MCLE ARTICLE AND SELF-ASSESSMENT TEST
By reading this article and answering the accompanying test questions, you can earn one MCLE legal ethics credit.
To apply for credit, please follow the instructions on the test answer sheet on page 31.
by John W. Amberg and Jon L. Rewinski
Bad acts by both
and prosecutors spurred decisions
in legal ethics last year
was an active year vising. This action was taken during the sixth grand jury indicted attorney Terry Christensen
for professional review of the case, after the Ninth Circuit was for allegedly hiring Pellicano to bug the phone
ethics. In a scan- criticized for its prior handling of the matter of the ex-wife of Christensen’s client Kirk
dal that made national headlines, Hewlett- by a committee chaired by U.S. Supreme Kerkorian.5
Packard’s in-house ethics counsel, along with Court Justice Stephen Breyer, and Real was Last year also saw the Department of
others, was indicted by California’s attorney threatened with impeachment by the Judiciary Justice announcing in its McNulty Memo-
general for using a form of deceit known as Committee of the House of Representatives. randum that it would revise its official pol-
pretexting to obtain phone records of board The order, which was not officially published icy of pressuring corporations to waive the
members suspected of leaking information to due to the judge’s appeal, was accidentally attorney-client privilege by requiring U.S.
reporters.1 Informed by one of the company’s posted on the Internet. It stated that the tes- attorneys to consult with the assistant attor-
investigators that the investigators were lying timony given by Real to the four-judge inves-
John W. Amberg is a partner in the Santa Monica
to obtain conﬁdential information, the HP tigating committee had been “inaccurate and
office of Bryan Cave LLP, and Jon L. Rewinski is a
lawyer reportedly e-mailed the informant: “I misleading.”3
shareholder in the Los Angeles office of Heller
shouldn’t have asked….”2 Culminating years of investigation, the
Ehrman LLP. Both are former chairs and current
A Ninth Circuit Court of Appeals judicial U.S. attorney in Los Angeles indicted plain-
members of the Los Angeles County Bar
discipline council voted to publicly censure tiffs’ class action ﬁrm Milberg Weiss Bershad
Association’s Professional Responsibility and
Judge Manuel L. Real of the U.S. District & Shulman and two name partners on con-
Ethics Committee. Amberg is also chair of the State
Court for the Central District of California for spiracy and money laundering charges.4 In the
Bar of California’s Committee on Professional
improperly seizing control of a bankruptcy continuing probe of illegal wiretapping by pri-
Responsibility and Conduct.
case to protect a probationer he was super- vate investigator Anthony Pellicano, a federal
Los Angeles Lawyer March 2007 29
ney general for the Criminal Division before with Cobra Solutions. The city attorney those parties. The First District Court of
asking for those waivers. By doing so the erected an ethical screen that prevented him Appeal concluded that the litigant, whom
DOJ was reacting to pressure from the from accessing the office’s paper and elec- the lawyer had never represented, lacked
American Bar Association and business and tronic ﬁles on the matter, required office per- standing to do so. Only a person who has or
professional leaders across the political spec- sonnel to refrain from talking to him about had a ﬁduciary relationship with a lawyer has
trum. Nevertheless, this limited reform did not the matter, and directed all inquiries about the standing to disqualify the lawyer.
allay the ABA’s concerns that the govern- matter to a senior assistant city attorney. As noted in Cobra Solutions, to disqual-
ment’s policy erodes the ability of corporate After ﬁnding evidence of kickbacks, the city ify one’s former lawyer from representing an
officers and directors to obtain legal advice attorney’s office filed an action for fraud, adversary in a pending litigation, a litigant
to comply with the law.6 The U.S. Sentencing breach of contract, and statutory violations must establish that the subject of the current
Commission, however, voted to delete lan- against Cobra Solutions. Citing a conﬂict of litigation is substantially related to the sub-
guage from its sentencing guidelines encour- interest, Cobra Solutions moved to disqual- ject of the prior litigation, which generally
aging federal prosecutors to demand that ify the city attorney and the entire office. triggers a presumption that the lawyer pos-
corporations waive the attorney-client priv- The trial court disqualiﬁed both, and the sesses conﬁdential material information about
ilege in exchange for more lenient sentences.7 court of appeal and supreme court affirmed. the litigant. Failure to prove a substantial
The reasons for disqualifying the city attor- relationship between the two engagements
Conflicts of Interest ney himself were relatively straightforward. generally leads to the denial of a disqualiﬁ-
Increased lawyer mobility coupled with the He and his prior law ﬁrm represented Cobra cation motion, as happened in Fremont
enormous growth of private, government, Solutions on a matter substantially related to Indemnity Company v. Fremont General
and public interest law offices in recent years the lawsuit being pursued by the city attor- Corporation14 and Faughn v. Perez.15 In
continues to present lawyers and the courts ney’s office. Because of the substantial rela- Fremont Indemnity, the lawyers’ prior rep-
with challenges in interpreting traditional tionship, the city attorney was presumed to resentation of the moving party, who was
conﬂicts rules. During 2006, the California possess material confidential information the plaintiff in a legal malpractice action,
Supreme Court and First, Second, and Fifth about Cobra Solutions. Lacking Cobra’s con- was not substantially related to the lawyers’
District Courts of Appeal published opin- sent, he was disqualiﬁed. The supreme court, current defense of the moving party’s parent
ions on these and related topics, including in disqualifying the entire city attorney’s office corporation against the moving party’s claims
screening in a government law office, stand- despite the presence of the ethical screen, for misappropriation. Similarly, in Faughn, the
ing to move for a lawyer’s disqualiﬁcation, the noted: “Individuals who head a government lawyer’s prior defense of the moving party’s
sufficiency of evidence needed to disqualify a law office occupy a unique position because parent and sister corporations in multiple
lawyer, and the standard for assessing a cli- they are ultimately responsible for making medical malpractice actions was not sub-
ent’s written waiver of a conﬂict. policy decisions that determine how the agen- stantially related to the lawyer’s current rep-
Every lawyer owes his or her current cy’s resources and efforts will be used.” The resentation of a mother and her child in a
