—————————————————————————————————————————————————————————

Research References

Cross References

Violation of duties,

Law Review And Journal Commentaries

Library References

Collateral References:

 Notes Of Decisions

Acting for adverse parties, confidential relations 15
Admitted misconduct 27
Adverse interests 16
Adverse parties, confidential relations 15
Attorney-client relationship 2
Bribery 25
Competence 19.5
.5 Confidential relations 14-15
Confidential relations - In general 14
Confidential relations - Acting for adverse parties 15
Confidential relations - Former employer 15.5
Conflict of interest 16
Construction and application 1
Damages 30
Defense of persons charged with public offense 4
Defenseless or oppressed, representation of 5
Dereliction of duty 21
Disciplinary investigation, respect due courts 8.5
Disclosure duties, truthful means 12
Evidence, interference with 9
False or misleading evidence, truthful means 11
Fees 23
Fidelity to client 16
Fiduciary duties 17
Former employer, confidential relations 15.5
Interference with evidence 9
Just or meritorious proceedings 13
Loyalty to client 16
Means consistent with truth 10
Misappropriation 29
Misleading evidence, truthful means 11
Misrepresentation to client 16.5
Negligence 19
Negotiation and settlement 31
Notice to clients 33
Offensive personality 32
Officer of court 3
Oppressed, representation of 5
Pleadings 4.5
Pleadings and papers, respect due courts 7
Pro bono work 5
Prosecutors 5.5
Publications, respect due courts 8
Records 18
Referral to specialist 24
.5 Respect due courts 6-8
Respect due courts - In general 6
Respect due courts - Disciplinary investigation 8.5
Respect due courts - Pleadings and papers 7
Respect due courts - Publications 8
Retaliatory discharge 34
Support of constitution and law 3.5
Tax returns 26
Third party clients 20
Truthful means 10-12
Truthful means - In general 10
Truthful means - Disclosure duties 12
Truthful means - False or misleading evidence 11
Validity 1/2
Willful disobedience 28
Withdrawal 22

1/2. Validity

California statute prohibiting attorney from engaging in "offensive personality" implicated constitutionally protected conduct, free speech, and could be challenged as facially unconstitutional. U.S. v. Wunsch, C.A.9 (Cal.)1996, 84 F.3d 1110.

California statute prohibiting attorney from engaging in "offensive personality" was unconstitutionally vague; "offensive personality" could refer to any number of behaviors that many attorneys regularly engage in during course of their zealous representation of their clients' interests, and was likely to have effect of chilling some speech that was constitutionally protected. U.S. v. Wunsch, C.A.9 (Cal.)1996, 84 F.3d 1110.

1. Construction and application

Bus. & Prof.C. § 6068 governing duties of attorney and Rules of Professional Conduct, rule 7-105 regarding misrepresentations to the court, do not apply only to lawyers who are acting in their role as advocates for others. Davis v. State Bar of California (1983) 188 Cal.Rptr. 441, 33 Cal.3d 231, 655 P.2d 1276.

Petitioner's failure to render or finish legal services after receiving retainer therefor, failure to respond to clients' inquiries, failure to deposit clients' funds in trust account, misrepresentation regarding refund of legal fees, withholding legal fees from clients' funds without prior agreement therefor, and showing disrespect to trial court was considered wilful misconduct in violation of his oath and duties as an attorney. Inniss v. State Bar (1978) 143 Cal.Rptr. 408, 20 Cal.3d 552, 573 P.2d 852.

Whether appointed to represent an indigent or employed by a man of wealth or by the state, the diligence and quality of the lawyer's service and the ethical standards of his conduct are the same; his office and the prerogatives of that office, and the respect due to him in the discharge of his duties, are the same. People v. Mattson (1959) 51 Cal.2d 777, 336 P.2d 937.

An attorney who exacted money from his client upon the false representation that he was authorized to practice in a United States court, and would conduct her case therein, violated his oath and duties as an attorney, as prescribed by C.C.P. § 282 (repealed; see, now, this section). In re Danford (1910) 157 Cal. 425, 108 P. 322.

2. Attorney-client relationship

Attorney who was hired by parties to real estate transaction to draft exchange agreement and promissory note was not in an attorney-client relationship with opposing parties to transaction, and thus, those opposing parties had no cause of action in breach of fiduciary duty or other duty arising from attorney-client relationship based on attorney's actions with respect to transaction, even though they "thought" attorney was representing their interests, where opposing parties did not hire or retain the attorney, attorney did not render any legal advice to them, and they had no contact with attorney other than single occasion on which they visited his office for sole purpose of executing exchange agreement. Fox v. Pollack (App. 1 Dist. 1986) 226 Cal.Rptr. 532, 181 Cal.App.3d 954, rehearing denied, review denied.

3. Officer of court

Attorney is an advocate and officer of the court. Norton v. Hines (App. 2 Dist. 1975) 123 Cal.Rptr. 237, 49 Cal.App.3d 917.

A lawyer is an officer of the court and as such he should not attempt to evade or impede the orderly administration of justice. Floro v. Lawton (App. 2 Dist. 1960) 10 Cal.Rptr. 98, 187 Cal.App.2d 657.

An attorney at law is a member of an ancient, honorable and deservingly honored profession; he is regarded as an officer of the court, of any court in which he appears. People v. Mattson (1959) 51 Cal.2d 777, 336 P.2d 93.

Attorneys are court officers, whose obligation to aid court in avoiding error and determining cause in accordance with justice and established rules of practice is as imperative as their duty to protest and defend their clients' interests. Daily v. Superior Court of Monterey County (App. 1935) 4 Cal.App.2d 127, 40 P.2d 936.

Attorneys are officers of court and answerable to it for proper performance of professional duties, and they appear and participate in its proceedings only by license of court. Clark v. Willett (1868) 35 Cal. 534.

3.5. Support of constitution and law

Attorney's alleged acts of moral turpitude and violations of Rules of Professional Conduct do not necessarily constitute violation of statute setting forth attorney's duty to support Federal and State Constitution and laws. Lipson v. State Bar of California (1991) 281 Cal.Rptr. 775, 53 Cal.3d 1010, 810 P.2d 1007.

4. Defense of persons charged with public offense

Statute imposing duty on attorney to counsel or maintain only such defenses as appear to him legal or just except in the defense of a person charged with a public offense does not compel an attorney to accede to a criminal defendant's insistence that suppression motion be filed. People v. Turner (App. 5 Dist. 1992) 10 Cal.Rptr.2d 358, 7 Cal.App.4th 1214.

Criminal defense attorney is obligated to investigate carefully all defenses of fact and law that may be available to the accused, but attorney is not required to comply with client's wishes in matters of trial tactics which experience, sound judgment, law, or ethics indicate are not consistent with client's best interest or the orderly and expeditious administration of law. People v. Turner (App. 5 Dist. 1992) 10 Cal.Rptr.2d 358, 7 Cal.App.4th 1214.

It is counsel's duty to investigate carefully all defense of fact and of law that may be available to defendant and if his failure to do so results in withdrawing crucial defense from case, defendant has not had assistance to which he is entitled. People v. McDowell (1968) 73 Cal.Rptr. 1, 69 Cal.2d 737, 447 P.2d 97.

