Inland Empire Bankruptcy Forum LISTSERV

This ListServ is reserved for members of the IEBF Organization. All ListServ membership requests will be verified against current membership of said organization.

INLAND EMPIRE BANKRUPTCY FORUM LISTSERV RULES AND JOINT PROSECUTION/CONFIDENTIALITY AGREEMENT

This Joint Prosecution Confidentiality Agreement is made and entered into by and between the undersigned member attorney (MEMBER) of Bankruptcy Inland Empire Bankruptcy Forum LISTSERV (IEBF), the other Member attorneys, Inland Empire Bankruptcy Forum. WHEREAS, The MEMBER Attorneys desire to work together in a cooperative effort to assist each other and their clients in order to prepare and fairly resolve individual claims involving common issues arising out of the representation of their clients with regards to their clients’ consumer ankruptcy and consumer debtor issues. This shall be known as the Stated Purpose of the group. WHEREAS, IEBF MEMBERS maintain a LISTSERV which is an electronic mailing list among IEBF MEMBERS described above and any archive of said exchanges whether stored in electronic, printed, or any other format, and is operated for the purpose of providing litigation and other legal support contemplating the possibility of litigation, for those MEMBERS handling similar claims in a context in which MEMBERS may develop and share work-product and confidential information without compromising the entitlement to work-product protection or confidential nature of the information, and; WHEREAS, the undersigned MEMBER and each other MEMBER has a compelling need to obtain access to a collaborative mechanism in the representation of his or her clients in order to fairly and adequately prepare his or her clients' individual claims and to achieve a just resolution of his or her clients' claims; CONSUMER LISTSERV PURPOSE The sole purpose of the IEBF LISTSERV is for IEBF Members to confidentially exchange important information, legal research, factual research, and legal advice with each other, relating to: consumer bankruptcy and general issues arising from consumer debt, including foreclosures, the representation of them by their counsel, the sharing of information, legal theories, and pleadings regarding the state of the law and the potential changes of law, references and background of experts, judges, defense attorneys, defendants, arbitrators, and mediators; case evaluation information; recent developments in the law; court rules; strategies; pleadings; tactics; and other attorney work-product information. NOW, in consideration of the mutual promises, undertakings and obligations provided for herein, the parties hereto agree as follows:

1. LISTSERV DEFINED

The phrase LISTSERV includes communication between and information exchanged among IEBF MEMBERS and any archive of said exchanges, whether stored in electronic, printed, or any other format.

2. QUALIFICATIONS FOR PARTICIPATION

REPRESENTATION OF NO CONFLICT: The Undersigned MEMBER represents that he/she is not involved in any business, professional or other relationship that would require the sharing of information from a IEBF LISTSERV with persons who do not qualify for participation in the IEBF LISTSERV, e.g., partners representing interests opposed to consumer debtors (such as insurers, banks, mortgage companies, foreclosure trustees, foreclosure attorneys or others not identified herein, who have interests directly opposed to the type of client whom IEBF MEMBER represent), or others with whom the MEMBER has a fiduciary relationship, and will not share any LISTSERV information with any such persons. MEMBER agrees that his/her obligation to IEBF MEMBERS regarding these restrictions takes priority over any alleged competing obligations to partners, clients, or any other person.

3. NOTICE OF NON-ELIGIBILITY

The undersigned MEMBER agrees to notify the other IEBF MEMBERS on the LISTSERV, in a posting on the LISTSERV, if at any time he/she is: no longer eligible to be a IEBF member; no longer able to affirm compliance with this Agreement and the rules contained herein. MEMBER also agrees that he/she will at that time immediately cease all further use of or access to any IEBF LISTSERV to which he/she no longer qualify until subsequently re-qualified and re-approved for access.

4. NOTICE OF ADVERSE INTEREST

The undersigned MEMBER agrees to notify the MEMBERS of IEBF by posting on the LISTSERV if at any time he/she accepts a litigation matter representing an interest adverse to a homeowner or borrower; providing the general nature of the matter, the name of the client, the name of the adverse party, and the name of the homeowner’s attorney along with the case name with the name of the court in the case. This information is also to be provided when signing this agreement if any such matter described herein shall at that time exist.

