law firm,” Bar kett counsels.

Digital versio ns of all Ethics stories,

including links to resources and authorities,

are available at htt p://bit.ly/LN-ethics .

8 | S ECTION OF LITIGATION

ETHICS STRU GGLES IN THE LEGAL WOR LD