Ethics Lawyer David C. Carr

Newsletter June 2017

Welcome to the Ethics Lawyer Newsletter for June 2017!

Lowering Bar Passage Rate Criteria Risks Increase In Discipline, Pepperdine Professors Say

Two Professors at Pepperdine Law School have published a controversial law review article arguing that lowering bar passage criteria risks increasing the numbers of lawyers subject to discipline.  This article was published as deans at some California law schools are urging that the Committee of Bar Examiners reduce the necessary passing score on Multi-State Bar Examination, which takes up one day of the new two-day bar examination the goes into effect this year, replacing the three-day bar examination used for many decades.  The call to lower the passing score is being prompted in part by the declining bar examination passage rates.

State Bar Redesigns Web Site to Emphasize Complaints

The State Bar of California has redesigned it’s website  The new design contains the same content as the old website but with a contemporary less-cluttered design that appears to be more mobile-friendly.  Consistent with the State Bar’s recent emphasis on its public protection function, the landing page of the website also features a prominent “Resources for Consumers” section including a link to information regarding filing a complaint of attorney misconduct.  The new website also marks the demise of the California Bar Journal, which will no longer be published.  Instead, information, including summaries of recent discipline cases, will be continually updated on the new site.
Important Links:
State Bar Ethics Opinions
Rules of Professional Conduct
State Bar Court
Fee Arbitration Advisories
Attorney Search

Expanded Vexatious Litigant Order Appropriate Where Attorney Acts As “Mere Puppet” for Vexatious Litigant

Kinney v. Clark, Second Appellate District, Div. One, case no. B265267, filed 6/14/17.  Appellant, a disbarred attorney, had also been declared a vexatious litigant, as provided in Code Civ. Proc. section 391.7, as well as in Federal court.  The Court of Appeals found this appeal frivolous as well (appellant’s  “recycled arguments have no more merit now than they did the numerous times he raised them before'”)  and dismissed the appeal.  While the statute contemplates self-represented litigants, case law provides that the prefiling order may be extended to filings made on behalf of the vexatious litigant by an attorney where the vexatious litigant hires attorneys who are “mere puppets.”  The  Court of Appeal dismissed the appeal and ordered that a copy of the opinion be sent to the State Bar in case the appellant sought reinstatement in the future.  The Court declined to sanction the vexatious litigant’s order, stating that it was giving him “the benefit of the doubt.”

Public Comment: New Proposed Opinion on Attorney Directory and Rating Websites

The State Bar’s Standing Committee on Professional Responsibility and Conduct (COPRAC) has put proposed Formal Opinion Interim No. 12-0003 out for a 90 day public comment period. The opinion considers: What are an attorney’s ethical obligations regarding a profile of the attorney posted on a professional directory website maintained by a third party? The opinion interprets Rule 1-400 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6157, et seq. and 6106.  The opinion digest states:

An attorney is not responsible for the content of her profile on a professional online directory and rating website maintained by a third party unless she either exercises “control” over the profile’s content by “adopting” her profile on the directory itself in order to market her practice or by otherwise using the profile to market her practice such as by posting a link to the profile on her own site. When an attorney uses her profile to market her practice, her profile becomes a “communication” on behalf of the attorney, and an “advertisement” for her professional services, and consequently she must comply with Rule 1-400 of the California Rules of Professional Conduct and Article 9.5 (Legal Advertising) of the State Bar Act (Business and Professions Code, § 6157, et seq.). This means she cannot post, and must make reasonable efforts to correct, any content which is false, deceptive, or which would tend to confuse, deceive, or mislead the public.  If third party testimonials are posted on the profile, the attorney should take reasonable steps to ensure that the disclaimer set forth in Standard (2) of Rule 1-400(E) is included. Similarly, if any such testimonial contains untrue factual information, she must take reasonable steps to correct or disavow such information. An attorney who abandons a profile on a third party directory has no further obligation to correct misleading content contained in the profile. An attorney abandons the profile by deciding to no longer monitor the profile or use it in marketing her practice and taking reasonable steps to demonstrate such decision.

