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Ethics Opinions from the Bar Association of San Francisco

INFORMAL OPINION 1973-26

An attorney may prepare a contract between his son and another party, both of whom are physicians; and he may represent both of them if the implications of such common representation are fully explained to the non-relative client and he intelligently consents thereto.

FACTS:

A lawyer has been requested to prepare a contract relating to an agreement between his son and another person, both of whom are doctors of medicine.

For these purposes, we may assume that the attorney has fully explained the implications of the common representation to the nonrelative client and has obtained his consent to his continued employment.

QUESTION:

Notwithstanding the consent of the client, does the relationship of father and son make it ethically improper for the attorney to continue his representation?

DISCUSSION:

Rule 7 of the Rules of Professional Conduct of the State Bar of California requires only that: "A member of the State Bar shall not represent conflicting interests, except with the consent of all parties concerned". The qualification seems to be satisfied in the case under consideration.

It should be noted, however, that Rule 1 states in part: "The specification in these rules of certain conduct as unprofessional is not to be interpreted as an approval of conduct not specifically mentioned. In that connection the Canons of Ethics of the American Bar Association are commended to the members of the State bar". If we may assume that the family relationship is outside of the contemplation of Rule 7, Canon 5 treats the subject more fully and clearly states in EC 5-15 that a lawyer should never represent in litigation multiple clients with differing interests but that there are many instances in which a lawyer may properly serve multiple clients having potentially differing interests in matters not involving litigation. If the interests vary only slightly, it is generally likely that the lawyer will not be subjected to an adverse influence and that he can retain his independent judgment on behalf of each client. Although this would not seem to be the case in a father-son relationship, the sophistication of the other client must be considered.

CONCLUSION:

It is our opinion that the test of sophistication would be satisfied with an intelligent consent given by the medical doctor in this situation and it is ethically proper to continue the employment.

 

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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