ETHICS QUARTERLY

A Service of the San Diego County Bar Association's Legal Ethics Committee

July 2006 Vol. 3, No. 2

INTRODUCTION

This edition of Ethics Quarterly covers cases from March 16, 2006 through June 15, 2006, with the exception of the first case which came down March 3, 2006. Committee Vice Chairman Luis Ventura, members Pat Hosey and Ed McIntyre and associate member Phoebe Gardiner prepared this edition. Luis Ventura served as the Coordinating Contributor and prepared the Commentary.

Watch for information on an upcoming seminar in October addressing the ethics of negotiation. On January 25, 2007 from 5:30 p.m. – 9:00 p.m. at the Bar Center, the Committee will present its annual CLE procrastinators’ program. The January program is entitled “Risky Business”: An Interactive Program in Professionalism, Exploring Actual Episodes of Ethical Dilemmas. Further information on the October and January programs will soon be available at the SDCBA web site at sdcba.org.

Comments or inquiries about the Ethics Quarterly should be directed to Committee Co-Chairs Heather Rosing (hrosing@klinedinstlaw.com) or Wendy Patrick Mazzarella (wendy.patrick@sdcda.org).

CASE NOTES
3.2.1	Rule 3-310: Avoiding Representation of Adverse Interests
Case:	Hitachi Ltd. v. Tatung Company (N.D. Cal. 2006) 419 F.Supp.2d 1158
Issue:	May a firm avoid disqualification from defending a patent infringement action for a long-standing client, notwithstanding that an attorney at the firm's small office handling the case formerly worked on a nearly identical case for plaintiff against a different defendant while an associate at plaintiff's law firm, where the firm: (1) warns the attorney that he will be fired if he shares confidential information with attorneys working on the matter; (2) submits a declaration from the attorney that he did not share such information with anyone at his new firm; (3) sets up a separate repository for case documents that the attorney cannot access; (4) sends a memo to the firm's entire intellectual property department about the conflict; (5) requires attorneys working on the case to discuss the case only behind closed doors; (6) offers to move the defense of the case to another office of the firm if necessary to avoid disqualification?
Holding:	No. The attorney was indisputably disqualified from working on the defense of the case against the plaintiff for whom he did substantial work on a nearly identical action while employed at the firm representing plaintiff in the current action. The Court acknowledged that the new firm erected the most effective ethical screening procedures possible. (Id., p. 1164.) Nonetheless, the Court held that the attorney's new firm was disqualified under the "established rule" in California cases applying Rule of Professional Conduct 3-310(E) that "where an attorney is disqualified from representing a client because that attorney had previously represented a party with adverse interests in a substantially related matter [,] that attorney's entire firm must be disqualified as well, regardless of efforts to erect an ethical wall." (Id., p. 1161, emphasis added, citations omitted.) The Court recognized that "recent California and Federal decisions may indicate an increased willingness in California to allow timely and effective ethical walls to prevent vicarious disqualification." (Ibid., citing L.A. Law article and discussing, at pp. 1162-1663, People ex rel. Department of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135 and In re County of Los Angeles (9th Cir. 2000) 223 F.3d 990.) Nonetheless, the Court found that "these cases, though indicating the possibility of a future shift in California law, have not altered the established rule of vicarious disqualification." (Id., p. 1162.) The Court went on to hold that, even if California law allowed ethical walls in some circumstances, the Court would still exercise its discretion to disqualify the firm in this case because: (1) the case on which the associate worked was nearly identical to the current case and (2) the defense of the case was being handled by an office of the firm with only 6 attorneys whose practices were restricted to intellectual property, one of whom was the disqualified associate. (Id., pp. 1164-1165.) The Court rejected as too late the firm's offer to transfer the case to one of its other offices; the associate had already had significant contact with the attorneys handling the matter. "The time to have moved the matter would have been when the ethical conflict was discovered, not after losing a motion to disqualify." (Id., p. 1165.)
3.2.2	Attorney-Client Privilege
Case:	United States v. Griffin (9th Cir. 2006) 440 F.3d 1138
Issue:	Were communications between a prison inmate and his wife, who was an attorney, protected by the marital communications privilege merely because they were placed in an envelope on which the inmate wrote “Attorney at Law.”
Holding:	No. “A prison inmate has no right to protect from disclosure to the government as privileged martial communications those portions of his [nonconfidential] letters to his wife/attorney that were improperly included in the envelopes on which he wrote ‘Attorney at Law.’”
Note:	While the marital communications privilege generally protects from disclosure private communications between spouses, California law nowhere provides that an inmate may correspond confidentially with his or her spouse: “All nonconfidential inmate mail is subject to being read in its entirety . . . before it is mailed for or delivered to an inmate.” (Cal. Pen. Code § 2601(b).) The regulations further provide that an inmate may not use confidential mail, such as correspondence to an attorney, to protect non-confidential correspondence from scrutiny. (Griffin, 440 F.3d at 1145.)
