A couple of recently decided ethics cases significantly impact California lawyers in practice. The first is Kennedy v. Eldridge, 201 Cal.App.4th 1197 (2011), which has an odd and complex fact pattern. Put simply, that case involved a custody dispute between Kayla Kennedy and Tyler Eldridge. Tyler’s father, Richard Eldridge, represented Tyler in the custody dispute and Kayla brought a motion to disqualify Richard from representation, alleging that Richard had access to her personal information because Richard had represented Kayla’s father in his divorce case, consulted with her stepmother who was an employee of Richard Eldridge’s law firm at the time of Kayla’s father’s divorce, obtained prepared declarations from Kayla during the course of Kayla’s father’s divorce, and that Kayla had worked as a process server for the Eldridge firm.
Although Kayla herself was not the previous client, the trial court reasoned that Richard Eldridge may have acquired confidential information that could put Kayla at a disadvantage during the current custody dispute and thus held that Kayla had standing to disqualify Richard, despite the fact that she was not a former client.
Interestingly, the court applied the ABA Model Rule of Professional Conduct 3.7, prohibiting an attorney from being an advocate at a trial in which he is a necessary witness because Richard Eldridge might have to testify against Kayla. Under California Rule of Professional Conduct 1-100, the ABA Model Rules do not apply to California lawyers, however, the court ruled that California courts could look to other ethical guidelines for guidance.
This is a big change and the first case where a California state court has held that the ABA Model Rules can apply to California lawyers. I think they allowed this because our rules are out of date and the new proposed rules are still unapproved by the California Supreme Court. They were finished years ago but with the California Supreme Court backlogged they have not had time to approve the new set of rules. This case is indicative of how the courts and eventually the State Bar may analyze ethical matters.
Another case, Cole v. Meyer, 206 Cal.App.4th 1095 (2012), is also noteworthy for practitioners. There, the director of a company sued the attorneys of the company’s shareholders for malicious prosecution and defamation. Attorneys that served as standby counsel were also included in the suit. The court found that the underlying claims brought in the original lawsuit were not supported by probable cause.
Standby counsel asserted that they were completely unfamiliar with the case, but the Court rejected their claim and asserted that as counsel of record who appeared in all the pleadings filed, the attorneys had a duty of care to their clients that required them to know the law and exercise informed judgment. Thus, although the attorneys could rely to a certain degree on their co-counsel’s investigation of the claims, they themselves were obligated to become sufficiently informed on the subject matter and evaluate their co-counsel’s work under California Rule of Professional Conduct 3-110(C).
The court found that the attorneys had signed all the filings in the original case and this supported an inference that they prosecuted that action along with the primary attorney. Thus, merely lending an attorney’s name to pleadings and motions can trigger potential liability for malpractice. The onus is upon the attorney lending his name to the action to become properly familiar with the facts of the case and judge the quality of their co-counsel’s work.
So, be prepared to accept full responsibility for any case that you co-sign.
Carol M. Langford is an attorney specializing in attorney conduct matters. She is also an adjunct professor at the University of California Berkeley, Boalt Hall School of Law. She is a part Chair of the State Bar Committee on Professional Responsibility and Conduct.
Filed Under: Ethics Corner