What's New

ATTENTION - NEW RULES OF PROFESSIONAL CONDUCT

The California Supreme Court has approved a complete revision of the Rules of Professional Conduct, effective November 1, 2018.

A searchable copy can be downloaded from here.

http://www.calbar.ca.gov/Portals/0/documents/Supreme%20Court%20Order%202018-05-09.pdf

Current and pending cases in various courts that may affect you or your client.

ATTORNEY DISCIPLINE CASES

Reported cases of the California Supreme Court and the Review Department of the State Bar Court.

Matter of Collins

Review Department, State Bar Court
Filed: 03/28/18

Plaintiff served discovery, then motions to compel, on Collins's client Caverly. Collins was not mentioned in the motions but was ordered jointly and severally with Caverly to pay the sanctions. Neither of them did. Held, that was a violation of court order under Bus & Prof 6103. He was served with all five orders and was aware of them. He had the opportunity to challenge them in Superior Court and will thus not be permitted to mount a collateral challenge in the disciplinary case. Violation of a court order is serious. Discipline Standard 2.12(a) calls for disbarment or actual suspension. Collins is thus suspended for 30 days, the lowest level under the standard.

Matter of Peters

Review Department, State Bar Court
Filed:  01/29/18

Peters was convicted of felony vehicular manslaughter, while intoxicated, without gross negligence, on a plea of nolo contendere. A felony conviction with moral turpitude presumptively results in disbarment. Her mitigation was not sufficiently compelling to overcome disbarment. This is a good survey case for moral turpitude, and weighing aggravation vs mitigation.

Tag: Level of Discipline

Matter of MacKenzie

Review Department, State Bar Court
Filed: 11/06/17

A candidate for reinstatement must reimburse the Client Security Fund prior to filing the Petition.

Tag: Reinstatement, Client Security Fund

Matter of Moriarty

Review Department, State Bar Court
Filed: 04/20/17

The State Bar Court of California recommended Leo Moriarty, an attorney, be disbarred from the practice of law. This was the respondent's third disciplinary proceeding. A hearing judge found him culpable of Moral Turpitude for: (1) failing to correct a misrepresentation to an admin tribunal; and (2) intentionally making a false representation to an admin tribunal.

The Review Department held that attorneys who appear before an ALJ are practicing law. Moriarty committed 2 acts of Moral Turpitude for lying to a judge or asking his assistant to lie for him. He knew the statement was false, but made no effort to correct the record, he thus violated his ethical duty.

Tag: Duty to correct mistake

Matter of Unger

Review Department, State Bar Court
Filed: 03/17/17

Unger filed a petition for reinstatement as an attorney. Under CRC 9.10(f), the petition must be filed within three years after he has "taken and passed" the attorney bar exam. His petition was filed within three years of passing, but not within three years of taking. Held, the trigger date is passing.

Tag: Reinstatement

RECENT APPELLATE CASES

Sheppard Mullin v J-M Manufacturing

Cal Supreme Court
Filed: 08/30/18

When la aw firm has an actual conflict of interest with a client, the client can ask the court to declare the fee agreement invalid. The law firm can still seek quantum meruit. The client can request total or partial fee disgorgement as a matter of equity, but the remedy is not automatic.

Tag: Quantum Meruit; fee forfeiture

Monster Energy Co v Schechter

Cal Court of Appeal
Filed: 08/13/18

The settlement agreement had several clauses binding the parties and their attorneys. The attorney signed approval as to form and content. Held, that is not enough to make the attorney a party to the contract. There are ways to do so, but this wasn't it. Anti Slapp motion granted to attorney Schechter against opposing party Monster.

Tag: Liability to third parties

Fritsch v Swift Transportation

Ninth Circuit
Filed: 08/08/18

Fritsch filed a wage and hour matter against Swift, which included a class action request. Swift removed the case to Federal Court and invoked 28 USC 1332, et seq, the Federal Class Action Fairness Act. One of the criteria is that the case must have a value of $5,000,000 or more. That value would necessarily include potential attorney fees for the defense.

