T h e A l a m e d a C o u n t y B a r A s s o c i at i o n
PROMOTING EXCELLENCE—SEEKING JUSTICE
A YEAR » IN REVIEW December 2014
Top 10 Tips From
Demystifying Judicial Appointments
The Rise of
Legal Cannabis
Part 5 and 6 in the
Trial Evidence Series
Pennies from
Cy Pres Heaven
Over 100
Color Photos of ACBA Events A Year in a Review, 2014
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A YEAR IN REVIEW
Promoting Excellence—Seeking Justice
Contributors
ALAMEDA COUNTY BAR ASSOCIATION
David Abernathy, Tiela Chalmers, Alyssa Firkus, Robert Frassetto, John Fricke, Tim Hallahan, Elizabeth Hom, Valerie Brown Lescroart, Toni Mims-Cochran, Amanda Picetti, Cindy Valdivia, and Whitney Ward
1000 Broadway, Suite 480, Oakland, California 94607 510-302-ACBA (2222) - fax 510-452-2224 www.acbanet.org
About the ACBA
2014 ACBA Officers and Directors Robert Frassetto, President
The Alameda County Bar Association (ACBA) was established in 1877 and has a membership of approximately 1,500 attorneys, judges, law students, and other legal professionals. The ACBA administers numerous programs and activities to benefit attorneys and the community.
Frassetto Law LLP Toni Mims-Cochran, President-Elect Law Office of Toni Mims-Cochran Stephanie Sato, Vice-President
Mission Statement
Law Offices of Stephanie K. Sato Rowena Gargalicana, Past-President
Our mission is to promote excellence in the legal profession and to facilitate equal access to justice.
»« ADMINISTRATION Tiela Chalmers Chief Executive Officer tiela@acbanet.org Amanda Picetti Director of Administration and Finance amanda@acbanet.org Hadassah Hayashi Membership and Education Coordinator hadassah@acbanet.org Jocelyn Bartlett Membership Assistant jocelyn@acbanet.org Valerie Brown Lescroart Communications Administrator valerie@acbanet.org Whitney Ward Operations and Development Coordinator whitney@acbanet.org CRIMINAL COURT APPOINTED ATTORNEYS PROGRAM (CAAP) John Fricke Director, Court Appointed Attorneys Program john@acbanet.org
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Estial Lett CAAP Administrator estial@acbanet.org Charlie Hien CAAP Billing Specialist charlie@acbanet.org Maria Anderson CAAP Conflicts Referral Specialist maria@acbanet.org LAWYER REFERRAL SERVICE (LRS) Alyssa Firkus LRS Administrator alyssa@acbanet.org Shree Benjamin LRS Intake Coordinator shree@acbanet.org VOLUNTEER LEGAL SERVICES CORPORATION (VLSC) Elizabeth Hom Director of Access Programs elizabeth@acbanet.org Daniela Meza VLSC Clinics Coordinator daniela@acbanet.org
A Year in a Review, 2014
Gargalicana/Graceffa LLP Eric Handler of Donahue Fitzgerald LLP, Michael Johnson of AT&T Services, Inc., Richard Lee of Blyth, Lee and Associates, Micha Star Liberty of Liberty Law Offices, Pelayo Llamas of the Oakland City Attorney’s Office, Cheryl Poncini of the Alameda County District Attorney’s Office, Nedra Shawler of the Office of Alameda County Counsel, Ruben Sundeen of Sundeen Salinas & Pyle, Delia Trevino of the Alameda County District Attorney’s Office
»« Editorial, Advertising and Other Inquiries For financial, environmental and timeliness reasons, in 2013 the ACBA replaced its quarterly print publication, The Bulletin, with a biweekly e-Newsletter and an annual print publication. Periodical postage paid in Oakland, California, and additional locations. POSTMASTER: Send address changes to Alameda County Bar Association, 1000 Broadway, Suite 480, Oakland, CA 94607. Average annual circulation: 2,000. Copyright© 2014 by the Alameda County Bar Association. All rights reserved. Neither the ACBA nor the A Year in Review staff assumes responsibility for statements or expressions of opinion by contributors to this publication. To share your impressions and ways you think this publication might be improved going forward, and to report errors, please contact Communications Administrator Valerie Brown Lescroart at valerie@acbanet.org.
A YEAR IN REVIEW Columns Robert Frassetto
1
ACBA President’s Message
5
Holiday Giving
Alyssa Firkus
6
Lawyer Referral Service
Amanda Picetti
7
Top 10 Tips from the Demystifying Judicial Appointments Program
Tiela Chalmers
15
Message From the CEO
19
ACBA Sections Spotlight
27
Updates from the State Bar
31
ACBA Leadership Firms
32
Guardians of Justice
John Fricke
35
Court Appointed Attorneys Program
Amanda Picetti
41
2013 ACBA Financials
Amanda Picetti
47
2013 VLSC Financials
Tiela Chalmers
48
Pennies from Cy Pres Heaven
50
Dues Renewal
Tim H. Hallahan David Abernathy
11 37
Trial Evidence Skills PART V: Hearsay Exceptions The Rise of Legal Cannabis
Cindy Valdivia
43
Protecting Your Most Valuable Asset and Your Practice
Tim H. Hallahan
45
Trial Evidence Part VI: Exhibits
3
2013 Holiday Reception
9
2014 Installation and Distinguished Service Awards Luncheon
13
Save the Date: 2015 Installation and Distinguished Service Awards Reception
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Spring Open House
17
Justice for All: Celebrating Pro Bono
21
10th Annual Barristers Golf Tournament
29
ACBA Summer Reception
33
Dine Around for Justice
34
Poverty Simulation
Events
A Year in a Review, 2014
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ACBA PRESIDENT’S message
Robert Frassetto 2014 ACBA President
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The Alameda County Bar Association was founded in 1877 to afford members of the bar in Alameda County, both attorneys and judges, a means to meet, interact, and learn from one another and, in so doing, develop a strong and vibrant local legal community. 137 years later, the ACBA now has 1,500 members. The ACBA founders were pioneers – probably quite literally in some instances, as the association began only 27 years after the height of California’s Gold Rush. They were visionaries, identifying a need and an opportunity. They built it, and almost a century and a half later, we are still coming. Today the ACBA – its dedicated board, staff, and members – also consists of pioneers, true pioneers looking at a very new and different landscape, one marked by dramatic change in the way we go about our business. Much of the changed landscape we face has been shaped by technology. The Internet has substantially changed the way people communicate and the manner in which information is exchanged. Associations like the ACBA, which facilitate communication between and deliver information to members and other participants in our judicial system, face an enormous corresponding challenge. To remain relevant, associations like the ACBA need to adapt to this new landscape, just as our pioneering founders did when they identified the need and value of a local, community-based bar association. Early in 2013, the ACBA board recognized the need to adapt more expeditiously and successfully to the A Year in a Review, 2014
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modern landscape while never losing sight of our proud and distinguished tradition, or sacrificing those traditional benefits which continue to serve us all so well. In true pioneering spirit, the board decided to take action, to identify desirable changes, radical if necessary, to ensure that the ACBA remains relevant now and in years to come, and to make those changes conducive to the best interests of our members and the community we serve. The board formed a Long Range Strategic Planning (LRSP) Committee which met energetically throughout the year, developing an integrated set of goals with some recommendations for how we might best achieve them in 2014. This year, through the committed and relentless efforts of the board and staff, last year’s conceptual decisions were refined and implemented. Matters that were determined not to deliver reasonable value to our members or community, or that were draining resources without corresponding benefit, were acted on without further waste or delay. Of course, the very best and most desirable features of our traditional model were preserved and reinvigorated, transforming the ACBA into a more streamlined, efficient, responsive, and resourceful service organization. Here’s a synopsis of some of the most dramatic changes: IMPLEMENTATION OF LRSP The ACBA’s bylaws were comprehensively reviewed and amended to integrate organizational changes resulting from the 2013 year-long strategic plan. •
Board size was reduced by about half to a yearby-year range of 7-11 members.
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Programs that were unduly time-consuming or anemic were trimmed, enabling us to focus on what we do best and what our members want most.
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A new IT plan was instituted and we hired a consultant to assist us in selecting a new database. The new database will have reliable, user-friendly registration functionality for programs and events, and will allow members to track their membership data online (such as CLE credits).
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Section Executive Committee meeting agendas and CLE programming protocols were standardized and streamlined, with new templates developed and distributed.
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The Education Council was revamped to encourage co-sponsorship of programs between sections and to brainstorm ideas for timely, stimulating CLEs. Section leadership committees rose to the new achievement challenge of higher standards: every established section put on at least one MCLE program; sections presented a total of 48 MCLEs, including the 6-hour Labor and Employment Symposium, as well as a total of 17 section socials, truly a record-breaking year that sets a new standard of excellence.
NEW CEO Our new CEO Tiela Chalmers’ first day was May 1, 2014. Even though she hadn’t officially started, Tiela came to the Spring Open House in April at the ACBA to meet members. She hit the ground running and hasn’t missed a step. You may read more about Tiela’s first six months in her article on page 15.
NEW CAAP DIRECTOR/CAAP OVERHAUL The ACBA’s Court Appointed Attorneys Program saw all positions filled with new people in 2014, with considerable care and attention given to continuity planning. Exceptional undertakings designed to improve the program include the following: •
A peer-review survey was developed, and with the extraordinary assistance and cooperation
of the Alameda County Superior Court bench, the District Attorney’s office, the Public Defender’s office, and private criminal defense attorneys, 220 reviewers all told reviewed 150 CAAP attorneys. In all, they completed 2,498 reviews. (See CAAP Director John Fricke’s article on page 35 for a breakdown of the reviewers.)
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•
We are currently negotiating with the county to increase the hourly rate for CAAP attorneys.
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CAAP has gone paperless. In the past, all fee declarations were sent to staff on paper and were manually entered into the database to be processed and paid. Now that information goes directly from the panel attorney into the database online – a much more efficient process.
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We’re looking ahead to electronic payment – a much faster and easier way for CAAP attorneys to get paid.
TOWN HALL SERIES Recognizing the ACBA’s unique and evolving role as the fulcrum between bench, bar, and community, we launched a new collaborative Town Hall program with the court, a series of open meetings at the ACBA which we expect will expand to other stakeholders in the community as the program continues to develop and its benefits as both a clearinghouse and sounding board gain recognition. •
2014 saw a Town Hall on new court fees -- the court welcomed bar input on controversial new changes and our members responded with questions, requests, and suggestions.
•
We developed four focus groups to inform the court’s strategic planning process in probate, criminal, general civil, and family law.
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Finally, we developed enhanced communications with the court, and court staff now contribute a monthly article for the ACBA e-Newsletter.
It’s been a great year for the ACBA. Thank you for your support of this distinguished, vital organization, and for your personal contributions great and small to the pioneering spirit which continues to find the ACBA at the vanguard of our legal system. It has been my distinct privilege and pleasure to serve you and our amazing community.
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A Year in a Review, 2014
ACBA Holiday Reception 2013 » What a wonderful evening at the Z Café and Bar! The ACBA Holiday Reception is one of our favorite events of the year, the perfect opportunity to network and mingle over a celebratory glass of bubbly. Thank you to everyone who came out to celebrate the excellent work of our sections and honor outgoing CEO Ann Wassam. We heard speeches from 2013 ACBA President Rowena Gargalicana, ACBA past presidents Cheryl Hicks and Sally Elkington, Judge Gordon Baranco, and Director of Administration and Fiance Amanda Picetti covering Ann Wassam’s almost 13 years with the ACBA.
