Sacramento Lawyer Magazine September/October by Sacramento County Bar Association

SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

2015 SCBA Judge of the Year

Robert Hight www.sacbar.org

Photo by Mark Long-Eleakis & Elder Photography

September/October 2015

The Voting Rights Act of 1965 SCBA Golf Tournament Hits Another Hole in One

EDITOR’S MESSAGE Betsy S. Kimball

by Betsy S. Kimball

Editor-in-Chief

his is the annual “Judge of the Year” issue of the magazine. Sincere congratulations to Presiding Judge Robert Hight for the award. I don’t know Judge Hight personally; but I do know how comparatively well the Sacramento County Superior Court has weathered the storm of the past years’ funding cuts. That, of course, is due to the efforts of many people, but for the past two years, it is Judge Hight who has been the captain of the ship. Further my comments about how great our bench is about working with the bar–what a treat it was when Judge Kevin Culhane stood in for several songs with Bob Bale’s band. See p. 9. The judge stayed at the dinner all evening. That, my colleagues, was an opportunity to chat with/get to know one of the leaders of our court. Welcome to the editorial staff another of my professional responsibility students from McGeorge: Narek Avetisyan. Narek’s a Fresno State grad, and President of the McGeorge Business Association, working at Cable Gallagher. We chatted about Fresno at the beginning of the class. I had no idea then that Narek had immigrated to the U.S. only 10 years earlier. So, Narek, this nice introduction means that I no longer owe you your 100% Class Attendance Prize of a $5 gift certificate for the Hampton Inn off CA41 and Herndon Avenue–the one right across the street from the Fresno Endoscopy Center. To more serious matters. 2015 is the 50 year anniversary of the Voting Rights Act of 1965–all well covered by the media. We mark the anniversary here in an article cobbled together from various sources, including comments from a lawyer who was with the U.S. DOJ’s fledgling Civil Rights Division at the time, litigating across the South, making change happen: Pacific McGeorge Professor Brian Landsberg. There will be no byline on the article because it is more of an assemblage of what others have written, including Professor Landsberg himself. Professor Landsberg beat me to Alabama by about 15 years. After I passed

the California Bar, I packed up an old Ford station wagon that I bought from my brother-in-law for $200 and headed for Birmingham, Alabama to work for what was then called “Legal Aid.” I am a native Berkeleyan. I had never been south of Northern Virginia. I had long hair and liberal politics, but no student loans to repay, so off I went. The Ford stopped running somewhere in Western Alabama, near Selma, as it turned out. I had it towed to a small garage. I could barely communicate with the white tow truck driver and the black mechanic. What world had I entered? By this time, at the end of the 1970s, all the “whites only” signs were long gone. Turns out signs weren’t needed. When I tried to rent an apartment, I was required to apply in person. No person of color could rent where I lived. I first returned to Birmingham about 15 years ago, and that had all changed. I wept for joy when I drove past the basketball court in my old neighborhood and saw five guys of all different colors playing. I stopped and tried to explain myself. They looked at me like I was from Mars. I did not care. Change had happened because people were working long before I arrived and long after I left Alabama. We lawyers are the champions of civil rights–the rights of people on all sides of the political spectrum–those who believe that government is the oppressor and those who look to government for freedom from oppression. I have been reading Nick Kristoff’s 2014 book, A Path Appears. If asked, I would say that it is about ordinary people who make all the difference in the lives of others–and not by doing extraordinary things–but just by seeing a need or something that isn’t right, and trying to do something about it. I did not ask him, but I would bet that Prof. Landsberg sees himself as a regular guy who just tried to do what he thought was right.

SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

EDITOR-IN-CHIEF Betsy S. Kimball Editor@sacbar.org ASSOCIATE EDITOR Ellen Arabian-Lee STAFF EDITORS Bryan Hawkins, Heather Cline Hoganson, Maureen Onyeagbako, Roya Bagheri, Shoeb Mohammed, Narek Avetisyan MAGAZINE COMMITTEE Betsy S. Kimball, Samson R. Elsbernd, David Graulich, Coral Henning, Heather Cline Hoganson, Yoshinori H.T. Himel CREATIVE DIRECTOR Mary J. Burroughs (916) 564-3780 - mburroughs@sacbar.org PRODUCTION DESIGN Milenko Vlajsavljevic ADVERTISING SALES EVENTS - MEMBER CLASSIFIED ADS (916) 564-3780 - scba@sacbar.org SCBA OFFICERS Angela Lai - President Heather Hoganson - 1st Vice President Sabrina Thomas - 2nd Vice President Sil Reggiardo - Secretary Treasurer SCBA EXECUTIVE DIRECTOR Mary J. Burroughs - mburroughs@sacbar.org

Sacramento Lawyer (USPS 0981-300) is published bi-monthly by the Sacramento County Bar Association, 1329 Howe Avenue, #100, Sacramento, CA 95825. Issn 1087-8771. Annual subscription rate: $6.00 included in membership dues, or $24.00 for nonmembers. Periodicals postage paid at Sacramento, California. Postmaster: Send address changes to Sacramento Lawyer, 1329 Howe Avenue, #100, Sacramento, CA 95825. Copyright 2015 by the Sacramento County Bar Association. Each author’s commentary reflects his/her individual opinion only and not that of his/her employer, organization with which he/she is affiliated, or Sacramento Lawyer magazine, unless otherwise stated.

CONTENTS SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

SEPTEMBER / OCTOBER 2015 VOLUME 116, NUMBER 5

COVER STORY 18 2015 SCBA Judge of the Year – Robert Hight

FEATURE STORIES 10 The Voting Rights Act of 1965

SECTION & AFFILIATE NEWS 22 The Public Law Section Hears Interesting Facts about the ABC

BARRISTERS’ NEWS 28 Barristers’ Club Update

EVENTS 8

SCBA Golf Tournament Hits Another Hole in One

ETHICS 30 The Ethical Lawyer, Rule 3-310(C), Avoid the Pitfalls of Joint Representation of Clients

ANNOUNCEMENTS 14 SCBA Announcements

DEPARTMENTS 4 Editor’s Message 6

8 26

President’s Message

COVER

2015 SCBA Judge of the Year Sacramento Lawyer magazine welcomes letters and article suggestions from readers. Please e-mail them to editor@sacbar.org. The Sacramento County Bar Association reserves the right to edit articles and letters sent in for publication. Please contact the SCBA at 916-564-3780 for deadline information, fax 916-564-3787, or email mburroughs@sacbar.org. Web page: www.sacbar.org. Caveat: Articles and other work submitted to Sacramento Lawyer magazine become the copyrighted property of the Sacramento County Bar Association. Returns of tangible items such as photographs are by permission of the Executive Director only, by pickup at the SCBA office only.

