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Archive for the ‘California LPL’ Category

Tips on Dealing With Pro Per Parties In California

Posted on: January 15th, 2020

By: Greg Fayard

At some point in their career, lawyers deal with the unrepresented—or pro pers. In California, there’s now an ethical rule that governs how to fairly and properly engage with opposing parties who do not have lawyers.

Rule 4.3 of the Rules of Professional Conduct for California lawyers says a lawyer cannot tell an unrepresented party he or she is disinterested or neutral. If the lawyer reasonably believes the pro per thinks the opposing lawyer is neutral, the lawyer needs to make a reasonable effort to correct that misunderstanding.

If a lawyer knows or suspects the interests of the unrepresented person conflicts with the lawyer’s client, the lawyer cannot give legal advice to him or her, but may advise the person to get counsel. Further, lawyers shall not try to get privileged or confidential information from pro pers. Under Rule 4.3, a lawyer can negotiate with unrepresented parties, but the lawyer must disclose that he or she represents an opposing party.

The policy behind this rule is fairness to pro pers, and to not take advantage of them because they do not have counsel.

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.

California Lawyers Should Not Lie

Posted on: December 20th, 2019

By: Greg Fayard

It seems obvious, but lawyers shouldn’t lie. A new Rule of Professional Conduct applicable to California lawyers says that while representing a client, a lawyer shall not knowingly make a false statement of material fact or law to a third person.

Rule 4.1 is aimed at lawyers communicating with opposing counsel or an opposing party. This duty to not misrepresent facts or law to others includes a lawyer “agreeing” with statements he or she knows are false. For example, if a lawyer hears a factually untrue statement said in a court hearing, and orally agrees with that statement, knowing it is false, that verbal affirmation runs afoul of the rule.

However, if the lawyer remained silent after hearing the false statement, such silence would likely not violate the rule—as silence is not an affirmation. Of course, the best practice for all lawyers, in California and elsewhere, is to tell the truth, don’t lie to others, and correct statements that the lawyer knows are untrue, even if it may not necessarily help the client’s case.

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.

Loss of Earnings Calculations – Experts – Damages – California

Posted on: December 16th, 2019

By: Chuck Horn

California just changed the law on recovery of loss of earnings.  Traditionally counsel, and experts, would look to the actual earnings history of the plaintiff, or plaintiff’s decedent, in the years before the accident or injury.  Subpoenas and Requests for Production of Documents would seek the personnel file, the W-2s, the date of initial employment and pay rate, and the person’s wage-increase progress, promotions, and likely future promotions and pay raises, and information to calculate life expectancy.  Then independent forensic economists would be given this information and would investigate the known statistics that apply to that person and calculate reasonably likely “past” earnings from the accident to trial, and reasonably likely “future” loss of earnings.  Seems simple, right?

California has just changed the way all this works.  The California legislature changed the law (Civil Code §3361, enacted by SB 41 in 2019) for civil damages for loss of earnings because the results of past practices “are a reflection of gender pay gaps and workforce discrimination,”  and “perpetuate systemic inequalities” and “disproportionately injure women and minority individuals by depriving them of fair compensation,” recognizing that “[a]ny generalized reduction of civil damages using statistical tables alone, based on a plaintiff’s membership in a protected class identified in Section 51 of the Civil Code, is counter to the public policy of the State of California.”

Effective 01/01/2020 Section 3361 has been added to the California Civil Code, as follows: “Estimations, measures, or calculations of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death shall not be reduced based on race, ethnicity, or gender.”  This is a significant change to past practices of counsel and experts for all sides in civil litigation in California and must be taken into account in claim evaluation and trial preparation.

If you have any questions or would like more information, please contact Chuck Horn at [email protected].

The Ethical Duty of Technology Competence – The Day is Coming in California

Posted on: December 5th, 2019

By: Renata Hoddinott

Recognizing the emergence of technology, its impact on the practice of law, and the importance of lawyers understanding technology, the American Bar Association modified its Model Rules in 2012 to make clear a lawyer’s duty of competence includes both a substantive knowledge of the law and the competent use of technology. ABA Model Rule 1.1 Comment 8 provides, in part, that, “to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice including the benefits and risks associated with relevant technology.”

