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Ethics Opinions from the Bar Association of San Francisco

The following list describes opinions of The Bar Association of San Francisco Ethics Committee.

Full opinions may be viewed, and printed, when you click on the dates below.

2014-1 May an attorney respond to a negative online review by a former client alleging incompetence but not disclosing any confidential information where the former client's matter has concluded?  If so, may the attorney reveal confidential information in providing such a response?  Does the analysis change if the former client's matter has not concluded?
2012-1

Prohibiting an attorney from disclosing public information regarding the attorney’s handling of a particular type of case against a settling defendant is an impermissible restriction on the attorney’s right to practice.  Prohibiting an attorney from disclosing that he or she has experience in a particular area of the law is also an impermissible restriction on the attorney’s right to practice regardless of whether that information is otherwise public.

2011-1

An attorney who represents a client and is considering advising the client to discharge co-counsel must comply with a number of professional obligations including the duties of communication, confidentiality, and competence. The attorney must also be truthful with the client, act in the client's best interest and exercise independent professional judgment.

An attorney who reasonably believes that a client is substantially unable to manage their own financial resources or resist fraud or undue influence, may, but is not required to, take protective action with respect to the client's person and property.

An attorney may contract with a client to receive both an hourly rate and a contingency fee as long as the fee agreement is negotiated in an arms length transaction and the fee charged is not unconscionable.

1997-1

An attorney need not comply with Rule 3 300 of the Rules of Professional Conduct in the negotiation of any fee arrangements with a client concerning the current or future representation unless the attorney acquires an ownership, possessory, security, or other pecuniary interest adverse to the client. In the event the attorney/client relationship has already begun, the attorney must comply with all appropriate fiduciary obligations.

1996-1

Unless the client and attorney agree otherwise, the attorney may dispose of any writing in the "client file," except to the extent retention is necessary to avoid reasonably foreseeable prejudice to the client's legal rights.

1990-1

An attorney may not ethically withhold materials or information, including the attorney's work product and items not physically contained in the client's file, from a present or former client or the client's new attorney, when to do so would reasonably foreseeably prejudice the client's representation.

1989-1

When a client discharges Lawyer A in a contingency fee case and consults Lawyer B, disclosure of Lawyer A's quantum merit claim for fees should be made to the client by a successor attorney hired on a contingency fee or other basis. In the opinion of the Committee, a successor attorney may ethically indemnify a client from the former discharged attorney's claim for fees under a contingency fee contract.

1985-2

It is ethically proper for an attorney who advances costs in litigation to provide in the contingent fee agreement that costs will be recoverable only out of a judgment or settlement.

1985-1

Formal: For purposes of analyzing and disclosing potential conflicts of interest, an attorney who is "of counsel" to a law firm must be treated as though he or she was a member of the firm. Similarly, even if an attorney is not "of counsel," if he or she shares office space and/or employees with other attorneys, all of them should be considered as one firm for conflict of interest purposes.

1985-1

Informal: It is proper for an attorney to allow or encourage his or her client to attempt to resolve a dispute by communicating directly with an opposing party, so long as the client is not directly or indirectly acting as an agent of the attorney. Any implication to the contrary in informal opinion 1973-25 is disapproved.

1984-1

Under no circumstances is it ethical for a lawyer in a civil case who has either withdrawn or been discharged by the client to withhold, pending payment of costs or unpaid fees, all tangible materials generated in the course of the representation except to the extent these materials are absolutely protected from disclosure by court order or privilege personal to the attorney. These materials include all pleadings, correspondence, discovery, reports, research notes, and notes regarding witnesses and strategy. Furthermore, an attorney must relinquish certain intangible materials generated as a consequence of the work consisting of general impressions of the case, tactics, and legal theories, except to the extent these materials are likewise protected from disclosure by court order or valid privilege personal to the attorney. Except to the extent required to comply with Rule 8-101(B)(3), an attorney does not have to relinquish materials relating to billing information for fees and disbursements.

1983-1

Without the consent of the association attorney, it would be improper to contact an officer, director, or managing agent of the association or to contact an association member whose statements, relating to the matters in dispute, may be binding on the association. It would also be improper to contact an association member or employee, if the subject of discussion is any act or omission of such person which is legally binding on, or otherwise may form the basis of the claim or claims against the association.

1981-1

It is ethically improper under Rules 2-108 (regarding financial arrangements among lawyers) and 3-102 (regarding financial arrangements with non-lawyers) for an attorney who is a member of an organization to provide, or for an attorney to receive, funds for costs, when the repayment and compensation to the lender is a percentage of the legal fees received by the borrowing attorney.

1980-1

"Flat" or "fixed" fee advances should be deposited in a firm's general account and should not be deposited in a trustee savings or checking account.

1979-3

An attorney who receives medical reports concerning a client in connection with his representation of the client must, upon request, surrender the reports to the client (or succeeding counsel, but not to a non-attorney representative) even though the attorney believes that knowledge of the contents of the reports may substantially harm the client.

