Volume 15, No. 22 | October 25, 2016

eye on ethics

Q: I charge only nonrefundable flat fees in my criminal defense practice. Do I need to put any special language in my fee agreement?

A: Yes. Per ER 1.5(d)(3), if you designate your fee as "earned upon receipt," "nonrefundable," or similar terms, you must simultaneously advise the client in writing that the client may discharge you at any time, and in that event may be entitled to a refund of all or part of the fee based upon the value of the representation.

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member news

Roger Ferland to Be Honored for Lifetime Service: Attorney Roger Ferland will be inducted into the Arizona Veterans Hall of Fame on October 28. The induction ceremony recognizes and honors Arizona veterans who have honorably served their country through military service and who have continued to serve and inspire their fellow citizens with deeds and accomplishments throughout their lifetime.  Roger served in the U.S. Army in Vietnam in 1968, where he sustained major injuries. Despite his injuries, he went on to graduate with distinction from Duke University Law School in 1974,  retiring from Quarles & Brady as a distinguished environmental law attorney in 2014. An active member of Disabled American Veterans, Ferland worked tirelessly with DAV leaders to establish free legal clinics for veterans in 2013 by signing up 200 attorneys to work veterans' legal issues pro bono, and scheduling the clinics. Ferland's additional community service includes more than 1,000 hours volunteering with the Phoenix Symphony, Audubon Arizona, and the U.S. VETS Phoenix Advisory Board.

In the news

Former PA Attorney General Kathleen Kane Gets Prison Term: A judge sentenced former Pennsylvania Attorney General Kathleen Kane on Monday to 10 to 23 months in prison for committing multiple felonies stemming from a politically motivated act of retribution. More.

No 9th Justice, No Problem, Says Justice Stephen Breyer: Despite missing a ninth member for more than eight months now, Supreme Court Justice Stephen Breyer expressed confidence Monday the high court would function properly if thrown into the crucible of presidential politics. More.

from the bar

You Be the Judge and Finish the Ballot! Do you know how to vote on judges? During this election cycle, you will be asked to do just that--whether to retain or not retain trial and appellate judges. The Judicial Performance Review Commission conducted evaluations, asked for public input, and produced a report to help voters decide. Click here to view a quick video that will help you understand the process and the importance of voting for judges and finishing the ballot. Share it with family, friends, and colleagues!

Get Involved in the Merit Selection Process: Apply by Friday, November 11 to serve on one of the four judicial nominating commissions. The Commissions screen judicial applicants and submit nominations to the Governor for his ultimate appointment to fill positions on the appellate court bench and on superior court benches in three counties. For candidate criteria and an application click here.

Judicial Nominees for Maricopa County Superior Court Announced: The Maricopa County Commission on Trial Court Appointments has recommended eight candidates to the Governor for an opening on the Maricopa County Superior Court created by Judge Kristin C. Hoffman. View the nominees here.

Apply for Vacancy on Division One of the Arizona Court of Appeals: Applications are being accepted for a vacancy on the Superior Court in Maricopa County created by the appointment of Judge Paul J. McMurdie to Division One of the Arizona Court of Appeals. Applications must be submitted by 3 p.m. on Monday, Nov. 24, 2016. View the announcement here.

Arizona Supreme Court's Commitee on Civil Justice Reform Releases Report and Recommendations: The Committee on Civil Justice Reform reviewed other civil justice reform studies, and developed its recommendations to reduce the cost and time required to resolve civil cases in the superior court of Arizona. Civil justice reform efforts seek to ensure that courts are forums for the fair and efficient resolution of disputes without undue expense or delay. The Committee was established as part of the Arizona Supreme Court's strategic agenda to promote access to justice and to improve court processes to better serve the public. Read the report and recommendations here.

Order Your Copy of the 2016 Economics of Law Practice in Arizona! Learn how members responded to our questions about hourly billing rates, total compensation, and amenities and benefits being offered by Arizona's law firms. This report was last published in 2013, so it's time to see how economic changes have affected our professional lives today. Order online at azbar.org/ordereconomicsreport. For more information email Pat Giallanza.

