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ETHICS QUARTERLY
A Service of the San Diego
County Bar Association's Legal Ethics Committee
December 2004 Vol. 1, No. 4
INTRODUCTION
This is the fourth and final edition of
Ethics Quarterly for 2004. Ethics
Quarterly is a service provided by the SDCBA's Legal Ethics Committee. This edition covers cases
from September 15, 2004 to December 15, 2004. Committee members Heather Rosing, of
KLINEDINST PC; Steve Oetting, of the Office of the Attorney General; and
Wendy Patrick, of the Office of the District Attorney, prepared this edition. Heather Rosing served as Coordinating
Contributor, and Wendy Patrick prepared the commentary at the end. Please note the request for comment from
the membership at the end of the case abstracts on a cutting edge question of
legal ethics the Legal Ethics Committee is currently addressing.
The Legal Ethics Committee has appreciated the
comments it has received from a broad cross-section of the Bar’s membership
on the usefulness of Ethics Quarterly.
We also have appreciated the support and encouragement we have
received from SDCBA President Wells Lyman, Past President Tom Warwick and the
rest of the Bar Board in producing the Ethics Quarterly and our other projects
and
programs.
The Legal Ethics Committee’s next seminar will be “The Ethical Edge: An Interactive
Program” and will be held on
January 27, 2005 from 5:30 p.m. to 9:00 p.m. at the Bar Center. Most of the program will consist of
attendees discussing, with fellow Bar members at their table, four problems
in professional responsibility addressed in other jurisdictions, though not
yet definitively in California. Attendees will receive 3 hours of MCLE credit
in Legal Ethics. To register online,
please go to members.sdcba.org. For
more information about the program, please call the Bar at (619) 231-0781 or
contact Committee Chair Dan Eaton at the e-mail address below.
Comments or inquiries about
the Ethics Quarterly or about the Committee’s other services, such as the
Committee’s availability to provide Ethics seminars to individual practice
sections at no cost, should be directed to Legal Ethics Committee Chair Dan
Eaton at eaton@scmv.com.
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CASE NOTES
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1.4.1
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Code Civ. Proc. § 1209,
subd. (a)(3) & (5): Willful
neglect or violation of duty by an attorney/ disobedience of any lawful order.
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Case:
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In re Aguilar
(2004) 34 Cal.4th 386
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Issue:
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Is an associate attorney subject to contempt for failing
to appear for oral argument before the California Supreme Court if, after
notifying the Supreme Court he would appear at oral argument, the attorney
terminated his employment with the law firm, which was counsel of record?
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Holding:
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Yes. The Supreme
Court found the associate in contempt, ruling that his “decision to leave the
firm did not automatically terminate his professional responsibilities either
to his former client or to this court.”
Id., p. 391. The managing partner, who also did not
show for oral argument and who was found to have lied to the court, was also
found in contempt.
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1.4.2
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Prosecutorial Immunity
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Case:
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Genzler v.
Longanbach (9th Cir. 2004) 384 F.3d 1092
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Issue:
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Is a prosecutor entitled to absolute immunity for
allegations of manufacturing evidence in the process of interviewing a
witness after a criminal complaint has been filed where there are no
allegations the prosecutor discussed how the witness should testify?
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Holding:
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No. Prosecutors
are entitled to absolute immunity when they perform a “quasi-judicial
function.” When prosecutors perform
an investigative function normally conducted by police, as opposed to an
advocacy function of evaluating evidence and interviewing witnesses, they do
not act in a quasi-judicial manner.
The timing of the evidence gathering is critical. Investigation before there is probable
cause to arrest is clearly investigatory.
On the other hand, interviews conducted even after probable cause is
established are not necessarily protected.
In the instant case, the lack of evidence that the prosecutor
discussed with the witness how to present evidence in a court proceeding
undermined his ability to assert absolute immunity. The Ninth Circuit concluded: “[T]he interview notes show a
process of investigation – or, viewed in the light most favorable to
[plaintiff], a process of manufacturing evidence while performing an
investigatory function – not [prosecutors] acting as advocates by telling
[the witness] how she should testify.”
