ABA Chimes In on Responding to Bad Reviews: No Self Defense

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.

ABA Formal Ethics Opinion 496

The ABA put to rest any lingering notion that the “self-defense” exception to confidentiality in ABA Model Rule 1.6(b)(5) allows the lawyer any latitude in responding with confidential information, defined broadly in ABA Model Rule 1.6(a) and by California statute, Business and Professions Code section 6068(e). California’s version of Rule 1.6 DOES NOT contain an explicit attorney self-defense exception to confidentiality, although some have argued that an implied self defense exception exists by virtue of the Evidence Code exception to lawyer-client privilege in section 958. Reliance on such “implied exceptions” carries a lot of risk (see California Legal Ethics blog “Pictures of Lily – Implied Exceptions to Confidentiality in California).

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.

Discipline for DUI: Not All Lies Are Created Equal

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.

Ray Milland Contemplates a
Complex Narrative in “The Lost Weekend.

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.

Can Counsel’s Argument Be Disciplinable Under California’s New Anti-Discrimination Rule?

Malek Media Group v. AXQG Corporation, Second App. Dist., Div. 3, case no. B299743, filed 12/16/20.

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.


ABA Blesses Remote Practice – Is California in?

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”.

Roche v. Hyde, A SLAPP Saga Only 8% As Long As “War & Peace”

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.

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

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

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

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

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

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

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

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

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

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

 

DA Work Product: Who Does it Belong To?

 

When is a privilege not a privilege?

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

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

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

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

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

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

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

slap·hap·py

/ˈslapˌhapē/

adjective

informal

adjective: slap-happy

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

“he possessed slaphappy courage”

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

“Drysdale’s slaphappy friend”

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

“slaphappy surveying methods”

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

informalsloppy, shambolic, all over the place;

informalall over the shop

“the slaphappy way the tests were carried out”

antonyms: careful, meticulous, painstaking
  1. North American

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

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

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

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

 

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

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

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

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

California Rule of Professional Conduct 3.2 Delay of Litigation

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

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

The Court found:

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

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

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

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

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

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

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

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

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

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

Playing With Someone Else’s Chips: Lawyer Extortion

There is probably no bad time to discuss the ethics of extortionate lawyer demands, written and otherwise, but this time may be better than most. These ethics may seem a little paradoxical, much like the crime of extortion itself – how can I be criminally liable for threatening to do something that is perfectly legal for me to do? But a close reading of authority shows that lines can be drawn that an attorney should not cross.

Criminal extortion is defined by Penal Code §518 as “the obtaining of property or other consideration from another, with his or her consent … induced by a wrongful use of force or fear….”  Attorneys are in the business of obtaining property on behalf of clients, and they often do so by utilizing means that employ some types of force and are fearful in their effect. At the same time, attorneys are subject to the principles of extortion, depending on whether their use of force or fear was the “wrongful” type.

How to begin to draw that line? We can start with a specific Rule of Professional Conduct, Rule 3.10, which forbids an attorney from threatening to present criminal, administrative or discipline charges to gain an advantage in a civil dispute.

Notice that Rule 3.10 does not forbid the threat of civil litigation to gain an advantage in a civil dispute. The Rule can be read in light of Penal Code § 519, which defines the type of fear that “may” support a finding of extortion: “1. To do an unlawful injury to the person or property of the individual threatened or of a third person. 2. To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime. 3. To expose, or to impute to him, her, or them a deformity, disgrace, or crime. 4. To expose a secret affecting him, her, or them. 5. To report his, her, or their immigration status or suspected immigration status.”

Section 519’s use of the word “may” suggests this isn’t a definitive list of all the types of “force or fear” that might be “wrongful” and thus extortionate. Rather, the list included in Penal Code § 519 is representative of the characteristics that may serve to violate the statute.

Case law also illuminates the distinction, and the widely read case of Flatley v. Mauro (2006) 39 Cal.4th 299 is essential, both for understanding Rule 3.10 and for understanding the broader concept of extortion.

Former Illinois attorney Mauro sent a demand letter to Irish dancer and entertainer Michael Flatley, famed as the “Lord of the Dance,” in Mauro’s capacity as the attorney for a woman who accused Flatley of raping her.

The letter demanded $100,000,000.00 and threatened that “all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information will be exposed … [w]e are positive the media worldwide will enjoy what they find,” that “all pertinent information and documentation … shall immediately [be] turned over to any and all appropriate authorities ” and that along with “the filing of suit, press releases will be disseminated to various media sources, including but not limited to” a list of about two dozen different news media.

There was also a conversation Mauro had with Flatley’s attorney Bert Fields, wherein Mauro stated the story would follow Flatley wherever he went and that he would “destroy” him. Flatley then filed an action against Mauro in California for extortion and defamation. Mauro filed a SLAPP motion that was denied. After the Court of Appeal affirmed the denial, Mauro tried his luck with the California Supreme Court. The Supreme Court found Mauro’s conduct extortionate as a matter of law, not protected by the litigation privilege (Civil Code §47) and fair game for anti-SLAPP purposes, and, citing Libarian v. State Bar (1952) 38 Cal.3d 328, imbued with moral turpitude.

A more recent Court of Appeal decision examining a demand letter, Malin v. Singer (2013) 217 Cal.App.4th 1283, comes out the other way, finding the demand letter protected petitioning activity, not extortionate, and protected by the litigation privilege  Attorney Singer sent a demand letter to his client’s partner in a limited liability company (LLC), alleging conversion and breach of contract. Singer specifically contended the partner had sexual liaisons with older men he called by nicknames such as “Uncle” and “Dad.” He enclosed a photograph of one of the men, noting that he was a judge, and provided a complaint with blank spaces for their names. Singer stated the complaint filed in the trial court would disclose the men’s names.

In Malin, the trial court found the letter extortionate and denied a SLAPP motion. In its decision, the Court of Appeal found the demand letter was SLAPP-protected petitioning activity and subject to the litigation privilege, observing the men were not members of partner’s family and the demand letter included claims that partner embezzled money from the LLC and used the LLC’s resources to facilitate the liaisons and to communicate with the men. The Supreme Court denied review.

The line drawn by Flatley and Mailin is this: you can raise some ugly allegations in a demand letter provided the contemplated disclosure of the bad stuff takes place solely in the context of litigation and such disclosure is necessary to prove your case. Such a use of legal “force” is not “wrongful” for extortion purposes. However, if you threaten to utilize means outside the civil litigation process (news media, criminal prosecution) you cross the line into extortionate conduct.  As summarized by a smart ethics lawyer in a conversation I had with her some time ago, “you can’t play with someone else’s chips.”

 

In the end, Bus. & Prof. Code §6068(f) might provide the pithiest guidance of all: “It is the duty of the attorney … [t]o … 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.”