California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JANUARY 2001
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ETHICS BYTE

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Mixed rulings on advertising fiduciary duty
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By DIANE KARPMAN
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Diane KarpmanIt is a wondrous time to be a lawyer. That is, unless you do plaintiffs’ construction defect cases, or believed that building codes served some socially recognizable goal, or didn’t realize that your clients almost have to be injured before they could sue for shoddy building practices. (Aas v. Superior Court, 2000 Cal. LEXIS 9048)

On the other hand, another case has ushered in “halcyon days” for First Amendment lawyers. The venerable Justice Mosk has pulled off the “post-it,” removing the artificial categorization of “commercial speech” from the First Amendment back to the California Constitution, Article I, which is “broader,” “greater,” and “unbounded in range.” When I first read Gerawan Farming v. Lyons (Nov. 27, 2000) 2000 Cal. LEXIS 8927, I had visions of skywriters blanketing the Los Angeles sky with attorney ads. Alas, those images were quickly trounced with footnote four, which allows for regulation of misleading lawyer speech.

The universe exploded for everyone else, though, as long as it is “truthful and non-misleading,” which is a good standard for lawyers, too.  Remember that everyone advertises, since almost anything with your name on it, including cards, stationery and the ubiquitous coffee cups, falls under Rule 1-400 (A)(2).

There was also a perceptible shift involving fiduciary duty issues in a new State Bar Court case, In the Matter of Kittrell, (Rev. Dept., October 26, 2000) 2000 Calif. Op. LEXIS 11.  (Although it is still on Lexis, there are motions pending to reconsider.) A lawyer who had been a defendant in civil litigation was found to have engaged in conduct involving malice, oppression, or fraud, pursuant to “special” (but fairly common) jury instructions and verdict forms. Plaintiffs’ lawyers routinely include these claims to possibly “jackpot” into punitive damages.

This case indicates that lawyers should be very careful in “rolling the dice” and think twice before having their day in court. Remember that “an attorney’s deliberate breach of a fiduciary duty or a breach resulting from the attorney’s gross carelessness and negligence involves moral turpitude.” Such a breach “even in the absence of a fiduciary relationship involves moral turpitude as a matter of law.” Although these may have been “well-established” principles, they were never as tightly drawn.

Does this mean that Breach of Fiduciary Duty (fraud), equals Moral Turpitude, equals violation of Business and Professions Code 6106 as a matter of law? What about the potential preclusive effect pursuant to principles of collateral estoppel? How are runaway juries factored into the equation?

During the week that case was published, the State Bar Court judge who authored the decision was intellectually assaulted on Friday night at the supermarket and nearly argued into the salad dressings. After graciously listening to a passionate discussion, he gently extricated himself in order to pick up a quart of milk. He is a good sport and did not object to my recounting this anecdote. A very special thank you for years of service to the legal profession is owed to Judge Kenneth Norian.

Los Angeles attorney Diane Karpman can be reached at 310/887-3900 or karpethics@aol.com.