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  Los Angeles Lawyer
The Magazine of the Los Angeles County Bar Association
  April 2006     Vol. 29, No. 2


MCLE Article: 2005 Ethics Roundup

New technologies add a wrinkle to the ongoing ethical concerns of the legal profession

By John W. Amberg and Jon L. Rewinski

John W. Amberg is a partner in the Santa Monica office of Bryan Cave LLP, and Jon L. Rewinski is a shareholder in the Los Angeles office of Heller Ehrman LLP. Both are former chairs and current members of the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee. Amberg also is vice chair of the State Bar of California's Standing Committee on Professional Responsibility and Conduct.


By reading this article and answering the accompanying test questions, you can earn one MCLE ethics credit. To apply for credit, please follow the instructions on the test.


Professional ethics made headlines last year. While lawmakers debated shifting legal definitions of torture, it was revealed that lawyers working for the Bush Administration had approved, in classified opinions, an executive order authorizing warrantless spying within the United States. The lawyers did so despite the U.S. Supreme Court's rejection, 30 years earlier, of similar presidential claims on national security grounds.1 While still a Supreme Court nominee, Samuel A. Alito Jr. explained his failure to recuse himself from cases involving the Vanguard Group and Smith Barney by saying that his pledge during his 1990 confirmation hearings to the court of appeals to avoid conflicts of interest involving the two financial entities had been "unduly restrictive."2 The American Bar Association, after encouraging lawyer whistle-blowing on corporate malfeasance in 2003, backtracked in 2005 by opposing the government's routine practice of seeking waivers of the attorney-client privilege and work product doctrine.3

In California, a federal judge in Fresno sanctioned an entire law firm for violating its ethical duties to the court. This decision arose from the unsuccessful defense by the lawyers of a school district sued by parents seeking special educational services for their disabled son. In a blistering 83-page opinion detailing the firm's intentional misstatements of law and facts, obstructive conduct, and bad faith, the court asked rhetorically whether "a culture of misrepresentation and deception exists at Lozano Smith," and ordered all 80 lawyers in seven offices of the firm to attend ethics training.4 After a Los Angeles grand jury indicted a retired lawyer for alleging taking more than $2 million in illegal kickbacks to act as a named plaintiff in dozens of securities class actions brought by Milberg Weiss Bershad Hynes & Lerach, prosecutors said that the lawyer attempted to launder the payments by asking his firm not to deposit the monies in its client trust account and to pay his personal expenses, such as car payments and charitable contributions.5

On another front, the State Board of Bar Examiners voted to raise the passing score on the Multistate Professional Responsibility Examination. In 2008, when this decision goes into effect, California will share with Utah the distinction of requiring the highest passing score in the nation.

Finally, the Commission on the Revision of the Rules of Professional Conduct continued its work throughout 2005. In 2006, the commission is expected to release its first proposed new rules for formal public comment.6

Conflicts of Interest

During 2005 several California courts published opinions concerning conflicts of interest. The fundamental principles are fairly straightforward. Every lawyer admitted to practice in California has a duty "to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."7 This reflects two related but independent duties--one of undivided loyalty to a client and another to keep client secrets in confidence. The California Rules of Professional Conduct describe a lawyer's ethical obligation to avoid, absent appropriate written notice or consents, entering into a business transaction adverse to a client,8 representing clients with adverse interests,9 and representing a client in a matter in which the lawyer has a particularly close relationship with the other party's lawyer.10

In Goldberg v. Warner/Chappell Music, Inc.,11 a lawyer applying for an in-house legal position with a company talked briefly and informally with a partner of an outside law firm concerning her proposed employment agreement. Notwithstanding these talks, the lawyer handled her negotiations with her prospective employer on her own. The partner did not open a file on the matter and did not bill the lawyer for his time. The lawyer began her in-house employment and proceeded to develop close personal and professional relationships with various lawyers in the partner's outside law firm, which she retained to represent her company on multiple matters. The partner later resigned from the law firm to work at another firm, but his former firm continued to handle matters for the in-house lawyer's company. Six years after she was hired, the in-house lawyer was fired, and she sued the company for wrongful termination. The company retained the partner's former outside law firm to represent it against her claims.