clients a duty of loyalty and current and for- attorneys who serve directly under the head medical malpractice action against the mov-
mer clients a duty of conﬁdentiality.8 Rule 3- attorney cannot be entirely insulated from pol- ing party. The court in Faughn concluded
310(C) of the California Rules of Professional icy decisions, nor free from real or perceived that the moving party’s motion relied too
Conduct prohibits the concurrent represen- concerns as to what their boss wants. Hence, heavily on inferences about facts that were
tation of two clients with adverse interests, a former client “might legitimately question” within its control and could have been dis-
absent the informed written consent of both whether a government law office has an closed without compromising confidential
clients. Rule 3-310(E) prohibits a lawyer unfair advantage when the chief attorney information.16 In both these cases, the courts
from representing a client in an engagement possesses conﬁdential information about his rejected the moving parties’ “playbook” argu-
adverse to a former client without the former or her former client that pertains to the gov- ments that the former lawyers had gained
client’s informed written consent if the lawyer ernment law office’s current matter.10 As a some special understanding of the moving
obtained from the former engagement conﬁ- result, the entire office in Cobra Solutions had parties’ method of litigating from the prior
dential information material to the new to be disqualified. The court reserved for engagements.17
engagement. Violations of conﬂicts rules may later determination whether ethical screening To avoid disqualiﬁcation in the face of a
result in lawyer discipline, disqualiﬁcation might suffice to shield a senior supervisory conﬂict, a lawyer must obtain written client
of a lawyer, disqualiﬁcation of the lawyer’s attorney (as opposed to the head of the office) consent. What must the consent say? The
ﬁrm or law office, disgorgement of fees, and with a personal conﬂict.11 Justice Corrigan, First District Court of Appeal analyzed this
malpractice exposure. joined by Chief Justice George, dissented, issue in People v. Baylis.18 The defendant’s
In City and County of San Francisco v. citing Formal Opinion No. 342 of the brother had been prosecuted in two assault
Cobra Solutions, Inc., 9 the California American Bar Association’s Committee on cases. The brother’s lawyer claimed mistaken
Supreme Court concluded that a conﬂict dis- Ethics and Professional Responsibility. Justice identity and suggested that the defendant,
qualifying the head of a government law Corrigan suggested that an automatic dis- who was then represented by another lawyer,
office requires the disqualification of the qualiﬁcation rule unreasonably impairs the committed the crimes. Thereafter, the defen-
entire office—notwithstanding the office’s government’s ability to function.12 dant was prosecuted in connection with a
attempt to avoid conﬂicts by creating an eth- Disqualiﬁcation can be a potent weapon third assault. The defendant wanted to retain
ical screen. A lawyer and his ﬁrm represented that impairs a party’s right to choose its own his brother’s former lawyer. The brother sig-
Cobra Solutions in negotiations with the city counsel, imposes a financial burden on a niﬁed his consent with this language: “I have
over a technology agreement. The lawyer party needing to replace disqualiﬁed counsel, been advised that a conﬂict of interest may
billed minimal time on the engagement, just and has the potential for tactical abuse. In exist with [the lawyer] representing [the defen-
four-tenths of an hour. He was subsequently Dino v. Pelayo,13 a litigant, after participat- dant]. I am aware of this and herby [sic]
elected San Francisco city attorney. After the ing in a mediation, sought to disqualify a waive any conﬂict of interest regarding same.”
election, the city attorney’s office began an lawyer jointly representing two other par- Notwithstanding the brother’s consent, the
investigation concerning the city’s contract ties because of an alleged conﬂict between trial court denied the request because the
30 Los Angeles Lawyer March 2007
MCLE Test No. 157 MCLE Answer Sheet #157
2006 ETHICS ROUNDUP
The Los Angeles County Bar Association certiﬁes that this activity has been approved for Minimum
Continuing Legal Education legal ethics credit by the State Bar of California in the amount of 1 hour.
1. All lawyers owe their current clients a duty of loyalty True.
and their current and former clients a duty of conﬁ- False.
True. 12. A lawyer may not threaten to bring criminal, admin- State/Zip
False. istrative, or disciplinary charges to gain an advantage E-mail
in a civil dispute.
2. A lawyer cannot concurrently represent two clients True.
with adverse interests unless both clients give their False. State Bar #
informed written consent.
True. 13. A lawyer who acts as an escrow holder owes a INSTRUCTIONS FOR OBTAINING MCLE CREDITS
False. paramount duty of loyalty to his or her client and may 1. Study the MCLE article in this issue.
disregard the rights of the other party. 2. Answer the test questions opposite by marking
3. A lawyer cannot represent a client adverse to a for- True. the appropriate boxes below. Each question
mer client without the latter’s informed written consent False. has only one answer. Photocopies of this
answer sheet may be submitted; however, this
if the lawyer obtained conﬁdential information mate-
form should not be enlarged or reduced.
rial to the new engagement from the former client. 14. A lawyer who misleads a judge or jury is subject to
True. discipline under the Rules of Professional Conduct. 3. Mail the answer sheet and the $15 testing fee
($20 for non-LACBA members) to:
False. Los Angeles Lawyer
4. Under California law, an ethical screen is sufficient MCLE Test
P.O. Box 55020
to avoid disqualiﬁcation of an entire law office. 15. A lawyer cannot withdraw from pending litigation Los Angeles, CA 90055
True. without the permission of the court.
Make checks payable to Los Angeles Lawyer.
False. 4. Within six weeks, Los Angeles Lawyer will
return your test with the correct answers, a
5. Only a person who has a ﬁduciary relationship with
rationale for the correct answers, and a
a lawyer has standing to disqualify the lawyer. 16. Prosecutors may be disqualified if they cannot certiﬁcate verifying the MCLE credit you earned
True. exercise their discretion in an evenhanded manner, with through this self-assessment activity.
False. the result that the defendant is unlikely to receive a fair 5. For future reference, please retain the MCLE
trial. test materials returned to you.
6. To disqualify a former lawyer from representing an True.
adversary in a new proceeding, a client generally must False. ANSWERS
show there is a substantial relationship between the Mark your answers to the test by checking the
two engagements. 17. A charging lien in a contingent fee case is an adverse appropriate boxes below. Each question has only
True. interest and subject to Rule 3-300 of the Rules of
False. Professional Conduct.
