Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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What are the ethical responsibilities of an attorney when (1) discovery sanctions are sought against the attorney and the client and (2) such sanctions are awarded against the attorney and the client, or against the attorney alone?
A motion seeking discovery sanctions against an attorney and his or her client is ordinarily a significant development in the representation which will require the attorney to comply with the requirements of rule 3-500 of the California Rules of Professional Conduct and Business and Professions Code section 6068 (m) by informing the client of the motion and request for sanctions. The extent of the information that must be provided to the client under these rules will depend on the circumstances. At a minimum, the attorney must inform the client of the existence of the motion, the fact that sanctions are being sought against the client and the attorney, the amount of the sanctions being sought and the practical consequences of the motion if it is granted or it is denied, and must supply the client with any additional information necessary to permit the client to make informed decisions with respect to the motion.
An attorney must represent the interests of the client before the court in opposing the sanctions motion unless the attorney and client intend to present different positions in opposition to the motion. Any opposition must be consistent with the truth. The attorney must not mislead the tribunal in responding to the sanctions motion. If the attorney and the client agree that the attorney may present a defense that is different than the client's defense, the attorney may continue to represent the client in the motion when the defenses are not competing, so long as the attorney complies with his ethical obligations to be truthful to the court. When the attorney and the client agree to present competing defenses, the attorney cannot represent the client in opposing the motion. In this situation, the attorney and the client may agree that the client retain separate counsel to oppose the motion on the client's behalf. If the attorney insists on exonerating himself from liability for the sanctions and the client does not agree with such an approach, the attorney must withdraw. The attorney and client may agree in advance how to allocate their respective responsibility for paying any such award, provided there is adequate disclosure to the client and the agreement is ethical under the circumstances in which the sanctions are imposed.
Rules 3-310, 3-500, and 5-200 of the California Rules of Professional Conduct.
Business and Professions Code sections 6068 (d), 6068 (e), 6068 (m), and 6103.
Attorney represents Client, who is a defendant in a civil action. In the course of the litigation, plaintiff's counsel files a motion to compel further responses to plaintiff's written discovery and requests sanctions against Attorney and Client in the amount of the fees incurred in bringing the motion.1
The relationship between Attorney and Client subsequent to the filing of the sanctions motion must be analyzed at three junctures in order to understand Attorney's ethical duties. Chronologically, these are: (1) after the filing of the sanctions motion but prior to any formal response; (2) opposing the sanctions motion before the court; and (3) after the court orders sanctions.
A motion for sanctions which would affect the client's interest before the court or would impose liability on the client is ordinarily a significant development in the representation.2 In such cases, the lawyer has a duty to inform the client of the motion and request for sanctions. This duty is found in rule 3-500 of the California Rules of Professional Conduct (hereinafter "rule") which states:
A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable request for information and copies of significant documents when necessary to keep the client so informed.
Business and Professions Code section 6068 (m) imposes the same duty. It states that it is an attorney's duty:
To respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.
The extent of the information that must be provided to the client under these rules will depend on the circumstances. The Committee believes that, at a minimum, the lawyer must inform the client of the existence of the motion, the fact that sanctions are being sought against the client and the lawyer, the amount of the sanctions being sought and the practical consequences of the motion if it is granted or it is denied. The lawyer also has a duty to supply the client with additional information necessary to permit the client to make informed decisions with respect to the motion.
It is the Committee's opinion that the ordinary motion for sanctions in connection with a discovery dispute does not create a conflict of interest that triggers a further disclosure obligation under rule 3-310. Rule 3-310(B)(4) states that a member shall not accept or continue representation of a client without providing written disclosure to the client where:
The member has or had a legal, business, financial, or professional interest in the subject matter of the representation.
The primary purpose of this rule is to prevent situations in which an attorney might compromise his or her representation of a client in order to advance the attorney's own financial or personal interests. (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 546 [28 Cal.Rptr.2d 617].) In Los Angeles County Bar Association Formal Opinion Number 477, the Los Angeles County Bar Association recognized that "[t]he rule is intended to protect the [lawyer-client] relationship from activities or conduct that could produce divided loyalties by the lawyer, and the impairment of the lawyer's competent and impartial representation of the client."
