Sacramento Lawyer Magazine SEPTEMBER/OCTOBER

SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

2016 SCBA Judge of the Year

David Abbott www.sacbar.org

Photo by Mark Long-Eleakis & Elder Photography

September/October 2016

Immigration Law Section Coming to the SCBA Online Confidentiality Issues Legal Malpractice Insurance 101

THIS WEEK’S ADVENTURE

The Case of the New Name on the Door Ueltzen & Co. is now EisnerAmper and expanding services in new directions

It’s not a whodunnit, it’s a whydunnit. We’re combining with EisnerAmper to offer our clients more services, more resources, and more opportunities at the national level. Most of our clients will see no change whatsoever — they’ll be served by the same people, at the same high level of service. But for those seeking new possibilities on a wider stage, your case is now stronger than ever.

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Ueltzen & Company is now EisnerAmper 3600 American River Drive, Suite 150 Sacramento, CA 95864 916.563.7790 www.eisneramper.com

FOURTH Save the Date November 10, 2016

ANNUAL FOUNDERS’ AWARD

In recognition of his contributions to the legal profession and support of the lesbian, gay, bisexual, and transgender community.

Justice Scotland served on the Third District Court of Appeal from 1989 to 2010, and was Presiding Justice from 1998 to 2010. He currently is Of Counsel at Nielsen Merksamer.

LOCATION: Casa Garden 2760 Sutterville Rd Sacramento, CA 95820

TIME: 5:30 PM Cocktails and Heavy Appetizers Will Be Served

6:30 PM Program Starts

MORE INFORMATION:

to come at saclegal.org.

Honoring:

Justice Arthur Scotland

EDITOR’S MESSAGE Betsy S. Kimball

Amen

by Betsy S. Kimball

P

lease enjoy this issue, featuring Art Scotland’s cover story about the 2016 SCBA Judge of the Year, David Abbott.

We are now upon a very consequential election. Any doubt, think of SCOTUS. ABA immediate past president Paulette Brown, writes: “As November’s presidential election approaches, we, as lawyers, must … do all we can to ensure that the voting process is fair and accessible. … [A]ll eligible voters should be able to vote ….” This may seem obvious.

Three years ago, in a 5-4 decision, SCOTUS halted the preclearance requirement of the 1965 Voting Rights Act. (Shelby County v. Holder (2013) 133 S.Ct 2612.) Preclearance required states and localities with a history of racial discrimination to obtain the federal government’s “preclearance” for changes to their voting laws.1 Because I am an Alabama lawyer, I will share what has happened there.2 The day after the Shelby County decision was issued, Alabama implemented its “photo ID” law.

Maybe voter fraud was a problem? Not according to Loyola Law School Prof.

Justin Levitt, who wrote in the Washington Post Wonkblog that, among the > 1 billion votes cast between 20002014, voter ID laws would have prevented 31 documented incidents of voter fraud.3 The Alabama law restricts in-person and absentee voting to indi-

viduals who are able to produce one of seven required forms of “valid” photo ID. Soon, the state announced the closure of some 31 driver’s license offices, mostly located in the historic and rural “black belt” of the state. The NAACP reports that 17 have since reopened one day per month. I looked up the hours of some offices in remote parts of several of these rural counties and found some offices open a little more than that, and one even less (one morning per month). By August 10th, courts had struck down portions of five states’ ID laws—not Alabama’s unfortunately.

Vote; help someone else get to vote; volunteer at the polls. President Brown concluded: “Voting should be easier, not harder. Too many people fought for too many years for everyone to have this right.” Amen.

1 California’s own Kings, Monterey, and Yuba Counties were once subject to preclearance. See, https://www.justice.gov/crt/jurisdictions-previously-covered-section-5 [as of July 31, 2016].

2 I am using a June 2016 report of the NAACP Legal Defense Fund and also a court order denying injunctive relief as my sources for details, and fact checking as noted. See, http://www.naacpldf.org/ files/case_issue/States%20and%20Localities’%20 Responses%20to%20Shelby%20County,%20 Alabama%20v.%20Holder%20as%20of%20 6.21.2016.pdf [as of July 31, 2016] and Greater Birmingham Ministries, et al. v. State of Alabama, et al. (N.D. Ala., Feb. 17, 2016) 2:15-cv-02193-LSC. 3 https://www.washingtonpost.com/news/wonk/ wp/2014/08/06/a-comprehensive-investigation-of-voter-impersonation-finds-31-credible-incidents-out-of-one-billion-ballots-cast/ [as of July 31, 2016].

1932-2016 The SCBA regrets the passing of Judge Michael J. Virga. Judge Virga served on the Sacramento Superior Court for over 20 years, until 1994.

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SACRAMENTO LAWYER | September/October 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

SEPTEMBER / OCTOBER 2016 VOLUME 117, NUMBER 5

COVER STORY 18 2016 SCBA Judge of the Year David Abbott FEATURE ARTICLES 8

Cultural Awareness and Sensitivity in Providing Legal Services to LGBTQ Consumers

12 An Introduction to Collaborative Divorce 26 Legal Malpractice Insurance 101 for Solo and Small Practice Lawyers ANNOUNCEMENT FROM THE COURT 11 The Law & Motion and Settlement Conference Departments Are Moving

18

ANNOUNCEMENT FROM THE SCBA 28 Invitation to Join the Lawyer Referral and Information Service, and Possible Changes Ahead ETHICS 10 Online Confidentiality Issues SECTIONS & AFFILIATES 14 Solo/Small Practice Division: Helping Your Small Firm Succeed 24 Immigration Law Section Coming to the SCBA

16

BARRISTERS’ 16 Barristers’ Club Update SUPPORTED ORGANIZATIONS 30 Summer Institute in Energy and Policy Moves Florin Law Academy Students to Action

DEPARTMENTS

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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

2016 SCBA Judge of the Year David Abbott

www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

5

PRESIDENT’S MESSAGE Heather Cline Hoganson

Summertime

W

e’ve had a busy summer at the Bar Association.

Our seven-week Food from the Bar campaign concluded in June, exceeding our goals with over 5000 pounds of food collected and over $11,000 in cash donations raised. Plus, SCBA and Asian/Pacific Bar Association members sorted and packed approximately 25,000 pounds of food for local distribution centers. This campaign to fight hunger among children was co-sponsored by Women Lawyers of Sacramento and by the Wiley Manuel, Cruz Reynoso, South Asian, and Leonard Friedman Bar Associations. Thanks to everyone who contributed money,

President, Sacramento County Bar Association

by Heather Cline Hoganson

food, or time! We look forward to helping even more families next year.

The Movers Division completed the first-ever SCBA Virtual Bar Games—huzzahs to all participants and congratulations to winners Christopher Lee, Nonye Ugorji, Bret Ladine, Natalie Bustamante, Jennifer Hart, and Susan Hill. Thanks to Division Chairs Russ Carlson and Susan Hill for motivating many of us to burn some calories. For those of you who forgot to register by the deadline, you missed out on a great tech shirt and fun after-party, so keep your eyes open for the next Movers event.

At the July Board meeting, the

Immigration Law Section (which I’ve mentioned before) was officially approved. See the article in this issue by Brian López and Michael Wang, and call the Bar office to be added to this section FREE for the rest of this year.

The Board also appointed its first ever SCBA Ethics Committee members in July. Contact Ken Bacon if you have an interest in serving on this committee.

Friday, September 16, is the observation of Constitution Day, commemorating the adoption of the U.S. Constitution on September 17, 1787. Three branches… President must be a natural-born citizen… Full faith and cred-

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Proof OK as is right? Well, playing out right now on Correction needed our national stage is one branch, the Senate, delaying the work of another See a second proof branch, the judiciary, which has been one justice short on the Supreme OK Court with corrections since Justice Scalia’s death, may he rest 6) 564-3787 JAY-ALLEN EISEN in peace.

