ETHICS QUARTERLY

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

January 2007, Vol. 3, No. 4

INTRODUCTION

This edition of SDCBA Ethics Quarterly covers cases from September 16, 2006 through December 15, 2006.  Committee Chair Wendy Patrick Mazzarella and Committee members David Cameron Carr, Steve Oetting, and Erin Penning prepared this edition.  Steve Oetting served as the Coordinating Contributor and Wendy Patrick Mazzarella prepared the Commentary.

The Committee congratulates Committee advisor Heather Rosing on her recent election as President-Elect of the San Diego County Bar Association and expresses its appreciation for her distinguished year of service as Co-Chair of the Committee.

On Thursday, January 25, from 5:30 p.m. – 9:00 p.m. at the Bar Center, the Committee will present its annual CLE procrastinators’ program.  The program is entitled “Risky Business”:  An Interactive Program in Professionalism, Exploring Actual Episodes of Ethical Dilemmas.  To register for this program, please go to the SDCBA web site at www.sdcba.org.

Comments or inquiries about the Ethics Quarterly should be directed to Committee Chair Wendy Patrick Mazzarella (wendy.patrick@sdcda.org).

 

CASE NOTES

 

3.4.1

Avoiding Representation of Adverse Interests

 

Case:

Fremont Indemnity Company v. Fremont General Corporation (2006) 143 Cal.App.4th 50

 

Issue:

 

Does a law firm’s concurrent representation of related corporate entities in two separate matters in which the clients’ interests did not conflict require disqualification where a conflict existed between these entities in a third matter in which the law firm did not represent either entity?

 

Holding:

 

No.  Rule 3-310(C)(3) prohibits the concurrent representation of clients without informed written consent only if the attorney represents one of the clients in a matter in which the clients' interests are adverse; it does not prohibit the concurrent representation of clients whose interests are adverse only in a matter in which the attorney does not represent either client.  (143 Cal.App.4th at 65.)  That the clients’ interests were adverse in a third matter, in which the law firm did not represent either one of them, “does not implicate the duty of loyalty or justify disqualification.”  (Id. at 66.) 

Note:

The Court of Appeal also found that there was no substantial relationship between the prior representation of the party seeking disqualification and the current representations. That counsel might have had a close and personal relationship with the former client does not establish a substantial relationship absent some evidence “before the trial court [that] supports a rational conclusion that information material to the . . . former representation given its factual and legal issues is also material to. . . the current representation given its factual and legal issues.”  (Id. at 68.)

 

 

 

3.4.2

Prosecutorial Recusal

 

Case:

Haraguchi v. Superior Court (2006) 49 Cal.Rptr.3d 590 (rev. granted)

 

Issue:

Did writing, self-publishing and promoting a novel based on the case of a criminal defendant charged with rape by intoxicating agent, which includes a heroic criminal prosecutor and a defendant depicted as a monster, create a disqualifying conflict-of-interest for the assigned prosecutor?

 

Holding:

Yes.   The Court of Appeal, noting that this was a case of first impression, found that the prosecutor was improperly using her official position to obtain personal financial gain, as the connection with the Santa Barbara County District Attorney's office was a major selling point for the book.  Her continued prosecution of the case would be unseemly.  “No current public employee should be permitted to exploit his or her official position as a lever to earn extra private income which will inure to the detriment of the employer.”  (Id. at 596.) 

 

The Court further concluded that a disabling conflict existed because there was a “reasonable possibility” that the prosecutor may not exercise her discretionary functions in an evenhanded manner.  There also was “a reasonable possibility that [the prosecutor’s] desire to see her book succeed is so strong that it will trump her duty as a prosecutor "to see that justice is done and to accord to defendants their constitutional rights.”  (Id. at 597, internal quotation marks and citation omitted.)

 

The Court declined to find that the prosecutor was recused wholesale from prosecuting criminal or sexual assault cases.  “We conclude only that she has a disabling conflict of interest in the instant case, where petitioner is being prosecuted for raping an intoxicated person while the prosecutor is promoting her novel involving the identical charge.”  (Id. at 598, footnote omitted.)

 

The Court denied the request to recuse the entire Santa Barbara District Attorney’s office because there was “no evidence of the likelihood of unfairness” if another prosecutor in the office took over the case.  (Id. at 591, note 1.)

 

Note:

On December 20, 2006, the California Supreme Court decided to grant review of this case and the companion case to Hollywood v. Superior Court abstracted immediately below.  Neither case is citable under Rule of Court 976(d)(1), but both are important and therefore are included here.

