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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


California Legal Ethics

1.2   Rule 1.2 Scope of Representation

1.2:100   Comparative Analysis of CA Rule

Primary California References: CRPC 3-210, 3-200, 3-510, B&PC § 6103
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary:

1.2:101      Model Rule Comparison

As a general rule, MR 1.2 requires a lawyer to abide by the client’s decisions concerning representation objectives and to consult with the client as to the “means by which [the objectives] are pursued.” MR 1.2(a). A lawyer may not knowingly counsel a client to engage in criminal or fraudulent conduct, but he or she may counsel a client “to make a good faith effort to determine the validity, scope, meaning or application of the law.” MR 1.2(d). When a lawyer knows that the client expects unethical or illegal assistance, the client must be told of the limitations on the lawyer’s conduct. [See MR 1.2(e)].

CRPC 3-210 prohibits advising the violation of any law, rule or tribunal ruling unless the lawyer has a good faith belief that the law, rule or ruling is invalid. Validity may be tested by taking the “appropriate steps in good faith.” See CRPC 3-210. Also, a California lawyer must not handle a representation where he or she knows or should know that the objective is to advocate a position without probable cause for purposes of harassment or malicious injury, see CRPC 3-200(A); or present a claim or defense unwarranted under existing law in the absence of a good faith argument for modification, extension or reversal of the law, see CRPC 3-200(B). [See also MR 1.16, infra].

MR 1.2(a) requires a lawyer to defer to the client in deciding whether to accept settlement offers, and in criminal cases, and on decisions on entering pleas, waiving a jury trial, and whether the client will testify. See MR 1.2(a). The California rules do not expressly require attorneys to abide by the client’s decisions in any particular set of circumstances. However, CRPC 3-510 requires prompt communication of all terms and conditions made to a client in a criminal matter and all terms and conditions of any written offer of settlement in all other matters. See CRPC 3-510. See also B&PC § 6103.5(a) (attorneys must communicate all written settlement offers to the client).

There are no California rules that correspond to MR 1.2(b), which states that representing a client does not constitute an endorsement of the client’s views, or MR 1.2(c), which allows a lawyer to limit the objectives of the representation provided that the client consents upon consultation. [See 1.1:350 Waiver of Prospective Liability, supra].

1.2:102      Model Code Comparison

DR 7-101(B)(2) allows a lawyer to refuse to aid or participate in conduct that he or she believes to be unlawful, even if “there is some support for an argument that the conduct is legal.” DR 7-101(B)(2). See also DR 7-102(A)(7) (prohibiting assistance in conduct that lawyer knows to be illegal or fraudulent); DR 7-102(A)(8) (lawyer must not knowingly engage in conduct that violates a law or disciplinary rule). CRPC 3-210 establishes a different standard; it allows a lawyer to take “appropriate steps in good faith to test the validity of any law, rule or ruling of a tribunal.” CRPC 3-210.

The DR do not allow a lawyer to represent a client in a matter designed to cause harassment, see DR 7-102(A)(7); or to advance a claim or defense unwarranted under existing law, except where a good faith argument exists for extension, modification or reversal of the law, see DR 7-102(A)(2). This mirrors CRPC 3-210 [see 1.2:101 Model Rule Comparison, infra].

EC 7-7 gives the client authority to make the ultimate decisions on matters that may affect the merits of the cause or that may substantially prejudice the merits of the cause or that may substantially prejudice the client’s rights. See, e.g., EC 7-7 (acceptance of settlement offer and waiver of right to plead affirmative defense in civil matters; whether to enter plea and whether to appeal in criminal matters). Cf. CRPC 3-510 (requiring prompt communication of all terms and conditions made to clients in criminal matters and all terms and conditions of any written offer of settlement in all other matters).

1.2:200   Creating the Client-Lawyer Relationship

Primary California References: CRPC 3-310, 3-700, 4-210, 3-300, 3-500, 3-510, 4-100, B&PC § 6068
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA § 31:101, ALI-LGL §§ 26-29A, Wolfram § 9.2

An attorney-client relationship is created either by an express or implied contract. [See 1.2:210 Formation of Client-Lawyer Relationship, infra]. The existence of an attorney-client relationship creates mutual duties on the part of the attorney and the client. An attorney also owes a duty to prospective clients who consult with the attorney concerning legal representation regardless of actual retention. [See 1.2:220 Lawyer's Duties to Prospective Client, infra]. With respect to actual clients, an attorney-client relationship is a fiduciary relationship of the very highest character and when rendering legal advice an attorney must use such skill, prudence, and diligence as lawyers of ordinary skill and capacity. [See 1.2:250 Lawyer's Duties to Client in General, infra]. An attorney must also represent his or her client zealously within the bounds of the law and owes a duty of undivided loyalty and fidelity to his or her clients. [See 1.2:250 Lawyer's Duties to Client in General, infra]. The client has a duty to compensate the attorney for services and expenses rendered during the course of the representation and in some instances indemnify the attorney for liability to which the client exposed the lawyer. [See 1.2:260 Client Duties to Lawyer, infra]. An attorney, however, is prohibited from representing a client if the client’s purpose in conducting litigation is to harass or maliciously injure another or such representation would violate any rules or laws. [See 1.2:230 When Representation Must Be Declined, infra].

1.2:210      Formation of Client-Lawyer Relationship

Except where an attorney has been appointed by the court, the attorney-client relationship is created by either an express or implied contract. See Responsible Citizens v. Superior Court (5th Dist. 1993) 16 Cal.App.4th 1717, 20 Cal.Rptr.2d 756 (existence and nature of an implied contract for an attorney-client relationship is determined by the totality of the circumstances, including the parties’ conduct). “When a party seeking legal advice consults an attorney at law and secures that advice, the relation of attorney and client is established prima facie.” Perkins v. West Coast Lumber Co. (1900) 129 Cal. 427, 429, 62 P. 57. An important distinction, however, is whether the purpose of the consultation was to advise regarding the client’s rights or liabilities, or for the lawyer to decide whether to undertake the representation. In the latter situation, investigative activities by attorneys do not necessarily constitute undertaking a representation. See Setzer v. Robinson (1962) 57 Cal.2d 213, 18 Cal.Rptr. 524, 368 P.2d 124 (fact that attorney had to conduct preliminary investigation to decide whether to undertake representation after the initial consultation with prospective client did not create an attorney-client relationship).

The general requirement for an implied attorney-client relationship is that the attorney’s conduct must create a reasonable belief that the attorney will accept representation. See Fox v. Pollack (1st Dist. 1986) 181 Cal.App.3d 954, 226 Cal.Rptr. 532 (client’s belief in attorney-client relationship must be reasonably induced by attorney’s representation or conduct). See generally Moss v. Stockdale, Peckham & Werner (2nd. Dist. 1996) 47 Cal.App.4th 494, 54 Cal.Rptr.2d 805 (law firm that allowed attorney to consult individual at law firm’s offices may have formed attorney-client relationship with individual); Miller v. Metzinger (2nd Dist. 1979) 91 Cal.App.3d 31, 154 Cal.Rptr. 22 (attorney may have formed professional relationship by undertaking to obtain records and provide advice for plaintiff).

The factors the court considers in determining the existence of an implied attorney-client relationship may vary depending upon the context of the parties’ interaction. In Responsible Citizens v. Superior Court (5th Dist. 1993) 16 Cal.App.4th 1717, 20 Cal.Rptr.2d 756 the court listed the pertinent factors in determining whether an attorney whose client is a partnership had established an implied attorney-client relationship with an individual partner: (1) the type and size of the partnership; (2) the nature and scope of the attorney’s engagement; (3) the nature of contacts between the attorneys and the individual partner; (4) the attorney’s access to information relating to the individual partner’s interests; and (5) whether there is an implied agreement not to take on other representations adverse to the individual partner’s personal interests. See also Johnson v. Superior Court (4th Dist. 1995) 38 Cal.App.4th 463, 45 Cal.Rptr.2d 312 (since attorney undertook general representation of partnership, he owed duty of loyalty to all partners; thus, whether implied attorney-client relationship existed between attorney and individual limited partners is “of no great moment.”).

1.2:220      Lawyer's Duties to Prospective Client

In general, a lawyer owes fiduciary duties to a person who consults with the lawyer concerning legal representation, even though no actual retention of the lawyer is made or payment of legal fees is paid. See Beery v. State Bar (1987) 43 Cal.3d 802, 239 Cal.Rptr. 121, 739 P.2d 1289; In re Marriage of Zimmerman (1st Dist. 1993) 16 Cal.App.4th 556, 20 Cal.Rptr.2d 132. Such fiduciary duties includes a lawyer’s duty of reasonable care to a prospective client. See Meighan v. Shore (2nd Dist. 1995) 34 Cal.App.4th 1025, 40 Cal.Rptr.2d 744 (lawyer who speaks to wife and injured husband but represents only husband should advise wife of existence of loss of consortium claim); Miller v. Metzinger (2nd Dist. 1979) 91 Cal.App.3d 31, 154 Cal.Rptr. 22 (lawyer who advises potential client must mention statute of limitations expiration). This duty of reasonable care requires that an attorney, pursuant to B&PC § 6068(e), maintain inviolate the confidence, and at every peril to herself preserve the secrets, of her client. See B&PC § 6068(e). See generally People v. Canfield (1974) 12 Cal.3d 699, 117 Cal.Rptr. 81, 527 P.2d 633, (any information acquired by the attorney during the course of initial consultation, regardless of actual engagement, is privileged). See, e.g., People v. Dorrance (1st Dist. 1944) 65 Cal.App.2d 125, 150 P.2d 10; In re Dupont’s Estate (1st Dist. 1943) 60 Cal.App.2d 276, 140 P.2d 866. Cf. People v. Gionis (1995) 9 Cal.4th 1196, 40 Cal.Rptr.2d 456, 892 P.2d 1199 (lawyer allowed to testify about conversation with physician who discussed violence towards estranged wife that later took place; lawyer had made clear initially that he would not undertake representation).

