‘Christian sympathy’ and ethical violations in Trinity fight?
April 9th, 2012, 12:00 am by Teri Sforza, Register staff writer
We’ve been talking about how
attorney Doug Davert, former Tustin mayor,
has been
accused of professional misconduct by the granddaughter of the Trinity
Broadcasting Network empire.
Brittany Crouch
Koper filed a suit against Davert and his partner, David
Loe, claiming professional negligence, and has filed a complaint
against the lawyers with the California Bar Association.
The
accusations in Koper’s suit are many and occasionally sordid (Koper asserts
that Loe sexually harassed her, grabbing her breasts and slapping her buttocks
— which Loe
categorically denies), but one of the main legal issues is whether Davert
& Loe committed the mortal legal sin of surreptitiously suing their own
client — while they were representing her as “trusted legal advisers.”
“That’s not a subtle point,” said
Ronald Rotunda, distinguished professor of jurisprudence at
the Chapman University School of Law. “I don’t know these
parties and I don’t know the facts of the case … but it’s certainly the case
that a lawyer cannot act adversely to a present client, and not to a former
client if relying on confidential information obtained in the course of
representing that client, or if that client had a reasonable belief that the
attorney was still representing that client.”
That’s pretty much how Erwin
Chemerinsky, dean of the UC Irvine School of Law,
sees it as well. “As a matter of law, it is clear that a lawyer may not sue a
current client even in an unrelated matter,” he told us by email.
We’ve had several chats with
other legal scholar types as well, who said much the same thing.
“The normal principle would be
that the client expects that the lawyer would not be adverse to the client in
any matter while representing that client,” Rotunda said. Attorneys who have
been repping both a corporation and an individual employee have a duty to make
clear precisely where their loyalties lie if the corporation and individual get
into a conflict — and to inform the individual that he might want to retain his
own, separate counsel.
Attorneys can try to make all this
clear by writing a “disengagement letter” to the individual, stating that the
attorneys will no longer be representing the client, in language regular folk
can understand.
“There were no engagement
letters, no disengagement letters, no conflict waivers, no discussion of
potential or actual conflicts, and no ‘informed written consent’ as mandated by
the Rules of Professional Conduct in California,” MacLeod, Koper’s current
attorney, told us by email. ” Moreover, representing your client at pre-trial
hearings or trial is absolutely prohibited, even if there were waivers (which
there were not in this case). These are per se violations of Rule 3-310 of the
California Rules of Professional Conduct, and a irrefutable violation of the
attorneys’ duty of loyalty. You simply don’t sue your own client, even if TBN
pays you a lot of money to retaliate against her. Period.”
Davert & Loe said they did
nothing wrong in
their response to Koper’s suit, and in a follow-up query.
“While Mr. MacLeod chooses to
present his client’s version of the facts in the media; we will present Davert
& Loe’s version in court and fully expect to prevail,” said attorney Jon
Cole by email. “Davert & Low has performed ethically throughout
its tenure of nearly two decades and continues to do so. Any claim that Davert
& Loe violated the California Rules of Professional Conduct governing
attorneys does not mean that the firm or its lawyers were negligent because
there is no independent cause of action for the breach of a disciplinary rule
in California. The scope of Davert & Loe’s representation of Ms. Koper,
whether they breached any duty owed to Ms. Koper and/or caused her any damage,
and Davert & Loe’s defenses to her suit are case specific issues, which
will be adjudicated on their merits in court. Until then the public and press
should reserve judgment and take Mr. MacLeod’s self serving statements with a
grain of salt.”
WHAT’S THIS ALL
ABOUT?
So last year, Koper went to
Davert & Loe with suspicions over the legality of some $50 million
in payments made to TBN’s directors, only to be told to shut up, return
everything she had earned through TBN to the company, and be gone, according to
the suit and Koper’s current attorney, Tymothy MacLeod.
In October — after Koper had been
dismissed from Trinity, but while Davert & Loe were still representing her
— Loe formed a company called Redemption Strategies Inc.,
which then “secretly” sued Koper and her husband, charging them with
embezzlement, fraud, intentional misrepresentation and other misdeeds. That
suit was soon dismissed, but it is the most fundamental breach of professional
conduct for an attorney to sue his own client, MacLeod said.
In their response,
filed in federal court, Davert & Loe deny the allegations. “The
defendants, who deny liability in this matter, do not try matters in the
press,” their attorney, Claudia Stone, told us by email last
week. “They look forward to presenting all the facts and evidence and defending
Ms. Koper’s frivolous claim on the merits in court. ”
We spoke to Davert briefly when
all this first broke last month. “Her assertions are outright fiction and
wholly without merit,” he told us at the time. “The allegations are defamatory
and to the extent they get printed we are going to defend ourselves
vigorously.” He has declined to chat further, on the advice of his attorney.
(You
can read Koper’s suit against Davert & Loe here. You
can read Davert & Loe’s response to that suit here.)
POINT BY POINT
Davert
So, did Davert & Loe
represent Koper? Were ethical rules broken? Let’s do a little back-and-forth.
