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Archive for the ‘California LPL’ Category

When Laws Conflict: What Ethics Rule Applies to a California Lawyer Advising On Cannabis?

Posted on: June 30th, 2020

By: Greg Fayard

It goes without saying that a lawyer—from California or elsewhere—shall not counsel a client to do something illegal.

But what about a state law that conflicts with a federal law? For example, federal laws that criminalize the use of marijuana and state laws that don’t criminalize marijuana–how should the lawyer advise a client when laws conflict regarding a subject matter?

Under California’s Rules of Professional Conduct applicable to lawyers, a lawyer can assist a client in complying with California law, but must inform the client when California law conflicts with federal (or Tribal law). The lawyer then needs to discuss the consequences of complying with a California law that runs afoul with another law.

For those lawyers that work in the area of Cannabis law, Rule 1.2.1 is the Rule to follow in California.

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.

How Should a California Mediator Deal With An Unrepresented Party?

Posted on: June 17th, 2020

By: Greg Fayard

Most California mediators are lawyers. When mediator-lawyers handle a mediation where one party does not have a lawyer, the lawyer-mediator has to treat that pro per party differently than a party who has a lawyer.

Specifically, if the mediator suspects the unrepresented party does not understand the role of a mediator as compared to a lawyer, the mediator needs to explain the difference to the lawyer-less party. That is, the mediator needs to advise the pro per that he or she, as the mediator trying to resolve a dispute, is neutral and not representing anyone.

Under Rule 2.4 of California’s Rules of Professional Conduct, it is the job of the mediator to help the pro per party understand what mediators are and what they do, and how they are not advocates, and are different from lawyers.

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.

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.