Robert Hight

www.sacbar.org | September/October 2015 | SACRAMENTO LAWYER

PRESIDENT’S MESSAGE Angela Lai

President,

The Joy of Public Service

Sacramento County Bar Association

Not only a duty, it’s our obligation “Certainly, life as a lawyer is a bit more complex today than it was a century ago. The ever-increasing pressures of the legal marketplace, the need to bill hours, to market to clients, and to attend to the bottom line, have made fulfilling the responsibilities of community service quite difficult. But public service marks the difference between a business and a profession. While a business can afford to focus solely on profits, a profession cannot. It must devote itself first to the community it is responsible to serve. I can imagine no greater duty than fulfilling this obligation.” – Justice Sandra Day O’Connor

SCBA members at My Sister’s House “Art with a Heart” Art Show: Elizabeth Sarine, Latika Sharma, Natalie Butcher, Derek Ledda, Angela Lai with daughter Valerie, Gloria Ochoa, Darrel Woo, Nancy Lee, & Administrative Law Judge Tim Aspinwall

ast night, I attended a fundraising art show held by My Sister’s House, a local non-profit organization that serves women and children impacted by domestic violence, sexual assault, and human trafficking by providing shelter, job training, and community services. Many of my fellow SCBA members were in attendance as well. A community member came up to me and asked: “So how did you

find out about My Sister’s House in the first place?” I looked around the room, and saw many of the first mentors and friends I met after I first joined the Sacramento legal community. Indeed, lawyers played a critical role in identifying our community’s need for an agency to address domestic violence. Lawyers helped found My Sister’s House. Lawyers have played key leadership roles on its board of directors and advisory committee since

SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

its inception, including board president Darrel Woo, recipient of this year’s SCBA Pro Bono Award. In 2007, SCBA affiliate Asian/Pacific Bar Association of Sacramento (ABAS) founded a weekly pro bono legal clinic at My Sister’s House, which continues to operate to this day. This is just one example of the many ways we devote ourselves to the community we are responsible to serve. As President of the SCBA, I have the privilege of working with countless volunteers. Between our board, divisions, sections, and committees, the SCBA relies on at least 150 volunteers who generously donate their time, energy, and expertise so the SCBA can better serve our legal community and the community at large. I continue to be inspired by the many things to which our lawyers and judges devote themselves, not only to the SCBA and the legal community, but also to the community at large. At last year’s SCBA board retreat, Juvenile Court Presiding Judge Stacy Boulware-Eurie spoke of her regular meetings with at-risk children and their families to talk about the impact of truancy through the nationally recognized Partners Against Chronic Truancy (PACT) developed by the

Sacramento County District Attorney’s Office, the Public Defender, the Den California State Bar Trial Lawyer Hall of Fame, 2001 partment of Human Assistance, local n California State Bar Trial Lawyer Hall of Fame, 2001 n Fellow, American College of Trial Lawyers, since 1986 school districts, the Sacramento n Fellow, American and College of Trial Lawyers, since 1986 n Northern California Super Lawyers since inception County Superior Our since judges n Northern CaliforniaCourt. Super Lawyers inception n Best Lawyers in America since inception, recently: n Best Lawyershelped in America since inception, recently: and lawyers found and conu Lawyer of the year, Real Estate Litigation, tinueuknows to support the Lawyer of the year,law Realacademies Estate Litigation, Who the vagaries ofat litigation Sacramento, 2014 ion C.K. McClatchy Sacramento, 2014 High School and Flou Lawyer of the Year, Commercial Litigation, than aLitigation, trial ofbetter the From Year, Commercial u Lawyer Sacramento 2010 School. educating girls lawyer? yer? rin High Sacramento 2010 Bet the Company Litigation, 2012, 2013, 2014 u in Kenya to providing for the homeu Bet the Company Litigation, 2012, 2013, 2014 u Commercial Litigation, 2012, 2013, 2014 less uinCommercial Sacramento, most non-profit Litigation, 2012, 2013, 2014 u Litigation-Banking and Finance, 2012, 2013, 2014 organizations have lawyers who 2012, serve2013, 2014 and Finance, u Litigation-Banking u Litigation-Real Estate, 2012, 2013, 2014 Estate, 2012, 2013, 2014 on their boards and advisory boards. u Litigation-Real We help serve the poor and the underprivileged. We are Big Brothers and Big Sisters. We are coaches and Girl Scout troop leaders. So, how did I come about helping serve victims of domestic violence, sexual assault, and human trafficking with My Sister’s House? I started my legal career working Joe@GenshleaLaw.com in the Domestic O/ (916) 525-8444 C/ (916) 825-9952 F/ (916) 525-8446 Violence Unit at the District Attorney’ s C/ (916)Office 825-9952 F/ (916) 525-8446 in Jefferson County, Wisconsin. 400 Suite 1750 / Sacramento, CA 95814 www.genshlealaw.com EvenCapitol though Mall I left/ criminal prosecuo, CA 95814 www.genshlealaw.com tion, I remained committed to efforts Tom Wagner - SCBA 2015 to combat domestic violence. Sacramento County Public Law Library What is your favorite giving orgaSCBA 2015 nization? Let us know, and consider Half Page Ad: your story in the Sacramento sharing Joe Genshlea Law and Mediation Lawyer magazine.

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EVENTS

SCBA GOLF TOURNAMENT HITS ANOTHER HOLE IN ONE!

Heather Hoganson is the SCBA First

by Heather Hoganson

ith the Goodyear blimp floating over the U.S. Senior Open a mere mile away, the Third Annual SCBA Golf Tournament captured Sacramento’s golf fever on Friday, June 26, 2015. Despite the June heat, there were plenty of high spirits and low scores, as about 100 attorney golfers played at Haggin Oaks Golf Complex– three groups of golfers ending with a score of 60. SCBA goodie bags with hats, shirts, water bottles, and other sundries got rave reviews from attendees. After some great golfing, including a stop at the ever-popular Spirits Hole, cocktails and dinner were served. A silent auction and raffle were held. An added bonus this year was live music provided by Res Ipsa Loquitur (recently featured in the March/April issue of this publication), fronted by Robert (Bob) Bale of Dreyer Babich Buccola Wood Campora, LLP. A special guest appearance by Judge Kevin Culhane on the guitar, playing a few songs with Res Ipsa was mightily cheered by attendees. A short video of the day is up on the SCBA website, at sacbar. org, where you can see and hear a slice of the fun. Mark Velasquez, Golf Committee Co-Chair, extolled the virtues of the event: “It was simply the easiest way to promote civility, do some networking, promote law student outreach, all while playing golf with other members of the legal community.” Special thanks go to the Golf Committee Co-Chairs, Marc Velasquez and Executive Director Mary Burroughs, and to the SCBA staff for a fabulous event.

Vice-President. She may be contacted at Heather.Hoganson@ABC.ca.gov.

2015 SCBA GOLF TOURMANT

WINNERS Closest to the Pin on Hole #16 – Winner, Robert Miller Straightest Drive on Hole #18 – Winner, Stephanie Rice Longest Drive Women on Hole #11 – Lisa Ventura Longest Drive Men on Hole # 11 – Jake Vinz Putting Contest Winner – Carol Delzer First Place “Best Ball Scramble” Alan Phillips, Stephanie Rice, Munko Boyd, Blake Phillips Second Place “Best Ball Scramble” David Allard-Reyes, Scott Brody, Luke Allard, Andy Laughton

If you would like to be on the SCBA Sports and Leisure Committee, please contact Mary Burroughs at the SCBA office.

SACRAMENTO LAWYER |September/October | September/October 2015 2015 ||www.sacbar.org www.sacbar.org

FRI

DA YOUR Hag Y, C gin MA ALE ND Oa ks G Y 2 AR S olf 0, Com 20 ple 16 x

Judge Jim Mize contemplates his weekly basketball game

Res Ipsa Loquitur

www.sacbar.org www.sacbar.org ||September/October September/October 2015 | SACRAMENTO LAWYER

FEATURE STORY

THE VOTING RIGHTS ACT OF 1965 EDITORâ&#x20AC;&#x2122;S NOTE: We mark the 50th anniversary of the Voting Rights Act of 1965, with fragments

of what others have written and said and by hailing Professor Brian Landsberg, a lawyer who was a witness to what we now mark.

From the collection of Prof. Landsberg: Alabama voter registration applications as they evolved over the decades to deny the right to vote and then, at last, to comply with the law.

SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

FEATURE STORY THE SCENE Elmore County, Alabama, circa 1960.To be eligible to vote, the Alabama Constitution and statutory law required, inter alia, that the applicant be able to read and write any article of the federal constitution and not be an idiot or insane person.1 Between 1959 and 1964, the Elmore County registrar of voters accepted 95 percent of white applicants’ registration forms and rejected 93 percent of the forms submitted by black applicants.2 During one five-month period in 19631964, at least 25 percent of the rejected black applicants were school teachers.3

THE VOTING RIGHTS ACT “By 1965 concerted efforts to break the grip of state disfranchisement had been under way for some time, but had achieved only modest success overall and in some areas had proved almost entirely ineffectual.” 4 The United States Department of Justice (DOJ) describes what would now be called a “whack-a-mole” scenario. The DOJ’s “efforts to eliminate discriminatory election practices by litigation on a case-by-case basis had been unsuccessful in opening up the registration process; as soon as one discriminatory practice or proce-

dure was proven to be unconstitutional and enjoined, a new one would be substituted in its place and litigation would have to commence anew.”5 “Finally, the unprovoked attack on March 7, 1965, by state troopers on peaceful marchers crossing the Edmund Pettus Bridge in Selma, Alabama, en route to the state capitol in Montgomery, persuaded the President and Congress to overcome Southern legislators’ resistance to effective voting rights legislation. … [¶] Congress determined that the existing federal anti-discrimination laws were not sufficient to overcome the resistance by state officials to enforcement of the 15th Amendment. … [¶] President Johnson signed the resulting legislation into law on August 6, 1965. Section 2 of the Act, which closely followed the language of the 15th Amendment, applied a nationwide prohibition against the denial or abridgment of the right to vote on the literacy tests on a nationwide basis.”6 7

PROFESSOR LANDSBERG’S PERSPECTIVE Brian Landsberg, Distinguished Professor of Law at Pacific McGeorge, is a native of Sacramento, a Cal and Boalt graduate. Admitted to the bar in 1963, he joined the Civil Rights Division of the DOJ in 1964. Later that year, he checked in to the Holiday Inn in Tuscaloosa, sent from Washington, D.C. to enforce the just-enacted (and widely

www.sacbar.org | September/October 2015 | SACRAMENTO LAWYER

FEATURE STORY unpopular) Civil Rights Act of 1964.8 “When I first visited Alabama as a lawyer in the Civil Rights Division,” states Landsberg “I was appalled at what I saw. I knew there was a racial caste system, but had no idea of its pernicious effects on African-American Alabamans. In the years since 1964, I witnessed remarkable change. The catalyst for change was the civil rights movement─leaders like Dr. Martin Luther King, Jr. and John Lewis, grass roots organizers such as Albert Turner and Dr. C.G. Gomillion, and brave farmers and teachers and laborers like Joe Bizell and Ella Stewart who insisted on the right to vote, to send their children to desegregated schools, to use public accommodations, and to get a decent job. The law was the instrument that secured these rights. Lawyers drafted the legislation, litigated the cases, drafted the decrees, enforced the decrees.” The overt discrimination that Professor Landsberg and his colleagues fought is history. Challenges to citizen enfranchisement remain. “[W]e must tackle the inequalities

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that remain,” states Landsberg. “Every ethical lawyer contributes to equal justice by insuring fair treatment for his or her client. You don’t have to work for a civil rights organization or law enforcement agency to use the law as an instrument of justice.” 1 Ala. Const. (1901), art. 8, §§ 177-196; Tit. 17, Code of Al. (1940), §§ 1-426; see United States v. State of Alabama (M.D.Ala. 1966) 252 F.Supp. 95, 96. 2 Rodriguez, Cristina, From Litigation, Legislation: A Review of Brian Landsberg’s Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act (June 20, 2008). Yale Law Journal, Vol. 117, 2008; NYU Law School, Public Law Research Paper No. 08-20, 1140 [available at http://ssrn.com/abstract=1148827], citing Landsberg, Free at Last to Vote: The Origins of the 1965 Voting Rights Act (2007) 103; see also, United States v. Cartright (M.D.Ala. 1964) 230 F.Supp. 873, 875 [“Elmore County, Alabama, has a voting-age population of 17,318, of which 12,510 are white persons and 4,808 are Negroes. As of December 3, 1963, 11,134 (89.0%) of the white persons and 363 (7.5%) of the Negroes were registered. Since December 1, 1959, the Board [of Registrars] has processed 2,388 applications filed by white persons, of which 2,277 were accepted and registered to vote. The Board rejected 111 applications filed by white persons, or 4.6% of those filed. During this same period 240 applications were filed by Negroes; of these, only 16 were accepted, the Board rejecting 224, or 93.3% of those filed. From October 1, 1963 to February 29, 1964, the Elmore County Board of Registrars has registered 7 Negroes and approximately 772 white persons.”]. Ed’s note: Cartright was decided by U.S. District Judge Frank M. Johnson—a jurist legendary to civil rights lawyers of the time and decades later.

FEATURE STORY 3 United States v. Cartright, supra, 230 F.Supp. at pp. 875876. 4 http://www.justice.gov/crt/about/vot/intro/intro_b.php <August 1, 2015>. 5 Id. 6 Id. 7 The preclearance formulas provided in section 5 of the Act were ruled unconstitutional in Shelby County v. Holder (2013) __U.S.__, 133 S.Ct. 2613. But in a case to watch, on August 5, 2015, the Fifth Circuit affirmed a federal trial court’s finding that Texas’s strict photo ID law violates section 2 of the Voting Rights Act. The case is Veasey v. Abbott, no. 14-41127. See, Erik Eckholm, “Texas ID Law Called Breach of Voting Rights Act,” N.Y. Times (Aug. 5, 2015), available at http://www.nytimes.com/2015/08/06/ us/appellate-panel-says-texas-id-law-broke-us-votingrights-act.html?_r=0. 8 Crowder, “McGeorge professor recalls trip to the south 50 years ago to enforce the Civil Rights Act,” Sacramento Bee, July 2, 2014, available at http://sacb.ee/1F61.

Line to register in Perry County, Alabama, Feb. 1965

www.sacbar.org | September/October 2015 | SACRAMENTO LAWYER

ANNOUNCEMENTS

SCBA ANNOUNCEMENTS Judge Lawrence K. Karlton

The SCBA notes with regret the passing, in July, of Judge Lawrence K. Karlton, an extraordinary jurist.

Email to the Editor and several others I wanted to tell you how wonderful it was to see the Masters of America Art Platinum Award winning piece on the cover the September/October 2015 issue, along with the great coverage of the event in the magazine. The story and pictures were great, and I loved that the student winners were prominently displayed on a separate page. Judge Judy Holzer Hersher Superior Court of California, County of Sacramento

SCBA Diversity Hiring and Retention Program Wins Prestigious Award The SCBA’s Diversity Hiring and Retention Program has been selected to receive the 2015 State Bar Diversity Award for its “long term, sustained accomplishments toward increasing diversity in the legal profession.” On behalf of the SCBA diversity hiring committee members, the firms which have participated in our program for all of these years, the SCBA leadership and staff, we are delighted and very proud of this recognition. It acknowledges the work and vision of the program’s past and, we hope, will serve as a springboard for the SCBA to expand and grow the diversity hiring and retention program in the future. The award will be presented at the state bar’s annual meeting in Anaheim, on Saturday, October 10th, during the reception following the annual program of the Council on Access & Fairness (featuring Prof. Lani Guinier as the highlight speaker). The reception is open to the public, so if you are attending the annual bar convention this year, please plan to attend and give us a great cheer. Mary Burroughs Executive Director of the SCBA

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100% SACRAMENTO COUNTY BAR CLUB ASSOCIATION SCBA 100% Club firms are firms with five or more attorneys with 100 percent membership in the SCBA. We thank these firms for their generous support through their membership dues. If your firm would like to be added to the list of SCBA 100% Club Firms, contact the SCBA staff today.

