Revised California Sample Fee Agreement Forms Out for Public Comment

The State Bar of California is seeking public comment on proposed revisions to the sample fee agreement forms.  The forms have been revised to conform to new California Rules of Professional Conduct that became effective on November 1, 2018.  Included are changes addressing new Rule 1.15 regarding deposit of advanced fees into trust and flat fees, new Rule 1.5.1 on fee splitting between lawyers and a form addressing mediation confidentiality unde new Evidence Code section  1129(a), required when representing a client in mediation.

Drafting an appropriate fee agreement should not be a casual exercise but one given a lot of thought.  The State Bar form fee agreements offer a place to start and the revised versions will continue to do so, even if modified after public comment.

Deadline

May 1, 2019

Direct comments to

Isabel Liou
Office of Professional Competence, Mandatory Fee Arbitration Program
180 Howard Street
San Francisco, CA 94105
Phone: 415-538-2020
Email: feearb@calbar.ca.gov

 

New California Ethics Opinion: Lawyers Seeking Ethical Advice

The Regulation and Discipline Committee (RAD) of the State Bar Board of Trustees has approved Formal State Bar Ethics Opinion 2019–197,

The Opinion discusses a lawyer’s ethical obligations when seeking advice regarding ethics issues, either from an independent counsel or another lawyer in the lawyer’s firm.  It concludes that the “act of seeking legal advice concerning ethical obligations owed to a client by itself does not create a conflict with the client”.  Once “a lawyer becomes aware that he or she has committed an error that could prejudice the client, the lawyer ethically may seek legal advice concerning obligations to the client and options available, but must comply with the rules governing disclosure to clients and conflicts.” The opinion interprets new Rules of Professional Conduct 1.4 (communication) and 1.7 (conflicts of interest regarding current clients).

The Opinion serves the laudable goal of inducing lawyers to obtain ethics and risk management advice sooner rather later.  It also telegraphs the message that serious mistakes that constitute significent developments must be to communicated to clients.  Those two processes should work hand and hand to control damage to the client and to the lawyer and law firm.  There is actually a unity of interest between lawyer and client that might not be readily apparent.

New Summary Disbarment: Now With Extra Summary!

Keaton largeCalifornia lawyers who commit felony crimes found their sledding a bit tougher on January 1, 2019. On that date new amendments to Business and Professions Code section 6102(c) went into effect, expanding the definition of crimes subject to summary disbarment. Summary disbarment, as the name implies, is disbarment without a hearing where the attorney is allowed to present evidence at mitigating circumstances. The prior version of the statute provided for summary disbarment for felony crimes that involved moral turpitude per se, crimes that involve moral turpitude in every instance. The new version of the statute provides for summary disbarment upon not just for conviction of crimes of moral turpitude per se but also for felony crimes that involve moral turpitude in the surrounding facts and circumstances.

The summary disbarment statute has been around for a long time and it’s gone through many changes. Originally it provided for summary disbarment upon conviction of either a misdemeanor or felony involving moral turpitude (see In the Matter of Rothrock (1940) 16 Cal.2d 449. 451. In the 1950’s, perhaps reflecting a more lawyer-friendly environment, the statute was changed to provide for felony disbarment in crimes where “(1) An element of the offense is the specific intent to deceive, defraud, steal, or make or suborn a false statement” and “(2) The offense was committed in the course of the practice of law or in any manner such that a client of the attorney was a victim.”  In the Matter of Lilly (Review Dept. 1992) 2 Cal. State Bar Ct. Rptr. 473, 478; 1993 WL 277528.  The statute was amended in 1997 to its penultimate formulation, removing the requirement that the crime victimized a client or occurred in the course of the practice of law and expanding it to any crime of moral turpitude.

