All posts in Ethics Corner

I have always wondered where it says you cannot record a telephone conversation.  It’s California Penal Code section 632(a), called eavesdropping.

CHAPTER 1.5. Invasion of Privacy [630 - 638.55]

632.
(a) A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. . . . .

What is all of that in English?

1.  The conversation must be “confidential” meaning at least one of the parties “desires it to be confined to the parties thereto,” Penal Code section 632(c) which specifically carves out conversations in a public gathering.

2.  The recording of the conversation must be without the consent of all parties to the conversation.  I wonder if the statement you hear while waiting on the phone that “this conversation may be recorded” constitutes consent by all parties.  It must be since it happens so often.

Some nice language from a Judge Kaufman tentative re withdrawing as counsel for the debtor.

Pursuant to California Rule of Professional Conduct (“CRPC”) 3-700(C)(1), an attorney may request permission to withdraw as counsel if the client:

(d) by other conduct renders it unreasonably difficult for the member to carry out the employment effectively;

Pursuant to CRPC 3–700(A)(2):

A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.

“[T]he court has discretion to deny an attorney’s request to withdraw where such withdrawal would work an injustice or cause undue delay in the proceeding.” Mandell v. Superior Court, 67 Cal. App. 3d 1, 4 (Ct. App. 1977); see also Estate of Falco, 188 Cal. App. 3d 1004, 1014 (Ct. App. 1987) (“To protect the best interests of the client, a trial court should have broad discretion in allowing attorneys to withdraw.”). Read more…

I have been reviewing the Business & Professions Code section 6000 et seq, preparing for the cdcbaa Ethics program on July 21, 2018.  Here is a pretty key section:

6068.  

It is the duty of an attorney to do all of the following:

(a) To support the Constitution and laws of the United States and of this state.

(b) To maintain the respect due to the courts of justice and judicial officers.

(c) To counsel or maintain those actions, proceedings, or defenses only as appear to him or her legal or just, except the defense of a person charged with a public offense.

(d) To employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

(e) (1) To maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.

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Haven’t you wondered what Of Counsel means?  The new Rules of Professional Conduct of the State Bar of California (effective November 10, 2018) tell us in Comment (2) to Rule 1.0.1 “Terminology.”  The definition is

The term “of counsel” implies that the lawyer so designated has a relationship with the law firm,* other than as a partner* or associate, or officer or shareholder, that is close, personal, continuous, and regular.

It’s a little strange that the definition is not in the definitions – only in the comments to the definitions.

By the way, the new rules are here.

New California Rule of Professional Conduct 1.15 requires that “all funds ‘including advances for fees, costs and expenses,’” received by the lawyer from the client or on behalf of the client must be deposited into a client trust account IF the atty “owes a contractual, statutory, or other legal duty” to the client, while for other cases like injury cases in accidents the use of Fielding Law Car accident lawyers are the best for these cases.

In English you say?  If it’s the client’s money it has to go into the client trust account with two exceptions set forth below.  It is the attorney’s money if he sends the client a bill and the client pays it, although for other problems as accident and injuries the Full Tort vs. Limited Tort | PA Limited Tort Lawyers | Simon & Simon law firm could be really helpful for this.

.  If the attorney gets money for work TO BE DONE, it’s the client’s money and must be deposited into the client trust account  – see exceptions below.

Exception 1 – a flat fee.  BUT, the atty must -in writing – tell the client that he can require that the money be put into the trust account AND that the client is entitled to refund if the work isn’t done.  IF the the flat fee exceeds $1,000, the client must sign the “writing.”

Exception 2 – a “true retainer.”  Per Rule 1.5(d), “A true retainer is a fee that a client pays to a lawyer to ensure the lawyer’s availability to the client during a specified period or on a specified matter, but not to any extent as compensation for legal services performed or to be performed.”  Once paid, the money no longer belongs to the client and doesn’t need to be deposited into the trust account.