Sacramento Lawyer Magazine Spring 2021

Lawyer SACRAMENTO

SPRING 2021

SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

Giving Back in Retirement: Betsy Jennings

2021 SCBA President

Trevor Carson www.sacbar.org

Cruz Reynoso Bar Association Honors Judge David De Alba with Defensor de Justicia Award

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INDEX SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE

SPRING 2021 VOLUME 121, NUMBER 1

Lawyer SACRAMENTO

COVER STORY

10 Trevor Carson SCBA President for 2021 FEATURE ARTICLE 16 Health & Stress Management in the Age of COVID & Beyond 20 Help for Attorneys Representing Incapacitated Clients – Proposed Ethics Opinion from the California State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) SECTION & AFFILIATE NEWS

Photo by Milenko Vlaisavljevic

18 Cruz Reynoso Bar Association Honors Judge David De Alba with Defensor de Justicia Award 23 Immigration Law Section Update 24 Solo/Small Practice Division Update EVENTS 8

The Virtual Valentine Run/Walk, Race for Justice Was a Fun Distraction in 2021

CAPITAL PRO BONO 14 Giving Back in Retirement: Betsy Jennings DEPARTMENTS 6

EDITORS Ellen Arabian-Lee Arabian-Lee Law Corporation Kim Garner Duggan McHugh Law Corporation EDITORS EMERITAE Betsy Kimball Heather Hoganson Editor@sacbar.org

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President’s Message

PRODUCTION DESIGN Milenko Vlaisavljevic (916) 604-9682 milenko@sacbar.org ADVERTISING SALES, MEMBERSHIP, EVENTS, MEMBER CLASSIFIED ADS Cecilia Uribe (916) 604-9667 cecilia.uribe@sacbar.org

SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

SCBA OFFICERS Trevor Carson - President Bryan Hawkins - 1st Vice President Andi Liebenbaum - 2nd Vice President Betsy S. Kimball - Secretary/Treasurer FEE ARBITRATION Martha Fenchen (916) 604-9726 mfenchen@sacbar.org

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14 Sacramento Lawyer welcomes letters and article suggestions from readers.

Please e-mail them to editor@sacbar.org. The Sacramento County Bar Association reserves the right to edit articles and letters submitted for publication. Please contact the SCBA at 916-564-3780 for deadline information or fax 916-564-3787. Web page: www.sacbar.org. Caveat: Articles and other work submitted to Sacramento Lawyer become the copyrighted property of the Sacramento County Bar Association. Returns of tangible items such as photographs are by permission of the Editors, by pickup at the SCBA office only.

24 Sacramento Lawyer (USPS 0981-300) is published quarterly by the Sacramento County Bar Association, 8928 Volunteer Lane, Suite 250, Sacramento, CA 95826.

Issn 1087-8771. Annual subscription rate: $6.00 included in membership dues, or $24.00 for nonmembers. Periodicals postage paid at Sacramento, California. Postmaster: Send address changes to Sacramento Lawyer, 8928 Volunteer Lane, Suite 250, Sacramento, CA 95826. Copyright 2021 by the Sacramento County Bar Association.

www.sacbar.org | Spring 2021 | SACRAMENTO LAWYER

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PRESIDENT'S MESSAGE Trevor E. Carson, President, Sacramento County Bar Association.

He can be reached at trevor@rootedlegal.com.

President's Message

O

n March 11, 2020, the World Health Organization declared COVID-19 a pandemic, meaning the disease was having a global impact. COVID-19 has enormously affected countless individuals and businesses, including the Sacramento County Bar Association (SCBA). The Association’s revenue dramatically decreased on several fronts, including membership and events. Like every business, we had to adapt.

The SCBA unfortunately separated with several employees and was forced to radically cut costs.

The Association was in a lease agreement for 4,123 square feet of unused and expensive space. It was an enormous financial burden that resulted in a lot of meetings attempting to work out solutions. Ultimately, the SCBA was able to negotiate out of the lease and secured a new home at 8928 Volunteer Lane, Suite 250, Sacramento. The new space is substantially more affordable and is truly helping to solidify our future. I am grateful to Ognian Gavrilov and Kirill Tarasenko for their help with this new location.