- From Koper’s suit, paragraph 9: ”The Defendant Attorneys were Ms. Koper’s attorneys
of record, legal advisors, and legal representatives. The Defendant
Attorneys represented Ms. Koper in multiple legal matters both before and
during the events giving rise to this complaint, including within the last
year.”
- From D&L’s response to paragraph 9: “Defendants admit that the D&L Firm
represented Ms. Koper as an employee of Trinity Christian Center of Santa
Ana, Inc. doing business as Trinity Broadcasting Network, a California
religious non-profit corporation (‘TBN’) in a case entitled Rivera v. TBN
filed in 2008 and ordered to arbitration and in a case entitled Brandt vs.
TBN filed in 2011. Except as expressly admitted, Defendants deny the
allegations in that paragraph.”
- From Koper’s suit, paragraph 36: “After Ms. Koper was terminated by the TBN
Companies on or about September 30, 2011, the Defendant Attorneys
continued to act as her lawyers, providing legal advice to Ms. Koper.”
- From D&L’s response to paragraph 36: “Defendants admit that they represented Plaintiff
in the Brandt Litigation as an employee of TBN until January 10, 2012.
Except as expressly admitted, Defendants deny the allegations in that
paragraph.”
- From Koper’s suit, paragraphs 48 and ’49: “On or about October 17, 2011, while still
representing Ms. Koper in the Brandt Litigation and advising Ms. Koper
with respect to the post-termination Christian ‘contrition’ matter, the
Defendant Attorneys secretly filed formation papers with the California
Secretary of State on behalf of Redemption Strategies, Inc. (‘Redemption
Strategies’), a new California corporation. The next day, on or about
October 18, 2011, the Defendant Attorneys filed a lawsuit on behalf of the
newly formed entity, Redemption Strategies, in the California Superior
Court for Orange County, Matter No. 30-2011-00516179 (the ‘Redemption
Strategies Litigation’). Plaintiff is informed, believes, and based
thereon alleges that Redemption Strategies was formed by the Defendant
Attorneys solely for the purpose of suing Plaintiff, who was still
represented by the Defendant Attorneys in the Brandt Litigation and
Christian contrition’ matters, anonymously (i.e., on behalf of unnamed
“Doe assignors”) to conceal wrongful conduct by the Defendant Attorneys.
- From D&L’s response to paragraphs 48 and 49: ”Defendants admit that they formed Redemption Strategies, Inc., a California corporation, (‘Redemption Strategies’) on October 17, 2011. Except as expressly admitted, Defendants deny the allegations of that paragraph…Defendants admit that they filed the case entitled Redemption Strategies, Inc. v. Michael Koper (Brittany Koper’s husband), etc. et. al. as Case No. 30-2011 00516179 in the Superior Court of the State of California for the County of Orange (the ‘Redemption Strategies Litigation’) on October 18, 2011. Except as expressly admitted, Defendants deny the allegations of that paragraph.
Koper, far left, and the Trinity Broadcasting family
From
Koper’s suit, paragraphs 52-54: “the Defendant Attorneys used
the case number in the Redemption Strategies Litigation to secretly send
numerous subpoenas to multiple banks and other institutions seeking the bank
records of Ms. Koper and the other defendants in the Redemption Strategies
Litigation….the Defendant Attorneys did not inform their client, Ms. Koper,
that they had filed the First Amended Complaint naming Ms. Koper as a defendant
in the Redemption Strategies Litigation…
- From D&L’s response to paragraphs 52-54: “Defendants admit that they served deposition
subpoenas for production of business records with notices to consumer in
the Redemption Strategies litigation. Except as expressly admitted,
Defendants deny the allegations of that paragraph….the allegations that Defendants
acted with conflicts of interest is a legal conclusion to which no
response is required; however, Defendants deny these allegations to the
extent that a response is required and deny the other allegations of that
paragraph.”
- From Koper’s suit, paragraph 55: “Throughout this same timeframe, the Defendant
Attorneys were still serving as counsel of record for Ms. Koper in the
Brandt Litigation and advising Ms. Koper how best to avoid ‘jail time’
through the recommended course of Christian ‘contrition’ (i.e.,
purposefully reducing herself to poverty and pleading for ‘Christian
sympathy’).”
- From D&L’s response, paragraph 55: “Defendants admit that they filed the first
amended complaint in the Redemption Strategies Litigation naming Plaintiff
as a defendant on December 1, 2011 and that they remained Plaintiff’s
counsel of record in the Brandt Litigation until January 10, 2012. Except
as expressly admitted, Defendants deny the allegations in this paragraph.”
- From Koper’s suit, paragraph 56: “After Ms. Koper learned about the Redemption
Strategies Litigation in mid- December 2011, Ms. Koper demanded that the
Defendant Attorneys recuse themselves as legal counsel, based upon the
overt conflicts of interest, both for Redemption Strategies suing Ms.
Koper and her family members in the Redemption Strategies Litigation and
for Trinity Broadcasting in the Brandt Litigation. The Defendant Attorneys
refused to withdraw as counsel of record in either matter.
- From D&L’s response to paragraph 56: “Defendants deny the allegations in this
paragraph.”
We’ll see how this shakes out.
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