San Francisco Attorney

T H E B A R A S S O C I A T I O N O F S A N F R A N CI S C O / F a l l 2 0 1 8

PROP F Right to Counsel for

Tenants Facing Eviction

MEDIATION FOR EVICTION PREVENTION

CIVILITY IN THE WORKPLACE

BASF’s Conflict Intervention Program

Conflict Resolution

The fall issue

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SAN FRANCISCO C O V E R

S T O R Y

F E A T U R E S

14

PROP F Groundbreaking San Francisco Measure Guarantees Counsel to Tenants Facing Evictions Laura Ernde

P RO P

28

Housing Dispute?

Handle It Quickly Online Simon Boehme

30 F E A T U R E S

22

Conflict Inter vention Ser vice: How an Innovative Program Prevents Evictions Roger Moss

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Celebrating 15 Years of Positive Outcomes: BASF's Bay Area Mediation Ser vices Marilyn King

36

Conflict Resolution to Support Kids' Learning: The San Francisco Unified School District Partners with the Bar Association of San Francisco Carole Conn

ATTORNEY A Publication of The Bar A ssociation of San Francisco

F E A T U R E S

C O L U M N S

40

6

Civility in the Workplace Rhea Settles

46

Preparing for the Inevitable: BASF's Mandator y Fee Arbitration Program Jeremy Sugerman

52

Navigating the Black Hole of California's Mediation Confidentiality Statute Jonathan Blute and Timothy Halloran

FALL

2018

PRESIDENT’S REPORT Healing the Border Situation Through Pro Bono Ser vice Malcolm A. Heinicke

10

BARRISTERS CLUB REPORT The Push for Practical Skills Andrew Amoroso

58

SOLO/SMALL FIRM Does the Estate Tax Amount to Double Taxation?

Laurence Blau and Vanessa Zurita-Rufer

4

BOARD OF DIRECTORS

64

INDEX OF ADVERTISERS

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 3

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

The Bar Association of San Francisco

www.sfbar.org

Editorial Team Carole Conn, Laura Ernde, Kerstin Firmin, Marilyn King, Emmy Pasternak, Kyiakhalid Ruiz Design/Art Direction Grant Barringer,

Sarah Davis, Kerstin Firmin

BASF BOARD OF DIRECTORS President Malcolm A. Heinicke President-Elect Doris Cheng Treasurer Stuart Plunkett Secretary Marvin Anderson Board of Directors Alexis Amezcua, David Carrillo, Terrance Evans, Sigrid Irias, Charles Jung, Sebastian Kaplan, Colin Kemp, Miriam Kim, Karen Kimmey, Carolyn Lee, Lisa P. Mak, Mary McNamara, Peter C. Meier, David Otsuka, Vidhya Prabhakaran, Jennifer Redmond, David Tsai, Sharon Woo BARRISTERS BOARD OF DIRECTORS

President Andrew Amoroso President-Elect John Hamasaki Treasurer Natascha Fastabend Secretary Kelly Matayoshi Board of Directors John-Paul Deol,

Lauren Young Epstein, Nadim Hegazi, Anjali Kulkarni, Sean McHenry, Jessica Ryland, Matthew Valdez, Jamie Wells, Pierre Zado

EXECUTIVE STAFF, BASF/JDC 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 EXECUTIVE STAFF, 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 EXECUTIVE STAFF, 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

SAN FRANCISCO ATTORNEY

(ISSN 0744-9348) Volume 44/Number 3.

Published quarterly for $36 per year by the Bar Association of San Francisco, 301 Battery Street, Third Floor, San Francisco, CA 94111.

Periodical Postage Paid at San Francisco, CA, and at additional mailing offices. Subscription inquiries and changes of address should be sent to San Francisco Attorney, 301 Battery Street, Third Floor, San Francisco, CA 94111.

POSTMASTER: Send address changes to San Francisco Attorney, 301 Battery Street, Third Floor, San Francisco, CA 94111. © Copyright 2018 by the Bar Association of San Francisco. All rights reserved. Reprint Requests: The Copyright Act of 1976 prohibits the reproduction of any portion of this issue except with the permission of the publisher. For permission to copy or to use mate­rial 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.

in this issue The Fall 2018 issue of San Francisco Attorney magazine focuses on conflict resolution. It is no secret that housing in San Francisco is a steady source of conflict, given the city’s lack of affordable housing. After exploring Prop F in our cover article, we present an innovative program that introduces mediation to housing disputes. From conflict resolution in the workplace, to mediation in schools, this issue showcases a variety of innovative, collaborative approaches.

Cover illustration by Grant Barringer

4 FALL 2018

Annual Gala OF THE

JUSTICE & DIVERSITY CENTER S ept emb er 2 7 | Ben tly Reserv e Ba n kin g H a ll

Thank you to our sponsors, co-chairs, and our honored guests for your dedication and commitment to justice and diversity.

2018 Gala Co-chairs: DAVID KELLY, GOLDEN STATE WARRIORS

SARAH FINIGAN, COBLENTZ PATCH DUFFY & BASS

2018 Sponsors PLATINUM Arnold & Porter Kaye Scholer Baker Botts Carlson, Calladine & Peterson Coblentz Patch Duffy & Bass Farella Braun + Martel Fenwick & West Hanson Bridgett Keker, Van Nest & Peters Kirkland & Ellis McGuireWoods Morgan Lewis & Bockius Morrison & Foerster Munger, Tolles & Olson O’Melveny & Myers Orrick, Herrington & Sutcliffe Perkins Coie Pillsbury Winthrop Shaw Pittman Foundation Shartsis Friese Wilson Sonsini Goodrich & Rosati Foundation Arthur & Charlotte Zitrin Foundation SILVER Latham & Watkins Kilpatrick Townsend & Stockton

as of august 28

BRONZE Greenberg Traurig Manatt, Phelps & Phillips Seyfarth Shaw PEWTER AT&T Bank of America Davis Wright Tremaine Cotchett, Pitre & McCarthy Hinshaw & Culbertson Ogletree, Deakins, Nash, Smoak & Stewart Polsinelli Rogers Joseph O’Donnell Sheppard Mullin Richter & Hampton Walkup, Melodia, Kelly & Schoenberger Wells Fargo Bank & Company, Law Department PEARL Cooper, White & Cooper DLA Piper Dolby Laboratories Durie Tangri Kazan, McClain, Satterley W W W. S F B A R . O R G / G A L A

& Greenwood Littler Mendelson McDermott Will & Emery Mintz Levin Cohn Ferris Glovsky and Popeo Robbins Geller Rudman & Dowd Roeca Haas Montes de Oca Rosen Bien Galvan & Grunfeld Rust Consulting | Kinsella Media Shearman & Sterling

DIAMOND Conrad & Metlitzky Fairgrieve Law Office Galek Law Gámez Law OPAL Bad Boys Bail Bonds Chhabra Law Firm First Republic Bank Gluck Daniel Jim Leigh, retired attorney and JDC volunteer Renaker Hassleman Scott University of San Francisco, Graduate Tax Program

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 5

PRESIDENT’S REPORT

HEALING THE BORDER SITUATION

THROUGH PRO BONO SERVICE Malcolm A. Heinicke

T 6 FALL 2018

he recent images from our southern border are shocking – our own government separating parents from their infants and small children simply for seeking to enter the country. These are hardly family values, and especially for us parents, it’s almost too difficult to imagine this happening to us. The uncertainty would be agonizing: is my child being treated like a criminal or being abused, will I ever see my child again, and if I do, what will be the long-term effect of this jolting separation and actual incarceration?

PRESIDENT’S REPORT

The Bar Association of San Francisco (BASF) responded by condemning this practice, and the Justice & Diversity Center's (JDC) Immigrant Legal Defense Program has long been fighting for due process rights and access to justice for immigrants throughout Northern California.

In addition, JDC provides technical expertise and capacity building, data collection and analysis, as well as advocacy.

JDC does this work as a proud partner with the organizations that make up the San Francisco Immigrant Legal Defense Collaborative, the Northern California Collaborative for Immigrant Justice, and the Northern California Rapid Response & Immigrant Defense Network. Currently, JDC has a team of eight attorneys and coordinators on

staff committed to protecting immigrant rights, and your support of JDC makes this possible.

But I want to be clear that those of you who do not practice immigration law can play a role too. As JDC Director Gloria Chun and I go around the city promoting JDC’s pro bono services, lawyers frequently comment on the tragic situation at the border and ask how they can channel their anger into action. Of course, a few among us went to the border and provided direct assistance, but you need not do this to make a true difference here. Just as affected parents and children will need help healing the separation scars suffered by this terrible policy, help is also needed to repair the trust of our immigrant communities and, really, our national standing.

Impression from San Francisco's Families Belong Together rally on June 23, opposing the separation of children from their parents and guardians along the U.S. border with Mexico.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 7

PRESIDENT’S REPORT

The scars that have been created are deep, but every time a volunteer lawyer provides an immigrant with representation and the associated chance at justice, it helps the healing process.

As I wrote in my last column, JDC has ready-made volunteer opportunities to assist in preventing evictions, combating domestic violence, and stopping unfair debt collection practices. And, in taking on these efforts, our volunteers very frequently serve immigrant communities.

Make no mistake, the scars that have been created are deep, but every time a volunteer lawyer provides an immigrant with representation and the associated chance at justice, it helps the healing process. It helps rebuild trust in the legal system. And just as important, it reminds people of the true values of this country and sends the message that we care about immigrants.

Your bar association is not stopping there. For those members who want to volunteer to handle immigration matters specifically, we will facilitate that too.

Attorney of the Day Program (AOD) For lawyers with immigration law experience, we have the AOD program at the San Francisco Immigration Court.

Through this program, volunteer lawyers provide counseling and same-day representation to individuals in non-detained

8 FALL 2018

removal proceedings before the San Francisco Immigration Court. In addition, there are opportunities for volunteer interpreters fluent in Spanish and English. A volunteer shift involves spending approximately two to three hours at the San Francisco Immigration Court to interpret during AOD’s free consultations with unrepresented respondents.

To learn more, please contact AOD@sfbar.org.

In addition, we have coordinated with several partner organizations to build pathways for pro bono opportunities for lawyers with no immigration experience: Kids in Need of Legal Defense (KIND) Through KIND, volunteers provide legal counsel to unaccompanied refugee and immigrant children in the United States. KIND protects unaccompanied children who enter the US immigration system alone and strives to ensure that no such child appears in immigration court without representation. Immigration experience is not required, and training will be provided. Imagine the healing that winning just one child asylum case would bring. If this interests you, please contact Katie Annand at kannand@supportkind.org.

Legal Services for Children (LSC) LSC has been serving unaccompanied children detained in custody in Northern California for many years. Attorneys interested in taking on pro bono cases to help detained children are asked to fill out an application (available at www.lsc-sf.org/get-involved/pro-bono-panel) and will then receive case summary emails immediately. Once again, attorneys of all backgrounds are needed. No immigration experience is required, and LSC will provide training.

Contact Andrea Del Pan at ProBono@lsc-sf.org.

Lawyers Committee for Civil Rights (LCCR) Since 1983, LCCR’s Asylum Program has provided legal representation for refugees who have escaped persecution and torture in their native countries. LCCR offers workshops, trainings, and other support to guide and inform each pro bono attorney who does asylum work to ensure they are fully

PRESIDENT’S REPORT

equipped to meet the needs of the client. Further, each pro bono attorney is paired with an immigration practitioner who mentors the pro bono attorney throughout the asylum process. Through these support structures, attorneys who have had little or no immigration law experience are able to successfully take an asylum case from beginning to end.

Contact: Elisa Piana at edellapiana@lccr.org.

and his community members embraced him, and he went on to an amazing career as a child psychologist and pioneer in the mother-infant attachment field. If he were still alive, I am certain that he would be mortified, not only as a citizen but also as a scientist, about what happened at the border recently. But then, as a practitioner, he would tell us it is time to heal.

More generally, we will work to facilitate a workshop for our members where you can hear from these and other legal services providers to determine which opportunity would be best for you. Please visit our resource page at www.sfbar. org/immigration/resources.aspx, which we update as new volunteer opportunities become available.

As lawyers, we too should have our own professional outrage, and I hope the ideas above will help some of you channel your personal anger into professional healing because respect for the law and one another is surely the best prescription here.

Please allow me to close on a personal note and explain why this issue is particularly meaningful to me. As I noted in my installation speech, I am a first generation American.

My father emigrated as a ten-year-old boy (not an infant), but the thought of him being separated from his mother immediately following their already harrowing escape from Germany is hard to imagine. Once he was here, this country

I N

T H E

I remain very proud to be a San Francisco lawyer.

Malcolm A. Heinicke is the 2018 president of the Bar Association of San Francisco. A partner at Munger, Tolles & Olson, his practice focuses on employment and complex commercial litigation, particularly in class and collective actions and employee mobility matters.

N E W S R O O M

Statements released by the Justice & Diversity Center and partner collaboratives in 2018:

8/30

Immigration Advocates Exploring Further Legal Action Against ICE’s Abrupt Transfers of Detained Immigrants

7/26

Justice & Diversity Center Joins Bay Area Professional, Religious and Community Organizations To Demand Trump Administration Reunite Families and Respect the Rule of Law

6/15 3/5

Separation of Families at The Border Lacks Legal and Moral Justification Rapid Response Networks Denounce Due Process Violations by ICE in Northern California

W W W . S F B A R . O R G / N E W S R O O M

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 9

BARRISTERS CLUB REPORT

The Push for

PRACTICAL SKILLS

Andrew Amoroso

A

s an organization tasked with fostering professional growth among our newer attorney members, the Barristers Club is constantly looking for effective ways to help Bay Area attorneys learn and develop. Professional growth in the legal profession involves a host of intersecting aspects: a deeper understanding of the law, building and maintaining a network, and defining and refining your career path.

