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SAN FRANCISCO C O V E R

S T O R Y

F E A T U R E S

(continued)

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Mobilizing for Justice in Our Community Erin A. Gordon

F E A T U R E S

40

24

Pronoun Power: The Standard for Gender Neutrality Stan Sarkisov and Carleigh Kude

Meet Nemo: San Francisco Unified Family Court’s Facility Dog Kathleen Guthrie Woods

45

photo by Mark Rogers

32

JDC’s Annual Gala Raises More Than $360,000 to Support Pro Bono Programs in Bay Area Steve Love

Helping Those Who Help Others: Transactional Attorneys Strengthen Nonprofits that Provide Direct Ser vices to Low-Income Communities Gloria Chun

50

Who Knew the Courts Adopted Commonsense Professional Guidelines?

Joanna L. Storey 2 WINTER 2017

ATTORNEY A Publication of The Bar A ssociation of San Francisco

F E A T U R E S

(continued)

54

Understanding Leaves Sonya Smallets

WINTER

2 017

C O L U M N S

6

PRESIDENT’S REPORT Making a Difference in Our Community Merri A. Baldwin

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BARRISTERS CLUB REPORT Sur vey Results: Practical Skills Initiative Adam I. Kaplan

photo credit: Mike Ngo, #WOCinTech Chat

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Effective Mediation: Stating the Obvious Because the Obvious Needs Restating Guy O. Kornblum photo by Joseph Fletcher

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Protecting the Malpractice Statute of Limiations Defense Daniel W. Hager

4

BOARD OF DIRECTORS

4

MISSION STATEMENT

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, Eric Johansson, 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, Katie Glynn, John Hamasaki, Kelly Matayoshi, Phyra McCandless, Sean McHenry, Jessica Ryland, Pierre Zado

SAN FRANCISCO ATTORNEY (ISSN 0744-9348) Volume 43/Number 4.

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 WINTER 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 Gloria Chun 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 Three Decades of Scholarships The Ocean Beach human banner was organized by Gabriella Musacchia of twwsfbay.org, Brad Newsham, and Renee McKenna. An estimated 1,000 people came together on Saturday, August 26, 2017, to form a giant heart as a peaceful response to planned far-right rallies in the Bay Area. photo by Joseph Fletcher

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 5

PRESIDENT’S REPORT

Making a Difference in Our Community Merri A. Baldwin

W

e are nearing the end of an eventful year. Collectively, we at The Bar Association of San Francisco (BASF) and the Justice & Diversity Center (JDC) have done so much, but there is no end in sight. In my last column of the year, I want to celebrate our successes and the great work we have done, and encourage us all to stay the course as we move forward. We are making a tangible difference in our community.

Merri A. Baldwin

6 WINTER 2017

PRESIDENT’S REPORT

Thanks to all those who contributed time (and money) to JDC and its clients. The numbers give an indication of the impact: 1,683 attorneys, paralegals and law students volunteered this past year, donating more than 45,000 hours of their time. In addition, the legal community donated more than $6 million to JDC last year. Altogether, the value of legal services provided to the community through JDC exceeded $20 million.

But more than the numbers, our success is about providing access to justice for real people with very real problems, who have very few options and even fewer resources to find or retain an attorney. Thanks to the dedicated and talented JDC staff attorneys and paralegals, and to all the lawyers, and law firm and in-house staff who assisted our JDC clients. I am personally looking forward to having more time next year to devote to JDC client representation, and I welcome all new and returning volunteers to join me in providing pro bono services.

In 2017, BASF and JDC helped mobilize significant resources to address immigration issues including the representation and defense of detained persons, who face deportation under very difficult circumstances. Thanks too to the members of the Immigration Task Force, formed this year, to help provide expert resources and input to help shape JDC’s immigration work, as well as provide community resources and assist in preparing the organizations’ public statements and policy development.

These members include Khaldoun Baghdadi, Walkup, Melodia, Kelly & Schoenberger; Christine Brigagliano, Van der Hout, Brigagliano & Nightingale; Doris Cheng, Walkup, Melodia, Kelly & Schoenberger; Alicia Gámez, Law Office of Alicia M. Gámez; Bill Ong Hing, University of San Francisco School of Law; Sebastian Kaplan, Gerard Fox Law; Chris Kearney, Keker Van Nest & Peters; Vid

Prabhakaran, Davis Wright Tremaine; Tony Schoenberg, Farella Braun + Martel; and Jayashri Srikantiah, Stanford Law School. Along with me as task force chair, the following BASF/JDC staff complete the group: Yolanda Jackson, BASF/JDC executive director; Carole Conn, public service programs director; and Avantika Shastri, legal director, San Francisco Immigrant Legal Defense Collaborative.

Further thanks are due to the staff, volunteers and donors who make our diversity pipeline programs thrive. This year, we provided four impressive young people with new law school scholarships; provided high school students with assistance in learning about and applying to college through our School-To-College program; and opened doors of opportunity with Mock Trial and Law Academy.

I personally thank all who participated in our inaugural debate-training program at the Juvenile Justice Center, and I am committed to seeing us continue that program in collaboration with Bay Area Urban Debate League.

We have a deep bench at BASF and JDC. There are so many other ways that our members and volunteers contribute. The

1,683 attorneys, paralegals and law students volunteered this past year, donating over 45,000 hours of their time.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 7

PRESIDENT’S REPORT

boards of directors of BASF, JDC, and the Barristers Club are made up of talented and committed professionals who are working to improve our profession and community. I appreciate all of the hard work of my fellow officers: Malcolm Heinicke, Munger, Tolles & Olson; Doris Cheng, Walkup, Melodia, Kelly & Schoenberger; and Stuart Plunkett, Baker Botts. I look forward to supporting the great work they will do as we move forward. BASF’s sections and committees create a vibrant legal community and foster meaningful relationships among our members and the larger legal and judicial communities.

in court services and programs. These cuts affect the very ability of the courts to effect justice and will impact all litigants. BASF will work with the court as well as other organizations to both try to leverage more funding as well as do what we can to minimize the impact of the cuts. But this issue won’t go away.

So there is much to celebrate and recognize. But we cannot lose sight of the challenges ahead for all these programs and efforts, especially those that serve the vulnerable members of our community. I want to highlight one issue in particular.

The San Francisco Superior Court experienced a $5.3 million budget gap this year, and the shortfall is projected to be even higher next year. Court staff was furloughed and judges voluntarily gave up salary. These sacrifices are not sustainable, and we will almost certainly see a decrease

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 and can be reached at mbaldwin@rjo.com.

8 WINTER 2017

I have been honored to serve as president of BASF and JDC this year. The experience has only magnified the respect I have for this great institution, and I am not going away. See you out there.

THE BAR ASSOCIATION of SAN FRANCISCO

THURSDAY DECEMBER 14, 2017

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

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BARRISTERS CLUB REPORT

SURVEY RESULTS: Practical Skills Initiative

L

Adam I. Kaplan ast year, the Barristers Club Board of Directors launched a Practical Skills Initiative (PSI) to advocate for increased practical skills development opportunities for junior attorneys and to help prepare junior attorneys to knock it out of the park when they get those opportunities. The current board has worked hard to drive and expand these twin efforts.

In 2017, board members and leaders in the club have:

• met with judges to promote “next-generation judicial orders” and propose local rules and court guidelines aimed at encouraging law firms to have junior attorneys argue motions and take speaking roles at trial; • organized “Practical Courtroom Tips for Associates” programs at the San Francisco Superior Court and the US District Court for the Northern District of California; • helped San Francisco Superior Court Presiding Judge Teri Jackson and the Rev. Dr. Amos Brown organize a community “Meet the Judges” event at the Third Baptist Church of San Francisco; and • launched a “Public Speaking Practice Group” held at the Bar Association of San Francisco (which I discussed in my report in the fall edition of this magazine).

10 WINTER 2017

Adam Kaplan

BARRISTERS CLUB REPORT An additional PSI component involved collecting data to understand at which point in their careers Barristers Club members are getting significant litigation opportunities, how satisfied members are with the timing and nature of those opportunities, and how satisfied members are with their firms’ efforts to support their professional development generally.

District Judge William Alsup—who has long used his standing orders to encourage law firms to give associates more stand-up time in court—suggested this data collection idea when he met with members of the board last year. He had proposed a similar idea in a 2015 article that argued that the legal media “should conduct periodic surveys of law firms to facilitate comparison as to how well they train young lawyers.”1 The Barristers board shares Judge Alsup’s goal of “learn[ing] how well we are doing in training the next generation of lawyers.”2 And, critically, we want to keep this conversation going so that firms will send junior attorneys to the front lines even as oral argument and trial opportunities continue to shrink and the stakes in litigation get bigger and bigger.

With that backdrop, this article outlines some of the key findings of the Barristers Club’s first Practical Skills Initiative Survey.

Overview of the PSI Survey The PSI survey has fifteen questions. You can access (and still complete) the survey here: events.sfbar.org/barristersclub-practical-skills-initiative-survey. Nearly fifty Bay Area attorneys have completed the survey. These attorneys hail from twenty-four different firms varying in size from local firms with fewer than ten attorneys to international firms with more than a thousand attorneys. About 25 percent of the attorneys are from small firms (fewer than ten attorneys) and about 75 percent are from large firms (more than fifty attorneys). The median years of practice among the survey respondents is four years, with the mean being 4.4 years of practice.

A few disclaimers. First, I am not a statistician. And I make no representations as to the validity, reliability, or statistical significance or soundness of the survey results. Selection bias or other biases might well have affected the results.

Second, the snapshot that the survey provides is limited by the fact that we designed the survey to be completable in two minutes or less. Third, as Mark Twain used to say, “there are lies, damned lies, and” you know the rest.

Timing of Major Litigation Experiences Depositions. Fifty-one percent of the attorneys who have been practicing for two or more years had taken or defended a deposition within their first two years of practice. Among attorneys who have been practicing for five or more years, 89 percent had taken a deposition.

Arguing Motions in Court. Sixty-four percent of the attorneys who have been practicing for two or more years had argued a motion in court within their first two years of practice. Among attorneys who have been practicing for five or more years, 84 percent had argued a motion.

Roles at Trial. Twenty-one percent of the attorneys who have been practicing for two or more years had examined a witness at trial within their first two years of practice.

