Desert Bar l Announcements / Articles

The May 2012 edition of the Desert Bar Association Family Law Section Newsletter is now available for download. To download, please click here.

FEDERAL BAR ASSOCIATION INLAND EMPIRE CHAPTER TWELFTH ANNUAL CONSTITUTIONAL LAW FORUM

Federal Bar Association Inland Empire Chapter presents its Twelfth Annual Constitutional Law Forum, featuring Dean and Distinguished Professor of Law, Erwin Chemerinsky, University of California, Irvine School of Law. Also presenting the 2012 Erwin Chemerinsky Defender of the Constitution Award to Dale K. Galipo. Tuesday, May 15, 2012, Noon - 1:30 p.m., at the Hilton San Bernardino, 285 E. Hospitality Lane, San Bernardino, CA 92408. ~Lunch Will Be Served~ Cost: FBA Members - $45.00, RCBA/SBCBA Members - $50.00, Non-Members - $60.00, Gov’t Employees - $40.00, Law Students - $30.00. RSVP no later than May 9, 2012 to Emily Montgomery by calling (951) 328-2245 or by sending an email to emily_montgomery@cacd.uscourts.gov. Please remit payment to: FBA/IE, P.O. Box 42, Riverside, CA 92502. RCBA/FBAIE certifies that this activity has been approved for 1 hour of General MCLE credit.

The State Bar is taking a more aggressive approach to auditing MCLE compliance than it has historically. All California lawyers need to be aware of this change in the Bar’s MCLE auditing process.

The result of the State Bar’s recent 2011 MCLE audit of one percent or 635 lawyers has confirmed the need for increased auditing. Of the 635 audited attorneys, 539 provided the necessary documentation showing full compliance. Of the remaining 96 attorneys, five have been suspended due to their inability to show any compliance. Most of the remaining 91 attorneys had minor reporting deficiencies and received a cautionary letter from the MCLE compliance group about future compliance. Approximately 25 of the 91 are being referred to the Office of Chief Trial Counsel for disciplinary action. Using simple math, we see that 15% of this reporting group were not in compliance.

This result is troubling and reaffirms the action being taken by the State Bar. In 2012, California attorneys can expect that five percent or roughly 3,000-4,000 lawyers to be audited. In 2013, the goal is to audit 10% which translates to 7,000-8,000 lawyers. Letters requesting proof of compliance for 2012 will be mailed in June.

The message is clear. California lawyers must fulfill and accurately document and report their MCLE requirements. No California attorney should be surprised if their compliance certificate is audited. For more information regarding MCLE requirements and reporting, visit the State Bar’s MCLE web page.

If you have any questions, please send an email to Carol Madeja, Managing Director of Bar Relations Outreach at carol.madeja@calbar.ca.gov.

The National Lawyers Guild is a national, non-profit legal and political organization comprised of lawyers, legal workers, law students, and jailhouse lawyers, now celebrating 75 years since the Guild’s founding. More information is available on their website at www.NLG.org.

Membership and New Local Chapter Formation: There must be a minimum of eight dues paying members to form a chapter. They are currently taking applications to form a chapter in the Inland Empire. Until a new chapter is formed, members can be designated as "at large". Chapter members can be lawyers, legal workers, law students, or jailhouse lawyers. For membership information, contact Jamie Munro at membership@nlg.org or call (212) 679-5100.

Legal Observer Program: The Legal Observer® program is part of a comprehensive system of legal support designed to enable people to express their political views as fully as possible without unconstitutional disruption or interference by the police and with the fewest possible consequences from the criminal justice system. Legal Observers® are trained and directed by Guild attorneys, who often have established attorney-client relationships with activist organizations, or are in litigation challenging police tactics at mass assemblies. Local Training Date and Location: TBA. At this time they are planning for a teleconference training in this area. For Legal Observer Training, contact Jim Lafferty, Director of Los Angeles Chapter, at jlafferty@nlg-la.org.

The April 2012 edition of the Desert Bar Association Family Law Section Newsletter is now available for download. To download, please click here.

