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CALIFORNIA CORPORATE & SECURITIES LAW

Protecting Client Confidences “At Every Peril”

California expects a lot from attorneys when it comes to client confidences and the attorney-client privilege. Evidence Code Section 955 imposes an affirmative duty on every lawyer who received or made a communication subject to the attorney-client privilege to claim the privilege whenever she is present when the communication is sought to be disclosed and she…

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Kalisman v. Friedman – A California Analysis

A few months ago, Vice Chancellor J. Travis Laster issued an interesting decision involving director inspection rights and the attorney-client privilege.  Kalisman v. Friedman, 2013 Del. Ch. LEXIS 100 (April 17, 2013).  Previously, I had posted on two California cases dealing with this issue.  See When is a Director’s Inspection Right Not Absolute? and Defining The…

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Client Secrets Must Be Kept Even When Not Privileged

Yesterday, I discussed whether an SEC attorney might commit an ethical violation by encouraging an attorney to disclose her client’s confidences.  That discussion was prompted by a recent posting by Lawrence A. West addressing whether attorneys may seek whistleblower awards from the SEC.  My post focused on a California attorney’s statutory duty to preserve “at every peril”…

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Does An SEC Attorney Commit An Ethical Violation By Encouraging Whistleblowing Lawyers?

The Harvard Law School Forum on Corporate Governance and Financial Regulation included a comprehensive post by Lawrence A. West which tackles the question of whether attorneys can be award-seeking whistleblowers.  I want to approach the topic from the other direction.  May an SEC attorney actively solicit disclosure of client confidences from a member of the California State Bar? California…

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No Directors, No Officers, No Employees And No Agents – Now What?

Occasionally, a corporation may find itself with no directors and no management.  Yet, the corporation does not cease to exist. One might wonder what use can there be in a corporation deprived of head and limb.  In Melendrez v. Superior Court, 2013 Cal. App. LEXIS 343 (April 30, 2013), the corporation was maintained as a…

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How Much Would You Charge For A Rule 144 Opinion?

Yesterday, the Securities and Exchange Commission announced that it had filed a civil complaint against a California lawyer for “churning out baseless legal opinion letters for penny stocks through his website without researching and evaluating the individual stock offerings.”  According to the SEC, the lawyer advertised a $285 rate for each letter and a “volume…

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Law Firm Uses Attorney-Client Privilege As Shield In Derivative Suit

Nancy Wojtas at Cooley LLP recently brought an interesting ruling to my attention that involves the interplay between derivative litigation and the attorney-client privilege, IP Telesis Inc. v. Velocity Networks Inc., C.D. Cal. Case No.CV 11-09950 RGK (AJWx) (Nov. 5, 2012).  The case involved a derivative suit against a law firm.   The plaintiff charged the law firm with aiding,…

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Can An Attorney Blow The Whistle On His Client?

This month’s issue of California Lawyer magazine includes this long piece discussing the case of Dimitrious P. Biller, a former in-house attorney.  In 2011, an arbitrator order Mr. Biller to pay his former employer $2.6 million in damages and $100,000 in punitive damages.   According to the arbitrator, Hon. Gary L. Taylor (Ret.), Mr. Biller “did the professionally unthinkable: he betrayed…

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Enforcing Form D Filings – A Misguided State Policy

The American Bar Association’s Committee on State Regulation of Securities publishes The Blue Sky Bugle, a newsletter for lawyers who deal with the state regulation of securities.  In a column for the December issue, Alan Parness of Cadwalader, Wickersham & Taft LLP wrote about the enforcement report issued last October by the North American Securities…

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They May Be At The Gate, But Lawyers Are Not Gatekeepers

In the sixth century BCE, the king of Clusium (a city in Tuscany) attacked Rome.  A one-eyed junior officer, Publius Horatius Cocles, took up the task of defending a key bridge, the Pons Sublicius, when his more senior officers were casting about in confusion.  Centuries later, the English historian, politician and poet Thomas Babington MaCaulay immortalized Horatius’ valiant actions in…

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