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End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


California Legal Ethics

III. ADVOCATE

3.1   Rule 3.1 Meritorious Claims and Contentions

3.1:100   Comparative Analysis of CA Rule

¥ Primary California References: CRPC 3-200, B&PC ¤ 6068(c)
¥ Background References: ABA Model Rule 3.1, Other Jurisdictions
¥ Commentary:

3.1:101      Model Rule Comparison

MR 3.1 sets forth fundamentals with respect to a lawyer's taking a legal position on behalf of any client. At a minimum, the lawyer needs (1) a non-frivolous basis and (2) a good faith argument for any proposed change in the law. (One exception to these fundamentals applies, as discussed below). This rule describes the boundary between zealous representation and abuse of legal procedure. The MR 3.1 Official Comment recognizes that the boundary cannot be a "bright-line," due to the murky and ever-changing requirements of the law.

A California lawyer may maintain only such actions as are "legal or just," except when defending criminal actions, see B&PC ¤ 6068(c), and "must not encourage either the commencement or continuance of an action or proceeding for any corrupt motive of passion or interest." CRPC 3-200 precludes a lawyer from accepting or continuing employment if he "knows or should know" that the object of employment is either (1) to bring an action, conduct a defense, assert a position, or take an appeal "without probable cause and for the purpose of harassing or maliciously injuring any person," or (2) to present a claim or defense "not warranted by existing law, unless it can be supported by a good faith argument for an extension, modification or reversal of existing law."

MR 3.1 recognizes an exception for criminal defense counsel whose clients are facing the possibility of incarceration. In such an instance, counsel may provide a defense requiring that every element of the prosecution's case be established. Likewise, B&PC ¤ 6068(c) recognizes that a "legal and just" position may not be possible when putting forth a criminal defense.

3.1:102      Model Code Comparison

EC 7-4, like CRPC 3-200, requires a good faith argument for a change in the law; however, EC 7-4 does not articulate a standard of conduct. EC 7-4 prevents a lawyer from taking a frivolous litigation position; however, EC 7-4 expressly allows the assertion of any permissible construction of the law without regard to the lawyer's opinion as to whether the position will ultimately prevail. Although CRPC 3-200 contains no such provisions, there is no reported interpretation to the contrary.

DR 7-102(A)(1) and DR 7-102(A)(2), set in the context of ongoing representation of a client, are similar to CRPC 3-200 except that the reasonable person "should know"/"when it is obvious" standard is not stated in the fundamental rule in DR 7-102(A)(2) against advancing a position which is unwarranted under existing law. A lawyer's violation of DR 7-102(A)(2) of the Model Code occurs only when "knowingly" advancing an unsupported position without a good faith argument for a change in the law. The "should know" requirement of CRPC 3-200 implies that an objective standard of a reasonable lawyer's knowledge applies.

The provisions of DR 2-109 govern acceptance of employment and parallel the provisions of CRPC 3-200 except that, on its face, CRPC 3-200 appears to be more specific. DR 2-109 prohibits advocating a position merely for the purpose of harassing or maliciously injuring a person, while CRPC 3-200 prohibits advocating a position without probable cause and for the purpose of harassing or maliciously injuring a person. The wording of CRPC 3-200 seems to indicate that it might be possible to maintain a position which by happenstance harasses and maliciously injures, as long as probable cause for the position exists. However, Civ. Proc. Code ¤ 128.5 authorizes the imposition of sanctions on lawyers for bad faith tactics that are frivolous, and defines "frivolous" to mean totally and completely without merit or for the sole purpose of harassing an opposing party. [See 3.1:200 Non Meritorious Assertions in Litigation, infra; 3.1:300 Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11), infra]. Although Civ. Proc. Code ¤ 128.7 supersedes Civ. Proc. Code ¤ 128.5 as to actions filed on or after Jan. 1, 1995, barring any legislative action, the law will revert back to the requirements of Civ. Proc. Code ¤ 128.5 on Jan. 1, 1999. [See 3.1:300 Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11), infra for further discussion].

EC 7-14 and DR 7-103 are specific to public prosecutors and government lawyers. While EC 7-14 recognizes the imbalance of economic power of government lawyers, its language only recommends (e.g. "should refrain," "should not use his position") against unfair litigation. DR 7-103, however, prohibits instituting criminal charges without probable cause and sets forth an affirmative duty to disclose mitigating evidence. There are no specific California counterparts to these provisions.

3.1:200   Non-Meritorious Assertions in Litigation

¥ Primary California References: CRPC 3-200, B&PC 6068(c), Civ. Proc. Code ¤ 391 et seq.
¥ Background References: ABA Model Rule 3.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:101, ALI-LGL ¤ 170, Wolfram ¤ 11.2

A basic tenet set forth in California law governing the conduct of lawyers is that frivolous legal positions without merit are unacceptable. For example, under B&PC ¤ 6068(c), a lawyer has a duty to bring only "legal or just" claims or defenses (except in the defense of criminal actions). This concept is reinforced by CRPC 3-200 which prohibits taking a legal position which the lawyer knows or should know is (1) without probable cause and for the purpose of harassing or maliciously injuring any person or (2) against the law (i.e. "frivolous"), unless supported by a good faith argument for a change in the law. Thus, all attorneys are held to the "reasonable attorney" standard of conduct when it comes to taking a legal position.

A delicate balance exists between the prohibition against frivolous claims and the promotion of zealous advocacy. Courts have recognized that "[w]hile abuse of the judicial process is never to be condoned or tolerated, '...public policy also favors the principles of zealous representation and freedom of access to the courts. [citation]' Grindle v. Lorbeer (2nd Dist. 1987) 196 Cal.App.3d 1461, 1467, 242 Cal.Rptr. 562. To this end, "'...an attorney needs only a reasonable and honest belief in the viability of each theory and the evidence supporting that theory, not a conviction his client will prevail, to justify filing a claim or defense [citation.]'" Id. at 1467, 1468. To hold the contrary to be true would have an undesirable chilling effect on trial advocacy and would ultimately harm the public by unreasonably forcing lawyers to abandon or refuse to accept legitimate cases where the evidence in their favor is debatable." Talavera v. Nevarez (Cal. Super. 1994) 30 Cal.App.4th Supp. 1, 6, 35 Cal.Rptr.2d 402.

Probable Cause and Proper Purpose

CRPC 3-200 prohibits the acceptance or continuance of representation when there is no probable cause for advocacy and when the purpose of the advocacy is to harass or maliciously injure another person.

Probable cause for asserting a position will be determined by a "reasonable attorney" standard. While a lawyer need not accurately anticipate the ultimate outcome of uncertainties in the law, professional competence is required. "[A] lawyer is expected to possess knowledge of those plain and elementary principles of law which are commonly known by well-informed attorneys, and to discover those additional rules of law which, although not commonly known, may be readily found by standard research techniques." Metzger v. Silverman (Cal. Super. 1976) 62 Cal.App.3d Supp. 30, 39, 133 Cal.Rptr. 355.

The motivation for having taken the position in question will also be evaluated.

The following comments are taken from Karpman & Margolis pg. 36 with certain conforming changes:

Harassment need not be the sole motive for an attorney's actions in order to violate this rule. It is enough if the attorney is motivated "in large measure" by spite and vindictiveness. Sorensen v. State Bar (1991) 52 Cal.3d 1036, 277 Cal.Rptr. 858, 804 P.2d 44 (lawyer disciplined for filing complaint for fraud and seeking over $14,000 in punitive damages from a court reporting service in order to redress a $45 billing dispute.)

Good Faith Required

Another way to violate CRPC 3-200 is to advocate a position contrary to established law without a good faith argument for changing the law. "Good faith," like "probable cause," is evaluated under the reasonable attorney standard.

The mere fact that plaintiff's claim lacked precedential support is not the equivalent of a finding that the action was frivolous. But the converse is equally true. The mere absence of a judicial construction does not by itself make all challenges arguably meritorious.

Bach v. McNelis (3rd Dist. 1989) 207 Cal.App.3d 852, 878, 255 Cal.Rptr. 232 (citation omitted).

Frivolous

First, the obvious extreme: malicious, duplicative lawsuits, including actions involving civil and criminal complaints against a District Attorney, four state court judges, and the Chief Justice of the California Supreme Court violate the California rules and disciplinary rules of the ABA code and are frivolous. See Standing Committee on Discipline of U.S. Dist. Court for Southern Dist. of California v. Ross (9th Cir. 1984) 735 F.2d 1168.

"Frivolous" is defined in Civ. Proc. Code ¤ 128.5 as totally and completely without merit or for the sole purpose of harassing an opposing party.

In the context of appeals, courts have specifically made an attempt to delineate the concept of "frivolousness."

The following comments are taken from Karpman & Margolis pages 36 and 37 with certain conforming changes:

Two tests must be met if an appeal is to be determined "frivolous": (1) a subjective standard--is the appeal prosecuted in bad faith, or for an improper motive, such as to harass or solely to delay; and (2) an objective standard--when any reasonable attorney would agree the appeal is totally and completely without merit. The latter "objective" test requires the attorney, before bringing an appeal, to engage in reasonable legal research to determine whether any colorable argument can be made. The evaluation must be made on the basis of law that is available at the time the decision to appeal must be taken. In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183 Cal.Rptr. 508, 646 P.2d 179.

***

Counsel have the right to present issues on appeal that are arguably correct even if they are extremely unlikely to win. An appeal is not considered frivolous if (1) it presents a unique issue not indisputably without merit, (2) involves facts not amenable to easy analysis, or (3) makes a reasoned argument for extension, modification, or reversal of existing law. Summers v. City of Cathedral City (4th Dist. 1990) 225 Cal.App.3d 1047, 275 Cal.Rptr. 594.

Vexatious Litigants

Lawyers who act as their own counsel face additional prohibitions against frivolous litigation. For example, Civ. Proc. Code ¤ 391 et seq. governs actions brought by vexatious litigants. A vexatious litigant is a person (including a lawyer) acting in pro per who "repeatedly files unmeritorious motions, pleadings or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." In such cases, the Civ. Proc. Code makes procedures available which, if followed, may require the vexatious litigant to post security in order to maintain the action, and to seek "pre-approval" by the court of any future litigation pursuant to a pre-filing order. These statutory provisions have been judicially reviewed and upheld. See Wolfgram v. Wells Fargo Bank (3rd Dist. 1997) 53 Cal.App.4th 43, 61 Cal.Rptr.2d 694.

Duty to Withdraw

In Kirsch v. Duryea (1978) 21 Cal.3d 303, 146 Cal.Rptr. 218, 578 P.2d 935, the court specified that a withdrawing lawyer should first give his client an opportunity to agree to the withdrawal and to secure other counsel. The lawyer has an independent professional responsibility not to pursue an action that is frivolous or taken solely for purposes of delay. The lawyer has a duty to inform the client that ethical and professional standards preclude the lawyer's representation in the matter, and that the lawyer must withdraw. See Cosenza v. Kramer (1st Dist. 1984) 152 Cal.App.3d 1100, 200 Cal.Rptr. 18. "[I]t is clear that an attorney must withdraw from a case when his client demands tactics that the attorney concludes are frivolous or breach the attorney's obligation to the legal system." Young v. Rosenthal (2nd Dist. 1989) 212 Cal.App.3d 96, 260 Cal.Rptr. 369 (decided with the benefit of CRPC 3-700 having become effective, but interpreting its predecessor, former CRPC 2-111 (1979) in effect at the time in question). CRPC 3-700(C) permits a request for withdrawal if the client insists on taking a frivolous legal position. If the bar member "knows or should know that continued employment will result in violation of ... [the] rules or of the State Bar Act," then withdrawal is mandatory. CRPC 3-700(B). For further discussion of CRPC 3-700 [see Rule 1.16 Declining or Terminating Representation, supra].

3.1:300   Judicial Sanctions for Abusive Litigation Practice (Especially Rule 11)

¥ Primary California References: Civ. Proc. Code ¤¤ 128.5, 128.7, 907, 1038, 2016 et. seq., Cal. Rule of Court, 26(a)
¥ Background References: ABA Model Rule 3.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:151, ALI-LGL ¤ 170, Wolfram ¤ 11.2

In addition to disciplinary consequences, frivolous litigation may invoke a variety of other deterrents and penalties pursuant to procedural rules. The Court has the incidental power pursuant to a number of statutes to order monetary sanctions for frivolous litigation in many different litigation contexts.

Trial Court

For bad faith actions or tactics arising from a complaint filed or proceeding initiated on or before December 31, 1994, the trial court may order a party, the party's lawyer, or both to pay reasonable expenses, including attorney's fees, incurred by another party as a result of "bad faith actions or tactics that are frivolous or solely intended to cause unnecessary delay." Civ. Proc. Code ¤ 128.5(a). A bad faith action or tactic is considered "frivolous" if "totally and completely without merit" or instituted "for the sole purpose of harassing an opposing party." Civ. Proc. Code ¤ 128.5(b)(2). Sanctions under ¤ 128.5 are in addition to any other liability imposed by law. Civ. Proc. Code ¤ 128.5(e). "Section 128.5 allows compensation only for out of pocket litigation costs, including attorney fees, that directly result from the objectionable conduct; the relief cannot include consequential damages." Brewster v. Southern Pacific Transportation Co. (4th Dist. 1991) 235 Cal.App.3d 701, 1 Cal.Rptr.2d 89. However, out of pocket litigation costs may include for example, "compensation for airfare and reimbursement for lost vacation" time. Tenderloin Housing Clinic, Inc. v. Sparks (1st Dist. 1992) 8 Cal.App.4th 299, 307, 10 Cal.Rptr.2d 371. Both lawyers litigating in propria persona and non-lawyers may be awarded sanctions under ¤ 128.5. Abandonato v. Coldren (4th Dist. 1995) 41 Cal.App.4th 264, 48 Cal.Rptr.2d 429. "[S]anctions may not be ordered payable to the trial court." Kane v. Hurley (2nd Dist. 1994) 30 Cal.App.4th 859, 35 Cal.Rptr.2d 809.

There are conflicting lines of appellate authority regarding the requirement of bad faith under ¤ 128.5. A number of cases have determined that subjective bad faith is required as a prerequisite to an award of sanctions. For example, in Llamas v. Diaz (4th Dist. 1990) 218 Cal.App.3d 1043, 267 Cal.Rptr. 427, the court reviewed the legislative history of the statute and was convinced that "there must be an assessment of subjective bad faith in addition to finding a particular action or tactic was frivolous." Id. at 1047. The Court of Appeal affirmed the trial court finding that plaintiffs' action was "totally and completely without merit," but not brought in bad faith. Sanctions awarded by the trial court under ¤ 128.5 were reversed. In contrast, other cases have held that an objective bad faith standard governs ¤ 128.5. Karwasky v. Zachay (4th Dist. 1983) 146 Cal.App.3d 679, 681, 194 Cal.Rptr. 292. (a motion is frivolous and in bad faith where "any reasonable attorney would agree such motion is devoid of merit."). The courts are also divided on whether or not sanctionable conduct must be both frivolous and in bad faith. In Summers v. City of Cathedral City (4th Dist. 1990) 225 Cal.App.3d 1047, 275 Cal.Rptr. 594 the court analyzed the plain language of the statute and found that "[b]y its own terms, [¤ 128.5] authorizes the imposition of sanctions only for 'actions or tactics' which are both frivolous and in 'bad-faith'." Id. at 608. In Javor v. Dellinger (2nd Dist. 1992) 2 Cal.App.4th 1258, 3 Cal.Rptr.2d 662 the court found that since the 1985 amendment to ¤ 128.5, "there is no room to doubt that bad faith is required". Id. at 1261. The court goes on to state that "if the action was taken solely to harass or delay, it would support a finding of bad faith. If its only vice is lack of merit, it would not." Another court determined that "the use of the disjunctive in section 128.5, we think, clearly indicates that sanctions can be based either on a finding of a bad faith action or 'tactics that are frivolous or solely intended to cause unnecessary delay.'" On v. Cow Hollow Properties (1st Dist. 1990) 222 Cal.App.3d 1568, 1575, 272 Cal.Rptr. 535. This conflict in the law has been recognized in the subsequent case of Dolan v. Buena Engineers, Inc. (2nd Dist. 1994) 24 Cal.App.4th 1500, 29 Cal.Rptr.2d 903, which declares that the "better reasoned decisions decided under the current statute require a showing not only of a meritless or frivolous action or tactic, but also of bad faith in taking the action or tactic." Id. at 1506. As a result of the enactment of ¤ 128.7 (discussed below), ¤ 128.5 has been effectively suspended. See Trans-Action Commercial Investors, Ltd. v. Jelinek (1st Dist. 1997) 60 Cal.App.4th 352, 70 Cal.Rptr.2d 449, 1997 WL 789952.

¤ 128.5 was enacted in 1981. Subsequently, in 1983, FR 11 was amended. As a result, in 1987 and 1993, the California legislature enacted virtually identical, short-term pilot projects in two counties, where mandatory sanctions would be imposed for a lawyer's failure to certify that his or her pleadings are "well grounded in fact" and the legal arguments contained therein are "formed after reasonable inquiry" and based on existing law or a good faith argument for the extension, modification or reversal of existing law. These pilot projects were consistent with the then-existing provisions of FR 11. FR 11 was revised in December 1993 as well. These revisions had the substantive effect of:

a) Retaining the "reasonable inquiry" requirement to make litigants "stop-and-think" prior to filing pleadings.

b) Emphasizing the duty of "candor" by requiring abandonment of a factual contention or argument after it is no longer "tenable." c) Providing for "tolerance of factual contentions in initial pleadings," but imposing a continuing obligation to conduct a reasonable investigation and (as suggested by the rule of "candor") to withdraw an issue from contention if the lawyer learns that the contention lacks evidentiary support.

d) Permitting creative "objective" legal arguments, but not "empty-head, pure heart arguments" by moderating the standard for filing pleadings. Requiring that claims must be "warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Disallowing monetary sanctions as an award for a violation.

e) Discouraging use of monetary sanctions paid to the other party except as "warranted for effective deterrence." AB 3594 expresses the policy using nonmonetary and monetary sanctions to deter violations.

f) Allowing sanctions to be awarded against the offending practitioner's firm. This provision is intended to overturn the contrary United States Supreme Court decision in Pavelic & LeFlore v. Marvel Entertainment Group (1989) 493 U.S. 120, 107 L.Ed.2d 438, 110 S.Ct. 456.

g) Creating a 21-day "safe-harbor" which provides the litigant that time period to withdraw or correct a contention or argument after the potential violation is called to their attention. If withdrawn or corrected, sanctions would not be assessed.

h) Requiring sanctions motions to be filed independently and not (as now) included in other pleadings.

i) Permitting the prevailing party in the sanctions motion to be awarded attorney's fees and costs. (This limited introduction of the "English Rule" may discourage frivolous sanctions motions which were sometimes brought under former FR 11. The award to the prevailing party is permissive, not mandatory).

California Committee Analysis, Statenet, Senate Committee on Judiciary hearing August 16, 1994, AB 3594 (Weggeland).

In 1994, AB 3594 (Weggeland) was approved by the Governor. In its final form, it repealed Civ. Proc. Code ¤ 128.5 as to actions filed after December 31, 1994, and adopted FR 11 by enacting Civ. Proc. Code ¤ 128.7. However, opponents of the bill had argued that because the 1993 revisions to FR 11 were so new, they were untested, and wholesale adoption was premature. This argument was partially successful, in that a compromise approach was taken. The bill as enacted provides that on January 1, 1998, the Judicial Council will report to the Legislature on the nature and frequency of sanctions motions and sanctions imposed. (As of February 15, 1998, the Judicial Council had not completed preparing its report, but expected to finish in mid-March). In addition, a sunset provision was incorporated so that, barring any additional legislative action, on January 1, 1999, the law will revert back to the requirements of ¤ 128.5 (under a new section, Civ. Proc. Code ¤ 128.6).

At present, ¤ 128.7 applies "to a complaint or petition filed on or after January 1, 1995, and any other pleading, written notice of motion, or other similar paper filed in such a matter," see Civ. Proc. Code ¤ 128.7(i) and filed before January 1, 1999. ¤ 128.7 requires that papers filed with the court must be signed by an attorney. The signature warrants that to the best of the signing attorney's knowledge, and based on a reasonable inquiry, the paper (1) is not frivolous (not filed to harass or cause unnecessary delay or needless increase in the cost of litigation), (2) is supported by existing law or good faith argument for a change in the law, (3) will likely be supported by evidence gathered during reasonable discovery period, and (4) that any factual contentions are based on evidence or lack of information and belief. A violation of any part of ¤ 128.7 may subject the responsible lawyers, law firms, or parties to sanctions. Sanctions sufficient to deter repetition of the violation may be imposed at the discretion of the trial court either as a result of a motion for sanctions or on the Court's own initiative. Sanctions (subject to certain limitations) may consist of nonmonetary directives, an order to pay a penalty to the court, or an order for attorneys' fees and expenses as a result of the violation. Specifically, ¤ 128.7 allows a fee award limited to "some or all" of the fees "incurred as a direct result of the violation," as long as the award is "warranted for effective deterrence." However, sanctions can only arise from pleadings or other filings (not discovery), and the party facing sanctions has a 30-day grace period after being served with the sanctions motion to withdraw or amend the filing in question.

Appeals

Civ. Proc. Code ¤ 907, which governs appeals, states that when the reviewing court believes that the appeal was "frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." The standards for making this determination are set forth in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649-650, 183 Cal.Rptr. 508, 646 P.2d 179, as follows: "an appeal should be held to be frivolous only when it is prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment--or when it indisputably has no merit--when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation]". The sanctioning court must set forth a recitation of the facts justifying sanctions, so that a reviewing court can evaluate any subsequent "abuse of discretion" claims on appeal. For example, a municipal court order which sanctioned a lawyer for pursuing a frivolous appeal in order to delay the litigation, but failed to explain the statutory authority for awarding sanctions or rationale for its findings, could not be used as a basis for imposing discipline against the lawyer in a State Bar proceeding for having pursued an appeal "in bad faith." In the Matter of Respondent D (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 517.

Cal. Rule of Court 26(a) states that "[w]here the appeal is frivolous or taken solely for the purpose of delay ... the reviewing court may impose upon offending attorneys or parties such penalties, including the withholding or imposing of costs, as the circumstances of the case and the discouragement of like conduct in the future may require." The "facts surrounding the appeal and the effect of the delay" are to be considered in determining the amount of sanctions. Simonian v. Patterson (2nd Dist. 1994) 27 Cal.App.4th 773, 787, 32 Cal.Rptr.2d 722. Sanctions for a frivolous appeal are to deter future frivolous litigation, reimburse the taxpayers for the expense incurred, and are reported to the State Bar as required in B&PC ¤ 6086.7(c). See Collisson & Kaplan v. Hartunian (2nd Dist. 1994) 21 Cal.App.4th 1611, 26 Cal.Rptr.2d 786.

In determining the "damages as may be just" the court may impose sanctions on the petitioner, the law firm representing petitioner, and the firm's individual partners. In addition, sanctions payable to the Court Clerk may be assessed. Young v. Rosenthal (2nd Dist. 1989) 212 Cal.App.3d 96, 260 Cal.Rptr. 369.

