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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.

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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

VI. PUBLIC SERVICE

6.1   Rule 6.1 Pro Bono Public Service

6.1:100   Comparative Analysis of CA Rule

Primary California References: B&PC 6068(h)
Background References: ABA Model Rule 6.1, Other Jurisdictions
Commentary:

6.1:101      Model Rule Comparison

No disciplinary rule in California requires or suggests that an attorney provide pro bono legal services, and California has no statutory counterpart to MR 6.1. B&PC 6068(h) is the only state code section that is theoretically relevant to the topic of pro bono work. Under B&PC 6068(h), it is the duty of every lawyer "never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed."

The State Bar's Board of Governors urges all California lawyers to give at least 50 hours of pro bono services annually to the indigent. No disciplinary rule requires such service. A 1990 study found that only 10% of California lawyers donate any time to pro bono programs serving the poor, and, among those, the average hours contributed per year was less than 30. Forgetting the Poor, Calif. Lawyer 17-18 (May 1990). B&PC 6021-6228 embodies the state's IOLTA program which collects and distributes funds for legal services for the poor. In fiscal year 1997, grants from the State Bar of IOLTA funds for legal services to indigent Californians amounted to approximately $10.3 million. Nation's Top Court to Decide IOLTA Fate, California Bar Journal, (Oct. 1997). California does require that the standard of professionalism owed to a pro bono client be no different than that owed to any other client. Segal v. State Bar (1988) 44 Cal.3d 1077, 1084, 751 Cal.Rptr. 404, 245 P.2d 463.

California decisions combine an assertion of a moral duty to accept court appointments with a reluctance to coerce lawyers into providing services. Arnelle v. City and County of San Francisco (1st Dist. 1983) 141 Cal.App.3d 693, 696, 190 Cal.Rptr. 490, was an action by an attorney, appointed by the court to represent an indigent defendant in a murder trial, alleging quantum meruit and breach of contract in an attempt to recover fees of nearly $40,000. "Reasonable" fees are authorized in these circumstances by Pen. Code 987.2. The court found that, because an attorney is not entitled to compensation for the defense of indigent criminal defendants absent statutory authorization, the attorney could "not sue for compensation, based on contract or quasi-contract, unless such a cause of action is specifically created by statute." In the same vein, the court went on to say that "absent statutory authorization, an appointed attorney must serve gratuitously in accordance with [the duty expressed in B&PC 6068(h)]."

Arnelle was distinguished in Gilbert v. Superior Court (1st Dist. 1985) 169 Cal.App.3d 148, 215 Cal.Rptr 305, which also involved a claim for reasonable compensation under Pen. Code 987.2. At the time counsel was appointed, his fees were set at $75 per hour and $750 per day of trial but were reduced following the trial from approximately $78,000 to less than $40,000. The appellate court issued a writ vacating the trial court's order reducing the fees. The Arnelle court determined that since the attorney's fees were statutory, the lawyer could not maintain a quasi-contract or contract action. Gilbert allowed the attorney's contract based claim because the fees were agreed upon in advance. Gilbert acknowledged Arnelle's recognition that if court and counsel agreed upon fees in advance, a contract action is available. Gilbert, 169 Cal.App.3d at 157 (citing Arnelle, 141 Cal.App.3d at 696-97).

Amarawansa v. Superior Court (2nd. Dist. 1996) 49 Cal.App.4th 1251, 57 Cal.Rptr.2d 249, split the law even further in this area by differentiating between the contract in Gilbert and a memorandum issued by the Los Angeles Superior Court establishing attorneys' rates in juvenile dependency cases. The court did not allow recovery of fees based upon the memorandum and distinguished it from the contract in Gilbert on various grounds including: 1) the memorandum was not a court order of appointment, 2) the memorandum did not specify a period of time in which it was in effect, and, 3) the history of the compensation rates indicated that the fee arrangement was subject to change.

Prior to 1941, there was no statutory provision for compensation of court appointed counsel even for cases involving indigents in criminal actions. Prior to 1941, reliance was placed only on B&PC 6068(h) for securing pro bono counsel for indigent defendants. See Hill v. Superior Court (1956) 46 Cal.2d 169, 293 P.2d 10.

