Solo and Small Firm Section
News from the Section
- MESSAGE FROM THE CHAIR
- IN THE KNOW
- E-Discovery: Not Just For Big Law & Nerds!
- Accommodate, But Don’t Negotiate Your Rates
- Litigation Privilege Still Going Strong
- Completed Programs
- Programs Currently Scheduled
- Request a Program
- UP TO DATE
- Public Comment Sought on Draft Judicial Ethics Advisory Opinion
- Free Access to Briefs for cases argued to California Supreme Court
- TIPS ON TECH
- Who owns the law?
- The 5 biggest mistakes lawyers make when choosing a cloud service provider (and how to avoid them)
- New Blackphone could help lawyers safeguard client information
- SECTION PUBLICATIONS
- Big News for Smaller Firms
- Practice Book Available for Purchase
- IN PERSON
- Nominate an Attorney you know to be Attorney of the Year
- Annual Meeting will be in Anaheim in 2015
- Contact Us
1. Message from the Chair
I’m Susan Share, Solo and Small Firm Chair for 2014-2015. We are in for an exciting year that will include: live programs in L.A. and San Francisco; new outreach destinations; revitalized webinars; and much more.
Check out the quarterly editions of Big News -- now in color! We have 1600 + members and a goal to reach 2000 by 2016.
Help us reach our goal by encouraging your solo and small firm colleagues to join our section.
2. In the Know
A. E-Discovery: Not Just For Big Law & Nerds! Yes you, the small firm attorney, need to deal with it.
By Alexander H. Lubarsky, LL.M, Esq.
Solo and Small Firm Executive Committee Advisory Member
In law school, during the start of the Clinton administration, email was something that I heard that my friend’s cousin’s sister’s boyfriend just figured out. Upon graduating and starting up my own litigation practice, I was obsessed with the cool and novel technology that comprised fax machines and paper scanners. OCR software was just being coded and the concept was mind blowing. Accordingly, discovery in any legal dispute was relegated to deposition transcripts as well as paper-based memos and ledgers dusted off as they were snatched out of three ring binders and plucked from heavy steel filing cabinet drawers. At that time, the litigator would interface with email about as often as he or she may have to use a 3-D printer today.
Fast forward a mere decade from those heady days of the Clinton years and e-mail became the primary mode of business communication and paper comprises a quickly diminishing role in the evidentiary aspect of almost any dispute. Fast forward another decade and you can add text messages and social network feeds to the mix and many law firm’s don’t even ask their clients to produce paper -- knowing that anything in paper was almost certainly created by a computer and is therefore sourced electronically anyways.
Today, the District Attorney can attempt to prove Gary Gangbanger is a Norteno by showing the jury Gary’s Facebook photos where he seems to be proudly ‘throwing’ gang signs. The alleged inside trader’s transactions can be pinpointed between her electronically executed trades and instant messages between her broker and a shadowy C-level employee who works for the company being traded. Trade secret litigation turns almost entirely on source code. In child custody matters, the fitness of one parent over the other is often decided based on proof of nefarious web surfing and usage. Many vehicle collision cases are evaluated based on ‘black box recorder’ readings. Breach of contract matters tend to reveal more via the email messages sent back and forth between the parties than the ‘four corners’ of the contract at issue. Bankruptcy trustees and judges may monitor on-line banking to determine the legitimacy of a debtor’s recent spending prior to filing for bankruptcy protection. The list goes on and on. I can think of no area of law immune to the reaches of electronic/digital evidence.
Electronic data discovery is here to stay. This became evident over a decade ago via the seminal case of Zubulake v UBS Warburg, LLC, 22 Ill.217 F.R.D. 309, 13 ILRD 578, 2003 ILRC 1815, 91 FEP Cases 1574 (S.D.N.Y. 2003). Zubulake consisted of a series of case law decisions issued by the Southern District of New York involving an employment discrimination action where emails and backup human resource data were in contention. Since Zubulake opened the proverbial floodgates, the courts have accepted this and completely revised the black letter law pertaining to discovery to incorporate the sharing of ESI (electronically stored data)1 . These new rules dictate how and when parties must exchange ESI and further provide for sanctions for failing to do so. The courts have also adopted a well-accepted model known as the Electronic Discovery Reference Model (EDRM) which serves as a template that enables all parties to chronologically follow the flow of the electronic discovery process from its inception (locating and identifying and collecting potentially relevant electronic evidence) to its conclusion (reviewing that evidence for privilege and responsiveness and producing it to the requested party).
