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The Bar Complaint Process in California In California a bar complaint is first read by complaint analysts. The appeal goes to attorneys. This is an appeal in response to the Bar's response to my complaint regarding attorney Michael Lowy of Palo Alto. The letter is self explanatory as to the situation: attorneys Ron Romines and Michael Lowy shared private client emails. The bar's initial response: it might have been evidence. I am not sure an attorney would have said that, it so obviously shakes the foundation of attorney client privilege and the definition of evidence. For background on the eroding of attorney client privilege in California, see attorney John W. Amberg, litigation partner in the Santa Monica office of Bryan Cave LLP on Saving the Attorney Client Privilege Amberg is a member and former chair of L.A.CBA's Professional Responsibility and Ethics Committee and also a member of the State Bar's Committee on Professional Responsibility and Conduct. If anyone has questions about this situation, visit DUMB BLONDE and read, "My Neurons Make me Do It" |
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Ann Bradley Palo Alto, CA 94301 January 24, 2009 Audit and Review Office of the Chief Trial Counsel 1149 South Hill Street Los Angeles, CA 90015 Re: Inquiry Number 08-24220 Respondent: Michael Lowy Audit and Review: This is a request for a review of your decision of the above numbered complaint against attorney Michael Lowy of Palo Alto. Summary of Complaint Mr. Lowy accepted privileged communications from opposing counsel and neglected to tell me either of their existence or content. These were prejudicial to me and without knowledge of their existence I could not rebut or defend. Prior to receiving the emails Mr. Lowy would return my calls. After he received the emails, Mr. Lowy failed to communicate the status of the case, return phone calls, or emails for a period of over seven months and at another time for a period of four months. These emails came from opposing counsel (Ronald Romines) to Lowy. They were written by Romines’ client. Lowy agreed to read them. This was documented in an email accidentally left in my file. The return of my file was the first time I became aware of these emails and the (written) agreement to share them. They had been shared over a year earlier, during which time the case continued without my knowledge of the emails or their content. I am not an attorney so I can only interpret Rule 3-100 from my frame of reference, but I have consulted an attorney regarding this issue and his reading of it parallels mine. There is no exception. There is no "in this case" it doesn't apply. Rule 3-100 doesn't leave leeway. Yet, your letter to me suggests some reasons it might be ok to violate Rule 3-100. Your letter of October 28 made statements I will address. These constitute my appeal. 1. You stated: "In order to obtain attorney discipline, the State Bar must present clear and convincing evidence of wilful misconduct. We cannot conclude that it was misconduct for your attorney to read the emails between opposing counsel and his client..." If the definition of wilful misconduct is "Intentionally doing something that is wrong...." (Dictionary of Law) then we have to look at both intent and the act itself to determine if it is wrong. In this case it is impossible to deny intent since Mr. Lowy agreed, in advance, to receive and read copies of the emails in question. He therefore intended to read them. He knew they were emails from Mr. Romines' client to Mr. Romines which is privileged information. He did not tell me, his client, he had them. I find it curious that he did not do so, except that he knows Rule 3-100 forbids him to read privileged information. 2. The second part of wilful misconduct is the act itself : was it misconduct for Mr. Lowy to agree to accept and read privileged information? You state: "We cannot conclude that it was misconduct....since the client may waive confidentiality and the emails may have been relevant evidence as to issues in the case." Taking number one first: the client may waive confidentiality. I have asked Mr. Lowy to provide me with a waiver of confidentiality from the client. He has not done so. I assume if it existed Mr. Lowy would have provided it since he was made aware of this bar complaint and I further assume he would have preferred not to have one. The second reason given by your analyst for justifying the action: ".....the emails may have been relevant evidence as to issues in the case." This is a confusing statement. The emails between a client and his attorney are privileged and by definition, no matter what the content, they may not be given to opposing counsel. I am unclear how the word evidence is being used in this context. If the word is being used as "evidentiary material" for a court case, understand that trial and appeal had been concluded, but had they not, I still fail to see how privileged communications can be defined as evidence and handed over to opposing counsel. 3. Your response did not address the issue of Mr. Lowy's failure to communicate with me. I am enclosing two emails showing long periods of times when he failed to respond. The email of Jan 22 was after seven months of failure to communicate. The email of June 9th was after waiting since February to hear from him. Both Mr. Lowy and Mr. Romines knew I had been defrauded and financially marginalized . They both read the decision from the Court of Appeals which was in my favor and yet they both engaged in the same behavior which damaged me. Mr. Lowy failed to act competently as my counsel based on the above facts. In addition to ethics violation of Rule 3-100, he also breached his fiduciary duties by failing to inform me of his acceptance of the emails and allowing me no chance to rebut and further, by his failure to communicate with me for long periods of time (seven months, four months). If the State Bar finds no problem in his accepting privileged communications from opposing counsel and failing to tell me, and following this, neglecting to communicate with me for months at a time, I would like a basis for this decision. Thank you for your time and consideration of this matter. Sincerely, Ann Bradley enc: emails Jan 22, Jun 9 |