Smart Got: Disbarment for Felony Conviction for Forceful Assault Now Precedent

The Review Department of the State Bar Court has ordered publication of its April 10, 2020, opinion In the Matter of Smart, case no. 17-C-03687.  It upheld the hearing judge’s recommendation of disbarment.  Smart plead guilty to felony charges of violating Penal Code section 245(a)(4) (assault with force likely to produce great bodily injury), and Penal Code section 246.3(a) (discharging firearm with gross negligence. The hearing judge found the circumstances surrounding the crimes involved moral turpitude and that Smart had failed to demonstrate the compelling mitigation necessary to avoid disbarment under Standard 2.15(b).

Publication of Smart now makes it a citeable precedent in State Bar Court (Rule of Procedure 5.159).  The State Bar’s discipline office (the Office of Chief Trial Counsel  (OCTC)) asked for publication and now that they have got Smart, they will make liberal use of it in arguing for high levels of discipline in any case remotely close to its facts.  How effective it is as precedent is debatable; on levels of discipline, as opposed to procedural and other issues, the key yardstick is a “balanced consideration of all relevant factors…including factors particular to the offense and the offender” Howard v. State Bar (1990) 51 Cal.3d 215, 221–22; In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 980, 993.  The facts of Smart are extreme; so is the result.  It has too often been said that when the tool you have is a hammer, every problem looks like a nail.  The is a relative lack of citeable case law on the appropriate discipline for crimes involving assaultive behavior that Smart helps to fill but it doesn’t help establish what the discipline should be for a case less far along the crazy continuum, so it isn’t very helpful.  Nonetheless, it will be cited often, much like In the Matter of Guillory has become a standard reference in OCTC argument on DUI cases.  Guillory is a disbarment case involving serial misdemeanor drunk driving over a period of years by a former Deputy District Attorney who attempted to use his status to evade arrest and prosecution.  Extreme facts, extreme result.

Attorney discipline resulting from criminal convictions has gotten more attention lately because of the State Bar’s fingerprinting snafu that caused all California lawyers to have to submit fingerprints again.  This has resulted in a lot more criminal conviction proceedings in State Bar Court.  Many of those are DUI cases that were never reported as required by the criminal prosecutor (Bus. & Code section 6101(b).) Some of them are many years old.  Precedents like Smart and Gulllory can fuel a tendency to case every criminal conviction in the worse possible light. So far, in my view, the State Bar Court has continued to honor the Supreme Court’s standard, that appropriate discipline is a balanced consideration of all relevant factors, including those particular to the offense and the offender.  After all, it is precedent.

Nguyen v Ford: The Long Goodbye Gets a Little Shorter

 

Nguyen v. Ford (Sixth App. Dist., case no H046809, filed 4/24/20, published 5/13/20) addresses tolling under the legal malpractice statute of limitations, specifically Code of Civil Procedure section 340.6(a)(2) which provides that  the limitations period is tolled while “the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”  Nguyen hired Ford to pursue a discrimination cause of action against her former employer. They lost in Federal District Court.  Nguyen then executed a new fee agreement for Ford’s services in appealing that ruling in the Ninth Circuit.  During the course of the appeal, the attorney-client relationship broke down and Ford filed a successful motion to withdraw from Nguyen’s representation in the appellate court, granted in April 2015.  Nguyen hired new appellate counsel, but to no avail, the Ninth Circuit upholding the dismissal of her case in May 2018.  Six months later she filed a legal malpractice action against Ford.

Nguyen argued that, although Ford stopped representing her in the appeal in April 2015, she never withdrew from representing her in the Federal District court, thus tolling the legal malpractice period of limitations until her action was dismissed in May 2018.  The Sixth District disagreed.  They found that formal withdrawal is not required to end the tolling provision for continuous representation.

“In addition, the inquiry into when representation has terminated does not focus on the client’s subjective beliefs about whether the attorney continues to represent him or her in the matter. Instead, the test is objective and focuses on the client’s reasonable expectations in light of the particular facts of the attorney-client relationship. “In deciding whether an attorney continues to represent a client, we do not focus ‘ “on the client’s subjective beliefs” ’; instead, we objectively examine “evidence of an ongoing mutual relationship and of activities in furtherance of the relationship.”’ [citations]. Representation ends “ ‘ “when the client actually has or reasonably should have no expectation that the attorney will provide further legal services.  [citation]  In other words, tolling under the continuous representation exception ends when “ ‘ “a client has no reasonable expectation that the attorney will provide further legal services.”

