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.
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.
Plaintiff and defendant formed Foxtail LLC to produce a film. The relationship dissolved in acrimony, including allegations that MMG’s principal Malek had sent sexually explicit messages to a prospective Foxtail employee. AXQG filed a petition with JAMS alleging for breach of fiduciary duty, fraud, and breach of the Foxtail agreement. MMG and its principal Malek counterclaimed for breach of contract, breach of fiduciary duty, conversion, fraudulent concealment, and declaratory relief. The arbitrator found for AXQG and denied all of MMG/Malek’s claims. Predictably, AXQG petitioned to confirm the award and MMG petitioned to vacate it. At that point, as the Court of Appeal relates the tale:
Malek “commenced a deep-dive, internet search into [the arbitrator’s] background.” He found the GLAAD [Gay and Lesbian Alliance Against Defamation] organization website which stated that the arbitrator had been a founding board member of GLAAD and its chief counsel decades ago. MMG argued that the arbitrator failed to disclose his background and “his self-proclaimed status as a gender, social, female and LBGTQ activist and icon, while facing a matter grounded in gender and social issues, particularly sexual harassment.” Specifically, MMG asserted that the arbitrator was obligated to disclose his prior affiliation with GLAAD once made aware of Malek’s Catholic background. MMG claimed that GLAAD was at odds with the Catholic Church after the passage of Proposition 8, which banned same-sex marriage in California. Thus, MMG asserted that GLAAD and the Catholic Church were antagonistic to each other and, by extension, the arbitrator against Malek, casting doubt on the arbitrator’s impartiality.
The trial court confirmed the award and the appeal followed. In support of the appeal, appellant MMG filed two requests for judicial notice with the Court of Appeal. Among other things, the appellant asked for judicial notice of “the #MeToo movement and the phrase a woman alleging sexual harassment must be believed” that was denied, the Court finding that “MMG failed to provide sufficient evidence or explanation that the #MeToo movement and the phrase a woman alleging sexual harassment must be believed are facts of such generalized knowledge that they cannot reasonably be the subject of dispute.” The Court also declined to take judicial notice of press clippings from the GLAAD website a twitter posts from the arbitrator’s purporting to show a connection between the #MeToo movement and GLAAD, and a connection between GLAAD and the arbitrator demonstrating that the arbitrator’s perspective on “white privilege, men, religion, abuse of women and anything that does not comport with [the arbitrator’s]social justice view of the world…..and the arbitrator’s inability to act impartially in a case involving a Catholic white male accused of sending sexually explicit texts to a prospective employee.”
The Court of Appeal found that the arbitrator was not required to disclose his relationship with GLAAD. Arbitrators must make disclosure of “all matters that could cause a person aware of the facts to reasonably entertain a doubt that the proposed neutral arbitrator would be able to be impartial.” Code Civ. Proc. section 1281.9, including grounds specified for disqualification of judges under section 170.2 and matters subject to the ethical standards for contractual arbitrators adopted in the California Rules of Court. The test is on objective one; the “reasonable person under this objective test “‘is not someone who is “hypersensitive or unduly suspicious,” but rather is a “well-informed, thoughtful observer.”’[Citations.]‘[T]he partisan litigant emotionally involved in the controversy underlying the lawsuit is not the disinterested objective observer whose doubts concerning the judge’s impartiality provide the governing standard.’”
There were many issues in arbitration besides the alleged sexual harassment. The Court of Appeal characterized MMG arguments as “ridiculous” because “MMG cannot show that the arbitration had anything to do with LGBTQ issues, GLAAD, religion, or the Catholic Church.”
AXQG moved to sanction MMG and its counsel in the amount of $56,0005 for filing a frivolous appeal. Sanctions may be imposed for frivolous appeals where the appeal was prosecuted for an improper motive or the appeal indisputably has no merit.(Code Civ. Pro. section 907; Cal. Rule of Court 8.276(a)(1).) To determine whether an appeal is frivolous, “we apply both a subjective standard, examining the motives of appellant and its counsel, and an objective standard, analyzing the merits of the appeal. In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649–650.” The Court of Appeal readily concluded that MMG’s appeal was both subjectively and objectively frivolous, lacking legal merit and “prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment.” The lack of merit is evidence that it was appealed for an improper motive. “MMG adopted a war-like mentality toward AXQG, its counsel, and anyone else involved with this case. The record is replete with personal attacks on Gou and AXQG’s counsel, as well as numerous unsubstantiated claims that everyone who was purportedly against Malek and MMG was engaged in an elaborate conspiracy to destroy him.”
