Contra Costa Lawyer - July 2021 The Access to Justice issue by CCCBA - Contra Costa Lawyer

Contra Costa

LAWYER VOLUME 34 NUMBER 4 | JULY 2021

Access to Justice

Top 3

Reasons

You Should Consider Joining the 2022 CCCBA Board of Directors

Support the Goals & Mission of the CCCBA

Support the Initiatives that Resonate with You

Build Connections and Expand Your Network

If you are an attorney member of the CCCBA in good standing and are interested in serving on the 2022 Board please submit your written nomination (including statement of interest, resume and 3-4 written references) to: Theresa Hurley (thurley@cccba.org), Executive Director, CCCBA, 2300 Clayton Rd., Ste. 520, Concord, CA 94520

The deadline for submitting nominations has been extended through July 30, 2021.

COMPASSIONATE. PERSONAL. DEDICATED.

• Will and Trust Litigation • Elder Abuse • Conservatorships & Guardianships • Fiduciary Representation • Probate & Trust Administration • Probate & Appeals • Real Estate • Estate Planning

• Joe Morrill, Founder • Jennifer McGuire, Partner • Jeff Coons, Attorney • Camille Milder, Attorney • Ritzi Lam, Attorney • Morgan Durham, Attorney • Rachel Rosenfeld, Of Counsel • Lara Heisler, Of Counsel • Vahishta Falahati, Of Counsel • Ruth Koller Burke, Of Counsel • Norman Lundberg, Of Counsel

• Nicole Morrill, Executive Director of Marketing and Human Resources • Jill Olivier, CFO • Patti Engle, Paralegal • Danielle Higuera, Paralegal

Walnut Creek: 2175 North California Blvd., Suite 424 • Walnut Creek, CA 94596 Martinez: 610 Court Street, Suite 204-206 • Martinez, CA 94553 Point Richmond: 1160 Brickyard Cove Road, Suite 103 • Richmond, CA 94801 P: 925-322-8615 • F: 925-357-3151 • Morrill.Law

MORRILL LAW Trust and Estate Litigation

Contra Costa 2021 BOARD OF DIRECTORS Dorian Peters President Ericka McKenna President-Elect David Erb Secretary David Pearson Treasurer Oliver Greenwood Past President Dean Christopherson Patanisha Davis Pierson Jonathan Lee Terry Leoni Cary McReynolds Craig Nevin

Michael Pierson David Ratner Sutter Selleck Marta Vanegas Andrew Verriere Qiana Washington

CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org CCCBA main office 925.686.6900 | www.cccba.org

Barbara Arsedo Carole Lucido

LRIS & Moderate Means Director Communications Director

Jennifer Comages Anne K. Wolf

Membership Director Education & Events Director

Emily Day

Systems and Operations Director

CONTRA COSTA LAWYER CO-EDITORS EDITORIAL BOARD Marcus Brown Alice Cheng 925.482.8950 925.233.6222

Ann Battin Matthew Cody

510.210.2755 916.718.8938

BOARD LIAISON Perry Novak Marta Vanegas 925.746.7278 925.937.5433 Andrew Verriere COURT LIAISON 925.317.9113 Kate Bieker Lorraine Walsh 925.957.5600 925.932.7014

DESIGN Christina Weed Carole Lucido 925.953.2920 925.370.2542 Rachel Margolis ADVERTISING Chapman Carole Lucido 925.837.0585 925.370.2542

PRINTING Modern Litho 800.456.5867

The Contra Costa Lawyer (ISSN 1063-4444) is published six times in 2021 by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA and additional mailing offices. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@cccba.org. The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

LAWYER Volume 34, Number 4 | July 2021

The official publication of the

FEATURES INSIDE: Access to Justice, by Mary Grace Guzmán, Guest Editor. . 5 Access to Justice in Family Law Amid a Pandemic, by Indy Colbath. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Trusting Trusts: Debunking Misconceptions and Recognizing Challenges to Trust Creations for People of Color, by Mika Domingo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Joint Representation: Keeping Both Clients Equally Informed, by Christina Weed. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Access to Justice in the Landlord Tenant Arena, by Andrew V. Gabriel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Mediation as a Means of Access to Justice, by Robert Jacobs. . . . . 20 The Access to Justice Gap Affects Everyone, by Theresa Hurley. . 24 Reflections on Pro Bono Work, by Justice James Marchiano, Ret. . 31

NEWS & UPDATES 2 �� Board Nominations 19 �� Bar Fund Benefit 26 �� The Justice James J. Marchiano Distinguished Service Award and Pro Bono Honor Roll 27 �� Sustaining Firms 28-30 �� Calendar 30 �� Advertiser Index 31 �� Classified Advertising

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

COVERAGE THAT PROMISES TO PROTECT. BUILT WITH YOU IN MIND. Becoming a member of Lawyers’ Mutual is more than choosing an insurance provider, it’s joining a community of your peers and receiving our promise to protect you. All of our innovative policies are designed in conjunction with underwriting, claims and insurance experts who hold over 100 years of experience in the legal malpractice industry.

Member Benefits

Continuing Legal Education

Cyber Coverage

Unique programs, specialty rates, credit card payments, instant financing and exclusive member benefits are all part of your Lawyers’ Mutual policy that has made us the premier provider for the past 43 years. Protect yourself. Protect your clients. Protect your future.

www.lawyersmutual.com Our strength is your insurance

JULY 2021

“

INSIDE

Access to Justice by Mary Grace Guzmán, Guest Editor

Often Access to Justice evokes discussions of how our legal community can better serve the legal needs of indigent individuals. Discussions of access often include statistics of how groups are underserved with some suggestions for improving access. The conversation often focuses on those who live at or below the poverty line and how to serve them. While access to justice is a significant issue for people struggling with poverty, this issue impacts middle-income earners too. The ability for a middle-income earner to fully fund their legal needs can be at the very least daunting, if not cost-prohibitive. When tasked with curating this edition of Contra Costa Lawyer Magazine, my goal was to shift the conversation of Access to Justice to consider the needs of middleincome earners and offer readers practical solutions to this problem. Along with focusing on middleincome earners, this edition emphasizes creative solutions to providing access to justice, including considerations of technology and our court system. The authors in this issue met the challenge of writing about access to justice and offered creative and,

sometimes, real-life experiences in expanding access to justice. While each of the authors expressed empathy for the issue of access to justice, they also expressed concerns that writing about access to justice for middle-income earners is a complex subject. Yet each author ran with the broad topic and wrote unique and informative articles on the subject. Indy Colbath interviewed Judge Danielle Douglas and Commissioner Christine Donovan, who discussed the challenges and positive impact of technology and Zoom hearings in family law court. Mika Domingo discusses cultural competency and serving people of color in estate planning. Christina Weed addresses the challenges of joint representation of married couples in business and tax controversies. Robert Jacobs explores lowcost alternative dispute resolution and mediation services within the greater bay area. Theresa Hurley provides an article on the CCCBA’s Lawyer Referral Service and how it meets middle-income earners’ needs. Finally, Andrew Gabriel discusses landlord-tenant issues that he has worked on as a member of the Lawyer Referral Service.

Finally, I would like to thank each of the authors for agreeing to write on a complicated subject and presenting creative solutions to a significant problem facing many middle-income earners. I also want to say a special thank you to Carole Lucido, who patiently worked with me, and the Contra Costa Lawyer Editorial Board for its assistance in helping me identify authors and a theme for this edition. Mary Grace Guzmán of Guzmán Legal Solutions advises lawyers, law firms, and law students on their professional responsibilities and risk management needs. She teaches legal ethics and professional responsibility at Thomas Jefferson School of Law. Ms. Guzmán regularly provides MCLE programs throughout California and has been a monthly blog contributor for the Continuing Education of the Bar (CEB), writing about legal ethics and risk management.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Access to Justice in Family Law Amidst a Pandemic:

What Worked, What Didn’t, and What May be Here to Stay by Indy Colbath

JULY 2021

The COVID-19 pandemic has shed light on institutions that were badly in need of modernization.