Nguyen, slip opinion at 11.  Even if you regard the District Court proceeding and the Appeal as two separate representations, Nguyen could not have had a reasonable expectation that Ford someone continued to represent her in the District Court, given that Ford had served with notice that her motion to withdrawal in the appeal had been granted, a notice of lien by her “former attorney”, and even a notice of withdrawal in the District Court action, all in April 2015!

Nguyen also tried to argue that her breach of fiduciary duty claim was not barred by section 340.6.  The Sixth District noted that section 340.6 applies to the provision of professional services, not just legal services and that Nguyen provided no evidence that the breach occurred other than in the provision of professional services.

The Nguyen case has application even in contexts outside legal malpractice. Not the least is the rule of limitation in disciplinary proceedings, State Bar Rule of Procedure 5.21, which contains a similar tolling provision while the attorney represents the complaining witness.  It is also relevant for the application of Rules of Professional Conduct, such as Rule 1.8.1, which governs business transactions with current clients.

Notwithstanding Nguyen, giving the former client explicit notice that the relationship has ended is still a sound risk management tool.

 

Hush Agreements on State Bar Complaints

 

 

Recently amended AB 3362 is notable for the fact that it reduces State Bar licensing fees (“dues” no longer) by a munificent $34.00.  But a recent amendment also shines a light on a statutory provision often overlooked, often to a lawyer’s sorrow: Business and Professions Code section 6090.5, which addresses what might be called a State Bar “hush” or non-disclosure agreement.  Here is redlined text, showing the current statute and what the amendment would change:

 (a) It is cause for suspension, disbarment, or other discipline for any licensee, whether as a party or as an attorney for a party, to agree  acting on their own behalf or on behalf of someone else, whether or not in the context of litigation to solicit, agree,  or seek agreement, that:
(1) The professional misconduct  Misconduct  or the terms of a settlement of a claim for professional  misconduct shall not be reported to the State Bar.
(2) The plaintiff A complainant  shall withdraw a disciplinary complaint or shall not cooperate with the investigation or prosecution conducted by the State Bar.
(3) The record of any civil action for professional misconduct  action or proceeding  shall be sealed from review by the State Bar.
(b) This section applies to all settlements, whether made before or after the commencement  agreements or attempts to seek agreements, irrespective of the commencement or settlement  of a civil action.
The statute, first passed in the great wave of disciplinary reform of the mid-1980s ((Sen. Bill No. 1569 (1985–1986 Reg. Sess.))means to facilitate the public policy of that the State Bar’s discipline prosecutor should be made aware of potential attorney misconduct. The statute is broad, forbidding even seeking such an agreement as well as making one.  The amendments are mostly intended to clarify the statute, including clarifying that someone acting on the client’s behalf can violate the rule.  The one substantive change is changing replacing “plaintiff” with “complainant” correcting language that has been puzzling for over thirty years.  This hasn’t prevented the statute from resulting in discipline even where the complainant was not a “plaintiff” in any pending actions (see In the Matter of Brockway (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr. 944, 2006 WL 1360438.
In an unpublished Review Department decision (In the Matter of Karnazes, State Bar Court case no.10–O–00334, filed 1/2/14. 2014 WL 232500), the following “non-disparagement clause” agreed to in a civil settlement filed after a State Bar complaint had been filed, was found to violate 6090.5:
‘The Parties agree that in the event of any inquiry regarding this former dispute with the other party, they shall state that all of Zachary’s claims have been resolved and that he is not at liberty to discuss the terms of that resolution. Zachary further agrees not to disparage [Karnazes], her business, or any of her officers or employees.”’

Karnazes involved a different but not unique set of facts involving “serious overreaching of the attorney-client relationship under the guise of parental concern. Respondent Elizabeth M. Barnson Karnazes used the legal system to further her desire to control her adult son, who was also her client. In doing so, she lost sight of her ethical obligations and committed serious misconduct, including misappropriating over $57,000 of his settlement funds through conversion, commingling over $100,000 of her personal funds with his, and filing a lawsuit directly adverse to him. After her son filed a complaint with the State Bar’s Office of the Chief Trial Counsel (State Bar), Karnazes compounded her misconduct by conditioning the release of his funds on his agreement not to cooperate with the State Bar’s investigation. In the end, Karnazes withheld her son’s settlement funds for more than three years and released them only four days before her disciplinary trial.”

