The Right to Asylum · the actual legal framework for asylum seekers has had a checkered career Plus: Earn MCLE credit. MCLE Test No. 297 appears on page 21. 24 Generic Branding BY

THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION

PLUS

MARCH 2020 / $5

EARN MCLE CREDIT

Los Angeles lawyers Judith L. Wood (right) and Federica Dell’Orto delineate the currentlegal framework of U.S. asylum law againstthe historical evolution of U.S. asylum policypage 18

SCOTUSDeterminationof Genericness

page 24

The Right to Asylum

Bane ActGuidancepage 10

Limited ScopeRepresentationpage 14

Bane ActGuidancepage 10

Limited ScopeRepresentationpage 14

18 The Right to Asylum BY JUDITH L. WOOD AND FEDERICA DELL'ORTO

Although post-World War II U.S. immigration policy has tended to favorproviding protection to people from other countries who face persecution,the actual legal framework for asylum seekers has had a checkered career

Plus: Earn MCLE credit. MCLE Test No. 297 appears on page 21.

24 Generic BrandingBY DARIUSH ADLI

The pending U.S. Supreme Court case, United States Patent and TrademarkOffice v. Booking.com B.V., poses a challenge to the non-registrability ofgeneric terms under the Lanham Act

F EATU RE S

Los Angeles Lawyer

the magazine of

the Los Angeles County

Bar Association

March 2020

Volume 43, No. 1

03.20

7 President’s PageTogether, we can turn the tide of LACBA’s membershipBY RONALD F. BROT

9 Barristers TipsRecounting the benefits of legalspecializationBY YUJIN CHUN

10 Practice TipsGuidance on using the Bane Act to redress government misconductBY BARRY M. WOLF

14 Practice TipsLimited scope representation: a trap for the unwaryBY ELIZABETH L. BRADLEY

30 Ethics Opinion No. 527Lawyer agreeing to indemnify opposingparty as a condition of settlement

36 Closing ArgumentSentenced to the chair? The risk of sitting too muchBY LAUREL BRAUER

DE PARTM E NTS

LOS ANGELES LAWYER (ISSN 0162-2900) is publishedmonthly, except for a combined issue in July/August, by theLos Angeles County Bar Association, 1055 West 7th Street,Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period -icals postage paid at Los Angeles, CA and additional mailingoffices. Annual subscription price of $14 included in theAssociation membership dues. Nonmember subscriptions:$38 annually; single copy price: $5 plus handling. Addresschanges must be submitted six weeks in advance of nextissue date. POSTMASTER: Address Service Requested. Sendaddress changes to Los Angeles Lawyer, P. O. Box 55020,Los Angeles CA 90055.

COVER PHOTO:TOM KELLER

4 Los Angeles Lawyer March 2020

Visit us on the internet at www.lacba.org/lalawyerE-mail can be sent to [email protected] Los Angeles Lawyer on Twitter at@LALawyerMag

EDITORIAL BOARDChairTYNA ORREN

Articles CoordinatorCARMELA PAGAY

Articles CoordinatorTBD

SecretaryALEXUS BRIANNA PAYTON

Immediate Past ChairTHOMAS J. DALY

JERROLD ABELES (PAST CHAIR)

TOM K. ARA

MARA BERKE

TERENCE R. BOGA

SCOTT BOYER

NORMAN A. CHERNIN

CHAD C. COOMBS (PAST CHAIR)

KEITH A. CUSTIS

MICHAEL R. DILIBERTO

DANA MOON DORSETT

GORDON K. ENG

SHAHEEN ANTHONY ETEMADI

MICHAEL A. GEIBELSON (PAST CHAIR)

SHARON GLANCZ

STEVEN HECHT (PAST CHAIR)

COMM’R DENNIS F. HERNANDEZ

HON. MARY THORNTON HOUSE

NIKKI MEHRPOO JACOBSON

DIANA HUGHES LEIDEN

LYDIA G. LIBERIO

FLAVIA SANTOS LLOYD

PAUL S. MARKS (PAST CHAIR)

JANA MARIE MOSER

COMM’R ELIZABETH MUNISOGLU

LINDSEY F. MUNYER

CYNTHIA ANN PEARSON

GREGG A. RAPOPORT

J. D. REES, III

JAN F. SCHAU

LACEY STRACHAN

BRIANNA JOAN STRANGE

RONALD TOCCHINI

THOMAS H. VIDAL

STAFF

Editor-in-ChiefSUSAN PETTIT

Senior EditorJOHN LOWE

Art DirectorLES SECHLER

Director of Design and ProductionPATRICE HUGHES

Advertising DirectorLINDA BEKAS

Administrative CoordinatorMATTY JALLOW BABY

Copyright © 2020 by the Los Angeles County Bar Assoc ia -tion. All rights reserved. Reproduction in whole or in partwithout permission is pro hibited. Printed by R. R. Donnelley,Liberty, Missouri. The opinions and positions stated insigned material are those of the authors and not by the factof publication necessarily those of the Association or itsmembers. All manuscripts are carefully considered by theEditorial Board. Letters to the editor are subject to editing.

Los Angeles Lawyer March 2020 5

LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATIONOF THE LOS ANGELES COUNTY BAR ASSOCIATION

1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553Telephone 213.627.2727 / www.lacba.org

LACBA EXECUTIVE COMMITTEE

PresidentRONALD F. BROT

President-ElectTAMILA C. JENSEN

Senior Vice PresidentBRADLEY S. PAULEY

Vice PresidentJO-ANN W. GRACE

Vice President Of Diversity, Inclusion & OutreachPHILIP H. LAM

Immediate Past PresidentBRIAN S. KABATECK

TreasurerKRISTIN ADRIAN

Assistant Vice PresidentTBD

Assistant Vice PresidentTBD

Barristers/Young Attorneys PresidentDIANA ARIELLE SANDERS

Barristers/Young Attorneys President-Elect SHARON GELBART

Executive Director/Secretary STANLEY S. BISSEY

BOARD OF TRUSTEES

KRISTIN ADRIANSARVENAZ BAHARJULIA L. BIRKELDAMON MICHAEL BROWNBRANT H. DVEIRINGARY A. FARWELLJOHN F. HARTIGANAMOS E. HARTSTONROY J. JIMENEZRICHARD L. KELLNEREVE LOPEZJEFFREY B. MARGULIESJEANNE L. NISHIMOTOANN PARKBENJAMIN G. SHATZED SUMMERSKENDRA THOMASKEVIN L. VICK

AFFILIATED BAR ASSOCIATIONS

ASSOCIATION OF SOUTHERN CALIFORNIA DEFENSE COUNSEL (ASCDC)

BEVERLY HILLS BAR ASSOCIATION (BHBA)

CENTURY CITY BAR ASSOCIATION (CCBA)

CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES (CAALA)

CULVER MARINA BAR ASSOCIATION (CMBA)

EASTERN BAR ASSOCIATION OF LOS ANGELES COUNTY

GLENDALE BAR ASSOCIATION (GBA)

IRANIAN AMERICAN LAWYERS ASSOCIATION

ITALIAN AMERICAN LAWYERS ASSOCIATION (IALA)

JAPANESE AMERICAN BAR ASSOCIATION (JABA)

JOHN M. LANGSTON BAR ASSOCIATION

LGBT BAR ASSOCIATION OF LOS ANGELES (LGBT BAR LA)

MEXICAN AMERICAN BAR ASSOCIATION (MABA)

PASADENA BAR ASSOCIATION (PBA)

SAN FERNANDO VALLEY BAR ASSOCIATION (SFVBA)

SANTA MONICA BAR ASSOCIATION (SMBA)

SOUTH BAY BAR ASSOCIATION (SBBA)

SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION (SCCLA)

WOMEN LAWYERS ASSOCIATION OF LOS ANGELES (WLALA)


Tyna Thall Orren is the 2019-20 chair of the Los Angeles Lawyer Editorial Board. She is anappellate attorney and a partner in the firm of Orren & Orren in Pasadena, California.

on fighting back against most lawyers’ sedentary schedule leads off a plannedseries of Los Angeles Lawyer articles aimed at helping our legal communitystay mentally and physically healthy while doing the work that our articles onsubstantive law aim to support.

In March’s cover article, “The Right to Asylum,” Judith Wood and FedericaDell’Orto outline a history every American lawyer should learn: the twisting,ambivalent story of our nation’s immigration laws. The article then analyzescurrent issues concerning some of the most baffling and troubling categoriesof asylum applications, those of refugees from domestic and/or gang violence,rather than government action.

If you practice in the area of civil rights, be sure to read Barry Wolf’sanalysis of California’s Bane Act (Civil Code Section 52.1), showing whenand how that act can provide a more achievable remedy for violations of civilrights than the more commonly utilized civil rights action under Title 42 (PublicHealth and Welfare), section 1983 of the U.S. Code.

If you practice intellectual property, and trademark rights in particular,read Dariush Adli’s explanation of U.S. Patent and Trademark Office v.Booking.com, in which the U.S. Supreme Court recently granted certiorari.The issue before the high court will be whether a generic term like “booking”is entitled to federal trademark protection if followed by “.com.” The U.S.Patent and Trademark Office says no. The Fourth Circuit has disagreed, finding such term to be protectable. SCOTUS hears arguments on the questionon March 23.

Three offerings in this issue are less concerned with particular issues orpractice areas than with broad questions about how our profession can bestbe practiced. Yujun Chun outlines the benefits of becoming a legal specialist.Elizabeth Bradley analyzes the benefits and risks in the increasingly commonpractice of limited scope representation.

Finally, we proudly bring you the most recent Ethics Opinion of the LosAngeles County Bar Association’s Professional Responsibility and EthicsCommittee (PREC). The opinion holds that a lawyer may neither agree toindemnify an opponent against a third-party action as a condition of settlinglitigation nor demand that the other side agree to such indemnification andexplains why. It is number 532 in PREC’s century-long series of Ethics Opinions.Over 250 of PREC’s opinions, reaching back to 1959, are readily available onLACBA’s website.

In his “President’s Page” column, LACBA President Ron Brot talks aboutthe importance of LACBA membership to each member and to the legal com-munity. PREC’s invaluable guidance around and past our profession’s ethicaltrapdoors is another reason why our community needs, as Benjamin Franklinexhorted, to hang together lest we hang separately, and why LACBA is theplace to do it. n

Stop, please. Before reading another line, stand up. Now,read this entire column standing. Next, flip to page 36and read the “Closing Argument” column, still standing.

Author Laurel Brauer will explain why. Standing while youread is good for you, physically and mentally. Brauer’s article

AS I HAVE OFTEN SAID, it is a great time tobe a member of the Los Angeles CountyBar Association and a great time to be theLACBA president. Significant strides havebeen made to reach our primary goals. Wehave become transparent at all levels, ourpractice sections continue to operate inde-pendently, and we have made substantialprogress toward financial stability.

The rising energy and enthusiasm forLACBA continues. Our new Cannabis Section and the Privacyand Cybersecurity Section continue to attract members with theirinventive programs and activities. Our Small Firm and SolePractitioner Section also continues its dramatic resurgence. Wewill soon roll out our most ambitious member benefit in years:an attorney-to-attorney referral program with approximately 20hubs meeting throughout Los Angeles County.

So, what’s the problem? Despite remarkable progress, LACBAmembership has continued to decline. This issue is not particularto LACBA. To the contrary, membership retention is the primaryissue for national, state, and local bar associations across thenation. However, we should take no comfort that others shareour problem. Shared difficulty may be a statistic but it is not anexplanation and surely not an excuse.

LACBA is uniquely situated as a geographic bar in a countylarger than many states, with a population larger than manystates, a lawyer population far larger than that of many states, amajor metropolitan city at our center, and every practice arearepresented in our communities. We are well positioned to recon-sider what worked in the past but no longer serves us and toreformulate a more contemporary vision of LACBA.

Looking back, for many years, LACBA served the needs ofthe Los Angeles legal community as the sole provider of localcontinuing legal education. In those days, for example, theFamily Law Section hosted over 1,000 lawyers for the annualFamily Law Symposium. Likewise, LACBA formerly providedmembers with access to attorney malpractice insurance at sig-nificantly discounted rates. Situated in downtown Los Angeles,LACBA traditionally was supported by the “large” law firmsof the day, although large at that time was small by the standardsof today.

Today, CLE is readily available from multiple sources, andCLE programming has become a highly competitive market.Moreover, law firms large and small present their own educa-tional programs. In this context, a bar-sponsored CLE programin downtown Los Angeles finds itself in a difficult competitiveposition. Discounted malpractice coverage? While LACBA con-tinues to offer access to attorney malpractice insurance, againtimes have changed. Access to LACBA-sponsored coverage isno longer a benefit sought by a majority of our members. Large

law firm participation? Large law firms today barely resemblethe firms that historically supported LACBA with firmwidemembership. Large billable hour requirements, national firmswithout historical ties to the local organized bar, cost, associateindifference, and other miscellaneous factors are often citedamong the reasons that Big Law declines to pay for all lawyers,or even all associates, to join LACBA. (However, many of thosefirms will pay for an associate to join if requested.) During thepast few years, our efforts to bring large law firms back toLACBA with firmwide membership have not been successful.

Is the result for LACBA destined to be dismal or worse? Ithink not. With the cooperation of our members, sections, andstaff, I foresee a bright future for LACBA. The benefits ofLACBA membership continue to include personal relation ships,professional relationships, and business relationships; contin u -ing legal education; a significant opportunity for business referrals;service to the courts and the public; pro bono service throughour legal services projects and otherwise; and other economicmember benefits. Most lawyers in Los Angeles County wouldappreciate one or more of these benefits from membership.

How will we increase membership? First, we must look toour existing members who receive an annual renewal notice. Ifwe are doing our job correctly, our renewal rate should remainhigh, except perhaps for lawyers who retire from practice orrelocate outside California. Second, we need to do far betterwith membership from our newer lawyers after their first twoyears of free membership. Our retention in this area has beenpoor. The incremental cost of year three is very low, so costcannot truly be the issue. It is apparent that we need to bettercommunicate the significant benefits of LACBA membership tothe new lawyers in this group. We must look to our Bar -risters/Young Attorneys Section to take the lead in this effort,supported by the bar’s senior leadership. Given the benefits ofLACBA membership throughout a legal career, there is no reasonfor this group of lawyers to decline to pay the small cost ofinitial paid membership.

Countywide Membership

Next, we must recognize that our future members will comefrom all areas within our county, from Lancaster to Long Beach,and Pomona to the Pacific. Our members will come fromGlendale, Santa Monica, Pasadena, the San Fernando Valley,the South Bay, Beverly Hills and Century City, to name but afew. Our challenge is to provide programming and other LACBAbenefits throughout these areas. Our sections and committees

president’s page BY RONALD F. BROT

Together, We Can Turn the Tide of LACBA’s Membership

The 2019-20 president of the Los Angeles County Bar Association, Ronald F.Brot is a founding partner and chairman of Brot Gross Fishbein and a notedfamily law attorney. He is a past chair of LACBA’s Trial Lawyers Section (nowthe Litigation Section) and Family Law Section, among others.


are vital to this task. We have urged themto plan programs and activities in all theselocales, not just downtown Los Angeles.Our rapidly expanding technology mustbe employed as well, so that membersthroughout Los Angeles County can usetheir computers as well as their vehiclesto obtain LACBA benefits. New membersalso will come from our affiliate and af -finity bar associations, with whom we arepartnering to better represent the rich div -ersity among lawyers in this county. Weare creating a unified calendar and a ros -ter of bar leaders as the first step in thisprocess. We have established an agendafor our joint efforts, which includes, amongother things, addressing the legal needs of our homeless population within LosAngeles County.

Government Lawyers

We have already reached out to othergroups of lawyers who have not partici-pated in LACBA in large numbers in recentyears. Lawyers in government service arean example. We have met with our CityAttorney, District Attorney, and PublicDefender to urge their attorneys to joinwith us. We have been to the Board ofSupervisors to explore how LACBA mem-bership can be facilitated. New ideas andnew approaches are welcome.

Who has the responsibility to carrythe membership message? Is it the sec-tions? The officers and trustees? Our ex -ecutive director and his staff? The answeris yes, the burden is nominally on all ofthem. However, for us to be successfulin turning the membership tide, we mustaccept that the responsibility for mem-bership actually rests on each of us. Wehave heard countless narratives of howLACBA has helped lawyer after lawyerbuild a career and a happy, successfullife. Each of us should redouble our effortsto invite non-members to share the ben-efits of LACBA membership. Our “Bringa Guest” program allows us to bring anon-member to a regular Section CLEprogram of three hours or less withoutcharge. We have a full calendar of otherprograms and events that will surely inter-est potential mem bers. It will not takemuch effort, and we will be providing abenefit both to the potential new memberand to LACBA. The new member andLACBA will thank you, and both will bethe better for your effort.

