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.

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