THE LAW OFFICE OF DENNIS NEGRON

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THE LAW OFFICE OF DENNIS NEGRON
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Introduction

• Getting paid - fee arrangements
• Conflicts of Interest
• Dealing with unrepresented parties
• Rules of Professional Conduct

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Getting Paid Fee Arrangements

• Writing is good, verbal is bad.
• The California Business and Professions Code
  6147 and 6148 provides guidance 6147 deals with
  contingency arrangements that are not normal for
  Landlord and Tenant matters, 6148 provides
• If it is reasonably foreseeable that total
  expense to a client, including attorney fees,
  will exceed one thousand dollars (1,000), the
  contract for services in the case shall be in
  writing.
• At the time the contract is entered into, the
  attorney shall provide
• a duplicate copy of the contract signed by both
  the attorney and the client, or
• a duplicate copy of the contract signed by the
  client's guardian or representative, to the
  client or to the client's guardian or
  representative.

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Getting Paid Fee Arrangements

• The written contract shall contain all of the
  following
• Any basis of compensation including, but not
  limited to
• hourly rates
• statutory fees
• flat fees
• reimbursables
• and other standard rates, fees, and charges
  applicable to the case /transaction
• The general nature of the legal services to be
  provided to the client Inclusions but more
  importantly Exclusions.
• The respective responsibilities of the attorney
  and the client as to the performance of the
  contract cooperation and response.
• All bills rendered by an attorney to a client
  shall clearly state the basis
• the time, rate, sum
• basis for calculation
• or other method of determination of the
  attorney's fees and costs

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Getting Paid Fee Arrangements

• Bills for the cost and expense portion of the
  bill shall clearly identify the costs and
  expenses incurred and the amount of the costs and
  expenses.
• Upon request by the client, the attorney shall
  provide a bill to the client no later than ten
  (10) days following the request unless the
  attorney has provided a bill to the client within
  thirty-one (31) days prior to the request, in
  which case the attorney may provide a bill to the
  client no later than thirty-one (31) days
  following the date the most recent bill was
  provided.
• The client is entitled to make similar requests
  at intervals of no less than thirty (30) days
  following the initial request. In providing
  responses to client requests for billing
  information, the attorney may use billing data
  that is currently effective on the date of the
  request, or, if any fees or costs to that date
  cannot be accurately determined, they shall be
  described and estimated.

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Getting Paid Fee Arrangements

• Failure to comply with any provision of this
  section renders the agreement voidable at the
  option of the client, and the attorney shall,
  upon the agreement being voided, be entitled to
  collect a reasonable fee.
• This section shall not apply to any of the
  following
• Services rendered in an emergency to avoid
  foreseeable prejudice to the rights or interests
  of the client or where a writing is otherwise
  impractical. Confirm after the fact
• An arrangement as to the fee implied by the fact
  that the attorney's services are of the same
  general kind as previously rendered to and paid
  for by the client. Consider general Engagement
  Letter.
• If the client knowingly states in writing, after
  full disclosure of this section, that a writing
  concerning fees is not required.
• If the client is a corporation.

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Getting Paid Fee Arrangements

• Some considerations
• The scope of the representation is often unclear
  at the inception.
• Sound practice dictates confirmation via letter
  specifying what you will be doing
• Limitations or
• Lack thereof.
• Any specific exclusion with a catch all.
• Things offered or suggested and declined.
• Clients do not like CYA letters skillfully
  draft.
• Evictions in specific
• Unclear nature of process
• short and inexpensive
• long and expensive
• is often beyond the control of the counsel

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Getting Paid Fee Arrangements

• Eviction Mills vs. Pro per vs. Full
  Representation
• Eviction mills consist of lawyers who do
  nothing but unlawful detainers. If the matter
  becomes contested he often assigns the case to
  another counsel who prefers litigation matters.
• Pro per some landlords and property management
  firms handle unlawful detainers on their own
• all that ends well
• Broker, Property Manager E O insurance not!
• Full representation - many attorneys require
  larger advances for unlawful detainers than for
  other cases, because the attorney may have to
  invest substantial time in the case before the
  client receives the first bill. Here are some of
  the unknowns
• court appearances
• briefs necessary if the case becomes contested
  and
• collection of a judgment.

