Ethics in Brief

Ethics in Brief is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association.

My Client Made Me Do It

Lawyers work hard to develop relationships with their clients. And lawyers are trained to be zealous advocates. Despite these circumstances, lawyers must still exercise their independent judgment to ensure that they comply with their ethical obligations.

Especially in a civil proceeding, the lawyer is the “captain of the ship,” meaning that the lawyer “controls which witnesses to call and evidence to present.” (See Vapnek, California Practice Guide: Professional Responsibility (The Rutter Group) § 8:190.) As the Supreme Court of California stated:

The authority . . . conferred upon an attorney is in part apparent authority -- i.e., the authority to do that which attorneys are normally authorized to do in the course of litigation manifested by the client’s act of hiring an attorney -- and in part actual authority implied in law. Considerations of procedural efficiency require, for example, that in the course of a trial there be but one captain per ship. An attorney must be able to make such tactical decisions as whether to call a particular witness, and the court and opposing counsel must be able to rely upon the decisions he makes, even when the client voices opposition in open court. In such tactical matters, it may be said that the attorney’s authority is implied in law, as a necessary incident to the function he is engaged to perform.

(Blanton v. Womancare (1985) 38 Cal.3d 396, 404 [citations omitted]; see also United States v. Fredman (2004) 390 F.3d 1153 [concluding that attorney provided effective assistance where electing to argue a “confession and avoidance” defense theory over client objections].)

For this reason, Rules of Professional Conduct, rule 3-700(C) permits lawyers to withdraw when a client interferes with ethical obligations, whether it be by insisting on pursuing frivolous claims or defenses, pursuing illegal conduct, insisting the lawyer break the law, or making it unreasonably difficult for the lawyers to exercise independent judgment and carry out the engagement effectively. Accordingly, lawyers may also withdraw when continuing the representation is likely to lead an ethical violation, and must withdraw when continuing the representation necessarily will result in a violation.

Lawyers should remember that they were engaged to represent their clients because of their superior skill and knowledge and advise their clients to pursue a different path if the clients suggest they engage in unethical conduct. They cannot use their status as advocates to justify ethical breaches.

-- David Majchrzak 

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**