CABAR 2004

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?

Short answer: 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 Code section 6068(m), address it in the written fee agreement if anticipated at engagement, and remains responsible for competently supervising the contract attorney. The contract attorney must comply with the rules on competence, confidentiality, advertising, and conflicts; a generic disclaimer of an attorney-client relationship in the contract service's promotional materials does not eliminate those duties.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original ethics opinion (PDF)

State Bar of California COPRAC Formal Opinion 2004-165: Outside Contract Appearance Lawyers

Short answer: The opinion concludes that the hiring lawyer must disclose the use of a contract appearance attorney to the client when that use is a significant development, address it in the written fee agreement if anticipated at engagement, and remain responsible for competent supervision. The contract attorney, in turn, takes on ethical duties to the hiring lawyer's client, including competence, confidentiality, and conflicts compliance, regardless of a generic disclaimer in the contract service's promotional materials.

Currency note

This opinion was issued in 2004, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former Rules 1-400, 2-200, 3-110, 3-310, and 3-500, together with Business and Professions Code sections 6068(e), 6068(m), 6147, and 6148. Current Rules 1.1 (competence), 1.4 (communication), 1.5 (fees), 1.6 (confidentiality), 1.7 (current-client conflicts), 1.9 (former-client conflicts), 5.1 (supervisory lawyer responsibilities), 5.3 (supervision of non-lawyers), and 7.1 (communications about lawyer's services) now address these issues. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule reference.

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 hypothetical: Lawyer represents clients in various litigation matters and uses Court Appearance Service (CAS), an outside firm operated by lawyers, to send independent attorneys to law and motion hearings, status conferences, depositions, and other matters. CAS attorneys are not employees of Lawyer's firm. CAS bills Lawyer hourly. CAS advertises its services in newspapers, magazines, flyers, telephone directories, and other media directed to the legal profession, including truthful information about pricing and availability, and a disclaimer that no attorney-client relationship arises between CAS or its lawyers and the clients of the lawyers who hire CAS.

On the hiring Lawyer's duties: competence under former Rule 3-110 includes a duty to adequately supervise the CAS lawyer; delegation does not delegate the underlying duty. If the CAS lawyer cannot be adequately prepared, Lawyer may not send her in his place; in exigent circumstances, Lawyer should attempt to continue the matter or limit the scope of the appearance to what the CAS lawyer can handle competently. The duty to inform the client under former Rule 3-500 and Business and Professions Code section 6068(m) requires Lawyer to inform the client of the CAS arrangement when it is a "significant development." The committee referenced its 2003-161 reasoning and California State Bar Formal Opinion 1994-138 for the test, identifying three non-exhaustive factors (whether responsibility is changing, whether the CAS lawyer will perform a significant portion of work, whether staffing changed from what was represented) and added a fourth: the client's reasonable expectation under the circumstances. Footnote 4 cited In re Wright (C.D. Cal. Bankr. 2003) 290 B.R. 145, which conditioned fee recovery on prior court disclosure and client consent in Chapter 13 cases.

On timing and scope of disclosure: when possible, disclose before the CAS appearance occurs. If Lawyer anticipates using CAS lawyers at the outset, address it in the written fee agreement, and if CAS's fees are charged to the client as a disbursement, Business and Professions Code sections 6147 and 6148 require the fee agreement to state the client's obligation for those charges.

On the fee-division rule: former Rule 2-200 applies if CAS or the CAS lawyer is not Lawyer's employee. Whether the relationship is one of employment is a legal question the committee does not decide. Assuming non-employment, the committee applied the three-part test from California State Bar Formal Opinion 1994-138 (compensation tied to work performed and paid regardless of client payment; not negotiated or based on client fees; no percentage-fee expectation) and concluded that ordinary hourly billing by CAS to Lawyer does not trigger Rule 2-200. Footnote 9 cautioned that local court rules (cited In re Wright) may still require client consent as a prerequisite to court-awarded fees.

On confidentiality under Business and Professions Code section 6068(e): competent representation may require Lawyer to disclose client confidences to the CAS lawyer, identified as confidential. The committee analogized to California State Bar Formal Opinion 1997-150 on outside vendor disclosures. Internal CAS information-handling must be designed to prevent inadvertent disclosure to other CAS attorneys.

