Consult
the Ethics Hotline
Time is money and legal research takes time. California
legal ethics research can be particularly time-consuming. First, California is
not an ABA Model Rule jurisdiction, so dusting off your law school textbook or
simply Googling won’t always cut it. On top of that, the applicable California
law is often found in multiple sources, many of which are unfamiliar to most
lawyers. If you consult the California
Rules of Professional Conduct, that’s great, but you can’t stop there. Consider
the following questions:
- May an attorney use inadvertently disclosed confidential
information?
- Does the “no contact” rule permit an attorney to imply opposing
counsel’s consent?
- Is a “virtual law office” an ethical alternative for starting a
solo practice?
You can get assistance in researching these questions by
calling the State Bar of California’s Ethics Hotline. This
call-back service is free, staffed by live people and typically has a
turnaround time of one business day or less.
If you’ve never tried calling the Ethics Hotline, here’s the
official pitch: The Ethics Hotline is a confidential telephone research service
for attorneys. This service is staffed by specially trained paralegals who can
refer callers to the California Rules of Professional Conduct, State Bar Act
sections, published bar association ethics opinions and other relevant authorities.
Although the Ethics Hotline does not render opinions or give advice, this
guidance serves as a valuable resource that can jump-start legal ethics
research and aid lawyers in making informed decisions about their legal ethics
questions.
Attorneys can reach the Ethics Hotline from 9 a.m. to 5 p.m.
on weekdays by calling 800-238-4427 (800-2-ETHICS) from within California, or
415-538-2150 when calling from outside of California.
State
Bar’s 2013 Annual Meeting slated for Oct. 10 to 13 in San Jose
The State Bar’s 86th Annual Meeting will take
place in San Jose, the heart of Silicon Valley, from Oct. 10 through 13. The
meeting will allow attendees to pick up to 18.5 hours of Minimum Continuing
Legal Education (MCLE) credit and legal specialization, including all MCLE
subfields. There will be 145 seminars presented in three education tracks:
technology, practice skills and substantive law.
Scheduled speakers include author and legal affairs
editor-in-charge for Reuters Joan Biskupic; founding dean of the University of
California Irvine School of Law Erwin Chemerinsky; former White House Chief
Information Officer Theresa Payton; senior editor for Wired.com Kevin Poulsen;
two-time president of Costa Rica and Nobel Peace Laureate Dr. Oscar Arias
Sanchez; and San Francisco Chief Deputy City Attorney Therese M. Stewart. In
addition, attendees will have plenty of opportunities to network and learn
about the latest legal technology, publications, products and services at the
Annual Meeting’s Exhibition Hall.
For more information or to register online, visit the Annual
Meeting web page.
Training
(and MCLE credit) available for fee arbitrators
Interested in volunteering for
the State Bar (or your local bar association) as a fee arbitrator? The State
Bar’s Mandatory Fee Arbitration Program (MFA) will conduct trainings for
volunteer arbitrators throughout California.
Basic training will be conducted
in San Luis Obispo on Sept. 19, at the Madonna Inn. Basic training
sessions are three hours long and participants receive 2.75 hours of MCLE
credit, one hour of which qualifies as ethics credit.
An advanced training session will
be hosted by the San
Mateo County Bar Association on Sept. 26. The session is two hours
long and offers two hours of MCLE credit, one hour of which qualifies as ethics
credit. You must attend basic training before participating in an advanced
training session.
Minimum qualifications to serve
as an attorney arbitrator include five years active status as a member of the
State Bar, no record of public discipline and attendance at a basic training.
Questions can be directed to Doug
Hull, director of the State Bar’s MFA program, at 415-538-2015.
New
form mandatory for fee disputes with clients
As of July 1, attorneys who
encounter a fee dispute with a client are required to use the State Bar’s
updated version of the Notice
of Client’s Right to Fee Arbitration form.
The new form, approved by the
State Bar Board of Trustees on March 7, incorporates a handful of changes,
including clarifying who can request fee arbitration and making it clear that
more than one bar association may have jurisdiction to hear a fee dispute. The
new version also contains the State Bar seal, a change made to ensure lawyers
are providing clients with the correct form.
Business and Professions Code §
6201(a) requires that lawyers send the notice to their clients before or at the
time of initiating a lawsuit, or other action to collect fees. Attorneys are
legally required to use the State Bar’s form – not their own version put on
their firm’s letterhead.
Mandatory fee arbitration is
designed to reduce the number of fee disputes that end up in court. The vast
majority of fee disputes handled through the mandatory fee arbitration process
are resolved without filing an action in superior court, saving the courts
valuable time and money, said Doug Hull, director of the State Bar’s Mandatory
Fee Arbitration Program.
California Bar Foundation invites board applicants
The California Bar Foundation is
looking for attorneys, judges or members of the public to join its board of
directors.
