ETHICS QUARTERLY A Service of the SDCBA Legal Ethics Committee July 2007 Vol. 4, No. 2
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INTRODUCTION |
CASE NOTES
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4.2.1 |
Unauthorized Practice of Law
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Case: |
Reynoso v. Kistler (9th Cir. 2007) 477 F.3d 1117
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Issue:
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Does an automated bankruptcy preparation provider engage in the unauthorized practice of law when its website claims the provider offers legal expertise in bankruptcy law, including how to take advantage of “loopholes” in the code and where the automated program: (1) determines where in the petition to place data; (2) selects exemptions for the filer; and (3) supplies relevant legal citations?
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Holding:
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Yes. The Court of Appeals acknowledged that “[d]etermining whether particular assistance rendered in the preparation of legal forms constitutes the practice of law is often especially challenging.” (Id. at 1125. Citation omitted.) The Court concluded, however, that the software provided by the defendant in this adversary proceeding brought by a bankruptcy trustee went “far beyond providing clerical services” non-lawyer bankruptcy petition preparers are allowed to provide. (Ibid.) |
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4.2.2 |
Attorney Client-Privilege/Attorney Work Product Doctrine
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Case: |
Memry v. Kentucky Oil Technology, N.V. (N.D. Cal.) 2007 WL 832937
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Issue: |
Is counsel’s evaluation of client’s intellectual property portfolio before being retained in intellectual property litigation by client’s successor protected by the attorney work product doctrine where counsel submits a sworn declaration that the evaluation was requested by the predecessor in anticipation of lawsuits alleging that client’s funds had been misspent to acquire certain technologies?
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Holding: |
Yes. The attorney has an independent right to assert work product protection over the evaluation. Work product protection is waived only when work product is shown to adversary or where there is a substantial risk that “it will fall into the hands of an adversary.” (Id. at *2, citation to Bender Practice Guide omitted.) Moreover, the party seeking the evaluation found to be work product failed to show it would be useful for anything more than to corroborate the deposition testimony it already had obtained in the litigation. (Id. at *3.)
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3.4.3
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Prosecutorial Recusal
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Case: |
Hollywood v. Superior Court (2006) 49 Cal.Rptr.3d 598 (rev. granted)
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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?
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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.)
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Note: |
Before denying on work product grounds the motion to compel production of the portfolio evaluation, the Court rejected the resisting party’s assertion that the document was protected by the attorney-client privilege. The document had been disclosed to potential investors under less than “strict standards of confidentiality.” (Id. at *1.) The case is designated as “Not for Citation” so counsel should check the very latest rules for citation before citing this case before any tribunal.
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4.2.3 |
Rule 3-310: Avoiding Representation of Adverse Interests
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Case: |
Machado v. Superior Court (2007) 148 Cal.App.4th 875 |
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Issue: |
Does a nonparty have standing to move to disqualify counsel in a real estate dispute in which the nonparty is named as an unnamed co-conspirator with a party where that case is related to another action involving the same real estate dispute in which the nonparty was named and had successfully moved to disqualify the same counsel?
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Holding: |
Yes. The Court of Appeal concluded that generally “an aggrieved nonparty who asserts that an attorney has undertaken adverse representation should file a collateral injunctive suit to end the conflicted representation.” (Id. at 881.) Here, however, the nonparty was identified in the complaint as a nonparty co-conspirator in the disputed real estate transaction with the named defendant. The only purpose for not naming the nonparty in the current action was to evade a prior, unopposed order in the earlier related case, in which the nonparty was named, disqualifying counsel because of his prior representation of, and business relationship with, the person seeking disqualification in the current action. “Because [the nonparty] is a named conspirator, and all Doe defendants are alleged to be the agents and alter egos of all others, [the nonparty] remains a nonparty at the whim of the pleader. Given the alter ego and conspiracy allegations, it would uphold the sheerest fiction to conclude [the nonparty] lacks standing, or in [the resisting party’s] astonishing words, to say that he is a ‘stranger’ to” the current action. (Id. at 881.)
