David C. Carr ~ Ethics Lawyer
David C. Carr, an attorney in private practice in San Diego, California, specializes in ethics advice to lawyers, California State Bar discipline defense, and attorney licensing.
Mr. Carr is a 1986 graduate of Loyola Law School in Los Angeles. Following several years of practice in commercial law and business litigation, Mr. Carr joined the State Bar of California as a staff attorney in 1989, where he served as a staff attorney, a discipline prosecutor and a manager in discipline enforcement office before returning to private practice in 2001.
Mr. Carr is a member of the San Diego County Bar Association, where he is active on the Legal Ethics Committee. He is a member of the Association of Professional Responsibility Lawyers (APRL), the ABA Center for Professional Responsibility, and the Association of Discipline Defense Counsel (ADDC), where he served as president from 2008 through 2011. He is also a member of the State Bar's Standing Committee on Professional Responsibility and Conduct (COPRAC) for the 2018-2021 term. Mr. Carr is an adjunct faculty member at Thomas Jefferson School of Law, where he has taught professional responsibility.
Hassett v. Olson, Third App. Dist., case no.C092212, filed 4/20/22, modified and certified for publication 4/13/22. Stephen Baily, while a Superior Court judge in El Dorado County, presided over litigating and issued orders relating to the enforceability of one Cody Bass’s options to purchase two South Lake Tahoe properties. Baily left the bench. He was then employed as co-counsel the trustees of the one of the properties, Dastur, in litigation brought by Hassett, who claimed ownership of the properties. Baily sent a letter to the assigned Judge of the El Dorado Superior Court in his capacity as counsel for Dastur citing his former status as a judge and their social relationship and suggesting the entire El Dorado Superior Court recuse itself. She did and the case was transferred to a Sacramento County judge. Hassett brought a motion to disqualify Baily, citing Rule of Professional Conduct 1.12, which says:
a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, judicial staff attorney or law clerk to such a person* or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed written consent.
In support of his motion, Hassett attached Baily’s letter. The trial court granted the motion, based on the inherent power of the court (codified in Code of Civil Procedure section 128, subdivision (a)(5)) to control proceedings in the furtherance of justice. The court cited an “appearance of impropriety”, as well as a violation of Rule 1.12. The definition of “matter” in Rule 1.12 was broad enough to include Hassett’s action, even though he was not a party to the prior actions where Baily was directly involved, and Baily was found to have substantially participated in the matter. Finally, Baily’s law firm was also disqualified as there was no showing it was screened from participation as required by Rule 1.12.
The Court of Appeal affirmed. Hassett had standing, despite the fact that he was not a party to the prior actions. It was not necessary to show that Baily possessed confidential information under Rule 1.12. Matter and case are not synonymous, as shown by comment 1 to Rule 1.12. Moreover, California Rule 1.7(e) provides a broad definition that is similar to ABA Model Rule 1.11, which governs the same principles for government lawyers discussed in ABA Model Rule 1.12, the basis for the California rule.
For purposes of this rule, “matter” includes any judicial or other proceeding, application, request for a ruling or other determination, contract, transaction, claim, controversy, investigation, charge, accusation, arrest, or other deliberation, decision, or action that is focused on the interests of specific persons,* or a discrete and identifiable class of persons
The Court of Appeal concluded that no abuse of discretion by the trial court had been shown.
Cases interpreting the new Rules of Professional Conduct are still rare and this well-reasoned opinion is a worthy addition to prior California cases that reached similar conclusions without the benefit of Rule 1.12
There is a lot of information on the State Bar of California website. But one thing you will not find. You won’t find decisions from the Hearing Department of the State Bar Court.
The State Bar Court page has a link to Hearing Department decisions. But you won’t find any after January 2019. That is, you won’t find recent ones. Instead, you will see this:
Hearing Department decisions are accessible from April 2014 through January 2019, at which point they vanish. If you want to see a Hearing Department decision after January 2019, you will have to know the specific case number or Respondent’s name.
Not coincidently, January 2019 was when the State Bar’s new case management system, aptly named Odyssey, came online. The same Odyssey implicated in the recent disclosure of confidential information now conceded to be the result of a flaw in the software provided by Tyler Technologies, the State Bar vendor, and not the result of some nefarious hack.
Long ago in the mists of history, longer even than the nine years Odysseus wandered on the wind dark ocean sea, the Association of Discipline Defense Counsel (ADDC) asked then Chief Trial Counsel James Towery (now Judge Towery) to provide copies of the Hearing Department decisions. The reason was to educate defense counsel about what was happening in State Bar Court to better advise their clients on what to expect in State Bar Court litigation and obtain knowledge that might lead to better trials and more settlements. Only about 50% of respondents are represented by counsel in the State Bar Court and not all of them by members of the ADDC. Only two institutions are privy to the complete picture of what goes on in the State Bar Court, the Court itself and the prosecutor, the Office of Chief Trial Counsel (OCTC). Discipline defense counsel are like the blind men in the parable: a trunk here, a leg there but no overall appreciation for what the elephant was. Judge Towery readily agreed.
Later on, in 2014, the State Bar Court began publishing links to a monthly list of decisions from the Hearing Department, a rather lazy solution compared to the full access the State Bar Court affords to decisions published and unpublished from the Review Department. But a better solution in terms of allowing access to the public at large access and understanding of the work of the Hearing Department. And, most importantly, a solution that allowed access to the entire corpus of that work, the cases where OCTC was successful as well as the cases where OCTC was not successful, either because the recommended discipline was less than that advocated by OCTC or because OCTC failed to prove any part of its case, resulting in a dismissal of charges.
Transparency and the public’s right to know have been trumpeted by the State Bar in advocating many policies, including posting the notices of disciplinary charges on the State Bar’s website before those charges are proven and the posting of the Consumer Alert badges in ever-expanding categories of cases, most recently, cases involving felony convictions.
