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T H E B A R A S S O C I AT I O N O F S A N F R A N C I S C O MARCH 2018
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Federal Pro Bono Project Celebrates Ten Years
LawYaw Joins BASF Member Benefit Lineup
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From left, JDC Board Member Erick Howard, Felicia Jafferies, Patricia Peden, Hon. William Alsup, JDC Board Member A. Marisa Chun, and Dow Patten
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welve federal judges and more than sixty attorneys gathered at the Phillip Burton Federal Building and United States Courthouse in January to celebrate the 10th anniversary of the Justice & Diversity Center’s (JDC) Federal Pro Bono Project. Chief Judge Phyllis J. Hamilton and Judge Edward M. Chen spoke about the longstanding partnership between JDC and the Northern District of California to give low-income litigants access to justice in federal court. Michael Wahlander of Seyfarth Shaw spoke about his
experience volunteering for the project. Since the Federal Pro Bono Project started in 2008, over 100 law firms and solo practitioners have represented over 250 people who had been proceeding pro se. In addition, JDC staff attorneys have helped over 2,200 pro se federal litigants at self-help centers in San Francisco and Oakland. If you'd like to get involved with the Federal Pro Bono Project, please contact Supervising Attorney Manjari Chawla at mchawla@sfbar.org or 415-626-6917.
From left. Hon. Phyllis J. Hamilton and BASF President Malcolm Heinicke
Learn more about the Federal Pro Bono Project at www.sfbar. org/jdc. More photos from the event can be found on page 7. All event photos are posted on Justice & Diversity Center's page on Facebook: www. facebook.com/jdc.probono.
he Bar Association of San Francisco would like to welcome its newest member benefits partner – Lawyaw. Lawyaw is an easy-to-use cloud-based document automation platform built for attorneys and law firms. Lawyaw offers all California Judicial Council Forms as well as all local court forms. The software is regarded as one of the most intelligent, powerful, and intuitive legal document automation platforms in the industry. Lawyaw’s products allow attorneys to create consistently beautiful, error-free legal documents with its Integrated Drafting Environment. Lawyaw is helping San Francisco legal professionals go paperless with a 10% discount for BASF members on its cloud-based document assembly and electronic signature platform. Join over 1,000 California law firms that are reducing errors, increasing profitability, and reducing environmental impact with Lawyaw. For more information on Lawyaw and its products, visit www.lawyaw.com.
JDC and Kirkland & Ellis Commemorate Martin Luther King Jr. Day with Free Legal Clinic for Local Nonprofits
Vlad Kroll
Kirkland & Ellis attorneys working with a San Francisco homeless services provider
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n honor of Martin Luther King Jr. Day, nonprofits nationwide joined forces to support organizations serving homeless people. JDC’s Community Organization Representation Project (CORP) was proud to participate with MEMBERS IN THE NEWS PAGE 3
Kirkland & Ellis, holding a free legal clinic on January 17 for two nonprofits working to end homelessness in San Francisco and Marin County. Kirkland attorneys volunteered to give the nonprofits pro bono legal JUSTICE & DIVERSITY CENTER PRO BONO LEGAL SERVICES PAGES 6-7
check-ups, helping to identify legal issues before they become problems, and empowering them with tools and resources to overcome organizational challenges. The clinic was part of a National Day of Service organized ALTERNATIVE DISPUTE RESOLUTION PAGE 10
by JDC and the National Network of Business Law Pro Bono Providers, which coordinated similar clinics in eight cities. JDC thanks Kirkland & Ellis for hosting the San Francisco event, and all its attorneys who volunteered. Special thanks to Vlad Kroll, who led the clinic coordination and volunteer engagement for Kirkland. If you’re a transactional lawyer who would like to volunteer to help nonprofits, learn more about JDC's Community Organization Representation Project (CORP) at www.sfbar.org/ corp or contact CORP Supervising Attorney Jay Lee at jlee@sfbar.org. CORP’s mission is to provide free business law services to nonprofit organizations that directly serve low-income and underserved communities in Northern California.
CALL FOR FAMILY LAW VOLUNTEERS PAGE 5
NEWS FROM THE BAR
Will 50 Cent Lose Bitcoin Millions to Bankruptcy Creditors? for concealment of certain assets stays open until the case is closed. 11 U.S.C. § 772(e)(2)(B). In fact, 50 Cent’s case remains open for certain administrative purposes. The deadline to bring an action for revocation based on fraud is one year after the discharge is entered, which has passed (11 U.S.C. § 727(e) (1)), but the deadline can be retroactively extended for cause if there are demonstrable grounds supporting revocation and the moving party did not know such facts within the time to object to discharge (Fed. R. Bankr. P. 4004(b)).
