Justia Legal Ethics Opinion Summaries

Noe hired attorney Dorit to evaluate the medical records of Noe’s deceased mother for a potential medical malpractice suit. Noe agreed to pay Dorit a $10,000 non-refundable retainer fee, intended to cover Dorit’s time spent evaluating the claim, plus “the costs of additional medical records and/or expert medical review if indicated.” The agreement stated, “Should there arise any disagreement as to the amount of attorney fees and/or costs, Client agrees to enter into binding arbitration of such issue or dispute before the Bar Association of San Francisco.” Ultimately, Dorit said he did not think a malpractice claim was viable. Noe later asked Dorit to return some or all of the retainer fee. Dorit refused. Noe filed a request for arbitration. An arbitrator awarded Noe nothing and allocated him the entire filing fee. Because neither party requested a trial de novo, the award became binding under the Mandatory Fee Arbitration Act MFAA). Months later, Dorit sued Noe for malicious prosecution based on the initiation of arbitration. Noe filed a special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The court of appeal reversed the denial of his motion. A malicious prosecution claim cannot be based on an MFAA arbitration. View "Dorit v. Noe" on Justia Law

The Court of Appeal held that the trial court abused its discretion in awarding any attorney fees to plaintiff. Labor Code section 218.5 mandates an attorney fee award in any action brought for the nonpayment of wages, if any party requests them at the initiation of the action. Furthermore, Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1255, held that a plaintiff cannot obtain attorney fees in an action for failure to provide rest breaks or meal periods. In this case, there was no basis for the trial court's award of fees where the only wage and hour claims alleged and litigated were for rest break and meal period violations.The court held that plaintiff's claim that it must affirm the judgment because defendants presented an inadequate record for judicial review is unfounded. The court also rejected plaintiff's contention that the predicate misconduct of her wage and hour claims was not rest period violations, but rather failure to pay earned wages. The court explained that this theory was reflected nowhere in the record of the attorney fee proceedings—until plaintiff filed her reply papers. In those reply papers, plaintiff cited no evidence of any work performed before the settlement that referred to or suggested the existence of a claim or cause of action for failure to pay earned wages. Accordingly, the court reversed the judgment to the extent it awarded attorney fees to plaintiff, remanding for entry of a new and different judgment denying recovery of attorney fees. View "Betancourt v. OS Restaurant Services, LLC" on Justia Law

Nguyen worked as a dentist until she was terminated. Nguyen hired attorney Ford, who filed a discrimination lawsuit. The federal district court entered judgment against Nguyen. Ford’s retainer agreement with Nguyen specifically excluded appeals. Nguyen hired Ford to represent her in an appeal and signed a separate retainer agreement. Nguyen alleges that during the appeal to the Ninth Circuit, Ford charged exorbitant fees and costs, and caused unnecessary delays. In April 2015, Ford successfully moved to withdraw as counsel. The Ninth Circuit affirmed the judgment against Nguyen. Nguyen sued Ford for legal malpractice and breach of fiduciary duty, stating “Although [Ford] continued to represent [Nguyen] in the district court tribunal, [Nguyen] had to retain new appellate counsel” and that, but for Ford’s untimely filing of a brief in the district court case, summary judgment would not have been granted against her.The trial court dismissed the action as untimely (Code Civ. Proc., 340.6(a)). The court of appeal affirmed. No reasonable factfinder could conclude it was objectively reasonable for Nguyen to believe Ford continued to represent her in the district court action. Once Ford filed notices in that case describing herself as Nguyen’s former attorney and stating she was placing a lien for on any judgment in Nguyen’s favor, any objectively reasonable client would have understood that Ford was no longer representing Nguyen. View "Nguyen v. Ford" on Justia Law

