Ethics Lawyer David C. Carr

Newsletter January 2018

Welcome to the Ethics Lawyer Newsletter for January 2018!


Heather Rosing

Michael Colantuono

Heather Rosing Elected First President of the California Lawyers Association, Colantuno Appointed First Chair of State Bar Board of Trustees

Heather Rosing, a partner at Klinedinst PC, has been elected the first president of the newly formed California Lawyers Association (CLA).  The CLA was formed from the spinoff of the former State Bar of California sections into a new private entity, part of the separation of regulatory and trade functions effectuated by the passage of legislation last year.  Ms.  Rosing brings a long resume to the new position as a former President of the San Diego County Bar Association and a member of State Bar Board of Trustees for several years, where she also served as Vice President.  In a related development, the last State Bar president, Michael Colantuono, was named by the California Supreme Court as the first Chair of the State Bar Board of Trustees, along with Jason Lee being named Vice Chair.  Last year’s legislation replaced the office of President, who had been elected by the Board of Trustees, with a Chair and Vice Chair appointed by the California Supreme Court.


Rule 3-310 Does Not Require Appointment of Independent Counsel for Insured

Centex Homes v. St. Paul Fire & Marine Insurance Company, Third App. Dist., case no. C081266, filed 1/22/18.  An insurance dispute arose between Centex and St. Paul over St. Paul’s defense of Centex as an additional insured in a construction defect case under a reservation of rights letter.  Centex filed a cross-complaint against subcontractors and St. Paul seeking appointment of independent counsel, aka Cumis counsel, under Civil Code section 2860.  Centex appealed from the trial court’s granting of St. Paul’s summary judgment motion, arguing that a conflict of interest existed between itself and the insurer.  The Court of Appeals affirmed.  No conflict was created by the mere reservation of rights where there is no evidence that coverage dispute had anything to do with the issues in the underlying case.  It is not clear that Rule of Professional Conduct 3-310(c)(1), which provides for representation of potentially conflicting interests only after informed written consent, is meant to apply to the insurer/insured relationship.  The Comment to the rule regarding Rule 3-310(c)(3) provides that it only applies where the insurer is a direct party to the action and not merely an insurer. The Court of Appeal found no reason to think a different rule should apply to Rule 3-310(c)(1), citing State Bar formal ethics opinion 1995-139 in support.

Attorney Reaction to Fingerprinting Proposal Overwhelmingly Negative

On January 27, 2018, The State Board of Trustees will consider the return from public comment on the proposed new California Rule of Court mandating that all active attorneys submit new fingerprints at their own expense (agenda item 704.)  As might be expected the public comment, chiefly from active attorneys, was overwhelmingly negative.  Of 2,604 comments received, 69% disapproved of the proposal. “The vast majority of commenters expressed concerns reflecting similar themes: that the rule is unnecessary, redundant, time-consuming, expensive, ineffective, insulting and a violation of privacy. Moreover, attorneys were understandably confused as to why the fingerprints they had submitted during the admissions process were not sufficient. Attorneys also had numerous questions regarding details of the re-fingerprinting process, such as costs and implementation
procedures, and how the State Bar plans to use criminal history information, specifically arrests, upon receipt.”  The full report, including the State Bar’s response to the criticism, is available here.


That’s Why They Call It Practice:  The Art and Science of Client Communication

The number one client complaint to the State Bar of California is lack of communication.  This isn’t always a matter for professional discipline but it should always be a matter of significant priority for outside lawyers who represent clients at all levels (by outside lawyers,  I mean to exclude those lawyers who are employed directly by government or corporations.)  Effective client communication is essential to maintain the health of the attorney-client relationship and competently represent the client.  Communication is so inextricably linked to competence that California did not even have a separately articulated duty to communicate until Business and Professions Code section 6068(m) was enacted in 1988.  Simple in its command (“It is the duty of an attorney…to respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services”) this fundamental obligation seems unduly complicated in its execution for many lawyers.  The reason is that the human beings are complicated on both sides of the transaction. Clients sometimes expect more from lawyers than can be delivered, such as empathy and warmth.  The stereotype of lawyers are unfeeling “sharks” is sometimes just the necessity of maintaining the appropriate professional distance to exercise independent judgment (ABA Model Rule 2.1.)  Conversely, lawyers sometimes dread being enmeshed in the clients’ emotional baggage.  A good rule of thumb here is that it is the client who you least want to communicate that you probably most need to communicate with. Modern technology gives us many ways to avoid communicating with clients, such as email and text.  Utilizing these means exclusively can result in talking past each other and allow misunderstanding.  There are times when a good old-fashioned telephone call and even (gasp!) an in person meeting are truly necessary and they often come at key points in the relationship, like the beginning.

State Bar formal ethics opinion 2012-184 addresses ethical issues involved in maintaining a virtual law practice and contains a valuable nugget of insight on  client communication:

“[Once an] Attorney determines that she has sufficient information to determine that she can provide the legal services at issue, on any matter which requires client understanding, Attorney must take reasonable steps to ensure that the client comprehends the legal concepts involved and the advice given, irrespective of the mode of communication used, so that the client is in a position to make an informed decision. (Cal. State Bar Formal Opn.No. 1984-77.) Attorney is not truly “communicating” with the client if the client does not understand what Attorney is saying – whether because of a language barrier or simply a lack of understanding of the legal concepts being discussed. This would be the case whether Attorney is communicating with the client in person, on the phone, by letter, or over the internet.”

This difference between “communicating” and merely exchanging words is the art and science of client communication. Experience makes it easier but it is something every attorney needs to master.