Contra Costa
Lawyer Volume 33 Number 3 | May 2020
Inclusion in the Law
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Contra Costa 2020 BOARD of DIRECTORS Oliver Greenwood President Nicole Mills President-Elect Mika Domingo Secretary Dorian Peters Treasurer James Wu Past President David Erb Mark LeHocky David Marchiano Ericka McKenna Cary McReynolds Craig Nevin
David Pearson Michael Pierson David Ratner Summer Selleck Qiana Washington
CCCBA EXECUTIVE DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org
Lawyer Volume 33, Number 3 |May 2020
The official publication of the
features Racial Reconciliation, by Qiana Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Practicing Law While Asian, by James Wu. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 An Argument for Cultural Competency Training in the Legal Profession, by Hon. Benjamin T. Reyes, II . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Diversity Isn’t Enough, by Summer Selleck. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Barbara Arsedo Carole Lucido
Increasing Diversity in Contra Costa County’s Legal Community: A Pragmatic Approach, by Mika Domingo. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Jennifer Comages Anne K. Wolf
Launching Youth into Law and Leadership, by Nancy Schiff. . . . . . . . . . . . . . . . . 23
CCCBA main office 925.686.6900 | www.cccba.org LRIS & Moderate Means Director Communications Director Membership Director Education & Events Director
Emily Day
Systems and Operations Director
Contra Costa Lawyer
Lyft’s Commitment to Inclusion and Diversity, by Delphina Yuen. . . . . . . . . . . . .31 IOLTA Rules: Got My Money on My Mind and My Mind on My Money, by Mary Grace Guzman, MCLE Self Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
CO-EDITORS EDITORIAL BOARD Samantha Sepehr Ann Battin 925.287.3540 510.234-2808
Marcus Brown Matthew Cody 925.482.8950 916.718.8938
BOARD LIAISON Perry Novak Mark LeHocky 925.746.7278 510.693.6443 Marta Vanegas COURT LIAISON 925.937.5433 Kate Bieker Andrew Verriere 925.957.5600 925.317.9113
DESIGN Lorraine Walsh Carole Lucido 925.932.7014 925.370.2542 Christina Weed ADVERTISING 925.953.2920 R.W. Walker Co. 213.896.9210
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The Contra Costa Lawyer (ISSN 1063-4444) is published 11 times in 2020 – five times onlineonly – by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@ cccba.org. The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.
COLUMNS 4 FROM THE PRESIDENT: And Just Like That, Everything was Different, by Oliver Greenwood 5
INSIDE: Invested and Vigilant, by Mika Domingo, Guest Editor
28 ADVENTURES WITH ATTORNEYS: Future Tax Lawyers of California, by Christina Weed
NEWS & UPDATES 11
Welcome New Members
27
PHOTOS: Bay Area Women Lawyers Retreat
29
Board Nominations are Open
30
What You Missed in the April Issue
35
Classified Advertising
35 Advertiser Index 36
2020 Education Series: Your Law Practice Roadmap
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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from the
President
by Oliver Greenwood, CCCBA President
And just like that, everything was different COVID-19 has run a path of destruction through our society indiscriminately taking life and livelihoods, changing the way we interact with each other, work with each other and possibly the way we will move forward after this is all over. The first difference I notice is the concern about health. Most of us always said, “How are you doing?” without thinking, as an opening to a conversation, but now we mean it. We mean, “How are you doing? How is your family? Are you all safe and healthy? and Are you standing too close?” Next, how do we handle physical greetings? Our first thought when someone approaches us is no longer, “Hello!” it’s “Don’t come too close!” Shaking hands? Do we even do this anymore, or should we rub elbows or go for a jaunty tip of the hat? I am a fan of tipping the hat or bowing… a good regal bow sends a nice message. Our social interactions overall have changed dramatically. In the space of a month and a half we went from in-person meet and greets to meeting in virtual worlds (Am I my teenage kid? Is this just a crash course in technology for those of us that refuse to come up to speed?) Instead of our interactions being
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defined by… actual physical interactions, we are now focused on social distancing- a phrase we never heard of prior to the pandemic, but which is now seared into our national vocabulary. The idea of moving forward, of what happens next, is one that centers on questions like whether we will continue standing six feet apart? Will it ever be safe to touch a countertop again? How about touching my face? Side note: I honestly did not realize that I touched my face this much until I was told not to – it is as if everything that my mother told me would come true is coming true (first it was the kids being mini versions of myself, and now this! I am now just waiting for my face to get stuck in this position of distress – thanks Mom). Now and more importantly (ok, maybe not more importantly in the grand scheme, but you get the point), how has this shaped the practice of law? As with any “new normal” this has been an abnormal experience. The office as we know it might not be the office as we need it anymore. I have been surprised how quickly many of my clients have taken to online meetings–perhaps more quickly than me. While I enjoy the in person experience and believe my presence is quite amazing, my clients seem to be getting along just fine without me, although trust sign-
ings are a bit awkward (”Quite entertaining to watch,” said my spectating spouse). Of course, not everything can be done virtually– there are many out there that need to meet in person and cannot practice remotely, such as attorneys with clients whose very freedoms depend on their ability to meet with their clients and to advocate by their side. The courts have been quick to adapt to the remote technologies as well. I’ve been impressed with the level of concern for each individual and the concern to keep this essential service moving. Thank you to all who attended the virtual town halls. A special thank you for putting those on and to Judge Baskin and to all of the judges that participated. Thank you to everyone who sent ideas. I appreciate all of the input and passed it all along. I am cheering for all of us and I hope you are too. I hope that you and your families are well, in good health and that you continue to give me my space–at least six feet.
INSIDE Invested
and Vigilant
by Mika Domingo, Guest Editor The Contra Costa County Bar Association understands the importance of diversity and inclusion in the legal profession. CCCBA’s Diversity Committee’s goal is to promote and retain diverse individuals and firms to join the ranks in Contra Costa County. We do this through dedicated activities including a Diversity and Inclusion Initiative, the awardwinning Diversity Award Checklist program, a Diversity MCLE program called “Investing in the Future of Diversity,” a Judicial Mentoring Program, and networking events such as the Annual Lunar New Year and the Annual Networking with the Minority Bar Coalition. This year, the Diversity Committee is hosting its second Racial Reconciliation Forum. In this issue, Qiana Washington gives us a recap of last year’s Forum and what to expect this year in the Spotlight section. James Wu addresses current diversity in the Contra Costa legal community from the perspective of several attorneys. As an officer of the bench, Judge Benjamin Reyes II has experienced his own hurdles and in his article, he promotes a more welcoming environment for an increasingly diverse legal community. Summer Selleck reminds us that diversity and inclusion as a communication and an awareness issue, rather than a process, policy or culture systems issue can be problematic. She offers some ideas to promote inclusivity and best practices. In my article, I give an overview of the diversity of Contra Costa County and discuss pragmatic approaches to implementing diversity. The work that is done by Center for Youth Development as described by Nancy Schiff in her article gives
us a sense of the future in developing a path to higher education for minority youth. You’ll read about the efforts made by this organization among many others in Contra Costa County to increase the pipeline. Delphina Yuen writes about Lyft’s hiring practices and finally, although not a diversity topic but a timely topic nonetheless, Mary Grace Guzman writes about the new IOLTA rules. Thank you to all our authors for sharing your insight, Carole Lucido and Marcus Brown for your incredible work in putting this all together, and all our diversity advocates who understand that true diversity is never fully realized because the community in which we live is in a constant state of flux, and therefore, we must remain invested and vigilant about implementing best practices Mika Domingo, Founder of M.S. Domingo Law Group, P.C., represents clients throughout California in Estate Planning, Probate and Trust Administration and Litigation and Auto Injury. She is passionate about driving change within the legal community, having served on the State Bar of California’s Committee of Bar Examiners, and currently serves as CCCBA’s Board Secretary, Chair of CCCBA’s Diversity Committee, At-Large Governor for California Women Lawyers, Co-Chair of CWL’s Judicial Evaluations Committee and a member of CCCBA’s delegation for the California Conference of Bar Delegates. She enjoys guest lecturing and is an Adjunct Professor at San Francisco Law School and John F. Kennedy University College of Law.
