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Posts Tagged ‘attorney’

Top 10 Tips For Taking the State Bar

Posted on: July 1st, 2019

We’ve asked our attorneys for their advice for taking the bar.  Here are our top 10 tips.

  1. Start studying early and create a study schedule.

This can be difficult to do with law school, but if you have a free weekend and some time to catch up on a subject you think you have weaknesses in, this is a great opportunity for you to solidify your foundation for that subject. It doesn’t have to be a full-fledged study session. Read an outline, do some practice questions, anything!

  1. Treat studying like a full-time DAY job.

Don’t study into all hours of the night. Leave time for relaxation and leisure on the weekends so you don’t go crazy. Along the same lines, stay healthy. Get as much sleep as possible, exercise, and take time to prepare nutritious meals.

  1. Focus on what has worked well and been effective for you up to this point.

For most people, sticking to a tried-and-true study method will serve them well during bar prep instead of trying out all sorts of different “fad” study strategies, which may be more distracting than helpful.

Also, don’t be afraid to deviate from the bar company’s study plan if you know a different approach works better for you – trust yourself, be consistent in doing the work, and make honest evaluations about your progress as you go along to identify your strengths and weaknesses.

  1. Select a great prep course.

Barbri is pretty good. Their lectures are a bit long, but worth it. The essay practice seminars are EXTREMELY important. Do not neglect. AdaptiBar is another good one to use. Bar Secrets is helpful for essay questions.  Dr. Saccuzzo has REPEATEDLY successfully predicted the essay questions on the bar. The predictions are free. Bar Secrets is very helpful with essay questions.

  1. Learn to be REALLY hard on yourself.

Read sample answers. Learn to grade objectively so you can grade your own essays without bias.

  1. Practice your time management now. 

Do not go over on time for any essay or the performance test on test day.  Do not get bogged down on a handful of MBE questions.  It is not worth it.  Give each part of the exam your full attention.  Complete the task in front of you and then move on.  Don’t look ahead and don’t look back.  Just put one foot in front of the other and march to the finish line.

  1. Make logistical preparations to ensure your testing experience goes smoothly.

Visit the bar exam location before test day to get familiar with the area.  Put together your pencils, pens, and other testing materials.  Make plans for getting to the exam, packing lunch, etc.  Choose your lodging carefully!  Make sure you have a comfortable, quiet place to stay each nigh within walking distance, or with convenient and easy access to the exam location.  Pack a healthy lunch so you won’t have to fight the crowds or stress during break time.  Have ear plugs on hand.  Make sure you have a reliable laptop and don’t forget your charger!

  1. This is an issue spotting exam.

You can’t get points if you don’t find the issue.  When you are reviewing model answers pay as much attention to the issue outline as you do the rule statements and analysis paragraphs.  This will help you see what issues are grouped together so you don’t miss anything.

  1. Be sure to also give yourself time to unwind and rest at the end of each day after your studies.

Managing stress levels and avoiding burnout are as critical as learning the material itself, and allowing yourself sufficient rest also helps with retaining all the material you’ve been studying.

  1. Just push through and stay positive!

 

 

What Are The Ethical Rules For Legal Blogs In California?

Posted on: February 1st, 2019

By: Greg Fayard

If you are a California lawyer and are thinking about starting a blog, keep these points in mind:

  1. Blogging by an attorney may be a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising if the blog expresses the attorney’s availability for professional employment directly through words of invitation or offer to provide legal services, or implicitly through its description of the type and character of legal services offered by the attorney, detailed descriptions of case results, or both.
  2. A blog that is an integrated part of an attorney’s or law firm’s website will be a communication subject to the rules and statutes regulating attorney advertising to the same extent as the website of which it is a part.
  3. A stand-alone blog by an attorney, even if discussing legal topics within or outside the authoring attorney’s area of practice, is not a communication subject to the requirements and restrictions of the Rules of Professional Conduct and the State Bar Act relating to lawyer advertising unless the blog directly or implicitly expresses the attorney’s availability for professional employment.
  4. A stand-alone blog by an attorney on a non-legal topic is not a communication subject to the rules and statutes regulating attorney advertising and is not subject thereto simply because the blog contains a link to the attorney or law firm’s professional website. However, extensive and/or detailed professional identification information announcing the attorney’s availability for professional employment will itself be a communication subject to the ethical rules and statutes.

