SHELLER v. THE SUPERIOR COURT

Filed 1/17/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from an order of the Superior Court of Los Angeles County, Anthony J. Mohr, Judge. Reversed and remanded with directions.

ORIGINAL PROCEEDINGS in mandate. Petition granted.

Robert S. Gerstein for Petitioner.

Fulbright & Jaworski, Richard R. Mainland, Peter H. Mason, Joshua D. Lichtman and Eric A. Herzog for Real Parties in Interest.

A Texas attorney appearing pro hac vice for plaintiffs in a class action sent a communication to prospective class members which contained at least one misrepresentation. The trial court issued an order to show cause why the attorneys pro hac vice status should not be revoked. After a hearing, the trial court declined to revoke the attorneys pro hac vice status, and instead ordered the attorney to reimburse the defendant for substantial attorneys fees, as a condition of retaining his pro hac vice status. The trial court also formally reprimanded the Texas attorney. The attorney appeals. We conclude the trial court lacked authority to impose attorneys fees as a sanction and also lacked authority to issue the formal reprimand. We therefore reverse the trial courts order.^[1] However, we also conclude that the trial court has the authority to revoke an attorneys pro hac vice status in certain circumstances, and therefore remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

The challenged order arises in the context of a class action against Farmers New World Life Insurance Company and Farmers Group, Inc. (collectively Farmers). The action alleges Farmers committed unfair business practices in connection with Farmerss Universal Life and Flexible Premium Universal Life insurance policies. Specifically, the action alleges that the insurance policies were set up so that Farmers would collect premiums from policyholders that were insufficient to keep the policies in force resulting in either an untimely lapse of the policies or a substantial increase in premiums. The initial complaint was filed on November 5, 2003. The named plaintiff, Pauline Fairbanks, was not only a Farmers insured, but also a Farmers agent. At the time the complaint was filed, Fairbanks was represented by Attorney Scott A. Marks, who is a California attorney.

At the same time, Attorney David L. Sheller, who is admitted to practice in Texas,^[2]was pursuing a similar class action against Farmers in Texas. On February 2, 2004, Attorney Sheller filed an application to appear pro hac vice as lead counsel on behalf of Fairbanks in the instant action.^[3] The application was granted.

From as early as November 1, 2004, the trial court suggested that Fairbanks might not be an ideal class representative for the insureds, as she had also been a Farmers agent. In June 2005, Attorney Sheller, but not Attorney Marks, sent a written communication to some 350 Farmers policyholders, seeking additional class representatives. The letter was in the form of a flyer,^[4]boldly captioned, Attention Farmers Insurance Group Policy Holders!!! The flyer began, A potential class action lawsuit has been filed against [Farmers] in the State Court of Los Angeles County. We are concerned Farmers may have given you misleading information about this lawsuit. Our intention is to help policyholders and give them accurate information.^[5] The flyer went on to state, If you have purchased such a policy, we may be able to help you. We are looking for other people who have purchased such Farmers policies. If you have, you may be accepted as a class representative. If accepted, you are paid for your time in an amount set by the judge. (Emphasis in original.)

Upon learning of this flyer, Farmers filed an ex parte motion for a temporary restraining order preventing plaintiffs counsel from sending further pre-certification communications to potential members of the class, or, in the alternative, to prevent any such communications without prior court approval. Farmerss motion was based not only on the June 2005 flyer, but also on two other communications which allegedly contained factual misrepresentations about the insurance policies at issue: a September 2003 letter and a telephone survey of 500 Farmers policyholders Attorney Sheller had commissioned.^[6] Farmers supported its motion with an expert declaration to the effect that both the September 2003 letter and the June 2005 flyer violated the California Rules of Professional Conduct. As to the statement in the June 2005 flyer indicating that Farmers may have given [policyholders] misleading information about this lawsuit, Farmers submitted a declaration that it had never made a general mailing to its policyholders, much less a misleading one.^[7]

