There are three new ethics opinions that are ready to be finalized that will impact all practicing lawyers once they are published. The first is Formal Opinion Interim No. 08-0001 that asks the following question: When does an attorney violate Rule 4-400 of the California Rules of Professional Conduct by accepting a gift from a client? Having once been the recipient of a hideous office rocking chair, I was naturally interested to see what the Committee had to say about gifts.
They posit a hypothetical where a client owns a second home in Molokai, Hawaii. The attorney has helped the client on several matters and mentions to the client that, since the house stands vacant most of the time, she would love to stay there as she normally would not be able to afford that kind of vacation destination. When the representation ends, the client hands the keys to the Molokai house to the attorney, telling her she deserves a vacation and can stay for one week without charge.
I’m on my way, giant sunglasses and wheelie luggage in tow!
But wait. The Committee found that this does violate Rule 4-400 because 1) the lawyer induced the gift by mentioning her desire to stay in the house and 2) it is a substantial gift to the attorney, even if not to the client.
I guess we can safely say that the State Bar does not have the “Aloha Spirit.”
The next opinion is Formal Opinion Interim No. 08-0002 and it is a primer on confidentiality and technology. I suggest that all Contra Costa lawyers access it from the State Bar site immediately as it will be the standard for all lawyers for protecting sensitive client information. It is too lengthy to go into details, but it does contain an admonition I call the “Starbucks Coffeehouse Warning.” It says “With regard to the use of a public wireless connection, the Committee believes that, due to the lack of security features provided in most public wireless access locations, Attorney risks violating his duties of confidentiality and competence in using the wireless connection at the coffee shop to work on Client’s matter unless he takes appropriate precautions, such as using a combination of file encryption, encryption of wireless transmissions and a personal firewall.”
A tough message to java lovers everywhere.
Last is Formal Opinion No. 06-0004, which addresses the question of what an attorney should do when he receives an intriguing e-mail from a non-party about a confidential communication between opposing counsel and opposing counsel’s client. The text of the e-mail hypothetically reads as follows: “I am an employee of Company X. I wish to remain anonymous. …The attached document proves that Company X planned and perpetrated a fraud with the advice and assistance of your opposing counsel, who was retained for that purpose and has been actively involved in the fraudulent scheme. The attached document will prove your case. Read it and see for yourself.”
This is not like the inadvertently received document cases; the e-mail is clearly sent intentionally. The Committee concludes that if the attorney can reasonably conclude that the crime-fraud exception to the attorney-client privilege applies, he can read the e-mail just enough to see if it is privileged or not. If it is clearly not privileged (like a newspaper clipping) he can use the information. But if he can’t make that determination, he has to inform opposing counsel and go to the court.
These Opinions are available to everyone at the State Bar site, so take a look, and have a happy New Year!
– Carol M. Langford is an attorney in Walnut Creek, California that advises and represents lawyers in attorney conduct matters. She is an adjunct professor at U.C. Berkeley Boalt Hall College of the Law.
Filed Under: Ethics Corner