The necessity of social distancing to avoid community transmission forced many industries to quickly and efficiently adapt. In certain industries, namely the tech industry, we have already seen a reimagination of the workplace with remote work opportunities available to thousands of workers. But the legal system has always been somewhat behind the curve in keeping up with technology, even in the Bay Area, where the judicial branches ironically find themselves adjudicating the rights and obligations of these titans of innovation, while simultaneously requiring paper filings and in-person hearings. But in 2020, the judicial branch was forced to adapt. Governor Newsom’s state of emergency announcement on March 16, 2020 closed courthouses. Presiding judges in each county quickly adopted emergency rules, and swiftly implemented their own plans to ensure that the citizens were not denied their access to the judicial branch. In Contra Costa County, emergency rules1 were passed, including provisions that all family law short-cause matters, including requests for order (RFOs), status conferences, and settlement conferences would be held via Zoom As of the date of writing this article, Contra Costa judges continue to hear family law matters via Zoom, including long causes and trials, with the exception of long-cause domestic violence restraining order hearings. Virtual court presents difficulties, such as tenuous internet connections, user errors resulting in grotesque echo effects, court reporters struggling to hear what is being said over the background noise of kids and pets, or the

misuse of Zoom filters (“I am not a cat.”) The sometimes annoying, often hilarious mishaps of virtual court have certainly created some challenges, but have also created many unanticipated benefits for attorneys and litigants. Attorneys appearing in virtual hearings can do so between other tasks, and can also do billable work on other matters while they are waiting for their case to be called. Typical charges for a court appearance would not include the added cost of travel time, which in many instances (depending on the location of the attorney’s office) saves at least an hour of attorney time, leading to happier clients with lower bills. With over a year’s worth of data in hand, what, if any aspect of these changes should remain? What has worked, and what should we happily discard upon reaching that illustrious herd immunity? I interviewed two of Contra Costa’s family law bench officers, Judge Danielle Douglas, and Commissioner Christine Donovan. The judges recalled the impact of Zoom hearings and court closures. “We were provided with guidelines from the presiding judge, but each division was given a lot of latitude to come up with its own rules and procedures,” said Judge Douglas. “The family law division drafted its own emergency rules, which was a collaboration with the bench officers, the Family Law facilitators, the clerks, Family Court Services, and the local bar. Our approach to drafting the rules was to see what worked and what didn’t.” As a result, the emergency rules were regularly amended to accommodate changes in the pandemic. The operative emergency rules effective March 1, 2021 are the 6th iteration. “We got a lot of feedback from attorneys and litigants, everything from the difficulty of finding the correct Zoom link to the filing drop box being too small,” says Judge Douglas. When

questioned about how feedback was received from self-represented litigants who may not understand how to communicate their concerns through the correct channels, pro se litigants provided feedback through the facilitators or the clerks, and on occasion during the hearings – and our judges listened and adapted. Our current family law bench officers understand that access to justice is an ongoing concern in Contra Costa and the state of California. Pre-pandemic, Judge Douglas highlights the addition of the children’s waiting room at the family court, which helps many lower-income litigants. Once the pandemic hit, the court assessed how to serve the community and the resources it could offer to the public. Judge Douglas reports that initially, the principal concern about Zoom hearings was access to the necessary technology. “We considered setting up satellite ‘Zoom rooms’ where litigants could come to a facility and use court-provided devices to log onto their Zoom hearings, and could do so socially distanced.” But this concern was quickly curtailed, as it was soon evident that litigants largely owned the necessary devices to call into their hearings. “Most of the litigants have a device that enables them to do the video feature of Zoom, and if they don’t, they can still call into their hearing and appear without video.” An unexpected consequence of Zoom hearings was a dramatic increase in litigant’s “show up” rate in family court. Commissioner Donovan commented that calendar adjustments became necessary due to the amount of litigants who were consistently showing up to their hearings. “Before the pandemic, we would typically have 17 matters scheduled for the morning calendar, and on average 12-13 matters would have one or both parties present,

Continued on page 8

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Access to Justice in Family Law Continued from page 7

and could go forward,” says Commissioner Donovan. Since the implementation of Zoom hearings, her department can only support 12 matters per session, since “most of those matters will have parties present, with maybe one or two no-shows on average.” Similarly, Judge Douglas estimates that prepandemic, she typically had a 20-30 percent “no-show” rate. Now, she estimates that 95 percent of selfrepresented litigants appear at their hearings. Both judges reported that accessibility of Zoom decreased “no-shows” in court. “In DCSS cases in particular, there will be a lot of out-of-state litigants who could not appear in person to these hearings, but that hurdle has been removed

Elder Law is

with Zoom,” says Commissioner Donovan. Pre-pandemic, remote appearance required the utilization of third-party services, such as CourtCall, a service heavily utilized in the civil matters, but less so in family law. “The beauty of Zoom is that it’s free, and it’s user-friendly,” says Judge Douglas.

court is important, because it gives the litigants the opportunity to tell their side of the story and obtain orders that are right,” says Commissioner Donovan. “Zoom hearings are certainly not a panacea, but they provide an important tool in increasing participation in court proceedings.”

The practical limitations of coming to court are reduced by the implementation of Zoom hearings. “Litigants do not need to secure childcare, transportation, parking and a day off work in order to come to their hearing,” Commissioner Donovan says. “I have seen litigants lock themselves in their bathroom for their hearings as a practical way of ensuring their children are out of earshot, since the bathroom is where a parent can expect to have some privacy,” comments Donovan. Judge Douglas observes that litigants parked in their cars during hearings, which ensure outside noise does not disturb their hearing. “Coming to

The Contra Costa Family Law Facilitator provided instrumental assistance to self-represented litigants in preparing their paperwork and understanding the legal process. “The biggest hurdle for pro pers in family law is the technicalities required for someone to move their case forward,” comments Judge Douglas. The facilitator’s office has historically helped these individuals; they adapted to social distancing by offering virtual appointments, which led to a greater number of litigants receiving services. “The facilitators used to schedule 15-20 minute appointments, three days per week, and assist an average of 15-20 people in a day,” says Judge Douglas. “Now, the facilitators offer a live chat feature through the court website, and between January and April 2021, they have assisted over 3,000 litigants.”

The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall. Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, 10% of the population age 65 and older has Alzheimer’s disease. Of the 5.5 million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members. Protect your loved ones, home and independence, call elder law attorney

LAW OFFICES OF MICHAEL J. YOUNG, INC.,

Alzheimer’s Planning 8

JULY 2021

a Professional Law Corporation Estate Planning, Asset Protection, Medi-Cal, Long-term Care & VA Planning

925.256.0298 lawyoung1@gmail.com www.WalnutCreekElderLaw.com 1931 San Miguel Drive, Suite 220 Walnut Creek, California 94596

Judge Douglas recognizes challenges faced by court reporters having to create an accurate record during Zoom hearings, particularly due to jumbled audio. Commissioner Donovan reflects upon the difficulties for courtroom interpreters. “Zoom provides a way of doing simultaneous interpretation. When it works, it’s great, but it takes up valuable court time to set everything up and make sure it’s working.” There are also the challenges faced by the bench officers. The judges do not have the benefit of having their bailiffs on Zoom. “I am essentially my own bailiff,” comments Douglas. “If there is an unruly litigant, I have to remove them from the Zoom room, where I used to rely on a bailiff to do so.” Only recently did the department

clerks receive cameras for their computers, thus enabling them to take roll before the bench officer appears in court. There are also significant delays in Family Court Services appointments, due largely to FCS being short staffed. But Judge Douglas also notes that the significantly reduced no-show rate for FCS appointments has led to the backlog. “Pre-pandemic, we would get daily notifications from FCS of the available appointments due to no-shows. Now, it’s so much rarer for these openings,” says Douglas. Despite the challenges of remote hearings, some pandemic era accommodations may remain in place. “Short-cause hearings such as motions and status conferences may continue via Zoom,” Judge Douglas says, “Trials and long causes with witnesses will eventually be in person.” Zoom has launched a “government platform” with heightened security features, and the Judicial Council of California offered to help cover the cost for counties that choose to adopt it; Contra Costa Superior Court accepted this opportunity. Judge Douglas estimates a savings up to 60 percent from the court’s current technology expenditures. The judge referenced Senate Bill 241, which would amend Code of Civil Procedure §367.8, enabling witnesses to appear electronically by stipulation. “The pandemic has forced the judicial branch to play catch-up with technology,” she says.

attorneys to assist the court in moving swiftly by practicing remote hearings with clients. “Attorneys need to instruct their clients about how Zoom works. So many technical issues could be avoided if the attorney and client had done a practice run!” she observes. During the pandemic, many industries are assessing the necessity of in-person interactions. The judicial branch balanced its citizens’ rights to due process of law and adhering to emergency safety measures. As the prospect of “returning to normal” seems in reach, technology increased access to justice, notably in family law. Hopefully, these positive changes will remain in place, and the trend of embracing modernization will to advance our courts and access to justice.

1. Contra Costa County Emergency Local Rules, Family Law, 1-10, inclusive, passed April 6, 2020.

Indy Colbath is a solo practitioner whose family law firm is located in Walnut Creek. She currently serves on the board of the Barrister’s Section of the CCCBA and is a board member/ past-president and editor of the newsletter of the Eastern Alameda County Bar Association (EACBA). Ms. Colbath welcomes any further inquiries or comments, and can be reached via email at indy@colbathlaw.com.

The Judges Request Help from Attorneys

Bench officers believed attorneys could do more to serve our community and assist the court in providing access to justice. Commissioner Donovan “appreciates the tremendous amount of talent in our bar,” and asks more attorneys to consider offering “unbundled services,” such as limited scope appointments to assist litigants with lower means in need of an attorney for a single hearing. Judge Douglas implores CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Trusting Trusts:

Debunking Misconceptions and Recognizing Challenges to Trust Creations for People of Color By Mika Domingo There are many misconceptions about wills and trusts that prevent people, especially people of color, from seeking estate planning advice. Some people think trusts are only for the wealthy or for people with children. Others think trusts are cost-prohibitive. These misconceptions account for why many people of color fail to create trusts for asset distribution upon their passing. In this article, I’ll debunk these misconceptions and highlight additional barriers to creating trusts for people of color. I’ll also explore how lack of familiarity and trustworthiness account for why many people of color do not take advantage of our trust laws.

