Popular Threads - September 2020

Attorney-Client Privilege Issue

Friends - JDX is California. Consider these facts:

Client is wealthy. He has a personal Assistant (who basically ran the household staff), and has designated Assistant to serve as the primary interface between Client and Attorney. Client would regularly ask Assistant to obtain advice from attorney. Legal advice and opinions were regularly conveyed by Attorney to Assistant, to be given to Client for review.

Assistant gets fired, and likely has all of the Attorney email correspondence. Does Assistant's involvement as the intermediary between Attorney and Client destroy the attorney-client privilege?

Thoughts and opinions appreciated.

Yes, I believe it does destroy the privilege. Communication needs to be confidential to be privileged.

Matthew B. Kaplan, Virginia

Was the assistant necessary? If so, the privilege holds in California.

Jonathan Stein, California

Is there a Power of Attorney naming the assistant as the POA?

If no, then yes ACP is broken by the client giving the information to the assistant.

Erin M. Schmidt, Ohio

Not a CA lawyer, but, to Erin's point, Assistant was clearly acting as Client's agent irrespective of whether he or she was appointed as such under a POA.

Andrew C. McDannold, Florida

How is this different from a lawyer's secretary whose presence does not negate attorney - client privilege?

Joseph Hughes

Needs to be researched, but I would presume that the ACP is intact. This is not a "friend," but an employee and that may be the difference here.

I would certainly hope that the Client and PA have a confidentiality agreement in place. It would not be as strong as ACP, but offer some protection and demonstration of intent.

Phil A. Taylor, Massachusetts

California Evidence Code section 952 provides:

As used in this article, “confidential communication between client and lawyer” means information transmitted between a client and his or her lawyer in the course of that relationship and in confidence by a means which, so far as the client is aware, discloses the information to no third persons other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted, and includes a legal opinion formed and the advice given by the lawyer in the course of that relationship.

"discloses the information to no third persons *other than those who are present to further the interest of the client in the consultation or those to whom disclosure is reasonably necessary for the transmission of the information or the accomplishment of the purpose for which the lawyer is consulted" seems to speak to the circumstance of the personal assistant.

"[W]e construe section 952 to mean that attorney-client communications in the presence of, or disclosed to, clerks, secretaries, interpreters, physicians, spouses, parents, business associates, or joint clients, when made to further the interest of the client or when reasonably necessary for transmission or accomplishment of the purpose of the consultation, remain privileged. (San Francisco v. Superior Court (1951) 37 Cal. 2d 227, 234-237 [231 P.2d 26, 25 A.L.R.2d 1418]; Cooke v. Superior Court (1978) 83 Cal. App. 3d 582 [147 Cal. Rptr. 915];De Los Santos v. Superior Court (1980) 27 Cal. 3d 677 [166 Cal. Rptr. 172, 613 P.2d 233].)"

Insurance Co. of North America v. Superior Court (GAF Corp.) (1980) 108 Cal. App. 3d 758, 771.

L. Maxwell Taylor, Vermont

This sounds like a unique situation. I suggest you get an ethics opinion from your ethics committee.

Ed Burcham, Kentucky

I'm not sure it is all that unique. From what I can gather CA takes a fairly expansive view of what is " involvement of third persons to whom disclosure is reasonably necessary to further the purpose of the legal consultation preserves confidentiality of communication.'

See 66 Cal.Rptr.3d 833 (2007)

155 Cal.App.4th 1485

ZURICH AMERICAN INSURANCE CO., Petitioner, v.

The SUPERIOR COURT of Los Angeles County, Respondent; Watts Industries, Inc., Real Party in Interest.

and cases cited therein

And

46 Cal.App.4th 653 (2016)200 Cal.Rptr.3d 937

DP PHAM LLC, Cross-complainant, Cross-defendant, and Respondent, v. C. TUCKER CHEADLE, as Administrator, etc., Cross-defendant, Cross-complainant, and Appellant.

Particularly discussion of Galla, who was personal assistant of Cheadle

And bunches of other cases I'm not going to read in California.

Ronald Jones, Florida

I was thinking of it a bit differently in that without a POA (or a confidentiality agreement) there is nothing preventing the assistant from talking which is what I assumed the OP was talking about.

Erin M. Schmidt

A lawyers' secretary would be considered necessary as part of the attorney's staff and thus falls under the umbrella of "attorney". So, the secretary, even when leaving the attorney's employment still has the duty of the attorney and cannot talk.

But on the other side, the privilege is held by the client. The client can always talk, and there is nothing in the ACP that prevents someone, on the client's side, whom wouldn't break ACP by being present, from talking

Erin M. Schmidt

. . . .