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| note: | Note: On the merits, the Court of Appeal held that the attorney was properly disqualified in the instant action because of the collateral estoppel effect of the earlier order. An order disqualifying an attorney is appealable and the failure to appeal the order in the earlier case rendered it final. (Id. at 886.) The prior disqualification motion and this one raised the same issue: whether the attorney could represent the same person against the party seeking disqualification in the same real estate dispute. (Id. at 887.) | |
4.2.4 |
Rule 3-310: Avoiding Representation of Adverse Interests |
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Case: |
Knight v. Ferguson (2007) 149 Cal.App.4th 1207
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Issue: |
Where a lawyer had continuously represented current clients; had represented former client briefly concerning potential litigation over a partnership to establish and lease a restaurant; where the current clients had been present at all attorney-client conferences between former client and the attorney during the brief representation and where the lawyer represented current clients in litigation against former client concerning a second partnership about the same restaurant business, must the lawyer be disqualified?
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Holding: |
Yes. The Court of Appeal held that the two representations concerning different partnerships for the same restaurant were substantially related, even though all discussions with the lawyer were not privileged due to the constant presence of current clients in all conferences. Whether the attorney-client privilege applied to the earlier communications was beside the point. (Id. at 1215.) The duty of loyalty required disqualification and relieves the attorney “from the impossible burden of partitioning loyalty to his client.” (Id. at 1216.) The lawyer developed potential litigation strategy with the former client’s other lawyer which was directly related to the issues in the litigation over the second partnership between the former client and current clients concerning the same business. Also, the lawyer acquired information about the former client’s attitudes about litigation and about the former client’s ability to work with partners, which were directly at issue in the current litigation.
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Note: |
In dicta, the Court of Appeal implies that this is a side switching case in reliance upon City Nat. Bank v. Adams (2002) 96 Cal.App.4th 315, which in turn implicates the duty of loyalty, without the necessity for demonstration that confidential information was received in further support of the disqualification. (Id. at 1216.) City Nat. Bank involved a lawyer’s handling a loan transaction on behalf of a bank with another of the lawyer’s clients and that lawyer’s representation of the lender-client against the bank when a dispute arose. Because this case involves the same business, but different parties and different time periods of representation, it is not clear whether the Court intended to extend “side-switching” conflicts to all transactions involving the same business, regardless of the parties involved.
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4.2.5 |
Rule 3-310: Avoiding Representation
of Adverse Interests
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Case: |
In re Charlisse C. (2007) 149 Cal.App.4th 1554 |
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Issue: |
Must a unit of a non-profit publicly funded law center be disqualified from representing a child in a juvenile dependency proceeding against the mother’s interests where: (1) a separate unit of the center represented the mother several years previously; (2) there was no evidence that the mother’s case was so unusual among the thousands that the center handled that confidential information about her case was remembered and discussed by attorneys still employed at the center; (3) there was no evidence that the attorney handling the child’s case was employed at the center represented the mother; (4) the center had established formal mechanisms to prevent disclosure of confidential information among the units; but (5) where the separate units of the center shared a library and administrative director; and (6) there was evidence of “temporary and sporadic” breaches in the screening mechanisms among the units of the center?
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Holding: |
No. When the child’s lawyer had no “direct and personal” relationship with the mother when she was a client of the center, but the mother presented evidence of breaches in the center’s ethical screens, “the juvenile court should treat the Center as a single law firm for conflict purposes only if [the mother’s] evidence establishes a reasonable possibility that the lawyer has actually obtained, or will inadvertently acquire, material confidential information relating to [the mother’s] representation. The factors the juvenile court should consider include (1) the length of time that has elapsed since the former client was represented by the Center; (2) whether the prior case was particularly notorious or memorable; (3) whether the current attorney was employed by the Center at the time of the prior representation, and whether the attorney responsible for the prior represented is still employed by the Center; and (4) the nature and extent of any breaches in the Center’s operating procedures established to ensure that confidential information acquired by one unit is protected from purposeful or inadvertent disclosure to lawyers in the Center’s other units. . . . [] The appropriate legal standard does not warrant disqualification in this case.” (Id. at 1578-1579.)
