January 23, 1974
Ethics Opinon 1974-2
SUBJECT: APPEARANCE FOR OTHER ATTORNEYS; TRAFFIC COURT ARRAIGNMENTS
An attorney desires an advisory opinion regarding the ethical propriety of appearing on behalf of other attorneys who associate the inquirer and seek his services in connection with appearances in the Traffic Arraignment Department of the San Diego Municipal Court.
Pursuant to the association of the inquirer, an appearance is made on behalf of another attorney in the Traffic Arraignment Court, a plea of "not guilty" is entered, a request for a jury trial is made, if the inquirer is so instructed, and the matter is, upon the request of the inquirer, referred to the Setting and Motion Department of the San Diego Municipal Court. The attorney associating the inquirer is thereafter advised of the completion of the arraignment and, additionally, is forwarded a copy of a Municipal Court form identifying pertinent facts relative to the arraignment and the next appearance made.
In consideration for the services rendered in accordance with the association, the inquirer is paid a fee of $5.00 for each appearance made.
The attorney may ethically provide the aforementioned service provided, however, that the association of attorneys is with the consent of the client.
STATUTES AND CANONS
There appears to be no prohibition against an attorney associating another attorney to undertake legal activities for and on behalf of a client or to provide advice. In this connection, the Rules of Professional Conduct of the State Bar of California, the Canons of Professional Ethics of the American Bar Association and the Code of Professional Responsibility are absent any provision which would, in the opinion of the writer, proscribe the association of attorneys under the facts as presented in the instant inquiry.
Canon 35 has some application to the matter and provides inter alia:
". . . A lawyer's responsibilities and qualifications are individual . . . . A lawyer's relation to his client should be personal, and the responsibility should be direct to the client . . ."
Again, it is the opinion of this writer that a prohibition against association of attorneys per se is not violative of the aforementioned Rules, Canons or Code; however, it is the duty of a lawyer to maintain direct responsibility with his client.
Although it is not indicated whether the fee paid to the inquiring attorney for the services performed in appearing for the purposes of traffic arraignment contemplate division of a fee paid by the referring attorney's client, it is unquestionable that such a division is prohibited by the Canons of Professional Ethics unless the division of fees is based upon a division of service and responsibility; moreover, such division is not proper unless the client consents to the employment of another attorney after full disclosure that a division of fees will be made. See Canon 34.
A review of the opinions, both formal and informal of the Committee on Professional Ethics and Grievances of the American Bar Association fails to disclose any opinion relating to facts similar to those presented in the instant inquiry. While there are numerous opinions concerning the association of attorneys in other jurisdictions and the manner in which the attorneys who are associated may be identified in pleadings, on business cards and in other respects, clear distinctions may be drawn which render such opinions inapplicable to the present inquiry. Accordingly, the conclusion contained herein is not founded upon Committee opinions.
Of assistance in achieving a resolution of the question presented is the authority contained in the treatise on Legal Ethics by Henry S. Drinker (1953) wherein the author states that "a lawyer may not delegate his professional functions." Drinker, Legal Ethics, supra at page 160 (citing authorities). Further, the rule is stated that a lawyer may not arrange for or permit a lawyer in another jurisdiction to appear on behalf of his client, except with the client's prior consent. Drinker, Legal Ethics, supra at page 161 (citing authorities). It would appear, then, that an association of attorneys must be with the consent of the client and without such consent an association is improper.
Manifestly, an attorney may associate another attorney to engage in a legal activity, provide advice or participate in matters for and on behalf of a client. It is also clear that an attorney must secure the consent of his client before associating another attorney. Since it is the duty of every attorney to assist in maintaining the integrity, competence and ethics of the legal profession, it is the opinion of the writer that the inquirer may perform the services intended, however, an association of attorneys to allow the inquirer to act for and on behalf of the referring attorney and his client must be with the consent of the client as represented by the referring attorney or in other appropriate manner. The inquirer should affirmatively seek and secure evidence of such consent in satisfaction of his duty.
Although it may be argued that the perfunctory nature of the service to be performed by the inquirer is such as not to require the consent of the client, there exists no authority which supports any distinction between acts or performance on the part of an attorney which significantly affect the client and those which are merely perfunctory.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: A.B.A. Canon 35 was followed prior to 1970; this subject is now covered by EC 5-1 of the A.B.A. Code of Professional Responsibility.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.