4.5. Pleadings

Variance between notice to show cause, charging only commingling, and findings, which include determination that attorney misappropriated client funds, requires striking of finding of misappropriation of client funds. Read v. State Bar of California (1991) 279 Cal.Rptr. 818, 53 Cal.3d 394, 53 Cal.3d 1009A, 807 P.2d 1047, modified on denial of rehearing.

5. Defenseless or oppressed, representation of

Part of public service obligation of the bar is performance of pro bono work. Bradshaw v. U.S. Dist. Court for Southern Dist. of California, C.A.9 (Cal.)1984, 742 F.2d 515.

Absent statutory authorization, an appointed attorney must serve gratuitously in accordance with his duty never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed, and courts lack power to order expenditure of public funds for such compensation. Arnelle v. City and County of San Francisco (App. 1 Dist. 1983) 190 Cal.Rptr. 490, 141 Cal.App.3d 693.

Criteria to be used in determining a "reasonable sum for compensation" under Pen.Code, § 1241, providing for allowance of reasonable sum to court-appointed attorneys for representing indigent clients in criminal cases are the practice in other jurisdictions, minimum fee schedule adopted by local bar association, compensation paid to public officers, and the attorney's duty to the defenseless or the oppressed. Lascher v. State (1966) 51 Cal.Rptr. 270, 64 Cal.2d 687, 414 P.2d 398, certiorari denied 87 S.Ct. 287, 385 U.S. 928, 17 L.Ed.2d 211.

The criteria to be used in determining whether or not a court exercised its discretion in awarding an unreasonably small sum to compensate counsel assigned by court to defend person charged with crime are continuing duty of counsel to the "defenseless," the statutory provisions of other jurisdictions for compensation, and the general level of compensation paid to public officers in prosecuting and defending criminal proceedings. Halpin v. Superior Court In and For Shasta County (App. 3 Dist. 1966) 49 Cal.Rptr. 857, 240 Cal.App.2d 701.

The continuing duty of counsel to represent the "defenseless" regardless of personal considerations, must be kept in mind in measuring extent of right which Legislature intended to confer upon counsel by use of phrase "reasonable sum" within Pen.C. § 987a (renumbered § 987.2), providing for allowance of reasonable sum to court-appointed attorneys for representing indigent clients in criminal cases. Hill v. Superior Court In and For Humboldt County (1956) 46 Cal.2d 169, 293 P.2d 10.

An attorney for defendant in a criminal case must continue with his services until he is released by client or by court for good cause shown, and he may not abandon his representation at will, nor for considerations personal to himself. People v. Massey (App. 1955) 137 Cal.App.2d 623, 290 P.2d 906.

5.5. Prosecutors

Courts expect even higher ethical standards from prosecutors; among these high standards is requirement that prosecutor not act in manner that circumvents and thereby dilutes protection afforded by right to counsel. Morrow v. Superior Court (People) (App. 2 Dist. 1994) 36 Cal.Rptr.2d 210, 30 Cal.App.4th 1252, as modified.

Prosecutor may not use courtroom as place to intentionally and surreptitiously listen to, i.e., eavesdrop upon, defendant's conversation with his attorney; indeed, eavesdropping on an attorney-client is inappropriate anywhere and cannot be tolerated. Morrow v. Superior Court (People) (App. 2 Dist. 1994) 36 Cal.Rptr.2d 210, 30 Cal.App.4th 1252, as modified.

Prosecutor is held to standard higher than that imposed on other attorneys because of unique function he or she performs in representing interests, and in exercising sovereign power, of state. People v. Espinoza (1992) 12 Cal.Rptr.2d 682, 3 Cal.4th 806, 838 P.2d 204, modified on denial of rehearing, certiorari denied 114 S.Ct. 2780, 512 U.S. 1253, 129 L.Ed.2d 891.

Conduct by prosecutor that does not render criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves use of deceptive or reprehensible methods to attempt to persuade either court or jury. People v. Espinoza (1992) 12 Cal.Rptr.2d 682, 3 Cal.4th 806, 838 P.2d 204, modified on denial of rehearing, certiorari denied 114 S.Ct. 2780, 512 U.S. 1253, 129 L.Ed.2d 891.

6. Respect due courts — In general

Criminal defense attorney's letter to assistant United States attorney containing attachment which stated in bold type, "MALE LAWYERS PLAY BY THE RULES, DISCOVER TRUTH AND RESTORE ORDER." Matter of Swan, C.D.Cal.1993, 833 F.Supp. 794, reversed 54 F.3d 579, rehearing granted, opinion withdrawn 84 F.3d 358, superseded 84 F.3d 1110.

Trial judge had authority to summarily convict and sentence defense counsel for interrupting due course of trial by making statements which, in effect, accused judge of lack of integrity; judge could either impose a fine or term of imprisonment. In re Siegel (App. 1 Dist. 1975) 120 Cal.Rptr. 8, 45 Cal.App.3d 843.

It is imperative duty of attorney to respectfully yield to rulings of court whether right or wrong; if ruling is adverse, attorney's only right is respectfully to preserve his appeal. Hawk v. Superior Court In and For Solano County (App. 1 Dist. 1974) 116 Cal.Rptr. 713, 42 Cal.App.3d 108, certiorari denied 95 S.Ct. 2417, 421 U.S. 1012, 44 L.Ed.2d 680.

Members of the bar have right to expect and demand courteous treatment by judges and court attaches; similarly, court has right to expect and demand that, in course of judicial proceedings, advocates will conduct themselves in a courteous, professional manner. In re Grossman (App. 1 Dist. 1972) 101 Cal.Rptr. 176, 24 Cal.App.3d 624.

An attorney has the duty, lacking a valid excuse, to be present at all times during trial of a case in which he is sole counsel for a party, and as officer of the court he is bound to respect and comply with its pertinent and lawful orders given in open court in his presence. Lyons v. Superior Court In and For Los Angeles County (1955) 43 Cal.2d 755, 278 P.2d 681, certiorari denied 76 S.Ct. 121, 350 U.S. 876, 100 L.Ed. 774.

Defense counsel, however zealous in his client's behalf, has, as an officer of the court, a paramount obligation to the due and orderly administration of justice and at all times should maintain a respectful attitude toward the court, and a disavowal of intentional disrespect or wrongful intent is no defense to a contempt order. Chula v. Superior Court In and For Orange County (App. 4 Dist. 1952) 109 Cal.App.2d 24, 240 P.2d 398.

An advocate may, when addressing court in regular course, combat and contest strongly any adverse view of judge or judges expressed on case during argument, object to and protest against any course taken by judge which advocate thinks irregular or detrimental to client's interests, and caution juries against judge's interference with their functions or with advocate addressing them, or against any strong view adverse to client expressed by presiding judge upon facts before verdict. Gallagher v. Municipal Court of City of Los Angeles (1948) 31 Cal.2d 784, 192 P.2d 905.

Attorneys are under obligation to uphold the dignity of the court being officers thereof, though possessing a personal dislike for the presiding judge. Platnauer v. Superior Court in and for Sacramento County (App. 1917) 32 Cal.App. 463, 163 P. 237.

