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Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.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

IV. TRANSACTIONS WITH PERSONS OTHER THAN CLIENTS

4.1   Rule 4.1 Truthfulness in Statements to Others

4.1:100   Comparative Analysis of CA Rule

Primary California References: B&PC 6068(d), 6106
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary:

4.1:101      Model Rule Comparison

MR 4.1 provides that a lawyer shall not knowingly (1) make a false statement of material fact or law to a third person; or (2) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by MR 1.6 (regarding the confidentiality of information). The CRPC do not contain a similar rule regarding truthfulness in statements to others. B&PC 6068(d) prohibits California lawyers from making false statements of fact or law to any judge or judicial officer. In addition, B&PC 6106 provides that the commission of any act of moral turpitude or dishonesty constitutes a cause for disbarment or suspension. By prohibiting dishonesty by lawyers, B&PC 6106 is sufficiently broad to prohibit false statements by lawyers to third parties.

4.1:102      Model Code Comparison

DR 7-102(A)(5) provides that "[i]n his representation of a client, a lawyer shall not . . . [k]nowingly make a false statement of law or fact." DR 7-102(A)(3) also provides that a lawyer shall not "[c]onceal or knowingly fail to disclose that which is required by law to reveal." As noted above, the CRPC do not contain a similar provision. B&PC 6068(d), however, states that "[i]t is the duty of an attorney . . . [t]o employ, for the purposes of maintaining the causes confided to him or her 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."

4.1:200   Truthfulness in Out-of-Court Statements

Primary California References: B&PC 6068(d)
Background References: ABA Model Rule 4.1, Other Jurisdictions
Commentary: ABA/BNA 71:201, ALI-LGL 157, Wolfram 13.5

B&PC 6068(d) provides in part that it is the duty of every California lawyer "[t]o employ, for the purpose of maintaining the causes confided to him or her such means only as are consistent with the truth. "In addition to this general admonishment, B&PC 6128 provides that "every attorney is guilty of a misdemeanor who . . . is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party." Taken together, B&PC 6068(d) and B&PC 6128 require California lawyers to be truthful in all statements, whether to the court, opposing parties, clients, or third parties.

This broad interpretation is supported by the case law in California. For example, in People v. Petas (1st Dist. 1989) 214 Cal.App.3d 70, 262 Cal.Rptr. 467, the court held that a lawyer could be charged with a misdemeanor where the lawyer presented a false or fraudulent claim for payment of insurance by falsely representing in insurance demand letters that the client's injuries resulted from a single accident when the lawyer knew that they did not.

It is also clear that a California lawyer may not make false or misleading statements in affidavits or other court papers. See, e.g., Lee v. State Bar (1970) 2 Cal.3d 927, 88 Cal.Rptr. 361, 472 P.2d 449 (disciplinary action against lawyer who made false statements in sworn testimony); Sturr v. State Bar (1959) 52 Cal.2d 125, 338 P.2d 897 (involving affidavit containing false statements); Vickers v. State Bar (1948) 32 Cal.2d 247, 196 P.2d 10 (disciplinary action against lawyer who made false statement in proceeding for letters of special administration that he was the surviving husband of decedent).

Besides prohibiting false statements, the provisions of the B&PC prohibit all forms of deceit, including selective presentation of incomplete facts. For example, a California lawyer may not author a legal opinion on a transaction that discloses only facts favorable to his client where the lawyer is aware of other adverse material facts that may affect another's decision in the transaction. Roberts v. Ball, Hunt, Hart, Brown & Baerwitz (2nd Dist. 1976) 57 Cal.App.3d 104, 128 Cal.Rptr. 901. But see Price v. Superior Court (2nd Dist. 1983) 139 Cal.App.3d 518, 188 Cal.Rptr. 832 (criminal defense counsel must disclose to prosecutor that another prosecutor had previously refused a plea bargain that defense counsel was now proposing to the prosecutor). Moreover, a California lawyer has an affirmative duty to correct prior misleading statements by disclosing true facts or new information to persons who may act in reliance on the original statement. Failure to disclose correct facts or new information constitutes tortious abuse in California. See, e.g., Dyke v. Zaiser (4th Dist. 1947) 80 Cal.App.2d 639, 182 P.2d 344. Failure to disclose material facts may also provide a basis for reformulation of a contract or agreement to reflect the true facts. Stare v. Tate (2nd Dist. 1971) 21 Cal.App.3d 432, 98 Cal.Rptr. 264 (contract reformed where lawyer prepared counter offer that concealed a mistaken figure provided by the other side).

