California Recognizes “Nonbinary” Gender Category And Requires Certain State Agencies To Collect Sexual Orientation And Gender Identity Data

April 2019
Number 22

The California Legislature recently passed legislation, taking effect in 2018 and 2019, making it easier for individuals to change their gender identity on official documents, adding a new gender identity option to certain forms of identification and vital records, and requiring certain state and local agencies to change data collection practices so that gender identity is more accurately accounted for in demographic data.

Assembly Bill (AB) 677: Sexual Orientation and Gender Identity Data Collection

Current law requires specific state departments, in the course of collecting certain demographic data, to collect voluntary self-identification information pertaining to sexual orientation and gender identity. AB 677 expands the list of state entities that must comply with these data collection requirements to include, among others, the California Department of Education (CDE). CDE must comply with the requirements as early as possible, but not later than July 1, 2019.

Additionally, AB 677 prohibits public schools administering a voluntary survey from removing any question pertaining to sexual orientation and/or gender identity. This prohibition became effective January 1, 2018. Under prior law, public schools were permitted to remove any question regarding sexual orientation and/or gender identity from voluntary surveys.

Senate Bill (SB) 179: Male, Female and Nonbinary Gender Markers

SB 179, also known as the Gender Recognition Act, was signed into law by Governor Jerry Brown and went into full effect on January 1, 2019. (See 2018 CNB No. 13.) Now, for the first time in state history, California legally recognizes a third gender option for individuals who do not identify as either male or female. Specifically, California residents may choose from three equally recognized gender options – female, male, or nonbinary – on birth certificates, driver’s licenses, and other state-issued identification cards.

Additionally, the law eliminates previous barriers for individuals wanting to change their gender marker and name on these identifying documents. Under prior law, an individual was required to obtain a physician’s declaration confirming that the individual had undergone clinically appropriate treatment for the purpose of gender transition in order to obtain a new birth certificate or to petition for a court order confirming the individual’s name and gender identity. With the passage of the Gender Recognition Act, a physician’s declaration is no longer required. Instead, individuals seeking a new birth certificate or court order confirming their name and gender identity may submit an affidavit attesting, under penalty of perjury, that the request for a change of gender is to conform to their gender identity and not for any fraudulent purpose. Minors may also petition the court for an order confirming gender identity with the support of a parent or legal guardian.

The law does not affect documents issued by other states or the federal government, such as Social Security cards, passports, and documents issued by US Citizenship and Immigration Services.

Takeaways

School districts, community colleges, and other public agencies will need to review and potentially revise forms, documents, and policies to ensure compliance with the Gender Recognition Act.

For additional information regarding AB 677 and SB 176 or to discuss student rights and gender issues generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Courtney de Groof

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

2019 Updates: Annual Notice Of Parental Rights And Responsibilities

April 2019
Number 21

California school districts and county offices of education are required annually, at the beginning of each school year, to provide written notice of parental rights and responsibilities. Lozano Smith continuously tracks legislation impacting these notices. The following summarizes changes in California law that call for mandatory or optional updates to the Annual Notice of Parental Rights and Responsibilities (Annual Notice).

Discrimination Based on a Student’s Parental, Family, or Marital Status

Assembly Bill (AB) 2289 took effect on January 1, 2019 and, among other things, added Education Code section 221.51, which prohibits Local Educational Agencies (LEAs) from applying any rule concerning a pupil’s actual or potential parental, family, or marital status that treats pupils differently on the basis of sex. Annual Notice non-discrimination provisions should be updated to include language prohibiting discrimination based on a student’s actual or potential parental, family or marital status.

Pregnant and Parenting Student Rights

AB 2289 also requires LEAs to provide: (1) notice to pregnant and parenting students of their rights and options through annual welcome packets and independent study packets; and (2) annual notice to parents and guardians at the beginning of the school year of the rights and options available to pregnant and parenting students. (Ed. Code § 222.5.)

These rights include, but are not limited to, the right of pregnant or parenting students to:

  • not be treated differently on the basis of sex;
  • participate in educational and extracurricular activities, if physically and emotionally able to participate;
  • not be required to participate in pregnant minor programs or alternative education programs;
  • have their pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom treated in the same manner and under the same policies as any other temporary disabling condition;
  • voluntarily take eight weeks of parental leave, or more if deemed medically necessary by the student’s physician;
  • not be required to complete academic work or other school requirements while on parental leave;
  • return to the school and the course of study in which the student was enrolled before taking parental leave or to instead elect to participate in an alternative education program; and
  • not incur an academic penalty as a result of the use of these accommodations.

A complaint of noncompliance with these requirements may be filed under the LEA’s Uniform Complaint Procedures.

