Summer 2017 San Francisco Attorney magazine by The Bar Association of San Francisco

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 / S u m m e r 2 0 1 7

START-UP REPORT

INCUBATOR GROWS FIRST CROP OF COMMUNITY LAW PRACTICES

SAN FRANCISCO S T O R Y

F E A T U R E S

photo by Jim Block

photo by Getty Images

C O V E R

Incubator mentors and participants

COMMUNITY LAW PRACTICE INCUBATOR Solo—Never Alone Hamid Yazdan Panah

INCUBATOR PROFILE Nick Goldman

INCUBATOR PROFILE Jubilee Menzies

INCUBATOR PROFILE Christina Sava

INCUBATOR PROFILE Jason Yee

2 SUMMER 2017

People at the San Francisco International Airport, protesting President Trump’s travel ban

FORTY YEARS OF JDC/VLSP VLSP’s Second Decade: 1987–1996 Teresa Lynn Friend

Fighting Power with Knowledge: Lawyers Standing Up to Injustice in the Wake of Trump’s Travel Ban Leslie A. Gordon

So Many Seats to Fill: The Future of the Federal Judiciar y James Marion

ATTORNEY A Publication of The Bar A ssociation of San Francisco

F E A T U R E S

(continued)

F E A T U R E S

SUMMER 2 017 (continued)

EMPLOYMENT LAW Top Five Things to Consider When Evaluating a Leave of Absence Claim Rose-Ellen Fairgrieve and Dean Royer

$88.2 million

funding shortfall in California for dependency counsel

The High Price of California’s Failure to Fund Dependency Counsel Julie Traun

The New Solo Rose-Ellen Fairgrieve

TRAVEL Four Days in Cuba Kathleen Guthrie Woods

LEGAL ETHICS Avoiding Disqualification with Effective Ethical Screening Daniel W. Hager

C O L U M N S

PRESIDENT’S REPORT Debate Class at Woodside Learning Center Merri A. Baldwin

BARRISTERS CLUB REPORT Meet the (Barristers Club) Parents Adam I. Kaplan

BOARD OF DIRECTORS

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

Design/Art Direction Kerstin Firmin

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

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

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

Jack Hannan Deputy Executive Director, The Bar Association of San Francisco

Mairi McKeever Director/Managing Attorney, Pro Bono Legal Services Program, Justice & Diversity Center

Teresa Friend Director/Managing Attorney, Homeless Advocacy Project, Justice & Diversity Center

www.sfbar.org

Editorial Team Kerstin Firmin, Leslie A. Gordon, John Hammett, Sayre Happich, James Marion, Kathleen Guthrie Woods

E X E C U T I V E S TA F F

A PUBLICATION OF

The Bar Association of San Francisco

SAN FRANCISCO ATTORNEY LETTERS TO THE EDITOR phone: 415-782-8910 / email: editor@sfbar.org ADVERTISING INFORMATION contact Michael Walker, National Advertising Manager. phone: 925-648-3101 / email: mike@rwwcompany.com SUBSCRIPTIONS phone: 415-782-8910 / email: editor@sfbar.org MEMBERSHIP TO THE BAR ASSOCIATION OF SAN FRANCISCO contact Leonard Lun. phone: 415-782-8964 / email: llun@sfbar.org

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

On Our Cover Community Law Practice Incubator

SAN FRANCISCO ATTORNEY (ISSN 0744-9348) Volume 43/Number 2. Published quarterly for $36 per year by The Bar Association of San Francisco, 301 Battery Street, Third Floor, San Francisco, CA 94111. Periodical Postage Paid at San Francisco, CA, and at additional mailing offices. Subscription inquiries and changes of address should be sent to San Francisco Attorney, 301 Battery Street, Third Floor, San Francisco, CA 94111. POSTMASTER: Send address changes to San Francisco Attorney, 301 Battery Street, Third Floor, San Francisco, CA 94111. © Copyright 2017 by The Bar Association of San Francisco. All rights reserved. Reprint Requests: The Copyright Act of 1976 prohibits the reproduction by copy machine or any other means of any portion of this issue except with the permission of the publisher. For permission to photocopy or to use mate rial from San Francisco Attorney magazine, please contact the editor at editor@sfbar.org. Neither BASF nor the editors assume responsibility for statements or expressions of opinion by contributors to this publication.

4 SUMMER 2017

Our cover features pioneers of the Community Law Practice Incubator (CLPI), including funders, staff, and first-year participants, all of whom were instrumental in creating and shaping the incubator program into what it is today. CLPI began as an initiative of 2016 BASF President Michael Tubach, O’Melveny & Myers. photo by Jim Block

Back row, from left, Jason Yee, CLPI participant; Carole Conn, director, Lawyer Referral and Information Service; Chris Kearney, 2013 BASF president and CLPI funder; Michael Tubach, 2016 BASF president and CLPI funder; Front row, from left, Jubilee Menzies, CLPI participant, and Nick Goldman, CLPI participant.

COMMUNITY LAW PRACTICE

I N CU B AT O R S ta r t You r O wn Pra cti c e - S e r v e t he C o m m uni ty

Seeking New Solos! Are you or is someone you know interested in starting a solo practice? Apply now to participate in the Community Law Practice Incubator (CLPI). The Bar Association of San Francisco created CLPI in partnership with its Justice & Diversity Center and Lawyer Referral and Information Service. CLPI aims to serve the professional needs of attorneys and expand access to affordable legal services for low-income persons. CLPI will enroll participants who must stay in the incubator program for six months but are strongly encouraged to continue for a maximum of one year.

CLPI provides participants with substantive training and supervision in four areas of practice in which the community’s unmet need for representation remains high: • • • •

Family Law Landlord-Tenant Bankruptcy Immigration

Questions? Contact Hamid Yazdan Panah, attorney at law and CLPI coordinator, at hpanah@sfbar.org.

Apply at:

www.sfbar.org/clpi

Justice Diversity Center

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 5

PRESIDENT’S REPORT

Debate Class Woodside Learning Center at

Merri A. Baldwin

he students file in, clad in green T-shirts, tan drawstring pants, and plastic sandals. The counselors who accompany the stu dents direct them to take their seats in the classroom, one student to every other chair. The boys seem unimpressed at having strangers in their classroom; some look bored, others unhappy; one or two are having a laugh. First impression: they are all so young, and it is striking to see them here in Juvenile Hall. This was the first day of The Bar Association of San Francisco’s (BASF) and the Justice & Diversity Center’s (JDC) pilot debate workshop at Woodside Learning Center, a school operated by the San Francisco Unified School District within Juvenile Hall. I was there with Mya Whitaker and Alan Santos, two Bay Area Urban Debate League (BAUDL) staff members who were partnering with BASF and JDC volunteers to teach this classroom of students how to From left: Erick Howard, Merri A. Baldwin, Mya Whitaker, Alan Santos, Demetrius Lambrinos, and Sebastian Kaplan 6 SUMMER 2017

PRESIDENT’S REPORT

debate, one of my initiatives as 2017 BASF president. We have four days to teach the students to construct arguments, conduct cross-examination, research and cite evidence in support of their position, and respond to arguments made on the other side. A few logistical difficulties: The students do not have access to the evidence packet we had provided except while in class. They do not have access to pens; pencils are handed out in class and carefully collected at the end. Many of the students have learning disabilities or other issues that qualify them for special education classes. All are subject to uncertainty in terms of whether they make it to class on a particular day; they might be called out for a court hearing, some other meeting, or, in some cases, released from detention or transferred to another program, sometimes out of state. My daily partners in this endeavor, Whitaker and Santos, are young people of color from urban neighborhoods who discovered debate as a way to achieve academic and personal growth. And success. Both of them have earned significant distinction in the rarified world of high school and collegiate debate, most recently for Santos in the form of a full scholarship to St. Mary’s College. They are evangelists for debate and what it can do for young people. In class, we explain what we are going to do this week. Some students have their heads on their desks. No one is too enthusiastic about the idea. Then it suddenly turns: Whitaker and Santos enter into a rapid-fire extemporaneous debate on whether the Raiders should move to Las Vegas. The topic is suggested by one of the counselors; Whitaker and Santos grab it and go. We are off. The topic we assign for the students’ debate is “Resolved: That for public K–12 schools in the United States, the probable cause standard should apply to school searches.” This is a BAUDL topic, and the organization has assembled

an evidence packet to assist students in pulling together their arguments and supporting facts. Arguments on the “pro” side include that the current reasonable suspicion standard unfairly targets students of color, is inherently based on racial and other bias, fosters racial profiling and unfair treatment, and increases the likelihood of student discontent and violence. Possible arguments available to the “con” side focus on the need to preserve safety in schools and the potential impact a requirement of probable cause could have in terms of delay in addressing possible threats to student safety. The topic is compelling in a juvenile detention setting, where every move the students make is supervised and controlled, and where students are subject to constant surveillance. After some initial hesitation, the students start to show some interest. Over the next three days, we teach the students basic skills of argument, research, evidence support, and organization. Volunteer lawyers work directly with the students. Manjari Chawla, supervising attorney for JDC’s Federal Pro Bono Project; Demetrius Lambrinos, Cotchett, Pitre & McCarthy; Erick Howard, Shartsis Friese; Sebastian Kaplan, Fenwick & West; Doris Cheng, Walkup, Melodia, Kelly & Schoenberger; and John Hamasaki, Hamasaki Law, all spend time at Juvenile Hall with Whitaker, Santos, and me working with the young men, getting them ready for or helping to judge Friday’s debate. This is a crash course, and none of us know what to expect at the end of the week. At Thursday’s prep session, one group (the “pro” side) works quietly with the mentor attorneys, highlighting evidence and using colored tabs to divide the evidence packet. The other group is boisterous and loud, laughing at times and arguing, again and again, about guns in school. We do not have time to do any meaningful practice. We just have to hope it all comes together.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 7

PRESIDENT’S REPORT

The Bay Area Urban Debate League’s core mission is to equip those in the most fragile communities with essential debate skills. As representatives of the success of debate in our community, Santos and I are able to share the ear of the youth with critical allies like The Bar Association of San Francisco. Our organization was truly honored to help our community and extend the platform for dialogue to happen. — Mya Whitaker, Bay Area Urban Debate League

On Friday, we arrive early and rearrange the classroom so that the debate teams sit at the front, at tables angled toward each other and facing the audience. The boys come in and, contrary to protocol, we guide the teams to sit at the front tables. The few students who are not participating act as judges, along with BASF volunteers and some of the teachers. Some last minute prep, and we get started. Who knew what to expect? It was great. The boys became animated, especially during the team cross-examination. For the most part, everyone knew their arguments, cited evidence, responded to the other side, and argued their points. Some students were shier than others; some, it turned out, were natural advocates and effective speakers. For us volunteers, it was great fun to watch. One student had not said a word all week, yet anchored the “pro” side. Another volunteered to do an extra speech, since his team was one person short. Some good rhetorical flourishes: “Parents want their kids in school, not in the morgue,” and “If you treat kids like criminals, they will act that way.” Afterwards, the students listened carefully as the judges gave their feedback. No fidgeting, no side conversations. It was very moving to see them at the center of attention in the most positive way, the room full of teachers and counselors who had heard about the program and wanted to catch some of the action. Doris Cheng, BASF treasurer and one 8 SUMMER 2017

of the judges, said, “It was heartening to see an activity in Juvenile Hall that had nothing to do with why they were incarcerated and had everything to do with treating them like any other high schooler possessing hope and promise. If we treat these teenagers like people who have something worthwhile to contribute to others, they will.” One of the teachers emailed us to say she could not stop smiling whenever she thought of that afternoon. Thanks to BAUDL, to all our volunteers, to the wonderful teachers at Woodside who invited us in, Megan Mercurio and Constance Walker, and most of all to the students in Unit 6 who inspired us all. We hope to run more debate programs at Woodside later this year in partnership with BAUDL. If you want to volunteer as a coach or judge, please contact Ann Murphy at amurphy@ sfbar.org or Merri Baldwin at mbaldwin@rjo.com. Merri A. Baldwin is cochair of the Attorney Liability and Conduct Practice Group and a member of the Complex Commercial Litigation Practice Group at Rogers Joseph O’Donnell. She is a State Bar of California board-certified legal specialist in legal malpractice law. She serves as the 2017 president of The Bar Association of San Francisco and its Justice & Diversity Center.

AT T H E CE N

S AR

TE R

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

Thursday, September 28 ST

ICE &

E DIV

The Justice & Diversity Center (JDC) invites your firm to become a sponsor of the San Francisco legal community’s biggest annual fundraising event. Sponsorships provide essential funding for JDC’s mission of advancing fairness and equality through pro bono legal services and diversity educational programs. Sponsors receive recognition at the event, in publications, on our website and on social media. The Gala will be held in the Bently Reserve Banking Hall, with an open bar, live music and a gourmet buffet. Find out more by contacting Steve Love, Director of Donor and Community Engagement, at 415.782.8917 or slove@sfbar.org.