These measures serve to protect the public, it is argued, by alerting consumers of legal services that the attorney that they might be thinking of hiring presents a potential danger. But it also serves the State Bar’s purpose to assure the public and the profession that it is zealously working to protect them. For the same reasons, attorneys who have been publicly disciplined are subject to publicity regarding their discipline, including inclusion in the Discipline Reports published in traditional legal newspapers and, more recently, postings on LinkedIn.
Discipline defense counsel know they do because we often achieve good results for our clients at trial, sometimes including complete dismissals. But the second purpose, the public relations purpose, isn’t served by disseminating information regarding OCTC’s failures. Finding information on the cases that OCTC loses, including how far they fell short and why is difficult.
But the overall picture is murky. The State Bar does publish statistics in the Annual Discipline Report but no detailed information as to why cases filed in State Bar Court are resolved with no action. For instance, the Annual Discipline Report for 2020 contains an entry for cases closed by the State Bar Court with no action, with an explanatory footnote stating that this could occur for many reasons, including “(1) respondent was disbarred in another matter; (2) respondent was ordered inactive pursuant to Business and Professions Code section 6007(b); (3) respondent’s death, shortly before or after dismissal; (4) respondent’s resignation; (5) dismissal by OCTC; and (6) dismissal by State Bar Court.”
As you can see, those numbers are not broken down by the types listed in the footnote.
Moreover, while complete dismissals are relatively few, there are no statistics on the much larger number of cases where OCTC sought a higher level of discipline than was ultimately decided on by the Court. This information can only be understood by an examination of the decisions themselves.
When Odyssey went live in January 2019, we were told that it would lead to greater transparency because it would allow the publication of the entire State Bar Court docket in each case online. This is true but misleading. More information is not necessarily better information, and without access to all Hearing Department decisions in one place, it is impossible for outsiders to fully analyze just how well OCTC is doing, measured by the yardstick of success in State Bar Court. Undoubtedly, OCTC closely analyzes each Hearing Department decision to determine whether to appeal it to the Review Department.
This information should be easily obtainable. Yet efforts by defense counsel to obtain these decisions have so far met with no success. And because State Bar Court no longer publishes even links to the decisions, they remain hidden from public view, accessible only in the dockets of individual cases. This is odd given that Review Department decisions are easily accessible. Whatever the explanation, this is incompatible with a government agency that has made transparency and the public’s right to know a central argument for publicizing its work.
The California Supreme Court has denied the Office of Chief Trial Counsel’s petition for review in In the Matter of Respondent BB, as case discussed in a previous post Going To The Mountain, posted 2/20/22. BB involved a San Francisco public defender found of two counts of disrespect to the courts and one count for failure to obey a court order. The hearing judge determined an admonition was appropriate under the “unique circumstances” established at trial along with five circumstances in mitigation and only one in aggravation; OCTC had sought a 30 day actual suspension. The Review Department, and now the Supreme Court, upheld that disposition.
We are told that California Rules of Professional Conduct are rules for discipline. And yet there are many Rules of Professional Conduct that are never, as far as can be determined, formed the basis for any discipline. In fact, these Rules largely serve an advisory role, giving lawyers notice of what the expected norms of professional conduct are. This distinction is more explicitly spelled out in the American Bar Association Model Rules of Professional Conduct in the Preamble section 14: “The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s professional role.” But ultimately, it is the possibility of professional discipline that gives the Rule force.
A lawyer shall not:… (2) fail to disclose to the tribunal* legal authority in the controlling jurisdiction known* to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or knowingly* misquote to a tribunal* the language of a book, statute, decision or other authority
Rule 3.3(a)(2) was adopted in November 2018, part of the extensive revision of the California Rules of Professional Conduct to conform more closely to the American Bar Association Model Rules of Professional Conduct and adopts the text of Model Rule 3.3(a)(2), along with a second clause derived from former California Rule of Professional Conduct 5-200(c). Given the recent adoption of the Rule, it is not surprising that it has not been the object of any discipline enforcement. The model Rule, though, has been cited in the unpublished decision in Martin v. Stenger, a 2014 decision from the First Appellate Dist., Div. 2, (2014 WL 2211719).
Although California has not adopted the Model Rules, courts and [attorneys] find the rules … helpful and persuasive in situations where the [California rules] are unclear or inadequate.’ (1 Witkin, Cal. Procedure, supra, Attorneys, [§ 407, p. 521.] ) We are one of those courts. (See generally Fortune et al., Modern Litigation and Professional Responsibility Handbook (2001) § 8.5.1, pp. 329–330 [‘The obligation to disclose adverse legal authority is an aspect of the lawyer’s role as “officer of the court.” … lawyers should reveal cases and statutes of the controlling jurisdiction that the court needs to be aware of in order to intelligently rule on the matter. It is good ethics and good tactics to identify the adverse authorities, even though not directly adverse, and then argue why they are distinguishable or unsound. The court will appreciate the candor of the lawyer and will be more inclined to follow the lawyer’s argument’].)” We do not imply that either counsel acted knowingly or intended to mislead when they failed to cite Yang. We nevertheless remind counsel of their obligation.
Martin v. Stenger, unpublished slip opinion at pages 2-3
Williams involves a failure by counsel to cite what the Court of Appeal deemed controlling authority in the appeal, specifically case law finding the subject order not appealable. The decision reveals the frustration the Court of Appeal found with the lawyer’s response to the Court’s direction to submit a letter brief on the issue of whether Rule 3.3(a)(2) had been violated, frustration which led the Court of Appeal to make this a published decision with a stern warning:
An attorney who prosecutes an appeal while failing to cite known authority that this court has no jurisdiction to entertain it violates the attorney’s duty of candor (where the authority is not otherwise brought to the attention of the court by another party to the appeal). Any such future violation, in the view of this court, may warrant disciplinary review by the State Bar or other corrective action.