Deadline  for comments is 5 p.m., Sept. 15, 2017
Direct Comments To

Andrew Tuft
Office of Professional Competence, Planning and Development
State Bar of California
180 Howard Street
San Francisco, CA 94105-1639
Phone: 415- 538-2172
Fax : 415-538-2171

State Bar of California Annual Discipline Report for 2016 Now Available

The State Bar of California has released its annual discipline report for 2016 to the public.  Key data points from the report:
  • ·OCTC closed 15,240 cases and filed formal charges in 672 cases;
  •  The State Bar Court took action on 903 cases, closing 107 with no action or with nondisciplinary action, issuing formal reprovals or referring cases to the California Supreme Court with a recommendation for suspension or disbarment in 796 cases;
  • The Supreme Court disbarred 191 and suspended 202 attorneys in 2016; these figures reflect a ten percent increase over the 174 attorneys disbarred in 2015 and an eighteen percent decrease compared to the 247 attorneys suspended in 2015. Also, 51 attorneys were subject to reproval, resulting in a total of 444 attorneys subject to formal discipline in 2016; and
  •  On December 31, 2016, OCTC had an inventory of 4,428 cases, which included 928 cases, or twenty-two percent, that were suspended while OCTC pursued disbarment action against the same respondents in different cases. The total year-end inventory reflects a nine percent decrease compared to the 4,646 cases pending at the end of 2015.
The annual discipline report is required by Business and Professions Code section 6086.15.


Attorney Work Product Protection Belongs to Law Firm, Not Departing Employee

TuckerEllis v. Superior Court (Nelson), First App. Dist., Div. 3, case no. A148956, filed 6/21/17.  In a case of first impression, the Court of Appeal held that the work product protection codified in Code Civ. Proc. section 2018.030 belongs the former employer law firm, not to the departed attorney employee.  The trial court had held otherwise and issued an injunction barring the law firm from disclosing the work product of the departed attorney employee without his permission.  The former employee attorney had joined the law firm in 2007 and was promoted to “non-capital partner” in 2009. He has supplied with a personnel handbook informing him that all records and files of the firm were the property of the law firm.  While employed the attorney employee had worked with a group of expert witnesses in asbestos litigation.   After the attorney employee left the firm to work at another firm doing asbestos litigation, the firm was served with a subpoena seeking records of communications with these experts.  Ultimately, the firm produced those records, including communications between the attorney employee and the experts. Attorney then sent a “clawback” letter asserting the communications were protected attorney work product. The law firm did not respond and the attorney filed an action against the firm, asserting that the dissemination of his work product had made it impossible for him to work with the experts and that he was terminated as result.  The attorney ultimately filed a successful motion for summary judgment against the law firm, leading to this appeal.

New Jersey Supreme Court Issues Order Forbidding New Jersey Lawyers from Participating in  Avvo, Legal Zoom and Rocket Lawyer as “Uncertified Legal Referral Services”

The New Jersey Supreme Court has issued an order prohibiting New Jersey lawyers from participating in legal referral programs run by Avvo, Legal Zoom and Rocket Lawyer.  The Court found that these programs were not registered legal referral service programs as required by the New Jersey Rules of Professional Conduct.

That’s Why They Call It Practice: Everything Old is New Again

On July 1, 2017, I will resume practicing law as a solo practitioner under the name Law Office of David C. Carr, also known as the Ethics Lawyer.  Serving as Senior Counsel at Klinedinst PC has been an honor and a privilege and I cannot praise the fine lawyers at this firm enough. Without a doubt, I am a better lawyer because of my association with one of California’s premier law firms.  I have worked with them for many years and I am sure that we will work together again.  For me, the siren call of solo practice is not something I can resist and the prospect of creating something all your own is exciting. I will, as before, continue to serve lawyers and proto-lawyers in their constant and perpetual rendezvous with legal ethics, a field which only becomes more interesting as we live and practice in this turbulent times.