6:00 – 9:00 p.m. Bently Reserve Banking Hall 301 Battery Street, San Francisco

2017 SPONSORS

(as of May 11)

P L AT I N U M

Fenwick & West Orrick, Herrington & Sutcliffe Pillsbury Winthrop Shaw Pittman Foundation Wilson Sonsini Goodrich & Rosati Foundation

BRONZE

ALM Media Seyfarth Shaw Winston & Strawn

PEWTER

AT&T Legal Department Clarence Dyer & Cohen Walkup, Melodia, Kelly & Schoenberger

PEARL

Dolby Laboratories Rosen Bien Galvan & Grunfeld Rust Consultin | Kinsella Media

DIAMOND

Cohorn Law Paoli & Geerhart = 40th anniversary sponsor

www.sfbar.org/Gala THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 9

BARRISTERS CLUB REPORT

MEET THE (BARRISTERS CLUB) PARENTS Adam I. Kaplan

ig surprise: life got a lot busier about three and a half years ago when my twin daughters Kyla and Avery were born. Thankfully, there are loads of all-star parents who work as attorneys at my firm and in the BASF community. They’ve served as role models for my wife and me and imparted much wisdom over the years. I’ve also learned from— and at times kvetched and commiserated with—other parents in the Barristers Club who are juggling young children and busy legal careers. As you’ll see, they are an impressive bunch, so I decided to gather reflections, stories, and advice from as many of them as I could squeeze into these pages. Here is what they had to say. Adam

10 SUMMER 2017

BARRISTERS CLUB REPORT

Evan

Sara

A DAY IN THE LIFE

Evangeline (“Evan”) A. Z. Burbidge

Sara Peters

Lewis & Llewellyn Mother of Win (3½) and Graham (1) and cochair of the Barristers Club Litigation Section

Walkup, Melodia, Kelly & Schoenberger Mother of Asher (3) and twins Emmett and Corben (1) and CLE vice chair of the Barristers Club Litigation Section

We’re a two-lawyer family, meaning efficiency at work and sharing the load is very important. Last week, I was traveling for depositions and had a hearing; this week, my husband started trial. We work to be flexible. That also means compromising and working after the kids are asleep, when needed. So far, routine has proven the most helpful thing for the kids during the week. We have the usual activities we do when we get home from school (such as making dinner together, playing a game, taking a bath) and a set bedtime. That seems to make things easier—at least most of the time.

Reno F. R. Fernandez III Macdonald | Fernandez Father of Harriet Sue (5) and Josephine Anna (2) and past member of the Barristers Club Board of Directors

I like to spend as much time with my kids as possible and still rock as an attorney. The kids are asleep in the morning and awake in the afternoon, so I start my workday at 5:30 a.m. and leave at 4:00 p.m., without fail. There are unexpected benefits; it is very hard for opposing counsel to get the jump on me!

5:00–6:00 a.m.: Nurse the twins repeatedly 6:00–7:30 a.m.: Prepare, bike 7.5 miles to work, get ready at gym 7:30 a.m.–5:00 p.m.: Work (expressing milk every three hours) 5:00–5:45 p.m.: Bike home 5:45–7:00 p.m.: Nurse the twins, briefly play with them, put them to bed 7:00–8:00 p.m.: Prepare dinner, eat dinner, talk to toddler 8:00–9:00 p.m.: Play with toddler, read stories, put him to bed, clean up 9:00 p.m.: Say “Hi” to husband 9:00–10:30 p.m.: Glass of red wine, relax, work a little, prepare for tomorrow 11:00 p.m.–12:00 a.m.: Nurse the twins repeatedly 12:00–5:00 a.m.: Sleep (not enough), with toddler and twins waking up frequently

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 11

BARRISTERS CLUB REPORT

Phyra

Mark

Phyra McCandless government attorney

Mother of Hyonia (5½) and member of the Barristers Club Board of Directors and the Justice & Diversity Center Board of Directors Google Calendar is my friend. I need to have everything on there so I know the schedule and know when I need to do a pickup or we need to ask family. Having local grandparents has been the secret to making sure I can go to attorney or Barristers Club activities. We use calendar invitations with my parents so they know when we may need them. Online/social networks have also been an invaluable resource. In the past, I think people had the wisdom of their neighbors in their “village.” My village has come from lawyer moms on Facebook, the Mission Parents Yahoo group, and the like. I’ve traded so many life hacks through these groups, I’ve lost count.

Sara I look for every possible way to multitask. By biking to work, I fold my workout into my commute. I read the news on my phone apps while nursing. My entertainment consists of podcasts or audio books while doing dishes or brushing my teeth. Most important, I try to remember that contentment is a matter of perspective. Yesterday, geese were flying above me while I biked in Golden Gate Park. Their wings were flashing yellow in the low sunlight. I breathed deeply and told myself I was on vacation. People pay money to go cycling in beautiful places, something I do every day. Whether it’s a daily grind or a luxury is all in my head.

12 SUMMER 2017

Reno It is not possible for me to make every minute with my kids into quality time. Instead, I take them on weekend “dates.” I take them out one at a time to a park, to share ice cream or to do something simple that requires no planning. Because it is just one child and me (and no cell phones, but maybe a printed book), it is pure fun. Afterwards, time at home is more relaxed; I can play with the kids, check my cell phone or do nothing at all without the pressure to be Ward Cleaver all day long.

PARENTING HACKS Adam I’m all about multitasking as well. Most of my exercise consists of running with the kids in the double stroller, rain or shine. This helps everyone, dog included, deal with our little 5:00 a.m. risers. I get extra time with them and my wife gets a chance to work out or catch up on sleep. My pleasure reading is on BART to work. And I make calls while walking the dog.

BARRISTERS CLUB REPORT

KIDS DO (AND SAY) THE DARNDEST THINGS John Hamasaki Hamasaki Law

Father of Omar (2½) and member of the Barristers Club Board of Directors About a month ago, I was getting ready for a hearing in the morning and realized I couldn’t find my keys. I remembered that Omar had been playing with them the night before when we got home. My wife and I frantically tore the house apart looking for the keys as Omar watched on. Finally, he dug down into his toy box and opened the roof of a toy truck and pulled out the keys, smiling. I arrived in court late for the hearing and asked to approach. I explained my morning to the judge, apologized profusely, and said that he had never hidden my keys before. The judge looked at me, laughed, and said “It won’t be the last time.”

John

Sebastian Kaplan Fenwick & West

Father of Zoe (5), Juliette (3), and Naomi (21 months) and past Barristers Club president and current Justice & Diversity Center board member It’s hard to explain to my young kids what I do and why I do it. One morning, when my oldest daughter was four, she asked me: “Are you going to work?” I nodded. “Are you going to make money?” I smiled and nodded again. “It is really hard to make money; you have to do it a lot,” she said sympathetically. “It is hard,” I replied, “but I get to help people when they have disagreements with other people.” I want her to understand that work can be enjoyable and intrinsically valuable, not just lucrative, but that’s a complex lesson for someone not yet in kindergarten.

Mark Conrad

Conrad & Metlitzky Father of Penelope (6) and Colby (4) and past Barristers Club president One morning my daughter snookered me into bringing her to the office, claiming she was too ill for school. The copy machine kept her entertained for about fifteen minutes, but by lunchtime she realized she had made a big and very boring mistake, and she begged me to take her back to her teachers and friends.

Diana

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 13

BARRISTERS CLUB REPORT Reno

BONDING WITH OPPOSING COUNSEL OVER KIDS Diana Kruze

Morrison & Foerster Mother of Dani (4), Hawk (2), and Evie (6 months) and past Barristers Club secretary I always ask opposing counsel if they have children—it’s a great way to learn more about them personally and help foster understanding and empathy during difficult times. When I was pregnant with my third, I was litigating a copyright case against a great guy from Cooley who also has three kids. On breaks during technical witness depositions, I got his advice on everything from the minivan versus SUV debate to the transition from manon-man to zone defense that having three kids entails. After bonding over stories of sick toddlers throwing up on you and the timeless popularity of “Thomas the Train,” compromises somehow come faster during discovery disputes, extensions are more easily given, and, with any luck, your adversary has magically been transformed into a friend.

Evan Once I had opposing counsel show me pictures of his baby in the middle of tough settlement discussions. It was nuts. It completely changed his demeanor.

14 SUMMER 2017

Phyra I got delayed at the Phoenix airport with someone who had been an opposing counsel. We had just left an American Bar Association conference. I was flying alone with my daughter and she was flying with her wife and two kids. It was my first time traveling alone with a child and although we had flown a lot, we weren’t prepared for being stuck for seven hours at the airport. The opposing counsel’s older child played well with Hyonia and the gate agent gave us Wikki Stix, which I learned were the key to keeping kids entertained. After spending some time with the opposing counsel, I felt comfortable with her. This led me to get more involved in that ABA conference and go to her for advice about living with kids in San Francisco.

Adam I’ve had a few cases where relations with opposing counsel were strained and tensions often ran high at depositions and during meet and confers. Talking about the little ones, and the tribulations of sleep deprivation, for example, always lightened the mood. I’ve also had great experiences bonding with clients about our children. When a client in Los Angeles heard my wife and I were expecting twins, he revealed that he’s also a twin father and invited me to meet his family the next time I was in Los Angeles. I did, and we became fast friends. To this day, one of my favorite client outings is taking him, his wife, and his boys out for pizza.

BARRISTERS CLUB REPORT

WORDS OF WISDOM Evan

Mark

I don’t think there’s a “best time” to start a family. From the very beginning, children teach you that you can’t plan everything; some things are simply out of your control. Instead, my advice would be: look for role models at the top. Make sure there are people at the firm whose lives you want to emulate. Do the powerful partners at your firm have kids? A working spouse? Did they take their full maternity/ paternity leave or have they bragged about missing the birth of a child because of trial? Those answers give you important information about the culture of the firm.

Talking about work with my kids has turned out to be a lot of fun, especially as they get older. Kids can give you great insight into your cases—they have a very strong sense of what is fair, and they are usually pretty blunt about calling nonsense.

Sara I advise law students to find a law firm that encourages employees to honor their family commitments. Look for a generous maternity and paternity leave policy, and partners who are actively involved with their own young kids. I’m lucky to be surrounded by genuinely supportive people. Without that, I would not survive.

John Being a great parent requires the same traits as being a great lawyer—time, dedication, patience, and most of all, love. It is hard to share two great loves, but it is possible. And they have to be willing to share you as well. Being a parent has been the greatest experience of my life. It hasn’t always been easy to balance a rewarding career in the law with fatherhood, but the payoff has been extraordinary.

Sebastian I think fathers should be sensitive about gender disparities when talking about kids at work. I’ve noticed that when I take my daughters out in public by myself, I’m treated like a hero; but when my wife does, it’s not noticed. And at work, I can talk about my kids, or not talk about them, without worrying it will raise doubts about my professional abilities. That’s a privilege that, unfortunately, mothers often lack.

Phyra There is no “right” or perfect time to have a kid. Make your own decisions about your career and your family. The time I thought I was ready, it didn’t happen right away, so when it did and I didn’t think I was ready anymore, I just had to go with it. Don’t use your kid as an excuse not to do something you wish you could do. You can make it work.

Adam I couldn’t agree more with these sentiments. I was moderating a panel about balancing life as an attorney and parent when a law student asked this important question: “Is it possible to be a great attorney and a great parent?” Yes, it is! My fellow Barristers Club parent/attorneys prove it every day. Adam I. Kaplan, 2017 Barristers Club president, is a litigator in the San Francisco office of Munger, Tolles & Olson. His practice includes complex commercial litigation, copyright litigation, securities litigation, and internal corporate investigations. He can be reached at adam.kaplan@mto.com.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 15

40 Y O

TER N

T THE CE RS A A E

IC E & DIVE

VLSP’s Second Decade: 1987-1996 “THOSE WERE HEADY TIMES”*

Teresa Lynn Friend The Justice & Diversity Center (JDC), formerly known as the Volunteer Legal Services Program (VLSP), celebrates its fortieth anniversary this year. In recognition of its unwavering dedication to creating positive and lasting change in clients’ lives, the VLSP/ JDC forty-year anniversary will be chronicled in every issue of San Francisco Attorney magazine in 2017. This second installment covers 1987 to 1996.

he second decade of the Volunteer Legal Ser vices Program (VLSP)— from 1987–1996—was an incredibly busy and productive time. It was a time of growth, of pioneering ideas, of meeting the unique challenges that arose during that time, and of widening recog nition of the leadership and vision of VLSP Director Tanya Neiman and the tireless work of countless staff and volunteers.

DYNAMIC DUO With the support and devotion of strong board leaders, the work of VLSP was spearheaded by the dynamic leadership of Drucilla “Dru” Ramey and Tanya Neiman. With Ramey as executive director of BASF and Neiman as executive director of VLSP, the two organizations continued to work hand in hand. Ramey points out that her and Neiman’s “personalities meshed well.” They came from very different backgrounds and had

* Dru Ramey, BASF executive director, 1985–2002 16 SUMMER 2017

different strengths, but between them there was almost nothing they couldn’t accomplish.

PROJECTS TO MEET EMERGING NEEDS Neiman was “constantly full of ideas,” according to Ramey, and what made her unique was her ability to both appreciate the big picture, and look at systemwide issues, while simultaneously being able to concentrate intensely on the details of

This timeline was constructed with quotations from and comments on present and past BASF publications, including San Francisco Attorney and others.

August1987

Pro bono legalization project Responding to community requests, VLSP launches the Legalization Project to “help with the massive legalization program under the Immigration Reform and Control Act of 1986,” signed into law by President Ronald Reagan in November 1986.

1987

June 1988

homeless advocacy project “In response to [the] collective desire of BASF members to ‘do something’ about the problem of homelessness in our community, the Volunteer Legal Services Program has organized the Homeless Advocacy Project (HAP).” VLSP organized and administers HAP in partnership with the Barristers Club. Its central intake system is the Legal Clinic, held every other Thursday in the Cadillac Hotel in San Francisco's Tenderloin.

1988

february 1988

growing services to meet community needs Responding to a growing need for services, a new program is launched, “patterned after VLSP’s successful ‘teaching clinic’ model,” training attorneys without family law experience to help indigent defendants in state-prosecuted child support actions.

