Category: History

Rule 3.7: One of These Things Is Not Like the Others

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.

Real Lawyers Do Take Notes

The reported exchange between President Trump and the former White House counsel Mr. McGahn regarding his note-taking shines a light on one of the bigger fault lines in legal ethics: the tension between the lawyer’s role as an advocate for a client and the lawyer’s responsibilities to others.  Not a perfect example because McGahan was not Trump’s personal lawyer but for the Office of President, but close enough to illustrate some of the aspects of that fault line.

The fact that the distinction between his personal lawyer and White House counsel (and the Attorney General as well) seems to been lost the President is one aspect of that tension.  Lawyers for organizations are consistently called upon to remind corporate constituents that they don’t represent them, and themselves need to be reminded by Rule 1.13.  Clear understanding of who the client is the first task of any lawyer, a task sometimes difficult in government service where the client is an abstraction speaking through an individual. Lawyers generally have no duty to communicate with non-clients but they have a duty to communicate the true facts of the relationship to non-clients who might reasonably believe they are clients (see Butler v. State Bar (1986) 42 Cal.3d 323.)

Identifying the client is critical to the duty of the lawyer to communicate relevant limitations on the lawyer’s conduct as required by Rule 1.4(a)(4).  Among those limitations is the lawyer’s inability to lie for the client (Rule 8.4(c), Rule 3.3(a), Bus & Prof. Code §6068(d), §6106.) Another is lawyer’s inability to prosecute an action without probable cause to injure someone (Rule 3.1.) Another is the lawyer’s inability to advise the client to violate the law (in most instances) (Rule 1.2.1.)

Rule 1.2.1 occupies a position directly over that fault line.  Oliver Wendell Holmes famously characterized the lawyer’s duty as to zealously represent the client within the bounds of the law.   The conjures up the image of a race car speeding across the Bonneville salt flats and suddenly stopping on a dime.  Crossing the line can occur in many ways and unconsciously. Zeal can become zealotry, especially in emotionally charged representations. Clients want lawyers who care about their problems but lawyers must be sources of independent dispassionate advice.  Loyalty, money or the lawyer’s own emotional needs can interfere with this balancing act.

While a lawyer cannot counsel a client to violate a law, a lawyer can inform the client about what the law is, whether the client’s course of action might violate the law and what the consequences of that violation. In course of that give and take, the client may inevitably garner the information necessary to figure out how to violate the law with impunity.  Rule 1.4(a)(4) requires the lawyer to inform the client that the lawyer cannot advise the violation of the law, no matter what currents of meaning flow during the consultation.

An entertaining example of those currents of meaning is provided by what might be the best lawyer movie of all time, Anatomy of Murder, in the scene were lawyer Paul Biegler (Jimmy Stewart) first meets his client Lt. Manion (Ben Gazzara).  Manion has killed an innkeeper who allegedly raped Mrs. Manion (Lee Remick).  In the first meeting, Biegler tells Manion that he is “just explaining what the law is” but in the course of discussion, skillfully suggests to Manion exactly what facts he needs to hear to establish Manion’s defense to murder (see Freedman, Lawyer Ethics in an Adversary System (1975) at pages 59-75.)

 

President Trump, according to Mr. McGahn, expressed a fondness for lawyers who don’t take notes, presumably to reference to the late disbarred Roy Cohn.  Keeping important books and records is central to the concept of lawyering, to the point where the California Supreme Court has said that failure to do so“ is in itself a suspicious circumstance (Clark v. State Bar (1952) 39 Cal. 2d 161, 174.) When a client complains to the State Bar, the attorney-client privilege (and presumably, the duty of confidentiality) are waived and the State Bar’s inquiry letter will ask for all communications and all notes detailing conversations with the client. If there is any prospect that the attorney-client relationship will go south, a lawyer would be wise to document interactions with the client.  Of course, it isn’t always possible to document every conversation with a client and the 21st century has given us texting, perhaps the worst possible way to communicate between lawyer and client.  More than one lawyer has told me that all or most of their interactions with clients occurred through text messages and they have no way to recover them to disprove the client’s allegations.

What President Trump’s comments say about the nature of his interactions with Roy Cohn is best left to our fertile imagination, although given the well-documented information on the character of both, not too much imagination may be necessary. Rule 1.2.1 might be violated in subtle ways, but subtlety is not associated with either.  Mr. McGahn is a real lawyer; unfortunately, Roy Cohn was, too, at least until he was disbarred, and it probably takes no imagination to say that Rule 1.2.1 and its Model Rule equivalent are violated all the time.

Lawyers, take heed.  Take notes.  But also take notice the counseling a client can present an ethical challenge that you might not even be aware of.