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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Racial Reconciliation: A Pathway Toward a More Inclusive Contra Costa Legal Community By Qiana Washington Last June, the Contra Costa County Bar Association started a muchneeded dialogue on racial inclusion in our legal community. We instituted our first ever Racial Reconciliation Forum. The Forum grew out of a discussion a number of attorneys and judicial officers had during a 2018 diversity committee meeting. Diverse attorneys and judges alike shared stories about their experiences in our court system including being mistaken for criminal defendants and perceptions they were treated with less respect than the majority of their colleagues in the Contra Costa court system. Some expressed these experiences were not quite as marked in neighboring counties. The diversity committee felt compelled to take action because, in order to further our mission to increase diversity in our legal community, we must ensure members of diverse populations feel welcome, valued and respected.
I chaired a subcommittee consisting of several members committed to diversity and inclusion. Together, we organized a forum with stakeholders in the community who had been trailblazers in creating a diverse legal community. The speakers included Judges Benjamin Reyes II and Anita Santos, Public Defender Robin Lipetzky and District Attorney Diana Becton, as well as two former Contra Costa County Bar Association presidents who are partners in local civil firms, Philip Andersen and Robin Pearson. Forum participants were candid about their struggles as well as their triumphs when it came to addressing diversity within our legal community. I moderated the discussion by asking the panelists questions about experiences they had so generously shared with me. Afterward, attendees were allowed to present written questions I then presented to panelists. To close the evening, we had a mixer
The panel at last year’s Racial Reconciliation Forum
where attendees could have followup discussions with panelists of their choice and enjoy light snacks. If you missed the Forum, you can stream it online on the CCCBA YouTube channel at: https://youtu. be/GDRaTQexr84. This year, we are planning another enriching program to continue the discussion and work toward solutions. Our Forum hopes to bring together additional stakeholders in the Contra Costa legal community to have small group discussions with participants. The stakeholders will moderate the discussions and make sure all voices are heard. Attendees will not only receive MCLE credit for Elimination of Bias in the Legal Profession, but in a real way, we will be actively working together to eliminate bias in the Contra Costa County legal community. This year’s forum is scheduled for June 23, 2020 at 5:30 pm. Watch for your CCCBA “e-blasts” for further details.
Vanessa Candelaria, Judge Benjamin Reyes II, Judge Leonard Marquez and James Wu. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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Practicing Law
While Asian
– And Other Perspectives from our Members By James Wu Is the Contra Costa legal community diverse and inclusive? The answer is likely to be based significantly upon each individual’s experiences. To help foster and continue to promote a discussion about diversity and inclusion in our legal community, I personally reached out to various and diverse members of the CCCBA to contribute to this article. Thankfully, several (though not all) attorneys agreed to provide some insight into their experiences in our legal community and, importantly, what they are doing to make things even better. This article is not meant to be a panacea, but rather an opportunity to learn from each other and to continue discussions in our communities. I’ll start. Frankly, I’ve been fortunate to be able to develop a practice based in Contra Costa, and to be so involved with the CCCBA. Before I joined a Walnut Creek office of a large national firm, I did not have pleasant experiences practicing law “while Asian.” There were virtually no Asian American role models in large law firms, or in bar associations, except for the affinity bar associations. And, those affinity bar associations were focused primarily upon Silicon Valley or San Francisco. I sought a community of practitioners closer to home. Once I focused more on the CCCBA, I found a community. Is it diverse? No. Do I think it is inclusive? Yes I do, but it could be more so. Let me explain. Before me, there had never been a male Asian American CCCBA
President. In addition to Past President Audrey Gee, I am only the second CCCBA President of Asian descent in 85 years of the CCCBA. In fact, I wonder if there has ever been another Asian American male who served on the CCCBA Board. And, as I survey the pipeline, the future does not look good for Asian American representation on the Board. This is so because our legal community is just not that diverse. During the 2018 MCLE Spectacular, I had the opportunity to interview David Kelly, the chief legal officer of the Golden State Warriors. As I sat on that stage with Mr. Kelly, it was eye-opening to me that there were maybe 10 others in the room (out of nearly 300) who “looked like” either me or Mr. Kelly: Asian American, or African American. Simply, to promote diversity and inclusion, we need to focus on the pipeline of up-and-coming attorneys so that they get involved in the CCCBA and remain involved. Indeed, there are still those in our county who continue to display their bias through micro-aggressions, for example. Not long ago, I had a conversation that started with someone asking me where I was from. I responded: “Walnut Creek.” The inquiring party, then politely said, “Oh, I mean, where are you from before Walnut Creek.” To which I replied: “I was born and raised in Colorado.” The frustration started to appear on the inquiring party’s face at this point because, apparently, he was trying to ask where my ancestors came from.
Continued on page 10 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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out when unconscious bias surfaces when interacting with others.”
Practicing Law While Asian Continued from page 9
The COVID-19 pandemic has also given rise to folks taking potshots at Asian Americans as well. Longtime CCCBA member Jim Yu, a solo practitioner, provided his input regarding practicing law while Asian. Jim states that “many of the challenges stem from the ‘model minority myth.’ Asian-American attorneys are perceived as hard workers, not questioning superiors, and lacking in soft skills. This has hampered young attorneys’ rise at firms and their role in the cases that they work on.” Jim’s perspective focuses on stereotypes, as well as implicit bias. To combat some of her implicit bias, Erika Portillo, a Partner at Guichard, Teng, Portillo & Garrett, shared: “Not only in my legal practice, but in my personal life, I always try to monitor my own portrayals of racial groups and label them as stereotypical. I think of the positive interactions I have had with people from different ethnic groups/backgrounds. As an immigration lawyer I have that opportunity, as I have a diverse clientele. I always try to be mindful of what I say and how I say it. I listen to clients and their stories and learn about their culture. I avoid generalizations, and I speak
Erika, and her firm, also walk the talk. For the past two years, Erika’s firm has sponsored the East Bay Women’s Conference. “We think it is important to support women in different fields, including the legal community to help them succeed. We do a great deal of pro bono work for people of limited means, most of whom are immigrants and ethnic and racial minorities. In fact, this year I received an award in Mexico for my work here in the United States with immigrants and vulnerable people.” Additionally, her firm is quite diverse with an Hispanic partner, a Chinese partner, a Chinese “Of Counsel” member of the firm, and an Asian legal assistant. Erika further states that “one of our partners sits on the Board of Yours Humanly - an organization that supports education programs in Haiti, the Philippines, Cambodia, Puerto Rico and poor school districts in the Bay Area.” Erika opines that, “All of these efforts have definitely changed my outlook in my work. I am more receptive to new ideas and different cultures, which allows me to have more empathy and compassion for clients with different backgrounds.” Similarly, Jim Yu also wanted to express his thanks about the value of the diversity networking functions and said that he greatly benefited from a seminar about communica-
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tion with transgender clients that was presented by Summer Selleck, Dr. Stephen Carlson, and Professor Ora Prochovnick. Jim states: “It made me a lot more comfortable about approaching others and asking what pronoun they prefer.” Ryan Apperson, a solo practitioner who identifies as a “middle-aged” white male, candidly shared that he focuses on gender diversity due to being a father of a young girl growing up in the “#metoo” era. Ryan proactively seeks to empower females wherever possible. “I want to do any small part I can in building a world where my daughter can avail herself of every opportunity that is available to her male colleagues.” With respect to the CCCBA, Ryan is very proud that for the first time in three years, a woman is again leading the Barristers’ section and is very proud of colleagues like Mika Domingo and the awards she and her practice have received. Ryan continues: “I am also very close with and proud of the work my female colleagues are doing in the legal community. Indeed, I was mentored by, and owe the foundation of my practice to a female attorney.” Recruiting, hiring and retaining diverse employees is also a goal for Gregory Iskander, a veteran, and the office managing shareholder in Littler’s Walnut Creek Office. Specifically, Gregory states that he “has a very diverse office, but additional and continued diversity efforts are a must. My goals for 2020 are to not only ensure diversity in recruiting, but also, and importantly, to ensure that our diverse attorneys are able to thrive and develop their practice. Goals for 2020 include setting up business development training for diverse attorneys, as well as substantive training programs. As a veteran, I have already begun assisting in setting up an initiative for veterans (including disabled veterans) within the firm for both internal support in
personal growth as an attorney and development efforts.” For the CCCBA, Gregory recommends the following: “Continued diversity functions and gatherings, including the diversity awards, are a great way to keep diversity in our profession and the local bar as an important topic. I would like to see additional diversity recruiting events for local law schools, so that diverse law students can meet with CCCBA attorneys and help our recruiting and diversity efforts within the local bar.” Beth Mora, a solo practitioner who has a long history of volunteering her time to various community organizations focused on diversity and inclusion, points to a recent experience at the 2019 MCLE Spectacular that was similar to mine in 2018 as I summarized above, and Beth provides valuable commentary to further our legal community’s efforts on Diversity and Inclusion. I find Beth’s comments and challenge to us all as a great place to end this article, so that further dialogue and action will ignite. Beth states, in part: “I greatly enjoyed the dynamic MCLE Spectacular lunch presentation by Erwin Chemerinsky, Dean of UC Berkeley School of Law, An Amazing Time in the US Supreme Court. During the presentation, I took a moment to scan the room and was shocked that, though my immediate peers were diverse, the room itself was predominately white male. In that moment, I broadened my scope of view, wherein I recognized that, though we as a county bar have changed, in many respects we still have a great deal of work ahead of us. “For example, at my first Case Management Conference (“CMC”) in Contra Costa County in spring
2001, I was the only female attorney in the courtroom and the only race was Caucasian. This held true for countless years thereafter. However, in the last several years, the diversity in the courtroom has increased, making women and people of color no longer a rare sighting. I challenge senior attorneys to take your diverse associates to court, let them speak at a CMC or law and motion matter. “For each CCCBA educational occasion provided to our community, I challenge the Bar and each section to ensure a diverse member of our community appropriate for the matter has been offered an opportunity to contribute. “Recognizing there is an ethical obligation to promoting diversity and inclusion, there are countless additional manners in which we can all aid inclusion and diversity in the practice of law in CCCBA, which include: implicit bias education and workplace policies; implementing fair recruiting procedures; increasing diversity outreach; improving mentor and sponsorship programs; and implementing more flexible work environments. Inclusion and diversity are more than just words; it is action as well as conduct which welcomes and sends a message.” James Wu is an employment law attorney. Since 1996, James has been a guardian to employers by providing advice and counsel to reduce the risks of employment-related claims and lawsuits, and has been an advocate vigorously defending employers when claims do arise. James was honored to serve as CCCBA President in 2018 and 2019. To find out more, see www.linkedin.com/in/ jamesywu.