The communication may retain its confidential character even though third persons are present:.

(2) *Evidence Code.* The Evidence Code states a much broader rule, embracing two kinds of third persons whose presence does not destroy the confidentiality of the communication:

(a) Those “to whom disclosure is reasonably necessary for the transmission of the information or for the accomplishment of the purpose for which the lawyer is consulted.” (Ev.C. 952 <https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000207&cite=CAEVS952&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>, supra, § 122 <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&pubNum=155587&cite=WITEVIDCHIXs122&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=NA&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>.)

This would cover not only a secretary or clerk, but also an expert consultant present to assist the lawyer in advising the client. (Law Rev. Com. Comment.)

(b) Those “who are present to further the interest of the client in the consultation.” (Ev.C. 952 <https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000207&cite=CAEVS952&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>.)

This would cover a spouse, parent, business associate, joint client, etc., or “another person and his attorney who may meet with the client and his attorney in regard to a matter of joint concern.” (Law Rev. Com. Comment.) (See 33 Pepperdine L. Rev. 677 <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0312526786&pubNum=0001222&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=LR&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>

[recommending amendment of rules of law student practice and attorney-client privilege to allow presence of law students, under supervision of licensed attorney, during confidential client communications]; 36 U.C.L.A. L. Rev. 151 <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=0102874269&pubNum=0003041&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=LR&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>

[applying attorney-client and work product privileges to allied party exchange of information]; 64 A.L.R.6th 655 <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2025212548&pubNum=0007185&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>

[communications made in presence of or solely to or by other attorneys, coparties, and their staff]; 66 A.L.R.6th 83 <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2025804459&pubNum=0007185&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>

[communications made in presence of or solely to or by nonattorney consultants, professionals, and similar contractors]; 67 A.L.R.6th 341 <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2025940508&pubNum=0007185&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>

[communications made in presence of or solely to or by family members or companion, confidant, or friend of attorneys or client or attesting witnesses for client's will]; on effect of disclosure to court-appointed psychotherapist, see infra, § 236 et seq. <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&pubNum=155587&cite=WITEVIDCHIXs236&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=NA&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>)

In Insurance Co. of North America v. Superior Court (1980) 108 C.A.3d 758, 166 C.R. 880 <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1980117829&pubNum=0000227&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>, communications were made at a meeting of representatives of a parent company and its wholly owned operating subsidiary. The issue was whether an officer or employee of a holding or affiliated company could receive confidential legal advice from counsel employed by a wholly owned subsidiary or affiliate. *Held,* the communications were privileged.

(a) “[W]e construe section 952 <https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000207&cite=CAEVS952&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)> to mean that attorney-client communications in the presence of, or disclosed to, clerks, secretaries, interpreters, physicians, spouses, parents, business associates, or joint clients, when made to further the interest of the client or when reasonably necessary for transmission or accomplishment of the purpose of the consultation, remain privileged.” (108 C.A.3d 771.)

(b) “As part of this general rule, we conclude that an officer or employee of a holding or affiliated company can receive legal advice from counsel employed by a wholly owned subsidiary or affiliate without destroying the confidentiality of the communication.” (108 C.A.3d 771.) (See Fireman's Fund Ins. Co. v. Superior Court (2011) 196 C.A.4th 1263, 1272, 127 C.R.3d

768 <https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=2025560966&pubNum=0007047&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>

[under Ev.C. 952 <https://1.next.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000207&cite=CAEVS952&originatingDoc=If8b83be16a9011dbbac4ed214c54085a&refType=LQ&originationContext=document&transitionType=DocumentItem&contextData=(sc.Category)>, privilege is not limited to communications directly between client and his or her attorney, but also applies to communications among various attorneys representing same client; thus, privilege precluded client's attorney from disclosing communications attorney had with her partner about client's case].)

Roger Rosen, California

Ethical Implications of Texting

I confess to being averse to texting, and I try to avoid it. Unfortunately, since COVID and working from home, I have used my cell a lot to return calls. Once some people have your cell number, they feel free to text frequently.

Having just gotten used to email niceties, what are the ethical implications of texting? How do you keep track of texts, especially within the context of a case management system? Curmudgeons need to know.

I do not prefer to text with clients, mostly because I retain all email in my practice management software. I tend to forward a text to myself as email and then respond to the client via email.

Deborah Matthews, Virginia

YMMV, but for me it's just way too much work to keep track of texts. If you're running a high-volume practice (personal injury, bankruptcy, etc.) it's probably a great idea to accept texts, but for lower volume practices I think the drawbacks outweigh the benefits. I have certain clients that do have my personal cell number, but these are either my repeat clients I have an ongoing relationship with or one-off clients who have "proven" themselves to me that they're not maniacs who will text me 100 times a night. I think the best practice here is to either.

