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Posts on Jan 1970

A Useful Step in Choosing a Lawyer

Corporate CEOs, career criminals, and Larry King may have substantial experience in selecting lawyers to represent their interests but many people don't know how to go about selecting a lawyer.  A yellow pages ad will typically provide general information about the attorney's areas of specialty and length of experience.  However, an attorney advertisement, just like any advertisement, is intended to appeal to a prospective "buyer."  This means an ad is likely to present the attorney's strong points, while leaving out any problem areas.  Referrals from friends, family members, or co-workers may prove useful but should not be relied on to the exclusion of additional research into an attorney's background.  One useful tool in conducting this research is provided by the State Bar of California.

The State Bar website provides an Attorney Search page that allows a user to obtain basic information about an attorney, including educational background any specialization in any area of law in which the State Bar recognizes specialization, including family law, bankruptcy law, workers' compensation law, and tax law.  Keep in mind, though, that specialization is not recognized in most areas of law.  The web page will also tell the user when the attorney was admitted to practice in California and whether the attorney has been "inactive" at any time. 

Crucially, the Attorney Search page will also tell the user whether the attorney has ever been disciplined by the State Bar of California.  If an attorney has been disciplined, the site will sometimes take the reader directly to a linked document that describes the discipline and the reasons for it.  Even where the linked documents are not provided the site will tell the user what discipline was imposed and when it was imposed.  Where such minimal information is provided, an interested party can obtain copies of official disciplinary records directly from the State Bar.  The Bar charges for photocopying and related services, however, considering the importance of choosing the right attorney, consider the money well spent.

In considering the disciplinary information on the Bar website, please keep a few things in mind.  First, as stated on the site, there aremany attorneys in California and some have the same name.  Be sure you're checking the background of the right attorney by confirming address and phone number information.  Second, a history of discipline should not necessarily automatically disqualify an attorney.  Some acts leading to discipline are more serious than others and the passage of time without repeated problems may also be considered.  Third, a lack of disciplinary history, in itself, does not mean an attorney is qualified to handle your legal matter.

The State Bar website is by no means the only source one should consider when looking for an attorney.  Word of mouth, internet searches, attorney referral services, and numerous other sources provide useful information about attorneys.  The Bar website is, however, a useful early step in the selection process.

Mike McMahon – mmcmahon@carnaclaw.com

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Convicted Criminal Attorneys – Part I

When I was a kid I used to wonder how people knew that police officers were good and could be trusted.  Did they raise police separately to make sure only good people became part of the force?  How could all police officers be good?  Well, sadly, it turns out, or so I’m told anyway, not all men and women who work in law enforcement are actually “good”.

It turns out that every job has its bad apples and even law school – or the seminary – cannot ferret out the evil among us.

So, what of the attorney who has been convicted of a crime?  If an attorney cannot conduct his or her life in such a way as to avoid not only violating the criminal code but get caught doing it, should that be enough to make him or her unfit to practice law?  Well, not in California.  There’s still a long way to go.  Most of the California attorney disciplinary cases involving the conviction of a crime are covered by Business and Professions Code sections 6100 – 6103. 

An attorney who is convicted – not charged but convicted – of a felony or a crime involving moral turpitude will likely be suspended until the conviction is final and a hearing is held to determine what discipline is appropriate.  There is a sizable amount of cases from the California Supreme Court discussing the appropriate discipline for certain crimes.

Next:  What is moral turpitude?

Mara J. Mamet

mmamet@carnaclaw.com

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COUNTING THE DAYS UNTIL . . .

Following is some handy information from the Code of Civil Procedure to use when calculating deadlines around furlough days and the Court’s occasional long holiday weekends:

Section 12.  The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.

As an example, to calculate the date in which to respond to a document filed with the court on April 19, 2010, use April 20 as your start date.

12a.  (a) If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, "holiday" means all day on Saturdays, all holidays specified in Section 135 and, to the extent provided in Section 12b, all days that by terms of Section 12b are required to be considered as holidays.

Therefore, if the last day to file a document falls on Thanksgiving Day, the filing date is extended until the following Monday.

   (b) This section applies to . . . provisions of law providing or requiring an act to be performed on a particular day or within a specified period of time, whether expressed in this or any other code or statute, ordinance, rule, or regulation.

Best practice dictates that you maintain a current list of holidays for all agencies and courts in which your firm handles matters.

12b.  If any city, county, state, or public office, other than a branch office, is closed for the whole of any day, insofar as the business of that office is concerned, that day shall be considered as a holiday for the purposes of computing time under Sections 12 and 12a.

