Ethics in Brief — More Than the Minimum: Raising the Bar from Compliance to Best Practices

By Valerie Silverman Massey

The California Rules of Professional Conduct (Rules) serve as the ethical backbone of legal practice. These Rules establish the minimum standards required to avoid disciplinary action, but they are not synonymous with best practice. The distinction between compliance and excellence is subtle yet critical — especially in a profession where reputation, trust, and client outcomes hinge on more than just rule-following. 

The Rules are designed to protect clients, promote confidence in the legal system, and maintain the integrity of the profession. The Rules outline essential duties such as maintaining client confidentiality, avoiding conflicts of interest, and ensuring competent representation. Best practices elevate these requirements to proactive communication, cultural competency, technological fluency, and a commitment to continuous learning.

The distinction between compliance and excellence becomes particularly important when examining specific ethical duties in practice. Nowhere is this more evident than in the areas of communication, loyalty, and client consent—core obligations that not only reflect the letter of the Rules but also the spirit of best practice. 

One of the most pivotal Rules in the attorney-client relationship is Rule 1.4, Communication with Clients. Rule 1.4 requires attorneys to “reasonably consult with the client about the means by which to accomplish the client’s objectives,” and to “keep the client reasonably informed about significant developments.” The Rule does not just protect a client against a lawyer’s silence or non-responsiveness, but also requires the attorney to afford the client the opportunity to make informed decisions about their case. 

“The concept of informed consent is a familiar one. It signifies that a person making an important decision does so on the basis of adequate knowledge of the facts and an awareness of the consequences of decision.” Sharp v. Next Entertainment, Inc. (2008) 163 Cal.App.4th 410, 430. The Rules define “informed consent” in Rule 1.0.1(e) as “the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably* foreseeable adverse consequences of the proposed course of conduct.” Consistent with best practices, the Courts have taken “informed consent” further to conclude that consent isn’t valid unless the client understands the facts, implications, and alternatives—especially in conflict or high-risk situations. Mere conveyance of information can be insufficient to satisfy the Rules. Informed consent is such a fundamental to the attorney client relationship that it is integral in many different Rules, i.e. fees for legal service (Rule 1.5), reveal confidential client information (Rule 1.6), conflicts of interest (Rule 1.7), business transactions with a client (Rule 1.8.1), and lawyer as a witness (Rule 3.7).

Best practices related to communication and informed consent is critical as it relates to conflicts of interest, Rules 1.7, 1.9, 1.10, and 1.11.  Courts have reiterated that informed consent is satisfied not by the attorney’s conveyance of information, but the clients acknowledgement of understanding.  “In order for there to be valid consent, clients must indicate that they “know of, understand and acknowledge the presence of a conflict of interest….” Sharp, supra, at 429.

While the Rules state the minimal requirements, the Courts have provided substantive context. There are considerations as to the details conveyed from attorney to client, the mechanism in which the information is conveyed, and the opportunity for meaningful engagement that are left to each attorney. This is where best practices are pivotal. Here are a few things to consider when engaging in best practices associated with client communications:

• Substantive information: Are you only conveying material facts or are you including implications, risk analysis, and alternatives? Is there context that should be provided to allow the client to understand the totality of the circumstances? Is your client capable of understanding the situation you are presenting?
• Mechanism: Is the communication verbal or in writing (not all instances in the Rules require a writing)? Is the writing a string of text messages or a singular clearly written and comprehensive document/email? Are verbal communications memorialized in a writing?
• Engagement: Is the communication self-executing? Does your communication provide the client an opportunity to discuss the information and implications? Have you made yourself available to the client for that discussion? Is this an instance where you “advise” the client that they may wish to seek separate legal counsel on this issue?

In short, the Rules define the ethical floor; best practices raise the ceiling. Most lawyers continue to raise the bar for conscientious lawyering and elevating the legal profession. Lawyers who embrace both the Rules and best practices are better equipped to serve their clients, protect their reputations, and elevate the profession.

 of loyalty. 

In the Matter of Kaplan, (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 509, Attorney Kaplan failed to: keep a client reasonably informed, respond to repeated inquiries, disclose important case developments. The client was left unaware of critical court decisions and deadlines, causing significant prejudice. The court held Attorney Kaplan violated Rule 1.4 (communication) and showed disregard for the duty of loyalty by essentially abandoning the client’s interests during ongoing litigation.

In 2002 the Court of Appeal noted that attorneys owe a fiduciary duty of loyalty and full disclosure to clients—including duty to communicate material information even if the attorney thinks it’s not important. Shaheed v. Ala. (2002) 96 Cal.App.4th 1199. This case reinforces that full transparency is required, not selective communication. While the Rule may contemplate communication broadly, best practices is not just about responding to calls—it’s about keeping clients actively in the loop.

