# Petition — McCord v. Bailey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1137%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 451 U.S. 983 ## Text No. IAN i3 {981 @. ‘Smaes IN THE | . Supreme Court of the Gunited States OCTOBER TERM, 1981 JAMES W. McCORD, JR.., Petitioner, V. F. LEE BAILEY, GERALD ALCH, BAILEY, ALCH AND GILLIS, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA RUFUS KING RUFUS KING, Ili KING & NEWMYER 910 - 17th Street, N.W. Washington, D.C. 20006 (202) 466-5440 Attorneys for Petitioner Washington, OC e CLB PUBLISHERS’ e LAW PRINTING CO e (20?) 393 0625 (i) QUESTIONS PRESENTED FOR REVIEW 1. May collateral estoppel be invoked against a party who has never litigated the precluded issue in any forum? 2. Is the standard for determining legal malpractice in criminal cases the same as, and no less exacting than, the test for constitutionally-required “effective assistance of counsel’’? 3. Is a verdict and judgment of guilty in a criminal case an absolute bar to claims for injury, negligent or deliberate, otherwise assertible against the convicted defendant’s coun- sel; is it true, thus, that only acquitted defendants have protection against the indifference, incompetence or treach- ery of their counsel; and is conviction the only cognizable injury sufferable by accused wrongdoers caught up in the administration of criminal justice? 4. Is the practice of forcing civil-case plaintiffs arbi- trarily to “rest” by cutting off discovery with no relation to trial schedules a misapplication of the Federal Rules? (ii) TABLE OF CONTENTS Page TABLE OF AUTHORITIES .....0.s0000c00suuueeeeeee ili OPINIONS DELIVERED BELOW ........554005503scseeees JURISDICTIONAL STATEMENT ........00ssccccesess 2 CONSTITUTIONAL PROVISIONS, STATUTES AMD RULES. .0.0cccccsassucerseunsce5s eee 2 STATEMENT OF THE CASE. ......:..++0sssnenunesees zZ ARGUMENT . .. ..cscccssctccvcvdusecand beans Meee 5 I. THE COURT OF APPEAL’S ENLARGE- MENT OF COLLATERAL ESTOPPEL IN THIS CASE IS CONTRARY TO ALi PRIOR AUTHORITIES, INCLUDING RECENT RULINGS BY THIS COURT......... 5 Il. THIS COURT SHOULD CLARIFY THE LEGAL MALPRACTICE STANDARD, THE “EFFECTIVE ASSISTANCE” TEST, AND THE RELATION BETWEEN THE TWO. ......0c0s0vs00ee00eeee ee eeeeeeene 6 III. THE HOLDING THAT A CONVICTED DEFENDANT IS BARRED BY HIS CON- VICTION FROM ANY RECOVERY FOR ANY DERELICTION BY HIS COUNSEL MUST BE OVERTURNED) .....50 justice. McCord contends the Court of Appeals erred: even apart from the element of willful dereliction here,’ the constitutional standard is (and should be) higher, far more flexible, and more subjective than the simple, classic and universally established tort-malpractice test, “exercising that degree of skill and learning normally applied by attorneys at law who practice in the | District of Columbia]”’. But right or wrong, the instant opinion cannot fail to spread confusion and doubt among future defendants and litigants. This Court will sooner or later have to lay down authoritative guidelines in both fields, and McCord respect- fully urges that that be done here, in his case. Ill. THE HOLDING THAT A CONVICTED DEFENDANT IS BARRED BY HIS CONVICTION FROM ANY RECOVERY FOR ANY DERELICTION BY HIS COUN- SEL MUST BE OVERTURNED. The trial Court and the Court of Appeals in this case have fashioned a remarkable total immunity‘ for defense lawyers from an old—and inappropriate—District of Columbia precedent, Niosi v. Alello, 69 A.2d 57 (D.C. Mun. App. 1949). App. A, p. 8a. That case held, in a malpractice >The Ninth Circuit, in a case which happens to involve one of the same defendants, has granted relief for disloyalty and conflict of interest that pales beside what McCord charges here. United States v. Hearst, No. 78-3612 (decided October 17, 1980), set forth herein at App. D., p. Id. *See Nee/ v. Magne Olney, Cathcart & Gelfand, 491 P.2d 421, 429- 30 (Cal. 1971). ~~ 8 action against an attorney for overlooking a statute of limitations in a civil action, that there could be no recovery because the barred suit couid not have been brought anyway, for want of a proper party plaintiff. Also, impliedly at least, the Court of Appeals denies relief to McCord because it is not persuaded, at this long remove, that a vigorous defense, and one or more