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.

New Summary Disbarment: Now With Extra Summary!

Keaton largeCalifornia lawyers who commit felony crimes found their sledding a bit tougher on January 1, 2019. On that date new amendments to Business and Professions Code section 6102(c) went into effect, expanding the definition of crimes subject to summary disbarment. Summary disbarment, as the name implies, is disbarment without a hearing where the attorney is allowed to present evidence at mitigating circumstances. The prior version of the statute provided for summary disbarment for felony crimes that involved moral turpitude per se, crimes that involve moral turpitude in every instance. The new version of the statute provides for summary disbarment upon not just for conviction of crimes of moral turpitude per se but also for felony crimes that involve moral turpitude in the surrounding facts and circumstances.

The summary disbarment statute has been around for a long time and it’s gone through many changes. Originally it provided for summary disbarment upon conviction of either a misdemeanor or felony involving moral turpitude (see In the Matter of Rothrock (1940) 16 Cal.2d 449. 451. In the 1950’s, perhaps reflecting a more lawyer-friendly environment, the statute was changed to provide for felony disbarment in crimes where “(1) An element of the offense is the specific intent to deceive, defraud, steal, or make or suborn a false statement” and “(2) The offense was committed in the course of the practice of law or in any manner such that a client of the attorney was a victim.”  In the Matter of Lilly (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 473, 478; 1993 WL 277528.  The statute was amended in 1997 to its penultimate formulation, removing the requirement that the crime victimized a client or occurred in the course of the practice of law and expanding it to any crime of moral turpitude.

Moral turpitude is an “elusive concept incapable of precise general definition.” (In re Higbie (1972) 6 Cal.3d 562, 569. Older case law defined moral turpitude broadly as “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” In re O’Connell (1920), 184 Cal. 584, among many other different formulations (see People v. Castro (1985) 38 Cal.3d 301, 333 (J. Bird, dissenting): “As one commentator stated, “[j]udicial definitions of moral turpitude are so imprecise that it is only a matter of conjecture   whether a particular crime involves it.” (Note, Entrance and Disciplinary Requirements for Occupational Licenses in California (1962) 14 Stan.L.Rev. 533, 542.) With respect to attorney discipline, the definition has been refined through the years to a slightly more precise formulation: “[I]n attorney discipline cases; moral turpitude should be defined with the aim of protecting the public, promoting confidence in the legal system, and maintaining high professional standards.”  In Re Grant (2014), 58 Cal. 4th 469, 476.  Once we get away from the relative certainty of crimes involving dishonesty and intentionally violence, moral turpitude evokes Justice Potter Stewart’s famous (paraphrased) statement on obscenity:  “I can’t define it, but I know it when I see it.”

So if the crime itself doesn’t necessarily involve moral turpitude, what does moral turpitude in the surrounding circumstances mean?  In Re Alkow (1966) 64 Cal.2d 838 involved an attorney convicted of voluntary manslaughter, which is not a crime of moral turpitude per se (see People v. Coad (1986) 181 Cal. App. 3d 1094, 1104).

“After his driver’s license expired in 1961 Alkow made one attempt to secure another license, but it was refused on the ground that he had defective vision.  From the time his license expired until he committed the manslaughter, he was convicted of more than 20 traffic violations, at least 11 of which were for driving without a license. On December 5, 1963, he pleaded guilty to a violation of right of way and driving without a license, and on December 6, 1963, he pleaded guilty to driving without a license and without evidence of registration. He was placed on probation for one year in each action upon the condition that he not violate any laws. On January 16, 1964, he pleaded guilty to a failure to observe a boulevard stop and driving without a license and was placed on probation for one year upon the condition that he not violate any laws and upon the further specific condition that he not drive without a license.

About 6 p.m. on February 15, 1964, while driving without a license in violation of the terms of his probation and the law, he struck and killed a woman pedestrian in Santa Ana. His defective vision was one proximate cause of the accident. Although he did not intend the accident, he knew his vision was defective and reasonably must have known that injury to others was a possible if not a probable result of his driving.