A hearing on Farmerss ex parte motion was held on July 28, 2005. Attorney Sheller was present. At the hearing, the trial court expressed concern that there seems to be some hucksterism going on here by plaintiffs. While the trial court believed that the September 23, 2003 letter did not comply with the Rules of Professional Conduct,^[8]the court was most concerned by the June 2005 flyer. Specifically, the court found the statement, If accepted, you are paid for your time in an amount set by the judge to be both inappropriate and simply untrue. Not only are class representatives not always entitled to recover, they may in fact be liable for court costs if the defendant prevails. Attorney Sheller responded, As far as the [issue] of whether or not the class rep[resentative] is going to be paid or not, our contract specifically states that if we lose, they can be liable for costs of court. And without divulging any attorney communications, it is my standard practice to tell people that they can lose. The court responded that Attorney Sheller just admitted a bait and switch to me, in that Attorney Sheller initially represented to prospective class members that they would be paid for [their] time, but when the class members signed Attorney Shellers agreement, they were then told that they could be responsible for costs in the event of a loss. The court believed the misrepresentation to be intentional. Attorney Sheller stated that he had no intention to mislead, and added, I think now it will be changed. It wont happen again. The trial court restrained plaintiffs counsel from any further pre-certification communications with potential classmembers without court pre-approval. Finding the June 2005 flyer particularly violative of the ethical rules, the trial court, on its own motion, set an order to show cause why Attorney Shellers pro hac vice status should not be revoked.

There followed substantial discovery and briefing.^[9] Farmers submitted a supplemental declaration from its expert, confirming her opinion that the June 2005 flyer constituted an ethics violation. Farmers also submitted the declaration of a Texas ethics expert, who concluded the flyer violated Texas rules as well.

In response to the order to show cause, plaintiff^[10]argued that the 2005 flyer was accurate with one minor exception. Plaintiff stated her counsel now realized the statement indicating class representatives would be paid for their time was oversimplified and incorrect. According to plaintiffs response, [Attorney] Sheller concedes that this was in error and that he is responsible for this mistake, and he wishes to correct it immediately by a further letter to the potential class, upon the [c]ourts approval. Plaintiff explained that the mistake arose because several lay people looked at the notice in an effort to make it simpler and easier to understand for the average person. [Attorney] Sheller was involved with the review and should have looked at it again and given it more thought before it went out the door to 350 people. However, in the usual press of time and because he did not give extra thought to a letter before it was sent out, [Attorney] Sheller made a human mistake. As to the representation in the flyer that Farmers may have given misleading information about the lawsuit, plaintiff stated, This sentence was placed in the letter because [Attorney] Sheller has twelve (12) years of experience in life insurance sales fraud cases. It has been [Attorney] Shellers experience that when people learn of an alleged problem with their policy, by whatever means, most of the time they contact their agent or the home office. Many times when they call their agent or the home office, they are given inaccurate or misleading information that there is not really a problem at all. [Attorney] Sheller has experienced this in this case with policy holders who received the notice in question. This happens so frequently in these cases that it is [Attorney] Shellers opinion that this is a general business practice in the life insurance industry.^[11]

A draft Corrective Notice and Apology was attached, which repeated the bulk of the text of the flyer, including the sentence, If accepted, you are paid for your time in an amount set by the judge. However, the next paragraph, written in bold type, states, The sentence If accepted, you are paid for your time in an amount set by the Judge is inaccurate. The Court finds that sentence is an ethical violation by Plaintiffs counsel, David L. Sheller. In actuality, you might not be paid at all and could be personally liable for court costs, if the Plaintiff loses. The draft corrective notice did not restate Attorney Shellers concern that Farmers may have given you misleading information about this lawsuit, nor did it retract that statement as ethically improper or otherwise inaccurate.

Attorney Sheller submitted the declaration of his own ethics expert opining that there is nothing materially misleading about the original flyer. As to the assertion in the flyer that class representatives would be paid for their time, Attorney Shellers expert noted that Attorney Sheller conceded that he neglected to specifically state that the judge might not award any amount. The expert concluded this was, at worst a de minimus omission as it cannot be misleading or in any way improper not to have told a client what is obvious to every plaintiff, if you are not the prevailing party, you wont recover a monetary settlement. The expert then made the fairly remarkable assertion that [Attorney] Sheller also has pointed out that he contractually obligated himself to bear any costs that might be imposed against the class representative, so that there simply was never an issue regarding the class representatives potential exposure to monetary costs. In fact, Attorney Sheller had not pointed this out at all. The only evidence before the court on this issue was Attorney Shellers representation at the July 28, 2005, hearing, that his contract specifically states that if we lose, they can be liable for costs of court.