August 1988

Establishment of aids panel “VLSP has developed a well-deserved reputation of being responsive to community needs [...] An example of this innovative approach is the creation of the AIDS panel, which VLSP formed with Bay Area Lawyers for Individual Freedom to help expand the services provided to people with AIDS.” THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 17

May 1991

Tanya neiman day San Francisco Mayor Art Agnos proclaims May 20, 1991 Tanya Neiman Day.

august 1991

Summer at the Bar: Establishment of summer diversity receptions Kicking off the season with a summer event that raised $9,000 for VLSP, the Barristers Club hosted a party attended by over 450 people. The Committee on Gay and Lesbian Issues, as well as the Committee on Minority Employment also hosted receptions. Today, more than two decades later, diversity summer receptions are still an annual highlight at BASF/JDC.

1989

1990

1991

August 1989

James P. Preovolos, VLSP volunteer, leaves a legacy of service behind Today, James Preovolos is known to JDC volunteers as the name behind one of JDC's most prestigious annual awards, honoring outstanding service in family law. Preovolos was a longtime BASF member and one of VLSP’s “most active and enthusiastic” volunteers from its inception in 1977, particularly in family law. On August 19, 1989, Preovolos “died in an accident in Bali where he was participating in an archaeological dig.” 18 SUMMER 2017

1992

1993

New projects launched “VLSP is often the only place clients have to turn,” serving “as a societal safety valve, providing critical services for those living on the edge.” New programs and projects launched in the past year include: The Cancer Legal Services Project, the Abused and Neglected Immigrant Foster Children Project, the Consumer Credit and Finance Project, the Immigrant HIV Assistance Project, the Advocacy Clinic for Indigent and At-Risk Children with Disabilities, a Community Economic Development pilot program, and a Low-Income Women’s Clinic.

a situation. Neiman was “an around the clock workaholic,” and the growth of VLSP and the number of projects responsive to emerging needs in the community was impressive. One such emerging need was the massive legalization program in response to the Immigration Reform and Control Act of 1986. VLSP, in conjunction with other community organizations, trained and mobilized hundreds of volunteers to assist indigent immigrant clients with amnesty applications and appeals during the one-year, oncein-a-lifetime opportunity. Another was the formation, in conjunction with Bay Area Lawyers for Individual Freedom (BALIF), of the AIDS Legal Referral Panel, in response to the AIDS epidemic in San Francisco.

THE CREATION OF THE HOMELESS ADVOCACY PROJECT AND HOLISTIC ADVOCACY One of Neiman’s most enduring legacies is the Homeless Advocacy Project (HAP). Founded in 1988, planning for the project was extensive, including gathering information from many perspectives, interviewing people in homeless shelters to determine the most pressing issues, and formulating a model designed to meet the unique needs of individuals and families who were homeless. The original HAP clinics were held at the Cadillac Hotel in the Tenderloin, and volunteer attorneys and advocates formed one-on-one relationships with homeless clients and acted as their ongoing advocates. Legal experts

California Chief Justice Ron George, Dru Ramey, Mayor Willie Brown, and Tanya Neiman in 1997

acted as mentors for the volunteers, provided expert advice, or took on cases. HAP was also the project where Neiman first implemented the innovative “holistic legal services” model, with the hiring of a social worker in 1994. While the service delivery model of HAP has evolved over the years, the essence of HAP has remained consistent: a holistic model, and personal relationships that focus on the whole client and address the underlying issues that gave rise to the presenting legal problems.

THE 1989 EARTHQUAKE Another key example of VLSP’s ability to react to an immediate local crisis was the response to the 1989

Loma Prieta earthquake, which was especially devastating to low-income communities in San Francisco and the greater Bay Area. Among other things, an estimated 4,000 units of lowincome housing were destroyed. This included more than 1,000 single-room occupancy hotel rooms, and these rooms represented the only affordable, if often substandard, option for many of VLSP’s clients. VLSP and BASF responded in several ways. Volunteer attorneys took on appeals from FEMA denials of emergency assistance. In addition, multiple service providers in the community, including HAP, formed the FEMA Working Group. The group evolved into a litigation team in a lawsuit brought by earthquake victims who were frustrated in their attempts to obtain disaster relief. The State Bar of California Board of

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 19

Housing and Urban Development Secretary Jack Kemp, Tanya Neiman, and Secretary of Health and Human Services Dr. Louis Sullivan in 1992, presenting the Homeless Advocacy Project with a Community Service Award

Governors gave special recognition to Neiman and VLSP for “outstanding work in planning and organizing the delivery of legal services to victims of the October 17, 1989, Loma Prieta earthquake.”

THE BIRTH OF JDC’S DIVERSITY PROGRAMS Although BASF’s diversity programs did not officially become a part of JDC until 2013, the genesis of many of the programs occurred during VLSP’s second decade. The first step was the creation of a minority bar committee at BASF, which undertook a comprehensive survey of minority lawyers in San Francisco and eventually developed goals and timetables for minority hiring and retention. BASF also took early leadership roles on gay and lesbian issues and disability rights issues. Furthermore, the Barristers Club played a central role in creating and supporting educational and community programs that continue to this day as part of JDC, including the 20 SUMMER 2017

Mock Trial program and Lawyers in the Schools.

VLSP AS A NATIONAL MODEL

During the second decade, VLSP as an organization, its leadership, and its volunteers were recognized locally, statewide, and nationally for leadership, and as a national model for the innovative provision of legal services. San Francisco Mayor Art Agnos proclaimed October 31, 1988, as “Homeless Advocacy Project Day,” and May 20, 1991, as “Tanya Neiman Day.” In 1992, US Department of Housing and Urban Development’s (HUD) Interagency Council on the Homeless awarded HAP a Community Service Excellence Award. In 1992, Neiman was named the Pro Bono Coordinator of the Year by the National Association of Pro Bono Professionals. In 1993, Neiman was appointed to the American Bar Association (ABA) Commission on Homelessness and Poverty, and was chosen as an ABA Legal Services

Peer Counselor. Over the decade, numerous VLSP individual volunteers and law firms were awarded State Bar President’s Pro Bono Service Awards. In 1995, the Harvard Club of San Francisco awarded Neiman the Distinguished Citizen Award. In 1996, Neiman was awarded the prestigious Kutak-Dodds Award by the National Legal Aid and Defender Association. VLSP staff regularly presented at conferences throughout the country to organizations that were interested in replicating VLSP’s projects. The second decade of the Volunteer Legal Services Program was indeed an incredibly busy and productive time. With the enthusiastic support of BASF’s executive director and the BASF and VLSP boards of directors, the leadership of Tanya Neiman, and the participation of literally thousands of pro bono volunteers, VLSP provided a wide array of services to meet the diverse and compelling legal needs of low-income San Franciscans and set an enviable standard of excellence. Teresa Friend is the director and managing attorney of the Justice & Diversity Center’s Homeless Advocacy Project (HAP). To find out more about HAP, visit www.sfbar.org/hap.

february 1994

Women's Poverty Prevention Project “The WPPP is the newest of VLSP’s special projects, and was created to provide more comprehensive assistance to the increasing numbers of poor women with children contacting the program for legal help.” According to Tanya Neiman, “through the WPPP, VLSP is experimenting with an innovative approach to service delivery, one which, we hope, will truly transform clients’ lives. By moving beyond the exclusive provision of legal solutions to a more ‘holistic’ approach of comprehensively overcoming many barriers to self-sufficiency, WPPP represents VLSP’s vision of the future of poverty law.”

1995

1994

april 1995

First Mock Trial Program The Mock Trial program “came to San Francisco this year as a result of the enthusiastic recommendation, supervision and management of O'Melveny & Myers attorney Douglas E. Dexter.”

april1994

First Food from the Bar “BASF has long been committed to serving the greater community by providing pro bono legal services. Food from the Bar provides BASF with an opportunity to continue and strengthen that committment and make a visible contribution to the fight against hunger in our city.” — 1994 BASF President Raymond Marshall THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 21

Securing your everyday We know purchasing disability insurance isn’t an attorney’s favorite thing to do. But protecting your income can give you - and your family - confidence, so you can get back to the stuff that really matters. Let’s get started today. Frankie Ross, MBA and Vu (Will) Chau CA Ins Lic #0A11172 and #0H60573 Financial Representatives Principal Securities Registered Representatives 500 Ygnacio Valley Rd., #150 Walnut Creek, CA 94596-8206 (925) 906-0400 ross.frankie@principal.com ©2016. Principal Financial Services, Inc. Principal, Principal and symbol design are registered trademarks and service marks of Principal Financial Services, Inc., a member of the Principal Financial Group®. Insurance products issued by Principal National Life Insurance Co. (except in NY), Principal Life Insurance Co. Securities and advisory products offered through Principal Securities, Inc., 800/247-1737, member SIPC. Principal National, Principal Life, and Principal Securities, Inc. are members of Principal Financial Group®, Des Moines, IA 50392. AD3191 | t160728008p

22 SUMMER 2017

SAVE THE DATE 9TH ANNUAL

Putting for the Pipeline Matching in-house counsel and judges as your fourth player.

FRIDAY, OCTOBER 27, 2017 11:00 a.m. – 8:00 p.m. TPC Harding Park, San Francisco

Putting for the Pipeline is a charity golf tournament to benefit educational programs and diversity initiatives of The Bar Association of San Francisco and the Justice & Diversity Center.

SPONSOR THE TOURNAMENT We have sponsorships for every budget!

Sponsors at all levels receive recognition in BASF’s publications and through our robust social media channels. We promote your sponsorship to our 7,000+ members from law firms, corporations, and government agencies in the Bay Area and beyond. Contact Steve Love, Director of Donor and Community Engagement, at slove@sfbar.org or 415-782-8917.

www.sfbar.org/golf Sponsors as of May 5, 2017

Fenwick & West Pillsbury Winthrop Shaw Pittman = 40th anniversary sponsor THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 23

COMMUNITY LAW PRACTICE INCUBATOR

SOLO NEVER ALONE

Hamid Yazdan Panah

his past fall, The Bar Association of San Francisco (BASF), in partnership with the Justice & Diversity Center (JDC) and the Lawyer Referral and Information Service, started the Community Law Practice Incubator (CLPI). CLPI began as an initiative of 2016 BASF President Michael Tubach, O’Melveny & Myers. Thanks to 2013 President Chris Kearney, Keker, Van Nest & Peters, generous seed funding was provided for the incubator. In addition to Chris Kearney’s contribution, funding was provided by Michael Tubach, O’Melveny & Meyers, and several partners from the O’Melveny firm. Off to a great start, the incubator completed its first half term of operations in March 2017. The focus of CLPI has been to provide guidance and support for attorneys with a passion for community service and the ambition to start a solo practice. The program started its inaugural class with four participants, each with their own unique backgrounds, diverse career paths, and a strong commitment to serving the legal needs of their community. Participants not only completed a rigorous boot camp to launch their solo practice but also participated in weekly meetings and CLE seminars to sharpen their practice skills. Although the essence of building a solo practice is selfsufficiency, the philosophy of CLPI has been, “Go solo, but 24 SUMMER 2017

not alone,” and to this end the incubator has sought to foster a sense of community and cooperation. This includes providing a space for mentors and participants to communicate and share ideas about law practice management, legal strategies, and business philosophy. It also provides a sense of stability for participants in times of uncertainty and solitude. Christina Sava, a CLPI participant, found that the incubator’s guidance helped her build a practice she felt comfortable with. “Thanks to the facilitators at BASF and the generous solo and small firm attorneys that came to talk with us, I now feel confident in operating my own practice, my own way.” In addition to juggling all of the administrative tasks and legal know-how required to start their solo careers, participants also worked directly with pro bono and lowincome clients through the incubator’s referral program. In their work with clients, participants put theory into practice and learned what life as a solo attorney is actually like. Participants’ practical experiences included dealing with problematic clients, receiving guidance from mentors and colleagues, and ultimately serving vulnerable populations who needed legal assistance. “I graduated from law school not really knowing what it took to start a law firm. Through the incubator, I found out that it was not that hard and

photo by Jim Block

COMMUNITY LAW PRACTICE INCUBATOR

Front, from left, CLPI participants Jason Yee and Jubilee Menzies, and Chris Kearney, 2013 BASF president; back, from left, Michael Tubach, 2016 BASF president, and Nick Goldman, CLPI participant

it was exactly what I wanted to do,” said Jason Yee, a UC Hastings College of the Law graduate with an interest in immigration and business law. As CLPI approaches the second half of its first year, it not only is set to take on additional participants but has decided to expand its practice areas to include immigration law. This provides participants with an additional area of law to explore and also addresses the overwhelming demand for immigration attorneys within the local community. The demand for affordable legal services in the Bay Area remains an important community issue, and there is a significant need to foster private practices that are able to take on low-fee clients who are unable to find representation at a nonprofit. As the practice of law changes and the need for affordable legal services grows in the Bay Area, CLPI

serves as an important hub to foster a sense of community and collaboration. For Nick Goldman, a CLPI participant who focuses on landlord-tenant issues, community remains a key ingredient to success as a solo. “No person achieves success on their own. There is only one name on a solo practitioner’s stationery, but it takes a group to make it a success.” Hamid Yazdan Panah is an attorney and the Community Law Practice Incubator coordinator. To learn more, contact him at hpanah@sfbar.org or visit www.sfbar.org/clpi.

