Thursday, January 10, 2008

Qualcomm And The Bar Referral

There are some interesting posts on the Qualcomm decision over on Legal Ethics Forum. I've taken another look at the discussion of attorney misconduct and the court's decision to refer six attorneys to the California State Bar for possible disciplinary action. Some thoughts:

The court "envisions four [possible] scenarios" and concludes that "the lawyers suspected there was additional evidence or information but chose to ignore the evidence and warning signs and accept Qualcomm's incredible assertions regarding the adequacy of the document search and witness investigation" is the most likely explanation. The court notes (footnote 8) that its fact-finding was hamstrung to a degree by Qualcomm's assertion of the attorney-client privilege ("Several attorneys complained that the assertion of the privilege prevented them from providing additional information regarding their conduct...concern was heightened when Qualcomm submitted its self-serving declarations describing the failings of its retained lawyers").The court then describes the found misconduct in the terms of "lawyers chose not to accept unsubstantiated ignore the warning signs...not to press...for the truth, and/or to encourage employees to provide the information..." Finally, the court sets out in detail in Appendix A the professional background and relative seniority of a number of Qualcomm lawyers including the Sanctioned Six.

What will the California Bar do with this? First, it cannot rely on any concept of collateral estoppel based on the district court decision. The bar will have to conduct its own investigation and decide whether to file charges. Investigations are confidential unless and until charges are filed. Second, the bar cannot sanction firms. Charges must be filed and proven against individual lawyers. Third, California privilege is governed by statute and Rule 3-100 of the California Rules of Professional Conduct, rather than a version of Model Rule 1.6. This could significantly impact on the issue of the extent to which the lawyers may respond to and defend against any charges, which would clearly be allowed by Model Rule 1.6(b)(5). Fourth, it will take awhile to sort it all out, particularly if disciplinary counsel defers action until all related appeals are resolved.

If charges are filed, it is possible that some or all of the Sanctioned Six would be the subject of a single charging document that alleges that the attorneys acted in concert without attempting to sort out in detail the specifics of the misconduct as to each individual lawyer. Such charges would put the accused lawyers in a posture where they would likely testify in their own defense and point fingers at the others. The process would be complicated by the fact that some of the accused may be supervised by other accused lawyers in the same firm. This creates an unenviable dilemma for the junior lawyer of whether to take blame or attempt to foist it on a supervisor. I've dealt with this problem as a disciplinary prosecutor and the junior lawyer generally either walks the plank or leaves the firm or both.

The bar will have to deal with difficult issues of assessing the relative responsibility of supervised and supervising lawyers as well as lawyer/client relative culpability. A further complication will be the level of cooperation the bar gets from the former client and the reliability of Qualcomm's contentions if it chooses to cooperate. I don't expect this will be resolved promptly and don't envy the task. Meanwhile, the Qualcomm decision provides plenty of food for thought and for meaningful discussion with students taking professional responsibility. (Mike Frisch)

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Mike, I was hoping you'd do just what you did -- read the [excellent] blogging on this topic over at LEF, then add you own thoughts on it and as to the process that follows. I especially like your insight that "self defense" may not be as readily available to break confidentiality to a California lawyer.

I wonder how much of that "strong" notion of privilege and confidentiality will change, if at all, as California moves towards implementing Ethics 2000. Stay tuned.

Posted by: Childress | Jan 10, 2008 9:33:24 AM

Mike & Alan,

I look forward to your continued postings about Qualcomm.

Although neither our rule 3-100 nor the State Bar Act have express exceptions that match 1.6(b)(5), I am pretty sure that case law permits limited use of confidences to the extent necessary to defend client claims or necessary to sue for fees. Vapnek, et al., California Practice Guide: Professional Responsibility, at section 7:121 (and authorities cited there).

I've always believed that not only does the same rule apply in California State Bar discipline matters, but further that the client is *required* to be fully candid in those proceedings (confidentiality notwithstanding). I don't do respondent's work, so I could be wrong on the latter point.

Sometimes when we California lawyers trumpet our "uniquely strong" duty of confidentiality, we forget to mention that case law provides some exceptions. To be sure, we don't have the "financial fraud" exception.

Posted by: John Steele | Jan 10, 2008 12:39:12 PM

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