Compare Arnelle and its related cases to the later appellate court decision of Cunningham v. Superior Court (2nd Dist. 1986) 177 Cal.App.3d 336, 222 Cal.Rptr. 854, regarding appointment of counsel to represent an indigent in a civil case. The court held that requiring counsel to serve without a fee is a denial of equal protection of the law. The petitioner had been ordered by the court to represent an indigent defendant in a paternity case and was held in contempt when he refused the appointment. The court distinguished Cunningham from the earlier case law which required appointed counsel in civil cases to serve without compensation. See Cunningham, 177 Cal.App3d at 352 (disapproving Fresno County v. Superior Court (5th Dist. 1978) 82 Cal.App.3d 191, 146 Cal.Rptr. 880 (court not required to pay counsel appointed to represent indigent prisoners in civil actions) and County of Tulare v. Ybarra (5th Dist. 1983) 143 Cal.App.3d 580, 192 Cal.Rptr. 49 (appointed counsel must serve gratuitously in paternity case)). Specifically, Cunningham found that the earlier case law failed to analyze the constitutional issues at hand. Cunningham, 177 Cal.App.3d at 352.

In Bradshaw v. U.S. District Court for Southern Dist. of California (9th Cir. 1984) 742 F.2d 515, 518, the court found no abuse of discretion in the trial court's refusal to coerce lawyer's services after none of over twenty lawyers contacted would volunteer to handle an employment discrimination case. The lawyers' refusal was based on lack of statutory provision for compensation, the client's litigious reputation, and the complexity of issues. In addition, the lawyers declining the case were concerned about jeopardizing their malpractice insurance coverage as the plaintiff apparently had a reputation for publicly questioning the competency of her attorneys. Additionally, there was concern regarding possible disciplinary proceedings before the State Bar based on the lawyers' assessment of the plaintiff's claims. The court found that these concerns were properly considered by the district court as part of its decision whether to appoint counsel. The court was, however, concerned with the lawyers' lack of enthusiasm, because "part of the public service obligation of the bar is the performance of pro bono work." The court opined that "failure to come forward to assist indigent litigants at the request of the court" indicates "loss of professionalism," violates the spirit of the Model Code and "may also be a violation of section 6068" of the B&PC.

Finally, Civ. Proc. Code 285.4 allows courts to appoint counsel to represent indigent clients without compensation upon a showing of good cause when a "reduction in public funding for legal service materially impairs a legal service agency attorney's ability to represent an indigent client" and that attorney is permitted to withdraw. Civ. Proc. Code 285.2 The legal service attorney may only withdraw upon showing that "(a) there are not adequate public funds to continue the effective representation of the indigent client," "(b) a good faith effort was made to find alternative representation for such client," and "(c) all reasonable steps to reduce the legal prejudice to the client have been taken." The court may take into consideration any number of factors when determining whether "good cause" exists, including:

"(a) the probable merit of the client's claim; (b) the client's financial ability to pay for legal services; (c) the availability of alternative legal representation; (d) the need for legal representation to avoid irreparable legal prejudice to the indigent client; (e) the ability of appointed counsel to effectively represent the indigent client; (f) present and recent pro bono work of the appointed attorney, law firm or private law corporation; (g) the ability of the indigent client to represent himself; (h) the workload of the appointed attorney."

Civ. Proc. Code 285.4.

6.1:102      Model Code Comparison

California's approach to pro bono legal services is similar to that found in EC 2-25. There is no specific requirement, but a strong element of persuasion, that the lawyer should render a certain amount of pro bono services. California does not have a pro bono requirement although the State Bar encourages its members to provide pro bono legal services and the state has a functioning program for use of IOLTA funds to provide legal services for the poor.

At least one legislative attempt has been made in the past to require California attorneys to provide pro bono services. In 1976, Assembly Bill 4050 was introduced by California Assemblyman Knox which would have required attorneys to perform 40 hours of pro bono services per year as a condition of retaining their license to practice. See Pro Bono Legal Services: The Objections and Alternatives to Mandatory Programs, 53 Calif. Bar Jrnl. 24 (1978). This bill was defeated.

