Ethics update
By Katie Allen
This feature highlights recent developments in the area of attorney professional
responsibility.
CALIFORNIA STATUTES (Unlawful Practice of Law) Business and Professions
Code §6126.3
New Business & Professions Code §6126.3 details the California courts’ authority
to address unlawful practice of law by assuming jurisdiction over the law practice
of a person who advertises or holds himself or herself out as practicing or
entitled to practice law without being an active member of the State Bar. A
court’s action to assume jurisdiction would not preclude any criminal
penalties or any contempt proceedings available under existing law for unlawful
practice of law activities.
CASE LAW (Conflicts; Attorney-Client Privilege; Malpractice) City
and County of San Francisco v. Cobra Solutions Inc. (2006) 38 Cal.4th
839 [43 Cal. Rptr.3d 771]
A lawyer actively involved in the representation of a corporation left private
practice after being elected as city attorney. When the city attorney discovered
that his office was involved in a matter related to his former client corporation,
an ethical wall was erected to screen him from the case.
Despite the steps taken to screen the city attorney, the former client corporation
moved to disqualify the city attorney and also the entire city attorney’s
office. The trial court granted the motion and the court of appeal affirmed.
Upon review, the Supreme Court of California found that the city attorney
and his office were properly disqualified from representing the city in the
matter related to the city attorney’s former representation of the corporation.
The court reasoned that the city attorney’s office might be influenced
by the city attorney’s prior representation. It concluded that vicarious
disqualification is necessary when the conflicted lawyer is the head of the
office who occupies a unique position as the person ultimately responsible
for office policy and operations.
People v. Navarro (2006) 138 Cal.App.4th 146 [41 Cal.Rptr.3d
164]
An attorney advises family members and then learns that they are involved
in a car theft ring. The attorney reports this information to the police, including
information on the location of evidence implicating her clients. Based on the
provided information, the police obtain a search warrant and find evidence
that ultimately leads to charges and a conviction.
In seeking to quash the search warrant and suppress the evidence, the defendants
alleged that since their attorney acted as an informant by divulging incriminating
information to the police, the attorney-client privilege was breached. The
California Court of Appeal found that an in camera hearing was sufficient to
protect any privileged information and that the search warrant should not be
quashed because no police misconduct occurred in procuring the information.
Slovensky v. Friedman (2006) 142 Cal.App.4th 1518
[49 Cal.Rptr.3d 60]
Attorneys represented a client in a toxic mold personal injury suit against
an apartment complex. Although the client experienced symptoms of toxic
mold exposure and had significant mold damage in her apartment, she hired her
attorneys only after the statute of limitations had expired. Attorneys misrepresented
to their client that her case was being considered on an individual basis when
in reality attorneys represented 41 other plaintiffs in similar actions against
the apartment complex.
Attorneys applied pressure tactics and eventually convinced their client to
settle. Later, client responded by filing a tort action against her former
attorneys alleging legal malpractice and a breach of fiduciary duty.
Defendant attorneys moved for summary judgment on the basis that the client
was not damaged by the defendant’s actions because defendants obtained
a substantial recovery in a matter that was time-barred. The summary judgment
motion was granted. On appeal, the judgment was affirmed. The court reasoned
that the absence of the requisite damages element was fatal to the plaintiff’s
tort claims.
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