The Court’s holidays are not our holidays:

135.  Every full day designated as a holiday by Section 6700 of the Government Code, including that Thursday of November declared by the President to be Thanksgiving Day, is a judicial holiday, except September 9, known as "Admission Day," and any other day appointed by the President, but not by the Governor, for a public fast, thanksgiving, or holiday. If a judicial holiday falls on a Saturday or a Sunday, the Judicial Council may designate an alternative day for observance of the holiday. Every Saturday and the day after Thanksgiving Day is a judicial holiday. Officers and employees of the courts shall observe only the judicial holidays established pursuant to this section. (italics added)

And be aware of the somewhat tricky conditions imposed by Section 1013:

The service is complete at the time of the deposit, but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended five calendar days, upon service by mail, if the place of address and the place of mailing is within the State of California, 10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States, and 20 calendar days if either the place of mailing or the place of address is outside the United States, but the extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal. This extension applies in the absence of a specific exception provided for by this section or other statute or rule of court. (italics  added)

To be safe, the rule should be that when choosing between two sets of deadlines, to always calendar the earlier deadline.

 

Leslie Donahue, Paralegal     Ellen Sheffer, Paralegal

ldonahue@carnaclaw.com    esheffer@carnaclaw.com

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A Pragmatic Approach to the Single Document Rule Cont’d

In a previous positing, I discussed the implications of the recent California Attorney General (“AG”) opinion on the California Automobile Sales Finance Act’s (CASFA) Single Document Rule for new car dealers.  I will now explore the legal reasoning behind the AG’s opinion and explain why I find it potentially problematic.   

 

In reaching his decision that all agreements between the buyer and seller with respect to the total cost and the terms of payment for the motor vehicle need not be referenced on a single sheet of paper, the AG first applied well-established rules of statutory construction.  Looking to the usual and ordinary meaning of the words, the AG found that the term “single document” means “a separate or individual paper.”  The AG concluded that nothing in this definition requires that the entire document “be contained on one page or on one sheet of paper.”

 

The AG further supported his conclusion by appealing to the relevant case law.  In

Kroupa v. Sunrise Ford, the Court of Appeal held that three occurrences—consumer traded in two vehicles, consumers received a rebate from the dealer, consumer entered into a vehicle lease—constituted a single transaction that should have been memorialized in a single document.  Because the terms of the lease did not contain information about the rebate and the trade-ins, the Court found that the Single Document Rule had been violated.  The Court, however, failed to state that all the information relating to the three occurrences had to be contained on one sheet of paper.  In Morgan v. Reasor Corp., the California Supreme Court found a violation of the Single Document Rule where an installment contract and promissory note were not physically attached to each other.  The AG argued that this holding implies that separate pages physically attached to each other can constitute a single document.  Lastly, the Attorney General appealed to a recent California Supreme Court decision, Alan v. American Honda Motor Co., Inc.  While the Court’s decision did not directly involve the CAFSA, the Court interpreted a rule of court to include a single document requirement.  In interpreting the requirement, the Court stated that “[o]bviously a document can have multiple pages.”

 

The AG’s opening statements suggest that pragmatic considerations also played an instrumental role in informing his conclusion.  He notes that “taking all of the rules into account, an automobile sales contract must now be approximately 24 inches long (printed on both sides) in order to contain all required provisions in their required sizes.”  This is a gross understatement when viewed in the practical light of an automobile finance office on a Sunday afternoon.  Every closer must determine how far the law goes in regulating agreements that are silent as to the contract terms and amounts but might have some indirect affect on the total cost of the transaction.  These necessary agreements are frequently used by plaintiffs’ attorneys attempting to rescind auto sales contracts for violating the Single Document Rule.  I am referring, for example, to pay-off adjustments for trade-ins, damage indemnity agreements and GAP (guaranteed automobile protection) agreements. 

 

As I briefly mentioned in my previous posting, the AG’s opinion does not provide adequate justification for eliminating the requirement that all agreements between the buyer and seller with respect to the total cost and the terms of payment for the motor vehicle be referenced on a single sheet of paper.  The AG relies merely on the absence of any such articulated requirement coupled with pragmatic considerations to support his rejection of the prevailing interpretation.  There is simply insufficient case law to determine with any degree of certainty how a court would rule on this issue. We are cautiously optimistic, however, that a court would reach a similar decision based on the same pragmatic considerations and lack of adverse authority.

 

Erica A. Stuckey

estuckey@carnaclaw.com

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