SCV Talk · Archive
Nine years of the Valley’s town square · 2006–2015
SCV Talk
June 25, 2011· scvtalk.com · WordPress (SCVTalk 3.0) · Wayback capture

HackerBraly Split Raises Questions

By Linda

Today’s Signal announced the split-up of the law firm HackerBraly, LLP into two separate firms.  It is fascinating that this comes a day or two after the filing of a lawsuit against the City of Santa Clarita by Jeffrey Hacker. 

Hunt Braly has practiced in partnership with Hacker since 1999.  His list of clients includes Gate King Partnership, Golden Valley Ranch, Vista Canyon Ranch, Henry Mayo Hospital, Casden Development, and Castaic Lake Water Agency.  In the course of representing these entities and many others, Braly has advocated for them before  the Planning Commision and City Council, often winning approval for their projects.  In his efforts to grease the wheels he has involved himself extensively in the local chamber of commerce and various charities.

Hacker also has experience representing local business interests, including the chamber of commerce, the Valley Industrial Association and the Santa Clarita Car Dealers Association.

It must be awkward then, to say the least, to file suit (or be partners with someone who files a suit) against the entity whose goodwill upon which you depend for a good share of your livelihood .  As Bob Kellar is quoted in today’s Signal, “There’s no way I can wish anyone well who is suing the city of Santa Clarita.”

Generally, law partnerships focus on representing one side of the law.  You have firms who represent employers in labor disputes, and you have  others who focus on representing employees.  You have insurance defense attorneys and personal injury attorneys.  And the two sides don’t share office space for obvious reasons:  it constitutes a conflict of interest.

Even if  the conflict of interest is not current, that is to say, even if you switch sides years later, it may pose legal problems and result in the disqualification of an attorney and negative consequences for unsuspecting clients.  Most attorneys keep lists of clients and, especially in large firms, a conflict of interest check is undertaken prior to taking on a new client for this very reason.

One does wonder if there is a conflict here that goes deeper than the economic interests of the attorneys involved.  I imagine we may hear more on this subject in the coming days.

Comments (16)

