What Should a California Lawyer Do With An Inadvertently Produced Privileged Document?
2/6/20
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…
2/5/20
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…
Tips on Dealing With Pro Per Parties In California
1/15/20
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…
California Lawyers Should Not Lie
12/20/19
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…
Loss of Earnings Calculations – Experts – Damages – California
12/16/19
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…
The Ethical Duty of Technology Competence – The Day is Coming in California
12/5/19
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…
One if by land, . . . ZERO if by sea? (Apologies to Paul Revere) The Trapdoor of COGSA
11/18/19
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…
California Lawyers Cannot Churn Files
11/7/19
By: Greg Fayard Under the Rules of Professional Conduct applicable to California lawyers, attorneys are not supposed to do things where the substantial purpose is to delay, prolong, or cause needless expense. Under Rule 3.2, lawyers can be disciplined for churning a file for the substantial purpose of increasing legal fees. Examples of needless work…
Law Firms Under Increased Pressure, Increased Costs for Malpractice Claims
10/31/19
By: Gregory L. Blueford Per a survey conducted by insurance broker Ames & Gough earlier this year, professional liability is becoming more and more expensive with big money payouts. In its 9th annual survey of top 11 professional liability insurance companies, Ames & Gough found that the number of claims resulting in multimillion dollar payouts…
California Lawyers Now Have Duties To Clients “Who Got Away”
9/24/19
By: Greg Fayard Under Rule 1.18 of California’s Rules of Professional Conduct, lawyers must now protect the confidences of prospective clients–even if a formal lawyer-client relationship never materializes. That is, confidential information conveyed by a would-be client to a California lawyer, but where the potential client does not retain the lawyer, must be protected and…
California Lawyers Now Have A Duty of Diligence
9/13/19
By: Greg Fayard The prior rules of professional conduct for California lawyers required them to be competent but were silent on also being “diligent.” Under the latest version of the rules, California lawyers now have an express duty of diligence. (Rule 1.3) That is, California lawyers can now be disciplined by the State Bar for…
Does a California Lawyer Have to Convey All Settlement Offers to the Client?
7/31/19
By: Greg Fayard Not necessarily. Under Rule 1.4.1 of the ethics rules for California lawyers, in criminal matters, all terms and conditions of plea bargains or other dispositive offers, whether written or oral, have to be communicated to the client promptly. In non-criminal matters, all WRITTEN offers have to be promptly communicated. But what about…