Abbott & Kindermann LLP Bartholomew & Wasznicky LLP Bartkiewicz Kronick Shanahan Best Best & Krieger LLP Boutin Jones Inc. CA Dept. of Human Resources (CalHR) CA Dept. of Veterans Affairs CA State Lands Commission California Farm Bureau Federation Carothers DiSante & Freudenberger LLP Carroll Burdick & McDonough Chang Ruthenberg & Long Cook Brown LLP Cuneo Black Ward & Missler Delfino Madden O’Malley Coyle & Koewler LLP Downey Brand, LLP Dreyer Babich Buccola Wood Campora, LLP Ellison Schneider & Harris Evans Wieckowski Ward & Scoffield LLP Felderstein Fitzgerald Willoughby & Pascuzzi LLP Greenberg Traurig, LLP Gurnee, Mason & Forestiere, LLP Hansen Kohls Sommer & Jacob LLP Hanson Bridgett LLP Hardy Erich Brown & Wilson Hefner Stark & Marois LLP Hiroshima Lewis & Daggett Jacobsen & McElroy PC Kennaday Leavitt & Daponde PC King Williams & Gleason LLP Klinedinst, PC Knox Lemmon & Anapolsky Kronick Moskovitz Tiedemann & Girard Langenkamp Curtis & Price LLP Lauria Tokunaga Gates & Linn LLP Legacy Law Group Longyear O’Dea & Lavra LLP Mastagni Holstedt, APC Matheny Sears Linkert & Jaime, LLP Meegan Hanschu Kassenbrock Murphy Austin Adams Schoenfeld LLP Nossaman, LLP Olson Hagel & Fishburn LLP Palmer Kazanjian Wohl Hodson LLP Porter Scott Randolph Cregger & Chalfant, LLP Rediger McHugh & Owensby, LLP Remy Moose Manley LLP Renne Sloan Holtzman Sakai LLP Simas & Associates, LTD Singer & Associates Law Office Smith McDowell & Powell Somach Simmons & Dunn Spinelli, Donald & Nott Stoel Rives LLP Thomas Law Group Timmons, Owen, Jansen & Tichy, Inc. Wagner Kirkman Blaine Klomparens & Youmans LLP Webb & Tapella Weintraub Tobin Wilke Fleury Hoffelt Gould & Birney, LLP Woodruff O’Hair Posner & Salinger Inc

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THE STATE BAR OF CALIFORNIA’S COMMITTEE ON MANDATORY FEE ARBITRATION INVITES THE SACRAMENTO COUNTY BAR ASSOCIATION AND STATE BAR FEE ARBITRATORS TO ATTEND

FEE ARBITRATOR TRAINING Tuesday, September 29, 2015 5:00 p.m. – 8:00 p.m. Dante Club Sacramento 2330 Fair Oaks Blvd. Sacramento, CA 95825

This training session is offered to all prospective and current volunteers who arbitrate attorney-client fee disputes for the Mandatory Fee Arbitration Programs through the Sacramento County Bar Association and the State Bar of California. The course will provide the basic training required to serve on a bar program’s fee arbitration panel. Non-lawyer (lay) arbitrators, in addition to attorneys, are encouraged to attend this valuable training session and join the Mandatory Fee Arbitration Program. Speakers will address recent developments in fee arbitration and other important topics such as: Writing an Enforceable Award Statute of Limitations Effect of Conflicts of Interest Arbitrator Disclosure Requirements Controlling the Proceeding

FREE MCLE CREDIT Members of the State Bar of California will receive 2.75 hours Mandatory Continuing Legal Education credit (includes 1.0 hour Legal Ethics). [The State Bar of California is a State Bar of California MCLE approved provider.]

To reserve a space please contact The Sacramento County Bar Association at: (916) 564-3780 or mfenchen@sacbar.org For additional information, please call Doug Hull (415) 538-2015 at the State Bar of California.

SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

SACRAMENTO COUNTY BAR ASSOCIATION

In Appreciation of Our Dedicated and Supportive 2015 Mandatory Fee Arbitration Panel Panel Chair Kenneth E. Bacon, Esq.

Panel Vice Chair Timothy L. Zeff, Esq.

Attorney Arbitrators Suzanne Alves, Esq Stephen J. Beede, Esq. James J. Banks, Esq. Virginia Cale, Esq. Rick Cohen, Esq. June Coleman, Esq. Phillip M. Cunningham, Esq. Linda Dankman, Esq. Lawrence M. Daugherty, Esq. Michael L. Faber, Esq. John Fredenburg, Esq. Thomas M. Garberson, Esq. Theresa Carter Geoffroy, Esq. Meriam Hansen, Esq. Justin Hein, Esq. Susan C. Hill, Esq. Jonathan P. Huber, Esq. Marc L. Hughes, Esq. Jason Jasmine, Esq. Pamela Jones, Esq. Steve A. Lewis, Esq. Jon Lydell, Esq. Ken Malovos, Esq. J. Patrick McCarthy, Esq. Elizabeth N. Niemi, Esq. Linda Patrick, Esq. Barbara Peyton, Esq. Bret Rossi, Esq. Phil Rhodes, Esq. Patricia Tweedy, Esq Weiru Wang, Esq.

Lay (Non-Attorney) Arbitrators George Bradshaw Craig Kramer Bill Martin James Milbradt Steve Watson

Thank You!

Women Lawyers of Sacramento

will honor the

California Supreme Court

SAVE THE DATE November 3, 2015 5:00-7:00 p.m.

Stanley Mosk Library and Courts Building Foyer 914 Capitol Mall, Sacramento Reception will follow the Courtâ&#x20AC;&#x2122;s completion of oral arguments and chambers conference.

Tickets will be available October 1st. For information about the event, please contact: Jennifer Hartman King (jhartmanking@kwgattorneys.com) or Stephanie Ogren (sogren@delfinomadden.com)

WOMEN LAWYERS OF SACRAMENTO THANKS ITS GENEROUS SPONSORS:

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COVER STORY

2015

Judge Allen H. Sumner sits in department 9 of the Sacramento County Superior Court.

SACRAMENTO COUNTY BAR ASSOCIATION

JUDGE OF THE YEAR

Robert Hight J

udge Robert Hight, Sacramento’s low-key presiding judge, is known as a master of the deal. But his ability to help parties find common ground and workable solutions predates his time on the bench. Appointed by Governor Gray Davis in 2003, Judge Hight comes from an impressive background in state government. He was Director of the Department of Fish and Game from 1999, until his appointment to the bench. Before his tenure at the Department of Fish and Game, he served 22 years as Chief Counsel of the State Lands Commission and then five years as its Executive Officer. In both positions, he brokered historic agreements preserving California’s environment and benefitting the taxpayers, including: • The $500 million acquisition of 10,000 acres of endangered oldgrowth redwoods (some over 2000 years old) in Humboldt County commonly called “Headwaters,” the habitat for several endangered species; • Restoration of 500 acres of Bolsa Chica wetlands near Huntington Beach; • Resolution of California’s 21-year litigation against the seven major oil companies, obtaining over $300 million for the taxpayers and

•

10,000 acres of environmentally sensitive land for the State of California; and Settlement of the state’s claims against the estate of Howard Hughes, acquiring 250 acres of fragile wetlands at Playa Vista for the citizens of California, one of the last remaining wetlands area in the Los Angeles Basin.

