The Court of Appeal upheld sanctions imposed on counsel by the trial court for violations of local trial court rules. Division 2 found sanctioned counsel’s argument lacking in a many areas, and bordering on frivolous, stating that they were publishing the opinion “to make clear that, in the future, an appellate argument such as this that is so lacking in even potentially persuasive value will indeed carry the possibility of sanctions as a frivolous appeal.” Among the leading infirmities was counsel’s failure on appeal to discuss the leading authority contrary to her position that the trial court lacked the authority to awared sanctions, the Bragg case. The Court reminded us that Rule 3.3(a)(2) provides that a lawyer shall not “fail to disclose to the tribunal* legal authority in the controlling jurisdiction known* to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or knowingly misquote to a tribunal the language of a book, statute, decision or other authority.” It also reminded us that it reminded us about Rule 3.3 once before in Davis v. TWC Dealer Group, Inc. (2019) 41 Cal.App.5th 662, 678.
The Court of Appeal neither sanctioned counsel or referred her to the State Bar. But it told us in certain terms that it could do those things and just might if it was faced with similar failures to comply with Rule 3.3(a)(2) in the future. The circumstances of this case, the relatively light sanction and the fact that bad faith was not found on counsel’s part militated against those measures in this case. The first part of Rule 3.3(a)(2) is a new Rule in California, adapted from the ABA Model Rules and adopted in 2018. There are no discipline cases applying it that can be found but the possibility of discipline in an appropriate case cannot be rules out.
At least one Court of Appeal has fired two warning shots concerning Rule 3.3. When and if they will direct their fire directly on the target remains to be seen.
Lopez v. Lopez, Second App. Dist., Div. 4, case no. B315959, filed 7/20/22.
The Second Appellate District has reversed a trial court ruling disqualifying a lawyer from representing his wife in litigation where the lawyer was likely to be called as a witness. This case provides one of those ‘teaching moments’ on a topic that is the subject of some confusion among lawyers, and, apparently, some judges: the differences between the California Rules of Professional Conduct and the American Bar Association (ABA) Model Rules of Professional Conduct.
Some of the confusion may be the result of the way professional responsibility has been taught by law schools. I will offer myself up as an example. I went to an ABA-accredited law school in Los Angeles, longer ago than I care to remember. So long ago that we actually studied the 1969 ABA Code of Professional Responsibility, with its confusing hodgepodge of Canons, “ECs” (ethical considerations) and “DRs” (disciplinary rules.) We also learned a little of the then recently adopted ABA Model Rules. But our instruction never acknowledged, let only elucidated, the then-existing 1975 California Rules of Professional Conduct, the actual discipline rules that would be binding on the majority of us who would go on to practice in California. The California rules were not tested on the version of the Multi-state Professional Responsibility Examination (MPRE) that I took and passed in 1986. I did not even realize that California had its one distinctly different set of disciplinary rules until March 27, 1989, the day I began work at the State Bar of California.
Legal ethics education has improved since those days. My impression is that even law schools that aspire to be “national” make some effort to acquaint students with the California rules. I know from my own teaching experience is that it is difficult to teach two very different sets of professional responsibility rules. The adoption of California’s own version of the Model Rules in 2018 has made it easier, although California’s rules have many differences with the Model Rules, including our version of the lawyer witness rule, Rule 3.7, which tripped up the trial judge in the Lopez case. Unlike the Model Rule 3.7, our Rule allows the lawyer to serve as a witness with the informed consent of the client, as did former California Rule 5-220 (the 1975 California rules did not address this issue.) But that exception is not absolute; Comment 3 states that a judge may still disqualify a lawyer who will be a witness if necessary to protect the trier of fact from being misled or the opposing party from being prejudiced.
This is a useful reminder that disqualification is a judicial remedy that is broader than the rules of professional conduct and may be invoked in the exercise of a trial judge’s discretion to prevent unfairness. And, in the trial judge’s defense, it is clear that they are situations where the ABA Model Rules can be utilized as guidance on California questions, even after the adoption of our new rules in 2018. Pre-2018 case law held that “the ABA Model Rules of Professional Conduct may be considered as a collateral source, particularly in areas where there is no direct authority in California and there is no conflict with the public policy of California.” State Comp. Ins. Fund v. WPS, Inc. (1999) 70 Cal. App. 4th 644, 656. California Rule 1.0 states that the Rules of Professional Conduct “are intended to regulate professional conduct of lawyers through discipline”; Comment 4 to that Rule states that “ethics opinions and rules and standards promulgated by other jurisdictions and bar associations may also be considered” in addressing ethical issues not related to discipline.
