|Myths are commonly held beliefs, fables or legends. Legal myths, which
are absolutely believed to be true among members of the profession, are unsupported by
existing law or cases.
One of those is the use of "cones of silence" or
ethical screens to permit a firm to engage in what would otherwise be a conflict of
interest (Rule 3-310). Everyone believes that such cones or walls are effective in
screening the otherwise tainted lawyer, and therefore allow the firm to initiate or
This is simply a fable or myth, unless the tainted lawyer is a former governmental
employee (e.g., prosecutor). Other states permit such screening but not California.
Another popular myth
is that once we leave our offices, we can remove our suit, ties or high heels and
suddenly, we are not lawyers anymore. We are transformed into just plain folks, helping
friends and family members with their cases (be careful), or investing in business
activities (review the requirements of Rule 3-300). Or perhaps within the parameters of
our practice, we discover ways of providing additional services to our clients (coupled
with savings), such as acting as lawyer/broker, lawyer/executor, lawyer/collection agent,
This mythology involves a claim often articulated defensively in legal malpractice or
breach of fiduciary duty cases, or in what were once known as disciplinary cases. This
fable is that when we engage in extra-legal activities, we are just plain folks. Somehow,
we think that once we put on our khakis and sneakers, we can just blend in and shed the
burden of fiduciary duties, oaths and rules that govern our profession.
Case law has consistently held that, where an attorney occupies a dual capacity,
performing, along with legal services, services that nonprofessionals might otherwise
perform, the services that he or she renders in that dual capacity all involve the
practice of law. The attorney must conform to the Rules of Professional Conduct in the
provision of these other services. Crawford v. State Bar (1960) 54 Cal.2d 659, 667-668.
Therefore, if you are acting as a real estate broker as a favor for a client; or a
baker in conjunction with your client's cookie business; or a drummer in your client's
band, you are governed by the Rules of Professional Conduct. Clients become confused when
the representational lines become blurred. They cannot tell when we are practicing law or
acting in another, nonlegal capacity. In these dual capacity cases, as in many other areas
of attorney-client relations, remember that it is the client's expectation that the courts
will find persuasive.
So protect yourself. Make certain that you eliminate and clearly dispel any inaccurate
or unrealistic client expectations, in writing, or the myth of attorney discipline may get
you if you don't watch out.
Diane Karpman of Los Angeles represents
attorneys at the State Bar and is an expert witness in legal malpractice, conflicts of
interest and partnership dissolutions.