Sacramento Lawyer Magazine JULY/AUGUST

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July/August 2016

La Raza Becomes the Cruz Reynoso Bar Association Cyber Insurance 101 Ethics and the Cloud

THIS WEEK’S ADVENTURE

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EDITOR’S MESSAGE Betsy S. Kimball is a certified

Cyber Alert!

specialist in legal malpractice law and the Editor of this publication.

by Betsy Kimball

I

have wanted to do this issue’s cover for a long time. Can you find yourself? If you are in the 2016 Legal Directory, you are on this cover.

In May 2016, the ABA Standing Committee on Lawyers Professional Liability published, Protecting against Cyber Threats: A Lawyer’s Guide to Choosing a Cyber-Liability Insurance Policy. I have ordered a copy to review (any volunteers?). By coincidence, we had planned this issue with a couple of cyber-themed articles to convey some important information (or possibly to scare the hell out of you). There is no “this doesn’t apply to me.” Yes, it does.

We all face cyber threats, and our increasingly cyber-reliant law practices bring us ever expanding ethical obligations. Thanks to Larry Doyle (on ethics), page 16, and to Rian Jorgensen (on cyber insurance), page 14.

We are deep into the dog days of summer—and an election year. As lawyers, we are the front-line protectors of our constitutional and civil rights.

We take those rights for granted at our peril. I commend to your reading Doug Potts’ article on the program Justice Richard Fybel recently presented, “How Law and Lawyers Helped Implement the Nazi Agenda.” Page 20. Justice Fybel is a leader on issues of legal ethics

and serves as Chair of the California Supreme Court’s Advisory Committee on the Code of Judicial Ethics. His presentation is very thought-provoking.

This issue also contains Andy Stroud’s review of Joe Genshlea’s intriguing book, N is for Knuckleheads, page 32. And, back by popular demand, we have the Ad Hocs’ review of My Sister’s Cafe, an eatery run by that great non-profit, My Sister’s House, page 30.

I am personally very pleased to have one of the SCBA affiliates back in these pages after a long absence. See page 10. (Relying heavily on Google translator) I say bienvenida y larga vida a la asociación de abogados Cruz Reynoso.

As I write this, it is Memorial Day weekend, and the old Crosby Stills & Nash song, “Teach Your Children,” is playing in my head. Kudos to Operation Protect and Defend and to the Florin and McClatchy Law Academies for the work they do in teaching our children. See pages 12 and 22. All three of those programs could use help— meaning your time. Send me an email, and I will make you an introduction. If Memorial Day teaches us anything, it is that we owe those who sacrificed before us the obligation to “pay it forward” to those who are coming up.

The SCBA notes with regret the passing of Robert C. Schleh, President of the SCBA in 1980.

(1934-2016)

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SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

EDITOR-IN-CHIEF Betsy S. Kimball Editor@sacbar.org ASSOCIATE EDITOR Ellen Arabian-Lee STAFF EDITORS Bryan Hawkins, Heather Cline Hoganson, Maureen Onyeagbako MAGAZINE COMMITTEE Betsy S. Kimball, Samson R. Elsbernd, David Graulich, Coral Henning, Heather Cline Hoganson, Yoshinori H.T. Himel CREATIVE DIRECTOR Mary J. Burroughs (916) 564-3780 - mburroughs@sacbar.org PRODUCTION DESIGN Milenko Vlajsavljevic ADVERTISING SALES EVENTS - MEMBER CLASSIFIED ADS (916) 564-3780 - scba@sacbar.org SCBA OFFICERS Heather Cline Hoganson - President Sabrina Thomas - 1st Vice President Sil Reggiardo - 2nd Vice President Jason Jasmine - Secretary/Treasurer SCBA EXECUTIVE DIRECTOR Mary J. Burroughs - mburroughs@sacbar.org

Sacramento Lawyer (USPS 0981-300) is published bi-monthly by the Sacramento County Bar Association, 425 University Ave., Suite 120, 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, 425 University Ave., Suite 120, Sacramento, CA 95825. Copyright 2016 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.

CONTENTS SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

JULY / AUGUST 2016 VOLUME 117, NUMBER 4

FEATURE ARTICLES 14 Cyber Insurance 101 for Small and Mid-Sized Law Firms 16 Cyber Challenges—Confidentiality and the Cloud 20 How Law and Lawyers Helped Implement the Nazi Agenda SCBA EVENTS 8

Fore! The Fourth Annual SCBA Golf Tournament Rocked

SUPPORTED ORGANIZATIONS 22 Sacramento Law Foundation Funds Florin LAW Academy Summer Institute in Energy and Policy

20

EVENTS 12 Operation Protect and Defend Law Day Dinner Celebration 2016 34 CLA Celebrates Its Annual Artistic License Awards SECTION AND AFFILIATE NEWS 10 Justice Cruz Reynoso: The Dawn of Justice for California’s Latino Population

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24 The Public Law Section Delivers Legal Education in Myriad Areas 28 St. Thomas More Society Updates BARRISTERS’ DIVISION 26 Barristers’ Club Update VLSP 18 VLSP Celebrates 35 Years of Giving

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RESTAURANT REVIEW 30 My Sister’s Café – Good Food for a Good Cause BOOK REVIEW 32 Joe Genshlea - “N Is for Knuckleheads”

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DEPARTMENTS 4 Editor’s Message 6

President’s Message

Sacramento Lawyer magazine 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 the SCBA at 916-564-3780 for deadline information, fax 916-564-3787, or email mburroughs@sacbar.org. Web page: www.sacbar.org. Caveat: Articles and other work submitted to Sacramento Lawyer magazine 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.

COVER

Collage created using SCBA member photos

www.sacbar.org | July/August 2016 | SACRAMENTO LAWYER

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PRESIDENT’S MESSAGE Heather Cline Hoganson

Heating up in Sacramento

President, Sacramento County Bar Association

by Heather Cline Hoganson

As

part of the Food from the Bar initiative this Spring, the Board of Directors held its May Board meeting at the Sacramento Food Bank’s Community Building in Oak Park, and the Shakers held the food drive after-party at the Community Garden. Along with barrels of food and cash donations, teams from SCBA also volunteered to sort food at the Food Bank’s warehouse. Those of you who have “liked” the SCBA Facebook page saw some of the photos. Thanks to the Shakers Division and Food Drive Coordinator Pat Sturdevant for set-

ting this up, and thank YOU for donating food, dollars, and time. We are helping our community thrive. If you would like to join the Shakers Division in planning future outreach activities, please contact Jonathan Hayes.

You may have noticed that I mention people to contact in my messages.

My favorite go-to is the SCBA’s Legal Directory, which just reissued recently.

A big shout-out to the bar staff, who have taken this publication in-house and raised the bar. Have you opened yours? Flip to your name. Do you have a picture – a RECENT picture? It

is now totally easy to access your member profile on the SCBA home page (sacbar.org) and upload a photo. (If it has been awhile since you’ve taken one, keep your eyes open for the next SCBA Picture Day, expected to happen this fall.) You can also update other information on your profile, such as languages spoken and areas of practice.

For our SCBA members who are also attorneys or administrative law judges employed by the State of California and covered by the CASE contract, the SCBA Board has sent a letter urging the CASE bargaining team and

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Total reimbursement for “any local or corrections OK with specialty bar” has been at $100 for 6) 564-3787 JAY-ALLEN EISEN ten years (see section 13.7(D) of the Burroughs C I V I L A P P E L L AT E + W R I T + M OT I O N P R A C T I C E bar.org MOU). If you are covered by the State Certified Appellate Law Specialist Unit 2 contract and have not requested State Bar of California, Board of Legal Specialization any reimbursement, this SIGN is a reminder DATE to get your travel expense claims in as Best Lawyers in America Northern California Super Lawyers soon as possible. Every little bit helps.