 

3.4.3

Prosecutorial Recusal

 

Case:

Hollywood v. Superior Court (2006) 49 Cal.Rptr.3d 598 (rev. granted)

 

Issue:

Must the prosecutor assigned to a capital murder case be disqualified where he furnished information from the case file to filmmakers, while the defendant was still a fugitive, and acted as an unpaid consultant to them in making the film?

 

Holding:

Yes.  Because a capital murder defendant is entitled to a prosecutor with the "highest degree of integrity and impartiality" and free of "personal or emotional involvement" the Court of Appeal reversed the order denying the motion to recuse the assigned prosecutor.  (49 Cal.Rptr.3d at 606.)  “In this first impression death penalty case we should not give our imprimatur to [the deputy DA’s conduct or embolden other prosecutors to assist the media in the public vilification of a defendant in a case which is yet to be tried.”  (Ibid.)  The Court of Appeal found no basis to recuse the entire DA's office because the defendant failed to show that the elected district attorney knew about the deputy DA’s conduct.  (Id. at 608.)

Note:

Presiding Justice Gilbert concurred to stress that, in his view, the Court’s analysis applies “irrespective of whether this is a death penalty case.”  (Id. at 608.)  The deputy DA’s “actions allowed ‘show business’ to cast an unseemly shadow over this case.  The prosecution of criminal cases and entertainment enterprises are best kept separate.”  (Id. at 609.) 

On December 20, 2006, the California Supreme Court granted review of this case and the companion case to Haraguchi v. Superior Court abstracted immediately above.  Neither case is citable under Rule of Court 976(d)(1), but both are important and therefore are included here.

3.4.4

Discovery Against Opposing Counsel

 

Case:

Carehouse Convalescent Hospital  v. Superior Court  (2006) 143 Cal.App.4th 1558

Issue:

In a wrongful death action against a nursing home, may plaintiffs’ counsel depose defense counsel about defense counsel’s calculations of the legally required staffing based on the home’s staffing data and applicable regulations?

 

Holding:

No.   “Depositions of opposing counsel are presumptively improper, severely restricted, and require ‘extremely’ good cause – a high standard.” (Id. at 1562 [citations omitted].)  A three-prong test is utilized in determining when to take an attorney’s deposition.  The three considerations are: (1) the availability of other practicable means of acquiring the desired information, (2) whether the information is critical to case preparation, and (3) whether the information is subject to a privilege. (Id. at 1563.)  “Each of these prongs poses an independent hurdle to deposing an adversary’s counsel; any one of them may be sufficient to defeat the attempted attorney deposition.”  (Ibid.)   The Court of Appeal found that plaintiffs had failed to show that they were unable to get the information another way and had failed to show that the information was crucial to their case.  (Id. at 1564.)    

 

Even had plaintiffs met their burden under the first two prongs of the test, the Court of Appeal held that defense counsel met her burden of establishing that such calculations constituted work product under Cal. Code of Civ. Proc. §2018.030(a).  (Id. at 1565.)  Defense counsel “detailed the subjectivity of her decisionmaking process in preparing a writing regarding how to classify [defendant’s] employees during the pertinent times for purpose of ascertaining the daily staffing ratios.  This information is of a derivative character, and did not exist independently of her pretrial efforts to prepare discovery responses.”  (Ibid.)

 

 

3.4.5

Avoiding Representation of Adverse Interests/Unauthorized Practice of Law

 

Case:

Lyddon v. Rocha-Albertsen (E.D. Cal. 2006) 2006 WL 3086951

 

Issue:

Is an attorney-client contract formed in California when counsel licensed in Mexico but not California begins work for a U.S. citizen and California resident, where counsel’s Tijuana-based law firm is affiliated with a San Diego-based law firm?

 

 

Holding:

Yes.  In a lengthy opinion, the U.S. District Court held that a California federal court has personal jurisdiction over counsel licensed in Mexico who, although not licensed to practice law in California, actively solicits legal business in California, seeks referrals from a California lawyer, has meetings with his California-based client in California, and communicates with his client in California about matters that concern Mexican real property and about the client’s activities in both California and Mexico.  2006 WL 2976717, at *20-27.  Counsel and client intend for California law to apply to their attorney-client relationship dealings where counsel begins work for a client, who is a U.S. citizen and California resident, while at a Tijuana law firm affiliated with the firm’s offices in San Diego.  (Id. at *28-29.)

 

The Court went on to hold that counsel licensed to practice in Mexico but not in California nonetheless had not engaged in the unauthorized practice of law in violation of  Cal. Bus. & Prof. Code § 6126(a) because the predominant majority of legal work was performed in Mexico.  (Id. at *39.)

