Being a Zealous Advocate Precludes Ratting On a Client.

All the recent furor over the sanctions imposed on the client and counsel in the Qualcomm v. Broadcom (05CV1958 S.D. Cal.) took a real turn. The Magistrate ruled on the sanctions, and now, the Judge has vacated the sanctions as to the objectors. The issue was the “self-defense exception” to the privilege against disclosure of attorney-client communications. The objecting attorneys were given leave to defend the sanctions rulings, on remand to the Magistrate, using attorney-client communications “(electronic or other)”.One of the oddities in the intersection of the discovery sanctions rules of the courts and the rules of professional responsibility and of privileges is that an attorney cannot rat on his client. When attorneys make representations about discovery, then that attorney takes the heat for that representation. It is unprofessional, indeed prohibited by the rules of professional responsibility, to respond to a discovery sanction motion by claiming that your client was not candid or had misled you about what records or discoverable information it possessed. It is a unique feeling to stand before a Judge and get dressed down, knowing that all you did was repeat what your client told you in a privileged conversation. The client said ‘we have no documents’ about topic A, and the attorney repeated that in a discovery response or in opposition to a motion to compel. Then, the client’s privileged statement is proven to be false, and the attorney gets sanctioned along with the client.The next level of that hell is that the attorney cannot, or is very limited, in appealing the sanction against the attorney. It often is a non-final ruling, or is a collateral order not involving a party. If the attorney cannot put on the record the communications that were at the heart of the sanctioned conduct, then even if he could appeal, there would be nothing in the record to be reviewed.An attorney just cannot rat on the client, or blame the client for the discovery misconduct. This recent ruling in Qualcomm turns on the fact that, in the prior proceedings, there was no adversity of interest between Qualcomm and its attorneys. Then, in connection with the most recent round of sanctions motions, Qualcomm filed declarations that “were exonerative of Qualcomm and critical” of the attorneys. On that basis, the Judge sustained the objections and granted leave for the attorneys to defend themselves using privileged communications.