I ask for your help in addressing thismembership challenge. The LACBA offi-cers, trustees, and section leaders have adeep commitment to meeting this chal-lenge. All we are missing is your help.Join us. n



THERE COMES A TIME in every young lawyer’s career when some-one—although mostly not in the legal industry—asks what kindof law the lawyer studied in law school. With this questioncomes the assumption that, as with undergraduate studies andwith practically all doctorate degrees, a person selects and studiesa specialty within the chosen profession in which he or shewould then go on to work.

Lawyers, of course, know this is not quite the case for themsince lawyers take the same foundational courses in the firstyear of law school and generally tend to take whatever intereststhem and is available in the second andthird years. Consequently, lawyers oftenfind themselves practicing in areas in whichthey did not take a single course in lawschool.

Thus, lawyers often grapple with the“kind” of law to practice. There are seem-ingly many options but, at the same time,limited opportunities. Early on, beginninglawyers are advised to acquire experiencein as many different areas as possible tofind out what he or she likes. This is, ofcourse, easier said than done. Most newly minted lawyers arelucky to at least stay on their preferred side of the litigation-versus-transactional divide and otherwise end up working inthe field in which they are most employable.

Benefits of Specializing

New lawyers and those who originally began their careers asgeneralists may be presented with opportunities to start practicingin a specialized field. Similarly, there may be an opportunity toswitch specialties. There can be many benefits to choosing aspecialty, and there are several things every young lawyer shouldconsider in making that decision.

A key advantage of specializing in an area of law is the abilityto become an expert in that area. Especially in limited, nichefields, it is easier to become the go-to expert for that area ofpractice. That expertise builds confidence, which the lawyer isthen able to instill in his or her clients. As with the specificskills involved in the practice of law, this knowledge compoundsover time and makes it easier for the specialist lawyer to quicklyspot issues, respond to problems, and devise creative solutionswithin the known boundaries of law.

For example, while a skilled general litigator could proficientlyhandle a contract dispute involving hospitals and health systems,he or she may need to spend time becoming familiar with thehealthcare marketplace and may miss issues that, to an industryinsider, would be immediately apparent. An attorney who onlypractices healthcare law would be more likely to spot issuesquickly and thus would be the first person that the prospective

client or referring attorney would have in mind.In the same vein, specializing streamlines the networking

process. Attorneys often benefit from the assumption of expertise:an attorney is immediately presumed to be familiar with thegeneral practice of law and this extends to specific areas of lawas well. A lawyer who has a specialty is easily remembered bothas a person and as a lawyer for referral when one comes acrossa case in that particular field or even a related one. Furthermore,the lawyer or law firm can target prospective clients and profes-sionals who work in the chosen industry and thus can focus on

creating and maintaining relationships.In choosing a special area of practice, it is important for a

lawyer to consider not only personal interest in that field butalso the general expected trajectory. Is it in an area that cangrow or is it on its way out? Are technological advances orlegislative reforms in the field expected to create legal issuesrequiring specialized attorney work? While it is impossible toaccurately predict everything, some educated guesses can andshould be made before deciding on an area of specialization.

Industry-Specific Knowledge

In addition, a lawyer must be willing and able to learn. Evenwith a few years of general practice under the belt, delving intoa new area of law comes with challenges. Most skills, especiallyif a lawyer stays on the same side of the litigation-versus-trans-actional divide, are transferable, but industry-specific knowledgetakes time to learn. Are there resources available for newcomers?Is the lawyer willing to spend nonbillable time studying up andin keeping up with industry news?

In many cases, choosing to specialize is akin to learning a newlanguage, which takes dedication, practice, and passion. As withlearning a new language, the experience also can be incrediblyrewarding and fulfilling, making everything worth it. n

barristers tips BY YUJIN CHUN

Recounting the Benefits of Legal Specialization

A lawyer who has a specialty is easily remembered both as a

person and as a lawyer for referral when one comes across a case

in that particular field or even a related one.

Yujin Chun is a healthcare litigation associate in the Los Angeles office ofKing & Spalding LLP. She serves as the assistant vice president of publicrelations for the Los Angeles County Bar Association Barristers/Young LawyersSection.


PLAINTIFFS HAVE FOR DECADES used Section 1983 of Title 42 ofthe U.S. Code to redress police and other government miscon - duct. Part of the federal Civil Rights Act of 1871, this statuteprovides for damages and injunctive relief against anyone actingunder the color of law who violates a person’s federal constitu-tional or statutory rights.1 Attorney fees are also recoverable inSection 1983 actions.2 The possibility of receiving such fees pro-vides additional incentive for counsel to represent plaintiffs, aswell as increased leverage for plaintiffs in settlement negotiations.However, Section 1983 case law poses two serious obstacles forplaintiffs suing individual or public entity defendants. Theseproblems have been exacerbated by the increasingly conservativeoutlook of the U.S. Supreme Court.

The first obstacle concerns individual defendants in Section1983 cases who are not absolutely immune and therefore willbe granted “‘qualified immunity’” even if they acted illegally, solong as the defendant’s “‘conduct does not violate clearly estab-lished statutory or constitutional rights of which a reasonableperson would have known.’”3 The Supreme Court has in recentyears emphasized that “‘clearly established law’ should not bedefined ‘at a high level of generality.’ [Citation]…. The clearlyestablished law must be ‘particularized’ to the facts of the case.”4

The Court has applied this standard to consistently hold defen-dants qualifiedly immune in Section 1983 actions by distinguishingthe facts of the case being considered from those of previousdecisions.5 As one academic put it, “[t]he United States SupremeCourt appears to be on a mission to curb civil rights lawsuitsagainst law enforcement officers, and appears to believe qualifiedimmunity is the means of achieving its goal.”6

Second, Section 1983 does not provide for vicarious liability.In Monell v. Department of Social Services of the City of NewYork, the Court held that only when “execution of a government’spolicy or custom…inflicts the injury” can a public entity beheld liable.7 The law that has developed pursuant to Monellcan be confusing. Supreme Court Justice Stephen G. Breyer haswritten that “Monell’s basic effort to distinguish between vicariousliability and liability derived from ‘policy or custom’ has produceda body of law that is neither readily understandable nor easy toapply.”8

Possible Workaround

Perhaps in part as a result of dissatisfaction with Section 1983,California attorneys increasingly have attempted to use CivilCode Section 52.1 to redress government misconduct.9 Thisstatute is part of the Tom Bane Civil Rights Act,10 “enacted bythe Legislature in 1987 in response to the alarming escalation inthe incidence of hate crimes in California and the inadequacy ofexisting laws to deter and punish them.”11 Section 52.1 providesfor damages and injunctive relief when one or more persons,whether or not acting under the color of law, interferes or attempts

to interfere by threat, intimidation, or coercion with the exerciseof California or federal constitutional or statutory rights.12

There are advantages to using Section 52.1 as an alternativeto Section 1983. For example, despite the Bane Act’s origin as ananti-hate crime measure, plaintiffs suing under Section 52.1 neednot show discriminatory intent.13 Qualified immunity is inapplicableto Section 52.1 actions, and public entity defendants can be heldvicariously liable.14 As in Section 1983 actions, plaintiffs suingunder Section 52.1 can potentially recover attorney fees.15

Moreover, a plaintiff whose Section 52.1 claim is based on theviolation of California’s constitution or statutes can avoid removalto federal court premised on federal question jurisdiction.

However, Section 52.1 has its own set of requirements. Thegovernment claims presentation requirement and state law im -munities, though inapplicable to Section 1983 actions,16 areoperative when Section 52.1 is invoked.17 The claims presentationrequirement, which allows maintenance of an action againstpublic entities only if an administrative claim has previouslybeen timely filed, can be “‘a trap for the unwary and ignorantclaimant.’”18 If a client has fallen into that trap, no Section52.1 claim can be brought.

practice tips BY BARRY M. WOLF

Guidance on Using the Bane Act to Redress Government Misconduct

Barry M. Wolf is an appellate attorney in West Los Angeles.RICH

ARD

EW

ING


California’s state law immunities applyto numerous types of conduct by govern-ment employees, although in some cases,these immunities may be easier to defeatthan qualified immunity. For example, acourt held a defendant liable for excessiveforce in a Section 52.1 action despite thefact that he was qualifiedly immune onthe plaintiff’s corresponding Section 1983claim.19 The court reasoned that the rele-vant California immunity statute—PenalCode Section 820.4—requires a govern-ment employee to use “‘due care,’” andthis standard was not satisfied if the offi-cer’s actions violated the Fourth Amend -ment, even though the officer receivedqualified immunity because he reasonablybelieved the actions were lawful.20

Difficulty with Section 52.1

The most significant obstacle to successfulSection 52.1 actions is that, unlike theirSection 1983 counterparts, interferencewith rights must be accomplished byattempted or actual threat, intimidation,or coercion. California state courts havedisagreed regarding what plaintiff mustshow to satisfy this requirement, and deci-sions within the last three years have cre-ated a split between two principal linesof cases that only the California SupremeCourt can resolve.

The first line of cases requires that plain-tiffs show threat, intimidation, or coercionother than that inherent in the alleged vio-lation of constitutional or statutory rights.The seminal case in this line is Shoyoye v.County of Los Angeles, in which the courtconcluded that “where coercion is inherentin the constitutional violation alleged, i.e.,an overdetention in County jail, the statu-tory requirement of ‘threats, intimidation,or coercion’ is not met.”21

The overdetention in Shoyoye wasdeemed negligent, and the court foundthat the county’s employees took no inten-tional actions amounting to threat, intim-idation, or coercion.22 Some courts havenonetheless cited Shoyoye in holding thateven intentional acts will not give rise toSection 52.1 liability when the allegedthreats, intimidation, or coercion are in -herent in the constitutional violation al -leged.23 However, other courts have foundthat Section 52.1 liability is possible underthe Shoyoye standard in cases in whichthe threat, intimidation, or coercion is suf-ficiently egregious that it is not deemedinherent in the constitutional or statutoryviolation alleged.

Thus, a court held that even if the Shoy -oye standard applied, a defendant wasproperly found liable under Section 52.1when he unlawfully arrested the plaintiff

and used excessive force.24 The court con-cluded that “the Bane Act applies becausethere was a Fourth Amendment viola-tion—an arrest without probable cause—accompanied by the beating and pepperspraying of an unresisting plaintiff, i.e.,coercion that is in no way inherent in anarrest, either lawful or unlawful.”25 Thegratuitousness of defendant’s violenceundoubtably influenced the court, whichcharacterized the use of force as “purespite.”26Another court held that even alawful arrest would not preclude BaneAct liability for excessive force, stating“[w]e need not determine whether a plain-tiff can establish Bane Act liability withoutshowing the challenged conduct is separateand independent from inherently coerciveunderlying conduct (like an arrest),” asthe defendants allegedly engaged in “mul-tiple nonconsensual, roadside, physicalbody cavity searches” constituting “inten-tional conduct that is separate and inde-pendent from a lawful arrest….”27

The second line of cases rejects Shoy -oye’s conclusion that Section 52.1 is vio-lated only when threats, intimidation, orcoercion are not inherent in the constitu-tional violation alleged. The key case inthis line is Cornell v. City & County ofSan Francisco, in which defendants chasedand arrested plaintiff without having rea-sonable suspicion to detain him.28 In dis-cussing the requirements of Section 52.1,the court stated:

Nothing in the text of the statuterequires that the offending “threat,intimidation or coercion” be “in -dependent” from the constitution -al violation alleged. Indeed, if thewords of the statute are given theirplain meaning, the required “threat,intimidation or coercion” can neverbe “independent” from the under-lying violation or attempted viola-tion of rights, because this elementof fear-inducing conduct is simplythe means of accomplishing theoffending deed (the “interfere[nce]”or “attempted…interfere[nce]”).29

Cornell instead requires a plaintiff toshow that a defendant “had a specificintent to violate” the right in question.30

Cor nell derived the “specific intent”re -quirement from case law interpreting 18USC Section 241, “the most similar federalcivil rights statute to Section 52.1….”31

To show specific intent, a plaintiff mustdemonstrate two things.

First, the plaintiff must show that the“right at issue [is] clearly delineated andplainly applicable under the circumstancesof the case,” a legal question that thecourt decides.32 Although “clearly delin-

eated” may sound similar to the “clearlyestablished” standard applied in Section1983 cases, the Cornell court evaluatedthe claimed right at a much higher levelof generality than would be consideredpermissible in Section 1983 cases, statingthat the “‘right at issue’” was the “rightto be free from arrest without probablecause.”33 The court concluded that “thereis nothing vague or novel about that claimunder the circumstances of this case.”34

When claims are vague or novel, however,courts might well use a more particularizedstandard.35

Second, the plaintiff must show thatthe defendant acted “‘with the particularpurpose of depriving the citizen victim ofhis enjoyment of the interests protectedby that…right.’”36 The Cornell court foundthat the jury could have properly con-cluded that the defendants “acted withthe ‘particular purpose’ of depriving [plain-tiff] of his right to be free from arrest with-out probable cause,” as a “rational jurycould have concluded not only that [defen-dants] were unconcerned from the outsetwith whether there was legal cause todetain or arrest [plaintiff], but that whenthey realized their error, they doubled-downon it, knowing they were inflicting grievousinjury on their prisoner.”37

Another California state court decisionfollowed Cornell in holding that a plain-tiff’s Section 52.1 claim based on excessiveforce should have gone to the jury.38 Asin Cor nell, the court required the plaintiffto “prove the defendant acted with a spe-cific intent to violate the plaintiff’s civilrights.”39 The court found that becausethe plaintiffs’ evidence “suggested De -fendants deliberately subjected [plaintiff]to excessive force beyond that which wasnecessary to make [an] arrest,” summaryadjudication had been improperly grantedto defendants.40

Although the Shoyoye and Cornelllines of cases use different tests to decidewhether Section 52.1 has been violated,the outcomes under both tests are likelyto be similar in most cases. Both tests preclude negligence as a basis for Section52.1 liability.41 Moreover, even intentionalactions will not necessarily result in lia-bility. The decisions cited above make itclear that the defendants’ conduct mustbe at the very least unnecessary to carryout an otherwise justified activity such asan arrest. As a practical matter, the moreegregious a defendant’s actions appear tobe, the likelier it is that a Section 52.1violation can be established under eitherShoyoye or Cornell. However, until theCalifornia Supreme Court clarifies howthe “threat, intimidation, or coercion” re -

quirement can be met, plaintiff’s counselin California state courts would be wiseto attempt to satisfy both the Shoyoye andCornell tests.

In contrast, counsel litigating in federalcourt probably need only satisfy the Cor -nell test except in cases in which a plaintiffalleges negligent conduct. A lthough theU.S. Court of Appeals for the Ninth Circuittwice followed Shoyoye prior to Cornell’sbeing decided, later panels have adheredto Cornell.42 The first Ninth Circuit deci-sion to follow the latter case stated that“we are now guided by Cornell to interpretShoyoye’s holding as limited to casesinvolving mere negligence….”43 NinthCircuit panels are theoretically bound byprior panel decisions subject to limitedexceptions, including new state court deci-sions interpreting a state law.44 Never -theless, it is not beyond possibility thatanother Ninth Circuit panel might disre-gard as dicta the limitation of Shoyoye tonegligence cases and adhere to Shoyoyeeven in a case involving intentional con-duct, as both Ninth Circuit cases that fol-lowed Shoyoye involved such conduct.45

Ultimately, only the California SupremeCourt or the Ninth Circuit sitting en banccan settle this issue in that circuit.

At present, it seems likely that most

acts that would give rise to a successfulSection 52.1 claim also would suffice forSection 1983 liability if government actorsare involved. As noted, however, there isat least one case in which a court held adefendant liable under Section 52.1although the defendant had been deemedqualifiedly immune under Section 1983.46

It is also possible that the reverse couldbe true, with a defendant’s being held liableunder Section 1983 but not under Section52.1. For example, a police officer couldbe subjected to Section 1983 liability forgarden variety excessive force, the illegalityof which was clearly established by caselaw, while escaping Section 52.1 liabilitybecause the force was not deemed inde-pendent of the illegal action (Shoyoye) orsufficiently excessive to have been com-mitted with the specific intent to deprivea plaintiff of his civil rights (Cornell).