Past Chair, California State Bar Standing Committee on Appellate Courts As the summer heats up, so do Past President, California Academy of Appellate Courts court plans to move the law & moFellow, American Academy of Appellate Lawyers tion and civil settlements departments

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to the Hall of Justice (across the street from the Federal Courthouse, on 6th between H and J). If you are expecting to appear in Departments 53, 54, or 59, watch your court notices for any changes in location.

Over 130 Reported Decisions, including:

Bock v. Calif. Capital Loans 216 Cal. App.4th 264 (2013) (Real estate loans) Collins v. Sutter Mem. Hosp. 190 Cal. App.4th 1 (2011) (Summary judgment, new trial) McAdams v. Monier, Inc., 182 Cal. App.4th 174 (2010) (Consumer Class Action) Katiuzhinsky v. Perry, 152 Cal.App.4th 1288 (2007) (Medical Damages) Hahn v. Mirda, 147 Cal.App.4th 740 (2007) (Medical Malpractice, Loss Of Consortium)

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The SCBA notes with regret the passing Please fax back to (916) 564-3787 or email back to Deb Roberts at droberts@sacba of Steve Belzer, past Chair of the ADR Section.

Thank you!

www.sacbar.org | July August 2016 | SACRAMENTO LAWYER

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Heather Cline Hoganson

SCBA EVENTS

FORE!

is the 2016 President of the SCBA. She may be contacted at Heather.Hoganson@abc.ca.gov.

The Fourth Annual SCBA Golf Tournament Rocked

by Heather Cline Hoganson

M

ay 20, 2016: Over 80 people came to play and enjoy dinner at Haggin Oaks for the SCBA’s Fourth Annual Golf Tournament. At registration, orange polo shirts and hats were included with a goodie bag of items and lunch.

Throughout the course, sponsors provided a variety of items, drinks, and raffles, starting with massages and margaritas through golf towels, Ruth Chris dinner drawings, lip balm, and bottles of water or glasses of beer. I was one of the witnesses for the Hole in One challenge and got to see some very fine drives… and duck for a few rogue slices. Although a brief but sudden downpour ended a few rounds early, spirits were not dampened.

Under the Pavilion Tent, cocktail hour presented opportunities to chat, bid on silent auction items, buy door prize tickets, and watch the leaderboard. A buffet

dinner was complemented by the Res Ipsa Loquitor band (featured in this publication’s March/April 2015 issue), led by Bob Bale of Dreyer Babich Buccola Wood Campora, LLP. Sacramento Lawyer’s Editor-in-Chief Betsy Kimball even joined to harmonize with the band on BrownEyed Girl.

Many thanks go to Event Chair Mark Velasquez, to the committee and volunteers (including Russ Carlson, Peter Kyung, Jon Ellison, and Bill Schuetz), and to Executive Director Mary Burroughs and staff members Martha Fenchen, Milenko Vlajsavljevic, Abner Collazo, Deb Roberts, and Ali Anderson.

Thanks also to all the sponsors, golfers, diners, purchasers of door prize tickets, and bidders at the silent auction. We will see you next year!

SACRAMENTO COUNTY BAR ASSOCIATION

Golf Tournament SHIRT SPONSOR Phillips Building Consultants HAT SPONSORS Hutchinson Insurance Western Health Advantage PUTTING GREEN SPONSORS Crowe Horwath LLP Hope Wellness Institute

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SPIRITS HOLE SPONSORS Esquire Deposition Solutions, LLC First Citizens Bank Litigation Services Northern California Collection Service, Inc Phillips Legal Service DRIVING RANGE SPONSOR Voluntary Legal Services Program

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THANK YOU TO OUR SPONSORS HOLE SPONSORS Court Call Downey Brand LLP Dunnigan Realtors Guild Mortage Company Lincoln Law School Dana Meeks Consulting Palmer Kazanjian Wohl Hodson LLP Storz Fiduciary Services U.S. Legal Support, Inc Velocity Solar

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George Acero is a partner at Gordon Rees Scully Mansukhani and President of the CRBA. He can be contacted at gacero@gordonrees.com.

SECTIONS & AFFILIATES

Photos by David Carpio

Justice Cruz Reynoso: The Dawn of Justice for California’s Latino Population

Justice Reynoso is presented a resolution from the California Latino Legislative Caucus— from left to right: CRBA Board Member Luis Cespedes, Cesar Anda, Retired California Supreme Court Justice Cruz Reynoso, District 6 Councilmember Eric Guerra, Sacramento County Supervisor Phil Serna, & Mayor Elect Darrell Steinberg

T

he Cruz Reynoso Bar Association (CRBA) held an inaugural reception at Sacramento City Hall honoring the group’s namesake and former California Supreme Court Justice Cruz Reynoso. In attendance were many familiar faces from the Sacramento legal and political landscape, and all were in agreement that no person is more deserving of recognition for his longtime contributions to social justice and civil rights than Justice Reynoso. Amid the sounds of live traditional folkloric music from Mexico interspersed with speeches from prominent Latino voices from the Sacramento and California community, attendees were given an opportunity to witness history in the

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making as the event also commemorated the name change of the La Raza Lawyers Association of Sacramento to the Cruz Reynoso Bar Association.

Brian López is an attorney with Carson & Kyung, A Law Corporation, and the Secretary of the CRBA. He can be contacted at briananthonylopez@gmail.com

by George Acero and Brian López

During his reception speech, Justice Reynoso made reference to his “justice bone.” Like the tingling of Spiderman’s “spider sense” when danger arises, whenever Justice Reynoso saw injustice, his “justice bone” would resonate and he would spring into action. Justice Reynoso recalled the first time he felt his “justice bone” resonate, at the young age of 10. At that time, the post office refused to deliver mail to the rural homes of the predominantly Latino farmworkers in the small town of La Habra, California. However, the postal service began delivery to a nearby wealthy family. He circulated a petition and wrote a letter to the U.S. Postmaster in Washington, D.C. to express his thoughts on the unfairness of the situation. After a few exchanges, the post office began the delivery of the mail to the individual homes.

Mariachi Los Gallos, bringing some liveliness to the festivities

SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

SECTIONS & AFFILIATES

Sacramento Superior Court Judge Steven Gevercer and Dean Kevin Johnson chatting with CRBA President George Acero and CRBA Treasurer Lance Martin

What Justice Reynoso accomplished at 10 years old was remarkable. But he did not stop there. He served as Assistant Chief, Fair Employment Practices Commission; Staff Secretary, Governor’s Office; Associate General Counsel, Equal Employment Opportunities Commission; and Director of California Rural Legal Assistance. Justice Reynoso became the first Latino appointed to the Third District Court of Appeal (1976) and

the California Supreme Court (1982).

He is recognized nationally for his leadership in civil rights, immigration and refugee policy, and legal services for the poor. Among his many achievements, he was awarded the Presidential Medal of Freedom by President Bill Clinton in 2000 and served on the U.S. Commission on Civil Rights and Select Commission on Immigration and Human Rights. Justice Reynoso has been on the faculty of UCLA School of

Sacramento Superior Court Judge Emily Vasquez enjoys the festivities with others including Sacramento Superior Court Presiding Judge Kevin Culhane

Law, University of New Mexico Law School, and is currently teaching at UC Davis School of Law. CRBA is currently going through a rebirth—first renaming the organization after Justice Reynoso. The name change sets the tone of what the organization should be about: to strive to make a difference in Sacramento’s community, both as lawyers and as human beings. Recently, CRBA joined other local bar associations and wrote a well-received letter advocating for the building of a new Sacramento County courthouse. Other community projects in process include offering assistance at events for voter registration, immigration legal assistance, and legal education at public schools.

The 2016 CRBA Board of Directors consists of President George Acero (Gordon Rees Scully Mansukhani), Vice President Linda González (Attorney General’s office), Secretary Brian López (Carson & Kyung, A Law Corporation), Treasurer Lance Martin (Kennaday Leavitt PC), Luis Cespedes (Luis A. Cespedes Law Offices), Jesse Rivera (Rivera & Associates), and Juan Cornejo (McClatchy Corporation).

