Current and Timely Information and Analysis About
California Attorney Ethics in Practice

Is the Arbitration Provision in Your Firm’s Fee Agreement Properly Drafted?

Some recent California cases have illustrated the importance of a properly drafted arbitration provision in attorney-client fee agreements, and what is at stake. Typically, arbitration is vastly superior to litigation for law firms to resolve disputes with clients related to representation, including fee disputes. Arbitration is confidential, generally has limited discovery and streamlined procedures, and can lead to a swifter resolution of what are sure to be ugly issues. But if your arbitration provision is not properly drafted, it may not be worth much when you need it. Some minor revisions to your fee agreement may mean the difference between arbitrating and litigating disputes with clients. More

Connect with Caution: Don’t Let Social Media Indirectly Compromise Client Confidentiality

We frequently repeat the refrain that client confidentiality in California is not a gray area: you must keep client information confidential.  Most attorneys (hopefully) by now know not to divulge confidential client information on social media.  Some attorneys have learned the hard way that casual comments about clients or client matters on social media is perilous.  But attorneys must also focus on the potential to reveal confidential client information indirectly on social media.  You may be revealing a lot on social media even though you aren’t posting directly about clients or client matters.  How so?More

Mistakes were Made? Learn from the Post-Mortem Analysis

Assume that your firm has made a mistake that led to an ethical lapse: a conflict of interest with no informed consent, or a similar misstep.  Once the actual fallout from the situation subsides, from a compliance perspective the relevant question is whether you can learn from these circumstances and avoid similar issues.  For any law firm in similar situations (and there are many, since California law firms deal with similar issues nearly every day) if it appears that your firm may have made mistakes that led to ethical lapses, once you move beyond the paranoia and anxiety phase it is critical to conduct a thorough and objective post-mortem analysis to prevent similar occurrences in the future.  To do this, you must ask, and answer, some potentially difficult questions.More

Should Non-Attorneys Be Permitted to Practice (Some) Law?

Attorneys and bar associations nationwide are grappling with a few hard truths about the current practice of law.  The legal profession is a highly regulated profession, including strict requirements for any person to be authorized to practice law.  Among other things, you have to go to law school (mostly) and take and pass the bar exam for any particular jurisdiction, or otherwise be admitted after a detailed moral and character review.  This regulation is designed in part to ensure that the public is protected from unscrupulous counsel, who could prey on the most vulnerable among us at the times they are most vulnerable.  Unfortunately, this high level of attorney regulation also may have the effect of limiting meaningful access to lawyers for a vast swath of the public who could benefit from counsel.  Is the high level of regulation for attorneys, intended to protect the general public, appropriate if it means that the vast majority of the general public could never afford a lawyer?More

Advance Conflict Waivers, Arbitration–and Fees–Tossed for Conflicts

The recent Second District Court of Appeal opinion in Sheppard, Mullin, Richter & Hampton, LLP v J-M Manufacturing Co., Inc. sent a shock wave through California law firms.  The case started when a firm sued a former client for $1.3 million in unpaid fees, after it had been disqualified from a matter for that client because of conflicts.  The case ended (at least for now) with an order from the Court of Appeal that rejected the firm’s advance conflict waivers and neutered the arbitration provision in its fee agreement.  Instead of collecting an additional $1.3 million in fees, the firm has to refund nearly all of the $3.8 million in fees it collected for the underlying matter.  Among other things, the case illustrates the limited application of advance conflict waivers and what happens when they are not effective to prevent or to cure conflicts.  It also may portend a much more difficult landscape for analyzing conflicts of interest, and what is now at stake if that analysis turns out to be incorrect.More