by Jason Moberly Caruso
A common piece of advice (honored more in the breach than in practice) is to “not take your work home with you.” That is easier said than done for attorneys and bench officers, as many regulations may impact their ability to engage in particular activities outside the office or courthouse. The following discusses a collection of those restrictions and the attendant considerations to keep in mind when deciding whether to engage in those activities, and the potential professional ramifications.
Professional Organizations Attorney membership in professional organizations can be socially beneficial, and can also result in marketing and leadership opportunities. However, superficially innocuous activities can result in inadvertent rule violations.
For example, Business & Professions Code section 6155(a) generally prohibits the operation of an organization whose “direct or indirect purpose, in whole or in part,” constitutes “referring potential clients to attorneys, and no attorney shall accept a referral of such potential clients” unless the organization is certified by the State Bar, operates in conformity with specified minimum standards, and does not result in increased fees charged to the client.
Such organizations include the Orange County Bar Association’s Lawyer Referral & Information Service (http://www.lrisoc.org/). However, other organizations that don’t at first blush appear to be referral services may in fact be so. For example, a networking group whose purpose is for members to provide referrals to one another may constitute such a service, particularly if the organization requires a minimum number of referrals or requires payment of a membership fee. See San Diego County Bar Ass’n Form. Opn. 2021-1.
If such an organization does not comply with section 6155, the attorney accepting such referrals (or even just paying for membership) may be in violation of the State Bar Act and rules 8.4(a) and 7.2(b) of the California Rules of Professional Conduct (“CRPC” or “Rules”). Key considerations include whether the membership fee constitutes an indirect payment of value “for the purpose of” recommending or securing the lawyer’s services; that is prohibited. Jackson v. Legalmatch.com, 42 Cal. App. 5th 760, 773 (2019). Other considerations include whether members are required to make referrals as a condition of membership. Exempting attorneys from referral requirements does not necessarily resolve the issue: participating attorneys may nevertheless be in violation of Rule 7.2(b)’s proscription against providing value in exchange for referrals. See NYSBA Ethics Opn. 791 (2006) (construing similar New York Code of Professional Responsibility, rule DR 2-103).
Bench officers1 are generally permitted to serve as officers, directors, or nonlegal advisors to organizations devoted to improvement of the administration of justice, or nonprofit educational, religious, charitable, service, or civics organizations. Cal. Code Jud. Ethics, Canon 4C(3). While bench officers may assist in planning or managing fundraising, they are generally prohibited from personally soliciting funds or participating in other fundraising activities. Cal. Code Jud. Ethics, Canon 4C(3)(d). Solutions include creating separate organizational advisory boards that involve no fundraising functions or requirements.
While attorneys often seek advice or mentorship from bench officers regarding participation in charitable, civic, or other organizations, such officers are advised not to solicit or encourage membership in such organizations if the attorney is likely to ever appear before the court on which the bench officer serves, given the danger that the person solicited will feel obligated to respond favorably. Advisory Comm. Comment to Cal. Code Jud. Ethics, Canon 4C(3)(d). While laudable in purpose, this restriction has the unfortunate effect of leading many bench officers to refrain from any suggestion that an attorney become a member of any such organizations, lest the suggestion be interpreted as coercive.
Political and Expressive Activities While attorneys enjoy the same constitutional rights afforded to others, they cannot let personal belief or the exercise of those rights adversely affect their execution of their professional duties to clients. For example, in Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811 (2011), the Supreme Court considered a situation where an attorney publicly opposed a former client’s development project, having allegedly used the client’s confidential information in the process. While attorneys are generally permitted to “publicly take personal positions on controversial issues without regard to whether the positions are consistent” with those of their clients, “a lawyer’s right to freedom of expression is modified by the lawyer’s duties” to those clients. Id. at 824. Critically, the California Supreme Court held that an attorney is barred from “both disclosing or using the former client’s confidential information against the former client[,]” even if the attorney is not working in service for another client or actually disclosing such information. Id. at 823.
Attorneys have no general duty to advise clients regarding whether their personal views, memberships, or activities may potentially impact the representation, but informed written consent would nevertheless be required if there is a significant risk that their relationships or interests may materially limit their representation. Rule 1.7(b). This may include scenarios where an attorney’s service as a government or public official conflicts with the interests of a client. See Two Thirty Nine Joint Venture v. Joe, 60 S.W.3d 896, 909 (Tex. App. 2001), rev’d on legislative immunity grounds 145 S.W.3d 150 (Tex. 2004).
Attorneys also have the right under the First Amendment to publicly advocate civil disobedience, including violations of the law, except where directed to and if likely to incite imminent lawless action. Brandenburg v. State of Ohio, 395 U.S. 444, 447 (1969). However, that is tempered by attorneys’ general duty to “support the Constitution and laws of the United States and of this state.” Cal. Bus. & Prof. Code, § 6068(a).2 Accordingly, even attorneys who are adamantly and truly opposed to existing law cannot advise their client to violate said law. See Cal. State Bar Form. Opn. 2003-162. Nor may an attorney assist a client in conduct the attorney knows to be criminal or fraudulent. Rule 1.2.1(a). However, there is a critical carve-out to that prohibition for advice regarding the potential consequences of such conduct, including where such is a means of protesting a law/policy the client finds objectionable. Rule 1.2.1(b), cmt. [4].
Bench officers have heightened restrictions against participation in “political activity” that may create the appearance of political bias or impropriety. Cal. Code Jud. Ethics, Canon 5. While this restriction is not intended to prevent a bench officer from engaging in private comment, bench officers are required to be mindful of how such comment (particularly on social media) might be perceived by the public and whether it might call into question judicial impartiality. Cal. Sup. Ct., Com. Jud. Ethics Opns., CJEO Exp. Opn. 2021-042.
Similarly, bench officer attendance at and participation in political gatherings should be restricted so as to avoid the appearance of improper public endorsement or lending the prestige of office to nonjudicial candidates or political measures unrelated to the legal system. Cal. Sup. Ct., Com. Jud. Ethics Opns., CJEO Form. Opn. 2020-014. Speaking to political gatherings is permitted, so long as the topic is limited to the law and administration of justice, and it does not create the perception that the bench officer is speaking on behalf of the organization or endorsing a nonjudicial candidate. Cal. Supreme Ct., Com. Jud. Ethics Opns., CJEO Form. Opn. 2016-008.
Conclusion As illustrated above, attorneys and bench officers are subject to restrictions that continue to govern their behavior outside the office and courthouse, often in unintuitive ways. The foregoing restrictions require careful consideration of the risks and potential professional ramifications of engaging in such activities.
ENDNOTES
Jason Moberly Caruso is a partner with Newmeyer Dillion in Newport Beach, California, where he specializes in complex environmental and land use matters. He has been certified as a specialist in Appellate Law by the California Board of Legal Specialization. Mr. Caruso is a member of the OCBA’s Professionalism and Ethics Committee, and can be reached at jason.caruso@ndlf.com. The views expressed herein are his own.