The State Bar is seeking public comment on Proposed Formal Opinion Interim No. 12-0005 (Seeking Advice About Current Clients).
Deadline: November 26, 2018
The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 5.1, Article 2, Section 6(g) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.
On May 10, 2018, the California Supreme Court issued an order approving 69 new Rules of Professional Conduct, which will go into effect on November 1, 2018. Information about the new rules is available at the State Bar website. Proposed Formal Opinion Interim No. 12-0005 interprets the new Rules of Professional Conduct.
Proposed Formal Opinion Interim No. 12‑0005 considers: What ethical obligations arise when lawyers in a law firm consult with outside counsel concerning matters related to the firm’s representation of a current client, such as the lawyer’s ethical compliance or a possible error by the law firm, and do those ethical obligations change if the lawyer consulted is a member of the same law firm as the consulting lawyer and serves as law firm in-house counsel?
The opinion interprets rules 1.4 and 1.7 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code section 6068(m).
The opinion digest states:
Attorneys at times may seek legal advice concerning their ethical and other obligations to clients, advice that may be provided by, among others, outside counsel or a lawyer within the law firm serving as law firm in-house counsel. The act of seeking legal advice concerning ethical obligations owed to a client by itself does not create a conflict with the client. Once a lawyer becomes aware that he or she has committed an error that could prejudice the client, the lawyer ethically may seek legal advice concerning obligations to the client and options available, but must comply with the rules governing disclosure to clients and conflicts. The lawyer’s ethical obligations in that situation do not vary whether he or she seeks legal advice from a lawyer outside the firm or law firm in-house counsel.
At its August 25, 2017 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 12‑0005 for a 90‑day public comment distribution. Subsequently, at its April 7, 2018 meeting, COPRAC revised the opinion in response to public comments received and, in further accordance with its Rules of Procedure, tentatively approved Proposed Formal Opinion Interim No. 12‑0005 for an additional 60-day public comment distribution. At its September 7, 2018 meeting, COPRAC further revised the opinion, in particular by updating the opinion to conform to the new Rules of Professional Conduct that will take effect on November 1, 2018. And, in accordance with its Rules of Procedure, COPRAC tentatively approved Proposed Formal Opinion Interim No. 12-0005 for an additional 60-day public comment distribution.
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Proposed Formal Opinion Interim No. 12-0005
State Bar Standing Committee on Professional Responsibility and Conduct
November 26, 2018
Angela MarlaudOffice of Professional CompetenceState Bar of California180 Howard StreetSan Francisco, CA 94105Phone: 415-538-2116Fax: 415-538-2171Email: angela.marlaud@calbar.ca.gov
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