of the neglected or suppressed defense theories, would necessarily have won him an acquittal. The net effect of this is that no matter what their indifference, or even active treachery, defense lawyers may only be called to account by acquitted clients; and, con- versely, reviewing courts are free to brand malpractice plain- tiffs guilty and remediless as an incontestible matter of law. Both those propositions can only make mischief. In the development of standards and sanctions to deal with below- minimum criminal defense practitioners, it must be recog- nized that there are many points, from initial arrest to final parole or pardon application, where the conduct or miscon- duct of defense sounsel can aid—or injure—even a guilty client. ° IV. THIS CASE EXEMPLIFIES AN ABUSE OF THE FEDERAL RULES OF CIVIL PRO- CEDURE, PREJUDICING PLAINTIFFS IN DISCOVERY EFFORTS, WHICH SHOULD BE CURBED. In the District of Columbia Circuit and elsewhere a practice has developed, mainly at the instigation of the defense bar, that handicaps and prejudices plaintiffs without ~ SSee the discussion of Cuyler v. Sullivan, No. 78-1832 (decided May 12, 1980) at App. D, pp. 6-7d. contributing anything towards the efficient administration of the civil courts—and which is inconsistent with both the letter and the spirit of the Federal Rules. That is the practice of fixing an arbitrary cut-off for discovery without any relation to trial schedules or trial dates. McCord was victimized by this. Encountering unusual difficulties (most deponent-witnesses were busy lawyers, represented by busy lawyers; some were still in jeopardy or actually involved in civil and criminal proceedings; some “stonewalled” or kept retreating into the briarpatches of privilege and “‘work product’’; and the trial Court ruled against him at nearly every turn), he was cut off arbitrarily before any trial date had been determined. In effect, this obliged him to “rest,” as if he were carrying a burden of proof, and indeed the Court of Appeals notes, “the district court also found that McCord had failed to prove... etc.” App. A, p. 7a. The Federal Rules of Civil Procedure are intended to secure the just, speedy, and inexpensive determination of every action. Rule 1. Discovery may proceed in any sequence, and simultaneously by all parties. Rule 26(d). Motions for failure to state a claim on which relief can be granted, and for judgment on the pleadings, may be made within such time as not to delay the trial, Rule 12(b) & (c), and the latter may even be made at the trial. Rule 12(h)(2>. And motions for summary judgment may be made “‘at any time’ (more than 20 days after commencemert of the action). Rule 56(a) & (b). Rule 56 deals specifically with the situation wherein a party needs additional time (and discovery opportunity) to respond to a dispositive motion depending on facts: “(f) When Affidavits are Unavailable. Should it appear from the affidavits of a party opposing the motion that he cannot for reasons stated present by 10 affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” Plainly, accordingly, the Rules were intended to allow all litigants to press discovery as far as they could, up to the time of trial. If plaintiffs are to be pressured or cut off, the only justifiable grounds for doing so is the availability of a trial date. Freezing plaintiffs’ cases earlier, to advantage defen- dants in making dispositive motions, is unfair, unrelated to any legitimate administrative purpose, and at variance with the Rules. Respectfully submitted, RUFUS KING RUFUS KING, III KING & NEWMYER 910 - 17th Street, N.W. Washington, D.C. 20006 \ (202) 466-5440 Attorneys for Petitioner January 12, 1981 APPENDIX A United States Court of Aupreals FOR THE DISTRICT OF COLUMBIA CIRCUIT No. 79-1085 JAMES W. McCorD, JR., APPELLANT ¥i F. LEE BAILEY, ET AL. Appeal from the United States District Court for the District of Columbia (D.C. Civil No. 74-1888) TS Ce I A at Jucgmayt cxotvored Argued October 17, 1979 this Jato ~“On remand, the district court should conduct a hearing and apply to the facts the law recently laid down by the Supreme Court in Cuylerv. Sullivan, U.S. ___ , 48 U.S.L.W. 4517 (1980). 