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Note: |
There were three separate opinions in this lengthy decision. The lead opinion observed that it was unclear whether the mother even had ever been a client of the center. The lead opinion also emphasized that different conflict principles apply to public interest law firms than to private law firms because: (1) the former have no financial interest in the matter and so may have less, if any, incentive to breach client confidences (Id. at 1570-1571, citing City of Santa Barbara v. Superior Court (2004) 122 Cal.App.4th 17, 24); disqualification of legal services firms results in increased demand on an already strained tax base (Id. at 1571); and (3) public interest firms “often develop specific expertise in particular areas of law, and disqualification may deprive the office’s clients of the benefits of this acquired and cultivated expertise.” (Ibid., citing City and County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 830.) The lead opinion further observed, in dicta, that: “In the context of private law firms, there is no definitive authority in California as to whether a so-called ‘ethical wall’ or ‘ethical screen’ . . . can be used to preclude vicarious disqualification in successive-conflict cases.” (Id. at 1570, citing case and secondary authority.) The concurring opinion rejected any suggestion in the lead opinion that the Court was “free to weaken the protections of the law relating to conflicts merely to save money.” (Id. at 1581, Armstrong, J., concurring.) The concurrence agreed with the lead opinion that the center had sufficiently followed the practices set forth in Castro v. Los Angeles County Bd. of Supervisors (1991) 232 Cal.App.3d 1432 to avoid a finding that the center operated as a single integrated firm for conflict purposes. (Id. at 1580.) The dissenting opinion disagreed with the lead opinion about what measures were required for the center to remain in the case and agreed with the trial court that the measures the center took fell short of what was required. (Id. at 1582-1608, Turner, P.J., dissenting.)
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4.2.6 |
Rule 3-310: Attorney-Client Privilege/ Joint-Client Privilege
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Case: |
Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210 |
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Issue: |
Must counsel for defendant-employer be disqualified where counsel obtained information about the plaintiff-former employee’s case from another former employee of defendant-employer who was once represented by plaintiff’s counsel in an action against employer where: (1) the two employees’ representation by plaintiff’s counsel overlapped, though in different actions, one involving alleged whistleblower retaliation, the other involving discrimination; and (2) where plaintiff’s counsel shared with both clients confidential attorney-client and attorney work product information about each client’s case?
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Holding: |
No. The Court of Appeal affirmed the trial court ruling denying disqualification in those circumstances. The Court ruled that plaintiff had failed to meet her initial burden of proving that the former employee now cooperating with defense counsel, pursuant to settlement of his distinct claims, had any information plaintiff in this action could claim was confidential. (The cooperating former employee had obtained the settlement after dismissing the counsel representing plaintiff and agreed, as part of the settlement, to cooperate with defense counsel in plaintiff’s case.) Plaintiff failed to show that she and the cooperating witness were “joint clients” of her counsel subject to a joint privilege that could not be waived without the consent of both of them. Each former employee “was a likely witness in the other’s case. But even though [cooperating former employee’s] claims included references to [plaintiff’s] claims, the matters for which they retained [plaintiff’s counsel] were not matters of common interest, they were separate legal actions brought under separate theories of liability. One case did not hinge, even in part, on the success of the other.” (Id. at 225.) Nor were communications to both plaintiff and the cooperating former employee protected by the common interest doctrine protecting from disclosure confidential communications reasonably necessary to accomplish the objectives for which the client has consulted the attorney or to those present to further the interests of the client. (Id. at 223, citing Evid. Code §§912(d); 952.) Overlapping interests between the plaintiff and the cooperating witness were not enough to establish the common interest privilege over communications while they were both represented by the same attorney. Plaintiff “was bound to show, at minimum, that sharing her confidential information with [the cooperating witness] was reasonably necessary to advance her case. . . . We cannot divine the necessity for sharing confidential attorney-client and attorney work product with a percipient witness, which, as far as the evidence discloses, was [the cooperating witness’s] only relationship” to plaintiff’s case. (Id. at 225, citation omitted.)
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Note: |
The Court further ruled that defense counsel had not breached any ethical duty. (Id. at 225-226.) The settlement agreement with the cooperating witness required only that he waive his privilege with respect to any communication he had had with plaintiff’s counsel about plaintiff’s case. In addition, the cooperating witness had told defense counsel that he had no agreement with plaintiff’s counsel and that he and plaintiff had had no joint discussions with plaintiff’s counsel.