Eight percent had given an opening or closing statement within their first two years of practice. Among attorneys who have been practicing for five or more years, 37 percent had examined a witness at trial, and 21 percent had given an opening or closing statement at a trial.

Two points are worth flagging. First, the survey did not distinguish between types of arguments (for example, discovery motions versus case-dispositive motions), types of clients (for example, paying versus pro bono clients), or types of fora (for example, state or federal court, an administrative body, an arbitration). In a future survey it might be interesting to see whether and how these nuances influence the numbers. Second, attorneys from small firms (fewer than ten attorneys) were overrepresented among the THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 11

attorneys who had the substantive experiences discussed above. They were particularly overrepresented among the attorneys who had examined witnesses at trial and given opening or closing statements at trial.

Firm Support for Professional Development The survey asked whether the attorney’s firm has programs, policies, or tools to help junior attorneys develop practical skills. As examples, the survey listed formal training, shadowing opportunities, mentoring, guidelines or checklists for goals based on practice level, pro bono opportunities, and associate development committees.

Seventy percent of attorneys responded that their firms did have such programs, policies, or tools. Eleven percent of attorneys said their firms did not, while18 percent were not sure.

For attorneys whose firms have minimum billable hour requirements, the survey asked if the attorneys received credit toward those minimum requirements for time spent utilizing the firm’s professional development programs, policies, or tools. Among attorneys whose firms have minimum billable requirements, 37 percent reported that their firms give credit for pro bono hours, 14 percent reported that their firms give credit for other training hours, 37 percent reported that their firms did not give credit for either pro bono or other training hours, and 11 percent were not sure.

As an aside, I’ll add that one attorney who completed the survey noted in the optional comments section that judicial “emphasis on giving junior attorneys more experience gives partners more leverage in convincing clients to hand off opportunities to junior attorneys.” I agree, and have seen and benefitted from this first hand. I was able to argue my first case-dispositive motion thanks to a judge’s standing order that guaranteed oral argument when relatively junior attorneys would be doing the arguing.

12 WINTER 2017

Attorney Satisfaction with Timing of Major Litigations Opportunities The survey asked attorneys: “How satisfied are you with the stage in your career at which your firm provided you with the above [opportunities, i.e., depositions, arguing motions, examining witnesses at trial, giving opening or closing statements] and/or other opportunities to develop your litigation skills?” For attorneys who have been practicing for two or more years, the results were as follows: • • • • •

Very satisfied Somewhat satisfied Neutral Somewhat unsatisfied Very unsatisfied

33 percent 38 percent 15 percent 13 percent 0 percent

After some slicing and dicing, I made the following additional findings. Seventy-nine percent of attorneys who have practiced for two or more years and have taken or defended a deposition reported being Very satisfied or Somewhat satisfied, whereas only 50 percent of the two or more year attorneys who have not taken or defended a deposition reported being Very satisfied or Somewhat satisfied.

Similarly, 80 percent of attorneys who have practiced for two or more years and have argued at least one motion in court reported being Very satisfied or Somewhat satisfied, whereas only 44 percent of the two or more year attorneys who have not argued a motion in court reported being Very satisfied or Somewhat satisfied.

My Two Cents In my view, these results are “Somewhat satisfying.” The percentages of attorneys who have taken or defended depositions or argued motions in court relatively early in their careers are higher than I expected they would be. Then

again, the Barristers are an impressive lot—and thanks may be in order to our progressive firms and clients and to our supportive state and federal judges in Northern California.

At the same time, the level of satisfaction with the timing and nature of the opportunities attorneys are getting is not as high as I think it can and should be. To some, this might indicate that attorneys these days are too hard to please.

But that is not how I see it. To me, the PSI survey indicates that even if Barristers-level attorneys are doing pretty well in the Bay Area, there is nonetheless meaningful room for improvement. And important work still to be done.

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.

Notes 1. Judge William Alsup, Training the Next Generation: Do It!, ABTL

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The next

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San Francisco Superior Court Presiding Judge Teri Jackson and Judges Curtis Karnow and Mary Wiss, of the Complex Division, will host this program.

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 13

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Mobilizing for Justice in Our Community Erin A. Gordon

F

or 145 years, the Bar Association of San Francisco (BASF) has championed equal access to justice and provided legal services to the city’s disadvantaged and underserved populations. To further that mission, BASF forty years ago established what is now known as the Justice & Diversity Center (JDC), a direct provider of legal services to the community’s most defenseless individuals, a program that today is the largest of its kind in Northern California.

While the legal services provided by BASF and JDC are always necessary, they’ve never been more so since the arrival of President Donald Trump’s administration, which has ushered in drastic policy changes that disproportionately impact the nation’s most vulnerable people. Anticipating this, BASF/JDC’s leaders and members got to work immediately after the November 2016 election, preparing both to speak out against and to minimize the effects of President Trump’s harshest policies through a range of community response actions.

16 WINTER 2017

Impressions from the Good Ally conference in January 2017

“This president has exhausted all of us,” explains Julie Traun, BASF’s director of court programs. “The Bar Association’s leadership has stepped into this place to protect people at risk of losing civil liberties. It’s been nothing short of triage in an ER. When Trump was elected, lawyers rose to a call of action like nothing I’ve ever seen.”

Since November 2016, BASF/JDC leaders have gathered every week to address issues related to immigrants, the homeless, and other at-risk populations. “We’re continually informing ourselves so we can be nimble and address issues sooner rather than later,” Traun adds. There have been so many needs arising from this administration’s policies that “we can barely keep up.”

According to BASF president Merri Baldwin, it’s an important time to be a lawyer. “We face great changes

as a country, changes that will have real and potentially devastating impacts in San Francisco. Many people in diverse communities face physical threats as well as potential loss of legal protections and financial and other support. We as lawyers understand the importance of equality and fairness, as well as the critical role lawyers play in helping ensure that all members of our community have access to justice.”

Half of JDC’s clients are immigrants, ill, disabled, seniors, or domestic violence survivors, says JDC’s Director of Pro Bono Legal Services Programs Gloria Chun. “These are the most marginal populations in San Francisco.”

Aware that the new administration’s proposed policies would not favor those people, BASF wasted no time in organizing to protect them. Former BASF President Kelly THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 17

photo credit: Joseph Fletcher

Dermody, Lieff Cabraser Heimann & Bernstein, had an idea: “What if civil rights and social justice community leaders could inform the legal community about what they were anticipating and tell the legal community how to be a good ally?” Thanks to her leadership and hard work, the idea grew into action. In January, the bar association cohosted “How to Be a Good Ally: A Strategic Engagement Conference,” an event at the Bill Graham Civic Auditorium that attracted more than 1,300 members of the legal community.

The next month, JDC launched a “volunteer pop-up,” giving attorneys the chance directly to assist marginalized communities. “It was an opportunity for potential volunteers to talk with supervising attorneys, ask questions, and be able to plug in and get involved quickly,” Chun says.

No fewer than 150 people showed up, which was “beyond our wildest hopes,” she adds. “We’ve also experienced an uptick in lawyers coming to our regular trainings. It’s been very heartening.”

Not surprisingly, immigration has been a huge focus of BASF and JDC’s work this year. “It makes all the sense in the world” to focus on helping immigrants, Baldwin says.

18 WINTER 2017

Carole Conn, director of public service programs, San Francisco–Marin Lawyer Referral Service, Alternative Dispute Resolution, and Immigrant Legal Defense Programs, says Trump has been “an agitator, especially in the immigration arena.” In response, BASF issued a public statement denouncing Trump’s executive order denying immigration and safe harbor based on country of origin and religion.

““BASF WILL CONTINUE TO WORK FOR DIVERSITY, EQUITY, AND FAIRNESS, TO FIGHT AGAINST INJUSTICE AND INTOLERANCE, AND TO SPEAK OUT WHENEVER NECESSARY,”” — Merri Baldwin

Trump’s harsh policies have triggered a cultural shift among lawyers, Conn adds. “Three years ago, deportation defense wasn’t sexy. But now with Trump, people see it as a due process issue, a fairness issue. It’s now on the table.”

While the focus recently has been on deportation, Deferred Action for Childhood Arrivals (DACA), and helping individuals detained at borders, immigrants need help in many ways, Chun notes. “We want to help immigrants at all points in time: the immigrant trying to get a divorce from an abusive spouse, the immigrant afraid to stand up against eviction, the immigrant needing consumer debt defense.”

“WHEN TRUMP WAS ELECTED, LAWYERS ROSE TO A CALL OF ACTION LIKE NOTHING I’VE EVER SEEN.” — Julie Traun, BASF

To address increasing demands for immigration services, BASF has expanded its Attorney of the Day program, which provides free lawyers at master calendar hearings in immigration court. JDC also organized a “Call-A-Lawyer Night” for listeners of KALW’s Your Legal Rights program.

And JDC launched a rapid response system to deploy immigration attorneys to San Francisco’s ICE office when necessary and partnered with the American Civil Liberties Union of Northern California and other organizations to develop a Regional Rapid Response Network related to enforcement actions within Northern California.

At a broader policy level, BASF/JDC launched an Immigration Task Force and advisory group to recommend

policies that advance the rights of immigrant communities.

And JDC has served for the last year as lead attorney for the San Francisco Immigrant Legal Defense Collaborative, a group of community-based organizations providing legal representation in removal proceedings, particularly unaccompanied minors and families.

In addition to immigration, increasing acts of intimidation and violence based on race, gender, sexual orientation, religion, and place of origin coincided with Trump’s election. In response, BASF released statements applauding peaceful gatherings and demonstrations of unity in the face of potential violence resulting from right-wing rallies planned in San Francisco and Berkeley in August. BASF also issued statements condemning violence in Charlottesville and the president’s announced plan to bar transgender individuals from military service.

“BASF will continue to work for diversity, equity, and fairness, to fight against injustice and intolerance, and to speak out whenever necessary,” Baldwin says.

Meanwhile, the bar association has continued its efforts to reform police culture. In 2015, it established a task force to examine comprehensively the city’s criminal justice system practices and draft reports supported by data and expert opinion.