People v. Williams, slip opinion at page 14-15
In adopting much of the ABA Model Rules, California has taken many of their “constitutive and descriptive” precepts and made them enforceable through the disciplinary process. Of course, the California Rules of Professional Conduct, although emphasizing their provenance as discipline rules since their original adoption in 1928, have always contained a lot of similar material, especially after the California Rules were re-written in response to the ABA Code of Professional Responsibility in 1975. But the Big Stick is always present, and the current mood of the discipline enforcers in the Office of Chief Trial Counsel means the discipline can never be ruled out. California lawyers who have not read the latest revision of the Rules of Professional Conduct practice are at some risk. Just ask the Second District Court of Appeal.
The State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) has written a proposed ethics opinion on remote practice that is now out for public comment, formal opinion interim number 20-0004. The scope of the issues addressed by the opinion is broadly framed: “What are a California lawyer’s ethical duties when working remotely?” The opinion digest responds broadly:
Remote practice does not alter a lawyer’s ethical duties under the California
Rules of Professional Conduct and the State Bar Act. Managerial lawyers must
implement reasonable measures, policies, and practices to ensure continued
compliance with these rules in a remote working environment, with a particular
focus on the duties of confidentiality, technology competence, communication,
Proposed formal opinion 2020-0004
The impetus for the opinion, like other opinions regarding remote practice, over the last two years (ABA formal opinion 495, New Jersey opinion 59/742, District of Columbia opinion 24-20) is the widespread adoption of remote work during the pandemic. The transition to remote work is hardly new; it has been going on ever since advanced information technology made geography irrelevant around 1995. California was one of the first states to address the phenomenon in the seminal Birbrower case in 1998, albeit in dicta that was not really related to the facts of the case:
Our definition does not necessarily depend on or require the unlicensed lawyer’s physical presence in the state. Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive. For example, one may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means. Conversely, although we decline to provide a comprehensive list of what activities constitute sufficient contact with the state, we do reject the notion that a person automatically practices law “in California” whenever that person practices California law anywhere, or “virtually” enters the state by telephone, fax, e-mail, or satellite. (See e.g., Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 543, 86 Cal.Rptr. 673, 469 P.2d 353 (Baron ) [“practice law” does not encompass all professional activities].) Indeed, we disapprove Ring, supra, 70 P.2d 281, 26 Cal.App.2d Supp. 768, and its progeny to the extent the cases are inconsistent with our discussion. We must decide each case on its individual facts.
Birbrower, Montalbano, Condon & Frank v. Superior Ct. (1998) 17 Cal. 4th 119, 128–29
Since the case had to do with New York lawyers who were physically, not virtually, present in California, the rationale behind this dicta is difficult to discern on the surface. Some, including amicus counsel for the petitioner New York law firm, thought the case presented an opportunity to undermine the outdated patchwork of individual jurisdictions jealously protecting their turf, a position opposed by the amicus for the client trying to get out of paying their bill, the State Bar of California, who advocated for a traditional California protectionist approach ( I was present at the oral argument.) The Birbrower dicta, accurate as it was, probably created more confusion than insight.
The existing trend toward remote work accelerated, by necessity, during the pandemic, and even the State Bar of California was part of the trend. Once work becomes remote, it can become truly remote by moving beyond a state boundary line. Remote work raises a number of issues not directly connected with the multi-jurisdictional practice (MJP) problem. The problem is that licensure is still handled by that patchwork of jurisdictions long after this approach stopped making sense.
These non-MJP problems are well addressed by 2020-0004. But 2020-0004 says only this about the MJP problem:
California licensed lawyers practicing California law remotely in another state where they are not licensed should consult the multijurisdictional practice and unauthorized practice of law rules and authorities of the state where they are physically present.35 The ABA and some other state bar and local ethics committees have issued opinions regarding unauthorized practice of law considerations for attorneys remotely practicing the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted.
Proposed formal opinion 2020-0004, at page 7.
The Committee does helpfully attach a long footnote citing the many opinions from other jurisdictions that address remote practice, including MJP. But for lawyers licensed in other jurisdictions who are practicing remotely while in California, the Committee offers no guidance.
This is a big question. There are hundreds, perhaps thousands, of lawyers, admitted in other jurisdictions who are physically present in California and “virtually” practicing in their licensed jurisdictions to adopt the Birbrower language. The only guidance those lawyers have now is the limited guidance provided by California Rule of Professional Conduct 5.5(b): “A lawyer who is not admitted to practice law in California shall not: (1) except as authorized by these rules or other law, establish or maintain a resident office or other systematic or continuous presence in California for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in California.” Emphasis added.
What exactly does this language mean? Is practicing New York law for your New York clients from your home office in California a “systemic or continuous presence”? Can that lawyer use his residence address in California or establish a post office box in California for use in their “virtual practice” without “holding themselves out” as entitled to practice in California? Does this type of “virtual practice” violate their licensing jurisdiction’s version of ABA Model Rule 5.5(a)?: “A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.”
These are questions that need to be answered. But COPRAC is unable to. By direction of the Board of Governors (now Board of Trustees) in 1992, COPRAC cannot opine on questions involving the unauthorized practice of law. But if not COPRAC then who? Text or comments to Rule 5.5 could be added to clarify the meaning but in the normal course, those comments would be vetted through COPRAC. Would consideration of such clarifying language violate the Board’s directive? The Legislature could direct the State Bar to draft an amend Rule 5.5 or adopt a new Rule of Professional Conduct to submit to the California Supreme Court for adoption or a statute clarifying what constitutes the unauthorized practice of law. Given California’s protectionist proclivity, such Legislative activity seems very unlikely. There seems to be no procedural mechanism to directly request the Supreme Court to adopt new Rules of Professional Conduct.
So it appears that there is no way to get this question answered until some sweeping reform of multi-jurisdictional practice occurs to conform to reality. In the meantime, non-California licensed lawyers virtually practicing in California will continue a sort of shadow existence.
Some narrow issues were raised in the recent decision from the Fourth District of Court of Appeal, Division One, titled Shenefield v. Shenefield (case no. D078643, filed 2/24/22) and a bigger one as well.
