Motion to quash service of summons in California due to defective service

A motion to quash service of summons in California due to defective service is the topic of this blog post.

A motion to quash service of summons in California due to defective service is authorized by Code of Civil Procedures section 418.10(a)(1) which states in pertinent part that a defendant may file a motion to quash service of summons on the ground of lack of jurisdiction of the Court over him or her.

The fact that the service of the summons and complaint was defective is the reason that the Court lacks jurisdiction over the defendant.  The Court does not acquire jurisdiction over any defendant unless proper service of the summons and complaint has been made even if the defendant is a resident of California.

If you are not sure whether or not you were properly served with a summons and complaint you should contact an experienced litigation attorney who can review your situation and determine whether filing a motion to quash service of summons is the appropriate way to proceed.

Deadline to file motion to quash service of summons in California due to defective service.

It is very important that you determine whether or not you were properly served before you file any response to a summons and complaint as a motion to quash service of summons must be filed before any answer, demurrer or other response is filed otherwise the defendant has waived their right to object pursuant to Code of Civil Procedure section 418.10(e)(3).

A motion to quash service is known as a special appearance which means that it does not admit the Court’s jurisdiction over the defendant.

However any motion to quash service must be filed in a timely manner to avoid a default being entered.  The hearing date on the motion to quash must not be more than 30 days after the filing of the notice of motion to quash pursuant to Code of Civil Procedure section 418.10(b).

Law authorizing a motion to quash service in California due to defective service.

Code of Civil Procedure section 418.10 states that,

“(a) A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion for one or more of the following purposes:

(1) To quash service of summons on the ground of lack of jurisdiction of the court over him or her.

(2) To stay or dismiss the action on the ground of inconvenient forum.

(3) To dismiss the action pursuant to the applicable provisions of Chapter 1.5 (commencing with Section 583.110) of Title 8.

(b) The notice shall designate, as the time for making the motion, a date not more than 30 days after filing of the notice. The notice shall be served in the same manner, and at the same times, prescribed by subdivision (b) of Section 1005. The service and filing of the notice shall extend the defendant’s time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion, except that for good cause shown the court may extend the defendant’s time to plead for an additional period not exceeding 20 days.

(c) If the motion is denied by the trial court, the defendant, within 10 days after service upon him or her of a written notice of entry of an order of the court denying his or her motion, or within any further time not exceeding 20 days that the trial court may for good cause allow, and before pleading, may petition an appropriate reviewing court for a writ of mandate to require the trial court to enter its order quashing the service of summons or staying or dismissing the action. The defendant shall file or enter his or her responsive pleading in the trial court within the time prescribed by subdivision (b) unless, on or before the last day of the defendant’s time to plead, he or she serves upon the adverse party and files with the trial court a notice that he or she has petitioned for a writ of mandate. The service and filing of the notice shall extend the defendant’s time to plead until 10 days after service upon him or her of a written notice of the final judgment in the mandate proceeding. The time to plead may for good cause shown be extended by the trial court for an additional period not exceeding 20 days.

(d) No default may be entered against the defendant before expiration of his or her time to plead, and no motion under this section, or under Section 473 or 473.5 when joined with a motion under this section, or application to the court or stipulation of the parties for an extension of the time to plead, shall be deemed a general appearance by the defendant.

(e) A defendant or cross-defendant may make a motion under this section and simultaneously answer, demur, or move to strike the complaint or cross-complaint.

(1) Notwithstanding Section 1014, no act by a party who makes a motion under this section, including filing an answer, demurrer, or motion to strike constitutes an appearance, unless the court denies the motion made under this section. If the court denies the motion made under this section, the defendant or cross-defendant is not deemed to have generally appeared until entry of the order denying the motion.

(2) If the motion made under this section is denied and the defendant or cross-defendant petitions for a writ of mandate pursuant to subdivision (c), the defendant or cross-defendant is not deemed to have generally appeared until the proceedings on the writ petition have finally concluded.

(3) Failure to make a motion under this section at the time of filing a demurrer or motion to strike constitutes a waiver of the issues of lack of personal jurisdiction, inadequacy of process, inadequacy of service of process, inconvenient forum, and delay in prosecution.”

The law is well settled in California that once a defendant has filed a motion to quash service of summons on the grounds of defective service that the plaintiff has the burden of proving that the service on the defendant was valid.