On the CAS lawyer's duties: the committee held that a CAS attorney appearing in court for Lawyer's client steps into Lawyer's shoes and forms an attorney-client relationship with the client for purposes of analyzing ethical duties, citing Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441 and In re Brindle (1979) 91 Cal.App.3d 660. CAS's disclaimer of an attorney-client relationship does not negate this conclusion (distinguishing the Gionis disclaimer framework discussed in 2003-161, because CAS willingly provided legal services). Even if no attorney-client relationship were found, the CAS lawyer would still owe ethical duties under former Rule 3-310(E), citing Allen v. Academic Games League of America, Inc. (C.D. Cal. 1993) 831 F.Supp. 785 and California State Bar Formal Opinion 1981-63.

On CAS's lawyer-to-lawyer advertising: the committee re-affirmed California State Bar Formal Opinion 1981-61, which concluded that lawyer-to-lawyer communications are outside the scope of former Rule 1-400 because the rule is designed to protect lay persons from fraud and undue influence. Business and Professions Code sections 6157-6158.7 do not by their terms limit application to "clients," but the committee read them similarly given their legislative purpose; the committee noted that no court had interpreted their scope and cautioned that false, misleading, or deceptive language in lawyer-to-lawyer advertising might still trigger sections 6158.4 and 6158.7 civil and disciplinary consequences. Business and Professions Code section 6106 (moral turpitude) remains available regardless.

Common questions

Q: When must the hiring lawyer tell the client that an outside contract attorney will appear?

A: Per the opinion, when the use of the outside attorney is a "significant development" under former Rule 3-500 and Business and Professions Code section 6068(m). The committee identified four non-exhaustive factors drawn from Opinion 1994-138 and added one: change of responsibility for the matter; significant portion of work being handled by the new attorney; staffing change from what was represented to the client; and the client's reasonable expectation under the circumstances.

Q: Does the hiring lawyer have to put the arrangement in the written fee agreement?

A: Per the opinion, if the hiring lawyer anticipates the use of contract appearance attorneys at the outset, the issue should be addressed in the written fee agreement. If the contract attorney's fees are charged to the client as a disbursement, Business and Professions Code sections 6147 and 6148 require the fee agreement to state the client's obligations for those charges to the same extent as other costs.

Q: Is paying an hourly fee to the contract attorney a regulated fee division under former Rule 2-200?

A: Per the opinion, no, provided three criteria from California State Bar Formal Opinion 1994-138 are met: the payment to the outside lawyer is for work performed and is paid regardless of client payment, the amount is neither negotiated nor based on fees paid by the client, and the outside lawyer has no expectation of a percentage fee. Billing the CAS fee as a cost on the lawyer's bill or having CAS bill the client directly also avoids a regulated fee division.

Q: Does the contract attorney owe ethical duties to the hiring lawyer's client?

A: Per the opinion, yes. The committee concluded that a CAS attorney who appears in court for Lawyer's client steps into Lawyer's shoes and forms an attorney-client relationship for purposes of ethical duties, regardless of CAS's disclaimer. Even if no attorney-client relationship were found, duties of confidentiality and conflicts compliance would still attach under the framework of Opinions 1981-63 and 2003-161 and Allen v. Academic Games League of America, Inc.

Q: Does CAS's disclaimer in its promotional materials negate the contract attorney's ethical duties?

A: Per the opinion, no. CAS's disclaimer in its advertising that no attorney-client relationship arises between it and the hiring lawyer's clients does not by itself prevent the formation of such a relationship when a CAS attorney appears in court, and does not negate the ethical duties that arise from acting in a representative capacity.

Q: Does former Rule 1-400 govern CAS's advertising of its services to lawyers?

A: Per the opinion, no, lawyer-to-lawyer advertising falls outside former Rule 1-400 as the committee reasoned in Opinion 1981-61. Business and Professions Code sections 6157-6158.7 are read similarly given their consumer-protection purpose, but the committee cautioned that no court had ruled on their scope, and false or misleading lawyer-to-lawyer statements could potentially trigger civil and disciplinary consequences under sections 6158.4 and 6158.7, and discipline under section 6106 (moral turpitude) is available regardless.