An attorney should always strictly observe the principles of truth, honesty, and fairness, especially in criticisms of the court. In re Humphrey (1917) 174 Cal. 290, 163 P. 60.

7. — — Pleadings and papers, respect due courts

An attorney has the duty to protect the interests of his client and he has a right to propound a legitimate argument and to protest an erroneous ruling, and there is no rule permitting a court to punish an attorney because he is honestly mistaken in his interpretation of the law when he presents his mistaken views to the court in a proper and respectful manner. Chula v. Superior Court In and For Orange County (App. 4 Dist. 1952) 109 Cal.App.2d 24, 240 P.2d 398.

Counsel's characterization, in his brief, of court order as being "without precedent in judicial annals", and as an "opera bouffe", and as a "most covetous and wholly unwarranted usurpation of power" was highly disrespectful to court and judge, but counsel was permitted to purge himself by a frank disavowal to be disrespectful. First Nat. Bank of Auburn v. Superior Court of Lassen County (App. 1909) 12 Cal.App. 335, 107 P. 322.

Letter and attachment sent by criminal defense attorney to assistant United States attorney during course of ongoing criminal prosecution which included gender-biased attacks impugning integrity of court were not unsanctionable merely because letter was sent to government counsel at her office rather than stated in open court, where letter and attachment were both sent during course of ongoing criminal prosecution and thus occurred during conduct of litigation. Matter of Swan, C.D.Cal.1993, 833 F.Supp. 794, reversed 54 F.3d 579, rehearing granted, opinion withdrawn 84 F.3d 358, superseded 84 F.3d 1110.

8. — — Publications, respect due courts

Conduct of attorney, in asking for production in evidence, on hearing of motion, of a contemptuous letter addressed to the trial judge, the sending of which petitioner instigated, rendered attorney punishable for contempt committed in the presence of the court, in view of C.C.P. § 282 (repealed; see, now, this section). Ex parte Ewell (App. 1 Dist. 1925) 71 Cal.App. 744, 236 P. 205.

An unjustified assault upon the character or official conduct of a judge, consisting of the publication of charges which, if true, constituted misuse of judicial office or misconduct in office, was "moral turpitude" within C.C.P. § 287, subd. 5 (repealed; see, now, Bus. & Prof.C. § 6106), and a violation of the attorney's oath, § 282, subd. 2 (repealed; see, now, this section). In re Graves (App. 2 Dist. 1923) 64 Cal.App. 176, 221 P. 411.

Under C.C.P. § 282 (repealed; see, now, this section) which required attorneys to maintain respect due to courts and judicial officers, and under C.C.P. § 1209, which made violation of an attorney's duty contempt, an attorney was punishable for writing an untruthful and scandalous letter, stating that one in whose name he wrote had had a conversation with the justices of the Supreme Court in which they expressed opinions concerning a pending suit. In re Shay (1911) 160 Cal. 399, 117 P. 442.

Though it is right and duty of an attorney to bring before the court the fact of bribery or corruption of a grand jury for purpose of putting in motion court's power to prevent commission of such criminal acts, or to vacate and set aside proceedings tainted thereby, or to convict and punish persons guilty of them, it is unlawful and criminal to send accusatory and threatening communications to a court, or jury sitting with it while engaged in the discharge of its duties. In re Tyler (1884) 64 Cal. 434, 1 P. 884.

8.5. — — Disciplinary investigation, respect due courts

Failure to communicate with client, to protect client's interests, to return files on demand, to cooperate in disciplinary investigations, to withdraw from matter which attorney knows he is incompetent to handle and to give client notice of withdrawal from employment warrants actual suspension of nine months. Lister v. State Bar of California (1990) 275 Cal.Rptr. 802, 51 Cal.3d 1117, 800 P.2d 1232.

9. Interference with evidence

Where attorneys cut old inventory out of account book used by assignor for benefit of creditors, intending to use it as protection to assignor if copies sent to creditors should be assailed, and left only current inventory in book which had contained nothing but the two inventories, the transaction was not a violation of attorney's duties, or oath since the book was not a book of record, the deleted pages were not destroyed, but were promptly produced when called for. In re Disbarment of Luce (1890) 83 Cal. 303, 23 P. 350.

10. Truthful means — In general

Use of client's presigned verification in discovery proceedings without first consulting with client to assure veracity of assertions of fact warrants one-year suspension from practice of law, to be stayed during two years of supervised probation, including 30 days of actual suspension, even though attorney lacks prior record of discipline. Drociak v. State Bar of California (1991) 278 Cal.Rptr. 86, 52 Cal.3d 1085, 804 P.2d 711.

Attorney is officer of court, and accordingly, he is under duty to employ, for purpose of maintaining causes confided to him, such means only as are consistent with truth, and never to seek to mislead judge or any judicial officer by artifice or false statement of fact or law. Griffis v. S.S. Kresge Co. (App. 2 Dist. 1984) 197 Cal.Rptr. 771, 150 Cal.App.3d 491.

Attorney's duty is to employ, for purpose of maintaining causes confided to him, only such means as are consistent with the truth. Scofield v. State Bar of Cal. (1965) 43 Cal.Rptr. 825, 62 Cal.2d 624, 401 P.2d 217.

To combine special damages arising from two separate accidents in separate claims against each defendant is the employment of untruthful means on behalf of clients, contrary to an attorney's duty. Scofield v. State Bar of Cal. (1965) 43 Cal.Rptr. 825, 62 Cal.2d 624, 401 P.2d 217.

Attorney's conduct in advising and procuring execution of fictitious chattel mortgage by client to attorney for alleged purpose of precluding client's wife from levying upon mortgaged chattel was within inhibition of statute prescribing attorney's duties. Galbraith v. State Bar of Cal. (1933) 218 Cal. 329, 23 P.2d 291.

11. — — False or misleading evidence, truthful means

An attorney's presentation to court of statement of fact which is known to be false and which tends to mislead court violates this section, whether or not attorney is successful in misleading court, and intent to secure determination based on false statement is presumed. Vickers v. State Bar of Cal. (1948) 196 P.2d 10, 32 Cal.2d 247; Pickering v. State Bar of California (1944) 148 P.2d 1, 24 Cal.2d 141.

Attorney's honesty in dealing with courts is of paramount importance, and misleading judge is, regardless of motives, a serious offense. Williams v. Superior Court (People) (App. 2 Dist. 1996) 53 Cal.Rptr.2d 832, 46 Cal.App.4th 320, rehearing denied, review denied.

It is intentionally misleading for attorney to tell State Bar hearing panel that he is still willing to work on a case which he knows has been dismissed and to answer with a simple "no" in response to a question as to whether a court date has been assigned in a particular matter when he knows that the case has been dismissed. Franklin v. State Bar of California (1986) 224 Cal.Rptr. 738, 41 Cal.3d 700, 715 P.2d 699.

Attorney who, in verified answer to malpractice complaint, knowingly makes affirmative misrepresentation to court is presumed to have intended to secure favorable determination based on his pleading and is culpable of violating this section. Davis v. State Bar of California (1983) 188 Cal.Rptr. 441, 33 Cal.3d 231, 655 P.2d 1276.