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 While half of the cases before the bar.org Certified Appellate Law Specialist U.S. Supreme Court have unanimous State Bar of California, Board of Legal Specialization SIGN DATE decisions, a statistically significant Best Lawyers in America number have been 5-4 votes, which is Northern California Super Lawyers currently not an available option with Past Chair, California State Bar Standing Committee on Appellate Courts a vacant seat. Due to splits, some cases Past President, California Academy of Appellate Courts are being returned to the lower courts, Fellow, American Academy of Appellate Lawyers and legal certainty in those matters will Over 130 Reported Decisions, including: have to wait for another case to chamBock v. Calif. Capital Loans 216 Cal. App.4th 264 (2013) (Real estate loans) pion it. In May, given that the PresCollins v. Sutter Mem. Hosp. 190 Cal. App.4th 1 (2011) (Summary judgment, new trial) ident of the United States (that other McAdams v. Monier, Inc., 182 Cal. App.4th 174 (2010) (Consumer Class Action) Katiuzhinsky v. Perry, 152 Cal.App.4th 1288 (2007) (Medical Damages) branch) nominated a candidate, your Hahn v. Mirda, 147 Cal.App.4th 740 (2007) (Medical Malpractice, Loss Of Consortium) SCBA Board of Directors approved a letter to the Senate Judiciary CommitT (916) 444-6171 1000 G Street, Suite 210 Sacramento, California 95814 tee which urges that a hearing be set www.eisenlegal.com on the nomination. The SCBA clearly stated that this was not a political issue, but one of performing the duties laid out in the U.S. Constitution—one Approval is neededSCBA to run yourAffiliates, ad, which has significant impacts on us all, please check appropriate box below.

Committees, Divisions, and at both national and local levels.

In this end-of-summer issue, we Proof OK as isSections….we have congratulate Judge David Abbott on Correction needed being named SCBA’s 2016 Judge of the Year. I look forward to seeing many of See a Tech-ready second proof buffet luncheon you at the annual Bench Bar Reception or classroom space is OK with corrections and I thank in advance the commitavailable. tee (Meredith Packer Garey, Shanae SIGN ___________________________ For more information call Buffington, Sheila Tatayon, Natalie Bustamante, Viana Barbu, Kather916-564-3780 DATE__________ ine Sandberg, Erin Stratte, Tracey O’Reilly, and Brad Coutinho) and the Bar staff for all of their preparation work in putting it together.

Please fax back to (916) 564-3787 or email back to Deb Roberts at droberts@sacba

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space for you!

Thank you!

www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

7

FEATURE ARTICLE

Cultural Awareness and Sensitivity in Providing Legal Services to LGBTQ Consumers

T

he June 12, 2016 mass shooting at Pulse nightclub in Orlando, Florida left 49 people dead, 53 injured, and a nation in shock. About a year earlier, on June 26, 2015, the United States Supreme Court made same-sex marriage legal in all 50 states. Despite this happy conclusion of the legal issue, discrimination against members of the LGBTQ community continues. State legislatures in various parts of the country are passing laws that directly conflict with the spirit and the letter of the Obergefell decision. The so-called “bathroom bills”—barring trans people from using the bathroom associated with their gender identity—and other enactments by these state legislatures expressly sanction discrimination against the LGBTQ community. Thus, the Supreme Court

Jessica Warne practices family, real estate, and appellate law and is a member of the SacLEGAL board of directors.

She can be contacted at jwarne@warne-law.com.

by Jessica Warne

pronouncement about LGBTQ rights is not the last word on the matter. History has shown that, even with the protection of the high court, discrimination can become more virulent than it was prior to the pronouncement. The nation is involved in an ongoing conversation about equal protection under the law.

SacLEGAL’s mission is to promote equality. That mission is not limited to members of the LGBTQ community. It is important for members of the legal community to foster a supportive or, at the very least, tolerant attitude toward LGBTQ individuals and other minority groups who seek legal services. Most non-minority consumers take for granted that they will be treated with respect when they contact an

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Questions? Please contact the Unity Bar Association of Sacramento at ptreeves@sbcglobal.net, or Cindy Liu at cindycliu@gmail.com.

KEYNOTE SPEAKER: TANI G. CANTIL-SAKAUYE Chief Justice of California

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SACRAMENTO LAWYER | September/October 2016 | www.sacbar.org

FEATURE ARTICLE

attorney’s office. LGBTQ consumers cannot always be sure that an attorney or firm they “cold call” for legal services will be “LGBTQ-friendly.” For the average legal consumer, finding an attorney for the first time is an intimidating process. The possibility of encountering unequal treatment, animosity, or a denial of services because of a person’s sexual orientation or gender expression can prevent people from getting access to needed legal services. Like LGBTQ-sensitive medical care, access to legal services is an incredibly important social issue. Legal professionals must confront their own discomfort or biases and develop cultural competency with respect to LGBTQ and minority issues that they may encounter in their practices.

Law firms and attorneys should implement best practices and staff training that fosters sensitivity to LGBTQ issues and encourages non-discrimination against any protected class, including LGBTQ people. The Unruh Civil Rights Act (“Unruh Act”) makes it unlawful to discriminate against persons based on sex and sexual orientation, along with race, national origin, and other protected statuses. The definition of “sex” under the Unruh Act includes “a person’s gender.”

Gender is further defined under the Unruh Act to include “gender identity and gender expression.” All people in California are “entitled to the full and equal accommodations, advantages, facilities, privileges or services in all business establishments of every kind whatsoever.” (Civ. Code § 51.)

This sweeping language certainly includes law firms and attorneys.

Non-discrimination is not simply the law of this state.

It is a matter of good risk management practices. As a practical matter, non-discrimination can include basic courtesy, respect, and sensitivity to LGBTQ and minority issues. A small amount of awareness can go a long way toward avoiding discrimination in the provision of legal services. Many attorneys already serve the LGBTQ and other minority communities in their legal practices. For attorneys who do not embrace this thriving legal market, a simple conversation with staff and a self-assessment can help avoid even the appearance of discrimination and foster a safe environment for LGBTQ people and other minorities to access legal services.

In light of recent events, equal access to legal services is more critical than ever.

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Larry Doyle is a Sacramento-based

ETHICS

Online Confidentiality Issues by Larry Doyle

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 n Best Lawyers in America since inception, recently:

L

attorney, 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.

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

ast issue’s article described how a practice actions. (See nFox tions established in the attorney-client BestSearchlight Lawyers in America since inception, recently: exerPictures, Inc. v. Paladino (2001) 89 Cal. privilege or matters protected by the u Lawyer of the year, Real Estate Litigation, Sacramento, 2014 ciseWho common sense and due diligence in App.4th 294.)

Other than that, the work product doctrine.

It “applies to knows vagaries of litigation Sacramento, 2014 Commercialthe Litigation, u Lawyer of the Year, the selection of technology can duty is pretty much absolute. relating to the representaCommercial Litigation, u Lawyer of the Year,information Sacramento 2010 and usebetter than a trialThe lawyer? in a breach of 2012, her ethical duty of problem is that weSacramento live an age2010 tion, whatever its source” (Comment the Company Litigation, 2013, 2014 u Betresult the Company 2012, 2013,and 2014“even where the Litigation,However, 2012, 2013,the 2014 u Commercial confidentiality. online age increasingly dominated byu Bet social me- Litigation, [2] to Rule 3-100) u Commercial Litigation, 2012, 2013, 2014 and Finance, 2012, 2013, 2014 u Litigation-Banking also has provided many ways an attordia, where information on almost any facts are already part of the public reu Litigation-Banking and Finance, 2012, 2013, 2014 u Litigation-Real Estate, 2012, 2013, 2014 ney can breach confidentiality that have topic is readily available, and the prescord or where there are other sources u Litigation-Real Estate, 2012, 2013, 2014 nothing to do with the hardware, softsure on everyone, including attorneys, of information” (Cal. State Bar Formal ware, ISP, or Wi-Fi network she uses. to create and maintain an online “presOpn. No. 2004-165).

As a refresher, Business and Profesence” is incredibly strong—particularIn practice this means that making sions Code section 6068(e)(1) provides ly from a marketing perspective. The comments about current clients on a that is the duty of an attorney “[t]o challenge is maintaining a practice-reweb page, social media, or blog post maintain inviolate the confidence, and lated “presence” without jeopardizing without their consent is a bad idea. at every peril to himself or herself to client confidence and secrets in the The American Bar Association has preserve the secrets, of his or her clicontent one posts. opined (ABA Formal Opinion 10-457) ent.” This standard, which is effecWhat are the secrets and conthat even identifying current or former tively duplicated in California Rule of fidences attorneys are supposed to clients by name on an attorney’s web6) 825-9952 F/ (916) 525-8446Joe@GenshleaLaw.com Professional Conduct 3-100, permits protect?

According to the State Bar’ s site requires the client’s prior consent.

