Contra Costa Lawyer, May 2015

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Contra Costa

LAWYER Volume 28, Number 3 | May 2015

Premarital Agreement Season is Here: Give Your Approach a Tune-up page 6 Does Your Client Have the Capacity to Get Divorced? page 9 Frozen Embryos: When Constitutional Law Trumps Family Law page 14


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MAY 2015

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Contra Costa  2015 BOARD OF DIRECTORS Nicholas Casper President Elva Harding President-Elect Philip Andersen Secretary James Wu Treasurer Stephen Steinberg Ex Officio Ericka Ackeret Dean Barbieri Oliver Bray Mary Carey Wendy McGuire Coats Michelle Ferber

Peter Hass Reneé Livingston David Marchiano Laura Ramsey Katherine Wenger

LAWYER Volume 28 Number 3 | May 2015

The official publication of the

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

FEATURES PREMARITAL AGREEMENT SEASON IS HERE: GIVE YOUR APPROACH A TUNE-UP by Anne Freeman

DOES YOUR CLIENT HAVE THE CAPACITY TO GET DIVORCED?

CCCBA   EXECUTIVE   DIRECTOR Theresa Hurley | 925.370.2548 | thurley@cccba.org CCCBA main office 925.686.6900 | www.cccba.org LRIS Coordinator Systems Administrator and Fee Arbitration Coordinator

IS YOUR CLIENT AN INNOCENT SPOUSE?

Dawnell Blaylock

by Christina Weed

Communications Elizabeth Galliett Coordinator Education and Programs Coordinator

Jennifer Comages

FROZEN EMBRYOS: WHEN CONSTITUTIONAL LAW TRUMPS FAMILY LAW (FROZEN SERIES PART 2)

Membership Coordinator

CONTRA COSTA LAWYER Harvey Sohnen Suzanne Boucher 925.258.9300 925.933.1500

Nicole Mills Patricia Kelly

925.351.3171 925.258.9300 David Pearson BOARD LIAISON 925.287.0051 Candice Stoddard 925.942.5100 Samantha Sepehr 925.287.3540 COURT LIAISON Andrew Verriere Stephen Nash 415.699.0646 925.957.5600 James Wu PRINTING 925.658.0300 925.681.1774

510.847.8523

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 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.

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by Suzanne Boucher

CO-EDITORS EDITORIAL BOARD

PHOTOGRAPHER Moya Fotografx

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by Cindy Frazier Bilsborough

Barbara Arsedo Emily Day

Steven’s Printing

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DIVORCE AND THE CLOSELY-HELD CALIFORNIA BUSINESS OWNER

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HOPKINS’ CHOICE

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by Erin D. Hollis

by Justice James Marchiano (Ret.)

DEPARTMENTS

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INSIDE | by Suzanne Boucher

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PRESIDENT’S MESSAGE | by Nick Casper

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LAW PRACTICE MANAGEMENT SERIES 2015

20 CENTER | Theresa Hurley’s Welcome Celebration [photos] Comedy Night Invitation 24

CHILDREN, FAMILIES AND THE LAW (CFL) PROGRAM AT JFKU COLLEGE OF LAW | by Commissioner Josanna Berkow (Ret.)

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FAMILY LAW AND YOUR LRIS | by Barbara Arsedo

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ETHICS CORNER [MCLE SELF-STUDY] | by Carol M. Langford

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INNS OF COURT | by Matthew Talbot

34 CALENDAR 38 CLASSIFIEDS

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inside Suzanne Boucher

When Constitutional Law Trumps Family Law” discusses how the disposition of frozen embryos are neither property nor a child, and triggers an analysis of the constitutional right to privacy in making a determination in the dissolution action. “Divorce and the Closely-held California Business Owner” addresses the questions that all business owners need to consider when a divorce is imminent.

A

ttorneys who do not practice family law are always questioning how I can do family law, saying, “It must be so stressful!” Having practiced civil litigation for five years before I opened my family law practice in 1996, I can confirm that all litigation can be stressful. The thing that I like most about practicing family law is that no two cases or clients are the same, and there are so many interesting issues that arise—from child custody and child development issues to child and spousal support. There are also complex property issues including valuing businesses, real estate and retirement plans, tax consequences and bankruptcy issues, estate planning and litigation over pre- and postmarital agreements, etc. Family law cases have the potential to cross over with almost every other practice area. It was my goal for this edition of the Contra Costa Lawyer to highlight a few of the crossover issues that can arise in a family law case.

Anne Freeman’s article “Premarital Agreement Season is Here: Give Your Approach a Tune-up” discusses issues that arise before the wedding and how to advise clients on this often thorny issue. Cindy Bilsborough’s article “Does Your Client Have the Capacity to Get Divorced?” explains the issues that can arise during a divorce when there are questions regarding the client’s capacity to get a divorce or to enter into any agreements during the divorce proceedings, and the steps attorneys can take when these situations occur. Christina Weed’s article “Is Your Client an Innocent Spouse?” addresses a crossover issue in tax law that can arise in divorce cases. The article “Frozen Embryos:

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In our spotlight article, Josanna Berkow, a retired family law commissioner from Contra Costa County provides an overview of the Children, Families and the Law Program at JFK University. Hopefully this program will get more law students and attorneys interested in the practice of family law. And in “Family Law and Your LRIS,” you can learn about the ways the LRIS can help both clients and attorneys in family law. Carol Langford’s “Ethic’s Corner” column addresses the age-old questions: “What should a lawyer do when the client does not want to follow the lawyer’s advice?” and “What if the client insists on a course of conduct that the lawyer is convinced is not in the client’s best interests?” You can get the answers and take the MCLE self-study test to earn one hour of ethics credit. Finally we have an added treat for readers in this issue—a short story by Justice James Marchiano (ret.) involving a fictional Judge Carlton family law story based on a real case with some embellishments. The actual case was settled short of the resolution that appears in the story. Previous “Stories from the Bray Building” involving Judge Carlton have dealt with civil law, criminal law, conservatorship, legal ethics and jury trials, but family law was missing. I am glad that he could write a story that all of us animal lovers can relate to. I hope this issue demonstrates how family law issues can arise in most practice areas and how we need to work together to address these complex legal issues. s Suzanne N. Boucher, Esq., is a certified family specialist. Her practice, located in Walnut Creek, focuses on complex family law matters in Contra Costa and Alameda counties. Correction to the March 2015 “Tax Law” edition: “Same-Sex Marriage … Same Taxes?” The question and answer referring to registered domestic partners was intended to be “unregistered domestic partners.”


president’s message

T

elevision has had a long and storied fascination with the law. Perhaps the torchbearer of the courtroom drama was “Perry Mason,” a noir-inspired adaptation of the literary character who, against impossible odds, was always able to prove his client wrongly accused through sheer lawyerly guile, often with the real murderer confessing on the stand. This formula continued in the 1980s with “Matlock,” when Andy Griffith played the country lawyer who repeatedly secured acquittals with dramatic trial moments, often exposing a key inconsistency in the star prosecution witness’s story or establishing an airtight alibi that somehow had slipped through the cracks. The list of legal shows is extensive—from the madcap and zany “Night Court” and “Ally McBeal,” to the countless iterations of the “Law & Order” cops and lawyers shows. Current shows such as “Damages” and “Suits” prove that TV’s love affair with the law is as strong and unwavering as ever.

Nick Casper CCCBA Board President the show was “Breaking Bad,” one of the most gripping, tense and in my opinion, flawless, shows ever to grace the small screen. For those who are unfamiliar, “Better Call Saul” is the origin story of Jimmy McGill/Saul, a drifterturned-small-time-lawyer in Albuquerque. Although the show is in its early stages, presumably the show’s arc will track the transformation of Jimmy from an earnest, struggling attorney to the unscrupulous drug lawyer Saul Goodman featured in “Breaking Bad.” The show, like its “Breaking Bad” predecessor, is a testament to the storytelling prowess of creator Vince Gilligan, who is unrivaled in fleshing out complicated, flawed antiheros that you can’t help but root for.

The varied shows’ lack of fidelity to sound legal doctrine is beside the point—the shows are entertaining! And let’s be honest: If shows focused on the reality of the practice of law, with lawyers slogging through 100 special interrogatories and taking 6-hour depositions, audiences would be bored to tears.

Legal Drama

Since the time I have been practicing, I have managed to avoid the legal dramas because I can’t muster the necessary suspension of disbelief to go along with the writers’ conceptions of how the law works. I know too much; I would be an insufferable TV viewing partner. You can’t have a surprise witness without disclosing the individual in discovery! How did we just go from a preliminary hearing to a trial the following week?! There is no way that character evidence would ever be admitted! Recently, this all changed for me with the debut season of “Better Call Saul.” My “gateway drug” into

But even this smart show has led me down the path of obnoxious, insider disbelief. In recent episodes, Jimmy scribbled a demand letter on toilet paper and served it on a retirement home committing fraud, and in the next scene, powerful lawyers representing the facility descend to negotiate a settlement. Huh?

And these same lawyers threaten Rule 11 sanctions if Jimmy does not drop the matter. Oh, really? Wouldn’t a lawsuit first need to be filed so that a court even has jurisdiction to entertain such a motion? Nitpicking aside, “Better Call Saul” has made me realize why audiences continue to be enamored with the legal world—the stories are fundamentally about the search for truth, something that no other field is singularly focused on finding.

Even the exciting moments of my practice, such as impeaching a trial witness with inconsistent deposition testimony, wouldn’t exactly translate to dynamite television. Our practices, although more mundane, are constantly filled with twists and turns, of unexpected shifts in which side has the upper hand. If television wants to amplify the drama by taking liberties, so be it. At least with “Better Call Saul,” I am on board. s As an associate with Casper, Meadows, Schwartz & Cook since 2007, Nick Casper represents injured individuals in cases involving catastrophic injury, wrongful death, medical malpractice, employment discrimination/harassment and civil rights violations. Nick has been lead counsel in five civil jury trials.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Premarital Agreement Season Is Here: Give Your Approach a Tune-up by Anne Freeman

H

ere in California, weddings occur year-round, but June through September is Wedding Season. That means the premarital agreement season is starting now.

For those of you with a premarital agreement practice, the first thing you should do to prep is read California’s Uniform Premarital Agreement Act (UPAA)(Family Code sections 1600-1617). Next, read the recent cases: Marriage of Melissa (2012) 212 CA4th 598; Marriage of Facter (2013) 212 CA4th 967; Marriage of Cadwell-Faso v. Faso (2011) 191 CA4th 945; and Marriage of Hill & Dittmer (2011) 202 CA4th 1046. This article highlights three areas to consider with your premarital agreement clients.

Know Who Your Client Is and What the Premarital Agreement Is Intended to Accomplish For Him or Her Clients generally fall into one of three buckets: (1) The young client whose family is requesting a premarital agreement to protect family assets/wealth. (2) The second bucket has three subsets: (a) The client who has been divorced before. (b) The client who has earned through his or her efforts a separate estate before the upcoming nuptials. (c) The client is engaged in business/income producing endeavors that have not all come to fruition yet. (3) The client in the latter life stages, nearing or in retirement, with adult children, whose expectancy interests want for protection. 6

MAY 2015

Sometimes a client can straddle two buckets. Whatever the case, within the first few minutes of meeting, determine where to place your client. This will allow you to direct the interview to understand what is driving the premarital agreement. In the case of buckets 1 and 3, make sure the client owns the premarital agreement. Sometimes these people want their parents, financial advisors or children to take care of it. This client often does not want to have sensitive discussions with their betrothed. Client management here can be delicate.

Explain the Premarital Agreement that California Will Provide in the Absence of One Customized by the Parties This is a crucial discussion to have with the client. At times, the issue arises with a client from the first bucket: He calls begrudgingly because his parents insist upon a premarital agreement, but he does not want one and says it is causing problems between himself and his fiancĂŠe. It is beneficial to explain to him that California law will provide him with a premarital agreement regardless. This is their chance to create what they want. This type of client will usually buy in to the process with this explanation. It is worthwhile to discuss with all clients how community property is created during marriage, how separate property is maintained during marriage, and the factors by which spousal support are determined in the event of dissolution. It is necessary also to determine whether a customized premarital agreement is appropriate.