Attorney Jim W. Yu operates his own personal injury law firm with offices in Walnut Creek and Santa Clara. Erika Portillo is a partner at Guichard, Teng, Portillo & Garrett, with offices in Walnut Creek and San Francisco. She practices immigration law exclusively and is fluent in English and Spanish. Ryan H. Apperson is an estate planning and probate attorney in downtown Walnut Creek. Gregory Iskander is an employment attorney with Littler Mendelson, and is the office managing shareholder of Littler’s Walnut Creek Office. Attorney Beth W. Mora is dedicated to representing victimized employees. She is a zealous and skilled advocate for those facing a wide range of employment law issues.
Please join us in welcoming the following members to the CCCBA, who joined between December 19 and March 6, 2020. Lance Anderson
Mark Penskar
John Bengston
Melanie Proctor
Punita Bhasin
Jonathan Reymann
Yishai Boyarin
Jessica Riggin
Dustin Burton
Sarah Robbins
Jeremy Castro
Alexandra Saddik
Erik Christensen
Alexandria Sadler
Julian Davlin
Juhyun Joy Seo
Lauren Delucchi
Huaming Tang
David Kim
Joshua Taylor
Maria Valencia Autumn Miley-Boland Chelsea Wang Caitlin Wiley-Walker Nadia Maillard
CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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An Argument for Cultural Competency Training
in the Legal Profession By Judge Benjamin T. Reyes II1
There is no disagreement about the value and benefits of practicing law in a diverse legal community. Contra Costa County offers a rich resource of cultural diversity reflective of our international communities. The wealth of our collective experience and diverse backgrounds enriches our system of justice and supports an evolving and expanding jurisprudence of inclusion. Several law practices have recently embraced mandatory training in the area of cultural competency. They do this not just to satisfy MCLE credits for the elimination of bias, but to truly understand the clients they serve, the dynamic workforce that forms their practice, and the larger community in which they practice law. I write this article to encourage our legal community to make a commitment to cultural competency training as an essential component of a practice skillset. Prior to my appointment to the court, I practiced law for 24 years throughout the state. Most of my clients were public entities and elected officials who represented diverse communities. I was also a partner in a law firm that invested in cultural competency training. This investment not only enforced the 12
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benefits of diversity, but also resulted in developing satisfied clientele and increased financial opportunities. I practiced law before many courts that welcomed diverse practitioners. However, that was not always the case. Early in my career, I experienced a few salient encounters that suggested that some members of the bench lacked meaningful exposure to the rich cultural and ethnic dynamic of California, which in turn, resulted in manifestations of bias and insensitivity. These results were unacceptable then and are unacceptable now. During one of these early encounters, I appeared in court (outside of Contra Costa County) for a motion to confirm a settlement in a complex products liability case. When my case was called, I argued that my client’s settlement met the legal requirements for a finding of good faith and that the negotiated disposition was well “within the ballpark2.” Out of left field, the judge wanted to know if I was applying the “laws of China,” rather than the laws of California. He also jokingly questioned, on the record, if there were even ballparks in China.
As a Filipino-American, I was the only litigator who appeared to have Asian ethnicity in court. I interpreted these questions, and the manner in which they were asked, as an obvious reference to my ethnicity. I responded respectfully, but tersely, that I had submitted the controlling decisional authority. I then asked if the court required anything further. Perhaps, the acidic tone of my response betrayed my obvious displeasure with the inappropriate comments. The judge granted my motion, but with an admonishment to “watch my tone.” He was not expecting such an assertive reaction to what he believed was just a joke. I was indignant. This micro-aggression made me feel that the merits of my argument were questioned not on their quality, but because I am a member of an ethnic minority. I questioned the judge’s competency to sit on a bench that is supposed to serve all Californians. Indeed, the rules prohibit any judge from engaging in any “speech, gestures or conduct that would reasonably be perceived as bias or prejudice” based on race or national origin, among other things. (Code of Judicial Ethics Canon 3(B)(8))3.
More recently, in 2017, shortly after I was appointed to the bench, but before I was sworn-in, I sat in court to observe my colleague run a criminal calendar. Near the end of the calendar, a prosecutor approached me and asked me what case I was there for and if I knew the name of my public defender. He did not assume that I was court staff, an interpreter, or an attorney. It was unsettling to me that the prosecutor concluded that I was an indigent criminal defendant simply because I was sitting in court. I could not help but believe that the prosecutor inadvertently jumped to such a conclusion because I am a member of an ethnic minority. My colleague, Judge Hiramoto, saw what was happening at the time and introduced me as the newest judge in Contra Costa County. The prosecutor’s face betrayed his remorse. However, I never received an acknowledgement from the prosecutor for the insensitive welcome. Clearly, the Rules of Court require lawyers to refrain from manifesting by words or conduct bias or prejudice based on race, and national origin, against parties, witnesses, counsel or others.
I illustrate these two incidents not to shame two individuals. But, to suggest that the cultural bias that appeared over 25 years ago still exists in our legal community. Accordingly, I encourage us to engage in cultural competency training to promote a justice system that strengthens our rich cultural heritage. As California steadily becomes more diverse, it is essential that the legal community explicitly focuses on developing our collective levels of cultural proficiency. The ability to proficiently communicate across cultures and to value the unique differences among us is essential to serving clients. It is also essential to preserving a justice system that serves the community. To be effective, cultural competency training should require components on understanding cultural differences. It should also mandate reflective self-evaluation at individual and organizational levels. It would need to emphasize recognition of stereotypes and attitudes that would lead to bias. Finally, this training would need to be conducted regularly. Not just one time.
Continued on page 15
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Need help building your Family Law Practice? Join the Moderate Means Program! Many successful CCCBA family law attorneys got their start this way. You’ll help people who might not be able to afford an attorney while you learn and build your business.
Cultural Competency Continued from page 13
Investing in cultural competency training will help the legal community evolve beyond mere tolerance. It will help all of us create a welcoming environment that would greatly enhance the inclusivity of our system of justice. 1. The views expressed herein are my own and do not necessarily reflect the views of my colleagues on the bench, the administration of the Contra Costa Superior Court or the Contra Costa County Bar Association 2. Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488; Proposition 51. 3. As a postscript, this particular Judge retired after facing criminal charges and pending discipline before the Commission on Judicial Performance for multiple reasons.
