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Ethics Roundup 2016

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Ethics Roundup 2016 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE ethics credit. To apply for credit, please follow the instructions on the test answer sheet on page 25. by John W. Amberg and Jon L. Rewinski 2016 Ethics Roundup Last year attorneys in the state found relief from malpractice claims under statutes regarding one-year tolling limitations and anti-SLAPP provisions respect for the trine. After conclusion of class litigation chal- IN 2016, rule of law and lenging the validity of certain city taxes, one the civic virtues of duty, honesty, and civility of the plaintiffs’ lawyers served a PRA request. embodied in the California Rules of Pro - An administrative officer released 53 docu- fessional Conduct never seemed more impor- ments, among them three documents that tant. Traveling in Colombia, Los Angeles had been listed on a privilege log during the Superior Court Judge Benny Osorio was res- litigation, and the city moved to recover cued from kidnappers demanding a $33,000 them. Reversing the lower courts, the ransom.1 At home, the State Bar of California Supreme Court held that, like the Evidence was rescued by the California Supreme Court, Code, the PRA protects attorney-client priv- which assessed bar members to fund the State ileged communications absent an intentional Bar’s disciplinary system after the legislature and knowing waiver. adjourned without authorizing 2017 dues.2 In December, a sharply divided Supreme A state audit report found that the state bar’s Court again addressed the attorney-client client security fund, which reimburses victims privilege of a government agency, resulting of attorney dishonesty, was underfunded at in a controversial new approach to privilege the beginning of the year by $16 million and analysis. In Los Angeles County Board of experiencing long delays.3 Supervisors v. Superior Court,6 the American Attorney-Client Privilege John W. Amberg is a partner in the Los Angeles The California Supreme Court twice ad - office of Bryan Cave LLP, and Jon L. Rewinski is a dressed the attorney-client privilege of gov- partner in the Los Angeles office of Locke Lord LLP. ernment agencies under the Public Records They are former chairs, and Amberg is a current Act (PRA).4 In Ardon v. City of Los Angeles,5 member, of LACBA’s Professional Responsibility it held that the city’s inadvertent disclosure and Ethics Committee. Amberg is also a former of documents in response to a PRA request chair, and Rewinski a former member, of the did not waive the protection of the attor- California State Bar’s Committee on Professional ney-client privilege and work product doc- Responsibility and Conduct. Los Angeles Lawyer April 2017 23 Civil Liberties Union served a PRA request as an additional, nonstatutory element to the may not use information acquired during a seeking invoices from law firms defending Legislature’s definition of a ‘confidential com- previous engagement against a former client.19 the county in nine lawsuits alleging police munication’ is unsupported in law.”13 The Refined in Rule 3-310(E) of the California brutality. The county produced invoices for dissent criticized the majority’s “unconvincing Rules of Professional Conduct, this principle three closed cases with attorney-client and attempt to distinguish” Costco and, “even led to a lawyer’s disqualification in Costello work product information redacted, and, cit- more pernicious. .its suggestion that the v. Buckley.20 A woman hired her boyfriend’s ing the attorney-client privilege and work protective scope of the privilege somehow brother, a lawyer, to represent her in an ease- product doctrine, declined to produce invoices wanes with the termination of the subject ment dispute. After the case ended and the for six pending cases. On the ACLU’s petition litigation.”14 couple broke up, the woman sued her ex- for writ of mandate, the superior court The opinion may be limited by its facts, boyfriend to collect a $92,000 debt. When ordered the county to produce redacted but its broad language belies such limitation. her ex-lawyer appeared as counsel for his invoices for all nine cases. The court of appeal Focusing on the content of the communica- brother and served requests for admission reversed, concluding the invoices were entirely tion is a new approach to privilege analysis demanding she admit the money had been a privileged. By a 4-3 vote, the supreme court in California and will be particularly chal- gift, she disqualified the lawyer because he reversed. lenging for state court judges, who are pre- had obtained confidential information about The majority opinion, written by Justice cluded by Evidence Code Section 915(a) from her romantic relationship during the easement Mariano-Florentino Cuéllar and joined by ordering an in camera inspection of the mate- dispute. In vain, the defendant argued there Justices Ming W. Chin (who wrote the Ardon rial claimed to be privileged.15 How will a could be no conflict because there was no opinion), Goodwin Liu, and