1979-2

An attorney who is a director, but not counsel, for an insurance company and who desires to represent the carrier's insured in a third party claim against the insured, is subject to the same rules governing the representation of conflicting (or appearing to be conflicting) interests as apply to counsel for the carrier.

1979-1

An attorney who directs a mass mailing to income property owners in San Francisco concerning the availability of that attorney to provide legal services in unlawful detainer actions should not be subjected to disciplinary action for violation of Rule 2-101, California Rules of Professional Conduct. While communications of this nature could "tend to confuse, deceive, or mislead the public" in violation of Rule 2-101, or is otherwise conduct by attorneys which should not be encouraged, in this case, the subject communication appears to be not disciplinable.

1977-2

An attorney must withdraw from the representation of a client who discloses hidden community assets to him, but who refuses to disclose these assets to the court in a domestic relations matter.

1977-1

The California Rules of Professional Conduct impose no duty upon California attorneys to report a known impropriety of another attorney to the appropriate agencies. However, moral and ethical consideration aside from the Rules would seem to dictate that such an obligation may be proper.

1976-2

It is ethically improper for an attorney to pay to a referring organization a percentage of the recovery obtained by the attorney on behalf of his client, pursuant to an agreement between the referring organization and the client.

1976-1

A federally funded legal services office's policy that certain litigation cannot be commenced without review by and concurrence of its Director of Litigation does not restrain unethically the staff attorneys' independence of judgment, or violate attorney-client confidentiality. However, the application of the policy could result in prejudice to the client's interests.

1975-6

It is improper for a public prosecutor to threaten criminal prosecution to obtain an individual's acceptance of a final judgment in a civil suit such as a permanent injunction, to seek an agreement to pay a civil penalty, or to seek the individual's agreement to make restitution to members of the public who may have been injured due to his acts.

1975-5

An attorney may not reveal to the Internal Revenue Service pursuant to a summons under Section 7602 the details of fees paid, dates of payment, etc. unless the client specifically and in writing waives any privilege he may have, or, unless the attorney is ordered to do so by the court.

1975-4

An attorney who has withdrawn from representation or who has been discharged by the client cannot ethically maintain a retaining or possessory lien on the client's papers or property pending payment of fees or costs. It is an ethical duty to release to the client or succeeding attorney all papers, documents, or other property necessary to the continued representation of the client.

1975-3

It is not ethically proper for a law firm which has been requested by a trade association to be available to render legal services if approached by association members to permit the listing of its name in the association publication for the purpose of advising members of the firm's availability unless the listing was first appropriately certified.

1975-2

If an attorney in the process of discovery in a civil case finds that the opposing party may have engaged in tax fraud, he is not ethically barred from reporting it, unless he does so solely to obtain an advantage in a civil matter.

1975-1

A firm whose principal office and practice is in another state may ethically maintain an office in California under its out-of-state firm name. With the exceptions noted, the firm may not maintain listings in telephone books, building directories and the like under the out-of-state firm name when none of the lawyers whose names make up the firm name are admitted in California.

1974-6

Proposed Canon 7 of the Code of Judicial Conduct as it relates to fund-raising for election to judicial office is not too restrictive, but is not sufficiently inclusive in its applicability and thereby allows for substantial abuse.

1974-5

Superseded by I.O. 1975-1.

A law firm whose principal office and practice is in another state may not ethically maintain an office in California under its out-of-state firm name with listings in telephone books, building directories and the like under the out-of-state firm name when none of the lawyers whose names make up the firm name are admitted in California.

1974-4

An attorney may pay litigation costs for clients it is representing on a charitable basis.

1974-3

An attorney cannot ethically disclose records indicating the sources of funds which he has deposited in his client trust account unless the client consents to this disclosure. Such disclosure would breach the attorney-client privilege.

1974-2

A periodical which provides a reporting service on current California political campaign laws can list the name of the law firm it has retained as legal counsel if the identification states only the name of the firm in type and size no larger nor more prominent than the adjoining textual materials and contains no language which could be understood to extol the ability or special competence of the firm.

1974-1

It is ethical for a law firm opening an office in a city in another state to list both offices' partners on the letterhead with those out of state indicated by an asterisk if the law firm is a partnership. However, if the firm is a California professional corporation, it would not be permitted.

1973-27

A non-profit organization which actively solicits persons with consumer complaints contacted a law firm requesting that it undertake representation of a specific group of consumers in connection with fraudulent sales practices. The firm agreed to represent the consumers and signed individual retainer contracts on a contingent fee basis. A successful settlement of the issues was obtained. The firm directly paid a volunteer for the organization for investigative services performed in connection with the legal suits. The organization has now requested a contribution from the law firm in direct proportion to the fees which it earned as a result of representing the consumers with the implied understanding that if the contribution is made, further case referrals will be made by the organization to the law firm.

  1. It would be improper for the law firm to make the requested contribution.
  2. If a continuing referral relationship were established between the organization and the law firm, it would be improper to pay the organization for investigative services and to make contributions to it as proposed.
1973-26

An attorney may prepare a contract between his son and another party, both of whom are physicians; and he may represent both of them if the implications of such common representation are fully explained to the non-relative client and he intelligently consents thereto.