However, where the exercise of reasonable care to a potential client would conflict with the interests of an existing client and thus require mandatory withdrawal from representing the potential client, the attorney’s duty of reasonable care with respect to the potential client is relaxed. See generally Flatt v. Superior Court (1994) 9 Cal.4th 275, 36 Cal.Rptr.2d 537, 885 P.2d 950 (after initially interviewing prospective client, lawyer determined from conflict check within firm that intended defendant in suit was present firm client, thus there was no duty to inform prospective client to file suit within statute of limitations period or advise prospective client to seek alternative counsel). The exception is in line with the general principle that an attorney’s duty of loyalty to a client cannot be divided, at least under circumstances where the ethical obligations to withdraw from further representation of the parties is mandatory. See CRPC 3-310 (prohibiting attorneys from accepting or continuing representation of more than one client in a matter in which the interests of the client actually conflict). [See also, 1.7:210 Basic Prohibition of Conflict of Interest, infra].

1.2:230      When Representation Must Be Declined [see 1.16:200-230]

California, under CRPC 3-700, uses broader standards for mandatory withdrawal than the Model Rules or Model Code. Under CRPC 3-700, a lawyer must withdraw, subject to permission of the court, if the lawyer “knows” or “should know” that the client is conducting litigation or pursuing a defense for the purpose of harassing or maliciously injuring any person and when the lawyer knows or should know that continued employment will violate the rules. See CRPC 3-700(B)(1)-(2). See generally Cosenza v. Kramer (1st Dist. 1984) 152 Cal.App.3d 1100, 200 Cal.Rptr. 18 (an attorney is not a hired gun and must withdraw from representation if client insists on pursuing an appeal that is frivolous or taken for purpose of delay); Vangsness v. Superior Court (4th Dist. 1984) 159 Cal.App.3d 1087, 206 Cal.Rptr. 45 (an attorney has a duty and a right to withdraw from a case if his representation will violate his professional responsibility); Metzger v. Silverman (Cal. Super. 1976) 62 Cal.App.3d Supp. 30, 133 Cal.Rptr. 355 (attorney must withdraw if attorney determines that this action is taken solely for purpose of harassing or maliciously injuring the opposing party). Additionally, a lawyer must withdraw when the lawyer’s mental or physical condition renders it “unreasonably difficult to carry out the employment effectively.” CRPC 3-700(B)(3). For further discussion on when representation must be declined [see 1.16:200 Mandatory Withdrawal, infra].

1.2:240      Client-Lawyer Agreements

In relevant part, CRPC 4-210 prohibits lawyers from agreeing to pay the client’s business or personal expenses. However, the rule does not prohibit: (1) agreements to pay business or personal expenses to third persons from funds collected as a result of the representation if client consent is obtained, see CRPC 4-210(1), (2) a post-employment loan to the client upon the client’s promise to repay, see CRPC 4-210(2), or (3) advancing the “reasonable” costs of prosecuting or defending a claim or otherwise “protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the matter,” see CRPC 4-210(3).

CRPC 3-300 applies when a lawyer enters a business transaction with the client or “knowingly acquire[s] an ownership, possessory, security, or other pecuniary interest adverse to a client.” Here a lawyer must insure that: (1) the terms of the transaction are fair and disclosed in writing to the client in a manner in which the client should reasonably be able to understand, see CRPC 3-300(A); see also In the Matter of Johnson (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 233, 242 (client’s unsecured loan of approximately $20,000 to attorney is unfair); (2) the client is advised in writing to seek the advice of an independent lawyer and given a reasonable opportunity to do so, see CRPC 3-300(B); and (3) the client thereafter provides written consent, see CRPC 3-300(C). [See also 1.5:210, Client-Lawyer Fee Agreements, infra; 1.8:200 Lawyer's Personal Interest Affecting Relationship, infra].

1.2:250      Lawyer's Duties to Client in General [see also 1.1:320]

The attorney-client relationship is a fiduciary relationship of the very highest character. See Cox v. Delmas (1893) 99 Cal. 104, 33 P. 836. As a fiduciary, an attorney must refrain from using undue influence and must be committed to the most scrupulous good faith. See Trafton v. Youngblood (1968) 69 Cal.2d 17, 69 Cal.Rptr. 568, 442 P.2d 648; Clark v. State Bar (1952) 39 Cal.2d 161, 246 P.2d 1. When an attorney agrees to render legal advice, he or she impliedly agrees to “use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in the performance of the tasks that they undertake.” Kirsch v. Duryea (1978) 21 Cal.3d 303, 308, 146 Cal.Rptr. 218, 578 P.2d 935. See CRPC 3-110 (attorneys must not intentionally, recklessly, or repeatedly fail to perform legal services with competence). The standard of ordinary skill is that of members of the profession in the “same or a similar locality under similar circumstances.” Wright v. Williams (2nd Dist. 1975) 47 Cal.App.3d 802, 809, 121 Cal.Rptr. 194 (defendant attorney, a specialist in maritime law, found not liable where plaintiff-clients failed to present expert testimony defining duty owed by attorney performing such highly specialized legal services or that attorney had failed to perform as a reasonably prudent specialist in his field) (quoting Smith v. Lewis (1975) 13 Cal.3d 349, 355 n.3, 118 Cal.Rptr. 621, 530 P.2d 589).

An attorney has a duty to both his client and to the legal system to “represent his client zealously within the bounds of the law.” People v. McKenzie (1983) 34 Cal.3d 616, 631, 194 Cal.Rptr. 462, 668 P.2d 769. In advising the client, attorneys should provide sound advice that furthers the client’s interests, but there is no obligation to advise on all possible alternatives no matter how remote or tenuous. See Davis v. Damrell (1st Dist. 1981) 119 Cal.App.3d 883, 174 Cal.Rptr. 257. In providing advice, an attorney is expected to possess knowledge of the plain and elementary principles of law that are commonly known by well-informed attorneys. With respect to unsettled areas of the law, an attorney must undertake reasonable research and make an informed decision as to the proper course of conduct based on the particular problem at hand. See Smith v. Lewis (1975) 13 Cal.3d 349, 118 Cal.Rptr. 621, 530 P.2d 589 overruled on other grounds by In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561. Attorneys generally have a duty to follow client instructions with reasonable care and promptness within the bounds of the law. See Lally v. Kuster (1918) 177 Cal. 783, 171 P. 961.

Included in the attorney-client relationship is an attorney’s duty of undivided loyalty and fidelity to his or her clients. See Alkow v. State Bar (1971) 3 Cal.3d 924, 92 Cal.Rptr. 278, 479 P.2d 638; Mason v. Levy and Van Bourg (4th Dist. 1978) 77 Cal.App.3d 60, 143 Cal.Rptr. 389. The concept of loyalty involves a commitment to the client, see Stanley v. Richmond (1st Dist. 1995) 35 Cal.App.4th 1070, 41 Cal.Rptr.2d 768 (attorney may not assume any position that would prevent him or her from devoting his or her entire energies to his or her client’s interests), preservation of client confidential information, see B&PC § 6068(e) (attorney must preserve the secrets of his or her client at every peril to himself or herself) and avoiding conflicts of interest that might impair the representation or undermine a relationship of trust, see CRPC 3-310 (attorney may not accept or continue representation where there are potential conflicts of interest without informed written consent of the client). An attorney’s duty of loyalty is so inviolate that not even by withdrawing from the relationship can the attorney evade it. See Flatt v. Superior Court (1994) 9 Cal.4th 275, 36 Cal.Rptr.2d 537, 885 P.2d 950.

Furthermore, under CRPC 3-500 an attorney must “keep a client reasonably informed about significant developments relating to the employment or representation and promptly comply with reasonable requests for information.” CRPC 3-500. See B&PC § 6068(m) (attorneys must “respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.”); see also Neel v. Magana, Olney, Levy, Cathcart & Gelfand (1971) 6 Cal.3d 176, 98 Cal.Rptr. 837, 491 P.2d 421 (an attorney owes a duty to communicate to his client whatever information the attorney acquires during course of attorney-client relationship). Furthermore, an attorney must promptly communicate to his or her client all terms, conditions, and amounts of settlement offers. See CRPC 3-510. For further discussion on an attorney’s duty to communicate with his or her client [see Rule 1.4 Communication, infra].

With respect to attorney’s fees for legal services, CRPC 4-100 requires that “[a]ll funds received or held for the benefit of clients by a member or law firm. . . shall be deposited in one or more identifiable bank accounts. . . .” CRPC 4-100. Generally, no funds belonging to the attorney or law firm may be deposited therein or otherwise commingled therewith. See CRPC 4-100; Palomo v. State Bar (1984) 36 Cal.3d 785, 205 Cal.Rptr. 834, 685 P.2d 1185, (attorneys assume a personal obligation of reasonable care to comply with the “critically important rules” for the safekeeping and disposition of client funds). The attorney or law firm also must maintain proper books of accounts and records of transactions with respect to the client accounts. See Worth v. State Bar (1976) 17 Cal.3d 337, 130 Cal.Rptr. 712, 551 P.2d 16.