By Reno F.R. Fernandez III
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ecently, rapper 50 Cent (Curtis Jackson) found about 700 Bitcoin between his virtual couch cushions worth some $7.7 million as of January 24, 2018. These were some of the proceeds of his 2014 album, Animal Ambition. At the time, 50 Cent’s Bitcoin was worth about $400,000. On the day the album came out, 50 Cent took part in an “Ask Me Anything” session on Reddit, where he commented on accepting bitcoin as a way to "stay with times." Now, the rapper reflects upon his good fortune via Instagram, commenting that: " I forgot I did that s***” and “Not Bad for a kid from South Side, I'm so proud of me" alongside an emoji of a sack of money. 50 Cent has much to be proud of, and indeed there is a group likely to agree that the rapper’s good fortune is a result of skill and not luck. This group is comprised of 50 Cent’s creditors that were not paid in full as part of his 2015 bankruptcy case. Specifically, 50 Cent paid approximately $22 million on account of $32.5 million in debt, and the balance was discharged. Creditors will almost certainly be looking at 50 Cent’s Bitcoin with envy and wondering whether they can grab it to satisfy their unpaid claims. 50 Cent filed his bankruptcy peti-
Photo by Alex Const
MacDonald | Fernandez
Rapper 50 Cent
tion on July 13, 2015, in the United States Bankruptcy Court for the District of Connecticut (Case No. 1521233). On August 3, 2015, 50 Cent filed his schedules of assets and liabilities, which were amended several times thereafter. 50 Cent’s schedules do not disclose any interest in Bitcoin. This will likely strike creditors as odd because 50 Cent is on record just a year earlier stating that he was accepting Bitcoin to stay with the times. 50 Cent’s case was filed as a reorganization under Chapter 11 of the Bankruptcy Code. Chapter 11 allows a debtor to propose and confirm a plan of reorganization, allowing the debtor to continue in business but pay less than all of its debt, under certain circumstances. On July 7, 2016, the bankruptcy court confirmed 50 Cent’s plan of reorganization, providing for payment
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of a portion of his debt over time and discharging the rest. In fact, 50 Cent paid all of the payments due under the plan early after settling a malpractice claim against former counsel for about $14.5 million. 50 Cent’s discharge was entered on February 2, 2017. Any Bitcoin received before the case was filed on July 13, 2015, became property of his bankruptcy estate. 11 U.S.C. § 541. Because of special rules that apply to individual debtors (human beings), Bitcoin received thereafter also became property of the estate. 11 U.S.C. § 1115(a)(1). With a plan confirmed and a discharge entered, how can creditors get at 50 Cent’s Bitcoin? At first glance, the prospects look dim. Specifically, Bankruptcy Code Section 1144 provides that an order confirming a plan can be revoked for fraud but only by a motion filed within 180 days after confirmation, which has long since passed in 50 Cent’s case. Also, a confirmed plan for an individual debtor cannot be modified after all plan payments are made. 11 U.S.C. § 1127(e). 50 Cent did make all payments required under the plan. To summarize, a creditor cannot revoke confirmation of 50 Cent’s plan or modify his plan. But there is another route. Discharge of debt in Chapter 11 is dependent upon the rules for discharge under Chapter 7 of the Bankruptcy Code. In particular, Bankruptcy Code Section 727(d) provides for revocation of a discharge in the case of fraud, concealment of assets and certain other scenarios. The deadline to bring an action for revocation of discharge
If the discharge is revoked but 50 Cent still will not liquidate the Bitcoin himself to pay creditors, then creditors may seek to convert the Chapter 11 case to a liquidation under Chapter 7 of the bankruptcy code. 11 U.S.C. § 1112. Ordinarily, a case cannot be converted after all plan payments are made because there is nothing left of the estate to administer; here, however, there is some $7.7 million in Bitcoin left in the estate. If the case is converted, a Chapter 7 bankruptcy trustee would be appointed to liquidate the Bitcoin and distribute the proceeds to creditors. If you followed this game of statutory ping pong, you will see that 50 Cent knew he had Bitcoin some time before bankruptcy but did not disclose it. Accordingly, it appears there are at least some grounds to revoke his discharge and an opportunity to request that his case be converted. On the other hand, 50 Cent is famous, and he did not hide the fact that he held Bitcoin from the press in 2014. If creditors actually knew about 50 Cent’s Bitcoin, then they may be stuck with the status quo. Also, the picture may not be so clear if the Bitcoin is owned by one of 50 Cent’s business entities and not himself personally, in which case he may not have had a duty to make extensive disclosures. Let’s watch and see what happens…. Reno F.R. Fernandez III is a partner of Macdonald Fernandez, and he practices commercial litigation and bankruptcy from offices in San Francisco, Modesto and Calistoga. He is a former chair of BASF’s Commercial Law and Bankruptcy Section.
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March 2018
NEWS FROM THE BAR
BASF Bulletin Board: Our Members and Leader Circle Firms Making Headlines Member Named Arbitration Lawyer of the Year Cedric Chao, the U.S. head of DLA Piper’s International Arbitration practice, was named the 2018 San Francisco Arbitration Lawyer of the CHAO Year by Best Lawyers in America. Best Lawyers recognizes a single lawyer in each practice area and location with a “Lawyer of the Year” award. Chao was chosen based upon peer feedback in the legal community.
an Impact Award at the the 2018 Legal Marketing Technology Conference. They were recognized for their General Data Protection Regulation (GDPR) Readiness Tool.
Former BASF Executive Director Honored Former BASF Executive Director Dru Ramey was honored by Golden Gate University School of Law with its Judith McKelvey Distinguished RAMEY Service Award. Ramey, Dean of GGU School of Law from 2009 to 2012, was recognized for her exemplary service to the law school and for being a strong advocate for women’s issues and equality.
The following BASF members were recognized as Top Cyber/Artificial Intelligence Lawyers for 2018 by The Daily Journal: Craig Carddon, Sheppard Mullin Richter & Hampton; Mark Krotoski, Morgan Lewis & Bockius; and Michael Sobol, Lieff Cabraser Heimann & Bernstein.
Orrick Awarded at Legal Marketing Event Congratulations to BASF Leader Circle Firm Orrick Herrington & Sutcliffe. The firm was honored with
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Latham & Watkins Attorneys Honored for Civil Rights Work BASF members Cameron Clark and Nicole Valco of Latham & Watkins were recently honored by the Lawyers Committee for Civil Rights of the San Francisco Bay Area (LCCR). The two received the Robert G. Sproul Jr. Award for their contributions in supporting LCCR through its work with the GLIDE Unconditional Legal Service Clinic.
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The Daily Journal Names Top Cyber/AI Lawyers
Retreat on the Knoll
March 2018
San Francisco Business Times Recognizes Corporate Counsel
BASF MISSION STATEMENT The Bar Association of San Francisco champions equal access to justice and promotes humanity, excellence, and diversity in the legal profession.