ACBA members checking in
Judge Robert McGuiness, Judge Yolanda Northridge, and Gregory Silva
ACBA members enjoying appetizers
Rodney Low and Stephanie Choy
Judge Wynne Carville and Commissioner Thomas Nixon
Judge Judy Johnson, Ann Wassam, Cheryl Hicks, and Judge Gordon Baranco
Rowena Gargalicana and Magistrate Judge Kandis Westmore
ACBA Members and guests
Patricia Gutierrez de Sunseri, Nora Virgil, Judge Winifred Smith, Elizabeth Clark, and Matthew Quiring
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Judge Baranco and Cheryl Hicks
Sally Elkington
Rowena Gargalicana, Cheryl Hicks, and Ann Wassam
Judge Westmore, Judge Johnson, Eric Berhns, Pelayo Llamas, Phon La, Diane Luong, and David Castillo, and Judge Baranco Claudia Victorian
Judge C. Don Clay and Judge Winifred Smith
Paulina Song, Vincent Tong, Lauren Powe, David Reagan, and Michael Kelleher
Sue Ra, Brendon Woods, and Tirien Steinbach
Delia Trevino, Masanao Morimoto, Danny Lau, and Judge Yvonne Gonzalez Rogers
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A Year in a Review, 2014
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Give a life-changing gift this holiday season
What if you could give these four life-changing gifts this holiday season? 1. A secure and loving home for a child 2. Freedom from crushing medical debt for an ailing father 3. Protection from an abusive family member for an aging grandmother 4. A justice system that is open to everyone, regardless of their income With your year-end contribution to Volunteer Legal Services Corporation, you are giving all of these gifts to low-income people in our community. When our neighbors—ordinary people living and working in Alameda County—face a time of crisis, your gift can help them keep their families together, regain financial stability, or feel safe in their own homes. You can empower them to overcome their struggles by providing meaningful access to the court system. In 2014, more than 1,000 clients received essential legal services thanks to VLSC donors and volunteers. But because of shrinking court budgets and cuts in funding to legal services, the need for these services continues to grow. Our staff confronts this reality every month when VLSC legal-assistance clinics fill up within minutes of opening and when we are forced to turn clients away due to a lack of resources.
Donate online! That is why we are asking you to add the gift of justice to this year’s holiday shopping list. A year end gift of the equivalent of just one billable hour can make a lasting impact for a client in need. And, because VLSC mobilizes volunteer attorneys to serve our clients, every dollar you give will provide $5 worth of services, multiplying the number of people whose lives are changed by your generosity. Donate online at www.acbanet.org/vlsc/donate or call Whitney Ward at (510) 302-2209. Donations to VLSC, a 501(c)(3) corporation, are tax-deductible to the extent allowed by law. Thank you for giving the gift of justice this season!
Join
Discover the Power of
ASSOCIATION A Year in a Review, 2014
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Promoting Excellence—Seeking Justice
www.acbanet.org
ACBA Lawyer Referral Service
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Grow Your Practice The Lawyer Referral Service (LRS) is a public service program that provides clients a convenient way to be referred to licensed, insured and experienced attorneys like you for a reasonable referral fee of $35. Lawyers who participate in the LRS provide a free 30-minute consultation to LRS referred clients and if retained, pay a percentage to the program on client fees collected for LRS referred matters. The LRS provides an excellent opportunity to grow your client base. Many LRS referred clients are repeat customers, and often refer their friends and family to LRS panel members. In 2014, the LRS is on track to complete over 5,000 intakes from the public, and refer over 3,000 cases to its panel members, well over our 2013 numbers!
CAN’T HELP THAT CLIENT? REFER THEM TO THE LRS! Certified by the State Bar of California and the American Bar Association, the LRS has over 40 years of experience matching qualified attorneys with clients in need of legal assistance.
LRS is actively recruiting panel members for the following areas of law: • • • • • • •
Landlord / Tenant Foreclosure Elder Law Federal Employment and Workers’ Compensation Union Matters Personal Injury and Defamation/ Slander Tax Law
Special Offer New Applicants to the tenant and landlord panels get more than 50% off panel dues!
ALSO NEEDED: panel attorneys in all areas of law who serve Spanish, Cantonese, and Mandarin speakers. For more information about the LRS and to apply, please contact LRS Administrator Alyssa Firkus at (510) 302-2210 or alyssa@acbanet.org.
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A Year in a Review, 2014
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Top 10 Tips from the Demystifying Judicial Appointments Program
The East Bay Diversity Bar Coalition and the Alameda County Bar Association held a special program, co-sponsored by the State Bar's Council on Access and Fairness, on September 23, 2014 for attorneys interested in becoming a judge. The following are the top 10 tips offered by our esteemed panel: Judge Marguerite Downing, Chair of the State Bar of California Council on Access and Fairness, Judicial Committee; Jason Lee, 2014 Chair of the Commission on Judicial Nominees Evaluation; Commissioner Cynthia Loo, Chair of the State Bar Council on Access and Fairness; and Judge Charles A. Smiley, Department 1A. 1) Start keeping track of your trials early in your career. The judicial appointment application requires you to provide the total number of cases you have tried to verdict or judgment in federal or state trial courts through your entire career. Keep track of all relevant information, including: case name; case number; court; trial date; type of case; the party that you represented; the judge; the names, current
A Year in a Review, 2014
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addresses and telephone numbers of counsel for the other parties; the names, current addresses and telephone numbers of co-counsel (if applicable); and whether it was a jury or non-jury trial. 2) It is never too soon to start making your list of names. The application requires five references. In addition to the references provided, you may ask others to write letters of recommendation on your behalf—though it is recommended that you limit letters of recommendation to 2-6. If your application makes it to the State Bar Commission on Judicial Nominees Evaluation (JNE), you will be asked to provide 75 additional names. Be thoughtful about who you include on your list—you should list those who know you well and can speak to your ability to be a judicial officer. Everyone on your list will receive a JNE questionnaire. 3) Governor Brown has never appointed anyone with a typo in their application. Have someone else review your application before you submit it— someone who will look at it critically.
4) Tell people if you plan to/have submitted a judicial appointment application. The Governor’s staff is very serious about vetting judicial applicants. They will likely contact people you have worked or interacted with throughout your career—you don’t want people to be surprised when they get a call asking about you.
CLAPP MORONEY VUCINICH BEEMAN SCHELEY
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Your Partners in Success
5) Governor Brown is looking for wellrounded applicants. You don’t necessarily need to have a lot of trial experience—the Governor also considers whether an applicant: is intellectually engaged; has a diverse background; is involved in the community; can handle stress (a busy calendar); can manage a courtroom; is respectful, empathetic, and fair. 6) Know what a Google search will reveal about you. Again, the Governor’s staff is very serious about vetting judicial applicants. 7) Start acting judicial. If you have submitted an application, or even if you are just thinking about becoming a judge in the future, demonstrate that you have the talent and qualities to be a good judge in your day-to-day interactions. 8) Gain exposure in other practice areas. No one is expected to have experience in every practice area or aspect of the justice system, but you can demonstrate that you have stretched yourself. For example, take a MCLE course on family law if you are a transactional lawyer, observe a criminal trial, etc. 9) Write a letter to the Governor’s Office if… you previously submitted an application and events have transpired that could impact the review of your application. 10) Be prepared to answer the question: What have you done to improve the administration of justice? If you were not able to attend the program, and are interested in receiving the materials provided, please contact Amanda Picetti at amanda@acbanet.org. Please note a limited supply is available.
CLAPP MORONEY is a proud sponsor of the ACBA Barristers Golf Tournament • Torts/Personal Injury and Products Liability • Business and Commercial Litigation • Construction Defect and Property Damage • Employment and Labor • Environmental and Toxic Tort • Insurance/Declaratory Relief and Bad Faith • Professional Liability
CLAPP MORONEY is a preeminent civil litigation firm, providing clients with vast trial experience, and a wide array of expertise, counseling and advice. The firm has earned its stellar reputation for aggressive, efficient and resultdriven case handling. It is the goal of all our attorneys to provide clients with cost-effective legal representation and superlative results, whether by way settlement or trial. SAN FRANCISCO 505 Montgomery Street 11th Floor San Francisco, CA 94111 TEL: 415.874.3562 FAX: 415.874.3627 SACRAMENTO Esquire Plaza 1215 K Street, 17th Floor Sacramento, CA 95814 TEL: 916.503.2242 FAX: 916.503.2401
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www.clappmoroney.com 8
A Year in a Review, 2014
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2014 ACBA Installation and Distinguished Service Awards Luncheon
2014 ACBA Board of Directors and Senator Holly Mitchell
Thank you to everyone who joined us at the Berkeley City Club Friday, January 10, 2014. The festive atmosphere was punctuated by calls to service and reminders of our shared responsibility to ensure equal access to justice by State Senator Holly Mitchell and our Distinguished Service Award recipients.
Distinguished Service Award Recipients: Judge Judge C. Don Clay, Superior Court of California, County of Alameda
2014 ACBA Board of Directors taking their oath of office
Lawyer Christine Noma, Wendel Rosen, Black & Dean LLP Young Lawyer Michael Makdisi, Law Office of Michael Makdisi Law Firm Donahue Gallagher Woods LLP Community Organization BANANAS Inc.
State Senator Holly Mitchell giving the keynote speech A Year in a Review, 2014
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Âť Presiding Judge Winifred Smith and Robert Frassetto
Robert Frassetto, Judge C. Don Clay, and Senator Holly Mitchell
Robert Frassetto, Christine Noma, and Senator Holly Mitchell
Senator Holly Mitchell, Richard Winefield of Bananas Inc., and Robert Frassetto
Senator Holly Mitchell, Michael Makdisi, Robert Frassetto, and Richard Rahm
Attorneys from Donahue Gallagher Woods LLP Law Firm of the Year
Guests listening to remarks
Judges: Joan Cartwright, Morris Jacobson, Wynne Carvill, and Steven Brick
Judge Paul Herbert, Stephanie Sato and Rowena Gargalicana
Roger Allen, Judge Joan Cartwright and Malcom Sher
Judge Brenda Harbin-Forte, Christine Noma, and Margaret Fujioka
Cheryl Hicks and Toni Mims-Cochran
ACBA Board Members: Toni Mims-Cochran, Stephanie Sato, Pelayo Llamas, Rowena Gargalicana, and Micha Star Liberty
Emcee Richard Rahm, Judge Paul Herbert, and Board President Robert Frassetto
Littler Table
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A Year in a Review, 2014
TRIAL EVIDENCE — PART V: Hearsay Exceptions
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someone else on the party's behalf, if that person is authorized to make that or similar statements concerning the subject matter.
Tim H. Hallahan Attorney
«
This article is the fifth in a multi-part series on trial evidence. Hearsay exceptions are based on a combination of reliability and need. The justification for most exceptions is that cross-examination is unnecessary to test one or more of the out-of-court declarant’s four testimonial capacities–perception, memory, communication, sincerity. For example, statements of presently felt mental or physical state (EC 1250) are admissible because perception is an element of the foundation and their spontaneous nature makes it unnecessary to crossexamine regarding memory and sincerity. Where there is less inherent reliability, e.g., declarations against interest (EC 1230), the proponent must demonstrate more need for the evidence at trial, usually in the form of the declarant’s unavailability. You should be able to articulate why an exception should or should not apply by addressing the need to cross-examine and how vital the evidence is.
