Articles Posted in Legal Ethics

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Under California’s anti-SLAPP statute, unless a plaintiff establishes a probability of prevailing on a cause of action arising from constitutionally protected speech or petitioning activity, the court must grant the defendant’s motion to strike the claim and, generally, must also award the defendant attorney’s fees. In the instant case, Plaintiff, an attorney, filed an action against the State Bar after she was disciplined for committing violations of the rules of professional conduct. The State Bar filed a special motion to strike the complaint under the anti-SLAPP statute. The superior court granted the motion and awarded attorney’s fees to the State Bar, concluding that Plaintiff’s claims arose from protected petitioning activity and that Plaintiff had not shown a likelihood of prevailing because, inter alia, a superior court lacks subject matter jurisdiction over attorney discipline matters. The Court of Appeal reversed, concluding that because the trial court had no jurisdiction to rule on the anti-SLAPP motion, it also lacked jurisdiction to award attorney fees under Cal. Civ. Proc. Code 425.16. The Supreme Court reversed, holding that a court that lacks subject matter jurisdiction over a claim may grant a special motion to strike the claim under section 425.16 and thus may award attorney’s fees and costs to the defendant. View "Barry v. State Bar of California" on Justia Law

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The ACLU submitted a request under the California Public Records Act (PRA) to the Los Angeles County Counsel seeking invoices specifying the amounts that the County and been billed by any law firm in connection with several different lawsuits alleging excessive force against jail inmates. The County refused to provide invoices for the lawsuits that were still pending on the basis of attorney-client privilege. The ACLU petitioned for writ of mandate seeking to compel the County to disclose the requested records. The superior court granted the petition, concluding that the County had failed to show that the invoices were attorney-client privileged communications. The County then filed a petition for writ of mandate. The court of appeal granted the petition and vacated the superior court’s order, concluding that the invoices were confidential communications within the meaning of Cal. Evid. Code 952. The Supreme Court affirmed, holding (1) the attorney-client privilege does not categorically shield everything in a billing invoice from PRA disclosure, but invoices for work in pending and active legal matters implicate the attorney-client privilege; and (2) therefore, the privilege protects the confidentiality of invoices for work in pending and active legal matters. View "Los Angeles County Board of Supervisors v. Superior Court of Los Angeles County" on Justia Law

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Stephen Glass, the infamous journalist from the late 1990s who fabricated material for more than forty articles for The New Republic magazine and other publications, passed the California bar examination in 2006 and applied to join the bar. The Committee of Bar Examiners denied the application, determining that Glass did not satisfy California’s moral fitness test. The State Bar Court’s hearing department, however, found that Glass had established the good moral character to be admitted as an attorney. The Supreme Court granted review. After detailing Glass’s history of dishonesty, professional misconduct, lack of integrity, and tendency to advance his own agenda rather than to serve others in the community, the Court concluded that Glass failed to “carry his heavy burden of demonstrating rehabilitation and fitness for the practice of law” and declined to admit Glass to the practice of law. View "In re Glass" on Justia Law

Posted in: Legal Ethics

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At issue in this case was what attorney work product production, if any, should be accorded (1) recordings of witness interviews conducted by investigators employed by defendant's counsel, and (2) information concerning the identity of witnesses from whom defendant's counsel was obtained statements. Defendant objected to Plaintiff's request for discovery of these items, invoking the work product privilege. The trial court sustained the objection, concluding as a matter of law that the recorded witness interviews were entitled to absolute work product protection and that the other information sought was work product entitled to qualified protection. A court of appeals reversed, concluding that work product protection did not apply to any of the disputed items. The Supreme Court reversed, holding (1) the recorded witness statements were entitled as a matter of law to at least qualified work product protection; and (2) information concerning the identity of witnesses from whom Defendant's counsel has obtained statements is entitled to protection if (a) Defendant can persuade the trial court that disclosure would reveal the attorney's tactics, impressions, or evaluation of the case (absolute privilege); or (b) disclosure would result in opposing counsel taking undue advantage of the attorney's industry or efforts (qualified privilege). View "Coito v. Superior Court" on Justia Law