The case involved a litigant in a marital dissolution matter who attached the confidential, court-ordered psychological evaluation undertaken during his spouse’s previous marital dissolution to a pleading filed by his lawyer. The spouse sought sanctions for violations of Family Code sections 3111, subdivision (d) and 3025.5, for unwarranted disclosure of the confidential custody evaluation. Following trial, the Court issued sanctions against the litigant in the amount of $10,000 and the litigant’s lawyer in the amount of $15,000. The trial court found that the litigant’s attorney was a ‘seasoned’ attorney who should have been aware of the Family Code statutes. She was reckless in filing the confidential and that she intended for the Court to rely on the confidential information from the prior, unrelated case. The lawyer challenged the sanction, arguing, among other things, that she was not a ‘party’ within the meaning of section 3111(d)(2). The Court of Appeal upheld the sanction, finding that California Rules of Court, rule 1.6(15), defines a “[p]arty” as “a person appearing in an action,” and it also notes that “party” “includes the party attorney of record.” The Court of Appeal also found no merit in the lawyer’s other arguments, that she was not afforded due process and that the opposing spouse had a duty to provide her the ‘safe harbor’ provided by Code of Civil Procedure section 128.7(c)(1) before moving for the sanction.
Good to know. But the bigger issue is highlighted in the part of the opinion that discusses an important piece of evidence at trial, a recording of a meeting between the litigants, Mark and Jennifer, and husband’s counsel. Jennifer did not have counsel.
On September 13, 2017, Mark pled guilty to violating Penal Code section 243, subdivision (e)(1), misdemeanor battery on a spouse. The Court issued a criminal protective order against Mark. The order contained the same terms as the restraining order, prohibiting Mark from contacting Jennifer or their child other than peacefully for visitation, and it authorized Jennifer to record any violations. Kovtun was Mark’s attorney of record in the criminal case. On September 28, 2017, Jennifer attended a meeting at Kovtun’s office with Mark and Kovtun. Jennifer recorded the meeting. During the course of the meeting, Kovtun told Jennifer she was a liar and a bad and unfit mother who was harmful to their child. When Jennifer said if Kovtun were not there, Mark would probably be beating her, Kovtun responded, “You know what? I would be.” Kovtun called Jennifer “nuts,” said Jennifer was “out of [her] mind,” commented that living with Jennifer was like dealing with a lunatic, and called Jennifer crazy. Mark berated Jennifer, telling her that he was going to take their child away and get full custody, directing Jennifer to stop crying, and admonishing her that if she loved him, Jennifer would sign a custody agreement that would give Mark 50 percent custody. Kovtun repeatedly supported Mark’s statements, commenting, “Yeah.” As a consequence of the September 28, 2017 meeting, Mark pled guilty to violating a court order (Pen. Code, § 166, subd. (c)(1)) in October 2018.
Shenefield, slip opinion filed 2/25/22 at page 23.
The trial court found that the recording did not violate Penal Code section 632 because it was authorized by the September 23, 2017, protective order. It relied on the recording to conclude that the lawyer was a seasoned family law lawyer and that she acted recklessly in allowing the confidential information from the prior custody evaluation to be filed. The Court of Appeal upheld those determinations.
Family law has always been difficult. Trends in society, the ongoing destruction of personal norms of appropriate behavior, the erosion of social trust, and the increased competition between lawyers for clients have made it more difficult. The lawyer-as-hired-gun meme still has currency, and it is often emphasized by lawyers themselves in their advertising, based on the idea that clients want aggressive lawyers. Many of my clients who are family law lawyers tell me that family law practice is uglier now than they ever seen it.
The ethical rules point in a different direction. Preamble 5 to the ABA Model Rules states that a “lawyer should use the law’s procedures only for legitimate purposes and not to harass or intimidate others.” California Rule of Professional Conduct 1.2.1 forbids a lawyer from counseling or assisting “a client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.” Business and Professions Code section 6068(f) says that it is the duty of an attorney to “advance no fact prejudicial to the honor or reputation of a party or witness unless required by the justice of the cause with which he or she is charged.” Subsection (g) says that a lawyer has a duty to “not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest.” California Rule of Professional Conduct 4.3 specifically addresses communication with unrepresented parties and states that a lawyer may not take advantage of an unrepresented party to stating or implying that he lawyer is disinterested and may not give an unrepresented party legal advice, where their interests conflict with the client, except the advice to obtain counsel. While not a binding rule, the State Bar of California Civility Guidelines state that “in family law proceedings an attorney should seek to reduce emotional tension and trauma and encourage the parties and attorneys to interact in a cooperative atmosphere, and keep the best interest of the children in mind. For example, a. An attorney should discourage and should not abet vindictive conduct. b. An attorney should treat all participants with courtesy and respect in order to minimize the emotional intensity of a family dispute.” Guideline 19.
No, all is not fair in love, war or the practice of law. They all have ethical rules that must be followed if we are to live in a world not governed by brute force.
Part of my daily routine is visiting the State Bar Court website to see if any new Review Department decisions have arrived (https://www.statebarcourt.ca.gov/Review-Department-Dispositions). The State Bar Court is an administrative law court within the judicial branch that adjudicates discipline and other attorney regulation matters. The Review Department is the appellate court in this system; its three judges hear appeals from the five judges in the Hearing Department and have original jurisdiction on some matters.
The State Bar Court has been created by the Legislature but it had been described as the administrative arm of the California Supreme Court for the purposes of attorney regulation, chiefly discipline and licensure. For that reason, most decisions of the State Bar Court are couched as recommendations to the Supreme Court, although the State Bar Court is empowered by statute to issue reprovals (Bus. & Prof. Code section 6077). In the normal course, discipline recommendations go up the mountain from both departments of the State Bar Court and are almost always approved; to my knowledge, in the 33 years I have been involved in the discipline system, only one discipline recommendation has been disapproved.