Debunking Misconceptions about Trusts

Trusts are a useful tool for all people with assets to protect.1 Trusts are not limited to the wealthy or people with many assets. In fact, a trust can be created for the distribution of a single asset, which is often the case with one’s home property. Trusts also manage the distribution 10

JULY 2021

of personal and/or financial assets, regardless of their economic worth. Trusts can be established to achieve a variety of goals. For example, trusts are often created to avoid the distribution of assets in probate court. Probate court is costly and delays the distribution of one’s assets. Similarly, trusts instruct to whom assets are distributed, rather than having assets automatically distributed to one’s heirs, per the laws of intestacy. Trusts also work to minimize estate taxes upon the trustor’s death, thereby making sure beneficiaries receive as much of your money as possible.

Moreover, the legal fees associated with trust creation are often much less than the expense of probate court. As an estate planner, I provide free consultations. I explain the benefits and values of estate planning and how important it is for overall future planning.

Cultural Barriers to Trust Creation for People of Color

In the United States, far too many immigrants and people of color die without a trust.2

Trusts are not limited to people with children. While a majority of trusts disburse assets to children or other family members, a great number of trusts instruct assets be distributed to charitable organizations.

Trusts can be traced back to 13th century England, when the Magna Carta was created, and is rooted in common law. Only one-third of the world’s population live in common law jurisdictions or in countries where common law is mixed with civil law.3

Trusts should not be cost-prohibitive to create. While complex estates tend to be more time consuming, and thus increase the legal fees, the majority of trusts are straightforward and do not break the bank.

In the United States, the majority of immigrants come from countries that do not practice Common Law.4 The graph below shows the

country of origin for immigrants in the San Francisco Area.5 Hong Kong, of which 6 percent of San Francisco immigrants come from, is the only country that has a system based on English Common Law.

Country of Origin for Immigrants in the San Francisco Area Mexico 24%

China 44%

6% Hong Kong 2% Yemen or Macau 2% Vietnam 5% Guatemala 2% Honduras 4% El Salvador 1% Nicaragua 4% Eritrea 1% Brazil <1% each Caribbean, Colombia, Costa Rica, Indonesia, Morocco, Peru, Senegal, Sierra Leone

Thus, the benefits of trusts are not commonly known by first generation immigrants who have not previously dealt with similar estate planning issues in their home country. This unfamiliarity prevents immigrants from setting up their own estate plan for their children. Similarly, children learn from their parents about financial and health related matters. Immigrant parents, unfamiliar with estate planning themselves, fail to pass on to their children the value— both financial and otherwise—of creating a trust. For example, there is no probate law in Japan. As such, Japanese immigrants may not know about setting up a trust to avoid probate in the U.S. Similarly, Japanese immigrants may not pass along to their children information concerning the benefits of trust creation over probate. Education and outreach to immigrant communities about estate planning and trust law would benefit all communities of color and better preserve assets for their heirs.

The Importance of Trustworthiness

The relationship between an attorney and client requires a high level of trustworthiness before engagement. The information disclosed is of high confidence and clients often seek legal advice when they are most vulnerable. Clients are most comfortable entering into this relationship if they feel connected on some level to the attorney. Thus, many people of color are hesitant to engage in a legal relationship with an attorney that shares little to no cultural or linguistic similarities with them.6 As an attorney, people seek me out not just for my knowledge, experience and personalized service, but also for additional value I bring to the relationship as a woman of color. One client, a Filipino woman, shared that she felt immediately at ease with me because we communicated in Tagalog, her native language. She also felt I could relate and understand her better than other attorneys due to my gender, heritage and language skills. Another factor that contributes to a lack of trustworthiness is the racial injustice prevalent throughout our criminal justice system. This racial injustice often permeates to the civil justice system as well. As such, it is not surprising that many people of color are hesitant to seek legal services to create trusts. Education, outreach and having an attorney that shares some common background, whether it’s gender, cultural, linguistic, or experiential is critical to better assist people of color with estate planning services and asset protection for their heirs. Lacey Kessler, Survey: Half of America Sees Estate Planning As Tool of the Ultra Rich, https://www.thewealthadvisor.com/article/

survey-half-america-sees-estate-planning-toolultra-rich (last visited May 12, 2021). Earl G. Graves, Sr., Lack of Estate Planning Puts Black Wealth At Risk, November 2015, https://www.blackenterprise.com/lack-of-estateplanning-puts-black-wealth-at-risk/ (last visited May 12, 2021).

These populations include the people of Antigua and Barbuda, Australia, Bahamas, Bangladesh, Barbados, Belize, Botswana, Burma, Cameroon, Canada (both the federal system and all its provinces except Quebec), Cyprus, Dominica, Fiji, Ghana, Grenada, Guyana, Hong Kong, India, Ireland, Israel, Jamaica, Kenya, Liberia, Malaysia, Malta, Marshall Islands, Micronesia, Namibia, Nauru, New Zealand, Nigeria, Pakistan, Palau, Papua New Guinea, Philippines, Sierra Leone, Singapore, South Africa, Sri Lanka, Trinidad and Tobago, the United Kingdom (including its overseas territories such as Gibraltar), the United States (both the federal system and 49 of its 50 states), and Zimbabwe.

https://www.cia.gov/the-world-factbook/field/ legal-system/

The San Francisco Integration Project. The San Francisco Immigrant Integration Project: Findings from Community-Based Research Conducted by the San Francisco Immigrant Legal & Education Network (SFILEN) San Francisco Immigrant Legal & Education Network (SFILEN) 2014, https://repository.usfca.edu/cgi/viewcontent. cgi?article=1007&context=mccarthy_fac (last visited May 12, 2021).

See Tsedale M. Melaku, Why Women and People of Color In Law Still Hear “You Don’t Look Like a Lawyer,” https://hbr.org/2019/08/why-womenand-people-of-color-in-law-still-hear-youdont-look-like-a-lawyer (last visited May 12, 2021).

Mika Domingo, Founder of M.S. Domingo Law Group, P.C. represents clients throughout California in Estate Planning, Probate and Trust Administration and Litigation. She is passionate about driving change within the legal community, having served on the State Bar of California’s Committee of Bar Examiners, as past president of CCCBA Women’s Section, director for Women Lawyers of Alameda County, director for CCCBA, past chair of the CCCBA DEI Committee, and currently serves as president dlect and co-chair of the Judicial Evaluations Committee for California Women Lawyers. She teaches Trusts and Estates at San Francisco Law School and is host of her very own podcast, “Stories of Ikigai.”

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

JULY 2021

Joint Representation:

Keeping both clients equally informed By Christina Weed The Rules of Professional Conduct outline in detail an attorney’s duties in the context of lawyer-client relationship1. Lawyers are generally aware of their duties of loyalty, care, competence, etc., as well as what to do in cases of potential or actual conflict. Potential conflicts can arise very often in cases of representing two spouses, multiple business partners, etc.2 When representing married persons with their estate plan, or with their joint and several tax liabilities, potential conflicts should be addressed and explained, and of course adequate consents requested. However, what I often encounter if a tax matter comes to me at a time past the initiation of their case, I am often concerned to find that one of the spouses is often in the dark about what is transpiring in their case, and many times the spouse who is kept in the dark is the female in a marital relationship. When it comes to tax liabilities, the more dominant spouse often wants to handle matters for the purported reason that they do not want to put additional stress on their partner.

