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'One size fits all' does not apply to your clients

Diane Karpman

By Diane Karpman

Any shopper worth her credit cards knows "one size fits all" is hyperbole that is nothing more than a myth. The phrase really means individual needs are not considered, and the garment doesn't fit anyone.

Our State Bar Court recently (once again) adopted the "one size" theory, reaffirming that an attorney's ethical duties do not vary according to the area of practice. Although entertainment lawyers are retained because they are "connected" (aka conflicted) in the "industry," for once and for all, they are not exempt from obtaining written conflict consents in compliance with ethical obligations.

The court did indicate that other regulations can "measure" those duties. Therefore, the IRS and Patent Office can continue to regulate practitioners, and it would seem that the SEC can craft regulations complying with the Sarbanes-Oxley legislation.

If "one size" is the mantra for state ethical obligations, seemingly placing us in a homogenized straightjacket, some breathing room exists by way of classifying clients, since a clienthood "hierarchy" already exists. (Ted Schneyer, Searching for New "Particles" in the Law of Lawyering: Recent Developments in the Attribution of "Clienthood" (1996) 1 J. Inst. Legal Ethics 79.)

It may seem undemocratic, but sometimes it is merely the result of the happenstance of who showed up at the office first. In Flatt v. Superior Court of Sonoma County (1994) 9 Cal. 4th 275, after an "intake" conference, a conflict check was run on the new client. The firm discovered that it already represented the target of the proposed litigation. They were prohibited by the duty of loyalty to the original client from informing Client 2 that the statute of limitations was running on its claim. The duty of loyalty to Client 1 trumped the duty owed to Client 2, a second class client. (See Justice Kennard's eloquent dissent).

There is a host of other circumstances where clients, putative clients or client wannabes do not receive the full panoply of fiduciary duties. In entity representation, the true client is the entity, but the individual members may become "clients" depending on intended or unintended expectations created by the lawyer. An individual member of a 2,000-person class action is not a true client of lead counsel, but there are duties owed. A prospective client does not obtain the full measure of fiduciary duties owed to a full-blown client, but does receive a degree of confidentiality. Insurance defense work, where duties are owed to the insured and carriers, is another example. (Oops . . . see brand new Supreme Court modification of Rule 3-310 (C), carving out a special status where an insurer is solely an indemnity provider.)

To visualize this, think of a time/ space continuum. At one extreme are individual criminal clients. At the other side of the universe are class members, putative clients or even non-client third parties seeking some of the attributes of clienthood caused by expectations created by lawyers.

It may offend your sense of justice, but in Orwellian terms, not all animals are created equally. There simply isn't one size. Elephants and mice have different measurements, and not all clients are created equal.

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