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 disbarred after four DUI convictions.  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.”

The Saga of the Brothers Jarvis: Disqualification Based on Lack of Authority, Not Conflict of Interest

Todd and James in an earlier incarnation.

 

A novel conflict case from the Sixth Appellate District upholds a disqualification order not based on conflict of interest.  The saga of the brothers Jarvis begins with the formation of business entities by Mr. Jarvis and Mrs. Jarvis which involves the siblings Todd and James and ends with the brothers, who are also 50% partners each in a separate entity Jarvis Properties, hopelessly deadlocked regarding the management of their real estate holdings.  Litigation naturally ensues and Todd hires an attorney to represent himself and another attorney, to represent Jarvis Properties, one Roscoe.  James moves to disqualify Roscoe and gets his wish in the trial court, based on part on Corporations Code section 15904.6(a) which provides that a general partnership needs the authority of more than 50% of the general partners to act.

The Court of Appeal marches through a generous helping of disqualification law based on conflicts of interest, which is divided into three categories,  “conflicts of interests between clients: when counsel’s simultaneous representation of a current client is adverse to the interests of another current client or when counsel’s successive representation of a current client is adverse to the interests of a former client and, by reason of the former representation, the attorney obtained confidential information material to the current representation.”  Slip opinion at page 21.  After concluding that this law wasn’t helpful on the apparently novel question of the conflicts based on lack of authority, the Sixth District examined State Bar formal ethics opinion 1994-137) addresses “a lawyer’s ethical duties when in the course of representing a partnership the lawyer receives conflicting instructions from two of the partners in circumstances where it is unclear which partner’s instruction the lawyer must follow.”

“The Committee opines that a “lawyer in this situation is adrift in perilous waters. The lawyer’s duty of loyalty requires the lawyer to act at a client’s direction. A lawyer cannot act without the client’s authorization. Nor can the lawyer take over the decision making for a client absent authority to do so. At the same time, a lawyer has a duty to competently represent the partnership as a client” and “cannot abdicate [that duty] in the face of a dispute among the partners.” (State Bar formal ethics opinion 1994-137.) The Committee concludes that “a lawyer caught in this situation must first determine whether the partnership agreement or applicable law provide an answer as to who has the authority to instruct counsel. For example, if the partnership agreement states which partner has the authority to oversee the representation, the lawyer must conform the representation to those provisions and take instruction from that partner.” “While [former] rule 3-600 instructs a lawyer to take actions as appear to be in the best interests of the organization, a lawyer must recognize the limits of his or her function. A lawyer must be careful to maintain the role as a servant of the partnership and not assume the client’s role in the lawyer-client relationship. Thus, the lawyer may render advice which he or she believes is in the best interests of the partnership. However, the lawyer cannot make decisions which are the partnership’s to make. [¶] . . . [W]here the lawyer cannot reasonably determine which partner’s instruction the lawyer may follow, the lawyer cannot take any action for the partnership in connection with the matters in dispute, until the dispute is resolved. . . . If the lawyer reasonably believes that he or she cannot effectively represent the partnership, the lawyer may withdraw.”  Slip opinion at 23-24.

Unfortunately, the partnership agreement for Jarvis Properties doesn’t provide the answer.  Neither does the Uniform Limited Partnership Act, the origin of section 15904.6(a).  The Court of Appeal finally turns back to the fundamental purpose of disqualification, to ensure public trust in the judicial process.  Questioning whether Roscoe has overstepped his boundaries as a lawyer in this statement that he would follow neither partner’s direction in representing the partnership, the Court of Appeal discerns a risk that Roscoe, hired and paid by Todd, would not act in the best interest of the partnership.  On that basis, It finds the trial court did not abuse its discretion in disqualifying Roscoe.  The Court of Appeal recommends that he trial court explore some other mechanism to break the deadlock between Todd and James, such a receivership.

Will the Supreme Court take this one up? Or will it let the saga of the brothers Jarvis end with an unusual and interesting opinion that will certainly be cited in arguments to come.

 

Revised California Sample Fee Agreement Forms Out for Public Comment

The State Bar of California is seeking public comment on proposed revisions to the sample fee agreement forms.  The forms have been revised to conform to new California Rules of Professional Conduct that became effective on November 1, 2018.  Included are changes addressing new Rule 1.15 regarding deposit of advanced fees into trust and flat fees, new Rule 1.5.1 on fee splitting between lawyers and a form addressing mediation confidentiality unde new Evidence Code section  1129(a), required when representing a client in mediation.

Drafting an appropriate fee agreement should not be a casual exercise but one given a lot of thought.  The State Bar form fee agreements offer a place to start and the revised versions will continue to do so, even if modified after public comment.

Deadline

May 1, 2019

Direct comments to

Isabel Liou
Office of Professional Competence, Mandatory Fee Arbitration Program
180 Howard Street
San Francisco, CA 94105
Phone: 415-538-2020
Email: feearb@calbar.ca.gov

 

New California Ethics Opinion: Lawyers Seeking Ethical Advice

The Regulation and Discipline Committee (RAD) of the State Bar Board of Trustees has approved Formal State Bar Ethics Opinion 2019–197,

The Opinion discusses a lawyer’s ethical obligations when seeking advice regarding ethics issues, either from an independent counsel or another lawyer in the lawyer’s firm.  It concludes that the “act of seeking legal advice concerning ethical obligations owed to a client by itself does not create a conflict with the client”.  Once “a lawyer becomes aware that he or she has committed an error that could prejudice the client, the lawyer ethically may seek legal advice concerning obligations to the client and options available, but must comply with the rules governing disclosure to clients and conflicts.” The opinion interprets new Rules of Professional Conduct 1.4 (communication) and 1.7 (conflicts of interest regarding current clients).

The Opinion serves the laudable goal of inducing lawyers to obtain ethics and risk management advice sooner rather later.  It also telegraphs the message that serious mistakes that constitute significent developments must be to communicated to clients.  Those two processes should work hand and hand to control damage to the client and to the lawyer and law firm.  There is actually a unity of interest between lawyer and client that might not be readily apparent.