Articles are provided regularly by LACBA’s longstanding Professional Responsibility and Ethics Committee

By John W. Amberg
John W. Amberg is a litigation partner with Bryan Cave Leighton Paisner LLP and a member of LACBA’s Professional Responsibility and Ethics Committee.  The views expressed are his own.

In a notorious recent case, a lawyer carelessly bragged about his trial victory, and saw it taken away by the Superior Court.

Enrique Garcia Sanchez died following a botched medical procedure.  His daughters and estate sued the hospital and attending gastroenterologist Dr. Essam Quraishi for medical malpractice, alleging the doctor had pierced his patient’s colon with a feeding tube.  Peritonitis and sepsis resulting from the perforated colon caused Garcia Sanchez’s death, according to the official death certificate.  At trial Dr. Quraishi was represented by attorney Robert L. McKenna III of Kjar, McKenna & Stockalper who blamed the death on other causes and told the jury it shouldn’t believe the coroner’s testimony or the death certificate.  He derided the plaintiffs’ case as “extortion” and a product of the “personal injury industrial complex”. The jury returned a unanimous defense verdict in only 26 minutes.[1]  Elated by his victory, McKenna made an exultant speech at his law firm’s offices that was recorded and posted to social media.   

In his recorded remarks, McKenna bragged the case involved “a guy that was probably negligently killed, but we kind of made it look like other people did it.”  He chortled: “And we actually had a death certificate that said he died the very way the plaintiff said he died and we had to say, ‘No, you really shouldn’t believe what that death certificate says, or the coroner from the Orange County coroner’s office.’”[2]  In the celebratory video, his partner bounded forward to ring a bell mounted on the wall.  It was an ominous symbol because Lloyds of London traditionally rings a bell to signal a ship lost at sea.  Following widespread public revulsion to the video, Orange County Superior Court Judge James Crandall granted the plaintiffs’ motion for new trial.  Instead of a lost ship, the ringing bell heralded a lost case.  McKenna was sunk, and Dr. Quraishi was represented at the hearing by new counsel.[3]

As quoted in the Los Angeles Times, the plaintiffs’ lawyer said, “In my opinion, this is one of the reasons people tend to distrust and even hate lawyers.  They will say one thing to the jury or in public, and then say the opposite in private.”[4]

McKenna’s post-trial remarks were foolish and even tasteless, for which he apologized.  But was the lawyer’s conduct unethical?

Since 1983, zealous advocacy has been relegated to a comment to ABA Model Rule of Professional Conduct 1.3 (“A lawyer must also act . . . with zeal in advocacy on the client’s behalf”), and California omitted this comment altogether when it adopted the Model Rules in 2018.  No California statute or rule expressly imposes a duty of zealous advocacy.  Nevertheless, it is generally recognized that a lawyer has a duty to zealously advocate for his or her client. This does not mean a lawyer must personally believe that the client is innocent of all wrongdoing.  An ability to identify with his client and to communicate persuasively on the client’s behalf are hallmarks of a successful advocate, but the lawyer’s personal beliefs are ultimately irrelevant.  To avoid confusing the jury regarding the proper role of the advocate, Rule of Professional Conduct 3.7 (Lawyer as Witness) prohibits a trial lawyer from also testifying as a witness except in limited circumstances, and CACI No. 106 (Evidence) instructs the jury that what attorneys say during the trial is not evidence: “. . . In their opening statements and closing arguments, the lawyers will talk to you about the law and the evidence.  What the lawyers say may help you understand the law and evidence but their statements and arguments are not evidence.” For the same reason, it has long been the rule that a lawyer may not personally vouch for the facts of the case or the client.  Rule of Professional Conduct 3.4(g) (Fairness to Opposing Party and Counsel) states: “A lawyer shall not: . . . in trial, assert personal knowledge of fact in issue . . .  .”  The lawyer is not a witness and his personal views are not on trial. 