Alkow, at 839–40.  A more contemporary example is the result in an unpublished State Bar Court Review Dept. opinion in In the Matter of Wyatt, State Bar Court case no. 11–C–17662,  2014 WL 642699, filed February 7, 2014.  Wyatt plead nolo contendere to felony vehicular manslaughter while intoxicated (Penal Code section 191.5.)  Wyatt lied to a police officer about how much he had to drink (his BAC was .18%).  Both the hearing judge and the Review Department found that lie to be moral turpitude in the surrounding circumstance.

An example on the other side of the ledger is In Re Fahey (1973) 8 Cal.3d 842, where an attorney’s repeated failure to file tax returns over a period of years was found not to involve moral turpitude in the surrounding circumstances because expert psychiatric testimony evidence was introduced suggesting that the conduct was the result of Fahey’s “suffering from a psychoneurotic condition that substantially impaired his ability to take proper care of his personal financial affairs.” Fahey, at 850.

Some might say that the change in section 6102(c) isn’t that great since applicable discipline standards (Standard 2.15) provide that disbarment is the presumptive discipline for a felony involving moral turpitude in the surrounding circumstances.  But Wyatt at least had the opportunity to demonstrate mitigation, wanting though it was found, something future respondents in his position won’t enjoy.  There will be a hearing in every felony conviction to determine if it qualifies for summary disbarment and if it does, no further hearing to discuss mitigation.

Over time, the discipline system has gotten less and less sympathetic to attorneys who commit crimes.  This latest change certainly won’t be the last in that progression.  There has never been a worse time to be both an attorney and criminal. But that will change.

New San Diego Ethics Opinions on Lawyer Marketing

San diego skyline

A pair of new ethics opinons from the Legal Ethics Committee of the San Diego County Bar Association addressing lawyer marketing issue have been approved and published.

Opinion no. 2019-1 discusses attorney’s marketing of legal forms. It asks:

Under what conditions may lawyers provide electronic form-based products to customers?

2019-1 concludes: “To the extent that lawyers sell form-based solutions, they must either provide an electronic form that the customer customizes without recommendations, or form an attorney-client relationship. A lawyer may offer a form product without creating an attorney-client relationship so long as the lawyer provides no advice, including which form to use or how to complete it.”

Opinion no. 2019-2 addressing attorney participation in marketing programs similar to Avvo’s now defunct Avvo Legal Services program.  The Opinon asks:

What legal ethics regulations and standards must a California lawyer consider when deciding whether to participate in a marketing program where consumers obtain an immediate, brief, limited-scope telephonic consultation with a lawyer selected by the program? If that program charges potential clients a flat fee for a limited scope of legal services that includes both the fee for legal services and the program’s marketing fee, will the lawyer’s participation run afoul of ethics rules and regulations?

The Opinion’s digest concludes:

Rules 5.4 and 7.2 preclude a lawyer from paying for cases, whether by a division of fees or as separate payment for a case. Likewise, Business and Professions Code section 6152 precludes the use of runners or cappers in the solicitation or procurement of business for an attorney. Certified legal referral services are designed to facilitate the process of lawyer selectionby identifying lawyers who meet minimum criteria.

A lawyer’s payment of a fee to a lawyer referral services that does not qualify under the State Bar Rules is a violation of Rule 5.4(a)(4), which prohibits a lawyer from paying a nonlawyer for recommending the lawyer’s services. A lawyer-client relationship initiated via a third-party introduction does not relieve the lawyer of the responsibility of performing a conflict check pursuant to Rule 1.7. Where payments are made to a lawyer by a third party, the lawyer must obtain the client’s informed written consent pursuant to Rule 1.8.6(c). Failing to obtain informed consent for third-party payments and commingling fees for legal services with “marketing fees” or other property is a violation of California’s legal ethics regulations.

Rule 5.4 prohibits a lawyer or law firm from sharing fees directly or indirectly with an organization that is not authorized to practice law. Unethical fee-sharing results where a consumer pays legal fees directly to a third party, which holds and controls the fees until services have been completed, and which then splits the fee with a lawyer.

These opinions arrive against the backdrop of fermenting and controversial change in the profession over how legal services are marketed.