Id., p. 1103. In contrast, prosecutorial supervisors
were entitled to absolute immunity because the allegations that they condoned
the use of perjured testimony involved advocacy related to the judicial phase
of the criminal process.
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1.4.3
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Attorney Third-Party
Liability/Estate Planning Attorney’s Duty to Beneficiaries
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Case:
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Boranian v. Clark
( 2004) 123 Cal.App.4th 1012
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Issue:
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Does an estate planning attorney owe a duty to the
children of his client’s estate where the children contend that the will does
not reflect their mother’s true intent?
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Holding:
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No. In this
instance, the court found that the lawyer’s liability to the intended
beneficiary children is not absolute or automatic, and “there is no such
liability when the testator’s intent or capacity is placed at issue by the
allegedly intended beneficiary.” The
court held that while a duty may arise “to act with due care with regard to
the interest of the intended beneficiary, the scope of the duty owed to the
beneficiary is determined by reference to the attorney-client
relationship.” The children’s
allegations in this case would have put the attorney in a position where he
was potentially forced to act in their best interest, as opposed to the
directions of his client.
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Note:
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The court cited the case of Moore v. Anderson Zeigler Disharoon Gallagher & Grey (2003)
109 Cal.App.4th 1287. The
court made reference to the Moore
case: “As Moore also explains, a rule that extended a lawyer’s duties to
beneficiaries in this context would place ‘an intolerable burden’ on the
lawyer.”
The Court of Appeal issued this opinion on the same date
as the Featherson v. Farwell
opinion. Both cases deal with
essentially the same issue, and reach the same result, using the same
reasoning.
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1.4.4
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Attorney Third-Party
Liability/Estate Planning Attorney’s Duty to Beneficiaries
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Case:
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Featherson v.
Farwell (2004) 123 Cal.App.4th 1022.
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Issue:
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Does an estate planning attorney owe a duty to his
client’s beneficiary where the testator’s intent or capacity is questioned?
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Holding:
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No. In this
case, the attorney did estate planning work for a mother. When the mother passed away, the daughter
claimed that the attorney should have recorded a deed transferring the
mother’s house to her. The attorney
had not immediately recorded the deed, because he was concerned about the
mental and physical state of the mother, his client. The court found that, while beneficiaries
may often be owed a duty by the attorney in question, the lawyer’s liability
to the intended beneficiary is not automatic or absolute. The court commented that “there is no such
liability where the testator’s intent or capacity is questioned.” In this case, if the lawyer had acted in
the daughter’s best interest, as opposed to the mother’s best interest, the
lawyer would have been potentially breaching a duty owed to the mother. “Where, as here, the extension of that
duty to a third party could improperly compromise the lawyer’s primary duty
of undivided loyalty by creating an incentive for him to exert pressure on
his client to complete her estate planning documents summarily, or by making
him the arbiter of a dying client’s true intent, the court simply will not
impose that insurmountable burden on the lawyer.”
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Note:
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While the court did not impose a duty the lawyer in this
particular situation, there are cases that have repeatedly held that an
attorney who assumes preparation of a will incurs a duty not only the
testator client, but also to his intended beneficiaries, and a lack of privy
does not preclude the testamentary beneficiary from maintaining an action
against the attorney based on either the contractual theory of third party
beneficiaries or the tort theory of negligence. See e.g., Osornio v.
Weingarten discussed below.
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1.4.5
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Rule 3-310: Avoiding Representation of Adverse
Interests
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Case:
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Benasra v.
Mitchell, Silberberg & Knupp (2004)
123 Cal.App.4th 1179
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Issue:
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Does Code of Civil Procedure section 425.16, the
anti-SLAPP statute, require dismissal of a now-former client’s claim that an
attorney breached its duty of loyalty by accepting representation of an
adversary in an arbitration before ending its representation of the first
client in violation of the duty if loyalty?