When it comes to matters of litigation, I often find that one spouse wants to be the one to handle things for similar reasons. While it might be tempting to primarily deal with one spouse, probably the one who seems to have more information, is this the right method of representing both clients? When it comes to estate planning, are both partners/spouses equally informed of what their documents indicate? Are both spouses adequately represented in the options presented to them and how their assets are depicted? In the context of estate planning, I find this usually is the case. However, when matters become litigious, or more adversarial in the case of tax controversy, I find that this is not always how the matter is handled. I have had cases where a female spouse was represented by an attorney in Tax Court in conjunction with her spouse but not adequately kept in the loop. In one particular case, my client had moved to

Continued on page 14

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Joint Representation Continued from page 13

another state and was not receiving the pleadings that were filed in Tax Court that her attorney received. An adverse decision was obtained in Tax Court without her knowledge, so she was not able to appeal, or even appear. Later on, this affected her ability to obtain innocent spouse relief, since the matter had already been decided in Tax Court. The problem with dealing with only one spouse primarily is very clear in this case. In some cases, a joint tax liability may not be fair to both spouses. Perhaps, one spouse has a separate business and has exclusive access to the financial information of the business and fails to file and/or timely pay taxes. The non-business-owner spouse has joint and several liability

JULY 2021

for jointly filed returns; however, in the event the spouses were to divorce, would the non-businessowner spouse possibly have a claim for innocent spouse relief? Is this ever discussed with the client who may have a valid claim for innocent spouse relief? As an attorney, I understand the appeal of speaking primarily with the spouse/partner who understands our legal and financial vernacular better, but this is not the standard to which we are held accountable. It is our job to make sure we are explaining things to both of our clients so that they understand and can make good choices in connection with both of their legal interests3. When I have represented two clients with respect to a joint tax matter in the past, I often ask the partners/ spouses if it would make sense for the non-business-owner spouse

to request innocent spouse relief, while the business-owner spouse pursues other ways to resolve their tax liability. Although this may seem like it is adverse to the partner/spouse not requesting innocent spouse relief, is it really if this is the course of action both spouses want to take? The IRS of course is less than thrilled when we take this approach, but I have had this handled favorably for both spouses/ partners in Tax Court in the past, and one spouse was ultimately granted relief. Of course, at a point there becomes an actual conflict, because of divorce for example, I must withdraw from representing both spouses/partners, and this is disclosed to both partners at the beginning of representation as well. In addition, even if one spouse wants to be the one to primarily communicate with me, I advise both clients at

the beginning that I intend to copy both of them on all email communications. If this is not agreeable to both partners/spouses, it may be a signal that there is already an actual conflict. I have seen this happen often in business litigation and other litigation as well. I know this comes up for my business partner in divorce many times where one spouse has been kept in the dark about finances throughout the entire marriage. While this would not be a case in which my business partner represents both sides, it demonstrates how incredibly common it is for one spouse to be kept in the dark throughout a marriage and not understand what is truly at stake when there is litigation, or even divorce or dissolution down the line.

As I referenced above, while not always, the majority of the cases I have where this potential conflict is at issue, it is the female partner who is often kept in the dark. While this is not an access to justice issue in the conventional sense perhaps, it is very concerning that half of the population is often overlooked, or perhaps not adequately involved in their case, when it comes to their legal matters. As a woman and business owner, this is very disheartening to me. While perhaps not intentional, it happens far too often. I hope that more lawyers become aware of this and find ways to make sure they keep this in mind for all of their joint clients.

1. California Rules of Professional Conduct http://www.calbar.ca.gov/Attorneys/ConductDiscipline/Rules/Rules-of-Professional-Conduct/ Current-Rules 2. California rules of Professional Conduct Rule 1.7 http://www.calbar.ca.gov/Portals/0/ documents/rules/Rule_1.7-Exec_SummaryRedline.pdf 3. California Rules of Professional Conduct Rule 1.4 Communication with Clients http://www. calbar.ca.gov/Portals/0/documents/rules/ Rule_1.4-Exec_Summary-Redline.pdf

Christina Weed, JD, LLM (Taxation) is a Partner at Mendes Weed, LLP in Walnut Creek and a Co-Founder of Weed Law, PC. mwlawca.com; weedlawpc.com; (925) 390-3222. California Certified Specialist in Taxation Law.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

POWERING Trust Payment IOLTA Deposit Amount

$ 1,500.00 Reference

NEW CASE Card Number

**** **** **** 4242

PAYMENTS FOR THE

LEGAL INDUSTRY

The easiest way to accept credit, debit, and eCheck payments The ability to accept payments online has become vital for all firms. When you need to get it right, trust LawPay's proven solution. As the industry standard in legal payments, LawPay is the only payment solution vetted and approved by all 50 state bar associations, 60+ local and specialty bars, the ABA, and the ALA. Developed specifically for the legal industry to ensure trust account compliance and deliver the most secure, PCI-compliant technology, LawPay is proud to be the preferred, long-term payment partner for more than 50,000 law firms.

ACCEPT MORE PAYMENTS WITH LAWPAY

866-500-2832 | lawpay.com/cccba

ACCESS TO JUSTICE

LandlordTenant Arena by Andrew V. Gabriel

The American dream goes hand in hand with the idea of real property ownership1. Once an individual is able to own property, they have achieved the goal that generations of families have strived to reach. Many resort to renting out their property either to afford the very property they own or to act as an investment with a reasonable rate of return. From there, the landlord-tenant relationship is born. As a member of the CCCBA’s Lawyer Referral & Information Service, I experience first hand that many landlords and tenants in the Bay Area are not aware of the rights and obligations being a landlord or tenant entails. I am not talking about the large, multinational corporation that owns several hundred units who have access to their in-house counsel on speed dial. Rather, more likely, it is the family that purchased a new home and is renting out their first home that has no clue of what is involved in being a landlord. Or the individual that has taken a massive leap into real estate and purchased their first multi-unit building. Where do those landlords turn when they have a problem tenant? And what about tenants? While there are many non-profit organizations in the Bay Area that assist tenants, many non-profits have strict contingencies on their grant funding that limit how much an individual or family can make to receive assistance. With rents as high as they are in the Bay Area, one may simply not be able to afford both rent and to qualify for legal assistance from nonprofits. Where do those tenants turn to when they have issues with their landlords? All of these questions present issues with access to justice, especially in the arena of unlawful detainers. Unlawful detainers are the expedited proceeding which makes it so that landlords can evict without burdening themselves with the cost and time associated with a full civil lawsuit. While the Judicial Council2 has taken steps to try and make the process as user-friendly as possible, there are simply more questions than answers in filling out the available forms. Throw in a global health pandemic, laws that vary county by county and city by city, and a landlord or tenant finds themselves in a minefield of information, and any mis-step results in delays or disaster. As an attorney practicing landlord-tenant law, the comment I receive most from new clients, whether landlord or tenant is,

Continued on page 18 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Landlord-Tenant

Continued from page 17 “I could not find an attorney to help me with my case.” As attorneys, we are not only advocates for our clients, but we also run or contribute to a private business. Unlawful detainer actions use laws that are ever changing, expeditious in nature, and in the end, result in not a lot of billable time. In comparison, other Civil lawsuits typically result in several months, if not years, of litigation and hundreds of billable hours. Therefore, as a business model, landlord-tenant law does not appear to be the most immediately profitable. But, if an attorney makes the initial investment, takes the time to learn the state and local laws, and works carefully to navigate the landlord-tenant intricacies, they can help a large volume of individuals resolve their issues in a very short time span. And, now those people have a ‘go to’ attorney for their other business issues: contracts, investments and the like. In one recent case, a pro-per plaintiff was attempting to evict my client, the tenant. The tenant, who was also pro-per at the time, held a phone consultation on a Thursday afternoon. The tenant then retained my services that following Saturday. I appeared at a pre-trial settlement conference on Monday, in which the plaintiff landlord did not attend. On Tuesday, moments before trial began, my client and I did an oral

Motion for Judgement on the pleadings, based solely on the landlord’s defective notice to vacate in violation of the COVID-19 Tenant Protection Act.3 The court then granted the motion. This case truly captured the multiple problems with access to justice in the landlord-tenant practice. The pro-per landlord simply did not know what the laws were and how to comply. Unlawful detainer rules are very strict because of their expedited nature and getting it wrong is fatal to the case. This landlord served their notice in January of 2020, right before the pandemic. Their case was finally heard in February of 2021. More than a year of time had elapsed and losses in income accrued. Tenant, on the other hand, was able to seek the assistance of counsel and fight their case. For landlords, access to justice is critical in the early stages, at the notice level, before a lawsuit is even filed. The crux of any unlawful detainer lawsuit is the notice. This is even more critical during COVID-19 and in localities with rent ordinances. Failure to comply with notice requirements can not only be fatal for the lawsuit, but also subjects landlords to liability to the tenant. Tenants have the luxury (albeit stressful) of defending against a lawsuit. Often times, cases come to me when a default judgement has occurred, and the sheriff is only a

Candice E. Stoddard Personal Injury Real Estate Litigation Trust and Estate Disputes Mediation

Law Offices of Candice E. Stoddard 1350 Treat Blvd., Suite 420 Walnut Creek, CA 94597

JULY 2021

925.942.5100 • fax 925.933.3801 cstoddard@stoddardlaw.com Practicing law in the East Bay for over 30 years

week away from performing the lockout. All the while, the tenant has been incapacitated or away due to a family death. Is it possible to provide access to justice for both landlords and tenants? Access to justice is frequently pictured as a tenant issue4 but what can the landlord renting their family home do when their tenant is destroying their home? For many individuals on either side of the situation, the CCCBA’s Lawyer Referral & Information Service (or another referral source) acts as a lifeline. For a low fee, individuals will be able to speak with an attorney knowledgeable with the landlord-tenant landscape to at least understand their rights and responsibilities. Andrew V. Gabriel is a solo practitioner at the Law Office of Andrew Vento Gabriel assisting clients with employment and real estate/real property matters. Born and raised in the San Francisco Bay Area, he represents both landlords and tenants in order to have a complete understanding of the legal field as it pertains to tenants’ rights. Andrew represents clients in several cities and counties with and without rent/eviction controls including Contra Costa, Alameda, Solano, and San Francisco. In response to COVID-19’s impact on the rental market, Andrew continues to advise landlords and tenants of their rights and responsibilities. 1. https://magazine.realtor/dailynews/2019/03/06/survey-homeownership-stillhallmark-of-american-dream 2. Judicial Council has created a number of forms specific to Unlawful Detainers: https://www. courts.ca.gov/1290.htm?rdeLocaleAttr=en 3. California Code of Civil Procedure §§ 1179.01-1179.07

