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Balancing professional duties can be like walking a tightrope

Diane KarpmanThe degree of candor required of lawyers in settlement conferences is something that creates a great deal of lawyer stress. Lawyers must balance the duty of candor to the court (Business and Professions Code § 6068 (d)) and the obligation not to mislead opposing counsel against the duty to obtain the best deal they can for their clients. That can be like walking a tightrope, as is evidenced In the Matter of Jeffers (1994) 3 Cal. State Bar Ct. Rptr. 211, where the lawyer was disciplined (in part) for intentionally misleading the settlement judge about the facts in the case.

Jeffers represented his friend Craddock as the defendant in a personal injury case in which Craddock maintained his innocence as the driver. Craddock had a stroke and a conservator was appointed. Jeffers represented the conservator. A settlement conference was scheduled in the personal injury case and Jeffers attended. Before another scheduled settlement conference, Craddock passed away and plaintiff’s counsel privately informed the court of Craddock's death.

The court reconvened the conference and began a game of “20 questions” with Jeffers. The court inquired about Jeffers’ recent “conversations” with Craddock. For example, how, if a conservator had been appointed, did Jeffers communicate with Craddock? Was Craddock unconscious or otherwise mentally incapacitated? Jeffers dodged these and many similar questions.

Jeffers was struggling to preserve Craddock’s position, unaware that the court was aware of Craddock’s death. What about the court’s parallel duty not to mislead lawyers, you may ask. That never became an issue in the Jeffers’ disciplinary trial, in which he received 30 days’ actual suspension.

The court, in a rapid-fire series of questions, was attempting to ferret out lawyer misconduct. Eventually, attorney Jeffers did acknowledge that his client had passed on. However, it would seem, according to this case, he didn’t do so quickly enough to satisfy the court.

Dying clients can create serious problems (except possibly for probate specialists). In Drociak v State Bar (1991) 52 Cal. 3d 1085, a lawyer had obtained several pre-signed verifications from his client. After attempting to locate her without success, and with discovery due, he attached a pre-signed verification as an accommodation to his client to interrogatories he created from information in the client’s file. Drociak was disciplined and suspended for 30 days when it was subsequently learned that his client had died. “The use of pre-signed verification in discovery proceedings without first consulting with the client to assure that any assertions of fact are true is a clear and serious violation of the statutes and rules.”

Pre-signed verifications could cause the opposing party to offer an undeserved settlement based on erroneous facts, pose a threat to the administration of justice and involve the commission of an act of moral turpitude (Business and Professions Code § 6106). The lesson to be learned in Drociak is to not use pre-signed verifications. A similar problem could result from pre-signed undated substitutions.

It’s perplexing that in both cases the opposing attorney knew about the client’s death. In Jeffers, counsel informed the court; and in Drociak, rather than bring it to the lawyer’s attention, counsel chose to remain mute. Clearly, what occurred in both cases was wrong. But some have suggested that possibly all of this could have been avoided if opposing counsel had recognized their duty and simply said something. The duty not to mislead opposing counsel (In the Matter of Katz (1995) 3 Cal. State Bar Ct. Rptr. 430, 435) runs both ways.

Legal ethics expert Diane Karpman can be reached at 310-887-3900 or at karpethics@aol.com.