Arguably, one of the most important and effective ways we can foster growth is by offering opportunities for attorneys to engage in practical skill building—specifically, the kinds of skills that attorneys are using to practice law on a day-today basis.

This includes skills related to the ability to research and write effective briefs, manage their practice, speak in public, take depositions, close a deal, advocate for clients, negotiate, communicate with colleagues and staff, and argue in court, to name a few. Since we’re spending most of our day utilizing these skills, it makes sense for us to focus a significant amount of time developing them.

10 FALL 2018

Certainly a valuable part of practical skill development is listening to tips, strategies, and advice given by experts and experienced practitioners. But in this context, we can’t forget to emphasize the key corollary to listening: actually doing.

With this in mind, in 2016 the Barristers Club launched a Practical Skills Initiative to increase practical skills development opportunities for junior attorneys. That effort has spawned a number of great ideas that we’ve been able to put into practice, and I mention a few of them here.

BARRISTERS CLUB REPORT If you are interested in participating in any of these programs, I encourage you to contact us directly so we can discuss how you can get involved: Public Speaking Practice Group Attorneys are constantly being called on to utilize their public speaking skills: arguing motions in court, addressing groups of colleagues at the office, and pitching potential clients. Last year we formed a bi-monthly public speaking practice group to help our members hone these skills with a little expert instruction and hands-on practice. After fifteen minutes of instruction from a guest speaker, participants break into small groups and take turns giving a short threeto five-minute speech in a videotaped session and receive feedback from the group.

Increased Focus on Workshops We’ve been encouraging our CLE organizers to host more workshop-style presentations that allow participants to play an active role. We’ve hosted and are planning to host more workshops on topics including: organizing your practice, managing your time, mock negotiations, mindfulness, and how to close deals.

Law Student Mentorship Program If you aspire to lead teams of attorneys or take on a leadership role at your company, understanding how to mentor and guide others is a key skill to develop. This year we created a law student mentorship program, which pairs Barristers Club members with law students from UC Hastings College of the Law, Berkeley Law, University of San Francisco School of Law, and Golden Gate University School of Law. This is a great way to both serve as a resource to students and develop your ability to lead and advise.

Pro Bono Committee Though our pro bono committee existed long before our practical skills initiative, it’s worth mentioning that this committee connects attorneys with a diverse range of nonprofit organizations in an effort to increase pro bono opportunities—an excellent way to serve the underrepresented while gaining valuable experience.

Next Gen Orders Over the past two years, board members and Barristers Club leaders have met with judges to promote “next generation judicial orders” and court guidelines aimed at encouraging law firms to have junior lawyers argue motions and take speaking roles at trial. This push led to, among other things, the placement of a statement on the San Francisco Superior Court webite encouraging parties to allow newer lawyers to play a significant role in litigating cases at the courthouse.

Practical Courtroom Tips for Associates This bi-annual program is an informal dialogue between judges and lawyers on how to effectively argue motions in court. This event allows newer lawyers to hear tips and best practices directly from the local judiciary.

These are all great options that have been suggested and created by our members—as well as our local judiciary and non-Barristers attorneys—based on needs they identified.

But here’s the most important part: we want to continue to expand our offerings and we’d like your help. We’re looking to the legal community to let us know how we can continue to help our newer attorneys grow through new and diverse programs. If you see an opportunity to teach a key practical skill, or have an idea for a workshop or training, we encourage you to reach out to us and help build on this momentum.

Giving junior attorney the space and opportunity to practice these important skills is key, not only to the development of our individual members, but to the strength of our entire legal community.

Drew Amoroso is president of the Barristers Club and founder of Move Associates, a company that helps law firms train their associates to achieve their performance and productivity goals, accelerate their professional development, and add value to the firm and its clients. Contact the Barristes Club at barristers@ sfbar.org.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 11

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 13

Groundbreaking San Francisco Measure Guarantees Counsel to Tenants Facing Eviction Laura Ernde

A

rmando Vazquez, a fifty-one-year-old restaurant server, was surprised in March when his landlord gave him two options-pay twice as much in rent or find a new place to live.

“That was so frustrating. If we have to move out of here, we weren’t sure where we were going to be able to afford it,” he said, given the Bay Area’s lack of affordable housing. San Francisco has now surpassed even New York City as the most expensive rental market in the country, according to rental listing website Zumper, which tracks market rents.

1,600

number of evictions last year

14 FALL 2018

Vazquez knew enough about the law to know that he had a good case, but he wasn’t getting any traction fighting the eviction on his own. It was only after he found a pro bono attorney through the Justice & Diversity Center (JDC) of the Bar Association of San Francisco that the landlord agreed to negotiate. As a result, Vazquez and his partner will stay in the rent-controlled Excelsior apartment they share with two other roommates for a $200-a-month increase in rent, totaling $2,500.

Tenant advocates say that success stories like this one could become the norm now that San Francisco voters approved Proposition F. The first-of-its-kind measure guarantees that every tenant facing an eviction proceeding will have the right to an attorney from the outset.

The measure puts San Francisco at the forefront of a growing national “right-to-counsel” movement that aims to provide litigants who face life-altering consequences in court the same representation that’s guaranteed to criminal defendants.

80-90% percentage of tenants facing eviction proceedings in court without legal representation

And although many questions remain about how the initiative will be implemented, tenant advocates are confident it will have a positive effect on the housing and homelessness problems, even if it can’t solve the intractable housing crisis. continued on page 18

Average Rent in San Francisco by neighborhood*

The most affordable neighborhoods in San Francisco are Hayes Valley, where the average rent goes for $2,787/month, Tenderloin and Civic Center, where renters pay $2,808/month on average.

$2,894

$3,969 $3,183

$2,929 $2,808

$2,787

$4,021 $4,060 $3,898

The most expensive neighborhoods in San Francisco are Presidio Heights ($3,969), South Beach ($4,021) and Mission Bay ($4,060).

$3,120 $3,121

*as of August 2018, Yardi Matrix

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 15

HOUSING JUSTICE: THE R OA D T O R IGH T T O C OUNSE L The Right to Counsel movement, also referred to as Civil Gideon, is based on the recognition that everyone should have access to legal services in cases involving basic human needs. Gideon refers to the 1963 landmark case Gideon v. Wainwright, in which the U.S. Supreme Court unanimously ruled that states are required to provide an attorney to defendants in criminal cases who are unable to afford their own attorneys. The Civil Gideon movement seeks to extend this requirement to civil cases where basic human needs are at stake.

1996

“Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth.”

—Justice Hugo Black, 1963, Gideon v. Wainwright

CITY FUNDING TO HELP UNREPRESENTED TENANTS San Francisco commits city funding for self-help to pro per tenants, with the goal of providing an answer to every tenant in an eviction matter filing.

REPRESENTATION AT SETTLEMENT CONFERENCES LAUNCHED The Justice & Diversity Center (JDC) begins training volunteer attorneys to represent tenants at mandatory pre-trial settlement conferences two days a week. This limited-scope representation helps people who had been facing eviction on their own negotiate with their landlords. The new program is a joint effort of JDC, the Eviction Defense Collaborative and the San Francisco Superior Court.

2001 GREATER CITY FUNDING San Francisco makes some eviction defense work a regular line item in the general city budget, and begins funding rental assistance.

2005 16 FALL 2018

2011 LEADING THE WAY TO THE FIRST RIGHT TO CIVIL COUNSEL CITY While co-chair of the Bar Association of San Francisco, Jim Brosnahan of Morrison & Foerster takes the lead in drafting the city’s Right to Counsel in Civil Matters Ordinance. He works closely with legal services providers, fellow law firm partners, Stanford Law School professors, and the president of the Board of Supervisors, in developing the ordinance that is eventually passed.

“It is no surprise that the caring people of San Francisco would have supported the city becoming the first right to counsel city in the United States.

There are 4.3 million Californians each year who go to court without a lawyer on issues which affect the relationship to their children, their housing, their credit and their medical care.”

—Jim Brosnahan in 2012, following the passage of San Francisco’s Right to Civil Counsel Ordinance

2012

From left, David Chiu and BASF Past Presidents Jim Brosnahan and Chris Kearney

RIGHT TO CIVIL COUNSEL ORDINANCE PASSES IN SAN FRANCISCO

2014 STANFORD REPORT HIGHLIGHTS PILOT PROGRAM’S ECONOMIC BENEFITS TO CITY Stanford Law School’s Levin Center for Public Service and Public Interest Law releases its report on San Francisco’s Right to Civil Counsel Pilot Program, finding that the program had leveraged $100,000 in initial funding into an estimated $2.12 million worth of pro bono legal services. The program had played a critical role in meeting eviction defense needs for more than 600 tenants in a single year.

While serving as president of the Board of Supervisors, nowAssemblymember David Chiu introduces and passes the legislation that declares San Francisco the nation’s first Right to Civil Counsel City. The ordinance also sets aside $100,000 to fund a pilot program. The program, a partnership between JDC and the Eviction Defense Collaborative, funds a staff attorney and develops systems for referral and placement of clients with attorneys.

PROP F PASSED In June, voters approve Proposition F and its promise of free legal representation for anyone facing eviction, regardless of income. San Francisco becomes the first city to pass such a law through a voter-approved initiative, another important step forward for the Right to Counsel movement.

2018 THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 17

continued from page 15

BETTER OUTCOMES FOR TENANTS Vazquez’s case is typical of the landlord-tenant cases handled

by JDC. Last year, with the help of pro bono attorneys, JDC handled 645 settlement conferences and provided 100 tenants with full-scope representation.

“It changes the entire tenor of a conversation when a lawyer steps up for someone who has been unrepresented,” said Gloria Chun, JDC Director and Managing Attorney.

A 2014 city budget analyst study found that 80-90 percent of tenants facing eviction were taken to court unrepresented.

Proposition F calls for full-scope representation within thirty days of an eviction notice or filing of an unlawful detainer action. A 2011 Harvard study found tenants who had lawyers throughout the entire eviction process did much better than people like Vazquez who received limited legal advice.

The city estimates that as many as thirty-five hundred tenants a year will be eligible for the free services. Mayor London Breed announced in early August that the city will earmark $5.8 million over the next two years to pay for the legal defense program. San Francisco currently spends $4.4 million a year on eviction-related services such as counseling, education, outreach and basic no-cost or lowcost legal services.

Tenant advocates say the city’s investment in legal counsel will save money in the long run. When people lose their housing, it can lead to a downward spiral-they can lose custody of their kids, lose their job, and wind up homeless or even in jail.

The goal of having legal representation isn’t necessarily to stave off eviction. Sometimes the tenant’s financial situation has changed and they just need more time or assistance to find a new place to live. Meanwhile, a lawyer can put tenants in touch with services that will help them find and keep stable housing, even if that means moving.

“This will not rewrite the law in terms of who wins and loses,” said Dean Preston, founder and executive director of statewide renters’ rights organization Tenants Together.

“Sometimes time is just as valuable as money.” For example, a parent who is two months away from the end of the school year or someone awaiting eligibility for public housing.

Some of the program’s success will depend on whether tenants take advantage of the program. Right now, up to 38 percent of tenants don’t even bother to fight an eviction notice, Preston said. There’s little information on why the default rate is so high. Will more people go to court when they have a lawyer to represent them?

But Preston and others said one thing is almost certainlandlords will be less likely to pursue unlawful evictions in the first place.

That’s a major reason why Preston is so optimistic that the measure will help combat the city’s housing crisis. He

18 FALL 2018

believes that one of the most effective ways to help the housing crisis is by keeping people who are affordably housed in their rent-control homes.

“I think it’s going to have a huge impact and will do more to stop evictions since rent control,” he said. “This certainly won’t stop all evictions, but it will be a major deterrent to fraudulent evictions.”

A majority of city residents are renters and Chun pointed out that with rents on the rise, there’s more incentive for landlords to try to evict long-term tenants in order to raise rents. The number of evictions was about 1,600 last year, a 26 percent increase from 2010.

“This will go a long way in giving people a fighting chance to stay in their homes in San Francisco,” Chun said. “That’s huge for us right now. It’s only fair and just that both sides should have a lawyer when housing is a basic human need.”

Prop F critics complained that renters of all income levels, including the wealthy, will be able to take advantage of the free legal assistance.

But tenant advocates countered that eviction usually impacts people who can’t afford to hire a lawyer. And wealthy people will most likely hire their own lawyer to represent them, as happens in criminal cases.

Chun said the vast majority of people who come to JDC qualify for aid. Even those who are middle class often can’t afford to hire an attorney, she said.

MORE LAWYERS WILL NEED TO BE TRAINED The Mayor’s Office on Housing has a year to figure out how to implement the measure, which could involve setting up a new organization or outsourcing the work to an existing group.

“It’s only fair and just that both sides should have a lawyer when housing is a basic human need.”

-Gloria Chun, JDC Director and Managing Attorney

The Eviction Defense Collaborative currently acts as a clearinghouse for people seeking help with evictions. The San Francisco nonprofit sees about 90 percent of those who respond to an eviction notice, said Managing Attorney Carol Bettencourt.

Bettencourt works with a number of other local agencies, including JDC to provide legal assistance. But there simply aren’t enough lawyers to go around.

