Sacramento Lawyer Magazine

September/October 2013

Judge Laurie Earl

www.sacbar.org

Cover photo by Mark Long, Eleakis & Elder Photography

The SCBA’s 2013 Judge of the Year

Jurors on the Internet–What Are The Courts To Do? Sacramento’s St. Thomas More Society

California State Bar Trial Lawyer Hall of Fame, 2001 Fellow, American College of Trial Lawyers, since 1986 Northern California Super Lawyers since inception Best Lawyers in America since its inception, recently:

Who knows the vagaries of litigation better than a trial lawyer?

Lawyer of the year, Real Estate Litigation,

Sacramento, 2014

Lawyer of the Year, Commercial Litigation,

Sacramento 2010

Bet the Company Litigation, 2012, 2013, 2014 Commercial Litigation, 2012, 2013, 2014 Litigation-Banking and Finance, 2012, 2013, 2014 Litigation-Real Estate, 2012, 2013, 2014

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SPETEMBER/OCTOBER 2013 SACRAMENTO LAWYER

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Editor’s Message

Rookie Editor

By Betsy S. Kimball

G

reetings. I am the newly minted “Editor-in-Chief” of this fine publication. My turn at the helm starts with sincere thanks to Jack Laufenberg. As Jack wrote when he took over from Heather Hoganson: “I can think of no higher compliment than to say that [Heather] left the magazine in better shape than she found it.” So did Jack.

This is an all-volunteer magazine on the content side. Jack, Heather, Helene Friedman, Judge Chris Krueger, Joan Stone, and all of the other former Editors-in-Chief have earned our thanks. This magazine is what it is today because of their vision and hard work.

Now to introduce myself. I represent lawyers and handle appellate matters. The last time I was Editor-inChief of anything – at the Anna Head School for Girls in Berkeley (which now sounds like a reform school) –

was a really long time ago. Joining me on the magazine is an infusion of fresh talent: Ellen Arabian-Lee, Bryan Hawkins, Edward Lester, and Shaye Schrick. Each of them comes from a 100 percent SCBA membership firm, Shaye from Downey Brand, LLP, Edward from the Mastagni firm, Bryan from Stoel Rives, LLP, and Ellen from Gurnee & Daniels, LLP. Turning to this issue of the magazine, its focus is on SCBA’s “judge of the year.” Sincere congratulations to Presiding Judge Laurie M. Earl on her selection.

Judge Earl leads a great bench here.

I am not suggesting that our judges are perfect. I am saying that they are invested. Judges and lawyers alike, we have a common goal: a court system that functions. There are counties throughout the state where the civilside courts are barely functioning.

Sacramento is not one of them.

To underscore my point, I mention a recent experience I had in a county far from here. The law and motion judge gave me 30 seconds to argue my complex, case-dispositive motion.

While licking my wounds, I thought of the 30-minute arguments in Departments 53 and 54 that I have enjoyed (usually).

Let’s also recognize that our judges do not get paid extra for participating on MCLE panels, attending bar social functions, or writing articles for this and other publications.

These extra-curricular activities take time and energy, but – in my experience – they are another real benefit to the bar.

Thanks to Judge Stacy Boulware Eurie for writing the cover story about Judge Earl. Thanks to Judge Judy Hersher for continuing to write her articles on civil litigation. And again, congratulations to Judge Earl.

SCBA Interim EXECUTIVE DIRECTOR Mary J. Burroughs

EDITOR-IN-CHIEF Betsy S. Kimball bkimball@kimballwilson.com STAFF EDITORS Heather Cline Hoganson Ellen Arabian-Lee Bryan Hawkins Edward Lester Shaye Schrick SACRAMENTO LAWYER POLICY COMMITTEE Betsy S. Kimball Samson R. Elsbernd Helene Friedman David Graulich Coral Henning Yoshinori H.T. Himel

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COURTHOUSE STEPS steps@sacbar.org DESIGN & PUBLISHING Mary J. Burroughs (916) 564-3780 mburroughs@sacbar.org PRODUCTION DESIGN Milenko Vlaisavljevic SURFING FROM RIVER CITY Coral Henning (916) 874-6013 chenning@saclaw.org ADVERTISING SALES EVENTS - MEMBER CLASSIFIED ADS (916) 564-3780 reception@sacbar.org

SACRAMENTO LAWYER SEPTEMBER/OCTOBER2013

OFFICERS Bruce Timm - President Stacy Moak - 1st Vice President BJ Susich - 2nd Vice President Angela Lai - Secretary Treasurer BOARD OF DIRECTORS DIRECTORS AT LARGE Sonia Fernandes David Graulich Susan Hill Jason Jasmine Jeannie Lee Jones Katie Patterson William Schuetz Mark Slaughter Sabrina Thomas Sacramento Law Foundation Stephen Duvernay, saclawfoundation.org

AFFILIATE REPRESENTATIVES Asian Bar Association Kara Ueda Barristers’ Club Monica Hans Capitol City Trial Lawyers Jack Vetter Federal Bar Association Breann Moebius LaRaza Michael Terhorst Leonard M. Friedman Bar Association Jeff Levine Saint Thomas More Society of Sacramento Herb Bolz Sacramento Lawyers for the Equality of Gays and Lesbians Jeff Edwards South Asian Bar Association Tej Grewal

SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE V O L U M E

Table of Contents 1 1 4 ,

N U M B E R

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S E P T E M B E R / O C T O B E R

2 0 1 3

LITIGATION 8 A View from the Civil Trial Bench: The Internet and Misbehaving Jurors: What Price Justice?

COVER STORY 18 Judge Laurie Earl, The SCBA’s 2013 Judge of the Year

ETHICS 30 The Ethical Lawyer, The Rules of Professional Conduct, “Professional Integrity in General”

EVENTS 14 Appellate Section Annual Summer Reception

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SECTION & AFFILIATE NEWS 20 Sacramento’s St. Thomas More Society Update 24 The Public Law Section is Re-chartered and Re-launched

DEPARTMENTS 4 Editor’s Message 6 President’s Message 12 Law Library News 13 Surfing from River City

29 32 34 34

Calendar Courthouse Steps Classifieds Index to Advertisers

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Sacramento Lawyer welcomes letters and article suggestions from readers. Please e-mail them to editor@sacbar.org. The Sacramento County Bar Association reserves the right to edit articles and letters sent in for publication. Please contact SCBA 916-564-3780 x206 for deadline information, fax 916-564-3787, or e-mail mburroughs@sacbar.org. Web page: www.sacbar.org.

Caveat: Articles and other work submitted to Sacramento Lawyer become the copyrighted property of the Sacramento County Bar Association. Returns of tangible items such as photographs are by permission of the Executive Director only, by pickup at the SCBA office only.

Wiley Manuel Bar Association Alana Mathews Women Lawyers of Sacramento Nichole Rapier COMMITTEE / SECTION REPRESENTATIVES Lawyer Referral and Information Service Peter Kyung Conference of Delegates Andi Liebenbaum Indigent Defense Panel Kevin Adamson Section Representative Daniel Yamshon Voluntary Legal Services Program Victoria Jacobs SECTIONS Administrative Law Heather Cline Hoganson

Alternative Dispute Resolution Ken Malovos Appellate Law Scott Cameron Bankruptcy & Commercial Law Jamie Dreher Business Law Sarra Ziari Children’s Counsel Diane Wasznicky Environmental Law Andrea P. Clark Family Law Russell Carlson Health Care Kristen Cerf / John Puente Labor & Employment Law Meredith Packer Garey Probate & Estate Planning Donna L. Courville Real Property Ian M. Hunter

Tax Law Ciro Immordino Worker’s Compensation Jason Marcus COMMITTEES Bylaws BJ Susich Continuing Education of the Bar Taylor Bentley Diversity Hiring and Retention Linda Partmann Electronic Media Herb Bolz / Katie Patterson Fee Arbitration Ken Bacon Judicial Review Philip R. Birney Judiciary Diane W. Wasznicky Membership Kurt Hendrickson

Pictorial Directory Herb Bolz Sacramento Lawyer Policy Betsy S. Kimball Sacramento Lawyer (USPS 0981-300) is published bi-monthly by the Sacramento County Bar Association, 1329 Howe Avenue, #100,Sacramento, CA 95825. Issn 1087-8771.

