SLO: (805) 546-8785 | Paso Robles: (805) 226-4148

Posts on Jan 1970

You’re Fired – What are the Client’s Rights with Respect to Their Files?

In my last post, I discussed the obligations of an attorney to respond to a client’s request for a status update, rather than when terminating the relationship.  Here, I discuss the client’s rights to her file upon ending the attorney-client relationship.  

If a client asks for her file, it is not enough to hand it over like a library book and think the matter is concluded.  An attorney has a duty to avoid foreseeable prejudice to her client.  It’s also not enough for the attorney to think once the client reads the file she’ll figure out what to do next and by when it needs to be done.

Even if the attorney is fired and the client does want her file, not everything in that file belongs to the client.  A few examples of file materials that don’t have to be provided are the attorney’s work product, her impressions about the case, or some fantastic and unique form that she created to make her professional life better.  The attorney might have to extract the information from the form and include it some other way.  There also may be confidential records that the attorney cannot turn over. 

Can the attorney make copies of the client file?  Yes.  Can she require the client pay for the copies?  Yes – if it’s in the signed contract.  What if the client has agreed to pay for all copying costs but hasn’t yet – can the attorney hold on to the file until reimbursed?  This if often a problem area; the general answer is no, attorneys aren’t mechanics; they can’t put a lien on the file and hold it until the client pays up.  The attorney should be in no better position than any other creditor of the client. 

If there is no signed agreement on costs, the attorney treads on thin ice to try to make a client pay for copying costs related to protecting the attorney’s own interests.    Hard to argue that the client is bound to pay the attorney’s prospective defensive costs.  Definitely the attorney can keep a copy but she would be safer to pay for the copies.

Figuring out what stays and what goes also takes time and consideration.  What about my caller with his client at the door?  Does he have to just hand over the file?  Even if the attorney is being fired, the attorney needs to avoid foreseeable prejudice to his client’s rights.  The circumstances of each case may dictate how long the attorney can hold on to the file in order to review and copy it.  If it is an active file with imminent deadlines, the attorney is going to have to act faster than a semi-closed case, but if the client is in the lobby in the morning because she’s heard there’s a court appearance in the afternoon, well counsel, start your printer engines.

While it is possible that this attorney-client relationship was running smoothly and suddenly one day the client woke up and decided that she would travel to her attorney’s office and demand volumes of unidentifiable paper, it may be more likely that the client had been giving off signs of unease for some time and the attorney neglected to respond.   That, of course, leads me to say, see my previous blog on returning client phone calls!

Mara J. Mamet

mmamet@carnaclaw.com

Read More
More on Due Process: Thousand Oaks Case Parallels Massage Parlor Hearing Officer Case

I recently blogged about a City of Thousand Oaks case in which a hearing officer’s decision to impose a $2500 fine on a 23 year old man for an alleged violation of a “Social Host” ordinance (for allowing underage drinking in his home), was overturned.  The Superior Court judge reviewing the case ruled that the man’s Due Process rights had been violated by the way the hearing officer was selected, as well as a “lack of procedural due process during the hearing”.

 

The Thousand Oaks situation reminded me of a case that went to the California Supreme Court several years ago.  In Haas v County of San Bernardino, 27 Cal.4th 1017, 119 Cal.Rptr.2d 341 (2002), a well known attorney who specializes in representing the adult entertainment industry was able to successfully argue that a County’s practice of selecting and paying hearing officers on an ad hoc basis violated due process.  His client operated a massage parlor whose license was being revoked because a deputy sheriff had reported that one of his massage technicians had exposed her breasts and proposed a sexual act.

 

The Haas case eventually revolved not around the alleged wrongdoing but around the issue of the hearing officer that the County had hired to hear the appeal of the license revocation. The Supreme Court set forth the question and their response as follows:  “The question presented is whether a temporary administrative hearing officer has a pecuniary interest requiring disqualification when the government unilaterally selects and pays the officer on an ad hoc basis and the officer’s income from future adjudicative work depends entirely on the government’s good will.  We conclude the answer is yes.”  

