Industry Alerts & Seminars

Our attorneys routinely author legal articles and present on timely topics to clients and industry groups. Below, grouped by legal topic, is a list of recent articles and seminars for your convenience:

Lawyer Liability

Conflict Checks - Are you Doing Them? by Russell Yurk for the Maricopa Lawyer (May 2017, page 10).

We all (hopefully) do conflict checks in the normal course of business before accepting any new matter. I’m going to assume that everyone has a conflict checking system and that it is used by everyone in the firm before undertaking any representation (including new matters for long-term clients). But there are two aspects of conflict checks that are easy to overlook: Who should be included in your conflict system and when to re-run conflict checks. I’ll briefly address both issues in this month’s column.

The Importance of Ethics Committees (and their Opinions) by Russell Yurk for the Maricopa Lawyer (April 2017, page 10).

I usually devote this column to a substantive ethics topic on which I recently gave advice or that I personally encountered. However, this month, I want to talk briefly about the importance of local and national ethics committees and the opinions they issue. Many ethics rules themselves are not complex, but applying those rules to complex factual circumstances can be challenging. That is where ethics opinions become an important resource for lawyers.

Responding to a Subpoena for Client Information by Russell Yurk for the Maricopa Lawyer (March 2017, page 10).

Too often, lawyers receive subpoenas for information contained in the client file or information learned while representing a client. Although not all information in a client file is privileged, it is almost always confidential. Consequently, it is subject to the requirements (and protections) of ER 1.6. This month's legal ethics article discusses these protections.

Confidentiality Obligations When Withdrawing by Russell Yurk for the Maricopa Lawyer (February 2017, page 10).

The American Bar Association recently published Formal Opinion 476, entitled "Confidentiality Issues when Moving to Withdraw for Nonpayment of Fees in Civil Litigation." This month's column discusses the issues raised in this ABA opinion and Arizona's counterpart, Ethics Op. 09-02.

New Year's Resolution by Russell Yurk for the Maricopa Lawyer (January 2017, page 10).

As we ring in the New Year, most of us make New Year's resolutions. But how many of us make resolutions about our ethical practice of law? This month's legal ethics article gives a few ideas of how to make 2017 a more ethical (and productive) year than 2016.

Former Clients Conflicts of Interest by Russell Yurk for the Maricopa Lawyer (December 2016, page 10).

This month's legal ethics article is an analysis of a former client conflict of interest, which differs greatly from current client conflicts of interest. Whereas lawyers owe ongoing duties of loyalty, diligence and communication to current clients, the primary obligation owed to former clients involves protecting the confidentiality of information learned during the course of representation.

Lawyer Discipline by Russell Yurk for the Maricopa Lawyer (November 2016, page 6).

Considering the importance of avoiding formal discipline on a lawyer's record, this month's column is devoted to answering some important questions routinely asked by lawyers who receive a State Bar investigation letter.

Duty of Candor by Russell Yurk for the Maricopa Lawyer (October 2016, page 7).

All "information relating to the representation of a client" is considered confidential. However, there are several exceptions to the prohibition on disclosure of confidential information. One such exception is found in ER 1.6(d)(5), which allows lawyers to disclose information when necessary "to comply with other law." In the context of ER 1.6(d)(5), "other law" includes the duty of candor found in ER 3.3, discussed in this month's article.

Engagement Letters by Russell Yurk for the Maricopa Lawyer (September 2016, page 6).

The engagement letter is an opportunity to explain several other important terms of the representation in writing. This avoids confusion and (hopefully) prevents future disagreements. This month's article also discusses some of the other important terms that should be included in every engagement letter.

Of Counsel by Russell Yurk for the Maricopa Lawyer (August 2016, page 7).

The State Bar of Arizona Committee on the Rules of Professional Conduct recently issued Formal Ethics Opinion 16-01 regarding "of counsel" relationships. This month's legal ethics article discusses what "of counsel" means.

Minding the Minders by Russell Yurk for the Maricopa Lawyer (July 2016, page 6).

A federal judge recently sanctioned several Justice Department lawyers for what it found to be multiple misleading statements to the Court and opposing counsel. It can be far too easy for those whose job is to judge others to forget the need to reflect on his or her own actions. This article discusses three cases where lawyers who were supposed to be enforcing the rules were instead the ones who acted unethically.

Three Quick Things by Russell Yurk for the Maricopa Lawyer (June 2016, page 6).

