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MCLE Article and Self-Assessment Test

Conduct Becoming

By Ellen A. Pansky and Ellen R. Peck 

Ellen A. Pansky is a member of Pansky & Markle in Los Angeles, a firm specializing in the representation of attorneys in ethics and professional liability matters. She is chair of the Los Angeles County Bar Association Committee on Professional Responsibility and Ethics. Ellen R. Peck, a former State Bar Court judge and former ethics counsel to the State Bar and the American Bar Association, is a sole practitioner in Malibu. 

Perhaps the most striking message from last year's refinements to the regulation of attorney ethics and professional responsibility in California is the continuing eagerness of the courts, the legislature, and the State Bar to control attorney conduct and practices. Not only have the courts continued to address issues arising from the legal representation of clients in matters pending before them (including the disqualification of counsel and fee disputes, among others), the California Supreme Court and the State Bar also issued new disciplinary rules and ethics opinions, and the legislature continued its independent effort to regulate the practice of law. 

This trend does not appear to be losing steam and will most likely continue in coming years. Vigilance, as ever, is advised: attorneys should make sure they read the advance sheets and monitor State Bar publications to ensure that no inadvertent failure to comply with new regulatory standards is made. Such a failure could result in an event reportable to the State Bar or a malpractice carrier. 

The legislature and the courts in recent years have been active in limiting the nature and scope of permissible public, extrajudicial comments by attorneys concerning their clients' pending cases.1 In 1996, the legislature and the Ninth Circuit slowed this trend in two narrow areas: the litigation privilege and the exhibition of "offensive personality." 

Shahvar v. Superior Court2 involved the pre-filing facsimile transmission of a complaint to a newspaper. The Sixth District Court of Appeal held that the litigation privilege contained in Civil Code Section 47 does not extend to an attorney's provision of litigation-related materials to a nonparty to the action. A libel action could be maintained against an attorney for dissemination to a nonparticipant of libelous statements contained within a pleading.3 

Effective January 1, 1997, the legislature amended Civil Code Section 47(d) with a legislative finding expressly overruling Shahvar. The new Section 47(d) encompasses within the litigation privilege a fair and true report in, or a communication to, a public journal, regarding: 

  • A judicial, legislative, or other official public proceeding.        
  • Anything said in the course of the proceeding.        
  • A verified charge or complaint made by a person to a public official that has led to the issuance of a warrant.
If an attorney responds to a request by a member of the media to send a copy of a pleading filed in a pending court case, the attorney may claim the litigation privilege in a subsequent action for slander or libel.

No silver lining comes without a cloud: in subsection (d)(2), the legislature excluded from the litigation privilege any communication to a public journal that: 

  • Violates Rules of Professional Conduct of the State Bar of California, Rule 5-120 (restricting extrajudicial statements pertaining to pending adjudicative proceedings);        
  • Breaches a court order; or        
  • Violates any requirement of confidentiality imposed by law.
The duty of every California attorney to abstain from displaying an offensive personality has been in place since 1872 as part of the Business and Professions Code.4 Last year, the Ninth Circuit Court of Appeals, on a rehearing in U.S. v. Wunsch,5 reversed a district court order imposing discipline upon an attorney for violation of that duty and declared the statute void for vagueness.

The attorney in Wunsch had represented a husband, his wife, and their daughter simultaneously in a criminal tax prosecution in federal court in the Central District of California. The U.S. attorney successfully moved for disqualification on the grounds that the attorney represented conflicting interests and on the fact that he had previously represented two accountants the government intended to call as witnesses during its case in chief. Eight days after being disqualified, the attorney sent his opposing counsel, a woman, a letter containing sentences from an article in a legal journal on the negative gender stereotyping of women attorneys in movies and television. The attorney had attached the following photocopied excerpt: 

Male lawyers play by the rules, discover truth and restore order. Female lawyers are outside the law, cloud truth and destroy order.6 Two days later, the government filed a motion requesting the imposition of discipline against the attorney on the basis of a violation of the duty to abstain from offensive personality7 and for engaging in conduct that degrades or impugns the integrity of the court or in any manner interferes with the administration of justice.8 Thereafter, the district court found that by sending the letter the attorney had violated several local rules, ordered him to write a letter of apology, and referred the matter to the Central District's Standing Committee on Discipline for further action. On appeal, the Ninth Circuit reversed the district court and held that the statute prohibiting offensive personality was unconstitutionally vague.9 