Attorney has unqualified duty to refrain from acts which mislead court; representation to court of facts known to be false is presumed intentional and is violation of attorney's duties as officer of the court. Jackson v. State Bar (1979) 153 Cal.Rptr. 24, 23 Cal.3d 509, 591 P.2d 47.

Once attorney takes witness stand in suit and is sworn, it is incumbent upon him as a witness, and in particular as a member of the state bar, to testify in complete candor and never seek to mislead court, and even if he has not been sworn he will still be held to the same high standards of honesty and candor in his statements to the court. Mosesian v. State Bar of Cal. (1972) 103 Cal.Rptr. 915, 8 Cal.3d 60, 500 P.2d 1115.

Knowingly giving false testimony of material factual issue is serious breach of basic standards of honesty as well as violation of attorney's oath of office and his duties as an attorney. Barreiro v. State Bar of Cal. (1970) 88 Cal.Rptr. 192, 2 Cal.3d 912, 471 P.2d 992.

Testimony given by an attorney before a disciplinary committee is given under oath or affirmation that he will speak truthfully and falsely testifying in such proceeding is not only perjury but is violation of duty of honestly and integrity imposed upon him as attorney at law. Barreiro v. State Bar of Cal. (1970) 88 Cal.Rptr. 192, 2 Cal.3d 912, 471 P.2d 992.

Attorney, who not only failed to disclose transaction wherein he purchased property of estate he was representing, but filed documents leading probate court to believe that property remained as an asset of estate, misled probate judge in violation of this section. Eschwig v. State Bar (1969) 81 Cal.Rptr. 352, 1 Cal.3d 8, 459 P.2d 904.

Misrepresentation of a fact to court for purpose of obtaining continuance constituted "contempt." Vaughn v. Municipal Court of Los Angeles Judicial Dist. (App. 2 Dist. 1967) 60 Cal.Rptr. 575, 252 Cal.App.2d 348, certiorari denied 89 S.Ct. 125, 393 U.S. 856, 21 L.Ed.2d 126.

Counsel may not knowingly allow witness to testify falsely, whether he be criminal defendant or otherwise. People v. Pike (1962) 22 Cal.Rptr. 664, 58 Cal.2d 70, 372 P.2d 656, certiorari denied 83 S.Ct. 324, 371 U.S. 941, 9 L.Ed.2d 277.

12. — — Disclosure duties, truthful means

Where attorney who had agreed with client that certain amount would be fee for probating estate thereafter informed client by letter that because of greater value of estate than was originally represented, and unanticipated services, he would claim the statutory fees, attorney was entitled to assume that when client signed petition for fees and distribution she had agreed to his proposed modification of original contract, and attorney was not guilty of an attempt to mislead probate court by failing to inform it of the original contract. Coviello v. State Bar (1953) 41 Cal.2d 273, 259 P.2d 7.

If attorney believed that woman whom he represented in her divorce action perpetrated fraud on court by false statements in her affidavit, in preparation of which attorney aided, for order to show cause why husband should not pay alimony, attorney's fees, etc., it was attorney's duty to divulge such facts to court. Hinds v. State Bar of Cal. (1941) 19 Cal.2d 87, 119 P.2d 134.

Under C.C.P. § 282 (repealed; see, now, this section), providing that an attorney shall employ only such means in maintaining an action as are consistent with truth, it was the duty of an attorney, who had based an argument on a clerical error in the record, to admit the error as soon as discovered. Grand Grove of United Ancient Order of Druids of Cal. v. Garibaldi Grove, No. 71, United Ancient Order of Druids (1900) 130 Cal. 116, 62 P. 486, 80 Am.St.Rep. 80.

13. Just or meritorious proceedings

Breach of duty to maintain only such actions as appear legal and just and not to continue action from any corrupt motive of passion or interest, by filing complaint for fraud, seeking $14,000 in punitive damages, to address a $45 billing dispute warrants suspension from practice of law for one year, stayed during two years of supervised probation, on conditions including 30 days' actual suspension and restitution in amount of attorney fees and expenses reasonably incurred by opposing party. Sorensen v. State Bar of California (1991) 277 Cal.Rptr. 858, 52 Cal.3d 1036, 804 P.2d 44.

Sanction for maintaining action that does not appear to be legal or just or for continuing proceeding from corrupt motive of passion or interest must reflect: harm to the other party; assurance to the public and to the bar that such conduct will not be tolerated; and lack of insight and remorse. Sorensen v. State Bar of California (1991) 277 Cal.Rptr. 858, 52 Cal.3d 1036, 804 P.2d 44.

An attorney has duty to file what he believes to be meritorious cause of action. Silver v. Shemanski (App. 1 Dist. 1949) 89 Cal.App.2d 520, 201 P.2d 418.

Counsel may urge an untenable legal proposition in good faith, even though he may not expect to be successful, if he does not resort to deceit or willful obstruction of orderly processes. Gallagher v. Municipal Court of City of Los Angeles (1948) 31 Cal.2d 784, 192 P.2d 905.

An attorney may assert what he believes correct in a forthright manner, if acting in due course of judicial proceedings. Gallagher v. Municipal Court of City of Los Angeles (1948) 31 Cal.2d 784, 192 P.2d 905.

14. Confidential relations — In general

Fiduciary nature of attorney's relationship with client requires that attorney respect his or her client's confidences. Zador Corp., N.V. v. Kwan (App. 6 Dist. 1995) 37 Cal.Rptr.2d 754, 31 Cal.App.4th 1285, rehearing denied.

Under substantial relationship test, if there is substantial relationship between pending suit and prior representation, then disclosure of client confidences is presumed, and attorney disqualification is justified for having adverse interest to former client. Zador Corp., N.V. v. Kwan (App. 6 Dist. 1995) 37 Cal.Rptr.2d 754, 31 Cal.App.4th 1285, rehearing denied.

Attorney's duty to preserve secrets of his client at every peril to himself is owed both present and former clients and only client can release attorney from that obligation. Commercial Standard Title Co., Inc. v. Superior Court of San Diego County (App. 4 Dist. 1979) 155 Cal.Rptr. 393, 92 Cal.App.3d 934.

In applying the statutory provision that attorney must maintain inviolate the confidence, and at every peril to himself to preserve the secrets, of client, it does not matter that intention and motives of attorney are honest. Earl Scheib, Inc. v. Superior Court for Los Angeles County (App. 2 Dist. 1967) 61 Cal.Rptr. 386, 253 Cal.App.2d 703.

Relation of attorney and client is one of the highest confidence, and, as to professional information gained while this relation exists, attorney's lips are forever sealed, notwithstanding his subsequent discharge by his client and notwithstanding the lack of any justification for such action, and, therefore attorney must thereafter refrain from divulging client's secrets or confidences and from acting for others in any matters where such secrets or confidences or knowledge of client's affairs acquired in course of earlier employment can be used to former client's disadvantage. Stockton Theatres, Inc. v. Palermo (App. 1 Dist. 1953) 121 Cal.App.2d 616, 264 P.2d 74.

