Can a government-employed attorney refuse to work or slow-walk litigation as leverage in a salary or benefits dispute?

Currency note

This opinion was issued in 1979, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. It interprets former Rule 6-101 (diligence and competence), an area now addressed by Model Rules 1.1 and 1.3 and California Rules 1.1 and 1.3. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, case, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee was asked about two tactics that publicly employed attorneys might use during a dispute over salary and fringe benefits: refusing to represent existing clients in ongoing litigation, and intentionally delaying ongoing litigation by exercising normally unused procedural privileges. The committee concluded both would be unethical.

The committee's analysis rested on the assumption that an employment agreement made the public employer a client of the attorneys. Given that relationship, the attorney owed the employer a fiduciary duty of conscientious fidelity (citing Marsh v. State Bar, Waterman v. State Bar, and Doyle v. State Bar), so a refusal to provide the agreed services would be contrary to the client's best interests; the attorney could not abandon existing litigation. As to delay, the committee read Business and Professions Code section 6067 (the attorney's oath to discharge duties to the best of his ability) together with former Rule 6-101(2) (reasonable diligence to accomplish the client's purpose with reasonable speed) and Business and Professions Code section 6128(b), which makes it a misdemeanor to wilfully delay a client's suit for the attorney's own gain (citing Silver v. State Bar).

The committee limited its opinion to the facts presented. It noted that duties may differ among various publicly employed attorneys; for example, a deputy public defender might properly decline representation because excessive caseloads prevent competent work, but the inquiry did not present that motivation. The committee expressly declined to decide whether refusing to accept new cases, while continuing to handle existing litigation, would be unethical, because it could not reach a consensus, and it noted that conflicts among an attorney's multiple public clients were not the subject of the opinion.

Common questions

Q: Can a government lawyer stop working on the agency's cases as leverage in a pay dispute?

A: No. The committee concluded that, where the public employer is the attorney's client, refusing to provide the agreed litigation services breaches the fiduciary duty owed under former Rule 6-101 and would be unethical.

Q: Is intentionally delaying the agency's litigation treated the same way?

A: Yes. The committee concluded that deliberately delaying existing litigation as a labor-negotiation tactic over personal salary and benefits violates the diligence duty under former Rule 6-101(2) and the attorney's oath, and noted that section 6128(b) makes wilfully delaying a client's suit for the attorney's own gain a misdemeanor.

Q: Did the opinion decide whether a public lawyer could refuse to take on new cases?

A: No. The committee expressly declined to decide whether refusing to accept new cases while continuing existing litigation would be unethical, because it could not reach a consensus.

Background and rules framework

The opinion interprets former Rule 6-101 of the California Rules of Professional Conduct (the duty to perform competently and to use reasonable diligence and speed), read together with the attorney's statutory oath and duties under Business and Professions Code sections 6067, 6103, and 6128(b). Competence and diligence are now addressed by Model Rules 1.1 and 1.3 and their California counterparts. The committee considered only the State Bar Act and the Rules of Professional Conduct; it did not address public labor law or constitutional law that might bear on the conduct.

Citations and references

Rules of Professional Conduct:

• Former California Rule 6-101 (competence and diligence), subdivision (2)

Statutes:

• Business and Professions Code section 6067 (attorney's oath)
• Business and Professions Code sections 6076, 6077 (rulemaking authority)
• Business and Professions Code section 6103 (duties of attorneys)
• Business and Professions Code section 6128(b) (wilful delay of a client's suit for gain)

Cases:

• Marsh v. State Bar (1930) 210 Cal. 303
• Waterman v. State Bar (1936) 8 Cal.2d 17
• Doyle v. State Bar (1976) 15 Cal.3d 973 [126 Cal. Rptr. 801]
• Silver v. State Bar (1974) 13 Cal.3d 134 [117 Cal. Rptr. 821]
• Ligda v. Superior Court (1970) 5 Cal.App.3d 811 [85 Cal. Rptr. 744]
• Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691]

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Original opinion: https://www.calbar.org/ethics/Opinions/1979-51.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

THE STATE BAR OF CALIFORNIA
STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1979-51

ISSUE:

Ethical responsibilities involved in labor action by attorneys employed by public agencies.

