Tag: Attorneys

Application of CRPC 1.15 to Government Lawyers

Posted by Sharif Faust on
Khodadad “Ko” Sharif, Esq.

by Khodadad “Ko” Sharif || 20 February 2024 ||

Does California Rules of Professional Conduct, Rule 1.15, entitled “Safekeeping Funds and Property of Clients and Other Persons,” govern government agencies that are holding funds for third parties in a civil forfeiture proceeding? More specifically, should cash received or held in civil forfeiture proceedings by the Office of the District Attorney be deposited in one or more identifiable bank accounts labeled “Trust Account?”

 

California law authorizes the forfeiture of “proceeds traceable to such an exchange” of an illegal controlled substance. Cal. Health & Safety Code § 11470(f). Cal. Health & Safety Code § 11470(f) provides that “the following are subject to forfeiture”:

All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance, all proceeds traceable to such an exchange, and all moneys, negotiable instruments, or securities used or intended to be used to facilitate any violation of Section 11351, 11351.5, 11352, 11355, 11359, 11360, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11382, or 11383 of this code, or Section 182 of the Penal Code, or a felony violation of Section 11366.8 of this code, or a felony violation insofar as the offense involves manufacture, sale, possession for sale, offer for sale, or offer to manufacture, or conspiracy to commit at least one of those offenses, if the exchange, violation, or other conduct which is the basis for the forfeiture occurred within five years of the seizure of the property, or the filing of a petition under this chapter, or the issuance of an order of forfeiture of the property, whichever comes first.

Although California law authorizes the forfeiture of “proceeds traceable to such an exchange” of an illegal controlled substance, tracing is required to prove that the source of funds or property that is forfeited is from illicit narcotics activity and not from a legitimate source. People v. $9,632.50, 64 Cal. App. 4th 163, 168-169 (1998). During the forfeiture proceedings and until a judicial order is entered and the case is disposed of, the government must maintain and preserve the funds.

California Health and Safety Code section 11469(h) states,“[u]nless otherwise provided by law, forfeiture proceeds shall be maintained in a separate fund or account subject to appropriate accounting controls and annual financial audits of all deposits and expenditures.” Although the traditional rule of statutory construction is not applicable to the CRPC rules, it is persuasive that “[a] traditional rule of statutory construction is that, absent express words to the contrary, governmental agencies are not included within the general words of a statute.” Wells v. One2One Learning Foundation, 39 Cal.4th 1164, 1192 (2006). We now must turn our attention to the language of the governing rule itself.

California Rules of Professional Conduct, Rule 1.15(a) states “[a]ll funds received or held by a lawyer or law firm for the benefit of a client, or other person to whom the lawyer owes a contractual, statutory, or other legal duty, including advances for fees, costs and expenses, shall be deposited in one or more identifiable bank accounts labeled ‘Trust Account’ or words of similar import, maintained in the State of California, or, with written consent of the client, in any other jurisdiction where there is a substantial relationship between the client or the client’s business and the other jurisdiction.” In reviewing CRPC, Rule 1.0.1. for word or phrase defined, we find that government lawyers are not excluded from CRPC Rule 1.15.  CRPC Rule 1.0.1(c), defines a lawyer or law firm as “”Firm” or “law firm” means a law partnership; a professional law corporation; a lawyer acting as a sole proprietorship; an association authorized to practice law; or lawyers employed in a legal services organization or in the legal department, division or office of a corporation, of a government organization, or of another organization.” Notably, this expansive definition includes, without exception, government lawyers.

It appears that government agencies, including the Office of the District Attorney, are governed by CRPC 1.15, and imposed upon them are the additional obligations of Health and Safety Code section 11469(i), which states: “[s]eizing agencies shall ensure that seized property is protected and its value preserved.” Further, “inherent in Health & Safety Code, § 11469‘s requirement that the value of property be ‘preserved’ is that seized currency be deposited into an interest bearing account, rather than languishing in cash and losing value over time.” People v. $12,601.33, 209 Cal. App.4th 121, 129 (2012).

Thus, not only must all forfeiture funds be maintained as mandated by Health & Safety Code section 11469, but necessarily must be maintained as required by the CPRC, Rule 1.15.

-This article was originally published for the San Diego County Bar Association Blawg. It has been reposted with their permission.

More Questions?

If you have questions , please check out the rest of our blog for more information.

