San Francisco Attorney

T H E B A R A S S O C I A T I O N O F S A N F R A N CI S C O / F a l l 2 0 1 7

MOBILIZING ON ALL FRONTS TO END

Violence against Women

Two Decades of

Scholarships CURRENT AND FORMER RECIPIENTS REFLECT ON THE PROGRAM’S IMPACT

40th Anniversary of the Justice & Diversity Center

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SAN FRANCISCO C O V E R

S T O R Y

14

In the Pipeline: JDC’s Scholarship Program Promotes Local Diversity Kathleen Guthrie Woods

F E A T U R E S

(continued)

26

Forty Years at the Center of Justice & Diversity— The Third Decade:1997 to 2006

36

Mobilizing on All Fronts to End Violence against Women Erin A. Gordon

F E A T U R E S

photo by Jim Block

22

Due Process Rights Are Human Rights: JDC Is at the Center of Collaborative Rapid Response Actions to Protect Immigrants’ Rights

By JDC staff

2 FALL 2017

42

The Risky Business of Living Outside the Marriage Box Stan Sarkisov and Erin Levine

ATTORNEY A Publication of The Bar A ssociation of San Francisco

F E A T U R E S

(continued)

52

The Defend Trade Secrets Act: A Year in Review Sebastian Kaplan

FALL 2 017

C O L U M N S

6

PRESIDENT’S REPORT Make an Impact: Volunteer Your Skills and Passion to Help Change Lives Merri A. Baldwin

10

BARRISTERS CLUB REPORT Behind the Scenes at the Barristers Public Speaking Practice Group (and Tips from the Pros) Adam I. Kaplan

56

SOLO/SMALL FIRM Lessons Learned from Managing Large Multiplaintiff Lawsuits Mary Catherine Wiederhold

62

Summer of Law: Students Learn Practical Legal Skills While Making a Difference in Tenants’ Lives Erin Katayama

46

SUPREME COURT WATCH The First Amendment’s Day in the Sun

By Josh Patashnik

4

BOARD OF DIRECTORS

64

INDEX OF ADVERTISERS

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 3

THE BAR ASSOCIATION OF SAN FRANCISCO 301 Battery Street, Third Floor, San Francisco, CA 94111 phone 415-982-1600 / fax 415-477-2388 A PUBLICATION OF

The Bar Association of San Francisco

www.sfbar.org

Editorial Team Kerstin Firmin, Erin A. Gordon, John Hammett, Sayre Happich, Kathleen Guthrie Woods Design/Art Direction Sarah Davis,

Kerstin Firmin

BASF BOARD OF DIRECTORS President Merri A. Baldwin President-Elect Malcolm A. Heinicke Treasurer Doris Cheng Secretary Stuart Plunkett Board of Directors Marvin K. Anderson, David Carrillo, Sigrid Irias, Colin Kemp, Karen Kimmey, Carolyn Lee, Mary McNamara, Peter C. Meier, Theodore B. Miller, Ann N. Nguyen, Danielle Ochs, Natalie Pierce, Vidhya Prabhakaran, Jennifer Redmond, Charlene (Chuck) Shimada, William F. Tarantino, David Tsai, Sharon Woo BARRISTERS BOARD OF DIRECTORS

President Adam Kaplan President-Elect Andrew Amoroso Treasurer Natascha Fastabend Secretary John-Paul Deol Board of Directors Timothy Burr, Lauren

Young Epstein, Ben Feuer, John Hamasaki, Anjali Kulkarni, Kelly Matayoshi, Phyra McCandless, Sean McHenry, Jessica Ryland, Pierre Zado

SAN FRANCISCO ATTORNEY (ISSN 0744-9348) Volume 43/Number 3.

Published quarterly for $36 per year by The Bar Association of San Francisco, 301 Battery Street, Third Floor, San Francisco, CA 94111. Periodical Postage Paid at San Francisco, CA, and at additional mailing offices. Subscription inquiries and changes of address should be sent to San Francisco Attorney, 301 Battery Street, Third Floor, San Francisco, CA 94111. POSTMASTER: Send address changes to San Francisco Attorney, 301 Battery Street, Third Floor, San Francisco, CA 94111. © Copyright 2017 by The Bar Association of San Francisco.

All rights reserved. Reprint Requests: The Copyright Act of 1976 prohibits the reproduction by copy machine or any other means of any portion of this issue except with the permission of the publisher. For permission to photocopy or to use mate­ rial from San Francisco Attorney magazine, please contact the editor at editor@sfbar.org. Neither BASF nor the editors assume responsibility for statements or expressions of opinion by contributors to this publication.

4 FALL 2017

EXECUTIVE STAFF Yolanda Jackson Executive Director and General Counsel, The Bar Association of San Francisco; Executive Director, Justice & Diversity Center Sandra Rodriguez Chief Financial Officer, The Bar Association of San Francisco and the Justice & Diversity Center THE BAR ASSOCIATION OF SAN FRANCISCO Jack Hannan Deputy Executive Director Raquel Cabading Director of Continuing Legal Education Carole Conn Director of Public Service Programs Kerstin Firmin Director of Communication and Public Relations Bruce Keppler Director of Information Technology Leonard Lun Director of Membership Julie Traun Director of Court Programs JUSTICE & DIVERSITY CENTER Mairi McKeever Director/Managing Attorney, Pro Bono Legal Services Program Teresa Friend Director/Managing Attorney, Homeless Advocacy Project Steve Love Director of Donor and Community Engagement

SAN FRANCISCO ATTORNEY LETTERS TO THE EDITOR & SUBSCRIPTIONS phone: (415) 782-8910 / email: editor@sfbar.org ADVERTISING INFORMATION Michael Walker, National Advertising Manager phone: 213-896-9210 / email: mike@rwwcompany.com

On Our Cover Two Decades of Scholarships Our cover features three past recipients of the Justice & Diversity Center’s Bay Area Minority Law Student Scholarship Program. The program, established in 1998, has awarded more than 2 million dollars to over 95 students since its inception. Read more about the program and its recipients on page 14. photo by Jim Block

Y

AT T H E

CE

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S AR

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of the Justice & Diversity Center of The Bar Association of San Francisco

SI

TY

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40

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The Annual Gala

IC E & DIV

ER

2017 SPONSORS Arnold & Porter Kaye Scholer Arthur & Charlotte Zitrin Foundation Covington & Burling Farella Braun + Martel Fenwick & West Keker, Van Nest & Peters Kilpatrick Townsend & Stockton Kirkland & Ellis Manatt, Phelps & Phillips McGuireWoods Morgan Lewis & Bockius Morrison & Foerster Orrick, Herrington & Sutcliffe Pillsbury Winthrop Shaw Pittman Foundation Shartsis Friese Wilson Sonsini Goodrich & Rosati Foundation

S I LV E R Latham & Watkins

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ALM Media Seyfarth Shaw Winston & Strawn

THURSDAY SEPTEMBER 28

PEWTER

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JOIN US TO CELEBRATE THE IMPACT OF PRO BONO

P L AT I N U M

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8,500 Number of low­income San Francisco residents who received pro bono legal help last year, thanks to you.

O PA L

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WWW.SFBAR.ORG/GALA THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 5

PRESIDENT’S REPORT

Make an Impact: Volunteer Your Skills and Passion to Help Change Lives Merri A. Baldwin

M

ost of us went to law school to make a difference. And every lawyer’s work has an impact. The very nature of our prac­ tice is to represent clients: to advocate for them, to advise them, and, often, to be their representative, in matters that will have some sort of result or effect: that is why the clients hired us in the first place. Yet for many lawyers, their work does not always provide a high level of personal satisfaction. Other lawyers love what they do but want a different kind of expe­ rience, something more like what they expected when they went to law school.

Merri A. Baldwin

6 FALL 2017

PRESIDENT’S REPORT

The Justice & Diversity Center (JDC) of The Bar Associa­ tion of San Francisco offers every lawyer a chance to make a difference in the lives of individual people who need legal assistance and cannot afford it and who, if not for JDC, would have no place to turn. JDC provides representation both through staff attorneys and volunteers. In 2016, 1,367 attorneys volunteered with JDC, and through their efforts, enabled JDC to provide an estimated $20 million of free legal services to more than 8,500 clients in San Francisco and beyond. In addition, JDC also provides important services through its diversity programs, including support, resources, and professional development opportunities to students from middle school through law school.

I want to talk about JDC in this column for a couple of reasons. First, the JDC Gala will take place on Septem­ber 28. That event is a fun, vibrant gathering. As a bonus we hear firsthand from some of JDC’s clients and students participating in the diversity programs. The money raised at the Gala is vital to supporting JDC’s mission, and it will be great to see as many of you there as can make it.

Second, this year presents a growing need for the services that JDC provides. That means we need you. More than ever.

JDC’s legal services include free representation of lowincome tenants facing eviction, whether limited to their pretrial settlement conferences or through a full-scope representation up to and including trial; a tax clinic that provides critical assistance to low-income taxpayers who have nowhere else to turn; family law programs that provide assistance with child support, dissolution, and guardianship; legal clinics providing all manner of assistance to low-income residents of Bayview–Hunters Point, the Tenderloin, and elsewhere; and immigration representation, through JDC’s Attorney of the Day program at immigration court and through the important work of the immigration collaboratives for which JDC serves as coordinating counsel.

In addition, the Homeless Advocacy Project is located in the Tenderloin and serves both homeless people and people at risk of becoming homeless with a wide array of critical

services. And JDC’s federal pro bono project operates through the federal courts, providing representation to pro per litigants in their federal court actions.

As many of you already know, there really is something for everyone who wants to help. Thank you to the many volunteers of JDC, many of whom are stalwart supporters who volunteer again and again to help. For the rest of you who have heard about JDC, or wondered how you could do something to try to make a difference, I am asking you to make this the year that you take that step.

A quick personal story. I have volunteered with JDC through a number of its programs. One client I represented was a young man seeking guardianship of his ten-year-old niece, whose mother is mentally ill and homeless and whose father is in prison. The child’s grandmother, my client’s mother, had served as the child’s guardian until she suddenly fell ill and passed away from cancer. My client faced a few obstacles in his quest to become his niece’s guardian. First, while they had lived in San Francisco for a long time, they were being forced out of their Section 8 housing and did not know where they were going to live. Second, my client had a long arrest record, which would have to be disclosed to the judge and which could possibly affect the judge’s willingness to afford him the legal status he sought.

Stephanie Bilinski, supervising attorney of JDC’s family law program, helped me as I represented my client. He moved to another county, and, once he found housing, we filed the guardianship petition there. (For those who have never seen a guardianship petition, it is no simple prospect.

It would not be easy for someone to represent themselves in one of these matters. For this particular client, it would have been impossible.) We included the arrest record with the confidential part of the application and explained to the court that these issues were behind him; that he had not been arrested in a number of years; that he had changed his life circumstances; and that, while he had been arrested a number of times, he had never been charged.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 7

The day of the hearing on the guardianship petition, I met my client and his niece at court. Both were nervous and uncomfortable in the courthouse. I did my best to make it seem less forbidding, but a courthouse is not a safe place for many people. In our hearing, the judge was warm and friendly, and spoke directly to my client, expressing his admiration for my client’s willingness to care for his niece and the fact that he had turned his life around, and stating his belief that both my client and his niece would succeed together. All very heartwarming, and exactly what I had hoped for.

We then went down to the clerk’s office to get the executed letters that would establish his guardianship. This was not as easy as it sounds. We needed copies that we did not have; we had to take a number and wait through a long process of being called to various numbered windows; I had to find a copier and come back to the window; and then we finally got the executed papers. The cost to get the executed letters my client would need to show that he was his niece’s legal guardian, for school, medical purposes, housing? Over twenty-five dollars per copy, for necessary papers that other counties provide free of charge. Luckily, it was easy for me to pay: my firm will happily bear that expense for our client.

Good thing, since my client did not have the money that day to pay for those papers if he had had to.

Why do these details matter? Because when we represent people of limited means, there are many barriers to accessing legal resources, some obvious, some less so. As lawyers, we have the skills to handle the substantive legal issues. We also have the opportunity to make the entire process one of possibility and hope, and turn a foreboding and daunting situation into one of success. This is true in every one of the programs that JDC offers, whether through our legal representation and services or our diversity programs.

I was very happy to help my client secure the guardianship and to help that new family as they set off in their life together.

8 FALL 2017

Give back.

Change lives.

Turn to pages 32 and 33 for an overview of volunteer opportunities with the Justice & Diversity Center. Help build a fair and equal San Francisco. It starts with you.

My representation of this client was relatively straightforward and did not take a lot of time. There are many JDC volunteers who handle much harder and more complex cases that take more time and resources. Thanks to all our volunteers and staff, who make such a difference in the lives of people throughout our community. I was honored to have the opportunity to handle this matter, and know that for its relative simplicity, it made a difference. This was a victory that feels as good as any in my professional career.

See you at the JDC Gala.

Merri A. Baldwin is cochair of the Attorney Liability and Conduct Practice Group and a member of the Complex Commercial Litigation Practice Group at Rogers Joseph O’Donnell. She is a State Bar of California board-certified legal specialist in legal malpractice law. She serves as the 2017 president of The Bar Association of San Francisco and its Justice & Diversity Center.

THE BAR ASSOCIATION of SAN FRANCISCO

THURSDAY DECEMBER 14, 2017 SAVE THE DATE

Presentation of Awards of Merit Welcome to New Board Members Barrister of the Year Award Inaugural Address

Farewell Address

Barristers Club President Remarks

2018 President Malcolm Heinicke Munger, Tolles & Olson

2017 President Merri Baldwin Rogers Joseph O’Donnell

2017 President Adam Kaplan Munger, Tolles & Olson

ANNUAL MEMBERSHIP LUNCHEON & INSTALLATION OF OFFICERS

HYATT REGENCY HOTEL

Five Embarcadero Center Street Level Check-in: 11:30 a.m.–12:00 p.m.

Luncheon and Program: 12:00–2:00 p.m. $100 per person, $1,000 tables of ten To reserve tables of 10, please email cle@sfbar.org.

