New California Ethics Opinion: Lawyers Seeking Ethical Advice

The Regulation and Discipline Committee (RAD) of the State Bar Board of Trustees has approved Formal State Bar Ethics Opinion 2019–197,

The Opinion discusses a lawyer’s ethical obligations when seeking advice regarding ethics issues, either from an independent counsel or another lawyer in the lawyer’s firm.  It concludes that 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 opinion interprets new Rules of Professional Conduct 1.4 (communication) and 1.7 (conflicts of interest regarding current clients).

The Opinion serves the laudable goal of inducing lawyers to obtain ethics and risk management advice sooner rather later.  It also telegraphs the message that serious mistakes that constitute significent developments must be to communicated to clients.  Those two processes should work hand and hand to control damage to the client and to the lawyer and law firm.  There is actually a unity of interest between lawyer and client that might not be readily apparent.

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