See California Rules of Professional Conduct 7.1 and 7.2 and Business and Professions Code sections 6157-6159.2; State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion Interim No. 12-0006.

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

California Court Clarifies Grounds for Law Firm Disqualification

Posted on: January 30th, 2019

By: Brett Safford

In O’Gara Coach Company, LLC v. Joseph Ra, 2019 Cal.App. Lexis 12, the California Court of Appeal clarified the grounds on which a law firm can be disqualified. The Court reversed the decision of the trial court and disqualified Richie Litigation PC from representing Joseph Ra, a former executive of O’Gara Coach Company, LLC, in litigation involving Ra and O’Gara Coach. The Court held that disqualification is warranted because Darren Richie, the founder of Richie Litigation, formerly served as O’Gara Coach’s president and chief operating officer, and in those roles, he served a primary point of contact for the company’s outside counsel and possessed “confidential information, protected by O’Gara Coach’s attorney-client privilege, concerning Ra’s allegedly fraudulent activities at issue in this litigation.” The Court disqualified Richie Litigation even though Richie was not a licensed attorney when serving as O’Gara Coach’s president and chief operating officer and never had an attorney-client relationship with the company. The Court further held that vicarious disqualification of the entire firm, not only Richie, is warranted under the doctrine of imputed knowledge.

The litigation between O’Gara Coach and Ra arose from a lawsuit filed by Marcelo Caraveo, a former customer of O’Gara Coach, alleging wrongful conduct by O’Gara Coach, Ra, and others relating to Caraveo’s acquisition of luxury vehicles from O’Gara Coach. Ra filed a cross-complaint against O’Gara Coach for indemnity, and O’Gara Coach filed a cross-complaint against Ra, Caraveo, and others alleging that Ra and Caraveo “were the primary architects” of a fraudulent scheme involving the sale, leasing, and financing of vehicles.

Richie’s employment with O’Gara Coach terminated in 2016. In May 2017, Richie filed articles of incorporation for Richie Litigation which named Robert Lu as the sole officer and director.  In June 2017, Lu substituted as counsel of record for Ra. In August 2017, Richie was admitted to the California State Bar.

In October 2017, O’Gara Coach moved to disqualify Richie Litigation based on two reasons. First, O’Gara Coach argued that although Richie was not a licensed attorney when employed by the company, “the court should apply the rule requiring disqualification of attorneys representing adverse parties in successive representations when, as here, the matters are substantially related, as well as the rule that, when a former client’s confidential information is known to any attorney at a law firm, the entire firm must be disqualified.” Second, O’Gara Coach argued disqualification of Richie Litigation is warranted because Richie was privy to O’Gara Coach’s privileged information, and “Richie Litigation is not entitled to exploit that information in litigation adverse to the company.” The Court of Appeal rejected the first argument, but agreed with the second, holding that the trial court “erred in failing to consider O’Gara Coach’s alternate argument that disqualification of Richie and his law firm was required as a prophylactic measure because the firm was in possession of confidential information, protected by O’Gara Coach’s attorney-client privilege, concerning Ra’s allegedly fraudulent activities at issue in this litigation.”

The Court of Appeal explained that O’Gara Coach presented undisputed evidence that Richie participated in meetings and communications with outside counsel who were investigating Ra’s activities and “developing theories material to O’Gara Coach’s defense and forming the basis for its cross-claims in this litigation and that are protected by lawyer-client privilege.”  As the privilege belongs to O’Gara Coach, Richie cannot disclose privileged information without O’Gara Coach’s consent.  The Court further concluded, “[N]ow that Richie is a member of the California State Bar, O’Gara Coach is entitled to insist that he honor his ethical duty to maintain the integrity of the judicial process by refraining from representing former O’Gara Coach employees in this litigation against O’Gara Coach that involve matters as to which he possesses confidential information.”

