New ERA Article July, 1998

Can A Lawyer Argue The Need For Advice Of Counsel?

In  general,  judgments  in favor of a plaintiff  result  from  a
verdict  by  judge or jury or because a defendant enters  into  a
stipulation  for judgment after a complaint has  been  filed  and
served.   There  exists,  however, an infrequently  used  law  in
California  which  permits a judgment to be entered  without  any
action having been filed.  Such a statutory procedure is called a
Confession of Judgment.

The  statute  provides  that "A judgment  by  confession  may  be
entered without action, either for money due or to become due, or
to  secure  any person against contingent liability on behalf  of
the defendant, or both."

Only  the  debtor may make the confession; the debtor's  attorney
cannot  enter  into a Confession of Judgment  on  behalf  of  his
client.

Although a debtor must personally confess judgment, a debtor  may
do so only if

                "an attorney independently representing
          the  [debtor]  signs a certificate  that  the
          attorney  has examined the proposed  judgment
          and has advised the defendant with respect to
          the  waiver of rights and defenses under  the
          confession  of  judgment  procedure  and  has
          advised   the   [debtor]   to   utilize   the
          confession of judgment procedure."

The  certificate must be filed together with the Statement of the
debtor confessing judgment.

In  a recent California case, a fellow in Yolo County obtained an
unsecured $500,000 line of credit from the First Northern Bank of
Dixon.   As  part of the transaction, the debtor entered  into  a
Confession of Judgment to secure the loan.

The debtor, an attorney at law, signed a document indicating that
he had

               "examined the accompanying Confession of
          Judgment and the proposed Judgment, and  with
          full  knowledge  and  understanding  of   the
          waiver  of rights and defenses being  granted
          under the Confession of Judgment Procedure do
          hereby  agree  to  [use]  the  Confession  of
          Judgment procedure."

The  attorney  debtor also provided a cover letter  in  which  he
stated that he had never been a practicing attorney and "had  not
received   advice   from   any  other  attorney   regarding   the
consequences of executing the declaration".

The  attorney  subsequently sought an injunction and  declaration
that  the Confession of Judgment was invalid because it  was  not
accompanied   by   the  required  certificate  of   an   attorney
independent of both the attorney-debtor and the Bank.

The Court of Appeal agreed and determined that the Confession  of
Judgment  was invalid, notwithstanding the fact that  the  debtor
was an attorney at law.

Although  the  statute  clearly requires an independent  attorney
representing  the  debtor  to sign a  certificate  declaring  his
advice to the debtor, the bank argued that such a requirement was
an  absurdity, noting "that the state allows laypeople to act  as
their  own  attorneys even during the penalty phase of a  capital
criminal proceeding."

The  Court  rejected  this  argument  as  flawed  since  in  such
circumstances, before a defendant may proceed in propria persona,
there  must  be  a  judicial  determination  of  the  defendant's
"knowing,  voluntary,  and intelligent waiver  of  the  right  to
counsel. . . ."

The  Court  further noted that the Legislature, in providing  for
the Confession of Judgment procedure, mandated the requirement of
such   independent  advice  and  the  filing  of  a   certificate
demonstrating such independent advice.  The Court concludes, "The
statute  on  its face does not exclude attorneys as a class  from
its protection, and we are not about to engraft such exception by
judicial fiat."

The  moral  of the story?  Even an attorney has the right  to  an
attorney from time to time!


[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from New Era Magazine
Myles M. Mattenson © 1998-2002

	Myles M. Mattenson ATTORNEY AT LAW 5550 Topanga Canyon Blvd. Suite 200 Woodland Hills, California 91367 Telephone (818) 313-9060 Facsimile (818) 313-9260 *Email:* MMM@MattensonLaw.com *Web:* http://www.MattensonLaw.com	Can A Lawyer Argue The Need For Advice Of Counsel?
Myles M. Mattenson engages in a general civil and trial practice including litigation and transactional services relating to the coin laundry and dry cleaning industries, franchising, business, purchase and sale of real estate, easements, landlord-tenant, partnership, corporate, insurance bad faith, personal injury, and probate legal matters. In providing services to the coin laundry and dry cleaning industries, Mr. Mattenson has represented equipment distributors, coin laundry and dry cleaning business owners confronted with landlord-tenant issues, lease negotiations, sale documentation including agreements, escrow instructions, and security instruments, as well as fraud or misrepresentation controversies between buyers and sellers of such businesses. Mr. Mattenson serves as an Arbitrator for the Los Angeles County Superior Court. He is also past chair of the Law Office Management Section of the Los Angeles County Bar Association. Mr. Mattenson received his Bachelor of Science degree (Accounting) in 1964 and his Juris Doctorate degree from Loyola University School of Law in 1967. Bi-monthly articles by Mr. Mattenson on legal matters of interest to the business community appear in alternate months in The Journal, a leading coin laundry industry publication of the Coin Laundry Association, and Fabricare, a leading dry cleaning industry publication of the International Fabricare Institute. During the period of May 1995 through September 2002, Mr. Mattenson contributed similar articles to New Era Magazine, a coin laundry and dry cleaning industry publication which ceased publication with the September 2002 issue. This website contains copies of Mr. Mattenson's New Era Magazine articles which can be retrieved through a subject or chronological index. The website also contains copies of Mr. Mattenson's Journal and Fabricare articles, which can be retrieved through a chronological index. In addition to Mr. Mattenson's trial practice, he has successfully prosecuted and defended appeals on behalf of his clients in various areas of the law. Some of these appellate decisions are contained within his website.