Contra Costa Lawyer May 2013

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Contra Costa

LAWYER Volume 26, Number 3 | May 2013

The Future of Law Practice

“BYOCR” (Bring Your Own Court Reporter) Self-Study MCLE: Ethical Guidelines for Practicing in a Virtual Law Office The Future of Law in Admissions to the California State Bar



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MAY 2013

Contra Costa  2013 BOARD OF DIRECTORS Jay Chafetz President Stephen Steinberg President-Elect Candice Stoddard Secretary Nick Casper Treasurer Audrey Gee Ex Officio Richard Alexander Philip Andersen Dean Barbieri Amanda Bevins Oliver Bray Denae Hildebrand Budde

Mary Carey Alison Chandler Elva Harding Peter Hass Reneé Livingston James Wu

LAWYER Volume 26 Number 3 | May 2013

The official publication of the

B   A   R        A   S   S   O   C   I   A   T   I   O   N













by Richard Frankel

CCCBA   EXECUTIVE   DIRECTOR Lisa Reep | 925.288.2555 | CCCBA main office 925.686.6900 |

by Nick Casper

Jennifer Comages Theresa Hurley

Membership Coordinator Associate Executive Director

Emily Day Barbara Arsedo

Systems Administrator and LRIS Coordinator Fee Arbitration Coordinator

Dawnell Blaylock

by Hon. David B. Flinn

Communications Coordinator


by Pete Tormey / Felix Antero

CO-EDITORS EDITORIAL BOARD Harvey Sohnen Mark Ericsson 925.258.9300 925.930.6000

by Mark Ericsson

Nicole Mills Matthew  Guichard

925.351.3171 925.459.8440 Harding BOARD LIAISON Elva 925.215.4577 Candice Stoddard 925.942.5100 Patricia Kelly 925.258.9300 COURT LIAISON Craig Nevin Kiri Torre 925.930.6016 925.957.5607 David Pearson PRINTING 925.287.0051 Steven’s Printing Stephen Steinberg 925.681.1774 925.385.0644 PHOTOGRAPHER Marlene Weinstein Moya Fotografx 925.942.5100 510.847.8523 James Wu 925.658.0300

The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year - 6 times online-only - 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 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.

by Sarah Banola



INSIDE | by Elva Harding



20 CENTER | Solo Section Breakfast Barristers/Young Lawyers Section BRIDGING THE GAP Women’s Section Annual Wine Tasting Event, Honoring Judge Cram 30

ETHICS CORNER | by Carol Langford


INNS OF COURT | by Matthew Talbot

34 COFFEE TALK How have the court budget cuts affected you? 35 CALENDAR 38 CLASSIFIEDS




Revolutionizing Law


elcome to the brave new world of providing legal services. In case there is any doubt out there, let me assure you, the way legal services are purchased, how they are delivered, who provides them and how they are priced is undergoing a revolution. In large part, these changes are being driven by the same forces that built Silicon Valley—technological change, innovation and American entrepreneurship.

of law school. The State Bar has taken note of this development, and is considering adding a new practical skills training requirement before licensing new members. Dick Frankel fills us in on the task force’s recommendations (pg. 8). Additionally, Pete Tormey, a recent JFK Law School graduate, and Felix Antero look at strategies for building a competitive modern practice in “Growing Trends in Today’s Legal World” (pg. 14).

Finally, with the decline of traditional law firms, These changes are not just a passing fad. Consider the more attorneys are working solo or as part of virtual law Reinvent Law Laboratory (, firms. Sarah Banola considers the ethical implications of a project of Michigan State University College of Law virtual law practice (pg. 26). which is funded with a substantial grant from the EwAs you read this issue, I hope you will keep in mind ing Marion Kauffman Foundation, and is dedicated to that the Bar Association is a resource to help you naviadvancing entrepreneurship and innovation. Reinvent gate these changes. Again this year, we Law recently held a day-long conference are presenting our popular Law Practice in our own Silicon Valley (also London and Management Series, which got underDubai). Lawyers, leaders of online virtual way in April with practical advice on law firms (such as Axiom Law and Directhow to develop a business plan and get Law), journalists, venture capitalists and to work on business development. At this law professors presented their visions for month’s LPMS seminar, Randy Wilson a more efficient, online, technologically will discuss the ethical issues related to sophisticated law industry that is funded lawyers’ use of social media. Other prowith private investment. An industry grams will include practical steps to eswhere the billable hour is extinct, freelanctablishing a modern law practice, issues ers replace associates and access to justice and best policies around use of mobile is discussed in terms of online dispute resodevices by your law practice employees, lution. This is not your grandfather’s law transitioning practices for part-time or practice. Mark Ericsson explores our changretiring lawyers and what you need to ing industry, both here and abroad, in his know about the Affordable Health Care Elva Harding article, “Tomorrow’s Lawyer” (pg. 24). Act. For more information, call the Bar

Guest Editor In this issue of the Contra Costa Lawyer, Association or check online at www. we take a look at how the practice of law is advancing here in Contra Costa County. Access to jusAs Mark Ericsson said in our March issue, these are tice is a primary concern of the Contra Costa bench and certainly exciting times, and perhaps a bit uncomfortbar. The severe budget cuts that our courts have suffered able as the new normal takes hold. But with exciting have hit close to home. We have all heard the stories times comes energy, innovation and most importantly, of the rising number of pro per litigants, the long waits opportunity. Our challenge is to harness the energy and to file documents, the long delays for trial dates. In his capture the best of these new ideas to build a better, article, “It’s Always Darkest Before Dawn” (pg. 10), Nick stronger legal system that can well serve our citizens. s Casper brings light to the impact of budget cuts on our courts and discusses CCCBA’s efforts to reach our state Elva D. Harding is a real estate and business attorney legislators to advocate for more funding. One of the and founder of Harding Legal, dedicated to providresults of the budget cuts is that court reporters are no ing efficient and effective legal service to individuals longer provided in civil, family and probate courts. Our and small, mid-sized and family-owned businesses. thanks to Judge Flinn for explaining the rules by which Elva serves on the Bar Association’s Board of Directors litigants may provide their own court reporters (pg. 12). and is Chair of the Law Practice Management Series As first-year associate positions become scarce, more task force. Contact Elva Harding at (925) 215-4577 or young attorneys are hanging their shingle straight out 6

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president’s message


he theme of this month’s edition of the Contra Costa Lawyer—the future of law practice—has me reflecting about some potential changes in the practice of law and the nature of change itself. Some people crave change. Others, like me, work more on a model of “if it ain’t broke, don’t fix it.” Change that we choose can be exhilarating. It can stimulate our imaginations with the promise of a better life. Change that is foisted upon us is another matter. The latter may instill resentment, discomfort, even fear. We can often anticipate the chang-

to balance them with other aspects of the required curriculum. For as long as I’ve known, the model we followed was that law firms trained new lawyers. Perhaps they are no longer willing to do so. Or perhaps there has been such a contraction in the job market that they no longer can, and too many people graduating from law school are forced to start their own practice, servicing whatever clients they can find without as much practical knowledge of how to do so as would be optimal. Whatever the reason, I am told that the requirement for law students to obtain practical ex-

The Changing Times

es that the future will bring. Exactly how we will deal with them is less certain. But experience teaches us that deal with them we will. I am told that there are some changes on the horizon regarding the practice of law. I wonder how they will affect us. The first is that one day soon a requirement for admission to the bar or engaging in practice may be a certain amount of practical experience (see Richard Frankel’s article, pg. 8). This prerequisite may be required to be fulfilled by participation in clinics or specialized classes in law school about the actual practice of law. It may instead take the form of required internships after graduation from law school. I know that one law school in our community, John F. Kennedy University School of Law, is currently debating how to prepare for this coming requirement, what clinics to offer and how

perience before they are admitted to the bar or engage in the practice of law is coming. A second possible change is what is being called Limited Practice Licensing. This proposal concerns the possibility of creating a new category of licensed technicians able to give basic legal advice on routine matters. As I write this, the State Bar is scheduled to hold its first public meeting on April 11 to discuss this idea. I will quote here from an email that I recently received concerning the idea: “The idea of limited-practice licensing surfaced at a State Bar retreat in San Diego in January where the Board of Trustees looked at ways of improving public protection, access to justice and the State Bar’s regulatory functions. Proponents of limited–practice licensing see it as a way to improve delivery of legal services to the public, who

Jay Chafetz CCCBA Board President often turn to non-lawyers for assistance when they can’t afford the services of licensed attorneys. Such a program, supporters argue, would make legal services more affordable, while ensuring consistency and quality. California currently allows non-lawyers to perform some tasks that don’t constitute the practice of law, such as helping people fill out legal forms. Paralegals working under attorney supervision, unlawful detainer assistants, legal document assistants and immigration consultants registered by county clerks or the California Secretary of State can also assist consumers with some legal needs, short of practicing law. Each year, the State Bar receives hundreds of complaints about businesses and individuals practicing law without a license, but it is limited in the action it can take because it does not regulate non-attorneys.” Are either of these proposed changes going to be dramatic for current or future lawyers? Are they to be feared or welcomed? There is no way to know. The only thing certain in our lives is change, not whether any particular change will ultimately prove to be good or bad.s