“He is the most accomplished public servant I have known.” Winston Hickox

“I believe agreement between the parties is more important than winning an argument,” Hight explained. “Both sides must feel they achieved a fair deal. That is the way to build consensus.” Winston Hickox, former Secretary of the California Environmental Protection Agency, who worked with Judge Hight on many environmental

SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

by Judge Allen H. Sumner

projects, said “I have known Judge Hight since the mid-1980’s. He is extremely bright, a creative problem solver, laser focused, someone who excels at getting things done, and always balanced in his approach.” Hickox observed, “He is the most accomplished public servant I have known.” Judge Hight’s friendly manner reflects his small town background. He grew up in Alturas in Northern California where his family owned a restaurant. “It was like a big family,” Hight recalled. “You knew everyone.” With Hight’s Café just a block from the courthouse, attorneys and the one judge for Modoc County ate there often, discussing the law and their cases. “I learned the law at a personal level,” Hight explained. “These were disputes involving people in our town who would see each other the rest of their lives, attending the same church and sending their children to the same school. The law was not a battle to be won at all costs, but a tool to help neighbors resolve their problems.” Judge Hight obtained his undergraduate degree from Pacific University in Forest Grove, Oregon, and graduated from Pacific McGeorge School of Law. Upon his appointment to the bench Judge Hight handled criminal trials and served two years in family

COVER STORY

www.sacbar.org | September/October 2015 | SACRAMENTO LAWYER

ar, Commercial Litigation,

Litigation, 2012, 2013, 2014 ation, 2012, 2013, 2014 COVER STORY g and Finance, 2012, 2013, 2014 state, 2012, 2013, 2014

law before moving to a civil assignment. “I requested civil trials because I enjoy the challenge of civil litigation, “Both sides must feel while having the ability to find resoluthey achieved a fair deal. tions the parties could accept,” he said. “I have settled far more cases than I That is the way to have tried.” Roger Dreyer, of Dreyer Babich build consensus.” 916) 525-8446 Buccola Wood Campora, LLP, describes Judge Hight as a “classy gentleman” enshlealaw.com but “wicked smart.” “He is always courthouse, expected to break ground friendly, polite and honest to a fault. in 2017. Drawing on his experience You know you are getting the truth. He with state government, Judge Hight is firm and fair-minded in his rulings, persuaded the State Architect to revise but I have never seen him when he is outdated requirements that would have not smiling. It is fun to appear in his imposed needless costs and reduced department. When the judge civil,Ad: the useable space of every courtroom. 1/3 isPage the parties have to be.” said Jay-Allen Eisen“Everyone Law Corp adwe had to accept the old Elected presiding judge in 2014, rules, even though no one had asked July/August 2014 issue MAGAZINE Hight most recently focused his talents about changing them,” Judge Hight reon planning Sacramento County’s new called. “When we explained our posi-

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Certified Appellate Law Specialist State Bar of California, Board of Legal Specialization DATE

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Over 130 Reported Decisions, including:

McAdams v. Monier, Inc., 182 Cal. App.4th 174 (2010) (Consumer Class Action) Katiuzhinsky v. Perry, 152 Cal.App.4th 1288 (2007) (Medical Damages) Hahn v. Mirda, 147 Cal.App.4th 740 (2007) (Medical Malpractice, Loss Of Consortium) Hawkins v. Wilton, 144 Cal.App.4th 936 (2006) (Landlord Liability) Bunch v. Hoffinger Ind., Inc., 123 Cal. App.4th 1278 (2004) (Products Liability)

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SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

tion and the problems posed, the State Architect was most helpful in coming up with new designs meeting both of our needs.” Future courthouses around the state will now benefit from Judge Hight’s negotiating skills. Kevin R. Culhane, Assistant Presiding Judge for the Sacramento County Superior Court, said of Presiding Judge Hight “We are good friends and have an extremely close working relationship. We approach issues as a team. He knows how important it is for those who follow him to understand the reasons why decisions were made today.” Presiding Judge Hight has made assigning civil trials a priority. “I appreciate the difficulty attorneys face in preparing their cases for trial, particularly scheduling their experts’ costly, limited time,” Hight explained. “It is important to give them a date certain. This is also a tremendous help in encouraging settlements.” Under his tenure as presiding judge, 95 percent of civil cases have been sent to a courtroom for trial on the date assigned. Dreyer observed, “Judge Hight has been a tremendous presiding judge, working tirelessly to keep the civil courts open in the face of budget cuts. Sacramento is unique in the state in being able to keep civil cases going because Judge Hight recognizes that administering justice is more than just putting people in jail.” Judge Hight also brought his executive experience to bear on improving the court’s administrative procedures. For example, in November 2014, the Family Law Court had a backlog of 2,200 judgments, resulting in a sixmonth wait for processing. He reduced this backlog by revamping the processing system. Today judgments are entered within one month of filing. Similarly, when Judge Hight took office as presiding judge, motions for summary judgment and demurrers were being set for hearing nine months to

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one year from filing. These calendars are now current. Judge Hight has also promoted the Expedited Jury Trial Program, offering “one-day” jury trials. He presided over some of the first trials, providing young attorneys experience with every step of a jury trial in one day. “These one-day trials allow new attorneys to gain valuable experience with cases that would otherwise never get their day in court,” Judge Hight explained. Robert Zimmerman, of Schuering Zimmerman & Doyle, LLP, observed, “The Civil Division of the Sacramento County Superior Court has never run more smoothly. With a true sense of judicial fairness and an easy smile, Judge Hight has brought civility and efficiency to an overworked and underfunded system. During his tenure nearly all civ-

il cases have found a courtroom waiting as scheduled. This has removed the rancor, cost, and friction of a congested civil trial system where courtrooms are often not available. This allows justice to be a proper means to an end.” Zimmerman concluded, “Whether a trial judge or a presiding judge overseeing a civil system that handles 8,000 filings per year, Judge Hight has earned the respect and admiration of all who appear before him. With a reputation as a ‘deal maker’ he is always available for last minute attempts at resolution and has been successful in any number of thought to be impossible settlements.” Judge Hight has also overseen innovation in Sacramento’s criminal courts, presiding over implementation or expansion of several collaborative courts, such as Mental Health, Reentry, Veter-

ans Treatment, Commercially Sexually Exploited Children and Reducing Sexual Exploitation and Trafficking. These courts provide intense counseling and supervision tailored to the needs of each defendant as a cost-effective, promising alternative to traditional incarceration or probation. Today over 200 individuals participate in these collaborative courts. Judge Hight’s joy, laughter, and guidance comes from his wife Mary who inspires him daily; his son Nate, wife Julie and daughter Zoey; and his daughter Kori, husband Nels, and children, Loren and Cooper. Busy as he is as presiding judge, he always finds time to babysit a grandchild or wear a goofy hat at a family birthday party. The SCBA has named a worthy recipient of its 2015 Judge of the Year Award.

www.sacbar.org | September/October 2015 | SACRAMENTO LAWYER

SECTION & AFFILIATE NEWS

Heather Hoganson is an attorney with the Department of Alcoholic Beverage Control. She may be contacted at Heather.Hoganson@ABC.ca.gov.

The Public Law Section Hears Interesting Facts about the ABC by Heather Hoganson

Sometimes a phone call from ABC to a licensee may be enough to bring awareness to an absentee owner that his business needs a “check-up.”

hat can cities or counties do about out-of-control biker bars or drug-infested convenience stores? Michael L. Korson, Deputy Division Chief of the State Department of Alcoholic Beverage Control (Northern Division), recently explained to Public Law Section attendees some techniques that local governments and law enforcement have in their toolbox to combat problem areas. In ABC terms, a particular bar that generates excessive law enforcement issues is described as a “disorderly house.” (Bus. & Prof. Code §25601.) There are over 88,000 permanent licenses in the State of California, plus a multitude of temporary event permits. ABC has 21 field offices throughout the state, with approximately 150 agents. Last fiscal year, ABC filed 1876 disciplinary actions and made over 3600 arrests (both misdemeanor and felony). These cases involve (among other things): sales of alcohol to minors or obviously intoxicated persons; sales or service after hours; narcotic sales; prostitution or illegal drink solicitation; gambling; or disorderly houses. Payments made in lieu of suspensions brought in $3.1 million to the General Fund last fiscal year.─If a licensee is suspended or pays a payment in lieu of such, the hope is

SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

that the particular licensee will be more careful in the future. Successive disciplinary actions can result in revocation of the license completely.─There were approximately 700 suspensions and 200 revocations last fiscal year. If a local government is having a problem with litter, graffiti, loitering, etc., around a particular premises, ABC agents can work with local law enforcement as part of the Retail Operating Standards Task Force (ROSTF) to identify businesses in violation of their operating standards;─warnings are issued; follow-up inspections are conducted; and discipline may result if the problem is not resolved. IMPACT inspections (Informed Merchants Preventing Alcohol-Related Crime Tendencies) are conducted on licensed premises to identify any areas of non-compliance and educate the licensees of their responsibilities and of the issues. ABC enforcement may also be initiated by citizen complaints, forwarded police reports, undercover investigations, or notifications from other agencies, such as fire, health, building and safety, employment development, labor, or welfare departments. Sometimes a phone call from ABC to a licensee may be enough to bring awareness to an absentee owner that his business needs a “check-up.”

