The California State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) spent most of its meeting on Friday January 13 drafting a California version of ABA Model Rule 8.3. Model Rule 8.3, entitled “Reporting Professional Misconduct” has been referred to as the “rat” or “squeal” Rule. It says:

(a) A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. …

(c) This Rule does not require disclosure of information otherwise protected by Rule 1.6 or information gained by a lawyer or judge while participating in an approved lawyers assistance program.

California, alone among United States jurisdictions, has no version of Rule 8.3. When California’s Rules of Professional Conduct were revised between 2014-2018, consideration was given to adopting a version of Rule 8.3, but a subcommittee of the rules revision commission voted not to recommend its adoption (see Carr – Model Rule 8.3: The Argument Against.) The subcommittee explained its reasoning this way:

On balance, the members of the drafting team agree with the Board’s prior decision not to recommend a reporting requirement. The pros of adopting a reporting requirement (whether in the mandatory form of ABA MR 8.3 or a hybrid permissive/mandatory form along the lines of RRC1’s proposed rule) include:

1. improving public protection by requiring lawyer reporting of certain known violations of the rules that raise a substantial question about a lawyer’s “honesty, trustworthiness or fitness as a lawyer;” and

2. bringing California’s rules more in line with the ABA Model Rules.

There are also significant cons to a reporting requirement; either the Model Rule or RRC1 hybrid approach would:

1. require a lawyer to determine whether a known violation raises a substantial question as to (or implicates) the lawyer’s honesty, trustworthiness or fitness as a lawyer;

2. despite the recognition that reporting could be trumped by the duty of confidentiality with respect to information learned in the course of representation of a client, pose a potential for conflict with that rule, or with the attorney-client relationship, to the extent lawyers might feel obligated to discuss waiver of confidentiality to further the reporting interests of the lawyer rather than the client’s own interests;

3. pose a potential for conflicts with a lawyer’s duty of loyalty if reporting posed a risk of adversely affecting a current or former client’s interests; and

4. potentially be viewed as inconsistent with the discretionary reporting policy reflected in Canon 3D(2) of the California Code of Judicial Ethics that states: “Whenever a judge has personal knowledge, or concludes in a judicial decision, that a lawyer has committed misconduct or has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action, which may include reporting the violation to the appropriate authority.” (Emphasis added.)

On balance, the drafting team agrees that the cons outweigh the pros, particularly given that California has never had such a reporting requirement, and that the analysis required for lawyers to determine the scope of any reporting requirement seems inconsistent with this Commission’s charge to retain the historical nature of the California Rules as a “clear and enforceable articulation of disciplinary standards.”

Oh, the carefree days of our (relative) youth!

The Girardi Scandal broke in December 2020 and since then the days of the State Bar of California have not been carefree (see Kafkaesq: The Widening Gyre of Girardi-Gate), especially after the State Bar admitted that it had made mistakes in handling the many complaints against Girardi. Notable is the way the Los Angeles Times has not only covered the story but is driving story, including filing an action in the California Supreme Court to push the State Bar into disclosing the Girardi files. On October 28, 2022, the Los Angeles Times published a story on California’s lack of a rule requiring attorneys to report misconduct (“When It Comes to Crooked Colleagues, California Attorneys Can Remain Silent“). Within weeks, the push was on the enact a California version of Rule 8.3. That push gained enormous momentum when California Senator Tom Umberg, chair of the Judiciary Committee, introduced Senate Bill 42, which would add new section 6090.8 to the California Business and Professions Code:

6090.8. (a) A licensee of the State Bar who knows that another licensee has engaged in professional misconduct that raises a substantial question as to that licensee’s honesty, trustworthiness, or fitness as an attorney in other respects, shall inform the State Bar. (b) This section does not require disclosure of information otherwise protected by the attorney-client privilege or information gained by a licensee while participating in the Attorney Diversion and Assistance Program.