Retired Supreme Court Justice Cruz Reynoso and retired Presiding Justice of the Court of Appeal, Third Appellate District, Arthur Scotland enjoy the humor of one of the event’s presenters www.sacbar.org | July August 2016 | SACRAMENTO LAWYER

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EVENTS

Operation Protect and Defend Law Day Dinner Celebration 2016

Robyn K. Riedel is a Deputy District Attorney in San Joaquin County and a member of the OPD dinner committee.

She may be contacted at robyn.riedel@sjcda.org.

Photos by Kevin Graft

by Robyn K. Riedel

OPD Executive Committee and Volunteers: (Top Row, left to right) Hon. Frank C. Damrell, Jr. (Ret.), Hon. Kimberly Mueller, Ellen Taylor, Ann Kanter, Hon. Elena J. Duarte, Alf W. Brandt, Hon. Ron B. Robie, Hon. William J. Murray, Jr., Chi Soo Kim, Deborah Barnes, Robyn K. Riedel, Scott Wyckoff; (Bottom Row, left to right) Kelley Lincoln, Hon. Troy Nunley, Karli Eisenberg, Hon. Jennifer Rockwell, Carmen-Nicole Cox, Kathi Finnerty, Adriana Cervantes, Emma Siverson, & Joseph Cress

Operation Protect and Defend is a program by lawyers and judges committed to civic education in public schools, reflecting the wisdom of Supreme Court Justice Anthony M. Kennedy that “Democracy must be taught.”

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S

ince 2001, Operation Protect & Defend (OPD) has hosted its Annual Law Day Dinner. In May, with over 250 people in attendance, OPD honored over 30 students from 12 local high schools for their achievements in OPD’s classroom dialogues and Story of America Essay Contest and Modern Masters of Art Contest. The dinner is the culmination of OPD’s year-long effort and provides students an opportunity to interact with judges and attorneys from the Sacramento region.

OPD’s Executive Chair, Deborah Barnes, welcomed all in attendance and recognized the importance of instilling civics in our high school stu-

SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

Justice Goodwin Liu, California Supreme Court and Keynote Speaker

dents. Master of Ceremonies Justice Elena J. Duarte and Ann Kanter, Director of Modern Masters of America contest, presented the awards. Justice

EVENTS

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Ann Kanter and Joel Smith, Art Teacher at Luther Burbank High School

Duarte also introduced the evening’s keynote speaker California Supreme Court Associate Justice Goodwin Liu. Judge Frank C. Damrell Jr. (Ret.), a founder of OPD, provided closing remarks, which included a look back at the history of OPD. Judge Damrell introduced the previous OPD Executive Chairs, and incoming Executive Chair, Kelley Lincoln.

The event was co-sponsored by Sacramento County Bar Association and the Federal Bar Association. The strong support of the Sacramento legal community—bench and bar— continues to make OPD’s Annual Law Day Dinner a huge success, especially for the students who are engaged in civics education.

Ann Kanter and Deevon Hegwood, Modern Masters of America Silver Place Awardee www.sacbar.org | July August 2016 | SACRAMENTO LAWYER

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FEATURE ARTICLE

Cyber Insurance 101 for Small and Mid-Sized Law Firms

Rian Jorgensen is an insurance coverage attorney in the Executive Liability Practice of HUB International’s San Francisco office. He can be contacted at rian.jorgensen@hubinternational.com.

by Rian Jorgensen

S

uppose tomorrow you come to work, fire up your comThe main benefit of cyber insurance is to puter, and instead of getting your usual screen asking have experts teed up to address the problem for log-in credentials, an ominous message appears advisimmediately ing that your firm’s computer system has been hacked. The Whether the first notice of claim is the message from “ransom note” states that if a certain amount of Bitcoin is a hacker, a visit from the FBI (surprisingly common), or forwarded to the hacker’s account in 48 hours, you can have advice from your IT professionals that they think someyour system back. If the demand is not met, the hacker thing with the system is amiss, the problem needs to be promises to wipe out any and all of your records, essentially addressed correctly, and as soon as possible. There is burning your “computer house” to the ground. What do you simply not the time to perform the traditional due dilido? With apologies to the Ghostbusters, who you gonna call? gence that most of us typically undertake when needing The first insurance for “cyber loss” was written in the to hire a professional in an unfamiliar area. Should a law mid 1990’s. Cyber policies have come a long way since then, firm be hired? Which one? Should we let our IT guy or but the forms still vary widely. This industry might propgal address the problem? They say erly be considered to be in its adolesthey’ve got a buddy who deals with cence—still a long way from seeing these issues all the time, should we “standardized” policies such as those As an unpleasant thought turn it over to them? (To confirm, the that we all purchase to insure loss for unequivocal answers to these last two fire or theft. That said, there are some experiment, imagine trying questions are “No”). basic precepts that law firms should be The insurance companies that to function and provide aware of as they weigh whether to purwrite this coverage have, by now, seen chase this coverage. competent legal services thousands of cyber claim scenarios.

They have well established playbooks, to your clients without Typically, cyber losses will and vetted professionals on speed-dinot be covered by other access to any firm e-mails al who know what they are doing, can ask the right questions, and bring the insurance or computer records. correct resources to bear to properly Your professional liability policy address the claim, such as: will respond to allegations of malpractice and breach of fiduciary duty, but • Forensic IT expert “swat teams” damages from these causes of action are rarely alleged in to contain and fix the problem to the extent possible “pure” data breach situations. If a client’s confidential infor(including negotiating with the hackers and potentially mation has been compromised, the client will not be happy, paying the “ransom”–dealing in Bitcoins takes expertise but it does not necessarily follow that the client has a viable all on its own). case for malpractice. In many cyber-loss situations (such as • Legal advice on potential breach notification obligations that described in our opening scenario), it is not even certain to clients whose private data may have been comproif client information has even been accessed. mised (each of the 50 states has its own requirements).

Similarly, general liability (“GL”) and property policies exclude these “ephemeral” types of cyber losses. These traditional policies are simply not sold by insurers to address cyber claims–trying to secure coverage for a cyber loss under a GL or property policy is certainly akin to trying to pound a square peg into the proverbial round hole.

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SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

• Public relations consultants.

Qualified professionals in these disciplines are rare, and not inexpensive. Having an insurance policy in place to facilitate access to them on a turn-key basis is incredibly valuable.

FEATURE ARTICLE Law firms have unique “first party” cyber exposures that need to be insured If a small “main street” retailer’s computer system gets hacked, it can limp along to some degree. A wine shop can still sell its wine, an appliance store can still sell plumbing fixtures, and a grocery store can still ring up sales for groceries, adding up sales by hand if necessary.

The equation is fundamentally different for a law firm (along with most other “white collar” professional firms).

Without access to computer systems, a lawyer cannot access the data he or she needs in order to work a billable hour. As an unpleasant thought experiment, imagine trying to function and provide competent legal services to your clients without access to any firm e-mails or computer records.

Lost billable hours resulting from a hack can quickly add up to tens (and in some cases hundreds) of thousands of dollars.

A decent cyber policy will provide coverage for this “business interruption” loss (which is pointedly excluded from property policies that will otherwise typically respond in the event of a “standard” cause of loss, such as water damage or fire).

A well-constructed cyber policy with a reputable insurer (providing adequate limits of liability for a small law firm), can typically be placed for less than $10,000. If such coverage

is purchased, it should be structured to meet the law firm’s needs (as opposed to accepting standardized off-the-shelf cyber endorsements from the GL or property insurer).