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JDC Board Member David Kelly, General Counsel of the Golden State Warriors and Joshua Stein, General Counsel of Zenefits were both honored with Bay Area Corporate Counsel Awards by the San Francisco Business Times. Presidential Leadership Scholars Class Announced Conor French, General Counsel of Funding Circle was recently named one of the Presidential Leadership Scholars (PLS) 2018 Class. FRENCH PLS serves as a catalyst for a diverse network of leaders brought together to collaborate and make a difference in the world.
We provide legal services to disadvantaged and underserved individuals in San Francisco. We create opportunities for legal service in the community and encourage participation by our members. We advance professional growth and education, and elevate the standards of integrity, honor, and respect in the practice of law. We cultivate diversity and equality in the legal profession, provide a collective voice for public advocacy, and pioneer constructive change in society. EDITORIAL SUBMISSIONS: The BASF Bulletin serves the membership of The Bar Association of San Francisco. Please keep in touch with us by letting us know the news and events that are happening in the legal community. Send submissions to bulletin@sfbar.org.
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POSTMASTER Send address changes to: BASF Bulletin, 301 Battery Street, 3rd Floor San Francisco, CA 94111 BASF does not assume responsibility for statements or expressions of opinion by contributors to this publication.
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NEWS FROM THE BAR
Legal Ethics Corner
Family Law Corner
Harvey Weinstein Does Not Have to Pre-Pay Child Support...For Now
That Retainer, it’s Almost Certainly Refundable
By Ariel Sosna and Sarah Van Voorhis Van Voorhis & Sosna
By Dr. Shawn McCall
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t is impossible to avoid news of the downfall of Harvey Weinstein. His ex-wife, Eve Chilton, cited current events when she recently requested prepayment of Weinstein’s child support obligation. Page Six reported that court pleadings show that Chilton sought to have Weinstein pre-pay his remaining $5 million child support obligation. In the parties’ judgment, Page Six claims that Weinstein agreed to pay $50,000 per year for vacations, $100,000 per year for camps, $500,000 toward college, in addition to monthly payments for the parties’ 15-year-old and 19-yearold daughters. Chilton claims the total amount due is $60 million, of which $5 million is still outstanding, and that Weinstein had recently told her that he could not pay his child support obligation for a year because of all the lawsuits he is facing. Manhattan Supreme Court Justice Michael Katz denied her request, citing Weinstein’s history of full and on-time payments. Had this matter been heard in California, the result would have been the same. While Family Code §4550 et seq. empowers a court to order a parent to make certain advance payments into an interest-bearing account as security to protect against the obligor’s default, the right to have this advance payment in trust is very limited. For example, In re Marriage of Chandler (1997) 60 Cal.App.4th 124, the court determined that unless there is an extraordinary factual finding, setting aside money in trust for college
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payments or other payments where the obligee parent has unfettered access to the funds will not be allowed. In contrast, a trust to hold funds for travel so each parent can have custodial time has been allowed. Wilson v. Shea (2001) 87 CA4th 887. Chilton’s claim that Weinstein said he would not be able to pay is not enough evidence to require a “prepayment.” In California, Chilton might have had more success if she set her sights on a smaller amount. Under Family Code §4560, up to a year’s worth of child support payment could be held in trust, but that amount would be far less than the $5 million she requested. If Weinstein’s legal woes cause him to miss a payment, then Chilton could get another bite at the apple by going after Weinstein for interest on the arrears and other remedies. The good news for Chilton is that child support arrears are not dischargeable in bankruptcy! Sarah Van Voorhis and Ariel Sosna, both Certified Family Law Specialists, are founding partners of Van Voorhis & Sosna. Follow them on Twitter at @VanVoorhisSosna.
Scholarship Recipients Continue to See Success in Bay Area Legal Community
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Shawn McCall has been and continues to be a forensic psychologist, and he is pursuing a legal career to develop a deeper understanding of the law. He is currently a second-year law student at Golden Gate University School of Law.
The 2018 Bay Area Minority Law Student Scholarship Application is now available.
Deadline to apply: April 20, 2018
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heck out these updates from two recipients of the Justice & Diversity Center's Bay Area Minority Law Student Scholarship: 2013 recipient Angelo Villareal recently accepted a position with the Marin County Public Defender's Office. Prior to accepting this position Angelo, a 2016 graduate of UC Hastings College of the Law, was a Tax Associate at Andersen Tax. 2015 recipient Angela Breining was selected as a 2018 Employee Justice Summer Clerkship fellowship award recipient by the Foundation for Advocacy Inclusion & Resources (FAIR). FAIR is the nonprofit foundation of the California Employment Lawyers Association (CELA). Angela, currently attending UC Davis School of Law, is one of only 15 students in the State of California selected for this honor.
s I progress through law school, I’m thinking about practicing and getting paid. The notion of a retainer payment is great because it mitigates the risk of getting stiffed or having to chase down money. However, sometimes business concludes before earning all the retainer monies: maybe by settlement; maybe the client changed their mind; or maybe the attorney gets fired. California Rules of Professional Conduct, Rule 3-700(D)(2) says that attorneys can’t keep money that they haven’t earned at the end of employment. One might be tempted to say the retainer was ‘nonrefundable’ and keep the money anyway. However, the court will examine the intent and functions of monies, not how they are labeled. In re Montgomery Drilling Co. (1990) 121 B.R. 32, 37-8. T & R Foods v. Rose (1996) 47 Cal.App.4th Supp. 1, 7 enumerates three different types of retainers, one of which is to ensure the attorney’s availability, and the other two are payments for future work that are then drawn down as work is completed. The first one, called a “true” or “classic” retainer, is a payment to ensure that an attorney will be available, and reflects consideration for the attorney declining other work that would prevent them from performing if required. A true retainer is earned whether or not any work was done and is essentially an option contract. Banning Ranch Conservancy v. Superior Court (2011) 193 Cal.App.4th 903, 917. The second type is a “security retainer” whereby the client main-
tains ownership of the funds until the attorney works and earns the fee. The third is an “advanced payment” wherein the client advances funds for some or all of the expected work and ownership of the funds is intended to transfer to the attorney at the time of payment; however, under Rule 3-700(D)(2), the retainer funds must retain an ownership identity with the client until earned. Most frequently, the client agrees to a security or an advanced payment retainer where payment for services is drawn from the monies held in trust. Here’s the kicker—only the true retainer is non-refundable. Unearned funds from either a security or advanced payment retainer must be refunded at the end of the work. Two ways to show that a retainer is non-refundable are (1) written informed consent by the client and (2) appropriate billing records. The consent should set forth distinct payment structures, one for the attorney’s availability and one for the services rendered. The bills should show that the non-refundable retainer was solely for ensuring availability and was never drawn down for completed work. There is no connection at all between a classic retainer and fees that the client incurs. In re Caesars Entertainment Operating Co. (2015) 561 B.R. 420, 437. Any completed work should be billed in a separate manner.