Read the incubator participants’ profiles on the following pages.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 25

COMMUNITY LAW PRACTICE INCUBATOR

NICK GOLDMAN

Landlord-Tenant Law www.nicholasgoldmanlaw.com

ick Goldman has been many things over the course of his life—veteran, realtor, paralegal, and now solo attorney. His past experiences have not only taught Nick valuable lessons but have all seemingly come together to prepare him for life as a solo. After graduating as valedictorian of his law school class, Nick decided to embark on a solo career and focus his practice in an area that combines his passion, past experience, and community needs: landlord-tenant law. “I wanted to combine my love of real estate and my love of the law.” Previously, Nick had volunteered at the Housing Rights Committee in San Francisco, experiencing first-hand how important an issue housing is in San Francisco. Nick’s experiences have granted him access to a steady stream of referrals from former clients and connections, and his past work with landowners and tenants provides him with a balanced perspective in a contentious area of the law. Although he looks every part the seasoned attorney, going out on his own was just as daunting for Nick as for anyone else. “I knew that I wanted to set up my own solo practice, but I was unsure of how to do it. On the larger scale, my concern was whether the idea was feasible at all. Was the idea of going solo a folly or could it really be done? How could I make it happen on my own?”

26 SUMMER 2017

For Nick, CLPI provided a stable platform to transition from law school to actually using the law on a day-today basis. The guidance of BASF and the support of JDC helped Nick become “bona fide” as he calls it. “Being solo does not mean that one has to go it alone. I now know that it is entirely possible for an attorney to get out of school and hang out their shingle. And that there are many seasoned attorneys who are willing to help with that process. “ And far from being alone, Nick has utilized a multitude of resources within the CLPI program to jumpstart his first year. “First came the boot camp, during which we met and spoke with solo practitioners from different backgrounds and specialties who all carried the same message: that going solo is not only possible but very rewarding on many different levels. I’ve found this to be the case in my own practice.” As he completes his first year of solo practice, Nick hopes to build a trusted name among his clients and develop a practice that is both sustainable and community oriented. “Looking forward, I see myself as a trusted advisor to a select group of repeat clients. With the procedures and resources that I have learned in CLPI, I know that this goal can be reached.”

COMMUNITY LAW PRACTICE INCUBATOR

JUBILEE MENZIES

Elder Law

ost solo attorneys don’t start out with a specific niche, but most solo attorneys aren’t Jubilee Menzies. A graduate of Boston College Law School, Jubilee spent six years practicing antitrust, consumer protection, and class action litigation in San Francisco before deciding to go solo. “A lot of these large class action cases provided the opportunity to craft interesting legal arguments or learn about the business practices in a given industry, but you never actually sat down face to face with a client. Prior to law school, I worked with people every day, face to face, constantly interacting and solving dynamic problems; and I found that I missed that.” Having real clients was important to Jubilee, so she sought out pro bono opportunities through the Justice & Diversity Center (JDC) and other avenues. One pro bono case that pointed Jubilee in a new career direction came when a family had moved their elderly, blind mother into a continuing care community in a different state. Several months in, a bedbug infestation was discovered and the facility began evicting residents. When Jubilee stepped in, the facility was refusing to work with the out-of-state family or provide additional time to find

suitable housing and was actively pressuring the woman to take her belongings to a hotel within a week. “In that one case, I researched so many different topics from housing to health care to disability rights. I was shocked by the facility’s treatment of this woman and her family and saw the world open up for them just because an attorney had gotten involved.” The case resolved favorably prior to litigation, and it left an impression on Jubilee. “I recognized an entire population of underserved elders in our society and saw an opportunity for me to get back into working with community members on a one-on-one basis, so I decided to become an elder law attorney.” As Jubilee launched her new solo practice, she joined CLPI to access the direct mentorship available because “the greatest challenge I have found has been knowing which steps I need to take in order to establish a sustainable business.” As she moves forward, Jubilee remains committed to bringing to bear everything she learned from complex litigation, to community organizing, to teaching in establishing a holistic practice that is focused on clients and their access to justice.

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 27

COMMUNITY LAW PRACTICE INCUBATOR

CHRISTINA SAVA Cannabis and Business Law www.mcdlawyer.com

hristina Sava is not your typical attorney. She has an ace up her sleeve. Or in her mind. Christina practices mindfulness meditation as a means to handle the day-to-day stress of her practice and a busy urban lifestyle. She also teaches mindfulness to other attorneys, in hopes that they may find the same benefits that she does. “The hallmarks of a mindfulness practice are empathy and equanimity, and a lawyer with a mindfulness practice is best equipped to meet the client’s legal and emotional needs.”

her solo practice to help ameliorate the current crisis of lack of accessibility to much needed legal services.

Christina, a 2014 graduate of the University of Miami (UM) School of Law, apprenticed under Scott Rogers, the director of the university’s Mindfulness in Law program. Christina brought these experiences and her passion for communityoriented legal work to the CLPI program.

But the path to solo nirvana isn’t easy. In her quest to create a practice that not only focuses on community needs and sustainability but also seeks to promote empathy and awareness, Christina has found solace in community and cooperation.

“There is a growing need for attorneys to explore the tools offered by mindfulness meditation for their own sake, for the sake of their clients, and for the sake of the legal profession as a whole. As a participant in CLPI, I had a chance to put mindfulness practices and principles to the test in a community law practice setting.”

“Although I am interested in solo practice, I still believe in the power of joining forces and sharing, and I would like to share my own experience with the community of colleagues I connect with through the incubator.”

Christina’s own past experiences as an assistant to a successful solo attorney have motivated her to pursue a solo path. She is committed to social justice and diversity and hopes to use

28 SUMMER 2017

“I want to be a solo practitioner so that I can offer the most attuned, empathetic, and encouraging representation possible for my clients. I deeply appreciate the interpersonal aspect of legal representation—the human connection formed between attorney and client. I want to help create a culture of practice that assures clients that the justice system can work for them.”

Christina is the managing attorney at the Law Offices of James Anthony and is using the solo practice she started at CLPI to continue to help low-income clients through the JDC and LRIS low-fee referral system.

COMMUNITY LAW PRACTICE INCUBATOR

JASON YEE

Immigration and Business Law www.jyeelaw.com

ason Yee is a man on a mission. You may see him in the halls of BASF, at the immigration court, or at a community naturalization event, combining old-fashioned hard work with new age efficiency. Jason, a graduate of UC Hastings College of the Law, has jumped into solo life with fervor, and has brought his own brand of entrepreneurial energy to the legal world. Before starting his own practice, Jason played a role in every aspect of his family business, including marketing, accounting, sales, legal, and other essential operations in the company. “The things I have learned in my family business are directly transferable to running a successful law practice.” After spending some time serving as general counsel to his family business, Jason contemplated his future while taking on pro bono cases at JDC and other local nonprofits. He decided that a solo career would provide him the type of flexibility and independence he craved. Jason has found that CLPI offered him the stability and guidance to get through the rough first year of practice. Not only did the program help him sort out the nuts and bolts of his practice, but it provided him with clients and cases to keep him busy during his launch period. The program also provided him with valuable resources and an operational structure.

“If I just started my own solo practice, it would be much more difficult to manage both paying for events and trainings and volunteering at pro bono clinics. By participating in the incubator, I have access to an array of resources and contacts while being within a program that allows me to give back to my own community.” Jason has focused his practice primarily on immigration and business law but has also taken on cases involving bankruptcy, landlord-tenant, and family law. Through his contacts in the community and his drive to expand his network, Jason has increased his caseload and built a practice that he hopes to expand. As the need for immigration representation increases in the community, Jason hopes to grow professionally into a position where he is able to address the needs of the community. Now more than halfway through the incubator’s first year, Jason is bullish about his future prospects and how things are shaping up. “I successfully launched my solo practice last year. I have paying clients, pro bono clients, an office, a website, mentors, referrals from other attorneys, advertisements, and a variety of other things. There’s still a lot to do, but it has been extremely fulfilling.”

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 29

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 31

FIGHTING POWER WITH KNOWLEDGE

LAWYERS STANDING UP TO INJUSTICE IN THE WAKE OF TRUMPâ&#x20AC;&#x2122;S TRAVEL BAN Leslie A. Gordon

SUMMER 2017

To the left: Protesters fill the international terminal at San Francisco International Airport on January 29, 2017, in the wake of President Trump’s executive order temporarily barring refugees and citizens of seven Muslim-majority countries from entering the United States. Photo: Getty Images

n her way to San Francisco International Airport (SFO), Janel Thamkul, associate corpo rate counsel at Google, stopped at Office Depot. She’d read on Facebook that individuals arriving into the country were going to need lawyers. And those lawyers needed a printer, right away. The Facebook plea came following the January 27 announcement of President Donald Trump’s brand new executive order, which prohibited refugees and visitors from seven Muslim countries from entering or reentering the United States for 90 days; blocked refugees from all countries for 120 days; and prohibited Syrians indefinitely. “It was a huge shock,” Thamkul recalls, “to go through your Facebook feed and immediately see the real impact on people who were detained. I headed to SFO to see if there was anything I could do to help.” Thamkul was one of hundreds of lawyers who went to airports around the country to volunteer their legal skills in the burgeoning resistance to Trump’s agenda. Having taken an oath to uphold the Constitution, lawyers dove in head first to oppose what many considered were extreme actions of the new administration. In the months since the inauguration, lawyers have also volunteered their time on issues related to voting rights, racial justice, governmental ethics, and environmental protections. In fact, attorneys have become the unlikely heroes of the resistance movement—so much so that those long-worn lawyer jokes may go the way of 35-mm film and coal mining jobs. When Thamkul arrived at SFO’s International Terminal that day after picking up a printer, she discovered that a designated lawyer area had been set up near Starbucks. There

were about ten attorneys there wearing “lawyer” nametags. “I walked around at first to get a sense of what was going on,” she recalls. Then she heard about another passenger exit area. She headed there and found more lawyers holding signs reading, “If you saw anyone detained, talk to us.” Thamkul used the printer she brought to print out similar signs in English and Arabic. Together with other attorneys, she approached waiting families, mostly families of color, and assessed, based on nationality and immigration status, the risk of whether a passenger had been detained. Lawyers also handed out detention information sheets. As people departed planes, many thanked the waiting lawyers. “But some called us names,” Thamkul says. Some of the protestors got rowdy and airport police briefly appeared wearing riot gear. “It was eye-opening.” According to Thamkul, who serves on the board of Asian Pacific Islander Legal Outreach, lawyers are particularly attuned to the gravity of situations like those that occurred at airports around the country that weekend following Trump’s executive order. A law school education provides a unique historical perspective on what happens when “constitutional rights are abrogated,” she explains. “When we hear that immigration isn’t protected by the Constitution, we know that can be a proxy for racial discrimination and xenophobia just like what happened with Japanese internment” during World War II. “That’s one step away from encroachment on my rights, on the rights of people I care about. Lawyers know to be watchful and vigilant. It’s up to us to hold up the red flag when we see rights being encroached upon.” Among other lawyers at SFO that weekend were associates from Keker, Van Nest & Peters, including Jay Rapaport, Eduardo Santacana, Chessie Thacher, and Ian Kanig. “First and foremost, we represent the rule of law, and it’s threat-

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 33

Lawyers know how to be watchful and vigilant. It’s up to us to hold up the red flag when we see rights being encroached upon. —Janel Thamkul

ened now,” Kanig says. “Lawyers are an integral part of maintaining order and normalcy.”

“And they saw lawyers as having the ability to fight power with knowledge.”

At the airport, the Keker group worked “to separate fact from fiction” and to try to connect with family members waiting for people who hadn’t made it through the terminal, Santacana recalls. “Even though we don’t typically practice immigration law, the philosophy of our firm is that the practice of law is more or less the same. We use the same tool kit so we’re prepared to take on whatever comes our way. This was an emergency and we went to SFO to do triage. We had support from our firm and the legal community.” Rapaport confirms that the “vast majority” of lawyers at SFO that weekend were not immigration lawyers. “But that’s what we’re here for: to stand up to injustice.”

At another point, lawyers were asked to come to the front of the area where they received a standing ovation while people chanted, “Thank you, lawyers.” According to Rapaport, lawyers were thanked “not just for a skill set but for what we represent. It gives people hope and encouragement.”

The Keker lawyers assisted a pregnant Iranian pharmaceutical company executive who was returning to the United States following a business trip, as well as a man whose wife’s elderly Iranian parents were detained since early that morning. Although the Keker lawyers weren’t allowed to speak directly to detainees, they were in phone contact with the American Civil Liberties Union (ACLU) to determine the appropriate course of action in each case. For Thacher, the most compelling moment at the airport that weekend came when people began chanting “Let the lawyers in” to meet with detainees. “People viewed the Trump order as an overreach of power,” she says. 34

SUMMER 2017

Even lawyers in training have pitched in with the resistance to the new administration. Alexandra Andorfer, a secondyear student at UC Hastings College of the Law, planned to go to SFO that weekend, ready to serve as “an impromptu law clerk and do research with my free Lexis/Westlaw password.” But in a measure of how engaged the legal community was, Andorfer was actually turned away because there already were so many lawyers volunteering. Still, Andorfer stands ready to join in the next time her legal skills might be needed. Young law students, she notes, are uniquely poised to assist the resistance. Specifically, with social media, “we’re so accessible to each other” that grassroots student movements are easy to form. President of the Hastings chapter of Ms. JD, Andorfer is especially eager to help with efforts related to preserving affordable health care and reproductive rights. “I’m always looking for ways to help underserved populations,” says Andorfer, who also organized the seventy-person Hastings contingent at the San Francisco Women’s March during in-

auguration weekend. Though she plans to go into corporate law after graduation, resistance work will remain on her agenda throughout this administration. “The education I’m getting and the skill set I’m learning can help other people. There’s enough going on in this administration, it will always come up.” Law students “know what’s at stake” in this administration, adds Zoey Surdis, a second-year law student who coorganized Hastings’s Women’s March contingent with Andorfer. “It’s a perplexing time. We’re taught to be impartial advocates for clients no matter how heinous the crime. But the very laws we’re told to uphold pose a direct threat to civil rights and the Constitution,” explains Surdis, who regularly does pro bono work through Hastings’s Legal Advice and Referral Clinic. “So we’ve started to mobilize.” Back at Keker, “After the initial chaos from airport weekend, our firm shifted into gear,” Rapaport says. “We had a large team working around the clock on broader immigration issues.” In early February, Keker partnered with the ACLU to file suit in the United States District Court for the Northern District of California contesting the travel ban. Specifically, it filed a class action complaint for declaratory and injunctive relief on behalf of the ACLU, Jewish Family & Community Services East Bay, and three students from Muslim countries possessing valid F-1 student visas. The complaint alleged that President Trump’s order was really just a proxy for illegal xenophobia and violated both the First and Fifth Amendments as well as the Immigration and Nationality Act, which ensures that the United States doesn’t adopt discriminatory immigration policies. According to Santacana, Keker had an all-hands meeting in which it pledged its support to causes that “protect the vulnerable from the unconstitutional, discriminatory practices of the administration.” Keker committed to do more pro bono this year, according to partner Jamie Slaughter because “as lawyers, we swore to uphold the Constitution.” After volunteering that weekend at SFO, Thamkul took a step back from the overwhelming energy such an effort requires to avoid issue fatigue and to assure that she would be able to step up to the next such challenge. “I focused on

my job and being present with my children. As a private citizen, I will continue to contribute financially to organizations fighting the good fight and increase my engagement with pro bono work serving communities at risk.” Indeed, attorneys looking to get involved might want to pace themselves the way Thamkul has done. “It’s going to be a long four years,” Rapaport says. “There will be many opportunities to help out in ways we can’t even anticipate yet.” A former lawyer, Leslie A. Gordon is a freelance journalist living in San Francisco. She is the author of Cheer: A Novel and Heads or Tails, both available on Amazon. She can be reached at leslie.gordon@standfordalumni.org.