True. 1. ■ True ■ False
7. A former lawyer will be disqualiﬁed if he has learned False. 2. ■ True ■ False
the former client’s “playbook,” or method of litigating. 3. ■ True ■ False
True. 18. A lawyer for a successful party may intervene to col-
4. ■ True ■ False
False. lect that party’s statutory fees when the action has
resulted in the enforcement of an important right affect- 5. ■ True ■ False
8. Informed written consent requires, among other ing the public interest. 6. ■ True ■ False
things, that the client be made aware of the dangers True. 7. ■ True ■ False
and possible consequences of joint representation. False.
8. ■ True ■ False
19. When a client disputes the lawyer’s fee after it 9. ■ True ■ False
has been withdrawn from the client’s trust account, the 10. ■ True ■ False
9. A lawyer must preserve the secrets of his or her lawyer must put the money back into the account until 11. ■ True ■ False
client, at every peril to himself or herself. the dispute is resolved. 12. ■ True ■ False
13. ■ True ■ False
14. ■ True ■ False
10. A lawyer can be sued for breach of ﬁduciary duty 20. A lawyer does not need to be admitted to practice 15. ■ True ■ False
and malpractice if he or she discloses confidential law in California to practice before a federal agency in 16. ■ True ■ False
client information. California.
17. ■ True ■ False
False. False. 18. ■ True ■ False
19. ■ True ■ False
11. The identity of class members is always attorney- 20. ■ True ■ False
client privileged information.
Los Angeles Lawyer March 2007 31
defendant intended to argue mistaken iden- the names, addresses, and phone numbers the report to the Las Vegas police—and to
tity—that his brother may have committed the of potential class members. Initially, the expose him to worldwide media attention
crime. The court of appeal affirmed, holding plaintiffs served an interrogatory on Tenet unless he settled the claim for a huge sum. The
the consent failed to satisfy “the exacting seeking the identity and contact informa- letter referred to the recent settlement of a
standard…calculated to ensure a legitimate tion of approximately 50,000 potential class punitive damage claim in the amount of
waiver of a defendant’s constitutional right to members, and Tenet objected. The parties “$100,000,000,” and in subsequent tele-
conﬂict-free counsel and to insulate any con- agreed to send a neutral letter to a random phone calls with Flatley’s counsel Bertram
viction from a later challenge on appeal based sample of 3,300 potential class members Fields, Mauro asked for “seven ﬁgures.”29
on the conflict.” The exacting standard selected by Tenet. The letter invited those in Flatley rejected the demand and sued Mauro
requires that: the sample to contact the plaintiffs’ lawyers. for extortion, intentional inﬂiction of emo-
• The defendant discuss the potential draw- Eighty-one responded and 49 retained the tional distress, and interference with prospec-
backs of joint representation with the defen- plaintiffs’ counsel to represent them. Tenet tive business advantage. Mauro ﬁled a motion
dant’s attorney or outside counsel. then served an interrogatory on the plaintiffs, to strike under the anti-SLAPP (Strategic
• Counsel advise the defendant of the dangers seeking the names of and contact information Lawsuit Against Public Participation) statute,30
and possible consequences of joint represen- for all class members who responded to the arguing that the prelitigation demand letter
tation in the case. neutral letter. Of the 81, 24 consented to was an exercise of his constitutionally pro-
• The defendant knows of his or her right to the disclosure of their identities, and the rest tected rights of speech and petition.
conﬂict-free representation. refused or did not respond. The superior The California Supreme Court disagreed,
• The defendant voluntarily wishes to waive court denied a motion for a protective order stating that attorneys are not exempt from lia-
that right.19 and directed the plaintiffs to provide the bility because they are engaged in profes-
information to Tenet. The Second District sional conduct, and Rule 5-100 of the
Confidentiality Court of Appeal reversed. California Rules of Professional Conduct
An attorney’s duty of conﬁdentiality is set The appellate court held that the identity prohibits attorneys from “threaten[ing] to
forth in Business and Professions Code Section of the class members did not constitute attor- present criminal, administrative, or discipli-
6068(e)(1): “It is the duty of an attorney…[t]o ney work product or, on the facts of this nary charges to obtain an advantage in a
maintain inviolate the confidence, and at case, attorney-client privileged information.25 civil dispute.”31 The court held that the
every peril to himself or herself to preserve the However, it held that disclosure of the iden- lawyer’s letter, though “half-couched in
secrets, of his or her client.” Several cases in tity of the class members would invade the legalese,” constituted criminal extortion as a
2006 explored the limits of protection for con- individuals’ right of privacy, which out- matter of law and was neither protected by
ﬁdential client information. weighed Tenet’s interest in the information. the Constitution nor the anti-SLAPP statute.32
In People v. Navarro,20 a family of car Withholding the identities would not affect In a footnote, the court noted that Mauro was
thieves was prosecuted after an anonymous Tenet’s ability to defend itself, the court con- no longer licensed to practice law, having
informant tipped off police. The defendants ﬁdently stated, since Tenet knew the identity voluntarily retired during the pendency of
moved to suppress the evidence, arguing that of the 50,000 potential class members, includ- the lawsuit.33
the police informant was their sister, who ing the 3,300 recipients of the neutral letter, A partner in the Los Angeles law firm
also happened to be their lawyer. They argued and was free to contact all of them. Moreover, Parker, Milliken, Clark, O’Hara & Samuelian
that their rights under the Fifth and Sixth the court noted that Tenet should be aware was found to have breached his fiduciary
Amendments and the statutory attorney- of the relevant facts in the case, including duty to a third party when acting as an escrow
client privilege, Evidence Code Section 952, whether it gave all of the employees proper holder in Virtanen v. O’Connell.34 The part-
were violated because the search warrant meal and rest breaks.26 Apparently alarmed ner, O’Connell, represented the buyer in a
was obtained with conﬁdential information by the implication of its analysis, the court stock sale transaction. He also agreed to act
from their attorney. Without deciding whether added: “We do not mean to suggest that as escrow holder by holding the seller’s stock
the lawyer was the informant, the Second Tenet has no right to conduct discovery in the certiﬁcates until the sale closed. Before the
District Court of Appeal rejected these argu- case.”27 conditions of the sale were met, the seller,
ments. It held that the Fifth Amendment was Virtanen, decided to terminate the sale and
not violated because the informant initiated Third-Party Liability sent a written notice rescinding the transac-
the contacts and had not acted at the behest Too much zeal on behalf of a client can give tion and demanding return of his stock.