In Wunsch, the Ninth Circuit reached a number of important conclusions regarding the powers of courts to control the proceedings before them and the attorneys who appear in those proceedings. The court rejected the argument that the attorney had not entered an appearance in the proceeding, since he appeared at the disqualification hearing and would have continued representation of the parties if permitted by the court.10 The court also concluded that there was an adequate nexus between the conduct and the district court's ability to control the proceedings, since the conduct occurred as a direct result of the court's adverse ruling against the attorney, and the substance of the communication related to his perception of opposing counsel's conduct during that proceeding.11 

However, the court reversed the finding that the attorney's conduct impugned the integrity of the court, observing that the letter to opposing counsel had not mentioned the judiciary, did not imply an attack on the motivation, integrity, or competence of the judge, and did not by imputation malign the judiciary by its attack on the prosecution.12 The court similarly rejected the argument that the conduct interfered with the administration of justice, stating that there was no factual basis showing a "substantial likelihood of material prejudice" to an adjudicative proceeding-a fact that must be demonstrated before a lawyer may be disciplined for extrajudicial comments.13 

Interestingly, two arguments offered by the State Bar in support of upholding the constitutionality of Business and Corporations Code Section 6068(f) were rejected. First, the court rejected the argument that the California courts had sufficiently narrowed the interpretation of Section 6068(f) to survive a void-for-vagueness challenge, noting that a review of California case law "fails to reveal a single controlling decision-much less a clear line of authority-that either specifically discusses the scope of [S]ection 6068(f) or explicitly limits its applicability to, e.g., courtroom interactions."14 Second, the court rejected the argument that the State Bar's recently adopted enforcement policy limiting the enforcement of Section 6068(f) to administration-of-justice issues would suffice. The court found that the State Bar failed to show that the new policy, rather than a mere enforcement strategy, represents an authoritative construction that would be binding on the courts. 

Finally, the court held that [S]ection 6068(f) was void for vagueness because it does not sufficiently identify the conduct that is prohibited: 

"Offensive personality" could refer to any number of behaviors that many attorneys regularly engage in during the course of their zealous representation of their clients' interests, [so] it would be impossible to know when such behavior would be offensive enough to invoke the statute.15 

The court similarly held that the statute's imprecision could lead to discriminatory enforcement and would have a chilling effect on speech that is constitutionally protected.16 

Although the courts may have the power to regulate the nature and extent of statements during a proceeding or within the presence of the court, exercising careful judgment and responsibility in making extrajudicial statements will keep attorneys from becoming a test case.17 At a minimum, extrajudicial statements must comply with Rule 5-120. 

"Cash up front" is still one of the most frequent ways attorneys ensure they get paid by their clients. But what should a lawyer do with the funds upon receipt? Two important cases and a proposed rule to be added to the Rules of Professional Conduct suggest that lawyers soon may be required to deposit all funds advanced for future legal services in client trust accounts. 

The California Supreme Court has never imposed discipline for a violation of the trust account rule (present Rule 4-100(A), formerly Rule 8-101(A)) when an attorney failed to place advanced fees in a client trust account.18 The legislative history of Rule 4-100 clearly expresses an intent that funds advanced for the future performance of legal services are not within the scope of the rule.19 

Since the adoption of Rule 4-100, the State Bar has attempted to persuade the state supreme court to add a provision requiring the placement of all advanced funds for the provision of future legal services in a client trust account until after the legal services are rendered.20 In early 1997, the State Bar Board of Governors approved another proposal requiring the placement of advanced fees, including fixed- and flat-rate fees, in a client trust account (proposed Rule 4-110). This proposal currently is being circulated for public comment. 

In SEC v. Interlink Data Network of Los Angeles, Inc.,21 the Ninth Circuit held that under the particular terms of an attorneys' fees agreement, an advance paid by a client under an SEC investigation was an advance against future attorneys' fees, and the portion of the fees that was not needed to pay the attorneys for the services already rendered may be the property of the client for the purposes of determining whether the deposit was subject to a freeze of the client's assets. 

The SEC filed a civil action alleging securities fraud and concurrently obtained a restraining order freezing any assets held for the benefit of Interlink. The order was silent regarding advanced attorneys' fees. At the time the restraining order was issued, the law firm had received $70,000 from Interlink, had performed about $28,000 worth of legal services, and held the remaining funds. Thereafter, a judgment was rendered requiring Interlink to disgorge $12 million, the amount of the funds of the defrauded creditors. The SEC sought the balance of funds held by the firm. 

