By David C. Carr
The California Rules of Professional Conduct (Rules) are intended to provide standards for the imposition of professional discipline on lawyers in California (Rule 1.0.1.) But in practice the Rules are applied in other contexts, such as legal malpractice, fee disputes and disqualification of counsel in court, a reality acknowledged by Comment 1 to Rule 1.0.1:
By Alara Chilton
California’s new Rules of Professional Conduct went into effect November 1, 2018. This article will examine some of the ethical considerations of Rule 1.5 (Fees for Legal Services) and discuss some of the best practices for compliance.
With the November 1, 2018 effective date for California’s new Rules of Professional Conduct fast approaching, you may be wondering how new Rule 1.1 [Competence] and new Rule 1.3 [Diligence] will affect your practice. How do these rules differ from one another and what do they require of practitioners? Here is a brief look at what attorneys need to know about these two new rules.
New Rule 1.1 Will Replace Rule 3-110
Rule 1.1 [Competence] will replace current Rule 3-110 [Failing to Act Competently]. This new rule states “[a] lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” (Rules of Prof. Conduct, New Rule 1.1(a).)
With the exception of the phrase, “with gross negligence,” Rule 1.1 keeps the text of Rule 3-110(A) unchanged in order to maintain California’s longstanding legal standard of barring “intentional, reckless or repeated acts of incompetence.” (Executive Summary for Proposed Rule 1.1, State Bar of California Commission for the Revision of the Rules of Professional Conduct (Feb. 2016).)
Under new Rule 1.1(a), attorneys may now be disciplined for a single act of gross negligence. This new Rule 1.1 adds the phrase, “with gross negligence,” in order to distinguish an act of “ordinary negligence.” Indeed, many State Bar Court decisions have declined to find that a single act of negligence amounts to a violation of Rule 3-110(A). (See In Matter of Riley (Rev. Dept. 1994) 3 Cal. State Bar Ct. Rptr. 91, 97 [failure to pay client’s medical bill constituted negligence and not failure to act competently].) (See also In Matter of Respondent
P (Rev. Dept. 2000) 2 Cal. State Bar Ct. Rptr. 622, 633;
I prefer getting documents and taking depositions as the principal means of discovery in most any case. If done right, the documents-then-depositions, with limited written discovery, approach is more cost-efficient and effective than any written discovery. Litigators, myself at times included, spend far too much time fighting over written discovery. We get locked in these little battles, these time-consuming discovery sideshows, driven by competitive instincts, by ego, by a desire to make the other side spend money, or even, at times, regretfully, by client animus towards the other side. These battles take on a life of their own, where just winning the battle, and not getting the discovery we think we want, becomes the all-consuming reason for the battle. This is not always the case, but if we are honest about it, we must admit that many written discovery disputes are more about the battle than they are about the discovery. Written discovery surely has its place in modern litigation and, at times, is well worth the fight to get it. But, a great deal of the time, it is not. With those comments as the backdrop, I offer up some suggested prescriptions for the ills that often infect our written discovery efforts – the Discovery Rules!
Rule 1:
Before proceeding with written discovery, simply and seriously consider whether it is worth the effort.
By David Carr
There is probably no bad time to discuss the ethics of extortionate demand letters, but this time may be better than most. These ethics may seem a little paradoxical, much like the crime of extortion itself – how can I be criminally liable for threatening to do something that is perfectly legal for me to do? But a close reading of authority shows that lines can be drawn that an attorney should not cross.
Criminal extortion is defined by Penal Code § 518 as “the obtaining of property or other consideration from another, with his or her consent … induced by a wrongful use of force or fear….” Attorneys are in the business of obtaining property on behalf of clients, and they often do so by utilizing means that employ some types of force and are fearful in their effect. At the same time, attorneys are subject to the principles of extortion, depending on whether their use of force or fear was the “wrongful” type.
How to begin to draw that line? We can start with a specific Rule of Professional Conduct, Rule 5-100, which forbids an attorney from threatening to present criminal, administrative or discipline charges to gain an advantage in a civil dispute.
Notice that Rule 5-100 does not forbid the threat of civil litigation to gain an advantage in a civil dispute. Rule 5-100 can be read in light of Penal Code § 519, which defines the type of fear that “may” support a finding of extortion: “1. To do an unlawful injury to the person or property of the individual threatened or of a third person. 2. To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime. 3. To expose, or to impute to him, her, or them a deformity, disgrace, or crime. 4. To expose a secret affecting him, her, or them. 5. To report his, her, or their immigration status or suspected immigration status.”
Section 519’s use of the word “may” suggests this isn’t a definitive list of all the types of “force or fear” that might be “wrongful” and thus extortionate. Rather, the list included in Penal Code § 519 is representative of the characteristics that may serve to violate the statute.
Case law also illuminates the distinction, and the widely read case of Flatley v. Mauro (2006) 39 Cal.4th 299 is essential. Former Illinois attorney Mauro sent a demand letter to Irish dancer and entertainer Michael Flatley, famed as the “Lord of the Dance,” in Mauro’s capacity as the attorney for a woman who accused Flatley of raping her.
The letter demanded $100,000,000.00 and threatened that “all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information will be exposed … [w]e are positive the media worldwide will enjoy what they find,” that “all pertinent information and documentation … shall immediately [be] turned over to any and all appropriate authorities ” and that along with “the filing of suit, press releases will be disseminated to various media sources, including but not limited to” a list of about two dozen different news media.
