Lawyers often assert that a particular ethics
rule cannot possibly apply in their area of the law, since they are involved in IP, M
& A, PI, dissos, or some other special area. Then there are
entertainment lawyers, who think they are completely separate and distinct from this
world. Wake up! Everybody is governed by the same rules. Insurance defense lawyers learned
this with Gulf Ins. Co. v. Berger Kahn (2000) 79 Cal. App. 4th 114. They, too,
need to obtain an informed written consent for their multiple or dual clients.
The Oh, no, not me lawyer myth is often engendered by the
foundational paradigm of our existing rules, or the one lawyer-one client
principle. Remember, our rules speak of a member and a client.
(See John Leubsdorf, 77 Cornell L. Rev. 825) This comforting 20th century idea is
justifiable when the case involves a single, threatened client and the trusted attorney.
How-ever, it becomes outlandish when compared to the realities of modern practice.
Therefore, when the client is a powerful government agency, a
mega-corporation, a public interest group, or a class of clients, many of the attributes
appropriately ascribed to a human client just do not work, or result in absurd paradoxical
results for entities.
Powerful entity clients can deprive their lawyer-employees of the
right to practice law in their specialized areas in subsequent engagements, by claiming
violation of the duty of confidentiality (Business and Professions Code §6068 (e)). If
the agency, union, legal services organization or corporation cannot claim attorney-client
privilege, are they being discriminated against or classified as second class citizens? In
one fell swoop, is the court invalidating the concept of a fully empowered entity and,
gosh, did we just throw out corporate law? If opposing counsel wants to
contact employees, does that include every postal worker, union member, or potential
member of a class of thousands? Are they all clients?
Obviously, the protective aura of the conventional theory of client-hood
does not extend that far, at least without ludicrous results. Should we stretch, push, or
reformat the rules to fit that particular group or strategic alliance? Do we need to
reconsider the rationale or interests the rules are seeking to protect? The rules were
designed to equalize the potential unfairness of the sophisticated lawyer taking advantage
of the uneducated, frightened client. That is no longer the reality of modern practice.
The amount of spandex in the rules is finite. You cannot push and
pull continually without creating a hideously disfigured end product that fails to
manifest fundamental fairness. We are lawyers, and would not permit unfairness for our
clients. How can we tolerate it for each other? It
is time we reconsidered our ethical rules, because pulling them out of shape beyond
recognition can create results that are unjust and fundamentally unfair.
Diane Karpman represents
attorneys before the State Bar, consults on ethics issues and is frequently retained as an
expert witness in legal malpractice, conflicts of interest, and other ethics matters. She
can be reached at 310/8887-3900 or at email@example.com.