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California Probate Code

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  • stonekutteral
    Some California laws about lawyers, and who can hire them, what they need to work on a case, NOT definitive or organized but it s a start ......and Thanks
    Message 1 of 1 , Sep 4 11:44 AM
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      Some California laws about lawyers, and who can hire them, what they
      need to work on a case, NOT definitive or organized but it's a start
      ......and Thanks Hobot for the info on the bar !!! cheers, Al

      PROBATE CODE SECTION 620
      620. A power of appointment can be created only by a donor having the
      capacity to transfer the interest in property to which the power
      relates.
      PROBATE CODE SECTION 625 625. (a) A power of appointment can be
      exercised only by a donee having the capacity to transfer the interest
      in property to which the power relates.
      (b) Unless the creating instrument otherwise provides, a donee who
      is a minor may not exercise a power of appointment during minority.

      Probate 4203. (a) A principal may designate one or more successor
      attorneys-in-fact to act if the authority of a predecessor
      attorney-in-fact terminates.
      (b) The principal may grant authority to another person, designated
      by name, by office, or by function, including the initial and any
      successor attorneys-in-fact, to designate at any time one or more
      successor attorneys-in-fact.
      (c) A successor attorney-in-fact is not liable for the actions of
      the predecessor attorney-in-fact.

      PROBATE CODE
      SECTION 610-613
      610. As used in this part:
      (a) "Appointee" means the person in whose favor a power of
      appointment is exercised.
      (b) "Appointive property" means the property or interest in property
      that is the subject of the power of appointment.
      (c) "Creating instrument" means the deed, will, trust, or other
      writing or document that creates or reserves the power of
      appointment.
      (d) "Donee" means the person to whom a power of appointment is given
      or in whose favor a power of appointment is reserved.
      (e) "Donor" means the person who creates or reserves a power of
      appointment.
      (f) "Permissible appointee" means a person in whose favor a power of
      appointment can be exercised.
      exercisable by a written will.


      probate code 633. (a) If the creating instrument requires the consent
      of the
      donor or other person to exercise a power of appointment, the power
      can only be exercised when the required consent is contained in the
      instrument of exercise or in a separate written instrument, signed in
      each case by the person whose consent is required.
      probate code

      631. (a) Where an appointment does not satisfy the formal
      requirements specified in the creating instrument as provided in
      subdivision (a) of Section 630, the court may excuse compliance with
      the formal requirements and determine that exercise of the
      appointment was effective if both of the following requirements are
      satisfied:
      (1) The appointment approximates the manner of appointment
      prescribed by the donor.
      (2) The failure to satisfy the formal requirements does not defeat
      the accomplishment of a significant purpose of the donor.
      (b) This section does not permit a court to excuse compliance with
      a specific reference requirement under Section 632.


      611. (a) A power of appointment is "general" only to the extent
      that it is exercisable in favor of the donee, the donee's estate, the
      donee's creditors, or creditors of the donee's estate, whether or
      not it is exercisable in favor of others.
      (b) A power to consume, invade, or appropriate property for the
      benefit of a person in discharge of the donee's obligation of support
      that is limited by an ascertainable standard relating to the person'
      s health, education, support, or maintenance is not a general power
      of appointment.
      (c) A power exercisable by the donee only in conjunction with a
      person having a substantial interest in the appointive property that
      is adverse to the exercise of the power in favor of the donee, the
      donee's estate, the donee's creditors, or creditors of the donee's
      estate is not a general power of appointment.
      (d) A power of appointment that is not "general" is "special."
      (e) A power of appointment may be general as to some appointive
      property, or an interest in or a specific portion of appointive
      property, and be special as to other appointive property.



      612. (a) A power of appointment is "testamentary" if it is
      exercisable only by a will.
      (b) A power of appointment is "presently exercisable" at the time
      in question to the extent that an irrevocable appointment can be
      made.
      (c) A power of appointment is "not presently exercisable" if it is
      "postponed." A power of appointment is "postponed" in either of the
      following circumstances:
      (1) The creating instrument provides that the power of appointment
      may be exercised only after a specified act or event occurs or a
      specified condition is met, and the act or event has not occurred or
      the condition has not been met.
      (2) The creating instrument provides that an exercise of the power
      of appointment is revocable until a specified act or event occurs or
      a specified condition is met, and the act or event has not occurred
      or the condition has not been met.


      ommitted by another attorney-in-fact.