A hearing was held on the order to show cause on December 2, 2005. The trial court noted that its main concern was the representation in the flyer that class representatives would be paid for their time [i]f accepted, while, in fact, class representatives could receive nothing and, according to Attorney Shellers retainer agreement, actually be responsible for costs. Attorney Sheller^[12]argued that there was no ethical violation in the flyer, because there is no requirement that an attorney advertisement include a statement that if the client loses, there will be no recovery.^[13] Farmers argued that the error was not one of mere omission, but an affirmative statement that class representatives would be paid for their time.

Later in the hearing, Attorney Marks argued, for the first time, that there had been no bait and switch because Attorney Sheller had, in fact, obligated himself to pay all costs in the event of a loss. Attorney Marks gave the court a document, which was unauthenticated and had not been previously disclosed to Farmers. The document was a one-sentence letter, purportedly written in July 2004, from Attorney Sheller to Fairbanks, reading simply, In the unlikely event, we lose the case and there are costs that are incurred to you, I will pay them completely. When it was pointed out that this letter was in complete opposition to what had been represented at the July 2005 hearing, Attorney Marks responded that Attorney Sheller had been upset at the July 2005 hearing, and that while he had told the court what his retainer provided, he should have informed the court that he had promised to indemnify Fairbanks for costs, and would do the same with future class representatives.^[14] The court then questioned whether it was ethical for an attorney to agree to indemnify his client for costs that might be imposed against the client; the ethics experts for both parties were in attendance and, predictably, had opposing views on the issue.

The trial court indicated its intention to sanction Attorney Sheller in some manner, and asked the parties for input on any possible lesser sanction to the revocation of Attorney Shellers pro hac vice status. Attorney Shellers expert had suggested, in her declaration, that a reprimand would be the maximum penalty to be appropriately imposed in this matter. Attorney Sheller argued that the prohibition on further pre-certification contact with the class without court approval would be sufficient. Farmers, which had incurred over $140,000 in fees on this issue, argued that, if Attorney Shellers pro hac vice status was not revoked, he should at least be ordered to compensate Farmers for its attorneys fees.

The trial court allowed one final round of briefing. Attorney Sheller admitted that the flyer was not well written and apologized for his mistakes in drafting it. He represented that there had been no bait and switch because, when he issued the flyer, he had already promised Fairbanks that he would pay any costs. Attorney Sheller argued that, when he had written that if accepted, class representatives would be paid for [their] time in an amount set by the judge, he simply meant that an impartial judicial officer would decide how much justice, if any[,] an injured person will receive. He argued that his flyer caused no harm, and that any complaints about the flyer were stylistic in nature. Attorney Sheller argued that he is passionate advocate, who must be zealous in order to survive as a sole practitioner opposing a firm. He suggested that [d]iscipline should only be administered when it is demonstrated that the attorney is representing his own interests as opposed to the clients [interests]. As such, he argued that issuing a new flyer remedying the first flyer would be an appropriate remedy. At no point did Attorney Sheller ever suggest that the trial court lacked the authority to revoke his pro hac vice status, issue a reprimand, or sanction him monetarily.^[15]

On February 27, 2006, the trial court issued its order discharging the order to show cause. The court stated that the June 2005 flyer reads like a crass commercial as opposed to a professional advertisement. The court concluded that the flyer contained at least one statement that was not true, specifically, the representation that class representatives would be paid for their time. The court also found unethical Attorney Shellers July 28, 2005 misrepresentation in open court that his retainer agreement specifically states that plaintiffs can be liable for costs in the event the case is lost, given that Attorney Sheller had, in actuality, agreed to reimburse Fairbanks for any costs incurred in this action. The court did not accept Attorney Shellers claim of overzealousness as an excuse, and specifically concluded that, with respect to the June 2005 flyer, Attorney Sheller had been more concerned with attracting additional clients than with representing Fairbankss interests. While the trial court believed that Attorney Shellers conduct would justify the revocation of his pro hac vice status, the court in its discretion declined to do so.^[16] Instead, the court imposed on Attorney Sheller the responsibility to pay two-thirds of Farmerss attorneys fees, $95,009, as a condition of retaining his pro hac vice status.^[17] Additionally, the trial court formally reprimanded Attorney Sheller for his conduct. Attorney Sheller filed a timely notice of appeal.^[18]