The trial court concluded that the law firm should not be disqualified, and the court of appeal agreed. The appellate court reasoned that the in-house lawyer and partner (and the partner's firm) had formed an attorney-client relationship, notwithstanding the informality of their brief discussions. That relationship ended at the latest when the partner left the law firm, if not earlier when the in-house lawyer accepted her job offer. Thus, the court applied the substantial relationship test, because the law firm represented adverse clients in successive, rather than concurrent, engagements.

When a substantial relationship has been shown to exist between a lawyer's former and current engagements, and when it appears by the nature of the former representation that confidential information material to the current dispute would normally have been imparted to the lawyer, the lawyer's knowledge of confidential information is presumed, and the lawyer and his or her law firm should be disqualified from the current engagement, absent appropriate consents.12 Under the circumstances, however, the Goldberg court was not prepared to disqualify the law firm by imputing to it knowledge of confidential information concerning the representation of the in-house lawyer gained by the former partner. The court noted that because the partner had left the firm and the firm submitted evidence that others in the firm possessed none of the confidential information acquired by the partner, there was no opportunity for confidential information to be divulged.13 At some point, the court concluded, it ceases to make sense to apply a presumption of imputed knowledge when a lawyer moves from firm to firm.14

In another successive representation case, Pound v. DeMera,15 the Fifth District Court of Appeal, analyzing an issue of first impression in California, concluded that two lawyers who were neither partners nor employees of the same firm but served as cocounsel for clients in a corporate divorce had to be disqualified. This was necessary because of a conflict arising from one lawyer's one-hour consultation three years earlier with a lawyer for two adverse parties. The court concluded that the two engagements were substantially related and, in the absence of appropriate client consents, mandated the disqualification of the first lawyer.16 The court also disqualified his cocounsel because, under the circumstances, there was no possibility for erecting an ethical wall precluding the dissemination of confidential information, even assuming that this type of screening is deemed effective in California. The very purpose for engaging the second lawyer as cocounsel in the case was to acquire the cocounsel's assistance at trial against the cocounsel's former client. Thus the potential for disclosure of confidential information was significant.17

The ruling in Cal West Nurseries, Inc. v. Superior Court18 illustrates that the substantial relationship test does not apply in cases of concurrent representation of adverse parties. As the California Supreme Court noted in Flatt v. Superior Court in 1994, "The primary value at stake in cases of simultaneous or dual representation is the attorney's duty--and the client's legitimate expectation--of loyalty, rather than confidentiality."19 Thus, in Cal West Nurseries, the court issued a writ instructing the trial court to disqualify a law firm that represented as cocounsel two clients pursuing a cross-complaint for indemnity and apportionment against Cal West, which the law firm was currently representing in an unrelated litigation matter.

When Cal West objected to receiving deposition notices from its own law firm, the law firm filed a disassociation of counsel, stating that it would no longer represent its two clients regarding the claims asserted between them and Cal West. The court held that this action did not remedy the conflict, for the law firm's clients were still adverse.20 Quoting Flatt, the court of appeal noted that "[a] client who learns that his or her lawyer is also representing a litigation adversary, even with respect to a matter wholly unrelated to the one for which counsel was retained, cannot long be expected to sustain the level of confidence and trust in counsel that is one of the foundations of the professional relationship."21 To resolve the conflict, the law firm needed appropriate consents from its three clients.

The duty of loyalty likewise prevents a lawyer from serving as a class representative in a class action brought by his or her firm. The court in Apple Computer, Inc. v. Superior Court,22 relying on several federal class action cases and treatises on California and federal class action litigation, issued a writ instructing the trial court to disqualify both the law firm in which the named plaintiff worked and cocounsel for the putative class. By purporting to serve as a class representative, a lawyer and his or her law firm "have placed themselves in a position of divided loyalties--their own financial interest in recovering attorney fees versus their obligation to the putative class to maximize the recovery of monetary and other relief."23 Even though the plaintiff lawyer did not work for cocounsel's firm, the court disqualified class cocounsel because of the close business connection between the plaintiff lawyer, his firm, and cocounsel. The two firms were serving or had served as cocounsel in 13 other matters--six of which were active at the time of the disqualification motion. This close business relationship created a conflict for cocounsel.24