UNITY BAR DINNER 2015 Thursday, October 29, 2015

UNITY BAR ASSOCIATION OF SACRAMENTO Leonard M. Friedman Bar Association Asian/Pacific Bar Association of Sacramento La Raza Lawyers Association of Sacramento Sacramento Lawyers for the Equality of Gays and Lesbians South Asian Bar Association of Sacramento Wiley W. Manuel Bar Association Women Lawyers of Sacramento

MASTER OF CEREMONIES

SPECIAL GUEST

KEYNOTE SPEAKER

MARC B. KOENIGSBERG

JUSTICE GEORGE NICHOLSON

JUSTICE RICHARD D. FYBEL

President, Leonard M. Friedman Bar Association Of Counsel, Greenberg Traurig, LLP

Associate Justice Third District Court of Appeal

Associate Justice Fourth District Court of Appeal

Doubletree Hotel Sacramento

Tickets available online through October 26, 2015

2001 Point West Way, Sacramento, CA 95815 (916) 929-8855

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• Student Tickets: $50.00 each

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EVENT SPONSORSHIP PACKAGES Law School Sponsorship $2,000 Two (2) student tables and one (1) group table Special recognition in event program and sponsor board

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Contact the Unity Bar Association of Sacramento at ptreeves@sbcglobal.net or (530) 757-8490 to purchase a sponsorship package

www.sacbar.org | September/October 2015 | SACRAMENTO LAWYER

LEGAL FUSION

a Celebration of Scholarship and Service

Judge of the year Attorney of the Year

Renee C.T. Carter

U.S. District Judge Troy L. Nunley

Nathaniel S. Colley, Sr. Lifetime Achievement awardee

Wanda Hill Rouzan

Thursday, October 15th, 2015 Reception begins at 5:30 P.M.

Firehouse Restaurant 1112 2nd Street, Sacramento, CA 95814

Ticket price: $50. RSVP to sacwmba@gmail.com For more information, please visit: www.wileymanuelbarassociation.com 24

SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

Hon. Darrel W. Lewis (Ret.) Mediator The Judge

The Mediator

“Employment law is complex and requires marshalling emotions and expectations between employers and employees. When such difficulties arise in my cases, I want Judge Lewis as the mediator. He is respectful and thoughtful to my clients and me throughout the process, but he gets people to move and to compromise.” Plaintiff Attorney

“He quickly identified the key issues in this contract/ real estate/construction case and brought both sides to a fair and satisfactory settlement. He is bright, tenacious and makes the clients feel that he understands what they are going through. He keeps the parties focused and gets a speedy resolution.”

Don’t compromise when choosing your next mediator.

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Judge Lewis is a trained and experienced mediator who listens empathetical/y and will also speak with the authority and stature of a retired judge when necessary.

916-483-2222 • www.mediatorjudge.com Sacramento and all Northern California

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SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

Viaggio On the River Estate and Winery

Where Your Journey to Forever Begins! Viaggio Estate & Winery is located in the heart of Lodi Wine Country, nestled among lush vineyards and walnut orchards, sharing one stunning backdrop- the pristine Mokelumne River. Tasting Room Hours: Thursday through Monday 11 am to 5 pm, Fridays open until 8 pm 100 E. Taddei Rd. Acampo, CA 95220 (209) 368-1378

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weddings and wine www.sacbar.org | September/October 2015 | SACRAMENTO LAWYER

BARRISTERS’ NEWS

Lauren Calnero is the

Barristers’ Club Update

Barristers’ 2015 media chair and an associate at Porter Scott. She may be contacted at lcalnero@porterscott.com.

by Lauren Calnero

A packed house for the Barristers’ June Summer Social at Hot Italian

23rd Annual Summer Associates Reception a Huge Success Local judges, practitioners, summer associates, and law students convened at the Park Ultra Lounge on July 23, 2015, at the 23rd Annual Summer Associates Reception. The event honors the Diversity Fellowship Program and its participants. The Program is a coordinated effort between the Sacramento County Bar Association, local law firms, Pacific McGeorge School of Law, and King Hall to promote and increase diversity in area law firms. The Program provides local minority and disadvantaged students an opportunity to work in a law firm between the first and second year of law school. Attendees enjoyed the sophisticated setting, an assortment of sliders, appetizers from

Cafeteria 15L, and selections from the bar. On behalf of the Barristers’ board, we thank our Platinum and Gold Sponsors, as well as participating firms, for their continued support.

The Barristers Continue with a Busy Summer of Social & MCLE Programming The Barristers officially kicked off their action-packed summer programming with a social mixer at Hot Italian on June 25, 2015. With over 100 attendees, many new networking connections were made between current and potential club members. Attendees were also entered into a drawing for an iPad as part of a summer raffle to encourage event attendance, courtesy of LIT Services.

Members of the Barristers’ Club and area attorneys packed the courtroom of the Sacramento County Superior Court Law & Motion Department on July 13, 2015 for the annual Law & Motion Seminar. Judge David Brown and Judge Raymond Cadei lead an active discussion about best practices in law and motion. Three days later, the Barristers hosted a second July event—the first ever Regulation of Fish & Wildlife MCLE Seminar. This newly minted MCLE seminar was led by two Washington D.C. attorneys from the Association of Fish & Wildlife Agencies, Carol Bambery and Parks Gilbert, as well as Ann Malcolm from the California Department of Fish & Wildlife. The seminar was followed by refreshments and networking at Weintraub Tobin.

Watch the Calendar for Upcoming Events Please look for additional dates for upcoming MCLE seminars focusing on mediation practice and efficient use and management of expert witnesses, as well as details for the Barristers’ Voting Social and Annual Wig Party. For more information about the Barristers’ Club of Sacramento, please e-mail sacbarristers@ gmail.com to add your name to the Barristers’ email list.

Platinum: Delfino Madden O’Malley Coyle & Koewler LLP, Downey Brand LLP, Littler Mendelson P.C., Matheny Sears Linkert & Jaime LLP, Porter Scott, Wagner Kirkman Blaine Klomparens & Youmans LLP, & Wilcoxen Callaham LLP Gold: Boutin Jones Inc., Kershaw Cook & Talley P.C., Mastagni Holstedt, APC, Orrick Herrington & Sutcliffe LLP, Palmer Kazanjian Wohl Hodson LLP, & Remy Moose Manley LLP

Nicole Hendrickson, Nicole Buckoski, Stephanie Rice & Alison Witner

SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

Sosan Madanat (Executive Director for the Foundation for Democracy and Justice), Barristers’ board member Lauren Foust, & Anthony Bento enjoying the Summer Associates Reception

Women Lawyers of Sacramento Presents the 22nd Annual

Fest

THURSDAY, SEPTEMBER 17, 2015 - 6:00PM-8:30PM LOCATION: THE CALIFORNIA MUSEUM 1020 O STREET, SACRAMENTO, CA 95814

Join colleagues and friends for an exciting evening including local artists, music, hosted food and wine, and silent auction. Proceeds fund grants to local charitable organizations and scholarships for law students. GOLD SPONSORS

PLATINUM SPONSORS

Ticket pricing: $40 advance purchase; $45 at the door. Tickets may also be purchased online at http://womenlawyers-sacramento.org/events/annual-artfest/

I would like ______ tickets at $40/person

Tony & Joan Stone

I cannot attend, but would like to donate: $__________

Enclosed is my payment of $____________________

Check # ____________________

Name(s): ____________________________________________________________________________________ Company: ___________________________________________________________________________________ Address/Phone: ______________________________________________________________________________ Email: _______________________________________________________________________________________

For information on the event please contact Kim Garner at kkakavas@gmail.com

Return form and check payable to “WLS Foundation” to: Matheny Sears Attn: Julia Reeves/ArtFest • 3638 American River Drive • Sacramento, CA 95864

ETHICS

Greg Fayard is Counsel with Klinedinst

The Ethical Lawyer, Rule 3-310(C)

PC’s Sacramento office. He may be reached at gfayard@klinedinstlaw.com. Betsy S. Kimball is a certified specialist in legal malpractice law and the Editor of this publication.