The Future of Law in Admissions to the California State Bar by Richard A. Frankel


he Board of Trustees of the State Bar of California charged the Task Force on Admissions Regulation Reform with examining whether the State Bar of California should develop a regulatory requirement for a pre-admission practical skills training program and, if so, proposing such a program for submission to the Supreme Court. Most American law schools today follow the traditional Langdellian model of legal education, emphasizing doctrinal study as the basis for teaching students the art of “thinking like a lawyer.� Over the course of more than a century since this model of legal education took root around the country, law schools have gradually incorporated clinical experience and practical skills training into their core curriculum. The importance of providing new lawyers with opportunities to develop practical skills has been driven, in large part, by the rapidly changing landscape of the legal profession. Due to the economic climate and client demands for trained and sophisticated practitioners fresh out of law school, fewer and fewer opportunities are available for new lawyers to gain structured practical skills training early in their careers. Many new lawyers, in fact, are now entering the profession as solo practitioners,


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without the solid practical skills foundation necessary to represent clients in a competent manner and with nowhere to turn to build that foundation. From the standpoint of regulatory policy, this situation presents serious issues of public protection that cannot be ignored. The record that we have compiled and examined confirms the importance and urgency of a thoughtful policy response. Following a series of hearings during which the Task Force took testimony from many practitioners, legal academics, judges, clients, and members of the public at large, and based on a thorough review by the Task Force of the literature on the topic of practical skills training for new lawyers (an extensive body of work going back decades that has repeatedly addressed the same set of questions considered here, and that has time and again

confirmed the need for reform), we now answer the charge given to us in the affirmative. In our view, a new set of practical skills requirements focusing on competency and professionalism should be adopted in California in order to better prepare new lawyers for successful transition into law practice, and many of these new requirements ought to take effect pre-admission, prior to the granting of a law license. The draft Task Force recommendations are: • Pre-admission: A practical skills training requirement fulfilled prior to admission to practice. There would be two routes for fulfillment of this pre-admission practical skills requirement: either in law school, where 15 units of course work following the first year of law school must be dedicated to developing practical skills and serving clients, or, alternatively, employment in a

State Bar-approved clerkship or apprenticeship program of at least six months in duration. • Pre-admission or post-admission: An additional practical skills training requirement, fulfilled either at the pre- or post-admission stage, where 50 hours of legal services are specifically devoted to pro bono or low bono service. Credit towards those hours would be available for “in-the-field” experience under the supervision and guidance of a licensed practitioner or a judicial officer. • Post-admission: Ten additional hours of Mandatory Continuing Legal Education (MCLE) courses for new lawyers, over and above the required MCLE hours for all active members of the State Bar, specifically focused on practical skills training. Alternatively, credit towards these hours would be available for participation in mentoring programs. The recommendations of the task force incorporate the thinking and findings of recent articles which tend to focus on the following facts: • Law school admissions are generally down about 15 percent. • Law school graduates frequently incur debt in excess of $100,000. • About 50 percent of law school graduates are obtaining full time employment in the legal profession. • More and more new lawyers are hanging out their shingle and are joined by experienced lawyers whose firms have been downsized. • Except for Internet based legal services (growing at about a 30-35 percent rate), traditional law firms are “hanging on.” • Legal services for the poor and middle class continue to be largely either not available or cost prohibitive. Ask any judge about the vol-

ume of self-represented litigants in civil proceedings.

be on June 11 in San Francisco. All meetings are open to the public.

• Court budget reductions have adversely impacted the administration of justice.

The objective of the Task Force is to present its final report after the June 11 meeting to the Board of Trustees for consideration for eventually submission to the California Supreme Court for adoption. s

• Private ADR services have created a broader market share of the civil dispute business for those that can afford such services. • The practice of law has dramatically changed over the past 10 years through the use of technology. The Task Force is comprised of more than 20 individuals from private attorneys, public attorneys, in-house counsel, law school deans and professors and members of the judiciary. The Task Force has been meeting over the past year. The last meeting was in Los Angeles on April 23 and the final meeting will

This article is abridged from a drafting proposal written by Jon Streeter, Task Force Chair and former California State Bar President, with contributions from other Task Force members. The entire text of Mr. Streeter’s comments and Task Force recommendations and analysis are available on the California State Bar website at

Richard Frankel, a San Ramon attorney, is a member of both the Task Force and Committee of Bar Examiners, State Bar of California.

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It’s Always Darkest Before Dawn by Nick Casper


he California judicial system is in dire financial straits. It is not hyperbole to say that the current situation has reached a crisis level. This is undoubtedly not news, as it has been keenly felt by practitioners, judges, court staff and affected citizens alike. Since 2008, the budget of the California court system has been slashed by $1.2 billion, a cumulative reduction of over 40 percent. As Chief Justice Tani Cantil-Sakauye emphasized, spending on the judicial branch now amounts to only 1 percent of the state’s general fund (down from a historical 2 percent), a pittance to meet the needs of 38 million Californians. Statewide, courts have eliminated over 2,000 staff positions, closed 175 courtrooms and shuttered 61 courthouses. The operating hours of filing clerks have been reduced, courtrooms routinely no longer provide court reporters in civil matters and most counties have been forced to reluctantly eliminate specialty courts and vital services, such as alternative dispute resolution programs and self-help services previously offered to pro per litigants. Work furloughs and judicial vacancies abound. The real-world effects of these cuts have been nothing less than devastating. Filing lines at county clerk windows—traditionally, a minor nuisance—now can become all-day endeavors. Splintered families face daunting delays in reunification proceedings. Domestic violence victims are denied expeditious processing of their claims for civil pro-


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tection. Business disputes, some involving millions, or even billions of dollars, have grinded to a near-halt, resulting in unknown economic costs. Unlawful detainer matters are delayed, resulting in uncertainty to both tenants and landlords. Civil fees have been categorically increased to alleviate shortfalls, raising access to justice concerns, particularly for the state’s most vulnerable populations. Contra Costa County has been far from immune from the financial pinch imposed on the judicial system. The county’s Superior Court has absorbed nearly $14.5 million in cuts since 2010, and this year $8 million in reserves that the court had prudently amassed were swept up by the state. All told, the county’s judicial budget has been slashed by 25 percent. In response, the county was forced to take on a range of austerity-type measures, including closing the Concord courthouse, reducing the Walnut Creek courthouse’s operations to traffic cases only, eliminating or reducing several specialty courts, laying off five of eight commissioners and consolidating much of the county’s judicial operations to Martinez. Like other courts throughout the state, Contra Costa County Superior Court now is faced with absurdly jammed dockets and overworked judicial officers and staff. Delays in hearings and trial dates are unavoidable, and residents in East and West counties now must travel to Martinez to have their family and juvenile law matters heard due to courtroom closures in Pittsburg and Richmond.

Last year, in the face of this gloomy judicial picture, a large alliance of California lawyers from both sides of the bar, called the Open Courts Coalition (OCC), initiated an effort to give a voice to the oft-neglected third branch of government, as well as to the 38 million residents who depend on the courts. The OCC encouraged participation by counties across the state to join the collective effort of reaching out to local lawmakers to seek a restoration of funding so that the courts could resume functioning on a basic level of service. The Contra Costa County Bar Association heeded the call of the OCC. In the beginning of 2012, the CCCBA created the Pro Bono/Access to Justice Committee, on which I serve as Chair, as a means of advocating for the beleaguered courts on the local level. In April of last year, we co-sponsored and participated in a court funding rally on the steps of San Francisco City Hall, where several hundred lawyers, judges, court workers and citizens convened to speak out on the budget crisis. State Attorney General Kamala Harris, Justice Carlos Moreno (Ret.) and other notable judicial figures delivered stirring sermons regarding the critical importance of the state’s court system, and how the cuts

have crippled the judiciary’s ability to meet the needs of Californians. In 2012, members of the CCCBA Access to Justice Committee also met with the state lawmakers who represent portions of Contra Costa County, including state Assembly members in their District Offices, and Senators Mark DeSaulnier and Loni Hancock at the State Capitol. The purpose of the meetings was simple: to paint a picture of how the severe judicial budget cuts were adversely affecting the administration of justice for Contra Costa residents (who also represent the lawmakers’ constituencies). This year, the Access to Justice Committee has renewed the struggle to reach the hearts and minds of lawmakers. Committee members Elva Harding, Samantha Sepehr, Peggy Bristol-Wright and I are in the process of organizing meetings with Contra Costa legislators to once again express the debilitating effects of the budget cuts, this time with the county’s significant court closures and reorganizations of 2013 in mind. The hope is that the CCCBA’s legislative efforts will add to the growing chorus across the state to impress upon lawmakers that the cuts over the last five years have gone too deep, and that the courts are on the brink of reaching a breaking point. Governor Brown’s revised state budget will be issued in midMay; it is hoped that California legislators restore critical funding to the courts and convince Governor Brown to leave these funds alone with his “blue pencil.” Locally, the CCCBA is not acting alone in this fight to restore much needed court funding. Presiding Judge Barry Goode and other Contra Costa judges have taken a proactive role in meeting with state lawmakers to articulate the difficulties faced by judicial officers, court staff and litigants under the current budgetary constraints. Judge Goode serves as the Legislative Outreach Chair of the Trial Court Presiding Judges

