REGULARS

Cases

Adams v. Aerojet General (2001) 86 Cal.App.4th 1324 [104 Cal.Rptr.2d 116]
An attorney who did not personally represent a former client while employed at his former firm was disqualified based on an imputed know-ledge theory. On appeal, the 3rd Appellate District reversed the disqualification order holding that a firm-changing attorney is not automatically disqualified, on the basis of imputed knowledge of confidential information, from a case involving a client of his former law firm.  In reaching this conclusion, the court reasoned that neither rule 3-310(E) nor the substantial relation test required automatic disqualification.

Sims v. Charness (2001) 86 Cal.App.4th 884 [103 Cal.Rptr.2d 619]
An attorney retained another attorney to try a case in return for a percentage of the attorney fees due under the client's retainer agreement with the first attorney. The question before the court was whether this arrangement was subject to the requirements (i.e., disclosure to and consent by client) rule 2-200 imposes on fee sharing arrangements between attorneys who are not partners, associates or shareholders in a firm. The court held that an outside lawyer, who works on a particular matter essentially on the same basis as an employee of the law office, is an associate for the purposes of rule 2-200.

Ethics Opinions

San Diego County Bar Association Formal Opinion No. 2001-1
Referring to rules 3-500 and 3-700(D), this opinion concludes that an attorney may not condition delivery of copies of significant documents in the client's files to the client on the client's prior payment of the copying expense regardless of a provision in the fee agreement to the contrary.

Proposed Ethics Opinions

The following proposed ethics opinions have been published for public comment at the State Bar website (found at www.calbar.org under "Bar Business/ Public Comment Proposals"). Publica-tion for public comment is not, and shall not be construed as, a recommendation or approval by the board of governors of the materials published.

Cal. Interim Opinion No. 98-0002
In the context of a civil action alleging police brutality, this proposed opinion interprets rule  2-100 (communication with a represented party) in addressing the question whether a non-party police officer witness is a "public officer."  The proposed opinion observes that a line police officer ordinarily would not be a "public officer" and an attorney, while representing a client in a matter, may not directly or indirectly communicate with a non-party police officer witness whom the attorney knows to be represented by counsel in the matter about the subject of the representation without the consent of that counsel.

Cal. Interim Opinion No. 95-0010
In the context of a public defender's office use of screening procedures, this proposed opinion provides that the creation of a separate "firm" within a public defender's office is sufficient to avoid certain conflicts arising from the representation of multiple criminal defendants, but only with adequate safeguards including maintaining the separateness of the two "firms."

Cal. Interim Opinion No. 95-0019
This proposed opinion addresses the question whether a communication from a person seeking advice or assistance from a lawyer is entitled to protection as attorney-client confidential information even if the lawyer accepted no engagement, gave no advice, and took no responsibility over any matter.

Rules & Statutes [enacted & pending]

AB 363 (Steinberg) Public Agency Attorney Accountability Act
If enacted, AB 363 would add §6068.5 to the Business and Professions Code authorizing an attorney employed by a state or federal government agency to report information that he or she reasonably believes is necessary to prevent a government official or agency from engaging in improper governmental activity or to rectify the consequences of that activity. This proposal is intended to clarify the application of statutory "whistleblower protection" to government attorneys.

SB 479 (Burton) Attorney Diversion and Assistance Act
If enacted, SB 479 would add Article 15 (commencing with §6230) to Chapter 4 of Division 3 of the Business and Professions Code. The bill would require the board of governors of the State Bar of California to establish and administer an attorney diversion and assistance program. The program would be required to provide services for the treatment and recovery of attorneys due to abuse of dangerous drugs or alcohol or mental or physical illness.