Karnazes, slip opinion at page 1. The attorney was disbarred in California and subsequently disbarred in New York on reciprocal discipline.
COPRAC formal ethics opinion 2012-185 addresses violations of section 6090.5 and interpreted the statute broadly, concluding:
Business and Professions Code section 6090.5 bars an attorney’s attempt, in settling a dispute with his or her client, to seek or obtain a client’s oral or written agreement not to make a State Bar complaint. Section 6090.5 may also prohibit a lawyer from seeking representations of the client’s intentions or actions regarding filing a complaint with the State Bar. Even a simple contractual factual recitation that the client has not yet made a State Bar complaint in the past may be an ethical violation since it could produce a chilling effect on the client’s future actions. Once a lawyer seeks such an oral or written agreement, the withdrawal of that request will not cure the ethical violation.
The ethics opinion suggests that the actual language in the proposed hush agreement is less important than whether a “chilling effect” is intended.  For this reasons, creative “work arounds” to evade section 6090.5 are not wise.
Is it an ethics rules or a regulatory rule?  That is an interesting question but ultimately about as relevant as the question of whether Certs is a breath mint or a candy mint, because you can be disciplined for violating it, and the statute itself prescribes substantial discipline: suspension or disbarment.  Moreover, it is buried in a Business & Professions Code, a place many lawyers, otherwise familiar with the Rules of Professional Conduct, overlook, a trap for the unwary.

A Rainy Night In Georgia Legal Ethics

A black man is murdered. Two white suspects tell the police that the killing was self-defense. The police do not pursue the investigation.  Later, video is leaked to the news media that appears to show that the murder was not self-defense, that the murdered man was defending himself against one of the shotgun-wielding suspects.  The video provokes outrage.  The suspects are arrested and charged with murder, assault and assisting a felony.

And the source of the leaked video – a lawyer that the suspects had consulted with.

It sounds like a law school hypothetical but it isn’t.  It is the Ahmaud Arbery case. It presents one of the most difficult and disturbing problems in legal ethics.

Lawyers owe a duty of loyalty to their clients, including a duty to not to disclose confidential information that would be harmful to the client’s interests or embarrassing to the client.  That duty is also owed to prospective clients, even those who never ultimately employ the lawyers, on the theory that it encourages prospective clients to be candid with their prospective lawyer, to give the prospective lawyer all the information the lawyer needs to evaluate the case.  American Bar Association (ABA) Model Rule 1.18 reflects this tenet of legal ethics:

(a) A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client.

(b) Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

Every state has now adopted some version of the Model Rules, including Model Rule 1.18, with every state making its own changes.  Even California, the last holdout, has now adopted its own California customized version of the Model Rules, including its own Rule 1.18.  Georgia has not adopted Rule 1.18 but does have a comment to its confidentiality rule 1.6 that covers the same ground:

[4A] Information gained in the professional relationship includes information gained from a person (prospective client) who discusses the possibility of forming a client-lawyer relationship with respect to a matter. Even when no client-lawyer relationship ensues, the restrictions and exceptions of these rules as to use or revelation of the information apply, e.g. Rules 1.9 and 1.10

According to the New York Times:

The lawyer, Alan Tucker, said in an interview on Friday that the video had come from the cellphone of a man who had filmed the episode and that he later gave the footage to the radio station. Mr. Tucker’s role was confirmed by Scott Ryfun, who oversees the station’s programming.

Asked why he had leaked the video, Mr. Tucker said he had wanted to dispel rumors that he said had fueled tension in the community. “It wasn’t two men with a Confederate flag in the back of a truck going down the road and shooting a jogger in the back,” Mr. Tucker said.

“It got the truth out there as to what you could see,” he added. “My purpose was not to exonerate them or convict them.”