Moreover, the Court found both MMG and its counsel “equally culpable for pursuing this frivolous and bigotry-infused appeal.” It ordered MMG and it’s counsel to pay AXQG $46,000, sanctioned MMG and its counsel $10,000 payable to the Court, ordered counsel to report the sanction (independently reportable under Bus. & Prof. Code section 6068(o)(4) and itself reported counsel to the State Bar under Bus. & Prof. section 6086.7.
California Rule of Professional Conduct 3.1 is the obvious point of departure. It’s requirements parallel the inquiry described in Flaherty: “(a) A lawyer shall not: (1) bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person…” But discipline prosecutors are looking for cases to apply some of the “new” Rules, for instance new Rule of Professional Conduct 8.4.1, titled Prohibited Discrimination and Harrassment. Given the Court of Appeal’s description of a “bigotry laden appeal” can Rule 8.4.1(a) gain any traction?
Probably not. The first part of the rule offers a glimmer of possibility:
(a) In representing a client, or in terminating or refusing to accept the representation of any client, a lawyer shall not: (1) unlawfully harass or unlawfully discriminate against persons on the basis of any protected characteristic; or (2) unlawfully retaliate against persons.
But even if the lawyer’s conduct in pursuing this appeal is characterized as harassment or retaliation, it’s basis must be a protected characteristic, defined in the Rule itself in subsection (c), a very specific type of harassment or retaliation. AXQG, the target of the frivolous appeal, does not fall into the category.
(c) For purposes of this rule: (1) “protected characteristic” means race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, sexual orientation, age, military and veteran status, or other category of discrimination prohibited by applicable law, whether the category is actual or perceived
To cap it off, section (f) of the Rule says it is not a violation of the Rule to represent someone accused of such conduct, and that providing advice or advocacy “as otherwise permitted under these Rules [e.g. Rule 3.1] does not violate the Rule.”
California’s Rule is not as broad as the Pennsylvania rule, based on Model Rule 8.4(g), whose enforcement was recently enjoined by a Federal judge. The Pennsylvania rule provided that it “is professional misconduct for a lawyer to: in the practice of law, by words or conduct, knowingly manifest bias or prejudice, or engage in harassment or discrimination, as those terms are defined in applicable federal, state or local statutes or ordinances, including but not limited to bias, prejudice, harassment or discrimination based upon race, sex, gender identity or expression, religion, national origin, ethnicity, disability, age, sexual orientation, marital status, or socioeconomic status.”
Counsel’s conduct in Malek is might be within the reach of the ABA Model Rule 8.4(g), which may or may not be comforting to California lawyers contemplating the efficacy of our Rule 1.8.1.
The American Bar Association (ABA) has issued formal ethics opinion 495 “Lawyers Working Remotely.” A timely topic in the midst of the pandemic and an opinion that will offer some comfort to those who are currently living and practicing in a jurisdiction where they are not licensed. The digest concludes:
Lawyers may remotely practice the law of the jurisdictions in which they are licensed while physically present in a jurisdiction in which they are not admitted if the local jurisdiction has not determined that the conduct is the unlicensed or unauthorized practice of law and if they do not hold themselves out as being licensed to practice in the local jurisdiction, do not advertise or otherwise hold out as having an office in the local jurisdiction, and do not provide or offer to provide legal services in the local jurisdiction. This practice may include the law of their licensing jurisdiction or other law as permitted by ABA Model Rule 5.5(c) or (d), including, for instance, temporary practice involving other states’ or federal laws. Having local contact information on websites, letterhead, business cards, advertising, or the like would improperly establish a local office or local presence under the ABA Model Rules.