Judge Benjamin Reyes was appointed to the Superior Court by Governor Jerry Brown in 2017. Prior to his appointment, he managed a public agency practice as a shareholder at Meyers Nave. He served as City Attorney of Pinole and Union City, and as general counsel for several Contra Costa public agencies. Judge Reyes participates in the court’s diversity and outreach committee, on the board of the California Asian Pacific American Judges Association, on the California Judges Association Administration and Technology Committee and on the Diversity Committee of the CCCBA. He is currently assigned to the Family Law Court in Martinez.
Contact Barbara Arsedo, LRIS & Moderate Means Program Director barsedo@cccba.org
(925) 370-2544
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Diversity Isn’t Enough by Summer Selleck An award, sometimes called a distinction, is something given to a recipient as a token of recognition of excellence in a certain field. One of the most iconic awards given out each year since 1927 is by Time Magazine for Man of the Year. In 1999, the title of Man of the Year was changed to Person of the Year, thus creating a pathway for a more diverse collection of possible recipients of the award. In theory after 1999, the award was no longer gendered and thus open to all people, although only two sole recipients since 1999 have, in fact, been non-males. Awards are interesting. The criteria for receiving them can be simple or can be complex. The ways for which a person is nominated could be formal or informal. Each award carries with itself a different set of rules and requirements. In the Amazon original series Fleabag, Phoebe Waller-Bridge characterized “women’s awards,” as “infantilizing bollocks… ghettoizing, a subsection of success.” If you chose to agree with WallerBridge, it follows that the same is true of awards for all minorities. It’s clear, an award is meant with the best intention – to draw a spotlight to the good work and fierceness of the recipient, but in some cases it can be a reminder of how inequitable the playing field really is for the person receiving it. The fact that we would still need to highlight someone based upon their diversity and not in lieu of it
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is an issue we in the legal profession will struggle with for years to come. Until there is equality, these types of awards will exist. Many times it feels like a Catch 22. Many legal colleagues characterized as diverse or as a minority in the legal profession, whether it be based upon race, gender, origin, etc., all grapple with being in the spotlight. It is one thing to rise in the ranks of a company and be the “it” person because you look different or represent an underrepresented group amongst the mostly male, usually Caucasian and straight partners. It can even be flattering to be the poster child for diversity and inclusion in the firm, the court, the county, or the office at times. However, there is also a pretty serious downside to being the face of diversity that presents itself when the inclusion ends with you.
The issue I see is that too many people see diversity and inclusion as a communication and an awareness issue rather than a process, policy, culture or systems issue. All of which needs to be addressed to achieve actual inclusivity.
Once you’ve climbed the ranks and passed all the struggles thrown at you due to your diverse background and bias in education, the profession and in hiring, it’s difficult at times when you feel like you’re being used to prove diversity exists, while also dealing with the internal workings of being likely one of the only people like you in the job. I’ve often asked myself if people think I’m where I am because I deserve it or because I check a box for the organization or group I represent. I can imagine I am not the only one. Diversity isn’t enough. Inclusion must be an equal priority to normalize diversity in the workplace so that it is not the exception but the norm. The issue I see is that too many people see diversity and inclusion as a communication and an awareness issue rather than a process, policy, culture or systems issue. All of which needs to be addressed to achieve actual inclusivity.
While best practices are always evolving, included here is a list of ideas to help promote inclusivity that should make diversity in the workplace become an integrated norm rather than a monthly spotlight. 1. Establish and clearly communicate specific, measurable and time-bound goals as you would with any other strategic aim. 2. Consider forming a council comprising a dedicated group of leaders in the organization. Inclusion initiatives can’t solely be the responsibility of the HR team or your organization’s Diversity and Inclusion group. It has to be embodied by everyone in order to really take hold. 3. There must be a whole organization buy-in to achieve Diversity and Inclusion. To create an inclusive culture, everyone from the
top to middle management to entry-level employees need to buy in. 4. One of the most important ways to show employees that you respect their backgrounds and traditions is to invite them to share those in the workplace. 5. Move beyond sensitivity training. Sensitivity training is an important part of the solution, but too many organizations use it one time and believe it will remove all risk of conscious and unconscious bias from their organization. Without the implementation of proactive measures, including an ongoing internal discussion, sensitivity training can easily end up being an experience that likely won’t resonate among employees.
6. Moving Target. When thinking about inclusion, small changes can have a big impact on how people feel. Be adaptable and listen to your employees. If each company, firm, court, and office can integrate these tips then we might well be on our way to getting more diverse people on the cover of Time Magazine and presented with awards that are offered to all candidates and not just diverse classes. Summer Selleck is a solo practitioner at S.C. Selleck Law in Walnut Creek, California. Summer practices primarily in the areas of Estate Planning, Probate, Will & Trust Litigation, and Elder Law.
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Increasing Diversity in Contra Costa County’s Legal Community:
A Pragmatic Approach
by Mika Domingo Promoting and retaining diverse individuals and firms to join the ranks in Contra Costa County is the goal of the Diversity and Inclusion Initiative, and the Diversity Committee of the Contra Costa County Bar Association. Why should firms care about increasing diversity? The answer is two-fold: it results in better representation for all the citizens of Contra Costa County and there should be financial and additional advantages for the practice. In our quest to diversify, though, some questions come to mind: How much should a firm diversify, and what does that even mean? Does diversifying only mean hiring more diverse attorneys and staff? What other ways can we increase diversity? Espousing diversity without implementation is meaningless, and the aim of this article is to offer some pragmatic suggestions for an approach to increasing diversity that is focused
How diverse is Contra Costa County? Contra Costa County is becoming increasingly more diverse. The last Census was in 2010, and data from that census revealed a population that was: American Indian or Alaska Native 1% Black or African American 9.5% Asian 16.8%
White 43%
Hispanic 25.8%
As we know, though, diversity means more than ethnicity, and the 2010 Census further reveals that: 36% of the population speak a non-English language 11.1% are non-U.S. citizens
51.1% of the population is women 15.8% are 65 and over1
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10%
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The 2020 census should reveal even more about our county, including the number of veterans, people with disabilities and income level, although that data will not likely be available for about two years. So what does this data tell us about our county and how can we use this to better serve our clients? Firms can use this data to begin to formulate strategies to identify and better serve underrepresented segments. This data is not the beginning and end of that work, however, because simply knowing someone’s broad ethnic category does not in and of itself tell you what you need to know to best serve them. For instance, knowing that a person is of Asian ethnicity does not tell you whether they are Indian, Chinese, Filipino or Japanese – all of which have very different cultural backgrounds and expectations. Even knowing someone’s specific ethnicity is not enough. For instance, a person who is a third or fourth generation citizen may have little in common with someone of the same ethnicity who has newly emigrated. This also does not mean that the make up of every firm should necessarily mirror the diversity spectrum of the community. It is human nature to feel more at ease
with people who share commonalities, but these common elements should transcend ethnic heritage or cultural background. Having a face that’s similar or speaking the same language may bring some comfort or reduce barriers, but it does not substitute for capability. Diversity should not be approached as a trait but as a skill, and skills can be developed or enhanced.
How can a firm expand its diversity to better serve its clients? Every firm should do a self-assessment that measures the firm’s diversity metrics, both internally and with regard to its client base. This will establish a baseline of the firm’s diversity. Measurements of diversity within the firm could include differences in ethnicities, culture, religions, gender, geography, experience, education, or any other parameters that relate to specific practice areas or client bases. This material should be obtained and handled with strict privacy considerations, of course. The firm should also measure the diversity of their clientele. Does the aggregate clientele reflect the diversity of the country? The client metrics will give a 10,000 foot view of the range and types of clients that the firm is attracting – and perhaps just as importantly, not attracting. Evaluations of this type could reveal that the firm is missing significant opportunities as well as neglecting legal needs of a large percentage of the population. Digging deeper into why certain populations are not being represented could reveal that perhaps the firm is seen as unfriendly to certain segments of the community, either because it does not do outreach or because it does not have the resources to accommodate those populations (access to native speakers, for example). As businesses have learned, if a firm does not have a strategy to attract
particular clients, then the de facto strategy can become self-reinforcing. For example, the legal community is heavily driven by referrals, so it can be expected that one client might bring in other similar clients as word spreads. That is, in fact, the hope – that one satisfied client leads to many satisfied clients. However, if your clients are bringing in more clients just like them, then there is no specific outreach to other types of clients, and over time a firm may have a sizeable number of clients from one demographic, giving the appearance that the firm is only focused on a certain demographic. Now, if the goal is to specialize in a particular practice area, that is a good thing, but if it results in a client base that becomes exclusionary on basis other than practice area (e.g., race, gender, ethnicity) then it becomes a problem to be remedied, as well as a potential new source of revenues when new clients are brought into the firm.