WWW.SFBAR.ORG/CALENDAR

THE BAR ASSOCIATION of SAN FRANCISCO

FRIDAY, OCTOBER 27, 2017 11:00 a.m. – 8:00 p.m.

TPC Harding Park San Francisco

9 TH ANNUAL

putting for the pipeline Charity golf tournament benefitting educational and diversity initiatives of The Bar Association of San Francisco and the Justice & Diversity Center

SPONSORS

Drinker Biddle & Reath Fenwick & West JAMS Kilpatrick Townsend & Stockton

Morrison & Foerster Murphy Pearson Bradley & Feeney Pillsbury Winthrop Shaw Pittman = 40th anniversary sponsor

WWW.SFBAR.ORG/GOLF

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 9

BARRISTERS CLUB REPORT

Behind the Scenes at the Barristers Public Speaking Practice Group (AND TIPS FROM THE PROS)

I

Adam I. Kaplan

t’s amazing that presenting in front of just five or six people and a video camera can be so nerve-racking. Thankfully, like public speaking in general, it gets easier each time. A number of Barristers, myself included, learned this recently by participating in The Bar Association of San Francisco’s (BASF) Barristers Club’s new Public Speaking Practice Group. The Barristers board started the group to help members develop or refine what for many is a critical, yet under-practiced skill.

Each session of the practice group—which was developed and led by board members Sean McHenry, Minnis & Smallets, and Jessica Ryland, Lewis Brisbois Bisgaard & Smith —begins with a presentation by a seasoned public speaker. After learning tips from the pros, participants split into smaller groups and take turns giving short presentations, which are timed and videotaped. As Ryland explains, the group “is meant to be a lowpressure forum for anyone to come in and practice an elevator pitch or motion argument or even tell a short story.”

Adam Kaplan

Participants get immediate feedback at the session as each of the small groups “brainstorms out loud about how a participant can, for example, better emphasize his or her point or refine hand gesture use.” Participants receive an electronic copy of their presentation so they can critique their own performance later. The program has received outstanding reviews and a number of participants have attended multiple sessions (which is welcomed, but not required).

10 FALL 2017

BARRISTERS CLUB REPORT

Jim Brosnahan Doris Cheng

Jim Brosnahan, Morrison & Foerster, a top trial lawyer and former president of both BASF and its Barristers Club, kicked off the practice group’s inaugural session in May. Here are some of his tips and reflections, as well as those of the other experts who have addressed the group so far.

Brosnahan explains that you should “practice with your voice, especially tempo and emphasis,” and encourages attorneys to record themselves. He notes that because most law schools do not teach voice training, you need to learn this on your own. To help deal with nerves, he says to “take a deep breath before starting and start slowly.” For speaking in court, Brosnahan’s top five tips are: (1) Total preparation.

(2) Try out your presentation on another human. (3) Choose your words carefully. (4) Think and rethink the structure of your presentation. (5) Deal directly with the major points against you. Brosnahan’s favorite memory of speaking in public? “The speeches I gave for Robert and John Kennedy.”

Doris Cheng, Walkup, Melodia, Kelly & Schoenberger, BASF’s treasurer and a former president of the San Francisco Trial Lawyers Association, presented at the practice group’s second session. Cheng’s top three tips on public speaking

Adam Kaplan during a Public Speaking Practice Group session

are (1) Make eye contact with your audience. (2) Project your voice so that you can be heard by the person farthest from you. (3) Avoid reading from notes. She explains, “being a good speaker comes from being a good listener.

If you are earnest in listening to others, you learn what interests people. If you understand what interests people, you understand better how to address people. Ineffective speakers are tone deaf and fail to discern when the audience is no longer interested in listening.”

Cheng explains, “most of our anxiety with public speaking manifests in our voice (pace and speed), [in] tightness in our face and hands. Tension in your face, voice, and hands will make others feel uncomfortable or less confident in your ability to handle the situation.” She offers this advice to deal with nerves: Take a few deep breaths to slow down your breathing.

Think about pacing your words by taking a breath in between every three to four words. Our natural breath stops occur after every third or fourth word. It is only when we have high stress and anxiety that we run all of our words together without a pause.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 11

Also, relax your facial muscles with a few exercises.

Imagine you are chewing an extra, extra large wad of gum. Move your jaw and mouth so that they are stretching the muscles and skin around your mouth.

Then open your mouth in an “O” shape with your eyebrows raised high, as if you are surprised. Next, open your mouth wide enough for your dentist to pull out a wisdom tooth. Stretch the muscles and skin around your eyes, cheeks, and mouth. The point of these exercises is to relax your eyes and mouth so that you can smile as you talk.

Lastly, practice talking in front of a mirror and force yourself to keep your hands open so that you are not clenching them.

Malcolm Heinicke, Munger, Tolles & Olson, BASF’s president-elect and another seasoned trial lawyer and public speaker (and former Barristers president), addressed the practice group’s third session. Heinicke offers these tips: First, he emphasizes the importance of preparation.

Whether it is for a call with a client or a hearing in court, attorneys should think about and write an outline of

what they are going to say. Heinicke explains that each presentation should be limited to just three or four key points, to keep the audience engaged. Second, and along those lines, Heinicke notes that all audiences, judges, juries, or otherwise, have limited attention spans. Third, Heinicke instructs attorneys to practice, practice, practice—in front of the mirror or with a spouse, a dog, whomever. [Thanks are in order here to Peri, my dog, who listens without complaint as I practice all sorts of presentations during our walks and runs.]

Lastly, Alameda County Superior Court Judge Tara M. Desautels shared her advice with the practice group. She focused on how shy people can excel at public speaking.

Judge Desautels explains that attorneys should own their nerves by figuring out their style and working to create an environment in which they will thrive. She says that she was always the “shy little girl at the back of the class,” explaining that she realized when she was a prosecutor that she performed best when she envisioned her role in the courtroom as that of a teacher.

Judge Tara M. Desautels Malcolm Heinicke

“Take a few deep breaths to slow down your breathing. Our natural breath stops occur after every third or fourth word. It is only when we have high stress and anxiety that we run all of our words together without a pause.”

— Doris Cheng

12 FALL 2017

Like the other presenters, Judge Desautels stresses the importance of preparation and cautions against using detailed notes or memorizing one’s speech. If you instead prepare a short list of bullet points—which you use only for reference if necessary—“it encourages you to speak from the heart. If you’re confident and know your case, you don’t need a script. The confidence you emit is what makes people believe you.”

Judge Desautels recognizes that, in a hearing, there may be fifty points the other side makes that you disagree with.

Still, she explains, you should limit your response to three to five topics. “We all know the lawyer who feels they need to keep, keep, keep talking because the longer they’re up there, the more likely they’re going to win.” That’s the wrong

attitude. “Make your key points and get out.” Finally, Judge Desautels notes, “lawyers are always concerned about saying everything exactly right. If you’re speaking honestly, truly, and genuinely, it’s a much better sell.”

It’s not surprising that each of these experts stresses that practice is the key to improving one’s public speaking skills.

The Barristers Public Speaking Practice Group offers the perfect opportunity to do just that. Stay tuned for the next session of the practice group. I hope to see you there!

Adam I. Kaplan, 2017 Barristers Club president, is a litigator in the San Francisco office of Munger, Tolles & Olson. His practice includes complex commercial litigation, copyright litigation, securities litigation, and internal corporate investigations. He can be reached at adam.kaplan@mto.com.

7th annual

FRIDAY NOVEMBER 17

Barristers Club Annual Meeting

SAVE THE DATE This full-day event gives attorneys and law students the opportunity to further their professional development, obtain CLE credit, and network with peers.

Judges Panel Hon. Angela Bradstreet San Francisco Superior Court Hon. Michelle Friedland U.S. Court of Appeal, Ninth Circuit

BASF CONFERENCE CENTER

Hon. Martin Jenkins California Court of Appeal, First District

Keynote Speaker United States Representative Eric Swalwell Representing California’s Fifteenth Congressional District

Hon. William Orrick U.S. District Court, Northern District of California For full schedule and details on CLE breakout sessions, visit www.sfbar.org/annualmeeting

301 Battery Street, Third Floor San Francisco Cost for full day: BASF Law Student Member $50.00 BASF Member $130.00 Government/Nonprofit $130.00 Nonmember $170.00 Half-day options are also available.

WWW.SFBAR.ORG/ANNUALMEETING

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 13

IN THE PIPELINE:

JDC’s Scholarship Program Promotes Local Diversity Kathleen Guthrie Woods

I

n 1998, the Justice & Diversity Center (JDC) of The Bar Association of San Francisco (BASF) awarded its first Bay Area Minority Law Student Scholarships in an effort to improve diversity in local law schools and the legal profession. Recipients were selected based on academic performance and financial need, as well as a commitment to the community. To date, the program has provided over ninety students with more than $2 million.

In 2017, four new scholarships were awarded, and each recipient will receive $30,000, divided into three $10,000 annual payments that may go toward tuition, books, rent, and other academic and living expenses. It’s an investment that makes it possible for these students to attend and excel in law school and sets them on paths to successful careers.

14 FALL 2017

The ultimate goal is to see diversity throughout the profession. “These things take more time than one would hope,” says Steve Love, JDC’s director of Donor and Community Engagement, “but we’re making progress.”

“By giving, you get to be part of advancing the goals we so treasure in this city — tolerance, acceptance, and nurturing of cultural differences and diversity.”

— Richard Zitrin

Past, Present, and Future Stories of Success Inspired by a desire to create change, Jamal Jackson (2016 recipient) chose to attend Golden Gate University (GGU) School of Law after he received his undergraduate degree in criminal justice, with a minor in environmental science, from Iona College in New York. He completed his first year, and this past summer held an internship at the Center on Race, Poverty & the Environment in Oakland where he worked on multiple environmental justice projects that addressed issues in lower-income and disadvantaged communities.

“It’s not just one person,” he says when asked whom he’d like to thank for his scholarship, “it’s everyone. They’ve all been amazing influences.”

Jackson has been accepted into GGU’s Environmental Justice Clinic for the fall.

At the time of her interview in June, Lidia Lopez (2013) had just been sworn in as an attorney—that morning! “It’s starting to feel real,” she says. “I’m owning it, I’m not dreaming.”

Before attending UC Hastings College of the Law, Lopez, who started her undergraduate studies in engineering, had the opportunity to work with tech companies in Silicon Valley. She was, and continues to be, fascinated by intellectual property law, and today she is working as an associate in a trademarking and copyright group.

“I currently love where I’m at and what I’m doing,” she says, “but I’m looking for opportunities to shape my career.” Her

Jamal Jackson

“It’s not just one person,” he says when asked who he’d like to thank for his scholarship, “it’s everyone. They’ve all been amazing influences.”

priorities include being a resource to her extended family and volunteering as an interpreter in her community.

Elva Linares (2011) was fifteen years old when she decided to become a lawyer. “I was working in the field, packing figs, doing manual labor, and I thought ‘I don’t want this

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 15

counselor with the US Department of Labor, Congressional Affairs Office, and today she is legislative counsel at the US Department of Homeland Security, Office of Inspector General. “I like what I do, preparing for congressional hearings,” she says, and she still finds time to volunteer for the Court-Appointed Special Advocate Program (CASA) as an interpreter and translator.

Jora Trang

“Without it (the minority scholarship), I could not have gone to law school, nor could I have made the impact I have over the past twenty years as an attorney.”

life,’” she says. “I wanted to go to law school to be a voice for the community and to be able to defend myself.”

She originally set her sights on a career in immigration law, then her “exciting path” took a turn into politics. While in law school, she interned with then Vice President Joe Biden and later was appointed to President Barack Obama’s administration for two years. Later she was an associate

16 FALL 2017

“The minority scholarship is not just an instrumental tool in fostering tomorrow’s social justice champions, it is essential,” says Jora Trang (1998). “Without it, I could not have gone to law school, nor could I have made the impact I have over the past twenty years as an attorney.”

Trang spent over a decade as an attorney representing clients in cases that often addressed race and gender discrimination.

“I realized there were systemic issues I could not address by representing people one at a time,” she says, and she made the shift to impact litigation when she became a senior attorney at Equal Rights Advocates in San Francisco.

Today she is managing attorney at Worksafe, a nonprofit organization that strives to prevent on-the-job injuries and empower workers to advocate for their right to safe and healthy workplaces. In 2016, she was recognized with a National Council for Occupational Safety and Health (COSH) Social Justice Award for her commitment to promoting diversity and social justice work, and she is a 2017 Wasserstein Public Interest Fellow.

After graduating from law school, Gemma Daggs (2006) started her career as a deputy district attorney in Alameda County. “I loved being a DA,” she says. “It was my dream job.” But when an “opportunity landed in my lap,” she took the leap and now is litigation counsel at Square, the company that created the ubiquitous credit card readers. A grateful scholarship recipient, she is paying it forward by providing pro bono workshops on immigration, serving on a board for a music and arts program, and partnering with the criminal justice bar to educate people on their rights.

“It’s important to serve where I live,” she says.

A refugee who came to the United States from Vietnam in the 1980s, Doan Nguyen (2004) knew at an early age she wanted to be an attorney. “I grew up helping my parents and community members access legal services and benefits,” she says. “The scholarship allowed me to focus on my studies and internships, enabled me to follow my passion of public interest work.”

Nguyen worked in a number of part-time jobs and internships, with a focus on domestic violence and immigration. Postgraduation, she worked as a JDC staff attorney, where she managed a program that helped nonprofit organizations, and as an Equal Justice Works AmeriCorps Legal Fellow at OneJustice. For the past two years, she has worked at the State Bar of California’s

Shawn Tillis

“We push and push on the door, we think we broke it down,” he says, “but it’s that someone on the other side finally opened it.”

Legal Services Trust Fund Program, which manages and distributes funds to legal aid organizations.

“The scholarship program was not just financial support,” she says. “People followed up on me, kept in touch. I had people who really believed in me.”

