Price of Domestic Violence Goes Up in State Bar Court

A large part of the work of the California discipline system is dealing with attorneys who are convicted of crimes. This part hasn’t always gotten a lot of attention, something that may have changed with the highly publicized retroactive fingerprinting of attorneys by the State Bar of California. Perhaps that is because it doesn’t deal with the application of the Rules of Professional Conduct, which are the focus of many of the people in the ethics world. Committing crimes is so self-evidently wrong that it may seem uninteresting. Of course, it is extremely interesting to those directly involved. And should be to others because the criminal conviction cases can raise issues relevant to the wider society outside the confines of law practice.

A recent unpublished decision of the Review Department of the State Bar deals with one of the issues: domestic violence.  In the Matter of Khaliq involves an attorney who was convicted of violating Penal Code section 273.5 after a plea.  That section makes wilful infliction of corporeal injury on a spouse, co-cohabitant or other defined persons that results in a traumatic condition a “wobbler” crime, one that can be charged either as a felony or misdemeanor.

One of the most interesting things about Khaliq is that the hearing judge’s  recommendation was disbarment, based on her findings that the surrounding circumstances involved moral turpitude. Discipline Standard 2.15(b) states that “[d]isbarment is the presumed sanction for final conviction of a felony in which the facts and circumstances surrounding the offense involve moral turpitude, unless the most compelling mitigating circumstance clearly predominate, in which case actual suspension of at least two years is appropriate.”  Discipline Standard  reThe Standards, despite their name, being merely guidelines, don’t control the result; the Supreme Court has said that appropriate discipline in a given case depends on “on a balanced consideration of the unique factors in each case.” In the Matter of Van Sickle (Review Dept. 2006) 4 Cal. State Bar Ct. Rptr . 980, 2006, WL 2465633.  That means that comparable discipline case law must be looked at as well.

The problem is that there is very little comparable discipline case law that comes anywhere close to imposing disbarment for an act of domestic violence.

The harshest reported discipline imposed has been In the Matter of Otto (1989) 48 Cal.3d 970 where State Bar recommendation of six months actual suspension was adopted by the Supreme Court in a one-page opinion.  Otto had been found guilty of two felonies, violations of section 273.5 and Penal Code section 245, both reduced to misdemeanors.  The State Bar found no moral turpitude, but we don’t know why, as the Otto decision contains no facts.   Neither side appealed, and the Court was reviewing the case under its plenary power to review all discipline matters.

 

Another case of the same relative vintage, In Re Hickey (1990) 50 Cal.3d 571 involved a nolo contendere plea to a concealed weapon charge and an improper withdrawal in a client matter.  Included in the surrounding facts and circumstances were, in the Supreme Court’s words, “evidence that the attorney had repeatedly engaged in acts of physical violence toward his wife and others and that his conduct arose from repeated abuse of alcohol, discipline was warranted….from which he had recovered, and was related to marital difficulties that had been resolved.”  Although Hickey was charged with misdemeanor violations of Penal Code sections 245, subdivision (a)(1) (assault with a deadly weapon) and 273.5 (spouse abuse) “the criminal proceedings against petitioner were suspended pursuant to Penal Code section 1000.6, for the purpose of granting diversion, and petitioner was referred to the Anger Awareness Program.”  Hickey, at 576. The recommended discipline, including 30 days of actual suspension, was adopted and imposed.

Looking Hickey with contemporary eyes, the level of discipline seems astonishingly low, especially given the evidence of chronic violence toward his wife, notwithstanding that it was connected with an alcohol abuse problem that was ostensibly mitigated.  The Review Department in Khaliq noted:

We also acknowledge that prior discipline in domestic violence cases often has not reflected the changes in society and the current recognition of the seriousness of domestic violence. Many earlier cases resolved such matters with low levels of discipline, including minimal or no suspension. We agree with the hearing judge that it is important to reevaluate the appropriate discipline by considering current societal values and changing mores.

Khaliq, slip opinion at 17.

