Attorney Ethics and the California Public Records Act

The Requester’s Attorney
DUTY OF ZEALOUS REPRESENTATION (California Rules of Professional Conduct use the term “diligent” instead of “zealous”) Issue: Communication with agency officials and employees without their counsel’s consent Rule of Professional Conduct 2-100 Communication with a Represented Party
(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer. ***** (C) This rule shall not prohibit: (1) Communications with a public officer, board, committee, or body

Question: Must the requester’s attorney address her request to the agency’s counsel only? Does it make a difference that access to the agency’s information is a statutory and constitutional right of any person? Does it make a difference if the record is sought to support litigation?
In U.S. v. Sierra Pacific Industries (E.D. Cal. 2010) 2010 WL 4778051, the question before the District Court was whether counsel for a corporation in an action brought by the government alleging corporate responsibility for a forest fire violated Rule 2-100 when counsel, while attending a Forest Service sponsored field trip to a fuel reduction project site that was open to the public, questioned Forest Service employees about fuel breaks, fire severity, and the contract provisions the Forest Service requires for fire prevention in timber sale projects without disclosing to the employees that he was seeking the information for use in the pending litigation and that he was representing a party opposing the government in the litigation. The Court concluded that counsel had violated the Rule and its reasoning is instructive. It was undisputed that defense counsel communicated directly with the Forest Service employees, knew they were represented by counsel, and did not have the consent of opposing counsel to question them. (2010 WL 4778051, *5.) Defense counsel claimed, however, that his questioning of the Forest Service employees fell within the exception found in Rule 2-100(C)(1), permitting “[c]ommunications with a public officer. . .,” and within his First Amendment right to petition the government for redress of grievances because he indisputably had the right to attend the publicly open Forest Service excursion. While acknowledging defense counsel’s First Amendment right to attend the tour (id. at *5), the Court found no evidence that defense counsel’s litigation related questioning of the employees, who had no “authority to change a policy or grant some specific request for redress that [counsel] was presenting,” was an exercise of his right to petition the government for redress of grievances. (Id. at *6.) “Rather, the facts show and the court finds that he was attempting to obtain information for use in the litigation that should have been pursued through counsel and through the Federal Rules of Civil Procedure governing discovery.” Defense counsel’s interviews of the Forest Service employees on matters his corporate client considered part of the litigation without notice to, or the consent of, government counsel “strikes at . . . the very policy purpose for the no contact rule.” (Ibid.) In other words, counsel’s motive for making the contact with the represented party was at the heart of why the contact was prohibited by Rule 2-100, that is, he was “attempting to obtain information for use in the litigation” . . . The Court further concluded that, while the ABA Model Rule analog to California Rule 2-100 was not controlling, defense counsel’s ex parte contacts violated that rule as well. “Unconsented questioning of an opposing party’s employees on matters that counsel has reason to believe are at issue in the pending litigation is barred under ABA Rule 4.2 unless the sole purpose of the communication is to exercise a constitutional right of access to officials having the authority to act upon or decide the policy matter being presented. In addition, advance notice to the government’s counsel is required.” (Id. at *7, emphasis added.) Thus, under both the California Rule of

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Professional Conduct and the ABA Model Rule addressing ex parte communication with a represented party, the purpose of the attorney’s ex parte communication is at the heart of the offense.

SDCBA Legal Ethics Opinion 2011-2 (Emphases added) Adopted by the San Diego County Bar Legal Ethics Committee May 24, 2011 ______________________________________________________________________________ _________________________ Issue: Interplay with client’s fee-shifting exposure for “clearly frivolous” litigation Government Code §6259, subd. (d)
The court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. The costs and fees shall be paid by the public agency of which the public official is a member or employee and shall not become a personal liability of the public official. If the court finds that the plaintiff's case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.