However tempting it might be, simply ignoring e-discovery obligations -- or worse yet, trying to hide or alter damaging electronic evidence in an attempt to circumvent an obligation to review and produce it can lead to steep sanctions including but not limited to fines, adverse jury instructions and even attorney discipline by the State Bar. See Qualcomm v. Broadcom, No. 05cv1958-B (BLM), 2008 WL 66932 (D.D. Cal. Jan 7). E-Discovery is something that all attorneys must now face. The judiciary has been extensively trained in the discipline and are not reluctant to invoke CRPC Rule 3-110 which is the provision in the California Rules of Professional Conduct giving the court the authority to remove counsel from a case and/or sanction counsel who proves incompetent to engage in the nuances of modern discovery. I imagine that it would not be fun to be berated by a judge in open court, in front of one’s own client and colleagues, for failure to understand or abide by the new discovery protocols.
Despite the fact that the new rules have been in place for almost a decade and that electronic evidence has perhaps comprised the majority of evidence in almost any conceivable type of legal dispute -- it remains intimidating, nebulous and out of reach for many small firms and solo practitioners who do not have e-discovery professionals embedded in their law firm or who may not be able to afford the outlandishly expensive consulting companies who gear their services towards the AMLAW 100 law firms and Fortune 500 corporations and bill at hourly rates akin to those of partners in Wall Street’s top law firms.
So, how does the little guy comply with the rules and serve the interests of his or her client by engaging in now obligatory (and ubiquitous) electronic discovery process? Fortunately, there are resources available for the solo and small firm practitioner.
Tools such as Summation, Concordance, Actevis and other solutions contain ‘do it yourself’ modules whereby a not-so-tech-savvy attorney or law firm staff person can copy the client’s email file (known as .pst file in Microsoft Outlook or an .nsf file in Lotus Notes) and access the emails for searching and review. The attorney or staff person can, in a subsequent step, redact partially privileged documents, assign Bates Numbers or other production number sequences to the data to be produced to the requesting party. Finally, the electronic data production is easily converted as a whole to .pdf or a static tiff images -- or even simply printed to paper for small productions -- and produced to the requesting party in compliance with the discovery protocols.
The process can and is a bit daunting the first few times, but it becomes more familiar with each repetition. After time, it becomes almost second nature.
Know that you are not alone when it comes to ESI for the small firm practitioner. In addition to your local consultant and other ‘hand-holders’ that are happy to guide you through the process, there are also some print and web sources that can be helpful. These include but are certainly not limited to:
Of course, you are always welcome to contact me or select members of both the Solo and Small Firm as well as the Law Practice Management and Technology Sections who have as part of their committees’ mission statements to assist fellow practitioners with such challenges. One can only now imagine what discovery challenges technological progress will bring about in the next decade or so.
Watching the ‘live’ holographic Michael Jackson performance on the American Music Awards is just one thing that makes one wonder where the boundaries may now lie. One thing is for certain, the practitioner who works to grasp today’s evidentiary challenges will be far better equipped to handle what is to come than those who attempt to close their eyes to change.
Alexander H. Lubarsky, L.L.M., Esq. is an attorney practicing in immigration, criminal defense and bankruptcy. He is also a legal technology consultant, Advisory member of the Solo and Small Firm Executive Committee, Instructor of Legal Technology at Cal State East Bay. He is now helping solo firms gain easy access to e-discovery with his new company -- Actevis. https://www.actevis.org. He can be reached at: Alexander.firstname.lastname@example.org or 650-810-6357.
1 The FRCP was amended in 2006 and California adopted its own Electronic Discovery Act (aka Assembly Bill ‘AB 5’) in 2009. Back
B. Accommodate, But Don’t Negotiate Your Rates
Posted on March 28, 2014 by Julie Brook, Esq.