California’s statutory summary judgment and adjudication provisions are found in Code of Civil Procedure section 437c. The statute was amended by the State Legislature effective January 1, 2012. The changes are significant.

Prior to the amendment, a party could move for summary adjudication of (1) one or more causes of action, (2) affirmative defenses, (3) claims for damages, or (4) issues of duty. In reality, this mainly translated into summary adjudication motions on certain causes of action, on punitive damages, or on straightforward affirmative defenses such as the statute of limitations.

The purpose of allowing such motions under the statute is to expedite litigation and eliminate needless trials. PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590. However, despite the stated purpose of the statute, parties interested in having the court determine major issues that, if resolved, would not dispose of an entire cause of action or an entire affirmative defense, could not look at 437c for a mechanism for judicial resolution of the issue. Before the recent amendment, the only option to adjudicate issues was through a motion in limine.

Now, with the adoption of these changes to Section 437c, parties can move for summary adjudication of a legal issue or claim for damages even if that issue does not completely dispose of a cause of action, an affirmative defense, or an issue of duty, according to specified procedures. To read more on this topic, click here.

Please mark your calendar for the 2012 Pathways to Justice Conference, June 7-8, 2012, UC Hastings College of the Law, San Francisco. Don't miss this excellent opportunity to attend cutting edge programs, earn MCLE credit, and network with legal services colleagues.

Co-presented by:

• The State Bar of California Office of Legal Services
• Legal Aid Association of California
• Administrative Office of the Courts Equal Access Project

• Programming in a variety topics for staff, board members, pro bono attorneys and others from:
        o Legal services and pro bono organizations
        o Self-Help Centers
        o Small Claims Courts
        o Lawyer Referral Services
        o Court interpreter programs
        o Other access to justice entities
• 10+ hours of MCLE credit
• Affinity group meetings
• Networking opportunities
• Presentation of the LAAC Awards of Merit

Please go to www.calbar.org/pathwaystojustice for more information and updates. Online registration will be available in mid-March.

URGENT ACTION REQUEST - REPORTS ON THE EFFECTS OF THE REDUCTION IN COURT FUNDING

The Desert Bar Association would like to encourage local attorneys to submit Reports on the Effects of Judicial Branch Budget Reductions on Legal Practitioners, Their Clients, and Court Users to the Judicial Council Office of California.

The Council is seeking reports of the impact this budget crisis is having - in human terms; detailing specific incidents, including, but not limited to the following information:

Your submission should include enough information to enable the Judicial Council to aggregate similar stories and present a picture of the cumulative effects on the public:

3. The specific reduction in programs or services that impacted you or your client;

4. The immediate, subsequent or residual effect that the reduction had on you and your client, and what that means in terms of access to and the delivery of justice; and

5. Your contact information should the Judicial Council need to follow up with you on your submission.

It is not enough to say the lines are long, or that there is a backlog in processing judgments, but if that is the effect you are reporting, please articulate how that impact is felt by your client, what the result of it is on your client's life or well-being.

Please submit reports to Donna Hershkowitz, Assistant Director of the AOC Office of Governmental Affairs, by email at donna.hershkowitz@jud.ca.gov, or at (916) 323-3121. Ms. Hershkowitz will aggregate the information for use in statewide outreach and education efforts.

Ayotte & Shackelford have updated, as of November 2011, the numbers for the Indio Courthouse in the Ayotte & Shackelford Directory of Attorneys, and are making the revised page immediately available via download.

The general Ethics Information page at the State Bar website has added a new area dedicated to Ethics and Technology -- a collection of resources that address professional responsibility issues raised by the use of Internet websites, email, chat rooms and other technologies. The resources include advisory ethics opinions, articles and MCLE programs.

Most of the resources are internal links to other pages on the bar’s website and some are external links to local or specialty bar associations. The new page is organized both by the type of resource (ethics opinion, article, etc.) and by subject matter (law firm websites, electronic files, social networking, etc.).

