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Penalty Called on Zealous Advocacy
LACBA Update, November/December 2015


By John W. Amberg, member and former chair, LACBA Professional Responsibility and Ethics Committee, and partner in Bryan Cave LLP. The opinions expressed are his own.

The recent reversal of the National Football League’s suspension of New England Patriots quarterback Tom Brady in the “Deflategate” scandal is a timely lesson on the perils of overly zealous advocacy. In National Football League Management Council v. National Football League Players Association, __ F. Supp. 2d __ (S.D.N.Y. 2015), the NFL’s lawyers turned a rush to judgment into a rout.

For residents of Los Angeles to whom professional football is a distant memory, a brief review of the case may be necessary. During the AFC championship game between the Patriots and the Indianapolis Colts on January 18, 2015, a Colts linebacker intercepted a pass thrown by Brady and handed it off to the Colts equipment staff who used a pressure gauge to determine the ball was inflated only to 11 psi, below the 12.5 to 13.5 psi specified by the NFL Official Playing Rules. At halftime, the officials found that all 11 Patriots game balls measured below 12.5 psi, and re-inflated them to 13 psi. The assumption was that an under-inflated ball made it easier for the quarterback to throw. The Patriots won the game and went on to capture their fourth Super Bowl title, with Brady named Most Valuable Player.

After an investigation jointly conducted by the NFL’s General Counsel Jeff Pash and Theodore V. Wells, Jr. of Paul, Weiss, Rifkin, Wharton & Garrison, NFL Commissioner Roger Goodell imposed a $1million fine and loss of picks in the 2016 and 2017 drafts on the Patriots and a four-game suspension on Brady. Brady denied involvement in deflating the balls and appealed through the Players Association. Following an arbitration appeal hearing in which Goodell appointed himself the arbitrator and Paul, Weiss acted as counsel for the NFL, Goodell issued an award affirming the suspension. On September 3, 2015, U.S. District Judge Richard M. Berman vacated Brady’s suspension, finding the arbitration had been fundamentally unfair.

In imposing his discipline, Commissioner Goodell relied heavily on the Wells Report, the product of the supposedly independent investigation by the Paul, Weiss firm. However, in its opinion, the district court noted the disparity between the Wells Report and the Commissioner’s statements. The Wells Report concluded only that “it is more probable than not that Brady was at least generally aware” of the release of air from the game balls, but Goodell’s arbitration award went far beyond this, finding that Brady had “participated” in a scheme to tamper with the balls: “Mr. Brady knew about, approved of, consented to, and provided inducements and rewards in support of a scheme by which . . . [the locker room attendant] tampered with the game balls.” Id. at 17-18. In fact, the Wells Report’s grudging acknowledgment that “there is less direct evidence linking Brady to the tampering activities” was refuted during the hearing when an NFL Management Council lawyer admitted there was no direct evidence. Id. at 5, fn. 5.

The court faulted the NFL for denying Brady due process through inadequate notice, denial of access to the investigative files, and denial of an opportunity to examine NFL General Counsel Pash, though he had valuable insight into the investigation and the drafting of the Wells Report. Id. at 34. Finally, the court cast doubt on the advertised independence of the Wells Report, noting that Pash had edited it before release, and that the Paul, Weiss lawyers wore inconsistent hats: “[T]he Paul, Weiss role in this case seems to have ‘changed’ from ‘independent’ investigators to NFL’s retained counsel at the arbitral hearing. Among other things, this change in roles may have afforded Goodell (and Pash) greater access to valuable impressions, insights, and other investigative information which was not available to Brady.” Id. at 36. In short, the lawyers’ zeal in prosecuting their client’s case fatally compromised the fairness of the process.