      probate code
      4203. (a) A principal may designate one or more successor
      attorneys-in-fact to act if the authority of a predecessor
      attorney-in-fact terminates.
      (b) The principal may grant authority to another person,
      designated by name, by office, or by function, including the initial
      and any successor attorneys-in-fact, to designate at any time one or
      more successor attorneys-in-fact.
      (c) A successor attorney-in-fact is not liable for the actions of
      the predecessor attorney-in-fact.



      cali probate code PROBATE CODE
      SECTION 680-684




      680. The donor of a power of appointment cannot nullify or alter
      the rights given creditors of the donee by Sections 682, 683, and 684
      by any language in the instrument creating the power.



      681. Property covered by a special power of appointment is not
      subject to the claims of creditors of the donee or of the donee's
      estate or to the expenses of the administration of the donee's
      estate.

      PROBATE CODE
      SECTION 2300




      2300. Before the appointment of a guardian or conservator is
      effective, the guardian or conservator shall:
      (a) Take an oath to perform the duties of the office according to
      law, which oath shall be attached to or endorsed upon the letters.
      (b) File the required bond if a bond is required.





      probate code PROBATE CODE
      SECTION 2340-2341




      2340. A superior court may not appoint a person to carry out the
      duties of a professional fiduciary, or permit a person to continue
      those duties, unless he or she holds a valid, unexpired, unsuspended
      license as a professional fiduciary under Chapter 6 (commencing with
      Section 6500) of Division 3 of the Business and Professions Code, is
      exempt from the definition of "professional fiduciary" under Section
      6501 of the Business and Professions Code, or is exempt from the
      licensing requirements of Section 6530 of the Business and
      Professions Code.


      2341. This article shall become operative on July 1, 2008.



      PROBATE CODE
      SECTION 4120-4130




      4120. A natural person having the capacity to contract may execute
      a power of attorney.



      4121. A power of attorney is legally sufficient if all of the
      following requirements are satisfied:
      (a) The power of attorney contains the date of its execution.
      (b) The power of attorney is signed either (1) by the principal or
      (2) in the principal's name by another adult in the principal's
      presence and at the principal's direction.
      (c) The power of attorney is either (1) acknowledged before a
      notary public or (2) signed by at least two witnesses who satisfy the
      requirements of Section 4122.



      4122. If the power of attorney is signed by witnesses, as provided
      in Section 4121, the following requirements shall be satisfied:
      (a) The witnesses shall be adults.
      (b) The attorney-in-fact may not act as a witness.
      (c) Each witness signing the power of attorney shall witness
      either the signing of the instrument by the principal or the
      principal's acknowledgment of the signature or the power of attorney.

      cali probate code PROBATE CODE SECTION 640-642
      640. (a) The exercise of a power of appointment requires a
      manifestation of the donee's intent to exercise the power.


      cali probate code
      613. A power of appointment is "imperative" where the creating
      instrument manifests an intent that the permissible appointees be
      benefited even if the donee fails to exercise the power. An
      imperative power can exist even though the donee has the privilege of
      selecting some and excluding others of the designated permissible
      appointees. All other powers of appointment are "discretionary."
      The donee of a discretionary power is privileged to exercise, or not
      to exercise, the power as the donee chooses.




      California nRules Of Professional Conduct sectionRule 3-200. Prohibited
      Objectives of Employment.

      A member shall not seek, accept, or continue employment if the member
      knows or should know that the objective of such employment is:

      (A) To bring an action, conduct a defense, assert a position in
      litigation, or take an appeal, without probable cause and for the
      purpose of harassing or maliciously injuring any person; or

      (B) To present a claim or defense in litigation that is not warranted
      under existing law, unless it can be supported by a good faith argument
      for an extension, modification, or reversal of such existing law.

      Califonia B&P Code
      6126. (a) Any person advertising or holding himself or herself out
      as practicing or entitled to practice law or otherwise practicing law
      who is not an active member of the State Bar, or otherwise
      authorized pursuant to statute or court rule to practice law in this
      state at the time of doing so, is guilty of a misdemeanor punishable
      by up to one year in a county jail or by a fine of up to one thousand
      dollars ($1,000), or by both that fine and imprisonment. Upon a
      second or subsequent conviction, the person shall be confined in a
      county jail for not less than 90 days,



      6077. The rules of professional conduct adopted by the board, when
      approved by the Supreme Court, are binding upon all members of the
      State Bar.
      For a wilful breach of any of these rules, the board has power to
      discipline members of the State Bar by reproval, public or private,
      or to recommend to the Supreme Court the suspension from practice for
      a period not exceeding three years of members of the State Bar.