Therefore, even if Section 52.1 liabilityis possible, plaintiffs’ attorneys shouldseriously consider also asserting a Section1983 claim against governmental defen-dants. If counsel deems it strongly desirableto avoid federal court and the parties’ cit-izenship is not diverse, then alleging onlya Section 52.1 claim based on the violationof California constitutional or statutoryprovisions would prevent the defendant

from invoking federal question jurisdictionto remove the case to federal court. How -ever, uncertainty in California courts re -garding the meaning of Section 52.1’sthreat, intimidation, or coercion require-ment renders this course of action risky.Counsel should therefore weigh the ben-efits of litigating in state court againstthe possibility that the plaintiff might pre-vail under Section 1983 but not underSection 52.1. In this scenario, even if theplaintiff prevails under other state lawprovisions, the chance to recover attorneyfees will be lost unless one or more ofthe plaintiff’s other causes of action pro-vide for attorney fees. n

1 42 U.S.C. §1983.2 42 U.S.C. §1988(b).3 Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (percuriam).4 White v. Pauly, 137 S. Ct. 548, 552 (2017) (percuriam).5 See, e.g., Kisela, 138 S. Ct. at 1153-54; White, 137S. Ct. at 551-52; San Francisco v. Sheehan, 135 S.Ct. 1765, 1775-78 (2015).6 Joanna C. Schwartz, How Qualified Immunity Fails,127 YALE L.J. 2, 6 (2017).7 Monell v. Dep’t of Social Servs. of City of NewYork, 436 U.S. 658, 694 (1978).8 Board of Comm’rs. v. Brown, 520 U.S. 397, 433(1997) (Breyer, J., dissenting).9 A Westlaw search of California and federal cases


using the terms civ! /2 code /2 52.1 garnered 82 hitsfor 2008, and 217 hits for 2018.10 CIV. CODE §52.1(a).11 In re M.S., 10 Cal. 4th 698, 706-707 n.1 (1995).12 CIV. CODE §52.1(b), (c).13 Venegas v. County of Los Angeles, 32 Cal. 4th820, 843 (2004).14 Venegas v. County of Los Angeles, 153 Cal. App.4th 1230, 1246 (2007) (qualified immunity unavail-able); Gant v. County of Los Angeles, 772 F. 3d 608,623 (9th Cir. 2014) (vicarious liability possible);Knapps v. City of Oakland, 647 F. Supp. 2d 1129,1168-69 (N.D. Cal. 2009) (same); Burns v. City ofRedwood City, 737 F. Supp. 2d 1047, 1065 (N.D.Cal. (2010) (same).15 CIV. CODE §52.1(i).16 California v. Superior Ct., 32 Cal. 4th 1234, 1240(2004) (“the claim presentation requirement ‘is inop-erative in an action brought under’ 42 United StatesCode section 1983”); Martinez v. California, 444U.S. 277, 284 n.8 (1980) (“‘Conduct by persons actingunder color of state law which is wrongful under 42U.S.C. §2983 or §1985 (3) cannot be immunized bystate law.’”)17 Gatto v. County of Sonoma, 98 Cal. App. 4th 744,764-65 (2002) (government claims presentationrequirement applies in Section 52.1 actions); Toweryv. California, 14 Cal. App. 5th 226, 233-36 (2017)(Section 52.1 does not abrogate California statutoryimmunities).18 Leake v. Wu, 64 Cal. App. 3d 668, 673 (1976).19 Thomas v. Dillard, 212 F. Supp. 3d 938, 941, 948-49 (S.D. Cal. 2016).20 Id. at 949.21 Shoyoye v. County of Los Angeles, 203 Cal. App.4th 947, 959 (2012).22 Id. at 961-62.23 Allen v. City of Sacramento, 234 Cal. App. 4th 41, 69 (2015) (no Section 52.1 liability for allegedlyunlawful arrest without coercion beyond the coercioninherent in any arrest); Quezada v. City of Los Angeles,222 Cal. App. 4th 993, 1008 (2014) (Section 52.1was not violated either by requiring peace officers totake a breathalyzer test, as this was a condition ofemployment, or by stating that a car could beimpounded if consent to a search was not given, asthat action is lawful pursuant to a search warrant);Julian v. Mission Cmty. Hosp., 11 Cal. App. 5th 360,395 (2017) (conclusionary allegations that police“‘engaged in tactics to scare’” plaintiff failed to statea Section 52.1 cause of action when the only inter-ference with plaintiff’s constitutional rights was thatinherent in a justified detention).24 Bender v. County of Los Angeles, 217 Cal. App.4th 968, 978 (2013).25 Id. at 978.26 Id. at 979.27 Simmons v. Superior Ct., 7 Cal. App. 5th 1113,1127 (2016) (emphasis in original).28 Cornell v. City and County of San Francisco, 17Cal. App. 5th 766, 781 (2017) .29 Id. at 800.30 Id. at 801.31 Id. at 792.32 Id. at 803. (Internal quotation marks omitted.)33 Id.34 Id.35 See, e.g., Sandoval v. County of Sonoma, 912 F.3d 509, 520 (9th Cir. 2018) (Because it was legallyunclear whether 30-day impounds were seizures whenthe impounds occurred, plaintiffs’ right was not clearlydelineated, so defendants “could not have had therequisite specific intent to violate the plaintiffs’ FourthAmendment rights.”)36 Cornell v. City & County of San Francisco, 17Cal. App. 5th 766, 803 (2017). (Internal quotation

marks omitted).37 Id. at 804.38 B.B., et al. v. County of Los Angeles, 25 Cal. App.5th 115, 128 (2018), as modified (July 12, 2018),reh’g denied (Aug. 9, 2018), as modified (Aug. 9,2018). The California Supreme Court granted reviewin this case, but the case has precedential value be -cause the court denied a depublication request. (B.B.v. County of Los Angeles, 428 P. 3d 178 (Mem)(October 10, 2018); see CAL. R. CT. 8.1105(e)(1)(B),8.1115(e)(2).) The issue the Court will be decidingdoes not pertain to Section 52.1. See B.B., et al. v.County of Los Angeles, supra, Answer Brief On theMerits, 2019 WL 574908 *10 (2019).39 B.B., 25 Cal. App. 5th at 133.40 Id. at 134 (emphasis in original).41 Shoyoye v. County of Los Angeles, 203 Cal. App.4th 947, 958 (2012); Cornell, 17 Cal. App. 5th at802.

42 Compare Lyall v. City of Los Angeles, 807 F. 3d1178, 1196 (9th Cir. 2015) (following Shoyoye) andGant v. County of Los Angeles, 772 F. 3d 608, 623-24 (9th Cir. 2014) (same) with Reese v. County ofSacramento, 888 F. 3d 1030, 1043-1045 (9th Cir.2018) (following Cornell); Rodriguez v. County ofLos Angeles, 891 F. 3d 776, 800-802 (9th Cir. 2018)(same); Sandoval v. County of Sonoma, supra, 912F. 3d at 519-520 (same); and S.R. Nehad v. Browder,929 F. 3d 1125, 1142 n.15 (9th Cir. 2019) (same).43 Reese, 888 F. 3d at 1044 n.5.44 Id. at 1043, 1044 n.5; see generally In re Watts,298 F. 3d 1077, 1082-83 (9th Cir. 2002).45 Lyall, 807 F. 3d at 1181-83 (warrantless entry,search and detention) and Gant, 772 F. 3d at 624(coercion in obtaining an incriminating statementfrom plaintiff).46 Thomas v. Dillard, 212 F. Supp. 3d 938, 941, 948-49 (S.D. Cal. 2016).



CALIFORNIA RULE OF PROFESSIONAL CONDUCT 1.2, Scope ofRepresentation and Allocation of Authority went into effect onNovember 1, 2018.1 One of the primary objectives of Rule 1.2is to clarify the relationship between lawyer and client. Rule 1.2,paragraph (b), authorizes a lawyer to “limit the scope of repre-sentation if the limitation is reasonable* under the circumstances,is not otherwise prohibited by law, and the client gives informedconsent.*”

“Reasonable” or “reasonably” when used in relation to con-duct by a lawyer means the conduct of a reasonably prudentand competent lawyer and is therefore governed by an objectivestandard, as opposed to the hybrid objective and subjective stan-dard applied where the reasonableness of a lawyer’s personalbelief is in question.2 “Informed consent,” as distinguished frominformed written consent, means a person’s agreement to a pro-posed course of conduct after the lawyer has communicated andexplained 1) the relevant circumstances and 2) the material risks,including any actual and reasonably foreseeable adverse conse-quences of the proposed course of conduct.3

Comment [4], which is not part of Rule 1.2, but which givesguidance regarding its application, provides that “[a]ll agreementsconcerning a lawyer’s representation of a client must accord withthe Rules of Professional Conduct and other law.”4

Although Rule 1.2, paragraph (b), has no direct counterpointin the former California Rules of Professional Conduct, Comment[2] to former Rule 3-400 recognized a lawyer’s ability to reasonablylimit the scope of the lawyer’s representation consistent withexisting case law, which has long authorized that practice.5 Rule1.2, paragraph (b), is substantially similar to existing AmericanBar Association Model Rule of Professional Conduct 1.2, para-graph (c).6 Moreover, the Commission for the Revision of theRules of Professional Conduct expressly recognized that the con-cept of allocation of a lawyer’s authority is derived from theCalifornia Constitution, the California Penal Code, and CaliforniaSupreme Court precedent.7

Lawyers often seek to limit the scope of a representation fora variety of reasons. These might include a lack of knowledge orexperience in a practice area, the need for expertise, or thelawyer’s or client’s limited resources. Examples of related mattersthat an attorney might seek to exclude from a representationinclude enforcement of judgment, transactional matters relatedto a litigation or vice versa, matters in which a specialist may beneeded, such as tax, bankruptcy, family law, antitrust, estateplanning, and regulated business (liquor licenses, gaming licenses)matters, appeals, legal malpractice claims, insurance matters—e.g., the potential existence or applicability of insurance coverageor the potential bad faith denial of insurance coverage, potentialaffirmative cross-claims or third-party claims in which counselis retained by an insurer to defend an insured under a policy ofinsurance, or advice as to potential claims against the employer

when the employer hires counsel to represent an individual man-ager under Labor Code Section 2802. Perhaps the lawyer andclient wish to limit the lawyer’s role in the litigation setting todrafting or assisting in drafting legal documents but not to makean appearance in the case.8 Whatever the reason, the lawyershould be diligent in ensuring that he and the client are on thesame page and have reached agreement as to the scope of thelawyer’s representation.

Civil Cases

Rules 3.35 through 3.37 and 5.425 of the California Rules ofCourt address instances in which the lawyer and client expresslyagree to limit the scope of the representation in civil cases toparticular tasks. Rule 3.35 defines a limited scope representationas “a relationship between an attorney and a person seekinglegal services in which they have agreed that the scope of thelegal services will be limited to specific tasks that the attorneywill perform for the person.”9 The Rules of Court recognize twotypes of limited scope representation: 1) Noticed representation,when a lawyer and a party notify the court and other parties ofthe limited scope representation, and 2) undisclosed representation.Noticed representation is governed by Rule 3.36 under theCalifornia Rules of Court, which sets forth the procedures forproviding notification of a limited scope representation, whileRule 3.37 applies to undisclosed limited representations.

Limiting the scope of a lawyer’s representation of a client canbe easily accomplished in civil matters when the lawyer’s andclient’s objectives are clear and the scope of the representation iseasily defined to encompass discrete tasks, such as an appearanceat a particular court hearing. California Judicial Council FormCIV-150 is a simple method to notify the court and opposingcounsel of the lawyer and client’s agreed-upon limited scope rep-resentation.10 When the scope of the representation or any lim-itation thereto is unaddressed, unclear, or when the lawyer’s andclient’s understanding as to the intended scope of the representationdiverge, serious problems can arise, potentially exposing theclient to harm and the lawyer to liability.

Written Fee Agreement

Though Rule 1.2 of the Rules of Professional Conduct does notexpressly require an agreement limiting the scope of the repre-sentation or the client’s informed consent to be in writing, manyfee agreements are required to be in writing (such as those fallingunder Business and Professions Code Sections 6147 and 6148).

practice tips BY ELIZABETH L. BRADLEY

Limited Scope Representation: A Trap for the Unwary

Elizabeth L. Bradley is a partner in Rosen Saba, LLP, and is vice chair of theLACBA Professional Responsibility and Ethics Committee and a foundingmember of the California Lawyers Association Ethics Committee. Her litigationpractice focuses on attorney ethics and legal malpractice, employment,general business litigation, and appeals.

Fee agreements required by Business andProfessions Code Section 6148 to be inwriting must contain the general natureof the legal services to be provided to theclient, as well as the respective responsi-bilities of the attorney and the client asto the performance of the contract.11 Awritten fee agreement is the most obviousplace to express any intended limitationon the scope of the representation and tomake the disclosures necessary to obtainin formed consent.

However, it would also be advisablewhen a written fee agreement is not re -quired, when any agreed upon limitationis not addressed in a written fee agreement,or when the need to limit the scope of therepresentation arises after the representa-tion is underway to reduce any agreementlimiting the scope of the representationto a writing signed by the client, whichsimultaneously documents that the client’sconsent was informed. If this is not feasi-ble, it would be prudent to document orconfirm in writing any discussion or oralagreement limiting the scope of the rep-resentation, as well as the facts establishingthat the client consented and that the con-sent was informed, in order to avoid anysubsequent factual dispute.

Whether written or oral, even a care-fully crafted attempt to limit the scope ofthe engagement may not relieve the attor-ney of the duty to advise the client onmatters the attorney intended to exclude.When a client sues the attorney for legalmalpractice for failing to advise the clienton matters the attorney assumed, intendedor believed in good faith fell outside thescope of the engagement, even an expresslimitation of the engagement will be scru-tinized as to whether it achieved theintended goal of limiting the scope of therepresentation and the attorney’s dutiesto the client, whether the limitation wasreasonable under the circumstances asrequired by Rule 1.2(b) and whether theclient gave informed consent.

Failed Attempts to Limit Scope

In Nichols v. Keller, plaintiff consultedan attorney regarding a workplace injuryand his legal rights and remedies. Theattorney filed a worker’s compensationclaim and associated with a second attor-ney to prosecute the claim. Apparentlyneither attorney had a written engagementagreement. The plaintiff later learned froma third attorney that a third-party claimcould and likely should have been brought.The plaintiff sued his counsel for legalmalpractice for failing to advise him asto a potential third-party claim. The firstattorney claimed he only agreed to file

the plaintiff’s worker’s compensation caseand to refer him to the second attorneyto prosecute the claim. The second attor-ney maintained that his representationwas limited to prosecuting the claim thathad already been filed and that he hadno duty to prosecute or advise as to anythird-party claim.

The plaintiff’s expert, a certified work -er’s compensation specialist, opined thatboth attorneys fell below the standard ofcare by failing to advise the plaintiff ofthe different remedies available—includinga civil action—by failing to advise of thestatute of limitations applicable to anythird-party claim, by failing to advise plain-tiff to consult another attorney concerningany rights against third-parties, and byfailing to provide plaintiff with writtenadvice as to the precise scope of the rep-resentation, such as which rights the attor-ney would protect or which needed to bereviewed by other competent counsel.

The court concluded the representationwas not limited to the worker’s compen-sation claim:

“A significant area of exposure forthe workers’ compensation attorn -ey concerns that attorney’s respon-sibility for counseling regarding apotential third-party action.… Notonly should an attorney furnishadvice when requested, but he orshe should also volunteer opinionswhen necessary to further the client’sobjectives. The attorney need notadvise and caution of every possiblealternative, but only of those thatmay result in adverse consequencesif not considered.… Generally speak -ing, a workers’ compensation attor-ney should be able to limit the re -tention to the compensation claimif the client is cautioned (1) theremay be other remedies which theattorney will not investigate and (2)other counsel should be consultedon such matters.…[E]ven when aretention is expressly limited, theattorney may still have a duty toalert the client to legal problemswhich are reasonably apparent, eventhough they fall outside the scopeof the retention. The rationale isthat, as between the lay client andthe attorney, the latter is more qual-ified to recognize and analyze theclient’s legal needs. The attorneyneed not represent the client on suchmatters. Nevertheless, the attorneyshould inform the client of the lim-itations of the attorney’s represen-tation and of the possible need forother counsel.12

In Janik v. Rudy, Exelrod & Zieff,13

the issue was whether class counsel in anovertime wage class action owed a dutyto consider and advise the class represen-tatives to add an Unfair Competition Law(UCL) claim to their Labor Code claim.Because a UCL claim was subject to afour-year statute of limitations instead ofthe three-year statute applicable to theLabor Code claim, the plaintiff claimed aUCL claim would have produced an evenlarger recovery than the $90 million recov-ery obtained. The trial court found thatclass counsel had no duty to advise of anypotential UCL claim.