1. The Cuyler v. Sullivan Test In Cuyler v. Sullivan, a decision of which the district court did not have the benefit, the Supreme Court considered a claim that retained counsel’s conflict of interest violated the client’s Sixth Amendment right to the assistance of counsel. Sullivan sought federal habeas corpus relief from a state ’Hearst’s implausible arguments that Bailey’s book conflict ham- strung his investigation of the Tobin tape issue and influenced him not to pursue a defense based on her involuntary ingestion of hallucinogens were not raised below; we will not consider them on appeal. 7d conviction, whereas Hearst’s conviction was federal; Sul- livan’s lawyer’s conflict was based on multiple representa- tion, whereas Hearst’s was based on private financial interests. These differences are immaterial. We consider the rules laid down in Sullivan to be directly applicable to the present case, and they should govern the case on remand. The Sullivan Court held that counsel’s mere potential conflict of interest does not entitle a convict to relief. “In order to establish a violation of the Sixth Amendment, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.” Jd. at 4521. But “a defendant who Shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to gain relief.” Jd. We read Sullivan to define an actual, as opposed to a potential, conflict as one which in fact adversely affects the lawyer’s performance. But the requirement that the pe- titioner show this adverse effect is not the same as the requirement of Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied, 440 U.S. 974 (1979), that the petitioner show that counsel’s incompetent assistance re- Sulted in actual prejudice. For example, overwhelming evidence of guilt might (as in Cooper itself) make almost impossible a showing that a relatively minor error resulted in actual prejudice. But such evidence would be completely irrelevant to an inquiry whether the same error, if caused by an actual conflict of interest, showed an adverse effect on counsel’s performance. 2. Requirement of a Hearing When a § 2255 motion is made, “‘[u]nless the motion and the files and records of the case conclusively show that the 8d prisoner is entitled to no relief, the court shall... grant a prompt hearing thereon.” 28 U.S.C. §2255. The standard is essentially whether the movant has “‘stated a claim on which relief could be granted,” Moore v. United States, 571 F.2d 179, 184 (3rd Cir. 1978) — or, where affidavits have been submitted, whether summary judgment for the Government is proper. See also Fed. R. Civ. P. 12(b), 56. Under the standard established by the statute and the cases interpreting it, the district court should not have denied Hearst’s conflict- based claims without a hearing. The Ninth Circuit’s rule is that “merely conclusionary statements in a §2255 motion are not enough to require a hearing.” Wagner v. United States, 418 F.2d 618, 621 (9th Cir. 1969). This does not, however, ““mean that the moving party must detail his evidence. It means only that he must make factual allegations, as [movant] has done.” Jd. On the other hand, in certain cases the “factual allega- tions” are so “‘palpably incredible,”’ so “‘patently frivolous or false,” see Blackledge v. Allison, 431 U.S. 63, 76 (1977), that it is clear the movant is not entitled to relief or even toa hearing. ““The court may appraise a petition by what is reasonably credible.’’ Cassidy v. United States, 457 F.2d 813 (9th Cir.) (per curiam), cert. denied, 409 U.S. 1026 (1972). These principles are well illustrated by Machibroda v. United States, 368 U.S. 487 (1962). There, the movant’s § 2255 motion and affidavit made detailed factual allega- tions, which were countered by an affidavit introduced by the Government. The district judge concluded without a hearing that the allegations were false, and denied relief. The Supreme Court vacated and remanded, saying, This was not a case where the issues raised by the motion were conclusively determined either by the motion itself or by the ‘‘files and records”’ in the trial 9d court. The factual allegations contained in the pe- titioner’s motion and affidavit, and put in issue by the affidavit filed with the Government’s response, related primarily to purported occurrences outside the court- room and upon which the record could, therefore, cast