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Plaintiffs sued IFP and multiple DOE defendants for violating various labor laws as well as the unfair competition law (UCL)(Bus. & Prof. Code, 17200 et seq.). The amended complaint stated seven claims, the sixth of which alleged the failure to provide rest breaks as required by Labor Code 226.7. Plaintiffs ultimately dismissed this claim with prejudice after settling with the DOE defendants. IFP subsequently moved for attorney's fees under Labor Code 218.5. The trial court awarded fees and the Court of Appeal affirmed. The court concluded, in light of the relevant statutory language and legislative history, that neither Labor Code 1194 nor 218.5 authorized an award of attorney's fees to a party that prevailed on a section 226.7 claim. Accordingly, the court reversed on this claim and affirmed the judgment on plaintiffs' other claims. View "Kirby, et al. v. Imoos Fire etc." on Justia Law

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Plaintiffs objected to paying an extra fee for an expedited transcript of a deposition noticed by defendant. Plaintiffs won an appeal establishing that trial courts have the authority to determine the reasonableness of fees charged by deposition reports to nonnoticing parties. On remand, the trial court found that the fee charged to plaintiffs was unreasonable, but denied their motion for an award of attorney fees under Code of Civil Procedure section 1021.5. Relying on Adoption of Joshua S., that court concluded that plaintiffs had acted in their own interest and only incidentally conferred a benefit on other litigants. The Court of Appeal affirmed. The court concluded, however, that Joshua S had no application here where deposition reporters were officers of the court, regulated by statute, who perform a public service of considerable importance to litigants and members of the public. The reporting service here did not merely seek to vindicate its private rights. It defended its institutional interest in controlling the fees it charged and sought to shield itself from judicial review of its conduct as a ministerial officer of the court. Moreover, it was found to have charged plaintiffs an unreasonable fee. Therefore, the courts erred by concluding that the service did nothing adverse to the public interest and that plaintiffs' appeal did not involve an important right affecting the public interest. Because neither the Court of Appeal nor the trial court considered whether plaintiffs satisfied the other elements required for a fee award under section 1021.5, the court reversed and remanded for further proceedings. View "Serrano, et al. v. Stefan Merli Plastering" on Justia Law

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Plaintiff, an attorney, was previously declared a vexatious litigant and was subject to a prefiling order issued under Code. Civ. Proc. 391, barring him "from filing any new litigation" in propria persona in a California court without leave of the court's presiding judge. The litigation stemmed from a fee-splitting dispute with another attorney. Plaintiff filed the present litigation through counsel, but lost his representation while the action was pending. On defendants' motions, the trial court dismissed plaintiff's complaint on the ground he had not complied with section 391.7 and the Court of Appeals reversed, holding that section 391.7 applied only to actions filed in propria persona be vexatious litigants. The court affirmed the Court of Appeals and held that, by its unambiguous terms, section 391.7, subdivision (a) authorized only a "prefiling" order prohibiting a vexatious litigant from "filing" new litigation without prior permission, and only when the litigant was unrepresented by counsel. Subdivision (c) of the section provided that the court clerk shall not "file" any such litigation without an order from the presiding judge permitting the "filing," and if the court clerk mistakenly "files" the litigation without such an order, the litigation was to be dismissed. Therefore, section 391.7's dismissal provision did not apply here because plaintiff was not in propria persona when he filed the litigation. View "Shalant v. Girardi, et al." on Justia Law

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Plaintiff filed a complaint for breach of fiduciary duty, professional negligence, and breach of contract against defendants, an attorney and his law firm, where the attorney agreed to represent plaintiff in its effort to obtain approval of a redevelopment project, the attorney terminated the representation about two years later, and then the attorney became involved in a campaign to thwart the same redevelopment project by soliciting signatures on a referendum petition to overturn the city council's approval of the project. At issue was whether the court of appeals properly found that plaintiff's claims arose from protected activity in violation of the anti-strategic lawsuit against public participation ("anti-SLAPP") statute, Code Civ. Proc., 425.16, and whether plaintiff had failed to demonstrate a probability of prevailing on them. The court reversed the court of appeals and held that, based on the respective showings of the parties, plaintiff's claims for breach of fiduciary duty, professional negligence, and breach of contract possessed at least minimal merit within the meaning of the anti-SLAP statute.