Join the Bar Flys for a Full or Half Marathon, or 10K or 5K, at a Reduced Registration Fee! Arizona's legal community is coming together for the eighth consecutive year to run in the Rock 'n' Roll Arizona Marathon, Half Marathon, and 10K "Rock Corporate," to be held on Sunday, Jan. 15, 2017. This year, you can also run in the 5K on Saturday, January 14, 2017. For more, click here.

Help Consumers by Writing Law-Related Tips! The State Bar of Arizona seeks attorneys in all practice areas to offer consumer tips via its social media platforms. We'll be sharing tidbits of information to help consumers begin addressing their legal issues associated with family law, landlord/tenant, estate planning, personal injury, immigration, and DUI among others. If you're interested, email Alberto Rodriguez for more information.

Keep Sharing Your Good News With Us! Have you recently been recognized for contributions you make to the communities you serve? Did your firm raise money for charity over the holidays? Are you a leader who is being recognized for advancing the legal profession? If so, we want to hear about it! Email Alberto Rodriguez to be considered for inclusion in a future issue of eLegal under Member News.

Practice Tip - Exercise Caution When You Are Asked By Parties to be the Lawyer 'For the Deal': Click here for a tip from Ahern Insurance, a State Bar Member Discount Provider offering professional liability insurance.

Delight Your Callers: First impressions matter. With Ruby Receptionists, the professional virtual receptionist company, every call is answered live by a cheerful, knowledgeable receptionist. Sign up for Ruby risk-free with a special State Bar of Arizona discount. Visit www.callruby.com/azbar.

Solo Firms Get 7 Days of Unlimited Shepard's� Citations Service and Lexis Advance: Receive access to Shepard's Citations Service as well as primary law materials, Matthew Bender resources, news and an option to include billions of public records. Request your access at www.lexisnexis.com/AZBarOffer.

Save on Car Insurance, Legal Research, Legal Software and More: Click here for the list of companies offering discounts to State Bar members.

court decisions

Arizona Court of Appeals
Division One
Division Two

October 4, 2016 - 1 CA-CR 15-0847 - State of Arizona v. Marcus D. Ceasar
Whether A.R.S. � 13-707(B) requires that a repetitive class 1 misdemeanor conviction be reclassified (and sentenced) as a class 6 felony, or whether the conviction remains classified as a class 1 misdemeanor but is subject to an enhanced, felony-range sentence. Read Opinion.

October 18, 2016 - 2 CA-CV 2015-0166 - In re $15,379.00 in United States Currency
1. When a trial court dismisses a civil forfeiture proceeding concerning seized currency and the state asserts that the property is being held for evidentiary purposes in a related criminal case, is the court authorized to order either the immediate return of the currency or an equivalent payment?  2. Did the state's conduct in this proceeding subject it to sanctions either in the trial court or on appeal? Read Opinion.

9th Circuit Court of Appeals

October 24, 2016 - 13-17622 - SunEarth, Inc. v. Sun Earth Solar Power Co., Ltd.
The en banc court held that following Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S. Ct. 1749 (2014), district courts analyzing a request for attorney fees under the Lanham Act should examine the totality of the circumstances to determine if the case was exceptional, exercising equitable discretion in light of the nonexclusive factors identified in Octane Fitness and Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), and using a preponderance of the evidence standard. Pursuant to Highmark, Inc. v. Allcare Health Mgmt. Sys.,Inc., 134 S. Ct. 1744 (2014), the court of appeals' review of the district court's decision on fees awarded under the Lanham Act is for abuse of discretion. Read Opinion.

October 20, 2016 - 14-56842 - Travis Z. Gonzales v. CarMax Auto Superstores, LLC
In a suit alleging violations of California Vehicle Code section 11713.18(a)(6), which requires a car dealer to provide consumers with a 'completed inspection report' prior to the sale of any 'certified' used vehicle, the district court's summary judgment in favor of defendant is reversed and remand with instructions to enter summary judgment for plaintiff on his Consumer Legal Remedies Act and Unfair Competition Law claims where a report that fails to indicate the results of an inspection in a manner that conveys the condition of individual car components to a buyer is not a 'completed inspection report' under California law. Read Opinion.


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