no real light. Nor were the circumstances alleged of a kind that the District Judge could completely resolve by drawing upon his own personal knowledge or recol- lection. We cannot agree with the Government that a hearing in this case would be futile because of the apparent lack of any eyewitnesses to the occurrences alleged... “. .. The Government’s contention that his allegations are improbable and unbelievable cannot serve to deny him an opportunity to Support them by evidence. On this record it is his right to be heard.” [Citation. ] There will always be marginal cases, and this case is not far from the line. But the specific and deiailed factual assertions of the petitioner, while improbable, cannot at this juncture be said to be incredible. If the allegations are true, the petitioner is clearly entitled to relief. Accordingly, we think the function of 28 U.S.C. § 2255 can be served in this case only by affording the hearing which its provisions require. Id. at 494-96. In this case, the district court could not properly rely on the apparent regularity of the record and of Bailey’s “tactical” decisions, 466 F. Supp. at 1075, 1083, to “conclusively show” that Hearst was entitled to no relief, because her motion was based on a circumstance, not appearing on the record, that allegedly affected Bailey’s judgment. See Sanders v. United States, 373 U.S. 1, 19-20 (1963) (hearing must be granted on §2255 claim that apparently regular guilty plea was invalid because defendant was under influence of narcotics). Bailey’s potential conflict 10d of interest is virtually admitted, and Hearst has alleged an actual conflict and adverse effect in sufficient and not implausible detail. We conclude that Hearst is entitled to a hearing on the truth of her allegations.‘ 3. Discovery Hearst alleged that Bailey was negotiating with publishers before the trial, when certain challenged decisions were made; she offered to prove it through depositions and discovery from Bailey’s publisher and its editor-in-chief. In §2255 cases, “‘A party may invoke the processes of discovery . . . if, and to the extent that, the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise.” Rule 6 (following $2255); see Argo v. United States, 473 F.2d 1315, 1317 (9th Cir.), cert. denied, 412 U.S. 906 (1973). The district court, because of its belief that Hearst’s § 2255 motion was ‘The Supreme Court has noted that although the standards for disposing without a hearing of habeas corpus petitions by state and federal prisoners are theoretically ‘“‘exactly commensurate,” in practice a motion under §2255 is ordinarily presented to the judge who presided at the original conviction and sentencing of the prisoner. In some cases, the judge’s recollection of the events at issue may enable him summarily to dismiss a § 2255 motion, even though he could not similarly dispose of a habeas corpus petition challenging a state conviction but presenting identical allegations. . . . To this extent, the standard may be administered in a somewhat different fashion. Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977). Since Judge Orrick’s decision to deny a hearing was based on his reading of the trial record, however, not on his personal recollection of the trial, the standard must be administered strictly here. Although Judge Orrick presided at Hearst’s sentencing and considered the §2255 motion which is the subject of this appeal, the late Judge Oliver J. Carter presided at Hearst’s trial. 11d meritless, refused to allow Hearst to take discovery under Rule 6. On remand, the district court should again consider the question of discovery. B. Ingestion of Drugs — Attorney Incompetence The district court correctly found that Hearst had no possibility of demonstrating that Bailey’s representation was incompetent to the extent that he failed to investigate fully the possibility that involuntary ingestion of hallucinogens overcame Hearst’s will. 466 F. Supp. at 1086-87. The only evidence of this ingestion, besides Hearst’s Vague assertion that she had experienced drug-type sensations, was a double hearsay account of Donald DeFreeze’s unfocused statement of future possibilities.