“Everyone is at capacity,” she said.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 19

It’s a specialized area of law, with an interplay between state laws and local rent ordinances. There can be federal regulations as well if the case involves subsidized housing.

But it doesn’t take very long for attorneys to become experienced because the cases go so quickly through court.

NATIONAL PERSPECTIVE Prop F also has national implications for those who are tracking the “right to counsel” movement, also known as “Civil Gideon” after the Gideon v. Wainwright decision that established the right to have a lawyer in criminal cases.

recognize the necessity of having a lawyer to protect housing rights. The landlord-tenant relationship is fraught with what Pollack termed an “extreme imbalance of power.”

The scale of the problem is much larger in New York City, which has about 125,000 evictions a year. Its right-tocounsel law, passed last year, will be phased in over five years to provide lawyers for all low-income residents who come to housing court. Already, after the city increased funding for legal assistance to tenants, the number of evictions dropped 25 percent in two years. Filings dropped as well, Pollock said.

“It’s impossible to overstate how significant this is because housing is so critical,” said John Pollock, coordinator of the National Coalition for a Civil Right to Counsel. “A hundred years from now we’ll be shocked that we ever let people lose their housing.”

San Francisco’s effort was unique because it used the ballot initiative process, Pollock said.

While some jurisdictions outside San Francisco have established the right to counsel in vital areas such as child custody and contempt for failure to pay child support, San Francisco and New York are the first two jurisdictions to

Laura Ernde is a San Francisco-based communications consultant. She has covered legal affairs for more than a decade, as a journalist and former editor of the California Bar Journal.

“We’ve achieved quite a lot but we have a long way to go,” Pollock said.

A TA LE OF T W O RI G H T T O C O UN SE L C I T I ES

S A N F RA N C I S C O

NEW YORK

San Francisco and New York are the first two jurisdictions to recognize the necessity of having a lawyer to protect housing rights.

20 FALL 2018

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 21

CONFLICT

How an Innovative Mediation Program

INTERVENTION Prevents Evictions

SERVICE Roger Moss

The massive housing shortage [in San Francisco] drives illegal and unsafe rental arrangements.

Homelessness and problematic space sharing endanger people, cause incalculable financial loss, and incapacitate public services, including the court system.

22 FALL 2018

P

rasanna G. faced the loss of her home of over twenty years. A working senior citizen, Prasanna immigrated to San Francisco from India to care for her mother, who resided in publicly-owned affordable housing in Noe Valley. She moved into her mom’s apartment with the housing provider’s consent. Over the years, the provider asked Prasanna to sign various documents concerning her tenancy. Each request was coupled with a promise from the housing provider: “You can take over your mother’s lease when she passes.”

Yet in June 2017, still grieving the loss of her mother who had passed that spring, Prasanna found herself holding a legal notice from the landlord to move out immediately or face eviction. To make matters worse, Prasanna could not get legal representation because of a 2005 caretaker agreement she had signed that voided her right to succeed her mother as the apartment’s leaseholder. She “had no case,” according to respected tenant attorneys with three nonprofit advocacy groups.

The CIS team is engaged in nothing less than the preservation of home, hearth, and community. It does so by introducing compassionate, cooperative, interest-based negotiation into an increasingly toxic and stressed world of renters and building owners.

There may have been no legal case, but fortunately for Prasanna, she called BASF’s Conflict Intervention Service, which found an alternative resolution through mediation.

Today, she remains in her home of over two decades with a long-term lease.

The homelessness crisis in San Francisco needs no introduction. At least 7,500 San Franciscans live on the streets. Prasanna could have been one more added to the numbers. The massive housing shortage also drives illegal and unsafe rental arrangements. Homelessness and problematic space-sharing endanger people, cause incalculable financial loss, and incapacitate public services, including the court system.

These urgent conditions challenge communities throughout the Bay Area and the nation.

A critical element of the City of San Francisco’s war on homelessness is to prevent it whenever possible. Eviction prevention programs focused on tenant advocacy for vulnerable residents are a core component of these efforts.

And still, the magnitude of the crisis calls for lateral thinking and bold initiatives. In 2016, the city tapped the Bar Association of San Francisco (BASF) to develop a housing mediation pilot program with these attributes, which led to the creation of the Conflict Intervention Service (CIS).

Mediation, But With a Twist At its core, CIS is a mediation program. Innovative practices and solutions-driven messaging distinguish CIS from traditional mediation in the following ways: PROJECT DESIGN The CIS program is grounded in a deep understanding of both tenant advocacy and housing management. It offers facilitation, mediation, restorative justice, communications coaching, skilled negotiation, and social services support to maximize compassionate, practical solutions to housing conflict. CIS delivers these services through an ombudsperson, mediators, and social services support.

RAPID RESPONSE CIS services commence within twenty-four hours of first contact, seven days a week, throughout the year. Responding with urgency to housing conflict is the best prevention against the escalation of conflict that can lead to eviction.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 23

CIS methodology prizes fast and early intervention as the elements having the greatest impact to de-escalate conflict.

INTERDISCIPLINARY MULTICULTURAL CIS MEDIATOR TEAM Because mental illness and substance abuse are major drivers of conflict in supportive and affordable housing, CIS approaches its work through the lens of behavioral health. The CIS Mediator roster therefore includes therapists, drug counselors, and social workers, along with attorneys experienced in mental health advocacy. These mediators reflect the city’s diversity, are experienced in housing conflict, and are trained in CIS methodology.

CIS also provides for language diversity and supports with interpreters when needed.

CIS offers clients a non-adversarial, collaborative process that is focused on relationships, whether between residents, between residents and housing providers, or within tenant associations or provider staff. CIS models civility, which ripples into the community.

During her search for help, Prasanna contacted a social worker with the Homeless Advocacy Project who referred her to the CIS Helpline. Within minutes, Prasanna was in contact with CIS Mediation Counsel.

Seeing the inherent unfairness in Prasanna’s situation, but sensing that bureaucracy may be to blame, CIS Mediation Counsel contacted several housing provider staff members, eventually finding one who explained a thread of actions that created calamity for Prasanna. A convergence of rule changes, lost files, and poor communication was exacerbated by language barriers. CIS informed provider senior management, who agreed to mediation.

Given the case’s complexity, it was assigned to one of CIS’s attorney mediators. The first session led to an internal procedures review by the provider. The second session produced a settlement that restored the provider’s promises to Prasanna and a lease agreement in her name.

Prasanna’s case demonstrates that CIS mediation can produce results that are not necessarily possible by looking

24 FALL 2018

solely through the lens of litigation. Critically, the thirdparty neutrality of a mediator outside the conflict—who operates in a non-adversarial and confidential setting— helps make it possible to illuminate unfair results that demand correction no matter their legal justification, and for institutional stakeholders to change their minds without fear of the consequences of admitting error.

Prasanna kept her home and the housing provider created new policies and procedures to prevent similar occurrences in the future. Everyone won.

Building a Dialog, Not a Court Case Housing conflict exists at the intersection of landscape and human interaction. While lease language and the law are important guideposts inside the tenant-landlord relationship, they are not always the most suitable means of seeing through the conflict. The answers to problems are embedded in the landscape itself, and with the participants in conflict. CIS mediators travel to the conflict zone; they walk the neighborhood streets, climb stairs, and engage with residents and provider staff in their homes and offices.

Sometimes, the best remedy is to help people establish constructive dialogue about mutual concerns and interests, rather than keep the debate about rights and the law.

Philosophically, CIS seeks to transform one resident, one housing provider, one building at a time with the goal to shift the common assumptions about landlord-tenant relationships and the practice of landlord-tenant law.

Instead, CIS regards the landlord-tenant relationship as one that is created, nourished, and managed as a long-term association for the benefit of both resident and property owner.

Illustrating this principle is another case. Janet B. faced eviction for laying hands on a property manager and violating a zero-tolerance policy against violent threats and even minor nonconsensual physical contact. Having experienced countless homeless years on the streets of San

From left, Rachelle Evans, case manager at the Windsor in San Francisco’s Tenderloin district; Janet B., resident at the Windsor; Simon Boehme, mediator, Conflict Intervention Service; Laura Rodriguez, program director of support services at the Windsor

Francisco, Janet was terrified of losing her home, where she had resided in safety since 2010.

Janet and the property manager had much in common. Each was an African-American woman who had lived with extreme hardship, suffered trauma, and recovered from the ravages of addiction. Janet was elderly and had grown up in an orphanage in the Caribbean; the manager was young, and a product of tough public housing projects in New York. Each was dynamic, head-strong, and creative in their own way. Perhaps too much alike, they were not going to get along.

The director of support services for the housing location contacted CIS for help and the next day, CIS mediator Simon Boehme met privately with Janet and the director.

For background as to what happened next, it is important to know that Janet found her way out of an impoverished life by becoming a calypso singer. She sang across Europe before tragedy and misfortune landed her alone in San Francisco. The level of trauma Janet has experienced cannot be adequately described. Suffering from extreme posttraumatic stress disorder and mildly bipolar, she finds solace and comfort in her music. In privacy with Simon and the

housing director, Janet sang her story, in tales of her own musical composition.

In such extraordinary circumstances, miracles happen. To everyone’s surprise, Simon replied to Janet in song, drawing on his lifelong passion for choir singing and operatic pursuits. Singing with Simon created safety for Janet, deep connection, and trust. In this safe place, it became easy to address the conflict that threatened Janet’s home.

What followed was a simple proposal. Janet and the manager would each agree to turn around if either saw the other one coming. Rules for engagement were made for those times when they both had to share common areas. A two-page

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 25

handwritten mediation settlement agreement was made, and Janet’s eviction file was recalled from the attorneys.

In the eighteen months since this agreement, there have been minor dustups between Janet and the manager. Under CIS Aftercare, however—a program element that supports parties following mediation—these have been quickly cleaned up by a visit from Simon and a song or two more.

Breaking Through Stereotypes In another case, Lola K., aged eighty-nine, faced eviction for violating a restraining order involving her service dog Milo, who she routinely let wander unsupervised through the building. Lola had sublet her bedroom in violation of her lease, losing access to a private yard that Milo had used for years. Two lawsuits and a complaint to the City Human Rights Commission were underway when attorneys for both parties contacted CIS. A CIS mediator was quickly dispatched to visit Lola at home. Rapport came quickly, as did a practical solution.

The mediator found a way for Milo to regain access to her yard. Installing a ramp from a living room window would do the trick.

Mediation restores voices to participants that can be lost in litigation. It enables them to see each other as human beings who share mutual concerns and interests.

26 FALL 2018

A facilitated conversation followed between Lola and her attorney. In this meeting, Lola named her fear. The new building owner “just wants me out-that’s what they do.” In fact, what came to be revealed was that the owner’s business plan hinged on renovating and renting two empty units, not evicting other tenants. The owner himself was a senior citizen and 3rd generation holder of small properties in the neighborhood, with a reputation as a caring landlord.

Next came a structured mediation between Lola, her landlord, and legal counsel at a neutral CIS location. The landlord immediately agreed to install a ramp for Milo. He explained his plans for the property to Lola. They bonded as seniors who both were the children of immigrants. A written settlement agreement allows Lola to retain her home for as long as she wishes to reside there. All litigation ceased.

This case reveals that common assumptions tenants and landlords make about each other can aggravate conflict.

Mediation restores voices to participants that can be lost in litigation. It enables them to see each other as human beings who share mutual concerns and interests.

A Model Worth Replicating CIS has enjoyed early success, with initial sampling indicating that 95 percent of the time those served by CIS remain housed post-CIS intervention. Ongoing CIS Aftercare and check-ins continue to track results. The qualitative effects of the program have led the city to consult with CIS in support of other initiatives. These include consultations with the city’s Below Market Rent (BMR) asset management team, working with BMR communities, and providing educational and mediation support to residents of the Lower Polk Community Benefit District (CBD).

The CIS team is engaged in nothing less than the preservation of home, hearth, and community. It does so by introducing compassionate, cooperative, interest-based negotiation

into an increasingly toxic and stressed world of renters and building owners.

This thinking has attracted attention beyond San Francisco.

The first annual gathering of CIS mediators and partners was attended by housing conflict professionals from Seattle and Milwaukee. Local collaborators included representatives from the UC San Francisco Citywide Roving Team, the San Francisco Police Department psychiatric unit, UC Hastings College of the Law, the Human Rights Committee of San Francisco, the San Francisco Apartment Association, and Lower Polk CBD. Following CIS presentations at regional alternative dispute resolution conferences, groups from Vancouver, Canada; Los Angeles; Charleston, S.C.; and Indianapolis have shown an interest in developing similar programs in their communities.

Cost: Save $100: Register by October 19 After October 19: $895 BASF/Co-Sponsor/Minority Bar Coalition Members; $995 all others Faculty Ron Kelly is one of the principal architects of California ADR law. His training materials are licensed and used around the world in numerous languages. Judges in every superior court in the Bay Area have chosen to enroll in his trainings.

R E G I S T E R AT www.sfbar.org/calendar

These collaborators agree that the old ways don’t work. They are energized by the prospect of delivering rapid responses to conflict that prevent eviction and greatly increase access to justice.

CIS is now poised to expand its conflict resolution services to others seeking rapid, flexible, and affordable alternatives to the legal process. Soon, CIS services will be available for a reasonable fee to anyone facing housing-related controversy.

These offerings will not only provide relief to thousands of tenants and landlords seeking help navigating conflict, they will sustain and expand the ability to provide free services to those who need them.

