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Unauthorized Communication from Opposing Counsel Does Not Support Motion for Disqualification
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Police officer subject to internal affairs investigation was interviewed by other officers
with counsel for the officer in the investigation and
deputy city attorney present. Questions about a separate matter where officer was represented by other counsel were asked and objected to on the grounds of attorney client privilege. Deputy city attorney rejected the privilege claim and the officer was instructed to answer on pain of possible termination. Deputy city attorney also asked questions directly of the officer that were answered. The trial court granted the officer's motion to disqualify the city attorney's office. The Court of Appeal reversed. Despite the unauthorized contact with a party represented by counsel, a transcript of the interview showed that no confidential information was disclosed. Under these circumstances, disqualification would be unduly punitive.
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Disqualification Denied Where Conflicted Representation Unobjected to Over Ten Years
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Law Firm began representing Water District in complex litigation over groundwater in 2004. Another water district (Antelope Valley - East Kern: AVEK) was represented by the same firm as general counsel. In 2006, AVEK became embroiled in the litigation and employed other attorneys to represent it. Ten years after that, and after most of the litigation had been resolved, AVEK discharged Law Firm and demanded they withdraw as counsel for Water District; six months later AVEK moved to disqualify Law Firm. The trial court denied the motion; the appellate court confirmed. Despite the lack of written consent for the conflicted representation (former Rule Prof. Conduct 3-310(c)) AVEK'S effectively consented to Law Firm's representation by the inordinate delay in objecting and moving to disqualify.
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Award of Sanctions Reversed for Failure to Comply with "Safe Harbor" Provisions
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Pursuant to a former version of Code Civ. Proc. 128.5, the trial court ordered plaintiff and plaintiff counsel's to pay $30,000 in fees. The motion requesting sanctions was served and filed on the same day, and no "safe harbor" period was afforded for plaintiff and plaintiff's counsel to correct the challenged conduct. The appellate court originally concluded that the "safe harbor" provision contained in Code Civ. Proc. 128.7 did not apply, but the Legislature's subsequent clarifying amendment of the section and the contrary opinion of another court convince the Court of Appeal that they must reach a different conclusion. Order reversed.
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Public Comment: Client Perjury
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The opinion considers: What are the attorney's duties when the attorney suspects, but does not know, a client's witness who is expected to testify at a civil trial has testified falsely, albeit favorably, for the attorney's client at deposition? What are the attorney's duties when the attorney knows, rather than merely suspects, the same witness has committed perjury and yet the client instructs the attorney to use the witness's false testimony at the upcoming civil trial? The facts are the same as Issue #2, except the attorney first learns of the perjury after the witness has testified at trial. Thus, what are the attorney's duties, if any, after a witness has committed perjury at trial but the client has instructed the attorney not to reveal the perjury?
The opinion interprets rules 1.6, 1.16, and 3.3 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6068, 6106, and 6128.
The opinion digest states: Because an attorney must represent a client zealously, the attorney may offer testimony of questionable credibility; however, because of the duty of candor to the court, an attorney must not present or use testimony known to be false even if the client has instructed them to do so. If the testimony has already been offered, the attorney must take reasonable remedial measures to correct the record without violating the duty of confidentiality. If such measures fail, the attorney may have a duty to seek to withdraw from the representation.
Deadline for comments: February 27, 2019
Direct comments to
Angela Marlaud
Office of Professional Competence
State Bar of California
180 Howard St.
San Francisco, CA 94105
Phone: 415-538-2116
Fax: 415-538-2171
Email:
angela.marlaud@calbar.ca.gov
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New Rules of Professional Conduct Now Effective
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The new California Rules of Professional Conduct became effective November 1, 2018. All lawyers admitted or practicing in California (
Rule 8.5(a)) are subject to these new rules. They follow the American Bar Association Model Rules numbering system and adopt much of the text of the Model Rules, along with many California changes. These Rules will dramatically change the way California lawyers practice -- especially new Rule 1.7 on conflicts, new Rule 1.15 on handling clients funds, new Rule 4.3 on contact with represented persons, new Rules 5.1, 5.2 and 5.3 on supervising subordinate lawyers and non-lawyers and new Rules 7.1-7.5 on advertising and solicitation. But there is much more in the new Rules that you need to know about. Below is link the Court's order approving the Rules and the text of the new Rules.
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California Supreme Court Adopts Attorney Fingerprinting Rule
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New California Rule of Court 9.5.5 Requires All Attorneys to be Fingerprinted Before December 1, 2019
On June 1, 2018, the California Supreme Court adopted new California Rule of Court 9.9.5 requiring all California attorneys to submit new fingerprints to the State Bar by December 1, 2019. Failure to do so. Failure to be fingerprinted if required by this rule may result in involuntary inactive enrollment pursuant to Business and Professions Code section 6054, subdivision (d). Attorneys are required to bear the cost of the fingerprinting.
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David C. Carr
David C. Carr is a lawyer in private practice in San Diego, California. Since 2001 his practice has focused on representing attorneys in matters involving legal ethics and the law of lawyering, including discipline defense, bar admissions, attorney fee disputes, attorney professional responsibility and ethics advice.
Mr. Carr graduated from Loyola Law School in 1986 and was admitted to the California Bar that year. After practicing in business litigation and commercial law, Mr. Carr spent 12 years as staff attorney, discipline prosecutor and manager at the State Bar of California, before returning to private practice in 2001.
Mr. Carr is a member of the San Diego County Bar Association, where he serves on the Legal Ethics Committee. He is also a member of the
Association of Professional Responsibility Lawyers, the
Association of Discipline Defense Counsel (President from 2008 through 2010), and the State Bar Committee on Professional Responsibility and Conduct (COPRAC). Mr. Carr is a member of the adjunct faculty at Thomas Jefferson School of Law, where he has taught professional responsibility.
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