THE PRINCIPAL EXCEPTIONS: 1) Admissions. The party admission exception (EC 1220) should really be titled "statements of a party." Any statement of a party, if relevant, may be offered against that party; it need not be an “admission” in the classical meaning of the word. Note that you can offer only another party’s statements, not your own. Admissions can be authorized–that is, made by
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An admission can be implied by a response to someone else's statement. For example: "I told the defendant that I knew he robbed that bank, and he replied that the gun wasn't loaded." (EC 1221). Similarly, admissions can be adopted by silence if the statement is made under circumstances in which one would ordinarily deny it if it weren't true. "He said nothing when I accused him of robbing the bank." However, it is important that the party was in a position to see and hear the accusation, that she was not intimidated, and that she had not been warned that what she said could be used against her. The admissions exception can often be used to bootstrap in evidence normally inadmissible for other reasons, such as opinions and information of which the party has no personal knowledge. 2) Prior Statement. Pretrial statements of witnesses usually fall within the hearsay rule and are inadmissible. However, when the witness has made a prior statement that is inconsistent with his or her testimony at trial or hearing, the prior inconsistent statement is not made inadmissible by the hearsay rule (EC 1235). Usually prior inconsistent statements are offered during cross-examination of that witness. When offered extrinsically, the proponent must comply with EC 770 which mandates that the witness had been given an opportunity, while being examined, to explain or deny the prior inconsistent statement or that he not have been excused yet. Accordingly, when a judge asks whether an opponent’s witness may be excused, reply that due to EC 770 you ask that she be available on a telephone-standby basis. 3) Declarations Against Interest. This exception applies to nonparties whose statements are so contrary to their pecuniary, penal or social interest that they are unlikely to have been made if untrue. As noted above, be prepared to establish unavailability (EC 1230).
the commonly heard refrain “it goes to state of mind.” When this happens, your response in turn should be “whose state of mind and how is it relevant?”
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OTHER ISSUES:
Multiple Hearsay. When a statement consists of several layers of assertions–“The bystander told me that the victim said the light was green”–it may be admitted provided each out-of-court statement is non-hearsay or meets the requirements of an exception to the hearsay rule. If one fails, they all fail. Business and official records often contain multiple layers of hearsay, all of which must be analyzed.
4) Spontaneous Statements. These fit within what many of us think of as the “excited utterance” exception. To qualify, the statement must describe an event or condition perceived by the declarant while he’s still under the excitement caused by experiencing it (EC 1240). 5) Contemporaneous Statements. These are statements made by the declarant offered to explain what he’s doing while he’s doing it (EC 1241). Lawyers and judges often confuse this exception, the spontaneous statement, and the statement of mental or physical state, lumping them together in
Volunteer with VLSC! The Volunteer Legal Services Corporation (VLSC), the pro bono arm of the ACBA, is seeking volunteers to handle pro bono cases or to volunteer at pro per clinics. VLSC has volunteer opportunities in these areas of law: Adoption Bankruptcy Domestic Violence Restraining Orders Family Law
Guardianship Immigration Low-Income Landlord Nonprofit Corporations Unlawful Detainer Defense Wills and Trusts
Sign up today! Contact Director of Access Programs Elizabeth Hom at elizabeth@acbanet.org.
Unavailability. Several hearsay exceptions require, as a condition for admissibility, that the declarant be unavailable as a witness (EC 240). Note that unavailability can apply to a witness who is present or even testifying if, say, her memory has failed or she is exerting a privilege. Judges have loads of discretion in determining unavailability. Be sure to create a paper trail, tracking how much effort you’ve put into trying to get the witness to court. NEXT ARTICLE The next article, on Exhibits, can be found on page 45. Prior articles in the Trial Evidence Skills series can be found on the ACBA Blog at http://acbanews.wordpress. com/.
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A Year in a Review, 2014
» Save the Date ...
2015 ACBA Installation and Distinguished Awards Ceremony Thursday, January 15, 2015 Waterfront Hotel, Spinnaker Ballroom 10 Washington Street, Jack London Square, Oakland Registration: 5:00 p.m. Reception: 5:30 p.m. - 6:15 p.m. Program: 6:15 p.m. - 7:30 p.m. Please join the Alameda County legal community as we welcome the 2015 ACBA Board of Directors and celebrate the accomplishments of our Distinguished Service Award recipients. Network with your colleagues over a glass of wine, enjoy bountiful appetizers from Lungomare, and listen to music from accomplished violinist Kippy Marks during the reception before the awards presentation with remarks from Keynote Speaker Lateefah Simon. Distinguished Service Award Recipients: Judge—Victoria Kolakowski Lawyer—Darryl Stallworth Young Lawyer—Lauren Powe Law Firm—GJEL Community Organization—Alameda County Law Library For more information, please visit: www.acbanet.org/calendar
A Year in a Review, 2014
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OPEN HOUSE
WE MET THE NEW CEO»
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TH
APRIL
ALAMEDA COUNT Y BAR ASSOCIATION S P R I N G OPEN HOUSE
The ACBA’s Spring Open House, held at our downtown Oakland office at 11th and Broadway, was a hit! ACBA members enjoyed delicious bites from Ann’s Catering, macaroons from By C. Pasteries, sparkling wine, and great company. The ACBA’s incoming CEO Tiela Chalmers was on hand to meet members; thank you for helping welcome Tiela to the ACBA.
Ruben Sundeen, Seth Feinburg, and Austin Houvener
Sally Elkington, Nicholas King, Tiela Chalmers, Robert Frassetto, and Nedra Shawler
Judge Michael Markman, Kevin Cunningham, Diane Luong, and Commissioner Thomas Nixon
Jamie Rudman, Barbara Bryant, and Karen Kunz
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A Year in a Review, 2014
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Message from the CEO pro bono program, I didn’t know just how much help it offers to low-income litigants – even though its budget is so tiny.
Tiela Chalmers, CEO
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I’m delighted to say that it’s been six months since I joined the ACBA, and I’ve been really enjoying getting to know all of you, and the organization. My background prepared me, to some degree, for this position: I spent 10 years at Farella, Braun and Martel (then a 40-attorney firm) in San Francisco, then moved on to the Volunteer Legal Services Program at the San Francisco Bar, where I worked for 15 years (the last five as VLSP’s Executive Director). I then spent three years consulting with law firms, legal services organizations, and national non-profits on issues of access to justice. As a consultant, I spent two or three days a week in Los Angeles for almost two years, building a collaboration between legal services providers and the Court. And yet, I really wasn’t prepared for many things about the ACBA. First of all, I’m struck by how friendly people are, and the genuine community there is here. We lawyers are not always great at building personal networks, but ACBA members have done a great job of creating a robust and productive network. I’ve also been struck by our amazing staff. The ACBA is blessed with a highly qualified, very competent and committed staff. It’s really an honor to work with them. Finally, while I knew that VLSC is a very well respected A Year in a Review, 2014
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This year, as you might imagine, I’ve spent a lot of time getting to know the people, and the organization. (And I still have so many more people to get to know!) In addition to the regular business of the ACBA – three to six MCLE programs each month, membership, taking calls and making referrals through our LRS, working with low-income clients and pro bono attorneys through VLSC, and administering our CAAP program – there have been several large projects that have taken significant time. We’ve been hard at work on the revision of the CAAP rules, and the new evaluation procedures. (See CAAP Director John Fricke’s article on page 38) As ACBA Board President Robert Frassetto wrote in his article on page 4, the ACBA Board revised the bylaws, and we began the research for finding a new database (and associated website). I’ve also been doing the groundwork for the new initiatives we are planning for next year. With the leadership of our incoming President, Toni Mims-Cochran, we will be focusing next year on reaching out to law students and new admittees. Those of us who have made it through law school and those first few (often bewildering) years of practice, likely have memories of the challenges that we faced. And, unlike when I graduated, the situation newer attorneys face is all the more serious. Jobs are scarce, and opportunities to get training and mentoring harder to come by – all while the cost of law school, and its attendant debt, is soaring. We already do a lot of outreach to new attorneys – particularly through the very effective Barristers Section. This next year, we will be endeavoring to give a significant focus to this effort, across the ACBA. Of course, we will continue to provide high quality MCLE and social events for all of our members, across the spectrum of experience. We have other projects brewing, as well. We are
» working with other local Bar Associations, as well as legal services providers, to get as ready as we can for a disaster. Hurricane Katrina and Super Storm Sandy taught us that the legal needs of the community in the wake of a disaster are enormous, and that building an infrastructure for addressing those needs in advance is very useful. We are preparing to expand our LRS services, keep our CAAP program going, and deploy the many volunteer attorneys who typically step forward in such situations to assist those who are destitute. Apart from our disaster related work, we will be working to reach out to Alameda County businesses, to build partnerships if we can with those who play such a strong role in our community, and who interact with our members regularly as neighbors
and clients. On the VLSC side, we are working on a few new projects, including expanding our Bankruptcy and Family Law clinics, and working with the Court to pilot a volunteer Unlawful Detainer mediation project. And, of course, we’ll continue to work very closely with the Courts. I am so excited to work on these exciting projects! If any of these sound interesting to you, give me a call (510.302.2208). There’s a part for you to play. And in any case, I’d love to hear from you, and learn what you love about the ACBA, and what you’d like to see changed. Drop me an email: tiela@acbanet.org.
PLANNED PROJECTS FOR NEW OR YOUNG ATTORNEYS IN 2015 •
A “boot camp” MCLE program for new admittees, covering everything from “where do I stand when I go to Court?” to the basics (and mechanics) of taking a deposition, to “where do I start in drafting an agreement?” This program might take place over a weekend or once a week for a number of weeks, and participants could earn a certificate.
•
Increased CLE programming targeted to new attorneys.
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A possible job matching event or program, to connect interested members with law students or new admittees looking for a full or part time job.
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Workshops focused on how to network and build a practice.
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A possible “incubator” program – funded by participating law schools, this two-year program would prepare participants to open a practice with a low-fee or sliding scale fee structure, with extensive training and mentoring. Low-fee representation is key for people whose income is just a little to high for them to qualify for legal aid, but who cannot possibly afford a regular-fee attorney. Across the country, local bar associations and legal aid organizations are looking more at how to be responsive to the needs of this group.
•
Greater encouragement for our practice area sections to co-sponsor MCLE programs, and help Barristers Section members in integrating into specific practice area sections.
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Expanding our Barristers mentoring program. 16
A Year in a Review, 2014
Justice for All:
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Celebrating Pro Bono
On May 22, 2014 VLSC volunteers, supporters, and staff gathered in Scott’s Pavilion for the ninth annual Justice for All: Celebrating Pro Bono dinner and silent auction. We had a great time celebrating the exceptional commitment of our volunteers, trying to outbid our colleagues in the silent auction, and joining together as a community to support pro bono legal services. During the dinner ceremony, VLSC honored five volunteers for their outstanding efforts in providing access to justice in Alameda County. This year’s award recipients represent the diversity of the VLSC volunteer corps: attorneys and non-attorneys, large firm partners and solos, volunteers joining us for the first time and those who have been with us for decades. Congratulations to all of our award recipients, and a big thank you to all the VLSC Volunteers for your hard work and enthusiasm.
The dinner program also featured remarks from Oakland attorney and author Joshua Safran. Joshua’s work on behalf of incarcerated survivors of domestic violence is featured in the award winning documentary Crime after Crime, and his recently published memoir, Free Spirit: Growing Up On the Road and Off the Grid has also received critical acclaim. Joshua shared how pro bono legal services changed his life. The evening demonstrated the powerful impact of the legal services that are available to low-income people in our community thanks to your support. Thanks to the generosity of 39 sponsors, numerous East Bay businesses and organizations that donated silent auction items, and all who purchased tickets, bid in the auction, or participated in our text-todonate campaign, VLSC raised more than $53,000— 15% of our entire yearly budget!