There was also a conversation Mauro had with Flatley’s attorney Bert Fields, wherein Mauro stated the story would follow Flatley wherever he went and that he would “destroy” him. Flatley then filed an action against Mauro in California for extortion and defamation. Mauro filed a SLAPP motion that was denied. After the Court of Appeal affirmed the denial, Mauro tried his luck with the California Supreme Court. The Supreme Court found Mauro’s conduct extortionate as a matter of law, not protected conduct or a SLAPP suit and, citing Libarian v. State Bar (1952) 38 Cal.3d 328, imbued with moral turpitude.
A more recent Court of Appeal decision examining a demand letter, Malin v. Singer (2013) 217 Cal.App.4th 1283, comes out the other way, finding the demand letter protected petitioning activity, not extortionate, and protected by the litigation privilege (Civil Code §47.) Attorney Singer sent a demand letter to his client’s partner in a limited liability company (LLC), alleging conversion and breach of contract. Singer specifically contended the partner had sexual liaisons with older men he called by nicknames such as “Uncle” and “Dad.” He enclosed a photograph of one of the men, noting that he was a judge, and provided a complaint with blank spaces for their names. Singer stated the complaint filed in the trial court would disclose the men’s names.
In Malin, the trial court found the letter extortionate and denied a SLAPP motion. In its decision, the Court of Appeal found the demand letter was SLAPP-protected petitioning activity and subject to the litigation privilege (Civil Code §47), observing the men were not members of partner’s family and the demand letter included claims that partner embezzled money from the LLC and used the LLC’s resources to facilitate the liaisons and to communicate with the men. The Supreme Court denied review.
The line drawn by Flatley and Mailin is that you can raise some ugly allegations in a demand letter provided the contemplated disclosure of the bad stuff takes place solely in the context of litigation and such disclosure is necessary to prove your case. Such a use of legal “force” is not “wrongful” for extortion purposes.
In the end, Bus. & Prof. Code §6068(f) might provide the pithiest guidance of all: “It is the duty of the attorney … [t]o … advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.”
David Carr is an attorney at law.
This article was originally published in the March 2018 issue of For the Record, the SDCBA’s publication for new lawyers.
No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.
Properly withdrawing from representation pursuant to applicable rules, ethics opinions and case law can reduce the risk of a legal malpractice claim. On November 1, 2018, California’s revised Rules of Professional Conduct will become effective, and the current Rule 3-700 governing withdrawal will be replaced with new Rule 1.16.
A lawyer must take “reasonable steps” to avoid prejudice to the client when withdrawing from representation, provide sufficient notice to the client, and seek permission, as appropriate, if the matter is before a tribunal. When seeking permission to withdraw, the attorney must avoid disclosing confidential client information. COPRAC Form. Opn. 2015-192, citing Cal. Rules of Prof. Cond., Rule 3-100; Cal. Bus & Prof. Code § 6068(e).
Withdrawal is mandatory where the client terminates the representation. Fracasse v. Brent(1972) 6 Cal.3d 784. The new Rule 1.16 will so provide.
Withdrawal is also required where continued representation will require the lawyer to violate the Rules of Professional Conduct or the State Bar Act. The lawyer must withdraw where the client is taking a position without probable cause and for the purpose of harassing an adversary, an evaluation that must be made carefully. See, e.g., Matter of Hickey (1990) 50 Cal.3d 571.
According to a recent ABA report, “To be a good lawyer is to be a healthy lawyer.” Where it is “unreasonably difficult” to carry on the representation of a client effectively due to a lawyer’s mental or physical difficulties, withdrawal is required. Where such circumstances make it “difficult,” withdrawal is permissive. Withdrawal due to personal circumstances is highly situational. See, Nehad v. Mukasey (9th Cir. 2008) 535 F.3d 962.
In other situations, withdrawal is permissive. In the most common situation, where the client consents, the attorney may withdraw. Where the client fails to pay fees or expenses, withdrawal is permissive. But, under the new Rule 1.16, the lawyer must first give the client a reasonable warning.
Permissive withdrawal is also available where the client insists on presenting a claim that is not meritorious, or pursues a course of conduct that is criminal or fraudulent. Unreasonable difficulties in working with clients and co-counsel can also justify withdrawal. The breakdown of the attorney client relationship makes withdrawal permissible. See, Estate of Falco v. Decker (1987) 188 Cal. App. 3d 1004.
In the absence of a protective order or non-disclosure agreement, an attorney withdrawing from representation must promptly release, at the request of the client, all “client papers and property.” This includes correspondence to and from the client, opposing counsel and witnesses, pleadings filed with the court, deposition transcripts, experts’ reports and other writings, exhibits, and physical evidence, whether in tangible or electronic or other form.”
Client papers and property must be released regardless of whether the client has paid for them. This includes work product for which the client has paid, but may not include work product not previously communicated to the client, unless necessary to avoid prejudice to the client. Attorneys are obligated ethically to release electronic versions of the client file. COPRAC Form. Opn. 2007-174. The lawyer may retain copies of client papers made at the lawyer’s own expense.
An important and final step in the withdrawal process requires that the lawyer promptly refund any unearned fee or expense paid in advance. Any funds in dispute must be retained in the client trust account. Cal. Rules of Prof. Cond., Rule 4-100.
By following the applicable law, a lawyer can protect the interests of a client against potential prejudice while the lawyer is withdrawing from the representation. In addition, compliance with the rules governing withdrawal can reduce client complaints and protect against possible discipline, and may also reduce the likelihood of a malpractice claim being made.
Carole Buckner is a partner and general counsel with Procopio, Cory, Hargreaves & Savitch LLP.
This article first appeared in the July 2018 issue of For the Record, the SDCBA’s publication for new lawyers.
No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.