DIGEST:

It is unethical for an attorney employed by a public agency to engage in conduct such as refusing to represent the agency or utilizing delaying tactics in handling existing litigation for the purpose of gaining advantage in a dispute over salary and fringe benefits.

AUTHORITIES INTERPRETED:

Rule 6-101 of the Rules of Professional Conduct of the State Bar.

Business and Professions Code sections 6067, 6076, 6077, 6103 and 6128(b).

DISCUSSION

We have been requested to discuss the ethical propriety of attorneys employed by public agencies engaging in the following activities in connection with a dispute over salary and fringe benefits:

1. Refusing to represent existing clients in ongoing litigation; or

2. Intentionally delaying the course of existing litigation by the exercise of normally unused privileges.

Based upon the following considerations and assumption, the Committee is of the opinion that it would be unethical for the attorneys to engage in the conduct described above as Items 1 and 2.

For purposes of this opinion, the Committee has considered only the applicable provisions of the California State Bar Act (Bus. & Prof. Code, 6000 et seq.) and the applicable provisions of the Rules of Professional Conduct formulated and adopted pursuant to that Act (Bus. & Prof. Code, 6076, 6077). No consideration has been given to public labor law, constitutional law or other law which may validate the conduct condemned by the State Bar Act or the Rules of Professional Conduct. (Bates v. State Bar of Arizona (1977) 433 U.S. 350 [97 S.Ct. 2691].) Moreover, it is assumed for purposes of this opinion that there is an employment agreement between the attorneys and the public employer which provides that the attorneys will furnish litigation services to or on behalf of the public employer; i.e., that the public employer is a client of the attorneys.

It is this assumption that is critical to our analysis of the problem.1 Given this assumption, it is clear that the attorney owes a fiduciary relationship to the employer and is bound by the most conscientious fidelity to the interests of the client. (Marsh v. State Bar (1930) 210 Cal. 303, 307; Waterman v. State Bar (1936) 8 Cal.2d 17, 20; Doyle v. State Bar (1976) 15 Cal.3d 973, 978 [126 Cal. Rptr. 801].) A refusal to provide services pursuant to the employment agreement is likely to be contrary to the best interests of the client. Thus the attorney may not abandon existing litigation, as contemplated by the employment agreement.2

Section 6067 of the Business and Professions Code provides that "[e]very person on his admission shall take an oath ... faithfully to discharge the duties of any [an] attorney at law to the best of his knowledge and ability." Failure to perform the duties of an attorney in a fashion known to the attorney to be expeditious and consistent with the usual practices and procedures of other attorneys is not performing to the "best of his knowledge and ability." In addition, rule 6-101(2) of the Rules of Professional Conduct provides that an attorney shall not "[f]ail to use reasonable diligence and his best judgement in the exercise of his skill and in the application of his learning in an effort to accomplish, with reasonable speed, the purpose for which he is employed." Finally, an attorney who "wilfully delays a client's suit with a view to his own gain" is guilty of a misdemeanor. (Bus. & Prof. Code, 6128, subd. (b); see Silver v. State Bar (1974) 13 Cal.3d 134, 141 [117 Cal. Rptr. 821].) Thus, the attorney may not delay existing litigation as part of a labor negotiation strategy when the controversy in conflict concerns only salary and benefit considerations personal to the attorney.

The Committee notes potentially significant differences in duties and in relationships which may arise in practice among various publicly employed attorneys. However, the Committee has not been asked, and therefore does not undertake, to analyze this problem in such terms. For example, while it may be appropriate for a deputy public defender to refuse to represent individual clients as a result of a belief that effective, competent representation cannot be provided due to excessive caseloads or inadequate preparation, the inquiry presented does not postulate such motivation for the conduct specified. (See Ligda v. Superior Court (1970) 5 Cal. App.3d 811 [85 Cal. Rptr. 744].)

This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.

1 Publicly employed attorneys often find that they have more than one client. The potential for conflict which exists as between such clients is not the subject of this opinion.

2 The Committee does not decide the question of whether a refusal to accept new cases while continuing to handle existing litigation is unethical because the Committee was unable to reach a consensus.