Some people think their secrets are safe if they tell them to someone with Esq. after his name. This is not always true. There are exceptions to the attorney-client privilege rule.
One exception found in the American Bar Association Model Rules says an attorney may disclose communications “to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and the lawyers services have been used to accomplish that end.”
The not-so-theoretical question of the day is this:
A commercial real estate broker, Justin Earley of Capital Real Estate Ventures Inc represented the buyer of a property on Garnet where The Estate Sale is located. The owners of The Estate Sale, Mike and Laura, had a right of first refusal to buy the property if there was an accepted offer. James Jordan of Certified Car Care didn’t give Mike notice when Jordan accepted an offer from Vicki Kahia, owner of Kona Coffee in Hillcrest. Justin Earley and Vicki Kahia convinced their insurance companies that the interference with contract was a big mistake, or maybe there wasn’t an interference at all.
The first question, if there was a breach, was decided in binding arbitration. Yes, James Jordan owes Mike and Laura $171,000.
For two years the insurance companies have paid attorneys to represent Earley and Kahia. During this time, Kahia tried like a dickens to evict Mike and Laura from the property. When a judicial eviction didn’t work, she, with Earley’s help, made complaints about building code violations to The City of San Diego. These alleged violations were all happening when Kahia bought the property. She got an extra $30,000 from the FDIC insured bank (it was a short-sale) to cure the problems herself, but she did none of the rehabilitation.
When complaints to Neighborhood Code Enforcement failed to scare Mike away, Kahia and Earley allegedly engaged another tenant on the property to harass Mike and Laura. The tenant filed bogus lawsuits an made false reports to the police against Mike. One lawsuit is Justin Cannatella v. Laura Lynn, et al. The tenant blocked a display area for The Estate Sale with his BMW and van, even though there was plenty of other parking for him. Laura alleges that is a violation of Penal Code 602(k), and Earley ‘s involvement is criminal conspiracy. Cannatella got a restraining order against Laura and Mike, with Earley testifying on his behalf. Laura alleges Earley committed perjury.
And all the while, Earley’s lawyer, Chris Connolly, did nothing to settle the supposedly unintentional part of the claim, the interference with contract, and allowed the damages to Mike and Laura’s property and personal safety escalate.
Kahia’s attorney, Ryan Fick sent a letter to Kahia that said Earley was not managing the property properly. Kahia decided to show that letter to Earley, who showed it to The City of San Diego, who showed it to Mike and Laura. Kahia waived her right to Attorney-Client privilege.
Last night, Connolly did one of those oops moves and hit “reply all” instead of “reply” when he sent a short email to Earley. The email said “I thought u were gonna refrain”. Connolly was discussing an email from Laura that said new tenants, Michael Clemens and Garry Hogenbirk were joining the conspiracy to interfere with Mike and Laura’s property rights and to inflict severe emotional distress. Apparently Connolly had already counseled Earley to knock it off and his client decided not to comply.
Then Connolly didn’t leave it alone. He would probably not be in any trouble for disclosing a communication meant to deter his client from committing any further crime or fraud. Instead Connolly wrote the following email to Laura:
Responding to your vitriol and efforts to intimidate are of no consequence.
I have refrained from responding to your acidic emails and threats, as it is clear you relish in any response.
Mr. Earley, on behalf of Judd, Inc., as property manger(sic) , is obligated to respond to your caustic communications.
In retrospect, his last communication to you was both responsive, appropriate and necessary.
If you are unclear as to the scope of Restraining Order, I suggest you go back to the judge and inquire.
My email inadvertently included everyone. However, I ask you to refrain from the nature and content of your latest communications.
As we recently discussed on the phone, lets get this matter to trial and move on.
What did Earley write that Connolly found to be “appropriate and necessary”?:
Justin Cannatella is the tenant at 2950 Garnet.
You do not control any of the driveway or parking areas for any reason whatsoever. This has been well established and documented by City code enforcement via the violations they issued to you for using the parking lot as a display area and in the restraining order issued against you which states you are not to harass Justin Cannatella either directly or indirectly.
You have already attempted this ruse about controlling the west side of the parking area. Please stop.
Cannatella wrote a complaint under penalty of perjury that said he was out of business because of Mike and Laura. He also had an advertisement to sell his business on the internet that said he was selling to pursue other businesses. He also took out a fictitious business license in June to operate an auto dealership.
Michael Clemens said he and Hogenbirk bought Canatella’s inventory and they were advertising on the internet that they were opening a sporting goods store.
What it looks like to Mike and Laura is that Earley and Kahia thought they found a judge who would give them anything they asked for in the eviction case, and they thought they would finally get Mike and Laura off the property, so Cannatella would open an auto dealership, maybe with Jordan as a silent partner, and Clemens and Hogenbirk would open their sporting good store and Mike and Laura would be plum out of luck.
Earley once again told Mike and Laura that their rights to the property that were well established before the interference with contract are taken from them, and Connolly thought that was appropriate and necessary.
Connolly was better off listening to Earley tantrum and telling Earley that he would no longer ignore crimes and fraud on the court that are reasonably certain to result in substantial injury to the financial interests or property of another and his services have been used to accomplish that end.