In Abbott v. United States Internal Revenue Service, the Ninth Circuit reached a different result, concluding that a lawyer who concurrently represented a taxpayer in litigation with the IRS and served the IRS as an expert witness in unrelated matters did not have a conflict of interest.25 In analyzing the conflict-of-interest issue, the Ninth Circuit first considered Model Rule 1.7 of the American Bar Association's Model Rules of Professional Conduct.26 This was a mistake. The Model Rules do not apply simply because a California lawyer happens to be practicing in a federal proceeding. The Ninth Circuit should have applied the California Rules of Professional Conduct--specifically Rule 3-310--and California Business and Professions Code Section 6068(e)(1). The Ninth Circuit declined to do so because the client first raised Rule 3-310 in her reply brief.27 The Ninth Circuit also noted that it was disinclined to adopt a rule that would effectively impede the IRS from obtaining the expert aid of practicing members of the tax bar.28 One may question whether the duty of loyalty should have precluded the lawyer from simultaneously representing the taxpayer and serving as an expert for the IRS without an appropriate disclosure and opportunity by the taxpayer to seek new counsel.

Cross-Examination of Former Client

In Formal Opinion 513,29 the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee considered whether a lawyer who learns that an opposing party has designated the lawyer's former client to testify as an expert needs to take any steps before continuing with the lawyer's current representation. The committee concluded that there is no ethical impropriety for the lawyer to continue with the representation in the current matter, even in the absence of consent from the former client/expert, so long as the lawyer does not possess confidential information from the former client/expert that would be material to the employment in the current matter. If, however, the lawyer possesses such confidential information, the lawyer may not accept a new engagement without the informed, written consent from both the former client/expert and the new client.30

A lawyer who learns that an adverse party intends to designate the lawyer's former client as an expert during the course of an ongoing matter faces a somewhat different situation. If the lawyer possesses material confidential information that could be used against the former client/expert and the former client/expert refuses to consent to the lawyer's continued representation of the adverse party, the committee suggests that the lawyer seek judicial determination as to whether the former client/expert has waived the right to confidentiality and the right to assert the conflict by having agreed to testify in the new matter.

Confidential Communications to a Web Site

Trolling for members of a class action it planned to bring against pharmaceutical company SmithKline Beecham, a law firm invited potential plaintiffs to fill out a questionnaire on its Web site asking for extensive information about their use of the drug Paxil. After suit was filed, SmithKline Beecham sought discovery of the questionnaires over the plaintiffs' objection based on the attorney-client privilege. The defendant noted that a person filling out the form was required to acknowledge in writing that the questionnaire did not constitute a request for legal advice and that no attorney-client relationship was formed by submitting the information. Nevertheless, in Barton v. United States District Court,31 the Ninth Circuit granted mandamus to prevent disclosure of the completed Internet questionnaires.

The court noted that, in California, communications by prospective clients with the aim of obtaining legal services are covered by the attorney-client privilege, regardless of whether the prospective clients ever actually retain the lawyer. Without the privilege, people seeking assistance with their problems could not safely confide in lawyers. The privilege does not apply when a lawyer specifically states that he or she will not represent the person communicating with the lawyer, but the court of appeals found in Barton that the law firm's Web site did not do this because it merely indicated that "[the firm] did not represent the submitter yet."32 The court further explained that what the clients thought was more important than what the law firm intended, and if the Web site questionnaire was ambiguous, the clients should not be penalized for the law firm's ambiguity.33

The reasonable beliefs of visitors to a lawyer's Web site also were the focus of an ethics opinion by the State Bar's Committee on Professional Responsibility and Conduct (COPRAC). In Formal Opinion No. 2005-168, COPRAC considered whether a lawyer owed a duty of confidentiality to people who submitted legal questions to his Web site but whom the lawyer elected not to accept as clients. The issue is critical since the existence of a duty of confidentiality to nonclients could disqualify the lawyer from other representations. The opinion concludes that even if a visitor agreed that no confidential relationship was formed, this would not necessarily defeat the person's reasonable belief that he or she was submitting questions to the Web site for the purpose of retaining the lawyer and that the lawyer would keep the information confidential. To protect both parties, COPRAC recommended that a Web site disclaimer plainly state that a person's submission to the site would not be confidential. Alternatively, a lawyer's Web site could make an initial request of inquiring visitors to provide only the information that would be necessary to perform a conflicts check.

