Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
|
Requesting or agreeing to a trial date when the attorney does not intend to commence the trial on that date.
American Bar Association Code of Professional Responsibility, Disciplinary Rule 1-102.
Business and Professions Code sections 6068, 6101, and 6128.
The request for an opinion states that, on many occasions, attorneys ask for and agree to trial dates they know they cannot fulfill, either because they already have other cases set on dates shortly prior to or shortly after the date set or for some other reason, making it impossible for them to fulfill their commitments to the courts.
The key words in the request are the words "intend" and "know." If the attorney does not intend to try the cause on the specific date he requests, or agrees to, or knows that he cannot meet his commitment to the court and opposing counsel, his conduct involves deceit and misrepresentation. Such conduct is not only unethical, but constitutes a misdemeanor for which the attorney may be suspended or disbarred.
Section 6128, subdivision (a), of the Business and Professions Code provides that every attorney is guilty of a misdemeanor who is guilty of any deceit with intent to deceive the court or any party.
American Bar Association Code of Professional Responsibility, under canon 1, states:
"[Disciplinary Rule] 1-102 Misconduct.
"A. A lawyer shall not:
. . .
"(4) Engage in conduct involving ... deceit, or misrepresentation.
"(5) Engage in conduct that is prejudicial to the administration of justice."
Canon 8 of the American Bar Association Code of Professional Responsibility admonishes that a lawyer should assist in improving the legal system. Ethical Consideration 8-5 states that deceptive conduct by a participant in a proceeding before a tribunal is inconsistent with fair administration of justice and should never be participated in or condoned by lawyers.
Section 6068 of the Business and Professions Code provides that it is the duty of the attorney:
"(d)To employ, for the purpose of maintaining the cause confided to him such 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."
Section 6101 of the Business and Professions Code provides that the commission of any act involving moral turpitude, whether the act is committed in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension.
In Grove v. State Bar (1965) 63 Cal. 2d 312 [46 Cal. Rptr. 513] the court, citing sections 6068, subdivision (d), and 6106 of the Business and Professions Code, held that an attorney's failure to inform the judge of opposing counsel's request for a continuance constituted misleading "the judge or any judicial officer by an artifice or false statement of fact or law," and constituted an "act involving moral turpitude."
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
| . |