Background and rules framework

The opinion interprets former California Rules 1-400 (advertising and solicitation), 2-200 (fee division), 3-110 (competence), 3-310 (avoidance of conflicts), and 3-500 (duty to inform clients of significant developments). It also applies Business and Professions Code sections 6068(e) (duty of confidentiality), 6068(m) (duty to keep clients informed), 6147 (contingency fee contracts), and 6148 (written fee agreements). Functionally, the framework now corresponds, in current California numbering, to Rules 1.1, 1.4, 1.5, 1.6, 1.7, 1.9, 5.1, 5.3, and 7.1.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

Former California Rule 1-400
Former California Rule 2-200
Former California Rule 3-110
Former California Rule 3-310(E)
Former California Rule 3-500
Former California Rule 1-100(B)(4) (definition of "associate")

Statutes:

California Business and Professions Code sections 6068(e), 6068(m), 6106, 6147, 6148, 6157-6158.7

Cases:

Belli v. State Bar (1974) 10 Cal.3d 824, agency in attorney advertising
Crane v. State Bar (1981) 30 Cal.3d 117, duty of due care in retention
Gadda v. State Bar (1990) 50 Cal.3d 344, duty of due care
William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 1042, professional standards apply in all capacities
Streit v. Covington & Crowe (2000) 82 Cal.App.4th 441, single-appearance attorney-client relationship
In re Brindle (1979) 91 Cal.App.3d 660, presumption of attorney-client relationship from court appearance
Responsible Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, reasonable client expectation
Fox v. Pollack (1986) 181 Cal.App.3d 954, no attorney-client relationship absent reasonable inducement
People v. Singh (1932) 123 Cal.App. 365, broad scope of section 6068(e)
People v. Gionis (1995) 9 Cal.4th 1196, advance disclaimer
Chambers v. Kay (2002) 29 Cal.4th 142, fee division
Allen v. Academic Games League of America, Inc. (C.D. Cal. 1993) 831 F.Supp. 785, Rule 3-310(E) applied without lawyer-client relationship
In re Wright (C.D. Cal. Bankr. 2003) 290 B.R. 145, fee recovery requires court disclosure and client consent

Other opinions cited:

California State Bar Formal Opinion 2003-161: confidentiality in non-office consultations and disclaimer framework
California State Bar Formal Opinion 1994-138: outside lawyer disclosure and three-part fee-division test
California State Bar Formal Opinion 1997-150: vendor disclosure and confidentiality
California State Bar Formal Opinion 1993-133: scope of "confidential information"
California State Bar Formal Opinion 1981-61: lawyer-to-lawyer advertising
California State Bar Formal Opinion 1981-63: ethical duties absent attorney-client relationship
California State Bar Formal Opinion 1995-143: distinction between communications and solicitations
L.A. County Bar Association Formal Opinions 267, 374, 386, 423, 457, 467, 470, 473
District of Columbia Bar Legal Ethics Committee Opinion 284: temporary lawyer disclosure factors
Utah State Bar Ethics Advisory Opinion 96-12
Kansas Ethics Opinion 93-08

Source

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. 2004-165

ISSUE: 1. What are the ethical responsibilities of a member of the California State Bar who uses outside contract lawyers to make appearances on behalf of the member's clients?

What are the ethical responsibilities of the outside contract lawyer who makes the appearances?

DIGEST: 1. To comply with his or her ethical responsibilities, a member of the California State Bar who uses an outside contract lawyer to make appearances on behalf of the member's client must disclose to his client the fact of the arrangement between the member and the outside lawyer when the use of the outside lawyer constitutes a significant development in the matter. Whether the use of the outside lawyer constitutes a significant development will depend upon the circumstances in each situation. If, at the outset of the engagement, the member anticipates using outside lawyers to make appearances on behalf of the member's client, the member should address the issue in the written fee agreement with the client. If the member charges the outside lawyer's fees and costs to the client as a disbursement, the member must state the client's obligations for those charges in the written fee agreement. In addition, the member remains responsible to the client, which includes responsibility for competently supervising the outside lawyer. Finally, the member must comply with the ethical rules concerning competence, confidentiality, advertising, and conflicts of interest that apply to his or her role in any such arrangement.

