Formal Opinion No. 2011-180
California Ethics Opinions
ISSUE: When does an attorney violate rule 4-400 of the California Rules of Professional Conduct by accepting a gift from a client?
THE STATE BAR OF CALIFORNIA STANDING COMMITTEE ON PROFESSIONAL RESPONSIBILITY AND CONDUCT
DIGEST: An attorney who demonstrates by words or conduct an intent to cause a client to give the attorney a substantial gift violates rule 4-400. Whether a gift is substantial must be determined by examining issues such as the value of the gift from the perspective of both the client and the attorney both financially and otherwise, as well as general standards of fairness.
INTERPRETED: Rules 1-100(B)(2) and 4-400 of the California Rules of Professional Conduct.
STATEMENT OF FACTS
Attorney represents Client in a real estate litigation matter in California that involves a second home that Client owns in Santa Barbara, California. Over the last year, Client has paid Attorney roughly $20, 000 in fees. During the course of negotiations regarding the Santa Barbara property, Attorney tells Client that although the house is normally rented for $5, 000 per week, Attorney feels that she has really earned a break and explains to Client that she would really be able to recharge her batteries and dive back into the case after relaxing for a week at the Santa Barbara property. Client, deeply invested in the result of the litigation but also facing difficult economic times herself, reluctantly hands Attorney the keys to the Santa Barbara house, agreeing that Attorney deserves a vacation and that she is free to stay there for one week without charge. Attorney gratefully accepts Client’s offer, not having the funds to pay the $5, 000 for a week. Has Attorney violated rule 4-400?
Rule 4-400 of the California Rules of Professional Conduct, entitled “Gifts From Client, ” provides:
A member shall not induce a client to make a substantial gift, including a testamentary gift, to the member or to the member’s parent, child, sibling, or spouse, except where the client is related to the member.
The Discussion to rule 4-400 provides: “A member may accept a gift from a member’s client, subject to general standards of fairness and absence of undue influence. The member who participates in the preparation of an instrument memorializing a gift which is otherwise permissible ought not to be subject to professional discipline. On the other hand, where impermissible influence occurred, discipline is appropriate.”
Rule 4-400, Discussion, citing Magee v. State Bar
(1962) 58 Cal.2d 423 [24 Cal.Rptr. 839]. Because of an attorney’s duty of fidelity to his or her client, all...