California’s Rules of Professional Conduct and State Bar Act do not contain the words “zealous advocacy,” but California lawyers are no less familiar with their duties of loyalty and diligence. See RPC 3-310 and 3-110(B). However, these duties to their clients are tempered by Rule 3-200, which prohibits presenting a claim or defense not warranted under the law (or a good faith argument for extending, modifying or reversing existing law), and by Section 6068 of the Business and Professions Code, which requires members of the Bar, among other things, (c) to maintain those actions, proceedings or defenses only as appear to be legal or just, and (d) to employ means only as are consistent with truth, and never to seek to mislead a judge or any judicial officer by an artifice or false statement of fact or law.

Recently, the collapse of Deflategate was echoed by an overly zealous prosecution in California, with repercussions for a local lawyer and his client. In Kumaraperu v. Feldsted (2015) 237 Cal. App. 4th 60, a lawyer was sued for malpractice after his client was prosecuted for forgery. Plaintiff Sondra Kumaraperu and her husband owned a daycare center and school, and sold an interest to another couple, the Niyarapolas. When the Niyarapolas defaulted on payments, their interest reverted to the Kumaraperus. The school had a checking account and an operating account. The only signatories on the checking account were the plaintiff’s husband and the Niyarapolas, though their interest had reverted. After her husband died, plaintiff was the sole owner of the school. The school’s director mistakenly deposited $36,000 in tuition checks into the checking account instead of the operating account. Lacking access to the checking account, Sondra Kumaraperu sought advice from attorney John Feldsted, who allegedly advised her to write a check to herself and to sign the name of one of the Niyarapolas. When she was charged with the crime of forgery by the Los Angeles County District Attorney, the lawyer allegedly denied giving her this advice and refused to provide testimony in her criminal defense. She sued him for malpractice, breach of contract and fraud.

The forgery prosecution was ill-conceived. Under California’s Commercial Code, the negotiation of a check is a matter of private contract between a bank and depositor. The purpose of the signature on a check is to authorize the bank to pay out funds in accordance with the depositor’s instructions; it is the act of signing the check, not the name signed, that creates the transaction. Simple imposture may constitute a breach of agreement with the bank, but it is not a crime unless there is an intent to defraud. Penal C. §470. Since the plaintiff owned the school, she owned the funds in its checking account. As the Second District Court of Appeal noted in the malpractice case, transferring funds that one exclusively owns from one account to another does not constitute fraud, even if effected by an imposture. 237 Cal. App. 4th at 68. Not surprisingly, at the preliminary hearing, the criminal case was dismissed. People v. Kumaraperu, Los Angeles Sup. Ct. Case No. GA088431.

In the malpractice case, the appellate court took a similarly dim view of the criminal prosecution and affirmed dismissal of the civil claims, holding that the lawyer could not have reasonably foreseen that the district attorney would prosecute the plaintiff. “Such a result would be highly extraordinary…because a depositor cannot intend to defraud herself.” 237 Cal. App. 4th at 69. The Second District expressed sympathy for the plaintiff, pointing out the impossible dilemma created by an over-zealous prosecutor: “On the one hand she was required to allege lack of intent to defraud so as to deny criminal liability…but at the same time allege a reasonably foreseeable risk of criminal liability, which could only be predicated on her intent to defraud.” Id. at 70.

Dedication to a client’s cause should not blind the lawyer to his or her duty to objectively assess the evidence and the law. If he or she cannot prosecute a case or raise a defense under existing law, or a good faith argument for a change in the law, the lawyer’s blind advocacy may end up by undermining the client’s interests and bringing disrespect to the judicial system.

LACBA's Professional Responsibility and Ethics Committee welcomes new inquiries from LACBA members regarding ethical issues or concerns about professional responsibilities. The identity of the inquirer is kept confidential within the committee. The committee, however, does not publish formal opinions that are the subject of any pending litigation involving the inquirer. If you have an ethical question that you would like the committee to consider, you can mail your written inquiry to Los Angeles County Bar Association, Professional Responsibility and Ethics Committee, P.O. Box 55020, Los Angeles, CA 90055-2020, or e-mail your inquiry marked “Confidential” to Member Services at msd@lacba.org.