 

My reaction to Haas has always been a reluctant admiration of how an attorney, well versed in Constitutional law, can invoke the legal principle like Due Process to advance his client’s position, especially in a situation where the facts were likely clearly against his client on the merits.  The lesson is to be vigilantly aware of the importance of due process principles and the pivotal role they can play in the ultimate result of a dispute. A lot of folks may argue or think of this as just “procedure” or a “technicality”, but these can easily form the basis upon which the ultimate results can turn…

 

David H. Hirsch

dhirsch@carnaclaw.com

Read More
Changes in Billing Paralegal Services in Estate Matters

The Probate Code governs compensation payable from estates for services provided by paralegals for the attorney within the request for the attorney’s compensation.  California Rules of Court contain provisions concerning compensation of attorneys who use paralegals.  Business and Professions Code sections 6450-6456 establish qualifications and continuing education requirements for paralegals working under the supervision of an attorney.

 

In July, 2010, the Judicial Council will vote on an Amendment to CRC Rule 7.703 regarding the qualifications of Paralegals used in Estate matters.  The proposed amendment would require a form to be filed with the fee petition showing that the Paralegal is compliant with B&P 6450. 


The Judicial Council’s summary of the amendment is:  "The proposed amendment of rule 7.703 would clarify that paralegals performing services for counsel for fiduciaries in decedents’ estates, conservatorships, and guardianships must satisfy the qualification and continuing education requirements of Business and Professions Code section 6450 et seq. for counsel to be eligible for compensation for paralegal services from the estates of decedents, conservatees, and wards."

 

The language used in B&P 6450 defines a paralegal, in part, as a person “who is qualified by education, training, or work experience . . .”  The Probate Code does not authorize payment for services for anyone who does not meet the requirements, even if he or she uses the title “paralegal.”  Further, paralegals are required to certify completion of mandatory continuing legal education as detailed in the code.

 

Paralegals and the attorneys who hire them need to be aware of the codes governing the qualifications of  paralegals as well as the mandate for continuing education in order to comply with the applicable codes in order to seek compensation for services provided.

By:   Leslie Donahue – ldonahue@carnaclaw.com

   Ellen Sheffer – esheffer@carnaclaw.com

Read More
Whose file is it anyway?

This may be a somewhat apocryphal story, but I’m sitting in my office, working very hard on something (surely) when I am alerted that an emergency is afoot. Upon inquiry, I discover that some attorney, somewhere, has a client at her:

  • doorstep;
  • lobby;
  • front stoop; and/or
  • holding on another telephone line

and, that client is demanding her file. What should the attorney do?

My first response is probably somewhere along the lines of why not give it to her? If she came in asking for something else that belonged to her, she would get it back, right? But that response would not address all of the underlying issues involved in the emergency — not the least of which is what happened to the attorney-client relationship to cause such disrepair that the client is now there demanding her file? Other more practical and immediate issues include, what parts of the file belong to whom and who pays for copies, has the employment or engagement actually ended and/or what else is the attorney supposed to do for the client and who pays for what, or did I mention money already? Someone who has a client in front of them demanding the return of their file pronto probably has something else going on that needs to be addressed, but one crisis at a time.

The Rule of Professional Conduct relating to return of files has been reworked over the years to try to make it more clear what has to be returned to the client: Rule 3-700(D) says that when the employment has ended and the client has requested it, all the client’s papers and property must be released. The rule specifies that client materials include correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert’s reports, "and other items reasonably necessary to the client’s representation, whether the client has paid for them or not."

What’s that mean? Well, first the attorney must determine whether the request is being made to elicit the status of the client’s matter, or rather, if the client is seeking a termination of the Client-Attorney relationship. If the client is just trying to find out what is going on in her case, then the attorney needs to promptly respond by providing copies of significant and pertinent documents (Rule 3-500).

