My recent article in the Ethics in Brief column for the San Diego County Bar Association discusses a case involving terminating sanctions granted by a court after delays in scheduling discovery.
With adult use of marijuana becoming legal under California law, more lawyers may be thinking of getting involved in representing clients in the marijuana business. I recently attended an ABA presentation, Up in Smoke? Jumping on the Marijauna Bandwagon Ethically which was highly informative. Although this is a big business, there are many reasons for lawyers to exercise caution before engaging in this practice area. Most importantly, marijuana continues to be illegal on the federal level. Attorney General Sessions recently rescinded former DOJ policies discouraging federal law enforcement.
Recently, a lawyer in California was sentenced to serve four years after representing and working with a marijuana business. Reportedly, as part of the plea, the lawyer agreed to forfeit his license to practice law. So, an attorney must be thoughtful about the scope of the representation when engaged in the representation of a client engaged in the marijuana business.
Two ethics opinions in California, from the Los Angeles County Bar Association and the San Francisco Bar Association, address this subject. Both include many significant caveats a California attorney should consider when making a decision whether to engage in the representation of marijuana related businesses. The Los Angeles ethics opinion indicates that the lawyer should limit the scope of the representation to advising the client on California law. As the San Francisco ethics opinion points out, by advising a client in the marijuana business related to California law, a lawyer could be accused of aiding and abetting the violation of federal law. Both ethics opinions may merit reconsideration in light of Sessions’ rescission of Obama-era DOJ policies.
Rule of Professional Conduct 3-210 prohibits a lawyer from advising the violation of any law, including federal law making marijuana a controlled substance. A proposed change to this rule to allow California lawyers to advise marijuana businesses was not moved forward to the California Supreme court, so it is not likely that California will follow the path of other states that have modified ethics rules.
I served as a panelist for this two-hour presentation, along with Susan D. Carle, a Professor at American University College of Law, and Anne Ray, a Partner at Jenner & Block LLP in Chicago. The program covers many aspects of attorneys fees, and common issues that practitioners face. The on-demand presentation, sponsored by the National Association of Legal Fee Analysis (NALFA), is available at the NALFA website, at this link.
When a lawyer leaves a law firm, who holds the work product privilege? Is the law firm the holder? Or, does the lawyer hold the work product privilege? Please see my article in the latest ABTL Report for an in-depth discussion of the recent case Tucker Ellis LLP v. Superior Court, 12 Cal.App.5th 1233 where the court discusses the issue, a matter of first impression in California. While lawyers may believe that we know the answer to this question, the statute, California Code of Civil Procedure section 2018.030, is not specific as to whether the law firm or the lawyer is the holder of the work product privilege after the lawyer leave the law firm. Accordingly, the court’s determination is based upon policy considerations. Like many recent cases, the matter concerned a lawyer’s email communications. The law firm’s policy on the point was also a significant consideration for the court in making its determination, and therefore something that a law firm should consider in addressing this issue at the practical level. Because lawyers change firms with some frequency, and may or may not take cases with them, the work product of a departing lawyer is in play. Reading the article and the opinion, will also make you think about what you are putting in email, given that it lives on after you have left the firm, and may be disclosed with potentially unanticipated harmful consequences, as it was in the Tucker case. While the opinion provides guidance, certain scenarios are not addressed and merit careful consideration if you are addressing this issue in your firm, or in your practice.
I will be speaking to the Orange County Bar Association presenting the latest Ethics Update 2017 on September 28, with my co-panelists Rob Sall, Kevin Mohr, and Bob Kehr. The program will cover the latest cases and ethics opinion summaries on legal fees, billing, attorney client privilege, conflicts of interest and the duty of confidentiality, as well as ethics rules, and the most recent updates on avoiding legal malpractice. Get three hours of ethics credit. Please contact me if there are specific issues you would like the panel to cover that would be helpful to your practice.
The Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. case, pending before the California Supreme Court, will provide California lawyers with further insight regarding whether an advance waiver of a conflict of interest is enforceable, and if so, under what circumstances. An advance conflict of interest waiver is a waiver given by a client to a law firm to permit the firm to engage in the future representation of a client that would otherwise be prohibited by ethical rules governing conflicts of interest. A key issue is what disclosure in connection with an advance conflict of interest waiver will be sufficient for informed consent to an advance waiver by a client. Recent judicial decisions have trended toward increased scrutiny of advance waivers of conflicts of interest. The California Supreme Court has the opportunity in the J-M case to bring clarity to issue.
My earlier article, Forfeiture of Fees Due to Conflict of Interest, in the OC Lawyer magazine, discussed the decision of the appellate court in the same case, and emphasized the importance of conflict management at the inception of every new matter. In the J-M case, we will see whether the Supreme Court’s decision will “upend countless agreements between lawyers and their clients and wreak havoc on the practice of law,” as the firm described the potential consequences, in the name of public protection.
The California Supreme Court also has the opportunity to provide further guidance to lawyers on this issue through the proposed Rules of Professional Conduct, Rule 1.7, Comment 10, which will address advance conflict waivers, assuming it is adopted by the Supreme Court as proposed. The proposed language would permit advanced waivers “in compliance with applicable case law.”
The proposed comment also provides further guidance regarding factors that will determine whether the advance consent will be enforceable. One key factor is “the extent to which the client reasonably understands the material risks that the consent entails.” Discussing the advance waiver with the client can help the client understand the significance of the waiver. Under the proposed comment, effectiveness can also turn on whether the lawyer provides a “comprehensive” explanation of the types of future representations that might arise. In this regard, specificity is helpful. The experience and sophistication of the client giving consent is also a factor that the proposed rule would take into consideration. Whether the client is independently represented by counsel in connection with providing the consent is another important factor. Clients can be given this opportunity, particularly with in-house counsel, to get independent advice before signing.
Carole Buckner is Senior Counsel and Deputy General Counsel to Procopio, Cory, Hargreaves & Savitch LLP. Links to her additional articles and her bio are here. You may also find Ellen Pansky’s recent article Don’t Waiver on Waivers in the LA County Bar Ethics Update of interest.
As a member of the California State Bar’s Committee on Mandatory Fee Arbitration, I will be speaking to the Long Beach Bar Association this week along with a panel of members of the Committee. We will be conducting training for fee arbitrators, with co-panelists Doug Hull, Director of the State Bar’s Mandatory Fee Arbitration program, Lee Strauss, of NBC Universal and Patrick Maloney of the Maloney Law firm, both members of the Committee. Each of us will draw upon our experiences as fee arbitrators – I serve on the Orange County Bar Association’s program.
Among the topics I will address are discovery and evidence in Mandatory Fee Arbitration. In order to keep the fee arbitration process streamlined, discovery is limited. Evidence is liberally admitted to facilitate client’s representing themselves. I will also be discussing the use of findings in fee arbitration. In my experience, fee arbitrators put significant effort into preparing findings, in part to help the parties make an informed decision about whether to pursue a trial de novo. These training programs are very robust and I highly recommend these sessions if you are interested in fee arbitration.
This proposed opinion out for public comment takes a very practical approach for attorneys on how to deal with third party websites that describe attorneys, their clients and their practices. Important points are included on using disclaimers on testimonials from clients and correcting inaccurate information posted by others about the attorney. The draft opinion also discusses claiming a profile on a third party website by exercising control over the profile, which triggers the lawyer’s ethical obligations, as well as a lawyer’s abandonment of a profile on a third party website. Whether the recommended approaches are practical in the digital world is one issue that may be evaluated further via the public comment process as this proposed ethics opinion moves forward. Many third-party websites may not facilitate the recommended actions.
June 1, 2017 (San Diego) – Seasoned lawyer, educator and ethics advisor Carole Buckner has joined Procopio as Deputy General Counsel. Carole will be providing legal guidance to Procopio’s more than 160 attorneys, working out of its downtown San Diego headquarters and reporting to General Coun… Continued on Procopio site