California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JANUARY 2000
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - January 2000
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News Briefs
Former Unruh aide appointed to serve on State Bar board
Ardaiz, O'Leary named jurists of the year for '99
Judicial Administration fellowships
Public law section online library
Board meets Feb. 4-5
51.2 percent pass July '99 bar exam
Board hires search firm for new bar chief
Litigation section offers MCLE week in legal London
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Trials Digest
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From the President - Reciprocity reform: The future is now
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Opinion
For most Americans, our system is a failure
Ethics 2000: On target, or lost in space
Letters to the Editor
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Public Comment
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MCLE Self-Study
Of Counsel: Avoiding Conflicts
Self-Assessment Test
MCLE Calendar of Events
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Important Information About Your 2000 Membership Fee
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You Need to Know
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Appointments
Apply to serve on a bar committee
Bar seeks applicants for ABA delegates
Judge evaluation positions open
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Discipline
Ethics Byte - Warding off the foul tort in a new year
Bankruptcy attorney disbarred after abandoning clients
Attorney Discipline

MCLE SELF-STUDY

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Self-Assessment Test
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Answer the following questions after reading the MCLE article on conflicts of interest. Use the answer form provided to send the test, along with a $20 processing fee, to the State Bar. Please allow at least eight weeks for MCLE certificates to reach you in the mail.

1. If the American Bar Associa-tion proposal on multidisciplinary practice is adopted, lawyers will be able to have nonlawyers as their partners, even if some activities of the partnership constitute the practice of law.

2. If the American Bar Associa-tion proposal on multidisciplinary practice is adopted, lawyers will be able to share the profits of law firms with nonlawyers.

3. In order to be successful in disqualifying an attorney that possesses material confidential information adverse to a party, the party must prove that he or she had a fee agreement with the lawyer.

4. The duty of confidentiality does not extend to preliminary consultations by a prospective client with a view to retention of that lawyer, when employment does not result.

5. For the purposes of conflicts of interest analysis, an attorney is deemed to represent the client when the attorney knowingly obtains material confidential information from the client and renders legal advice or services as a result.

6. Confidential information acquired by an “of counsel” cannot be imputed to the firm with which the “of counsel” is affiliated.

7. The law firm which lists an attorney as ‘of counsel” on its letterhead or other listing is making an affirmative representation to its clients that the services of that attorney are available to the clients of the firm.

8. An “of counsel” relationship with a law firm is  not that of partner or associate, or law corporation shareholder or officer.

9. An “of counsel” relationship with a law firm is close, personal, continuous and regular.

10. The close, personal, continuous and regular relationship between a law firm and an attorney affiliated with it as “of counsel” contains many of the same elements that justify vicarious disqualification applied to partners, associates and members.

11. There are no circumstances wherein a law firm and its affiliated “of counsel” must be considered a single de facto firm.

12. Rule 3-310(E), California Rules of Conduct, prohibits attorneys from accepting, without the client’s informed consent, employment adverse to the client, where, by reason of the representation of the client, the attorney has obtained confidential information material to the employment.  

13. Lawyers’ representations that they had not, and would not in the future, discuss a conflict case with other members of the firm were enough to establish a formal screening procedure.

14. In order to be a defense to disqualification in California, a law firm with a conflict based upon the possession of confidential information could show that it instituted formal screening procedures at any time after learning of the conflict.

15. The substantial relationship test requires proof of three elements: (1) similarity between the two factual situations, (2) similarity between the legal questions posed, and (3) the nature and extent of the attorney’s involvement with the cases.

16. The representation of a subsidiary did not necessarily create ethical duties to its parent corporation, precluding representation of adverse interests against the parent assuming that one was not the alter ego of the other.

17. A lawyer owes no duty to maintain a third party’s information confidential even though acquired during the representation of an underwriter, absent the third party’s reasonable expectation that the underwriter has a duty of confidentiality. 

18. The violation of a rule of professional conduct automatically precludes an attorney from obtaining fees incurred in the representation.

19. If an attorney engaged in a “serious” violation of the attorney’s responsibilities in a matter, the attorney may not be eligible to recover for the work done on that matter.

20. Unity of interests between a parent and subsidiary corporation  can be grounded upon shared legal departments, the subsidiary’s lack of independent contractual authority, integrated operations and management personnel, and overlapping functions and personnel on the same project.

CERTIFICATION

This activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour, of which 1 hour will apply to legal ethics.

The State Bar of California certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.