Annual subscription rate: $6.00 included in membership dues, or $24.00 for nonmembers.

Periodicals postage paid at Sacramento, California. Postmaster: Send address changes to Sacramento Lawyer, 1329 Howe Avenue, #100, Sacramento, CA 95825. Copyright 2013 by the Sacramento County Bar Association.

Each author’s commentary reflects his/her individual opinion only and not that of his/her employer, organization with which he/she is affiliated, or Sacramento Lawyer magazine, unless otherwise stated.

SPETEMBER/OCTOBER 2013 SACRAMENTO LAWYER

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President's Message

The SCBA’s Court Funding Task Force

As

I am, you are all undoubtedly aware of the significant challenges faced by our state courts due to the debilitating budget cuts to the judicial branch over the past five years. Despite a modest reinvestment in this year’s budget of $60 million, the trial courts are still in a deep financial hole, by some accounts of nearly half a billion dollars. As a result, our clients continue to suffer the “real world” consequences of reduced access to justice.

By way of example, small businesses suffer when they are unable to timely resolve business disputes with competitors, and families are exposed to great harm when sensitive family law disputes cannot be timely resolved.

All Californians—individuals and small businesses alike—are denied access to justice when the judicial branch is not adequately funded. For those of us in the civil bar, our clients pay increased fees to the courts, while certain law and motion matters cannot be timely resolved, court reporters cannot be provided, and matters cannot be timely brought to trial. Our local courts—with leadership from Sacramento’s Presiding Judge Laurie Earl—have done an incredible job balancing an increased need for services at a time when funding is decreasing. Unless funding is restored at a realistic level, the situation will continue to get worse, as courts throughout the state contemplate more cuts and service reductions to manage increasing structural deficits.

In January of this year, the SCBA’s Board of Directors took action. We believe that our Association has an obligation to be an active voice for adequate court funding.

The Board formed the SCBA Court Funding Task Force to mobilize our members, coordinate with the judiciary, work closely with other local bar associations to educate the public, and engage the Legislature. Given our proximity to the State Capitol, many members of our Association have strong relationships with members of the Legislature. In other words, our local bar association is uniquely situated to assist in the fight to restore adequate funding to our courts.

The SCBA’s Court Funding Task Force is led by Hon. Art Scotland (ret.). Joining Justice Scotland and me are the following local attorneys: Ralph Ochoa (co-chair) Bob Buccola (co-chair)

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SACRAMENTO LAWYER SEPTEMBER/OCTOBER2013

By Bruce M. Timm

Nancy Miller (co-chair) Lance Olson Sherri Kirk Luis Cespedes June Powells-Mays Pat Sturdevant Kathi Finnerty June Coleman Katie Patterson Jennifer Gibson Kara Ueda And again, thanks to our proximity to the heart of the action, our Task Force has benefited greatly form the input of Judge Earl, as well as Cory Jasperson and Andi Liebenbaum from the Judicial Council’s Office of Governmental Affairs.

Task Force members are currently engaged in two critical activities. First, several are reaching out to key legislative leaders and members of the Governor’s office with the goal of developing “court champions” within the executive and legislative branches. Second, we are producing a document on the state of our local judiciary to highlight the dire circumstances caused by cuts to the branch, and specifically how those cuts impact justice in the Sacramento region. In short, our Association is actively engaged on the critical issue of court funding.

You have an important stake in our work. To that end, if you can and would like to assist the SCBA’s Court Funding Task Force, please contact the bar office as soon as possible.

With all of this in mind, please RSVP for our Annual Bench-Bar Reception on September 12, 2013, from 6:00 to 9:00 p.m., at the Tsakopoulos Library Galleria. This year, we will honor Judge Earl as the Association’s 2013 Judge of the Year, both for her tremendous dedication to the local bar, and for her outstanding leadership statewide.

For more information about the SCBA’s Court Funding Task Force, and to RSVP to the Bench-Bar Reception, please contact Mary Burroughs at 564-3780.

For more information visit: www.sacbar.org

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Litigation

A View from the Civil Trial Bench: The Internet and Misbehaving Jurors: What Price Justice?

By Judge Judy Holzer Hersher

This article represents the thoughts and opinions of the author and should not be considered court policy or the opinion of other trial judges. Comments should be addressed to HersherJ@saccourt.ca.gov.1

W

hat is to be done about the juror who ignores a judge’s orders and admonitions against doing independent research or communicating about a case on personal blogs or social media sites?

How are counsel and the courts going to ensure that trials are conducted fairly, with the promised test of evidence being done openly in the courtroom for all to see, hear, and consider together?

Should the consequence to an offending juror be different if the actions affect a criminal trial or a civil trial? Should the juror spend time in jail, pay a fine or court costs? Who foots the attorney bill in those cases where a retrial is necessary to preserve fairness for the parties whose day in court was tainted by knowing or willful disobedience? What solace, if any, is there for the litigants who face retrials and the associated stresses and strains, in the remedies that are offered? Yes, the electronic digital age is fully upon us, and the courts, the ultimate open public forum for justice, are struggling with how to manage the challenges that the omnipresent internet-connected cell phone, tablet, and computer present in the modern day jury trial.

Since 2000, there have been a combined 25 unreported and reported decisions examining problems associated with the prohibited use of the internet and technology by jurors during trial or deliberations. Many more instances are reported anecdo-

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SACRAMENTO LAWYER SEPTEMBER/OCTOBER2013

tally by trial judges at conferences and meetings. The reported actions include jurors in civil and criminal cases researching online definitions of negligence, circumstantial evidence, reasonable doubt, great bodily injury, or probable cause;2 information about the parties involved in the case3 or information that was not presented during trial;4 personal blogs about the case;5 Facebook postings regarding parties or witnesses or comments by the juror or others;6 the background of attorneys associated with the case;7 texts during deliberations;8 research on weapons or guns;9 the toxicity of common household drugs like Tylenol or ibuprofen;10 mental disorders;11 judicial sentencing options;12 and viewing electronically the scene of an event and/or information on the plaintiff/victim.13 The ultimate issue addressed by all appellate courts is the same: should the trial court have disqualified the misbehaving juror, other jurors, or the entire panel? Should a new trial be ordered so that the parties will have had their day in court and a fair trial, be it civil or criminal?

Courts are struggling with how to manage the challenges presented by the omnipresent internet-connected juror.

In each of the cases--reported and unreported--the appellate courts reviewed the record and started from a presumption of prejudice to the liti-

gants if it was shown the juror had violated any court admonition. The subsequent appellate analyses focused not only on the action of the individual juror, but the impact, if any, on the other jurors, the quality and nature of the improperly received information or conduct, and whether the information or conduct was actually used by the offending juror or other jurors in reaching a verdict. The court’s perception of the juror’s credibility in responding to its questions was also critical, as well as the action of the presiding juror, if any, and whether he or she instructed the offending juror(s) not to discuss or bring the additional evidence for consideration into the jury room and whether he or she instructed the other jurors not to take that information or action into account. Ordering a new trial was reserved for only the most egregious violations or where the presumption of prejudice was not rebutted and removing the one or two offending jurors would not suffice.14 Two years ago the California legislature thought it was doing the right thing when it amended Penal Code section 166 and added a subsection (6) making it a misdemeanor to willfully disobey a court admonishment related to the prohibition of any form of communication or research about a case, “including all forms of electronic or wireless communication or research.”15 This, it was likely thought, would impress jurors with the seriousness of the admonitions given by the

court against improper electronic communications or research. Penal Code section 166(6) aptly appears in the section dealing with “Crimes against Public Justice.” The section shares space with other contemptuous court behavior, including violations of street gang injunctions, domestic violence restraining orders, and the unlawful possession of firearms.

