American Bar Association
General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Winter 1998
© American Bar Association. All rights reserved.

The Ethics of Silence under "Litigation Privilege"

BY MARTIN PASKIND

Martin Paskind is a lawyer in Albuquerque, New Mexico. His practice focuses on the representation of small businesses and their owners.

A lawyer who represents himself, an old saw says, "has a fool for a client." Let's check this out. Irving Kanarek is a longtime lawyer. He represented himself. And just as the old saw predicts, he hasn't done really well so far. There's another old belief, perhaps supported by too little evidence, that we in the legal profession are ethical, honest, and honorable people. Well, maybe. Kanarek may not think so.

Kanarek was a California lawyer who became famous years ago as Charles Manson's defense attorney. Manson was a cult figure whose followers killed an actress named Sharon Tate and several other people. One of his followers took a shot at Gerald Ford, when he was president. Until O.J. Simpson turned up, Manson probably was Los Angeles' biggest homicidal celebrity.

Fleeting Fame

Fame doesn't last. Few people remember Kanarek, although he was well known for his wardrobe and habits during the decade or so following the Manson case. During that time, Kanarek prospered reasonably well. In fact, he had a household staff of two, Jose and Hermalinda Rangel. In January 1989, more than eight years ago, the Rangels sued Kanarek for breach of contract, fraud, and malpractice.

Kanarek represented himself. Then, in November 1989, he wound up in a locked psychiatric ward at Harbor-UCLA Medical Center. There Kanarek remained for a very long time.

Hitting Headlines

Kanarek's hospitalization got lots of press in Los Angeles. Kanarek was the kind of guy that the papers love to write about, and that lawyers love to gossip about. The Rangels and their lawyers, Nancy Kaufman and Edwin Printemps, knew about it, along with the rest of L.A. Kanarek's mental condition didn't slow Kaufman and Printemps down. They went right ahead with the Rangels' case.

Kaufman and Printemps took part in two in-court settlement conferences. They then set an uncontested hearing in August 1990. They didn't say a word to the judge about Kanarek's whereabouts and said nothing about the defendant's state of mind. They didn't ask for a guardian ad litem to look out for Kanarek. Kaufman and Printemps wanted a default judgment that they could present for payment to the Client Security Fund of the California State Bar. Very few readers of L.A. newspapers back in 1990 were unaware of Kanarek's circumstances, but one of the unaware, apparently, was the judge. This supports a theory of mine that judges need not read newspapers because they know everything already. However that may be, the judge ruled in favor of Mr. and Mrs. Rangel and against Kanarek. This fate frequently befalls litigants who don't show up in court.

The Most Unhappy Fella

The Rangels took their judgment to the security fund, which, in turn, sued Kanarek to get its money back. At about this point, Kanarek got out of Harbor-UCLA Medical Center. He was not a happy man. Naturally, he sued everybody in sight. Kanarek went after Kaufman and Printemps for abuse of process, fraud, and intentional infliction of emotional distress.

Kanarek made things as hard as he could for the trial and appellate judges. They said, "The first cause of action alone runs 39 pages, much of it filled with material concerning alleged statements by defendants which the trial court found to be clearly privileged...as statements uttered in a judicial proceeding." Nevertheless, the judges found, buried amid the discarded matter, allegations that the litigation privilege did not protect Kaufman's and Printemps's silence.

The two lawyers did not like that outcome, so they took the case up on petition for writ of mandate. The two defended themselves energetically. They claimed a perfect right to keep their mouths shut about Kanarek's whereabouts.

Privileged Characters

Every state that I know of has a "litigation privilege," under which opposing parties can't sue lawyers for statements made during a lawsuit. Sometimes, as in California, the state's highest court adopts the privilege by rule. Here in New Mexico, the privilege grows out of judicial decisions. The California privilege, said the appellate court, applies to any communication "required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation." The privilege protects statements made in and out of court.

Privilege, said the judges, assures free access to courts, promotes truthful testimony, encourages zealous advocacy, and avoids unending litigation. This is probably a wise comment. If all losing parties sued winners' lawyers, lawsuits would be eternal, no one would want to be a lawyer, and law schools would close their doors.

The California trial judge ruled that the privilege applies to statements, but not to silence. On writ of mandate, the appellate court reversed.

The Sounds of Silence

Appellate judges faced the issue of whether concealment by silence, without accompanying statements, qualifies for immunity under the litigation privilege. "The answer," they said, "lies in the complex nature of silence itself. Silence can signify nothing, or it can communicate a good deal, all depending on context."

Kaufman and Printemps, said the appellate court, given their knowledge, "had a duty to advise the court of [Kanarek's] condition and of the need to appoint a guardian ad litem for him. But the defendants kept the information to themselves, breaching this duty."

"There is," the court continued, "a truth at the core of Kanarek's claims. This is the principle that a plaintiff may not take advantage of a defendant's legal disability to obtain a judgment without a fair adversary hearing. A plaintiff who is aware of a defendant's mental incapacity or some other factor preventing the defendant from participating in a legal proceeding is duty-bound to inform the court of this fact."

This sort of conduct, said the judges, is fraud extrinsic to, or outside, the judgment. Such fraud allows the court to set aside the judgment. "Kanarek, however, seeks something else in this action," said the court. "He seeks to establish defendants' liability in tort for their breach of this duty of disclosure. It is this claim for monetary damages that runs headlong into the litigation privilege."

Acts of Communication

On appeal, the court queried whether "...defendants' alleged act of failing to disclose Kanarek's mental incapacity to the court in the underlying action was a communicative act within the scope of the litigation privilege." The California court found no authority on the point.