This is important to keep in mind in the midst of premarital agreement negotiations as well. When a client, who wants to keep his or her separate property separate, is asked in return to include terms far more beneficial to the other spouse than California law would provide, be sure to revisit the purpose of the premarital agreement for your client, and recall what the law would provide in the absence of the agreement. If you do premarital agreements, you have no doubt come across the one-sided agreement that keeps and creates everything during the marriage as either side’s separate property. The tactic here appears to be: Come out strong, then give and concede on a few things so as to look reasonable and cooperative, and create a paper trail that the agreement was negotiated. To the client wanting to send over this kind of agreement, or one who receives this as a first draft, what kind of tone and precedent does this set for a marriage?

A better practice is to frame a client’s wants and needs in relation to California law, then customize. Create a list of items/issues that the client is willing to give his or her spouse in the premarital agreement that the law would not otherwise provide, in exchange for the protections he or she is seeking in the agreement. In this manner you are assisting your client vis-à-vis the dreaded “unconscionability” arguments as well.

The Premarital Agreement Process Is as Important as the Agreement Itself Divorce attorneys need to remember that they are dealing with people getting married. The client has often left the premarital agreement to one or two months before the wedding, and just wants to check it off his or her list. However, there are steps that cannot be skimped on. A practical rule

of thumb is to not take on premarital agreement representation less than a month before the wedding. Period. Even with one month’s time or more, ensure that your client will be available, responsive and will provide his or her financial information immediately. Disclosures are paramount. This means provide everything you can. If your client’s finances or business interests require it, enter into a confidentiality agreement confirming that only the other party, and his or her attorney can view the disclosures. Ideally, before the premarital agreement is drafted, provide copies of personal and corporate tax returns for the past two years to the other attorney. Some clients provide a two- to three-page narrative accompanying tax returns to explain the manner in which he or she earns and/or receives income. Whenever possible, provide a one- or two-page financial statement with estimated values of all

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Tune-up, cont. from page 7 assets and debts of your client; this will eventually form the exhibit to the premarital agreement listing his or her separate property. It is a good idea to obtain a signed receipt from the other party, acknowledging that he or she has received these disclosures, which includes a statement like, “I acknowledge that I have been given the opportunity to examine, upon my request, any supporting documentation relating to any asset, debt or obligation set forth herein.” Disclose, disclose, disclose. Take extra precautions, provide documentation and offer the opportunity to review more. Watch for any language drafted or requested that appears to suggest that disclosure was not “fair, reasonable and full.” This goes to the heart of whether the agreement was unconscionable when it was executed, per Family Code 1615. There are also a myriad of issues central to premarital agreements, e.g., spousal support waivers or limitations, attorney certifications, Cadwell–Faso v. Faso and the socalled seven-day rule, to name a few. Look not only to the rules governing premarital agreements, but the reasons behind the rules as well. If you

take the time to address the reasons behind the rules in your representation of premarital agreement clients, you may lose less sleep over “crystal-balling” what exactly “unconscionability” and “unconscionable at the time of enforcement” will mean. s Anne Freeman is a Senior Associate Attorney at Sideman & Bancroft, LLP, in San Francisco. Freeman practices family law exclusively, specializing in premarital agreements, postmarital agreements and dissolution actions involving complicated valuation and financial matters and complex community property and support issues. She is on the Board of Directors of the CCCBA Family Law Section. http://www.sideman.com/ lawyers/detail/biography/81/Anne-Freeman

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Does Your Client Have the

CAPACITY

to Get Divorced?

by Cindy Frazier Bilsborough

The Interplay Between Family Law and Probate

F

amily law practitioners have lately been seeing more clients come to their office with emotional, cognitive and mental health issues due to age, injury or disease. In many instances, this involves the disintegration of a second marriage later in life, or is spurred on by disability beyond the caretaking capacity of the other partner.

The question then arises how to address these issues, while upholding the attorney’s ethical duties of confidentiality,1 and avoiding interests adverse to the client,2 particularly where the client disputes his or her lack of capacity. There is a rebuttable presumption that all persons have the capacity to make decisions and be responsible for their acts or decisions.3 Moreover, courts have consistently held that there is a low evidentiary threshold in determining whether a party has the capacity to get divorced.4 Obviously, the same rules applied when they got married! Even though a client may qualify and have the “legal capacity” to file for divorce, that same client may not have the capacity to enter into any agreements as part of the dissolution action, such as for the division of property, custody of children and support. The client must be able to understand and communicate his or her

rights, duties and responsibilities as set forth in the contract, a significantly higher burden than simply the decision to divorce.5 The family law attorney faced with a client whose competency is in question can turn to the factors set forth in Probate Code §811 as a starting point. A client’s deficiency in any one of those listed areas requires that the attorney take secondary steps to determine the client’s capacity before proceeding. Oftentimes, the attorney can discuss these concerns directly with the client or the client’s family members or request a release to meet with the physician or mental health professional. The attorney could further suggest that the client submit to a mental health assessment as a condition for the attorney representing the client. In many instances, the client is aware of his or her decreasing capabilities and welcomes the intervention of a third party to assist. Depending

upon the extent of the incapacity, a consult with a conservatorship attorney may be appropriate. Conservatorships can be of the person, estate or both, and involve a costly and extensive process as set forth in Probate Code §1800 et seq. Ordinarily, such a process is warranted only in the event of significant and permanent incapacity. A conservator would be appointed and given authority to proceed in the family law case. Once the conservator is appointed, he or she would then apply to the court to be appointed as the guardian ad litem for the party. It is possible to have a person apply for appointment as the guardian ad litem in the family law action without being a conservator. Any person, including a relative, adult child, friend or professional fiduciary may apply to be the guardian ad litem. The guardian ad litem, once approved by the court, would step into the shoes of the divorcing party and

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Capacity to Get Divorced, cont. from page 9

be able to make necessary decisions instead of the client. The process involves the filing of a Request for Order with the court for their appointment, setting forth the grounds to establish incapacity.6

These situations present themselves with some frequency, so it is the attorney’s responsibility to be on guard about issues of incapacity. s

Where the client has the ability to consent to the appointment of a guardian ad litem, the family law attorney could represent the guardian ad litem in the application to the court.

Cindy Frazier Bilsborough is a Certified Family Law Specialist. She has practiced family law in Walnut Creek for 33 years and specializes in complex dissolution issues. She has lectured on family law issues for the county and state bar associations.

The ethical question arises when the client either objects to the appointment of a guardian ad litem or is completely incapable of consenting to the attorney’s representation of the guardian ad litem. The second instance could occur when, during the dissolution action, the party has an accident or serious illness which renders them incapacitated. In those instances, it may be unethical for the attorney to represent an interest potentially adverse to the client and apply to the court for appointment of a guardian ad litem. The Judicial Council has submitted a proposed Rule of Professional Responsibility Rule 1.14,7 which addresses the instance when an attorney has a reasonable belief of a client’s diminished capacity where there is the inability to obtain consent, allowing the attorney to notify a third party of the risk. In most instances, the opposing party is aware of the potential incapacity. The other party has the right to file a request for appointment of a guardian ad litem, as may the court, sua sponte. In the event of a third-party request for appointment, the attorney may need to withdraw as counsel, due to the conflict of interest, allowing alternate counsel to represent the guardian ad litem.

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2

Rule 3-310.

3

Probate Code §810.

4

Marriage of Greenway (2013) 217 Cal.App.4th 628; Marriage of Straczynski (2010) 189 Cal.App.4th 531.

5

Probate Code §812.

6

CCP §372 and 373(c).

7

Proposed Rule 1.14. Client with Diminished Capacity: (a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of mental impairment or some other reason, the lawyer shall, as far as reasonably possible, maintain a normal lawyer-client relationship with the client. (b) Except where the lawyer represents a minor, a client in a criminal matter, or a person who is the subject of a conservatorship proceeding, when the lawyer reasonably believes: (1) that the client has significantly diminished capacity such that the client is unable to make adequately considered decisions in connection with a representation and further that, as a result of such significantly diminished capacity; (2) the client is at risk of substantial physical, financial or other harm unless action is taken; and (3) the client cannot adequately act in his or her own interest, the lawyer may, but is not required to, notify an individual or organization that has the ability to take action to protect the client.

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Rule 3-100.

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oldest partnership in Contra Costa County (since 1955)

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Law Offices of Candice E. Stoddard 1350 Treat Blvd., Suite 420 Walnut Creek, CA 94597

925.942.5100   •   fax 925.933.3801 cstoddard@stoddardlaw.com Practicing law in the East Bay for over 25 years


? e s u o p S t n e c o Inn

Is Your Client an

Y

ou suspect your client’s spouse is not paying her or his taxes, filing erroneous returns, or worse—intentionally evading taxes. Is your client innocent? Maybe not, but perhaps she or he is an “innocent spouse.”

Liability for Income Taxes Generally, spouses are jointly and severally liable for income taxes due on a jointly filed income tax return. A common situation that occurs is one in which a married spouse,1 your client, is a stay-at-home parent. Your client may have been able to access money for household expenses; but she or he was earning little or no income.

by Christina Weed

Your client’s spouse had one or more separate bank accounts, and your client had no knowledge that income was underreported or that taxes were not being paid. Perhaps your client was in an abusive relationship. These are all factors to keep in mind when there are outstanding tax liabilities in connection with a joint income tax return.

Valid Joint Income Tax Return As a first point of clarification, there must be a valid joint income tax return in any determination that a taxpayer is jointly and severally liable for a tax liability. This is also a requirement to be eligible for a grant of relief pursuant to Internal Revenue Code (IRC) §6015.2 If there is not a valid joint return because a signature was forged, the return was signed under duress, or there was never a valid marriage, there is no joint and several liability and no standing to request relief under IRC §6015. If your client was in an abusive marriage, she or he may have signed a return under duress, rendering the return invalid. To show duress, your client must prove that “consent was coerced; that is, was the person complaining ‘induced by the duress or undue influence to give his consent, and would not have done so otherwise.’”3 If there are facts present to substantiate duress, a practitioner may be tempted to assert there is not a valid joint return, forego a claim for relief under IRC §6015, and hopefully save the client’s resources. But, consider if the Internal Revenue Service (IRS) agrees the return was signed under duress, the IRS could also determine your client is required to file a separate return because she or he had earnings during the time in question. In a community property state, such as Califor-

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Innocent Spouse, cont. from page 11

nia, your client will be required to report one-half of her or his gross income and one-half of the separate income of her or his spouse. This could result in a separate tax liability disproportionately greater than what would otherwise be attributable to your client’s separate earnings if she or he was not married and living in a community property state. Your client is not likely to be able to pay the resulting tax liability.

Innocent Spouse Relief Another option exists if your client qualifies for innocent spouse relief under IRC §§6015(b), (c) or (f).4 Relief under §6015(b) requires an understatement or deficiency attributable to the non-requesting spouse; the requesting spouse did not know, or did not have reason to know of the understatement when the return was signed; it is inequitable to hold the requesting spouse jointly and severally liable under the circumstances; and the request is made within two years of the first collection activity by the IRS after July 22, 1998.5

AND

The most important argument to make with respect to this provision is whether it would be inequitable to hold the requesting spouse liable.6 Ask your client how involved they were in household finances; whether there were any health or family issues during the relevant time period that would have prevented them from knowing whether their income taxes were understated on their return. If there are facts favorable to this claim for relief, and you are able to obtain affidavits from the client or witnesses who know the client well or know they were subject to abuse during their marriage, do so. IRC §6015(c) provides proportionate relief for taxpayers who are not married to, or are legally separated from, their spouse/former spouse during the past 12 months; their request is timely; and the portion of the deficiency is allocable to the non-requesting spouse.7 There are additional factors that prevent an otherwise qualifying spouse from obtaining relief.8 In order to determine the portion of a total deficiency allocated to the electing spouse, use the following formula:9 Items attributable to your client divided by all items used to compute the deficiency, multiplied by total deficiency equals the total deficiency allocated to your client.10

MEDIATION CENTER

“A unique and effective style a great mediator” Candice Stoddard     Ron Mullin

Willows Office Park   p   1355 Willow Way, Suite 110 Concord, California 94520 Telephone (925) 798-3413   p   Facsimile (925) 798-3118 Email ronald@mullinlaw.com

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MAY 2015

IRC §6015(f) provides for equitable relief. There are threshold requirements, including that relief under the other subsections is not available. In addition, assets must not have been transferred between the spouses as part of a fraudulent scheme; the requesting spouse must not have received disqualified assets; the requesting spouse must not have filed, or failed to file, with fraudulent intent; and the liability must be attributable to an item of the non-requesting spouse. If these threshold requirements are met, but a streamlined determination11 cannot be made to grant relief, there is a list of additional factors12 the IRS will also consider in its decision.