The same legislation also amended Code of Civil Procedure section1209 by adding a new subsection (a)(6) that makes these actions punishable by civil contempt. (“The following …are contempts of the authority of the court:…(a)(6) Willful disobedience by a juror of a court admonishment related to the prohibition of any form of communication or research about the case, including all forms of electronic or wireless communication or research.”)

Less often mentioned, but nonetheless on the books, is another section of the Penal Code that makes it a felony to do virtually the same thing. Penal Code section 66 states, in part, that anyone who “willfully and corruptly permits any communication to be made to him, or receives any book, paper, instrument, or information relating to any cause or matter pending before him, except according to the regular course of proceedings, is punishable by fine not exceeding ten thousand dollars ($10,000),” or by imprisonment up to three years. (See also Code Civ. Proc. §1209(a)(11) (“…improperly conversing with a party to an action to be tried at the court, or with, any other person, in relation to the merits of the action, or receiving a communication from a party or other person in respect to the action, without immediately disclosing the communication to the court” is punishable by contempt).

Also in 2011, the California Legislature directed the courts to draft and adopt jury instructions advising jurors of the prohibitions and their potential ramifications. The Advisory

Committees for the California Civil Jury Instructions (CACI) and Criminal Jury Instructions (CALCRIM) each, respectively, have added instructions on point.

Effective June 2011, CACI added introductory Instruction 116 to explain to jurors at the beginning of the trial why they should follow the admonitions. (“The evidence that is presented in court can be tested; it can be shown

to be right or wrong by either side; it can be questioned; and it can be contradicted by other evidence. What you might read or hear on your own could easily be wrong, out of date, or inapplicable to this case…a trial is a public process…Using information gathered in secret by one or more jurors undermines the public process and violates the rights of the parties.”) Introductory Instruction 116 was designed to com-

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plement and explain the admonition in CACI 100 that that if civil jurors violate any of the prohibitions on communications or research they can be held in contempt of court, face sanctions, serve time in jail, pay a fine, or face other punishments. The same is repeated in CACI 5000 (Duties of the Judge and Jury), typically given at the close of evidence. (“These prohibitions on communications and research extend to all forms of electronic communications…”)

Similar language is found in CALCRIM Instruction 101 (Cautionary Admonitions: Jury Conduct)(“I want to emphasize that you may not use any form of communication, including electronic or wireless research or communication, to research, share, communicate, or allow someone else to communicate with you regarding any subject of the trial. [If you violate this rule, you may be subject to jail time, a fine, or other punishment]); and in CALCRIM Instruction124 (Separation Admonition)(“Remember do not talk about the case or about any of the people of any subject involved in it with anyone, including the other jurors. Do not do research, share information, or talk to each other to anyone else about the facts of the case or anything else connected with the trial, and do not use any form of electronic or wireless communication to any of those things, either.”)

The Jury is Out on the Fix. Have the instructions or statutes mitigated the problem going forward evidenced in the two dozen cases currently available for review? Only time will tell. The problem is as much human as legal. Are jurors not understanding the important constitutional issues at stake? Are the court and counsel not being effective in explaining the ramifications of the conduct to the jury? Or is human nature such that there will always be the temptation to ignore the limits, and will there

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always be persons who will succumb to them? And finally, are these current issues no more or less than a factual twist on the brand of juror problems that courts historically have had to deal with under an appropriate trial review procedure already in effect?

The new criminal language has heightened concern for the courts and the litigants. Any allegation of improper conduct by a juror during trial triggers a duty on the part of the court to investigate. The possibility of criminal prosecution adds a greater level of complexity. Since use of electronic communications during trial is punishable as a misdemeanor, felony, and/or by contempt, Miranda warnings16 and/or appointment of counsel for the alleged offending juror may well be in order.17 Once that happens, a court may not be able to adequately question the juror to determine if, in fact, the trial has been undermined in some improper fashion, as the juror may invoke his or her constitutional privileges against self-incrimination.

Granting or denying immunity to the juror may help the court investigate the problem, but it doesn’t serve the deterrent effect hoped for the statutes.

The Criminal Law Advisory Committee to the Judicial Council is currently considering a recommendation to delete subsection (6) from Penal Code section 166 by legislation effective January 1, 2015 and a possible revision of Penal Code section 96.

According to the Criminal Law Advisory Committee, although civil contempt proceedings raise similar constitutional implications to criminal proceedings, “the authority to initiate civil contempt proceedings lies exclusively with the court. Thus, if the court believes that questioning the juror is necessary to preserve the integrity of a pending trial, the court could first offer the juror immunity from civil contempt sanctions in exchange for a formal inquiry on the record. This process would ensure that the conduct of the trial, including

any inquiry of a juror into the use of electronic communications during the trial, remains squarely within the province of the court.” (See Invitation to Comment, LEG 13-02, Proposed Legislation: Criminal Procedure: Misdemeanor Contempt by Jurors, issued by the Judicial Council of California, Administrative Office of the Courts (www.courts.ca.gov/policyadmin-invitationstocomment.htm), action requested by June 19, 2013.)

While eliminating criminal sanctions may avoid obstacles to court investigation into juror misconduct that threaten the integrity of a trial process, it fails to proactively address the results of the increasing problem faced by trial courts. At present, there is no statutory mechanism for reimbursing the parties or the court for time associated with dealing with a violation of any of the Penal Code sections or general admonitions. If the court or parties proceed against the juror on the basis of civil contempt, in addition to the $1,000 fine and/or up to five (5) days in the county jail for each offense, the court can order the offending juror to pay the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by the party “in connection with the contempt proceeding.” (Code Civ. Proc. §1218(a), emphasis added.)

This, however, does not address the costs and attorney fees associated with having to redo a trial. To the extent that any potential sanction works as a deterrent, perhaps one approach would be the creation of a civil statute that would make a juror liable for all court costs and attorney fees and costs proximately caused by their actions.

Such a civil action could be brought by county counsel, or individual litigants adversely affected, without imposition of a contempt sanction or order.

Perhaps the potential for substantial out-of-pocket juror damages would serve as a greater deterrent than criminal or contempt sanctions, particularly if the later choices create more prob-

lems than they solve. Or, perhaps, this is another cost inherent in a system of justice and one we just have to live with.

1. The author wishes to acknowledge the research contributions of U.C. Davis School of Law School student Pedro Avilia to this article.

2. People v. Hamlin (2009) 170 Cal.App.4th 1412; Real v. WAL-MART Stores, 2002 Cal.App.Unpub. LEXIS 4692 (Cal.App. 2d Dist. Jan. 22, 2002); People v. Dale, 2004 Cal.App.Unpub. LEXIS 5546 (Cal.App. 4th Dist. June 9, 2004); People v. Mendoza, 2001 Cal.App.Unpub. LEXIS 802 (Cal.App. 5th Dist. Dec. 12, 2001); People v. Bryant (2011) 191 Cal.App.4th 1457.

3. People v. Lemus, 2010 Cal.App.Unpub.

LEXIS 6323 (Cal.App. 2d Dist. Aug. 10, 2010).