Bertoli v. Superior Court (1st Dist: Oral argument not set) Crews v. Superior Court (3d Dist: Oral argument May 21)

Question: When does CPRA litigation become so aggressive as to be “clearly frivolous”?
An appeal taken for an improper motive represents a time-consuming and disruptive use of the judicial process. Similarly, an appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit. However, any definition must be read so as to avoid a serious chilling effect on the assertion of litigants' rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of a fear of reprisals. Justice Kaus stated it well. In reviewing the dangers inherent in any attempt to define frivolous appeals, he said the courts cannot be "blind to the obvious: the borderline between a frivolous appeal and one which simply has no merit is vague indeed.... The difficulty of drawing the line simply points up an essential corollary to the power to dismiss frivolous appeals: that in all but the clearest cases it should not be used." The same may be said about the power to punish attorneys for prosecuting frivolous appeals: the punishment should be used most sparingly to deter only the most egregious conduct. In re Marriage of Flaherty, 31 Cal.3d 637, 650 (1982) (citations omitted)

Question: If one meaning of a “frivolous” CPRA action is one filed “despite the fact that no reasonable attorney could have thought it meritorious,” does a client ordered to pay the government’s attorney fees for filing a frivolous action have cause for an ethics complaint against her attorney? Should the attorney instead or in addition be expected to pay the courtshifted fees?

The Agency’s Attorney
DUTY OF ZEALOUS REPRESENTATION

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Issue: Pre-emptive reactions to requests for access to records Rule of Professional Conduct 3-210 Advising the Violation of Law
A member shall not advise the violation of any law, rule, or ruling of a tribunal unless the member believes in good faith that such law, rule, or ruling is invalid. A member may take appropriate steps in good faith to test the validity of any law, rule, or ruling of a tribunal. Discussion: Rule 3-210 is intended to apply not only to the prospective conduct of a client but also to the interaction between the member and client and to the specific legal service sought by the client from the member. An example of the former is the handling of physical evidence of a crime in the possession of the client and offered to the member. (See People v. Meredith (1981) 29 Cal.3d 682 [175 Cal.Rptr. 612].)

Question: What may the attorney not do to protect the client agency’s desire for secrecy?
Business & Professions Code §6068. It is the duty of an attorney to do all of the following: ***** (d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law. Government Code §6200. Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following: (a) Steal, remove, or secrete. (b) Destroy, mutilate, or deface. (c) Alter or falsify.

For non-officers guilty of the same acts Government Code §6201 sets the penalty at up to a year’s term in prison or jail, or by a maximum $1,000 fine, or both. In addition, Section 6203 might apply to the act of an official denying in writing that a record existed, or maintaining it had been lost or destroyed—contrary to fact; there are no reported cases.
Every officer authorized by law to make or give any certificate or other writing is guilty of a misdemeanor if he makes and delivers as true any certificate or writing containing statements which he knows to be false.

In Loder v. Municipal Court, 17 Cal.3d 859 (1976) the court concluded that a police department could not erase or return to the petitioner the record of his arrest stemming from an altercation with a misbehaving police officer, although the city had opted not to press charges and that court had dismissed the case for lack of prosecution.
On the contrary, such an act appears to be forbidden by Government Code §6200 . . . An arrest record is clearly a document which may properly be kept by a public officer in the discharge of his duties, and hence is within the scope of the statute. (See People v. Pearson (at) 31 . . .) And inasmuch as no showing of specific intent is required by the statute, an officer who knowingly removes or destroys such a document is punishable even though he acts without a criminal purpose.

In People v. Pearson, 11 Cal.App.2d 9 (2d Dist. 1952) the court observed:
The crime charged to Captain Pearson is not that he aided a guilty party to escape, or disclosed evidence he had against those mentioned in his reports or otherwise gave comfort to vice elements under investigation. He was convicted of having, while a deputy sheriff, in violation of section 6200, supra, removed certain papers on file in the

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office of the sheriff of Los Angeles County, a public office. The question of his intent is not involved. The mere doing of an act forbidden by the statute is the sum total of the judgment against him. The papers were not the property of the individual, Carl H. Pearson. Some had been prepared by him for the grand jury to show the work that had been done by the vice squad in running down criminal elements. Some were letters from the sheriff upon reported crimes; some were Pearson's replies to his superior; some were communications from citizens giving evidence of criminal activities; others were in Pearson's own writing he had used while testifying before the grand jury in the spring of 1950. . . . ***** The contention that the papers removed were not public records is a mere quibble. They were kept by the sheriff's office as evidence of what had been done, of what was to be done and proof of activities of those elements against whom the law-enforcing agencies should be on the alert. They were convenient to an expeditious discharge of the duties of the sheriff's office and they were necessary to the enlightenment of the sheriff as to past failures and achievements and to current endeavors. They were not open to public inspection. The sheriff's office would be handicapped in enforcing the laws if at every sunset vicious elements might read all the sheriff's reports of vice activities during the preceding day and all plans for defeating crime in the ensuing night. Such documents are confidential public records and because of public policy are entitled to the protection of the statute. . . A paper written by a public official in the performance of his duties or in recording the efforts of himself and those under his command or written plans of future work is a public record and is properly in the keeping of the office. . .