4.1:300   Disclosures to Avoid Assisting Client Fraud [see 1.6:370;4.1:200]

Primary California References:
Background References: ABA Model Rule 4.1(b), Other Jurisdictions
Commentary: ABA/BNA 71:203, ALI-LGL 117A, 151, Wolfram 12.6, 13.3

4.2   Rule 4.2 Communication with Person Represented by Counsel

4.2:100   Comparative Analysis of CA Rule

Primary California References: CRPC 2-100
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary:

4.2:101      Model Rule Comparison

The anti-contact rule of MR 4.2 prohibits a lawyer from communicating with a person the lawyer knows is represented concerning the subject matter of the representation without the consent of that person's lawyer. CRPC 2-100 contains a somewhat more detailed version of the same prohibition. California cases interpreting CRPC 2-100 allow ex parte contacts with former employees of a represented organization that is the opposing party, see Nalian Truck Lines, Inc. v. Nakano Warehouse & Transp. Co. (2nd Dist. 1992) 6 Cal.App.4th 1256, 8 Cal.Rptr. 2d 467. In United States v. Lopez (9th Cir. 1993) 989 F.2d 1032, the court stated that the so-called Thornburgh memorandum did not override California's anti-contact rule that had been adopted by a federal district court as part of its ethics rules; in that case the federal prosecutor communicated with a represented criminal defendant at the initiative and request of the defendant. The U.S. Department of Justice has now issued a formal regulation on the subject, but its validity has not yet been determined by the courts.

4.2:102      Model Code Comparison

DR 7-104(A)(1) provided that a lawyer shall not communicate or cause another to communicate with a party represented in a matter regarding the subject matter of the representation without the prior consent of the lawyer representing the other party or unless authorized by law to do so. CRPC 2-100 is essentially the same as the Model Code provision except that it is more detailed than the Model Code.

4.2:200   Communication with a Represented Person

Primary California References: CRPC 2-100
Background References: ABA Model Rule 4.2, Other Jurisdictions
Commentary: ABA/BNA 71:301, ALI-LGL 158-162, Wolfram 11.6.2

The following comments on CRPC 2-100 Communications With a Represented Party are taken from Karpman & Margolis pages 25-26 with certain conforming changes:

This rule is necessary for the preservation of the lawyer-client relationship. It is designed to shield the opposing party from approaches that are well-intended, but misguided, as well as from intentionally improper approaches. This rule is not limited to communications in a litigation context.

A proposed amendment to this rule now being discussed would provide an exemption for prosecutors investigating civil, criminal or disciplinary charges. Such an amendment would seem to conflict with the Ninth Circuit's recent decision in U.S. v. Lopez (9th Cir. 1993) 989 F.2d 1032, criticizing a federal prosecutor's communications with a defendant in the absence of defense counsel.

It was improper for a lawyer to use the client to lure the opposing party into a settlement conference behind opposing counsel's back. Abeles v. State Bar (1973) 9 Cal.3d 603, 108 Cal.Rptr. 359, 510 P.2d 711.

The rule is designed to permit a lawyer to function adequately in his or her proper role and to prevent opposing counsel from impeding the lawyer's performance. Mitton v. State Bar (1969) 71 Cal.2d 525, 78 Cal.Rptr. 649, 455 P.2d 753.

If the party is a corporation, this rule permits opposing counsel to initiate ex-parte contacts with unrepresented former employees and present employees other than officers, directors, or managing agents who are not separately represented, so long as the communication does not involve the employee's act or failure to act in connection with the matter which may bind the corporation, be imputed to it, or constitute an admission of the corporation for purposes of establishing liability. Triple A Machine Shop, Inc. v. California (1st Dist. 1989) 213 Cal.App.3d 131, 261 Cal.Rptr. 493; accord, Nalian Truck Lines, Inc. v. Nakano Warehouse & Transp. Corp. (2nd Dist. 1992) 6 Cal.App.4th 1256, 1261-1264, 8 Cal.Rptr.2d 467.

