"Not a Hired Gun": Ethical Duties to Justice and the Courts
LACBA Update, March 2001

By Ira Spiro and Diane L. Karpman, LACBA Professional Responsibility & Ethics Committee. Spiro practices business, real estate, and class action law. He is a member of the ethics committees of the State Bar of California and LACBA, and a member of the Administrative Office of the Courts’ working group drafting ethics standards for court-connected mediators. 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 opinions expressed are their own.

An attorney must be a vigorous advocate. Yet, contrary to popular belief promulgated in the media:"An attorney in a civil case is not a hired gun required to carry out every direction given by the client. (Bus. & Prof. Code, sec. 6068, subd. (c).) ...counsel has a professional responsibility not to pursue an appeal that is frivolous or taken for the purpose of delay, just because the client instructs him or her to do so. (Rule 2-110(C), Rules Prof. Conduct.) ...ethical and professional standards of a member of the bar and an officer of the court require the attorney to inform the client that the attorney’s professional responsibility precludes him or her from pursuing such an appeal, and to withdraw from the representation of the client." Cosenza v. Kramer (1984) 152 Cal.App.3d 1100, emph. added. (Under B. & P. sec. 6068(c), this holding might not apply to criminal defense counsel.)

Rule of Professional Conduct 5-200 and Business and Professions Code, sec. 6068 require an attorney only to maintain those actions that appear legal or just; to employ only those means which are consistent with truth; and never to seek to mislead the judge by artifice or false statement of fact or law.

These considerations must be balanced with the duty of competency, inferentially expressed in Rule of Professional Conduct 3-310, often requiring vigorous, zealous advocacy. However, championing your client’s cause does not include deception.

Lawyers can incur liability for misrepresentation, even negligent misrepresentation, to opposing counsel or opposing parties. That principle is generally recognized in these cases, which incidentally involved transactional lawyers negotiating for their clients. Cicone v. URS Corp. (1986) 183 Cal.App.3d 194; Home Budget Loans, Inc. v. Jacoby & Meyers Law Offices (1989) 207 Cal.App.3d 1277; Fireman’s Fund Ins. Co. v. McDonald, Hecht & Solberg (1994) 30 Cal.App.4th 1373; LiMandri v. Judkins (1997) 52 Cal.App.4th 326; B.L.M. v. Sabo & Deitsch (1997) 55 Cal.App.4th 823.

Therefore, in negotiations, do what is necessary to be confident you have a reasonable bias for belief that your statements are true, even statements about the intentions of your client. Trial lawyers may be shielded from this sort of liability for statements made during the course of litigation, but the courts have at times carved out exceptions to the litigation privilege, even for statements made in the course. And the privilege will not protect against discipline or sanctions.

The duty of honesty is amplified in court proceedings — The lawyer is an officer of the court. One day, a hard working lawyer was vigorously seeking a bail reduction for his client. He argued once, twice, and then three times in different courtrooms in the same courthouse but didn’t tell each judge about the bail reduction requests made to the two other judges. That misguided lawyer didn’t realize that what judges talk about at lunch is what happened in their courtrooms in the morning, which can be far more interesting than...sports or politics.

The State Bar Court, in disciplining the lawyer, found that the failure to disclose a material fact (the two prior reduction requests), was just as misleading as an affirmative misrepresentation. DiSabatino v. State Bar (1980) 27 Cal. 3d 159.