By David Majchrzak and Edward McIntyre
20.1.6 In the Matter of Foster (2020) Not Published Case No. 17-O-00414 – State Bar Court of California Review Department (March 16, 2020)
Issue:
Does the failure to disclose in writing relationships in the professional swimming world to a professional swimmer client subject a lawyer to discipline?
Analysis:
Yes. While representing a professional swimmer, Foster failed to give the client written disclosure of his long-standing and substantial relationships in the professional swimming community. His client was in a contract dispute with USA Swimming, an organization within which Foster maintained close professional relationships. He had also previously represented the USA Swimming coach who had made the contract offer to Foster’s client. Foster also failed to disclose to his client that he had told a USA Swimming representative that, if the contract issue was not resolved, he would never sue the organization because he had “too many friends” in the organization. In addition, without his client’s consent, Foster revealed information about his client’s precarious financial situation to a lawyer at USA Swimming.
The Hearing Department judge found, and the Review Department agreed, that Foster violated former rule 3-310 (B)(1) when he agreed to represent the swimmer without giving her written disclosure of his personal and professional relationships with opposing parties—USA Swimming and one of its officials. Both courts also found a violation of rule 3-310(B)(3) in the failure to give written disclosure of a professional relationship with a person who could be substantially affected by resolution of the matter. They also found Foster violated Business and Professions Code section 6868, subdivision (e)(1)—duty to maintain the confidences and preserve the secrets of a client—when he revealed that she was “out of money” and “absolutely broke.” The Review Department rejected Foster’s argument that his client’s agent’s instruction permitted him to reveal her financial situation and that it was generally known. The Review Department also found a violation of section 6068, subdivision (e)(1), when Foster forwarded an email from his client with her evaluation of a pending settlement offer from USA Swimming. It rejected his argument that she wanted him to discuss settlement issues with USA Swimming. The State Bar Court also found a violation of former rule 3-310 (E) when Foster failed to obtain his former client’s informed consent to his representation of her former agent, when he advised her to waive claims against that agent in her efforts to obtain a copy of her Athlete Representation Agreement.
Weighing aggravating and mitigating factors and applying the Standards for Attorney Sanctions, the Review Department recommended a 60-day actual suspension from practice, two years of probation with additional conditions.
David Majchrzak and Edward McIntyre are co-editors of Ethics Quarterly.