Moral turpitude is an “elusive concept incapable of precise general definition.” (In re Higbie (1972) 6 Cal.3d 562, 569. Older case law defined moral turpitude broadly as “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.” In re O’Connell (1920), 184 Cal. 584, among many other different formulations (see People v. Castro (1985) 38 Cal.3d 301, 333 (J. Bird, dissenting): “As one commentator stated, “[j]udicial definitions of moral turpitude are so imprecise that it is only a matter of conjecture   whether a particular crime involves it.” (Note, Entrance and Disciplinary Requirements for Occupational Licenses in California (1962) 14 Stan.L.Rev. 533, 542.) With respect to attorney discipline, the definition has been refined through the years to a slightly more precise formulation: “[I]n attorney discipline cases; moral turpitude should be defined with the aim of protecting the public, promoting confidence in the legal system, and maintaining high professional standards.”  In Re Grant (2014), 58 Cal. 4th 469, 476.  Once we get away from the relative certainty of crimes involving dishonesty and intentionally violence, moral turpitude evokes Justice Potter Stewart’s famous (paraphrased) statement on obscenity:  “I can’t define it, but I know it when I see it.”

So if the crime itself doesn’t necessarily involve moral turpitude, what does moral turpitude in the surrounding circumstances mean?  In Re Alkow (1966) 64 Cal.2d 838 involved an attorney convicted of voluntary manslaughter, which is not a crime of moral turpitude per se (see People v. Coad (1986) 181 Cal. App. 3d 1094, 1104).

“After his driver’s license expired in 1961 Alkow made one attempt to secure another license, but it was refused on the ground that he had defective vision.  From the time his license expired until he committed the manslaughter, he was convicted of more than 20 traffic violations, at least 11 of which were for driving without a license. On December 5, 1963, he pleaded guilty to a violation of right of way and driving without a license, and on December 6, 1963, he pleaded guilty to driving without a license and without evidence of registration. He was placed on probation for one year in each action upon the condition that he not violate any laws. On January 16, 1964, he pleaded guilty to a failure to observe a boulevard stop and driving without a license and was placed on probation for one year upon the condition that he not violate any laws and upon the further specific condition that he not drive without a license.

About 6 p.m. on February 15, 1964, while driving without a license in violation of the terms of his probation and the law, he struck and killed a woman pedestrian in Santa Ana. His defective vision was one proximate cause of the accident. Although he did not intend the accident, he knew his vision was defective and reasonably must have known that injury to others was a possible if not a probable result of his driving.

Alkow, at 839–40.  A more contemporary example is the result in an unpublished State Bar Court Review Dept. opinion in In the Matter of Wyatt, State Bar Court case no. 11–C–17662,  2014 WL 642699, filed February 7, 2014.  Wyatt plead nolo contendere to felony vehicular manslaughter while intoxicated (Penal Code section 191.5.)  Wyatt lied to a police officer about how much he had to drink (his BAC was .18%).  Both the hearing judge and the Review Department found that lie to be moral turpitude in the surrounding circumstance.

An example on the other side of the ledger is In Re Fahey (1973) 8 Cal.3d 842, where an attorney’s repeated failure to file tax returns over a period of years was found not to involve moral turpitude in the surrounding circumstances because expert psychiatric testimony evidence was introduced suggesting that the conduct was the result of Fahey’s “suffering from a psychoneurotic condition that substantially impaired his ability to take proper care of his personal financial affairs.” Fahey, at 850.

Some might say that the change in section 6102(c) isn’t that great since applicable discipline standards (Standard 2.15) provide that disbarment is the presumptive discipline for a felony involving moral turpitude in the surrounding circumstances.  But Wyatt at least had the opportunity to demonstrate mitigation, wanting though it was found, something future respondents in his position won’t enjoy.  There will be a hearing in every felony conviction to determine if it qualifies for summary disbarment and if it does, no further hearing to discuss mitigation.

Over time, the discipline system has gotten less and less sympathetic to attorneys who commit crimes.  This latest change certainly won’t be the last in that progression.  There has never been a worse time to be both an attorney and criminal. But that will change.

New San Diego Ethics Opinions on Lawyer Marketing

San diego skyline

A pair of new ethics opinons from the Legal Ethics Committee of the San Diego County Bar Association addressing lawyer marketing issue have been approved and published.

Opinion no. 2019-1 discusses attorney’s marketing of legal forms. It asks:

Under what conditions may lawyers provide electronic form-based products to customers?