Yet, disbarment was a bridge too far for the Review Department majority.  It noted that only two California discipline cases have imposed disbarment for acts of domestic violence, both involving homicide.  It noted that Khaliq’s felony conviction was reduced to a misdemeanor at the time of sentencing;  Standard 2.16(c) says that disbarment or actual suspension is the presumed sanction for final conviction of a misdemeanor involving moral turpitude.  It agreed with the hearing judge that moral turpitude was involved in the surrounding circumstances,  including a “prank” where respondent sent text messages to his former girlfriend purportedly from a potential employer, and a lie told about a domestic violence incident that occurred 12 years earlier in undergraduate school.  As part of its balanced consideration of all relevant factors, it gave less weight to aggravating factors and more weight to mitigating factors, including character witness testimony from Khaliq’s family.  The court looked at discipline decisions from other states, filling in the gaps in California case law.  It ultimately recommended two years of actual suspension with probation and the requirement that the respondent prove his rehabilitation, fitness to practice and current learning and ability in the law in a petition under Standard 1.2.(c)(1) before resuming active status.  Judge Purcell, dissenting, would have imposed three years of actual suspension.   Not disbarment but not a cake walk, especially given the Office of Chief Trial Counsel’s zeal in opposing Standard 1.2(c)(i) petitions.

Khaliq is not citable as precedent, but in the small world of State Bar Court jurisprudence where everybody, including hearing judges, read Review Department decisions with great interest, it will have an impact.  Lawyers who commit criminal acts of domestic violence will find tougher sledding in State Bar Court.

 

 

 

A Judicial Cri De Coeur On Civility

The tone of most judicial opinions runs a little cold. Decisions crafted with logic and authority that read as if they might have been written by Mr. Spock or some futuristic AI. A recent decision of the Fourth District Court of Appeal moves against the trend, blending its logic and authority with a passionate viewpoint that laments the lost civility of the profession. At the same time, the decision cites law that hints at potential ways to enforce civility rules that heretofore have had only the force of a bully pulpit.

The setup in Lasalle v. Vogel, case no. G055381, filed June 11, 2019 (Justice Bedsworth, writing for the Court, with Justices Moore and Ikola concurring) is a legal malpractice action filed by a client ascribing the dismissal of her action for failure to provide discovery to her lawyer’s failure to communicate. The defendant lawyer was served with the summons and complaint. Thirty-six days later, after no response was filed in the court, the plaintiff’s lawyer sent the defendant lawyer a letter and an email, informing the defendant lawyer that her default would be entered if no response was filed the very next day, a Friday. No response was filed. On Monday a request for entry of default was filed at 4:05 pm and emailed to the defendant. She responded at 5:22 pm, with a request for an extension of time to respond.

By then, it was too late. The defendant lawyer filed a motion for relief from the default. It was opposed, with an opposition that took the opportunity to slime the defendant lawyer with a request for judicial notice (granted) of her discipline in two unrelated matters. Based on the default, a $1 million judgment was entered about a year later.

While the Court expressed sympathy for court and plaintiff and bemoaned the dilatory tactics “we have all encountered [but] we cannot see this as such a situation, and cannot countenance the way this default was taken, so we reverse the judgment.” (Slip opinion at page 4.)

In the pages that follow, the Court cites a long history of judicial opinions bemoaning the decline of civility in litigation practice and states that the Court could have cited many others from other jurisdictions “were we writing a compendium rather than an opinion”. They summarize our current state of affairs from quoting it’s own opinion and call to action in Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th267, 293:

Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.  It’s time to stop talking about the problem and act on it.  For decades, our profession has given lip service to civility. All we have gotten from it is tired lips.  We have reluctantly concluded lips cannot do the job; teeth are required.  In this case, those teeth will take the form of sanctions. We sanctioned counsel $10,000.

And, aside from the court’s power to sanction, what sort of teeth might exist?

The Court notes that “it’s gotten so bad the California State Bar amended the oath new attorneys take to add a civility requirement.  Since 2014, new attorneys have been required to vow to treat opposing counsel with dignity, courtesy, and integrity. That was not done here. Dignity, courtesy, and integrity were conspicuously lacking.” (Emphasis in the original.)

Because this is a civil action, not a discipline decision, there is no citation to Business and Professions Code section 6103:

A willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.

Emphasis added.

