Ethics Lawyer David C. Carr

Newsletter May 2017

Welcome to the Lawyer Ethics Newsletter for May 2017!

Disbarment for Lawyer Who Disobeyed Administrative Order He Failed to Report

In the Matter of Moriarty, State Bar Court Review Dept., case no. 15-O-10406, filed 4/20/17.   Respondent had been disciplined twice before since his admission in 1989.  On this third trip, he was charged with misconduct in two client matters. A hearing judge found him culpable of moral turpitude for: (1) failing to correct a misrepresentation made on his behalf to an administrative tribunal; and (2) intentionally making a false representation to an administrative tribunal. The judge dismissed charges, however, that he failed to obey orders of an administrative tribunal and failed to report related sanctions to the State Bar. The judge concluded that the specific tribunal involved was not a “court” and that sanctions issued by its administrative law judges (ALJs) were not “judicial sanctions.” The hearing judge, after weighing aggravating and mitigating circumstances, recommended 18 months actual suspension. The Review Dept. found the additional culpability on appeal, holding that the orders of administrative tribunals must be obeyed under Bus. & Prof. Code section 6103 and that a sanction from an administrative tribunal must be reported under Bus. & Prof Code section 6068(o)(3). It found no good reason to deviate from the State Bar’s “three strikes” standard (Standard 1.8(b)) and recommended disbarment.


Supreme Court Adopts New Prosecutor Misconduct Rule But Requests Modifications

The California Supreme Court approved in part the proposed new rule of professional conduct addressing prosecutor misconduct, Rule 5-110.  The Supreme Court declined to approve proposed part (D) of the rule regarding the prosecutor’s duty to provide exculpatory evidence to the defense and asked the State Bar to examine a proposed revised part (D) and consider whether public comment was needed on it. It also asked the State Bar to further define “cumulative disclosures of information” in one of the comments and declined to adopt section (E) regarding when a prosecutor may subpoena a lawyer to testify about a former client, subject to re-drafting to potentially cover all lawyers.


LACBA Ethics Opinion: Attorney Engaged by Insurer Must Withdraw On Knowledge of Information That Could Deny Coverage

The legal ethics committee of the Los Angeles County Bar Association has issued its formal opinion #528.  The opinion seeks to answer the question as to panel’s counsel’s ethical obligation to the insured on discovery of a so-called mea culpa letter suggesting the insured’s was aware of the claim before applying for insurance.  The opinion states that the letter creates a conflict of interest between the insurer and the insured, that panel counsel may not reveal the letter to the insurer and must withdraw from representation of the insured.


 New Chief Trial Counsel Selected By Board of Trustees

The Board of Trustees of the State Bar of California has selected a new Chief Trial Counsel to head the State Bar’s discipline prosecution office, the Office of Chief Trial Counsel (OCTC). Steven Moawad is a long-time Contra Costa County prosecutor, serving as deputy district attorney in Contra Costa County since 1997 and a manager of the District Attorney’s Special Operations Division since 2012 and a senior deputy district attorney since 2014. His extensive prosecutorial experience includes consumer protection, environmental protection, insurance fraud, as well as criminal cases. He also served as the project manager for the implementation of a new case management system for the Contra Costa County District Attorney’s Office. Moawad received his J.D. from University of San Francisco School of Law in 1997 and a Master of Business Administration from St. Mary’s College of California in 2003. He was admitted to the State Bar as a licensed attorney in 1997.  The job has been vacant since Jayne Kim resigned in April 2016 and has been filled by Deputy Chief Trial Counsel Greg Dresser on an interim basis.  The appointment must be confirme by the Senate Rules Committee within one year.


State Senate Approves State Bar Fee Bill

The California Senate has unanimously (39-0) approved legislation that would authorize the State Bar to collect membership fees for the next two years.  SB 36 would also spin off the State Bar’s sections into a separate entity, reduce the size of the State Bar Board of  Trustees from 19 to 13 members by removing the elected attorney trustees and abolish the offices of State Bar President and Vice President, replacing them with an appointed Chair and Vice Chair.   The bill now moves to the Assembly Judiciary Committee, whose chair Mark Stone has expressed some skepticism about authorizing membership fees for two years.


 That’s Why They Call It Practice: Sleeping Dogs and Barking Dogs

A few years ago I was at an MCLE event where superstar lawyer Tom Girardi was speaking on law practice management issues.  Two types of clients communication issuesn trouble according to Girardi:  sleeping dogs and barking dogs.

Sleeping dogs are those cases where nothing much seems to happen for a long periods of time, but the case is there waiting to awaken at any one time.  Barking dogs are those cases that are constantly calling out for attention. Sleeping dogs are problematical from a communication standpoint because long periods of time go by with no activity.  The attorney doesn’t communicate with the client and the client can interpret the lack of communication as a lack of interest on the part of the lawyer.

Barking clients are those cases and clients that demand almost constant attention;  the type of client that will, in the modern age, send the lawyer 20 emails in one day.  The constant demands for attention may paradoxically put the the lawyer off from the communicating with the client.   The case becomes one the lawyer wants to avoid.

The duty to communicate with the client as set forth in our ethics law seems straightforward enough. Rule 3-500 says that “A member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.  Business and Professions Code section 6068(m) is very similar:  it is the duty of an attorney “to respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.”

But the professional standards are only the starting point for what the successful lawyer does.  They are floors, not ceilings.  Part of maintaining good client relations, which means happy clients who make referrals, is dealing with both sleeping dogs and barking dogs.  That means designing systems to insure that clients receive regular periodic communication from the lawyer. Lack of communication is the number one complaint made to State Bar.

Years ago when I was a practicing debt collection lawyer, we had a tickler system, based on nothing fancier than a large manilla envelope with pockets for each day of the month. Inside those pockets was a reminder to send the client some kind of communication in writing every 30 days.  Sometimes that was a simple check off the box form including one box stating “nothing new to report, calendar ahead 30 days” and other boxes indicating common events in the collection practice, such as recording an abstract of judgment.  Sometimes it was more detailed letter.

The point is that every client received a “touch” from their lawyer every thirty days. The sleeping dogs slept easier;  the barking dogs barked less.  Every lawyer in any practice can benefit from treating client communication as an essential office function.