Parenting Students/Excused Absences to Care for a Sick Child

AB 2289 also amended Education Code section 48205, subsection (a)(6), to allow parenting students to be absent from school to care for a sick child without a doctor’s note. (See Client News Brief Number 91 from December 2018.) The mandatory Annual Notice excused absences provision under Education Code section 48205 will need to be revised to include student absences during school hours to care for a sick child for which the school may not require a doctor’s note.

Coursework and Graduation Requirements for Migratory and Newly Arrived Immigrant Students

Foster youth, homeless students, former juvenile court school students, and children living in active duty military households are exempted from a number of coursework requirements for graduation. Assembly Bill (AB) 2121 took effect on January 1, 2019 and extends those exemptions to “currently migratory children,” which is defined as including children who have recently moved with a parent, guardian or other person having custody, from another state or from one California school district to another in order for the child or a member of the child’s immediate family to secure temporary or seasonal employment in an agricultural or fishing activity, as defined below, and whose parents or guardians have been informed of the child’s eligibility for migrant education services.

  • “Agricultural activity” means any activity directly related to the production or processing of agricultural products and the cultivation or harvesting of trees; and
  • “Fishing activity” means any activity directly related to the catching or processing of fish or shellfish for initial commercial sale or as a principal means of personal subsistence.

(Ed. Code § 54441, subd. (c) and (d).)

AB 2121 also extends these exemptions to students in their third or fourth year of high school who are participating in a newcomer program, which is a program designed to meet the academic and transitional needs of newly arrived immigrant students, with the development of English language proficiency as the primary objective. (Ed. Code §§ 51225.1, subd. (a) and 51225.2, subd. (a)(6).) (See Client News Brief Number 83 from December 2018.)

Students in Military Families/Residency Retention and Matriculation

LEAs must permit students of military families to continue to attend their schools of origin, despite changes in residence and changes in military status. AB 2949 added Education Code section 48204.6, which allows a student living in the household of an active duty military service member to continue attending the student’s school of origin for the remainder of the school year if the family moves or if the parent or guardian’s military service ends during the school year, and allows the student to matriculate with his or her peers in accordance with the established feeder patterns. (See Client News Brief Number 88 from December 2018.)

AB 2949 mirrors the laws related to protecting foster youth and homeless students, who are also susceptible to frequent school changes. This is a mandatory provision pursuant to Education Code section 48980, subsection (g), which requires that the Annual Notice include all options for meeting residency requirements for school attendance.

Home, Hospital and Residential Health Facility Instruction for Students with Temporary Disabilities

AB 2109 amended Education Code sections 48206.3 et seq. to require that a student whose temporary disability makes school attendance impossible or inadvisable, receive individual instruction either: (1) at home, provided by the school district in which the student resides; or (2) in a hospital or other residential health facility, excluding state hospitals, provided by the school district in which the hospital or residential health facility is located. (See Client News Brief Number 3 from January 2019.)

The Annual Notice must give parents notice of the availability of this individual instruction and information regarding eligibility for, and the duration of, individual instruction.

Access to Student Mental Health Services

AB 2022 added Education Code section 49428, which requires school districts and charter schools to provide students and their parents and guardians with information at least twice per school year regarding how to access student mental health services on campus and/or in the community. This new notice requirement must be implemented beginning in the 2019-2020 school year. Parents and guardians must be given this information in at least two of the following formats: (1) by electronic or hardcopy letter; (2) in the parent handbook distributed at the beginning of the school year; and/or (3) via the school’s website or social media page. (See Client News Brief Number 92 from December 2018.)

Students must be given this information in at least two of the following formats: (1) by electronic or hardcopy document or school publication; (2) in the student orientation materials distributed at the beginning of the school year or a student handbook; and/or (3) via the school’s website or social media page.

Student Financial Aid Information

AB 2015 added Education Code section 51225.8 and requires that commencing with the 2020-2021 school year, student financial aid information be provided at least once before students enter 12th grade. This new law gives school district governing boards discretion regarding how they choose to disseminate student financial aid information and while this information could be added to the Annual Notice, we recommend that it be disseminated separately to all eligible students by school counselors.

The information provided must include, but not necessarily be limited to, material related to all of the following:

  • The types of documentation and personal information that each student financial aid application requires, including, but not necessarily limited to, documents relating to income taxes, finances and income, college choices, academic status, and personal identification such as social security or taxpayer identification numbers.
  • An explanation of definitions used for each application. These definitions may include, but are not necessarily limited to, definitions of “legal guardianship,” “household size,” “parent,” “dependent,” and “taxable college grants and scholarships.”
  • Eligibility requirements for student financial aid that may be applied for using the Free Application for Federal Student Aid (FAFSA) or the California Dream Act Application.
  • Application timelines and submission deadlines.
  • The importance of submitting applications early, especially when student financial aid is awarded on a first-come, first-served basis.