1.2:260      Client's Duties to Lawyer

There are currently no California rules or statutes which governs a client’s duties to his or her attorney. California case law on this topic is equally scarce. However, it is generally acknowledged that the attorney-client relationship imparts certain duties to a client for which he or she owes to his or her lawyer concerning matters covered by the representation. Among such duties is a client’s duty to compensate the lawyer for services and expenses. See Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (2nd Dist. 1976) 57 Cal.App.3d 104, 128 Cal.Rptr. 901 (in the absence of statutory or contractual provisions, attorney fees must be paid by the party employing the attorney and are not recoverable as damages). With respect to reimbursements of attorney expenses, if the employment contract provides for such reimbursements, the client’s duty and attorney’s right is simply a matter of interpretation of the agreement. See Estate of Baum (1st. Dist. 1989) 209 Cal.App.3d 744, 257 Cal.Rptr. 566 (client’s obligation to compensate his attorney is ordinarily determined by the agreement, express or implied); Darnell v. Woodruff (2nd Dist. 1936) 14 Cal.App.2d 628, 58 P.2d 975 (agreement to cover expenses). In the absence of a provision in the employment agreement, the attorney is entitled to be repaid for costs of suit, e.g., filing fees, witness fees, and jury fees. See Cooley v. Miller & Lux (1909) 156 Cal. 510, 105 P. 981. In the absence of a special agreement, the attorney is generally not entitled to reimbursement for personal and traveling expenses. See Tasker v. Cochrane (3rd Dist. 1928) 94 Cal.App. 361, 271 P. 503. A client may also have a duty to indemnify the lawyer for liability to which the client exposed the lawyer without the lawyer’s fault. See generally Southern Pacific Transportation Co. v. Ohbayashi America Corp. (2nd Dist. 1983) 147 Cal.App.3d 233, 195 Cal.Rptr. 63 (though not explicitly discussing the attorney-client relationship, court held that a right to indemnity can arise from, among other things, an express contract, an implied contract, some special relationship legally sufficient to raise an obligation to indemnify, or, as between two tortfeasors, where the fault of one is active and the other passive).

1.2:270      Termination of Lawyer's Authority

An attorney's authority to act on the client's behalf terminates where he or she is suspended from the practice of law. See Lovato v. Santa Fe Internat, Corp. (4th Dist. 1984) 151 Cal.App.3d 549, 198 Cal.Rptr. 838 (service of process on a suspended attorney does not provide constructive notice of process to the client); Antonsen v. Pacific Container Co. (1st Dist. 1941) 48 Cal.App.2d 535, 120 P.2d 148 (party is not bound by service of process upon suspended attorney).

For cases discussing the termination of the attorney-client relationship for purposes of the statute of limitations on malpractice claims, see Worthington v. Rusconi (6th Dist. 1994) 29 Cal.App.4th 1488, 35 Cal.Rptr.2d 169 (continuity of the attorney-client relationship depends upon objective evidence of an ongoing mutual relationship); cf., Hensley v. Caietti (3rd Dist. 1993) 13 Cal.App.4th 1165, 16 Cal.Rptr.2d 837 (termination must be determined by examining the "client's perspective") (court did not address whether client must act upon opinion).

1.2:300   Authority to Make Decisions or Act for Client

Primary California References: CRPC 5-110, B&PC § 6104, Civ. Proc. Code §§ 283, 575, 473
Background References: ABA Model Rule 1.2(a), Other Jurisdictions
Commentary: ABA/BNA § 31.301, ALI-LGL §§ 32-34, 37-41, Wolfram §§ 4.4, 4.6

The attorney-client privilege is governed under the principles of agency. [See 1.2:310 Allocating Authority to Decide Between Client and Lawyer, infra]. As an agent of the client, an attorney possesses certain authority to make decisions and act on behalf of a client. [See 1.2:340 Lawyer's Authority to Act for Client, infra]. As a result of this agency relationship, a lawyer’s knowledge and negligence is attributed to the client. [See 1.2:350 Lawyer's Knowledge Attributed to Client, infra ; 1.2:360 Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility, infra]. There is also a rebuttable presumption that an attorney appearing before a tribunal has authority to represent the person for whom the appearance is made. [See 1.2:370 Appearance Before a Tribunal, infra]. Despite the agency relationship, clients have the final authority with respect to matters which affect the client’s substantive rights. [See 1.2:320Authority Reserved to Client, infra]. Attorneys, on the other hand, have general authority to control the procedural aspects of litigation and litigation tactics or strategies. [See 1.2:330 Authority Reserved to Lawyer, infra].

1.2:310      Allocating Authority to Decide Between Client and Lawyer

The lawyer-client relationship is most frequently characterized as an agency relationship, with the lawyer acting as agent for the client. As such, the attorney-client relationship is governed by the rules applicable to the relationship of principal and agent in general. See Fidelity & Casualty Co. of New York v. Abraham (1st Dist. 1945) 70 Cal.App.2d 776, 161 P.2d 689. The client as principal is bound by the acts of the attorney-agent within the scope of the attorney’s actual (express or implied) or apparent or ostensible authority, or by unauthorized acts ratified by the client. See Fidelity & Casualty Co. of New York v. Abraham (1st Dist. 1945) 70 Cal.App.2d 776, 161 P.2d 689. See generally, Service Tank Lines v. Lema (3rd Dist. 1937) 19 Cal.App.2d 20, 64 P.2d 999 (an attorney’s authority is limited to the subject matter for which he or she is retained by the client). The client is also bound by the mistakes made by the attorney, if made within the scope of the attorney’s authority. See Wyoming Pacific Oil Co. v. Preston (2nd Dist. 1959) 171 Cal.App.2d 735, 341 P.2d 732. But where the attorney exceeds his or her authority, the client is not bound unless the client ratifies the unauthorized act. See Porter v. Elizalde (1899) 125 Cal. 204, 57 P. 899 (client did not ratify attorney’s unauthorized hiring of additional counsel for representation where attorney told client that he would pay for all expenses of litigation). See, e.g., Henshall v. Coburn (1917) 177 Cal. 50, 169 P. 1014. The courts will not construe a client’s mere silence as acquiescence or ratification of his or attorney’s acts. See Porter v. Elizalde (1899) 125 Cal. 204, 57 P. 899.

1.2:320      Authority Reserved to Client

In civil matters, the general rule is that a client makes the decision whether and on what terms to settle a claim and whether to appeal a civil proceeding. See United States v. Beebe (1901) 180 U.S. 343, 45 L.Ed. 563, 21 S.Ct. 371; Linsk v. Linsk (1969) 70 Cal.2d 272, 74 Cal.Rptr. 544, 449 P.2d 760. Although the client has the last word on settlements, in the absence of a contrary instruction or agreement, a lawyer normally has authority to begin or to participate in settlement discussions, but not to conclude them. See generally, Estate of Falco (2nd Dist. 1987) 188 Cal.App.3d 1004, 233 Cal.Rptr. 807 (client’s right to reject a settlement is absolute and is implicit in the contract between a client and an attorney). The conclusion of a settlement agreement absent client authority may subject the lawyer to disciplinary actions. See, e.g., Sampson v. State Bar (1974) 12 Cal.3d 70, 115 Cal.Rptr. 43, 524 P.2d 139 (attorney received five year probationary suspension with two years actual suspension for making false claims to an accident insurer and concluding settlement negotiations with insurer without consulting client).

In a criminal case, the client-defendant has ultimate control over certain decisions because they derive from constitutional guarantees for criminal defendants. See, e.g. Jones v. Barnes (1983) 463 U.S. 745, 77 L.Ed.2d 987, 103 S.Ct. 3308 (decisions about fundamental matters including whether to plead guilty, waive jury trial, testify or take appeal and, with some limitations, whether to act as his own advocate are for the defendant); Faretta v. California (1975) 422 U.S. 806, 45 L.Ed.2d 562, 95 S.Ct. 2525 (decision to waive counsel belongs to defendant); People v. Frierson (1985) 39 Cal.3d 803, 218 Cal.Rptr. 73, 705 P.2d 396 (choice of whether to offer diminished capacity defense at guilt or penalty phase of capital murder trial is fundamental choice reserved to defendant); People v. McKenzie (1983) 34 Cal.3d 616, 194 Cal.Rptr. 462, 668 P.2d 769 (defendant makes decisions about substantive matters such as what plea to enter, whether to waive jury trial, and whether to testify). However, in civil matters the lawyer’s decisions on tactics or procedural issues may be accorded more deference since the same constitutional guarantees for criminal defendants do not apply. See, e.g., Duffy v. Griffith Co. (2nd Dist. 1962) 206 Cal.App.2d 780, 24 Cal.Rptr. 161 (lawyer may decide to withdraw or refuse to submit a defense as a matter of trial expediency or tactics); Nahhas v. Pacific Greyhound Lines (3rd Dist. 1961) 192 Cal.App.2d 145, 13 Cal.Rptr. 299 (lawyer allowed to make decision about presenting or refusing to present certain witnesses).

1.2:330      Authority Reserved to Lawyer

In both civil and criminal matters, the attorney has general authority to control the procedural aspects of the litigation and to bind the client in these matters. In the civil context, the attorney has authority to enter into stipulations binding on the client in all matters of procedure, though the attorney may not stipulate in a manner that impairs the client’s substantive rights or the cause of action itself. See, e.g., Duffy v. Griffith Co. (2nd Dist. 1962) 206 Cal.App.2d 780, 24 Cal.Rptr. 161 (lawyer may decide to withdraw or refuse to submit a defense as a matter of trial expediency or tactics); Nahhas v. Pacific Greyhound Lines (3rd Dist. 1961) 192 Cal.App.2d 145, 13 Cal.Rptr. 299 (lawyer allowed to make decision about presenting or refusing to present certain witnesses). The attorney cannot without authorization “settle the suit, stipulate to a matter that would eliminate an essential defense, agree to entry of a default judgment, or stipulate to nominal damages.” See In re Horton (1991) 54 Cal.3d 82, 94-95, 284 Cal.Rptr. 305, 813 P.2d 1335.

