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					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




2006
Bad acts by both
private attorneys
and prosecutors spurred decisions
in legal ethics last year
                                                          Ethics
                                                            Roundup
2006
                             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
                                                                                                                           Name
 Continuing Legal Education legal ethics credit by the State Bar of California in the amount of 1 hour.
                                                                                                                           Law Firm/Organization

1. All lawyers owe their current clients a duty of loyalty        True.
                                                                                                                           Address
and their current and former clients a duty of confi-              False.
dentiality.                                                                                                                City
      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.
                                                                                                                           Phone
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.                                                      True.
                                                                  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.                                                       True.
                                                                  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
                                                                                                                           one answer.
     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
     True.
                                                             19. When a client disputes the lawyer’s fee after it          9.       ■ True         ■ False
     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
     True.                                                        True.
                                                                                                                           13.      ■ True         ■ False
     False.                                                       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
     True.                                                        True.
     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
RICHARD EWING




                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
                                   state practice.75
                                       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-
                                   eral practice.78

                                   Competence
                                   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-
inal offenses.
    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
Conduct
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
/journal/ereport/oc6hp.html.
2 HP Probe Shifts to Senior Counsel, L.A. DAILY J., Sept.

26, 2006.
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,

2006.
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.
                                                                                                              2006-170.
                                                                                                              59 County of Los Angeles v. Construction Laborers

                                                                                                              Trust Funds for S. Cal. Admin. Co., 137 Cal. App. 4th
                                                                                                              410 (2006).
                                                                                                              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

                                                                                                              1499 (2006).
                                                                                                              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

                                                                                                              Cir. 2006).
                                                                                                              67 Id. at 1140.
                                                                                                              68 Id. at 1143-44.
                                                                                                              69 Los Angeles County Bar Association, Professional

                                                                                                              Responsibility & Ethics Committee, Formal Op. No.
                                                                                                              517.
                                                                                                              70 State Bar of California, Standing Committee on

                                                                                                              Professional Responsibility & Conduct, Formal Op.
                                                                                                              No. 2006-171.
                                                                                                              71 Benninghoff v. Superior Court, 136 Cal. App. 4th 61

                                                                                                              (2006).
                                                                                                              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

				
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