Like the member who uses an outside contract lawyer to make appearances, the outside contract lawyer must comply with the ethical rules concerning competence, confidentiality, advertising, and conflicts of interest that apply to his or her role in any such arrangement.

AUTHORITIES INTERPRETED: Rules 1-400, 2-200, 3-110, 3-310, and 3-500 of the Rules of Professional Conduct of the State Bar of California. Business and Professions Code sections 6068(e), 6068(m), 6147, and 6148.

STATEMENT OF FACTS

Lawyer represents a number of clients in various litigation matters. Court Appearance Service ("CAS") is a service, operated by lawyers, which provides independent attorneys to law firms and sole practitioners on a contract basis. Lawyer has decided to use a CAS attorney to appear for Lawyer's clients in law and motion hearings, status conferences, depositions, and other matters. None of CAS's attorneys are members of Lawyer's law firm. CAS charges an hourly fee for the services of its attorneys who make such appearances.

CAS advertises its services with advertisements in newspapers and magazines directed to the legal profession, with flyers handed out at bar association meetings, with telephone directory advertisements, and by other means. The advertisements contain truthful information about the state-wide, 24-hour availability of the firm, the basis on which it charges for its services, its telephone number, and its e-mail address. The advertisements state that CAS attorneys make all types of court appearances, including motions and trials, and also will attend depositions and arbitrations. The advertisements also disclaim the existence of any attorney-client relationship between CAS or the lawyers whose services it provides, and the clients of the lawyers and law firms that hire CAS to provide legal services for those clients.

DISCUSSION

A. Lawyer's Ethical Duties

Lawyer's Duty of Competence

Rule 3-110(A) states: "A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence." Lawyer's satisfaction of this duty will be measured not just by his own performance, but also by the adequacy of Lawyer's supervision of the CAS lawyer; Lawyer's decision to delegate a task does not delegate his own duty of competent representation. As the discussion to rule 3-110 points out: "The duties set forth in rule 3-110 include the duty to supervise the work of subordinate attorney and non-attorney employees or agents." Thus, even if Lawyer is not making the appearance, he still has a duty to supervise competently the CAS lawyer who is appearing in his stead.

What constitutes competence depends upon the facts. For example, Lawyer may retain CAS on short notice. Indeed, CAS advertises its ability to cover "emergencies" where the hiring lawyer learns at the last moment that he or she cannot make a particular hearing or appearance. This could lead to situations in which the CAS lawyer making the appearance does not have the time to learn what he or she may need to know to perform competently for that appearance. Similar concerns may arise if, in a hearing, the court addresses issues or matters which the CAS lawyer is not prepared to handle, or an outside lawyer is unable to perform other legal services competently.

At a minimum, Lawyer must adequately prepare the CAS lawyer for the appearance and the CAS lawyer must be competent to handle the appearance. In those situations where the CAS lawyer cannot be adequately prepared to represent the client in the appearance, Lawyer may not send the CAS lawyer to the appearance in his place, or permit him to provide other legal services.

The Committee recognizes that there may be some exigent circumstances in which Lawyer will have no choice other than to have another lawyer appear in his place. If, in these circumstances, the CAS lawyer making the appearance cannot be adequately prepared to represent the client competently on all the matters before the court, Lawyer should directly, or through the CAS lawyer, attempt to continue the matter or limit the scope of the appearance to matters which the CAS lawyer can be adequately prepared to handle competently.

Lawyer's Duty To Inform His Clients

Rule 3-500 states: "A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed." Business and Professions Code section 6068(m) states that an attorney has a duty "[t]o 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." These authorities require Lawyer to inform his client that he has hired an outside lawyer or firm to make appearances on the client's behalf if the use of the outside lawyer or firm is a significant development.