A five-year-old Shawn Tillis (1998) told his mom he would be a lawyer. “I wanted to be powerful, like the lawyers I saw on TV,” he says. “I was serious!” His determination to feel safe and protect others never wavered. Tragically, he was unable to protect his mother, who was murdered while Tillis was completing his law school applications. He was struggling to finance his education and attending court for his mother’s murder. “It was just too much,” he says, until he received the scholarship, funded by a donor who chose to remain anonymous.

An associate at Winer, McKenna & Burritt, Tillis serves on the board of the Alameda–Contra Costa Trial Lawyers Association (ACCTLA). In 2016, as editor of the organization’s magazine, The Verdict, he challenged readers to submit articles about improving diversity in the legal profession. “I want people to be hopeful,” Tillis says. “If you can imagine better, it pulls you up.”

Today he reflects on how the scholarship program affected him and others. “We push and push on the door, we think we broke it down,” he says, “but it’s that someone on the other side finally opened it.”

Yes, the Money Helps, and…

While the scholarship money addresses practical needs, the program also provides emotional support. “People who didn’t even know me before were cheering for me, saying, ‘You can do this! If you need us, let us know,’” Lopez says.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 17

Many of the recipients were the first in their families to attend college, and then law school, and found themselves in unfamiliar and intimidating environments. “I didn’t grow up in the legal field; it was all very new to me,” says Nguyen. JDC staff and BASF members consistently offered encouragement and advice. “It’s like having a family here in California,” says Jackson.

In recent years, recipients have been paired with mentors who answer questions and provide guidance. Often it’s as “small” as reaching out through an email or phone call, helping improve students’ writing, or inviting them to events, in the process teaching necessary skills. “Networking is hard,” says Linares. “It made me uncomfortable, talking with other people. I really didn’t know how.”

Many of those mentors became long-term fixtures in their scholars’ lives. “He not only sponsored me,” says Jackson of Richard Zitrin, “he is a friend, advisor, and mentor.” It’s had a huge impact on the students to continue to have the support of people who believed in them from the beginning, and who can help them navigate the industry as they build their careers. “As a law student, I knew what I wanted to do, but I didn’t know the journey, the challenges,” says Daggs. “It’s especially important for a female of color to have that narrative pushing you forward.” She adds, “It’s a testament to the program that I remember specific words of encouragement fifteen years later.”

Gemma Daggs

“As a law student, I knew what I wanted to do, but I didn’t know the journey, the challenges,” says Daggs. “It’s especially important for a female of color to have that narrative pushing you forward.”

Why They Give The number of scholarships available depends on how much money is donated. Some donors contribute funds from foundations or with a group, such as partners in a law firm, while others choose to give anonymously. “You helped me become who I am today,” Tillis says to his anonymous donor. “I would not have gone to law school. You tipped the scale in the other direction.”

“The financial blessing is a huge thing for people who don’t come from means,” says Daggs, and there’s a larger impact for the legal community. “Students of color and low-income

18 FALL 2017

come to law school with the desire to change the world,” says Trang, “then they are hit with ginormous loans that become a detriment to going back to their communities.”

An investment in this program raises those voices, em­ powers those future advocates and community leaders.

“The JDC program is especially effective because so much time and energy go into considering the stories of the applicants, who otherwise wouldn’t be able to go to law school,” says Stuart Plunkett of Baker Botts. “When I review applicants, I look for not just who I am helping, but who they will help in the future.”

“The issue of minority participation has always been very important to me because I don’t believe that we actually have an equal society,” says Zitrin, who endowed the Shanna Bradford Scholarship through the Arthur and Charlotte Zitrin Foundation in memory of his first scholar. “This program goes back twenty years. Now we have a greater understanding [that] things haven’t gotten so much better.”

Zitrin did the math for a 2002 article for The Recorder (“A Challenge to San Francisco Law Firms” September 13, 2002) and says contributing to this program will cost pennies a day. “These scholarships are as affordable to our law firms as much as law school is unaffordable to the recipients,” he wrote. By giving, “you get to be part of advancing the goals we so treasure in this city—tolerance, acceptance, and nurturing of cultural differences and diversity.”

“I’m a firm believer that one of the great attributes of the legal profession, particularly in the Bay Area, is diversity,” says Plunkett. “The only way to ensure it continues is to make sure we are constantly paying attention to the

pipeline of talent and providing scholarships to minority law students.”

For information about the Bay Area Minority Law Student Scholarship Program, contact Ann Murphy, director of Diversity Pipeline Programs, at amurphy@sfbar.org.

To make a donation, contact Steve Love, director of Donor and Community Engagement, at slove@sfbar.org or 415-7828917.

More information about both the program and donating is available online at www.sfbar.org/scholarships.

Kathleen Guthrie Woods lives on a one-block San Francisco street that boasts a mix of cultures, languages, orientations, and family structures. “It’s a picture of diversity at its beautiful best,” she says.

BAY AREA MINORITY LAW STUDENT SCHOLARSHIP PROGRAM

BY THE NUMBERS 2017

75

Number of applications received

12%

4

New scholarships awarded

Percentage of minority partners in San Francisco law firms (a 5% increase since 2004)

2:1

Ratio of female to male applicants

26%

Percentage of minority associates in San Francisco law firms (a 4.3% increase since 2004)

8

Number of law schools participating: Berkeley Law; UC Hastings College of the Law; UC Davis School of Law; Golden Gate University School of Law; University of the Pacific, McGeorge School of Law; Santa Clara University School of Law; Stanford Law School; and University of San Francisco School of Law

$30,000 Amount of each scholarship, divided over three years

WWW.SFBAR.ORG/SCHOLARSHIPS THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 19

Congratulations to the 2017 Recipients

of the Bay Area Minority Scholarship program!

Ramon Becerra-Alcantar

Ana Orozco Cortez

Lucy Garcia

Anna Rodriguez

UC Hastings College of the Law

UC Davis School of Law

UC Hastings College of the Law

Berkeley Law

Thank you to scholarship program donors: Stuart Plunkett, the Shanna Bradford Scholarship of the Arthur & Charlotte Zitrin Foundation, Dr. Ruth Shaber, and the Morrison & Foerster Foundation WWW.SFBAR.ORG/SCHOLARSHIPS Jones Day Heller Ehrman Gibson Dunn Murphy, Logan & Bardwell Altshuler Berzon Goldstein, Borgen, Dardarian & Ho Hugo Parker Fisher & Phillips Hanson Bridgett Harris Shelton Hanover Walsh Hopkins Carley Lederman Beach Manatt, Phelps & Phillips Neumiller & Beardslee Nassiri & Jung Morrison Foerster Ragghianti Freitas Myers Urbatsch (Fox Rothschild) Bingham McCutchen Leader-Picone & Young Paul Hastings Schneider Wallace Wilson Sonsini Goodrich & Rosati More info and full client list online

20 FALL 2017

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FEBRUARY 2018 SAVE THE DATE THE BAR ASSOCIATION of SAN FRANCISCO

JOURNEY�TO�CUBA A CROSS CULTURAL EDUCATIONAL EXCHANGE The Labor & Employment Law Section presents

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Two pricing and travel options are available in 2018.

For details and registration email cle@sfbar.org

FEBRUARY 9-10 2018 SAVE THE DATE THE BAR ASSOCIATION of SAN FRANCISCO

CONFERENCE

DATE

February 9, 1:00 – 5:00 p.m.

February 10, 9:00 a.m. – 12:00 p.m.

LOCATION

The Lodge at Yosemite Yosemite National Park, CA 95389 To make a hotel reservation for the conference or if you are interested in sponsorship, please email rcabading@sfbar.org

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 21

Due Process Rights Are Human Rights JDC Is at the Center of Collaborative Rapid Response Actions to Protect Immigrants’ Rights

By JDC staff

T

he new administration in Washington, D.C. has brought with it many changes, including new realities with regard to immigration laws and enforcement.

The increase in enforcement actions by immigration authorities is met by an organized effort to organize rapid response legal assistance by community organizations and nonprofits. As one of the principal organizations in the Northern California Rapid Immigration Response Network (Rapid Response Network), the Justice & Diversity Center (JDC) of The Bar Association of San Francisco (BASF) is tasked with coordinating a response to new immigration policies and actions.

The network’s readiness was put to the test in the second week of June as US Immigration and Customs Enforcement (ICE) conducted enforcement actions along the central coast, arresting dozens of individuals in Monterey and Santa Cruz counties. As is often the case in regional enforcement actions, rumors that immigration authorities were in the

22 FALL 2017

community began to circulate before any confirmed arrests.

As one of the primary legal organizations for the Rapid Response Network, JDC was a first point of contact for community organizations that had verified enforcement actions taking place.

The first confirmed reports came to JDC from Santa Cruz, including reports that individuals had been picked up on their way to work. Immigration case coordinators at JDC were able to contact family members and conduct intakes with regards to the enforcement actions.

Adriana Melgoza at the Watsonville Law Center served as one of the primary points of contact between families and the larger network. “Working with the network helped us serve our community, especially during stressful and difficult times for our families. Not only were we provided with the legal resources we needed but it has given us hope that we have the support for our community.”

As part of JDC’s immigration team, case coordinator Mario Martínez was tasked with conducting intakes with

Members of the ICE immigrant removal task force outside a home during an early morning raid to arrest and deport an immigrant. Photo credit: Getty Images

family members and following up with information about their cases once JDC was able to confirm the location of their loved ones. Martínez believes providing that type of basic information is particularly valuable in an otherwise traumatic situation for immigrant families. “I think the experience of having a family member taken away by ICE without warning is extremely difficult. I felt the family members I talked with appreciated any information we could provide.”

Hamid Yazdan Panah, attorney coordinator for the Rapid Response Network, describes the climate of fear and panic that often accompanies enforcement actions. “There are various community-based rapid response networks that are on the ground in these affected areas, many of them are underresourced and run by volunteers. They are often overwhelmed by the panic and fear that takes place in the community when these enforcement actions take place.

Through the network, they contact us with information

about an individual who has been picked up, and we follow up with that information.”

Avantika Shastri, legal director of the San Francisco Immigrant Legal Defense Collaborative and senior supervising attorney of the immigration programs at JDC, believes that access to counsel remains at the heart of due process in the immigration context. “Right after the arrest, ICE makes critical decisions about an immigrant’s case. ICE decides whether the person is provided a hearing before an immigration judge or is deported within days without any further recourse to stay with their family. Due process rights are human rights, and we believe that this network and its efforts will underscore that.”

Unlike individuals facing criminal charges, detained immigrants do not have a Sixth Amendment right to counsel and are often unable to speak to an attorney before or after they are placed in immigration proceedings or detained.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 23

Shastri notes that providing access to legal counsel serves the dual purpose of ensuring that due process is being followed by the government and providing detained individuals with information about their rights and options. “So many immigrants don’t know their rights and can’t judge if ICE is following the rules or correctly understanding their case.

Having an attorney present is important to ensure that each immigrant is afforded his or her due process rights at this critical moment.” says Shastri.

The Rapid Response Network serves as a collaborative of organizations that includes the American Civil Liberties Union of Northern California (ACLU), the National Lawyers Guild (NLG) and the American Immigration Lawyers Association of Northern California (AILA). The network’s goals are to provide rapid response support to every community within the jurisdiction of the San Francisco Immigration Court—from Bakersfield to the Oregon border.

The network is part of a growing trend throughout the country to coordinate between organizations and

communities in order to ensure that detained individuals are afforded due process and legal assistance.

Carole Conn, director of public service programs at BASF who oversees JDC’s Immigrant Legal Defense Programs, believes that the network is a natural response to the new realities faced by immigrants in the United States. “In this postelection era of new priorities that prizes the arrest not only of those with past criminal convictions but of anyone who is undocumented regardless of being a productive member of society, regardless of past trauma that led them here, regardless of the hardship imposed on the families they leave behind—this activity needs to have a swift response.

The Rapid Response Network accomplishes that firsthand.”

Although the network is in its early stages, Yazdan-Panah believes it played a positive role in the central coast enforcement actions. “Based on the intake data, we were able to contact ICE and find out exactly where these individuals were being housed, whether they were subject to immediate deportation, whether they would go before a judge, and whether they were eligible for bond. JDC also provided attorney referrals and reached out to local nonprofits that

“Right after the arrest, ICE makes critical decisions about an immigrant’s case. ICE decides whether the person is provided a hearing before an immigration judge or is deported within days without any further recourse to stay with their family. Due process rights are human rights, and we believe that this network and its efforts will underscore that.”

— Avantika Shastri

24 FALL 2017

THE BAR ASSOCIATION of SAN FRANCISCO

were already visiting the detention centers to ask them to meet with the detainees and provided attorney referrals.

This was incredibly valuable information for the families to have as they tried quickly to figure out how to help their detained family member. Hopefully, as the network grows, we can do more.”

Along with others in the network, JDC is also in the process of developing an attorney activation component that will seek to ensure that individuals being processed by ICE are afforded a consultation with an immigration attorney.

For now, the network hopes to provide whatever assis­tance it can as it continues to develop and organize its resources. JDC immigration case coordinator Roxana Quintero underscored the value and impact of the network’s rapid response work. “Being able to help these families during these moments of distress—by providing referrals, resources, and legal advice from JDC attorneys—was extremely rewarding.”

NOVEMBER 2 The Litigation Section presents

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Yazdan-Panah believes that the enforcement actions create a wave of panic and fear throughout a community, often among the most vulnerable. “It is difficult to really understand how deeply these arrests affect a community.

We’ve heard reports about individuals being too afraid to leave their homes even to buy food after these incidents.

Often families who are awakened at four or five in the morning and have loved ones taken away do not understand what is actually going on. In the case of the central coast, many of the individuals affected are economically exploited migrant workers and have little or no support or access to immigration counsel.”