1. Politely tell the client that you due to volume and professional ethics considerations you do not respond to texts and to please call or e-mail with non-urgent matters or 2. Always send a follow-up e-mail or letter memorializing what was discussed in the text conversation so no accusations can be levied against you later about something that was allegedly said or not said (wow, possibly the most lawyer-ish sentence I've ever typed).

Bryce James Davis, Florida

I am with Deb. I do not give out my cell phone number but in those cases where I occasionally have to return a call with my cell, I follow her practice. I tell me clients that I do not accept text messages and they must use email if they want to communicate with me, or else it will be by snail mail and things will move more slowly. Everyone always comes up with an email address.

Ed Burcham, Kentucky

A few years ago, I got a phone call late at night from a person I did not know, from an area code far far away, seeking legal advice. I asked him how he got this number and he hung up. The next day I got a text message from him with a legal question. I put two and two together and realized he got my number from Avvo. I also knew instantly that this was a person who felt ordinary rules applicable to professional consultations did not apply to him. Who calls a professional at 11 pm? Who texts a professional as his initial contact?

I got a text a few days ago that said, "L. Max, I just wanted to check in on you." It was from a Texas area code and was unsigned. I am sure it was not from my sister-in-law who just moved there, uses her California-area-code cell phone and doesn't call me "L. Max." I don't know anyone else in Texas. I think it was random, of a piece with phishing. I just deleted it.

So, I do very little texting. And only with people I know. (Except texting is apparently necessary to communicate with physicians' offices in the COVID-19 era--they tell you to wait in your car and text you when it's time to come in.)

L. Maxwell Taylor, Vermont

I'm not aware of any ethical implications unique to texts as compared to emails.

Eugene Lee, California

He is a New Hampshire Ethics Committee opinion re: text messages, might be a good starting point for you Kevin.

https://www.nhbar.org/resources/ethics/ethics-corner-practical-ethics-articles/2015-12

The Ethics of Texting: Preserving Client Files - NHBA<https://www.nhbar.org/resources/ethics/ethics-corner-practical-ethics-articles/2015-12>

The Ethics Committee provides general guidance on the NH Rules of Professional Conduct with regard to a lawyer’s own prospective conduct. New Hampshire lawyers may contact the Ethics Committee for confidential and informal guidance by emailing Robin E. Knippers.Brief ethics commentaries based upon member inquiries and suggestions will be published monthly in the NH Bar News. www.nhbar.org

William E. Denver, New Jersey

I hate texting, so if a client starts thinking they get to text me whenever they want, I tell them they are getting billed. My solution to this is to not give out my cell phone number. There are so many phone services out there too code from that key you call from a different number than your cell number (I don't need to use them as I am able to call from the relevant office phone). For the rare person that is so impoverished they can't afford internet or a smart phone, I have them text my google phone number which makes it easier to track and gets emailed to me.

Lesley Hoenig, Michigan

Interesting. But I think the concerns are mostly solved if lawyers do the following:

1. use a text service that backs up texts (like mysms or apple messages) 2. store texts in your practice management system if you have one (my practice management system stores client texts)

A good percentage of my clients prefer text communication. I don't see that client texts are any more extraneous than the emails they send me. To me, client texts are just like client emails. When I need to reach a client, I often use both text and email to head off any excuse that they didn't get my message (which I used to get a lot, now I literally never do). I use a service that converts emails to texts, so to send a text, i just add a cc in my outgoing email.

Eugene Lee

Gene is right. Not surprisingly. This is the problem with the legal profession summed up in a nice, neat bow. Lawyers, especially older lawyers, are so scared of new things that we keep doing the same thing over and over and then we wonder why there is no real progress in the legal profession.

My dad had this hanging in his office. He obtained it from Jim Burke. It now hangs in my office and I read it daily:

Man is so constituted as to see what is wrong with a new thing.... NOT WHAT IS RIGHT. To verify this, you have but to submit a new idea to a committee.

They will obliterate ninety per cent of rightness for the sake of ten per cent of wrongness. The possibilities a new idea opens up are not visualized because not one man in a thousand has imagination!

--- Charles Kettering

Jonathan Stein, California

I use texting with my clients. I have many younger clients who prefer to text. Since I can draft my texts directly from my MacBook, it isn’t any different than writing an e-mail. No one has abused their texting so I continue to allow it. I save my text messages just as I save e-mail.