“We determined that there’s a role for lawyers to roll up their sleeves in partnership with the police department to prevent a Ferguson situation” from happening here, according to Traun. Comprising prosecutors, law enforcement, defense attorneys, academics, civil rights lawyers, members of the judiciary, and police oversight agencies, the Criminal Justice Task Force has made nearly 300 best practices recommendations to the SFPD. One report, for example, focused on the use of Tasers, which, Traun explains, “we know are used more on vulnerable populations and people of color.”

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 19

2017

BASF/JDC Community Response Actions Standing up to Hate and Threats to Minorities and People of Color

Immigration • Launched an Immigration Task Force to identify, evaluate, and recommend policy opportunities to advance the rights of immigrant communities • Expanded existing immigration program to address current and pending demands for immigration services in the Bay Area • Issued a public statement decrying the executive order denying immigration and safe harbor based on country of origin and religion

• Cohosted “How to be a Good Ally: A Strategic Engagement Conference” that attracted over 1,300 members of the legal community and featured 37 speakers, 40 participating organizations and 13 panel discussions

• JDC staff were featured on KALW’s 97.1 FM Your Legal Rights and organized a “Call-A-Lawyer-Night” for listeners to discuss their questions one-on-one with immigration and family law attorneys • Launched Rapid Response system in San Francisco to deploy immigration attorneys to the San Francisco ICE offices when arrests have been made

• Launched a “Volunteer Pop-Up” to provide opportunities for attorneys to organize and mobilize to address threats to marginalized communities

• Partnered with the American Civil Liberties Union of Northern California and other organizations to develop a Regional Rapid Response Network

• Spoke out against rising acts of intimidation and violence based upon race, gender, sexual orientation, religion, and birthplace

• Created training for superior court judges on U Visa petitions, followed by training for ACCESS Center and legal intake staff to address the reluctance of undocumented victims/witnesses to report crimes to the police and the role of the courts to fill the gap

• Issued a statement condemning President Trump’s announcement to bar transgender individuals from military service • Issued a statement on violence in Charlottesville, condemning acts of violence, hate, and intimidation • Issued a statement applauding peaceful demonstrations of unity in the face of potential violence, when right-wing groups planned rallies in San Francisco and Berkeley the weekend of August 26

20 WINTER 2017

Police Culture and Police Reform • Hosted panel discussion with leadership around police culture and reform • Sent letter of recommendations to the San Francisco Police Commission regarding the Department of Police Accountability

• Criminal Justice Task Force representatives participated on working groups addressing the findings and recommendations of the Department of Justice Report issued October 2016 • Strongly urged San Francisco Police Commission to not approve use of ECW’s (commonly known as Tasers)

Judicial Independence and Respect for the Judicial Branch • Expressed opposition to splitting of Ninth Circuit Court of Appeals in formal letter to Senators Chuck Grassley, Ben Sasse, Dianne Feinstein, and Chris Coons, members of the Judiciary Committee • Issued joint BASF/ JDC letter requesting that the federal government refrain from arresting undocumented citizens at California courthouses • Issued statement urging the executive branch to respect the judicial branch, following statements, both by President Trump and his advisors, which undermine the authority of the judicial branch

Access to Justice for Low-Income Communities • BASF/JDC joined twelve California bar associations urging the rejection of President Trump’s proposed cuts to Legal Services Corporation Funding • JDC joined the California Low-Income Consumer Coalition, to help bring voices of low-income consumers to the Capitol

Combining the two goals of protecting immigrants and reforming the criminal justice system, BASF also established a working group, made up of immigration lawyers, family lawyers, and law enforcement, to train family courts on U Visas. When undocumented immigrants are victims of crimes, they’re often too frightened to come forward because they fear they’ll be deported. But “day-to-day law enforcement needs immigrant victims to come forward to report crime,” Traun explains. “A U Visa buys you a couple of years.”

BASF’s trainings resulted in a whole new U Visa procedure in San Francisco, which is now being copied in other parts of California. “To be spearheading something important is great,” Traun says. “That it’s being replicated is even better.”

Also on the intersection of immigration and criminal justice, a joint letter from BASF and JDC supported the March 2017 letter by California Supreme Court Chief Justice Tani G. Cantil-Sakauye to US Attorney General Jeff Sessions and US Secretary of Homeland Security John Kelly [currently the White House chief of staff], asking them to cease using California courthouses as “bait” for arresting undocumented immigrants.

Another focus for BASF this year has been the judiciary— both judicial independence and access to justice. Following statements by President Trump and his advisors that undermined the authority of the judicial branch, BASF issued a statement urging the executive branch to respect the constitutional separation of powers. Similarly, in a letter to Senators Chuck Grassley, Ben Sasse, Dianne Feinstein, and Chris Coons and members of the Judiciary Committee, BASF expressed opposition to splitting the Ninth Circuit Court of Appeals.

“Our judicial system is in the crosshairs,” Conn explains.

“Lawyers have a heightened responsibility to protect this system; we have a heightened sensitivity to what’s at stake.”

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 21

“WE STAND AS A BEACON FOR DUE PROCESS, FAIRNESS, ACCESS TO COURTS, AND LAWYERS.” — Carole Conn, BASF/JDC

Similarly, BASF has continued working to close the justice gap, a gap that “has been amplified” this year, according to Chun. “Immigrants, women, and low-income individuals are not only targets of hateful rhetoric, but they also face diminished access to health care” and other threats to basic livability. These individuals are already tenuously housed and landlords are “capitalizing on the climate of fear and intimidation by threatening to call ICE” if they don’t move out, she adds. So closing that justice gap by providing counsel in these situations remains JDC’s critical mission.

To that end, BASF joined twelve other California bar associations urging the rejection of Trump’s proposed cuts to Legal Services Corporation funding.

“These cuts disproportionately affect lower-income communities of color,” Conn explains. “Yet these priorities are not held by the federal government.”

For example, cuts could affect critical proceedings such as judicial dependency hearings, which, according to Baldwin, involve vulnerable children and families, many of whom are living in poverty. “Legal representation for families and children in dependency hearings helps keep families together, 22 WINTER 2017

reduces unnecessary entry into the foster care system, and ensures quality care for children,” Baldwin explains. “We’re working closely with San Francisco Superior Court to try and leverage funding and will continue those efforts.”

All of BASF’s and JDC’s work this year fits with the organizations’ mission to render legal services to defenseless communities, Conn says. “We stand as a beacon for due process, fairness, access to courts, and lawyers.”

Although 2017 has been “a trying time” in the legal aid world, “it’s encouraging to see people who hadn’t been involved step up and want to help,” according to Chun.

The alarming policies coming out of Washington do have a “silver lining,” she adds. “We’re depressed every day but the mobilization of lawyers has also been inspiring. We’re now the frontline heroes. It’s a great movement to be a part of.”

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 on Amazon. She can be reached at ErinGordonSF@gmail.com.

Mobilizing for Justice in our Community

$20+

1,683

Value of legal services donated to the community

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

M I L L I O N

8,500

45,278

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

Volunteer hours donated in 2016

"We as lawyers understand the importance of equality and fairness, as well as the critical role lawyers play in helping ensure that all members of our community have access to justice." — Merri Baldwin, 2017 BASF/JDC President

Join us today!

TEXT GIVEJDC TO 71777 to get started, or visit jdc.sfbar.org

Add your support. Make a contribution at jdc.sfbar.org THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 23

MEET NEMO San Francisco Unified Family Court’s Facility Dog

photo by Mark Rogers

Kathleen Guthrie Woods

S

an Francisco’s Unified Family Court is a noisy, often extremely stressful environment for the people who work and appear there. But starting this past summer, tensions eased, thanks to the comforting presence of a new volunteer service provider named Nemo.

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Nemo with his cohandlers, from left, Shelley Gottlieb and Cynthia Dragon, and Judge Nancy Davis, at Nemo’s graduation in June in Santa Rosa

“I had a young man, twelve years old, who was really struggling,” says Jennifer Daly, a senior attorney at Legal Services for Children. Court dates were especially difficult for this young client, who expressed his anxiety by yelling and pacing in the hallway. That changed the day he met Nemo. “The whole thing shifted in four seconds,” says Daly. Nemo walked to court and stayed with the child through the hearing, which proceeded more smoothly than anyone could have anticipated. “He calmed down, was much more engaged, and was able to talk about difficult issues,” Daly says.

Meet Facility Dog Nemo IV, a black Labrador retriever who, according to his business card (yes, he has his own card) is “a courthouse dog who is available to bring comfort and support to foster children and their families in court.” Professionally trained by Canine Companions for Independence (CCI) in Santa Rosa, Nemo and his cohandlers, Court Appointed Special Advocates (CASAs) Shelley Gottlieb and Cynthia Dragon, are on call and on alert to assist where they’re needed.

On the Job “Hello!” Gottlieb says with her bright smile to a girl who looks to be about eight. “This is Nemo. His whole job is to be here for kids.”

Nemo, accompanied at all times by one of his cohandlers, appears at the courthouse dressed for success: his vest (once that’s on, he’s on duty), a collar decorated with characters from the Disney/Pixar movie Finding Nemo (a graduation gift from the inmates who helped train him), and his own court ID card.

Gottlieb hands one of Nemo’s cards to the girl and sits on the floor, talking with the child at her level and gently encouraging her to engage with him. “Nemo was raised in jail,” she says, referring to the highly successful puppyraising program at Crossroads Correctional Facility in Shelby, Montana, that partners with CCI. “He went to school for two years,” she says, to learn more than thirty THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 25

specialized commands. “Visit,” Gottlieb says, and he places his head in the girl’s lap. “Lap,” and his paws join his head.

The girl visibly relaxes as she scoots closer and begins to pet a very patient and compliant Nemo.

When the family’s case is called into Judge Nancy Davis’s courtroom in Dependency Court, Nemo and Gottlieb follow. Court can be scary for children, or just really boring, and Nemo doesn’t discriminate. Once the child is seated, Gottlieb brings Nemo alongside her. “Nemo, lap.” He puts his head and paws on top of the girl’s lap; she lays her head on top of him and stretches her arm across his back. This day she isn’t being called upon, and as the proceedings continue around her, she slips to the floor to sit with Nemo.

At the conclusion of the hearing, she thanks him with a hug around the neck and a kiss on his head.

Dogs like Nemo are bred and trained to be especially calm.