The Northern California Rapid Immigration Response Network continues to seek community-based volunteers, including attorneys, interpreters, and coordinators. No immigration experience is necessary to volunteer. To find out more about the network and potential opportunities to get involved, visit the network’s website at rapidresponse.sfbar.org.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 25

Forty Years at the Center of Justice & Diversity The Third Decade:1997 to 2006

F

orty years ago, in 1977, James Brosnahan, then president of The Bar Association of San Francisco (BASF), along with the late Joanne M. Garvey, president in 1981, and Thomas F. Smegal, president in 1979, mobilized the city’s legal community to respond to a growing, unmet need. They had come to realize that government-funded, staff-based programs did not have the resources, or the capacity, to meet all the legal needs of San Francisco’s poor.

Together, they founded what would become the Justice & Diversity Center (JDC). Over the decades, under the

1996

leadership of extraordinary women, the organization, then known as the Volunteer Legal Services Program (VLSP), grew into a national pro bono model and the single largest provider of free legal services in Northern California.

In recognition of its unwavering dedication to creating positive and lasting change in clients’ lives, the Volunteer Legal Services Program/Justice & Diversity Center’s forty years are chronicled in every issue of San Francisco Attorney magazine in 2017. This third installment covers 1997 to 2006. You can find previous timelines and stories at jdc.sfbar.org.

1997 August1996

welfare reform signed into law President Clinton signs into law the Personal Responsibility & Work Opportunity Reconciliation Act, better known as Welfare Reform. Within a year, San Francisco begins to feel the real impact of the legislation. Thousands of adults and children see life-and-shelter-preserving benefits jeopardized, as the cost of housing continues to climb.

VLSP’s Homeless Advocacy Project assists many of the 3,000 adults who have to reapply for benefits. Due to these efforts, and newly established programs like the SSI for Children with Disabilities Project and the Citizenship Project, San Francisco has the highest reapplication rate in the country.

october 1996

1997

SSI for Children with Disabilities Project

citizenship Project

As a result of welfare reform legislation, 135,841 children nationally are cut from SSI rolls. In response, VLSP starts the SSI for Children with Disabilities Project.

VLSP launches a new Citizenship Project to help elderly and disabled legal immigrants become naturalized citizens and preserve their right to food stamps, SSI, and other benefits.

26 FALL 2017

may 1997

Womentoring Network In response to welfare reform, VLSP also enlarges the innovative Womentoring Network, pairing Women’s Clinic participants with professional women. The network offers opportunity for professional women to give back to the community and make a concrete difference in someone’s life. Mentors offer assistance in using the public library, résumé writing, setting goals and filling out financial aid forms. On another, and perhaps more powerful level, mentors provide confidence-building psychological and emotional support.

“Womentor” Angela Bradstreet, in 1998, says that her relationship with her mentee has broadened her horizons: “We as lawyers can have such tunnel vision...when you’re talking to someone who’s been both physically and mentally abused, doesn’t have a family or a support system, it puts everything into perspective.”

1997

law academy Law Academy, a project by BASF and the San Francisco Unified School District, is established to introduce underprivileged high school students to law and law-related careers.

1998 1998

Bay Area Minority Law Student Scholarship Program BASF’s Bay Area Minority Law Student Scholarship Program is established. During its highly successful inaugural year, the program raises over $380,000 and sponsors three-year scholarships for 25 entering law students.

Two Decades of Scholarships september1997

One-Stop Women’s Clinics VLSP expands and strengthens services in the wake of welfare reform, hosting One-Stop Women’s Clinics with dozens of community-based agencies offering workshops, information, and consultations.

Turn to page 14 to read more about past and current scholarship recipients.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 27

1998

july 2001

Legal Employment in Action Project

Family Law Assisted Self Help

The Legal Employment in Action Project (LEAP) is founded, providing former welfare recipients with extensive job and skills training and entry-level job placement with legal employers. After 18 weeks of training, and with the support of volunteer mentors, LEAP graduates obtain full-time jobs in San Francisco law firms.

Family Law Assisted Self Help (FLASH) is established and operated in conjunction with the Unified Family Court of San Francisco to provide legal counseling and education for people seeking to represent themselves in their divorce cases. For many low-income people, the sheer number of forms required to get a divorce can be so confusing and intimidating that some just end up staying married—frequently, the tension produced by these unresolved situations can lead to violence. Still based at the San Francisco Unified Family Court today, FLASH helps litigants with family law matters, including dissolution (divorce), child support, child custody and visitation, spousal support, drafting legal documents and answering questions about the availability of additional community resources.

Within a few years, LEAP becomes one of the most successful sector-based training programs in the country, with over 100 law firms and corporate law departments participating.

1999

2000

2001

2001

9/11 Pro Bono Initiative

2000

School-To-College The School-To-College (STC) program is established, providing SAT test preparation, funding to visit colleges, counseling and assistance with college applications. STC’s first year is a huge success, with every student in the program accepted into a college.

To this day, STC guides students—80 percent of them first-generation students—through the application process and 97 percent of STC students go on to attend college.

28 FALL 2017

The legal community is quick to answer the call in the wake of the attacks of September 11, working together with governmental and social service organizations to provide assistance. The 9/11 Pro Bono Initiative is launched to provide legal support to the California families who lost loved ones as a result of 9/11. These families have to deal with life insurance claims, probate matters, loss of health benefits, immigration problems, child custody, and other issues while still grieving. VLSP arranges for families to receive advocacy and counsel.

At the same time, BASF’s Lawyer Referral and Information Service is working with the Lawyers’ Committee for Civil Rights to screen victims of racially-motivated discrimination and hate crimes seeking legal assistance.

2001

Dru Ramey leaves BASF after 16 years of service Dru Ramey leaves as Executive Director of BASF after sixteen years of service. In the words of Tanya Neiman, “Under Dru’s leadership over the past two decades, VLSP has become the largest and only full-service provider of legal services to poor people in San Francisco, with some services extending into the greater Bay Area as well. This is an astonishing accomplishment. Nowhere else in the country is there a bar association that provides a home for such a large and complex program....That is the strength from which we operate, enabling us to respond to the ever-changing problems faced by indigent people in our community.”

2002

2003

2001

Health care Access Project The Healthcare Access Project is launched as a collaborative venture with the Haight Ashbury Free Clinics and Support for Families of Children with Disabilities. Through this project, San Francisco’s disabled low-income population receives greater access to the full array of legal and social services needed to help them achieve stability and move forward.

2004

2005

2006

2006

The guiding light of VLSP: Tanya's vision, innovation and spirit 2004

Lawyers for Children Recognizing that the criminal justice system is ill-equipped to address and treat the problems of youth offenders with developmental issues, VLSP launches a pilot program called Lawyers for Children. The program assigns volunteer attorneys to work with children caught in the courts to make sure they receive the educational or mental health services they are entitled to by law.

Tanya Neiman, VLSP’s director since 1982, passes away after a long battle with cancer. Her legacy as the guiding light at VLSP lives on. In the words of Steven Scudder, ABA Standing Committee on Pro Bono and Public Service, “There are few, if any, pro bono programs in America that have not been impacted by Tanya’s vision, innovation, and spirit.” Kamala D. Harris, then district attorney for the City and County of San Francisco, describes her as “a tireless and energetic fighter for equality and fairness. She had one of the loudest voices for those who had no voice.”

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 29

The Justice & Diversity Center’s Mock Trial Program is now accepting volunteer coaches for its 2017-2018 academic year.

MOCK TRIAL

NEEDS YOU

Help underserved students in San Francisco’s public high schools learn the fundamentals of debate: mastering critical reading; practicing effective thinking and verbalizing; and participating in a team effort with a diverse group of students and coaches.

no idea that, through this “I hadexperience, I would observe the genuine impact our efforts as coaches have on our youth, long after mock trial is over.

”

Adam Maldonado, Mock Trial coach San Francisco District Attorney’s Office

Mock Trial helps students prepare for college life, job interviews, and beyond.

Give back to our community and volunteer! Read our FAQs or contact Ann Murphy at amurphy@sfbar.org to sign up.

Adam Maldonado (second from left) with Mock Trial participants at their high school graduation.

WWW.SFBAR.ORG/MOCKTRIAL

JOBS.SFBAR.ORG

Target Top Talent Faster & Easier Whether you are hiring one person or a whole team, BASF’s Career Center will help you hire the right talent.

Our job board targets legal professionals throughout the United States and gives you numerous packages to reach qualified candidates.

15% OFF 30 FALL 2017

with discount code

Fall17

jobs.sfbar.org

40 Years at the Center of Justice & Diversity 1977–2017

40

&

Every day, San Francisco’s most vulnerable residents turn to the Justice & Diversity Center to overcome essential challenges to their safety, stability, and education. The families and youth we serve could not succeed without your support.

YOUR IMPACT

45,278

1,683

8,500

Number of volunteer hours donated last year

Number of attorneys, paralegals, and law students who volunteered in 2016

Number of low-income San Francisco residents who received pro bono legal help last year

Help build a fair and equal San Francisco.

LEARN

DONATE

VOLUNTEER

Visit jdc.sfbar.org to read about JDC’s programs and impact.

Visit jdc.sfbar.org to make a contribution.

You can also text GIVE2JDC to 41444 to make a pledge.

Turn the page for a summary of JDC volunteer opportunities.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 31

Represent and Empower Low-Income People

PRO BONO MENU: LEGAL SERVICES VOLUNTEER OPPORTUNITIES

CONSUMER PROJECTS

HOUSING PROJECTS

Both projects provide training, supervision, and ongoing case support by JDC supervising attorneys and/or mentors

Both projects provide training, supervision, and ongoing case support from JDC supervising attorneys and/or mentors

COLLECTION DEFENSE & EDUCATION CLINIC

EVICTION DEFENSE

Represent people defending against collection actions and/or harassment by debt collectors. (California licensed attorneys, paralegals, law students; no specific practice area or experience required)

Represent tenants defending unlawful detainer actions.(California licensed attorneys, no specific practice area or experience required)

Training................................................. 3 hours; on-site supervision Time Commitment................................ 3 hours per clinic

COLLECTION DEFENSE REPRESENTATION Represent people defending collection actions. (California licensed attorneys, basic litigation experience in any area of law required)

SETTLEMENT CONFERENCES Represent tenants at pretrial settlement conferences in eviction cases. (California licensed attorneys, no specific practice area or experience required)

Training................................................. 3 hours Time Commitment................................ 15–20 hours over 3–4 months

Training................................................. 2 hours; on-site supervision Time Commitment................................ 4 hours during afternoon settlement conference

FAMILY LAW PROJECTS

FEDERAL PRO BONO

All projects provide training, supervision, and ongoing case support from JDC supervising attorneys and/or mentors SIMPLE DIVORCES Represent litigants in dissolutions/divorces without custody or property issues (California licensed attorneys, no specific practice area or experience required)

VOL UNTEER OPPORTUNITIES

Training................................................. 4 hours Time Commitment................................ 40–50 hours over 4–6 weeks

Training................................................. 4 hours Time Commitment................................ 10–15 hours over 6 months

CUSTODY AND SPOUSAL SUPPORT

Represent low-income litigants in Federal Court Training................................................. none Time Commitment................................ varies by matter/case

TAX Assist low-income taxpayers who have issues in controversy with the IRS Training................................................. none Time Commitment................................ varies by matter/case

Represent litigants with child custody or spousal support matters that require motion and hearing appearance. (California licensed attorneys, no specific practice area or experience required)

TRANSACTIONAL/BUSINESS

Training................................................. 6 hours Time Commitment................................ 20–30 hours over 3–4 months

Training................................................. none Time Commitment................................ varies by matter

Represent and advise nonprofit organizations

GUARDIANSHIPS Represent families in an uncontested petition for guardianship. (California licensed attorneys, no specific practice area or experience required) Training................................................. 3 hours Time Commitment................................ 15–20 hours over 3–4 months

INTERPRETER Interpret for JDC’s monolingual clients at meetings, depositions, trial, and Saturday Legal Advice and Referral Clinics. (Bilingual Spanish, Cantonese or Mandarin-speaking community members) Training................................................. yes Time Commitment................................ varies Full-scope Limited-scope Favorite for transactional attorneys Attorneys need at least 5 years of experience in

32 FALL 2017 substantive practice area, or work under the supervision

of senior attorneys/partners in their office.

LEGAL ADVICE AND REFERRAL CLINIC Saturday Walk-in Clinics Providing Brief Legal Advice: California licensed attorneys with 5+ years experience in bankruptcy, business/contracts, collection defense, consumer, criminal, employment/labor, family, immigration, housing, personal injury, probate, real estate, SSI, workers comp law; law students, paralegals, attorneys of all backgrounds conduct intake interviews; experienced social workers and interpreters Training................................................. Yes for nonexpert attorney tasks; None for expert advice attorneys Time Commitment................................ 4–6 hours per clinic

Get Involved

Contact Gloria Chun, JDC Pro Bono Manager, at gchun@sfbar.org or 415-782-8970.

Visit www.sfbar.org/volunteer.

Sign up for a training at www.sfbar.org/probono-trainings.

coach, mentor, and empower youth

DIVERSITY PIPELINE PROGRAMS VOLUNTEER OPPORTUNITIES 1L OPEN DOORS JOB SHADOWING PROGRAM Host a law student during spring break Teaming with local law schools, BASF/JDC established this program in 2015 to open doors to first-year law students looking for early exposure to practitioners and legal professionals. During the three-day shadowing, students can be exposed to client meetings, courtroom proceedings, firm meetings, and other activities that expose the inner workings of a law firm.

Commitment: Host a law student in your office for three days during spring break.

BAY AREA MINORITY LAW STUDENT SCHOLARSHIP Law students benefit from a mentor/mentee relationship The Bay Area Minority Law Student Scholarship Program was established in 1998 to reaffirm a commitment to diversity in legal education and the legal profession. BASF/JDC teamed with individuals and legal organizations to provide substantial three-year, need-based scholarships to qualified students who attend Bay Area law schools. The vast majority of scholarships awarded are $10,000 annually.

Commitment: Mentor a law student scholarship recipient by assisting them with writing, editing, and researching skills.