The SCBA has successfully navigated a full year of COVID-19; however, there is still plenty of work ahead and we are dealing with a variety of problems. On

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February 23, 2021, the Lawyer Referral and Information Service (LRIS) was placed on hiatus. The Executive Committee is analyzing the underpinnings of the LRIS to create a possible plan of action for reviving the program. The Executive Committee is also reviewing several other programs and attempting to find an equitable way of sharing the workload among the current staff who are all parttime: Martha Fenchen, Cecilia Uribe, and Milenko Vlaisavljevic. Their assistance with daily business affairs of the organization has been exceptionally helpful. I’m appreciative to all of the staff for their willingness to adapt and their dedication to this organization. The Association has hired a new bookkeeper to convert our old accounting system to an online platform with remote deposits that will be more efficient. The Executive Committee is working on smaller tasks such as consolidating bank accounts and decreasing office costs relating to the office printer and postage. We are also exploring the possibility of expanding the fee arbitration program to neighboring jurisdictions, which will ideally increase revenues.

There are plenty of fires that need immediate attention; never-

SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

theless, I am still focused on membership benefits. I hope to create a standard contract for third-parties who agree to provide benefits to members of the SCBA. I want to secure more discounts on professional and personal products and services and to expand our list of local vendors offering discounts to SCBA members. I hope to begin marketing these benefits on social media platforms and the weekly newsletter before the end of the year.

Although vaccines are currently being distributed, I do not expect life to return to normal any time soon. I anticipate the Association will continue to hold virtual-only events until at least mid-Summer 2021. The SCBA has already decided that Bench-Bar Reception will be hosted virtually on May 27, 2021. As time progresses, we will continue to assess the situation with the intention of eventually transitioning back to in-person events. Personally, my hope is to host an in-person Annual Meeting in December 2021.

I believe COVID-19 has created an opportunity to thoroughly assess the foundation of the Association and we will come out of this substantially stronger. I’m thankful for this opportunity to serve the Association as 2021 President.

EVENTS

Nanette Aubut, Development Director of Legal Services of Northern California.

She can be reached at naubut@lsnc.net.

The Virtual Valentine Run/Walk, Race for Justice Was a Fun Distraction in 2021 By Nanette Aubut

L

ike everything else during the pandemic, the Valentine Run/ Walk, Race for Justice became virtual in 2021. LSNC raised more than $50,000 from the event to help community members who are low income, seniors and persons with disabilities with their civil legal aid needs.

Congratulations to the winners of the Valentine Run/Walk 4-miler!

Hans Van Horn won male overall at 22:45, Holly Tokar from Downey Brand won the female overall at 26:51, and Noah Gaiser and Hilda Schmelling tied for non-binary overall at 50:00.

The fastest attorney titles for 2021 go to our overall top winners, David Fox of Downey Brand at 23:41 and Hillary Hansen of Legal Services of Northern California

(LSNC), who clocked in at 30:11.

The run photo contest winners received two tickets to Disneyland.

They are all looking forward to the day when the park is open to visitors again! Maureen Cooper of Downey Brand won the Random Hearts Challenge, submitting a picture of a heart shaped cloud. Jarom Phipps from Murphy Austin Adams and Shoenfeld submitted a photo with his good boy, Thor, and won the Best Paw Pals contest.

Jenn and Amy Williams submitted a picture of their children participating, with Scout dressed up as an adorable cupid, winning the best dressed competition. Finally, siblings Anna Pifer-Foote and Aaron Pifer-Foote, won the Local Tour Challenge, with the winning photo of them at the Crest Theatre

in Sacramento.

Continuing their fundraising champion winning streak, the Gators, aka Gators Legal Aid Congregation, led by Co-Captains Paul Starkey and Lori Green were the winning fundraising team!

Last but not least, thank you to our awesome sponsors who have stuck with us through the pandemic. Gold Heart Sponsors: Brelsford Androvich & White, Dreyer Babich Buccola Wood Campora, LLP, and Seyfarth Shaw. Silver Heart sponsors: DLA Piper Sacramento, Downey Brand, and Jay-Allen Eisen. Bronze Heart sponsors: Delfino Madden LLP, Murphy Austin Adams Schoenfeld LLP, Orrick, Herrington & Sutcliffe LLP, and Remy Moose Manley LLP. Copper Heart Sponsors: Brisco Economics,

The Williams Family

Jarom Phipps and Thor

Anna Pifer-Foote and Aaron Pifer-Foote

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SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

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FEATURE ARTICLE Janden Ogsaen, an attorney, is a lifelong friend of Trevor Carson. He can be reached at janden@primelegalcenter.com.

Trevor Carson

SCBA PRESIDENT FOR 2021

By Janden Ogsaen

F

rom virtually the moment he was sworn in as a member of the California Bar, Trevor Carson has been active in the SCBA. He has served on various committees including Lawyer Referral and E-Media, participated in the California Conference of Bar Delegates, and worked for three years on the SCBA’s Executive Committee. SCBA Presidents always come well prepared to take the helm, and Carson is no exception.