A lawyer's violation of this rule may serve as the basis for the lawyer's disqualification from an action only if the misconduct will have a substantial continuing effect on the judicial proceedings before the court. Bell v. 20th Century Ins. Co. (2nd Dist. 1989) 212 Cal.App.3d 194, 200, 260 Cal.Rptr. 459, 462; Chronometrics, Inc. v. Sysgen, Inc. (2nd Dist. 1980) 110 Cal.App.3d. 597, 168 Cal.Rptr. 196.

A potential but as yet unapproached class member is not a party represented by counsel within the meaning of the rule. Atari, Inc. v. Superior Court (6th Dist. 1985) 166 Cal.App.3d 867, 212 Cal.Rptr. 773.

For application of the rule in the criminal context, see U.S. v. Lopez (9th Cir. 1993) 989 F.2d 1032, 1039, (prosecutorial misconduct to communicate directly with defendant known to be represented by counsel; no exception for government lawyer); People v. Sharp (1st Dist. 1983) 150 Cal.App.3d 13, 197 Cal.Rptr. 436 (unauthorized contact with represented defendant at line-up).

Ethics Opinions

C.O.P.R.A.C. Op. 93-131 (lawyer may not indirectly communicate using a client as a ploy to obtain an unfair advantage; no bright line in terms of advice and guidance to a client in anticipation of party-to-party communications).

C.O.P.R.A.C. Op. 1989-110 (bankruptcy trustee, who is also a lawyer, not prohibited from communicating directly with parties to bankruptcy proceeding who are represented by counsel).

L.A. Op. 1983-410 (ex parte communication with employees of a corporation).

L.A. Op. 1083-411 (lawyer may not communicate with opposing party in connection with matters previously litigated without express consent of opposing party's lawyer).

4.2:210      "Represented Person" (Contact with an Agent or Employee of a Represented Entity)

CRPC 2-100(B) provides helpful guidance to California lawyers by expressly defining the term "party" to include (1) an officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or (2) an association member or an employee of an association, corporation or partnership. . . ." The California rule, however, limits the rule as applied to corporate or partnership employees to situations where "the subject of the communication is an act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization." A lawyer may be disqualified for violating the rule barring ex parte contacts. See, e.g., Mills Land & Water v. Golden W. Ref. Corp. (4th Dist. 1986) 186 Cal. App.3d 116, 230 Cal.Rptr. 461 (disqualification for direct communication with corporate directors).

The provisions of CRPC 2-100 are not intended to prevent the parties themselves from communicating about the subject matter of the representation. In addition, nothing prevents a lawyer from advising his or her client that communications among the parties themselves can be made. The case law, moreover, indicates that CRPC 2-100 only prohibits communications with employees of a party who are employed at the time of the communication. See Triple A Machine Shop, Inc. v. State (1st Dist. 1989) 213 Cal.App.3d 131, 261 Cal.Rptr. 493. Thus, the rule does not prevent contacts by a lawyer with former employees of the opposing party. Nalian Truck Lines, Inc. v. Nakano Warehouse & Transp. Co. (2nd Dist. 1992) 6 Cal.App.4th 1256, 8 Cal.Rptr.2d 467 (lawyer who spoke with former member of corporate opponent's control group did not violate CRPC 2-100). On the other hand, contacts with even former employees may be prohibited where the former employee has extensive exposure to privileged information. See, e.g., Bobele v. Valley Hilton Hotel (2nd Dist. 1988) 199 Cal.App.3d 708, 245 Cal.Rptr. 144 (noting that under Upjohn Corp. v. United States (1981) 449 U.S. 383, 66 L.Ed.2d 584, 101 S.Ct. 677, the prohibition against ex parte contacts with represented parties extends to all corporate employees for purposes of privileged lawyer-client communications).