Discovery

In addition to monetary sanctions, the court may impose evidence and issue sanctions as a result of the misuse of the discovery process. For example, see Civ. Proc. Code ¤ 2016 et seq.; Vallabona v. Springer (4th Dist. 1996) 43 Cal.App.4th 1525, 51 Cal.Rptr.2d 311. However, sanctions under the Civil Discovery Act (Civ. Proc. Code ¤ 2016 et seq.) do not require the trial court to make explanatory written findings, as required under Civ. Proc. Code ¤ 128.5. Mattco Forge, Inc. v. Arthur Young & Co. (2nd Dist. 1990) 223 Cal.App.3d 1429, 273 Cal.Rptr. 262.

3.1:400   Civil Liability for Abusive Litigation Practice [see also, 1.1:500]

¥ Primary California References: Civ. Proc. Code ¤ 1209
¥ Background References: ABA Model Rule 3.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:101, ALI-LGL ¤¤ 77, 170, Wolfram ¤ 11.2

Contempt

"[T]he power of the court to punish for acts of contempt is separate and distinct from the powers of the trial court to sanction attorneys" under Civ. Proc. Code ¤ 128.5. In re Marriage of Gumabao (2nd Dist. 1984) 150 Cal.App.3d 572, 198 Cal.Rptr. 90. Civ. Proc. Code ¤ 1209 provides that a "willful neglect or violation of duty by an attorney" constitutes contempt of the authority of the court. For example, a lawyer has a duty to punctually appear in court and continue with trial in progress, and not delay for a personal matter reasonably within his control. Violations of this duty may subject the attorney to imprisonment for contempt. See Lyons v. Superior Court (1955) 43 Cal.2d 755, 278 P.2d 681.

Tort Liability

The California Supreme Court has recognized that statutory sanctions provide "the most promising remedies" for curbing frivolous litigation; however, tort liability can also arise from a maliciously instituted lawsuit. In order to establish a cause of action for malicious prosecution, a plaintiff must show that the prior action was brought (1) by defendant, and legally terminated in plaintiff's favor; (2) without probable cause; and (3) with malice. Defendant's subjective belief in the legal merits of the claim and the extent of defendant's investigation and research is only relevant to the question of malice. "Probable cause" requires a trial court determination as to whether, on the basis of facts known to the defendant, a reasonable attorney would have thought the institution of the prior action was objectively reasonable. See Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 254 Cal.Rptr. 336, 765 P.2d 498. However, if there are no "disputed facts concerning the record in the underlying action ... the [defendant] attorney's knowledge is entirely irrelevant." Hufstedler, Kaus & Ettinger v. Superior Court (Mann) (2nd Dist. 1996) 42 Cal.App.4th 55, 49 Cal.Rptr.2d 551.

An action for malicious prosecution may arise in retaliation for the pursuit of actions with malice and without probable cause. In Crowley v. Katleman (1994) 8 Cal.4th 666, 8 Cal.4th 1236B, 34 Cal.Rptr.2d 386, 881 P.2d 1083, the California Supreme Court held that an action charging multiple grounds of liability where at least one of those actions was asserted with malice and without probable cause will give rise to a valid claim for malicious prosecution. It further held that the court's power to impose sanctions for frivolous conduct (then pursuant to Civ. Proc. Code ¤ 128.5) is not a substitute for a malicious prosecution action. A plaintiff who pleads and proves a case of malicious prosecution may recover attorney fees, litigation costs, and, if justified, a significant amount of compensation for injury to his reputation and emotional distress.

Legal Malpractice

In Kirsch v. Duryea (1978) 21 Cal.3d 303, 146 Cal.Rptr. 218, 578 P.2d 935, a lawyer faced the choice between the duty to advance the client's cause, and the duty to refuse to maintain actions lacking merit. The lawyer decided to withdraw from a medical malpractice case that he believed lacked merit. The lawyer was sued for legal malpractice, with one of plaintiff's assertions based on improper withdrawal. Judgment for the plaintiff was reversed. Holding that the withdrawal was reasonable, even if mistaken in retrospect, the court stated:

When apparent conflict exists between the attorney's duty to his client on the one hand and his public obligation on the other, it is not sufficient to show that some or many prudent attorneys would not have made the mistake. The attorney's choice to honor the public obligation must be shown to have been so manifestly erroneous that no prudent attorney would have done so.

Id. at 309.

3.1:500   Complying with Law and Tribunal Rulings

¥ Primary California References: B&PC ¤¤ 6103, 6068.7, 6078
¥ Background References: ABA Model Rule 3.1, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 16:1201, ALI-LGL ¤ 165, Wolfram ¤¤ 12.1.3, 13.3.7

Disbarment or Suspension

B&PC ¤ 6086.7 requires a court to notify the State Bar of any order of contempt imposed against a lawyer, any modification or reversal of a judgment due, in whole or in part to the misconduct of a lawyer, and most sanctions (unless for failure to make discovery or less than $1,000). Thereafter the State Bar shall investigate and determine whether disciplinary action against the lawyer is warranted.

B&PC ¤ 6078 gives the Board of Governors the power, after a hearing, to recommend to the Supreme Court the disbarment or suspension from practice of members who have violated any state laws warranting disbarment, suspension or discipline. The board can also discipline bar members. B&PC ¤ 6103 provides that any violation of the duties of a lawyer, see B&PC ¤ 6068 constitutes cause for disbarment or suspension. Therefore, any violation of the Business and Professions Code or an order of court could be grounds for disbarment, suspension or discipline. See In the Matter of Lilley (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 476.

The following excerpts are taken from Karpman & Margolis pages 169-170 with certain conforming changes:

B&PC ¤ 6068(b) Duty to Respect Courts and Judicial Officers

Mere failure to pay court-ordered sanctions, when lawyer has no personal knowledge of the sanctions, does not, in itself, support violation of this B&PC ¤ 6068(b). In the Matter of Whitehead (Review Dept. 1991) 1 Cal. State Bar Ct.Rptr. 354, 367. However, when a lawyer has personal knowledge of the entry of sanctions orders against him, does not comply with the orders, and does not take any action to seek relief from the orders, his conduct violates the statute requiring lawyers to maintain respect for the courts and to obey court orders. In the Matter of Boyne (Review Dept. 1993) 2 Cal. State Bar Ct.Rptr. 389, 403-404; Maltaman v. State Bar (1987) 43 Cal.3d 924, 951-952, 239 Cal.Rptr. 687, 741 P.2d 185 (even if the lawyer believes an order invalid, he must either obey it or appropriately challenge it. He may not simply ignore it).

A lawyer violates B&PC ¤ 6068(b) by deliberate disobedience of court orders. In the Matter of Varakin (Review Dept. 1994) 3 Cal. State Bar Ct.Rptr. 179.

3.2   Rule 3.2 Expediting Litigation

3.2:100   Comparative Analysis of CA Rule

¥ Primary California References: B&PC ¤ 6128(b)
¥ Background References: ABA Model Rule 3.2, Other Jurisdictions
¥ Commentary:

3.2:101      Model Rule Comparison

MR 3.2 specifies the required extent of a lawyer's efforts towards expediting litigation. Those efforts must be (1) reasonable and (2) consistent with the interests of the client. In California, B&PC ¤ 6128(b) makes certain actions, which by definition would not be in conformity with MR 3.2, a misdemeanor and therefore subject to criminal prosecution. It prohibits willful delay of a client's suit with a view to one's own gain. Obviously, willful delay would not be considered "reasonable efforts to expedite litigation" under the Model Rules. Likewise, while a lawyer's "own gain" is not necessarily inconsistent with the client's best interests, the rules are clearly intended to prioritize the client's interest first.

3.2:102      Model Code Comparison

DR 7-101 describes zealous representation of a client. It sets forth certain activities which a lawyer shall not intentionally fail to perform. In essence, it covers the willful delay of a client's suit with a view to one's own gain as described in B&PC ¤ 6128. It addresses this issue in a more general fashion, by prohibiting the failure to seek the lawful objectives of a client through reasonably available means permitted by law and the Disciplinary Rules, and the failure to carry out a contract of employment for professional services (absent a proper withdrawal).

DR 1-102 provides that the violation of a Disciplinary Rule or engaging in illegal conduct involving moral turpitude (among other things) constitutes misconduct.

3.2:200   Dilatory Tactics

¥ Primary California References: B&PC ¤ 6128
¥ Background References: ABA Model Rule 3.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:202, ALI-LGL ¤ 166, Wolfram ¤ 11.2.5

Dilatory tactics have been observed in a number of contexts. For example, in Silver v. State Bar (1974) 13 Cal.3d 134, 117 Cal.Rptr. 821, 528 P.2d 1157, the California Supreme Court, noted that "[a]lthough [B&PC ¤ 6128(b)] speaks in terms of 'delay,' the dismissal of a lawsuit clearly falls within the prohibition." Id. at 141 n. 3. However, dismissing a lawsuit without the knowledge of the client does not necessarily establish a violation of B&PC ¤ 6128. In order to be a violation, such dismissal must have been done with a view to the lawyer's own gain (i.e. the lawyer's own interests were placed ahead of the client's interests). In Silver, the offending lawyer entered into an agreement whereby his client's appeal would be dismissed in exchange for a quitclaim deed conveying the adverse party's right of redemption to the offending lawyer. The offending lawyer did not inform or obtain the consent of his client. The Court held this conduct to be a clear violation of B&PC ¤ 6128.

In Lester v. State Bar (1976) 17 Cal.3d 547, 131 Cal.Rptr. 225, 551 P.2d 841, the California Supreme Court reiterated its position that the "wilful failure to perform legal services for which an attorney has been retained in itself warrants disciplinary action, constituting a breach of the good faith and fiduciary duty owed by the attorney to his clients. [Citations.]" The Court further explained that an attorney's habitual disregard of his clients' interests can result in the imposition of severe disciplinary measures. Id. at 551.

Misconduct involving dilatory tactics constitutes an act of moral turpitude under B&PC ¤ 6106. See Foote v. State Bar (1951) 37 Cal.2d 127, 230 P.2d 617. In Hulland v. State Bar (1972) 8 Cal.3d 440, 105 Cal.Rptr. 152, 503 P.2d 608, the Supreme Court agreed with the State Bar Disciplinary Board which determined that a violation of B&PC ¤ 6128 amounted to moral turpitude. Lawyer Hulland had refused to conclude divorce proceedings for his client in order to compel his client to turn over an income tax refund check for payment of his fees (which amounted to approximately $400.00). Public reprimand was the ordered discipline, and the Court determined that its "opinion shall constitute such reprimand."

In Wren v. State Bar (1983) 34 Cal.3d 81, 192 Cal.Rptr. 743, 665 P.2d 515, the lawyer (who had no prior disciplinary record) was given a two year suspension, the execution of which was stayed and was placed on conditional two year probation for several professional conduct violations. One violation was the failure to use reasonable diligence to accomplish with reasonable speed, the prosecution of his clients' claim. The lawyer was put on retainer in December, 1977, and still had not filed his clients' complaint by February 1979, when his client finally went to the State Bar. The lawyer initially appeared before the Review Department of the State Bar Court, which recommended the suspension/probation. Once this recommendation was made, the lawyer sought review, but was unable to meet "the burden of showing the findings are not supported by the evidence or are otherwise improper," including demonstrating "that the charges of unprofessional conduct are not sustained by convincing proof and to a reasonable certainty." Id. at 90. This showing is a requirement to refute the findings of the State Bar.

3.2:300   Judicial Sanctions for Dilatory Tactics

¥ Primary California References: Civ. Proc. Code ¤ 128.5
¥ Background References: ABA Model Rule 3.2, Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:202, ALI-LGL ¤ 166, Wolfram ¤ 11.2.5

California law provides for sanctions in instances where "bad faith actions or tactics [] are frivolous or solely intended to cause unnecessary delay." [See 3.1:300 Judicial Sanctions for Abusive Litigation Practice, supra]. Cases in which sanctions have been considered under that portion of Civ. Proc. Code ¤ 128.5 specifically addressing delay include, for example, O'Brien v. Cseh (2nd Dist. 1983) 148 Cal.App.3d 957, 196 Cal.Rptr. 409, where sanctions of $150 for failure to appear at a hearing were granted and ultimately reversed. In O'Brien, a lawyer who failed to appear at trial despite representations by his office that he would be in court, was ordered to pay attorney's fees as sanctions under Civ. Proc. Code ¤ 128.5. The lawyer knew of his inability to appear, and had a chance to, but did not notify opposing counsel. Further, the lawyer didn't adequately inform the trial court of the reasons for his delay and ultimately, did not appear. (Various procedural problems resulted in a reversal of the sanctions award).

A court may consider a lawyer's past conduct in determining whether a lawyer has engaged in impermissible dilatory tactics. Sabado v. Moraga (Schuckman) (3rd Dist. 1987) 189 Cal.App.3d 1, 234 Cal.Rptr. 249.

Civ. Proc. Code ¤ 128.7 does not apply to discovery. [See 3.1:300 Judicial Sanctions for Abusive Litigation Practice, supra]. Punishment for dilatory tactics in connection with discovery obligations is provided for in Civ. Proc. Code ¤ 2016 et seq.

3.3   Rule 3.3 Candor Toward the Tribunal

3.3:100   Comparative Analysis of CA Rule

¥ Primary California References: CRPC 5-200, 5-220, 3-200, 5-210, B&PC ¤¤ 6068, 6128, 6106, 6103, 6086, Pen. Code 127
¥ Background References: ABA Model Rule 3.3, Other Jurisdictions
¥ Commentary:

The following excerpts are taken from Karpman & Margolis pages 93-98 with certain conforming changes:

Lawyers are expected to be forceful advocates for their clients' legitimate causes, but lawyers play a critical role in honest administration of justice. Lawyers, by adherence to their high fiduciary duties and the truth, can sharply reduce or eliminate clashes and ease the way to resolving disputes.

Lawyers, as officers of the court, sworn to uphold the law and with a duty of candor to the tribunal, are prohibited from knowingly allowing a client to testify falsely. A lawyer rarely knows (with certainty) that a client intends to commit perjury. Where a lawyer has such knowledge, specific obligations in terms of candor to the tribunal are triggered that may be directly opposed to the duty to maintain lawyer-client confidentiality.

A lawyer must attempt to discourage prospective client perjury. If the lawyer's attempts to dissuade the client are unsuccessful, counsel must seek to withdraw without revealing the client's confidences.

The lawyer should urge the client to rectify past perjury; if that is unsuccessful, the lawyer may seek to withdraw.

State Bar proceedings fall within the scope of CRPC 5-200.

Cases

US Supreme Court

A defendant's lawyer informed reporters that his client was a mere "scapegoat" and was arrested in order to cover up police improprieties. The lawyer was subsequently disciplined for remarks that he knew, or should have reasonably known, would have a "substantial likelihood of materially prejudicing" the trial. In a 5-to-4 decision, the Supreme Court reversed, and found the Nevada Rule of Professional Conduct vague and lacking in giving the lawyer sufficient fair notice of what can and cannot be said. Gentile v. State Bar of Nevada (1991) 501 U.S. 1030, 115 L.Ed.2d 888, 111 S.Ct. 2720.

A defense lawyer's threat to withdraw from representation and make disclosures to the court, if the client persisted in his intention to perjure himself, did not deprive the client of the effective assistance of counsel vis-ˆ-vis the Sixth Amendment of the Constitution. The client's right to counsel does not include cooperation or assistance in offering perjured testimony. Nix v. Whiteside (1986) 475 U.S. 157, 89 L.Ed.2d 123, 106 S.Ct. 988.

Cal Supreme Court

In criminal cases, when a lawyer cannot withdraw without prejudicing the defendant's case, the court may require the lawyer to remain on the case, and allow the client who intends to commit perjury to testify in a narrative manner absent the support of direct examination. The lawyer may not use the perjured information in his closing argument. The California Supreme Court held that this procedure does not violate a defendant's Sixth Amendment right to effective assistance of counsel. People v. Guzman (1988) 45 Cal.3d 915, 248 Cal.Rptr. 467, 755 P.2d 917.

A single instance of failing to appear at a debtor's examination is not an act of moral turpitude or a breach of duty. Marquette v. State Bar (1988) 44 Cal.3d 253, 242 Cal.Rptr. 886, 746 P.2d 1289.

A lawyer who benefits a client through the manipulation or use of perjured testimony may be subject to criminal prosecution (Pen. Code ¤ 127) in addition to the imposition of severe discipline. In re Branch (1969) 70 Cal.2d 200, 74 Cal.Rptr. 238, 449 P.2d 174.

Cal Courts of Appeal

A criminal defendant alleged that he was denied the effective assistance of counsel because his lawyer acceded to his request to call him and two other persons as defense witnesses even though counsel believed that their testimony would be perjurious. The court first rejected the contention that trial counsel should have refused to let the defendant testify and noted that it is well-settled that a criminal defendant has an absolute right to testify over the objection of trial counsel. The court stated that it is also well-settled that defense counsel's refusal to participate in the presentation of perjurious testimony from the accused does not deny the client effective assistance of counsel. However, the court said that neither precedent nor the CRPC states the appropriate course of action if defense counsel believes that his or her client will lie and the client insists on the right to testify. The court concluded that the "narrative approach" solution employed by the lawyer in this case reconciled the competing interests: the defendant was able to testify on his own behalf; trial counsel refrained from actively participating in the presentation of false testimony; defendant was still afforded the assistance of trial counsel; and the integrity of the adversarial system of justice was not compromised. The court also held that counsel's refusal to override the defendant's decision to call two witnesses to the stand and permit them first to testify in a narrative fashion and then to answer questions posed by the defendant did not result in constitutionally deficient representation. The court stated that counsel's actions were a reasonable attempt to solve a dilemma to which there is no clear solution. People v. Gadson (2nd Dist. 1993) 19 Cal.App.4th 1700, 24 Cal.Rptr.2d 219.

When a criminal defendant insists on committing perjury, it is ethical, proper, and necessary for counsel to seek to withdraw. However, the court may exercise its discretionary power to deny the motion where substantive evidence is lacking regarding the collapse of the lawyer-client relationship that would impair a client's right to effective assistance of counsel. People v. Brown (3rd Dist. 1988) 203 Cal.App.3d 1335, 250 Cal.Rptr. 762.

State Bar Court

Respondent was culpable of intentionally misleading the settlement conference judge where he failed to inform the judge of the defendant's death. Lawyers are required to refrain from deceptive acts without qualification. Note: this case represents a clear warning regarding puffing at Mandatory Settlement Conferences. In the Matter of Jeffers (Review Dept. 1994) 3 Cal. State Bar Ct.Rptr. 211.

Failure to disclose the applicability of the statute in obtaining the court's approval of a minor's compromise violates the lawyer's duty of candor, is an act of concealment of a material fact, and demonstrates a violation of the duty to respect courts. Respondent was entitled to urge any creative theory in good faith that the statutory fee limitation might not apply to his case, but he could not simply conceal the material fact that the fee limitation statute might apply and profit sizably thereby at the expense of his client. In the Matter of Harney (Review Dept. 1995) 3 Cal. State Bar Ct.Rptr. 266.

A misrepresentation made to a tribunal must be material, and made with intent to mislead, in order to be disciplinable. In the Matter of Farrell (1991) 1 Cal. State Bar Ct.Rptr. 490.

In order to impose discipline for subornation of perjury, there must be clear and convincing "proof of a corrupt agreement" between the witness and the lawyer. In the Matter of Hertz (1991) 1 Cal. State Bar Ct.Rptr. 456.

References

B&PC ¤ 6068(f) ("offensive personality," is applicable to comments or writings denigrating the judiciary); B&PC ¤ 6128 (a lawyer may be guilty of a misdemeanor for knowingly acting in collusion with the intent to deceive the court). Pen. Code ¤ 127 (subornation of perjury).

Martin, Perjury in civil cases. 4(12) Cal.Law. 65 (1984).

Lefstein, Client perjury in criminal cases: Still a search for an answer. 1 Ga.J.Legal Ethics 521 (1988).

Legal ethics, client perjury and the privilege against self incrimination. 13 Hastings Const. L.Q. 545.

California bar refuses to adopt proposed rule to confront client perjury. 15 Pepperdine L.Rev. 65.

Wolfram, Client perjury. 50 So.Cal.L.Rev. 809, 847 (1977) (also discusses rectification in circumstances involving past perjury).

Freedman & Starwood, Prior Restraints on Freedom of Expression by Defendants and Defense Attorneys: Ratio Decidendi v. Obiter Dictum (1977) 29 Stan.L.Rev. 607.

Analysis of duties, rights, and obligations of an attorney where the client informs the attorney that he or she intends to commit perjury. 64 ALR3d 385.

Fabrication or suppression of evidence as ground of disciplinary action against attorney. 40 ALR3d 169.

Ethics Opinions

C.O.P.R.A.C. Op. 1983-74 (client perjury in civil action; analysis of duties owed to the client and the court; discussion of withdrawal procedure).

L.A. Op. 1988-451 and L.A. Op. 1974-343 (publication by lawyer of article while case is on appeal).

L.A. Op. 1986-386 (where a lawyer has learned that a former client in a continuing case may have committed perjury, he need not call upon the client to rectify it. Also, he may not disclose it to the client's present counsel, the court, opposing counsel, or the State Bar).

L.A. Op. 1968-305 (withdrawal in circumstances involving perjured testimony).

Rule 5-200(B)

Cases

False representations or evidence presented in a State Bar proceeding constitutes serious misconduct warranting discipline. Lebbos v. State Bar (1991) 53 Cal.3d 37, 278 Cal.Rptr. 845, 806 P.2d 317; Warner v. State Bar (1983) 34 Cal.3d 36, 192 Cal.Rptr. 244, 664 P.2d 148; Davis v. State Bar (1983) 33 Cal.3d 231, 188 Cal.Rptr. 441, 655 P.2d 1276; Olguin v. State Bar (1980) 28 Cal.3d 195, 167 Cal.Rptr. 876, 616 P.2d 858; Phillips v. State Bar (1975) 14 Cal.3d 492, 121 Cal.Rptr. 605, 535 P.2d 733; Wren v. State Bar (1983) 34 Cal.3d 81, 192 Cal.Rptr. 743, 665 P.2d 515 (the imposition of discipline for submitting false testimony to a State Bar disciplinary panel); Ridley v. State Bar (1972) 6 Cal.3d 551, 99 Cal.Rptr. 873, 493 P.2d 105 (false statements offered during the investigatory phase of a State Bar inquiry); and Worth v. State Bar (1976) 17 Cal.3d 337, 130 Cal.Rptr. 712, 551 P.2d 16 (lawyer, in order to conceal misappropriation, altered or fabricated evidence).

False Pleading or Documents

A lawyer will be suspended for submitting a false pleading even though there is no evidence of malice, intentional deception, or motivation for personal gain. Giovanazzi v. State Bar (1980) 28 Cal.3d 465, 169 Cal.Rptr. 581, 619 P.2d 1005. Also, there is no requirement that actual harm must result in order to impose discipline. Garlow v. State Bar (1988) 44 Cal.3d 689, 244 Cal.Rptr. 452, 749 P.2d 1307.

See also: Dixon v. State Bar (1985) 39 Cal.3d 335, 216 Cal.Rptr. 432, 702 P.2d 590 (false declarations filed with the court); Young v. Rosenthal (2nd Dist. 1989) 212 Cal.App.3d 96, 260 Cal.Rptr. 369 (misrepresentation of a client's financial condition in a debt collection matter); Woodard v. State Bar (1940) 16 Cal.2d 755, 108 P.2d 407 (use of a false default judgment against a defendant); Weir v. State Bar (1979) 23 Cal.3d 564, 152 Cal.Rptr. 921, 591 P.2d 19 (lawyer's repeated custom of filing fraudulent applications with the Immigration and Naturalization Service justified disbarment based upon a finding that the conduct constituted moral turpitude); Snyder v. State Bar (1976) 18 Cal.3d 286, 133 Cal.Rptr. 864, 555 P.2d 1104 (in addition to a multiplicity of other violations, false allegations contained in involuntary bankruptcy petitions designed to harass and delay proceedings); Garlow v. State Bar (1982) 30 Cal.3d 912, 180 Cal.Rptr. 831, 749 P.2d 1307 (forged client signature on documents signed under penalty of perjury, coupled with a subsequent representation to the court that the signature was genuine).