Nevertheless, the court found a little guidance. It cited a divorce case in which wife's counsel recommended a psychological consultant to evaluate custody, without revealing a preexisting personal relationship between the lawyer and the shrink. Hubby sued wife's lawyer in tort, and the case was rapidly dismissed.

The litigation privilege extends to clients as well as to counsel. The court cited one case involving concealment of facts and discovery abuse, both of which were found to be within the privilege. It cited another that applied the privilege where a medical malpractice insurer instructed its insured and a second physician to lie during depositions.

Without solid authority, the appellate court looked at the context. Kaufman's and Printemps' "silence in the face of a duty," the judges said, "communicated something substantial. It implicitly conveyed the message that there was nothing to report concerning Kanarek's nonappearance at the settlement conferences and trial." Though the message was false, it was a message nevertheless. The litigation privilege protected it.

Because of all this, the appellate court sent the case down to the trial judge with instructions to dismiss Kanarek's claims against Kaufman and Printemps. Since Kanarek also sued Mr. and Mrs. Rangel, the court dismissed that suit as well. But Kanarek got permission to attack Mr. and Mrs. Rangels' judgment on the ground of fraud.

New Standards of Practice

Judges of California's fourth appellate district countenanced falsity done by silence. Unless the California Supreme Court overturns the ruling, the precedent is ruling case law in LaLa Land. It is easy to argue that the fourth district's lawyers now have a duty to remain silent, and in the process to mislead the court, in matters of this kind. And if they do not do it, clients can sue them for malpractice.

Still, can't Kaufman and Printemps lose their licenses over this sort of behavior? Aren't you supposed to be straight with the court?

The ABA Model Rules, Rule 3.3, command candor toward the tribunal. The rule prohibits specific conduct. Lawyers aren't supposed to make false statements of material facts or law to the court. Still, Kaufman and Printemps didn't make false statements. They said nothing at all.

Splitting Hairs

The rule talks about revealing material facts to a tribunal when necessary to avoid assisting a client's criminal or fraudulent act. The clients, Mr. and Mrs. Rangel, weren't doing anything criminal or fraudulent. The rule's third part says you have to disclose adverse legal authority. If everyone who broke this rule lost a license to practice law, a lot of former lawyers would be out there selling shoes. But this part of the rule had nothing to do with Kanarek's problem.

A fourth part of the rule says you cannot offer false evidence. Kanarek apparently accused Kaufman and Printemps of doing just about everything but that.

The last paragraph of Rule 3.3 requires lawyers in ex parte proceedings to give the tribunal all information that will enable the court to make an informed decision. That sounds good, but was the "trial" on damages ex parte? I don't know the answer to that, but most judges are ready to pull the plug on litigants who don't show up. "This guy," judges think to themselves, "had every chance in the world to defend. Now I'm gonna run him through the Cuisinart."

Maybe Kaufman and Printemps violated Rule 3.3, but it is not obvious to me. Never-theless, perhaps invoking Rule 3.4 will do the trick. That's the one that requires fairness to opposing parties and counsel. Like most of the rules, 3.4 carefully lists its prohibitions. Under Rule 3.4, you can't obstruct access to evidence or alter documents. You are not supposed to falsify evidence, or advise others to do so. Rule 3.4 won't let you break the tribunal's rules or make frivolous discovery requests.

Nor, under 304, can lawyers "allude" during trial to matters unsupported by evidence. With exceptions, you cannot instruct witnesses not to talk to the other side. It doesn't look like Kaufman and Printemps violated Rule 3.4 either.

Suppose, though, that the disciplinary people out in California get activated on this one. I don't see how a state bar disciplinary agency can punish a lawyer for conduct that an appellate court says is privileged.

It gets worse. California's geography dictates that ideas and fashions created in LaLa Land roll back, tsunami-like, over the rest of us. It probably won't be long before lawyers are arguing the holding in Kanarek's case in states all over the country. Before long, we lawyers may have a new standard of conduct. That standard may require us to keep quiet when we know exactly why the defense isn't defending. We can call this the "Shuddup and Be Quiet Rule."

Where's Ol' Irving?

Suppose the trial judge asked Kaufman and Printemps, "Where's ol' Irving? Why isn't he here?" And suppose the two lawyers answered, "Beats us, your honor. Can we go ahead?" That sounds to me like a false statement of material fact, prohibited by Rule 3.3. But wouldn't the litigation privilege protect that statement? And if it is protected, what's left of the ethical provision?

Does this sound like progress to you? It doesn't sound wonderful to me. And it probably does not sound wonderful to Irving Kanarek, either.

Before we leave this battlefield, let's count the bodies. The Rangels, whose claim against Kanarek started this whole snowball downhill, got their judgment and their money. Now, though, the appellate court has approved litigation to set the judgment aside. And the California bar fund no doubt wants to get its money back from someone. Kanarek, though, may soon be out from under his judgment. For their part, the Rangels did nothing wrong against the state bar fund. Can the bar recover against them? Can they then sue their lawyers? Will there be another trial, this time with both parties present? Who'll win it?

Stumbling Evermore

This case teaches a couple of things. Irving Kanarek may or may not have had a fool for a client, but he sure could have used co-counsel in the Rangel case. That's one thing. The case doesn't do much to bolster the idea that we lawyers are ethical, honest, and honorable people. That's another thing.

Despite all that, the appellate judges probably decided the case correctly. We just cannot have losers suing winners' lawyers, as ancient grievances stumble evermore down the corridors of time. That won't work, and if it will not, then the California judges came out in the right place.

Evermore? Well, the case is only eight years old. With trials and appeals, it easily could take another four or five years to adjudicate. It could even take eight or ten years. But good grief. What's the rush?

The case was Kaufman v. The Superior Court of Orange County, No. G020180 on the docket of the Fourth Appellate District, Division Three. The opinion was filed May 27, 1997.

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