A paper copy of the FAFSA or the California Dream Act Application must be provided to each student, upon a student’s request or upon request by the student’s parent or guardian.

Any information shared by parents, guardians, and students related to financial aid eligibility must be handled according to applicable state and federal privacy laws and regulations.

Lozano Smith regularly reviews and updates Annual Notices for LEAs around the state. Such revisions involve either an update to last year’s Annual Notice to account for changes in the law within the past year, or a more comprehensive review to covering changes in the law over the past several years and/or changes in an LEA’s own policies and practices. If you are interested in any of the annual review services that Lozano Smith provides, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

The California Court of Appeal Has Spoken, Not Just Anyone Can Be Elected County Sheriff—So Says County Clerk

April 2019
Number 20

In 2017, basketball Hall-of-Famer Shaquille O’Neil was sworn in as a deputy sheriff of Henry County, Georgia. The momentous occasion concluded with a moment levity at the end of the swearing-in ceremony when Mr. O’Neil announced his candidacy for County Sheriff in 2020. His wit was fueled by the tacit understanding that county sheriff is a position requiring the qualification of sufficient prior law enforcement experience. World-class basketball skills, although highly important, are woefully insufficient to inform the leadership of a county’s most powerful elected official. Needless to say, Shaq’s announcement was not taken seriously. The ceremony was, for the most part, a publicity stunt. However, the case ofBruce Boyer v. Ventura County (2019) was not.

On February 22, 2018, Mr. Bruce Boyer, a citizen of Ventura County, who had no prior law enforcement experience, submitted his application to be placed on the ballot for county sheriff. Unlike Shaq, Mr. Boyer was serious. As is required by law, upon review of Mr. Boyer’s application, the County Clerk requested documentation of his qualifications for the office of county sheriff.

Importantly, this case illustrates the role of a county and city clerk as a critical gatekeeper charged with the fundamental and important duty to review documents for statutory compliance. In many cases, a vigilant clerk can avert serious and costly problems. In other cases, a seemingly benign mistake can metastasize into a constitutional crisis. The case of Mr. Boyer is an ode to vigilant clerks.

Mr. Boyer, having neither sufficient documents nor sufficient qualifications, took the matter to court where he argued the qualifications requirement was unconstitutional and the Clerk’s refusal to place his name on the ballot denied citizens of their First Amendment right to vote for elected officials of their own choosing. The trial court disagreed with Mr. Boyer and he appealed the case to the California Court of Appeal, where he made the same arguments a second time.

According to the California Elections Code, no person shall be considered a legally qualified candidate for sheriff unless their declaration for candidacy is accompanied with documentation showing they meet the statutory qualifications. The minimum qualifications are either of the following:

  • An advanced certificate issued by the Commission on Peace Officer Standards and Training;
  • One year of prior full-time law enforcement experience and possession of a master’s degree;
  • Two years of prior full-time law enforcement experience and possession of a bachelor’s degree;
  • Three years of prior full-time law enforcement experience and possession of an associate’s degree; or
  • Four years of prior full-time law enforcement experience and possession of a high school diploma or equivalent.

To support his case, Mr. Boyer argued a prior appellate case ruling unconstitutional Legislative predeterminations for Superior Court judge candidate qualifications similarly applied to, and rendered unconstitutional, the Legislative statute establishing the minimum qualifications for county sheriff. In rejecting Mr. Boyer’s argument, the Court of Appeal held the California Constitution expressly directs the state Legislature to provide for the election of a sheriff for each county, which means the Legislature can determine the qualifications for that office. No such delegation of constitutional authority existed for Superior Court judge. Therefore, the precedent Mr. Boyer relied upon did not apply for his situation.

Mr. Boyer then argued the minimum qualifications requirement violated the First Amendment in that it restricted the pool of sheriff candidates to law enforcement personnel only, thereby excluding civilian viewpoints from being heard. Mr. Boyer went even further to argue “candidacy for public office is a fundamental constitutional right.” The Court of Appeal relied on well-settled United States Supreme Court precedent to reject that argument. Candidacy for public office is not a fundamental constitutional right.

California Court of Appeal precedent also informed the court’s opinion. In 2003, a staunch gun rights advocate with no prior law enforcement experience attempted to run for Sheriff of Santa Clara County on the promise that he would approve the majority of concealed weapons permit applications. There, the plaintiff argued his First Amendment rights were violated because the qualifications requirement impaired access to the ballot. The Court of Appeal rejected this argument. The court maintained this position again in Mr. Boyer’s case.