of the government.21 Further, it ruled that the rise to liability to third parties, as a pair of Notwithstanding the notice, O’Connell pro-
Sixth Amendment was not violated because cases illustrated. In Flatley v. Mauro, 28 ceeded to close the sale and delivered the
no right to counsel arises before a defendant Michael Flatley, a popular Irish entertainer certiﬁcates to a transfer agent to effectuate the
is charged.22 Also, the court held that the known as the Lord of the Dance, fought back transfer of the stock to his client. The seller
“fruit of the poisonous tree” doctrine does not when he received a histrionic demand letter sued O’Connell and his law ﬁrm for negli-
apply to violations of evidentiary privileges, from a lawyer charging that the dancer had gence, breach of ﬁduciary duty, and conver-
so conﬁdential client information could be raped his client. Several months earlier, in sion, and recovered nearly $2 million in com-
used to obtain a search warrant. The appel- October 2002, Flatley spent a consensual pensatory damages. The court of appeal
late court noted the defendants could sue night with a woman in his Las Vegas hotel affirmed, holding that the lawyer could not
their lawyer for malpractice and breach of bedroom. The next morning, she kissed him favor his own client and disregard the rights
ﬁduciary duty and seek State Bar discipline— goodbye and said she hoped she would see of the other party to whom he owed duties
remedies that the court recognized would be him again. Soon thereafter, she called the Las as an escrow holder. Faced with conﬂicting
“a pyrrhic victory from behind bars.”23 Vegas police to report a rape but provided instructions, the lawyer must ﬁle an inter-
In Tien v. Superior Court,24 a putative insufficient information for an investigation. pleader action and cannot convert the stock
class action suit for alleged wage and hour In January 2003, her lawyer D. Dean Mauro to his client’s use. Delivering the stock to the
violations by subsidiaries of Tenet Healthcare, sent Flatley a demand letter that bluntly transfer agent was not the “functional equiv-
the parties sparred over the right to learn threatened to sue the dancer for rape—citing alent” of interpleader, as O’Connell con-
32 Los Angeles Lawyer March 2007
tended.35 The court rejected O’Connell’s “fan- years Wolff was a member of the Indigent 3-110(A) of the Rules of Professional Conduct
tastical defense” and remanded the case for Defense Program (IDP) of Sacramento (an attorney shall not intentionally, reck-
retrial of punitive damages against the County, which selected attorneys to represent lessly, or repeatedly fail to perform legal ser-
lawyer.36 parents and children in dependency matters. vices with competence), Rule 3-700(A)(1)
In 1999, the presiding judge of the juvenile (an attorney shall not withdraw without the
Bad Acts by Lawyers court decided to contract with one law ﬁrm tribunal’s permission), and Rule 3-700(A)(2)
Regrettably, some attorneys need to be
reminded that they must tell the truth to a
court. Business and Professions Code Section
6068(d) states: “It is the duty of an attor-
ney…[t]o employ, for the purpose of main-
taining the causes confided to him or her
those means only as are consistent with truth,
and never to seek to mislead the judge or
any judicial officer by an artifice or false
statement of fact or law.” Under Rule 5-200
of the Rules of Professional Conduct, mis-
leading a judge or jury makes a lawyer sub-
ject to discipline.
In Mammoth Mountain Ski Area v.
Graham, 37 a ski instructor injured by a
teenage snowboarder sued the snowboarder
and his parents for damages. The 17-year-old
admitted he was engaged in a snowball ﬁght
with his younger brother when he collided
with the instructor. The superior court granted
the defendants’ motion for summary judg-
ment based on the primary assumption of risk
doctrine—namely, that the injury resulted
from an inherent risk in the sport.38 On
appeal, the issue was whether the teenager’s
conduct was so reckless as to be totally out-
side the range of normal activity involved in
the sport and, therefore, not protected by
the assumption of risk doctrine. The appel-
late court concluded the evidence could lead
to a reasonable inference that the collision was
neither inadvertent nor unavoidable and so
held that a triable issue of fact barred sum- instead of using the IDP. Wolff’s bid to be the (an attorney shall not withdraw until taking
mary judgment.39 law ﬁrm was rejected, and one month later, steps to avoid reasonably foreseeable preju-
The court of appeal also found that a she submitted a document to the superior dice, including giving notice to the client and
serious mischaracterization of the record had court in which she attempted to resign from allowing the client time to employ other
occurred during oral argument. The defen- all of her 319 IDP-appointed cases. The pre- counsel), among other rules and statutes.