One issue that may arise is whether the party is actually represented by counsel. Where a significant period of time has elapsed since active representation, the bar on ex parte contacts of CRPC 2-100 may not apply. For example, the court held in Jackson v. Ingersoll-Rand Co. (1st Dist. 1996) 42 Cal.App.4th 1163, 50 Cal.Rptr.2d 66, that a defense counsel should not have been disqualified in a personal injury action for communicating directly with plaintiff's ex-wife who had been dismissed from the litigation two and a half years earlier. The court noted that CRPC 2-100 was not designed "to grant an attorney hegemony over former clients through which he or she can obstruct the opposing party's investigation of its case."

See also, Babbitt v. Albertson's, Inc. (N.D. Cal. Jan. 18, 1993), No. C92-18835BA, 1993 WL 12809 (potential members of a plaintiff class action are not "represented by counsel" within the meaning of CRPC 2-100 and thus may be contacted directly by defense counsel).

Another issue which may arise is whether a lawyer "knows" that the party with whom he or she communicates is represented by counsel under CRPC 2-100(A). Under Truitt v. Superior Court, a violation of CRPC 2-100(A) requires that a lawyer actually knows that the party is represented: constructive knowledge or whether the lawyer should have reasonably known is inapposite. (2nd Dist. 1997) 59 Cal.App.4th 1183, 69 Cal.Rptr.2d 558. See also, Jorgensen v. Taco Bell Corp. (1st Dist. 1996) 50 Cal.App.4th 1398, 58 Cal.Rptr.2d 178. In Truitt, the plaintiff's lawyer, who previously served as in-house counsel for the defendant, filed a complaint against the defendant and subsequently used an investigator to obtain a statement from the defendant's employee. Truitt, 59 Cal.App.4th at 1186. The defendant argued that the plaintiff's lawyer, through prior litigation with defendant, knew that defendant had a practice of referring complaints to counsel. Id. at 1189. In finding that CRPC 2-100 had not been violated, the court stated that even assuming the plaintiff's lawyer had knowledge of defendant's referral procedure, "it would not constitute actual knowledge of representation in a particular matter." Id. at 1189. See also, Jorgensen v. Taco Bell Corp. (1st Dist. 1996) 50 Cal.App.4th 1398, 1402, 1403, 58 Cal.Rptr.2d 178 (corporations seeking to prevent employees from being interviewed should instruct them not to speak with claimant's representatives and should notify potential claimants that their employees are represented).

Ghostwriting Client Communications

Ghostwriting a client communication to a represented opposing party may constitute an indirect communication in violation of CRPC 2-100.

Ethics opinions hold that if the communication from the client to the opposing party originates from the lawyer as opposed to the client, it is an indirect communication in violation of CRPC 2-100. C.O.P.R.A.C. Op. 1993-131 pg. 3; S.D. Op. 1983-2 pg. 1; L.A. Op. 1978-375. One opinion notes that if the communication originates with or is directed by the lawyer then:

an attorney is prohibited from drafting documents, correspondence or other written materials, to be delivered to an opposing party represented by counsel even if they are prepared at the request of the client, are conveyed by the client and appear to be from the client rather than the attorney ... An attorney is also prohibited from scripting the questions to be asked or statements to be made in the communications or otherwise using the client as a conduit.

C.O.P.R.A.C. Op. 1993-131 pg. 3. On the other hand, the opinion allows that if the communication originates with and is directed by the client,

an attorney may confer with the client as to the strategy to be pursued in, the goals to be achieved by and the general nature of the communication the client intends to initiate with the opposing party.

C.O.P.R.A.C. Op. 1993-131 pg. 3; L.A. Op. 1978-375 (initiating a settlement conference or indirectly participating in negotiations through instructions to the client is impermissible).

The test as to when a communication originates with or is directed by a lawyer is unclear. However, at least under C.O.P.R.A.C. Op. 1993-131, even if a lawyer prepares a communication at the client's request, the communication may still be considered to have originated from the lawyer. Under this opinion, whether a communication originates with a lawyer seems to depend upon the degree of impact the lawyer has on the substance of the communication itself. See C.O.P.R.A.C. Op. 1993-131 pg. 3 (conferring with the client as to the general nature of the proposed communication, i.e. goals and strategies is permissible).