Since then, 38 states* have now adopted some version of Comment 8. In 2016, Florida went even further and became the first state to require lawyers to complete three hours of continuing legal education on technology every three years. In 2019, North Carolina followed suit and requires lawyers to complete one hour of continuing education devoted to technology training every year.

But where California normally leads the nation in many areas, in this it is in the minority of hold-out states which have not adopted a version of Comment 8. While the State Bar of California’s Standing Committee on Professional Responsibility and Conduct has issued several opinions involving technology to date, California has not yet expressly referred to a technology component of a lawyer’s duty of competence in its Rules of Professional Conduct.

There are constantly emerging technologies to assist lawyers in delivering legal services to their clients. In the past, lawyers were deemed competent based on their experience and knowledge of a substantive area of law. As technology evolved, so too did the concept of competence. Types of  technology used  by today’s lawyers include the technology used to run a law firm and practice, case management software, billing software, and email, as well as data security to protect client confidentiality, technology used to present information to the court, electronic discovery, saving client information in the cloud and other third-party service platforms, and the use of social media such as Facebook, LinkedIn, and blogs. There is also the growing area of artificial intelligence or AI which is transforming the way lawyers and law firms perform legal research, due diligence, document review, and even more.

While these technologies offer many benefits to help increase efficiency, minimize mistakes, and decrease labor costs, there are also associated risks and pitfalls. Technology competence includes an understanding of the technology a lawyer currently utilizes in his or her practice, the additional technology available, and the technology that a client or prospective client uses or owns. Lawyers who are not technologically competent may be putting their clients and themselves at a disadvantage, as well as potentially risking a malpractice action in certain cases.

Attorneys must recognize the ways in which technology influences the practice of law in California. While it is not yet mandated as in many other states, that day is coming soon. And while technology continues to advance faster than developments in California law, lawyers should consider their duties of competence, diligence, supervision, and maintaining confidentiality when implementing and using technology.

*The states which have adopted some version of Comment 8 are: Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Florida, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming.

If you have any questions or would like more information, please contact Renata Hoddinott 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.

One if by land, . . . ZERO if by sea? (Apologies to Paul Revere) The Trapdoor of COGSA

Posted on: November 18th, 2019

By: Jon Tisdale

Lawyers who represent businesses who ship goods around the world need to protect their clients (and themselves) from the congressionally-mandated trapdoor of the Carriage of Goods By Sea Act (COGSA).  We now live in a world where brick-and-mortar stores are increasingly a thing of the past and the majority of goods sold are purchased online.  And then they have to be delivered.  Until someone invents the Transporter from Star Trek to “beam” products across the globe, our businesses and lives would grind to a screeching halt without the ability to ship products and goods.

So critical is the shipping industry to our economy, the United States Congress has acted to protect the integrity of this industry.  The legislative history tells us that congress reasoned (probably correctly) that if every time a shipper of goods was held responsible when a third party acted negligently and damaged the goods the shipper was entrusted to transport, negligence actions and damage awards would cause the cost of shipping anything to skyrocket and completely paralyze the shipping industry.  Congress reasoned further that the sophisticated players engaged in international shipping should be free to negotiate their own terms and conditions for indemnification, rather than be at the mercy of 50 different tort law systems nationwide.  Hence, the Carriage of Goods by Sea Act was born.

COGSA establishes an indemnity protocol governing reimbursement for the damage or destruction of goods that are shipped by sea.  Importantly, it does not matter whether the damage is occasioned by an intervening negligent third party or the shipping company’s own employee, agent or subcontractor.  If a ship filled with Bentleys and Rolexes is (a) hijacked by terrorists or (b) sunk by a negligent sea captain, the COGSA-mandated damages for the loss or destruction of whatever is shipped is limited to actual market value of the goods up to a maximum of $500 per item shipped.  This is fine if you are shipping inexpensive items; not so fine if you are shipping cars, heavy equipment or more expensive products or goods.

Under COGSA, the person or entity that contracts with the shipper has the option of (a) accepting the risk of the $500 COGSA limitation of indemnity, or (b) declaring the true value of the item being shipped and paying a non-trivial fee to increase the coverage.

The takeaway:  If your clients are shipping expensive products across country by truck, they are protected by state law systems of subrogation recovery.  But if your clients ship by sea, be sure they are cognizant of COGSA limitations and negotiate around them.

If you have any questions or would like more information, please contact Jon Tisdale at [email protected].