The Bar Fund

Benefit 2021 Thursday, September 2, 2021 Virtual Event on Zoom 5:30 pm - 6:30 pm

Also presented at

The Bar Fund Benefit

The Justice James J. Marchiano DISTINGUISHED SERVICE AWARD The inaugural award will be presented to a CCCBA member who volunteers his or her time to improve the circumstances of others or changes lives for the better in our community. CCCBA

Pro Bono Honor Roll more info at https://www.cccba.org/ give-back/ pro-bono-recognition/

Tickets: https://cccocasa.org/menus/ 2021-cccba-bar-fund-benefit.html

Funds raised at the Bar Fund Benefit will go to support CASA’s programs

For 40 years CASA has provided highly trained volunteers to be the “voice for the child” in foster care dependency hearings. As a result, 100% of youth with a CASA volunteer graduate from high school or earn a GED, although only 70% of foster youth overall in Contra Costa County do. CASA also provides therapy to foster youth who are not eligible for MediCal-funded mental health services. Realizing that 70% of youth in the juvenile justice system have had contact with the child welfare system, CASA is starting a program to provide our services to these youth to help them comply with probation requirements and to ensure they complete their education. With your help we can support our youth in becoming successful young adults.

We are Most Grateful to our Sponsors: PLATINUM CCCBA’s Estate Planning & Probate Section Hartog, Baer & Hand APC GOLD

SILVER

Acuna Regli Brothers Smith Casper Meadows Schwartz & Cook Ferber Law Littler Mendelson

Bramson, Plutzik, Mahler & Birkhaeuser Brown, Gee & Wenger LLP Flicker, Kerin, Kruger & Bissada LLP JAMS McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP Miller Starr Regalia Morrill Law Mullin Law Firm Robert Half Legal

CCCBA’s Silver Section Sponsors ADR Section Litigation Section Women’s Section Other Section Sponsors Appellate Criminal Elder Law Employment Family Law Juvenile Solo/Small Firm

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Mediation

As a Means of Access to Justice By Robert Jacobs I keep a famous cartoon on my desk from The New Yorker magazine. It shows a client sitting across a desk from his lawyer. The lawyer has been reviewing a set of documents and the client looks surprised when the lawyer says “You have a pretty good case, Mr. Pitkin. How much justice can you afford?” Let’s face it: legal services are a resource just like anything else. If a client is prepared to pay enough money they can retain the brightest legal talent around. But what about those clients who can’t afford to pay thousands of dollars for a lawyer to champion their cause or defend them against a spurious claim?

JULY 2021

The easy answer is to say that attorneys should provide more pro bono services. There’s a place for that but it’s unlikely the supply of pro bono services will ever catch up to the legal needs of indigent clients. Attorneys are service providers. When consumers can’t afford to pay for their services, are attorneys any different than doctors? Or dentists? Or car mechanics? Few auto mechanics offer to fix cars for underserved populations who can’t afford their services. But we view doctors and lawyers differently. We are professionals. Doctors have a unique, regulated access to highlyskilled care that can make the difference between life and death. Lawyers have the skills and training that can

make the difference between financial ruin and success. But lawyers have to be careful. Legal publishers aren’t knocking on our doors to discount their charges because we are doing pro bono work. Our landlords don’t care whether or not we collect for our services. PG&E won’t cut us any slack on our utility bills; our insurers won’t discount our premiums and our staff probably won’t take a pay cut just because we are doing pro bono work. A philosophical discussion about the propriety, need or obligation of attorneys to provide pro bono services is outside the scope of this article, but the following point is self-evident: Legal services are a resource just like everything else.

We may somehow feel differently about legal services because they involve significant issues of fairness, right and wrong or inalienable rights. But in the final analysis legal services are still exactly that: services. Litigators have a perfect knowledge of the cost, expense and emotional turmoil involved in litigation. In every lawsuit someone is going to win, someone is going to lose, in some cases everyone is going to lose and ultimately someone will pay the price of all that litigation. Notwithstanding all this, an underserved person who is unable to afford legal representation may quickly find themself outgunned, outmaneuvered and outflanked in any legal dispute where a well-heeled opponent hires a capable, experienced lawyer. Indigent clients can selfrepresent, but it’s not a fair fight. Experienced counsel often have a field day in lawsuits where an unsophisticated, indigent client is selfrepresented. Recognizing the need for access to justice for all persons (including those who cannot afford to pay for legal services) several non-profit, volunteer ADR (Alternative Dispute Resolution) programs have emerged in the San Francisco Bay Area (and other areas of the country) over the past several decades. See sidebar on low-cost legal resources. There can be a perception that the mediation services offered by these organizations may be sub-par or inferior because these organizations do not charge (or charge very little) for their services. Such a perception is inaccurate. In addition to providing mediation services, these non-profit groups focus on providing the public with training in mediation and in conflict resolution; several of them provide 40-hour mediator training programs. The Peninsula Conflict Resolution

Center trains incarcerated persons in communications skills. In addition to providing people with enhanced skills for resolving their own conflicts, these outfits provide parties with trained mediators in connection with more difficult disputes. Many highly trained mediators periodically participate in these programs on a pro bono basis for the purpose of “giving back” or “paying it forward.” Experience levels between mediators can vary, but this is also true with privatelyhired mediators. A key benefit of private mediation over commu-

nity mediation is that parties have quick and full access to mediator schedules; parties also have a high degree of control over mediator selection. However, nobody should think that just because they participate in a community-based mediation through one of these services they will be unable to work with a skilled, trained mediator.5 What about litigated cases? Indigent or underserved populations may find themselves unable to bear

Continued on page 22

Low-Cost Legal Resources Contra Costa County is served by the Congress of Neutrals, which offers mediation services in small claims, civil harassment and unlawful detainer actions at no charge to the parties. The Congress of Neutrals is also available to conduct private mediations and other alternative dispute resolution services in cases involving homeowner associations, landlord-tenant disputes, competing businesses, neighborhood, elder and family disputes. Their fees are negotiable and services are often available at community rates. Since 2010 the Congress of Neutrals has worked in conjunction with the Contra Costa County law libraries in recruiting attorneys to provide guidance to self-represented litigants.1 Similar to the Congress of Neutrals, SEEDS (Services that Encourage Effective Dialogue and Solutions) operates in Alameda County to “increase the capacity of individuals, groups, and organizations to build healthy relationships and to restore relationships in the face of conflict.” SEEDS does this through mediation, facilitation, training, and coaching.2 Community Boards in San Francisco offers community mediation at an initial fee of $45-$100 per case. Mediation itself is provided at no charge; nobody is turned away due to an inability to pay. This non-profit organization provides parties with a mediator who can help in resolving many of the kinds of disputes that consumers are typically involved in such as:3 -Harassment -Landlord & tenant disputes -Pet problems -Roommate disagreements -Parking issues -Family and domestic conflicts -Fences -Neighbor issues -Property repairs -Communication breakdowns -Tree and vegetation care -Noise disturbance Peninsula Conflict Resolution Center (“PCRC”) provides (among other things) conflict resolution training and mediation of conflicts in the greater peninsula community at no charge.4

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Mediation as a Means to Access to Justice Continued from page 21

the significant attorneys fees which may be required in civil cases. Contingency arrangements can address this problem in some cases. But many cases may not be suitable for a contingency fee arrangement (such as in defending an indigent person who is being sued or in bringing a case where there may be no prospective economic recovery such as one seeking a restraining order or a child custody dispute). In these kinds of civil cases indigent persons can quickly find themselves severely disadvantaged in comparison with their more financially able opponents. Legal scholars and commentators have considered the prospect of using mediation as a point of access to justice for those who might not be equipped to access justice through traditional methods (i.e. through litigation). On the surface it seems like mediation would be an ideal means for indigent persons to access justice. But there are problems with that approach. Some litigation matters look to the future (such as a quiet title action, where litigation is necessary to get clear title to real property). Some look both forwards and backwards (such as a restraining order that relies on past actions to provide future stability or protection or an award of damages based on a past tort as a means of funding future medical treatment). But most kinds of cases involving damage claims are highly focused on the past. In these cases someone was wronged, injured or damaged. In trying to be made whole, a plaintiff needs to bring the defendant to the bargaining table. In most situations the defendant “wins” as long as the plaintiff does nothing. In these situations a defendant may be highly incentivized to resist or rebuff early settlement or media22