The reviewing court disagreed, how-ever. It agreed with defendants’ analogyof a class certification order to a retaineragreement but rejected their assertion that“an attorney cannot be sued in malprac-tice for failing to raise claims beyond thescope of a retainer agreement.”14 Whilethe scope of the attorney-client relation-ship may be limited by the retainer agree-ment, “an attorney who undertakes onematter on behalf of a client owes thatclient the duty to at least consider andadvise the client if there are apparentrelated matters that the client is overlook-ing and that should be pursued to avoidprejudicing the client’s interests.”15

Appellate Court Ruling

The appellate court ruled that “a causeof action under the UCL would have beenbased on precisely the same practice, andsubject to much the same legal analysis,as the certified cause of action under theLabor Code.”16 Furthermore, the courtfound that “Class counsel therefore wasobliged to consider the advantages anddisadvantages to the class of seeking toadd a UCL cause of action to their com-plaint, to bring these considerations tothe attention of the class representatives,and to take or recommend such action.”17

As the Janik case demonstrates, classcounsel can face unique challenges in lim-iting the scope of the representation, par-ticularly in light of their representationof absent class members with whom theyhave no fee agreement. Alternatively, inBarboza v. West Coast Digital GSM, Inc.,18 a trial court’s finding that class counsel’sjob did not end with entry of judgmentand extended to enforcement of the judg-ment was affirmed on appeal:

[U]nlike situations in which the lit-igant has retained an attorney toconduct litigation, where the litigantand the attorney agree upon thescope of the engagement, and theirrights and duties are governed bytheir agreement, in class actions,


where there is no agreement withabsentee class members to definethe scope of the engagement, classcounsel must represent all of theabsent class members’ intereststhroughout the litigation to theextent there are class issues, and itis the duty of the trial court toensure at every stage of the pro-ceeding that counsel is adequatelyrepresenting those interests.19

Faced with a judgment, a potentialattorney fee award, and a defendant whomay not have had sufficient or any assetsto satisfy a judgment or fee award, thetrial court in Barboza found counsel’sduty extended to enforcement of the judg-ment and investigation into the exis tenceof assets to satisfy the judgment, even ifit meant associating in counsel with en -forcement expertise, subject to the trialcourt’s subsequent determination whetherthe attorney should be relieved of any fur-ther obligations to the class if counsel dis-covered defendant lacked recoverableassets.20

Obtaining Informed Consent

Though Rule 1.2 permits an attorney tolimit the scope of the representation, the Nichols and Janik decisions provide

useful guidance to ensure that any at -tempt to limit the scope is effective. Eventhough both cases were decided longbefore Rule 1.2, paragraph (b), went in -to effect, they also assist in understandingthe reasonableness and informed consentrequirements.

The Janik court’s language confirmingan attorney’s duty to at least consider andadvise the client if there are apparentrelated matters that the client is overlook-ing and that should be pursued to avoidprejudicing the client’s interests should beenough to keep all attorneys alert as toany “apparent related matters,” both atthe outset of the representation and onan ongoing basis as issues arise throughoutthe representation, and to express anddocument the intended scope of the rep-resentation, to ensure that any attempt tolimit the scope is reasonable under thecircumstances, and to obtain informedclient consent.

One way to attempt to ensure that aclient’s consent to any limitation of therepresentation is informed would be toinclude a carefully worded provision in a written engagement agreement signedby the parties, which expressly 1) identi -fies the intended scope of the representa-tion, 2) limits the representation to matters

falling within the expressed scope, 3)specifically identifies any matters the attor-ney intends to exclude from the represen-tation, and/or that the parties have oth-erwise agreed to exclude, 4) explains orconfirms that the attorney has explainedthe relevant circumstances and materialrisks, including any actual and reasonablyforeseeable adverse consequences of theproposed limitation, and 5) advises theclient to seek legal advice as to mattersoutside the scope of the representation.Again, while in formed consent need notbe in writing to effectively limit the scopeof representation, a writing may avoiddisputes as to the nature of the parties’understanding, or the quality or suffi-ciency of the lawyer’s communication ofthe circumstances and material risks ofthe proposed limitation.

The takeaway is to always carefullyconsider the lawyer’s intended scope ofthe representation at the outset of thelawyer-client relationship, to consider anddiscuss the client’s reasonable expecta -tions as to the scope of the engagement,and to ensure compliance with Rule 1.2and other decisional authorities in orderto effectively limit the scope of the rep-resentation by ensuring that any limita -tion is objectively reasonable under thecircumstances and secured by the client’sinformed consent. n

1 Comm’n for the Revision of the CAL. R. OF PROF’LCONDUCT R. 1.2 Executive Summary. See CAL. R. OF

PROF’L CONDUCT R. 1.0.1 for defined terms containedin CAL. R. OF PROF’L CONDUCT.2 Cf. CAL. R. OF PROF’L CONDUCT R. 1.0.1(h) and1.0.1(i).3 CAL. R. OF PROF’L CONDUCT R. 1.0.1(e).4 See e.g., CAL. R. OF PROF’L CONDUCT R. 1.1, 1.8.1,5.6.5 Nichols v. Keller, 15 Cal. App. 4th 1672 (1993);Janik v. Rudy, Exelrod & Zieff, 119 Cal. App. 4th930, 940 (2004).6 See also A.B.A. MODEL R. OF PROF’L CONDUCT R.1.2, cmts. 6-8.7 Comm’n for the Revision of the Rules of Prof’lConduct R. 1.2 Executive Summary, citing Blantonv. Womancare, Inc., 38 Cal. 3d 396, 403-04 (1985).8 See CAL. RULES OF COURT R. 3.37.9 CAL. RULES OF COURT R. 3.35–3.37 apply to limitedscope representation in civil cases, while Rule 5.425applies to family law actions.10 Form FL-950 applies to family law cases.11 BUS. & PROF. CODE §6148.12 Nichols v. Keller, 15 Cal. App. 4th 1672, 1683-84(1993).13 Janik v. Rudy, Exelrod & Zieff, 119 Cal. App. 4th930 (2004).14 Id. at 940.15 Id.16 Id. at 942.17 Id. at 942-43.18 Barboza v. W. Coast Digital GSM, Inc., 179 Cal.App. 4th 540, 546-47 (2009).19 Id.20 Id.



HA

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the end of the Second WorldWar, with the Displaced Per -sons Act of 1948,1 the UnitedStates decided to open its

doors to refugees who had escaped Nazipersecution.2 However, the decision wasthe product of a long and tormented inter-nal debate on migration flows and thepossibility of welcoming a large numberof refugees from Europe.3 This was a his-toric turning point as the United Statesfinally took steps to end a long history ofclosing the door on immigration.

Throughout American history, in fact,federal laws often have targeted and re -stricted specific groups from entering the

United States on the basis of race, class, orother characteristics. The Chinese Ex clusionAct was the first significant law restrictingimmigration into the United States.4 In the1850s, Chinese workers began migratingto the United States to work in the goldmines but also to take agricultural jobs andfactory work, especially in the garmentindustry. The act was passed by Congressin 1882 and provided a 10-year moratoriumon Chinese labor immigration. It alsodeclared the Chinese ineligible for natural-ization. The act was renewed in 1892 foranother 10 years, and, in 1902, Chineseimmigration was made permanently illegal.The Chinese remained ineligible for citi-

Judith L. Wood is an immigration attorney and the principal in the Law Office of Judith L. Wood in LosAngeles. Federica Dell’Orto is an associate in the firm who practices international law as well ashuman rights and immigration law.

The Convention Against Terror only requiresan applicant demonstrate the likelihood oftorture upon return to the home country

by Judith L. Wood and Federica Dell’Orto

MCLE ARTICLE AND SELF-ASSESSMENT TEST

By reading this article and answering the accompanying test questions, you can earn one MCLE credit.

To apply for credit, please follow the instructions on the test answer sheet on page 21.

zenship until 1943.Not long after the end of World War I,

the law of 1921 and that of 1924 werebased on a precise calculation that took agiven year as a reference point. In the firstcase, the Emergency Immigration Act datedMay 19, 1921, limited the number of for-eigners admitted annually and by nation-ality to 3 percent of the number of theirrespective compatriots who were admittedto the United States in 1910.5 This lawwas applied until July 1924, when theImmigration Act, or Johnson-Reed Act,was adopted. The policy underlying bothacts favored immigrants of Anglo-Saxonand northern European origin. The Im -migration Act of 1924 included the Nat -ional Origins Formula, in which the quotasfor each nationality were reduced to 2percent of the respective nonnaturalizednationals registered in the United Statesin 1890. Indeed, while no specific “deroga-tory references” regarding Jews (or forthat matter Catholics from both Southernand Eastern Europe) were made in thecongressional debate that preceded enact-ment of the prior 1921 law, the fact thatrestriction of the immigration of largenumbers of Eastern European Jews escap-ing persecution played a significant rolein the national debate, which can be as -certained from contemporary data suchas that reported in the New York Timesthat then-current Secretary of State CharlesHughes had submitted an immigrationreport to Congress which stated that“prospective immigrants were largely com-posed of ‘Jews of an undesirable type.’”6

Although denied by Hughes subsequently,such information is indicative of prevailingviews of the period.7 Certainly, later, thewindow between 1938 and 1941 couldhave offered an excellent opportunity tosave the lives of many Jewish people butsaw instead a strengthening of the barriersagainst inbound migration.8 The UnitedStates and a large part of the westernworld, i.e., other countries of the WesternHemisphere and Europe, only began com-mitting to human rights after the end ofthe Second World War.

Immigration law in the United Stateshistorically also has been influenced byinternational political movements andevents. For example, in 1903, followingthe assassination of President WilliamMcKinley in 1901, the Anarchist ExclusionAct was issued and barred entry to theUnited States to immigrant anarchists andpeople judged to be political ex tremists.9

More recently, in 1979, after the beginningof the Iran hostage crisis, President JimmyCarter issued Executive Order 12172,which banned Iranians from entering the

United States unless they were against theIranian regime or had a medical emergency.Iranians present in the United States withstudent visas were demanded to report toimmigration officials within one monthor face possible deportation. In 2017, asimilar ban was issued regarding nationalsfrom seven Muslim-majority countries(Iran, Iraq, Libya, Somalia, Syria, Sudan,and Yemen). The original travel ban,Executive Order 13769, banned entry intothe United States for 90 days while pausingall refugee resettlement for 120 days andindefinitely banning the entry of all Syrianrefugees. The final edited version of theban, Executive Order 13780, is limited tovarious visa restrictions depending on thecountry of nationality; it also added threenew countries to the original list, includingNorth Korea and Venezuela.10

Despite the adoption of a more liberaloutlook on immigration after World WarII, in 1952, the “laws relating to immi-gration, naturalization, and nationality”were revised to include a regulation aimedat restricting entrance to the United Statesbased on various kinds of health criteria.11

Some of the grounds barring entrance were:mental health disorders, tuberculosis, lep-rosy, epilepsy or “any dangerous conta-gious disease.”12 Furthermore, the categoryof contagious diseases was later expandedand, in the 1980s, HIV/AIDS was addedto the list.13 Aliens infected with HIV wereconsidered ineligible for admission to theUnited States. This restriction was finallylifted in 2010.14

Turn Toward Human Rights

Together with international human rightslaw, refugee law originated for the mostpart in the aftermath of World War II,prompted by the horrifying crimes thathad been committed by the Axis powers(Germany, Italy and Japan). It becameclear that the international communityneeded to elaborate a legislative systemthat did not yet exist in order to protectindividuals from human rights violationsand genocides. Article 14 of the UniversalDeclaration of Human Rights,15 whichwas adopted in 1948, guarantees the rightto seek and enjoy asylum in other coun-tries.16 Subsequent regional human rightsinstruments17 have elaborated on thisright, guaranteeing the “right to seek andbe granted asylum in a foreign territory,in accordance with the legislation of thestate and international conventions.”18

“The convention’s definition of “refugee”has been adopted and assimilated intoU.S. law.19

The Displaced Persons Act20 was en -acted by Congress in 1948, after having

admitted over 250,000 displaced Euro -peans.21 This legislation provided for theadmission of an additional 400,000 peoplecoming from Europe.22 Later laws pro-vided for admission of people fleeing Com -munist regimes, largely from Hungary,Poland, Yugoslavia, Korea, and China,and (in the 1960s) Cubans fleeing FidelCastro.23

Under current immigration law, theattorney general of the United States maygrant asylum to a “refugee”24 who provesthat he or she is unwilling or unable toreturn to the country of origin “becauseof persecution or a well-founded fear ofpersecution on account of race, religion,nationality, membership in a particularsocial group, or political opinion.”25 The1980 Refugee Act incorporated the defin-ition of “refugee” established under theprotocol in the Immigration and Nation -ality Act (INA), and it did so by usingpractically the same language.26

The Refugee Act of 1980 made firmresettlement a statutory bar to refugee sta-tus, but not to asylum. In 1990, though,the U.S. attorney general amended the reg-ulations and extended the firm resettlementbar to asylum cases. Congress codifiedfirm resettlement as a statutory bar to asy-lum by passing the Illegal ImmigrationReform and Immigrant Responsibility Actof 1996.27 As a result, an applicant is inel-igible for asylum if he or she was “firmlyresettled in another country prior to arriv-ing in the United States.”28

According to the definition of “firmresettlement” in Section 1208.15 of Title8 of the Code of Federal Regulations, analien is considered to be firmly resettledif, prior to arrival in the United States, heor she entered into another country with,or while in that country received, an offerof permanent resident status, citizenship,or some other type of permanent reset-tlement. Matter of A-G-G- is the leadingcase from the U.S. Department of Just -ice’s Board of Immigration Appeals (BIA)with regard to firm resettlement.29 InMatter of A-G-G-, the BIA established afour-step analysis to evaluate whether thebar applies. The Department of Home -land Security (DHS) bears the burden ofpresenting prima facie evidence of an of -fer of permanent status. It is irrelevantwhether or not the applicant accepted theoffer, so long as “status” was availableto him or her.30 If the DHS is able to provethat an offer of permanent status existed,the burden of proof then shifts to theapplicant who will then have to demon-strate he or she did not receive an offerof firm resettlement or did not qualify. Iffirm resettlement is established, the burden



MCLE Answer Sheet #297

THE RIGHT TO ASYLUM

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INSTRUCTIONS FOR OBTAINING MCLE CREDITS

1. Study the MCLE article in this issue.

2. Answer the test questions opposite by markingthe appropriate boxes below. Each questionhas only one answer. Photocopies of thisanswer sheet may be submitted; however, thisform should not be enlarged or reduced.

3. Mail the answer sheet and the $25 testing fee($35 for non-LACBA members) to:

Los Angeles County Bar Association Attn: Los Angeles Lawyer Test P.O. Box 55020 Los Angeles, CA 90055

Make checks payable to: Los Angeles County BarAssociation.

4. Within six weeks, Los Angeles Lawyer willreturn your test with the correct answers, arationale for the correct answers, and acertificate verifying the MCLE credit you earnedthrough this self-study activity.

5. For future reference, please retain the MCLEtest materials returned to you.

ANSWERS

Mark your answers to the test by checking theappropriate boxes below. Each question has onlyone answer.

1. n A n B n C n D

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4. n A n B n C n D

5. n True n False

6. n True n False

7. n True n False

8. n True n False

9. n True n False

10. n True n False

11. n True n False

12. n True n False

13. n True n False

14. n True n False

15. n True n False

16. n True n False

17. n True n False

18. n True n False

19. n True n False

20. n True n False

MCLE Test No. 297The Los Angeles County Bar Association certifies that this activity has been approved for Minimum ContinuingLegal Education credit by the State Bar of California in the amount of 1 hour. You may take tests from backissues online at http://www.lacba.org/mcleselftests.

1. The Chinese Exclusion Act prohibited Chinesepeople from

A. Entering the United States.B. Naturalizing.C. Immigrating to the United States. D. All of the above.

2. Jews were restricted from entering the UnitedStates

A. In the early 1900s.B. in the late 1990s.C. In 2000.D. Never.

3. The Convention Against Torture prohibits the expulsion of

A. Nationals from China.B. Communists.C. People who prove that the government oftheir country will most likely torture them.D. Women from Central America.

4. A refugee must prove that he has a well-foundedfear of persecution based on

A. Sexual preference. B. Philosophical differences.C. Abortion.D. Race, religion, political opinion, particularsocial group.

5. Withholding of removal can be based on fear ofpersecution based only on a central protected ground.

True.False.

6. Asylum applicants are barred from asylum if theyhave firmly resettled in a third country.

True.False.

7. Exceptions to “firm resettlement” include a well-founded fear of persecution in the original country.

True.False.

8. Central American refugees are subject to thirdcountry removal due to agreements with Russian andPakistan.

True.False.

9. The Universal Declaration of Human Rights protectsthe right to apply for asylum.

True.False.

10. Membership in a particular social group is codified.

True.False.

11. Matter of A-B- greatly expands the right to applyfor asylum for women from Central America.

True.False.

12. Matter of A-B- makes it almost impossible for avictim of domestic violence to be granted asylumbased on membership in a particular social group.