1.2:340      Lawyer's Authority to Act for Client

The lawyer-client relationship is governed by the rules applicable to the relationship of principal and agent in general. See Fidelity & Casualty Co. of New York v. Abraham (1st Dist. 1945) 70 Cal.App.2d 776, 161 P.2d 689. Under the principles of agency, a lawyer may bind a client in dealings with a proceeding or third persons when the client authorizes the lawyer to do so (actual or implied authority) or when the client’s conduct leads the court or a third person to believe that the lawyer has authority in the matter (apparent authority). See Yanchor v. Kagan (2nd Dist. 1971) 22 Cal.App.3d 544, 99 Cal.Rptr. 367. Additionally, a client is bound by the lawyer’s act or failure to act when the lawyer has legal authority to make the binding decision and when the client ratifies the act. See Navrides v. Zurich Ins. Co. (1971) 5 Cal.3d 698, 97 Cal.Rptr. 309, 488 P.2d 637 (ratification by filing suit to enforce unauthorized settlement agreement against insurance company). See, e.g., Moving Picture Machine Operators Union v. Glasgow Theaters, Inc. (1st Dist. 1970) 6 Cal.App.3d 395, 86 Cal.Rptr. 33. Ratification, however, cannot take place until the client is in full possession of the facts. See Broecker v. Moxley (4th Dist. 1934) 136 Cal.App. 248, 28 P.2d 409 (no ratification where client’s attorney executed agreement of settlement without client’s knowledge and client, upon learning of agreement, promptly discharged his attorney and obtained other counsel).

There is a strong but rebuttable presumption that an attorney is authorized by virtue of his employment to bind the client in procedural matters arising during the course of the action. See Gagnon Co. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 289 P.2d 466; see also, Bowden v. Green (3rd. Dist. 1982) 128 Cal.App.3d 65, 180 Cal.Rptr. 90. This presumption can be rebutted by a showing of the adverse party’s or the court’s knowledge of restrictions on the attorney’s authority. See Knowlton v. Mackenzie (1895) 110 Cal. 183, 42 P. 580; see also, Corcoran v. Arouh (2nd Dist. 1994) 24 Cal.App.4th 310, 29 Cal.Rptr.2d 326 (presumption overcome where litigant presented uncontradicted evidence that attorney had no authority to act on litigant’s behalf).

The presumptive authority conferred upon an attorney is “in part apparent authority - i.e., the authority to do that which attorneys are normally authorized to do in the course of litigation manifested by the client’s act of hiring an attorney - and in part actual authority implied in law.” Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 404, 212 Cal.Rptr. 151, 696 P.2d 645. See In re Marriage of Helsel (4th Dist. 1988) 198 Cal.App.3d 332, 243 Cal.Rptr. 657 (there are some procedural and tactical issues over which the lawyer must exercise ultimate authority, even in the face of the client’s express objections).

A lawyer’s authority to act in procedural and tactical matters is implied in law as a necessary incident to the function the attorney is engaged to perform. See In re Marriage of Helsel (4th Dist. 1988) 198 Cal.App.3d 332, 243 Cal.Rptr. 657; see also, People v. McKenzie (1983) 34 Cal.3d 616, 194 Cal.Rptr. 462, 668 P.2d 769 (lawyer makes tactical and strategic decisions such as what witnesses to call, how to conduct examination, choice of jurors, and motions). Civ. Proc. Code § 283 provides in pertinent part that an attorney may bind his client “in any of the steps of an action or proceeding.” Civ. Proc. Code § 283. Civ. Proc. Code § 283, however, does not give the attorney the right to stipulate away his client’s rights without the consent of the client. See People v. Hy-Lond Enterprises, Inc. (1st Dist. 1979) 93 Cal.App.3d 734, 155 Cal.Rptr. 880.

As a general rule, attorneys may not proceed in making decisions that may affect any substantial right or interest of the client without the client’s consent. See Wilson v. Eddy (2nd Dist. 1969) 2 Cal.App.3d 613, 82 Cal.Rptr. 826 (absent express authority an attorney does not have implied plenary authority to enter into contracts on behalf of client); In re Marriage of Helsel (4th Dist. 1988) 198 Cal.App.3d 332, 243 Cal.Rptr. 657 (lawyer had no apparent authority to waive client’s constitutional right to jury trial and agree to submit matter to binding arbitration without approval of client); Alvarado Community Hospital v. Superior Court (4th Dist. 1985) 173 Cal.App.3d 476, 219 Cal.Rptr. 52 (attorney had no authority to bind his client to a compromise settlement of pending litigation without client’s consent); Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal.3d 892, 187 Cal.Rptr. 592, 654 P.2d 775 (an attorney’s authority to bind his client does not permit him to impair or destroy the client’s cause of action or defense). But cf. Buchanan v. Buchanan (2nd Dist. 1979) 99 Cal.App.3d 587, 160 Cal.Rptr. 577 (attorney has right to bind the client in procedural matters arising during an action without the client’s consent).

A failure to obtain client authority or consent may result in disciplinary action and/or malpractice liability where lawyers make decisions beyond their authority to the prejudice of their client’s interests. See generally, Silver v. State Bar (1974) 13 Cal.3d 134, 117 Cal.Rptr. 821, 528 P.2d 1157 (lawyer dismissed client’s appeal without client’s consent); In re Marriage of Helsel (4th Dist. 1988) 198 Cal.App.3d 332, 243 Cal.Rptr. 657 (although opposing party can enforce unauthorized agreement made by attorney, the client has recourse against the lawyer for acting in excess of authority, such as a malpractice suit or State Bar disciplinary action).

1.2:350      Lawyer's Knowledge Attributed to Client

Since the attorney-client relationship is analogous to that of an agent-principal, the general rule that knowledge of the agent is constructive knowledge of the principal is also applicable to the attorney-client context. See Hunter v. Watson (1859) 12 Cal. 363; Mossman v. Superior Court (1st Dist. 1972) 22 Cal.App.3d 706, 99 Cal.Rptr. 638. As such, the attorney’s negligence can be imputed to the client. See Sauer v. Superior Court (4th Dist. 1987) 195 Cal.App.3d 213, 240 Cal.Rptr. 489. Since the rule rests on the assumption that lawyers generally comply with their duty to communicate relevant information to their clients, the fact that the lawyer did not communicate such information to the client is not a defense. Hence, a client is held to constructively know what his or her attorney actually knows and should communicate with him or her. See Lazzarevich v. Lazzarevich (1952) 39 Cal.2d 48, 244 P.2d 1. See generally Mabb v. Stewart (1905) 147 Cal. 413, 81 P. 1073 (letter sent to the attorney regarded as sent to the client); Nelson v. Nelson (3rd Dist. 1933) 131 Cal.App. 126, 20 P.2d 995 (attorney’s actual knowledge of fraudulent character of a sale is the client’s constructive notice thereof); Watson v. Sutro (1890) 86 Cal. 500, 25 P. 64 (knowledge of defects of title acquired by an attorney during negotiations for the purchase of land on behalf of client is constructive notice to the client).

In Lazzarevich for example, a husband received an interlocutory divorce decree in 1932 and was not informed that his attorney obtained entry of a final decree in 1933. See Lazzarevich v. Lazzarevich (1952) 39 Cal.2d 48, 244 P.2d 1 Husband and wife reconciled in 1935 and cohabited without marriage until 1945. In 1938, the husband purchased real property and assigned it to himself and his wife as joint tenants. See id. The wife learned of the final divorce decree in 1945 and notified husband. After wife successfully sued husband to recover value for services rendered during the putative marriage, the husband brought suit to recover an assignment of real property, arguing that he mistakenly believed that he and his wife were still legally married and that he would not have made assignment had he known of the final divorce decree. See Lazzarevich v. Lazzarevich (1952) 39 Cal.2d 48, 244 P.2d 1. The court denied recovery on the theory of mistake because it held that the attorney’s knowledge of the final divorce decree was imputed to the husband. See Lazzarevich v. Lazzarevich (1952) 39 Cal.2d 48, 50, 244 P.2d 1.

An exception to the general rule that the negligence of the attorney is imputed to the client is found in Civ. Proc. Code § 575.2(b). Civ. Proc. Code § 575.2(b) provides in pertinent part that “failure to comply with these rules is the responsibility of counsel and not of the party, and penalty shall be imposed on counsel and shall not adversely affect the party’s cause of action or defense thereto.” Civ. Proc. Code § 575.2. See Moyal v. Lanphear (4th Dist. 1989) 208 Cal.App.3d 491, 256 Cal.Rptr. 296 (Civ. Proc. Code § 575.2 constitutes an exception to the general rule that negligence of an attorney is imputed to the client). Furthermore, even though the knowledge of the lawyer is imputed as the knowledge of the client, only that information the attorney acquires during the course of the particular transaction for which he has been employed by the principal is imputed. See Zirbes v. Stratton (2nd Dist. 1986) 187 Cal.App.3d 1407, 232 Cal.Rptr. 653 (ex-wife could not have constructive notice of appearance by ex-husband’s dissolution attorney in suit against husband and wife after attorney who represented wife in dissolution proceeding received notice of answer). In order for knowledge to be imputed, the attorney must have actual knowledge or at least knowledge of sufficient facts to put a reasonable person on inquiry. See United States v. Beebe (1901) 180 U.S. 343, 45 L.Ed. 563, 21 S.Ct. 371; see also Wittenbrock v. Parket (1894) 102 Cal. 93, 36 P. 374.