4. Potts v. Radioshack Corp., 2006 Cal.App.Unpub. LEXIS 6504 (Cal.App. 4th Dist. July 26, 2006); People v. BerryVierwinden, 2012 Cal.App.Unpub. LEXIS 8584 (Cal.App. 4th Dist. Nov. 27, 2012); People v. Dancel, 2005 Cal.App.Unpub.

LEXIS 5553 (Cal.App. 1st Dist. June 28, 2005); People v.

Catalan, 2007 Cal.App.Unpub. LEXIS 628 (Cal.App. 2d Dist. Jan. 26, 2007).

5. People v. Donald Richard McNeely, 2007 Cal.App. Unpub. LEXIS 4752 (Cal.App. 4th Dist. June 14, 2007).

6. Juror Number One v. Superior Court (2012) 206 Cal.App.4th 854; People v. Lugo, 2013 Cal.App.Unpub. LEXIS 4734 (Cal.App. 4th Dist. July 1, 2013); People v. Lozano, 2011 Cal.App.Unpub. LEXIS 9556 (Cal.App. 4th Dist. Dec. 14, 2011).

7. Zhao v. Mazda Motor of Am., 2013 Cal.App.Unpub. LEXIS 444 (Cal.App. 1st Dist. Jan. 18, 2013); Ramos v. Shearer, 2008 Cal.App.Unpub. LEXIS 4960 (Cal.App. 4th Dist. June 18, 2008); People v. Chester William Owen, 2007 Cal.App.Unpub. LEXIS 4422 (Cal.App. 4th Dist. May 31, 2007).

8. People v. Foreman, 2010 Cal.App.Unpub.

LEXIS 7521 (Cal.App. 4th Dist. Sept. 23, 2010).

9. People v. Dale, 2004 Cal.App.Unpub.

LEXIS 5546 (Cal.App. 4th Dist. June 9, 2004); People v. Zeff Gotti Rocco, 2007

Cal.App.Unpub. LEXIS 4550 (Cal.App. 2d Dist. June 6, 2007).

10. People v. Smith, 2009 Cal.App.Unpub.

LEXIS 4925 (Cal.App. 3d Dist. May 22, 2009).

11. People v. Williams, 2006 Cal.App.Unpub.

LEXIS 7220 (Cal.App. 6th Dist. Aug. 17, 2006).

12. People v. Lister, 2006 Cal.App.Unpub.

LEXIS 11693 (Cal.App. 4th Dist. Dec. 29, 2006); People v.

Santos, 2010 Cal.App.Unpub. LEXIS 5555 (Cal.App. 2d Dist. July 15, 2010).

13. People v. White, 2013 Cal.App.Unpub.

LEXIS 2541 (Cal.App. 4th Dist. Apr. 10, 2013).

14. Potts v. Radioshack Corp., 2006 Cal.App.Unpub. LEXIS 6504 (Cal.App. 4th Dist. July 26, 2006); Zhao v. Mazda Motor of Am., 2013 Cal.App.Unpub. LEXIS 444 (Cal.App. 1st Dist. Jan. 18, 2013); People v.

Pizarro (2013) 216 Cal.App.4th 658 .

15. §166. Criminal contempts. “Except as provided in subdivisions (b), (c), and (d), a person guilty of any of the following con-

tempts of court is guilty of a misdemeanor: …”

Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.

16. Miranda v. Arizona (1986) 384 U.S. 436 and its progeny established the now wellknown advisements law enforcement must give at certain junctures to persons under investigation and/or those being charged with a crime.

17. U.S. Const. 6th Amend.; Cal. Const. art.

I, §15. See also Pen. Code §§686, 859, 987; Gideon v. Wainwright (1963) 372 U.S. 335; Mempa v. Rhay (1967) 389 U.S. 128, 134; Miranda v. Arizona, supra, 384 U.S. 436. The rights of an alleged contemnor charged with indirect contempt are the same as those of a criminal defendant, with limited exception.

See, e.g., Code Civ. Proc. §1217; Gov. Code §27706(a); In re Witherspoon (1984) 162 Cal.App.3d 1000.

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Law Library News

Sacramento County Public Law Library News Spotlight on the Collection: Restatements Return to the Law Library Kate Fitz, Public Services Librarian, Sacramento County Public Law Library

D

id you miss the Restatements after we moved? Good news–Restatements are back at the Law Library!

The Restatements of the Law are a unique resource for lawyers. Each Restatement distills the case law on a particular topic into a series of concise principles or rules, and adds Comments, Illustrations, and Reporter’s Notes. Despite having no binding legal authority, they are so respected that they are routinely cited by courts throughout the nation. In fact, the United States Supreme Court cited to Restatements in nine cases in the 2012-13 term, including using the Restatement (Third) of Agency to define the key standing issue in Hollingsworth v.

Perry (the Proposition 8 case).

When the library moved to our current location at 609 9th Street, unfortunately, we were unable to bring the Restatements with us in print format. After numerous people requested

609 9th Street Sacramento, CA 95814 916-874-6011 www.saclaw.org www.facebook/saclawlib www.twitter/saclawlibrarian

them, we brought them back electronically through our Hein Online database. In fact, we have all of the Restatements we had in print, plus more than we ever had before–current, historical, and draft Restatements, Principles of Law, the Uniform Commercial Code, the Model Penal Code, and more.

Hein Online provides exact PDF copies of the original books. You can pull up a citation directly or search by keyword for your topic. It’s easy to print or save to a USB drive or CD. Whenever you visit the law library, you can pull up the restatements either by using our online catalog or logging on to Hein Online. Feel free to ask a librarian for more information!

Hein Online currently includes the following Restatements (more are coming): Agency, Business Associations, Conflict of Laws, Contracts, Economic Torts and Related Wrongs, Employment Law, Foreign Relations Law of the United States, Judgments, The Law

Limit 5 documents per day, per attorney.

SACRAMENTO LAWYER SEPTEMBER/OCTOBER2013

Reach A Variety of Sacramento Area Open for Professionals House ad

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Need a case or law review article? Want to see if your case is still “good law?” Email the Reference Desk at reference@saclaw.org or call 916-874-6012 with a complete citation, and a librarian will email you the document within 24 hours.

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Governing Lawyers, Property, Property: Landlord and Tenant, Property: Donative Transfers, Property: Wills and other Donative Transfers, Property: Servitudes, Property: Mortgages, Property: Joint Ownership, Restatement in the Courts, Restitution, Restitution and Unjust Enrichment, Sales of Land, Security, Suretyship and Guaranty, Torts, Trusts, Unfair Competition, Restatement of the Law Index.

Be sure to think of us next time you need to use the Restatements – or any of our books and databases.

ADVERTISE IN Sacramento Lawyer Magazine (916) 564-3780 x206 Mary Burroughs or email: mburroughs@sacbar.org

Surfing From River City:

Use Screencasting Software to Create Online Tutorials Compiled by Robyn M. Moltzen, Public Services Librarian, Sacramento County Public Law Library The current theme of this issue of the Sacramento Lawyer is a good reminder for the legal community to locate and become familiar with the many resources available for members of the judiciary or attorneys who would like to know more about becoming a member of the judiciary. Learn more about this topic by browsing the compilation of websites listed below.

Bench-Bar Coalitionhttp://www.courts.ca.gov/partners/bbc.htm

The Bench-Bar Coalition (BBC), composed of judges and leaders of local and statewide bar associations and legal services organizations, is designed to enhance communication, perform legislative outreach, and coordinate the activities of the judicial community with the state. Look here for information that will assist BBC members in preparing for outreach activities.

California Code of Judicial Ethicshttp://www.courts.ca.gov/documents/ca_code_judicial_ethics.pdf

The California Courts website has a current version of the California Code of Judicial Ethics. The Code of Ethics estab-

lishes standards for ethical conduct of judges on and off the bench and for candidates for judicial office.