Divorce Decree One of the factors that may be considered by the IRS in connection with a request for relief pursuant to IRC §6015 is whether the non-requesting spouse had a legal obligation to pay. This does not require a


divorce decree, but if such a decree exists, and it provides that the non-requesting spouse is responsible for all or most of the deficiency, you should provide this to the IRS. For federal purposes, a divorce decree that indicates one spouse has responsibility for taxes jointly owed, while it may be considered by the IRS,13 is not controlling. California, which has a somewhat similar innocent joint filer program, is bound by a divorce decree.14 California permits divorcing spouses to contractually allocate an unpaid joint and several liability in a marital dissolution. If all statutory criteria are met, the couple’s agreement is binding on the Franchise Tax Board.15

1

Same-sex married couples qualify for relief if legally married in the jurisdiction where the marriage was performed and meet all other requirements for relief pursuant to IRC §6015. Rev. Rul. 2013-17.

2

IRC §6013(a); See Raymond v. Commissioner, 119 T.C. 191 (2002).

3

Stanley v. Commissioner, 45 T.C. 555, 562 (1966); See also Furnish v. Commissioner, 262 F.2d 727 (9th Cir. 1958).

4

A request for innocent spouse relief is made on a properly completed Form 8857 and submitted to the IRS.

5

See IRM 25.15.3.6; Tax Court Rule 142(a); Alt v. Commissioner, 119 T.C. 206, 311 (2002), aff’d, 101 Fed. Appx. 34 (6th Cir. 2004).

6 IRC §6015(b)(1)(D), See Jonson v. Commissioner, 118 T.C. 106 (T.C. 2002). 7

Reg. §1.6015-3.

8

Other Matters to Consider Once the request for innocent spouse relief is submitted, the non-requesting spouse will be contacted by the IRS. All of the information provided to the IRS will be shared with the non-requesting spouse. You may, however, ask the IRS to omit information regarding your client’s location.16 The non-requesting spouse will have an opportunity to object to relief for your client, and will be given an opportunity to participate. The non-requesting spouse may also intervene if the matter goes to Tax Court. The non-requesting spouse may not, however, appeal a determination of the Tax Court to grant your client relief.17 In addition, note that there are some relief provisions from community property income splitting requirements for a requesting spouse in a community property state.18 IRC §6015 and its associated procedures are complex and this article only touches on some the issues that may arise. The relief provisions under IRC §6015 can serve as a powerful tool for clients who qualify. It is important for practitioners to be able to identify when a client’s facts and circumstances may give rise to a request for innocent spouse relief. s Christina Weed, JD, LL.M., is an attorney at the Law Offices of Chastity A. Schults in Walnut Creek, a tax law and estate planning firm. Christina’s practice has an emphasis in Tax Law, Business Succession Planning and litigation. Christina is the Chair of the Tax Section of the Contra Costa County Bar Association and the Cochair of the Contra Costa County Delegation of the California Conference of Bar Associations. You can reach her at christina@schultslaw.com or (925) 274-4608.

These limits include: The IRS proves the joint filers transferred assets between themselves as part of a fraudulent scheme; the election relates to an underpayment rather than a deficiency or understatement; the requesting spouse had actual knowledge at the time she or he signed the return of any item giving rise to that portion of the deficiency; or the electing spouse received disqualified assets. IRC §6015(c)(4).

9

Please note that the election is available to either or both spouses with respect to different items on the same tax return. A spouse who does not make an election remains jointly and severally liable for the entire tax.

10

IRC §6015(d).

11

See IRC §§66(c), 6015(f).

12

See Rev. Proc. 2013-34. Please note that effective July 25, 2011, the IRS announced a policy change under which a spouse requesting equitable relief under IRC §6015(f) no longer must request such relief within the two-year deadline under Treas. Reg. §1.6015-5(b) (1). See Notice 2011-70, 2011-32 I.R.B. This makes equitable relief under IRC §6015 a possibility for many who previously were not able to obtain relief under the old provisions. 13

See Rev. Proc. 2003-61.

14

The Franchise Tax Board has an innocent joint filer relief program. Relief is requested on Form FTB 705. 15

California Revenue and Taxation Code §19006.

16

This may be especially relevant in cases where your client was subject to abuse during marriage. 17 Baranowicz v. Commissioner, 432 F.3d 972 (9th Cir. 2005); Estate of Ravetti v. United States, 37 F.3d 1393, 1394 (9th Cir. 1994). 18 This is outside the scope of this article, but see IRC §66 grants spouses relief from community property income splitting requirements in some circumstances, and the IRS may even require the non-electing spouse to report 100 percent of the community property income. This could result in a refund to your client in some cases. IRM 25.18.3.2; See S. Rep. No. 96-1036 at 8 (1980); IRM 25.18.3.13; IRC §66(b); Please note only the IRS may invoke IRC §66(b); the taxpayer cannot invoke the application of this subsection. Hardy v. Commissioner, 181 F.3d 1002 (9th Cir. 1999); Drummer v. Commissioner, T.C. Memo. 1994-214, aff’d without published opinion, 68 F.3d 472 (5th Cir. 1995).

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

13


Frozen Embryos: When Constitutional Law Trumps Family Law (Frozen Series, Part 2) by Suzanne Boucher

I

n the “Women in Law” edition (February 2015) of the Contra Costa Lawyer, our “Frozen Series Part 1” article discussed the recent movement among Silicon Valley companies to bolster their arsenal of perks for female workers, to include everything from giving employees $4,000 in “baby cash” to use however they choose (Facebook), to paying for fertility treatments up to $20,000 (Apple). As a result of these perks, more couples may opt to postpone becoming parents to focus on their careers. They can freeze their eggs or embryos1 in hopes of increasing their odds that they can still become parents in the future by fertilizing the eggs or implanting the embryos. However, these decisions can have long-term effects, not only on the person’s career, but also their marriage and ultimately their ability to become a parent if they divorce. Agreements that are made when the parties are happily married can become a problem when the relationship breaks down. When a couple decides to divorce, they will have to address the question of what happens to the frozen eggs or embryos. A woman who has frozen her eggs may ask the husband to pay for the cost associated with storing the eggs if they no longer have the employer perks. Another situation that may arise with respect to frozen embryos is that one spouse may decide that he or she no longer wants to be a parent

14

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and objects to the other spouse implanting the embryo after divorce. It may surprise many people to find out that this is not a “custody” issue or even a “property” issue. Instead, the disposition of the embryo focuses on the individual’s constitutional right to privacy and mirrors the women’s right to choose, often discussed in abortion cases.2 Although there are no published cases in California, other states have tackled this issue. This article will discuss how to address the issues that arise in situations relating to

husband did not want to have another child and wanted the embryos destroyed. The Tennessee Supreme Court held that frozen embryos are neither property nor a child, but an “interim category that entitled them to special respect because of their potential for human life.” The court held that the first resource for determining the fate of the embryos was to focus on a written agreement between the parties. The written agreement could be either between the spouses or between the spouses and the fertility clinic, which would include a provision for disposition of the frozen embryos in the event of a death or divorce. As the parties in Davis did not have a written agreement, the court was forced to make a choice between the desire to donate the embryos and the desire not to have the embryo develop into a child.

frozen embryos so that we, as family law practitioners, will be in a better position to advise our clients on this difficult and emotionally charged issue. Davis v. Davis (1992) 842 S.W.2d 588, 597, was the first decision to address the status of frozen embryos in a marital dissolution action. The parties in Davis froze the embryos during marriage but divorced before the embryos were implanted. The wife wanted to donate the embryos to a childless couple, but the

The answer was based on the constitutional right to privacy. That right includes protections against undue state influence in the right to have children.3 The court in Davis held that “the right of procreational autonomy is composed of two rights of equal significance— the right to procreate and the right to avoid procreation.”4 The court ruled in favor of Mr. Davis and his right not to have children. If Mrs. Davis were allowed to donate the embryos, Mr. Davis would face a lifetime of either wondering about his parental status or


knowing about his parental status, but having no control over it. One wonders whether the result may have been different if Mrs. Davis wanted to keep the embryo as opposed to donating it to another couple. The court in New York was faced with that dilemma in Kass v. Kass (1998) 91 N.Y. 2d 554, 673 N.Y.S.2d 350, which involved a wife who wanted the embryos implanted in her own uterus and the husband who did not want to become a parent. The parties in Kass had a written agreement including a consent form with the clinic, which provided that “our frozen pre-zygotes will not be released from storage for any purpose without the consent of both of us … in the event of a divorce the legal ownership of any stored prezygotes must be determined in a property settlement and will be released as directed by order of a court of competent jurisdiction.”5

In this case, there was a successful implantation in 1992 that resulted in twin daughters. At issue was the disposition of the four remaining embryos four years later when the parties divorced. The wife wanted to enforce the consent form that released the embryos to the wife if the parties separated. The husband objected to the enforcement of the agreement, citing a change of circumstances since the time the form was signed. The court found that many terms in the consent form were vague and held that it would not enforce an agreement that would compel one donor to become a parent against his or her will, and denied the request for implantation. It is interesting to note that all of these cases reached the same outcome, that the constitutional right to privacy grants either parent an absolute right to prevent implantation of a frozen embryo.

In fact, the right not to become a parent seems to trump the other parent’s right to have a child. This right will be upheld even if there is an agreement which on its face may seem to favor a ruling in support of implantation. s Suzanne N. Boucher, Esq., is a certified family specialist. Her practice, located in Walnut Creek, focuses on complex family law matters in Contra Costa and Alameda counties. 1

Frozen embryos are those embryos that are not transferred during in vitro fertilization cycles and are subsequently cryopreserved. 2

Webster v. Reproductive Health Services (1989) 492 U.S. 490; Roe v. Wade (1973) 410 U.S. 113. 3

See Skinner v. Oklahoma 316 U.S. 535 (1942); Eisenstat v. Baird, 405 U.S. 438 (1992).

4

842 S.W.2d at 600.

5

673 N.Y S.2d at 352.

Having agreed to divorce, the parties later signed another agreement that stated “the disposition of the pre-zygotes shall be disposed of in the manner outlined in our consent form and neither party will lay claim to custody of the pre-zygotes.” The court agreed with the court in Davis and held that the agreement between the parties would control. The court then interpreted the agreement to state that since joint consent was required for release of the embryos, it was the parties’ intent that the embryos would not be released absent joint consent. The court went on to find that, conversely, it was not the parties’ intent to permit the court to allow implantation against the wishes of either party, and the request for implantation by Mrs. Kass was denied. The passage of time between when the agreement/consent form is signed and the divorce is a factor that was discussed in A.Z. v. B.Z. (2000) 431 Mass. 150 725 N.E.2d 1051.

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

15


Divorce and the Closely-held California Business Owner by Erin D. Hollis

• Blatantly neglecting operations. • Selling off or destroying business-owned assets. • Dramatically depleting profits or cash on hand. • Ceasing operations.

