Ethics Lawyer David C. Carr

Newsletter April 2018

Welcome to the Ethics Lawyer Newsletter for April 2018!

Civil Sanction Orders Cannot Be Collaterally Attacked in Discipline Proceeding

In the Matter of Collins, Review Dept. State Bar Court, case no. 16-O-10339, filed 3/28/18.  Attorney represented a client in civil litigation.  Client refused to respond to any discovery requests from the other side, leading to five sanctions orders issued against the client and the “Law Office of Joseph Patrick Collins.” The Office of Chief Trial Counsel (OCTC) charged attorney with five counts of failing to obey court orders (Bus. & Prof. Code §6103), and attorney stipulated to all of the predicate facts as well as culpability (but not discipline.) Following a one-day trial on aggravation, mitigation, and the level of discipline, a  hearing judge sua sponte dismissed the case, finding the sanctions orders were void or voidable and attorney had no obligation to comply with them. The Review Dept. reversed.  The sanction orders cannot be collaterally attacked in the discipline proceeding and the attorney is bound by the stipulation that he entered into.


 

Legal Malpractice Statute of Limitations Not Tolled by Plaintiff’s Incarceration

Austin v. John Michael Medicis, et al., Second App. Dist., Div. 3, case no. B277546, filed 3/21/18.  Plaintiff hired law firm to represent him in a serious criminal matter.  Law firm allegedly abandoned him before trial in September 2009 and he was convicted on all charges. Plaintiff filed legal malpractice and fraud case against law firm in September 2013.  Law firm’s demurrer on statute of limitations grounds was sustained without leave to amend.  Plaintiff appealed and the Court of Appeal affirmed.  Plaintiff did not plead any ground for tolling under Code Civ. Proc. §340.6 except his incarceration and that is not among the statutory grounds for tolling.


State Bar Issues Attorney Self Reporting Guidelines in Anticipation of Fingerprinting Requirement

The State Bar has filed the new proposed Rule of Court with the California Supreme Court that would require all attorneys to submit new fingerprints to the State Bar.  Anticipating that the rule will be approved, the State Bar has issued guidelines for attorneys to self-report certain criminal convictions before those fingerprints are checked against Department of Justice records.  The Guidelines are here and they track the attorney self reporting requirements in Business and Professions Code section 6068(o)(3).  The State Bar believes that thousands of California attorneys are practicing law in spite of a criminal conviction.


Public Comment: Proposed State Bar Ethics Opinion14-0003: Settling Before Withdrawal

The State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) is seeking public comment on proposed new ethics opinion interim no. 14-0003.  The opinion whether an attorney who is required to withdraw from representing a client under rule 3-700(B) because the client’s claim or defense lacks merit, may ethically settle the action before withdrawing from the representation? The opinion interprets rules 3-200 and 3-700 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6068(c), 6068(d), 6106, and 6128(a).

The opinion digest states: An attorney who has concluded that a client’s claim or defense lacks merit and cannot be pursued without violating the Rules of Professional Conduct or State Bar Act is required to withdraw from the representation. Before withdrawing, the attorney must take reasonable steps to avoid reasonably foreseeable prejudice to the client. Such reasonable steps may include settling the claim. However, the attorney may not make false statements to the opposing party about the merits of the client’s case during the settlement process. Nor may the attorney settle if the attorney knows that information bearing on the merits, which had to be disclosed to the opposing party, was not disclosed.

 The deadline for comments is 5 p.m. May 3, 2018

Direct comments to

Angela Marlaud
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard St.
San Francisco, CA 94105-1639
Phone: 415-538-2116
Fax: 415-538-2171
Email: angela.marlaud@calbar.ca.gov


That’s Why They Call It Practice: The Nuremberg Defense

One of many interesting aspects of the Collins case, discussed above is attorney Collins’s explanation for why the Court’s sanction orders were not responded to (at page 4):

Collins also testified on his own behalf and was the sole witness in the proceeding. In both his declaration and his trial testimony, Collins explained that the decision not to comply with the discovery requests was client-driven. He stated that Caverly wanted to keep litigation expenses to a minimum, and made the tactical decision to cease participation and let the case terminate by default. Thus, Caverly did not respond to discovery requests or attend his scheduled deposition, and neither Caverly nor Collins opposed the motions to compel and requests for sanctions, appeared at the hearings on those motions, sought reconsideration, or otherwise challenged or appealed the sanctions awards. Although Collins was served with and received copies of all pleadings and orders, he contends that he was simply following Caverly’s instructions.

The defense that “I was just following orders”  gained notoriety during the war crimes trials of Nazi officials at Nuremberg in 1945 and 1946.  It was offered as a defense to some of the most horrendous crimes in human history.   Needless to say, it failed as a defense.  Mr. Collins, wisely, did not attempt to offer his client’s instructions as a defense at his State Bar Court trial but stipulated to culpability for his serial failures to obey the Court’s orders, as he was required to do under Business and Professions Code section 6103: “A wilful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension.”  That stipulation was regarded as a substantial mitigating factor and ultimately saved Mr. Collins from a much longer suspension.

Are there any circumstances where the Nuremberg defense would be valid in a discipline case? It is hard to conceive of any.  An attorney, even as an attorney acting as an advocate for a party, as many if not most of us, do, is still an officer of the court, as section 6103, and the relatively heavy prescribed disciplinary sanction — actual suspension or disbarment under Standard 2.12(a), make very clear.  A lawyer and client cannot contract around the Rules of Professional Conduct (see ABA Model Rule 1.2, comment 8.) A client’s instructions to ignore an ethical rule would trigger at least a permissive right to withdraw under California Rule of Professional Conduct 3-700(c)(1)(c), and, somewhat paradoxically, a mandatory duty to withdraw under Rule 3-700(b)(1) if the lawyer agrees.

Mr. Collins did not know what he was buying when he remained counsel as part of his client’s desire to save money.  He may have been under the sway of a pernicious idea, the idea that a lawyer must acquiesce to the client’s wishes.  This is perfect object lesson in the importance of saying “no” to very bad idea, even if it costs you a client.