Bad Acts by Attorneys

Lozano Smith, a law firm, boasts in its advertising that it is a premier firm in the field of education law. The firm represents hundreds of California school districts, often in lawsuits brought by parents seeking services for their disabled children under the Individuals with Disabilities Education Act and related laws. In Moser v. Bret Harte Union High School District,34 U.S. District Judge Oliver Wanger held that the firm's lawyers had engaged in a concerted effort over four years "to distort, if not deceive, the court when shaping the court's view of both the record and applicable law in the case."35 Moreover, the court detailed numerous examples in which the lawyers for the school district impeded the proceedings by making frivolous, vexatious, and obstructive objections; blatantly and repeatedly distorted the record despite warnings that their statements were inaccurate; and intentionally misstated the law. The court rejected the principal lawyer's excuses as "untenable," "not credible," and "simply not true"--but when Lozano Smith tried to exonerate itself by blaming the principal lawyer alone for the misconduct, the judge tartly named as culprits the firm's senior lawyers who had actively worked on the case and signed papers filed with the court. Holding that the distorted and incorrect legal arguments were written

by one of the law firm's leaders in violation of Rule 11 of the Federal Rules of Civil Procedure, the court concluded: "This raises [the] question whether a culture of misrepresentation and deception exists at Lozano Smith.…"36 Sanctioning the lawyers under Business and Professions Code Section 6068(d) and Rule 5-200 of the Rules of Professional Conduct which, among other authorities, prohibit false and misleading statements to a court, the judge publicly reproved the principal lawyer and ordered all Lozano Smith shareholders and associates to attend ethics training by the end of the year.37

An irritated panel of the Second District Court of Appeal found a lawyer guilty of criminal contempt because she had made unsupported accusations of judicial misconduct by the appellate court and had engaged in a pattern of abuse by repeatedly impugning the integrity of a trial judge, opposing counsel, and counsel's expert witnesses. In In re Debra L. Koven,38 the court cited two intemperate petitions for rehearing in which the lawyer flung charges that the court of appeal had concealed conflicts of interest with the opposing parties and their counsel, conspired to fix the case against her client, manipulated the result, concocted a trumped-up review, and misrepresented the evidence. The court of appeal found that these accusations were false and patently outrageous. It accepted Koven's subsequent apology but declined to purge the contempt citations because the lawyer had not acted in good faith given the lack of support for the charges; her statements were spiteful and malicious, and not inadvertent; and she was a repeat offender. "The Court of Appeal will not quietly suffer an attack upon its integrity," it sternly wrote, fining Koven $2,000 and directing the clerk to report her to the State Bar for investigation and possible discipline.39

Lawsuits against Lawyers

In two cases decided by the Fourth District Court of Appeal, lawyers were sued with different results. In Chapman v. Superior Court,40 a former member of the board of the San Diego Unified Port District was convicted of having a personal financial interest in contracts made by the Port District, in willful violation of Government Code Section 1090. In a case of first impression, the former board member sued the Port District's lawyer for legal malpractice, claiming that he had relied on the lawyer's negligent advice regarding compliance with the law. The former board member sought damages resulting from his criminal prosecution, including lost business opportunities, attorney's fees, and emotional distress. The lawyer argued he had no attorney-client relationship with the former board member. The trial court denied the lawyer's motion for summary judgment, and the lawyer petitioned for a writ of mandate. The court of appeal granted the writ but sidestepped the issue of the attorney-client relationship. Instead, the court held that public policy bars recovery for injuries arising from a knowing and willful crime--notwithstanding what it characterized as the lawyer's "inexplicable" advice to the former board member--and it directed the superior court to enter summary judgment in favor of the lawyer.41

A different public policy argument was brushed aside, and a lawsuit against a law firm was allowed to proceed, in Forensis Group, Inc. v. Frantz, Townsend & Foldenauer.42 The case arose out of a wrongful death action by the Hernandez family for the death of the family's father in a workplace accident involving a forklift. The law firm Frantz, Townsend & Foldenauer sued the forklift manufacturer on behalf of the family and retained an expert mechanical engineer through Forensis Group. At his deposition, the expert did not identify any applicable safety standards, but when the manufacturer later moved for summary judgment, the expert stated in a declaration that the vehicle failed several safety standards. The court granted summary judgment, noting that the expert had contradicted himself. The Frantz firm referred the Hernandez family to another law firm, which filed a malpractice suit against the Forensis expert. The expert cross-claimed against the Frantz law firm for equitable indemnity, alleging that because he was retained by the law firm, the lawyers should share the loss attributable to the expert's unsuccessful opposition to the motion for summary judgment. The expert charged that the lawyers had not provided him with adequate information, had failed to rehabilitate him at his deposition, and had failed to brief the court on the law regarding the admissibility of evidence regarding industry standards.

