Category Archives: California Law

By: Khodadad D. “Ko” Sharif, Esq.

Does California Rules of Professional Conduct, Rule 1.15, entitled “Safekeeping Funds and Property of Clients and Other Persons,” govern government agencies that are holding funds for third parties in a civil forfeiture proceeding? More specifically, should cash received or held in civil forfeiture proceedings by the Office of the District Attorney be deposited in one or more identifiable bank accounts labeled “Trust Account?”

California law authorizes the forfeiture of “proceeds traceable to such an exchange” of an illegal controlled substance. Cal. Health & Safety Code § 11470(f). Cal. Health & Safety Code § 11470(f) provides that “the following are subject to forfeiture”:

• All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, or securities used or intended to be used to facilitate any violation of Section 11351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11382, or 11383 of this code, or Section 182 of the Penal Code, or a felony violation of Section 11366.8 of this code, or a felony violation insofar as the offense involves manufacture, sale, possession for sale, offer for sale, or offer to manufacture, or conspiracy to commit at least one of those offenses, if the exchange, violation, or other conduct which is the basis for the forfeiture occurred within five years of the seizure of the property, or the filing of a petition under this chapter, or the issuance of an order of forfeiture of the property, whichever comes first.

Although California law authorizes the forfeiture of “proceeds traceable to such an exchange” of an illegal controlled substance, tracing is required to prove that the source of funds or property that is forfeited is from illicit narcotics activity and not from a legitimate source. People v. $9,632.50, 64 Cal. App. 4th 163, 168-169 (1998). During the forfeiture proceedings and until a judicial order is entered and the case is disposed of, the government must maintain and preserve the funds.

California Health and Safety Code section 11469(h) states,“[u]nless otherwise provided by law, forfeiture proceeds shall be maintained in a separate fund or account subject to appropriate accounting controls and annual financial audits of all deposits and expenditures.” Although the traditional rule of statutory construction is not applicable to the CRPC rules, it is persuasive that “[a] traditional rule of statutory construction is that, absent express words to the contrary, governmental agencies are not included within the general words of a statute.” Wells v. One2One Learning Foundation, 39 Cal.4th 1164, 1192 (2006). We now must turn our attention to the language of the governing rule itself.

California Rules of Professional Conduct, Rule 1.15(a) states “[a]ll funds received or held by a lawyer or law firm for the benefit of a client, or other person to whom the lawyer owes a contractual, statutory, or other legal duty, including advances for fees, costs and expenses, shall be deposited in one or more identifiable bank accounts labeled ‘Trust Account’ or words of similar import, maintained in the State of California, or, with written consent of the client, in any other jurisdiction where there is a substantial relationship between the client or the client’s business and the other jurisdiction.” In reviewing CRPC, Rule 1.0.1. for word or phrase defined, we find that government lawyers are not excluded from CRPC Rule 1.15.  CRPC Rule 1.0.1(c), defines a lawyer or law firm as “”Firm” or “law firm” means a law partnership; a professional law corporation; a lawyer acting as a sole proprietorship; an association authorized to practice law; or lawyers employed in a legal services organization or in the legal department, division or office of a corporation, of a government organization, or of another organization.” Notably, this expansive definition includes, without exception, government lawyers.

It appears that government agencies, including the Office of the District Attorney, are governed by CRPC 1.15, and imposed upon them are the additional obligations of Health and Safety Code section 11469(i), which states: “[s]eizing agencies shall ensure that seized property is protected and its value preserved.” Further, “inherent in Health & Safety Code, § 11469‘s requirement that the value of property be ‘preserved’ is that seized currency be deposited into an interest bearing account, rather than languishing in cash and losing value over time.” People v. $12,601.33, 209 Cal. App.4th 121, 129 (2012).

Thus, not only must all forfeiture funds be maintained as mandated by Health & Safety Code section 11469, but necessarily must be maintained as required by the CPRC, Rule 1.15.

-This article was originally published for the San Diego County Bar Association Blawg. It has been reposted with their permission.

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The content of this blog is provided for informational purposes only, and we are not offering any legal opinions.  If you wish to consult with Sharif | Faust, please contact us to set up a consultation.This blog does not create an attorney-client relationship with Sharif | Faust. To retain Sharif | Faust, you must sign a written attorney-client agreement. Remember, the results in any case depend upon the specific facts in that case. It is important that you consult with a lawyer you trust. By reading this blog, you agree to our Terms of Use.