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Holding:
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No. The Court
found that the potential breach of duty of loyalty and confidentiality caused
by the conflict of interest occurred not when the attorney stepped into court
to represent the new client, but when he abandoned the old client. It is not the attorney’s conduct in court
(a public forum) which forms the basis for the allegations of the old client,
but rather the potential violation of the ethical duty in accepting
representation adverse to the old client, while the representation of the old
client is still continuing. “In other
words, once the attorney accepts a representation in which confidences
disclosed by a former client may benefit the new client due to the
relationship between the new matter and the old, he or she has breached a
duty of loyalty.” The Court
continued, “As appellants so aptly put it, their claim is not based on
‘filing a petition for arbitration on behalf of one client against another,
but, rather, for failing to maintain loyalty to, and the confidences of, a
client.’” Id., p. 1189.
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Note:
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In this case, the court did not find that the respondent
attorneys had in fact breached a duty of loyalty or confidentiality, or
engaged in conduct that constituted an impermissible conflict of
interest. Rather, the court said that
the allegations of the appellants in the matter simply did not fall within
the first prong of the anti-SLAPP statute.
The court did not do any analysis other than an analysis of the first
prong. The second prong of the
anti-SLAPP statute is whether “the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.”
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1.4.6
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Penal Code Section 1054/
Criminal Discovery
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Case:
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Roland v. Superior Court ( 2004) 124 Cal.App.4th
154
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Issue:
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Are oral statements made by a witness directly to a
defense investigator or directly to defense counsel subject to disclosure?
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Holding:
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Yes. The purpose
of the criminal discovery statutes is to promote liberal discovery. Interpreting sections 1054.3 (defense to
prosecution) as well as 1054.1 (prosecution to defense) to include oral
statements of witnesses will allow both sides to acquire the greatest amount
of information with which to prepare their respective sides of the case,
“which in turn facilitates the ascertainment of the truth at trial.” Id.
at 165. Oral statements of
witnesses are subject to disclosure when they are communicated to defense
counsel by an investigator who has interviewed the witness, as well as when
the oral witness statement is made directly to defense counsel.
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Note:
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The court noted
that its holding would discourage attorneys from engaging in underhanded
tactics such as failing to write down witness statements in order to not have
to disclose them, Id. at 165, or
conducting in-person interviews instead of using investigators, so as to
exempt the statements from disclosure.
Id. at 167. In both of these discussions the court
cited from In re Littlefield (1993)
5 Cal.4th 122, 133: “such gamesmanship is inconsistent with the
quest for truth, which is the objective of modern discovery.” Id.
at 165, 167.
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1.4.7
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Ineffective Assistance of
Counsel
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Case:
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Florida v. Nixon
(2004) 125 S.Ct. 551
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Issue:
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Does defense counsel’s failure to get his capital
defendant-client’s express consent to a strategic concession of guilt
presumptively constitute prejudicial ineffective assistance of counsel?
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Holding:
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No. Defense
counsel’s failure to obtain the defendant’s express consent to employing a
strategy of conceding guilt at the guilt phase of a capital trial did not
automatically render counsel’s performance deficient. Despite this concession, a defendant
retains his rights as a criminal defendant to have the prosecution prove the
evidence against him beyond a reasonable doubt, as well as his rights to
object to the introduction of evidence and to cross-examine the witnesses
against him. Although defense counsel
has a duty to strategize a case with his client, “when a defendant, informed
by counsel, neither consents nor objects to the course counsel describes as
the most promising means to avert a sentence of death, counsel is not
automatically barred from pursuing that course.” Id., p. 555.
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Note:
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What distinguishes this case from many others is the
defendant’s unresponsiveness when defense counsel described his planned trial
strategy. The court held that the
reasonableness of defense counsel’s strategic choice to concede guilt at the
guilt phase of the trial after his client was unresponsive to his informing
his client of his strategy choice, should be judged under Strickland v. Washington (1984) 466 U.S. 668, 688: “Did counsel’s
representation ‘f[a]ll below an objective standard of reasonableness?’” Id., p. 555. The lower court
erroneously judged the reasonableness of defense counsel’s performance under
the standard announced in United States
v. Cronic (1984) 466 U.S. 648, which presumed deficient performance by
counsel as well as prejudice. Ibid.