The Court of Appeal further held that Richie Litigation is variously disqualified because “once a showing has been made that someone at the adverse party’s law firm possesses confidential attorney-client information materially related to the proceedings before the court, a rebuttable presumption arises that the information has been used or disclosed in the current employment,” and Ra did not present evidence that Richie had been screened from Lu or other lawyers at the firm working on the pending litigation. As such, the Court held that “the doctrine of imputed knowledge requires the vicarious disqualification of the entire Richie Litigation firm.”

O’Gara Coach emphasizes the paramount importance of protecting client confidences and the attorney-client privilege to ensure the “integrity of the judicial process.” An attorney must not only be mindful of his or her own prior relationships with an opposing party, but also of the prior relationships between other attorneys in his or her firm and an opposing party. Without thorough conflict checks, firms may subject themselves to disqualification and other costly repercussions from their clients.

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

New Task Force Aims to Reform California’s Technological Ethical Rules

Posted on: January 15th, 2019

By: Paige Pembrook

On December 5, 2018, the California State Bar Task Force on Access Through Innovation in Legal Services held its first meeting and started a long process to modernize ethical rules that currently inhibit lawyers from fully using innovative technologies and services from non-lawyer businesses. Under the Current Rules of Professional Conduct for California lawyers, attorneys risk professional discipline and malpractice liability when using services and software offered by non-lawyer technology businesses, even though those services and software offer significant potential to improve access to and delivery of legal services.

Earlier this year, the State Bar charged the Task Force with recommending rule modifications to allow collaboration and technological innovation in legal services, including use of artificial intelligence and online legal service delivery models. The Task Force is specifically tasked with scrutinizing existing rules and regulations concerning the unauthorized practice of law, lawyer advertising and solicitation, partnerships with non-lawyers, fee splitting, and referral compensation. The Task Force must submit its recommendations to the State Bar Board of Trustees before December 31, 2019.

As any effective rule changes remain years away, lawyers must be aware of and comply with the current rules that restrict lawyers seeking to collaborate with and use technology from non-lawyer businesses. The Rules of Professional Conduct are often implicated when lawyers collaborate with non-lawyer businesses offering technology-driven legal services and software. These rules include those premised on harm to clients that flows from incompetent legal service (Rule 1.1), non-lawyer ownership of law offices and the unauthorized practice of law (Rules 5.4 and 5.5), and the dissemination of biased and/or misleading information (Rules 7.1-7.3).

To the extent that lawyers violate any of the aforementioned rules by using technology-driven legal services and software offered by non-lawyer businesses, they may be subject to State Bar discipline.

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

Cal. Supreme Court Says Attorneys May Not Get Paid If They Have A Flawed “Blanket” Conflict of Interest Waiver

Posted on: September 13th, 2018

By: Greg Fayard

The California Supreme Court has weighed in on the vital importance of conflict of interest waivers. A flawed one could deprive attorneys of their fees.

On August 30, 2018, the Supreme Court analyzed the validity of a conflict of interest waiver in a law firm’s retainer agreement for a high stakes case.  In Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (2018) 2018 Cal. LEXIS 6399, J-M Manufacturing Company, Inc. (J-M) retained California law firm Sheppard Mullin to represent it in a large federal lawsuit where J-M was sued for over $1 billion in damages. Sheppard Mullin’s agreement had a general conflict waiver, where J-M waived any and all conflicts of interest. It turns out, however, that Sheppard Mullin had, and was, representing one of J-M’s adversaries in the federal case—specifically the South Lake Tahoe Public Utility District (South Tahoe), but in unrelated employment matters. That prior and concurrent representation was not specified in the conflict waiver that J-M agreed to.

