THE MARIN LAWYER An Official Publication of the Marin County Bar Association
THE MARIN LAWYER March 2022 Supervising Editor Robert Rosborough Editor Kristine Cirby Guest Editors Chelsea Heaney, J. Timothy Nardell Creative Director Kiersten Ross 2022 Officers President Robert S. Rosborough President Elect Ahtossa P. Fullerton Secretary Kristine Fowler Cirby Treasurer Scott Buell Past President J. Timothy Nardell 5 Year Past President Wanden P. Treanor Board of Directors 2022 Directors Emily M. Charley R. Christopher Locke Ann W. Munene Karthik S. Raju 2023 Directors Chelsea E. Heaney Valerie G. Kushel Thomas M. McCallister Thomas (Tom) M. McInerney Mary M. Sackett 2024 Directors Neusha N. Ghaedi Jeffrey G. Knowles Mary A. Stearns Alexander S. Vahdat David L. Winnett Executive Director Mee Mee Wong Communications Kiersten Ross
Membership & Events Administrator Denise Belli The Marin Lawyer is published by The Marin County Bar Association 101 Lucas Valley Road, Suite 326 San Rafael, CA 94903 415-499-1314 info@marinbar.org www.MarinBar.org © 2022 All Rights Reserved.
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CONTENTS 4 | Editor’s Introduction: From the Case of a Career to Closing a Practice KRISTINE CIRBY 7 | President’s Message: WAR ROBERT ROSBOROUGH 10 | In Memoriam: Richard H. Breiner GARY T. RAGGHIANTI 13 | The Cases of My Career LARRY STRICK 15 | Meet the 2021-22 MCBA Legal Scholars MCBA 17 | Four Lots for the Price of One! – New Housing Laws and Their Impact on Marin RILEY HURD and ASHLING MCANANEY 20 | Top Nine Legal Podcasts You Are Not Listening To, But Should KRISTINE CIRBY 23 | Brockbank Political Report: Elections are Back! A Look at the June Races GREG BROCKBANK 28 | Nonprofit Profile: Humane Prison Project: Training Prisoners in Compassionate End-of-Life Care ROBERT ROSBOROUGH 31 | Webinar Recap: The Great Resignation—Is It An Opportunity? CHELSEA HEANEY 38 | Upcoming Events 40 | New Members
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PRESIDENT’S MESSAGE EDITOR’S INTRODUCTION From the Case of a Career to Closing a Practice KRISTINE CIRBY
This issue of the Marin Lawyer is the first in a very long time where our MCBA President Robert Rosborough has not been editor-inchief (although he gave me tremendous help!) Being editor of this quarterly news requires a lot of work—more than I initially thought! I admire him even more after trying to fill his rather large shoes for one issue. Rather than pick a theme this time, we decided to seek variety. We asked Larry Strick to write an article about Cases of My Career in which he discusses some of the cases that have a left a bigger impact on his career. We hope to have a similar article from other attorneys in future issues. I found it touching that his big cases were about the people and not the court details. Riley Hurd and Ashling McAnaney coauthored a great article that illuminates landuse regulation as California attempts to create a more streamlined development process. They clearly explain the details in Four Lots for the Price of One! – New Housing Laws and Their Impact on Marin. If you missed the January membership meeting where Wanden Treanor and Jim Cunningham explained how to close, sell, or buy a law practice, you missed a great session. Luckily, MCBA Board member Chelsea Heaney wrote a great recap of the presenta-
tion, The Great Resignation—Is It an Opportunity? With election season fast approaching, we once again have Greg Brockbank’s musings in his political column. A Look at the June 6th Election Races in Marin and Beyond lets us know who is in and who is out of our local and statewide races. He also opines on the November Congressional elections. Consider this a friendly reminder to vote! I have compiled a list of Top Nine Legal Podcasts You Are Not Listening To, But Should (plus a couple of bonus podcasts). Before I began researching this article, my podcast experience was quite limited. I have listened to a few episodes of the podcasts listed and
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find them interesting and educational. I think
you will too. One podcast I did not include was an Alameda County lawyer’s podcast focusing on local legal happenings (“Love thy Lawyer”). Perhaps a member of MCBA will consider starting a Marin County-focused legal podcast? I have been to San Quentin State Prison to chaperone local boys in the SQUIRES program, in which the inmates talked about a fellow inmate who had recently committed suicide and the impact it had on their mental health. Robert Rosborough wrote a very touching article on the nonprofit Humane Prison Hospice Project, which trains inmates to provide hospice care. The work they do is especially poignant given the aging population of our prisons.
I hope to see you at tonight's in-person gala, the MCBA Installation Reception at the new Jonas Center at the College of Marin’s Indian Valley Campus. Come have a great time with the Marin bench and bar and congratulate MCBA’s new officers and directors!
View this article at Marinbar.org Kristine Fowler Cirby has dedicated the past 30 years to advocating for clients in family law with the last 22 years exclusively in Marin County. She currently serves as Secretary on the Board of Directors for Marin County Bar Association and is currently President of the Board of Trustees for the Marin County Law Library. EMAIL | WEBSITE
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PRESIDENT’S MESSAGE MESSAGE PRESIDENT’S WAR ROBERT ROSBOROUGH
In Memoriam, July 19, 1914 We aged a hundred years and this descended In just one hour, as at a stroke. The summer had been brief and now was ended; The body of the ploughed plains lay in smoke. The hushed road burst in colors then, a soaring Lament rose, ringing silver like a bell. And so I covered up my face, imploring God to destroy me before battle fell. And from my memory the shadows vanished Of songs and passions—burdens I'd not need. The Almighty bade it be—with all else banished— A book of portents terrible to read. Anna Akhmatova (Translated by Stephen Edgar)
Akhmatova’s poem seems particularly apt to how so many people feel about the world
termed an invasion, where a well-established central government breaches the territorial
right now. In an instant, the world shifts in a way that an era ends and a grim new one
integrity of another country with the intent to change the government or even to acquire
takes its place, where “the body of the
territory (and I am well aware that the U.S. is
ploughed plains lay in smoke.” While the
on this short list of invaders).