  1. MikeJune 25, 2011 at 11:35 am
    Fascinating. I believe I called this one first! #gloat
  2. Timothy Myers SR.June 25, 2011 at 12:28 pm
    Reading the press release this appears to be kind of a fake out. Hacker and Braly will still split overhead costs and revenue probably nearly exactly the same way they are doing it now, and will probably even continue to work together on some cases. In these small law partnerships income is divided generally by production (ie billable hours and cases) and overhead costs, including their single associate, probably split evenly anyway, so going from a “partnership” to an “office sharing” arrangement is something that does not change the economics substantively. What this boils down to is that Jeff Hacker thinks this will really be a “paying” case, though I think it will be difficult and hard to try. They fact they had to make a big show of the “split” does reveal the incestuousness of Braly’s work that he probably had a legitimate concern this would hurt him, even though there is not technically a legal conflict.
  3. LindaJune 25, 2011 at 3:48 pm
    I wouldn’t be so quick to dismiss the possibility of a conflict of interest here, Tim. Wasn’t the Valencia Town Center named as a defendant in the lawsuit? And isn’t Raj Chandani of Westfield Valencia Town Center on the board of directors of the Santa Clarita Chamber of Commerce? According to the HackerBraly website, Hacker has represented the Chamber of Commerce in the past, while Braly is currently on that same board of directors and holds the position of “Vice Chair of Advocacy & Governmental Relations.” Sounds very much like a conflict of interest to me……
  4. Coastal SageJune 25, 2011 at 6:04 pm
    Jeff Hacker is a good trial lawyer, and in the past was a worthy and honorable adversary to my old law firm. So I don’t take kindly to anyone, be it Bob Kellar or someone on a blog like SCVTALK saying Mr. Hacker has conflicts of interest when he doesn’t, as a matter of current California law. Historically, in California, the circumstances under which a lawyer has a “conflict of interest” as a matter of law are defined under the Rules of Professional Conduct adopted by the State Bar and approved by the California Supreme Court has been relatively limited. Those rules are spelled out in the Rules of Professional Conduct. See: http://rules.calbar.ca.gov/Rules/RulesofProfessionalConduct.aspx The American Bar Association’s Model Rules of Professional Conduct, and their “ethical canons” have never applied in California, for the last 35 years or more, because ABA is merely a voluntary organization which most California lawyers don’t join, because the dues are way too high. In addition, California’s big law firms, and many of the state’s smaller law firms, found the content of the ABA Rules to be offensive for one reason or another. So the non-application of the ABA Rules sometimes comes as a shock to out of state lawyers who arrive in California and simply assume they apply here. The California Rules of Professional Conduct don’t use the term “conflict of interest”. Instead, here’s what the relevant Rule relating to representation of clients whose interests appear to be adverse says: “Rule 3-310 Avoiding the Representation of Adverse Interests (A) For purposes of this rule: (1) “Disclosure” means informing the client or former client of the relevant circumstances and of the actual and reasonably foreseeable adverse consequences to the client or former client; (2) “Informed written consent” means the client’s or former client’s written agreement to the representation following written disclosure; (3) “Written” means any writing as defined in Evidence Code section 250. (B) A member shall not accept or continue representation of a client without providing written disclosure to the client where: (1) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; or (2) The member knows or reasonably should know that: (a) the member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; and (b) the previous relationship would substantially affect the member’s representation; or (3) The member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially by resolution of the matter; or (4) The member has or had a legal, business, financial, or professional interest in the subject matter of the representation. (C) A member shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or (3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter. (D) A member who represents two or more clients shall not enter into an aggregate settlement of the claims of or against the clients without the informed written consent of each client. (E) A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.” The reality is that a lawyer can represent clients who obviously have conflicting interests, providing that an informed consent is signed by both parties. However, that principle doesn’t go very far. The lobbying clients of one law partner (Hunt) does not give them a veto power over what new clients another law partner (Jeff) takes, in terms of cases, unless the two clients are actually suing each other, or in the business context both competing to buy the same piece of real estate. Hunt is always very clear about when he’s talking a lobbying contract, where he thinks the State Bar Rules don’t apply, and when he’s taking lawyering contract. That’s why my old boss/mentor used to tell me “If a client doesn’t like what one of my partners is doing, if the clients’ interests are not actually adverse under the State Bar Rules, my client can decide to stick with me or take his business elsewhere.” Of course, my old boss/mentor was one of California’s greatest real estate lawyers and strategists, so his clients generally stuck around. So if Hunt’s clients don’t like what Jeff is doing, they can take their business elsewhere. Or the partnership can break up, which has apparently happened. However, as a result, Hunt can’t directly make good on threats of litigation because it’s been Jeff, and their other former partner, who were the court room lawyers. The ‘adverse interest rules’ in California have been so loose over the years