The Court also cites Code of Civil Procedure section 583.130:

So to the extent it was possible for a party seeking a default with unseemly haste to commit an ethical breach without creating a legal issue, that distinction was erased by section 583.130. The ethical obligation to warn opposing counsel of an intent to take a default is now reinforced by a statutory policy that all parties “cooperate in bringing the action to trial or other disposition.”  (§583.130.)  Quiet speed and unreasonable deadlines do not qualify as “cooperation” and cannot be accepted by the courts.

Business and Professions Code section 6068(a) provides that “it is the duty of an attorney to do all of the following: (a) To support the Constitution and laws of the United States and of this state.” The State Bar Court has found that “the Supreme Court interprets section 6068(a) as a conduit by which attorneys may be charged and disciplined for violations of other specific laws which are not otherwise made disciplinable under the State Bar Act.” In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476, 1991 WL 70703.

California law once provided that it was the duty of an attorney to avoid “offensive personality”, former Business and Professions Code section 6068(f). That section was found to be unconstitutionally vague by the Ninth Circuit (United States v. Wunsch, 84 F.3d 1110, 1120 (9th Cir. 1996).) That section had been used to discipline attorneys for extreme violations of the civility rules. Since Wunsch, the conventional wisdom has been that civility codes were well-intentioned but unenforceable through the discipline process.

Lasalle suggests that there are two possible paths to enforce some civility codes: as violations of section 6103 (as oath violations for attorneys admitted after 2014) or section 6068(a) violations based on failure to comply with section 583.130.

It is also worth noting new California Rule of Professional Conduct 8.4(d) states that professional misconduct includes engaging “in conduct that is prejudicial to the administration of justice.” We have no case law yet interpreting just how broad this rule’s reach might be.

Is discipline for lack of civility consistent with the public protection mission of the State Bar? The Lasalle Court would probably say yes: “We cannot accept [lawyer incivility] because it is contrary to legislative policy and because it is destructive of the legal system and the people who work within it. Allowing it to flourish has been counterproductive and corrosive” citing increased litigation [Slip opinion at page 10.]

Is discipline for lack of civility consistent with the public protection priorities of the State Bar? That is a question no one can yet answer.

Doris Day and the Man Who Was Too Mean to Die

The death of beloved entertainer Doris Day at the age of 97 naturally evokes in a California ethics lawyer memories of another who was not at all beloved.  Jerome Rosenthal.  The “man who was too mean to die”, as described by one of the discipline prosecutors who spent 20 years disbarring Rosenthal.

Jerome Rosenthal was the lawyer for Ms. Day’s husband, Marty Melcher. Melcher and Rosenthal essentially stole most of the money that Doris Day made during her acting career, only discovered after Melcher died in 1968.  Ms. Day and her son Terry Melcher filed their State Bar complaint against Rosenthal in December 1968.  Following a nearly twenty year delay, much of it caused by Rosenthal’s delaying tactics, the California Supreme Court ultimately disbarred him in 1987 (Rosenthal v. State Bar (1987) 43 Cal.3d 612.) In the meantime, Ms. Day obtained a judgment against Rosenthal, a judgment that Rosenthal was able to tie up in the Court of Appeal for ten years (Day v. Rosenthal (1985) 170 Cal. App. 3d 1125.)

But Rosenthal wasn’t finished.  He filed an unsuccessful action against the State Bar and the employees who prosecuted him (Rosenthal v. Vogt, et al. (1991), 229 Cal. App. 3d 69.)  He filed unsuccessful action in Federal Court against the California Supreme Court and State Bar officers Rosenthal v. Justices of the Supreme Court of California, 910 F.2d 561, 563 (9th Cir. 1990.)

The words of the trial court in Day v. Rosenthal summarizes the essence of disaster than was visited on Doris Day:

“The tragic drama in this case started to unfold back in the late “40’s or early ’50’s when Jerome B. Rosenthal began to represent Doris Day and Martin Melcher. It involves…. an attorney so intent on doing business with his clients, with their money … that he lost sight of ethical and legal principles. “The case from beginning to end oozes with attorney-client conflicts of interest, clouding and shading every transaction and depriving Doris Day and Martin Melcher of the independent legal advice to which they were entitled. It involves kick-backs, favored treatment of one client over others; it involves amateurish attempts to deal in the hotel and oil business that would be humorous but for the tragic consequences. It involves the extraction of fees from Doris Day and Martin Melcher and fees from other clients or entities for the same work performed. It involves an undertaking to provide financial and investment advice and a complete and utter failure to provide it. It involves a tortured effort by Rosenthal to maintain for years in the future the indentured position in which he had held Doris Day since 1956, even after she had ceased to permit him to act as her attorney. It involves a percentage retainer agreement that in the context of the facts of this case is void and against public policy because of the violation of the rules of professional conduct….