In addition, in 1984 the California Attorney General encouraged lawyers employed by the California Attorney General to participate in legal service programs. Memorandum and attachments from John Van de Kamp, Attorney General of California, to All Attorneys, re Pro Bono Policy (September 19, 1984) (cited in, Symposium on Mandatory Pro Bono: Public Service by Public Servants 19 Hofstra L. Rev. 1141, 1157 (1991)).         

California does recognize pro bono work as a mitigating factor in disciplinary settings. Rose v. State Bar (1989) 49 Cal.3d 646, 667, 262 Cal.Rptr. 702, 779 P.2d 761; In Re Spaith (Review Dept. 1996) 3 Cal. State Bar Ct. Rptr. 511; In Re Brown (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 309.

6.1:200   Lawyer's Moral Obligation to Engage in Public Interest Legal Service

Primary California References:
Background References: ABA Model Rule 6.1, Other Jurisdictions
Commentary: ABA/BNA 91:6001, ALI-LGL , Wolfram 16.9

[See 6.1:101 Model Rule Comparison, supra ; 6.1:102 Model Code Comparison, supra.]

6.2   Rule 6.2 Accepting Appointments

6.2:100   Comparative Analysis of CA Rule

Primary California References: B&PC 6068(h)
Background References: ABA Model Rule 6.2, Other Jurisdictions
Commentary:

6.2:101      Model Rule Comparison

B&PC 6068(h), construed literally, requires more from California attorneys than MR 6.2. B&PC 6068(h) does not allow an attorney to refuse an appointment for any personal consideration including, presumably, the factors listed in MR 6.2.

Additionally, Civ. Proc. Code 285.4 allows courts to appoint counsel to represent indigent clients without compensation upon a showing of good cause in circumstances where legal services are no longer available because of funding problems. [See 6.1:101 Model Rule Comparison, supra, for a more detailed analysis].

6.2:102      Model Code Comparison

B&PC 6068(h) bears similarities to EC 2-27 in that both charge the attorney with putting aside personal considerations in favor of representing the indigent or unpopular client or cause. California law seems to part from the Model Code with regard to EC 2-29 which does not regard the identity of the potential client or the belief of the lawyer regarding the merits of the case as compelling reasons to avoid appointment by the court. Bradshaw v. U.S. District Court for Southern Dist. of California (9th Cir. 1984) 742 F.2d 515, 518 clearly considered both of these factors in determining that it was not an abuse of the trial court's discretion to refuse to appoint counsel after more than twenty lawyers refused to volunteer to handle an employment discrimination case.

6.2:200   Duty to Accept Court Appointments Except for Good Cause

Primary California References: B&PC 6068(h)
Background References: ABA Model Rule 6.2, Other Jurisdictions
Commentary: ABA/BNA 91:6201, ALI-LGL 26, Wolfram 16.9

B&PC 6068(h) does not allow a lawyer to refuse such an appointment for "good cause." In Arnelle v. City and County of San Francisco (1st Dist. 1983) 141 Cal.App.3d 693, 696, 190 Cal.Rptr. 490, the court, in dictum, construed B&PC 6068(h) literally by stating "absent statutory authorization, an appointed attorney must serve gratuitously in accordance with [the duty expressed in B&PC 6068(h)]." However, this was an action by an attorney to recover reasonable fees, authorized under Pen. Code 987.2, for defending an indigent in a murder trial. The court found that because a lawyer is not entitled to compensation for the defense of indigent criminal defendants absent statutory authorization, the lawyer could "not sue for compensation, based on contract or quasi-contract, unless such a cause of action is specifically created by statute." Arnelle, 141 Cal.App.3d at 697.