5. REPRESENTATION ADVERSE TO ANOTHER MEMBER

In the event that a IEBF MEMBER is or becomes engaged in a claim or lawsuit representing a party adverse to a homeowner’s or borrower’s interest, the MEMBER must immediately determine if opposing counsel is a IEBF MEMBER. If opposing counsel is such a member then the affected members must agree in writing either: (1) not to discuss the matter on a IEBF LISTSERV during the pendency of the claim or lawsuit; or (2) that the MEMBER opposing the homeowner’s interest will withdraw from the IEBF LISTSERV and not access any IEBF archive during the pendency of the claim or lawsuit. Whatever agreement or decision is reached, the affected members agree that the confidentiality, work-product and joint IEBF LISTSERV Rules and Joint Prosecution/Confidentiality Agreement prosecution nature of all posts remains in full force and effect as set forth in this agreement.

6. QUALIFICATION FOR PARTICIPATION

The IEBF LISTSERV is limited to attorney members of IEBF who have properly executed this IEBF LISTSERV Rules and Joint Prosecution/Confidentiality Agreement. By joining and/or participating in a IEBF LISTSERV you are certifying that you are a member in good standing of the your State Bar engaged in the practice of law as a profession, that you regularly represent consumers, and that you DO NOT regularly represent banks, lenders, foreclosure trustees (are not a foreclosure attorney), or others with adverse interests to homeowners who are or may be in trouble with their homes. Persons who regularly represent such interests against homeowners and borrowers are prohibited from participating on the IEBF LISTSERV. You must immediately notify persons designated by the group from time to time as managers/moderators of the IEBF LISTSERV in writing if you no longer meet these criteria and must not use the LISTSERV.

7. PROHIBITED CONDUCT

Obscene, racist, sexist, inflammatory, libelous, threatening, abusive, harassing, pornographic, privacy invading, and/or hateful language is prohibited. Any personal attack on another MEMBER in a message is prohibited.

8. SIGNATURE ON MESSAGES

A MEMBER must include his or her name, telephone number, street address or post office box address and email address within each LISTSERV message or reply thereto to the extent possible. If sending from a cell phone the member must at least identify himself or herself by full name and email address.

9. SHARING FILES

MEMBERS who wish to share files and/or documents are assured that such postings shall be used in furtherance of the Stated Purpose of the group.

10. REPRESENTATION OF PROPER USE

The Undersigned MEMBER agrees that access and/or contribution to a IEBF LISTSERV is assistance in a cooperative effort to further the interest of a claim or litigation on behalf of a home owner, and/or to promote the IEBF LISTSERV Rules and Joint Prosecution/Confidentiality Agreement, common interest of minimizing cost, maximizing judicial efficiency and assuring the just and speedy resolution of an Undersigned MEMBER's consumer client's individual claim.

11. USE RESTRICTION

The Undersigned MEMBER is not permitted to access the IEBF LISTSERV or otherwise use IEBF LISTSERV information for the purpose of assisting anyone outside of IEBF without having first obtained the consent of the party or parties who provided such information. To ensure there are no conflicts concerning such use any consent should be in writing or in the form of an email whenever possible. To use LISTSERV information to assist someone outside of IEBF, the MEMBER must contact the author directly and obtain the information directly, not through the LISTSERV. MEMBER is only permitted to access the LISTSERV and use LISTSERV information for claims and cases on behalf of a consumer debtor/bankruptcy client or in contemplation of future representation of such a client. Any access of the LISTSERV that results in the unauthorized dissemination of LISTSERV information is wrongful and prohibited.

12. CONFIDENTIAL COMMUNICATIONS

a. CONFIDENTIALITY AGREEMENT

The Undersigned MEMBER agrees to maintain the confidential status of all information acquired through the IEBF LISTSERV, (including but not limited to the contents of material contained in or selected from the IEBF LISTSERV archive).

b. LIMIT ON DISSEMINATION

The Undersigned MEMBER is not permitted to forward, copy or otherwise disseminate (in printed copy, electronic copy or orally) the information (including the author, subject or content) contained in a IEBF LISTSERV email or attachment to anyone outside of the IEBF LISTSERV (excluding the member's own staff), without prior written permission from the author. Members are specifically prohibited from communicating any information on the LISTSERV to any bank, lender, foreclosure trustee or foreclosure attorney, or persons associated with them, or representing the same interests even if those persons or entities are a client of the member.