3.2.3	Attorney-Client Privilege
Case:	People v. Navarro (2006) 138 Cal.App.4th 146 [previously abstracted at EQ, 2.3.8]
Issue:	Are criminal defendants entitled to suppress evidence obtained by breach of the attorney-client privilege by their sister-lawyer where the police did nothing to procure the breach?
Holding:	No. Courts do not apply the “fruit of the poisonous tree” doctrine to violations of evidentiary privileges. Therefore, the statutory privilege, standing alone, does not permit the search warrant to be quashed. Thus, where a search warrant is obtained based on information provided to the police in breach of the lawyer-client privilege, the privilege by itself does not provide a "fruit of the poisonous tree" type remedy absent governmental misconduct resulting in a constitutional violation.
Note:	The Court identified four questions a trial court should address in reviewing in camera a defendant’s claim that a search warrant was obtained because the police procured a breach of the attorney-client privilege. “First, was the confidential informant the person defendant claims acted as his lawyer and breached the lawyer-client privilege? Second, if so, did a lawyer-client relationship exist as to the particular matter at issue in the criminal case against the defendant? Third, if there was an attorney-client relationship as to the particular matters involved in the criminal charge, did the lawyer divulge privileged information? Fourth, if so, did the government procure the breach” under the applicable test? “A negative answer to any one of these questions would necessarily lead to a finding that no Fifth Amendment violation occurred.” (Id., note 22, citations omitted.)
3.2.4	Contact with Former Potential Class Members
Case:	Experian Information Solutions, Inc. v. Superior Court (2006) 138 Cal.App.4th 122
Issue:	Following denial of a motion for class certification, may a court authorize plaintiff’s counsel or a neutral third party to contact former potential class members about their possible claims against the defendant?
Holding:	No. Plaintiffs are permitted pre-certification communication with potential class members for the purpose of investigation and preparation of their claims, which is part of a well-established policy acknowledging the importance of class actions. However, after a class-certification has been denied, the plaintiff represents herself only, not putative class members, and there is no legal basis to permit a court-approved communication that the former potential class members have claims and that those claims might be negatively affected by the statute of limitations. (Id. at 131.)
Notes:	Nothing in the opinion “prohibits a plaintiff’s counsel from communicating with potential clients and witnesses whose identities are not covered by a protective order as long as such communications are permitted under the California Rules of Professional Conduct.” (Id. at 132.) The Court of Appeal also authorized a court-approved letter to former class members as part of plaintiff’s effort to gather evidence relevant to her now-individual case. Such a letter, however, had to be sent by a neutral third party. Also, to balance plaintiff’s right to prepare her case and the former class members’ right to financial privacy, the former class members had to consent in writing before being contacted by plaintiff’s counsel.
3.2.5	Appearance of Impropriety
Case:	People v. Petrisca (2006) 138 Cal.App.4th 189
Issue:	In a prosecution for murder for wrong-way driving, was recusal of the entire Los Angeles District Attorney’s office warranted pursuant to Penal Code section 1424 where one of the deceased victim’s sons was a Deputy LA DA, but where the assigned prosecutor had no personal relationship with the deceased’s son?
Holding:	No. Penal Code section 1424 requires denial of a recusal motion against the assigned prosecutor “unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial.” “In believing that it would be better if another agency prosecuted this case because any prosecutor from the DA’s office would naturally feel more pressure and be more uncomfortable than a prosecutor from another agency, the trial court failed to apply the correct legal standard required under section 1424. The prosecutor’s degree of comfort or self-imposed pressure has no bearing on whether a conflict exists or whether a defendant will receive a fair trial. The goal of the trial judge [under 1424] is not to discover the prosecutorial agency that will be most comfortable handling any particular case or trial, but whether a conflict exists that is so grave that it is unlikely the defendant will receive a fair trial.” (Id at p. 196.)
3.2.6	B&P Code §6068(b): Duty To Maintain Respect Due to Courts and Judicial Officers
Case:	In re S.C. v. Kelly E. (2006) 138 Cal.App.4th 396
Issue:	Was counsel subject to disciplinary referral to the State Bar for misconstruing a judge’s involvement in a juvenile dependency proceeding as improper bias?
Holding:	Yes. No reasonable attorney could interpret a judge’s statement that his questioning of a developmentally disabled alleged molestation victim “‘was very active, and [he] wasn’t just an impartial person sitting on the sidelines evaluating the child’” as an admission of judicial bias. “It simply was an observation that because of the minor’s developmental disability, the judge was unable to just sit back to hear and observe her testimony; instead, he was required to get involved in the questioning in order to ensure that he understood the minor’s answers.” (Id. at 424.) Counsel’s “accusation that the trial judge was biased in favor of [the agency] and interceded in an effort to help [the agency] prove its case appears to constitute contempt of court. Rather than institute contempt proceedings, we have decided to leave it to the State Bar of California to address the issue.” (Ibid.)
