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.