 

Finally, the Court concluded that counsel was not entitled to payment for properly performed services when he performed other services that could not be separately apportioned in breach of the fiduciary duties of good faith and fair representation, including the duty of loyalty.  “Counsel is entitled to no compensation for conduct which is a breach of his duty of loyalty, if such conduct constitutes a willful and deliberate beach of a contract of service.  [Counsel] is not entitled to compensation even for properly performed services for which no compensation is apportioned.”   (Id. at *31.) 

 

Note:

Counsel’s self-dealing conduct included fraudulently inducing the client to execute a $500,000 promissory note in Mexico for attorney services related to sale of the client’s real property in Mexico.  The Court found the promissory note was “procured by self-dealing in violation of the attorney’s duty to fully inform his client about the meaning and legal consequences of the document the attorney prepared for his client to sign” and “procured without knowledge and informed consent of the client-promisor.”   (Id. at *30.)

 

3.4.6

Rule 3-310: Avoiding Representation of Adverse Interests

 

Case:

Dino v. Pelayo (2006) 145 Cal.App.4th 347, 51 Cal.Rptr.3d 620

Issue:

May defendants disqualify a lawyer who is jointly representing two plaintiffs based on the defendants’ right to have confidential mediation with each of the plaintiffs?

 

Holding:

No.  “[S]ome sort of confidential or fiduciary relationship must have existed before a party is entitled to prevail on a motion to disqualify an attorney predicated on the actual or potential disclosure of confidential information.”  (51 Cal.Rptr. at 624.)  Here, the defendants conceded there was no attorney-client or other fiduciary relationship between them and the attorney.  (Id. at 625.)  The mere fact that the parties had agreed to participate in confidential mediation did not establish a sufficient relationship between them and the attorney.  (Ibid.  See also, Id. at 628, note 7.)

 

Note:

In ordering the attorney disqualified, the trial court erred in finding that the attorney had placed at risk a duty of confidentiality owed to his two clients, rather than focusing on whether he owed a duty of confidentially to the defendant.  (Id. at 625.)

 

3.4.7

Rule 3-310:  Avoiding Representation of Adverse Interests

 

Case:

Oaks Management Corp. v. Superior Court (2006) 145 Cal.App.4th 453, 51 Cal.Rptr.3d 561

Issue:

Must two attorneys be disqualified from representing the plaintiffs at trial where they had a lender/borrower relationship with the defendant that ended several years before the litigation?

 

Holding:

No.  Even if the attorneys had received confidential financial information in conjunction with the loans, there was “‘no harm, no foul’” because the defendant had inadvertently disclosed more recent financial data during the course of the present litigation.  (51 Cal.Rptr.3d at 572.)

 

Note:

In applying the “no harm, no foul” rule, the Court of Appeal observed that rule 3-310 of the Rules of Professional Conduct did not apply because that rule, unlike earlier rules, controls only conflicts of interest and disqualification motions in the context of attorney-client relationships.  Because there was no attorney-client relationship, mere exposure to the confidences of an adversary did not warrant disqualification.  (Id. at 569-570.)

 

3.4.8

Rule 3-310:  Avoiding Representation of Adverse Interests

 

Case:

Faughn v. Perez (2006) 145 Cal.App.4th 592

Issue:

Must an attorney be disqualified from representing parents in a birth-related negligence action against a hospital when he formerly represented the parent corporation of the hospital in defending a series of birth-related negligence actions?

 

Holding:

No.  In successive representation cases, a party may obtain the disqualification of an attorney by establishing that the targeted attorney (1) has actual knowledge of material confidential information or (2) is presumed to have acquired confidential information because of the relationship between the prior representation and the current representation.  The hospital failed to demonstrate the attorney actually obtained confidential information during the course of his prior representation of other hospitals in the parent corporation’s system.  Further, the acquisition of confidential information would not be presumed because the hospital failed to show a substantial relationship between the former and current representations.   Specifically, there was no showing that the decision makers in the parent corporation and the hospital were the same, the practices and procedures of the two entities was the same, or that the training, practices, or procedures related to care given at the facilities sued in the past cases were the same as those of the hospital sued in the present case.

 

Note:

The Court of Appeal concluded that the hospital relied too heavily on inferences, and did not support its motion to disqualify with evidence within its control that could have been disclosed without compromising confidential information.

 

3.4.9

Review and Use of Metadata

Case:

ABA Formal Opinion 06-442

 

Issue:

Do the ABA Model rules of Professional Conduct permit lawyers to review and use embedded information contained in e-mail and other electronic documents, whether received from opposing counsel, an adverse party or an agent of an adverse party?