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Getting Paid Fee Arrangements

• Types of Agreements
• Contingency Fee - is an agreement for legal
  services under which the attorney is paid only if
  he or she attains a specified result for the
  client (such as securing a money judgment in the
  trial of a personal injury action). A contingent
  fee is generally paid out of the client's
  recovery in the action for which the attorney was
  retained.
• Retainer Agreement - exists when a client pays an
  attorney a specific sum of money to secure that
  attorney's availability over a given period of
  time. The attorney earns the retainer as soon as
  it is paid, since he or she is entitled to the
  money regardless of whether or not any legal
  services are actually performed for the client
• Advance Fee - is usually made to cover expected
  hour fees, costs, expenses, or services in
  connection with a particular case or undertaking
  (such as the incorporation of a business). The
  money advanced under this type of arrangement is
  not earned until the legal service involved is
  actually performed. As a matter of practice, an
  attorney must deposit an advance fee payment in
  an interest bearing trust account.
• Engagement Letter sets forth the parameters of
  a particular engagement or a series of projects
  and the basis for the compensation (normally
  hourly fees). You normally see this type of
  arrangement used by transaction attorneys and not
  litigators. The attorney bills after the
  services are rendered.

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Getting Paid Fee Arrangements

• Terms of the Retainer or Engagement Letter
• identify all persons to be evicted
• explain the consequences of failing to name a
  party who might later assert a claim of
  possession
• If a flat fee
• the number of consultations, in person or by
  telephone, that are included in the fee, and
  their length

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Getting Paid Fee Arrangements

• Limitations
• does not obligate the attorney to
• defend the landlord if the tenant brings an
  affirmative action claim
• ejectment
• one proceeding only
• appeals
• writs
• other procedural options
• Negotiate
• Find alternative space.

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Getting Paid Fee Arrangements

• Fees
• As a general rule your compensation is left to
  the retainer, advance fee or engagement letter.
• Except as expressly provided by statute, the
  "measure and mode" of compensating attorneys are
  left to the agreement of the parties. The
  California Code of Civil Procedure 1021
• Except as attorney's fees are specifically
  provided for by statute, the measure and mode of
  compensation of attorneys and counselors at law
  is left to the agreement, express or implied, of
  the parties but parties to actions or
  proceedings are entitled to their costs, as
  hereinafter provided.

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Getting Paid Fee Arrangements

• Recovery from other party.
• Lease and rental agreements often provides for
  attorneys fees and costs
• Older provisions
• Cover litigation
• Omit ADR
• Omit enforcement
• Omit enforcement of Lease short of litigation

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Getting Paid Fee Arrangements

• ADR
• Concerns
• Fairness
• Waiver of rights
• Prejudice.
• Process
• Negotiation
• Mediation
• Arbitration/Litigation.
• Attorneys fees should be plead as an item of
  damages, because such fees are recovered as
  costs.

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Getting Paid Fee Arrangements

• Non-negotiated Leases
• Attorneys fees and costs recoverable only by the
  Landlord.
• Impact of California Civil Code 1717(a)
  Goose/Gander
• In any action on a contract, where the contract
  specifically provides that attorney's fees and
  costs, which are incurred to enforce that
  contract, shall be awarded either to one of the
  parties or to the prevailing party, then the
  party who is determined to be the party
  prevailing on the contract, whether he or she is
  the party specified in the contract or not, shall
  be entitled to reasonable attorney's fees in
  addition to other costs.
• Under California law, however, such a provision
  is interpreted to provide for recovery of
  attorney fees by the prevailing party, regardless
  of language limiting the right to one party.

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Getting Paid Fee Arrangements

• Danger, Danger, Danger Will Robinson!
• Make and Offer of Compromise and Compromise your
  Client?
• Wong v Thrifty Corp. (2002) 97 CA4th 261, 264,
  118 CR2d 276.
• Tenant Rite Aid (Rite) vacated the premises
• Landlord (Wong) inspected and alleged in a
  letter to Rite you owe 73,188.59 in repairs
• Rite replied to Wong Wong, you are wrong and
  your repairs are only 8,794.09
• Prior to trial Rite made a California Civil Code
  Procedure 998 offer of compromise, for 35,000
  which offer included costs and attorney fees
• Wong said to Rite Rite, you now have the right
  spirit but still not right, I need the right aid
  and your offer does not cover my attorneys fees
  and costs.
• .

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Getting Paid Fee Arrangements

• Rite said to Wong Wong, you are still wrong but
  aid is good and we will aid you to see things our
  way, here is another 998 offer for 43,600,
  (Oops this offer was silent as to costs and
  attorneys fees)
• Wong said to Rite Rite, when you are right your
  are right and Wong accepted and judgment was
  entered accordingly
• After Wong received the payment of the 43,600
  Wong called Rite and said Hi Rite, something is
  not right your check did not include my
  attorneys fees and costs
• Rite said to Wong Wong, you are wrong we
  settled via a 998 compromise and there is no
  prevailing party, therefore it is not right for
  you to ask for your attorneys fees and costs
• Wong said to Rite Rite, I think you need a
  little aid to see things my way and to make
  things right see you in court and bring your
  checkbook
• The court awarded Wong his attorneys fees and
  costs
• Moral of Case Sometimes Wong is right and Rite
  is wrong.