* No psychiatric report suggested that hallucinogens had affected Hearst’s behavior, and several psychiatrists told Bailey that the symptoms she reported could have been a normal reaction to light after one has been blindfolded. If this drug defense had been unsuccessfully proffered the credibility of Hearst’s entire defense might have been destroyed. Bailey acted well within the scope of “reasonably competent and effective representation,” Cooper v. Fitzharris, 586 F.2d at 1327, when he devoted his energies to other aspects of Hearst’s defense. Even in the unlikely event that this decision was a mistake, there was stil! no constitutional dereliction. See id. at 1330. C. The Tobin Tape — Attorney Incompetence As the district court found, the record demonstrates that Bailey and his co-counsel made satisfactory, if not brilliant, ‘DeFreeze was a leader of the Symbionese Liberation Army, the group which kidnapped Hearst. 12d investigation and presentation of the facts and law that might have resulted in the suppression of the Tobin tape. 466 F. Supp. at 1078, 1079 n.17, 1086. Thus the court did not err by ruling, without a hearing, that Hearst could not demon- strate that Bailey’s representation on this issue fell below the ‘reasonably competent and effective”’ level. See 586 F.2d at 1327. D. The Tobin Tape — Fourth Amendment Hearst claims that the Tobin tape was the fruit of a Fourth Amendment violation and should have been suppressed. The Government provided her a full and fair opportunity to raise this issue on direct appeal; therefore, it cannot be raised on collateral review. Tisnado v. United States, 547 F.2d 452,456 (9th Cir. 1976); see Stone v. Powell, 428 U.S. 465, 494 (1976). If the provided opportunity has been squandered due to defense counsel’s incompetence or misconduct, a convict’s only option on collateral review is a Sixth Amendment claim based on inadequate assistance of counsel. See Canary v. Bland, 583 F.2d 887, 890 (6th Cir. 1978). We held in Part II.C, supra, that Hearst received adequate assistance of counsel on the Tobin tape issue. E. Pretrial Publicity — Due Process Hearst claims that the huge amount of prejudicial pretrial publicity made it impossible for her to receive the fair trial guaranteed by the Fifth Amendment’s Due Process Clause. Bailey did not make this claim at trial or on direct appeal, nor did he move for a continuance or change of venue to alleviate the problem; instead, he relied on the voir dire to obtain unbiased jurors. The § 2255 court held that this constituted a waiver of Hearst’s due process/fair trial objection, and that no “cause”’ was alleged or “ prejudice’’ shown, see Wain- 13d wright v. Sykes, 433 U.S.72 (1977), tojustify permitting the waived objection to be litigated collaterally. 466 F. Supp. at 1073-76. In federal criminal cases, all defenses and objections based on defects in the institution of the prosecution or non- jurisdictional defects in the indictment or information must be raised before trial, or else are waived ( although ‘“‘the court for cause shown may grant relief from the waiver’’). Fed. R. Crim. P. 12(b)(1)-(2), (f). A waived challenge of the grand jury cannot be litigated collaterally. Davis v. United States, 411 U.S. 233, 242 (1973). Challenges of the petit jury are treated the same as challenges of the grand jury. Shotwell Manufacturing Co. v. United States, 371 U.S. 341, 362 (1963). It follows that Hearst’s due process/fair trial objection was waived. Although Hearst did not explicitly identify Bailey’s con- flict of interest as the “‘cause”’ for the waiver, her allegations that this conflict induced Bailey to fail to move for a continuance or a change of venue sufficiently raised a claim of Sykes and Rule 12(f) ‘‘cause” before the § 2255 district court. But we note that Hearst’s allegations in contentions (A)(1) and (2), that Bailey’s failure to make these motions violated her Sixth Amendment rights, are substantively identical to her allegation of “cause.” If she can establish actual conflict of interest and a Sixth Amendment violation, she establishes “‘cause’’; by the same token, she cannot show “cause” without showing an actual conflict. Once Hearst established an actual conflict of interest with adverse effect on her counsel’s performance, she would be entitled to relief on contentions (A)(1) and (2) even if no prejudice to her chance of acquittal at trial appeared. Therefore, if Hearst is entitled to relief on contentions (A)(1) 14d and (2) she will gain the relief she seeks through contention (E); yet if she is not entitled to relief on the former contentions, she could not be entitled to relief on the latter contention (because she would not have established ‘‘cause’’). Since the district court’s decision on contentions (A)(1) and (2), which we have remanded for a hearing, will effectively moot contention (E), we see no reason to disturb the district court’s decision on that issue. III. Attorney Discipline A. Standards of Conduct Under Federal Rule of Appellate Procedure 46, a Court of Appeals can discipline any attorney who practices before it for “conducting unbecoming a member of the bar.” See In re Chandler, 450 F.2d 813 (9th Cir. 1971). This language is not unconstitutionally vague. It refers to the legal pro- fession’s “‘code of behavior’ and “‘lore,” of which all attorneys are charged with knowledge and of which the American Bar Association Code of Professional Responsi- bility (ABA CPR) is an illustration. Jn re Bithoney, 486 F.2d 319, 324 & n.7 (5th Cir. 1973). In addition, members pro hac vice of the bar of the United States District Court for the Northern District of California are charged with knowledge of the disciplinary rules of the State Bar of California, as well as those of their home jurisdiction. B. Bailey’s Conduct The allegations and admissions in the record of the present case raise serious questions as to whether Bailey and, to the extent of his participation, Johnson have been guilty of conduct unbecoming members of the bar. 1Sd 1. The Book Contract Bailey’s book contract created a potential conflict of interest; this case tests whether it ripened into an actual conflict of interest. Therefore, Bailey may have violated ABA CPR Disciplinary Rule 5-101(A), which reads: Except with the consent of his client after full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property, or personal interests. The obvious reason for this rule is well expressed in ABA CPR Ethical Consideration 5-1: The professional judgment of a lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free of compromising influences and loyalties. Neither his personal interests, the in- terests of other clients, nor the desires of third persons Should be permitted to dilute his loyalty to his client. Bailey’s book contract might not fall within ABA CPR Disciplinary Rule 5-104(b), see infra, because the contract itself was not an acquisition from the client of an interest in publication rights. Nonetheless, Rule 5-104(B) recognizes the dangers inherent in simultaneous lawyering and 16d authoring.® Moreover, all courts before which the issue has been raised have disapproved the practice of attorneys arranging to benefit from the publication of their clients’ stories. See Ray v. Rose, 491 F.2d 285, 289 (6th Cir.), cert. denied, 417 U.S. 936 (1974); Ray v. Rose, 535 F.2d 966, 974 (6th Cir.), cert. denied, 429 U.S. 1026 (1976); Wojtowicz v. United States, 550 F.2d 786, 793 (2d Cir.), cert. denied, 431 U.S. 972 (1977); People v. Corona, 80 Cal. App. 3d 684, 720-21, 727, 145 Cal. Rptr. 894, 915-16, 920 (1978); Maxwell v. Superior Court, 101 Cal. App. 3d 341, ; ; , 161 Cal. Rptr. 849, 854-56, 861 (1980). In light of Rule 5-101(A), Bailey’s decision to enter into a book contract during the course of the trial was most unfortunate. Potential and actual conflicts of interest always bring disrepute upon the bar, the court, and the law. They do so to an even greater degree when the case is a cause celebre This recognition becomes even more explicit in Rule 1.9(d) of the Discussion Draft of the ABA Model Rules of Professional Conduct, reprinted in 48 U.S.L.W., No. 32, at 8 (Feb. 19, 1980): Prior to the conclusion of representation of a client, a lawyer shail not make or negotiate an agreement giving the lawyer literary rights to a matter arising from the representation. The Comment to that proposed Rule reads in part: An agreement by which a lawyer acquires literary rights concerning the subject matter of the representation involves incompatible standards for the lawyer’s performance, one being effectiveness in representing the client and the other being performance that has literary value. Even after conclusion of representation, a lawyer may make use of information about a client in an account of professional experience oily to the extent permitted by Rule 1.7. The proposed Rule, if in effect at the time, would explicitly have prohibited Bailey’s book contract. 