But there is another route to review by the high Court and that is filing a petition for review of a State Bar Court (Cal. Rule Ct. 9.13 generally with special requirements for the Office of Chief Trial Counsel (OCTC) in Cal. Rule Ct. 9.14.) This route requires exhaustion of remedies in State Bar Court by requesting review from the Review Department first (Cal. Rule Ct. 9.13(e)(1).) It is also completely within the discretion of the Supreme Court. In In Re Rose(2000) 22 Cal. 4th 437, the Court held, over the dissents of Justices Kennard and Brown, that the Court was not constitutionally required to hear a petition for review from a respondent. Since the State Bar Court in its current full-time professional form was created in 1989 and the “finality” rules in Title 9 of the California Rules of Court were enacted in 1992, the Court has taken up petitions from only a handful of respondents and in all but one of those matters (In Re Morse (1995) 11 Cal. 4th 190), the respondent has been disbarred, as was Mr. Rose. OCTC has not done much better; only one petition for review has been accepted and resulted in a published discipline opinion, In the Matter of Grant (2014) 58 Cal.4th 469. That case resulted in the State Bar Court’s recommendation of two years actual suspension increased to disbarment. It is hard not to form the impression that the Supreme Court is only interested in taking up discipline cases for full review when the discipline is perceived as too lenient or some legal issue, such as the scope of the summary disbarment statute (see In re Lesansky (2001) 25 Cal. 4th 12), needs clarifying.
The lack of Supreme Court interest is by design. If you pick up and leaf through the California Reports from the 1970s and 1980s (I know: how quaint) you will be astonished at the amount of dead trees devoted to attorney discipline matters. The explosive growth of the legal profession in those decades dramatically increased the number of discipline matters and the pre-Rose Court still felt an obligation to take them up. Part of the reason for creating a full-time professional State Bar Court with the ability to publish its own decisions as guiding precedent (at least in State Bar Court) was to relieve the high court of this responsibility. And it worked. The number of published discipline cases from the California Supreme Court since 1992 will be accommodated by your two hands.
Petitions for review still get filed, of course. The State Bar Court website now accounts for them with a new category “Opinions Designated for Publication” designed for opinions that have been published under State Bar Rule of Procedure 5.162, thus potentially citable but that are the subject of a pending Supreme Court petition. And, in a lovely display of symmetry, there are two, one a petition filed by a respondent (In the Matter of Shkolnikove) and one a petition filed by the OCTC (In the Matter of BB.) Both cases contain interesting issues that might actually tempt the Supreme Court to fully consider these cases. In Shkolnikove, the Review Department increased the recommended level of discipline from 45 days actual suspension to six months, reversing the Hearing Judge’s determination that Mr. Shkolnikove was a more credible witness than his former client Herrera, in spite of the long-standing principle that a Hearing Judge’s determination of credibility is entitled to great deference. In BB, the Review Department upheld the Hearing Department’s imposition of an admonition, a non-disciplinary disposition, in a case that involved a San Francisco Public Defender found to have demonstrated disrespect for the court (Bus. & Prof. Code section 6068(b)) and to have disobeyed a court order (Bus. & Prof. Code section 6103) in interfering with the arrest of his disruptive client in court. These offenses typically result in actual suspension and OCTC sought 30 days actual suspension at trial and before the Review Department.
Of course, it might be wishful thinking. I have long felt that the Supreme Court withdrawal from the discipline process in the 1990s was not a positive development and although they gotten more involved in recent years on the administrative side, that has not thus far translated to the litigation side. New Supreme Court case law in my area of jurisprudence is a rare treat. One can dream.
The Fourth District Court of Appeals, Division 3, has a new opinion, Falcon Brands v. Mousavi & Lee L.L.P. (case no. G059477, filed 1/27/22), that adds to our knowledge of one of the more opaque issues in legal ethics: when does a lawyer’s demands to settle become extortion?
The leading case in California is the almost legendary decision Flately v. Mauro (2006) 39 Cal.4th 299. Michael Flately was an Irish entertainer, famed as the “Lord of the Dance” for his shows featuring Irish traditional dance. D. Dean Mauro was an Illinois attorney who represented a woman who alleged that Flately raped her in a Las Vegas Hotel. Among other things, Mauro sent Flatley a letter demanding a settlement of $100 million dollars and threatening to do a number of things as described by the Supreme Court:
“The first paragraph of the third page of Mauro’s letter refers Flatley to a “settlement of $100,000,000.00” awarded as punitive damages in an unidentified case. The second full paragraph then states that an investigation into Flatley’s assets for purposes of determining an appropriate award of punitive damages will require “an in-depth investigation” and that any information would then “BECOME A MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH THE COURT, as it will be part of the bases of several of our expert’s [sic ] testimony.” The third paragraph states in its entirety: ”Any and all information, including Immigration, Social Security Issuances and Use, and I.R.S. and various State Tax Levies and information will be exposed. We are positive the media worldwide will enjoy what they find.” After a paragraph describing the potential testimony of two other experts, John Lombardi and David K. Hirshey, apparently with respect to the failure of the Las Vegas hotel in which the alleged rape occurred to “provide requisite safeguards for our client,” the fifth paragraph again warns that “all pertinent information and documentation, if in violation of any U.S. Federal, Immigration, I.R.S., S.S. Admin., U.S. State, Local, Commonwealth U.K., or International Laws, shall immediately [be] turned over to any and all appropriate authorities.” The final paragraph warns that once the lawsuit is filed additional causes of action “shall arise” including “Defamatory comments, Civil Conspiracy, Reckless Supervision” which are “just the beginning” and that “ample evidence” exists “to prove each and every element for all these additional causes of action. Again, these actions allow for Punitive Damages.”