True.False.

13. The Anarchist Exclusion Act barred entry of peopleconsidered to be political extremists.

True.False.

14. Genocide was the inspiration for the refugee law. True.False.

15. The Johnson-Reed Act favored immigrants fromthe former Soviet Union.

True.False.

16. The Refugee Act made firm resettlement a bar to asylum.

True.False.

17. The United States barred entry to Jews fleeingpersecution between 1921 and 1944.

True.False.

18. The Displaced Persons Act provided for admissionfor people from Cuba.

True.False.

19. Board of Immigration Appeals case Matter of A-G-G- determines the factors for a finding of “firm reset-tlement.”

True.False.

20. Women who suffer from persecution on accountof their gender are most likely to be granted asylum.

True.False.

of proof is on the applicant to demonstratethat an exception applies.31 There are twoexceptions to the firm resettlement bar.Under 8 CFR Section 1208.15(a), if anasylum seeker’s entry into that countrywas a necessary consequence of his or herflight from persecution, and he or sheremained in that country only as long aswas necessary to arrange onward travel,and did not establish significant ties inthat country, then there is no firm reset-tlement. Likewise, 8 CFR Section 1208.15(b) excludes resettlement if the condi-tions of the asylum seeker’s residence inthat country were so substantially and con-sciously restricted by the authority of thecountry of refuge that he or she was notin fact resettled.

Worldwide, women continue to sufferfrom discrimination, whether implicitly orexplicitly, and they are often denied theopportunity of being equal to men in allaspects of daily living.32 Forced marriage,honor-related violence, domestic violence,rape, and forced prostitution are only someof the examples of gender-related perse-cution.33 It is undeniable that millions ofwomen around the world are persecutedsolely because of their gender. In CentralAmerica and various other parts of theworld, women struggle to have govern-ments ensure, or in some cases recognize,their right to protection. In some countries,criminal law does not adequately addressdomestic violence. With regard to domesticviolence, one of the most significant deci-sions was Matter of A-R-C-G-, in whichthe BIA specifically recognized domesticviolence-based asylum claims and held that“married women in Guatemala who areunable to leave their relationship” can con-stitute a cognizable particular social groupand form the basis of a claim for asylum.34

In Matter of A-B,35 though, U.S. AttorneyGeneral Jeff Sessions overruled the prece-dent established in Matter of A-R-C-G-,because he found that in A-R-C-G- theBIA did not accurately apply the board’sprecedents regarding social distinction andparticularity. The attorney general furtherfound that “generally, claims by aliens per-taining to domestic violence or gang vio-lence perpetrated by non-governmentalactors will not qualify for asylum.”36 Inspite of Matter of A-B-, domestic violenceclaims can still be viably proposed andupheld if they are cognizable under theBIA’s test of immutability, particularity,and social distinction as established inMatter of M-E-V-G-.37

Gang-related claims based on persecu-tion from gang members face the samedifficulty as claims related to domestic vio-lence. Gang violence is a common denom -

inator in the Central America northern triangle and, in light of A-B-, it is a com -plicated process for an applicant to obtainasylum under this ground. As for domesticviolence, a membership within a particu -lar social group needs to be defined andfound cognizable. However, the determinedcriteria make it nearly impossible for ajudge to grant asylum based on member-ship within a Particular Social Group(PSG). As stated, an applicant qualifies asa refugee if he or she is unable or unwillingto return to the home country because ofa well-founded fear of future persecutionon account of race, religion, nationality,membership in a particular social group,or political opinion. Specifically, the cate-gory of PSG has never been preciselydefined. The Immigration and NationalityAct (INA) does not define PSG nor doesthe 1951 United Nations Refugee Con -vention. As a result, the PSG category andits tentative definition have been elaboratedby case law. The most relevant interpreta-tion of PSG was given in the BIA’s decisionin Matter of Acosta,38 in which the boardheld that “A particular social group iscomposed of members who share a com-mon immutable characteristic, such as sex,color, kinship ties, or past experience, thata member either cannot change or that isso fundamental to the identity or con-science of the member that he or she shouldnot be required to change it.” This standardand definition remained unchanged formany years, until more restrictive PSGrequirements were introduced throughMatter of A-B-.

Convention Against Torture Act

Oftentimes, in cases involving domesticviolence and/or gang violence, the onlyremedy available for the respondent iswithholding of removal or relief under theConvention Against Torture (CAT).39 Toreceive protection under CAT, the applicantmust establish that it is more likely thannot that he or she would be tortured ifreturned to the home country. The appli-cant must prove that government author-ities would be responsible for the tortureor would not act to prevent it. Protectionunder CAT does not require applicants toestablish that the torture is based on oneof the five protected grounds, as is requiredfor asylum or withholding of removalunder the INA.40

Withholding has even stricter criteriathan asylum and requires the applicant toprove that he or she would face a morethan 50 percent chance of persecutionbecause of one of the protected groundsif returned to the home country. The asy-lum statute expressly requires the applicant

to show that a protected ground is “onecentral reason” for the persecution, butthe INA is silent as to whether this standardextends to withholding of removal. InBarajas-Romero v. Lynch,41 however, theNinth Circuit held that Congress did notintend for the “one central reason” stan-dard to apply to withholding of removaland “‘a reason’ is a less demanding stan-dard than ‘one central reason.’”42 Thereis currently a split among federal circuitcourts regarding the standard to be appliedfor withholding. The Ninth Circuit, asexplained in Barajas, holds that the with-holding standard with regard to the reasonfor persecution is lower for withholdingthan for asylum.

Article 33 of the 1951 Convention statesthat “[n]o Contracting State shall expelor return (“refouler”) a refugee in anymanner whatsoever to the frontiers of ter-ritories where his life or freedom wouldbe threatened on account of his race, reli-gion, nationality, membership of a partic-ular social group or political opinion.”43

Countries are allowed to remove asylumseekers to a third country when the thirdcountry is considered safe and thereforethere is no formal violation of Article 33of the Convention.

According to the U.N. High Com mis -sioner for Refugees (UNHCR):

In determining whether a country is“safe”, states should take into ac -count the following factors: its re -spect for human rights and the ruleof law, its record of not producingrefugees, its ratification and compli-ance with human rights in strumentsand its accessibility to independentnational or international organiza-tions for the purpose of verifyingand supervising respect for humanrights.44

The Safe Third Country Agreementbetween Canada and the United Stateswas signed in 2002.45 This agreement estab-lishes that refugees traveling from theUnited States to Canada cannot seek polit-ical asylum in Canada simply because theyshould have asked for it in the UnitedStates. The United States and Canada haveentered into this agreement on the assump-tion that both countries have comparablestandards for asylum procedures as wellas formal guarantees to asylum seekers,so that a person transferred from one coun-try to another will have a fair assessmentof his asylum request.

In July 2019, Acting Secretary of Home -land Security Kevin K. McAleenan andGuatemalan Minister of Government E -nrique A. Degenhart Asturias signed theAgreement between the Government of


the United States of America and the Gov -ernment of the Republic of Guatemala onCooperation Regarding the Exam inationof Protection Claims.46 Article 3 of thisagreement provides a process for protectionof applicants transferred to Guatemala bythe United States after arriving in the UnitedStates at or between ports of entry. It alsosays that Guatemala will not return orexpel the applicants, thereby applying theprinciple of non-refoulement embodied inthe refugee convention and protocol.

On September 20, 2019, the UnitedStates signed a similar agreement with El Salvador47 and on September 25, 2019,with Honduras.48 These agreements re -quire migrants on their way to the UnitedStates to seek protection in those countriesfirst.

Under the 1980 Refugee Act, safe thirdcountry agreements are not consideredtreaties and therefore can be entered intowithout the approval of Congress.49 It isin fact established that the right to applyfor asylum in the United States “shall notapply to an alien if the attorney generaldetermines that the alien may be removed,pursuant to a bilateral or multilateral agree-ment, to a country…in which the alien’slife or freedom would not be threatened onaccount of race, religion, nationality, mem-bership in a particular social group, orpolitical opinion, and where the alienwould have access to a full and fair pro-cedure for determining a claim to asylum orequivalent temporary protection.”50 Often,though, Central American countries cannotprovide to migrants the protection or dueprocess that is required under the law, andmigrants are therefore left without an ade-quate system for adjudicating their asylumapplications.

While the United States has a long his-tory of providing protection and assistanceto people facing persecution, the recordalso demonstrates that official governmentpolicy has also periodically switchedbetween generously admitting migrantsand denying them entry. n

1 Displaced Persons Act of 1948, Pub. L. No. 80–774,62 Stat. 1010.2 See generally GIL LOESCHER & JOHN A. SCANLAN,CALCULATED KINDNESS: REFUGEES AND AMERICA’SHALF-OPEN DOOR, 1945 TO THE PRESENT (1986).3 SeeMichael J. Davidson, Sanctuary: A Modern LegalAnachronism, 42 CAP. UNIV. L. REV. 583 (2014).4 Pub. L. 47-136, 222 Stat. 58 (1882).5 Emergency Immigration Act (also known as theJohnson Quota Act. H.R. 4075), Pub. L. 67-5; 42Stat. 5. (1921).6 Vilja Lehtinen, “America Would Lose Its Soul”: TheImmigration Restriction Debate, 1920-1924 (Master’sthesis 2002) 84, available at http://ethesis.helsinki.fi/julkaisut/hum/histo/pg/lehtinen/americaw.html. 7 Id.

8 Until 1948, the U.S. immigration policy was restrictive.The Immigration Act of 1924 limited the number ofimmigrants allowed into the United States yearlythrough nationality quotas. In 1948, the DisplacedPersons Act of 1948 was passed, authorizing for alimited period of time the admission of hundreds ofthousands of Europeans into the United States. Pub.L. 80-774, 62 Stat. 1009.9 Immigration Act of 1903 (also known as the AnarchistExclusion Act), Pub. L. 57-162, 32 Stat. 1213 (1903).10 Exec. Order No. 13780, 82 Fed. Reg. 13209 (Mar.6, 2017).11 Immigration and Nationality Act of 1952, Pub. L.82-414, 66 Stat. 163 (codified at 8 U.S.C. §1182).12 Id. at §212(a)(6). 13 See Susan E. Winston & Curt G. Beckwith, TheImpact of Removing the Immigration Ban on HIV-Infected Persons, AIDS Patient Care STDS (Dec. 2011),available at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3263303. 14 Medical Examination of Aliens—Removal of HumanImmunodeficiency Virus (HIV) Infection From Defi -nition of Communicable Disease of Public HealthSignificance, 74 Fed. Reg. 31798 (Jul. 2, 2009) (codifiedat 42 C.F.R. pt. 34). 15 Universal Declaration of Human Rights. G.A. Res.217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc.A/810 (Dec. 12, 1948).16 “Asylum” is defined as "[t]he grant, by a State, ofprotection on its territory to persons from anotherState who are fleeing persecution or serious danger.”It encompasses various elements, including non-refoule-ment, permission to remain on the territory of the asy-lum country and humane standards of treatment.United Nations High Com’r for Refugees Global Report(UNHCR), Glossary (2005) [hereinafter UNHCR].17 Convention for the Protection of Human Rightsand Fundamental Freedoms, Member States of theCouncil of Europe, E.T.S. 005 (1950); the AmericanConvention on Human Rights “Pact of San Jose, CostaRica” (B-32). S. Treaty Doc. No. 95-21; 1144U.N.T.S.123; O.A.S.T.S. No. 36; 9 I.L.M. 99 (1970)[hereinafter American Convention on Human Rights];African Charter on Human and Peoples’ Rights, OAUDoc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982).Various other regional treaties have been elaboratedin an effort to render the protection not only of civiland political rights but also of economic, social, andcultural rights more efficient. 18 American Convention on Human Rights, supra note15.19 The 1951 Final Act of the United Nations Conferenceof Plenipotentiaries on the Status of Refugees andStateless Persons (A/CONF.2/108/Rev.1) [herein -after1951 Convention] contains what is still the mostwidely accepted definition of “refugee,” but the con-vention leaves it to each state to create suitable andadequate asylum proceedings and refugee status deter-minations. The United States is only a party to theprotocol, but through its ratification of the proto colin 1968, it committed to most of the obligations con-tained in the original 1951 document. In the U.N.High Commissioner for Refugees Glossary “refugee”is defined as "A person who meets the eligibility criteriaunder the applicable refugee definition, as providedfor by international or regional instruments, underUNHCR’s mandate, and/or in national legislation.” 20 Displaced Persons Act, Pub. L. 80–774, 62 Stat.1009 (1948).21 U.S. Dep’t of Health & Human Services, Office ofRefugee Resettlement, §2.22 Id.23 The Cuban Adjustment Act allowed permanent res-ident status to Cuban refugees who arrived in the U.S.after 1959. Pub.L. 89-732, 80 Stat. 1161. About onemillion Cubans emigrated to the United States between

1959 and 1990. Jorge Duany, Cuban Migra tion: A Post -revolution Exodus Ebbs and Flows, Migration PolicyInstitute (July 6, 2017), https://www.migrationpolicy.org/article/cuban-migration-postrevolution-exodus-ebbs-and-flows.24 See INA §101(a)(42), 8 U.S.C. § 1101(a)(42) (defin-ing “refugee”).25 Pub. L. No. 109-13 (MAY 11, 2005) (REAL ID Actof 2005); see also INS v. Cardoza-Fonseca, 480 U.S.421 (1987) (immigrant must show a “reasonable pos-sibility” of persecution—which may be less than thepreponderance-of-evidence standard required for gen-eral removal relief); 99 A.L.R. FED. 278 (1990).26 Refugee Act of 1980, Pub. L. 96–212, 94 Stat. 102.27 Illegal Immigration Reform and Immigrant Re spon -sibility Act of 1996, Pub. L. 104-208, 110 Stat. 3009.28 I.N.A. §208(b)(2)(A)(vi), 8 U.S.C. §1158(b)(2)(A)(vi);8 C.F.R. §§208.13(c)(2)(i)(B), 208.15.29 In Matter of A-G-G- (25 I&N Dec. 486 (BIA 2011)),the Board of Immigration Appeals built a regulatoryframework for deciding firm resettlement Section 208of the act.30 Matter of A-G-G-, 25 I&N Dec. 486 (BIA 2011).31 Id.32 See generally JANET MOMSEN, GENDER AND DEV -ELOPMENT (2009).33 Id.34 Matter of A-R-C-G-, 26 I&N, Dec. 388 (BIA 2014).35 Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018).36 Id.37 Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014).38 Matter of Acosta, 19 I&N Dec. 211 (BIA 1985).39 8 C.F.R. §208.16(c)(3).40 Id.41 Barajas-Romero v. Lynch, 846 F. 3d 351 (9th Cir.2017). 42 Id. at 360.43 While parties to the treaty are bound by its provi-sions, the convention contains provisions for with-drawing from the treaty or modifying it. Article 44includes a provision that any contracting state maydenounce the convention by notification addressed tothe secretary-general of the United Nations, and article45 of the convention states that any contracting statemay request revision of the convention at any time bya notification addressed to the secretary-general of theUnited Nations.44 UNHCR, the UN Refugee Agency, UNHCR’sPosition on Con clusions on Countries in Which Thereis Generally No Serious Risk of Persecution (Dec. 1,1992), available at https://www.refworld.org/docid/3ae6b31bb3.html (last accessed Jan. 28, 2020). 45 Agreement between the Government of Canada andthe Government of the United States of America forcooperation in the examination of refugee statusclaims from nationals of third countries (Dec. 5, 2002),available at https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement/final-text.html.46 Agreement between the Government of the UnitedStates of America and the Government of the Republicof Guatemala on Cooperation Regarding the Exam -ination of Protection Claims, 84 Fed. Reg. 64095 (July26, 2019), available at https://www.federalregister.gov/documents/2019/11/20/2019-25288/agreement-between-the-government-of-the-united-states-of-america-and-the-government-of-the-republic. 47 Press release, Homeland Security, Joint StatementBetween the U.S. Government and the Governmentof El Salvador (Sept. 20, 2019).48 Press release, Homeland Security, Acting SecretaryMcAleenan Signs Agreement with Honduras (Sept.25, 2019).49 8 U.S.C. 1158(a)(2)(A).50 Id.



KEN

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U.S. Supreme Courtrecently granted cert -iorari in United States

Patent and Trademark Office v. Book -ing.com, a decision of the Fourth CircuitCourt of Appeal, which found the brandname BOOKING.COM to be non-genericand protectable as a trademark. Booking.com B.V. is a business entity that has usedBOOKING.COM as a trademark to identifyits reservation services for hotel and othertravel accommodations to customers. Thecompany applied to register BOOKING.COM with the U.S. Patent and TrademarkOffice (USPTO) as a trademark for onlinehotel reservation services. The USPTO re -jected the application, finding it to be ageneric term and therefore not qualified fortrademark protection. Booking.com appealed

the USPTO decision to a federal court, and,in support of its position, it introduced asurvey showing that 75 percent of consumersrecognized BOOKING.COM as a brandrather than a generic identification of reser-vation services.