Cunningham v. Superior Court (2nd Dist. 1986) 177 Cal.App.3d 336, 222 Cal.Rptr. 854 came to a different result in a determination of whether appointed counsel is required to serve gratuitously to defend an indigent in a civil paternity suit. The court held that requiring counsel to serve without a fee is a denial of equal protection of the law. The court distinguished Cunningham from the earlier case law which required appointed counsel in civil cases to serve without compensation. Cunningham, 82 Cal.App.3d at 352 (disapproving County of Fresno v. Superior Court (5th Dist. 1978) 82 Cal.App.3d 191, 147 Cal.Rptr. 294 (court not required to pay counsel appointed to represent indigent prisoners in civil actions) and County of Tulare v. Ybarra (5th Dist. 1983) 143 Cal.App.3d 580, 192 Cal.Rptr 49 (appointed counsel must serve gratuitously in paternity case)). The court based its decision, in part, on the assertion that if the state intends to prosecute paternity cases, it must bear the expenses, including attorneys' fees for indigent defendants. Cunningham, 82 Cal.App.3d at 352. Cunningham is seemingly at odds with the opinion of the California Attorney General, who in 1981 formally opined that a county is not required to pay the costs of providing court appointed counsel for indigent defendants in paternity cases. 64 Op. Atty Gen. Cal. 257. Although the result in Cunningham is different than the result in Arnelle the theory is the same: it is up to the legislature, not the court, to provide for compensation of court appointed counsel.

However, in Bradshaw v. U.S. District Court for S.D. of California (9th Cir. 1984) 742 F.2d 515, 518, the federal district court did weigh factors similar to the "good cause" factors found in MR 6.2 before finding no abuse of discretion in the trial court's refusal to coerce lawyer's services to represent an indigent plaintiff in an employment discrimination case. Over twenty lawyers had refused to accept the representation based upon lack of statutory provision for compensation, the client's litigious reputation, and the complexity of issues. In addition, the lawyers who declined the case were concerned about jeopardizing their malpractice insurance coverage as the plaintiff apparently had a reputation for publicly questioning the competency of her attorneys. Additionally, there was concern regarding possible disciplinary proceedings before the State Bar based on their assessment of plaintiff's claims. The court found that these concerns were properly considered by the district court as part of its decision whether to appoint counsel. The court opined that "failure to come forward to assist indigent litigants at the request of the court" indicates "loss of professionalism," violates the spirit of the Model Code and "may also be a violation of section 6068" of the B&PC. Predictably, the federal court refrained from specifically ruling on the applicability of B&PC 6068(h)), however, it essentially extended the "good cause" factors of MR 6.2 to apply to B&PC 6068(h).

Additionally, a 1962 case found that "the court should not appoint counsel - whether to defend an indigent or otherwise - and require of him that in so doing he surrender any of the substantial prerogatives traditionally or by statute attached to his office." People v. McFerran (4th Dist. 1962) 211 Cal.App.2d 4, 7, 26 Cal.Rptr. 914. In McFerran, counsel was appointed to represent a defendant on a charge of escape from prison. The defendant demanded that he be allowed to conduct his own defense with the appointed counsel as his assistant. The trial court was not required to grant the defendant's request because "neither the express provisions of California law nor general considerations of fairness require that an intelligent, competent defendant who obdurately insists upon controlling and conducting his own defense should be entitled as a matter of right to the services of counsel to act under defendant's control."

The following comments are taken from Karpman & Margolis page 172 with certain conforming changes:

A lawyer is not, in the absence of statutory authorization, entitled to compensation for services rendered in acting in defense of indigent criminal defendants. An appointed lawyer may be called upon to serve gratuitously in accordance with his duty, under B&PC 6068(h), never to reject the cause of the defenseless or oppressed. Arnelle v. City & County of San Francisco (1st Dist. 1983) 141 Cal.App. 3d 693, 696, 190 Cal.Rptr. 490.

Part of the public service obligation of the bar is the performance of pro bono work. Failure to come forward to assist indigent litigants, at the request of the court, may constitute a violation of B&PC 6068(h). Bradshaw v. U.S. Dist. Court for the Southern Dist. of California (9th Cir. 1984) 742 F.2d 515, 518-519.

6.3   Rule 6.3 Membership in Legal Services Organization

6.3:100   Comparative Analysis of CA Rule

Primary California References: CRPC 1-600
Background References: ABA Model Rule 6.3, Other Jurisdictions
Commentary:

6.3:101      Model Rule Comparison

MR 6.3 addresses "membership in legal services organization[s]," and does not appear to have a California counterpart. Therefore, California may look to MR 6.3 for guidance. [See 1.1:310 Relevance of Ethics Codes in Malpractice Actions, supra].