Once a defendant files a motion to quash service of summons in California the plaintiff has the burden to prove by a preponderance of the evidence the validity of the service and the court’s jurisdiction over the defendant.

The Courts in the State of California have ruled that a defendant is under no duty to respond to a defectively served summons until a plaintiff shows that service is valid.

A published decision from a California Court of Appeal has stated that a defendant is under no duty to respond to a defectively served summons and may stand mute until a plaintiff makes a showing of the validity of the service to the satisfaction of the court.

This is particularly so when the defendant was served by what is known as “substituted service” as the statutes allowing such service are strictly construed.

And the substituted service must be made at the address where the defendant currently lives even service made at a close relative’s house can be ineffective.

Published decisions from the California Courts of Appeal have stated that the fact that the moving party may actually have notice of the lawsuit does not prevent them from filing a motion to quash if they were not properly served in accordance with California law.

Schedule a free consultation today.

Call (800) 691-2721 and let’s talk about your options.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

California State Court vs. Federal Court

The differences between California State Court and Federal Court are the topic of this blog post.

State courts and federal courts constitute the two kinds of courts in this country.

JURISDICTION:

One of the most important differences between state courts and federal courts is their jurisdiction. The term jurisdiction refers to the types of cases that a court is authorized to hear.

State courts have much broader jurisdiction than federal courts in matters where the average citizen is most likely to be involved such as criminal matters such as robberies, infractions such as traffic violations, and civil matters such as breach of contract cases, family law disputes and personal injury cases.

State courts are not allowed to hear lawsuits against the United States as well as those involving certain federal laws such as antitrust, bankruptcy, copyright, criminal, patent and some maritime cases.

The jurisdiction of the federal courts is limited to the types of cases that are listed in the United States Constitution and specifically provided for by Congress.

As a general rule federal courts only hear:

  • Cases in which the United States is a party;
  • Federal-question jurisdiction cases which involve violations of the U.S. Constitution or federal laws;
  • Diversity jurisdiction cases between citizens of different states if the amount in controversy exceeds $75,000, and
  • Bankruptcy, copyright, patent, and maritime law cases.

However there are cases where both state and federal courts have jurisdiction.

In some cases, both federal and state courts have jurisdiction. This allows parties to choose whether to go to state court or to federal court.

For example the federal courts may hear cases concerning the laws of the State of California if the issue is whether a particular law of the State of California violates the federal Constitution.

Another example would be a case where the conduct is illegal under both federal and state laws.

Both federal and state laws prohibit employment discrimination. This means that an individual can go to a federal or state court to bring a case under the federal law or both the federal and state laws.

A case that involves only a state law can only be filed in a state court.

Other differences between state court and federal court include:

PLEADING STANDARDS:

With the recent decisions of the United States Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) the pleading standards in federal court have become stricter. A plaintiff must state a plausible claim for relief in order to survive a motion to dismiss. Legal conclusions must be supported by factual allegations.

Thus a pleading in federal court must contain more specific allegations than what would generally be required in a California State Court although fraud claims in California must be alleged with specificity.

The stricter pleading standards in federal court have resulted in some plaintiffs having their cases dismissed for failure to state a claim.

DISCOVERY PROCESS:

The discovery process in federal court is different from that used in a California State Court.

The judge that is hearing a case in federal court is much more involved in the discovery process than would be the case with a judge in California State Court hearing a similar case.

For example California law allows a plaintiff to serve to serve written discovery on the defendant as soon as ten days after service of the summons and complaint.

In federal court however, unless you obtain leave of court you cannot propound any written discovery or take any depositions until after the parties and court have participated in the mandatory conference among counsel required by Rule 26(f) of the Federal Rules of Civil Procedure.

Each party in federal court is required by Rule 26 of the Federal Rules of Civil Procedure to disclose facts and information to all other parties in a lawsuit even before they are served with a discovery request. The disclosure must be completed at or within 14 days after the parties Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan.

Unlike California State Court a party in federal court is limited by Rule 33(a)(1) of the Federal Rules of Civil Procedure to propounding no more than 25 written interrogatories, including all discrete subparts unless they have been granted leave of court.  In California State Court a party may propound 35 interrogatories in an unlimited civil case as a matter of right and may even propound more than 35 so long as they attach a special declaration specifying the specific reasons why they need to propound the additional interrogatories.