dants’ lawyer, Ross Paulson, stated that there siding judge refused to ﬁle the document and The Review Department further found that
was no evidence in the record that the snow- informed Wolff that it was not a proper Wolff’s failure to accept responsibility for
boarder who collided with the plaintiff had motion to withdraw from representation her actions as well as her “tangled web of
ever thrown a snowball, but in rebuttal, a wit- because it did not identify the cases by name excuses” demonstrated her indifference and
ness’s declaration was read stating that the or number or request a hearing date, and lack of remorse and recommended stern sanc-
snowboarder and his brother were throw- she had not informed any of her clients of her tions—including suspension from the practice
ing snowballs at each other. The court con- intent to withdraw. Indeed, she never sub- of law for 18 months, three years’ proba-
cluded that Paulson had “misrepresented the mitted a proper motion to withdraw and the tion, quarterly reports showing her compli-
record on a crucial point.”40 Noting that court never authorized her withdrawal. ance with legal ethics rules, and taking and
some appellate counsel had recently found it Nevertheless, she ceased making appearances passing the Multistate Professional Respons-
convenient to misrepresent the record, either in all cases and returned the ﬁles to the IDP. ibility Examination.43
to gain an advantage or because they were After Wolff had missed 39 appearances, Unfortunately, this was not Wolff’s only
reckless with the truth, the court declared she was ordered by the court to show cause public sanction by a court in 2006. In In re
that cavalier mischaracterizations of the why she should not be held in contempt. S.C.,44 the Third District Court of Appeal
record must cease, and directed the clerk to Ultimately, in 2000 Wolff stipulated to an found that Wolff’s appellate brief in the case—
forward a copy of the opinion to the State Bar order imposing sanctions. Four years later, the containing 76,235 words and characterized
for possible discipline under Section State Bar ﬁled a notice of disciplinary charges, by the court as “rambling and ranting” over
6068(d).41 and Wolff was found to have violated Business its 202 pages—was so egregious it warranted
Different duties were breached in In the and Professions Code Section 6068(m) (an referral to the State Bar for discipline. The
Matter of Julie L. Wolff,42 a disciplinary attorney must keep clients reasonably court wrote:
action heard by the State Bar Court. For nine informed of signiﬁcant developments), Rule This is an appeal run amok. Not only
Los Angeles Lawyer March 2007 33
does the appeal lack merit, the open- tion of the novel, and some of the views the fugitive, had improperly given away pub-
ing brief is a textbook example of expressed in it by the author, created a dis- lic property in a pending case, disclosed his
what an appellate brief should not abling conﬂict of interest and a reasonable work product, and potentially infected the
be….[The] appellants’ lawyer has man- argument that the author could not exercise jury pool with his views on the strength of the
aged to violate rules of court; misrep- her discretionary functions in an evenhanded people’s case. The Second District, however,
resent the record; base arguments on manner. Indeed, the publicity resulting from declined to recuse the entire district attorney’s
matters not in the record on appeal; fail a conviction could garner her additional roy- office because Hollywood failed to establish
to support arguments with any mean- alties, so the author had no incentive to enter an “especially persuasive” showing of a causal
ingful analysis and citation to author- into a negotiated settlement with the defen- connection between the prosecutor’s con-
ity; raise an issue that is not cognizable dant. Also, in her acknowledgements, the duct, the elected district attorney, and other
in an appeal by her client; unjustly author, identifying herself with the heroine, deputies in that office.55
challenge the integrity of the opposing demonstrated a strong bias toward the pros- In the third case,56 a different panel of the
party; make a contemptuous attack ecution and victims and characterized her Second District Court of Appeal denied a
on the trial judge; and present claims antidefendant description of the criminal jus- writ petition, thereby affirming the recusal of
of error in other ways that are contrary tice system as “trustworthy.”51 Characterizing several members of the Los Angeles district
to common sense notions of effective these actions by the author as a “single lapse attorney’s office. These attorneys had blocked
appellate advocacy….45 of judgment,” the court disqualified the the efforts of a minor charged with viola-
author in the defendant’s case but not in all tions of Penal Code Section 288.5 from gain-
Prosecutor Misconduct criminal or sexual assault cases.52 ing access to the medical and psychotherapy
Prosecutors speak not solely for the victim or On the same day as its Haraguchi decision, records of the victim, who was also a minor.
the police, or those who support them. They the same panel from the Second District The court reasoned that the prosecutors had
represent the people.46 Because prosecutors issued an opinion chastising a second deputy aligned themselves too closely with the par-
possess the power and duty to charge indi- district attorney from the Santa Barbara ents of the victim and thereby threatened the
viduals with crimes and to conduct the pros- office. Hollywood v. Superior Court 53 ability of the minor to receive a fair trial.
ecution, the attorneys who make those deci- involved Jesse James Hollywood, one of ﬁve Interestingly, the California Supreme Court
sions must not only be impartial but also young men charged with a brutal kidnap- recently granted review in Haraguchi and
maintain the appearance of impartiality.47 ping and murder. He ﬂed the country, and in Hollywood. The court granted the prosecu-
Professional misconduct may result in attor- his absence the deputy district attorney pros- tor’s petition for review in Hollywood to
ney discipline, as happened to a former ecuted his four codefendants. The four were consider three questions:
Sonoma County prosecutor in a murder trial convicted. While Hollywood was still in hid- 1) Was the trial court’s ruling subject to inde-
who was suspended for three years and given ing, a screenwriter solicited assistance from pendent review or reviewable only for an
ﬁve years’ probation for secretly coaching a the prosecutor to write a movie about the abuse of discretion?
coroner on how to answer questions con- crime. The prosecutor gave the screenwriter 2) Was recusal appropriate under either stan-
cerning past employment and failing to turn his trial notebook and various ﬁles relating to dard?
over or disclose the existence of a videotape the investigation, including photographs, 3) If recusal was required, was it error not to
of the coaching session.48 In addition, if the tapes, police and probation reports, psychi- recuse the entire district attorney’s office?
circumstances demonstrate that a prosecutor atric reports, and possibly even rap sheets. The On its own motion, the court granted
cannot exercise his or her discretionary func- prosecutor received no money for his assis- review in Haraguchi to determine the appro-
tion in an evenhanded manner so that it is tance. He helped the screenwriter because priate standard of review and whether recusal
unlikely the defendant will receive a fair trial, the prosecutor hoped that widespread pub- was appropriate under either standard.
the prosecutor may be recused pursuant to licity regarding the crime might lead to the
Penal Code Section 1424. In three opinions capture of Hollywood. The ﬁlm, although Getting Paid
published in 2006, the Second District Court purportedly factually accurate, used pseu- In 2004, the California Supreme Court in
of Appeal disqualiﬁed deputy district attor- donyms. It painted the fugitive as manipula- Fletcher v. Davis concluded—to the surprise
neys for misconduct. tive, vicious, selﬁsh, and without any redeem- of many—that a lawyer’s charging lien (that
The Second District issued two decisions ing characteristics—a portrayal described as is, a lien upon a fund or judgment the lawyer
based on events in the Santa Barbara district a “public viliﬁcation of a defendant in a case receives to ensure compensation for recov-
attorney’s office. In Haraguchi v. Superior which is yet to be tried.” 54 The credits ering the fund or judgment) created at the
Court,49 the prosecutor wrote a novel that expressed gratitude to the prosecutor and commencement of an hourly fee engagement
was published in early 2006. The novel his office for their assistance. constitutes an adverse interest within the
described the exploits of the heroine—like the Five years after the crime and shortly meaning of Rule 3-300 of the Rules of
author, a female Santa Barbara deputy district before the release of the film, Hollywood Professional Conduct.57 As a result, for this
attorney—as she prosecuted a rape by intox- was arrested in Brazil, deported to California, type of lien to be enforceable, the lawyer
ication case. The plot bore several similarities and faced prosecution on felony murder must comply with all the requirements of
to a rape by intoxication case that the author charges as the ﬁlm was being released. The Rule 3-300—including, for example, advis-
was prosecuting against Haraguchi. As a trial court denied the defendant’s motion to ing the prospective client that he or she may
result, Haraguchi moved to recuse her and the recuse the prosecutor and his entire office. The seek the advice of yet another lawyer about
entire district attorney’s office. The trial court Second District initially denied the defen- the lien and obtaining the client’s written
denied the motion, but the Second District dant’s writ petition. However, the California consent. In Fletcher, the agreement between
issued a writ instructing the trial court to Supreme Court granted review and directed the lawyer and the corporate client was oral.