Christine J. Kuntz, Pennsylvania

As an older guy (60) I dislike texting for professional messaging, but it is inevitable*. That being said, using something like Pushbullet (or Google Messaging's web interface) allows you to text and respond from your computer, which (for those of us most comfortable with QWERTY) makes things a lot more natural, and makes copying and saving messages a lot easier.

* Which brings up something I've thought about for some time: it's interesting how, what with all our advances in portability and Internet access, communication has become *way, way* more complicated than it used to be. Many people do not bother to check their voice messages. 

Some people are devoted to Facebook Messenger. Others Twitter. Others straight texting. Some people never bother to check their e-mail. Lots of luck getting someone to sign for certified mail. WhatsApp. Snapchat. 

Instagram. What with all our options, it can be really, really difficult to keep track of how a particular person prefers to communicate.

Michael A. Koenecke, Texas

Jonathan -

That's a great quote, and so true! I added it to my Quotes notebook in OneNote.

Caroline A. Edwards, Pennsylvania

Most of my clients are businesses in tech or communications. I have numerous clients that use texting, most often to co-ordinate calls or meetings or ask a quick (almost always non-legal) question. At first, it was mostly younger clients, but I've noticed in the last year a dramatic increase in texting by older clients. No one has abused the texting privilege. Rarely do I use texting to communicate legal advice. If I do, I generally follow up with an email. 

Mark Del Bianco

My VOIP number accepts phone, text and faxes, and keeps track of all communication by client's number.

Nicholas I. Fuerst, Arizona

I put in my fee agreements: "No texting except to give notice regarding being late for or cancelling appointments."

Roger Rosen, California

Shedding a Dead Weight Client

I'm wondering what language you use to politely decline to work with someone again. I'm talking about an instance when an obnoxious client from the past contacts you again for new engagement. I'm not talking about where you are actively representing someone. Obviously, breaking up is hard to do. This is a person I truly don't want to even leave the possibility of working with again. At the same time, I don't want a bad review online simply due to hurt feelings. I was never good at the psychology of these things.

Dear Andrew:

I hope all is well. At this time, I am not in a position to take on your new matter. I would recommend you call Tom, Dick or Harry. Tom can be reached at 209-867-5309. Harry can be reached at 209-555-1212. Dick can be reached at 209-976-3425. I wish you the best.

Sincerely,

Juan, the nice guy

Jonathan Stein, California

You simply let the client know you are not accepting the kind of case he is asking you about at the present. 

Robert "Robby" W. Hughes, Jr., Georgia

Jonathan's answer is good, but in the relatively few instances where I have been in this situation, I have simply told the former client that I don't think our personalities mesh very well and that the client would be better served by a different kind of attorney.

There have been times during initial consultations when I have told the prospective client that I am neither a telephone screamer nor the kind of attorney who acts like a pushy jerk, and that if the client is looking to be represented in that manner, that I would not be a good choice. Some clients have said that they were fine with my personality and other have actually thanked me but said that they were looking for "aggressive" representation and went with someone else. In those cases, I think it worked out better for both of us.My question to Jonathan is when you suggest Tom, Dick, or Harry, are these attorneys you admire or are they the kind of attorneys on whom you wish the worst clients (just kidding, ... sort of).

Bert P. Krages II, Oregon

"Thanks for thinking of me, but upon reflection I realize I'm not the right lawyer for you. I recommend you call A, B, or C, all of whom handle (type of case). I wish you the best." This eliminates ambiguity and doesn't invite discussion, and it shows you've thought about it.

Marilou Auer, a retired legal clerk/secretary, Virginia

It really is more fun when you give A, B and C names and phone numbers!

Jonathan Stein

I would not pass this client on to other lawyers unless I wanted to harm them.

Roger Rosen, California

Thanks, all. I typically just give the number to the state bar lawyer referral service unless it truly is a good potential client. In that case, I do try to refer out. For clarification, I'm willing to take greater annoyance if bills are paid promptly and without arguments. In this instance, the former client and I got into a fee dispute which I resolved "in a good faith effort to resolve." I was quite shocked when they contacted me again based upon how obnoxious and argumentative they were just months ago.

Ryan Young

I'd send ridiculous cases to a friend of mine as a joke - all for laughs.

(My best referral was a man who wanted to claim false imprisonment because he got lost in IKEA)

I think it is simply, " I'd love to, but, (1) Current work schedule; but do not despair (2) here is a place I can direct you to [whether Bar Referral or someone willing to put up with them].

Saying "NO" is one of the best business decisions you can make. You don't owe then a "why" on you are telling them "NO"

Drew Winghart, California

Should Latin Phrases be Italicized?

e.g. "res judicata" etc.?

That's what I do. Not everyone does it, but I prefer it and I think it reads better.

Max Taylor, Vermont

That's what I learned.