Angela Breining and Angelo Villareal
Visit jdc.sfbar.org to make a gift to the scholarship program. If you would like more information on sponsoring a scholarship or contributing to our scholarship program, email Development Director Steve Love at slove@sfbar.org.
WWW.SFBAR.ORG/SCHOLARSHIPS March 2018
NEWS FROM THE BAR
Paralegal Corner
Navigating the Complex World of Medical Liens
By Alexandra Brilliant and Fabrice Vincent, Lieff Cabraser Heimann & Bernstein
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fter months of hard work, you find out your client’s injury case has settled. You feel a huge sense of relief. Finally, the work is done and it will be smooth sailing from here on out. That is, until you get an email from your attorney, asking you to find out if there are any medical liens. Liens - what are they? How do I figure out if this client has any? Whom do I need to contact? Don’t panic; we have all been here before. When you file a personal injury lawsuit for your client, you are claiming that the third party is responsible for some or all of your client’s medical care. While most of us believe that our health insurance providers are responsible for paying for medical care, that is not always the case. Now it gets complicated. If your client was injured by a third party, and your client’s insurance company pays for your client’s medical care, your client’s insurance company can now also have a claim against the third party, just like your client does. Then, once your client (the injured party) settles their claim(s) with the third party, things get a little tricky because your client’s insurance company’s claim now shifts back to your client. This shift occurs when your client receives compensation for injuries that your client’s insurance company paid for. Hold on … How does that happen? Most health care plans - whether private, state or federal - have a right to a reimbursement claim or lien (i.e., “subrogation”) against any settlement
your client receives if the client’s plan pays for the client’s medical care. In other words, your client, as the insured, agrees to reimburse their insurance company when they sign up for coverage. The recovery rights are outlined in your client’s plan policy; however, most people do not realize this, since it is in the “fine print.” In some cases, such as when Medicare is used to pay for medical services, the government has an automatic lien for reimbursement from the proceeds of a personal injury lawsuit or out-of-court settlement. The topic of medical liens is vast. If you would like to learn more about private medical liens and how to navigate this complex world, please join BASF’s Paralegal Section on April 25 for a CLE presentation, Navigating the Complex World of Medical Liens. Register at www.sfbar.org/calendar. Here are a few topics that will be discussed: • What information you need from your client (policy documents, insurance cards, etc.) • Explaining to your client what a lien is and how it works • Composing letters to your client’s insurance company (state statutes, specific documents to request, etc.) • Reviewing/auditing itemized statements and other plan documents • Negotiating lien amounts • Drafting payment letters and issuing payment • Third-party lien resolution services • Private lien caps and percentage of total recovery Alexandra Brilliant is a paralegal at Lieff Cabraser Heimann & Bernstein and is BASF’s Paralegal Section treasurer. Fabrice Vincent is a partner at Lieff Cabraser Heimann & Bernstein.
We work closely with accountants, appraisers, psychologists and economists to ensure a comprehensive approach. Because we limit our practice, we are especially prepared to handle complex matters. Also available to serve as co-counsel or in an advisory capacity. Call us if a valued client needs Family Law advice.
WHAT YOU NEED TO K WHAT YOU NEED TO KNOW ABOUT ABOUT REPRESENTINGFAMILY LOW-INCOME LAW FAMILY LAW CLIENTS
Pe wh
$1,400
80%
Average monthly income for a family of three (parent with two children) among JDC clients
sou 1,2 mo
Percentage of California family law litigants who don’t have counsel— It’s not unusual for both sides to be unrepresented
ABOUT JDC’S FAMILY LAW PROJECT
Want to make a difference in the life of a child? Are you looking for work that really touches people’s lives, in which a family’s core relationships are at stake?
360
Number of custody/visitation filings in San Francisco, where at least one party sought&a Diversity fee waiver. Among the approximately 1,200 filings per representation year, at least The Justice Center (JDC) provides much-needed pro bono one party people had a and monthly income of $1,200 orfor less sought a Project, fee waiver to low-income families. By volunteering theand Family Law youin 30% of the cases.
can stabilize children’s lives, and ensure sustenance for individuals and children, while gaining valuable motion drafting and oral argument skills. Family Law volunteer attorneys assist low-income families with guardianship petitions, marital dissolutions (divorces), childJDC’S custody,FAMILY and support issues. ABOUT LAW PROJECT Want to make a difference in the life of a child? Are you looking for work
that really in which a family’s core for relationships Ê JDC alwaystouches screens people’s cases for lives, eligibility and appropriateness volunteer are at stake? attorneys, and Ê Provides attorney training, supervision, and mentorship, and The Justice & Diversity Center (JDC) provides much-needed pro bono Ê Provides malpractice insurancepeople and families. By volunteering for the representation to low-income
Family Law Project, you can stabilize children’s lives, and ensure sustenance for individuals and children, while gaining valuable motion drafting and oral argument skills. Family Law volunteer attorneys assist low-income families with guardianship petitions, marital dissolutions (divorces), child custody, and support issues.