Relying on the survey and other evi-dence presented during the court proceed-ings, the district court found that the pri-mary significance of BOOKING.COM tothe consuming public was as a brand andnot a generic identification of hotel reser-vation services. Accordingly, the courtreversed the USPTO determination findingthat the survey results established that ithad acquired distinctiveness for registra-tion and held that BOOKING.COM iseligible for trademark protection as adescriptive mark.

The USPTO appealed the district court’sdecision to the Fourth Circuit Court ofAppeals, which was affirmed.1 The USPTOappealed the Fourth Circuit decision tothe U.S. Supreme Court by way of a petitionfor a writ of certiorari. The petition wasgranted on November 8, 2019.2

In the petition, the USPTO argues thatthe issue is a legal matter, namely, giventhe non-registrability of generic termsunder the Lanham Act, can the additionof a generic top-level domain, i.e., “.com,”to an otherwise generic term result in aprotectable trademark. The USPTO con-tends that the Supreme Court must over-turn the Fourth Circuit decision to giveeffect to its long-standing nineteenth cen-tury precedent, under which addition ofbusi ness identifiers, such as “Inc.,” “Co.,”

Dariush Adli is the founder and president of ADLI Law Group in Los Angeles. He specializes in patent, trademark, copyright, trade secret, and complexcommercial disputes.

GENERIC

On the issue of determining how genericness may be applied,the U.S. Supreme Court faces a choice in the standard of review

due to past precedent

by Dariush Adli

THE

or “Corp.” to a generic term does notrender the combination mark non-gen -eric.3 Just as “Inc.,” signifies a commercialentity, “.com” signifies a commercial web-site. In other words, “generic.com” is notprotectable.

Booking.com tries to frame the legalargument more narrowly, namely, whetherthe Fourth Circuit was incorrect in affirm-ing the district court decision, finding that

the USPTO had failed to carry its burdenof proving by clear evidence that BOOK-ING.COM, is primarily understood byconsumers as a generic term for onlinehotel reservation services.

The decision of the Supreme Court casemay well turn on the framework of analysiswhich the Supreme Court will adopt forits review, including the applicable burdensof proof, the standard of review and thequestion whether the Court will view theissue as factual or legal in nature.

Question of Law

In its argument, the USPTO advocates ade novo legal approach based on nine -teenth century Supreme Court precedent.Specifically, it argues, back in 1888, inGoodyear’s India Rubber Glove Manufact -uring Co. v. Goodyear Rubber Co., theSupreme Court held that the addition ofcorporate iden tifiers, such as “inc.,” “co.,”or “corp.” do not turn an otherwise genericmark into a non-generic combination.4

Accord ing to the USPTO, “.com” merelyidentifies a commercial website and is sim-ilar to a corporate identifier as found inGoodyear Rubber. That position does findsome support in more recent precedentsfrom the Federal Circuit that has foundsimi lar domain name trademarks, including“HO TELS.COM” and “MATTRESS.COM” to be generic and unprotectable.5

However, at the time of the GoodyearRubber decision and prior to enactmentof the Lanham Act, descriptive trademarkswere not protectable and the Court didnot make a specific finding of genericnessof the mark at issue. Instead, it referredto “Goodyear Rubber” as a descriptiveterm.6 In fact, the Supreme Court has dis-tinguished pre-Lanham Act trademark

decisions on the grounds that the act lib-eralized the common law by allowing reg-istration of descriptive terms when theyhave been found to have acquired sec-ondary meaning.7 In addition, the FederalCircuit has also distinguished GoodyearRubber as not creating a “per-se” rulewith respect to top-level domain namessuch as “.com.”8 Moreover, GoodyearRubber did not discuss, much less apply,

the “primary significance” standard fordetermining registrability of trademarks.

Finally, the USPTO has allowed regis-tration of marks similar to BOOK ING.COM, including STAPLES.COM foronline retail services for office supplies,WEATHER.COM for “on-line publica-tions…in the field[] of meteorology,”ANCESTRY.COM for “on-line electronicdatabases in the field of gen ealogy re -search,” and ANSWERS.COM for “[p]ro -vi ding specific information as requestedby customers via the Internet.”9

A key to the Supreme Court’s resolutionof this dispute relates to determining andapplying the relevant burdens of proof. Tostart with, the USPTO must prove gener-icness10 by clear evidence.11 The FourthCircuit Court of Appeal concluded thatthe district court correctly found that theUSPTO had failed to satisfy its burden ofproving that the relevant public primarilyunderstood BOOKING.COM to refer togeneral online hotel reservation servicesrather than a source identifier.12

Determination of genericness of a trade-mark depends on whether consumersunderstand the mark as describing theproduct or service itself, an issue of factto which survey evidence may be highlyprobative. Booking.com claims that the USPTO has failed to meet its bur den.The USPTO does not challenge the valid -ity of the survey presented by Booking.com, which demonstrates that consumers rec ognize BOOKING.COM as a brandrather than as referring to hotel reservationservices.

Definition of Genericness

The USPTO, seeking to meet its burdenof proving genericness, urges a definition

of genericness as “one that refers to thegenus of which the particular product is a species.” Booking.com advocates a mod-ification of this definition as “one whoseprimary significance is identifying such agenus.” In that regard, the Federal Cir cuithas defined genericness as one which“immediately conveys knowledge of a qual-ity, feature, function, or characteristic ofthe goods or services with which it is

used.”13 The evidence presented to theSupreme Court shows that BOOKING.COM has established secondary meaningand that the mark is primarily recognizedby consumers as a source identifier ratherthan a description of the service itself.Courts of appeal have emphasized theimportance of surveys to the determinationof genericness.14

However, there is evidence of othercomposite domain trademarks that containthe terms “booking” and “.com,” such as“hotelbooking.com” and “ebooking.com,”which may suggest that consumers under-stand BOOKING.COM as referring toonline hotel booking services. Courts havefound such composite use to be an indica-tion of genericness.15 However, even insuch cases, the deciding courts have con-sidered surveys to be relevant to a deter-mination of the public’s understanding ofthe proposed mark.16

One factor countering a finding of gen -ericness is that it can apply to a wide rangeof services in addition to hotel- and travel-related services, including, for example,theatrical or musical engagements.17 An -other pertinent question is whether gener-icness is determined by reference to thepublic’s use of a term or the public’s under-standing of a term. Courts have madeclear that the proper legal standard iswhether the public would understand amark to refer to a product or service ratherthan as a source identifier.18 However,usage is often an indication of the public’sunderstanding.19

As the USPTO frames the issue as alegal one to be determined by the court,it does not find the survey evidence pre-sented by Booking.com to be relevant tothe issue. To be sure, there are instances


Determination of genericness of a trademark depends onwhether consumers understand the mark as describing the

product or service itself, an issue of fact to which surveyevidence may be highly probative.

in which courts have found marks to begeneric despite contrary evidence shownby surveys. For example, in Hunt Mastersv. Landry’s Seafood Rest., Inc., the courtdisregarded survey evidence and foundthe term “crab house” to be generic. 20 Inthat regard, courts have recognized twodistinct bases for genericness. The firstcategory of generic terms concerns thosefound to have become generic throughgradual public understanding of the termas referring to the service or product itself,rather than as a source identifier. The sec-ond category of generic terms relates tothose that were commonly used prior toan attempt to use them as a source iden-tifier. Courts have explained that consumersurveys are relevant to the first categorybut not the second.21 Here, the districtcourt found that the term “BOOKING.COM” was not in prior use before itsselection by Book-ing.com as a sourceidentifier and, as such, survey evidencewas relevant to the determination of itsgenericness.

Bright Line Rule

The USPTO asks the Supreme Court toadopt a bright line rule when addition ofa top-level domain such as “.com” to ageneric term will render the combinationgeneric as well. The USPTO argues thatits position is supported by the GoodyearRubber decision, in which the SupremeCourt held that the addition of businessentity identifiers such as “Inc.,” “Co.,”and “Corp.” to generic terms does not ren-der the combination non-generic.

Goodyear Rubber, however, was de -cided long before enactment of the Lan -ham Act in 1946 and, notably, did notapply the “primary significance” test ofgenericness provided for in the act. Inaddition, as noted by the Fourth Circuit,there is no precedent for adoption of thebroad legal rule advocated by the USPTO,and, in fact, courts have left the door opento protection of marks in a “.top-leveldomain” combination with a generic termin which there is a showing of the public’sunderstanding.22

The USPTO further argues for an addi-tional bright line that a mark made upof two generic parts is necessarily genericas well. It reasons that, since “booking”is a generic term for hotel reservation ser-vices and “.com” is generic identifier foran online company, the consuming publicwould understand the resulting combi-nation to be generic for the online bookingservices at issue. However, courts haveexplained that the primary significanceof individual terms in a compound wordmark is relevant but not conclusive to the

determination of genericness for the wholemark.23 For example, in Frito-Lay N. Am.Inc. v. Princeton Vanguard, LLC, theTrademark Trial and Appeal Board (TTAB)evaluating genericness of PRETZELCRISPS observed that, in addition to deter-mining the public’s primary understandingof “PRETZEL” and “CRISPS,” it mustalso consider evidence whether “PRETZELCRISPS” is perceived primarily to refer toa crispy pretzel or to a particular source.24

In the case of BOOKING.COM, the FourthCircuit declined to adopt a bright line rulethat the combination of a generic termwith a top-level domain is always generic.More to the point, the district court foundthat the term BOOKING.COM was notcommonly used prior to its adoption as amark by Booking.com. Therefore, itsadmission of evidence presented, such assurveys, was appropriate to the determi-nation of genericness.

With respect to domain name marks,the Fourth Circuit distinguished its priordecisions finding genericness of combin -ation marks such as “crab house,” by ex -plaining that consumers are more likelyto recognize domain names to indicatespecific locations on the Internet.25 TheFourth Circuit found this distinction to besignificant in that while a domain namemark may generally refer to the serviceprovided, evidence may nonetheless showthat consumers recognize the domain nameas a source identifier, rather than the serviceit describes.26

Anticompetitive Impact

One concern expressed by the USPTOin support of its position before the Su -preme Court is that a decision findingBOOKING.COM as a protectable trade-mark would result in anticompetitiveharmby allowing Booking.com and othersimilar businesses to extend their trade-marks to include other domain namemarks, which include their second-leveldomain. Courts have expressed suchpotential anticompetitive concerns in sim-ilar situations.27

However, the Fourth Circuit pointedout that protection of BOOKING.COMwould only extend to the limited categoryof hotel reservation services. Ac cord ingly,other domain name marks, which includebooking, such as vacationbooking.comor travelbooking .com, would not neces-sarily be impacted by the decision. TheFourth Circuit also noted that domainnames are unique by nature, which wouldmake it difficult for a domain name trade-mark owner to demonstrate “likelihoodof confusion” with other domain namemarks that utilize the same second-level

domain as part of his or her longer do -main name marks.28

Supreme Court Scope of Review

As noted, the framework within which theSupreme Court will conduct its review willlikely have a significant impact on the out-come of its decision. In general, directappeal of a decision of the TTAB must bebrought in the Federal Circuit Court ofAppeal where the review will be based onthe record without the opportunity to intro-duce new evidence. A challenger who seeksto develop and supplement the record con-sidered by the TTAB has the option of ini-tiating an action in a district court in whichadditional evidence may be received by thecourt. The district court’s decision, can, inturn, be appealed to the appropriate courtof appeal.

Importantly, in a direct appeal of aTTAB decision, the Federal Circuit reviewsthe TTAB’s factual findings for substantialevidence while reviewing legal issues denovo. When a case is initiated first at thedistrict court and new evidence is presented,the district court reviews the TTAB decisionde novo. In an appeal of the district courtdecision, a court of appeal reviews the dis-trict court’s factual findings for clear errorand its legal determinations de novo.

Since the USPTO contends that theSupreme Court should review the matterbefore it as one of law and thus subjectto de novo review by the reviewing courts,the USPTO insists that “.com” identifiesan Internet domain and that its additionto a generic term does not render the com-bination protectable.29 The USPTO citesother court of appeal decisions, whichhave found structurally similar “.com”domain marks to be generic and non-pro-tectable. For example, the Federal Circuitupheld the TTAB’s denial of protectionfor the proposed mark (HOTELS.COM)that shared the same legal and factualframework as BOOKING.COM.30 In thatcase, Hotels.com also stated that thatdetermination of genericness is a factualissue and that the standard of review offactual determinations by the TTAB issubstantial evidence.31

The Supreme Court faces a choice inthe standard of review it applies to theFourth Circuit decision. On the one hand,there is no disagreement that under long-standing precedent, determination of gener-icness is a question of fact rather than aquestion of law. Therefore, the SupremeCourt is unlikely to change that standardfrom a factual one to a legal one. On theother hand, the Supreme Court did hold,albeit prior to the codification of trademarklaw under the Lanham Act, in Rubber


Glove, that “generic.inc.” is still genericas a matter of law, regardless of the “pri-mary significance” of the combination tothe consuming public.32

In conducting its review, the SupremeCourt will likely find that the Fourth Circuitapplied the proper standard of review tothe determination of the district court thatthe primary significance of BOOKING -.COM to the consuming public is as atrademark rather than a description of theservices provided. In that light, the SupremeCourt is more likely to uphold the FourthCircuit decision. n

1 Booking.com B.V. v. United States Patent & Trade -mark Office, 915 F. 3d 171, 177 (4th Cir. 2019), asamended (Feb. 27, 2019).2 Patent & Trademark v. Booking.com B.V., No. 19-46, 2019 WL 5850636, at *1 (U.S. Nov. 8, 2019).3 Booking.com B.V. v. Matal, 278 F. Supp. 3d 891,910 (E.D. Va. 2017).4 Goodyear’s India Rubber Mfg. Co. v. GoodyearRubber Co., 128 U.S. 598 (1888). 5 In re Hotels.com, 573 F.3d 1300; In re 1800Mat tress -.com, 586 F. 3d 1359.6 Goodyear Rubber Co., 128 U.S. at 602.7Qualitex Co. v. Jacobson Prod. Co., 514 U.S. 159, 171.8 In re Oppedahl & Larson, 373 F. 3d 1171, 1175(Fed. Cir. 2004); In re Steelbuilding.com, 415 F. 3d1293, 1299 (Fed. Cir. 2005).9 Booking.com B.V., 2019 WL 5850636, at *13-14,Petition for a Writ of Certiorari. 10 In re Cordua Restaurants, Inc., 823 F. 3d 594, 600(Fed. Cir. 2016).11 Id.12 Booking.com B.V. v. United States Patent & Trade -mark Office, 915 F. 3d 171, 181 (4th Cir. 2019), asamended (Feb. 27, 2019).13 In re Chamber of Commerce, 675 F. 3d 1297, 1300(Fed. Cir. 2012).14 See Berner Int’l Corp. v. Mars Sales Co., 987 F. 2d975, 982 (3d Cir. 1993); Princeton Vanguard, LLC v.Frito-Lay N. Am., Inc., 786 F. 3d 960, 969 29 (Fed.Cir. 2015).15 See, e.g., Advertise.com, Inc. v. AOL Advertising,Inc., 616 F. 3d 974, 980-81 (9th Cir. 2010); In reHotels.com, L.P., 573 F. 3d 1300, 1304 (Fed. Cir.2009); In re Reed Elsevier Props., Inc., 482 F. 3d 1376,1380 (Fed. Cir. 2007).16 See, e.g., In re Hotels.com, 573 F. 3d at 1304–05.17 Booking.com, 915 F. 3d at 182.18 Glover v. Ampak, Inc., 74 F. 3d 57, 59 (4th Cir. 1996).19 Booking.com, 915 F. 3d at 182.20 Hunt Masters, Inc. v. Landry’s Seafood Rest., Inc.,240 F. 3d 251, 254 (5th Cir. 2001).21 Id. at 254-255.22 Advertise.com, Inc. v. AOL Advertising, Inc., 616F. 3d 974, 980-81 (9th Cir. 2010); In re Hotels.com,573 F. 3d at 1304-05.23 Hunt Masters, 240 F. 3d at 254.24 Frito-Lay N. Am. Inc. v. Princeton Vanguard, LLC,124 U.S.P.Q. 2d 1184 at *22 (TTAB 2017). 25 Booking.com, 915 F. 3d at 185-86.26 Id. at 186.27 Advertise.com, 616 F. 3d at 980-81.28 Booking.com, 915 F. 3d at 187.29 1800Mattress.com IP, LLC, 586 F. 3d 1359, 1364(Fed. Cir. 2009)30 In re Hotels.com, L.P., 573 F. 3d 1300 (Fed. Cir. 2009).31 Id. at 1302.32 Goodyear’s Rubber Mfg. Co. v. Goodyear RubberCo., 128 U.S. 598, 602–603 (1888).



ethics opinion LOS ANGELES COUNTY BAR ASSOCIATION PROFESSIONAL RESPONSIBILITY AND ETHICS COMMITTEE

Opinion No. 532: Lawyer Agreeing to Indemnify Opposing Partyas a Condition of Settlement

The Los Angeles County Bar Association Professional Responsibility and Ethics Committee (PREC) prepares written opinions and responds to questions bylawyers concerning lawyers’ ethical duties and responsibilities. You may access PREC’s formal opinions through the LACBA website at https://www.lacba.org/resources/ethics-opinions. If you have a legal ethics issue (not currently in litigation), please e-mail your inquiry, marked as confidential, [email protected].