REPRINTED BY PERMISSION
When you’re starting out in law practice and feeling desperate for paying clients, you may be tempted to negotiate with your clients over your rates for legal services. Don’t do it! Negotiating your rates is not a good idea, but there are ways to accommodate a client and thereby create a win-win situation.
In this video clip, solo practice expert Carolyn Elefant cautions against negotiating your rates, but she gives alternative ways to accommodate your clients in paying for your services:
Make it easier for your clients to pay through, e.g., payment plans.
Reduce the scope of services you will provide by, e.g., cutting out less important tasks or a claim that is difficult to prove.
Provide menu options with a range of prices for your services, i.e., different levels of service with different prices and let clients choose what works for them.
Check out the full program with much more practical advice and specific tools for new solo practitioners in CEB’s On Demand program Launching a Successful Law Practice. Also, anyone going solo should have CEB’s California Client Communications Manual: Sample Letters and Forms, which includes general attorney-client fee agreements as well as forms for fee collection letters and related lien matters.
C. Litigation Privilege Still Going Strong
By Nancy B Goldstein
The litigation privilege can make or break your case -- so know how to use it. This privilege, found in Civil Code §47(b), is absolute and broadly applied regardless of malice. Jacob B. V. County of Shasta (2007) 40 Cal.4th 948, 955. “ Its purposes are to afford litigants and witnesses free access to the courts, without fear of being harassed subsequently by derivative tort action, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments and to avoid unending litigation.” Ibid.
Even though the language of the code is broad, the litigation privilege only protects publications and communications. To tell if you can utilize the privilege, you must determine whether the complained of conduct is communicative or non-communicative. Unless it can be established that an independent, non-communicative, wrongful act was the gravamen of the action, the litigation privilege applies. Rusheen v Cohen (2006) 37 Cal.4th 1048, 1057-58, 1065.
The Solo and Small Firm Section is ready to bring programs to you!
A. Completed Programs
- San Joaquin County Bar Association - May 23, 2013
Program: How to Offer Big Firm Services on A solo or Small Firm Budget
- Santa Cruz Bar Association - June 12, 2013
Program: Time Management for Attorneys Who Have No TIme
- Humboldt County Bar Association - November 1, 2013
Dealing with the Difficult Client in Criminal Matters
- Yuba City Bar Association - November 19, 2013
NO YOU DIDN’T: recognizing the difference between a mistake and malpractice
- Santa Clara Law School - December 6, 2013
Starting Your Own Solo Practice
- Imperial County Car Association - January 22, 2014 - noon in El Centro
Program: Demystifying Social Networking and It’s Ethical Implication for Lawyers
- San Joaquin County - Stockton - January 23, 2014
- Lake County Bar - January 30, 2014 - noon in Lakeport
Program: "What Do You Mean That's Malpractice?"
- Chapman Law School - February 28, 2014 - 8:30 AM - noon
Reception at noon free to section members
- Riverside County Bar Association - March 20, 2014 - noon
To Post or Not: the Social Media Ethical Dilemma
- UCLA Law School - March 20, 2014
- Thomas Jefferson Law School - April 26, 2014
- Hastings Law School: July 17, 2014 from 5:30 to 8:45pm
B. Programs Currently Scheduled
Bakersfield Bar Association - TBA
Humboldt Bar Association - Jan 2015
Mono/Inyo County Bar Associations - Jan 2015
Additional 2015 programs currently being confirmed. We hope to see you in your locale soon!
C. Request a Program
If you missed us at one of our prior programs, invite us back.
If you are having trouble finding ways to meet your MCLE requirements because programs are not offered in your local area, then let us know!
The Solo and Small Firm Section has an extensive program library. A representative from our Section can come out to your local bar association and give a program which will count toward your live program requirement hours.
Contact your local bar and have them request a program from us!
Susan Share, Outreach Committee Chair
4. Up to Date
A. Public Comment Sought on Draft Judicial Ethics Advisory Opinion
The Supreme Court Committee on Judicial Ethics Opinions invites comment on a draft opinion providing guidance on disqualification of judges who previously “served as a lawyer in the proceeding.”