This is not unethical.  Indeed, if a lawyer were required to personally endorse the beliefs of the client, or to accept as true everything the client told him, there would be far fewer represented defendants.  Often, it is the difficult client and the seemingly hopeless case that require the best advocacy, and effective advocacy in the hard case requires analytical detachment and an objective view, not blind belief.  A client needs a legal advocate, not an apostle.  For our adversarial system of justice to work, the contending parties must be represented by vigorous advocates because experience tells us that this is the best way for the truth to emerge.  Of course, the legal system is known to err, and judges and juries are fallible, but our system depends on the ability of skilled lawyers to make the best arguments supported by the law and evidence. Vigorous advocacy is not the same as vouching. 

There are limits to a lawyer’s zealous advocacy. As courts recognize, “[A]n attorney’s ethical duty to advance the interests of [its] client is limited by an equally solemn duty to comply with the law and standards of professional conduct.” Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 600 (2010) (changes in original); accord, People v. McKenzie, 34 Cal. 3d 616, 634 (1983); Hawk v. Superior Court, 42 Cal. App. 3d 108, 126 (1974) (“The duty of a lawyer, both to his client and to the legal system, is to represent his client zealously within the bounds of the law . . . .”). Central to those professional standards is the proscription against lying to a court.  The State Bar Act, Business and Professions Code section 6000, et seq., defines the duties of attorneys in Section 6068 which provides that “It is the duty of an attorney to do all of the following: . . . (c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just . . . ,” and “(d) To employ, for the purposes 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.”  Rule of Professional Conduct 3.3(a) provides that a lawyer shall not knowingly make a false statement of fact or law to a tribunal, or fail to correct a false statement previously made. “Tribunal” is defined in Rule 1.0.1(m) as a court, arbitrator, administrative law judge, administrative body acting in an adjudicative capacity and authorized to make a binding decision, and a special master whose decision or recommendation is binding.  Interestingly, unlike former rule of professional conduct 5-200(B) which prohibited misleading “the judge, judicial officer or jury by an artifice or false statement of fact or law,” Rule 3.3 and Rule 1.0.1(m) do not specifically mention a jury. 

There are also procedural checks built into the system to correct misconduct and errors. If the plaintiffs’ counsel thought McKenna was misstating the evidence in his closing argument to the jury, he could interrupt and object, and get a ruling from the judge.  Or he could wait and highlight his adversary’s misrepresentation in his own final closing argument, which can be a devastating rebuttal. After the jury verdict, he could move for judgment notwithstanding the verdict under C.C.P. section 629, or move for a new trial under C.C.P. section 657, as he did.  McKenna reportedly told the jury, “I’ve got to tell you, in the 30 years I have been doing this, I have never seen a more insulting, factually devoid presentation in my entire career,” but the plaintiff’s counsel did not object to this as improper vouching by the lawyer.  The trial court has a duty to consider properly raised arguments that there were irregularities in the proceedings. Here, the court vacated the jury verdict and ordered a new trial.

How are we to interpret McKenna’s imprudent remarks during the post-trial celebration?  If the ethical prohibition against lying extends to a jury, such lying nevertheless refers to misrepresenting the facts of the case, and does not mean misrepresenting the personal beliefs of the lawyer which are irrelevant.  So long as the argument stayed within the evidentiary record and the law, there was no lie.  The plaintiffs’ lawyer complained that McKenna had admitted in the video to “tricking the jury,” but that seems like sour grapes after losing a 12-0 verdict in 26 minutes.[5]  It is also disrespectful to the jury. If as the video seems to reveal, McKenna personally believed that “a guy was probably negligently killed,” was it unethical for him to argue to the jury that it should not find his client liable, based on the evidence?  Does the lawyer deserve to be publicly criticized or professionally disciplined because he did not personally believe his closing argument on behalf of his client?  Were his post-trial remarks an admission that he had lied to the jury, or merely an admission that after he had done his job as an advocate too well, the jury probably erred? 

At the hearing on the plaintiffs’ motion for new trial, the judge granted the motion based on several factors, but focused his remarks on the lawyer’s video.  “[B]ragging isn’t a great irregularity.  He’s a lawyer.  But here’s the problem: bragging that justice wasn’t done, that’s what bothers the court.”[6]  The lawyer did not breach his ethical duties, but offended the court by crowing about an unjust result from his advocacy.