2019-1 concludes: “To the extent that lawyers sell form-based solutions, they must either provide an electronic form that the customer customizes without recommendations, or form an attorney-client relationship. A lawyer may offer a form product without creating an attorney-client relationship so long as the lawyer provides no advice, including which form to use or how to complete it.”

Opinion no. 2019-2 addressing attorney participation in marketing programs similar to Avvo’s now defunct Avvo Legal Services program.  The Opinon asks:

What legal ethics regulations and standards must a California lawyer consider when deciding whether to participate in a marketing program where consumers obtain an immediate, brief, limited-scope telephonic consultation with a lawyer selected by the program? If that program charges potential clients a flat fee for a limited scope of legal services that includes both the fee for legal services and the program’s marketing fee, will the lawyer’s participation run afoul of ethics rules and regulations?

The Opinion’s digest concludes:

Rules 5.4 and 7.2 preclude a lawyer from paying for cases, whether by a division of fees or as separate payment for a case. Likewise, Business and Professions Code section 6152 precludes the use of runners or cappers in the solicitation or procurement of business for an attorney. Certified legal referral services are designed to facilitate the process of lawyer selectionby identifying lawyers who meet minimum criteria.

A lawyer’s payment of a fee to a lawyer referral services that does not qualify under the State Bar Rules is a violation of Rule 5.4(a)(4), which prohibits a lawyer from paying a nonlawyer for recommending the lawyer’s services. A lawyer-client relationship initiated via a third-party introduction does not relieve the lawyer of the responsibility of performing a conflict check pursuant to Rule 1.7. Where payments are made to a lawyer by a third party, the lawyer must obtain the client’s informed written consent pursuant to Rule 1.8.6(c). Failing to obtain informed consent for third-party payments and commingling fees for legal services with “marketing fees” or other property is a violation of California’s legal ethics regulations.

Rule 5.4 prohibits a lawyer or law firm from sharing fees directly or indirectly with an organization that is not authorized to practice law. Unethical fee-sharing results where a consumer pays legal fees directly to a third party, which holds and controls the fees until services have been completed, and which then splits the fee with a lawyer.

These opinions arrive against the backdrop of fermenting and controversial change in the profession over how legal services are marketed.

 

Down To Serfdom

The ABA Journal has the story about a law firm suing  an associate who signed a employment contract providing for three year term. The associate left after just one year. The contract includes a stipulated damages clause that requires the payment of $10,000 if the associate leaves before the end of the three years. A law firm had made a loan to the associate of $2,500 dollars for bar exam expenses. It deducted the loan and then liquidated damages from her last paycheck, but the associate came up $7,400 dollars short.  The law firm claims that it spends considerable resources on the training of new associates.

Would parties to such a contract in California violate Rule of Professional Conduct 5.6(a)(1)?

(a) Unless authorized by law, a lawyer shall not participate in offering or making:.. a partnership, shareholders, operating, employment, or other  similar  type of agreement  that  restricts  the  right  of  a  lawyer  to  practice  after  termination  of the   relationship…

Unknown.  But the words of a legal recruiter quoted in the story ring true: this can’t be good for firm recuiting.

 

 

Pictures of Lilly — Implied Exceptions to Confidentiality in California

California statutory law of attorney duty enshrines an extremely strict standard regarding attorney confidentiality, Business and Professions code section 6068(e). it’s romantic language requires an attorney to keep the confidence and secrets of the client “at every peril” to the attorney.  The only exception recognized in the statute is a safe harbor when an attorney reports confidential information creating a reasonable belief that a client intends to commit a criminal act reasonably likely to result in death of great bodily harm.

The evidence code also a different set of statutes Enacted by  the legislature that protects attorney-client confidentiality with the attorney-client privilege, Evidence Code section 952.  There are eight statutory exceptions to the lawyer-client privilege The exception that most closely matches exception section 6068(e)(2) is evidence code section 956.5, originally enacted in 1993. The evidence code states six other exceptions to the lawyer-client privilege, none having a corresponding sub-section in 6068(e).