13. EFFORTS TO PROTECT CONFIDENTIAL COMMUNICATIONS

a. COOPERATION

The Undersigned MEMBER agrees to cooperate with other IEBF members in their efforts to protect the IEBF LISTSERV information. Members shall take any and all actions IEBF deems necessary and appropriate to preserve both the work-product status and confidentiality of all emails, information and attachments shared on the LISTSERVS, which includes both IEBF enforcement efforts and legal action.

b. RESPONSE TO DISCOVERY

Any time that a MEMBER is notified that anyone seeks discovery of IEBF LISTSERV information (whether or not the requestor specifically names IEBF or a IEBF LISTSERV), the MEMBER is obligated to: (1) immediately notify persons designated by the group and at the discretion of such designated member, the MEMBER may be required to return any such IEBF information deemed confidential by this organization; and (2) object and seek a protective order preventing discovery of the information.

c. RESPONSE TO MOTION TO COMPEL

In the event that a MEMBER is subject to any motion seeking to compel disclosure of IEBF LISTSERV confidential information, the MEMBER must immediately notify persons designated to receive notice of such events and must move to seal the records and seek a protective order to: (1) preclude anyone from disseminating the data to anyone (attorneys or non-attorneys) outside the confines of the subject case; (2) restrict the use of these materials to the subject case; and (3) require the return of the original and any copies of these materials at the completion of the case.

d. IRREPARABLE DAMAGE IF NOT SEALED

MEMBER agrees and stipulates that: i) overriding work product and joint prosecution interests exist that overcome any right of public access to IEBF LISTSERV confidential information; ii) the overriding interests support sealing the records; iii) a substantial probability exists that the overriding interests will be prejudiced if the record is not sealed; iv) the proposed sealing is narrowly tailored; and v) no less restrictive means exist to achieve the overriding interest.

e. PROTECTING CONFIDENTIALITY UPON BREACH

i. In the event a MEMBER fails to comply with or violates any provision set forth above, the MEMBER: consents (should IEBF deem appropriate) to the issuance of a protective order, restraining order and/or injunction against MEMBER, to protect the confidential information and/or work-product information on the IEBF LISTSERV on the grounds that IEBF and/or its other MEMBERS would suffer imminent irreparable harm and lack an adequate legal remedy absent the injunctive relief;

ii. will indemnify IEBF and/or any archiving member for any attorneys' fees, costs or expenses incurred by IEBF to protect the confidentiality of any information and/or work-product information on the LISTSERV where the need for indemnity arises from that MEMBER'S knowing, willful, or deliberate breach of this agreement;

f. NO AUTHORITY TO WAIVE PRIVILEGE

To the extent that the Undersigned MEMBER intentionally or unintentionally discloses, uses or disseminates information in violation of this Agreement or otherwise attempts to waive the confidentiality of any IEBF LISTSERV communication, (including but not limited to entitlement to protection under the work-product doctrine), such waiver shall not extend to Other MEMBERS or to IEBF acting on Behalf of Other MEMBERS.

14. INDEMNITY AND HOLD HARMLESS:

The Undersigned MEMBER agrees to accept full personal responsibility (and to defend, indemnify and hold IEBF harmless) for any actions performed or messages sent using his or her e-mail address and/or password, including any copyright infringement or any other legal actions which may be brought against IEBF as a result of information posted by the author; As an attorney and MEMBER, you agree to analyze and evaluate the legal implications of each posting you make. IEBF MEMBERS are not responsible for the consequences of any posting, including breaches or losses of confidentiality. IEBF cannot and does not act as a guarantor of such confidentiality; each MEMBER must act to preserve confidentiality.

15. RIGHT TO ENFORCE AGREEMENT ON MEMBER'S BEHALF

The Undersigned MEMBER authorizes and designates IEBF or any MEMBER to act on his or her behalf in his or her capacity as an "Other Member Attorney" of IEBF and the IEBF LISTSERV for the purpose of entering into and enforcing the mutual obligations of this Agreement.