that the law firm which trained me as a young lawyer simultaneously represented in the period of 2006-2011 the City of Santa Clarita concerning the Whittaker Bermite property, a buyer-in-escrow of the Whittaker Bermite property on matters other than Whittaker Bermite, and then certain parties to the sale of partnership management contracts for partnerships where that same buyer-in-escrow company got royally scrued by the party controlling the partnerships. Another example of the looseness of California’s Rules of Professional Conduct is the fact that another law firm simultaneously represented the famous perchlorate polluter Aerojet, wrote an amicus brief to the California Supreme Court on the perclorate polluters’ side in the famous Redlands case which held that medical monitoriting of Redlands residents at the polluters’ expense could not be ordered by a Superior Court, and represented all 4 of SCV’s local water agencies/companies suing another perchlorate, TCE and PCE polluter for contaminating SCV’s drinking water (thus presenting the risk of making adverse appellate case law which could hurt Aerojet and the law firm’s other perchlorate polluter clients) and representing Newhall Land and Valencia Water Company on its water law issues, including those before the California Public Utilities Commission. So quite obviously, there are people in California who are unhappy with the content of the current State Bar Rules of Professional Conduct relating to “adverse interests” and the lack of the use of the term “conflict of interest”…such as some ladies who objected to that one law firm representing their water agency when the conflict of interest was quite obvious. However, the only way to use the current Rules of Professional Conduct to enforce what normal humans deem to be appropriate ethical standards for lawyers, or to prohibit conflicts of interest, is to sue the lawyers involved…and you have to be their client to do that. In September 2010 the State Bar’s Board of Governors passed substantially amended Rules of Professional Conduct, including a new Rule 1.7 defining “conflict of interest”. As in the “old rules” if something isn’t a conflict of interest defined under the new Rules of Professional Conduct, it’s not a conflict of interest, no matter what a client or non-lawyer thinks. The “new” Rules of Professional Conduct can be seen at the State Bar’s website at: http://ethics.calbar.ca.gov/LinkClick.aspx?fileticket=dE8sNanijy4%3d&tabid=2669 However, according to the State Bar’s website on 6/25/11, those “new” Rules of Professional Conduct have still not b
  5. LindaJune 25, 2011 at 7:06 pm
    I don’t take kindly to anyone, be it Bob Kellar or someone on a blog like SCVTALK saying Mr. Hacker has conflicts of interest when he doesn’t, as a matter of current California law . So you’re saying that the fact that Jeffrey Hacker has represented the Santa Clarita Chamber of Commerce in the past and is now suing one of its members is of no import under California law? I imagine counsel for Valencia Town Center might take a differing view, but it will be interesting to see how it all pans out.
  6. Coastal SageJune 27, 2011 at 10:39 pm
    Yes Linda. In California, when a lawyer has a corporation as a client, it’s the corporation not its shareholders (or in the case of a non-profit not its members) who is the client. So Jeff Hacker is free to take any litigation case involving suing a Chamber of Commerce member, and in many interpretations of Rule 3-310, if the Chamber is no longer an active paying client of Hacker’s, in some future hypothetical case he could even sue them.
  7. NateJune 25, 2011 at 9:01 pm
    Berta lives!!!
  8. Gang FangJune 26, 2011 at 8:24 am
    All ye who don’t believe in reincarnation, take heed.
  9. Mr PerezJune 27, 2011 at 10:04 am
    Can I get a hot tub!
  10. IHeartSCVJune 26, 2011 at 11:11 am
    RE: good trial lawyer Coastal Sage, he may be a “skilled” trial lawyer, but I don’t see any trace of “good” or “honorable” in him at all. Rather the opposite.
  11. Coastal SageJune 27, 2011 at 10:43 pm
    Good as in a skilled trial lawyer. Honorable because when he was litigating against another lawyer in my old law firm, he didn’t try any sneaky tricks and when Hacker’s client won Hacker treated the plaintiff who was the loser in the case in a reasonable manner.
  12. MikeJune 25, 2011 at 12:47 pm
    It’s hard to chase ambulances and peddle influence at the same time.
  13. PetzJune 25, 2011 at 3:00 pm
    The Fourth of July case case is exhibit one in why loser should pay.
  14. Coastal SageJune 25, 2011 at 6:25 pm
    Petz, here’s why “loser should pay” won’t work in California. In theory, the family of the deceased pedestrian/fire works watcher could sue only the owner of the car which crashed into the crowd. However, the owner of that car’s insurance company will automatically counter-sue everyone it sight, including the City and the owner of the property hosting the fireworks. So it ends up an everybody suing everybody situation, no matter how reasonable an individual plaintiff wants to be. The problem with “loser should pay” (which exists in England, for example) is that under the Due Process clause to both the state and Federal constitution, “loser should pay” is a guaranteed way to prevent middle class people and poor people from exercising their Constitutional right to sue for damages when the defendant/bad guy, is a big company. If you love the Constitution, then you should hate “loser should pay”.
  15. mikecJune 26, 2011 at 7:16 pm
    Petz, They do have loser pays! You can file a motion for costs, it has been my experience that generally speaking the plaintiff (assuming they lose at trial) will waive their right to file an appeal inturn the defendant (generally the insurance co) will waive their right to costs….
  16. NateJune 25, 2011 at 9:06 pm
    Signature Drama Mama post. Choppy, Haughty and Poorly Written.

Preserved as part of the SCV Talk Archive. Text is presented as originally published; presentation has been standardised for readability. The original capture is available at the Internet Archive.

Support