O/ (916) 525-8444 C/ (916) 825-9952 F/ (916) 525-8446 only to allow the revelation Standing Committee on ProfessionCalifornia’s rules don’t go that far, but it 5814 exception www.genshlealaw.com of confidential information the attoral Responsibility and Conduct (COstill is a sensible practice. And clearly, 400 Capitol Mall / Suite 1750 / Sacramento, CA 95814 www.genshlealaw.com ney reasonably believes “is necessary PRAC), “[c]lient secrets means any if the client does not wish his or her Tom Wagner - SCBA 2015 Sacramento Public Law Library to prevent a criminal act that the atinformation obtained by the lawyer County name used, the attorney is duty-bound torney reasonably believes is likely during the professionalSCBA relationship, 2015 to respect that wish. to result in death of, or substantial or relating to the representation, which Posting or commenting online bodily harm to, an individual.” The the client has requested to be inviolate about real clients can be dangerous even Half Page Ad: courts have further expanded the exor the disclosure of which might be emif the client is not specifically named in Joe Genshlea Law and Mediation ception to include revealing confidenbarrassing or detrimental to the client.” the post, comment, or blog, if his or her September/October 2013 issue tial client information to the attorney’ s (Cal. State Bar Formal Opn. No. 1993identity can be determined from other MAGAZINE 163px -163px Banner Ad own attorney (who is subject to the 133.) This goes far beyond the duty to sources. The Model Rules of ProfessionMAGAZINE 1/8and page Ad in mal- protect confidential client communicasame standard restraints) al Conduct in effect in some form in all the year, Real Estate sLitigation, u Lawyer of California attorney’ failure to

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ETHICS other states address this specifically in Comment [4] to Model Rule 1.6, stating that the prohibition against revealing client confidential information “also applies to disclosures by a lawyer that do not in themselves reveal protected information but could reasonably lead to the discovery of such information by a third person.” An Illinois public defender who used first names, case numbers, and similar easily-defeated devices to “disguise” the identities of her clients in unflattering blog posts was suspended from practice for 60 days and, more importantly, was fired for violating her clients’ confidentiality. (See In re Peshek, M.R. 23794 (Ill. May 18, 2010).)

Although California does not have this specific rule and currently is not considering its adoption, the concept is so clearly consistent with case law and practice that a prudent attorney should consider it a given.

But what if the comments are about a former—not a current—client? California has an abundance of case law indicating that both the duty of confidentiality and the related duty of loyalty survive the termination of the professional relationship. (See Wutchumna Water Co. v. Bailey (1932) 216 Cal. 564; In the Matter of Johnson (Rev. Dept. 2000) 4 Cal. State Bar Ct. Rptr. 179; Dixon v.

State Bar (1982) 32 Cal.3d 728; and Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, among others.)

Any doubt about the matter should be resolved very soon. The commission created by the State Bar to overhaul California’s Rules of Professional Conduct on an expedited timetable basis has recommended that California adopt a version of Model Rule 1.9, that specifically will prohibit the use or revelation of information protected by Business and Professions Code section 6068(e) and Rule 1.6 (formerly Rule 3-100) acquired by virtue of the representation of the former client to the disadvantage of the former client except as these Rules or the State Bar Act would permit with respect to a current client, or when the information has become “generally known.”

What does “generally known” mean? The proposed rule does not define the term, except by describing in Comment [3] what it is not: “The fact that information can be discovered in a public record does not, by itself, render that information generally known.” By example, the rule cites to In the Matter of Johnson, supra, 4 Cal. State Bar Ct. Rptr. 179, in which a client’s prior criminal conviction, although publicly available information, was still held a client secret because it could be found only through effort and research.

In 2000, the Restatement (Third) of Law Governing Lawyers section 59 attempted to establish a guideline be-

tween information that was “generally known” and that which merely is publicly available, saying that the distinction “depends on all circumstances relevant in obtaining the information...

Information is not generally known when a person interested in knowing the information could obtain it only by means of special knowledge or substantial difficulty or expense.” In a world where anyone is capable of initiating a detailed web search for free, and even public database searches for criminal records, lawsuits, and similar information which used to be available only to those with special expertise and resources easy and inexpensive, there does not seem to be a lot this standard would exclude any more, and new criteria may need to be developed.

Finally, another potential pitfall for attorneys lies in responding to negative online reviews posted by clients or former clients. Although there is general consensus that public response by a lawyer to such a review is not per se improper, there is clear consensus that the response must not disclose any confidential information without the former client’s consent, it must not violate the attorney’s duty of loyalty to the former client, and it must be proportionate and restrained. (See Los Angeles County Bar Association Formal Opinion No. 525 and Bar Association of San Francisco Formal Opinion No. 2014-1.)

ANNOUNCEMENT FROM THE COURT

Departments 53, 54, and 59—the law & motion and settlement conference departments—are moving to the old Hall of Justice Building, at 813 Sixth Street. The judges and staff, plus entrance screening, are all moving. The first day of court and settlement conferences in the new location will be September 19th. ★ All law & motion filings must be made in the new location. ★

Google Map Data

The Law & Motion and Settlement Conference Departments Are Moving

www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

11

FEATURE ARTICLE

Carol Delzer is a Certified

An Introduction to Collaborative Divorce

Family Law Specialist, Licensed Marriage Family Therapist, and author of Divorce Done Easier and Collaborative Co-Parenting.

She can be contacted at carol@ familylawcenter.us.

by Carol Delzer

P

sychiatrists and psychologists will tell you that divorce is one of life’s greatest stressors. Psychological studies put divorce right up there with death of a loved one or a critical illness in terms of the havoc it can wreak emotionally, financially, and physically on a divorcing party.

There are now many more options available to a divorcing couple beyond the traditional litigated family law court process. Collaborative divorce is one of the options.

The goal of collaborative divorce is to allow a divorcing couple to resolve their conflict in a compassionate, meaningful, and respectful manner without going to court. To do this, the parties must agree to make good faith efforts to explore op-

12

tions central to the divorce process in an environment that allows both parties to feel heard. In addition, everyone, including the parties’ attorneys, must commit to resolving the parties’ differences in an acceptable manner, in an environment that is creative and solution oriented, without the threat of litigation. In other words, everyone promises to work toward a settlement without going to court.

A typical collaborative divorce team consists of two collaborative attorneys, a divorce communication coach (usually one for each party), and a joint neutral financial specialist. If children are involved, a child specialist is included to develop the collaborative co-parenting plan. The purpose of the collaborative team is to provide emotional support

SACRAMENTO LAWYER | September/October 2016 | www.sacbar.org

for both parties, legal information, settlement guidance, and also to assist the parties in creating a mutually beneficial agreement. The team also works to prevent any biases on either side. If at any time the parties decide to litigate, the collaborative team disqualifies themselves in order to avoid potential conflicts of interest.

Usually, the first duty of the team is to review guidelines and set ground rules. Then, the team gathers and exchanges information. The collaborative joint effort of gathering and exchanging information has the ability to make or break the collaborative case. The more forthcoming with financial information both parties are, the greater likelihood of success. If one party or attorney with-

Joe@GenshleaLaw.com O/ (916) 525-8444 C/ (916) 825-9952

Mall / Suite 1750 / Sacramento, CA 95814

holds information, they jeopardize the entire collaborative process.

Once the information gathering stage is complete, the team, including the parties, explores different settlement options based on the interests of and Mediation the parties. After identifying possible 2013 issue settlement solutions, the team helps the parties determine and choose the solutions that work best for them. Throughout the process, the team prepares the parties’ family mandatory divorce documents and helps them reach stipulated temporary court orders when needed.

All of this is done through informal discussions and settlement conferences with the parties and their team. The collaborative attorneys prepare the parties’ final marital settlement agreement for approval. Once the agreement has been reviewed, the parties and attorneys final signing. ack to schedule (916) a564-3787 Parties who decide to go through the ck to Mary Burroughs collaborative process reap many benefits. ughs@sacbar.org The collaborative process provides the family with more resources, information, and support than other divorce process options. It allows the parties to have a conversation with each other, remain in control of their divorce, and tailor their divorce outcome to their needs—all while keeping their information private.

It also provides the parties’ children with a voice and allows the parties to preserve their relationship. Finally, it minimizes or eliminates the negative economic, social, and emotional impacts that occur in many family law litigation cases.

Is a collaborative divorce faster and less expensive? Ideally yes, but not necessarily. Collaborative divorce is about moving the family through this crisis in a more compassionate way for the sake of the children’s and the parties’ emotional well-being.

I have witnessed the benefits of the collaborative divorce process not only on families, but also on family law attorneys who adopted this collaborative divorce philosophy and way of being a family law attorney. I have watched collaborative attorneys change the way they interacted. They have become more focused

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on problem solving and settling the case rather than “she said this” or “he said that.” In these problem solving negotiations, attorneys become less stressed and more creative – what a concept!

