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Archive for July, 2019

Are Verbal Fee Splits Among California Law Firms Okay?

Posted on: July 18th, 2019

By: Greg Fayard

The answer to this question is now “no.” When different law firms split a legal fee–say a contingency fee–verbal “gentlemen’s agreements” are not permitted under California’s new ethics rules. The old ethics rules allowed different law offices to verbally agree to a referral fee wherein the referring lawyer would get, say, 5% of any total recovery by another, unaffiliated lawyer. New Rule 1.5.1, now requires that the unaffiliated lawyers splitting or dividing such a fee have their own agreement in writing. Further, the client has to consent in writing to that fee split. The written disclosure to the client must disclose the terms of the fee split and the identity of the lawyers who are splitting the fee. As long as the total fee charged by all lawyers is not increased due to the agreed split, fee sharing among different law offices is permissible under California’s ethical rules.

The agreement among unaffiliated law offices need not be signed, however. An informal e-mail setting forth the terms of the fee split could suffice.

The lesson here is casual, oral arrangements among California law firms to split legal fees are no longer permitted under the ethical rules.

If you have any questions or would like more information, please contact Greg Fayard at [email protected], or any other member of our Lawyers Professional Liability Practice Group, a list of which can be found at www.fmglaw.com.

Federal Litigation and How to Turn a USCIS Denial into an Approval

Posted on: July 17th, 2019

By: Ken Levine

The FMG Immigration Section was retained to prepare a green card case for one of the top chess players in Asia.  Our client, Oliver Barbosa, is a chess Grandmaster who hails from the Philippines.  He is currently ranked the 2nd best chess player in his country, the 60th best chess player on the Asian Continent and the 474th best chess player in the world.  FMG was already familiar with Oliver’s credentials. Our firm had previously secured an O-1 (extraordinary ability) work visa on his behalf, which allowed him to work as an Instructor for a prominent chess instruction company in New York City.

Information on Oliver’s impressive chess accomplishments can be seen in the attached articles:

http://bangkokchess.com/gm-oliver-barbosa-runner-up-of-the-14th-bcc-open-2014/

http://www.chessdom.com/parsvnath-international-open-oliver-barbosa-clinches-title/

Given the substantial evidence supporting Oliver’s O-1 work visa we had confidence that USCIS would look favorably upon our EB1 filing.  However, USCIS raised several legal issues in a request for evidence (RFE) and cast doubt on his eligibility to receive a green card under this category.  FMG immigration attorneys vigorously responded to the Immigration Service’s RFE and two weeks later we were met with a surprising denial decision.

After assessing the denial and determining that the legal reasoning set out in the decision was very much at odds with the actual evidence, FMG strongly recommended pursuing federal legal action.  While there are appellate steps within the USCIS process (Motion to Reconsider or an Appeal to the Administrative Appeals Office) these options were substantially less preferable than simply taking USCIS straight to Federal Court.   FMG filed what is known as a “Declaratory Action” in the U.S. District Court for the Eastern District of New York – https://www.pacermonitor.com/public/case/28492611/Barbosa_v_Barr_et_al

Our case was never reviewed by the Federal Judge nor was it necessary to appear in court.  23 days after filing and a mere five days after the Assistant U.S. Attorney (AUSA) entered their appearance, we received a notice that USCIS had reopened the denial and approved the EB1 petition.  The approval means that Oliver and his wife (Sunshine) will receive their green cards under our country’s most elite and prestigious immigration category.  Congratulations Oliver and Sunshine!

Oliver emailed us the below comments and has authorized us to print them here:

I have had the privilege of having Ken as my immigration attorney for over 3 years.  He had my O1 application approved then we hired him to prepare the green card.  Since the beginning of the green card process I was realistic and understood that the immigration process will sometimes not go smoothly, but I also believed that my decades of success and recognition in chess would work in my favor. 

The EB1 denial was unexpected and devastating.  While we were reluctant to challenge Immigration in court, since taking the government to court is just not what one does in the Philippines, Ken convinced us.  He spent a lot of time answering our questions about a lawsuit and addressing our concerns.  Ken explained his reasons for wanting to sue the government, pointed out what evidence he felt Immigration did not consider, and overall really seemed to have all the bases covered. Less than 3 weeks after the case was filed we received a call from Ken.  Immigration reversed the denial and approved my EB1 case!! 

I want to say a few things about Ken.  He is honest, trustworthy and very straightforward. He will tell you exactly where you stand and what direction you should go.  Thank you so much Ken for all your help, your perseverance and last, but certainly not least, for believing in my case.  Winning in court would not have been possible without your hard work, knowledge and skill.  I have already recommended him to other chess players and will certainly retain his services for my future immigration matters.”

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

United States Supreme Court to Decide Whether Georgia Law can be Copyrighted

Posted on: July 15th, 2019

By: Jason Kamp

The United States Supreme Court recently agreed to decide whether the annotations contained in the Official Code of Georgia Annotated (OCGA.) can be copyrighted by the state of Georgia, granting certiorari in State of Georgia, et al. v. Public.Resource.org, Inc., Case No. 18-1150 (S. Ct. June 24, 2019).

As explained by the 11th Circuit Court of Appeals, “In most states the ‘official’ code is comprised of statutory text alone, and all agree that a state’s codification cannot be copyrighted because the authorship is ultimately attributable to the People. Conversely, all agree that annotations created by a private party generally can be copyrighted because the annotations are an original work created by a private publisher. But the annotations in the OCGA are not exactly like either of these two types of works. Rather, they fall somewhere in between — their legal effect and ultimate authorship more indeterminate.” State of Georgia, et al. v. Public.Resource.org, Inc., 906 F.3d 1229, 1232 (11th Cir. 2018).