3.2.7	Rule 3-310: Avoiding Representation of Adverse Interests
Case:	United States v. Elliot (9th Cir. 2006) 444 F.3d 1187
Issue:	Did a defense attorney’s former representation of a defense witness with respect to a package of cocaine that was the basis of charges against the attorney’s current client constitute a conflict of interest sufficient to justify a mistrial under the manifest necessity doctrine?
Holding:	Yes. The defense attorney’s prior representation of the witness, during which he obtained confidential information from and gave legal advice to the witness regarding the package, created at the very least a potential conflict in the representation of his current client. The witness’s testimony would be used to exonerate the attorney’s current client, yet by giving such testimony the witness would be incriminating himself. This conflict, the defendant’s refusal to waive the same, his refusal to allow new counsel to represent him, and his current counsel’s refusal to assist the court in addressing the mistrial question because of counsel’s apparent desire to cover up his violations of Hawaii’s Rules of Professional Conduct, were sufficient to establish manifest necessity to declare a mistrial. “Faced with an evident conflict of interest and a defendant apparently attempting to manufacture an issue for appeal, the district court did not err in finding manifest necessity for a mistrial.” (Id. at 1196.)
Notes:	An attorney’s conflict of interest in a criminal case can arise in cases of simultaneous or successive representation. Because there was a manifest necessity for the mistrial even over the defendant’s objections, the Court of Appeals held that the District Court properly denied defendant’s motion to dismiss retrial on double jeopardy grounds.
3.2.8	Attorney Discipline, Appropriate Degree of
Case:	In re Oheb (State Bar Ct. 2006) 2006 WL 1132036
Issue:	Is disbarment justified for an attorney who pled no contest to two felonies under Penal Code § 549, which prohibits an individual from soliciting or accepting business from another who intends to make false or fraudulent insurance claims, where the facts and circumstances surrounding the conviction involved moral turpitude?
Holding:	Yes. Although a violation of Penal Code § 549 does not inherently involve moral turpitude so as to authorize summary disbarment under Bus. & Prof. Code § 6102(c), the respondent’s actions, in fact, involved moral turpitude. While the State Bar Court found that there was insufficient evidence to conclude that respondent knew the personal injury cases were staged by the disbarred attorney who referred them to him in exchange for a portion of the fees, the State Bar Court found the following facts relevant to determining respondent’s moral turpitude: (1) in deliberate violation of rule 1-310, he entered into the fee splitting agreement with someone he knew had been disbarred; (2) failed to investigate the former attorney’s disciplinary record even though he knew there were disciplinary charges pending against him; (3) respondent engaged in furthering capping; (4) was reckless in allowing the disbarred attorney to handle interviews, sign up clients, and conduct settlement negotiations; (5) respondent purposely altered financial records to disguise the payments to the disbarred attorney; and (6) when notified of the nature of the scheme, respondent failed to meet with his clients and failed to advise them accordingly, e.g., by advising them to seek the advice from a criminal defense attorney. (Id. at *28-31, 41.)
Note:	The State Bar Court found that “it was purely fortuitous that more harm did not occur as a result of the facts and circumstances surrounding respondent’s criminal offense, given especially that the accident claims pressed in the name of respondent’s office appear to have arisen from fraud and that respondent’s conduct was both grossly reckless in a number of ways and, by disguising financial entries, intentionally dishonest. As the overriding purposes of lawyer discipline are to protect the public, maintain high professional standards and preserve the integrity of the legal profession (std. 1.3), disbarment is appropriate. . . .” (Id. at *46.)
3.2.9	Prosecutorial Ethical Duties
Case:	Morris v. Ylst (9th Cir. 2006) 447 F.3d 735
Issue:	Must a status report prepared by a prosecutor’s legal assistant be disclosed to the defense as material exculpatory evidence under Brady where the report is essentially a statement of the prosecutor’s opinion and thoughts about whether a government witness had testified truthfully enough to receive the benefit of a plea bargain?
Holding:	No. Brady v. Maryland (1963) 373 U.S. 83 does not require a prosecutor to disclose to the defense his opinion work product. “The animating purpose of Brady is to preserve the fairness of criminal trials. 373 U.S. at 87. However, fairness does not encompass an obligation on the prosecutor’s part to reveal his or her strategies, legal theories, or impressions of the evidence. . . . Thus, in general, a prosecutor’s opinions and mental impressions of the case are not discoverable under Brady unless they contain underlying exculpatory facts.” (Id. at 742.)