Probate Issues

See Jackson v. State Bar (1979) 25 Cal.3d 398, 158 Cal.Rptr. 869, 600 P.2d 1326 (fraudulent accounting filed with the probate court); Utz v. State Bar (1942) 21 Cal.2d 100, 130 P.2d 377 (use of falsified legatee receipt, on discharge as administratrix); Vickers v. State Bar (1948) 32 Cal.2d 247, 196 P.2d 10 (lawyer falsely asserted that he was decedent's spouse in filing petition for special letters of administration); Codiga v. State Bar (1978) 20 Cal.3d 788, 144 Cal.Rptr. 404, 575 P.2d 1186 (lawyer prepared an ambiguous will and subsequent to testator's death corrected the ambiguity with an altered page in order to conceal his conduct, then testified that he had witnessed the testator's execution of the altered will).

Use of Pre-signed Client Verification

The use of pre-signed undated verification forms resulted in the imposition of 30-days actual suspension of a lawyer. The lawyer had a client sign a number of undated blank verification forms. Subsequent to his client's death, he attached one of the pre-signed verification forms to a discovery request and forwarded it to opposing counsel. Drociak v. State Bar (1991) 52 Cal.3d 1085, 278 Cal.Rptr. 86, 804 P.2d 711.

False Statements or Failure to Fully Disclose

In requesting a bail reduction for clients, the lawyer failed to disclose that two other such motions had been asserted and denied earlier on the same day. The court found this failure to disclose a material fact misleading as an affirmative misrepresentation. Di Sabatino v. State Bar (1980) 27 Cal.3d 159, 162 Cal.Rptr. 458, 606 P.2d 765.

A lawyer failed to inform the court of two continuance requests by opposing counsel (the second request was on the day of the proceeding and a result of transportation problems). When opposing counsel failed to appear, the respondent-lawyer obtained a default. The lawyer in the disciplinary proceeding was held culpable for willful concealment of material information coupled with the intent to mislead a judicial officer. Grove v. State Bar (1965) 63 Cal.2d 312, 46 Cal.Rptr. 513, 405 P.2d 553.

Culpability for violating the rule against misleading courts and judicial officers may be established even where there is no direct evidence of malice, intent to deceive, or hope of personal gain. Actual deception is not necessary to sustain a violation; willful deception is established where the lawyer knowingly presents a false statement which may tend to mislead the court. Even where the fabrications are the work of another, and the lawyer is unaware of the truth, the lawyer remains culpable if the lawyer learns of their bogus nature and continues to assert their authenticity. In the Matter of Tempkin (Review Dept. 1991) 1 Cal. State Bar Ct.Rptr. 321 (due to inconsistent findings (involving B&PC ¤ 6106, B&PC ¤ 6068(b) and B&PC ¤ 6103) and the need for witness "credibility reassessment" thereby necessitating a reevaluation of the documentary evidence, the case was remanded).

Destruction, Concealment, Alteration of Evidence

In lawyer disciplinary case based on the lawyer's conduct as a prosecutor, the evidence showed that the lawyer had altered information on a taxi-trip ticket to substantiate a witness's later testimony, then destroyed the original. This conduct was compounded by the lawyer's subsequent agreement with the defendant that the defendant would refrain from filing an appeal on his conviction, in exchange for a promise by the lawyer to seek a more favorable sentence and out of state incarceration in order to keep the initial misconduct secret. Price v. State Bar (1982) 30 Cal.3d 537, 179 Cal.Rptr. 914, 638 P.2d 1311 (discipline imposed).

References

CRPC 5-220 (suppression of evidence).

61 ALR4th 1216. Attorney's misrepresentation to court of his state of health or other personal matter in seeking trial delay as ground for disciplinary action.

40 ALR3d 169. Discipline imposed on the basis of alteration, fabrication, or suppression of evidence.

S.D. Op. 1983-3 (duty to reveal altered evidence).

CRPC 5-200(C)(D) and (E)

Cases

A lawyer cited a case as being controlling which was not on point. This error was compounded by the fact that he failed to cite a relevant case (on point) in which he had been attorney of record. However, the court determined that he lacked an "intent to mislead." Shaeffer v. State Bar (1945) 26 Cal.2d 739, 160 P.2d 825.

Expressions of personal opinion regarding the guilt or innocence of the accused by the prosecutor or defense counsel are prohibited. People v. Tyler (1st Dist. 1991) 233 Cal.App.3d 1456, 285 Cal.Rptr. 371.

References

CRPC 3-200 (prohibited objects of employment; frivolous appeals); CRPC 5-210 (member as witness).

B&PC ¤ 6068(b), (c), (d), (f), (g) (duties of lawyer); B&PC ¤ 6086.7 (actions of counsel which must be reported by clerk to the State Bar; many of the topics considered in this rule have a mandatory reporting requirement contained in this section of the B&PC); B&PC ¤ 6103 (willful violation of court order and violation of oath or duties as causes for disbarment or suspension; and B&PC ¤ 6106 (moral turpitude). California Rules of Court Rule 977 (citing unpublished opinions).

40 ALR3d 181. Discipline imposed on the basis of false, altered, or fabricated document.

3.3:101      Model Rule Comparison

CRPC 5-200 and B&PC ¤ 6068(d) are California's corollary to MR 3.3. See also, former CRPC 7-105 (1975) (identical to CRPC 5-200 with the exception that it additionally required that a lawyer must "[d]isclose, unless privileged or irrelevant, the identities of the clients he represents" to the tribunal to which he or she is presenting a matter).

MR 3.3(a)(1) prohibits a lawyer from knowingly making a false statement of material fact to a tribunal. The corresponding California provisions are almost identical. CRPC 5-200(B) provides that a lawyer "[s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law." B&PC ¤ 6068(d) requires lawyers to employ "such means only as are consistent with the truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." [See 3.3:200 False Statements to a Tribunal, infra].

MR 3.3(a)(2) requires disclosure of material facts to a tribunal "when such disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." The California provisions do not contain such a duty of disclosure. [See 3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud, infra, for further discussion].

MR 3.3(a)(3) requires lawyers to disclose controlling adverse legal authority to the tribunal where such authority is not cited by opposing counsel. In contrast, a California lawyer must not intentionally misquote authority to a tribunal, see CRPC 5-200(C), or knowingly cite invalid authority, see CRPC 5-200(C). [See 3.3:400 Disclosing Adverse Legal Authority, infra, for further discussion].

MR 3.3(a)(4) prohibits lawyers from knowingly offering false evidence and requires that lawyers who learn that they have offered false material evidence must take "reasonable remedial measures." Further MR 3.3(c) permits a lawyer to refuse to offer evidence that he or she reasonably believes is false, with MR Comment [14] allowing that in criminal cases "a lawyer may, in some jurisdictions, be denied this authority by constitutional requirements governing the right to counsel." By way of comparison, a California lawyer must employ such means "only as are consistent with truth," see CRPC 5-200(A) and must not "seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law," see CRPC 5-200(B); see also, B&PC ¤ 6068(d). [See 3.3:600 Remedial Measures Necessary to Correct False Evidence, infra, for further discussion].

MR 3.3(b) states that a lawyer's duties of candor to the tribunal "apply even if compliance requires disclosure of information otherwise protected [by the duty of confidentiality]." There is no California provision inuring that a lawyer's duty of candor may require disclosing confidential information. [See 3.3:300 Disclosure to Avoid Assisting Client Crime or Fraud, infra].

In an ex parte proceeding, MR 3.3(d) imposes a heightened duty upon counsel to "inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse." This heightened duty is due to the one-sided factual account which is otherwise presented to the judge in an ex parte proceeding because of the absence of one party. MR 3.3 Comment [15]. Neither the CRPC nor the B&PC impose heightened duties upon lawyers in an ex parte proceeding, and there appears to be no California case law explicitly imposing unique disclosure obligations in ex parte proceedings. [See 3.3:800 Duty of Disclosure in Ex Parte Proceedings, infra, for further discussion].

MR 3.3 does not have a provision that correlates with CRPC 5-200(E), which requires that a lawyer must not "assert personal knowledge of the facts at issue, except when testifying as a witness."

3.3:102      Model Code Comparison

DR 7-102 and DR 7-106 together represent still a third result of the compromise between balancing, on one hand, the lawyer's duty of candor to the tribunal, and on the other, the lawyer's duty of confidentiality to his or her client. These Model Code provisions diverge from the California corollary in many of the same ways that MR 3.3 does. [See 3.3:101 Model Rule Comparison, supra]. For example, DR 7-102(B)(2) provides for remedial measures once a lawyer learns of past fraud. That code provision requires a lawyer who learns of past fraud by someone other than his client to "promptly reveal the fraud to the tribunal." Additionally, DR 7-106 provides that a lawyer must disclose adverse legal authority where opposing counsel fails to disclose such authority. The California corollary, CRPC 5-200 and B&PC ¤ 6068(d) does not require disclosure of adverse legal authority, nor does it explicitly require remedial measures where a lawyer learns of past fraud.

DR 7-102(A)(7), which states that a lawyer may not "counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent" is absent from the California corollary. CRPC 5-200(A) contains a more ambiguous and generalized mandate that a lawyer "[s]hall employ, for the purpose of maintaining the causes confided to the member such means only as are consistent with the truth."

DR 7-102(A)(2) and DR 7-102(A)(4) together prohibit a lawyer from making a false statement of fact or law. These provisions roughly correspond to CRPC 5-200(B); however, the Model Code provision arguably prohibits a broader category of conduct. DR 7-102(A)(2) states that a lawyer must not "[k]nowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law." While CRPC 5-200 prevents a lawyer from making a false statement of law, it does not contain specific restrictions on "unwarranted" claims or defenses. Similarly, DR 7-102(A)(4) forbids knowingly using false evidence or perjured testimony; significantly, the California corollary does not specifically restrict a lawyer in the use of perjured testimony. [See 3.3:310 Prohibition on Counseling or Assisting Fraud on a Tribunal, infra].

DR 7-102(A)(6) prohibits a lawyer from creating or preserving evidence that is known to be or is obviously false. This rule reaches conduct beyond the offering of such evidence to a tribunal. No comparable provision exists in California's corollary. Similarly, while the corresponding California provisions do not expressly address omissions, DR 7-102(A)(3) provides that a lawyer may not "conceal or knowingly fail to disclose that which he is required by law to reveal."

3.3:200   False Statements to a Tribunal

¥ Primary California References: CRPC 5-200, B&PC ¤¤ 6068(d), 6103, 6106
¥ Background References: ABA Model Rule 3.3(a)(1) & (2), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:301, ALI-LGL ¤ 180, Wolfram ¤ 12.5, Vapnek, California Practice Guide: Professional Responsibility

In order to impose sanctions under CRPC 5-200 and/or B&PC ¤ 6068(d), a court must find that the lawyer intentionally misled the tribunal through a false statement of fact or law. A clear example of conduct that violates these provisions is found in the case of In the Matter of Farrell (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 490. In that case, a lawyer stated to the court that he had a witness who had not arrived at court who was under subpoena when in fact, the witness had not been served with a subpoena. The court implied a materiality requirement into former CRPC 7-105(1) (1975) and nevertheless found "that [the misrepresentation] was material both because it affected the court's scheduling of the daily calendar to accommodate the witness and because it wrongfully caused the witness ... to be initially considered by the court in disobedience of a subpoena which had not yet in fact been served upon him." Id. at 497; see also, Giovanazzi v. State Bar (1980) 28 Cal.3d 465, 473, 169 Cal.Rptr. 581, 619 P.2d 1005 (imposing discipline on lawyer who "misled a court by filing dishonest and inaccurate pleadings" by disavowing that he had given a certain individual power of attorney and disavowing the agency relationship between himself and that individual); Bach v. State Bar (1987) 43 Cal.3d 848, 239 Cal.Rptr. 302, 740 P.2d 414 (lawyer who denied having been advised by a judge to order his client to appear at a mediation hearing wilfully sought to mislead the court in violation of B&PC ¤ 6068(d) and former CRPC 7-105 (1975)); Codiga v. State Bar (1978) 20 Cal.3d 788, 144 Cal.Rptr. 404, 575 P.2d 1186 (lawyer who submitted false declaration stating that lawyer had witnessed the execution of a will, when in fact lawyer altered the will after he witnessed its signing violated B&PC ¤ 6106's prohibition of acts involving moral turpitude, dishonesty and corruption); In the Matter of Hertz (Review Dept. 1991) 1 Cal. State Bar Ct. Rptr. 456 (lawyer's false representation to the court that the $15,000 he was to hold in trust was "in escrow or in my trust account" when in fact the lawyer had misappropriated the entire sum violated B&PC ¤ 6068(d), B&PC ¤ 6106, B&PC ¤ 6103, B&PC ¤ 6068(a), CRPC 8-101(A) and former CRPC 7-105 (1975)); Drociak v. State Bar (1991) 52 Cal.3d 1085, 1090, 278 Cal.Rptr. 86, 804 P.2d 711 (lawyer's use of a pre-signed verification "without first consulting with the client to assure that any assertions of fact are true, is a clear and serious violation.").

Significantly, California jurisprudence has extended its prohibition on false statements of fact to prohibit concealment of material facts. As the court in In the Matter of Jeffers put it "[i]t is settled that concealment of material facts is just as misleading as explicit false statements, and accordingly, is misconduct calling for discipline." (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 211, 220 (quoting Di Sabatino v. State Bar (1980) 27 Cal.3d 159, 162, 162 Cal.Rptr. 458, 606 P.2d 765). The Jeffers court held that a lawyer who had pursued negotiations on behalf of a conservator without disclosing the fact of the conservatee's death had violated both B&PC ¤ 6068(d) and CRPC 5-200(B). Additionally, the court found that the lawyer's conduct constituted a violation of B&PC ¤ 6106, which provides that "any act of moral turpitude, dishonesty or corruption" may be subject to disbarment or suspension. See also, Grove v. State Bar (1965) 63 Cal.2d 312, 46 Cal.Rptr. 513, 405 P.2d 553 (lawyer's failure to inform court of request for continuance made by opposing counsel constituted a violation of B&PC ¤ 6068(d), B&PC ¤ 6103 and B&PC ¤ 6106); Arm v. State Bar (1990) 50 Cal.3d 763, 268 Cal.Rptr. 741, 789 P.2d 922 (lawyer who was nearing the beginning of a 60-day disciplinary suspension failed to disclose such suspension in consultations with the court concerning an upcoming court appearance); Sullins v. State Bar (1975) 15 Cal.3d 609, 125 Cal.Rptr. 471, 542 P.2d 631 (lawyer who, for his own gain by increase of his contingency fee, failed to disclose to the court the material fact that he had received a letter from an interested party renouncing his client's interest in the estate property at issue was in violation of B&PC ¤ 6103, B&PC ¤ 6128 and B&PC ¤ 6106); Di Sabatino v. State Bar (1980) 27 Cal.3d 159, 162 Cal.Rptr. 458, 606 P.2d 765 (when lawyer sought reduction of bail from bail commissioner, lawyer's failure to disclose fact that the lawyer had previously made two other bail reduction motions that day which were denied constituted failure to disclose material facts in violation of B&PC ¤ 6068(d) and former CRPC 7-105 (1975)).

Of course, the duty to disclose material facts is, at times, in direct conflict with the lawyer's duty to maintain the client's confidences under B&PC ¤ 6068(e). That section requires that a lawyer "maintain inviolate the confidence, at every peril to himself to preserve the secret, of his or her client." C.O.P.R.A.C. Op. 1986-87 addressed this issue as it relates to the duty of a criminal defense attorney to reveal his client's prior conviction information. This opinion states that "neither the duty of attorney confidence nor the duty of candor can be subordinated one to the other. . .[t]he attorney should remain silent." However, in a circumstance in which silence appears to be relied upon by the court as a denial of a prior record of convictions, the lawyer must disavow such denial to the court without disclosing that his or her client does have a prior conviction record. C.O.P.R.A.C. Op. 1986-87. Finally, if the court specifically questions the lawyer as to his or her client's prior conviction record, the lawyer should suggest to the court that other means of obtaining such information are available (prior convictions are public record). See C.O.P.R.A.C. Op. 1986-87.

C.O.P.R.A.C. Op. 1988-96 suggests that the duty of confidentiality may trump the duty to disclose all material facts where, unlike the criminal conviction record context discussed above, the concealed facts are not available through public record. C.O.P.R.A.C. Op. 1988-96 determined that a lawyer who learned that his former client had previously misappropriated trust funds and who continued to represent his former client's child in connection with obtaining a settlement over which the former client would have power of administration "may not, in the absence of the [former client's] express consent, disclose such information to the court...." C.O.P.R.A.C. Op. 1988-96.

3.3:300   Disclosure to Avoid Assisting Client Crime or Fraud

¥ Primary California References: CRPC 5-200, B&PC ¤ 6068(d)-(e)
¥ Background References: ABA Model Rule 3.3(a)(2), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:301, ALI-LGL ¤ 180, Vapnek, California Practice Guide: Professional Responsibility

[See 1.6:350 Disclosure to Prevent a Crime, supra].

3.3:310      Prohibition on Counseling or Assisting Fraud on a Tribunal; Client Perjury [see also 1.6:350]

MR 3.3(b) states that a lawyer's duties of candor to the tribunal "apply even if compliance requires disclosure of information otherwise protected [by the duty of confidentiality]." In contrast, B&PC ¤ 6068(e) requires a lawyer to "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client." Therefore, in California, the legislature has expressed a "clear policy that the duty of confidentiality is paramount." L.A. Op. 436.

Neither the B&PC nor the CRPC specifically address the issue of client perjury; however, the issue has been dealt with in California cases. See People v. Pike (1962) 58 Cal.2d 70, 22 Cal.Rptr. 664, 372 P.2d 656 (a defendant is not entitled to have a lawyer assist in presenting perjured testimony); In re Jones (1971) 5 Cal.3d 390, 400, 96 Cal.Rptr. 448, 487 P.2d 1016 ("[i]t is utterly reprehensible for an attorney at law to actively procure or knowingly countenance the commission of perjury."). A lawyer rarely knows in advance that the client is going to commit perjury. See People v. Brown (3rd Dist. 1988) 203 Cal.App.3d 1335, n.2, 250 Cal.Rptr. 762 ("[w]e recognize as a practical matter it is probably impossible to know in advance for certain whether a defendant will testify falsely."). Nevertheless, if the lawyer has such knowledge, withdrawal may be appropriate. See People v. Brown (3rd Dist. 1988) 203 Cal.App.3d 1335, 1339, 250 Cal.Rptr. 762 ("[w]hen faced with a criminal defendant who insists on testifying perjuriously, it is clearly appropriate under California law, even necessary, for counsel to present a request to withdraw to the court."). Whether the lawyer may withdraw is "within the sound discretion of the trial court." Id. at 1340.

In the criminal context, California courts approve of the so-called "narrative approach" in which the lawyer refrains from questioning the client so as not to participate in the client's perjury. The narrative approach balances the defendant's constitutional right to testify against the lawyer's duty not to subporn perjury. The narrative approach should be employed only after the lawyer's private entreaties fail to dissuade the defendant. The California Supreme Court determined that use of the narrative approach did not amount to ineffective assistance of counsel, even where counsel for the defendant participated in and argued the testimony of six other witnesses, thus creating a sharp contrast against counsel's lack of participation in defendant's testimony. People v. Guzman (1988) 45 Cal.3d 915, 248 Cal.Rptr. 467, 755 P.2d 917. The narrative approach was held to be acceptable in People v. Gadson (2nd Dist. 1993) 19 Cal.App.4th 1700, 24 Cal.Rptr.2d 219. The Gadson court held that a lawyer who, believing that his criminal defendant client was going to present perjured testimony, did not provide ineffective assistance by asking the client his name and whether he recalled anything on the night in question but refraining from further questioning and allowing the client to give his testimony in narrative fashion. In balancing the lawyer's duty of candor to the tribunal with the lawyer's duty to represent his client zealously, along with the constitutional right of a criminal defendant to testify, the court found that the lawyer's actions "were a reasonable attempt to solve a dilemma to which there was no clear solution." Id. at 1712. In People v. Johnson, the court expressly adopted the narrative approach as the preferred method of handling such situations. See People v. Johnson (4th Dist. 1998) 62 Cal.App.4th 608, 72 Cal.Rptr. 2d 805. After considering the available options, including permitting perjurious testimony with active lawyer questioning, withdrawal, refusing to present the client's testimony, persuading the client to avoid committing perjury and disclosure, the Johnson court concluded that "the narrative approach best accommodates the competing interests of the defendant's constitutional right to testify and the attorney's ethical obligations." Id.

Due to the supremacy of the duty of confidentiality in California, disclosure of a client's intent to commit perjury is an unacceptable course of action for a lawyer who has knowledge that his or her client intends to commit perjury. This is true irrespective of whether the source of the lawyer's knowledge that his or her client intends to commit fraud is a third party. C.O.P.R.A.C. Op. 1996-146; see also, People v. Johnson (4th Dist. 1998) 62 Cal.App.4th 608, 72 Cal.Rptr. 2d 805 (warning that "until the [client] actually takes the stand and testifies falsely, there is always a chance the [client] will change his mind and testify truthfully."). Similarly, a lawyer may not disclose a client's past perjury without the client's consent. [See 3.3:600 Remedial Measures Necessary to Correct False Evidence, infra, for further discussion].

3.3:400   Disclosing Adverse Legal Authority

¥ Primary California References: CRPC 5-200, B&PC ¤¤ 6068, 6106
¥ Background References: ABA Model Rule 3.3(a)(3), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 4:301, ALI-LGL ¤ 171, Wolfram ¤ 12.8, Vapnek, California Practice Guide: Professional Responsibility

CRPC 5-200 prohibits a lawyer from seeking to mislead a tribunal by a false statement of law or by misquoting authority or citing to authority which has been overruled, repealed or declared unconstitutional.

On its face, CRPC 5-200 does not impose any affirmative duty on lawyers to disclose adverse legal authority; however, courts interpreting CRPC 5-200 have implied such a duty. For example, where a lawyer who was highly knowledgeable of applicable medical malpractice laws failed to disclose fee limitation provisions pertaining to medical malpractice cases and proceeded to negotiate and request the court's approval for a fee amount exceeding the applicable limit, the court found that the lawyer violated B&PC ¤ 6068(d) and B&PC ¤ 6106, among other provisions. In the Matter of Harney (Review Dept. 1995) 3 Cal. State Bar Ct. Rptr. 266. Interestingly, the Harney court found violations despite its finding that "respondent's violations occurred through gross neglect rather than intentional dishonesty." Id. at 280. See also, Ainsworth v. State Bar (1988) 46 Cal.3d 1218, 252 Cal.Rptr. 267, 762 P.2d 431 (where lawyer's conduct in filing a complaint which cited a Supreme Court decision without disclosing that a rehearing had been granted in the case warranted discipline); see also, Shaeffer v. State Bar (1945) 26 Cal.2d 739, 160 P.2d 825 (lawyer who cited to case without citing to subsequent case which distinguished earlier case and of which lawyer had knowledge was subject to discipline).

