[textbook]Traversing the Ethical Minefield Problems, Law, and Professional Responsibility by Susan R. Martyn (z-lib.org)(1) (1)

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949 P.2d 1 (Cal. 1998), cert. denied, 525 U.S. 920 (1998)CHIN, J.Business and Professions Code section 6125 states: “No person shall practice law inCalifornia unless the person is an active member of the State Bar . . . .” We must decidewhether an out-of-state law firm, not licensed to practice law in this state, violated section6125 when it performed legal services in California for a California-based client under a feeagreement stipulating that California law would govern all matters in the representation. . ..Birbrower is a professional law corporation incorporated in New York, with itsprincipal place of business in New York. During 1992 and 1993, Birbrower attorneys,defendants Kevin F. Hobbs and Thomas A. Condon (Hobbs and Condon), performedsubstantial work in California relating to the law firm’s representation of ESQ. NeitherHobbs nor Condon has ever been licensed to practice law in California. None ofBirbrower’s attorneys were licensed to practice law in California during Birbrower’s ESQrepresentation.ESQ is a California corporation with its principal place of business in Santa ClaraCounty. In July 1992, the parties negotiated and executed the fee agreement in New York,providing that Birbrower would perform legal services for ESQ, including “All matterspertaining to the investigation of and prosecution of all claims and causes of action againstTandem Computers Incorporated [Tandem].” The “claims and causes of action” againstTandem, a Delaware corporation with its principal place of business in Santa ClaraCounty, California, related to a software development and marketing contract betweenTandem and ESQ dated March 16, 1990 (Tandem Agreement). The Tandem Agreementstated that “The internal laws of the State of California (irrespective of its choice of lawprinciples) shall govern the validity of this Agreement, the construction of its terms, and theinterpretation and enforcement of the rights and duties of the parties hereto.” Birbrowerasserts, and ESQ disputes, that ESQ knew Birbrower was not licensed to practice law inCalifornia. . . .ESQ eventually settled the Tandem dispute, . . . [but before the settlement, ESQ andBirbrower modified their 1/3 contingency fee agreement to a fixed fee of over $1 million].In January 1994, ESQ sued Birbrower for legal malpractice and related claims in SantaClara County Superior Court. Birbrower removed the matter to federal court and filed acounterclaim, which included a claim for attorney fees for the work it performed in bothCalifornia and New York. The matter was then remanded to the superior court. . . . ESQargued that by practicing law without a license in California and by failing to associate legalcounsel while doing so, Birbrower violated section 6125, rendering the fee agreementunenforceable. . . .A. The Unauthorized Practice of LawThe California Legislature enacted section 6125 in 1927 as part of the State Bar Act482
(the Act), a comprehensive scheme regulating the practice of law in the state. . . .A violation of section 6125 is a misdemeanor. Moreover, “No one may recovercompensation for services as an attorney at law in this state unless [the person] was at thetime the services were performed a member of The State Bar.”Although the Act did not define the term “practice law,” case law explained it as “ ‘thedoing and performing services in a court of justice in any matter depending thereinthroughout its various stages and in conformity with the adopted rules of procedure.’ ”(People v. Merchants Protective Corp., 209 P. 363, 365 (Cal. 1922).) Merchants includedin its definition legal advice and legal instrument and contract preparation, whether or notthese subjects were rendered in the course of litigation. . . .Section 6125 has generated numerous opinions on the meaning of “practice law” butnone on the meaning of “in California.” In our view, the practice of law “in California”entails sufficient contact with the California client to render the nature of the legal service aclear legal representation. In addition to a quantitative analysis, we must consider thenature of the unlicensed lawyer’s activities in the state. Mere fortuitous or attenuatedcontacts will not sustain a finding that the unlicensed lawyer practiced law “in California.”The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in thestate, or created a continuing relationship with the California client that included legalduties and obligations.Our definition does not necessarily depend on or require the unlicensed lawyer’sphysical presence in the state. Physical presence here is one factor we may consider indeciding whether the unlicensed lawyer has violated section 6125, but it is by no meansexclusive. For example, one may practice law in the state in violation of section 6125although not physically present here by advising a California client on California law inconnection with a California legal dispute by telephone, fax, computer, or other moderntechnological means. Conversely, although we decline to provide a comprehensive list ofwhat activities constitute sufficient contact with the state, we do reject the notion that aperson automatically practices law “in California” whenever that person practices Californialaw anywhere, or “virtually” enters the state by telephone, fax, e-mail, or satellite. . . .Exceptions to section 6125 do exist, but are generally limited to allowing out-of-stateattorneys to make brief appearances before a state court or tribunal. . . .The Act does not regulate practice before United States courts. Thus, an out-of-stateattorney engaged to render services in bankruptcy proceedings was entitled to collect hisfee.Finally, California Rules of Court, rule 988, permits the State Bar to issue registrationcertificates to foreign legal consultants who may advise on the law of the foreignjurisdiction where they are admitted [but] may not, however, appear as attorneys before aCalifornia court or judicial officer or otherwise prepare pleadings and instruments inCalifornia or give advice on the law of California. . . .The Legislature has recognized an exception to section 6125 in international disputesresolved in California under the state’s rules for arbitration and conciliation of internationalcommercial disputes. . . .483
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Traversing the EthicalMinefield2
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David Alan SklanskyStanley Morrison
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Copyright © 2018 CCH Incorporated.