At the top of the final page of the letter is the caption: ”FIRST & FINAL TIME-LIMIT SETTLEMENT DEMAND.” Beneath it, a paragraph warns that there shall be “no continuances nor any delays. If we do not hear from you, then we shall know you are not interested in amicably resolving this claim, and we shall immediately file suit.” At the bottom of the page, beneath Mauro’s signature, a final paragraph warns Flatley that, along with the filing of suit, press releases will be disseminated to various media sources, including but not limited to “Fox News Chicago, Fox News Indiana, Fox News Wisconsin, and the U.S. National Fox News Network; W.G.N. National U.S. Television; All Local Las Vegas Television, radio stations, and newspapers; The Chicago Tribune, The Chicago Southern Economist, The News Sun, The Beacon News, The Daily Herald, The New York Times, The Washington Post; ALL National U.S. Television Networks of N.B.C., A.B.C. and C.B.S.; as well as INTERNET POSTINGS WORLDWIDE, including the BRITISH BROADCASTING COMPANY, and the Germany National News Network Stations.”
Flatley did not pay but did file an action against Mauro for civil extortion, intentional infliction of emotional distress and wrongful interference with economic advantage. Mauro fought back with an anti-SLAPP motion that was denied by the trial court, a decision upheld by the Court of Appeal on the grounds that Mauro’s letter was criminal extortion as a matter of law, not protected speech entitled to the anti-SLAPP remedy. Undeterred (as you might expect), Mauro appealed to the California Supreme Court, which quite easily came to the same conclusion as the Court of Appeal (as you also might expect.)
In the course of its long walk down an easy road, the High Court noted the peculiar aspect of the crime of extortion:
”Extortion has been characterized as a paradoxical crime in that it criminalizes the making of threats that, in and of themselves, may not be illegal. ”[I]n many blackmail cases the threat is to do something in itself perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money.” (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal. App.3d 1058, 1079 [citation omitted].) The extortion statutes “all adopted at the same time and relating to the same subject matter, clearly indicate that the legislature in denouncing the wrongful use of fear as a means of obtaining property from another had in mind threats to do the acts specified in section 519, the making of which for the purpose stated is declared to be a wrongful use of fear-induced thereby.” (People v. Beggs (1918) 178 Cal. 79, 83, 172 P. 152.) ”It is the means employed [to obtain the property of another] which the law denounces, and though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoer, it is nevertheless within the statutory inhibition. The law does not contemplate the use of criminal process as a means of collecting a debt.” (Id. at p. 84, 172 P. 152; People v. Tufunga (1999) 21 Cal.4th 935, 955, 987 P.2d 168 [In Beggs “we explained that because of the strong public policy militating against self-help by force or fear, courts will not recognize a good faith defense to the satisfaction of a debt when accomplished by the use of force or fear”]; Lindenbaum v. State Bar (1945) 26 Cal.2d 565, 573, 160 P.2d 9 [For purposes of extortion “[i]t is immaterial that the money which petitioner sought to obtain through threats may have been justly due him”]; Gomez v. Garcia (9th Cir.1996) 81 F.3d 95, 97 [“The law of California was established in 1918 that belief that the victim owes a debt is not a defense to the crime of extortion”].).”
Flatley is an entertaining read because of the celebrity angle and Mauro’s way over-the-top demand letter. It is also a scholarly opinion with value in discussing the anti-SLAPP law and the litigation privilege. But mostly because Mauro’s actions were so outrageous, it isn’t as useful as a measuring stick in examining the conduct of other lawyers making demands not so far out in the outrage-o-sphere. Other decisions cited in the text, such as the Philippine Export case, are also limited. The Court of Appeal in that case noted that “Those types of threats pose the most difficult problems in the law of blackmail and the contract law of duress, because they are threats to take actions which are legal under many circumstances. For instance, a person, generally speaking, has a perfect right to prosecute a lawsuit in good faith, or to provide information to newspapers. Language can be found in many decisions that it is not an illegal threat for a person to do” ‘what he has a legal right to do.'” Philippine Export at 1079.
Falcon Brands helps to understand where the line is and tees the issue up nicely in its opening line: “Lawyers argue for a living. Some do more than argue. They lace their settlement demands with threats. When does such activity cross the line and become professional misconduct? That is the fundamental question presented in this case.” Again, the vehicle for considering the problem is anti-SLAPP, Falcon Brands appealing the striking of the causes of action in its cross-complaint under Code of Civil Procedure section 425.16. The opinion is helpful because the lawyer engaged in an escalating series of demands that ultimately crossed the line.
The case began when Falcon terminated an employee who hired the lawyer, Mousavi, to prosecute his wrongful termination claims. In her initial email, Mousavi asked for records from Falcon.
About a month later, with no response, she emailed Falcon again and stated that she would be contacting another business that was in the process of acquiring Falcon Harvest) and that Harvest would also be named as defendants in the wrongful termination action. The letter then segued into a discussion of Falcon’s alleged illegal conduct in violation of Bureau of Cannabis Control (B.B.C.) regulations, including an allegation of bribing a deputy district attorney. No link was drawn between the B.B.C. violations and the termination of the employee. Mousavi closed the email by stating that she would notify the buyer of her client’s claims if there was no response.
Now there was a response by Falcon’s counsel and a warning that contacting the buyer would be regarded as an “a tortious to interfere with Falcon’s contract and prospective economic advantage,” and pointed out that while “Harvest may or may not in the future acquire Falcon,” it was not yet an owner of Falcon and thus would not be a proper party to any claim. Falcon’s counsel later submitted a declaration averring that Mousavi told him a telephone conversation that she would inform Harvest of Falcon’s illegal conduct if her client’s claims were not settled.
A few days letter Mousavi emailed Falcon’s counsel and stated, “I have put the attorneys for Harvest Health & Recreation Inc. (‘Harvest’) on notice about Mr. Honard’s claim for wages, without disclosing other issues mentioned in my letter of October 8, 2019. However, Harvest has requested that I forward the demand letters I have sent you. I am planning to email those letters on Tuesday. Please call me if you have any questions. Thanks.” (Italics added.) After Falcon’s counsel replied and accused Mousavi of trying to extort a settlement, Mousavi replied with one last email: “I have been providing you with [an] opportunity to resolve this matter, but all I get from you are threats and evasiveness. I waited patiently to no avail. As stated, I will proceed accordingly. If you want to resolve this matter, now is the time.”
