Attorney Publications

Our perspectives, with occasional hue and cry

When is Production of a Privileged Document Inadvertent?

Document production in litigation often involves massive numbers of documents, and established California law recognizes that the inadvertent inclusion of privileged documents in that context should not automatically be deemed a waiver of privilege. Much has been written about the duty to stop review and notify the privilege holder, as imposed by the trio of California cases.

[Full Article at Los Angeles County Bar Association]

An Attorney’s Duties and Options When Faced With a Diminished Client: Change on the Horizon

An attorney who comes to the reasonable conclusion that her or his client suffers from diminished capacity and is no longer able to intelligently participate in decisions relating to the representation may understandably desire to take actions—such as initiating a conservatorship—that the attorney believes to be in the best interest of the client, but which are prohibited by the attorney’s ethical duties. What may a lawyer do?

[Full Story at Los Angeles County Bar Association]

Do I have to? Determining if withdrawal is mandatory

pdf iconThe lines between ethically mandated and permissive withdrawal from a client’s representation are often unclear, making it difficult for attorneys to determine their ethical obligations and how to satisfy them. This article will explore where the lines are drawn, how they are applied, and what an attorney’s duties are when withdrawing from representation… [Download PDF]

Attorney Billing Statements: Are They Privileged or Not?

A recent Second District opinion, now superseded by the California Supreme Court’s grant of review, has highlighted the ongoing controversy in California courts over whether or not law firm billing statements to clients are protected communications. In County of Los Angeles Board of Supervisors v. Superior Court,1 the real party in interest, ACLU of Southern California, sought…

[Full Article at Los Angeles County Bar Association]

Beware of Strangers Bearing Gifts – the Perils of Purloined or Privileged Evidence

As recounted in Virgil’s Aeneid, the gift of the wooden horse brought an unexpected end to the Trojan War. Sometimes, in litigation, gifts come with a price. Most evidence is derived through the legitimate process of discovery, yet evidence may also arrive in nontraditional ways such as the anonymous delivery of documents or the appearance of a third-party witness who offers a hard drive containing materials relevant to your case.

[Full Article at Los Angeles County Bar Association]

Ethical Enforcement of Attorney’s Liens – Avoiding Traps for the Unwary

pdf iconNoting the mischief and leverage over a client’s funds that even a false notice of attorney’s lien gives an attorney, the Court of Appeal in Carroll v. Interstate Brands Corp., 99 Cal. App. 4th 1168, 1178 (2002) called on the legislature to adopt statutory procedures for the expeditious resolution of attorney’s liens. Ten years later, no such statutory procedures have been provided. Much of the “mischief” feared by the Carroll court, however, can be avoided if an attorney abides…. [Download PDF]

Classified Opinions: Habeas at Guantánamo and the Creation of Secret Law

Classified Opinions: Habeas at Guantánamo and the Creation of Secret Law – Georgetown Law Journal

The Uthman opinions highlight a key consequence of the use of classified information in Guantánamo habeas proceedings: the production of classified opinions. Indeed, the vast majority of district and circuit court opinions in Guantánamo habeas cases feature at least some redaction. Some have been so redacted as to become virtually incomprehensible.

[Full Article at Georgetown Law Journal]

New Theories for Non-Clients to Seek Disqualification of Counsel

Most disqualification cases arise from a conflict of interest involving disclosure or the threat of disclosure of confidential information.1 On occasion, a disqualification motion will be made upon the alleged unethical conduct of adverse counsel. In some cases, courts have held that a litigant may have standing to assert a basis for disqualification of the opposing counsel even where there was no pre-existing attorney-client relationship between that counsel and the moving party, and confidential information was not involved.

[Full Article at Los Angeles County Bar Association]

The Crossroads of Confidentiality and the Litigation Privilege

Will the litigation privilege protect a lawyer who discloses information to a state agency about the prospective unlawful conduct of a former client? A recent Second District Court of Appeal decision, Fremont Reorganizing Corporation v. Faigin,1 establishes important precedent regarding the application of anti-SLAPP protections in actions between a lawyer and a former client, as well as clarifies the scope of the litigation privilege and whether it applies in the client’s claim for breach of the duty of confidentiality.

[Full Article at Los Angeles County Bar Association]

Ethical Concerns Regarding Mediation Confidentiality and the Implications of Cassel

pdf iconOrange County Lawyer Magazine In most litigation matters the subject of mediation is at the forefront of the settlement process. Judges and lawyers routinely assume that nearly every significant case will go to mediation. Yet, until the Legislature acts… lawyers are now literally exempt from liability for misconduct at or related to mediation if the evidence is dependent upon communications related to the mediation. [Download PDF]

Discounting Your Fees: Is it an Ethical Violation?

A recent court of appeal decision resolved the question of whether it is unethical for a lawyer to offer to discount legal fees to encourage a client to settle an action. In Chan v. Lund, 188 Cal. App. 4th 1159 (2010), the Sixth Appellate District concluded that the attorney’s offer does not constitute a “business transaction” subject to the disclosure requirements of Rule 3-300 of the Rules of Professional Conduct.

[Full Article at Los Angeles County Bar Association]

Rough Sailing on the Seas of Inadvertent Disclosure

pdf iconOrange County Lawyer Magazine Imagine a discovery scenario in which your opponent produces thousands of pages. In them, you find a killer piece of work product that should not have been produced. It compellingly reveals the opponent’s strategy and weaknesses. Can you use it? Should you even read it? [Download PDF]