ISSUES ON APPEAL

We first address whether Attorney Sheller can raise any challenge to the courts legal authority to order him to pay attorneys fees to Farmers, and formally reprimand him, in light of Attorney Shellers failure to raise these arguments before the trial court. Exercising our discretion to reach these purely legal issues, we conclude that no authority existed for the trial courts order, and that it therefore must be reversed. We also consider whether a trial court has the inherent authority to revoke an attorneys pro hac vice status. We conclude that such authority exists, allowing a trial court to revoke an attorneys pro hac vice status in, at the least, any circumstance in which it could disqualify a California attorney from a particular case. We therefore remand for the trial court to determine whether to exercise its discretion to revoke Attorney Shellers pro hac vice status.

DISCUSSION

1. Scope of the Appeal

On appeal, Attorney Sheller challenges the trial courts authority to order him to pay Farmerss attorneys fees, to formally reprimand him, and although the order was not made to revoke his pro hac vice status. Farmers responds that these contentions are forfeited, as Attorney Sheller never challenged the trial courts authority to make any such orders. The application of the forfeiture rule is not automatic; appellate courts have discretion to excuse such forfeiture. (In re S.B. (2004) 32 Cal.4th 1287.) Parties have been permitted to raise new issues on appeal where the issue is purely a question of law on undisputed facts. (Frink v. Prod (1982) 31 Cal.3d 166, 170.) This is an appropriate case for the exercise of such discretion. We are here concerned with the purely legal issue of the scope of a trial courts authority to sanction a foreign attorney appearing pro hac vice. It would be a miscarriage of justice to allow a sanction imposed without legal authority to remain in effect simply because the attorney failed to challenge it.

Story continues as Part II .

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^[1] To the extent the order is not appealable, we treat it as a writ petition and grant the petition.

^[2] Attorney Sheller also appears to be licensed to practice in Alabama.

^[3] Farmers challenged the application. In the Texas action, Farmers had disclosed certain materials to Attorney Sheller subject to a confidentiality agreement, pursuant to which Attorney Sheller could use the documents for the sole purpose of matters related to this lawsuit and any other lawsuits in which a counsel of record in this lawsuit is lead counsel. Farmers asserted that confidential documents from the Texas action had been referenced in Fairbankss action in California, in violation of the confidentiality agreement. It appeared to Farmers that Attorney Sheller moved for admission pro hac vice, specifically as lead counsel for Fairbanks, as a post hoc justification for his violation of the confidentiality agreement. Farmers sought sanctions against Attorney Sheller in the Texas action for violation of the confidentiality agreement. When its sanctions motion was denied, Farmers withdrew its opposition to Attorney Shellers application to appear pro hac vice.

^[4] The documents appearance was more akin to a flyer than a letter due to the fact that it was not written on attorney letterhead.

^[5] An item of the so-called accurate information in the flyer is: FACT: Farmers has the right to increase the cost of your insurance over thirty (30) times from the time you are age 50 to age 85. This is not a fact. Farmers has the right to increase the premiums every five years only; thus Farmers could only increase the cost of insurance at most eight times over the 35-year period. Attorney Sheller claims that what he had intended to say was that the cost of the insurance at age 85 could be more than 30 times the cost of the insurance at age 50. This, too, was incorrect. Attorney Sheller admitted a calculation error; the cost of the insurance could, at age 85, conceivably increase to, at most, 25 times its cost at age 50.