In Alicia T. v. County of Los Angeles (2nd Dist. 1990) 222 Cal.App.3d 869, 271 Cal.Rptr. 513, the court found that a lawyer's conduct in failing to address adverse controlling authority and instead persisting in citing to an unpublished case, despite knowledge of these defects, warranted sanctions. Nevertheless, the court could not (and did not) point to the CRPC in support of its order to impose sanctions; rather, the Court first attempted to find that the lawyer had violated a local court rule governing the form of briefs. The court then "rejected these options because the violations in issue here involve more than the mere form of the brief." Id. at 886. The Court proceeded to order "a more severe sanction than those set forth in California Rules of Court, rule 18," though its struggle to find authority for such sanctions is apparent in the decision. Id.

3.3:500   Offering False Evidence

¥ Primary California References: CRPC 5-200, 5-310, Pen. Code ¤¤ 127, 132
¥ Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:301, ALI-LGL ¤¤ 175-180, Wolfram ¤¤ 12.3, 12.43, 12.5, Vapnek, California Practice Guide: Professional Responsibility

3.3:510      False Evidence in Civil Proceedings

It has been said that in a civil proceeding, the lawyer is "captain of the ship," meaning that the lawyer "controls which witnesses to call and evidence to present." See Vapnek, California Practice Guide: Professional Responsibility ¤ 8:190 (1997). Thus, unlike in criminal proceedings where the defendant's liberty is at stake, the lawyer has supreme control over the evidence introduced in a civil proceeding. In keeping with the requirements of CRPC 5-200 and B&PC ¤ 6068(d), in introducing evidence the lawyer must employ means that are consistent with the truth and may not seek to mislead the tribunal with false statements of fact or law. See Paul Oil Co. v. Federated Mutual Ins. Co. (9th Cir. 1998) 154 F.3d 1049 (directing district court to determine lawyer's role in presentation of sham declaration to trial court).

Additionally, California's penal code makes offering false evidence a felony. See Pen. Code ¤ 132 ("[e]very person who upon any trial, proceeding, inquiry, or investigation whatever ... offers into evidence, as genuine or true, any book, paper, document, record, or other instrument in writing, knowing the same to have been forged or fraudulently ante-dated, is guilty of felony."). A lawyer's conviction under this section may warrant discipline by the California Bar. See In re Jones (1971) 5 Cal.3d 390, 96 Cal.Rptr. 448, 487 P.2d 1016 (lawyer's conviction of subornation of perjury and offering false evidence warranted suspension from the practice of law).

3.3:520      False Evidence in Criminal Proceedings

California case law provides greater insight and indicates that creative solutions (comparable to the narrative approach) may be appropriate when a lawyer is confronted with the possibility of introducing false evidence in the criminal context. For example, in People v. Gadson (1994) 19 Cal.App.4th 1700, 24 Cal.Rptr.2d 219, a defense lawyer refused to question two witnesses because he believed that their testimony would be false. Instead, the defense lawyer called each of the witnesses, asked them to give their names and asked whether each recalled anything regarding the night in question; the remainder of the questioning was conducted by the defendant. The court found that the lawyer's approach was a reasonable "effort to reconcile his obligation as an officer of the court with his duty to vigorously represent his client" and that the lawyer's conduct did not constitute ineffective assistance of counsel. See also, People v. Jennings (1999) 70 Cal.App.4th 899, 82 Cal.Rptr.2d 33 (attorney disclosed to court that conflicts would prohibit certain questions and that his client had authorized a limited examination); People v. Johnson (1998) 62 Cal.App.4th 608, 72 Cal.Rptr.2d 805 (approves narrative approach); In re Robert A. Branch (1969) 70 Cal.2d 200, 74 Cal.Rptr. 238, 449 P.2d 174 (client was not denied effective assistance of counsel where criminal defense lawyer failed to investigate client's statement that a fellow inmate was willing to testify in his client's defense; client did not tell lawyer about the inmate until after client's conviction and the lawyer's belief that the inmate's testimony would be false was sufficient to permit him to refuse to investigate).

California's penal code makes offering false evidence a felony. [see 3.3:510 False Evidence in Civil Proceedings, supra]. This section applies to "any trial, proceeding, inquiry, or investigation whatever" and does not make any special exception for criminal proceedings. See Pen. Code ¤ 132.

3.3:530      Offering a Witness an Improper Inducement

[See 3.4:300 Falsifying Evidence, infra].

3.3:540      Interviewing and Preparing Witnesses

The limitations upon lawyer conduct when interviewing and preparing witnesses are not directly addressed in the CRPC or the B&PC. CRPC 5-200 requires that a lawyer must employ "such means only as are consistent with the truth," see CRPC 5-200(A) and that the attorney "[s]hall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law," see CRPC 5-200(B). Thus, it is clear that "counsel may not offer the testimony of a witness which he knows to be untrue." People v. Davis (1957) 48 Cal.2d 241, 309 P.2d 1.

The Penal Code prohibits suborning perjury, see Pen. Code ¤ 127, and a lawyer may be disbarred for counselling witnesses to testify falsely. See In re Allen (1959) 52 Cal.2d 762, 344 P.2d 609 (lawyer disbarred as a result of encouraging the recruitment of two witnesses to testify falsely that they were witnesses to an automobile accident and counselling the witnesses to testify despite their protests that they had not seen the accident and did not wish to testify); see also, In re Jones (1971) 5 Cal.3d 390, 96 Cal.Rptr. 448, 487 P.2d 1016 (where lawyer's conviction of subornation of perjury and offering false evidence warranted suspension from the practice of law).

The issue of "coaching" a witness often arises in the context of criminal appeals, in which defendants argue that testimony introduced at trial should not have been admitted (or its lack of merit should have been mentioned in jury instructions) because the prosecution's witnesses were coached. See, e.g., People v. Norred (1st Dist. 1952) 110 Cal.App.2d 492, 243 P.2d 126 (defendant's appeal from conviction of "lewd and lascivious acts" upon two children was based in part upon allegation that prosecuting lawyer coached the five-year-old witness; court held that conviction would stand absent evidence of such coaching).

Additionally, the CRPC prohibits a lawyer from counseling a witness to "secrete himself or herself" and from "directly or indirectly [causing] a person to leave a tribunal's jurisdiction in order to make that person unavailable as a witness." CRPC 5-310(A).

For a discussion regarding the obligations of a lawyer who interviews a witness or other third party who is represented by counsel [see Rule 4.2 Communication with Person Represented by Counsel, infra].

3.3:600   Remedial Measures Necessary to Correct False Evidence

¥ Primary California References: CRPC 5-200
¥ Background References: ABA Model Rule 3.3(a)(4), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:401 et seq., ALI-LGL ¤ 117A-B, Wolfram ¤¤ 12.5, 12.6, 13.3.6

3.3:610      Duty to Reveal Fraud to the Tribunal

"The lawyer should urge the client to rectify past perjury; if that is unsuccessful, the lawyer may seek to withdraw." Karpman & Margolis pg. 93.

C.O.P.R.A.C. Op. 1983-74 addresses a situation in which a lawyer has knowledge that his or her client has committed perjury, while noting that knowledge of past perjury is not easily acquired: "[i]t is not a simple matter for an attorney to conclude, during trial, that he/she knows his/her client has committed perjury. And, if the attorney has any doubt about his/her knowledge, he/she should resolve the doubt in favor of his/her client."

C.O.P.R.A.C. Op. 1983-74 offers detailed guidance for a lawyer's course of conduct in the event the lawyer learns in the midst of a civil, non-jury trial that his or her client has committed perjury. A lawyer in such a situation "may not remain silent." C.O.P.R.A.C. Op. 1983-74. The lawyer should "immediately have a private conference with his/her client," and if after such consultation the attorney continues to believe that the client has committed perjury, the lawyer should explain to the client that the lawyer will make a motion to the court to withdraw from the case if the perjured testimony is not corrected or removed from the record. Id. The lawyer must further explain the potential consequences of attempting to correct the testimony or removing the testimony from the record. If the lawyer fails to convince his or her client to repair the perjury, the lawyer "is required to move the court to withdraw as counsel without disclosing the perjured testimony." Id. If the court denies the motion to withdraw, the lawyer must persist in representing the client but "may not thereafter rely upon or refer to any of the perjured testimony." Id. In pursuing these remedial measures, C.O.P.R.A.C. Op. 1983-74 makes clear that the lawyer may not disclose the fact of his or her client's past perjury without the client's consent. Id. This is true irrespective of whether the lawyer received knowledge of the perjury from a third party because the lawyer's duty under B&PC ¤ 6068(e) to hold client information confidential "does not depend on the source of the information." C.O.P.R.A.C. Op. 1996-146.

If after the client has testified in a narrative fashion the lawyer knows that the client's testimony was false, the lawyer must not rely on any of the client's false testimony in closing arguments. People v. Johnson (4th Dist. 1998) 62 Cal.App.4th 608, 72 Cal.Rptr.2d 805.

3.3:700   Discretion to Withhold Evidence Believed to Be False

¥ Primary California References:
¥ Background References: ABA Model Rule 3.3(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:301, ALI-LGL ¤ 180, Wolfram ¤ 12.5

Unlike MR 3.3(c), neither the B&PC nor the CRPC provide explicit permission for a lawyer to refuse to offer evidence which he or she only "reasonably believes" is false. In fact, where client testimony is concerned, a lawyer must have actual knowledge that the client testimony will be perjured prior to considering withdrawal. [See 3.3:310 Prohibition on Counseling or Assisting Fraud on a Tribunal, supra; 3.3:500 Offering False Evidence et. seq., supra].

3.3:800   Duty of Disclosure in Ex Parte Proceedings

¥ Primary California References:
¥ Background References: ABA Model Rule 3.3(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ , ALI-LGL ¤ 172 , Wolfram ¤ 12.7

In an ex parte proceeding, MR 3.3(d) imposes a heightened duty upon counsel to "inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse." This heightened duty is due to the one-sided factual account which is otherwise presented to the judge in an ex parte proceeding because of the absence of one party. MR 3.3 Comment [15]. Neither the CRPC nor the B&PC impose heightened duties upon lawyers in an ex parte proceeding, and there appears to be no California case law explicitly imposing unique disclosure obligations in ex parte proceedings. Two cases in which ex parte communications were involved stress the importance of disclosure but do not articulate any heightened obligations in ex parte proceedings. See Di Sabatino v. State Bar (1980) 27 Cal.3d 159, 162 Cal.Rptr. 458, 606 P.2d 765 (lawyer disciplined for seeking reduction of bail from bail commissioner without disclosing that the lawyer had previously made two other bail reduction motions that day which were denied); Snyder v. State Bar (1976) 18 Cal.3d 286, 133 Cal.Rptr. 864, 555 P.2d 1104 (lawyer was disbarred for, among other things, seeking and obtaining a temporary restraining order from one judge without disclosing that another judge had previously entered a conflicting order in a related matter).

3.4   Rule 3.4 Fairness to Opposing Party and Counsel

3.4:100   Comparative Analysis of CA Rule

¥ Primary California References: CRPC 3-210, 5-200, 5-220, 5-300
¥ Background References: ABA Model Rule 3.4, Other Jurisdictions
¥ Commentary:

3.4:101      Model Rule Comparison

The CRPC and the B&PC set out several separate rules governing fairness to opposing counsel. While many of the California rules parallel MR 3.4, in some instances, no direct California equivalent to MR 3.4 exists.

MR 3.4(a) provides that "a lawyer shall not obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value." CRPC 5-220 is analogous to MR 3.4(a) in that it prohibits the suppression of evidence that the attorney or client has a legal obligation to reveal or produce. B&PC ¤ 6068(d) imposes a general duty to be truthful, including "refrain[ing] from acts which mislead or tend to mislead."

MR 3.4(b) prohibits falsification of evidence, advising or assisting witnesses to testify falsely, or offering unlawful inducements to witnesses. CRPC 5-310 prohibits specific kinds of contacts with witnesses, including advising a witness to hide or leave the jurisdiction to avoid testifying and paying witnesses contingent on the testimony given or the outcome of a case. CRPC 5-200(B) provides that an attorney shall not seek to mislead a judge or jury by artifice or false statement of fact or law. As discussed above, B&PC ¤ 6068(d) imposes a general duty to be truthful, which may seem to parallel the prohibition against falsifying evidence in MR 3.4, but B&PC ¤ 6068(d) is directed more toward preventing the attorney from committing acts of misrepresentation, as opposed to falsifying evidence or encouraging a witness to testify falsely.

MR 3.4(c) prohibits attorneys from knowingly disobeying an obligation under the rules of a tribunal. California addresses similar issues in the B&PC and the CRPC. B&PC ¤ 6068(b) requires an attorney to maintain the respect due to courts and judicial officers, but does not directly require attorneys to obey obligations under the rules of a tribunal. Civ. Proc. Code ¤ 1209(a)(5) provides "disobeying of any lawful order or process of the court" are contempts of the authority of the court. CRPC 3-210 prohibits members of the bar from advising violations of a ruling or rule of a tribunal unless the member has a good faith belief that the rule or ruling is invalid.

MR 3.4(d) prohibits frivolous discovery requests as well as failures to attempt to comply reasonably with legal and proper discovery requests by opposing parties. California controls discovery abuses in its Civ. Proc. Code. Civ. Proc. Code ¤ 2023(a)(1) provides that persisting, over objection and without substantial justification in an attempt to obtain information outside the scope of permissible discovery, is a misuse of the discovery process. Similarly, Civ. Proc. Code ¤ 2023(a)(4) states that failure to respond or submit to permitted discovery is a misuse of the discovery process. Misuses of the discovery process can result in sanctions against an attorney. Furthermore, B&PC ¤ 6068(g) places a general ban on corrupt motives, including the commencement or the continuance of an action from any corrupt motive of passion or interest. Frivolous discovery requests could therefore violate both MR 3.4(d) and its California corollary.

MR 3.4(e) bars lawyers from using improper trial tactics, including alluding to irrelevant evidence and asserting personal knowledge of facts except when acting as a witness. Similarly, CRPC 5-200 governs the conduct of attorneys in trial, including the requirements that an attorney only employ means that are consistent with the truth, that an attorney not mislead a tribunal or jury by a false statement of fact or law, that an attorney not misquote a book, statute or decision, and that an attorney not assert personal knowledge of the facts unless testifying as a witness. CRPC 5-210 describes the circumstances when an attorney can testify before a jury. Finally, CRPC 5-300 prohibits members of the bar from giving inappropriate gifts to judges or other officers of the court.

MR 3.4(f) prohibits attorneys from "request[ing that] a person other than a client ... refrain from voluntarily giving relevant information to a party." CRPC 5-310 prohibits members of the bar from advising persons to leave the jurisdiction of the court so as to make themselves unavailable as witnesses, but does not directly prohibit an attorney from requesting that a third party not provide relevant evidence; MR 3.4(f) disallows requesting persons to refrain from voluntarily giving relevant information. CRPC 5-220 also touches on this issue, as it prohibits suppression of evidence by an attorney.

3.4:102      Model Code Comparison

DR 7-106 and DR 7-109 govern much of the same conduct as MR 3.4, and the comparison between DR 7-106 and DR 7-109 and the related California rules is similar to the comparison between MR 3.4 and its California counterparts. DR 7-106 regulates trial conduct, prohibiting attorneys from disregarding the rules of a tribunal or advising a client to do so. B&PC ¤ 6068(c) and B&PC ¤ 6068(f) require that attorneys only maintain just actions and abstain from offensive personality. DR 7-106 also specifically prohibits a lawyer from asserting personal knowledge of the facts in issue except when testifying as a witness. This requirement is included in CRPC 5-200(E). DR 7-109 deals with contact with witnesses. It is paralleled in California by CRPC 5-220. CRPC 5-310 directly follows DR 7-109, in that both prohibit lawyers from advising or causing persons to make themselves unavailable as witnesses by leaving the jurisdiction or otherwise. DR 7-109 disallows paying witnesses contingent on their testimony or the outcome of the case, and it also governs payment of witnesses in general as experts or to compensate for reasonable expenses. CRPC 5-310 also addresses these issues.

3.4:103      Overview

3.4:200   Unlawful Destruction and Concealment of Evidence

¥ Primary California References: CRPC 5-200, 5-300, B&PC ¤ 6068, Evid. Code ¤ 954
¥ Background References: ABA Model Rule 3.4(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:701, ALI-LGL ¤¤ 178, 179, Wolfram ¤ 12.3, 12.4

CRPC 5-220 states that a lawyer must not "suppress any evidence that the member or the member's client has a legal obligation to reveal or produce." Documents and other physical evidence generally need not be produced in civil proceedings unless properly requested under the California Civil Discovery Act. See Civ. Proc. Code ¤ 2016-36. Under the Act, failure to provide requested documents or information after a proper request may result in sanctions. See Civ. Proc. Code ¤¤ 2031(m), 2023. Concealment or destruction of physical evidence is also a criminal offense under certain circumstances. Pen. Code ¤ 135 provides that:

Every person who, knowing that any book record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation ... willfully destroys or conceals the same, with intent thereby to prevent it from being produced, is guilty of a misdemeanor.

CRPC 5-200(B) bars use of "an artifice or false statement of fact or law" in order to "mislead the judge, judicial officer, or jury." The case of Price v. State Bar (1982) 30 Cal.3d 537, 179 Cal.Rptr. 914, 638 P.2d 1311, illustrates the California rules. In Price, an attorney was placed on probation from the practice of law for five years as a result of misconduct which included altering evidence in a criminal trial. In Bach v. State Bar (1987) 43 Cal.3d 848, 239 Cal.Rptr. 302, 740 P.2d 414, an attorney was suspended for willful misrepresentation to a judge. Both Price and Bach cited the misconduct by the attorneys as violations of former CRPC 7-105(1975), which has now been changed to CRPC 5-200.

Finally, B&PC ¤ 6068(d) requires that attorneys comply with a general duty to be truthful. This section mirrors CRPC 5-200(B), which proscribes practices which "mislead or tend to mislead." Rodgers v. State Bar (1989) 48 Cal.3d 300, 315, 256 Cal.Rptr.381, 768 P.2d 1058. The State Bar of California has consistently imposed sanctions on attorneys for violating the rules set forth in B&PC ¤ 6068(d). See, e.g., Davis v. State Bar (1983) 33 Cal.3d 231, 188 Cal.Rptr. 441, 655 P.2d 1276 (holding that "the filing of false or misleading pleadings or documents is ground for discipline"). See also, Pickering v. State Bar (1944) 24 Cal.2d 141, 148 P.2d 1 (holding that "[t]he presentation to a court of a statement of fact known to be false presumes an intent to secure a determination based upon it and is a clear violation of [B&PC ¤ 6068 (d)].").

The following excerpts are taken from Karpman & Margolis pages 100-101 with certain conforming changes:

A lawyer who comes into possession of evidence material to a crime is faced with conflicting duties: that of loyalty to the client and the preservation of the client's confidences and secrets (B&PC ¤ 6068(e), and Evid. Code ¤ 954), and the often conflicting duty of seeking the truth under the adversary system of justice.

Defendant told his counsel of the location of his victim's wallet; defense counsel had his investigator retrieve the wallet, examined it, and then turned it over to the police, without revealing the source of the information that led to its discovery or the location where the wallet was found. The defense investigator was compelled to testify concerning his observation of the location of the wallet when it was retrieved. The Supreme Court held that disclosure of the location of the wallet would have remained protected by the lawyer-client privilege, had the defense lawyer not removed the physical evidence from its original location. People v. Meredith (1981) 29 Cal.3d 682, 175 Cal.Rptr. 612, 631 P.2d 46.

A deputy public defender received a pair of defendant's bloodstained shoes from the defendant's wife. The public defender delivered the shoes to a municipal court judge. The district attorney obtained the shoes through a search warrant. The appellate court held that defense counsel had no right to withhold such evidence from the prosecution, and that the lawyer should have turned it directly over to the prosecution. People v. Lee (4th Dist. 1970) 3 Cal.App.3d 514, 83 Cal.Rptr. 715.

A prosecutor altered evidence in a criminal trial. He then attempted to prevent discovery of his misconduct by discussing the alteration with the judge in the absence of opposing counsel, and communicating to the defendant an offer to seek favorable sentencing in exchange for the defendant's agreement not to appeal the conviction. The prosecutor was found culpable of acts of dishonesty and moral turpitude, as well as a violation of this section. Price v. State Bar (1982) 30 Cal.3d 537, 179 Cal.Rptr. 914, 638 P.2d 1311.

The court held that it is an abuse of a lawyer's professional responsibility to knowingly take possession of and secrete the instrumentalities of a crime. People v. Superior Court (Fairbank) (1st Dist.1987) 192 Cal.App.3d 32, 237 Cal.Rptr. 158.

Ethics Opinions

C.O.P.R.A.C. Op. 1984-76 (Criminal defense lawyer, after holding for a reasonable time, for the purpose of preparing his client's defense, the instrumentalities, fruits, or other physical evidence of a crime by his client, is legally and ethically obligated to turn over such evidence to the prosecution. The lawyer should advise his client of this obligation prior to taking possession of such evidence).

C.O.P.R.A.C. Op. 1986-89 (Ethical responsibilities of lawyer whose client requests lawyer to take possession of stolen property and condition its return upon agreement by victim not to prosecute the crime).

L.A. Op. 1991-466 (Once lawyer learns with reasonable certainty that cash received for legal services was actual evidence or fruits of client's illegal drug transactions, lawyer has duty to turn cash over, in a reasonable period of time, to police or prosecution).

3.4:210      Physical Evidence of Client Crime

A lawyer's duty to turn over physical evidence of crime is dealt with in Pen. Code ¤ 135 (concealing and destroying evidence). In People v. Meredith (1981) 29 Cal.3d 682, 175 Cal.Rptr. 612, 631 P.2d 46, a lawyer's investigator found the wallet of the murder victim in the place where the client had told the lawyer he had left it. The court stated that evidence concerning the location of the wallet would be destroyed if the investigator was not required to reveal where it had been found. Since this obligation requires the lawyer to disclose the client's communications to the lawyer concerning possession, location, and condition of the physical evidence, it is a clear exception to the duty of confidentiality. However, the prosecutor is required to take all reasonable steps to prevent the jury from learning that the source of the evidence was the defendant's lawyer in order to uphold the attorney-client privilege. See State v. Olwell (1964) 64 Wash.2d 828, 394 P.2d 681 (relied on in Meredith). A lawyer who comes into possession of physical evidence of crime, either from a client or as a result of client statements, has a legal duty to turn the evidence over to the prosecutor; no motion by the prosecutor or order by the court is required. The leading cases confirming the lawyer's duty to turn over physical evidence of client crimes, aside from Meredith, supra, are People v. Lee (4th Dist. 1970) 3 Cal.App.3d 514, 83 Cal.Rptr. 715 (client's wife delivered to the defense lawyer shoes stained with the victim's blood; physical evidence in the possession of a lawyer was held not privileged) and People v. Superior Court (1st Dist. 1987) 192 Cal.App.3d 32, 237 Cal.Rptr. 158 (defense counsel accepted from defendant weapons used in the charged crime and resisted turning them over, claiming they could be retained until formally requested by court; granting mandamus, appellate court held that turnover obligation was self-executing and no motion by prosecutor or order by the court was required).