Avoid Potential Pitfalls of Joint Representation of Clients by Greg Fayard and Betsy S. Kimball Pick the correct answer.

Quiz

I do not have to comply with Rule of Professional Conduct 3-310(C) unless there is some actual conflict about the case between or among my jointly represented clients.

2. As long as my jointly represented clients agree on everything about the case now and I do not see any likelihood that they will disagree in the future, I do not have to comply with rule 3-310(C). 3. Every time I jointly represent clients in the same matter, I must comply with rule 3-310(C).

Rule of Professional Conduct 3-310 states in pertinent part: “(C) A member shall not, without the informed written consent of each client: (1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or (2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or ….” The comment to the rule is more explicit: “Subparagraphs (C)(1) and (C)(2) are intended to apply to all types of legal employment, including the concurrent representation of multiple parties in litigation or in a single transaction or in some other common enterprise or legal relationship. Examples of the latter include the formation of a partnership for several partners or a corporation for several shareholders, the preparation of an ante-nuptial agreement, or joint or reciprocal wills for a husband and wife, or the resolution of an ‘uncontested’ marital dissolution.”1 Based upon the text of the rule and especially on the comment, the correct answer to the quiz is # 3. As a practi-

cal matter, in 99 percent of joint client representations, there is the potential for conflict in the jointly represented clients’ interests, no matter how much they profess their love for each other, want exactly the same thing, etc., at the time that they retain the attorney. Historically, not a lot of attention has been paid to rule 3-310(C), although any legal malpractice lawyer would say non-compliance creates a problem in defending a breach of fiduciary duty claim against the now former lawyer by one of the now former jointly represented clients. The Rules—while not creating civil causes of action2—do conclusively set the fiduciary duties of an attorney, according to multiple courts.3 But now, the days of benign neglect to and of rule 3-310(C) are over. The Bar has long had “sample fee agreements” available in pdf and Word.4 In late July 2015, the Bar added to the “optional clauses” portion of its sample fee agreements a “Joint/Multiple Client Disclosure and Consent Form.” By mid-August 2015, the Bar had taken down that form. Sooner or later, it is likely to replaced with a new form. The Bar’s attention to this issue is the first “clue” that rule 3-310(C) enforcement is no longer a sleeper. Another is the recent experience of an in-house lawyer who represented his employer in defending a FELA case and simulta-

SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

neously represented employee Yanez, a co-worker of the injured man, at his (Yanez’s) deposition in the FELA case.5 The case is worth a careful read. Yanez, a mechanic, had been working with the FELA plaintiff at the time of the plaintiff’s injury. Prior to his deposition in the FELA case, Yanez told the attorney that he feared his testimony would be unfavorable to the employer and asked the attorney who would “protect” him. With the benefit of hindsight, that was a “red flag” for the attorney (recall: inhouse defense counsel for the employer); but the attorney told Yanez that he was Yanez’s attorney for the deposition and that, as long as Yanez told the truth in the deposition, his job would not be affected.6 Yanez was eventually fired, at least in part based upon the testimony that he gave at his deposition. He then sued both his employer for wrongful discharge and the attorney for legal malpractice, breach of fiduciary duty, and fraud.7 The attorney successfully moved for summary judgment on the ground that he did not cause Yanez’s termination. The Court of Appeal, Third Appellate District, reversed, finding a triable issue of fact that, but for the attorney’s alleged malpractice, breach of fiduciary duty and fraud, Yanez would not have been terminated.8 The court explained that

ETHICS rule 3-310(C)(1) and (2) requires informed written consent of each client before a lawyer can represent more than one client in a matter in which the interests of the clients potentially or actually conflict.9 The court held that it was a conflict of interest for the attorney to represent both Yanez and the employer at Yanez’s deposition in his former co-worker’s FELA case against the employer.10 Thus, the attorney violated rule 3-310(C)(1) and (2) when he did not inform Yanez of the potential conflict of interest between the employer and Yanez and when he did not obtain Yanez’s written consent to represent Yanez at the deposition.11 The attorney’s problems did not end with the reversal of his judgment and remand of the case against him. The Bar filed a disciplinary action against him, charging two counts of misconduct stemming from a single matter (representing multiple clients

with potential and actual conflicts without notice and written consent, in violation of rules 3-310(C)(1) and (2)). The Bar proved its case by clear and convincing evidence. The matter ended in July 2015, with the attorney’s “private reproval, public disclosure.” Some very reasonable ethics experts disagree with the Yanez case, including the fact that the attorney was disciplined.12 There may be more to the story than the record on a summary judgment appeal revealed. Yet the civil case is published, and the attorney’s “private” reproval is not private at all. The lessons are clear. Assume a very broad definition of what is the same matter when representing multiple clients. Comply with rule 3-310(C) at the commencement of the representation of joint clients even when there are no conflicts between/among them and comply again if conflicts do arise. The days of benign neglect of rule 3-310(C) are indeed over.

1 The reminder of the comment states: “In such situations, for the sake of convenience or economy, the parties may well prefer to employ a single counsel, but a member must disclose the potential adverse aspects of such multiple representation (e.g., Evid. Code, §962) and must obtain the informed written consent of the clients thereto pursuant to subparagraph (C)(1). Moreover, if the potential adversity should become actual, the member must obtain the further informed written consent of the clients pursuant to subparagraph (C)(2).” 2 Rule 1-100(A). 3 See, e.g., Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1147 [“The standards governing an attorney’s ethical duties are conclusively established by the Rules of Professional Conduct[,]” and no expert testimony can change that.]; and see, Betsy Kimball, “The Ethical Lawyer: A Pitch for the Rules of Professional Conduct,” Sacramento Lawyer (July/August 2013) 16. 4 See http://www.calbar.ca.gov/Attorneys/Forms.aspx. 5 Yanez v. Plummer (2013) 221 Cal.App.4th 180 6 Id. at p. 184. 7 Id. at p. 182. 8 Id. at p. 189. 9 Id. at p. 188. 10 Id. at pp. 188, 190. 11 Id. at p. 188. While violating a rule of professional conduct is evidence of malpractice liability or breach of fiduciary duty, standing alone it does not prove malpractice or the fiduciary breach. (BGJ Associates v. Wilson (2003) 113 Cal.App.4th 1217, 1227.) 12 How to navigate the perils of a joint representation has been discussed nationally. See, e.g., https://apps. americanbar.org/litigation/litigationnews/top_stories/031714-conflict-joint-representation.html.

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www.sacbar.org | September/October 2015 | SACRAMENTO LAWYER

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COLLABORATIVE PRACTICE FAMILY LAW SPECIALIST

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SIGN ___________________________ DATE__________

FAMILY LAW CENTER

“Divorce Please fax back Doneto (916) 564-3787 or email back to Mary Burroughs Please fax back to (916) 564-3787 or email back to SALES@SACBAR.ORG or call (916) 564-3780 Differently” mburroughs@sacbar.org

Thank you!