Nonetheless, arguments can be made that this type of ghostwriting should be allowed. First, it could be argued that little of CRPC 2-100's purpose is served by disallowance. The primary purpose of the rule is to guard against the risk that a party will be taken advantage of if exposed to an opposing lawyer without the benefit of his or her counsel. See Continental Ins. Co. v. Superior Ct. (2nd Dist. 1995) 32 Cal.App.4th 94, 112, 37 Cal.Rptr.2d 843. Arguably, this risk is lessened in the context of ghostwriting because a party is less vulnerable to manipulation through written correspondence than in-person or telephonic contact.

Second, there is ample authority for the proposition that direct party communication is desirable in that it promotes dispute resolution. See CRPC 2-100's Drafter's Notes (CRPC 2-100 is not intended to discourage direct party communication or to prevent a lawyer from advising the client to engage in such communications); C.O.P.R.A.C. Op. 1993-131 pgs. 2-3 (discouraging the client from direct communication with the opposing party may constitute incompetent representation as it may foreclose "opportunities to efficiently settle or resolve" disputes) (recognizing the "line" between the extremes of directly communicating with an adverse party represented by counsel on the one hand and on the other hand, refusing to be involved in any communication the client has with an opposing party represented by counsel); L.A. Op. 1978-375 (advising the client to restrain from direct settlement negotiations with the opposing party may be contrary to the client's best interest); see also, S.F. Op. 1985-1; S.D. Op. 1983-2. Ghostwriting party correspondence can be viewed as facilitating direct party communication.

4.2:220      Communications "Authorized by Law" -- Law Enforcement Activities

CRPC 2-100(C)(3) expressly authorizes "communications otherwise authorized by law." In this context, a communication by a federal prosecutor with a represented criminal defendant violated CRPC 2-100 even though it was authorized by a Department of Justice memorandum. United States v. Lopez (9th Cir. 1993) 989 F.2d 1032. In contrast, there is case law construing CRPC 2-100 to allow a pre-indictment conversation with a represented, non-custodial suspect through a secretly cooperating co-conspirator. U.S. v. Powe (9th Cir. 1993) 9 F.3d 68.

4.2:230      Communications "Authorized by Law" -- Other

[See 4.2:220 Communications "Authorized by Law" - Law Enforcement Activities, supra].

4.2:240      Communication with a Represented Government Agency or Officer

CRPC 2-100 expressly excepts "communications with a public officer, board, committee or body" from the bar against ex parte contacts with represented parties. However, there are no reported California cases which construe this provision.

4.2:250      Communication with a Confidential Agent of Non-Client

Regarding contacts by counsel with an approving party's expert witnesses, see generally County of Los Angeles v. Superior Court (2nd Dist. 1990) 222 Cal.App.3d 647, 271 Cal.Rptr. 698; Maruman Integrated Circuits, Inc. v. Consortium Co. (6th Dist. 1985) 166 Cal.App.3d 443, 212 Cal.Rptr. 497; Shadow Traffic Network v. Superior Court (2nd Dist. 1994) 24 Cal.App.4th 1067, 29 Cal.Rptr. 2d 693; Campbell Industries v. M/V Gemini (9th Cir. 1980) 619 F.2d 24. Where the lawyer does not induce the breach of confidence by an unfaithful agent, the lawyer may be allowed to discuss matters with the agent. See Maruman Integrated Circuits, 166 Cal.App.3d 443 (lawyer could interview former managerial employee of corporation who was a fact witness about privileged communications in claim not involving waiver of privilege by corporation); Cooke v. Superior Court (2nd Dist. 1978) 83 Cal.App.3d 582, 147 Cal.Rptr. 915 (although evidence was suppressed, counsel was not automatically disqualified where counsel for wife in dissolution proceedings received husband's confidential lawyer-client communications from husband's unfaithful agent where counsel did not personally participate in removal of confidential information).

4.3   Rule 4.3 Dealing with Unrepresented Person

4.3:100   Comparative Analysis of CA Rule

Primary California References:
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary:

4.3:101      Model Rule Comparison

MR 4.3 provides that a lawyer shall not state or imply that the lawyer is disinterested in a matter when dealing on behalf of a client with someone who is not represented by counsel. MR 4.3 also requires lawyers to make reasonable efforts to correct a misunderstanding by a represented person regarding the lawyer's role. California does not have a comparable rule, although B&PC 6063(d) provides that it is the duty of a California state bar member "to employ for the purposes of maintaining the causes confided to him or her such means only as are consistent with the truth . . . ."