SB 42 seems a transparent move to force the Supreme Court (with the help of its administrative arm, the State Bar of California) to enact Rule 8.3. Pronto! And it is working. The proposed version of Rule 8.3 that COPRAC drafted in real time on Friday January 13 will be put out for a truncated 30 days public comment period and then moved directly on the Board of Trustees agenda for approval, rather than allowing COPRAC to follow its regular procedure of evaluating the public comment and refining its work product. The short public comment period will make it difficult for local bar associations, who work slowly, typically requiring their legal ethics committees to evaluate proposals first, to offer public comment. And everyone is signaling that something had to put in place quickly before the Legislature imposes its own, poorly thought-out statute on the State Bar and the lawyers of California. It seems hard to imagine that the California Supreme Court will say no.

One of the flaws in Model Rule 8.3 as noted by the drafting committee in 2016 is that successful prosecution requires the discipline authority to prove by clear and convincing evidence that the attorney knew a complex thing: that another lawyer has (1) violated the Rules of Professional Conduct and (2) that the violation raises a substantial question as to the lawyer’s honesty, trustworthiness or fitness as a lawyer. As a result there have not been a lot of prosecutions for failure to report. Rule 8.3 is not likely to have a substantial impact on public protection. It would have had no impact on the Girardi matter; the (as framed by the media coverage, without first hand knowledge) problem was not that the State Bar of California did not know, but that it knew but did nothing

But it really isn’t about public protection. It is about public confidence in the State Bar of California. By enacting Rule 8.3, the State Bar demonstrates that it is doing something, even if that something is not particularly helpful.

Shappell Socal Rental Properties v. Chico’s FAS, Fourth App. Dist., Div. 3, case no. G060411, filed 10/17/22.

Ethics lawyers, like every group of professionals, have a jargon all their own. One thing you might hear them talk about is “ethics with a big E” as opposed to “ethics with a small e.” Ethics with a big E refers to the black letter rules and statutes setting forth norms of lawyer behavior. This includes the Rules of Professional Conduct, sometimes codified as statutes, and other statutes, in California the statutes in the State Bar Act (Bus. & Prof. Code section 6000 et seq.) Ethics with a small “e” is taken to mean an undefined territory more vast, all the norms of the legal profession that have not been reduced to “black letter” rules. One principal difference is consequence; violation of a Big E rule raises a presumption of unfitness to practice and justifies discipline, but the sanction for violating a small e rule is usually significantly less, maybe even just the opprobrium of fellow lawyers or a court. A useful concept to keep in mind is the difference between normative ethics (absolutely Big E rules) and descriptive ethics, i.e. what lawyers actually do, which can be Big E but is mostly small e.

The distinction is important in understanding the incivility crisis. For some years now, the profession and the courts have been moaning about the decline of civility in the profession. This has produced a torrent of task-forces, reports, civility codes and much hand-wringing about what to do about it. Part of the problem is a lack of Big E rules, at least in California. California did have a civility rule, former Bus. & Prof. Code section 6068(f), which stated that it was the duty of lawyer to avoid “offensive personality.” Three decades ago, I prosecuted a lawyer for offensive personality. He had a habit of losing his temper in depositions and doing things like throwing chairs around the room. Definitely not civil. California lost the “offensive personality” rule when the Ninth Circuit found it unconstitutionally vague in US v. Wunsch 84 F.3d 1110 (1996). Now, the most recent civility proposals in California are looking at beefing up Rule of Professional Conduct 8.4(d) which states that “[i]t is professional misconduct for a lawyer to:…(d) engage in conduct that is prejudicial to the administration of justice…” (see Committee on Professional Responsibility and Conduct meeting agenda 10/14/22, item F.1) and other rules.

Small e violations are not without consequence, even if that consequence is not discipline. Shappell illustrates this. The Court of Appeal reversed the order denying the motion to vacate the default judgment because Shappell’s counsel violated the rule that “[a]n attorney has both an ethical and statutory obligation to warn opposing counsel, if counsel’s identity is known, of an intent to seek a default and to give counsel a reasonable opportunity to file a responsive pleading.” This rule cannot be found in the realm of Big E. Instead it comes from case law, specifically LaSalle v. Vogel (2019) 36 Cal.App.5th 127, 137. In LaSalle, the Fourth District Court of Appeal concluded “unequivocally, and without qualification…. that [this] obligation is rooted in decades of case authority and… is reinforced by a statutory obligation arising under Code of Civil Procedure section 583.130.” Justice Bedsworth, writing for the court, cited the small e California civility guidelines as cementing this duty as an ethical rule:

In contrast to the stealth and speed … courts and the State Bar emphasize warning and deliberate speed. The State Bar Civility Guidelines deplore the conduct of an attorney who races opposing counsel to the courthouse to enter a default before a responsive pleading can be filed. (Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 702, 84 Cal.Rptr.3d 351 (Fasuyi), quoting section 15 of the California Attorney Guidelines of Civility and Professionalism (2007).) Accordingly, it is now well-acknowledged that an attorney has an ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default. (Id. at pp. 701-702, 84 Cal.Rptr.3d 351.) LaSalle was previously discussed on the California Legal Ethics blog where I characterized it as A Judicial Cri de Coeur on Civility. It is an impressively written opinion but it still rests on small e as the court’s dismissal of Bellm v. Bellia (1984) 150 Cal.App.3d 1036 (LaSalle at 136) and its distinction of “legal” v. “ethical” shows. Big E is all about the law, the law that can get you suspended or disbarred.

But what about Code of Civil Procedure 583.130 cited as supporting a duty to warn before taking default? It says “It is the policy of the state that a plaintiff shall proceed with reasonable diligence in the prosecution of an action but that all parties shall cooperate in bringing the action to trial or other disposition.” This is real black letter law, right in the Code of Civil Procedure! Could this be a route to get from small e to Big E? California Bus. & Prof. Code section 6068(a) says that it is duty of lawyer to support the laws of the state of California. The State Bar Court Review Department held in In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476, that “that the Supreme Court interprets section 6068(a) as a conduit by which attorneys may be charged and disciplined for violations of other specific laws which are not otherwise made disciplinable under the State Bar Act.” The Lilley court was unclear as to whether this conduit was so wide as to admit a violation of a statute not in the State Bar Act but 6068(a) is broadly worded. The statute is also vague about what cooperation entails, much as Rule 8.4(d) is vague in lacking anything like a definition of the prohibited conduct beyond “prejudicial to the administration of justice.”

Vague but Wunsch-caliber vague? So far OCTC has shown no appetite for creative theories justifying civility prosecution. But small e can make a big difference in in the civil courts, especially in the Fourth Division.

“Ethics is a club they beat you with…”

Former President of the Association of Professional Responsibility Lawyers

Brawerman v. Loeb & Loeb, Second App. Dist., Div 8, case no. B305802, filed 8/3/22.

The plaintiffs hired the defendant law firm to advise him in a financial transaction. The fee agreement contained an arbitration clause. Defendant law firm had an associate who was licensed in New York but not California work on the matter, contributing 382 hours to the total of 928 billed by the firm. The relationship went south and plaintiffs filed this action against the law firm and the unlicensed-in-California associate for professional negligence and breach of fiduciary duty. Defendants moved to compel arbitration. Before arbitration, plaintiffs discovered the licensing status of the associate and moved to remand the matter to the trial court, arguing that the unlicensed status of the associate meant the entire fee agreement, including the arbitration was clause was void due the fraud. The arbitrator denied the motion, finding the arbitration clause severable. The decision after arbitration found the firm and the associate liable but concluded that the plaintiffs suffered no damages. The award ordered disgorgement of $138,075 in fees paid for the unlicensed associate’s services and $94,933 for the plaintiff’s fees incurred in the arbitration in connection with litigating that issue. The trial court confirmed the arbitration and the inevitable appeal followed.

On appeal plaintiffs again argued that entire fee agreement was tainted with fraud due the associate’s lack of California licensing and the law firm’s ethical misconduct in having the unlicensed associate work on the case. Citing one of the most significant California Supreme Court cases of the recent past, Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 6 Cal.5th 59, 72, they contended the ethical misconduct meant the arbitration award must be voided and the matter remanded to the trial court because “the arbitration has been undertaken to enforce a contract that is ‘illegal and against the public policy of the state.” (Sheppard, supra, 6 Cal.5th at p. 73.)

Defendants based their argument on another heavyweight pronouncement from the California Supreme Court, this one from the last century, Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119. Birbrower held that an unlicensed attorney’s illegal practice of law pursuant to the retainer agreement does not render the entire retainer agreement illegal.

