Year: 2019

Rule of Professional Conduct 1.4 imposes a duty on lawyers to communicate with their clients. Whether the attorneys choose to do so through emailing, texting, telephoning, or drafting letters, each of those options is likely available through the phone that often resides in the lawyer’s purse or pocket.

By Carole J. Buckner

In People v. Toledano, 2019 WL 2577211 (June 24, 2019), the court addressed an important question of first impression, holding that the litigation privilege, California Civil Code Section 47, may apply as a defense to a criminal prosecution for extortion based on a settlement demand, where the demand is made in a good faith belief in a legally viable claim, and in serious contemplation of litigation, and the statements made are sufficiently connected to the litigation.  The court in Toledano found that the lower court’s refusal to so instruct the jury was prejudicial error, requiring a reversal of the conviction against the attorney for extortion. Read More

Twice in six months, the Court of Appeal, Fourth Appellate District, Division One, reversed San Diego trial courts that disqualified lawyers—or the whole City Attorney’s Office—for violation of Rules of Professional Conduct, former rule 2-100, current rule 4.2, prohibiting communication with a represented party or person without the other lawyer’s consent: the “no contact rule.”

Appeal moves against the trend, blending its logic and authority with a passionate viewpoint that laments the lost civility of the profession. At the same time, the decision cites law that hints at potential ways to enforce civility rules that heretofore have had only the force of a bully pulpit.

Most lawyers who have some deposition experience have probably experienced a “speaking objection.” Sometimes these speeches are just annoying; sometimes, they amount to an obstruction of the deposition process.