Staying Out of Trouble (with the California State Bar) 2016

Century Law Group LLP
Edward O. Lear, Esq.
State Bar defense
Legal malpractice
expert witness
Ethics consultations
Professional licensing
defense
(doctors, accountants,
realtors, insurance brokers,
etc.)
www.CalStateBarDefense.com
Fee disputes

State Bar of California:
Overview of Disciplinary Process
Inquiries
• Closed
• Investigation
Investigation/Trial Unit
• Close
• Other resolution
• File Notice of Disciplinary Charges
Trial at State Bar Court of California

State Bar Court System
California Supreme Court
• May review State Bar Court decisions
Review Department
•Appellate level
• Consists of presidingjudgeand 2 otherreviewjudges
Hearing Department
• Trial level
• Composed of 5 full-time judicial positions split
between LA & San Francisco

Sources of Complaints
• A client
• The court
• Opposing counsel
• Members of the public
o Including estranged spouses
• The State Bar itself
o Usually through news reports
• Conviction referrals

Why the sharp increase in 2009 & 2010?
12,000
14,000
16,000
18,000
2007 2008 2009 2010 2011 2012 2013 2014
New
Complaints
Received
2007 2008 2009 2010 2011 2012 2013 2014
13,535 13,585 17,103 17,386 15,719 14,820 13,048 12,744

Retainer Agreements: You Can
Protect Yourself
I.e.: Client wants 20 depositions
and/or defendant is judgment proof
Client’s demands
vs.
Attorney’s cost obligations

Excerpt from Retainer:
“shall” vs “may”
may
“Firm shall advance and then be
reimbursed all outstanding costs
and litigation expenses incurred by
the Firm in connection with legal
services performed under this
Agreement.”

Rules of Professional Conduct
Rule 3-700 (A)(2)
Rule 3-700 (A)(2) A member shall not withdraw
from employment until the member has taken
reasonable steps to avoid reasonably
foreseeable prejudice to the rights of the
client, including giving due notice to the client,
allowing time for employment of other counsel,
complying with rule 3-700(D), and complying
with applicable laws and rules.

Recovery is limited to quantum meruit –
the reasonable value of services.
(See, Fracasse v. Brent)
Fee Disputes
If early in the process:
If contingency representation ends
before case is resolved, can you still
collect fees?

Entire fee may be the reasonable value of
attorney’s services.
(See, Fracasse v. Brent)
Fee Disputes
If late in process:
(i.e., discharged “on the courthouse steps”)
If contingency representation ends
before case is resolved, can you still
collect fees?

(B) Unconscionability of a fee shall be
determined on the basis of all the facts and
circumstances existing at the time the
agreement is entered into except where the
parties contemplate that the fee will be
affected by later events…
Rules of Professional Conduct
Rule 4-200 Fees for Legal Services

(1) The amount of the fee in proportion to the
value of the services performed.
(2) The relative sophistication of the member and
the client.
RPC 4-200(B) Factors in determining
“conscionability of a fee”
(3) The novelty and difficulty of the questions
involved and the skill requisite to perform the legal
service properly.

(4) The likelihood, if apparent to the client, that the
acceptance of the particular employment will
preclude other employment by the member.
(5) The amount involved and the results obtained.

(7) The nature and length of the professional
relationship with the client.
(8) The experience, reputation, and ability of the
member or members performing the services.
(6) The time limitations imposed by the client or by
the circumstances.

(10) The time and labor required.
(11) The informed consent of the client to the fee.
(9) Whether the fee is fixed or contingent.

How do you ensure referral fee
agreement is enforceable?
Get your name in the retainer
agreement between new attorney
and client.
Rule 2-200 of California Rules of
Professional Conduct
Referral Fee

(A) A member shall not divide a fee for legal services with
a lawyer who is not a partner of, associate of, or
shareholder with the member unless:
(1) The client has consented in writing thereto after full
disclosure in writing that a division of fees will be made
and the terms of such division; and
Rule 2-200 of California Rules of
Professional Conduct
(2) The total fee charged by all lawyers is not increased
solely by reason of the provision for division of fees and is
not unconscionable as that term is defined in rule 4-200.

Selected Duties of an Attorney
Business and Professions Code § 6068
(a) To support the Constitution and
laws of the U.S. and of this State.
(b) To maintain the respect due to the
courts of justice and judicial officers.

(c) To counsel or maintain those actions,
proceedings, or defenses only as
appear to him or her legal or just, except
the defense of a person charged with a
public offense.
(e) To maintain the confidence…of
his or her client.

(i) To cooperate and participate in
any disciplinary investigation or other
regulatory disciplinary proceeding
pending against himself or herself.

(m) To respond promptly to reasonable
status inquiries of clients and to keep
clients reasonably informed...
Return your client’s phone calls and emails!

Affirmative Duties of an Attorney
(1) The filing of 3 or more malpractice suits
against an attorney in 12 month period.
(2) Entry of judgment against an attorney for
fraud, misrepresentation, breach of fiduciary
duty, or gross negligence in a professional
capacity.
(o)To report in writing, within 30 days, any of the following:

(3) Imposition of judicial sanctions against an
attorney, except for sanctions for failure to
make discovery or monetary sanctions of less
than $1,000.
(4) The bringing of an indictment or information
charging a felony against the attorney.

(5) Conviction of the attorney of:
• a felony
• a misdemeanor
• associated with practice of law, or
• where client was a victim, or
• a necessary element of which involves improper
conduct of an attorney including dishonesty or other
moral turpitude
• an attempt or a conspiracy or solicitation of another
to commit a felony or a misdemeanor of that type.

(6) Imposition of discipline against attorney by a
professional occupational disciplinary agency.
(7) Reversal of judgment in a proceeding based in
whole or in part upon misconduct, grossly
incompetent representation, or willful
misrepresentation by an attorney.

Martinez
v.
State of California, Department of Transportation
(Cal.App. 4th Dist. June 12, 2015)
• Martinez sued Caltrans over motorcycle accident.
• Jury returned verdict for Defendant Caltrans.
• Appeals Court reversed judgment based on
“egregious attorney misconduct” by Defense Counsel.
• Violated judge’s in limine orders
• Repeated questions after judge sustained
objections to them.

A Civil Action
Paramount Pictures, 1998
Synopsis: Jan Schlichtmann (John Travolta)
is a personal injury attorney, representing
alleged victims of chemical pollution of a
river. The defendants are two deep-pocketed
factory operators, represented by two huge
Boston law firms.

A Civil Action

The Rainmaker
Scene synopsis: Rudy Baylor (Matt
Damon), a recent law school graduate,
accompanies “paralawyer” Deck Shifflet
(Danny DeVito) into a hospital.

The Rainmaker

Staying Out of Trouble (with the California State Bar) 2016

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Staying Out of Trouble (with the California State Bar) 2016