The law firm moved for summary judgment, arguing that the expert's indemnity claims were barred by the public policy interest in ensuring the lawyers' undiluted loyalty to their clients, and the trial court granted the motion. On appeal, the Fourth District noted that the normal rule permitting equitable indemnity among joint tortfeasors has an "attorney exception" that normally bars indemnity claims against successive lawyers lest the claims create a conflict of interest between attorney and client or compromise the lawyer's duty of confidentiality to the client. However, citing the state supreme court's decision in Musser v. Provencher,43 the court of appeal noted that the exception does not apply in every case, and reversed the summary judgment, holding that the expert's cross-claim against the law firm could proceed.

The court compared the role of expert witnesses to concurrent legal counsel. Like the concurrent counsel in Musser, the Forensis expert could not independently communicate with the trial court and had to act through the Frantz firm. He was not involved in legal strategy and relied on the legal standards supplied by the law firm. Furthermore, the court held that since the Hernandez family had settled its claims against the expert, leaving only the expert's cross-claim for equitable indemnity against the law firm, there was little danger that the lawyers would breach their duty of loyalty or their duty of confidentiality to defend the claim.44

Departing Partner

In Anderson, McPharlin & Conners v. Lee,45 a law firm sued to enforce its partnership agreement against a lawyer who took more than two dozen clients with him when he left the firm. The partnership agreement stated that the firm had invested substantial money in generating business and would lose money if a partner left with clients. The lawyer agreed that if he left with open files, he would make payments to the firm based on a formula equal to 25 percent of the revenues for all legal services rendered for 24 months after his departure. During the 24 months after the lawyer left the law firm, the clients he took with him paid him $526,000, 25 percent of which was $131,000. The lawyer refused to pay the 25 percent amount to the law firm, arguing that the contract was an unenforceable fee-splitting agreement under Rule 2-200 of the Rules of Professional Conduct.46

The Second District Court of Appeal rejected his argument. The court noted that Rule 2-200(A), by its express language, excludes arrangements between partners in its limits on fee splitting. Moreover, the court said, the provision was a "termination payment," enforceable when a partner left the firm with clients, and was not a fee-splitting agreement at all.47

Unauthorized Practice of Law

Ever since the California Supreme Court in Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court48 strictly applied Business and Professions Code Section 6125's prohibition on the unlicensed practice of law in California, some practitioners have been surprised regarding findings of UPL. In The Matter of Stephine M. Wells,49 the State Bar Court found that the respondent, a member of the State Bar of California, was guilty of UPL and violated Rule 1-300(B) of the Rules of Professional Conduct because she had practiced law in South Carolina even though she was not licensed there. Rule 1-300(B) states: "A member shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction." This is consistent with the extraterritorial reach of the Rules of Professional Conduct, which is defined in Rule 1-100(D)(1): "As to members: These rules shall govern the activities of members in and outside the state, except as members lawfully practicing outside this state may be specifically required by a jurisdiction in which they are practicing to follow rules of professional conduct different from these rules."

Wells was admitted to the California bar in 1984. She moved to South Carolina in 1996 and practiced law there until 2001, focusing on employment discrimination claims under Title VII of the Civil Rights Act of 1964. She was not a member of the South Carolina bar and, as a resident of the state, was ineligible for admission pro hac vice. She moved back to California, and the State Bar filed disciplinary charges against her, alleging, among other things, that Wells engaged in UPL in another jurisdiction. In her defense, Wells argued that since her practice was limited to federal civil rights claims before the Equal Employment Opportunity Commission, federal law preempted state regulation and she could not be liable for UPL. She cited Sperry v. Florida for this contention.50 The State Bar Court rejected this argument because her practice was not limited to the EEOC or federal court. Furthermore, the lawyer held herself out as entitled to practice in South Carolina without limitation. The court, citing two California Supreme Court opinions, noted that the mere practice of holding oneself out as a practitioner constitutes UPL.51

The federal preemption argument was embraced by the U.S. Court of Appeals for the Federal Circuit in Augustine v. Department of Veterans Affairs.52 Petitioner Augustine prevailed in her appeal to the federal Merit Systems Protection Board, which held that the Department of Veterans Affairs had violated her right to a veteran's preference by not selecting her for a civil service job. The board, however, held that she was not entitled to recover her attorney's fees because her lawyer, who was licensed in Massachusetts and New York, was not admitted to practice law in California, where he had represented the petitioner before the board. The Federal Circuit vacated and remanded this ruling.

