Real Lawyers Do Take Notes

The reported exchange between President Trump and the former White House counsel Mr. McGahn regarding his note-taking shines a light on one of the bigger fault lines in legal ethics: the tension between the lawyer’s role as an advocate for a client and the lawyer’s responsibilities to others.  Not a perfect example because McGahan was not Trump’s personal lawyer but for the Office of President, but close enough to illustrate some of the aspects of that fault line.

The fact that the distinction between his personal lawyer and White House counsel (and the Attorney General as well) seems to been lost the President is one aspect of that tension.  Lawyers for organizations are consistently called upon to remind corporate constituents that they don’t represent them, and themselves need to be reminded by Rule 1.13.  Clear understanding of who the client is the first task of any lawyer, a task sometimes difficult in government service where the client is an abstraction speaking through an individual. Lawyers generally have no duty to communicate with non-clients but they have a duty to communicate the true facts of the relationship to non-clients who might reasonably believe they are clients (see Butler v. State Bar (1986) 42 Cal.3d 323.)

Identifying the client is critical to the duty of the lawyer to communicate relevant limitations on the lawyer’s conduct as required by Rule 1.4(a)(4).  Among those limitations is the lawyer’s inability to lie for the client (Rule 8.4(c), Rule 3.3(a), Bus & Prof. Code §6068(d), §6106.) Another is lawyer’s inability to prosecute an action without probable cause to injure someone (Rule 3.1.) Another is the lawyer’s inability to advise the client to violate the law (in most instances) (Rule 1.2.1.)

Rule 1.2.1 occupies a position directly over that fault line.  Oliver Wendell Holmes famously characterized the lawyer’s duty as to zealously represent the client within the bounds of the law.   The conjures up the image of a race car speeding across the Bonneville salt flats and suddenly stopping on a dime.  Crossing the line can occur in many ways and unconsciously. Zeal can become zealotry, especially in emotionally charged representations. Clients want lawyers who care about their problems but lawyers must be sources of independent dispassionate advice.  Loyalty, money or the lawyer’s own emotional needs can interfere with this balancing act.

While a lawyer cannot counsel a client to violate a law, a lawyer can inform the client about what the law is, whether the client’s course of action might violate the law and what the consequences of that violation. In course of that give and take, the client may inevitably garner the information necessary to figure out how to violate the law with impunity.  Rule 1.4(a)(4) requires the lawyer to inform the client that the lawyer cannot advise the violation of the law, no matter what currents of meaning flow during the consultation.

An entertaining example of those currents of meaning is provided by what might be the best lawyer movie of all time, Anatomy of Murder, in the scene were lawyer Paul Biegler (Jimmy Stewart) first meets his client Lt. Manion (Ben Gazzara).  Manion has killed an innkeeper who allegedly raped Mrs. Manion (Lee Remick).  In the first meeting, Biegler tells Manion that he is “just explaining what the law is” but in the course of discussion, skillfully suggests to Manion exactly what facts he needs to hear to establish Manion’s defense to murder (see Freedman, Lawyer Ethics in an Adversary System (1975) at pages 59-75.)

 

President Trump, according to Mr. McGahn, expressed a fondness for lawyers who don’t take notes, presumably to reference to the late disbarred Roy Cohn.  Keeping important books and records is central to the concept of lawyering, to the point where the California Supreme Court has said that failure to do so“ is in itself a suspicious circumstance (Clark v. State Bar (1952) 39 Cal. 2d 161, 174.) When a client complains to the State Bar, the attorney-client privilege (and presumably, the duty of confidentiality) are waived and the State Bar’s inquiry letter will ask for all communications and all notes detailing conversations with the client. If there is any prospect that the attorney-client relationship will go south, a lawyer would be wise to document interactions with the client.  Of course, it isn’t always possible to document every conversation with a client and the 21st century has given us texting, perhaps the worst possible way to communicate between lawyer and client.  More than one lawyer has told me that all or most of their interactions with clients occurred through text messages and they have no way to recover them to disprove the client’s allegations.

What President Trump’s comments say about the nature of his interactions with Roy Cohn is best left to our fertile imagination, although given the well-documented information on the character of both, not too much imagination may be necessary. Rule 1.2.1 might be violated in subtle ways, but subtlety is not associated with either.  Mr. McGahn is a real lawyer; unfortunately, Roy Cohn was, too, at least until he was disbarred, and it probably takes no imagination to say that Rule 1.2.1 and its Model Rule equivalent are violated all the time.

Lawyers, take heed.  Take notes.  But also take notice the counseling a client can present an ethical challenge that you might not even be aware of.

DA Work Product: Who Does it Belong To?

 

When is a privilege not a privilege?