By: Khodadad D. “Ko” Sharif, Esq.

Incivility may hit a litigant’s pocketbook. In  Snoeck v. ExakTime Innovatiohs, Inc., 96 Cal. App. 5^th 908 (2023), the Court of Appeal affirmed the trial court’s reduction of $457,863 of the plaintiff’s attorney fees in a FEHA fee request. Counsel’s incivility was a factor considered by the trial court in its downward calculation of the reasonableness of the fee request. Incivility is not the skillset of an excellent lawyer deserving of “higher fees” but a factor for the court to consider when adjusting the reasonableness of the fees requested in a downward direction. This is not to punish, but it is a significant factor in the court’s valuation of the reasonableness of the fee request before it.

The court reasoned that “[i]n litigation, attorneys regularly dispute how the law—and what specific law—applies to the facts of a particular case. One side will be wrong. But that does not mean the side that is “wrong” tried to convince the court to adopt a theory it knew was legally erroneous.” (Id. at 924.) Zealous advocacy does not always win a case; a losing argument never invites personal attacks. There is no justification to engage in personal attacks on opposing counsel, even those representing the reprehensible and society’s deviants. Civility is the one skillset that a lawyer cannot compromise, “the [trial] court noted the absence of civility “‘heightens stress and debases the legal profession.’” (Id. at 915.) “[C]ivility is an aspect of skill.” (Id. at 915, quoting Karton v. Ari Design & Construction, Inc. 61 Cal. App. 5th 734, 747 (2021)). Arguably, the lack thereof is not worthy of fees.

How do we test for incivility? It appears to be an objective test of whether a reasonable attorney would “believe that communicating with opposing counsel in such a way . . . [or] antagonizing the trial court [would] help further one’s client’s cause.” (Id. at p. 925.) It is a telling rhetorical question when considering that the court is “not required to find [counsel’s] comments directly caused an increase in . . . fees before applying a downward adjustment to the loadstar.” (Id. at p. 927.) There is no question that “as an officer of the court [an attorney] owe[s] the court and opposing counsel “‘professional courtesy.’” (Id. at p. 922, citing to Lasalle v. Vogel, 36 Cal. App. 5th 127, 132 (2019) quoting Lossing v. Superior Court, 207 Cal. App. 3d 635, 641 (1989).) Incivility stands alone as an unnecessary and dispensable skill set.

Incivility is not the same thing as zealous advocacy. Although Snoeck does not necessarily stand for punishing lawyers for continuous incivility during litigation, it is a “permissible factor” for the court to consider when adjusting the reasonableness of the request for an award of attorney’s fees. In essence, unnecessarily increasing the cost of litigation to address tangential issues is not effective litigation. In Snoeck, the plaintiff’s counsel had accused the defense counsel of “exploiting the Court, utilizing ‘underhanded’ tactics, presenting a ‘sham defense’ and, in general arguing that defense counsel perpetrated a fraud on the court.” (Id. at p.913.) The plaintiff’s counsel further accused defense counsel of “knowingly misrepresenting the law and facts to the trial and appellate courts, misconduct, and lying; referred to counsel’s action as . . . “cringeworthy” [who] sold the court “the big lie”; referred to defense counsel as having viewed the trial court “as an easy mark,” having “made a total fool of” . . . and “exploited” the trust of the trial judge; having committed “a brazen con,” and having “duped” the trial and appellate courts.” (Snoeck, supra, 96 Cal. App. 5th at p. 913.) The trial court found that “[t]he language quoted above is uncalled-for and unacceptable. The plaintiff’s counsel’s ad hominem attacks were unnecessary for the zealous representation of his client.” (Id. at p. 915.) “Civility is not just a moral good. “Attorney skill is a traditional touchstone for deciding whether to adjust a loadstar. Civility is an aspect of skill.’” (Id. at p. 915, quoting Karton v. Ari Design & Construction, Inc., 61 Cal. App. 5th 734, 747 (2021)).