Note:	The Court went on to conclude that no reversal of the conviction for first degree murder was required because there was no prejudice to the defendant from failing to turn over the report, even assuming it contained exculpatory facts unknown to the defense. That is because the testimony of the witness addressed in the report been “thoroughly discredited at trial and there was independent compelling evidence of [the defendant’s] guilt.” (Id. at 743.) The Court was persuaded “beyond any doubt” that the outcome of trial would have been the same. (Id. at 746.)
3.2.10	Attorney Discipline, Appropriate Degree of
Case:	In the Matter of Brockway, 2006 WL 1360438 (State Bar Ct.)
Issue:	Was one-year actual suspension sufficient discipline for an attorney who committed 14 counts of misconduct, including four each of failing to perform competently and improper withdrawal from employment, in matters for four immigrant clients where: (1) all four clients sought the attorney’s help to remedy pressing problems; (2) the attorney’s inaction on his clients’ behalf exacerbated their desperate situations; (3) the attorney previously had been suspended for three months; (4) the attorney failed to cooperate with the State Bar; (5) was indifferent to the consequences of his misconduct; and (6) lacked candor?
Holding:	No. The State Bar Court recommended the attorney be suspended for five years, stayed, and placed on five years’ probation with an actual two-year suspension and satisfaction of other requirements. “[A] review of similar cases leads us to conclude that greater discipline than the one-year actual suspension recommended by the hearing judge is required under the circumstances presented here. . . . [¶] Generally, where four to six clients have been abandoned or suffered from incompetent representation, the discipline has included an actual suspension of two years.” (Id. at *15.)
Note:	The attorney appealed the hearing judge’s recommendation of one-year actual suspension as too severe. While the State Bar Court recommended an increased level of discipline instead, the Court rejected the State Bar’s request for disbarment. “[W]e do not find on this record clear and convincing evidence of a pattern of abandonment or habitual disregard of clients’ interests mandating disbarment. . . .” (Id. at *17.)
3.2.11	Attorney-Client Privilege, Work Product Rule
Case:	Tien v. Superior Court (2006) 139 Cal.App.4th 528
Issue:	In a class action for wage and labor violations against an employer, are the identities of the employees who contacted plaintiffs’ counsel in response to a neutral letter sent to them by both parties subject to the attorney-client privilege or work product doctrine?
Holding:	No. The requested information is not protected attorney work product (C.C.P. § 2018.030) because class counsel was merely the passive recipient of telephone calls. (Id. at 536.) The attorney-client privilege (Evid. Code §§ 951, 952, 954) is not implicated because the general rule that the privilege does not apply to the identities of the clients applies. Neither exception to the rule applies because: (1) disclosing the names of the clients will not implicate them in unlawful activity or expose them to criminal or civil liability and; (2) disclosing the names of the class members who contacted plaintiffs’ counsel did not disclose any personal, confidential information. (Id. at 537-538.)
Note:	The Court of Appeal nonetheless held plaintiffs were entitled to a protective order because the disclosure of the names, addresses, and phone numbers of the employees who contacted class counsel would violate the privacy rights of the employees found in Cal. Const., Art. I, § 1. They had a significant interest in maintaining their privacy because of the concern that disclosure of the fact they contacted plaintiff’s class counsel might result in adverse employment action. Further, the employer had no compelling need to learn their identities, despite the fact that they might have some information that is relevant. (Id. at 539-541.)
3.2.12	Rule 3-310: Avoiding Representation of Adverse Interests
Case:	People v. Baylis (2006) 139 Cal.App.4th 1054
Issue:	In a criminal proceeding, did the trial court abuse its discretion in denying defendant’s motion to substitute his appointed counsel with retained counsel where the retained counsel had an actual conflict of interest under Rule of Professional Conduct (RPC) 3‑310(E)?
Holding:	No. Despite the defendant’s general right to counsel of his choosing, the retained counsel was under an actual and substantial conflict of interest in purporting to represent defendant against various counts of sexual assault because the same counsel had previously represented the defendant’s brother who had also been previously charged with the very same offenses with which defendant was charged. This created an actual and substantial conflict of interest involving the counsel’s duty of confidentiality to the former client, i.e., the brother. In matters of successive representation of different parties where the matters are substantially related, RPC 3‑310(E) governs. The two representations were substantially related because both involved the same sexual assaults, the subsequent police investigations, misidentification by the victim, the legal strategy of mistaken identity between the brothers, and, as trial counsel for the brother in the former legal proceeding, the brother would normally have imparted confidences to the retained counsel. Although 3-310(E) and governing case law allow for the informed written waiver of an actual conflict, both the former client and current client must intelligently waive the same. Although the trial court found that defendant made an informed written waiver, the Court of Appeal agreed with the trial court’s separate conclusion that the former-client brother’s purported written waiver was insufficient because it did not specifically address the adverse consequences