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www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

13

Summer D. Haro is an

SECTIONS & AFFILIATES

Solo/Small Practice Division: Helping Your Small Firm Succeed by Summer D. Haro Upcoming Fall Events The SCBA’s Solo/Small Firm Practice Division (SSPD) has had fantastic

attendance and participation at all of its events, and great support from the SCBA’s members and sections. The

attorney with Goodman & Associates and the Chair of the Solo/Small Firm Practice Division. She can be contacted at suharo@goodman-law.com.

SSPD looks forward to even more involvement as the year continues.

This Fall, the SSPD will be busy hosting fun and exciting events. First, the SSPD is working on another fantastic ethics/competency MCLE for October at the SCBA Office, with great food, great speakers, and the opportunity to continue building those referral and mentorship networks.

On November 1, 2016, the SSPD will hold its Annual Meeting with its Fall Meet & Greet at the great local business, University of Beers, in MidTown Sacramento. The SSPD’s Meet & Greets are a lot of fun, and attended by a wide-range of practitioners.

Keep checking the SSPD website for more information on those events at http://www.sacbar.org/solosmall-practice.html.

Membership and Elections for SSPD Board The SSPD’s first election for its Board is coming up. There are a total of 10 Board seats, and five are open for election this year, including positions for Co-Chair, Co-Secretary, and Co-Treasurer. Nomination forms will be e-mailed to SSPD Members in early September, and ballots will be e-mailed in early October. The SSPD’s 2017 Board members will be introduced at the Annual Meeting on November 1, 2016.

For those interested in being on SSPD’s Board, or nominating someone else to be on it, make sure you are an SSPD member by registering through the SSPD’s website at http://

14

SACRAMENTO LAWYER | September/October 2016 | www.sacbar.org

SECTIONS & AFFILIATES

Legal Services of Northern California’s www.sacbar.org/solosmall-practice. html. Membership is free, and the only requirement is that the attorney or law student, be a member of the SCBA and in a firm with four or fewer attorneys.

Celebration and Fundraiser September 29, 2016 5:30 - 8:00 PM

Join Mayor-elect Darrell Steinberg and Legal Services of Northern California (LSNC) at LSNC’s 60th anniversary celebration as we celebrate 60 years of service to Northern California’s low income community.

Since 1956, LSNC has been working to ensure access to justice for low income Northern Californians. As a non-profit legal aid organization, LSNC provides free legal advice and advocacy to tens of thousands of clients every year.

Sponsorship The SSPD is appreciative of this year’s sponsors, Capitol Digital & Califorensics, LexisNexis, Paychex, and Pacific Workplaces. If you, or your business, are interested in sponsoring the SSPD for next year please contact eriksen@meriksen.com for more information.

Please join us on Thursday, September 29th for live music, drinks, hors d’oeuvres, and help us recognize and thank our donors, supporters and local law firms who have helped us fight poverty since 1956.

• • • •

Abbott & Kindermann LLP Archer Norris Bartholomew & Wasznicky, LLP Bartkiewicz Kronick & Shanahan Best Best & Krieger LLP Boutin Jones, Inc. CA Dept. of Veterans Affairs California Dept. of Human Resources California Farm Bureau Federation Carothers DiSante & Freudenberger LLP Chang Ruthenberg & Long PC Cook Brown, LLP Cuneo Black Ward & Missler Daponde Szabo Rowe PC Day Carter & Murphy LLP Delfino Madden O’Malley Coyle Koewler Diepenbrock Elkin LLP Downey Brand, LLP Dreyer Babich Buccola Wood Campora, LLP Ellison Schneider & Harris LLP Evans Wieckowski Ward & Scoffield, LLP Fagen Friedman & Fulfrost LLP Farmer Smith & Lane LLP

$60 Individual Ticket

For Event and Ticketing Information Text LSNC60 to 51555 or Visit www.lsnc.info/lsnc-60/

100% SACRAMENTO COUNTY BAR CLUB ASSOCIATION • • • • • • • • • • • • • • • • • • •

Antiquité Maison Priveé 2114 P Street Midtown Sacramento

Questions? Contact LSNC at 916-551-2164 for assistance.

SCBA 100% Club firms are firms with five or more attorneys with 100 percent membership in the SCBA. We thank these firms for their generous support through their membership dues. If your firm would like to be added to the list of SCBA 100% Club Firms, contact the SCBA staff today.

• Felderstein Fitzgerald Willoughby & Pascuzzi, LLP • Goodman & Associates • Greenberg Traurig • Gurnee Mason & Forestiere, LLP • Hanson Bridgett LLP • Hansen Kohls Sommer & Jacob, LLP • Hardy Erich Brown & Wilson • Hefner Stark & Marois, LLP • Jacobsen & McElroy, PC • Johnson Schachter & Lewis • Kennaday Leavitt PC • Klinedinst, PC • Knox Lemmon & Anapolsky • Kronick Moskovitz Tiedemann & Girard • Langenkamp Curtis & Price, LLP • Lauria Tokunaga Gates & Linn, LLP • Legacy Law Group • Littler Mendelson PC • Longyear O’Dea & Lavra LLP • Matheny Sears Linkert & Jaime LLP • Mastagni Holstedt, A.P.C. • Meegan Hanschu Kassenbrock • Murphy Austin Adams Schoenfeld LLP • Nossaman LLP

• • • • • • • • • • • • • • • • • • • • • • • •

Olson Hagel & Fishburn LLP Palmer Kazanjian Wohl Hodson LLP Pillsbury Winthrop Shaw Pittman LLP Pioneer Law Goup LLP Porter Scott Radoslovich Parker, PC Randolph Cregger & Chalfant LLP Rediger McHugh & Owensby LLP Remy Moose Manley, LLP Renne Sloan Holtzman Sakai LLP Rothschild Wishek & Sands LLP Schuering Zimmerman & Doyle LLP Simas & Associates Somach Simmons & Dunn Singer & Associates Law Office Spinelli Donald & Nott Stoel Rives, LLP Thomas Law Group Timmons Owen Jansen & Tichy, Inc. Wagner Kirkman Blaine Klomparens & Youmans, LLP Webb & Tapella Law Corp.

Weintraub Tobin Wilke Fleury Hoffelt Gould & Birney LLP­ Woodruff O’Hair Posner & Salinger, Inc.

www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

15

BARRISTERS’

Caroline Colangelo is the 2016

Barristers’ Club Update

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

by Caroline Colangelo

Mark Ellinghouse, Meg Wilson, & Alexa Greenbaum socialize at the Barristers’ Annual Summer Associates Reception

Anthony Bento & Adriana Cervantes are all smiles at the Barristers’ Annual Summer Associates Reception

Barristers’ Club Update – 24th Annual Summer Associates Reception a Huge Success Local judges, practitioners, summer associates and law students convened at the Park Ultra Lounge on July 21, 2016, at the 24th Annual Summer Associates Reception. The event honors the Diversity Fellowship Program and its participants. The program is a coordinated effort among the SCBA, local law firms, Pacific McGeorge, and UC Davis School of Law to promote and increase diversity in area law firms, and demonstrates that commitment

16

SACRAMENTO LAWYER | September/October 2016 | www.sacbar.org

Eric Brenneman, Ryan Yates, & CJ Grotewohl attending the Barristers’ Annual Summer Associates Reception

by providing local minority and disadvantaged students an opportunity to work in a law firm between the first and second years of law school. The Barristers were thrilled to host well over 200 people at the event this year, including a large number of local judges. Attendees enjoyed the sophisticated setting, an assortment of tasty sliders and appetizers from Cafeteria 15L and selections from the bar. On behalf of the Barristers’ Board, we thank our sponsors, as well as participating firms, for their continued support.

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• Focus Groups & Mock Trials

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The Barristers officially kicked offSIGN the summer with a social mix- DATE er at Federalist Public House on June 23, 2016. With close to 100 attendees, many new networking connections were made between current and potential club members as attendees enjoyed the venue’s private event space. The Barristers’ Club looks forward to hosting additional socials throughout the year and hopes to see you there.

Watch the Calendar for Upcoming Events Please stay tuned for additional dates for upcoming MCLE seminars focusing on alternative dispute resolution and depositions, as well as details for the Barristers’ Voting Social and Annual Wig Party. For more information about the Barristers’ Club of Sacramento, please e-mail sacbarristers@gmail.com to add your name to our email list.