 

Holding:

Yes.  There is no specific prohibition anywhere in the Model Rules against a lawyer reviewing and using metadata in properly received electronic documents.  Such information is routinely found in many programs and documents.  Lawyers who are concerned about revealing such metadata may choose to limit its inclusion by “scrubbing” it from documents or sending alternate versions of the documents in question.

 

Note:

The Opinion contains some interesting commentary about Model Rule 4.4(b), which provides that a lawyer who receives a document relating to the representation of his or her client that they know was inadvertently sent “shall promptly notify the sender.”  The opinion states that even if metadata transmission were classified as “inadvertent,” this Rule makes no mention of whether or not a lawyer would be ethically permitted to read, review, or use such information.

 

 

 

 

IMPORTANT UPDATE:  On October 18, 2006, the California Supreme Court granted review in Williams v. Superior Court, previously published at 45 Cal.Rptr.3d 452.  (See Ethics Quarterly 3.3.1.)  

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.

 

 


COMMENTARY:  Attorney, Witness, or Defendant? 

Deposing your Opposing Counsel.

by Wendy Patrick Mazzarella, Esq. [1]

As a lawyer, it may be one of your worst nightmares.  There you are in a chair in a small room, being asked questions about your case from of all people, your opposing counsel on the same case!  And you are obligated to answer the questions truthfully.  There is even a court reporter in the room taking down your answers.  This seems so real, you think.  But how can that be?  Doesn’t this just have to be a bad dream?  Although this scenario may sound shocking to many lawyers, others have been pushing for this scenario to become a reality.  This issue was addressed recently by the California Court of Appeal, Fourth District, in Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558.

In Carehouse, the lawyers for the family of a 90-year-old man (decedent) sued Carehouse Convalescent Hospital for elder abuse and wrongful death.  (Id. at 1561-62.)  Lawyers for Carehouse compiled some data in response to the other side’s demands, from other information to which both sides had equal access.  (Id. at 1561.)  When lawyers for the decedent demanded further access to this data, Carehouse raised the work product privilege.  (Id.)  The lower court directed Carehouse’s lawyer to provide the information sought by submitting to a deposition, explaining that “[i]f Defendant’s Counsel has made independent decisions regarding the classification of certain employees of Defendant, she has placed herself in the position of being an expert witness, and plaintiff is entitled to depose her as an expert.”  (Id. at 1562.) 

In addressing the issue, the appellate court began by noting that “[t]he adversarial system of justice presumes that the attorneys for each side oppose one another, not depose one another.”  (Id. at 1560.)  The court cited Code Civ. Proc Section 2018.020(b) in its discussion of the policy considerations against deposing opposing counsel, a provision designed to “[p]revent attorneys from taking undue advantage of their adversary’s industry and efforts.”  (Id. at 1562 [citing Code Civ. Proc., Section 2018.020 (b)].) “’Discovery was hardly intended to enable a learned profession to perform its functions . . . on wits borrowed from the adversary.”” (Id. [citations omitted].)

The Carehouse court explained that in California, a three-prong test is utilized in determining when to take an attorney’s deposition.  The three considerations are: 1) the availability of other practicable means of acquiring the desired information, 2) whether the information is critical to case preparation, and 3) whether the information is subject to a privilege. (Id. at 1563 [citations omitted].)  Failing to meet the burden under any one of these prongs bars the deposition of opposing counsel.  (Id.)  In justifying this high hurdle, the court explained that “[d]epositions of opposing counsel are presumptively improper, severely restricted, and require ‘extremely’ good cause – a high standard.” (Id. at 1562 [citations omitted].)  In applying this three-prong test to the instant case, the court concluded the moving parties had not met their burden.  Consequently, the court ordered that the deposition of Carehouse’s lawyer not be taken.  (Id. at 1566-67.) 

The court rejected as a “fallacy” the decedent’s lawyer’s argument that Carehouse’s lawyer should be treated as an expert, explaining that “[t]he argument . . . if taken to its logical conclusion, would permit the deposition of an attorney who used his or her impressions, conclusions, opinions or legal research or theories to assist the client’s responses to requests for admissions.”  (Id. at 1565.)  Because the lawyer for Carehouse is an advocate who has not been designated as an expert witness who will testify at trial, her deposition was not relevant and her opinions are protected as work product.  (Id. [citing Hernandez v. Superior Court (2003) 112 Cal.App.4th 285, 297].)

 


[1] Wendy Patrick Mazzarella is a Deputy District Attorney for San Diego County and the Chair of the SDCBA Legal Ethics Committee.  The views expressed are hers alone and are not necessarily those of the SDCBA