But for the consultation with suspects, Tucker would not have obtained the video. If Tucker had not leaked the video, murderers might have gotten away their crime.  But it looks like Tucker violated important principles of legal ethics, loyalty and the preservation of confidentiality.  Does loyalty to the community trump loyalty to the client?  Should the fact that he might have prevented a miscarriage of justice mitigate any violation?

Abbe Smith, in her law review article Telling Stories and Keeping Secrets  8 UDC/DCSL L. Rev. 255-268 (2005), came to this conclusion:

It could be that, in the end, I don’t have much faith in lawyers. I don’t want them to exercise their own moral discretion about whether to disclose client confidences. I don’t want to give lawyers the authority to determine when it is in the public interest to divulge confidences, even if they were allowed to do so only under limited circumstances, such as “where necessary to avoid ‘substantial injustice.'” I worry about lawyers acting as a “self-appointed moral elite,”‘ over-looking or overriding long-standing ethical standards in order to advance their own views of justice.

When a lawyer is confronted with the hardest legal ethics questions in concrete terms, they churn in the lawyer’s conscience, like a dark night in a Georgia thunderstorm. As they should.  But in the end, I agree with Smith. I can admire the “cause” lawyer, who thinks the cause trumps everything else, but only to a degree. In the end, we are have taken an oath to support the law and the ethical rules, and we have to pay the price for our choice.

State Bar Sues LegalMatch.com for Operating Uncertified Legal Referral Service

The State Bar of California has filed an action in San Francisco Superior Court alleging that LegalMatch.com is operating as an uncertified legal referral service.

This comes after the California Supreme Court’s denial of LegalMatch.com’s petition for review of the Court of Appeal decision in Jackson v. LegalMatch.com on March 11, 2020.

It also comes after LegalMatch.com has been operating for more than 20 years.  After a brief flurry of activity in the late 1990’s, the State Bar ignored uncertified legal referral services and LegalMatch.com and many similar businesses have operated with impunity.  No longer.  Mr. Jackson and the Court of Appeal have forced the State Bar’s hand, with some nudging from the Supreme Court.

Attached to the complaint as Exhibit A is a letter to LegalMatch.com dated March 31, 2020, from Alison Lippa, Assistant General Counsel of the State Bar.  It details LegalMatch.com’s failed efforts to submit an application to become a certified legal service after the Jackon decision came down, efforts that failed in part because of the requirement that lawyers who participate in a certified legal referral service have malpractice insurance.  It also references an earlier exchange of correspondence between Leah Wilson, former Executive Director of the State Bar, and LegalMatch.com, where LegalMath.com sought assurances that lawyers who accepted referrals would not be subject to State Bar discipline.  Ms. Wilson, pointedly, could offer no such assurance.

Lawyers who accept referrals from an uncertified legal referral service could be subject to discipline under several legal theories.  Business and Professions Code section 6155(a) says that no lawyer shall accept referrals from an uncertified legal referral service.  A violation of that section could be prosecuted as a violation of Business and Professions Code section 6068(a), the “gateway” statute that says that it is an attorney’s duty to support the law (see In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476.)  Such a referral might also violate Business and Professions Code section 6152, which prohibits capping, again through 6068(a) gateway.  This stature also makes capping a crime.  Finally, Rule of Professional Conduct 7.2(b) prohibits payment “for the purpose of recommending or securing the services of the lawyer or the lawyer’s law firm” subject to an explicit exception for payment to a certified legal referral service (Rule 7.2(b)(2).)

Will the State Bar’s Office of Chief Trial Counsel (OCTC) actually prosecute lawyers for participating in uncertified legal referral services?

It did in the 1990s;  those cases were all settled for reproval level discipline, all but one private reprovals.

It may again.  It can’t be ruled out, especially given the recent zeal displayed by OCTC in seemingly trivial matters.  In the words of one State Bar discipline defense attorney, “no fish is too small to fry.”  Perhaps they will merely rely on the in terrorem effect of the recently filed action against LegalMatch.com.  OCTC is largely moved by complaints and few, if any, complaints are made that involve uncertified legal referral services. But OCTC is not limited to complaints and can open its own investigations, dubbed SBIs, for “State Bar Investigations.”  Discovery in the LegalMatch.com action might yield a list of potential targets and a few might be prosecuted, just to put some teeth into that in terrorem effect.

In the meantime, lawyers who use these services are assuming the risk, a risk difficult to quantify.