ETHICAL LESSONS FOR LITIGATORS FROM THE CALIFORNIA COURTS OF APPEAL

California has over sixty rules of professional conduct intended to regulate the behavior of attorneys. Last year, the California Courts of Appeal issued three published decisions addressing rules of professional conduct that all litigators should review.

Rule 3.3: Candor Toward the Tribunal

California Rule of Professional Conduct (CRPC) 3.3(a)(2) requires a lawyer to disclose to the court legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

In People v. Williams, (2022) 75 Cal.App.5th 584, the court of appeal held that an attorney who prosecuted an appeal while failing to cite known authority that the court had no jurisdiction to entertain it violated the attorney's duty of candor.

The court rejected counsel's arguments that he did not violate his duty of candor because he personally made no affirmative representation in the opening brief that the order appealed from was an appealable order. It explained that Rule 3.3(a)(2) prohibits a lawyer from knowingly failing to disclose adverse authority, not just from making affirmative representations that are inconsistent with such authority.

The court also considered counsel's argument that his duty to refrain from arguing against his client trumps the duty of candor he owes to this court, but determined it was a false choice; the two duties are readily reconciled because the duty of candor is one of disclosure, not acquiescence. Moreover, counsel was free to make arguments to persuade the court to reach a different conclusion than the cited authority.

Rule 3.7: Lawyer as a Witness

In Lopez v. Lopez (2022), 81 Cal.App.5th 412, the court of appeal reversed a decision to disqualify an attorney despite the fact that the client had consented to the representation. CRPC 3.7 provides that a lawyer shall not act "as an advocate in a trial" in which the lawyer is likely to be a witness unless the lawyer's testimony relates to an uncontested issue or the nature and value of legal services rendered in the case; or the lawyer has obtained informed written consent from the client.

The appellate court explained that the trial court failed to apply Rule 3.7's informed-consent exception. The trial court also failed to apply Rule 3.7's limitation to advocacy "in a trial" because the court disqualified the attorney from all phases of the litigation, without acknowledging this limitation and allowing the attorney to participate in pretrial activities that would not pose any risk of fact finder confusion, such as preparing a witness or motion in limine.

Rule 3.10: Threatening Criminal, Administrative, or Disciplinary Charges

CRPC 3.10 prohibits a lawyer from threatening to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.

In Falcon Brands, Inc. v. Mousavi & Lee, LLP, (2022) 74 Cal.App.5th 506, the court of appeal examined settlement communications to evaluate whether allegations of extortion arose from constitutionally protected activity, and thus, were subject to California's anti-SLAPP statute. An attorney for an employee Falcon Brands had recently terminated threatened to write to a company in the process of acquiring Falcon Brands that Falcon Brands had engaged in illegal activities related to its cannabis business if Falcon Brands did not resolve the employee's case. The attorney did not directly link any of the alleged misconduct to her settlement demand. Falcon Brands sued the attorney for extortion and intentional interference with contract.

The court of appeal held that the conduct that gave rise to the extortion cause of action was not constitutionally protected activity. The court explained that in enacting the extortion statutes, the Legislature declared the use of fear based on certain threats as a means of obtaining property from another to be illegal. The court noted that attorneys are not exempt from these principles in their professional conduct and acknowledged CRPC 3.10.

It is important for attorneys to advocate for their clients. These three cases, however, should serve as a reminder that attorneys should not lose sight of the rules governing their conduct in representing their clients. Doing so can result in State Bar discipline and civil liability.

John Sullivan is a partner at Long & Levit LLP.