California Judges Associationhttp://www.caljudges.org

The California Judges Association was established in 1929 and is the professional association representing the interests of the judiciary of the State of California. Members include judges of the Superior Courts and Courts of Appeal, Commissioners of State courts and State Bar Court judges. Judges retired from these courts are also members.

California Judges Benchguideshttp://www2.courtinfo.ca.gov/protem/pubs/

The Administrative Office of the Courts maintains this website that provides direct links to the publications and online courses published for judges by the Center for Judiciary Education and Research (CJER) including the popular benchguides.

History of the Bench-Bar http://scholarship.law.berkeley.edu/facpubs/1263

Explore the history of the Bench-Bar through this great article written by Charles J. McClain. History of the Bench and Bar of California: Being Biographies of Many Remarkable Men, a Store of Humorous and Pathetic Recollections, Accounts of Important Legislation and Extraordinary Cases, 5 Cal. Legal Hist. 399 (2010).

Sacramento Superior Court - Judicial Phone Directory http://www.saccourt.ca.gov/general/docs/judicialdirectory.pdf

Judicial Phone Directory for Sacramento Superior Court.

Sacramento Superior Court Temporary Judge Programhttp://www.saccourt.ca.gov/general/temporary-judge.aspx

The Sacramento County Superior Court maintains a panel of trained, qualified, and experienced attorneys who may serve as temporary judges in the areas of family law, probate, traffic, and small claims. This website will provide up-to-date information regarding the application process, enrollment dates, and resource links about the Temporary Judge Program.

For more information visit www.sacbar.org SPETEMBER/OCTOBER 2013 SACRAMENTO LAWYER

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Event

Appellate Section Annual Summer Reception

By Betsy S. Kimball

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back. I love the courtroom,” commented Justice Cole Blease.

The event was well attended by members of the appellate section, led by Chair Scott Cameron. Along with many of the court’s staff, most of the members of

Photography by Ken Rabiroff

he appellate section held its annual summer gettogether in the foyer of Stanley Mosk Library and Courts Building. After being closed for renovation since 2009, the building is now more stunning than ever. “I love being

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Event

the bench attended, including Presiding Justice Vance Raye and Associate Justices Cole Blease, Ron Robie, Kathleen Butz, Louis Mauro, William Murray, Elena Duarte, and Andrea Hoch. Ninth Circuit Court of Appeals Judge Connie Callahan was also on hand for

the event. For the members of the appellate section, these events present a great opportunity to spend some time getting to know the justices and their staff. The section’s next social event will be the annual wine and cheese gathering in January 2014.

Mediation Coordinator Rene Ackerman, Justice Cole Blease, Brendon Ishikawa, Kathi Rutherdale

Justice Elena Duarte, Section Chair Scott Cameron

Conness Thompson, Linda Conrad

Presiding Justice Vance Raye, Carissa Beecham, Justice Ron Robie

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Cover Story

Judge Laurie Earl The SCBA’s 2013 Judge of the Year

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here is no manual on how to be a Presiding Judge.

There is no preprinted guide that sets forth all of the relevant policies and procedures, nor is there a single source of information that explains the local culture that forms the foundation of any court system at any specific moment in time. Given the dynamic, diverse, and at times tumultuous nature of judicial branch issues over the last few years, one might question why Sacramento’s Presiding Judge Laurie Earl wanted to take on the responsibilities of leading one of California’s largest trial courts. To that question, which many have indeed asked, Judge Earl smiles and responds, in a confident and unflinching style, that she saw an opportunity for Sacramento’s court to contribute to statewide discussions and problem-solving, particularly those related to the budget.

With three consecutive years of budget cuts to the judicial branch, Judge Earl knew that the challenges would be great. She also knew that with the rich and varied backgrounds of her colleagues on the Sacramento County Superior Court she could help lead our court and the branch to a more informed, responsive, and transparent court system, and she has done just that. Judge Earl has given of her time, energy and wisdom as our Presiding Judge and in doing so she has raised the bar of excellence to new heights.

Judge Earl grew up in the small Central Valley town of Modesto and lived just down the street from a family friend, retired federal Judge Frank C. Damrell. After high school, Judge Earl moved to the Bay Area to attend the University of California, Berkeley, and later put herself through Lincoln Law School. Judge Earl’s reputation for excellence developed through her years of service in the Sacramento County Public Defender’s Office, the Sacramento County District Attorney’s Office, and the Office of the Inspector General.

Through these offices, Judge Earl became accustomed to the fast pace of problem solving that comes with litigation and managing the competing interests of different parties.

Those skills have served her well as Presiding Judge.

Chief Justice Tani Cantil-Sakauye has known Judge Earl for at least the last 15 years, and she describes Judge Earl as

an incredible leader of people. Chief Justice CantilSakauye says Judge Earl was the right person at the right time to accomplish what could not have been done before in relation to court funding. As the Chair of the Trial Court Budget Working Group, Judge Earl facilitated a historical act in the development of a trial court funding methodology that will “result in a more transparent and equitable distribution of trial court funding among each of the 58 trial courts,” said Judge Earl. The Chief Justice notes that that Judge Earl was masterful in her guidance of the budget working group, which was comprised of a lot of talented people whose courts and offices were all operating in some form of crisis over the last couple of years.

Despite the divergent stressors and factors, Judge Earl was able to lead the working group in a focused, collegial, and deliberate manner. In recognition of her work and the respect she has gained from her fellow presiding judges from across the state, the Chief Justice recently appointed Judge Earl to serve as chair of the newly established Trial Court Budget Advisory Committee to the Judicial Council so that she can marshal the new funding plan from beginning to end.

Judge Earl’s capacity to delve into complicated issues, consider varying perspectives, and reach practical solutions was honed through her years representing the state and individual criminal defendants. Judge Earl knows that there is always another side to every issue. She values different points of view and, as long-time friend Anne Marie Schubert notes, Judge Earl is “passionate in her belief that everyone in the court system should be treated with dignity, fairness, and respect.” Before making a decision, Judge Earl believes that one should step back and listen, really listen to what is being said. Nancy Sheehan has worked with Judge Earl on the court’s Civil Advisory Committee, which provides input on how to improve and to streamline the civil litigation process here in Sacramento. Ms. Sheehan notes that Judge Earl “is a multi-dimensional thinker who always comes up with one more point of view after we Committee members think we have covered every aspect of

On August 22, 2013 the Judicial Council announced that Judge Earl has been awarded its highest honor for a jurist, the Ronald M. George Award for Judicial Excellence.

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By Judge Stacy Boulware Eurie

and her two teenage sons, Josh and Sam, have been patient and loving as Judge Earl came home late and had to field phone calls from judges, justices, and stakeholders from around the state during family vacations. While there have been endless issues to tend to and distractions pulling her in multiple directions, Judge Earl never missed one of the boys’ many athletic events, and when schedules got too hectic she was very thankful to be able to call her mom who would come up from Modesto to help out. Judge Earl knows how incredibly hard her work has been on her family, and she is looking forward to focusing more time on the family, especially with her oldest son now fully licensed and driving. “He hasn’t missed curfew yet, but I’m always nervous until he comes back home,” she says.

In addition to focusing on her own boys, Judge Earl is looking forward to continuing her partnership with Lincoln’s Dean, Jim Schiavenza, and devoting even more

Photography by Mark Long, Eleakis & Elder Photography

an issue. Judge Earl does all this with patience, a sense of humor, and an appreciation of the reality of not having enough funding to do what ideally should be done. As a member of an organization dedicated to the preservation of the right to trial by jury in civil cases [ABOTA], I am very pleased with Judge Earl’s willingness to listen to suggestions from the Advisory Committee and implement improvements that make the process better.”

