December 2011 | Earn one hour of MCLE Credit in Legal Ethics
Moral turpitude, malpractice and murder
California Joan says goodbye with a whodunnit
©2011. All rights reserved.
Peck
As Cali loped up to the Slyme Building, she was astonished to find the entrance cordoned off with yellow crime scene tape. Swarming on the outside pavement and in the lobby were a sea of Hidden Valley’s finest, uniformed police officers. At the edge of the yellow tape, Cali scanned the blue uniforms trying to catch someone’s attention. Cali spotted her friend, Periwinkle Maison, the ethics detective, already in the lobby, deep in conversation with plainclothes detective. Peri waved at her as the detective approached Cali, gruffly asking, “Are you California Joan?”
As she nodded, he lifted the yellow tape, motioned her in, ordering, “Come with me!” As they walked into the Slyme Building, the detective warmed up, “I’m Lt. Tragg with Homicide. Since Peri’s my cousin, I sometimes call her in on lawyer cases.”
Still confused, Cali stuttered, “Homicide? Lawyer cases?”
Detective Maison answered in a low, flat voice, “Sylvie Slyme has been murdered. We saw your name in her appointment book. Peri pointed you out and I would like to ask you a few questions.”
After greetings were exchanged in the lobby, Peri and Lt. Tragg escorted Cali up to the penthouse suite to Sylvie’s office, commanding a killer view of Hidden Valley and the surrounding mountains. There, sprawled on the antique Persian rug, in front of her Louis XV antique desk, lay Sylvie’s shapely but bloody figure.
“How did she die?” Cali asked.
“The coroner has not yet arrived and given the official cause of death,” Lt. Tragg replied. “But if it were my guess, I’d say it was death by thousands of paper cuts.”
Cali and Peri grimaced while shivers ran through their bodies. Lt. Tragg asked Cali, “What were you seeing Ms. Slyme about this morning?”
“While I would ordinarily claim attorney-client privilege (Evid. C., §950 et seq.) . . .” Cali began.
Tragg interrupted impatiently, “She’s dead, counselor — there is no privilege. This is a murder investigation, not civil discovery. You need to cooperate.”
Peri put her hand protectively on her cousin’s arm. “Actually, Cuz, the privilege still exists and can only be waived by Slyme’s personal representative, whose identity has yet to be determined.” (Evid.C., §953(c))
“But, I have acquired no privileged information. It is a complete mystery to me. Sylvie set up the meeting and refused to tell me more until she would see me.”
Sylvie’s partner, Cary Cool, came up to Lt. Tragg with a clerk pushing a rolling cart full of files. Earlier, Lt. Tragg had asked Cool if Sylvie had any enemies. Cary then offered to provide a list. Cary now arrived with litigation files brought by former opposing parties or former firm clients that had sued Slyme and her firm. Cary said that the firm would waive any privilege or work product, so that the police could review the files and find Sylvie’s killer.
“This is way beyond me,” said Tragg looking doubtfully at the mountain of files and then hopefully at Peri. Peri and Cali offered to review all the files and pick the most likely candidates for someone angry enough to inflict thousands of paper cuts. Cali worried about what would happen if they could not find a candidate among Sylvie’s litigation adversaries. If the murderer were a current client of Sylvie’s firm, the lawyer’s fiduciary duty of loyalty would probably prevent them from turning in their clients.
Peri and Cali reviewed the files for the next two days and then met Lt. Tragg at the Hidden Valley Police Department headquarters. Lt. Tragg advised them about the medical examiner’s conclusions as to cause of death. Sylvie Slyme, only 41 years of age, in perfect physical condition, had died of a heart attack. There were ligature marks on her wrists and ankles, suggesting that Sylvie had been bound at the hands and feet. The medical examiner hypothesized that due to the sheer terror of receiving thousands of paper cuts, the fright had caused a massive fatal heart attack.
“After looking through all the files, we have come up with a few candidates,” Peri announced.
Cali summarized the first case:
Attorney Ollie Oyler referred nine gas refinery explosion personal injury cases to Sylvie Slyme. Sylvie and Ollie had a 50-50 percent fee-sharing agreement that complied with California’s laws and ethical rules. The agreement included a provision requiring Ollie to pay investigation fees that would be incurred by an investigator (who was a disbarred lawyer).