      6077.5. An attorney and his or her employees who are employed
      primarily to assist in the collection of a consumer debt owed to
      another, as defined by Section 1788.2 of the Civil Code, shall comply
      with all of the following:
      (a) The obligations imposed on debt collectors pursuant to Article
      2 (commencing with Section 1788.10) of Title 1.6C of Part 4 of
      Division 3 of the Civil Code.
      (b) Any employee of an attorney who is not a member of the State
      Bar of California, when communicating with a consumer debtor or with
      any person other than the debtor concerning a consumer debt, shall
      identify himself or herself, by whom he or she is employed, and his
      or her title or job capacity.
      (c) Without the prior consent of the debtor given directly to the
      attorney or his or her employee or the express permission of a court
      of competent jurisdiction, an attorney or his or her employee shall
      not communicate with a debtor in connection with the collection of
      any debt at any unusual time or place, or time or place known, or
      which should be known, to be inconvenient to the debtor. In the
      absence of knowledge of circumstances to the contrary, an attorney or
      his or her employee shall assume that the convenient time for
      communicating with the debtor is after 8 a.m. and before 9 p.m.,
      local time at the consumer's location.
      (d) If a debtor notifies an attorney or his or her employee in
      writing that the debtor refuses to pay a debt or that the debtor
      wishes the attorney or his or her employee to cease further
      communications with the debtor, the attorney or his or her employee
      shall not communicate further with the debtor with respect to such
      debt, except as follows:
      (1) To advise the debtor that the attorney or his or her employee'
      s further efforts are being terminated.
      (2) To notify the debtor that the attorney or his or her employee
      or creditor may invoke specific remedies which are ordinarily invoked
      by such attorney or creditor.
      (3) Where applicable, to notify the debtor that the attorney or
      creditor intends to invoke his or her specific remedy.
      (4) Where a suit has been filed or is about to be filed and the
      debtor is not represented by counsel or has appeared in the action on
      the debt in propria persona.
      For the purpose of this section, "debtor" includes the debtor's
      spouse, parent, or guardian, if the debtor is a minor, executor, or
      administrator.
      (e) An attorney or his or her employee shall not take or threaten
      to take any nonjudicial action to effect disposition or disablement
      of property if (1) there is no present right to possession of the
      property claimed as collateral through an enforceable security
      interest; (2) there is no present intention to take possession of the
      property; or (3) the property is exempt by law from that disposition
      or disablement.
      (f) An attorney or his or her employee shall not cause charges to
      be made to any person for communications, by concealment of the true
      purposes of the communication. The charges include, but are not
      limited to, collect telephone calls and telegram fees.
      (g) Within five days after the initial communication with a debtor
      in connection with the collection of any unsecured debt, an attorney
      or his or her employee shall, unless the following information is
      contained in the initial communication or the debtor has paid the
      debt, send the debtor a written notice containing the following:
      (1) The amount of the debt.
      (2) The name of the creditor to whom the debt is owed.
      (3) A statement that unless the debtor, within 30 days receipt of
      the notice, disputes the validity of the debt or any portion thereof,
      the debt will be assumed to be valid by the attorney or his or her
      employee.
      (4) A statement that if the debtor notifies the debt collector in
      writing within the 30-day period that the debt, or any portion
      thereof, is disputed, the attorney or his or her employee will obtain
      a writing, if any exists, evidencing the debt or a copy of the
      judgment against the debtor and a copy of such writing or judgment
      will be mailed to the debtor by the attorney or his or her employee.

      (5) A statement that, upon the debtor's written request within the
      30-day period, the attorney or his or her employee will provide the
      debtor the name and address of the original creditor, if different
      from the current creditor.
      If the debtor notifies the attorney or his or her employee in
      writing within the 30-day period described in this section that the
      debt or any portion thereof is disputed, or that the debtor requests
      the name and address of the original creditor, the attorney and his
      or her employee shall cease collection of the debt or any disputed
      portion thereof, except for filing suit thereon, until the attorney
      obtains a writing, if any exists, evidencing the debt or a copy of a
      judgment or the name and address of the original creditor, and a copy
      of such writing or judgment or the name and address of the original
      creditor is mailed to the debtor by the attorney or his or her
      employee.
      (h) If any debtor owes multiple debts and makes any single payment
      to any attorney or his or her employee with respect to the debts,
      the attorney may not apply such payment to any debt which is disputed
      by the debtor and, where applicable, shall apply such payment in
      accordance with the debtor's directions.
      (i) A willful breach of this section constitutes cause for the
      imposition of discipline of the attorney in accordance with Section
      6077.