CRPC 1-600, which addresses participation in "legal service programs," appears to be directed toward different activities than those covered by MR 6.3, although the rules may overlap. MR 6.3 focuses on the potential conflicts which might result when an attorney acts as an officer or director of a legal services organization which in turn may be representing clients adverse to persons whom the attorney represents in his or her independent legal practice. A common situation is that of a lawyer in a large firm who acts as a director of a local legal aid society. On the other hand, CRPC 1-600 addresses various issues which might arise where a legal service program operated or managed by non-attorneys provides legal services to the program's members or constituents.

CRPC 1-600(A) defines "legal service programs" as nongovernmental programs, activities or organizations, which furnish, recommend or pay for legal services. The CRPC 1-600 Official Discussion further defines a "nongovernmental program, activity, or organization" to include, although not limited to, "group, prepaid, and voluntary legal service programs, activities, or organizations." Unlike CRPC 1-600(A), MR 6.3 does not define "legal services organization" or refer to another rule for this definition. However, the MR 6.3 Comment, in addition to case law and ethics opinions from various jurisdictions and bar associations, indicates that CRPC 1-600 and MR 6.3 are directed toward different activities.

CRPC 1-600(B) also addresses "lawyer referral services," stating that "[t]he Board of Governors of the State Bar shall formulate and adopt Minimum Standards for Lawyer Referral Services . . .," which shall be binding on members. The CRPC 1-600 Official Discussion states that "[t]he participation of a member in a lawyer referral service established, sponsored, supervised, and operated in conformity with the Minimum Standards for a Lawyer Referral Service in California is encouraged and is not, of itself, a violation of these rules." See generally, "Minimum Standards for a Lawyer Referral Service in California" (hereinafter "Minimum Standards") (adopted by the Board of Governors June 18, 1988 and approved by the Supreme Court Order dated October 26, 1989).

Curiously, the language in CRPC 1-600(B), which empowers the Board of Governors to create a comprehensive system of regulation governing lawyer referral services, is included in the same ethical rule governing legal service organizations. Not only are the Minimum Standards referred to in CRPC 1-600(B) essentially administrative regulations, as opposed to ethical considerations, but B&PC 6155(c) specifically excludes legal service organizations from the definition of a "lawyer referral service." See B&PC 6155(c).

Unlike CRPC 1-600(B), MR 6.3 does not address lawyer referral services, but is rather limited to legal services organizations and related ethical considerations. Therefore, a discussion of CRPC 1-600(B) and the Minimum Standards is beyond the scope of this section.

CRPC 1-600(A) begins by prohibiting a member from participating in a "nongovernmental program, activity, or organization furnishing, recommending, or paying for legal services, which allows any third person or organization to interfere with the member's independence of professional judgment, or with the lawyer-client relationship or allows unlicensed persons to practice law, or allows any third person or organization to receive directly or indirectly any part of the consideration paid to the member, except as permitted by these rules . . . ."

CRPC 1-600(A) is phrased as a general prohibition on participation in legal service programs when such participation would result in various ethics violations which are expressly stated. Following this general prohibition are a number of exceptions referred to in the CRPC 1-600 Official Discussion, including lawyer referral services operated in conformity with the Minimum Standards and certain insurance and public agency arrangements.

Case Law

In In re Hessinger & Associates. (N.D.Cal. Bankr. 1996) 192 B.R. 211, the court found, inter alia, that a law firm violated CRPC 1-600 by allowing a nonlawyer who controlled the firm to receive a monthly salary. In Hessinger, the law firm represented Chapter 7 debtors and directed its advertising and collection business to companies owned by the nonlawyer. Id. Although the court found that this purchase of nonlawyer services did not constitute unethical fee splitting, the court concluded that the nonlawyer himself "was not providing any legitimate service to the firm" which would justify the monthly salary. Id.

In Curran v. Department of Treasury (9th Cir. 1986) 805 F.2d 1406, the court noted that "California courts have stated that the rationale for the fee-splitting rule is to protect against `the change probability of control by the lay person, interested in his own profit rather than the client's fate'"(quoting Gassman v. State Bar (1976) 18 Cal.3d 125, 132, 132 Cal.Rptr. 675, 679, 553 P.2d 1147, 1151; Emmons, Williams, Mires & Leech v. State Bar (3d Dist. 1970) 6 Cal.App.3rd 565, 573-74, 86 Cal.Rptr. 367, 372).