3.4:300   Falsifying Evidence

¥ Primary California References: CRPC 5-200, 5-310, B&PC ¤ 6068(d)
¥ Background References: ABA Model Rule 3.4(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤¤ 61:601, 61:701, ALI-LGL ¤ 178, Wolfram ¤ 12.3

CRPC 5-200 prohibits misleading a judge, judicial officer or jury by artifice or false statement of law or fact. B&PC ¤ 6068(d) imposes a general duty to be truthful on attorneys. While there is no specific prohibition against falsifying evidence in this section of the B&PC the duty to be truthful is broad, and certainly includes the requirement that evidence must not be falsified.

MR 3.4(b) also specifically prohibits attorneys from assisting or advising witnesses to testify falsely or offering witnesses inducements to do so. A contingent fee for an expert or occurrence witness is "an inducement to a witness that is prohibited by law" within MR 3.4(b) Comment 3. CRPC 5-310(B) contains a similar prohibition. Reimbursements of expenses and reasonable compensation for lost time are permissible, and experts may be paid a reasonable fee. California courts have held that contingency contracts with expert witnesses are unethical and void as against public policy. Von Kesler v. Baker (2nd Dist. 1933) 131 Cal.App. 654, 21 P.2d 1017 (holding contingency contract for expert witness to be unenforceable). See also S.D. Op. 1984-79 ("California case authority, in accord with the common law, has strongly condemned such contingent fee arrangements."). Another issue related to MR 3.4(b) is ex parte communications with treating physicians. California courts have held that an attorney cannot obtain information through ex parte communication with the opposing party's treating physician. Torres v. Superior Court (4th Dist. 1990) 221 Cal.App.3d 181, 270 Cal.Rptr. 401 (holding that providing such information would be an ethical violation by the physician). The court found that such communication was in violation of Evid. Code ¤ 994 which sets forth the physician-patient privilege. The court held that the counsel must pursue information from the physician through established discovery procedures.

3.4:310      Prohibited Inducements

[See 3.4:300 Falsifying Evidence, supra].

3.4:400   Knowing Disobedience to Rules of Tribunal

¥ Primary California References: CRPC 3-210, B&PC ¤ 6068(c)(e)(f)
¥ Background References: ABA Model Rule 3.4(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:1231, ALI-LGL ¤ 165, Wolfram ¤ 12.1

B&PC ¤¤ 6068(c) and B&PC ¤ 6068(f) provide that attorneys must follow certain standards which are related to obeying the rules of the court. B&PC ¤ 6068(c) requires that attorneys may only counsel or maintain just actions. Members of the bar are prohibited from pursuing vindictive and spiteful litigation by B&PC ¤ 6068(e). See Sorenson v. State Bar (1971) 52 Cal.3d 1036, 277 Cal.Rptr. 858, 804 P.2d 44 (holding that an attorney who sought thousands of dollars in damages over a forty-five dollar discrepancy violated B&PC ¤ 6068(c)). Hence, this section seeks to proscribe tactics which are associated with frivolous litigation.

Similar to B&PC ¤ 6068(c), B&PC ¤ 6068(f) prohibits offensive behavior, including using tactics that insult the court or disrupt or delay matters before the court. The case of United States v. Engstrom (9th Cir. 1994) 16 F.3d 1006, provides a good example of an attorney being punished for such behavior. In Engstrom, the attorney for the defendant was suspended from the practice of law for three years for making disruptive, insulting, and confrontational remarks to a judge. See also, In the Matter of Varakin (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 179 (suspending attorney for "repeatedly fil[ing] frivolous motions and appeals ... for the purpose of delay and harassment."). While B&PC ¤ 6068(f) remains in the code, there is some question as to its constitutional validity. In late 1997, the Review Department of the State Bar Court of California dismissed a claim based on B&PC ¤ 6068(f), holding that the rule was "unconstitutionally vague." In the Matter of Yagman (Review Dept. 1997) 3 Cal. State Bar Ct. Rptr. 179. Furthermore, in United States v. Wunsch (9th Cir. 1996) 84 F.3d 1110, the Ninth Circuit held that "...`offensive personality' is an unconstitutionally vague term in the context of this statute [B&PC ¤ 6068(f)]." Wunsch, 84 F.3d at 1119. The California Supreme Court has not ruled on the issue. Civ. Proc. Code ¤ 1209(a)(5) provides that disobedience of any lawful judgment, order or process of the court constitutes contempt of the authority of the court.

Finally, CRPC 3-210 prohibits lawyers from advising violations of rules or rulings of tribunals unless the attorney believes in good faith that the rule or ruling is invalid. For example, in Hawk v. Superior Court (1st Dist. 1974) 42 Cal.App.3d 108, 116 Cal.Rptr. 713, the court held that lawyers may not disregard or advise their clients to disregard a standing rule of a tribunal or a ruling of tribunal made during a proceeding.

3.4:500   Fairness in Pretrial Practice

¥ Primary California References: B&PC ¤ 6068(d)(g), Civ. Proc. Code ¤ 1209
¥ Background References: ABA Model Rule 3.4(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:701, ALI-LGL ¤ 166, Wolfram ¤ 12.4

B&PC ¤ 6068(d) can be violated when improper discovery tactics are used. For example, in Drociak v. State Bar (1991) 52 Cal.3d 1085, 278 Cal.Rptr. 86, 804 P.2d 711, the California Supreme Court found that an attorney violated B&PC ¤ 6068(d) when he used a pre-signed verification during discovery when providing responses for a client who had died. B&PC ¤ 6068(g) also touches on issues of abusive pretrial procedures, such as discovery, as it prohibits lawyers from commencing or continuing actions based on corrupt motives, including delay tactics. Civ. Proc. Code ¤ 1209 also lists "[a]buse of the process or proceedings of the court" as an act constituting contempt. The California discovery statutes control discovery abuses. [See 3.4:101 Model Rule Comparison, supra]. Sanctions can be imposed for persisting in improper discovery or failing to respond to legitimate discovery. Civ. Proc. Code ¤¤ 2023(a)(1), 2023(a)(4).

When an attorney receives from opposing counsel documents that obviously appear to be privileged or confidential and when it is reasonably apparent that the documents were produced through inadvertence, the attorney receiving the documents has ethical duty to notify opposing counsel of receipt of documents and to refrain from using them until the situation can be resolved by agreement or a court order. State Compensation Insurance Fraud v. WPS, Inc. (1999) 70 Cal.App.4th 644, 82 Cal.Rptr.2d 799; see also ABA Formal Opinion 92-368

3.4:600   Improper Trial Tactics

¥ Primary California References: CRPC 5-200, 5-300, B&PC ¤ 6068(f)
¥ Background References: ABA Model Rule 3.4(e), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:1361, ALI-LGL ¤ 167, Wolfram ¤ 12.1

CRPC 5-200(E) governs the conduct of attorneys during trial. Under both CRPC 5-200(E) and MR 3.4(e), a lawyer must not assert personal knowledge of the facts in a trial except when testifying as a witness. California case law also contains a prohibition on the expression of personal opinion as to a client's innocence or other fact in issue. People v. Tyler (1st Dist. 1991) 233 Cal.App.3d 1456, 285 Cal.Rptr. 371. The ban on offensive personality in B&PC ¤ 6068(f) proscribes certain tactics which are improper in trial. For examples of what some of these tactics are, see Ramirez v. State Bar (1980) 28 Cal.3d 402, 169 Cal.Rptr. 206, 619 P.2d 399 (attorney violated professional standards by "falsely maligning" three justices of the Court of Appeal); In the Matter of Varakin (Review Dept. 1994) 3 Cal. State Bar Ct. Rptr. 179 (suspending attorney for "repeatedly fil[ing] frivolous motions and appeals for the purpose of delay and harassment."). See also, Snyder v. State Bar (1976) 18 Cal.3d 286, 133 Cal. Rptr. 864, 555 P.2d 1104 (imposing sanctions on attorney for "grievous misconduct and abuse of court process and procedures."). Though these practices were barred by B&PC ¤ 6068(f), the constitutionality of this rule is unclear. [See 3.4:400 Knowing Disobedience to Rules of Tribunal, supra]. Civ. Proc. Code ¤ 1209 also lists improper trial tactics, such as behavior that interrupts the course of the trial, unlawful detention of a witness, or unlawful interference with the process or proceedings of a court, as actions which constitute contempt.

3.4:700   Advising Witness Not to Speak to Opposing Parties

¥ Primary California References: CRPC 5-220, 5-310
¥ Background References: ABA Model Rule 3.4(f), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ , ALI-LGL ¤ 176, Wolfram ¤ 12.4.2

No direct California equivalent of MR 3.4(f) exists. Both CRPC 5-220 and CRPC 5-310 touch on subjects related to MR 3.4(f), but neither directly prohibits attorneys from advising persons other than clients to refrain from giving relevant information. CRPC 5-220 proscribes suppression of evidence. The practice of preventing non-clients from giving potentially relevant information which is prohibited by MR 3.4(f) is one way of suppressing evidence. CRPC 5-310 disallows a lawyer from advising or causing a person to make him or herself unavailable as a witness by leaving the jurisdiction or hiding. This type of behavior would also prevent a person from giving relevant information. Thus, the reasoning behind MR 3.4(f) seems to be encompassed by CRPC 5-310. Although they do not specifically discuss a lawyer's duty not to encourage a witness to refrain from giving relevant information, these two California rules set the basic standard of preventing suppression of evidence and unavailability of witnesses.

3.5   Rule 3.5 Impartiality and Decorum of the Tribunal

3.5:100   Comparative Analysis of CA Rule

¥ Primary California References: CRPC 5-200, 5-300, 5-310, 5-320
¥ Background References: ABA Model Rule 3.5, Other Jurisdictions
¥ Commentary:

3.5:101      Model Rule Comparison

CRPC 5-300 is the counterpart to those portions of MR 3.5(a) and MR 3.5(b) that deal with communicating with or influencing judges and other officials. CRPC 5-320 is the counterpart to those portions of MR 3.5(a) and MR 3.5(b) addressing communicating with or influencing jurors. MR 3.5(a) provides that a lawyer shall not "seek to influence a judge, juror, prospective juror or other official by means prohibited by law" and MR 3.5(b) provides that a lawyer shall not "communicate ex parte with such a person except as permitted by law." Cf., CRPC 5-300.

CRPC 5-320 governs contacts and communications between a lawyer and potential, empaneled, discharged or excused jurors. It is more explicit than MR 3.5 and specifies the types of communications that are prohibited.

There is no direct California counterpart to MR 3.5(c), which prohibits "conduct intended to disrupt a tribunal." CRPC 5-200 sets forth rules that an attorney must follow when presenting a matter to a tribunal.

3.5:102      Model Code Comparison

Some of CRPC 5-200's provisions are similar to DR 7-106, but DR 7-106 sets forth a number of additional rules on statements and questions that an attorney can use in court. With regard to the decorum of the tribunal, DR 7-106(C)(6) that an attorney shall not engage in "undignified or discourteous conduct which is degrading to a tribunal."

In the area of communications with jurors, the Model Code is essentially the same as CRPC 5-320. The Model Code adds that investigations of jurors or veniremen should be done with "circumspection and restraint." EC 7-30.

CRPC 5-300 is not significantly different from DR 7-110, which deals with communications with judicial officers. Both the CRPC and the Model Code set forth the types of permitted communications. One difference involves ex parte communication. The Model Code provides that an ex parte communication is allowed "orally upon adequate notice to opposing counsel or to the adverse party if he is not represented by a lawyer." DR 7-110(B)(3). CRPC 5-300(B)(5) permits an attorney to communicate with a judicial officer "in ex parte matters." Although CRPC 5-300 does not itself require notice to opposing counsel in ex parte matters, but most California courts have local rules requiring such notice.

3.5:200   Improperly Influencing a Judge, Juror, or Other Court Official

¥ Primary California References: CRPC 5-300, 5-320
¥ Background References: ABA Model Rule 3.5(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:801, 101:702, ALI-LGL ¤¤ 173, 175, Wolfram ¤¤ 11.3, 11.4

Improperly Influencing Jurors

Gifts and bribes to potential or active jurors are prohibited. See Whitfield v. Roth (1974) 10 Cal.3d 874, 112 Cal.Rptr. 540, 519 P.2d 588 (sending cigars to jury members to celebrate birth of counsel's child was improper conduct).

Contact with jurors during trial is not only unethical under the CRPC but also can constitute a crime under Pen. Code ¤ 95, which prohibits "attempts to influence a juror, or any person summoned or drawn as a juror." In re Possino (1984) 37 Cal.3d 163, 207 Cal.Rptr. 543, 689 P.2d 115 (upholding disbarment of attorney who initiated a friendly conversation with a juror in a bar in an attempt to generate sympathy for his position). The substance of the conversation or contact does not matter. Id. at 170 ("[t]he harm inherent in deliberate contact or communication can take the form of subtly creating juror empathy with the party.").

Only a few California courts have addressed pretrial contact with potential jurors or jury pools. One court has held that the use by the prosecution of a list of good and bad jurors in voir dire did not result in deprivation of a fair trial. People v. Aireheart (2nd Dist. 1968) 262 Cal.App.2d 673, 68 Cal.Rptr. 857. The court, however, noted that the investigation that generated the list did not include personal contact with the potential jurors. Id. at 679.

The issue of post-trial communication with jurors, however, has been heavily litigated and even legislated in California. Some jurisdictions prohibit post-trial communication without judicial supervision. See U.S. v. Kepreos (1st Cir. 1985) 759 F.2d 961 (prohibiting post-verdict interviews of jurors by counsel and their agents except under the supervision of the court and then, only under extraordinary circumstances). California has adopted a standard for post-trial juror contact that focuses on the intent of the attorney. See CRPC 5-320(D) (lawyer should not ask questions of jurors after discharge "intended to harass or embarrass" or "to influence the juror's actions in future jury service."). Even if the questions affect a juror's future actions or disturb and harass the juror, under this standard, there has been no ethical violation unless the attorney intended such a result. See In the Matter of Respondent A (Review Dept. 1990) 1 Cal. State Bar Ct. Rptr. 255 (interpreting former CRPC 7-106(D)(1975)). See also Lind v. Fong (1st Dist. 1990) 219 Cal.App.3d 516, 268 Cal.Rptr. 359 (letter from defense counsel upon favorable verdict warning jurors of likely attempt by plaintiff's counsel to reverse verdict was an ethical violation because the true intent of the letter was to convince jurors not to cooperate with plaintiff counsel's investigation of juror misconduct; court found an intent to affect future service of jurors).

Although California ethics provisions have adopted a liberal approach to post-trial contact with jurors, California courts and the legislature have limited the ability of attorneys to contact jurors who do not wish to be contacted. Courts have the authority to prohibit contact by attorneys with jurors at the conclusion of the trial. See People v. Cox (1991) 53 Cal.3d 618, 280 Cal.Rptr. 692, 809 P.2d 351 (although attorneys are normally allowed to question jurors about verdict, jurors have right to refuse to answer and court can require by order that attorneys not directly contact jurors). The legislature made it easier for courts to restrict contact between counsel and discharged jurors in 1992 by passing Civ. Proc. Code ¤ 206(f) and Civ. Proc. Code ¤ 237. These statutes provide that the court must seal the names, addresses and telephone numbers of jurors in a criminal case upon the recording of a verdict and that counsel must petition for release with a showing of good cause.

Civ. Proc. Code ¤ 206(f) and Civ. Proc. Code ¤ 237 were passed in response to a Los Angeles case in which a convicted murderer hired a private investigator to locate the jury that convicted him in order to seek revenge and were intended to protect jurors from angry defendants. Jones v. Superior Court (4th Dist. 1994) 26 Cal.App.4th 1202, 31 Cal.Rptr.2d 890. Until 1995, however, when amendments to these statutes were approved, the law was unclear about the degree of control the courts should have over post-trial contact. Several decisions had interpreted the statute as requiring release upon request by counsel. See People v. Simms (2nd Dist. 1994) 24 Cal.App.4th 462, 29 Cal.Rptr.2d 436 (under Civ. Proc. Code ¤ 237, once a convicted defendant shows that he wants the information "for the purpose of developing issues on appeal or for any other lawful purpose," the court must grant the request); People v. Scott (2nd Dist. 1994) 40 Cal.App.4th 215, 31 Cal.Rptr.2d 483 (Civ. Proc. Code ¤ 237 gives defense right to juror information upon request). Others viewed the statutes as expansive of the court's right to control access to jury information. See Jones, 26 Cal.App.4th at 1209 (Civ. Proc. Code ¤ 206(f) gives court right to refuse release of jury information where juror does not consent to contact; court can not only refuse release but can bar contact with jurors after discharge); People v. Duran (5th Dist. 1996) 50 Cal.App.4th 103, 57 Cal.Rptr.2d 635 (counsel requesting jury information under Civ. Proc. Code ¤ 206(f) must show good cause; where counsel was barred by statute of limitations from appealing verdict, he could not show good cause for release of juror information).

Under the 1995 amendments, however, the Simms and Scott cases are no longer controlling on this issue. See People v. Jefflo (2nd Dist. 1998) 63 Cal.App.4th 1314, 1321, 74 Cal.Rptr.2d 622 (Civ. Proc. Code ¤ 206(f) and Civ. Proc. Code ¤ 237 were intended to provide protection to jurors against unwanted contact by defendants). The court in People v. Jefflo clarified that the 1995 amendments were intended to and had the effect of validating the requirement of a showing of good cause before release of juror information. Id. at 1322. Currently, therefore, the burden is on the party desiring juror information to present evidence to the court that juror misconduct may have tainted the verdict. Id. at 1322 (holding that defendant's girlfriend's sworn statement that a juror told her a day before the unanimous conviction that the jury was deadlocked did not show a possibility of misconduct).

Improperly Influencing Judge or Official

Under the CRPC, the issue of improper influence on a judge by an attorney has been most frequently addressed in the context of ex parte communications. [See 3.5:300 Improper Ex Parte Communication, infra]. Some examples of other forms of improper influence that could potentially lead to disbarment appeared in Adams v. Commission on Judicial Performance (1995) 10 Cal.4th 866, 42 Cal.Rptr.2d 606, 897 P.2d 544. In Adams, a judge was removed from office and prohibited from the practice of law until he took and passed a professional ethics exam. The judge had accepted various favors from attorneys that had appeared before him including a victory dinner thrown by the prevailing attorney in a case before the judge below market prices, special treatment in the purchase of two automobiles, special treatment in a car rental agreement, an invitation to a firm fishing trip and a gift of a sweater from prevailing counsel within a year of victory in a case before the judge. In discussing the victory dinner and the sweater, the court indicated that, although in some circumstances such favors might be part of normal social pleasantries, the link between the favors and the case that had come before the judge suggested that accepting them was misconduct (and presumably, giving them was misconduct by the attorneys). In discussing the purchase of one of the automobiles, the court decided that even though the price was within a commercially reasonable range, the purchase was nonetheless misconduct because the judge received a lower price than that offered to the public.

The court in Adams found a few favors to be misconduct but not sufficiently prejudicial to warrant removal. Those actions included allowing an attorney to pay for dinner as a "rain check" for an awards dinner on behalf of the attorney that the judge was unable to attend; accepting the loan of a laptop computer to facilitate the judge in writing a novel that the lending attorney agreed to collaborate on; and a free stay at an attorney's condominium while the judge was thinking about buying it and where all prospective buyers were also allowed to stay for free. Although these favors and gifts were not held to be sufficient to warrant removal of a judge, they could subject an attorney offering the favors to discipline.

The intent of the attorney in making gifts and/or favors to judges is not a consideration in determining whether misconduct has occurred. In Sands v. State Bar (1989) 49 Cal.3d 919, 264 Cal.Rptr. 354, 782 P.2d 595, an attorney was disbarred in part because he took the judge presiding over a pending case to lunch and handed him a $100 bill. The attorney's argument that he was pressured by the judge and forced to choose between compromising his client's interests or paying the judge was rejected by the court. "To our mind, such a 'defense' is reducible to 'good motive.' And, of course, `the general rule [is] that good motive is no defense.'" Id. at 930.

California specifically allows attorneys to contribute to a judge's campaign fund. CRPC 5-300(A). Contributions are not without restriction, however. L.A. Op. 1981-387 concludes that contributions must be made to a fund rather than to the judge directly and reiterated that contributions must be "reasonable in amount, as warranted by the circumstances, and the identity of the donors and the amounts of their gifts should not be revealed to the candidate."

The following comments on CRPC 5-300 Contact With Officials are taken from Karpman & Margolis pages 101-102 with certain conforming changes:

It may be that contributions to campaign funds are exempted from CRPC 5-300(A) as representing free participation in the democratic electoral process. However, there are strict rules governing campaign contributions that must be followed. For example, in another jurisdiction a campaign contribution made to a judge personally as opposed to the "campaign committee", was found prejudicial to the fair administration of justice. In re Lane (1989) 127 Ill.2d. 90, 535 N.E.2d 866.

CRPC 5-300(B) involves ex parte communications on pending matters. There is an abundance of legal analysis as to whether the communication was on the "merits".

Where counsel receives via the court inquiries regarding the evidence from the jury during trial in the form of notes, the court's transmission of those notes to counsel does not constitute a communication with a juror in violation of this rule. People v. Cummings (1993) 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 850 P.2d 1.

When a judgment in a criminal case was final, and the proceeding to recall defendant for sentencing had not commenced, no contested matter was pending. Therefore, defense lawyer's ex parte request that the judge consider the Department of Corrections' recommendation did not violate the predecessor rule to CRPC 5-300(B). People v. Laue (1st Dist. 1982) 130 Cal.App.3d 1055, 182 Cal.Rptr. 99.

In a case involving an ex parte communication between a juvenile court judge and a district attorney considering the issue of the juvenile court's authority to grant a rehearing, the court held that as the communication addressed issues of court's jurisdiction and authority, it was not on the "merits" of the case. The court noted that ex parte contacts erode public confidence in the fairness of the administration of justice. In re Jonathan S. (5th Dist. 1979) 88 Cal.App.3d 468, 151 Cal.Rptr. 810.

CRPC 5-300(C)

CRPC 5-300(C) also encompasses administrative law judges, judges pro tempore, and magistrates.

References

22 ALR4th 917. Legitimacy of disciplinary actions due to attorney's ex parte communication with judge on the merits of the case.

Ethics Opinions

O.C. Op. 94-001 (Not unethical for a lawyer to have social contact with a judge, either alone or in a group, even when the lawyer may be presently appearing before the judge (provided there is no discussion of the pending matter).

C.O.P.R.A.C. Op. 1985-85 (ex parte communication with rehabilitation consultant).

C.O.P.R.A.C. Op. 1984-82 (communication with hearing officer or administrative law judge).

C.O.P.R.A.C. Op. 1984-78 (communication with judicial officers while a case is still pending).

L.A. Op. 1980-387 (ex parte communication by lawyer).

L.A. Op. 1979-2 (communication with judge regarding a pending matter; also addresses communication with another judge regarding a case in which the lawyer is not participating).

S.F. Op. 1973-2. (communication with judge regarding court clerk).

3.5:210      Improperly Influencing a Judge

[See 3.5:200 Improperly Influencing Judge, Juror or Other Official, supra].

3.5:220      Improperly Influencing a Juror

The following comments on CRPC 5-320 Prohibited Contact with Juror are taken from Karpmen & Margolis pages 102-103 with certain conforming changes:

CRPC 5-320 Contact With Jurors

During the criminal trial of a lawyer arrested for possession of marijuana for sale, the lawyer saw one of the jurors at a restaurant, bought drinks for her and her friends, and discussed with her the prosecutor, himself, other witnesses and the judge, as well as his personal religious beliefs. The merits of the case were not discussed. The court found the conversations were intended by the lawyer to create sympathy on his behalf and to constitute an improper attempt to influence the juror and warranted disciplinary consideration. In re Possino (1984) 37 Cal.3d 163, 207 Cal.Rptr. 543, 689 P.2d 115.