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For PeterandFor Our GrandchildrenVi
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ContentsPrefaceAcknowledgmentsPART
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Problems3. Authority in Representin
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ProblemsC. Compliance with Law or C
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The Law Governing Lawyers: Loss of
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B. Wrongful Discharge1. Inside Coun
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Chapter 16: Judicial EthicsA. Intro
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when Martyn & Fox has a range of op
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AcknowledgmentsWe could not have co
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Attorneys (2015)26
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Chapter 1Lawyers, Role, and LawA. L
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questions why lawyers should apply
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Lawyers who see themselves as trans
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“entire devotion to the interest
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The truth-based rationale for the a
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fosters, such as individual initiat
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that alimony can be negotiated late
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behavior in a civil or criminal cas
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andc. is not inconsistent with gene
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define the practice of law. 4Campbe
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previously prepared by a lawyer”
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power to provide for the deportatio
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other law students, in which he thr
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adversaries, courts, and others wit
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C. Professional Discipline Model Ru
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adversely on their ability to pract
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AHP. He did not inform them that th
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5.1(c)(1).”The Trial Commissioner
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wrongfulness of the conduct and cha
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Chapter 3Beginning the Client-Lawye
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competence because they fear they l
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PIESTER, Magistrate Judge. . . .In
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the peaceful resolution of private
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barriers that block understanding b
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3-6. Should Martyn & Fox represent
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Limited-term pro bono service, wher
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Lawyers cannot recognize or solve a
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Togstad that he would consult with
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recovered. . . .Practice Pointers:N
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Lawyer WebsitesABA Formal Opinion 1
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visitors. 22 A particular website m
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unbundled limited assistance).10. A
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Chapter 4CompetenceThis chapter exp
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A third version of the disclosure s
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the individuals owning and operatin
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to whom counsel owed a duty. Here,
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but for defendants’ negligence. P
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(b) Should Martyn tell the caller t
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which juries do not need an expert
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lawyer, reasoning that the interest
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Crawford had pledged to it had prev
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indefinite and perhaps excessive li
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immediately because two loans relat
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[P]laintiffs’ second claim for re
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with intent to defraud or injure an
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40. MR 2.3; RLGL § 95.41. McIntosh
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the client constitutes abandonment,
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entered an order denying Maples’
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abandonment by counsel continuing t
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The Clients The Sixth Amendment con
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counsel for the same crime, or when
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B. ControlModel Rules 1.2, 1.4RLGL
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Actual authority includes both expr
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redirect his actions to release the
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impairment that affected “his abi
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communicates with a client to ensur
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thorough investigation and intervie
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efforts” to ensure that the nonla
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responded that he was going to be a
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guidance in assessing the level of
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Here, Blumenfeld was retained to as
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7. In re Gault, 387 U.S. 1 (1966) (
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sufficient authority to embrace the
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The recognition of confidentiality
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was also a friend of AB’s. Unawar
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school bus. The loaded bus was knoc
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their clients, and apparently acted
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took the client as a client. The la
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The fiduciary relationship between
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me involved in it.Q. “Without get
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“The individual called — I can
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client. . . .The Court of Appeals,
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quoted language from Hickman, howev
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context of the drug industry. Howev
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Chief Justice REHNQUIST delivered t
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enforcement interest is at stake, t
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disclosure, which “heightened her
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After filing suit against petitione
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The determination that Mowbray fulf
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brakes: the ones for the cab worked
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7. Although we do not adopt a cease
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information regarding his client’
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116 N.W.2d 704 (Minn. 1962)THOMAS G
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questionable remedy he may have aga
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The district attorney announces the
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the matter is remanded for further
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advice not to remove documents from
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Moreover, where a law firm believes
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2013, the United States issued a su
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ESG Capital [also] must plead facts
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as part of the fraudulent Facebook
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fraud, deceit, and dishonesty, 17 f
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called “noisy withdrawal”: givi
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Nonetheless, twenty years later, wi
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lawyer who knew his client had kill
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for you to do anything other than w