How can you improve a firm’s diversity quotient? Learn whether the client has culturespecificity issues. This approach is more meaningful with newer first or second-generation immigrants. The word Asian is used to classify ethnicity. It is too broad and generic to be informative or helpful. A Southeast Asian may have very little in common with a Northern Asian or one whose ancestry is along the Silk Road. Just in China alone, there are 56 distinct ethnic groups. Although Mandarin is the dominant and state language, there are 297 living languages in China.2 To refer to a client as Asian without understanding more of their culturally specific identity is to do the bare minimum in acknowledging their ethnicity and is a missed opportunity to better serve your client. To understand the different shades of cultural specificity, the best approach is to develop good relationships with your clients and really pay attention to the cultural
differences at play. Educate yourself about their background so that you may always serve them in a way that is respectful and will be well received. A little bit of focused effort can go a long way here. Communication is key in dealing with a diverse clientele, especially if someone is an “English as a Second Language” client. It is important to always consider their level of fluency, the size and breadth of their vocabulary and their level of comfort in letting you know whether they are understanding something. It is important to be aware that someone might not be understanding what you are telling them, but they also may not want to tell you that because they are embarrassed. If you have done an evaluation of your firm’s diversity metrics, you may know that you have someone on staff that can assist with different languages, and you can pull in those resources when necessary. Even when speaking in English, however, it is important not to assume that you and your client are understanding things in the same way. Words may have different connotations in different cultures. Even something as seemingly simple as the word “Yes” may mean different things. In some, it means, “I acknowledge that I heard and understood you,” and in others, it means, “I understand and agree with what you said.” Remember that non-verbal communication is often heavily used in other cultures, and this goes back to educating yourself about your client’s culture. For example, East Indians have a variety of head motions to indicate no, maybe, yes, hello, and thank you. Using the left hand to give things is improper in some cultures.
Hiring diverse attorneys and staff. The
most
common,
and
most
Continued on page 21
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Increasing Diversity in CCC Legal Community Continued from page 19
obvious, method of reaching out to different groups is to hire attorneys that are more knowledgeable about cultural, language and gender specific issues. The challenge in this approach is that the population of attorneys from diverse backgrounds is more limited, although that has been slowly changing. The California Bar reports that the percentage of women attorneys is now at 42%3, an increase of 11% over the last decade. The numbers for Hispanic and Black attorneys for 2017 stood at 5% each and Asian attorneys at 2%. This means that while progress has been made, there is still a shortage of diverse attorneys compared to the numbers in the general population, so diversity through hiring has limitations. One method of outreach is to hold an open house with a segment target community. Often if that segment of the population is large, they will have some organized social or cultural presence. Reach out and begin a dialogue.
What’s the strategic objective of the firm? Inherent in determining the firm’s diversity goals is knowing what its objectives are and why it wants to achieve certain diversity metrics. Not every firm needs to accurately reflect the diversity of the county, and it has to make financial sense unless the firm is willing to devote resources as part of its community outreach or pro bono services. So, for instance, a firm’s strategic objective may be to serve a certain segment of the population it has identified as a viable market, and in doing so, it may enrich the community even if by itself, the firm has a lack of diversity in its attorney ranks.
Diversity through inclusion The goal of diversity is to accept and acknowledge our differences, be they ethnic, religious, gender, value sets, or experiential. We have made great strides in improving the diversity of firms through hiring practices, but we can do more. We can improve diversity by focusing not on exclusion (i.e., by seeing people as “others”) but on inclusive practices, every day, by improving our communication skills, building relationships and learning about each other and our clients. Taking these steps will strengthen our understanding of each other and continue the momentum. We acknowledge our uniqueness and differences and still celebrate our commonality. 1. https://www.census.gov/quickfacts/contracostacountycalifornia 2. https://www.worldatlas.com/articles/ what-languages-are-spoken-in-china.html 3. http://www.calbar.ca.gov/Portals/0/documents/Advancing-Diversity-and-Inclusion-inthe-Legal-Profession.pdf
M i k a Domingo, Founder of M.S. Domingo Law Group, P.C., represents clients throughout California in Estate Planning, Probate and Trust Administration and Litigation and Auto Injury. She is passionate about driving change within the legal community, having served on the State Bar of California’s Committee of Bar Examiners, and currently serves as CCCBA’s Board Secretary, Chair of CCCBA’s Diversity Committee, At-Large Governor for California Women Lawyers, Co-Chair of CWL’s Judicial Evaluations Committee and a member of CCCBA’s delegation for the California Conference of Bar Delegates. She enjoys guest lecturing and is an Adjunct Professor at San Francisco Law School and John F. Kennedy University College of Law.
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Launching Youth into Law and Leadership by Nancy Schiff, JD, Executive Director, Center for Youth Development through Law What if, as a high school student, you couldn’t focus on your schoolwork because your family struggled with getting food and shelter on a daily basis? What if you could imagine only two potential careers for yourself – auto mechanic or construction work? What if your family actively discouraged you from pursuing college? Or told you that your dream of becoming a judge was foolish because you’re not white? Or you were repeatedly turned away from opportunities because of your immigration status? These are just some of the challenges faced by high school students in the Center for Youth Development through Law’s (CYDL) educational pipeline program, operated in cooperation with UC Berkeley School of Law. CCCBA and many of its members provided generous support for this program through the 2019 CCCBA Bar Fund.
A Pipeline to College and Beyond
Various diversity programs support underrepresented college students in applying to law school, and help diverse law students and lawyers achieve success and leadership within the legal profession. However, the challenges faced by youth from underrepresented, under-resourced, and first-generation backgrounds make it less likely that they will be able to access and persist in higher education, where they could benefit from those programs. These challenges can include financial pressures, stressful home lives, lack of adequate academic support, lack of practical guidance and encouragement, the “imposter syndrome” and more. Additionally, some youth growing up in low-income communities develop a negative view of the legal system because of negative experi-
ences with it – for example, through criminal justice encounters, foster care involvement or immigration issues. High school pipeline programs such as the Center for Youth Development through Law’s program counteract these issues by exposing youth to law and legal careers in a supportive and empowering way, and by inspiring and preparing them for higher education and professional careers.
Law, Life Skills and Leadership
CYDL’s Summer Legal Fellowship Program is an immersive, eightweek, paid summer program for high school students followed by ongoing educational and career mentoring. Participants take interactive classes
Continued on page 24
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Launching Youth into Law Continued from page 23
on the UC Berkeley School of Law campus integrating legal instruction with life skills and leadership activities. They learn about constitutional rights, criminal law, civil rights and immigration law – subjects that are relevant to their lives. Taking these classes in the Law School building enables the students to truly envision themselves belonging and succeeding in a college environment. Program instructors and guest speakers are not only diverse, but they include some of the program’s own alumni. It’s inspiring and illuminating for students to learn from people who have overcome the same adversities they are facing. Program participants are also placed in six-week law and government internships, and CYDL pays them for their participation, as disadvantaged students do not have the luxury of participating in unpaid summer internships. They are able to see law and government at work first-hand, and develop practical skills and a sense of belonging in a professional environment. Through internship coaching and classroom activities, the students also develop “soft skills” such as communication skills and teamwork, which will help them succeed in a competitive field such as law. Research shows that even academically accomplished youth from underrepresented backgrounds often do not acquire these skills, and yet these skills are more important for succeeding in today’s workforce than skills specific to a particular career. After the summer program ends, CYDL offers ongoing educational mentoring, including college and financial aid advising, support with career exploration, and networking opportunities. 24
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CYDL also operates after-school mock trial programs in two Richmond high schools, through which students learn the skills and procedures for conducting a criminal trial and participate in the exciting Contra Costa County High School Mock Trial Competition.