Tag: Court award of attorney fees

Knutson v Foster

Cal Court of Appeal
Filed;  08/08/18

Knutson employed attorney Foster to make claims regarding promises made by Schubert to help Knutson in her professional swimming career. She alleged fraudulent concealment, on the grounds that Foster did not inform her of the relationships he had within the swimming community, and that he acted adversely to her because of those relationships. Causation for fraudulent concealment should be proven to the "substantial factor" standard, not the "but for" standard.

Tag:  Legal Malpractice

Nishiki v Danko

Cal Court of Appeal
Filed: 08/01/18

Nishiki resigned from her job and asked for her accrued vacation pay. The employer's check was defective due to a clerical error, so proper payment was delayed for 17 days. The Labor Commissioner awarded waiting time penalties under Lab C 203 for the full 17 days. The employer sought trial de novo in Superior Court and lost there too. The Court of Appeal ruled that the first 8 days were not "willful" under the code, so the employee was only entitled to 9 days waiting time penalty. However, under the Labor Code, the employee is entitled to all of her attorney fees if the employee wins any sum of money. This is a "fee shifting statute, not a "prevailing party" statute. In this case, the court had sufficient evidence to award $500/hr, which is well within the market rate in San Mateo County.

Tag: Court award of attorney fees.

USA v Turner

Ninth Circuit
Filed: 07/27/18

Turner was able to postpone his trial several times, as he alternated between being represented by private counsel and court appointed counsel; being pro per; and being pro per with court appointed counsel to advise him. Thus, when he sought an 8th continuance to employ counsel, the court had the discretion to deny the request.

Tag: Court appointed counsel

National Conference of Black Mayors v Chico Community Publishing

Cal Court of Appeal
Filed: 07/25/18

The Publishing Company sought documents from the City of Sacramento under the California Public Records Act. The City released 900 pages of documents but disclosed that it had several documents that appeared to be attorney client communications between the Mayor, who was president of the National Conference, and the attorneys for the conference. The City further notified the parties that the City would release the documents. So the Conference and the Mayor filed for a writ of mandate to prevent release of the documents. The law firm produced a privilege log of those documents it believed were privileged. The court eventually upheld the withholding of 38 documents. Since this was an action to prevent disclosure, the newspaper is not entitled to attorney fees under the CPRA.

Tag: Court award of attorney fees

In Re Wrightwood Guest Ranch

Ninth Circuit
Filed: 07/25/18

The trustee and largest claimant reached a settlement that included payment of $150,000 to unsecured creditors. The creditors committee objected. The Judge upheld the settlement. The committee's attorneys appealed. Denied; they did not specifically object on their own account and thus lack standing to appeal.

Tag: Court award of attorney fees

Fluidmaster v Firemans Fund

Cal Court of Appeal
Filed: 06/26/18 Ordered published on 7/24/18

Fluidmaster employed E-STET to assist with discovery. Attorney Pollock worked for E-STET. She twice changed employment and wound up at the Crowell firm, which represented Fireman's Fund. Crowell established an ethical wall. The trial court recognized the Kirk doctrine, that vicarious disqualification is not automatic in California; and further, that an ethical wall may defeat disqualification - but nevertheless disqualified Crowell. Fireman's Fund and Crowell appealed. Pollock then left Crowell. Under Kirk, once the vicariously tainted attorney leaves, the law firm can try to prove that she never had actual knowledge of confidential information, rather than the automatic presumption.

Tag: Disqualification

Glacier Films v Turchin

Ninth Circuit
Filed: 07/24/18

Glacier Films sued Turchin for copyright infringement. Turchin ultimately stipulated to a judgment for statutory damages, an injunction against doing it again, and an agreement to try to retrieve and destroy copies of a film he sold to third parties. The Court made an award of attorney fees. It was excessive, because the court considered similar behavior by other infringers, and actions taken by Turchin's attorney in other cases.

Tag: Court Award of Attorney Fees

People v Torres

Cal Court of Appeal
Filed: 07/12/18

Trial counsel was ineffective for not bringing a motion to suppress Torres's confession. While he had not been placed under arrest, he was interviewed in a police car and told that they would not let him go home until he told the truth about evidence they claimed was in the trunk of the car.