The foundation supports full
and equal access to the law, invests in the next generation of California
lawyers, educates Californians about their rights and responsibilities under
the law and promotes philanthropy throughout the legal community.
The board consists of up to 35
members appointed by the State Bar Board of Trustees and three ex officio
members. Appointed members serve two-year terms and are expected to attend four
board meetings per year while actively participating on three board committees.
Each board member is expected to make a personally meaningful financial
contribution to the foundation and to actively participate in fundraising for
the foundation.
Applications, consisting of a
resume or CV and statement of interest and qualifications, must be submitted
via email by Aug. 16 to Communications and Development Associate, Carlos
Aguilar, caguilar@calbarfoundation.org.
Become a certified specialist
Start the process of becoming a
board certified specialist in California by registering for the next exam that
will be administered on Oct. 22.
The California Supreme Court
created the specialist program to increase public protection by identifying
attorneys who are specialists in key areas of law and by encouraging the
highest standards of practice in the profession.
The State Bar of California Board
of Legal Specialization offers the examination every other year in the
following areas of law: admiralty, appellate, bankruptcy, criminal, estate
planning, trust and probate, family, franchise immigration, legal malpractice,
taxation and workers’ compensation.
Attorneys who have been
practicing in a specialty area since January 2012 or earlier are eligible to
register. Register early to guarantee your preferred test center site in either
South San Francisco or Pasadena. Registration must be received by Sept. 10.
See the State Bar website to
download an examination application and to learn more about preparatory
materials and classes.
Significant changes to the law concerning
construction-related disability access claims
Senate
Bill No. 1186, authored by Senate President Pro Tem Darrell Steinberg
(D-Sacramento) and Senator Bob Dutton (R-Rancho Cucamonga), made significant
changes to the law, some of which impose State Bar disciplinary consequences on
lawyers. The bill contains an urgency clause, which means it was effective
immediately upon enactment Sept. 19, 2012, but some of its provisions didn’t go
into effect until Jan. 1. The bill includes the following provisions, all of
which govern construction-related disability access claims:
- A general prohibition against
sending a demand letter that includes a request or demand for money or an
offer or agreement to accept money, effective immediately
- A revision to the existing
mandatory written advisory that must be provided with a demand letter or
complaint, effective immediately
- A requirement that a lawyer
send a copy of a demand letter to the State Bar and the California
Commission on Disability Access, effective Jan. 1.
- A requirement that a demand
letter sent by a lawyer include the lawyer’s State Bar license number,
effective Jan. 1.
- A requirement that a lawyer
send a copy of a complaint to the California Commission on Disability
Access, effective Jan. 1.
- A requirement that demand
letters and complaints contain plain language sufficient for a recipient
business or property owner to determine the basis of alleged violations,
including: specific identification of each access barrier encountered; the
date of the incident; and a description of how each barrier interfered
with full and equal access, effective Jan. 1.
- A requirement that a complaint
be verified by the plaintiff, effective Jan. 1. A complaint filed
without verification is subject to a motion to strike
- A reduction of statutory
damages if specified conditions apply, effective immediately
- The establishment of procedures
for a mandatory evaluation conference, effective as to claims filed on or
after Jan. 1.
Help JNE move to paperless evaluations
The State Bar commission that
evaluates the governor’s candidates for judgeships is seeking the help of
attorneys to solicit information electronically.
For more than 20 years, the
Commission on Judicial Nominees Evaluation, commonly known as the JNE (“Jenny”)
Commission, has gathered information about candidates by mailing paper comment
forms to attorneys. Over the past 18 months, the commission has experimented
with the use of email to gather comments, but has encountered one barrier: the
spam filter. Although most of JNE’s emails do reach their intended recipients,
a significant number are blocked.
Attorneys can solve this problem
by authorizing the spam filters serving their email address listed with the
State Bar to accept the following email address: jneccf@calbar.ca.gov. Those who work in
legal offices can help by asking their IT specialists to authorize the JNE
email address for all spam filters serving office computers.
The electronic comment forms are
identical to the written forms. A hyperlink in the email takes the commenter to
a website where a form identical to the written comment form can be completed
electronically. The electronic comments are maintained confidentially, with
access only by investigating commissioners and staff. The use of email appears
to result in response rates at least as high as the use of written forms, and
it will save the State Bar tens of thousands of dollars a year in copying,
stationery and postage costs.
Bar rules book available for e-Reader
To facilitate a lawyer’s ability
to readily identify and address legal ethics issues, the State Bar has
published an e-Reader version of the Rules of Professional Conduct and the
State Bar Act. The e-Reader version of the rule book is compatible with the
Kindle Reader App, a free e-Reader application available for iPads, iPhones,
Blackberry phones, Android phones, Macbooks and PC laptops. The book also works
on all versions of Amazon.com’s Kindle.