The presumption of prejudice applies when defense counsel fails to
mount meaningful opposition to the prosecution’s case; it does not apply
“based solely on a defendant’s failure to provide express consent to a
tenable strategy counsel has adequately disclosed to and discussed with the
defendant.” Ibid.
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1.4.8
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Attorney Third-Party
Liability/Estate Planning Attorney’s Duty to Beneficiaries
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Case:
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Osornio v.
Weingarten (2004) 124 Cal.App.4th 304
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Issue:
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Does an estate planning attorney owe a duty of care to
the testator’s intended beneficiary, the testator’s care custodian, (1) “to advise the testator that her
intended beneficiary, [her care custodian], would be presumptively
disqualified unless the testator obtained a Certificate of Independent Review
from another attorney, under [Probate Code] section 21351, subdivision (b)”;
and (2) “to take appropriate measures to ensure that the testator’s wishes
were carried out by referring her to counsel to obtain such a
certificate”? Id., pp. 312-313.
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Holding:
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Yes. “An
attorney drafting instruments on behalf of the transferor-client – the
dispositive provisions of which include a proposed transfer to a
presumptively disqualified person under section 21350(a) – must assist the
client in making the transfer in a manner that does not unduly expose the transfer
to attack. . . . [T] he attorney owes a duty of care: (1) to advise the
client that, absent steps taken under 21351(b), the subject transfer to the
proposed transferee, if challenged, will have a significant likelihood of
failing because of the proposed transferee’s presumptive disqualification
under section 21350(a); and (2) to recommend that the client seek independent
counsel in an effort to obtain a Certificate of Independent Review provided
under section 21351(b).” Id.,
p. 334.
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Note:
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The court distinguished Moore, relied upon in both Boranian
v. Clark (2004) 123 Cal.App.4th 1012 and Featherson v. Farwell (2004) 123 Cal.App.4th 1022,
discussed above, because “no such problem of conflicting loyalties arises
here; imposing a duty upon [the attorney] under the circumstances presented
promotes the objectives of the client to transfer the client’s estate to the
nonclient/ beneficiary.” Id., p. 326.
In a footnote, the Court noted that neither Boranian nor Featherson was final as of the time of the Osornio opinion. In any
event, those cases, like Moore,
involved the imposition of a duty that “would place the attorney in a
position of having divided loyalties between his or her client, the testator,
and the beneficiary.” Id., p. 337, note 29. The issues in Osornio raised no such conflict.
The Court noted that it was reversing a judgment based
on a demurrer sustained without leave to amend. The Court noted that the “the facts may ultimately disclose
that it would have been unlikely for a variety of reasons that [the testator]
would have obtained a Certificate of Independent Review, even had [the
defendant-attorney] advised her of the importance of seeking counsel to
obtain it.” Id., p. 332.
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1.4.9
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Cal. Code Civ. Proc. §
2018: Attorney Work Product
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Case:
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Laguna Beach
County Water District v. Superior Court (2004) 2004 WL 2896565 (Cal.App.
4 Dist.)
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Issue:
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By sending letters containing thoughts, impressions and
conclusions about pending litigation to auditors, does a lawyer waive the
right to assert attorney work product protection?
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Holding:
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No. A disclosure
that does not contravene the purpose of the work product doctrine does not
waive the privilege. “’The purpose of
the work product doctrine is to protect information against opposing parties,
rather than against all others outside a particular confidential
relationship, in order to encourage effective trial preparation.’” Id.
at 4. (citing BP Alaska Exploration, Inc. v. Superior Court (1988) 199
Cal.App.3d 1240, 1256; see also Code Civ. Proc., section 2018,
subd.(a).) “[W]ork product protection
‘is not waived except by a disclosure wholly inconsistent with the purpose of
the privilege, which is to safeguard the attorney’s work product and trial
preparation. [Citations.]’ [Citation.]” Id.
(citing Oxy Resources California v.
Superior Court (2004) 115 Cal.App.4th 874, 891.)
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Note:
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In deciding this issue, the court did not find any
California law on the specific question of whether work product which is
revealed to an auditor in an audit response letter loses its protection. Id.
at 5. The court reached its
conclusion by examining federal court cases on both sides of the issue, and
distinguishing the ones that found against the protection. Id.