United States had been diligently telegraphing Russia’s military buildup along the
Adjusting to such a new state of affairs is not
Ukrainian borders for months, it still seemed unthinkable that Russia would actually invade. For all of the fighting that has gone on in the world in the last few decades, I can think of only a few conflicts that could be
easy. Especially when, even in highlyvaccinated Marin, we have still not fully adjusted to an only slightly less sudden invasion—that of a virus two years ago, one that changed our world profoundly and unpredictably. Wealth and science have enabled us
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to at least begin to return to something rea-
certainly could not) catalogue all of the wor-
sonably resembling our world before the vi-
risome signs but some stand out. Even
rus. Returning to the world that existed be-
though it may not immediately be clear what
fore Russia invaded Ukraine appears far
any of us might do, I encourage everyone to
more difficult, and it has not exactly been
contemplate how you can work to strength-
easy to get to this point with the virus.
en our democracy.
I mean no offense to Ukrainians by quoting a
What frightens me are laws like the Texas
Russian poet—it seems fitting to hear a Rus-
abortion law that appear to have successfully
sian poet over a hundred years ago la-
insulated themselves from judicial review. Is
menting the sudden shift in fortune the day
this the start of a new era where the judicial
(in the Julian calendar) World War I began. As sudden as Akhmatova’s “stroke” seemed
branch has no say? Other states are enacting similar measures and Democrats are consid-
to her and as sudden as current events seem to us, the forces that set the stage for these
ering using the technique in blue states. I’m not sure what lawyers can do but I hope it’s
events are not sudden at all. Which (finally) brings me to discuss the law.
something.
In many places around the world, autocracy
Gerrymandering is another arena rife with danger. Both modern-day parties (and those
is ascendant and democracy in decline. I include our country among those places. De-
before them) gerrymander. But since the gutting of the Voting Rights Act, it seems
mocracy takes a lot of work. Lawyers have an outsize role in that work. I need not (and
more extreme and more targeted, not just at a party but at specific groups of people, people of color foremost among them. Since the U.S. Supreme Court recently declared political gerrymandering unregulated by our Constitution, what can lawyers do? One thing is to work to advance independent commissions to draw maps. Many of us have assumed that modern developments in communication and information make an insidious slide into autocracy nearly impossible today. Hardly. How many expected social media to do what it has done? How many thought Russia would have virtually all information under the control of one party—indeed, one person—just
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thirty years after the fall of the Soviet Union?
in the world and we would be right. But we
Information and messaging is the ultimate
can do something about some of it. And we
power: the majority of Russians support the
have the skills and resources to make a
war in Ukraine, not because they support
difference. If we don’t use them, those with
what is happening but because they think
the tanks and missiles will.
something else entirely is going on. Since I have been around, I have never seen free
View this article at Marinbar.org
speech at risk to the extent it is today and I urge lawyers to work against this trend, which is coming from both left and right. It is not my goal to depress every single Marin Lawyer reader. Especially as spring is arriving and we are not just contemplating but sometimes acting upon seeing each other in person again. We may feel like there is little we can do about much of what’s happening
Rob Rosborough is Of Counsel to Monty
White LLP. He mediates disputes where an ongoing relationship is at stake, particularly adult-family conflict such as disagreement over caring for an aging parent, and HOA disputes. He also maintains an estate planning and HOA practice. Rob teaches at USF’s Fromm Institute (conflict resolution and history of science) and helps lawyers cope with the practice of law by teaching them meditation skills as a certified iRest® meditation teacher. EMAIL | WEBSITE
Visit MCBA or email volunteer@marinbar.org to learn more and to get involved.
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IN MEMORIAM Richard H. Breiner GARY T. RAGGHIANTI
We all lost a simply remarkable and iconic leader, lawyer, and judge when Richard H. Breiner died on February 26, 2022, at his home in San Rafael. He was 87 years old. I lost one of my oldest and dearest friends, a
man I respected, admired, and loved and with whom I enjoyed a close friendship spanning 52 years. Dick practiced law in Marin from 1965 to 1977. I met him when I was 24 and in the Marin County D.A.’s office; he was both a contract Public Defender and in private law practice in San Rafael with Robert I. Conn and Robert K. Birkie. I joined Dick in the practice in 1971, forming Conn, Breiner, Birkie & Ragghianti. We were
while riding his bicycle on Mount Tam. It was not at all certain that he would survive and
partners until 1977, when he was appointed to our Superior Court bench by then-
he was hospitalized for several months before starting rehabilitation. His fierce will to
Governor Jerry Brown. His well-earned professional reputation as a lawyer was further burnished, if not exceeded, by the reputation
live shone brightly during his long recovery and to the astonishment of many, he eventu-
he enjoyed during his two decades on our bench. He was a brilliant and successful lawyer and served with grace and distinction on the bench, displaying all the elements one
ally expressed a desire to return to the bench. Before he was permitted to return, his
wife and family asked me to see how he would react to hearing cases again in a court-
would expect in a superb trial judge: competence, fairness, good temperament, and a
room setting. Dave Freitas and I conducted a mock law and motion hearing before him while he was still in the hospital. We provid-
highly-developed and frequently-displayed sense of humor.
ed him with the pleadings from a real case and let him review them before we went to
In 1995, he suffered a catastrophic stroke
see him. There at the hospital, with doctors,
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neuropsychologists and his family looking on,
family and an incredible wife and a long-time
Dave and I commenced the argument. It was
caretaker who provided him with the care
quickly evident that the remarkable Breiner
and attention he needed to navigate his way
brain had not been irreparably damaged. He
through the affairs of each day. I hasten to
did well for 45 minutes, during which time
observe that were it not for his wife Dottie, I
we happily saw that even 75% of Breiner
do not think Dick would have lived as long as
was as good as 100% of most anyone else.
he did. She was relentless in her care and
He returned to the bench. After that, I be-
protection of him.
came fond of telling people my most memorable argument as a lawyer occurred not in a
courtroom but in a hospital.