Amy A. Breyer, California

From Lawprose.org:

LawProse Lesson #215: How do you decide which Latin phrases to italicize?

How do you decide which Latin phrases to italicize and which ones to keep in roman type?

The answer depends on how thoroughly naturalized the word, abbreviation, or phrase has become in English. If the term has become so commonplace in English that it is said to be “anglicized,” it stays in roman type; if it’s persistently considered a foreignism, it should be in italics.

If that sounds like a fuzzy “rule,” you’re right. Consider that in the best style, the abbreviations “e.g.” (exempli gratia) and “i.e.” (id est) are set in roman even though the full terms are italicized. Here are a few more examples:

Italicized

  • a vinculo matrimonii
  • caveat emptor
  • de minimis
  • duces tecum
  • ejusdem generis
  • in loco parentis
  • in pari materia
  • inter alia
  • non compos mentis
  • sensu stricto

Not italicized

  • certiorari
  • de facto
  • en banc
  • habeas corpus
  • mens rea
  • nunc pro tunc
  • prima facie
  • res judicata
  • stare decisis
  • sua sponte

Russ Goldman, New Jersey

My tendency is to do so with (almost) all Latin words/phrases, but some dictionaries and style guides say that italicization is not needed if the phrase (or abbreviation) has become “familiar.” Examples of terms that are often described as “familiar” are things such as “etc.,” “R.I.P.,” “e.g.,” and “i.e.” If you’re devoted to a particular style guide (such as the AP Style Guide, or the Chicago Manual of Style), I’d advise you to consult it. Otherwise, I think you are allowed to create your own personal style, and do whatever the heck you think is best.

Brian H. Cole, California

Isn't there guidance on this issue from the "Blue Book"?

(Mine is in the shed!)

Clayton T. Robertson, California

Thanks to all who responded! I am going to italicize it. Indeed, the Blue book is important, but I am so cheap! It's $39. Sheesh! But as pointed out, the blue book does state some Latin phrases shouldn't be italicized. I think though that they are referring to e.g. and i.e. That makes sense that those aren't italicized because they are common English usage. But "res judicata" is not a common English language usage - it's a specific legal doctrine. So I am going to italicize it. Don't think the judge will care that much, but I also think it looks nicer. 

Sterling L. DeRamus, Alabama

I look up previous decisions by the assigned judge and see how they do it. 

Matthew J. Norris, California

OF COURSE Latin phrases should be italicized.

They're FROM Italy, after all.

Russ Carmichael,. Pennsylvania

According to the Oregon Appellate Style Manual, the following kinds of foreign words and phrases are commonly used in legal writing and are not italicized:

  • ad hoc
  • etc.
  • pro tempore
  • ad hominem
  • habeas corpus
  • quid pro quo
  • ad valorem
  • mandamus
  • remittitur
  • de facto
  • per curiam
  • subpoena
  • en banc
  • pro rata
  • vice versa

The stylebook maintains that less common foreign words should be italicized, including the following:

  • a priori
  • quantum meruit
  • ab initio
  • id.
  • ad litem
  • in camera
  • amicus curiae
  • in limine
  • res ipsa loquitur
  • in re
  • res judicata
  • certiorari
  • respondeat superior
  • scienter
  • de novo
  • dictum
  • stare decisis
  • ex parte
  • ex post facto (but Ex Post Facto Clause is not italicized)

It states that “e.g.,” and “i.e.,” are to be italicized.

The Style Manual is not controlling outside the Oregon Appellate Courts and the courts don't freak out if you depart from it in practice. 

Nonetheless, it is a great read if you have the proper degree of neuroticism. It can be downloaded here <https://www.courts.oregon.gov/publications/Pages/default.aspx> for free.

Bert Krages, Oregon

Yes. 

Michael J. Sweeney, Connecticut

§ 5-000. UNDERLINING AND ITALICS

When briefs and memoranda were prepared on typewriters, emphasized text was underlined. While older citation reference works may still call for underlining, that format has largely been replaced by the use of italics, made possible by word-processing software and modern printers.

§ 5-100. In Citations

The following citation elements should be italicized:

  • case names (including procedural phrases)
  • book titles
  • titles of journal articles
  • introductory signals used in citation sentences or clauses
  • prior or subsequent history explanatory phrases
  • words or phrases attributing one cited authority to another source
  • the cross reference words: “id.,” “supra,” and “infra”

If underlining is used instead of italics it should continue under successive words that are part of the same phrase but break between items.

When “e.g.” appears with another signal the two together are treated as a single item. Punctuation that is part of any of the above elements is italicized along with it, but punctuation that separates that element from other parts of the citation should not be.