The Committee recognizes that the lawyer in this case may be considered to have a financial interest in the representation because the lawyer stands to incur a financial burden if ordered to pay sanctions as a result of the motion. However, when the lawyer and the client agree to take a common position with respect to the motion, the conflict of interest which the rule is intended to address is not present. As a result, written disclosure pursuant to rule 3-310(B)(4) is not required.3
The Committee believes that routine motions for sanctions in connection with civil discovery disputes fall in this category. The Committee recognizes that motions for sanctions are commonly sought in connection with discovery disputes and that discovery statutes and rules provide for the imposition of sanctions in these cases. An overly broad interpretation of rule 3-310(B)(4) that requires written disclosure in every motion for sanctions in this context would impose unnecessary burdens on the lawyer-client relationship, with no corresponding benefit to the client.
In addition, the California Rules of Professional Conduct are not intended to be used as a litigation tactic to drive a wedge between lawyer and client.4 An overly broad construction of rule 3- 310(B)(4) could produce such a result in routine civil discovery motions involving requests for sanctions when no conflict of interest actually exists.
Attorney must represent the interests of Client before the court in opposing the sanctions motion unless Attorney and Client intend to present different positions in opposition to the motion. In addition, any opposition must be consistent with the truth. Attorney may not mislead the tribunal in responding to the sanctions motion. (Rule 5-200; Bus. & Prof. Code, § 6068 (d).) When Attorney and Client intend to present different defenses to the motion, a conflict of interest will arise that will require Attorney to make written disclosure to Client under rule 3- 310(B)(4). If Attorney and Client agree that Attorney may present a defense that is different than Client's defense, Attorney may continue to represent Client in the motion when the defenses are not competing, so long as Attorney complies with his ethical obligations to be truthful to the court.
When Attorney and Client agree to present competing defenses, Attorney cannot represent Client in opposing the motion. A lawyer's advocacy of antagonistic positions in a hearing or at trial is a conflict of interest that a lawyer and a client cannot agree to waive. (Klemm v. Superior Court (1977) 75 Cal.App.3d 893, 898 [142 Cal.Rptr. 509].) In this situation, Attorney and Client may agree that Client retain separate counsel to oppose the motion on Client's behalf.5
In the foregoing situations in which Attorney is presenting a different or competing defense, Attorney must protect Client's confidential information in opposing the motion. If Attorney's defense to the motion involves the disclosure of such information and Client does not consent to its disclosure, Attorney cannot disclose the information.
If Attorney insists on exonerating himself from liability for the sanctions and Client does not agree with such an approach, Attorney must withdraw.6 However, even after withdrawing from the case or his employment is otherwise terminated, Attorney must continue to maintain Client's confidential information, unless Client contends that the request for sanctions is based on conduct for which Attorney is solely responsible, and Attorney disputes this contention. Under such circumstances, Attorney can reveal Client's confidential information to the extent necessary to defend himself against Client's assertions, so long as the information is relevant to an alleged breach of duty arising out of the lawyer-client relationship by Attorney or Client. (Evid. Code, § 958.) Attorney may then reveal Client's confidential information to the extent necessary to defend himself against the client's claim that he was responsible for the sanctions. (See, e.g., Brockway v. State Bar (1991) 53 Cal. 3d 51, 63 [278 Cal. Rptr. 836] (Evid. Code, § 958 is not a general client-litigant exception allowing disclosure of any privileged communication simply because it is raised in litigation; it only authorizes disclosure of relevant communications between a client and attorney charged with professional wrong-doing); Pacific Tel. & Tel. Co. v. Fink (1956) 141 Cal. App. 2d 332 [296 P. 2d 843] (court denied motion to strike portions of attorney's affidavit under Evid. Code, § 958 or Bus. & Prof. Code, § 6068 (e) when such statements were offered in defense to allegations that attorney entered into stipulation without client's authorization); Los Angeles County Bar Association Formal Opinion Number 396 (citing Pacific Tel. & Tel. Co. v. Fink); compare rule 1.6(b)(2) of the American Bar Association, Model Rules of Professional Conduct (lawyer may reveal client's confidential information to extent lawyer believes reasonably necessary to establish a claim or defense on lawyer's behalf in controversy between lawyer and client, to establish defense to criminal or civil claim against lawyer based on conduct involving client, or to respond to allegation in any proceeding concerning lawyer's representation of client).)