Carson is a Sacramento native, the youngest of Brenda and Vernon Carson’s three sons. He learned about hard work as a child, starting with neighborhood “jobs” mowing lawns and stacking firewood (he recalls earning five cents per log stacked). As he grew older, he helped in the family business, Carson Pool Service. His first “real” job was at the Old Spaghetti Factory, where he worked for six

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SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

Trevor, second from the right, in his school band, 1998

years. Other jobs followed during high school and college summers.

Carson was raised as a Seventh-Day Adventist and was educated through high school at the Sacramento Adventist Academy.

He attended La Sierra University, a small Adventist college in Riverside, where he earned a B.A. in business administration. He then took a job as a workers’ compensation claims examiner for Sedgwick CMS. Carson always imagined that he would follow in his father’s footsteps and either take over the pool service company or start his own business. But he really enjoyed analyzing the merits of the workers’ compensation claims

he investigated, and this led him to consider law school.

Once he paid off his student loans from college, Carson applied to Pacific McGeorge and began to study law. He excelled. He was a member of the legal honors fraternity, Phi Delta Phi, and of the Traynor Society. He received Witkin Awards, became the Chief Articles Editor for the Pacific McGeorge Global Business & Development Law Journal, and consistently made the Dean’s Honor List. He also interned at different organizations each semester to expand his practical knowledge.

While Carson’s academic accomplishments are impressive, equally important to Carson is his top-lev-

Trevor with the engine he rebuilt for his first car, a 1963 Buick Skylark, 2001

el Capital Commendation for Public Service for completing over 150 hours of public service legal work.

Carson credits his Adventist upbringing for his dedication to community service.

Over the past decade, Carson has operated two successful law firms and built an admirable reputation within the local community. He has worked closely with more than 100 businesses throughout California and has assisted businesses expand to California from Asia, Europe, Australia, and South America. He is the founder and principal attorney of Rooted Legal, P.C. The SCBA is a 103-year-old organization. It was formed – ironically – during the flu pandemic of 1918. All SCBA Presidents step into big shoes left by their predecessors.

Serving as President during a pandemic presents special challenges, as the practice of law changes and the SCBA adjusts to its members’ needs. SCBA Second Vice President Andi Liebenbaum worked with Carson on the California Conference of Bar Delegates and, in 2020, on the SCBA’s Executive Committee. Says Liebenbaum, “It was clear from his engagement during the height of the pandemic that Trevor is prepared to lead the

Trevor after spelunking, 2014 www.sacbar.org | Spring 2021 | SACRAMENTO LAWYER

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SCBA with focus and compassion, a rare combination that is perfect for the current time.” Adds retired SCBA Executive Director Mary Burroughs, “Over all the years I worked with Trevor, I saw that he is a very hard worker, and I believe he has the ethical composition to be a good association president.

His moral compass is spot on, and he is willing to go the extra mile for the association.”

Carson understands that, although the SCBA is a non-profit organization, it must still operate

as a financially sound business. He believes that a membership-based organization must focus on its members to create a solid, sustainable foundation. Hence, his primary focus for 2021 is on putting the SCBA on sound financial ground and on expanding the SCBA’s member benefits. If, as President, Carson can expand on what works and retool any trouble areas, he believes there is room to grow the SCBA membership.

In May 2020, Carson married his partner and best friend, Alicia,

Trevor and Alicia, with Todd and Bella, 2017

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SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

Trevor and Alicia, 2020

after eight years together. They live in Arden-Arcade with two dogs and five chickens. He credits the pandemic for just one thing: improvement in his golf game. Trevor and Alicia look forward to resuming their travels and other adventures when the pandemic abates.

2012 SCBA President June Coleman first met Carson when he was in law school. “I could tell immediately that he was forthright and full of energy to join the justice system and make his mark. He has always impressed me as someone who can get the job done with boundless energy.” Trevor Carson is honored to serve as the SCBA President this year and to devote his best effort and energy to serving the association and the community. As 2020 SCBA President Shanāe Buffington concludes, “The SCBA is in excellent hands with Trevor.”

Date: May 6, 2021 ────

OPERATION PROTECT & DEFEND’S 2021 LAW DAY VIRTUAL AWARD CEREMONY Remarks by: California Secretary of State Dr. Shirley N. Weber      You are invited to Operation Protect & Defend’s 2021 Law Day Virtual Award Ceremony to recognize local high school student winners of OPD’s essay and art contests.