The court of appeals admitted it was unclear whether Business and Professions Code Section 6125 was intended to regulate practice before federal administrative proceedings, though it cited a pre-Birbrower memorandum from the California State Bar stating that a nonmember is not engaged in UPL when practicing before federal courts or agencies in California.53 However, the court held, any state law purporting to regulate practice before a federal administrative agency would be invalid because state or local law that attempts to impede or control the federal government or its instrumentalities is deemed presumptively invalid under the supremacy clause. The Federal Circuit cited a number of cases for this proposition--including the U.S. Supreme Court's 1819 decision in McCulloch v. Maryland--though none of them dealt with the state regulation of lawyers.

The court of appeals compared the sui generis ruling in Sperry, which recognized the Patent Office's right to permit nonlawyers to prosecute patents, with the present case: "Just as the states cannot regulate practice before the PTO, they cannot regulate practice before the Merit Systems Protection Board….California has no authority to require that attorneys practicing before the Board obtain a state license or to regulate the award of fees for work before federal agencies."54 The court concluded that Congress and the board did not intend to incorporate state law standards for practice before the board, though it approvingly cited a board decision that attorneys appearing before it were expected to conform to state ethics rules governing attorney conduct.55 The Federal Circuit clinched its opinion with the assertion that if state licensing rules were applied, the pool of attorneys available to practice before federal agencies in California "would be severely impaired."56

Attorney Fee Arbitration

In California, the Mandatory Fee Arbitration Act (MFAA) provides a quick and inexpensive method for clients, at their option, to resolve fee disputes with their lawyers through nonbinding arbitration.57 If the client invokes the right to arbitrate under the MFAA, the lawyer must submit the fee dispute to arbitration. Arbitration under the MFAA is limited to fee disputes and may not include any related issues, such as a claim for legal malpractice or professional misconduct. Prior to or at the time of serving the summons in a lawsuit for fees, a lawyer must give a client written notice that the client has a right to arbitration under the MFAA.

Failure to provide written notice of the right to MFAA arbitration is a ground for dismissal of a lawyer's lawsuit, but, as the Sixth District Court of Appeal concluded in Law Offices of Dixon R. Howell v. Valley,58 dismissal on this basis is discretionary, not mandatory. In Howell, the court held that the client waived his right to seek dismissal of his lawyer's lawsuit--even though the lawyer failed to give the client adequate notice--and prejudiced the lawyer's law firm by litigating the dispute for 15 months, until six days before trial, without demanding arbitration.59

Judicial Misconduct

By a divided vote, the Judicial Council of the Ninth Circuit dismissed a complaint of misconduct against U.S. District Judge Manuel Real, who was accused of improperly withdrawing a case from bankruptcy court and enjoining a state court eviction order to protect a female criminal defendant whose probation he was supervising. In dissent, Judge Alex Kozinski concluded the orders were a raw exercise of judicial power amounting to serious misconduct and bluntly described the district judge's statement of contrition as "slippery" and "risible."60

In Regan v. Price,61 the Third District Court of Appeal held that a judicial officer did not have absolute immunity for assaulting and battering a litigant. Price, an attorney, was appointed by the Placer County Superior Court to act as a discovery referee in a case involving Regan. During the litigation, Regan's lawyer Kingslan questioned Price's ability to contain his emotions and, after a conference call in which the discovery referee falsely accused Kingslan of stealing documents that belonged to his client, Kingslan drafted a letter informing Price that he would be moving for a protective order removing Price from acting as discovery referee. Kingslan and his client Regan delivered the letter to Price at his office. After reading the letter, Price blocked the exit door, and when Kingslan and Regan attempted to step around him, the referee shut the door and blocked it with his body. Kingslan was able to open the door and escape, but Regan, a 63-year-old cancer survivor, was injured when Price slammed the door against him. Regan sued Price for false imprisonment, assault, battery, negligence, and infliction of emotional distress.