In this Clash of the Ethics Titans, the Court of Appeal found Birbrower persuasive and Sheppard distinguishable. They upheld the trial court’s confirmation of the arbitration award. Along the way, they chastised plaintiff’s counsel for not even discussing Birbrower until page 79 of their reply brief and remanded counsel that Rule of Professional Conduct 3.3(a)(2) requires counsel to disclose authority known to be adverse to their position (see Rule 3.3: Another Shot Across the Bow.)

The Court of Appeal demurred on directly addressing the ethics issues involved in the firm’s assignment of an unlicensed associate to provide legal services to a California client in California, despite plaintiffs’ invocation of yet another heavyweight California Supreme Court case In Re Rose (2000) 22 Cal.4th 430. “We are reviewing a lower court’s order confirming an arbitration award, not conducting attorney discipline proceedings. And our jurisdiction has been invoked by appeal, not through any original petition. In re Rose has no application here.” So the question of whether lawyers of the defendant law firm might have violated former Rule of Professional Conduct 1-300(A) (current Rule 5.5(a)(2)) will have to be answered in another forum, if it is to be answered at all.

While it doesn’t exactly fit the mould, Brawerman reconfirms a truth about legal ethics captured in the pithy quote cited above from a former president of the Association of Professional Responsibility Lawyers (APRL). In the civil arena, legal ethics are largely invoked in arguments about money, usually to justify non-payment of money. Here they were invoked in an unsuccessful effort to get another shot at proving up a claim of damages in front of a jury, a jury presumable less lawyer friendly than the arbitrator. It seems unlikely that this case will wind up in the pantheon of Supreme Court Titans, so the plaintiffs will likely have to be content with the disgorgement of fees.

Shiheiber v. JP Morgen Chase Bank, First App. Dist., Div. 2, A160188 filed 7/26/22.

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.

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.

Hassett v. Olson, Third App. Dist., case no.C092212, filed 4/20/22, modified and certified for publication 4/13/22. Stephen Baily, while a Superior Court judge in El Dorado County, presided over litigating and issued orders relating to the enforceability of one Cody Bass’s options to purchase two South Lake Tahoe properties. Baily left the bench. He was then employed as co-counsel the trustees of the one of the properties, Dastur, in litigation brought by Hassett, who claimed ownership of the properties. Baily sent a letter to the assigned Judge of the El Dorado Superior Court in his capacity as counsel for Dastur citing his former status as a judge and their social relationship and suggesting the entire El Dorado Superior Court recuse itself. She did and the case was transferred to a Sacramento County judge. Hassett brought a motion to disqualify Baily, citing Rule of Professional Conduct 1.12, which says:

a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, judicial staff attorney or law
clerk to such a person* or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceeding give informed written consent.

In support of his motion, Hassett attached Baily’s letter. The trial court granted the motion, based on the inherent power of the court (codified in Code of Civil Procedure section 128, subdivision (a)(5)) to control proceedings in the furtherance of justice. The court cited an “appearance of impropriety”, as well as a violation of Rule 1.12. The definition of “matter” in Rule 1.12 was broad enough to include Hassett’s action, even though he was not a party to the prior actions where Baily was directly involved, and Baily was found to have substantially participated in the matter. Finally, Baily’s law firm was also disqualified as there was no showing it was screened from participation as required by Rule 1.12.

The Court of Appeal affirmed. Hassett had standing, despite the fact that he was not a party to the prior actions. It was not necessary to show that Baily possessed confidential information under Rule 1.12. Matter and case are not synonymous, as shown by comment 1 to Rule 1.12. Moreover, California Rule 1.7(e) provides a broad definition that is similar to ABA Model Rule 1.11, which governs the same principles for government lawyers discussed in ABA Model Rule 1.12, the basis for the California rule.

For purposes of this rule, “matter” includes any judicial or other proceeding, application, request for a ruling or other determination, contract, transaction, claim, controversy, investigation, charge, accusation, arrest, or other deliberation, decision, or action that is focused on the interests of specific persons,* or a discrete and identifiable class of persons

The Court of Appeal concluded that no abuse of discretion by the trial court had been shown.