17d and the attorney has the reputation of being an outstanding lawyer. Moreover, Bailey is in no position to claim that the book contract was necessary to finance his fee. 2. The Covenant ABA CPR Disciplinary Rule 5-104(B) reads: Prior to conclusion of all aspects of the matter giving rise to his employment, a lawyer shall not enter into any arrangement or understanding with a client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter of his employment or proposed employment. Even though Bailey’s book contract itself technically might not violate this Rule, Hearst’s March 22 covenant to cooperate exclusively with Bailey and not to publish on her own was obtained pursuant to his representation and, we believe, constituted an “‘interest in publication rights.” Although Hearst’s trial had ended on March 22, Bailey’s representation of Hearst had not. He continued to represent her through a motion for new trial, a second motion for new trial, sentencing, a direct appeal to this Court, a petition for rehearing en banc, a petition for certiorari, a motion to vacate a concurrent sentence, and a Rule 35 motion to reduce sentence. Thus, Bailey was apparently in violation of ABA CPR Disciplinary Rule 5-104(B) from March aay 1976, onward. 3. The Fraud on the Client Bailey admits the book contraci; the covenant is in the record. The allegations suggesting fraud are not so well established. However, if proved, they would tend to show that Bailey and Johnson misled Randolph Hearst and appellant regarding the finality of the agreement for a book, 18d the subject of the book, the duration of the covenant, the application of the proceeds, and appellant’s obligation to sign the covenant. The allegations regarding the background, manner and timing of the presentation of the covenant to appellant for signing indicate overreacing. If all this is true, Bailey and Johnson may have violated ABA CPR Disciplinary Rule 1-102(A)(4): A lawyer shall not engage in conduct involving dis- honesty, fraud, deceit, or misrepresentation. Other Disciplinary Rules might also be involved. Attention shoul also be directed to California Rule of Professional Conduct 5-101: A member of the State Bar shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to aclient unless (1) the transaction and terms in which the member of the State Bar acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in manner and terms which should have reasonably been understood by the client, (2) the client is given a reasonable opportunity to seek the advice of inde- pendent counsel of the client’s choice on the trans- action, and (3) the client consents in writing thereto. C. Disciplinary Proceedings We suggest that the district court, on remand, might find it advisable to issue to Bailey (and perhaps to Johnson as well) an order to show cause why he should not be disciplined, on the grounds noted above, in his capacity as a member pro hac vice of the bar of the United States District Court for the Northern District of California.’ "We choose not, at this time, to issue to Bailey an order to show cause why he should not be disciplined by the United States Court of Appeals for the Ninth Circuit. We will await the findings made in the district court’s disciplinary proceedings, and do what appears necessary there- after. 19d IV. Conclusion As to Hearst’s contentions that Bailey suffered from an actual conflict of interest that adversely affected his per- formance, in that it caused him to fail to seek a continuance, to fail to seek a change of venue, and to put Hearst on the witness stand, the district court’s denial of the motion for relief is VACATED, and the case RE- MANDED for reconsideration of Hearst’s discovery re- quest, and for a hearing. As to all other matters, the judgment of the district court is AFFIRMED. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_1137%3A1. Public record. Not legal advice.