JULY 2021

tion attempts, because if the plaintiff lacks the emotional or financial strength to withstand the rigors of litigation then if the plaintiff does nothing, things will never change and the defendant will “win” by never having to fully deal with the plaintiff’s claims or losses. Ron Kelly is an established legal trainer, mediator and arbitrator who is based in the Bay Area. Several years ago I attended one of his seminars that was geared towards effective marketing of mediation services. During the seminar Ron talked about his efforts to build his mediation practice following the Oakland Hills fire. In the aftermath of the Oakland Hills fire many homeowners found they were underinsured and that they had potentially high dollar claims for their losses due to the fire. Ron knew that parties could save a great deal of money in attorneys fees by mediating early. Ron decided the best way to market his practice was to “get the word out” to people who might have a lot of high dollar litigation claims - but who might also want to save tens or hundreds of thousands of dollars in legal bills. Ron actually took out advertising spots on bus benches in the areas where the Oakland Hills fire had burned down lots of homes. He got his bench ads up and running and then waited for his phone to start ringing. It never happened. Almost nobody called. This greatly puzzled Ron, and he just couldn’t understand why nobody wanted to save the time and expense of hiring counsel and litigating their claims when they could just move straight to settlement discussions. Only after many years of mediating cases did Ron learn the truth: Parties often don’t have any interest in mediating until there’s no other option, or until they’ve felt the financial sting of mounting attorneys fees during litigation. Ron found out that oftentimes parties have to “go

through the process” before they are ready to mediate; this process often involves a substantial expenditure of time and money in seeking justice through the court system until these parties get to the point where a compromised settlement through mediation looks like a better alternative than continuing with traditional litigation. It was an unexpected lesson. From a purely rational point of view, so long as a case can be adequately worked up without formal discovery, everybody should mediate first and then litigate if the case can’t be settled. However, Ron learned the reverse is true: many, many cases are litigated for a period of time before both sides are ready to mediate. The application of this principle to indigent persons is clear. Without the “softening up” effect of litigation, some cases might not ever be ready for mediation. This isn’t true in every case; some lawyers and clients are ready and willing to mediate before the first shot ever gets fired across the bow. But other clients and counsel just won’t be ready to mediate until a certain amount of litigation has occurred. One scholarly law review article has closely examined the benefits to indigent clients of both mandatory and voluntary mediation.6 But this law review article is mostly concerned with identifying and describing the problems, challenges and shortfalls connected with mediating with indigent persons in a litigation context. It really doesn’t offer many answers as to how mediation could potentially serve as an additional access point for indigent litigants. Instead, it concludes that “parties who are represented by attorneys are much more likely to achieve better results than selfrepresented parties.” (See page 8). No surprise there. This observation matches what most litigators would undoubtedly conclude on their own but it does nothing to advance

access to justice by indigent persons through mediation. If anything, it highlights the stark reality that in most cases indigent persons just aren’t going to fare as well as their represented opponents in litigated matters.7 What’s the take-away? Fortunately most legal claims by (and against) indigent persons will occur in the kinds of legal matters that are served by community mediation. Ideally most indigent persons won’t be involved in high-dollar claims where their entire financial future is at stake – or if they are involved in such litigation then hopefully a contingency fee arrangement may serve to provide them with experienced counsel. Unfortunately for such persons, unless they can secure pro bono counsel, most indigent persons involved in any kind

of significant civil litigation will, to a large extent, be left to fend for themselves in the same manner they are left to fend for themselves with most other kinds of resource allocations practiced by the societies and communities where such indigent persons live. Where circumstances suggest that early mediation may be appropriate, then with any luck such indigent persons and their more affluent opponents will all benefit from the significant cost savings that can be realized through effective early mediation. 1. http://www.congressofneutrals.com/about-us/. 2. https://www.seedscrc.org/about-us. 3. http://www.congressofneutrals.com/about-us/.

4. https://www.pcrcweb.org/who-we-are. 5. https://www.mediate.com/articles/cohed2.cfm 6. https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1031&context=flro 7. Mediate.com: https://www.mediate.com/ articles/McDonaldR3.cfm

After litigating cases for over 30 years Robert Jacobs now mediates challenging real estate, business, construction, personal injury and probate & trust cases. Since 2018 Mr. Jacobs has been one of two update authors for the CEB treatise Real Property Remedies and Damages; he is also a contributing author to CEB Practitioner. He holds an AV designation with Martindale Hubbell and is a designated Superlawyer. In 2021 he accepted an invitation to teach part time at the University of California Hastings College of the Law.

The Lawyer Referral & Information Service Can Help Build Your Practice

If you’ve been looking for proven ways to grow your practice, Join the LRIS now! Clients are searching online for CCCBA LRISmember attorneys 24 hours a day. Contact us now for cases in all practice areas, and especially if: • You Specialize in Tenant Rights or Juvenile Dependency • You Speak Fluent Spanish (Cases in all specialties available) • You Will Accept Moderate Means Clients

Learn More! Contact Barbara Arsedo, CCCBA LRIS Director at barsedo@cccba.org or visit www.cccba.org/lawyer-referral-service/

(925) 370-2544

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

The Access to Justice Gap

Affects Everyone By Theresa Hurley

When many people hear the phrase ‘access to justice’ they often envision legal services for the low-income. In Contra Costa County, thoughts of nonprofits such as Bay Area Legal Aid, the Family Justice Center and Contra Costa Senior Legal Services may come to mind. And while the services that these and many other legal aid organizations provide are vitally important for the people who qualify for those services, there is another, even larger group of people who do not have adequate access to justice, those in the middle class or with ‘moderate means’. Many of these people own their homes and/or have a middle-class income and therefore do not qualify for assistance from many legal service organizations and other community nonprofits. Yet they are not able to afford the legal assistance they require, even seemingly very basic legal services. Dealing with legal issues is just as important and critical to their lives as it is for low-income folks. In 2019, the State Bar of California conducted a survey where thousands of Californians of all income levels were surveyed about their civil legal needs. The resulting California Justice Gap Survey1, found that 55 percent of Californians experienced at least one civil legal issue

JULY 2021

in their household over the past year and 13 percent experienced six or more. There are two different types of justice gaps – one is a knowledge gap, where people of all income levels do not even understand that their problem has a legal remedy. The other is a service gap where consumers cannot afford the cost of the legal assistance they require. The survey found that this service gap persists even with those whose incomes are 601 percent above the federal poverty line (income of $154,501 and over) where 78 percent of people in that category received no or inadequate legal help. As there is no right to counsel in civil cases like there is for criminal matters, many people of all income levels are left to handle important legal issues without assistance or even basic legal information. In cases involving divorce or child custody, housing and employment (all legal areas severely impacted by Covid restrictions) most litigants have to handle their legal issue on their own. According to the California Justice Gap Survey, as many as 90 percent of those facing eviction do not have legal assistance and in 70 percent of family law cases one or both parties are unrepresented.2 We all know how expensive it is to live in the Bay Area and this cost leaves even middle-income families struggling to pay their bills, much less save for retirement and college. According to census data, the median household income in Contra Costa in 2019 was $99,716 which works out to $48 per hour,

pretax. Given the 2019 average attorney charges of $323 per hour , it would take over seven hours of work to pay for one hour of legal services. The median gross rent in Contra Costa County in 2019 was $1,819, which is the same as approximately 5.5 hours of legal services at that same rate. The choice between paying for less than 6 hours of legal services or paying a month of rent is usually not a choice. This shows just how out of reach attorneys are for most people in Contra Costa. Someone who was lucky enough to have bought a house in the Bay Area 20+ years ago, is likely to be house rich and cash poor. One example is a recent case that a legal services organization recently assisted with. An older person was dealing with a slip and fall defense case that was not covered by their homeowner’s insurance. They had equity in their home but very low savings and monthly income and

could not afford to pay an attorney. Protecting the house was vital not only for them but also for the adult disabled child who lived in the house with them. It is only because of the legal nonprofit stepping in and helping with this case, with pro bono assistance from a large insurance company’s in-house counsel, that the family was able to successfully defend themselves. This is just one example of the tens of thousands of people who need legal assistance and can’t afford it. Using this method to close the justice gap would require hundreds more legal aid organizations employing thousands of legal aid attorneys who can leverage tens of thousands more private attorneys to take on pro bono work. That seems to be an impossible task. There are other ways that those with a modest income may be able to access legal assistance. Legal incubators provide support and educa-

tion to new attorneys (or those transitioning to a new practice area) as they build their practices and in return, they can help clients at a much-reduced fee. The courts provide assistance through various programs such as small claims advisors and family law facilitators, as well as through attorney volunteer efforts like as the Double Pro Per calendar, one of many ways that CCCBA Family Law section members give back to the community and support the court. CCCBA’s Moderate Means program was established to provide clients who cannot afford to pay full attorney fees a referral to an attorney who has agreed to take on certain cases on a reduced fee basis. The original Moderate Means program had two levels of income for qualification, with Level 1 being the lowest income and Level 2 for those

Continued on page 26

This is what excites me about real estate, as one of the few Realtors® that is also a Certified Stager, I love to help with the transformation of a property from "For Sale to SOLD". This is done through my years of expertise and assistance in the preparation, staging and marketing. The early steps are the most critical and involve tremendous Team effort and collaboration. Many hours are spent strategizing, designing and highlighting the perfect look and feel for the property. I enjoy working with my extremely talented Painters, Contractors and Staging Teams. My goal is to make this process seamless and stress free for our Sellers and most importantly to SELL for the HIGHEST PRICE!