Mentor of the Year Jason Elter, Pro Bono Leadership award recipient Jonathan Wong, Keynote Speaker Joshua Safran, Volunteer of the Year Nadine Burg, Volunteer of the YearRising Star Nicole Reyes, and Volunteer of the Year (non-attorney) Cindy Elwell
2014 Wiley W. Manuel Certificate for Pro Bono Legal Service Recipients A Year in a Review, 2014
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2014 VLSC Board of Directors
Gold Sponsors
AT&T Bingham Osborn & Scarborough LLC California Constitution Center Continuing Education of the Bar—California JAMS—The Resolution Experts Lombardi, Loper & Conant LLP Morrison & Foerster LLP
Silver Sponsors
Aiken Welch Court Reporters James and Judge Carol Brosnahan Chevron Hereford Kerley LLP King & Spalding LLP Meyers Nave Thomson Reuters Wendel Rosen Black & Dean LLP
Jane Kaplan, Nadine Burg, Nikki Clark, and Judge Stephen Pulido
Michael Loeb bidding in the VLSC Silent Auction
VLSC Board President Michael Johnson
Bronze Sponsors
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Alameda Contra Costa Trial Lawyers’ Association Allen Matkins Leck Gamble Mallory & Natsis LLP Bornstein & Bornstein Ericksen Arbuthnot Farella Braun + Martel LLP Frassetto Law LLP Kornfield, Nyberg, Bendes & Kuhner, PC Ama L. Lacy, M.D., FACS Mechanics Bank Schiff Hardin LLP Sundeen Salinas & Pyle SymbioSystems, LLC Wactor & Wick LLP Wasserman-Stern Zanghi Torres Arshawsky LLP
VLSC supporters at the Silent Auction
Richard White and Elizabeth Clark
Carolyn Henel bidding in the VLSC Silent Auction
Wendel Rosen attorneys participating in the VLSC “Text-to-Pledge” Campaign
Keynote Speaker Joshua Safran
Jonathan Wong accepting the VLSC Pro Bono Leadership Award
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A Year in a Review, 2014
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ADR Section The ADR Section produced six MCLEs in 2014: • • • • • •
Recognizing Mental Health Issues in April; Secrets to Settling Cases: Tips From the Bench in May; Leverage & the Psychology of Influence in June; Ethical Dilemmas in Elder Mediation in September; Mediating Construction Defects in October; and The Road to Cultural Understanding in a Diverse World, in November.
The 2014 Executive Committee: Chair Susan Davidson, Co-Chair Frank Russo, Secretary R. Camile King, Marc Alan Fong, Malcom Sher, and Teri Sklar.
Ethical Dilemmas in Elder Mediation with Dana Curtis and John O’Grady
The Alternative Dispute Resolution (ADR) Section promotes litigation alternatives by providing a forum for information-exchange and discussion, and serving as a liaison with the judiciary.
Bankruptcy Section
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The Bankruptcy Section provides educational and networking opportunities for bankruptcy and commercial law attorneys, and is a liaison with the judiciary. The Bankruptcy Section produced seven MCLE programs and one social in 2014: • • • • • • • •
Ethics for Bankruptcy Attorneys in January; How to Help More Clients: New Fee Provisions in Chapter 13 Bankruptcy in March; New Rules for Discharging Taxes in Bankruptcy and Cancellation of Debt Income in June; Surviving your 1st Day of Bankruptcy Court in July; Guarding the Integrity of the Bankruptcy System in September; Bankruptcy Pitfalls For Litigators in September; Chapter 13 Plan Modifications in October; and Bankruptcy Fall Social at Lungomare in November.
A Year in a Review, 2014
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New Rules for Discharging Taxes in Bankruptcy and Cancellation of Debt Income with Basil Boutris
The 2014 Executive Committee: Chair Andrew Christensen, Vice-Chair Lawrence Szabo, Secretary Eric Tetrault, Mark Bostick, Basil Boutris, Carl Gustafson, Phillip Ghaderi, Nina Ghazvini, and Austin Houvener.
Barristers Section The ACBA Barristers Section is designed for attorneys who have been practicing for ten years or less to help build their skills and professional network. The Barristers are one of the ACBA’s most active sections, producing multiple CLEs, socials and other events each year.
»
Regardless of the theme or the venue, each social is designed to create opportunities to network and develop friendships as well as to relax and have some fun.
Barristers Mentorship Program The Barristers Mentorship Program was created to link new attorneys (mentees) with seasoned attorneys (mentors) in Alameda County, so that mentees may gain support and guidance as they transition from the study to the practice of law. For mentors, participation in the program is an opportunity to give back and support the profession of law, and help shape its future by coaching the mentees and sharing their experiences and life lessons. Why the Legal System Brings Unhappiness to Lawyers - and What To Do About It! with Janet Sobel
Minimum Continuing Legal Education (MCLE) programs
Barristers and Judges Social
Socials Throughout the year, the Barristers gather to socialize and network. Their events range from simple gatherings at The Trappist or Dogwood, to co-sponsored and more elaborate events such as attending an A’s game (pictured) or a Trivia Night at The Port Workspace.
The Barristers Section produced three MCLE programs in 2014: • Effective Legal Writing: How to Not Write Like a Lawyer (co-sponsored with the Family Law Section) in May; • Why the Legal System Brings Unhappiness to Lawyers in September; and • How and Why You Need to Cross Examine Witnesses in November. Dine with a Judge The ACBA and Barristers are committed to building a stronger relationship between the bench and bar in Alameda County. The Barristers Dine with a Judge program provides young attorneys the unique chance to enjoy a delicious lunch or dinner and casual conversation with some of the area’s best judges. The 2014 Executive Committee: Chair Lauren Powe, Vice-Chair Vincent Tong, Secretary Dave Anderson, Michael Makdisi, Jo-Anna Nieves, David T. Reagan, Alberto Rosas, Casey Williams, and Sibyl Wong.
Barristers Night Out: Battle of the Bay Giants vs A’s
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A Year in a Review, 2014
10th Annual Barristers Golf Classic
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Friday, August 15 • Metropolitan Golf Links CONGRATULATIONS TO OUR WINNERS!
WINNING TEAM Ignascio G. Camarena, Jani Matsui, Khaled Taqi-Eddin and Matthew Graham PUTT-WITH-A-GAVEL: Jani Matsui
Elan C. Lambert CLOSEST TO THE PIN LONGEST DRIVE (Women)
Andy Gschwind CLOSEST TO THE PIN (Men)
James Aguilera LONGEST DRIVE (Men)
THANK YOU TO OUR EVENT SPONSORS! Bennett, Samuelsen, Reynolds, Allard, Cowperthwaite & Gelini; Bond Services of California; Clapp Moroney | Bellagamba Vucinich | Beeman Scheley; Emerick and Finch; HSNO The Forensics Firm; JAMS; Aiken Welch; Bad Boys Bail Bonds; Bingham Osborn & Scarborough
A Year in a Review, 2014
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Business Section The Business Section provides MCLE programs and networking events for business and tax attorneys and other legal professionals. The Business Section produced five MCLE programs and one social in 2014: • • •
•
Better Client Communications in January; Business Section Social at the Tribune Tavern in March; What You Need to Know When Representing Startups, a Three-Part Series (co-sponsored by the Barristers Section), in April, August and November; and Privacy In the Workplace (co-sponsored by the Labor and Employment Section) in September.
In addition to five popular MCLE programs, the Business Section also produced four issues of the Business Section Newsletter, full of the latest business law news and announcements.
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Representing Startups - Part II MCLE with Sanjiv Dhawan and Michael Indrajana in August
The 2014 Executive Committee: Chair Brian Ripley, Vice-Chair Laurie Sanders, Secretary Rafael Pacquing, Elaine Betts, and Tom Maier.
Environmental Law Section The Environmental Law Section produced two MCLE’s and one social in 2014:
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• •
• Meet the Regulators Reception in May
The Environmental, Land Use and Sustainability Section has steadily grown and consistently provides members with quality educational and networking opportunities focused on land use, environmental law, and sustainability issues.
Environmental Regulatory Developments and Trends: State and Federal, in May; Emerging Trends in Urban Development: Will New Land Use Laws Revitalize or Cripple San Francisco? (co-sponsored with the USF School of Law’s Environmental Law Society), in November; and The popular Meet Your Environmental Regulators Reception, in May.
The 2014 Executive Committee: Chair Peter Ton, Vice-Chair Kimberley Chew, Secretary Jason Holder, Christine Caro, Jewell Hargleroad, Melissa Horst, Patrick Hubbard, and Chris Noma.
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A Year in a Review, 2014
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Family Law Section
The Family Law Section provides educational and networking opportunities for family law attorneys, and serves as a liaison between the Family Law Courts, Family Court Services, and the ACBA. The Family Law Section sponsored six MCLE’s in 2014: • •
• • •
Domestic Violence Statutes in March; Advanced Training on Temporary Spousal Support Calculations For the Seasoned Family Law Attorney, a two-part series held in April and May (pictured); Tracing: How, Why and the Burden of Proof in June; Ins and Outs of Minors Counsel in August (pictured); and Uncontested Judgments in September.
The 2014 Executive Committee: Chair Constanza Cabello, Vice-Chair Pamela Ross, Secretary Suzanne Ahlport Tong, Anna Bednarczyk, Chris (Tobi) Erickson, Joseph Gacula, Evelyn Herrera, Yasmin James, Amanda List, and Erin Levine.
Temporary Spousal Support Calculations For the Seasoned Family Law Attorney, Part II with Commissioner Oleon and Nikki Clark
Ins and Outs of Minors Counsel with Erlinda Castro and Carole Raimondi
Intellectual Property Section
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The Intellectual Property Section provides educational and networking opportunities for attorneys focused on copyrights, patents, trademarks, trade secrets, and more. The 2014 Executive Committee: Sharon Adams, James Cypher, Oliver Dunlap, Beth Goldman, Andrew Jacobson, Dawn Newton, and Kate Spelman. The Section Executive Committee welcomes new members! Submit your application to Hadassah Hayashi, Membership and Education Coordinator, at hadassah@acbanet.org.
A Year in a Review, 2014
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Labor and Employment Section The purpose of the Labor and Employment Law Section is to conduct continuing legal education programs, publish and distribute educational and professional materials and undertake other activities that enhance the competence and professional development of lawyers and improve their ability to deliver the highest quality of professional legal services. The section sponsored two regular MCLE programs in 2014: • Complex Leave Laws Applicable to California Employers in July; and • Using Meditation to Interrupt Addictive Behaviors, to be held in December.
»
San Francisco Counties, seasoned employment law attorneys, mediators, and technology consultants. The 50 attendees started the morning with an employment law/wage and hour case update from Michael Loeb, Hunter Pyle and Mark Delgado, then an employment litigation judges panel featuring Judge Wynne Carvill, Judge George Hernandez, and Judge John True III. The afternoon sessions included assessing the value of employment law cases with Cathy Yanni, David Lowe, and Mark C. Peters; and using technology in the courtroom to your advantage with Lawrance Bohm and Gary Lafayette. The Labor and Employment Section also produced a newsletter in July, announcing the day-long Symposium and containing articles on recent changes to pregnancy regulations, transit benefits, and an update on Iskanian v. CLS Transportation Los Angeles (S204032). A copy of the newsletter may be found on the Labor and Employment Section’s page on the ACBA website.