F

or married business owners in California, the business may be the most valuable and illiquid asset in the marital estate. Therefore, it is reasonable to assume that if owners divorce, the business will be an asset that will spark substantial controversy between the parties. Furthermore, without preparation and precaution, the consequences of divorce can have a devastating financial impact on a business. If either your client or your client’s business partners are anticipating divorce, you should consider these three questions: (1) How will the divorce affect the business? (2) What is to be valued? (3) Who should perform the business valuation?

How Will the Divorce Affect the Business? Aside from the obvious emotional impact a divorce may have on your client, the financial implications on your client’s business can be overwhelming. As mentioned, the business may be the largest asset in the marital estate as well as the most illiquid. However, funding the marital settlement can place a financial burden on your business if you do not have sufficient personal liquidity. Supporting the settlement without interrupting business operations typically requires sufficient cash on hand, readily available liquid assets, or another type of funding vehicle such as a business loan. There are some common mistakes an owner who is facing divorce may make in this regard: • Running personal or non-business-related expenses through the business. 16

MAY 2015

These tactics may have zero to little effect on the business’s value, and it is recommended that owners avoid extraordinary actions or business decisions outside the company’s day-to-day operations. There are a few reasons for that. First, the court and opposing counsel will be savvy enough to recognize self-inflicted sabotage. Second, the court will typically specify a valuation date, which could be the date of separation or another specified date. Last and most important, anomalies and extraordinary events may be “normalized” to reflect the normal course of business. Essentially, notwithstanding the moves made by the owner, an experienced appraiser can bring sanity to divorce business valuation situations.

What Is to Be Valued? Level of Ownership The amount (or percentage) of ownership to be valued will guide an appraiser in the valuation analysis and application of the appropriate methodology. Typically, a 51 percent or more business ownership represents a controlling interest and is worth more than a minority interest, and a valuation discount for minority ownership may apply. However, if the ownership of the company is 50–50 between co-owner spouses, a non-controlling premise may not apply. Entity Structure and Taxation The entity structure of the company is also relevant. A hotly contested topic in business valuation is the tax affecting advantages and disadvantages of C corporations versus those of pass-through entities, such as S corporations and limited liability companies, or LLCs.


Although there are different schools of thought on the issue, the taxation of business earnings is controversial because it may make a material difference in the value of your client’s ownership interest. State Case Law Your appraiser should be familiar with the relevant state case law. Each state has its own standard of value to be applied in marital dissolution cases. California courts lean toward “fair market value,” or the price, expressed in terms of cash equivalents, at which property would change hands between hypothetical willing and able buyer and seller, acting at arm’s length in an open and unrestricted market, when neither is under compulsion to buy or sell and when both have reasonable knowledge of the relevant facts.1 Personal goodwill is also an area of concern, as California law typically includes it in the marital estate. This implies a deviation from the standard of fair market value because personal goodwill is attributable to an individual (relationships, skills, reputation, etc.) and is not transferable. Enterprise goodwill is the goodwill of the business and is a transferable asset.

Who Should Perform the Business Valuation? If the business is to be included in the dissolution, it is recommended you have a business valuation performed by an appraiser who is: • Independent: An attorney is an advocate of the client, whereas an appraiser is only an advocate of the business’ value. Therefore, having your client’s CPA, or other individual they already have an existing personal or professional relationship with, perform the business valuation is ill advised. Opposing legal counsel can easily dispute the credibility and objectivity of the business valuation report. Any appraiser with such an existing relationship and who knowingly accepts such an assignment is bordering on a violation of professional ethics. • Certified: He or she should be certified by a recognized professional business valuation organization. Many courts have disallowed valuations performed by uncertified individuals. • Experienced: It’s not enough to hire an independent, certified appraiser. You also must hire one who has substantial valuation experience in the pertinent industry.

Experience is critical as your appraiser may have to defend her or his opinion on the witness stand.

Be Prepared Although it may seem pessimistic to suggest planning for divorce, the consequences of not doing so can have a devastating financial impact on your client’s business. Regular business valuations allow you to proactively care for the viability of your client’s business investment and therefore anticipate an untimely event requiring immediate liquidity. A business owner who is contemplating marital dissolution should always seek, with their legal counsel, advice to determine the scope of the valuation engagement and the necessary course of action. s Erin Durand Hollis, ASA, is on the American Society of Appraisers Business Valuation Committee. The American Society of Appraisers is an international organization devoted to the appraisal profession. ASA is the oldest and only major appraisal organization designating members in all appraisal specialties. Hollis is with Marshall & Stevens, Incorporated, in Chicago and can be reached at ehollis@marshall-stevens.com. 1 As defined by the International Glossary of Business Valuation Terms, as adopted by American Society of Appraisers.

ConServAtorShiPS ProBAteS CriMinAl DefenSe David B. Pastor

CCCBA MeMBer SinCe 1977

• Free Consultation •

Law Offices of

DAviD B. PAStor

www.davidbpastor.com 1280 Boulevard Way, Suite 212 • Walnut Creek, CA 94595 925-932-3346 • david@davidbpastor.com

MERGERS, ACQUISITIONS, SALES AND PLANNING FOR BUSINESS OWNERS

BUSINESS LAW

HUBERT LENCZOWSKI, J.D., M.A.* Hubert@Lenczowskilaw.com

* Adjunct Professor Taxation Golden Gate University Law School, LL.M. Taxation Program

1615 Bonanza Street, Suite 212 Walnut Creek, CA 94596 T (925) 280 7788 www.lenczowskilaw.com

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

17


Commercial and Banking Mediation A reasonably priced alternative to big ADR groups, Dean Christopherson brings a thirty year track record of resolving contractual, business and banking disputes to your mediation table. Special rates may be

available for parties with difficulty funding a traditional mediation. Dean Christopherson Dawe & Christopherson LLp Telephone - (925) 256-6677 Email - mediate@calaw.com

Call or email to make arrangements for your mediation at our Walnut Creek office.

Tax & Estate Planning 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 | Youngman.com

Walter C. Youngman, Jr., Attorney-CPA Jean Claude B. Mallein, Jr., MBA, LL.M-Taxation State Bar Certified Specialist-Estate Planning, Trust & Probate

Tara H. Shine, Attorney

18

MAY 2015

Dani Altes, Paralegal Lisa Salvetti, Legal Secretary Maudie Sullivan, Certified Tax Preparer


LAW PRACTICE MANAGEMENT SERIES 2015 3rd Wednesday of Each Month | 4:30 pm - 6 pm JFK University | 100 Ellinwood Way, Room S209 | Pleasant Hill DATE

TITLE

April 15

Nuts and Bolts of Starting a Law Firm

Contact Liz Galliett for a recorded version.

May 20 4:30-6 pm

DESCRIPTION Before billing the first hour, every law firm needs an engagement letter, an insurance policy and a billing system. Learn from those with experience starting and maintaining law practices how to develop the tools that will situate you to go into business on your own or as part of a partnership or law corporation.

MCLE CREDIT

This program will address in general terms the ethical and practical considerations surrounding the departure of partners and associates from a law firm.

1 hr. Ethics / 0.5 hrs. General MCLE credit

Refreshments and networking social sponsored by Laptop Lounge, Home of Reliable Receptionist and Mercer Health & Ben- Speakers: Aaron Feldman, Founder, Feldman Law Group Denae Budde, Partner, Alborg Martin & Budde LLP efits Insurance Services, LLC

Look Before You Leap in Changing Law Firms

Speakers: Richard Frankel, Esq., Frankel Goldware Ferber LLP Roger J. Brothers, Esq., Buchman Provine Brothers Smith LLP June 17 4:30-6 pm

Everyone’s Doing It: This program is split into two parts: In Part I, Marina Sarmiento Feehan will discuss Implicit Bias; in Part II, Megan Roth will The Explicit Effect talk about the importance of CRM (Client Relationship of Implicit Bias Management).

1.5 hrs. General MCLE credit

1 hr. Elimination of Bias MCLE credit

Speakers: Marina Sarmiento Feehan, Esq., Founder, Positive Counsel Megan Roth, Marketing Manager, Insightly July 15 4:30-6 pm Room S304

Sept. 16 4:30-6 pm

Oct. 21 4:30-6 pm

Ethics In Co-counsel and Contract Attorney Arrangements

Learn about important ethical issues to be aware of in cocounsel and contract attorney arrangements.

Cybersecurity: What You Need to Know

This program will discuss cybersecurity and what you should know to protect yourself and your firm.

This is Not Your Parents’ Law Firm

1.5 hrs. A panel discussion on various models of managing a law firm, including potential alternative models and how they work in prac- General MCLE credit tice in comparison to traditional models of managing a law firm.

Speakers: Jerome Fishkin, Professional Liability Attorney, Fishkin & Slatter Katy Young, Partner, Ad Astra Law Group Joan Presky, Presky Legal, PC

Speaker: Mike Murray, Veritext

1.5 hrs. Ethics MCLE credit

1.5 hrs. General MCLE credit

Speakers: Marie Barnes, Associate, Ad Astra Law Group Harry Stern, Partner - Rains Lucia Stern, PC Renee Livingston, Livingston Law Firm

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.

Please contact Liz Galliett: lgalliett@cccba.org | (925) 370-2540 CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

19


April 2, 2015

Welcome Celebration for

Theresa Hurley Matt Guichard, Mike Brown, Philip Andersen and Ben Borson

Lubna Jahangiri, Nancy Powers and Ken Strongman

For more photos, visit our Facebook page at facebook.com/CCCBA!

Beth Mora, Suzette Torres and Gina Boer Audrey Gee, Theresa Hurley and Nick Casper

20

MAY 2015


SA JOKUITOR P I S RE

XX

THE JOKE SPEAKS FOR ITSELF

KICKOFF FOR FOOD FROM THE BAR 2015 Benefitting the Food Bank of Contra Costa and Solano

When: Thursday, May 7, 2015 Doors open at 6 pm Show starts at 8 pm Where: Back Forty BBQ 100 Coggins Drive Pleasant Hill Tickets: $60 BBQ Buffet: 6:30 - 7:30 pm

Featuring:

Auggie Smith

nationally renowned comedian appeared on Live at Gotham

Robin Cee

voted best comedian by the East Bay Express

Vegetarian option available upon request, contact Renee by April 30 at (925) 771-1310.

presented by

Bring a can of protein (tuna, beef stew, chicken, etc.) to enter a drawing for valuable prizes!

benefitting

GET YOUR TICKETS TODAY! For tickets, scan the QR code or contact Theresa Hurley at (925) 370-2548 or thurley@cccba.org.

*For sponsorship opportunities, contact Theresa Hurley at (925) 370-2548 or thurley@cccba.org.

Thanks to our Generous Sponsors!*

BENEFACTOR Wells Fargo PATRONS

Archer Norris McNamara, Ney, Beatty, Slattery, Borges & Ambacher Newmeyer & Dillion, LLP The Recorder Steele George Schofield & Ramos, LLP U.S. Legal Support CONTRIBUTORS

Brown, Church & Gee, LLP Buchman Provine Brothers Smith, LLP Certified Reporting Services Esquire Frankel Goldware Ferber, LLP Gagen, McCoy, McMahon, Koss, Markowitz & Raines Miller Starr Regalia Quivx Scott Valley Bank Vasquez Benisek & Lindgren, LLP

Bring your checkbook for a chance to win one of our valuable raffle items! 2015_03-24

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

21


Hopkins’ Choice by Justice James Marchiano (Ret.)

In prior “Stories from the Bray Building,” Judge Carlton considered incarceration, legal ethics, criminal cases and contentious civil trials. Now, he presides over an unusual family law matter.

J

udge Raymond Carlton would not soon forget that Friday morning when a case like no other arrived in Department 47 in Martinez. While waiting for his jury to reach a verdict, Judge Carlton savored his espresso from Legal Grounds on Main Street and emailed the presiding judge, offering to take a short case. Judge Carlton was willing to help out because he knew the family law judges in the Spinetta Family Law Building were always backed up with a Sisyphean workload. But he watched with dismay as his clerk maneuvered a shopping cart with files piled almost as high as she was into his chambers. Buried in the stack were pleadings for a severed issue, half-day trial, assigned to him as a reward for his altruism. He would soon meet Hopkins. Adjusting his bifocals, Judge Carlton looked at the well worn, earmarked West’s Annotated Codes on his book shelves and wondered which of the 20,043 Family Code sections this case would involve. The Legislature enacted 20 Divisions with up to 20,043 sections that govern the relationships among husbands and wives, children, domestic partnerships, same sex marriages, adoptions, and the effects of the rupture of those relationships. Family Law is sui generis within the legal system, with its own rules, case law and delegation of broad judicial discretion.