§ 5-200. In Text

The following words or phrases should be italicized when they appear in the text of a brief or legal memorandum:

  • references to titles or case names in the text without full citation (even those which would, in full citation, not be italicized)
  • foreign words that have not been assimilated into lawyer jargon
  • quoted words that were italicized in the original
  • emphasized words

§ 5-300. Citation Items Not Italicized

The following citation types or elements should not be italicized:

  • constitutions
  • statutes
  • restatements
  • names of reporters and services
  • names of journals
  • rules
  • regulations
  • other administrative materials

Indeed, all items for which italics is not specified should appear without it.

Roger Rosen, California

Green v. State of California, 42 Cal. 4th 254, 260, 165 P.3d 118, 121, 64 Cal. Rptr. 3d 390, 393 (2007).*

(Green v. State of California (2007) 42 Cal.4th 254, 260.)**

Green v. State of California, 165 P.3d 118, 121 (Cal. 2007).

Coal. of Concerned Cmtys., Inc. v. City of Los Angeles, 34 Cal. 4th 733, 101 P.3d 563, 21 Cal. Rptr. 3d 676 (2005).*

Coal. of Concerned Cmtys., Inc. v. City of Los Angeles, 101 P.3d 563 (Cal. 2005).

Cal. Educ. Facilities Auth. v. Priest, 12 Cal. 3d 593, 526 P.2d 513, 116 Cal. Rptr. 361 (1974).*

Cal. Educ. Facilities Auth. v. Priest, 526 P.2d 513 (Cal. 1974).

Sakotas v. Workers' Comp. Appeals Bd., 80 Cal. App. 4th 262, 95 Cal. Rptr. 2d 153 (2000).*

Sakotas v. Workers' Comp. Appeals Bd., 95 Cal. Rptr. 2d 153 (Ct. App. 2000).

Salinas v. Atchison, Topeka & Santa Fe Ry. Co., 5 Cal. App. 4th 1, 6 Cal. Rptr. 2d 446 (1992).*

Salinas v. Atchison, Topeka & Santa Fe Ry. Co., 6 Cal. Rptr. 2d 446 (Ct. App. 1992).

Roger Rosen

Brown v. Helvering, 291 U.S. 193, 203 (1934).

John Doe Agency v. John Doe Corp., 493 U.S. 146, 159-60 (1934) (Stevens, J., dissenting).

N.C. Bd. of Dental Exam'rs v. FTC, 134 S. Ct. 1491, 188 L. Ed. 2d 375 (2014).

Cammisano v. U.S. Senate Permanent Subcomm. on Investigations, 454 U.S. 1084 (1981).

Office of Pers. Mgmt. v. Richmond, 496 U.S. 414 (1990). Courts of Appeals

Little v. Shell Expl. & Prod. Co., 690 F.3d 282 (5th Cir. 2012).

Shames v. Cal. Travel & Tourism Op. Comm'n, 607 F.3d 611 (9th Cir. 2010).

Symantec Corp. v. Comput. Assocs. Int'l, Inc., 522 F.3d 1279 (Fed. Cir. 2008).

Antonov v. Cnty. of Los Angeles Dep't of Pub. Soc. Servs., 103 F.3d 137 (9th Cir. 1996).

Chatchka v. Soc'y for Concerned Citizens Interested in Equal., 69 F.3d 666 (5th Cir. 1996).

Comm. to Prevent Mun. Bankr. v. Renne, 77 F.3d 488 (9th Cir. 1996).

Cong. Fin. v. Commercial Tech., Inc., 74 F.3d 1253 (11th Cir. 1995).

Shoemaker v. Accreditation Council for Graduate Med. Educ., 87 F.3d 1322 (9th Cir. 1996).

Natural Res. Def. Council v. NRC, 216 F.3d 1180 (D.C. Cir. 2000).

Wilson v. Mar. Overseas Corp., 150 F.3d 1 (1st Cir. 1998).

Phillips Exeter Acad. v. Howard Phillips Fund, Inc., 196 F.3d 284 (1st Cir. 1999).

Grace Bible Fellowship, Inc. v. Me. Sch. Admin. Dist. No. 5, 941 F.2d 45 (1st Cir. 1991).

A.B.C. Bus Lines v. Urban Mass Transp. Admin., 831 F.2d 360 (1st Cir. 1987).

Orange County Agric. Soc'y, Inc. v. Comm'r, 893 F.2d 529 (2d Cir. 1990).

Shiau v. U.S. Dep't of Agric., 895 F.2d 1410 (2d Cir. 1989).

S'holders v. Sound Radio, 109 F.3d 873 (3d Cir. 1997).