So maybe that trial judge wasn’t so dumb after all. Confusion about the proper role of the California Rules of Professional Conduct still exists as well as geographical reach. Are they just discipline rules, black-letter law like criminal statutes or do they serve a prophylactic role in guiding lawyer conduct. Of course, the answer is both, despite the long-standing California shibboleth about them being only discipline rules. This confusion was what the wacky 1969 ABA Code of Professional Responsibility was trying to address through its three-part structure of Canons, ECs and DRs. Maybe the 1969 Code wasn’t so dumb either.
In the Matter of Isola, Review Dept., State Bar Court case no. SBC-20-O-30310, filed 5/22/22, disciplinary recommendation pending before the California Supreme Court.
The Office of Chief Trial Counsel (OCTC) filed a notice of discipline charges pleading 26 counts of misconduct, including acts of moral turpitude, misrepresentation, and misappropriation of funds. It sought disbarment. After 11 days of trial, the hearing judge issued a decision dismissing some of the charges and recommending a two-year actual suspension. Both sides sought review. The Review Dept., a lengthy 46-page decision, finds only two counts of failing to communicate with the client and recommends a 30-day actual suspension.
Can we say that the system worked the way it was supposed to?
Part of the answer depends on the peculiar doctrine of moral turpitude as applied in disciplinary proceedings. The concept was abandoned by the American Bar Association when it wrote the Model Rules of Professional Conduct in the early 1980s but it lives on in California disciplinary jurisprudence through our Business and Professions Code section 6106:
The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.
If the act constitutes a felony or misdemeanor, conviction thereof in a criminal proceeding is not a condition precedent to disbarment or suspension from practice therefor.
Bus. & Prof. Code section 6106
Moral turpitude also figures prominently in the statutes governing the criminal conviction referral process. Business and Professions Code section 6101 provides that conviction of a felony or misdemeanor crime involving moral turpitude is a cause for suspension of disbarment. It also requires a criminal court to transmit the record of a criminal conviction of a California lawyer to the State Bar within 48 hours. The State Bar must in turn file the record of any conviction which involves or may involve moral turpitude in the State Bar Court (standing in for the California Supreme Court) within 30 days of receipt. Conviction of any felony, or misdemeanor involving moral turpitude, triggers interim suspension (Bus. & Prof. Code section 6102(a)) and conviction of felony involving moral turpitude is punishable with summary disbarment under section 6102(c).
What is moral turpitude? The California Supreme Court has struggled to define it.
“Moral turpitude is a concept that “defies exact description” [citation] cannot be defined with precision [citation] We have noted, however, that in attorney discipline cases, moral turpitude should be defined with the aim of protecting the public, promoting confidence in the legal system, and maintaining high professional standards. [citation].” In re Grant (2014), 58 Cal. 4th 469, 475–476. Moral turpitude is similar but broader than ABA Model Rule 8.4(b) which states that “It is professional misconduct for a lawyer to:… (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.” Promoting confidence in the legal profession means that moral turpitude can reach many kinds of activity not directly related to the practice of law
Grant had been convicted of possession of child pornography (Penal Code section 311.11(a).) The State Bar Court hearing judge determined that the conviction involved moral turpitude and recommended disbarment. “The judge reasoned that the conviction “involve[d] such a serious breach of a duty owed to another or to society, or such a flagrant disrespect for the law or for societal norms, that knowledge of [Grant’s] conduct would be likely to undermine public confidence in and respect for the legal profession,” and is, therefore, a conviction of a crime involving moral turpitude (Grant, at 474.) The Review Department, which had initially determined the crime as one that may or may not involve moral turpitude, thus entitling Grant to an evidentiary hearing, reversed, finding that the admissible evidence did not support a finding of moral turpitude. It recommended three years’ probation with an actual suspension of two years. On petition for review by the Office of Chief Trial Counsel (OCTC, the State Bar’s discipline prosecution office) the Supreme Court held that violation of section 311.11(a) was a crime of moral turpitude per se and thus mandated summary disbarment.
