Five Hot-Button Lawyer Ethics Questions Jim Wagstaffe I have been writing about legal ethics and advising law firms as outside counsel on such issues for decades. And there are certain questions – not necessarily the “big” ones – that come up with some regularity and bear reminders on how we lawyers must behave. Surprisingly, the five “hot button” questions described below do not always involve the highprofile, State Bar-sensitive subjects, e.g., dreaded trust account conundrums, in-take conflict of interest drill downs, or even client confidences, competence to practice, duties as an advocate or sex with clients. Rather, the following five ethics questions arise with surprising frequency for lawyers in this state.
What Must I Do to Share Fees with Another Attorney Outside My Firm?
What Must I Do to Help Clients Preserve Evidence?
The requirements for disclosure and consent still apply in situations where the other lawyer’s involvement is limited to referring the matter at the outset. Id. Fee-splitting is prohibited if the arrangement is with a non-attorney.
Certainly, every client has a duty to preserve relevant evidence if litigation is reasonably anticipated. Additionally, attorneys have an affirmative duty to explain to their clients these discovery obligations, which include the types of records that are discoverable and the need to use appropriate collection and preservation methods. Merely giving a general admonition to the client to preserve “relevant” documents is insufficient. Attorneys must describe the subject matter and the kind of documents to preserve, including giving advice on “litigation holds” and “preservation” notices to the client’s managers and employees. In this regard, the attorney has an affirmative duty to be informed about a client’s computer systems (e.g., content and location of ESI such as email, archival data, personal devices, removable media, etc.).
Lawyers who are not in the same law firm shall not divide a fee for legal services unless (1) the lawyers have a written agreement to divide fees, (2) the client has consented in writing after a full written disclosure, and (3) the total fee charged cannot be increased solely by reason of the division. CRPC 1.5.1(a). The client’s written consent must be either at the time the lawyers enter into the agreement or as soon thereafter as reasonably practicable. CRPC 1.5.1(b).
The rules also provide that an attorney may not accept compensation for representing a client from someone other than the client unless: (1) there is no interference with the attorney’s independence or professional judgment; (2) information relating to the representation is protected as confidential; and (3) the attorney obtains the client’s informed written consent. CRPC 1.8.6. The bottom line: include these disclosures in your initial fee agreement and include a line for your client’s consent to the arrangements. Failure to follow such rules could result in a denial of a right to recover fees under such situations.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
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