Help Immigrants Facing Detention and Deportation Find out how you can get involved—visit www.sfbar.org/ immigration/resources.aspx Learn about: • rapid response networks and partnerships • volunteer opportunities for every attorney, from solo practitioner to large law firms • upcoming and recorded CLE seminars and trainings • resources for immigration attorneys

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 35

SO MANY SEATS TO FILL THE FUTURE OF THE FEDERAL JUDICIARY

James Marion

hen it comes to matters of the federal bench, the Supreme Court tends to hog the spotlight. Indeed, the recent confirmation of Neil Gorsuch to the nation’s highest court saw the culmination of a yearlong saga, with right and left battling since February 2016 to fill the seat of the late Associate Justice Antonin Scalia.

In that time, we have seen the unprecedented Senate Republican stonewalling of President Barack Obama nominee Merrick Garland, the shocking upset electoral victory of Donald Trump, the subsequent nomination of Judge Gorsuch that resulted in a Democratic filibuster, and the so-called “nuclear option” rule change used by Republicans to circumvent that filibuster and ultimately upend the Supreme Court confirmation process for the foreseeable future. Not since Franklin D. Roosevelt’s infamous 1937 “court-packing” proposal have we seen a year so fraught with judicial politics . . . and it looks like the story is just getting started.

36 SUMMER 2017

With all the high-stakes drama that comes with confirmations and landmark decisions, it can be easy to forget that the Supreme Court is only the tip of the judiciary iceberg. While the issue has largely gone uncovered by mainstream media, the situation facing the other 881 federal judgeships is perhaps even more critical.

THE LOWER COURT’S BURDEN Federal judges are appointed by the president and confirmed by the Senate pursuant to the appointments clause in Article II of the US Constitution. These individuals are the embodiment of the power vested in the judicial branch in Article III, and, as such, they are typically referred to as Article III judges. This group includes the nine justices of the Supreme Court of the United States (SCOTUS), the thirteen circuit courts of appeals, which comprise 179 seats, and the ninety-four district (and territorial) courts with their 677 seats. The remaining federal judgeships are found on the less well-known US Court of International Trade and the US Court of Federal Claims. With the exception of the federal claims court, all federal judges are appointed for life terms. Within this breakdown, the circuit appellate judges, but particularly the solitary district court judges, field the lion’s share of federal cases, a workload that Chief Justice John Roberts has called “daunting.” The typical federal judge has upwards of 500 cases on their docket. In the fiscal year that ended last September, the district courts saw 369,000 new filings, reflecting a 38 percent increase in overall caseload since 1990—the last time Congress passed comprehensive legislation to expand the number of judgeships. Comparatively, over that same twenty-seven-year period, new judgeships have only increased by 4 percent. Given the depth of knowledge, patience, and insight required to process and adjudicate each complex federal claim, it would be fair to say that our federal judges are swamped. For certain courts, the resulting backlog has reached dire levels. At the time of this writing, a total of forty-eight “ju-

dicial emergencies” had been declared within the federal system, with at least four districts (including the Eastern District of California) identified as requiring urgent relief. The Federal Bar Association has been pushing Congress to address the crisis, citing the inability to deliver judgments expeditiously and the associated costs transposed to litigants as a result. Furthermore, they note that given the growing number of criminal defendants being tried in federal court—an increase of 33 percent since 2003—the Sixth Amendment right to speedy trial is in jeopardy. While judicial emergencies are in part defined by a particular court’s excess of adjusted filings (upwards of 700 per panel for the appellate courts, or 600 per judgeship at the district level), stressing the need for more judgeships overall, they are also largely the result of copious vacancies in seats that already exist. With the number of vacancies almost certain to increase, the effort to fill them could become a referendum not only on the character and functionality of the judiciary, but on our entire governing system.

POTENTIAL FOR HISTORIC VACANCIES With his first SCOTUS appointment now in the rearview, President Trump and his team can now set their sights on a long list of judges needed to occupy the roughly 12 percent of lower court seats currently sitting empty. That number, while not the highest in recent history (Bill Clinton entered the White House with 14 percent of judgeships unfilled), is still double what Barack Obama faced in 2009. The discrepancy is due in some part to the obstructionist tactics employed by Senate Republicans throughout Obama’s two terms, but especially in his final two years in office, where the ability to delay confirmation afforded opportunity to run out the clock on the administration. This political gamble paid off handsomely, much to the chagrin of frustrated Democrats. Merrick Garland was of course the most conspicuous casualty of the confirmation blocking, but the gambit also wreaked havoc on the lower courts, a

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 37

Obama accomplished an unprecedented diversification of the federal courts, seating more female, minority, and openly gay or lesbian judges than any president before him. [...]Trump’s conservative backers are now eager for a chance to counter what they see as an ideological shift in the courts’ makeup and tenor, and the numbers suggest they could very well get their wish. On top of the current 12 percent vacancy count, statistical models forecast another 38 percent of federal seats will become vacant during Trump’s term.

local example being Obama’s nomination of District Court Judge for the Northern District of California, Lucy Koh, to fill the seat left vacant by Ninth Circuit Appellate Judge Harry Pregerson. Though Koh was nominated in February of 2016, her nomination slowly withered on the congressional vine, and eventually expired just after the new year. By Inauguration Day, 112 vacancies existed on the federal bench and 33 of those vacancies had existed for more than two years. Despite the uphill battle to confirm his judicial nominees, Obama still managed to appoint nearly 40 percent of the federal bench before leaving office, helped in large part by the Senate Democrats’ own 2013 dalliance with “nuclear” maneuvering, which eliminated the filibuster during approval votes for the lower courts, meaning judges could now be confirmed with a simple majority vote. Through these successful appointments, Obama accomplished an unprecedented diversification of the federal courts, seating more female, minority, and openly gay or lesbian judges than any president before him. For the first time ever, white male judges, a group that historically dominated the courts’ demographics, fell out of the active majority. Trump’s conservative backers are now eager for a chance to counter what they see as an ideological shift in the courts’ makeup and tenor, and the numbers suggest they could very well get their wish. On top of the current 12 percent vacancy count, statistical models forecast another 38 percent of federal seats will become vacant during Trump’s term. 38 SUMMER 2017

A number of federal judges are above the age of seventy. Moreover, while federal judges are appointed for life, with a certain combination of age and years served they become eligible to elect “senior status,” whereby they enter a form of semiretirement and are replaceable. If, in concert with nature, all eligible judges elect senior status during his term, Trump could ultimately appoint over half of the federal bench. Lost below the din of flashier headlines, Trump made his first lower court nomination in late March by selecting District Judge Amul Thapar to fill a spot on the Sixth Circuit Court of Appeals. If Judge Gorsuch and Judge Thapar are an accurate barometer of picks to follow, it would appear Trump largely favors a pool of candidates in the Scalia mold, curated by leaders of conservative law organizations like the Federalist Society, the Heritage Foundation, and the Judicial Crisis Network, not to mention the super PACs that supply it with anonymous donor dollars. The question remains as to what priority the new administration will assign to pushing through its nominees speedily and to what extent it can negotiate Democrats’ efforts to slow them down. James Marion is the principal attorney at Law Offices of James P. Marion, Esq. and the president and head writer at Greenlitscripts, a media content and consulting company. He can be reached at james@marionesq.com

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THE HIGH PRICE OF CALIFORNIA'S FAILURE TO FUND DEPENDENCY COUNSEL Julie Traun

“State intervention in the lives of families, even when absolutely necessary, is a traumatic experience for children and parents alike.”1 Indeed, “[t]here are hardly more consequential acts the government can take than deciding whether to remove a child from the home and terminate familial rights.”2

wo years ago the ACLU’s white paper report “System on the Brink” warned that California’s “crushing caseloads in the California Dependency Courts undermine the right to counsel, violate the law and put children and families at risk.” Statewide average caseloads are triple the American Bar Association’s (ABA) recommended caseload of one hundred per attorney, and while less wealthy states like Georgia and Arkansas meet the ABA guidelines, California is incredibly far behind on its legal obligations to families served in dependency court.3

Although California has enacted complex and demanding statutory require40 SUMMER 2017

ments for lawyers practicing in this highly specialized area of law—rarely taught in law school—to date, the state hasn’t provided sufficient funds to meet its statutory obligations. The shortfall is $88.2 million.4 Impor tantly, $88.2 million is needed to bring caseloads down to 141 per attorney, not the ABA recommended caseload of 100. The need is palpable to the judges presiding over these matters. In an unprecedented letter to Governor Jerry Brown last May, 150 Superior Court judges representing forty-one counties pleaded with him to meet this critical need. This year, California Supreme Court Chief Justice Tani G. CantilSakauye argues, “[t]he need to adequately fund dependency counsel for this most vulnerable group of people cannot be overstated,” yet those close to the legislative process do not pre-

dict a meaningful increase in funding statewide, and more than half of the state’s counties, including San Fran cisco, will suffer significant cuts to their already underfunded programs.5

FUNDING SHORTAGE TO SAN FRANCISCO Locally, San Francisco Supervisor Malia Cohen, who strongly believes the state must fund these mandated legal services, sponsored a resolution, unanimously approved by the Board of Supervisors, that urged the governor and legislature to meet this obligation; in addition, she introduced a resolution overwhelmingly approved by San Francisco’s Democratic County Central Committee (DCCC), similarly urging both branches of government to fund dependency counsel statewide. San Francisco is currently funded by

The economic burden on San Francisco of child maltreatment is $400,533 per child.12 the state at only 71 percent of need,6 but under a reallocation plan urged by the governor and adopted by the Judicial Council, San Francisco will suffer a cut of $1.2 million in fiscal year 2017–2018. The Bar Association of San Francisco (BASF), which oversees and assures quality representation for indigent families of the dependency court, in partnership with the Superior Court has repeatedly reached out to state decision makers, warning that cuts of this magnitude will dramati cally reduce the quality of representation in San Francisco. Our currently experienced and therefore efficient and cost-effective attorneys will leave the practice and it will take many years—even with restored funding at a later date—to rebuild the quality of this program. In the meantime, the costs to families, the city, and the state will grow exponentially.

dependency proceedings is crucial to realizing . . . tenets of fairness and due process . . . [and] clearly linked to increased party engagement, improved case planning, expedited permanency and cost savings to state [and city] governments.”7 Outcomes improve when parents and children are represented by trained, effective, and competent counsel. The cost-effectiveness of experienced counsel carrying reasonable caseloads cannot be over stated, because skilled advocates protect abused and neglected children, reduce unnecessary reentries into foster care, increase timeliness and durability of reunification when appropriate, reduce intergenerational abuse, and help keep San Francisco’s families together in the community where they can have access to services and family/ community support.

WHY ARE EXPERIENCED COUNSEL SO IMPORTANT?

WHO ARE THE FAMILIES IN SAN FRANCISCO’S DEPENDENCY COURT?