Technology In the Courtroom at the L&E Symposium with Lawrance Bohm and Gary Lafayette
L&E Social at Urban Cellars in October
Employment Litigation Judges Panel at the L&E Symposium with Judge Wynne Carvill, Judge George Hernandez, and Judge John True III
On September 19, 2014 the ACBA Labor and Employment Law Section held its Fourth Annual Labor and Employment Symposium, a special full day of MCLE programs (five hours of MCLE credit) designed for labor and employment attorneys, at Scotts Seafood Restaurant in Oakland. Panelists included judges from both Alameda and
The Labor and Employment Section’s End of the Year Social was held in October at the new Urban Legend Cellars in Oakland. The reception was the perfect opportunity to enjoy casual conversation while expanding one’s professional network. The 2014 Executive Committee: Chair Patrick Kitchin, Vice-Chair Robert Nuddleman, Secretary Jamie Rudman, Matthew Bainer, Jocelyn Burton, Delia Isvoranu, Emily Nugent, Erin Winters, and Emeritus members James Diamond and Alexander “Sandy” Van Broek. 24
A Year in a Review, 2014
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Real Estate Section The Real Estate Section held nine MCLE trainings in 2014: • • • • • • •
Phillip Babich and Mark Katz at the Real Estate Section Social
•
The Real Estate Section strives to provide an ongoing forum for our members to network and become familiar with existing and new laws affecting both transactional and litigation related real estate matters. The Executive Committee spends a significant amount of time planning and arranging for monthly continuing education programs.
•
Top Real Estate Cases of 2013 in March; Tree Related Disputes and Litigation in April; What the Real Property Practitioner Should Know About Property Coverage in May; Nuts & Bolts of Commercial Leases in June; Residential Real Estate Sales & Brokerage Update in July; Illegal Rental Units in August; Ethics of Saving Client Files in the Cloud in September; Recent Trends Used in Mediation in Real Property Disputes in October; and Entity Selection and Taxation, in November.
The Section also had a social in September (pictured) at Lost & Found in uptown Oakland. The 2014 Executive Committee: Chair Randy Sullivan, Vice-Chair Jim Hildreth, Secretary Patricia Gutierrez de Sunseri, Clifford Fried, Matthew Quiring, John (J.R.) Richards, Dana Sack, and Jack Schwartz.
Trial Practice Section The Trial Practice Section provides MCLE programs for trial lawyers, including litigation strategies and court procedures, and serves as a liaison between the ACBA and the Superior Court on issues effecting the local bar.
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The Trial Practice Section produced three MCLE programs aimed at assisting trial practitioners in 2014: • • •
Lights, Camera, Litigation: Effective Handling of Audio & Visual Evidence at Trial in May; Mediating the Smaller Case: A Moderated Panel Discussion in June (pictured); and Expert Witnesses 101: Best Practices for Presenting (and Opposing) Expert Testimony, to be held in December.
The Section also produced two 20-page newsletters full of legal articles, judicial profiles, and information on upcoming programs. A Year in a Review, 2014
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Mediating Smaller Cases with Judge James R. Lambden, Judge Bonnie Sabraw, and Charles A. Hansen
The 2014 Executive Committee: Chair Michael Shklovsky, Vice-Chair John Patton, Secretary Carl Ciochon, Justin Bosl, Colin Bowen, Erin Daly, Eric Ivary, Suizi Lin, Gregory McCormick, and Emertius member David Goldman.
Trusts and Estates Section The Trusts and Estates Section provides MCLE programs and networking opportunities for trusts and estates attorneys. In 2014, the Trusts and Estates Section produced one MCLE program: •
Mark Schmuck, an attorney for the law firm of Temmerman, Cilley & Kohlmann, LLP presented the February program Case Interrupted: What to Do When Your Client Dies in February
Case Interrupted: What to Do When Your Client Dies (co-sponsored with the CEB) in February.
In the event that a client dies, a multitude of issues arise, some quite complex. In this 1-hour Legal Ethics program designed for the general civil litigator, trusts and estates litigator Mark Schmuck from Temmerman, Cilley & Kohlmann, LLP, in San Jose, took participants step by step through what to do when a client dies unexpectedly. Mark also discussed what ethical and legal responsibilities fall to the attorney of record for a deceased client.
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The ACBA Trusts and Estates Section is in a period of reinvention and re-building. The Section Executive Committee welcomes new members! Submit your application to Hadassah Hayashi, Membership and Education Coordinator, at hadassah@acbanet.org.
The 2014 Executive Committee : Kristen Bargmeyer, Richard Lee, and Beth Trittipo.
The attorneys of Hartog & Baer represent a wide range of clients and parties seeking to mediate, settle or litigate challenging trust and estate issues. We often advise other attorneys on trust and estate law. We are regularly called upon as litigation consultants and to provide expert testimony on trust and estate tax issues, as well as the standard of care expected for attorneys and fiduciaries practicing in this field. John A. Hartog and David W. Baer also regularly serve as mediators in trusts and estates disputes. (925) 253-1717 4 Orinda Way, Suite 250-B, Orinda, CA
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A Year in a Review, 2014
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Updates from the State Bar
ETHICS HOTLINE
FEE ARBITRATION
Did you know that the State Bar operates an ethics hotline to respond to your legal ethics questions?
For over 30 years, the ACBA proudly operated a voluntary fee arbitration program for the local community. This valuable public service offered clients and attorneys a cost efficient and timely way to resolve their fee disputes.
From the State Bar’s Website, “the Ethics Hotline is a confidential telephone research service for attorneys. This service is staffed by specially trained paralegals who can refer callers to the California Rules of Professional Conduct, State Bar Act sections, published bar association ethics opinions and other relevant authorities. Although the Ethics Hotline does not render opinions or give advice, this guidance serves as a valuable resource that can jump-start legal ethics research and aid lawyers in making informed decisions about their legal ethics questions.” Attorneys can reach the Ethics Hotline from 9 a.m. to 5 p.m. on weekdays by calling 800-2384427 (800-2-ETHICS) from within California, or 415-538-2150 when calling from outside of California.
A Year in a Review, 2014
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While the ACBA appreciates the value of this service, it could not continue running the program at a deficit year after year. In early 2013, the ACBA Board of Directors voted to wind down the program. No new cases were accepted as of April 1, 2013 and all fee arbitration inquiries are now directed to the State Bar. Attorneys who have a fee dispute with a client must use the State Bar’s version of the Notice of Client’s Right to Fee Arbitration form. (A copy of this form may be found on page 28 for your convenience. ) The form has been approved by the State Bar Board of Trustees and contains the State Bar seal to ensure that lawyers are providing clients with the correct form.
Notice of Client's* Right To Fee Arbitration Client’s Name:
Attorney’s Name:
Client’s Address:
Attorney’s Address:
Client’s City, State & Zip:
Attorney’s City, State & Zip:
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You have an outstanding balance for fees and/or costs for professional services in the amount of $ charged to you in the matter of I have filed a lawsuit against you in the:
Court:
Case No.:
Address: I have filed an arbitration proceeding against you with the:
Agency:
Case No.:
Address: No lawsuit or arbitration proceeding has yet been filed but may be filed if we do not resolve this claim.
You have the right under Sections 6200-6206 of the California Business and Professions Code to request arbitration of these fees or costs by an independent, impartial arbitrator or panel of arbitrators through a bar association program created solely to resolve fee disputes between lawyers and clients. You will LOSE YOUR RIGHT TO ARBITRATION UNDER THIS PROGRAM if: 1. YOU DO NOT FILE A WRITTEN APPLICATION FOR ARBITRATION WITH THE BAR ASSOCIATION WITHIN 30 DAYS FROM RECEIPT OF THIS NOTICE USING A FORM PROVIDED BY THE LOCAL BAR ASSOCIATION OR STATE BAR OF CALIFORNIA FEE ARBITRATION PROGRAM; OR 2. YOU RECEIVE THIS NOTICE AND THEN EITHER (1) ANSWER A COMPLAINT I HAVE FILED IN COURT; OR (2) FILE A RESPONSE TO ANY ARBITRATION PROCEEDING THAT I HAVE INITIATED FOR COLLECTION OF FEES, AND/OR COSTS, WITHOUT FIRST HAVING SERVED AND FILED A REQUEST FOR ARBITRATION UNDER THIS PROGRAM; OR 3. YOU FILE AN ACTION OR PLEADING IN ANY LAWSUIT WHICH SEEKS A COURT DECISION ON THIS DISPUTE OR WHICH SEEKS DAMAGES FOR ANY ALLEGED MALPRACTICE OR PROFESSIONAL MISCONDUCT. I have the right to file a lawsuit against you if you give up your right to mandatory fee arbitration. If I have already filed a lawsuit or arbitration, you may have the lawsuit or arbitration postponed after you have filed an application for arbitration under this program. I have determined that: There is a local program which may have jurisdiction to hear this matter. The arbitration program listed below is available to you: Name of Program: Address: City, State & Zip: Telephone No.: You may wish to check the State Bar’s website at www.calbar.ca.gov to see if there are other programs available to you. There is no approved local program which has jurisdiction to hear this matter. The State Bar of California will conduct fee arbitration (1) where there is no approved local program, (2) where there is a local program but it declines for any reason to hear your case, (3) where there is a local program and you wish non-binding arbitration of this dispute and the local program refuses to allow non-binding arbitration of your dispute, or (4) if you believe you cannot receive a fair hearing before the local bar named above. If you need assistance, please contact Mandatory Fee Arbitration, State Bar of California, 180 Howard Street, San Francisco, CA 94105-1639, (415) 538-2020.
Date:
Attorney:
*The request for arbitration may also be made by a person who is not the client but who may be liable for or entitled to a refund of attorney’s fees or costs.
(Mandatory State Bar Approved Form Rev. March 2013)
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A Year in a Review, 2014
»2014 Summer Reception Thank you to all who joined us on the Bocanova patio for the 2014 ACBA Summer Reception on July 24! Over 200 attorneys, judges, legal services professionals and law students mingled, networked and enjoyed the warm summer evening shaded by Bocanova’s wide umbrellas.
Commissioner Jason Clay, Toni Mims-Cochran, Robert Frassetto, and Barbara Bryant
Jamie Rudman, Rachel Ginsburg, Lara C. Smith, and Judge Bonnie Sabraw
ACBA members and guests enjoying Bocanova’s patio
Panos Lagos, Claudia Glade, Judge Brad Seligman, and Frank Russo
Briana Jones, Manny Fortes, and Mey Sactern
ACBA Barristers and guests
A Year in a Review, 2014
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Judge Tara Desaultels, ACBA guest, Richard Baskin, Judge Stephen Pulido, and Commissioner Glenn Oleon
Pelayo Llamas and Judge Victoria Kolakowski
Judge Delbert Gee, Joanna Barron, Emma Gartner, Kate Brown, and Doris Gee
Peggy Chern, Elaine Lee, and Élan Consuella Lambert
Jeshawna Harrell , Noel Walton, and Kathy Walton
Sally Elkington, Cheryl Hicks, and Charles Bendes
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A Year in a Review, 2014
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ACBA LEADERSHIP FIRMS The Alameda County Bar Association is proud of the relationships it has built with law firms throughout the county. Working together, we have the opportunity to enhance the practice of law and the administration of justice in Alameda County. The Leadership Firms Program recognizes and rewards those law firms of ten or more attorneys that have 100% membership in the ACBA (i.e., every one of the firm’s Alameda County attorneys is a member of the ACBA). Thank you for your support!
For more information about Leadership Firms, or to join this august group, please contact Hadassah Hayashi, Membership and Education Coordinator, at 510-302-2200 or hadassah@acbanet.org.
A Year in a Review, 2014
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Thank You, Guardians of Justice!