1.2:360      Lawyer's Act or Advice as Mitigating or Avoiding Client Responsibility

Under the principles of agency, a lawyer’s actions on behalf of a client are ordinarily attributed to the client. See Suydam v. Pitcher & Poole (1854) 4 Cal. 280; Lopez v. Superior Court (2nd Dist. 1986) 178 Cal.App.3d 925, 223 Cal.Rptr. 798. Under certain circumstances, however, the law permits the client to avoid such attribution, particularly where the lawyer acted incompetently, unlawfully, or against the client’s wishes. See generally, In re Benoit (1973) 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97 (appeal reinstated when criminal defendant asked lawyer to file but lawyer did not do so on time).

In California, there are both judicially created and statutory exceptions to the general rule that the negligence of the attorney is imputed to the client. Beginning with the latter, Civ. Proc. Code § 473 provides in pertinent part that a court may, at its own discretion, “relieve a party or his or her legal representative from a judgment, order, or other proceeding taken against him or her through his mistake, inadvertence, surprise or excusable neglect.” Civ. Proc. Code § 473. See also Palace Hardware Co. v. Smith (1901) 134 Cal. 381, 66 P. 474 (relief from a civil judgment is available on a showing of excusable attorney neglect under Civ. Proc. Code § 473). In addition to Civ. Proc. Code § 473, courts have recognized similar exceptions where the attorney’s neglect amounts to positive misconduct by which the client is effectually and unknowingly deprived of representation, and the client himself is relatively free from negligence. See Carroll v. Abbott Laboratories (1982) 32 Cal.3d 892, 187 Cal.Rptr. 592, 654 P.2d 775. See generally, Lopez v. Superior Court (2nd Dist. 1986) 178 Cal.App.3d 925, 223 Cal.Rptr. 798 (relief available from an attorney’s total failure to represent a client); Sauer v. Superior Court (4th Dist. 1987) 195 Cal.App.3d 213, 240 Cal.Rptr. 489 (attorney’s willfulness shown in failing to comply with court’s discovery order does not constitute “positive misconduct” such that client was “effectually and unknowingly deprived of representation”). These judicial exceptions reveal that courts are reluctant to penalize a litigant on account of some omission on the part of his attorney, particularly where the litigant himself has acted promptly and relied upon the attorney to protect his rights. See generally, Kaslavage v. West Kern County Water Dist. (5th Dist. 1978) 84 Cal.App.3d 529, 148 Cal.Rptr. 729.

Note that there is a distinction between criminal and civil cases regarding relief from counsel’s incompetence. See generally, Strickland v. Washington (1984) 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052 (inadequate assistance of counsel in criminal prosecution as ground for habeas corpus relief). In Kim v. Orellana (2nd Dist. 1983) 145 Cal.App.3d 1024, 193 Cal.Rptr. 827, the court stated that the constitutional right to competent representation at trial in criminal cases has no equivalent in a civil proceeding. In civil cases, the due process clause guarantees the right of a party to appear by counsel retained at his own expense. This does not, however, include the further institutional requirement that competent representation be furnished by counsel since any lack of adequate representation in a civil case cannot be attributed to the state. See, e.g., Santa Cruz Rock Pavement Co. v. Bowie (1894) 104 Cal. 286, 37 P. 934 (erroneous views of the law or advice of an attorney that is contradicted by a ruling of a judge is not sufficient basis for relief); Slemons v. Paterson (1939) 14 Cal.2d 612, 96 P.2d 125 (failure of attorneys to inform client of the necessity of certain evidence); Amestoy Estate Co. v. Los Angeles (2nd Dist. 1907) 5 Cal.App. 273, 90 P. 42 (defendant relied on its attorney’s erroneous opinion that he could not defend water rights action because plaintiff had superior rights); Lennefelt v. Cranston (1st Dist. 1964) 231 Cal.App.2d 171, 41 Cal.Rptr. 598 (mistaken opinion of attorneys regarding the legal effect of designation given to the plaintiffs’ relationship to the deceased); People v. Guinn (Cal. Super. 1983) 149 Cal.App.3d Supp. 1, 196 Cal.Rptr. 696 (defendant relied on erroneous advice of counsel regarding ability to sell alcoholic beverages with caterer’s permit despite fact that general license has been revoked).

1.2:370      Appearance Before a Tribunal

A lawyer who makes an appearance before a tribunal is presumed to represent the person for whom the appearance is made. See McGee v. Superior Court (4th Dist. 1985) 176 Cal.App.3d 221, 221 Cal.Rptr. 421. The presumption of an attorney’s authority to appear is rebuttable. See Title Ins. & Trust Co. v. California Development Co. (1914) 168 Cal. 397, 143 P. 723. The presumption ceases when contrary information comes to the attention of the court. See People v. Brych (3rd Dist. 1988) 203 Cal.App.3d 1068, 250 Cal.Rptr. 402. The presumption may be weighed against the evidence to the contrary by the trier of fact. See Gagnon Co. v. Nevada Desert Inn (1955) 45 Cal.2d 448, 289 P.2d 466. The attorney’s authority may be challenged by the party he or she purports to represent or by the adverse party. See Clark v. Willett (1868) 35 Cal. 534. See generally, Wilson v. Barry (3rd Dist. 1951) 102 Cal.App.2d 778, 228 P.2d 331. However, the party entitled to rebut the presumption must do so promptly to avoid the risk of being estopped to challenge its effect. See Seale v. McLaughlin (1865) 28 Cal. 668; Machado v. Machado (2nd Dist. 1944) 66 Cal.App.2d 401, 152 P.2d 457. The party challenging the authority of the attorney bears the burden of proof and must do so by clear and convincing evidence. See Hunter v. Bryant (1893) 98 Cal. 247, 33 P. 51; Garrison v. McGowan (1874) 48 Cal. 592.

Attorneys who make an unauthorized appearance before a tribunal may be subject to sanctions. B&PC § 6104 provides that anyone who “[c]orruptly or wilfully and without authority [appears] as [an] attorney for a party to an action or proceeding [may be subject to] disbarment or suspension.”

1.2:380      Authority of Government Lawyer

Government attorneys are generally subject to the same rules of professional conduct as are private attorneys. See People ex rel. Younger v. Superior Court (4th Dist. 1978) 86 Cal.App.3d 180, 150 Cal.Rptr. 156 (rules of Professional Conduct are applicable to all members of the State Bar, including district attorneys and their deputies); Ward v. Superior Court (2nd Dist. 1977) 70 Cal.App.3d 23, 138 Cal.Rptr. 532 (county counsel, like all attorneys, are subject to the Rules of Professional Conduct); Chaleff v. Superior Court (2nd Dist. 1977) 69 Cal.App.3d 721, 138 Cal.Rptr. 735 (public defenders and their deputies are subject to the Rules of Professional Conduct no less than other members of the State Bar). CRPC 5-110 specifically addresses some of the duties of government attorneys by providing that government attorneys “shall not institute or cause to be instituted criminal charges when the member knows or should know that the charges are not supported by probable cause.” See CRPC 5-110.

1.2:400   Lawyer's Moral Autonomy

Primary California References:
Background References: ABA Model Rule 1.2(b), Other Jurisdictions
Commentary: Wolfram § 10.4

Although there are no California rules or statutes discussing the topic of a lawyer’s moral authority, California case law is in line with MR 1.2(b). See MR 1.2(b) (a lawyer’s representation of a client does not constitute endorsement of the client’s political, economic, social or moral views or activities). The duty of loyalty a lawyer owes to both his client and the legal system is to represent his client zealously within the bounds of the law. See People v. McKenzie (1983) 34 Cal.3d 616, 194 Cal.Rptr. 462, 668 P.2d 769. See also, People v. Crawford (3rd Dist. 1968) 259 Cal.App.2d 874, 66 Cal.Rptr. 527 (an attorney should represent his client to the hilt, even at the cost of professional fraternalism). Zealousness, however, cannot be construed as requiring a lawyer to invest emotion or personal belief in the client’s cause. See generally, Tool Research and Engineering Corp. v. Henigson (2nd Dist. 1975) 46 Cal.App.3d 675, 120 Cal.Rptr. 291 (attorneys were not liable for malicious prosecution since they were only required to have a reasonable and honest belief that their clients had a tenable claim for which there was a probable cause for representation and were not required to weigh evidence and proceed only if convinced that trier of fact would return judgment in their favor) overruled on other grounds by Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498. Moreover, zealousness requires an attorney to represent his client to the best of his ability, but it does not require that he become insurer of either his client’s self-esteem or his public reputation. A lawyer is not liable for every misunderstanding of his client’s position or responsible for every ambiguity in court proceedings susceptible to interpretation by outsiders. See Zalta v. Billips (2nd Dist. 1978) 81 Cal.App.3d 183, 144 Cal.Rptr. 888 (no breach of fiduciary duty when attorney, who defended plaintiff and other doctors in medical malpractice and successfully negotiated settlement, failed to state in open court that plaintiff was not required to contribute to settlement).

1.2:500   Limiting the Scope of Representation

Primary California References: CRPC 3-400, 3-310
Background References: ABA Model Rule 1.2(c), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 30, Wolfram § 5.6.7

There are no California statutes addressing the issue of whether an attorney may limit the objectives of the representation. In general, there is a rebuttable presumption that absent an indication to the contrary, an attorney retained to conduct a legal proceeding enters into an entire contract to conduct the proceeding to its termination. See Boardman v. Christin (2nd Dist. 1924) 65 Cal.App. 413, 224 P. 97. California case law does, however, seem to permit an attorney to limit the scope of his representation. See Kane, Kane & Kritzer, Inc. v. Altagen, (2nd Dist. 1980) 107 Cal.App.3d 36, 165 Cal.Rptr. 534 (lawyer retained by sophisticated client to send collection letters, but not to file or discuss suit unless requested). See generally C.O.P.R.A.C. Op. 1996-146 (noting that in situations where a client engages in fraudulent conduct the attorney must either withdraw or limit scope of representation to matters that do not involve participation in or furthering the client’s fraud).

