 Certain words have entirely different meanings in various areas of
law, especially in ethics and discipline. The disciplinary reports in the legal press, by
far the most widely read, consistently demonstrate this. Everybody wants to see how former
classmates are doing, or if that obnoxious opposing counsel received karmic justice. For
example, the term “wilful” in a State Bar decision means that the event
occurred, with or without the intention ascribed to the same term in criminal law. Zitny
v. State Bar (1966) 64 Cal. 2d 787. Then there is the mystifying idea of “moral
turpitude.” When used in a disciplinary decision, it can be consistent with Prosser’s
definition (heinous, base, vile) or gross negligence showing a breach of fiduciary duties
like failure to supervise staff. Vaughn v. State Bar (1972) 6 Cal. 3d 847.
Then there are words that we all assume we understand, such as “special
appearance,” which was one of the last vestiges of “lawyer to lawyer”
civility. In an emergency, lawyers would telephone a friend (or even opposing counsel) and
request that they make a special appearance as a courtesy.
This notion was recently dealt a stunning blow in Streit v. Covington
& Crowe, 2000 Cal.App. LEXIS 578, 98 Cal. Rptr. 2d 193. The Fourth District Court of
Appeals determined that even one “special appearance” could impose legal
malpractice liability on that “just doing a favor for a friend” lawyer. The
court maintained that such an appearance is a “distinction only of degree, not of
kind.” It asserted that it is tantamount to an association on the entire case, which
creates an attorney-client relationship, the predicate to maintain a cause of action for
legal malpractice. So, this everyday courtesy
is over. To assume the obligations inherent
in a duty of care to an unknown client of potentially unlimited scope, just to do someone
a favor, is beyond the expectations of mere lawyers.
As the concurrence maintained, this decision “is likely to cause
substantial concern in the legal community.” An understatement to say the least,
since the decision is sending shock waves throughout the state. We all thought that such an appearance was a
gracious custom, extended by one officer of the court to another.
Obviously, this case will have a serious impact on contract
attorneys, those “hired strangers” who make special appearances in remote areas
for limited purposes. Now we can all schlep throughout the state on the most de minimis,
inconsequential appearance, because no one can afford to extend this service.
The court balances the rights of the client “against the
attorneys’ convenience,” and — surprise, surprise — determined that
client protection is of paramount importance. Then, to add insult to injury, the court
suggested that the “scope” of representation can be limited. As if in
emergencies we have the luxury of finding our clients to obtain their signatures on
limited scope agreements.
At some point, courts must realize that the cost of increasing legal
obligations and liabilities are passed on to the consumer. Let us remember this case when
the public bemoans the high cost of legal fees.
 Diane Karpman can be reached
at 310/887-3900 or karpethics@aol.com.
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