DAY IN COURT Behind-the-scenes access to courts

Commitment: 4 hours per visit

DESTINATION LAW SCHOOL Share your law school experience with undergraduates Destination Law School is a diversity pipeline program for minority college students interested in attending law school and becoming a lawyer. Share your experience of law school with diverse students considering a career in law, including: How to navigate the law school application process; What a first-year law class is like; The lawyer’s perspective on career options for lawyers; What to expect on the LSAT examination

Summer internship gives students meaningful work experience The San Francisco Law Academy is a yearlong program that encourages and increases career opportunities for diverse, underserved students at Balboa High School in San Francisco. The curriculum is built into core classes where students learn basic legal concepts. Started in 1997 by then BASF president Judge Jeffrey Ross, the program inspires students to realize personal strengths that they may not otherwise discover.

Commitment: Participate in a classroom presentation on various aspects of the law or organize a “Day in the Firm” where students visit your firm for a tour. Special need is for paid six-week summer internships for students, to give them exposure to a business environment.

MOCK TRIAL Form a team with colleagues or join an existing one The program is an interscholastic competition where high school students try a hypothetical criminal case, building their intellectual and communication skills while gaining an understanding of their obligations to our society.

Each school fields a team of students to portray lawyers, witnesses, and a timekeeper/bailiff. Most students are diverse and come from underserved schools. Lawyers volunteer in the fall to coach the fundamentals of persuasive public speaking and evidence advocacy, demonstrate techniques, and critique the students in preparation for the citywide competition in March.

Commitment: Coach 8–10 hours weekly during fall leading up to competition, or score/judge the competition in March, 2 hours

SCHOOL-TO-COLLEGE New volunteer opportunities coming in fall STC is a year-long program that inspires ninth- through twelfth-grade students in Academy of Arts & Science High School to graduate high school and attend college. Plans are being formulated to offer STC students and their families enhanced legal information about immigration, housing, family law, and many other related legal topics. School presentations are being planned, as well as a free legal clinic where volunteer attorneys will be needed to offer legal advice in their area of expertise.

Commitment: 2–3 hours during a legal clinic in the fall and spring.

Commitment: Participate on panel presentations at college campuses in the Bay Area in fall and spring.

LGBT YOUTH PROGRAM

BASF COMMITTEES Join one of the following four equality committees to help define policy while working with others on issues that affect us all:

Speaking with students at local high schools’ LGBT alliance groups, juvenile halls, and LGBT-related nonprofits, this program utilizes volunteer attorneys to share their backgrounds, the steps it took to become an attorney, and some of the challenges they’ve faced because they are LGBT.

Disability Rights; Minorities; Lesbian, Gay, Bisexual, and Transgender (LGBT) Issues; Women

Commitment: Participate on a 1-hour panel presentation at high school campuses in the Bay Area in the fall and spring.

Visit local high schools and share the challenges of being an LGBT student

Get Involved To volunteer or to learn more about BASF and JDC’s programs to build a diverse pipeline to the profession, contact Ann Murphy at amurphy@sfbar.org. www.sfbar.org/diversity-volunteer

VOLUNTEER OPPORTU NITIES

In cooperation with the San Francisco Superior Court, the Day in Court Program takes students from the classroom to the courtroom, allowing them to witness firsthand the trial of civil cases. Committee members act as tour guides for the classes, providing the teachers and chaperones with a calendar of trials scheduled for that day and giving the class a brief orientation.

LAW ACADEMY

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 33

JDC: YOUR KEY TO MAKING AN IMPACT GIVE BACK. CHANGE LIVES.

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THURSDAY, OCTOBER 5

The Barristers Club

Barristers Club Bay Cruise with Bay Area In-House Counsel

of THE BAR ASSOCIATION OF SAN FRANCISCO

Please join the Barristers Board, Barristers Club members, and special guests from in-house legal departments around the Bay Area for an evening cruise on the bay.

Ticket prices include a welcome glass of champagne and hors d’oeuvres; cash bar available.

Business attire requested.

Kick Off Fleet Week in Style!

WWW.SFBAR.ORG/CRUISE

National Academy of Arbitrators and its Northern California Region Q & A for Labor & Employment Lawyers Q: What is the National Academy of Arbitrators?

A: Honorary professional organization of leading labor and employment arbitrators since 1947.

Q: What does NAA do?

A: Endeavors to improve arbitration through national conferences and regional activities, publications, and research grants. Sponsors www.arbitrationinfo.com, the noted new website for comprehensive, non-commercial, current, neutral information about workplace arbitration.

Q: What does arbitrators’ NAA membership mean?

A: Rigorous admission standards assure NAA members’ competence, neutrality, integrity and continuing compliance with the Code of Professional Responsibility Q: Want to know more?

A: Visit www.naarb.org for list of members and info on NAA’s meetings, publications, activities and the Code.

Email Nor Cal Region at bgbogue@gmail.com about local “Meet the Arbitrator” advocacy training program.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 35

MOBILIZING ON ALL FRONTS TO END VIOLENCE AGAINST

WOMEN Erin A. Gordon

T

he San Francisco Police Department’s expert on domestic violence is Inspector Antonio Flores. As acting lieutenant of the Special Victims Unit, he sees domestic violence up close. According to Flores, recent trends include the use of technology to commit violence against women. “If you Google, ‘How do I spy on my girlfriend?’ you’d be amazed at how many videos come up,” explains Flores, a San Francisco native who experienced domestic violence in his own family growing up. “You may hear a woman bragging that her boyfriend is buying her an iPhone 8, but she doesn’t realDirect violence such as ize that he plans to keep track of her” domestic violence is the through the phone’s apps and GPS.

number one cause of injury to American women.

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Statistics support what Flores sees in the field. Seventy-eight percent of stalking victims are women, and women are significantly more likely to be stalked by intimate partners, according to the Center for Policy Researchâ&#x20AC;&#x2122;s report on stalking in America. Eighty percent of women who are stalked by former husbands are physically assaulted by that partner; 30 percent are sexually assaulted by that partner.

And stalking is just one type of violence against women.

Characterized by behaviors that isolate, neglect, or exercise power and control over an intimate partner, domestic violence can include physical, sexual, psychological, or economic abuse, according to the 2016 Comprehensive Report on Family Violence in San Francisco by the San Francisco Family Violence Council. Direct violence such as domestic violence is the number one cause of injury to American women. Twenty percent of women in the United States have been victims of severe violence by an intimate partner. In California, the rate jumps to 40 percent. Women also experience indirect violence in the culture at large, such

as rape culture and health-care issues that include rising maternal mortality and decreased access to reproductive health care.

In San Francisco, Flores has witnessed another growing trend: the interplay between domestic violence and immigration.

Abuse rates among immigrant women are almost three times the national average, according to the National Immigrant Womenâ&#x20AC;&#x2122;s Advocacy Project. Many men control noncitizen women by threatening to call immigration officials, and undocumented victims of domestic violence may be especially reluctant to come forward for fear of deportation.

To combat this, U visas are increasingly being used as a crime-fighting tool, according to Flores. Created by Congress in 2000 as part of the Violence Against Women Act, the U visa is a temporary visa for noncitizen crime victims who are willing to cooperate in the detection, investigation, and prosecution of criminal activities.

Domestic violence accounts for more than 45 percent of U visa criminal activities.

Women's March 2017, National Mall

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 37

“In one case, I saw how obtaining a U visa changed the victim’s whole life,” Flores recalls. “She was able to work, get a driver’s license and a temporary work permit.” To help streamline the U visa process, Flores, along with Julie Traun, director of BASF’s Court Programs, led a training for the ACCESS Center at the San Francisco Superior Court, which provides self-help services for family law matters.

In addition to tools like the U visa, certain factors make it less likely that women will experience domestic violence or at least increase their resilience when faced with violence.

One of those factors, according to the San Francisco Family Violence Council report, is the coordination of resources and services among community agencies.

To that end, The Bar Association of San Francisco and its Justice & Diversity Center (JDC) are working to improve the lives of women both by directly assisting victims of violence and by collaborating with other organizations that assist women who’ve experienced violence. Specifically, JDC provides life-saving legal services to nearly 1,300 at-risk and low-income women in San Francisco, many of whom are domestic violence survivors. Typical matters include marital dissolutions, child custody, and child support. JDC lawyers also assist with related issues such as restraining orders and powers of attorney.

“Sixty percent of our cases involve domestic violence,” says Stephanie Bilinski, JDC’s family law supervising attorney.

Domestic violence “impacts everything,” from divorces and custody to asset division, spousal support, and debt, Bilinski adds. She’s seen violence against women “even in the simplest of cases” such as a divorces involving no kids or assets.

This kind of violence includes not only physical abuse and severe harassment, but also emotional and financial abuse.

For instance, a man may refuse to put his wife’s name on their house, forbid her from working, deny her access to assets, or tell her she’s too stupid to go to school or do anything

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JDC provides life-saving legal services to nearly 1,300 at-risk and low-income women in San Francisco, many of whom are domestic violence survivors.

other than work at a minimum wage job. Once she leaves the relationship, he may steal her identity or get her evicted.

When the couple is in court, “he may testify that she’s crazy or an alcoholic when none of it’s true,” Bilinski says.

To help these women, JDC, which handles about 350 cases at any one time, relies on pro bono volunteers, placing as many as 140 attorneys a year. Bilinski also runs a clinic four times a month with Compass Family Services and the Homeless Prenatal Program in which the “overwhelming majority of clients have domestic violence issues.”

In addition to its direct service work, JDC is also a founding member of the San Francisco Domestic Violence Consortium (DVC), a network of seventeen agencies that provide coordinated, comprehensive services to domestic abuse victims. Services include emergency shelter, transitional housing, crisis lines, counseling, prevention programs, education, and legal assistance. The goal of the consortium is “to create a well-coordinated network of services to maximize resources, advocate for social change, work collaboratively, and reach the diverse populations of San Francisco,” according to Beverly Upton, the consortium’s executive director. “Because domestic violence crosses all lines of culture, economics, age, sexual orientation, ability, and other backgrounds, our services must be coordinated

to meet the needs of all survivors of domestic violence and their children. DVC members are committed to connecting women to a community of support, beyond one program alone, to help break the isolation and provide safety, healing, and a network of resources.”

A battered parent would find it difficult, if not impossible, to navigate the judicial system alone, Upton adds. As a result, “JDC’s membership in the consortium is a gift to so many battered survivors and their children.”

Barristers Club board member Jessica Ryland is similarly committed to protecting women in the community. A litigator at Lewis Brisbois Bisgaard & Smith, Ryland is helping to spearhead a women-helping-women event at which the legal challenges facing low-income women in San Francisco are at the forefront of the discussion.

“We are reaching out to the legal community and women leaders in the broader San Francisco community so together we can tackle issues facing women,” Ryland explains.

Ryland’s involvement with JDC is “a passion project,” she says. “I’m often reminded of that Margaret Atwood quote that men are afraid that women will laugh at them and women are afraid that men will kill them. A woman is beaten every nine seconds. It’s the number one cause of injury to women. And we now have a president who is so dismissive of his own sexual assault charges that it has emboldened a new culture. Low-income and minority women are disproportionate victims of violence, as are young women.

JDC empowers these women by giving them options, a way out.”

In addition to preventing violence against women, Ryland is passionate about reversing the societal inequalities that women face, especially in terms of access to health care and job opportunities. “While women in the workforce have made great strides, women’s growth in top management and C-Suite positions is still underwhelming,” she says.

“Women hold just 5 percent of CEO jobs in the S&P 500,

for instance. There’s also still a sizable pay gap between men and women. In California, this pay gap is nearly $79 billion per year.” Even in the local legal market, although women now make up more than half of all associates in San Francisco law firms, they compose just a quarter of all partnerships, and minority women make up only 4 percent of partners, Ryland adds.

Women in the United States also struggle with health care in a way that shouldn’t be seen in a developed country, according to Ryland. “Maternal mortality rates are on the rise in the United States, defying a worldwide trend in the opposite direction, due in part to a lack of access to health care.” Women face even more cuts to their health-care options and restrictions to reproductive and preventative health care under Trump’s health-care proposals.

“So there’s still a lot of work to be done to achieve gender equality both inside and outside the professional sphere,” Ryland explains. “That’s why it’s important to bring these issues to the forefront and mobilize, especially by women in the position to help other women. These are issues that affect all women, and we must come together to help one another achieve progress, gender equity and an end to violence for all.”

A former lawyer, Erin A. Gordon is a freelance journalist living in San Francisco. She is the author of Cheer: A Novel and Heads or Tails, both available on Amazon. She can be reached at ErinGordonSF@gmail.com.

Women Helping Women. To find out how you can get involved, contact Steve Love, director of Donor and Community Engagement, at slove@sfbar.org

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 39

When the community works together, the community works A vibrant community depends on the participation of its members. The more diverse their backgrounds, experience and skills, the more unique their contributions to the community can be.

Bank of America supports the Justice & Diversity Center of the Bar Association of San Francisco for celebrating individuality while supporting the common goals that bring progress to everyone.

Visit us at bankofamerica.com/San Francisco Life’s better when we’re connected® ©2016 Bank of America Corporation | SPN-128-AD | AR7NWC3L

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Refer with Confidence LRIS—the trusted source for legal referrals since 1946 Ser v ing S an F ra n c is c o a n d M a r in Co u n tie s

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Lawyer Referral and Information Service A NONPROFIT SERVICE OF THE BAR ASSOCIATION OF SAN FRANCISCO

Section membership A VITAL PART OF YOUR PRACTICE

As a BASF member, sections give you an excellent way to meet other members, share expertise, and improve the practice of law.

Section membership offers these invaluable benefits: Take a leadership position—build your professional brand Opportunities to deliver programs as a subject matter expert Continuous learning and skills advancement opportunities Access to over 200 in-person and 700 online MCLE programs Recorded seminars in digital formats for self-study credit Want to add a section to your membership?