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Access to legal assistance can mean the difference between food and hunger, medical assistance and needless physical suffering, economic stability and bankruptcy. As lawyers, we have an ethical responsibility to help. The Guardians of Justice campaign enables large firms, small firms, and solos to partner with the ACBA Volunteer Legal Services Corporation (VLSC) to bridge the justice gap in our community. Participating firms make a commitment to support VLSC on an annual basis. Thanks to the generous support of these Guardians of Justice firms, VLSC is able to organize more than 400 volunteer attorneys to help more than 1,000 clients obtain the access to justice they need and deserve. To learn more about becoming a Guardian of Justice in 2015, please contact Director of Access Programs Elizabeth Hom at 510-302-2216 or elizabeth@acbanet.org.
Roisman Henel LLP attorneys and Joshua Safran
Donahue Fitzgerald LLP attorneys and Joshua Safran
Boies, Schiller & Flexner LLP attorneys and Joshua Safran
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A Year in a Review, 2014
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Dine Around for Justice
Every August, Dine Around for Justice is a chance for VLSC supporters and staff to do two of our favorite things: share the importance of pro bono work with people outside the legal community and eat at some of Oakland’s most celebrated and community minded restaurants. In 2014, we were excited to welcome Lungomare as a first time Dine Around for Justice partner, and grateful for the continued participation of three restaurants who have supported us for many years: Bay Wolf, Bocanova, and Doña Tomás. Each of these restaurants generously agreed to give 15% of one evening’s revenue to support critical legal services in our community.
Thanks to all of you who helped spread the word about the need for legal services while sipping margaritas, nibbling on deviled eggs, and devouring apricot cobbler. (We have it on good authority that none of the calories count when they’re for charity.) A special thanks to the owners and staff at all of the participating restaurants for their enthusiastic promotion of Dine Around for Justice, their exceptional culinary skill and hospitality, and their generous financial support of VLSC. We hope you will continue to dine with them all year round!
Margaret and Richard Roisman and guests at Lungomare
Cheryl Hicks and Toni Mims-Cochran at Lungomare
Presiding Judge Winifred Smith and Elizabeth Clark at Bay Wolf
Family Law Attorneys at Bay Wolf
ACBA Board Members at Bocanova
Nikki Clark and guests at Bocanova
Attorneys of Roisman Henel at Doña Tomás
ACBA Barristers at Doña Tomás
A Year in a Review, 2014
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The Poverty Simulation: A Legal Ethics Interactive Workshop
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The Poverty Simulation is a unique training for attorneys, staff, service providers, students and others who are interested in learning about the challenges and situations that low-income people deal with day to day. It offers the chance to understand how to work more effectively with members of this community, and to consider critically the ways in which we deliver services. On October 1, 2014 a group of local attorneys and law students gathered in San Francisco to join ACBA CEO Tiela Chalmers in the simulation. This role play simulated a one-month time frame, with each week consuming a 15-20 minute period. Participants were divided into “families,” ranging in size from one to five persons. Each group was assigned a different life scenario, and volunteers lived the life of that family for one month, trying to work and access benefits, buy food, and maintain housing. The training also used volunteers to play the vital roles of community resources, such as the bank, the employer, the doctor and other resources the family members interacted with during the “month.” The simulation was very detailed and had an impact on participants that cannot be conveyed by books. It strives to educate pro bono attorneys, paralegals, legal assistants and law students about the realities our low-income clients face day to day, and the impact pro bono services have on these individuals and families. Keep an eye out in 2015 for the next opportunity to participate! The sole police officer
Evicted
A family of five plans for the week
U Trust Us Bank
Sweeny Mortgage and Realtors
Quik Cash: Payday Loans
County Jail
The drug kingpin and her top lieutenant
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A Year in a Review, 2014
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Court Appointed Attorneys Program John Fricke
Dorothea Lange, untitled (Public Defender), 1957. © The Dorothea Lange Collection, the Oakland Museum of California, City of Oakland. Gift of Paul S. Taylor.
The above photos beautifully illustrates Alameda County’s long and distinguished history of providing legal representation to its indigent criminal defendants. Dorothea Lange took these photos (“untitled (Public Defender),” and “Pulich in Court,”) in 1957 as part of her Public Defender series. As a former public defender, I see in the lawyer’s face the high stakes involved in the case. The lawyer depicted in the photos is Martin Pulich, the Alameda County Public Defender in 1957. That year, the Alameda County Public Defender’s Office celebrated its thirtieth year representing indigent defendants. Alameda County was far ahead of its time—the Gideon v. Wainright case, in which the U.S. Supreme Court guaranteed a lawyer for each indigent criminal defendant, would not be decided until 1963. The ACBA has been part of this honorable tradition since 1976. In that year it entered into its first contract with Alameda County to administer a program that A Year in a Review, 2014
35
Dorothea Lange, Pulich in Court, 1957. © The Dorothea Lange Collection, the Oakland Museum of California, City of Oakland. Gift of Paul S. Taylor.
“For nearly forty years, the ACBA’s Court Appointed Attorneys Program has sent lawyers to court to counsel defendants at the outset of their cases” matches qualified attorneys with newly charged indigent defendants whom the Public Defender’s Office cannot represent due to a conflict (e.g., in a multiple defendant case, the PD’s Office can only represent one defendant). For nearly forty years, the ACBA’s Court Appointed Attorneys Program has sent lawyers to court to counsel defendants at the outset of their cases, provided funding for the investigators and experts needed in preparation for trial, paid the lawyers for their work, and been responsive to the needs of the government agencies that operate in the criminal courts.
» In the past two years, CAAP has been undergoing major changes. All four staff positions turned over in 2014. In addition, under my predecessor, CAAP has transitioned from a system of flat fee for most cases, to hourly rates. The system of submitting attorney hours has been streamlined by switching from paper submissions to an online billing system. Since joining the ACBA in May, I have sought to build on these accomplishments. In July, the CAAP administrative operation transitioned to paperless record keeping. In August, CAAP launched an ambitious effort to conduct a peer review of all 150 CAAP lawyers—the first time in CAAP’s history that its lawyers have been systematically evaluated. In keeping with my push to move CAAP solidly into the digital age, the anonymous, peer-review survey was conducted via an online provider. 220 reviewers (judges, district attorneys, public defenders, and private criminal defense lawyers—mostly CAAP
Breakdown of CAAP Attorney Peer-Reviewed Surveys by Reviewer Judges
30% 13%
19%
DAs PDs Other Criminal Defense Attorneys
38%
attorneys) completed approximately 2,500 reviews. The data from the peer-review surveys will be presented to CAAP’s nine-member Advisory Committee who will select the lawyers for the 2015 CAAP Panel based on this data. In 2015, CAAP lawyers will continue to provide their clients the vigorous defense depicted in Dorothea Lange’s photos of Martin Pulich.
CAAP Socials
Joseph Blakely, Ray Keller, and Tim Hallahan
Sharon Ceasar and Sierra Dugan
Steven Alpers, Louis Goodman, and Darryl Billups
Arthur Mitchell and Tiela Chalmers
Michal Tal, Daniel Shriro, and Mary Dang
Heather and Bella Chang and Juliet Gee
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A Year in a Review, 2014
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The Rise of Legal Cannabis the world.
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Over the past two decades, increased awareness of the benefits of cannabis as well as the harms associated with its prohibition have fueled a remarkable shift in the public's perception of the plant. That shift in public opinion, coupled with the persistent efforts of advocacy groups and industry associations has caused many jurisdictions, both in the United States and abroad, to start decriminalizing and legalizing cannabis.
Introduction to Cannabis Cannabis, more commonly known as marijuana or hemp, is a genus of flowering plants indigenous to South and Central Asia. It has been grown for food, medicine, and industrial uses for several thousand years. For much of human agricultural history, it was one of the most widely grown crops in the world.
As of the writing of this article, 23 states have approved the medical use of cannabis and four states and the District of Columbia, have legalized its use by adults over the age of 21 regardless of medical need. These legal changes have given rise to one of the fastest growing industries in the country, with legal cannabis sales estimated to have grown by 68% in 2014 to over $2.5 billion.
Hemp is cannabis grown for industrial purposes and has only nominal amounts of THC, the compound responsible for marijuana's "high." Hemp's myriad uses include the production of rope, paper, textiles, building materials, bioplastics, ethanol, biodiesel, food, and an estimated 25,000 other applications.
As more and more cannabis sales are shifted from the black market to legal markets, the need for legal advice to help businesses navigate the rapidly evolving patchwork of regulations is increasing dramatically.
David Abernathy
Marijuana, hemp's higher THC cousin, has shown virtually unrivaled safety and efficacy in the treatment of a wide-ranging array of medical conditions, including chronic pain, insomnia, Alzheimer's, osteoporosis, HIV, cancer, diabetes, MRSA, epilepsy, arthritis and dozens of others, including many conditions for which no other suitable treatments exist. Cannabis is now one of the most studied plants in the world with nearly 30,000 peer reviewed journal articles published on the topics of cannabis and its primary therapeutic compounds, cannabinoids. Beginning in the early 20th century, a series of campaigns based largely on misinformation have served to restrict and criminalize cannabis' cultivation and use in jurisdictions around the world. The result of these policies in the United States has been a war on drugs that is largely responsible for our status as the country with the highest incarceration rates in
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A Brief History of Marijuana Laws The first law regarding cannabis governing what would later become the United States was a decree made by King James I of England in 1619 requiring each colonist to grow at least 100 cannabis plants. Cannabis continued to play a vital role in the development of the United States for centuries to come. It wasn't until the early 1900's that marijuana - and by extension hemp - began to be viewed as problematic. The Marijuana Tax Act In 1930 Harry Anslinger, former assistant commissioner of the Bureau of Prohibition, was appointed commissioner of the newly-formed Federal Bureau of Narcotics. After the repeal of the Volstead Act in December, 1933, he launched a systematic campaign of misinformation designed to vilify marijuana and its users and petitioned Congress to pass a law outlawing the substance. Due
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to the 10th Amendment, the federal government lacked authority to ban marijuana. However, in 1937 Congress passed the Marijuana Tax Act which required that all importers, manufacturers, and cultivators purchase a tax stamp for marijuana. By refusing to issue tax stamps the federal government effectively rendered marijuana illegal overnight.
2. The drug or other substance has no currently accepted medical use in treatment in the United States.
The Controlled Substances Act In 1969, the Supreme Court held the Marijuana Tax Act to be unconstitutional. In 1970 Congress repealed the Marijuana Tax Act and in the same bill, passed the Controlled Substances Act (CSA). The CSA created five schedules into which most drugs would be placed (alcohol and tobacco being two notable exceptions). The DEA and the FDA were given joint responsibility for determining which substances belonged in which schedule. Schedule I - the most restrictive schedule - is comprised of substances that meet all three of the following criteria:
Marijuana, and its cannabinoids are listed in Schedule I of the Controlled Substances Act. Setting aside any potential for abuse, marijuana very clearly does not meet the second and third criteria.