22

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Each court file was numbered from I to XXI under Marriage of Barbara R. Thomas, Petitioner vs. William G. Thomas, Respondent. The multitudinous pleadings revealed a 24-year marriage ending due to irreconcilable differences, the principal difference being Bill Thomas’ relationship with a younger lady friend. The Thomases owned a 3,600 square-foot home in Alamo. Bill Thomas ran a successful insurance brokerage business in Danville. Barbara Thomas occasionally worked outside the home and spent much of her time doing volunteer work. The family law judge granted the dissolution, and after refereeing many rounds of name-calling disagreements, resolved most of the support and property issues and reserved a large attorney’s fees issue. Uncivil lawyers and uncivil parties engender uncivil fees. Unable to control the mounting fees, Barbara belatedly turned off the spigot and discharged her attorney. Now her focus turned to Hopkins, the prized object of her affection. The severed issue assigned to Judge Carlton involved the custody of “Hopkins.” But who was Hopkins? The Thomases were childless. Judge Carlton ascertained from the files that Hopkins was not a dependent, but a pet dog, an intelligent, personable, male Welsh Corgi, with a resplendent light brown, black and white fur coat, named

after the distinguished Welsh actor Anthony Hopkins. A Welsh Corgi has a life span of around 12 years, and Hopkins had spent almost every minute of his nine years with the doting Thomases, going everywhere with them. Unwilling to compromise, the parties drew a line in the sand, each seeking sole, exclusive custody of Hopkins during his remaining years. Hopkins was a dog of a different color, who could have been sent to King Solomon’s court instead of Department 47. Judge Carlton listened intently as pro per Barbara Thomas and Bill Thomas testified about their devotion to Hopkins and why it was in Hopkins’ best interest that sole custody be awarded to him or her. Only Barbara, who spent each day with Hopkins while Bill was at work or his girlfriend’s townhome, completely understood Hopkins’ needs. On the other hand, Bill selected Hopkins from a purebred litter, trained him, took him for his vet visits, and brought out Hopkins’ best traits as he led him on walks on weekends. Inflexibly deadlocked, neither wanted to share custody, and each maintained Hopkins would be disconsolate and traumatized if left in the custody of the other. An aura of intransigence mixed with antagonism filled the court room as Hop-


On an overcast Saturday morning with supporting friends on the sidelines, everything was in place. Barbara called out to Hopkins, waving her hands frantically. Bill bent over, rubbed his palms with his fingers and called to Hopkins, accompanied by an echoing, muffled clicking sound. Hopkins darted immediately to Bill. With the eagle eye of a sports referee, Judge Carlton saw that Bill held a little, hard biscuit in the palm of his hand. It was the same type of biscuit that Bill gave to Hopkins as a reward for good behavior during their walks, which he always offered with an echo of clicking sounds. Hopkins’ choice became a Hobson’s choice.

kins, with his large ears perked up, listened as he sat next to Judge Carlton’s bailiff. Hopkins’ long standing veterinarian, subpoenaed by the family law court, offered reluctant expert testimony that was at best equivocal without offering any insights to the court. He maintained a cautious distance behind shadowy testimony and was not about to take sides. Often in custody disputes involving mature children, the child’s preference is given great weight by the judge under Family Code section 3042. But Hopkins only spoke a Welsh dialect that no one understood and wagged his stubby tail, not his tongue. Department 47 was subjected to a final round of remonstrations, and then both sides rested. Judge Carlton recessed into chambers to ponder over the dilemma, with the 20,043 sections of the Family Code offering little inspiration on how to decide a case in which the evidence seemed evenly divided. Finally, after a burst of inspiration, he returned to the anxious court room to announce his decision. The judge paused to look over at Hopkins, and then ordered the parties to meet at the Monte Vista High School footYoungman & ball field on Saturday at 9:30 a.m. Judge Carlton would attend like a referee, poised at the 50-yard line where he would restrain Hopkins. Each of the disputants was to stand alone at the opposite 25-yard lines, and on the judge’s signal, call simultaneously for Hopkins. Whomever the corgi ran to would be awarded custody. Hopkins himself would decide, since a Welsh Corgi legally cannot be cut in half.

Hopkins left with Bill and his smiling girlfriend. But on the following Tuesday, in a carefully written decision, Judge Carlton reconsidered, and exercising his broad judicial discretion, explained that under all of the circumstances, it was in Hopkins’ best interest to reside with each party for two alternating months, then to be returned to the other. Like a snapshot downloaded from an SD memory card, the judge could not forget the image of a reluctant Hopkins looking back wistfully at a weeping Barbara, as Bill guided him to his BMW. Judge Carlton understood the unspoken words from the empathetic Hopkins. Every dog has its day. No man can serve two masters, but this perceptive Welsh Corgi could serve a master and a mistress and be spoiled by each. After the files were returned to the Family Law Department, Judge Carlton reflected and hoped he showed a bit of the wisdom King Solomon had. Judge Raymond Carlton had learned the word “wisdom” in Welsh is “callineb”; also the Welsh word for “common sense.” s

Ericsson

1981 North Broadway • Suite 300 Walnut Creek, CA 94596

Tax & EstatE Planning attornEys Youngman.com

(925) 930-6000

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

23


Children, Families and the Law (CFL) Program at JFKU College of Law by Commissioner Josanna Berkow (Ret.)

A Unique Law School Experience and Community Partnership

J

ohn F. Kennedy University College of Law launched the Children, Families and the Law (CFL) program in 2012. Our intent was to create a specialized curriculum for students interested in exploring the wide and wild world of family law. We did not want to adopt the traditional narrow approach of classroom lectures. Rather, we wanted to address the expanding law affecting children and families in a way that provided students both the necessary doctrinal law as well as the specialized practice skills so critical to a modern family practice.

CFL’s Double Punch: Substantive Law Plus Specialized Practice Skills The substantive law component of CFL focuses primarily on the basics of family practice: Establishing parentage, custody and visitation, family violence and child and spousal support. A separate Community Property class covers the principles of the equitable division of the marital estate. CFL supplements traditional family law doctrine with overviews of the most common “crossover issues” collateral to family practice such as juvenile dependency, adoption, guardianship, immigration and elder abuse. Crossover issues are often taught by attorneys with a particular expertise who guest lecture, combining substantive law and practice tips. The CFL practice skills component includes learning specialized writing skills, alternative dispute resolution (ADR) techniques, the role of experts in CFL litigation and work in the University’s Double Pro Per Settlement (DPPS) clinic. Students are also required to do a 60-hour externship with an experienced, practicing CFL attorney.

24

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The CFL Practice Skills Quartet Writing Specialized writing skills are developed throughout the course in conjunction with a unit of substantive law (Marriage, Parentage, Family Violence, Custody and Family Support). Students begin with the preparation of Judicial Council forms. As a final, the students prepare and argue a Request for Order (RFO) with Points & Authorities on a complex issue such as relocation or implied income. Outside Experts Students learn about the role of outside experts in family practice with a primary focus on mental health and financial experts. Students learn when an expert is needed, the different roles of court-appointed joint experts and those hired by one of the parties, how to direct and analyze expert reports, and how to prepare expert testimony in mediation and in court. We are introducing a new CFL seminar this summer for both law and graduate psychology students titled “Introduction to Psychology in Family Law” that I’ll be co-teaching with Phil Stahl, Ph.D. Double Pro Per Settlement (DPPS) Clinic Students must also participate in the DPPS clinic, which is held the second Tuesday evening of the month from February to November. The clinic began in 2013 out of a partnership with the Contra Costa Superior Court and Contra Costa County Bar Association. When a case is set on the DPPS calendar, the court directs both parties to attend the clinic prior to their first settlement conference, which is conducted by volunteer attorneys in the general family law departments.


The clinic provides students an opportunity to apply ADR class exercises in a real-world venue. Volunteer attorneys begin the clinic with a brief user-friendly summary of dissolution law and procedures, and then along with the students, they help the parties identify and update the forms and evidence they will need for court. They also prepare a checklist of agreed and disputed issues for the attorney conducting the in-court conference and help mediate agreements where possible. The DPPS clinic is held on the University’s Pleasant Hill campus, and is conducted in the evening so the litigants do not have to miss work. From July 2013 through 2014, the DPPS has brought over 66 percent of the 59 cases to final judgment in an average of five months from clinic to filing. The DPPS clinic continues to evolve and improve. We need more volunteers to give us an evening or two each year. Contact details are provided below.

Since 1949 Rated AV by Martindale-Hubbell

Bray & Greenwood LLP Oliver W. Bray* Oliver A. Greenwood Over 29 years in practice

736 Ferry Street Martinez, CA 94553 925-228-2550 925-370-8558 (fax) braygreenwood.com

obray@braygreenwood.com ogreenwood@braygreenwood.com

CFL Externships The final practice skill component of the program is a 60-hour externship supervised by an experienced CFL attorney. We have been fortunate to work with private practitioners and organizations dedicated to providing students a meaningful experience working on CFL cases at all stages of litigation including supervised court appearances. To date, students have completed CFL externships in the Family Law Division of the Contra Costa Superior Court, Bay Area Legal Aid, with court-appointed attorneys representing children and parents in Juvenile Dependency courts in both Alameda and Contra Costa counties, the Department of Child Support Services (DCSS), and with several experienced family law practitioners.

CFL Attorney Volunteers There is no mandatory pro bono service requirement for practicing attorneys, although the State Bar of California may soon follow New York in mandating 50 hours of pro bono service as a requirement of admission. Litigants are self-represented in over two-thirds of family cases statewide. We should all do the best we can by volunteering to level the playing field for family litigants facing significant losses of custody and income and the often-negative outcomes experienced by their children.

• Probate, Trust & Estate litigation and administration • Elder Abuse litigation • Conservatorship and Guardianship establishment and litigation • Fiduciary Representation and Court Accountings • Estate Planning, Wills & Trusts Free case evaluations for referring attorneys *Certified Specialist in Estate Planning, Trust and Probate Law – State Bar of California Board of Legal Specialization *Selected to Northern California Super Lawyers each year since 2006

Until there is funding for self-represented family litigants, you can help by volunteering with the CFL program in one of three ways. First, you can volunteer to spend one or more evenings a year at the DPPS clinic. Second, you could supervise a CFL student externship next spring. Finally, you can share your expertise as a guest lecturer. Please contact Sharon Raab at lawlady118@gmail.com to volunteer for the DPPS clinic or Sharon Braz at sbraz62@gmail.com to volunteer to supervise a CFL externship or teach a guest lecture. Thank you for supporting the CFL program. s Commissioner Josanna Berkow retired in 2013 from the Contra Costa Superior Court after 20 years on the family law bench. She is an adjunct professor at the John F. Kennedy University College of Law in Pleasant Hill, where she teaches and serves as faculty advisor for the Children, Families and the Law program. Commissioner Berkow also works as a temporary judge to review, sign and file uncontested Judgments of Dissolution. Contact Commissioner Berkow c/o Karen Olson, Legal Document Assistance at (925) 640-2069 or legalprokolson@gmail.com or at josanna@badtke.com.

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Family Law and Your LRIS by Barbara Arsedo

A

s most of you know, the CCCBA Lawyer Referral & Information Service assists the public in referrals to qualified attorneys to help meet their legal needs.

What you may not know, however, are the many ways your LRIS can help both clients and attorneys in the family law area of practice. The LRIS takes approximately 75-100 calls each month from clients looking for some sort of assistance with a family law issue, from adoptions and dissolutions to same-sex relationships. Each caller is carefully screened by LRIS trained intake staff for their particular needs. The client is charged a $30 administrative fee and our staff contacts an LRIS attorney to schedule an appointment for a 30-minute consultation. The client and the attorney then meet and discuss the client’s particular issues. The LRIS also has several other options available for clients, depending on their individual situation.