In People v. Dang (2001) 93 Cal.App.4th 1293, the Second District Court of Appeal found that Dang’s trial attorney could testify about the statement Dang made “that he was going to try to “pay off” one or more witnesses and that he would “whack” the witnesses if he was not successful in bribing them” was admissible under section 956.5. Dang, at 1295.  The Court noted the conflict between section 6068(e) and section 956.5. The Court also noted that the California Supreme Court rejected proposed Rule of Professional Conduct 3-100 in 1993, which would have provided for the death great bodily harm exception. Nonetheless, the evidence was clearly admissible under the Evidence Code exception, and the trial court did abuse its discretion by admitting the testimony of Dang’s former lawyer.

As part of its analysis, the Court noted that the “that the State Bar Court has held the duty of confidentiality under Business and Professions Code section 6068, subdivision (e) is modified by the exceptions to the attorney-client privilege codified in the Evidence Code.” Dang, at 1298–99.  citing Fox Searchlight (which found an exception) which in turn cites In the Matter of Lilly (Review Dept. 1993), 2 Cal. State Bar Ct. Rptr. 473, 1993 WL 277528.

Unfortunately, Lilly doesn’t really say that. The closest it comes is dicta that remarks in passing that exceptions to the lawyer-client privilege exist while trying to decide if a deceased former client comes within the scope of the former summary disbarment statute that provided for that draconian remedy if a client of a lawyer is a victim (Lilly, at 479).

 

However much the Court of Appeal relied on the slim reed that is Lilly, following Dang, in short order, (1) the legislature amended section 6068(e) to conform to Evidence Code section 956.5 and (2) the State Bar of California promulgated former Rule of  Professional Conduct 3-100 (current Rule 1.6) to the California Supreme Court, which approved it, presumably because it was accompanied by its legislative twin.

The Legislature could have amended section 6068(e) to accommodate the other seven exceptions to the privilege codified in the Evidence Code, but it chose not to.  Only death-great bodily harm made the cut.  So does the principle of implied exceptions to confidentiality hold water?

The exception of most interest to attorneys is probably Evidence Code section 958, which excepts communications relevant to a breach of duty by either lawyer or client, sometimes called the “attorney self-defense exception” (see Styles v. Mumbert (2008) 164 Cal. App. 4th 1163, 1168).  On the ethics side it is well articulated in ABA Model Rule 1.6(b)(5): “A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:…to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client”…

The advent of online comments through websites such as Yelp and Avvo has pushed some urgency into the discussion, especially as online comment have more and more come to be part of lawyer marketing.  Attorneys are steamed, and justifiably so, at being tarnished in comments that are, by nature, one-sided and often inaccurate. It would be nice having the guidance of a more elaborated Rule 1.16 written for the 21st century, but we can’t have nice things; instead, because of a law not written in the last century, but the century before the last century, we are left, at most, with some vaporous case law on “implied exceptions.”

Court of Appeal Cites Lawyer to State Bar for Referring to Female Judge as “Succubistic”

Division 3 of the Fourth District Court of Appeal has referred a lawyer to the California State Bar based on the lawyer’s reference to a female judge’s ruling as “succubustic.”  Citing the definition of a succubus “as a demon assuming female form which has sexual intercourse with men in their sleep” the appellate court published the part of the opinion finding misconduct (Martinez v. O’Hara, Fourth District, Div. 3, case no. G054840, filed 2/27/19) “to make the point that gender bias by an attorney appearing before us will not be tolerated, period.”

The court referred the attorney to the State Bar on the authority of Code of Judicial Ethics Canon 3D(2):  “Whenever a judge has personal knowledge, or concludes in a judicial decision, that a lawyer has committed misconduct or has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action, which may include reporting the violation to the appropriate authority.”  Despite the seemingly optional language regarding reporting misconduct, the court interpreted the advisory committee commentary accompanying canon 3D(2) as imposing a mandatory reporting requirement to the State Bar regarding lawyer misconduct.

