Klein & Wilson

Newport Beach California Business Litigation Law Blog

Failing to Perform Competently Can Subject Attorneys to Discipline

Lawyers get sued for malpractice all the time, but it is rare for the California State Bar to discipline lawyers for incompetency. Nevertheless, California Rules of Professional Conduct, rule 1.1, entitled "Competence," addresses this issue.

By way of background, lawyers act "negligently" (and can be found liable for damages) if they fail "to use the skill and care that a reasonably careful attorney would have used in similar circumstances. This level of skill, knowledge, and care is sometimes referred to as 'the standard of care.'" CACI 600. In legal malpractice cases, juries are asked to "determine the level of skill and care that a reasonably careful attorney would use in similar circumstances based only on the testimony of the expert witnesses" who testify. Id. 

My Lawyer Screwed Up!!! Can I Sue for Legal Malpractice?

Like other professions, lawyers sometimes make mistakes and those mistakes may have substantial consequences. So, when does an attorney's mistake justify a legal malpractice lawsuit? Ultimately, a viable legal malpractice claim will turn on the facts of the case, but here are five questions to ask if considering a legal malpractice lawsuit.

1. Was it my attorney who erred? With complex corporate structures, identifying the lawyer's clients is not always easy. If the attorney represents the corporation, does she also represent the shareholders or subsidiaries? Does the attorney represent the partnership, the partners, or both? If the attorney represents one spouse, does she represent the other spouse? If you cannot establish the attorney represented you (and owed you a duty of care), then your malpractice claim will not get far. 

When Are Attorneys Required to Communicate With Clients?

New California Rule of Professional Conduct, rule 1.4 is packed with guidance on when lawyers must communicate with their clients. Before considering the details of the rule, put yourself in the client's position. If you hired a lawyer to handle a life changing event, when would you want the lawyer to communicate with you? Generally speaking, more communication is better in the attorney-client relationship. Few clients complain their lawyers provide too much information.

First, lawyers must "promptly inform the client of any decision or circumstance with respect to which disclosure or the client's informed consent is required by these rules or the State Bar Act." There are many rules that require "disclosure" and "informed consent," and it's best to familiarize yourself with all these rules. When in doubt - disclose. When client consent is required, make sure you determine whether the consent must be in writing. For example, if a conflict of interest arises in the attorney-client relationship, the lawyer must obtain "informed written consent" before proceeding. See rule 1.7.

Klein & Wilson Named by U.S. News & World Report as one of the 2019 "Best Law Firms"

Klein & Wilson is pleased to share the news that we have been ranked by the U.S. News & World Report as one of the 2019 "Best Law Firms." We are proud to be ranked alongside other incredible law firms across America.

Lawyers Must Ensure Nonlawyers Comply With the Rules of Professional Conduct

While competent attorneys take steps to comply with the Rules of Professional Conduct, they sometimes forget that employees can get them into trouble by violating the rules. While the California State Bar likely won't discipline nonattorneys who violate the Rules of Professional Conduct, lawyers who supervise violators can be disciplined for those violations.

Lawyers Can Take a Peek at Inadvertently Transmitted Privileged Writings But Should Get Court Permission To Use Them

The California Rules of Professional Conduct go far beyond protecting clients from unscrupulous lawyers. Rule 1.0(a) says the rules are designed "to protect the public, the courts, and the legal profession; protect the integrity of the legal system; and promote the administration of justice and confidence in the legal profession."

Sometimes lawyers representing clients in litigation unintentionally produce too many documents to the other side. Even the most careful attorney can fail to remove every privileged document from a production which includes thousands of emails. Occasionally, the most sophisticated ESI (electronically stored information) vendors produce the privileged documents which the lawyer so carefully screened from production.

Do you understand what information is actually a trade secret?

Running your own business is a difficult task. It can take many years to develop your own processes for creating products or providing a service. It often takes even longer to develop a list of clients and customers who need what you can provide. How discouraging is it to consider the idea that someone could steal the information you spent decades acquiring for their own personal gain?

Thankfully, the United States government recognizes the fact that the potential for intellectual property theft has a chilling effect on business investments. There are protections in place for those who start or manage businesses.

Has your commercial landlord violated the terms of your lease?

Unlike residential leases, which often offer month-to-month terms or a single year term, commercial leases tend to last for multiple years. That leaves you, as a tenant, legally responsible for rent and cost for a much longer period of time.

When your landlord does something questionable, you may not feel like you have many options. After all, you can't simply walk away from your lease due to a breach of a single clause. The courts will likely hold you responsible for the rest of the rent over the lease period if you simply attempt to break the lease.

What can you do when an ex-employee uses your trade secrets?

It can take companies years to develop the best processes or manufacturing tricks for their products. Whether you run a restaurant or a consulting company, your trade secrets include any proprietary information used by your company. Anything from a list of clients and customers to your exact manufacturing processes receive protection as trade secrets.

Unfortunately, some unscrupulous people may decide to use your hard-earned knowledge for their own benefit. It happens frequently enough that employees decide to leave companies and branch out on their own. Instead of trying to build their own business from the ground up, however, they steal your trade secrets to give them a leg up on you as the competition.

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  5. KLEIN & WILSON | RECOGNIZED BY | Best Lawyers | 2019
  8. AVVO Client's Choice | Award 2017
  9. OCTLA | Orange County | Trial Lawyers Association | Trial Lawyer Of The Year
  10. The National Trial Lawyers | Top 40 Under 40

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