Confidential relation of attorney and client is fiduciary relation of very highest character, binding attorney to most conscientious fidelity. Marsh v. State Bar of Cal. (1930) 210 Cal. 303, 291 P. 583.

The phrase "maintain inviolate the confidence," as contained in C.C.P. § 282 (repealed; see, now, this section), was not confined merely to noncommunication of facts learned in the course of professional employment. In re Soale (App. 1916) 31 Cal.App. 144, 159 P. 1065.

15. — — Acting for adverse parties, confidential relations

Both this section making it the duty of attorney at every peril to himself to preserve secrets of his client and state bar rule 4-101 [see, now, Rule 3-310] prohibiting attorney from accepting employment adverse to client or former client involving use of latter's confidential information are aimed at protecting confidential relationship between attorney and client. Jeffry v. Pounds (App. 3 Dist. 1977) 136 Cal.Rptr. 373, 67 Cal.App.3d 6.

Rules of Professional Conduct, Rule 4-101 [see, now, Rule 3-310] that a member of state bar shall not accept employment adverse to client or former client without consent of client or former client relating to a matter in reference to which he has obtained confidential information implements duty of attorney under this section to maintain inviolate the confidence and to preserve secrets of his client. In the Matter of Charles Willie L. (App. 2 Dist. 1976) 132 Cal.Rptr. 840, 63 Cal.App.3d 760.

15.5. — — Former employer, confidential relations

Attorney who unsuccessfully pursues retaliatory discharge suit, and in doing so discloses privileged client confidences, may be subject to state bar disciplinary proceedings. General Dynamics Corp. v. Superior Court (Rose) (1994) 32 Cal.Rptr.2d 1, 7 Cal.4th 1164, 876 P.2d 487.

Attorney who hires former employee of opposing counsel who possesses confidential attorney-client information must obtain informed written consent of former employer of employee, to dispel any basis for disqualification; failing that, hiring attorney is subject to disqualification unless attorney can rebut presumption that confidential attorney-client information has been used or disclosed in new employment. In re Complex Asbestos Litigation (App. 1 Dist. 1991) 283 Cal.Rptr. 732, 232 Cal.App.3d 572, review denied.

Attorney will be disqualified from representing client against former client when there is substantial relationship between two representations; when such substantial relationship exists, it is presumed that attorney possesses confidential information of former client material to present representation. In re Complex Asbestos Litigation (App. 1 Dist. 1991) 283 Cal.Rptr. 732, 232 Cal.App.3d 572, review denied.

If disclosure of opposing party's attorney-client confidences is made by attorney's own client, disqualification of attorney is neither justified nor effective remedy; party cannot "improperly" disclose information to its own counsel in prosecution of its own lawsuit; even if counsel were disqualified, party would be free to give new counsel information, leaving opposing party in same situation. In re Complex Asbestos Litigation (App. 1 Dist. 1991) 283 Cal.Rptr. 732, 232 Cal.App.3d 572, review denied.

Requirements must be imposed on attorneys who hire opposing counsel's employees to ensure that attorney-client confidences held by opposing counsel's former employees are protected. In re Complex Asbestos Litigation (App. 1 Dist. 1991) 283 Cal.Rptr. 732, 232 Cal.App.3d 572, review denied.

There is no broad duty owed by attorney to opposing party to maintain that party's confidences in absence of prior attorney-client relationship; attorneys owe no duty of care to adversaries in litigation or to those with whom their clients deal at arm's length. In re Complex Asbestos Litigation (App. 1 Dist. 1991) 283 Cal.Rptr. 732, 232 Cal.App.3d 572, review denied.

16. Fidelity to client

Fiduciary nature of attorney's relationship with client impresses upon attorney duty of loyalty to his or her clients. Zador Corp., N.V. v. Kwan (App. 6 Dist. 1995) 37 Cal.Rptr.2d 754, 31 Cal.App.4th 1285, rehearing denied.

Because of fiduciary relationship between attorney and client, it is improper for attorney to assume position which is inconsistent with interest of present or former clients; in such circumstances, present or former client may move trial court to disqualify attorney with adverse interest. Zador Corp., N.V. v. Kwan (App. 6 Dist. 1995) 37 Cal.Rptr.2d 754, 31 Cal.App.4th 1285, rehearing denied.

Abandonment of incarcerated client is itself serious matter warranting substantial discipline. Borr‚ v. State Bar of California (1991) 277 Cal.Rptr. 864, 52 Cal.3d 1047, 804 P.2d 50.

Attorney's failure to pay amounts received from judgment debtor to his client, and acquiring interest adverse to client without allowing client to seek independent legal advice, do not amount to willful violation of duty to support Constitution and laws of the United States, nor violation of § 6103, as § 6103 imposes no independent duties. Sugarman v. State Bar of California (1990) 274 Cal.Rptr. 246, 51 Cal.3d 609, 798 P.2d 843.

In fulfillment of his duty of undivided loyalty to client, successor attorney must view client's situation as of moment when he is engaged; hence, public policy requires that he not be subjected to any possible conflict of interest which may deter him from determining best interest of client by possibility that he may be held liable for his acts by his predecessor. Pollack v. Lytle (App. 2 Dist. 1981) 175 Cal.Rptr. 81, 120 Cal.App.3d 931.

An attorney appointed by insurer to defend insured owes insured the same obligations of good faith and fidelity as if insured had retained the attorney personally. Lysick v. Walcom (App. 1 Dist. 1967) 62 Cal.Rptr. 640, rehearing granted, vacated 65 Cal.Rptr. 406, 258 Cal.App.2d 136.

It is a violation of duty of fidelity to client to assume position adverse or antagonistic to him without his free and intelligent consent after full knowledge of facts and circumstances. People v. Davis (1957) 48 Cal.2d 241, 309 P.2d 1.

16.5. Misrepresentation to client

Attorney's misrepresentations regarding deed of trust taken to secure payment of promissory note constitute dishonesty committed during practice and thus moral turpitude. Read v. State Bar of California (1991) 279 Cal.Rptr. 818, 53 Cal.3d 394, 53 Cal.3d 1009A, 807 P.2d 1047, modified on denial of rehearing.

17. Fiduciary duties

California rule requiring disqualification of attorney if attorney's former fiduciary duties included matters that have substantial relationship to the present representation is designed in part to protect ›5"secrets,›5" which include information gained in the prior relationship that the attorney has been requested to hold inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the party to whom the fiduciary duty was owing. In re Mortgage & Realty Trust, Bkrtcy.C.D.Cal.1996, 195 B.R. 740.

Effectively withdrawing from representation of clients without returning fees advanced and moving office without notifying client is a breach of fiduciary duty and violation of disciplinary rules. Read v. State Bar of California (1991) 279 Cal.Rptr. 818, 53 Cal.3d 394, 53 Cal.3d 1009A, 807 P.2d 1047, modified on denial of rehearing.

Attempt to sell client's note and deed of trust taken as security, without accounting to client for any fees or costs assertedly owed, is a breach of attorney's fiduciary duty. Read v. State Bar of California (1991) 279 Cal.Rptr. 818, 53 Cal.3d 394, 53 Cal.3d 1009A, 807 P.2d 1047, modified on denial of rehearing.