The new service focuses on providing basic legal research leads on how the rules apply to new technologies rather than specific law office systems, hardware or software options. For the latter, the resources of the State Bar’s Law Practice Management & Technology Section can be considered.

To facilitate a lawyer’s ability to readily identify and address legal ethics issues, the State Bar has published an e-Reader version of the Rules of Professional Conduct and the State Bar Act. The e-Reader version of the rule book is compatible with the Kindle Reader App, a free e-Reader application available for iPads, iPhones, Blackberry phones, Android phones, Macbooks and PC laptops. The book also works on all versions of Amazon.com’s Kindle.

For a limited time, the e-Reader version of the rule book can be purchased at Amazon.com for $4.99, a quarter of the price of the hardcopy book. It offers several useful features including a search function, bookmarking, highlighting and annotating. In addition, once downloaded to a tablet, smart phone or other compatible device, the book can be accessed at any time, even without an Internet or cellular data signal.

The bar’s rule book has been published for more than 65 years. The 30-page edition published in 1949 has grown to 411 hard copy pages. In addition to the rules and State Bar Act, the book includes other related authorities such as selected Rules of Court, code sections, the Federal Mortgage Assistance Relief Services Rule, the State Bar Pro Bono Resolution, the Lawyer Referral Service rules, MCLE rules and more.

Gov. Brown has signed a measure to authorize a $10 rebate on all California lawyer dues and to change how the State Bar is governed. SB 163 had earlier passed both houses of the legislature by votes of 39-0 in the Senate and 68-9 in the Assembly. The bar board of governors is expected to act on the bill Oct. 5 by formally setting the dues at the authorized level.

The $10 rebate means most active lawyers will pay dues of $400 next year. The reduction is also available to inactive lawyers, who will owe $115. A check-off box on the bill also will offer the option of donating $20 to legal services for the next two years. The current $10 check-off produced $1.6 million in 2011.

The measure also calls for the transfer of $2 million in both 2012 and 2013 from the bar’s insurance affinity program account (non-mandatory dues money) to IOLTA-funded legal services programs. Click here to read more.

The votes have been tallied, and we are now happy to announce your incoming Officers and Board of Trustees of the Desert Bar Association for 2011-2012:

CA SUPREME COURT OPINION: CASSEL V. SUPERIOUR COURT OF LOS ANGELES (SUPER. CT. NO. LC070478, FILED 1/13/11)

"The issue here is the effect of the mediation confidentiality statutes on private discussions between a mediating client and attorneys who represented him in the mediation."

The [Court of Appeal] majority concluded, when a mediation disputant sues his own counsel for malpractice in connection with the mediation, the attorneys — already freed, by reason of the malpractice suit, from the attorney-client privilege — cannot use mediation confidentiality as a shield to exclude damaging evidence of their own entirely private conversations with the client. The dissenting justice urged that the majority had crafted an unwarranted judicial exception to the clear and absolute provisions of the mediation confidentiality statutes.

Though we understand the policy concerns advanced by the Court of Appeal majority, the plain language of the statutes compels us to agree with the dissent.

ABA Journal: Plaintiff Who Discussed Suit with Lawyer on Work E-Mail Can’t Claim Privilege

Posted Jan 20, 2011 8:02 AM CST
By Debra Cassens Weiss

A woman who sued her employer claiming discrimination can’t shield her lawyer e-mails in the litigation because they were sent from her work e-mail account, a California appeals court has ruled.

Gina Holmes had claimed the e-mail was protected by the attorney-client privilege, according to stories by Wired’s Threat Level blog and Technolog on MSNBC.com.

The Sacramento-based appeals court said the e-mail was not a protected confidential communication because Holmes’ employer, the Petrovich Development Co., had warned that employee e-mails were not confidential and were subject to monitoring.

“The e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard by him,” the court said.

Last March, the New Jersey Supreme Court protected e-mails sent from a personal account on a work computer to a lawyer. The court noted that the e-mails weren’t clearly covered by the employer’s policy, and they contained the standard warning that they were confidential attorney communications.

To view this article on the ABA Journal website, please click here.

Items of Interest