Attorney PublicationsOur perspectives, with occasional hue and cry
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.
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?
The 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]
A recent Second District opinion, now superseded by the California Supreme Court’s grant of review, has highlighted the ongoing controversy in California courts over whether or not law firm billing statements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…
The decision to withdrawal from representing a client is never an easy one, but for contingency fee attorneys, the decision can mean forfeiting fees. This is true even if the attorney believes the grounds for withdrawal are mandatory under the Rules of Professional Conduct… [Download PDF]
Orange County Lawyer Magazine. A client whom you currently represent in litigation takes on an aggressive tone, accusing you of mishandling his or her legal matter… While the relationship with your client still exists, you speak with another of your firm’s partners about how the firm should respond. Is the communication going to be privileged? [Download PDF]
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.
It is not uncommon in the course of civil litigation, particularly in discovery disputes, for one party to be ordered to pay another party monetary sanctions that are calculated based on the attorney’s fees and costs incurred in connection with a motion or proceeding…. [Download PDF]
Noting 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 – 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.
Orange County Lawyer Magazine Lack of communication between lawyer and client not only impairs the trust and confidence that is essential to a functioning attorney-client relationship, it can also lead to liability for legal malpractice. [Download PDF]
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.
A recent 2011 decision addressed the law applicable to enforcement of arbitration clauses in retainer agreements and concluded in somewhat unique circumstances that a lawyer did not have a fiduciary duty to separately explain the clause to the clients where the language of the agreement was understandable and the clients simply failed to read it.
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.
Orange 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]
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.
Orange County Lawyer Magazine. Client disappointment over unexpected results leads to malpractice claims… Maintaining effective communication concerning expectations is an essential skill in guarding against prospective malpractice liability. [Download PDF]
In the current business climate, lawyers look for creative ways to promote themselves—newsletters, mailers, print media, Web sites, late night television, even the glaring message on the side of a bus. It seems like every day we hear a lawyer on the radio promoting his or her creative approach to loan modification.
Ethically Speaking: Who ‘Ya Gonna Call?”: A Primer on Ex Parte Contacts with Employees of Adverse Parties
Orange County Lawyer Magazine Ethics issues are not always black and white – the tough ones tend to fall into gray areas. Welcome to Rule 2-100… [Download PDF]
These days, lawyer migration from one firm to another is a fact of life, yet law firms still struggle with the ethics of recognizing and resolving the resulting conflicts of interest. As recently noted at the State Bar’s 2008 Conference of Delegates, “Gone are the days when attorneys work for one firm their entire career.”
Rule 3-310 of the California Rules of Professional Conduct tells us certain conflicts may be waived by informed written consent of the client following written disclosure of the relevant circumstances and the reasonably foreseeable adverse consequences.
Orange 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]
Orange County Lawyer Magazine (co-written with Carole J. Buckner) While lawyers should refrain from initiating sexual relationships with their clients, when such a relationship develops it does not warrant discipline unless the lawyer has engaged in unlawful or coercive behavior or the relationship results in a failure to competently perform legal services… [Download PDF]
Orange County Lawyer Magazine There is no hitching post at the courthouse anymore, but we can all learn something about principles of good lawyering from the Code of the West…. [Download PDF]
Orange County Lawyer Magazine (co-written with Carole J. Buckner) In this article, we examine the exceptions to the ethical duty of confidentiality and to the attorney-client privilege under California law and explore the permissible scope of such disclosures… [Download PDF]