Id. at 16 (citations omitted). In People v. Sperl, 54 Cal.App.3d 640 (2d Dist. 1976), the court again emphasized that the offense can occur with respect to records not required by law to be created or maintained. The defendant, the Los Angeles County Marshal, was convicted among other things of an offense under Section 6200 in connection with the unauthorized removal from archives of nearly 300 car radio logs documenting the use of official vehicles for certain trips. The court of appeal stated:
Respondent's principal argument on count VII is that the maintenance of radio logs is not required by an ordinance or statute, therefore, because the marshal has control of all records of his office, he had the authority to do with the records as he saw fit. This argument is meritless. A public official has no right to treat official government records of an office, such as the marshal's department, as his own. . . ***** As stated in People v. Shaw, 17 Cal. 2d 778, 811 [112 P.2d 241] and the authorities cited therein, "'In order that an entry or record of the official acts of a public officer shall be a public record, it is not necessary that such record be expressly required by law to be kept, but it is sufficient if it be necessary or convenient to the discharge of his official duty. "Any record required by law to be kept by an officer, or which he keeps as necessary or convenient to the discharge of his official duty, is a public record."

Id. at 663 (citations omitted). Question: What authority permits the wholesale destruction/disintegration of email on a rolling basis, allowing only a few weeks or months retention?

The CPRA Standard
Government Code §6252. As used in this chapter: ***** (e)"Public records" includes any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. "Public records" in the custody of, or maintained by, the Governor's office means any writing prepared on or after January 6. ***** (g)"Writing" means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of

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communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.

Records retention policy for state agencies
Government Code §14740. This chapter shall be known as the "State Records Management Act." Government Code §14741. "Record(s)" means all paper, maps, exhibits, magnetic or paper tapes, photographic films and prints, and other documents produced, received, owned or used by an agency, regardless of media, physical form or characteristics.” An e-mail message is a document produced, received, owned or used by an agency. Whether the e-mail serves to document the organization, functions, policies, decisions, procedures, operations or other activities is the deciding factor as to its status as a record. This is true of any communication, whether electronic or paper. E-mail messages that meet the criteria of the definition of a record must be scheduled and retained for the appropriate time period before disposition. E-mail messages that meet the criteria of the definition of a record may be considered public records and must be available to the public. As with any format, an e-mail message is considered a public record unless it falls under one or more exclusions such as individual rights to privacy. These records must be maintained and made accessible to the public upon request through the appropriate requesting process, i.e., Public Records Act.

-- Department of General Services, “Electronic Records Management Handbook: Electronic Mail” http://www.documents.dgs.ca.gov/osp/recs/erm-s4.pdf Minimum retention periods for local agency records prescribed in statute: Cities—Government Code §34090 Counties—Government Code §26202 School Districts—Education Code §16027 Community College Districts—5CCR6, §59026 Two years Two years Three school years Three college years

DUTY OF CONFIDENTIALITY
Business & Professions Code §6068. It is the duty of an attorney to do all of the following: (a)To support the Constitution and laws of the United States and of this state. ***** (e)(1)To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client. Rule of Professional Conduct 3-100. Confidential Information of a Client (A) A member shall not reveal information protected from disclosure by Business and Professions Code section 6068, subdivision (e)(1) without the informed consent of the client, or as provided in paragraph (B) of this rule.

