Public Comment Sought on Proposed Ethics Rule

The State Bar seeks public comment on new Proposed Formal Opinion Interim No. 98-0001 (Offers of Settlement Conditioned on Client's Waiver of Statutory Right to Seek Attorney's Fees)

BACKGROUND: The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 19, Article 2, Section 6(g) of the State Bar Board Book the Committee shall publish proposed formal opinions for a public comment period of no less than 60 days.

DISCUSSION/PROPOSAL: Proposed Formal Opinion Interim No. 98-0001 considers the situation where, in a lawsuit prosecuted by Attorney A against Defendant, Client has a statutory right to seek an award of attorney's fees. Attorney B, Defendant's counsel, makes a settlement offer, conditioned on Client's waiver of his statutory right to attorney's fees, that is insufficient to compensate Attorney A for her fees. (1) May Attorney A bar the settlement notwithstanding Client's desire to accept it? (2) Does Attorney B violate any ethical obligation by recommending or conveying the fee-waiver settlement offer in this case? (3) Does Attorney B violate any ethical obligation by recommending or conveying fee-waiver settlement offers in cases generally?

The opinion interprets rules 1-500, 3-210, 3-510 and 4-200 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6068, 6069, and 6103.5.

The opinion digest states: 1) A lawyer must inform the client of a fee-waiver settlement offer and consummate the settlement in accordance with the client's wishes even if it reduces the likelihood of recovering some or all of his or her fees. 2) A lawyer does not violate any ethical obligation by recommending or conveying a fee-waiver settlement offer in a given case. 3) A lawyer does not violate any ethical obligation by recommending or conveying fee-waiver settlement offers in cases generally.

At its June 20, 2008 meeting and in accordance with its Rules of Procedure (State Bar Board Book Tab 19, Art. 2, Sec. 6(g)), the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 98-0001 for a 90-day public comment distribution.

COMMENT DEADLINE: October 31, 2008

DIRECT COMMENTS TO:

Angela Chang
Office of Professional Competence, Planning and Development
The State Bar of California
180 Howard Street
San Francisco, CA 94105
415-538-2116
415-538-2171 Fax