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Disqualification Upheld Where Attorney Represented Multiple Claimants Against Limited Fund
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Second Appellate Dist., Div. 6; case no. B283239, filed 9/4/18.
Attorney represented more than one client, all of whom sought damages from a pool of money controlled by another party. The trial court granted a motion to disqualify the attorney. The Court of Appeal affirmed, finding multiple reasons why the attorney should be disqualified, but focusing on the "self-evident conflict" when more than one client is seeking funds from the same source and there might not be enough money to satisfy each client's claim. The attorney did not inform the clients in writing of the conflicts and did not obtain their informed written consent, as required by current
Rule of Professional Conduct 3-310 and new
Rule 1.7.
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Six Month Suspension Recommended for Criminal Prosecutor's Failure to Turn Over Documents to Defense
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State Bar Court Review Dept., case no. 14-O-00027, filed 8/23/18, publication ordered 9/13/18. Criminal prosecutor brought criminal charges alleging child abuse and torture against two defendants. While both defendants were in custody, she instituted a "mail cover" to intercept all mail sent to the defendants in jail. One defendant plead to charges and trial was scheduled against the other defendant. Before trial, the criminal prosecutor intentionally failed to produce the documents received as part of the mail cover to the remaining defendant's lawyers, despite their requests. After the prosecutor was reassigned, her successor made disclosure. The State Bar Court hearing judge found the prosecutor culpable of violating
Bus. & Prof. Code section 6068(a) (attorney's duty to uphold the law) by intentionally failing to disclose the co-defendant's statements obtained from the mail cover at least 30 days prior to trial, in violation of Penal Code sections 1054.1 and 1054.7. She also found violations of Bus. & Prof. Code section 6106 (moral turpitude) by gross negligence and former Rule of Professional Conduct 5-220. The Review Dept. affirmed the culpable findings but reduced the recommended discipline from one year of actual discipline to six months.
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State Bar Board of Trustees Tables Proposal for "Consumer Alert" Badge in All Discipline Prosecutions
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The Regulation and Discipline Committee (RAD) of the State Bar Board of Trustees voted on September 13 to table the proposal of the Office of Chief Trial Counsel (OCTC) to require a "Consumer Alert" badge on the State Bar Membership Records page of every attorney against whom discipline charges are filed and every attorney facing criminal prosecution on felony charges. The proposal was table after RAD received negative comments from several local bar associations and the Association of Discipline Defense Counsel. Comments focused on the unfairness of tarnishing a lawyer's reputation before charges were proven. OCTC representatives indicated that they will re-work the proposal in light of the comments and return with a new proposal.
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California Supreme Court Approves Revised Comments to New Rule of Professional Conduct 1.2.1
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On Friday September 28, the California Supreme Court approved new comments to new Rule of Professional Conduct 1.2.1, which becomes effective 11/1/18. The new Rule addresses California lawyers ethical duties regarding advising or assisting a violation of the law and the new comments are intended to provide guidance on how to advise clients where California law differs from tribal or Federal law, as in the treatment of cannabis.
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Governor Signs State Bar Fee Bill Designating "Members" As "Licensees" and Confirming Name of the California Lawyers Association
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Governor Brown has signed AB 3249. The Legislation authorizes the State Bar to collect licensing fees of $390 from lawyers in 2019. It also makes a number of other changes, including amending the Business and Professions Code to replace references to "members" with "licensees". These changes reflect the change in status of the State Bar to a pure regulatory agency. The bill also confirms the name of the new California Lawyers Association, which will henceforth discharged the trade association functions formerly part of the State Bar of California. The bill would also allow the State Bar Court to place an attorney convicted of a crime and incarcerated on inactive enrollment for the period of the incarceration.
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New Rules of Professional Conduct Effective 11/1/18.
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The California Supreme Court issued an order on May 9, 2018 approving 62 new California Rules of Professional Conduct, effective November 1, 2018. The new Rules follow the American Bar Association Model Rules numbering system and adopt much of the text of the Model Rules, along with many California innovations. These Rules will dramatically change the way California lawyers practice -- especially new Rule 1.7 on conflicts, new Rule 1.15 on handling clients funds, new Rule 4.3 on contact with represented persons, new Rules 5.1, 5.2 and 5.3 on supervising subordinate lawyers and non-lawyers and new Rules 7.1-7.5 on advertising and solicitation. But there is much more in the new Rules that you need to know about. Below is link the Court's order approving the Rules and the text of the new Rules.
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California Supreme Court Adopts Attorney Fingerprinting Rule
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New California Rule of Court 9.5.5 Requires All Attorneys to be Fingerprinted Before December 1, 2019
On June 1, 2018, the California Supreme Court adopted new California Rule of Court 9.9.5 requiring all California attorneys to submit new fingerprints to the State Bar by December 1, 2019. Failure to do so. Failure to be fingerprinted if required by this rule may result in involuntary inactive enrollment pursuant to Business and Professions Code section 6054, subdivision (d). Attorneys are required to bear the cost of the fingerprinting.
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David C. Carr
David C. Carr is a lawyer in private practice in San Diego, California. Since 2001 his practice has emphasized representing attorneys in matters involving legal ethics and the law of lawyering, including discipline defense, bar admissions, attorney fee disputes, attorney professional responsibility and ethics advice.
Mr. Carr graduated from Loyola Law School in 1986 and was admitted to the California Bar that year. After practicing in business litigation and commercial law, Mr. Carr spent 12 years as staff attorney, discipline prosecutor and manager at the State Bar of California, before returning to private practice in 2001.
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