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(B) A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the member reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. Rule of Professional Conduct 3-600. Organization as Client (A) In representing an organization, a member shall conform his or her representation to the concept that the client is the organization itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement. (B) If a member acting on behalf of an organization knows that an actual or apparent agent of the organization acts or intends or refuses to act in a manner that is or may be a violation of law reasonably imputable to the organization, or in a manner which is likely to result in substantial injury to the organization, the member shall not violate his or her duty of protecting all confidential information as provided in Business and Professions Code section 6068, subdivision (e). Subject to Business and Professions Code section 6068, subdivision (e), the member may take such actions as appear to the member to be in the best lawful interest of the organization. Such actions may include among others: (1) Urging reconsideration of the matter while explaining its likely consequences to the organization; or (2) Referring the matter to the next higher authority in the organization, including, if warranted by the seriousness of the matter, referral to the highest internal authority that can act on behalf of the organization. (C) If, despite the member's actions in accordance with paragraph (B), the highest authority that can act on behalf of the organization insists upon action or a refusal to act that is a violation of law and is likely to result in substantial injury to the organization, the member's response is limited to the member's right, and, where appropriate, duty to resign in accordance with rule 3-700. (D) In dealing with an organization's directors, officers, employees, members, shareholders, or other constituents, a member shall explain the identity of the client for whom the member acts, whenever it is or becomes apparent that the organization's interests are or may become adverse to those of the constituent(s) with whom the member is dealing. The member shall not mislead such a constituent into believing that the constituent may communicate confidential information to the member in a way that will not be used in the organization's interest if that is or becomes adverse to the constituent.

Issue: The government attorney as whistleblower Questions: Who is the client whose secrets are to be protected: the agency or its chief executive? The Ossias/Quackenbush Episode (See State Bar COPRAC Memo) AB 363 etc.: When internal reporting of corruption (“improper governmental activity” is unsuccessful and futile to continue, reporting to outside authorities permitted despite B&P §6068. Two bills vetoed by Govs. Davis, Schwarzenegger; third brief stab dropped in 2006. COPRAC Counterproposal: Amend Rule 3-600 to allow a government agency to designate an internal office or official to receive the concerned attorney’s report of proposed action that would be illegal or harmful to the agency. Question: In preparing a response to a CPRA request for records that would tend to document improper governmental activity if disclosed, and if the records are not clearly and inherently privileged or exempt from disclosure, is the agency attorney deciding the response ethically compelled to assert CPRA’s balancing test (Government Code § 6255) because disclosure of the impropriety would harm the interest of the agency? In other words, if the statutory trigger for permissible disclosure of the client’s secrets recognizes only criminal activity threatening death or serious bodily injury, does the lawyer have a duty to protect the client’s less drastic

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wrongdoing from disclosure by the release of agency records, and does that duty compel a specious 6255 rationale favoring nondisclosure in the public interest? May or indeed must the lawyer “get creative” in justifying nondisclosure based on the notion that the requester can always get a court to reject the justification if it comes to that, and meanwhile one has done one’s best to keep the client’s secrets inviolate?

CPRA Case Law on Exemptions Relevant to Client Secrecy
(See handout, California Privileges and Disclosure Exemptions of Special Interest to Government Attorneys) Attorney-Client Communication Privilege Records otherwise accessible to the public—not exempt from disclosure under any other provision of law—do not become subject to the attorney-client privilege simply by being communicated to the agency’s attorney. Coldwell v. Board of Public Works, 187 Cal. 510 (1921). Correspondingly, “the mere presence of (agency) counsel at a meeting will not turn deliberations regarding the settlement of a tort claim into ‘confidential’ attorney-client communications,” and the minutes of such meetings are not thereby privileged. Register Division of Freedom Newspapers v. County of Orange, 158 Cal.App.3d 893 (4th Dist. 1984). Post-accident liability-focused investigations conducted by city police and recreation officials for use by defense attorneys were subject to the attorney-client privilege for the duration of any litigation exposure. (See codified principle in Government Code §6254, subdivision (b) for records “pertaining to pending litigation to which the public agency is a party, or to claims made pursuant to Division 3.6 (commencing with Section 810), until the pending litigation or claim has been finally adjudicated or otherwise settled.” Also, statements by witnesses were also subject to the official information privilege (Evidence Code §1040) because they were conclusively presumed to have been submitted in confidence even if the witnesses did not request it. Jessup v. Superior Court, 151 Cal.App.2d 102 (1st Dist. 1957) In outside counsel billing statements, “the amount of the fee, the identification of payment by case file name, and the general purpose of the work performed are usually not protected.” Clarke v. American Commerce National Bank, 974 F.2d 127 (9th Cir. 1992). Nor is such information exempt as “pertaining to pending litigation” under Government Code §6254, subd. (b). County of Los Angeles v. Superior Court, No. B239849 (Cal.App. Dist.2 11/16/2012) CPRA Exemption for “Records Pertaining to Pending Litigation” The Section 6254 (b) exemption applies only to documents “specifically prepared for use in litigation.” City of Hemet v. Superior Court (Press-Enterprise Co.), 37 Cal.App.4th 1411 (4th Dist. 1995). It “essentially provides public agencies with the protection of the attorney-client ! (!