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crimes. The indictment alleged that
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harshly than the law requires. Beca
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illicit activity for the exception
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point, a successor in interest, suc
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6. E.g., Thomas H. Lee Equity Fund
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15. MR 2.3, RLGL § 95.16. MR 1.16(
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stock at $17 a share. He alleges th
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plaintiffs named him as a defendant
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enforcement officials for the commi
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of this court would have been much
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prejudicial to the administration o
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pardoned for the crime. 12 At the s
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accident in which the Fennimores’
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misrepresentation, in violation of
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sanctionable under Rule 38. We dire
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Thus, in December 1991, when Snyder
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The administrative record in this c
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probate judge. Is Fox in trouble?5.
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I might sum it up in this way: Of c
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15. E.g., N.Y. Jud. Law § 90(4) (M
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In the last three chapters, we saw
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business information, including Mar
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attorneys who breach their fiduciar
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respect to the divorce. Rule [1.12(
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Third, orders granting or denying d
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ability to “recommend or advocate
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4. Employer and Employee Model Rule
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officers to keep Sanford in the res
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C. The Legal Principles. . . The [C
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the contract contained a clause mak
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— in other words, it is within at
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A lawyer’s obligation to communic
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property. Recently, Lawyer prepared
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follows automatically, regardless o
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Jonathan W. FELDMAN, United States
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line of the corporate parent,” la
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During the representation, misunder
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2. Identification of the client org
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1. Restatement (Third) of Agency §
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Chapter 10Conflicts of Interest:Spe
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This statement of general principle
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the ladder at their respective plac
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handle each.Financially, Peter coul
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trying to cover his butt. If the ap
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10-2. Great business development id
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ATo determine whether actual damage
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Section [37] sets out consideration
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require proof of other damages and
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choice. The majority pointed out th
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IV. Ethical Violations. . . Monroe
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10-8. Martyn & Fox represents Big B
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remain focused on the interests of
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which means that the insurer must p
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damages only the insurer. . . .Para
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additional coverage from another ca
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10-11. Martyn & Fox is hired by Ins
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be vicariously liable for abuse of
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Chapter 11Conflicts of Interest: Fo
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obtaining informed consent, the for
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Officials, including the Planning C
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mistaken. A comment to that provisi
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conflict with their representation
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The public’s trust in the legal s
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Plaintiff’s characterization of L
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Kevin Costello provided the only ev
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Several minutes later, as the discu
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client matter is opened by the firm
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ensure that the screened lawyer act
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Lawyers and Clients:Representing Go
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the political or cabinet head of th
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rules of professional conduct and o
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that provided, “All personnel of
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employees, their partners, and thei
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but nevertheless face clients who a
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the extent that she rounds up to mi
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say that the lawyer who agreed to h
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represent Timothy. Fordham describe
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to educate himself in the relevant
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but all lawyers, in terms of their
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Problems12-1. Martyn flies to San F
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contingent fees demonstrates, for a
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the respondent to prepare a will an
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without adequate time or staffing t
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arbitrator awarded Perez $2,100.00,
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We also agree with the board’s de
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jurisdictions. 13 Most important ar
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The Superior Court judge determined
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Moore, which settled the suit for $
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are adequately enforced. Section 19
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far as the court’s opinion reveal
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. . . was far superior to what cons
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3. Burlington v. Dague, 505 U.S. 55
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Let me make clear that the above op
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law. We reached that conclusion the
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inventory included several accounts
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value of the estate fraudulently in
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Securities and Exchange Commission
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Wadler was fired for other reasons,
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discharge, holding that the at-will
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Formal Ethics Opinion No. 116 (2007
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inquire whether the call is regardi
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firm, none of them shall knowingly
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12. Colo. RPC 1.4.14. . . . [T]he l
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Chapter 14The Bounds of the LawA. I
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Lawyers as GatekeepersThe applicati
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Christian v. Mattel, Inc.286 F.3d 1
Page 432 and 433: deter costly meritless maneuvers, .