In my next post, I’ll discuss what the attorney’s obligations are when the attorney’s employment is being terminated by the client ( I refrain from using "fired" in case Mr. Trump has obtained a copyright on that phrase).

Mara J. Mamet

mmamet@carnaclaw.com

Read More
Ruling Based on City Social Host Ordinance Reversed for Alleged Failure to Follow Due Process

I previously blogged about public entities and how they are required to observe a number of rules that the private sector doesn’t need to worry about because of Constitutional principles that apply to the actions of governmental entities. This included "due process" considerations that come into play during the many "quasi-judicial" proceedings that public agencies conduct. When due process is required, participants in the hearing are entitled to certain procedural rights that are necessary in order to ensure a fair hearing. Included among these procedural rights is generally the right to a hearing in front of an impartial decision-maker.

The need to be careful and make sure due process rights are kept in mind was driven home recently by a trial court decision involving the City of Thousand Oaks. As reported on December 31, 2009 in the Ventura County Star newspaper, the case involved a 23 year old man who was fined under a city Social Host Ordinance that makes adults liable for underage drinking parties at their homes.

http://www.vcstar.com/news/2009/dec/31/man-wins-case-against-to-city-hall/ He was cited after minors, including his 17 year old sister, were allegedly caught with beer inside his rented condo during a noisy party.

The City conducted an administrative hearing in which the man was found guilty and fined $2,500.. He then filed an appeal as permitted by State law to the Superior Court arguing that the hearing officer was unqualified. The City contracts with an independent business to conduct its hearings.

Ordering that a new hearing be conducted, the Judge ruled that "the process of selection of the hearing officer, and the lack of procedural due process during the hearing, require that the decision be overturned."

While there is surely more to the story than just what has been reported in the press, the lesson is that a failure to follow the necessary procedural issues can undermine an entity’s ability to enforce its laws and regulations and cause a reversal of an otherwise appropriate and valid result.

Stay tuned for my next blog entry, where I will discuss how the Thousand Oaks situation parallels a case involving hearing officers that was decided by the California Supreme Court a number of years ago…

David H. Hirsch

dhirsch@carnaclaw.com

Read More
Branching Out: Winery Compliance and the Potential Role of its Attorney

In our last posting, we discussed the risks that may arise from time to time with wineries with regard to compliance, and the potential for some highly undesirable repercussions for not staying current with compliance obligations. As mentioned in our previous posting, a number of excellent compliance companies are available to work with wineries to ensure full compliance. However, there are situations in which the needs of a winery may require more legal consideration and guidance for issues that may extend beyond the services provided by a compliance company.

An attorney can work in tandem with a winery’s compliance company to bring the winery into full compliance, but where necessary, the winery ought to consider whether the lawyer or the winery engage the compliance company to preserve the attorney-client confidentiality. Where a winery requires assistance with an issue that may involve disclosure of potentially sensitive information, working with an attorney may well be the best way to serve the winery’s interests, as communications between an attorney and his or her winery client are protected by the attorney-client privilege.

Additionally, while many wineries select their business structure in order to best meet the financial goals of the winery, the structure selected can in fact result in non-compliance with state or federal regulations. Working with a wine law attorney, a winery can ensure its business structure is one that is both financially beneficial to the winery and is within the parameters of the applicable regulations. It is not uncommon for a winery to have an extremely complex issue that may extend beyond a compliance company’s services (e.g., one that involves a tax, real estate or land use issue). In such a situation, a wine law attorney can work with the winery and, where appropriate, its compliance company, to resolve the compliance issue.

An attorney can provide services that encompass the multiple and varied needs of a winery, and ensure that all of the winery’s legal documents work together. A number of areas of law intersect in the operation of a winery, and it is extremely important that all of a winery’s legal documents are consistent and that they complement, rather than contradict, one another. Areas of law including land use and acquisition, estate planning, business structure and formation, corporate planning, taxes, contracts, intellectual property and environmental law may surface in the day-to-day running of a winery. An attorney can assist in these matters, and work with the compliance company to remain compliant to allow the winery owner to concentrate on what she or he probably most wants to – crafting that perfect bottle of wine.