SAN FRANCISCO -- The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) invites public comment on a draft advisory opinion discussing whether a trial judge is disqualified from presiding over a criminal case if the judge appeared in that case as a deputy district attorney, but only for a brief, nonsubstantive matter such as a scheduling conference.
The draft opinion advises that a judge who previously appeared in a case as a deputy district attorney on a nonsubstantive matter, without active participation in the prosecution, is not disqualified to hear the case because such an appearance would not raise a reasonable doubt as to impartiality. The opinion concludes that disqualification where there is no perception of impartiality impedes the administration of justice and defeats the purposes of the statutes.In CJEO Draft Formal Opinion 2014-007, the committee examines:
The language and legislative history of the disqualification statutes and concludes that the term “served as a lawyer in the proceedings” is intended to include any active participation as an attorney for a party that could create a reasonable doubt as to impartiality.
- Case law from California and other jurisdictions and concludes that active participation does not include a brief appearance on a scheduling or uncontested matter where special knowledge about the case is not gained and no opinion or bias about the matter could be formed.
The draft opinion and invitation to comment are posted on the committee’s website at http://www.JudicialEthicsOpinions.ca.gov/itc. The deadline for comment is December 31, 2014.
The committee invites the public to comment on this draft advisory opinion. All comments submitted to the committee are confidential communications and precluded from disclosure unless confidentiality is waived. (Cal. Rules of Court, rule 9.80(h); CJEO Internal Operating Rules and Procedures, rule 5(b), (e).) Those comments submitted with a waiver of confidentiality will be posted for public view on the CJEO website at the close of the comment period. All of the comments the committee receives will be carefully considered by the CJEO members when finalizing and approving CJEO Formal Opinion No. 2014-007.
After considering the public’s comments on the draft opinion, the committee will decide whether or not to publish an opinion in final form. Comments are due by December 31, 2014, and may be submitted in any of the following ways:
- Online using this Comment Form;
- By email to Judicial.Ethics@jud.ca.gov; or
- By mailing comments to Ms. Nancy Black, Committee Counsel, The California Supreme Court Committee on Judicial Ethics Opinions, 350 McAllister Street, San Francisco, California 94102.
See more at: http://www.courts.ca.gov/28019.htm#sthash.bCWxXO2a.dpuf.
B. Free Access to Briefs for cases argued to California Supreme Court
Many subscription services now offer briefs - for a price. And when a case you are relying on turns on an interpretation of the facts, the opinion does not always provide the information you require to align your case on the facts. The briefs, however, could provide you with that critical information. And those briefs may be available, free, at the California Supreme Court website: http://www.courts.ca.gov/2951.htm.
5. Tips on Tech
A. Who owns the law? Technology reignites the war over just how public documents should be.
By Victor Li
Victor Li writes the ABA Journal's
Photo Illustration by Stephen Webster
These days the smallest and most exclusive piece of real estate in Washington, D.C., is the sliver of common ground that exists between congressional Democrats and Republicans. But during a January hearing before the U.S. House of Representatives Judiciary Committee on the scope of copyright protection laws, Democrats and Republicans were in broad agreement on an issue that was seemingly settled long ago: No one can own the law. [Emphasis added.]
But technology and a growing privatization of the law-making process have stirred up the debate once again. Huge amounts of formerly stored-in-print material -- including laws, court and administrative rulings, and regulations from governments, standards bodies and myriad other organizations -- are now digitized, which means printing costs and access issues should be minimal. Many of these documents are legally enforceable; some are standards that are legally binding; and others provide information that would normally be publicly available, though in the past you might have had to go to a clerk's office or library and pay for copies.
But the end of print and ink does not mean the end of all costs. And the debate has divided those who call for free access for all in all cases and the legal research firms (established and startup) who say legal documents can be misleading or meaningless without the context, organization and analysis that someone has to be paid to provide. For the full article, go HERE.