Although not addressing the topic directly, CRPC 3-400 provides that an attorney shall not “[c]ontract with a client prospectively limiting the member’s liability to the client for the member’s professional malpractice. . . unless the client is informed in writing that the client may seek the advice of an independent lawyer of the client’s choice regarding the [malpractice] and is given a reasonable opportunity to seek that advice.” CRPC 3-400. See generally Bambic v. State Bar (1985) 40 Cal.3d 314, 219 Cal.Rptr. 489, 707 P.2d 862 (attorney willfully attempting to limit liability to a client for his malpractice in violation of former CRPC 6-102 (1975) (predecessor to CRPC 3-400)). But cf. Donnelly v. Ayer (4th Dist. 1986) 183 Cal.App.3d 978, 228 Cal.Rptr. 764 (a mutual release entered into by an attorney and his former client to settle an existing malpractice suit did not violate former CRPC 6-102 (1975) (predecessor to CRPC 3-400) since former CRPC 6-102 (1975) permits settlement of malpractice claims, and here the attorney entered into the release agreement to settle an existing malpractice claim after the attorney-client relationship had been terminated and the client had consulted several other attorneys). Moreover, the discussion to CRPC 3-400 lends support to an attorney’s ability to limit the scope of representation by providing that it is not intended to “prevent an [attorney] from reasonably limiting the scope of the [his or her] employment or representation.” See CRPC 3-400 (Discussion). See generally Nichols v. Keller (5th Dist. 1993) 15 Cal.App.4th 1672, 19 Cal.Rptr.2d 601 (although recognizing an attorney’s ability to limit representation, court found defendant attorneys liable for failure to advise clients about possible third party claims even though they were retained solely to prosecute client’s workers’ compensation claim).

1.2:510      Waiver of Client or Lawyer Duties (Limited Representation)

Much of the case law regarding the waiver of client or lawyer duties concerns conflicts of interest. CRPC 3-310 provides in general that absent informed written consent, a lawyer is precluded from accepting or continuing representation of a client where there exists potential conflicts of interests. See CRPC 3-310. In the leading case of Maxwell v. Superior Court (1982) 30 Cal.3d 606, 180 Cal.Rptr. 177, 639 P.2d 248, an indigent criminal defendant charged with a capital offense entered into a fee agreement with his attorneys, granting them publication rights in the story of his life, including the criminal matter then pending. The agreement disclosed the potential conflict of interest issues, the extent of the waiver of confidentiality, and the risks inherent in the arrangement. The California Supreme Court found that the defendant made an informed and competent decision to waive his rights through the execution of the advanced blanket waiver of both conflicts of interest and confidentiality. See Maxwell v. Superior Court (1982) 30 Cal.3d 606, 180 Cal.Rptr. 177, 639 P.2d 248. See also C.O.P.R.A.C. Op. 1989-115 (stating that Maxwell, although involving a potential conflict of interest between attorney and client, stands for the general proposition that an advance waiver of both conflict of interest and confidentiality protections is not per se invalid in the context of a potential conflict of interest between one client and another).

With respect to a client waiving his or her right to bring litigation as legal redress for attorney malpractice, attorney-client retainer agreements providing for mandatory binding arbitration of potential malpractice claims against the attorney are legally enforceable and ethically proper. See Lawrence v. Walzer & Gabrielson (2nd Dist. 1989) 207 Cal.App.3d 1501, 256 Cal.Rptr. 6 (despite striking down the attorney-client retainer agreement at issue, court nevertheless upheld the general proposition that there is nothing inherently improper or unethical about arbitration provisions in an attorney-client retainer agreement that has been openly and fairly entered into); C.O.P.R.A.C. Op. 1989-116 (finding that there is no prohibition against an attorney-client retainer agreement requiring arbitration of potential malpractice claims). California has a strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution. See generally Lehto v. Underground Construction Co. (1st Dist. 1977) 69 Cal.App.3d 933, 939, 138 Cal.Rptr. 419. See also Civ. Proc. Code § 1141.10 (declaring that courts should encourage or require the use of arbitration in place of litigation). The agreement to arbitrate malpractice claims does not conflict with CRPC 3-400 which prohibits contracts with clients that prospectively limiting the attorney’s liability to the client for professional malpractice. See generally Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 131 Cal.Rptr. 882, 552 P.2d 1178 (arbitration agreement does not limit an attorney’s duty to use reasonable care nor limit liability, but merely selects the forum in which liability will be determined).

1.2:600   Prohibited Assistance

Primary California References: CRPC 3-210, 3-700, B&PC §§ 6068, 6106
Background References: ABA Model Rule 1.2(d), Other Jurisdictions
Commentary: ABA/BNA § 31:301, ALI-LGL § 151, Wolfram § 13.3

CRPC 3-210 prohibits a bar member in general terms from advising ”the violation of any law, rule or ruling of a tribunal”). B&PC § 6068(c) makes it the duty of an attorney to “counsel or maintain such actions, proceedings or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.” B&PC § 6068(c). The exception for criminal defense is apparently intended to protect the constitutional rights of criminal defendants, e.g., the right to testify and protection against self-incrimination; but criminal defense lawyers must take care not to facilitate a crime. See People v. Pic’l (1982) 31 Cal.3d 731, 183 Cal.Rptr. 685, 646 P.2d 847 (lawyer guilty of various crimes when he attempted to negotiate the return of stolen property in exchange for the owner’s agreement not to report its theft); People v. Meredith (1981) 29 Cal.3d 682, 175 Cal.Rptr. 612, 631 P.2d 46 (criminal defense lawyer must turn over physical evidence of crime to prosecutor after learning of the property’s location from the client).

CRPC 3-210 allows an attorney to take appropriate steps in good faith to test the validity of any law, rule, or ruling of a tribunal where he or she believes in good faith that such law, rule or ruling is invalid. Thus in Maness v. Meyers (1975) 419 U.S. 449, 42 L.Ed 2d 574, 95 S.Ct. 584, the Supreme Court held that an attorney may not be punished for counselling a client to violate a court order in a good faith effort to appeal a constitutional claim.

Aside from counseling criminal conduct, an attorney is under a duty “not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.” B&PC § 6068(g). See Sorensen v. State Bar (1991) 52 Cal.3d 1036, 277 Cal.Rptr. 858, 804 P.2d 44 (attorney was motivated by spite and vindictiveness in violation of B&PC § 6068(g) when he filed fraud and deceit action against court reporter over a $94.05 fee billing dispute for a court transcript).

An attorney's violation of law can subject him or her to discipline, even if the violation is not connected to the attorney's practice of law. Under B&PC § 6106, the commission of any act involving “moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.” See B&PC § 6103 (providing as a ground for disbarment or suspension any violation of the oath taken by the attorney or of the attorney’s duties); In re Weber (1976) 16 Cal.3d 578, 128 Cal.Rptr. 434, 546 P.2d 1378, (attorney disbarred for soliciting a client to offer a bribe). The Weber court found that the attorney’s misconduct involved moral turpitude and gave great weight to the disciplinary board’s recommendation of disbarment. The court noted that the attorney’s age, many years in the profession, and lack of prior disciplinary record were not, in themselves, sufficient to mitigate the sanction of disbarment since disbarment is not reserved for those attorneys with prior records of discipline. Moreover, the court added that the attorney’s years of experience should have taught him not to participate in misconduct.

Ignorance of the rules of professional conduct is no defense to discipline. See Ainsworth v. State Bar (1988) 46 Cal.3d 1218, 252 Cal.Rptr. 267, 762 P.2d 431. Similarly, a lawyer’s assistance in unlawful conduct is not excused by a failure to inquire into the client’s objectives. See In re Bloom (1987) 44 Cal.3d 128, 241 Cal.Rptr. 726, 745 P.2d 61 (lawyer disbarred for aiding client in transporting plastic explosives to Libya; court rejected argument that lawyer believed in good faith that transport of explosives was authorized by National Security Council because client gave attorney a supposed NSC medallion).

1.2:610      Counseling Illegal Conduct [see also, 1.2:600]

A lawyer may not aid or counsel his client in criminal behavior. See CRPC 3-210; B&PC § 6068. Thus, attorneys may not commit misconduct to further a client’s interest. See In re Young (1989) 49 Cal.3d 257, 261 Cal.Rptr. 59, 776 P.2d 1021 (aiding a client who was a wanted fugitive, while at same time counseling the client to surrender to authorities). In other instances, an attorney violates rules of professional conduct solely by giving advice and without otherwise assisting the client’s misconduct. See Snyder v. State Bar (1976) 18 Cal.3d 286, 133 Cal.Rptr. 864, 555 P.2d 1104 (advising clients not to appear for their depositions notwithstanding court order); Hawk v. Superior Court of Solano County (1st Dist. 1974) 42 Cal.App.3d 108, 116 Cal.Rptr. 713 (attorney held in contempt of court for instructing his client to disobey a court order directing the client to provide handwriting exemplars to the prosecution); Werner v. State Bar (1944) 24 Cal.2d 611, 150 P.2d 892 (suggesting payment of a bribe); Waterman v. State Bar (1936) 8 Cal.2d 17, 63 P.2d 1133 (advising a client not to appear in court after being served with a subpoena). See also section 3.3:310 (fraud on tribunal; client perjury).