Barry v. Bergen County Prob. Dep't, 128 F.3d 152 (3d Cir. 1997).

Tillman v. Lebanon County Corr. Facility, 221 F.3d 410 (3d Cir. 2000).

Johnstone v. N. Am. Van Lines, 958 F.2d 363 (3d Cir. 1992).

Opticians Ass'n of Am. v. Indep. Opticians of Am., 920 F.2d 187 (3d Cir. 1990).

Little Princess Assocs. v. Passgo, Inc., 922 F.2d 832 (3d Cir. 1990). Roger Rosen

Engenium Sols., Inc. v. Symphonic Techs., Inc., 924 F. Supp. 2d 757 (S.D. Tex. 2013).

Walker Dig., LLC v. Facebook, Inc., 852 F. Supp. 2d 559 (D. Del. 2012).

Hollander v. Inst. for Research on Women & Gend. at Columbia Univ., No. 08 Civ. 7286 (LAK) (KNF), 2009 U.S. Dist. LEXIS 34942 (S.D.N.Y. Apr. 15, 2009).

Huangyan Imp. & Exp. Corp. v. Nature's Farm Prods., No. 99 Civ. 9404 (SHS), 2000 U.S. Dist. LEXIS 12335 (S.D.N.Y. Aug. 25, 2000).

Inv'rs Capital Corp. v. Brown, 125 F. Supp. 2d 1346 (M.D. Fla. 2000).

Villar v. Crowley Mar. Corp., 780 F. Supp. 1467 (S.D. Tex. 1992).

Diaz v. Antilles Conversion & Exp., Inc. , 62 F. Supp. 2d 463 (D.P.R. 1999).

Glen Holly Entm't, Inc. v. Tektronix, Inc., 100 F. Supp. 2d 1073 (C.D. Cal. 1999).

Perlman v. Swiss Bank Corp. Comprehensive Disability Prot. Plan, 979 F. Supp. 726 (N.D. Ill. 1997).

Natural Res. Def. Council v. Fox, 93 F. Supp. 2d 531 (S.D.N.Y. 2000).

Chatoff v. West Publ'g Co., 948 F. Supp. 176 (E.D.N.Y. 1996).

Haghighi v. Russian-American Broad. Co., 945 F. Supp. 1233 (D. Minn. 1996).

Roger Rosen

I read this as a space between F. and Supp. and also between Supp. and 2d.

Roger Rosen

Back in law school (University of Texas, 1981 - 1984), that was a nice thing about having a Selectric: I could switch out the ball and use actual italics when citing cases.

Michael A. Koenecke, Texas

Zoom Dress

When you have court via Zoom, how do you dress? I go with a sport coat, dress shirt, and a tie. I wear jeans and comfortable shoes. However, today, I saw guys in polos, short sleeve button shirts, and one guy who seemed to be in a t-shirt. (Maybe it had a collar.)

But, how do you dress for Zoom via court?

Dress blouse. 

Over shorts and flip flops. I keep the shirt hanging in my office.

Micah G. Guilfoil Payne, Kentucky

I would dress as if in court. I won't be the one the judge hollers at for lack of decorum, thank you very much.

Robert Thomas Hayes Link, California

I wear a shirt and tie but I cleared that with our judges. I also wear shorts and tennis shoes.

Attorney Dennis Riley, Illinois

Shirt, tie, and jacket or suit coat.

Doesn't matter what is on the bottom.

Would not appear otherwise, even if I know the Judge well.

Joseph A. DeWoskin, Kansas

Totally court appropriate from the waist up. Usually a blouse and jacket, earrings etc., but also jeans or shorts. I'm high risk and working from home, so only my dog and husband see the shorts or jeans.

Suzanne L. Hawkins, South Carolina

Full suit. I dress for court every day. You never know when you will have an emergency hearing around here or when a client may stop by.

Besides that is what I would expect of my attorney if I paid them 400 or 500 an hour. If an attorney cannot put on a suit and look good -- how are they going to make my case look good. 

Rinky S. Parwani, Florida

I've been keeping a dress shirt and tie in the office for hearings. From the waist down it's been shorts and sneakers throughout this hot summer.

I've worn a suit for every court appearance in my life but not wearing a jacket has been my pandemic concession.

John Leonard

Dress for ZOOM like you dress for court. 

Robert "Robby" W. Hughes, Jr., Georgia

Court on the top

Party on the bottom

Deborah L. Reece

One of the judges put "business casual" as the dress code for his Zoom hearings. Thank you judge for being clear!

I typically wear a boring shirt, with a jacket, and a comfy but monocolored skirt.