“Those attorneys who allow their personal animosity for an opposing counsel or an opposing party to infect a case damage their reputations and blemish the dignity of the profession they have taken an oath to uphold.” (Id. at p. 930, relying on Crawford v. JPMorgan Chase Bank, N.A., 242 Cal. App. 4th 1265, 1266-1267 (2015).)

In conclusion, as Carl Sandburg famously said, “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell,” with one caveat, never pound on the table and yell.

-This article was originally published for the San Diego County Bar Association Blawg. It has been reposted with their permission.

More Questions?

In future posts we’ll discuss this further. If you have questions beforehand though, please check out the rest of our blog for more information. The content of this blog is provided for informational purposes only, and we are not offering any legal opinions.  If you wish to consult with Sharif | Faust, please contact us to set up a consultation.  This blog does not create an attorney-client relationship with Sharif | Faust. To retain Sharif | Faust, you must sign a written attorney-client agreement. Remember, the results in any case depend upon the specific facts in that case. It is important that you consult with a lawyer you trust. By reading this blog, you agree to our Terms of Use.

By: Khodadad D. “Ko” Sharif, Esq.

For all intents and purposes, an attorney appointed by the court to represent a party is in an attorney-client relationship with the party and bound by the rules of professional conduct. On the other hand, an attorney appointed as a Guardian ad Litem (“GAL”) answers to the court, and represents the ward’s best interest, not their wishes. The GAL does not enjoy an attorney-client relationship with the ward and owes no duty of confidentiality except when the GAL is involved in a privileged matter. “A guardian ad litem is not a party to an action, but merely the representative of record of a party.” Estate of Cochems, 110 Cal. App. 2d 27, 29 (1952). The appointment of a GAL can be under Section 372 of the Code of Civil Procedure or Section 1003 of the California Probate Code. When a person, whether a minor or not, lacks the capacity to make decisions, if the court determines that the appointment of a GAL would help represent their best interest, then a GAL is appointed. “[T]he authority of the guardian ad litem in relation to the suit is equal to what would be the authority of the ward if he were an adult.” In re Guardianship of Price, 61 Cal. App. 592, 599 (1923). Additionally, the GAL is protected by the doctrine of quasi-judicial immunity.

An attorney’s task as the court-appointed GAL is to represent the ward’s best interest, which is not the same as advocating for the ward’s wishes. “While a guardian ad litem’s duty is to act in the ward’s best interests . . .  he or she does not answer to the ward but to the court.” “[T]he guardian ad litem is but an officer and representative of the court.” Serway v. Galentine, 75 Cal.App.2d, 86, 89 (1946). “Thus, as a matter of law, there is no basis for finding an attorney-client relationship between a guardian ad litem and a ward.” McClintock v. West, 219 Cal. App. 4th 540, 555 (2013). He or she “represents the interests of a person in legal proceedings who lacks capacity to represent himself or herself ….” J.W. v. Super. Ct. J, 17 Cal. App. 4th 958, 965 (1993).

The GAL’s duty is to the court and “[t]he court is, in effect, the guardian of the minor and the guardian ad litem is but an officer and representative of the court.” (Serway v. Galentine, supra, 75 Cal. App. 2d, at p. 89). McClintock v. West, supra, 219, Cal. App. 4th, at p. 549. A GAL must act in the ward’s best interest, and it is the court’s task to approve any such requests. The court has a duty to ensure that the GAL protects the ward’s rights. “It is the duty of a guardian ad litem to protect or defend a suit, as the case may be.” Berry v. Chaplin, 74 Cal. App. 2d 652, 657 (1946).

The GAL is the Holder of the Privilege

What if the GAL had to interact with the ward’s lawyer or minor’s counsel? Confusion arises when the court-appointed GAL also holds the privilege. (Evidence Code §953). Although a court-appointed GAL does not owe a duty of confidentiality under California Rules of Professional Conduct, Rule 1.6, given no attorney-client relationship exists, the GAL does hold the privilege on behalf of the ward, where such privilege exists. The GAL’s communication with the ward is protected pursuant to Evidence Code § 953 (b)(1) and (b)(2), “Holder of the privilege” means “[a] guardian or conservator of the client, if the client has a guardian or conservator.” Thus, when necessary, GAL must assert the privilege on behalf of the ward. In this situation, the GAL is the conduit that transfers information from the ward to their attorney. The privilege applies to the GAL.