Moderate Means Program The Moderate Means program has been established by the CCCBA in order to provide clients unable to afford the regular fees of a private practicing attorney with a referral to a family law attorney who has agreed to take on certain cases on a reduced-fee basis. These clients go through a detailed application process and are qualified based on their income and the number of people in their household, and must provide proof of this income. The Moderate Means program has set up eligibility guidelines for this process. Family law

attorneys can indicate that they wish to take on Moderate Means referrals as well as regular referrals when they join the LRIS. The difference between these cases and regular LRIS referrals is that the attorney pays no percentage fees to the LRIS on Moderate Means cases, as they do on regular referrals (15 percent of attorney’s fees collected on a case). This is a win-win situation for clients and attorneys alike. The clients can obtain qualified legal assistance that they can afford, and the attorneys (especially newer attorneys starting out in family law) are able to help people they might not typically be able to reach. Normal attorney’s fees, within the program guidelines, are between $40 and $125 per hour, depending on the income level in which the client may fall. Within these guidelines, the hourly fees are set as agreed upon between the attorney and client. Retainer fees of between $500 and $1,000 are also set up between attorney and client.

Limited Scope Program Another service provided through the LRIS is the Limited Scope program. Unlike other referrals obtained via the LRIS, the half-hour consultation may be primarily reserved for an accurate description of limited representation services and additional screening of client eligibility by the attorney, rather than direct advice and assistance. Clients are able to obtain these services on a piece-by-piece basis, without paying a retainer fee. Clients are not the only parties to benefit from this practice—most attorneys find it to be a reciprocal rela-

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Your LRIS,

with a 90-minute actual mediation session with a qualified family law mediator for $150.

cont. from page 27

tionship. By expanding their practice to include limited representation, panel attorneys can market their services to a clientele who would not previously be expected to use or hire an attorney. Panel attorneys charge prevailing hourly rates on a pay-as-you-go method of billing. It is truly a winwin opportunity. Many of these Limited Scope or “unbundled” referrals have turned into regular retainer paying clients as well.

FLARe Program Your LRIS also has a mediation program available to clients. Our Family Law Alternative Resolution (FLARe) program consists of either a 30-minute orientation appointment for $30 with one or both parties, or, if both parties are agreeable to mediation, we can provide them

Once the mediation has been completed, the attorney notifies the LRIS and $120 of the fee collected is forwarded to the attorney. If the mediator is hired to prepare any documents or proceed any further with the attorney, the client is advised that the fees are set by the attorney themselves, after the first 90 minutes, usually at their regular rates. The LRIS does not discuss any fees with the client beyond their initial appointment. The cost of participating in the LRIS is $100 annually (the fee is waived if you are only taking Moderate Means clients—another benefit for newer attorneys trying to establish a family law practice). It is a minimal cost, compared to the benefits of having qualified, prescreened clients referred to you

for consultation. The cost of giving the client a free 30-minute consultation could be well worth your time, should the client hire you. The benefits of helping clients who might otherwise not be able to obtain legal counsel, through the Moderate Means or Limited Scope programs, can be rewarding as well. If you are interested in signing up for any of our panels on the LRIS, information can be found on our website at www.cccba.org/attorney/lawyer-referral-network or by calling our office at (925) 686-6900 Ext. 2. s Barbara Arsedo has been the Lawyer Referral & Information Services/Moderate Means Program Coordinator with the CCCBA for over seven years. Barbara also works closely with the California State Bar to assist other California bar associations in setting up and running these programs throughout the state.

Morrill Law Firm Phone 925.322.8615 • Fax 925.357.3151 2175 N. California Blvd., Suite 424 Walnut Creek, CA 94596

Joseph Morrill, Attorney Heather Hoekstra, Attorney Nathan Pastor, Attorney

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Will & Trust Litigation Financial Elder Abuse Conservatorships Estate Planning Trust Administration Probate Mediation

3220 Blume Drive, Suite 200 Richmond, CA 94806

Ruth Koller Burke, Of Counsel Vahishta Falahati, Of Counsel Nicole Morrill, Paralegal Jill Olivier, Paralegal


MCLE SELF-STUDY

please visit Contra Costa Lawyer Online at http://cclawyer.cccba.org/category/self-study-mcle and click on this article to download the MCLE Self-Study test form and instructions.

ethics corner

Ethics and Capacity

W

hat should a lawyer do when the client does not want to follow the lawyer’s advice? What if the client insists on a course of conduct that the lawyer is convinced is not in the client’s best interests? The answers to these questions are even more difficult when the client is not a mature, reasonably objective adult, when the client is mentally impaired, or when the client is under extraordinary pressure, such as being involved in a criminal trial or a custody dispute. In many respects, these issues are among the most difficult lawyers ever have to face. Think of the following situations: (1) You represent a teenager who wants to resume

by Carol M. Langford overnight visits with her father, recently released from prison for child molestation—of the daughter.

(2) Your client is an 85-year-old widow. She has recently befriended her gardener. She calls and tells you she wants to change her will, leaving her house and all of her financial assets to the gardener. You know that her current will leaves everything to her two children. (3) You represent a client on death row, who wants to die. (4) You represent a distraught and depressed woman who insists on taking the family home in a divorce, even though you know she cannot afford the upkeep and could go bankrupt down the road. It seems self-evident that the more trust the client has in the lawyer, the more likely the lawyer’s ability to persuade or dissuade, and thus avoid some of the “between Scylla and Charybdis” problems that arise with an impaired client. Of course, no matter how much the client trusts the lawyer, it’s not going to be enough all the time. So we have to turn to the Rules of Professional Conduct. While the California Rules are woefully inadequate on the impaired client (there is no specific Rule), the ABA Model Rules are more helpful. Courts can look to the ABA Rules when there is no California Rule on point, e.g., People vs. Ballard (1980) 104 Cal. App.3d 757. ABA Model Rule 1.2 describes settlement and the “objectives of representation” as matters for the client to decide, while the attorney decides other matters. It does not, however, address the question of to what extent the lawyer must follow the client’s stated choices, and when she or he can and should override the client’s wishes. Consider, for example, the case of David Mason and his two competing attorneys, where filing his appeal took on a life-or-death significance, addressing the ultimate point of the representation itself. His attorney, Charles Marson, tried for nine years to get him out from under a death sentence. Meanwhile, David Mason was trying to get him fired, so he could waive his appellate rights and be executed. He had help in this endeavor—attorney Michael Brady. CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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Ethics and Capacity, cont. from page 29

but is not required to, take protective action with respect to the client’s person and property.”

Brady argued that he was just carrying out his client’s desire to end his life versus facing life imprisonment for his client’s murder of four elderly Oakland residents.

Such action may include recommending appointment of a trustee, conservator or guardian ad litem. The attorney has the implied authority to make limited disclosures necessary to achieve the best interests of the client.

Marson and others argued that with Mason’s history of mental illness, childhood abuse and attempted suicide, he was not competent to make a decision about his future. On the morning of the execution, the San Francisco Chronicle reported about his attorney Michael Brady: “With the execution only moments away, Brady stood waiting for a signal from Mason to stop the execution and refile a federal appeal the inmate had chosen to withdraw in January. Prison officials and state prosecutors said they would honor any decision by Mason to pursue that appeal, even if he changed his mind while sitting in the execution chamber. But the signal never came.”1 Marson might have relied on ABA Model Rule 1.14 (a). It provides that when a client’s ability “to make adequately considered decisions” is impaired (whether because of minority, mental disability or for some other reason) the lawyer “shall, as far as possible, maintain a normal lawyerclient relationship with the client.” But what does this mean in practice? What does “as far as possible” mean? Or what about, as in the case of Ted Kaczynski, the man convicted as the Unabomber, his two lawyers believed he was substantially impaired, but the court found him competent to stand trial? Who decides what is in his best interests, as he sees them? The Bar Association of San Francisco Ethics Opinion 1999-2 provides guidance where the California Rules don’t tread. It holds that “an attorney who reasonably believes that a client is substantially unable to manage their own financial resources or resist fraud or undue influence, may, 30

MAY 2015

MCLE SELFSTUDY TEST To download the test form and instructions for this Self-Study MCLE article, visit www. contracostalawyer. org, and click on the “Self-Study MCLE” link at the top, then click on the “Ethics and Capacity” article. If you prefer to receive the test form via email, contact Liz Galliett at lgalliett@cccba.org or (925) 370-2540. This Opinion was written to clarify the attorney’s duties in light of other Ethics Opinions that would not allow an attorney to take action. San Diego Ethics Opinion 1978-1 had concluded that no conservatorship could be sought because it would reveal client confidences. It is true that our confidentiality rule has always been very strict. After the San Diego Opinion, the Rules of Professional Conduct were revised in 1989, but they did not address the impaired client situation. The Committee on Professional Responsibility and Conduct (COPRAC) then issued Formal Opinion 1989112, which concluded that seeking a conservatorship would be acting

adverse to the client and would be a revelation of client secrets. In their view, the lawyer’s option would be to withdraw from the representation. There is no explicit provision in Rule 3-700, which either permits or requires a member to withdraw from employment based on initiating a conservatorship. However, under section (C) (1), if the client is engaging in conduct which renders it “unreasonably difficult” to carry out the representation effectively, and that same conduct leads the attorney to the conclusion that the client needs a conservator, withdrawal may be permitted under some circumstances. That is because the attorney must maintain the client’s confidence and trust. The Bar Association of San Francisco Ethics Opinion argues that past Opinions hold form over substance, and that in their view it is not an all or nothing proposition. The attorney, for example, can hire a therapist, relative or other intermediary to facilitate communication with the client. It holds that action can be taken but should be the least intrusive. I applaud the Bar Association of San Francisco for stepping into the foray and attempting to give guidance to attorneys, even if it is in contradiction to the wording of the Rules. There are California cases that address how courts deal with a seriously impaired client;2 In Re the Conservatorship of Rooney, Los Angeles Superior Court case No. 126970 (first filed 2011), in which the elderly former actor Mickey Rooney first placed himself under a conservatorship and then sued his stepson for elder abuse, breach of fiduciary duty and misappropriation. The case is a textbook example of what can happen to elderly people when their will is overborne by others. Here, fortunately, Rooney was able to understand the benefits of a conservatorship and placed himself in the conservatorship for his own protection. The pleadings, available online, make for compelling reading.


In truth, though the State Bar can prosecute an attorney for seeking a conservatorship that the client might not want, I doubt that they would want to aggressively go after an attorney for getting the help that their client needs, as long as it was done in as limited a way as possible. They can and do exercise discretion on matters.

Northern California Mediator / Arbitrator

But don’t quote me on that. s Carol M. Langford is an attorney who advises lawyer on ethics issues. She specializes in State Bar defense work and licensing issues before the various professional boards. She is also a lecturer at U.C. Berkeley, Boalt Hall School of Law. 1“

Mason Put to Death,” Chronicle (San Francisco), Aug. 24, 1993, page one. 2

See People v. Deere, 808 P.2d 1181 (Cal. 1991), and People v. Bolden, 99 Cal.App. 3d 375 (1979).

18 years as Mediator 27 years as Arbitrator 35 years in Civil Practice

Roger F. Allen 510.832-7770 Ericksen, Arbuthnot 155 Grand Avenue, Suite 1050 Oakland, CA 94612

rallen@ericksenarbuthnot.com

• Training includes Mediation Course at Pepperdine University 1995 • Serving on Kaiser Medical Malpractice Neutral Arbitrators Panel • Settlement Commissioner, Alameda and Contra Costa Counties • Experienced in all areas of Tort Litigation, including injury, property damage, fire loss, malpractice, construction defect

CALL FOR BOARD NOMINATIONS You can be a leader in our legal community as a Director on the CCCBA Board. 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 30, 2015, for consideration by the Directors’ Nominating Committee at the regular October Board meeting, for approval by the Board. The Board may accept or reject any or all of the Committee’s nominations. The Board’s decision on the candidates for election as Directors may be supplemented by additional nominations made in writing by any member and seconded by four members of the Association, with the concurrence of the nominee, by September 30, 2015.

