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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 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

NS vs DM

Cal Court of Appeal
Filed: 03/28/18

Parents split up and mom moves from Illinois to California. Dad files two actions in Illinois pertaining to custody. California and Illinois courts decide that proper jurisdiction under UCCJEA is in California. Mom seeks fees and costs from Dad. She is not entitled to them under Fam C 3452 (UCCJEA). She may be entitled to them under Fam C 7605, if she can show sufficient disparity in income and needs.

Austin v Medicis

Cal Court of Appeal
Filed: 03/21/18

A prison inmate's right to file a civil lawsuit is tolled while the inmate is imprisoned, for a period up to two years. That tolling applies to a legal malpractice case. However, the statute only applies to time served in state prison for a criminal conviction. Thus, the time served in County Jail while awaiting trial does not count for tolling purposes.

Tag: Legal Malpractice

People v Arredondo

Cal Court of Appeal
Filed: 03/19/18

In a death penalty case, defense counsel conceded his client's guilt. The U.S. Supreme Court, in an unrelated case, ruled that an attorney may not do so absent client consent (McCoy v Louisiana, filed 5-14-18)

Tag: Ineffective Assistance of Counsel.

American Bankers v Heryford

Ninth Circuit
Filed: 03/15/18

The District Attorney of Trinity County (Heryford) employed private counsel on a contingency basis to litigate an unfair competition case against American Bankers. Those private firms were co-counsel with Heryford, who retained the right to litigate or settle the case, and to supervise the work of private counsel. This is a case of first impression before a federal court of appeal, and this circuit approves the propriety of the public entity using private counsel for this sort of suit.

Tag: Private contingency attorney for public lawsuit

Ponce v Wells Fargo Bank

Cal Court of Appeal
Filed: 03/13/18

Wells Fargo secured sanctions under CCP 128.7, on a finding that their claims were frivolous and presented for an improper purpose. In the context of a loan modification lawsuit, the argument at trial that Wells Fargo was not a predecessor in interest was not frivolous, successful or not. Thus sanctions against Ponce and Ponce's attorney were reversed.

Tag: Sanctions

Dean v Friends of Pine Meadow

Cal Court of Appeal
Filed: 03/08/18

Dean sought to develop real property in Martinez. The Friends opposed the development. Dean sued Friends and its attorneys, alleging various causes of action. In response to the anti-SLAPP motion, Dean asserted that the defendants were engaged in commercial speech, and that commercial speech was not protected by the anti-SLAPP action. Wrong on both counts. The basic activity was opposition to Dean's development in front of various government entities, which is not "commercial speech." Second, anti-SLAPP motions cannot be used in some commercial speech actions, but generally speaking, those involving unfair competition or fraud.

Tag: SLAPP

Heller Ehrman v Davis Wright

Cal Supreme Court
Filed:  03/05/18

When a law firm dissolves, the dissolved law firm has no rights to profits earned by its former partners' work at the new law firm. The dissolved law firm has a right to amounts earned prior to dissolution, and amounts earned in accomplishing the transfer of the client matter to the new law firm.

California DUI Lawyers Assoc. v Cal DMV

Cal Court of Appeal
Filed: 03/02/18

CDLA alleges that DMV hearing officers act as both prosecutors and adjudicators in DMV hearings on whether a driver's license should be suspended when a person is arrested for a DUI. The trial court ruled that CDLA did not have standing to bring the suit. Reversed.

Tag: Prosecutor Misconduct

People v Perez

Cal Supreme Court
Filed: 03/01/18

Attorney Egan represented Perez in trial before Judge Spinetta. In an earlier case unrelated to Perez, Judge Spinetta had ruled that Egan was ineffective in the Eldridge case. Eldridge was on appeal when Perez began. The Court of Appeal upheld the IAC finding in Eldridge. The Eldridge matter did not create a conflict of interest for Egan in the Perez matter.

Tag: Ineffective Assistance of Counsel

Herterich v Peltner

Cal Court of Appeal
Filed: 03/01/18

In the Estate of Barsch, Herterich claimed to be a pretermitted heir. The Court ruled against him. In this case, Herterich accuses the executor and executor's attorney of perjury in the earlier proceeding. If so, the alleged representations were subject to the litigation privilege. The issue should have been raised in the earlier case and cannot be the subject of this new case.

Tag: Litigation Privilege

CA Self-Insurers' Security Fund v Superior Court

Cal Court of Appeal
Filed: 01/26/18

This case involves an alleged conflict of interest due to which the Court erroneously found that disqualification was mandatory because an attorney had switched sides. However, under Kirk v. First American Title Insurance, if evidence established that no one other than an attorney that departed from a firm had any dealings with or obtained confidential information, vicarious disqualification was not mandatory. Remanded to trial court for reevaluation.

Tag: Disqualification

Bustos v. Global P.E.T., Inc.

Cal Court of Appeal
Filed: 01/17/18

Plaintiff Bustos brought a disability discrimination action against his employer, Global P.E.T. The jury returned defense verdicts on each of his claims. He nonetheless sought attorneys fees under FEHA, Govt. Code Sections 12900 et seq., that "a plaintiff subject to an adverse employment decision...may be eligible for reasonable...fees and costs." The Court was within discretion to deny fees and costs where jury found against plaintiff on all counts.

Tag: Court Award of Attorney Fees

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NEW RULES, STATUTES ON ATTORNEY PROFESSIONAL RESPONSIBILITY

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 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 5-110 [Special Responsibilities of a Prosecutor]  The principles regarding prosecutor duties to disclose information and evidence have been rewritten twice in 2017.

SB 2.53(D)  A new attorney must complete the State Bar New Attorney Training Program within the first year after admission.

SB 36 amends the State Bar Act to set up a non profit corporation that house sections and committees.

SB153 amends Sections 21380, 21384, 21386 and 21392 of the Probate Code regarding presumptive disqualification of donative transfers to certain classes of individuals where fraud or undue influence is likely.

SB 355 amends Section 987.8 and 987.81 of the Penal Code, to 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.

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

Matter of Peters

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

This case shows how the Court balances a felony conviction, a finding of moral turpitude, aggravation, and mitigation. Lost in the shuffle is the holding that Alkow v State Bar, a 1966 Supreme Court case imposing a 6-month suspension for a fatal collision, is no longer good law.

The California Supreme Court has issued its second 2017 revision to Rule 5-110 [Special Responsibilities of a Prosecutor] of the Rules of Professional Conduct of the State Bar of California. The current changes rewrite the disclosure obligations of prosecutors regarding exculpatory evidence or information.

The State Bar has updated Rule 5-110 on the State Bar's website.

New CCP 2034.415, effective January 1, 2017, requires an expert to lodge relevant materials 3 days before his deposition.

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. This is a case of first impression. Gonsalves v Li, 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 230 Cal App 4th 1304

Rule 9.4 of the California Rules of Court now adds to the attorney oath, "As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity."

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