Sylvie was wildly successful in trying or settling all nine cases; her attorney’s fees were in the millions. Ollie performed many services in the personal injury cases. However, about half way through the progress of the cases, Ollie refused to pay the investigator further. Because of Ollie’s refusal, Sylvie refused to pay any further fees to Ollie and paid the investigator herself.
Ollie sued Sylvie to enforce the fee-sharing agreement for the balance of his share of the fees. Sylvie claimed that Ollie was barred from any further fees because Ollie’s material breach of their agreement discharged her obligations to pay Ollie any more fees. Sylvie also claimed restitution for Ollie’s share of the previously paid fees because Ollie shared them illegally with the disbarred-former-lawyer-investigator.
Based upon the almost identical case of Brown v. Grimes (2011) 192 Cal.App.4th 265, Sylvie prevailed against Ollie; she did not have to share any further fees with Ollie. The court ruled (1) that Ollie’s promise to pay the investigator was a material obligation of the fee-sharing agreement; and (2) Ollie’s material breach of the agreement discharged Sylvie’s obligation to pay anything further. (Brown, pp. 276-280.)
Peri asked, “Did Sylvie get restitution under an ‘unclean hands’ doctrine?”
“No,” Cali answered. “The Court agreed that Ollie’s fee-sharing agreement with the disbarred-lawyer-investigator was improper fee-sharing and a violation of rule 1-320(A), California Rules of Professional Conduct (CRPC). As you know, CRPC 1-320(A) prohibits a lawyer or a law firm from directly or indirectly sharing legal fees with a non-lawyer, except in circumstances that were not present here.” (Id., pp. 282-283.)
“However, the Court ruled that the ‘unclean hands’ doctrine did not warrant restitution. The ‘unclean hands’ doctrine is only available if the improper conduct is in the particular transaction or connected with the subject matter of the litigation that is a defense. While Ollie’s agreement to pay the investigator was related to the Sylvie-Ollie fee sharing agreement, it was too attenuated,” Cali continued. (Id.)
“First, the Ollie-investigator illegal agreement was completely separate from the Sylvie-Ollie fee-sharing agreement. Second, the illegal fee-splitting agreement did not affect the compensation structured under the Sylvie-Ollie fee-sharing agreement. Third, the illegal agreement did not otherwise infect or affect the Sylvie-Ollie agreement. Fourth, there was no prejudice to Sylvie. For these reasons the illegality of the Ollie-investigator agreement did not invalidate or void the Sylvie-Ollie agreement,” Cali said. (Id., pp. 283-284.)
Peri looked perplexed. “How do you square Brown v. Grimes with cases like McIntosh v. Mills (2004) 121 Cal.App.4th 333, which invalidated a fee-sharing agreement between a lawyer and the non-lawyer physician expert witness who the lawyer hired for a case?”
“Good question,” Cali said. “In McIntosh, the Court held that this agreement was unenforceable under the doctrine of illegality of contract because it violated CRPC 1-320(A), since the lawyer could not directly or indirectly share fees with non-lawyers. Recognizing that the Rules of Professional Conduct did not apply to the non-lawyer-physician-expert witness, the Court ruled that the agreement was still unenforceable because (1) the physician was represented by counsel who was subject to both CRPC 1-320 and 1-120 (prohibiting attorneys from assisting in violation of the Rules of Professional Conduct); (2) the physician’s lawyer was equally guilty of unethical conduct; and (3) the physician’s lawyer’s awareness of the illegality of the agreement was imputed to the physician under agency principles.” (Id., pp. 343-346.)
“In contrast with Brown v. Grimes, in which the illegal fee-splitting was not part of the attorney’s fee-sharing agreement, in McIntosh, the only issue was the legality of the lawyer-non-lawyer fee-splitting agreement.”
Cali concluded: “On an interesting note, the Court reminded us that ‘unclean hands’ is a defense to a tort. It is not a cause of action warranting damages or other relief such as restitution of monies already paid. (Id., p. 284.) Therefore, this was a separate reason for denying restitution of the $1.3 million already paid to Ollie.”
Lt. Tragg probed, “So if Ollie got to keep $1.3 million, why is he a suspect?”
Peri piped up, “I’m afraid it was all a pyrrhic victory for Ollie. Not only did he lose the millions in shared fees, the Court ruled that Sylvie was the prevailing party and entitled to her attorney’s fees. The fee-sharing agreement included a provision under Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, providing that Sylvie could obtain attorney’s fees for the Firm’s defense of Sylvie and the Firm. The litigation was bitter, intense and costly. Between his own lawyer’s fees and costs and paying Sylvie’s, he lost it all. The coup de grace was the trial court’s referral of Ollie to the State Bar Office of Chief Trial Counsel for disciplinary investigation of Ollie’s relationship with the disbarred-lawyer-investigator.”
