California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - OCTOBER 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - October 1999
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News
Johnson confirmed for second term as bar's top prosecutor
Courts serve up mixed rulings on State Bar
Ethics association elects Karpman president
Six new governors join bar board
New group targets health care fraud
Public law section creates online library of public law links
JoAnne Spears honored
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Trials Digest
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Opinion
Slaying an imaginary dragon
The perfect ending: Results
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From the President - This bar year ends on a high note
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Letters to the Editor
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Public Comment
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Legal Tech - Tips for network administrators
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New Products & Services
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1999 Honors
State Bar cites pro bono service
Young lawyers salute San Diego sole practitioner for outstanding service
State Bar hails 'lawyer's lawyer'
Aided by attorney, parolee cited, hired
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MCLE Self-Study
The Rigors of Fee Agreements
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - Before you sue for fees, think again
Woman who impersonated husband ordered reinstated
Attorney Discipline

ETHICS BYTE

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Before you sue for fees, think again
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Every so often, some hardworking lawyer will telephone to explain that a former deadbeat client with a large overdue bill is going to bankrupt his or her practice, and he or she is going to sue for fees. The image that comes to my mind is a scene of Russian roulette. Yes, some lawyers are successful at this, but then there are the others who just barely survive. Should you be considering this, think again.

Diane KarpmanBy the way, did you ever get around to sending a disengagement letter to this wayward client? Is that client still a recipient of your newsletter or holiday greetings, encouraging the client to believe you are willing to still be their champion? Clients, particularly when sued, are notoriously unsure of when and if the attorney-client relationship has ended. Termina-tion is clearly defined if there is a disengagement letter sent, the scope of representation was clear in the retainer agreement, or you have withdrawn.

Remember, the rules do not explicitly delineate or limit the fundamental common law fiduciary obligations, and there isn't a specific rule prohibiting a suit against an existing client (Santa Clara County Counsel v. Woodside (1994) 7 Cal. 4th 525, 548). Clearly, however, loyalty is the principle underlying Rule of Professional Conduct 3-310 (C), that an attorney cannot assume a position adverse or antagonistic to a client.

"Courts have found no barrier to suing a former client in the absence of a substantial relationship between the matters." (Restatement of the Law of Lawyering, 213, p. 727). However, if that substantial relationship exists, one court, in a quirky decision, maintained that the duty of loyalty, even long dormant, can resurrect itself (Damron v. Herzog (1995) 67 F. 3d 211). Loyalty is always a fertile source of controversy in motions to disqualify counsel in the civil arena, because what could be more disloyal than representing an adverse party in litigation?

Remember that suing a client is a surefire way to be countersued for malpractice, breach of fiduciary duty or worse, even if your performance is impeccable. If the statute of limitations has run, the client can seek that pound of flesh at the State Bar, where the five-year period of limitations (Rule of Procedure 51) has so many holes it resembles a piece of Swiss cheese. State Bar prosecutors technically could charge misconduct that is, at this time, seven years stale.

Malpractice guru Ron Mallen uses a hypothetical situation with a client owing $15,000 and extrapolates the immense cost, including defense costs, lost time, payment of the deductible and potential premium increase. Considering the overwhelming emotional distress of litigation, it's just not worth it. Just imagine having your deposition taken and then participating in a jury trial, in which you are the defendant. As lawyers, we should not be playing with guns, unless of course, we want to shoot ourselves in the foot.

Diane Karpman specializes in lawyer law. She can be reached at 310/887-3900 or karpethics@aol.com.