“The evidence so reeks of negligence, a violation of the Rules of Professional Conduct and all that is basic in the traditional relationship of attorney and client as to require that the court, as best it can, undo the transaction that occurred so as to attempt to put Doris Day and her late husband’s estate back to a position as if they had not become enmeshed in the machinations of Rosenthal’s twisted sense of professional responsibility.”

Day v. Rosenthal, at 1134–35.

The Court of Appeals decision documents the many, many instances where that twisted sense of professional responsibility expressed itself, beginning with a 1956 contingency fee agreement purporting to award Rosenthal 10% of everything the Melchers made. “They created the foundation for Rosenthal’s abuses, overreaching and double-dealing. They made Rosenthal the Melchers’ accountant, investment advisor, record keeper and attorney. He became a quadruple threat, in complete control of the Melchers’ financial affairs, free of any checks or balances…. The agreements were short and deceptively simple. They did not spell out any of the ways in which Rosenthal would gain and the Melchers could lose. Yet, as the trial court found, Rosenthal never adequately informed the Melchers of the terms, conditions and implications of their respective 1956 retainer agreements.” (Day v. Rosenthal, at 1144.)

Only one good thing can be said to have come from the Man Who Was Too Mean to Die. The lengthy and tortured history of the discipline case against him highlighted the limitations of the volunteer system of discipline adjudication.  It helped point California in the direction the full time professional State Bar Court, recommended by Prof. Robert Fellmeth as part of the discipline reforms of late 1980’s and ultimately implemented in September 1989.

Aside from this small point, Jerome Rosenthal’s career stands as a monument to the darkest that the legal profession has yet produced.  Doris Day deserved better but she came back and fought and tried to make the world a better place in her work for animal welfare, a bright light in contrast to all that blackness.

Too Clever By Half

Another interesting State Bar Court decision, this one unpublished.  In the Matter of Bhardwaj.  Aside from another reminder that lawyers can be disciplined for conduct occurring outside the practice of law when they represent themselves, there is an interesting discussion of one of the things the respondent was sanctioned for an elaborate system of abbreviations meant to circumvent the word limitations in the Court of Appeals.  The Office of Chief Trial Counsel argued that it’s violated the lawyer’s duty to uphold the law (Bus. & Prof. Code section 6068(a)) and was an act of moral turpitude (Bus. & Prof. Code section 6106.) Neither, said the Review Department, citing to their own published decision In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476, because court rules are not equivalent to statutes, and the au courant definition of moral turpitude from the Supreme Court, In re Lesansky (2001) 25 Cal.4th 11.  Rather, respondent was rather “too clever by half”. This was clever enough, however, to constitute an aggravating factor.

No example of what this abbreviation system looked like in practice or was so dense as to amount to a secret code.

 

State Bar Court Precedent Blooms in the Spring

 

Like May toadstools sprouting after an April rain, three new published Review Department decisions appeared together on the State Bar Court’s website on or about May Day.  Only one (In the Matter of Amponsah) is recent, filed April 22, 2019; the other two (In the Matter of Chance Gordon and In the Matter of Gonzalez) were filed last fall.

Exactly what determines when a published decision will appear on the State Bar Court’s website is a little mysterious. Gordon and Gonzalez are disbarment cases and the State Bar Court may have waited until the California Supreme Court acted on its disbarment recommendations before publishing their decisions. The recommendation in Amponsah is a one-year actual suspension, with a two year stayed suspension and probation. At this writing, it has not yet been transmitted to the high Court.