This month's column focuses on a few issues on which I recently advised other lawyers: Identifying the client; third party payers and multiple client or joint representation.

The Dilemma of the Absent Client by Russell Yurk for The Maricopa Lawyer (May 2016, page 6).

Periodically, an insurer learns of a lawsuit filed against one of its insured and refers the case to a lawyer, who cannot locate the insured defendant. In other situations, the insured initially consents to representation and participates, but then becomes unreachable. In the first situation, the insurer could become liable for a default judgment. In the second, a court will enter judgment against the insured as a sanction at some point. What can an insurer and/or the lawyer do to avoid judgment against an absent insured defendant? This month's article discusses how to steer through these tricky waters.

Five Ways to Build and Maintain and Ethical Practice by Russell Yurk for The Maricopa Lawyer (April 2016, page 6).

Last month, five of the most important reasons why ethics and professionalism matter to one's legal career and business. This month's article discusses five things a lawyer can do to build and maintain an ethical and professional legal practice.

Why Ethics and Professionalism Matter by Russell Yurk for The Maricopa Lawyer (March 2016, page 6).

We all know that ethics are important. Lawyers have to pass an ethics exam before they can practice law. Lawyers also have to attend ethics education every year. And all lawyers (well, most lawyer) would agree that the ethical practice of law is important. But why is it important, and why should you care? This article covers a short list of the most important reasons why ethics and professionalism matter.

Ethics Rules Update by Russell Yurk for The Maricopa Lawyer (February 2016, page 7).

Along with each New Year usually come several changes to court rules. This year is no exception and there are a few important changes to the ethics rules that briefly discussed in this month's legal ethics article.

Lawyer Liability and Ethics Q&A by Russell Yurk for The Maricopa Lawyer (January 2016, page 7).

This month's article discusses the ethics of technology.

Business Law

Small Business Financing, To Lease or Not To Lease by Matthew Sloan for The North Central News (November 2012).

In a tough economy, where traditional financing remains elusive for many small businesses, equipment lease financing is a viable, but little understood alternative. However, it is important to enter into a lease for the right reasons and with the right structure. Consider the following to help determine if equipment leasing is right for your business.

Common Pitfalls Business Owners Should Avoid by Matthew Sloan for The North Central News (March 2012).

This article reviews and discusses common legal issues that business owners face, which, if not addressed correctly, could significantly impact their success.

Construction Law

Arizona Lien Law Lollapalooza, co-presented by Julianne Wheeler, for the Arizona Builders Alliance in Phoenix, Arizona (November 2018)

An in-dept voyage into Arizona lien law. Complete with hands-on exercises, actual case studies and discussions about 1) what projects are lienable; (2) how to properly serve a preliminary notice; 3) understanding lien waivers and how to edit them; and 4) the steps required to record a valid lien and pursue it in court.

The Contractor in Distress Call; Your Best Advice by D. Kim Lough and Julianne Wheeler for the State Bar of Arizona's Construction Law Section in Phoenix, Arizona (February 6, 2018)

Advice for the construction lawyer who receives a difficult call from a client facing critical decision making during an on-going construction project.

The presentation emphasized practical legal advice, the avoidance of litigation and need for creative solutions when the client must deal with termination, forced changes to planned means and methods, and surprise scope increases.

Construction Contract Workshop: Understanding Issues in Contract Administration by Jim Csontos for HalfMoon Education, Inc. (January 24, 2018)

A hands-on examination of contract documents and how they are employed by members of the construction team, including issues to address when the contract is negotiated, when the contract is administered and when issues are presented in the field.

Covering the following topics: chain of command issues ; subcontracts; changes and change orders; payments; substantial and final completion ; as well as breach and pitfalls

Subcontract Negotiations and the Savvy Sub by Julianne Wheeler for ASA's Contractors Compass (February 2017, page 8).

JHC partner Julianne Wheeler helps subcontractors to understand how to use project buyout negotiations to minimize risk and demonstrate project knowledge, set reasonable expectations and establish credibility.

Arizona Court Declares That Preliminary 20-Day Notices Must be Served by Certified or Registered Mail to Preserve a Bond Claim
by Kim Lough for the Jennings Haug Cunningham Construction Legal Alert (May 4, 2015).

On April 30, 2015, Division 2 of the Arizona Court of Appeals issued an opinion affecting common practices in service of preliminary 20-day notices on projects subject to a public works payment bond.

