Answering questions on ethics


The impending demise of the State Bar of California will require that each of us become adept at finding answers to issues involving professional responsibility and ethics. To accomplish that goal, understanding how we are regulated is important.

California lawyers are uniquely regulated by both the judiciary and the legislature. Primary regulatory authority of attorneys is vested in the judiciary, specifically, the Supreme Court. Brydonjack v. State Bar (1929) 208 Cal.439. The Supreme Court's other inherent powers include admission and discipline of the profession and the acceptance or rejection of Rules of Professional Conduct. Hustedt v. Workers' Comp. Appeals Board (1981) 30 Cal. 3d 329.

The legislature actively and concurrently regulates the legal profession, subject to the Supreme Court's authority to review. Legislative mandates or statutory expressions of regulation are contained in the Business & Professions Code §§6000 et seq., more appropriately and commonly called the State Bar Act. This regulation does not limit or diminish the Supreme Court's authority, pursuant to B&P §6100.

Both sets of regulations are contained in the "gray book," more formally known as Publication 250. Information about obtaining Pub 250 is available by calling 415/538-2174.

The significance of the publication's cover (gray) will not be lost upon seasoned practitioners, many of whom realize that literal compliance with each rule, every day, is a laudable goal but impossible to achieve. In many instances, the rules can be and are contradictory. For instance, rule 5-200 prohibits a lawyer from misleading a judge and mandates a high degree of candor to a tribunal. Reconciling this concept with an attorney's duty of maintaining client confidences and secrets, pursuant to B&P §6068(e), can place the lawyer between the proverbial rock and a hard place. Another example is the trial lawyer's constant need to temper zealous advocacy within the confines of the rules.

State and county bar association ethics committees wrestle with these issues and other highly problematic areas. After deliberation, opinions are crafted and published as guidance for some ethical minefields facing practitioners. (These are available in the State Bar's Compendium.) State Bar opinions are also available on the bar's home page (www.calbar.org), county bar web sites, and the ethics hotline. Often these opinions are cited by courts as authority for interpretation or application of a given rule to a particular fact pattern and are invaluable to a lawyer faced with a true life adventure story.

It is imperative that attorneys know where to find the answers to ethical questions. With the possible collapse of the State Bar, disgruntled clients will still seek to redress real or perceived wrongs in the already overburdened courts, both civil and criminal. Knowing where to find the answers will help you to avoid the explosion of legal malpractice claims, which is anticipated to mushroom.

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.