NO PEREMPTORY CHALLENGE OF JUDGE:

The great majority of judges are impartial and unbiased. However there is always the risk that a party may be assigned to a judge that is not impartial and unbiased and has a bad reputation.

The law in California, specifically Code of Civil Procedure section 170.6 allows an attorney or a party to ligation to file a simple form that can be used to disqualify a judge, court commissioner, or court referee whom an attorney or party has reason to believe is prejudiced against them or their interests. No specific reason needs to be stated. However any peremptory challenge must be filed and served within the time limits specified in section 170.6 and only one peremptory challenge may be filed by any attorney or party pursuant to section 170.6.

In federal court however there is no statutory procedure that allows a peremptory challenge to a judge.  However an attorney or party may file an affidavit to disqualify a judge under the provisions of Tile 28 United States Code, section 144 which states that,

“Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.

The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.”

LEGAL FEES CHARGED BY ATTORNEYS:

Many attorneys charge a significantly higher hourly rate for representing a party in any litigation in federal court. The rationale for the higher hourly rate is the complexity of the federal court system as opposed to a state court.

A party that has the option of filing in either state court or federal court should consult with an experienced attorney who can analyze the facts of their unique situation and recommend the best course of action.

Despite the differences between state court and federal court as described in this article there are situations where it makes more sense to file in federal court instead of a state court.

Schedule a free consultation today.

Call (800) 691-2721 and let’s talk about your options.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

 

 

Working with your attorney when you are the defendant in California

Working with your attorney when you are the defendant in California is the topic of this blog post.

This blog post is part two of a two part series that discusses working with your attorney when you are responding to a complaint.

When you have been served with a complaint in California you generally have 30 calendar days to respond or the court can enter a default against you.  If you want to file a cross-complaint against the person or entity suing you that has to be filed and served with the court at the same time as your answer to the complaint or you will have waived your claim. If you have a claim against another third party that is based on the same set of facts and circumstances as the lawsuit that the plaintiff filed against you a cross-complaint must also be filed and served at the same time as your answer to the complaint or you may have waived your claim.

In order to allow your attorney enough time to prepare an adequate response to the complaint you should contact an attorney as soon as possible once you have been served with the summons and complaint. Due to the short time frame involved it is extremely important that you work closely with your attorney when responding to a complaint as your answer or response must be filed and served before the deadline to respond or the court may enter a default against you.

Your attorney will first want to know how and when you were served in order to determine if you were properly served or not. Assuming that you were properly served your attorney will then ask you to provide them with all of the information that you have regarding the case.

The best way to work with your attorney when responding to a complaint is to develop a roadmap that will allow both you and particularly your attorney to plan a litigation strategy.

If the facts in your case warrant it your attorney may suggest that you file a cross-complaint against the person or entity suing you in order to protect your rights and avoid forfeiture of any causes of action that you may have against them. Let your attorney know as soon as you contact them if you feel that you may have a claim against the plaintiff or another third party that involves the same set of facts and circumstances as the lawsuit that the plaintiff filed against you.

The roadmap that you and your attorney develop will be the basic starting point that will enable your attorney to plan out a comprehensive litigation strategy.

One of the most important aspects of any litigation strategy is the pretrial discovery phase.  This phase was discussed in part one of this series in more detail.  The pretrial discovery phase is when all parties to a lawsuit are permitted to serve the opposing party or parties with certain discovery requests in order to obtain as much information about the case as possible. The pretrial discovery phase is very useful in allowing a party to evaluate the strengths and weaknesses of their own case as well as that of the opposing party; it also allows all parties to better prepare for trial and to make a decision as to whether or not to enter into settlement negotiations.

The more information that you can provide to your attorney the better job that they can do to defend you.

You may think that a particular fact or document is not important enough to mention to your attorney but that can turn out to be a huge mistake. If you are in doubt it is much better to let your attorney know about it as the more information that you can give your attorney regarding your case the more information that they have to plan their litigation strategy.

Never withhold letting your attorney know about any negative facts regarding the case as that can backfire. Your attorney cannot prepare an adequate defense on your behalf unless they have all of the facts whether those facts are positive or negative.