disqualify the author only. Expressing its the court of appeal to issue an order to show As a result, the supreme court concluded that
hope that “this case of ﬁrst impression will cause. The Second District proceeded to the lawyer’s charging lien was invalid.
make a case of lasting impression,”50 the reevaluate the case and issue the writ, ﬁnding During 2006, the State Bar’s Committee
Second District reasoned that the publica- that the prosecutor, in his zeal to apprehend on Professional Responsibility and Conduct
34 Los Angeles Lawyer March 2007
(COPRAC) issued an opinion on an issue retainer as security for the lawyer’s fee. In Rus, lawyer refused, claiming that his fees
not addressed in Fletcher—whether a charg- Milliband & Smith PC v. Yoo,60 a bank- amounted to roughly $50,000. In light of
ing lien in a contingent fee case constitutes an ruptcy appellate panel concluded that a pre- the conﬂict, the lawyer withdrew from the
adverse interest within the meaning of Rule petition security retainer, properly disclosed case but still objected to the settlement. The
3-300. 58 In Formal Opinion 2006-170, and documented, is not subject to disgorge- mother thereafter settled with the county but
COPRAC concluded that it does not. ment. The panel also held that determining had to indemnify it against the possibility
COPRAC distinguished Fletcher because whether a professional with a security retainer that her former lawyer might pursue a claim
of material differences between hourly and is “disinterested” within the meaning of the for fees. The former lawyer objected when the
contingent fee arrangements. A charging lien Bankruptcy Code or otherwise impaired by district court dismissed the case upon the
is almost always found in contingent fee con- a conﬂict of interest is necessarily fact-speciﬁc. settlement, but the district court denied the
tracts and is generally uncontroversial, but it However, a ﬁnding of disinterest is not in lawyer’s objection for lack of standing. The
is relatively rare in a hourly fee agreement. itself disqualifying.61 Ninth Circuit affirmed. Citing cases from
Also, the percentage fee owed in a contingent Code of Civil Procedure Section 1021.5 the U.S. Supreme Court and the Ninth Circuit,
fee case is ﬁxed at the commencement of the empowers a court to “award attorneys’ fees the court reasoned that the provision per-
engagement, which reduces the likelihood of to a successful party against one or more mitting a plaintiff prevailing on a Section
fee disputes that could cause a delay in a opposing parties in any action which has 1983 claim to recover attorney’s fees vests the
client’s recovery. Business and Professions resulted in the enforcement of an important right in the client, not the lawyer. Also, a
Code Section 6147 sets forth several require- right affecting the public interest….” Does the claim for fees, which is derivative of a claim
ments and client protections for contingent fee lawyer of a prevailing party have a right to under Section 1983, cannot be assigned under
contracts that are not applicable to hourly intervene in litigation to move for statutory California law. Therefore, the court con-
agreements. Finally, COPRAC reasoned that fees? Courts have expressed different views on cluded that the assignment in the retainer
requiring compliance with Rule 3-300 in this. In Lindelli v. Town of San Anselmo,62 the agreement was void as a matter of law.68
contingency fee contracts would cause clients First District Court of Appeal concluded that Regarding ﬁnancial arrangements between
to seek independent consultations without the word “party” in Section 1021.5 includes lawyers and their clients, LACBA’s Profes-
any discernible beneﬁt because charging liens a litigant and the litigant’s lawyer. Thus, in sional Responsibility and Ethics Committee
are so prevalent and well accepted in con- Lindelli, the lawyers for the prevailing peti- reached two conclusions in Formal Opinion
tingent fee contracts. To date, neither the tioners in litigation over a voter referendum No. 517. First, a lawyer may agree to advance
supreme court nor the intermediate appellate were permitted to intervene for the purpose the reasonable expenses of prosecuting or
courts have addressed the distinction adopted of filing a motion for statutory fees, even defending a client’s matter and waive the
by COPRAC. though the petitioners themselves had decided right of repayment by the client if there is no
Under certain circumstances, a lawyer to accept the town’s settlement without ﬁling recovery. Second, at the inception of the rep-
seeking payment for fees may also have an a motion for statutory fees. In reaching this resentation or during the course of the liti-
equitable lien against a judgment in favor of decision, the court of appeal disagreed with gation, a lawyer may agree to indemnify the
his or her client. In County of Los Angeles v. a 2004 Ninth Circuit holding that Section client for court-ordered costs if the client is
Construction Laborers Trust Funds for South- 1021.5 “confers no legally enforceable inter- not the prevailing party. The committee rea-
ern California Administrative Company,59 a est on the attorneys themselves.”63 The First soned that Rule 4-210 of the Rules of Pro-
lawyer represented a construction company District reasoned that denying a lawyer the fessional Conduct permits a lawyer to agree
in various matters, including a dispute with right to intervene and move for fees would to pay a client’s reasonable litigation costs,
the County of Los Angeles. The lawyer and “dilute section 1021.5’s effectiveness at and indemniﬁcation is not materially differ-
his client had a written fee agreement giving encouraging counsel to undertake litigation ent from advancing costs. Also, the commit-
the lawyer a lien on the client’s recovery not enforcing important public policies” and tee reasoned that these agreements did not cre-
in the county dispute but in a separate federal “provide a windfall to the wrongdoing defen- ate an adverse interest within the meaning of
court proceeding. The client lost the federal dant, at the expense of the attorneys who Rule 3-310.69
case, but in the other matter the lawyer nego- labored in the public interest.”64 The court
tiated a settlement in which his client was to warned, however, that a trial court might be Client Trust Accounts
receive $255,361 from the county. Although justiﬁed in denying intervention to a lawyer Rule 4-100 of the Rules of Professional
his attorney’s lien did not apply against this seeking to move for fees when intervention Conduct requires all funds received or held for
settlement payment, the lawyer sent the would interfere with settlement.65 the beneﬁt of a client to be deposited in a trust
county a letter advising the county that the A provision in an engagement letter irrev- account and not commingled with the attor-
