Cruz Reynoso Bar Association Honors Judge David De Alba with Defensor de Justicia Award

Brian López is the President of the Cruz Reynoso Bar Association. He can be contacted at brian.lopez@me.com.

Cruz Reynoso Bar Association Honors Judge David De Alba with Defensor de Justicia

Award By Brian López

Brian López presents Defensor de Justicia award to Judge David De Alba Jesse Rivera, Justice Cruz Reynoso (Ret.), Judge David De Alba, Judicial Appointments Secretary Luis Céspedes, CRBA Board Chair George Acero

This past January 2021, the Cruz Reynoso Bar Association (CRBA) honored former Presiding Judge of the Sacramento Superior Court, Judge David De Alba, as the organization’s third Defensor de Justicia (Defender of Justice) award recipient. The CRBA’s Defensor de Justicia award was created in 2017 in honor of Justice Cruz Reynoso (Ret.), the first Latino Justice to sit on the California Supreme Court. Recipients of the award unequivocally exemplify Justice Reynoso’s life-long passion in pursuit of equality under the law for all, and in particular for marginalized members of our society. Judge De Alba joins former

California State Attorney Gener-

al Xavier Becerra and Dean Kevin Johnson of UC Davis School of Law as the CRBA’s past Defensor De Justicia award recipients.

During the virtual ceremony, a line-up of distinguished speakers highlighted the life and contributions of Judge De Alba to the legal field and our local community with words of praise and congratulations from many of his fellow jurists, including special remarks from 2018 SCBA Judge of the Year, Judge Emily E. Vasquez of the Sacramento County Superior Court, current Presiding Judge of the Sacramento Superior Court, Judge Russell L. Hom, as well as US District Court Judge for the Eastern District, Judge Troy L. Nunley. Additional speakers included Judge Sonia Cortés of the Yolo County Superior Court, Judge Daniel A. Flores of the San Francisco County Superior Court, as well as Presiding Justice Vance W. Raye of the Third District Court of Appeal.

Each speaker shared a warm and personal glimpse into the enduring impact that Judge De Alba has had in his decades-long legal career in Sacramento and beyond. One overarching theme that resounded clearly in each speakers’ remarks, and which was so aptly stated by Judge Nunley during the event, is that Judge De Alba is a “judge’s judge.” Whether as a colleague, mentor, or friend, Judge De Alba’s support and guidance have made him a strong and indispensable role-model, advocate, as well as trailblazer for members of our legal community who strive to emulate not only his success, but his selfless passion for causes which are greater than one’s self.

Notably, as was pointed out during Justice Raye’s words of congratulations to his longtime friend and colleague, Judge De Alba has never forgotten where he came from. Born to Mexican immigrant parents who raised him and his five younger siblings in San Francisco’s working-class Bayview neighborhood, Judge De Alba’s commitment to pursuing justice has been inextricably motivated by the path he navigated since his youth to becoming the highly regarded member of the bench and zealous advocate he is today.

Spurred by the work ethic and values instilled in him by his parents, Judge De Alba’s pursuit of higher education began at the local city college where he played on the school’s baseball team before ultimately attaining his undergraduate degree from UC Berkeley in 1976. He then later graduated from UCLA School of Law in 1979, where he served as an intern for Justice Reynoso, beginning what would be a lifelong relationship with the esteemed jurist in whose legacy Judge De Alba proudly stands as a recipient of the CRBA’s Defensor de Justicia Award created in Justice Reynoso’s honor.

After law school, Judge De Alba worked in California’s Office of the Attorney General where he received the Attorney General’s Award for Outstanding Achievement in 1999. He was also inducted into the American Board of Trial Advocates due to his tremendous accomplishments as a trial attorney during this time that would result in Judge De Alba attaining the position of Special Assistant Attorney General. In 2001, Judge De Alba was appointed to the Sacramento Superior Court and has since continued and strengthened his commitment to the advancement of our profession by serving on various committees with the Judicial Council of California, as well as teaching as an adjunct professor for law school and community college courses.

In recognition of his many professional achievements, as well as his dedication to the local Sacramento legal community, Judge De Alba was previously awarded with the SCBA’s “Judge of the Year Award” in 2011. He was also honored by both the Latino Journal and the Capitol City Trial Lawyers Association, earning each organization’s own “Judge of the Year” awards in 2011 and 2016, respectively. From 2018 to 2019, Judge De Alba served as the Presiding Judge of the Sacramento Superior Court where he was instrumental in instituting court programs and reforms designed to alleviate the disparate and inequitable impact of the legal system on many underrepresented and disadvantaged populations.

