Checklist for Disputes Over a Neighbor’s Home Business

home businesses may cause disputes with neighborsA home may be a person’s castle, but it can’t always be his or her office. More home-based businesses (including short-term rentals and home food production) means more neighbor disputes. Here’s a look at what constitutes a home business and a checklist to review whenever you’re asked to consider a dispute involving one. Continue reading

Big Changes for CA Companies Using “Independent Contractors”

Photo of a delivery driver checking his deliveries in his van. Is he an employee or an independent contractor?Determining whether a California worker is an independent contractor or an employee has never been an exact science, with a lot riding on correct classification. But the California Supreme Court recently tried to simplify the issue by adopting a new “ABC” test for California, at least for claims under the IWC Wage Orders for minimum wage, overtime pay, and meal and rest period violations. 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.

The Benefit of an Effective Medical Expert: More Money

get bigger verdict when using effective medical expert witnessThere’s a definite correlation between the size of personal injury verdicts and the effectiveness of testimony by medical experts. Well-prepared and well-presented medical testimony carries weight and convinces triers of fact. The recent $289 million verdict against Monsanto may be an example. Continue reading

Don’t Miss a Crucial Follow-Up Question

You prepare deposition or investigation questions in advance, but it’s the follow-up questions—often crafted on the fly—that may be the most important. Indeed, Michael Cohen’s lawyer Lanny Davis said that members of the Senate Intelligence Committee failed to ask the right “follow-up questions” when Cohen appeared before them last year and therefore failed to elicit crucial answers. Don’t make that mistake! Continue reading

What to Tell Clients When Discovery Starts

starting discovery responsesOnce discovery starts, you’ll need to contact your client to help with responses. Here’s a sample letter to explain what is happening and what you need from your client. Continue reading

When Can You Discover Private Information?

Even when a litigant can’t assert a statutory privilege, private matters may nonetheless be protected from discovery under the constitutional right of privacy. Balancing the privacy interest at stake against the need for discovery has always been a difficult task. But a recent California Supreme Court  case, Williams v Superior Court (2017) 3 C5th 531, has clarified the proper analysis to use.

Continue reading

Who Will Handle Your Law Practice If You Can’t?

decide who will handle your law practice if you have an emergencyNo one likes to think about it, but sole practitioners should take some time to plan for what will happen in the event of their death or disability. Do you have a plan for who will handle your practice if the need arises? Continue reading

6 Tips for Co-Parent Communication

When there are challenges around communication while co-parenting after divorce or separation, a parenting plan, either court ordered or by parental agreement, can structure the ways in which co-parents will communicate about their child. Including communication terms in a parenting plan can help to deescalate conflict, decrease misunderstandings, ensure that both parents have access to vital information, and insulate children from exposure to adult conflict. Continue reading

Checklist: Procedures for Interrogatories

checklist to use for interrogatory proceduresKeep this checklist handy the next time you’re propounding or responding to interrogatories—whether it’s your first time or you’re so familiar with the procedures that you just might accidentally skip something. Continue reading