1.2:620      Assisting Client Fraud

Equally unethical and violative of CRPC 3-210 and B&PC § 6068 is an attorney’s assistance with a client’s frauds. See In re Aquino (1989) 49 Cal.3d 1122, 264 Cal.Rptr. 833, 783 P.2d 192 (encouraging clients to engage in “sham” marriages, to submit falsified death certificates, and to respond falsely to immigration authorities); Townsend v. State Bar (1948) 32 Cal.2d 592, 197 P.2d 326 (advising a client to convey property for purpose of defrauding creditors); In re Allen (1959) 52 Cal.2d 762, 344 P.2d 609 (soliciting others to commit perjury); Green v. State Bar (1931) 213 Cal. 403, 2 P.2d 340 (false testimony by attorney, and silence during false testimony by client); State Bar v. Jones (1929) 208 Cal. 240, 280 P. 964 (advice to defendants in criminal case to raise fabricated defense by false testimony).

Under B&PC § 6068, information about client misconduct imparted to a lawyer in the course of the lawyer-client relationship or which is involved in the representation of a client may not be disclosed by the attorney. See B&PC § 6068(d); C.O.P.R.A.C. Op. 1988-96. While a lawyer may not disclose a client’s fraudulent conduct, the lawyer also may not participate in or further such conduct. See In re Young (1989) 49 Cal.3d 257, 261 Cal.Rptr. 59, 776 P.2d 1021 (court held that the lawyer had a duty not to further this client’s misconduct by helping client avoid arrest). If the client does not refrain from fraudulent conduct, the lawyer must either limit the scope of representation to matters that do not involve participation in or further the client’s fraud, or withdraw. Thus, under CRPC 3-700(B)(2) withdrawal is mandatory when a lawyer “knows or should know that continued employment will result in violation. . . of [the] rules or of the State Bar Act.” CRPC 3-700(B)(2).

CRPC 3-210 recognizes a lawyer’s right to “take appropriate steps in good faith to test the validity of any law, rule or ruling of a tribunal.” CRPC 3-210. The nature of the attorney-client relationship is such that “attorneys have a high obligation to represent and protect the interests of their clients zealously and to that end may properly challenge the validity of any law or decision.” See Wolfrich Corp. v. United Services Auto. Ass’n (1st Dist. 1983) 149 Cal.App.3d 1206, 1211, 197 Cal.Rptr. 446 overruled on other grounds by Doctor’s Co. v. Superior Court (1989) 49 Cal.3d 39, 260 Cal.Rptr. 183, 775 P. 2d 508. See also Maness v. Meyers (1975) 419 U.S. 449, 42 L.Ed 2d 574, 95 S.Ct. 584 (no contempt where lawyer advised client to refuse to testify in order to provide contempt order as basis for immediate appellate review of ruling on claim of privilege against self-incrimination); Hughes v. Superior Court of Solano County (1st Dist. 1980) 106 Cal.App.3d 1, 164 Cal.Rptr. 721 (no contempt where public defender refused order to participate in jury selection on the ground that his unpreparedness would result in denial of the accused’s constitutional right to adequate representation at trial). However, although an attorney can test the validity of a ruling in good faith, he or she has a duty to yield to the rulings of the court whether right or wrong. If the ruling is adverse, the attorney does not have the right to resist it but only to preserve the point on appeal. See Hawk v. Superior Court of Solano County (1st Dist. 1974) 42 Cal.App.3d 108, 126-27, 116 Cal.Rptr. 713; People v. McKenzie (1983) 34 Cal.3d 616; 194 Cal.Rptr. 462, 668 P.2d 769; EC 7-22; CRPC 3-210. An attorney needs to carefully balance his or her duty to follow the ruling of a court with his or her duty to advocate zealously.

1.2:630      Counseling About Indeterminate or Uncertain Law

CRPC 3-210 recognizes a lawyer’s right to “take appropriate steps in good faith to test the validity of any law, rule or ruling of a tribunal.” CRPC 3-210. The nature of the attorney-client relationship is such that “attorneys have a high obligation to represent and protect the interests of their clients zealously and to that end may properly challenge the validity of any law or decision.” See Wolfrich Corp. v. United Services Auto. Ass’n (1st Dist. 1983) 149 Cal.App.3d 1206, 1211, 197 Cal.Rptr. 446 overruled on other grounds by Doctor’s Co. v. Superior Court (1989) 49 Cal.3d 39, 260 Cal.Rptr. 183, 775 P.2d 508. See also Maness v. Meyers (1975) 419 U.S. 449, 42 L.Ed 2d 574, 95 S.Ct. 584 (no contempt where lawyer advised client to refuse to testify in order to provide contempt order as basis for immediate appellate review of ruling on claim of privilege against self-incrimination); Hughes v. Superior Court (1st Dist. 1980) 106 Cal.App.3d 1, 164 Cal.Rptr. 721 (no contempt where public defender refused order to participate in jury selection on the ground that his unpreparedness would result in denial of the accused’s constitutional right to adequate representation at trial). However, although an attorney can test the validity of a ruling in good faith, he or she has a duty to yield to the rulings of the court whether right or wrong. If the ruling is adverse, the attorney does not have the right to resist it but only to preserve the point on appeal. See Hawk v. Superior Court of Solano County (1st Dist. 1974) 42 Cal.App.3d 108, 126-27, 116 Cal.Rptr. 713; People v. McKenzie (1983) 34 Cal.3d 616, 194 Cal.Rptr. 462, 668 P.2d 769; EC 7-22; CRPC 3-210. An attorney needs to carefully balance his or her duty to follow the ruling of a court with his or her duty to advocate zealously.

Where law on a particular subject is doubtful or debatable, an attorney will not be held responsible for failing to anticipate the manner in which the uncertainty will be resolved. See Smith v. Lewis (1975) 13 Cal.3d 349, 358-359, 118 Cal.Rptr. 621, 530 P.2d 589 (lawyer who inadequately researched into unsettled area of law and thus was unable to exercise informed judgment to which client was entitled and therefore was liable for legal malpractice) overruled on other grounds by In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561. Liability for legal advice in an uncertain area of the law is limited by the “Judgment Immunity Rule.” The test for immunity is two pronged: (1) whether the state of the law was unsettled at the time the professional advice was rendered; and (2) whether that advice was based upon the exercise of an informed judgment. See Davis v. Damrell (1st Dist. 1981) 119 Cal.App.3d 883, 174 Cal.Rptr. 257 (lawyer who represented woman in dissolution of marriage proceeding was not liable for malpractice when he advised her about uncertain area of law regarding federal military retirement benefits that was later clarified in a California Supreme Court case). Informed judgment requires an attorney to conduct reasonable research “in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an intelligent assessment of the problem.” Smith v. Lewis (1975) 13 Cal.3d 349, 358-359, 118 Cal.Rptr. 621, 530 P.2d 589 overruled on other grounds by In re Marriage of Brown (1976) 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561. However, a lawyer may be disciplined for representing client in field in which lawyer has no experience and without associating or consulting a sufficiently experienced attorney. See Lewis v. State Bar (1981) 28 Cal.3d 683, 170 Cal.Rptr. 634, 621 P.2d 258 (attorney found liable for legal malpractice when he negligently and improperly conducted administration of estate without any probate experience and without associating or consulting a sufficiently experienced attorney in this specialized legal field).

1.2:700   Warning Client of Limitations on Representation

Primary California References:
Background References: ABA Model Rule 1.2(e), Other Jurisdictions
Commentary: ABA/BNA § 31:307, ALI-LGL § 165,

There is no CRPC provision that parallels MR 1.2(e) or addresses directly the topic of a lawyer limiting the conduct of representation due to ethical strictures. CRPC 3-500 and B&PC § 6068(m) require an attorney to keep clients reasonably informed about significant developments relating to the representation, which implicitly mandates such disclosure. See CRPC 3-500; B&PC § 6068(m). Additionally, CRPC 3-700(B)(2) requires that an attorney withdraw from representation where the attorney “knows or should know that continued employment will result in violation of [the CRPC] or of the State Bar Act.” See CRPC 3-700(B)(2); see also C.O.P.R.A.C. Op. 1996-146 (suggesting that where a client does not refrain from fraudulent conduct, an attorney must either limit scope of representation to matters that do not involve participation in or furtherance of the client’s fraud or withdraw).

1.2:800   Identifying to Whom a Lawyer Owes Duties

Primary California References: CRPC 3-310, 3-600, 3-700, B&PC § 6068
Background References: ABA Model Rule 1.2, Other Jurisdictions
Commentary: ABA/BNA § 31:101, ALI-LGL §§ 72, 73, 155, 156A, Wolfram § 7.2

Although many attorney-client relationships are of the traditional type involving a single individual seeking and paying for legal assistance on his or her own behalf, there also exists other types of attorney-client relationships involving multiple clients, organizational clients, and fiduciaries or beneficiaries. In addition to these clients for which an attorney owes a duty of loyalty and fidelity, an attorney owes duties to prospective clients as well. [See 1.2:810, Prospective Clients, infra]. With respect to situations where a person pays for the representation of another, an attorney has duties to both the person paying for the representation and the person receiving the representation. [See 1.2:820, Persons Paying for Representation of Another, infra]. Similarly, where an attorney represents a fiduciary, such as in the trust context, the attorney assumes a relationship with the beneficiary akin to that between the trustee and beneficiary. [See 1.2:840 Representing a Fiduciary, infra]. Where an attorney represents an entity, such as a corporation, the attorney represents and owes a fiduciary duty to the organization and not its officers, stockholders, directors, or employees. [See 1.2:830 Representing an Entity, infra]. Finally, in the class action context, an attorney has an obligation of undivided loyalty not only to the named plaintiffs, but also to each unnamed member of the plaintiff class. [See 1.2:850, Class Action Clients, infra].