Advisory Committee (which is comprised of all the presiding judges across the state), and he recently testified before the Budget Subcommittees of the state Assembly and Senate on the budget issues. The county’s Superior Court has also implemented creative strategies to help address the docket logjam created by courtroom closures, including that of the civil discovery commissioner. The court invited local practitioners to volunteer to serve as temporary judges to handle small claims and unlawful detainer matters or to serve as civil discovery facilitators. The response by local lawyers has been encouraging, and both of these pilot programs are in full flight. A silver lining of the court funding crisis is that it has fostered greater collaboration between the bench and bar, as well as by attorneys on opposite sides of the ”v.,” to discover novel solutions to the for-

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midable challenges created by the underfunded judiciary. It is hoped that the court system currently inhabits that ”darkest hour just before the dawn.” The CCCBA, as well as the Contra Costa County Superior Court, are making a concerted effort to help ensure that the dawn of restored court funding is close at hand. s Nick Casper is the Treasurer of the Contra Costa County Bar Association. As an associate with Casper, Meadows, Schwartz & Cook since 2007, Nick has been actively involved in litigating many of the firm’s largest cases involving catastrophic injury, wrongful death, medical malpractice, employment discrimination/harassment, and civil rights violations. Nick has also taken several of the firm’s cases to jury trial.

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(Bring Your Own Court Reporter)


erhaps the single most significant effect of the statewide reductions to court budgets, as they apply to civil, family and probate cases, is the inability of the courts to continue to maintain a court reporter staff for those categories of cases.

by Hon. David B. Flinn by far the easiest approach is for the parties to a hearing or trial to stipulate as to the selection of a qualified reporter. New form CV-310 is used and includes an agreement by the reporter to meet the court’s requirements.3 Reporters should be capable of providing ”Livenote” and tying into the judges’ bench computers either by a Wi-Fi remote connection or cable connection. This is especially important as it assists the court in reviewing oral proceedings and therefore being able to more quickly render decisions that are important to the clients.

As the need of a record of proceedings in many types of matters is, of course, important, the obvious step is to allow the parties to provide their own reporters. That would appear simple until one reviews the statutory provisions regarding court reporters and considers the need that when the court certifies a record to a higher court the applicable provisions must be regarded. It thus became necessary for our civil, family and probate judges to formulate a process that allows for a ”certifiable” record. Using extensive work done by the Los Angeles Superior Court on the topic, our judges have put together a protocol that hopefully will accommodate all concerned. Our plan is based upon the expectation that for the vast majority of cases needing court reporting, the parties will stipulate as to the selection of the reporter. Things will work most smoothly if, based upon civility, a party asked to stipulate will do so absent a bona fide reason for not doing so. The specific provisions for reporting by stipulation are contained on the court’s website.1 From the home page, scroll to “Information and


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Reporters will also be provided a welcome packet and must become familiar with the court’s process for timely uploading the raw stenographic notes into the court’s ACORN storage site for safe storage and future reference.

Notices” in the middle of the page and click on the link “Use of Private Court Reporters.” The link “Protocols” on that page will give you a 13-page explanation of the issues and requirements. There is also a link for Local Rule 24, which covers court reporting.2 In a nutshell, the provisions of the Government Code are such that

As it is important that our court avoid favoritism, we do not make recommendations on reporters to be used for private reporting. The court will protect parties who desire reporting and cannot obtain a stipulation from their opponent, although so far our experience has been that this is a rare occurrence. Due to the Government Code provisions, a reporter must then be chosen from the list of

reporters that have been vetted and approved by the bench. Making these selection arrangements can be time consuming and may result in a delay of the proceedings. Where matters might take several days, we require that a single reporter is used. Good cause will be required to obtain permission for an exception. All financial obligations lie with the parties—there is no court reimbursement even in cases where one party has obtained a fee waiver. Stipulating parties should therefore be clear on their interparty arrangements at the outset.



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The judges very much appreciate the cooperation that we have received from the bar in undertaking this substantial change in our normal proceedings. We look forward, with you, to better budget times which would allow us to reinstate court-provided reporting in all judicial proceedings. s 1

2 resources/live/rule24_CourtReportingServices.pdf 3 resources/live/cv310_Stip&OrderToUseCS R&RptrAgreement.pdf

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Growing Trends in Today’s Legal World by Pete Tormey and Felix Antero


ore demanding clients, new technologies and globalization are taking an irreversible toll on the traditional law firm business model. Consequently, newer business models are cropping up, a development which offers more opportunities but also more risks for lawyers willing to conduct business differently. This article explores some of the trends in the profession and how they have affected our strategies for our law practice.

Trends in Legal Services Following the Great Recession, there has been a large increase in unemployed and underemployed lawyers, many of whom are young, inexperienced and saddled with crushing student loans. The collapse of the century-old firm Dewey & LeBoeuf, the trans-Atlantic mergers of giant white-shoe firms and cutbacks in budgets by local governments and judicial branches have only added to a general sense of pessimism among many practitioners in the legal profession, both young and old.

The pessimism, however, is partly misplaced because the fact is, the underlying demand for legal services has not abated much and is in fact growing. This demand for legal services is being met through “The Great Upender”—the Internet— where cheap-to-free legal services and information are overly abundant. This overabundance of free (albeit sometimes questionable) online information has taken a lot of the mystery out of the attorney-client relationship and made self-help a viable alternative for many legal consumers. As a result, prospective clients are better informed than before and searching for value-based legal services instead of the traditional hourly model where the lawyer acts as the knowledge gatekeeper. Unfortunately for many lawyers, but fortunately for the brave do-ityourselfers, the quality of online resources will continue to improve and online services such as Rocket Lawyer and LegalZoom will hone their business models to better meet

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the growing demand. Thus, a new law practice has to allow for these improvements and create a business model that can thrive in this environment.

Focus on Clients Even though today’s typical clients are better informed, the reality is they still have that underlying fear that caused them to seek legal help in the first place. This fear might be of losing everything in a divorce, risking criminal conviction or that a new business venture might fail. The opportunity for a viable practice starts with recognizing this underlying fear, understanding it fully and addressing it competently. For example, in our practice it is not uncommon for a client to call with questions about starting a new business, only to call back months later, after using an online incorporation service, with questions about how to operate this new business. Many lawyers might take umbrage at this, but we recognize that it isn’t just a new legal entity that the client needs, but the assurance that they are operating the new business properly—because of their underlying fear that they may have overlooked something that can end up hurting them. Accordingly, the opportunity for a law firm isn’t trying to sell the formalities of corpo-

rate filings but instead to focus on the higher value-added service of understanding and allaying the client’s fear. In business and commercial law, the changes are more pronounced but the opportunities are also bigger and better. Clients want their lawyers to provide more value instead of merely being another “cost center.” The corporate client is looking towards their lawyers more for problem-solving and business strategy than in the past; hence, lawyers with business degrees and substantial real-world business experience will provide more value to clients. The rise in joint MBA/JD programs reflects this trend. Thus, even though our clients have not specifically asked for lawyers with business experience, as a firm and individual lawyers, we emphasize our practical business experiences early on in our client relationships. Letting the clients

know we’ve been in their shoes helps assure them, strengthens the attorney-client relationship and provides us opportunities to address underlying business concerns as a value-added service.

Focus on Growth Areas Starting a law firm today requires an examination of growth areas where it is worth investing scarce marketing resources. Despite the gloomy outlook by many in the profession, there are in fact ample growth areas in law. These areas include regulatory compliance, international transactions and intellectual property, to name just a few. Regulatory compliance is particularly promising because as the global economy matures, the push for increased regulation will also boost demand for sophisticated business lawyers. In addition, we are creating a slew of new regulations in the financial, medical, environmental and energy industries which will

open doors to more opportunities. Despite jurisdictional limitations, globalization has actually expanded an American lawyer’s legal world, thanks in no small measure to the outsized impact of American laws internationally and the fact that global business transacts in English. Consequently, emerging markets are full of opportunities for an American lawyer able to guide clients in cross-border transactions and compliance with international regulations. Populous countries like China, India and Brazil are primary candidates (hence, the massive expansion of U.S. law firms there) because they are experiencing mind-boggling growth spurts across multiple industries and building new infrastructures which require more sophisticated legal systems. Some less populous but equally impressive growth stories are coming from the Southeast Asian, Middle East, North African and South American regions, such as Indone-



Growing Trends, cont. from page 15

sia, Philippines, UAE, Colombia and Peru, which are also looking for legal practitioners who know how to put together deals. Another noteworthy example is Qatar, which has set a goal to be an international commercial dispute resolution center open to parties from all over the globe. Qatar’s court is operating under “international common law,” which allows judges to draw from precedents across the common law world. Their bench includes a former Lord Chief Justice of England and Wales, a former Chief Justice of India and a former Australian federal court judge. Qatar and other forward–looking countries recognize that there is an unmet demand for international legal dispute resolution and are working to capitalize on it.

