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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 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

Matter of Schooler

Review Department, State Bar Court
Filed: 12/06/16

The State Bar Court's Review Department recommended that Jane Schooler, an inactive member of the State Bar be disbarred. Schooler was the trustee of her family's trust and personal representative of her mother's estate. Her breaches of duty included evicting her brother from trust property, then occupying it herself while using trust monies to improve the property. She lied when she stated she paid rent to the trust. She made disbursements to herself but not to her siblings. She was eventually removed as executor and trustee but failed to turn over records to her successor. She filed several appeals, some of which were deemed frivolous.

As a fiduciary, she was required to conform to attorney ethical standards. If she could be disciplined as an attorney for her conduct, she can be disciplined for violations of her fiduciary duties. Alleged reliance on advice of counsel is not a defense.

Tag: Discipline for violation of fiduciary duties

Matter of Murray

Review Department, State Bar Court
Filed: 11/10/16

Deputy DA provides defense with an altered transcript of police interview with defendant. Court rejects claim that it was a prank, increases recommended level of discipline to one-year actual suspension. Court also finds that the behavior was intentional. The intentional behavior was part of the disciplinary offense, so it cannot also be used as a factor in aggravation.

Tag: Prosecutor Misconduct
Tag: Level of Discipline

Matter of Hansen

State Bar Court Review Department
Filed: 09/14/16

Hansen made several misrepresentations to the WCAB, essentially avoiding disclosure of her own mistakes while seeking relief from the board. This might be disbarment case, since it's a third offense. However, the misconduct occurred before the other two cases, so she will be suspended for 18 months instead.

Tag: Misrepresentation

Matter of Burke

State Bar Court Review Department
Filed: 06/03/16

While under an administrative suspension for failure to pay child support, Burke signed responses to Rogs and appeared at a CMC. During the CMC, the Judge informed him that he was under suspension. He also committed UPL in four other matters. This is his third disciplinary case, showing moral turpitude in the UPL matters, and failure to obey a court order. Disbarred.

Tag: UPL

Matter of DeClue

State Bar Court Review Department
Filed: 05/10/16

DeClue employed support staff with knowledge that the staff had committed UPL for several years for several different attorneys. He failed to supervise their work and they committed more UPL. He is responsible for the ethical breaches they committed on his watch. Recommendation: he should be actually suspended for six months, "and until" he makes specified restitution.

Tag: UPL

Matter of Carver

State Bar Court Review Department
Filed: 04/12/16

Carver was properly served with Notice of Disciplinary Charges, done by certified mail under Bus & Prof 6002.1. He had instructed his mail service to refuse certified mail. When the mail went through, he switched to a USPS P. O. Box that would not accept certified mail. The State Bar warned him to file an answer or default would be taken. He did not act. His default was taken and he was enrolled inactive. He then appeared in court on behalf of a client. Held, UPL, violation of his duties under Bus & Prof 6068(a). His conduct also amounted to moral turpitude under Bus & Prof 6106, because he willfully blinded himself about his membership status. This was his third offense, so disbarment is recommended.

Tag: UPL

RECENT APPELLATE CASES

U.S. v Barragan

Ninth Circuit
Filed: 09/08/17

The prosecution argued that the jury should convict for non-evidentiary reasons, by listing each of he defendants' acts and stating "no more." Trial Court denied defense objections. Affirmed. Although prosecutors may not urge jurors to convict in order to protect community values, preserve civil order, or deter future law breaking, reversal is only warranted where there is prejudice to defendants. In this case, overwhelming evidence obviated any claim of prejudice.

Tag: Prosecutor misconduct

Pulte Home Corp v. American Safety Indemnity Company

Cal Court of Appeal
Filed: 08/30/17

Pulte was sued by homeowners for construction defects. Pulte was also insured under subcontractors' policies. Also, the issuer of the policies refused to defend; Pulte sued. Court found bad faith refusal to defend and awarded Pulte 1.4 million dollars in compensatory punitive and attorney fees under Brandt v. Superior Court. Affirmed and reversed in part. Bad faith under Brandt supported by substantial evidence. But court abused discretion in awarding attorneys fees by accepting Pulte's post-trial modification of fees from contingent to hourly, which changed amount to Pulte's benefit. Reversed on Brandt fees and punitive damages award.

Tag: Court award of attorney fees

Direct Capital Corporation v. Brooks

Cal Court of Appeal
Filed: 08/30/17

Attorney-wife's purchase/lease of office computer for her law practice was properly deemed "necessaries of life" under Family Code § 914(a), and was thus a community, not a separate obligation.