As the Committee stated in California State Bar Formal Opn. No. 1994-138:

"Depending on the circumstances, rule 3-500 and Business and Professions Code section 6068(m) will generally require the law office to inform the client that an outside lawyer is involved in the client's representation if the outside lawyer's involvement is a significant development. In general, a client is entitled to know who or what entity is handling that client's representation. However, whether use of an outside lawyer constitutes a significant development for purposes of rule 3-500 and Business and Professions Code section 6068(m) depends on the circumstances of the particular case. Relevant factors, any one of which may be sufficient to require disclosure, include the following: (i) whether responsibility for overseeing the client's matter is being changed; (ii) whether the new attorney will be performing a significant portion or aspect of the work; or (iii) whether staffing of the matter has been changed from what was specifically represented to or agreed with the client. (See L.A. Cty. Bar Assn. Formal Opn. No. 473.) The listed factors are not intended to be exhaustive, but are identified to provide guidance."

In addition to the foregoing factors, the Committee believes that the client's reasonable expectation under the circumstances also is a consideration in determining whether the presence of a CAS lawyer in place of Lawyer is a significant development. If the client reasonably expects Lawyer to be present at the appearance, the use of a CAS lawyer in his place could be a significant development that would trigger the duty to inform the client.

Scope and Timing of Disclosure

When a duty to inform the client arises, whenever possible Lawyer should do so before a CAS lawyer makes an appearance on behalf of Lawyer's client. When making this disclosure, the Lawyer should provide enough information to afford the client the opportunity to consider whether the client is comfortable with the proposed staffing arrangement, or whether the client would prefer an alternative arrangement.

In addition, if, at the outset of the engagement, Lawyer anticipates using CAS lawyers to appear in the client's matter, Lawyer should address the issue in the written fee agreement with the client. (See L.A. Cty. Bar Assn. Formal Opn. No. 473 ["[T]he attorney bears the responsibility to be reasonably aware of the client's expectations regarding counsel working on client's matter because the responsibility can be readily discharged by the attorney through a standard written retainer agreement or disclosure before or during the course of the representation."]; compare Cal. State Bar Formal Opn. No. 1994-138 at fn. 8 ["It would be prudent for the law firm to include the disclosure to the client in the attorney's initial retainer letter or make that disclosure as soon thereafter as the decision to hire is made."].) If Lawyer charges CAS's fees and costs to the client as a disbursement, Business and Professions Code sections 6147 and 6148 require Lawyer to state the client's obligations for those charges in the written fee agreement, if contemplated at the time of the initial fee agreement, to the same extent as other costs charged to the client.

The Fee Arrangement between Lawyer and CAS

Rule 2-200 requires Lawyer to meet certain requirements when dividing a fee with another lawyer who is not his partner, associate, or co-shareholder. Rule 1-100(B)(4) defines an "associate" as "an employee or fellow employee who is employed as a lawyer." To the extent that CAS or the CAS lawyer is Lawyer's employee when making the appearance, the rule's requirements will not apply. If CAS or the CAS lawyer making the appearance is not Lawyer's employee, Lawyer must comply with rule 2-200 if the compensation paid constitutes a division of the fee.

Whether CAS or its lawyers are employees of Lawyer when appearing on his behalf is a legal question which is beyond the Committee's purview. In this opinion, the Committee assumes that CAS and its lawyers are not Lawyer's employees. The question then becomes whether the hourly fee paid to CAS or the CAS lawyer is a division of Lawyer's fee.

In California State Bar Formal Opn. No. 1994-138, the Committee articulated the following three-part test for determining whether a particular arrangement constitutes a division of fees under rule 2-200: (1) The amount paid to the outside lawyer is compensation for the work performed and is paid whether or not the law office is paid by the client; (2) the amount paid by the attorney to the outside lawyer is neither negotiated nor based on fees which have been paid to the attorney by the client; and (3) the outside lawyer has no expectation of receiving a percentage fee. If the payment meets all three criteria, no regulated division of fees has occurred. (See also, Chambers v. Kay (2002) 29 Cal.4th 142 [126 Cal.Rptr.2d 536].)

Under the facts presented, the Committee believes that a division of fees does not occur if Lawyer pays CAS or the CAS lawyer an hourly rate which meets the foregoing criteria. Billing CAS's fee as a cost, or as a separate identified entry, on Lawyer's bill to his client, also would not constitute a regulated division of fees. In addition, there would be no division of fees if CAS or the CAS lawyer bills and is paid by the client directly.