Tag: Ineffective Assistance of Counsel

White v Ryan (Warden)

Ninth Circuit
Filed: 07/11/18

White was convicted of murdering his lover's husband. The sole factor in aggravation was a holding that he committed the murder for financial gain. In this habeas corpus proceeding, his attorney mistakenly believed that he could not attack the financial gain aspect of the conviction by offering evidence that the murder was out of love for the woman. Habeas counsel did not develop evidence of mitigation that was not offered at trial, to include mental illness and neurological defects. Such was ineffective assistance of counsel.

Tag: Ineffective Assistance of Counsel

Fisher v State Personnel Board

Cal Court of Appeal
Modification Filed: 07/06/18

Fisher was an ALJ with the SPB, and became "of counsel" to the Simas law firm, which firm represents parties before the SPB. The law firm job was incompatible with his ALJ job and thus violated Gov C 19990. His dismissal as ALJ is thus upheld.

Tag: Conflict of Interest

Hassell v Bird

Cal Supreme Court
Filed: 07/02/18

Attorney Hassell obtained a default defamation judgment against former client Bird for comments made on Yelp. The court granted an injunction requiring Bird to withdraw the comments. The inijunction also ordered non-party Yelp to remove it. Yelp appeals. The plurality opinion reasons that order directed to Yelp violates 47 USC 230, which prohibits any cause of action or liability for the posts of its customers. It does not matter that Yelp was not a defendant, even though a non-party can be required to comply with an injunction. Hassell cannot obtain her results indirectly. The concurring opinion reasons that Yelp was not a party and is entitled to litigate the issue. Two dissenting opinions reason that the immunity under 47 USC 230 only protects defendants from liability, not from helping a court effect its judgment.

Tag: Social Media

McNair v Maxwell & Morgan

Ninth Circuit
Filed:  06/25/18

M&M is a law firm that has secured a judgment for a Home Owners Association against member McNair. In seeking a writ to enforce the judgment, M&M recited that attorney fees of $1,687.50 and $1,597.50 are now due. Such was a misleading statement under the Fair Debt Collections Practices Act, because M&M had not yet secured a court award of fees required by law. Thus, McNair is entitled to a hearing on the amount of statutory damages she is entitled to under FDCPA.

Tag: Court award of attorney fees

Vogel v Harbor Plaza

Ninth Circuit
Filed: 06/25/18

Plaintiff won an ADA action in a default proceeding. Plaintiff sought an award of reasonable fees. Instead, the court used its schedule of default attorney fees, treating the schedule as presumptive reasonable. Reversed. If an ADA litigant rejects the schedule, the court should begin with the lodestar, and then make appropriate adjustments.

Tag: Court award of attorney fees

Shame On You Productions (SOYP) v Banks

Ninth Circuit
Filed: 06/21/18

SOYP claimed that defendants' movie Walk of Shame infringed on SOYP's screenplay Darci's Walk of Shame. Defendant prevailed. The Court exercised discretion and granted full attorney fees and costs to defendants. It followed the correct test, giving substantial weight to the losing party's litigation position, but also considering the degree of success, frivolousness, motivation, and the need to deter behavior of the defendant in the future. Of note are legal principles that reach all court awards of attorney fees. Losing legal arguments are not per se unreasonable. Redacted entries are ok as long as the judge can still evaluate the appropriateness of the work.

Tag: Court award of attorney fees

Kaura v Stablis Fund

Cal Court of Appeal
Filed: 06/13/18

Stablis foreclosed on a deed of trust on an apartment complex. A receiver was appointed. The City of Indio intervened in the action, alleging that the property was a public nuisance. The City's intervention in an existing receivership action is governed by CCP 568.3, as contrasted to the City's ability to obtain a receivership in an original action against the owner under H&S 17980. There is no right to attorney fees in the intervention action.