In anticipating the possibility that, at some point during the course of litigation, the opposing party may seek sanctions against both of them, Attorney and Client may want to agree either at the outset of their relationship or during the course of the representation how they will allocate payment of any sanctions which may be imposed. The Committee believes that such an agreement is not unethical per se. (Compare Cal. State Bar Formal Opn. No. 1989-116 (client may agree at the outset of the relationship in the retainer agreement to submit all non-fee7 claims against the lawyer to binding arbitration, provided the retainer agreement sufficiently discloses to client the procedural rights lost); rule 3-300 (rule does not apply to retainer agreement unless it confers on member a pecuniary interest adverse to the client).) However, such an agreement may be unethical in particular circumstances. For example, if the agreement requires the client to pay sanctions which are ordered by the court as a result of the lawyer's misconduct or which the court intends the lawyer to bear alone, such an agreement, if enforced, may violate the lawyer's ethical duties arising from the lawyer's fiduciary relationship with the client, and may constitute contempt of court for ignoring the court's order regarding against whom the court imposed the sanctions. (See Bus. & Prof. Code, § 6103 (wilful disobedience of court order requiring lawyer to do or forebear an act in connection with his profession constitutes cause for disbarment or suspension).)
Further, it may not be possible for a client to give fully informed consent to future sanctions when their nature and amount are unknown at the time of the original retainer. (See Cal. State Bar Formal Opn. No. 1989-115 (lawyer's attempt to obtain from client a blanket waiver of potential conflicts of interest for any matter that may arise is not necessarily improper, but the extent of the waiver thus obtained is measured by the extent to which the client is actually informed of what conflicts he is waiving).) Nevertheless, just as in the case of client waivers of potential conflicts of interest, it may be possible to include in the retainer agreement sufficient disclosure to cover the most likely instances in which sanctions of the kind contemplated in this opinion will arise, and the procedures or methods for allocating payment responsibility to which both attorney and client agree in advance.8
Alternatively, Attorney and Client may include a provision in Attorney's retainer agreement in which they agree that, in the event sanctions are awarded against both of them during the course of the representation, they will defer resolution of any dispute regarding responsibility for the sanctionable behavior until the termination of the litigation, at which time they will resolve their dispute through, perhaps, mediation or arbitration.
If no such provisions are included in the retainer agreement, Attorney and Client may enter into a later agreement to the same effect. However, if such an agreement is entered into during the course of the representation Attorney must assure that Client is fully aware of and consents to the terms and consequences of the arbitration provision. (See Cal. State Bar Formal Opn. No. 1989- 116 (relating to agreements to arbitrate potential malpractice claims).)
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibility or any member of the State Bar.
In particular, where, as here, the conflict could only affect the counsel's representation on a discrete, preliminary matter, we believe a court may, and here properly did, appoint separate counsel for the limited purpose of litigating it. As discussed above, this remedy fully guaranteed defendant's right to conflict-free counsel: it not only prevented the conflict from having any effect, it eliminated the conflict altogether. Furthermore, it provided the added benefit of preserving the pre-existing attorney-client relationship between [defendant's current lawyer] and defendant, about which defendant had never expressed dissatisfaction or even concern. Although we are not aware of any authority that supports the remedy fashioned by the court below, we are also not aware of any authority prohibiting it. (Id. at p. 1687.)
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