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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What must a California lawyer do when charging a flat fee, refunding an advance flat fee after early termination, or renegotiating a flat fee mid-engagement?
The opinion concludes a California lawyer must clearly state which services the flat fee covers and when it is earned, must refund any unearned portion of an advance flat fee on early termination (eve…
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 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…
What must a California civil-trial lawyer do when a client's witness has testified or will testify falsely?
Under California Formal Opinion 2019-200, an attorney may use evidence that is merely suspected to be false but must refuse to present testimony known to be perjured even on the client's instruction; …
May a California lawyer who must withdraw because the client's claim lacks merit try to settle the case before withdrawing?
Per California Formal Opinion 2019-198, yes. The attorney's duty under Rule 1.16(d) to avoid reasonably foreseeable prejudice may be satisfied by negotiating a settlement before withdrawal, provided t…
What may a California lawyer say (and not say) to opposing counsel or a settlement officer during settlement negotiations?
Per California Formal Opinion 2015-194, false statements of material fact and implicit misrepresentations during settlement negotiations are prohibited, but statements about a party's negotiating goal…
When a California lawyer must withdraw because the client is pursuing the case for improper purposes, what may the lawyer tell the court about the reason, and what must the lawyer do if ordered to disclose confidential client communications in camera?
Per California Formal Opinion 2015-192, the lawyer may disclose only as much as is reasonably necessary to demonstrate the need to withdraw; ordinarily 'ethical considerations require withdrawal' or '…
When a California law firm dissolves, what does each attorney (lead partner, associate on the matter, partner unrelated to the matter) owe each client of the firm under the duty to avoid foreseeable prejudice on withdrawal?
Per California Formal Opinion 2014-190, every attorney at the dissolving firm (regardless of partner/associate status or prior contact with the client) owes the client a duty under former Rule 3-700(A…
In a transactional negotiation, does a California lawyer have a duty to alert opposing counsel to (A) an apparent material error opposing counsel made or (B) a material change the lawyer made in revised contract language?
Per California Formal Opinion 2013-189, no duty arises in Scenario A if the lawyer did not induce opposing counsel's error; in Scenario B, once the lawyer realizes that an unintended defect in the red…
May a former senior associate disclose client confidences to her own attorney to evaluate a wrongful discharge claim against her old firm, and may either of them publicly disclose those confidences in the litigation?
Per California Formal Opinion 2012-183, the associate may privately disclose to her own attorney so much of the firm's client's confidential information as is necessary to evaluate the claim, but neit…
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…
When a settlement check in a California personal injury matter is made jointly payable to the client, the former attorney with a charging lien, and successor counsel, may the former attorney refuse to endorse it without violating former Rule 4-100(B)(4), and what must she do with the undisputed portion the client demands?
Per California Formal Opinion 2009-177, yes, the former attorney may refuse to endorse, because endorsing would extinguish her charging lien under Civil Code section 2913 (per Feldsott). But she must …
In a California case under a fee-shifting statute, may plaintiff's counsel block a settlement her client wants to accept because it waives statutory fees, and does defense counsel violate any ethical rule by recommending or conveying a fee-waiver settlement offer, either in a particular case or as a general practice?
Per California Formal Opinion 2009-176, no on all three counts. Plaintiff's counsel must inform the client of a fee-waiver settlement offer and consummate it in accordance with the client's wishes, ev…
When a California client tells her new lawyer not to notify her prior lawyer (who has a valid charging lien on the recovery) of a settlement, what may and must the successor lawyer do with the disputed fees held in her trust account?
Per California Formal Opinion 2008-175, the successor lawyer must first counsel the client on the adverse consequences of concealing the settlement, then, if the client persists, must nonetheless disc…
When a California attorney's employment terminates and the client demands electronic versions of e-mail, pleadings, discovery, the deposition and exhibit database, and transactional documents, must the attorney release them, and may the attorney refuse on the ground that they contain other-client metadata?
