Ethics Lawyer Newsletter November 2018

November
2018

ETHICS LAWYER NEWSLETTER

From

Ethics Lawyer David C. Carr

Failure to Respond to Demurrer May Be Cured By Attorney Fault Provision of Code. Civ. Pro. section 473(b)

Joshua P. Pagnini v. Union Bank, N.A., et al.,

First App. Dist., Div. 5, case no. A151390, filed 10/17/18

Plaintiff and appellant failed to respond to a demurrer filed by defendants bank and associated entity. The trial court sustained the demurrer and entered judgment in favor of the bank defendants. The trial court denied the plaintiff motion for relief under Code Civ. Pro 473(b), providing for mandatory relief in cases of attorney fault. The appeals court concluded the trial court was obligated to grant relief under the mandatory provision of Section 473(b), where the plaintiff presented a sworn declaration from his counsel attesting that counsel mistakenly failed to respond to the demurrer by timely filing an amended complaint. It held that the bank defendants' demurrer was effectively a "dismissal motion" and plaintiff's counsel's mistaken failure to respond to the motion obligated the trial court to relieve plaintiff from counsel's error.

Availability of State Bar Discipline Does Not Deprive Government Employer of Power to Discipline Attorney Employee

Palmieri v. California State Personnel Board

Third Appellate District, case no. C082508, filed 10/31/18

Plaintiff was an attorney hired by real party in interest Dept. of Corrections in part to conduct disciplinary cases against prison guards. She herself was terminated for misconduct. After a 21-day hearing, she was found culpable of four counts of misconduct, one of which was her discourtesy and dishonesty to an administrative law judge (ALJ) after she was taken to task for her tardiness. She appealed her dismissal to the State Personnel Board (Board) which ultimately upheld her termination. The trial court denied her mandamus petition to overturn her dismissal, and she timely appealed. The appeals court upheld the judgment. It held, inter alia, that the availability of State Bar discipline against plaintiff as a lawyer did not deprive the Dept. of Corrections with the power to discipline her in the employment context.

Public Comment Potpourri

The State Bar of California is seeking public comment on a number of issues that concern California Lawyers:

New Rules of Professional Conduct Now Effective

The new California Rules of Professional Conduct became effective November 1, 2018. All lawyers admitted or practicing in California ( Rule 8.5(a)) are subject to these new rules. They follow the American Bar Association Model Rules numbering system and adopt much of the text of the Model Rules, along with many California changes. These Rules will dramatically change the way California lawyers practice -- especially new Rule 1.7 on conflicts, new Rule 1.15 on handling clients funds, new Rule 4.3 on contact with represented persons, new Rules 5.1, 5.2 and 5.3 on supervising subordinate lawyers and non-lawyers and new Rules 7.1-7.5 on advertising and solicitation. But there is much more in the new Rules that you need to know about. Below is link the Court's order approving the Rules and the text of the new Rules.

New California Rules of Professional Conduct Effective 11/1/18

California Supreme Court Adopts Attorney Fingerprinting Rule

New California Rule of Court 9.5.5 Requires All Attorneys to be Fingerprinted Before December 1, 2019

On June 1, 2018, the California Supreme Court adopted new California Rule of Court 9.9.5 requiring all California attorneys to submit new fingerprints to the State Bar by December 1, 2019. Failure to do so. Failure to be fingerprinted if required by this rule may result in involuntary inactive enrollment pursuant to Business and Professions Code section 6054, subdivision (d). Attorneys are required to bear the cost of the fingerprinting.

View New California Rule of Court 9.5.5

David C. Carr

David C. Carr is a lawyer in private practice in San Diego, California. Since 2001 his practice has emphasized representing attorneys in matters involving legal ethics and the law of lawyering, including discipline defense, bar admissions, attorney fee disputes, attorney professional responsibility and ethics advice.

Mr. Carr graduated from Loyola Law School in 1986 and was admitted to the California Bar that year. After practicing in business litigation and commercial law, Mr. Carr spent 12 years as staff attorney, discipline prosecutor and manager at the State Bar of California, before returning to private practice in 2001.

He is a member of the San Diego County Bar Association, where he serves on the Legal Ethics Committee. He is also a member of the Association of Professional Responsibility Lawyers and the Association of Discipline Defense Counsel, where he served as President from 2008 through 2010. Mr. Carr also teaches professional responsibility at Thomas Jefferson School of Law.

David C. Carr

(619) 696-0526
dccarr@ethics-lawyer.com
ethics-lawyer.com

This is a message concerning the provision of legal services (Cal. Rule of Professional Conduct 7.1. ) I am licensed to practice law in California only. I am the responsible attorney and the author of all content in this newsletter and I am solely responsible for its contents.