2020 BAY AREA HOME SALES Market Share by Broker | By Dollar Volume MLS Sales

COMPASS 21.4%

RE/MAX COLDWELL BANKER KW 9.1% SOTHEBY'S SERENO

INTERO 6%

VANGUARD REDFIN 2%

BH&G CORCORAN BERKSHIRE 1%

SIDE GRUBB RED OAK C21 J.ROCKCLIFF DELEON

UNDER 1%

The Next Generation of Luxury Realtors! www.minchenteam.com •

CalBRE#01367542 • 415-619-1728 • sell@minchenteam.com

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

The Access to Justice Gap Affects Everyone Continued from page 25

on what is considered “moderate” income. “Moderate” yearly income at Level 2 can range from $20,544 for a one-person household up to $60,000 for a five-person household. A family of four would not qualify for the program if their gross yearly income exceeded $52,500 (just over $25/hour). Using the average attorney hourly rate of $323, it would take someone making “too much” to qualify for the Moderate Means program almost 13 hours to earn enough (pre-tax) to pay for one hour of attorney fees. Finding enough attorneys willing to take on moderate means cases has

been an increasingly difficult challenge exacerbated by the effects of Covid. The need is great, and the supply is few so even the applicants that qualify for the Moderate Means program are not able to be helped. In fact, recently we had to put a hold on the Moderate Means program because of a lack of available attorneys to take cases.

1. http://www.calbar.ca.gov/Access-to-Justice/ Initiatives/California-Justice-Gap-Study 2. https://www.census.gov/quickfacts/ contracostacountycalifornia 3. https://www.clio.com/resources/legaltrends/2019-report/read-online/” https://www. clio.com/resources/legal-trends/2019-report/ read-online/ 4. http://www.calbar.ca.gov/Access-to-Justice/ Initiatives/California-Justice-Gap-Study

The LRIS committee is in the process of revising the Moderate Means program to make it easier to administer, and we hope, more beneficial to attorneys who agree to take on Moderate Means cases.

Theresa Hurley, CAE is Executive Director of the CCCBA.

Access to justice isn’t an issue that affects the poor, it affects all of us.

The Justice James J. Marchiano DISTINGUISHED SERVICE AWARD Nominations are open through July 19 for the inaugural Justice James J. Marchiano Distinguished Service Award. This award will go to a CCCBA member who volunteers his or her time, either in a legal or nonlegal capacity, to improve the circumstances of others and changes lives for the better in our community. To be considered for the award, a member can selfnominate or be nominated by someone else. Applications for the award are available at www.cccba.org/ give-back/pro-bono-recognition Deadline: Please send the completed award application to Anne K. Wolf at awolf@cccba.org no later than July 19, 2021 at 5:00 pm.

PRO BONO HONOR ROLL

If you are one of the many CCCBA members who help out in their communities in a legal or nonlegal capacity, we hope you will enter the CCCBA Pro Bono Honor Roll. Any CCCBA member who has volunteered 50 or more hours over the period September 1, 2020 – August 31, 2021 is eligible for the Pro Bono Honor Roll. Download our Excel form to track your hours and send to Jennifer Comages at jcomages@cccba.org by August 15, 2021. For further details visit www.cccba.org/give-back/pro-bono-recognition/

Recipients of the inaugural Justice James J. Marchiano Distinguished Service Award and the 2021 Pro Bono Honor Roll will be honored at the Bar Fund Benefit on September 2, 2021. 26

JULY 2021

gratefully acknowledges its

2021 SUSTAINING LAW FIRMS Firms with 30+ attorneys: Miller Starr Regalia

Firms with 20-29 attorneys: Bowles & Verna, LLP Littler Mendelson PC McNamara, Ney, Beatty, Slattery, Borges & Ambacher LLP

Firms with 11-19 attorneys:

Brothers Smith LLP Brown, Gee & Wenger, LLP Clapp Moroney Vucinich Beeman Scheley Doyle Quane Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci Greenan, Peffer, Sallander & Lally, LLP Hartog Baer & Hand APC Kilpatrick Townsend & Stockton Whiting, Fallon, Ross & Abel LLP

Firms with 5-10 attorneys: Acuna Regli

Barr & Young Attorneys

Casper, Meadows, Schwartz & Cook Craddick, Candland & Conti

Edrington, Schirmer & Murphy Ferber Law APC

Galloway, Lucchese, Everson & Picchi

Gillin, Jacobson, Ellis, Larsen & Lucey Livingston Law Firm, P.C.

What Is a Sustaining Law Firm? Sustaining Law Firms of the Contra Costa County Bar Association have a minimum of five Contra Costa-based attorneys and maintain current CCCBA membership for all attorneys practicing under the same firm name in the local office. There is no fee to become a sustaining firm. These firms receive additional administrative support services and are recognized in the following ways: • On the CCCBA website at www.cccba.org/ sustaining-law-firms/ • In Contra Costa Lawyer magazine (in print and online) • Displays at the CCCBA office and at all CCCBA-sponsored events For more information, contact Jennifer Comages, CCCBA Membership Director at (925) 370-2543 or jcomages@cccba.org.

Morrill Law

Seto Wood Schweickert, LLP

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

CALENDAR UPCOMING EVENTS | OVERVIEW July 20 | CCCBA Post Pandemic Nutrition Reboot more details on page 29

July 27 | Women’s

Section

ApPEERing Productive more details on page 29

July 28 |

CCCBA Education Committee

CCCBA Attorneys Behaving Series

#3 Identifying and Managing Disruptive Counsel and Clients more details on page 29

July 29 | Diversity, Equity & Inclusion Committee Disability Rights - Personality Lingo more details on page 29

July 30 | CCCBA CCCBA Can Grow Your Income and Your Network

August 17 | CCCBA The A, B, C’s and D of Turning 65 more details on page 30

August 26 | CCCBA Education Committee CCCBA Attorneys Working Series

#3 Cellphone Forensics: Applications in Discovery and Investigations more details on page 30

September 2 | CCCBA Bar Fund Benefit

in Support of CASA of Contra Costa County more details on page 30 and back cover

September 14 | Elder Law Section

Protecting Elders’ Wishes in End-of-Life/ Hospice Circumstances more details on page 30

more details on page 29

August 10 | Women’s Section Women’s Section Social Hour more details on page 29

The Contra Costa County Bar Association certifies that the MCLE activities listed on pages 29-30 have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.

Interested in some additional exposure for you, your firm or your company?

Consider sponsoring an event or MCLE program. For more information, please contact Anne K. Wolf at awolf@cccba.org.

JULY 2021

CCCBA Education | Committee

July 20 | CCCBA

July 27 | Women’s Section

July 28

Member Information Program –

ApPEERing Productive

Attorneys Behaving Series –

Pandemic Reboot: How to Get Back to Healthier Habits Speaker: Angela Stanford Since the pandemic started, our lives and our lifestyles have significantly changed. Staying at home has led a majority of us to a more sedentary lifestyle, poor eating habits, less exercise, etc. This program will help you get back to healthier habits, shrink that tire around the waist, clear your brain fog, reduce stress and lift your mood! Time: Noon – 1:15 pm, Zoom Meeting Cost: Free for CCCBA members | $20 non members Register: Online at www.cccba.org/attorney-events

July 29 |

Diversity, Equity & Inclusion Committee

Disability Rights PERSONALITY LINGO–

Learning Your Strengths and Differences Helps You Understand and Work with Others Speaker: Michael Viola How are your communication skills? Do you want to know more about yourself and be inclusive in your speech, especially when speaking with people who have different values, abilities and life experiences than you? Journey with us as we explore Personality Lingo, a model for understanding ourselves and others. Time: Noon – 1:30 pm, Zoom Meeting MCLE: 1.5 hours Elimination of Bias credit Cost: Free for all Register: Online at www.cccba.org/attorney/calendar

Speaker: Sarah Tetlow – Firm Focus This month’s topic will be: Stop Over Committing Yourself! Make Room for What Matters. This unique workshop encourages peer collaboration on challenges and successes that lawyers and busy professionals experience in their careers. Bi-monthly conversations will dive deeper into various components of the busy professionals’ life, including: sleep, work/life balance, email management, project management, self-care, family responsibilities, work challenges and successes, and personal and professional goals.  Time: 1:00 pm - 2:00 pm, Zoom Meeting Cost: Free for CCCBA members | $10 non members

#3 Identifying & Managing Disruptive Counsel and Clients Speakers: Hon. Paul Beeman, Ret. | Bette Epstein | Audrey Gee | Mark LeHocky Sponsored by: ADR Services, Inc. Disputes are stressful, anxiety-tinged events for counsel and their clients alike. The speakers will focus on identifying examples of problematic behavior impacting advocates and their clients and advise how to anticipate, diffuse and manage bad behavior by counsel and clients. Time: Noon - 1:35 pm, Webinar MCLE: 0.5 hour General and 1 hour Competence Issues credit

Cost: Free for members of the Law Student Section | $20 CCCBA members | $35 non members

July 30 |CCCBA

August 10 |

CCCBA Can Grow Your Income & Network – Let Us Show You How

Women’s Section Social Hour

We look forward to continuing the tradition of socializing and networking together with our members.

