The State Bar of California’s ethics committee recently examined several scenarios where an attorney consults another attorney on ethical obligations to a client, and questioned whether this advice seeking conflicts with other duties owed to the client.
Attorneys have to balance their duty to communicate with their clients and their duty of loyalty to them with their duty to meet their ethical obligations, said the opinion from the Standing Committee on Professional Responsibility and Conduct.
But the “act of seeking legal advice concerning ethical obligations owed to a client by itself does not create a conflict with the client,” the committee said.
Outside Counsel Help
For example, if an attorney seeks advice from the firm’s outside counsel on ethical obligations in a discovery matter, the lawyer doesn’t have to tell the client they did so, it said.
The lawyer would have to tell the client about any significant developments reached as a result of the consultation, but not that the lawyer consulted an outside source, the committee said.
The second scenario the committee examined is when an attorney seeks advice from outside counsel about possible negligence.
In seeking advice, the lawyers isn’t acting contrary to the client’s interests, the committee said, but ethical obligations to the client kick in if outside counsel determines the lawyer has erred.
If the lawyer’s acts could constitute malpractice, the lawyer has to inform the client of the facts, according to the committee. They should let the client know that the law firm and client now have a conflict of interest and that the client might want to consider consulting an independent counsel.
The lawyer doesn’t have to tell the client that outside counsel was consulted unless it’s a fact the lawyer should disclose under the duty to communicate, the committee said.
The lawyer shouldn’t continue to represent the client in this scenario unless it concludes it can ethically do so, in which case the firm should get the client’s written consent to continue with representation, the committee advised.
The committee determined the end result is no different if a lawyer consults the law firm’s in-house counsel instead of outside counsel in the case of possible negligence, it said. And it added because no conflict arises from the act of seeking advice, the imputation rule—attaching responsibility to one person for the acts of another—doesn’t apply.
The are even benefits to involving an in-house lawyer, including accessibility and identifying problems earlier on, it said.
The opinion is State Bar of Calif. Standing Comm. on Prof’l Responsibility & Conduct, Formal Op. 2019-197.