The Ninth Circuit Court of Appeals rejected the firm's claim that Interlink's payment was a classic retainer-a sum of money paid by a client to secure an attorney's availability over a given period of time and considered to be earned at the time of payment since the attorney is entitled to the money whether or not any services are actually performed for the client. Rather, the court held that money given as an advance deposit against future fees constitutes property held in trust for the benefit of the client and, therefore, is the property of the client. 

In reaching its decision, the court was influenced by the fact that the fee agreement between the firm and Interlink required the firm to maintain the advance deposit in a clients' trust account, and the advance deposit was to be used to pay costs, expenses, and fees for legal counsel, rather than to ensure the availability of counsel. Under the agreement, the firm would not use the funds until Interlink had been presented with an invoice. Further, the agreement expressly provided that any excess would be refunded to Interlink upon termination. 

Regardless of whether a fee is considered by the attorney or the client to be nonrefundable, the treatment of the fee as an advance against future services will control. If the terms of the agreement demonstrate that the funds actually belong to the client until earned, and the unearned portion is to be refunded to the client, a characterization of the fee as a classic, or true, retainer will not govern. 

Under similar facts, the Los Angeles Superior Court Appellate Department has held that the failure to deposit an advanced fee in a client trust account constitutes a breach of fiduciary duty and professional negligence. In T & R Foods, Inc. v. Rose,22 an attorney was the sole owner of a law corporation. In 1986, plaintiff T & R Foods paid a $25,000 "evergreen" retainer against which fees would be charged and which was to be replenished monthly to maintain the $25,000 balance. In 1994, when the attorney died, the law corporation had about $24,000 in its general business account, representing the remaining balance on the advance for fees. T & R filed a suit based on several theories, including breach of fiduciary duty and professional negligence, seeking a refund of the remaining advanced fee, but lost at trial.23 

The appellate department, relying heavily upon a federal bankruptcy decision, In re Montgomery Drilling Co.,24 held that the attorney had a duty to segregate the funds until they were earned. Montgomery Drilling Co. identified three types of retainers: 

1) A classic or true retainer is the payment of a sum of money to secure availability over a period of time. Entitlement to the fee vests whether or not legal services are ever rendered. 

2) A security retainer is held by the attorney to secure payment of fees for further services that the attorney will be expected to perform on the client's behalf. The security retainer is not a present payment for future services but remains property of the client until the attorney applies it to charges for services actually rendered. Any unearned fees are returned to the client. 

3) An advance payment retainer is the client's payment in advance for some or all of the services that the attorney is expected to perform on the client's behalf. This differs from the security retainer in that ownership of the funds is intended to pass to the attorney at the time of payment.25 

Relying upon Montgomery Drilling and the Bar Association of San Francisco Legal Ethics Opinion SF 1980-1, the appellate department in T & R Foods concluded that Rule 4-100 required an advanced fee to be segregated until earned (while expressly noting the Montgomery Drilling statement that the issue of the ownership of advanced retainer fees is undecided under California law).26 The opinion also imposed personal liability on the attorney for breach of fiduciary duty and found legal malpractice in the attorney's failure to deposit the advanced fee in a client trust account.27 

Whether advances will have to be disgorged is an open question; however, unless an advance can be classified as a classic retainer as described in Montgomery Drilling, it must be on deposit in the client's trust account until disbursed for the benefit of the client.28 Whether or not advanced fees are held in trust, the unearned portion remaining after the services are completed must be returned to the client upon termination of the relationship, except in classic retainer situations.29 

Most fee agreements between attorneys and clients are not true or classic retainers. No matter where the funds are on deposit, unless the surrounding facts and circumstances support the funds being received exclusively to ensure availability and not to compensate the attorney for services rendered, the fee is not a true retainer. 

There is a developing trend toward characterizing any advanced funds received for future performance of legal services as unearned until the legal service is performed. While the courts have not yet expressly held that a fixed fee paid in advance is within this category, it appears that an advanced fee to be credited against future services will not be deemed earned upon receipt. 

Regardless of the label placed on funds, the courts will look to the true nature and purpose of the payment in determining its character and whether it is required to go into the client trust account. In light of potential civil and disciplinary liability for failure to return unearned fees upon termination of the lawyer-client relationship, a safer practice is to view all advanced fees as funds being held for the client's benefit pursuant to Rule 4-100(A), with all advances for fees placed in a client trust account, and funds withdrawn only as they are earned. 