Roger Moss is Mediation Counsel with the Bar Association of San Francisco’s Conflict Intervention Program.

THE BAR ASSOCIATION OF SAN FRANCISCO, THE ALAMEDA AND SAN MATEO COUNTY BAR ASSOCIATIONS, THE MARIN AND SONOMA COUNTY BAR ADR SECTIONS, AND THE SAN FRANCISCO TRIAL LAWYERS ASSOCIATION PRESENT

ARBITRATOR CERTIFICATE TRAINING: THREE DAYS November 10, November 17, December 1 20 CLE hours, including 2 hours of legal ethics Do you want the skill and confidence to settle complex cases in a way that's more final than most court decisions? Do you want to enhance your own credibility as counsel, mediator, or dispute resolver?

Well-represented and sophisticated parties like Fortune 500 companies and professional athletes voluntarily choose arbitration. Why? They know they can choose an arbitrator who really understands their issues. They can shape their own process. Perhaps most importantly, they can actually get a prompt hearing and a final and binding decision.

With this training, you can be that arbitrator!

CERTIFICATE ISSUED ON COMPLETION

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 27

HOUSING DISPUTE? HANDLE IT QUICKLY ONLINE

By Simon Boehme

H

ousing disputes emerge daily across San Francisco and the Bay Area. Escalating roommate disagreements, behavioral problems that disrupt a housing community, and unlawful detainer legal actions—blended with the most expensive rental prices in the United States—make for a perfect storm. The varying range of disputes provokes a challenge to the housing landscape and the community at large, but especially to residents and landlords. Where do people go for help with disputes? Are traditional mediation services appropriate for their situations?

The Conflict Intervention Service in Affordable Housing (CIS) program can help answer these questions. CIS is a grant-funded project of the City and County of San Francisco in partnership with the Bar Association of San Francisco’s Bay Area Mediation Services Program. As illustrated by the previous article, this innovative program utilizes skilled mediators with diverse backgrounds in landlord-tenant law, psychology, addiction, mental health, and housing conflict to resolve disputes in affordable housing that can lead to eviction or homelessness.

Entering the second half of 2018, CIS is expanding services to meet people where they often go for help: online. Using online tools enables CIS to quickly address conflicts arising in housing across San Francisco. In real time, CIS can respond swiftly to channel productive conversations and stabilize relationships.

28 FALL 2018

Here is how it works: On the CIS website, cismediation. org, users fill out a form informing mediation staff where the issue is located, what the issue is, and any other relevant information the mediators may need to know. CIS often responds within one to two business days, if not within hours in certain circumstances.

Another feature critical to the CIS model is the ability to instantly connect to an online mediation room—where the mediator, one or all parties, and other stakeholders, may see each other and work toward a solution. Synchronous tools such as video-conferencing provide powerful ways for mediators to read facial expressions and listen to tones of voice. It also allows parties to show evidence of hoarding, infestation, and physical damage in a housing unit, while, at the same time, keeping parties separate who are not ready to meet face-to-face. Online mediation not only benefits the mediators but all of the parties involved.

CIS uses Zoom, a secure video-conferencing tool. A guarantee of security and confidentiality is paramount for mediations and Zoom provides end-to-end encryption of all content. This type of encryption is ideal for mediators because only the communicating parties can read messages and communicate. For instance, if the mediator and the resident are in a Zoom video conference, and using endto-end encryption, those two can speak confidentially with confidence as the technology protects the conversation from any outsiders.

Using video tools within our mediation practice eases scheduling and saves parties the cost of traveling.

Given the dynamics of housing conflicts, conversations do not exist in a vacuum. Often a property manager may want advice or coaching on managing a dispute with residents, and vice versa. Two roommates may wish to revisit a settlement agreement they made months ago. Perhaps a resident is scared of another resident, and only wants to talk with a mediator because there is no one else he or she trusts. The traditional model of mediation can’t accommodate these situations. But with CIS mediators Access to online dispute resolution, one tablet at a time: From left, Jeri-Lee Young, Swords to trained in video-conferencing best Plowshares (STP) assistant director; Julie Ann Frazier, STP property manager; Patricia Draves, CIS mediator and mediation administrator; and Joseph Goodale, STP case manager practices, many of these shorter conversations can take place online while maintaining the important ability to see the other person. Stanford Law’s Legal Design have needed to travel for an in-person mediation to happen Lab research suggests users of legal resources, particularly quickly. The mediator was able to create separate caucus when it comes to access to justice and technology, generally rooms (a useful tool for mediators on Zoom), to first hear find a face-to-face feeling is important. Giving users a sense from each side independent of the other about the nature of of personalized guidance to resolve their disputes provides a the situation. The mediator then brought the parties together into the video conference and conducted the mediation. meaningful engagement.

Once an agreement was reached, the mediator wrote the With the generous support of the City and County of San settlement agreement. The mediation process was seamless, Francisco, CIS deployed six tablet computers to various even though it had occurred online. community partners, including the Lower Polk Community Benefit District, as part of the Lower Polk Tenant Landlord This is only the first iteration of many tools planned for Clinic, and to supportive housing units. Tablets provide the future. CIS continues to learn from all of its online and flexibility and increase access to this essential online tool. offline experiences. Supplementing face-to-face mediations Many residents using CIS services do not have smartphones with the use of technology to investigate and confer with or computers, and access to computers and wireless internet each side only strengthens our ability to respond rapidly and can vary from building to building. While some may have flexibly to meet the needs of residents and landlords. CIS access to a telephone, the technology divide is prevalent in plans to expand its offering of online mediation to ensure no some buildings and deters people from accessing services. By person deals with a housing conflict alone. deploying tablets, CIS hopes both residents and landlords will use our services more to bring mediated solutions to the table. Simon Boehme is a mediator and Online Dispute Resolution (ODR) expert. He is CEO of LegalWin. To learn more about As one example, CIS deployed this tool to bring together a CIS’s online mediation, visit www.cismediation.org or email us landlord’s attorney based in San Francisco, a resident living at cis@sfbar.org. To learn more about online dispute resolution, in San Francisco, and a mediator who otherwise would visit www.odr.info.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 29

Celebrating Bay Area

15 Years of Positive Outcomes

Mediation Services

By Marilyn King

I

n the past fifteen years, the Bar Association of San Francisco’s (BASF) Bay Area Mediation Services matched hundreds of cases with experienced mediators who get results. Two-thirds of BASF mediations end in settlement, and parties report a stunning 99 percent satisfaction rate. It is no wonder that well over half the time, attorneys return to the program with their next cases. BASF is committed to continuing to provide this high-quality mediation service so that both the legal community and the public can rely on an affordable, effective, and constructive process for resolving disputes and improving understanding.

The Bay Area Mediation Services Program—originally called the Voluntary Mediation Program—was established in 2003 in response to requests from local attorneys for an association-sponsored program as an alternative to more costly, judge-led mediation services. At the time too, mediation was increasingly encouraged by the courts and was becoming an integrated component of the civil litigation process, so more litigants began turning to BASF for help. continued on page 35

30 FALL 2018

“BASF Mediation Services provided not only a capable mediator but great facilities and a helpful staff.”

-Un Kei Wu, Liberation Law Group

THE BAR ASSOCIATION OF SAN FRANCISCO

Bay Area Mediation Services BASF’s professional mediators facilitate dispute resolution in over 30 areas of law and have on average 30 years of law practice experience. For more information and to see mediators’ full profiles, visit www.sfbar.org/mediation.

Robert Aune

Thomas C. Crosby

Areas of Experience: Real Estate, incl. Purchase and Sale, Financing, Leasing, Construction, and Construction Defects; Homeowner Association Law; Insurance Coverage

Areas of Experience: Personal Injury, Wrongful Death, Toxic Torts, Professional Malpractice, Construction Disputes, Sexual Harassment, Wrongful Termination, Public Entities, FELA, Family Law, Trusts & Estates, Commercial Disputes

Attorney/Mediator - Aune & Associates

Elizabeth E. Bader

Bader Conflict Resolution Services Areas of Experience: Healthcare, Intra-organizational, Medical Malpractice, Partnership Dissolution, Professional Malpractice, Real Estate

Frank Burke

Frank Burke Mediation Areas of Experience: Business; Commercial; Construction; Contracts; Employment/Workplace; Environmental; Financial; Government; Healthcare; HOA, TIC, Condo Disputes; Intellectual Property; Intra-organizational; Landlord/Tenant; Legal Malpractice; Partnership Dissolution; Prof.

Malpractice; Real Estate; Securities

Fred Carr

Carr & Venner ADR Mediation Services Areas of Experience: Maritime, Personal Injury, Wrongful Death, UIM, Property Damage, Product Liability, Premises Liability, Construction, Real Estate, Contract, Employment Law, Insurance Matters

Dean A. Christopherson Dawe & Christopherson

Areas of Experience: Banking, real estate, commercial, contracts, consumer and collections litigation (incl.

FDCPA and related defenses)

Kevin C. Coleman

Mediation Office of Kevin C. Coleman Areas of Experience: Personal Injury, Employment, Landlord Tenant, Neighbor/Easement/Boundary/ Fence, Real Estate, Business, Construction Defense, Lemon Law, Estate Disputes

Crosby Law Group, Mediator

Susan Joan Davidson

Attorney /Dispute Resolution Specialist Areas of Experience: Labor and Employment, Housing (Landlord-Tenant, HOA/TIC/Condo Disputes), Real Estate, Construction, Personal Injury, Estate Planning, Disability, Elder Law

Mark J. Divelbiss Mediator and Attorney

Areas of Experience: Business/Commercial; Construction; Contracts; Disability; Discrimination/Employment; Fee Dispute; HOA; Insurance; Labor; Landlord/ Tenant; Mechanic’s Liens; Partnership; Personal Injury; Products Liability; Real Estate; Women’s Issues; Family; Education; Entertainment; Financial; LGBT; Professional Malpractice; Uninsured Motorist

Martin H. Dodd

Attorney/Mediator, Futterman Dupree Dodd Croley Maier Areas of Experience: Business, Civil Rights, Commercial, Construction, Contract, Disability Rights, Discrimination, Employment, Fee Disputes, Government, Intellectual Property, Labor, Personal Injury, Real Estate

Paul J. Dubow Arbitrator/Mediator

Areas of Experience: Business, Civil Rights, Commercial, Contract, Disability Rights, Discrimination, Employment, Fee Disputes, Franchise Law, Insurance, Legal Malpractice, Real Estate, Securities

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 31

BAY AREA MEDIATION SERVICES

Robert T. Fries

Margaret Hand

Areas of Experience: Business, Civil Rights, Contract, Disability Rights, Discrimination, Employment/Workplace, Labor, Personal Injury

Areas of Experience: Trust, Legal Malpractice; Probate matters, incl. fraud, undue influence, forgery or mistake, objections to a fiduciary’s accounting, actions to remove or surcharge a trustee or executor or other fiduciary, contested conservatorships or guardianships, elder abuse, under Probate Code or Welfare & Institutions Code

Carter, Carter, Fries & Grunschlag

Mark Gainer Legal Additions

Areas of Experience: Business, Commercial, Contracts, Debt Collection, Employment, Entertainment, Fee Disputes, Financial, Intellectual Property, Intra-organizational, Labor, Partnerships, Personal Injury, Professional Disputes, Real Estate, Real Property, Trusts

Nicole Gesher

Attorney and Mediator, Gesher Mediation Areas of Experience: Business, Civil Rights, Commercial, Contracts, Fee Disputes, Financial, HOA/TIC/ Condo Disputes, Intellectual Property, Landlord/Tenant, Partnership/Nonprofit Dissolution, Women’s Issues

Matthew J. Geyer Attorney/Mediator/Arbitrator

Areas of Experience: Business, Commercial, Condos and TICs, Contract, Disability Rights, Discrimination, Employment, Entertainment, Environmental, Fee Disputes, Government, Healthcare, Insurance, Landlord/Tenant, Land Use, Legal Malpractice, Probate, Real Estate, Securities; Wills and Trusts

Laura Goldin

Mediation Law Office of Laura Goldin Areas of Experience: Family Law, including all aspects of Domestic Partnership, Non Marital and Marital Terminations (Asset Division, Child and Spousal Support, Child Custody), Pre and Post Cohabitation and Marital/Domestic Partnership Agreements, Pre-Estate Planning Agreements, Probate Dispute Resolution, Housing Issues

Stephen J. Gorski Law Offices of Stephen Gorski

Areas of Experience: Discrimination, Disability Rights, Employment, Gay & Lesbian Issues (Employment Related); Personal Injury

Judge Ron Greenberg, Ret. Areas of Experience: Business, Commercial, Construction, Contract, Employment, Family, Intra-organizational, Landlord/Tenant, Legal Malpractice, Medical Malpractice, Personal Injury, Real Estate 32 FALL 2018

Hartog, Baer, & Hand

Bill Helvestine

Senior Counsel, Crowell & Moring Areas of Experience: Business Disputes, Breach of Contract and Fraud, Unfair Competition Law (UCL), ERISA, Antitrust, Employment and Discrimination Law, Landlord/Tenant, Health Care Disputes, Class Actions

Frederick C. Hertz Law Offices of Frederick Hertz

Areas of Experience: Real Property, Non-Marital And Marital Dissolutions, Co-Ownership Conflicts, Business Partnership Disputes, Family Disputes, Land Use & Environmental Conflicts, Neighborhood Conflicts