It’s easy to sign up at

sections.sfbar.org

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 41

THE RISKY BUSINESS OF LIVING OUTSIDE THE MARRIAGE BOX How and Why a Growing Number of Cohabitants Are Setting Themselves Up for Legal Uncertainty Stan Sarkisov and Erin Levine

I

t’s not just your parents—California wants to see you settled down and married. The state’s laws incentivize marriage and hundreds of statutes confer protection on married persons: spousal support after separation, community property rights (and other laws that presume property acquired during marriage is a joint asset), tax perks such as the exclusion of gift taxes for transfers between partners, and protection from disinheritance upon death. Thanks to a California case and the recent US Supreme Court decision, San Francisco values have gone mainstream, and now same-sex couples nationwide have similar incentives to formally and legally get married.1

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As our matrimonial laws continue to expand, fewer and fewer people are stepping up to the altar. By 2014, the share of married Americans dropped to 50 percent, down from 69 percent in 1970.2 Since 2000, unmarried cohabitating couples have grown by over 40 percent in the United States, and over 40 percent of children are born to unmarried couples. Despite the “diamonds are forever” marketing, the United States has the highest divorce rate in the Western world. The standard marriage model is not user friendly to millennials, almost half of whom support an “opt-out” model involving a two-year trial run—at which point the union is formalized or terminated, without any paperwork.3

Americans are not growing afraid of commitment. Instead, millennials understand their relationships are not like their parents’—and they don’t have to be. In 1976, the California Supreme Court suggested, “Some couples may wish to avoid the permanent commitment that marriage implies,

yet be willing to share equally any property acquired during the relationship.”4 Millennials avoid marriage not to avoid commitment. Instead they are avoiding a multithousand, multiyear Divorce Inc. institution. No longer a taboo, the rate of unmarried romantic (and committed) cohabitation has increased 1,000 percent over the past decade. Generations reared by choice and options are “disrupting” how stable relationships are formalized.

Cohabitation comes with dangerously little protection.

While married couples unknowingly enter into a compli­ cated economic contract based on legislative algorithms for what’s fair, cohabitants face the other extreme. If two people buy dishes, pick out sofas, and commingle their resources— upon separation they are largely treated as familial strangers.

There are no duties and presumptions for cohabitants, and there will be no reimbursement for mortgage contributions made toward your ex-roommate’s home. California does not have any form of “common law” marriage, so unmarried couples who separate after living together and “acting” married have to be much more creative, and potentially employ financial planners, trusted friends, and mediators to help sort out finances.

The solution: an individually tailored cohabitation agreement. The alternative is walking away with nothing, mediation, or an archaic and expensive civil litigation system that treats unmarried exes as business or real estate partners (at best). In a landmark California Supreme Court case, the judge acknowledged that couples shirking commitment opened the door for romantic cohabitants to seek spousal support and property division in nonmarital breakups. After six years of living together, Ms. Marvin (a Hollywood C-lister) changed her surname, gave up rising fame to be a homemaker (no kids), and thought Mr. Marvin (an Academy Award–winning villain) had orally promised to support and share his earnings. After their breakup got to the state’s highest court, Ms. Marvin was unable to prove

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 43

the existence of a contract that entitled her to a division of property (that would have been deemed community property had she been married). The privileges of married people were not transferrable to those who chose not to marry. But the court invited future cohabitants to prove the existence of an express or implied contract to get what Ms. Marvin could not.

A cohabitation agreement guards against the unknown—it can solidify expectations, provide protection to a partner who sacrifices a career to tend to children, protect separately owned property, provide scaffolding for jointly owned property, provide for support (“palimony”) postseparation, and minimize financial exposure to the higher earner. This clarity (and express confirmation) would have helped Ms. Marvin determine: • How will income and expenses be allocated in your relationship?

• Will you pool assets and wages?

• Will both parties be responsible for paying bills equally or proportionally?

• Will property acquired during the relationship (think: stock options, cars, loans, retirement contributions, houses, and other assets) become joint or stay separate?

• Will palimony (post-non-marital breakup support) be paid or received?

• If one party sacrifices economic growth to raise children or support the other’s career, will that person be entitled to financial assistance or a breakup transition payment to become self-supporting?

• If a house is purchased during the relationship, how will title be held and how will the parties build their respective financial interest in the real property?

As goes California, so goes the nation—but California is not going anywhere.5 When it comes to cohabitation, California is following along. The state is constitutionally bound to recognize an out-of-state common law marriage, but fewer and fewer states are allowing it.6 Six states recently abolished it (most recently Alabama in 2017). One national outlier is Washington State, where cohabitants have similar property rights as marital partners. In those few states where common

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The standard marriage model is not user-friendly to millennials, almost half of whom support and ‘opt-out’ model involving a two-year trial run – at which point the union is formalized or terminated, without any paperwork.

law marriages are legal, there is no such thing as a “common law divorce.” Couples still have to convince a judge that medical records, sleeping arrangements, and holiday cards sufficiently prove a “marriage” existed and equitable division of property is warranted. Small and intimate details of a couple’s life will make their way into the public pleading file.

Often, the economically disadvantaged spouse will argue for a marriage, and the higher earner will claim no partnership existed at all (just like our California cohabitation antihero Mr. Marvin).

Proving a Marvin relationship is an uphill battle because courts like clean rules. Unlike divorces where separating couples must initiate a legal process to disentangle their finances, unmarried cohabitants do not have the benefit of a code specifically tailored to (almost) all issues that come up when dissolving their union or a dedicated forum to resolve them in. Providing your implied contractual intentions (one way to show a Marvin relationship) is not the easiest task.

Before Alabama got rid of common law marriage, dissenting appellate Judge Terri Willingham Thomas laid it out clear:

Judicial recognition of common-law marriage has led to unnecessary litigation, perjury, and fraud for too long.

Common-law marriage should not be encouraged or tolerated when a bright-line standard for determining marital status is readily available. The legislature, by its silence, should not require the courts of this state to continue to struggle to separate fraudulent claims of marriage from valid ones when requiring parties who wish to enter into a marital relationship to obtain a marriage certificate would decisively solve the problem.7 Attempts to innovate the marriage model have not been successful. In 2011 a Mexico City legislator proposed a twoyear temporary beta marriage. Religious leaders, battling a simultaneous attack on “traditional values” from marriage equality advocates, protested the proposal. In June 2017, Lord Neuberger, the president of the Supreme Court of the United Kingdom, delivered a keynote speech on the “plight of the unmarried.” Across the pond, the UK Supreme Court effectively killed off the possibility of property rights for domestic purposes.

Californians wanting the rights of married people must get married. Or, in the alternative, carefully craft a cohabitation agreement with experienced lawyers not only to memorialize expectations but also to provide for a method of resolution for disputes that arise postseparation.8 At some point, the family law community will need to look long and hard as to whether it makes sense to expand the Family Code to include more rights and obligations for romantic cohabitants or, at the very least, provide a more streamlined method for resolving implied and express contract disputes.

Stan Sarkisov has practiced family law since graduating from the University of San Francisco School of Law. Sarkisov joined the Levine Family Law Group as an associate attorney in 2016, and enjoys working with clients seeking a streamlined solution or a tailored result through complex litigation or negotiation.

Erin Levine, Certified Family Law Specialist, has spent twelve years advising clients and litigating and negotiating contested and cooperative divorces and other family law matters, including issues that affect the modern “alternative” family. Through her firm (Levine Family Law Group) and web platform (Hello Divorce), Levine strives to help savvy, diverse, outside-the-box thinkers navigate the family law system with their financial and emotional integrity intact.

Notes 1. Obergefell v. Hodges ruled that the fundamental right to marriage is guaranteed to same-sex couples. However, a June 2017 Texas Supreme Court decision, Pidgeon v. Turner, ruled that the Obergefell decision does not mandate Texas to extend spousal benefits for government employees in same-sex marriages.

2. Pew Report 12/14/2011, “Barely Half of U.S. Adults are Married—A Record Low,” and Quartz article, “Marriage in America is going out of style—unless you’re rich.”

3. Time Magazine 07/17/2014, “Are You Monogamish? A New Survey Says Lots of Couples Are.” 4. Marvin v. Marvin (1976) 18 Cal. 3d 665.

5. In 1979 the U.S. Supreme Court, in Hisquierdo v. Hisquierdo, ruled that because of states’ police authority the whole subject of the domestic relations of husband and wife belong to the laws of the state.

6. Common-law marriages are a colonial leftover, when children born out of wedlock were a scandal. Finding a church official was more difficult, and cohabitants need a way to make it legit.

Today, common-law marriage is less common because cohabitation is less taboo. For more, see NPR article, “No, You’re Not in a Common-Law Marriage After 7 Years Together,” by Heidi Gleen (09/04/2016).

7. McMullins v. McMullins (2016).

8. Note: Parentage and child custody disputes arising between unmarried cohabitants may be litigated in Family Court. Property and support disputes are resolved in Civil Court.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 45

SUPREME COURT WATCH

THE FIRST AMENDMENT’S DAY IN THE SUN

By Josh Patashnik

T

he Supreme Court term that ended this past June may have been the calm before the storm.

The Court largely shied away from high-profile cases likely to generate sharp ideological divisions, no doubt in part because the term began with a shorthanded eightjustice bench. And despite persistent rumors that he would retire at the term’s end, Justice Anthony Kennedy made no such announcement, forestalling (at least for now) the intense political battle over the future of the Court that would all but certainly ensue.

In at least one respect, though, this past term was a genuinely important one:

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on a single day (June 19), the Court released two major opinions in First Amendment cases that, in time, may come to be seen as even more significant than they currently appear. In an era in which freedom of speech and expression is coming under increasing attack from both the right and left ends of the political spectrum, the Court unequivocally renewed its commitment to protect unpopular speech and the rights of unpopular speakers and listeners. It also may have foreshadowed the likely outcome in one of the blockbuster cases on the Court’s docket for next term, Masterpiece Cakeshop v. Colorado Civil Rights Commission.

SUPREME COURT WATCH

TRAFFIC TICKETS AND ROCK BANDS The first case, Packingham v. North Carolina, arose when Lester Packingham, a convicted sex offender, decided to take to Facebook to celebrate the fact that a state court had dismissed a traffic ticket he had received. “Praise be to GOD, WOW! Thanks JESUS!” he wrote. Unfortunately for Packingham, his post caught the attention of the Durham Police Department (which perhaps did not appreciate Packingham’s tacky end-zone dance celebrating the dismissal of his traffic ticket). His exultant Facebook post earned him a conviction under a North Carolina statute that prohibits sex offenders from accessing social networking websites available to minors.

The Court unanimously held that Packingham’s conviction violated the First Amendment. Justice Kennedy’s majority opinion, joined by the four more liberal justices, is in many ways a remarkable opinion. It is barely nine pages long, yet it contains several rather sweeping statements about the nature of communication on the Internet. (“While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”)

As a matter of legal doctrine, its holding is brief but clear: even assuming North Carolina has a compelling interest in keeping sex offenders away from children, the state could not establish that its draconian means of banning the use of social media was a narrowly tailored way of achieving that goal, in light of less burdensome alternatives like simply prohibiting sex offenders from contacting minors online.

Justice Samuel Alito, joined by Chief Justice John Roberts and Justice Clarence Thomas, reached the same bottom-line result, but in a separate opinion that criticized the majority’s “undisciplined dicta” about online communication.

The second case, Matal v. Tam, involved a rock band called the Slants—a name chosen by the Asian American members of the band in order to “reclaim” that derogatory term often applied to Asian Americans. Unfortunately for the Slants,

the Patent and Trademark Office (PTO) is not known either for its appreciation of antiracist literary techniques or for its taste in rock music. When the Slants applied for a trademark, the PTO denied their application on the ground that it violated a provision of the Lanham Act prohibiting the registration of any “disparag[ing]” mark.

The Court again unanimously held that this violated the First Amendment, although no opinion garnered the support of five justices. Justice Alito, writing for himself, the chief justice, Justice Thomas, and Justice Stephen Breyer, rejected the government’s argument that trademarks constitute government speech or a permissible subsidy of preferred speakers. Rather, Justice Alito concluded, refusing to register “disparaging” marks impermissibly burdens protected expression, since the government has no legitimate interest in prohibiting offensive speech and the provision is not narrowly tailored to any other legitimate purpose. Justice Kennedy, writing for himself and Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, concluded that the ban on “disparaging” marks constituted impermissible viewpoint discrimination.

EASY CASES, BUT AN UNMISTAKABLE MESSAGE On one level, Packingham and Tam were easy cases. The laws at issue in those cases were wildly overbroad, almost comically so. North Carolina’s statute on its face prohibited sex offenders from accessing not just traditional social networking sites like Facebook, LinkedIn, and Twitter, but also any site that allowed underage users to create a profile and communicate with others—including (among others) Amazon, WebMD, and numerous news sites. The Lanham Act prohibited the registration of any trademark that may “disparage … or bring … into contemp[t] or disrepute” any “persons, living or dead.” 15 U.S.C. § 1052(a). Taken literally, as Justice Alito’s opinion noted, that would bar not just trademarks widely considered offensive, but even marks like

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 47

SUPREME COURT WATCH “Down with racists” or “James Buchanan was a disastrous president.” It is not surprising the bottom-line result was unanimous in both cases.

But what is notable is that the Court did not simply in-

“While we now may be coming to the realization that the Cyber Age is a revolution of historic proportions, we cannot appreciate yet its full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.”

— Justice Anthony Kennedy

validate these specific poorly drafted statutes while reserving the question of whether narrower restrictions on speech might have survived. (Justice Alito’s concurring opinion in Packingham would have done so, but the majority rejected this approach.) Rather, the Court’s language in each opinion emphasizes core First Amendment values in a way that makes it seem unlikely the Court would have upheld any significant restriction on speech in these contexts. In Packingham, the majority took aim at the very idea of restricting the flow of information online, even applied to convicted sex offenders, whose liberty is already curtailed in certain ways. The Court pronounced it “unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.” The Court reasoned that “[e]ven convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits” from social media, which has become an important “means for access to the world of ideas.”

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If anything, the opinions in Tam were even more emphatic.

