New Ethics Rules Weigh In on Flat Fees

new rules of professional conductThe following is a guest blog post by Megan Zavieh. Megan focuses her practice exclusively on attorney ethics, providing guidance to attorneys, representing attorneys facing State Bar discipline, podcasting, and writing extensively on ethics issues.

California’s new Rules of Professional Conduct, effective November 1, 2018, recognizes a trend in legal services billing—flat fees. Flat fees are becoming more common as an alternative to the traditional billable hour. As they rise in popularity outside of criminal law, the rules directly address them. Here’s what you need to know and do. Continue reading

3 New Rules Every Criminal Law Attorney Needs to Know

new rules of professional conductThe following is a guest blog post by Garrick Byers, known as the Statute Decoder because of his facility in interpreting statutes and rules. He is the chairperson of the California Public Defenders Association’s (CPDA’s) Ethics Committee, and is a former CPDA president. He is a criminal law specialist and a frequent speaker and writer on criminal law topics, including ethics. He was a public defender for 33 years and is currently in private practice, handling criminal law appeals, writs, motions, and case consultations.

The new California Rules of Professional Conduct, effective November 1, 2018, use the format and much of the substance of the ABA Model Rules. Here are three of the most important changes for prosecution and defense counsel.

1. The most urgent change: prosecutorial discovery responsibilities (new Rule 3.8). The California Supreme Court adopted this new rule a year before the others, effective November 1, 2017, originally as an addition to current Rule 5-110. Paragraph (D) was added to require prosecutors to

[Disclose]…all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt…, mitigate the offense, or…the sentence, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

Also added was Comment [3]: “The disclosure obligations…are not limited to evidence or information that is material as defined by Brady v. Maryland (1963) 373 U.S. 83…and its progeny.”

2. Communication with a represented party person (new Rule 4.2). Current Rule 2-100 bars communication without that lawyer’s consent only with a represented “party.” The new rule expands this to “person”:

(a) In representing a client, a lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.

Comment [8] says “This rule…is not intended to preclude communications with represented persons [during]…investigative activities engaged in, directly or indirectly, by lawyers representing persons whom the government has accused of or is investigating for crimes, to the extent those investigative activities are authorized by law.”

3. Requirement to cite adverse authority (new Rule 3.3(a)(2)). It has never been a good tactic to fail to cite adverse authority, but it wasn’t against the disciplinary rules until now:

[A lawyer shall not] fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel…

Comment [3] adds, “Legal authority in the controlling jurisdiction may include legal authority outside the jurisdiction…such as a federal statute or case that is determinative of an issue in a state court proceeding or a Supreme Court decision that is binding on a lower court.”

Comment [4] says that this duty applies to “all lawyers, including defense counsel in criminal cases.” And that  “[t]he obligations of a lawyer under these rules…[is] subordinate to applicable constitutional provisions.”

These and several other reforms and changes require the criminal law bar to become familiar with the new Rules of Professional Conduct and adjust their practices accordingly.

For more on the new rules, check out CEB’s webinar The New Rules of Professional Conduct: Discrimination and Competence on September 25th at noon, in which Rules Revision Commission member Carol Langford will break down the new rules and tell you what you need to know to meet your ethical duties. And don’t miss Mr. Byers discussing the rules in CEB’s webinar The New Rules of Professional Conduct: What All Attorneys Need to Know on October 23rd at noon.

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Highlights of the New California Professional Rules

new rules of professional conductThe following is a guest blog post by Merri A. Baldwin. Merri is a shareholder at Rogers Joseph O’Donnell P.C., where her practice focuses on attorney liability and conduct, including malpractice, State Bar discipline, ethics advice, motions to disqualify and sanctions defense. She is the former Chair of the California State Bar Committee on Professional Responsibility and Conduct.  She teaches professional responsibility at Berkeley Law, and is a certified specialist in Legal Malpractice Law. 

In May, after several rounds and many years of drafting, editing, and consideration, the California Supreme Court approved comprehensive changes to the Rules of Professional Conduct governing lawyers in California to take effect on November 1, 2018. These significant changes bring California rules more in line with the rest of the country.  Here are some highlights of the new rules. Continue reading

The Key to Increasing Lawyer Productivity

lawyers can increase their productivityThe following is a guest blog post by Ritu Goswamy, Esq. Ritu is a lawyer, author, and legal productivity consultant. Ritu’s first book, The New Billable Hour: Bill More Hours, Be More Productive, and Still Have Work-Life Balance, is available for free by emailing her at ritu[at]newbillablehour.com.

