State Bar of California Ethics Opinions
Free plain-English summaries of legal ethics opinions issued by the State Bar of California, with full citations and source links on every page.
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Are California lawyers required to have a succession plan, and what duties does an assisting attorney take on?
California has no rule that expressly mandates a succession plan, but the combined duties of competence, diligence, communication, withdrawal, safekeeping client property, and supervision require ever…
When a California lawyer or law-firm colleague has a mental impairment affecting their practice, what do that lawyer, their subordinates, and their supervisors have to do?
An impairment does not excuse the impaired lawyer from any duty. It triggers parallel duties for that lawyer's subordinates, supervisors, and other colleagues who know of the conduct, including commun…
What duties does a California lawyer owe to a prospective client who shared confidential information during an interview that did not result in representation?
Per California Formal Opinion 2021-205, the interviewing lawyer owes a prospective client the same duty of confidentiality owed to a current or former client. The lawyer (and, by imputation, the law f…
What ethical duties does a California lawyer owe when a third-party litigation funder is involved in the case?
Per California Formal Opinion 2020-204, lawyers must preserve independent professional judgment, comply with the duty of confidentiality, obtain the client's informed written consent before sharing co…
What ethical duties do a departing California lawyer and the lawyer's old firm owe to clients during the transition?
Per California Formal Opinion 2020-201, both the departing lawyer and the law firm must put the client's interests first, give timely notice to clients for whom the departing lawyer is principally res…
When can a California lawyer consult outside counsel or law-firm in-house counsel about a current client's matter without creating a conflict and what must the lawyer tell the client?
Per California Formal Opinion 2019-197, the act of seeking legal advice about ethical compliance is not itself a conflict and need not be disclosed; once the lawyer learns of an error that could preju…
If a California lawyer represents a debtor in a pro bono simple, no-asset Chapter 7 bankruptcy and concurrently represents one of the debtor's creditors in an unrelated matter, must the lawyer obtain informed written consent from both clients?
Per California Formal Opinion 2014-191, no informed written consent is required under former Rule 3-310(C)(3) because a simple, no-asset Chapter 7 is an in rem proceeding that does not create direct a…
When a third party pays the lawyer's fees for the client and unused funds remain in the trust account at the end of the case, who gets the refund?
Per California Formal Opinion 2013-187, absent a fee agreement specifying otherwise, the lawyer must return the surplus to the third-party payor, not the client, because the concept of 'refund' implie…
When a California lawyer needs to serve a discovery subpoena on a current client of the lawyer's firm in an unrelated matter, is that a conflict, and can it be cured by informed written consent?
Per California Formal Opinion 2011-182, serving a discovery subpoena on a current client is adverse and a conflict, but the firm may accept the new representation if it obtains informed written consen…
When does a California lawyer violate the rule against inducing a substantial gift from a client?
Per California Formal Opinion 2011-180, a lawyer who demonstrates by words or conduct an intent to cause a client to give the lawyer a substantial gift violates former Rule 4-400, and whether a gift i…
When a California lawyer settles a fee dispute with a client, may the settlement agreement include a general release and a Civil Code section 1542 waiver that also covers legal malpractice, and what does the lawyer have to do first?
Per California Formal Opinion 2009-178, a lawyer must promptly disclose to the client the facts giving rise to any actual or potential malpractice claim before entering into such a settlement. The law…
Does the inclusion of a charging lien in a contingency fee agreement require California compliance with former Rule 3-300, including written advice to consult independent counsel and written client consent?
Per California Formal Opinion 2006-170, no. A charging lien is a natural corollary of a contingency fee agreement and does not create an 'adverse interest' under former Rule 3-300, distinguishing *Fle…
Does a law-firm website disclaimer that an 'attorney-client relationship' or 'confidential relationship' is not formed defeat a visitor's reasonable expectation that information typed into the firm's intake form will be kept confidential?
Per California Formal Opinion 2005-168, no. A bare disclaimer that no attorney-client or 'confidential relationship' is formed does not defeat the visitor's reasonable belief that the consultation is …
What ethical duties does a California lawyer owe when hiring an outside contract attorney to make court appearances, and what duties does the contract attorney owe to the hiring lawyer's client?
Per California Formal Opinion 2004-165, the hiring lawyer must disclose the contract attorney's involvement when it is a significant development under former Rule 3-500 and Business and Professions Co…
When outside corporate counsel also represents an officer personally on unrelated matters, what does she do if she learns the officer may have harmed the corporation?