Research has long demonstrated that “providing high quality legal representation to all parties at all stages of

There are many assumptions about what brings a family into the dependency system. Last year, one in twenty-

five children in San Francisco was involved in a case of alleged or suspected abuse.8 Fourteen percent of suspected cases were confirmed: 81 percent of the cases involve neglect, 12.4 percent involve allegations of physical abuse, and just over 5 percent involve allegations of sexual or emotional abuse.9 Most foster children have never experienced physical or mental abuse; rather the vast majority are removed from their homes because of risk of harm that is associated with living below the poverty level. As noted in a recent PBS NewsHour report, many of these families suffer from “toxic stress . . . the result of poverty, abuse and neglect, domestic violence, just life’s circumstances when . . . a family lives under stress.”10 And the stress of poverty changes the brain and one’s ability to cope: “When a person lives in poverty, a growing body of research suggests the limbic system [which processes emotions and triggers emotional responses] is constantly sending fear and stress messages to the prefrontal cortex, which overloads its ability to solve problems, set goals, and complete

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 41

Child Abuse in San francisco In 2015, there were 5,545 reports of child abuse in San Francisco, of which 753 cases were substantiated (confirmed to be maltreatment after investigation by Child Protective Services). PHYSICAL ABUSE SEXUAL ABUSE EMOTIONAL ABUSE

REPORTED

PHYSICAL ABUSE

SUBSTANTIATED

NEGLECT

SEXUAL ABUSE EMOTIONAL ABUSE NEGLECT

The Economics of Child Abuse—A Study of San Francisco, San Francisco Child Abuse Prevention Center and Berkeley Haas School of Business, University of California, 2015

tasks in the most efficient ways.”11 And deeply troubling is the racial disparity. Fifty-six percent of children in foster care in San Francisco are African American/Black, ten times the percentage of San Francisco’s Black population; the percentage of Latino children in foster care is nearly double that of the city’s population. This work is extremely challenging, legally and emotionally. Getting it right early in the proceedings is critical to the well-being of the child and family and less costly to the city and state. The economic burden on San Fran cisco of child maltreatment is $400,533 per child.12 While many families were interviewed for this article, four provide important examples of the staggering conse42 SUMMER 2017

quences of our dependency system and the importance of quality legal representation. In the following sections, a mother who nearly lost her only son, a foster youth who as an adult faced removal of her own children, and two foster parents who ultimately adopted children, share their stories. Dependency proceedings are closed and the records are sealed. Therefore the names of interviewees have been changed to protect the privacy of the children and parents who graciously shared their very painful stories with BASF.

Amara, A Mother Amara was born and raised in West Africa; she became a US citizen and married, but her marriage was not to last. Separated from her husband, she found coparenting of their only child nearly impossible because the divorce was highly contentious; her former

husband “just hated me and found it impossible not to hurt me.” This devoted mother found herself accused of something that never happened: taking inappropriate photographs of her son, and to her horror, her ex-husband’s accusations were believed. Child Protective Services (CPS) was called and the agency removed the child while the proceedings were pending; physical custody of Amara’s eight-year-old son was awarded to her ex-husband. For nearly three months, Amara was unable to see her son except in public places under supervision. She was devastated. She was not working, had no income, felt powerless and terrified. Amara’s court-appointed attorney believed in her innocence, fighting the allegations with “great skill and dedication.” “It took so much work and so much strategy and the involvement of

experts. . . . If I had all the money in the world, I could never repay her for what she did for me and my son. ” As required by law, an attorney was also appointed to represent Amara’s son, and at first the attorney believed the accusations, but through the work of Amara’s attorney, both her son’s attorney and CPS realized a terrible mistake had been made. Indeed, at the conclusion of the case, the supervising social worker connected Amara to a nonprofit where she now works, supporting women’s mental health needs. Some of the women are fighting to regain custody of their children removed from the home by CPS. “I am humbled that I get to sit with these women, and I am of them; I am grateful that I am able to help them and to give back.” When Amara was advised that the governor had previously vetoed and will likely again veto additional funding for dependency counsel and that San Francisco faces a $1.2 million cut to its already underfunded budget, she was stunned, “Do I need to walk from here to Sacramento? This cannot be permitted!” Amara knows that in less capable hands, this false accusation would have destroyed her and her son.

Jasmine, Foster Youth, Parent Jasmine was a foster youth who bounced between foster homes in San Diego and Redding. The experience was a painful one and left many scars. She’s highly critical of the system,

which she explains has no place or effective support for teens, especially those who act out. “Ninety percent of teens are going to run from their placements—to a pipeline to prison.” At nineteen, while going to school and living in a homeless shelter, Jasmine gave birth to the first of her five children. She was not emotionally or financially equipped to provide the stability they needed and found herself in dependency proceedings and her children in foster care—the very system she felt had failed to support her. Through the relentless advocacy of her court-appointed attorney, Jasmine has custody of all five of her children and now at the age of thirty-five will soon be completing her bachelor’s degree in psychology, to be followed by a master’s degree in social work, so that she can guide youth through a system “the way I had hoped I could have been guided, when I was young.” Her lawyer, Jasmine explains, made this possible. “She knew me and I trusted her. She knew me well enough, for example, to know that individual therapy would work for me and the recommended group therapy would not, and she reminded me again and again that she believed I could become the mother I needed to be. This was true of my children’s court-appointed counsel as well, who encouraged me and protected my kids; these attorneys were a team. I had so much to overcome but these lawyers are all about the children and they are pro-family,” working tirelessly. “My children will not grow up as I did; I’m good at helping not only

my children, but others who need to discover ‘how else’ to handle what challenges them.” Without these lawyers, Jasmine readily admits, her success and that of her children would have been impossible.

Janice, Adoptive Parent Janice is a foster parent. Born and raised in San Francisco’s Mission District and now residing in Sacramento, she has served as a foster parent since the 1980s and has worked with the Children’s Home Society. She adopted a foster daughter and is currently the foster parent of two young brothers, hoping to finalize their adoption by the time this article is published. Janice is part of a large extended African American family. “There are three hundred of us; most in our extended family are so wonderful, but some have struggled with huge problems, on occasion, bringing them to into the dependency system.” Janice’s adopted daughter and two younger boys in foster care are relatives. Janice describes the attorney appointed to represent the two boys as a “complete blessing—there is no one in their lives like her, and they surely know that she is passionate about and dedicated to their well-being.” The older of the two boys suffered greatly, and by age four, when he came into foster care, “had witnessed and experienced things no one (including adults) should—violent deaths, sex acts, drug use; he even acted as a lookout for the police, sometimes at 3:00 a.m., making him suspicious of the police to this day. This little boy suffers from PTSD

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 43

Last year, one in twenty-five children in San Francisco was involved in a case of alleged or suspected abuse. [...] Most foster children have never experienced physical or mental abuse; rather the vast majority are removed from their homes because of risk of harm that is associated with living below the poverty level.

and has been diagnosed with ADHD.” But Janice explains, with therapy, love, and stability, he’s come a long way in three years, and “he is clearly a gifted student.” She fully intends to be the boys’ “forever family” so that they never need to hear that they “belong to the state of California” or that they are “wards of the court.”

had an eleven-year-old daughter but felt compelled to do what they could when they heard that the greatgranddaughter of Michelle’s mother’s best friend was in foster care in San Francisco. One of BASF’s depen dency panel attorneys was appointed to represent the child whose mother was incarcerated.

Janice describes the dependency proceedings and adoption process as tremendously complicated and challenging, and while one or two social workers have been helpful, most have been extremely unhelpful, and “these boys do not trust anyone but their lawyer, who has been the one constant and positive professional.” Janice worries about cuts to these critical legal services for “it’s only going to cost more if we can’t find legal counsel like this to solve these complicated problems. These kids will simply enter the pipeline to prison in the absence of trained, passionate lawyers like this.”

Although Michelle had been involved as a professional with some of the work of the dependency system and therefore was no novice, this was her first personal intersection with lawyers, social workers, and judges. “This attorney was the one constant person in our Beverly’s life; we saw so many different social workers, each one with a different approach, different protocols and rules, but this dedicated attorney provided stability within a system that proved extremely difficult to navigate—even for us as professionals.” In short, this attorney “saved Beverly’s life; I can’t rave about this attorney enough; she’s in there fighting for these children with know-how, care, and professionalism.” Michelle’s initial goal was to provide support and a connection for this girl, but the family fell in love with her. Once the bond

Michelle, Adoptive Parent Michelle, a public health nurse and her husband Ben, a manager at BART, 44 SUMMER 2017

was made and the legal path cleared, Michelle and her husband adopted Beverly, who is clearly loved and thriving with this remarkable family.

A JUDICIAL PERSPECTIVE The San Francisco bench is deeply troubled by the cuts to dependency counsel. Judge Susan Breall relies on skilled, experienced counsel. “I’ve presided in the criminal and delinquency courts and, of course, I’ve observed outstanding lawyers in these courts, but the experience, expertise, and effectiveness of the dependency panel attorneys are remarkable and consistently excellent,” she says. “I appreciate the complexity of the law and the demands on these attorneys. Because they are so experienced, they ably provide the information and advocacy that permits the court to make informed decisions in these very consequential proceedings.” As a state and city, we must provide qualified attorneys with reasonable caseloads to represent our families and children. We are not meeting the state’s mandate because the state is not

funding it. Failure to provide effective counsel only costs more as our foster youth enter a pipeline to either prison or intergenerational neglect and abuse. Similarly, without experienced counsel skilled at guiding parents through a complex legal system, parents will fail to access services that will help them solve the problems that brought them into dependency court. None of the families interviewed trust anyone but their lawyers, who are often called upon to deliver difficult messages. Clearly, continuity of qualified counsel is important to the success of our children and their families; legal representation of minors lasts until the child reaches adulthood or is reunified with the family or adopted. A cadre of passionate, dedicated San Francisco attorneys has done a great job with an underfunded budget, but if the projected cuts become a reality, San Francisco and its families will suffer unwanted, avoidable consequences that will take far too many years and dollars to rebuild.

A Call to Action: Your letters of support are needed. To find out how you can help, please contact Julie Traun at jtraun@sfbar.org. She will provide you with contact information for your elected officials and sample letters of support. Julie Traun is a criminal defense attorney and the director of BASF's Lawyer Referral and Information Service's Court Program. She can be reached at jtraun@sfbar.org. Notes 1. US Department of Health and Human Services, Administration on Children, Youth, and Families; issuance date January 7, 2017; http://www.cssp.org/media-center/blog/text/LR.IM.Final.Clean.FINAL. pdf. 2. Soaring Caseloads, Flat Funding Crush Dependency System; May 28, 2015; https://www.aclusocal.org/en/node/1925. 3. https://www.aclusocal.org/wp-content/uploads/2015/05/DependencyCourtsWhitePaper-CA.pdf. 4. The Judicial Council allocation methodology calculates that $202.9 million is required in statewide funding; the current funding is $114.7 million. http:// www.courts.ca.gov/documents/tcbac20170413-materials.pdf. 5. Funding for dependency counsel is allo-

cated by the Judicial Council, which seeks only $22.4 million of the $88.2 million dollar need. 6. Need is defined as “funding sufficient to bring caseloads to 141 [per] attorney.” 7. US Department of Health and Human Services, Administration on Children, Youth, and Families; issuance date January 7, 2017; http://www.cssp.org/media-center/blog/text/LR.IM.Final.Clean.FINAL. pdf. 8. The Economics of Child Abuse, A Study of San Francisco, https://sfcapcorg.files.wordpress.com/2017/01/economicsofabuse_report_sfcapc1.pdf. 9. The Economics of Child Abuse, A Study of San Francisco, https://sfcapcorg.files.wordpress.com/2017/01/economicsofabuse_report_sfcapc1.pdf. 10. Heidi Heissenbuttel, CEO, Sewall Child Development Center, PBS NewsHour, “Making the Grade,” March 21, 2017, “Inclusive Wellness Center Is an Oasis for a Neighborhood Left Behind”; http://www. pbs.org/newshour/bb/inclusive-wellnesscenter-oasis-neighborhood-left-behind/. 11. How Poverty Changes the Brain, The Atlantic, April 19, 2017, https://www.theatlantic.com/education/archive/2017/04/ can-brain-science-pull-families-out-ofpoverty/523479/. 12. The Economics of Child Abuse, A Study of San Francisco, https://sfcapcorg.files.wordpress.com/2017/01/economicsofabuse_report_sfcapc1.pdf.

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 45

THE NEW SOLO

T Rose-Ellen Fairgrieve

here was a time when I was way ahead of the technology game. My dad was an early adopter of the TRS-80 desktop microcomputer launched in the late 1970s and sold by Tandy Corporation through its Radio Shack stores. He used it to manage the database for the summer school he ran and I helped him enter the data. I came to know the students whose last names started with A through D really well, since we kept losing all of our data when we started out. I learned my way around the TRS-80 pretty well. In seventh grade, I typed a school paper on it and got an A+ just because my teacher was so blown away by the fact that it was right justified and contained no typos. I even did some programming in college. Then something happened on the way to practicing law. In law school, I received the “ten hours of free Internet” CD in the mail from AOL, and had no idea what I might need ten hours of the Internet for. Let’s just say I haven’t come very far since then.

46 SUMMER 2017

But starting my own firm forced me to get back up to speed. I’ve become obsessed with podcasts that dispense law practice management advice and recommendations for nifty apps. I get particularly excited about podcasts that have great tips that can save me five minutes here or there. Enter Adriana Linares. Linares hosts a monthly podcast called “New Solo” on the Legal Talk Network. She gives advice and encouragement to attorneys who are going out on their own by interviewing attorneys who have “been there.” In her day job, she is the owner of Law Tech Partners, a company that provides legal technology consulting and training to law firms large and small. The Bar Association of San Francisco’s Solo and Small Firm Section was fortunate to have Linares as the keynote speaker at its first annual conference on February 9.

WHY EMBRACE TECHNOLOGY IN YOUR LAW PRACTICE? Though Linares has been in the legal technology field for twenty years, she says her experience after Hurricane Katrina in 2005 drove home the importance of embracing technological solutions. She knew of countless attorneys who suffered professionally by losses sustained during Katrina. The solo and small firm attorneys whose practices survived the disaster were those who had embraced technology in a way that allowed them to recover their data quickly. Another huge upside to embracing legal technology, Linares touts, is that it allows an attorney to start a law practice for very little money. In this way, a solo attorney can keep costs down while building up a client base. The availability of law practice management applications in the cloud enables attorneys to work from anywhere, meaning they don’t have to have a full-time office to conduct all of their business. Many practice management programs fall into the range of about seventy dollars per month. Simple document storage options, such as OneDrive, Dropbox, or Google Drive, are available for much less (but don’t use the free versions for your law practice!).