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4.2.7 |
Vicarious Liability of Law Firm for Partner’s Acts
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Case: |
PCO, Inc. v. Christensen, Miller, Fink, Jacobs, Glaser, Weil Shapiro, LLP (2007) 150 Cal.App.4th 384 |
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Issue: |
May a law firm be liable to a company’s receiver for a non-equity partner’s alleged wrongful receipt of monies from a criminal convicted of engaging in fraud with the corporation, notwithstanding the partner’s claim that he maintained his criminal practice separate from the firm, where: (1) the law firm’s web site promoted the partner as the head of the firm’s white collar criminal defense practice; (2) his name is included in the firm name; (3) the retainer agreement was between defendant and the firm; (4) the partner signed the retainer agreement between the firm and the defendant; (5) the retainer agreement listed another lawyer affiliated with the firm who would provide legal services; (6) the law firm billed the defendant repeatedly for costs; (7) the partner used law firm letterhead in correspondence with the assigned prosecutor; and (8) in court appearances in the case, the partner identified himself as being affiliated with the firm? (Id. at 392-393.)
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Holding: |
Yes. A reasonable finder of fact, based on this evidence, “could find that [the non-equity partner] acted in his capacity as a member of the [firm] and at a client’s request to protect the funds from which the client’s bail and the [firm’s] legal fees would be paid. Helping a client arrange bail and ensuring the payment of his firm’s fees is within the scope of a law partner’s authority.” (Id. at 390.) A reasonable finder of fact also could conclude that the law firm was vicariously responsible for the partner’s acts, since the partner’s alleged participation in removing cash from the client’s home was a foreseeable consequence of the firm’s representation of the client, including posting bail, obtaining its fees and otherwise incidental to the firm’s interests. (Id. at 393-394.) Summary judgment in favor of the firm was reversed.
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Note: |
Summary adjudication of the cause of action for conversion was affirmed because the plaintiffs were unable to identify the specific fund of money which had been converted. (Id. at 395-397.) Summary adjudication of the cause of action for breach of fiduciary duty was affirmed because the law firm owed the company no fiduciary duty. Even if cash taken from the criminal defendant’s home was wrongfully acquired from the company and assuming that it was received by the lawyer or his firm, it would have been received for legal services and not for the benefit of the company as a third party beneficiary. (Id. at 397-398.)
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4.2.8
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Rule 3-310: Avoiding Representation of Adverse Interestsa |
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Case: |
Law v. Harvey (N.D. Cal. 2007) 2007 WL 1280585
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Issue: |
In a trademark infringement action, was the former lawyer for a three-partner dissolved partnership properly disqualified from representing one of the partners in business litigation against one of the other partners regarding partnership business?
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Holding: |
Yes. The Court held that the lawyer must be disqualified since (1) the partnership’s lawyer also represented each of the partners individually; (2) the legal work performed on behalf of the partnership was substantially related to the issues in the litigation; (3) the partnership’s lawyer therefore was in a position to use confidential information for the benefit of one partner to the detriment of the other partners and; (4) the partnership’s lawyer would be likely to be called as a witness in the litigation. “This action likely hinges on the parties’ rights under the partnership agreement and the use of the partnership’s intellectual property. Based only on his own statements, [the lawyer] would have a great deal on both of those subjects.” (Id. at *5.)
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Note: |
In determining whether the partnership’s lawyer also represented each of the partners individually, the Court of Appeal applied the five-part test in Johnson v. Superior Court (1995) 38 Cal.App.4th 463, 476-77: (1) the size of the partnership; (2) the nature and scope of the attorney's engagement; (3) the kind and extent of contacts between the attorney and the individual partner; (4) the attorney's access to financial information relating to the individual partner's interests; and (5) whether there was an implied agreement not to accept other representations. (Id. at *3.) The Court rejected the lawyer’s argument that he had no “confidential information” since he was required to share all information with all of the partners in representing all of them and that no joint client could claim the privilege concerning a dispute between any of them pursuant to Evidence Code §962. In rejecting the argument, the Court noted that the duty of confidentiality is broader than the privilege; that since the lawyer represented the partners in their individual capacities, confidentiality applied and that the application of the substantial relationship test creates a presumption of acquired confidentiality. (Id. at *5.)
