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Ethics Byte

Disqualification: Square Pegs and Round Holes

By Diane Karpman

Diane KarpmanThere 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 ( can be reached at 310‑887‑3900 or at 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.