PLEASE NOTE:  Publication for public comment is not, and shall not be, construed as a recommendation or approval by the Board of Trustees of the materials published.

SUBJECT:

Proposed Formal Opinion Interim No. 12-0004 (In Rem Bankruptcy Conflicts)

BACKGROUND:

The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 19, Article 2, Section 6(g) (as modified by Tab 12, Title 1, Division 2, Rule 1.10) of the State Bar Board Book, the Committee shall publish proposed formal opinions for public comment.

DISCUSSION/PROPOSAL:

Proposed Formal Opinion Interim No. 12-0004 considers: If an attorney represents an individual as a debtor in a no-asset Chapter 7 bankruptcy filing, while simultaneously representing one or more of the individual’s creditors in unrelated matters, is the attorney required by rule 3-310(C)(3) to obtain the informed written consent from both parties?

The opinion interprets rules 1-100, 1-650, 3-310 and 3-500 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code section 6068(m).

The opinion digest states: Simultaneous representation of a debtor in a no-asset Chapter 7 bankruptcy filing and creditors in unrelated matters does not create adversity triggering the informed written consent requirement of rule 3-310(C)(3), provided that the engagement is limited and certain intake procedures are employed to ensure that the Chapter 7 proceeding in which the attorney is involved is an in rem proceeding that focuses on the orderly distribution of the debtor’s assets and the discharge of debts.

At its Aug. 23, 2013 meeting and in accordance with its Rules of Procedure, the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 12 0004 for a 90 day public comment distribution. Subsequently, at its Jan. 24, 2014 meeting, COPRAC revised the opinion in response to the public comments received and, in further accordance with its Rules of Procedure, tentatively approved Formal Opinion Interim No. 12-0004 for an additional 60-day public comment distribution.

ANY KNOWN FISCAL/PERSONNEL IMPACT:

None

ATTACHMENT:

Proposed Formal Opinion Interim No. 12-0004

SOURCE:

State Bar Standing Committee on Professional Responsibility and Conduct

DEADLINE:

5 p.m., April 18, 2014

DIRECT COMMENTS TO:

Angela Marlaud
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Phone: 415-538-2116
Fax: 415-538-2171
E-mail: angela.marlaud@calbar.ca.gov