Opinion
2:22-cv-00348-KJM-JDP
09-06-2023
Johnny Kan, Plaintiff, v. Verdera Community Association, et al., Defendants.
ORDER
On July 24, 2023, plaintiff's counsel, Marc Steven Applbaum, filed a motion to withdraw as counsel of record. Mot. to Withdraw, ECF No. 63. In his motion and in other filings before the court, as described in more detail below, counsel describes communications with his client, Mr. Kan, which appear to be covered by Mr. Kan's attorney-client privilege. The court also notes counsel's non-appearance at the September 1, 2023 hearing set for consideration of counsel's motion, Mins. Hr'g, ECF No. 72, as well as allegations brought to the court's attention by Mr. Kan, Letter, ECF No. 73.
First, “[t]he attorney-client privilege protects confidential communications between attorneys and clients that are made for the purpose of obtaining legal advice.” Briggs v. County of Maricopa, No. 18-2684, 2021 WL 1192819, at *6 (D. Ariz. Mar. 30, 2021) (citing Upjohn Co. v. United States, 449 U.S. 383, 389 (1981)). The privilege protects both the client's disclosures and the attorneys “advice in response.” In re Grand Jury Investigation (Corp.), 974 F.2d 1068, 1070 (9th Cir.1992) (cleaned up). The privilege is held by the client and generally only can be waived by the client. Fox v. Cal. Sierra Fin. Servs., 120 F.R.D. 520, 527 (N.D. Cal. 1988). Here, however, counsel has made a public filing on the court's docket that claims Mr. Kan.has made demands of counsel “in diametric opposition to [counsel's] advice.” Mot. to Withdraw at 3. He also asserts that Mr. Kan.is “being interviewed by a psychologist in his criminal case." Id. Additionally, in his opposition to defendant's motion for fees, counsel attempts to excuse his actions by saying plaintiff “demanded that counsel record a lispendens after counsel [] advised him of the risks” and plaintiff “refused to expunge his lispendens after” defendants learned of the lispendens and contacted him. Opp'n at 4-5, ECF No. 65. These statements appear to disclose the content of private communications between counsel and his client related to legal advice. See In re Grand Jury Investigation (Corp.), 974 F.2n 1071 n.2 (reciting the eight-part test to determine whether information is covered by the privilege). Moreover, these disclosures may violate California Rule of Professional Conduct 1.6, which bars lawyers from revealing confidential information unless certain circumstances are met, none of which appears applicable here. See Cal. R. Prof. Conduct 1.6.
Second, counsel did not appear at the court's September 1, 2023, motion hearing regarding his motion to withdraw. Mins. Hr'g. Counsel concedes he only “advised the clerk” of his inability to travel at the eleventh hour, the day before the hearing, Applbaum Decl. ¶ 2, Mot. to Continue, ECF No. 71. He filed an ex parte motion the morning of the hearing, citing only his inability to travel, id., well after this court's seven-day deadline to request a remote appearance for good cause, see Civil Standing Order; E.D. Cal. L.R. 174. Counsel's last-minute efforts fail to convey proper respect for the court.
Judge Kimberly J. Mueller, Civil Standing Order, https://www.caed.uscourts.gov/caednew/index.cfm/judges/all-judges/5020/civil-standing-order.
Third, Mr. Kan.has provided a letter with attachment to the court, saying counsel “has kept approximately $446,000” of plaintiff's funds, lied to plaintiff and charged plaintiff $40,000 in trial fees for a trial that did not take place. Letter at 1. Plaintiff attaches to his communication a letter from a different attorney, reviewing details of counsel's alleged misappropriation of funds and untruthfulness toward his client. Id. at 2-3. If the allegations are true, a question the court does not decide, they would suggest counsel has violated not only the California Rules of Professional Conduct but also state and federal laws. See, e.g., Cal. R. Prof. Conduct 1.15. While counsel has filed a response to the letter, ECF No. 74, that filing preceded the issuance of this order to show cause. The court disregards the response without prejudice to counsel's including its contents in his formal response to this order.
Based on counsel's written disclosures of apparent attorney-client information, nonappearance at hearing and alleged conduct with respect to his client, counsel is ordered to show cause within fourteen days why this court should not suspend or revoke his admission to the Bar of this Court and report his conduct to the State Bar of California. Erickson v. Newmar Corp., 87 F.3d 298, 303 (9th Cir. 1996) (“District judges have an arsenal of sanctions they can impose for unethical behavior. These sanctions include monetary sanctions, contempt, and the disqualification of counsel.”); E.D. Cal. L.R. 180(e) (all members of the Bar of this Court must “comply with the standards of professional conduct required of members of the State Bar of California and contained in the State Bar Act, the Rules of Professional Conduct of the State Bar of California, and court decisions”).
IT IS SO ORDERED.