Your attorney has been trained to review all of the information and documents that are provided to them in order to determine which information and documents are useful and which are not. Information that you thought was not important may in fact prove to be useful.

Your attorney will be using the information and documents that you have to determine which affirmative defenses that they will include in your answer. Affirmative defenses are a fact or facts which if they can be proven will defeat or at least mitigate your liability to the plaintiff. Common affirmative defenses include accord and satisfaction, estoppel and the statute of limitations.

For example the statute of limitations in California for the breach of a written contract is four (4) years from the date of the breach. This means that the plaintiff must file their complaint within four (4) years from the date of the breach of the contract or their complaint is barred by the affirmative defense of the statute of limitations and the plaintiff will not be entitled to any damages, providing that the defendant raises the affirmative defense of the statute of limitations.

Affirmative defenses must be raised in a timely manner or the court may decide that you have waived them. It is for this reason that working closely with your attorney is critical, particularly during the pretrial discovery phase.

During the pretrial discovery phase both parties will be serving each other with certain discovery requests.

For example the attorney for the plaintiff will most likely serve your attorney, on your behalf with discovery requests regarding the affirmative defenses that were included in your answer. They will likely ask you to provide all of the facts, individuals and documents that support your affirmative defenses. They may also ask you to admit or deny certain facts, or to admit that certain documents are genuine.  The attorney for the plaintiff may take your deposition as well as the depositions of other individuals that have personal knowledge of important facts regarding the case, or your affirmative defenses.

Your attorney will likely serve the attorney for the plaintiff with discovery requests regarding the information contained in their complaint. There is a good chance that your attorney will take the deposition of the plaintiff, and other individuals that have personal knowledge of important facts regarding their case.

One of the most important things that you can do to assist your attorney is to prepare an accurate summary of your situation that includes all important facts and dates. It is also helpful if you can provide a timeline for your attorney as well.

Staying in close communication with your attorney during the litigation is important so that the attorney can keep you advised of any developments in your case. If you come across any information that you were not previously aware of, or may have forgotten let your attorney know as soon as possible.

Working closely with your attorney in responding to a complaint will pay dividends as that will allow them to present the most effective defense possible. Depending on the unique circumstances of your situation your attorney may be able to achieve a complete victory for you at the trial, or negotiate a fair settlement.

Schedule a free consultation today with Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

 

 

Working with your attorney when you are the plaintiff in California

Working with your attorney when you are the plaintiff in California is the topic of this blog post.

This blog post is part one of a two part series.

The best way to work with your attorney when you are the plaintiff in California and are filing a complaint against any person or company is to develop a roadmap that will allow both you and your attorney to plan how best to present your side of the case in court.

Your attorney will be using the roadmap that you have both developed to enable them to come up with a comprehensive litigation strategy.

It is very important that you work with your attorney closely as that will greatly increase the likelihood you will either reach a favorable settlement or prevail at trial.

This article will discuss the important role of pretrial discovery as well as the various types of pretrial discovery when filing a complaint and how you can work with your attorney in this process.

The pretrial discovery process allows all parties to a lawsuit to request that the opposing party provide them with all information and documents that are relevant to their claims or defenses involved in that particular lawsuit. As a general rule the pretrial discovery process begins soon after the defendant has been served (as soon as 10 calendar days in some cases) although it varies as each case is unique. The pretrial discovery phase ends approximately 30 calendar days before the trial date in most situations.

Working with your attorney during the pretrial discovery phase is very important and can make the difference between winning and losing your case.  The knowledge gained through pretrial discovery can enable your attorney to evaluate the strengths and weaknesses of both your case and the opposing party’s case; preparing for trial, and facilitating any possible settlement.

Most common forms of pretrial discovery.

Most common forms of pretrial discovery:

  • Written interrogatories:

Written interrogatories are questions that are served on the opposing party and typically request that they provide all facts, identify all persons having personal knowledge of the facts, and identify all documents in support of the facts which support their claim or defense.

  • Requests for production of documents:

Requests for production of documents are served on the opposing party requesting that they produce all documents supporting their case, including but not limited to, correspondence, bank and financial records, and other documents that are or may be pertinent to the issues involved in that particular lawsuit.

  • Requests for admission:

Requests for admission are served to the opposing party requesting that they admit or deny certain pertinent facts, and/or admit that certain attached documents are genuine.