Call for Free Brochure

488-5088 Please fax back to (916) CAROL564-3787 DELZER President, Family Law Center or email back to Mediator - Collaborative Attorney mburroughs@sacbar.org Certified Family Law Specialist

www.FamilyLawCenter.US 1722 Professional Drive Sacramento, CA 95825

Certified by the State Bar of CA Licensed Marrriage Family Therapist License #32861

Thank you!

SACRAMENTO LAWYER | September/October 2015 | www.sacbar.org

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SAVE THE DATE Keynote Speaker: Judge Vaughn Walker former district judge in the United States District Court for the Northern District of Califor nia, and presided over the Hollingsworth v. Perry trial.

Honoring: Professor Lawrence Levine

November 5, 2015 THIRD ANNUAL FOUNDERSâ&#x20AC;&#x2122;

in recognition of his contributions to the legal profession and the lesbian, gay, bisexual, and transgender community.

2 015 is also SacLEGALâ&#x20AC;&#x2122;s Twentieth Anniversary, celebrating two decades of serving the LGBT and legal communities in Sacramento. In this historic year of nationwide marriage equality, join SacLEGAL as we celebrate how far we have come, while also looking forward to the future.

Dinner will be served, and your ticket to the event comes with one free drink.

Location: Blue Prynt Restaurant 815 11th St., Sacramento, CA 95814

AWARD & TWENTIETH ANNIVERSARY CELEBRATION

The event will be in the upstairs event room. (Note: Google maps will take you to the back of the building. The actual entrance is located on 11th Street.)

Registration will be from 5:30 to 6:30, the program will last from 6:30 to 7:30.

For more information and tickets, visit saclegal.org or e-mail info@saclegal.org

Judge Vaughn Walker

Professor Larry Levine

www.sacbar.org | September/October 2015 | SACRAMENTO LAWYER

SACRAMENTO COUNTY BAR ASSOCIATION

Diversity Fellowship Program

ANNIVERSARY DINNER SPONSOR LEVELS

FRIDAY, SEPTEMBER 25, 2015

PLATINUM

LIBRARY GALLERIA (828 I Street, Sacramento, CA)

5:30pm ~ Cocktail Hour 6:30pm ~ Dinner Keynote Speaker ~ The Honorable Troy L. Nunley, United States District Court, Eastern District of California GOLD You can pay by credit card or make checks payable to Sacramento County Bar Association. Please mail, fax or email this form to: Sacramento County Bar Association, 1329 Howe Ave., Suite 100, Sacramento, CA 95825 Phone (916) 564-3780 • Fax (916) 564-3787 • Email: scba@sacbar.org

Pricing Information _______

Individual Tickets $75

_______

Law Students $30

Online Registration Available www.sacbar.org-Event Calendar SILVER

ORGANIZATION: _________________________________________________________________________________________________ FIRST NAME: ____________________________________ LAST NAME: ___________________________________________________ PHONE: _________________________________ EMAIL: _______________________________________________________________ ADDRESS: _______________________________________________________________________________________________________ CITY: _________________________________________________STATE:______ ZIP: __________________________________________ CHECK AMOUNT: $ __________________________________________ CHECK#:____________________________________________ CREDIT CARD NUMBER: __ __ __ __ – __ __ __ ___ – __ __ __ __ – __ __ __ __ EXPIRATION DATE: ___ ___ – ___ ___

MASTER CARD:

VISA:

BRONZE

AMOUNT: $______________________________

CVV CODE NUMBER: ___ ___ ___

SIGNATURE: _____________________________________________________________________________________________________ To ensure that each sponsor guest is recognized, please provide the name of your guests in the spaces below: GUEST NAME: __________________________________________________________ GUEST NAME: ____________________________________________________________________________ GUEST NAME: __________________________________________________________ GUEST NAME: ____________________________________________________________________________ GUEST NAME: __________________________________________________________ GUEST NAME: ____________________________________________________________________________ GUEST NAME: __________________________________________________________ GUEST NAME: ____________________________________________________________________________

Since 1963

Marty Anderson Vice President

Lawrence H. Cassidy President

Do your Accounts Receivables have a high balance and your bank account a low balance? • We have a staff of experienced collectors and three in house attorneys to put the cash in your bank account. • Over 100 law firms and many Fortune 500 firms select us to collect their past due accounts whether they are in the thousands or millions. • International collections recently made in England, Israel, Poland, and other countries. • Members: Commercial Law League of America. 700 Leisure Lane, Sacramento, CA 95815 Phone 916.929.7811 ext 222 | Fax 916.929.5125 | Email norcal@covad.net

SACRAMENTO SACRAMENTO COUNTY COUNTY BAR BAR ASSOCIATION ASSOCIATIONMAGAZINE MAGAZINE

1329 1329 Howe Howe Ave., Ave., #100 #100 •• Sacramento, Sacramento,CA CA95825 95825

SCBA Annual Meeting Operation Protect and Defend,of the Year Honoring Distinguished Attorney Sacramento County Bar Association and Federal Bar Association Sacramento Justice ArthurChapter Scotland Proudly Present

Annual Law Day DinnerInstalling Celebration 2015 SCBA

DATE: Thursday, May 7, 2015 • TIME: 5:30 – 8:30 p.m. PLACE: Sheraton Grand Sacramento Hotel, 1230 J Street, Sacramento KEYNOTE SPEAKER: Renowned Loyola Law School Professor Laurie Levenson Recognizing 100% Firms

Officers & Directors GOLD SPONSORS

PLATINUM SPONSORS

DATE Monday December 15, 2014

Hon. Frank C. Damrell, Jr. (Ret.)

TIME SILVER SPONSORS MCLE Prior to Annual Meeting 11:30 Check in Shaw Valenza LLP • Leonard M. Friedman Bar Association Young, Minney & Corr • Downey BrandFREE LLP for SCBA Members 12:00 Lunch Goodman & Associates • Kanter Immigration Law Office Medina McKelvey LLP • Littler Mendelson, P.C. BRONZE SPONSORS

$100 for Non-Members Jacobsen & McElroy PC • Women Lawyers of Sacramento University of the Pacific, McGeorge School Law - Topic: “Attorney 1 HourofEthics Fees, Law Offices of Kaizuka & Valcarenghi ABAS and ABAS Law Foundation Practically and Ethically” Capitol City Trial Lawyers Association

Speaker: Kenneth Bacon of Mastagni Holstedt

PLACE Sheraton Grand 1230 J Street

Price: $65 per ticket. To reserve your place and/or sponsor a student, please RSVP by mail to Adriana C. Cervantes at Porter Scott, 10:30-11:30am 350 University Ave., Suite 200, Sacramento, CA 95825, by email at acervantes@porterscott.com, online website at www.OperationProtectAndDefend.com All checks should be made payable to “Kennedy Library & Learning Center.” No RSVP is finalized without payment.

Keynote Speaker: Phone number: ______________________________Email: _________________________________________________________ Chief Justice of California

Name: ______________________________________Organization/Company: __________________________________________

I wish to purchase: _________ tickets at ($65 each) and donate _________ student tickets at ($65 each) TOTAL purchase $ _______________

Tani Cantil-Sakauye

Menu choice Menu choice Attendee name (salmon, chicken, or vegetarian) Attendee name (salmon, chicken, or vegetarian) ___________________________________________________________________________________________________________________________________

Ticket information: www.sacbar.org/event calendar, $45 for SCBA members, $65 for non-members. ___________________________________________________________________________________________________________________________________ After November 23rd, ticket prices increase by $5 RSVP to rsvp@sacbar.org or call (916) 564-3780. Send checks payable: SCBA, 1329 Howe Ave #100, Sacramento, CA 95825