“They’re not just pets,” says Dr. Celeste Walsen, executive director of Courthouse Dogs Foundation. “The judges want decorum in the court, and there are safety issues.”

The handler always holds on to the leash. Where Nemo goes depends on the needs of each child. A handler might instruct Nemo to sit next to the child, commanding “Visit,” or walk him around so that he goes “Under” the table and lies at the child’s feet. In the hallway, Dragon occasionally engages people by having Nemo demonstrate some of his more complex commands, such as “Get and Give” to pick up a toy, pen, or even an iPhone. (“It gets a little wet,” Dragon cautions.) However, in court, Dragon says, “We make ourselves invisible.”

Beyond Dependency Court Invisibility is an important trait that will come more into play as Nemo’s role expands, possibly into other settings.

Annie Goodman of Law Office of Andrea Goodman serves on BASF’s Lawyer Referral and Information Service (LRIS) Dependency Court Panel and she first observed a dog used for reducing the stress of testifying several years ago at the National Association for Children Conference. “They talked primarily about animals in an interviewing context, on the 26 WINTER 2017

stand or in a taped forensic interview about physical or emotional abuse,” she says. It’s often easier for children to speak to the animal than to a room full of adults. “For kids who were neglected or abused, parents may have told them not to share,” says Gottlieb, “and a child will talk to a dog because he knows the dog won’t tell.”

Nemo’s presence can also have a huge, positive influence on parents who are appearing before the court. “They are nervous, they feel threatened, because the government is involved in their lives,” says Goodman. “You see people come in ready to fight,” she says, “then they see Nemo, smile, and relax just a little bit.” For example, the father of the boy at the opening of this story benefitted from Nemo’s influence. “It’s hard for him to do what he needs to do when his son is so anxious,” says Daly. So when Nemo calms the child, the father is calmer, and everyone can focus on what needs to be done.

A Worthy Investment

It took more than three years to “find” Nemo. “I found out about the program in 2014 when an invitation went out to judges to meet the facilities dog working with the District Attorney’s Victim Witness Program,” Davis says, “and I thought ‘Dependency was made for this!’”

The first hurdle was finding someone to be the dog’s handler.

“Who would care for the dog? How do we do this? Answer: CASA,” Davis says. CASA has been serving youth in foster care with one-on-one services for more than two decades, and Davis sensed this would be a good fit. She reached out to Renée Espinoza, executive director of San Francisco CASA, who immediately saw the potential.

With a team on board and cohandlers committed, Davis and CASA dove into a rigorous application process that can include six to seven months to complete multiple forms and interviews, plus one to two years on a waiting list.

“The timeline was anything but certain,” says Davis, but everyone was optimistically patient, and it paid off. News of a potential match came in October 2016.

he’d need on the job, and he was matched with his team.

His cohandlers then joined him at CCI for two weeks of intensive training.

“It costs $50,000 for CCI to breed, train, and raise a companion service dog,” says Espinoza, which makes it that much more impressive that Nemo and all service dogs are provided free of charge. Ongoing support services for the team are included. “We see them on a regular basis, we’re available via email and phone for training questions and advice,” says Michelle Williams, CCI’s public relations and marketing coordinator. “Teams are always welcome back, and if there are any problems, we’re here to help.”

While CCI remains the legal owner of its dogs until retirement (at which point they are offered for adoption), the CASA cohandlers provide everyday care, and it’s an investment they take seriously. “The cost is relatively low,” says Espinoza. “CASA established a $20,000/year budget for vet costs, food, vitamins, and parking and transportation.”

Nemo lives with his lead handler,

“I WOULD LIKE TO SEE A COURTHOUSE DOG IN ALL COURTHOUSES.” — Judge Nancy Davis

Meanwhile, Nemo was undergoing his own rigorous program. Bred onsite, he spent his first eight weeks at CCI’s National Headquarters and Northwest Region Training Center in Santa Rosa. (A nonprofit organization founded in 1975, CCI has additional training centers in Oceanside, California; Colorado Springs, Colorado; Orlando, Florida; Medford, New York; Delaware, Ohio; and Irving, Texas.) He then spent about a year and a half with inmates at Crossroads Correctional Facility who provided basic obedience training and socialization. Back at CCI, professional trainers made sure he mastered the advanced, specialized commands

Gottlieb, and each handler receives a small stipend. To ensure that he can work for a full ten years, extra care is taken to brush his teeth, trim his nails, and keep him in good health.

“We can’t give him treats,” explains Dragon, “for he must maintain sixty-four pounds consistently because he will live longer. Instead, praise (‘Good boy!’) is his reward.”

Inmates Benefit Too One of the interesting aspects of the program is the impact created and felt by CCI’s partnership with fourteen correctional facilities. “We’ve seen higher success rates in puppies raised in prisons because of the time that can be devoted to their training,” says Williams. “They are so good with their commands!” Puppies raised in these environments are more likely to become an assistance dog than those raised in homes. “I also am a puppy raiser,” Williams says, “but I work forty hours a week, and normal life stuff comes up.”

CCI has also heard of reduced recidivism rates for the inmates who participate in the puppy-raising program.

“Feedback from prisons is overwhelmingly positive, not only THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 27

for the inmates themselves, but also for the environment as a whole,” says Williams. She shares a letter from an inmate whose puppy successfully graduated and now serves a person with a disability: “My life was changed by the puppy I raised.

Something about her touched me so deeply that it changed my heart and the way I behave now,” he wrote. “She taught me how to love. I poured my heart and soul into raising her, and I loved her as if she was one of my children. I am very proud of her.”

Ongoing Impact

“My expectation was Nemo would have a positive effect, most especially on children and parents who were stressed and anxious,” says Davis, “and my hunch was that attorneys, courtroom staff, social workers, and myself would also benefit from his calming presence.” Walsen has seen this demonstrated in other courtrooms across the country. “It’s really easy to burn out, and (seeing a courthouse dog) makes it fun to go to work,” she says. Plus, “judges tell us attorneys behave better when a dog is in court. They don’t raise their voices as much, they are more respectful.”

Since its founding, CCI has graduated more than 5,000 teams, and more than 2,000 teams are active today. To learn more about While the focus now is learning how best to utilize CCI’s life-changing work, visit cci.org.

Nemo’s and his handlers’ time, brainstorming on how the program might expand is happening. “I would like to see a Kathleen Guthrie Woods is a dog-mama to Louie, a mischievous courthouse dog in all courthouses,” Davis says. “I’d love to (and totally lovable) cattle dog who wouldn’t last a day in Nemo’s see a dog working in juvenile delinquency.” (Walsen had a intensive training program. prosecutor tell her some teenagers come to court early … to see the dog.)

REACH OUT TO NEMO Per his business card, “Attorneys, social workers, families, and advocates can request Nemo’s presence during a variety of child welfare court proceedings when a little extra support would be helpful.” Email nemo@sfcasa. org for more information.

photo by Mark Rogers; courtesy of San Francisco CASA

28 WINTER 2017

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McGuireWoods Promotes

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 31

Justice & Diversity Center’s Annual Gala

Raises More Than $360,000

to Support Pro Bono and Diversity Programs in Bay Area Steve Love

O

ver 400 members of the legal community, representing more than ninety firms and legal departments, were in attendance to celebrate the work of the Justice & Diversity Center (JDC) of The Bar Association of San Francisco on September 28 at JDC’s Annual Gala. The Gala filled the Bently Reserve as guests celebrated the fortieth anniversary of JDC’s work in the community. The gala raised more than $360,000 to support the Pro Bono Legal Services Program, the Homeless Advocacy Project (HAP), and Diversity Educational Programs including School-To-College (STC), the Bay Area Minority Law Student Scholarship Program, and Law Academy.

This year’s Gala cochairs, David Kelly, JDC board member and general counsel and vice president for basketball legal affairs, Golden State Warriors, and Roxane Polidora, managing partner of Pillsbury Winthrop Shaw Pittman’s San Francisco office, set the tone for the evening by sharing their personal commitment to JDC’s work.

Taylor Cashwell photos by Jim Block

32 WINTER 2017

Gala Cochair David Kelly

BASF/JDC President Merri Baldwin

BASF/JDC Executive Director Yolanda Jackson

Highlights of the evening included a drawing for a signed and authenticated Golden State Warriors basketball and two guest speakers, both JDC clients, who inspired the crowd.

From left, Jessica Bogo, Colin Kemp, Stacie Kinser, Gala Cochair Roxane Polidora, and Joshua Ridless

The first speaker put a human face on San Francisco’s housing crisis. After thirty years as building maintenance manager, a position for which he received no pay beyond his rent-free apartment, the new owners told Mike he was “obsolete” and served him with an eviction notice. At risk of becoming homeless, he approached HAP for help. HAP was able to save his apartment at an affordable rent, secure a substantial settlement, and get Mike signed up for the social security benefits that were due to him.

The next speaker—a senior at Academy High School in San Francisco, showed incredible courage by addressing more than 400 adults. Originally from Brazil, Pedro is a competitive soccer player and active member of JDC’s School-To-College Program. Pedro came to this country as a freshman in high school. He had to adjust to a new culture, a new language, and a new school all in a very short period of time. With the help of STC Coordinator Alvaro Carvajal, he is now ready to apply to and attend a four-year university.

From left, Raul Gonzalez, Christine De Leo, Adriana Mendez, Gabriela Miranda, Jamal Jackson

Visit www.sfbar.org/gala to hear their stories firsthand.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 33

Amani Solange Floyd

From left, Gala speaker Mike Kilpatrick and JDC’s Anthony Prince

From left, Alicia Gámez and Steven Adair MacDonald

Charles and Melita Sun Jung

Mairi McKeever passes the gavel to her successor as JDC managing director, Gloria Chun

Marisa Chaves and Homaira Hosseini

Gala speaker Pedro Gomez-Mota

“I did not choose law, it chose me.”