HOW TO GET INVOLVED
JDC offers a free family law training every month. You can see the schedule at www.sfbar.org/probono-trainings online, or email our volunteer • JDC always screens casesand for register eligibility and appropriateness for volunteer attorneys, and coordinator at probono@sfbar.org • Provides attorney training, supervision, and mentorship, and Provides malpractice insurance After• taking the training, attorneys receive weekly emails with available
volunteer when they have time and a case interests them.
cases and can
HOW TO GET INVOLVED
JDC offers a free family law training every month. You can see the schedule at www.sfbar.org/probono-trainings and register online, or email our volunteer coordinator at probono@sfbar.org. After taking the training, attorneys receive weekly emails with available cases and can volunteer when they have time and a case interests them.
WWW.SFBAR.ORG/JDC WWW.SFBAR.ORG/JDC
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JUSTICE & DIVERSITY CENTER
Volunteer Attorney CJ Kingsley Gives Right to Civil Counsel Staff Attorney Defends Vulnerable Tenants Facing Eviction 36 Years of Service to JDC
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he Justice & Diversity Center (JDC) is honored to recognize the incredible contributions of CJ Kingsley, who has been volunteering with JDC since 1981! In particular, she has been a dedicated volunteer with JDC’s Legal Advice and Referral Clinic (LARC), a free community walk-in clinic that takes place twice a month on Saturdays. At LARC, Kingsley provides brief legal advice to our low-income community members and is often the first to arrive and the last to leave. Throughout her time volunteering for LARC, she has helped countless numbers of clients, including a particularly rewarding experience when she helped a homeless individual navigate the legal system to gain access to their family’s trust. Although the client originally seemed to lack the mental capacity to initiate the process on their own, with Kingsley’s guidance and advice the client was able to figure it out and assert their legal rights. Kingsley notes that while working with low-income clients, some of whom have mental health issues, can be challenging at times, what balances that challenge is seeing clients light up when they realize they have agency over their own lives. Many LARC clients come in feeling powerless but leave knowing that there are positive steps they can take to overcome even their most difficult obstacles.
CJ Kingsley talking to a client at Project Homeless Connect in 2010
Kingsley, who practices estate planning law, was originally born in St. Louis, Missouri and moved to the San Francisco Bay Area in 1971. She enjoys living in the Bay Area and appreciates the progressive culture here. When Kingsley is not working or volunteering, she spends her time building ceramic pieces, playing billiards, camping, reading, and going for walks. To learn more about the Legal Advice and Referral Clinic and how to volunteer, visit www. sfbar.org/probono or email JDC’s volunteer coordinator at probono@sfbar.org.
Volunteer Interpreters Needed in Immigration Cases
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re you fluent in Spanish or other languages and interested in gaining valuable interpretation experience in an immigration law setting? The Justice & Diversity Center invites you to get involved with the longstanding Attorney of the Day Program as a volunteer interpreter. Volunteers spend two to three hours at the San Francisco Immigration Court to interpret during attorneys’ consultations with individuals facing deportation who cannot find or afford their own counsel.
eet Ana Denmark, who has joined the Justice & Diversity Center’s (JDC) Right to Civil Counsel Program (RTCC). Through the RTCC Pilot Program, a partnership between JDC and the City of San Francisco, Denmark represents lowincome tenants facing eviction. Since 2012, JDC has also worked to provide a right to counsel in civil cases involving basic human needs, such as housing, child custody, sustenance, safety and health by training, supervising, and mentoring volunteer attorneys. She has previously worked as a housing attorney for San Francisco’s Eviction Defense Collaborative, Legal Assistance to the Elderly and Bay Area Legal Aid, where she defended the housing rights of low-income, monolingual, disabled and elderly tenants. Denmark is a Bay Area native and has lived in San Francisco since 2002. Outside of work, Ana has a passion for dogs and interior design, having previously founded Skandicrush, a startup deliver-
There are also opportunities for volunteers to interpret for immigrants who are currently fighting their cases in detention. This opportunity would be more flexible, and you would not be required to attend court. For more information, email Roxana Quintero at rquintero@ sfbar.org. To learn more about the Attorney of the Day (AOD) Program, visit www.sfbar.org/ aod or email aod@sfbar.org.
Ana Denmark
ing Scandinavian housewares to designlovers nationwide. She studied economics and criminal justice at San Francisco State University and received her J.D. from Duke University School of Law. To learn more about our efforts to make a Right to Civil Counsel a reality in San Francisco, visit www.sfbar.org/eviction-defense
March 28 Consumer Debt Defense Training JDC’s Consumer Project offers limitedscope and full-scope representation to low-income clients struggling with debt issues. Pro bono opportunities range from brief service clinics to negotiating on behalf of clients and representing them at hearings or even trial. Attorneys must take this training, after having viewed the online training “Consumer Defense: Training for the Non-Expert,” which prepares them to advise low-income clients at JDC’s Consumer Debt Defense and Education Clinic (CDDEC). CDDEC takes place twice a month on a Wednesday evening from 6:00 to 9:00 p.m. Clinic participation is an excellent way to help low-income people deeply impacted by the current economic crisis while learning a relevant area of the law and developing litigation skills. More information about this project and training: www.sfbar.org/probono-trainings
JUSTICE & DIVERSITY CENTER PRO BONO TRAININGS INTRODUCTION TO LANDLORD TENANT LAW
HOUSING NEGOTIATION PROJECT TRAINING
INTRODUCTION TO FAMILY LAW
• Gain excellent litigation experience • Procedures are the same as those involved with business litigation - discovery motions, settlement and trial - on a more manageable level • Represent clients during eviction proceedings • Full-scope representation
• Gain valuable negotiation experience without a large time commitment • Representation limited to settlement conferences only • Provide representation to individuals/families facing eviction • Volunteer shifts are Wednesday/Thursday afternoons, 12:30 - 4:30 p.m.