Security deposits, as defined in T & R Foods, must be held in a client trust account since these funds continue to belong to the client until the client fails to pay for services as billed. An accounting should be rendered to the client for any disbursements relating to advanced fees paid for future legal services to be performed on an hourly rate.30 

Failing to pay a client's creditor in the absence of an enforceable lien is not conduct for which an attorney may be disciplined.31 Indeed, absent a valid claim by a third party, the attorney's paramount duty is to the client. The converse is true if the attorney knowingly disburses a third party's funds, subject to a lien, to the client; in the latter case, the attorney is liable to the "true owner." 

Kaiser Foundation Hospitals v. Aguiluz32 held that an attorney is personally liable to the lienholder for settlement proceeds disbursed to a client in knowing disregard of the health care provider's lien. The Kaiser Foundation Health Plan paid more than $23,000 of the medical expenses of a personal injury client who was a member of the plan. The client acknowledged in writing that his contract required him to reimburse Kaiser from any funds paid by a third party, and also agreed that he authorized his attorney to disburse directly to Kaiser any monies received from a settlement or judgment. The attorney was not a party to this agreement but did have notice of Kaiser's lien. The client's personal injury action was settled for $85,000, but neither the client nor the attorney repaid Kaiser any of the medical expenses it had paid on behalf of the client. 

Thereafter, Kaiser sued both the client and the attorney for breach of contract and constructive trust. After settling with the client, Kaiser proceeded to obtain a judgment against the attorney. Upon appeal, the attorney argued that, while the contractual obligation between Kaiser and the client gave rise to an equitable lien against the client, no lien had been created that was enforceable against the attorney. 

In affirming the judgment, the appellate court relied heavily upon Miller v. Rau,33 which established that an attorney on notice of a third party's contractual right to funds received on behalf of the attorney's client disburses those funds to the client at the attorney's own risk. The Kaiser court also held that an attorney has an affirmative duty to hold in trust the amount that a third party claims until the dispute is resolved, or to file an action in interpleader.34 

Assertion of a claim by third parties pursuant to a lien, contract, or assignment upon a particular fund or client's property in an attorney's possession requires careful analysis of 1) the legitimacy of the lien; 2) whether the client disputes the lienholder's claim; and 3) a course of action to hold the property as a neutral escrow holder while the dispute is resolved or, alternatively, filing an action in interpleader.35 

In Jackson v. Ingersoll-Rand Co.,36 the appellate court reversed the disqualification of defense counsel who had communicated with an unrepresented party-the plaintiff's former spouse. More than two years earlier the plaintiff's former spouse had been dismissed from the action and later disavowed being represented by the plaintiff's counsel. The appellate court noted: 

Contrary to respondent's view, an attorney who once appears on behalf of a client does not remain "counsel of record" until time immemorial, forever excluding other attorneys from contacting the former client. Rule 2-100 is designed to preserve existing attorney-client relationships, not to grant an attorney hegemony over former clients through which he or she can obstruct the opposing party's investigation of its case. Just as a corporation cannot preclude opposing counsel from contacting its former employees who may disclose unfavorable facts, an ex-husband cannot preclude opposing counsel from contacting his former wife who may disclose unfavorable facts. [Citation.] We do appreciate respondent's concern that [the plaintiff's former spouse] may disclose privileged spousal or attorney-client communications in conversations with opposing counsel, but that concern may be addressed by a narrowly tailored protective order.[Citation.]37 

In 1994, the Second District Court of Appeal, in Shadow Traffic Reporting v. Superior Court,38 found that there is a rebuttable presumption that a party has shared confidential and privileged information with a prospective expert witness, even if the expert is not actually retained. The court ordered disqualification of an entire law firm on account of the interview by two attorneys of the opposing party's prospective expert, on the grounds that a reasonable expectation of privacy had been demonstrated by the objecting party. 

Last year a court carved out an exception to the Shadow Traffic rule. In Toyota Motor Sales, U.S.A., Inc. v. Superior Court (Chavez),39 the court declined to disqualify a plaintiff's firm that retained an expert who had previously been a defense expert on a similar case involving the same product. The court based its ruling on the fact that the expert had never acquired confidential information from opposing counsel; all conversations had been limited to discussions concerning the expert's opinions, which were revealed in the litigation; and the expert never received any confidential documents or material. 

