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Will Harsh Ruling Over Qualcomm Discovery Increase Chances of Bar Discipline?
Unusually detailed ruling, specifying which Bar rules may have been broken, may up the odds of the attorneys being disciplined
The Recorder
January 09, 2008
It's rare that lawyers from marquee firms get punished by the State Bar.
But details in this week's harshly worded opinion sanctioning lawyers in the Qualcomm discovery mess are more likely to spur action from the California State Bar, legal ethicists say.
On Monday, U.S. Magistrate Judge Barbara Major sanctioned five attorneys from Day Casebeer Madrid & Batchelder and one from Heller Ehrman for their roles in "monumental" discovery violations in a patent infringement case between Qualcomm Inc. and Broadcom Corp. She also sanctioned Qualcomm for intentionally withholding "tens of thousands of e-mails" that it should've turned over during the litigation.
Major referred the attorneys -- Day Casebeer's James Batchelder, Adam Bier, Kevin Leung, Christian Mammen and Lee Patch, and Heller's Stanley Young -- to the State Bar for investigation. But she also specified which State Bar rules the attorneys may have violated -- an unusual step, according to attorneys and legal ethicists.
"I've never seen any opinion where they say which rule they think was violated," said Diane Karpman, a partner in Los Angeles' Karpman & Associates who defends lawyers against State Bar discipline charges. "Usually in the referral, it will lay out the facts, but it won't pinpoint the rule that was violated."
Major wrote that the attorneys may have violated California Rules of Professional Conduct that prohibit lawyers from suppressing evidence (5-220) and misleading a judge or a jury by false statements (5-200).Karpman said that including the details could provide a roadmap for the State Bar if it pursues an investigation.
"It's such a detailed opinion," Karpman noted, "which sort of puts the Bar's feet to the fire."
Jeffrey DalCerro, assistant chief trial counsel for the State Bar in San Francisco, downplayed the effect of the judge's unusual ruling. "Generally, if we read the facts, we're going to figure out what rules are implicated," he said. He would not comment specifically on the Qualcomm case.
DalCerro did note that the Qualcomm case "is interesting to many lawyers" because "it implicates things that lawyers deal with on a daily basis."
Paul Grewal, a Day Casebeer partner, said the firm looks forward to any State Bar investigation. "We're confident in that proceeding that our attorneys will be vindicated and their ethics will be confirmed," Grewal said.
The ruling may also be a roadmap to a malpractice suit. In a footnote to the ruling, Judge Major explained why she didn't level fines on the sanctioned lawyers. One reason, she wrote, is that Qualcomm may try to make them pay.
"It is possible that Qualcomm will seek contribution from its retained attorneys after it pays Broadcom's attorneys' fees and costs and, in light of that significant monetary sanction, an additional fine is unlikely to affect counsel's future behavior."
Qualcomm might think twice about a malpractice suit, however, because it would allow the lawyers to break attorney-client privilege and defend themselves.
William Boggs, a DLA Piper partner who represents Qualcomm, said that no decisions have been made."The company is continuing to analyze all of its options, including further appeal and potential malpractice actions, and has not made any decision on these matters as yet," Boggs said.
One thing that everyone can be sure of is that the case will be told and retold to law students and young lawyers as a cautionary tale.
"These are the kind of cases that enter casebooks and the classroom," said Deborah Rhode, a legal ethics professor at Stanford Law School.
