California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MARCH 2001
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ETHICS BYTE

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Time for lawyers to reconsider our ethical rules

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By DIANE KARPMAN
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Diane KarpmanLawyers 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, disso’s, 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 karpethics@aol.com.