CONGRATULATIONS Hon. Michael G. Virga

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17

COVER STORY

2016 JUDGE OF THE YEAR

I

Presiding Justice Art Scotland (ret.) is Of Counsel, Nielsen Merksamer. He can be contacted at ascotland@ nmgovlaw.com.

David Abbott

Extraordinarily Competent, Versatile, Respected, and Humble by Art Scotland

nsightful, selfless, diligent, impartial, thorough, straightforward, organized, efficient, versatile, calm, patient, friendly, and a model judge are just some of the superlatives used by attorneys and judicial colleagues to describe Judge Dave Abbott. In the words of seasoned trial lawyer Dan Wilcoxen, Judge Abbott is “one of the most respected and popular judges ever to sit in Sacramento County, and we are lucky to have him.”

Humble is another attribute that makes Judge Abbott stand out. As criminal defense attorney Don Masu-

18

da put it, “Judge Abbott would never toot his own horn. He is as modest as he is intelligent. There is not a fairer judge on the bench and his temperament is excellent, which is why attorneys enjoy appearing before him.”

It is those qualities and more that earned His Honor the honor of being named as SCBA’s Judge of the Year 2016.

Family Tragedy Growing up in Sacramento, Dave Abbott’s life in the early 1950’s was routine. That changed when he was 10

SACRAMENTO LAWYER | September/October 2016 | www.sacbar.org

He is the glue that makes collaborative courts, including the Veterans’ Treatment Court (VTC), work.

COVER STORY

years old. His family sacrificed while his father, a claims adjuster, worked by day and studied law at night, graduating valedictorian of his McGeorge Law School class. Elation and thoughts about the future were brief because, weeks later, his father died of a heart attack. The shock and loss of security—coupled with the need to be responsible for more things than would an average 10-year-old—taught young Dave the need to be resilient, unflappable, calm, and persistent in carrying on with life.

His mother instilled in her sons the belief they could and should reach their potential through sacrifice and hard work, and to never settle for second best. She taught them to do right not wrong, to “stand up for themselves and family,” and to have the “ambition to try hard to become whatever [they] wanted to be.”

Young Dave finished high school and went to UC Berkeley “not thinking that law was his life’s ambition.” An English major because he liked to read, he supported himself and paid for his education by working in a gas station.

A Chance Meeting and Impact of the Vietnam War Undergraduate Dave’s plans became focused by two events. The Vietnam War was ramping up, and he met his future wife, Susan, who impressed him as an interesting woman with a cheerful personality. They began dating, and he decided he wanted to become a lawyer to “help people in disputes protect themselves and get a fair shake.” Knowing he would be called to serve as the war escalated, he felt the Marine Corps was the most impressive branch of the military. Thus, he enlisted and went to Officer Candidate School during the summers after his sophomore and junior years at Cal.

He applied to McGeorge when the Marines allowed him to defer active duty until after law school.

Military training had a profound effect on the young Marine. It was rigorous, physically demanding, mentally challenging and, he explained, “it contributed to everything I did after that. You learn to persevere through difficult situations and nothing is really that bad. You learn to be flexible, that things are always changing, and

Marine Corps, Camp Pendleton, 1975

you must be adaptable and ready for what is next. It was great training for a future trial lawyer and trial judge.”

While attending McGeorge School of Law, he married Sue and worked in the law office of a sole practitioner while waiting for bar results. Successful on the exam, he reported for infantry platoon commander training, followed by Judge Advocate training, then assignment to Camp Pendleton where he prosecuted criminal cases.

Soon after their first of three sons was born, Captain Abbott was sent to Oki-

nawa as a defense attorney, taking Sue and their son with him.

Remarkable Reputation in Private Practice Upon completing his military commitment, he was hired by attorney Ed Freidberg as a plaintiff’s lawyer in medical and legal malpractice actions and quickly developed a positive reputation. Plaintiffs’ lawyer Noël Ferris described then-colleague Dave Abbott as a “thorough, creative, and hardworking lawyer” whose “practice flourished not only because he was a terrific lawyer, he was highly respected by the bench and bar. His word was his bond. He taught me the importance of integrity and toughness, and how those qualities were not self-cancelling.”

Another gifted plaintiffs’ attorney, Bob Buccola, said Abbott “was meticulously prepared and a lawyer who knew the law well. He had a flawless reputation as a practitioner of integrity and a real workhorse for his clients.”

Business attorney Tom Knox also recalls him as “a lawyer whose commitment to honesty and forthrightness was unquestioned. If Dave Abbott gave you his word, you could take it to the bank.” This sentiment was echoed by defense counsel Jim Anwyl, who said Abbott was “an extraordinarily competent attorney who dealt with his cases in an honest, straightforward and highly ethical manner. You always could trust his actions and words.”

During 28 years of practice with various partners and then on his own, Abbott maintained his stellar reputation as a skilled, likeable, and successful trial attorney with integrity and civility—as reflected by his induction in 1994 into the American Board of Trial Advocates, comprised of plaintiffs’ and defense counsel with extensive jury

www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

19

COVER STORY

“Judge Abbott is the epitome of who a judge should be. He is intelligent, fair, hard-working, controls his courtroom, brings no personal agenda, and treats the process of litigation with respect and dignity.”

- Pete Kmeto

“His courtesy to lawyers, parties and witnesses, and his command of the law and facts make him a judge before whom attorneys like to try cases.”

- Tom Knox

“He instills civility and calmness to the proceedings.”

- Jesse Rivera, President, ABOTA Sacramento Valley Chapter

“Judge Abbott gives attorneys the freedom to present their cases without obstruction as long as counsel stay within the confines of the law. He holds all to a high standard, is even mannered and organized, and manages his courtroom well.”

- Dave Daniels, President, Association of Defense Counsel

“Every trial attorney who has appeared before Judge Abbott respects him for his legal abilities, demeanor, and lack of bias.”

- Bob Zimmerman

20

Judge Abbott facilitating at the Encina Leadership Conference, 2015

trial experience in civil cases. ABOTA’s Sacramento Valley Chapter presented Abbott with its Civility Award in 2001.

Seamless Transition to the Bench

any better than Judge Abbott.”

Defense trial counsel Nancy Sheehan talked of Judge Abbott’s “cheerful and friendly personality. He is fair, respectful and cordial to all. If an attorney is unprepared or fails to comply with a court-imposed requirement, he makes his point firmly but not in a manner to embarrass or humiliate. All who come before him are treated equally, regardless of gender, ethnicity, race, social status, or pro se status. His courtroom is a model of efficiency.”

Trial attorney Carolee Kilduff reflected on Judge Abbott’s “strength of character. Lawyers representing diverse clients on different sides are grateful he is on the bench. He is diligent, even tempered, has a friendly and caring demeanor, keeps an open mind, and his analysis of issues is realistic, intelligent, and thoughtful.”

Encouraged by a judge to apply for the bench, Abbott was appointed Helpful Colleague and

by Governor Gray Davis in 2001. “All Presiding Judge’s Dream of his attributes as a lawyer, a brilliant Presiding Judge Kevin Culhane mind, great memory, his courtesy, abilappreciates Judge Abbott’s ability to ity to listen, great smile, and a caring handle civil matters, criminal cases, attitude, have served Judge Abbott very and the collaborative Veterans’ Treatwell on the bench,” said Dan Wilcoxen. ment Court, as well As a judge, he as his skill as a teachquickly became a faer, educating judges vorite of attorneys.

“His car is one of the from throughout the Bob Buccola noted first in the garage in the state on new develJudge Abbott “developed a well-deserved morning and the last one opments in tort law.

“Although many difreputation as one of there at the end of the day.” ficult questions were the very best judgasked, Judge Abbott - Judge Laurie Earl es. He reads and was able to answer understands every each and challenged paper submitted to the judges to think about new and difhim, has a masterful command of the ferent applications of established prinevidence code and trial facts, and is ciples.” even-balanced. From criminal trials to Prior court leaders think the same. the most complicated business, real es“In my former role as Presiding Judge, tate, and tort litigation, he handles it all I loved having Judge Abbott as part of seamlessly. From work ethic to tempermy team. He was and remains willing ament and intelligence, judges don’t get

SACRAMENTO LAWYER | September/October 2016 | www.sacbar.org

COVER STORY

to take any assignment and often volunteers for others. He handles a variety of cases with enthusiasm, thoughtfulness, and respect for litigants. He quickly transformed from a well-respected civil trial judge to a well-respected criminal trial judge. His car is one of the first in the garage in the morning and the last one there at the end of the day” - Judge Laurie Earl. “He understands intricacies of court administration, is knowledgeable in civil and criminal law, insightful, and fair” - Judge Michael Garcia (ret.). “He has tremendous insight into the challenges facing the court and is always willing to assist in reaching solutions” - Judge Tom Cecil (ret.).