Even when the muffled footsteps of death are known to be approaching, its arrival still
When he retired, he continued to participate
delivers a punishing blow. I was devastated at his passing even though I knew his health
in professional meetings and other social gatherings. He conducted mediations and
was failing. Many who knew him and who will read this I am certain felt the same. It is
regularly attended bar association events and judges’ meetings. Several years ago, he was
one thing to be well-regarded, highly competent, at the top of your profession as a law-
the recipient of The Marin County Bar Association’s Lifetime Achievement Award.
yer and a judge and quite another to become a beloved member of our legal community
MCBA had never given such an award and
and the judiciary. Dick Breiner accomplished
his unanimous selection was indicative of his
that.
colleagues’ high regard for him and the love so many of us had for him throughout his
I will carry the memory of Dick with me for
life. I was privileged to serve as the emcee for his award ceremony. I shall never forget that night, nor the praise and admiration he
all my remaining days. I was fortunate to become associated with him when I was young and more fortunate to have him teach and
received. It still makes me smile.
mentor me in my early years. The lessons I learned from him will never leave me. They
The last several years were not kind to Dick, as his health deteriorated. But his courage
are indelibly imprinted and extend far beyond just the practice of law. Simply stated,
and strength never failed him during these times and his fierce will to live was constant-
Dick Breiner made me a better person.
ly on display. He rarely, if ever, complained, despite the frequent discomfort he found himself in. He may have held the record for most trips to the ER during these times. Yet he persevered, his courage and determination in full sail. He had the help of an adoring
We may never see the likes of a man of this stature again in our community. But we can enjoy having had him with us for so long and we can strive to honor him by the way we comport ourselves in the practice of law and in the conduct of our personal lives.
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It will take a lot more than death to kill the
memory of Judge Richard H. Breiner. May you rest in peace my dear friend. I will miss you forever. View this article at Marinbar.org
Judge Breiner and mother at his induction ceremony in 1977.
Judge Breiner going for a ride.
Judge Breiner in the 1970s.
Judge Breiner at his daughter’s wedding.
THE MARIN LAWYER An Official Publication of the Marin County Bar Association
Photos Courtesy of Deborah Breiner
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LEGAL CAREER The Cases of My Career LARRY STRICK
I am a proud plaintiff’s personal injury lawyer.
moth tried every which way to get out from
My practice has permitted me to represent
under its responsibility as a retailer in the
hundreds of extraordinary people who need
chain of commerce, completely uncaring
help navigating a civil justice system to be
about the strain on the family who had to
made whole. Every client was unique. Many
care for Harry in his home. Of course, they
of them were disenfranchised; some were
tried their luck at a Summary Judgment
severely injured. Very often, my clients were hard-working folks whose injuries prevented
which was denied. After we conducted a focus group to test their arguments regarding
them from working and were falling through the limited safety net.
the allocation of fault between it and the bankrupted manufacturer, we were confi-
When looking back at the “biggest” or “most
dent that their arguments were not going to get sufficient traction. At the end of the day,
significant” cases of my career, I instantly begin thinking of the case I handled for Harry, who, while watching his grandson’s soccer game on a poorly designed lawn chair, fell back on his neck and was rendered para-
the result we were able to achieve provided him with sufficient funds to have a more comfortable end of life. I also think about Antoinette, a 43-year-old
lyzed. Harry had purchased the chair at a big box store, which had sourced it from a Mexi-
woman who underwent uterine fibroid surgery, which left her in a vegetative state be-
can manufacturer that had gone bankrupt by the time of Harry’s injury. The big-box behe-
cause of a non-attentive anesthesiologist. I never was able to speak to Antoinette. I learned about her artistic, vibrant, happy life from her mother. I saw pictures of her dressed for the holidays and her artwork in which she took such pride. I did spend hours with Antoinette’s mother who traveled to her bedside each day for the three years we worked on the matter. Of
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course, the doctor’s attorneys argued that
Then I recall a conversation I had with a cli-
while it was all terrible, it was not legally
ent many years ago. She had asked me a
their fault and she had a limited life expec-
question and I ignorantly responded by say-
tancy. That led to a rather grisly testimony of
ing, “Don’t worry, it’s not that big of a case.”
experts all focused on the year and date An-
Instantly, I saw her crestfallen eyes and real-
toinette was expected to expire. Years after
ized how hurtful my retort had been. I real-
the matter was successfully resolved, I had
ized to her it was the biggest and most sig-
the bittersweet experience of reconnecting
nificant case. And so is each case to each cli-
with Antoinette’s mom and her entire family
ent.
at a celebration of her life. I was greeted as a
part of her family and will never forget the hug I received from her mom, Virginia.
The thing is, each of the folks I represented has permitted me to help them have a more fulfilling, dignified comfortable life. I have
Then there was a young boy who, while holding his dad’s hand on an escalator leav-
been blessed performing a job that I love. A job that rights the wrongs that can easily fall
ing a 49ers game, had his toes ripped off because the escalator was poorly designed. Bil-
between the cracks that are all too wide. Every case is big when your client is the one
ly was 6 or 7 at the time. As a result of the incident, his foot was mangled and his par-
who is hurt.
ents were extremely upset. Somehow the
View this article at Marinbar.org
paper got hold of the story, and when they approached the City, which maintained the ballpark, it denied that had ever happened before. Unfortunately for the City, a prior client of mine whose son had suffered the same injury on a different escalator at the ballpark reached out to Billy’s parents, and we were able to obtain a more streamlined
Lawrence Strick has been a trial lawyer for 41 years, specializing in helping people obtain compensation for their injuries and for survivors of individuals killed by the wrongful acts of others. EMAIL | WEBSITE
resolution of the second case. But then I realize that these are just a few examples among hundreds of others where I represented clients who were injured just because they were in the wrong place at the wrong time; and when I think back on the cases of my career, the hundreds of clients I have had the pleasure to represent throughout my career come swirling back to mind. THE MARIN LAWYER An Official Publication of the Marin County Bar Association
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LEGAL EDUCATION SCHOLARSHIP Meet the 2021-22 MCBA Legal Scholars MCBA
The MCBA Legal Education Scholarship program provides scholarships up to $5,000 to financially disadvantaged students from Marin pursuing a law school degree. Funded with contributions from the MCBA, it is a collaboration with 10,000 Degrees and the Marin Community Foundation, which administer the fund.
