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Archive for the ‘California LPL’ Category

CAUTION! Disciplinary Action Ahead

Posted on: February 27th, 2020

By: Anastasia Osbrink

It has now been over a year since California Evidence Code, section 1129 went into effect, and as such, it is a good time to be reminded that compliance is mandatory and attorneys who fail to comply face possible disciplinary action. Evidence Code, section 1129 requires attorneys to provide the client with a written explanation of mediation confidentiality and obtain a signed acknowledgment from the client on the disclosure document prior to the client agreeing to participate in mediation. (Evid. Code, § 1129.) Mediation confidentiality is codified in Evidence Code, section 1119. If an attorney fails to obtain this signed disclosure, which the attorney must also sign, he or she could face disciplinary action. Moreover, Evidence Code section 1122 was amended as part of this requirement. That Evidence Code section now provides for the admission of evidence of a signed disclosure form, or lack thereof, as part of a disciplinary action against an attorney for failure to obtain it. (Evid. Code, § 1122.)

This change, of which many California attorneys are still unaware, occurred as a result of the holding in Cassel v. Superior Court, where the California Supreme Court ruled that mediation confidentiality prohibited plaintiffs from introducing communications that took place during mediation as evidence of malpractice against their former attorneys. (Cassel v. Superior Court (2011) 51 Cal.4th 113.) After that ruling, the California Law Revision Committee wanted to ensure that clients understood the extent of mediation confidentiality and how it could impact the current or future litigation.

Providing a written explanation of mediation confidentiality that is signed by the client is not only good practice, it is the law. Moreover, compliance with Evidence Code, section 1129 is especially simple because there is form language within this code section that an attorney can use to ensure compliance. There are a few additional points to remember. First, the document must be a separate, stand-alone document that is not attached to any other document. Also, it must be obtained prior to the client agreeing to mediation. That often means before the Case Management Conference, California lawyers. The simplest means of compliance is to provide this document to the client at the same time as an engagement agreement and any conflict waivers, but separately from those documents. Additionally, the document must be provided in the client’s preferred language, so make sure to find this out from the client ahead of time. Finally, attorneys must make sure that they sign the document as well and provide a fully executed copy to the client. These are steps an attorney must take to make sure they do not face later disciplinary action.

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

The “Two Hats” Rule for California Lawyer-Mediators

Posted on: February 27th, 2020

By: Greg Fayard

For decades now, many practicing attorneys also mediate or arbitrate cases. Gone are the days where only retired judges mediate or arbitrate. California’s Rules of Professional Conduct for lawyers recognize that some neutrals also practice law.

That is, these are lawyers who wear “two hats”—the mediator hat and the lawyer hat.

Under Rule 1.12, a neutral in a case, cannot represent a party from a past mediation or arbitration as a client in a NEW matter without the informed written consent of all the parties in the NEW matter. This means, for example, that mediators need to keep track of all the parties in their mediations and if the mediator takes on a case as a lawyer involving a former mediation party, INFORMED WRITTEN CONSENT OF ALL PARTIES IN THAT NEW MATTER IS NEEDED.

But some lawyers work with mediators/arbitrators. That situation is also addressed by Rule 1.12. Just because a mediator-lawyer handled a case for a current client in the past, should not automatically bar another lawyer in the mediator’s office from representing that client in a NEW case. Rule 1.12 permits the otherwise conflicted lawyer to take the new case so long as screening and written notice is provided.

Here’s the bottom line: Per Rule 1.12, California lawyers who also mediate need to now have a robust conflict check system. Sometimes informed written consent for all parties in a new matter is needed. Other times, only screening and written notice (not consent) is needed.

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.

What Should a California Lawyer Do With An Inadvertently Produced Privileged Document?

Posted on: February 6th, 2020

By: Greg Fayard

Sometimes privileged documents are accidentally produced to opposing counsel. Usually, this occurs in a document production in a lawsuit where, buried in the documents, is a communication between a lawyer and client that is clearly privileged and confidential. What should the lawyer do? In California, a new Rule of Professional Conduct 4.4 codifies case law on this issue and is based on common sense.

When it is reasonably apparent that the lawyer has received a privileged document (or attorney work product, like case strategy notes) then the lawyer is to:

  1. Stop examining the document;
  2. Notify opposing counsel or the sender of the privileged document; and
  3. Return it

After that, the lawyer should seek to reach an agreement with the sender over the writing’s future use in the matter. If the opposing sides cannot come to an agreement, they should seek guidance from the court or tribunal.

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.

Mandatory Relief for Attorney Error in California Applies Only to Defaults, Default Judgments and Dismissals, Not “Analogous” Situations

Posted on: February 5th, 2020

By: Zachary Price

California Code of Civil Procedure section 473, subdivision (b) provides two avenues for relief when attorneys make mistakes.  Subdivision (b) provides discretionary relief for certain mistakes and mandatory relief for defaults, default judgments, and dismissals caused by an attorney’s mistake, inadvertence, surprise or neglect.  Although older case law provides some support for applying the mandatory relief provision of subsection (b) in “analogous” situations, in Shayan v. Spine Care and Orthopedic Physicians (January 9, 2020, B293857), the Second District Court of Appeal joined with more recent cases in limiting mandatory relief to the language of the statute.

In Shayan, the plaintiff filed an interpleader action following recovery in a personal injury action to resolve claims with various entities that had liens on the recovery.  Three interpleader defendants, including Spine Care & Orthopedic Physicians (“Spine Care”) and C&C Factoring Solutions (“C&C”) filed answers.  The court set the trial date.  Although all parties had actual notice of the trial date, Spine Care and C&C did not appear at trial.  The trial court proceeded with trial, heard evidence, and rendered judgment.  Subsequently, Spine Care and C&C, represented by new counsel, filed a motion to vacate default and default judgment under the mandatory relief provision of section 473.  The trial court denied the motion, holding that mandatory relief was unavailable, as there were no defaults, default judgments, or dismissals.

On appeal, Spine Care and C&C argued “for a more sweeping application” of the subdivision “that would expand the wording about defaults, default judgments, and dismissals to all ‘analogous’ situations.” Although admitting that “[t]here is some older case law support for this ‘analogous’ approach,” the court joined with more recent cases that “have hewed to the statute as the Legislature wrote it.”

In declining to broaden the mandatory relief provision, the court noted that “[l]awyers are pretty good at inventing analogies” and “it would be a disservice to embroider” the mandatory relief provision “with freeform extensions” to “analogous” situations.

California attorneys need to be aware of the avenues for relief when they make mistakes and what is, and is not, covered under subdivision (b) of section 473.  As noted in Shayan, the “Legislature can amend it if the coverage is wrong,” but “[u]ntil the Legislature acts, the statute’s words settle the matter.”

If you have any questions or would like more information, please contact Zachary Price at [email protected]

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.