Recent State Bar Opinion On Communicating With Represented Parties

I recently wrote about the issue of communicating with parties already represented by counsel. The State Bar issued an opinion on this issue recently. Basically, ‘consent’ under the ‘no contact rule’ of California Rules of Professional Conduct 2-100 may be implied by the facts and circumstances surrounding the communication with a represented party.

Click HERE to see the Formal Opinion.

Parties Already Represented by Counsel

If you have an attorney, other lawyers representing other parties in the matter are prohibited from speaking to you. They must first obtain consent from your attorney, who will necessarily ask you how you feel about it. If you are being sued and have an attorney, contact your attorney IMMEDIATELY should someone else try to speak to you about the matter. If you are on probation or charged with a crime the rule also applies.

The California State Bar Rules of Professional Conduct state in Rule 2-100:

(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.

(B) For purposes of this rule, a “party” includes:

(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or

(2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

(C) This rule shall not prohibit:

(1) Communications with a public officer, board, committee, or body; or

(2) Communications initiated by a party seeking advice or representation from an independent lawyer of the party’s choice; or

(3) Communications otherwise authorized by law.

Thus, under (C)(2), it is acceptable for a party (the person represented, not the lawyer) to speak to other counsel if they are seeking advice or representation from another lawyer. But it is NOT acceptable for other counsel to contact a party. If you have other questions about these matters, you may call my office at (916) 363-1211 or the CA State Bar ethics hotline at 800-238-4427, toll free from within California.

Click here to go to the State Bar Ethics page.

How to Seal Your Juvenile Record in California

If you have a sustained petition in juvenile delinquency court you may wish to have your “record sealed.” Under Welfare and Institutions Code Section 781 a person may petition the court to have their record sealed. This effectively erases your prior case and may be required for employment or to enlist in the United States military. If your juvenile record does not have any serious or violent sustained felonies you probably will be able to have it sealed.

Juveniles are not “found guilty.” As mentioned above, the correct terminology is “sustained” petitions or charges. Several different agencies may have records of them. A record seal will result in each of them receiving an order from the court directing them to “seal” the records. The judge will also declare, if the record seal is granted, that the charges for all intents and purposes “never happened.” Court records, sheriff, police, Department of Justice, and Probation Department records will all be sealed.

Once the records are sealed, a person may legally say that he/she has no prior juvenile sustained charges. (Juveniles don’t have convictions in any case- those only apply to criminal court proceedings and adults). Records are supposed to be destroyed within five years after they are sealed by court orders.

Some people are under the mistaken notion that records are automatically “sealed” or “dismissed” when the person turns 18. However, that is not what the law says. You must petition the court to seal your records.

If you are interested in having your record sealed, you may contact the Law Office of Mark S. Mayfield at (916) 363-1211 or click HERE.

How To Choose An Attorney: Some Considerations.

First the disclaimers: I am an attorney. I have spent hundreds if not thousands of hours in California Superior Courtrooms. Also, nothing in this article is meant to establish an attorney/client relationship or is intended as specific legal advice.

That out of the way, how should one go about selecting an attorney? I have had a couple of experiences over the past 15 years where I observed attorneys in court who did not appear to know what they were doing. And in one of those cases the client paid a very hefty retainer fee. Could this have been avoided? How exactly does one find a good attorney while under stress and time pressures? Let’s look at some options:

A. Lawyer Rating Sites: These can be helpful but many of them are little more than advertising. An attorney can upload a bunch of firm information and pay some money to be a ‘premium member’ and voila the firm is HIGHLY RECOMMENDED or something to that effect. Be careful with these: I have seen a very good attorney victimized by one unhappy client’s review on one well-known site. Not good. Recently I was victimized by a false review on both Yelp and Google+. Getting it removed will not be too difficult for me, but it definitely cost me some money. And while I’m discussing websites, you may wish to steer clear of attorneys whose websites are linked to online gambling sites, celebrity gossip sites or ‘naughty cheerleader’ sites. I’m serious.

Also watch out for Google or Bing ads or listings that contain glowing endorsements about how an attorney was the ‘greatest’ or the ‘best’ or that they ‘love’ him or her. Yes, they could be legitimate, but let’s be honest, most people don’t love their attorney and they usually want to forget the whole thing once it is over. In any case, multiple anonymous endorsements don’t mean a thing. (Note: I asked a couple of clients some time ago to consider posting reviews of me and one of them did write a very honest and positive account of my service to them on

B. Contact Your County Lawyer Referral Service. Often your local bar association will have lists of attorneys to recommend in various areas of law. This can be a good way to narrow down your search to attorneys who are actually experts in the field you need.

C. First-Hand Recommendations: Asking friends and associates and co-workers for direction is probably a good place to start. If they had a positive experience with a lawyer, even if in a different field of law, you may wish to contact that attorney for a referral. Asking around the courthouse where your case will be heard can also be helpful.

D. Yellow Pages: Yes it is paid advertising but it is a place to begin. Do some online searches using appropriate search terms and wade through the results.

After obtaining some names either online or from family/friends/co-workers/yellow pages, here are some questions to ask the attorney when you call or email them:

1. What is your experience in my area of concern? (extremely important)

2. Do you have any references?

3. What are the possible outcomes? Best and worst case.

4. What are the costs going to be? Flat rate or hourly? How do you determine them?

5. How long may this take to be over? Best and worst case.

6. How will you keep me informed?

7. What approach will you take? Aggressive or Compromising? Or something else?

8. Will you personally be working on my case? (very important)

9. Do you have any experience working IN THIS JURISDICTION? (important!– if the attorney knows the court personnel and/or Judges it may provide an advantage. Note that I stated ‘MAY’)

10. Lastly, watch out for questionable promises, guaranteed results, and threats (‘you better hire me or else’). These kind of statements are generally prohibited by state bars and indicate an unethical attorney. And trust me, peers and Judges probably know it.

These questions are a good place to start in selecting an attorney, no matter what your needs are. After getting answers you may wish to check up on them. At a minimum check the attorney’s state bar site entry (here’s mine) to see any discipline or issues that are public. You may wish to see if they are endorsed by the Better Business Bureau. Make sure you speak to the attorney in person or on the phone and verify they actually have an office.

Following the above suggestions will greatly help you in choosing an attorney, no matter what your legal issue is. NOTE: My website has a few ‘recommended law firms’ on the links page that I have found to be among the ‘best of the best.’


Good luck. You might need it.

Updated: July 2013.