If you would like to support the next generation of Marin lawyers, please consider making your tax-deductible donation today. MAKE A DONATION
Thank you to all of our donors for supporting the Legal Education Scholarship Fund. THE MARIN LAWYER An Official Publication of the Marin County Bar Association
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Samantha Cox-Parra is a second-year at Berkeley Law, where she is
a student researcher for the Berkeley Reproductive Justice Project and a conference coordinator for the Berkeley Journal of Entertainment and Sports Law. Samantha attended Terra Linda High and received her undergraduate degree in rhetoric from the University of California at Berkeley, the first in her family to earn a college degree. Prior to law school, she was a legal intern at the Marin County Public Defender’s Office, a judicial intern at STAR Court with Judge Wood, and a caseworker at the Associated Students of the University of California’s Legal Clinic. This past summer she was a judicial extern for the Honorable Judge Yvonne Gonzalez Rogers for the U.S. District Court for the Northern District of California. As a first-generation professional, Samantha aspires to serve her community, bring change, and build a better society through the justice system.
Clavey Robertson is a first-year student at the University of California, Hastings School of Law. Clavey attended Redwood High School and received an undergraduate degree at the age of 19 from the University of California at Berkeley with Honors in History. At UC, Berkeley Clavey was a library research assistant and participated in a number of labor strikes by assisting with strike preparation and interviewing attendees for the local newspaper. Clavey has also been involved in his community by delivering food to low income and disabled individuals through the Meals on Wheels program, as well as raising thousands of dollars towards a Tanzanian Children’s orphanage and school. Clavey’s experience with the Labor movement fueled the desire to go to law school and the aspiration to represent those in underserved communities, as well as shaping domestic policy.
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PRESIDENT’S MESSAGE HOUSING LAW Four Lots for the Price of One! – New Housing Laws and Their Impact on Marin RILEY HURD AND ASHLING MCANANEY
In its ongoing efforts to get more housing
the approval of certain infill housing projects
built, the California Legislature continues to
by providing a ministerial approval process,
enact new laws promoting a streamlined de-
and removing the requirements for environ-
velopment process. These laws often come
mental review and/or a conditional use per-
at the expense of the discretionary authority
mit. This is a far cry from the typical year(s)
of local cities. Two examples of this regulato-
long processes usually found in Marin and
ry tidal wave include SB 35 and SB 9, each of which transform previously complex entitle-
beyond.
ments into objective ministerial actions. In other words, for better or for worse, they take away local control of land use regulation.
SB 35 – The Affordable Housing Streamlining Act SB 35, codified at Government Code section 65913.4, requires local entities to streamline
In order to take advantage of SB 35, a proposed project must be located in a city that has failed to submit its annual housing reports to the Department of Housing and Community Development, or that is not
meeting its Regional Housing Needs Allocation (RHNA) from the state. These days, with the state pushing massive housing numbers onto the cities, this means SB 35 is available just about everywhere.
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A project must meet the following require-
considering SB 35 projects. First, the race is
ments to qualify for streamlined review:
on for local cities to adopt objective zoning
•
The project is located in an urban area and is 75% surrounded by urban uses.
•
The development is multifamily housing with two or more units.
•
•
ous?). Second, large parts of Marin are in restricted areas, such as the coastal zone or a flood zone. Familiarity with the everchanging mapping of these hazards zones is
of the square footage designated for residential use.
wage used to be a certain project-killer in
The project meets all objective zoning
ards. The site cannot be located in: a coastal zone, prime farmland, wetland areas, very high fire hazard severity zone, hazardous
critical. Finally, the payment of prevailing
Marin. However, with the rapid increase in construction costs, the gap between union and non-union labor has shrunk so significantly that the time and cost gains of a ministerial project often tip in favor of paying prevailing wage. SB 35 also requires no parking at all for certain qualifying projects, such as where the project is located within a halfmile of a public transit stop. This reduced
waste sites, delineated earthquake fault zone, flood zones (subject to mitigation
parking ratio can also play a large part in weighing the cost/benefit of pursuing an SB
measures), regulatory floodway, community conservation plan area, habitat for
35 project.
protected species, or lands under a conservation easement. •
were clearly subjective (e.g., is it harmoni-
The site is zoned for residential use or mixed-use development with at least 2/3
standards, objective subdivision standards, and objective design review stand•
standards. So many parts of old zoning codes
The development would not demolish any housing units that have been occupied by tenants in the last 10 years, are subject to any form of rent or price control, or are
SB 9 – Duplexes and Lot Splits SB 9 added Section 65852.2 to the Government Code and requires that a duplex, in a single-family zone, be approved ministerially by a city. Local rules that would physically preclude construction of the two units can-
restricted to low-income tenants.
not be enforced. Parking is limited to just one space per unit, and no spaces if the project is
•
The development would not demolish a historic structure.
located within one-half mile of public transit or if there is a car share vehicle located with-
•
If not a public work, the project propo-
in one block of the project.
nent must pay prevailing wages.
SB 9 also added Gov’t Code section 66411.7,
A few of these prongs arise most often in
which allows “urban lot splits” in residential
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zones to create two relatively equally sized
parcels of at least 1,200 square feet. The applicant must sign an affidavit stating that they intend to occupy one of the housing units as their principal residence for a minimum of 3 years from the date of the approval of the lot split. The parcel split may operate in conjunction with SB 9’s allowance for two separate residential units on a single parcel, thus allowing four units to ultimately
be constructed on a parcel where only one single-family home may have existed.
cilitate housing.
The creation of new housing is one of the top issues for the Legislature right now. Expect to see numerous laws continuing to streamline the process and accelerate what used to be truly incredible approval timelines. Only time will tell how the infrastructure of small cities like those in Marin will sustain this housing push, but for now, the rush is on.
View this article at Marinbar.org
The most notable exceptions to SB 9 are 1) the property could not have been used as a rental for the past three years, 2) the property cannot already have an accessory dwelling unit, 3) the new lot may not be less than 40 percent of the property. SB 9 does not apply
Riley F. Hurd. Riley is an attorney at Ragghianti Freitas LLP specializing in land use matters throughout Marin and the greater Bay Area. EMAIL | WEBSITE
to single-family parcels in historic districts, fire hazard zones, and rural areas.