Unlike most official state codes, Georgia’s official code is annotated with non-statutory text.  This text includes summaries of judicial decisions, editor’s notes, research references, notes on law review articles, summaries of Attorney General opinions and other materials.  “The Code itself makes clear that these annotations are a part of the official Code, stating that the statutory portions of the Code ‘shall be merged with annotations… and [are] published by authority of the state …and when so published [are to] be known and may be cited as the ‘Official Code of Georgia Annotated.’ O.C.G.A. § 1-1-1.”  Id. at 1233.

The annotations are developed by a private party, LexisNexis, according to a contract with the State of Georgia. This contract specifies the type of annotations that appear with the statutory text and requires that LexisNexis present the content in a specific manner.  A state commission supervises the work LexisNexus performs and holds final editorial control. The Georgia legislature then adopts the annotations as their own, merging them with the statutory text in a process similar to passing the underlying laws. The State of Georgia holds the copyrights to the annotations LexisNexus creates.

Litigation over the copyrighted annotations began when a non-profit organization purchased and scanned all 186 printed volumes of the Official Code of Georgia Annotated and posted them to its free website.  The state sued and won in the district court.  Late last year the 11th Circuit Court of Appeals reversed, holding Georgia’s official code annotations are sufficiently “law-like” to be considered a work created by the state and outside the realm of copyrightable material.

The United State Supreme Court does not grant cert to affirm a lower court’s decision nearly as often as it does to reverse.  However, this case resides at the tension point between two American values: equal access to democratic institutions and private property rights.  Perhaps the Court merely wants to weigh in.

If you have questions or would like more information, please contact Jason Kamp at [email protected].

Some Potential Certainty in an Outcome in an Uncertain Medical Malpractice World

Posted on: July 12th, 2019

By: Shaun Daugherty

Medical malpractice claims can be dangerous in front of a jury and some recent Georgia verdicts are proof of that.  In Georgia, as many other states, medical doctors typically have consent clauses in their professional liability policies that require their consent before any payment may be offered by the insurance company.  In part, this is because any payment by the insurance company on behalf of the provider to settle a malpractice claim is reportable to the National Practitioner’s Databank(“NPDB”) and, for physicians, the Georgia Composite Medical Board (“the Board”).  The Board has the power over the providers’ licenses and a report could start an investigation that could lead to sanctions against the providers’ license, up to and including revocation, and the sanctions are public record.

Because of the uncertainty in the medical malpractice trials, may times the parties seek some parameters in the form of high/low agreements where the plaintiff is guaranteed some minimal amount even if the jury returns a verdict in favor of the provider, but caps the top dollar payout even if the jury awards more.  However, the consent clause in the providers’ insurance contracts usually require that this agreement also be consented to because the payment of the “low,” even in light of a defense verdict, would require a reporting to the Board, but not the NPDB.  Georgia HB 128 changes this state reporting requirement now that it has been signed into law.

The NPDB does not require reporting of the payment of a “low” in light of a defense verdict in a medical malpractice trial and HB 128 seems to mirror the intent of the federal reporting requirements.  Now, if a physician receives a defense verdict at trial, any payment of a “low” is no longer reportable to the Board by the insurance carrier and, thus, no potential investigation or sanctions.  This removal of the reporting requirement may result in incentivizing physicians to consent to these types of agreements in the future to allow for more certainty on the potential outcomes of the cases, regardless of what a jury may do.

If you have questions or would like more information, please contact Shaun Daugherty at [email protected].

Increasing Suits to Avoid Arbitrator Administrator Selection Clauses in California UIM Arbitration and Possible Responses

Posted on: July 11th, 2019

By: Timothy Kenna

Many automobile insurance policies designate an Arbitration Administrator to conduct UIM arbitrations under their rules.  Increasingly counsel for the insured are seeking to avoid arbitration under the rules of the selected Administrator arguing that there is an inherent bias created by the designation in the policy.  However, these objections are generally unsupported by any actual facts or credible legal arguments.

California Insurance Code section 11580.2, subdivision (f), provides that an uninsured motorist policy “shall provide that the determination as to whether the insured shall be legally entitled to recover damages, and if so entitled, the amount thereof, shall be made by agreement between the insured and the insurer or, in the event of disagreement, by arbitration.  The arbitration shall be conducted by a single neutral arbitrator.’”

The California appellate courts have routinely upheld arbitration clauses providing for the selection of neutral arbitrators by selected Administrators in a wide range of contexts outside of UIM disputes.  Additionally, Briggs v. Resolution Remedies (2008) 168 Cal.App.4th 1402 upheld the Administrator selection in the UIM arbitration clause involved in that case.  The fact that UIM arbitrations have been conducted under these same provisions for decades with few attacks on the fairness of the results is testament to the fairness of the selections under these policies.

Responses to suits seeking to avoid the selection of Administrator include demurrers and motions to compel arbitration in accordance with the provisions of the UIM arbitration clause and Insurance Code section 11580.2(f).  Sanctions may also be sought.  CCP Section 128.5 provides that “a trial court may order a party, the party’s attorney, or both to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay . . . .”

“Actions or tactics” can include, for example, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.  When a tactic or action utterly lacks merit the courts are entitled to infer the party knew it lacked merit and pursued it for some ulterior motive.  Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500, 1505.

If you have questions or would like more information, please contact Timothy Kenna at [email protected].