1. The drug or other substance has a high potential for abuse.
3. There is a lack of accepted safety for use of the drug or other substance under medical supervision.
In addition to the thousands of peer reviewed studies showing medical uses for cannabis, the United States of America as represented by the Department of Health and Human Services holds a patent (US Patent 6630507) titled "Cannabinoids as antioxidants and neuroprotectants" which claims among other things that "cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or 38
A Year in a Review, 2014
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The Rise of Legal Cannabis Continued...
in the treatment of neurodegenerative diseases, such as Alzheimer's disease, Parkinson's disease and HIV dementia." It is difficult to reconcile how a government can claim that a substance has no medical use while also holding a patent for medical uses of that same substance. The idea that there is a lack of accepted safety for use of marijuana is an even bigger stretch of the imagination. In response to a petition to reschedule marijuana, Francis Young, a DEA administrative law judge issued a finding of fact in 1988 which states "Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care." Despite these and other very rational arguments against marijuana's current placement, it continues to be classified as a Schedule I substance by the federal government. By contrast, both cocaine and methamphetamine are in the less restrictive Schedule II. Much of the advocacy work being done at the federal level aims to get the federal government to either reschedule marijuana so that it can be used medically or de-schedule it completely so that it can be regulated in a manner similar to alcohol.
on the courts as well as local jurisdictions. Since the passage of Proposition 215, many other states that have passed their own medical marijuana laws have looked to cities and counties around the state of California in order to identify best practices as well as regulatory failures. California Senate Bill 420 In 2003, Governor Gray Davis signed the aptly named California Senate Bill 420, which sought to clarify the scope and application of Proposition 215. SB 420 created an optional state-issued ID card designed to protect patients from unnecessary arrest. It also allowed the Attorney General to set limits on the amount of marijuana that patients and caregivers could cultivate and possess. Those limits were subsequently deemed "unconstitutionally amendatory" by the California Supreme Court in People v. Kelly. Perhaps most notably though, SB 420 allowed for patients and caregivers to associate collectively and cooperatively to cultivate medical marijuana. It was this provision that created the legal opportunity for dispensaries to exist and thus gave rise to the beginning of the modern legal cannabis industry.
California Proposition 215 In 1996 California voters passed Proposition 215 (also known as the Compassionate Use Act) which allowed patients and their primary caregivers to possess and cultivate marijuana for medical use. Proposition 215 made California the first state in the United States to allow for the use of medical marijuana. This created a conflict between state law, which now allows for the use of medical marijuana and federal law which continues to ban its use completely.
The failure of SB 420 to adequately anticipate the emergence of dispensaries and put in place regulations to govern them has allowed a patchwork of regulations to emerge at the local level across the state. Some jurisdictions like Oakland and Berkeley have created very effective regulations for dispensaries that are designed to ensure that all patients have adequate access to medical cannabis. Other jurisdictions like Los Angeles and San Diego continue to struggle to control an industry that expanded rapidly in the absence of an effective regulatory framework.
California's Compassionate Use Act, the first of its kind, was extremely vague. This has proved to be both a good and a bad thing. In the absence of statewide regulations concerning exactly how marijuana could be produced and distributed to patients, much of the regulatory burden has fallen
Where We're Going from Here With support for marijuana at an all-time high, it is almost a foregone conclusion that Californians will vote to approve an "Adult Use" ballot initiative in 2016 legalizing marijuana for any adult in the state. This will create many new opportunities for businesses in
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Âť California and the attorneys who advise them. In the meantime, California's legislature continues to struggle to enact legislation that would effectively regulate the production and sale of cannabis at the state level. Because of the legislature's continued failure to act, individual state agencies are starting to draft their own regulations to try to get a handle on the industry before adult use legalization creates another surge in the growth of the industry. The Board of Equalization, the State Water Resources Control Board and the Department of Forestry among others have already started moving forward with plans to regulate various aspects of the production and sale of cannabis. The prospect of legal industrial hemp production in the United States is also moving forward rapidly. At the moment hemp production is largely centered in China and Europe but several U.S. states have legalized the production of industrial hemp and more are sure to follow suit. Senate Minority Leader Mitch McConnell even inserted a hemp provision in a recent federal farm bill. As American farmers start growing hemp on a large scale, we'll see an increase in industrial applications including its use as a sustainable source of locally-sourced energy production. The Increasing Need for Legal Specialists Not long ago, the only "marijuana lawyers" were criminal defense attorneys. As more and more states allow for the legal sale of marijuana for medical and recreational use, new businesses are emerging at an accelerating rate in order to meet that demand. These days, companies in the cannabis industry whether directly involved in the cultivation and sale of cannabis or involved in providing ancillary services - need legal advice in a vast array of areas of practice. Some attorneys provide general legal services for cannabis businesses but for the first time in nearly a century, cannabis businesses are hiring attorneys specializing in intellectual property, tax law, land use and zoning, securities law, mergers and acquisitions, real estate law, agricultural law and pretty much
every other area of law that traditional businesses have needed for years. There is currently a growing opportunity for lawyers across many disciplines to capitalize on this rapidly growing market segment by taking the time to understand the unique - and not so unique - legal challenges that cannabis businesses face. Many lawyers and even entire firms spend most or all of their time working for clients in the cannabis industry. How to Find Clients in the Cannabis Industry The cannabis industry is growing at a breakneck pace and there are plenty of opportunities to get your foot in the door. One way is to form a relationship with attorneys, firms, and consultants already doing business with the cannabis industry. If you happen to specialize in a field that is in demand, you may end up getting more referrals than you can handle from other attorneys who either don't have time to take on additional clients or don't specialize in your field. Word still travels very quickly in the cannabis industry and if you do a good job for one or two clients, you're likely to get more work just by word-of-mouth. Just be careful not to leave a bad impression... those words travel fast too. Industry events and tradeshows are another good place to look if you're trying to get started with the cannabis industry. Investor events, tradeshows, fundraisers, and other cannabis related get-togethers are happening all the time. David Abernathy is a business management consultant who has spent the last five years working primarily in the cannabis industry. He has worked with some of the most prominent businesses in the industry on issues ranging from compliance and corporate structure to investment and development.
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ACBA Financials
Established in 1877, the Alameda County Bar Association (ACBA) is the second-oldest bar in the state of California. The ACBA has a membership of approximately 1,500 attorneys, judges, paralegals, law students, and other legal professionals, and administers numerous programs and activities to serve its diverse membership, as well as the community at large. Several changes had a financial impact on the ACBA in 2013, including: a new contract between the County of Alameda and the ACBA for the administration of the Court Appointed Attorneys Program (CAAP), which required that the ACBA pay CAAP attorneys’ fees directly, starting May 1, 2013, in addition to other programmatic changes; the decision to end the ACBA’s Fee Arbitration Program, which was started in 1979; long range strategic planning; and moving offices. In 2013, in an effort to rein in expenses, the Board decided to conduct an independent audit of the ACBA’s financial statements every other year (even years only). Following is the ACBA’s Statement of Activities for the year ended December 31, 2013 (unaudited) with comparative totals for the year ended December 31, 2012 (audited). For more information about the ACBA’s financial position, or to obtain a copy of the ACBA’s 2013 information return (Form 990), please contact Director of Administration and Finance Amanda Picetti at 510302-2207 or by email at amanda@acbanet.org.
Revenue Government Grants (Contributions) Dues Program income* Association sections income - net of expenses of $35,351 and $31,618 respectively Publication income Investment income Special Events - net of expenses of $14,020 and $19,456 respectively Other income Total revenue and support Expenses Program services* Management and general Total expenses Change in net assets before gain (loss) on investments Gain (loss) on investments Change in net assets Prior period adjustment Net assets, beginning of the year Net assets, end of year *Includes $3,706,667 in pass through CAAP attorneys’ fees.
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2013 (unaudited)
2012 (audited)
$534,100 $375,031 $3,886,028 $53,268
$501,922 $369,540 $222,710 $40,113
$8,150 $43,855 $5,320 $14,179 $4,919,931
$14,900 $54,812 $10,429 $20,614 $1,235,040
$4,693,302 $440,761 $5,134,063 $(214,132) $156,822 ($57,310) ($816) $2,022,148 $1,964,022
$1,054,264 $420,788 $1,475,052 $(240,012) $89,126 $(150,886) $ $2,173,034 $2,022,148
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BOS Ad A H I G H E R S TA N D A R D
BOSINVEST.COM 415.781.8535
San Francisco | Silicon Valley
Bingham Osborn & Scarborough, LLC was selected as the winner of the 2014 Best-in-Business IMPACT Award,™ part of Schwab’s IMPACT Awards® program, recognizing our excellence in business management among independent financial advisory firms. We strive to be the best.
Bingham Osborn & Scarborough, LLC and its employees are independent of and are not employees or agents of Charles Schwab & Co., Inc. (“Schwab”). Schwab does not prepare, verify or endorse information distributed by Bingham Osborn & Scarborough, LLC. The Best in Business IMPACT Award™, part of Schwab’s IMPACT Awards® program, is not an endorsement, testimonial endorsement, recommendation or referral to Bingham Osborn & Scarborough, LLC with respect to its investment advisory and other services.
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A Year in a Review, 2014
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Protecting Your Most Valuable Asset
Cindy Valdivia Mutual of Omaha Insurance Company
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Many individuals believe that one of their most valuable assets is their home or practice. While those certainly are valuable, for many of us our biggest asset is the ability to work and earn an income. Everyone who works for a living is familiar with what can happen if they lose their job. Yet the possibility of a serious disability is a risk few seem to consider. According to the Council for Disability Awareness, just over 1 in 4 of today’s 20-year-olds will become disabled before they retire1. The risk is real. The question is, “What to do about it?” Disability income insurance is designed to replace a portion of the income you lose if you are too sick or too injured to work. Typically that portion is roughly 66 percent of your yearly income. There are two main sources of disability insurance that attorneys can access while running their own practice or partnering with others. A word of note: many are not aware that programs offered through the government’s Social Security office do not cover partial disability, and they have a strict definition of what it means to be disabled. Skilled individuals frequently play a crucial role in the success of a business. This is particularly true of attorneys' offices in which one or two talented people possess highly specialized skills or knowledge that other employees do not have. Questions that arise are: How would the rent get paid? The lights stay on? Staff retain salaries? Replace the missing employee? Continue income into my household for expenses?
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BUSINESS OVERHEAD EXPENSE One strategy many business owners have found valuable is business overhead expense (BOE). This is a form of disability insurance specifically designed with the business owner’s needs in mind. BOE policies are designed to reimburse certain business expenses of the owner while he or she is totally disabled. Typically they are determined by the fixed expenses included in your taxes each year. This makes documentation easy and allows a business owner to make up lost funds due to tax write-offs and business expenses. The funds provided by the BOE policy help the business survive during the period of the owner’s absence due to disability. Some of the expenses that are typically covered by a BOE policy include rent, utilities, payments on debt, leased equipment, office supplies, salaries of nonowners, business taxes, workers’ compensation, etc. Plans can be designed to provide a significant portion of your regular monthly income (generally 66 percent) and benefits can be timed to begin according to need. THE FOUR FACTORS There are four main factors when companies are deciding if they will take on the risk of insuring any worker. Those are occupation, age, health, and income. There are lots of efficient ways to design a plan that is specific for your situation, and also many options to choose from. Make sure as you are looking into disability plans, you will want to find a company that rates the attorneys profession favorably. Each of the four factors may have a large impact on the premiums charged, but occupation class is one you can control during the process by knowing where a company rates attorneys. Other than paying monthly lump-sum benefits for a specific amount of time that you design, disability income policies also could continue to pay benefits during rehabilitation, job re-training and part-time employment. A survivor benefit would pay a lumpsum benefit to your beneficiary if you die during a period of disability. Optional features (riders) could be added to most disability income policies at extra cost. These include, but are not limited to, a cost-of-
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and Your Practice “How would the rent get paid? The lights stay on?” living adjustment to compensate for inflation, ownoccupation rider to specialize skilled job definitions, and future insurability options for attorneys who know business growth is on the horizon. Nobody wants to think about becoming disabled, but ignoring the risks could result in a catastrophe.