Ashling McAnaney. Ashling is an attorney at
SB 9 is such a shift in the process that cities
use matters throughout Marin and the great-
are still crafting local ordinances to try to implement, or thwart, SB 9. Some cities welcome the streamlined review, others take
Ragghianti Freitas LLP specializing in land er Bay Area. EMAIL | WEBSITE
major issue with the displacement of their local control and are trying all methods to limit the creation of new housing (e.g., the City of Woodside tried to declare the whole
MCBA MEMBERSHIP
region as endangered mountain lion habitat to stop SB 9 from being used anywhere with-
Networking & Community
in city limits). The state is now watching closely as cities begin to implement these new laws. There is even a new office of housing accountability to serve as a watch-
Learning & Education Volunteer & Leadership Opportunities Professional Credibility
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PRESIDENT’S MESSAGE PODCASTS Top Nine Legal Podcasts You Are Not Listening To, But Should KRISTINE CIRBY
My podcast listening has typically been limited to the New York Times’ The Daily or NPR’s UpNext to learn what is happening in our world each morning. I recently began expanding my listening horizons at the suggestion of friends, who recommended some law-related podcasts. To compile a broader list, I also asked some local lawyers for their suggestions and through research included several that were repeatedly recommended. I hope you enjoy them.
Ear Hustle: This local podcast is a Radiotopia podcast that began at San Quentin State Prison. It was co-hosted by Earlonne Woods, then an inmate at the prison. Governor Newsom saw fit to commute Mr. Wood's sentence in 2017 but the podcast carries on and was a finalist for a Pulitzer Prize last year. Its episodes are informative about life inside prison, but also poignant, thought-provoking, and hilarious. Anyone
technology, and much more. The goal is to answer the questions that arise throughout all phases of a solo career, providing an opportunity to continue learning and improving.
who listens will come away understanding that none of us can be defined by the worst thing they've ever done.
Law360’s Pro Say: Pro Say provides a recap of what happened in the legal world in the past week. The hosts are legal journalists
New Solo: New Solo covers a diverse range
who discuss big stories, as well as a few that didn’t make the headlines. With the help of
of topics including transitioning from a law firm to a solo practice, rainmaking, law practice management, networking, job searching,
their expert guests, they present stories in an easy-to-digest format.
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Lawyer Entrepreneur: Host Neil Tyra focus-
into some of the U.S.’s most famous court
ses on “What They Didn't Teach Us About
cases. Author, actor, entrepreneur, and Har-
Running a Business in Law School.” The pod-
vard Law School graduate Hill Harper hosts
cast is born out of that frustration and his ex-
this entertaining podcast. In each episode,
periences from running his firm. Tyra talks
Hill works through court transcripts and in-
with successful solo and small firm practi-
terviews, making you feel as if you’re listen-
tioners along with leading business entrepre-
ing from the jury box.
neurs and shares how he implements what he learns with the goal of helping you take control of your practice, and your life.
Unf*ck Your Brain: (formerly the Lawyer Stress Solution Podcast). Hosted by Kara Lowentheil, who, after earning a B.A. from
Lawyer 2 Lawyer Podcast: For over 15 years, this podcast has covered relevant, contem-
Yale and a J.D. from Harvard Law, was on the law professor track when she pivoted to
porary news from a legal perspective. Host J. Craig Williams invites industry professionals
become a Master Certified Life Coach. She’s funny, smart and gives useful advice aimed at
to examine current events and recent rulings in discussions that raise contemplative ques-
women lawyers that is rooted in both cognitive psychology and feminism.
tions for those involved in the legal industry.
HONORABLE MENTIONS:
LawNext: Bob Ambrogi, publisher of LawSites, and publisher and editor-in-chief of
These are podcasts that are not publishing
LexBlog.com, features interviews with innovators and entrepreneurs who are changing
Heels of Justice: Sarita Venkat, head of IP
the future of the legal industry. From small firm and legal technology startups to new legal business models, Ambrogi’s podcast provides predictions on legal tech products, services, and the future of law. Amicus with Dahlia Lithwick: Amicus is a show about the law and the nine Supreme Court Justices who interpret it for the rest of America. Dahlia Lithwick is a CanadianAmerican lawyer, writer and journalist who is Slate's legal correspondent, providing summaries and commentary on current United States Supreme Court cases Legal Wars: This riveting show dives deep
new episodes but deserve a mention: Transactions Worldwide at Apple, and Katherine Minarik, General Counsel at Americas for Dyson, cohost this female-focused legal podcast. The two women created Heels of Justice so they could share the stories they wanted to hear—true stories about trailblaz-
ing female attorneys who made waves in politics, courtrooms, and boardrooms. The Resilient Lawyer with Jeena Cho: Emphasizing practical and actionable information you can use to be a better lawyer, Cho shares tools and strategies for finding more balance, joy, and satisfaction in your professional and personal life. She speaks
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21
with lawyers, entrepreneurs, mentors and
teachers who are successfully bridging the gap between their personal and professional lives, connecting the dots between their mental, emotional, physical and spiritual selves. While Cho ceased making the podcast in 2019, her messages continue to resonate. Did we miss your favorite podcast? Let us know!
View this article at Marinbar.org
Kristine Fowler Cirby has dedicated the past 30 years to advocating for clients in family law with the last 22 years exclusively in Marin County. She currently serves as Secretary on the Board of Directors for Marin County Bar Association and is currently President of the Board of Trustees for the Marin County Law Library.
EMAIL | WEBSITE
Find these podcasts on
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POLITICAL UPDATE Elections Are Back! A Look at the June Races GREG BROCKBANK Note: The views expressed in this article are opinions of the author and are not intended to reflect those of MCBA nor is this column an endorsement of any candidate.
