When You Have a Fool for a Client
LACBA Update, April 2001
By John W. Amberg, vice chair, LACBA Professional Responsibility & Ethics Committee. Amberg is a partner with the law firm of Bryan Cave LLP in Santa Monica. The opinions expressed are his own. Amberg wishes to thank Diane L. Karpman for her help in the preparation of this article. Karpman of Karpman & Associates in Los Angeles represents attorneys in disciplinary matters and is an expert consultant and witness on legal ethics issues. She is chair of LACBA’s Professional Responsibility & Ethics Committee.
The adage that "a lawyer who represents himself has a fool for a client" is the product of years of experience by seasoned litigators, the Supreme Court has remarked. See, Kay v. Ehrler, 499 U.S. 432, 438 (1991). But do all lawyers know why? Though the adage is familiar, many lawyers and law firms continue to represent themselves in disputes, often with disastrous results.
Perhaps an attorney’s greatest asset as a professional is his or her capacity to provide dispassionate, objective advice to clients who are emotionally overwrought by a legal problem. Indeed, the attorney has a professional and ethical duty to exercise his or her professional judgment. Section 6068 of the Business & Professions Code states that an attorney has a duty "...(g) Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest." And Rule 3-110 of the Rules of Professional Responsibility provides that an attorney shall not fail to perform legal services competently, when "competence" is defined to include the "mental, emotional, and physical ability reasonably necessary for the performance of the service."
But attorneys appearing in propria persona risk compromising their greatest asset. As the Supreme Court noted: "Even a skilled lawyer who represents himself is at a disadvantage in contested litigation. ...He is deprived of the judgment of an independent third party, in framing the theory of the case, evaluating alternative methods of presenting the evidence, cross-examining hostile witnesses, formulating closing arguments, and in making sure that reason, rather than emotion, dictates the proper tactical response to unforeseen developments in the courtroom." Id. at 437-438.
Representing oneself can have adverse practical consequences. First, a lawyer is prohibited ethically from acting as an advocate before a jury if he or she also will be testifying to a contested matter. See, Rule of Professional Conduct 5-210. There are exceptions to this rule if the testimony relates to the nature and value of legal services rendered in the same case, or if the matter is non-adversarial, or is being tried to a judge. Also, the rule does not apply if another lawyer in the advocate’s law firm will be a witness.
Second, a lawyer representing himself or herself cannot recover legal fees and costs under Section 1717 of the Civil Code, even if the contract sued on expressly authorizes such an award to the prevailing party. In Trope v. Katz (1995) 11 Cal.4th 274, 280-81, the California Supreme Court held that an attorney who chooses to litigate in propria persona does not "incur" attorneys’ fees within the meaning of the statute because he or she does not pay or become liable to pay them. Nor can the lawyer recover compensation for professional business opportunities foregone as a result. Id. at 292. In PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1092, the Supreme Court explained that its decision in Trope was based largely on the lack of any attorney-client relationship.
In a recent decision, however, the Second District Court of Appeal distinguished Trope and reversed a denial of attorneys’ fees to an attorney who was represented in the lawsuit by other members of his law firm. In Gilbert v. Master Washer & Stamping Co., Inc., ___ Cal.App.4th ___, 2001 Daily Journal D.A.R. 1947 (February 22, 2001), the court found that the attorney represented by his own firm had "incurred" attorneys’ fees under Section 1717: "Either the represented attorney will experience a reduced draw from the partnership (or a reduced salary from the professional corporation) to account for the amount of time his or her partners or colleagues have specifically devoted to his or her representation, or absorb a share of the reduction in other income the firm experiences because of the time spent on the case." Id. at 1951. Moreover, unlike the in pro per lawyer in Trope, Gilbert was a party to an attorney-client relationship. Noting the familiar adage, the court concluded: "An attorney who asks his partners or associates to represent him...is no fool." Id. at 1952.
Third, if a law firm decides to represent itself, the existence of the attorney-client privilege for its internal communications may be jeopardized. In U.S. v. Rowe, 96 F.3d 1294 (9th Cir. 1996), a law firm launched an investigation after learning that one of its lawyers may have mishandled client funds by assigning two associates to investigate his conduct and report back their findings. Subsequently, a grand jury subpoenaed the associates, and the firm asserted the attorney-client privilege. Even though the associates were never told they were acting as the firm’s attorneys, did not keep time records or bill the firm for their time, and were taking direction from a senior partner, Judge Kozinski found that they were, in effect, in-house counsel and that the privilege would attach to their confidential communications with the members of the firm. Id. at 1296-97. The Court of Appeals relied exclusively on federal law for this result.
In a later unpublished decision based on California law, the Fifth District Court of Appeal came to an opposite result. In McCormick, Barstow, Shepherd, Wayte & Carruth v. Superior Court (1998) ___ Cal.App.4th ___, 81 Cal.Rptr.2d 30, 1998 Cal. App. LEXIS 1102, a law firm chose to defend itself from a malpractice claim. When the former client sought all internal communications from the law firm concerning his claim, the firm asserted the attorney-client privilege. The court of appeal rejected the firm’s argument and surprisingly held that no attorney-client relationship existed between the firm and its lawyers who were defending it. The court asked: "If the McCormick firm was the client, who was its lawyer? And who was the client communicating with?" Although unpublished and widely disparaged, the McCormick decision reflects the dangers that can befall a lawyer (or a law firm) who chooses to go it alone.