Elder Law is

Since the passage of Britain’s Legal Services Act of 2007, the legal landscape in the U.K. and all over Europe has undergone dramatic changes. With law firm structures there now changing to allow for partners who are not lawyers, one can expect other regions to follow suit. Practitioners hoping to make inroads into other international common law jurisdictions will be competing with law firms that have experienced finance and marketing people as full partners. These firms will change the dynamic between lawyers and clients who will be demanding new solutions across the business spectrum, not just in legal services. At the same time, modern marketing of law firms is likely to open opportunities for all lawyers in these areas as the public gets better educated.

Cash is Still King While many news outlets covered the Dewey collapse with ill-masked

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, approximately one in ten families has a relative with this disease. Of the four million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.

If the diagnosis is Alzheimer’s, call elder law attorney

Michael J. Young

Estate Planning, Disability, Medi-Cal, Long-term Care & VA Planning Protect your loved ones, home and independence.

Alzheimer’s Planning 16

MAY 2013


925.256.0298 1931 San Miguel Drive, Suite 220 Walnut Creek, California 94596

traces of “Schadenfreude,” countless small law offices shut their doors because clients could not pay their invoices. This is why it is critical to keep your expenses extremely low, especially if your practice is in an area where it is difficult to get clients to pay in advance. Fortunately, new online tools make it easy to create a virtual law office, including the ability to rent a professional-looking office anywhere in the world. For example, LiquidSpace aggregates business centers around the world and provides them at a low hourly rate. This lets a new practice operate in low-cost offices but still meet clients in a professional environment.

Relationships Are Key Regardless of new technologies and low-cost legal service providers, the attorney-client relationship will always be based on building and keeping the client’s trust. The client’s trust depends not only on how well you provide them your services, but also how good a resource you are overall. This means being responsive, staying up-to-date and cultivating a good referral network to handle cases that are beyond your capabilities or provide other know-how for the client’s business. Although new technologies and social media are affecting professional interactions, they are not a substitute for building a good network. A good network relies on knowing other lawyers well enough to trust your client with them. While there is no easy formula for assessing another lawyer, the more time you spend with the lawyer, the better feel you will have for their expertise. Thus, the usual advice for networking, such as using LinkedIn or going to mixers, is not sufficient to develop this level of trust. For us, this means spending considerable time with other attorneys, especially those not in our practice area. That is why we go out of our way to create or sponsor events

where lawyers come together for roundtable discussions about different areas of law so we can get a chance to interact with them, evaluate them and develop mutually beneficial relationships with them. The legal profession is undergoing massive structural changes that will be felt globally. Firms who are doggedly focused on clients, willing to venture into the growing geographic regions and fields of practice, able to keep their expenses low and build strategic relationships, are no doubt going to succeed. We are hoping and working hard to be one of them. s Pete Tormey manages the Intellectual Property Group of Antero & Tormey LLP. He has a BS in Electrical Engineering from San Francisco State University (Magna Cum Laude), an MBA from St. Mary’s of California (Marketing) and a JD from John F. Kennedy School of Law. His experience includes over 15 years of international sales and marketing and starting several technology companies. Felix Antero manages the International Transactions Group of Antero & Tormey LLP. He has a bachelor’s degree in Economics from the Ateneo de Manila University where he was a Far East Bank scholar. He earned his JD at John F. Kennedy School of Law. Before practicing law, he was involved in the international banking, lending and insurance industries.

Conference Room for Rent BASIC RATE $125 all day (over 5 hours) $70 half day (under 5 hours) $20 hourly CONCIERGE RATE $175 all day $100 half day Member Feedback: “I recently used the CCCBA’s ‘Concierge’ conference room services for a two-week arbitration. I was very pleased with the service we received. The staff was friendly and helpful, I didn’t have to deal with the hassle of ordering food for my clients, and having access to a computer, printer and photocopier made updating and disseminating documents to the parties involved very easy. “ ~ Palmer Madden

For more information, contact Theresa Hurley at or (925) 370-2548.

JAY CHAFETZ Personal Injury Trust & Estate Disputes Business Litigation Mediation (PI and Med Mal) Law Offices of Jay Chafetz 2033 N. Main Street Suite750 Walnut Creek, CA 94596

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925.933.5890 fax 925.933.5620

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You handle the estate, we do the contest. Cases, except conservatorships, often handled on a contingent fee basis, but can be hourly. Referral fee where appropriate. Pedder, Hesseltine, Walker & Toth, LLP oldest partnership in Contra Costa County (since 1955)

p 925.283-6816 • f 925.283-3683 3445 Golden Gate Way, P.O. Box 479 Lafayette, CA 94549-0479 AV Martindale-Hubbell



LAW PRACTICE MANAGEMENT SERIES 2013 3rd Tuesday of Each Month | 4:30 - 6 pm JFK University | 100 Ellinwood Way, Room S312 | Pleasant Hill DATE


Contact Theresa Hurley for a recorded version.

Business Plans and Business Development

May 21 4:30 - 6:30 pm

Social Media and Legal Ethics

DESCRIPTION Learn how smart, thoughtful business planning can dramatically improve your chances of success. Find out how to develop successful and authentic rainmaking and branding strategies.

CREDIT 1 hr General

Speakers: Steve Gizzi, Esq. | Pat Gillette, Orrick, Herrington & Sutcliffe, LLP Practical advice on how to engage in social networking with prospects and clients within the ethical parameters required by the California Rules of Professional Responsibility. Stay after for a hands-on demonstration of effective uses of social media.

1 hr General/ 0.5 hr Ethics

Speaker: Randy Wilson, Esq., DSD Law Site Solutions June 18 4:30 - 6 pm

Creating a Modern Law Practice

Learn techniques to create a cutting edge, high quality law firm, 1.5 hrs utilizing technology and online presence to dramatically increase General revenue. Explore the differences between law management practices from the past and the current trends that anyone can use to generate and sustain new business in this day and age. Speaker: Katharine Hooker, Family Law Group, LLP

July 16 4:30 - 6 pm

August 20 4:30 - 6 pm

Transitioning Attorneys and Their Practices

Learn how to work smarter, less and become more profitable, by 1.5 hrs General working on your legal business rather than in it.

BYOD (Bring Your Own Device)

1 hr Ethics/ Learn about ethical and professional responsibilities law firms face as lawyers and staff access client and confidential informa- 0.5 hr tion with mobile devices. Also, find out about what employment General laws your firm might be violating by requiring (or expecting) employees to be connected to work 24/7.

Speaker: Janice Brown, Esq., Beyond Law

Speakers: Sarah Banola, Cooper, White & Cooper | James Y. Wu, Law Office of James Y. Wu Sept. 17 4:30 - 6 pm

The New Healthcare Legislation

Find out how the 2014 health care reforms will impact the small employer (under 50 employees). Learn what you need to know for your practice, for your clients and as an employer.

1.5 hrs General

Speaker: Colleen Callahan, CLU, CASL, LUTCF

Cost per session: $20 for CCCBA members | $30 for Non-Members | $10 for Law Students Discount for signing up for the entire series! Early registration is encouraged (first program was standing room only) 18

MAY 2013

Please contact Theresa Hurley at | (925) 370-2548

Tax & Estate Attorneys Individual & Business Tax Issues Tax Preparation • Tax Planning • Tax Controversy Sophisticated Estate Planning • Estate Administration Trust & Estate Litigation • Probate

YOUNGMAN & ERICSSON 1981 N. Broadway, Suite 300 | Walnut Creek, CA 94596 | (925) 930-6000

Walter C. Youngman, Jr. Mark S. Ericsson Dani Altes, Paralegal

Chastity A. Schults, Partner Mayra Aviles, Paralegal



Solo Section


The Solo Section meets for a networking breakfast the third Wednesday of even-numbered months. Free for section members. For more information, visit the Solo Section page at Dan Pocklington, Alan Ramos and David Erb

February 21, 2013

n and herso stor p o t s i Pa Chr David Dean

Kent Parr

Emily De Falla and Ivette Santaella


MAY 2013

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Mary Grace Guzman Geoffrey Steele

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BRIDGING THE G February 22, 2013




The Women’s Section

Annual Wine Tasting & Silent Auction April 11, 2013 A tribute to the Hon. Joyce Cram on her retirement. Proceeds benefitted the Women’s Section Scholarship.

Many thanks to our Gold Sponsors: • Archer Norris • Casper, Meadows, Schwartz & Cook • Gagen, McCoy, McMahon, Koss, Markowitz & Raines

Hon. Steve Austin (AKA Judge Awesome)

For more photos, visit our Facebook page at!