And you thought politics—as in elections— had gone away. Well, they did, last year, anyway (if you don’t count the gubernatorial recall election, which I don’t, since nothing changed); there are no more regularlyscheduled local elections in odd-numbered years. I even “retired” at the end of 2020 from my “job” as a “political commentator,” having written articles like these for quite a number of years. But it’s now 2022, and I heard there were a couple elections coming up. MARIN’S LOCAL ELECTIONS In the consolidation of elections into evennumbered years, most moved to November for the higher turnout. But June still has a few: two supervisorial races, both of which will be for vacant seats; two city council races; the county’s (now) four department
heads, up every four years; and six judges’ seats, for six-years terms, usually uncontested.
for another term this year if not for the unexpected announcement of Marc Levine last fall. Levine is forgoing his chance for a (likely) final term in the State Assembly to run for State Insurance Commissioner. He’ll be challenging a Democratic incumbent, Ricardo Lara, running for his second term. Levine’s
move caused Connolly to accelerate his plan to run for his Assembly seat and I discuss those races a bit more below. Meanwhile, as for Connolly’s supervisor seat, current candidates include Mary Sackett, one of Connolly’s aides (and MCBA board member, as Damon was before her), and Gina Daley, a new San Rafael School Board member. Filing will have closed the day before publication of this article but as I write, it’s still possible other candidates will toss their hats into the ring.
County Supervisor – District 1
County Supervisor – District 5
Damon Connolly has occupied this seat for
Judy Arnold is retiring at the end of this year after four terms, and three candidates thus
seven years since he beat then-incumbent Susan Adams, and would probably have run
far are running to succeed her: Eric Lucan, now in his third term on the Novato City
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Council, well-respected, and a heavy favor-
Shelly Scott, will presumably skate to second
ite. The second candidate is Kevin Morrison,
terms, since neither has attracted much con-
who has run unsuccessfully twice in recent
troversy or opposition, or any challengers as
years for the Novato City Council. And final-
of March 9. Often seats like these have to-
ly, Colin Medalie, a deputy sheriff.
ken opposition against incumbents by chal-
CITY COUNCILS Mill Valley. Neither incumbent John McCauley nor James Wickham, is running for another four-year term, but Wickham is
running for the two-year term created by Tricia Ossa’s resignation last year, indicating his probable intent to step down in two years. New candidates for the two four-year terms include Max Perrey, who ran unsuccessfully for the council last time, and Stephen Burke, who was appointed to Ossa's vacant seat. Ross. Incumbents Julie McMillan and Elizabeth Robbins may have scared off any po-
tential challengers.
lengers not realizing how difficult it may be to beat an incumbent, particularly one who has served many terms. Doyle’s anointed successor from within the Sheriff’s Department is Jamie Scardina, who has announced
his intent to run for the seat of his retiring boss. There are two candidates for County Superintendent of Schools as of this writing: West Marin Superintendent John Carroll, and Michelle Hodge. SUPERIOR COURT JUDGES Every two years, a few of Marin’s ten Superior Court judges’ seats are up for election, but rarely does a judge serve out their term and
COUNTY DEPARTMENT HEADS
leave an open seat. Maybe once a decade that happens, but usually they resign mid-
The past couple decades have seen the con-
term, whenever they’re ready to retire, and
solidation of elected county positions and we are now down to four, whose terms are four years. Of the four, two are retiring after many terms: County Superintendent of Schools Mary Jane Burke, and SheriffCoroner Robert Doyle. The other two, District Attorney Lori Frugoli and Assessor/Recorder/Clerk THE MARIN LAWYER An Official Publication of the Marin County Bar Association
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the governor appoints a replacement, so it’s
priority among the public—at least among the
nearly always an incumbent running. This
Democrats.
year, the seats up for (re-) election are offices one through six, currently held by Roy Chernus, Sheila Lichtblau, Stephen Freccero, Paul Haakenson, Geoffrey Howard, and Andrew Sweet. Running against an incumbent judge is even more difficult than running against other incumbents—they tend to be able to raise significant campaign contributions
quickly. SANITARY DISTRICTS Two districts have elections: Ross Valley— big, and often controversial, whose incumbents Michael Boorstein, Thomas Gaffney, and Pamela Miegs have filed for re-election, and Almonte—small and little-known, whose incumbents with expiring terms are Casey Bertenthal and Linda Rames. CONGRESS AND THE STATE LEGISLATURE Jared Huffman, after 12 years as a local water board member and six years as a popular State Assembly member, has now served nine years in the House of Representatives and can presumably stay there as long as he likes. He regularly racks up over 70% of the
vote against an unknown token Republican, even though the northern portion of his district near the Oregon border is pretty conservative. His influence in Washington continues to grow along with his seniority, and his chairmanship of committees and subcommittees in environmental areas, where he is increasingly considered one of the, if not the, go-to guys on climate change issues, a rising
As mentioned, Marin County Supervisor Damon Connolly is running for the State Assembly seat that Marc Levine is giving up. I’ve long considered Connolly’s run likely, and in fact I think he’s a strong frontrunner based on the endorsements, fundraising, and volunteers he’s likely to get. But that hasn’t stopped a few other candidates from jumping in in recent months: Sarah Aminzadeh, a Kentfield environmental attorney and Coastal Commission member, who, like Connolly, has raised an impressive sum of money already; Steve Schwartz of Sebastopol, the founder of both the Interfaith Sustainable Food Collaborative, and California Food Link; and Ida Times-Green, a Sausalito-Marin City School District Trustee, whom a number of prominent progressive activists are supporting. CALIFORNIA’S STATEWIDE RACES With the Democrats’ increasing dominance in recent decades (virtually all statewide offices and supermajorities in the Legislature), the Republicans have become less and less relevant, and that will probably be true again this year. Increasingly, the Republican nominees for statewide offices are relative unknowns, except for occasionally an obscure legislator here and there. In most years (remember, they all appear on the ballot only every four years), there is a relatively even mix of new candidates for open seats, and incumbents seeking a second
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term before they are termed out. But this
year, it seems like the vast majority will be seeking a second term: Governor Gavin Newsom, Lieutenant Governor Eleni Kounalakis, Superintendent of Public Instruction Tony Thurmond, Attorney General Rob Bonta (appointed last year), and Secretary of State Shirley Weber (also appointed last year).