1.2:810      Prospective Clients [see also 1.2:220]

A lawyer has fiduciary duties to a person who consults with the lawyer concerning legal representation, even though no actual retention of the lawyer is made or payment of legal fees is paid. See Beery v. State Bar (1987) 43 Cal.3d 802, 239 Cal.Rptr. 121, 739 P.2d 1289. Such fiduciary duties includes a lawyer’s duty of reasonable care to a prospective client. See Meighan v. Shore (2nd Dist. 1995) 34 Cal.App.4th 1025, 1046, 40 Cal.Rptr.2d 744. This duty of reasonable care requires that an attorney, pursuant to B&PC § 6068(e), maintain inviolate the confidence, and at every peril to herself to preserve the secrets, of her client. See People v. Canfield (1974) 12 Cal.3d 699, 117 Cal.Rptr. 81, 527 P.2d 633 (any information acquired by the attorney during the course of initial consultation, regardless of actual engagement, is privileged). For further discussion on an attorney’s duties to prospective clients, [see 1.2:220 Lawyer’s Duties to Client in General, supra].

1.2:820      Persons Paying for Representation of Another [see also 1.7:400]

The situation where a person pays for the representation of another most often occurs in the insurance context. Under CRPC 3-310(F), an attorney may not accept compensation for representing a client from one other than the client unless: (1) there is no interference with the attorney’s independence of professional judgment or with the attorney-client relationship; (2) information relating to representation of the client is protected; and (3) the attorney obtains the client’s informed written consent. See CRPC 3-310(F). CRPC 3-310(F) is not intended to abrogate an insurer’s duty to provide legal counsel for its insured under an insurance contract. See generally San Diego Navy Federal Credit Union v. Cumis Insurance Society (4th Dist. 1984) 162 Cal.App.3d 358, 208 Cal.Rptr. 494.

The general rule is that attorneys hired by their primary client to represent third parties owe a fiduciary duty to the third party they are retained to protect. See Fox v. Pollack (1st Dist. 1986) 181 Cal.App.3d 954, 226 Cal.Rptr. 532. Thus in the insurance context, an attorney selected by the insurance carrier owes the same obligation of good faith to the insured as that owed by an attorney personally retained by the client, and is affected by the scope of his or her representation. See American Mut. Liability Ins. Co. v. Superior Court (3rd Dist. 1974) 38 Cal.App.3d 579, 113 Cal.Rptr. 561. See generally Zalta v. Billips (2nd Dist. 1978) 81 Cal.App.3d 183, 144 Cal.Rptr. 888 (an attorney hired by a doctor’s insurance carrier to defend the doctor against malpractice charges owed a fiduciary duty to both the carrier and the doctor). The attorney’s primary duty is to further the best interests of the insured. See Purdy v. Pacific Automobile Ins. Co. (2nd Dist. 1984) 157 Cal.App.3d 59, 203 Cal.Rptr. 524. Where a conflict develops between an insurer and its insured, the insurer’s attorney must either withdraw from representation of the insurer or make full disclosure to both clients, otherwise the attorney will risk liability for harm resulting from his failure to so act, as well as legal malpractice liability. See Purdy v. Pacific Automobile Ins. Co. (2nd Dist. 1984) 157 Cal.App.3d 59, 203 Cal.Rptr. 524.

1.2:830      Representing an Entity [see also 1.13:200]

Under CRPC 3-600, in representing an organization, “an attorney must conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement.” CRPC 3-600(A). Thus, a lawyer for an entity does not thereby become attorney for its officers, directors, managers, shareholders, investors or partners. See Meehan v. Hopps (1st Dist. 1956) 144 Cal.App.2d 284, 301 P.2d 10. However, an attorney representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to disclosure and where required, informed written consent from the organization. See CRPC 3-600(E).

If an attorney acting on behalf of the organization knows that an actual or apparent agent of the organization acts or intends or refuses to act in a manner that is or may be a violation of law reasonably imputable to the organization, or in a manner which is likely to result in substantial injury to the organization, the attorney shall not violate his or her duty of protecting all confidential information as provided by statute. Subject to this duty to protect information, an attorney may take action as appears to the attorney to be in the best lawful interest of the organization. See CRPC 3-700(B). Such action may include “urging reconsideration of the matter while explaining its likely consequences to the organization, or referring the matter to the next higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest internal authority that can act on behalf of the organization.” CRPC 3-600(B).

If despite these actions, the highest authority that can act on behalf of the organization insists upon action or a refusal to act that is a violation of law and is likely to result in substantial injury to the organization, the attorney’s response is limited to the attorney’s right, and, where appropriate, duty to resign. See CRPC 3-600(C).

In dealing with the corporation, an attorney must refrain from taking part in controversies among shareholders as to its control, and when his opinion is sought he must give it without bias or prejudice. See Goldstein v. Lees (2nd Dist. 1975) 46 Cal.App.3d 614, 120 Cal.Rptr. 253. See generally Woods v. Superior Court (5th Dist. 1983) 149 Cal.App.3d 931, 197 Cal.Rptr. 185 (attorney who had represented and continued to represent a family corporation was not permitted to represent the husband in a marriage dissolution action, absent the wife’s consent or waiver).

In dealing with an organization’s directors, officers, employees, members, shareholders, or other constituents, the attorney must “explain the identity of the client for whom the [attorney] acts, whenever it is or becomes apparent that the organization’s interests are or may become adverse to those of the [constituent(s)] with whom the [attorney] is dealing.” CRPC 3-600(D). The attorney may not mislead the constituent into believing that the constituent may communicate confidential information to the attorney in a way that will not be used in the organization’s interest if that is, or becomes adverse to, the constituent. See CRPC 3-600(D). For further discussion on the representation of an entity, [see 1.13:200 Entity as Client, supra].

1.2:840      Representing a Fiduciary [see also 1.13:520]

Attorney representation of a fiduciary most often occurs in the trusts contexts. In the trusts context, an attorney representing a trustee assumes a relationship with the beneficiary akin to that between trustee and beneficiary. See Fox v. Pollack (1st Dist. 1986) 181 Cal.App.3d 954, 961, 226 Cal.Rptr. 532. Thus, an attorney can be liable for negligence to the intended beneficiaries or heirs. See Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16 (involving notary public who prepared invalid will); Lucas v. Hamm (1961) 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685 (applying Biakanja) Biakanja established a six-fold test for expanding the concept of privity beyond the confines of the attorney-client relationship to include beneficiaries. The Biakanja court held that the “determination whether in a specific case defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the plaintiff’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.” Biakanja v. Irving (1958) 49 Cal.2d 647, 320 P.2d 16. Lucas added the additional factor of whether the recognition of liability to beneficiaries of wills negligently drawn by attorneys would impose an undue burden on the profession. See Lucas v. Hamm (1961) 56 Cal.2d 583, 15 Cal.Rptr. 821, 364 P.2d 685.

However, an attorney has no duty to potential beneficiaries or unidentified beneficiaries. See Radovich v. Locke-Paddon (6th Dist. 1995) 35 Cal.App.4th 946, 41 Cal.Rptr.2d 573 (defendant attorney not liable to potential beneficiary on theory of dilatory and negligent preparation of a will where client had died without executing the will); Ventura County Humane Soc. v. Holloway (1st Dist. 1974) 40 Cal.App.3d 897, 115 Cal.Rptr. 464. In Ventura County Humane Soc., testator wanted his will drafted to benefit charities devoted to the preservation of animals. One of the named beneficiaries of the will was “Society for the Prevention of Cruelty to Animals (Local or National).” In the probate proceedings, both the local and national societies litigated for a share of the will, culminating in a settlement. Thereafter, the local society sued the attorneys for negligently drafting the ambiguous language of the will. The local society argued that the attorneys owed a duty to the class of potential beneficiaries to investigate, determine the true intention of the testator, and draft an unambiguous will. The court concluded, however, that even if the attorneys were negligent, the local society could not prevail because it could not produce any evidence that it was the intended beneficiary. See Ventura County Humane Soc. v. Holloway (1st Dist. 1974) 40 Cal.App.3d 897, 115 Cal.Rptr. 464.

1.2:850      Class Action Clients

The CRPC do not address the topic of an attorney’s duty to class action clients. California case law is equally scarce on this topic. In general, however, an attorney for a class in a class action suit has an obligation of undivided loyalty not only to the named plaintiffs, but also to each unnamed member of the class. See generally Cal Pak Delivery, Inc. v. United Parcel Service, Inc. (1st. Dist. 1997) 52 Cal.App.4th 1, 60 Cal.Rptr.2d 207 (citing Palumbo v. Tele-communications, Inc. (D.D.C. 1994) 157 F.R.D. 129, 132-133). Furthermore, in the class action context, the court has an obligation to “closely scrutinize the qualifications of counsel to assure that all interests, including those of as yet unnamed plaintiffs, are adequately represented. This is because in certifying a class action, the court confers on absent persons the status of litigants and creates an attorney-client relationship between those persons and a lawyer or group of lawyers. Precisely because of the responsibility to absent class members, counsel’s qualifications in the class action context are subject to a heightened standard.” Palumbo v. Tele-communications, Inc. (D.D.C. 1994) 157 F.R.D. 129. Thus, in Cal Pak Delivery, Inc., plaintiff’s attorney in a class action suit was properly disqualified for conflict of interest and breach of his fiduciary duties to the client when he secretly contacted defendant and offered to dismiss plaintiff’s action or forego filing a valid cause of action in return for payment of fees directly to himself. See Palumbo v. Tele-communications, Inc. (D.D.C. 1994) 157 F.R.D. 129.