Such views are shared by other court colleagues. “Judge Abbott is committed to making our court better and has consistently served as one of our leaders. I feel lucky to have him as a colleague and someone I can depend on to help me, help others, and always do the right thing” - Judge Helena Gweon. “Despite his trial schedule and duties as Assistant Presiding Judge, he was always willing and able to provide a helping hand” - Justice Elena Duarte.

“He is a judge other jurists go to for advice. Even though his background was largely civil, he knew criminal law well.

I could discuss the most complicated civil and criminal cases with Judge Abbott, and always came away impressed by his ability to dissect the most difficult issues” - Judge Troy Nunley.

Collaborative Courts and Other Good Deeds “Demonstrated service to the Sacramento community at large” is a significant criterion for Judge of the Year. At this Judge Abbott excels. He is the glue that makes collaborative courts, including the Veterans’ Treatment Court (VTC), work. Chris Carlson, VTC’s

Supervising Deputy D.A., praised Judge Abbott as “a good decision-maker who is respected by both the prosecution and the defense because he is fair.

In court, he really shines, commanding

Christmas promise, Christmas Eve, 2010

Judge Abbott even dons a Santa Claus costume each year to deliver gifts to needy families, and he puts on an apron, rather than his robe, while serving guests at lawrelated events held at the Sacramento Children’s Home Casa Garden Restaurant. the respect of every veteran. Although there were other qualified judges who served in the military, it was a no brainer, Judge Abbott was the judge we both wanted.” Ryan Raftery, VTC’s Supervising Assistant P.D., agreed. “Besides being a good judge, he is a great man.

He truly cares about those who come

before him and regularly makes the right decision.”

As Judge Judy Hersher, Judge Morrison England, and attorney/ community volunteer Pat Sturdevant pointed out, Judge Abbott’s community service extends far beyond the bench. On the steering committee of Operation Protect and Defend, he educates students about the rule of law and essential role of the judicial branch.

He meets regularly with high school students in the Justice Epstein internship program, the Encina Leadership Conference, and the Luther Burbank Criminal Justice Project. Improving literacy of elementary school students has long been his mission on the advisory boards for Reading Partners of Sacramento and the San Juan Education Foundation. Judge Abbott even dons a Santa Claus costume each year to deliver gifts to needy families, and he puts on an apron, rather than his robe, while serving guests at law-related events held at the Sacramento Children’s Home Casa Garden Restaurant.

Presiding Justice Vance Raye sums it up well, “I have always admired Judge Abbott’s dedication to the organizations he joins. He is not a nominal member; he is an active participant” in all the causes he supports.

Judge of the Year The Sacramento County Bar Association chose well in selecting David Abbott Judge of the Year 2016.

As Judge Connie Callahan observed, Judge Abbott “provides inspiration to others to achieve their personal and professional bests.” Indeed, Judge Gerrit Wood said, “We should all strive to emulate his fairness, sensitivity and commitment to litigants before him as well as the court and community in general.”

www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

21

SEPTEMBER

28th

SCBA MCLE Monthly Luncheon DATE: Wednesday,

SPEAKER: June Yu Paltzer, Ph.D., ABPP

September 28, 2016

TOPIC:

TIME:

The Role of the Neuropsychologist in Assisting the Trier of Fact and Beyond

Registration Starts at 11:40 a.m.

(Buffet Luncheon Starts)

12:00 p.m. – 1:00 p.m.

•

Gain a better understanding of how a neuropsychologist expert witness can assist the trier of fact in cases involving personal injury, questions of undue influence and capacity, as well as educational accommodations.

PLACE:

Gain an overview of current hot topics in neuroscience, neuropsychology, and neurology, e.g., concussion, dementia, autism, neuro-gaming, etc.

Reservations must be received by 5:00 pm September 23, 2016

•

$30 SCBA Members

Presentation:

The Participant will:

•

PRICING INFORMATION

SCBA Event Center

425 University Ave, Suite 120 Sacramento, CA 95825

$40 Non-SCBA Members

MCLE

1.0 Hour MCLE**

You may pay by credit card or check payable to: “Sacramento County Bar Association” mail payment and lunch selection to: Sacramento County Bar Association, Attn: SCBA Monthly Seminar, 425 University Ave, Suite 120 • Sacramento, CA 95825 or pay online at www.sacbar. org-Event Calendar. If you have any questions please contact Willow Jacobs at willow.jacobs@sacbar.org or 916-564-3780.

Gain strategies for best making use of a team of experts.

MCLE: 1.0 Hour MCLE, General Law**

Buffet Style Lunch: “Greek It Up” Lemon Basil Chicken Breast, Eggplant Parmesan, Roasted Seasonal Vegetables, Chopped Romaine Salad with Sun-Dried Tomatoes, Sliced Red Onions, Feta Cheese, Kalamata and Greek Dressing, Dinner Rolls and Dessert

YOUR NAME: __________________________________________________________________________________________________________________ COMPANY NAME: _____________________________________________________________________________________________________________ ADDRESS: ____________________________________________________________________________________________________________________ CITY: _________________________________________________________________________ STATE: ______________________ ZIP: _______________ EMAIL: ______________________________________________________________________________________________ AMOUNT: $______________ CREDIT CARD NUMBER: __ __ __ __ – __ __ __ __ – __ __ __ __ – __ __ __ __ CHECK NUMBER: _________________________ EXPIRATION DATE: ___ ___ – ___ ___

MASTER CARD

VISA

CVR CODE NUMBER: ___ ___ ___

SIGNATURE: ___________________________________________________________________________________________________________________ SCBA Monthly Seminar - September 28, 2016 *No refund will be available within 3 days of event. **This activity pending for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 unit of MCLE in the General Law Category Credit. The Sacramento County Bar Association provider #166 certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

This event is for SCBA members and invited guests. The SCBA reserves the right to refuse admission to anyone whose presence is unreasonably disruptive or who detracts from the safety, welfare, and well-being of other patrons, staff, and the establishment itself.

Sacramento County Bar Association • 425 University Ave, Suite 120 • Sacramento, CA 95825 • 916-564-3780

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fax back to (916) 564-3787 or email back to deb.roberts@sacbar.org

Thank you!

www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

23

Brian López is an attorney at Carson

SECTIONS & AFFILIATES

Immigration Law Section Coming to the SCBA

We

are pleased to introduce the new Immigration Law Section within the SCBA. Immigration law is a hot and controversial topic, especially in this year’s election cycle, and immigration lawyers work with attorneys from many other areas of the law.

Although considered federal law, immigration law can also be materially affected by state and local laws. Immigration law often intertwines with many other legal areas such as, but not limited to, criminal law, family law, and business law. For instance, a criminal defendant who is not a U.S. citizen may require a defense or plea different from that of a U.S. citizen. Sometimes, an offer that is good from a criminal de-

& Kyung, A Law Corporation. He can be contacted at briananthonylopez@gmail.com.

Chien-Yu Michael Wang is the Managing Attorney at the Sacramento office of Wilner & O’Reilly, APLC. He can be contacted at mwang@wilneroreilly.com.

by Chien-Yu Michael Wang and Brian López

fense perspective is detrimental to an immigrant from an immigration law perspective. Even misdemeanors that do not yield any jail time can trigger deportation from the U.S. Family law can also intertwine with immigration law, as divorces and annulments can hinder immigration processes. Adoptions and guardianships can extend immigration benefits to certain vulnerable populations, such as abused, abandoned, or neglected undocumented youth.

Business attorneys representing foreign nationals doing business in the U.S. must not only consider the best business advice for taxes or finances, but also consider what is best for their workforce in terms of immigration vi-

sas. From individuals to Fortune 500 companies, immigration law is relevant. Immigration law is also always evolving and is expected to have big changes after this year’s election, regardless of the outcome.

The goal for the Immigration Law Section is to provide a resource for all legal practitioners who have primary and/or ancillary immigration issues within their practice. The section will host MCLE events, including luncheons on the latest immigration updates and other topics, and will foster meaningful relationships with the other sections of the SCBA. For more information and/or to join this section free for the rest of this year, please call the SCBA office.