Cases interpreting the new Rules of Professional Conduct are still rare and this well-reasoned opinion is a worthy addition to prior California cases that reached similar conclusions without the benefit of Rule 1.12

The California Supreme Court has denied the Office of Chief Trial Counsel’s petition for review in In the Matter of Respondent BB, as case discussed in a previous post Going To The Mountain, posted 2/20/22. BB involved a San Francisco public defender found of two counts of disrespect to the courts and one count for failure to obey a court order. The hearing judge determined an admonition was appropriate under the “unique circumstances” established at trial along with five circumstances in mitigation and only one in aggravation; OCTC had sought a 30 day actual suspension. The Review Department, and now the Supreme Court, upheld that disposition.

We are told that California Rules of Professional Conduct are rules for discipline. And yet there are many Rules of Professional Conduct that are never, as far as can be determined, formed the basis for any discipline. In fact, these Rules largely serve an advisory role, giving lawyers notice of what the expected norms of professional conduct are. This distinction is more explicitly spelled out in the American Bar Association Model Rules of Professional Conduct in the Preamble section 14: “The Rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define a lawyer’s professional role.” But ultimately, it is the possibility of professional discipline that gives the Rule force.

People v. Williams, Second District, Div. 5, case no. B311161, filed 2/24/22, involves California Rule of Professional Conduct 3.3(a)(2). The Rule says

A lawyer shall not:…
(2) 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

Rule 3.3(a)(2) was adopted in November 2018, part of the extensive revision of the California Rules of Professional Conduct to conform more closely to the American Bar Association Model Rules of Professional Conduct and adopts the text of Model Rule 3.3(a)(2), along with a second clause derived from former California Rule of Professional Conduct 5-200(c). Given the recent adoption of the Rule, it is not surprising that it has not been the object of any discipline enforcement. The model Rule, though, has been cited in the unpublished decision in Martin v. Stenger, a 2014 decision from the First Appellate Dist., Div. 2, (2014 WL 2211719).

Although California has not adopted the Model Rules, courts and [attorneys] find the rules … helpful and persuasive in situations where the [California rules] are unclear or inadequate.’ (1 Witkin, Cal. Procedure, supra, Attorneys, [§ 407, p. 521.] ) We are one of those courts. (See generally Fortune et al., Modern Litigation and Professional Responsibility Handbook (2001) § 8.5.1, pp. 329–330 [‘The obligation to disclose adverse legal authority is an aspect of the lawyer’s role as “officer of the court.” … lawyers should reveal cases and statutes of the controlling jurisdiction that the court needs to be aware of in order to intelligently rule on the matter. It is good ethics and good tactics to identify the adverse authorities, even though not directly adverse, and then argue why they are distinguishable or unsound. The court will appreciate the candor of the lawyer and will be more inclined to follow the lawyer’s argument’].)” We do not imply that either counsel acted knowingly or intended to mislead when they failed to cite Yang. We nevertheless remind counsel of their obligation.

Martin v. Stenger, unpublished slip opinion at pages 2-3

Williams involves a failure by counsel to cite what the Court of Appeal deemed controlling authority in the appeal, specifically case law finding the subject order not appealable. The decision reveals the frustration the Court of Appeal found with the lawyer’s response to the Court’s direction to submit a letter brief on the issue of whether Rule 3.3(a)(2) had been violated, frustration which led the Court of Appeal to make this a published decision with a stern warning:

An attorney who prosecutes an appeal while failing to cite known authority that this court has no jurisdiction to entertain it violates the attorney’s duty of candor (where the authority is not otherwise brought to the attention of the court by another party to the appeal). Any such future violation, in the view of this court, may warrant disciplinary review by the State Bar or other corrective action.

People v. Williams, slip opinion at page 14-15

In adopting much of the ABA Model Rules, California has taken many of their “constitutive and descriptive” precepts and made them enforceable through the disciplinary process. Of course, the California Rules of Professional Conduct, although emphasizing their provenance as discipline rules since their original adoption in 1928, have always contained a lot of similar material, especially after the California Rules were re-written in response to the ABA Code of Professional Responsibility in 1975. But the Big Stick is always present, and the current mood of the discipline enforcers in the Office of Chief Trial Counsel means the discipline can never be ruled out. California lawyers who have not read the latest revision of the Rules of Professional Conduct practice are at some risk. Just ask the Second District Court of Appeal.