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Paralegals and attorneys beware!  According to a recent article in The Recorder, sending that email to the wrong person can be a possible legal malpractice claim in the future.

“Emails sent in certain practices, such as commercial or residential real estate and other commercial transactions, are at a higher risk of being forwarded to third parties without the attorney’s consent. Clients in these areas believe a title opinion or a corporate authority opinion that is good for one purpose is good for all purposes, but forwarding emails and opinions creates risks.

For the attorney, there is the risk that opinions, which were transmitted for a single purpose in a unique context, may be transmitted for use in connection with unintended purposes or unrelated contexts. For the client, there is the risk of the waiver of the attorney-client privilege. And for the recipient, there is the risk of detrimental reliance on an opinion that does not apply to facts and circumstances for which the email was forwarded.”

There are things the legal staff and attorney can do to protect itself in the event this occurs, such as adding content to the email footer that can be automatically attached by the system to every outgoing email. The footer can be used, among other things, to include an attorney-client privilege notice or to address the risks of forwarded emails by putting recipients on notice of the boundaries for acceptable and permissible use of the content of the email.

There are however, no magic words approved by the Court for this purpose.  Also, “Courts have generally held that such a label attached by an attorney means little in deciding whether a communication is entitled to protection under either the attorney-client privilege or the work product doctrine.”

The opinions of the American Bar Association, the Courts and the many state bar associations have varied on the effectiveness of such a footer. However, it appears there is some increased protection in the liability context if attorneys adopt language in their emails that parallels the inadvertent disclosure language applicable in the discovery context.

In California, generally, where it is evident the client had not made the disclosure, the lawyer did not intend to disclose confidential information and the inadvertently disclosed document was clearly marked as confidential, no waiver will be found. See State Compensation Insurance Fund v. WPS, 70 Cal.App.4th 644 (1999).

In California, once an attorney realizes privileged information has been received, the attorney must immediately notify the sender and attempt to resolve the issue. See Rico v. Mitsubishi Motors, 42 Cal.4th 807 (2007); State Comp. Ins. Fund v. WPS, 70 Cal.App.4th 644 (1999).

“While never sufficient to “un-ring the bell” once the privileged email has been read, inadvertent disclosure instructions can increase an attorney’s ability to potentially obtain some relief after discovery of the problem.”

As stated in this article, “as applied to a footer, the language addressing both the risk of forwarded emails or inadvertent emails might contain the following:

 

NOTICE: This email and all attachments are CONFIDENTIAL and intended SOLELY for the recipients as identified in the “To,” “Cc” and “Bcc” lines of this email. If you are not an intended recipient, your receipt of this email and its attachments is the result of an inadvertent disclosure or unauthorized transmittal. Sender reserves and asserts all rights to confidentiality, including all privileges that may apply. Pursuant to those rights and privileges, immediately DELETE and DESTROY all copies of the email and its attachments, in whatever form, and immediately NOTIFY the sender of your receipt of this email. DO NOT review, copy, forward, or rely on the email and its attachments in any way. NOTICE: NO DUTIES ARE ASSUMED, INTENDED, OR CREATED BY THIS COMMUNICATION. If you have not executed a fee contract or an engagement letter, this firm does NOT represent you as your attorney. You are encouraged to retain counsel of your choice if you desire to do so. All rights of the sender for violations of the confidentiality and privileges applicable to this email and any attachments are expressly reserved.”

The inclusion of the above description serves three purposes.

1) it highlights the communications as protected so an unintended recipient cannot claim he was unaware of the privilege issue until after the email was read; 2) it reinforces the intent to preserve and protect the privileged nature of the communication and makes clear no waiver was intended; and 3),perhaps the most significant, it distinguishes the email from other emails that may not be privileged.

Of course, emails still get read, even where they are unintentionally sent. These two steps—changing the footer and the subject line—at least provide some additional protections from those situations.

The above information can also be found in the book, California Legal Malpractice Law.  I have nothing to do with the writing, editing or distribution of this book.

I think I will be editing my footer immediately.  Hopefully, knock on wood, I will never have to worry about this but I would rather be safe than sorry.