Op-Ed: New ROC Regulatory Philosophy Triggers Need for Self-Audits by D. Kim Lough for AZRE Magazine (September 15, 2014)

Contractors throughout Arizona are being blindsided by a new administrative oversight role undertaken by the Registrar of Contractors (ROC). The Registrar's new prosecutorial philosophy toward investigating complaints against licensed contractors places contractors at risk of losing their license for minimal technical violations which may occur even when the contractor is unaware an issue exists. This sea-change warrants a self-audit of your business practices.

Interpretation of Davis-Bacon Act Could Result in Unforeseen Employee Lodging Expenses by D. Kim Lough for ENR Southwest (May 10, 2012).

The United States Department of Labor has begun to interpret the Davis-Bacon Act to require an employer to reimburse employees' lodging expenses while away from home on prevailing wage jobs. This can create a substantial unanticipated assessment to an employer unaware of this interpretation. In particular, contractors and subcontractors sending skilled workers to federally funded projects may be unaware of this expense.

Creditors' Rights

Lessor More Protected: UCC Article 2A Analysis Strengthens Resistance to Common Lessee Collection Defenses by John Sinodis for The Monitor, (January/February 2012).

In late July 2011, the U.S. District Court for the Eastern District of Pennsylvania published a decision granting summary judgment for an equipment lessor on various defenses and counterclaims raised by multiple business lessees of telephone equipment. De Lage Landen Fin. Services, Inc. v. Rasa Floors stands as a thorough and recent analysis of the maturing law on the general enforceability of finance leases, as promoted by UCC Article 2A.

The UCC's Public Policy Favors the Lessor, Come Hell or High Water by John Sinodis for the Lease Enforcement Attorney Network (January 2012).

De Lage Landen Fin. Services, Inc. v. Rasa Floors is well worth study and application by lessors and their counsel involved in leasing litigation. It stands as a thorough and recent analysis of the maturing law on the general enforceability of finance leases, as promoted by U.C.C. Article 2A, recognized by the courts, and reinforced by standard protections for the unique and limited role of lessors (such as hell or high water clauses and waiver of defense clauses).

Leasing in Tribal Land - Understanding Important Issues by Edward Rubacha and John Sinodis for The Monitor (Conference Issue 2011).

Employment Law

How Employers Should Handle Requests for Workplace Accommodationsfor Arizona Business Magazine (November 2018)."

When employees request certain workplace accommodations, it can be difficult for employers to determine when a "reasonable accommodation" request is made, who is "disabled" under the law, and what requests must be accommodated. This article discusses the factors to be evaluated by employers when evaluating accommodation requests.

How to Protect Your Business from Employees' Social Media Posts for Arizona Business Magazine (September 2018)."

With such easy access to social media, any employee can cause harm to a business at any time. So, what can employers do to proactively manage their employees’ social media activity, both on and off-the-clock? This article provides do’s and don’ts with some guidance on the issue.

Environmental Law

Environmental Law Alert: ADEQ Issues New AZPDES General Permit for the Jennings Haug Cunningham Environmental Law Alert (October 2012).

ADEQ issued a new AZPDES general permit for certain wastewater discharges, making application for such permits easier, more expeditious, and less costly. This alert offers insight into the new process and guidelines.

Equipment Leasing & Finance

Cause to Revisit Liquidated Damages in your Equipment Finance Leases? by Alana Porrazzo (February 2019)

On February 14, 2019, the United States Bankruptcy Court for the Southern District of New York ruled that a type of liquidated damages provision commonly found in equipment leases was unenforceable under Section 2A-504 of the Uniform Commercial Code. See In re Republic Airways Holdings, Inc., Case No. 16-10429 (SHL), 2019 WL 630336 (Bankr. S.D.N.Y. Feb. 14, 2019).

Default Interest Held Unenforceable Penalty: In re Altadena Lincoln Crossing LLC by Alana Porrazzo (September 25, 2018)

A recent federal bankruptcy court decision raises new questions about the enforceability of default interest provisions, creating good reason for lending institutions to revisit the terms of their loan agreements and finance leases. Read here how the United States Bankruptcy Court for the Central District of California disallowed a secured lender’s claims.

UCC Article 9 Changes: A Rose by Any Other Name Would Not Smell as Sweet by John Sinodis for NEFA Newsline (July/August 2013, page 17).

New UCC Article 9 rules are discussed, to assist readers with understanding the reasons for 2010 changes, requirements and what finance institutions need to know about compliance.

Artisans' and Personal Property Service Liens by John G. Sinodis for ELFA State Law Compendium for Arizona (March 2013).

