Judge concerned about law firm duty explanations to jury

LOS ANGELES -- Declining multiple defense motions to instruct the jury on how to interpret a lawyer's testimony on law firms' duty to their clients, a superior court judge expressed concern Wednesday that such explanations could become part of every malpractice trial if the plaintiff in the case against Edwards Wildman Palmer LLP prevails.

"There really is no case that covers this," said Los Angeles County Superior Court Judge Terry A. Green, who told attorneys the day before he is concerned the jurors do not understand the evidence, which is being presented almost entirely by witnesses who are lawyers.

The arguments are centered around the case of disbarred British solicitor Shahrokh Mireskandari, who sued Edwards Wildman Palmer and one of its attorneys, Dominique Shelton, alleging they overcharged him and misrepresented their expertise in a libel suit that shifted into an invasion of privacy case against the Daily Mail. Shahrokh Mireskandari v. Edwards Wildman Palmer, BC517799 (filed Aug 9, 2013, L.A. Sup. Ct.).

Attorney Robert L. Kehr of Kehr, Schiff & Crane LLP testified for the plaintiff Wednesday, saying law firms generally owe their loyalty first to their clients, even if doing so goes against the interests of the firm.

Defense attorney John M. Moscarino of Valle Makoff LLP asked the judge repeatedly, and unsuccessfully, to give some instruction to the jury on how to interpret the testimony.

Green also denied a motion from plaintiff's attorney Becky S. James of James & Associates, asking the judge to declare a mistrial on the grounds that Moscarino's cross-examination of the witness focused too heavily on emotional pleas regarding the potential repercussions attorneys who were found to have mishandled cases would face.

Moscarino said Kehr's testimony gave the false impression that an honest mistake made by a law firm could constitute a breach of fiduciary duty to its client.

"I did not say that," Kehr whispered.

"We have one duty. the duty of loyalty," Moscarino said to the plaintiff's attorneys, adding he was worried testimony from Kehr would unfairly cut against the defense.

"This shouldn't be a revolutionary concept. I expect all of you to carve out bright lines between breach of fiduciary duty and simple negligence," Green said in response. Moscarino told Green he would like the judge to restrict the witness' "ability to define duties."

Characterizing a specific action taken or not taken by Edwards Wildman as a fiduciary duty, whether it constituted one or not, is a bell that could not be un-rung in the mind of a juror, Moscarino argued.

Green made clear he didn't believe a firm making a mistake constituted a breach but did not give the jury any instruction on how to interpret Kehr's testimony. He expressed some concern the process of explaining to jurors attorneys' duties to their clients would become part of every ensuing legal malpractice trial if this jury ruled for the plaintiff and that ruling was affirmed in the court of appeal.

Continuing his cross-examination, Moscarino asked Kehr: "To be a breach of fiduciary duty there would have to be a finding that someone knowingly acted against somebody else?"

Kehr replied affirmatively.

Moscarino then attempted to make the argument a dishonest client could complicate the attorney-client relationship and make it more difficult for a firm to represent their best interests.

Plaintiff's attorney Kathleen Bliss of Kathleen Bliss Law then questioned Bonnie E. Eskenazi, a partner at the law firm Greenberg Glusker Fields Claman & Machtinger LLP, which was retained to handle anti-SLAPP aspects of Mireskandari's case.

Eskenazi briefly completed her testimony from the previous day in which she characterized Mireskandari as a combative client who actively worked against his own interests as she saw them. She described him Tuesday as "out of control."