STATE BALLOT MEASURES
Usually at this time in the election cycle, there are several dozen pending ballot measures getting signatures or pending approval in the Secretary of State's office, and this year is no exception. But as of a decade or so ago, the June primary election can feature only measures put on the ballot by the Legislature, not the people via petition signa-
Treasurer Fiona Ma would be among that
tures, all of which now come in the Novem-
number, but she is foregoing a sure chance at a second term to run instead to fill the seat
ber election. So look for the usual dozen or two in November.
of termed-out Controller Betty Yee, for which she is the prohibitive favorite, almost as if she were already an incumbent in that seat. And Fiona Ma's seat for State Treasurer will almost certainly be filled by current Board of Equalization member Malia Cohen. Cohen was elected to that seat four years ago, following what is increasingly seen to be the well-worn path trod by both Yee and Ma. That leaves the one Democratic incumbent who is already subject to a challenge from within his own party: as mentioned, Insurance Commissioner Ricardo Lara is being challenged by Marin/Sonoma Assemblyman Marc Levine. People should remember that Marc Levine was elected to the Assembly in an upset of an incumbent, and he must think he can do it again, but even if he gets special interest money again (and he’s raised a substantial sum in his first few months), I doubt it will match the power of incumbency in a statewide re-election campaign, as virtually all the major Democrats statewide will circle their wagons and support Lara.
CONTROL OF CONGRESS AFTER NOVEMBER’S GENERAL ELECTION Many or most pundits predict that Republicans will pick up enough seats in Congress in November to have majorities in both houses, based primarily, I think, on the conventional wisdom that the party in the White House nearly always loses seats in midterm elections. That is even more likely to be true, they say, when the President's approval ratings are relatively low, as they currently are for President Biden.
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However, it still seems to me that Donald
til the 2024 elections, and the 2025 legisla-
Trump was so spectacularly bad in so many
tive year, assuming Democrats can regain the
ways (although he retains popularity, I do
majorities then.
think it's shrinking, and will continue to do so), that Biden and the Democrats will continue to benefit from that. Also, despite Biden’s relatively low approval numbers (not as bad as those of Trump), I think Biden has done a terrific job. Even my greatest fear— that he would be too much of a milquetoast
and not be progressive enough—has not been true.
But it is also possible that Democrats pick up one or more seats in the Senate (thus having a majority without Joe Manchin, and maybe Krysten Sinema) and maintain or even increase their narrow majority in the House, and Biden and the Democrats’ agenda will have a better chance of passage next year than now.
As always, it comes down to key races, and one of the best indicators I've seen in recent decades is the so-called “generic poll,” asking whether people would vote for a Democrat or a Republican, without naming names. Very often in the past, those polls have been very lopsided and predicted a sweep of one party or the other. We'll see in the coming months how that generic poll looks, which primary candidates win (e.g., Republicans too far right to win the general election, as happens once or twice each cycle, it seems), whether any U.S. Supreme Court decisions mobilize and/
View this article at Marinbar.org
Greg Brockbank is a 30-plus-year attorney and civic and political activist, having served for 22 years on the College of Marin Board of Trustees and then on the San Rafael City Council. He is the senior member and immediate past chair of the Marin Democratic Party governing board and has attended 30 state Democratic conventions. For over 20 years, he has provided numerous groups with detailed lists of the contact info for all candidates for Marin’s local offices, and appears as a commentator and election-night co-host on public access television. EMAIL | WEBSITE
or outrage one side or the other, and of course Biden's continuing performance.
Biden is blamed for partisan gridlock, of course, but that's been increasingly the case with the last few presidents, and if anything, I think Biden has done more to overcome it than any of his recent predecessors. It is certainly true that if Republicans take control of one or both houses of Congress, whatever dreams Biden and the Democrats may have of future legislative victories may be zero unTHE MARIN LAWYER An Official Publication of the Marin County Bar Association
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NONPROFIT PROFILE Humane Prison Hospice Project: Training Prisoners in Compassionate End-of-Life Care ROBERT ROSBOROUGH
A large majority of Americans want to die at home and not in a hospital. The reality is just the opposite. But in theory at least most of us have a choice. When your home is a pris-
on, the choice is rarely up to you. And for most prisoners, neither choice provides much in the way of palliative care. Humane Prison Hospice Project (“Humane”) seeks to change that. Founded on the belief that compassionate end-of-life care is a basic human right, Humane trains prisoners as hospice volunteers in end-of-life care and grief
support. American society still struggles when dealing with death. Most people prefer to avoid the topic even when it’s necessary to address. While palliative care is a growing field in the medical profession, it is still something of neglected stepchild. Our image of doctors and nurses is heroic, doing everything they can to save lives. In many places, the word
“hospice” is taboo, an admission of defeat. Most prisoners don’t have the problem of too much life-saving care. Their reality is being cared for by cell mates who are improvising the best they can: “Before my cellmate of five years passed, he begged me to take care of him. So I did. I fed him. I cleaned him up. When he had to go to the hospital, he fought
them. He wanted to come back. Him dying made me want to change. He was my friend. The person who took care of him, that was a good part of me.” (Lenny, quoted in Wendy MacNaughton’s California Sunday Magazine article, “Meanwhile in San Quentin.”) Only one prison in California has a formal hospice—the California Medical Prison in Vacaville. My friend Sandy Fish co-founded Humane in 2016. Death has been a thread running through her life and her life’s mission. She is an actress who did extensive research into prisons for an early role in the play Getting Out. (If you were a fan of the Netflix show Sense8, you’ve seen Sandy.) After moving to Marin, she became a trained hospice volunteer and can trace the founding of Humane to a moment in conversation with wellknown Marin lawyer Mike Satris (who went on to sit on Humane’s advisory board until his sudden death in 2020). She asked Mike
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how prisoners were dying in San Quentin
Humane trains Brothers’ Keepers members
and he responded, “Badly.”
in hospice care. Instead of improvising and
Nearly a quarter of the California prison population is over the age of 50. Between the aging of the baby boomers and the dramatic increase in the prison population, far more prisoners are dying in prison. Sandy teamed up with Ladybird Morgan, a registered nurse and clinical social worker, to found Humane
struggling, prisoners are able to be trained caregivers. And dying prisoners receive good care from someone who has a shared prison experience. Sandy Fish believes that how prisoners die has profound ripple effects, not just on other prisoners but on their families, prison staff, and the community as a whole.
to bring hospice care to prisons, starting with
While the pandemic has suspended many of
San Quentin. They soon realized the importance of training the prisoners themselves
San Quentin’s programs, including Humane’s, Sandy is confident it will resume. Its goal is to
to be the caregivers. They partnered with an existing organization: Brothers’ Keepers, a
expand the program to all California prisons, where helping people die with dignity and
suicide prevention and crisis intervention peer support group created by prisoners in
grace can bring beneficial ripple effects to communities across the state.