The California attorney general represented the discovery referee in the suit. Price argued that he had absolute judicial immunity. The appellate court rejected the defense, holding that judges are insulated from civil liability only for exercising judicial functions, and one "who applies brute force to a litigant is not engaging in any task that can be reasonably associated with his role as a judge….."62 The court concluded: "A judge's robe is not a king's crown….[Judicial immunity] was never intended to protect acts of thuggery against litigants merely because the assailant happens to be a judge."63

Ex Parte Contacts

It has long been the rule that a lawyer representing a client in a litigation matter is prohibited from most ex parte contacts with the judge assigned to the case.64 With the recent proliferation of electronic communications, a lawyer posting a message to a Listserv, for example, may inadvertently come in contact with a judge assigned to the case of the lawyer's client if the judge is also a member of the Listserv. In a recent opinion, the Los Angeles County Bar Association's Professional Responsibility and Ethics Committee warned that although inadvertent contact with a judge through a Listserv likely creates no ethical violation, "[n]ew forms of communication can seductively cause lawyers to forget their ongoing duty to maintain the confidences of their respective clients."65 The committee noted that a cavalier approach toward communications via a Listserv--for example, an exchange of messages regarding expert referrals--could create difficulties for lawyers, including the disclosure of confidential information, engaging in prohibited ex parte communications with a judge, and the impairment of a claim of protection under the attorney's work product doctrine. Similarly, the committee also cautioned judges to make every effort to avoid situations in which they would be exposed to unintended or inadvertent communications regarding issues in controversy.

Federal Preemption

In 2003, state and federal courts held that California's Ethics Standards for Neutral Arbitrators in Contractual Arbitration were preempted.66 Last year, the final chapter was written by the California Supreme Court's affirmance of the Second District Court of Appeal in Jevne v. Superior Court.67 The supreme court held that the California Standards' disclosure requirements and disqualification standards for arbitrators were preempted as a result of the approval by the U.S. Securities and Exchange Commission of the rules for neutral arbitrators promulgated by the National Association of Securities Dealers (NASD). Concluding that the provisions for disclosure and disqualification were not severable from the remaining standards, the state supreme court ruled that the California Standards in their entirety were preempted in securities arbitrations administered by self-regulatory organizations such as the NASD.68

In American Bar Association v. Federal Trade Commission,69 the U.S. Court of Appeals for the District of Columbia Circuit held that the FTC had exceeded its authority with its attempt to extend the privacy and disclosure requirements of the Graham-Leach-Bliley Act to practicing lawyers. The court did this by affirming summary judgment for the ABA, which had sued the FTC for declaratory judgment. The ABA was concerned that the imposition of regulatory duties under the act would interfere with the confidential attorney-client relationship. The court noted that the FTC "had apparently assumed--without reasoning--that it could extend its regulatory authority over lawyers…with no other basis than the observation that the Act did not provide for an exemption."70 The court rejected this reasoning, observing that the regulation of the practice of law is traditionally the province of the states, and that federal law may not be interpreted to reach into areas of state sovereignty unless the language of federal law compels the intrusion. "[I]t is not reasonable for an agency to decide that Congress has chosen such a course of action in language that is, even charitably viewed, at most ambiguous."71