Renee Livingston, Avery Kerr, Sabrina Axt, Janell Alberto and Deborah Moritz-Farr

Beth Mora, Michele Lane and Andrea Kelly Smethurst

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MAY 2013

Elizabeth Talbot, Mary Grace Guzman and Eliza Rodrigues

Karen Johnson, Pam Marraccini, Suzanne Boucher, Hon. Ellen James (Ret.), Lisa Reep and Natasha Chee

2013 MEXICO MCLE RELAX AND STUDY IN LUXURY October 12-19, 2013 RIU Palace mexico, Playacar

Attorneys, judges and families are invited to join the Contra Costa County Bar Association for the 2013 Mexico MCLE trip, October 12-19, to the Riu Palace Mexico, Playacar, Mexico. Playacar is located in the Mexican Riviera, just one mile from picturesque Playa del Carmen and has one of the most beautiful beaches in the world. Riu Palace Mexico is an all inclusive 4 star hotel offering delicious food, beverages, nightly live entertainment and optional excursions. Earn up to six MCLE credits including ethics and elimination of bias. Direct flights from SFO to Cancun are available. The cost is $1,500 per person plus $250 for MCLE credits. Significant others, family and friends are encouraged to attend.

For further information, contact Carolyn D. Cain at or Douglas W. Housman at Don't miss the fun and tell your friends! CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER


Tomorrow’s Lawyer by Mark Ericsson


oe is no ordinary Joe. He owns a high-tech company. Today he is hiring a marketing director. Joe goes to his computer and types “employment agreement marketing director” into Google. He finds templates and articles outlining the process and the issues. He drafts his agreement using one of the templates. However, he has a few issues that he feels require more expertise, experience and an understanding of his business. He emails the contract to his lawyer with the specific issues that he would like addressed. Is this where the practice of law is headed? If Joe were one of the larger British firms, he could have dialed into a collaborative effort by law firms that provide a computer program with a decision tree, which when


MAY 2013

filled out, produces a final draft of an employment agreement. English firms in this case act as the experts in a computer-programming project. Through Listservs, legal consumers ask others how they have solved their problems and compare costs. Is this where the practice of law is headed? The agent of change is the cost of legal advice and representation. The practice of law is going to change. Legal advice is too expensive. Lawyers are pricing themselves out of the market. Twenty-five years ago, the average partner pay at the nation’s top 100 law firms was 11 times higher than that of the average American worker. Today, it is 23 times higher. The 2010 median pay of a lawyer was $112,760 per year. Interestingly, the U.S. Bureau of La-

bor Statistics finds that when asked about work related experience or on-the-job-training, the response is “none.” As lawyers, we find every day that we have to tell clients that they can’t afford our services or we find that they cannot pay us once the services are provided. Who are the future clients who will be able to afford us? This is a question little addressed in law schools. There are basically large businesses, small businesses such as Joe’s business, the wealthy and the rest of us. It is fair to say that the first three categories are and will continue to become more sophisticated consumers of legal services and the fourth will lose access. The nature of recessions is changing. Until 1981, the country snapped out of a recession in six months. In

1990, it was 15 months; in 2001 it was 39 months. We are currently 64 months into what is a recession for those employed and a depression for those who are not. Companies have remained profitable by cutting costs, and legal costs have been at the top of their lists. In-house counsel budgets have been cut by 50 percent in some cases. About half of corporate counsel and private attorneys believe the recession will permanently change the way business is done in the legal industry. Companies are becoming more sophisticated when they go outside for legal representation. This has led to increased consolidation among the largest firms and the layoff of 9,500 lawyers in 2009 and 2010. That’s one in every 76 lawyers. The largest law firms are not addressing the new norm (more value for less fees) and as a result are losing business. I would expect a trickle-down effect to our smaller firms. Wealth in this country is becoming more concentrated. The top 1 percent owns 40 percent of the wealth, or 225 times the wealth of the typical American. The ratio of CEO annual compensation for the Fortune 500 companies to that of the typical worker is 234 to one versus 16 to one in Japan. Income growth for the bottom 90 percent has been 15 percent over the past 30 years. For the top 1 percent it has been 300 percent. Lawyers routinely raise their rates around 5 to 10 percent per year. This effectively eliminates the bottom 90 percent from representation. The number of people that can afford justice is rapidly diminishing. The wealthiest 1 percent can afford representation and will be willing to pay the premium for lawyers that can deliver (the Boies of the world). However, with money for expertise, one must assume that they, as well as the large corporations, will become more sophisticated consumers of legal services. Any analysis of the markets leads one to conclude that the price of legal advice and representation will come down. We will no longer be able to charge for work for which we are overqualified to do. Clients are driving change by pushing efficiency and demanding the use of the latest technology. Clients want to see value and are forcing firms to unbundle. Clients will seek lower-cost service providers including online services. Throughout the world, countries are allowing the practice of law to evolve. England (from where our law evolved) and Australia allow non-lawyers to provide many services considered legal. In America, we have LegalZoom, Axiom Law, Clearspire, Rocket Lawyer, Practical Law Company, Huron, Mindcrest, Pangea3 and Novus Law. Online dispute resolution has proved tremendously successful. New York City, using Cybersettle, saved $11.6 million during its first year of a demonstration project. SquareTrade, eBay’s preferred dispute resolution provider, offers two services: a free web-based

forum which allows users to attempt to resolve their differences on their own, or if necessary, the use of a professional mediator. Qatar is spending billions on developing a legal system that it hopes will facilitate incoming capital flows. Our position as the reserve capital of the world is based in part upon the availability of our courts and the stability of our statutory and case law. Today, we are dismantling our courts for lack of funds. Tomorrow’s litigators are going to have to navigate a world of less access and alternative dispute resolution options. Interestingly, American law students increasingly want to go to work for the government, a trend not seen elsewhere. In Joe’s case, lawyers provide three value-added services. We are the trusted advisor who provides customized advice for our clients based upon our knowledge of their situations, the provider of risk management compliance and the agent for dispute resolution and litigation. This is particularly true in risk management, which receives little emphasis in most law firms. We need to learn how to do each task most cost-effectively. We need to develop practices where Joe seeks the advice, experience or expertise that he cannot find online. We need to become experts in areas not widely understood. We need to become online providers, and probably available 24 hours a day or we risk losing our clients. And in this world of connectivity where the reply button is all too alluring, we need to become experts in quality control. Here in Contra Costa County, we have a million residents. One out of every 250 (3,938) residents is a lawyer, versus one out of 400 nationwide. Forty-two percent of us (yes, even me) are over 55. Twenty-eight percent have been in practice for less than five years or are under 35. I suspect that our county, which is primarily white and wealthy, will not be on the leading edge of change. But there is no question that the next 20 years will not mirror the last 20 years. It certainly gives us pause to think. s This article was adapted from a presentation made by Dick Frankel to the Contra Costa County Bar Association Board of Directors.

Mark Ericsson is a partner in the tax and business firm of Youngman & Ericsson, has served as the 2006 president of the CCCBA and is currently the chair of the Taxation Section. He has written over 30 articles on tax and business issues.



please visit Contra Costa Lawyer Online at to download the MCLE Self-Study test form and instructions.


MAY 2013

Ethical Guidelines for Practicing in a Virtual Law Office


irtual law practice is becoming increasingly popular as an alternative to the traditional physical law office. It typically involves the use of a secure internet portal to render legal services to, and communicate with clients.1 Advocates emphasize the decreased real estate and overhead costs, increased productivity and the work-life balance that may result from lawyers working from home. Critics stress the need for in-person client and team meetings to collaborate and solve complex legal problems. As shown by the recent stir created by the Yahoo! no-work-from-home policy, management concerns and the effect on employee morale are hotly contested issues. It is clear, however, that lawyers practicing in a virtual law office need to comply with employment laws and the rules of professional conduct. Employment law issues arising from operation of a virtual law office are similar to those arising from telecommuting policies. Virtual law firms should implement practices to address: (1) methods for tracking and reporting hours worked, meal and rest breaks; (2) preservation of confidential information; (3) employee privacy expectations, including monitoring computer usage and ownership of computers or other equipment; (4) harassment; and (5) workers’ compensation and safety issues. Virtual law practitioners must also consider the following ethical issues:

by Sarah Banola

California’s Rules of Professional Conduct Apply to Virtual Law Offices No California Rule of Professional Conduct specifically addresses lawyers who practice in virtual law offices. Rather, the same rules of professional conduct that apply to attorneys practicing in traditional law firms apply to attorneys practicing in a virtual firm.2 The application of the rules, however, raises unique issues for virtual law practitioners, particularly in regard to the following California Rules of Professional Conduct:3 • Rule 1-300 (Unauthorized Practice of Law). • Rule 1-400 (Advertising and Solicitation). • Rule 3-100 (Confidential Information of Client). • Rule 3-110 (Failing to Act Competently). • Rule 3-310 (Avoiding the Representation of Adverse Interests). • Rule 3-500 (Communication).