Lawyer's Duty To Protect Client Confidential Information

Business and Professions Code section 6068(e) states: "It is the duty of an attorney [t]o . . . maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." The scope of the protection of client confidential information under Section 6068(e) has been liberally applied. (See People v. Singh (1932) 123 Cal.App. 365 [11 P.2d 73].) The duty to preserve a client's confidential information is broader than the protection afforded by the lawyer-client privilege. Confidential information for purposes of Section 6068(e) includes any information gained in the engagement which the client does not want disclosed or the disclosure of which is likely to be embarrassing or detrimental to the client. (Cal. State Bar Formal Opn. No. 1993-133.) The duty has been applied even when the facts are already part of the public record or where there are other sources of information. (See L.A. Cty. Bar Assn. Formal Opn. Nos. 267 & 386.)

Competent representation of Lawyer's clients at the appearance may require Lawyer to reveal, and identify as confidential, his clients' confidential information to the CAS lawyer handling the appearance. While the duty to preserve a client's confidential information is broad in its scope, it nevertheless permits a lawyer to provide confidential information to members of a lawyer's staff who are involved in the client's representation when made to further the client's interests in a particular matter. (See, e.g., L.A. Cty. Bar Assn. Formal Opn. Nos. 374 & 423 [lawyers may use outside contractor data processors for client billings and the like so long as contractors informed of and agree to keep client information confidential; occasionally information may be so sensitive that it cannot be disclosed to any outside agency, and lawyer must make that determination prior to any disclosure].)

The Committee believes that similar kinds of disclosures may be made to a lawyer retained to appear in a client's matter, provided that precautions are taken to assure that the information imparted to the appearing lawyer is held in confidence.

Depending on the structure of CAS and the nature of its internal working arrangements, the attorney supplied by CAS inadvertently might disclose client secrets to CAS or to other CAS attorneys. The CAS attorney should take steps reasonably designed to avoid this. See California State Bar Formal Opn. No. 1997-150.

B. CAS Lawyer's Duties

CAS Lawyer's Ethical Duties to Lawyer's Client

CAS's flyers and other advertising material disclaim any attorney-client relationship between CAS or its employees, and the clients of lawyers such as Lawyer. This disclaimer, however, does not by itself prevent the existence of an attorney-client relationship or the CAS attorney's assumption of ethical duties to Lawyer's client. Indeed, the facts presented here support finding an attorney-client relationship would exist between Lawyer's client and a CAS lawyer.

In general, except where a court appoints a lawyer to represent a client, a lawyer-client relationship arises by virtue of an express or implied contract. (E.g., Cal. State Bar Formal Opn. No. 2003-161.) In Responsible Citizens et al., v. Superior Court (1993) 16 Cal.App.4th 1717, 1733 [20 Cal.Rptr.2d 756], the court suggested that "one of the most important facts involved in finding an attorney-client relationship is 'the expectation of the client based on how the situation appears to a reasonable person in the client's position.'" (Id. at p. 1734.) See, Streit v. Covington & Crowe (2000), 82 Cal.App.4th 441 [98 Cal.Rptr.2d 193] [an attorney-client relationship is formed by an attorney making a single appearance at a court hearing at the request and in the place of the attorney of record, whether with or without compensation] and In re Brindle (1979) 91 Cal.App.3d 660, 671 [154 Cal.Rptr. 563, 572] [making a court appearance on a party's behalf creates a strong presumption that an attorney-client relationship has been formed]. While the existence of a lawyer-client relationship is a question of law (Responsible Citizens, 16 Cal.App.4th at 1733), in the Committee's opinion the appearance by a CAS attorney in a representational capacity on behalf of lawyer's client constitutes such a relationship for purposes of analyzing his or her ethical duties. By making an appearance for Lawyer's client, the CAS attorney steps into Lawyer's shoes to provide legal services to Lawyer's client, and in doing so, the CAS attorney undertakes the ethical duties that arise from an attorney-client relationship.