Per California Formal Opinion 2003-163, when outside counsel represents both the corporation and an officer-constituent (on unrelated matters) and learns information that creates a conflict, the analy…
Can a California lawyer publicly advocate civil disobedience (here, refusal to pay taxes) and simultaneously maintain a tax law practice?
Per California Formal Opinion 2003-162, an attorney has First Amendment rights to publicly advocate civil disobedience, but in advising clients she may not counsel them to violate the law unless she r…
When can a casual or non-office communication from a non-client to a California lawyer create a duty of confidentiality, even though no attorney-client relationship is formed?
Per California Formal Opinion 2003-161, a duty of confidentiality may attach to a non-office communication either because an implied-in-fact attorney-client relationship was formed, or, even without s…
Can a California lawyer refer a prospective client to an independent broker for a real-estate loan to pay legal fees, with the loan proceeds going into a third-party escrow from which the lawyer is paid?
Per California Formal Opinion 2002-159, the lawyer may make the referral and use the escrow arrangement so long as the lawyer receives no compensation for the referral, has no undisclosed business or …
Can a public defender's office set up a physically separate alternate defender unit so the two operate as separate firms for conflict purposes?
Per California Formal Opinion 2002-158, a Public Defender (PD) and a physically separated Alternate Defender Office (ADO) following the People v. Christian (1996) model can be treated as separate firm…
When a city attorney advises both the city council and the mayor on the same matter and they take antagonistic positions, does that representation create a Rule 3-310(C) conflict of interest?
Per California Formal Opinion 2001-156, ordinarily no, because the city attorney has only one client (the city itself, acting through its constituent sub-entities and officials under former Rule 3-600…
When a California lawyer also offers non-legal services like investment advising, when do the Rules of Professional Conduct apply, can the lawyer market with 'Esq.' and tax credentials, and is a referral commission from a portfolio manager a Rule 1-320 fee-share?
Per California Formal Opinion 1999-154, when the same lawyer is providing legal and non-legal services to a client, all of the services are subject to the Rules; Rule 1-400 applies to non-legal market…
Can a California lawyer jointly represent a close corporation and the controlling shareholder in a lawsuit brought by the only other shareholder against both, and who provides the corporation's consent?
Per California Formal Opinion 1999-153, under the facts presented a lawyer may jointly represent the corporation and the controlling shareholder under former Rule 3-310(C)(1) only if their interests a…
If one lawyer in a California firm received material confidential information from a former client, may another lawyer in the same firm accept a representation adverse to that former client without obtaining the former client's informed written consent?
Per California Formal Opinion 1998-152, the second lawyer is not subject to discipline under former Rule 3-310(E) because the rule references the individual 'member', not the firm; the imputed-knowled…
When discovery sanctions are sought (or awarded) against a California lawyer and the client jointly, what must the lawyer do to satisfy the duties to inform the client, oppose the motion, and (where necessary) withdraw?
Per California Formal Opinion 1997-151, a motion for discovery sanctions against the lawyer and client is ordinarily a significant development the lawyer must communicate under former Rule 3-500; an o…
If a California lawyer prepares living-trust documents that a non-lawyer marketer sells to the public through seminars, with the marketer steering every prospect toward a living trust and controlling the engagement, what California ethics rules does the lawyer violate?
Per California Formal Opinion 1997-148, when a lawyer permits a non-lawyer who markets living-trust packages to hold out to the public that the lawyer will prepare the documents, while letting the mar…
When a California lawyer or law firm provides non-legal services to a client, directly, through a non-lawyer employee, or through a lawyer-owned entity, what conflicts-of-interest, confidentiality, advertising, and fee-sharing rules apply?
Per California Formal Opinion 1995-141, a lawyer may render non-legal services to a client directly, through a non-lawyer employee, or through a lawyer-owned entity, but must comply with the Rules of …
Can a California lawyer advise a client to buy insurance, refer the client to a specific insurance agent, and accept a commission from that agent for the referral?
Per California Formal Opinion 1995-140, a lawyer may do so only by making full written disclosure under former Rule 3-310(B)(4) of the referral arrangement and its actual and reasonably foreseeable ad…
When a California lawyer is hired by an insurer to defend an insured, who is the client when the lawyer learns information that calls coverage into question, and what must the lawyer do?
Per California Formal Opinion 1995-139, the lawyer owes loyalty to the insured. Information adverse to the insurer learned in defense of the insured may not be disclosed to the insurer under Business …
When a California lawyer representing a partnership receives conflicting instructions from two partners, whose direction must the lawyer follow, and what must the lawyer do if the dispute is unresolved?