SACRAMENTO COUNTY BAR ASSOCIATION

IMMIGRATION LAW SECTION For more information and/or to join this section free for the rest of this year, please call the SCBA office. 916.564.3780

24

SACRAMENTO LAWYER | September/October 2016 | www.sacbar.org

California Lawyers for the Arts and Sacramento County Bar Association Seminar

TOPIC:

Date: Wednesday,

Copyright Law: an overview

Please join us as attorney Steve Davis presents and overview of copyright law. Topics include: what is copyright; international copyright, how to copyright your work; what does copyright protect; pictorial, graphic, and sculptural works; sound recordings; what rights are secured for copyright owners, co-ownership, collective work and much more.

SPEAKER:

September 28, 2016 tiMe: Registration with Drinks and Appetizers 6:30 pm Presentation:

6:45 pm – 7:45 pm Q & A Social til 8:00 pm

pLaCe:

Stephen DaviS

Mr. Davis is partner at the law firm of Davis and Leonard LLP. His practice encompasses copyright, trademarks, trade secrets, unfair competition, the Internet and e-commerce, and art law, as well as general business formation, finance, and operations. His practice is equally divided in these areas between transactional work, including advice, registration, and drafting contracts, and litigation. Steve has been an active lecturer on a variety of topics including intellectual property law, the Internet, and art law. Steve is a former Chair of the Intellectual Property Law Section of the Sacramento County Bar Association.

SCBA OFFICE

priCing inForMation $30 SCBa Members $40 non-SCBa Members

425 University Ave, Suite 120 Sacramento, CA 95825 Reservations must be received by 5:00 pm September 26, 2016

MCLE

1 hour MCLe** general Law

You may pay by credit card or check payable to: “Sacramento County Bar Association” mail payment and lunch selection to: Sacramento County Bar Association, Attn: CLA and SCBA Seminar, 425 University Ave, Suite 120 • Sacramento, CA 95825 or pay online at www.sacbar. org-Event Calendar. If you have any questions please contact Willow Jacobs at willow.jacobs@sacbar.org or 916-564-3780 CLA members register at www.calawyersforthearts.org

Drinks and Appetizers will be provided.

YOUR NAME: _________________________________________________________________________________________________________________ COMPANY NAME: ____________________________________________________________________________________________________________ ADDRESS: ____________________________________________________________________________________________________________________ CITY: _______________________________________________________________________ STATE: ______________________ ZIP: _______________ EMAIL: _____________________________________________________________________________________________ AMOUNT: $______________ CREDIT CARD NUMBER: __ __ __ __ – __ __ __ __ – __ __ __ __ – __ __ __ __ CHECK NUMBER: ________ EXPIRATION DATE: ___ ___ – ___ ___

MASTER CARD

VISA

CVR CODE NUMBER: ___ ___ ___

SIGNATURE: __________________________________________________________________________________________________________________ CLA and SCBA Seminar - September 28 2016 *No refund will be available within 5 days of event. **This activity pending for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 unit of MCLE in the General Law Category Credit. The Sacramento County Bar Association provider #166 certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

This event is for SCBA members and invited guests. The SCBA reserves the right to refuse admission to anyone whose presence is unreasonably disruptive or who detracts from the safety, welfare, and well-being of other patrons, staff, and the establishment itself.

Sacramento County Bar Association • 425 University Ave, Suite 120 • Sacramento, CA 95825 • 916-564-3780 www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER 25

FEATURE ARTICLE

Legal Malpractice Insurance 101 for Solo and Small Practice Lawyers by Betsy S. Kimball

L

awyers in small or solo practices face practice management issues. A common one is whether the buy legal malpractice insurance. Here is some basic information for “you,” the solo or small practice lawyer.

“What does a malpractice insurance policy do for me?”

Four things: (1) it provides indemnification, i.e., pays claims, (2) it provides a defense of claims, i.e., a lawyer to defend you, (3) it provides a sum of money to hire a lawyer to assist if you get a letter (or worse) from the Bar, and (4) it enables you not to have to disclose to clients that you are uninsured (see Rules of Prof. Conduct 3-410).

Randy Gust, Vice President, Ahern Insurance Brokerage, notes that “additional benefits may include subpoena assistance, loss-of-earnings reimbursement, retirement tail options, and free MCLE.” Gust adds, “Many policies offer valuable risk management tools such as risk management websites where firms can find form letters and risk management check lists for their practice. Some carriers also offer a free risk management hotline where firms can speak to a designated attorney that specializes in legal malpractice to discuss potential risks for their firms to better protect themselves.”

“Are all policies the same?”

At the solo and small firm level, there are few policy provisions that can usually be negotiated. These include: (1) the indemnity limits (per claim and annual aggregate), (2) the amount of the deductible, and (3) coverage for “prior acts,” meaning pre-policy acts/omis-

26

sions on which a claim is made during the policy period. Policies vary regarding choice of counsel to defend a claim.

Some allow the insured lawyer the choice of defense counsel (to work at “panel” counsel rates), some allow the choice of any “panel” counsel, some do not allow any choice, and some few will write a choice-of-counsel endorsement for an additional premium.

Most, but not all, policies have a “consent clause,” i.e., the carrier cannot settle a claim without the insured’s consent. A few carriers will write a consent endorsement for an additional premium.

All policies have “eroding limits,” i.e., after the deductible is exhausted, every dollar paid for the “claim expense” reduces dollar-for-dollar the indemnity limit (the amount available to pay the claim). For example, if the policy limit is $100,000, the deductible is $5000, and the amount paid to defense counsel is $15,000, there will be $90,000 left on the policy to settle or pay the claim.

A few carriers have a “claim expense” sum—usually $50,000—that does not erode the policy limit; some sell that as an extra benefit.

Policy “exclusions” can vary. Randy Gust advises small firms to watch out for a “suit for fees” exclusion (excluding coverage for a claim if it is related to a counter-claim that arises from the firm suing a client for fees), a securities exclusion (excluding any claims arising from securities work), and an IP exclusion (excluding coverage for claims that involve any IP work). Gust warns, “The IP exclusion is particularly important for small firms to pay attention to if they dabble in IP work, even if it is not a major part of their practice.”

SACRAMENTO LAWYER | September/October 2016 | www.sacbar.org

Betsy S. Kimball is a certified specialist in legal malpractice law. Until this year, she served on the California Bar’s oversight committee for its sponsored LPL program.

Virtually all policies now have a “discipline” benefit, a fixed sum available to pay the fees of counsel if the insured lawyer has a Bar inquiry or complaint. The amount of this benefit varies a lot, depending upon the carrier. All it takes is one complaining client to generate a letter from the Bar, so this is a nice (and little known) benefit.

“Why shouldn’t I buy the cheapest available policy?”

The cheapest available policy may be fine—or not. Ask yourself what you are buying. Any carrier can pay a claim, but (in the author’s opinion) not all carriers provide the same level of claim or lawsuit defense. Some carriers will push to settle the claim— regardless of merit (feelings, “right & wrong,” etc.)—for any amount less than it will cost to defend the claim.

Other carriers are more oriented to “customer service.”

Some carriers have been insuring California lawyers for years. For example, Lawyers’ Mutual sells only in California and has been in business for 38 years. The California Bar has sponsored a legal malpractice insurance program for over 20 years, and some affinity and local bar associations also sponsor well established programs.

Sometimes new carriers will enter the California market and price policies 10 or even 20 percent below the market.

It can be hard to pass up a carrier offering a premium thousands of dollars lower than the others. Randy Gust warns, however, that one risk “of going with a carrier that may be 20 percent below the market on its pricing is that those carriers do not seem to last

FEATURE ARTICLE long in the market, as they either have to start increasing their rates to keep up with claims or they end up leaving the market prematurely. If a carrier

abruptly leaves the market, this can leave the law firm looking for a new carrier and compromising its continuity with one carrier.”

It is nice to save money on premiums; but “legacy” carriers do have their benefits. Best advice: Do your homework before you buy.

Special Programs for Recently Admitted, Solo Lawyers Some carriers, including Lawyers’ Mutual and Arch (the carrier for the California Bar sponsored program), offer “new admittee” policies. Richard O’Regan, Principal, Mercer Health & Benefits Insurance Services LLC, describes Arch’s program. “To qualify for Arch’s New Admittee Program a lawyer must purchase coverage within one year of being admitted to the Bar and be in solo practice. The lawyer cannot have any practice in the areas of Intellectual Property, Secured Transactions, Securities or Municipal Bonds.” O’Regan further notes, “The New Admittee policies include full prior acts coverage.