U.S. v. Walter-Eze

Ninth Circuit
Filed: 08/25/17

Defendant argued, and the court agreed, that the court had violated her right to counsel, creating an actual conflict of interest by threatening to impose fees on counsel for a continuance. Nonetheless, conviction was affirmed because defendant could not show prejudice by her counsel's' actions pursuant to Strickland v Washington.

Tag: Ineffective Assistance of Counsel

First Amendment Coalition v U.S. Department of Justice

U.S. Court of Appeals, Ninth Circuit
Filed: 08/25/17

The First Amendment Coalition (FAC) filed parallel lawsuits to obtain Government memoranda under the FOIA, concerning the killing of citizen terrorists. The DOJ released two memoranda in response, but the District Court denied FAC's request for attorney fees. Reversed and remanded to determine the amount of fees. That FAC substantially prevailed under Church of Scientology and found a causal nexus between the litigation and the government disclosures.

Tag: Court award of attorney fees

Retzloff v. Moulton Parkway Residents' Assn.

Cal Court of Appeal
Filed: 08/23/17

The Association, as defendant's, were ordered attorney fees and costs in litigation pursuant to C.C. 5235 (c). Plaintifffs appealed. Section 5235 (c) authorizes payment of costs alone, not attorney fees.

Tag: Court award of attorney fees

Sukumar v. City of San Diego

Cal Court of Appeal
Filed: 08/15/17

Sukumar's attorney requested documents under Public Records Act (PRA) (Government Code Section 6250 et seq). Trial Court denied attorney fees after City produced some, but not all of the records. Reversed and remanded. Because City produced certain documents only following Court-ordered depositions, plaintiffs were entitled to fees because defendants had previously withheld documents.

Tag: Court award of attorney fees

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NEW RULES, STATUTES ON ATTORNEY PROFESSIONAL RESPONSIBILITY

Evid Code §956. New code section 1/1/18

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]
Revised 11/2/17

The principles regarding prosecutor duties to disclose information and evidence have been rewritten twice in 2017. The current text is published on the State Bar's website at

http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Rules/Rules-of-Professional-Conduct/Current-Rules/Rule-5-110

Rowland v Chappell

U.S. Court of Appeals for the Ninth Circuit
Filed: 12/06/17

Rowland petitioned for Federal habeas corpus on grounds that his defense counsel did not hire an expert on time and thus he did not perform an adequate examination. The California Supreme Court rejected his petition. In this federal petition, the court rejected habeas corpus because the trial court decision was neither contrary to, nor involved an unreasonable application of clearly established Federal law "nor based on" an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding. Moreover, Rowland suffered no prejudice when weighed against the brutality of his crimes of rape and murder.

Tag:Ineffective Assistance of Counsel

Lopez v Routt

Cal Court of Appeal
Filed: 11/29/17

Lopez sued her employer for harassment in violation of FEHA. The jury found against her and in favor of her employer – The City of Beverly Hills – and her supervisor, Routt, the alleged harasser. The Trial Court denied Routt’s motion for attorney fees, because he could not show that Lopez’s claim was frivolous, as required by FEHA. On appeal, Routt claimed that the frivolousness standard did not apply to individuals.

Affirmed. "The equitable considerations that support…asymmetrical application of (fee awards) are no different as applied to an employer versus an individual defendant."

Tag: Court award of attorney fees

Morris v Superior Court

Cal Court of Appeal
Filed: 11/21/17

A Public Defender sued the Superior Court for its policy of denying appellate respondents court-appointed counsel. She claimed that appellate respondents were entitled under the Federal Constitution’s Sixth Amendment. Her petition was denied because the Sixth Amendment is not applicable to appellate proceedings, under Martinez v Court of Appeal, 2000 528 U.S. 152, 161.

Tag: Court Appointed Counsel

People v Young

Cal Court of Appeal
Filed: 11/17/17

The constitutional right to representation at critical stage of trial was violated when defendant was not present, and was represented by stand-in counsel at the time the Court removed juror without good cause. Here, stand-in counsel was unfamiliar with the case and did not argue the Judge’s decision to remove the juror without requisite good cause. Conviction reversed and remanded.

Tag: Ineffective Assistance of Counsel

Orien v Lutz

Cal Court of Appeal
Filed: 11/03/17

An order of attorneys’ fees in a partition action is not governed by C.C. 1717 that pertains to contractual attorneys fees. Rather, the attorney’s fees are awarded under C.C. 874.010 and 874.040.