Leondra Kruger, court determine whether information is prop- substantial relationship between the two rep- declined to follow the seminal modern case erly redacted? It remains to be seen. resentations and the information was unnec- on the attorney-client privilege, Costco essary to prove plaintiff’s case. The plaintiff Conflicts of Interests Wholesale v. Superior Court,7 which held did not need to rely on the presumption of the privilege attaches to the transmission of Courts did not hesitate to enforce the duty Rule 3-310(E) that information is material information during the attorney-client rela- of loyalty by disqualifying lawyers with con- if there is a substantial relationship between tionship, and does not depend on the content flicts of interest. Three years into a complex the two engagements because she proved that of the communication. Instead, the majority racketeering case against dozens of defendants her former lawyer possessed confidential focused on the content and purpose of the who allegedly paid kickbacks for referrals, information about her romantic relationship communication and concluded: “In order engaged in illegal fee sharing, and submitted that could be used against her.21 She did not for a communication to be privileged, it must fraudulent bills for reimbursement, District need to show that her ex-lawyer actually be made for the purpose of legal consultation, Judge Andrew J. Guilford disqualified Hue - used material confidential information, only rather than some unrelated or ancillary pur- ston Hennigan LLP from representing the that he could do so.22 pose.”8 Relying on dictum in Concepcion v. plaintiff in State Compensation Insurance In Ontiveros v. Constable,23 Ontiveros, a Amscan Holdings, Inc.9 and federal authority, Fund v. Drobot.16 Concurrently with the minority shareholder in a closely held company, the court found that lawyers’ invoices gen- firm’s representation of SCIF, its partner Brian Omega Electric, Inc., brought direct and deriv- erally are not privileged, but “the information Hennigan represented one of the alleged co- ative claims of mismanagement against the contained within certain invoices may be conspirators, Paul Randall, who pleaded majority shareholder and Omega. He moved within the scope of the privilege. .[t]o the guilty to mail fraud. Hueston Hennigan had to disqualify the counsel jointly representing extent it is conveyed ‘for the purpose of legal amended SCIF’s complaint and filed a second the defendants because their interests were representation’—perhaps to inform the client civil suit naming more defendants, but, sig- rendered adverse by the derivative claims. The of the nature or amount of work occurring nificantly, did not sue Randall. A defendant defendants contended they had waived any in connection with a pending legal issue.”10 moved to disqualify Hueston Hennigan on conflicts and consented to joint representation, The court added, “[T]here may come a point the ground it represented both the victim, but the trial court ruled disqualification was when this very same information no longer SCIF, and one of the perpetrators of the fraud, automatic. The Fourth District Court of Appeal communicates anything privileged, because Randall. Judge Guilford granted the motion, affirmed the disqualification order as to the it no longer provides any insight into litigation holding Hueston Hennigan had “an actual company’s lawyers. Though Omega was nom- strategy or legal consultation.”11 Therefore, adverse, concurrent representation conflict.”17 inally a defendant, it was in substance the invoices for pending cases may be privileged, The movant was not a current or former plaintiff in the derivative suit. Also, under but invoices for closed cases were no longer client, but had standing because the ethical Rule 3-600(E), an organization’s consent to privileged and should be produced. breach was so severe that it obstructed the dual representation must be given by a con- In a vigorous dissent, Justice Kathryn M. orderly administration of justice. The court stituent other than an individual who also is Werdegar, joined by Chief Justice Tani Cantil- rejected conflict waivers obtained from SCIF to be represented, thus the majority shareholder Sakauye and Justice Carol Corrigan, criticized and Randall, finding them factually and could not consent for Omega.24 However, the the majority’s reasoning. Evidence Code Sec - legally inadequate, and explained: “[T]he appellate court partially reversed the disqual- tion 952 defines a “confidential communi- duty of loyalty is improperly and impermis- ification order, thereby permitting the lawyers cation between a client and lawyer” as “infor- sibly compromised when one firm repre- to continue to represent the majority share- mation transmitted between a client and his sents—at the same time, in the same litigation, holder because the only confidential company or her lawyer in the course of the relationship in the same courthouse—a criminal and his information they possessed came from him, and in confidence … and includes a legal victim.
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