Robert M. Hirsch

Law Offices of Robert M. Hirsch Areas of Experience: Labor and Employment, Commercial and Business, Civil Rights, ERISA, Real Estate, Securities, Contract, Legal Malpractice, Fee Disputes, Intra-Organizational Disputes; Injury and Med-Mal

Richard Idell The Idell Firm

Areas of Experience: Entertainment; Business Contracts; Real Estate; Investment Advisor/Stock Broker Disputes; Unfair Competition; Trade Secret; Tax Shelters; Copyright; Trademark; Internet Law; Construction; Professional Negligence; Personal Injury; Insurance; Land Use; Banking; Estate; Taxation and Trust Litigation; Landlord/Tenant

Robert Jacobs

Attorney/Mediator/Arbitrator Areas of Experience: Real Estate; Business; Commercial; Contract; Construction; Partition; Broker Claims; Fraud; Dissolution of Business Entities; Buyouts; Loan Disputes; Easements; Title Defects; Deeds; Conveyances; Liens; Security Interests; Collection; Foreclosure; Leases; Partnership Disputes; Franchises; TIC; Landlord/Tenant

BAY AREA MEDIATION SERVICES

Jeffrey Kaufman

Theodora Lee

Areas of Experience: Business; Commercial; Construction; Insurance; Environmental; Fee Disputes; Product and Premises Liability; Personal Injury; Malpractice – Agent, Accountant, Psychologist, Attorney, and other Professional Liability; Fidelity and Surety; Contracts; Fraud; Maritime and Admiralty; Real Estate; Landlord/Tenant; Intellectual Property

Areas of Experience: Workplace Harassment and Discrimination, Wrongful Termination, Labor Disputes, Wage and Hour Matters, Board Of Director Disputes, Personal Injury, Real Estate

Carol Kingsley

Experience: Real Estate, TIC and Condominium Disputes, Partnership and Business Conflicts

Areas of Experience: Business, Commercial, Construction, Contracts, Credit/Financial, Employment, Entertainment, Fee Disputes, Franchise, Insurance, Intellectual Property, Intra-Organizational, Medical Malpractice, Partnership Disputes, Patent/Trademark Disputes, Personal Injury, Probate/Trust, Professional Malpractice, Real Estate, Securities, Taxation

Michael L. Marx

Mediator/Arbitrator/Attorney

Kingsley Mediation Services

Sanford Kingsley

Mediation Offices of Sanford Kingsley Areas of Experience: Commercial Litigation, Insurance (including coverage and bad faith), Real Estate, Employment Disputes, ERISA, Personal Injury, Legal/ Medical Malpractice

Guy O. Kornblum

Kornblum Cochran Erickson & Harbison Areas of Experience: Auto and Homeowner’s Coverages; Commercial Liability and Property Damage; Commercial Litigation; E&O Coverages; Insurance Coverage of all types (commercial, individual and personal); Insurance Bad Faith; Medical and Legal Malpractice; Personal Injury; Specialized Coverages; Uninsured and Underinsured Motorist; Wrongful Death

Dr. Urs Martin Laeuchli Mediator/Arbitrator

Areas of Experience: Arbitration, Commercial, Defamation, Employment, Family, Intellectual Property, Insurance, International Trade, Landlord-Tenant, Political to Real Property Disputes

Littler Mendelson

Ross McLauran Madden Mediation Services

Goodman, Neuman & Hamilton Areas of Experience: Business, Commercial, Construction, Contract, Fee Disputes, Insurance, Real Estate, Cannabis Business Disputes

Herman D. Papa Judicate West

Areas of Experience: Personal Injury/ Wrongful Death, Public Entity Liability, Premises Liability, Construction Defect, Admiralty and Longshore Harbor Workers Act, Aviation, FELA and Railroad Crossing Litigation, Professional Malpractice/ Medical/ Dental, Manufacturer’s Liability, Will Contest, Employment/Workplace/Wage-Hours Disputes, Family, Disability

Diana R. Passadori

Attorney and Mediator - Passadori Family Law & Mediation Areas of Experience: Family Law; Divorce; Domestic Partnership Dissolution; Property Division; Spousal and Child Support; Custody/Visitation, Incl. MoveAway Requests; Pre-and Post-Marital Agreements; Post-Judgment Modification and Enforcement

Mark D. Petersen

Mediator/Attorney, Farella Braun + Martel Areas of Experience: Business, Landlord/Tenant, Construction, Intellectual Property

Basil Plastiras Plastiras & Terrizzi

www.sfbar.org/mediation

Areas of Experience: Business, Commercial, Construction, Contract, Fee Disputes, Landlord/ Tenant, Legal Malpractice, Medical Malpractice, Personal Injury, Probate, Real Estate, Uninsured Motorist THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 33

BAY AREA MEDIATION SERVICES

Patricia Prince

Alice Shikina

Areas of Experience: Business Disputes, Commercial, Contract, Employment, Wrongful Termination, Harassment, Wage and Hour, Partnership Disputes, Probate/Will Contests, Personal Injury, Landlord/Tenant, Civil Rights, Disability, Entertainment, Intellectual Property, Intra-Organizational, Women’s Issues

Areas of Experience: Landlord Tenant, Personal Injury, Entertainment, Employment, Family Disputes

Prince Law & Mediation

Stephen Ruben The Ruben Law Firm

Elizabeth H. Shwiff Mediator

Areas of Experience: Due Diligence of Life Insurance, Financial Planning, Fraud Investigations, Litigation Support Services, Pension Plan Investment Products

Areas of Experience: Family Law; Dissolution; Domestic Partnership incl. Dissolution; Cohabitation Claims Under Marvin v. Marvin; Property Division; Spousal and Child Support; Custody, Visitation Disputes; Pre-and Post-Marital Agreements; Attorneys Fee Disputes

Arthur R. Siegel

Russell S. Roeca

Teri H. Sklar

Areas of Experience: Professional Liability; Medical and Legal Malpractice; Fee Disputes; Real Estate; Personal Injury; Commercial, Business Litigation

Areas of Experience: Business, Civil Rights, Complaints Against Police Officers, Co-ownership Conflicts, Commercial, Disability, Discrimination, Elder Issues, Education, Employment, Fee Disputes, Family, Labor, Landlord/Tenant, Land Use, Neighborhood Conflicts, Personal Injury, Real Estate, Women’s Issues

Roeca Haas Montes De Oca

Tonya Saheli, JD, MS Saheli Legal Mediation

Areas of Experience: Probate, Divorce, Family Law/ Custody, Contract Disputes, Business and Employment Disputes, Property/Landlord Tenant Issues, Patent Infringement, Mediations for the Religious Community, Healthcare/Malpractice Issues, Public Education Disputes

Stephen G. Schrey Schrey Mediation

Areas of Experience: Business, Commercial, Construction, Contracts, Disability, Employment, Environmental, Financial, Insurance, Intellectual Property, Landlord-Tenant, Legal Malpractice, Medical Malpractice, Personal Injury, Products Liability, Professional Malpractice, Real Estate

Allan Schwartz Mediator

Areas of Experience: Real Estate, Copyright, Contracts, Arts and Entertainment, Trademark, Construction, Business Law, Professional Malpractice, Fee Disputes and Fiduciary Duty Claims

Malcolm Sher sher4mediatedsolutions

34 FALL 2018

Shikina Mediation and Arbitration

Areas of Experience: Business, Contracts, Partnerships, Employment, Personal Injury/Property Damage, Professional Liability, Real Estate

Law Offices of Arthur R. Siegel Areas of Experience: Labor and Employment, Disability, Discrimination, Civil Litigation

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Michael C. Tobriner

Law & Mediation Offices of Michael C. Tobriner Areas of Experience: Family Law, incl. Dissolution, Marital Separation, Child Custody, Child and Spousal Support, Property Division, Pre- and Post-marital Agreements, Cohabitation Agreements and Dissolutions

Claudia Viera

Mediation Law Offices of Claudia M. Viera Areas of Experience: Business, Civil Rights, Commercial, Contract, Disability Rights, Discrimination, Education, Employment, Estates & Trusts, Family, , HOA Disputes, Landlord/Tenant, Partnership Dissolutions, Intra-Organizational, Retaliation, Wrongful Termination, Wage & Hour

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Julie A. Welsh

Julie A. Welsh Mediation Services Areas of Experience: Personal Injury, Product Liability, Medical Malpractice, Contract, Employment, Education, Disability Rights, HOA, Landlord-Tenant

continued from page 30 Today, pre-screened qualified mediators with expertise in over thirty areas of law are available Bay Area-wide. A fast and easy administrative process takes care of logistics, including reserving conference space at BASF. The program has handled matters ranging from homeowners’ association disputes to intellectual property/copyright infringement, and from matters involving individual unrepresented parties to multi-party issues with counsel from several large firms.

Those who serve as mediators with the program have long welcomed a respected organization to associate with, and the San Francisco Superior Court lists BASF’s program as one of its recommended ADR options. In addition, BASF’s mediation program was included in The Recorder’s Hall of Fame after being voted a top mediation services provider for five years in a row.

The profiles of over fifty BASF mediators are listed on the BASF website, with mediator photographs, biographies, and rates. You can search by name, area of practice, or geographic location within the San Francisco Bay Area.

“Theodora Lee has a reputation as a fierce advocate, but her skills as an impartial mediator are equally as impressive.”

-Barbara Lawless Lawless & Lawless

“Using a BASF mediator [Ross Madden] helped us to resolve a difficult and contentious payment dispute through calm dialogue in a safe space.”

-Nick Berg CitiScape Property Management Group

Parties pay a low administration fee and fill out one simple mediation consent form to get started. They may request a specific mediator or ask knowledgeable BASF staff to assist with selection.

BASF mediators provide one hour of preparation and the first two hours of mediation time at no charge. Of course, a matter is not limited to two hours; mediations have ranged from a few hours to sessions stretching over several days. The time beyond the first two hours is charged at the mediator’s hourly rate.

And finally, the service is not limited to San Francisco cases or residents, and can be used whether or not the dispute involves a court case.

So, next time you are looking for a mediator, remember that BASF’s Bay Area Mediation Services is here to offer professional, experienced mediators and incredible value.

Learn more here: www.sfbar.org/mediation.

Marilyn King is the Alternative Dispute Resolution Services Manager at the Bar Association of San Francisco. She coordinates the Mediation Services Program and the Early Settlement Program.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 35

CONFLICT RESOLUTION TO SUPPORT KIDS' The San Francisco Unified LEARNING School District Partners with the Bar Association of San Francisco

By Carole Conn

S

hiela comes to the school one day and sees her son’s speech language pathologist with a baby. She discovers that the pathologist had been out on maternity leave. She is extremely upset that this was not communicated to her. The principal begins to explain to Shiela that a letter was mailed out to all families explaining the maternity leave and that the district had worked to find a substitute provider. Shiela is so upset she refuses to talk to the principal and demands that her son’s missed sessions be made up as soon as possible.

36 FALL 2018

This year, the program expanded to offer facilitated meetings around Individual Education Plans, the road map to support a child’s learning. Mediators with deep knowledge and training in special education law facilitate these meetings.

From left, Ricki Jo Scott, former SFUSD Program Administrator for ADR and Professional Development; Mildred D. Browne, SFUSD and Educational Consultant, Ascendancy Solutions; and Carole Conn, ADR Director, the Bar Association of San Francisco

When learning assessments and education plans have not been implemented as expected or when a limitation of resources has created an interruption in services, misunderstandings and mistrust can develop. This story is one example where conflict between those invested in a child’s learning disrupts a child’s progress. A new approach to resolving conflict could make a difference. This was the hunch and innovative thinking of a retired judge and the former assistant superintendent of special education at San Francisco Unified School District (SFUSD), when they contacted the Bar Association of San Francisco’s (BASF) Mediation Services Program to discuss.

Beginning in the fall of 2014, and under the initial leadership of retired San Francisco Judge Patrick Mahoney and former SFUSD assistant superintendent Dr. Elizabeth Blanco, representatives from BASF’s Mediation Services Program and

key personnel at the SFUSD’s special education department started a conversation about bringing Alternative Dispute Resolution (ADR) methods into the schools.

Of the spectrum of conflict resolution approaches offered at the district, the more serious outcomes can include a filing by the parent or child guardian with the California Department of Education (CDE) or litigation to hold a Due Process hearing where an impartial hearing officer acts as a judge and decides the case. In late 2015, a pilot program was launched to add another path to conflict resolution: In partnership with BASF as an outside provider of resolution services, SFUSD piloted the use of ADR. The program’s goals were to resolve complaints and foster better communication overall for long-lasting outcomes in the parent-teacher-school district relationship. The project is now going into its third year of operation having attained

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 37

successful outcomes: The number of complaints filed with CDE has dropped by 44 percent, and the program has received over 100 referrals for services.

Under state funding for the next two years, SFUSD, family support groups, Support for Families of Children with Disabilities and BASF have developed an ADR model for conflict prevention and de-escalation that incorporates communication strategies sessions for district personnel and two-hour collaborative conferences, facilitated by BASF’s panel of certified mediators. This year, the program expanded to offer facilitated meetings around Individual Education Plans, the road map to support a child’s learning.

Mediators with deep knowledge and training in special education law facilitate these meetings.

The success and innovative model of the program has garnered state and national attention. For two consecutive years, BASF and SFUSD program colleagues have presented at the Special Education Local Plan Area Conference, an annual conference of special education educators, professionals and administrators. This past year, the program was invited to present at the national Center for Appropriate Dispute Resolution in Special Education (CADRE) conference, with great interest in the approaches and partnership.

