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You Need to Know

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 don’t go into effect until Jan. 1, 2013.  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, 2013
  • A requirement that a demand letter sent by a lawyer include the lawyer’s State Bar license number, effective Jan. 1, 2013
  • A requirement that a lawyer send a copy of a complaint to the California Commission on Disability Access, effective Jan. 1, 2013
  • 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, 2013
  • A requirement that a complaint be verified by the plaintiff, effective Jan. 1, 2013.  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, 2013

State Bar to receive public comments

Members of the public and legal profession will have an opportunity to provide input on the attorney discipline process, the admissions process and other issues concerning attorney competence at two public hearings next month.

The hearings will be held at the State Bar of California’s offices:

  • 10 a.m. Tuesday, Dec. 11, 1149 S. Hill St., 7th floor, Los Angeles
  • 10 a.m. Thursday, Dec. 13, 180 Howard St., 4th floor, San Francisco

The hearings will conclude when all speakers have addressed the panel of State Bar representatives. Those who wish to speak at the hearing and/or present written materials should contact Lauren McCurdy at 415-538-2107, lauren.mccurdy@calbar.ca.gov by Tuesday, Dec. 4.

Help JNE move to paperless evaluations

The State Bar commission that evaluates the governor’s candidates for appointed 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. While most of JNE’s emails 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.

Updated 2012 bar rules book now 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 new 2012 edition of the eā€‘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.

New legal ethics and technology resource page is online

The general Ethics Information page at the State Bar website has added a new area dedicated to Ethics and Technology ā€• a collection of resources that address professional responsibility issues raised by the use of websites, email, chat rooms and other technologies. 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 new 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 new 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, it is advisable to check with the State Bar to ensure that 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. Assistance is available at 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 an 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, 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).”

Members also may email their opt-out request to memrec@calbar.ca.gov. Include your bar number.