Tag: Court award of attorney fees

Lamar Archer v Appling

US Supreme Court
Filed: 06/04/18

The law firm of Lamar Archer threatened to withdraw from representing Appling, who persuaded the law firm to remain by promising to turn over his tax refund to them when it came in. Twice. Instead, it spent the refund on something else. The statements were respecting his financial condition. Thus, since they were not made in writing, the debt to the law firm is dischargeable.

Tag: Attorney fees

Moofly Productions v Favila

Cal Court of Appeal

Filed: 06/01/18
Published: 06/22/18

A motion for reconsideration that is frivolous under CCP 1008 is still subject to the safe harbor provision of CCP 128.7 before attorney fees can be awarded.

Tag: Court award of attorney fees

People v Olvera

Cal Court of Appeal
Filed: 06/28/18

Defendant moves to set aside his plea of no contest, alleging that defense counsel failed to advise him of the immigration consequence of the plea. However, the written plea form he signed warned him that deportation was a possible consequence. Thus, there was no ineffective assistance of counsel.

Tag: Ineffective Assistance of Counsel

Abbot Laboratories v Superior Court

Cal Court of Appeal
Filed:  05/31/18

Orange County DA filed UCL case against several pharmaceutical firms on behalf of all California residents. Reversed; DA can only file suit pertaining to his own county. A suit on behalf of all state residents would be properly brought by the Attorney General

Tag: Power of District Attorney

People v Hardy

Cal Supreme Court
Filed: 05/31/18

Death penalty appeal. DA exercised peremptory challenges on one Black juror. The DA's reasons were plausible, and in most cases supported by the record. The juror seemed to be disposed against prosecutors, has been arrested once, and opposes Life Without Parole. No Batson violation.

Tag: Batson/Wheeler

Morgan v Superior Court

Cal Court of Appeal
Filed: 05/29/18

Prior trustee refused to turn over attorney client communications to successor trustee, in accord with a specific clause in the trust. Such clause violates public policy and is therefore invalid.

Tag: Attorney client privilege

People v Smith

Cal Supreme Court
Filed: 05/21/18

The DA used peremptory challenges to excuse 3 Black jurors. His explanation for each of them was that they were concerned about the OJ Simpson case, coupled with statements that indicated each would require more proof than "beyond a reasonable doubt" to impose the death penalty. Conviction upheld

Tag: Batson/Wheeler

Yeager v Holt

Cal Court of Appeal
Filed: 05/16/18

Holt obtained a judgment for unpaid attorney fees against the Yeagers. They in turn file a new lawsuit against him for legal malpractice. Anti-SLAPP motion denied. Even though Yeager's could have alleged malpractice as an affirmative defense or cross complaint in the first lawsuit, the law does not require them to do so.

Tag: SLAPP

McCoy v Louisiana

US Supreme Court
Filed: 05/14/18

During oral argument, over client objections, attorney conceded that McCoy had murdered several family members. Attorney's strategy was to save client from execution. New trial granted. Under the Sixth Amendment, the attorney provides assistance of counsel and does not take over all decision making. Certain decisions are reserved to the client - whether to plead guilty, whether to waive jury trials, whether to testify, whether to appeal - and whether to assert innocence

Tag: Allocation of attorney client authority

Brown v Muniz (Warden)

Ninth Circuit,
Filed: 05/08/18

Brown seeks permission to file a second Habeas Corpus case under AEDPA. Denied. Brown was convicted of conspiracy of the attempted murder of Williams. Several years after the conviction and the first Habeas case, the DA released information that two of the officers involved in the Brown case had been involved in similar cases in the past. The three officers were only involved tangentially in Brown's case, and there is nothing in the previously undisclosed evidence that would have resulted in a not guilty verdict.

Tag: Prosecutor Misconduct

Solorio v Muniz (Warden)

Ninth Circuit
Filed: 05/08/18

Solorio seeks permission to file a second Habeas Corpus case under AEDPA. Denied. He knew there was a videotape interview of a witness but did not ask for a copy. He thus did not exercise diligence.

