California Bar Journal
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Ethics update...
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Selected cases in the area of professional responsibility are covered.

Margolin v. Shemaria (2000) 102 Cal.Rptr.2d 502
In a breach of contract action, the Court of Appeal refused to enforce a fee sharing agreement between attorneys. Attorney representing a client on a family law matter referred her client to a personal injury lawyer to handle a tort matter. It was agreed that the attorneys would split the fee in the tort case.

It also was agreed that the personal injury attorney would prepare a retainer agreement that would provide the written disclosure and obtain the client’s written consent to the fee sharing arrangement as required by California Rule of Professional Conduct 2-200. Al-though the client allegedly was present during discussions about the fee splitting arrangement, it was undisputed that the personal injury attorney did not provide a written disclosure nor obtain the client’s written consent.

In rejecting the referring attorney’s equitable estoppel argument, the Court of Appeal reasoned that requiring a client’s written consent is an important public policy that impresses on a client their right to reject proposed attorney fee sharing. Additionally, written consent benefits the involved attorneys because it serves as evidence of the existence of the fee-sharing agreement and helps ensure that the client will not later claim there was no consent.

Barner v. Leeds (2000) 24 Cal.4th 676
The California Supreme Court affirmed a Court of Appeal judgment reversing the lower court’s finding that a deputy public defender was immune from a legal malpractice action brought by a convicted criminal defendant. The California Supreme Court concluded that the actions of a public defender in representing an assigned client in a criminal action generally do not involve the type of policy decisions that are within the scope of immunity afforded by Government Code 820.2.