The recognition that Judge Earl receives comes not only from those who work with her, but also from those who review her work. Presiding Justice Vance Raye of the Court of Appeal, Third Appellate District, was delighted to learn of Judge Earl’s award and praised Judge Earl for her work: “I have known and worked closely with Laurie Earl on various projects related to the judiciary. And, of course, like so many other judges within the Third District, she is known by her many judicial decisions that have been reviewed by

Judge Laurie Earl

our court. She is an outstanding judge and a remarkable person. Like her good friend, the Chief Justice, she has an exceptional ability to assess divergent viewpoints and find common ground or, at the very least, a place to begin a civil conversation. Her cool and calm demeanor calms frayed nerves, settles bruised egos, and encourages people to work together for the common good.”

Judge Earl has been tireless in her leadership, but the time and sacrifices Judge Earl has made for our community and our state were not made alone. Judge Earl’s family has given equally of their time and efforts supporting her during her tenure. Her partner of 21 years, Jody Cooperman,

time to the mentoring program she helped design for the court and the law school. The program has been very well received, and Judge Earl is eager to continue her involvement with the school. If that were not a enough to fill her plate back up, she is also looking forward to the opportunity to teach both law students and new judicial officers once her presiding judge tenure is complete. As her friend and colleague, it is inspiring to watch Judge Earl continue to strive for excellence and raise the bar for all of us.

Judge Stacy Boulware Eurie is the Presiding Judge of the Sacramento County Juvenile Court.

SPETEMBER/OCTOBER 2013 SACRAMENTO LAWYER

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Affiliate News

Sacramento’s St. Thomas More Society Update

On

By Heather Hoganson

June 26th, the St.Thomas More Society of Sacramento (STMS) celebrated its 27th year of service and ministry, offering fellowship for area attorneys and a forum for interfaith understanding. At its annual reception and year-end celebration, timed to coincide with the feast day of St. Thomas More, guest speaker Sacramento Superior Court Judge James Mize offered attendees a sequel to last year’s reflection on the legacy of St. Thomas More in the context of modern jurisprudence and the legal profession. This year’s talk was an inspiring call to serve our communities.

Also at the annual reception, STMS awarded the Father McDermott Award for Integrity to Sister Jeanne Felion. A member of the Sisters of Social Service, Sister Jeanne has served the Sacramento Northgate/Gardenland community for over 30 years through her work with the Stanford Settlement Neighborhood Center, of which she is Executive Director.

The Father McDermott Award for Integrity is named after the late Father Charles Sylvester McDermott, former Vicar for Theological and Canonical Affairs for the Diocese of Sacramento, and a founding member of STMS. Father Sylvester served as the group’s unofficial chaplain and advisor for many years. The first award was given in 2011 to Bishop Emeritus Francis A. Quinn, under whose auspices the Society was revived and encouraged. Last year, attorney Ronald Blubaugh received the award in recognition of his career of public service and, most recently, his advocacy and legal service with the Tommy Clinkenbeard Legal Clinic at Loaves and Fishes.

STMS generally meets on Second Wednesdays during the

STMS President Michael Terhorst presents award to Omar Bardales for Sister Jeanne Felion

Judge Mize and Professor Galves present and explain ethical conundrums to STMS and La Raza in January

Stanford Settlement Representatives Janet and Omar Bardales, Pat Pennisi, and Michele Mercado

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SACRAMENTO LAWYER SEPTEMBER/OCTOBER2013

Plauché Villeré, Victoria Cline, and Michael Terhorst

Affiliate News academic year, either for breakfast or lunch. Some meetings include Mass or a prayer service followed by discussion, while other meetings focus on an MCLE presentation. Local priests are invited to celebrate Mass with the group and then discuss topics of interest. Topics this past year included the Cristero Wars in Mexico, the 50th anniversary of Second Vatican Council, and retreats. STMS thanks Father Bernie Bush, S.J., Monsignor James Murphy, Father Michael Kiernan, Father Tom Piquado, S.J., Bishop Jaime Soto, and Monsignor Brendan O’Sullivan, for joining us for our September, November, December, February, March, and May gatherings, respectively.

In January, STMS co-sponsored the third annual Ethics & Civility luncheon with La Raza Lawyers of Sacramento, featuring Judge James Mize and Professor Fred Galves of Pacific McGeorge. The keen wit of these able presenters, coupled with their ability to relate real-world experiences to ethical ideals, kept everyone riveted.

For the past eight years, STMS has co-sponsored an annual ethics luncheon with the J. Reuben Clark Law Society and the Brigham Young University Management Society, which is always convivial and informative. In April, Professor John Sims of Pacific McGeorge expertly discussed the legal, moral, and ethical dilemmas arising out of the highly publicized and greatly discussed conduct of what legal memoranda called “enhanced interrogation techniques,” such as featured in the film Zero Dark Thirty.

Open to all, STMS offers a variety of events at an array of venues and times throughout the year. Upcoming STMS meetings include:

• Mass and breakfast on September 11 with Father Tom Piquado. Attorney and speaker Paul Starkey will discuss the “Voice of the Poor,” the advocacy arm of the St. Vincent de Paul Society and how charity towards the poor calls for justice through systemic change.

• Liturgy of the Hours Prayer service and breakfast on November 13 with Father Jerry Robinson, S.J..

• Mass and breakfast on December 11 with Father Art Wehr, S.J., and a special discussion regarding the Legion of Mary.

Also mark your calendars for the annual Red Mass for the Diocese of Sacramento, at 5:30 p.m. on October 2 at the Cathedral of the Blessed Sacrament.

The board members of STMS are Michael Terhorst (President), Bruce Timm (Vice President), Tom Frame (Treasurer), Victoria Cline (Memorials Director), Herb Bolz (SCBA Liaison), Heather Cline Hoganson (Recording Secretary), and Angela Lai and Plauché Villeré (Directors at Large). STMS invites interested persons to consider joining the executive team.

For questions or information about STMS, please email stms.sacramento@yahoo.com or call Herb Bolz at (530) 848-7252. To learn more about the Stanford Settlement Neighborhood Center visit its web page at http://stanfordsettlement.org.

Phil Birney, Judge James Mize, and Tom Frame

Diane Sabonis and Kiersta Perless

Sister Jeanne Felion, SSS, recipient of the 2013 Fr. McDermott Integrity Award

Mariel Covarrubias, Victoria Cline, and Stephanie Quinn

Heather Hoganson and Susanne George

Heather Cline Hoganson, a staff editor of this fine publication, is Recording Secretary of STMS. She is an attorney at the Department of Alcoholic Beverage Control and the SCBA Administrative Law Section Chair.

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SPETEMBER/OCTOBER 2013 SACRAMENTO LAWYER

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Section News

The Public Law Section Is Re-chartered and Re-launched

By Steven Wang and Heather Hoganson

A

re you interested in public agency practice or involved in working for the government? Do you want to join a group of public law practitioners where you can discuss current issues and “big picture” items with others in similar situations?

Well, the Public Law Section is for you!

The newly re-chartered Public Law Section focuses on those who work for cities, counties, state or federal government, and/or other public agencies, either directly as an employee or as outside counsel. Preparing

the revised charter was a group of approximately 20 attorneys -- private attorneys working for public entities along with attorneys working directly for Placer County, Sacramento County, the City of Sacramento, the City of Folsom, the City of Elk Grove, and the state.

The idea to re-charter came from Maggie Stern. “Being a public law attorney is tremendously rewarding, and my motivation for restarting the Public Law Section stems from a desire to connect with other likeminded public attorneys, to share ideas, to provide educational opportunities, and to foster the development of those entering the field.

However, one enthusiastic person does not a section make; I was overwhelmed by how excited other public law attorneys were about re-starting the Public Law Section, and how willing everyone is to actively participate in the work of the Section. Together, we will provide topical educational programming, as well as opportunities for public law attorneys in the Sacramento region to develop collegial relationships that bridge our varied practice areas.”