Ethics Opinions

There are currently no California ethics opinions providing a significant interpretation of CRPC 1-600.

6.3:102      Model Code Comparison

There was no Model Code provision comparable to MR 6.3.

6.3:200   Conflicts of Interest of Lawyers Participating in a Legal Services Organization

Primary California References: CRPC 1-600
Background References: ABA Model Rule 6.3, Other Jurisdictions
Commentary: ABA/BNA 91:6401, ALI-LGL 216, Wolfram 16.7.4

CRPC 1-600(A) does not specifically refer to conflicts of interest. Under CRPC 1-600(A), the express limits on participation in legal service programs involve financial arrangements with non-lawyers, the unauthorized practice of law, interference with "the member's independence of professional judgment" and the attorney-client relationship. However, certain conflicts of interest may be inherent in these ethical considerations, resulting in substantive limits on participation in the legal services programs defined in the CRPC. Further, CRPC 3-300 and CRPC 3-310 do address conflicts of interest, and may frequently intersect with CRPC 1-600, as illustrated by the case law and ethics opinions on the subject. [See Rule 1.7 Conflicts of Interests: General Rule, supra, for a detailed discussion of CRPC 3-300 and CRPC 3-310].

Case Law

There is currently no case law specifically addressing conflicts of interest in the context of CRPC 1-600(A).

Ethics Opinions

C.O.P.R.A.C. Op. 1997-148

This opinion concluded that a lawyer acts unethically by preparing "living trust" documents for a member of the public at the direction of, or on behalf of, a nonlawyer such as a financial marketer or a life insurance agent who (1) markets a "living trust" package to the public; (2) advises individuals about estate plans; and (3) supervises the creation of the living trust documents. The opinion found, inter alia, that the attorney involved in the above situation violates CRPC 1-600 and CRPC 3-310. See also, ABA/BNA 1101:1601.

Specifically, this opinion found that on the above facts, the marketer interferes with the lawyer's independence of professional judgment and with the client-lawyer relationship in violation of CRPC 1-600(A), and that the lawyer represents conflicting interests in violation of CRPC 3-310.

This opinion referred to ethics opinions from other jurisdictions which "have analyzed these arrangements from a variety of standpoints," and stated that, if the participant is viewed as the client, "independent judgment, interference with the client relationship, and breach of confidentiality" are typically identified as issues. If the marketer is viewed as the client, the opinion found that the issues are typically "assisting the unauthorized practice of law, and fee splitting with a non-lawyer." However, if both are clients, the opinion found that "opinions typically identify conflicts of interest issues." In addition, the opinion emphasized that "apart from ethical obligations arising from the existence of a client-lawyer relationship, the attorney may have fiduciary obligations creating legal liability even if no client lawyer relationship is formed between them."

This opinion also noted that "anytime a relationship exists involving an ongoing referral of business to a lawyer's practice that results in a non-lawyer having influence over the lawyer's judgment or conduct, written disclosure to the client may be required by [CRPC 3-310]." However, the opinion cautioned that merely making the required disclosure may not be enough to fulfill all of the lawyer's ethical duties to the participant, and that "the lawyer may be under a mandatory duty to withdraw from the representation" when the lawyer is not able to "competently represent and advise the participant-client as a result of the business and financial relationship with the marketer."

6.4   Rule 6.4 Law Reform Activities Affecting Client Interests

6.4:100   Comparative Analysis of CA Rule

Primary California References:
Background References: ABA Model Rule 6.4, Other Jurisdictions
Commentary:

6.4:101      Model Rule Comparison

MR 6.4 addresses "law reform activities affecting client interests," and encourages participation in law reform activities. MR 6.4 does not have a California counterpart, and therefore, California may look to MR 6.4 for guidance. [See 1.1:310 Relevance of Ethics Codes in Malpractice Actions, supra].

Case Law

There is currently no California case law specifically addressing law reform activities affecting client interests.