—Adriana Mendez, Minority Law Student Scholarship Recipient

JDC board member Deborah Daniloff

34 WINTER 2017

Gordon Greenwood

From left, Kara Janssen, Devin Mauney, Brian Fraser, and Michael Nunez

Akasha Perez and Kayla Delgado

From left, Judge Braden Woods and Kathleen Guthrie Woods

Judge Charles Crompton

Jessica Bogo and Peter Catalanotti

Jaclyn Grant and Michael Thomas

“On JDC’s 40th anniversary, we take pride in being named this year’s Gala cochair – a true honor and a testament to our shared values and goals” —Pillsbury

From left, Eric Gelwicks, Megan Cesare-Eastman, Victoria Weatherford, and Gabriela Kipnis

Robert White

Petra DeJesus

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 35

From left, Jillian Green, Robert Romero, Radhika Thanedar, and Maria Quintero

Gala Cochair David Kelly

JDC Board Member Blair Walsh and Adrian Canzoneri

Carla Tucker, Paul Henderson, Cecilia Horton-Williams, and Carlos Clark

Sarah Banola

JDC’s Alvaro Carvajal, Gala speaker Pedro Gomez-Mota, and BASF/ JDC President Merri Baldwin

Lara Villareal Hutner and Lauren Cooper

Lucy Garcia, Adriana Mendez, David Casarrubias, Robert Hernandez, William Tran, and Ramon Becerra-Alcantar

“Lawyers know how to be watchful and vigilant. It's up to us to hold up the red flag when we see rights being encroached upon.”

—Janel Thamkul

Dorothy Lin, Abigail Lubow, David Tsai, Michael Angelo, and Aaron Tidman

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Warren Metlitzky, Mark Conrad, BASF President-Elect Malcolm Heinicke, and BASF Board Member Marvin Anderson

Rosailda Perez and Brenda Rosales

“As a sponsor of the JDC Gala, Dolby celebrates the success of JDC programs and looks forward to continuing to grow our partnership” —Dolby Laboratories Alexander Gershen and Franklin Kang

Teresa Renaker and Margo Hasselman Greenough

Jack Hannan and Frank Leidman

Barristers Club Board Members Ben Feuer, Jessica Ryland, and Anjali Kulkarni with JDC’s William Ryland

Cari Cohorn and Kevin Pacotti

Inspector Antonio Flores and Karina Velazquez

Demetrius Shelton, BASF Board Member Marvin Anderson, and Kayla Sosa

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 37

MORRISON & FOERSTER IS DELIGHTED TO CELEBRATE THE 40TH ANNIVERSARY OF THE

JUSTICE & DIVERSITY CENTER We are proud of the role that our Senior Counsel, Jim Brosnahan, played in founding JDC, and we applaud the remarkable accomplishments of JDC’s attorneys and staff.

©2017 Morrison & Foerster LLP

38 WINTER 2017

SAVE THE DATE

Second Annual

Solo/Small Firm Conference February 8

Loving Your Law Practice BASF’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 39

PRONOUN POWER

THE STANDARD FOR GENDER NEUTRALITY

Stan Sarkisov, Carleigh Kude

L

anguage and laws reflect the values of society—and we are a nation of equals.1 Unlike codified equality, human hearts and minds are not so orderly. As receivers of information, our myriad cognitive biases allow us to process the data we consume.2 Our biases have also been institutionalized, written into the language of our nation’s founding legal documents. The Founding Fathers (or men) made sure to accommodate a certain class of privilege: their own. Racial and gender bias are sewn into our star-spangled sense as a country. Luckily, our Constitution is a living body of laws, capable of evolution.3 Since the birth of our nation, less privileged Americans—specifically those who are excluded by the use of a default male singular third-person pronoun—have fought for their promised enfranchisement.

40 WINTER 2017

Our common history has reinforced racial and gender bias over time, instilling judgment into our collective perception.4 Using gender-neutral pronouns (and avoiding other unnecessary and discriminatory adjectives as “information”) is a step toward deconstructing these biases. This is crucial because the more we employ bias, the more bias is ingrained in our readers; this is a feedback loop. Without pausing to confront bias in our writing, there is ample opportunity for first impressions to double down on themselves: stereotyping gives way to confirmation biases; confirmation biases give way to subjective validation; subjective validation manifests as prejudice, discrimination, and so on.5 As critical thinkers, we know that these biases exist and so we ask ourselves whether they are disproportionately at play in our own messaging. Our communication must pass the test of scrutiny—is our writing conveying information, or is it conveying bias?

When we first interact with information, every word carries with it our cumulative understanding of that word.

For example: XX Defendant was thirty minutes late to their deposition.

XX Defendant was their minutes late to her deposition.

Both sentences provide relevant information: tardiness. One sentence provides irrelevant information and an opportunity for bias: the defendant is a her. The listener’s/reader’s understanding of gender norms provides opportunity to fill in the reason for the tardiness. Defendant’s gender bears no relevance to their tardiness (we would not identify defendant’s race, looks, age, or other characteristics, because they are irrelevant to defendant’s tardiness). Knowing that we carry the power of evoking inference with our words, we can wield this as power. We can either practice gender

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 41

neutrality in our communication to mitigate the chance of prejudice, or use subject gendering (he, she) to encourage the listeners’/readers’ comprehension of gender norms and accompanying biases to color their understanding.

A more loaded example: XX Plaintiff is suing for wrongful termination from her position at Kaiser.

XX Plaintiff is suing for wrongful termination from their position at Kaiser.

Subject gendering provides no relevance (is one gender more likely to warrant termination?) but does present room to corrupt an objective review of plaintiff’s case: is plaintiff a doctor or a nurse? Was plaintiff’s performance naturally likely to decline because of familial responsibilities? What does plaintiff earn?

Interpretation of the Constitution provides law-abiding citizens protocol on allowable discrimination. Gender discrimination has to pass an intermediate level of scrutiny so that the proponent of the discrimination has to establish an “exceedingly persuasive justification” for sex-based classification to be valid.6 Allowing gender bias requires an “important objective” and the discriminatory means must be substantially employed to achieve the important objective.7 In California, gender discrimination is scrutinized at a heightened standard. To pass, the discrimination must advance an important interest, the discriminatory intrusion must significantly further that interest, and the intrusion must be necessary to further that interest.8 Our daily use of gender pronouns fails this test because we continue to impart bias when no purpose (important or not) exists.

This can change. For centuries, the English language included a “pretty modern system of natural-gender pronouns and no more grammatical gender (or case) on the nouns.”9 He referred to male subjects, she to female subjects, and they was a perfectly acceptable gender-neutral singular pronoun for unknown or generalized single subjects. In the

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eighteenth century, grammarians began recommending he as a gender-nonspecific pronoun, and style books began adopting this as the rule.

Gender neutrality became a forefront issue in the feminist movement in the 1970s.10 Prominent writers called for the use of gender neutrality in writing, suggested new, nongendered singular third party pronouns, and a modern language movement was born.11 The evolution of language, however, does not ease all social ills: an ongoing national debate about gender identity persists (to such a degree that bathrooms are now an issue). Gender neutrality is even dictionary sanctioned. The American Dialect Society selected they as a singular pronoun as its 2015 Word of the Year. Modern writing now embraces they as a nonbinary pronoun—not only in situations where the person’s gender is unknown. In October 2017 Governor Jerry Brown signed SB 179 into law, offering a gender–neutral option on state documents for those who do not identify as male/ female. Gender nonbinary ID cards will be available for Californians in 2019.

People use language, and language is a reflection of the people who use it. Change is easier for some than others.

It is reasonable to acknowledge that modern legal writers might experience discomfort, or uncertainty, in practicing gender-neutral writing. They as third person singular might seem too informal or initially awkward. However, hesitation

OUR COMMON HISTORY HAS REINFORCED RACIAL AND GENDER BIAS OVER TIME, INSTILLING JUDGMENT INTO OUR COLLECTIVE PERCEPTION.

OUR COMMUNICATION MUST PASS THE TEST OF SCRUTINY—IS OUR WRITING CONVEYING INFORMATION, OR IS IT CONVEYING BIAS? will inevitably ease with continued usage and increasing exposure to others’ usage.

In the meantime, you can employ the nine techniques for achieving gender neutrality where appropriate: (1) omitting the pronoun; (2) repeating the pronoun; (3) using a plural antecedent; (4) using an article instead of a pronoun; (5) using the neutral singular pronoun one; (6) using the relative pronoun who; (7) using the imperative mood; (8) using he or she (sparingly); (9) or revising the clause.12 Or—a tenth option—because language is living and changing, and the choices we make to be unbiased in our words diminish the biases passed onto future generations reading those words— beginning to use they. It is through writing that change is effected, and effective change is reflected through writing.

At the least, legal writing should be more progressive than the DMV. Stan Sarkisov has practiced family law since graduating from the University of San Francisco School of Law. Stan 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.

Carleigh A. Kude, M.P.A., is an access and inclusion specialist in higher education with 12 years of experience in policy, advocacy, and program planning. She is currently the Disability Advisor in the Office of Accessible Education, Stanford University.

Notes 1. “All men are created equal” is written in the US Declaration of Independence. In 1776 some men were actually more equal than others.

Our society has progressed to understand men to mean not just landholding men, and not just slave-holding men, but actually all men. But our society is gendered (meaning we classify things—even rights—by gender). It was not until 1920 that women became equal in their right to vote—some women. Native Americans only became equals in 1924, when the Snyder Act bestowed upon them their unalienable and full rights of citizenship. African Americans, and especially women, were still fighting for the right to vote in the 1960s.

2. “A Memory Processes Model for Judgment of Likelihood” (1999) by Michael R. P. Doughery, Charles F. Gettys, and Eve E. Ogden: http://www. damlab.umd.edu/PDF%20articles/Dougherty,Gettys&Ogden,1999.pdf 3. Thomas Jefferson wrote in 1816: “But I know also, that laws and institutions must go hand in hand with the progress of the human mind.

As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.”

4. For racial examples: The Homestead Act of 1862, sundown towns, the Home Owners’ Loan Corporation’s redline maps. For gender examples: the glass ceiling, the election of Donald Trump.

5. “Cognitive Bias Cheat Sheet. Because Thinking Is Hard” (09/01/2016)

by Buster Benson: https://betterhumans.coach.me/cognitive-bias-cheatsheet-55a472476b18 6. Mississippi University for Women v. Hogan (1982) 458 U.S. 718.