In De Los Santos v. Superior Court, 27 Cal.3d 677 (1980), the court was presented with the issue of whether the attorney-client privilege was applicable to statements by a minor, made to his mother (and guardian ad litem in the minor’s personal injury case) in response to questions the mother asked the minor at the request of their attorney for the purpose of answering interrogatories and preparing for trial. In holding that the statements were privileged, the court rejected the defendant’s claim that any privilege was waived due to the mother’s verification of the answers to interrogatories. (Id., at p. 685.) “Section 912 of the Evidence Code provides that the privilege is waived with respect to a communication if the holder of the privilege, without coercion, has disclosed a significant part of the communication or has consented to such disclosure by anyone.” (Alpha Beta Co. Superior Court, 157 Cal. App. 3d 818, 829 (1984)). Hence, the communications to the GAL is protected by Evidence Code § 952’s definition of “confidential communication between client and lawyer” if it furthers the interest of the ward, as the result of an intermediary relationship.

“While the guardian ad litem has the power to assent to procedural steps that will facilitate a determination of the ward’s case (Torres v. Friedman (1985) 169 Cal.App.3d 880, 887) the guardian ad litem’s authority is that of ‘an agent with limited powers.’” McClintock v. West, supra, 219 Cal. App. 4th, at p. 549 (Quoting Berry v. Chaplin, 74 Cal. App. 2d 652, 657 (1946)). The power to “assent to procedural steps” and to manage the litigation gives rise to protecting the privileges held by the ward.

Guardians ad Litem Enjoy Quasi-Judicial Immunity When Acting Within the Scope of Their Authority.

“The question, under [Howard v. Drapkin, 222 Cal.App.3d 843, 857 (1990)], is whether a guardian ad litem fulfills a function that is ‘intimately related to the judicial process’ and the answer to that question is yes.” As further discussed in McClintock, “the guardian ad litem’s role is that of a court-appointed officer, who, under the appointment of and under the supervision of the trial court, must act in her ward’s best interests. That is indeed a function intimately related, and indeed, one which the trial court found in this case was indispensible to bringing the case to a conclusion.” McClintock, supra, 219 Cal. App. 4th at p. 551.

“A third class of persons entitled to quasi-judicial immunity includes persons connected to the judicial process who are not public officials, arbitrators, or referees but who serve functions integral to the judicial process and act as arms of the court. This class includes (1) persons appointed by the courts for their expertise, such as . . . guardians ad litem . . .” Holt v. Brock, 85 Cal. App. 5th 611, 622 (2022). A guardian ad litem has immunity from liability for “acts within the scope of the guardian’s authority.” Judicial immunity protects the GAL; otherwise the “ability to act would be compromised if the threat of future liability encouraged a guardian ad litem to put a ward’s wishes above [ward’s] interests.” McClintock, supra, 219 Cal. App. 4th at p. 552.

Conclusion

Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client. The inherent task of a lawyer who is a court-appointed GAL is not always aligned with the ward’s wishes, and that will conflict with the attorney’s obligations and duty owed, except that the court-appointed GAL is not in an attorney-client relationship with the ward. Although a court-appointed GAL must exercise confidentiality in communications with the ward where the ward holds the privilege, the GAL must also disclose what is essential to represent the ward’s best interest as an officer and agent of the court. So long as the GAL acts within the scope of their appointment and duties, they will enjoy quasi-judicial immunity. The best practice for an attorney-appointed GAL would be to advise the parties and the ward that they do not have a confidential relationship.

– This article was originally published for the San Diego County Bar Association Blawg. It has been reposted with their permission.”

More Questions?

In future posts we’ll discuss this further. If you have questions beforehand though, please check out the rest of our blog for more information. The content of this blog is provided for informational purposes only, and we are not offering any legal opinions.  If you wish to consult with Sharif | Faust, please contact us to set up a consultation.  This blog does not create an attorney-client relationship with Sharif | Faust. To retain Sharif | Faust, you must sign a written attorney-client agreement. Remember, the results in any case depend upon the specific facts in that case. It is important that you consult with a lawyer you trust. By reading this blog, you agree to our Terms of Use.