If you are interested in serving on the 2016 Board of Directors (or to fill an existing vacancy), submit your written nomination to: Theresa Hurley, Executive Director 2300 Clayton Rd., Ste. 520, Concord, CA 94520 thurley@cccba.org | (925) 370-2548

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inns of court

When Elder Abuse Crosses Over by Matthew Talbot

O

ne of the joys of being a part of the Inns of Court is the presentation itself. Usually, the pupilage group (led by a judge) puts on an entertaining and educational presentation, be it a series of vignettes, a game show or a determination on how long it takes for drunk people to sober up. Once a year, members get to be a part of the presentation and determine with the rest of the group which area of the law to discuss. We also work hard to make sure our presentation does not go longer than an hour, thereby delaying dinner (a truly important concern!). So, it was with great excitement that Judge Mockler’s pupilage group (Gregory Abel, Renee Haase, David Pastor, Ariel Brownell, Maria Crabtree, Ross Pytlik, Rita Holder and I) provided our presentation on elder abuse on March 12, 2015. The presentation was complicated, because it involved elder abuse law in three different arenas: probate, civil and criminal law. We were tightly scheduled with no time for questions or comments from the crowd. Whenever the groups take questions from a crowd of 80 lawyers,

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dire dinner delays are the result. The problem, of course, is that trying to keep 80 lawyers quiet is like trying to ride a bull: Lasting for eight seconds should be considered a success, and there’s a good chance it will be fatal. First, we looked at the probate law context for elder abuse. Our fact pattern related to a granddaughter, who unfortunately applied undue influence on her mentally incapacitated grandmother to obtain her house and thousands of dollars. David Pastor discussed the role of a conservatorship in assisting a person to manage the care of a vulnerable and/or elderly person. For example, in this case, a friend was applying for a temporary conservatorship to immediately protect the grandmother from the granddaughter. The purpose of a temporary conservatorship is to stabilize a situation and “stop the bleeding.” In the first vignette, I advocated for the friend being appointed, while Renee Haase argued for the granddaughter to be appointed. Even though the granddaughter had priority to be conservator, due to the concerns regarding elder abuse, the court chose the friend. Fast forward to the next hearing on the matter, and now the judge considered who to make as general conservator, which is a more permanent version of a temporary conservator. Here, the consideration

was less on who was going to help stabilize the situation for the grandmother, but rather who was better long term for the grandmother. At the hearing, I (as the attorney for the friend), was in fiery opposition to the granddaughter and even wanted to obtain a restraining order against her on behalf of her grandmother. The court was concerned about restricting the grandmother from seeing her granddaughter and was extremely hesitant to appoint the friend. However, the investigation done by the friend as temporary conservator confirmed the accusations of elder abuse. As such, the court took action and invited Ariel Brownell, attorney for a neutral third-party professional fiduciary, to argue why a neutral third party was in the best position to manage the care of the conservatee. Even though no party had asked for a professional fiduciary to step in, the court felt it had no choice in protecting the interests of the conservatee long term and appointed the professional fiduciary to act as conservator, notwithstanding the cost. The next vignette related to elder abuse in a civil context and depicted a court hearing for a Quiet Title action, which is brought when there is a problem with a deed and the ownership situation needs to be clarified.


Here, the granddaughter had convinced her grandmother to deed over the house to her. The grandmother had signed a deed as an individual owner of the house. However, the house was owned by the grandmother as trustee of her trust. This may seem like a technicality, but don’t knock technicalities— they put our kids through college! In the world of deeds, the grantor of the house and the owner of the house must match 100 percent. Since they did not, the deed was never valid.

civil or criminal. The purpose of this presentation was to take a look at the different proceedings and educate our members. The signs of elder abuse can often be difficult to determine. It is important for people to understand how to prevent or avoid it and help their family whenever possible. If you are interested in applying for RGMAIOC membership, please contact Patricia Kelly at patriciakelly@pacbell.net. s

There was also a second deed, where the deed matched title, but it was signed at a time when all parties agreed the grandmother had dementia and lacked capacity to understand what she was signing. So, the granddaughter brought a Quiet Title action to resolve the ownership situation with the deed. The court, however, had concerns regarding elder abuse relating to the execution of the first deed and did not issue an order clarifying the title in favor of the granddaughter. The last vignette related to elder abuse in a criminal setting. Here, Ross Pytlik played the ADA prosecuting the granddaughter for various criminal elder abuse violations, such as fraud. Rita Holder played the PD, who was asserting that her client was preparing an accounting that would vindicate her.

Elder abuse is a crime that can be tackled through any number of legal proceedings, be they probate,

WANTED — Conservatorships think

Matt Toth

as in 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 Lafayette, CA 94549 AV Martindale-Hubbell

30 years experience Probate-Trust Paralegal 3445 Golden Gate Way Lafayette, CA 94549 (925) 283-6998 l.neiger@mac.com

Elder Law is

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.

The court wanted to hear from the abused herself, and Maria Crabtree, playing the grandmother, read a Victim Impact Statement. These statements are written or oral information from crime victims, in their own words, about how a crime has affected them. Even though the grandmother was not entirely mentally competent, she could still express her feelings and desires about the situation.

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

n

925.256.0298 www.YoungElderLaw.com 1931 San Miguel Drive, Suite 220 Walnut Creek, California 94596

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CALENDAR UPCOMING EVENTS | OVERVIEW May 4-15 | Food From the Bar

24th Annual Food From the Bar Drive more details on page 35 May 5 | Bankruptcy Law Section

A Loan Modification Primer: Trending Issues for Clients and Their Counsel Inside and Outside Bankruptcy more details on page 35 May 7 | Res Ipsa Jokuitor XX

Comedy Night & Kickoff for Food from the Bar 2015 more details on page 21 May 12 | Tax Section

A Fast-Paced Overview of Business Valuation for Attorneys more details on page 35 May 27 | Family Law Section

Frazzled? How the State Bar Lawyer’s Assistance Program Can Help You more details on page 35

May 16 | CCCBA

Bench/Bar BBQ & Softball Game more details on page 35 May 20 | CCCBA

Look Before You Leap in Changing Law Firms, Part 2 of the 2015 Law Practice Management Series more details on page 36 June 11 | CCCBA

Get to Know Your Family Law Judges more details on page 36 June 17 | CCCBA

Everyone’s Doing It: The Explicit Effect of Implicit Bias, Part 3 of the 2015 Law Practice Management Series more details on page 36 June 24 | Barristers/Young Lawyers Section

All Sections’ Summer Mixer more details on page 36

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

Law Offices of David A. Arietta BANKRUPTCY ESTATE PLANNING TRUST ADMINISTRATION AND PROBATE 700 Ygnacio Valley Rd, Ste 150 Walnut Creek, CA 94596 (925) 472-8000 david@ariettalaw.com

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Certified Specialist Bankruptcy Law State Bar of California Board of Legal Specialization Rated AV Preeminent Martindale-Hubbell

www.AriettaLaw.com


May 4-15 | Food From the Bar

May 5 | Bankruptcy Law Section

May 12 | Tax Section

24th Annual Food From the Bar Drive

A Loan Modification Primer: Trending Issues for Clients and Their Counsel Inside and Outside Bankruptcy

A Fast-Paced Overview of Business Valuation for Attorneys

Make a difference to the hungry people in Contra Costa County (and show those other law firms how generous your firm really is)! This year marks the 24th Annual Food From the Bar drive benefitting the Food Bank of Contra Costa and Solano. You can donate money and/or non-perishable food items.

Lunch will be provided. Speaker: Selwyn D. Whitehead, Esq., Bankruptcy Law Certified Specialist Time: 12 pm – 1:30 pm

A presentation on the fundamentals of business valuation (BV) for estate, gift and other tax purposes, buy-sell, shareholder disputes, and succession planning. At the end of this presentation, you’ll be better able to spot issues that affect valuation, and use business valuations more effectively in your practice.

It’s easy, just add some extra items to your shopping cart, then bring them to your office and put it in the Food Bank barrel.

Location: CCCBA Office, 5th Floor Conference Room, 2300 Clayton Rd., Concord MCLE: 1 hour general MCLE credit

Time: 12 pm – 1:30 pm

Even easier is to donate money—for every $20 you give, the Food Bank can provide 40 nutritious meals to hungry people in Contra Costa county. All monetary donations are tax-deductible and will be acknowledged.

Cost: $25 for section members and law student members, $35 for CCCBA members, $45 for non-members

Location: Archer Norris 2033 N. Main St., Ste. 800, Walnut Creek

The firm with the highest per capita figures in each category will receive an individual award for permanent display in their office.

Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Liz Galliett at (925) 370-2540 or lgalliett@cccba.org

Do your part to feed the hungry in your area. Participate in Food From the Bar!

Speaker: Al Statz, CBA, ASA, M&AMI

MCLE: 1 hour tax specialization MCLE credit Cost: $10 for section members, free for law student members, $15 for CCCBA members, $25 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Liz Galliett at (925) 370-2540 or lgalliett@cccba.org

To donate or for more info, go to www.foodbankccs.org/fftbcc. May 27 | Family Law Section

May 16 | CCCBA

May 20 | CCCBA

Frazzled? How the State Bar Lawyer’s Assistance Program Can Help You

Bench/Bar BBQ & Softball Game

Look Before You Leap in Changing Law Firms, Part 2 of the 2015 Law Practice Management Series

Meal choices are: Grilled Salmon, Roast Sirloin and Vegetable Risotto Speaker: Richard Carlton, Acting Director, Lawyer Assistance Program, State Bar of California Time: 12 pm – 1:15 pm Location: Contra Costa Country Club, 801 Golf Club Rd., Pleasant Hill MCLE: 1 hour competence issues MCLE credit Cost: $50 for section members and law student members, $75 for CCCBA members, $100 for non-members Registration: Please send payment to FLS, PO Box 5818, Concord, CA 94524 More Info: Contact Therese Bruce at (925) 930-6789 or fls.cccba@gmail.com

We’ll provide the hamburgers, veggie burgers, hot dogs, condiments and soft drinks. Bring food according to your MCLE Compliance Group: • • • •

Group 1 (A-G): Appetizers Group 2 (H-M): Salad Group 3 (N-Z): Dessert BYOB (no glass containers)

Please arrive promptly if you want to play (bring your glove). Teams will be mixed. Supporters and cheerleaders encouraged. Time: 3 pm – 6 pm Location: Heather Farms Park 301 N. San Carlos Dr., Field 5, Walnut Creek RSVP: Online at www.cccba.org/attorney/calendar More Info: Contact Liz Galliett at (925) 370-2540 or lgalliett@cccba.org

This seminar will address in general terms the ethical and practical considerations surrounding the departure of partners and associates from a law firm. Speakers: Roger J. Brothers, Esq., Buchman Provine Brothers Smith, LLP Richard Frankel, Esq., Frankel Goldware Ferber, LLP Time: 4:30 pm – 6 pm Location: JFK University 100 Ellinwood Way, Room S209, Pleasant Hill MCLE: 1 hour legal ethics, 0.5 hours general MCLE credit Cost: $20 for CCCBA members, $10 for law student members, $30 for non-members Registration: Online at www.cccba.org/attorney/calendar More Info: Contact Liz Galliett at (925) 370-2540 or lgalliett@cccba.org

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June 11 | CCCBA

June 17 | CCCBA

June 24 | Barristers/Young Lawyers Section

Get to Know Your Family Law Judges

Everyone’s Doing It: The Explicit Effect of Implicit Bias, Part 3 of the 2015 Law Practice Management Series

