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 present 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 Internet
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.