7. Wengler v. Druggists Mut. Insc. Co. (1980) 446 U.S. 142.

8. Witt v. Department of the Air Force (2008) 527 F.3d 806.

9. “A Linguist on the Story of Gendered Pronouns” (07/2014) by Gretchen McCulloch:http://the-toast.net/2014/06/02/a-linguist-genderedpronouns/ 10. Gloria Steinem, feminist, journalist, and founder of Ms. Magazine, earned national attention when in 1969 she published her article, “After Black Power, Women’s Liberation.” See also “Gender Became Very Limiting” (01/2017) in National Geographic Magazine: http://www. nationalgeographic.com/magazine/2017/01/3-questions-gloria-steinem/ 11. In their book Words and Women, writers Casey Miller and Kate Swift brought to light the harm of using male pronouns as the default epicene.

They noticed, and could not ignore, “the way English is used to make the simplest points can either acknowledge women’s full humanity or relegate the female half of the species to secondary status.” http://scholar.lib.vt.edu/ ejournals/old-WILLA/fall94/h2-isele.html 12. The Chicago Manual of Style Online, Sixteenth Edition’s nine techniques for writing with gender neutrality: http://www.chicagomanualofstyle. org/16/ch05/ch05_sec225.html?sessionId=a9361ddd-ba3c-4c78-9896a875bdfb3aaf

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COMMUNITY ORGANIZATION REPRESENTATION PROJECT (CORP) A Justice & Diversity Center project

HELPING THOSE WHO HELP OTHERS

TRANSACTIONAL ATTORNEYS STRENGTHEN NONPROFITS THAT PROVIDE DIRECT SERVICES TO LOW-INCOME COMMUNITIES GLORIA CHUN

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 45

COMMUNITY ORGANIZATION REPRESENTATION PROJECT (CORP)

2015 - 2017: 139 organizations worked with CORP

A Justice & Diversity Center project

Community Organization Representation Project • a Justice & Diversity Center project

139 organizations worked with corp in 2015–2017 80 of these organizations serve people in San Francisco.

Organizations serving other counties: 1−5 organizations

45 of them serve people throughout the city.

Others serve specific neighborhoods:

5−10 organizations 10+ organizations

financial chinatown district western japantown addition tenderloin/ soma

richmond/ sunset

castro Mission

potrero hill

bernal heights

bayview/ hunters point

excelsior/ visitation valley

Types of Services provided

(number of organizations providing services)

Health services (51) Youth services (47) Child care/ family support (36) After school/ enrichment (35) Community economic development (33)

Housing (32) Homelessness (32) Employment (32) Disability (17) Elder services (15)

Domestic violence (15) Immigration (10) HIV/AIDS (7)

Client profile of the nearly 600,000 people served by nonprofits partnering with CORP Yearly income under 10k

under 20k

under 30k

52%

20%

18%

Substance abuse

0 to 17

18 to 54

55+

31%

48%

21%

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35%

Exposed to domestic violence Immigrant

Age

51%

Unemployed

Homeless Person with HIV/AIDS 10%

31% 29% 27%

COMMUNITY ORGANIZATION REPRESENTATION PROJECT (CORP) A Justice & Diversity Center project

W

hen people hear “pro bono lawyer,” they might picture a tireless public defender representing the indigent, or perhaps an idealist taking a David v.

Goliath civil matter. How many people would think of an attorney registering a trademark, drafting employment policies, or reviewing corporate bylaws?

While John Grisham hasn’t written a bestseller about a transactional attorney fighting the good fight (yet), they’re out there.

The nonprofits CORP assists all provide direct services to low-income communities, and have limited finances that make even basic legal services cost-prohibitive. The vast majority have annual budgets under $2 million, with 38 percent coming in under $500,000. Yet, with tight resources, the 139 nonprofits CORP helped in a twoyear period (June 2015 to June 2017) form an impressive network of services, resources, and opportunities for more than 600,000 people. Eighty percent of the people these nonprofits serve are people of color. More than 50 percent have annual incomes under $10,000.

In fact, nonprofits that are combating the cyclical ills of discrimination and inequality face similar obstacles as the people they serve. Causes Count,1 a California nonprofit survey, shows that California zip codes where more than 80 percent of residents are nonwhite have one nonprofit organization for every 2,000 people, compared to one nonprofit for every 877 people in other zip codes. Nonprofit revenue is 62 percent lower in predominantly nonwhite communities, and assets are 57 percent lower.

Just as low-income individuals are forced to make difficult prioritizations when confronted with a civil legal problem, nonprofits must also decide how to best allocate their limited funds when potential legal issues arise. CORP eases this burden, thanks to the transactional/business attorneys who volunteer their expertise. For example, since 2015, volunteer attorneys have taken on more than sixty employment matters.

This makes volunteers’ “behind the scenes” work impactful not only for those who receive nonprofits’ services, but also for the employees who work there.

CORP AND ITS VOLUNTEER ATTORNEYS SUPPORT, AND EVEN ENABLE, MANY NONPROFITS’ MISSIONS Transactional legal work is a different act of service from feeding a hungry family, but a community food bank might not be able to help anyone if it signs a lease without reading the fine print. CORP and its volunteer attorneys support, and even enable, many nonprofits’ missions.

If you’re a transactional attorney who’d like to volunteer with CORP, please contact me at gchun@sfbar.org or 415782-8980. You can also find more information about us at www.sfbar.org/corp.

Gloria Chun is the managing director and managing attorney of the Pro Bono Legal Services Program of the Justice & Diversity Center.

Note 1. Causes Count: The Economic Power of California’s Nonprofit Sector; published 2014 by the California Association of Nonprofits; http://www. calnonprofits.org/images/downloads/causes-count-808.pdf.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 47

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The most important and challenging questions you face require more than just legal answers.

Our integrated legal, business consulting, policy and economic perspectives open doors to new possibilities and far-reaching solutions. Learn more about how we can work together at manatt.com.

Manatt, Phelps & Phillips, llp

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Recognized as one of the Best Places to Work by Silicon Valley Business Journal and San Francisco Business Times for eleven years; Fenwick is the highest ranked law firm on the list (2017)

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Ranked the fifth best law firm in the U.S. for diversity by The American Lawyer and seventh by Law360 (2016)

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Recognized as having both the best mentoring and the best pro bono program in North America by Euromoney at its Americas Women in Business Law Awards for three straight years. Also recognized as the best North American firm for women in business law (2017)

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Annually receive 100% score (A+ rating) on The Human Rights Campaign Foundation’s Corporate Equality Index for Fenwick’s pro-LGBT policies and working environment (2016)

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SILICON VALLEY SAN FRANCISCO SEATTLE NEW YORK SHANGHAI FENWICK.COM

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 49

WHO KNEW THE COURTS ADOPTED COMMONSENSE PROFESSIONAL GUIDELINES? Joanna L. Storey

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s there deposition priority in California? Many attorneys say no, but the Attorney Guidelines of Civility and Professionalism suggest yes. For those attorneys thinking, “what guidelines of civility and professionalism?”— you are not alone.

Top Ten Ethics Tips That May Help Your Case

On July 20, 2007, the Board of Governors of The State Bar of California adopted the California Attorney Guidelines of Civility and Professionalism (the guidelines), which currently are found at www.calbar.ca.gov/Attorneys/Conduct-Discipline/ Ethics/Attorney-Civility-and-Professionalism. A decade later, many attorneys have never heard of these guidelines, let alone the abbreviated versions that have been adopted by most California courts. The guidelines memorialize what most ethics attorneys consider to be commonsense rules of practice. For those attorneys who nod off while attending ethics seminars, it’s time to pay attention because the guidelines offer both swords and shields for positions attorneys take in litigation.

Here are the top ten ethics tips that may help your case.

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photo credit: saeed mhmdi

TIP 1: Don’t be tempted to read that clearly privileged document you mistakenly received. Section 9—Discovery states: “If an attorney inadvertently receives a privileged document, the attorney should promptly notify the producing party that the document has been received.” In McDermott Will & Emery LLP v. Superior Court (2017) 10 Cal.App.5th 1083, Gibson Dunn attorneys were disqualified from representing their client because they refused to return a privileged email they had received indirectly after the opposing party had inadvertently forwarded it to a family member. The court of appeal cautioned: In that situation, the attorney receiving the materials must refrain from examining them any more than is necessary to determine their privileged nature, immediately notify the privilege holder the attorney has received materials that appear to be privileged, attempt to reach an agreement with the privilege holder about the materials’ privileged

nature and their appropriate use, and resort to the court for guidance if an agreement cannot be reached. The attorney must not further review or use the materials for any purpose while the issue remains in dispute.

McDermott, supra, (2017) 10 Cal.App.5th at 1108. If you have not read this case yet, add it to your to do list pronto.

The moral of the story—if it walks like a duck and talks like a duck, it is probably a duck. If you have any doubt whether that memo you received in opposing counsel’s document production may be privileged, stop reading the memo and call the opposing counsel to discuss.

TIP 2: Don’t hide the devil in the details. When exchanging drafts of written agreements, make use of your word processor’s “redline” feature to ensure everyone knows what changes have been made. Section 8—Writings Submitted to the Court, Counsel or Other Parties states: “An

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 51

attorney should clearly identify all revisions in a document previously submitted to the court or other counsel.” Some federal district courts require parties to indicate whether they based their proposed protective order on the court's model protective order and, if so, to identify any deviations from the model order by specifically using a redline comparison.

and fortify conflicting positions. There is a time and place for monetary sanctions, but not with every motion.

Thoughtfully consider whether seeking sanctions will help you reach your goal of obtaining the necessary discovery, or just escalate the current dispute and potentially create future conflicts with opposing counsel.

TIP 3: Pick up the phone and call opposing counsel before you file a discovery motion. Section 10—Motion Practice states: “In complying with any meet and confer requirement in the California Code of Civil Procedure, an attorney should speak personally with opposing counsel and engage in a good faith effort to resolve or informally limit an issue.” Streamline your meet and confer by first sending opposing counsel a letter outlining the facts and legal basis for demanding further discovery responses, and then follow up with a scheduled phone call to work toward a compromise. You will be surprised at what you may accomplish through conversation.

TIP 5: Remind opposing counsel that the judge may not appreciate his refusal to grant your client an extension of time to respond to discovery. Section 6—Scheduling, Continuance and Extensions of Time states: “Unless time is of the essence, an attorney should agree to an extension without requiring motions or other formalities, regardless of whether the requesting counsel previously refused to grant an extension.” Attorneys should also refer to this section if their client demands that an extension not be granted.

