REGULARS

ETHICS BYTE

2 new rulings send litigators back to basics

Litigators are a different breed of animal. They are separate and apart from all the other species that inhabit lawyer-land. In trial, there is no time or space, nothing but the laser-like focus on winning the case. Because of this, litigators sometimes forget the basics and cross over the line, resulting in all kinds trouble.

For instance, in a recent case which demonstrates emerging issues of liability exposure to the opposing party, an appellate court determined that a firm could be sued for the invasion of privacy. The court held that our gargantuan security blanket articulated in the litigation privilege (Civil Code §47) that we believe blesses anything remotely relating to a trial, amazingly, did not protect the attorney. In Jeffrey H. v. Imai, Tadlock & Keeney (2000) 85 Cal. App. 4th 345, a garden variety automobile personal injury case, the copy company inadvertently delivered to the attorney confidential medical records involving a positive HIV test. 

Subsequently, in a letter returning "some" of the private documents, the lawyer stated that he did not believe that he had any other documents. He said, "If I subsequently locate any such documents, I will forward them to you." Well, will wonders never cease! Somehow, some of those pesky documents appeared in the arbitration exhibits.

In Bryan v. Bank of America (Jan. 12, 2001) 86 Cal. App. 4th 185, a case involving the client's right of confidentiality (and the lawyer's attempt to protect that core value), the lawyer's client became delusional and disappeared. The lawyer filed for a continuance in the court of appeal to preserve the client's case. He believed that the duty of confidentiality prevented disclosure of his client's situation. The attorney, therefore, justified checking the box which indicated that his client had been notified of his request for continuance in filing the opening brief.

The attorney believed this presented an ethical dilemma. If he withdrew, his client would lose her cause of action. Yet to proceed was a violation of Rule of Professional Conduct 5-200 (Trial Conduct), mandating honesty and candor to the court. So, he fell on his sword and tried to protect his client.

However, other documents were also filed in the case. These falsely represented, under penalty of perjury, that opposing counsel had been notified, on a "rush basis" (is there any other basis in a law office?), by none other than the proverbial paralegal. "The presiding justices who rule on such motions are obliged to assume the honesty and accuracy of such declarations, which are commonly submitted by officers of the court . . . ."

The court held that we cannot "foist off responsibility on a paralegal." So be mindful, that old paralegal "fall back" version of the more common "the dog ate my homework" excuse is toast.