California lawyers and courts may also look to the ABA Model Rules and ethics opinions for guidance on practicing in a virtual law firm.4 Although the Model Rules do not specifically address virtual law firms, in August 2012, the ABA approved recommendations by the Ethics 20/20 Commission to amend the Model Rules to address issues regarding a lawyer’s use of technology, including: • Model Rule 1.1 (revising Comment [8] to confirm that the duty of competence includes “keeping abreast of ... the benefits and risks associated with relevant technology”). • Model Rule 1.4 (revising Comment [4] to reflect changes in communication technology). • Model Rule 1.6 (adding new paragraph (c) requiring lawyers to undertake reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or access to, confidential client information and adding comment [18] regarding safeguarding confidential client information). • Model Rule 1.18 (revising the rule and Comment [2] to clarify when electronic communications give rise to a prospective client-lawyer relationship). • Model Rule 5.3 (revising the title of rule and Comment [2] and adding Comments [3]-[4] to clarify a lawyer’s

duties when outsourcing legal work to non-lawyer service providers). • Model Rule 7.1, Comment [3], Model Rule 7.2, Comments [1]-[3], [5] and Model Rule 7.3, Comments [1], [3] (involving revisions that address a lawyer’s use of technology for client development). In addition to the Model Rules, several state bar associations have issued formal ethics opinions addressing ethical issues that arise from a lawyer’s practice of law through a virtual law office.5

Formation of Attorney-Client Relationship and Client Intake In communicating with prospective clients via a secure website portal, lawyers should avoid forming unintended attorney-client relationships by including disclaimers on their websites that “posted information is not legal advice” and that communication through the website does not create an attorney-client relationship or a duty of confidentiality. In addition, before entering into an engagement agreement, lawyers should obtain sufficient information from the client to screen for conflicts of interest and ensure that the party they are communicating with is the actual client or someone with authority to act on the client’s behalf.6



Virtual Law Office, cont. from page 27

Duty of Confidentiality Lawyers are also required to take reasonable measures to safeguard confidential client information on the website portal, including investigating and monitoring third-party providers, limiting access to confidential information and obtaining written assurances from the provider concerning data security and the handling of breaches of confidentiality.7 If a lawyer is not able to evaluate the security of the technology used, the lawyer must seek additional information, or consult with someone who possesses the requisite knowledge to ensure compliance with the lawyer’s duties of competence and confidentiality.8

Duty of Competence In addition to ensuring that confidential information is protected, the lawyer’s duty of competence includes implementing data backup systems for the paperless law office. In addition, the lawyer must supervise subordinate attorneys and staff who may be working in various physical locations to ensure compliance with the lawyer’s professional obligations.9

Duty of Communication Although the duty to keep the client “reasonably informed about significant developments” and “to promptly respond to reasonable requests for information“10 may seem easier through electronic communication, the attorney should ensure that the client is receiving and understanding the information exchanged via the website portal.11 In certain circumstances, phone conferences, video-conferences or inperson meetings would be prudent.

Duty of Candor in Advertising and Marketing To avoid claims of misleading or false statements under CRPC 1-400 and corresponding State Bar Act provisions, lawyers should disclose to potential clients the nature and composition of the firm’s virtual law office, relevant practice areas and the jurisdictions where its lawyers are licensed to practice.


MAY 2013

Avoiding Unauthorized Practice of Law Because a virtual law firm’s audience reaches across jurisdictions, lawyers must avoid the unauthorized practice of law when responding to requests from potential clients outside the jurisdictions where the lawyers are admitted to practice. In California, engaging in the unauthorized practice of law is not only a basis for discipline, it is a misdemeanor.12 What constitutes the practice of law is a fact-specific determination that is the subject of California case law.13 Under the Model Rules, Rule 5.5(b)(1) prohibits a lawyer from establishing a “systematic and continuous presence” for the practice of law in a jurisdiction in which the lawyer is not admitted to practice. While Comment [4] provides that a lawyer’s “presence may be systematic and continuous even if the lawyer is not physically present” in the jurisdiction, the rule provides no other guidance on when virtual practice is sufficiently “systematic and continuous” to require that the lawyer be licensed in that jurisdiction. On June 19, 2012, the Ethics 20/20 Commission published an “issues paper” proposing several options to clarify when virtual practice in a jurisdiction is “systematic and continuous,” including identifying relevant factors that lawyers and disciplinary authorities should consider and referring the issue to the Standing Committee on Ethics and Professional Responsibility for an ethics opinion. Although the Commission received substantial feedback, it ultimately decided to defer the issue as virtual law practice and the pertinent technology continues to develop.14 Virtual law practice offers many potential benefits, but also presents distinct issues regarding a lawyers’ compliance with the existing rules of professional conduct. While California’s rules of professional conduct may not keep pace with the evolving nature of virtual law practice, virtual law practitioners need to stay abreast of changes in California’s rules, and should remain alert to new ethics opinions, amendments to the Model Rules and law practice management standards15 addressing virtual law practice. s


A virtual law office has been defined as the “delivery of, and payment for, legal services exclusively, or nearly exclusively, through the law firm’s portal on a website, where all of the processing, communication, software utilization, and computing will be internet-based.” Cal. State Bar Formal Opn. 2012-184. 2

Cal. State Bar Formal Opn. 2012-184.


The California State Bar Commission for the Revision of the Rules of Professional Conduct recommended, and the State Bar Board of Trustees has approved, proposed revisions to California’s rules of professional conduct that conform in style and format to the American Bar Association’s Model Rules, and contain many substantive provisions similar to those in the Model Rules. These proposed revisions are currently under consideration for adoption by the California Supreme Court.


CRPC 1-100(A); Vapnek, Tuft, Peck & Wiener, Cal. Prac. Guide: Professional Responsibility, ¶¶1:88-90 (The Rutter Group, a division of West, a Thomson Reuters business, 2012).

MCLE SELF-STUDY TEST To download the test form and instructions for this Self-Study MCLE article, visit and click on the Self-Study MCLE link in the top menu. If you prefer to receive the test form via email, please contact Theresa Hurley at or (925) 370-2548.


See, e.g., Cal. State Bar Opn. 2012-184; Penn. State Bar Opn. 2010200; Florida State Bar Opn. 00-4.


See Cal. State Bar Formal Opn. 2012-184.


See Cal. State Bar Formal Opn. 2012-184.






CRPC 3-500


See Cal. State Bar Formal Opn. 2012-184.


Bus. & Prof. C. § 6126.

NEED MORE MCLE CREDITS? Visit our calendar to browse upcoming MCLE programs: g/ www.cccba.or ar/ d attorney/calen


See, e.g., Birbrower, Montalbano, Condon & Frank, P.C. v. Sup. Ct. (1998) 17 Cal.4th 119.


ABA Commission on Ethics 20/20, House of Delegate filing (February 2013) available at: dam/aba/administrative/ethics_2020/20121112_ethics_20_20_ overarching_report_final_with_disclaimer.authcheckdam.pdf.

15 See, e.g., ABA Law Practice Management Section eLawyering Task Force, “Suggested Minimum Requirements for Law Firms Delivering Legal Services Online” (Oct. 15, 2009).

Or choose from our MCLE Self-Study programs - we offer self-study articles, audio and video programs:

Sarah Banola is a litigation attorney at Cooper, White & Cooper LLP’s San Francisco office. Ms. Banola represents lawyers and law firms in matters related to legal ethics, legal negligence, attorney-client fee disputes, professional discipline, conflicts of interest, disqualification motions and law firm breakups. Ms. Banola is a contributing editor to the professional responYoungman & Ericsson, LLP sibility chapter of the California 1981 North Broadway • Suite 300 Practice Guide on Employment LitWalnut Creek, CA 94596 igation and the legal malpractice section of the California Practice Guide on Claims and Defenses (The Rutter Group, a division of West, a Thomson Reuters business, 2012). She also serves as Secretary of the Bar Association of San Francisco’s Legal Ethics Committee.

g/ www.cccba.or e/ cl /m attorney y.php other-self-stud

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ethics corner

The Good, the Bad and the Ugly With Online Reviews by Carol Langford


search on the business rating site Yelp for attorneys in San Francisco yields 5,681 results. Although Yelp and similar sites are probably best suited for restaurants and night clubs, many people use the site to review professionals. These reviews influence potential clients. The, a blog for legal professionals, recently polled a thousand people with the question: “When you need to find a specialty lawyer, how would you start your search?” Twenty-two percent said that they search Google or another search engine, 10 percent said that they “look elsewhere on the internet” and 2 percent said that they “ask on my favorite social network.” Yelp is not the best indicator of an attorney’s ability—but most people using Yelp don’t know that. Most experiences with Yelp reveal that generally bad restaurants get bad reviews and good restaurants get good reviews. However, some places of business and now some attorneys either pay people to write good reviews or ask their dearest friends to rate their lawyering skills online. Thus, inexperienced lawyers who are savvy with social networking can have outstanding reviews and