The trial court concluded Flatley was distinguishable because Mousavi’s “threat was to inform only one entity that would be directly affected by the threatened lawsuit when the merger [was] completed. Unlike the situation in Flatley, the threat to contact Harvest was not ‘entirely unrelated’ [to] the Cross-defendants’ claims. Accordingly, it has not been indisputably proven that Cross-Defendants’ sent the prelitigation letters with the intent to extort money by fear. Thus, extortion cannot be found as a matter of law.” As noted by the Court of Appeal, “there is nothing in Mousavi’s emails to suggest she planned to pursue settlement negotiations directly with Harvest. Instead, she repeatedly stated her plan was to serve the lawsuit, naming both Falcon and Harvest, if her settlement demands were not satisfied.”
The trial court examined the escalating nature of the demands.
“Applying these rules to the current facts, we believe Mousavi’s initial communication with Falcon on September 6, 2019, as described above, was innocent. Her next email sent on October 8, 2019, is a closer call when considered by itself. That email contained at least an implicit threat, as Mousavi specified the crimes Falcon had allegedly committed, though she never directly linked her settlement demands to them. Instead, she explained how she had calculated her client’s damages without directly referencing the alleged criminal misconduct. A skeptical observer might reasonably wonder why Mousavi referenced the “B.B.C. Violations” at all within that demand. Indeed, we share that curiosity. We nonetheless conclude the October 8 correspondence standing alone may not have crossed the line into misconduct.
But the October 8 email must be considered in context along with the October 11, 2019 email. In that email, Mousavi informed Falcon’s counsel she had already “put the attorneys for Harvest Health & Recreation Inc. (‘Harvest’) on notice about Mr. Honard’s claim for wages, without disclosing other issues mentioned in my letter of October 8, 2019.” There can be no doubt that bribing a deputy district attorney (as alleged in the October 8 e-email) involves criminal misconduct. Mousavi then added, “Harvest has requested that I forward the demand letters I have sent you. I am planning to email those letters on Tuesday.” The implication is clear: settle the case now, or Harvest will become aware of Falcon’s alleged criminal misconduct next week.”
The Falcon decision says that citing damaging information unrelated to the claim alone is not enough to cross the line. But the line is definitely crossed when there is an explicit or implicit threat to disclose the damaging unrelated information unless money is paid.
Years ago, a colleague at an APRL conference put it this way: “You can’t play poker with someone else’s chips.” The Falcon case helps clarify exactly when those chips are at play.
The American Bar Association has issued formal ethics opinion 496. The opinion addresses responding to negative online reviews and joins the growing number of ethics opinions opining that lawyers are highly circumscribed in responding to them (see LACBA formal ethics opinion 525, Florida Bar ethics opinion 20-1, proposed North Carolina State Bar formal ethics opinion 2020-1, among others.) The common thread in each of these opinions is that a lawyer’s response may not reveal any confidential information related to the representation and that the lawyer’s response should be “proporionate and restrained”. The gist:
Lawyers are regularly targets of online criticism and negative reviews. Model Rule of Professional Conduct 1.6(a) prohibits lawyers from disclosing information relating to any client’s representation or information that could reasonably lead to the discovery of confidential information by another. A negative online review, alone, does not meet the requirements of permissible disclosure in self-defense under Model Rule 1.6(b)(5) and, even if it did, an online response that discloses information relating to a client’s representation or that would lead to discovery of confidential information would exceed any disclosure permitted under the Rule. As a best practice, lawyers should consider not responding to a negative post or review, because doing so may draw more attention to it and invite further response from an already unhappy critic. Lawyers may request that the website or search engine host remove the information. Lawyers who choose to respond online must not disclose information that relates to a client matter, or that could reasonably lead to the discovery of confidential information by another, in the response. Lawyers may post an invitation to contact the lawyer privately to resolve the matter. Another permissible online response would be to indicate that professional considerations preclude a response.
Lawyers in California and elsewhere will continue to fume about the unfairness of being attacked and being unable to defend, especially as marketing becomes more and more driven by online reviews. Unfortunately, there is little that can be done. The most useful aspect of the ABA opinion is that responding to the negative on line review by noting that the lawyer is constrained by professional rules might ameliorate the unfairness by suggesting there is more to the story than the lawyer can reveal.
In the Matter of Caplin, Review Department, State Bar Court, case no. 17-C-05405, originally filed 11/13/20, publication ordered 12/30/20.
The Review Department, on motion of the Office of Chief Trial Counsel (OCTC), has ordered publication of its previously unpublished decision In the Matter of Caplin. Caplin involves a criminal conviction referral proceeding arising from a conviction for violating Vehicle Code 23152(a), popularly known as DUI, with an enhancement for high BAC. A chief issue in the case was whether the circumstances of the crime involved moral turpitude. After his arrest, the respondent told an elaborate lie to the police:
When questioned by Officer Friedrich at the accident scene, Caplin falsely identified a Michael Fisher as the driver of the vehicle, when in fact Caplin does not know anyone by that name. He repeated the lie to Officer Byrne. Caplin continued to conceal that he was the driver and made five additional statements promoting the false Michael Fisher narrative. Specifically, Caplin was deceitful with Officer Friedrich and Officer Byrne during the following seven interactions, to which he stipulated: (1) Caplin informed Officer Friedrich that his friend Michael Fisher had been driving the vehicle; (2) Caplin described Fisher as a white man wearing a buttoned-up shirt; (3) Caplin told Officer Byrne that his friend Fisher had been driving; (4) Caplin denied having Fisher’s telephone number when Officer Byrne asked Caplin to call Fisher to return to the scene; (5) Caplin advised Officer Byrne that he contacted Fisher and asked him to pick up Caplin; (6) When confronted with his inconsistent statements about not having Fisher’s phone number, Caplin conceded that he did have the number, but it was not a saved contact; and (7) Caplin interrupted Officer Byrne during the FSTs instructions to explain that he was not the driver of the vehicle.