The winning party's lawyer in a personal injury case sent a letter to all jurors warning them not to talk if an investigator for the losing party wanted to interview them about the verdict. The court found that the letter was designed to prevent the losing party from communicating with jurors to determine if juror misconduct existed as grounds for new trial, and that it violated the prohibition of former CRPC 7-106(D) (1975) and former CRPC 7-106(E) (1975) [now CRPC 5-320(D) and CRPC 5-320(E)] against intending to harass or embarrass jurors, or attempting to influence them in connection with present or future jury service. Lind v. Medevac, Inc. (1st Dist. 1990) 219 Cal.App.3d 516, 268 Cal.Rptr. 359.

In a disciplinary proceeding, it was not enough to show that some jurors may have been embarrassed or felt harassed by the losing counsel's letter to them, post-trial, discussing his client's losses and lack of insurance coverage. The court held that the State Bar carries the burden of showing, by clear and convincing evidence, that the accused lawyer had specific subjective intent to harass or embarrass one or more jurors, or to influence the juror's actions in future jury service. In the Matter of Respondent A (Review Dept. 1990) 1 Cal. State Bar Ct.Rptr. 255.

References

Civ. Proc. ¤ 206(a) (jurors have absolute right to decline any efforts to probe the particulars of their deliberations).

Pen. Code ¤ 954 (corruptly influencing jurors and others).

C.O.P.R.A.C. Op. 1988-100 (whether lawyer may communicate with juror who has been discharged for misconduct).

C.O.P.R.A.C. Op. 1987-95 (may lawyer, after trial, disclose to jurors evidence that was excluded at trial).

C.O.P.R.A.C. Op. 1976-39 (ethical considerations involved in communication with jurors after trial of criminal case).

3.5:300   Improper Ex Parte Communication

¥ Primary California References: CRPC 5-300, 5-310
¥ Background References: ABA Model Rule 3.5(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:801, 61:903, ALI-LGL ¤ 172, Wolfram ¤ 11.3.3

An attorney is subject to discipline for improper ex parte communication with a judge concerning a matter relevant to a pending case. Heavey v. State Bar (1976) 17 Cal.3d 553, 131 Cal.Rptr. 406, 551 P.2d 1238 (lawyer prohibited from practice for one year and until he passes ethics exam). In addition, a court ruling is subject to reversal if obtained through prejudicial improper ex parte communication. People v. Winnetka (1980) 28 Cal.3d 587, 169 Cal.Rptr. 713, 620 P.2d 163 (commission of minor to Youth Authority reversed where juvenile court referee had instituted a less harsh placement and rehearing was granted by judge upon letter from district attorney without notice to the minor); In re Calhoun (1976) 17 Cal.3d 75, 130 Cal.Rptr. 139, 549 P.2d 1235 (determination of court to impose consecutive terms of sentencing for multiple convictions was reversed where court had received ex parte communication from prosecutor recommending consecutive terms).

A standard of relevancy determines whether an ex parte communication is improper. Although it is clear that ex parte communication is not prejudicial where it does not involve a pending case, the courts will find relevance to a pending case wherever the communication involves something that the other side would be interested in. See People v. Laue (1st Dist. 1982) 130 Cal.App.3d 1055, 1060, 182 Cal.Rptr. 99 (oral ex parte communication between defense counsel for convicted and sentenced party which prompted court to consider recalling sentence did not invalidate eventual recall; "such contacts and communications are held prejudicial only if they relate to the merit of a disputed matter.") Cf., Heavey v. State Bar, 17 Cal.3d at 533 (letters to judge from counsel urging removal of $600 penalty imposed on him for failing to timely answer interrogatories was improper because attorney should have known that opposing counsel would be interested in the determination of the penalty). Mathew Zaheri Corp. v. New Motor Vehicle Board (3rd Dist. 1997) 55 Cal.App.4th 1305, 64 Cal.Rptr.2d 705 (counsel's voicing of fear for his safety because of opposition's threatening and erratic behavior was improper ex parte communication; "the standard generally bars any ex parte communication by counsel to the decisionmaker of information relevant to issues in the adjudication.").

It should be noted that even if an ex parte communication is not prejudicial, it may still be improper and may still subject the attorney to discipline. People v. Laue, 130 Cal.App.3d at 1060 ("ex parte contacts between the court and counsel are ill-advised."). In re Jonathan S. (3rd Dist. 1979) 88 Cal.App.3d 468, 151 Cal.Rptr. 810 ("[u]nless expressly authorized by law, ex parte contacts between the court and counsel are always ill-advised and violate the [CRPC] where such contacts deal with the merits of a pending, contested matter."). A written communication with the court is not prejudicial if the other side has been provided with copies of the communication in time to respond thereto. People v. Darrell (3rd Dist. 1981) 121 Cal.App.3d 916, 175 Cal.Rptr. 682 (letter to court from district attorney requesting rehearing was not improper where copy was sent to minor defendant and minor in fact responded in writing). In the Matter of Chen (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 571 (letter to examiner from defendant responding to examiner's questions with copies to settlement judge and trial judge was not improper).

Sometimes an ex parte contact with a court official may be proper. Blum v. Republic Bank (1999) 73 Cal.App.4th 245, 86 Cal.Rptr.2d 226 (ex parte communication with court clerk to request scheduling of a status conference not improper or sanctionable because did not relate to substance of case). It is important to check local court rules to determine whether they impose special restrictions on ex parte communications. Id.

It is not clear in California whether CRPC 5-300(B) applies to ex parte communication with administrative adjudicators. One ethics opinion concludes that when an agency is performing a judicial or adjudicatory function, ex parte communication with that agency is prohibited. C.O.P.R.A.C. Op. 1984-82. At least one court, has questioned this interpretation of the rule. In Mathew Zaheri Corp. v. New Motor Vehicle Board (1997) 55 Cal.App.4th 1305, 64 Cal.Rptr.2d 705, the court rejected the reasoning of C.O.P.R.A.C. Op. 1984 and held that an Administrative Law Judge is not a "judge" for the purposes of CRPC 5-300(B). Accordingly, an ex parte communication with such an official cannot be a violation of legal ethics rules. Id. The court, however, held that the law of legal ethics is not limited to written law and that the same standards that apply to communication with judges must apply to communication with adjudicatory officials. Id. The court reversed the decision of the New Motor Vehicle Board because of improper ex parte communication by the prevailing party. Id.

The following comments on CRPC 5-310 Prohibited Contact With Witnesses are taken from Karpman & Margolis pages 102-103 with certain conforming changes:

A lawyer, in addition to numerous other violations, counseled his clients not to appear for their depositions in violation of a court order. Snyder v. State Bar (1976) 18 Cal.3d 286, 133 Cal.Rptr. 864, 555 P.2d 1104.

Respondent in a State Bar hearing advised his client and other witnesses (who had been subpoenaed) not to participate and appear. The court held that this conduct violated former CRPC 7-107 (1975). Waterman v. State Bar (1936) 8 Cal.2d 17, 63 P.2d 1133.

A lawyer actively and knowingly assisted her husband in an attempt to evade service of subpoena compelling him to testify as a expert witness in a civil case. She was held in contempt, in addition to having been found to violate Pen. Code ¤ 136.1. In the Matter of Holmes (2nd Dist. 1983) 145 Cal.App.3d 934, 193 Cal.Rptr. 790. She was later disciplined by the State Bar.

The court held that bribery of a witness not to testify in a murder case merits disbarment, after the attorney was convicted on a charge of bribery (Pen. Code ¤ 137). The lawyer had received $1,000 from his client to bribe a witness. He created a "structured payment" plan: the witness would receive an advance of $300 and a subsequent payment of $200 after performance (the false testimony). In re Hanley (1975) 13 Cal.3d 448, 119 Cal.Rptr. 5, 530 P.2d 1381.

A lawyer acquiesced in his investigator's payment of $10 each for two "witnesses" who would testify as having seen an accident. When the "witnesses" became reluctant, the price was increased. The court commented that for a lawyer to actively procure or knowingly countenance commission of perjury is utterly reprehensible and marks the lawyer as unworthy of the practice of law. In re Allen (1959) 52 Cal.2d 762, 344 P.2d 609.

Judicial condemnation of the payment of a "larger" sum to a witness than what is considered reasonable is based upon the presumption that such payment may cause the witness to be biased in favor of the compensating party, which could lead to the witness "coloring" his or her testimony. Crutchfield v. Davidson Brick Co. (2nd Dist. 1942) 55 Cal.App.2d 34, 130 P.2d 183.

Contingent fee contract between plaintiff (in medical malpractice action) and medical legal consulting company did not constitute payment for expert testimony based upon outcome of the case in violation of CRPC 5-310(B). In this case the consulting experts were compensated by the plaintiff on a hourly flat rate, in anticipation of providing trial testimony. Ojeda v. Sharp Cabrillo Hosp. (4th Dist. 1992) 8 Cal.App.4th 1, 10 Cal.Rptr.2d 230.

See also Bureau of Medical Economics v. Cossette (Cal. Super. 1974) 44 Cal.App.3d Supp. 1, 118 Cal.Rptr. 242 (expert witness fees).

References

CRPC 5-200 (trial conduct).

Pen. Code ¤ 136 (intimidation of witness is criminal offense); Pen. Code ¤ 136.1 (dissuading witness from attending trial or other proceeding constitutes criminal offense).

Legal ethics, client perjury and the privilege against self-incrimination. (1986) 13 Hastings Const.L.Q. 545.

C.O.P.R.A.C. Op. 1984-79 (prohibition upon the payment of contingent fees for physician witnesses.

Ojeda v. Sharp Cabrillo Hosp. (4th Dist. 1992) 8 Cal.App.4th 1, 10 Cal.Rptr.2d 230.

L.A. Op. 1977-366 (after a limited consultation, one defendant becomes a witness against the other co-defendant; additionally discusses conflicts issues).

S.D. Op. 1983-9 (defense lawyer's contact with treating physician of plaintiff; duty to notify opposing counsel).

3.5:400   Intentional Disruption of a Tribunal

¥ Primary California References: B&PC ¤¤ 6068(b)(d)(f), 6103, 6106
¥ Background References: ABA Model Rule 3.5(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:901, ALI-LGL ¤ 165, Wolfram ¤ 12.1.3

Although CRPC 5-200 governs the conduct of an attorney in presenting a matter to a tribunal, there is not a general prohibition on disruptive conduct in the CRPC. See also, In the Matter of Dempsey (N.D.Cal. 1986) 632 F.Supp. 908 (citing MR 3.5(c) and DR 7-106(C) as guidance in case involving discipline of attorney for improper commentary in court, accusations against opposing counsel in front of the jury, and lack of knowledge of the court's rules). There are, however, several other statutes in California that provide a basis to discipline an attorney for such conduct.

B&PC ¤ 6068(b) provides that an attorney must "maintain the respect due to the courts of justice and judicial officers." B&PC ¤ 6068(d) provides that an attorney must "employ . . . such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law." B&PC ¤ 6068(f) provides that an attorney must "abstain from all offensive personality, and to advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged." B&PC ¤ 6106 provides that "[t]he commission of any act involving moral turpitude, dishonesty or corruption . . . constitutes a cause for disbarment or suspension." B&PC ¤ 6103 provides that a "willful disobedience or violation of an order of the court requiring him to do or forbear an act connected with or in the course of his profession, which he ought in good faith to do or forbear . . . constitute causes of action for disbarment or suspension."

The Ninth Circuit has held that part of B&PC ¤ 6068(f) is unconstitutionally vague. U.S. v. Wunsch (9th Cir. 1996) 84 F.3d 1110, 1119 ("[c]learly, 'offensive personality' is an unconstitutionally vague term in the context of this statute . . . An 'offensive personality' could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representation of their client's interests, it would be impossible to know when such behavior would be offensive enough to invoke the statute."). California courts can no longer, therefore, rely on this provision to impose sanctions or otherwise discipline attorneys before them. Id. at 1120.

B&PC ¤ 6106 and B&PC ¤ 6103 are most commonly used in conjunction with B&PC ¤ 6068 to impose discipline on attorneys. B&PC ¤ 6103 implicates attorneys who refuse to obey court orders. In the Matter of Boyne (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 389 (attorney failing to pay sanctions as ordered by court where attorney had notice of sanctions committed misconduct under B&PC ¤ 6103). It applies only to orders imposed on a lawyer acting as counsel and not orders imposed on counsel acting as a regular citizen. Maltaman v. State Bar (1987) 43 Cal.3d 924, 950, 239 Cal.Rptr. 687, 741 P.2d 185. Even where B&PC ¤ 6103 does not apply, disobedience of a court order will most likely be prohibited nonetheless under B&PC ¤ 6068. Id. (holding that "under certain circumstances, an attorney's disobedience, even when he acts in a nonprofessional or personal capacity, violates B&PC ¤ 6068(a), (b)).

Although B&PC ¤ 6103 contains "good faith" language, courts have generally not excused attorneys for disobeying orders on the basis of their belief in their right to do so. Id. (attorney guilty of misconduct for disobeying sanctions even though he believed failure to inquire as to his ability to pay made sanctions invalid). In the Matter of Chen (Review Dept. 1993) 2 Cal. State Bar Ct. Rptr. 571 (counsel guilty of misconduct for reneging on settlement agreement despite her assertions that she did not intend the agreement to be binding).

B&PC ¤ 6106 is usually used in conjunction with B&PC ¤ 6068 to impose discipline on attorneys for unprofessional conduct. Maltaman, 43 Cal.3d at 950. Spruance v. Commision on Judicial Qualifications (1975) 13 Cal.3d 778, 119 Cal.Rptr. 841, 532 P.2d 1209 (judge's conduct of treating attorneys in "a cavalier, rude and improper manner" and acting out revenge and animosity was not only sufficient for removal, but was also grounds for disbarment under B&PC ¤ 6106). Snyder v. State Bar (1976) 18 Cal.3d 286, 133 Cal.Rptr. 864, 555 P.2d 1104 (unwarranted charges of bias against superior court judges, concealing facts from judge, and similar acts sufficient for disbarment). But see Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1 (sexual conduct by judge, including display of dildo to public defender and later reference in open court to the dildo and use of vulgar language, was sufficient for removal but not for a B&PC ¤ 6106 violation).

Despite the strong connotation apparent in the phrase "moral turpitude" in B&PC ¤ 6106, courts have been reluctant to allow emotional or mental conditions to excuse misconduct. Snyder, 18 Cal.3d at 293 (holding that attorney's manic-depressive psychosis did not excuse ethical violations and imposing disbarment. "Petitioner's mental and emotional strain is not a mitigating factor in this proceeding where the goal is the protection of the public, the courts and the legal profession."). See also, Read v. State Bar (1991) 53 Cal.3d 394, 425, 279 Cal.Rptr. 818, 807 P.2d 1047 (attorney who abandoned clients, misappropriated funds and misled court "clearly suffered from severe emotional and financial problems" but was nonetheless subject to disbarment). Some courts have found "moral turpitude" even where the attorney asserts a good faith motive. Noland v. State Bar (1965) 63 Cal.2d 298, 303, 46 Cal.Rptr. 305, 405 P.2d 129 (district attorney who suggested to court clerk preparing list of jury pool members that she omit certain jurors violated B&PC ¤ 6106 despite attorney's belief that he was improving the jury system by eliminating pro-defense jurors).

Attorney misconduct can result in a reversal only where the misconduct is found to have caused prejudice to the adverse party. People v. Gay (1993) 4 Cal.4th 1233, 1302, 18 Cal.Rptr.2d 796, 850 P.2d 1 (prosecutor's suggestions that defense counsel was purposefully deceiving the jury were not grounds for reversal where jury was likely to understand them as mere warnings not to be misled). Las Palmas Associates v. Las Palmas Center Associates (2nd Dist. 1991) 235 Cal.App.3d 1220, 1247-1248, 1 Cal.Rptr.2d 301 (attorney guilty of misconduct where he told jury that opposing counsel could bribe judges and were liars but affect on case was negligible, so there was no grounds for reversal).

Courts have also imposed contempt orders on attorneys who engage in unprofessional conduct or disobey court orders. Transaction Commercial Investors v. Firmaterr (1st Dist. 1997) 60 Cal.App.4th 352, 371, 70 Cal.Rptr.2d 449 ("contempt is the primary and long-established remedy available to judges for punishing those who violate court order."). See also, Hawk v. Superior Court (1st Dist. 1974) 42 Cal.App.3d 108, 116 Cal.Rptr. 713 (interjection of counsel's personal observations and beliefs in presenting evidence and referencing matters irrelevant to the case was properly punished as contempt); Ex Parte Ewell (1st Dist. 1925) 71 Cal.App. 744, 236 P. 205 (defamatory statements regarding judge made in order to prejudice minds of jury was properly punished as contempt). Attorneys are not, however, subject to sanctions for such misconduct unless the misconduct is directly related to the filing of pleadings and/or argument of motions. Transaction Commercial, 60 Cal.App.4th at 368.

3.6   Rule 3.6 Trial Publicity

3.6:100   Comparative Analysis of CA Rule

¥ Primary California References: CRPC 5-120
¥ Background References: ABA Model Rule 3.6, Other Jurisdictions
¥ Commentary:

3.6:101      Model Rule Comparison

CRPC 5-120 is almost an exact replica of MR 3.6. The only key difference is that CRPC 5-120 does not have a provision like MR 3.6(d), which provides that MR 3.6 applies to lawyers associated in a firm or government agency with lawyers covered by the rule.

3.6:102      Model Code Comparison

DR 7-107 is significantly more detailed than CRPC 5-120 and there are some key substantive differences between the two rules. First, DR 7-107's basic rule prohibits lawyers participating in an investigation or litigation of a matter to make extrajudicial statements that a reasonable person would expect to be disseminated publicly. Only in the context of jury selection and sentencing in criminal matters, does DR 7-107 further prohibit extrajudicial statements reasonably likely to interfere with the proceeding at hand. See DR 7-107(D), DR 7-107(E). In comparison, CRPC 5-120's general rule is more broad: lawyers participating in the investigation or litigation of a matter may not make extrajudicial statements reasonably expected to be disseminated publicly if the lawyer knows or reasonably should know that it will have a substantial likelihood of causing material prejudice.    

Another key difference is CRPC 5-120(C) which in pertinent part allows a lawyer to make statements reasonably required to protect a client from adverse publicity not initiated by the lawyer or client. DR 7-107 does not have such a provision, although DR 7-107(I) allows a lawyer to reply to charges of misconduct publicly made against him or her.

3.6:200   Improper Extrajudicial Statements

¥ Primary California References: CRPC 5-120
¥ Background References: ABA Model Rule 3.6(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:1001, ALI-LGL ¤ 169, Wolfram ¤ 12.2

The following comments are taken from Karpman & Margolis page 92 with certain conforming changes:

CRPC 5-120 is California's first attempt at prohibiting or restricting out-of-court statements by lawyers involved in pending cases. Since such attorneys are privy to confidential statements of the parties, their statements carry more weight with the public than those of other attorneys who might be discussing the case.

Two crucial factors justify a superior state interest, which trumps the lawyer's First Amendment rights in these circumstances: the timing of the speech and the identity of the speaker.

The State has a justifiable interest in prohibiting lawyer's speech where there is a substantial likelihood that the comment will prejudice a case. Although the State Bar proposed a narrower standard for the Rule, the Supreme Court chose the more restrictive standard of the ABA model.

CRPC 5-120 is applicable to all types of proceedings, and violation can result in sanctions or disbarment.

The new rule has a retaliation clause: if the other side violates the rule in a public attack, a qualified response is permitted. Some commentators suggest that where negative comments are made, opposing counsel has an affirmative duty of competent representation to zealously rebut the remarks.

Some experts have expressed concern that the rule is vague, lacks precision, and will have a chilling effect on lawyer's speech. It has also been argued that silencing lawyers will deprive the public of necessary information.

In Gentile v State Bar of Nevada (1991) 50 U.S. 1030, 115 L.Ed.2d 888, 111 S.Ct. 2720, the United States Supreme Court discussed the Nevada rule which is substantially the same as CRPC 5-120. The Court per Justice Kennedy held that the Nevada rule as interpreted by the Nevada Supreme Court was void for vagueness, failed to provide fair notice to those to whom it was directed, and was so imprecise that discriminatory enforcement was a real possibility. However, per Justice Rehnquist, the Court also found that the "substantial likelihood of material prejudice" standard is a constitutionally permissible balance between the First Amendment rights of attorneys in pending cases and the State's interest in fair trials. Moreover, the Chief Justice stated that the standard is designed to protect the integrity and fairness of the state's judicial system and imposes only narrow and necessary limitations on lawyer's speech, emphasizing the paramount interest of the right to a fair trial.

In general, CRPC 5-120 prohibits lawyers participating in the investigation or litigation of a matter from making extrajudicial statements reasonably expected to be disseminated publicly if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. See CRPC 5-120(A); see also, People v. Marshall (1996) 13 Cal.4th 799, 863, fn.15, 55 Cal.Rptr.2d 347, 919 P.2d 1280.

CRPC 5-120(B) contains several exceptions for certain statements concerning and or relating to a matter. Among the notable exceptions are: statements of information in the public record, see CRPC 5-120(B)(1); see also People v. Marshall (1996) 13 Cal.4th 799, 863, fn.15, 55 Cal.Rptr.2d 347, 919 P.2d 1280 (decided under DR 7-107, which governed trial publicity at time of conduct in question) (prosecutor's statements to reporter conveying information in public record did not violate rule; prosecutor not required to anticipate reporter's inaccuracy), requests for assistance in obtaining evidence, see CRPC 5-120(B)(5) and warnings of danger concerning a person involved in a matter where there is a reasonable belief that substantial harm to an individual or the public interest is likely, see CRPC 5-120(B)(6). Also, CRPC 5-120(C) provides an exception for statements reasonably required to protect a client from adverse publicity not initiated by the lawyer or client. But see, Rothman v. Jackson (2nd Dist. 1996) 49 Cal.App.4th 1134, 1146, 57 Cal.Rptr.2d 284 (litigation privilege does not apply to defamatory extrajudicial statements made by attorneys in defense of their clients).

3.6:300   Permissible Statements

¥ Primary California References:
¥ Background References: ABA Model Rule 3.6(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 69:1001, ALI-LGL ¤ 169, Wolfram ¤ 12.2

[See 3.6:200 Improper Extrajudicial Statements, supra].

3.6:400   Responding to Adverse Publicity

¥ Primary California References:
¥ Background References: ABA Model Rule 3.6(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:100l, ALI-LGL ¤ 169, Wolfram ¤ 12.2

[See 3.6:200 Improper Extrajudicial Statements, supra].

3.7   Rule 3.7 Lawyer as Witness

3.7:100   Comparative Analysis of CA Rule

¥ Primary California References: CRPC 5-210
¥ Background References: ABA Model Rule 3.7, Other Jurisdictions
¥ Commentary:

3.7:101      Model Rule Comparison

MR 3.7(a) generally prohibits a lawyer from acting as both advocate and witness ("advocate-witness rule"). However, MR 3.7(a)(1)-(3) enumerates three situations in which an advocate may testify, including: (1) testifying to an uncontested matter, (2) testifying to the nature and value of legal services rendered, and (3) when disqualification would work substantial hardship upon the client. Finally, MR 3.7(b) makes clear that the advocate-witness rule does not apply when a lawyer in the advocate's law firm is likely to be called as a witness.