The ceremony will include a special presentation from OPD judges, attorneys, and teachers, as we support our commitment to civics.

Time: 5:30 – 7:00 p.m. ──── Cost: Free ──── This year’s award ceremony will be held via Zoom because of the ongoing COVID-19 pandemic.

To attend, please RSVP by May 5 at opdcivics.org/reg050621.

You will be sent a registration code the day of the event. ──── Please contact opdlawday@gmail.com with any questions.

────

OPD is funded entirely by sponsorship, donations, and grants.

Sponsorship opportunities are available at the $350, $700, $1200, and $2000 levels.

To learn more, visit opdcivics.org OR email:

sponsorship@opdcivics.org ────

OPD’s 2020 Law Day Virtual Ceremony – Student Art & OPD Judges www.sacbar.org | Spring 2021 | SACRAMENTO LAWYER

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CAPITAL PRO BONO Heather Tiffee is the Managing Attorney of Capital Pro Bono.

She can be reached at htiffee@capitalprobono.org.

Capital Pro Bono Needs You! Capital Pro Bono needs volunteers. During the COVID-19 pandemic, the CPB staff and volunteers are not meeting clients in person to protect the safety of staff, volunteers, and clients. CPB needs volunteers – especially experienced volunteers – in the areas of law for which it provides pro bono services, including employment law, Chapter 7 bankruptcy, family law, estate planning and probate, guardianships, and conservatorships. To

Giving Back in Retirement: Betsy Jennings

discuss – or better yet – to volunteer, please contact Heather Tiffee at htiffee@ capitalprobono.org.

By Heather Tiffee

I

t was the very good fortune of Capital Pro Bono (then the Voluntary Legal Services Program) a decade ago when attorney Betsy Jennings offered to help indigent members of our community with their legal problems. Since then,

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SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

she has helped CPB’s clients with their employment law issues, averaging 42 hours per year, for a total of over 420 hours of pro bono volunteer time.

Each year, CPB gives a volunteer-of-the-year award to one

CAPITAL PRO BONO

of our dedicated volunteers. The award, the June Black Pro Bono Award, is named in memory of June Black, CPB’s first program manager. For her generosity in sharing her time and expertise in helping CPB’s clients and mentoring less experienced attorneys and law students, CPB awarded Betsy Jennings its 2020 June Black Pro Bono Award.

Betsy Jennings has had a distinguished legal career. She obtained her B.A. from UC Berkeley and a J.D. from UC Berkeley School of Law. She practiced labor law at the Agricultural Labor Relations Board and was, before her retirement from the full-time practice of law in 2010, a senior attorney with the California Water Resources Control Board for many years. Later in her career at the Water Resources Control Board, Betsy rose to become lead attorney for appeals of all regional water board actions to the Board. She has also published several articles on water quality issues and has spoken on various water quality subjects at numerous conferences.

After her retirement from the Water Resources Control Board, Betsy worked part-time as an administrative law judge for the Office of Administrative Hearings, mostly hearing licensing cases.

It was at that time that Betsy also began her pro bono work at CPB – Voluntary Legal Services as it was known then.

Betsy says that she “wanted to give back to the community after I had gained so much personally from my legal education and career.” She also wanted a change from environmental law, which she had practiced for 30 years. She decided to return to her first ca-

reer in employment law. She knew that things had changed, and her original area had been labor law, rather than unemployment and wage and hour law. But, with her background in administrative law and hearings, and with “so much support from VLSP/CPB,” she “felt able to provide needed assistance to the clients.”

Betsy says that she “particularly liked the gratitude that clients showed, often commenting that finally someone was listening to them and helping them. I also enjoyed the camaraderie with the staff and other attorney volunteers.

Finally, I enjoyed meeting with the law students and helping them learn to interview clients, present their cases, and provide representation at hearings.”

Betsy has volunteered with CPB through the California Bar’s Pro Bono Practice Program, formerly the Emeritus Attorney Program.

Legal aid organizations throughout California benefit from the experience of retired attorneys, or those who are otherwise taking a break in their careers, who donate their time through IOLTA-funded programs like CPB. Over the years, CPB has had dozens of attorneys participate in this program.

Recently, Betsy has notified CPB that she is truly retiring from the practice of law in 2021 to spend more time with her family, including her grandchildren. We at CPB wish her all of the best and thank her for her years of service to our community. Congratulations, Betsy, on your well-deserved award and retirement.