Caplin, slip opinion at page 7
The presence or absence of moral turpitude in the circumstances surrounding crimes that do not inherently involve moral turpitude (like DUI) makes big difference in the level of discipline. The State Bar’s disciplinary standards are only guidelines but they illustrate the point.
Standard 2.15 CRIMINAL CONVICTIONS INVOLVING MORAL TURPITUDE
(b) Disbarment or actual suspension is the presumed sanction for final conviction of a misdemeanor involving moral turpitude.
Standard 2.16 CRIMINAL CONVICTIONS NOT INVOLVING MORAL TURPITUDE
(b) Suspension or reproval is the presumed sanction for final conviction of a misdemeanor not involving moral turpitude but involving other misconduct warranting discipline.
“Suspension” in Standard 2.16 is a term of art in disciplinary jurisprudence. It means a period of probation with an actual suspension hanging over the disciplined lawyer is he or she violates probation. “Actual suspension” in Standard 2.15 means exactly that, a period of time where the lawyer is unable to practice law for a minimum of 30 days at the start of the accompanying probation. The Hearing Judge found no moral turpitude and recommended two years probation, with stayed suspension of two years.
OCTC successfully appealed. The Review Department, exercising its de novo review power, found moral turpitude and tacked on a 30 day actual suspension but reduced the probation and stayed suspension to one year.
The Hearing Judge cited In re Kelley (1990) 52 Cal.3d 487 and In the Matter of Anderson (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 208, in finding that the respondent’s crime did not involve moral turpitude, yet also found that misrepresentations were made that justified a higher level of discipline the public reproval imposed by the California Supreme Court in Kelley. The Supreme Court in Kelley found that her second DUI did not involve moral turpitude but other misconduct warranting discipline, despite her misrepresentation to the police officer that she had not been drinking.
When the officer asked to see her driver’s license, he smelled alcohol and noticed that petitioner’s movements were labored. He asked whether she had been drinking; she asserted she had not.
Kelley, at 491
This sets up the most remarkable part of the opinion. How to square the Supreme Court’s holding in Kelley that misdemeanor DUI does not involve moral turpitude with Kelley’s misrepresentation to the officer that she had not been drinking? The Review Department in Caplin distinguishes the misrepresentation in Kelley thus
Although Kelley, with a prior DUI conviction, lied to police about not having consumed alcohol when being arrested [citation], In re Kelley is distinguished because the attorney’s lies were generic and limited to not being intoxicated. Here, Caplin’s lies were far more elaborate and numerous, and had the potential for great harm since he shifted blame to a fictitious driver, whom the police attempted to locate, thereby wasting valuable law enforcement resources.
Caplin, slip opinion at page 6.
On its face this may seem dubious. Isn’t a lie a lie? And isn’t dishonesty a foundation stone of the legal professions.
Part of the reason for confusion is the vagueness of the moral turpitude concept. Older discipline cases talked about moral turpitude in harsh terms. “Moral turpitude” is an elusive concept incapable of precise general definition. One dramatic exposition of the term was rendered by this court in 1938, and has since been consistently followed: “an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” In re Higbie(1972) 6 Cal.3d 562, 569. Yet an attorney can be culpable for moral turpitude for actions, especially misrepresentations, where there was no intent to deceive but merely gross negligence. See In the Matter of Yee(Review Dept. 2014 Cal. State Bar Ct. Rptr. 330, 334, Renke, PJ, dissenting, and cases cited therein.)
Even those cases found that clarity in the vaguely defined realm of moral turpitude depended on some connection with the conduct and the practice of law. In evaluating conduct that may or may not involve moral turpitude, we must recognize the purpose for which we have established the “moral turpitude” standard: to ensure that the public, the courts, and the profession are protected against unsuitable legal practitioners. [citations] The objective is not to impose punishment upon members of the profession. To hold that an act of a practitioner constitutes moral turpitude is to characterize him as unsuitable to practice law.Higbie, at 570.
But lawyers can commit criminal acts in course of practicing law, entirely within their personal lives, and every variation in between. Business and Professions Code section 6106 is explicit in finding acts of moral turpitude worthy of actual suspension or disbarment whether committed in the course of the practice of law or not. For the Review Department, it was the conclusion based on “the totality of the evidence” that respondent “consciously and persistently fabricated a complex narrative involving a phony driver to thwart arrest and place himself above the law” (Caplin, slip opinion at page 8) a narrative with harmful potential consequences because it diverted law enforcement resources in the hunt for the “real driver.” Complex narratives, of course, are what lawyers do. Caplin’s complex narrative directly implicated his fitness to be lawyer; Kelley’s spontaneous and general lie about not drinking did not, although other aspects of her conduct did constitute other misconduct warranting discipline.
Caplin is significant of another reason. The Office of Chief Trial Counsel has recently sought to increase the discipline imposed for DUI. Part of that effort has entailed arguing that precedents like Kelley and Anderson as obsolete because society views DUI much more seriously now than it did when those cases occurred and that all DUIs involve moral turpitude per se because the decision to drive after drinking shows “a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of the attorney’s conduct would be likely to undermine public confidence in and respect for the legal profession.” (In Re Lesansky(2001) 25 Cal.4th 11, 16.) OCTC’s chief cudgel in this fight has been In a Matter of Guillory (Review Dept. 2015) 5 Cal. State Bar Ct. Rptr. 402. Guillory involved a deputy district attorney with multiple DUI convictions who attempted (unsuccessfully) to use his status to convince police officers not to arrest him. It has been liberally used to argue for increased discipline in DUIs case with far less egregious facts no where closed the specific acts found to be moral turpitude by the Review Department.
In my view Caplin, despite the moral turpitude finding, stands for the proposition that Kelley and Anderson are not obsolete, still good law and still useful in determining the line between DUI conduct that involves moral turpitude from that which does not. Caplin was an unpublished decision and not citeable as precedent; now thanks to the publication request from OCTC, it is available to help guide the State Bar Court. One wonders if they thought that through before making it.