BY EDWARD McINT YRE
ETHICS
E
Candor Always Works Non-disclosure to a court is the same as a half-truth or misrepresentation.
M
acbeth ushered Todd McSweeney to the conference table. “Let’s wait for Sara and Duncan.”
“Your castle, your rules.” With everyone seated and introductions complete, Macbeth nodded. “Todd, from the beginning?” “OK, but it’s complicated.” Macbeth smiled. “I think we can handle it.” “Well, I’m in these class actions. Not lead counsel or anything. But I’ve got a piece of the action.” “Could you explain?” “Sure. Rounded up a few class plaintiffs. Then referred them to class-action lawyers in Los Angeles. They filed the lawsuits. They’re lead class counsel.” Sara interrupted. “State or federal court? Not that it makes any difference.”
CARTOON BY GEORGE BREWSTER JR.
“But good question. Massive case. Federal court. Judge Smiley. Pleasant enough, few times I’ve been in the courtroom.”
Macbeth asked, “Are you counsel of record?” “Well, technically. I appeared for the plaintiffs I referred. But just that. To get notices and stuff. Participate in any fee award.” “I see.”
money has to go to Norwegian charities with specific purposes. All spelled out.” “Not all that unusual, in fact.” “Really? Class actions aren’t my thing either.” Macbeth intervened. “What’s the ethics issue, Todd? I assume that’s why we’re here.”
“But it’s not like I sign pleadings or anything. Never stood in front of Smiley and said anything. When I’m in court, I sit in back. Watch. Federal court’s not my thing.”
“We found a Norwegian charity. Fits the bill. Just crazy luck. No names, OK?”
“We have the picture. How can we help?” “The class actions — several of them — settled. So, I’m about to see pay day. But there’s a hitch.”
“Good one. Norge’s ideal. Except for Norwegian law. Its lawyers say Norwegian tax authorities will grab a huge chunk of any award to Norge. Scandinavian tax systems!”
Macbeth invited McSweeney to continue.
“So?”
“One settlement requires class money go to Norwegian citizens. Crazy. Don’t ask me. It’s complicated. But that’s the requirement.”
“They’ve got an idea.”
Sara again: “What happens if there aren’t enough Norwegians filing claims?”
“Hey, this is privileged, right?”
“Just what happened. We couldn’t find many Norwegian class members. Leftover
“Call it Norge?”
“I’m afraid to ask.” “Attorney-client privilege. Also confidential under section 6068(e)(1). Feel free to continue.” “I form a California corporation. With the exact name as Norge. Open bank accounts here. Deposit the award into those accounts. Then disperse funds as Norge directs.” “Think Judge Smiley will approve?” “If I don’t tell him? After all, I’m not making representations to the court. Not signing pleadings. What’s my risk?” Sara spoke, “Rule 5-200 and section 6068(d) prohibit misleading a judge. But —” “But I’m not making any representations to a judge —” “I was about to add, without evidence of specific intent to deceive the court, you might escape a violation of the rule and section 6068(d). But that may not be your only risk.”
January/February 2018 SAN DIEGO LAWYER 13