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Archive for the ‘California LPL’ Category

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

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

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

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].