“According to the members of the Slyme Law Firm, Ollie has made violent threats against Sylvie,” Cali said.
Peri picked up a new file. “I have another potential suspect arising out of a probate case.”
Peri recited the back story. Lette Lion and Norm North had been friends since the mid-1960s. In 2001, North suspected his friend had dementia and filed a petition, through counsel, to establish a conservatorship for Ms. Lion in December 2001. In January 2002, Sylvie was appointed as a probate volunteer panel (PVP) attorney to represent Ms. Lion’s interests in the conservatorship proceedings. In due course, Mr. North was appointed co-conservator for Ms. Lion.
From 2005-2007, Mr. North continuously requested that Sylvie prepare an estate plan for Ms. Lion to reflect what he understood to be Ms. Lion’s wishes that part of her estate should go to Mr. North and part to Ms. Lion’s niece. He further requested that Sylvie get court approval for the estate plan after Ms. Lion executed the documents.
Through a series of mishaps, Sylvie never obtained court approval of Ms. Lion’s estate plan before she died in August 2007. Since Ms. Lion died intestate, her niece, the children of her former husband and her adopted siblings then squabbled over entitlement to her estate. When Mr. North got nothing, he sued Sylvie for legal malpractice, alleging that Sylvie’s failure to timely perform her duties had deprived North of his share of the Lion estate. Ollie represented Mr. North in the legal malpractice action against Sylvie and the Slyme Law Firm.
Sylvie brought a motion for summary judgment claiming that she had no duty to Mr. North, who was not her client and not the beneficiary of any executed estate plan. On the basis of last year’s court of appeal opinion in Hall v. Kalfayan (2010) 190 Cal.App.4th 927, the trial court granted Sylvie’s motion and judgment was entered in her favor.
The court concluded that Mr. North could not maintain a cause of action for legal malpractice against Sylvie even though Sylvie drafted the will but did not have it executed before the testator’s (Ms. Lion’s) death. The Court reasoned that Sylvie owed a duty to her client, Ms. Lion, and owed no duty to Mr. North. Mr. North was not a client and was also not a third party beneficiary of the legal services on behalf of Ms. Lion since he was never named as a beneficiary in any estate planning documents that were approved in the conservatorship proceedings. California law currently does not permit disappointed “potential” beneficiaries to bring a cause of action for legal malpractice against an attorney for failing to be included in an estate plan, especially where there is confusion about the testator’s expression of her wishes. (Hall v. Kalfayan, pp. 937-938.)
“North was furious that Sylvie’s delay cost him the Lion bequest and that his attempts to get his day in court against her were frustrated. After losing the summary judgment, North was irate and told Sylvie outside the courtroom that she should ‘watch out that someone does not take justice into his own hands against you.’ Shortly thereafter, the Slyme Law Firm received anonymous death threats against Sylvie. They thought the voice was North’s,” Peri said.
“Here is our last suspect.” Cali and Peri told Lt. Tragg about Sylvie slinking out of a malicious prosecution action against her.
Kleopatra Katt and Caesar Antoni were lovers who went into the clothing business together in 2003. In 2005, they dissolved their personal and business relationship when Caesar sued Kleopatra for trademark infringement in her post-Caesar business enterprises. In 2006, Caesar’s action was dismissed. In 2008, Kleopatra sued Caesar and Caesar’s lawyers, Sylvie and the Slyme Law Firm, for malicious prosecution.
Sylvie and her firm filed an anti-SLAPP motion (C.C.P. §425.16) claiming that (1) the underlying legal action against Ms. Katt was a protected activity within the meaning of the anti-SLAPP statute and (2) that Ms. Katt had no possibility of prevailing since her malicious prosecution action was not filed within one year of the dismissal of the underlying suit as required.
Consistent with Vagi v. McCloskey (2011) 193 CA4th 874, 880, an almost identical case, the trial court dismissed Ms. Katt’s malicious prosecution action. The trial court held that Sylvie’s actions in prosecuting Caesar’s trademark infringement action was protected activity in seeking judicial redress for Caesar. (Id, p. 879.)