Throughout his career, Judge De Alba has also selflessly aspired to contribute to the larger legal community by mentoring attorneys, law students and judges, many of whom are persons of color. Judge De Alba has also worked tirelessly to improve our legal system though his volunteer involvement with many local and statewide legal organizations with the goal of advancing our profession through his tremendous experience and expertise, including as a past president of the former La Raza Lawyers Association of Sacramento in 1985, as well as one of the founding members of its transition to becoming the Cruz Reynoso Bar Association in 2016.

Without question, Judge De Alba’s personal and professional achievements throughout his career exemplify the value and goals of the CRBA, as well as the honorable Justice Cruz Reynoso to whom our organization’s name and mission pay homage. Judge De Alba’s legal career is representative of not only Justice Reynoso’s dedication to the pursuit of knowledge, but also his commitment towards service to his community and the fair administration of justice. The CRBA is proud to award Judge De Alba with this honor for all that he has done and continues to do to in order to lay the foundation for those who would aspire to follow in his footsteps.

Finally, during this year’s ceremony, the CRBA also began a new tradition of awarding a Defensor de Justicia scholarship award to a current law school student who has demonstrated potential and dedication to advancing diversity, equality and community. This year’s inaugural scholarship recipient was Yoxira Espinoza, a second year law at UC Davis School of Law and DACA beneficiary whose history of overcoming adversity to pursue a career in law is not only highly commendable, but deeply inspiring.

For those who were unable to attend the virtual event, please visit the CRBA website at www.crbasacramento.com to view the video on our “Events” page.

Larry Doyle, former member, COPRAC. He can be contacted at Larry@LarryDoyleLaw.com.

Help for Attorneys Representing Incapacitated Clients – Proposed Ethics Opinion from the California State Bar’s Committee on Professional

Responsibility and Conduct (COPRAC) By Larry Doyle

After literally decades of frustration, California attorneys whose clients demonstrate diminished capacity should be in a much better position to take steps to protect those clients under a proposed ethics opinion (Opinion 130002) by the California State Bar’s Committee on Professional Responsibility and Conduct (COPRAC), which will soon be sent to the Bar’s Board of Trustees for final approval. Under the proposed opinion, California attorneys still will not have the same ability as attorneys in almost all other states to share their concerns with trusted members of the client’s family or to initiate conservatorship proceedings. But, by closely analyzing existing law and opining that attorneys may obtain prior consent from their clients to take specified protective steps under clearly specified circumstances, COPRAC has provided essential guidance to California attorneys - along with hope that this protective tool will be far more recognized, accepted and utilized in the future for clients’ benefit.

The thing that stands in the way of California attorneys taking protective steps to protect a client is California’s toughest-in-the-nation duty of confidentiality, which is firmly established in both statute (Bus. & Prof. Code § 6068(e)) and rule (California Rule of Professional Conduct 1.6). The first paragraph of the former requires a California attorney “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” The only exception to the duty is found in the second paragraph (e)(2), which permits an attorney to reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. The limitation of the statute to “criminal acts” renders it inapplicable as a mechanism for protecting clients with diminished capacity.

Because a client’s incapacity easily falls within the definition of a client confidence or secret, a nearly unbroken series of ethics opinions from COPRAC and other California bar associations (the Los Angeles County Bar Association, the San Diego County Bar Association, the Orange County Bar Association) have agreed that a lawyer cannot reveal any of the bad or irrational decisions the client proposes to make to anyone, even loving and trusted family members, without the client’s informed consent (the only outlier was the Bar Association of San Francisco in 1999, but that opinion was not based on California law and thus is not to be relied upon). And if the client is indeed suffering from diminished capacity or dementia, establishing that any consent is truly “informed” is an evidentiary challenge.

All but a very few states (at least 46) have adopted a variation of Rule 1.14 of the Model Rules of Professional Conduct (MRPC). Under that rule, an attorney who reasonably believes a client has diminished capacity must, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. But if the lawyer believes the client is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the rule authorizes the lawyer to take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

There have been many efforts to adopt a California version of MRPC 1.14 over the past 30 years or more, none of them successful. In the 1990’s, the State Bar of California’s then-Trusts and Estates Section proposed legislation to insert the standard into the Business and Professions Code as an exception to section 6068(e). The effort was rejected by the Bar’s Board of Governors.

In the early 2000’s, the state bar initiated a comprehensive overhaul of California’s Rules of Professional Conduct which was intended to bring California’s system, which was completely different from the Model Rules in many respects - including the numbering system - into closer conformity with the national model. The project lasted from 20002010. Among the changes proposed was enactment of a version of 1.14 very similar to the national model. The whole of that decade-long effort was quietly rejected by the Supreme Court in 2014, which asked that a new commission be created and established clear parameters of what the Court expected.