“Productivity” is defined as the measure of output per unit of input. To get an increase in productivity, you need greater input efficiency. Here’s how lawyers can apply this principle to increase their productivity and make their practice more rewarding on every level. Continue reading

5 Ways Lawyers Can Maximize Their Time

lawyer with time pressure and too much to doThe following is a guest blog post by Ritu Goswamy, Esq. Ritu is a lawyer, author, and legal productivity consultant. Her New Billable Hour™ system allows lawyers to expand their time by billing themselves first. Ritu’s first book, The New Billable Hour: Bill More Hours, Be More Productive, and Still Have Work-Life Balance, is available for free by emailing her at ritu@newbillablehour.com.

As lawyers, we may think that there’s not enough time to get everything done. When we feel like we’re “spinning out,” learning the latest time management hack just adds to our stress. We can’t create more hours in the day, but can maximize the hours we have. Consider these five methods to maximize the hours in a day as ways to become more aware and in control of your time. When we are in control, the “spinning out” lessens and our focus deepens. Continue reading

Divorce Is Not Any Easier After Trump’s Tax Cut

wedding cake split apart to show divorce and split of assetsThe following is a guest post from Ed Lyman, a trial and appellate attorney at Walzer Melcher LLP who handles complex dissolution of marriage and domestic partnerships for high net worth individuals.

Family law attorneys and accountants are struggling to grasp the impact of the GOP’s tax overhaul on divorces. The biggest changes that affect divorcées is the repeal of various deductions, the creation of new ones, large tax cuts for business entities, and eliminating many exemptions. These changes require special attention when calculating alimony, child support, and division of marital assets. Continue reading

Don’t Let Your Ethical Duties Get Lost in the Cloud

The following is a guest blog post by Perry L. Segal, an attorney and management consultant at Charon Law, Redwood City. Mr. Segal has over 25 years of combined experience in law and technology. He is co-chair of the California Council of State Bar Sections, special advisor and past-chair of the Law Practice Management and Technology Section Executive Committee, and a member of the bar’s Social Media Task Force.

Few technologies create more puzzlement and worry for attorneys than “the cloud.” Attorneys, quite reasonably, want to know how they can stay on the right side of their ethical obligations when it comes to using it. As always, attorneys need to practice in accordance with the standard of reasonable care and effort. But there’s a caveat: Attorneys will be charged with the standard of an attorney who is competent in the understanding and use of technology. What does this actually mean? And as a practical matter, what can an attorney do? Continue reading

Don’t Let Fake News Cynicism Get in the Way of Your Social Media Evidence

The following is a guest blog post by Michelle Sherman. Michelle is the author of Winning with Social Media—A Desktop Guide for Lawyers Using Social Media in Litigation and Trial, a 2016 publication from the National Institute for Trial Advocacy. She has tried civil and criminal cases and is currently an in-house corporate legal counsel. She also is an adjunct professor at the University of Southern California Annenberg School for Communication and Journalism.

For anyone who likes to wake up on a Sunday by reading the newspaper, it’s a sad day that legitimate news organizations are under attack and the term “fake news” has become associated with them. Beyond the personal implications, this may also have negative effects on your law practice. More skeptical jurors may mean that you have to work harder to authenticate documentary evidence, particularly social media evidence.
Continue reading

Using Video to Brand Yourself and Connect with Clients

The following is a guest blog post by Nicole Abboud, Esq.  Ms. Abboud is a Millennial speaker, former practicing attorney, producer and host of The Gen Why Lawyer Podcast, and founder at Abboud Media—a video branding and marketing agency for lawyers.

Your potential clients are online, searching for answers to their legal concerns by consuming digital content. Videos are one way they seek answers. In fact, with over 1 billion hours of YouTube videos watched per day and YouTube ranking as the second largest search engine on the web, it’s safe to say that video is a highly effective way of reaching potential clients. Continue reading

Yes, California Employers, It Really Is Time to Update Your NDAs

The following is a guest blog post by Tyler M. Paetkau, Hartnett, Smith & Paetkau, Redwood City, CA. Tyler represents employers in all aspects of employment and labor law, including counseling and litigation regarding trade secrets and unfair competition.

Now is a particularly good time for California employers to update and revise their agreements with employees respecting trade secrets and other confidential and proprietary information (NDAs), based on several recent, noteworthy legal developments. Review your NDAs and make these three changes. Continue reading