Nelson, a California attorney specializing in asbestos defense, was employed by Tucker. Tucker’s personnel handbook stated that all documents, including email and voicemail, received, created, or modified by any attorney are Tucker's property. In 2008, Nelson exchanged e-mails with Gradient, a scientific consult on litigation, about medical research articles relating to causes of mesothelioma. Counsel in a Kentucky litigation matter served Tucker with a subpoena seeking documents related to payments made by Tucker to Gradient to fund medical research articles and communications between Tucker and Gradient regarding such articles. Tucker withheld certain documents on the basis of attorney-client and the attorney work-product privileges but produced the e-mails authored by Nelson, who had left the firm. Nelson, subpoenaed for a deposition, claimed the e-mails contained his privileged attorney work-product and demanded they be sequestered and returned to him.Nelson filed suit, claiming that as a result of Tucker’s production of his e-mails, his work-product was available on the Internet and disseminated to asbestos plaintiffs’ attorneys, interfering with his ability to work effectively and resulting in his termination from his new firm. After Tucker’s unsuccessful attempt to compel arbitration and unsuccessful anti-SLAPP motion, the trial court ruled in favor of Nelson. The court of appeal reversed, concluding that Tucker, not Nelson, was the holder of the attorney work-product privilege with respect to the emails. On remand, the trial court granted Tucker judgment. The court of appeal affirmed. Each of Nelson’s claims was barred by the law of the case or by the litigation privilege, Civil Code 47(b). View "Nelson v. Tucker Ellis, LLP" on Justia Law

The State Bar’s mandatory continuing legal education program, Business & Professions section 6070(c) exempts “[f]ull-time employees of the State of California, acting within the scope of their employment.” When the Bar implemented the continuing education program in 1992, two Bar employees informally concluded attorneys employed by the superior court were not exempt state employees. Obbard, a full-time research attorney at the Alameda County Superior Court, asserted that he was exempt. The Bar disagreed, acknowledging that superior courts are funded by the state but reasoning that Obbard’s paychecks are issued by the superior court (rather than the State Controller) and he is “covered by different labor rules and collective bargaining agreements.” The Bar has been inconsistent on this position.The trial court and court of appeal agreed with Obbard. The principal common law test of an employment relationship is whether the employer has the right to supervise and control the work and to discharge the worker. The presiding judge of each superior court is a state officer, who controls the hiring, firing, and supervision of superior court employees, or delegates those duties to the court’s executive officer. The superior court is part of the state judicial branch, administered by the state Judicial Council, and funded through the state budget. View "Obbard v. State Bar of California" on Justia Law

Mikhaeilpoor sued BMW and an auto dealership, asserting claims under the Song-Beverly Act (Civ. Code, 1790) stemming from her lease of a 2013 BMW. Mikhaeilpoor alleged that the defendants: failed to promptly replace her car or make restitution; failed to commence repairs aimed at conforming the car to its warranty; failed to make available adequate service and repair facilities; and breached express and implied warranties. A jury awarded $17,902.54 in compensatory damages and $17,902.54 in civil penalties. Mikhaeilpoor sought attorney fees of $344,639 under section 1794(d): $226,426, plus a 0.5 multiplier enhancement and $5,000 for the fee resolution process. Her motion was opposed as vastly overstating the work performed with excessive hourly rates and an unwarranted adjustment.The judge “went through all the bills” and was “aghast” that counsel sought $343,000 in fees for “a very simple case.” The court did not consider whether Mikhaeilpoor should have accepted a Code of Civil Procedure section 998 offer, but calculated 225 hours at a $350 hourly rate and found that $95,900 was the reasonable amount of attorney fees. The court of appeal affirmed. The trial court was in the best position to evaluate the professional services rendered before it; its decision is supported by substantial evidence. View "Mikhaeilpoor v. BMW of North America, LLC" on Justia Law