Tag: Prosecutor Misconduct; Brady

People v Douglas

Cal Court of Appeal
Filed: 05/03/18

D.A. used peremptory challenges against the only two openly gay men on the jury venire. The D.A.' s explanation was mixed, showing bias against gay jurors but also arguably facially valid reasons too. Held (1) sexual orientation is a protected status under Batson & Wheeler; and (2) this court will not recognize the mixed motive analysis. The bias against a juror's sexual orientation requires reversal.

Tag: Batson/Wheeler

Magana v Superior Court

Cal Court of Appeal
Filed: 04/27/18

Defense counsel missed court appearances, showed up late for others, made arguments unsupported by evidence, and indicated that he was doing everything to delay the trial so his client could perhaps do better. That was enough to remove him as counsel, a power that trial judges should use only sparingly.

Tag: Ineffective Assistance of Counsel

Glaviano v Sacramento USD

Cal Court of Appeal
Filed: 04/26/18

SUSD put Glaviano on unpaid leave indicating that it would suspend or fire Glaviano after he interceded in a fight between two students. The Commission on Professional Competence dismissed the accusation. He sought attorney fees under Educ C 44944. He indicted that his attorney charged him at a reduced rate, which he declined to reveal. The Commission refused to order fees. Reversed. Under that code section, he is entitled to a reasonable attorney fee, and the rate his attorney charged him - even if gratis - is irrelevant to the award. The amount is what private attorneys in the community would charge for non-contingent litigation of the same type.

Tag: Court Award of Attorney Fees

Baker Marquart LLP v Kantor

Cal Court of Appeal
Filed: 04/25/18

Former client Kantor sought to reduce Baker's attorney fees due to alleged failure to complete certain tasks within an agreed upon timeframe. In the arbitration, the panel permitted Kantor to submit a brief that was not disclosed to Baker. Kantor was thus permitted to argue claims that were not in the arbitration demand, and which the law firm had no meaningful opportunity to respond. The test for vacating an arbitration award under CCP 1286.2 is "corruption, fraud or other undue means." This qualified as "undue means" and the award is thus vacated.

Tag: Arbitration

People v Investco Management

Cal Court of Appeal
Filed: 04/18/18

The Commissioner of the Department of Business Oversight (DBO) sued Investco for securities fraud. Defendants stipulated to an injunction and to the sale of properties under its control. Investco then sought an injunction to stay all individual actions. Two respondents objected. As a result, the defendants were removed from any control over the funds, and private parties could proceed against one of the two LLC's involved. Held, that's sufficient for an attorney fee award to respondents' attorneys under CCP 1021.5. They were successful parties and enforced an important public right.

Tag: Court Award of Attorney Fees

People v McDaniels

Cal Court of Appeal
Filed: 04/17/18

The prosecutor argued in rebuttal that the defense failed to produce any evidence that anyone other than McDaniels could have committed the murder. McDaniels contends that the argument was an indirect comment on his failure to testify, thus error under Griffin. The state of the evidence was such that his girlfriend or mother were likely alibi witnesses, so the argument was valid.

Tag Prosecutor Misconduct

Shapira v Lifetech

Cal Court of Appeal
Filed: 04/17/18

Shapira asked the Court to dismiss his wrongful termination case under CCP 581(e). The motion was made before post trial briefs were filed. Judge refused to dismiss, rendered judgment of Lifetch, and ordered Shapira to pay attorney fees under CCP 1717. Reversed. Case had not yet been dismissed, and Judge had not indicated a likely outcome. Thus, Shapira was entitled to dismiss and avoid attorney fees.

Tag - Court Award of Attorney Fees

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NEW RULES, STATUTES ON ATTORNEY PROFESSIONAL RESPONSIBILITY

ATTENTION - NEW RULES OF PROFESSIONAL CONDUCT

The California Supreme Court has approved a complete revision of the Rules of Professional Conduct, effective November 1, 2018.

A searchable copy can be downloaded from

http://www.calbar.ca.gov/Portals/0/documents/Supreme%20Court%20Order%202018-05-09.pdf


Bus & Prof 6056 amends the State Bar Act to set up a non profit corporation that house sections and committees.

Bus & Prof 6060.2(b)(2). Moral Character applications and investigations are confidential, but information may now be provided to any government entity enforcing civil or criminal laws, or professional licensing investigations.