privilege, including work product, for a limited period while there is ongoing litigation.” State of California ex rel. Division of Industrial Safety v. Superior Court, 43 Cal.App.3d 778 (1974). The Attorney General has concluded, with respect to subdivision (b), that
• the phrase "records pertaining to pending litigation" refers to records of a public agency which have specifically been prepared for litigation to which the agency is a party; • records generated in the ordinary course of a public agency's business which may be relevant in future litigation to which the agency might be a party are not exempt from disclosure under subdivision (b) of section 6254, either before or after a claim is filed or such litigation commences; • police records which had to be disclosed under subdivision (f) of section 6254 of the CPRA are not exempt from disclosure under subdivision (b) even if they become relevant in pending litigation to which the public agency is a party; and • a claim filed against a public agency under California's Tort Claims Act is not exempt from disclosure under subdivision (b).

71 Ops.Cal.Atty.Gen. 235 (1988). In Poway Unified School District v. Superior Court (Copley Press Inc.), 62 App.4th 1496 (4th Dist. 1998) the held that a claim form submitted by a minor to a public school district under the California Tort Claims Act was not exempt or otherwise precluded from disclosure on a variety of grounds asserted by the school district, including Government Code §6254, subdivision (b). Deposition transcripts from prior litigation held in an agency’s files are not eligible for the 6254 (b) exemption because it sunsets with the closure of the litigation. Register Division of Freedom Newspapers v. County of Orange, 158 Cal.App.3d 893 (4th Dist.1984); City of Los Angeles v. Superior Court (Axelrad), 41 Cal.App.4th 1083 (1996). Another factor supporting disclosure is that deposition transcripts are accessible to the public in any event under Code of Civil Procedure §2025.570. Board of Trustees of California State University v. Superior Court (The Copley Press, Inc.), 132 Cal.App.4th 889 (4th Dist. 2005). The 6254 (b) exemption does not make documents unavailable to a requester who is in litigation with the agency as seeks the information outside the discovery process. Fairley v. Superior Court (City of Long Beach), 66 Cal.App.4th 1414 (2d Dist. 1998). The 6254 (b) exemption applies to litigation-related communications between the government and the adversary party, when sought by persons or entities not party to the litigation, which the parties do not intend to be revealed outside the litigation—but only while the litigation is still pending. At that point even settlement offers and responses become public. Board of Trustees of California State University v. Superior Court (The Copley Press, Inc.), 132 Cal.App.4th 889 (4th Dist. 2005). Work Product Rule The work product rule might, depending on the court’s in camera review, apply to a county jail’s inmate reception center manual, an inmate reception center task force report and inmate tracking logs, if found to have been prepared in anticipation of litigation, at the direction of counsel, and directly manifesting the mental impressions, conclusions, opinions, and legal theories of the attorney assigned to the task force and the attorney who directly participated in the report's preparation. County of Los Angeles v. Superior Court (Axelrad), 82 Cal.App.4th 819 (2d. Dist. ! )!

2000). Official Information Privilege (Evidence Code §1040) “It essentially establishes two different privileges—an absolute privilege if disclosure is forbidden by a federal or state statute (subd. (b)(1)), and a conditional privilege in all other cases pursuant to which privilege attaches when the court determines, in accordance with precise statutory standards, that disclosure is against the public interest (subd. (b)(2)).” Shepherd v. Superior Court, 17 Cal.3d 107, 123 (1976). While citing this privilege through Government Code §6254 (k) in a CPRA case is not legally incorrect, it is superfluous if not a makeweight, since the privilege relies for its applicability on the existence of either a prohibitory secrecy statute (paragraph (b)(1)) that could be cited directly under subdivision (k), or an ad hoc public interest argument (paragraph (b)(2)) that could be made directly under Government Code §6255. Cases that have treated paragraph (b)(2) and Section 6255 as essentially identical exercises in weighing the public interest include State of California ex rel. Division of Industrial Safety v. Superior Court, 43 Cal.App.3d 778, 786 (2d Dist. 1974); American Civil Liberties Union Foundation of Northern California Inc. v. Deukmejian, 32 Cal. 3d 440, footnote 6 (1982); and CBS Inc. v. Block, 42 Cal. 3d 646, 656 (1986).

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