      6078. After a hearing for any of the causes set forth in the laws
      of the State of California warranting disbarment, suspension or other
      discipline, the board has the power to recommend to the Supreme
      Court the disbarment or suspension from practice of members or to
      discipline them by reproval, public or private, without such
      recommendation.
      The board may pass upon all petitions for reinstatement.
      CB&Psec.
      6086.2. All State Bar records pertaining to admissions, membership,
      and the administration of the program authorized by Article 14 of
      this chapter shall be available to the Office of Trial Counsel and
      the Office of Investigations for use in the investigation and
      prosecution of complaints against members of the State Bar, except to
      the extent that disclosure is prohibited by law.


      cali rules of Pro Conductule 1-120. Assisting, Soliciting, or Inducing
      Violations.

      A member shall not knowingly assist in, solicit, or induce any
      violation of these rules or the State Bar Act.

      Rule 2-200. Financial Arrangements Among Lawyers.

      (A) A member shall not divide a fee for legal services with a lawyer
      who is not a partner of, associate of, or shareholder with the member
      unless:

      (1) The client has consented in writing thereto after a full disclosure
      has been made in writing that a division of fees will be made and the
      terms of such division; and

      Rule 3-300. Avoiding Interests Adverse to a Client.

      A member shall not enter into a business transaction with a client; or
      knowingly acquire an ownership, possessory, security, or other
      pecuniary interest adverse to a client, unless each of the following
      requirements has been satisfied:

      (A) The transaction or acquisition and its terms are fair and
      reasonable to the client and are fully disclosed and transmitted in
      writing to the client in a manner which should reasonably have been
      understood by the client; and

      (B) The client is advised in writing that the client may seek the
      advice of an independent lawyer of the client's choice and is given a
      reasonable opportunity to seek that advice; and

      (C) The client thereafter consents in writing to the terms of the
      transaction or the terms of the acquisition.

      Rule 3-310. Avoiding the Representation of Adverse Interests.

      (A) For purposes of this rule:

      (1) "Disclosure" means informing the client or former client of the
      relevant circumstances and of the actual and reasonably foreseeable
      adverse consequences to the client or former client;

      (2) "Informed written consent" means the client's or former client's
      written agreement to the representation following written disclosure;

      (3) "Written" means any writing as defined in Evidence Code section 250.

      (B) A member shall not accept or continue representation of a client
      without providing written disclosure to the client where:

      (1) The member has a legal, business, financial, professional, or
      personal relationship with a party or witness in the same matter; or

      (2) The member knows or reasonably should know that:

      (a) the member previously had a legal, business, financial,
      professional, or personal relationship with a party or witness in the
      same matter; and

      (b) the previous relationship would substantially affect the member's
      representation; or

      (3) The member has or had a legal, business, financial, professional,
      or personal relationship with another person or entity the member knows
      or reasonably should know would be affected substantially by the
      resolution of the matter; or

      (4) The member has or had a legal, business, financial, or professional
      interest in the subject matter of the representation.

      (C) A member shall not, without the informed written consent of each
      client:

      (1) Accept representation of more than one client in a matter in which
      the interests of the clients potentially conflict; or

      (2) Accept or continue representation of more than one client in a
      matter in which the interests of the clients actually conflict; or

      (3) Represent a client in a matter and at the same time in a separate
      matter accept as a client a person or entity whose interest in the
      first matter is adverse to the client in the first matter.

      (D) A member who represents two or more clients shall not enter into an
      aggregate settlement of the claims of or against the clients, without
      the informed written consent of each client.

      (E) A member shall not, without the informed written consent of the
      client or former client, accept employment adverse to the client or
      former client where, by reason of the representation of the client or
      former client, the member has obtained confidential information
      material to the employment.