This is included under the assumption that there is limited prior acts exposure. The policies are written with a $1,000 deductible, and the first year’s premiums are very reasonable.”

The current annual premium for $100,000/$300,000 of coverage is $675, and the annual premium rises to $1,148 for $500,000/$1,000,000 of coverage. “The $675 premium needs

to be paid in full, but the premiums for higher limits can be paid over nine months with minimal interest based upon a 10 percent down payment,” reports O’Regan. Arch’s “New Admittee” program “is a five-year track before Arch moves the lawyers to the standard program. Due to the increased prior acts exposure, the premium doubles the first two years on renewal.” Although most of the premium savings are in the first two years, a new lawyer can enjoy significant premium savings over the five-year program track.

Lawyers’ Mutual offers its “Strong Start Program … designed to provide extremely affordable and easy-to-apply-for coverage for lawyers who have been licensed 3 years or less and are practicing solo.” Lawyers’ Mutual provides detailed information about this program, including premium costs over the three-year program, on its web page, at http://www.lmic. com/policies_offered/strong_start_program.

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

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www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

27

Peter Min-su Kyung is

ANNOUNCEMENT FROM THE SCBA

the 2017 Chair of LRIS and an attorney at Carson & Kyung, A Law Corporation.

He can be contacted at pkyung@carsonkyung.com.

Invitation to Join the Lawyer Referral and Information Service, and Possible Changes Ahead by Peter Min-su Kyung

F

or over 50 years, the SCBA’s Lawyer Referral and Information Service (LRIS) has been serving the Sacramento community by referring individuals seeking legal assistance to its qualified panel-member attorneys. The LRIS welcomes you to join if you are looking to take on more clients, particularly if you practice family law or probate and estate planning law. It is free to join for SCBA members. The LRIS welcomes referrals as well, so if your practice is overwhelmed with cases or you are looking to refer a case to an attorney and cannot find the right one, please send the case our way and our staff will find the right attorney for the job.

You may have heard that the Los Angeles County Bar Association began offering flat-rate legal services for a limited number of cases, such as simple uncontested divorces, corporate and LLC formations, and trademark registrations.

This was a move made in response to remain competitive

with the online companies that offer consumers with similar low-cost legal services.

The SCBA LRIS committee has been considering implementing a similar program after monitoring the LACBA’s success. The LRIS is also considering adjusting its referral fee for some or all of its practice areas in an effort to compete with certain online companies offering referrals for free.

In the coming months, the LRIS panel-member attorneys will be encouraged to respond to a survey on these topics to see whether the LRIS should execute these changes. We are hopeful that these potential changes to our program will help our panel-member attorneys grow their practices and the Sacramento community overall by providing greater access to legal help.

If you would like to join the LRIS or send a case over, please contact the SCBA office.

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SACRAMENTO

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SAN DIEGO

SACRAMENTO LAWYER | September/October 2016 | www.sacbar.org

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SAN FRANCISCO

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WEST LOS ANGELES

SCBA FOOD FROM THE SAC BAR

FOOD DRIVE 2016 Thank you for participating in the 2016 SCBA Food From the Sac Bar – Food Drive!

We surpassed our goals with 5073.00 Pounds of Food and $11,309.25 Cash Donations.

This will feed 153 kids, three meals a day for 12 weeks over the summer months.

RUNN

CYC G L IN

ING LK

G IN

WA

Thank you from the Sacramento County Bar Association

ATER W

Hail the Victors!

SACRAMENTO COUNTY BAR ASSOCIATION

VIRTUAL BAR GAMES 2016

SCBA EVENT CENTER Themed MCLE luncheons / mixers and great food at the SCBA Event Center

www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

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Alana Mathews is the

SUPPORTED ORGANIZATIONS

Summer Institute in Energy Law and Policy Moves Florin Law Academy Students to Action by Alana Mathews

F

lorin High School Law Academy students participated in the second annual Summer Institute in Energy Law and Policy, hosted by the California Energy Commission July 1-15, 2016. The program offered 12 rising seniors an opportunity to engage with policymakers and stakeholders to learn about key energy issues while exposing them to various career opportunities in the energy sector. Thanks to a generous grant from the Sacramento Law Foundation, students were provided transportation to and from the program, free lunch, and a small stipend for their internship hours.

The students started each day with a journaling exercise and group discussion on various energy topics. They met with each of the five Energy Commission Commissioners, with Governor Jerry Brown’s energy advisors, and with the Environmental Justice Secretary at the California Environmental Protection Agency. They also toured the California Independent System Operator facility in Folsom. Each student was tasked with analyzing Senate Bill 350 (SB350), which increases California’s renewable

30

SACRAMENTO LAWYER | September/October 2016 | www.sacbar.org

Public Adviser, California Energy Commission. She can be contacted at Alana.

Mathews@energy.ca.gov.

energy and energy efficiency goals from 33 percent to 50 percent by 2030. The students focused on identifying barriers to renewables, energy efficiency and weatherization investments, and small business contracting opportunities in disadvantaged communities across the state. In an effort to directly help their own community, the students took their assignment a step further and decided to create the “SenateBill350” Instagram page to post inexpensive ways people can weatherproof their homes, increase energy efficiency, and save money on their energy bills.

The highlight of the program was the students’ final project presentation where they outlined a plan to request funding for energy efficiency upgrades, install solar panels, and build an electric vehicle charging station at their school to inspire a community-wide movement. “This program educated me in many ways and inspired me to make a difference in my own community,” says Eric Lam. The students plan to become more active voices representatives for their school and community in the energy law and policy sector.

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www.sacbar.org | September/October 2016 | SACRAMENTO LAWYER

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OCTOBER 26th

SCBA MCLE Monthly Luncheon DATE: Wednesday,

SPEAKER:

October 26, 2016

Heather Abelson Senior Litigation Attorney and Chair of the Legal Malpractice/State Bar Defense group at Gluck Daniel LLP

PRICING INFORMATION

TIME:

$30 SCBA Members

Presentation:

$40 Non-SCBA Members

Registration Starts at 11:40 a.m.

(Buffet Luncheon Starts)

TOPIC:

12:00 p.m. – 1:00 p.m.

Demystifying the State Bar Discipline Process and How to Avoid Discipline

PLACE: SCBA EVENT CENTER

425 University Ave, Suite 120 Sacramento, CA 95825 Reservations must be received by 5:00 pm October 21, 2016

MCLE

1.0 Hour MCLE**

You may pay by credit card or check payable to: “Sacramento County Bar Association” mail payment and lunch selection to: Sacramento County Bar Association, Attn: SCBA Monthly Seminar, 425 University Ave, Suite 120 • Sacramento, CA 95825 or pay online at www.sacbar. org-Event Calendar. If you have any questions please contact Willow Jacobs at willow.jacobs@sacbar.org or 916-564-3780

MCLE: 1.0 Hour MCLE, Legal Ethics**

The luncheon this month will be buffet style:

Mesquite Grilled Tri-Tip and Chicken with BBQ Jus, Mixed Greens with Bleu Cheese, Almonds, Craisins and Honey Dijon; Roasted Potatoes, Roasted Seasonal Vegetables, Dinner Rolls and Butter, Dessert and Beverages.

YOUR NAME: __________________________________________________________________________________________________________________ COMPANY NAME: _____________________________________________________________________________________________________________ ADDRESS: ____________________________________________________________________________________________________________________ CITY: _________________________________________________________________________ STATE: ______________________ ZIP: _______________ EMAIL: ______________________________________________________________________________________________ AMOUNT: $______________ CREDIT CARD NUMBER: __ __ __ __ – __ __ __ __ – __ __ __ __ – __ __ __ __ CHECK NUMBER: _________________________ EXPIRATION DATE: ___ ___ – ___ ___

MASTER CARD

VISA

CVR CODE NUMBER: ___ ___ ___

SIGNATURE: ___________________________________________________________________________________________________________________ SCBA Monthly Seminar - October 26, 2016 *No refund will be available within 3 days of event. **This activity pending for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 unit of MCLE in the Legal Ethics Category Credit. The Sacramento County Bar Association provider #166 certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education.

This event is for SCBA members and invited guests. The SCBA reserves the right to refuse admission to anyone whose presence is unreasonably disruptive or who detracts from the safety, welfare, and well-being of other patrons, staff, and the establishment itself.

Sacramento County Bar Association • 425 University Ave, Suite 120 • Sacramento, CA 95825 • 916-564-3780

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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