Ms. Katt claimed after the dismissal of the underlying action, she had two years to file her malicious prosecution action under C.C.P. §335.1, a two-year statute for “injury to an individual caused by the wrongful act or neglect of another” which has been applied generally to malicious prosecution actions. (Id., p. 879.)
However, the trial court held that Ms. Katt’s malicious prosecution action alleged that Sylvie’s wrongful conduct arose from the performance of professional services on behalf of Caesar in the underlying action. C.C.P. §340.6 applies to all actions against attorneys, except fraud, for a wrongful action or omission that arises from the performance of professional services. Since principles of statutory construction call for a specific statute to override a more general statute, Ms. Katt’s action had to be filed within one year pursuant to section 340.6. (Id., pp. 879-883.)
“Let me guess,” Lt. Tragg said sardonically, “Ollie was Ms. Katt’s attorney on the losing side of the motion.”
“Right again, my dear cousin,” Peri pattered.
After thanking them profusely, Lt. Tragg and his partner left to interview Ollie Oyler, Norm North and Kleopatra Katt, who became their prime suspects. A few days later, Peri called Cali about the status of the investigation:
“You won’t believe what has happened! My cousin has arrested Ollie, North and Katt for murder. They all did it together like some sort of Murder on the Orient Express! It turns out that giving paper cuts to someone else backfires. Ollie, North and Katt all had lots of paper cuts on their hands.
“Based upon this evidence, Tragg obtained a search warrant for their homes and offices and found their clothes with Sylvie’s blood spattered. They finally admitted to the paper cuts, but claimed Sylvie was still alive after they cut the duct tape from around her wrists and ankles. North and Katt are saying Ollie talked them into it. Tragg thinks they will all take a plea! Murder solved; justice is done. Thanks for your help, Cali. My cousin now owes us both!” Peri exclaimed as she hung up.
For the next few days, Cali tried not to think about poor Sylvie, by focusing upon her practice. After a long afternoon mediation, which resolved the dispute, Cali dragged herself back to the office to do a little paperwork. In her darkened office, she found her partner, Meryl Terpitude, sitting, staring into space, holding a pleading.
“What’s wrong, Meryl?” Cali asked, startled at his disheveled appearance.
“I don’t have much time, Cali,” Meryl said flatly. “I killed her. . . Here’s my confession for you to give the police.”
“Killed WHO, Meryl? I don’t understand.” Cali was confused.
“Sylvie. I murdered Sylvie! She and I have been lovers for months. I am totally and hopelessly in love with her.” Meryl was sobbing.
“A week before the murder, I had given her a 12-carat diamond engagement ring. She refused to marry me and said we should stop seeing each other. I told her I could not live without her and she agreed to keep seeing me.
“On the night she died, I had a date with her for a late dinner. I entered the building with my own key. I found her in her office, alive and in a rage, after Ollie’s vicious but ineffectual attack,” Meryl recounted.
“I tried to put my arms around her, but seeing me enraged her further. She flung my ring at me, said she never wanted to see me again and demanded that I leave. I was prepared for this. I pulled the syringe with an odorless, colorless undetectable Amazonian vegetable poison from my brief case. I plunged it into her flailing arm and she collapsed into my arms, with a poison-induced heart attack. She was a vegan, you know. I laid her gently on the floor and waited to make sure she was dead, wiped my prints from everything and left.” Meryl looked at Cali, with tears in his eyes.
Cali let out her breath slowly, “Meryl, this is unbelievable.”
“Here is my confession,” he said, in a matter-of-fact voice. “If the medical examiner had looked more closely amid all of the paper cuts, he would have found the injection site. That is the only evidence of my crime.”
He rose and smiled wryly, “Murder is the ultimate moral turpitude you know.” (In re Kirschke (1976) 16 Cal.3d 902, 903; Bus.&Prof.C., §6106.)
Meryl strode across her office and onto the middle of Cali’s balcony, a bath towel draped over his forearm, which cradled a worn copy of the Hitchhiker’s Guide to the Galaxy. “Cali,” he called, as if waving goodbye, “It’s been fun sharing my ethics adventures with you. Keep trying to help California lawyers arrive at the right spot in their perpetual rendezvous with ethics. So long, and thanks for all the fish!”
Suddenly, there was a blinding flash of white light and it seemed that Meryl Terpitude had vanished.
Cali blinked. “Meryl?”
• Ellen R. Peck, a former State Bar Court judge, is a sole practitioner in Escondido and a co-author of The Rutter Group California Practice Guide: Professional Responsibility.
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