Jeannie D. Goshgarian  Ziyad I. Naccasha

jgoshgarian@carnaclaw.com  znaccasha@carnaclaw.com

Read More
Irrevocable Life Insurance Trusts

Over the next few weeks, I will provide an overview of Irrevocable Life Insurance Trusts (ILIT's) and how they are utilized to maximize "free money" to the next generation while also providing a pool of funds from which to pay any estate tax liability (trust me, it will be back).

An ILIT is generally an Intentionally Defective Grantor Trust (IDGT) that owns life insurance on the lives of the grantors. An IDGT, for our purposes, is simply a trust that is considered irrevocable for all purposes except income tax. Once a life insurance policy is transferred to an ILIT (please note, an ILIT can purchase new life insurance, but the cost tends to negate this option), and the grantors have survived for three years subsequent to such transfer, the policy's death benefit has been successfully removed from the grantors' estate. Moreover, a pool of money has been created from which all estate liabilities, including estate taxes (trust me, they are coming back) can be satisfied.

This seems like a relatively simple estate planning technique that can be utilized by everyone. Obviously, however, complications do arise, especially when the grantors own single life policies. Estate tax inclusion issues, income that is taxed that can never be received. All this scary stuff and more will be addressed in the next blog. In the meantime, should you have any quesitons regarding ILIT's, please feel free to contact our office.

Read More
Return that Client Phone Call the Same Day!

In all the years I worked for the State Bar as a senior attorney for the Office of Trial Counsel, and all the literally thousands of complaints against attorneys I reviewed, I never saw a client who complained that his or her attorney called them too much. I’m asked all the time what’s the number one complaint against attorneys. It’s not that they’re evil or ill prepared, inexperienced or corrupt; it’s that they think that they’ll return that call tomorrow and tomorrow turns into days, weeks, more weeks and in some cases, a growing inclination to not look at the file again until it’s too late. Perhaps the statute of limitations has run, the tolling agreement has expired, the settlement offer is now withdrawn, or the discovery deadlines have passed. As devastating as one of these events can be to a client’s relationship with an attorney or firm, it’s compounded when the client learns about it from someone else – the opposing party, opposing attorney or the State Bar investigator after he or she receives the complaint that an attorney won’t communicate.

A study was done in medical malpractice cases where it turned out that many plaintiffs said they might have been satisfied if the doctor had just come to them, explained what happened and said how sorry they were. Just the opposite of what the professional liability representatives are instructing the doctors. But just as all attorneys are not evil, the same can be said for clients. The client is entrusting the attorney with one of the most important pieces of their life; generally, they want to know how it’s going.

The Rules of Professional Conduct (Rule 3-500) provide that an attorney must keep the client reasonably informed about significant developments. But what does that mean? Certainly the examples I just cited are significant developments. If something happens that makes or breaks the case, the client is going to want to know. On the other hand, the client is hiring the attorney to use his or her best judgment. Some of the friction can be avoided by having a discussion at the outset about what are some of the important events. For instance, one complaint heard regarding failure to communicate is the client saying he found out that his attorney had been to court on his matter and the client knew nothing about it, or the client heard there was a court hearing and the client wasn’t notified. It may turn out that the hearing was simply a status conference or discovery motion but the client complaining to the State Bar is, at least, a strong symptom of something gone wrong in the attorney-client relationship that might very well have been avoided if regular communication had been established earlier on. If the client is learning about incidents through third parties or taking it upon herself to look into the case status, there is something not working. As I said at the outset, clients don’t complain to the State Bar because their lawyer tells them too much.

Mara J. Mamet
mmamet@carnaclaw.com

Read More