B. The 5 biggest mistakes lawyers make when choosing a cloud service provider (and how to avoid them)
There are 5 common mistakes that lawyers make when choosing a cloud provider:
- Not knowing where your data really lives
- Assuming you own your data
- Neglecting to integrate all your systems
- Relying on multiple parties for support and maintenance
- Focusing solely on price, disregarding ‘best practices
See the full article HERE.
C. New Blackphone could help lawyers safeguard client information
by Victor Li
In June 2014, SGP Technologies, a joint venture of Silent Circle and Geeksphone, will release the Blackphone, a smartphone that encrypts all data, messages and calls coming into and out of the phone.
The phone, which will retail for $629, is an unlocked (not limited to one service provider) device that includes all the bells and whistles found on most smartphones -- a camera, Web browser and Wi-Fi capabilities. But what makes it unique is that it runs PrivatOS, a modified version of the Android operating system, and contains Silent Circle's suite of privacy apps for secure calling and texting. Blackphone utilizes virtual private network technology for its Web browser and boasts secure data storage in the cloud from SpiderOak.
See the full article HERE.
6. Section Publications
A. Big News for Solo and Small Firms
Our Section Magazine, Big News for Solo and Small Firms, is back as a quarterly publication. If you are a Section member, you should have been receiving our new and improved magazine. We are currently accepting articles for our Annual Meeting edition. Please contact our editor, Henry S. David at: email@example.com.
B. Practice Book Available for Purchase
As a sole practitioner or the head of a small firm, you must act as so much more than just CEO; you also must also wear the hats of Chief Financial Officer, Human Resources Director, Chief Technology Officer, and more. The California Guide to Opening and Managing a Law Office is your personal executive team.
The California Guide to Growing and Managing a Law Office addresses what can be both a lawyer's most rewarding and challenging professional experience. The goal of this book, is to make it less challenging and more rewarding. It picks up where book one, “The California Guide to Opening a Law Office”, left off, exploring the challenges of growing a law practice in detail.
Available in State Bar Sections Bookstore: http://sections.calbar.ca.gov/About/SectionsBookstore.aspx
Webinars offer participatory credit and can be heard after their live air date - at your convenience.
- A Webinar offered by Solo Section has been updated for 2014: Health Care Reform for Small & Large Employers given by Marilyn Monahan. The program is offered December 10, 2014 from noon to 1 PST. This program offers 1 hour participatory MCLE credit. You must register in advance in order to participate.
- Solo Executive Committee Member, Megan Zavieh, will be on a panel of an ethics webinar offered byStafford Publications on Client Engagement Agreements: Ethical Considerations for Counsel. The live presentation is December 2, 10-11:30 PST.
- A good source for webinars is the CLE Calendar in the California Bar Journal, showing all of the upcoming webinars from all of the Sections, as well as in-person programs.
7. In Person
A. Nominate an Attorney to be Attorney of the Year
The Attorney of the Year Award is presented to an individual who has exercised notable leadership or contributed to the development of greater justice in a field of law. The award is presented annually, at the Myer J. Sankary Reception, to an individual who is a sole practitioner or a member of a small firm and who has devoted years of faithful service and leadership to the community or his or her fellow attorneys.
If you know of someone who merits this award, please contact Cynthia Elkins at firstname.lastname@example.org to obtain an application form.
B. Come and see us in Anaheim at the State Bar Annual Meeting
The State Bar of California 88th Annual Meeting
October 8-11, 2015
We're pleased to announce the return of the Annual Meeting to Anaheim in October 2015. The 2015 Annual Meeting will showcase a robust education agenda.
The Solo and Small Firm Section will be presenting a good selection of programs at the event!
3. Save Money with CEB
Continuing Education of the Bar, California (CEB) is extending some special discount offers to our section. As a member of the Solo and Small Firm Section, you're eligible for:
- 10% off selected CEB print or online books
- A rebate on your section dues that can be applied to the cost of a CEB Gold CLE Passport or a CLE program ticket
A complete list of the products eligible for a discount is available on a CEB web page accessible through our Members Only Area. Information about the section dues rebate program can be found on the CEB Web site.
Solo and Small Firm Section
The State Bar of California
180 Howard Street
San Francisco, CA 94105-1639