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CDAA CHIEF MADE FEDERAL PROSECUTOR SACRAMENTO — The new U.S. attorney for the Eastern District of California has picked the head of the California District Attorneys Association to be his No. 2. Lawrence Brown, a former Ventura County deputy DA, has resigned his post with the CDAA. He leaves Friday to become the first assistant U.S. attorney under McGregor Scott. A few weeks ago, President Bush tapped Scott, a former Contra Costa County deputy DA and currently Shasta DA, to become the new top federal prosecutor for the district, filling a vacancy that was open for about two years. Brown has been with the CDAA — the chief lobbying arm of California’s county prosecutors — since 1994. He was made executive director in 1996. Prior to that, he worked in Ventura for five years after graduating from UC-Davis’ King Hall School of Law. “This will be my first introduction to practicing in the federal system,” Brown said. “This is a pretty monumental shift in my professional life.” First assistant, like the job of U.S. attorney, is primarily a management position; Brown said he hopes to carry some cases too. “I pride myself on being a quick learner,” he said. Currently, there is no one in the first assistant position under interim U.S. Attorney John Vincent. Brown said he met Scott through his CDAA work. — Jeff Chorney LAWYER CAN BE SUED FOR ALLEGED LIE Lying about coverage isn’t a wise idea for attorneys providing advice to insurers in cases against the company’s clients. On Tuesday, Los Angeles’ Second District Court of Appeal ruled that lawyers who do so may be held liable to the plaintiff who originally sued the insurer’s client. The case began when John and June Shafer sued Tri-County Builders, the general contractor they hired to remodel their home. According to the court’s ruling, the contractor’s insurer, Truck Insurance Exchange, hired Irvine lawyer Lance LaBelle, a partner at Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, to represent Tri-County. An arbitrator eventually awarded the Shafers more than $311,000, plus $25,000 in punitive damages. Afterward, LaBelle told the Shafers the arbitrator had found that the contractor never intended to complete the project at the agreed upon price or time. Thus, they would have to be happy with $120,000 because Truck had not agreed to insure the contractor for willful acts. However, the court held, LaBelle was trying to “have his cake and eat it too” because he had earlier advised Truck to provide coverage for willful acts so it wouldn’t have to pay for Cumis counsel. “If the Shafers had known or suspected the truth — that Truck had agreed to provide coverage for willful acts — they would have aggressively sought full payment of the judgment at the outset instead of settling for a payment of $120,000 in March 1994,” Justice Robert Mallano wrote in Tuesday’s ruling. “But the Shafers believed LaBelle.” Justices Vaino Spencer and Miriam Vogel concurred. “The Shafers may sue LaBelle,” the court held, “for allegedly conspiring with Truck to commit actual fraud.” The case is Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone, 03 C.D.O.S. 2402. — Mike McKee S.F. COMMISSIONER RETIRES AFTER 30 YEARS Richard Best, a San Francisco court commissioner who has presided over discovery disputes, will retire after nearly 30 years with the court. Best’s retirement came without warning. “It was unexpected, even for him,” said Presiding Judge Donna Hitchens. “He looked at the numbers, and his retirement benefits were not going to increase. He’d maxed out.” Best announced his retirement in an e-mail sent to Gordon Park-Li, the court’s CEO. His last day was Friday. The decision to retire came when Best turned 60 and met with the retirement board. After thinking it over for a few weeks, Best wasted no time. “I decided to do it in a day and get it over with,” he said Tuesday from home. Because of a heavy caseload in the discovery department, Hitchens moved Commissioner Loretta Norris to the discovery department Monday. She said Norris’ new post would most likely be permanent. Best is currently teaching extended learning courses and plans to take courses on the use of technology in discovery and litigation. “Maybe now I’ll do some private judging. I have a niche with my expertise in discovery,” he said. — Jason Dearen 2ND CIRCUIT VACATES LAW FIRM SANCTIONS NEW YORK — Sanctions against a New York law firm for allowing a client to submit a false affidavit in a trademark dispute have been vacated by the Second Circuit U.S. Court of Appeals. The Second Circuit found that a district judge’s belief that intellectual property firm Pennie & Edmonds acted with subjective good faith meant that the firm should not have been sanctioned. The court’s ruling in In re Pennie & Edmonds, 02-7177, concerned the decision of Southern District of New York Judge John Martin to order mild sanctions for the firm’s representation of a restaurant in litigation over a trademark for pasta sauce. Martin acted sua sponte, or without prompting from parties, in ordering sanctions. Deciding the firm’s appeal, Second Circuit Judge Jon Newman said where a sua sponte sanction “denies the lawyer the opportunity to withdraw the challenged document pursuant to the ‘safe harbor’ provision of Rule 11(c)(1)(A), the appropriate standard is subjective bad faith.” He said that because Judge Martin accepted the firm’s assertion of good faith, the sanction was vacated. — The Legal Intelligencer

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