“This Program Allowed me to ‘See’ My Future Self” More than 92% of CYDL participants subsequently attend higher education, and six program alumni have become members of the California Bar. These include an attorney with the City of Richmond Rent Program, an attorney with the US Department of Housing and Urban Development, and CCCBA Board Treasurer Dorian Peters, who practiced criminal law and is now a police officer (and also donates his time as a program instructor). Several program alumni are currently either in law school or applying to law school. Others are working in public policy, restorative justice, and law enforcement careers, and many alumni have also become inspired to be more civically engaged. An attorney who participated in the program while in high school shared this reflection: “I was the first in my family to go to college. This program allowed me to ‘see’ my future self at a university, at a law school, and in a professional setting. I wasn’t just told that I could do it, I was shown that I could and I did. For the first time, I had examples of the path I could take from people like me who had gone through it. The staff’s encouragement started that summer and has never ended.”
Different Models, Similar Goals Another type of program with similar goals is a “Law Career Pathway” within a high school. Pathway students take a series of
Continued on page 26
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Launching Youth into Law Continued from page 24
classes in law and law enforcement as part of their regular school curriculum, and they participate in mock trials, government simulation activities, field trips, and college and career readiness activities. Schools in Contra Costa County that have Law Career Pathways are DeAnza High School (in Richmond), Deer Valley High School (in Antioch), Pinole Valley High School, and Richmond High School. Another similarly-themed program, for Oakland youth, is the Youth Law Academy at Centro Legal De La Raza, which provides weekly evening sessions for a cohort of students starting in their sophomore year of high school.
The Legal Community’s Support Lawyers and other legal professionals have important roles in all of these programs, as mock trial coaches, guest speakers, instructors, field trip hosts, mock trial scrimmage or competition scorers/ judges, board members or advisory committee members, and internship hosts and mentors. CCCBA members Judge Danielle Douglas and Judge Joni Hiramoto serve on the Board of CYDL, and Dorian Peters serves on the CYDL Leadership Council. CCCBA itself has provided much-needed financial support to CYDL and the Richmond High Law Pathway, and individual donations also play a valuable role in the success of these programs. All kinds of law and government offices provide transformative experiences to youth by serving as internship placements. Current CYDL placements include Bay Area Legal Aid, Family Justice Center, Richmond Police Department, Contra Costa County District Attorney and Public Defenders offices. Indi26
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vidual professionals in these offices become role models and mentors, sometimes staying in touch with the interns long after the summer ends. If you or your organization would like to get involved with the Center for Youth Development through Law or any of the other programs mentioned, contact Nancy Schiff, nschiff@youthlawworks. org. High school students from underrepresented and challenging backgrounds have great energy, resourcefulness, idealism and fresh ways of looking at things. Supporting them with pipeline programs is not only the right thing to do from an equity perspective, but it also enables the students’ talents and diverse perspectives to enrich the legal community as well as our community as a whole.
Nancy Schiff has served as the Executive Director of the Center for Youth Development through Law since the organization’s inception in 1999, and she oversees the organization’s Summer Legal Fellowship and Mock Trial Programs. She earned her JD from Hastings College of the Law, and her publications include Justice in Action: Mock Trials in the Classroom (McGraw-Hill, 2001) and a chapter in The Education Pipeline to the Professions: Programs that work to Increase Diversity (Ed. Sarah E. Redfield, Carolina Academic Press, 2012).
FIRST ANNUAL BAY AREA WOMEN LAWYERS RETREAT Sandwiched in between a time of comfortable togetherness and now, six forward thinking leaders from the ACBA, CCCBA, WLAC, CWL and SFTLA conceived of an event especially for women lawyers. Their dream came complete with amazing speakers, a tantillizing assortment of CLE programs, and opportunities for a little rejuvenation. And voila! The first annual BAWLR was planned for February 28 through March 1. It was such a success that, had there been space, they could have doubled the number of attendees.
Thank You to Sponsors
Champagne Sponsor Melissa Baldwin Settlements
Juliette Bleecker, SFTLA; Chief Justice Tani CantilSakauye; Tiela Chalmers, ACBA; and Theresa Hurley, CCCBA
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Adventures with Attorneys
Future Tax Lawyers of California by Christina Weed
On February 14, 2020, my paralegal Jessica Rodriguez and I visited De Anza High School in Richmond. One of the teachers at the high school had contacted the CCCBA to request a presentation by a tax lawyer. Initially, I was surprised when the CCCBA reached out to me about this. I did not immediately understand why the teacher was interested in a presentation by a tax lawyer. The teacher, I found out, was attempting to go above and beyond for her students. The teacher indicated many of her students would be entering the workforce very soon, and many of the students did not yet know what a Form W-4 was, what a Form W-2 was, what “income” was,
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when tax returns were due, what happens when tax returns are not filed, etc. I was so impressed by the teacher’s foresight and desire to help her students, and I was eager to present to these students and share some simple but highly useful tax tips with them. We started the class with a quiz that contained some basic tax questions and discussed the answers out loud. Initially, it was a little difficult to elicit answers or discussion from the students, but it was not anything that some full-size candy bars for correct answers could not cure.
Christina Weed and Jessica Rodriguez at De Anza High School in Richmond I discussed many of the topics the teacher had asked about. The students were also very interested to learn about some of my more interesting cases. (And yes, there are interesting tax cases!) I was also delighted to hear many of the questions the students had. For example, they asked, “What does it take to be a lawyer?”; “Do all lawyers work the same types of schedules?”; “Do you really need to get into a top ranked law school
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Board Nominations
Are OPEN
Thank you to the dedicated members of the 2020 CCCBA Board of Directors: Standing from left to right: Qiana Washington, James Wu (Past President), Cary McReynolds, Mark LeHocky, Summer Selleck, David Marchiano, Mika Domingo, Gina Boer, Dorian Peters, Nicole Mills (President Elect), Craig Nevin. Seated: Michael Pierson, David Pearson, David Erb, David Ratner, Oliver Greenwood (President) Not pictured: Ericka McKenna
As a CCCBA member in good standing, you are eligible to join the Board of Directors. The Board seeks candidates who agree to meet the following expectations: • To possess or acquire a basic understanding of the Contra Costa County Bar Association (CCCBA) and its activities. • To commit to the mission and values of the Association. • To represent the CCCBA in a manner consistent with Board decisions. • To prepare for and regularly attend monthly Board meetings. • To attend additional meetings and bar-sponsored events as needed • To participate on at least one committee or task force. • To participate in the annual Board Orientation and Training program. Directors are selected for their experience and personal attributes. Active participation on a CCCBA committee or section leadership is a plus.
Nomination Process: To be eligible, nominees must be active attorney members of the Association. Any attorney member of the Association may self-nominate by June 1, 2020, for consideration by the Directors’ Nominating Committee. If you are interested in serving on the 2021 Board of Directors please submit your written nomination (including statement of interest, resume and 3-4 written references) to: Theresa Hurley, Executive Director, CCCBA, 2300 Clayton Rd., Ste. 520, Concord, CA 94520 thurley@cccba.org | fax (925) 686-9867
Deadline for submitting nominations is June 1, 2020. Please contact Theresa Hurley at (925) 370-2548 with any questions.
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The April Issue of Contra Costa Lawyer – Here’s What You Missed in the Hot Topics in the Law Issue Thank you to the Editorial Board, Guest Editor Find it online at www.cccba.org/cclawyer-magazine Most of the Contra Costa Lawyer’s monthly editions revolve around one subject with related articles. The April edition was a bit different. It presents a broad spectrum ‘Readers’ Digest’ of current events in the law that clients are going to be impacted by now and in the immediate future.
CONT
LAWRA COSTA YER
As this issue was being prepared, the COVID 19 flu and looming economic recession was dominating every news cycle and was foremost on most people’s minds. While we could not have predicted the future, what could be predicted were the complexities for clients to cope with as to the systematic changes that had already occurred, whether by case law determination or new statutes. If you missed this issue, go online now and read it.
April 20 20
Hot T o in the pics Law
Features • Wildfires and the Impact on the Home Insurance Market, by Matt Cody • 2020 Changes to Workplace Lactation Accommodations, by James Wu • The Tenant Protection Act of 2019 – Rent Caps and Just Cause, by Jamie Sternberg and Steven Mehlman • State to Force Businesses to Provide Retirement Plans for Employees, by Perry Novak • California Supreme Court Decides Hot-Topic in Trusts with Barefoot v. Jennings by Julie Woods • The Public Charge Rule: Reflection of a Broken Immigration System, by Marco Garzon • Enforcement of The California Consumer Privacy Act Begins July 1, 2020. Are You Ready? by Ashley Shively
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Lyft’s Commitment to Inclusion and Diversity By Delphina Yuen
unconscious bias and bring diversity in the workplace, companies must be intentional about disrupting and unlocking systemic challenges.