Editor’s note. Do you think that this article does not apply to your practice? Your firm is too small? Your data is not worth hacking? Think again. A recent CNA report, based upon its claims data, describes the vulnerability of law firms to internal data breaches. Lost or stolen laptops, tablets, and phones are the most frequent cause of a data breach claim. BYOD practices that enable lawyers to access the firm’s network and download proprietary or privileged data on, for example, personal cellphones without password protection, encryption, or remote data wiping capability creates a significant risk. Staff can inadvertently cause a problem (“I just knew I shouldn’t have opened that attachment”). And then there is the “rogue (former) employee” problem—data stolen by uploading it to Dropbox, etc. or the firm’s server sabotaged on the way out the door. See CNA, Safe and Secure: Cyber Liability Practices for Law Firms, March 2015, at https://www.cna.com/web/wcm/connect/61aec549ac28-457b-8626-aa791c782459/Safe_Secure_Cyber_Security_Practices.pdf?MOD=AJPERES.

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ETHICS

Larry Doyle is a Sacramento-based attorney,

Confidentiality and the Cloud

lobbyist and mediator, and a member of the State Bar’s Standing Committee on Professional Responsibility and Conduct and the Association of Professional Responsibility Lawyers. He can be contacted at larry@larrydoylelaw.com.

by Larry Doyle

C

alifornia has the toughest lawyer-client confidentiality standards in the United States—and quite possibly the world. Business and Professions Code §6068(e)(1)—reinforced by Rule of Professional Conduct 3-100—provides that it is the duty of an attorney to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client” without that client’s informed written consent. That language leaves very little wiggle room.

At the same time, we live in the age of digital communication, where data breaches are part of daily life. In 2015, for example, California’s Attorney General’s office received reports on 178 data breaches involving over 24 million records, victimizing nearly three in five Californians. Similar examples from around the country and world make clear that the concept of “information security” is becoming an oxymoron.

So there we attorneys are, faced with an incredibly high confidentiality standard and the practical impossibility of protecting the absolute confidentiality of client confidences if modern means of communication or data storage are utilized. What can we do?

The answer involves the exercise of due diligence and common sense. Even though California is the only state that has not adopted a variation of the ABA Model Rules of Professional Conduct, our rules (CRPC 1-100) and case law (City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 852) provide that in the absence of on-point California authority and conflicting state public policy, the Model Rules may serve as guidelines. In this case the exception to the duty of confidentiality (Model Rule 1.6) for disclosure “impliedly authorized in order to carry out the representation” clearly applies.

As noted in Formal Opinion 2010-179 issued by the State Bar’s Committee on Professional Responsibility and Conduct (COPRAC), the absence of this language from California’s statute and rule “does not prohibit an attorney from using postal or courier services, telephone lines, or other modes of communication beyond face-to-face meetings” to achieve that goal.

The committee recognized that no means of communication is completely secure, and those means that are most secure (e.g., communication only by “snail mail”) may be far too restrictive or slow to make effective representation possible. Therefore, the attorney’s duty is to ensure that the technology used to communicate and store information is as secure as possible while still

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SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

permitting the attorney to provide effective representation.

The determination of what technology meets these standards is tied to the attorney’s duty of competence, which is set forth in California Rule of Professional Conduct 3-110.

The rule provides that a California lawyer “shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence,” applying the diligence, learning and skill, and ability “reasonably necessary for the performance of such service.” Again, while California’s rules do not specifically require an attorney to keep abreast of important technological developments (unlike the ABA Model Rules), that duty can be inferred from the circumstances. As COPRAC noted in its Formal Opinion 2012-184, which dealt with many of the same issues in the context of a Virtual Law Office, “while [an] Attorney is not required to become a technology expert in order to comply with her duty of confidentiality and competence, [she] does owe her clients a duty to have a basic understanding of the protections afforded by the technology she uses in her practice.” If the attorney does not have sufficient knowledge, she must either obtain it or consult with someone who has it—e.g., an outside savant in information technology.

Opinion 2010-179 identified certain specific factors an attorney should consider before using a specific technology: a) The attorney’s ability to assess the level of security afforded by the technology, including: 1. Consideration of how the particular technology differs from other media use. Ethics opinions once held that use of Internet email violates confidentiality obligations, but now universally conclude that use of unencrypted Internet email is permitted without express client consent. (ABA Formal Opn. No. 99-413; LA County Bar Assn. Formal Opn. No. 514 (2005).)

2. Whether reasonable precautions may be taken when using the technology to increase the level of security. The circumstances under which a message is sent (e.g., from an office server behind a firewall as opposed to using public WiFi at a local coffee shop) can impact security greatly, and an attorney may need to employ measures (e.g., encryption, firewall) to guard against data breaches in the latter case. Likewise, employing password protection on mobile devices, such as laptops and smartphones, is essential to guarding against access to confidential client information by a third party if the device is lost, stolen or left unattended.

FEATURE ARTICLE 3. Limitations on who is permitted to monitor the use of the technology, to what extent and on what grounds.

If a license to use certain software or a technology service requires the attorney to grant third party access to information communicated or stored, the attorney should confirm that the terms of the requirement or authorization do not permit the third party to disclose confidential client information to others or use such information for any purpose beyond ensuring the functionality of the software or that the technology is not being used for an improper purpose. b) Legal ramifications to third parties of intercepting, accessing or exceeding authorized use of another person’s electronic information. The fact that a third party could be subject to criminal charges or civil claims for intercepting, accessing, or engaging in unauthorized use of confidential client information favors an expectation of privacy with respect to a particular technology. c) The degree of sensitivity of the information. The greater the sensitivity of the information, the less risk an attorney should take with technology. d) Possible impact on the client of an inadvertent disclosure of privileged or confidential information or work product, including possible waiver of the privileges.

Even though Evidence Code §917(b) clearly provides

CONGRATULATIONS Hon. Michael G. Virga

that an otherwise confidential communication “does not lose its privileged character for the sole reason that it is communicated by electronic means or because persons involved in the delivery, facilitation, or storage of electronic communication may have access to the content of the communication,” Opinion 2010-179 notes that “it is possible that, if a particular technology lacks essential security features, use of such a technology could be deemed to have waived these protections.” e) The urgency of the situation. The more urgent, the greater the justification for using less secure technology. f) Client instructions and circumstances. If a client has instructed an attorney not to use certain technology, it should not be used.

Similarly, Opinion 2012-184 identifies factors an attorney should consider in selecting a technology vendor, including the vendor’s credentials, policies and procedures on data security, and whether client information in the cloud is transmitted across jurisdictional boundaries, raising potential legal issues. Other factors include terms of service, and the ability of the attorney to supervise (since the attorney is responsible under CRPC 3-110).

Most important, the attorney should periodically reassess the technology used. Technology changes, as do vendors, and what may have been perfectly acceptable a couple of years ago may now not meet the standards.

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Judicate West congratulates Judge Virga on his retirement after more than 23 years of distinguished service for the Sacramento Superior Court as well as for receiving the “Judge of the Year” award from the Sacramento Valley Chapter of ABOTA.

www.judicatewest.com | (800) 488-8805 DOWNTOWN LOS ANGELES SAN DIEGO SANTA ANA SAN FRANCISCO WEST LOS ANGELES www.sacbar.org | July August 2016 | SACRAMENTO LAWYER

17

VLSP

Vicki Jacobs is the Managing Attorney of the Voluntary Legal Services Program.

She may be contacted at vjacobs@vlsp.org.

Judge Mize

Gary Smith

V

Heather Tiffee

olunteers, members of the bench, donors, and other supporters of the Voluntary Legal Services Program gathered on June 8th to celebrate our 35th anniversary of providing free legal services to the indigent of the Sacramento region. The event was held at the Casa Garden Restaurant, which benefits the Sacramento Children’s Home, and allowed one nonprofit organization to help another keep up its good work.

