Ethics for New Lawyers: The Seven C’s of Ethical Lawyering

Every attorney, no matter what type of law they practice, is required to adhere to the Rules of Professional Conduct. The violation of any one of those Rules creates a situation where the State Bar may impose discipline. A violation also could render the entire representation to be incompetent, which is the very first Rule, so it is extremely important to “carve them in stone” for purposes of every representation undertaken.

An easy mnemonic to apply to every situation when undertaking a new representation is what I call “The 7 C’s”.  Specifically, ask yourself these questions and make sure you have an acceptable answer to them before saying “yes” to any new client: 

• Who is my CLIENT?
• Are there any CONFLICTS that could affect the representation?
• Am I COMPETENT in this area of law?
• What is fair COMPENSATION for this representation?
• Can I effectively COMMUNICATE with my client?
• Will I be able to maintain strict CONFIDENTIALITY?
• Will I be sure to behave in a CIVIL manner, in all of my dealings with client, court, and opposing counsel?

As funny as it sounds, asking “who is my Client? or “who will be my Client?” in this representation is absolutely critical for an attorney to be clear on before agreeing to represent anyone. It is particularly helpful to determine who the Client is in order to satisfy the requirement to avoid Conflicts and to maintain Confidentiality. The easiest way to avoid problems in this area is to confine oneself to a single client—whether a live person or a corporation—because of the duty to maintain adherence to Business & Professions Code §6068, which states “It is the duty of an attorney to do all of the following:

…

(e)(1): To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

Cal. State Bar Formal Op. Nos. 1993-133 and 1986-87:  The first part of B&P §6068(e) (“to maintain inviolate the confidence . . . of his or her client”) has been interpreted to mean that an attorney may not do anything to breach the trust reposed in the attorney by the client.

Since, as attorneys, we owe each client a duty of undivided loyalty, having more than one client in any given matter creates at least a potential conflict, which has to be disclosed in a written informed consent and waived by all clients.

The second “C” involves determining whether or not the attorney has or will have any Conflicts of interest that may interfere with the duty of undivided loyalty to each client. Failure to properly address conflicts of interest can result in:

• Disqualification from further representation of the client(s) 
• Claims of malpractice/breach of fiduciary duty
• Fee disgorgement
• Embarrassment to lawyer and firm
• Money damages and 
• State bar discipline

A lawyer’s duties that are implicated in Conflict situations are:

• The duty of undivided loyalty
• The duty to exercise independent judgment
• The duty of confidentiality
• The duty to provide competent representation; and
• The duty to communicate with the client

Whatever the clients may believe about their interests being in concert, joint representation usually involves at least potential conflicts of interest, and these, too, are subject to obtaining written informed consent and waiver before a lawyer undertakes the representation. (RPC 1.7-Current clients) As part of providing disclosure to obtain informed written consent, all clients should be advised of the provisions of Evidence Code Section 962, which provides that where multiple clients consult a lawyer on a matter of common interest, they may not claim the attorney-client privilege against one another when evidence of otherwise privileged communication are offered in a civil proceeding between two or more of them. Conflicts can also exist between current and former clients, clients and other members of a law firm or their clients, or clients and family, which also require informed consents and waivers. (See RPC 1.8- 1.8.11)

The third “C” is Competency. RPC 1.1 and B&P Code §6068 require a lawyer to act competently. For purposes of this rule, “competence” in any legal service shall mean to apply the (i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service. If a lawyer is not competent in a particular area when first undertaking a client’s matter, they may still provide competent representation by acquiring the skill, or consulting with, associating in, or referring the client to an attorney who is competent in the area.

Compensation is “C” number four. RPC 1.5 warns that lawyers may only charge a reasonable fee. There are a number of criteria in the Rule that guide lawyers as to what a reasonable fee is and isn’t. There are also fee arbitration guidelines on the State Bar website that provide new lawyers with a comfort level in what to charge for and how much is a reasonable rate to charge.

The fifth “C”— Communication—is one of the most important insofar as your clients are concerned. The number one complaint that the State Bar receives from clients about their attorneys is that the attorney doesn’t return their calls or emails. It is important to have a manageable case load so that you have the time and ability to respond and regularly communicate with your clients about the representation. “Communication” is not just a one-way street. It implies understanding on the part of the client. If the client is not taking the attorney’s advice, for example, the attorney must assume that the client doesn’t fully understand it, and must make sure that the advice is being communicated in a way that the client will understand it. The surest way to do this is to put it in writing.

“C” number six, “Confidentiality”, is one that every lawyer and lay person probably knows about: the attorney-client privilege rule. B&P 6068(e)(1), cited earlier in this article, requires that an attorney keeps the confidences and secrets of clients “at every peril to him or herself.” Remember that “confidentiality” means everything of a private nature, not just communications within the bounds of secrecy. Even if the information is findable—like in a document filed in court—may be something a reasonable client would expect their lawyer to keep quiet about. Revealing information about a client that a reasonable person would expect to be kept in confidence, can subject a lawyer to discipline

The seventh “C”, Civility, is more important than ever now. The increasing tensions and lack of civility in society as a whole, make it even more of a priority for lawyers to keep the dialog at a civil level. In 2014, “Civility” was added to a lawyer’s oath under the California Rules of Court, Rule 9.7. That oath is: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy and integrity.” This is no empty gesture. B&P §6103, which is part of the State Bar Act that confers on the State Bar the ability to regulate the legal profession, states: “A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.” For a lawyer’s own sake, behaving in a civil, professional manner makes life a lot less stressful. Lawyering is a difficult enough job without being rude. 

LaSalle v Vogel (2019) 36 Cal.App.5th 127-1 sums up the need for civility in the legal profession succinctly. Justice Bedsworth wrote: “All too often today we see signs that the practice of law is becoming more like a business and less like a profession. We decry any such change, but the profession itself must chart its own course. The legal profession has already suffered a loss of stature and of public respect. This is more easily understood when the public perspective of the profession is shaped by cases such as this where lawyers await the slightest provocation to turn upon each other. Lawyers and judges should work to improve and enhance the rule of law, not allow a return to the law of the jungle.”  

Finally, the lawyer should consider the additional benefits of civility within the profession. 

• Behaving cordially and civility will benefit the mental health of everyone in the profession—opposing counsel, the judge, jurors, court staff, clients, and YOU
• Cases are easier to resolve when the lawyers act with kindness and decency. Much less expensive for the client
• Often in litigation, the parties loathe and despise each other. That’s why lawyers are the most effective when dispassionate. Behaving as if the opposing side is the “enemy” doesn’t accomplish the purpose for parties having lawyers in the first place!