Bus & Prof 6060.25. Aggregate personal data about Bar applicants can be revealed, but not information that would identify any individuals.

Bus & Prof 6074. The State Bar must administer a program to coordinate pro bono legal assistance to veterans and their families who cannot otherwise afford legal services.

CCP 222.5. Attorneys have a right to conduct voir dire. Courts may no longer set arbitrary or unreasonable time limits on voir dire.

CRC Rule 3.36, establishes rules for withdrawal from limited representation when client won't sub you out, including an expedited procedure when the motion is uncontested.

CRC Rule 9.9.5 requires State Bar to set up process to fingerprint all active members by December 1, 2019.  This will include Registered In-House Counsel but not inactive members.

Evid Code §956(b)  The crime fraud exception to the attorney client privilege does not apply to advice given about medicinal or adult-use cannabis, as long as the attorney warns the client about conflicts between state and federal law.

Rule 253, Rules of the State Bar. A new attorney must complete the State Bar New Attorney Training Program within the first year after admission.

Penal Code Sections 987.8 and 987.81 of the Penal Code eliminate the fee for court-appointed counsel in cases that do not result in conviction for a felony or a misdemeanor. At a preliminary hearing, the Court may impose a lien on any real property owned by defendant.

Probate Code Sections 21380, 21384, 21386 and 21392 regarding presumptive disqualification of donative transfers to certain classes of individuals where fraud or undue influence is likely.

Welf & I 625.6. A youth who is 15 or under must actually consult with counsel prior to a custodial interrogation.

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OTHER NOTABLE MATTERS

When an attorney has an actual conflict of interest with the client, the client can seek to invalidate the contract. If successful, the law firm can still seek quantum meruit. The client can ask for total fee disgorgement, but such is an equitable remedy, so disgorgement is neither automatic nor automatically total. Sheppard Mullin v J-M Manufacturing, California Supreme Court filed 8/30/18. BTW, if the contract is invalid, so is its arbitration clause. But the contract might be relevant to the value of QM. The Supreme Court declined to rule on the validity of advance waivers generally, since there was an undisclosed conflict at the beginning.

An ethical wall can be effective in preventing vicarious disqualification, which is not automatic. The criteria for measuring the strength of that ethical wall is at Fluidmaster v Fireman's Fund (filed 6/26/18) ___ Cal App 5th ___ , 2018 WL 3545109.

In granting a court award of attorney fees, the court may award fees for time spent on losing motions. The court may consider redacted entries, as long as there is enough information left to show the appropriateness of the work. Shame On You Productions v Banks (9th Cir 2018) 893 F 3rd 661.

When a Court of Appeal upholds a trial court decision on one issue, there is no automatic issue preclusion on other issues not ruled upon by the Court of Appeal. Samara v Matar (2018) 5 Cal 5th 322. This opinion overruled a 19th Century case called Skidmore, and modernizes the principles of claim preclusion (formerly known as res judicata) and issue preclusion (formerly known as collateral estoppel).

The State Bar Court Review Department has determined that Alkow v State Bar, a 1966 Supreme Court case imposing a 6-month suspension for a fatal collision, is no longer good law. Matter of Peters (2018) 5 Cal State Bar Court Reporter ____, 2018 WL 583118. In addition, the case shows how the State Bar Court balances a felony conviction, a finding of moral turpitude, aggravation, and mitigation, to reach a given level of discipline

An expert is required to lodge relevant materials 3 days before his or her deposition. CCP 2034.415

Before filing a demurrer, the demurring party has to meet and confer with the opposing counsel and identify deficiencies. CCP 430.41. The complaint may be amended until the date for filing an opposition has passed. CCP 472(a).

A party's qualified denial of RFA's is not admissible at trial. Gonsalves v Li (2015)232 Cal. App. 4th 1406.

A dispute between a party and a subpoenaed third party witness is subject to meet and confer, and thus sanctions, under CCP 1987.2. Evilsizor v Sweeney (2014) 230 Cal App 4th 1304.

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