February 11, 2020 Top Story

Ethical Obligations When Seeking Advice and Counsel

Committee finds lawyers can seek advice without creating an ethical conflict

By Josephine M. Bahn

A bar ethics committee has determined that attorneys must disclose consultations with other attorneys in certain circumstances. According to the committee, when attorneys have questions regarding ethical obligations, they should seek the advice of another attorney, but doing so does not create an ethical conflict with the client. However, each decision is fact-based and depends on the individual consultation to determine if a material development requiring disclosure occurs.

Disclose consultations with outside counsel in accordance with professional conduct rules

Disclose consultations with outside counsel in accordance with professional conduct rules

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ABA Section of Litigation leaders say the committee’s rule interpretation serves as a reminder to lawyers to maintain compliance with professional conduct rules and that, during these consultations, lawyers should only disclose client-specific information that is necessary, to ensure compliance with the rules.

Disclosing Consultation May Prove Necessary

Finding that attorneys should seek ethical guidance from fellow attorneys, the opinion analyzes rules related to communication with and loyalty to clients. In The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 2019-197, the committee described two hypothetical situations where a lawyer sought ethics advice from outside counsel on two issues. In the first issue, the lawyer sought guidance regarding ethical obligations in discovery, while in the second, the lawyer requested an opinion on whether a statute of limitations on a cross-complaint had run.

For the first scenario, the committee stated that the lawyer followed the advice of outside counsel and described next steps in discovery to the client. In the second scenario, the lawyer again followed the outside counsel’s suggestion and informed the client of a missed statute of limitations date. Because of the missed date, a conflict of interest was created, thereby requiring the client to execute an informed written consent in order for the lawyer to continue representation.

The ethics committee discussed whether the lawyer had met ethical obligations, including the duty to disclose to the client that an opinion from outside counsel was sought. In analyzing the first scenario, the committee concluded that obtaining advice about ethical compliance with discovery requests does not create a conflict of interest with clients. In the second scenario, the committee found that when lawyers seek advice relating to how best to address a potential conflict with a client, they do not necessarily need to disclose the request to their client. However, in further analyzing the second scenario, the committee found that the lawyer was obligated to disclose the information once it was determined that the lawyer had committed a prejudicial error.

The committee provided lawyers with a roadmap to follow when they believe a prejudicial error has occurred: First, consider whether the lawyer can ethically continue to represent the client or if withdrawal is necessary. Second, cease to represent the client unless the lawyer is able to provide competent, diligent representation. Third, inform the client of the facts of the prejudicial error and the resulting conflict of interest. Fourth, advise the client to seek independent counsel regarding the lawyer’s continuation of representation. Finally, have the client execute an informed, written consent before continuing the representation.

Protecting Lawyers’ and Clients’ Interests

Section of Litigation leaders applaud the committee’s guidance on disclosing ethical consultations. By taking a moderate approach, the committee allowed lawyers to seek advice in making ethical determinations, says Janice V. Arellano, Bridgewater, NJ, cochair of the Section’s Minority Trial Lawyer Committee. The panel struck a reasonable balance by creating a roadmap for lawyers to follow, she adds.

“Certainly if a law firm consults outside counsel under a client-attorney relationship, the privilege would apply to those communications. But as a result of the advice rendered, the law firm may need to take actions like informing the client about the topic that was reason for the outside counsel consultation,” opines John M. Barkett, Miami, FL, cochair of the Section’s Ethics & Professionalism Committee.

The ethics panel “permits lawyers to comply with ethical rules without needing to disclose any more client information than is necessary,” says Nicole M. Reid, Miami, FL, cochair of the Attorneys’ Liability Subcommittee of the Section’s Professional Liability Litigation Committee.

Impact on Daily Practice

The committee’s opinion helps lawyers determine when disclosure is necessary and the steps needed to receive adequate informed consent. “[When] consulting outside counsel, there should be a formal engagement with an identified scope of representation that makes it clear that there is an attorney-client relationship and then the discussions with outside counsel should be confidential and that confidentiality should be maintained,” explains Barkett.

“When consulting with in-house general counsel, I would recommend, though it may not be necessary, to follow a protocol where a request for legal advice is documented, by memoranda or email, and the response is treated by the firm as rendering legal advice by ensuring confidentiality and by limiting distribution within the firm to those with a need to know in order to manage the law firm,” Barkett adds.

 

Josephine M. Bahn is a contributing editor for Litigation News.


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Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).

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