At its meeting on October 25, 2019, the State Bar Council adopted the ethics opinions summarized below:
2018 Formal Ethics Opinion 8
Advertising Inclusion in Self-Laudatory List or Organization
Opinion rules that a lawyer may advertise the lawyer’s inclusion in a list or membership in an organization that bestows a laudatory designation on the lawyer subject to certain conditions.
2019 Formal Ethics Opinion 5
Receipt of Virtual Currency in Law Practice
Opinion rules that a lawyer may receive virtual currency as a flat fee for legal services, provided the fee is not clearly excessive and the terms of Rule 1.8(a) are satisfied. A lawyer may not, however, accept virtual currency as entrusted funds to be billed against or to be held for the benefit of the lawyer, the client, or any third party.
2019 Formal Ethics Opinion 6
Offering Incentive to Engage with Law Practice’s Social Networking Sites
Opinion rules that, depending on the function of the social media platform, offering an incentive to engage with a law practice’s social media account is misleading and constitutes an improper exchange for a recommendation of that law practice’s services.
Ethics Committee Actions
The Ethics Committee considered a total of six inquiries at its meeting on October 24, 2019, including the three opinions listed above that were subsequently adopted by the State Bar Council. Of the remaining three inquiries, two inquiries were returned to subcommittee for further study, including an inquiry addressing the permissibility of certain communications with judges and a new inquiry concerning whether the Rules of Professional Conduct permit a lawyer to advance a client’s portion of settlement proceeds. Lastly, the committee approved for publication a proposed opinion on the use of attorney eyes only disclosure restrictions, which appears below.
Proposed 2019 Formal Ethics Opinion 7
Attorney Eyes Only Disclosure Restriction
October 24, 2019
Proposed opinion rules that a lawyer may agree to an “attorney eyes only” disclosure restriction without client consent.
Lawyer represents Client in a wrongful discharge action and seeks production of discovery related to other employees (including employee personnel files). Due to the sensitivity of the information, opposing counsel agrees to produce the requested material only if Lawyer agrees to a “Stipulated Protective Order” containing an “Attorney Eyes Only” provision, which provides that opposing counsel may designate certain sensitive or highly confidential information as “Attorney Eyes Only,” and discovery materials designated as “Attorney Eyes Only” may not be disclosed to Client.
Lawyer reasonably believes that the requested material is necessary for Lawyer to effectively advise and represent Client. Lawyer is concerned that refusal to accept the “Attorney Eyes Only” restriction will cause opposing counsel to object to the discovery request and/or move for a protective order, resulting in delayed production, entry of a protective order for the requested material, or an order denying Lawyer’s request for the material.
May Lawyer agree to the Stipulated Protective Order containing the “Attorney Eyes Only” provision?
Yes. Rule 1.2(a)(3) allows a lawyer to “exercise his or her professional judgment to waive or fail to assert a right or position of the client.” Accordingly, a lawyer may agree to receive information under certain restrictions such as an “attorney eyes only” condition if the lawyer determines that doing so is in the client’s best interest and is in accordance with applicable law. In evaluating an “attorney eyes only” disclosure restriction, the lawyer should consider whether such a restriction is appropriate in the client’s specific matter. If the lawyer concludes that such a restriction is reasonably necessary to obtain relevant materials to effectively represent his or her client, the lawyer can receive the information pursuant to the restrictive conditions, but the lawyer should consider negotiating for the least restrictive disclosure requirement. Nevertheless, the lawyer may rely on his or her professional judgment to receive the information pursuant to an “attorney eyes only” or other limiting agreement. Rule 1.2(a)(3).
A lawyer, however, should proceed with caution when evaluating an “attorney eyes only” agreement. The use of an “attorney eyes only” disclosure restriction may create a conflict of interest for the lawyer under Rule 1.7(a)(2) in that the lawyer’s representation of the client may be materially limited by the lawyer’s responsibilities to opposing counsel via the disclosure restriction. This is particularly true in a criminal case, where a lawyer’s duties under such an agreement could conflict with the client’s statutory or constitutional rights to receive certain information. In addition, the lawyer must promptly inform his or her client of the discovery agreement. See Rule 1.4. If the lawyer and client cannot agree about the means to be used to accomplish the client's objectives, and the lawyer cannot reach a mutually acceptable resolution with the client, the lawyer may need to withdraw from the representation. Rule 1.2, cmt. .