What constitutes discipline-worthy conduct in California?

Complaints have been filed against Rudy Giuliani and Sydney Powell demanding that state bar associations discipline or disbar them for their use of courts to drive Donald Trump's fundraising campaign after the election. These high-profile cases raise the often neglected question of how state bars deal with attorney misconduct in situations not involving high-profile people and actions.

In California, every law student now must read In re Marriage of Davenport, 194 Cal. App. 4th 1507 (2011). In Davenport, a law firm gave primary case authority to an attorney who had been admitted to the bar only months before taking on the case. The case was a divorce, with a $57 million community estate and a long-term marriage. After two years of litigation, the young attorney asked the court to award his client $933,794 in attorney fees and costs to be paid by the other party as a sanction for litigation misconduct.

The opposing side asked the court for more than $300,000 in attorney fees and costs based on a variety of misconduct by the young attorney. In a detailed order, the judge set out the young attorney's violations of the Code of Civil Procedure, the Evidence Code and the Family Code, as well as Rules of Court and Rules of Professional Conduct. The court denied all of the young attorney's requests and ordered his client to pay the other side $304,387 in legal fees and $100,000 in sanctions.

The young attorney then left the law firm, and the law firm appealed the awards. The Court of Appeal upheld the family law court and noted that the law firm's more senior members who prosecuted the appeal continued the young attorney's style of presentation, expressly violating statutes and rules governing appeals.

A search of State Bar records shows that the bar did not discipline the young attorney or the firm for their conduct which resulted in attorney fees over $900,000 and costs over $336,000, plus sanctions. The various violations of statutes and rules were of no moment to the bar.

In 2018, the California Supreme Court, perhaps with some consternation that lawyers' misconduct was being ignored by the State Bar, issued new Rules of Professional Conduct nominally imposing greater responsibility on attorneys.

In 2019, the 1st District Court of Appeal devoted part of its opinion in Davis v. TWC Dealer Group, Inc., 2019 DJDAR 10187, to pointing out that the lawyers for TWC Dealer Group had violated not only new Rule of Professional Conduct #3.3, but also the similar rule which had preceded the new rule. The court noted two specific violations.

First, in an attempt to mislead the court, the attorneys' papers had omitted 38 lines of a 47-line arbitration paragraph at the center of the dispute. The omission appeared to be an attempt to evade the clear evidence of a paragraph that imposed an arbitration agreement that was both procedurally and substantively unconscionable.

Second, even after the court had requested the parties to address a specific, newly decided California Supreme Court case, OTO, LLC. v. Kho, 8 Cal. 5th 111 (2019), the TWC attorneys failed to address the case, and at oral argument denied knowledge of it. The case that they denied knowing about was a case that the same attorneys had argued and lost at the Supreme Court!

As with the attorneys in Davenport, the State Bar found nothing to criticize in these violations of Rules of Professional Conduct. As with the Davenport case, the attorneys who violated the rules and statutes were experienced, from a firm with offices around the state, and one attorney arguing in both the Supreme Court and appellate court was a name partner in the firm. Yet at the Court of Appeal, he couldn't recall what he had argued to the Supreme Court.

In 2020, more appellate courts commented on attorney misconduct, and some specifically ordered that their decisions be referred to the bar for further consideration. It is too early to know if the bar will act on any of these referrals, or might review them before deciding to take no action. But with history as a guide, it is fair to predict the results to be expected from such referrals.

If the offending attorney is with a large firm, if he has responsibility for training new attorneys in the proper practice of law, no discipline will result. Perhaps if the attorney is a sole or small firm practitioner, some private reproval or at least "investigation" before closing the file might result.

One of the expressed concerns of the bar is to protect the public from financial misconduct involving client funds. But defining the concept of financial misconduct is key. Where client funds are taken by an attorney, of course that is bad. But piling up $600,000 in fees while breaking statutes and rules, as in Davenport, is not "taking client funds"; rather, it is simply collecting bills for work done. Similarly, putting a client into the position of having to pay the opposing party's fees, as happens regularly in family law cases, is not "taking the client's funds."

It might be said that the State Bar does not have the resources to seek out attorneys who are violating statutes and rules. But how much "seeking out" is necessary for cases in which the misconduct is mentioned in published decisions? And the State Bar has the funds to maintain an active branch dedicated to searching out and prosecuting people who practice law without a license -- people who generally "serve" the lowest economic runs of society.

What appears then is a systemic ranking of attorney discipline, in which well-funded corporate and insurance defense attorneys get a pass, lower-ranking small firm attorneys get some discipline, and the non-attorneys who provide (often bad) legal advice to the poor are hunted and prosecuted.

Attorney discipline is necessary. The Supreme Court's 2018 rules changes appeared to be an attempt to get attorneys and the State Bar more attuned to the declining public image of attorneys. That attempt does not seem to have worked.

It is widely accepted that Giuliani and Powell were misleading in their press conferences and other public claims of election fraud. But it is also reported that when directly challenged by judges, they spoke with much more candor. Since lying in public for financial gain is the heart of advertising, that may not be discipline-worthy conduct. But lying in court, consciously attempting to mislead the court, or misrepresenting facts or legal authority to the court may violate statutes and rules of court. But it does not rise to the level of discipline-worthy conduct, at least not in California. 