Requests for admission are designed to reduce the number of issues that have to be tried or to establish whether or not certain documents such as a contract are genuine. For example in a breach of contract case the plaintiff would serve requests for admission requesting, among other things, that the defendant admit that they signed the contract on a certain date and that a copy of the contract which is attached is a genuine copy of the contract that they signed.

  • Depositions:

Depositions are used to request that the opposing party be questioned under oath, typically in an attorney’s office regarding all matters that are relevant to any of the issues involved in that particular lawsuit.  The party being deposed can also be requested to produce specified documents at the deposition as well. During the deposition a certified shorthand reporter creates a verbatim record of everything that is said during the deposition.

The responding party is required to verify their discovery responses under penalty of perjury except for depositions at which the party being deposed is questioned under oath.

Ways that you can assist your attorney:

There are several ways that you can assist your attorney in advocating more effectively on your behalf and developing a roadmap.

  • Keep your attorney informed:

Tell your attorney every possible fact that might pertain to your case as soon as you hire them.  Also provide your attorney with any and all documents or other items that might be relevant even if you are not sure whether that particular fact is even important. It is always better to disclose all of the information and documents that you have to your attorney. Your attorney has been trained to sift through information and documents to determine which are useful and which are not. Your attorney may be able to use a fact or document you thought was not important as the basis for a creative legal argument.

You should always be truthful when speaking with your attorney as they need to know every unpleasant fact that may come up in the litigation so that they can factor that into their litigation strategy. If you keep any secrets from your attorney that will place your case at greater risk of experiencing negative consequences. Those negative consequences could include a fact that you did not disclose to your attorney that comes up either in a deposition or at the trial. If your attorney is made aware of any negative information as soon as possible after you retain them this will give them plenty of time to prepare defensive maneuvers.

  • Carefully prepare summaries, timelines, and other materials:

Most attorneys will request that you provide them with a summary of all important facts and dates leading up to the lawsuit. Providing a timeline along with a detailed written summary is best although your attorney may prefer that you provide the requested information in another format.

Be sure that whatever information you provide to your attorney is accurate because they will be using that information in filing your complaint and in planning their overall litigation strategy.

  • Search thoroughly for  any documents and information that support your case:

During the course of your lawsuit it is very likely that your attorney will request that you provide them with certain facts or a document relating to an important incident.  Obviously you have much easier access to documents and information about your case than your attorney does.  Always do everything that you can to provide your attorney with whatever facts or documents they have requested as soon as possible.

  • Respond quickly to any requests from your attorney:

Litigation typically has very strict deadlines which your attorney has to work under. Responding quickly to any requests from your attorney will not only allow them to have more time to review the facts or documents that you have provided but will also allow them to do a better job of using what you have provided to prepare your case. If you aren’t able to respond quickly, let your attorney know as soon as possible. Your attorney might be able to get an extension of time from your opponent or the court, or rearrange other matters to accommodate the delay.

Schedule a free consultation today with Nathan Mubasher.

Call (800) 691-2721 and let’s talk about your options.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com

 

Attorney-client privilege in California

The attorney-client privilege in California is the topic of this blog post.

This blog post will discuss the reasons why you should always be truthful with your attorney..

Most people are aware of the term “attorney-client” privilege and realize that it makes communications with your attorney private.  However many people that do not work in the legal profession do not fully understand both the full scope and the unusual power of this particular rule of United States law.

Extent of attorney-client privilege in California.

The attorney-client privilege applies to both civil and criminal matters and in fact it applies to any communication between an attorney and a client, whether in litigation or not.  Any discussions concerning a contract, a will, a real estate deal or a family problem with your attorney is equally privileged.  The attorney cannot reveal what was said or be made to testify about what was said without your express prior consent.

Purpose of attorney-client privilege in California.

The privilege exists so that individuals can freely communicate to his or her legal attorney without worrying that the information may be revealed.  The attorney-client privilege is in fact the most powerful of the privileges enshrined in American law and has fewer exceptions than the doctor-patient, husband-wife, or even clergy-church member privilege.

Its primary purpose is to facilitate a relationship of trust and confidence between the attorney and the client so as to allow the attorney to adequately advise and represent the client. The core belief is that absent full and open communication with one’s attorney, one cannot obtain the full protection that an attorney is supposed to provide to the client in the United States.