The article discusses whether it is possible for Artisans’ and Personal Property Service Liens to take priority over the liens of a secured lender or lessor.

Estate Planning & Trusts

Why Do We Need Estate Planning by Sheri Smith for Raising Arizona's Kids (December 2016).

Hillary Gagnon, a partner with the estate planning practice at JHC explains why it's important for people, particularly parents with children, to have an estate plan in place. When the unthinkable happens, guardianship, conservatorship, special needs trusts and living wills best protect those you love.

Importance of a Revocable Living Trust as Part of Your Estate Plan by Hillary Gagnon for the Jennings Haug Cunningham Estate Planning Newsletter (January 2014).

The Revocable Living Trust is often the primary legal document in an Estate Plan and controls the management and transfer of your assets. This article discusses several important things that a Revocable Living Trust is designed to accomplish.

Long-term Planing for Families with a Special Needs Child by Hillary Gagnon in The North Central News (September 2012).

Parents of grandparents of a special needs child (such as autism, cerebral palsy, Downs Syndrome or mental impairment) understand the important role they play caring for their children. Ms. Gagnon helps outline how to plan for the time when you will no longer be able to care for your special needs child to ensure their long-term care.

Guardianships and Conservatorships by Hillary Gagnon for the Jennings Haug Cunningham Estate Planning Newsletter (Fall 2011).

When a loved one becomes incapacitated and is no longer able to manage his or her affairs, it may be necessary to seek the appointment of a guardian and/or conservator in order to protect your loved one and his or her assets. A guardian and conservator is essentially a surrogate decision maker appointed by the court for an adult with mental or physical disabilities.

"When Does a Threat of Criminal Prosecution Become Extortion?" by Joseph Brophy for the Maricopa Lawyer (July 2019)

The recent arrest of celebrity lawyer Michael Avenatti raises questions about the ethical limits on an attorney’s threat to initiate a criminal prosecution for the purpose of influencing a civil matter.

While it is generally considered to be unethical for an attorney to present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter, Arizona does not have a rule specific to the issue. However, Arizona Rules 4.4 and 8.4 mirror the ABA Model Rules. The ABA explained in Formal Opinion 92- 363 that the drafters believed that extortionate, fraudulent, or otherwise abusive threats were dealt with by other more general rules (e.g., Model Rules 4.4, "Respect for Rights of Third Persons," and 8.4, "Misconduct").

This month's column discusses these rules, legal ethics and the government's case against Mr. Avenatti.

"Can a Client Order You to Not Keep a Copy of the File?" by Joseph Brophy for the Maricopa Lawyer (June 2019)

Rule 1.15(d)(4) of the Arizona Rules of Professional Conduct requires that a lawyer deliver to the client any property the client is entitled to receive. Rule 1.16(e) provides that, upon termination of representation, a lawyer must take reasonable steps to avoid foreseeable prejudice to the rights of the client, including delivering to the client all papers and property to which the client is entitled.

Although a lawyer is entitled to keep a copy of the client’s file after the end of the representation, a more difficult question is presented when the client directs the lawyer to not keep a copy of (read: destroy) the file. In March 2019, the New York State Bar Association looked at the issue in NYSBA Ethics Opinion 1164. This article discusses the facts addressed by the NYSBA.

"Why Can't We Be Friends?" by Joseph Brophy for the Maricopa Lawyer (April 2019)

The Court of Appeals of Wisconsin recently concluded that a trial judge’s undisclosed Facebook connection with a litigant created a great risk of actual bias resulting in the appearance of partiality. This article discusses the ethics surrounding the use of Facebook by judges, and those who may want to become judges.

California Reconsiders Ethical Rules and Legal Business Models by Joseph Brophy for the Maricopa Lawyer (March 2019)

California is taking a hard look at the issue of access to justice as it relates to the delivery of legal services, with potentially important ethical ramifications. For better or worse, California’s ideas have a way of spreading to other states. See why it's important to pay attention.

My Firm Was Hacked. Now What? by Joseph Brophy for the Maricopa Lawyer (January 2019)

Law firms are not immune from being hacked, and large firms are not the only targets. This article discusses this trend and the ABA's Formal Opinion 483 issued in October 2018, in which an attorney's ethical obligations when a data breach exposes client confidential information are outlined.