Additionally, by embracing technology, attorneys can put systems in place to help them avoid common ethics complaints. For example, conflicts of interest should be easily avoided with a searchable database that contains information about prior clients and cases. Administrative errors can also be avoided by taking advantage of document automation—programs that allow attorneys to begin new documents without copying and pasting from a document that contains another client’s information. Even an old-school program like Microsoft Excel can help attorneys avoid math errors, and, according to Linares, should be used for any and all math required for casework (she must know we all became lawyers to avoid doing math).

WHAT SHOULD YOU EXPECT TECHNOLOGY TO DO? As a legal tech consultant, Linares helps firms find programs that best fit their practice. Here are some key features she says are important to consider: Linares recommends attorneys use a “matter-centric system.” Such a system will attach every part of an attorney’s day to a client matter. This includes appointments on the calendar; documents the attorney works on; and time entries the attorney makes. These features have the obvious benefit of helping an attorney stay organized and bill clients efficiently. They also allow a firm to analyze how attorney time is being spent and other important metrics without having to search for the information. Another feature that attorneys can use to operate more efficiently is automation. Linares says that everything predictable and repeatable should be automated. She recommends using a client intake form that can be completed online by the client or by the attorney while speaking with the client. Once completed, the information from the form can then be entered into the attorney’s system. Building on that, when the attorney needs to create a letter to the client or a pleading, the program will take information from the appropriate fields and merge it into the document template. This can be accomplished using practice management systems like HotDocs or TheFormTool. THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 47

Adriana Linares (second from left) with guests, recording an episode of her podcast, New Solo, in BASF's member lounge during the February 9 Solo and Small Firm Conference.

PODCASTS & MORE

For more practice tips, check out the following podcasts and recordings, recommended by solo and small firm attorneys:

LEGAL TALK NETWORK Visit legaltalknetwork.com to find the following podcasts and more: New Solo, hosted by Adriana Linares; Lawyerist, hosted by Sam Glover and Aaron Street; and the Un-Billable Hour podcast, hosted by Christopher T. Anderson.

Vitally important is maintaining the security of your information. Linares informed us that California has a public breach database. Under certain circumstances, attorneys have to report publicly when they have had a data breach. This could happen if the attorney loses a device, has a breakin at the office, or experiences a ransomware attack. How ever, attorneys can protect themselves by using encryption on their devices. That way, they may fall into the “safe harbor” provision under which they do not have to make a public report of the breach. Linares says there are many security vendors who specialize in the legal space. She recommends, at a minimum, that attorneys use encryption, which is stan dardly available in Windows (BitLocker) and Macs (File Vault). (Note, if you do have a data breach, you should not rely on this article to determine your reporting obligations!) Further on the topic of security, Linares recommends communicating with clients through client portals. Many practice management programs have a way to communicate with a client through the program, thus avoiding email. (One guest on her podcast said you should not write anything to a client in email that you would not write on a postcard.) Within a client portal, you can send secure messages to your clients and send links that your client can use to upload documents directly and securely. You can also send draft documents back and forth that way.

TIPS AND TRICKS THAT CAN SAVE YOU TIME RIGHT NOW LIFE OF THE LAW Visit www.lifeofthelaw.org to listen to and subscribe to this award-winning PRX (Public Radio Exchange) production featuring investigative reports and discussions and live storytelling about "all things law."

TECH TUESDAYS Log in to your BASF account at www.sfbar.org and access the Solo and Small Firm Resource Center, where you can find numerous recordings of Tech Tuesday webinars.

48 SUMMER 2017

Linares has some specific tools that you can easily implement to save time right away. The easiest, quickest one, which even I could manage to implement within seconds, is managing the built-in autocorrection feature (also known as macros). I can’t count how many times I’ve typed (c), only to have it turn into ©. Now, yes, you can hit the delete key to fix it, if you happen to notice it before you’ve typed beyond that. Otherwise you’ve got to go back and correct it. We’re not talking saving hours here, but it is an annoying interruption. Also, you can use autocorrection to save time typing text that you frequently type, such as your name or phone number. For example,

I just added an autocorrection so that when I type REF, it corrects to Rose-Ellen Fairgrieve. What’s more, I put this into Word, but it carries over into Outlook as well. If you really want to go crazy, you can go beyond what’s built into your word processor and use an app such as Text Expander for Mac or Breevy for Windows. These will give you the advantage of working across all your apps and are better for large blocks of text. Can you imagine dropping directions to your office into an email by typing “dir” instead of opening the file where you store the text and copying and pasting? Another quick tip from Linares is to use the clipboard available in Word. The clipboard saves up to twenty-four pieces of text that you have copied, and you can select from them to paste into your text. The clipboard works across Microsoft Office applications, so you can copy text from Word and paste it into Outlook or Excel from the clipboard. This is especially great when you’re working with different snippets of text that you want to select from, such as your top

three discovery objections. Other basic efficiency-increasing tools Linares recommends are dictation software, or speech recognition (get to know Siri), and online calendar tools through which you can send a link to allow others to schedule time with you, such as Calendly or Doodle. It’s easy to find directions for any of these simple tips and tricks online. If I can figure them out, so can you. There are many ways that technology can help keep your firm organized and efficient. If it’s too overwhelming to figure out where to start, even a couple hours with a legal technology consultant could set you on the right path. Rose-Ellen Fairgrieve owns Fairgrieve Law Office, which advises employers on labor and employment law matters, and defends employers in actions brought by employees. She is cochair of BASF’s Solo and Small Firm Section.

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 49

FOUR DAYS IN CUBA

V Kathleen Guthrie Woods

50 SUMMER 2017

ibrant, captivating, beautiful, and complicated. All of these descriptions of Cuba evoke a country in dramatic transition, possibly from a one-party socialist government to a market-driven democracy. The recent reinstatement of diplomatic relations between the United States and Cuba presents opportunities for businesses, nonprofit organizations, and individuals to explore, and The Bar Association of San Francisco (BASF) saw an opening. This past February, several members took advantage of the newly restored amicability to embark to Cuba’s capital, Havana, for four days of tourism, education, and cultural enrichment. “It wasn’t a hard sell,” says Merri Baldwin, BASF’s president, who had previously enjoyed traveling in Latin America and saw the potential in visiting Cuba. “We wanted to provide a rich, diverse, and valuable experience,” she says, one that included glimpses into Cuban life as well as courses for CLE credits. A cross-cultural exchange was organized by Cuba Cultural Travel, an agency that specializes in educational tours for attorneys, and the trip exceeded everyone’s expectations.

The BASF group after arriving in Havana, Cuba, in February 2017, for a cross-cultural exchange

Understanding the History Cuba consists of an archipelago of islands just ninety-three miles from Key West, Florida. (For perspective, a drive from San Francisco to Sacramento along Interstate 80 is eightyeight miles.) The population in 2017 is estimated at 11.3 million. Health care and education are free for everyone, and in 2013, 27 percent held university degrees, and an astonishing 99 percent were literate. “I learned that Cuba is a complicated country with a lot of plusses and minuses,” says Teresa Caffese of the Law Offices of Teresa Caffese, who participated in the trip. Plusses she mentions include music “literally flowing from the streets” and “incredibly resourceful, very welcoming” people. The minuses, though, are impossible to ignore, and range from poor air quality to disheartening poverty and a history of human rights abuses. The country’s “cold” relationship with the United States has begun to thaw only in the last few years. When Fidel Castro seized power in 1959, Cuba became a one-party socialist state under communist rule and aligned with the Soviet Union. In the early 1960s, the United States and Cuba challenged each other in the Bay of Pigs (1961) and Cuban Missile Crisis (1962), President Dwight Eisenhower “severed relationships,” and the Kennedy administration enacted an embargo on imports and exports. Tensions remained strained, and in 1982, the US Department of State officially designated Cuba as a “state sponsor of terrorism.” As a result, US banks would not lend money to companies that wanted to do business with Cuba. A number of events in the 2000s played key roles in shifting the relationship, starting in 2006 when Fidel temporarily transferred presidential powers to his brother, Raúl, then made it official in 2008. In December 2014, the embargo was relaxed to allow limited commerce. The administration of President Barack Obama removed Cuba from the terrorism list in May 2015, paving the way for possible economic investment, and in July of that year, as domestic relations

between the two countries resumed, they each reopened embassies in the others’ capitols. President Obama and First Lady Michelle Obama visited in March 2016, the first time a sitting US president had visited Cuba in eighty-eight years. There is much speculation about what is to come, from the possibility of Cuba’s willingness to institute new marketoriented economic policies, loosen trade restrictions, and open its doors to tourists. This seemed like an ideal time to consider and explore the opportunities and challenges. “I had a vague, limited notion [of Cuba], based on literature and film, plus coverage of the Obama visit,” says Baldwin. This trip allowed her and her fellow travelers to go beyond their assumptions and be educated by speakers who live and work in Cuba.

Enlightened and Informed CLE Courses “I was surprised at how little we learn and know about Cuba, the history, the culture.” Baldwin says. “All the presenters were more knowledgeable about the United States [than we were of Cuba].” Through four courses for CLE credits, participants gained a better understanding of the issues that have exacerbated relations between the United States and Cuba, as well as an overview of how the Cuban government has changed in recent years and is continuing to evolve. As an author, historian, and chief editor of Temas, a publication focused on social sciences and humanities, Rafael M. Hernandez provided a thought-provoking presentation on “Cuba in Transition: The Rule of Law as Part of Cuban Reforms.” He described a complex and highly politicized society—one in which there is no Internet access, mobile phones, or emails—and posed questions about Cuba’s pos-

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 51

La Historia de Laura (Laura’s Story)

aura Castellanos was two years old when her family left Cuba in 1961, and she had not been back since “as a matter of family respect.” After her parents passed away, she and her partner Teresa Caffese looked into traveling there and learned that having dual citizenship didn’t make it easier. “Going on a Cuban passport was dicey until Obama changed restrictions on travel,” she says, and that’s when she and Caffese starting thinking seriously about planning their visit. “Fast-forward to the BASF trip.” The timing worked. She went through a special visa process and pulled out her original Cuban passport. “Big eyes, lots of curly hair,” she says. “I’m not much different, just the hair is grayer,” she says in her engaging good humor. “The visa came through, and we had one week to get ready to go.” That gave her little time to prepare emotionally. “When you grow up as an immigrant, especially as an exile, a refugee, you grow up on the hyphen: Cuban-hyphenAmerican,” she says. “You never feel you fully embody one or the other. I always had a fear I’d never be Cuban enough.” She reflected on this as the plane approached its destination. “I was taking photos out the window as we were landing and I started to cry,” she says. Once she was out and about in Havana, speaking Spanish, Cubans stopped her to ask, “Is this your first time back?” When she replied yes, “Eighty percent of the people hugged me and welcomed me home,” she says, “then we got into wonderful conversations.” The trip was profoundly personal for her. She hoped to experience recognition, in a scent or a sight. She hoped to validate her own memories. “I found the hospital where I was born, the university where dad got his medical license, the first apartment my parents lived in, where I was brought home, the last home before we left.” Indeed, she went home again, and, “I got off the hyphen.”

52 SUMMER 2017

sibly reembracing capitalism and a market economy. In his presentation “Dispute Resolution and the Craft of Judging in Cuba,” Narciso Cobo Roura offered an insider’s view of the country’s legal system. A professor of law at the University of Havana and a former judge on the People’s Supreme Court, Cobo Roura gave an overview of the constitution and access to justice (it’s free; there are no fees), and introduced applicable laws and international conventions. Gregory Biniowsky is an attorney with the Canadian-based law firm of Gowling Lafleur Henderson. He moved to Cuba more than twenty years ago, has taught at the University of Havana, and consults with companies and philanthropies that are exploring opportunities in Cuba. He shared some of his insights into Cuban society, the evolving political landscape, and the fast-changing business and investment environment in his lecture, “Foreign Legal Practice, Investment Opportunities and Challenges.” Juan Alejandro Triana is a professor at the University of Havana. In his presentation on “Economic Law and the New Cuban Economy,” attendees learned that the economy, with a 2013 gross domestic product (GDP) of US$65.8 billion, is dominated by exports of sugar, tobacco, coffee, and skilled labor. Triana addressed Cuba’s special regulations and licensing for cooperatives and self-employment. He also looked at the rise of entrepreneurship in this decade, the country’s need for foreign investment, and the optimism behind the National Development Plan 2030, which endeavors to develop opportunities in construction, telecommunications, energy, transportation, agriculture, biotechnology, and tourism. “Based on the presentations,” says Ray Marshall, a partner with Sheppard, Mullin, Richter & Hampton, “I came away with a greater appreciation for the rights and freedoms we enjoy,” specifically individual worker rights, and the freedom of speech and association, for Cuba’s economy is still state controlled. He also gained a new perspective about the two countries’ shared history. “In America, we think of Cuba as unnecessarily hostile: communist, pro-Russia. But in listening to their perspective, US policy has been quite hostile.” The embargo, the attempted assassinations of Fidel Castro,

Impressions from BASF's journey to Cuba. Top right, BASF Executive Director Yolanda Jackson and 2017 BASF President Merri A. Baldwin. Photos by Merri A. Baldwin and Dawn Lloyd

and the policies that affected their economy, “they see these as acts of aggression,” Marshall says. “We often don’t stop to see how our actions are perceived out of our lens. How would we react if a country was doing this to us?” Interacting with individuals is frequently mentioned as a highlight of the trip. “People to people is great,” says Marshall. “They’re fun, engaging.” Russ Roeca, a partner at Roeca Haas Montes de Oca, concurs. “What impressed me most about this trip was the warmth, beauty, and generosity of the people toward Americans,” he says. “This is something that was always inculcated by [Fidel] Castro: Americans are wonderful, it’s simply the government that they so mistrust.” From his interactions with the Cuban people and presenters, Roeca formed some new opinions about future relations. “It is so clear from our visit that the US embargo and the sanctions imposed by the US should be in the proverbial dustbin of history,” he says. “Cuba is not a one-sided story,” says Laura Castellanos, who works in financial services with AssetMark and traveled with Caffese, her spouse. (Read Castellanos’s personal

story on page 52.) “Many years ago, Teresa and I went to Vietnam. It’s more than a country or a place, it’s a history that defines the US, and Cuba is like that.” More eye-opening and educational experiences came from adventures in and around Havana. Included on the itinerary was a tour of mural artist José Fuster’s home and studio, concerts that celebrated Cuban music, and a visit to Plaza de la Revolución, the center of the government. Other highlights were visits to Finca Vigía, Ernest Hemingway’s home in San Francisco de Paula, and Cojímar, the fishing village featured in his Pulitzer Prize–winning novel, The Old Man and the Sea. Free time allowed for visits to a cigar factory store and the world-famous Tropicana nightclub. On the final day, the group was privileged to attend an informative, candid, and off-the-record briefing at the US embassy. “It was awesome,” sums up Castellanos. Although she’d read a lot of history prior to the trip, she felt she learned so much more from the presentations. “I wanted to stay as open as possible,” she says. “The lectures provided a healthy span of perspectives on the situation in Cuba today, THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 53

potential for the future, also a look back at how it became what it is today.”