The real fun for those who follow the State Bar Court is figuring out why these decisions were deemed worthy of publication.  Publication gives the opinion precedential value in State Bar Court under State Bar Rule of Procedure 5.159.  Subsection E describes the criteria for publication:

(E) Criteria for Publication. By majority vote, the Review Department may designate for publication an opinion which:

(1) Establishes a new rule, applies an existing rule to a set of facts significantly different from those stated in published opinions, or modifies, or criticizes with reasons given, an existing rule;

(2) Resolves or creates an apparent conflict in the law;

(3) Involves a legal issue of continuing interest to the public generally and/or to members of the State Bar, or one which is likely to recur;

(4) Makes a significant contribution to legal literature by collecting and analyzing the existing case law on a particular point or by reviewing and interpreting a statute or rule; or

(5) Makes a significant contribution to the body of disciplinary case law by discussing the appropriate degree of discipline based on a set of facts and circumstances materially different from those stated in published opinions.

Most Review Department decisions don’t make the cut and are unpublished and not citeable as precedent.  Any given observer might read one of those decisions and conclude that it would fit within the criteria established by the Rule 5.159(e); clearly, selection reflects an exercise of the Review Department’s discretion.  Its collective mind can be changed, and Rule 5.159(h) allows “any person” to request publication of a decision or to request depublication of a decision.  Unpublished decisions have become published at the request of the Office of Chief Trial Counsel (OCTC), e.g., In the Matter of Nasser, as well as the Association of Discipline Defense Counsel, e.g., In the Matter of Yee.  Gordon and Gonzalez may have been originally unpublished opinions subject to such a request; the current unavailability of the State Bar Court on-line docket makes it impossible to confirm that now.

The Gordon decision is truly a toadstool and a highly toxic one at that.  The Respondent engaged in nationwide loan modification practice in partnership with a non-lawyer that included the mailing of many misleading direct mail letters, some seeming to come from the Department of Housing and Urban Development, the use of a number of different entity names and websites, and the collection of $11.4 million in advanced fees from from more than 2,000 in violation of Civil Code section 2944.7.  The Consumer Finance Protection Bureau (CPFB) obtained a permanent injunction against Mr. Gordon in 2012 shutting down the operation. The Office of Chief Trial Counsel, in one of the infrequent applications of its power to seek interim remedies under Bus. & Prof. Code section 6007(c), obtained an order for his involuntary inactive enrollment from the State Bar Court in November 2012, based on the CPFB’s injunction as well as a large number of client complaints.

The misconduct was serious, probably serious enough to justify disbarment given the lack of mitigating factors and several aggravating factors.  But the icing on Mr. Gordon’s cake was a weighty aggravating circumstance: his multiple threats against an OCTC investigator and prosecutor.  Based on these threats, the prosecutor obtained restraining orders against Mr. Gordon.  The Review Department spends three pages of the decision describing these threats in detail.

The scope of the egregious underlying conduct and the serious aggravating circumstances would seem to fit comfortably within Rule 5.159(e)(5) by furnishing a significant contribution to disciplinary case law materially different than prior case law.  After discussing its prior published discipline cases involving loan modification misconduct, the Court states that

While the loan modification cases discussed above provide guidance, this case is unique.  Due to the scope of Gordon’s scheme and the egregious aggravation, our recommendation may go beyond the discipline recommended in a typical loan modification case.  (See In re Morse [(1995) 11 Cal.4th 184] at p. 207 [scope of attorney’s misconduct necessitated court go beyond recommendations in other false advertising disciplinary cases].)

The citation to Morse is significant because of Morse’s procedural history.  Mr. Morse engaged in a massive direct mail solicitation effort (over four million mailers) to persuade homeowners to hire him to file statutory homesteads with a deceptive mailer designed to look like it came from a lender. The subject California Attorney General and the Alameda County District Attorney filed a successful action against Morse in for an injunction to halt his operation, upheld on appeal.  Nonetheless, the Review Department, based on precedent, recommended only a 60-day actual suspension.  The Supreme Court found this wanting and ordered discipline including three years of actual suspension.  Moreover, it chided the State Bar Court for being overly dependent on its analysis on decisions whose facts were less serious.  The Supreme Court articulated the inquiry this way:

These decisions provide some guidance, but our determination of the appropriate discipline ultimately depends on the answers to two key questions. First, what did Morse do wrong? Second, what is the discipline most likely to protect the public, the courts, and the profession, or stated conversely, to deter Morse from future wrongdoing?… Morse also appears unwilling to accept any meaningful discipline. The hearing judge recommended only a 15-day actual suspension, an exceedingly light sanction. Rather than count his good fortune, Morse felt wronged, arguing to the review department that the suspension was excessive. When the review department increased the actual suspension to 60 days, still a minor sanction, Morse sought our review.