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Getting Paid Fee Arrangements

• As a general rule when the Lease is silent as to
  attorneys fees and costs they are not
  collectible in an unlawful detainer action.
• Exceptions not an exhaustive list
• Mobilehome tenant is entitled to an award of
  reasonable attorney fees and costs as set for in
  the California Civil Code 798.85. Note be sure
  to read California Civil Code 798.86 re damages
  and punitive damages
• Discrimination re the Unruh Act set forth in the
  California Civil Code 51-52

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Getting Paid Fee Arrangements

• Landlords unlawful as set forth in the
  California Civil Code 789.3
• Terminate utilities
• Restrict access
• Remove doors or windows
• Remove Tenants personal property.
• Landlords violation of the protections set forth
  in the California Civil Code 1940.1(b) of the
  residential hotel tenancy rights
• Landlords violation of the protections set forth
  in the California Civil Code 1942.4(b) re the
  statutory habitability requirements
• Landlords violation of California Civil Code
  1942.5(g), re a retaliatory eviction
• Landlords violation of California Civil Code of
  Procedure 527.6(i) re an action to obtain an
  injunction re harassment
• Enforcement of a public interest pursuant to
  California Civil Code of Procedure 1021.5 and
• Enforcement of an important public rights
  California Civil Code of Procedure 1021.8,
  Attorney General is prevailing party.

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Getting Paid Fee Arrangements

• Must have your brains on
• Landlord must consider whether he desires to have
  an attorneys fees and costs provision
• Commercial probably yes
• Residential
• No Rent control probably yes
• Rent control probably no
• Strategic move for both Commercial and
  Residential Landlords
• Limit to certain type actions
• California Civil Code 1717 enforceable
• Only unlawful detainers?
• Mutual for Tenant?

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Conflicts of Interests

• Conflicts check
• Collect accurate and complete information from
  the client
• the names of all clients
• Maiden
• AKAs
• DBAs
• Entities
• Trusts
• Corporations, subsidiaries, affiliates, parent
  etc.
• names of all known opponents
• Interview for the latent conflicts
• witnesses
• third parties
• Payment from third party?

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Conflicts of Interests

• An attorney generally cannot
• agree to accept or continue to represent the
  client without having disclosed in writing
  certain previous legal, business, financial,
  professional, or personal relationships.
• accept or continue to represent a client without
  the client's informed written consent when the
  potential conflict is between that client and
  another client represented by the attorney in the
  same or another matter.
• See California Rules of Professional Conduct
  3-310.

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Conflicts of Interests

• Some Keys
• Writing is good, verbal is bad
• Agreement
• Letter
• Memo
• Invoice
• Existing and personal relationships - disclosure
• Dating
• Directly
• Indirectly
• Social
• Golf
• Clubs
• Ex-family member

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Conflicts of Interests

• Cotenants or Colandlords
• Danger
• High
• Living together - Tenants
• Non-blood related family inheritor Landlord
• Roommates Tenants
• Non-blood related partners Landlord or Tenant
• Low
• Married couple
• Family business blood related minus the grubby
  group

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Conflicts of Interests

• How do parties conflict
• Negotiate or sue
• Fight the eviction or vacate the premises
• Attorneys fees and cost
• Settlement proposals
• Strategy of litigation, or ADR
• Who caused the default
• Win the lawsuit lose the relationship
• Difficult to perform proper disclosure. Clients
  eyes glaze over as you paint the dooms day
  potential conflicts, but you must do.
  Scenarios should be set forth in writing as an
  example but not limited to.

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Conflicts of Interests

• Danger, Danger, Danger, run away.
• My previous attorney was incompetent and I need a
  good attorney!
• Retain and then put your malpractice carrier on
  notice
• I would strongly advise that prior to accepting
  this case contact the previous attorney and
  discuss. Although the attorney may be prohibited
  from relaying too much information often the tone
  is all you need
• Changes of counsel is a danger sign that the
  client may be lying, hard to work with,
  nonresponsive, a bad payor, have unrealistic
  goals for the litigation or about attorneys
  fees, costs and results
• Lies vs. perception
• Communication as an art listening

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Conflicts of Interests

• Avoid representing a "professional deadbeat"
  Tenant or the perpetual litigator Landlord.
• These type of clients often breach whatever
  agreement they have entered into and use
  litigation and you as a convenient extension
  device.