Per California Formal Opinion 1994-137, the partnership is the client under former Rule 3-600(A) and the lawyer takes direction from the partner or other constituent authorized to oversee the represen…
Can a California lawyer contract with a client at the outset of representation in a civil rights case that the client irrevocably assigns to the lawyer the right to seek and collect attorney's fees under 42 U.S.C. section 1988, so the client cannot waive that right in settlement?
Per California Formal Opinion 1994-136, such agreements are not prohibited in 42 U.S.C. section 1988 actions so long as the lawyer fully complies with former Rule 3-300 (business transactions or pecun…
Under a California contingent fee agreement, if the contract is silent on payment from a structured settlement, may the lawyer take her fee in full from the up-front cash payment, or can she agree in advance to do so?
Per California Formal Opinion 1994-135, where the contract is silent, the lawyer may take her fee only on the same pro rata basis the client receives compensation; she cannot front-load her fee at set…
May a California lawyer who successfully defended B against A's lawsuit later represent A in a malpractice action against A's former attorney for losing that lawsuit?
Per California Formal Opinion 1993-133, the committee opined that absent A's lawyer's consent (or termination of that representation), former Rule 2-100 prohibits the lawyer from communicating with A …
May a California attorney who serves on a corporation's board accept representation of a client who proposes a transaction with the corporation when the corporation has separate counsel?
Per California Formal Opinion 1993-132, the attorney must observe Rule 2-100's bar on communication with represented persons (recusing from board deliberations on the matter) and is bound by fiduciary…
Under former California rules, may a probate lawyer receive the statutory probate legal fee from the estate and, separately, personal compensation from the executor for performing some of the executor's duties?
Per California Formal Opinion 1993-130, yes, but only if (i) the estate is not paying twice for the same service, (ii) the lawyer obtains the executor's informed written consent, (iii) the agreement c…
How many firms can a California 'of counsel' lawyer simultaneously serve, and what conflicts checking is required across those firms?
Per California Formal Opinion 1993-129, there is no fixed numerical limit on 'of counsel' relationships; the limit is qualitative. The relationship must be 'close, personal, continuous, and regular' u…
May a California law firm defend the same client a former government prosecutor in the firm investigated, by screening the former prosecutor?
Per California Formal Opinion 1993-128, yes, if the firm effectively screens the former prosecutor from any direct or indirect participation in the defense and the former prosecutor receives no 'valua…
May California lawyers organize or participate in a temporary employment agency that places contract attorneys with law firms, and how should fees and screening be structured?
Per California Formal Opinion 1992-126, yes, lawyers may organize or participate in such an agency provided they monitor for and address breach of confidentiality, conflicts of interest, independence …
May a California attorney-client retainer agreement include a mandatory binding arbitration clause for future malpractice claims against the attorney?
Per California Formal Opinion 1989-116, yes. The committee opined that nothing in the rules prohibits an arbitration provision in the initial retainer. For an initial retainer (no prior attorney-clien…
Under former California rules, may a lawyer condition representation on the client's advance blanket waiver of the right to disqualify the lawyer in any later matter, regardless of whether confidential information learned would be relevant?
Per California Formal Opinion 1989-115, the agreement is not per se improper. If the client is 'informed' within former Rule 3-310(F), the waiver is valid for confidentiality and for potential conflic…
In a federal civil rights or other private-attorney-general case, must a California lawyer tell the client that the client can settle by waiving the statutory attorney's fees, even though doing so will leave the lawyer unpaid?
Per California Formal Opinion 1989-114, yes. Because the U.S. Supreme Court treated statutory fee awards as the client's property, the lawyer's duties of communication under former Rules 3-500 and 3-5…
If a California lawyer represents a parent corporation, may the lawyer take a case against the parent's wholly-owned subsidiary that the lawyer has never represented?
Per California Formal Opinion 1989-113, yes, with two limits. Under former Rules 3-310(B) and 3-600, the corporate entity actually represented is the client; the parent is a constituent and the subsid…
May a California attorney institute conservatorship proceedings for a client who appears to be incompetent but who has not consented to the conservatorship?
Per California Formal Opinion 1989-112, no. The committee opined that initiating conservatorship over the client's objection would force the attorney to disclose client secrets in violation of Busines…
Is it unethical for a California attorney to represent two unrelated clients while arguing opposite sides of the same legal question before the same federal judge?
Per California Formal Opinion 1989-108, no. The committee opined that even where there is a substantial likelihood that one or both clients will be prejudiced, taking opposite legal positions for diff…
Under former California Rule 2-109, may a lawyer offer or accept a settlement provision that bars plaintiff's counsel from later representing anyone in litigation or arbitration against the settling defendant?