Per California Formal Opinion 2007-174, yes. Former Rule 3-700(D)(1) extends to existing electronic items, with no 'balancing test' for client need versus attorney burden, and applies because the item…
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…
What may a California lawyer do for a missing client who already authorized settlement of claims within a defined range, and how must the lawyer handle settlement proceeds and fees?
Per California Formal Opinion 2002-160, an attorney who has been given express authority to settle claims at or above a specified percentage of face value retains independent ethical duties (competenc…
How long must a California lawyer keep a former client's closed file, and when may the lawyer destroy it?
Per California Formal Opinion 2001-157, original papers and property the client gave the lawyer (including documents delivered under Probate Code section 710) are governed by the law of deposits or th…
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 discovers that the client is committing an ongoing fraud and the client has used the lawyer's services to advance it, what may the lawyer say, what must the lawyer refuse to do, and when must the lawyer withdraw?
Per California Formal Opinion 1996-146, the lawyer must preserve client confidences under Business and Professions Code section 6068(e) and may not disclose the fraud, but also must not participate in…
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…
After a California client discharges counsel in a pending litigation matter but no substitution of counsel has been filed, what are the lawyer's ongoing duties to the client, and may the lawyer hold the client's file until the substitution is filed?
Per California Formal Opinion 1994-134, the lawyer remains the attorney of record (and is bound by competence and protect-from-prejudice duties) until the substitution form is filed or the tribunal ot…
When a criminal defense lawyer has been relieved by successor appellate counsel, what must the former trial lawyer turn over and what must she discuss, including questions touching on potentially ineffective assistance?
Per California Formal Opinion 1992-127, trial counsel must turn over the entire client file (correspondence, pleadings, transcripts, exhibits, expert reports, and work product) and must volunteer info…
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…
If a California civil defense lawyer has been served with a complaint, the answer is due, and the client has disappeared, what may the lawyer do, and what must the lawyer disclose to the court or to opposing counsel?
Per California Formal Opinion 1989-111, the attorney must take reasonable steps to avoid reasonably foreseeable prejudice (including filing the answer where appropriate), make a diligent effort to loc…
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…
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…
Must a criminal defense lawyer reveal a client's prior conviction at sentencing if it's a public record and the court doesn't know?
The committee concluded that a lawyer may not reveal the client's prior conviction without consent, because it is a protected confidence and secret even though it is a public record, but the lawyer al…
When a law firm dissolves or a lawyer leaves, what must the firm and lawyers tell clients about choosing counsel?
The committee concluded that both the firm and the departing attorneys owe a fiduciary duty to give clients fair, accurate, and timely notice of the change so each client can make an informed choice o…
What must a lawyer do when a client commits perjury during a civil bench trial?
The committee concluded that a lawyer may not disclose a client's testimonial perjury without consent, but must pursue remedial steps, move to withdraw if those fail, and if withdrawal is denied may n…
What are a legal services lawyer's ethical duties to existing clients if the program's funding is cut or terminated?
The committee concluded that legal services lawyers and their programs may not abandon existing clients merely because funding is reduced or cut off; they may withdraw only as former Rule 2-111 allows…
Can a lawyer disclose a damaging expert report to third parties at risk if the client instructs the lawyer not to disclose it?
The committee concluded that, where the client instructed the lawyers not to disclose an engineer's report warning that a structure might fail in an earthquake, the lawyers could not disclose it to th…
What must a lawyer do to keep a shared secretary or other nonlawyer staff from disclosing client confidences, and what happens after a leak occurs?
The committee concluded that lawyers must take steps to ensure secretaries and other nonlawyer employees understand their duty not to disclose client confidences, and that after a harmful leak the law…
Can a prosecutor interview a represented defendant as a possible witness in another case, and can one defense lawyer keep representing two defendants once one may testify against the other?
The committee concluded that a district attorney may not contact a defendant he knows to be represented by counsel, even to discuss another defendant's case or uncharged conduct, and that defense coun…
Can a lawyer delay a client's divorce case to pressure the client into paying fees?
The committee concluded it was not proper for an attorney to delay a divorce case because of nonpayment while remaining the attorney of record, since that conflicts with the client's interest in promp…
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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.