What distinguishes the BASF-SFUSD program from other dispute resolution methods used in special education is the provision of services through a neutral, outside, nonprofit provider of mediation services.

With the SFUSD 2025 vision “to provide every student quality instruction and equitable support in order to thrive in the 21st century” in mind, the BASF-SFUSD partnership strives for the same. Clear understandings and trusted relationships are important in any child’s learning, but especially for children with learning differences and special needs.

38 FALL 2018

Clear understandings and trusted relationships are important in any child’s learning, but especially for children with learning differences and special needs.

ADR, and mediation in particular, is highly recommended when relationships will continue for many years into the future, like in the school setting, where families and the school district need to work well together over the course of a student’s academic journey to ensure their success in school. This pilot project is designed to help achieve greater understanding and partnership with parents who express concerns around their children’s learning, more quickly resolve disputes, and help seed improved relations with families and the school district to bring lasting resolutions.

It is also hoped that the continued success of this partnership and increased use of ADR in the schools will create the benefits of a cooperative forum of problem-solving more widely available.

Carole Conn is the Director of Public Service Programs at the Bar Association of San Francisco. For more information on how to become part of the BASF-SFUSD Mediation Panel, please contact ADR Manager Marilyn King, at mking@sfbar.org or 415-782-8905. Read more about BASF’s Bay Area Mediation Services Program at www.sfbar.org/mediation.

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 39

CIVILITY IN THE WORKPLACE

By Rhea Settles

I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.

—Maya Angelou

40 FALL 2018

A

college dean writes “What the f**k!!!” on a Post-It Note affixed to a document directed at an administrative assistant. An attorney researches and analyzes a case for the lead attorney but then gets excluded from the strategy meeting. In a group of paralegals, one paralegal comments on another paralegal’s hair.

“Look at your hair! It’s so wild!” the paralegal says not once, but several times.

Imagine how you would feel if you were on the receiving end of this conduct in your workplace. Imagine needing to address it but not knowing how, and feeling unsafe if you did. These types of harmful experiences are not uncommon; they occur every day in the workplace. Further, there are few workplace resources available to address this type of conduct. It is often ignored and dismissed by decisionmaking employees (commonly known as managers or leaders). When mistreated employees complain, they can find themselves professionally unsafe, their spirit wounded, and career killed. Their life is diminished.

Getting relief from abusive conduct and mistreatment in the workplace is challenging because often the standard remedies don’t apply. Employees can’t turn to Title VII of the Civil Rights Act; other laws against discrimination, sexual harassment or hostile work environment; the Public Employment Relations Board (PERB); the National Labor

Relations Board (NLRB); union collective bargaining agreements; labor codes; or even their own human resources department. This leaves the employee to suffer in silence or escalate to a workplace conflict war.

A workplace conflict war is an all-out battle between the mistreated employee against the employee doing the mistreating, bystander employees, workplace attorneys, and the employer. To seek relief, the mistreated employee tries to fit the situation into one of the remedy sources listed above and ends up settling for a small monetary sum in exchange for leaving the job and agreeing not to disclose what happened. Meanwhile, the employee abusive conduct and mistreatment issue is never resolved.

Allow me to share a personal example. My brother-in-law, Dana Wallace, worked for a large telecommunications company as a branch manager. From the onset he exceeded

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 41

performance expectations, developed healthy relationships with employees and customers, and was a major contributor to achieving company goals. Later, a new regional manager was assigned and immediately began demeaning employees, especially Dana. Within weeks, the stress from this employee’s abuse caused Dana to develop vasculitis, a chronic and debilitating disease. Although Dana informed the vice president about the employee’s abuse, there was no action and the abuse worsened. Soon Dana’s health declined until he could no longer work. Sadly, as I was writing this article, 56-year-old Dana—who prior to being mistreated in the workplace was employed, his dignity intact, in excellent health, and loving life—died.

To honor Dana’s memory, I’d like to share what my research has shown are the main causes of employee-on-employee mistreatment and some tools and strategies for preventing and addressing this hidden problem.

WHY IS EMPLOYEE ABUSIVE CONDUCT AND MISTREATMENT SO PERVASIVE YET IGNORED? Conflict is natural, so it will always be a part of the workplace.

Conflict simply means a difference of perspective. But when conflict turns adversarial and divisive, it provides an

Getting relief from abusive conduct and mistreatment in the workplace is challenging because often the standard remedies don’t apply. This leaves the employee to suffer in silence or escalate to a workplace conflict war.

42 FALL 2018

opening for some employees to abuse and mistreat other employees. This opening derives from an element within workplace cultures, systems, and structures that gives fodder to the pervasive, abusive employee conduct and normalizes workplace mistreatment.

This element is oppression. Oppression infects many traditional workplace cultures (how and why things are done), workplace systems (how resources are accessed and distributed), and workplace structures (how the work is organized). Here are three common ways oppression shows up in the workplace: RANK-ISM The belief that your rank and position makes you superior to those you oversee, entitling you to subjugate and subordinate those with a less valued rank (Fuller, 2004).

OTHER-ISM The belief that any group or person that is not like you or your group has less value, entitling you or your group members to exclude and marginalize those who are other than you or your group.

AFFINI-ISM The belief that only the people you like should receive access, benefits, opportunities, resources, and support necessary to achieve success, entitling you to hinder those you do not like.

These oppressive elements support employee assumptions, biases, entitlement attitudes, abuse of power, and competition, to name a few. Mistreated employees may feel hopeless. For them, the workplace is the only way to earn money to take care of self and family. But enduring mistreatment comes at significant costs. It makes the mistreated employee professionally unsafe, which causes health issues (e.g. high-blood pressure, depression) and feeds ongoing conflict wars. As in any war, win or lose, there are irreversible casualties on both sides.

Remember my brother-in-law Dana. Dana’s employer had absolutely no resources to relieve Dana from the abuse and mistreatment he received from an employee. And without relief, his health declined. Consequently he died.

I discovered that often workplace issues are addressed only when they happen to a valued employee, escalate to physical violence, fall significantly under the substantive elements of the law or receive national attention. By that time, it is too late.

This is precisely why decision-making employees must willfully commit to addressing and eliminating employee abusive conduct and mistreatment and to providing relief for those who experience it. Otherwise, as A. Philip Randolph stated, “If you are comfortable with my oppression then you are my oppressor.”

Civility is being mindful of what is done, said, written; and decisions are made to cause no harm.

HOW TO STOP EMPLOYEE ABUSIVE CONDUCT AND MISTREATMENT The way to transform workplace environments into healthy spaces is to teach employees what civility is and how to practice it. Not the kind of civility that calls for people to be nice while still maintaining the attitudes, cultures, structures, and systems that support mistreatment. Instead, what is needed is twenty-first century civility that requires intentionally agreeing on how to engage with each other and share space and resources without causing harm.

In June 2017, the Equal Employment Opportunity Commission (EEOC), the federal agency charged with addressing employment discrimination and harassment claims, produced a report on workplace harassment. The report revealed gaps in how harassment is addressed and defined in the workplace. It found inadequate prevention programs and the need to teach and train employees, particularly those in management roles, on what civility is and how to model and practice it in the workplace.

First, to be committed to creating healthy workplaces, it’s essential to embrace the twenty-first century civility definition (Settles, 2003) that is central to this evolutionary movement: Civility is being mindful of what is done, said, written; and decisions are made to cause no harm.

Second, decision-making employees must recognize that the options for offering relief to mistreated employees are lacking or, in most workplaces, non-existent.

Decision-making employees must commit to establishing proactive, programs to end employee abusive conduct and mistreatment. This occurs by stopping employee abusive conduct and mistreatment before it starts, giving employees the resources to learn civility and its impact on healthy and safe engagements in the workplace, and giving binding relief from employee abusive conduct and mistreatment— without retaliation.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 43

Workplaces interested in and committed to healthy workplaces must embrace: • Civility as a core value for all mission, vision, and value statements • Civility training for all employees, face-to-face, not online; made part of new hire onboarding • Civility Learning Labs: On-going, face-to-face, short courses on topics such as biases, assumptions, privilege, rank-ism, other-ism, and affini-ism • Employee Alternative Dispute Resolution and Conduct Program, available to all employees, including facilitated civility conversations, civility mediation (binding agreements on civility engagements), and individualized professional safety and civility coaching Third, decision-making employees must recognize that workplace culture transformation starts with face-to-face communication, facilitated by a non-employee who is neutral to the workplace. When an issue arises, a non-employee provider offers confidentiality, tools, and resources so every employee—including decision-making employees—can feel safe, trust the process, and receive relief.

Simply, work should not hurt, and all employees should feel professionally safe in the workplace. Employees must embrace that living, learning, and working peacefully requires engaging with others in a way that leaves people better than we found them.

Rhea Settles, Ed.D, M.NCRP, is an educator, liberator, and mediator. She founded The Civility Zone (2003), an agency that teaches and coaches on how to engage with each other, and share space and resources without causing harm. She mediates for the Bar Association of San Francisco, Conflict Intervention Services, and the San Francisco Unified School District, and is clinical faculty of educational leadership and policy at two Bay Area universities. Contact her at www.thecivilityzone.com Notes: 1. Excerpt from Mindful Civility: Taking the War Out of Conflict, Being Grateful for Other, and Learning to Share in Peace (2007), Rhea Settles 2. Somebodies and Nobodies: Overcoming the Abuse of Rank (2004), Robert W. Fuller 3. Report on Harassment in the Workplace (2017), Equal Employment Opportunity Commission

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Preparing for the Inevitable:

BASF’S MANDATORY FEE ARBITRATION PROGRAM Jeremy Sugerman

F

ee disputes are inevitable. It doesn’t matter whether you’re a solo practitioner or a partner at an Am Law 100 firm—if you are charging a fee for your services, you are going to have a client who complains about the bill. Sometimes we just need to do a better job explaining the work performed, and sometimes we need to write off the time. But some disputes are not so easily resolved.

As a member of the Bar Association of San Francisco’s (BASF) Attorney/Client Fee Dispute Executive Committee, I see attorneys unable to utilize Mandatory Fee Arbitration (MFA) because their client refuses to participate. At the same time I see other attorneys fighting to avoid MFA when the client requests it.

This article is addressed to those attorneys who wanted MFA but couldn’t have it, to those attorneys who don’t want MFA but should, and to all those attorneys who have not yet needed to take a position.

46 FALL 2018

BASF'S MANDATORY FEE ARBITRATION The Mandatory Fee Arbitration Act (MFAA, Bus. & Prof.

Code §§ 6200 et seq.), was enacted forty years ago to provide cheaper, faster, and confidential means to resolve attorney-client fee disputes. The MFAA grew out of the need to create a user-friendly, low-barrier process for clients to bring grievances involving fees and costs against their own attorneys. MFA has relatively simple procedures, does not allow attorney’s fee awards to prevailing parties, and allows a client to compel the attorney to participate but not vice versa. But there are significant and often overlooked benefits for attorneys as well. Among other things, MFA provides an out-of-court and therefore private arena for resolving fee disputes, and it allows the award to be nonbinding by default.

The MFAA allows local bar associations to set up a State Bar-approved MFA program. According to the California State Bar’s website, there are currently thirty-five such local programs in California, in addition to the State Bar’s own.

BASF’s is one of the oldest and most respected in the state.

We have a panel of dedicated arbitrators with expertise in all areas of law, including criminal law, who are trained to hear disputes; an executive committee of former arbitrators who review the awards before they are final; and dedicated staff who coordinate all aspects of the process. BASF’s program is also one of the only in California that offers mediation as an option prior to arbitration, at no extra cost.

HOW TO MAKE SURE YOU PRESERVE THE ABILITY TO COMPEL MFA Under the MFAA1, any attorney who wants to pursue a claim against a client for fees (either in court or through arbitration) must first give notice of the client’s right to arbitrate2 and participate in MFA. An attorney can’t compel a client to participate in MFA—unless you have a valid MFA clause in the fee agreement. (More on this below.) MFA

“I have worked as a fee dispute arbitrator since 1984 and serving has taught me a great deal about the profession and about human nature. Reaching an evidencebased, fair resolution for the parties is itself also very gratifying. Serving in the Fee Dispute program benefits both the public and the profession.

It is an excellent way to give back and to fulfill every lawyer’s obligation to provide Pro Bono services.”

-Raymond N S Erlach In practice since 1973

does not involve malpractice claims, and fee arbitrators cannot award damages for malpractice.

Attorneys are required to participate in MFA if the client elects it, so long as the client has not waived the right to demand it (for instance, by instituting an affirmative claim for relief elsewhere, responding to a lawsuit over unpaid fees, delaying the request for MFA after getting notice from the attorney, or missing the applicable statute of limitations).

If the client elects MFA and has not already waived it, any arbitration or litigation the attorney has instituted is then stayed until MFA is concluded.

Arbitrations involving disputes of amounts up to $25,000 are heard by a single arbitrator. A panel of three hears

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 47

disputes over that amount, in which case one panelist is a non-attorney. The MFA is non-binding by default, but can be binding if all parties agree once the dispute arises.

A non-binding award will become final if no party seeks trial de novo (or “contractual arbitration de novo,” as the case may be) within 30 days of the award. An MFA can be confirmed in a court action, but confidentiality ends if either party files an action to confirm the award.

BENEFITS OF MFA If your fee dispute has gotten to the point where you will need a third party to resolve it, MFA under BASF's rules has some significant advantages over litigation or contractual arbitration.