The vague definition of moral turpitude is problematic because it contains an element of subjectivity sometimes approaching Potter Stewart’s famous statement on obscenity (“I can’t define it but I know it when I see it.”) As a result, OCTC’s practice of liberally charging moral turpitude has been the subject of much contention with the professional discipline defense bar. At a recent meeting of a working group of State Bar’s Ad Hoc Commission on the Discipline System, a body charged with studying the fairness of the discipline system, defense counsel representatives proposed adding a probable cause hearing to State Bar discipline procedure, with the goal of culling out unsupported moral turpitude charges at an early stage of the proceeding and promoting settlement. Respondents are reluctant to stipulate to charges of moral turpitude because of the implication of immorality, even though the Supreme Court has stated that gross negligence alone can support a finding of moral turpitude (see In the Matter of Yee (Review Dept. 2014) 5 State Bar Ct. Rptr. ____ , Remke, J. dissenting.) Yee was found culpable of an act of moral turpitude because she mistakenly certified her MCLE compliance from memory without checking her records. The Review Department upheld the decision, provoking a rare dissent from the Presiding Judge of the State Bar Court.
Case law has defined moral turpitude in dramatic terms. “Moral turpitude” is defined as the “general readiness to do evil.” People v. Castro (1985) 38 Cal.3d 301, 313–316. Moral turpitude is defined as ‘everything done contrary to justice, honesty, modesty, or good morals’. In re McAllister, (1939)14 Cal. 2d 602, 603. Moral turpitude has been defined as: ‘An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.’ In re Boyd (1957) 48 Cal. 2d 69, 70. That the concept is so elastic that is encompasses Ms. Yee forgetting to check her MCLE records as well the most heinous crimes such as murder and child pornography is a measure of how flawed it is.
16 of the 26 discipline charges in Isola alleged acts of moral turpitude in violation of section 6106. None of those charges were upheld, although it is still possible that OCTC will petition the California Supreme Court. Mr. Isola went through 11 days of trial and doubtless had to pay his experienced State Bar defense counsel a lot of money. Because he was found culpable on two charges with a recommendation of public discipline, he will also have to pay $22,136 in costs to the State Bar, according to the latest cost schedule.
Discipline is an adversarial process. Inherent in that is the possibility that parties, and judges, will get things wrong. That is part of why we have review as a matter of right in the State Bar Court and discretionary review in the California Supreme Court. Putting the best face on things, OCTC might say that the system worked exactly as it was supposed to, that its prosecutor was entitled to make her case within the office’s prosecutorial discretion and she should not be second guessed. Given the consequences to Mr. Isola it is hard to credit that view. Vague concepts like moral turpitude invite prosecutorial abuse and this case is not the only example.
Bowen v. Lin, Second App. Dist., Div. 6, case no. B312831, filed 6/6/22, certified for publication 6/23/22.
Fiduciary duty is not a level playing field. The essence of a fiduciary relationship is putting the interests of the other party ahead of your own. One of the incidents of the fiduciary relationship between lawyer and client is the client’s absolute right to discharge the lawyer, for a good reason, for a bad reason, or for no reason at all. This is sometimes difficult for lawyer’s to grasp, as the Bowen case shows.
“Victor and Calvin [Victor’s son] practiced medicine out of an Oxnard office owned by Victor and Yvonne [Victor’s wife.] The office sustained $25,000 in damages when a pipe in an adjacent office started leaking. The Lins hired Bowen as their attorney to demand that the owner of the adjacent office, Cynthia Lau, pay to rectify the water damage. After Lau rejected the settlement demands, Bowen recommended that the Lins sue. Victor and Yvonne agreed, but Calvin did not. Bowen nevertheless named him as a plaintiff in the lawsuit (the Lau case). He estimated that prosecuting the case would cost between $25,000 and $50,000. Over the next three years, the Lins paid Bowen nearly $68,000. Frustrated with ever-mounting costs, Victor told Bowen to cease all nonessential work on the Lau case while Gail [Victor’s daughter], a licensed attorney, tried to reach a settlement with Lau’s estate. Bowen replied that he would not cease work and would not grant Gail permission to settle the case as long as he was counsel of record. Gail then formally substituted in and settled the case.”