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IMPORTANT UPDATES:
On
July 21, 2004, the California Supreme Court granted review in Jasmine Networks, Inc. v. Marvell
Semiconductors, Inc. (2004) 117 Cal.App.4th 794, abstracted in issue 2 of Ethics Quarterly. The question in that case was whether a
party waives the protection of the attorney-client privilege by inadvertently
disclosing communications between the party and its attorney on the voicemail
system of the opposing party. The Court
of Appeal found that this could constitute a waiver. The court held that "the language of Evidence Code section
912(a) is clear that the holder of the privilege . . . may waive it by
disclosing the privileged information. . . .
There is no requirement in the statute itself, nor in the cases
interpreting the statute that the privilege holder intend to disclose the
information when that [sic] the holder makes an uncoerced
disclosure." Id., p. 804. Further action in the review process is deferred
pending consideration and disposition of a related issue in Rico v. Mitsubishi Motors Corp., or
pending further order of the court.
On December 15, 2004, the California Supreme Court
unanimously granted review in Flatley v.
Mauro, abstracted in the last issue of Ethics
Quarterly and previously reported at (2004) 121 Cal.App.4th
1523. Because the petition for review
was granted, the case is no longer citable authority. The case involved a civil extortion claim brought by Michael
Flatley, the “Lord of the Dance” star, against an attorney who threatened on
behalf of his client to “go public” with a claim that Flatley had raped his
client unless Flatley paid one million dollars. The court of appeal held that such a threat was not protected
speech under the anti-SLAPP statute.
The grant of review will provide an opportunity for the court to balance
the competing interests behind the litigation privilege/ First Amendment and
California Rule of Professional Conduct 5-100 which bars threats of criminal
proceedings to gain an advantage in civil litigation.
Disclaimer: Counsel should read the full text of the
cases discussed before relying on the necessarily limited discussion of them
here. Counsel also should be mindful
that some of the Court of Appeal cases addressed may be subject to
depublication or review by the California Supreme Court. All cases should therefore be checked to
confirm they are citable.
NEED FOR SDCBA MEMBER
FEEDBACK:
The Legal Ethics Committee is looking for our bar
members' views on the following two issues:
New Cal. R. Prof. Conduct
3-100(B) provides, "A member may, but is not required to, reveal
confidential information relating to the representation of a client to the
extent that the member reasonably believes the disclosure is necessary to
prevent a criminal act that the member reasonably believes is likely to result
in death of, or substantial bodily harm to, an individual" subject to
certain conditions precedent.
- Is
there anything unethical or unlawful about a client insisting, at the
outset of the representation, that the attorney waive this discretionary
right as a condition to representing the client in a specific matter?
- May
an attorney ethically and legally announce his or her election to
voluntarily abandon or waive this discretionary right at the outset
of the representation if such a situation ever arises in the course
of representing the client, regardless of any demand by the client?
Please contact Bob
Gerber at rgerber@sheppardmullin.com
with your responses.
COMMENTARY: A Statement is a Statement - Oral Witness Statements
Must Be Disclosed in Criminal Discovery
by Wendy L. Patrick, Esq.
Criminal discovery is governed by Penal Code
Section 1054 et seq, which describes the discovery obligations of both sides in
a criminal case. Under Section 1054.1,
the prosecution is obligated to disclose the enumerated information “if it is
in the possession of the prosecuting attorney or if the prosecuting attorney
knows it to be in the possession of the investigating agencies.” They also have the additional duty under PC
1054.1(e) disclose any exculpatory evidence.
Both sides are bound
by a reciprocal obligation to disclose the names and addresses of witnesses
intended to be called at trial as well as their statements. In addition, PC 1054.1(f) mandates
disclosure of “[r]elevant written or recorded statements of witnesses or
reports of the statements of witnesses whom the prosecutor intends to call at
the trial . . .” The reciprocal defense
obligation under Section PC 1054.3(a) is similarly phrased regarding witness
statements other than the defendant, mandating disclosure of “relevant written
or recorded statements of those persons, or reports of the statements of those
persons . . .” There has been
discussion in the criminal arena, however, as to what constitutes a witness
“statement” or “report.” Those issues
were addressed on November 18, 2004 by the California Court of Appeal, Third
District, in deciding Roland v. Superior
Court (2004) 21 Cal.Rptr.3d 151 [Not Yet Final].