Manufactured Disqualification of Experts and Counsel by Joseph Brophy for the Maricopa Lawyer (December 2018)

A few months ago, the State Bar of Texas felt the need to issue an opinion prohibiting a lawyer from retaining an expert, or intentionally disclosing confidential information to a prospective expert, for the purpose of attempting to disqualify or otherwise prevent the expert from being used by an opposing party. This article discusses the legal ethics of disqualification of a lawyer or expert in a variety of cases, particularly where the action is considered a very drastic remedy that is to be used sparingly.

This is a Recording - Can Lawyers Record Conversations? by Joseph Brophy for the Maricopa Lawyer (October 2018)

In July, we learned that President Trump's former attorney, Michael Cohen, surreptitiously recorded his former client on multiple occasions. Two thoughts immediately sprang to mind: (1) recording clients without their knowledge seems problematic from an ethical perspective; and (2) the cast of characters in the Russia investigation are starting to resemble the various lifeforms you would find in the bar scene of a Star Wars movie. This article discusses legal ethics surrounding the first.

Should Arizona Adopt ABA Rule 8.4(g) by Joseph Brophy for the Maricopa Lawyer (August 2018)

May 21, 2018 marked the deadline for public comments to the Arizona Supreme Court on whether Arizona should incorporate the ABA's model rule 8.4(g) of professional conduct. This article discusses whether this seemingly good idea has a place in Arizona's Rules of Professional Conduct.

Breaking Up Is Hard To Do: When Partners Leave by Joseph Brophy for the Maricopa Lawyer (June 2018).

When a law partner leaves for another firm it presents the opportunity for all kinds of emotions, disputes and chicanery. The departing partner will often be concerned with their financial well-being going forward and setting up shop at the new firm, which is understandable. However, the members of a partnership owe each other a duty of loyalty and good faith, and as a fiduciary, a partner must consider his or her partners' welfare, and refrain from acting for purely private gain. This article highlights the constraints imposed on them by virtue of their status as fiduciaries.

Surety & Fidelity Law

Managing and Litigating the Complex Surety Case, Third Edition for the American Bar Association (2018); co-authors of Chapter 12, Navigating In and Around Bankruptcy are Jennings Haug Cunningham partners Joseph Brophy, Matthew Sloan and Chad Schexnayder.

Offering a comprehensive resource for the surety practitioner, this book expertly analyzes the myriad issues that arise in complex surety cases. Chapters explore the challenges that arise in preparation for and trial of a "mega" construction surety case, examining the decisions facing the surety when confronted with litigation involving multiple parties, project locations, claimants, potential sources of salvage, and more. The book also discusses techniques and strategies to effectively handle these complex cases. For additional information or to purchase the publication information visit: here

Identifying Construction Contract Risk and Trending Surety Topics by Chad Schexnayder and Julianne Wheeler for the Surety Association of Arizona (January 2018)

AIA Construction Document changes, new case law affecting the industry and heightened contractor risk allocation discussion earmarked for the contracting industry. In addition, the presentation will include a discussion of the evolving law on issues of interest to surety underwriters and surety bond producers.

The Arizona Court of Appeals Rejects Bad Faith Claims Against Little Miller Act Sureties by Chad Schexnayder and R.J. Lamb for the Surety & Fidelity Law Committee Newsletter (Winter 2017, page 8).

JHC attorneys review the recent decision of the Arizona Court of Appeals in S & S Paving & Const., Inc. v. Berkley Reg'l Ins. Co. that held that a surety on a Little Miller Act payment bond may never be sued for bad faith. This article discusses how this ruling confirms the limited scope of the oft-cited decision of the Arizona Supreme Court in Dodge v. Fidelity & Deposit Co. of Maryland, a decision frequently encountered by surety attorneys across the country.

The Surety Underwriters Desk Book (re.2016) for the American Bar Association by the Fidelity and Surety Law Committee.

Originally written for the construction surety underwriter, the Desk Book has gained popularity amongst claims professionals and other organizations, because of its value as a quick reference source for law in a broad range of jurisdictions.

New Bern Riverfront Development, LLC V. Weaver Cooke Construction, EAVER COOKE, LLC: Can the Surety Really be Liable When the Principal is Not? by Joseph Brophy and John Fouhy for the Surety & Fidelity Law Committee Newsletter (Winter 2017, page 6).

JHC partner Joseph Brophy and Travelers claims counsel John Fouhy discuss this 2014 bankruptcy court decision, which provides an important example of how courts can reach the wrong result by narrowly focusing on bond language without considering or understanding the broader suretyship context in which that language must necessarily be read and understood.

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