SCBA President Bruce Timm has made the following interim appointments pending elections this fall: • Chairperson: Maggie Stern (Kronick Moskovitz Tiedemann & Girard) • Vice-Chairperson: Steven Wang (City of Folsom) • Secretary: Jennifer Alves (City of Elk Grove) • Treasurer: Alexis Stevens (Somach Simmons & Dunn) • Past Chairperson: Harriet Steiner (Best Best & Krieger LLP) Continued on page 31

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Sacramento County Bar Association

100% Club

• Bartholomew & Wasznicky, LLP • Boutin Jones, Inc. • Cook Brown, LLP • Cuneo Black Ward & Missler • Diepenbrock Elkin, LLP • Downey Brand, LLP • Dreyer Babich Buccola Wood Campora, LLP • Felderstein Fitzgerald Willoughby & Pascuzzi, LLP • Goldsberry Freeman Guzman & Ditora, LLP • Gurnee & Daniels, LLP • Hefner Stark & Marois, LLP • Hiroshima Jacobs Roth & Lewis, A Law Corp.

• Jacobsen & McElroy, PC • Johnson Schachter & Lewis, A Prof. Law Corp.

• Kershaw, Cutter & Ratinoff, LLP • Klinedist, PC • Knox Lemmon & Anapolsky • Legacy Law Group • Locke Lord, LLP • Mastagni, Holstedt, Amick, Miller & Johnsen, A Prof. Corp.

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SACRAMENTO LAWYER SEPTEMBER/OCTOBER2013

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SEPTEMBER 10 - ABAS 25TH Annual Golf Tournament. Contact Jerilyn Paik at Jeri@jplawoffice.com.

SEPTEMBER 11 - St. Thomas More Society Mass & Breakfast with Fr. Tom Piquado, and speaker Paul Starkey discussing St. Vincent de Paul organization. Contact stms.sacramento@yahoo.com.

SEPTEMBER 12 - Bench-Bar Reception, 6:00pm, Tsakapoulos Library Galleria SEPTEMBER 19 - WLS 20th Annual Art fest at the California Museum. Contact Kim Garner at kkakavas@gmail.com or Elizabeth Dietzen Olsen at elizabethdietzen@yahoo.com.

SEPTEMBER 20 - Third District Court of Appeal Conference SEPTEMBER 25 - ABAS’ Annual Awards Dinner SEPTEMBER 26 - Joint Afternoon Seminar of Administrative Law Section and Labor & Employment Section at Blue Prynt. Contact SCBA@sacbar.org.

SEPTEMBER 27 - Wiley Manual Bar Legal Fusion. Contact June Powells-Mays at jpm4wmba@comcast.net.

OCTOBER 2 - VLSP Phoneathon OCTOBER 3 - MCLE Committee Meeting, noon, SCBA Office OCTOBER 17 - Unity Bar Dinner 2013; appearance by Hon. Cantil-Sakauye. Contact Patricia Reeves at ptreeves@sbcglobal.net.

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Ethics

The Ethical Lawyer, The Rules of Professional Conduct, “Professional Integrity in General”

T

his is the second in a series of articles on the Rules of Professional Conduct (“Rules”), with an emphasis on those rules which are most practitioner-perilous, “hot topic” rules, and those which are lesser known. Following the next article in this series – which will be published in the November/December issue – there will be a quiz on all three articles. You can take the quiz, send a very modest check to SCBA, and receive one hour of ethics MCLE credit.

In this article, I will discuss several of the rules set forth in Chapter 1, entitled “Professional Integrity in General.” Chapter 1 begins with rule 1-100, which tells us that the Rules are intended for the regulation of the “members of the State Bar through discipline[,]” that they “are not intended to create new civil causes of action[,]” and that nothing in the Rules “shall be deemed to create, augment, diminish, or eliminate any substantive legal duty of lawyers …”

Okay. But remember (from the first article of this series) that Day v.

Rosenthal (1985) 170 Cal.App.3d 1125 (widely cited over the years) applied the Rules to an attorney’s conduct in a civil context and held that, if an expert testifies contrary to the Rules, his/her testimony “is disregarded.” (Id. at p. 1147.) If you have any doubt about the Rules’ civil application, please read on.

Chapter 1 contains some wellknown rules, such as rule 1-300 [no aiding any person or entity in the unauthorized practice of law] and rule 1-310 [no partnership with a non-lawyer “if any of the activities of that partnership

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SACRAMENTO LAWYER SEPTEMBER/OCTOBER2013

consist of the practice of law”]. It also has some lesser known rules. For example, rule 1-311 proscribes the employment of disbarred, suspended, resigned, or involuntarily inactive lawyers without notice to the Bar and to clients and specifies what those suspended, etc. lawyers may and may not do.1 There was little to call rule 1-311 to our attention until last December, when the First District decided the case of People ex. rel. Herrera v. Stender (2012) 212 Cal.App.4th 614, review denied March 20, 2013 (“Stender”).

The decision created a stir.2 The Los Angeles County Bar Association sought unsuccessfully to have it depublished. It covers a lot of ground – much more than I will discuss here – and is worth reading.

Martin Guajardo was the sole shareholder of an immigration law practice when he resigned from the Bar with charges pending.

Christopher Stender, a lawyer not licensed to practice in California, acquired Guajardo’s practice, changed the firm name, and registered it with the Bar as a law corporation. In support of the plaintiff’s successful application for a preliminary injunction, a number of clients executed declarations that they continued to work with Guajardo after his resignation and believed he was still their lawyer.

The appellate court found sufficient evidence to uphold the preliminary injunction against Stender’s registered law corporation and Stender himself for violating rule 1-300, aiding and abetting the unauthorized practice of law. (Id. at pp. 638-640.) The court also held that a violation of the Rules

By Betsy S. Kimball

can be used to demonstrate a violation of Business and Professions Code section 17200 (“UCL”), and it treated an entity – a registered law corporation – as though it were a member of the State Bar. (Id. at pp. 632-635.)

A week before the Supreme Court denied review in Stender (and not mentioning that case), the Fourth District, Division 3, permitted an attorney to state a cause of action under the UCL against an online legal services provider based upon the unauthorized practice of law. (Law Offices of Mathew Higbee v. Expungement Assistance Services (2013) 214 Cal.App.4th 544.)

An unpublished State Bar Court, Hearing Department, opinion in a matter against a now-former Bakersfield lawyer also bears consideration here, In re Matter of Robert Eaton Dowd, no. 07-O-11955, filed May 29, 2011. Dowd had his assistant “sign his name as though it were his own signature to any document generated by his office.” (Id. at p. 2.) The documents included complaints, recorded lis pendens notices, at least nine sworn declarations in support of pleadings, and multiple proofs of service. Dowd was “caught” by a sharp-eyed opposing attorney who successfully challenged the admissibility of an assistant-signed declaration. Although Dowd is not an “unlicensed practice” case (but rather a case for misleading a court in violation of Business and Professions Code section 6068, subdivision (d)), it supports the admonition that now is the time to re-read rules 1-300, 1-310, and 1-311 and to re-examine how paralegals, law clerks, and clerical staff

are used in our practices.

Next issue: more from Chapter One of the Rules and an MCLE opportunity!

Betsy S. Kimball is a certified specialist in both appellate law and legal malpractice and is a partner in the Sacramento law firm of Kimball & Wilson, LLP. In addition to appellate matters, she focuses her practice on the representation of attorneys in ethics, disciplinary, and legal malpractice matters.

the contacts I need when intergovernmental issues arise.”

