Welcome to the Ethics Lawyer Newsletter for April 2018!
Civil Sanction Orders Cannot Be Collaterally Attacked in Discipline Proceeding
In the Matter of Collins, Review Dept. State Bar Court, case no. 16-O-10339, filed 3/28/18. Attorney represented a client in civil litigation. Client refused to respond to any discovery requests from the other side, leading to five sanctions orders issued against the client and the “Law Office of Joseph Patrick Collins.” The Office of Chief Trial Counsel (OCTC) charged attorney with five counts of failing to obey court orders (Bus. & Prof. Code §6103), and attorney stipulated to all of the predicate facts as well as culpability (but not discipline.) Following a one-day trial on aggravation, mitigation, and the level of discipline, a hearing judge sua sponte dismissed the case, finding the sanctions orders were void or voidable and attorney had no obligation to comply with them. The Review Dept. reversed. The sanction orders cannot be collaterally attacked in the discipline proceeding and the attorney is bound by the stipulation that he entered into.
Legal Malpractice Statute of Limitations Not Tolled by Plaintiff’s Incarceration
Austin v. John Michael Medicis, et al., Second App. Dist., Div. 3, case no. B277546, filed 3/21/18. Plaintiff hired law firm to represent him in a serious criminal matter. Law firm allegedly abandoned him before trial in September 2009 and he was convicted on all charges. Plaintiff filed legal malpractice and fraud case against law firm in September 2013. Law firm’s demurrer on statute of limitations grounds was sustained without leave to amend. Plaintiff appealed and the Court of Appeal affirmed. Plaintiff did not plead any ground for tolling under Code Civ. Proc. §340.6 except his incarceration and that is not among the statutory grounds for tolling.
State Bar Issues Attorney Self Reporting Guidelines in Anticipation of Fingerprinting Requirement
The State Bar has filed the new proposed Rule of Court with the California Supreme Court that would require all attorneys to submit new fingerprints to the State Bar. Anticipating that the rule will be approved, the State Bar has issued guidelines for attorneys to self-report certain criminal convictions before those fingerprints are checked against Department of Justice records. The Guidelines are here and they track the attorney self reporting requirements in Business and Professions Code section 6068(o)(3). The State Bar believes that thousands of California attorneys are practicing law in spite of a criminal conviction.
Public Comment: Proposed State Bar Ethics Opinion14-0003: Settling Before Withdrawal
The State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) is seeking public comment on proposed new ethics opinion interim no. 14-0003. The opinion whether an attorney who is required to withdraw from representing a client under rule 3-700(B) because the client’s claim or defense lacks merit, may ethically settle the action before withdrawing from the representation? The opinion interprets rules 3-200 and 3-700 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6068(c), 6068(d), 6106, and 6128(a).
The opinion digest states: An attorney who has concluded that a client’s claim or defense lacks merit and cannot be pursued without violating the Rules of Professional Conduct or State Bar Act is required to withdraw from the representation. Before withdrawing, the attorney must take reasonable steps to avoid reasonably foreseeable prejudice to the client. Such reasonable steps may include settling the claim. However, the attorney may not make false statements to the opposing party about the merits of the client’s case during the settlement process. Nor may the attorney settle if the attorney knows that information bearing on the merits, which had to be disclosed to the opposing party, was not disclosed.
The deadline for comments is 5 p.m. May 3, 2018
Direct comments to
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard St.
San Francisco, CA 94105-1639