TIP 4: Think twice before seeking monetary sanctions.

Section 10—Motion Practice states: “Because requests for

Listen, then flip the dispute and observe the case from your opponent’s perspective. You may just fashion a solution that satisfies everyone.

monetary sanctions, even if statutorily authorized, can lead to the destruction of a productive relationship between counsel or parties, monetary sanctions should not be sought unless fully justified by the circumstances and necessary to protect a client’s legitimate interests and then only after a good faith effort to resolve the issue informally among counsel.” Asking for monetary sanctions, especially against the opposing attorney, will serve only to raise blood pressures

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TIP 6: Use opposing counsel’s failure to precisely articulate a discovery request to craft an appropriate response that also reinforces your position. Section 9— Discovery states: “An attorney should not intentionally misconstrue or respond to interrogatories in a manner that is not truly responsive.” Judges may issue sanctions for refusing to answer an interrogatory solely because it is vague and ambiguous as phrased. If the propounding party failed to define a term subject to more than one meaning, instead of providing no response, define the term in a way that suits your needs, as long as doing so is consistent with the issues presented in the case.

TIP 7: Consider alternate ways to resolve conflict. Section 13—Settlement and Alternative Dispute Resolution states: “An attorney should attempt to evaluate a matter objectively and to de-escalate any controversy or dispute in an effort to resolve or limit the controversy or dispute.” Before you jump head first into discovery and motion practice, pause and explore with your client the client’s goals for conflict resolution. Listen, then flip the dispute and observe the case from your opponent’s perspective. You may just fashion a solution that satisfies everyone. For example, does the plaintiff really want a large monetary settlement, or would she prefer that the defendant modify policies and procedures

The guidelines offer both swords and shields for positions attorneys take in litigation.

to avoid future occurrences of whatever event harmed her?

Just think about the business promotion possibilities when your client boasts about your mindful resolution of the dispute with friends and colleagues.

TIP 8: Propose a first-look agreement to avoid unnecessary discovery battles. Section 17—Privacy states: “If an attorney must inquire into an individual’s private affairs, the attorney should cooperate in arranging for protective measures, including stipulating to an appropriate protective order, designed to assure that the information revealed is disclosed only for purposes relevant to the pending litigation.” When counsel objects to defendant’s subpoena to plaintiff’s gynecologist, propose a first-look agreement with an attorney’s-eyes-only option to view what plaintiff proposes to be redacted. You may find the portions of the records the opposing party seeks to redact are irrelevant for your purposes, so why waste time and resources arguing over record entries that are of no value to your case?

TIP 10: Circling back to the question of whether there is deposition priority in California, Section 9—Discovery states: “When another party notices a deposition for the near future, absent unusual circumstances, an attorney should not schedule another deposition in the same case for an earlier date without opposing counsel’s agreement.”

This guideline suggests that deposition priority does exist in California, especially in the eyes of the court, which will ultimately be deciding your discovery dispute(s).

Attorneys should thoughtfully consider their ethical duties during all aspects of litigation, not only because being ethical is the right thing to do, but also because following these commonsense guidelines may help your case. Moreover, judges have been known to cite to the guidelines. The court of appeal did so in In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, eloquently stating: “Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.”

Joanna Storey is senior counsel at Hassard Bonnington where her litigation practice includes professional liability, catastrophic personal injury and complex commercial matters.

She actively follows privacy, security and ethics developments and is a member of BASF’s Legal Ethics Committee.

TIP 9: Don’t “race opposing counsel to the courthouse to knowingly enter a default before a responsive pleading can be filed.” Section 15—Default states: “An attorney should not take the default of an opposing party known to be represented by counsel without giving the party advance warning.” This guideline was cited in footnote 10 in Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681. The court of appeal did not hold that a plaintiff’s attorney must always warn a defense attorney before taking a default; rather, because the defendant’s legal department had assisted plaintiff’s counsel to effect service in that case, the court of appeal cautioned an advance warning was an “ethical obligation” of counsel.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 53

UNDERSTANDING LEAVES Sonya Smallets

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The Interaction between Medical Leave under FMLA/CFRA and Leaves of Absence as Reasonable Accommodation for a Disability under FEHA

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s a plaintiff’s employment lawyer, I often represent employees who have been terminated because of their need to take time off work for medical reasons.

In these cases, sometimes the evidence indicates that the employer’s termination decision was motivated by a desire to rid the workplace of a disabled employee, and sometimes the evidence indicates that the termination decision was the result of a legitimate dispute as to the employer’s legal obligations.

But surprisingly often, the evidence shows that the termination decision was the result of the employer’s failure to understand its legal obligations, particularly with respect to the relationship between an employee’s right to medical leave under the federal Family Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) on one hand, and the employee’s right to reasonable accommodations under the California Fair Employment and Housing Act (FEHA) on the other. This lack of understanding can lead to problems for employers, particularly those who are faced with meritorious employment discrimination claims because of their failure to understand their legal obligations. And it can lead to very difficult, sometimes tragic, consequences for employees, who are faced with losing their jobs at a time when they are particularly vulnerable, economically and emotionally, as a result of being ill. With this in mind, this article aims to shed some light on the interaction between these two areas of law, with the hope of preventing such problems.1 FMLA and CFRA contain detailed and specific rules with respect to an employer’s obligation to provide medical leave to its employees. Under these statutes, an employer with more than fifty employees located within seventy-five miles of a given job site must provide up to twelve weeks of medical leave to an employee who has worked for the employer for a year or more, has worked more than 1,250 hours in the preceding year, and has a serious health condition that

requires the employee to take medical leave. With limited exceptions, if an employee qualifies for FMLA/CFRA leave, the employer must provide the leave and reinstate the employee to his or her position at the end of the leave.

An employer cannot refuse to allow an employee to take FMLA/CFRA leave because the employer believes that it would be burdensome for the employee to miss work; if the employee qualifies for and needs FMLA/CFRA leave, he or she is entitled to take it.

Because of FEHA’s reasonable accommodation obligations, an employer cannot conclude that it has satisfied its obligations to an employee in need of time off work for health-related reasons simply because it has provided the employee with twelve weeks of FMLA/CFRA leave.

The right to leave as a reasonable accommodation for a disability under FEHA is different. Disability leave as a reasonable accommodation is not governed by the same kind of bright-line rules. Instead, FEHA provides that an employer with five or more employees must provide an employee with a physical or mental disability medical leave as a reasonable accommodation for the disability. 2 Cal. Code Regs. §11065(p)(2)(M). The length of leave that the employer must provide is not set by statute. An employer must provide disability leave of the length of time that is necessary to allow the employee to be able to return to work, provided that doing so would not constitute an undue hardship for the employer. 2 Cal. Code

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 55

The employer must engage in a good faith interactive process with the employee to determine whether the employer can provide other reasonable accommodations that will enable the employee to remain employed.

Regs. §11068(c) (“When the employee cannot presently perform the essential functions of the job, or otherwise needs time away from the job for treatment and recovery, holding a job open for an employee on a leave of absence or extending a leave provided by the CFRA, the FMLA, other leave laws, or an employer's leave plan may be a reasonable accommodation provided that the leave is likely to be effective in allowing the employee to return to work at the end of the leave, with or without further reasonable accommodation, and does not create an undue hardship for the employer.”); see also Sanchez v. Swissport, Inc. (2013) 213 Cal. App. 4th 1331, 1338 (“[A] disabled employee is entitled to a reasonable accommodation—which may include leave of no statutorily fixed duration—provided that such accommodation does not impose an undue hardship on the employer.”). The length of disability leave that an employer must provide as a reasonable accommodation thus varies with the circumstances. For example, while it may be reasonable for a large company to provide a yearlong leave of absence to one of several hundred customer service employees working in a call center, it may not be reasonable for a small company to provide a leave of a similar length to its vice president of finance.

Because of FEHA’s reasonable accommodation obligations, an employer cannot conclude that it has satisfied its obligations to an employee in need of time off work for health-related reasons simply because it has provided the employee with twelve weeks of FMLA/CFRA leave. Instead, the employer must consider whether it has an obligation also to provide a reasonable accommodation to the employee in the form of 56 WINTER 2017

a disability leave. Moreover, in making that determination, an employer cannot rely upon a company policy limiting leave to a fixed duration. Equal Employment Opportunity Commission Publication, “Employer-Provided Leave and the Americans with Disabilities Act,” www.eeoc.gov/eeoc/ publications/ada-leave.cfm#_edn1; Garcia-Ayala v. Lederle Parenterals, Inc. (1st Cir. 2000) 212 F.3d 638, 648 (requiring an employer to provide a reasonable accommodation of a leave of absence beyond that allowed by the employer’s leave policy). Instead, the employer must engage in a fact-based assessment as to whether it can provide the leave being requested without undue hardship.

Moreover, even if an employer believes that providing additional leave to an employee would impose undue hardship, the employer cannot simply terminate the employee

when the employee’s FMLA/CFRA leave ends. Instead, the employer must engage in a good faith interactive process with the employee to determine whether the employer can provide other reasonable accommodations that will enable the employee to remain employed. 2 Cal. Code Regs. §11069(b) (3). For example, the employer must consider whether the employee could return to work if the employee was allowed to work from home or if the employee was allowed to work part time. The employer must also consider if there is an open position at the company that the employee is qualified for and able to perform. All of these are potential reasonable accommodations that an employer must consider providing before terminating an employee who has exhausted his or her entitlement to FMLA/CFRA leave.

to FMLA/CFRA leave. California’s protections for disabled workers require the employer to do more.

Sonya Smallets is a partner at Minnis & Smallets in San Francisco. Her practice focuses on representing employees who have been discriminated against, harassed, or wrongfully terminated by their employers.

Note 1. There are a number of other laws under which an employee may be entitled to take time off of work, and there are several other reasons for which an employee may be entitled to take FMLA/CFRA leave. However, this article focuses on the employer’s obligation to provide FMLA/CFRA leave because of an employee’s own serious health condition and to provide a leave of absence as a reasonable accommodation for an employee’s disability under FEHA.

