Abraham Lincoln, Lawyer, 1854
DQ Upheld for Former CEO of Plaintiff Now Representing Defendant
O'Gara Coach Company LLC v. Ra, Second App. Dist., Div. 7, case no. B286730, filed 1/7/19.  Richie was hired by plaintiff O'Gara and ultimately promoted to be President and Chief Operating Officer.  RIchie's employment with plaintiff terminated in September 2016. In March 2017, O'Gara filed a cross-complaint against another former senior executive Ra in ongoing litigation. In the meantime, Richie passed the February 2017 bar examination, created a law firm (Richie Litigation) in May 2017 and hired a California licensed lawyer, Lu, in June 2017 before ultimately being licensed to practice law in California in August 2017.  Lu substituted into the litigation as counsel for Ra and two other two other plaintiffs asserting claims against O'Gara in other matters. O'Gara moved to disqualify Richie Litigation. The trial court denied the motion because no attorney-client relationship existed between Richie and O'Gara. The Court of Appeal reversed, finding that the trial court failed to consider O'Gara's alternate argument that disqualification of Richie and his law firm was required as a prophylactic measure because the firm was in possession of confidential information, protected by O'Gara's attorney-client privilege, concerning Ra's allegedly fraudulent activities at issue in this litigation.
Court of Appeal Upholds $50,000 Attorney Sanction for Revealing Confidential Information from Child Custody Evaluation Report
Marriage of Anka & Yeager , Sixth App. Dist., case no B281760, filed 2/4/19.  Anna and Louis dissolved their marriage but child custody issues remained.  The Court ordered a child custody evaluation and the report included a psychological evaluation.  Anna remarried and that marriage also dissolved, leaving child custody issues as well.  Attorney Meyer represented Anna in both actions. Meyer took Louis's deposition in the second action and asked him questions based on the child custody evaluation report, confidential under Family Code §§3025.5, 3111.  The trial court sanctioned Meyer and Anna $50,000; the appellate court reversed the sanction against Anna but upheld the sanction against Meyer, commenting that "when in the heat of a contentious trial, counsel's zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands."
Denial of CCP section 473 Relief Upheld Where Attorney's Declaration In Support of "Fault" Found Not Credible
Darab B. v. Olivera, Second App. Dist., Div. 1, case no. B282972, filed 2/4/19.  Father file a petition to establish parental relationship and for sole custody of child. Mother's attorney, her third in the case, failed to file a response, despite a telephone call and a letter from opposing counsel asking her to. Attorney filed section 473 motion with declaration attesting to her fault because she believed one of mother's prior attorneys had filed a response. The trial court denied the motion. The Court of Appeal affirmed, finding that the trial court's determination that attorney's declaration was not credible in  light of the evidence of communication from opposing counsel and that the evidence did not establish attorney fault.
Public Comment: Client Perjury
The State Bar of California committee on professional responsibility and conduct is seeking public comment on proposed Proposed Formal Opinion Interim No. 14-0004.

The opinion considers: What are the attorney's duties when the attorney suspects, but does not know, a client's witness who is expected to testify at a civil trial has testified falsely, albeit favorably, for the attorney's client at deposition? What are the attorney's duties when the attorney knows, rather than merely suspects, the same witness has committed perjury and yet the client instructs the attorney to use the witness's false testimony at the upcoming civil trial? The facts are the same as Issue #2, except the attorney first learns of the perjury after the witness has testified at trial. Thus, what are the attorney's duties, if any, after a witness has committed perjury at trial but the client has instructed the attorney not to reveal the perjury?
The opinion interprets rules 1.6, 1.16, and 3.3 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6068, 6106, and 6128.
The opinion digest states: Because an attorney must represent a client zealously, the attorney may offer testimony of questionable credibility; however, because of the duty of candor to the court, an attorney must not present or use testimony known to be false even if the client has instructed them to do so. If the testimony has already been offered, the attorney must take reasonable remedial measures to correct the record without violating the duty of confidentiality. If such measures fail, the attorney may have a duty to seek to withdraw from the representation.

Deadline for comments: February 27, 2019

Direct comments to
Angela Marlaud
Office of Professional Competence
State Bar of California
180 Howard St.
San Francisco, CA 94105
Phone: 415-538-2116
Fax: 415-538-2171
Email: angela.marlaud@calbar.ca.gov
California State Bar Sets April 30 Deadline for Fingerprinting Without Penalty
The State Bar is requiring all California lawyers to comply with new California Rule of Court 9.5.5 by April 30, 2019.  Failure to do so will result in a $75 penalty.  Failure to comply before August 1, 2019 will result in a $100 penalty. Failure to comply by December 1, 2019, will result in involuntary inactive enrollment pursuant to Business and Professions Code section 6054, subdivision (d).  Attorneys are required to bear the cost of the fingerprinting.
  New Rules of Professional Conduct Now Effective
The new California Rules of Professional Conduct became effective November 1, 2018.  All lawyers admitted or practicing in California ( Rule 8.5(a)) are subject to these new rules. They follow the American Bar Association Model Rules numbering system and adopt much of the text of the Model Rules, along with many California changes. These Rules will dramatically change the way California lawyers practice -- especially new Rule 1.7 on conflicts, new Rule 1.15 on handling clients funds, new Rule 4.3 on contact with represented persons, new Rules 5.1, 5.2 and 5.3 on supervising subordinate lawyers and non-lawyers and new Rules 7.1-7.5 on advertising and solicitation.  But there is much more in the new Rules that you need to know about. Below is link the Court's order approving the Rules and the text of the new Rules.

 David C. Carr

David C. Carr is a lawyer in private practice in San Diego, California.  Since 2001 his practice has focused on representing attorneys in matters involving legal ethics and the law of lawyering, including discipline defense, bar admissions, attorney fee disputes, attorney professional responsibility and ethics advice.  

Mr. Carr graduated from  Loyola Law School in 1986 and was admitted to the California Bar that year.  After practicing in business litigation and commercial law, Mr. Carr spent 12 years as staff attorney, discipline prosecutor and manager at the State Bar of California, before returning to private practice in 2001. 

Mr. Carr is a member of the San Diego County Bar Association, where he serves on the Legal Ethics Committee. He is also a member of the  Association of Professional Responsibility Lawyers, the  Association of Discipline Defense Counsel (President from 2008 through 2010), and the State Bar Committee on Professional Responsibility and Conduct (COPRAC). Mr. Carr is a member of the adjunct faculty at Thomas Jefferson School of Law, where he has taught professional responsibility.
This is a message concerning the provision of legal services (Cal. Rule of Prof. Conduct 7.1). I am licensed to practice law in California only.  I am the responsible attorney and the  author of all content in this newsletter. I am solely responsible for its contents.