The Public Law Section aims to promote social and professional fellowship among its members, sponsor public law related educational activities (including opportunities to earn MCLE credits), to mentor new members, enhance the practical skills of fellow members, and to foster and support a desire to engage in public service in law students. Many current and former members of the section are

noted for their exemplary careers and are invaluable assets to any member.

We welcome and look forward to you joining a great group of public law practitioners in the newly re-chartered Public Law Section!

Steven Wang is the Assistant City Attorney for the City of Folsom.

Heather Hoganson is an attorney with the Department of Alcoholic Beverage Control and the current Chair of the Administrative Law Section.

1. Bar and client notification is not required if the disbarred, etc. lawyer is employed to perform plant or equipment maintenance, courier service, catering, reception, typing “or other similar support services.” (Rule 1311(E).)

2. See Dannelly, “Floodgates Open to Civil Claims against Attorneys and Law Firms,” 55-June Orange County Law. 40.

Public Law Section continued from page 24 • At-Large Members: Sheri Chapman (City of Sacramento), Linda Ackley (State of California, Dept. Water Resources), Heather Hoganson (State of California, Dept. of Alcoholic Beverage Control), and Krista Whitman (County of Sacramento).

Originally established in 19931994, the Public Law Section was designed to be a forum for discussion of public law issues. Past Presidents of the section include Geoffrey Graybill, Harriet Steiner, Marguerite Roth, Molly Arnold, Jim Mesnier, Tara Rufo, Rosemarie Benitez Ruggieri, Paul Starkey, and Matt Goldman. The section took a break after 2005 and was re-chartered by the Sacramento County Bar Association Board of Directors at its July 2013 meeting.

According to Past Chair Harriet Steiner, “The Public Law section was a great way to meet other public lawyers. I still stay in contact with those I met through section meetings years ago, and they are often exactly SPETEMBER/OCTOBER 2013 SACRAMENTO LAWYER

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Courthouse Steps

Alexis K. Stevens

Alexis K. Stevens recently joined the law firm of Somach Simmons & Dunn as an Associate. Alexis received her J.D. from Santa Clara University School of Law in 2008.

Prior to joining Somach Simmons & Dunn, she was an Associate in the Stockton office of Herum Crabtree. Alexis’ practice will focus on public agency law, water law, and general and environmental litigation.

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ADR Services . . . . . . . . . . . . . . . . . . . . . . . . . . . .Page 31 Admin Law/Labor & Employment Law Section . . . .Page 17 American Society of Appraisers . . . . . . . . . . . . . . . .Page 13 Barbara Como Reporting . . . . . . . . . . . . . . . . . . . . . .Page 29 Buzz Wiesenfeld . . . . . . . . . . . . . . . . . . . . . . . . .Page 16 Crowe Horwath . . . . . . . . . . . . . . . . . . . . . . . . .Page 35 Darrel W. Lewis . . . . . . . . . . . . . . . . . . . . . . . . .Page 23 DLA Piper . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Page 33 Downey Brand Attorneys LLP . . . . . . . . . . . . . . . . .Page 33 Eleakis & Elder Photography . . . . . . . . . . . . . . . . . .Page 33 Family Law Center . . . . . . . . . . . . . . . . . . . . . . .Page 32 Focused Decisions . . . . . . . . . . . . . . . . . . . . . . .Page 16 Hansen Kohls Sommer & Jacob LLP . . . . . . . . .Page 26 House Kitchen & Bar . . . . . . . . . . . . . . . . . . . . .Page 11 JAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Page 3 Jay-Allen Eisen Law . . . . . . . . . . . . . . . . . . . . . . .Page 7 Joe Genshlea Law and Mediation . . . . . . . . . . . . .Page 3 Ken Malovos . . . . . . . . . . . . . . . . . . . . . . . . . . .Page 34 Kronick Moskovitz Tiedemann & Girard . . . . . .Page 29 Mastagni, Holstedt. Amick, Miller & Johnsen . .Page 23 Milenko Deisgn . . . . . . . . . . . . . . . . . . . . . . . . .Page 34 Northern CA Collection Service . . . . . . . . . . . . .Page 25 Orrick . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Page 9, 23 Ramirez Arbitration & Mediation Services . . . .Page 24 Radoslovich | Krogh, PC . . . . . . . . . . . . . . . . . . . . . .Page 16 Rulands . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Page 32 SABA Reception . . . . . . . . . . . . . . . . . . . . . . . . .Page 27 Sacramento Law Library . . . . . . . . . . . . . . . . . . .Page 12 SCBA Bench Bar Reception . . . . . . . . . . . . . . . .Back Cover Thomson Reuters . . . . . . . . . . . . . . . . . . . . . . . . .Page 2 Ueltzen & Company . . . . . . . . . . . . . . . . . . . . .Page 29 Unity Bar Dinner . . . . . . . . . . . . . . . . . . . . . . . .Page 28 Wilner & O’Reilly Immigration Lawyers . . . . . . . . . . .Page 7 Women Lawyers of Sacramento . . . . . . . . . .Page 22, 26

SACRAMENTO LAWYER SEPTEMBER/OCTOBER2013

OFFICE AVAILABLE: Suitable for sole practitioner with focus on civil litigation, trusts, wills, taxation, real estate or business. The office is near Cal Expo, close to all courts, includes copier, janitorial services, alarm and wited phone system. It includes ample free parking and easy access for elderly and disabled clients. Rent is $625 per month. Three other attorneys are currently in the suite, each with more than 30 years experience in estate planning, elder law, civil litigation and taxation.

Telephone (916) 927-9001 kttyhughes@aol.com or (916) 927-7773 akbardel@aol.com.

OFFICES IMMEDIATELY AVAILABLE in garden court building across from county law library and one block from county courthouse. Suite for 5 – 7 attorney firm and separate individual office. Parking adjacent. Fully serviced.

Contact Mike Muljat or Zack Gossell at (916) 920-4400

SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

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

The Sacramento County Bar Association Invites You to Our Annual Bench-Bar Reception Thursday, September 12, 2013 • 6:00 - 9:00pm Tsakopoulos Library Galleria, 828 I Street, Sacramento, CA 95814

Honoring Laurie M. Earl as Judge of the Year Appetizers • Hosted Bar • Jazz Combo Tickets: $30 for SCBA members, $50 for non-members, $20 for law students. After Sept. 5th, all ticket prices increase by $5. RSVP to Reception@sacbar.org or call 564-3780 x 200

PROUDLY SPONSORED BY PLATINUM

GOLD

S I LV E R • Angelo, Kilday & Kilduff • Capitol City Trial Lawyers Association • Capitol Digital Document Solutions • Diepenbrock Elkin • Esquire Deposition Solutions • Law Office of Kevin J. Adamson • Leonard M. Friedman Bar Association • Littler Mendelson PC • McGeorge School of Law • Palmer Kazanjian Wohl Hodson • PORTER SCOTT • Randolph Cregger & Chalfant LLP • Renne Sloan Holtzman Sakai LLP | Public Law Group • Stoel Rives LLP • Wagner Kirkman Blaine Klomparens & Youmans

BRONZE • Asian/Pacific Bar Association of Sacramento • Barristers Club of Sacramento • Cook Brown LLP • Daniel Yamshon Arbitration and Mediation • Doug Rothschild Injury Lawyers • Feldhaus Court Reporting • Hefner Stark & Marois • Jacobsen & McElroy PC • Johnson Schachter & Lewis • La Raza Lawyers Association of Sacramento • Mennemeier, Glassman & Stroud LLP • Rivera & Associates • Sacramento Lawyers for the Equality of Gays and Lesbians • South Asian Bar Association of Sacramento • Officers and Directors of the St. Thomas More Society • Wiley Manuel Bar Association • Smith Zitano Law Firm • Ungerman Law Offices