The government defended the Lanham Act’s disparagement clause on the ground that it protected “underrepresented groups” from “demeaning messages in commercial advertising”—an argument the Court rejected across the board in no uncertain terms. The notion that the government “has an interest in preventing speech expressing ideas that offend,” Justice Alito wrote, quoting Justice Oliver Wendell Holmes, Jr.’s, dissenting opinion in a 1929 case, “strikes at the very heart of the First Amendment. … [T]he proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Justice Kennedy’s opinion similarly concluded that the disparagement clause was “the essence of viewpoint discrimination” because it “reflects the Government’s disapproval of a subset of messages it finds offensive.” And outside the narrow context of the government’s own speech—a line of cases the Court deemed inapposite in the trademark setting— restrictions that discriminate based on the speaker’s viewpoint are categorically impermissible.

One must always be careful about reading too much between the lines of Supreme Court opinions, but the Court’s full-throated reaffirmation of these core First Amendment principles now may not be a coincidence. It is a foreboding time for defenders of free speech, not just in the ­United States but around the globe as well. President Donald Trump, as you might have heard, is not a big fan of the news media. He also makes no effort to hide his admiration for foreign leaders who crack down forcefully on dissent, in countries like Saudi Arabia, Egypt, Turkey, and (of course) Russia. That surely does not sit well with the justices—especially Justice Kennedy—who care passionately about promoting civil liberties and the rule of law abroad.

The left, for its part, seems to have stepped back signifi­ cantly from its traditional support for free speech. One prominent constitutional law professor told me recently that this year, for the first time in his decades of teaching, multiple students were shocked and dismayed to discover that “hate speech” is protected by the First Amendment.

The past year has also seen a number of high-profile efforts by some on the left to silence controversial speakers on cam-

SUPREME COURT WATCH pus, like Charles Murray at Middlebury College and Milo Yiannopoulos at UC Berkeley. Survey data bear out these anecdotes: the Pew Research Center reported in 2015 that 40 percent of millennials in the United States think the government should be able to ban people from making public statements offensive to minorities, compared to just 12 percent of elderly Americans.1 These sentiments, though, have so far gained virtually no traction in the judiciary. In recent years, the Supreme Court has emphasized time and again that the First Amendment protects all sorts of nasty, demeaning, and seemingly valueless speech, such as dogfighting videos (United States v.

Stevens (2010)), homophobic protests at military funerals (Snyder v. Phelps (2011)), and false claims of having won military medals (United States v. Alvarez (2012)). The opinions this term in Packingham and Tam signal that the Court is sticking to its guns, regardless of which way the winds are blowing in society at large. Indeed, one of the main beneficiaries of the Court’s opinion in Tam is an entity whose brand is increasingly viewed as racist: the Washington Redskins football team. Their trademark is now safe from challenge in a court of law, if not in the court of public opinion.

A LOOK AHEAD: MASTERPIECE CAKESHOP These recent opinions may also shed some light on what the Court will do in one of the upcoming term’s most closely watched cases, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. In Masterpiece Cakeshop—which the Court finally agreed to hear in June after pondering the cert petition for more than six months—the Colorado Civil Rights Commission ordered Jack Phillips, a Christian ­baker, to provide a wedding cake for a same-sex marriage under the state’s public accommodations law. Phillips and his bakery contend the order violates both the free speech and free exercise clause of the First Amendment.

The case has been billed, understandably, as a showdown between religious freedom and antidiscrimination law. But it may turn out to be less about that and more about the art of designing and baking cakes. The bakery’s free exercise

claim faces a major obstacle—namely, Justice Antonin Scalia’s opinion for the Court in Employment Division v. Smith (1990), which held that neutral laws of general applicability ordinarily do not violate the free exercise clause. But the bakery’s free speech claim appears to be stronger. There may well be five (or more) justices who would hold that a baker, of whatever religion, cannot be compelled to create a cake containing expressive content—whether it be a design showing two grooms dressed in tuxedos or simply a message congratulating a couple on their marriage. That would be a way to resolve the case narrowly on grounds that may command a broad consensus on the Court, protecting the free speech rights of a small category of vendors engaged in artistic expression (specialty bakers, florists, wedding planners, and so on), while making clear that those not engaged in such expression (shuttle companies, hotels, bakers selling generic premade cakes, and the like) must serve same-sex couples and opposite-sex couples equally. (Surely, all couples deserve the opportunity to be ripped off by overpriced wedding vendors.)

Of course, only time will tell if the Court opts for this approach. But it would be in keeping with the Court’s recent First Amendment cases, and would also be a fitting capstone to Justice Kennedy’s career, which has blazed new paths in both free speech and gay and lesbian rights. Same-sex marriage is the law of the land, and those who continue to oppose it may well find that their views are widely regarded as wrongheaded, even bigoted. But just as government officials in a free society cannot force a rock band to stop using an offensive name, so too they may not dictate to individuals and communities of faith what to believe or say about the nature of marriage.

Josh Patashnik is an associate at Munger, Tolles & Olson and clerked for Justice Anthony Kennedy in October Term 2012.

Note 1. http://www.pewresearch.org/fact-tank/2015/11/20/40-ofmillennials-ok-with-limiting-speech-offensive-to-minorities/.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 49

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 51

THE DEFEND TRADE SECRETS ACT: A YEAR IN REVIEW Sebastian Kaplan

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he United States District Court for the Northern District of California is at the center of trade secrets litigation. Of the hundreds of complaints filed alleging causes of action under the Defend Trade Secrets Act (DTSA) since its enactment on May 11, 2016, the majority have been filed in this district. It should come as no surprise that this court has issued more decisions concerning the DTSA than any other jurisdiction.

The Northern District of California dominates trade secrets litigation quantitatively and qualitatively. Judge

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Jon S. Tigar granted the first temporary restraining order in a case brought under the DTSA, less than a month after the statute’s enactment date. Henry Schein, Inc. v. Cook, No. 16-cv-03166JST, 191 F. Supp. 3d 1072 (N.D. Cal. June 10, 2016) (Tigar, J.). And later trade secrets disputes between technology giants have garnered significant media attention, most obviously Google’s and Waymo’s action against Uber (Case No. C 17-00939 WHA), but also SolarCity’s action against SunPower (Case No. 16-CV-05509-LHK) and Space Data’s case against Google X (Case No. 16-CV-03260-BLF).

The San Francisco Bay Area is leading a larger trend of burgeoning trade secrets litigation. The new federal law has triggered nearly a doubling of trade secrets complaints filed year over year. For attorneys advising clients on how to protect valuable intellectual property, it is essential to follow the key developments in federal jurisprudence of trade secrets law.

PRELIMINARY RELIEF IS POSSIBLE, BUT DIFFICULT, TO OBTAIN Federal courts are clear that preliminary relief should be reserved for extraordinary circumstances. The DTSA allows for three main forms of preliminary relief: an ex parte seizure order, a temporary restraining order (TRO), and a preliminary injunction.

Many legal scholars expressed alarm at early drafts of the DTSA because its ex parte seizure provisions appeared ripe for abuse. But those fears do not appear to have materialized. Only one public case to date has granted an ex parte seizure order, and only after the defendant repeatedly evaded service. See Mission Capital Advisors, LLC v. Romaka, No. 1:16-cv-05878-LLS, Dkt. 7 (S.D.N.Y. July 29, 2016). In contrast, other courts have declined to grant requests for a seizure order in deference to alternative forms of relief, like expedited discovery and preservation orders. See Dazzle Software II, LLC v. Kinney, No. 16-CV-12191, Dkt. 20 (E.D. Mich. July 18, 2016); OOO Brunswick Rail Management v. Sultanov, 2017 WL 67119 (N.D. Cal. Jan. 6, 2017).

Although a seizure order appears nearly unobtainable, trade secrets owners have had more mixed success in obtaining TROs and preliminary injunctions. Courts most frequently deny requests for a TRO because plaintiffs fail to show a THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 53

genuinely imminent risk of harm. For example, Primo Broodstock, Inc. v. American Mariculture, Inc., 2017 WL 393871 (M.D. Fla. Jan. 29, 2017).

Several plaintiffs have obtained TROs and preliminary injunctions of limited impact. In the very first order providing relief under the DTSA, for example, Judge Tigar set a trend by enjoining the defendant, a former employee, from disclosing plaintiff’s trade secrets, but did not enjoin her from soliciting plaintiff’s customers. Henry Schein, Inc. v.

Cook, 191 F. Supp. 3d 1072 (N.D. Cal. 2016). Similarly, in AllCells, LLC v. Zhai, 2017 WL 1173940 (N.D. Cal. Mar. 29, 2017), the court granted a preliminary injunction, but only to bar defendants from using any confidential information allegedly misappropriated from the plaintiff.

Only a handful of decisions—involving unusually compelling allegations of wrongdoing—have granted preliminary relief enjoining defendants from employment or from soliciting customers. Recently in Waymo LLC v. Uber Tech., Inc., 2017 WL 2123560 (N.D. Cal. May 15, 2017), Judge William Alsup found that Waymo “has shown compelling evidence that its former star engineer, Anthony Levandowski, downloaded over 14,000 confidential files from Waymo immediately before leaving his employment there.” In addition to ordering the return of those files and expedited discovery, the court preliminarily enjoined Uber to “remove [Levandowski] from any role or responsibility pertaining to LiDAR,” a key technology in developing driverless cars.

The Waymo injunction echoes similar provisional relief ordered outside this jurisdiction. In T&S Brass and Bronze Works, Inc. v. Slanina, 2017 WL 1734362 (D.S.C. May 4, 2017), defendants sold their company to plaintiff and then allegedly began a competing business using the same trade secrets they had just sold. The district court granted a preliminary injunction barring use of the trade secrets and any business with a broad range of customers. In Protection Technologies, Inc. v. Ribler, 2017 WL 923912 (D. Nev. Mar. 8, 2017), Protech alleged that Ribler, its former employee, in the early morning hours after he was terminated, downloaded information from Protech’s customer manage-

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The San Francisco Bay Area is leading a larger trend of burgeoning trade secrets litigation.

The new federal law has triggered nearly a doubling of trade secrets complaints filed year over year.

ment system to a private drive. The court enjoined Protech’s former employee from soliciting business from Protech’s customers or assisting another person from doing so. In Panera, LLC v. Nettles, 2016 WL 4124114 (E.D. Mo. Aug. 3, 2016), the district court enjoined Papa John’s from hiring Nettles, because Nettles wiped his Panera work-computer before returning it.

COURTS ARE EAGER TO DISMISS CLAIMS UNDER THE DEFEND TRADE SECRETS ACT Of the more than two dozen decisions adjudicating motions to dismiss claims under the DTSA on issues of substantive law—as opposed to jurisdictional or procedural grounds— most courts have dismissed the trade secrets claim, although usually without prejudice.

The first trap for the unwary concerns timing. The DTSA only applies to conduct after its May 11, 2016, enactment date. But that conduct may be the disclosure or use of trade secrets information, even if the improper acquisition of the trade secrets occurred earlier. Molon Motor and Coil Corp. v. Nidec Motor Corp., 2017 WL 1954531 (N.D. Ill. May 11, 2017) (holding plaintiff adequately alleged continuing use). A troika of local decisions, however, dismissed DTSA claims that failed specifically to allege postenactment conduct. See Space Data Corp. v. X, 2017 WL 3007078 (N.D. Cal. July 14, 2017); Cave Consulting Group, Inc. v. Truven

Health Analytics Inc., 2017 WL 1436044 (N.D. Cal. Apr. 24, 2017); Veronica Foods Company v. Ecklin, 2017 WL 2806706 (N.D. Cal. June 29, 2017). But other courts have been more generous when a complaint does not distinguish between pre- and postenactment conduct. Singer v. Stuerke, 2017 WL 2603305 (D. Nev. June 14, 2017) (rejecting that complaint should be dismissed for not specifying postenactment conduct, but dismissing the DTSA claim on other grounds).

The second trap is to fail to allege a nexus to interstate commerce. District courts have granted motions to dismiss DTSA claims for simply omitting this element of the claim. For example, Hydrogen Master Rights, Ltd. v. Weston, F.Supp.3d, 2017 WL 78582 (D. Del. Jan. 9, 2017).

The third and most challenging trap is to fail to identify trade secrets with adequate specificity where it appears some of the alleged trade secrets are public. In Veronica Foods, for example, US Magistrate Judge Joseph C. Spero dismissed the DTSA claim because the pleadings failed to identify the portions of plaintiff’s customer list that were allegedly secret.

Similarly, in Profil Institut fur Stoffwechselforschung GMBH v. Prosciento, Inc., 2017 WL 1198992 (S.D. Cal. Mar. 31, 2017), the court dismissed part of the trade secrets claim concerning trade secrets that plaintiff failed to distinguish from general knowledge in the industry.

THE INEVITABLE DISCLOSURE DOCTRINE IS NOT GOING AWAY California trade secrets litigators know that other jurisdictions will enjoin an employee from competitive work if it appears the employee’s general knowledge and expertise create a likelihood that they will “inevitably disclose” trade secrets, but that doctrine has been roundly rejected in this state. The DTSA sought to preserve the jurisdictional variance: it does not permit courts to issue an injunction based “merely on the information the person knows” under the statute, but also does not supersede state law. See Express

Scripts, Inc. v. Lavin, 2017 WL 2903205 (E.D. Mo. July 7, 2017) (granting TRO under state trade secrets law on theory of inevitable disclosure).

The US Court of Appeals for the Third Circuit recently called attention to the inevitable disclosure doctrine. In Fres-co Systems USA, Inc. v. Hawkins, 2017 WL 2376568 (3rd Cir. June 1, 2017), Fres-co sued former sales employee Hawkins for trade secrets misappropriation. The district court issued a preliminary injunction barring Hawkins from disclosing confidential information or soliciting the twelve clients he served while working for Fres-co. The Third Circuit remanded, holding the district court failed to address three of the four factors for issuing a preliminary injunction—likelihood of success, balance of the hardships, and the public interest, but preserving the injunction pending reconsideration. In addressing irreparable harm, the Third Circuit stated: “Given the substantial overlap (if not identity) between Hawkins’s work for Fres-co and his intended work for Transcontinental—same role, same industry, and same geographic region—the District Court was well within its discretion to conclude Hawkins would likely use his confidential knowledge to Fres-co’s detriment.” The Third Circuit did not, however, cabin that holding to the state law trade secrets claim.