VLSP was the brainchild of local attorneys Tom Eres (then SCBA President) and (now) Judge Jim Mize. As a regular volunteer at Legal Services of Northern California, Judge Mize saw first-hand the need for further legal

Justice Ron Robie and Vicki Jacobs

18

Mark Eggleston

services for the poor. In 1981, Judge Mize was member of the committee that oversaw the Attorney Referral Service (now Lawyer Referral and Information Service) of the SCBA. That committee felt that lawyers who received referrals from the ARS should give back to the community in exchange for receiving the referrals. To provide further support for increased legal services for the poor, the solution was to require ARS attorneys to take on legal aid cases.

The Attorney Referral Services of the SCBA and Legal Services of Northern California (“LSNC”) then formed the Voluntary Legal Services Committee, and VLSP was born. 35 years later, the SCBA

Galen Shimoda

Mary DuBose

and LSNC continue to jointly sponsor VLSP, and the number of volunteers has grown from an initial 50 to 496.

VLSP started with one part-time Program Coordinator, June Black, who referred out cases one at a time to our volunteers. Over time, even with the downturn in the economy starting in 2007, VLSP has grown and has five employees. We still refer cases out to volunteers for direct representation, but our volunteers also assist self-represented individuals at one of VLSP’s four clinics.

Thanks to all who have supported VLSP over the years. We look forward to many more years of service, with your help, to the Sacramento community.

Judge Jim Mize, Justice Art Scotland (ret.), Heather Cline Hoganson, Sabrina Thomas, & Judge Kevin Culhane

SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

by Vicki Jacobs

Jesse Christian Hendricks and a young fan

Alan R. Stachowitz-Legal Services of Northern California

VLSP Celebrates 35 Years of Giving

The South Asian Bar Association (SABA) of Sacramento proudly invites you to:

The 9th Annual Diversity Law Student Reception

Meet local judges and attorneys and learn about practicing law in our region. Casual attire, everyone is welcome! This event is free of charge.

Saturday, September 17th, 2016 1:00- 4:00 p.m.

3249 Conquistador Way, Davis, CA (Home of Shama Mesiwala) Please RSVP by September 12th to shama.mesiwala@jud.ca.gov wď ˇ (530) 747-0642

www.sacbar.org | July August 2016 | SACRAMENTO LAWYER

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FEATURE ARTICLE

Douglas Potts is a senior appellate attorney at the California Court of Appeal, Third Appellate District.

How Law and Lawyers Helped Implement the Nazi Agenda

by Douglas Potts

A

ddressing a sobering topic, Associate Justice Richard D. Fybel of the Fourth District Court of Appeal recently explained to a group of Sacramento attorneys and judges how the judiciary and bar in Nazi Germany facilitated Hitler’s elimination of civil rights for all Jews. The courts used law and legal reasoning to eliminate the regime’s enemies and further its racist designs.

Justice Fybel reviewed this tragic history in remarks entitled “From the Absence of Judicial Ethics to Justice: The Nazi Judicial System (1933-1945) and the Nuremberg Trials.” He spoke at the 11th annual Ethics Luncheon on April 13, 2016, co-sponsored by the St. Thomas More Society and the Sacramento chapters of the J. Reuben Clark Law Society and the BYU Management Society.

Justice Fybel is an expert on the German judicial system under Nazi rule and the Nuremburg Trials, and teaches a seminar on the subject at Fowler School of Law at Chapman University.

German officers of the court had worked in an established, well-organized legal system for decades that had protected individual rights. However, as Justice Fybel explained by quoting scholar Claudia Koonz, the Nazis believed “a state was not only empowered but also obliged to override individual civil rights in the interest of creating an ethnically homogenous nation.” They “denounced the idea of universal human rights, saying: Not every being with a human face is human.”

Yet the Nazis also relied on their written laws as a source of state authority. So they acted to establish their rule and eliminate civil rights within a framework of law. First, they exercised constitutional rights to eliminate constitutional protections. In 1933, President von Hindenburg and Chancellor Hitler issued an emergency decree authorized by the constitution that suspended certain constitutional freedoms of the press and individual rights. That same year, the German legislature, the Reichstag, essentially voted itself out of existence by exercising a constitutional right to change the constitution by a two-thirds vote, granting Hitler dictatorial power to enact legislation that deviated from the constitution.

Justice Fybel stated the Nazis next eliminated the judiciary’s independence. After Hitler became Führer in 1934,

20

SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

Hon. Richard D. Fybel, Associate Justice, California Court of Appeal, Fourth Appellate District, addresses the 11th Annual Ethics Luncheon in Sacramento, April 13, 2016

the government adopted a new oath to administer to judges and lawyers. Instead of swearing loyalty to the Constitution and obedience to the law as they had done in the past, judges and lawyers swore to “be true and obedient to the Führer of the German Reich and people, Adolf Hitler, [and] observe the law . . . so help me God.” Justice Fybel reported that of all the judges and lawyers in Germany required to take the new oath, only one lawyer resigned, and, according to the most comprehensive study on the question, not a single judge resigned in protest.

With constitutional rights and the judiciary’s independence eliminated, a string of anti-Jewish decrees and laws followed. Some of the most notable were the Nuremberg Race Laws the German Nazi Congress passed in 1935. These laws deprived German Jews their citizenship and cancelled their legal rights. The laws included the “Law for the Protection of German Blood and German Honor.” This law prohibited intermarriage and “extramarital relations” between Jews and non-Jews. The penalty was death.

Justice Fybel said the judiciary fully cooperated in these actions. Scholar Ingo Müller stated the judiciary’s own acknowledged purpose was not to dispense justice, but “to annihilate the enemies of National Socialism.” The judiciary interpreted anti-Jewish laws with this purpose in mind.

Justice Fybel related an example of the judiciary’s cooperation that arose from the law prohibiting extramarital relations. A government ordinance had defined extramarital

FEATURE ARTICLE relations as “sexual relations.” The German Supreme Court er judges, ministers, and prosecutors were charged with war in 1936 interpreted that term to mean any act that satisfied crimes and crimes against humanity through abuse of the juthe sex urge; a verbal proposition for sex violated the law, and dicial process. They were tried at Nuremberg in what became the crime did not require bodily contact. This interpretation, known as the Justice Case and the Jurists’ Trial. (This trial was the high court wrote, was required “because the provisions of the basis of the movie “Judgment at Nuremberg.”) Many judgthe law serve not only to protect German blood but also to es defended their actions by claiming they were just followprotect German honor.” ing orders and had no power to interpret laws. The German A lower court in 1942 Supreme Court’s 1936 applied this interpretation decision interpreting to the case of Lehmann the term “sexual reKatzenberger and Irene lations” proved those Seiler. Katzenberger was claims were not true. a 68-year-old German Jew, Rothaug asserted he a married merchant, and a decided cases based leader of the Nuremberg on the evidence. The Jewish community. Seiler tribunal found otherwas a 32-year-old married wise, concluding he as Aryan who owned a phoa judge was a “knowing tography shop. Both were and willing instrument charged with racial polluin . . . persecution and tion; specifically, continual extermination” of Jews. extramarital sexual interJustice Fybel concourse. cluded his remarks The lower court is- Ethics Luncheon attendees Brian Bowen (President, BYU Management Society), by contrasting this sued an opinion that had Hon. Richard D. Fybel, SCBA President Heather Cline Hoganson, & Joshua Rogers, appalling history with all the trappings of a judi- President, J. Reuben Clark Law Society an example from Unitcial opinion. It made finded States jurispruings of fact and summarized the defense. Katzenberger and dence—a reminder of our responsibility to protect all conSeiler were friends. He advised her on personal and financial stitutional civil rights. In 1943, the United States Supreme problems, and she regarded him as a fatherly friend. Seiler Court ruled that students who were Jehovah’s Witnesses admitted she kissed Katzenberger occasionally and allowed could not be compelled to pledge allegiance to and salute the him to kiss her. She frequently sat on his lap. She said there American flag. (West Virginia State Board of Education v. Barwere no sexual motives. nette (1943) 319 U.S. 624.) Justice Robert H. Jackson, who The court found against the defendants. It rejected their wrote the opinion, would later serve as chief United States “excuses,” concluding the descriptions of their relationship prosecutor at Nuremberg. In language that Justice Fybel be“defy common sense.” The court said their relationship lieves “just sings,” Justice Jackson stated: “The very purpose was “of a purely sexual nature” with “continuous sexual inof a Bill of Rights was to withdraw certain subjects from the tercourse.” It then discussed the German Supreme Court’s vicissitudes of political controversy, to place them beyond the 1936 interpretation of the law prohibiting sexual relations, reach of majorities and officials and to establish them as legal and concluded that interpretation governed this case. Even principles to be applied by the courts. One’s right to life, though there was no evidence of sexual contact, the lower liberty, and property, to free speech, a free press, freedom of court reasoned: “The political form of life of the German worship and assembly, and other fundamental rights may not people under National Socialism is based on the community. be submitted to vote; they depend on the outcome of no elecOne fundamental factor of the life of the national community tions.” (Id. at p. 638.) is the racial problem. If a Jew commits racial pollution with “If there is any fixed star in our constitutional constela German woman, this amounts to polluting the German race lation, it is that no official, high or petty, can prescribe what and, by polluting a German woman, to a grave attack on the shall be orthodox in politics, nationalism, religion, or other purity of German blood. The need for protection is particmatters of opinion or force citizens to confess by word or ularly strong.” The court sentenced Katzenberger to death. act their faith therein. If there are any circumstances which Justice Fybel said that after the war, the lower court chief permit an exception, they do not now occur to us.” (Barnette, judge on the Katzenberger case, Oswald Rothaug, and othsupra, 319 U.S. at p. 642.) www.sacbar.org | July August 2016 | SACRAMENTO LAWYER