Business and Professions Code Section 6200(c) was amended in 1996 to permit a client to agree in writing to mandatory arbitration of all disputes concerning fees or costs. The statute does not require that the attorney wait until a dispute arises before obtaining the client's agreement to mandatory arbitration. In contrast, Business and Professions Code Section 6204(a) was amended to clarify that the parties may agree to be bound by an arbitrator's award only after the dispute over fees or costs has arisen. 

Business and Professions Code Sections 6147 and 6148 require disclosure in a fee agreement that an attorney does not maintain "errors and omissions insurance coverage." This provision originally was set to expire on January 1, 1997, but the sunset clause was revised to extend the requirement until January 1, 2000. 

In Formal Opinion No. 1996-147, the State Bar's Standing Committee on Professional Responsibility and Conduct found unethical double billing in circumstances in which an attorney bills one client for travel time and bills a second client for performing legal services while traveling for the first client. 

The joint-client exception40 to the attorney-client privilege does not apply when an attorney acts in a dual capacity, representing two clients in two different, though possibly related, matters. In Fletcher v. Superior Court (American Cancer Society),41 an attorney represented a husband and wife in family matters including estate planning. The same attorney had represented the wife in her capacity as trustee for her sister's trust; further, the attorney had represented the sister in preparing an earlier trust and pour-over will. 

In an action to determine the validity of a later trust, a beneficiary, the Salvation Army, sought to discover the sister's intent and capacity as reflected by her communications with counsel. Although the attorney revealed the sister's statements, a privilege was asserted with respect to communications with the wife. The Salvation Army asserted that there was no privilege for the attorney's communications with the wife while she was trustee, pursuant to Evidence Code Section 962. The court ruled that Section 962 only applies when adverse litigants previously had been clients in joint matters. The charity had never been the attorney's client, so the privilege protected the wife's communications with her attorney. 

The court also rejected the argument that there is no privilege for a communication relevant to an issue between parties of a deceased client. The court held that Evidence Code Section 957 was meant to apply only to communications between the decedent and the decedent's attorney. It does not apply to a claimant and the claimant's attorney, even when the decedent and the claimant were represented by the same attorney.42 

The Sixth District Court of Appeal, in People v. Ngo,43 found that ineffective assistance of counsel resulted per se from a criminal defendant's lawyer being placed on inactive status during the pendency of the criminal proceeding. The supreme court reversed and remanded, holding that the representation of a criminal defendant at a sentencing hearing by an attorney who was enrolled on inactive status for noncompliance with the mandatory continuing legal education requirements does not itself amount to ineffective assistance of counsel. The court contrasted the administrative character of inactive status with disciplinary suspensions that involve an element of unfitness to practice, noting that enrollment on inactive status does not inherently involve incompetence or lack of fitness. 

The California Supreme Court adopted, as part of the Rules of Professional Conduct, new Rule 1-311, effective August 1, 1996, that precludes an attorney or law firm from hiring a disbarred or suspended attorney, or one who has resigned with disciplinary charges pending, to perform most law-related tasks, including legal advice, appearances at any proceeding (including those which otherwise permit lay representatives to appear), negotiations, and handling client funds. Moreover, even if the suspended/resigned/disbarred individual is employed to perform paralegal or law clerk duties, such as research, drafting, or clerical support, the employer-attorney or law firm must provide written notification to the State Bar and each client on whose behalf the employee will work. 

1 See, e.g., Bus. & Prof. Code §6103.7, adopted in 1994 and now inoperative, which required adoption of a rule as part of the Rules of Professional Conduct (Rule 5-120) limiting extrajudicial public statements to the media. 

2 Shahvar v. Superior Court, 25 Cal. App. 4th 653 (1994). 

3 See also Susan A. v. County of Sonoma, 2 Cal. App. 4th 88 (1991). But see Abraham v. Lancaster Community Hospital, 217 Cal. App. 3d 796 (1990), which found that the Civ. Code §47 privilege included transmittal of privileged pleadings to the press. 

4 Bus. & Prof. Code §6068(f). 

5 U.S. v. Wunsch, 84 F. 3d 1110 (9th Cir. 1996). 

6 Id. at 1113. 

7 The State Bar Act, along with the Rules of Professional Conduct, were incorporated as standards of conduct for the Central District through Local Civil Rules of Practice for the U. S. District Court, Central District of Cal. [hereinafter Local Rules], Rule 2.5.1. 