The court cited Business & Professions Code section 6068(b) requiring an attorney to maintain the respect due the courts, as well as new Rule of Professional Conduct 8.4.1 addressing gender bias. Even though the attorney’s misconduct predated the enactment of the rule, the court concluded that the attorney’s conduct would have violated the rule.  In addition to his characterization of the judge’s ruling, the attorney accused

“the trial court of intentionally refusing to follow the law… and the statement in the notice of appeal suggesting the trial court tried to prevent plaintiff from receiving notice of the signed judgment in an effort to thwart appellate review of its decision, also made without any support in the record, constitute reportable misconduct.

The court also cited the attorney’s use of other colorful nomenclature in the appellate  briefs

We further note that many of the words and phrases in the notice of appeal have no place in a court filing. We cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words “disgraceful,” “pseudohermaphroditic misconduct,” or “reverse peristalsis”in the notice of appeal.

The Office of Chief Trial Counsel takes complaints from judges seriously. Part of its public protection mission includes protecting the integrity of the justice system. This will be one to watch.

State Bar Complaints about Political Speech

Florida Congressman and lawyer Matt Gaetz is the latest public figure slash lawyer to be targeted over something incredibly stupid that he or she said or did. In Representative Gaetz’s case, the stupid was tweeting a comment that appeared to be aimed at dissuading a witness from testifying before a congressional committee.  The Florida Bar has properly acknowledged receipt of this complaint and that an investigation of Gaetz is underway.

State Bar complaints  (or grievances, as they are known is some states) have also been filed against Kellyanne Conway and Jeff Sessions, based largely on the theory that their alleged public misrepresentations violated their duty of honesty as lawyers. More than one ethics lawyer has found the Conway complaint ill-founded, notably Steven Lubet, and the law professors who filed apparently acknowledged that bar complaints targeting public speech could lead to “mischief or worse.” While enforcing ethics rules, the discipline systems are not the ethics police; they are consumer protection agencies charged with protecting against unfit practitioners who are or might harm clients.  Policing political speech is far removed from their priority list. Complaints based on dishonest political speech are not likely to gain traction with the State Bar of California, except as noted below.

Representative Gaetz presents a different case.  When speech can be a crime, as in speech intended to dissuade a witness from testifying, or extortion, the regulatory agencies take notice.  The public’s confidence in the legal profession requires that criminal conduct by attorneys be sanctioned, reflected in Rule of Professional Conduct 8.4(b).  Thus, the extremely prompt response from the Florida Bar that merited scorn from the Congressman’s chief of staff. Did Representative Gaetz believe that he was just throwing out some partisan red meat? Because he is a lawyer, his intent should be scrutinized closely.

The Perils of Rule 9.20

One of the most dreaded consequences of disciplinary action is the requirement that the disciplined attorney comply with California Rule of Court 9.20.

Rule 9.20 requires  the disciplined  lawyer to do a number of things, including giving notice by certified mail of the suspension to all clients, opposing counsel, and filing this notice in every court where the attorney has pending matters.  Often overlooked are the other requirements in the role they require the disciplined attorney to return all unearned fees and return all client papers and property, as required by Rule of Professional Conduc1.6(e). Finally, the rule requires that a declaration be filed attesting to the attorney’s compliance with the rule.

Compliance with rule 9.20 is typically ordered where the attorneys placed on interim suspension pursuant to a criminal conviction or is going to be actually suspended for a period of 90 days or longer, although it has sometimes been ordered where the actual suspension is less than 90 days.

This rule strikes fear in the heart of lawyers for two very good reasons.  First, the notification the clients is can be a practice killer in a solo or small from practice. Once the clients have been notified and found other attorneys, they are not likely to ever come back to the disciplined attorney, who essentially has to build the practice from scratch after the suspension ends. Second, the sanction for failing to comply with real 9.20 is harsh; subsection  (d) of the rule provides that

A disbarred or resigned licensee’s willful failure to comply with the provisions of this rule is a ground for denying his or her application for reinstatement or readmission. A suspended licensee’s willful failure to comply with the provisions of this rule is a cause for disbarment or suspension and for revocation of any pending probation. Additionally, such failure may be punished as a contempt or a crime.

A complete failure to comply with the role is generally going to result in disbarment. Bercovich v. State Bar (1990) 50 Cal. 3d 116, 131. Lesser failures will still result in substantial discipline including a period of actual suspension.

