The 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.
With attorney movement on the rise between firms, it’s critical that attorneys and firms pay close attention to conflicts of interest that can come up when attorneys in practice for years are integrated into new firms. When a conflict is identified, firms can use ethical walls to prevent breaches of fiduciary duties and big hits to the firm, including disgorgement of attorney fees, malpractice claims, and loss of clients.
Attorneys maintain files on their clients’ cases with documents (and sometimes other property) that clients have provided in connection with those cases. These files have to be returned to the client, at a client’s request, when the attorney’s “employment has terminated,” subject to “any protective order or nondisclosure agreement.” Cal Rules of Prof Cond 3–700(D)(1). Given this rule, it’s imperative that attorneys establish an office policy on the retention and disposition (including destruction) of client files, and notify clients of this policy.
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?
If you have a “dispute concerning discovery,” the law requires that you try to resolve it informally by conferring with the opposing side. This meet-and-confer requirement can be met in person, by telephone, or by letter. But a letter or email alone generally won’t cut it; to really meet and confer, you need to talk to opposing counsel.