Moreover, regardless of whether the specific legal services provided by the CAS lawyer establishes an attorney-client relationship, the CAS disclaimer would not allow an attorney to avoid those ethical duties that can arise in the absence of an attorney-client relationship. This Committee long has recognized that the ethical duties will attach when a lawyer's relationship with a person or entity creates an expectation that the lawyer owes a duty of fidelity or when the lawyer has acquired confidential information in such a capacity. (Cal. State Bar Formal Opn. No. 1981-63; William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 1042, 1046-1047 [197 Cal.Rptr. 232] ["One who is licensed to practice as an attorney in this state must conform to the professional standards in whatever capacity he may be acting in a particular matter."].)

Among the ethical duties of the CAS lawyer, whether or not an attorney-client relationship is found to exist, are the duties to comply with the law and rules governing conflicts of interest. These conflicts rules include rule 3-310(E), which states: "A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment." In Allen v. Academic Games League of America, Inc. (C.D. Cal. 1993) 831 F.Supp. 785, the court applied rule 3-310(E) even in the absence of a lawyer-client relationship. The court reasoned that the policies underlying the California Rules of Conduct – "to protect the public and promote respect and confidence in the legal professional" – were present, and allow a lawyer to avoid disqualification merely because the lawyer had not been a lawyer when the disqualifying events arose would undermine public confidence in the profession. (Id. at 788-789.) Accordingly, the court disqualified both the lawyer and his firm.

This Committee applied a similar rationale in California State Bar Formal Opn. No. 1981-63 in concluding that a City Council member's law firm could not represent tort litigants against the City even if the City consented. Here, even if it were held that the CAS lawyer did not have an attorney-client relationship with Lawyer's client, the policies underlying the California Rules of Conduct would allow application of Rule 3-310(E) to a CAS lawyer who obtains confidential information regarding Lawyer's client in connection with providing services for that client. Rule 3-310(E) would preclude the CAS lawyer, without first obtaining that client's consent, from accepting the representation of a new client in matter in which the confidential information could be used or disclosed for the benefit of the new client against the wishes or interest of Lawyer's client. (See also Cal. State Bar Formal Opn. No. 2003-161, Part III.)

The Committee concluded that the reasoning of Allen v. Academic Games League of America, Inc., supra, 831 F.Supp. 785, and of California State Bar Formal Opn. No. 1981-63 apply equally to a CAS attorney who makes an appearance on behalf of Lawyer's client. Whether or not the CAS attorney is found to have formed an attorney-client relationship, he owes other ethical duties to Lawyer's client, including the duty to comply with conflict of interest rules, and the duties to maintain the confidence and to preserve the secrets of Lawyer's client.

CAS's Advertising and Soliciting For Work on Behalf of Its Lawyers

As noted above, in its advertising CAS disclaims any attorney-client relationship with Lawyer's clients, which suggests that Lawyer will be its only "client." The Committee has concluded, however, that by appearing as a lawyer on behalf of Lawyer's client, CAS lawyers assume the ethical duties of a lawyer to Lawyer's clients. To the extent that CAS's promotional materials suggest that such a relationship does not exist, they mislead attorney-recipients of the materials regarding the nature and implications of the service CAS is providing. This raises the issue of whether CAS's advertising, which is directed only to lawyers, violates any of the ethical duties of CAS lawyers.

California has both a rule, Rule 1-400, and a statute, Business and Professions Code sections 6157-6158.7, that regulate lawyer advertising. Business and Professions Code section 6106, which imposes discipline for acts involving moral turpitude, dishonesty or corruption, is also relevant to this inquiry.

Rule 1-400 (Advertising and Solicitation) states in relevant part:

"(A) For purposes of this rule, 'communication' means any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client, including but not limited to the following:

(2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers; or

(3) Any advertisement (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof;

(D) A communication or a solicitation (as defined herein) shall not:

(1) Contain any untrue statement; or

(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public; or

(3) Omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public . . ."