CONFIDENTIALITY AND NO PUBLICITY BASF’s Rules of Procedure provide that the arbitration case file, the papers, exhibits, transcripts, and award are all to remain confidential “except as may be necessary in

“My many years as an arbitrator in the Fee Dispute Arbitration Program have shown me that its participants not only value receiving an objective and independent view of their attorney-client controversy, but the efficacy of its resolution.”

- Andy Wiener Law Office of Andrew R. Wiener

48 FALL 2018

connection with a judicial challenge to, confirmation or enforcement of, the Award....” And by choosing BASF’s MFA, you also decrease the chances that your name or the name of your firm will appear as either plaintiff or defendant on the court’s docket.

EXPERTISE All of our arbitration panelists are experienced in resolving attorney/client fee disputes. BASF provides arbitrator training, and arbitrators generally serve on multiple three-arbitrator panels before acting as a solo arbitrator or being appointed as a panel’s chief arbitrator. Many of the arbitrators have been with the program for a decade or longer, and some arbitrators and Executive Committee members have been with the program since its beginning.

INFORMAL AIRING OF THE DISPUTE An MFA is typically (but not always) an informal event, where the parties get the opportunity to air the dispute.

Your client will see you (or your counsel) explaining the reasons for your bills in a civil and respectful manner. Taking the dispute out of the realm of email and demand letters, while compelling the parties to meet face-to-face, will often reduce the likelihood of de novo litigation.

SPEED The process of resolving a dispute over fees and costs through BASF’s Attorney-Client Fee will be faster than a lawsuit. The typical MFA can take four to nine months from original request to final award.

COST MFA will generally cost the parties far less than litigation or contractual arbitration. First, discovery is permitted only by order of the arbitrator, and is extremely rare. Second, the parties’ out-of-pocket expenses are quite limited.

The filing fees to participate in MFA are currently 5 percent of the amount in dispute when the total disputed amount is $10,000 or less; and 7 percent (up to a maximum of $7,000) when the disputed amount is between $10,000

“A license to practice law in California carries tremendous power to each individual holding one-power to use for good or for ill. Members of the public need and deserve a fair and functional forum within which non-attorneys can bring their fee disputes. Our profession benefits from the fee dispute programs: through the maintenance of good ethical standards, and through cultivating public respect when unhappy former clients can experience personally how the arbitration programs serve to police the profession effectively.”

-Christopher J. Donnelly Leland, Parachini, Steinberg, Matzger & Melnick

and $1 million. When the amount in dispute is $1 million or more, there is an additional $250 surcharge for each $1 million or fraction thereof over the first $1 million in dispute. (For example, a dispute concerning $150,000 will have a filing fee of $7,000; a dispute concerning $4 million will have a filing fee of just $7,750.)

BASF's program routinely receives requests by attorneys to institute MFA, who then find that the process cannot move forward unless the client agrees—that is, unless the fee agreement contains a “valid MFA clause,” meaning a provision specifying that both client and attorney will participate in MFA in the event of a dispute as to fees and costs.

Arbitrators will allocate the filing fees among the parties as part of the award. The parties are not charged for the arbitrators’ time in preparing for the arbitration and are not charged for the arbitrators’ hearing time, unless the hearing takes longer than a day, in which case the parties are required to compensate each arbitrator $500 for each additional half day (split between the parties).

A valid MFA clause might say something like this:

As I mentioned, a client can compel the attorney to participate but not vice versa, unless the parties have a valid MFA clause in the fee agreement.

You should review your or your firm’s fee agreements to see whether they contain a valid MFA clause. Bearing in mind

GETTING TO MFA—THE VALID MFA CLAUSE

“In the event we are unable to resolve a dispute concerning fees, costs, or both under this agreement, the Parties shall submit the dispute to arbitration before the Bar Association of San Francisco (BASF) under Business and Professions Code §§ 6200 et seq., pursuant to the BASF Mandatory Fee Arbitration Rules of Procedure, before resorting to litigation or private arbitration.”3

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 49

that the client is already able to compel MFA, this clause will offer the same option to the attorney.

referral fees, fees paid to class counsel, or other monetary compensation promised for case work performed.

SOMETHING NEW: ATTORNEY/ ATTORNEY FEE DISPUTE RESOLUTION

The Attorney/Attorney program is not governed by the MFAA, but it shares genetic code with BASF’s Attorney/ Client Fee Dispute Program. The procedural rules have significant similarities, BASF staff coordinates the arbitration process, experienced arbitrators chosen from the panel of MFA arbitrators hear the disputes, and the draft award is reviewed by a member of the Executive Committee before it is final. The filing fees associated with Attorney/Attorney Fee Dispute Resolution are similar to those for BASF's MFA. It’s a useful alternative to litigation or to arbitration through one of the commercial providers.

BASF’s Alternative Dispute Resolution Services, in conjunction with the Attorney/Client Fee Dispute Executive Committee, offers a program for the arbitration of fee disputes between attorneys, where no claim is being made by or against a client.

The Attorney/Attorney program can be enlisted, for instance, to decide a dispute between successive attorneys in a contingency fee case where the two attorneys are unable to agree on the first attorney’s quantum meruit portion of the fee collected. Another example might include disputes between attorneys at different firms sharing fees in connection with litigation, where the attorneys disagree as to the entitlement to—or appropriate division of—the fee.

The Attorney/Attorney program can handle disputes over

“The BASF Attorney Client Fee Dispute program provides a forum for the fair and economical resolution of attorney-client fee disputes, both large and small, while also offering an opportunity for experienced ADR neutrals to give back to the community.”

-James R. Madison Arbitrator, Mediator, Referee

50 FALL 2018

WRAPPING UP Litigation over fee disputes has some well-known risks. In addition to the giant time suck and distraction from your practice, fee disputes often trigger malpractice claims, leading to higher insurance premiums and other out-ofpocket costs. Participation in mandatory fee arbitration under BASF's rules can relieve some of those risks. The fee dispute can be addressed in isolation, with confidentiality, at low cost, and before experienced panelists. Be prepared for the inevitable. Consider BASF's fee dispute program as a resource.

Jeremy Sugerman is a partner at Gordon-Creed, Kelley, Holl & Sugerman where he has developed a diverse litigation practice that includes commercial litigation, intellectual property disputes, insurance coverage, and appellate representation.

Sugerman serves as chair of the Bar Association of San Francisco’s Attorney-Client Fee Dispute Executive Committee.

Notes: 1. In case it is not obvious—this is a highly truncated and generalized version of the MFAA law and BASF’s MFA process. DO NOT rely solely on this article when considering or participating in MFA. The MFAA can be found at www.sfbar.org/forms/adr/bus_prof_codes. pdf; the BASF MFA Rules of Procedure can be found at www.sfbar. org/forms/adr/feedisputes_arb_med_rules.pdf.

2. Notice of Client’s Right to Arbitrate can be found here: www.sfbar. org/forms/adr/feedispute_notice_clients_right.pdf.

3. Note that the parties cannot stipulate to binding MFA before the dispute arises. Bus. & Prof. Code § 6204(a).

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 51

Navigating the

Black Hole of California’s Jonathan M. Blute and Timothy J. Halloran

I

Mediation Confidentiality Statutes

n California, mediation is the evidentiary equivalent of a black hole; the participants’ thoughts, acts, and omissions get in—but they can’t get back out. Unfortunately, astrophysicist Neil deGrasse Tyson is not a member of our state bar, so we must navigate the wide-ranging and largely misunderstood effects of engaging in mediation ourselves.

In 1997, seeking to promote the “candid and informal exchange of information”1 between parties attempting to settle their disputes short of trial, the California Legislature enacted Evidence Code §§ 1115-1128, commonly called the “mediation confidentiality statutes.”2 Taken as a whole, these provisions effectively render inadmissible and confidential evidence of almost everything that occurs—or does not occur—at, in preparation for, or even just related to a mediation. (Id. at § 1119(a).)

52 FALL 2018

The legislature purposefully defined “mediation” to be extremely broad. It covers any “process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.” (Cal. Ev. Code § 1115(a).) The only real exceptions are formal Mandatory Settlement Conferences and certain limited family law proceedings. (Id. at § 1117(b).) In other words, anything goes: “there are simply no procedural strictures imposed on mediation other than those the parties wish to adopt.” (Hon. H. Warren Knight (Ret.), et al., Cal. Prac. Guide: Alt. Disp. Res., § 3.28 (Rutter Group 2017.))

The Legislature similarly defined the scope of mediation confidentiality to be extremely broad—it covers everything said, written, or done “for the purpose of, in the course of, or pursuant to” a mediation. (Cal. Ev. Code § 1119(a).)

This includes not only the mediation session itself (including private communications between attorneys and their own clients), but also anything said or done outside of the mediation session—so long as it relates to the mediation.

The California Supreme Court confirmed the Legislature’s broad statutory intent in the seminal opinion of Cassel v. Superior Court (2011) 51 Cal.4th 113. In Cassel, the plaintiff alleged that at an underlying mediation, his lawyers “harass[ed] and coerc[ed] him to accept” an unfavorable settlement after misrepresenting its terms. (Id. at 120.)

However, the trial court excluded in limine evidence of all of the parties’ mediation-related communications—including pre-mediation strategy and preparation discussions. (Cassel, supra, 51 Cal.4th at 121.)

Do attorneys have any ethical obligations to advise their clients about the potentially draconian effects of the mediation confidentiality statutes?

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 53

How might a lawyer limit the ‘practical ‘ risks of engaging in mediation? How can one reduce the risk of a client with ‘settler’s remorse’ filing a malpractice complaint after reaching a mediated solution?

The California Supreme Court ultimately affirmed, holding that in light of the Legislature’s clear intent, “[i]t follows that . . . all discussions conducted in preparation for a mediation, as well as all mediation-related communications that take place during the mediation itself, are protected from disclosure.” (Cassel, supra, 51 Cal.4th at 128; see also, id. at 138 (conc. opn. of Chin, J.) [“This holding will effectively shield an attorney’s actions during mediation, including advising the client, from a malpractice action even if those actions are incompetent or even deceptive.”])

Cassel’s ripple effects are severe. In fact, so long as a dispute settles during a mediation, clients cannot sue their attorneys for almost any error or omission that occurred even prior to or outside of the mediation context. (See, Amis v. Greenberg Traurig (2015) 235 Cal.App.4th 331, 334; id. at 329 [“We sympathize with Amis's assertion that ‘[m]ediation confidentiality was never intended to protect attorneys from malpractice claims’; however . . . that seemingly unintended consequence is for the Legislature, not the courts, to correct.”])

To be clear, clients who sign a settlement agreement at mediation waive the right to claim that any misconduct by their attorneys caused them to settle on less favorable terms than they otherwise would have. Such was the case in Amis, where the client alleged that had he received proper advice

54 FALL 2018

before agreeing to mediate, he never would have mediated in the first place. (Amis, supra, 235 Cal.App.4th at 334.)

The Amis court ruled that even such a theory of liabilityby-inference would put defendant attorneys at a huge disadvantage by turning “mediation confidentiality into a sword by which [the client] could claim he received negligent legal advice during [or before] mediation, while precluding [the defendant attorneys] from rebutting the inference by explaining the context and content of the advice that was actually given.” (Amis, supra, 235 Cal.App.4th at 341.)

There are, of course, some very limited exceptions. The mediating parties themselves can waive the privilege (but only if all such parties agree, and do so expressly). (Cal. Ev. Code § 1122.) A criminal defendant’s Constitutional right to due process permits him to introduce at trial mediationrelated evidence that otherwise would be inadmissible.

(Rinaker v. Superior Court (1998) 62 Cal.App.4th 155, 165.) And if excluding mediation-related evidence would lead to results “either absurd or clearly contrary to legislative intent,” the statutes do not apply. (But good luck proving that: see, e.g., Foxgate Homeowners' Ass'n, Inc. v. Bramalea California, Inc. (2001) 26 Cal.4th 1, 13; Simmons v. Ghaderi (2008) 44 Cal.4th 570, 582-583.)

And the waters have grown even murkier still. Two years after Cassel, a federal trial court for the Central District of California (i.e., a court unbound by California state procedural law) found that due process entitled an insurance company to introduce mediation-related evidence in order to present a full defense to a civil bad faith case. (Milhouse v. Travelers Commercial Ins. Co. (C.D.Cal. 2013) 982 F.Supp.2d 1088, 1108-1109.)

So how does one reconcile all of this confusing—and at times seemingly contradictory—case law? Well, one thing is certainly clear: “there is no ‘attorney malpractice’ exception to mediation confidentiality.” (Cassel, supra, 51 Cal.4th at 133.) Many believe this is an unintended consequence of

the statutory scheme. As noted above, Justice Chin said as much in his Cassel concurrence. (Id. at 138.)

But do attorneys have any ethical obligations to advise their clients about the potentially draconian effects of the mediation confidentiality statutes? More specifically, do we have a duty to warn our clients beforehand that if they engage in mediation and reach a settlement during that session, they can’t sue us for almost anything we may do wrong in their case? That they effectively can’t even rely on the advice we give them during the mediation process?

Some courts think we do. (See, e.g. Wimsatt v. Superior Court (2007) 152 Cal.App.4th 137, 164 [“In light of the harsh and inequitable results of the mediation confidentiality statutes . . . the parties and their attorneys should be warned of the unintended consequences of agreeing to mediate a dispute.”]) The Advisory Committee for the California Rules of Court seems to agree. (See, Advisory Comment to Subdivision (d) of Cal. R. Ct. 3.1380 [“To prevent confusion about the confidentiality of the proceedings, it is important to clearly distinguish between settlement conferences held under this rule and mediations.”])