Page 434 and 435: Problem14-4. Martyn & Fox filed a l
Page 436 and 437: the emails then existing on Mr. Rom
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Page 448 and 449: party’s counsel. . . . Pursuant t
Page 450 and 451: G. Communication with Unrepresented
Page 452 and 453: acts or omissions in the matter und
Page 454 and 455: Martyn & Fox if we will get one of
Page 456 and 457: Part IVLawyers and Society:The Prof
Page 458 and 459: I. Under what circumstances does Ru
Page 460 and 461: applies.IV. Does a lawyer have a du
Page 462 and 463: ConclusionUnder amended Rule 8.3, a
Page 464 and 465: [A]s we noted with respect to our a
Page 466 and 467: to whom the communication is addres
Page 468 and 469: about those attorneys who use direc
Page 470 and 471: most critical question by assuming
Page 472 and 473: 11. Attorneys may Advertise on a So
Page 474 and 475: In Button, the Court overturned a V
Page 476 and 477: this distinction.Other First Amendm
Page 478 and 479: due process guarantees. 27 In crimi
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Page 484 and 485: B. The Present Case. . . As the Cou
Page 486 and 487: casebook. For example, we noted tha
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Page 490 and 491: (2012).4. See The Bounds of the Law
Page 492 and 493: regulations. 12Unlike lawyers, howe
Page 494 and 495: All of these categories except pers
Page 496 and 497: proceeds with eight Justices, raisi
Page 498 and 499: the Vice President’s guest on Air
Page 500 and 501: would be proper for me to recuse. T
Page 502 and 503: Cheney and he never shared a duck b
Page 504 and 505: persuasive opinion — even if the
Page 506 and 507: Supreme Court and was serving as it
Page 508 and 509: unconstitutional risk of bias.As an
Page 510 and 511: Chief Justice ROBERTS, with whom Ju
Page 512 and 513: Chief Justice ROBERTS delivered the
Page 514 and 515: much as a judge’s personal solici
Page 516 and 517: opportunity to engage in the campai
Page 518 and 519: practice in controversy”).43. CJC
Page 520 and 521: Battle v. Thornton, 79Bayview Loan
Page 522 and 523: Commodity Futures Trading Comm’n
Page 524 and 525: Forrest, In re, 214, 225Framm; Atto
Page 526 and 527: Hughes v. Meade, 137, 138, 139, 141
Page 528 and 529: MMachado v. Statewide Grievance Com
Page 530 and 531: Palsgraf v. Long Island R.R. Co., 5
Page 532 and 533:
SSabine Pilot Serv. v. Hauck, 382St
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Treinen, In re, 212Tumey v. Ohio, 4
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Table of Model Rules,Restatements,
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1.7 247, 250, 251, 254, 264, 267, 2
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1.12(a) 2361.12(b) 235, 2361.12(c)
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4.1 413, 415, 4754.1 Comment [3] 18
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2-106(B) 341Federal Statutes and Ad
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Colorado Bar Ass’n, Ethics Comm.
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Indiana R. of Prof. Conduct §1.5(a
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§165.042 92§166.715-166.735 92§1
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§31 384§31 Comment 1 97§32 369,
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§95 81, 83, 115§96 54, 110§97 54
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§51 181Restatement (Second) of Tor
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§2.11 Comment 1 457§2.11(A) 458§
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§2.06 213§2.06(3)(a) 213§5.03 21
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Agency law, duty of control, 106-10
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commingling of funds, 354-356common
Page 566 and 567:
what to disclose, 115-116who should
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clear and serious violations, 283cl
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overview, 42-43, 93-94Restatement (
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of lawyers, 225, 227malpractice, 78
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disclosure, 184-185fiduciary duty,
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disqualification of lawyers, 323dut
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Judges. See also Judicial ethicscom
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criminal defense representation, 10
Page 582 and 583:
organizational clients, 261-264over
Page 584 and 585:
Pretrial publicity, First Amendment
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as gatekeepers, 395-396as instrumen
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United Kingdommultidisciplinary pra
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