According to the California Court of Appeal:

“There can be no doubt that the state has a strong interest in assuring that a person with aspirations to hold office is qualified to administer the complexities of that office. And the authority of the state to determine the qualifications of their most important government official is an authority that lies at the heart of representative government.”

Perhaps Shaquille O’Neal will have better luck in 2020.

For more information on Bruce Boyer v. Ventura County, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

William P. Curley III

Partner

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Schools And Public Agencies Face A Rise In Digital Copyright Infringement Claims For Use Of Protected Photos

April 2019
Number 19

Cease and desist letters alleging copyright infringement for the unauthorized use of digital photos-along with demands for settlement payments ranging from hundreds to tens of thousands of dollars-are being sent to public agencies. This trend seems to be on the rise, whether it is a journalism student’s use of a photo for the online student newspaper, or a social media manager’s use of a graphic for the agency’s Facebook feed. Although the initial demands can be quite high, including threats of hundreds of thousands of dollars in statutory damages if the copyright owner has to litigate the claims, sometimes the license fees can be negotiated down depending on the number or nature of infringing uses.

A contributing problem is the ease with which digital photos can be copied online. Additionally, it is increasingly simple to detect unauthorized online use. Advanced algorithms used in today’s Internet search engines make it easy to identify every unauthorized use of a photo online anywhere. Digital photos can also be copied from anywhere on the Internet using a snipping tool or by taking a screenshot and are quite tempting to those who want the perfect photo, but may not have given consideration to the intellectual property rights of the photo’s owner.

A number of law firms seem to be at the forefront of pursuing these claims. These attorneys identify the sites where unauthorized photos appear, the registrants for those sites, and the addresses where the demand letters can be sent. If you receive one of these letters, the first step in addressing the claim is to secure proof of copyright ownership and the lawyer’s authority to act on behalf of the copyright holder.

In addition to assisting public agencies with resolving the pending infringement claims, Lozano Smith is also working with clients to implement “best practices” to avoid future claims of copyright infringement. These best practices include, but are not limited to:

  • Do not use any pictures that are “copied and pasted” from other Internet sites.
  • Consider using only photos that are taken by someone associated with or hired by the agency department responsible for publication of the pictures.
  • If you find that the picture you want to use is “subject to copyright,” contact the copyright holder in advance and get permission or a license to use it.
  • Train staff, or in the case of school districts, students as well, regarding these issues. Focus training particularly on web designers, public information officers and journalism teachers.
  • Use the threat of copyright infringement as a “teaching opportunity” for students and staff to understand what is required to navigate the digital universe.

For more information about the legal requirements for use of copyrighted works or how to implement these and other best practices to avoid such claims, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app

Written by:

Harold M. Freiman

Partner

Lee Burdick

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Brown Act’s “Committee Exception” Does Not Apply To Special Meetings

March 2019
Number 18

A California appellate court has focused on the distinction between a regular meeting and a special meeting of the local legislative body when considering an exception to public comment under the Ralph M. Brown Act (Brown Act). In Preven v. City of Los Angeles (Preven), the Second District Court of Appeal found that the City of Los Angeles had improperly relied on the Brown Act’s “committee exception” to stop public comment during a special meeting regarding a topic that had properly been addressed by a committee composed of City Council members.

Background Information

The Brown Act requires that public agencies provide the public with an opportunity for participation in the legislative process. At a regular meeting, the public has the opportunity to comment on not only agenda items, but also any item within the subject matter jurisdiction of the public agency. During a special meeting, on the other hand, the governing body may limit public comment to only the items described on the agenda.

The Brown Act’s public comment requirement is found at Government Code section 54954.3. Subdivision (a) of that statute sets forth the “committee exception” and specifically references regular meetings:

However, the agenda need not provide an opportunity for members of the public to address the legislative body on any item that has already been considered by a committee, composed exclusively of members of the legislative body, at a public meeting wherein all interested members of the public were afforded the opportunity to address the committee on the item, before or during the committee’s consideration of the item, unless the item has been substantially changed since the committee heard the item, as determined by the legislative body.

Preven specifically focused on whether the exception applies to special meetings as well as regular meetings. The appellant in Preven filed a lawsuit against the City of Los Angeles after the City, citing the “committee exception,” had denied appellant the opportunity to comment at a special city council meeting because he had already spoken at a regular meeting of the City Council’s Planning and Land Use Committee the night before. The trial court ruled that the committee exception applied to both special meetings and regular meetings. The trial court reasoned that appellant had been afforded the opportunity to discuss the agenda item at the committee meeting the night before, and therefore could be barred from comment at the special meeting addressing the same agenda item.

