Show biz and conflicts cases go hand in hand

By Diane Karpman

Karpman

In two new cases of first impression (that the court hopes will make a “lasting impression”), we can see that once again, our California conflicts cases are uniquely driven by the entertainment industry or “show business.” As California Court of Appeal Justice Arthur Gilbert writes in concurrence in Jesse James Hollywood v. Superior Court of Santa Barbara, 2006 Cal. App. LEXIS 1545, “The prosecution of criminal cases and entertainment enterprises are best kept separate.” Considered in light of these two cases from the Santa Barbara District Attorney’s Office, that is an understatement.

Both matters involve currently pending cases, a critical consideration. Civil lawyers are well aware that current clients are owed more loyalty, whereas former clients are primarily owed confidentiality. Currently pending cases, in either the criminal or civil context, always require greater sensitivity and discretion.

In Haraguchi v. Superior Court, 2006 Cal. App. LEXIS 1543, a prosecutor wrote an energetic novel about a lady DA prosecuting a “rape by intoxication” case, while she just happened to be prosecuting a rape by intoxication case. Of course, writers are always told, “write what you know,” and lawyers have free speech, but you must be prudent with pending cases. Obviously, the accused might question the prosecutor’s objectivity when the antagonist in the novel is labeled a despicable dirt bag and a heartless bastard who is “felony ugly.” The court cleanly laid out the conflict, that a negotiated settlement of the case without media hoopla is antithetical to the sale of her book, which she was actively promoting at book signing parties. “No current public employee should be permitted to exploit his or her official position as a lever to earn extra private income.” Although the court limited her disqualification to this particular case, it is unclear why the reasoning would not apply more broadly to similar situations, at least other “rape by intoxication cases.”

In Hollywood v. Superior Court, yet another Santa Barbara DA became intertwined with the media, giving his entire file to the filmmakers. Then he (guess what?) shamelessly wrote a film about the case. “As far as we know, no prosecutor has ever been a consultant (even without pay) to a film director on a pending criminal case that he or she is prosecuting.”

In both cases, the court suggested that the conduct of the prosecutors could infect the jury pool. However, things are not that black and white. Prosecutors assist the TV show, “America’s Most Wanted,” and other programs.

Several years ago, the Santa Barbara DA retained a public relations firm during a sensational case. However, the entire DA’s office was not disqualified, in part because there is now a newly elected DA.

Regarding criminal law, a fun read is the best seller, Lincoln Lawyer, by Michael Connelly. A criminal defense lawyer tools around the San Fernando Valley, practicing law out of the back of his Lincoln Town Car. The protagonist seems to be just a heartbeat away from State Bar prosecution. Read it and you can sigh with vicarious relief.

• Diane Karpman, a legal ethics expert, can be reached at 310-887-3900 or at karpethics@aol.com.