4.3:102      Model Code Comparison

The DR does not contain a direct counterpart to MR 4.3. DR 7-104(A)(2) merely provides that a lawyer shall not "(g)ive advice to a person who is not represented by a lawyer, other than to give advice to secure counsel."

4.3:200   Dealing with Unrepresented Person

Primary California References: CRPC 2-100
Background References: ABA Model Rule 4.3, Other Jurisdictions
Commentary: ABA/BNA 71:501, ALI-LGL 163, Wolfram 11.6.3

CRPC 2-100 prohibits California lawyers from communicating directly with a represented party about the subject matter of the representation without the permission of the represented party's counsel or as otherwise authorized by law. [See 4.2:210 "Representative Person" (Contact with an Agent or Employee of a Represented Entity, supra]. The case law interpreting this ethical rule makes it clear that provisions of CRPC 2-100 do not apply to former employees of a party where the employee is not represented by counsel. Triple A Machine Shop, Inc. v. State (1st Dist. 1989) 213 Cal.App.3d 131, 261 Cal.Rptr. 493; Nalian Truck Lines, Inc. v. Nokano Warehouse & Transp. Co. (2nd Dist. 1992) 6 Cal.App.4th 1256, 8 Cal.Rptr.2d 467. In addition, California decisions indicate that potential class action members are not necessarily represented by counsel and may be contacted directly by a defense counsel investigating a matter. See Babbitt v. Albertson's, Inc. (N.D. Cal. Jan. 18, 1993) No. C92-18835BA, 1993 WL 12809.

4.4   Rule 4.4 Respect for Rights of Third Persons

4.4:100   Comparative Analysis of CA Rule

Primary California References:
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary:

4.4:101      Model Rule Comparison

The MR do not include the express prohibition contained in DR 7-102(A)(1) of action taken solely to "harass or maliciously injure another." But MR 4.4(d) prohibits a lawyer from unlawfully obstructing an adversary's access to evidence or unlawfully altering documentary evidence. MR 4.4 prohibits means that have "no substantial purpose other than to embarrass, delay, or burden a third person. . . ." For a discussion of California authority dealing with the misuse of legal machinery [see Section III Advocate, supra].

B&PC 6068(f) makes it a lawyer's duty "to advance no fact prejudicial to the honor or reputation of a ... witness, unless required by the justice of the cause with which he is charged." Cf. MR 4.4 (prohibiting a means that has "no substantial purpose other than to embarrass, delay, or burden a third person" or that violates that person's legal rights). Civ. Code 47 provides a "litigation privilege" that protects a lawyer from civil liability for certain otherwise tortious conduct such as defamation. [See 1.1:510 Advocate's Defamation Privilege, supra for further discussion].

4.4:102      Model Code Comparison

DR 7-106(C)(2) provides that a lawyer shall not "(a)sk any question that he has no reasonable basis to believe is relevant to a case and that is intended to degrade a witness or other person." This provision is similar in intent to B&PC 6068(f) which provides that it is the duty of members of the State Bar "to advance no fact prejudicial to the honor or reputation of a . . . witness, unless required by the justice of the cause with which he is charged." DR 7-108(D) also prohibited lawyers from asking questions to jurors after discharge of the jury which "are calculated merely to harass or embarrass the juror." This provision of the DR is substantially identical to CRPC 5-320(D) which provides that "(a)fter discharge of the jury . . . a member shall not ask questions of or make comments to a member of that jury that are intended to harass or embarrass the juror or to influence the juror's actions in future jury service." Finally, DR 7-108(E) provided that a lawyer "shall not conduct. . . a vexatious or harassing investigation of either a venireman or juror." CRPC 5-320(E) is essentially the same since it prohibits an out of court investigation of a prospective venireman or juror "in a manner likely to influence the state of mind of such person in connection with present or future jury service."