Morse is a “correction” decision and its impact wasn’t limited to Mr. Morse.  The presiding judge of the State Bar Court, who sits in the Review Department, and the Hearing Judge in the matter were not re-appointed.  OCTC prosecutors (including me) felt emboldened, and the office began to focus on appellate advocacy in the Review Department.  Gordon has more than a passing similarity to Morse. Both cases show that while precedent is important in State Bar Court, it isn’t as important as it might be in other courts.  Of course, the test articulated in Morse is simple but somewhat circular since figuring out the appropriate discipline is what its all about anyway.

Gonzalez is a duller and sadder affair.  Mr. Gonzalez, admitted in 2002, was disbarred on his third strike since 2011. The first discipline involves failures to perform, to communicate, to account for fees and to return client files that began in 2005.  Mr. Gonzalez failed to fulfill the conditions attached to that discipline and was disciplined for that in 2012.  The third strike involved both client misconduct similar to the first discipline and a failure to comply with California Rule of Court 9.20, the rule requiring notice of suspension to clients and others, among other things.

The Hearing Judge recommended an actual suspension of two years and until restitution was made to the clients, based on the judge’s reasoning the misconduct in “Gonzalez II occurred after much of the present misconduct.” (See In the Matter of Sklar (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 602, 619: weight of aggravation for prior discipline record depends on whether attorney had the opportunity to heed import of prior proceeding before committing misconduct at issue.)  The Review Department disagreed, finding that “Gonzalez committed most of his present misconduct in 2011 and 2012, when he knew of both prior discipline cases.”  Standard 1.18 suggests disbarment on the third strike unless compelling mitigation can be shown. The Hearing Judge assigned significant mitigating weight to the stroke Mr. Gonzalez suffered in 2012.  Again, the Review Department disagreed, finding that the expert medical evidence did not show “clear and convincing” causation between the medical problems and the misconduct.

Gonzalez may be useful precedent on the application of Standard 1.8 and the quanta of evidence necessary to establish causation for medical problems.  But it doesn’t stand out brightly against the unpublished decisions that apply the same sort of analysis, for instance In the Matter of Na, which also discusses Standard 1.8 but comes to a different result, two years actual suspension.  If OCTC asked for this case to be published, I would love to read their argument.

Amponsah is a “second strike” case where OCTC sought disbarment for a failure to comply with California Rule of Court 9.20 and violation of two probation conditions. Case law says that disbarment is the presumptive discipline for failing to comply with Rule 9.20.  Mr. Amponsah was able to show that he made unsuccessful attempts to comply with the Rule and the emotional difficulties he suffered after the imposition of prior discipline played in role in his failure to timely comply.  Moreover, no client was harmed and he admitted his culpability. The Hearing Judge found “suspension rather than disbarment is appropriate because [Amponsah’s] misconduct is not indicative of his ability to conform to ethical norms” and recommended an actual one-year suspension.  The Review Department, in the exercise of its de novo review (see Rule of Procedure 5.155(a)) weighed the mitigating factors a little differently but adopted the same recommendation.

Amponisah has presidential value in its analysis of the mitigating factors.  OCTC sought disbarment below and, losing, appealed the case. Publishing the decision might be a signal to OCTC discouraging appeals where the record establishes appropriate mitigation.

This isn’t specifically provided for in the rules but in the relatively small world of disciplinary jurisprudence, but it is within the discretion of the Review Department hinted at in Rule 5.159(e).

But the nature of that small world points up a seeming contradiction in the use of Review Department decisions as precedent.  OCTC lawyers, defense lawyers, and Hearing Judges are all going to be reading (or should be reading) both the unpublished and the published decisions to understand how the Review Department is analyzing issues and taking guidance from them.  The Review Department gets to choose (by majority vote) which decisions will be used in the future, but not which arguments.  Unpublished decisions may play a bigger role in discipline jurisprudence than in civil court, a role not obvious, making the publication status both important than it seems, but also pointing up the publication is a decision made by the Review Department for its own reasons, some that might not fit completely within the confines of the Rule.

 

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.