8 Local Rules 2.5.2. 

9 Wunsch, 84 F. 3d 1115. 

10 Id. 

11 Id. at 1115-16. 

12 Id. at 1116. 

13 Id. at 1117. 

14 Id. at 1118. 

15 Id. at 1119. 

16 Id. 

17 Bus. & Prof. Code §6068(b) requires maintenance of respect toward the judiciary. Snyder v. State Bar, 18 Cal. 3d 286 (1976). 

18 See Baranowski v. State Bar, 24 Cal. 3d 153 (1979); Baker v. State Bar, 49 Cal. 3d 804, op. mod., 50 Cal. 3d 30 (1989); Read v. State Bar, 53 Cal. 3d 394, op. mod., 53 Cal. 3d 1009 (1991) (the supreme court declined to find culpability for violation of the trust account rule on the basis that funds advanced by clients had not been deposited into a client's trust account until the legal services were rendered). 

19 The concept of including in Rules of Professional Conduct, Rule 4-100 (A), a requirement that advances for fees be placed in the client trust account was considered but rejected because it was believed that such a provision is unworkable in light of the realities of the practice of law. See In the Matter of the Proposed Amendments to the Rules of Professional Conduct, California Supreme Court Bar Misc. 5626, at Request that the Supreme Court of California Approve Amendments to the Rules of Professional Conduct of the State Bar of California; and Memorandum and Supporting Documents in Explanation, Dec. 1987, at 42. See also Proposed Amendments to the Rules of Professional Conduct, 1 Proposed Rules and Legislative History 33 (1988). 

20 The State Bar in 1992 submitted to the California Supreme Court proposed new Rules of Professional Conduct, Rule 4-100(B), for approval: 

Unless a written fee agreement expressly provides that a fee paid in advance is earned when paid or is a true retainer (as set forth in [R]ule 3-700(D)(2), all advance fees received shall be deposited in one or more bank accounts defined in [Rule 4-100] paragraph (A). 

After the State Bar received a letter in May 1995 from the court concerning a perceived ambiguity, the rule was restudied. 

21 SEC v. Interlink Data Network of Los Angeles, Inc., 77 F. 3d 1201 (9th Cir. 1996). 

22 T & R Foods, Inc. v. Rose, 47 Cal. App. 4th Supp. 1 (1996). 

23 Id. at 4-5. 

24 In re Montgomery Drilling Co., 121 Bankr. 32 (Bankr. E.D. Cal. 1990). 

25 T & R Foods, 47 Cal. App. 4th Supp. at 7. 

26 Id. 

27 Id. at 7-10. 

28 Rules of Professional Conduct, Rule 4-100(A). 

29 Rules of Professional Conduct, Rule 3-700(D)(2). Discipline is frequently imposed for lawyers' failure to return unearned fees upon termination. 

30 See In the Matter of Fonte, 2 Cal. State Bar Ct. Rptr. 752, 758 (Rev. Dept. 1994). 

31 In the Matter of Riley, 3 Cal. State Bar Ct. Rptr. 91, 114 (Rev. Dept. 1994). 

32 Kaiser Foundation Hospitals v. Aguiluz, 47 Cal. App. 4th 302 (1996). 

33 Miller v. Rau, 216 Cal. App. 2d 68 (1963). 

34 Kaiser Foundation Hospitals, 47 Cal. App. 4th at 305. 

35 Some courts have applied the contractual provision contained in lien agreements that grants attorneys' fees to the prevailing party in order to allow attorneys' fees to the prevailing defendant in the interpleader action. Thus, the filing attorney must be cognizant of such provisions in the claimant's contract to avoid being compelled to pay attorneys' fees to the other parties in the interpleader. 

36 Jackson v. Ingersoll-Rand Co., 42 Cal. App. 4th 1163 (1996). 

37 Id. at 1169. 

38 Shadow Traffic Reporting v. Superior Court, 24 Cal. App. 4th 1067 (1994). 

39 Toyota Motor Sales, U.S.A., Inc. v. Sup. Ct. (Chavez), 46 Cal. App. 4th 778 (1996). 

40 Evid. Code §962. 

41 Fletcher v. Sup. Ct. (American Cancer Society), 44 Cal. App. 4th 773, 777-78 (1996). 

42 Id. at 778-80. 

43 People v. Ngo, 14 Cal. 4th 30 (1996). 

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