CRPC 5-210 retains the general advocate-witness rule, but the exceptions to the rule differ in scope and substance with MR 3.7. MR 3.7 encompasses all situations where the lawyer acts as an "advocate at trial," whereas CRPC 5-210 applies to only those situations in which the lawyer acts as an "advocate before a jury." Additionally, MR 3.7 requires that the lawyer is "likely to be a necessary witness." CRPC 5-210 applies when the lawyer advocates "before a jury which will hear testimony from the member." However, the discussion of CRPC 5-210 makes clear that the rule intends to apply to the member who "knows or should know" that he or she ought to be called in the litigation.

In addition to differences in scope, CRPC 5-210 and MR 3.7 also differ in their substantive exceptions to the advocate-witness rule. MR 3.7(a)(1) and (2) and CRPC 5-210(A) and (B), in identical language, allow the advocate to testify to uncontested matters and to the nature and value of legal services rendered, respectively. However, MR 3.7(a)(3) allows the advocate to testify when disqualification will work a substantial hardship on the client. This exception is not included in CRPC 5-210. Instead, this exception is seemingly subsumed into the broader CRPC 5-210(C), allowing the advocate to testify when the advocate has the informed, written consent of the client, or, in the case of a member representing the People or a government entity, consent of the head of the office in which the member is employed.

Finally, both CRPC 5-210 and MR 3.7 are consistent in that they do not disqualify the advocate or his law firm when a lawyer from his law firm will be called to testify.

3.7:102      Model Code Comparison

The DR contains no single comprehensive provision incorporating the advocate-witness rule. Rather, the conduct of the advocate who is also a potential witness is governed by DR 5-101(B) and DR 5-102(A)-(B). These DR provisions differ substantially in form, scope and substance from CRPC 5-210.

First, both DR 5-101(B) and DR 5-102(A)-(B) apply when the advocate is a potential witness and when a lawyer in that advocate's law firm is a potential witness.

Second, the Model Code applies different standards to the conflict that arises before employment is accepted and that which arises after employment has been undertaken, whereas CRPC 5-210 does not distinguish between the two, presumably applying the same standard regardless.

DR 5-101(B) governs those conflicts arising before a lawyer has accepted employment. The Rule requires that the lawyer not accept employment if "he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness." Despite the imputed disqualification, the "knows or it is obvious" language is similar to the "knows or should know" language in the CRPC 5-210 discussion. Also, DR 5-101(B)(1) and (3) allows the advocate to testify to uncontested matters or to the nature and value of legal services rendered, respectively. However, unlike CRPC 5-210, DR 5-101(B) contains no provision allowing the client to consent to the lawyer acting in this dual capacity. Additionally, this Model Code provision contains two exceptions not included in CRPC 5-210, allowing the advocate to testify to a matter of formality where there is no reason to believe that substantial evidence will be offered in opposition, and when refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm in the case, see DR 5-101(B)(2) and (4), respectively.

DR 5-102 governs the withdrawal of counsel when the conflict arises after the lawyer has undertaken employment. Similar to CRPC 5-210, the rule applies when the lawyer "learns or it is obvious" of the potential conflict. Unlike CRPC 5-210, DR 5-102 further distinguishes between the lawyer called on behalf of the client, and the lawyer called other than on behalf of the client, in DR 5-102(A) and DR 5-102(B), respectively. DR 5-102(A) differs from CRPC 5-210 in the same manner as DR 5-101(B) in that DR 5-102(A) requires withdrawal except that the lawyer or a lawyer in his firm may testify in the four circumstances enumerated in DR 5-101(B). DR 5-102(B) allows the lawyer to continue representation until the advocate-witness's testimony is or may be prejudicial to that advocate's client. DR 5-102(B) has no counterpart in CRPC 5-210.

3.7:200   Prohibition of Advocate as Witness

¥ Primary California References: CRPC 5-210, 3-700
¥ Background References: ABA Model Rule 3.7(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:501, ALI-LGL ¤ 168, Wolfram ¤ 7.5

Generally, CRPC 5-210 prohibits a lawyer from acting as both advocate and witness before a jury in the same trial. See In re M.B.K., Inc. (C.D. Cal. 1987) 92 B.R. 429, 435. However, the advocate-witness rule may be overcome by satisfying one of three enumerated exceptions. See CRPC 5-210(A)-(C). First, an advocate may testify to an uncontested matter. See Graphic Process Co. v. Superior Court (2nd Dist. 1979) 95 Cal.App.3d 43, 156 Cal.Rptr. 841 (without citing this exception, found matter counsel could testify to was not contested and could not be basis for disqualification). Second, the advocate may testify to the nature and value of legal services rendered in the case. See Alhambra Municipal Court Dist. v. Bloodgood (2nd Dist. 1982) 137 Cal.App.3d 29, 45, 186 Cal.Rptr. 807. Finally, the advocate may testify with the informed written consent of the client. See Lyle v. Superior Court (4th Dist. 1980) 122 Cal.App.3d 470, 482, 175 Cal.Rptr. 918.

The advocate-witness rule has been applied in three areas. See Wolfram ¤ 7.5. While infrequent and rarely severe, a violation may lead to professional discipline. More importantly, the rule provides a basis for a motion by opposing counsel to disqualify the advocate. See Comden v. Superior Court (1978) 20 Cal.3d 906, 915, 145 Cal.Rptr. 9, 576 P.2d 971. Under CRPC 5-210 this has become less effective for opposing counsel since the client may now consent to the lawyer acting in a dual capacity. See Lyle v. Superior Court (4th Dist. 1981) 122 Cal.App.3d 470, 482, 175 Cal.Rptr. 918. Additionally, California courts have recognized that the rule is not intended to personally benefit the moving party, and when an adverse party declares an intent to disqualify because that party intends to call opposing counsel, the court must first determine whether the member's testimony is genuinely needed. See Reynolds v. Superior Court (1st Dist. 1986) 177 Cal.App.3d 1021, 1027, 223 Cal.Rptr. 258.

The final area of application is an evidentiary rule automatically barring an advocate from testifying in the same case. However, either by statute or decision, every jurisdiction has removed the automatic bar. See Wolfram ¤ 7.5. Significantly, California courts have recognized that an automatic bar may, at times, violate a party's constitutional rights. See People v. Goldstein (1st Dist. 1983) 130 Cal.App.3d 1024, 1032, 182 Cal.Rptr. 207. For example, in Goldstein, the trial court violated the defendant's due process rights when it refused to allow the defense counsel to testify to inconsistent statements made by a prosecution witness after the defense counsel moved to be relieved as counsel to testify. See People v. Goldstein (1st Dist. 1983) 130 Cal.App.3d 1024, 1032, 182 Cal.Rptr. 207; see also People v. Marquez (1992) 1 Cal.4th 553, 574, 3 Cal.Rptr.2d 710, 822 P.2d 418 (trial court may not deny defendant the right to present impeaching evidence through testimony of counsel).

California courts have recognized the various rationales for the advocate-witness rule, the most commonly accepted being: 1) interest or appearance of interest in the outcome of the trial subjects advocate testimony to impeachment, 2) opposing counsel is handicapped in cross-examination, 3)the advocate is put in the unseemly position of arguing his own credibility, and 4) the role of advocate and witness are entirely inconsistent and should not be assumed by one person. In addition, a fifth generally accepted basis for the rule is to avoid the appearance of impropriety. See People ex rel. Younger v. Superior Court (4th Dist. 1978) 86 Cal.App.3d 180, 150 Cal.Rptr. 156; see also 6 Wigmore, Evidence (Chadbourn rev. 1976) ¤ 1911, p. 775-776 ("the most potent and most common reason judicially advanced").

Despite generally disqualifying the advocate-witness, CRPC 5-210 differs significantly from the Model Rule and Model Code provisions in that its limited scope and substantive exceptions greatly diminish the effective advocate-witness prohibition. See CRPC 5-210. The scope of CRPC 5-210 is limited to situations where the advocate will act as advocate and witness in front of the same jury. See In re Mortgage & Realty Trust (Bankr. C.D. Cal. 1996) 195 B.R. 740, 757; see also People v. Superior Court (Hollenbeck) (5th Dist. 1978) 84 Cal.App.3d 491, 148 Cal.Rptr. 704 (under old CRPC rule extending to "trial" representations, court recognized that advocate-witness credibility problem does not exist at pretrial hearings in front of judge). Substantively, CRPC 5-210 and the MR differ significantly in that under CRPC 5-210 the advocate-witness conflict can almost always be overcome by obtaining the informed written consent of the client. See Lyle v. Superior Court (4th Dist. 1981) 122 Cal.App.3d 470, 482, 175 Cal.Rptr. 918. As one commentator has noted: "where only disqualified lawyers once littered the California stage, one would now expect to find only the carcasses of the ignored interests of opposing parties." Wolfram ¤ 7.5.

Perhaps the best explanation for California's preference for favoring the choice of the client over the strict application of the rule is backlash from the most oft cited and highly criticized advocate-witness case, Comden v. Superior Court (1978) 20 Cal.3d 906, 915, 145 Cal.Rptr. 9, 576 P.2d 971. In Comden, the trial court disqualified actress Doris Day Comden's trial counsel because a member of his law firm negotiated the contract subject to dispute, and could potentially testify to statements by the adverse party that would tend to prove Day's breach of contract claim. See Id. at 911-912. There were other witnesses who could testify to these facts. See Id. at 912-913. Despite Day's request to postpone the decision until further discovery eliminated the need to call the lawyer, the court disqualified the advocate and his entire firm, citing the necessity to maintain the integrity of the profession and avoid the appearance of impropriety. See Id. at 912-913, 915. Within months, a bar-sponsored amendment to the advocate-witness rule was presented and eventually approved by the court. It allowed a client's written consent to resolve the advocate-witness conflict. See Wolfram ¤ 7.5.

Amidst this backdrop, California courts have favored the client's choice of counsel over the strict application of the rule, even before the consent amendment was approved by the court. See Harris v. Superior Court (1st Dist. 1979) 97 Cal.App.3d 488, 493-94, 158 Cal.Rptr. 807. In Harris, the court noted that the client had consented to the lawyer acting in a dual capacity, and because the disqualification would result in the plaintiff representing itself or abandoning the case, the court allowed the advocate to testify under the previous "substantial hardship" exception, similar to MR 3.7(a)(3). See Harris v. Superior Court (1st Dist. 1979) 97 Cal.App.3d 488, 493-494, 158 Cal.Rptr. 807. Under CRPC 5-210, a client who would have claimed a "substantial hardship" if the advocate were disqualified, now need only consent to the lawyer acting in a dual capacity. Cf. Harris v. Superior Court (1st Dist. 1979) 97 Cal.App.3d 488, 493-494, 158 Cal.Rptr. 807.

Despite the absolute language of the rule, the courts have retained some discretion in deciding whether to disqualify counsel. See Lyle v. Superior Court (4th Dist. 1981) 122 Cal.App.3d 470, 482, 175 Cal.Rptr. 918. However, the amendment changed the emphasis of the inquiry, and a court may exercise its discretion only after a convincing demonstration of detriment to the opponent or injury to the integrity of the judicial process. See Id. Accordingly, the client's consent is given great weight. See Reynolds v. Superior Court (1st Dist. 1986) 177 Cal.App.3d 1021, 1027, 223 Cal.Rptr. 258; Lyle v. Superior Court (4th Dist. 1981) 122 Cal.App.3d 470, 482, 175 Cal.Rptr. 918. In addition, given the constitutional dimension, a criminal defendant's consent may be implied simply by the defense counsel's express desire to testify. See People v. Goldstein (1st Dist. 1983) 130 Cal.App.3d 1024, 1032, 182 Cal.Rptr. 207.

In L.A. Op. 1982-399, a law firm, which was serving as co-counsel in a pending copyright infringement case, intended to call a former associate as a witness to testify on two substantive points. The committee generally discussed the advocate-witness rule and the general duty to withdraw when the conflict arises. However, the committee decided that under the precursor to the current rule, the firm could continue its representation with the consent of the client.

In Reich v. Club Universe (2nd Dist. 1981) 125 Cal.App.3d 965, 971-72, 178 Cal.Rptr. 473 an attorney was both the named plaintiff and the advocate in a class action suit. As plaintiff the advocate was also a potential witness. See Reich v. Club Universe (2nd Dist. 1981) 125 Cal.App.3d 965, 971-72, 178 Cal.Rptr. 473. The court ruled that the difficulty in applying the consent doctrine literally in class actions suggested that the court retain the discretion to permit or not permit a lawyer from being a named plaintiff and advocate for a class. See Reich v. Club Universe (2nd Dist. 1981) 125 Cal.App.3d 965, 971-72, 178 Cal.Rptr. 473.

There are a number of opinions of limited importance or limited relevance given the shift in position since Comden v. Superior Court (1978) 20 Cal.3d 906, 145 Cal.Rptr. 9, 526 P.2d 971.

In Brown v. DeRugeris (1st Dist. 1979) 92 Cal.App.3d 895, 155 Cal.Rptr. 301, the court found that an opening statement does not constitute testifying, and thus the advocate-witness rule does not apply. See Brown v. DeRugeris (1st Dist. 1979) 92 Cal.App.3d 895, 155 Cal.Rptr. 301.

In People ex rel. Younger v. Superior Court (4th Dist. 1978) 86 Cal.App.3d 180, 150 Cal.Rptr. 156, the court found that the prosecutor had acted improperly by acting as both witness and advocate at the preliminary hearing.

In L.A. Op. 1977-367, a member of the trial advocate's law firm was a director, officer, and principal shareholder of the corporate client. Because of his association with the corporation he was also a potential witness. The committee found that even if the lawyer was on leave from the law firm, the advocate must be disqualified unless doing so would work a substantial hardship on the client.

In People v. Guerrero (2nd Dist. 1975) 47 Cal.App.3d 441, 120 Cal.Rptr. 732, the court found that the prosecutor had violated the advocate-witness rule but that the error was not prejudicial since the testimony related to only minor matters and the prosecution did not argue his own credibility to the jury.

In L.A. Op. 1971-323, a law firm was representing a defendant corporation in a suit with additional defendants. The law firm previously represented one of the named co-defendants and rendered legal services to the other named co-defendants. The committee held that a member of the law firm, if called by the plaintiff, could testify until the testimony became prejudicial to the client. Furthermore, the committee held that the ends of justice required the law firm to continue the representation of the client because of its past involvement in the corporate defendant's activities, regardless of who called the law firm member as a witness.

In L.A. Op. 1969-312, in reconsidering a previous ruling, the committee held that a trial counsel may testify to formal matters, such as attestation or custody of an instrument or in rare cases where the testimony is essential to the ends of justice. Also, a partner or associate of the advocate may testify where his testimony relates to the performance of his professional duties or where he has a long and intimate familiarity with the litigation. Finally, if a lawyer is a material witness to matters outside his professional duties, neither he nor a member of his firm may accept employment as trial counsel.

The following comments on CRPC 5-210 Member as Witness are taken from Karpman & Margolis pages 98-100 with certain conforming changes:

A lawyer may have to decline representation, or seek withdrawal from a case, if he or she may be called as a witness at trial. The lawyer's effectiveness as an advocate could be compromised if his or her credibility as a witness were called into question.

A violation of this rule can result in State Bar discipline and give rise to a motion to disqualify in a civil proceeding. Instances of discipline for violation of this rule are rare. As with all motions to disqualify, the merit of the motion must be balanced with the party's right to counsel of his or her choice, and with the possibility that the opposing party is making tactical use of a disqualification motion for delay or other strategic advantages.

The 1989 revision of the rule limits its application to the testimony of a lawyer acting as a advocate before a jury, and omits the former distinction between testimony for or against a client.

Cases

A closely divided Supreme Court (4-3), in a case decided before the amendment of CRPC 5-210, stated that the basic purpose of the rule is to protect the client from his lawyer's impaired credibility and ineffective advocacy when testifying as a witness. The rule requires that the court first consider whether the lawyer's testimony will be necessary to protect the client's interest and, if it concludes such testimony will likely be necessary, that it order a timely withdrawal consistent with minimizing prejudices that may result from the substitution of counsel. Whether a lawyer ought to testify is a discretionary determination based upon the court's considered evaluation of all pertinent factors including: the significance of the matters to which the lawyer might testify, the weight his or her testimony might have in resolving such matters, and the availability of other witnesses or documentary evidence by which the matters may be independently established. While the harm recedes when the lawyer-witness is not the trial counsel but only a member of trial counsel's firm, the opportunity still exists for opposing counsel to argue that the lawyer-witness's stake in the litigation influences counsel's objectivity. The dissenting opinion stressed that the right to counsel of one's choice was of greater significance than "appearances of impropriety." The dissent stated that the court should consider a client's consent to the conflict. If a party is willing to accept the possibility of less than effective counsel because of counsel's testimony as a witness, neither the party's opponent nor the trial court should be able to assert this choice against a party without clear evidence of detriment to opposing counsel or injury to the integrity of the judicial process. Comden v. Superior Court (1978) 20 Cal.3d 906, 145 Cal.Rptr. 9, 576 P.2d 971. (Although the rule was amended to overcome the Comden ruling, Comden is still considered a seminal case and was the genesis of the term "Comden motion" to refer to a disqualification motion.)

The amended rule changes the emphasis that the trial court must place upon competing interests in reaching its decision. The trial court should resolve the close case in favor of the client's right to representation of a lawyer of his or her choice. However, the rule does not affect the court's discretion to disqualify counsel who testifies in a jury trial even when the client has given informed written consent. Lyle v. Superior Court (4th Dist. 1981) 122 Cal.App.3d 470, 475, 175 Cal.Rptr. 918.

Client consent is not conclusive, but is afforded great weight. Regardless of consent, however, a court may disqualify counsel whose testimony would be prejudicial to the client. Reynolds v. Superior Court (1st Dist. 1986) 177 Cal.App.3d 1021, 223 Cal.Rptr. 258.

The testimony of one member of the district attorney's office does not justify recusal of the whole office. People ex rel. Younger v. Superior Court (4th Dist. 1978) 86 Cal.App.3d 180, 150 Cal.Rptr. 156.

The obligations of a witness and an advocate are diametrically opposed; the role of an advocate demands adversarial conduct and loyal promotion of the client's goals whereas the duty of a witness is to impartially reiterate facts. People v. Guerrero (2nd Dist. 1975) 47 Cal.App.3d 441, 120 Cal.Rptr. 732.

A defendant in a criminal matter was denied due process of law when his counsel was denied the right to offer testimony of prior inconsistent statements of a prosecution witness to impeach the witness's credibility. The court had previously denied counsel's motion to withdraw on the basis of being a prospective witness. People v. Goldstein (1st Dist 1982) 130 Cal.App.3d 1024, 182 Cal.Rptr. 207.

A lawyer was prohibited from testifying where he knew at the inception of the litigation his testimony could be needed, yet failed to withdraw. His knowledge, coupled with his failure to withdraw, created an "appearance of impropriety." In re M.B.K., Inc. (C.D. Cal. 1987) 92 B.R. 429.

See also People v. Marquez (1992) 1 Cal.4th 553, 3 Cal.Rptr.2d 710, 822 P.2d 418 (in a murder prosecution, defense counsel was permitted to testify as an impeachment witness, in order to attack the credibility of a prosecution witness).

References

CRPC 3-700 (termination of employment; where a lawyer knows or should know that he or she ought to be called upon to testify, withdrawal may be the only proper solution).

Addressing issues in the Comden case. 67 Cal.L.Rev. 824.

Sutton, The testifying advocate. 41 Tex.L.Rev. 477.

5 ALR4th 574. Disqualification of attorney because member of his firm is or ought to be a witness in caseÑmodern view.

L.A. Op. 1982-399 (calling a former associate as a witness).

3.7:300   An Affiliated Lawyer as Advocate (Imputed Disqualification)

¥ Primary California References: CRPC 5-210
¥ Background References: ABA Model Rule 3.7(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:501, ALI-LGL ¤ 168, Wolfram ¤ 7.5, 7.6

While both MR 3.7 and CRPC 5-210 generally prohibit the advocate from serving as witness, neither rule disqualifies the advocate when a lawyer from the advocate's firm will serve as a witness.

3.8   Rule 3.8 Special Responsibilities of a Prosecutor

3.8:100   Comparative Analysis of CA Rule

¥ Primary California References: CRPC 5-110, 5-120, 5-220, Cal. Penal Code 1054
¥ Background References: ABA Model Rule 3.8, Other Jurisdictions
¥ Commentary:

3.8:101      Model Rule Comparison

MR 3.8 furnishes a comprehensive list of responsibilities of a prosecutor involved in trying a defendant in a criminal case. The MR 3.8 Comment stresses that a prosecutor has a duty unlike other attorneys to take the role of being "a minister of justice and not simply that of an advocate."

MR 3.8 differs significantly in its treatment of this issue from the CRPC in that California has no equivalent, comprehensive rule. The result is that none of the paragraphs of the CRPC correspond exactly to any paragraph of the MR, and four of the paragraphs of the latter have no corresponding provision whatsoever in the CRPC: paragraph (b), calling for a prosecutor to make reasonable efforts to ensure that the accused has had a reasonable opportunity to obtain counsel; paragraph (c), prohibiting a prosecutor from seeking to obtain from an unrepresented defendant a waiver of pretrial rights; paragraph (e), calling for prosecutors to exercise reasonable care to prevent others assisting or associated with the prosecutor from making extrajudicial statements that would violate MR 3.6; and paragraph (f), regarding subpoenas to lawyers in grand jury or other criminal proceedings.

However, there are three provisions in the CRPC that contain language similar to provisions in MR 3.8. For example, CRPC 5-110, providing that a lawyer in government service shall not bring or maintain criminal charges when he or she knows or should know that the charges are not supported by probable cause, is similar to MR 3.8(a), which requires a prosecutor to "refrain from prosecuting" such claims. Note, however, that while the MR provision requires disclosure of information known to the prosecutor to negate or mitigate a defendant's guilt, CRPC 5-110 substitutes the language "knows or reasonably should have known." Unlike MR 3.8(a), CRPC 5-110 additionally provides that a lawyer who is responsible for prosecuting a case must promptly advise the court if the prosecutor later becomes aware that the charges are not supported by probable cause.

CRPC 5-120, prohibiting prosecutors from making extrajudicial statements that serve to heighten the condemnation of the accused and serve no legitimate law enforcement purpose, is very similar to paragraph (g) of the MR. The significant difference between the two is that CRPC 5-120 applies equally to both prosecutors and defense counsel, while the MR applies only to prosecutors.

Finally, while CRPC 5-220 is extremely broad, it is interpreted by California courts in accord with MR 3.8(d), even though CRPC 5-220 applies to all attorneys, not just prosecutors. Note, in California however, prosecutors also have a statutory duty to disclose to the defense any exculpatory evidence if "it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigative agencies." See Pen. Code ¤ 1054.1(e).

3.8:102      Model Code Comparison

DR 7-103(A) provides "a public prosecutor . . . shall not institute . . . criminal charges when he knows or it is obvious that the charges are not supported by probable cause." Further, DR 7-103(B) provides that "a public prosecutor . . . shall make . . . timely disclosure . . . of the existence of evidence, known to the prosecutor . . . that tends to negate the guilt of the accused, mitigate the degree of the offense, or reduce the punishment."