^[6] The September 2003 letter, which was sent on the combined letterhead of Attorneys Sheller and Marks, and signed by both attorneys, informed Farmers policyholders that, if they purchased one of the challenged policies and are paying less than the maximum premium, the chances are very high your policy will lapse. Farmers took the position that, while lapse was conceivable, there was no basis to assert the chances of lapse were very high. The telephone survey contained some questions that were somewhat loaded. For example, it asked policyholders, [A] phrase in the policy says, the actual amount and frequency of your premium payments will affect the values and duration of your policy. Did you understand that this means, that even if you make regular payments of the planned premiums, you could lose your insurance before age 95?

^[7] Farmers also noted that, on June 7, 2005, in an unrelated communication, Attorney Sheller wrote Farmers counsel stating, We are aware you sent a letter to policy holders regarding the survey. We intend to make policy holders aware of what is actually going on. Farmerss counsel submitted a declaration indicating that, having sent no such letter, he telephoned Attorney Sheller on June 20, 2005 asking if Attorney Sheller had seen any such purported letter. Attorney Sheller responded that he had not seen the letter, but that he had been told by the survey company that someone at the survey company had received a copy of a letter sent by Farmers to its policyholders concerning the litigation. It would come to pass that no such letter ever came to light. Apparently, one of the telephone surveyors was told by a policyholder that the policyholder had received a letter from Farmers regarding the class action lawsuit stating they might be contacted. While the surveyor noted this comment and gave it to her supervisor, there is no evidence that the survey company ever obtained a copy of the letter, or attempted to follow up with the policyholder in any way. In any event, we are hard pressed to see where an alleged letter from Farmers stating a policyholder might be contacted provides any sort of basis for Attorney Shellers statement in the flyer that Farmers may have given [policyholders] misleading information about this lawsuit.

^[8] The court concluded the questions on the survey appeared loaded, but the court was unprepared to say that they were inappropriate.

^[9] In large part, Attorney Sheller focused on his basis for making the factual representations regarding the insurance policies themselves; that is, the likelihood of the policies lapsing if the policyholders pay only the premiums they reasonably believed they needed to pay. Ultimately, the trial court did not base its order on any of these representations, choosing not to become involved with the underlying merits of the action at that time.

^[10] The response was filed on behalf of Fairbanks, rather than Attorney Sheller himself.

^[11] Plaintiff also noted that the company conducting the survey had indicated that policy holders contacted for the survey were receiving letters from Farmers telling them that a survey was being conducted and that there was a class action lawsuit, and that individuals associated with Farmers attempted to deny their association in order to take the survey, and were verbally abusive to the survey takers. Even if true, none of these facts give rise to an inference that Farmers was making misrepresentations about the lawsuit to its policyholders.

^[12] Attorney Sheller was represented by independent counsel at the hearing.

^[13] In this regard, we note that Business and Professions Code section 6157.2, subdivision (d) prohibits an attorney advertisement from including a statement offering representation on a contingent basis unless the statement also advises whether a client will be held responsible for any costs advanced by the [attorney] when no recovery is obtained on behalf of the client. If the client will not be held responsible for costs, no disclosure is required.

^[14] Curiously, given the declaration of Attorney Shellers expert, Attorney Sheller had clearly remembered the existence of this agreement by the time of the opposition to the order to show cause. Nonetheless, Attorney Sheller did not submit a copy of this agreement or a declaration of himself or Fairbanks regarding it. Instead, he had submitted a draft corrective notice and apology which would have represented to prospective class members that they could be personally liable for court costs in the event of a loss a complete falsehood according to Attorney Markss representation that Attorney Sheller had agreed to indemnify Fairbanks for costs and would do the same for other class representatives.

^[15] At most, he argued that he could not be ordered to pay Farmerss attorneys fees as Farmerss counsel had failed to meet and confer on the issue of the propriety of the flyer.

^[16] The courts decision was made without prejudice to reconsidering, on a motion for class certification, whether Attorney Sheller could appropriately represent the class.

^[17] The trial court concluded that all of Farmerss claimed fees were legitimate. However, as Attorney Sheller had not been permitted to challenge individual line items on Farmerss bills for reasons of confidentiality, the court reduced the fees by one-third to guarantee that the amount was fair.

^[18] The trial courts order also made permanent the previous order preventing precertification communication with the prospective class members without court approval. Attorney Sheller does not appeal from this portion of the order.