21

Lisa Dornback is a grant writer for the Elk Grove Unified School District and can be contacted at LDornbac@egusd.net. Alana Mathews is the Public Adviser, California Energy Commission.

She can be contacted at Alana.

Mathews@energy.ca.gov.

SUPPORTED ORGANIZATION

Sacramento Law Foundation n California State Bar TrialFlorin Lawyer Hall of Fame, 2001 Academy Funds LAW n Fellow, American College of Trial Lawyers, since 1986 Summer Institute n Northern California Super Lawyers since inception in Energy n Best Lawyers in America since inception, recently: Law and Policy by Lisa Dornback and Alana Mathews u Lawyer of the year, Real Estate Litigation, Sacramento, 2014

u Lawyer of the Year, Commercial Litigation,

Sacramento 2010

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

Steve Duvernay (SLF Board Member), students Erwin Rojas, Ramsses Rodriguez, Anthony Nammavong, & Ildefonso Mendoza, Alana Mathews (Florin Law Academy Co-Chair), Mary Burroughs (SLF Executive Director), Pam Jones (SLF Secretary), Jeff Edwards (SLF Treasurer), & Todd Vlaanderen (SLF Board Member)

T

he Florin High School Law and the World (LAW) Academy

6) 825-9952received F/ (916) 525-8446 a $3,350 grant from the Sacramento Law Founda-

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tion (SLF) to help fund its Summer Institute in Energy Law and www.genshlealaw.com Policy.

This grant award was celebrated with a check presentation at the SLF’s Big Day of Giving event on May 3, 2016. SLF ExTom Director WagnerMary - SCBA 2015made the presentation along ecutive Burroughs with SLF board members Steve Duvernay, Pam Jones, Jeff Edwards, and Todd Vlaanderen. Alana Mathews, the summer institute creator, then presented the SLF grant check again to Carlos Garcia, LAW Academy Coordinator, on May 5, 2016, at the LAW Academy’s 6th Annual Legal Career Fair.

Students selected to participate in the summer institute will have the opportunityMAGAZINE to interact with commissioners, lawyers, legislators, policy advisors, advocates, and technical 1/8 page Ad staff. The SLF grant will help purchase supplies and provide

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a generous stipend to participants in the program. The SLF grant is supplemented by funding from the Elk Grove Unified School District to cover the costs of two full time teachers, lunches, and transportation.

The two-week summer institute is hosted by the California Energy Commission Public Adviser’s Office from July 1-15, 2016. It educates ethnically diverse and economically disadvantaged students on key energy and environmental issues facing the state. Students will engage in a rigorous curriculum which includes daily journaling, research assignments, field trips, guest speakers, and a final project presentation. LAW Academy Coordinator Carlos Garcia shared, “This is a tremendous opportunity studentsAd to explore 163px -163pxforBanner state government and learn about energy policy in California.” An additional element of student learning includes skills enrichment training for time-management, effective communication, public speaking, and critical thinking. These workshops, coupled with career exploration activities, will provide students with a rich pre-employment work experience.

The Summer Institute in Energy Law and Policy is a wonderful opportunity to expose the students to an emerging field of law and also provides them with clear career pathways in a sector where they are underrepresented. Last year only six students were able to complete the program. Thanks to the SLF grant, the summer institute can double the number of participants this year. For more information about the summer institute or if you are interested in donating legal twagner@hebw.com | (916) 449-3800 tchotchkes (s.w.a.g.) to the program, please contact Alana Mathews at AMathews@energy.ca.gov.

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SECTIONS & AFFILIATES

The Public Law Section Delivers Legal Education in Myriad Area by Kate Killeen

T

he Public Law Section offered engaging and informative MCLE programs this past Spring. In March 2016, Gustavo Martinez and Chance Trimm, both with the Sacramento City

Kate Killeen is an attorney with the California Department of Water Resources and the 2016 Chair of the Public Law Section.

She can be contacted at Katharine.Killeen@water.ca.gov.

Attorney’s Office, spoke about a local regulatory approach to camping in the urban landscape. A spirited question and answer sequence followed and included homeless advocates.

Kristianne T. Seargeant and Meredith Packer Garey

Gustavo Martinez & Chance Trimm

In May 2016, Kristianne T. Seargeant and Meredith Packer Garey, both with Kronick Moskovitz Tiedemann & Girard, presented on law enforcement personnel files and the right to privacy versus public access. They led a lively roundtable discussion that touched on Pitchess motions, settlement agreements, body-worn camera data, electronic communications, privacy, the Public Safety Officers Procedural Bill of Rights, and much more.

The Public Law Section is planning more interesting and educational activities, including a joint event with the Administrative and Environmental Law Sections in the Fall. We look forward to seeing many of you there.

24

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25

SECTION & AFFILIATE NEWS

Barristers’ Club Update

by Caroline Colangelo

Caroline Colangelo is the 2016 Barristers’ Media Chair and an associate at Delfino Madden O’Malley Coyle & Koewler LLP. She can be contacted at ccolangelo@delfinomadden.com.

could maximize their effectiveness and impress judges and juries by avoiding uncouth behavior and showing respect and deference. In typical fashion, Judge Brown’s presentation was well-received by all, as he amused attendees with his anecdotes and provided valuable insights. The Barristers’ Club would like to thank Judge Brown for participating in this memorable seminar.

Patrick Fitzgerald, Avalon Johnson Fitzgerald, & Judge Lawrence Brown mingle at the Barristers’ Club Annual Judicial Reception

Connor Olson & Andrew Collins at the Annual Judicial Reception

How to Build and Preserve Goodwill with Your Trier of Fact Seminar In early April, Barristers’ Club members converged at DLA Piper to attend a seminar presented by Judge Lawrence G. Brown of the Sacramento County Superior Court. Judge Brown imparted tips and advice about how young attorneys

26

SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

The Annual Judicial Reception at Foundation Bar & Restaurant The Barristers’ Club of Sacramento hosted its Annual Judicial Reception at Foundation Bar & Restaurant on May 26, 2016. The Judicial Reception honored Sacramento County Superior Court judges, federal judges, and justices of the Court of Appeal for their hard work, dedication, and contributions to the local legal community. The event also provided a rare opportunity for young attorneys to engage with members of the judiciary in a social setting. The event was

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Once again, the Barristers’ Club was thrilled to welcome OK with corrections Judge David I. Brown and Judge Raymond M. Cadei of the (916) 564-3787 Sacramento County Superior Court Law and Motion Departary Burroughs ments to present at the Barristers’ Annual Law and Motion acbar.org Seminar. On June 2, 2016, Barristers’ members gathered at Departments 53/54 where the judges addressed the fundamenSIGN DATE tals of civil motion practice in Sacramento County. The judges provided valuable information for both new and experienced civil practitioners regarding general motion practice, demurrers, and ex partes. The Barristers’ Club would like to extend its profound thanks to Judge Brown and Judge Cadei for their insight, guidance, and participation in this seminar.