Selling pledged stock without notice and in violation of agreement for pledging stock as security for payment of attorney fees and litigation expenses violates oath and duties as attorney. Hartford v. State Bar of California (1990) 270 Cal.Rptr. 12, 50 Cal.3d 1139, 791 P.2d 598.

Fiduciary relationship between attorney and client is of very highest character and, even though terminated, forbids any act which will injure former client in matters involving such former representation or use against former client of any information acquired during such relationship. Yorn v. Superior Court for City and County of San Francisco (App. 1 Dist. 1979) 153 Cal.Rptr. 295, 90 Cal.App.3d 669.

If plaintiff's attorney as alleged had obtained a judgment against plaintiff for a debt and assigned judgment to agent for collection and agent caused execution to issue, attorney had duty to inform plaintiff of execution sale in order to enable plaintiff to bid at sale or to redeem property within one year and failure to give such information was a breach of a fiduciary relationship, and neither attorney nor his agent for collection could take advantage of the breach and deprive the plaintiff of his property. Lucas v. Sweet (1956) 47 Cal.2d 20, 300 P.2d 828.

An attorney, investing his client's money in practically worthless second trust deed, which was in default, without informing client of nature of investment or principal's waiver of principal payments by debtor, representing to client that money was safe and that he would make second trust deed a first trust deed when client learned of investment, purchasing first trust deed for another client, giving original client valueless title to mortgaged property, having first trust deed foreclosed, and representing both clients, whose interests were conflicting, was guilty of breach of trust entitling original client to recover money. Kornbau v. Evans (App. 1 Dist. 1944) 66 Cal.App.2d 677, 152 P.2d 651.

18. Records

Failure to keep proper books of account, vouchers, receipts and checks is breach of attorney's duty to his clients. Weir v. State Bar (1979) 152 Cal.Rptr. 921, 23 Cal.3d 564, 591 P.2d 19.

The purpose of keeping proper books of account, vouchers, receipts, and checks is to be prepared to make proof of the honesty and fair dealing of attorneys when their actions are called in question, either in litigation with clients or in disciplinary proceedings, and failure to keep proper books is in itself a suspicious circumstance. Clark v. State Bar (1952) 39 Cal.2d 161, 246 P.2d 1.

19. Negligence

Gross carelessness and negligence constitute violation of oath of attorney to discharge faithfully duties to best of his knowledge and ability and involve moral turpitude, in that they are a breach of fiduciary relation which binds him to most conscientious fidelity to clients' interests. Simmons v. State Bar of Cal. (1970) 87 Cal.Rptr. 368, 470 P.2d 352, 2 Cal.3d 719; Stephens v. State Bar of California (1942) 122 P.2d 549, 19 Cal.2d 580; Waterman v. State Bar of California (1937) 63 P.2d 1133, 8 Cal.2d 17.

Gross carelessness and negligence constitute violation of attorney's oath faithfully to discharge his duties and involve moral turpitude. Jackson v. State Bar (1979) 153 Cal.Rptr. 24, 23 Cal.3d 509, 591 P.2d 47.

Even if attorney's misconduct is not willful and dishonest, gross carelessness and negligence constitute violation of oath of attorney to faithfully discharge his duties to the best of his knowledge and ability, and involve moral turpitude. Doyle v. State Bar (1976) 126 Cal.Rptr. 801, 15 Cal.3d 973, 544 P.2d 937.

Even if pattern of nonperformance of fiduciary duty owed clients is result of negligence rather than willful behavior, such deceit of the clients, including willful representations of completed performance when none is actually completed, is reprehensible. Alkow v. State Bar of Cal. (1971) 92 Cal.Rptr. 278, 3 Cal.3d 924, 479 P.2d 638.

19.5. Competence

Under California law, law firm is liable for legal malpractice when it breaches its duty to exercise same skill, prudence and diligence possessed by other members of bar. Mutuelles Unies v. Kroll & Linstrom, C.A.9 (Cal.)1992, 957 F.2d 707.

Under California's "judgment immunity rule," attorney is immune from liability for legal advice only if law was unsettled at time attorney gave professional advice and advice was based on exercise of informed judgment. Mutuelles Unies v. Kroll & Linstrom, C.A.9 (Cal.)1992, 957 F.2d 707.

Attorney's actions in filing involuntary bankruptcy petitions against partnerships through which investment had been made to stop foreclosure on property and in seeking to renegotiate loan with higher priority than investment and to determine whether limited partners would be willing to personally assume obligation of renegotiated loan did not constitute failure to perform legal services competently, and fee of $5,000 charged did not appear exorbitant for services performed, even though none of the clients' investment was ultimately salvaged. Cannon v. State Bar of California (1990) 275 Cal.Rptr. 433, 51 Cal.3d 1103, 800 P.2d 911.

20. Third party clients

Where provision in insurance policy requires insured to permit insurer's lawyer to defend claims against insurer, attorney represents two clients, insured and insurer, and owes to both a high duty of care imposed by this section and rules governing professional conduct (Civil and Criminal Rules, Vol. 23, Part 2); insofar as insured is concerned, attorney owes him same obligations of good faith and fidelity as if he had retained attorney personally. Houston General Ins. Co. v. Superior Court In and For Alameda County (App. 1 Dist. 1980) 166 Cal.Rptr. 904, 108 Cal.App.3d 958.

Obligation owing to an insured by an attorney selected by an insurer is the same obligation of good faith as that owed by an attorney personally retained by the client and is affected by the scope of his employment, that is, he may be generally employed for all purposes related to the claim or he may be engaged only for court representation. American Mut. Liability Ins. Co. v. Superior Court For Sacramento County (App. 3 Dist. 1974) 113 Cal.Rptr. 561, 38 Cal.App.3d 579.

21. Dereliction of duty

Willful failure to perform legal services for which attorney has been retained constitutes breach of good faith and fiduciary duty owed by attorney to his clients, and warrants disciplinary action. Selznick v. State Bar (1976) 129 Cal.Rptr. 108, 547 P.2d 1388; Lester v. State Bar (1976) 131 Cal.Rptr. 225, 551 P.2d 841, 17 Cal.3d 547; Hulland v. State Bar (1972) 105 Cal.Rptr. 152, 503 P.2d 608, 8 Cal.3d 440.

Failing to keep client informed of status of case, engaging in prolonged inaction in reckless disregard of obligation to perform legal services competently, and misrepresenting facts about status of case and actions to client warrant five-year suspension, with execution of suspension being stayed, and placement on probation for five years subject to conditions including actual suspension for one year, in light of past disciplinary record and failure to cooperate. Conroy v. State Bar of California (1991) 280 Cal.Rptr. 100, 53 Cal.3d 495, 808 P.2d 243.

Failure to perform legal services for client in uncontested marital dissolution proceeding, failure to communicate with client over much of the time, withdrawal of representation without client's consent or court approval, failure to refund unearned fees paid in advance and failure to cooperate in State Bar's investigation of complaint warrant 12-month suspension, stayed, with actual suspension for 30 days and until restitution is made. Bach v. State Bar of California (1991) 278 Cal.Rptr. 371, 52 Cal.3d 1201, 805 P.2d 325.