• Assist individuals or families with children in matters including marital dissolutions, child custody, spousal support, guardianships, conservatorships, and simple probate and estate issues • Opportunities for:
Tuesday, March 20 4:00 - 5:00 p.m. MCLE: 1 Hour
Tuesday, March 20 5:00 - 7:00 p.m. MCLE: 2 Hours
Wednesday, March 21 4:00 - 5:00 p.m. MCLE: 1 Hour
• Full-scope matters - take a case from start to finish • Limited-scope child custody cases
PRE-REGISTER AT WWW.SFBAR.ORG/PROBONO-TRAININGS
Pre-registration is required to attend all trainings. Visit www.sfbar.org/probono-trainings or email probono@sfbar.org to register. Location: BASF, 301 Battery Street, Third Floor, San Francisco (unless otherwise noted). BASF/JDC CLE programs have been approved for Minimum Continuing Legal Education and Legal Specialization credit by the State Bar of California. BASF is a State Bar of California certified provider.
6 BASF Bulletin
March 2018
FEDERAL PRO BONO PROJECT 10 YEAR ANNIVERSARY The U.S. District Court for the Northern District of California and the Justice & Diversity Center thank these law firms and attorneys for their dedication to pro bono service in 2017 Ad Astra Law Group Alston & Bird From left, Rachel Williams and JDC's Manjari Chawla
From left, Avery Masters, Courtney Chin and Daniel Kuo
Anderson & Poole Baker Botts * Barg Coffin Lewis & Trapp Coblentz Patch Duffy & Bass Cohorn Law Covington & Burling Cozen O’Connor Durie Tangri Farella Braun + Martel Fenwick & West * Fish & Richardson Gibson, Dunn & Crutcher *
From left, Jennifer Seraphine, Holly Gaudreau, and Elena Yakubova
From left, Taylor Pfingst, Anna Pham and Rye Murphy
Greenberg Traurig Haight Brown & Bonesteel Jones Day Kasowitz Benson Torres Keker, Van Nest & Peters * Kilpatrick Townsend & Stockton * Latham & Watkins * The Law Office of Steven S. Miyake * The Law Office of Ciarán O’Sullivan Legal Aid at Work Manatt, Phelps & Phillips Maynard Cooper & Gale McCormack & Erlich
From left, Julia Graeser, Michael Deibert and Cecilia Han
From left, Sheila Templeton, Michael Wahlander and Todd Gregorian
McDermott Will & Emery McGuireWoods McKool Smith Hennigan * Morgan, Lewis & Bockius * Morrison & Foerster Munger, Tolles & Olson Newdorf Legal O’Melveny & Myers Orrick, Herrington & Sutcliffe Reed Smith * Rogers Joseph O’Donnell Rosen Bien Galvan & Grunfeld
From left, Adam Kaplan, Hon. Donna Ryu and Dane Shikman
From left, Tiffany Cheung and Hon. Edward M. Chen
Seyfarth Shaw Smith Patten Dentons US Taeva Shefler Transgender Law Center Turner Boyd Tyz Law Group Vinson & Elkins Walkup, Melodia, Kelly & Schoenberger Winston & Strawn *
From left, Michael Melendez, Teri Mae Rutledge and JDC's Kelly Corcoran
March 2018
From left, JDC Board Member A. Marisa Chun and Hon. Richard Seeborg
* Indicates firms/attorneys handling more than one federal pro bono matter
BASF Bulletin
7
Legal Marketing
How to Plan, Design, & Build Websites That Wow Lessons from the Legal Marketing Association By Clayton Dodd Law Offices of Peter N. Brewer
P
rior to 1977, lawyers could not advertise their services or their prices; instead, it was expected that people would find lawyers through referrals or word-of-mouth. That all changed when the United States Supreme Court decided in favor of law firm advertising as an exercise of commercial free speech in Bates v. State Bar of Arizona (1977). Today, law-firm marketing has reached levels of sophistication that rival other industries, even with restrictions and regulations on lawyer advertising from bar associations and state legislatures. One area where this marketing sophistication is most apparent is on law firm websites. Thousands of law firms have modernized their websites, using skilled photography, user-experience principles, and development best practices, to become design-forward engines of business development. On January 11, the Legal Marketing Association – Bay Area Chapter hosted Erika Ritzer, a senior partner at Greenfield Belser, for a presentation about award-winning websites. The program was held at the Bar Association of San Francisco, and was livestreamed to groups in Sacramento and Silicon Valley. In 2017, Erika’s company swept
Schwabe Williamson & Wyat (schwabe.com) was one of three clients of Erica Ritzer's who won an award from the LMA for its website.
the 2017 LMA Your Honors Awards for website design, with three of its law firm clients taking the top prize in the three different website categories. During her presentation, she walked through the case studies of these three clients, providing an in-depth look at the process of revamping and revitalizing a law firm’s web presence. Each firm was of a different size, industry, and geography, and thus had unique challenges — but the process for solving those challenges was the same. From these three case studies, attendees learned about the principles of creating a website worthy of praise. First, before embarking on a website redesign process, it is important for a law firm to get feedback from stakeholders, both inside and outside
the organization. Talk to your clients, talk to your partners, and evaluate what your competitors are doing, to get a sense of your firm’s positioning. To uncover the most credible brand identity for the firm, conduct internal and client interviews —common themes will rise to the top. Your website should clearly communicate the value you provide to your clients, and should be consistent with your firm’s position in the marketplace. Additionally, part of communicating value is stepping outside the realm of basic labels and headers; for example, instead of using basic titles like “About Us” or “Our Attorneys”, use benefitdriven headlines like “Discover Our Top Talent.” Reinforce that value throughout the website, by, for instance, using high-quality photographs of
attorneys that show their personalities, and by being consistent with the tone of copy throughout the website. One great tip from Ritzer is to remember that most people find your website through searching for individual attorney biographies. You should focus on building biography pages and home pages first to establish the tone of the site. Finally, invest in the sustainability of your website by implementing a content management system (CMS) that makes it easy to not only push new content on the site, but also integrates with proposal generation, email, and campaigns. The firms that truly stand-out online are those that implement industryleading design principles, innovative back-end technology, and user-focused elements that communicate the value of the firm. Having a sophisticated and optimized website helps law firms connect with potential clients, and helps further catalyze the modernization of the legal profession.