On appeal, the appellate court found the trial court’s holding in error. It held that, pursuant to the plain language of Government Code section 54954.3(a), the “committee exception” does not apply to special meetings at all. The public is entitled to comment at special meetings even where the agenda item was covered at a prior committee meeting.

Takeaways

In light of this decision, a public agency subject to the Brown Act must take care in denying public comment pursuant to the “committee exception.” This exception only applies to regular meetings, and only applies to items which were previously discussed by a committee made up of board or council members, where the public was allowed to address the committee on those same items. The purpose of the Brown Act is to facilitate public participation with local government decisions, and improperly denying public comment could produce an adverse result.

If you would like more information about the decision in Preven or have any questions relating to exceptions to the Brown Act generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

William P. Curley III

Partner

Matthew M. Lear

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

PERB Decision Provides Guidance Addressing “Public Hearing” Requirement

March 2019
Number 17

In a recent decision, the Public Employment Relations Board (PERB) addressed the public hearing requirement an agency must satisfy before implementing its last, best, and final offer (LBFO), after completing applicable impasse procedures. In City of Yuba City (2018) PERB Dec. No. 2603-M, PERB upheld an administrative law judge decision dismissing an unfair practice charge brought against the City of Yuba City (City) by Public Employees Union Local 1 (Local 1) alleging violation of the Meyers-Milias-Brown Act (MMBA).

Background

Local 1 alleged that the City unlawfully failed to hold a public hearing before imposing a LBFO in violation of section 3505.7 of the MMBA. Government Code section 3505.7 provides that after completing any applicable impasse procedures, and no earlier than 10 days after the parties receive the factfinding report, the agency “may, after holding a public hearing regarding the impasse, implement its [LBFO]….” This case marks the first time PERB has considered violation of the public hearing requirement as a potential standalone violation of the MMBA.

Local 1’s allegations specifically charged that, by identifying the item on the City Council’s agenda as “Local 1 imposition,” rather than as a public hearing regarding the impasse, and by focusing on the need to impose terms rather than on the disputed issues, the City failed to follow the statutory procedures prescribed by the MMBA.

In rejecting this argument, PERB noted that the agenda and staff report described the parties’ bargaining history, and notified the public that the parties had reached impasse and exhausted impasse procedures. Additionally, the union admitted it had the opportunity to prepare for the Council meeting and had received the agenda and staff report. Further, the Mayor “opened up the public hearing” during the public portion of the meeting. Based upon these facts, PERB concluded that the City had satisfied section 3505.7’s requirement to conduct a public hearing regarding the impasse.

Local 1 also argued that the City did not intend to hold a public hearing regarding the impasse because (1) the “Local 1 imposition” item did not appear on the agenda where public hearings were required to be listed per the City’s local rules and (2) the City failed to provide adequate notice required under the Brown Act of a public hearing regarding the impasse. PERB also rejected this argument on the basis that the City had adequately informed the public that the City Council would be considering imposing the LBFO and the opportunity for public comment had been provided.

In other words, the fact the item was not described as a “public hearing” on the agenda at a particular location on the agenda did not establish a violation of section 3505.7’s public hearing requirement under the facts. Rather, PERB clarified that section 3505.7’s public hearing requirement is satisfied when the agency (1) provides adequate notice to the public that it intends to consider imposing terms and conditions on employees (the LBFO) and (2) allows public comment concerning the proposed imposition of the LBFO.

Takeaways

While the PERB’s decision was dependent upon the facts in this case, there are some important takeaways:

  1. After completing impasse procedures and before imposing an LBFO, agencies should ensure that section 3505.7’s public hearing requirements are met. To reduce exposure to similar claims, the agenda should clearly describe the item as a “public hearing regarding impasse pursuant to Government Code section 3505.7,” or words to that effect. Local rules pertaining to agenda requirements (e.g. location of hearings on agenda and timely posting, etc.) should be followed. Please note the Educational Employment Relations Act does not appear to have a similar public hearing requirement.
  2. The staff report should describe the parties’ bargaining history, impasse, and compliance with applicable impasse procedures.
  3. The item should be considered and deliberated upon in open session during a regular meeting in which public comment is invited.
  4. The government agencies should ensure the union is provided with sufficient time to prepare for the public hearing by ensuring the agenda is timely posted and all documents supporting the agenda item are timely provided to the union.

For more information about this decision or about labor law questions in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Jenell Van Bindsbergen

Partner

Meera H. Bhatt

Associate

©2019 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.