It sounds good as far as it goes. But can a lawyer rely on it? The opinion interprets the ABA Model Rules, not the law of any particular jurisdiction, as the opinion carefully points out. While the ABA Model Rules are the model for the ethical rules in every US state now – California, the last holdout, succumbed in November 2018 – every state has enacted its own version, some (like California) with very significant changes indeed.
The opinion bases much of its analysis on the text of Model Rule 5.5(a) and 5.5(b):
(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. (b) A lawyer who is not admitted to practice in this jurisdiction shall not: (1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or (2) hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.
More good news is that California’s version of this part of 5.5 is virtually identical:
(a) A lawyer admitted to practice law in California shall not: (1) practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction; or (2) knowingly assist a person in the unauthorized practice of law in that jurisdiction. (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.
The only significant change is the addition of the word “a resident office” to the prohibition on lawyers not admitted in California. And it is of significant interest because there are many lawyers living in California that are not admitted here but carrying on a “virtual” law practice for clients in other states where they are admitted. This was the case even before the pandemic.
Does “resident office” include the spare bedroom that you have outfitted as your home office? While it does not address the California rule, the Formal Opinion 495 is helpful (but not dispositive) in answering that question:
The purpose of Model Rule 5.5 is to protect the public from unlicensed and unqualified practitioners of law. That purpose is not served by prohibiting a lawyer from practicing the law of a jurisdiction in which the lawyer is licensed, for clients with matters in that jurisdiction, if the lawyer is for all intents and purposes invisible as a lawyer to a local jurisdiction where the lawyer is physically located, but not licensed. The Committee’s opinion is that, in the absence of a local jurisdiction’s finding that the activity constitutes the unauthorized practice of law, a lawyer may practice the law authorized by the lawyer’s licensing jurisdiction for clients of that jurisdiction, while physically located in a jurisdiction where the lawyer is not licensed if the lawyer does not hold out the lawyer’s presence or availability to perform legal services in the local jurisdiction or actually provide legal services for matters subject to the local jurisdiction, unless otherwise authorized.
The opinion is consistent with the case law, which seems to emphasize a multi-factor test, with the location of the client as one of the most important factors, in deciding “where” the practice of law is taking place; see Barker, William T., Extrajurisdictional Practice by Lawyers. Available at SSRN: https://ssrn.com/abstract=283269.
There is no California authority finding that such “invisible” practice by “extrajurisdictional” lawyers not admitted in California violates Business and Professions Code section 6125 and 6126, where the prohibitions on unauthorized practice of law principally reside. Perhaps that is because it is invisible. But the deeper explanation is such practice does not tread on the fundamental nature of these prohibitions as protectionism – a way to keep out of state lawyers from poaching California clients. This protectionism has always been couched as necessary to protect the public from unqualified lawyers and the ABA opinion dutifully recites the shibboleth, which grows more hollow as technology conquers geography.
In the meantime, lawyers not admitted to practice in California are probably safe to virtually practice for clients in their licensed jurisdictions, so long as they remain “invisible”.
Tolstoy’s masterpiece “War and Peace” is 1,225 pages long. Roche v. Hyde(First Appellate Dist, Div. 4, case no. A150459, filed 6/30/20) is only 95 pages long. If you must while away the empty hours of summer reading only one really long story, which one would you choose?
Even a Cliff Notes version of Roche is probably too long for this blog so I will try to boil it down to the essentials with some help from the Court, which laments that “While the ultimate issue may be put simply, that is not so for the case as a whole.”
Chapter 1 The Sale of Winery and the Fight Over Non-Disclosure
In 2006, Ram’s Gate Winery, LLC (Ram’s Gate) purchased a Sonoma County winery from Dr.Joseph G. Roche (Roche) and his wife. Ram’s Gate later sued the Roches for breach of contract, fraud, and negligent nondisclosure based on claims they withheld seismic information about the property and made misstatements concerning the ability to build on an existing building pad. The protracted litigation ultimately ended with Ram’s Gate dismissing the action, Roche paying nothing to Ram’s Gate, and Ram’s Gate paying most but not all of Roche’s attorney fees.