South Tahoe learned of the conflict, and successfully moved to disqualify Sheppard Mullin. Unfortunately, Sheppard Mullin had already billed 10,000 hours in the huge federal action, to the tune of some $3 million in fees, with over $1 million unpaid by J-M. Sheppard Mullin then sued J-M for its unpaid fees. J-M cross-complained, seeking to disgorge its fees it paid to Sheppard Mullin and to not have to pay the additional fees owed. The law firm’s retainer agreement had an arbitration clause, which Sheppard Mullin successfully invoked. The arbitrators ruled in favor of Sheppard Mullin, allowing the law firm to keep its earned fees, but also requiring J-M to pay Sheppard Mullin the over $1 million it still owed. The arbitrators described Sheppard Mullin’s flawed conflict waiver as a minor and it did not warrant disgorgement of all the fees J-M had paid. J-M claimed the flawed conflict waiver was an ethical breach by Sheppard Mullin that rendered the whole contract illegal and unenforceable, in violation of public policy (to protect the public from unethical attorney conduct). The trial court disagreed and affirmed the arbitrators’ ruling. J-M appealed. The Court of Appeal reversed, holding the entire agreement was illegal, and Sheppard Mullin was not entitled to any of its $3 million in fees, including the millions J-M already paid the firm. Sheppard Mullin petitioned the Supreme Court, which granted review and issued a 41-page opinion and dissent.

The Supreme Court held that the whole Sheppard Mullin-J-M contract was unenforceable because the flawed conflict waiver violated public policy. The Supreme Court held that at the time it represented J-M, Sheppard Mullin represented an adverse party in that case, which the firm knew about but did not tell J-M. Hence, the general conflict waiver J-M agreed to was not “informed.” Sheppard Mullin’s representation of J-M’s adversary (South Tahoe), was a “present reality” and not a “future possibility” and should have been specifically disclosed. Hence, the Supreme Court vacated Sheppard Mullin’s attorneys’ fee award. Sheppard Mullin was therefore not entitled to the over $1 million in unpaid fees.

But what about the millions of dollars J-M already paid Sheppard Mullin? Should those fees be disgorged? Could Sheppard Mullin keep those fees based on a quantum meruit theory? The Supreme Court held that quantum meruit was not before the court, as it did not have a robust-enough factual record on the fees J-M already paid, and remanded to the trial court. The Supreme Court provided guidance to the trial court on the quantum meruit analysis. Attorneys may be entitled to quantum meruit fees even under the cloud of an unwaived or improperly waived conflict of interest, which is a case-specific inquiry that focuses on whether the flawed conflict waiver was willful, whether any value had been provided to the client, and the amount of harm to the client. The Court held that there is no categorical rule barring quantum meruit fees when an unwaived or improperly waived conflict of interest exists. It depends on the circumstances.

Specifically: “When a law firm seeks fees in quantum meruit that it is unable to recover under the contract because it has breached an ethical duty to its client, the burden of proof on these or other factors lies with the firm. To be entitled to a measure of recovery, the firm must show that the violation was neither willful nor egregious, and it must show that its conduct was not so potentially damaging to the client as to warrant a complete denial of compensation. And before the trial court may award compensation, it must be satisfied that the award does not undermine incentives for compliance with the Rules of Professional Conduct. For this reason, at least absent exceptional circumstances, the contractual fee will not serve as an appropriate measure of quantum meruit recovery. . .  Although the law firm may be entitled to some compensation for its work, its ethical breach will ordinarily require it to relinquish some or all of the profits for which it negotiated.” (Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc., 2018 Cal. LEXIS 6399, *56.)

The trial court, therefore, should decide if such legal fees should be completely or partially forfeited.

The lesson here is straightforward and applies to all jurisdictions, not just California: conflict of interest waivers are very important. They should be as clear and specific as possible so that the client knows exactly what it is waiving. Blanket, general, waivers can be insufficient, creating the risk of attorneys losing millions of dollars in legal fees.

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