California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - JANUARY 2002
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ETHICS BYTE

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Ethics lawyers work in the ER of the profession

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By DIANE KARPMAN
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Diane KarpmanYou probably think that being an ethics lawyer is like being a dermatologist.  Nothing could be further from the truth. Instead of the "ER," it's the "EE," with urgent triage. Peter Jarvis, an Oregon ethics lawyer, has said that all we do are emergencies all the time.  Don't expect to see "Ethics Emergency" on the new fall schedule.  However, I thought I would take a few moments to "share" the angst of ethics.

There are some generic "EE's."  For instance, the brand new family law attorney who calls, usually on Friday, when the partners are on the 9th hole, because the client telephoned, saying that he or she has a gun and is going to blow away the estranged spouse. This requires reconciling the hallmark duty of confidences and secrets, Business and Professions Code 6068(e), with Evidence Code 956.5. Remember, attorney-client privilege is narrowly construed, whereas confidentiality is all encompassing and includes confidences (information obtained from the client) and secrets (information obtained from other sources).

In People v. Dang, (2d Dist. Nov. 26, 2001) DJDAR 12333, the court was on the precipice of addressing this issue, but then the court appropriately limited its decision to the admissibility of testimony, because obviously the case involved privilege and a proceeding.

Remember, the Supreme Court has refused three requests in the last fourteen years to create a rule of professional conduct to clarify this issue. It is assumed that they were declining to usurp legislative prerogatives. Dang seems to rely on the American Bar Association Model Rules and General Dynamics v. Superior Court. Yet in a footnote, General Dynamics specifically rejects the applicability of the Model Rules in California. Go figure. However, the court's reliance on Evidence Code 956.5, that there is no privilege "if the lawyer reasonably believes that disclosure . . . is necessary to prevent the client from committing a criminal act . . . likely to result in death or substantial bodily harm," is unassailable, because the case involved attorney-client privilege.

Another popular "Ethics Emergency" involves the call from a lawyer that a client is about to lie or give false testimony. Lawyers should caution, admonish and attempt to persuade against it. California has unique rules regarding this in criminal practice. You can allow the client to testify in a narrative fashion, and not use the information in closing. See People v. Gadson (2d Dist. 1993) 19 Cal. App. 4th 1700.

Then there is the desperate emergency of a lawyer who absolutely must get out of a case, sometimes when it is far too late. For conflicts that may support a proper motion to withdraw, there are some interesting cases, including the always amusing and brilliant Justice Gilbert's at 66 Cal. App. 4th 1128.

Sometimes there is the forlorn voice of an attorney who inadvertently wrote a check against insufficient funds in the trust account. Other times, they plead, "the FBI is in the outer office and they want all the files." Be certain to ask for a special master.

So, you thought we don't get our hands dirty, and simply sit in ivory towers. Make no mistake, we are toiling in the trenches - just like you.