16. LAWFUL OBLIGATIONS

Pursuant to the rules of the California or other state bars, IEBF, and the IEBF LISTSERV each member acknowledges that he/she is obligated to protect the attorney client, work-product, and confidential nature of IEBF LISTSERV communications and that breach of that obligation may be a violation of applicable state and federal laws, and may subject MEMBER to criminal penalties, civil penalties, State Bar Penalties, and IEBF sanctions.

17. CIVIL PENALTIES

MEMBER stipulates and acknowledges that violation of this agreement will cause irreparable harm to IEBF. Every MEMBER has a duty to notify the designated member of IEBF of any known or reasonably suspected violation of this agreement by anyone. In addition to the indemnification provisions contained above, because of the difficulty in measuring or ascertaining actual damages which would result from a breach of this agreement, each MEMBER agrees that $25,000 represents a reasonable sum as liquidated damages for violation of this agreement and unauthorized dissemination of LISTSERV content.

18. STATE BAR OF CALIFORNIA PENALTIES

MEMBER stipulates and acknowledges that violation of this agreement and unauthorized dissemination of LISTSERV content constitutes unprofessional conduct which violates the California Rules of Professional Conduct subjecting MEMBER to California State Bar Discipline or any other state bar to which MEMBER belongs. 

19. IEBF SANCTIONS

a. TEMPORARY OR PERMANENT SUSPENSION FOR VIOLATION:

If IEBF determines that a MEMBER has failed to comply with or has violated any provision set forth above, the MEMBER consents that the MEMBER shall be immediately and without warning, suspended from the IEBF LISTSERV for a period of time, or be terminated, as determined by the IEBF’

b. REVIEW OF SUSPENSION/TERMINATION:

If a member who has been suspended or terminated seeks review of his or her suspension or termination, that disciplined member may request that an appeal from IEBF whose decision shall be final.

20. NO DUTY OF CARE

MEMBERS posting to any IEBF LISTSERV assume no responsibility for the reliance upon information posted. Information posted is for discussion purposes only and each MEMBER is solely responsible for verifying applicable laws and interpretation of those laws. Posting of information on a LISTSERV does not create a co-counsel relationship. IEBF assumes no responsibility for any damages resulting from reliance or attorney-client on LISTSERV content.

21. CONTINUING OBLIGATION

Any and all obligations assumed under this Agreement shall continue both during the MEMBER's participation in IEBF and/or a IEBF LISTSERV, and also shall continue after the completion of a MEMBER's membership in IEBF and/or the MEMBER's participation in a IEBF LISTSERV, whether participation is ended by the MEMBER or by IEBF. Due to the nature of the information obtained and shared on the LISTSERV, which MEMBERS all agree is attorney work-product, there shall be no time limitation on the restriction against the dissemination of such information.

22. NON-WAIVER

Any instance of not enforcing any clause of this Agreement shall not be deemed a waiver.

23. HEADINGS

Headings are for convenience only and shall not be used to interpret this Agreement.

24. CHOICE OF LAW

This Agreement is executed in and intended to be performed in the State of California , and the laws of that state (other than as to choice of laws) shall govern its interpretation and effect. Any action to enforce this agreement shall be filed in the Superior Court of the State of California, County of Riverside.

25. SEVERABILITY

If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected, impaired, or invalidated.

26. DATE OF EFFECTIVENESS (RETROACTIVITY)

This Agreement is effective as to any signatory as of his or her initial participation in IEBF.

IEBF LISTSERV ANNUAL JOINT PROSECUTION/CONFIDENTIALITY AGREEMENT BY CHECKING THE BOX BELOW, I CERTIFY THAT I HAVE READ THE ABOVE IEBF LISTSERV RULES AND JOINT PROSECUTION/CONFIDENTIALITY AGREEMENT, I UNDERSTAND ITS TERMS AND CONDITIONS, AND I AGREE TO COMPLY WITH AND BE BOUND TO ALL SUCH TERMS AND CONDITIONS.