lawyer had a lien on the settlement proceeds. ocably assigning to the lawyer the client’s ney’s personal or office funds. Indeed, Rule
The lawyer copied his client’s president on the rights to a statutory fee award created an 4-100(A)(2) states that any portion of the
letter. In the meantime, a judgment creditor obstacle to settlement in Pony v. County of funds belonging to the lawyer must be with-
of the client also claimed a right to the set- Los Angeles.66 The lawyer ﬁled an action on drawn “at the earliest reasonable time” after
tlement proceeds. Faced with conflicting behalf of the plaintiff’s minor daughter against the member’s interest becomes fixed. The
claims, the county interpleaded the funds. the County of Los Angeles for intentional rule further states that if the lawyer’s right to
The court of appeal concluded that the lawyer torts and violations of 42 U.S. Code Section the funds is disputed by the client, the dis-
had an equitable lien on the settlement funds, 1983. In the retainer agreement, the mother puted funds may not be withdrawn from the
which attached when the lawyer sent the let- irrevocably assigned to the lawyer her rights trust account until the dispute is finally
ter advising the county of the lien. Because the “to waive, apply for, obtain judgment upon, resolved. If an attorney has withdrawn his or
lawyer’s equitable lien attached before the collect, and/or receive any statutory attor- her fee from the trust account, and the client
judgment creditor’s lien, the lawyer’s lien had ney’s fee award” on the claims.67 During the later disputes the fee, does the lawyer have to
priority. litigation, the county offered to settle for put the money back into the account? In its
It is not unusual for a lawyer working on $29,999.99, including attorney’s fees. The Formal Opinion No. 2006-171, COPRAC
an hourly basis to require the client to pay a mother wanted to accept the amount. The said no. Having properly withdrawn the fee,
Los Angeles Lawyer March 2007 35
the lawyer neither received nor held the funds
for the beneﬁt of the client. At the moment
of withdrawal, the funds were the attorney’s
personal property. COPRAC noted there is no
authority to suggest that funds regain trust
account status simply because the client later
expresses remorse, regret, or other dissatis-
faction with the attorney’s fee.70
Unauthorized Practice of Law
In Benninghoff v. Superior Court71—a deci-
sion that serves as a coda to the Federal
Circuit Court of Appeals’ 2005 decision in
Augustine v. Department of Veterans
Affairs 72 —the Fourth District Court of
Appeal considered the State Bar’s jurisdic-
tion over a former lawyer’s practice before
state and federal administrative agencies.
Following his guilty plea to several federal
felonies, Benninghoff resigned from the State
Bar with disciplinary charges pending against
him. He began to represent persons before
administrative agencies, styling himself a
“professional advocate” and “lay represen-
tative,” until the State Bar charged him with
the illegal practice of law, and a superior
court assumed jurisdiction over his practice
under Business and Professions Code Section
6180.73 In his petition for an extraordinary
writ, Benninghoff argued that laypeople may
represent parties in state administrative pro-
ceedings, but the court of appeal distinguished
between “true laypeople” and “defrocked
lawyers” who have lost their bar member-
ship.74 It concluded that Benninghoff was
practicing law by representing parties in state
administrative proceedings—and the supe-
rior court had not abused its discretion in
assuming jurisdiction over Benninghoff’s
The appellate court reached a different
conclusion regarding Benninghoff’s practice
before federal agencies. Citing Birbrower,
Montalbano, Condon & Frank v. Superior
Court76—the seminal California case gov-
erning the unauthorized practice of law—
the Benninghoff court stated that the State Bar
Act does not regulate practice before U.S.
courts and, more speciﬁcally, state law can-
not regulate the right of federal agencies to
control who practices before them.77 There-
fore, the superior court had erred by assum-
ing jurisdiction over Benninghoff’s federal
practice, and the appellate court granted a
writ of mandate requiring the State Bar to
return any seized materials regarding his fed-
Under Rule 3-110 of the Rules of Professional
Conduct, a lawyer has an ethical obligation
to perform legal services with competence,
which means applying 1) diligence, 2) learn-
ing and skill, and 3) the mental, emotional,
36 Los Angeles Lawyer March 2007
and physical ability reasonably necessary for
the performance of his or her services.79 In
Formal Opinion No. 06-441, the ABA
Standing Committee on Ethics and
Professional Responsibility analyzed similar,
although not identical, provisions on lawyer
competence in the Model Rules of
Professional Conduct in the context of rep-
resenting indigent persons charged with crim-
Although neither the Model Rules nor
ABA ethics opinions construing the Model
Rules are binding in California, ABA Formal
Opinion 06-441 makes several noteworthy
comments. It conﬁrms that a lawyer’s duty of
competence does not vary based on the client’s
net worth or the lawyer’s caseload.80 A lawyer
owes a duty of competence to all clients. If the
lawyer’s workload is such that he or she is
unable to meet the basic ethical obligations
required in the representation of a client, the
lawyer must not continue the representation
of that client—or, if the representation has not
yet begun, the lawyer must decline the rep-
resentation.81 If the lawyer works for the
public defender’s office, the lawyer must ask
his or her supervisor for assistance and, if nec-
essary, continue to advance up the chain of
command within the office until the lawyer
has obtained relief or has sought relief from
the head of the office. If the office head’s
response is not reasonable, the public defender
must take further action, which might include
appealing to the office’s governing board or
ﬁling a motion with the court for permis-
sion to withdraw.82
Revision of the Rules of Professional
During 2006, the Commission on the
Revision of the Rules of Professional Conduct
formally published for public comment its ﬁrst
installment of proposed revisions. The
response included numerous comments in
writing and during scheduled public meetings
throughout the state. The commission is
expected to consider the comments and pub-
lish successive sets of revised rules in the
years to come.83 ■
1 Ex-Ethics Counsel Indicted in HP Privacy Scandal,
ABA J. eReport, Oct. 6, 2006, at www.abanet.org
2 HP Probe Shifts to Senior Counsel, L.A. DAILY J., Sept.
3 Web Error Reveals Censure of U.S. Judge, L.A. TIMES,
Dec. 23, 2006; Some System Failure in U.S. Judge
Oversight, ABA J. eReport, Sept. 29, 2006;
Congressman’s Gambit Puts Judge on Path to
Impeachment, L.A. DAILY J., July 19, 2006.