It is becoming increasingly clear that having diverse teams creates a better company. Diverse teams help the bottom line, inspire more innovation, and foster a collaborative culture that attracts top talent to drive results. A McKinsey study found that companies with high racial and ethnic diversity among their employees outperformed their counterpart companies by 35%1; therefore, companies have increasingly focused on diversity and inclusion within their organizations. Inclusion and diversity are not only good for business, but they’re also the right thing to do. Some industries look more traditionally homogenous than others, making cultivation of inclusion and diversity more challenging. Technology companies, for example, can often focus their recruiting and hiring efforts on candidates that have explicit experience at other Silicon Valley technology companies. This results in a small pool of companies hiring from one another. Similar patterns are seen in the legal industry; firms often have requirements that seek candidates from “Top Ten” law schools or have “Big Law” experience. In order to combat
At Lyft, we are committed to incorporating inclusion and diversity into all parts of our culture and processes. It is at the forefront of how we hire and retain, make decisions, and drive the company forward because we believe that Lyft, as a whole, should reflect the communities the company serves. To transform our commitment into action, we pragmatically review our processes and procedures against the goals and results we desire and make swift changes as needed. Our recruiting efforts at Lyft have been an area of focus for inclusion and diversity. We believe that we can promote diversity through every step of the recruiting process by building a program that stimulates more inclusion and seeks to eliminate bias. For example: ● We cast a wide net for candidates. We shortened job descriptions to encourage more applicants; overly-detailed job descriptions may cause diverse candidates to self-select out. ● We prepare and design interviews for diversity. We strive to create the most diverse interview loops possible by including members from cross-functional teams with varying titles and backgrounds. ● We conduct unconscious bias training. We conduct virtual training sessions for team members to practice real-life
scenarios and review case studies to humanize the bias experience that occurs on a day-to-day basis. ● We develop set interview questions. We pre-determine values and skills required for the role to prepare interview questions in advance. ● We provide prompt internal feedback on the candidate. We commit to providing hiring managers individual written feedback on each candidate within 24 hours of the interview. ● We follow the Rooney Rule: The Rooney Rule is a policy that originated with the National Football League which requires league teams to interview ethnic-minority candidates for head coaching and senior football operation jobs. Companies adopting The Rooney Rule generally require at least one underrepresented minority (as defined by the company) to be considered in the slate of candidates for senior level positions. The rule is only an interviewing quota, not a hiring quota or hiring preference given to minorities. Before we make an offer on a Director-level or higher role, we have already ensured that we considered at least one candidate from our target diversity group. Those target groups for Lyft currently include Women, Black, or Hispanic/Latin talent. Focusing on inclusion and diversity in our recruitment efforts has been crucial in supporting the exponential workforce growth across Lyft. In just two years, the Lyft legal team
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Lyft’s Commitment
Continued from page 31 itself scaled from approximately 30 people to over 150 team members, representing an extremely wide range of values, beliefs, ethnicities, ages, genders, thinking styles, social and educational backgrounds. The diverse individuals comprising the legal team are core to the team’s success in taking Lyft closer towards realizing its mission of improving people’s lives with the world’s best transportation. Over time the complexities of the business and outside challenges faced by the Lyft legal team have only continued to grow as the company has expanded its North American offerings. Yet through collaboration and innovation, the Lyft legal team has overcome each of these challenges presented. Lyft’s success in creating a diverse and inclusive environment was not built overnight and does not stop here. We realize this is a continuous effort, and we are committed to it because we believe that by doing so, our actions will make all the difference now and for years to come
Adventures with Attorneys Continued from page 28
to have a successful career as a lawyer?” Then, there was perhaps my favorite question: “Can I interview for an internship at your firm?” Although, I am not currently hiring an intern, I was touched that some of the students might be interested in working at Mendes Weed, LLP, and impressed by their initiative. The students could not have been more enthusiastic about careers in the law – even tax law. If the opportunity presented itself again to teach another high school class in our community, I would definitely take
Elder Law is
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Christina Weed is a Partner at Mendes Weed, LLP, a Co-Founder of Weed Law, PC, and a Certified Tax Specialist. Christina’s practice areas include tax law, estate planning, probate, tax/estate administration. Christina’s firm also handled family law and civil litigation matters. Contact: christina@mwlawca. com
The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall. Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, 10% of the population age 65 and older has Alzheimer’s disease. Of the 5.5 million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.
1. https://www.mckinsey.com/business-functions/ organization/our-insights/why-diversity-matters
Delphina Yuen is a Director of Legal at Lyft, a San Francisco based rideshare service provider. She leads a team focused on product counseling for Lyft’s core platform and has also advised the company’s international, autonomous vehicle and scooter divisions.
it. I would highly recommend that other lawyers in our community get involved in this way if there is ever an opportunity to do so. It was a highly rewarding experience, and I think everyone had fun.
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IOLTA Rules: Got My Money on My Mind and My Mind on My Money By Mary Grace Guzman This article evolved from an MCLE presentation titled, “Dollars and Sense: Trust Accounting/IOLTAs for Small Firms and the New Rules” presented by Joanna Storey of Hinshaw & Culbertson, LLP and Thomas D’Amato of D’Amato Law at the Bar Association of San Francisco’s Solo/Small Firm Annual Conference on January 23, 2020. In November 2018, the State Bar of California adopted the New California Rules of Professional Conduct. These rules brought significant changes to how lawyers practice law. Rule 1.15 “Safekeeping of Funds and Property of Clients and Other Persons” (Former Rule 4-100 “Preserving Identity of Funds and Property of a Client”) adopted the most significant changes in how attorneys handle funds and property of clients along with creating a duty to third parties. This article discusses four significant changes that impact how attorneys handle funds and property of clients and third parties.
Starting with the Change in Name of the Rule Former rule 4-100 is titled “Preserving Identity of Funds and Property of a Client,” whereas the new Rule 1.15 adds the terms “Safekeeping” and “Other Persons” and removes “Preserving.” While the rule has changed to be more aligned with the Model Rules, the word change from “preserving” to “safekeeping” accepts that an attorney is a fiduciary entrusted with the property of clients and third parties. The concept of safekeeping is more expansive, meaning that compliance is not met by merely identifying the funds or property, placing them in a safe space (lockbox/safe or trust account), and properly disbursing such funds. Safekeeping additionally requires an attorney to keep records, maintain accounting, comply with audits, and promptly distribute
any disputed funds. Further, the new title recognizes that attorneys often hold property and funds belonging not only to their clients but also to third parties. This article discusses in more detail an attorney’s duty to third parties below.
Rule 1.15 (a) All funds must be placed in trust Former Rule 4-100(a) states: All funds received or held for the benefit of clients by a member or law firm, including advances for costs and expenses, shall be deposited in one or more identifiable bank accounts labeled ‘Trust Account,’ ‘Client’s Funds Account’ or words of similar import… Rule 1.15(a) states: All funds received or held by a lawyer or law firm* for the benefit of a client, or other person* to whom the lawyer owes a contractual, statutory, or other legal duty, including advances for fees, costs and expenses, shall be deposited in one or more identifiable bank accounts labeled ‘Trust Account’ or words of similar import… The old rule requires that “advances for costs and expenses” must go into the trust because these funds belong to the client. Nevertheless, some attorneys understood the old rule as not necessarily requiring flat fees or certain “prepayment” of legal fees to be placed in trust, provided that the attorney accounted for the fees in a client ledger. Rule 1.15 Comment 2 defines “advance for fees” as any payment intended as an advance payment for some or all of the lawyer’s services to be performed, meaning that the advance fee is the client’s funds until the attorney has earned the fees. Rule 1.15 (a) also incorporates “contractual, statutory or other legal duty,” meaning that an attorney has a duty to place funds in
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MCLE SELF STUDY IOLTA Rules
Continued from page 33 trust when a contract, a statute, or even a court order requires them to do so.
