are a different breed of animal. They are separate and apart from all
the other species that inhabit lawyer-land. In trial, there is no time
or space, nothing but the laser-like focus on winning the case.
Because of this, litigators sometimes forget the basics and cross over
the line, resulting in all kinds trouble.
For instance, in a recent case which demonstrates
emerging issues of liability exposure to the opposing party, an
appellate court determined that a firm could be sued for the invasion
of privacy. The court held that our gargantuan security blanket
articulated in the litigation privilege (Civil Code §47) that we
believe blesses anything remotely relating to a trial, amazingly, did
not protect the attorney. In Jeffrey H. v. Imai, Tadlock & Keeney
(2000) 85 Cal. App. 4th 345, a garden variety automobile personal
injury case, the copy company inadvertently delivered to the attorney
confidential medical records involving a positive HIV test.
Subsequently, in a letter returning "some" of
the private documents, the lawyer stated that he did not believe that
he had any other documents. He said, "If I subsequently locate any
such documents, I will forward them to you." Well, will wonders
never cease! Somehow, some of those pesky documents appeared in the
In Bryan v. Bank of America (Jan. 12, 2001) 86
Cal. App. 4th 185, a case involving the client's right of
confidentiality (and the lawyer's attempt to protect that core
value), the lawyer's client became delusional and disappeared. The
lawyer filed for a continuance in the court of appeal to preserve the
client's case. He believed that the duty of confidentiality
prevented disclosure of his client's situation. The attorney,
therefore, justified checking the box which indicated that his client
had been notified of his request for continuance in filing the opening
The attorney believed this presented an ethical
dilemma. If he withdrew, his client would lose her cause of action.
Yet to proceed was a violation of Rule of Professional Conduct 5-200
(Trial Conduct), mandating honesty and candor to the court. So, he
fell on his sword and tried to protect his client.
However, other documents were also filed in the
case. These falsely represented, under penalty of perjury, that
opposing counsel had been notified, on a "rush basis" (is there
any other basis in a law office?), by none other than the proverbial
paralegal. "The presiding justices who rule on such motions are
obliged to assume the honesty and accuracy of such declarations, which
are commonly submitted by officers of the court . . . ."
The court held that we cannot "foist off
responsibility on a paralegal." So be mindful, that old paralegal
"fall back" version of the more common "the dog ate my
homework" excuse is toast.
Karpman represents attorneys before the State Bar, consults on ethics
issues and is frequently retained as an expert witness in legal
malpractice, conflicts of interest and other ethics matters. She can
be reached at 310/887-3900 or at firstname.lastname@example.org.