Per California Formal Opinion 1988-104, no. Both the offering and the accepting lawyer violate former Rule 2-109, which prohibits a member from being party to any agreement, whether or not in connecti…
What does a California lawyer do when the client demands the entire personal-injury settlement be paid to the client, but the lawyer and client previously acknowledged a health care provider's lien on the funds?
Per California Formal Opinion 1988-101, the committee identified interpleader as the safest course. As an alternative, the committee opined the lawyer may contact both parties stating the existence an…
When a California lawyer represents a mother as guardian and her minor child and discovers the mother has misappropriated trust funds for the child, may the lawyer disclose the misappropriation to the court?
Per California Formal Opinion 1988-96, no. The committee opined that disclosure of the mother's misappropriation, learned through the representation, would breach the lawyer's duty under Business & Pr…
Can a contingent-fee lawyer recommend a structured settlement, and how is the lawyer's fee calculated on one?
The committee concluded that a lawyer may use structured settlements and may recommend that a client accept or reject one even though the lawyer's contingent fee is affected, because contingent-fee ar…
Must a lawyer disclose and get consent when a friend, or a spouse who is the courtroom bailiff or reporter, is involved in the case?
The committee concluded that a criminal defense lawyer must disclose and obtain the client's consent when a close personal friend who is a police officer will testify against the client on a contested…
Is it an ethics violation in California for a lawyer to have a sexual relationship with a client?
The committee concluded that no California rule expressly prohibits a lawyer-client sexual relationship and that it is not a per se violation, but that such a relationship can violate the competence r…
Can an insurance company use its own salaried in-house lawyers to defend insureds in liability suits?
The committee concluded that an insurer's in-house counsel may defend insureds without aiding the unauthorized practice of law, provided the company does not control or interfere with the lawyers' pro…
Can one law firm be listed as 'of counsel' to another, including an out-of-state firm?
The committee concluded that one law firm may be 'of counsel' to another, including an out-of-state firm, with no per se bar, but the designation must not confuse or mislead the public (the out-of-sta…
Can a lawyer take a case against someone who once consulted the lawyer about a different matter but never retained them?
The committee concluded that a person who consults a lawyer about a matter is a client for confidentiality purposes even if no retention follows, so the lawyer may take a later matter adverse to that …
Can a married deputy public defender and deputy district attorney work opposite sides of the same criminal case?
The committee concluded that a deputy public defender may represent an accused prosecuted by the deputy district attorney spouse only with disclosure of the marriage and written consent from the accus…
Can a lawyer serve as the party-designated arbitrator for a client they already represent?
The committee concluded that a lawyer who already represents a client may serve as that client's party-designated arbitrator in a contractual partisan arbitration, but remains bound by attorney duties…
Can a California lawyer take a divorce case on a contingent fee?
The committee concluded that a contingent fee in a dissolution proceeding is not per se improper if it is not promotive of divorce and the fee is not unconscionable; recovering past due spousal or chi…
Can a California lawyer who is also a licensed real estate broker act in both roles in the same real property transaction for a client?
The committee concluded that a lawyer may also act as a licensed real estate broker in the same transaction, but the broker work is so law-related that the lawyer must meet State Bar standards through…
Can a lawyer donate legal services to be auctioned off by a charity as a fundraiser?
The committee concluded that nothing expressly prohibits a lawyer from donating legal services for a charitable auction, but the lawyer must observe several rules: accurately describe the services, av…
Can the law firm of a city council member sue the city for tort plaintiffs if the city council consents?
The committee concluded that the law firm of a city council member may not represent tort plaintiffs in actions against the city even with the council's informed consent, because such a suit creates a…
Can a lawyer take a promissory note or a security interest from a client to secure payment of fees?
The committee concluded that a lawyer may take a promissory note or a lien or other security interest to protect fees for services, but only in strict compliance with former Rule 5-101, which required…
Must a public defender withdraw from representing two clients when one becomes an informant against the other in a separate case?
The committee concluded that once counsel learns one client is trying to become, or has become, an undercover informant against another client, a conflict exists and counsel must withdraw from represe…
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Legal ethics opinions from the State Bar of California interpret the rules of professional conduct for working lawyers, in response to inquiries from members and committees. They are not binding like court discipline decisions, but courts and discipline boards treat formal opinions as substantial guidance on how the rules apply. Every opinion above has a plain-English question and short answer, plus a link to the original source on the bar's site.