When it is the attorney work product “privilege” is at least one possible answer to that question.  A recent published opinion (People v. Superior Court (Jones, case no. D074028, published 3/09/19) from Fourth Appellate District, Div. 1, continues to the disrespect shown to this poor cousin of more respected privileges, such as attorney-client privilege. Maybe it just doesn’t have the long pedigree that its richer cousin enjoys as originating in the common law.  Maybe its because it is a legislatively created protection that bends easily when pushed by other important public policy considerations, despite its seemingly rigid language, especially Code of Civil Procedure 2018.030(a), which purports to prohibit any discovery into “core” work product, i.e. “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories.”  As Jones shows, absolute work product protection is less than absolute.

The case revolves around a criminal trial where the prosecution was later accused of Batson/Wheeler error, the Constitutional error that occurs when the prosecution removes jurors for a racial motive.  The prosecution defended its juror decisions at the Batson/Wheeler hearing by citing to its written analysis and juror information.  It then tried to shield those written materials as work-product.  At this point, you probably see where this is going.

This Court of Appeal found that the prosecution had waived its work product protection by citing to the materials in its defense.  But the Court also went out of its way to cite to black letter law on the attorney’s duty of candor to the court, Business and Professions Code section 6068(d) and former Rule of Professional Conduct 5-200 (now Rule 3.3) in knocking down prosecution’s argument that these statements could not be the basis of a waiver because the prosecutor was not a sworn witness, seeming to find the prosecution’s argument disingenuous.

There might seem to be circular logic to the Court’s position that citing to “writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories” in defending litigation decisions waives the work product protection – after all, isn’t such analysis the basis of most litigation decisions?  But the lynchpin of the explanation is that the statutory purpose of the work product protection, to protect the fruit of your lawyerly labor from being exploited by the opposition, is just not present in this context.

As the caption tells us, the prosecutor’s client in this matter is the People.  Disclosure of work product where it is in the client’s interest is another context where absolute work product protection is not absolute. The question of whether such work product ultimately belongs to the lawyer (the old view, articulated in San Diego County Bar Association formal ethics opinion 1977-3) or the client (the newer view, see State Bar formal ethics opinion 2004-1) still gets debated but there is no doubt that the client’s interests are paramount.  In this analysis, it is very much in the client’s interest to ensure Constitutional process in criminal prosecution.  The work product isn’t going to be exploited by the opposition but used by the client that paid for it.

This opinion seems to be creature of its context, but it may surely be used at some point to argue that the attorney work product protection has been waived.  If it stands, of course.  The case has already been to the Supreme Court once and it could be headed back.

SLAPP Happy: Anti-SLAPP Draws Sanctions and State Bar Referral

slap·hap·py

/ˈslapˌhapē/

adjective

informal

adjective: slap-happy

  1. casual or flippant in a cheerful and often irresponsible way.

“he possessed slaphappy courage”

synonyms: happy-go-lucky, devil-may-care, carefree, cheerful, breezy, easygoing, nonchalant, insouciant, blithe, airy, casual, irresponsible

“Drysdale’s slaphappy friend”

antonyms: serious, solemn
  • (of an action or operation) unmethodical; poorly thought out.

“slaphappy surveying methods”

synonyms: slapdash, careless, slipshod, lackadaisical, hasty, hurried, disorganized, haphazard, unsystematic, untidy, messy, thrown together, last-minute, hit-or-miss, offhand, thoughtless, heedless, negligent, neglectful, remiss, cursory, perfunctory, lax, slack; More

informalsloppy, shambolic, all over the place;

informalall over the shop

“the slaphappy way the tests were carried out”

antonyms: careful, meticulous, painstaking
  1. North American

dazed or stupefied by or as if by a series of blows to the head; punch-drunk.

“she’s a bit slaphappy after such a narrow escape”

synonyms: dazed, stupefied, punch-drunk, unsteady, wobbly

“she’s a bit slaphappy after such a narrow escape”

 

This peculiar turn of phrase seems all too apt to the decision from the Second Appellate District, Division 4, Workman v. Colichman.  Maybe Anti-SLAPP happy is more accurate. The defendant’s lawyers must be a a little dazed by the being referred to the State Bar of California by the Court of Appeal on top of sanctions of $35,985.00 to be paid to Workman, and $8,500.00 to the Court for their poorly thought out anti-SLAPP motion.  The Court found that motion completely frivolous and intended only for delay.

The fact that the Court took 40 pages to get to that result should be duly noted before concluding that the lawyer’s conduct in this case is culpable.  What does the Big Book of Rules say?

California Rule of Professional Conduct 3.1 Meritorious Claims and Contentions (former Rule 3-200)

(a) A lawyer shall not:  (1) bring  or  continue  an  action,  conduct  a  defense,  assert  a  position  in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or (2) present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of the existing law.

California Rule of Professional Conduct 3.2 Delay of Litigation

In representing a client, a lawyer shall not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense.