As this article has tried to make clear, what an employer generally should not do is terminate an employee through a letter on the last day of the employee’s FMLA/CFRA leave because the employee has exhausted his or her right

ONE TEAM. INNOVATIVE LEGAL SOLUTIONS. WORLDWIDE. THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 57

EFFECTIVE MEDIATION Stating the Obvious Because the Obvious Needs Restating Guy O. Kornblum

It takes considerable effort and preparation to make the mediation process work.

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Successful mediation takes: 1. A common and good-faith interest in mediation 2. An exchange of complete and thoughtfully prepared mediation statements and exhibits well in advance of the mediation date 3. The presence of those with authority to settle 4. A level of candor and disclosure that allows the parties to assess realistically the other side’s position 5. And perhaps, more than anything, a willingness to listen to what the other side has to say and carefully assess the position counter to the client’s

photo credit: Mike Ngo, #WOCinTech Chat

If this is done—and it should be, if counsel’s representation in mediation meets professional standards—then the full discussion and exchange of information before and during mediation increases the chances of settlement.

Mediation has a distinct advantage over direct negotiation because it (a) brings all parties together face to face, (b) involves a neutral who can be a facilitator and an evaluator, if needed, (c) offers a process for negotiations rather than a haphazard effort to try to settle a case directly, and (d) involves principals or persons who are present who have a direct interest in resolution (for example, the parties, their appointed representatives, or their insurers).

Mediation is not always preferred, sometimes because of the cost or, in some cases, because one side or the other does not take the process seriously and is not prepared. Except with

court-sponsored ADR programs, which are at no cost to the parties, mediations are pricey in many cases.

So, how do we ensure that the mediation process will work in the average midlevel lawsuit?

1. There has to be a good-faith interest in resolution. If there is not, politely decline. If the court directs the parties to mediate, be honest if a party just wants a trial. But if you attend a mediation, you and your client must have a real interest in settlement.

To ensure a meaningful dialogue, one of the important items on my agenda as a plaintiff’s lawyer is to assess how serious the other side is about going through the mediation process. I often have a heart-to-heart talk with defense counsel to make sure the timing is right, the proper people

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 59

are involved, and the commitment is there. Or I may ask the mediator to make sure this is the case. In most cases I do this myself, but I inform the mediator of my intentions beforehand to make sure it is okay to proceed. Sometimes the mediator will offer to do this, which I welcome, if I think the mediator can do this effectively. I have on occasion asked permission to make this call when I feel strongly that I will be more effective because of a prior relationship with opposing counsel.

THERE HAS TO BE A GOOD-FAITH INTEREST IN RESOLUTION. IF THERE IS NOT, POLITELY DECLINE.

2. The parties need to lay out their case in full in a statement that is exchanged with the other side. How can a mediation be effective if one side conceals its position from the other?

There can be no dialogue if the exchange is not open. Twopage briefs from a party, or mediation statements I never see, do not allow the negotiations and exchange that are essential to the process. In such a situation, I decline the opportunity as proceeding will be a waste of time for all concerned.

3. The “check writer” and decision maker must be present.

I ask the mediator to confirm that this be the case or I will not attend. How can a mediation be effective and there be good communication if this is not the case? And, the last thing I want to hear is that the key person, who was standing by on the phone left work at 5 p.m. eastern time when I am in a mediation on the West Coast where it is only 2 p.m.

4. The mediation statements must be submitted well in advance of the mediation. My rule is that I send the

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mediation briefs out to counsel and the mediator (email and/or hard copies) two weeks beforehand. Because I am usually representing a plaintiff, I need to be sure to get the mediation statement with my demand to the defendant(s) in time for them to evaluate my client’s position. And the statement needs to be complete, a “mini” claims file with all supporting documentation. A defendant cannot review all the relevant information and seek authority so that settlement can be fully explored at the mediation when there are last-minute submissions of additional specials or thousands of dollars of additional medical bills. A full review cannot happen if the statement is submitted only five days before the mediation is to take place. Late and incomplete submissions understandably put a defendant in a bind in the effort to settle and delay the process. If you email the mediation statement to opposing counsel, then it is easy to forward it to a client or insurance carrier.

From the defense perspective, counsel needs to prepare the client representative well in advance of the mediation so any internal caucus can be conducted and appropriate authority obtained.

Well in advance of the mediation date, the defense also needs time to evaluate what experts might be involved and to obtain reports. This is often a difficult task because the client representative or the insurance company claims handler is not local or is just too busy to devote the time necessary to participate in the preparation process. Plaintiff should serve a mediation statement at least two weeks ahead of the mediation date. More time is even better. Anything less than this is likely to result in a wasted day.

5. The client needs to be prepared to make decisions before the mediation day. On the plaintiff’s side, spend a few hours going over the details of the case, the cost of going forward, and the dollars and cents involved if the case progresses further or is tried. What is the likely outcome and how much will it cost? What happens if the parties walk away? What

THERE CAN BE NO DIALOGUE IF THE EXCHANGE IS NOT OPEN.

For over 25 years, advancing the rights of our clients in class actions and complex civil

are the chances of a better result?1 Look at the economics of going forward and consider the present or time value of money from the plaintiff’s side. What is the value of having cash now versus the “hope” of more cash later?

6. Be prepared to be an active participant in the process. Be professional, meet and greet the other side, and make sure all attending have met you and your client and exchanged greetings. There is no reason to be angry, hostile, or defensive.

Just be a good participant in the negotiation process and see if you can get the job done—closure for you and your client.

Guy O. Kornblum has been a specialist in civil trials, arbitrations, and appeals for more than four decades since graduating from UC Hastings College of the Law. He is a partner in the civil litigation firm of Kornblum, Cochran, Erickson & Harbison, with offices in San Francisco and Santa Rosa, California. He is certified in civil trial law and civil pretrial practice advocacy by the National Board of Trial Advocacy and is a charter fellow of the American College of Board Certified Attorneys.

Note 1. See G. Kornblum, “Research Confirms Negotiated Results Superior to Going to Trial,” San Francisco Attorney (San Francisco Bar Association, Spring 2009), which discusses the study by Dr. Randal Kaiser of Decision Set in Palo Alto, California, and which compares from both the plaintiff and defense side the statistical chances of doing better that what a settlement presents.

and criminal litigation.

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 61

PROTECTING THE MALPRACTICE STATUTE OF LIMITATIONS DEFENSE Daniel W. Hager

P

roperly understanding the legal malpractice statute of limitations is critical both to preserving the defense should a claim ever arise and to the timing of filing any suit for fees against a client (a last resort with a high risk of drawing a responsive malpractice claim).

Code of Civil Procedure section 340.6 provides in relevant part that: (a) An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever

62 WINTER 2017

occurs first. . . . Except for a claim for which the plaintiff is required to establish his or her factual innocence, in no event shall the time for commencement of legal action exceed four years except that the period shall be tolled during the time that any of the following exist: (1) The plaintiff has not sustained actual injury.

(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred. . . .

Thus, except in relatively rare situations—for example where a claim arises from representation in a criminal case (which carries an additional requirement that the client obtain postconviction exoneration establishing actual innocence)—a client generally has one year from the date he or she discovers, or reasonably should have discovered, the purported acts of malpractice in which to bring a claim. The client does not have to know what legal theories might apply, just that some acts or omission of the lawyer injured the client. To help establish the discovery date, client complaints should be confirmed in writing, at least in a memo to the file.

The statute is then tolled until the client suffers actual injury. However, the full extent of the injury need not be known. Once any damage has been suffered, the one-year period starts running. A client incurring fees to hire a second lawyer to undo harm caused by a previous lawyer constitutes actual injury that starts the clock.

The other common tolling period is while the attorney continues to represent the client regarding the specific matter in which the alleged malpractice occurred.

Clients should therefore be sent “end of engagement” letters when matters conclude. By documenting the end of the representation, such a letter can defeat an untimely malpractice claim. However, providing any related services after a representation has ended can establish continuous representation tolling that can defeat an otherwise valid statute of limitations defense.

The statute is also tolled while the client is under a disability restricting the ability to commence legal action.

The referenced four-year statutory period provides an outside limit. It runs from the date of the wrongful act or omission itself, regardless of whether the client discovers the facts constituting the wrongful act or omission. However, the four-year period is subject to “actual injury” and “continuous representation” tolling. It is also tolled if the attorney willfully conceals the facts constituting the wrongful act or omission when such facts are known to the attorney.

Proper analysis of the statute of limitations is particularly important if a firm is considering suing a client for fees. Firms should always be cautious about suing a client, since doing so will typically generate a responsive malpractice claim. Thus, matters should always be carefully evaluated for malpractice exposure before deciding whether to sue for fees.

Also, since the breach of contract statute of limitations is generally longer than the legal malpractice statute, firms that decide to sue for fees should only file suit after the malpractice statute has already run. If the statute has run, the client can still assert malpractice as a defense seeking a setoff against the fee claim; but the client is barred from asserting an affirmative malpractice claim seeking damages.

Understanding and taking actions that protect the statute of limitations defense is crucial for reducing the risk and expense of malpractice claims.

Daniel W. Hager is a San Francisco attorney practicing in lawyers’ professional liability, risk management, and legal ethics. He is corporate counsel for Ahern Insurance Brokerage.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 63

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64 WINTER 2017

USF SCHOOL OF LAW

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1. Publication Title: San Francisco Attorney Magazine. 2. Publication Number: 07449348. 3. Filing Date: 09/14/2017. 4 Issue Frequency: Quarterly. 5. Number of Issues Published Annually: Four. 6. Annual Subscription Price: $36 (non-member rate). 7.

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Average No. Copies Each Issue During Preceding 12 Months/ No. Copies of Single Issue Published Nearest to Filing Date: a. Total Number of Copies: 7,130/7,613; b. Paid Circulation: (2) 6,721/7,069; c. Total Paid Distribution: 6,721/7,069; d. Free or Nominal Rate Distribution: (3) 29/44; (4) 327/423; e. Total Free or Nominal Rate Distribution: 356/467; f. Total Distribution: 7,077/7,536; g. Copies not Distributed: 53/77; h. Total: 7,130/7,613; i. Percent Paid: 99.3%/98.9%. 16. Electronic Copy Circulation: N/A. 17. Publication of Statement of Ownership: Publication required. Will be printed in the December 2017 issue of this publication. 18. Signature and Title of Editor, Publisher, Business Manager, or Owner: Kerstin Firmin, Managing Editor. Date: 09/14/2017

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