The eyes of the nation and of the world have been on crucial issues of racial inequity in the past few weeks following the death of George Floyd at the hands of police. These issues penetrate to the very essence of how we can maintain a just society — issues that likewise go to the heart of lawyering. One of the many ways that the legal community does the day-to-day work of maintaining an equitable society is by adhering to our ethical standards, which strongly call on us to practice our craft in line with the highest ideals of integrity. These standards are always being refined and interpreted through the work of state and national ethics committees and the opinions they issue to guide practitioners.
Two significant ethics opinions have been issued in recent days.
California finally weighs in on pot practice
The Golden State has the most lawyers in the nation, and also the largest cannabis market. However until late last month, the state bar’s ethics committee had been silent on the burning issue for lawyers seeking to counsel cannabis clients: Can they provide representation with respect to conduct that is state-legal but that remains federally illegal? As we noted at the time, city bars in San Francisco and Los Angeles took the lead on giving guidance to the state’s lawyers.
Now the state bar committee has weighed in, and unsurprisingly given the green light to lawyers who want to represent clients in all aspects that are “reasonably required” to make their clients’ businesses “functional and profitable in compliance with California law,” says the committee’s opinion.
Similar to Model Rule 1.2(d), Rule 1.2.1 of the California Rules of Professional Conduct bar counseling or assisting a client to engage in criminal, fraudulent or illegal conduct. However, lawyers may nonetheless discuss the legal consequences of any proposed course of conduct with a client. Under California’s comment  to Rule 1.2.1, a lawyer may “advise a client regarding the validity, scope and meaning of California laws that might conflict with federal or tribal law,” and advise on complying with California law “even if the client’s actions might violate the conflicting federal” law.
Interpreting the rule and comment, the Committee advised that California lawyers could provide legal services related to state-legal cannabis. They may not advise the client to violate federal law, the Committee warned, and cannot provide advice or assistance in violating state or federal law in a way that avoids detection of those violations. Lawyers must also advise the client about the conflict between state and federal laws on cannabis, including the potential for federal criminal liability and the associated penalties.
With 33 states and the District of Columbia taking steps to legalize cannabis for medical or recreational use or both, California’s guidance for lawyers may be influential elsewhere as well.
ABA cautions against “hearing too much” from prospective clients
In its latest ethics opinion, issued Tuesday, the ABA’s Standing Committee on Ethics and Professional Responsibility warned about the conflicts of interest that can arise from prospective-client interviews where a talkative potential client might over-share specific information before you decide whether to take on the matter.
Under Model Rule 1.18, even if no attorney-client relationship ensues as a result of a preliminary consultation, learning information from a prospective client creates duties of confidentiality that can bar you (under Rule 1.9) from taking on substantially-related future matters adverse to the prospective client.
In particular, the Committee advised, “Under Model Rule 1.18 a lawyer is prohibited from accepting a new matter if the lawyer received information from the prospective client that could be significantly harmful to the prior prospective client in the new matter.”
The kind of information that could be “significantly harmful” depends on the context. But, drawing from cases and state ethics opinions, the Committee gave some examples of topics to avoid — at least until you decide whether to take on the matter:
- settlement issues like pricing and timing;
- detailed accounts of strategic thinking;
- projections of potential claims and defenses;
- legal theories regarding a case;
- client financial information;
- terms and structures of proposed transactions.
Bottom line: patience pays. Not hearing (or saying) too much before you determine that you will accept a new client or matter is the way to avoid learning “significantly harmful” information that can raise a conflict down the road if the consultation doesn’t result in an attorney-client relationship.