Getting you the information you need to succeed!

• Focus Groups & Mock Trials

you!

Watch the Calendar for Upcoming Events The Barristers’ Club’s 24th Annual Summer Associates Reception is scheduled for July 21, 2016 at the Park Ultra Lounge. For more information regarding sponsorship opportunities or event details, please e-mail Katie Nystrom at Katie. nystrom@calrecycle.ca.gov.

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SECTION & AFFILIATE NEWS

St. Thomas More Society Updates

by Angela M. Lai n California State Bar Trial Lawyer Hall of Fame, 2001

n Fellow, American College of Trial Lawyers, since 1986 n Northern California Super Lawyers since inception

T

he St. Thomas More Society, Sacramento, recently hosted a number of successful events.

n Best Lawyers in America since inception, recently: u Lawyer of the year, Real Estate Litigation,

ation WineSacramento, 2014 & Hors d’oeuvres Mixer u Lawyer of the Year, Commercial Litigation, wyer?

On March 30, Sacramento 2010STMS members and friends enjoyed a

Angela M. Lai is a Senior Attorney at the California Department of Managed Health Care and President of the St. Thomas More Society, Sacramento.

She can be contacted at Angela.

Lai@dmhc.ca.gov.

and lively discussion on how Canon Law (the system of law used by the Catholic Church) is interpreted and the possible effects in American Civil Law.

wonderful evening together at2012, a wine and hors d’oeuvres reCompany Litigation, 2013, 2014 u Bet the Commercial Litigation, 2012, 2013, 2014 ception.

The STMS was honored by the attendance of Judge u Litigation-Banking and Finance, 2012, 2013, 2014 u James Mize and Judge Jaime Roman from the Sacramen2012, 2013, 2014 u Litigation-Real to County SuperiorEstate, Court, and Administrative Law Judge Plauché Villeré from the Social Security Administration.

The mixer was generously underwritten by Wilke Fleury, Downey Brand LLP, and Messing Adam & Jasmine LLP. Speakers U.S. District Judge Troy L. Nunley & Father C. Hightower, S.J.

Annual Ethics Luncheon

Since 1996, the STMS has co-sponsored an annual ethics luncheon with the J. Reuben Clark Law Society and the Brigham Young University Management Society. This year, on April 13, Justice Richard D. Fybel of the Court of Apm peal, Fourth Appellate District, provided a compelling and C/ (916)thought-provoking 825-9952 F/ address (916) 525-8446 on the absence of judicial ethics and the failure of the bench and bar facilitated the horrors of nto, CA 95814 www.genshlealaw.com Nazi Germany.

See Doug Potts’ article on page 20.

Sacramento County Public Law Library Partnership with the Sacramento County SCBA 2015 Public Law Library On May 18, the STMS celebrated our new partnership with the Sacramento County Public Law Library with a successful MCLE lunch program, “Duality – A Dialogue on the Comparison of Canon Law to Civil Law.” U.S. District Judge Troy L. Nunley and Superior of the Sacramento Jesuit Community, Father C. Hightower, S.J.,MAGAZINE led a thought-provoking

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Upcoming STMS Events Please mark your calendars for the annual Red Mass for the Diocese of Sacrament, at 5:15 p.m. on October 12 at the Cathedral of the Blessed Sacrament.

To stay up-to-date with our events, please email stms. sacramento@yahoo.com to add your name to our email list. Or find us916-874-6011 on Facebook |under “Saint Thomas More www.saclaw.org Society, Sacramento.”

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LIC. # 01199010 kevin.partington@cushwake.com

KRIS KALMBACH 916.288.4421

LIC. # 01436668 kris.kalmbach@cushwake.com

BLAKE BATULA 916.288.4423

LIC. # 01948319 blake.batula@cushwake.com

400 CAPITOL MALL, SUITE 650, SACRAMENTO, CA 95814 LIC. # 00616335 www.sacbar.org | July August 2016 | SACRAMENTO LAWYER

29

RESTAURANT REVIEW

The Ad Hocs

GOOD FOOD FOR A GOOD CAUSE

D

iners who walk into My Sister’s Cafe at 455 Capitol Mall might not notice anything special about the place, but My Sister’s Cafe differs from other lunch eateries—it is a volunteer-based support program that helps survivors of domestic violence and human trafficking “get back on their feet” financially. Plus, it is a source of much needed funding for the non-profit, My Sister’s House (a shelter serving women and children impacted by domestic violence, sexual assault, and human trafficking by providing a culturally appropriate and responsive safe haven, job training, and community services).

The cafe offers a selection of breakfast items, soups, salads, sandwiches and wraps, smoothies, boba drinks, specialty coffee and tea, with an Asian edge. It has a regular menu and

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also offers specials that change every two weeks.

On to the Ad Hocs’ dining experience…The bánh mì sandwich—with marinated chicken, carrots, cucumber, cilantro, jalapeños, other fresh-tasting condiments, and a tasty mayo spread— was refreshing. The Beef & Lemongrass Rice Noodle Soup, served with shredded cabbage and a slice of lime on the side, earned a sincere “yummy.”

The impressive selection of smoothies, boba drinks, and specialty coffee made the choice difficult. The vanilla chai milk tea often hits the right spot. And the lemon/lime/mint-infused iced water is perfect on a hot day.

One thing really special about the Café is the genuinely friendly service and the homey feeling. Everyone is greeted with a smile. “My Sister’s Cafe isn’t just your average sandwich and salad shop.

Its menu choices have that homemade

SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

quality that makes you feel like you’re eating lunch at someone’s house,” says ABAS President Karen Kim. But perhaps the most significant difference is who you’ll find working at My Sister’s Cafe. The café offers on-the-job training to survivors of domestic violence, sexual assault, and human trafficking.

If you plan to visit My Sister’s Cafe during the lunch hour, consider calling ahead (916 475-1864) because the cafe can get busy during the lunch rush. Expect staff members who are eager to learn job skills, and who are truly happy you are there.

My Sister’s Cafe serves breakfast and lunch Monday through Friday from 9am to 3pm. Enjoy (and leave a good tip)!

Women Lawyers of Sacramento Presents the 23rd Annual

Fest

THURSDAY, SEPTEMBER 22, 2016 - 6:00PM-8:30PM LOCATION: VERGE CENTER FOR THE ARTS 625 S STREET, SACRAMENTO, CA 95811

Join colleagues and friends for an exciting evening including local artists, hosted food and wine, and silent auction. Proceeds fund grants to local charitable organizations and scholarships for law students.

PLATINUM SPONSORS

GOLD SPONSORS

Ticket pricing: $40 advance purchase; $45 at the door.

Tickets may also be purchased online at http://womenlawyers-sacramento.org/events/annual-artfest/

I would like ______ tickets at $40/person I cannot attend, but would like to donate: $__________ Enclosed is my payment of $____________________

Check # ____________________

Name(s): ____________________________________________________________________ Company: ___________________________________________________________________ Address/Phone: ______________________________________________________________ 3600 American River Drive

S UI T E

160, Sacramento, CA 95864

Tony & Joan Stone

Email: _______________________________________________________________________ For information on the event please contact the WLS Development Committee at wlsartfest@gmail.com

Return form and check payable to “WLS Foundation” To: FolioDynamix Attn: Kristen Benadom/WLS •2399 Gateway Oaks Drive• Sacramento, CA 95833 www.sacbar.org | July August 2016 | SACRAMENTO LAWYER

31

BOOK REVIEW

Andrew W. Stroud is a partner at Hanson Bridgett. He can be contacted at astroud@ hansonbridgett.com.