The Rules require a lawyer to communicate with the client to obtain informed consent (in writing or otherwise, as specified by the Rules) in certain situations, i.e. The Rules define “informed consent” as “the lawyer has communicated and explained (i) the relevant circumstances and (ii) the material risks, including any actual and reasonably* foreseeable adverse consequences of the proposed course of conduct.” (Rule 1.0.1(e)). However, consistent with best practices, the Courts have taken “informed consent” further to conclude that consent isn’t valid unless the client understands the facts, implications, and alternatives—especially in conflict or high-risk situations. In re Matter of Respondent A (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 862. And, a lawyer is unable to obtain true informed consent when utilizing a boilerplate conflict waiver. Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59. Informed consent cannot be based on vague or general language. Again the Court, emphasizing best practices, determined that disclosure of actual conflicts and risks must be explained in plain terms.

They set forth the minimum standards for attorney conduct such as duty of competence parentheses rule 1.1 ), confidentiality parenthesis rule 1.6 ), and avoidance of conflicts of interest parentheses rules 1.7 to 1.10 parentheses. Yet these baseline obligations does not always ensure the most effective and ethical lawyering.

offering lawyers a higher standard strive for in client service, firm management, and professional integrity. While

Recent revelations concerning the legal practices of high-profile attorney Gloria Allred and her firm have ignited renewed scrutiny of attorney ethics in California. As reported in the Wall Street Journal and Bloomberg Law, several former clients have accused the firm of coercive settlement practices, the misuse of non-disclosure agreements (NDAs), and emotionally abusive interactions—raising serious concerns under the California Rules of Professional Conduct (CRPC).

At the center of the controversy are allegations that Allred’s firm pressured clients to accept settlements, embedded arbitration clauses in retainer agreements to avoid public court challenges, and threatened excessive legal fees for those who wished to terminate representation prematurely. These claims—if substantiated—may implicate several provisions of California’s professional conduct framework.

Likewise, Rule 1.5 prohibits unconscionable or unfair legal fees. Threatening a client with exorbitant fees for terminating the relationship—especially in the emotionally fraught context of sexual violence litigation—may violate this ethical boundary. Notably, Allred’s firm’s use of NDAs and arbitration clauses in retainer agreements has drawn criticism for cloaking alleged misconduct in secrecy. While not per se unethical, the practice may breach Rule 1.8.1, which prohibits attorneys from entering into agreements with clients unless the terms are fair, fully disclosed, and understood.

⚖️ 1. Unconscionable Legal Fees – Rule 1.5

🔹 Case: In the Matter of Silverton

Citation: (Review Dept. 2005) 4 Cal. State Bar Ct. Rptr. 252

Summary: Attorney Silverton charged an elderly, mentally impaired client nearly $400,000 in legal fees, far exceeding the value of the services performed. The client had diminished capacity and relied on the attorney’s advice entirely.

Holding: The State Bar Court found the fees unconscionable under Rule 1.5 due to:

• The vulnerability of the client,
• The excessive nature of the fees,
• The lack of meaningful communication about the charges,
• The absence of any real benefit to the client.

Key Takeaway: Unconscionability can stem from both the amount and the circumstances under which the fee was obtained—especially involving vulnerable clients or lack of transparency.

Informed Consent and Coercion

The ethical requirement of informed consent is foundational in attorney-client relationships. Coerced agreement—whether to settlements, NDAs, or arbitration clauses—strips clients of autonomy. Clients like Efrosina Angelova, who reported feeling “exploited and disempowered,” raise the question of whether such consent was ever freely given.

Further, Rule 2.1 emphasizes a lawyer’s duty to exercise independent professional judgment and render candid advice. This obligation includes accounting for “moral, economic, social, and political factors.” Lawyers who purport to champion victims’ rights, yet utilize silencing mechanisms like NDAs, may be acting in ethical contradiction—publicly advocating for empowerment while privately diminishing it.

Best Practices for Ethical Client Advocacy

To avoid the pitfalls illustrated by this case, California attorneys should:

• Ensure clients understand all fee arrangements and dispute resolution clauses through transparent written disclosures.
• Refrain from pressuring clients into settlements and instead provide objective, supportive counsel.
• Avoid default use of NDAs unless they clearly serve the client’s interest and are agreed upon knowingly and voluntarily.
• Under Rule 8.4(c), refrain from conduct involving dishonesty, fraud, deceit, or misrepresentation—whether explicit or implicit.

Conclusion

The State Bar’s ongoing investigation will determine whether Allred’s firm violated the CRPC. Regardless of outcome, this case underscores the ethical imperative for California lawyers to prioritize client dignity, informed consent, and transparency above strategic or reputational considerations. As Kostial stated: “Going into mediation… doesn’t have to be further trauma.” For legal advocates, ensuring that truth holds must remain a non-negotiable professional duty.