| 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 www.calbar.org. |