6.4:102      Model Code Comparison

There was no comparable rule to MR 6.4 in the Model Code.

6.4:200   Conflicts of Interest of Lawyers Participating in Law Reform Organizations

Primary California References:
Background References: ABA Model Rule 6.4, Other Jurisdictions
Commentary: ABA/BNA 91:6401, ALI-LGL , Wolfram 13.8

Ethics Opinions

C.O.P.R.A.C. Op. 1989-108

Although this opinion does not expressly address law reform activities, it does address "issues conflicts" under CRPC 3-310, which may be relevant to conflicts of interest in the context of law reform activities, where the advocacy of law reform may be contrary to the interests of unrelated clients. [See Rule 1.7 Conflicts of Interests: General Rule, supra for a detailed discussion of CRPC 3-300 and CRPC 3-310].

This opinion addresses the issue of whether it is unethical for a lawyer to represent two clients who are not directly adverse to one another where the lawyer will be arguing opposite sides of the same legal issue before the same judge. The opinion notes that "[m]ost authorities speak of conflicts of interest only where the representation involves the same case or transaction. Normally, the scope of adversity has been limited to party identification." For example, the opinion cites to Pepper v. Superior Court (2nd Dist. 1977) 76 Cal.App.3d 252, 142 Cal.Rptr. 759, where the issue was whether a lawyer-member of a country club could sue the club on behalf of several members. See C.O.P.R.A.C. Op. 1987-93 (concluding that a conflict of interest exists where a criminal defense counsel has a close personal relationship with court personnel).

However, this opinion also addresses "issues conflicts." It cites to People v. Davis (1957) 48 Cal.2d 241, 309 P.2d 1, where in the criminal context, the court held that a criminal defense lawyer may not assume a position adverse or antagonistic to his client without his client's consent. At the same time, the opinion finds that there are "jurisprudential and practical reasons which argue against finding a disciplinable conflict" where an attorney represents two clients who are not directly adverse to one another, but where the attorney will be arguing opposite sides of the same legal issue before the same judge. The opinion finds that "issues conflicts" are "common and prolific in our adversarial system of justice. Almost daily the litigator or transactional attorney finds himself or herself taking positions on behalf of clients which are antithetical to another client." The opinion further finds that "employing a test which could be imposed uniformly to 'issues conflicts' . . . threatens the ability of attorneys to carry out their roles in the legal system" and "will also interfere with the strong social policy favoring one's right to counsel of choice" because "[t]he pool of available attorneys will of necessity be diminished if withdrawal results from 'issues conflicts' situations."

This opinion states that "[c]onflict of issue detection within a firm of several attorneys using even the most sophisticated automated conflict of interest check system would be virtually impossible," and that "the Commission did not intend [CRPC 3-310] to proscribe advancing antagonistic legal positions." In addition, the opinion concluded that the lawyer does not violate the ethical provisions governing attorney competence by representing two unrelated conflicts where there is an "issues conflict." However, the opinion cautions that "the prudent attorney would be well-advised to disclose "issues conflicts" where the attorney has reason to believe clients might be harmed by the continued undisclosed dual representation, thereby providing the clients an opportunity to retain other counsel."

6.5   Rule 6.5 Nonprofit and Court-Annexed Limited Legal Service Programs

6.5:100   Comparative Analysis of California Rule

Primary California References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

MR 6.5 was added in February 2002. The Reporter's explanation of the change reads as follows:

Rule 6.5 is a new Rule in response to the Commission's concern that a strict application of the conflict-of-interest rules may be deterring lawyers from serving as volunteers in programs in which clients are provided short-term limited legal services under the auspices of a nonprofit organization or a court-annexed program. The paradigm is the legal-advice hotline or pro se clinic, the purpose of which is to provide short-term limited legal assistance to persons of limited means who otherwise would go unrepresented.

6.5:101      Model Rule Comparison

California has not adopted the new model rule.

6.5:200   Scope of Rule

Primary California References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

California has not adopted the new model rule.

6.5:300   Special Conflict of Interest Rule

Primary California References:
Background References: ABA Model Rule 6.5, Other Jurisdictions
Commentary:

California has not adopted the new model rule.