BACKGROUND

Plaintiffs in personal injury actions often seek financial assistancefor medical services from Medicaid, Medicare, workers com-

pensation carriers, or private insurance carriers. These payorsmay be entitled by statute or contract to reimbursement by theplaintiff if the plaintiff recovers damages. To protect themselves

SUMMARY: 1. Plaintiff’s counsel in a personal injury action may not enter into an agreement to defend and indemnify defendants,

defense counsel or their liability insurers against an action brought against them by third parties, such as Medicare or health

insurers, to recover a debt plaintiff might owe the third parties. First, such an agreement is prohibited as an improper payment of

the client’s personal and business expenses under rule 1.8.5(a).1 Second, such an agreement would create a conflict of interest

between the lawyer and the client by compromising the lawyer’s exercise of independent professional judgment and, even if the

lawyer nevertheless could continue the representation under rule 1.7(b), the lawyer would remain barred from agreeing to indemnify

by rule 1.8.5(a). Third, rule 1.16(a)(2) would require the lawyer to withdraw if the client were to demand that the lawyer provide the

indemnification.

2. Because plaintiff’s counsel’s agreement to such an arrangement would violate the rules of professional conduct, defendant’s

counsel’s demand that plaintiff’s counsel agree to indemnify defendants and their agents would violate rule 8.4(a), which prohibits

a lawyer from soliciting or inducing a violation of the Rules of Professional Conduct or the State Bar Act.

AUTHORITIES CITED: Rules of Professional Conduct: Cal. Rules of Professional Conduct, Rules 1.0, 1.0.1(e), 1.0.1(e-1), 1.2, 1.4.1, 1.7,

1.8.5, 1.15, 1.16, 2.1, 8.4; Cal. Rules of Court, Rule 3.1130. Statutes: 42 C.F.R. §411.24, 42 U.S.C. §1395y. Cases: Beck v. Wecht, 28 Cal.

4th 289 (2002); Blanton v. Womancare Inc., 38 Cal. 3d 396 (1985); Gafcon, Inc. v. Ponsor & Assocs., 98 Cal. App. 4th 1388 (2002);

Saunders v. Weissburg & Aronson, 74 Cal. App. 4th 869 (1999); United States v. Harris, No. 5:08CV102, 2009 WL 891931 (N.D. W. Va.

Mar. 26, 2009). Ethics Opinions: California – Cal. State Bar Ops. 1981-55, 1988-101; L.A. County Bar Op. 517 (2006). Other Jurisdictions2

– Ala. State Bar Ethics Op. RO 2011-01; Alaska Bar Ass’n Ethics Op. 2014-4; Ariz. State Bar Ethics Op. 03-05; Del. State Bar Comm.

on Prof’l Ethics Op. 2011-1; Fla. Bar Staff Op. 30310 (2011); Ga. State Bar Formal Advisory Op. 13-2; Ill. State Bar Advisory Op. 06-01;

Ind. State Bar Legal Ethics Op. 2005-1; Me. Ethics Op. 204 (2011); Mo. Formal Advisory Op. 125 (2008); Mont. State Bar Op. 131224

(2013); Supreme Court of Ohio Ethics Op. 2011-1; Okla. State Bar Ethics Op. 328 (2011); Or. State Bar Formal Op. 2015-190; S.C.

Ethics Advisory Op. 08-07; Tenn. State Bar Formal Ethics Op. No. 2010-F-154; Utah Ethics Advisory Op. 11-01; Vt. Bar Formal Ethics

Op. 2013-1; Va. Legal Ethics Op. 1858 (2011); Wash. State Bar Advisory Op. 1736 (1997); Wis. Formal Op. E-87-11 (1987); N.Y. City Bar

Ass’n Formal Op. 2010-3; Philadelphia Bar Ass’n Prof’l Guidance Comm. Op. 2011-6.

NOTE: The text of this formal opinion by the Los Angeles County Bar Association Professional Responsibility and Ethics Committee ispublished verbatim as the committee first issued the opinion except that the authorities section has been conformed to Los Angeles Lawyerstyle guidelines, i.e., modified Bluebook style.

against liability from such claims for reim-bursement, a defendant and defendant’slawyer might demand that plaintiff orplaintiff’s lawyer agree to indemnify themas a condition of settlement.

ISSUES

1. May plaintiff’s counsel, as part of settlinga personal injury action, agree to defendand indemnify the defendants, includingdefense counsel and liability insurers,against an action brought against them bythird parties, such as Medicare or healthinsurers, to recover a debt plaintiff mightowe the third parties?2. May defendant’s counsel ethically requestor demand that plaintiff’s counsel enterinto a such an agreement with defendants,including defendant’s counsel and liabilityinsurers, as a condition of settlement?3

DISCUSSION

IntroductionEvery jurisdiction that has addressed theissues presented in this opinion has an -swered both questions in the negative. Atleast twenty-one jurisdictions and two localbar associations have concluded that alawyer agreeing to such an indemnificationagreement would violate one or more rulesof professional conduct.4 At least ten juris-dictions and one local bar association havealso concluded defendant’s counsel cannotrequest or condition a settlement on aplaintiff’s lawyer agreeing to indemnify.5

As discussed below, this committee agreeswith these conclusions.Issue 1: Whether plaintiff’s lawyer in apersonal injury action may agree as acondition of settlement to indemnify andhold harmless defendant, defendant’scounsel, and liability insurer.

This issue requires a consideration ofthe plaintiff’s lawyer’s ethical obligationswhen a defendant seeks indemnificationin a personal injury action.6 Although thelawyer’s exposure can become complicatedwhen a defendant seeks to protect itselfagainst liability under the Medicare, Medi -caid and SCHIP Extension Act of 2007(“MMSEA”),7 the Committee’s opinionregarding the ethics of the situation is thesame regardless of whether the potentialclaim for reimbursement against the defen-dant arises under that Act, Workers Com -pensation, or a private insurance policy.

Payment of Personal or Business Ex -penses Incurred by a Client. Rule 1.8.5 isrelevant to whether a lawyer may providefinancial assistance to a client in the formof an indemnification agreement. Rule1.8.5(a) provides “[a] lawyer shall notdirectly or indirectly pay or agree to pay,guarantee, or represent that the lawyer or

lawyer’s law firm will pay the personal orbusiness expenses of a prospective or exist-ing client.” Paragraph (a) applies whetherthe lawyer provides financial assistance“directly or indirectly.” An agreement toindemnify and defend defendant or defen-dant’s lawyer from an action by third par-ties to collect on a debt owed by thelawyer’s plaintiff client fits squarely withinparagraph (a)’s prohibition on “indirectly”providing financial assistance to a client.In effect, the lawyer promises to providethe necessary assistance, i.e., pay the client’sdebts to medical service providers, to pre-vent the client from being subject to a col-lection action. Such a promise in effectprovides the client with credit, a form offinancial assistance. Further, the lawyer’sagreement to indemnify the defendantsand their agents to induce the defendantsto go forward with the settlement is a“guarantee” within the meaning of therule and would provide another basis forfinding a rule 1.8.5(a) violation.

Paragraph (b) provides several excep-tions to the paragraph (a) proscriptions,but the Committee concludes that noneof them is applicable. First, subparagraph(b)(3) permits a lawyer to advance thecosts of prosecuting or defending a claimor otherwise protecting the interests of theclient and further provides that the repay-ment may be made contingent on the mat-ter’s outcome. The “costs” under this sub-section, although not restricted to taxablecosts recoverable under statute or rule ofcourt, are “limited to any reasonable*expenses of litigation, including court costs,and reasonable* expenses in preparing forlitigation or in providing other legal servicesto the client.” (Emphasis added.) The lia-bility that a lawyer could incur under theindemnification agreement are not “rea-sonable expenses” as contemplated underthe rule.8 To the contrary, by agreeing toindemnify defendants and their agents, thelawyer is exposed to liability for potentiallysubstantial reimbursement payments.9

Second, although subparagraph (b)(2)permits a lawyer, “[a]fter the lawyer isretained by the client to lend money tothe client based upon the client’s written*promise to repay the loan,” provided thelawyer complies with rules 1.7(b), 1.7(c),and 1.8.1. The Committee does not believethat an agreement to indemnify a creditorof a client constitutes a loan within themeaning of rule 1.8.5(b)(2). The exceptionin subparagraph (b)(2) to rule 1.8.5(a)’sprohibition on providing financial assis-tance to a client is not applicable.10

A third exception appears at first glanceto apply in an indemnity situation.Subparagraph (b)(1) permits a lawyer to

pay or agree to pay business or personalexpenses to third persons “from funds col-lected or to be collected for the client as aresult of the representation,” provided theclient gives consent. Generally, it wouldbe expected that reimbursement paymentsa personal injury client would make tomedical service providers or their insurerswould be made from funds that the client’slawyer would have collected in the action.However, the indemnification clause ad -dressed in this opinion would not be limitedto holding the indemnifying lawyer liableonly to the extent that funds “collectedfor the client” remained in the lawyer’spossession. The lawyer would be subjectto open-ended liability to third personsregardless of whether any recovered clientfunds remained in the lawyer’s trust ac -count and were available to be used. Theexception in subparagraph (b)(1) of rule1.8.5 thus would not be applicable.11

Accordingly, it is the Committee’s opin-ion that rule 1.8.5 prohibits a lawyer fromproviding the contemplated indemnificationof defendants and their agents, includingtheir lawyers. This conclusion conformsto that of nearly every ethics opinion thathas addressed the issue.12

Conflict of Interest and Independenceof Professional Judgment. Under rule1.7(b), a lawyer is prohibited from repre-senting a client “if there is a significantrisk the lawyer’s representation of the clientwill be materially limited by the lawyer’sresponsibilities to or relationships withanother client, a former client or a thirdperson,* or by the lawyer’s own interests.”(Em phasis added.) The contemplatedindemnification agreement would appearto create a financial interest of the lawyerin the subject matter of the litigation thatgoes beyond a source of payment of thelawyer’s fees. Rule 1.7(b), however, autho-rizes a lawyer to continue representing aclient if the client gives “informed writtenconsent.”13 However, we conclude thatinformed written consent is not availableunder rule 1.7(b) because it would notovercome the rule 1.8.5 prohibition andbecause of the additional requirements ofrules 1.2 and 2.1.14 Rule 1.2(a) providesin pertinent part that “[a] lawyer shallabide by a client’s decision whether tosettle a matter.” Rule 2.1 provides in rel-evant part that “[i]n representing a client,a lawyer shall exercise independent pro-fessional judgment and render candidadvice.” Taken together, these rules operateto prohibit a lawyer from agreeing to theindemnification. The Arizona opinion onindemnification explains how the interac-tion of these rules create an impermissibleconflict between the interests of the client


and those of the lawyer:The mere request that an attorneyagree to indemnify [defendants]against lien claims creates a poten-tial conflict of interest between the[plaintiff] and the [plaintiff’s] attor-ney. The attorney’s refusal, for ethicalreasons, to accede to such a demandas a condition of settlement couldprevent the client from effectuatinga settlement that the client otherwisedesires.

The insistence upon an attorney’sagreement to indemnify as a condi-tion of settlement could, for exam-ple, cause the lawyer to recommendthat the client reject an offer thatwould be in the client’s best interestbecause it would potentially exposethe lawyer to the payment of hun-dreds of thousands of dollars in lienexpenses, or litigation over such lienexpenses.

The attorney’s acceptance of sucha condition would also create a con-flict of interest with an existingclient under ER 1.7 because theclient’s failure or refusal to repay alien could make the client’s lawyerits guarantor.

That might materially limit therepresentation by virtue of the law -yer’s own interest in having the client(rather than the lawyer) pay the liensin full. Even if the lawyer were will-ing to accept that potential financialburden, and even if the lawyer wereethically permitted to provide suchfinancial assistance, such an agree-ment might compromise the lawyer’sexercise of independent professionaljudgment and rendering of candidadvice in violation of ER 2.1.

While ER 1.2 requires an attor-ney to abide by a client’s decisionwhether to accept an offer of settle-ment, a settlement agreement thatrequires the attorney to indemnify,or hold the [defendants] harmless,violates ER 1.8.

Since, under ER 1.8, an attorneycannot ethically provide financialassistance to a client by paying, oradvancing, the client’s medicalexpenses before or during litigation,an attorney cannot ethically agree,voluntarily or at the client’s or[defendant’s] insistence, to guarantee,or accept ultimate liability for, thepayment of those expenses.15

This Committee has concluded that thereasoning of the Arizona opinion is per-suasive, and rule 2.1 is identical to ArizonaRule 2.1, which requires that a lawyer

exercise independent professional judg-ment.15 That independent judgment wouldbe compromised by the lawyer agreeingto indemnify the defendants.

Second, California Rule 1.2(a) containslanguage identical to Model Rule 1.2(a)that requires that a lawyer “abide” by theclient’s decision to settle a matter.16 Not -withstanding rule 1.2, however, the clientlacks authority to impose liability on thelawyer with respect to the client’s obliga-tions. Under the facts presented, the lawyerwould be hard pressed to independentlyevaluate the settlement, leaving the clientwithout the lawyer’s impartial advice onmaking an informed decision. The lawyer’sexercise of independent professional judg-ment on behalf of the client would becompromised, creating an impermissibleconflict between the client’s desire to final-ize the settlement of the client’s actionand the lawyer’s understandable reluctanceto be liable for a reimbursement paymentor the costs of defending against such aclaim.

Withdrawal from the representation.Rule 1.16(a)(2) provides that a lawyer mustwithdraw from the representation if thelawyer “knows* or reasonably* shouldknow that the representation will result inviolation of these rules or of the State BarAct.” The Committee concludes that aclient’s request that the lawyer execute anindemnification agreement would not byitself implicate rule 1.16(b)(2). A clientmight suggest particular actions in the hopethat the lawyer is not constrained by a pro-fessional duty, and the lawyer’s properresponse would include communicatingwith the client as required by rule 1.4(a)and (b) so that the client can make in -formed decisions. However, the lawyermust withdraw if the client were to demandthat the lawyer agree despite the lawyer’sexplanation. Accord, Georgia State BarFormal Advisory Opn. 13-2 (citing toGeorgia Rule 1.16, cmt. [2].) See alsoArizona State Bar Ethics Opn. 03-05;Indiana State Bar Association Legal EthicsOpn. 2005-1.

In sum, a plaintiff’s lawyer may not,as a condition of settlement, enter into anagreement to indemnify and defend thedefendant, or defendant’s counsel or lia-bility insurer against claims that might bebrought by plaintiff’s third-party medicalservice providers to collect on plaintiff’sdebts.Issue 2: Whether defendant’s lawyer in apersonal injury action may condition set-tlement of plaintiff’s matter on plaintiff’scounsel’s agreement to indemnify.

Rule 8.4(a) provides it is professionalmisconduct for a lawyer to: “violate these

rules, the State Bar Act, knowingly* assist,solicit, or induce another to do so, or doso through the acts of another.” As dis-cussed in relation to the first issue, alawyer’s agreement to indemnify under thecircumstances posited would violate rules1.8.5, 1.7(b), and 2.1. Consequently, defen-dant’s lawyer can neither request nordemand that plaintiff’s lawyer agree toindemnify as a condition of settlementbecause the defendant’s lawyer would vio-late rule 8.4(a) by soliciting, if plaintiff’slawyer were to refuse, or by inducing orassisting in a violation if the defense lawyerwere successful in obtaining plaintiff’slawyer’s agreement. Other jurisdictionsthat have addressed this second issue areunanimous in this conclusion.17

This opinion is advisory only. TheCommittee acts on specific questions sub-mitted ex parte, and its opinion is basedon such facts as are set forth in the inquiry.