San Quentin. One of the founders of Brothers Keepers is Marvin Mutch, who said, “The
If you’d like to get involved with Humane,
way prisoners die says more about us and our humanity than the crimes of the imprisoned.” (Marvin is a great speaker, with a remarkable story of his own: he was released from San Quentin in 2016 after 41 years of wrongful imprisonment and now works for Humane. You can listen to his story on KQED.)
you can reach out to my friend Susan Barber, its director of community outreach, via email at susan.barber@humaneprisonhospiceprojec t.org. If you’d like to donate, you can attend Humane’s spring fundraiser at the Bolinas Community Center on April 10th, a screening of filmmaker Edgar Barens' Oscar-nominated documentary Prison Terminal, the Last Days of Private Jack Hall. Registration is free but donations are welcome at the event. Or you can simply donate on Humane's website.
View this article at Marinbar.org
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Thank You to the 2022 MCBA LEADERSHIP CIRCLE MEMBERS
MCBA LEADERSHIP CIRCLE
Join an elite group committed to and acknowledged for the vitality of our Bar Association. Leadership Circle contributions permit MCBA to better address and expand community programs such as Teens in the Law and Marin County’s Mock Trial Program, among others. Leadership Circle contributions also provide much needed capital to underwrite our MCLE initiatives and keep current with technology advances. Interested in joining the Leadership Circle? Contact MCBA at sponsorship@marinbar.org or call 415 499 1314. THE MARIN LAWYER An Official Publication of the Marin County Bar Association
30
PRESIDENT’S MESSAGE WEBINAR RECAP The Great Resignation—Is It An Opportunity? CHELSEA HEANEY
Preparing to Close, Sell or Buy a Law Practice? At MCBA’s January General Membership Meeting, MCBA Past President Wanden P. Treanor, Esq., and James L. Cunningham, Jr.,
Esq., founder and president of CunninghamLegal, held an engaging and insightful discussion regarding the ins and outs of preparing to close, sell or buy a law practice. Over the course of the one-hour program, they offered helpful advice regarding voluntary versus involuntary retirement; what the law says we must do to close a law practice; the advance planning required to make the decision to retire; the practice areas that are most marketable; if you practice what is marketable, what not to do; what an acquiring firm looks for in a practice; and how to value a practice. Ms. Treanor and Mr. Cunningham began their presentation with a discussion of the right time to close or sell a law practice. In addition to practical considerations, including deciding if you will in fact be able to sell your practice and for what value, they stressed the importance of preparing psychologically for what is undoubtedly a major event in one’s professional career. A consistent theme throughout the hour was the importance of understanding and adher
Presenters: James Cunningham and Wanden Treanor
ing to the relevant ethical rules pertaining to the closing, selling or buying of a law practice, and ensuring that we, as lawyers, preserve all applicable duties to our client and former clients as we navigate these processes. As an example, the treatment of client files is a major part of buying or selling a law practice, as the files are owned by the client,
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not the practice, and there are thus specific
Ms. Treanor and Mr. Cunningham transi-
ethical rules detailing what must be done to
tioned into a discussion regarding whether a
properly dispose of a client file. (See State
practice has value and, if so, how to value it.
Bar FORMAL OPINION NO. 2001-157.) The
In determining whether a practice has value,
presenters highlighted Rule of Professional
they identified a number of considerations,
Conduct 1.17 (re: Sale or Purchase of a Law
including the sources of the clients (do they
Practice) and the Duty of Confidentiality un-
come from referrals from a specific lawyer?
der Business & Professions Code section
because of the firm’s expertise or the exper-
6068(e)(1) and Evidence Code section 952,
tise of a specific lawyer in a particular area of
preserving inviolate confidential communica-
law?); whether it adds value for the existing
tions between a lawyer and client.
attorney to remain for an agreed-upon period; whether the support staff with
Mr. Cunningham has coined terms for four approaches to selling a law practice: 1. The “Passer” approach involves transfer-
ring your practice to another lawyer in your firm free of consideration. 2. The “Innie” approach involves transferring
your practice to another lawyer in your
firm for consideration. Mr. Cunningham notes that, to the extent the attorney selling the practice hires an associate for the purpose of eventually selling the practice to that associate, this should be made known to the associate up front. 3. The “Outtie” approach involves transfer-
ring your practice to an outside purchaser
for consideration. The “Innie” and “Outtie” approaches are the most similar, but constitute different types of transactions, given the nature of the sale. 4. The “Squeezer” approach involves wring-
ing out every last drop of economic value of your practice and then closing it.
knowledge of the clients and matters will remain; and the net income after expenses. While there are several ways to value a practice, common approaches include averaging the fee income over the previous five years by category of fees; expected fees over a number of years from the existing clients; engaging a business broker, or a business appraiser; reaching out to someone with experience purchasing practices (such as our very knowledgeable presenter, Mr. Cunningham!); and asking other lawyers about how they valued their practices and what works in the real world. The presenters identified lawbiz.com as a useful resource attorneys might consider when endeavoring to value and/or sell their practice, as well as 2002 State Bar publication, “Guidelines for Selling or Closing a Law Practice” (though the presenters noted this resource mostly deals with what happens if a lawyer dies or becomes incapacitated).
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Ms. Treanor and Mr. Cunningham concluded
3. It will likely take somewhere in the realm
their presentation with the following take-
of at least six months to get everything
aways:
squared away to position oneself to close
1. In deciding whether to sell a law practice,
it is important to look at what it is that is going to transfer to a buyer, including the value of the phone number, domain name and client list. 2. While it is important to consider whether
and/or sell a law practice, so it is important to allow sufficient time to complete all necessary steps. Consider, if not already doing so, digitizing files and procedures moving forward, as this will make closing and/or selling a practice much more streamlined.
the practice is saleable financially, it is equally important to think about the psy-
View this article at Marinbar.org
chological aspect of closing and/or selling one’s practice.
NOTE: You may view a replay of our February General Membership Program: The Technical and Legal “Underpinnings” of the Millennium Tower Project here. THE MARIN LAWYER An Official Publication of the Marin County Bar Association
33
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