An example is a recent unpublished* Review Department decision In the Matter of Smith (State Bar Court case no. 17-O-00668, filed February 12, 2019.)  Smith was ordered to comply as a result of being placed on interim suspension following a felony criminal conviction (see Bus. & Prof. Code section 6102(a)). Smith was incarcerated at the time the State Bar court issued the interim suspension order in February 2016 and did not comply with the rule until July 2016, although Smith knew that he has been placed on interim suspension.  Unfortunately, his compliance declaration was rejected for filing because it did not bear an original signature. Another rule 9.20 declaration bearing an original signature was filed in October 2016 was filed in October 2016.   Both of these declarations stated that Smith had contacted all of his clients within 30 days of his release from jail in April 2016. This statement turned out to be inaccurate because two clients were notified after the 30 day period.

Rule 9.20 (a) prescribes tight deadlines for compliance.  Clients, opposing counsel, and courts must be notified within 30 days of the date of the order. The compliance declaration must be filed within 40 days of the effective date of the order  in court.  There has been some confusion in the past with Rule 9.20 orders that required compliance within 30 days of the  “effective date”  of the order, given that California Rule of Court 9.18 states that discipline orders are effective 30 days after they’re filed. Case law makes it clear that rule 9.20 dates run from the day the orders filed , not any subsequent date, despite the language of Rule 9.18. Athearn v. State Bar (1982) 32 Cal.3d 38, 45. This is a trap for the unwary that has snared more than one disciplined lawyer.

Smith unsuccessfully tried to argue in his brief to the Review Department that only the Supreme Court could issue an order requiring rule 9.20.  He dropped that argument at oral argument, apparently after reading California Rule of Court 9.10(a), which delegates the statutory powers in section 6102 to the State Bar court  Supreme Court.

The Review Department ultimately upheld the hearing judge’s recommendation of six months actual suspension, finding that Smith violated Bus. & Prof. Code section 6103 in failing to timely comply with the interim suspension order.  It also recommended that he be ordered to comply with Rule 9.20 again as part of that discipline.  And just for good measure, it included this additional condition of probation:

For a minimum of one year after the effective date of discipline, Smith is directed to maintain proof of his compliance with the Supreme Court’s order that he comply with the requirements of California Rules of Court, rule 9.20(a) and (c).  Such proof must include the names and addresses of all individuals and entities to which notification was sent pursuant to rule 9.20; copies of the notification letter sent to each such intended recipient; the original receipt and tracking information provided by the postal authority for each such notification; and the originals of all returned receipts and notifications of non-delivery.  Smith is required to present such proof upon request by OCTC, the Office of Probation, and/or the State Bar Court.

As if there was any doubt, the State Bar Court views Rule 9.20 compliance so seriously that it is willing to go beyond the requirements of the Rule itself and make it a probation condition.

* Unpublished cases are not citeable precedent in State Bar Court (State Bar Rule of Procedure 5.159).

New Ethics Opinion: Technology Assisted Review

The San Diego County Bar Association has published an ethics opinion relevant to electronic discovery issues.  San Diego County Bar Association Formal Ethics Opinion 2018-3 poses the question:

To what extent may lawyers use technology assisted review to identify documents to be produced in response to demands for production requiring analysis of voluminous documents?

The opinion concludes that:

Whereas lawyers may use technology assisted review products to identify responsive documents for productions, they should communicate with their clients about such use, must take care to understand the products they use, and may not cede their independent judgment.

The opinon’s scenario describes the use of so-call TAR – technology assisted review, a system that uses artificial intelligence to identify responsive documents, a process that is described as entailing continuous active learning. “Lawyer has used the particular technology before. After Lawyer provides the recommended amount of seed sets appropriately identifying documents as responsive or not responsive, the software uses the information to analyze the remaining documents. Lawyer next conducts a random review of the documents identified, provides some additional seed set samples to eliminate some documents erroneously identified as being responsive, and runs the results again. Lawyer then produces the several hundred thousand documents identified as being responsive.”

The opinion offers useful guidance to lawyers about the ethical parameters of using cutting edge techology.  The full opinion is available here.