All Sections’ Summer Mixer

Please join us for an opportunity to get to know members of our local Family Law bench on a one-to-one basis. Enjoy refreshments and conversation with Judges Weil, Bowen, Landau, Santos and the newest member of the Family Law Division, Commissioner Kathleen Murphy. Hosted by Whiting, Fallon, Ross & Abel Time: 5:30 pm – 7 pm Location: Whiting, Fallon, Ross & Abel 101 Ygnacio Valley Rd., Walnut Creek RSVP: Online at www.cccba.org/attorney/calendar More Info: Contact Liz Galliett at (925) 370-2540 or lgalliett@cccba.org

This program is split into two parts: In Part I, Marina Sarmiento Feehan will discuss Implicit Bias; in Part II, Megan Roth will talk about the importance of CRM (Client Relationship Management). Speakers: Marina Sarmiento Feehan, Esq., Founder, Positive Counsel Megan Roth, Marketing Manager, Insightly Time: 4:30 pm – 6 pm Location: JFK University 100 Ellinwood Way, Room S209, Pleasant Hill

Join us in celebrating the start of summer! Catch up with old friends, get to know some new faces and relax with your CCCBA colleagues. This is also your opportunity to learn more about CCCBA’s 19 different sections from section leadership. This event is FREE to all CCCBA members. We’ll provide appetizers and a drink ticket to everyone in attendance. We hope to see you there! Please RSVP so that we can make sure to order enough food. Time: 5 pm – 7:30 pm

MCLE: 1 hour elimination of bias MCLE credit

Location: Salvio Pacheco Square 2151 Salvio St., Concord

Cost: $20 for CCCBA members, $10 for law student members, $30 for non-members

RSVP: Online at www.cccba.org/attorney/calendar

Registration: Online at www.cccba.org/attorney/calendar

More Info: Contact Liz Galliett at (925) 370-2540 or lgalliett@cccba.org

More Info: Contact Liz Galliett at (925) 370-2540 or lgalliett@cccba.org

Advertise in the Member Directory Reserve your spot by June 5, 2015

CCCBA MEMBER RATES DISPLAY ADVERTISING (black & white rates)

Full page 3/4 page 1/2 page 1/4 page 1/8 page

$1,650 $1,200 $ 900 $ 600 $ 425

LISTINGS

Professional listings in the Services, Experts or ADR Directories are $175. With the purchase of a display ad, you receive one free listing. Additional lines are $50 each. Additional categories are $75 each.

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For more information, contact Dawnell Blaylock, Communications Coordinator at (925) 370-2542 or dblaylock@cccba.org.


Thank you to our Mock Trial Volunteers Volunteer Judges Hon. Steve Austin, Contra Costa Superior Court Brooke Barnum-Roberts, CCC District Attorney’s Office Hon. Barry Baskin, Contra Costa Superior Court Hon. Terence Bruiniers, First District Court of Appeal Hon. Charles Burch, Contra Costa Superior Court Daniel Cabral, CCC District Attorney’s Office Michael Chamberlain, California Department of Justice Jerry Chang, Law Office of Jerry Chang, LLP Patrick Cannon, CCC Public Defender’s Office Aron DeFerrari, CCC District Attorney’s Office Hon. Roger Efremsky, United States Bankruptcy Court Hon. Richard Flier (ret.), ADR Services, Inc. Hon. David Flinn (ret.), Contra Costa Superior Court Barry Grove, CCC District Attorney’s Office Matthew Guichard, Guichard, Teng & Portello, LLP Blair Hoffman, California Supreme Court Hon. John Kennedy, Contra Costa Superior Court Hon. Leslie Landau, Contra Costa Superior Court Robin Lipetzky, Office of the Public Defender Hon. Clare Maier, Contra Costa Superior Court Dirk Manoukian, The Law Office of Dirk Manoukian Hon. Terri Mockler, Contra Costa Superior Court Brett Morris, California Attorney General’s Office Hon. Dan O’Malley, O’Connor, Runckel & O’Malley, LLP Hon. Mary Ann O’Malley, Contra Costa Superior Court Hon. Lowell Richards, Contra Costa Superior Court Hon. Anita Santos, Contra Costa Superior Court Hon. Steve Treat, Contra Costa Superior Court Dominique Yancey, CCC District Attorney’s Office

Volunteer Scorers Colin Alexander, CCC District Attorney’s Office Bhupen Amin, Lotus Hotels & Investments Mary Blumberg, CCC District Attorney’s Office Brittany Armstrong, CCC District Attorney’s Office Barakah Amaral, Solano County District Attorney’s Office Tamara Bartlett, CCC District Attorney’s Office Mary Blumberg, CCC District Attorney’s Office Luke Bernthal, CCC District Attorney’s Office Bradford Bowen, CCC District Attorney’s Office Maryanne Britten, CCC Office of Education Kristen Busby, CCC District Attorney’s Office Matt Caron, CCC District Attorney’s Office Greg Chiarella, CCC District Attorney’s Office Matthew Cody Angelo Costanza, Law Office of Angelo Costanza Sara Craig, Hastings Law School Kevin Cunnane, CCC District Attorney’s Office Jachyn Davis, Contra Costa County Counsel Laura Delehunt, CCC District Attorney’s Office Steven Derby, The Derby Law Firm Edelmira Diaz-Weaver, Marin Cnty. Public Defender’s Office Angela Dib, CCC District Attorney’s Office Eric Dickson, CCC District Attorney’s Office

Brian Duus, Stubbs & Leone Law Office Courtney Dyer, CCC District Attorney’s Office Robert Ewing, Danville City Attorney Scott Fink, Gibson, Dunn & Crutcher, LLP Carla Garrett Nicholas Gohn, CCC District Attorney’s Office James Gotch, Stubbs & Leone Law Office Ella Gower, Miller Starr Regalia, LLP Matt Graham, Wendel, Rosen, Black & Dean, LLP Dave Harris, Miller Starr Regalia, LLP Sloan Heffron, CCC District Attorney’s Office Patricia Horner, CCC District Attorney’s Office Matthew Jacobs, CCC District Attorney’s Office Ann Johnston, Coblentz, Patch, Dufy & Bass, LLP Malisha Jones, CCC District Attorney’s Office Kyle Junginger, Zeltiq Aesthetics, Inc. Kyle Kahan, CCC District Attorney’s Office Stephanie Kang, CCC District Attorney’s Office Dodie Katague, CCC District Attorney’s Office Kelly Kraetsch, CCC District Attorney’s Office Matthew Kranzthor, CCC District Attorney’s Office Evan Kuluk, CCC Public Defender’s Office Kevin Lally, Greenan, Peffer, Sallander & Lally, LLP D.J. Lee, Solano County District Attorney’s Office Jonathan Lee, U.S. Attorney’s Office Paula Lorentzen, Law Office of Paula Lorentzen Doug MacMaster, CCC District Attorney’s Office Leonard Marquez, Wendel, Rosen, Black & Dean, LLP Molly McClure, Alameda Cnty. Public Defender’s Office Jay Melaas, CCC District Attorney’s Office Mark Meuser, Meuser Law Group, Inc. Lori Mullins, Golden Gate University Marina Pitts, Stubbs & Leone Law Office Scott Prosser, CCC District Attorney’s Office Lynnette Quintana, JFKU College of Law Phyllis Redman, CCC District Attorney’s Office Kelly Rem, Lozano Smith, LLP Charina Rhone, Law Office of Matthew J. Gonsalves Ray Robinson, Robinson Legal Sandra Rosen, Ross Stores, Inc. Jennifer Roque, CCC District Attorney’s Office Christopher Sansoe, CCC District Attorney’s Office Jeremy Seymour, CCC District Attorney’s Office Rachel Sommovilla, City of Richmond Thomas Sponsler, Law Professor Sara Starr, Miller Starr Regalia, LLP Andrea Tavenier, CCC District Attorney’s Office Stephenie Teichman Saron Tesfai, CCC District Attorney’s Office Robin Thornton, Greenan Peffer Sallander & Lally, LLP Amy Tingey Ron Tran, CCC District Attorney’s Office Lauren Whalen, CCC District Attorney’s Office Caleb Webster, CCC District Attorney’s Office Adam Wilks, CCC District Attorney’s Office Jonathan Wolff, California Attorney General’s Office John Worden, Schiff Hardin, LLP Melanie Yabut, JFKU College of Law

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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CLASSIFIEDS PROBATE PARALEGAL TO ATTORNEYS

advertisers  index

WALNUT CREEK SPACE WITH VIEW

Joanne C. McCarthy. 2204 Concord Blvd. Concord, CA 94520. Call (925) 689-9244.

Single Office For Sublet; Downtown Walnut Creek; 6th Floor View; Secretarial Setup; Furnished or not; Class A. Call (925) 938-5880.

ADR Services . . . . . . . . . . . . . . . . . . . . . . . 39 Roger F. Allen . . . . . . . . . . . . . . . . . . . . . . 31 David Arietta . . . . . . . . . . . . . . . . . . . . . . 34 Barr & Young Attorneys . . . . . . . . . . . . . 8

BEAUTIFUL WALNUT CREEK OFFICE SPACE AVAILABLE

Beautiful offices w/ 7 solos. Networking poss. Single story converted house w/ pillars, built in’s, FP, molding, kit., conf rm, lg treed rear deck, etc. Corner w/ skylight & built-ins. Perfect for working hard and relaxing at end of long day! Very congenial. No smoking. Call Paul at (925) 938-8990.

LAW OFFICES AVAILABLE IN WALNUT CREEK Three large window offices and one smaller office available in a nine office attorney suite in downtown Walnut Creek. Offices are on the seventh floor in Class A office building. All amenities including receptionist, conference room, secretarial area, and kitchen. Call Elliott at (925) 947-1333 or Larry at (925) 977-3898.

Bingham Osborn & Scarborough, LLC . . . . . . . . . . . . . . . . 26 Bray & Greenwood . . . . . . . . . . . . . . . . . 25 Dean A. Christopherson . . . . . . . . . . . . 18 Diablo Valley Reporting Services . . 40 Lenczowski Law Offices . . . . . . . . . . . . 17 Morrill Law Firm . . . . . . . . . . . . . . . . . . 28 Mullin Law Firm . . . . . . . . . . . . . . . . . . 12 Perry A. Novak , UBS Financial Services, Inc. . . . . . . . . . . . . 2 David B. Pastor . . . . . . . . . . . . . . . . . . . . . 17 Pedder, Hesseltine, Walker & Toth, LLP . . . . . . . . . . . . . . . . . . . . . . 10, 33 Law Offices of Reed K. Scott . . . . . . . . . 8

Advertise

in the Contra Costa Lawyer DISPLAY AD PRINT MEMBER RATES: Full page: Full page Color: 2/3 page: 1/2 page: 1/2 page Color: 1/3 page: 1/6 page: Business card: 1/12 page:

$ 550 $ 690 $ 500 $ 415 $ 520 $ 350 $ 215 $ 165 $ 125

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Candice Stoddard . . . . . . . . . . . . . . . . . . 10 Temmerman, Cilley & Kohlmann . . . 7 Lisa M. West . . . . . . . . . . . . . . . . . . . . . . . . 33

ONLINE AD RATE:

Michael J. Young . . . . . . . . . . . . . . . . . . . 33

$165/ month for members. Substantial discounts available for three or more insertions.

Youngman & Ericsson . . . . . . . . . . . 18, 23

CLASSIFIEDS ONLINE: $50/ month flat fee. In addition to text, you may add photos or graphics at no additional charge.

CLASSIFIEDS - PRINT: Member rates are $15 per line for a one-time insertion and $12.50 per line for three or more insertions.

Scott Valley Bank . . . . . . . . . . . . . . . . . . 15

Call Dawnell Blaylock at (925) 370-2542 or email dblaylock@cccba.org.

Zandonella Reporting Service . . . . . 39


CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER

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DIABLO VALLEY REPORTING SERVICES Certified Shorthand Reporters

Serving the entire Bay Area • Deposition Reporting • Experienced Professional Reporters • Computerized Transcription • Deposition Suites Available • Expeditious Delivery • BART Accessible

2121 N. California Blvd.  Suite 290 Walnut Creek, CA 94596

925.930.7388 fax

925.935.6957

dvrs2121@yahoo.com

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MAY 2015