Abandonment of incarcerated client on appeal from conviction, and fabrication of letter explaining conduct, to show to State Bar investigator, warrants suspension of five years from practice of law, to be stayed, and probation for five years, conditioned upon actual suspension from practice for two years. Borr‚ v. State Bar of California (1991) 277 Cal.Rptr. 864, 52 Cal.3d 1047, 804 P.2d 50.

Attorney's apparent belief that matter in which he has allegedly agreed to represent prisoner is civil, not criminal, does not excuse complete abandonment of prisoner or failure to return unearned fees. Cannon v. State Bar of California (1990) 275 Cal.Rptr. 433, 51 Cal.3d 1103, 800 P.2d 911.

Displaying habitual disregard of clients' interests and failing to cooperate or participate in disciplinary investigations or proceedings warrant two-year suspension. Middleton v. State Bar of California (1990) 273 Cal.Rptr. 321, 51 Cal.3d 548, 796 P.2d 1326.

Delay of an attorney, retained to represent a client in a divorce proceeding, in obtaining a dissolution of marriage as well as a failure to communicate with his client despite persistent efforts by her to speak with him, would justify a finding of willful dereliction in the discharge of his professional duties, even assuming no deliberate intent to ignore the client's needs. Spindell v. State Bar (1975) 118 Cal.Rptr. 480, 13 Cal.3d 253, 530 P.2d 168.

If criminal defendant requests attorney to file notice of appeal, attorney must either file such notice or clearly and immediately inform defendant he will not file such notice and further inform defendant that he can file the notice himself according to procedure detailed by trial judge; if attorney negligently fails to perform this important duty he may be subject to disciplinary action for breach of prefessional duty. In re Benoit (1973) 109 Cal.Rptr. 785, 10 Cal.3d 72, 514 P.2d 97.

It was dereliction of duty for attorney to abandon cause on appeal, and if attorney lost faith in his cause, he should either have retired or dismissed action. Larimer v. Smith (App. 1933) 130 Cal.App. 98, 19 P.2d 825.

22. Withdrawal

Withdrawing from case without consent of client or approval of court and without taking reasonable steps to avoid causing foreseeable prejudice to client violates disciplinary rules. West's Ann.Cal.Bus. & Prof.Code § 6068; Prof.Conduct Rules 2-111(A)(2), 6-101 (Repealed). Read v. State Bar of California (1991) 279 Cal.Rptr. 818, 53 Cal.3d 394, 53 Cal.3d 1009A, 807 P.2d 1047, modified on denial of rehearing.

Even where disagreement between defendant and counsel is over defendant's intent to commit perjury, in absence of evidence that disagreement has resulted in breakdown in attorney-client relationship of such magnitude as to jeopardize defendant's right to effective assistance of counsel, trial court may still deny motion for withdrawal in its discretion. People v. Brown (App. 3 Dist. 1988) 250 Cal.Rptr. 762, 203 Cal.App.3d 1335, review denied.

When faced with criminal defendant who insists on testifying perjuriously, it is appropriate, even necessary, for counsel to present request to withdraw to the court. People v. Brown (App. 3 Dist. 1988) 250 Cal.Rptr. 762, 203 Cal.App.3d 1335, review denied.

When trial judge is presented with motion to withdraw based on criminal defendant's intent to testify perjuriously, court must consider defendant's fundamental right to testify on his or her own behalf even if contrary to advice given by his or her counsel, and defendant's constitutional entitlement to assistance of court-appointed counsel if defendant is unable to employ private counsel. People v. Brown (App. 3 Dist. 1988) 250 Cal.Rptr. 762, 203 Cal.App.3d 1335, review denied.

Where client instructs attorney to pursue an appeal that is frivolous or taken for the purpose of delay, the high ethical and professional standards of a member of the bar and an officer of the court require the attorney to inform client that the attorney's professional responsibility precludes him or her from pursuing such an appeal, and to withdraw from the representation of the client. Cosenza v. Kramer (App. 1 Dist. 1984) 200 Cal.Rptr. 18, 152 Cal.App.3d 1100.

23. Fees

Attorney will be deemed to have received money paid to his law practice at his business office and received by his office manager to represent prisoner, pursuant to established agency principles, for purposes of finding misconduct in form of failure to return unearned fees. Cannon v. State Bar of California (1990) 275 Cal.Rptr. 433, 51 Cal.3d 1103, 800 P.2d 911.

Under a fixed fee contract, an attorney may not take compensation over the fixed fee without client's consent to a renegotiated fee agreement even if the work becomes more onerous than originally anticipated. Grossman v. State Bar of California (1983) 192 Cal.Rptr. 397, 34 Cal.3d 73, 664 P.2d 542.

24. Referral to specialist

Attorney, who was general practitioner, who acknowledged his need for expert assistance in establishing effective Clifford trust for receipt of income generated by patent royalties, and who insisted that he had no opinion of his own as to tax consequences of the purported Clifford trust, could be found to have had a duty to refer his client to specialist or to recommend assistance of specialist, even though legal specialties were not officially recognized at the time. Horne v. Peckham (App. 3 Dist. 1979) 158 Cal.Rptr. 714, 97 Cal.App.3d 404, 207 U.S.P.Q. 527.

25. Bribery

Passing money to hearing examiner who acts favorably on cases of attorney's clients, coupled with actions in other unrelated cases, including failure to prosecute personal injury actions, attempting to obtain release from client whose case is dismissed, settling claim without client's authorization and deducting sums from settlement above those covered by retainer agreement without authorization, is conduct warranting disbarment, notwithstanding previously unblemished disciplinary record. Sands v. State Bar of California (1989) 264 Cal.Rptr. 354, 49 Cal.3d 919, 782 P.2d 595, rehearing denied.

26. Tax returns

Willful failure to file tax return, though not involving moral turpitude, warrants suspension from practice of law for two years, stayed, with 60 days' actual suspension and two years' probation. In re Grimes (1990) 270 Cal.Rptr. 855, 51 Cal.3d 199, 793 P.2d 61, rehearing denied.

27. Admitted misconduct

Where it is admitted that attorney's misconduct violates Rules of Professional Conduct and statute, appropriate discipline does not depend upon whether multiple labels can be attached to the misconduct or whether attorney's violation of the Rules of Professional Conduct is necessarily also a violation of statutory duty to support Constitution and laws of the state. Bates v. State Bar of California (1990) 275 Cal.Rptr. 381, 51 Cal.3d 1056, 800 P.2d 859.

28. Willful disobedience

Defense counsel's failure to comply with Supreme Court's order to file defendant's opening appellate brief by certain date was an act occurring within immediate view and presence of court and constituted direct contempt; attorney was aware of and had ability to comply with order, and her failure to do so was willful. In re Grayson (1997) 64 Cal.Rptr.2d 102, 15 Cal.4th 792, 937 P.2d 645.