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4.2.9
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Rule 3-310: Avoiding Representation of Adverse Interestsa |
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Case: |
Fergus v. Songer (2007) 150 Cal.App.4th 552
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Issue: |
Was a contingency fee agreement voidable because it did not state that the fee was not set by law but was negotiable, even if the client knew that the fee was negotiable and even though client waited nine years to assert voidability of the agreement?
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Holding: |
Yes. The contingency fee agreement was voidable pursuant to Business and Professions Code section 6147(b) because it did not set forth a statement that the fee was negotiable and not set by law as required by section 6147(a)(4). (Id. at 558-559.) A later fee agreement, which purported to create a 50%-50% partnership between lawyer and client, was void because it was not signed the client in violation of section 6147. (Id. at 570.)
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Note: |
Although the lawyer’s professional obligations precluded him from enforcing an oral partnership agreement, his spouse could enforce the agreement, since she was not subject to such professional obligations; there was no evidence that she knew of her husband’s violations; the agreement was not unfair; and where she advanced community property funds from a home equity loan in consideration of the partnership. The spouse was entitled to recover no more than $1.2 million (or one-quarter of partnership proceeds of $4.8 million), since her husband’s share constituted compensation for the reasonable value of his attorney’s fees, awarded by the jury. (Id., at 573-576.)
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4.2.10 |
Anti-SLAPP Motions (Code Civ. Proc. §425.16) |
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Case: |
Miller v. Filter (2007) 150 Cal.App.4th 652
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Issue: |
After California District Attorneys Association employees were deputized as Sierra County deputy district attorneys to prosecute criminal charges which were dismissed for lack of proof that safety violations caused a mine fatality; after plaintiffs brought malicious prosecution and related causes of action against the CDAA and its employees; and after the defendants brought an anti-SLAPP motion on the grounds that there was no probability of success because they were immune from liability for their actions as prosecutors, did the trial court err in denying the anti-SLAPP motion?
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Holding: |
Yes. The Court of Appeal held that the defendants were absolutely immune from liability in the lawsuit against them and therefore were entitled to protection of the anti-SLAPP statute. (Id. at 657, 672.) Although the district attorney's appointment of the CDAA employees to serve as deputy district attorneys was technically deficient, the defendants were “de facto deputy district attorneys engaged in protected activity when they prosecuted the criminal action.” (Id. at 663-665.) The complaint arose from statements or writings defendants made in official proceedings and are within the scope of section 425.16. (Id. at 665-666.) Because of their role as de facto prosecutors, the defendants were immune from civil liability for prosecutorial actions and the plaintiffs could not prevail in their lawsuit against them. Because of the employees’ immunity, CDAA could not be held vicariously liable for their conduct. (Id. at 669-670.) The trial court should have “stricken the complaint, dismissed the lawsuit against defendants, and considered their entitlement to attorney fees pursuant to Code Civ. Proc., § 425.16(b)(1), (c).” (Id. at 657, 672.)
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Note: |
One of the plaintiffs claimed not to have been a party to either the anti-SLAPP motion or the appeal, which the Court of Appeal found unsupported by the record. This plaintiff had requested an extension of time for appellate briefing but thereafter never filed any papers notwithstanding an order to do so. The Court deemed the plaintiff a proper party on appeal and ordered both plaintiffs to reimburse defendants for costs on appeal. (Id. at 671-672.)
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4.2.11 |
Rule 3-310: Avoiding Representation of Adverse Interests |
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Case: |
Lucent Technologies, Inc. v. Gateway, Inc. (S.D. Cal. 2007) 2007 WL 1461406
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Issue: |
Must an entire law firm be disqualified from representing a defendant in a case in which a newly hired associate had previously done extensive work at another firm, even where the associate worked in a different office at his new firm from the attorneys assigned to the matter and the firm put in place ethical screening measures when opposing counsel brought the matter to the firm’s attention, but after the firm’s first appearance in the case?