The weird thing is I felt the need to dress up for my status conference hearing yesterday, that was held via phone. It's not like the judge would suddenly say "counsel, I'm having a hard time hearing you, let's switch to Zoom" but just in case I didn't want to be wearing a graphic tee and shorts.

Corrine Bielejeski, California

The same as I do if I'm going in person, but I might cheat a little on the bottom half, like you.

Ed Burcham

Anything formal -- such as a deposition -- From the waist up I will be dressed professionally. Shirt, tie, and sometimes a coat. From the waist down, shorts, flip-flops, etc.

True story - I was being deposed as an expert witness not long ago. Wearing a shirt and tie, with shorts. I called for a break to get a glass of water, and before I realized I had forgotten to turn-off my camera, I stood up and left...shorts and all. Fortunately, I think everyone else was otherwise occupied and didn't notice. When I came back in, while still out of camera range, I clicked-off the camera.

Scott I. Barer, California

Shirt and tie with a jacket for me and one thing I learned is to do a test run to see how they look onscreen. The first one I did, the pattern on my shirt looked weird and was very distracting whenever I moved. The second one I did, I had a similar issue with my tie. So I've reverted to very plain blue or white shirts with very basic ties so they aren't distracting.

Andrew M. Ayers

Zoom Court and "real" court get the same dress from the camera view up. My camera is mostly neck and shoulders. Shirt, tie, jacket for court.

Depositions, meetings, etc. it varies based on who is present, how well we know each other. Business casual to tie and jacket.

Phil A. Taylor, Massachusetts

I have appeared in front of judges during the pandemic, even though I do not litigate as much. So for the sake of the camera, absolutely shirt (tucked in and professional), tie and jacket. No polos. You're in front of the Judge, you have to show the same respect to Court as you would in-person. With that said, what the Court did not see were my pajama pants and socks with house slippers. Because if I am going to be sitting down while possibly screaming at my adversary (had to do that once at a very silly person), I might as well be comfortable. It's like a business attire version of a mullet. Business on the top, party on the bottom. I pretend it's the 80's, and it works.

Vlad Portnoy, New York

Funny story-not mine.

Lawyer had a Zoom hearing. She wore a sports bra and blazer and assumed none the wiser. However, she stood up at one point and her whole midriff was showing!

True story-not funny.

I had a super important Zoom hearing. I received three notices for the hearing from the court. One said "corrected." I put it in my calendar for noon.

Worked out and was eating breakfast. I got a call from my client, who was ballistic! Where are you? The hearing started at ten (it was 10:03)! The judge is going to default you if you aren't on in two minutes. I was in gym clothes.

I ran up to my office, grabbing a jacket on the way. I looked like a mess, but no one could see my gym top. I was so out of breath I could barely talk.

The hearing went fine. I still don't have a decision on my motion.

Nightmare!

Andrea Goldman, Massachusetts

I dress just like I would if I were going to court, although I sometimes do not wear shoes. Of course, I sometimes do not wear shoes in my office, so it is pretty much one in the same. :) I do my best to remain professional.

Frank Kautz, Massachusetts

Our local judiciary have been very clear. Dress as if you were making a live appearance in court. Trial or hearings here get the normal suit. 

After more than thirty years of wearing suits every day, I went to casual dress in the office when not having a hearing or trial. Most days I don't have appointments, so I could wear shorts and flops for all it matters (not that I would).

Darrell G. Stewart, Texas

I really want to do my next zoom hearing wearing this tuxedo Tshirt:

https://centarsko.com/shop/tuxedo-t-shirt/

I'm betting the judge won't be able to tell through my webcam

Eugene Lee, California

The same I would dress if I physically had to be in court

Lesley A. Hoenig, Michigan

I have one of these:

https://www.pinterest.com/pin/82331499417821654/

Believe me, you can tell. :) I often wear it to Masonic meetings via Zoom.

Frank Kautz

I miss you Frank!

Andrea Goldman

I just attended a CLE via Zoom that had the presiding judges from two adjoining counties and states (Oregon and Washington) and both judges told several stories about the lack of professional attire by some lawyers on Zoom appearances, and noted that some judges had started admonishing, leading up to sanctions and fines, because of the lack of professionalism.

Both judges said formal attire is still required at all times, including ties, and that remote appearances don't alter the rules, and that those rules will be enforced.

Jeremy T Vermilyea, Washington

Dress shirt, tie, jacket. Clean shaven (except for my mustache and goatee).

Gym shorts.

Other attorneys in my hearings have appeared in golf shirt or appreciate with dress shirts. Judges haven't said anything, but there is written guidance that Florida judges expect us to appear on camera dressed as if we were on chambers.

Barry Kaufman, Florida