Can you afford to miss more than two months of work without having to borrow money? Social Security may help pay disability benefits, but it could be a lengthy waiting period. You can tap your savings, but that will exhaust most workers’ savings in about two months. Selling your assets is a last resort – but you may not get fair value for your assets and then you will have nothing. Social Security Administration, Fact Sheet February 7, 2013
1
ACBA Member Benefits When you join the Alameda County Bar Association, you will have the opportunity to: NETWORK with attorneys and judges at annual receptions and smaller section socials. KEEP CURRENT AND CONNECTED with our weekly blog, a biweekly e-newsletter, and other email blasts. STAY SHARP with quality MCLEs in a variety of practice areas, offered at a significant discount to our members. GAIN EXPERIENCE while serving the community by volunteering with the ACBA Volunteer Legal Services Corporation (VLSC). GROW YOUR PRACTICE through the Criminal Court Appointed Attorneys Program (CAAP) and the Lawyer Referral Service (LRS). ENJOY EXCLUSIVE DISCOUNTS on professional resources, including insurance, financial planning, and other services to help busy legal professionals succeed! The newest benefit offered to ACBA members comes from Mutual of Omaha. Mutual of Omaha Insurance Company and its affiliates offer a variety of insurance products to meet your individual needs. Your membership may qualify you for lower premiums and/or enhanced benefits, not offered to the general public, on insurance products including: • • • • •
Long-term Care Insurance; Disability Insurance; Critical Illness Insurance; Annuities; and Life Insurance
Find the full list of ACBA Member Benefits online at: www.acbanet.org/Membership%20Benefits/Benefits
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Trial Evidence Part VI: Exhibits
Tim H. Hallahan Attorney
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This article is the sixth in a multi-part series on trial evidence. Exhibits are crucial in most trials: they seem to have more inherent credibility than oral testimony, they go into the jury room or judge’s chambers when the verdict is being decided, most people learn and retain five times better from their eyes than ears, and exhibits enhance the general visual appeal and impact of your case. Accordingly, a good trial lawyer should know how to offer and object to exhibits as both an evidence technician and an advocate. PLANNING Select carefully which exhibits you will use and scrutinize them for extraneous information which might be otherwise inadmissible or detract from the essence of your case. Scrutinize your opponent’s proposed exhibits as well. Plan to weave the introduction of your exhibits into the context of the case so the jury will understand their importance. For example, have the witness describe how she got to the accident scene before the photo is introduced. Figure out ahead of time how you will display your exhibits to the jury so that everyone can see them. MECHANICAL STEPS The key to introducing exhibits is learning how to do it smoothly and quickly, thereby avoiding needless objections and impressing judge, jury, and opposing counsel with your competence. Hon. Ken Kawaichi calls your preliminary steps the Magic Triangle: show the proposed exhibit to your opponent, ask
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to have the exhibit marked “for identification,” ask to approach the witness, ask the witness to identify the item as you hand it to him, return to your table and lay the foundation. Check with your judge pretrial to see how s/he likes all of these steps done; some may be unnecessary, if, for example, s/he wants all exhibits pre-marked. THE FOUNDATION You don't have to memorize the foundation for every type of exhibit. Sources like California Evidentiary Foundations by Professor Edward Imwinkelried (Matthew Bender) or CEB’s Effective Introduction of Evidence in California will provide the script you need. Refer to one right before trial and practice with each exhibit. Bring the source to court as a backup. Crucial to laying a foundation for an exhibit, or objecting to it, is to understand why a foundation is necessary. If you understand the evidentiary issues, you can get out of trouble if you or a witness can’t mouth the exact words the judge is looking for. Use the tests of relevance, authenticity, hearsay, and best evidence to analyze each potential exhibit. • RELEVANCE: Is it probative of a material issue in the case or to the credibility of a witness? • AUTHENTICATION: What is it? How does the
• •
witness know what it is? Is it in the same relevant condition? If it isn’t the exact same thing, is it a true and accurate reflection of it? HEARSAY: If there are words on it, are those words offered for the truth of the matter they assert? If so, does an exception apply? BEST EVIDENCE: Is it being offered to prove the contents of a “writing” as defined by the code? If so, is it the “original” as defined? If not, does one of many exceptions arise? Best Evidence is rarely a trial issue, but when it is, it can be outcome-determinative.
The most important foundations to know well are for business and official records, refreshed and recorded recollection, and prior inconsistent statements. OFFERING AND SHOWING After you’ve laid the foundation, offer the exhibit. Then ask to show it. Make sure you’ve arranged for it to be seen by everyone by making individual copies, or a blowup, or by using an overhead projector or some sort of presentation software. If the judge
will not rule on admissibility until the end of your examination or case, ask that the jury be allowed to see it now while the exhibit makes most sense in the context of your examination. Also, make sure you offer it later and get your ruling. FINAL ARGUMENT Use your exhibits during final argument. They have loads of credibility, they provide visual impact, and they give you nice props. Tell the jurors to look at the exhibits during deliberation. And be sure, after all of your hard work, that they actually make it into the jury room. Prior articles in the Trial Evidence Skills series can be found on the ACBA Blog at http://acbanews.wordpress. com/.
Why take a risk in court when you can mediate your dispute and come to a reasonable resolution?
300 Lakeside Drive Suite 1000 Oakland, CA 94612 Phone: 510-763-5700 H. Tim Hoffman is known for his structured approach to complex sensitive and technical disputes, fast understanding of intricate issues and ability to bring closure to complicated disputes. 46
A Year in a Review, 2014
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VLSC Financials
The Alameda County Bar Association Volunteer Legal Services Corporation (VLSC) provides free direct assistance to Alameda County’s low-income population by mobilizing volunteer attorneys to provide pro bono service. A tax-exempt charitable corporation, VLSC is governed by an independent board of directors. In 2013, 467 VLSC volunteers provided more than 3,000 hours of pro bono legal services through pro per advice clinics and referrals—the equivalent of $901,434. More than 1,100 low-income people in Alameda County received legal assistance through VLSC last year. Every other year, VLSC is audited by an independent auditor, Harrington Group, Certified Public Accountants, LLP, to ensure transparency and compliance with proper accounting principles, with a review of the financial statements conducted in the alternate years. The complete 2013 review report, including the accompanying notes, is available by contacting Director of Administration and Finance Amanda Picetti at 510-302-2207 or amanda@acbanet.org. Unrestricted Temporarily Restricted
Permanently Restricted
2013 (Reviewed)
2012 (Audited)
Revenue and Support Contribution in-kind
$901,434
$
-
$
-
$858,461
$163,762
$85,556
Grants
$15,079
Contributions
$80,340
$80,340
$86,803
Special Events- net of expenses of $13,453 and $15,160 respectively
$48,950
$48,950
$47,138
Miscellaneous Income
$6,250
$6,250
$8,525
Interest and Dividends
$2,974
$4,293
$7,267
$8,083
$190,220
($190,220)
-
-
$1,245,247
($37,244)
$1,208,003
$1,094,566
$1,078,305
$1,078,305
$1,031,733
$147,419
$147,419
$172,640
$28,274
$28,274
$18,908
Net Assets Released from Program Restrictions Total Revenue and Support
$148,683
$901,434
-
Expenses Program Services General and Administrative Fundraising Total Expenses
$1,253,998
-
-
$1,253,998
$1,223,281
Change in Net Assets Before Gain (Loss) on Investments
($8,751)
($37,244)
-
($45,995)
($128,715)
Gain (Loss) on Investments
$19,662
$24,136
$43,798
$21,607
Change in Net Assets
$10,911
($13,108)
-
($2,197)
($107,108)
($20,250)
$84,784
$250,999
$315,533
$422,641
($9,339)
$71,676
$250,999
$313,336
$315,533
Net Assets, Beginning of Year Net Assets, End of Year A Year in a Review, 2014
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Pennies From Cy Pres Heaven » VLSC is the recent and appreciative recipient of a cy pres award in the Spencer Roberts, et al. v. Emery Bay North, LLC, et al. case, thanks to the generosity of Scott Brown and David Poore from the firm Brown | Poore LLP and Stuart Richter and Meegan Maczek of Katten Muchin Rosenman LLP. We are honored to receive this award, and will put it to good use supporting our clinic programs. Cy pres awards are the result of class action lawsuits in which some of the funds set aside for class members go unclaimed. Pursuant to the parties’ agreement (and/or judge’s order), the remaining funds are distributed to non-profits. The term “cy pres” comes from the Norman French phrase, “cy pres comme possible,” which means “as close as possible.” The idea is that, where the funds cannot be distributed to those (allegedly) injured by the conduct of the defendant, then the funds should go to a cause or organization as closely aligned as possible with the class members’ interests. So, for example, the settlement of a class action alleging a defect in the manufacture of automobiles might include a cy pres award to a consumer advocacy organization.
“Every dollar that comes to VLSC buys $5 in services.” In many cases, however, there is not an obvious organization that works on the concerns at issue in the case. In addition, frequently the defendant is unwilling to agree to a cy pres award to an advocacy organization highly likely to use those funds to turn around and sue that same defendant again. Sometimes defendants are also concerned that the designation of the cy pres recipient could be construed as an admission in the future. For these and other reasons, common law (and, in some places, statutory law) has recognized an alternative: cy pres awards should go to legal services organizations. The broader point of class
action cases, after all, is to offer access to justice to claimants who might not be well positioned to pursue it alone. Legal services organizations, that provide free legal assistance to low-income individuals and families, also make justice accessible to those who cannot otherwise truly gain entry. Cy pres will never be a reliable source of funding for nonprofits. It serves more as “pennies from heaven” – we never know when it will appear (and when it won’t). But it can make an incredible difference to an organization: allow the creation of a new project, pay for infrastructure long in need of attention, support programs that are unfunded. VLSC is a particularly great option for those crafting cy pres awards, for three reasons. 1. We provide critical services across the county, and across many subject matters. We offer 30 clinics per month in subjects ranging from bankruptcy to immigration. A cy pres gift makes a tremendous impact on the lives of the clients we serve. 2. As part of the ACBA, we are clearly “nonpartisan.” Plaintiff, defendant and judge are all able to see our value, and to do so without worrying about our affiliation or advocacy positions. 3. We are enormously efficient. Every dollar that comes to VLSC buys five dollars in services. If you handle class actions, or know someone who does, please give us a call. Let’s make those “pennies from heaven” a reality! If you are involved in class action matters, please consider including VLSC in your settlement or judgment. We are happy to talk with you about crafting an appropriate designation, and negotiating this issue with opposing counsel and the judge. 48
A Year in a Review, 2014
Alameda County Bar Association 1000 Broadway, Suite 480 Oakland, CA 94607
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Have you renewed your 2015 ACBA Membership? There are three easy ways to renew your membership for 2015: 1. Renew online at www.acbanet.org/Members/Renew/. Be sure to update your profile while you’re there. 2. Call (510) 302-2201 to renew your dues over the phone. 3. Mail the renewal invoice you received with payment for your membership dues to:
ACBA, Attn: Membership 1000 Broadway, Suite 480 Oakland, CA 94607 The Membership rates for 2015 are: Law Students and New Admittees (admitted to practice after December 1, 2013) Admitted to Practice within 1-5 years Admitted to Practice within 6-10 years Admitted to Practice within 11+ years Legal Services Attorneys, Non-Practicing Attorneys, and Judicial Members Affiliate Members (e.g. non-attorney accountants, paralegals, etc).)
$25 $155 $210 $230 $105 $155
Remember to renew your Section memberships! By joining any of our eleven practice area sections, members have access to discounted MCLE programs, receive invitations to social networking events, and get the opportunity to make their voices and opinions heard. Section membership is $35 per section, except for the Barristers Section, which is free for attorney members who have been practicing for 10 years or less. If you need assistance renewing your CAAP or LRS panel fees, please call (510) 302-2201. A Year in a Review, 2014
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