Ethics Opinon 1995-2

I
QUESTION PRESENTED

What are an attorney's ethical obligations following receipt of notice by the adverse party that the attorney's recently?filed pleading is not legally justified?

II
SUMMARY

An attorney may only pursue a defense in litigation which is warranted under existing law, or is supported by a good faith argument for the modification thereof. Where an attorney determines that her conduct to date is not so supportable she must advise her client to take corrective action. If the client would be materially affected by, and refuses to permit such corrective action, the attorney must withdraw.

III
STATEMENT OF FACTS

Plaintiff, represented by Attorney P, filed its complaint in unlawful detainer against Defendant, who is represented by Attorney D. Defendant advises Attorney D that she needs time, and to do all legally possible to postpone a judgment. Further, Defendant lists a number of lease defaults by Plaintiff which precipitated her default, that upon which the unlawful detainer is based.

On Defendant's behalf, Attorney D demurs to the complaint, which demurrer is denied at the hearing thereon. The court orders Defendant to file her answer within five days thereafter. In accord, Attorney D prepares Defendant's answer, as well as a crosscomplaint against Plaintiff based upon Plaintiff's lease defaults asserted by Defendant. Both pleadings are approved by Defendant prior to filing.

When served, Attorney P advises Attorney D by letter that a crosscomplaint may not be filed in an unlawful detainer action under California law, and asks that the crosscomplaint be dismissed. After researching the proposition, Attorney D transmits Attorney P's correspondence to Defendant, expresses her agreement with Attorney P's analysis and strongly advises Defendant to dismiss the crosscomplaint. Defendant responds by refusing to authorize the crosscomplaint's dismissal.

IV
ANALYSIS

A. Competence at the Outset.

We do not delve into the procedural intricacies of the summary unlawful detainer action. We need not do so. If Attorney P is correct, Attorney D's conduct in preparing and filing the unwarranted pleading raises obvious issues of competence with respect to D's representation, which find no solace within the confines of good faith.

Rule 3-110(A) of the California Rules of Professional Conduct provides (1) that "[a] member shall not intentionally, or repeatedly fail to perform legal services with competence." To render legal service competently means "to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service." Rule 3-110(B).

Thus, to the extent the improper pleading was prepared and filed by Attorney D intentionally without adequate preparation, research and investigation under the circumstances, she will be subject to discipline regardless of any corrective measures taken. on this point, the facts suggest that one motivation of Attorney D's conduct was her client's request that she do "all legally possible to postpone a judgment." To the extent this was the operative factor in the wrongful pleading at issue, Attorney D is, and in the Committee's view, should be subject to discipline.

B. Duties of Counsel After the Fact.

Rule 3-200 of the California Rules of Professional Conduct provides:

A member shall not seek, accept, or continue employment if the member knows or should know that the objective of such employment is:

(A) To bring an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or

(B) To present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification, or reversal of such existing law.

In accord, Cal. Bus. & Prof. Code §6068(c) requires an attorney "[t]o counsel or maintain such actions, proceedings, or defenses only as appear to him or her legal or just . . . ."

Once Attorney D is advised as to the potential procedural impropriety of her acts, she must immediately advise her client thereof. If Attorney D continues to repose a good faith belief that "an extension, modification, or reversal" of existing law is warranted, she may so advise Defendant of that opinion. Rule 3-200(B), supra. However, this Committee is of the opinion that the risk associated with such a position, of which Attorney D has now been informed, is a "significant development" of which Defendant must be likewise informed. Rule 3-500.(2) Accordingly, Attorney D must fully advise Defendant of the potential consequences of asserting the argument, not the least of which is the risk of sanctions liability. Cal. Code Civ. Proc. §128.5.

On the other hand, if Attorney D concedes the impropriety following Attorney P's admonition (which the facts at issue suggest she does), this Committee believes that both Rule 3-200 and Cal. Bus. & Prof. Code §6068(c) demand corrective measures. "When an attorney loses faith in his cause he should either retire from the case or dismiss the action." Larimer v. Smith (1933) 130 Cal.App. 98, 101, 19 P.2d 825, 827. Attorney D must so advise Defendant.

Without client consent, dismissal of the crosscomplaint in this instance is not an alternative. Nevertheless, given Attorney D's determination that the crosscomplaint was, in fact, improper, her prosecution thereof must be suspended immediately. Given Defendant's refusal to permit cure of the improper pleading, Attorney D's appropriate resort is to withdrawal. That is an acceptable course of action where an attorney is faced with a conflict such as this, "a choice between [her] duty to advance [her] client's cause by continuing to prosecute the action and [her] duty to fair administration of justice to refuse to maintain actions believed to lack merit." Kirsch v. Duryea (1978) 146 Cal.3d 303, 309, 146 Cal. Rptr. 218, 222.

Indeed, this Committee views Attorney D's withdrawal from the representation as mandatory under Rule 3-700. This follows since Defendant is asserting a position in litigation without probable cause, and given the stated objective of delaying progress, for the purpose of harassing or injuring Plaintiff. Rule 3-700(B)(1). (3)

Furthermore, continued employment violates the California Rules of Professional Conduct [Rule 3-200, supra] as well as the State Bar Act [Cal. Bus. & Prof. Code §6068(c), supra]. Rule 3-700(B)(2).

Notwithstanding this compulsion, withdrawal may only be pursued pursuant to the other requirements of Rule 3-700, including the need to seek the court's permission and that to take reasonable steps to avoid reasonably foreseeable prejudice to the rights of Defendant. Rule 3-700(A).

V
CONCLUSION

Attorney D should only counsel, prepare and file the subject crosscomplaint to the extent it is warranted under existing law, or provided she can support its filing by a good faith argument for an extension, modification, or reversal of existing law. If on admonition of Attorney P, Attorney D agrees that the crosscomplaint is improper, she must immediately advise Defendant to dismiss the cross-action. If Defendant refuses, Attorney D's withdrawal is mandatory.

This opinion is advisory only, and is not binding on the San Diego County Bar Association, its officers or agents, the State Bar of California or any court.

1. Unless otherwise specified, all future references to rules are similarly to the California Rules of Professional Conduct.
   
   
2. Rule 3-500 provides "[a] member shall keep a client reasonably informed about the significant developments relating to the employment or representation and promptly comply with reasonable requests for information."
   
   
3. Rule 3-700(B) of the California Rules of Professional Conduct provides as follows:

   (B) Mandatory Withdrawal.

   A member representing a client before a tribunal shall withdraw from employment with the permission of the tribunal, if required by its rules, and a member representing a client in other matters shall withdraw from employment, if:

   (1) The member knows or should know that the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person; or

   (2) The member knows or should know that continued employment will result in violation of these rules or of the State Bar Act; or

   (3) The member's mental or physical condition renders it unreasonably difficult to carry out the employment effectively.
   

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.