 

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A longtime secretary, paralegal and office manager for a since-disbarred California lawyer has been sentenced to two years and three months in federal prison for embezzling $327,000 from the firm and its clients.

The attorney she worked for, Brian Ching, was disbarred in 2012 for his failure to supervise Reyes adequately and other violations of legal ethics rules. An  ABA Journal article provides further details.

This case is a reminder to attorneys that they need to supervise their staff, no matter how much they trust them and a reminder to paralegals that they are not above the law.

 

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Category: Family Law  Comments off

I am sure there are times that attorneys and judges want to go at each other physically, but I never thought we would see it on camera.

Warning, there is profanity in the video.

http://Judge, attorney fight after argument in court

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In an article I posted at my Family Law blog, California Family Law Paralegal, I discussed violence against attorneys, not only by their own clients, but by an opposing party.

The American Bar Association did a poll of attorneys in the mid-90’s and posted the results in an article titled “Lawyers in Harm’s Way.”  This poll revealed that that 60 percent of family lawyers had been threatened by opposing parties, and 17 percent had been threatened by their own clients.

As violence has continued to increase in our nation, I find it interesting that the American Bar Association has not updated this poll of attorneys regarding threats or actual violence towards them.  I am conducting my own poll and ask that you take a moment and answer it, so we as legal professionals can see for ourselves if threats of or actual violence towards attorneys (including paralegals and other staff members) is increasing.

 

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English: New Year's Day postcard mailed in 190...

English: New Year’s Day postcard mailed in 1909. It reads: “A New Year’s Resolution / Jan. 1st / Good Resolution / Each resolution that I make / My conscience surely troubles / Because I find they always break / As easy as Soap bubbles” (Photo credit: Wikipedia)

2013 flew by so fast and I was so busy that I didn’t post anything for months.  Shame on me!  My New Year’s Resolution (I never make them, by the way) is to post more often and to post more articles for paralegals.  That is my goal, we will see if I can do it.

Perhaps someone will have to remind me to post or maybe as a paralegal I should calendar it and stop finding excuses for not posting!

Happy New Year and let’s make this year a better one than last year!

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In an article in the JD Journal a judge hearing the case regarding a McDonald’s in Dearborn has told an attorney to remove all references to the case from a Facebook page he created, according to The Detroit Free Press. The lawyer, Majed Moughni, has been barred from talking about a settlement reached last month with anyone who could be affected by it. The judge ordered that Moughni’s posts be replaced with copies of the settlement. He also has to forward the contact info and names of people who commented on the case or ‘Liked’ the post.

English: The mdonalds logo from the late 90s

English: The mdonalds logo from the late 90s (Photo credit: Wikipedia)

Attorneys who settled the suit with McDonald’s asked the judge to make sure the site was monitored so as to prevent false statements from getting to the public. The settlement was for $700,000 and it was between McDonald’s and multiple groups from the Dearborn Muslim community.

Moughni did not like the settlement, saying it was a backroom deal. He received at least 1,300 people in support of his claims and filed a legal complaint on January 25.

The complaint from Moughni was dismissed by Judge MacDonald on Thursday, saying that he took part in “deliberative and abusive conduct.” She said that copies of the settlement have to be “prominently placed on the Facebook page wall.” He complied and has not posted anything new on the site since posting the settlement copies.

You can read more on this at JD Journal here or at the Detroit Free Press here.

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I can’t believe it is 2013 and another year has flown by.  This past year has been a busy one, personally and professionally.  So much so, that it has kept me from blogging as often as I would like.  I am going to change that, or at least give it my best ‘college try’ as they say, in this new year.

I became a  great grandmother to a beautiful girl in March 2012, Lexi Jo.  She brings laughter and happiness to all of our lives.  I am blessed to have her in my life and enjoy watching her grow each day. lexi (1)

My family is healthy now, with my youngest son finally getting the insulin pump for his type 1 diabetes.  Seems like we waited for this pump forever.  This has helped to maintain his sugar levels and has prevented his having to be in intensive care on a monthly basis.  I know he is happy about this and as his mother, I am thrilled that he no longer needs to be hospitalized frequently.