Reynolds purchased a Ford truck. Over the next six years, Reynolds had the truck repaired 15 times but it continued to malfunction. Ford denied Reynolds’s request that it buy back or replace the truck under the Song-Beverly Act. Reynolds filed suit, raising several claims, including one under the Song-Beverly Act. The parties settled for $277,500.00. Ford agreed to “pay [Reynolds’s ] attorney’s fees, costs, and expenses pursuant to Civil Code section 1794(d) in an amount determined by the Court ... to have been reasonably incurred by [Reynolds].” Reynolds sought fees of $308,696.25. Reynolds had retained counsel on a contingency fee basis.The court conducted a lodestar analysis and awarded $201,891--compensation for 457.85 hours at reasonable hourly rates ($225-500/hour), plus a lodestar multiplier of 1.2, “reasonable and appropriate" to the objectives of the Act. The court ruled Reynolds had no obligation to disclose the terms of the retainer agreement: “Many statutory fee-award provisions begin with the lodestar method but are governed by the specific statutory requirement that the final fee award be ‘reasonable’ in nature. No such requirement is found in the Song-Beverly Act. The fee award must be based on the court’s calculation of the ‘actual time expended ... determined by the court to have been reasonabl[y] incurred. ... The court does not have the discretion to consider whether plaintiff’s attorney received additional compensation by ... a separate retaine[r] agreement.The court of appeal affirmed. Ford's concern that it is improper for a court to disregard a potential contingency fee award in determining the statutory fee under section 1794 is a question “more appropriately directed to the Legislature.” View "Reynolds v. Ford Motor Co." on Justia Law

In 2016, Anthony filed suit seeking to recover damages for personal injuries sustained in a car accident between him and Li. The parties unsuccessfully participated in voluntary private mediation and paid the requested fees. Anthony served a Civil Code 998 offer, seeking to compromise the action for $500,000.00, “each side to bear its own fees and costs.” Li did not accept. Li later made a section 998 offer to settle all claims against him for $175,001.00, with “each party bearing their own attorney fees and costs.” Anthony did not accept the offer. The parties jointly hired a court reporting service to record the trial proceedings. Counsel signed an agreement to share equally the fees for court reporting services. Anthony was billed and paid his share of court reporter fees. A jury returned a verdict finding Li negligent and awarding Anthony damages of $650,235.00., Anthony served a memorandum of costs for $83,048.06, seeking: $62,082.50 for section 998 post-offer expert witness fees; $2,650 for mediation fees, and $6,561.62 for court reporter fees. The court of appeal affirmed an order striking the motion. The parties agreed to share mediation and court reporter fees equally, without providing for the later recovery of those shared fees by a prevailing party. View "Anthony v. Li" on Justia Law

House owns an organic farm, adjacent to the Property, formerly owned by Moller. In 2002, House entered into a six-year lease with Moller for 35 farmable acres, containing a renewal option and a right of first refusal. House converted the Property to certified organic status. In 2007, Moller, with no notice to House, agreed to sell the Property to Foss. Foss, a licensed real estate agent, prepared the agreement, which did not contain a fixed closing date. House became aware of the agreement, notified Foss about the right of first refusal, and sued Moller. While the lease remained in effect, Foss entered the Property and sprayed nonorganic herbicides, cut down trees, and altered the fencing. House sued Foss. Moller filed for bankruptcy. The Property was foreclosed on and sold to a third party in 2015.The trial court found Foss liable for inducing a breach of contract, intentionally interfering with House’s prospective economic advantage, conversion, trespass, and negligence and awarded compensatory damages of $1,669,705 and $1,000 in punitive damages. House sought attorney fees and costs. The court denied the motion. The court of appeal remanded for a determination of reasonable attorney fees under Code of Civil Procedure 1021.9, which refers to “any action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock.” The damages award is supported by substantial evidence. View "Kelly v. House" on Justia Law

Appellants Eric Early and his election committee, Eric Early for Attorney General 2018 (collectively, Early), appealed the denial of their petition for writ of mandate to preclude respondent Xavier Becerra from running for Attorney General in 2018. Early contended that Becerra, appointed Attorney General by former Governor Brown in 2016, was not eligible for the office under Government Code section 12503. Becerra was an “inactive” member of the California State Bar from 1991 to the end of 2016. Government Code section 12503 provided: “No person shall be eligible to the office of Attorney General unless he shall have been admitted to practice before the Supreme Court of the state for a period of at least five years immediately preceding his election or appointment to such office.” Early argues that an “inactive” attorney may not practice law in California and therefore is not “admitted to practice” under Government Code section 12503. The Court of Appeal disagreed, finding both active and inactive attorneys were members of the State Bar. The phrase “admitted to practice” referred to the event of admission to the bar and the status of being admitted, and did not require engagement in the “actual” or “active” practice of law. Becerra did not cease to be “admitted to practice” in California when he voluntarily changed his status to “inactive.” View "Early v. Becerra" on Justia Law