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 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.
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 ― 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.