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Holding: |
Yes. The Court declined to apply a rebuttable presumption of vicarious disqualification, applying instead an automatic disqualification of the entire firm in this side-switching case even while noting that the Ninth Circuit has observed that “the winds may be shifting in California” towards openness to ethical screens. (Id. at *3, discussing In re County of Los Angeles (9th Cir. 2000) 223 F.3d 990, 995.) The District Court here identified facts weighing strongly for applying vicarious disqualification and strongly cautioning against applying a rebuttable presumption: (1) the new associate worked 2300 hours on the case at his former firm over a period of more than two years; (2) the instant case was high profile, with attorneys in the associate’s office asking about his prior involvement in the case before any ethical screening procedure was in place – indeed, the screening procedure was not put in place when the firm’s attorneys entered their first appearance in the case; (3) “while the attorneys working on the instant litigation are in a different city and state from [the new associate], the prevalence of electronic and phone communication make this factor at best neutral.” (Id. at *4.)
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4.2.12 |
Ex Parte Contact with Judicial or Hearing Officer |
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Case: |
Rondon v. Alcoholic Beverage Control Appeals Board (2007) __ Cal.App.4th __, 2007 WL 1417453
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Issue: |
In an administrative proceeding to revoke a liquor license, did the Department of Alcoholic Beverage Control’s claimed practice of allowing the ultimate decision-maker ex parte access to the report of hearing prepared by the prosecuting attorney result in an improper ex parte communication in violation of the petitioner Rondon’s due process rights?
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Holding: |
Yes. Although the Department submitted declarations contending that it did not appear that the report of hearing was produced to the decision-maker, the Court of Appeal found that since the Department had conceded in a prior case that producing the reports to the decision-maker was a widespread agency practice and since the Department’s declaration was insufficient to demonstrate that the report of hearing was not made available, the Department failed to carry its burden of demonstrating that there was an effective ethical wall in place. “On the critical issue of whether ex parte communication took place in this case, [the supervisor of the legal and hearing unit’s] declaration contains only second hand information and belief that no such contact occurred. Presumably, the Department was capable of providing direct proof on that pivotal question, through the prosecuting attorney . . . and/or unnamed advisors/decision-makers in this case.” (Id. at *6.) The Court of Appeal therefore assumed that the Department’s decision-maker had access to the prosecuting attorney’s report of hearing, access which violated Government Code section 11430.10, subd. (a), which bars ex parte communications to a presiding officer regarding a pending proceeding, as well as the rule against reviewing extra-record information. The Court of Appeal concluded that this ex parte communication violated the defendant’s statutory due process rights and reversed the Department’s order revoking the petitioner’s liquor license.
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4.2.13 |
Attorney-Client Privilege |
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Case: |
City of Rialto v. United States Department of Defense (C.D. Cal. 2007) __ F.Supp.2d __, 2007 WL 1805329
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Issue: |
Can a dissolved corporation assert the attorney-client privilege concerning historic documents sought by a co-defendant to be produced?
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Holding: |
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4.2.14 |
Rule 3-310: Avoiding Representation of Adverse Interests |
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Case: |
In re 3DFX Interactive, Inc. (Bkrtcy. N.D. Cal. 2007) 2007 WL 1591881
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Issue: |
Must special counsel for the creditors’ committee be disqualified where counsel simultaneously represented the creditors’ committee in a mediation seeking a global settlement of the action and separately defended the chair of the creditors’ committee in a fraudulent conveyance action brought by the Chapter 11 trustee?
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Holding: |
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4.2.15 |
Judicial Impartiality |
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Case: |
Haluck v. Ricoh Electronics, Inc. (2007) __ Cal.App.4th __, 2007 WL 1589424
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Issue: |
Was a trial judge’s conduct toward plaintiff’s counsel during a 30-day jury trial sufficiently egregious and pervasive to warrant reversal of a defense verdict and a new trial before a different judge where the judge: (1) allowed defense counsel to make snide remarks at will at the expense of plaintiff’s counsel; (2) initiated a “red card” procedure where a red card and a $50 fine was given when plaintiffs’ lawyer raised an objection, giving the impression that the judge was allied with the defendants; (3) allowed and encouraged defense counsel in mocking the plaintiffs with sarcastic comments and by singing a song; (4) utilized overruled signs which made a mockery of plaintiffs’ objections; and (5) allowed improper ex parte contact when he permitted defense counsel to be present when he reviewed a videotape defense counsel wanted to use as evidence without plaintiffs’ counsel present?
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Holding: |
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