Hypothethics is an attempt to move the debate about legal ethics beyond discussions by one or two lawyers at a time, to a discussion by the entire bar membership. Below is another in a series of periodic columns dealing with contemporary ethical issues in the legal community. Please limit your response to 200 words or less and send by: FAX: 213/765-1611, E-MAIL: sbcocr@ix.netcom.com, MAIL: Office of Client Relations, State Bar of California, 1149 S. Hill St., Los Angeles, CA, 90015-2299

Here is this month's hypothetical situation ... What would you do?

Should the probation officer be told?

Lawyer L is a struggling new practitioner. Client C comes to L with a legal matter. During discussion of the legal matter, C tells Lawyer L various unrelated facts including the fact that C is on probation for passing bad checks and that C will have to do prison time if probation is violated.

L asks for a $1,500 retainer. C convinces L to begin work even though it will take a couple of days for C to pay the retainer.

After several reminders from L, C finally pays the retainer with a personal check that is returned because it was drawn on an account closed two years earlier.

L knows who C's probation officer is.

The previous case

Lawyer L's firm represents a real estate developer whose most recent project has been opposed by a community group concerned about increased traffic and crime in their neighborhood. The community group has brought an action of injunctive relief against the real estate developer. The leader of this opposition is a highly respected Religious Leader (RL) well known for publicly espousing family values and the sanctity of marriage.

While preparing to depose RL, Lawyer L has discovered RL is having an extra-marital affair, possibly one of many. Lawyer L believes that RL would do just about anything to avoid disclosure.

Would it matter how the information about RL was acquired?

Should Lawyer L's personal feelings about RL matter? Suppose Lawyer L generally supports the work RL has done in the community?

Some responses:

Although some might argue that your obligation to zealously represent your client includes things like ruining reputations, I do not agree. In fact, I believe that a lot of the public (even client) dissatisfaction is due to lawyers trying very hard to destroy opposing parties, rather than producing a good result for their client.

Therefore, I would propose that in the hypothetical sense, the lawyer approach RL and privately present him with the information and suggest that he clean up his act, but not use the information or threaten to use the information against him or the opposition. If RL chooses to lessen his opposition (very likely because he recognizes that you are a decent person and would therefore not jeopardize the community) you have assisted in achieving your client's objectives.

If not, the information was really irrelevant at best, and is therefore not germain to the legal or factual issues. Since you are not using the information for advantage, I do not believe how you acquired it is important. If RL chooses a public role he should be ready for full public disclosure of his actions; right or wrong, that is how the media works.

I do not believe that the lawyer's personal feelings should matter; if the lawyer believes that he should use the information but does not, that could constitute not zealously representing.

Paul Marotta

The hypothetical facts are interesting, but the central question seems unasked: Is it appropriate to ask a witness questions of an embarrassing, personal nature that appear to be irrelevant to the subject of litigation? Based on my review of the facts given, I would answer no.

The lawsuit is over the respective rights of the developer and the community as to this particular project. Whether RL is having an extramarital affair strikes me as irrelevant and improper "impeachment." Even if the affair had some minor relevance, it almost certainly would be excluded at trial under Evidence Code §352.

Los Angeles County Superior Court Rule 7.12(e)(5) (under the rules of Litigation Conduct) indicates that counsel should not "inquire into a deponent's personal affairs or question a deponent's integrity" unless it is "relevant to the subject matter of the deposition." Given these facts, I would follow that rule.

Of course, if the notion is that one might threaten RL with disclosure of the affair to seek dismissal of the litigation, then the law of extortion comes into play as well.

Bruce Leiserowitz
Los Angeles