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Posts on Jan 1970

Keeping Track of Deadlines

    Keeping track of deadlines is important to planning a productive work day.  We prefer a form of written calendar slip that is kept by date in a filing box, along with a physical calendar to write on as well as entries in an electronic calendar program.  We can even go so far as to keep track of every phone call as well as those “subject matter experts” we occasionally meet while working on a case.  We note the name of each attorney’s assistant so we can get his or her extension from the firm’s internal directory when we call.  Internally, we keep track of daily contacts on paper by client and by date so we have a good written record of work performed and a ready supply of memory joggers to help keep our to-do lists up to date.

    We give ourselves at least two reminders in advance of an important deadline so we can plan our work more efficiently as that project comes due.  We suggest setting those reminders at intervals that make sense for completion of the project:  two months to draft a summary judgment motion, two weeks to draft a Motion to Compel.

    When coming into a case as a new defendant or cross-defendant, it’s important to review the court file to ascertain any court-set hearings.  Many courts have online dockets that can be viewed by case number.  San Luis Obispo Superior Court website has 5-day calendars that are refreshed every morning; this requires law office staff to review listings to determine if any client matters are coming up.  If you get stuck doing a review like this for a complex case, don’t forget to check your written record for the names of those attorney’s assistants who may have information to share with you!  Checking a department’s tentative rulings also provides an idea of what direction the judge is considering with regard to a calendared matter, giving an opportunity to assist the attorney in being better prepared at the appearance.

    If a deadline is missed, the work day becomes a lot less productive as we mobilize to handle the crisis instead of what was planned for that day.  Careful organizing and monitoring of both the office calendar and the courts’ calendars is a safeguard against missing important deadlines. 

Ellen Sheffer    Leslie Donahue

esheffer@carnaclaw.com    ldonahue@carnaclaw.com

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Communication with Opposing Counsel

    Rule 2-100(A) of the Rules of Professional Conduct states:  “While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.”

    Having worked as an attorney for the State Bar of California, I am sometimes asked for a  favorite State Bar war story.  One has to do with rule 2-100 prohibiting an attorney from speaking directly with an opposing party about the case if the lawyer knows that person is represented by an attorney.

    It also has to do with the dynamics of any large non-profit organization where management changes frequently and abruptly, enabling a continuum of managers to disclaim responsibility for hiring or failing to fire a particular employee who then attaches to the organization for its lifetime and develops barnacle-like problem solving skills and work ethic.

    So, as the story goes, a staff attorney/barnacle at the State Bar was assigned to handle a complaint against an attorney.  “Joe” complained that attorney “Bob” called him to talk about his case even though Bob knew that Joe had an attorney.  Following procedure, a letter was sent to Bob, advising him of the complaint and inviting him to respond.  Bob, as the attorney being investigated, hired an attorney to represent him in the investigation being conducted by the State Bar in response to Joe’s complaint.  Legend has it that the staff attorney got frustrated that Bob’s attorney didn’t respond fast enough so she contacted the Respondent directly to get a response thereby violating the rule she was seeking to enforce.

    If you’ve read Alec Baldwin’s book A Promise to Ourselves or know someone who has been involved in a bitter divorce (is “bitter divorce” redundant?) then you know one of the biggest complaints about marriage dissolution proceedings is the stilted communication between the parties.  I can’t tell you how many times I’ve heard the complaint from one spouse saying that the other spouse’s attorney won’t return his or her phone call or otherwise communicate.  Even though it may be tempting at times to pick up the telephone and call the other side directly, such communication is strictly prohibited by rule 2-100 of the Rules of Professional Conduct.

Mara J. Mamet

mmamet@carnaclaw.com

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LOST IN TRANSLATION

    On July 2, 1964, the Civil Rights Act (“Act”) of 1964 was signed into law.  Title VI of the Act provides that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefit of, or be subjected to discrimination under any program or activity receiving Federal Financial Assistance.  In 1974, the Supreme Court decided Lau v. Nichols, (1974) 414 U.S. 563, the cornerstone of language access advocacy.  The Court held that a San Francisco school district violated Title VI when it failed to provide adequate instruction for Chinese students who did not speak English, finding that the Title VI prohibition against discrimination based on national original includes discrimination based on limited English proficiency (“LEP”).

    While the Act only applies to public and private entities receiving federal financial assistance, the California State Legislature (“Legislature”) followed suit and enacted a number of statutes mandating language access.  In 1976, less than one year after Lau v. Nichols, the Legislature enacted California Civil Code section 1632 which requires the following:

Any person engaged in a trade or business who negotiates primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean, orally or in writing, in the course of entering into a [contract], shall deliver to the other party to the contract or agreement and prior to the extension thereof, a translation of the contract or agreement in the language in which the contract or agreement was negotiated, which includes a translation of every term and condition in that contract or agreement.

    The courts have repeatedly made clear that California Civil Code section 1632 applies to automobile sales contracts.  In a recent unpublished case, Alarcon v. Fireside Bank, (2010) Case Nos. A117148 and A118566, the First Appellate District Court held that a dealer who negotiated the sales contract in Spanish but failed to provide a completely filled-in copy of the contract translated into Spanish, violated California Civil Code section 1632.  Consequently, pursuant to section 1632(k), the consumer was given the opportunity to rescind the contract.  In Reyes v. Superior Court, (1981) 118 Cal. App. 3d 159, the court held that a borrower in an automobile loan transaction who is entitled to a Spanish translation of his loan contract pursuant to section 1632 is also entitled to a Spanish translation of any deficiency and repossession notice involving the loan contract sent to him pursuant to the requirements of the Automobile Sales Finance Act. 

Erica A. Stuckey

estuckey@carnaclaw.com

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