1 Bush Lets U.S. Spy on Callers without Courts, N.Y. Times, Dec. 16, 2005; see United States v. United States Dist. Court, 407 U.S. 297, 320 (1972) ("[T]he President's domestic security role…...must be exercised in a manner compatible with the Fourth Amendment [which] requires an appropriate prior warrant procedure.").
2 Alito Defends His Actions in Two Appeals Court Cases, Wash. Post, Nov. 11, 2005.
3 White Collar Crime; Waiver of Corporate Attorney-Client and Work Product Protection, N.Y. L. J., Nov. 1, 2005.
4 Moser v. Bret Harte Union High Sch. Dist., 366 F. Supp. 2d 944, 988 (E.D. Cal. 2005).
5 Indicted Lawyer's Firm Smelled Trouble, The Recorder, Jan. 3, 2006.
6 Information about the new rules and the commission's public meetings can be found at http://www.calbar.ca.org.
7 Bus. & Prof. Code §6068(e)(1).
8 See Cal. Rules of Prof'l Conduct R. 3-300.
9 See Cal. Rules of Prof'l Conduct R. 3-310.
10 See Cal. Rules of Prof'l Conduct R. 3-320.
11 Goldberg v. Warner/Chappell Music, Inc., 125 Cal. App. 4th 752 (2005).
12 Id. at 759 (citing Rosenfeld Constr. Co. v. Superior Court, 235 Cal. App. 3d 566, 574 (1991)).
13 Id. at 760-61.
14 Id. at 762.
15 Pound v. DeMera, 135 Cal. App. 4th 70 (2005).
16 Id. at 76.
17 Id. at 77.
18 Cal West Nurseries, Inc. v. Superior Court, 129 Cal. App. 4th 1170 (2005).
19 Flatt v. Superior Court, 9 Cal. 4th 275, 284 (1994) (emphasis in original).
20 Cal West, 129 Cal. App. 4th at 1176.
21 Id. (quoting Flatt, 9 Cal. 4th at 285 (emphasis in original)).
22 Apple Computer, Inc. v. Superior Court, 126 Cal. App. 4th 1253 (2005).
23 Id. at 1273 (emphasis in original).
24 Id. at 1274-76.
25 Abbott v. United States Internal Revenue Serv., 399 F. 3d 1083 (9th Cir. 2005).
26 Id. at 1085-86.
27 Id. at 1086.
28 Id. at 1087.
29 L.A. County Bar Ass'n, Prof'l Resp. & Ethics Comm., Formal Op. 513 (July 18, 2005).
30 Id. at 4.
31 Barton v. United States Dist. Court, 410 F. 3d 1104 (9th Cir. 2005).
32 Id. at 1111 (emphasis in original).
33 Id. at 1107.
34 Moser v. Bret Harte Union High Sch. Dist., 366 F. Supp. 2d 944 (E.D. Cal. 2005).
35 Id. at 953.
36 Id. at 980.
37 Id. at 988.
38 In re Debra L. Koven, 134 Cal. App. 4th 262 (2005).
39 Id. at 265.
40 Chapman v. Superior Court, 130 Cal. App. 4th 261 (2005).
41 Id. at 277.
42 Forensis Group, Inc. v. Frantz, Townsend & Foldenauer, 130 Cal. App. 4th 14 (2005).
43 Musser v. Provencher, 28 Cal. 4th 274 (2002).
44 Forensis Group, 130 Cal. App. 4th at 39-40.
45 Anderson, McPharlin & Conners v. Lee, 135 Cal. App. 4th 129 (2005).
46 Rule 2-200(A) states that a member of the State Bar shall not divide a fee for legal services with a lawyer who is not a partner, associate, or shareholder with the member unless 1) the client has consented in writing after written disclosure of the division of fees and the terms of the division, and 2) the total fee charged by all lawyers is not increased solely by reason of the division of fees and is not unconscionable.
47 Anderson, 135 Cal. App. 4th at 133.
48 Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Court, 17 Cal. 4th 119 (1998).
49 The Matter of Stephine M. Wells, 2005 WL 3293313 (State Bar Court, Dec. 5, 2005).
50 Sperry v. Florida, 373 U.S. 379 (1963).
51 Crawford v. State Bar, 54 Cal. 2d 659 (1975); In re Cadwell, 15 Cal. 3d 762 (1974).
52 Augustine v. Department of Veterans Affairs, 429 F. 3d 1334 (Fed. Cir. 2005).
53 Id. at 1338.
54 Id. at 1340.
55 Id. at 1344; Collins v. Department of Justice, 94 M.S.P.R. 62 (2003).
56 Augustine, 429 F. 3d at 1342.
57 Bus. & Prof. Code §§6200 et seq.
58 Law Offices of Dixon R. Howell v. Valley, 129 Cal. App. 4th 1076 (2005).
59 Id. at 1103-04.
60 In re Complaint of Judicial Misconduct, 425 F. 3d 1179, 1183 (9th Cir. 2005).
61 Regan v. Price, 131 Cal. App. 4th 1491 (2005).
62 Id. at 1497.
63 Id. at 1499.
64 See Cal. Rules of Prof'l Conduct R. 5-300(B)(5).
65 L.A. County Bar Ass'n, Prof'l Resp. & Ethics Comm., Formal Op. 514 (Aug. 15, 2005), at 6.
66 Mayo v. Dean Witter Reynolds, Inc., 258 F. Supp. 2d 1097 (N.D. Cal. 2003); Wilmot v. McNabb, 269 F. Supp. 2d 1203 (N.D. Cal. 2003); Jevne v. Superior Court, 113 Cal. App. 4th 486 (2003), aff'd, 35 Cal. 4th 935 (2005).
67 Jevne, 35 Cal. 4th 935.
68 Id. at 962.
69 American Bar Ass'n v. Federal Trade Comm'n, 430 F. 3d 457 (D.C. Cir. 2005).
70 Id. at 468.
71 Id. at 471.
By reading this article and answering the accompanying
test questions, you can earn one MCLE ethics credit.

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