Cassel’s ripple effects are severe. In fact, so long as a dispute settles during a mediation, clients cannot sue their attorneys for almost any error or omission that occurred even prior to or outside of the mediation context.

And regardless, California Rule of Professional Conduct 3-500 requires an attorney to, among other things, keep the client “reasonably informed about significant developments relating to the employment or representation.” (Describing the ramifications of engaging in mediation as “significant” would be an understatement.)

But whatever our obligations, they are, quite frankly, unenforceable. Again, even if a client asserts a malpractice claim or a State Bar complaint against an attorney for allegedly failing to explain the mediation process adequately beforehand, due process would bar the claim; there’s no way the attorney could defend him- or herself fully without introducing evidence of what happened at the mediation.

(See, Amis, supra, 235 Cal.App.4th at 340.)

Many believe this is unfair to the client. But one could just as convincingly argue it is a necessary protection for the attorney. For instance, what if the attorney did an exemplary job of explaining the mediation confidentiality statutes, but simply waited until the actual mediation began to advise the client? All evidence the attorney would need to defend him- or herself from the client’s malpractice claim would be inadmissible.

Regardless, as many attorneys and clients alike know all too well, just because the law says you’re safe doesn’t mean you won’t get sued anyway. So ethical issues aside, how might a lawyer limit the “practical” risks of engaging in mediation?

How can one reduce the risk of a client with “settler’s remorse” filing a malpractice complaint after reaching a mediated resolution?

Unfortunately, this quagmire has no foolproof solution.

Certainly, the best practice is to develop a form disclosure and waiver that fully and explicitly explains the mediation confidentiality statutes and their effects—including that they insulate the attorney from liability for any malpractice committed during the mediation process. The attorney should then provide that document to the client, discuss it thoroughly and candidly, and have the client execute it before agreeing to mediate.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 55

But to quote Dr. deGrasse Tyson, “inquiry shouldn't stop just because a reasonable explanation has apparently been found.” Indeed, even a thorough and forthright written disclosure won’t eliminate the risk of your client suing you.

And that document itself probably wouldn’t be admissible in a subsequent malpractice case anyway, because you arguably drafted and discussed it with your client “in preparation for” mediation. (Cal. Ev. Code § 1119(b); see, Cassel, supra, 51 Cal.4th at 123-124, 128.)

So what, if anything, should be done about these “unintended” effects of the mediation confidentiality statutes? Our Legislature has been considering this question for years, and its delay in reaching a solution suggests a perfect one doesn’t exist. The California Law Revision Commission’s most recent recommendation is an exception limited to proving or disproving State Bar disciplinary proceedings, legal malpractice claims, and attorney-client fee disputes. (Recommendation: Relationship Between Mediation Confidentiality And Attorney Malpractice And Other Misconduct (Dec. 2017) Cal. Law Revision Com. Rep. (2017), p. 135 [preprint copy].) But there’s no telling whether or when the Legislature might act on it.

While the current situation may not be perfect, the Legislature’s goal of “encouraging candid and informal exchange[s]” of information at mediation is an important one. (Nat. Conf. of Comrs. on U. State Laws, U. Mediation Act, supra, § 2, Reporter's working notes, ¶ 1.) And the widely-adopted reasoning that this “frank exchange is achieved only if the participants know that what is said in the mediation will not be used to their detriment” thereafter is sound. (Id.) Furthermore, the mediation confidentiality

56 FALL 2018

statutes provide attorneys with a powerful defense against meritless “settler’s remorse” malpractice suits.

Only time will tell whether our Legislature determines if the mediation confidentiality statutes extend too far. But for the time being, mediation will continue on as a powerful process that attorneys and clients should approach with eyes wide open.

Jonathan M. Blute is a director at Murphy Pearson Bradley & Feeney in San Francisco. He maintains an active trial and appellate practice focused on representing and defending businesses and professionals against all manner of malpractice, employment, and commercial claims. Blute can be reached at jblute@mpbf.com.

Timothy J. Halloran is the managing partner of Murphy, Pearson, Bradley & Feeney. For over thirty years, he has tried cases throughout California to verdict on a wide range of subjects, including: professional liability, trademark/copyright, business litigation, and personal injury. Halloran can be reached at thalloran@mpbf.com.

Notes: 1. See, Nat. Conf. of Comrs. on U. State Laws, U. Mediation Act (May 2001) § 2, Reporter's working notes, ¶ 1.

2. Many refer to these provisions as the “mediation privilege,” but the statutory scheme doesn’t create a privilege per se—just a set of evidentiary exclusions.

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 57

$

DOES THE ESTATE TAX REALLY AMOUNT TO DOUBLE TAXATION? $ Laurence Blau and Vanessa Zurita-Rufer

R

ep. Jason Chaffetz (R-Utah) once said it was immoral that we have an estate tax. He felt that since we tax people during their lifetimes, their families should not be taxed again after their death.1

But if you look at the interrelationship between the income tax and the wealth transfer tax—along with the fact that capital appreciation is often not taxed—the reality is a lot more complicated.

Let’s analyze Chaffetz’s statement with an example of a fictitious family. Suppose Donald inherits $1 million from his father, Fred. While Fred’s estate would have estate tax consequences,2 Donald can specifically exclude the $1 million from his gross income.3 Thus, there is no double tax in this specific situation.

58 FALL 2018

But is there a double tax after Donald receives his inheritance?

Assuming Donald has properly paid all his income taxes during his lifetime, then on his death, we need to look at the estate tax provisions for the taxability of Donald’s estate.

The value of his taxable estate will be determined by looking at the value of his property at the time of Donald’s death.4 But the estate tax and income tax systems do not tax the same thing. The income tax taxes income and the estate tax taxes property.5 The income tax system does tax the income generated from property and the gain from the disposition of the property, but it does not tax the actual value of the property.6 Therefore, there is no direct double tax in the federal tax system.

But is there an indirect double tax? The question of an indirect double tax depends on what kind of “property” is

held at the person’s death. For example, suppose a person’s property consists solely of money in a bank account and all of that money was earned as wages (taxable income) during the person’s lifetime. Then, that property would be taxed twice, once with an income tax on wages earned during the person’s lifetime and a second time with an estate tax on that property upon the person’s death.

Many years ago, when most people earned their income in the form of wages, that was usually the case when people died. However, the issue of what is property is much more complex today. Wealthy people do not just earn income on wages anymore. In fact, some of the biggest holdings of property in the U.S. are in the form of stocks and real estate.

While people do pay an income tax on their stock dividends and their rental income on real property—and would pay a

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 59

The question of an indirect double tax depends on what kind of “property” is held at the person’s death.

capital gains tax if they directly sold their holdings—they do not pay an income tax on the property itself. There is no federal income tax on property or the appreciation of property until a person disposes of it. This means that the unrealized appreciation of property is not taxed under the federal income tax system during a person’s lifetime unless there is a “triggering event.”

Researchers at the Federal Reserve Board have estimated that the unrealized appreciation from all U.S. assets accounts for a significant portion of the property being transferred on death. It is estimated that this unrealized capital appreciation may range from 32 percent for estates worth between $5 million and $10 million to as much as about 55 percent of the value of estates worth more than $100 million.7 Because that unrealized appreciation is not taxed for income tax purposes under the tax code, we can estimate that around 32-55 percent of the value of all property held by wealthy decedents with estates worth over $5 million is unrealized capital appreciation. Without a triggering event, that wealth is not directly or indirectly taxed during a person’s lifetime.

This could mean that as much as 32-55 percent of the wealth in this country has not been taxed at all during a person’s lifetime.

So even if someone did have an estate over the estate tax exempt amount (currently $11,180,000) and was subject to the estate tax, if these numbers are accurate we can deduce

60 FALL 2018

that indirectly only around 45-68 percent of the value of their property was actually taxed twice and 32-55 percent of the value of their property escaped double taxation.

To be fair, that also means that if someone was subject to the estate tax, then some of their property was taxed twice. Even if we do not have a direct double tax, our system does have an indirect double tax.

If Rep. Chaffetz’s argument was based on the indirect taxation that is imposed on us during life and on death with the income and wealth transfer tax systems, then that argument does make sense. When we earn income to buy the property, we are taxed on that income and then the estate is potentially taxed again on that property when it passes at death. While this is a valid argument, we should go back to our example as it applies to Donald and his family and see how infrequently double taxation actually occurs.

Suppose Donald took that $1 million he inherited and bought a building in New York. Further suppose he wanted more property, so he borrowed money from the equity in the building and bought another building. Over the next few years, he obtained other buildings by borrowing or doing a 1031 exchange.8 This way, Donald would be able to defer capital gains on his lifetime sales of appreciation property by calling these transactions “exchanges” under Section 1031.

Donald could continue these debt purchases and 1031 exchanges for the rest of his life because when he buys a building with borrowed money or does a 1031 exchange, there are no immediate income tax consequences. Further, the value of the buildings will presumably grow over time.

While the rents, dividends, and distributions from the buildings have income tax consequences, he also enjoys favorable deprecation rules, which allow him to pay less income tax on the real estate distributions.

Further, under the tax code, when he dies it is not considered an income tax triggering event. In fact, there will be an income tax death benefit. When Donald passes away, the basis of all his assets steps up to fair market value at the time of his death, meaning no one will ever pay any income tax on the lifetime appreciation of the buildings.9

The economy has changed a lot in the last century. Today, wealthy people do not earn money just from wages. There is a lot of capital appreciation in their assets. Unfortunately, we are still hearing comments either based on the old economy or untrue political statements. While Rep. Chaffetz’s statement had merit many years ago, it is simply not true today.

While Donald’s property is subject to the estate tax, if his estate is going to his spouse and it qualifies for the marital deduction,10 then his estate will not owe any estate tax at the time of his death. Further, when Donald’s spouse inherits the property with a new higher basis, his spouse can start the same cycle he did, but now the basis in the buildings for depreciation purposes is the stepped-up basis (the fair market value on Donald’s date of death11), which helps his spouse defer more income taxes. His spouse can potentially shield $22,360,000 (indexed for inflation) in property with the estate tax exemption.12 If his spouse dies with an estate worth more than the exemption amount, the estate would be subject to the estate tax-but think of all the income tax benefits received during the spouse’s lifetime.

Laurence Blau is a sole practitioner in San Francisco and adjunct professor of law at the University of San Francisco School of Law and UC Hastings College of the Law. Vanessa Zurita-Rufer is a third-year law student at UC Hastings College of the Law. The views expressed here are solely the opinion of the authors and do not reflect their respective schools.

In this example, Donald’s property was not subject to a double taxation. In 2018, if a person has over $11,180,000 (or $22,360,000 for a married couple), there will be some situations where a percentage of their assets will be taxed twice. But is it really immoral to tax this money again? It is a bit simplistic to say that. Most transactions we conduct on a daily basis are taxed multiple times. If we buy something at a store, we pay a sales tax, the owner pays income tax on the profit, maybe a payroll tax and pays a tax to different levels of the government (federal, state, and local governments).

Notes: 1. www.huffingtonpost.com/2015/01/21/wealth-tax_n_6512848.html.

2. See I.R.C. § 2001-2002.

3. See I.R.C. § 102(a), gross income does not include the value of property acquired by gift, devise, or inheritance.

4. See I.R.C. § 2031.

5. Sometimes our “property” is directly “taxed” during our lifetime as States do have a “property tax” on real property. Some jurisdictions also have a tax on the value of your property like a business personal property tax. Thus, there is some form of direct double taxation.

However, here we are focusing on the federal tax system.

6. See I.R.C. §§ 61 and 61(a)(3).

7. See Avery, Grodzicki, and Moore (2013). “Estate vs. Capital Gains Taxation: An Evaluation of Prospective Policies for Taxing Wealth at the Time of Death,” Finance and Economics Discussion Series 201328. Washington: Board of Governors of the Federal Reserve System, www.federalreserve.gov/pubs/feds/2013/201328/201328pap.pdf.

8. See I.R.C. § 1031, no gain or loss is recognized on the exchange of real property held for productive use in a trade or business.

9. See I.R.C. § 1014.

10. See I.R.C. § 2056.

11. See I.R.C. § 1014.

12. See Internal Revenue Bulletin 2018-10.

Further, if a person is not over the estate tax exempt amount, there are no situations where the family will pay a double tax.

In fact, often they are not paying even one full tax because the unrealized capital appreciation is escaping taxation.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 61

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Supportive, knowledgeable staff guide the process from start to finish to make fee disagreements as painless as possible to resolve. Once we have the paperwork from both sides, arbitrators are assigned who are specifically trained in fee dispute arbitration and who are familiar with the area of law related to the underlying case. In the Attorney/Client program, mediation is also available when both sides agree.

BASF staff handles logistics, helps with scheduling and communication with the other side, and all you need to do is submit your documentation and come to the arbitration. Arbitrators work diligently to render the awards in a timely matter after the hearing date.

No one enjoys having a fee dispute or struggling to get paid. Let us help you put the matter behind you.

Call 415-982-1600 or email adr@sfbar.org for assistance.

To get started, forms and procedures may be found here: Attorney/Client Fee Disputes: www.sfbar.org/adr/feedispute.aspx Attorney/Attorney Fee Disputes www.sfbar.org/adr/atty-atty-feedispute.aspx Debi Ham is the Fee Disputes Administrator at the Bar Association of San Francisco.

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The Bay Area Urban Debate League Celebrates the Winners of the

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