4.4:200   Disregard of Rights or Interests of Third Persons

Primary California References: B&PC 6068(f)
Background References: ABA Model Rule 4.4, Other Jurisdictions
Commentary: ABA/BNA 71:101, ALI-LGL 163, 166, 167, Wolfram 12.4.4

B&PC 6068(f) provides that it is the duty of every California lawyer "(t)o 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." Regarding the harassment of third parties, Pen. Code 632 prohibits the use of any eavesdropping device to hear or record a private conversation without the consent of all parties to the conversation. See e.g. People v. Wyrich (3rd Dist. 1978) 77 Cal.App.3d 903, 144 Cal.Rptr. 38 (lawyer criminally prosecuted for recording telephone conversation with physician without consent of physician during an effort to settle a personal injury action).

4.4:210      Cross-Examining a Truthful Witness; Fostering Falsity

B&PC 6068(f) requires California lawyers to obstain 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." This provision, however, does not prevent a lawyer from calling a witness to testify in the course of defending his client, even though the lawyer knows that the witness would probably incriminate himself. DeLuca v. Whatley (2nd Dist. 1974) 42 Cal.App.3d 574, 117 Cal.Rptr. 63. Moreover, a lawyer is under no obligation to warn a witness that a right against self-incrimination exists or that the witness' testimony is potentially incriminating.

On the other hand, a California lawyer may risk a contempt citation for deliberately asking a witness questions calling for inadmissible and prejudicial answers, including questions intended to bring to light the fact that the witness was currently in jail for a misdemeanor conviction. Hawk v. Superior Court (1st Dist. 1974) 42 Cal.App.3d 108, 116 Cal.Rptr. 713.

4.4:220      Threatening Prosecution

DR 7-105(A) prohibits lawyers from attempting to gain an advantage in a civil proceeding by threatening to bring a criminal prosecution. CRPC 5-100 contains a broader provision, stating that "[a] member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute." CRPC 5-100(B) defines the term "administrative charges" to include "the filing or lodging of a complaint with a federal, state, or local government entity which may order or recommend the loss or suspension of a license, or may impose or recommend the imposition of a fine, pecuniary sanction, or other sanction of a quasi-criminal nature. . . ." "Administrative charges," however, do not include "filing charges with an administrative entity required by law as a condition precedent to maintaining a civil action." CRPC 5-100(B). It is clear that it is improper to threaten criminal or administrative charges in any matter regardless of whether a civil action has actually been commenced. See CRPC 5-100(C). CRPC 5-100(C) provides that the section is applicable to any "civil dispute" which is defined to include "a controversy or potential controversy over the rights and duties of two or more parties under civil law, whether or not an action has been commenced, and includes an administrative proceeding of a quasi-civil nature pending before a federal, state or local government entity."

The California case law on the subject makes it clear, moreover, that a lawyer cannot make veiled threats to bring a criminal action or administrative charges. See, e.g., Crane v. State Bar (1981) 30 Cal.3d 117, 177 Cal.Rptr. 670, 635 P.2d 163 (concerning notations on letter that copies were being sent to official agency together with statement that conduct was offensive). Indeed, it has been held in California that it is a form of extortion to threaten to report a debtor to the police. Libarian v. State Bar (1952) 38 Cal.2d 328, 239 P.2d 865. Such threats may also constitute tortious abuse of process. See Kinnamon v. Staitman & Snyder (2nd Dist. 1977) 66 Cal.App.3d 893, 136 Cal.Rptr. 321. As noted previously, it is improper under California law to threaten to bring an administrative proceeding against another. See, e.g., Lindenbaum v. State Bar (1945) 26 Cal.2d 565, 160 P.2d 9 (improper for lawyer to report his ex-client's wife to immigration officials as a punitive measure after client, who owed the lawyer fees, declared bankruptcy).

The provisions of CRPC 5-100 are equally applicable to public officials and prosecutors. For example, it is improper for a government official to condition the dismissal of criminal charges upon the execution of a release of civil claims by the accused against persons involved in the arrest. It has been held, however, that this does not invalidate the validity of the release. Haines v. Barney's Club, Inc. (1980) 28 Cal.3d 603, 170 Cal.Rptr. 42, 620 P.2d 628.