California Bar Journal
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Sanctions must be revealed
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When discovery sanctions are sought against an attorney and the client, the attorney is obligated to notify the client. Unless they disagree on the validity of the motion, the attorney must then represent the client before the court in opposing the sanctions motion.

According to an opinion of the State Bar's Standing Com-mittee on Professional Responsibility and Conduct (COPRAC), attorneys also must be cautious about agreements with a client concerning how they will allocate payment of any sanctions which may be imposed.

The opinion, number 1997-151, is limited to discovery sanctions. It covers a hypothetical situation in which plaintiff's counsel files a motion to compel further responses to plaintiff's written discovery and requests sanctions against the defendant and defendant's counsel.

At a minimum, the opinion says, an attorney must inform the client of the existence of the motion, the fact that sanctions are being sought and the amount. In addition, the attorney must provide any additional information the client needs to make an informed decision about the motion.

An ordinary motion for sanctions in connection with a discovery dispute does not create a conflict of interest that triggers a further disclosure obligation under Rule of Professional Conduct 3-310, the opinion states.

Although the lawyer in this case may be considered to have a financial interest in the representation because he or she stands to incur a financial burden if sanctions are ordered, the conflict of interest does not exist if the lawyer and client agree to take a common position.

The committee points out that the Rules of Professional Conduct are not intended to be used as a litigation tactic to drive a wedge between lawyer and client.

If the attorney and client are in agreement about the motion, the attorney must represent the client before the court.

If they agree to competing defenses, however, the client must be represented by a different lawyer. "A lawyer's advocacy of antagonistic opinions in a hearing or at trial is a conflict of interest that a lawyer and a client cannot agree to waive," COPRAC wrote.

The lawyer also must withdraw if he insists on exonerating himself from liability for the sanctions and the client does not agree with such an approach.

Even after withdrawing, the attorney must continue to maintain the client's confidential information unless the client contends the sanctions request is based on conduct for which the attorney is solely responsible and the attorney disputes that contention.

In anticipating the possibility of sanctions during the course of litigation, an attorney may enter into an agreement with a client on how they will allocate payment of sanctions.

In some circumstances, however, such an agreement may be unethical; for example, if sanctions are imposed against the attorney alone.

Although it may not be possible for a client to give fully informed consent to future sanctions when their nature and amount are unknown at the time of the original retainer, it may be possible to include in the retainer agreement sufficient disclosure to cover the most likely instances in which sanctions would be sought.

A full text of the opinion is at the publications link of the bar's web site at