Book Review: N is for Knuckleheads

M

ost lawyers like to think they are writers. Now, one of Sacramento’s most esteemed attorneys, Joe Genshlea, actually is one. Genshlea recently published N is for Knuckleheads, Bad Decisions, Facts v. Beliefs, and America’s Deference to Ignorance, a collection of essays on various topics, primarily legal, which is both enjoyable and thought-provoking. A fierce critic of Justice Scalia’s interpretation of the Second Amendment, but a firm believer in nuclear energy, Genshlea’s thinking is best defined by his profession rather than his politics. As Genshlea makes clear in the book’s introduction and first chapter, ignorance is inexcusable. Facts and knowledge must reign supreme.

A distinguished career as one of Sacramento’s pre-eminent trial lawyers has taught Genshlea that arguments should be based on facts, that history should be our guide, that logic should make sense, and that, notwithstanding all of the above, things frequently become lost in translation. As demonstrated by Genshlea, the Bill of Rights was never meant to secure individual liberty, but to protect the states from a tyrannical federal government. Genshlea also notes that the Founding Fathers were not proponents of “one man one vote,” as their creation of the Senate, which provides for disproportionate representation to sparsely populated states, certainly demonstrates. Indeed, according to Genshlea, the Founding Fathers’ conception of “one man one vote,” was one rich white man with that vote, to the exclusion of all others. Yet, Genshlea notes that de-

32

by Andrew W. Stroud

spite these historical facts, “one man one vote” appears to be a bed rock principle of constitutional interpretation today.

N is for Knuckleheads by Joe Genshlea

Genshlea writes that our “present Constitution bears little resemblance to the Constitution as written by the Founding Fathers,” but he appears to believe that the change has been for the better, as no one could truly abide by the words of the Constitution exactly as written, perhaps most especially those who call for its “strict construction.”

While our Nation’s slouch toward ignorance is the theme of Genshlea’s book, his essays never veer into “abandon all hope” territory. Genshlea appears to believe that the jury is still

SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

out and our Republic can be saved if we all take a little more interest in our one common country, though this task is not easily accomplished in a world where technological reliance has led to mental complacency and an alarming lack of self-awareness and self-reliance.

As Genshlea posits: “As danger retreats and technology becomes more complicated, are we to give up diligence for ignorance and mythology?” That Genshlea poses this as a question rather than a statement of fact must mean he believes the verdict has not yet been rendered.

Although Genshlea’s essays on some of the most defining constitutional questions of our times form the backbone of his book, it is his essays on little things that make the book so enjoyable. In his essay “The Truth About Lying,” Genshlea ponders as to why lawyers so purposefully try to avoid calling someone a liar in court, when lying is something all of us do, each and every day, when we tell half-truths or omit certain facts because, “Truth can be devastating and withholding it may sometimes be the right thing to do.” Genshlea also has little patience for “zero tolerance,” which he finds is a poor substitute for good judgment, and he debunks the belief that all hindsight is 20/20, declaring that “Hindsight justifies nothing.” Like small tales told to a jury in closing argument, these brief essays make their points without belaboring them.

Every good trial lawyer is a teller of tales both great and small, and Joe Genshlea ranks among the best of them.

Since 1963

Marty Anderson Vice President

Lawrence H. Cassidy President

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700 Leisure Lane, Sacramento, CA 95815 Phone 916.929.7811 ext 222 | Fax 916.929.5125 | Email norcal@covad.net

EVENTS

Michael Solomon is a Sacramento lawyer, photographer, and arts patron. He can be contacted at mike@nomolos.com.

Photos by Scott Wreyford

CLA’s Celebrates Its Annual Artistic License Awards by Michael Solomon

Supervisor Phil Serna, Art Luna, Ali Youssefi, Ellen Taylor, & Sen. Jim Nielsen

C

alifornia Lawyers for the Arts, the newest affiliate of SCBA, celebrated its ninth annual Artistic License Awards reception on May 17th, at the California Automobile Museum. This reception is a fund—and fun—raising event held in honor of individuals and groups who have made unique, if not extraordinary, contributions to the arts and the community in general.

This year’s honorees included California Senators Mark Leno (D) and Jim Nielsen (R)—for working in a bipartisan manner to increase the budget for the California Arts Council and for their support of the arts over the years. Both senators have advocated strongly to increase funding for the California Arts Council and introduced legislation to designate California Cultural Districts. Both also support CLA’s Arts in Corrections Program through the Department of Corrections and Rehabilitation.

Marcy Friedman, Art Luna, Ali Youssefi, and the Sacramento Gay Men’s Chorus were also honored. Since 1983, Luna Café and Juice Bar has hosted over 1000 visual artists, poets and musicians, performing and displaying their work.

Youssefi was recognized for support of the arts in his development of downtown Sacramento, especially building his Warehouse Artist Lofts on R Street, which provides affordable housing for artists.

The evening’s final award went to Ellen Taylor, CLA’s Associate Director in Sacramento, for her 20 years of excellent service to CLA.

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SACRAMENTO LAWYER | July/August 2016 | www.sacbar.org

CLA Executive Director Alma Robinson, with awardee Ellen Taylor, & Bonnie Kneitel, CLA Program Director for Arts Arbitration and Mediation Services

This event surely put the “fun” in fundraising. You need not be a lawyer or artist to join California Lawyers for the Arts; but if you support the arts and the artists, please consider joining CLA. See www.calawyersforthearts.org or call 916-441-7979 for Nick Danger.

Save the Date November 10, 2016 FOURTH ANNUAL FOUNDERS’ AWARD Honoring: Justice Arthur Scotland

More information to come at saclegal.org.

QUESTION EVERYTHING Are you asking the right questions?

After 60 years in business, we have the answers: pearlinsurance.com/SacBar For more information, contact Christine Blackstun 855.465.0199 | christine.blackstun@pearlinsurance.com

162017-SR-PLL-MAG-PAD

Announcing the

ABAS 28th Golf Invitational

SAVE THE DATE - Sunday, September 18, 2016 Asian/Pacific Bar Association of Sacramento 28th Annual Golf Invitational at Turkey Creek Golf Club - 8:30 am Shotgun Start Honorary Tournament Chair – Darrell Steinberg A Benefit for the ABAS Law Foundation Scholarship Fund And Community Outreach Programs Additional information:

Sunday – September 18, 2016

abaslawfoundation.org Jerilyn Paik - 916.568.1222

SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

1329 Howe Ave., #100120 • Sacramento, 425 University Ave., Suite • Sacramento,CA CA95825 95825

SCBA Annual Meeting Honoring Distinguished Attorney of the Year Justice Arthur Scotland Installing SCBA Officers & Directors Recognizing 100% Firms

DATE Monday December 15, 2014 MCLE Prior to Annual Meeting FREE for SCBA Members $100 for Non-Members 1 Hour Ethics - Topic: “Attorney Fees, Practically and Ethically”

Speaker: Kenneth Bacon of Mastagni Holstedt

TIME 11:30 Check in 12:00 Lunch PLACE Sheraton Grand 1230 J Street

10:30-11:30am

Keynote Speaker: Chief Justice of California

Tani Cantil-Sakauye Ticket information: www.sacbar.org/event calendar, $45 for SCBA members, $65 for non-members.

After November 23rd, ticket prices increase by $5 RSVP to rsvp@sacbar.org or call (916) 564-3780. Send checks payable: SCBA, 1329 Howe Ave #100, Sacramento, CA 95825