“Of counsel” relationships are typically defined by the close, personal, continuous, and regular nature of the relationship. When a close, personal, continuous, and regular relationship exists between an “of counsel” lawyer and a firm, the “of counsel” will be considered a member of the same firm for purposes of Ethical Rule (ER) 1.5(e), governing fee splitting among lawyers, as well as for conflicts purposes. Opinion 86-03 is accordingly withdrawn.
When a lawyer’s employment with a firm is terminated, both the firm and the departing lawyer have ethical obligations to notify affected clients, avoid prejudice to those clients, and share information as necessary to facilitate continued representation and avoid conflicts. These ethical obligations can best be satisfied through cooperation and planning for any departure.
A lawyer may provide mortgage/refinancing services separate from the lawyer’s law firm so long as the proper disclosures are made, including that the lawyer is not providing legal services and the customers do not have the protections of the lawyer-client relationship. Referrals of clients must meet the “heavy burden” of compliance with ERs 1.7 and 1.8(a). Lawyers from separate law firms may participate as loan officers in the separate mortgage/refinancing company without imputed conflicts of interests for their law firms’ clients. However, these lawyers must not only make proper disclosures, but each lawyer also must determine whether the lawyer’s personal interests materially limit the lawyer’s professional judgment and whether any information known by the lawyer from these professional and business relationships creates any conflict of interest such that the lawyer may not proceed in any particular circumstance. Confidentiality requirements for clients and former clients also must be strictly followed.
Under revised Ethical Rule 1.10 a separate “Conflicts Unit” may not be employed to address imputed conflicts involving former clients even if screening is employed as defined under ER 1.0. Two current clients may give a written informed waiver of a conflict under certain circumstances in accordance with ER 1.7. If both clients do not give consent, however, the Public Defender’s office and the proposed Conflicts Unit would constitute one firm for purposes of ER 1.10, such that referral of a case to the Conflicts Unit would not resolve the ethical conflict.
This Opinion discusses the possible conflicts of interest when a public defender and law enforcement officer have a personal relationship.
A group of lawyers who share an office suite but are separate firms may share a common phone number for communications with Spanish-speaking prospective clients and hire a common receptionist simply to route calls to lawyers in the group based upon practice area without being deemed a "referral service." Such an arrangement appears to be group advertising. If the receptionist's only interaction with the prospective clients is to forward the calls to the appropriate attorney, then his or her common employment by the separate firms probably will not impute conflicts among the group members. [ERs 1.6, 1.10, 5.3, 7.1(r)(3), 7.5]
This Opinion discusses the conflict of interest guidelines for personal relationships between members of a Prosecutor's Office and members of the Legal Defender's Office. [ERs 1.7(b), 1.8(i), 1.10]
An attorney who works on a contract basis for more than one law firm will be considered an associate of each firm for conflicts and confidentiality purposes unless: (1) there is a written agreement that limits the scope of the contract attorney's work to a particular client for a particular project (specifying that the relationship will terminate at the end of the project or at a particular time or upon the occurrence of a particular event); and (2) the contract attorney will not have general access. [ERs 1.6, 1.7, 1.8, 1.9, 1.10]
A public defender must withdraw from representation of a criminal defendant who has a "colorable" claim of ineffective assistance of counsel against another member of the public defender's office. The timing of the withdrawal will depend upon the facts of each individual case. [ERs 1.7, 1.10. 1.16]
Once a lawyer who has a conflict leaves a firm, the remaining members of the firm are no longer subject to imputed disqualification if none of the remaining lawyers possess any confidential information related to the former client of the departed lawyer. [ER 1.10]
Case-by-case analysis required for lawyer-legislator conflict and disqualification issues arising from lobbying activities. *This opinion was adopted by the Board of Governors of the State Bar in place of the formal opinion by the State Bar Committee on the Rules of Professional Conduct.
Restrictions on public defender serving as city council member.
Committee disapproves of proposal of Public Defender's Office to split into two divisions to avoid imputed disqualification problems.
Ethical propriety of public defender's continued representation of a client, where the client's defense is to inculpate a co-defendant who the Public Defender's Office was appointed to represent in the early stages of the same case and also in another proceeding.
Committee discusses the propriety of a public defender's continued representation of a client where the Public Defender's Office is currently representing one person and formerly represented three others who have now been listed as witnesses for the State in the client's criminal case.
Sole practitioner proposes to turn over his law practice to a law firm while he goes on a one-year leave of absence. Discussion of whether a law practice has a salable goodwill. (Invalidated by Op. 06-01)
Committee analyzes conflict of interest issues arising when persons with adverse interests in legal matters seek the assistance of the Volunteer Lawyer's Program or Community Legal Services.
Contractual relationship existing between the County Attorney's office and the City Attorney's office does not, in itself, prohibit the two offices from exchanging cases due to conflicts of interest.
Lawyer may not defend a client in criminal fraud proceedings when client's bookkeeper was defended by lawyer's partner in substantially related IRS tax assessment proceedings, and, the bookkeeper will appear as critical prosecution witness against the client.
Disqualification of other lawyers in Public Defender's office when head of Public Defender's office was formerly head of alternative Legal Defender's Office.
Where a lawyer formerly associated with County Attorney's office takes a public defender position, the lawyer may not represent a defendant in connection with a matter about which the lawyer obtained confidential information relating to the government's representation of the client; consent is also required in all cases in which the lawyer actually represented the government, by appearance or otherwise, and now seeks to represent an individual in the same or substantially related matter; the government's consent is likewise required where the lawyer participated personally or substantially in the prosecution of that matter.
Multi-person law firm listed on letterhead and other communication of another law firm as "of Counsel" to that firm.
A lawyer or her partners may not ethically act as a special prosecutor for a city, or represent City Court judges in special actions or civil matters while simultaneously handling criminal defense cases in city court of the same city.
A lawyer who has a public defender contract may not ethically serve simultaneously as a judge pro tempore in Superior Court on the criminal bench, nor the juvenile bench. The lawyer may serve simultaneously as a judge pro tempore on the civil bench or domestic relations bench. The lawyers partner may ethically serve as a judge pro tempore even in criminal and juvenile matters.