Failing to serve a summons and complaint within time limits, resulting in dismissal of client's complaint upon the defendants' motion, failing to deliver a client's file, failing to pay a default judgment, and failing to probate a simple will for three years, is "willful" violation of the rules, and is not excused by inability to afford errors and omissions insurance. King v. State Bar of California (1990) 276 Cal.Rptr. 176, 52 Cal.3d 307, 801 P.2d 419.

Willful neglect of client matters for two separate clients, with serious injury to one client, warrants a four-year suspension from the practice of law, stayed, with actual suspension for three months, in case in which there is no evidence that the attorney has procured errors and omissions insurance following his neglect of the client matters, or has accepted responsibility for his actions. King v. State Bar of California (1990) 276 Cal.Rptr. 176, 52 Cal.3d 307, 801 P.2d 419.

Attorney violates rules prohibiting willful disobedience or violation of court orders in violation of oath or duties as attorney by charging an excessive fee, disobeying orders compelling him to explain or return the fee, and failing to cooperate in a disciplinary investigation. Barnum v. State Bar of California (1990) 276 Cal.Rptr. 147, 52 Cal.3d 104, 801 P.2d 390.

29. Misappropriation

Failing to deposit in trust account funds received from client, commingling client funds with other funds, willfully failing to promptly pay client funds, and willfully misappropriating client funds warrant three-year suspension, stayed, with 120 days actual suspension, where attorney practices for 13 years without discipline, where there is no serious injury to clients or other parties, and where there is lack of convincing evidence of wrongful intent. Kelly v. State Bar of California (1991) 280 Cal.Rptr. 298, 53 Cal.3d 509, 808 P.2d 808.

Pattern of misconduct involving wide range of improper behavior including multiple acts of bad faith, dishonesty, concealment and overreaching, misappropriation of funds, counseling client to perjure herself, misrepresentations to court and withdrawal from representation of numerous clients without informing them or providing for their representation warrants disbarment, despite mitigating circumstances of severe emotional and financial problems. Read v. State Bar of California (1991) 279 Cal.Rptr. 818, 53 Cal.3d 394, 53 Cal.3d 1009A, 807 P.2d 1047, modified on denial of rehearing.

If misappropriation of client funds was caused by serious and inexcusable violations of attorney's duties to oversee client funds entrusted to attorney's care and to keep detailed records and accounts, violation is deemed willful, even in absence of deliberate wrongdoing. Edwards v. State Bar of California (1990) 276 Cal.Rptr. 153, 52 Cal.3d 28, 801 P.2d 396.

Evidence that balance of trust account fell below amount credited to client is sufficient to support finding of willful misappropriation. Edwards v. State Bar of California (1990) 276 Cal.Rptr. 153, 52 Cal.3d 28, 801 P.2d 396.

Willful misappropriation of funds from client trust account warrants three years of probation with one-year suspension from practice of law, rather than longer suspension or disbarment, where attorney engages in no acts of deceit, makes full repayment within three months after misappropriation and before awareness of complaint to state bar, is candid and cooperative throughout proceedings, and voluntarily takes steps to improve management of entrusted funds. Edwards v. State Bar of California (1990) 276 Cal.Rptr. 153, 52 Cal.3d 28, 801 P.2d 396.

Attorney who deliberately takes client's funds, intending to keep them permanently, and answers client's inquiries with lies and evasions, is deserving of more severe discipline than attorney who has acted negligently, without intent to deprive and without actual deception. Edwards v. State Bar of California (1990) 276 Cal.Rptr. 153, 52 Cal.3d 28, 801 P.2d 396.

Disbarment would rarely, if ever, be appropriate discipline for attorney whose only misconduct was single act of negligent misappropriation, unaccompanied by acts of deceit or other aggravating factors. Edwards v. State Bar of California (1990) 276 Cal.Rptr. 153, 52 Cal.3d 28, 801 P.2d 396.

30. Damages

Attorney who retained client's personal property in violation of obligations as attorney could properly be required to pay interest at rate of 10% until personal property or its value was returned. Martin v. State Bar of California (1991) 277 Cal.Rptr. 868, 52 Cal.3d 1055, 804 P.2d 54.

Restitution is appropriate in case of party who has been forced to incur legal fees as result of attorney's violation of proscriptions against counseling or maintaining action which does not appear to be legal or just and encouraging commencement or continuance of action from corrupt motive of passion or interest, and restitution in such context is not improper as a "damage award." Sorensen v. State Bar of California (1991) 277 Cal.Rptr. 858, 52 Cal.3d 1036, 804 P.2d 44.

Restitution in attorney discipline case is not approved as a means of compensating victim of wrongdoing, but may be awarded as a necessary condition of probation designed to effectuate attorney's rehabilitation and to protect the public from similar future misconduct. Sorensen v. State Bar of California (1991) 277 Cal.Rptr. 858, 52 Cal.3d 1036, 804 P.2d 44.

31. Negotiation and settlement

Under California law, lawyer's duty to client includes obligation to attempt to effectuate reasonable settlement of action where general standards of professional care require that most reasonable manner of disposing of action is by settlement. Mutuelles Unies v. Kroll & Linstrom, C.A.9 (Cal.)1992, 957 F.2d 707.

32. Offensive personality

California statute prohibiting attorney from engaging in "offensive personality" was not limited to conduct involving courtroom interactions or conduct adversely affecting administration of justice. U.S. v. Wunsch, C.A.9 (Cal.)1996, 84 F.3d 1110.

California statute prohibiting attorney from engaging in "offensive personality" implicated constitutionally protected conduct, free speech, and could be challenged as facially unconstitutional. U.S. v. Wunsch, C.A.9 (Cal.)1996, 84 F.3d 1110.

California statute prohibiting attorney from engaging in "offensive personality" was unconstitutionally vague; "offensive personality" could refer to any number of behaviors that many attorneys regularly engage in during course of their zealous representation of their clients' interests, and was likely to have effect of chilling some speech that was constitutionally protected. U.S. v. Wunsch, C.A.9 (Cal.)1996, 84 F.3d 1110.

33. Notice to clients

Even absent inadmissible statements, felony information for willful failure to appear was supported by sufficient evidence, including letter mailed to defense counsel notifying him of court date defendant was required to appear for further proceedings on felony drug charges, and defense counsel's ethical obligation to inform client of all material proceedings, and inferences that defendant was contacted and willfully failed to appear. People v. Jimenez (App. 4 Dist. 1995) 45 Cal.Rptr.2d 466, 38 Cal.App.4th 795, modified on denial of rehearing, review denied.

34. Retaliatory discharge

Retaliatory discharge claims of terminated in-house counsel would be limited to those grounded in explicit and unequivocal ethical norms embodied in Rules of Professional Responsibility and statutes, and claims which are maintainable by nonattorney employees under circumstances in which legislature has manifested judgment that principle of professional confidentiality does not apply; ethical prescriptions on which claims could be based include Rules of Professional Conduct and certain provisions of Business and Professions Code, but do not include Model Rules of Professional Conduct or Model Code of Professional Responsibility. General Dynamics Corp. v. Superior Court (Rose) (1994) 32 Cal.Rptr.2d 1, 7 Cal.4th 1164, 876 P.2d 487.