The Ethics of Attorneys’ Personal Activities

Langford.CarolLawyers are known for being intellectually curious and energetic, which translates into a wide array of extra-curricular activities. When can a lawyer or one acting as a temporary judge get in trouble for what he or she does outside of his or her practice?

The most interesting ethics opinion on this issue is Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811. In that case, the attorney agreed to represent Oasis in its effort to obtain approval of a Hilton hotel redevelop project from the Beverly Hills City Council. During the representation, Goldman became “intimately involved in the formulation of the plan for Oasis’ development of the property and its strategy to secure all necessary approvals and entitlements …”[1] His firm, Reed Smith, LLP, received about $60,000 in fees for his work to develop the Hilton hotel.

About two years later, a group of Beverly Hills neighborhood residents (including Goldman) opposed to Oasis’ plans formed the Citizens Right to Decide Committee, with the intended goal of trying to halt the Hilton project. The day the City Council gave final approval to the redevelopment of the Hilton hotel, Goldman and his wife walked their street soliciting signatures for a petition to overturn the Council’s decision to approve the project, saying it would be noisy and cause excessive traffic near their home. Understandably furious, Oasis sued Goldman and his firm for breach of fiduciary duty. Since the issue came up in a SLAPP lawsuit, the court focused only on the duty of loyalty lacking in Goldman, and not other ethics issues they could have discussed.

Goldman strenuously argued to the court that he had a right of free speech, which allowed him to engage in fighting the proposed project, as his efforts were made in his spare time. He also contended that he had not learned anything from Oasis in his representation that was not already public knowledge. The court disagreed, saying they were not putting a broad prohibition on an attorney expressing his beliefs, but instead were enforcing the duty of loyalty where the lawyer was fighting the very project he had worked on.

While Rule of Professional Conduct 3-310 (b) (4) requires lawyers to disclose their own legal, business, financial or professional interests in the subject matter of the representation, Oasis makes it clear that the Rule encompasses personal interests that would substantially affect the exercise of the lawyer’s professional judgment as well.[2]  Other personal outside activities that might cause a problem for an attorney could include using a client’s information to start a competing business (David Welch Co. v. Erskine & Tully (1988) 203 Cal.App.3d 884), and negotiating a law firm merger with the attorney representing your client’s adversary (Stanley v. Richmond (1995) 35 Cal.App.4th 1070).

Where a lawyer is a candidate for judicial office, the rules are stricter. That makes sense; we want the public to have faith in the judicial process. Rule of Professional Conduct 1-700 puts lawyer-judicial candidates on par with sitting judges in order to avoid public misconceptions about the integrity of the bench. Judicial candidates cannot act as leaders or hold any office in a political organization (Canon 5A(1)) or personally solicit funds for a political organization. They also cannot make statements to the electorate committing themselves with respect to cases that could come before the courts. The standard of avoiding the appearance of impropriety means that basically judges and candidates for judicial positions must watch all their activities in an effort to promote public confidence in the bench.

All of this may sound like a lot of “rules,” but it’s not really that complicated. Think about it—what kind of behavior do you expect from your lawyer or local judge? Do you expect loyalty from your former lawyer? Shouldn’t you be able to count on a lack of bias from your judge with regard to the matters that may be in his or her court, or count on your former attorney not to actively speak out against the very project you paid him to promote? At the end of the day, lawyers hold a position of trust, and we need to keep that in mind when our personal and professional lives intersect.

Carol M. Langford is an attorney specializing in State Bar defense and in providing advice to lawyer on ethics matters. She is also a lecturer in law of professional responsibility at U.C. Berkeley Boalt Hall School of Law.

[1] Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811

[2] Cal. Practice Guide: Professional Responsibility, 4:264.10a.


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