Clayton Dodds is the director of marketing at the Law Offices of Peter N. Brewer, a Silicon Valley boutique real estate law firm, and the programming chair for the Legal Marketing Association – Bay Area. He writes and speaks on topics of online marketing, law firm operations, analytics, and technology, and can be reached at clayton@brewerfirm.com.
JUDICATE WEST IS PROUD TO OFFER THE SERVICES OF THESE RESPECTED LOCAL NEUTRALS Alan R. Berkowitz, Esq. Sarah F. Burke, Esq. Douglas deVries, Esq. Rachel K. Ehrlich, Esq. Susan G. Feder, Esq. Jeffrey A. Harper, Esq. Hon. Hurl William Johnson, Ret. Mark LeHocky, Esq.
David J. Meadows, Esq. Herman D. Papa, Esq. David L. Perrault, Esq. Mark D. Petersen, Esq. Robert Slattery, Esq. Peter Thompson, Esq. Hon. Michael G. Virga, Ret. Buzz Wiesenfeld, Esq.
• A respected roster of statewide neutrals, including former state and federal judges, skilled attorney mediators and arbitrators. • Well appointed conference rooms designed to maximize comfort and productivity.
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• Case consultants, each with over 15 years experience in helping you select the “right” neutral for your challenging matters. • Dedicated staff of ADR professionals exceeding your every service expectation. • A wide-variety of innovative solutions including: Jury MediationSM, Discovery Mediation, Private Jury Trials, and new Rules for Commercial Arbitration that are accompanied by new Appellate Rules.
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8 BASF Bulletin
March 2018
Legal Marketing
Facebook News Feed Changes Good for Lawyers, Bad for Law Firms By Kevin O'Keefe LexBlog
This article originally appeared on Kevin O'Keefe's blog, Real Lawyers Have Blogs on January 23, 2018
F
acebook’s News Feed changes, as announced in a Facebook post by its CEO, Mark Zuckerberg are good for lawyers and bad for law firms. Legal bloggers should take note as your blog posts lead to engagement, relationships and a stronger reputation when they “move” socially across Facebook and you have built a stronger reputation by networking on Facebook. Per Zuckerberg: …[R]ecently we’ve gotten feedback from our community that public content — posts from businesses, brands and media — is crowding out the personal moments that lead us to connect more with each other. The change, already being implemented: I’m changing the goal I give our product teams from focusing on helping you find relevant content to helping you have more meaningful social interactions. We started making changes in this direction last year, but it will take months for this new focus
to make its way through all our products. The first changes you’ll see will be in News Feed, where you can expect to see more from your friends, family and groups.
What can you expect in your News Feed? Again from Zuckerberg: …[L]ess public content like posts from businesses, brands, and media. And the public content you see more will be held to the same standard — it should encourage meaningful interactions between people.
The Facebook pages run by law firms, most of which are not getting seen anyway, will be seen even less. Articles and announcements from such law firm Facebook pages are unlikely to even get seen in the News Feed of people who have “liked” the law firm’s Facebook page.
The change is good for lawyers who are Facebook friends and engage with industry leaders, business colleagues, clients, referral sources, bloggers and reporters, in addition to family and personal friends. Why? Because Zuckerberg expects the time you spend on Facebook to be more valuable and more meaningful when there is more engagement with your personal Facebook connections. At its best, Facebook has always been about personal connections. By focusing on bringing people closer together — whether it’s with family and friends, or around important moments in the world — we can help make sure that Facebook is time well spent. This evening, I skimmed through the first twenty items in my Facebook News Feed. All, but one, were
from business colleagues – mostly lawyers, one personal friend and one New York Times reporter with whom I am a Facebook friend. Though some of these Facebook friends were sharing personal items, most were sharing business or legal commentary. Facebook will no longer be an option for lawyers. Privacy and ethical hang-ups are not legitimate concerns. They merely reflect ignorance or an unwillingness to adapt to the change in which people network. The Facebook posts in my News Feed tonight included posts from one of the leading media/First Amendment lawyers in the country, a former large state bar president and a leading privacy and data security lawyer. My Facebook friends who are lawyers offer value to me and others, they’re not promoting themselves nor chasing down clients. Business development for lawyers, offline or on the Internet, is all about networking to build relationships and to build a name. Facebook, at its best, is all about such social interaction, making it perfect business development. Perfect though for individual lawyers doing the networking, not so much for law firms trying to promote the firm and its lawyers. Kevin O'Keefe is the CEO and Founder of Seattle based LexBlog, Inc. which is building the world's largest and most comprehensive legal news and information network by drawing on the wealth of contributions from legal bloggers worldwide.