Early in the opinion, Roland
quoted from In re Littlefield (1993)
5 Cal.4th 122, 129, in recognizing that in a criminal case, “all
court-ordered discovery is governed exclusively by--and is barred except as
provided by--the discovery chapter . . . enacted by Proposition 115.” Id.
at 153. The court noted the voters’
intent behind enacting the discovery statutes was to “reopen the two-way street
of reciprocal discovery” (Id. at 154 [quoting
Izazaga v. Superior Court (1991) 54
Cal.3d 356, 372], and “restore balance and fairness to our criminal justice
system.” Id. (citing Prop. 115, section 1(a).)
The holding in Roland, which will have a significant
impact on criminal case preparation, was that even oral statements made by
witnesses must be disclosed. In Roland, the defense attorney advised
court and counsel that he would be calling seven new witnesses at trial; the
court ordered him to provide the prosecution with all witness statements, both
written and oral. (Id. at 153.) The court gave
defense counsel the option of providing this information to the prosecutor by
giving him written reports of their statements, or simply by calling him and
providing the information in summary form over the phone. (Id.) Defendant Roland argued that PC 1054.3 did
not include the obligation to disclose unrecorded oral witness statements. (Id.)
The Roland court first examined statements
of witnesses that are conveyed to counsel through a third party. The court began its analysis of PC 1054.3 by
noting that the plain meaning of the language of PC 1054.3 included written
witness statements, video or tape-recorded oral statements, and also the “raw
written notes” of a defense investigator’s interview of a witness. (Id.
at 154-55 [citing Thompson v. Superior
Court (1997) 53 Cal.App.4th 480, 486].) The court proceeded to conclude through
examining the plain meaning and purpose of PC 1054.3 that the statute’s
disclosure requirement includes oral witness statements that are orally
communicated to defense counsel by third parties, such as an investigator. (Id.
at 155-56.) Part of the support for
this conclusion stemmed from a close examination of the statutory
language. The court noted that “[t]he
statute’s use of the word ‘or’ rather than ‘and,’ as well as its use of a comma
to separate ‘statements’ from ‘reports of the statements,’ indicates that the
words ‘written or recorded’ modify ‘statements,’ not ‘reports of the
statements.’” (Id. at 155.) The court also noted that PC 1054.3 used
the language “of those persons” two times, which was likely designed to
separate the two categories. (Id.)
The rationale and two-way street nature of the conclusion was further
explained, “[i]nterpreting section 1054.3 and concomitantly section 1054.1 to
include witnesses’ oral statements contained in oral reports to counsel will
help ensure that both parties receive the maximum possible amount of
information with which to prepare their cases, which in turn facilitates the
ascertainment of the truth at trial.” (Id. at 156.) Recognizing that there is no duty for defense counsel to acquire
written witness statements, (Id. at
157 [citing In re Littlefield (1993)
5 Cal.4th 122, 136]), the court explained that they cannot avoid the
duty to disclose relevant witness statements by simply failing to write down
the information. (Id. at 157.)
The court then
tackled the issue of whether oral statements made directly to defense counsel were required to be disclosed, and concluded
that they were. (Id. at 157.) The reasoning
behind this conclusion included the recognition that “excluding such statements
from the disclosure requirement of section 1054.3--and concomitantly section
1054.1--would undermine the voters’ intent because it would permit defense
attorneys and prosecutors to avoid disclosing relevant information by simply
conducting their own interviews of critical witnesses, instead of using
investigators to perform this task, and by not writing down or recording any of
those witnesses’ statements.” (Id. at 158.)
The impact of Roland
will have a widespread effect on criminal practitioners, because the issue of
how to deal with oral witness statements is a dilemma faced frequently in
criminal proceedings. Please stay tuned
as we follow the progression of this case, and case law in this area.