MAY 2013

more seasoned, but less Internetsavvy, attorneys can have bad reviews and not even know about it. In some instances, attorneys might be rated for things that have nothing to do with their legal abilities. There is really no way to tell why someone rated a particular attorney with high marks. However, the troubling question is, what can a lawyer do to fight back when he or she receives a negative review on Yelp? According to some ethics experts: not much. In the Los Angeles County Bar Association’s Formal Ethics Opinion #525, the authors concluded that

usually within their rights to log onto social media sites and trash their attorney, as long as they don’t knowingly make false statements— a hard standard to prove. Further complicating matters is the attorney-client privilege, which restricts the attorney as to what he or she can say to respond, if that requires divulging privileged information. For instance, imagine a client that hired a personal injury attorney with unreasonable expectations of receiving millions of dollars in settlement, or a client that ended up slighted in a divorce settlement because of his or her own bad be-

“The troubling question is, what can a lawyer do to fight back when he or she receives a negative review?” any public response to a negative review online must not “disclose confidential information,” must “not injure the former client in any matter involving the prior representation” and must be “proportionate and restrained.” The part about not disclosing confidential information can leave attorneys at a huge disadvantage when responding online.

havior. The client could then go on Yelp, Avvo,, Angie’s List, etc., and tell the world that the attorney botched the case. In this situation most people would reasonably want to defend themselves against these accusations by pointing out the client’s own bad behavior. But as lawyers we cannot. So what can we do?

Because opinions are protected by the First Amendment, clients are

A professional can always sue over a bad review for defamation—

to pay more than $80,000 in attorney’s fees to her patient and Yelp. The judge ruled in that case that California’s stringent anti-SLAPP law could be applied because the patient had mentioned mercury fillings in her review, and thus the review furthered discussion of an issue of public interest. Even Yelp’s spokeswoman Kristen Whisenand recommends against using the “nuclear option” and suing for a negative review. Why? Because it usually only brings more attention to the negative review—which is what the professional didn’t want in the first place. For example, in 2007, the New York Times reported about attorney John Henry Browne who sued the lawyerranking site Avvo alleging that his 5.7 (out of 10) ranking was damaging to his law practice. A federal judge held that the reviews were protected under the First Amendment right to express opinions and dismissed the case. The case brought more public notice to the negative Avvo reviews that the attorney wanted removed in the first place. A search of the same attorney now shows that he was able to raise that number to 6.6, so maybe he learned a thing or two since then. Or maybe he simply became more Internet-savvy and learned how to work the system.


but only if the statements made in the review were false. Even then, it’s probably not a good idea. The Associated Press recently reported about a Minneapolis Neurologist, David McKee, who sued a patient’s son for defamation after he wrote a scathing review, including disparaging comments allegedly said by the doctor to him and his family following his father’s stroke. McKee claims that the statements attributed to him were not true. This particular case has not been decided, but such suits are rarely successful. A study by Eric Goldman, a professor at Santa Clara University School of Law, revealed that of the 28 physicians who have recently filed similar suits, 16 of them were dismissed and six of them settled. The outcome of such suits can be devastating. In a July 13, 2009, article the San Francisco Chronicle reported about a California dentist, Yvonne Wong, who sued a patient and Yelp after the patient posted a negative review on Yelp’s site. Ultimately, Ms. Wong was ordered

The best option for attorneys is to check the ratings websites, and respond to the reviews in a friendly, proactive manner. For example, one San Francisco attorney with a rating of 2.5 stars on Yelp (out of 5 possible stars) responded to each and every one of his negative reviews in a polite manner that did not divulge privileged information. Although measures such as these may seem distasteful, the reality is that social media exists, people do check it when searching for an attorney, and the only thing attorneys can do is to stay on top of things. s Carol M. Langford has a practice in State Bar defense and professional licensing disputes in Walnut Creek. She teaches professional responsibility as an adjunct at U.C. Berkeley, Boalt Hall School of Law and Hastings College of the Law. Additionally, Ms. Langford serves as an expert witness in cases involving complicated ethics issues and presents at conferences and symposiums across the state. She is a past Chair of the California Committee on Professional Responsibility and Conduct.



inns of court

Legal Jeopardy!


he best Inns Of Court presentations get all of its members involved. Instead of just having a group standing up performing for their adoring fans in the audience, the best groups make the adoring fans part of the performance. Judge Maier’s group (starring Erika Littlefield, Lisa Mendes, Matthew Mraule, Nick Casper, Nicholas Jay, Janine Ogando, Patrick Perez, Scott Reep, Laureen Bethards and John Warnlof) proved this old saw one more time with a great “Legal Jeopardy!” presentation at the March 14, 2013, meeting. If you’ve ever watched an episode of “Jeopardy!,” seen the ”Saturday Night Live” always hilarious “Celebrity Jeopardy!” skits, or even caught any part of the “E! True Hollywood Story” on Alex Trebek, you know how “Jeopardy!” works. They give you the answer, you give them the question! The twist here is that all of the categories were legal in nature. Even the “Movies” category related to law movies, like the always realistic “Jury Duty” (Pauly Shore’s greatest role). The most basic questions were fairly easy; most practitioners in that field would quickly get them. However, the difficulty quickly escalated and most teams spent the entire night in the negative. Yes, it’s true. An entire room full of veteran


MAY 2013

attorneys and judges got the vast majority of the questions ... wrong. Partial credit should go to Judge Maier’s group for crafting increasingly challenging questions. However, more of the credit (or blame) should go to the groups for buzzing in too soon or failing to answer in the form of a question. These are basic “Jeopardy!” tenets, yet they tripped up so many groups. Groups had plenty of enthusiasm for the rules of the game and were not bashful about alerting Judge Maier’s group when the answering groups made the most basic mistakes. When it comes to a raucous energy at an Inns Of Court meeting, you don’t have to turn up the stove too much to get that water to boil. Inns President Scott Reep played Alex Trebek, but went old school Trebek, donning a perm wig and rocking a red blazer. He wielded a buzzer like it was a light saber, striking down the groups that dared answer incorrectly (although, it should be noted, that actually didn’t make them more powerful than you could ever imagine). The groups careened helplessly towards “Final Jeopardy!,” sadly arriving to the championship round mostly empty handed. Only two groups were actually in the positive, which meant that only two groups could even really take part

by Matthew Talbot in “Final Jeopardy!” It came down to Judge Cram’s group (my group) versus Judge Mockler’s group for all the marbles! Judge Mockler’s group was up by approximately $2,000, so they had the advantage. Before we received the “Final Jeopardy!” answer, both groups had to enter our wagers. Our group decided to bet a single dollar, pinning our hopes on Judge Mockler’s group failing. It was the conservative play and I was concerned. Were we betting not to lose? But I was assured it was the way to go. Plus, you have to have hope. The “Final Jeopardy!” answer came in: “This justice said: ‘It is better, so the Fourth Amendment teaches us, that the guilty sometimes go free than the citizens be subject to easy arrest.’” We guessed Justice Douglas, which was correct! Judge Mockler’s group guessed another, incorrect justice. What’s more, they had wagered so much money that they fell behind us into second place! Our $1 betting plan had worked! Clear Eyes, Full Hearts, Can’t Lose! It was an extremely successful evening that helped bring the Inns Of Court community together in a fun and funny way. s

The next Inns of Court meeting is May 9, 2013, at the Lafayette Park Hotel. To learn more about the Inns Of Court and get involved, contact President Scott Reep at 707.748.0900 or

Northern California Mediator / Arbitrator 16 years as Mediator 25 years as Arbitrator 33 years in Civil Practice

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How have the court budget cuts affected you?

Unlawful Detainer matters have been severely impacted because of the budget cuts. UD’s have been “farmed” out to several different departments within the Superior Court in Martinez, Richmond and Pittsburg. After the closing of the Concord Court, and Walnut Creek Court only doing traffic, it has put a strain on all of our summary proceedings. In some cases, the Superior Court Judges in Martinez would call their regular civil calendar and after an hour or so, would then call the UD calendar. Since then, Commissioner Richards has gone back to doing UD’s in Pittsburg and Richmond as well as his busy traffic calendar, and for that we are truly grateful! In addition, the assistance of the volunteer attorneys serving as pro tems has made an improvement on the flow of the UD and small claims calendars. However, a regular presiding Commissioner would be extremely beneficial, at least for the Martinez calendar.

Terri L. Brewer

In October, 2012 a three day trial was set for August, 2013. While this is a case of some significance and while the issues are limited to support and fees, this is the earliest we could get on the calendar of the particular judge to whom we were assigned. That individual is no longer handling family law.

Anonymous My largest commercial collection client has stopped litigating in California because of the delays in the Courts state-wide, including Contra Costa County. The client, which is located in Illinois, has determined that with the delays and increased fees, suing does not make economic sense. The paralegal assigned to California accounts is no longer employed by the client. My income will be reduced as a result of the cutbacks.