Looking Forward As the participants reflect on their experiences in Havana, they’re considering how they might contribute to the evolving US–Cuba relationship. American companies will need guidance in navigating rules, regulations, and licenses if they wish to do business in Cuba. Castellanos plans to start a consultancy, one that will help Cubans adjust to greater economic freedoms. “The change coming, it’s what people want,” she says, and “it’s a double-edged sword.” She gives the example of using credit. “It’s new to them,” and there will be challenges. There is encouragement to be found in the spike of tourism following Obama’s lifting of travel restrictions, allowing more Americans to visit, to explore the contradictions, to experience the country’s beauty, and to meet the people face

54 SUMMER 2017

to face. “It’s definitely on the list to consider a return trip,” says Baldwin, and in addition to giving more BASF members the opportunity to go, she’d like to explore areas outside Havana, get out to the countryside and coastal a reas. Having read more about Cuba following the first trip, “I’d return with different questions,” she says. Many questions remain about the future of US–Cuba relations, and the participants of this trip remain optimistic. “The best way to succeed,” Triana offered in his presentation, is “effective and continued interchange, patience, and persistence.” Kathleen Guthrie Woods has been contributing feature articles to San Francisco Attorney magazine since 2010. To read more of her work, search for “Guthrie” on the BASF website, www.sfbar.org

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TOP FIVE THINGS

TO CONSIDER WHEN EVALUATING A LEAVE OF ABSENCE CLAIM

Rose-Ellen Fairgrieve and Dean Royer

mployee leave laws can be a complex minefield. There are federal, state, and local laws that govern various protected employee leaves. This article provides an overview of situations in which em ployees may be entitled to time off and suggests the top considerations for plaintiff’s attorneys when evaluating a potential leave of absence claim.

OVERVIEW OF LEAVE LAWS The Family and Medical Leave Act of 1993 (FMLA) protects the right of employees to take protected leave in the event of the employee’s own, or a family member’s, serious health condition; in the event of a new child coming into the employee’s family; or for a family member’s exigency in active duty military status. FMLA provides up to twelve weeks of leave for a health condition or new child, or up to twenty-six weeks for caregivers of military family members. FMLA applies to employers who have fifty or more employees within a seventy-five mile radius, and to

56 SUMMER 2017

employees who have been employed by the employer for at least a year and who worked at least 1,250 hours within the year before the leave. The California Family Rights Act (CFRA) provides up to twelve weeks of leave for bonding with a new child and in the event of a serious health condition of an employee or family member. However, it excludes pregnancy-related disability from its definition because California’s pregnancy disability leave (PDL) applies in that instance. The CFRA has the same threshold requirements as FMLA for em ployers and employees. For employees in California who work for employers with five or more employees, there is PDL. PDL provides an employee who has a pregnancy-related disability with up to four months of protected leave. Employers with five or more employees also may be required to accommodate an employee’s leave of absence related to a disability under the Fair Employment and Housing Act (FEHA). Whether an employer must grant such an accommodation involves a fact-intensive analysis.

All employers are subject to paid sick leave laws. These California and municipal laws (for example, San Francisco’s and Oakland’s) entitle employees to accrue and use a certain number of paid sick days. California also has many lesser-known protections for employee leaves. Situations covered include: • Jury duty • When a crime victim or family member of a crime victim must appear in court or to respond to a subpoena • When a victim of domestic violence, sexual assault, or stalking needs time to obtain relief, such as a restraining order, or to protect a child, or to obtain other types of assistance • When a volunteer firefighter, reserve peace officer, or emergency rescue personnel perform emergency duties • When a parent or guardian must appear at school for a child who is suspended • When a parent must take time off to enroll a child in school or a childcare provider or to address a childcare provider or school emergency • When an employee is called to active military duty

• When an employee donates an organ or bone marrow The leaves discussed above, aside from sick leave, only set forth the rights of an employee to take unpaid time off. The employer can always allow employees to use accrued leave, and under some of these laws the employer can actually require the employee to use accrued sick leave or vacation. Moreover, an employee who takes time off to bond with a new child or to care for a seriously ill family member may also qualify for partial wage replacement through California Paid Family Leave (PFL). San Francisco requires certain employers to supplement an employee’s PFL so that the employee will receive full wage replacement for up to six weeks. An employee must provide reasonable notice of the need for a leave to the employer. Many leave laws also require employers to provide or post notices to their employees of their right to take leave. The protected aspect of these leaves is that the employee is entitled to return to the same or an equivalent position after the leave and that the employee maintains any benefits that the employer usually provides during the leave, such as health benefits. Additionally, employers cannot retaliate against an employee who uses or THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 57

asks to use a protected leave. In sum, there are many protections for employee leaves of which an employer must be aware, each with its own requirements and nuances. That is why legal counsel is important to any employer who is considering denying an employee’s leave request.

EVALUATING A LEAVE OF ABSENCE CLAIM Handling a leave of absence claim requires consideration of multiple issues, just like any legal claim. What follows is a discussion of five issues:

1. TYPES OF CLAIMS First, what types of claims are available? FMLA and CFRA claims arise when the employee requests or takes leave after reasonable notice to the employer, and the employer refuses to grant leave or takes retaliatory adverse action. A request for leave as a reasonable accommodation under FEHA gives rise to a claim if the employer takes retaliatory adverse action. Americans with Disabilities Act (ADA), PDL, and FEHA disability claims exist when the employee’s disability was a substantial motivating factor for or “but-for” cause of the adverse action. Uniformed Services Employment and Reemployment Rights Act (USERRA) claims require a showing that the employee’s service in the uniformed services was a motivating factor in the employer’s adverse employment action. Paid sick leave law violations occur when there is a failure to provide accrued paid sick leave or retaliation against employees who use or attempt to use accrued sick days. Labor Code retaliation claims arise when the employee’s protected activity (for example, taking leave for jury duty) was a substantial motivating factor for adverse action.

2. VENUE

Second, in which venue can you present the claim? Is there an enforceable arbitration agreement? Absent an enforceable arbitration agreement, the choice is between an administrative agency and court. In terms of the former, the Equal Employment Opportunity Commission (EEOC) has juris58 SUMMER 2017

diction over ADA claims. The federal Department of Labor (DOL) takes FMLA and USERRA claims. California’s Department of Fair Employment and Housing hears CFRA, PDL, and FEHA disability claims. The Division of Labor Standards Enforcement (DLSE) has exclusive jurisdiction over California’s paid sick leave law, and can also hear Labor Code retaliation claims. Finally, San Francisco’s Office of Labor Standards Enforcement considers San Francisco’s paid sick leave claims. If you present the claim in court, you will need to decide whether to file in federal or state court.

3. ADMINISTRATIVE EXHAUSTION Third, are there any administrative exhaustion requirements before presenting the claim to an arbitrator, administrative agency, or court? Employees of California state and municipal agencies must satisfy the Government (Tort) Claims Act for Labor Code retaliation claims. There is no administrative exhaustion required for FMLA and municipal paid sick leave claims. ADA claims require filing a complaint with the EEOC within 180 days of the violation and receipt of a “right to sue” letter after the commission closes the matter. CFRA, PDL, and FEHA disability claims require filing a complaint with the California Department of Fair Employment and Housing (DFEH) within one year of the violation and obtaining the right to sue. Federal employees have their own administrative exhaustion requirements. For ADA claims, they must contact their agency’s Equal Employment Office (EEO) within 45 days of the violation, after which the agency investigates the complaint. The matter can only proceed to the EEOC or federal court after the agency makes or fails to make a decision within 180 days from when the complaint was filed. For USERRA claims, federal employees must file a claim with the US Department of Labor, after which the matter may proceed to the Merit Systems Protection Board.

4. STATUTES OF LIMITATIONS Fourth, the statutes of limitations vary widely for leave claims. An FMLA claim carries a two-year limitations period (three years for a “willful” violation) for commencing either the administrative or arbitration/court proceeding. An ADA claim must be filed within ninety days of receiv-

ing the right to sue. USERRA claims have no statute of limitation, but the doctrine of laches may apply. CFRA, PDL, and FEHA disability claims must be commenced in arbitration or court within one year of receiving the right to sue. Sick leave claims must be presented to the DLSE or court within three years of the violation. Labor Code retaliation claims must be commenced with the DLSE within six months of the violation. In court, the limitations period can be as short as two years from the retaliation.

5. REMEDIES Finally, which remedies are available? Lost compensation can be claimed under all of the laws. Actual damages (for example, costs of medical care) can be claimed under FMLA. Liquidated damages are claimed under FMLA and USERRA (except against federal employers). Emotional distress damages and punitive damages (against private sector employers) can be claimed under ADA, CFRA, PDL, FEHA, and Labor Code retaliation claims. Withheld sick leave pay and administrative penalties can be claimed

equal to three times the withheld pay under the California and San Francisco sick leave laws or a civil penalty up to $1,000 under Oakland law. A civil penalty up to $10,000 can be claimed for Labor Code retaliation claims. Finally, attorney’s fees and costs are available under all of the laws except the California sick leave law and Labor Code retaliation claims. Rose-Ellen Fairgrieve owns Fairgrieve Law Office, which advises employers on labor and employment law matters, and defends employers in actions brought by employees. She is cochair of BASF’s Solo and Small Firm Section. Dean Royer has a solo practice exclusively representing plaintiffs with employment matters. He has twelve years of experience in this area of law, including discrimination, retaliation, wage and hour, and leave of absence claims.

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THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 61

AVOIDING DISQUALIFICATION WITH EFFECTIVE ETHICAL SCREENING

Y Daniel W. Hager

our firm wants to hire a lawyer with experience in your practice areas. Since lawyers switching firms can bring conflicts of interest that “infect” their new firms, and lead to disqualification, you run her previous clients through your conflicts software. You discover she worked briefly for a client in a case in which your firm is representing the adverse party.

Ethical Screening In California

The intention of ethical screens (or “walls”) is to prevent lawyers from sharing past client confidences that are material to matters at their new firms. In California, the use of ethical screens has not yet been sanctioned to avoid disqualification in all situations. They can, however, help encourage clients to give informed written consent to your representation. The key for any ethical screen is that it be timely and effective.

Ethical screening in California has, until recently, been limited to nonlawyers (such as legal assistants) switching firms, or to attorneys and judicial officers moving between the public and private sectors. However, in Kirk v. First American Title Ins. Co. (2010) 183 Cal.App.4th 776, one court expanded the possible use of ethical screening to the situation where an attorney had been provided

62 SUMMER 2017

Under the imputed disqualification doctrine, if one lawyer is disqualified from representing a client in a matter, the entire firm is disqualified. Before ethical screening, only the informed written consent of the former client could prevent imputed disqualification, based on an irrebuttable presumption that confidential information from the prior representation was shared with the new firm.

confidential information by plaintiffs’ counsel about serving as a consultant. He was not retained as a consultant, and later joined the firm defending the case. The California Supreme Court has not addressed whether expanded ethical screening is now permitted. The scope of Kirk’s application remains uncertain.

Best Practices These steps will, nevertheless, create an ethical screen that may rebut the presumption of shared confidences—and disqualification—where permitted: • Erect the screen as soon as possible and before the conflict arises—before the “tainted” attorney joins the firm, or before work begins on the new matter. • Give written notice to all screened persons and the entire firm—particularly those working on the matter—that the screen is in ef-

fect and what it entails, including follow-up reminders. • Prohibit any communication about the matter between the screened person and those working on it (lawyers and staff), and prohibit any access to files or other information about it. • Create as much physical separation as possible between those working on the matter and the screened person. • Use the best technology available to limit access to physical and electronic files for the matter (including document management software to limit electronic access); segregate and label physical files to prohibit access by the

regular partnership shares.

screened person. • Notify the affected former client of the steps taken, in writing; maintain a copy of that notice.

• Require that screened attorneys do not supervise attorneys handling the matter, and vice versa.

• Train all personnel on conflicts and screening procedures, including the penalties for breaching an ethical screen.

By taking these steps in a timely manner, you can reduce your firm’s risk of disqualification. Explaining to affected former clients that you have taken these steps may also increase the chance they will, based on those assurances, provide informed written consent to your firm’s representation.

• Have a trained person in charge of the creation and maintenance of all screens. • Maintain and preserve detailed records establishing all steps taken and when. • Preclude screened attorneys from sharing profits from the representation, other than salaries and

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

THE BAR ASSOCIATION OF SAN FRANCISCO SAN FRANCISCO ATTORNEY 63

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