Professionally in 2012, the law office expanded by adding one more person to our cast of characters.  She is young, smart and is a fast learner.  She seems to be fitting in nicely with all of us.   Our receptionist was promoted to assist me and begin using her paralegal skills.  I know I am happy as can be with this change, and I know she is as well.  I look forward to teaching her all I know and watching her grow in her new position.  With these changes of course, come some challenges.  Figuring out what job duties change and for whom, is one of the biggest challenges.

I hope that all of my paralegal friends are doing well in this new year and that 2013 brings us all happiness, not only personally, but professionally too.  Happy New Year and I look forward to reconnecting with all of you and hopefully connecting with new paralegals as well!

 

 

 

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In a strange, yet interesting article posted in the ABAJournal this week, a former California lawyer who gave up his law license more than a decade ago is facing 13 felony charges, accused of assuming a licensed attorney’s identity and practicing under the other lawyer’s name, including making multiple court appearances for clients in San Mateo County Superior Court.

John Hedderman, 52, was released on $50,000 bail after being charged with practicing law without a license and multiple charges of burglary and identity theft, reports the San Mateo County Times.

According to the article, Hedderman was previously convicted on 12 felony counts after passing himself off as another lawyer in Orange County years ago, the newspaper says. Articles published in 2008 in the Orange County Registerand the OC Weekly provide additional details.

In this latest case, Hedderman is accused of taking on the identity of attorney Donald Welch, when representing a client, Ruben Bisceglia, in a criminal case, making three court appearances on his behalf.

The Daily Journal says that Hedderman worked as a paralegal in the law office of the real Donald Welch, a Southern California practitioner.

You just have to wonder how Hedderman thought he would be able to get away with this!

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I wanted to give a big thank you and shout out to Legaco Express for Paralegals for sharing one of my early posts, “No, I Can’t Give Legal Advice!”  You can find the repost here at Legaco Express.

I am always thrilled when someone in the paralegal field reposts one of my blogs, it is good to know that someone is out there reading my blog, other than family and friends of course.  Thanks Legaco Express for making me feel appreciated!

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Ouch!  That has to hurt!  Running for a judicial seat and then sanctioned and reported to the State Bar.  This just happened to attorney Judy Conard, who practices in Lake County, California.

The First Appellate Court found the appeal to be frivolous and not only sanctioned Ms. Conard $6,000, but issued $15,000 in sanctions against her client as well.

Last October, Theodore Parfet, who lives in Michigan, appealed an order that he pay the attorney fees for Amy Tucker, the Respondent in the Family Law case, incurred while she opposed his motions to modify child custody, visitation and child support, according to the decision, which can be read here.

Ms. Conard said they appealed the amount of attorneys’ fees, which at nearly $80,000 were in excess of what the interim fees were to be.  The three appellate justices found “the degree of objective frivolousness and delay is extremely high,” and that “pursuing a meritless appeal of an attorney fee award under the circumstances of this case flies in the face of the very purpose of the Family Code attorney fees statutes.”  Further, they found that Conard had a professional responsibility not to pursue a frivolous appeal just because her client instructed her to do so, the justices said Conard violated her duties by facilitating the appeal “and by advancing arguments which exceed the bounds of both common sense and sound advocacy.”

The justices also stated “We join other courts in recognizing that the respondent is not theonly party damaged by a frivolous appeal.” ‘Others with bona fide disputes, as well as the taxpayers, are prejudiced by the wasteful diversion of an appellate court’s limited resources.’  The handling of this appeal has imposed a burden on this court.”

 To add insult to injury, Ms. Conard and the court clerk were each ordered to forward a copy of this opinion to the State Bar upon return of the remittitur.  Whether charges will be filed by the bar against Ms. Conard has yet to be seen.  The lesson here for attorneys?  Beware of filing an appeal just because your client wants you to, be sure that there is merit to the appeal, it could cost you, not only monetarily but professionally.
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