New Rule 3.1 is identical to the former Rule, but new Rule 3.2 is entirely new and extends the playing field for possible disciplinary action. Lack of probable cause and a malicious purpose might be difficult to prove; after all, weren’t these lawyers required to raise every possible gambit in the zealous representation of their client. But the new Rule makes merely using means that have no “substantial” purpose other than to prolong the proceeding or cause needless expense.

The Court found:

… the evidence that the anti-SLAPP motion was filed for purposes of delay was both persuasive and unopposed. First, defendants requested multiple extensions to respond to the Complaint, stating that they were interested in mediation. However, after taking advantage of those delays, they cancelled the mediation.  Second, the anti-SLAPP motion was not filed until September 14, 2017—the very last day allowed under the stipulation, and four months after defendants were served with the complaint in May 2017.  Pursuant to section 425.16, subdivision (f), a “special motion may be filed within 60 days of the service of the complaint,” unless the court allows it to be filed later.  The trial court noted that the motion may have been untimely, but it did not deny the motion on that basis.  Third, Workman submitted additional evidence that defendants were not cooperating in moving the litigation forward, such as causing long delays in communication and scheduling the mediation.  By contrast, after the anti-SLAPP motion was denied on October 18, 2017, defendants quickly filed their notice of appeal on October 24, and filed a notice of stay shortly thereafter. [¶]Defendants made no effort to contradict this evidence. … Defendants simply ignored this evidence and argument, both in the trial court and on appeal.

Slip opinion at page 26.  I don’t generally quote Rick Perry but …oops!

The saving grace may be that Rule 3.2 did not take effect until after the anti-SLAPP motion had been filed.  While the Rules are not retroactive in their application, the existence of new Rule 3.2 might effect the disciplinary counsel’s analysis under former Rule 3-200.

And the lesson for the future should be clear.  Somebody at some point is going to be disciplined for violating Rule 3.2 while thinking that this is just business as usual.

First Returns from State Bar Fingerprinting: Mostly Misdemeanors and Probably Many DUIs

The first returns are in on the State Bar’s project to cross-check attorney fingerprints against criminal records,  well summarized by Lyle Moran in his Above The Law post.  To date, the fingerprinting cross-checks have yielded 2,200 unreported lawyer convictions, including 20 felony convictions.  Felony convictions are required to be self-reported under Business and Professions Code section 6068(o)(5); some misdemeanor convictions must also be reported, those where a “client of the attorney was the victim, or a necessary element of which, as determined by the statutory or common law definition of the misdemeanor, involves improper conduct of an attorney, including dishonesty or other moral turpitude…”  No breakdown yet on how many of 2,180 misdemeanors were matters that were required to be self-reported.  The prosecution agencies are required to report criminal matters under Business and Professions Code section 6101(b). Sometimes that occurs because they never learn that the defendant is an lawyer; sometimes they are apparently unaware of the statutory requirement, likely bureacratic negligence. It is still early in the process to know how many serious crimes the fingerprinting dragnet will uncover but the majority of them will probably turn out to be first time and only time DUIs.

Traditionally, such crimes were given a pass by the Office of Chief Trial Counsel; lately some of them have merited resource letters and information on the State Bar’s Lawyer Assistance Program. A few with high BAC have been pursued in State Bar Court. Both the Office of Chief Trial Counsel and the State Bar Court are notably less tolerant of alcohol related criminal conduct, a trend highlighted by the decision In the Matter of Guillory (Review Dept. 2015) 5 Cal. State Bar Ct. Rptr.__ , where the respondent was disbarred after four DUI convictions.  The Court distinguished its earlier decision in In the Matter of Anderson (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 208, a case where it found that the circumstances surrounding multiple misdemeanor DUI convictions did not involve moral turpitude.  A recent Hearing Department decision in a DUI case noted that society has become more intolerant of drunk driving since the Supreme Court decided a public reproval was sufficent for a second DUI in In Re Kelley (1990) 52 Cal.3d 487, although it found no moral turpitude.

Lawyers who have been foolish enough to drive while intoxicated may not always get a pass from the Office of Chief Trial Counsel.  In its robust new (?) role as police agency, it is moving in that direction. They may soon be seeking reproval level discipline even on a first time DUI, with harsher discipline including actual suspension, for the second.  Now, more than an ever, a DUI is problem a lawyer can’t afford.

Serious felony crimes will take priority, as these 20 already have.  As for the rest, the list will be triagged with recent crimes probably gathering more attention.  Court files may not be availble in older cases and the State Bar may have to investigate those it chooses as self initiated State Bar Investigations following the “original” discipline path, not the criminal conviction path charted by Business and Professions Code sections 6101 and 6102.

At the end of the day, the great fingerprinting dragnet may turn out to be much less of a big deal discipline-wise, except, of course, to the attorneys who will be disciplined.