Risk Update

Law Firm Risk News — California’s Adopts New Bar Conflicts Rules, Georgia Prospective Client Puzzle

Posted Dan Bressler

“California Supreme Court Approves Conflict of Interest Rules for the State Bar of California” —

  • “The California Supreme Court on Tuesday approved three measures to identify and prevent conflicts of interest involving the State Bar of California.”
  • “The California Supreme Court approved, with significant modifications, amendments to rule 9.11 of the California Rules of Court to ensure those who seek to serve as State Bar Court judges are screened for actual and potential conflicts of interest.”
  • “The court modified the State Bar’s proposal to require the screening committee to determine whether a candidate for the State Bar Court has financial or nonfinancial interests or relationships with other attorneys that would impact the applicant’s ability to serve ‘in a manner that avoids impropriety, the appearance of impropriety, or frequent disqualification.'”
  • “The court also made modifications to the State Bar’s proposal for screening applicants for the State Bar Board of Trustees under rule 9.90 of the California Rules of Court. Those changes require the screening committee to determine whether a candidate’s ‘relationships with other attorneys’—and not just their financial or nonfinancial interests—would impact the applicant’s ability to serve as a trustee with “disinterested skill and undivided loyalty” to the State Bar.”
  • Text of the rules here.

Professor Alberto Bernabe writes: “Does Georgia not have a rule about prospective clients? — CORRECTION!” —

  • “Does Georgia not have a rule equivalent to Model Rule 1.18 on the duties owed to prospective clients? … That’s a rhetorical question because I looked it up and they do. But you wouldn’t know it if you read the news about a recent case decided by the state Supreme Court.”
  • “According to the story, published in the ABA Journal online, the Georgia Supreme Court recently tossed a disciplinary case against a lawyer who had been charged with using information revealed by a potential client in a consultation.”
  • “What I find interesting about this story is that the court apparently ruled that the lawyer could not be disciplined because the rule at issue in the case only applies to actual clients. In other words, the court apparently said that the duty against using confidential information (in rule 1.8) does not apply to prospective clients.”
  • “That’s fine and dandy but what about rule 1.18? If the conduct was improper use of confidential information obtained from a prospective client, that would have been the proper rule to apply, and it sounds like the lawyer did violate it.”
  • “UPDATE 11/7/23: As I said above, my comment was based on the story about the decision, not on the decision itself, which I had not located (and therefore had not read). Now I have heard from a friend [Bill Freivogel] who did just that and he reports that there is a footnote in the opinion that explains that Rule 1.18 was adopted in Georgia after the conduct in question happened. Now that helps make more sense of the story.”