In its promotional materials CAS advertises its lawyer's availability to make various types of appearances for a fee. Such statements are "communications" subject to rule 1-400 if they are "directed to any former, current, or prospective client." Further, rule 1-400 is explicit that its coverage includes not just communications made by a lawyer, but also communications made on behalf of the lawyer, such as by CAS. This inclusion within the ambit of rule 1-400 of communications made on behalf of a lawyer is based on agency concepts (see Belli v. State Bar (1974) 10 Cal.3d 824, 837 and 840 [112 Cal.Rptr. 527]).

The Committee previously opined in California State Bar Formal Opn. No. 1981-61, however, that lawyer-to-lawyer communications do not come within the scope of the predecessor to rule 1-400 if the communications seek professional employment through the assistance or recommendations of the recipient attorney, or even if the communication seeks professional employment by the recipient attorney. The Committee reasoned that the predecessor of rule 1-400 is intended to prevent fraud, undue influence, and other abuses to which lay persons might be subject. Consequently, the rule should not apply to lawyer-to-lawyer communications because lawyers are unlikely to be affected by such vexatious conduct. Thus, to the extent the CAS advertising is directed to lawyers, it is not governed by rule 1-400.

This, however, does not end the inquiry. Since the Committee's issuance of opinion no. 1981-61, the legislature in 1993 enacted Business and Professions Code sections 6157-6157.4, which overlap rule 1-400 in also prohibiting false, misleading, and deceptive advertisements. Then in 1994 the legislature amended portions of sections 6157-6157.4 and enlarged their scope with the addition of new sections 6158-6158.7, which deal with advertising by electronic media. These sections, however, do not provide a definitive answer to whether they encompass CAS's advertising to lawyers.

On the one hand, sections 6157-6158.7, unlike rule 1-400, are not by their express language limited to communications to a "former, present, or prospective client." Thus, they arguably would apply to any false, misleading, or deceptive advertisement directed to a lawyer by CAS on behalf of CAS lawyers.

On the other hand, a review of sections 6157-6158.7 suggests that, like rule 1-400, it is intended to deal only with advertising to former, present, or prospective clients despite the absence of that limiting language in those sections. As the Committee reasoned in opinion no. 1981-61, the purpose of restrictions on lawyer advertising is to protect the public, and not to protect other lawyers who can be presumed able to protect themselves. This conclusion is reinforced by the legislative findings that accompanied the 1994 amendments and expansion of those sections. The legislature found, among other things, that: "(d) Members of the public may be ill-informed or unaware of their legal rights which if not timely exercised, may be lost, (e) The public has a need for accurate and truthful information about the availability of legal counsel, the nature of the services lawyers offer, and the prices lawyers charge for services, including routine and standardized legal services." (Sec. 1 of Stats.1994, c. 711 (A.B.3659) (emphasis added)). Given this legislative concern with the truthfulness of information provided to the public, it is possible that CAS advertisements directed to lawyers do not come within the scope of sections 6157-6158.7. Moreover, even if the CAS advertisements could be viewed as being directed to Lawyer's client, Lawyer, who makes the hiring decision, would act as a buffer and filter between CAS and the client to protect against the fraud, undue influence, and other potential abuses.

In light of the foregoing considerations, it is the Committee's opinion that sections 6157-6158.7, like rule 1-400, do not apply to lawyer-to-lawyer advertising. Nevertheless, because no court has interpreted the regulatory scope of sections 6157-6158.7, and, given the absence of rule 1-400's limiting language, lawyers should be aware that sections 6157-6158.7 might be held to apply to the CAS advertisements directed to lawyers. Accordingly, any false, misleading, or deceptive statement, such as CAS's disclaimer of any attorney-client relationship between it or CAS lawyers and Lawyer's clients, might potentially subject CAS lawyers to the civil and disciplinary consequences set out in sections 6158.4 and 6158.7.

CONCLUSION

Contract attorney services, and individual lawyers providing contract legal services to lawyers, may provide cost-effective alternatives to consumers of legal services. In using these services, those lawyers hiring the contract attorneys must comply with the ethical rules concerning the disclosure to the client of significant developments in the representation. Both those lawyers doing the hiring and those lawyers who are hired must comply with the ethical rules concerning competence, confidentiality, advertising, and conflicts of interest that apply to their respective roles in any such arrangement.

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 responsibility, or any member of the State Bar.