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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When California lawyers share office space, staff, or facilities without forming a law firm, what must they do to comply with their ethics duties regarding the public and client confidentiality?
Per California Formal Opinion 1997-150, office-sharing or staff-sharing attorneys must take reasonable steps under the circumstances to ensure clients and potential clients are not deceived, misled, o…
May a California lawyer pay a non-expert witness for time spent preparing for a deposition or trial, even when preparation does not cause a loss of income?
Per California Formal Opinion 1997-149, a lawyer may pay a non-expert witness for time spent preparing for a deposition or trial, but must comply with former Rule 5-310(B). Compensation for preparatio…
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 works on more than one client's matter during the same time period, may the lawyer bill each client a full hourly rate (or a multiple of it) for that time?
Per California Formal Opinion 1996-147, a lawyer may not bill more than one client at full hourly rates for the same time period, or bill a single client a multiple of that rate for shared time, unles…
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 may a California lawyer contact an opposing party directly, and is the lawyer required to ask whether the party is represented by counsel before reaching out?
Per California Formal Opinion 1996-145, a lawyer with actual or imputed knowledge that an opposing party is represented may not communicate with the party about the subject of the representation witho…
Can a California lawyer send an investigator to interview accident victims and witnesses when the lawyer does not yet represent any client in the matter?
Per California Formal Opinion 1995-144, clientless investigations risk violating former Rule 1-400(C). If the investigator, with the lawyer's express or implicit authorization, conveys any message abo…
Can a California lawyer hire a 'medical liaison' to give a promotional presentation to physicians who may then refer patients, and how does Rule 1-400 apply across the chain from lawyer to liaison to physician to patient?
Per California Formal Opinion 1995-143, the liaison's promotional presentation is a 'communication' subject to former Rule 1-400. The lawyer may be disciplined for untrue statements or other violation…
Can a California criminal defense lawyer send targeted direct-mail letters ('jail mail') to recently arrested people based on police booking records, and what rules govern the letter's content, transmission, and the use of a non-attorney service to compile the list?
Per California Formal Opinion 1995-142, truthful and non-deceptive direct mail marketing of legal services is constitutionally permitted under Shapero, but targeted mailings to arrestees are subject t…
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 does a California lawyer's compensation of a non-employee outside lawyer constitute a 'division of fees' triggering former Rule 2-200's client-consent requirement, and when must the client be told about the outside lawyer's involvement?
Per California Formal Opinion 1994-138, former Rule 2-200(A) applies when the outside lawyer is paid a portion of the fee paid by the client. It does not apply where (1) the amount paid to the outside…
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…
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…
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 Rule 2-100, may a lawyer counsel her client about the strategy and content of a direct communication the client wishes to have with the opposing party, who is represented by counsel?
Per California Formal Opinion 1993-131, former Rule 2-100 prohibits an attorney from communicating directly or indirectly on the merits with a represented opposing party without that party's counsel's…
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…
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 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 lawyer for a plaintiff suing a corporation talk ex parte to a dissident director of that corporation, when the director has separate counsel who consents but the corporation's lawyer does not?
Per California Formal Opinion 1991-125, no. Former Rule 2-100 treats a director as a 'party' for ex-parte communication purposes; consent must come from the corporation's counsel, not the director's s…
Under former California Rule 5-100, may a lawyer's settlement demand letter say that 'all available legal remedies will be pursued' if a prompt settlement is not reached, when the dispute could also support criminal or administrative action?
Per California Formal Opinion 1991-124, yes. The committee concluded that 'all available legal remedies will be pursued' was ambiguous and was not, by itself, the overt threat to present criminal, adm…
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…
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…
If a California lawyer is also serving as the bankruptcy trustee, may the lawyer-trustee speak directly with the debtor or creditors who are represented by counsel, without those parties' counsel's consent?
Per California Formal Opinion 1989-110, yes. Because the lawyer-trustee is acting as a party (the representative of the bankruptcy estate), former Rule 2-100 did not bar the trustee from communicating…
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…
May a California prosecutor offer to dismiss a colorable criminal case if the defendant stipulates there was probable cause for the arrest, thereby releasing the police agency from civil liability?
Per California Formal Opinion 1989-106, no. The committee opined that a prosecutor's offer to dismiss a colorable prosecution in exchange for a civil-liability release is a veiled threat to continue t…
May a California attorney telephone-solicit a personal injury victim about a specific claim, or solicit by targeted mail, and can the client later waive 'improper solicitation' in the retainer?
Per California Formal Opinion 1988-105, telephone solicitation of a specific person about a specific case for pecuniary gain is improper; targeted-mail solicitation is permitted if the communication i…
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…
Under former California rules, may a law firm delegate Workers' Compensation Appeals Board appearances, petitions, and motions to a paralegal employee with the client's informed consent and proper disclosure?
Per California Formal Opinion 1988-103, yes, provided the paralegal is adequately supervised, the client has been informed of the consequences of representation by a non-lawyer and has consented, and …
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…
May a California attorney communicate with a juror who has been removed from an empaneled jury for misconduct before the rest of the jury is discharged?
Per California Formal Opinion 1988-100, no. The committee opined that under former Rule 7-106(B), a discharged juror remained a 'juror' for purposes of the rule until the entire empaneled jury was dis…
May a California attorney give a non-lawyer signatory power over the client trust account?
Per California Formal Opinion 1988-97, yes. The committee opined that former Rule 8-101 did not bar a lawyer from giving a non-lawyer the ministerial job of signing checks drawn on the client trust ac…
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…
May trial counsel in California discuss evidence that was excluded at trial with jurors after the jury has been discharged?
Per California Formal Opinion 1987-95, former California Rule 7-106(D) did not bar discussion of excluded evidence with jurors after discharge of the jury, provided counsel did not intend to harass or…
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 solo practitioners who only share office space advertise under one firm name, and can a firm keep a departed partner's name?
The committee concluded that sole practitioners who merely share office space may not advertise under a joint firm name without each disclosing that he or she is a separate sole practitioner, and that…
If a client gives a lawyer stolen property, what can the lawyer reveal, and can the lawyer trade its return for the victim not prosecuting?
The committee concluded that a lawyer may not disclose the fact of a client's theft, which is a protected confidence, but if the lawyer takes possession of the stolen property the lawyer must reveal i…
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…
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…
Can a lawyer communicate ex parte with a workers' comp rehabilitation consultant who is running a conference?
The committee concluded that the rule barring ex parte communications with a judge or judicial officer (former Rule 7-108(B)) does not apply to a State Rehabilitation Bureau consultant, because the co…
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…
Is an administrative law judge a 'judge' for the ex parte communication rule, and can a lawyer contact the agency head?
The committee concluded that an administrative law judge is a 'judge' under former Rule 7-108(B), and that no lawyer should communicate ex parte with the agency head while the agency is deciding a con…
Can a lawyer threaten or file an EEOC discrimination charge that is a prerequisite to suing the employer?
The committee concluded that former Rule 7-104 does not bar a lawyer from filing or threatening an EEOC charge, because where the charge is a required prerequisite to a civil suit it is intrinsic to t…
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 lawyer let a client hire a medical-legal consulting firm on a contingent fee to supply expert testimony?
The committee concluded that a lawyer may work with such an arrangement only within strict limits: no contingent fee for a witness's testimony, no fee-splitting with a lay agency, no aiding the unauth…
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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.