Trade secrets litigation is likely to increase over time, particularly as courts appear to be placing restrictions on patent litigation. Companies and employees can minimize exposure to trade secrets disputes by setting out clear expectations at the outset of an employment or business relationship, but trade secrets owners need to be prepared to act quickly if a relationship deteriorates and there is a serious risk of misappropriation.

Sebastian Kaplan litigates high-stakes intellectual property disputes involving trade secrets, trademarks, and copyrights. He also defends technology innovators from privacy and false advertising class actions. Kaplan's clients have included TomTom, AlEn USA, Nimble Storage, and others, ranging from large technology companies to newly minted start-ups.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 55

LESSONS LEARNED FROM

MANAGING LARGE MULTIPLAINTIFF LAWSUITS Mary Catherine Wiederhold

I

f you work in a solo or small firm, you don’t have much support staff to help you manage large multiplaintiff lawsuits.

It’s up to you to use your resources wisely; otherwise, you can quickly lose track of the details. I have learned a few lessons, sometimes the hard way, from handling these types of cases in my own small firm.

How to get multiplaintiff cases is another topic, so let’s assume you already have one. Assume too that you have the financial resources to fund such cases, since most of them will be on contingency. You will have to pay for costs of the lawsuit out of your own pocket.

Furthermore, you will not be earning income unless the case is settled or the jury decides in your favor.

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Some of these cases will take eighteen to twenty-four months or more to resolve. Therefore, if you don’t have the assets to allocate, then consider partnering with another law firm that does.

Drafting the Complaint I have found that drafting the complaint and handling discovery demand superb organization. Being organized will save you from wasting time in the long run and help you best serve your clients.

QUESTIONNAIRE After you have signed retainer agreements, provide each plaintiff with a questionnaire you have created for this specific case. Each questionnaire should be thoughtfully prepared to help you draft the complaint. The time you take to develop the questions will save you time in the future.

My forms have the client name and contact information at the top in an easily readable format. Then the forms generally have “yes” or “no” questions that help separate the clients based on what I think are the issues of the case.

The form has open-ended questions for clients to write about their experiences. Leave plenty of space for these answers, because if the plaintiffs write in detail, it may provide you with helpful information.

While you might be tempted to design the questions as if you were cross-examining a witness, resist this impulse. Nor should your questions be the same ones you would use in discovery. Most clients do not have a lot of court experience.

Since this is likely your first real interaction with your clients, you will want questions that are easily understandable. You can still elicit the information you need.

INFORMATION FOR THE COMPLAINT After reflection and research on the many probable causes of actions, the next job is to interview the plaintiffs to obtain more specific details. This will help you determine what causes of action concern each plaintiff.

The interview process takes a considerable amount of time.

If you do not have a paralegal or attorney in the office with time to contact the clients, then hire another attorney whose work you trust to do this task. The interview process is important because it helps you obtain facts to write your complaint, as well as build relationships with the clients that could help you later in the case.

A quick-thinking interviewer can ask questions spontaneously, but I suggest that the interviewer have a list of questions at the top of the paper on which the notes will be written. This way, the interviewer can ensure that your main questions were all asked.

Sometimes clients have an idea of the causes of actions. For example, many of my clients, who are residential tenants, will say that they have been “defrauded.” However, a skilled interviewer will ask details that will help you determine whether their experience is applicable to the cause of action.

The interviewer should ask follow-up questions to elicit more details, particularly if the plaintiff is reticent for some reason. Many tenants are fearful of retaliation because they are taking a stand by speaking against the actions of the landlord and are fearful of management retaliation. During the interview, reassure the client that since he or she is represented by an attorney, it may guard against retaliation.

At the end of the conversation, I prefer the interviewer to ask clients whether there is anything else they would prefer to be known and whether they know of any other people who might want to be part of the lawsuit.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 57

The interviewer should type up the notes and highlight issues that naturally fall under the proposed causes of actions. If any additional questions arise, by all means contact the client again and emphasize the importance of accuracy.

Most people do not mind being called a second time if the interviewer handles the telephone contact professionally.

Getting this aspect of the case right is an important part of drafting a good complaint.

DIFFERENT CAUSES OF ACTION IN THE COMPLAINT I once had a multiple-client case that involved a large apartment complex and a landlord that attempted to downplay the scope of a construction defect and minimize the time it would take to remedy the defect.

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In order to keep track of the details, a spreadsheet proved handy for organizing the data. I divided the clients into three groups, depending on their move-in date. These groups allowed me to draft the complaint with several different causes of action, some of which did not involve all plaintiffs. For example, some plaintiffs were told about the construction when they toured the complex. Others were not told about the construction before they moved in and woke up to find workers and scaffolding outside of their windows.

After I drafted the complaint, I noted in my spreadsheet the specific paragraph in the complaint where each client was mentioned. Later, when proofing the complaint, I could refer to the spreadsheet for accuracy.

You may not be a fan of spreadsheets, but they are useful for showing the big picture on one sheet of paper and manipulating the data.

ORGANIZING DISCOVERY Spreadsheets are also helpful to organize discovery. Yes, it demands discipline, but it is worth taking the time to keep your information up to date. It will pay off when something is due from the plaintiffs or defendants.

A spreadsheet format that works well for my cases is set up as follows: The first column notes the date when the discovery is mailed and the second column is the type of discovery.

Next come the names of each defendant, followed by the dates defendants mailed the discovery back, and whether the discovery was verified.

I also have a column for the date discovery is due, and the date I send out my meet and confer letter. The next column has the date to file a motion to compel.

Organization is key to handling multiplaintiff lawsuits for solo and small firms.

In one of my cases, a large law firm sent out a meet and confer letter objecting to the plaintiffs’ responses regarding their requests for admissions. A review of my spreadsheet helped me to respond quickly that the defendants were out of time to file a motion to compel. Having that information at my fingertips paid off.

ORGANIZATION IS KEY PLAINTIFFS’ DISCOVERY A spreadsheet listing all the plaintiffs’ names is extremely helpful for keeping track of the mailing dates for forms and special interrogatories, requests for admissions, and requests for documents. I also use this spreadsheet to list whether a plaintiff reviewed the discovery responses and signed the verifications. How do I know they reviewed the responses?

The verifications are the last page of their responses after my signature.

Organization is the key to handling multiplaintiff lawsuits for solo and small firms. Once you know how to organize your information, you will be able to handle this type of case more easily. It will help you compete with other firms, save you time and stress, and most of all, benefit your clients.

Mary Catherine Wiederhold represents residential tenants at the Law Offices of Mary Catherine Wiederhold. She is the 2017–2018 president of the Lawyers’ Club of San Francisco Inn of Court and writes regularly about issues involving residential tenants and small firms.

DEFENDANTS’ DISCOVERY In my multiplaintiff cases, I frequently have multiple defendants and it is particularly important to keep track of discovery. This spreadsheet grows as different discovery is sent to the defendants.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 59

THE FIRST SOLO & SMALL FIRM ANNUAL CONFERENCE Kyle Schriner

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The first Solo & Small Firm Annual Conference, held on February 9, 2017, was a resounding success. There were 122 registrants who attended a variety of MCLE programs related to the conference’s theme of using technology to improve law practice. The conference provided a great opportunity for solo and small firm attorneys to come together to network, improve their knowledge and use of technology, and learn from each other’s successes.

Keynote speakers were the nationally recognized Adriana Linares, a legal technology consultant with LawTech Partners, and San Francisco Superior Court Judge Daniel Flores. Linares addressed the quickly developing world of legal technology, recommending tools and solutions to the audience using humor, data, and anecdotes.

In addition, participants were able to choose from MCLE programs that focused on starting a law firm, e-discovery, substance abuse, and ERISA. Preconference workshops

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that addressed law firm business plans, best intake practices, and building a profitable law firm ethic were available in the morning.

The conference ended with a reception that provided a great opportunity to connect with other members of the vibrant solo and small firm community. The majority of attorneys in the Bay Area are part of this community, a pillar of the legal profession that represents individuals and organizations in every imaginable legal matter.

Going forward, this conference will be a centerpiece of the Solo and Small Firm Section’s dedication to strengthening its community. Please join us for the next annual conference on February 8, 2018. The cochairs of the planning committee are Terry Szucsko of Lvovich & Szucsko and Brittny Bottorff of the Maier Law Group.

Kyle Schriner is the principal attorney at Schriner Law Firm, a litigation firm in San Francisco that focuses on commercial, employment, and real estate litigation.

SAVE THE DATE

Second Annual

Solo/ Small Firm Conference February 8

Loving Your Law Practice BASFâ&#x20AC;&#x2122;s Solo & Small Firm Section invites you to attend its second annual conference on February 8, 2018. The conference will present a variety of MCLE programs around the theme of Loving your Law Practice. Many programs will focus on how solo and small firm owners can raise their legal practice to the next level.

February 8, 2018

BASF Conference Center 301 Battery Street, Third Floor San Francisco, 94111 Event Code: G182803 More information to be announced.

SOLO & SMALL FIRM

S E C T I O N

www.sfbar.org/solo-conference THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 61

Summer of Law

Students Learn Practical Legal Skills While Making a Difference in Tenantsâ&#x20AC;&#x2122; Lives Erin Katayama

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his summer, I supervised students from Golden Gate University (GGU) School of Law who were assisting in the representation of tenants in unlawful detainer lawsuits as part of the GGU Honors Lawyering Program (HLP). HLP is designed to integrate classroom theory with hands-on practical legal work.

The students I worked with focused on unlawful detainer law in San Francisco, and the nine students in my section represented San Francisco tenants in six different eviction cases over a twomonth period.

Although the students were broken up into groups, they all shared their cases with each other and brainstormed strategy and case law during classes. This helped students get exposure to a unique variety of cases and issues during the course. The following are highlights of the casework taken on by the students.

Koohyar Hasanizadeh and Cecile Vue worked on a case for a long-term tenant in subsidized housing accused of alleged nuisance. Upon further investigation, the students discovered that this disabled tenant was being denied the right to reasonable accommodations, that there were valid defenses to the alleged incident, and that the tenant may have been the victim of violence rather than the perpetrator.

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Hasanizadeh and Vue conducted site visits and discovered Fair Housing Act violations at the building. They decided to file a complaint, which is still being investigated, on behalf of their client with the Department of Fair Employment and Housing. Throughout their summer course, Hasanizadeh and Vue drafted deposition questions, requested and reviewed discovery, interviewed doctors, reviewed medical records, analyzed videos, and participated in ongoing settlement negotiations. Although this case has not yet been resolved, the parties are currently negotiating a settlement that will enable this long-term disabled tenant to keep his subsidized housing.

Devin Fathi and Joseph Alvarez worked on a case for a longterm tenant in private housing. The tenant being evicted was once a teacher in the San Francisco Unified School District who could no longer do that job because of an injury.

Unfortunately, her new income was not enough to pay rent in her current housing. She found herself unable to make rent payments and was behind by six months. After initial interviews, the client represented that her goal was to move to a more affordable location outside of San Francisco but that she wanted to move on her own terms without having an eviction on her record. Fathi and Alvarez conducted site inspections, drafted discovery questions and responses, reviewed copious amounts of discovery, and helped with deposition preparation. During their investigation, the students discovered that several habitability conditions

existed in the unit, some with outstanding notices of violation. Fathi drafted a motion to amend the defendant’s answer so that the defendant could add some newly discovered defenses—including the failure of the landlord to provide a reasonable accommodation. After extensive settlement negotiations the tenant will be moving out of her unit to a place she can afford, her unpaid rent is being waived, and she will receive a monetary settlement upon move-out—all things that will help her with a fresh start.

Daniel Francis Alper and Jaron Lines assisted in the representation of a long-term tenant in subsidized housing who was being accused of nuisance. After conducting an

Erin Katayama, far right, with Golden Gate University School of Law students

initial investigation, Alper and Lines drafted two reasonable accommodation requests on behalf of this tenant because it was clear that the alleged incidents were directly related to the defendant’s disability and that her disability could be accommodated. They sent document requests, interviewed the client and her doctor, and conducted a site inspection.

In addition, they drafted discovery, and in doing so they got firsthand experience participating in a discovery dispute.

The opposing counsel first attempted to avoid responding to the discovery, citing a rule that did not exist—something that Alper picked up on immediately. The students insisted that the plaintiff was required to respond to the discovery.

After plaintiff’s counsel missed the discovery deadline and gave an inadequate response to the meet and confer letter,

Daniel Francis and Lines helped draft a motion to compel, seeking sanctions. The outcome of this motion is pending.

Nic Marston, Danielle Allison, and Joseph D’Andre participated in the representation of a long-term tenant who—a week after her mother passed away—was told to move out of her apartment where she had been living since 1995. She is being accused of being a “licensee” rather than a tenant and, according to the plaintiff, is not entitled to any tenant’s rights or protections. Because this case involved complicated theories of property ownership, conservatorship, and possible creations of rights as a tenant, Marston, Allison, and D’Andre conducted extensive file review and research into the history of this case and the law.

Because the facts relevant to this case date back more than twenty years, the students were faced with several challenges including locating very old records and finding witnesses.

They drafted subpoenas, wrote deposition questions, and attended the deposition. Finally, the students decided to dig deeper and found records and transcripts from conservator hearings that took place years prior. Because this case will likely go to trial, Marston, Allison, and D’Andre have been busy doing trial preparation which includes more research and preparing jury instructions. The students are also considering filing a motion for summary judgment. This case is still pending.

By working on real cases, the students gained practical lawyering skills while also obtaining favorable outcomes for their clients. Now that the course is over, the students with unresolved cases have requested to stay involved because they have invested so much of their time in the outcome.

When asked what they learned most from this summer, the students overwhelmingly said that they experienced what it is actually like to litigate a case in a way that cannot be learned in a classroom.

Erin Katayama is a supervising attorney for the Homeless Advocacy Project and an adjunct professor at Golden Gate University working in the GGU Honors Lawyering Program (HLP).

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 63

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