1 Unless otherwise indicated, all references to a “Rule”or “rule” are to the California Rules of ProfessionalConduct.2 Comment [4] to Rule 1.0 of the California Rules ofProfessional Conduct provides in relevant part: “[O]pin-ions of ethics committees in California, although notbinding, should be consulted by members for guidanceon proper professional conduct. Ethics opinions andrules and standards promulgated by other jurisdictionsand bar associations may also be considered.”3 This Opinion is limited to these two questions anddoes not address what the lawyer’s duties might be ifthe third party provider has a valid and enforceablestatutory or contractual lien against the plaintiff. See,e.g., rule 1.15(a) and Comment [1].4 Jurisdictions that have answered the first issue inthe negative include: Alabama State Bar Ethics Opn.RO 2011-01; Alaska Bar Association Ethics Opn.2014-4; Arizona State Bar Ethics Opn. 03-05; DelawareState Bar Association Committee on Professional EthicsOpn. 2011-1; Florida Bar Staff Opn. 30310 (2011);Georgia State Bar Formal Advisory Opn. 13-2; IllinoisState Bar Association Advisory Opn. 06-01; IndianaState Bar Association Legal Ethics Opn. 2005-1; MaineEthics Opn. 204 (2011); Missouri Formal AdvisoryOpn. 125 (2008); Montana State Bar Opn. 131224(2013); Supreme Court of Ohio Opn. 2011-1;Oklahoma State Bar Association Ethics Opn. No. 328(2011); Oregon State Bar Formal Opn. 2015-190;South Carolina Ethics Advisory Opn. 08-07; TennesseeState Bar Formal Ethics Opn. No. 2010-F-154; UtahEthics Advisory Opn. 11-01; Vermont Bar FormalEthics Opn. 2013-1; Virginia Legal Ethics Opn. 1858(2011); Washington State Bar Association AdvisoryOpn. 1736 (1997); Wisconsin Formal Opn. E-87-11(1998). In addition, at least two local bar associationshave reached the same conclusion. See New York CityBar Association Formal Opn. 2010-3; PhiladelphiaBar Association Professional Guidance CommitteeOpn. 2011-6 (2012).5 Jurisdictions that have addressed the second issue,all of which answered in the negative are: AlabamaState Bar Ethics Opn. RO 2011-01; Alaska BarAssociation Ethics Opn. 2014-4; Florida Bar StaffOpn. 30310 (2011); Missouri Formal Advisory Opn.125 (2008); Supreme Court of Ohio Opn. 2011-1;Oklahoma State Bar Association Ethics Opn. No. 328(2011); Oklahoma State Bar Association Ethics Opn.No. 328 (2011); Utah Ethics Advisory Opn. 11-01;


Vermont Bar Association Advisory Opn. 2013-1;Virginia Legal Ethics Opn. 1858 (2011). In addition,the New York City Bar Association reached the sameresult.6 The Committee notes that pursuant to CaliforniaRule of Court, rule 3.1130(b), a lawyer may not actas a surety (“An officer of the court or member of theState Bar may not act as a surety.”) However, whetherthe indemnification clause sought by defendants mightmake plaintiff’s lawyer a surety is a question of lawbeyond the purview of this committee.7 Of particular concern for defendants under theMMSEA are the new reporting requirements enactedin 2007. Under these new requirements, when thereis a settlement, the defendant and its insurer have aduty to report certain payment details to the govern-ment and can be fined substantial amounts if they failto report accurately. Because the defendant typicallymust rely on information provided by the plaintiffand because, as explained in the next paragraph, defen-dants and their agents might be subject to personalliability, there is an incentive for defendants to seekprotection from the risk that the plaintiff has providedinaccurate information.

Further, pursuant to 42 U.S.C. §§ 1395y(b)(2)(B)(ii)and 42 C.F.R. 411.24(e) and (g), Medicare has a“direct right of action” against a primary plan, entity,insurer, physician or lawyer that received a primarypayment. This would include plaintiffs and defendantsas well as their respective lawyers or other agents. Inaddition, under 42 C.F.R. 411.24(c)(ii)(2), if Medicaretakes legal action, it “may recover twice the amount”from a recipient of the funds. See, e.g., United States v.Harris, (N.D. W.Va. March 26, 2009) 2009 WL 891931(“[Plaintiff’s lawyer] is individually liable for reimbursingMedicare in this case because the government can recover‘from any entity that has received payment from a pri-mary plan,’ including an attorney.”)8 Compare L.A. County Bar Formal Opn. 517 (2006)(“An attorney may agree to advance reasonable ex -penses of prosecuting or defending a client matter andwaiving the right to repayment by the client if there isno recovery. Similarly, at either the inception of therepresentation or during the course of litigation, anattorney may agree to indemnify the client for court-ordered costs if the client is not the prevailing party.”)(Emphasis added.)9 Subparagraph (b)(4), newly enacted effective Nov -ember 1, 2018, similarly permits a lawyer to pay thecosts to prosecute or defend a claim or action, “or ofotherwise protecting or promoting the interests of anindigent person* in a matter in which the lawyer rep-resents the client.” (Emphasis added.) For the samereasons cited with respect to subparagraph (b)(3), thisprovision is inapplicable here.10 Even if an agreement to indemnify a creditor of aclient could be deemed a “loan” to a client, it is notcertain that subparagraph (b)(2) is intended to permitsuch a loan. Few other jurisdictions have a provisionthat permits a lawyer to lend money to a client evenafter the lawyer has commenced representation. Thosethat do limit loans to clients whose ability to initi ateor maintain the matter for which the lawyer has beenretained would be adversely affected without suchfinancial aid, (see La. Rule 1.8(e)(4)(i)), or would otherwise be put under “substantial pressure” tosettle a case because of financial hardship and not onthe merits, (see Minn. Rule 1.8(e)(3); N.D. Rule1.8(e)(3).) Moreover, such loans are limited to theminimum sum necessary to meet the needs of theclient and the client’s dependents. Here, the indem-nification agreement is not intended to maintain anaction and avoid a settlement but is presented as aprerequisite to settlement.11 Cal. State Bar Formal Opn. 1988-101, decidedunder the former Rules, is not contrary. In that opinion,


•lease disputes •land use disputes

•partnership interest value •reorganization plan feasibility

•economic damages •fair compensation •property valuation •lost profits

Waronzof Associates, Incorporated 400 Continental Boulevard, Sixth Floor El Segundo, CA 90245

ASSOCIATES WARONZOF Timothy R. Lowe, MAI, CRE, FRICS

310.322.7744 T 424.285.5380 F [email protected]

www.waronzof.com

REAL ESTATE DISPUTE CONSULTING

the committee posited a set of facts where both clientand lawyer had acknowledged in writing a healthcare provider’s interest in being paid out of any recov-ery. However, when recovery was had, the clientdirected the lawyer not to pay any proceeds of therecovery to the provider but to pay them to the clientalone. That opinion advised that the lawyer’s bestcourse of action under these facts was to retain thedisputed amount in the lawyer’s trust account andcommence an action in interpleader. That opinionstated that “[u]ndertaking such obligations [i.e.,acknowledging the provider’s lien] to a third partyplaces the attorney in a potential conflict of interestunder California Rule of Professional Conduct 3-310(B) [now rule 1.7(b)]. Rule 4-210 [now rule 1.8.5],however, allows for this conflict of interest, but onlywhere there is full consent by the client.” The StateBar opinion is not in conflict with this Committee’sconclusion because, under the facts of that opinion,the lien amounts were known and the recovery fundsstill remained in the lawyer’s trust account, thus makingthe rule 4-210(A)(1) [now rule 1.8.5(b)(1)] exceptionapplicable. As noted, however, the indemnificationclause contemplates open-ended personal liability forthe lawyer regardless of the location of the recoveredfunds. Such an undertaking by a lawyer does not fitwithin the rule 1.8.5(b)(1) exception.12 Of the ethics opinions the Committee has reviewed,only two have not relied on their jurisdiction’s rule1.8.5 analogs, which are generally derived from ABAModel Rule 1.8(e). See N.C. State Bar Ethics Opn.RPC 228 (1996) and Vermont Advisory Ethics Opn.96-05. The latter opinion was issued when Vermontstill had lawyer conduct rules based on the ABA Codeof Professional Responsibility. That opinion relied onEC [Ethical Consideration] 5-1, which provided: “Theprofessional judgment of a lawyer should be exercised,

within the bounds of the law, solely for the benefit ofhis client and free of compromising influences andloyalties. Neither his personal interests, the interestsof other clients, nor the desires of third persons shouldbe permitted to dilute his loyalty to his client.” Theformer opinion from North Carolina confusingly citedonly “Rule 5.1(b) of the Rules of Professional Conduct”in support of its conclusion without further explanation.In the ABA Model Rules, rule 5.1 concerns the dutiesof managerial and supervisory lawyers. Although itmight be surmised that the drafter of the opinionintended to cite EC 5-1, similar to Vermont, NorthCarolina adopted the Model Rules in 1985.13 Rule 1.0.1(e) defines “informed consent” to mean“a person’s* agreement to a proposed course of conductafter the lawyer has communicated and explained (i)the relevant circumstances and (ii) the material risks,including any actual and reasonably* foreseeableadverse consequences of the proposed course of con-duct.” Rule 1.0.1(e-1) defines “informed written con-sent” to mean “that the disclosures and the consentrequired by [1.0.1(e)] must be in writing.*”14 Other jurisdictions are in accord that the contem-plated indemnification agreement creates an imper-missible conflict of interest. See, e.g., Alabama StateBar Ethics Opn. RO 2011-01; Alaska Bar AssociationEthics Opn. 2014-4; Arizona State Bar Ethics Opn.03-05; Delaware State Bar Association Committee onProfessional Ethics Opn. 2011-1; Florida Bar StaffOpn. 30310 (2011); Georgia State Bar Formal AdvisoryOpn. 13-2; Illinois State Bar Association AdvisoryOpn. 06-01; Indiana State Bar Association Legal EthicsOpn. 2005-1; Maine Ethics Opn. 204 (2011); MontanaState Bar Opn. 131224 (2013); Supreme Court ofOhio Opn. 2011-1; Oklahoma State Bar AssociationEthics Opn. No. 328 (2011); Oregon State Bar FormalOpn. 2015-190; South Carolina Ethics Advisory Opn.

08-07; Tennessee State Bar Formal Ethics Opn. No.2010-F-154; Utah Ethics Advisory Opn. 11-01;Vermont Bar Formal Ethics Opn. 2013-1; VirginiaLegal Ethics Opn. 1858 (2011); Washington State BarAssociation Advisory Opn. 1736 (1997); WisconsinFormal Opn. E-87-11 (1998). In addition, at least twolocal bar associations have reached the same conclusion.See New York City Bar Association Formal Opn.2010-3; Philadelphia Bar Association ProfessionalGuidance Committee Opn. 2011-6 (2012).15 This duty has been recognized in California caselaw. See, e.g., Beck v. Wecht (2002) 28 Cal.4th 289;Gafcon, Inc. v. Ponsor & Associates (2002) 98Cal.App.4th 1388; Saunders v. Weissburg & Aronson(1999) 74 Cal.App.4th 869.16 The Committee observes that this duty previouslywas implicitly recognized in the former Rules, whichrequired a lawyer to communicate to the client anyoffers of a proposed plea agreement in a criminalmatter and any written offers of settlement in a civilmatter. Former rule 3-510(A) (now rule 1.4.1(a)). Therequirements of that rule appear to have been intendedto provide the client with sufficient information sothat the client could make an informed decision aboutwhether to accept the settlement offer. This view wassupported by a California Supreme Court case thatheld: “[a]n attorney is not authorized . . . to ‘impairthe client’s substantial rights or the cause of actionitself,’” which include the decision to settle a matter.Blanton v. Womancare Inc. (1985) 38 Cal.3d 396[212 Cal.Rptr. 151] (“‘the law is well settled that anattorney must be specifically authorized to settle andcompromise a claim, that merely on the basis of hisemployment he has no implied or ostensible authorityto bind his client to a compromise settlement of pendinglitigation.’”)17 See note 5



I HAD MADE THE COMMUTE from Orange County to Los Angeles.Sitting in the bucket seat was comfortable—until it wasn’t.Movement is restricted while trapped in a moving vehicle andthat trek is longer than it used to be, closer to two hours thanone. From the parking garage, I walked to the office suite, foundmy desk, and plopped down to catch the first round of morninge-mails and memos. The next thing I knew, two hours had passed,and I had not moved an inch. My back ached, and I was irritated.

That was 10 years ago. Around that time, I had seen obesityexpert Dr. James Levine on a television newscast. He was show-casing his research on the perils of a seden-tary lifestyle. Dis gusted with his own 14-hour seated days, he had fashioned a reg ulartreadmill with a drafting desk, creating awalking workstation. The results, he said,were astonishing: he worked more effi-ciently while moving and when he arrivedhome at the end of his day, he was buzzingwith energy.1 I called out to the TV, “I needthat!”

I kept up with the story. It was not long before office furnituremaker Steelcase started manufacturing the prototype. I hesitated,however, to jump in and invest in that big contraption until I con-firmed my desire. Instead, I bought a treadmill off the floor at Big5 Sporting Goods and Googled making my own exercise space. Awooden shelf on top of the handles, a large-screen desktop com -puter, and I was set. Aside from a few upgrades as the industrykept pace, it is where I have been ever since. I am walking now.

Levine had been studying human movement and metabolism,concluding the U.S. obesity crisis was due, in large part, to ourcontinued progression of inactivity: our daily movement, outsideof scheduled exercise, has been dwindling so consistently overthe years that our calorie burn has dropped by upwards of 1500-2000. While his initial research was geared toward weight, whatLevine found, and subsequent studies conclude, is that thissedentary lifestyle wreaks havoc on our bodies in a host of otherways, including reduced brainpower.

How have we become sedentary? Thanks to technology, wecan skim the news, Skype with a friend, book our next vacation,and play music without so much as standing up. In the office, weno longer head to the library to review cases or down the hall todiscuss an issue with a colleague. All this can more easily be donewhile sitting online with Westlaw or Outlook e-mailing. Nearlyanywhere everything can now be done with a machine, a phone,and a finger touch—all while sitting.

Our bodies were not built to sit; the human body was meantto move as evidenced by the way it is structured. There are roughly360 joints and about 700 skeletal muscles that enable easy, fluidmotion, from running, jumping, and swimming to the simplefinger tap. Our blood depends on body movement to circulate

properly. Our nerve cells likewise benefit. Our skin is elastic,meaning it molds to our moves.2 Every part of our body is readyand waiting to move. So, what happens when we do not?

First, a common way of sitting is with a curved back andslumped shoulders, a position that puts uneven pressure on thespine.3 Over time, this causes wear and tear on the discs andoverworks certain ligaments and joints. It also puts strain onmuscles that stretch to accommodate the back’s curved position.This hunched shape also shrinks the chest cavity while you sit,meaning the lungs have less space to expand when you breath.

That is a problem because it temporarily limits oxygen that fillsthe lungs and filters into your blood, which segues right to brain-power. Your brain needs oxygen to remain alert. Without it, con-centration levels dip as brain activity slows. We can experiencenumbness and swelling. Around the skeleton are the muscles,nerves, arteries, and veins that form the body’s soft tissue layers.The very act of sitting squashes those delicate layers which limitsnerve signaling and causes numbness. The compression alsoreduces blood flow in your limbs causing them to swell.

If the lack of calorie burn was not enough, sitting for longperiods also temporarily deactivates a special enzyme in the wallsof blood capillaries that breaks down fats in the blood. Whenyou sit, you are not burning fat nearly as well as when you movearound. This means even more pudge.

Recent studies have found that extended sitting may have morelong-term effects: It is linked to some types of cancers, heart disease,and can contribute to diabetes, kidney, and liver problems.

What can we do? Move.4 If you are forced to a chair, get upevery hour. Set a timer. Put a portable treadmill under your desk.Buy a standing desk. Stand when typing. Stand when phoning.Have walking meetings. Just get up and move. n

1 JAMES A. LEVINE & SELENE YEAGER, MOVE A LITTLE, LOSE A LOT, (2009).2 Murat Dalkilinc, Why Sitting Is Bad for You, TED Talks (Feb. 16, 2019).3 Joe Leech, “Is Sitting Too Much Bad for Your Health?, Healthline (June 19,2019), https://www.healthline.com/nutrition/why-sitting-is-bad-for-you.4 Edward R. Laskowski, What are the risks of sitting too much?, MayoClinic.org. (May 8, 2018), https://www.mayoclinic.org/healthy-lifestyle/adult-health/expert-answers/sitting/faq-20058005.

closing argument BY LAUREL BRAUER

Sentenced to the Chair? The Risk of Sitting Too Much

Our bodies were not built to sit; the human body was meant to

move as evidenced by the way it is structured.

Laurel Brauer is a divorce lawyer and California certified family law specialistpracticing in Los Angeles and Orange counties.

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