This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

self-study / Legal Ethics

Mar. 22, 2024

Legal ethics lessons learned from COPRAC opinions

Joanna L. Storey Mishler

Senior Counsel, Klinedinst PC

As a lawyer's lawyer and frequent speaker, I turn to ethics opinions to help clients and CLE attendees navigate risk management and thorny ethical dilemmas. Through that experience, I realize that lawyers often overlook the valuable insight offered by opinions issued by the Committee on Professional Responsibility and Conduct (COPRAC) of The State Bar of California. I find that many lawyers don't even know that COPRAC exists. So if that's you, you are not alone.

According to its website, COPRAC "addresses matters involving professional ethics to facilitate compliance by licensees with their ethical duties." For example, COPRAC drafts advisory ethics opinions that are released for public opinion before they become final.

That charge is important, so it bears repeating with emphasis. COPRAC drafts advisory opinions that are released for public opinion before they become final. This showcases one of those speak now or forever hold your peace moments. If there is an ethics issue that is near and dear to your practice, you would be wise to sign up for COPRAC alerts to be informed when new draft opinions are out for comment, so you can weigh in before they become final.

There is also an option to provide the committee with a hypothetical question for them to consider addressing in a formal opinion, with exceptions as stated on The State Bar's website. But don't expect an immediate response. A tradeoff for a thorough process, including the invitation for public comment, means that an opinion usually takes years between idea conception and publication.

Of note, COPRAC's ethics opinions are not binding. COPRAC also drafts fee arbitration advisory opinions, conducts studies about professional responsibility, and recommends changes to the Rules of Professional Conduct.

Most recently, COPRAC issued "Practical Guidance for the Use of Generative Artificial Intelligence in the Practice of Law." First and foremost, the committee addressed the Duty of Confidentiality (Rule 1.6) when stating: "A lawyer must not input any confidential information of the client into any generative AI solution that lacks adequate confidentiality and security protections." The guidance also addressed the Duty of Competence (Rule 1.1), noting the most basic guiding principle that a lawyer should apply to any new technology, to "understand to a reasonable degree how the technology works, its limitations, and the applicable terms of use. ..." Rounding out a trifecta of key rules, the guidance addresses my personal favorite - the Duty to Supervise (Rule 5.1). The important takeaway for this one is the call to provide "training on the ethical and practical aspects, and pitfalls, of any generative AI use." See COPRAC's website for more AI guidance.

Other must-reads for all lawyers include ethics opinions 2021-205: Duties to Prospective Client, 2020-203: Data Breaches, and 2019-197: Seeking Advice About Current Clients, in which you learn that, yes, you have duties to prospective clients, that prior planning prevents poor performance, that the act of seeking legal ethics advice, alone, does not create a conflict with your client, and other important guiding ethics principles.

COPRAC has three proposed opinions that are currently out for public comment.

First, Proposed Formal Opinion Interim No. 20-0002 addresses a lawyer's ethical obligations regarding succession planning. This one is of paramount importance, not only for solo and small firms, but is also a must-read for every lawyer. All lawyers, even those at large firms, should have a plan in place to manage deadlines if they should unexpectedly become unavailable. The draft version also notes the practical effect of succession planning: "Succession plans are also good business strategy and provide a way to gradually transition client work and management roles over a period of time to preserve long-term client relationships."

Second, Proposed Formal Opinion Interim No. 20-0003 addresses flat fees and termination. If your firm offers flat fees, you'll need to know where this draft opinion lands in final form. For example, the current draft cautions that "Unearned funds, even if deposited into the operating account, are subject to being refunded if the representation is terminated and any of the services for which the fee has been paid are not completed." Some lawyers are not aware of this principle. The current draft explains that "midstream" renegotiation of flat fees is "subject to ethical scrutiny for fairness and reasonableness."

Third, Proposed Revised Formal Opinion No. 2021-206 addresses a lawyer's ethical obligations regarding colleague impairment in light of Rule 8.3. The new Rule 8.3's reporting requirement did not exist when 2021-206 was initially released. Thus, the proposed revised version considers: "What ethical obligations does a lawyer have when the lawyer or a lawyer in that lawyer's law firm has violated, is violating, or will violate the California's Rules of Professional Conduct or the State Bar Act in the course of representing a client as a result of the lawyer's possible mental impairment?" In particular, the proposed revision uses a hypothetical to explain the difference between mandatory and permissive reporting.

Other draft opinions in COPRAC's pipeline include topics like client file release and retention duties, lawyer as an expert witness, and cryptocurrency. If those topics are part of your practice, keep an eye out for the public comment period.

COPRAC is not the only source for ethics opinions. Many local county bar associations, the California Lawyers Association, and the American Bar Association also publish advisory opinions. The next time you face an ethical dilemma, see whether your issue has already been addressed by COPRAC or one of the many other resources available to California lawyers. And if it hasn't, perhaps it is time for a new ethics opinion.

The Klinedinst PC Ethics and Risk Management Team writes a monthly Practical Ethics Column to assist California Practitioners understand cutting edge ethics issues, manage risk, and ensure compliance. More about the Team and the authors--Heather L. Rosing, Dave Majchrzak, Joanna Storey, and Ryan Little-- can be found here:


Submit your own column for publication to Diana Bosetti

Related Tests for Legal ethics

self-study/Legal Ethics

Identifying and screening conflicted non-attorney staff

By Alanna G. Clair, Shari L. Klevens

self-study/Legal Ethics

How attorneys can end up on Santa's 'nice' list

By Alanna G. Clair, Shari L. Klevens

self-study/Legal Ethics

How much can judges socialize with lawyers?

By Wendy L. Patrick

self-study/Legal Ethics

Appellate ruling limits appearances by trustees and executors in pro per

By Mark J. Phillips, Jake V. Phillips

self-study/Legal Ethics

Lessons learned from classic fictional attorneys

By Joanna L. Storey Mishler

self-study/Legal Ethics

Programming professionalism: the ethics of artificial intelligence

By Wendy L. Patrick

self-study/Legal Ethics

Trauma-informed lawyering is our professional responsibility

By Sarah Abraham, Brenda Star Adams