Disqualification: Square
Pegs and Round Holes
By Diane Karpman
There is a recent
disqualification case involving so many family entanglements that just sorting
them out is a significant mental strain. In Kennedy v. Eldridge, link, an attorney was justifiably disqualified from
representing his adult son in a custody and support action regarding the
attorney’s grandson, by the child’s mother.
However, before we get into
the minutia of Kennedy v. Eldridge, I must offer an early warning about an
important change occurring in the critical area of MCLE reporting. Recently, I joked about how 27,000 California lawyers were
inadvertently notified that they were going to be audited by the State Bar, and
how the e-mail notification was sent in error.
Well, now it’s going to
become a reality. The State Bar is ratcheting up its audits of lawyers’
MCLE compliance documents. Remember, these forms are submitted under penalty of
perjury.
The State Bar tested a random
sample of 635, about 1 percent of the attorneys reporting in 2011, as a
benchmark diagnostic to see how compliance was working. (Each of the three
compliance groups consists of about 60,000 lawyers).
Astonishingly, 96 of the 635
audit responses may have contained facially false compliance assertions, some
of which will require further investigation by the Office of the Chief Trial
Counsel. That is about 15 percent of the audited group. Extrapolated over the entire
2011 reporting group, it would suggest that more than 9,700 lawyers submitted
false compliance certificates.
Nobody wants to become the
focus of a State Bar investigation, especially about something administrative
and fairly simple. So, let’s all agree to keep those slips of paper
evidence of lunches long ago. How about taking a smartphone photo of the
documents?
MCLE compliance should be
easy these days, but it wasn’t always that way in the past. In the
late-1990s, there was a California lawyer living in Hong Kong who could only
attend a half-hour once a month, and who was required to submit a petition for
approval every other month. She would take the Star Ferry across from Kowloon, to the class site and then submit a petition for approval. Nowadays, approved MCLE
classes are readily available online, via tapes and in other forms. Be glad you
don’t have to cross Hong Kong harbor on the Star Ferry.
Now, let’s get back to
the Kennedy case.
Remember that representing
friends and family members is a well‑established red flag in the legal
ethics community. It’s one step away from representing yourself and
having “a fool for a client,” and almost always creates substantial
conflicts of interest. See California Bar Journal January 2005,
Clearly, a lawyer should not
represent his son in a roiling, bitter custody dispute over the lawyer’s
grandson. How do you exercise independent judgment? And it’s a few steps
away from William Styron’s classic book "Sophie’s
Choice." How do you choose between your son or your grandson?
The Kennedy case involving
these issues raised quite a ruckus in the ethics community. Many requested
depublication of the decision, not because the result was incorrect, but
because the analysis was unconventional, unorthodox and resuscitated a
long-dead standard of disqualification. The court held that "the
multiple and interconnected family entanglements present here results in a
strong appearance of impropriety and undermines the integrity of the judicial
system." (at page 1212) The appearance-of-impropriety standard is not
applicable to lawyers; it’s too ethereal and is a standard applied to the
judiciary. Remember, “that disqualification is a drastic course of action
that should not be taken simply out of hypersensitivity to ethical nuisance or
the appearance of impropriety.” Roush v. Seagate Technology, Inc. (2007)
150 Cal. App. 4th 210, 219
The court was clearly
struggling. There are two "tells" that are dead giveaways that a
disqualification decision will be provocative and controversial. Both were
present in this case.
One, the "square pegs
and round holes argument" is always a sign that something radical will
appear in a case. That is something that fails to fit within the parameters of
existing cases, and appears in only a handful of conflict-of-interest cases.
The other is the reliance on Rules of Professional Conduct 1‑100, for the
idea that the existing rules are not exclusive. Both of those appearing in one
case are huge indicators of unorthodox reasoning for the right result.
The "money quote"
in the case was "And what about little Calvin?" (Kennedy at page
1212) That should have been a reminder that the case is about an actual, human
child and not about protracted and intense reasoning in a Cirque du Soleil
decision.
In myths and fables about the
legendary Warren Court, it was said that the justices would meet in conference,
decide what results they wanted to reach and then figure out how to get there.
Maybe that is what occurred in the Kennedy case.
Legal ethics expert Diane
Karpman (http://www.karpman.com/) can be reached
at 310‑887‑3900 or at karpethics@aol.com. Ms. Karpman is a State
Bar Certified Specialist in Legal Malpractice, and is frequently employed in
risk management for law firms, in addition to assisting in State Bar matters.