Rule 1.15(b) Flat fees may be placed in either IOLTA or operating accounts Many attorneys utilize the flat fee model, and Rule 1.15(b) governs how an attorney should handle these fees. Rule 1.15 (b) has several components depending upon if the flat fee is greater or less than $1,000. Rule 1.15 (b) (1) requires an attorney to disclose in writing (i) the client has the right to require the flat fee to be placed in trust and (ii) the client is entitled to a refund for unearned fees. Rule 1.15(b)(2) requires that an attorney obtain the client’s written consent to place a flat fee in an operating account if the fee exceeds $1,000. Applying this rule, if a lawyer-client agreement is a flat fee service, then the attorney must include a clause advising the client of Rule 1.15(b) (1). When the flat fee exceeds $1,000, then the attorney must obtain client consent prior to placing the flat fee in the operating account. If the fee is less than $1,000, then the lawyer may only provide notice to the client of Rule 1.15 and the attorney’s intent to place the funds in the operating account, but the attorney is not required to obtain the client’s express consent. Because Rule 1.15(b)(1)(ii) states that the client is entitled to a refund for unearned fees, contractual language, such as “nonrefundable flat fee” or “fees earned upon receipt,” are unethical under Rule 1.15(b). See Rule 1.5(d) for a discussion of when a lawyer may use this language.
Rule 1.15(c)(2) Undisputed fees must be withdrawn Former Rule 4-100(A)(2) and new Rule 1.15(c)(2) are essentially the 34
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same rule in that they both advise lawyers when funds may be withdrawn from trust and how to handle disputed funds. Rule 1.15(c) prohibits a lawyer from placing the lawyer’s funds in trust, as this is commingling. Many attorneys are not sure how to proceed when a client disputes fees and disbursements. When a client disputes fees or a lawyer’s contingency fee percentage, then the disputed funds must remain in trust until the dispute is settled. For example, the client has $10,000 in trust. The lawyer sends a bill for the $10,000, and the client disputes $3,500 of the earned fees. Under Rule 1.15 (c)(2), the lawyer may withdraw $6,500 but must leave $3,500 in trust until they have settled the fee dispute. By leaving the full $10,000 in trust until after the dispute is settled, the lawyer commingled earned funds with client funds.
Rule 1.15 Duties to third parties and their property Throughout Rule 1.15, the words “other person” and “property” are incorporated into many of the subsections of the rule. Lawyers often receive funds or property belonging to third parties by way of court order, escrow, settlement disbursement checks, or third-party payor. Third-parties include former clients, third-party payors, vendors or other individuals who may have an interest in the property held by the lawyer. The inclusion of “other person” codifies a lawyer’s ethical responsibility to a third party when the lawyer receives funds or property where a third party has an interest. The inclusion of “other person” means that an attorney must handle funds and property of a third party with similar care as they would a client’s funds or property. Under the new rule, a lawyer has a duty to handle a client’s or third person’s property properly. Property
includes documents, securities, or other tangible items entrusted with an attorney for safekeeping. Like the inclusion of “other person,” the new rule recognizes that a lawyer often receives or holds property of nonclients and clients during a representation with the expectation that the lawyer will appropriately distribute the property when required; thus Rule 1.15 expands a lawyer’s ethical duty beyond funds to be placed in either the trust or operating accounts to include non-monetary property.
MCLE Self Study Earn one hour of general MCLE credit by answering the questions on the Self Study MCLE test available online at https://www.cccba. org/for-attorneys/mcle-overview/ mcle-self-study/ Send your answers along with a check ($30 per credit hour for CCCBA members/ $45 per credit hour for non-members), to the address on the test form. Certificates are processed within 2 weeks of receipt. If you prefer to receive the test form via email, contact Anne K. Wolf at awolf@cccba.org or (925) 370-2540. Mary Grace Guzmán of Guzmán Legal Solutions advises lawyers, law firms, and law students on their professional responsibilities and risk management needs. She works with lawyers and law firms regarding legal ethics issues such as conflict of interest issues, fee disputes, and advises lawyers and law firms as outside ethics counsel to manage risk. Ms. Guzmán recognizes that a lawyer’s or law firm’s needs are best met by preventing legal ethical issues before they arise or managing an ethical issue once identified.
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Probate paralegal to attorneys Joanne C. McCarthy, 3000F Danville Blvd., #257, Alamo, CA 94507 Call (925) 689-9244.
Once the Restrictions are Lifted CONFERENCE ROOM AVAILABLE CCCBA members receive a discount on renting the conference room at the CCCBA office in Concord. For information contact Barbara Arsedo at (925) 370-2544 or barsedo@cccba.org.
notary service CCCBA members are eligible for free notary service at the CCCBA office in Concord. Contact Carole Lucido at (925) 370-2542 or clucido@cccba.org for an appointment.
Advertiser Index ADR Services . . . . . . . . . . . . . . . . . . . . . 26 Barr & Young Attorneys . . . . . . . . . . . . 17 The Bray Law Firm . . . . . . . . . . . . . . . . 26 First Republic Bank . . . . . . . . . . . . . . . . 20 JAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Lawyers Mutual Insurance Company . . 14 LawPay . . . . . . . . . . . . . . . . . . . . . . . . . 25 Morrill Law Firm . . . . . . . . . . . . . . . . . . 15 Novak Wealth Management . . . . . . . . . . 2 Princeton Pacific Properties . . . . . . . . . . 8 Pedder, Hesseltine, Walker & Toth, LLP . . . . . . . . . . . . . . . . . . . . . . 21 Candice Stoddard . . . . . . . . . . . . . . . . . 10 The Law Offices of Michael J. Young . . . . . . . . . . . . . . . . . . 24 Zandonella Reporting Service . . . . . . . . 6
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Join the Lawyer Referral & Information Service
Grow your practice with the CCCBA’s LRIS. We schedule over 5,500 client consultations with paying clients every year. We have immediate need for attorneys: • Who specialize in Tenant Rights or Juvenile Dependency • Spanish Speaking Attorneys (all specialties) • Moderate Means Attorneys
Contact Barbara Arsedo, CCCBA LRIS Director at (925) 370-2544 barsedo@cccba.org or visit www.cccba.org/lawyer-referral-service/ CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER
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2020 Education Series
Your Law Practice Roadmap Practical Guidance for New & Established Attorneys
Online Sessions | 1 hour MCLE credit
Members - $20/session, Non-members - $40/session, Law Student Section Members - $10/session 3. Clients: Getting
Them, Keeping Them and Saying Goodbye
Tuesday, May 5 | Noon - 1:30 pm
5.
Using Technology to Enhance and Secure Your Practice / Cyber Security Wednesday, May 13 | 9:00 - 10:30 am
4. Partnerships
& Personnel –
Who, What, When & How to Hire Friday, May 29 | 9:30 - 11:30 am
Speakers: Diane Camacho – Moderator Josh Bevitz Ericka McKenna
Speakers: James Wu – Moderator Nick Casper Denae Budde
• Moderate Means, LRIS • Online advertising • Networking / business advisors • Shared offices • Potential clients – red flags • Substitution of attorneys – rules
• Hardware • Billing and Document management software • Case management software • Trial presentation software • Cyber Security – practical & ethical responsibilities
• Employees, No Employees or Contract Employees? • Partners – LLP, PC, Partnership or do nothing, association of counsel • Transitions of leadership
1 hr General MCLE credit
1 hr General MCLE credit
Speakers: David Erb – Moderator Barbara Arsedo Marie Quashnock Alay Yajnik
The Contra Costa County Bar Association certifies that the activities listed here have been approved for the specific MCLE credit indicated by the State Bar of California, Provider #393.
Thank You to Series Sponsors: Summa Cum Laude Sponsor
Magna Cum Laude Sponsor
Upcoming Sessions Dates Subject to Change;
Please check the calendar www.cccbaorg/calendar 6.
Your Professional Reputation - Ethics and Civility Tuesday, June 9, 4:30 pm - 6:00 pm 1 hour Legal Ethics MCLE credit
7.
The Work/Life Balancing Act Tuesday, September 15 1 hour General MCLE credit
8.
Alternative Practices of Law – Inside Law Wednesday, October 14 1 hour General MCLE credit
9.
Alternative Practices of Law – It’s a Big, Wide, Wonderful World Tuesday, November 10 | 1 hour General MCLE credit
Cum Laude Sponsor
REVISED 4-23-2020
1 hr General MCLE credit