The attorney-client privilege is integral to our legal system and is quite possibly one of the most important protections that are granted to individuals in the United States.  The attorney client privilege essentially defines the role assumed by the private attorney which is the protection of the client against all adversaries, including the government of the United States.

The attorney client privilege grants your attorney the right to refuse to disclose information that the government or other legal adversary may attempt to use against you.  In fact the breadth and scope of the attorney client privilege states that your attorney MUST refuse to answer questions or reveal information given to them no matter who wants it.  The attorney-client privilege prevents your attorney and their agents from revealing any information given to them by a client.

Exceptions to attorney-client privilege in California.

There is only one exception. The exception applies if you inform your attorney that you intend to commit a crime which may endanger someone else. In that case the attorney is required to report the facts and details of that particular conversation.

However, this is significant.  It also means that even if you have committed a crime in the past and tell your attorney that, they are legally required to keep that information strictly confidential unless you specifically instruct him or her to communicate it.

However the attorney-client privilege should not be confused with the ability to commit perjury which is the act of testifying falsely under oath.  Ethical rules forbid any attorney from knowingly utilizing perjury to prove his or her case.  If your attorney sees you committing perjury on the stand, he or she may be required to withdraw from the case or at the very least not to allow the perjury to influence the result of the case.

Your attorney can attempt to plan your case around avoiding having to voluntarily disclose any particular harmful facts.  However the attorney cannot intentionally misrepresent the truth, nor assist you in doing so.

The attorney-client privilege results in attorneys routinely receiving information that is extremely confidential even though it may be of vital importance to other persons or the government and they MUST refrain from revealing that information to anyone, including the government and the Courts will stop anyone from seeking to subpoena the attorney or his or her records in to obtain that information assuming you claim your “attorney-client” privilege.  In fact, the State Bar of California is responsible for maintaining a list of attorneys qualified to serve as “Special Master” to accompany peace officers in conducting searches for documentary evidence under the control of attorneys, physicians, psychotherapists and clergy members under the Penal Code so that confidential information on unrelated matters is not freely disseminated to law enforcement.

The attorney-client privilege applies even if you have not paid any money to the attorney or officially hired them.  If you reveal any information to an attorney that you are meeting with the intention to possibly hire that attorney you have created an “attorney-client relationship” for purposes of confidentiality and any information given during the interview is privileged EVEN if you do not hire that particular attorney.

Note that the attorney-client privilege only applies when someone is either your attorney or has met with you to discuss your hiring them to take on your case.

Any communications that you make to your attorney that are done in a public place and are overheard by someone who is not your attorney means that person can be made to testify about what you said.  For example in a hallway, if you say something to your attorney that someone else overhears that is not considered a private conversation.

This means that any communications between you and your attorney should be made in a location in which only your attorney and the attorney’s agents and you can hear or read the information given so that confidentiality is not inadvertently waived.

The attorney-client privilege belongs to YOU, not to the attorney.  Thus you are tasked with the responsibility of ultimately asserting or waiving the privilege.

The attorney-client privilege lasts forever.

If any attorney breaches their legal duty and reveals any confidential information, not only will the information not be entered into evidence in Court in any way, the attorney will almost surely face severe disciplinary action from the California State Bar and you may have the right to sue them for malpractice if their ethical breach causes you to suffer damages.  An attorney can be disbarred for violating the attorney-client privilege.

You should always be truthful when speaking with your attorney as they need to know EVERY unpleasant fact that may come up in the litigation.  If you keep any secrets from your attorney that will place your case at greater risk of experiencing negative consequences.  Those negative consequences could include a fact that you did not disclose to your attorney that comes up either in a deposition or at the trial and catches your attorney off-guard.

Your attorney cannot fight for you if they have doubts about whether you are being truthful with them.  In fact many attorneys will take the time to investigate if they have any suspicions that you are holding something back.  They will do that so the only parties that will be surprised will be the opposing party and their counsel.  Withholding secrets from your attorney will cripple their ability to the best possible job for you.  If you do not trust your attorney to tell them the whole truth you should shop around until you find one that you do trust.

Schedule a free consultation today.

Call (800) 691-2721 and let’s talk about your options.

DISCLAIMER:

Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.

CONTACT INFORMATION FOR NATHAN MUBASHER:

Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com