      (F) A member shall not accept compensation for representing a client
      from one other than the client unless:

      (1) There is no interference with the member's independence of
      professional judgment or with the client-lawyer relationship; and

      (2) Information relating to representation of the client is protected
      as required by Business and Professions Code section 6068, subdivision
      (e); and

      (3) The member obtains the client's informed written consent, provided
      that no disclosure or consent is required if:

      (a) such nondisclosure is otherwise authorized by law, or

      (b) the member is rendering legal services on behalf of any public
      agency which provides legal services to other public agencies or the
      public.

      [Discussion]

      Rule 3-500. Communication.

      A member shall keep a client reasonably informed about significant
      developments relating to the employment or representation, including
      promptly complying with reasonable requests for information and copies
      of significant documents when necessary to keep the client so informed.

      [Discussion]

      Rule 3-700. Termination of Employment.

      (A) In General.

      (1) If permission for termination of employment is required by the
      rules of a tribunal, a member shall not withdraw from employment in a
      proceeding before that tribunal without its permission.

      (2) A member shall not withdraw from employment until the member has
      taken reasonable steps to avoid reasonably foreseeable prejudice to the
      rights of the client, including giving due notice to the client,
      allowing time for employment of other counsel, complying with rule
      3-700(D), and complying with applicable laws and rules.

      (B) Mandatory Withdrawal.

      A member representing a client before a tribunal shall withdraw from
      employment with the permission of the tribunal, if required by its
      rules, and a member representing a client in other matters shall
      withdraw from employment, if:

      (1) The member knows or should know that the client is bringing an
      action, conducting a defense, asserting a position in litigation, or
      taking an appeal, without probable cause and for the purpose of
      harassing or maliciously injuring any person; or

      (2) The member knows or should know that continued employment will
      result in violation of these rules or of the State Bar Act; or
      Standards: Rule 4-100

      Pursuant to rule 4-100(C) the Board of Governors of the State Bar
      adopted the following standards, effective January 1, 1993, as to what
      "records" shall be maintained by members and law firms in accordance
      with subparagraph (B)(3).

      (1) A member shall, from the date of receipt of client funds through
      the period ending five years from the date of appropriate disbursement
      of such funds, maintain:

      (a) a written ledger for each client on whose behalf funds are held
      that sets forth:

      (i) the name of such client,

      (ii) the date, amount and source of all funds received on behalf of
      such client,

      (iii) the date, amount, payee and purpose of each disbursement made on
      behalf of such client, and

      (iv) the current balance for such client;

      (b) a written journal for each bank account that sets forth:

      (i) the name of such account,

      (ii) the date, amount and client affected by each debit and credit, and

      (iii) the current balance in such account;

      (c) all bank statements and cancelled checks for each bank account; and

      (d) each monthly reconciliation (balancing) of (a), (b), and (c).

      (2) A member shall, from the date of receipt of all securities and
      other properties held for the benefit of client through the period
      ending five years from the date of appropriate disbursement of such
      securities and other properties, maintain a written journal that
      specifies:

      (a) each item of security and property held;

      (b) the person on whose behalf the security or property is held;

      (c) the date of receipt of the security or property;

      (d) the date of distribution of the security or property; and

      (e) person to whom the security or property was distributed.(Trust
      Account Record Keeping Standards as Adopted by the Board of Governors
      on July 11, 1992, effective January 1, 1993.)



      Cali Probate code sect.
      672. (a) Except as provided in subdivision (b), if the donee of a
      discretionary power of appointment fails to appoint the property,
      releases the entire power, or makes an ineffective appointment, in
      whole or in part, the appointive property not effectively appointed
      passes to the person named by the donor as taker in default or, if
      there is none, reverts to the donor.
      (b) If the donee of a general power of appointment makes an
      ineffective appointment, an implied alternative appointment to the
      donee's estate may be found if the donee has manifested an intent
      that the appointive property be disposed of as property of the donee
      rather than as in default of appointment.


      Committee, as established pursuant to Section 6511.




      6502. (a) Every person who is required to register with the
      Statewide Registry maintained by the Department of Justice under
      Chapter 13 (commencing with Section 2850) of Part 4 of Division 4 of
      the Probate Code prior to January 1, 2007, shall be required to
      obtain a license as a professional fiduciary under this chapter.
      (b) Every person who is required to file information with the
      clerk of the court under Article 4 (commencing with Section 2340) of
      Chapter 3 of Part 4 of Division 4 of the Probate Code prior to
      January 1, 2007, shall be required to obtain a license as a
      professional fiduciary under this chapter.
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