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Conflicts of Interests

• If you turn down a case/client
• Writing is good, verbal is bad
• strong oral warning that the prospective client
  should immediately consult other counsel
• immediately send letter confirming date of
  conference and that you do not represent the
  client
• letter should contain deadlines for statutes of
  limitations of any pleading or other deadline
• inform of the material adverse consequences that
  may result if not represented, (e.g. entry of a
  default judgment and eviction by the sheriff etc)
• refer the rejected party to the local bar
  association lawyer referral service
• refer the rejected party or to the attorney
  listings in the Yellow Pages etc.
• Caution when providing forms for the in pro per

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Conflicts of Interests

• Limited representation what is the deal
• Writing is good, verbal is bad
• Must be specified and in writing
• File answer only
• Attend negotiation
• MSC only
• Mediation only
• Take a deposition - summary
• File a motion to quash service of summons
• Appear at any one hearing on a motion
• To serve written interrogatories or other
  discovery
• Pro per assistance
• Review and comment to a Lease only, client to
  negotiate
• Small lease vs. Large lease
• Sans frugal client
• Asks for A and will pay for A - good
• Demands B but will only pay for A - bad

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Conflicts of Interests

• Contact information and obligation of client to
  be responsive
• ground rules
• logistical arrangements of their relationship
• Fax
• Phones, office, home and cell
• Communication can lead to problems
• special confidentiality and security needs of the
  client
• Client may not want staff to know problem exists
• Client may not want spouse to know problem exists
• Privacy must be maintained

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Conflicts of Interests

• Waiver of attorney client privilege
• Client discloses confidential information to
  others
• Discussion of case with opponent or third party
• Big Boy, Big Girl Syndrome
• Client instructed not to discuss the case with
  anyone, particularly anyone connected with the
  opposing party (innocent disclosures to brokers,
  appraisers, insurance, lenders etc.). Loose lips
  sink ships
• Any inquiry should be diverted.
• Keep Counsel up to date
• client should be instructed to immediately report
  any new and relevant events (emphasis on
  relevant)
• the receipt of any thing from the other party
• Urgent contact procedure
• Voicemail or answering systems
• Hotline cell (long time clients only)
• Follow - up if attorney does not respond within
  twenty-four (24) hours.

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Conflicts of Interests

• Tenant issues
• Landlord Lockout
• Laptop, portable equipment to keep business going
• Important documents
• Irreplaceable items (pictures, heirlooms etc.)
• May win suit and still lose
• Client specific
• ill, disabled, illiterate, or not fluent in any
  language spoken by the you
• Translator
• Home visits
• Social worker

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Dealing with Unrepresented Parties

• Party Represented
• Strictly prohibited per the California Rules of
  Professional Conduct 2-100.
• Parties - officers, directors, or managing agents
  of a corporation or association, and a partner or
  managing agent of a partnership.
• Unrepresented Party
• Extreme caution should be used what do you do
  when politely walking away is not an option
• Suggesting settlement
• Settlement form
• Provide time to review with attorney 72 hours
• Fact or Law
• Impropriety
• Threats
• Gestures

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Rules of Professional Conduct

• Rules of Professional Conduct of the State Bar of
  California, the most recent version of which was
  promulgated July 1, 2004 the California Business
  and Professions Code 6077
• The rules of professional conduct adopted by the
  board, when approved by the Supreme Court, are
  binding upon all members of the State Bar. For a
  willful breach of any of these rules, the board
  has power to discipline members of the State Bar
  by reproval, public or private, or to recommend
  to the Supreme Court the suspension from practice
  for a period not exceeding three years of members
  of the State Bar.
• The rules are also found in the California Rules
  of Court. The conduct of California attorneys is
  governed by these rules.
• We are not governed by the American Bar
  Association's Model Rules of Professional
  Conduct, although the two sets of rules are
  similar in many respects.

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CLOSING REMARKS
Design and Construction
Tenants
Brokers
Landlords
Advisors
Property
Counsel
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CLOSING REMARKS MY THOUGHTS

• When you lose your temper that is not all you
  lose
• Fight hard for your client but fight fair
• Never
• give up
• intentionally embarrass
• take advance of your opponents innocent mistake
• We either prepare for success or failure
• Do the right thing not some of the time do the
  right thing all of the time
• Treat your opponent with courtesy and respect
  even if undeserved
• If you play win at all costs it will

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CLOSING REMARKS MY THOUGHTS

• Kindness is a good thing
• Nice guys do not finish last
• Admit mistakes
• Do not back door if you didnt earn it through
  negotiations dont try to draft it in
• Live within the spirit of the deal
• Silence is golden
• 20 years to build solid reputation and 2 minutes
  to lose it
• Do your best at all times
• Perfection is unattainable but perfection is the
  goal

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Thank You !