The 2012 edition of the e‑Reader
version of the rule book can be purchased at Amazon.com for $6.99, a
significant discount from the price of the hardcopy book. It offers several
useful features including a search function, bookmarking, highlighting and
annotating. In addition, once downloaded to a tablet, smart phone or other
compatible device, the book can be accessed at any time, even without an
Internet or cellular data signal.
The bar’s rule book has been
published for more than 65 years. The 30-page edition published in 1949 has
grown to 411 hard copy pages. In addition to the rules and State Bar Act, the
book includes other related authorities such as selected Rules of Court, code
sections, the Federal Mortgage Assistance Relief Services Rule, the State Bar
Pro Bono Resolution, the Lawyer Referral Service rules, MCLE rules and more.
Legal ethics and technology resource page is online
The general Ethics Information page on
the State Bar website has an area dedicated to Ethics
and Technology ― a collection of resources that address professional
responsibility issues raised by the use of websites, email, chat rooms and
other technology. The resources include advisory ethics opinions, articles
and MCLE programs.
Most of the resources are
internal links to other pages on the bar’s website and some are external links
to local or specialty bar associations. The page is organized both by the type
of resource (ethics opinion, article, etc.) and by subject matter (law firm
websites, electronic files, social networking, etc.).
The service focuses on providing
basic legal research leads on how the rules apply to new technologies rather
than specific law office systems, hardware or software options. For the latter,
the resources of the State Bar’s Law Practice Management
& Technology Section can be considered.
Register a law corporation
Law corporations are required to
register with both the California Secretary of State and the State Bar of
California under Corporations Code §13404. Registration requirements are set
forth in Business & Professions Code §§6160 and 6161.
Rules and application materials
are available on the State Bar website. Information required to register a law
corporation includes:
- Proof of registration with the Secretary of State
- Submission of bylaws and a sample share certificate containing
the appropriate restrictions on share ownership
- A completed application that reports all the attorneys who are
associated with the corporation
- Submission of the Guarantee for Claims in the appropriate amount
- A Declaration of Compliance with Rule 1-400
Limited Liability Partnerships
providing legal services are also required to register with the State Bar. If
not registered, attorneys should be particularly aware of California
Corporations Code § 16306(f), which specifically removes the protection from
liability for claims based upon legal work.
Prior to registering with the
Secretary of State, be sure to check with the State Bar to determine if the
entity name complies with rules and has not already been registered. Additional
information is available at the Law
Corporations page, LLP
page, or the Law
Office Management page. For questions or help, send an email to LLP@calbar.ca.gov.
Create a surrogacy agreement
An “Agreement to Close Law
Practice in the Future” is available on the State Bar website for attorneys who
want to plan for the possibility they will not be able to continue to work. The
sample agreement, available to all lawyers, spells out the responsibilities of
the primary attorney and his or her successor in the case of death or
incapacity.
If a lawyer designates a
successor using the new sample contract, the designated surrogate goes to court
for appointment as the practice administrator who can take control and dispose
of the practice. A lengthy list of duties is part of the contract and includes
the ability to open mail, become a signatory on bank accounts, notify clients
and transfer files, pay bills and handle funds, and accept the original
attorney’s clients and cases. The practice administrator also will have the
power to sell the practice.
Feeling stressed? The Lawyer Assistance Program can
help
Attorneys struggling to cope with
the stress of a challenging economic environment or a difficult employment
situation are invited to contact the Lawyer
Assistance Program (LAP), which now offers new support programs in addition
to its traditional help with substance abuse and depression. Support is offered
for issues like stress, relationship and personal problems, grief and anxiety.
The LAP is designed for attorneys
who might wish to participate in a weekly group with other lawyers and would
like the support of a mental health professional (group facilitator) or a
trained peer counselor who is familiar with attorneys’ particular challenges.
The LAP also offers a free
Orientation and Assessment (O&A) to any attorney who wants professional
assistance to cope with personal problems, work problems, substance abuse or
other mental health issues. The O&A provides a confidential assessment
completed by one of the LAP clinicians located throughout the state. Referrals
to outside resources and an opportunity to participate in a LAP group for a
short period of time also are provided. There is no fee for this service.
Interested attorneys should call
877-LAP-4-HELP (877-527-4435) or contact LAP@calbar.ca.gov.
All calls are confidential.
Membership benefits from CalBar Connect
State Bar members can save up to
25 percent every time they rent with Hertz, a participant in CalBar Connect,
the State Bar’s member services and benefits initiative. Visit the Hertz
page for details.
CalBar Connect, which provides
discounts to all State Bar members, also offers a variety of insurance plans
including professional
liability insurance, workers’
compensation insurance, group
and individual disability plans, life
insurance, accidental death and dismemberment (AD&D), auto, home and business
office plans.
Opt out of lists
Attorneys who wish to remove
their names from lists the State Bar provides to qualified outside entities may
do so by logging on to My State Bar
Profile. Go to “Account Information” and select “Update my mailing
preferences (opt out).”