Chapter 2 The Malicious Prosecution Action
Roche then brought a malicious prosecution suit against Ram’s Gate, two of its members, Michael John and Jeffrey O’Neill (collectively,Ram’s Gate or the Ram’s Gate defendants),along with their attorney, Thomas Hyde (collectively with Ram’s Gate, the defendants), alleging they withheld documents in discovery that would have proved they knew or should have known the seismic information they claimed was kept from them when they bought the property from Roche.
Chapter 3 The Inevitable Anti-SLAPP
The defendants filed special motions to strike the complaint as a strategic lawsuit against public participation(anti-SLAPP motions). Following denial of their anti-SLAPP motions, the Ram’s Gate defendants and Hyde separately appealed. Though they largely take a common position in these now consolidated appeals, Ram’s Gate and Hyde have appeared separately and have filed separate briefs, as they did in the trial court. Together, the defendants attack the denial of their anti-SLAPP motions from many angles—necessitating the extended discussion to follow—but at its core the single issue before us, put simply,is whether Roche made a sufficient showing that he was likely to succeed on the merits. We conclude he did and therefore affirm.
So far, the story doesn’t seem that interesting. SLAPP specialists will appreciate the detailed discussion of the SLAPP issues. But the ethics lawyer’s eye is caught by the Court’s self-admittedly “harsh” view of lawyer’s Hyde’s conduct, and how it affects Ram’s Gate”s advice of counsel defense:
The Ram’s Gate defendants do not contend on appeal that evidence of their malice was lacking, but Hyde does. The singular aggressiveness of his position, in our view, betrays its weakness.
“Hyde is in the least credible position to make such a claim, since it was Hyde who discovered the Boudreau Report in the 2005 Due Diligence Binder before filing the underlying action. It was Hyde who, as the attorney representing Ram’s Gate, was responsible for undertaking a reasonable investigation into the facts before making irresponsible accusations in a pleading.
Rather than acknowledge the possibility of any misjudgment, Hyde doubles down. The four-and-a-half-year record of withholding discovery, we are told, is not his fault. Roche, Hyde argues, is to blame because Simon was negligent in not serving a subpoena seeking production of the JHP Land I client files on the correct party.And according to Hyde, the only reason the JHP Land I client files were eventually produced was due to Hardy’s “unethical” decision to produce materials from that file.He even claims to have no idea why Hardy failed to produce the Boudreau Report in the spring of 2012, as if his request of Hardy not to produce the client files of JHP Land I never happened.
Ultimately the sheer brazenness of the posture Hyde assumes may present credibility issues for the finder of fact to assess, but for now it adds nothing to the weight of his arguments. If anything, it detracts from them.
Whatever else happens here, the Ram’s Gate defendants seek to preserve their ability to argue “[t]here can be no imputation to a client of his attorney’s misconceived legal analysis so as to void the client’s good faith reliance on his counsel’s advice as providing probable cause.” (Brinkley v. Appleby (1969) 276Cal.App.2d 244, 247.) They point out that “non-attorney defendants can usually demonstrate the existence of probable cause, and thus avoid liability, by evidence showing that they relied on the advice of counsel in good faith after full disclosure of the facts.”(Downey Venturev. LMI Ins.Co., supra,66Cal.App.4th at p.496, fn.24; see also Sosinsky v. Grant (1992) 6Cal.App.4th 1548, 1556 [“‘Probable cause may be established by the defendants in a malicious institution proceeding when they prove that they have in good faith consulted a lawyer, have stated all the facts to him, have been advised by the lawyer that they have a good cause of action and have honestly acted upon the advice of the lawyer.’”].) About this, all we need say is that issues concerning any advice-of-counsel defense by the Ram’s Gate defendants must be sorted out at trial.”
Emphasis added. California Rule of Professional Conduct 3.1 (former Rule 3-200) prescribes an ethical standard very similar to elements of malicious prosecution. Our Rule 3.4 “Fairness to Opposing Party and Counsel“, restating the substance of several former Rules, says that “a lawyer shall not…may not suppress any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or to produce.”
There was no sequel to “War and Peace.” But Roche v, Hyde will have one when the matter is tried on remand. We don’t know if it will be published but if so it may be a good read.