“Bowen sued Victor and Yvonne for breach of contract and quantum meruit, seeking to recover the unpaid balance of his fees. Victor and Yvonne cross-complained, alleging that Bowen breached his fiduciary duties, committed malpractice, and failed to execute a written fee agreement. Calvin joined the lawsuit as a cross-complainant.”
“Bowen then filed his own cross-complaint. His first cause of action asserted that Calvin breached his oral contract with Bowen when he stopped cooperating in the Lau case and fired Bowen as his attorney. The second, third, and fourth causes—for intentional interference with contractual relations, intentional interference with prospective economic relations, and negligent interference with prospective economic relations—asserted that Calvin and Gail encouraged their parents to stop cooperating with Bowen, fire him as their attorney, withhold payments due, and work with Gail to achieve a settlement. Bowen’s fifth cause asserted that Victor, Yvonne, and Calvin committed fraud when they induced him to provide legal services in the Lau case—all while providing minimal payments— knowing they would have Gail settle the case on the eve of trial. The sixth cause asserted that all four members of the Lin family conspired to defraud Bowen by encouraging him to work on the Lau case while knowing they would settle it themselves after substituting him out.”
The Lins filed a SLAPP motion against Bowen’s cross-complaint. The trial court granted with respect to Gail, concluding that she engaged in protected activity and the litigation privilege (Civil Code section 47) meant that Bowen could not prevail on his cross-complaint against her. The trial court denied the motion with respect to Victor, Calvin and Yvonne, finding their communications “probably” did not come within the protection of the litigation privilege. It did not rule on whether Bowen was likely to prevail on his claims. Appeal, like flowers after a spring rain, naturally blossomed.
On appeal, Division 6 found that Victor, Calvin and Yvonne actions were “squarely protected” by the anti-SLAPP statute (Civil Code section 425.16(e)(1):“statement[s] or writing[s] made before a . . . judicial proceeding” and “written or oral statement[s] or writing[s] made in connection with an issue under consideration or review by a . . . judicial body.”) “The “filing, funding, and prosecution of a civil action” are protected acts. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.). Moreover, as noted above, a “client has the absolute right to change [their] attorney at any stage”, citing the venerable case of Gage v. Atwater (1902) 136 Cal. 170, 172, as well as the more recent case Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 491. “The trial court thus erred when it concluded that Bowen’s breach of contract cause of action did not arise from protected activity.
The Court of Appeal reached the same conclusion with respect to the interference causes of action, citing the very recent case of Pech v. Doniger (2022) 75 Cal.App.5th 443, 462, for the proposition that advising clients to terminate an attorney’s services is protected activity. The fraud claims were also found subject to the SLAPP motion because they were based on the same protected communications activity specifically cited by the SLAPP statute.
Bowen tried to counterattack by noting that the Lins had cross-complained against him for malpractice but to no avail. The appellate court found that a malpractice claims does not chill petitioning activity but rather, the threat of a malpractice claim “encourages the attorney to petition competently and zealously.”
Bowen’s appeal of the trial court’s granting of Gail’s part of the SLAPP motion failed for the same reasons. He attempted to distinguish Taheri by noting that the decision predated current Rule of Professional Conduct 4.2, but that rule is essentially the same as its predecessor, former Rule 2-100(a), which Taheri relied on. The rule was irrelevant in any case; Gail did not represent any party when she communicated with the Lins while they were represented by Bown, and the Rule only applies when the lawyer making the communication represents a party.
The Court of Appeal upheld the granting of the SLAPP motion as to Gail and remanded the matter back to the trial court to decide the issue of whether Bowen might prevail in his causes of action against Victor, Yvonne and Calvin.
While careful not to express an opinion, in discussing the trial court’s determination of that issue on Gail’s part of the SLAPP motion, the high court said this: “the litigation privilege bars liability for “any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that ha[s] some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) It is “relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense [the nonmoving party] must overcome to demonstrate a probability of prevailing.” [Flatley v. Mauro (2006) 39 Cal.4th 299, 323.] Whether the privilege shields Gail’s actions is a question of law subject to our independent review. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.) “Any doubt about whether the privilege applies is resolved in favor of applying it.”
So, Mr. Bowen would appear to have his work cut out for him. The important lesson for the rest of us is that clients and their causes of actions are not property and when push comes to shove, the interests of the clients always come first.
