Overview

HOLDINGS: [1]-In an action alleging that a newspaper engaged in unfair business practices regarding the business expenses of their home delivery carriers, the evidence supported a finding that the carriers were employees based on common law factors; [2]-There was no basis to decertify the class on the ground the class was not adequately represented; [3]-Under Lab. Code, § 2802, the trial court properly ordered the newspaper to reimburse the carriers by paying them enhanced compensation to cover expenses because the evidence did not show that the newspaper communicated to carriers an apportionment method that enabled them to readily determine the amount of their pay that was intended to reimburse expenses; [4]-Attorney fees were properly awarded based on a finding that plaintiffs' actual litigation costs substantially exceeded the financial benefits they reasonably expected to obtain.

Outcome

Affirmed in part; reversed and remanded in part, with directions.


Procedural Posture

Petitioner attorney sought review of a finding by the California Board of Bar Governors (board) PC 647 , that he abused an elderly client's confidence by drawing a will naming him the residuary beneficiary of her estate and by accepting a substantial cash gift from her. The board recommended that the attorney be suspended for two years.

Overview

The client executed a will that left the residue of her estate to the attorney and made an inter vivos gift to him. In a will contest, a jury determined that the attorney had exercised undue influence and that the client was mentally incompetent, but the trial judge held that the evidence of incompetence was insufficient. The board initiated a disciplinary proceeding for abuse of client confidence and recommended a two-year suspension. The court dismissed the proceeding. Although the circumstances gave rise to a presumption of undue influence, the attorney rebutted the presumption. Another attorney, who had offices nearby, testified that he read the will to the client, questioned her about her intention, and explained to her the nature of the residuary gift. Thus, the client was given much of the protection she would have received had the attorney sent her to another attorney when she stated her intention to make him a beneficiary. There was no evidence that the client was not fully competent on the day in question. The board did not prove that the attorney obtained either the testamentary or inter vivos gift by undue influence. The attorney's conduct did not call for discipline.

Outcome

The disciplinary proceeding against the attorney was dismissed.