4 U.S. Grand Jury Indicts Milberg Weiss, L.A. DAILY
J., May 19, 2006.
5 Lawyer Indicted in PI Inquiry, L.A. TIMES, Feb. 16,
6 Principles of Federal Prosecution of Business
Organizations, Memorandum from Paul J. McNulty,
Los Angeles Lawyer March 2007 37
Deputy Attorney General, to Heads of Department 17 Fremont, 143 Cal. App. 4th at 69; Faughn, 145 34 Virtanen v. O’Connell, 140 Cal. App. 4th 688
Components and United States Attorneys; Statement Cal. App. 4th at 607. (2006).
by ABA President Karen J. Mathis, Dec. 12, 2006, at 18 People v. Baylis, 139 Cal. App. 4th 1054 (2006). 35 Id. at 695-99.
www.abanet.org/abanet/media/statement.cfm. 19 Id. at 1068. 36 Id. at 717.
7 The U.S. Sentencing Commission, at http://ussc.gov 20 People v. Navarro, 138 Cal. App. 4th 146 (2006). 37 Mammoth Mountain Ski Area v. Graham, 135 Cal.
/guidelin.htm. 21 Id. at 160-61. App. 4th 1367 (2006).
8 BUS. & PROF. CODE §6068(e)(1). 22 Id. at 157. 38 Id. at 1369.
9 City & County of San Francisco v. Cobra Solutions, 23 Id. at 162. 39 Id. at 1373-74.
Inc., 38 Cal. 4th 839 (2006). 24 Tien v. Superior Court, 139 Cal. App. 4th 528 40 Id. at 1375.
10 Id. at 853-54. (2006). 41 Id. at 1374, 1376.
11 Id. at 850 n.2. 25 Id. at 536, 537-38. 42 In the Matter of Julie L. Wolff, __ Cal. State Bar Ct.
12 Id. at 855 (citing ABA Committee on Ethics & 26 Id. at 540. Rptr. __, 2006 DJDAR 16750 (Review Dep’t of the
Professional Responsibility, Formal Op. No. 342 27 Id. at n.8. State Bar Ct., Dec. 21, 2006).
(1975)). 28 Flatley v. Mauro, 39 Cal. 4th 299 (2006). 43 Id. at 16759.
13 Dino v. Pelayo, 145 Cal. App. 4th 347 (2006). 29 Id. at 307-09, app. A. 44 In re S.C., 138 Cal. App. 4th 396 (2006).
14 Fremont Indem. Co. v. Fremont Gen. Corp., 143 Cal. 30 CODE CIV. PROC. §425.16. 45 Id. at 400.
App. 4th 50 (2006). 31 Flatley, 39 Cal. 4th at 327. 46 See People v. Superior Court (Humberto S.), 145 Cal.
15 Faughn v. Perez, 145 Cal. App. 4th 592 (2006). 32 Id. at 330, 333. App. 4th 32, 38 (2006).
16 Id. at 610. 33 Id. at 311 n.6. 47 Id.
48 See Bar Suspends Ex-DA for Three Years, L.A.
DAILY J., Aug. 3, 2006.
49 Haraguchi v. Superior Court, 143 Cal. App. 4th
846 (2006), review granted.
50 Id. at 848.
51 Id. at 856.
52 Id. at 857 n.5.
53 Hollywood v. Superior Court, 143 Cal. App. 4th 858
(2006), review granted.
54 Id. at 868.
55 Id. at 870.
56 People v. Superior Court (Humberto S.), 145 Cal.
App. 4th 32 (2006).
57 Fletcher v. Davis, 33 Cal. 4th 61 (2004).
58 State Bar of California, Standing Committee on
Professional Responsibility & Conduct, Formal Op.
59 County of Los Angeles v. Construction Laborers
Trust Funds for S. Cal. Admin. Co., 137 Cal. App. 4th
60 Rus, Milliband & Smith PC v. Yoo, 339 B.R. 730
(Bankr. C.D. Cal. 2006).
61 Id. at 740.
62 Lindelli v. Town of San Anselmo, 139 Cal. App. 4th
63 Id. at 1513 (citing Churchill Vill. v. General Elec.,
361 F. 3d 566, 578-80 (9th Cir. 2004)).
64 Id. at 1512-13.
65 Id. at 1513 n.10.
66 Pony v. County of Los Angeles, 433 F. 3d 1138 (9th
67 Id. at 1140.
68 Id. at 1143-44.
69 Los Angeles County Bar Association, Professional
Responsibility & Ethics Committee, Formal Op. No.
70 State Bar of California, Standing Committee on
Professional Responsibility & Conduct, Formal Op.
71 Benninghoff v. Superior Court, 136 Cal. App. 4th 61
72 Augustine v. Department of Veterans Affairs, 429 F.
3d 1334 (Fed. Cir. 2005).
73 Benninghoff, 136 Cal. App. 4th at 64-66.
74 Id. at 67-69.
75 Id. at 71.
76 Birbrower, Montalbano, Condon & Frank v.
Superior Court, 17 Cal. 4th 119 (1998).
77 Benninghoff, 136 Cal. App. 4th at 74.
78 Id. at 75.
79 CAL. RULES OF PROF’L CONDUCT R. 3-110.
80 ABA Committee on Ethics & Prof’l Responsibility,
Formal Op. 06-411, at 3.
81 Id. at 4.
82 Id. at 6.
83 For the proposed new rules and a schedule of the
commission’s meetings, see http://www.calbar.ca.gov.
38 Los Angeles Lawyer March 2007