Attend this informative program and learn how your involvement with the CCCBA can boost your income and connections.

Cost: Free for all

Join us to hear from members who have increased their income and connections through participation in the Lawyer Referral & Information Service (LRIS), the CCCBA Professional Referral Organization (PRO), Pro Bono programs and writing for the Contra Costa Lawyer magazine. You can reap similar benefits!

Women’s Section

Come join us for a Virtual Social Hour.

Time: 4:30 pm - 6:00 pm, Zoom Meeting Sign Up: Online at www.cccba.org/attorney-events

Time: Noon - 1:30 pm, Zoom Meeting Cost: Free for all Sign Up: Online at www.cccba.org/attorney-events

For more information on these events: Unless noted otherwise, please contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

August 17 | CCCBA

August 26 | CCCBA

September 2 | CCCBA

Member Information Program –

Attorneys Working Series

Bar Fund Benefit

The A, B, C’s and D of Turning 65 Speaker: Laurna Bulahan - Insurance Coordinator, Colleen Callahan Insurance Services This presentation addresses the alphabet soup of turning 65 and planning the transition to Medicare. The key points will cover Medicare Part A and B, eligibility for a Medicare supplement, types of supplements, prescription drug plans, timelines, openenrollment and tips related to transitioning. There will be case studies showing options for remaining on a company-provided insurance plan or moving to Medicare. Time: Noon - 1:15 pm, Zoom Meeting

#3 Cellphone Forensics: Applications in Discovery and Investigations Speaker: Brian Chase, Director of Digital Forensics – ArcherHall Cellphones represent one of the fastestchanging areas of legal practice. Mobile device evidence is more important than ever, thanks to the rapid evolution of the technology and the way this evidence is treated by the courts. Touching on important recent cases, this presentation provides up-to-date guidance on the application of cellphone forensics in litigation, investigations, and other legal matters.

Cost: Free for CCCBA members | $20 non members

Time: Noon - 1:15 pm, Webinar

Cost: Free for members of the Barristers and Law Student sections | $15 CCCBA members | $30 non members

Advertiser Index ADR Services . . . . . . . . . . . . . . . . . . . 15 Barr & Young Attorneys. . . . . . . . . . . 14 The Bray Law Firm. . . . . . . . . . . . . . . . 9 Judicate West . . . . . . . . . . . . . . . . . . . 13 Lawyers Mutual. . . . . . . . . . . . . . . . . . . 5 LawPay. . . . . . . . . . . . . . . . . . . . . . . . 17 Minchen Team. . . . . . . . . . . . . . . . . . . 25 Morrill Law Firm. . . . . . . . . . . . . . . . . . 2 Candice Stoddard. . . . . . . . . . . . . . . . 19 The Law Offices of Michael J. Young Inc . . . . . . . . . . . . . . . 8

MCLE: 1 hour General credit

JULY 2021

For the past 32 years, CCCBA’s BAR FUND has been proudly raising awareness of the need for pro bono legal services and assistance for low income members of our community. Each year, CCCBA members come together to learn about and support a worthy group. We will introduce the Hon. James J. Marchiano Distinguished Service Award and announce the newest members the Pro Bono Honor Roll at the Bar Fund Benefit. Time: 5:30 pm - 6:30 pm, Zoom Meeting Cost: $40 per person Sign up: Online at www.cccba.org/attorney-events Sponsorship opportunities are available now! See page 19 for more.

September 14

Elder Law | Section

Elder Law Discussion Forum

Protecting Elders’ Wishes in End-of-Life/Hospice Circumstances Speaker: Konstantine Demiris Please join the Elder Law Section board members as they present on topics of interest and of their expertise and invite questions and discussion from the attendees. The later part of the hour everyone will be invited to engage with each other positing questions, raising timely legal issues, offering practice tips, etc. Time: Noon - 1:15 pm, Zoom Meeting MCLE: 0.5 hour General credit Cost: Free for members of the Elder Law and Estate Planning & Probate Sections | $10 CCCBA members | $35 non members

In Support of CASA, Court Appointed Special Advocates for Children of Contra Costa County

For more information on these events: Unless noted otherwise, please contact Anne K. Wolf at (925) 370-2540 or awolf@cccba.org Register at: www.cccba.org/attorney-events

CLASSIFIEDS PROBATE PARALEGAL TO ATTORNEYS Joanne C. McCarthy, 3000F Danville Blvd., #257, Alamo, CA 94507 Call (925) 689-9244.

Reflections on Pro Bono Work by Justice James Marchiano (ret.)

WALNUT CREEK, FOR ATTORNEYS ONLY

“It’s satisfying.” “It’s rewarding.” “It’s fulfilling.” These are some of the reactions from lawyers who set aside a portion of their work for pro bono activities.

2 OFFICE SPACES AVAILABLE

Electricians, plumbers, realtors and other professionals are licensed by the State of California, each with their own state license number. When lawyers sign pleadings, they append their State Bar license number. But what distinguishes a lawyer’s number and work from other professions is the inherent quest for public good, by representing clients to secure the rule of law, to right wrongdoing, to harmonize competing interests, ultimately to advance a public good while earning a living.

Beautiful offices w/ 11 solos. Networking. Single story building remodeled for lawyers. Built in’s, fireplace, molding, kit., conf rm, windows that open, etc. Very congenial. Rent varies. Paul 925/938-8990/pbelaw@ pacbell.net Where: 3445 Golden Gate Way, Lafayette Law firm since 1955. 1) Single Office Space Details: Creekside setting with ample free parking, excellent law library, easy access to intercity jogging trail. Rent is $1,000/month. 2) Retired Senior Partner Office Space Details: Large finished, wood panel office with private full bath and separate room for secretary or assistant. $1,850/month. Interested? Call Stan Pedder at (925) 283-6816.

Advertising Opportunities in Contra Costa Lawyer Magazine Reach over 1,500 attorneys, judges, legal and other professionals when you advertise in the September issue of Contra Costa Lawyer magazine. Print and digital advertising and sponsorship opportunities are available now. Contact Carole Lucido, Communications Director at clucido@cccba.org or (925) 370-2542 for the 2021 Advertising Kit or find it online.

The privilege of holding a license to practice law confers immense power, but brings with it a corresponding responsibility to use that power to serve the public good. The ultimate service is pro bono publico work, offering free legal services to those in need. Bar associations strongly encourage lawyers to render pro bono services as part of the core of being a lawyer. California Business and Professions code section 6068 (h.) imposes a duty “never to reject… the cause of the defenseless or the oppressed.” In other words, lawyers should aspire to make justice equally available to all. Rendering pro bono work can take on many iterations. Some lawyers free of charge advise nonprofit organizations about their legal questions. Lawyers in the Library offers free advice to indigent renters about landlord-tenant problems and more. To recognize and encourage pro bono work in the legal community, on September 2, 2021 at the Bar Fund Benefit celebration, the CCCBA will award its inaugural Justice James J. Marchiano Distinguished Service Award to a CCCBA member lawyer whose pro bono contributions helped to change lives for the better. Also at this event, the CCCBA will announce the names of the recipients of the CCCBA Pro Bono Honor Roll for 2021. These members contributed at least 50 hours in the past year to worthy organizations and causes. There is still time to add your name to the Pro Bono Honor Roll. Visit cccba.org and search for pro bono recognition. The deadline for the 2021 Pro Bono Honor Roll is August 15, 2021. Join us at the Bar Fund Benefit on September 2, to celebrate those who give back to our community. Justice James Marchiano (Ret.) was a trial lawyer until appointed to the Superior Court of Contra Costa County in 1988, where he served for ten years, primarily as a civil and criminal trial judge. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

Save the Date

2021 MCLE

spectacular

online

with

Update! Uplevel! Uplift! Update Your Knowledge Uplevel Your Skill Uplift One Another

9 am - 1 pm

November 17, 18 & 19

Three Half-Days Full of Fabulous MCLE Presentations Featuring

Dean Erwin Chemerinsky,

Jesse H. Choper Distinguished Professor of Law, Berkeley Law Other keynotes to be announced

Additional Speakers and Programs to be Announced. Watch for more!

Contra Costa Lawyer - July 2021 The Access to Justice issue

Articles inside

Reflections on Pro Bono Work

The Access to Justice Gap Affects Everyone

Access to Justice in the Landlord Tenant Arena

The Justice James J . Marchiano Distinguished Service Award and Pro Bono Honor Roll

Trusting Trusts:

Mediation as a Means of Access to Justice

Access to Justice in Family Law Amid a Pandemic, by Indy Colbath

Joint Representation: Keeping Both Clients Equally Informed

INSIDE: Access to Justice, by Mary Grace Guzmán, Guest Editor