I am presently participating in complicated property damage—inverse condemnation jury trial in Department 13 before Judge Brady (Kelly v. CCWD). Due to the recent budget cut-backs, our trial time has been basically limited to four (4) afternoons per week, with an occasional Friday morning thrown in when the Court can arrange the schedule. The pace of the trial is very slow given only 2 ¾ hours per day. After four weeks of trial, plaintiffs’ counsel is still presenting his case. The jury is getting antsy, and just yesterday the Bailiff informed us that several jurors are concerned with their availability should the trial go past April 15th, which it surely will. Judge Brady fears we will lose some jurors which could result in a mistrial. These budget cuts have increased the cost of trial, created witness scheduling difficulties, caused witnesses, most of whom are experts charging for their time, an undue burden of returning to court for multiple days, and prevented the court from hearing other trials.

Craig L. Judson

Bold Polisner Maddow Nelson & Judson


MAY 2013


May 8 | Family Law Section

May 29 | CCCBA

View From the Bench New Judges

Fast Track Bench/Bar Roundtable

more details on page 36 May 10 | Employment Law Section

Violence in the Workplace: Employer Obligations, Legal Issues and Threat Assessments more details on page 36 May 15 | Business Law & Corporate Counsel and Litigation Sections

The Ever Evolving Enigma of ESI (Electronically Stored Information) and its Ethical Obligations more details on page 36 May 17 | Real Estate Section

Diversity: Special Challenges for the Commercial Real Estate Bar more details on page 36 May 21 | CCCBA

Social Media & Legal Ethics - Part 2 of the Law Practice Management Series more details on page 36 May 23 | CCCBA

Get to Know Your Local Judges

more details on page 37 June 6 | Barristers, Litigation and Pro Bono Sections

Deadlines, Depositions & Discovery For the New Attorney (Part 3: Discovery) more details on page 37 June 6 | Family Law Section

How to Handle the Allegations of Sexual Molestation more details on page 37 June 18 | CCCBA

Creating a Modern Law Practice - Part 3 of the Law Practice Management Series more details on page 37 June 27 | Women’s Section

CCCBA All Sections’ Summer Mixer more details on page 37 October 12-19 | CCCBA

Mexico MCLE more details on page 23

more details on page 36

For up-to-date information on programs, please visit and/or subscribe to our weekly “Events & News” email. To subscribe, text CCCBA to 22828.



May 8 | Family Law Section

May 10 | Employment Law Section

View From the Bench - New Judges

Violence in the Workplace: Employer Obligations, Legal Issues and Threat Assessment

Speakers: Hon. Barbara Hinton Comm. Anita Santos Hon. Ed Weil Time: 12 pm – 1:15 pm Location: Contra Costa Country Club 801 Golf Club Rd., Pleasant Hill

Breakfast is included. Speakers: James Cawood, Threat Assessment Expert, Factor One Thomas Klein, Esq., TKlein Associates, Inc.

The Ever Evolving Enigma of ESI (Electronically Stored Information) and its Ethical Obligations Wine and cheese reception to follow.

Cost: $50 for section members and law student members, $75 for CCCBA members, $100 for non-members

Moderators: Andrea Kelly Smethurst Shannon Walpole

Speakers: Hon. Steve Austin Jonathan Redgrave, Esq. Kirk Pasich, Esq. Jeffrey Rabkin, Esq. Roger Brothers, Esq.

Time: 8 am – 9:15 am

Moderator: Linda DeBene, Esq.

Registration: Go to the Family Law website at

Location: Scott’s Seafood 1333 N California Blvd., Walnut Creek

Time: 3:30 pm – 5:30 pm

More Info: Contact Therese Bruce at (925) 930-6789

MCLE: 1 hour general credit

MCLE: 1 hour general credit

Cost: $30 for section members, $25 for law student members, $35 for CCCBA members, $45 for non-members Registration: Online at More Info: Contact Theresa Hurley at (925) 370-2548

Location: JAMS Office Conference Room 1255 Treat Blvd. #700, Walnut Creek MCLE: 1 hour general credit, 1 hour legal ethics credit Cost: $30 for CCCBA members, $35 for nonmembers Registration: Online at More Info: Contact Theresa Hurley at (925) 370-2548

May 17 | Real Estate Section

May 21 | CCCBA

May 23 | CCCBA

Diversity: Special Challenges for the Commercial Real Estate Bar

Social Media & Legal Ethics - Part 2 of the Law Practice Management Series 2013

Get to Know Your Local Judges

Speaker: Elaine Andersson, Bricta Media LLC Time: 7:30 am – 9 am Location: Scott’s Seafood 1333 N California Blvd., Walnut Creek MCLE: 1 hour elimination of bias in the legal profession credit Cost: Free for section members, $5 for law student members, $15 for CCCBA members, $35 for non-members Registration: Online at More Info: Contact Theresa Hurley at (925) 370-2548

This program is designed to provide you with practical advice on how to engage in social networking with prospects and clients within the ethical parameters required by the California Rules of Professional Responsibility. Stay after for a hands-on demonstration of effective uses of social media. Speaker: Randy Wilson, Esq., DSD Law Site Solutions Time: 4:30 pm – 6:30 pm Location: John F Kennedy University 100 Ellinwood Way, Room S312, Pleasant Hill MCLE: 1 hour general credit, 0.5 hours legal ethics credit Cost: $10 for law student members, $20 for CCCBA members, $30 for non-members Registration: Online at More Info: Contact Theresa Hurley at (925) 370-2548


May 15 | Business Law & Corporate Counsel and Litigation Sections

MAY 2013

Join us for an opportunity to get to know members of our local bench on a one-to-one basis. Enjoy refreshments and conversation with Assistant Presiding Judge Austin and Judges Laettner, Mockler and Johnson. Hosted by Steele, George, Schofield & Ramos LLP. Time: 5:30 pm – 7 pm Location: Steele, George, Schofield & Ramos 3100 Oak Rd., Suite 100, Walnut Creek Registration: Online at More Info: Contact Theresa Hurley at (925) 370-2548

May 29 | CCCBA

Fast Track Bench/Bar Roundtable Members of the CCCBA are invited to attend a meeting with Fast Track Supervising Judge Craddick and other Fast Track judges to discuss issues of general interest or concern. The judges would like to know what’s on your mind. Please submit discussion topics to the Bar Association by May 24 via email to Theresa Hurley at Lunch is included. Speakers: Hon. Steve Austin Hon. Laurel Brady Hon. Judith Craddick Hon. David Flinn Hon. Barry Goode, Presiding Judge Time: 12 pm – 1:30 pm Location: Wakefield Taylor Courthouse Dept 9, 725 Court St, Room 320, Martinez MCLE: 1 hour general credit Registration: Online at More Info: Contact Theresa Hurley at (925) 370-2548

June 6 | Barristers, Litigation and Pro Bono Sections

Deadlines, Depositions & Discovery for the New Attorney (Part 3: Discovery) This is a three-part series. Part 3 will examine all the new and relevant issues surrounding discovery in civil cases in California. Lunch is included. Speaker: Geoffrey Steele Time: 11:30 am – 1:30 pm Location: CCCBA Office 5th Floor Conference Room 2300 Clayton Road, Concord MCLE: 1.5 hours general credit Cost: $20 for section members and law student members, $25 for CCCBA members, $35 for non-members

CCCBA All Sections’ Summer Mixer, Hosted by the Women’s Section

Learn techniques to create a cutting edge, high quality law firm, utilizing technology and online presence to dramatically increase revenue. This program will explore the differences between law management practices from the past and the current trends that anyone can use to generate and sustain new business in this day and age.

Location: Pyramid Alehouse 1410 Locust St., Walnut Creek

MCLE: 1.5 hours general credit Cost: $10 for law student members, $20 for CCCBA members, $30 for non-members Registration: Online at More Info: Contact Theresa Hurley at (925) 370-2548

Time: 12 pm – 1:15 pm Location: Contra Costa Country Club 801 Golf Club Rd., Pleasant Hill MCLE: 1 hour general credit Cost: $50 for section members and law student members, $75 for CCCBA members, $100 for non-members Registration: Go to the Family Law website at More Info: Contact Therese Bruce at (925) 930-6789

Time: 5:30 pm – 8 pm

Cost: Free for section members, $20 for CCCBA members, $20 for non-members Registration: Online at More Info: Contact Theresa Hurley at (925) 370-2548


Creating a Modern Law Practice Part 3 of the Law Practice Management Series 2013

Location: John F Kennedy University 100 Ellinwood Way, Room S312, Pleasant Hill

Speaker: Victoria Coad, Ph.D.

More Info: Contact Theresa Hurley at (925) 370-2548

June 27 | Women’s Section

Time: 4:30 pm – 6 pm

How to Handle the Allegations of Sexual Molestation

Registration: Online at

June 18 | CCCBA

Speaker: Katharine Hooker, Partner, Family Law Group, LLP

June 6 | Family Law Section




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MAY 2013


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MAY 2013

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