1973-25

It is improper for an attorney to advise or consent to his client conferring with an opposing party who is represented by counsel regarding settlement of a pending dispute. The first attorney has a duty to dissuade his client from doing so.

1973-23

A lawyer may form a partnership with a real estate broker if his sole involvement is as an inactive investor and he accepts no law work referred by his broker-partner, but the appearance of professional impropriety enjoined by ABA Canon 9 would be difficult to avoid.

1973-22

An attorney who acted in the sale of a business at the request of the broker under an arrangement whereby the buyer was to pay the attorney's fee may not later represent the seller against the buyer for breach of the sales contract, even though no element of confidentiality is present.

1973-19

Since representing a wife in an uncontested divorce action six years ago, an attorney has represented the husband in three criminal actions. The attorney may not now represent the wife against the husband for delinquent support payments where (a) the husband objects, and (b) the attorney may have previously acquired knowledge from the husband of his financial affairs.

1973-18

Law firms should distinguish partners from non-partners on stationery and announcements, by spacing, separation bar, or other means, so as to avoid misrepresentation to the public as to answerability and responsibility. [Based on L.A. Opinion 290 and ABA Opinion 310.]

1973-17

Plaintiff's attorney in an action against an insurance company may actively solicit amicus briefs on a point of law affecting consumers provided (a) he contacts only attorneys for consumer groups, (b) his client is fully advised and consents, and (c) clear arrangements are made for any additional attorneys' fees.

1973-16

An attorney whose client is out of the country and cannot be reached may post and guarantee a fidelity bond on his behalf in pending litigation despite his acquisition of an interest potentially adverse to the client in view of the exigencies of protecting the client's immediate interest.

1973-15

After noticing depositions in a personal injury action, plaintiff's counsel discovered that a defendant's insurer was his retainer client. He immediately withdrew as plaintiff's attorney. Later he concluded that the depositions had established the non-liability of the particular defendant and its insurer. Plaintiff wishes to again retain him. He may not accept the retainer because his non-liability conclusion may not have been independently arrived at.

1973-14

If any portion of a fee or advance retainer received by an attorney or law firm would be refundable to the client if the work contemplated were for any reason not completed, the sum must be deposited in the client's trust fund (CTF). Withdrawals should be made from the CTF only as portions of the fee in fact earned within the terms of the fee arrangement, express or implied. No exception may be made in the rule merely because an advance retainer is small in amount. The sole test is refundability in the event the work for any cause is not completed.

1973-12

An attorney who has withdrawn from a case which he was handling on a contingency fee basis is not obligated to deliver the contents of his office file to the client or successor counsel, but should permit reasonable inspection and copying. Such cooperation may not be conditioned on the reimbursement of filing fees advanced by the attorney who withdrew.

1973-11

A former judge may not be listed on his law firm's stationery as "Judge John Doe."

1973-10

If an attorney represented both parties in preparing a buy-sell agreement and his fee was paid equally by each party, that attorney may represent one of the parties for breach of contract by the other without the consent of the other party only if he obtained no confidential information in the course of his original employment by both of the parties which would adversely affect the interest of the former client.

1973-7

An attorney with a J.D. degree who is also a licensed dentist may (a) be introduced to legal clients as "doctor," (b) leave a message that "Doctor X phoned," and (c) display his dentistry diploma in his law office.

1973-6

An attorney may represent a woman in a personal injury action against her husband and his insurance carrier, even though the attorney previously defended the husband in a Vehicle Code violation arising from the same accident. But if the attorney obtained confidential information in his prior relationship, he must obtain his former client's consent.

1973-5

Withdrawal of a full-time staff attorney of San Francisco Neighborhood Legal Assistance Foundation as attorney of record from approximately 4,000 pending domestic proceedings, on termination of employment, must comply with usual procedures in each case.

1973-4

In a pending action against a hospital, plaintiff's attorney may question an employee of the hospital and physicians practicing medicine at the hospital, without notice to opposing counsel, where the person's questions are not part of the hospital's management. (31 L.A. Bar Bulletin 267 (1956)).

1972-1

An attorney may not write articles of a legal nature concerning matters of interest for a club newsletter if he is identified as an attorney in the publication.

1970-3

It is not improper or unethical to deposit clients' funds in a trustee savings account rather than a trustee checking account. The interest on the account would belong to the client and not to the attorney.

1970-2

A lawyer may send a letter to members of the Bar stating he is in the position to handle nominal and no-asset bankruptcies and would welcome referrals of such cases if the letter is dignified, does not contain a representation of special competence or experience, and is not distributed more frequently than once in a calendar year, although such a notice may be published periodically in legal journals. (Rule DR 2-105(A)(3)).

1970-1

It is not unethical to make a service charge or interest charge to clients if their bills are not paid within 30 days. However, care should be taken to avoid anything that could reasonably be regarded as overreaching or unfair. For example, the fact that a further charge will be assessed should be communicated to the client in sufficient time to allow him ample opportunity to make the payment and avoid the charge.

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