The content of this blog is provided for informational purposes only, and we are not offering any legal opinions.  If you wish to consult with Sharif | Faust, please contact us to set up a consultation.This blog does not create an attorney-client relationship with Sharif | Faust. To retain Sharif | Faust, you must sign a written attorney-client agreement. Remember, the results in any case depend upon the specific facts in that case. It is important that you consult with a lawyer you trust. By reading this blog, you agree to our Terms of Use.

Federal Court or State Court : How Do You Know?

Posted by Sharif Faust on
Maria F. Zamora C., Esq.

by Maria F. Zamora C. || 07 February 2024 ||

The relationship between the various courts and their jurisdiction can be overwhelming. This includes federal, state, district, circuit, bankruptcy, and the United States Supreme Court. This post will help explain the difference between the jurisdiction of these various courts.  Prior to filing a complaint, it is important to know where you will file it. At Sharif | Faust Lawyers, we thoroughly analyze our Client’s claims in determining the appropriate court selection.  Although it may seem overwhelming, this post will provide insight into the differences between state court and federal court jurisdiction.

 

Federal Courts

state court and federal court in san diego

There are several different federal courts, including district courts, circuit courts, the Supreme Court of the United States, and bankruptcy courts. The main difference between federal and state courts is their jurisdiction, which is the authority the courts have to hear a case.

District courts serve as the federal trial courts. These courts have limited jurisdiction and can hear a case if (1) the case gives rise to a federal question involving the U.S. government, the U.S. Constitution, or other federal laws (such as trademark law, copyright & patent law) or (2) if the case involves diversity of citizenship, which are disputes between two parties of a different state or country and the claim(s) exceed $75,000.00.

 

Circuit courts are appellate courts and can hear a case once the lower court makes a final ruling. The circuit court’s job is to determine whether the lower court applied the law correctly. The circuit courts have three judges, there is no jury, and the evidence is limited to what was presented in the lower court. The appellate courts use different standards of review to determine a case. The appellate court standards of review will be discussed in a later blog post.

 

The last level of the federal courts is the U.S. Supreme Court, the highest court of the land. The U.S. Supreme Court hears certain cases, such as those between two or more states or cases involving ambassadors. This Court also has appellate jurisdiction, meaning the Court can hear almost any other case that involves a point of constitutional or federal law. After a party asks the Court to review its case, the U.S. Supreme Court has the discretion to decide whether or not to do so.

 

Lastly, bankruptcy courts are limited to hearing bankruptcy cases.

 

State Courts

State Court in San Diego

State courts, on the other hand, do not have as many limitations on hearing a case as federal courts do. In California State courts are also known as “superior courts” and include civil courts, family courts, criminal courts, and juvenile courts. There are also state appellate courts and state supreme courts. The authority of superior courts to hear a case depends on the personal jurisdiction of the party the claims are against and the subject-matter jurisdiction of the case. Finally, if a superior court can hear the case, we need to know in what venue to file the case.

Jurisdiction

The first requirement to sue someone in superior courts is to establish whether it has power over a person or a business (personal jurisdiction). For example, in the case of a citizen of the state of California suing a citizen of the state of Arizona, the state court may not have power over the person who lives in Arizona. In this example, the case may be heard by an Arizona court or potentially the federal court, as discussed above. For businesses, personal jurisdiction is generally where they do business.

 

The second requirement to sue someone in superior courts is to establish the authority of the court to hear the whole case (subject matter jurisdiction). There are three types of subject matter jurisdiction: (1) general jurisdiction, which allows the court to hear and decide cases unless a law or the constitution denies it; (2) limited jurisdiction, which restricts the cases the court can hear, such as a small claims court that can only hear cases with damages of $10,000 or less or limited civil courts that can only hear vases with damages for up to $25,0000; (3) exclusive jurisdiction which means only a particular court can decide a case.

The third requirement to bring a case in superior courts is to establish the proper venue, also known as the county where to file the case. Generally, the venue is appropriate in the county where (1) the person lives or does business or (2) where the dispute arose.

 

Just remember that each case is different, and the facts are important for figuring these out. We hope this blog post dismantled some of the preliminary questions regarding the difference between state court and federal court jurisdiction.

 

More Questions?

In future posts we’ll discuss this further. If you have questions beforehand though, please check out the rest of our blog for more information. The content of this blog is provided for informational purposes only, and we are not offering any legal opinions.  If you wish to consult with Sharif | Faust, please contact us to set up a consultation.  This blog does not create an attorney-client relationship with Sharif | Faust. To retain Sharif | Faust, you must sign a written attorney-client agreement. Remember, the results in any case depend upon the specific facts in that case. It is important that you consult with a lawyer you trust. By reading this blog, you agree to our Terms of Use.