The Second Rules Revision Commission (RRC) was appointed in 2017 and finished its task by May 2018. This RRC, too, took up the issue of a California-specific version of Rule 1.14 and produced one that was substantially weakened in the sense that it required the attorney to obtain the client’s informed consent before taking any action. This was seen by many attorneys as gutting the law’s impact and really no different from existing law, which already permitted an attorney to act with informed client consent.

The only truly different element of the Second RRC’s version of Rule 1.14 was a provision authorizing the informed consent to be obtained in advance, while the client still had clear capacity. This provision was similar to an Advance Health Care Directive (AHCD), and would permit attorney and client to decide such things as the determination of diminished capacity and the specific actions that the attorney could take.

The California Supreme Court accepted and implemented all the rules proposed by the Second RRC - all except the proposed new 1.14. The Court gave no reason for the rejection, leaving those concerned to speculate as to whether it objected to carving out an exception to California’s attorney duty of confidentiality, or whether it was unwilling to approve a rule in conflict with a statute (Bus. & Prof. Code section 6068(e)). Perhaps the court it saw the rule as unnecessary in light of existing law, either in the case of either the requirement to obtain informed client consent, in the ability to provide that consent in advance, or both. Whatever the case, the revised California Rules of Professional Conduct that took effect in November 2018 once again failed to include a California-specific version of MRPC Rule 1.14.

Now back to COPRAC Draft Opinion 13-0002. When the RRC commenced the project in 2013, California law on the subject was pretty clear, but in a state of flux. COPRAC itself has addressed the issue in its formal opinion 1989-112, which stated that an attorney who sought to initiate conservatorship proceedings for a mentally incapacitated client violated not only the rules against

confidentiality but also engaged in a conflict of interest by failing to represent the client, who in most cases would object to the conservatorship. Thus, if the lawyer could not dissuade the client from taking actions that the lawyer was convinced were not in the client’s best interest, the only ethical action the lawyer could take was to withdraw from representation. This result was consistent with that reached by the San Diego County Bar Association in its opinion 1978-1 and the Los Angeles County Bar Association in its opinion #450 in 1988. Only the Bar Association of San Francisco took a contrary position in its Opinion 1999-2, which opined that an attorney who reasonably believes a client is substantially unable to manage their own financial resources or resist fraud or undue influence may, but is not required to, take protective action with respect to the client’s person and property. But as that opinion was based on the Model Rules and essentially ignored California’s contrary statutes and rules, it was largely disregarded in ethics circles.

None of those earlier opinions addressed the question of whether an attorney and client could agree prospectively on steps to be taken if the client began to demonstrate signs of diminished capacity, as RRC had proposed in the second version of Rule 1.14. However, COPRAC Opinion 1989-115 did. That opinion was based on the California Supreme Court’s decision in Maxwell v. Superior Court (1982) 20 Cal.3d 606, holding that an agreement by a criminal defendant to prospectively waive confidentiality with regard to the rights to his story as payment for legal services was not per se invalid. Based on this holding and the well-established statutory and case law authorizing advance health care directives, COPRAC came to the following conclusion, “A lawyer representing a competent client who may later become incapacitated may propose to the client that the client give advanced consent to protective disclosure in the event that such incapacity occurs. If appropriately limited and informed, such a consent is ethically proper.”

The authorization provided is far from open-ended. But assuming that draft COPRAC Opinion 13-0002 is approved by the State Bar’s Board of Trustees, it provides a framework for attorneys and clients to specify the circumstances under which the client can specify those conditions under which the attorney may determine that the client is suffering from diminished capacity and take appropriate protective steps.

SECTION & AFFILIATE NEWS

Jennifer Hennessey is the Immigration Section Co-Chair and an attorney at Law Offices of Jennifer L. Hennessey. She can be contacted at jennifer@hennessey-law.com.

Immigration Law Section Update

By Jennifer Hennessey

There are exciting new events happening in the Immigration Law Section this year. The Section welcomed Lisa Kobayashi as Co-Chair and Chuck Bonneau as Secretary. At monthly “power lunches” held on the first Friday of each month at noon, attorneys can get together virtually to discuss recent trends in immigration law, ask questions and share practical ideas with other attorneys. Contact a Section officer below directly by email for the Zoom link information if you are interested in attending. The Immigration Law Section is also planning several CLE events this year. Look for details and dates of upcoming CLE events to be posted on the SCBA calendar!

2021 Section Officers:

• Co-Chair:

Jennifer Hennessey jennifer@hennessey-law.com • Co-Chair:

Lisa Kobayashi kobayashilawoffice@gmail.com • Secretary:

Chuck Bonneau cbonneau@bortonpetrini.com • Member-at-Large:

Brian Lopez brian@lopezlegalservices.com