The 40th Annual UCLA/CEB
ESTATE PLANNING INSTITUTE Manhattan Beach April 20 & 21, 2018
Join the Best; Get the Latest! Join your colleagues and a faculty of highly regarded trust and estate practitioners to discuss: • Federal tax developments
• Engagement letters • Planning in anticipation of litigation • Planning for digital death: post-mortem passwords, profiles and posts $925 (25% off with CEB CLE Passport) 12 hours MCLE Credit • Specialization: Estate Planning, Trust & Probate; Taxation Law Manhattan Beach Marriott Friday Apr 20 • 8:45am – 5:15pm Saturday Apr 21 • 8:00am – 2:15pm
• Clients with diminished capacity • Decanting trusts • Directed trusts • California developments
Reserve your spot today. % 1-800-232-3444 OFF with CEB CLE
25
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ceb.com/epi-2018 Mention priority code 5606Z
• Planning for married couples in a post-tax world • Avoiding the knot: estate and tax planning for unmarried couples
Charles D. (“Skip”) Fox IV, head of McGuireWoods LLP’s Private Wealth Services Industry Group, will speak on federal tax developments. 5606Z
Priority code 5606Z
March 2018
BASF Bulletin
9
News from the Bar
JDC Co-Sponsors Stow Lake Stampede, Raising Awareness for Immigration Programs
T
he Justice & Diversity Center (JDC) is honored to be a sponsor of the 2018 Stow Lake Stampede. JDC is excited to partner with the Impala Racing Team and invites the entire legal community to join us for a day of fun and competition. JDC staff will be at the race to raise awareness for the Immigrant Legal Defense Program, providing much needed access to justice for low-income and unrepresented immigrants facing deportation. Last year, nearly 600 runners joined this race. The course is mostly flat, in
the scenic area of Golden Gate Park that begins near the Conservatory of Flowers, winds along JFK Drive, circles Stow Lake and returns on JFK Drive. Following the 5K, there will be a “Kids’ Mile” race for children 12 and under. Be sure to join JDC at this USA Track & Field sanctioned event by registering with code “BASF”! This year, 5% of all after-cost proceeds will be donated to the Impala team charity, Girls On The Run, which empowers pre-teen girls to make positive choices with a focus on running the 5K distance.
Sunday, April 29, 2018 5K begins at 8:30 a.m.
MEDIATION THAT WON’T BREAK THE BANK THE BAR ASSOCIATION of SAN FRANCISCO
BAY AREA MEDIATION SERVICES Offers Experienced and Affordable Mediators Do you have cases ripe for mediation? Below you will find a selection of some of BASF’s Mediation Services Panelists and their areas of expertise. BASF mediators can assist with almost any type of dispute, whether for a few hours or several days. Fred Carr: Maritime, Personal Injury, Wrongful Death, UIM, Property Damage, Product Liability, Premises Liability, Construction, Real Estate, Contract, Employment Law and Insurance Matters
Susan Joan Davidson: Labor and Employment, Housing (Landlord-Tenant, HOA/TIC/Condo Disputes), Real Estate, Construction, Personal Injury, Estate Planning, Disability, Elder Law Bill Helvestine: Business Disputes, Breach of Contract and Fraud, Unfair Competition Law (UCL), ERISA, Antitrust, Employment and Discrimination Law, Landlord/Tenant, Health Care Disputes, Class Actions
Kid’s Mile begins at 9:30 a.m. Location: Golden Gate Park, Peacock Meadow 240 John F Kennedy Drive San Francisco Use code “BASF” to represent our efforts towards justice and diversity!
Tonya Saheli: 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: 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
Register now: www.impalaracingteam.org/stampede5k.html Bring your running shoes, your family, and your commitment to justice to the Stow Lake Stampede!
10 BASF Bulletin
Visit www.sfbar.org/mediation to search for a mediator by practice area or location, read mediator bios and find out more about the service. Call 415-782-8905 for more information.
March 2018
NEWS FROM THE BAR
Legal Ethics Corner
Risk Management Tip: Understanding Duties to Third Parties, Part 3
Illegal Conduct is Not Constitutionally Protected Business & Professions Code § 6068(a) imposes a duty on attorneys to “support the Constitution and laws of the United States and of this state.” It has long been the case that attorneys convicted of crimes, even those unrelated to the practice of law, can be disciplined or disbarred for failing to respect the law. An attorney who engages in criminal activity, whether or not prosecuted as a crime, may not have expeditious dismissal of third party claims. In Flatley v. Mauro (2006) 39 Cal.4th 299 a celebrity dance impresario was threatened by an attorney asserting
Flatley had raped his client. The attorney threatened to “go public” if a large settlement was not paid within a short amount of time. Flatley sued the attorney for civil extortion. The attorney moved to strike under C.C.P. § 425.16, California’s anti-Strategic Lawsuit Against Public Participation statMichael Flatley ute, which permits prompt dismissal of third party claims against attorneys. The attorney asserted his conduct was constitutionally protected petitioning activity covered by the litigation privilege as a pre-litigation demand. The Photo by Beaumain
By Jennifer A. Becker Long & Levit
attorney did not, however, challenge the characterization of this conduct as extortion. The Supreme Court reasoned that an attorney whose communicative conduct is illegal, even in litigation, cannot claim the conduct is constitutionally protected activity. Id. at 609, 619. The Flatley court did not resolve whether, at a later stage of the proceeding, the attorney could claim the litigation privilege. Flatley represents an extreme circumstance where a defendant was subject to third party liability because actions
taken in the name of advocacy constituted extortion. Illegal communications are not constitutionally protected petitioning activity subject to an expeditious resolution under C.C.P. § 425.16. Next month, we will discuss whether the litigation privilege protects communications not subject to a motion to strike as constitutionally protected conduct.
Jennifer Becker is certified by the State Bar of California, Board of Legal Specialization in Legal Malpractice, and is Chair of BASF’s Legal Malpractice Section. She is a partner at Long & Levit and the Editor-in-Chief of Long & Levit’s Lawyers and Judge’s Blog, www.longlevit. com/blog, which is searchable by topic and case name.
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• Financial aid packages available • Expert full-time faculty members • Full-time and part-time options • Up to 12 JD transfer credits accepted upon approval
LEARN MORE usfca.edu/law/tax/interest
NEED HELP WITH A LEGAL ETHICS ISSUE? Talk to a member of BASF’s Legal Ethics Committee. Learn how: www.sfbar.org/legalethics
March 2018
BASF Bulletin 11