The DR 7-103 Comment reiterates the message of both the California and Model Rules that "[t]he responsibility of a public prosecutor differs from that of the usual advocate; his duty is to seek justice, not merely to convict." See Canon 7, EC 7-13; MR 3.8 Comment; Merrill v. Superior Court (4th Dist. 1994) 27 Cal.App.4th 1586, 1594, 33 Cal.Rptr.2d 515.

As of July 1996, there were only three California court decisions that directly cited to DR 7-103(A), or DR 7-103(B). See People v. Gonzalez (1990) 51 Cal.3d 1179, 1261, 275 Cal.Rptr. 729, 800 P.2d 1159; People v. Garcia (4th Dist. 1993) 17 Cal.App.4th 1169, 1179, 22 Cal.Rptr.2d 545; Hawk v. Superior Court in and for County of Solano (1st Dist. 1974) 42 Cal.App.3d 108, 127, 116 Cal.Rptr. 713.

3.8:200   The Decision to Charge

¥ Primary California References: CRPC 5-110, 3-200, 5-200
¥ Background References: ABA Model Rule 3.8(a), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 156, Wolfram ¤ 13.10

Both CRPC 5-110 and MR 3.8(a) prohibit a prosecutor in a criminal case from prosecuting a charge that the prosecutor knows is not supported by probable cause. Under the MR section on terminology, "knows" means "actual knowledge of the fact in question," although a "person's knowledge may be inferred from other circumstances." See ABA/BNA ¤ 61:608. Accordingly, a prosecutor has broad discretion in determining whether to bring charges. See ABA/BNA ¤ 61:608. Simply put, as long as probable cause exists for believing the defendant committed the crime, the decision to prosecute rests entirely within the prosecutor's discretion. See Bordenkircher v. Hayes (1978) 434 U.S. 357, 364, 54 L.Ed.2d 604, 98 S.Ct. 663.

Note, however, while MR 3.8 provision requires disclosure of information known to the prosecutor to negate or mitigate a defendant's guilt, CRPC 5-110 substitutes "knows or reasonable should have known." Thus, CRPC 5-110 appears to construe the discretion of a prosecutor somewhat more narrowly than MR 3.8.

The prosecutor's discretion to charge is further checked by a line of United States Supreme Court decisions addressing this issue. In Bordenkircher v. Hayes (1978) 434 U.S. 357, 364, 54 L.Ed.2d 604, 98 S.Ct. 663, for example, the United States Supreme Court held that a prosecutor may not base his or her decision to charge on impermissible factors such as race or religion. Additionally, a prosecutor may not deliberately treat someone differently in the decision to charge and/or prosecute based on the defendant's exercise of his or her constitutional rights. See Blackledge v. Perry (1974) 417 U.S. 21, 40 L.Ed.2d 628, 94 S.Ct. 2098.

However, while offering guarantees of protection to the accused, the United States Supreme Court makes it difficult for defendants to prove intent to discriminate in order to receive that promised protection. See Wayte v. United States (1985) 470 U.S. 598, 610, 84 L.Ed.2d 547, 105 S.Ct. 1524 (finding that the decisionmaker must be shown to have selected a particular course of action at least in part because of and not merely in spite of its adverse affects upon an identifiable group); McCleskey v. Kemp (1987) 481 U.S. 279, 298-299, 95 L.Ed.2d 262, 107 S.Ct. 1756 (concluding that a defendant must show current intent, not merely historical evidence, to prove that the decisionmaker acted with discriminatory purpose).

Absent motives of prejudice, political animus, or revenge, the prosecutor's office enjoys wide discretion in making its decision to charge and maintain charges. See Washington v. United States (D.C. App. 1980) 434 A.2d 394.

In considering the decision to charge in California, the California Supreme Court has found that the prosecutor's role is unique within the criminal system in that not only must the district attorney diligently discharge the duty of prosecuting individuals accused of criminal conduct, but the prosecutor must also refrain from seeking victory at the expense of the defendant's constitutional rights. See People v. Trevino (1985) 39 Cal.3d 667, 681, 217 Cal.Rptr. 652, 704 P.2d 719. Thus, under Trevino, the prosecution is obligated to respect the defendant's right to a fair and impartial trial in compliance with the process of the law. People v. Trevino (1985) 39 Cal.3d 667, 681, 217 Cal.Rptr. 652, 704 P.2d 719.

In L.A. Op. 1984-429, a prosecutor in a criminal trial asked the court to dismiss the case after putting on her first witness. The court denied the motion and the prosecutor then conferred with her superiors who instructed her to argue the case despite her confidence that the defendant was not guilty of the alleged crimes. The Committee was asked if, under these circumstances, it was proper for the prosecutor to argue the case or whether she should, instead, urge dismissal, refuse to argue the case, or take some other action. In this case, the Committee found that the prosecutor had complied with former CRPC Rule 7-102 (1975) (now CRPC 5-110). The Committee explained that the existence of probable cause is not subject to precise measurement, and opinions can vary between prosecution and defense, within the prosecutor's office and sometimes between the prosecution and the court. The Committee concluded that when the court determines that probable cause exists, it is proper for the prosecution to complete the presentation of the case so long as there was no basis for mandatory withdraw.

In C.O.P.R.A.C. Op. 1989-106, the Committee was asked to consider the ethical propriety of release-dismissal agreements between a prosecutor and a defendant whereby the prosecutor agreed to seek a dismissal of a criminal prosecution against the defendant provided that the defendant agreed to stipulate that there was probable cause for her arrest, thereby releasing the police agency from any potential civil liability. The Committee found that a prosecutor's offer to dismiss a colorable criminal action in exchange for a release in civil liability was tantamount to a "threat," and thus improper. The Committee reasoned that "there is often an imbalance of power between the prosecution and the individual defendant" and the "nature of this relationship makes it difficult to consider a release-dismissal agreement by the same standard as other agreements."

The following comments on CRPC 5-110 are taken from Karpman & Margolis pages 90-91 with certain conforming changes:

This rule, CRPC 5-110 Performing the Duty of Member in Government Service, recognizes that the responsibility of a public prosecutor differs from that of the usual advocate. His or her duty is to seek justice, not merely to convict. This special duty exists because the prosecutor represents the power of the sovereign, and should therefore use restraint in the discretionary exercise of governmental powers, such as in the selection of cases to prosecute. People v. Superior Court, Cty. of San Bernardino (4th Dist. 1978) 86 Cal.App.3d 180, 204, 150 Cal.Rptr. 156. As Justice Douglas once warned, "[t]he function of the prosecutor . . . is not to tack as many skins of victims as possible to the wall. His function is to vindicate the right of people as expressed in the laws and give those accused of crime a fair trial." Donnelly v. DeChristoforo (1974) 416 U.S. 637, 648-649, 40 L.Ed.2d 431, 94 S.Ct. 1868.

Cases

The prosecutor may not bring charges against an individual unless they are supported by probable cause. Once charges are instituted, the prosecutor must reveal to the Court any information which negates the existence of probable cause. People v. Trevino (1985) 39 Cal.3d 667, 680-681, 217 Cal.Rptr. 652, 704 P.2d 719.

References

CRPC 3-200 (prohibited objectives of employment); CRPC 5-220 (suppression of evidence).

DR 7-103, EC 7-13; Standard 3-3.9(a), American Bar Association Standards for Criminal Justice, The Prosecution Function (2d Ed. 1980).

B&PC ¤ 6131.

13 Hastings L.Q. 537 (prosecutorial ethics).

L.A. Op. 1984-429 (conduct of prosecutor who does not believe in her case).

3.8:300   Efforts to Assure Accused's Right to Counsel

¥ Primary California References:
¥ Background References: ABA Model Rule 3.8(b), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 156, Wolfram ¤ 13.10

Under MR 3.8(b), a prosecutor must make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining counsel and has been given reasonable opportunity to obtain counsel. There is no corresponding provision in the CRPC.

3.8:400   Seeking Waivers of Rights from Unrepresented Defendants

¥ Primary California References:
¥ Background References: ABA Model Rule 3.8(c), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 156, Wolfram ¤ 13.10

MR 3.8(c) precludes prosecutors from seeking a waiver of important pretrial rights, such as the right to a preliminary hearing, from an unrepresented accused, even though this conduct may be permitted as a matter of constitutional law. See ABA/BNA ¤ 61:612. There is no corresponding provision in the CRPC.

3.8:500   Disclosing Evidence Favorable to the Accused

¥ Primary California References: CRPC 5-220, Cal. Penal Code 1054
¥ Background References: ABA Model Rule 3.8(d), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 156, Wolfram ¤ 13.10.5

Under MR 3.8(d), a prosecutor in a criminal case must make a timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense. Further, under MR 3.8(d), the prosecutor must disclose to the defense and to the tribunal "all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal." The MR 3.8(d) Comment recognizes that to invoke an appropriate protective order from the tribunal, the disclosure of the information to the defense counsel must result in "substantial harm to an individual or to the public interest."

California's equivalent to MR 3.8(d), CRPC 5-220, directs only that an attorney not "suppress evidence that the attorney or the attorney's client has a legal obligation to reveal or produce." Although CRPC 5-220 applies equally to prosecutors and defense counsel, California courts place a higher standard of responsibility upon prosecutors, as prosecutors are considered to have a higher legal obligation to divulge "substantial material evidence favorable to the accused." See Merrill v. Superior Court (4th Dist. 1994) 27 Cal.App.4th 1586, 1594, 33 Cal.Rptr.2d 515 (quoting People v. Ruthford (1975) 14 Cal.3d 399, 405-406, 121 Cal.Rptr. 261, 534 P.2d 1341); see also Brady v. Maryland (1963) 373 U.S. 83, 87, 10 L.Ed.2d 215, 83 S.Ct. 1194.

Prosecutors in California also have a statutory duty to disclose to the defense any exculpatory evidence if "it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigative agencies." See Pen. Code ¤ 1054.1(e).

In Brady v. Maryland (1963) 373 U.S. 83, 87, 10 L.Ed.2d 215, 83 S.Ct. 1194, the United States Supreme Court held that the "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment irrespective of the good faith or bad faith of the prosecution." In In re Ferguson (1971) 5 Cal.3d 525, 532-533, 96 Cal.Rptr. 594, 487 P.2d 1234, the California Supreme Court extended Brady by imposing a stricter duty upon prosecutors, requiring them to disclose substantial material evidence favorable to the accused without request. Material evidence in this context is evidence that is both favorable to the accused and "material either to guilt or to punishment." See In re Sassounian (1995) 9 Cal.4th 535, 543, 37 Cal.Rptr.2d 446, 887 P.2d 527. The duty to disclose evidence favorable to the accused extends to evidence which may reflect on the credibility of a material witness. See People v. Ruthford (1975) 14 Cal.3d 399, 406, 121 Cal.Rptr. 261, 534 P.2d 1341; Giglio v. United States (1972) 405 U.S. 150, 153, 31 L.Ed.2d 104, 92 S.Ct. 763.

For example, in Merrill the prosecutor suppressed evidence that a witness failed to identify the defendant as one of the men in the vicinity of the crime. The court found that the prosecutor's failure to disclose this information violated the mandate of Ruthford and Brady. Merrill v. Superior Court (4th Dist. 1994) 27 Cal.App.4th 1586, 1594, 33 Cal.Rptr.2d 515 (quoting People v. Ruthford (1975) 14 Cal.3d 399, 405-406, 121 Cal.Rptr. 261, 534 P.2d 1341). The court concluded that withholding this type of evidence undermines the public's confidence in the criminal justice system and "creates an impression that our government officers are our worst enemies, not our public servants." Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1594, 33 Cal.Rptr.2d 515 (quoting People v. Ruthford (1975) 14 Cal.3d 399, 405-406, 121 Cal.Rptr. 261, 534 P.2d 1341); see also People v. Robinson (2nd Dist. 1995) 31 Cal.App.4th 494, 499, 37 Cal.Rptr.2d 183 (reiterating that when exculpatory evidence involves an eyewitness to the crime, what must be disclosed is not just the witness's identity "but all pertinent information which might assist the defense to locate him") (quoting Eleazer v. Superior Court (1970) 1 Cal.3d 847, 851, 83 Cal.Rptr. 586, 486 P.2d 42).

The duty on the part of the prosecution to disclose all substantial material evidence favorable to an accused at trial stems from the due process clause of the Fourteenth Amendment of the Constitution. The duty of disclosure, however, does not end when the trial is over. People v. Garcia (4th Dist. 1993) 17 Cal.App.4th 1169, 1179, 22 Cal.Rptr.2d 545. Even after the conviction the prosecutor is bound "by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction." See Imbler v. Pachtman (1976) 424 U.S. 409, 427 n.25, 47 L.Ed.2d 128, 96 S.Ct. 984; see also People v. Gonzalez (1990) 51 Cal.3d 1179, 1261, 275 Cal.Rptr. 729, 800 P.2d 1189.

The duty not to suppress evidence under CRPC 5-220 applies equally to the prosecution and defense. A handful of California opinions discuss the duty of the defense to turn over to the police or prosecution evidence and instrumentalities of a crime received by the attorney.

In People v. Meredith (1981) 29 Cal.3d 682, 175 Cal.Rptr. 612, 631 P.2d 46, the prosecution called as its witness a defense investigator who testified that he had seen the victim's partially burned wallet in a burn-barrel behind the defendant's residence. Although not disclosed to the jury, the defendant told his counsel of the location of the wallet and counsel had instructed the investigator to retrieve it. Counsel examined the wallet and then turned it over to police. It was conceded that the wallet itself was properly admitted into evidence and that the attorney-client privilege protects conversations between a defendant, his counsel and the counsel's investigator. The California Supreme Court held, however, that the defense investigator's observation of the location of the wallet, which was the product of a protected communication between the defendant and his counsel, was not protected. The California Supreme Court reasoned that since the defense had altered the location of the evidence which precluded the prosecution from making the same observation, the investigator's testimony was admissible. See People v. Meredith (1981) 29 Cal.3d 682, 175 Cal.Rptr. 612, 631, 695 P.2d 46.

In People v. Lee (4th Dist. 1970) 3 Cal.App.3d 514, 83 Cal.Rptr. 715, a deputy public defender received a pair of shoes from the defendant's wife, who in turn had received them from another couple. To avoid a charge of suppressing evidence or having the shoes seized by the district attorney without prior determination of a possible claim of privilege, the deputy public defender delivered the shoes to a municipal county judge. The district attorney obtained a search warrant from a second judge and obtained the shoes. The appellate court held that neither the public defender nor the defendant's substituted counsel had the right to withhold from the prosecution the shoes that were stained with blood subsequently determined to be of the same type as the victim. The court concluded that the attorney should have, after a reasonable period, turned the evidence over to the prosecution. See People v. Lee (4th Dist. 1970) 3 Cal.App.3d 256, 514, 83 Cal.Rptr. 715

In People v. Superior Court (1st Dist. 1987) 193 Cal.App.3d 32, 237 Cal.Rptr. 158, the issue was whether defense counsel, who comes into possession of physical evidence related to charges against the client, must turn that evidence over to the police and prosecution. The court responded in the affirmative, stating "[i]t has been held an abuse of a lawyer's professional responsibility knowingly to take possession of and secrete instrumentalities of a crime." See People v. Superior Court (1st Dist. 1987) 193 Cal.App.3d 32, 34, 237 Cal.Rptr. 158.

C.O.P.R.A.C. Op. 1984-76 offers this simple advice to defense counsel: "Prior to taking possession of such evidence, the defense attorney should inform the client of the attorney's obligation to turn over the evidence once possession is made and the attorney should seriously question the consequences of his taking possession of the evidence at all."

3.8:600   Monitoring Extrajudicial Statements by Law Enforcement Officials

¥ Primary California References:
¥ Background References: ABA Model Rule 3.8(e), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 156, Wolfram ¤ 13.10

Under MR 3.8(e), the prosecutor must take precautions to prevent law enforcement personnel, employees, or other persons assisting or associated with the prosecutor in a criminal case, from making an extrajudicial statement that the prosecutor would otherwise be prohibited from making in MR 3.8. Although there is no provision in the CRPC directly on point, the CRPC 5-120 Official Discussion states that the restriction on making extrajudicial statements applies only to members of the Bar. Presumably then, non-lawyers and law enforcement officials have more flexibility in this area.

3.8:700   Issuing a Subpoena to a Lawyer

¥ Primary California References:
¥ Background References: ABA Model Rule 3.8(f), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 55:1301, ALI-LGL ¤ 156

Under MR 3.8(f), a prosecutor may not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes: (1) the information sought is not protected from disclosure by any applicable privilege; (2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and (3) there is no other feasible alternative to obtain the information. MR 3.8(f) is intended to limit the issuance of subpoenas to situations in which there is a genuine need to intrude into the client-lawyer relationship. The requirement of an adversarial hearing is to assure an independent determination that the applicable standards are met. There is no corresponding provision in the CRPC.

3.8:800   Making Extrajudicial Statements

¥ Primary California References: CRPC 5-120, 5-200, B&PC ¤ 6068
¥ Background References: ABA Model Rule 3.8(g), Other Jurisdictions
¥ Commentary: ABA/BNA ¤ 61:601, ALI-LGL ¤ 169, Wolfram ¤ 12.2.2

Both MR 3.8(g) and CRPC 5-120 indicate that a prosecutor in a criminal case must, with the exception of statements that are necessary to inform the public of the nature and the extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused. The MR 3.8 Comment acknowledges that although the announcement of an indictment may have severe consequences on the accused, the prosector should still "avoid comments which have a substantial likelihood of increasing public opprobrium of the accused."

However, unlike MR 3.8(g), CRPC 5-120 has replaced "prosecutor" with "attorney." Thus, unlike MR 3.8(g), CRPC 5-120 is intended to apply equally to both prosecutors and defense counsel.

Notwithstanding CRPC 5-120(A), an attorney may make a statement that a reasonable attorney would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the attorney's client. However, the statement must be limited to that information necessary to mitigate the recent adverse publicity. For example, CRPC 5-120 will not protect extrajudicial defamatory statements made by an attorney in defense of the client. See Rothman v. Jackson (2nd Dist. 1996) 49 Cal.App.4th 1134, 1149 n.5, 57 Cal.Rptr.2d 284.

Further, the California Supreme Court has recently found that where a prosecutor accurately described evidence to a reporter that was a matter of public record, the information he conveyed was deemed not of a type reasonably likely to affect the defendant's sentence, and thus he did not violate CRPC 5-120. See People v. Marshall (1996) 13 Cal.4th 799, 863-864, 55 Cal.Rptr.2d 347, 919 P.2d 1280. See CRPC 5-120 (listing permitted extrajudicial statements); [see Rule 3.6 Trial Publicity, supra, for further discussion].

3.8:900   Peremptory Strikes of Jurors

¥ Primary California References:
¥ Background References: Other Jurisdictions
¥ Commentary:

Under the line of Supreme Court precedents that commenced with Batson v. Kentucky (1986) 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712, peremptory strikes may not be used on the basis of race by either prosecutors or defense counsel, in either civil or criminal trials. See Batson v. Kentucky (1986) 476 U.S. 79, 89, 90 L.Ed.2d 69, 106 S.Ct. 1712 (involving prosecutor's strikes in criminal trials); Georgia v. McCollum (1992) 505 U.S. 42, 59, 120 L.Ed.2d 33, 112 S.Ct. 2348 (involving defense strikes in criminal trials); Epps v. United States (D.C. App. 1996) 683 A.2d 749 (sustaining trial court's finding that defense counsel's striking white jurors was improper); Edmonson v. Leesville Concrete Co., Inc. (1991) 500 U.S. 614, 631, 114 L.Ed.2d 660, 111 S.Ct. 2077 (including civil trials). Other impermissible grounds for striking jurors include gender, J.E.B. v. Alabama ex rel (1994) 511 U.S. 127, 128 L.Ed.2d 89, 114 S.Ct. 1419, but at least one court has held that this does not preclude peremptories on the basis of age. Baxter v. United States (D.C. App. 1994) 640 A.2d 714.

3.9   Rule 3.9 Advocate in Nonadjudicative Proceedings

3.9:100   Comparative Analysis of CA Rule

¥ Primary California References:
¥ Background References: ABA Model Rule 3.9, Other Jurisdictions
¥ Commentary:

3.9:101      Model Rule Comparison

MR 3.9 does not dispense with the full-advocacy model in the non-adjudicative proceeding, it does require the lawyer who is representing a client before a legislative or administrative tribunal to disclose that the appearance is in a representative capacity. MR 3.9 also explicitly requires the lawyer to conform with the provisions of MR 3.3(a)-(c)(candor toward tribunal), MR 3.4(a)-(c) (fairness to opposing party and counsel) and MR 3.5 (impartiality and decorum of the tribunal).

The CRPC does not have a provision that corresponds to MR 3.9 and as of July 1997, there were no ethics opinions nor any California court decisions concerning MR 3.9.

3.9:102      Model Code Comparison

The DR contains no single comprehensive provision governing the advocate in the non-adjudicative proceeding. Rather, the responsibilities of the advocate in the non-adjudicative context are governed by a number of provisions in the DR and EC. See Wolfram ¤ 13.8. Like MR 3.9, these DR provisions have no counterpart in the CRPC. Similar to MR 3.9, the DR provisions do not dispense with the full-advocacy model in the non-adjudicative context. EC 7-15 gives the lawyer appearing before an administrative agency the continuing duty to advance the cause of the client within the bounds of law. EC 7-16 requires the lawyer who is appearing in connection with proposed legislation to comply with applicable laws and legislative rules. EC 8-5 warns that a lawyer should never participate in or condone fraud, deception or otherwise illegal conduct by a participant in a proceeding before a tribunal or legislative body.

Also similar to MR 3.9, the DR provisions require that the lawyer disclose a representative capacity. EC 8-4 requires that whenever a lawyer seeks legislative or administrative changes, he should identify the capacity in which he appears. DR 7-106(B)(2) leads to the same result, albeit indirectly. DR 7-106(B)(2) requires a lawyer to reveal to the tribunal the identities of the clients he represents and the persons who employed him, unless privileged or irrelevant.

As of July 1997, no legal opinions or California court decisions have directly cited DR 7-106(B)(2).

3.9:200   Duties of Advocate in Nonadjudicative Proceedings

¥ Primary California References:
¥ Background References: ABA Model Rule 3.9, Other Jurisdictions
¥ Commentary: ALI-LGL ¤ 164, Wolfram ¤ 13.8

As previously discussed, neither the CRPC nor California court decisions deal with specific affirmative duties of an advocate in a non-adjudicative proceeding. However California courts have held that the practice of law includes all activities engaged in by lawyers generally in a representative capacity, including legislative advocacy. See Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 542, 86 Cal.Rptr. 673, 469 P.2d 353. Equally clear is that a licensed attorney must conform to the professional standards in whatever capacity he may be acting in a particular matter. See Id. (citing Crawford v. State Bar (1960) 54 Cal.2d 659, 668, 7 Cal.Rptr. 746, 355 P.2d 490. This duty does not change even if the lawyer is performing services that might otherwise be accomplished by lay persons because the clients expect and are entitled to expert legal counsel. See Crawford v. State Bar (1960) 54 Cal.2d 659, 668, 7 Cal.Rptr. 746, 355 P.2d 490); Associated Indemnity Corporation v. Industrial Accident Commission (1st Dist. 1943) 56 Cal.App.2d 804, 808-809, 133 P.2d 698.

Thus, the professional standards of the attorney representing a client in a non-adjudicative proceeding are no different than the professional standards in the adjudicative context. Cf. Baron v. City of Los Angeles (1970) 2 Cal.3d 535, 542, 86 Cal.Rptr. 673, 469 P.2d 353.