Tag: Court award of attorney fees

Micha v Sun Life Assurance

U.S. Court of Appeals for the Ninth Circuit
Filed: 10/25/17

The Court generally employs the five-part test set out in Hummel v SE Rycoff & Company 634 F2nd 446 (9th Cir. 1980) to determine whether to award attorneys fees in a 29 USC § 1132 (g)(1) ERISA-based request. In this case it was determined that the Court must consider the entire course of litigation, not just the prior appeal, in assessing award of attorneys fees.

Tag: Court award of attorney fees

People v Perez

Cal Court of Appeal Ninth Circuit
Filed: 10/25/17

A jury convicted Perez on multiple murder charges in a gang and drug related ambush. At trial, the prosecution’s gang expert testified that both perpetrators and victims were members of the Sinaloc drug cartel. Perez claimed the expert testimony was inadmissible under People v Sanchez, a case decided after his trial. However, the Court affirmed conviction because defense failed to object on hearsay and Crawford grounds, thus waiving the objection and constituting a forfeiture.

Tag: Ineffective Assistance of Counsel

Doe v San Diego Imperial Council

U.S. Circuit Court of Appeals
Filed: 10/17/17

CCP Section 340.1 governing childhood sex abuse requires favorable conclusion on the merits, not procedural victory, to award attorneys’ fees.

Tag: Court award of attorney fees

U.S. v Preston

U.S. Circuit Court of Appeals
Filed: 10/17/17

Preston was convicted on two counts of aggravated sexual abuse of a child. There were a series of errors that cumulatively "violated due process, even where no single error would independently warrant reversal." Errors in testimony and improper comment by prosecutor on Preston’s decision not to testify, repeatedly arguing that child was telling truth, and misstatement of evidence in summation, rendered the trial fundamentally unfair. Reversed and new trial ordered.

Tag: Prosecutor misconduct

Rodriguez v McDonald

U.S. Circuit Court of Appeals
Filed: 09/29/17

"It is clear that in this case, a boy who invoked his constitutional right to the assistance of counsel was denied this assistance, and then was badgered into confessing murder." Judge Lasnik reversed and remanded. When an accused has invoked his right to counsel, all questioning must stop until counsel has been made available.

Tag: Court Appointed Counsel

URS Corp v Atkinson/Walsh Joint Venture

Cal Court of Appeal
Filed: 09/26/17

In this case, the Court announced a new bright line rule that an appeal of an order disqualifying an attorney automatically stays enforcement of the order, but does not result in automatic stay of all proceedings in a typical case.

Tag: Disqualification

In Re J.P.

Cal Court of Appeal
Filed: 09/26/17

In 2016, mother filed a petition to reappoint counsel after prior attorney was removed without reason. The Court denied the petition, resulting in mother being unrepresented at further hearings. Reversed. Juvenile courts must appoint counsel for a parent whose child is in out-of-home placement unless parent knowingly and intelligently waives counsel.

Tag: Court appointed counsel

Browning v Bakes

Cal Court of Appeal
Filed: 09/20/17

Browning was convicted of a 1985 robbery and murder, and sentenced to death. Habeas relief was ultimately granted because the State Court’s adjudication resulted in a decision that was contrary to Brady v Maryland. The prosecutor failed to disclose to the defense evidence of the source of bloody shoeprints, the benefit received by a prosecution witness for his testimony, and the victim’s description of the killer’s hair. There was a reasonable probability that had concealed evidence not been withheld, the jury would have reached a different result.

Tag: Prosecutor Misconduct; Brady

People v Bona

Cal Court of Appeal
Filed: 09/20/17

Bona had been convicted of elder abuse and was serving a four-year sentence when the BPH (Board of Parole) continued his MDO (Mentally Disordered Offender) hearing beyond 60-days. The trial court ordered Bona committed. Bona contended that trial court abused discretion in granting continuances, and that he was subjected to ineffective assistance of counsel for his attorney’s failure to object. Because he failed to demonstrate prejudice, trial court did not abuse discretion. Commitment upheld.

Tag: Ineffective Assistance of Counsel

Medina v Southern Coast Car Company

Cal Court of Appeal
Filed: 09/19/17

Mr. Medina purchased a used Audi in 2013 and then sued SCCC and it’s assignee for failing to disclose damage due to a prior accident. He settled with defendants and his settlement contained a provision for attorney’s fees to be awarded by the Court. SCCC et al appealed but were held to the specific attorneys fees provision in the settlement agreement.

Tag: Court award of attorney fees

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OTHER NOTABLE MATTERS

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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