The Pro Bono Practice Program The Pro Bono Practice Program is for California licensed attorneys who are not currently engaged in the practice of law, but who are interested in providing pro bono assistance to the indigent. Participants in the program have their California Bar dues waived, although they do need to comply with MCLE requirements while in the program. Numerous free MCLE programs are offered to these attorneys through CEB and PLI. Capital Pro Bono provides malpractice insurance to cover all of its volunteers, including those in the Pro Bono Practice Program.

If you would like to find out more about this worthwhile program, please go to www.calbar.ca.gov/Accessto-Justice/Pro-Bono/ProBono-Practice-Program. The staff at Capital Pro Bono would also enjoy speaking with you about your possible participation in this program.

www.sacbar.org | Spring 2021 | SACRAMENTO LAWYER

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FEATURE ARTICLE Gabrielle O’Neil, J.D. is a health and wellness coach with Beachbody. In the past, she has worked in the legal industry in the areas of litigation, as well as corporate and law firm training and sales.

Health & Stress Management in the Age of COVID & Beyond By Gabrielle O’Neil, J.D.

W

hile I was in law school, I didn’t think much about taking care of myself (who has time for that?). This caught up to me as I crept further into adulthood and, at the age of 41, I finally realized: If I wanted to be around for a long time, I’d better start making some changes. I researched and implemented building good nutrition habits and began exercising five days a week. Within six months, I had lost 20 pounds, but more importantly I felt really alive! In 2019, I began publicly sharing my journey with others as a way to help them begin theirs. Last year, I gave a talk

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to the SCBA on how minor changes in daily habits can lead to long-term positive results.

A full year of restrictions including working from home and limited travel can wreak havoc not only on our brains, but on our bodies as well. As a health and wellness coach, I have had countless conversations with people about the weight gain and heightened level of stress that being stuck in the house for an extended period of time has caused.

Stress has a number of effects on our bodies. It can cloud our judgement, make us feel tired, and cause us to gain weight due to increased levels

SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

of cortisol. As a result, our physical health is put at risk. We experience lower levels of immunity from viruses and disease, joint pains and even tension headaches and migraines.

Left untreated, these can lead to more serious illnesses down the road.

Combatting stress can be easy, once a plan is created and implemented. Four suggestions that I share with my clients are very simple and can be started immediately: 1. Drink Water: The general recommendation is to drink at least half of your body weight in ounces of water every day. For example, if

you weigh 180 pounds, the recommended amount of water you should drink daily is 90 ounces.

Lawyer SACRAMENTO

2. Move Your Body: We’ve all heard that 30 minutes a day, five days a week, of moderate physical activity is ideal. If this seems SACRAMENTO COUNTY BAR ASSOCIATION MAGAZINE to be a lofty goal for you, start at three days a week and find some1329 Howe Ave., #100 Sacramento, CA 95825 425 University Ave., Suite 120 ••Sacramento, CA 95825 thing that interests you. Take a ADVERTISE IN short walk, bike ride, stretch or do yoga at home. Set an alarm or reminder or write it in your calendar as an appointment. If you need accountability, find a partner or coach who will help keep you motivated.

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3. Eat Healthier: This is the area where most of us struggle. Too often we equate eating healthy with being difficult. This is not the case. There are a plethora of online resources where you can find simple ideas for healthy food swaps. Try not to focus on a quick fix or a diet. Start small and make a few changes while focusing on consistency. Over time, it will become a habit and ideally lead to a healthier lifestyle.

4. Practice Mindfulness: This can take place in a variety of ways - through meditation, Prayer, journaling, etc. Even 10 minutes a day has been found to reduce stress and improve mood.

In order to achieve long-term success, allow yourself to start small, and give yourself some grace. Every day may not be perfect, but putting effort into improving every day will begin to yield positive results. Some people are self-motivated, while others find that investing in a program or coach will force them to get the most for their money. Whatever your motivating factor is, set a date and start. Celebrate small victories, and continue to strive towards improving your overall health and wellness.

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Requires Knowledge Beyond Our Years17 www.sacbar.org | Spring 2021 | SACRAMENTO LAWYER

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FEATURE ARTICLE Brian López is the President of the Cruz Reynoso Bar Association. He can be contacted at brian.lopez@me.com.

Cruz Reynoso Bar Association Honors Judge David De Alba with Defensor de Justicia Award By Brian López

Brian López presents Defensor de Justicia award to Judge David De Alba

T

his past January 2021, the Cruz Reynoso Bar Association (CRBA) honored former Presiding Judge of the Sacramento Superior Court, Judge David De Alba, as the organization’s third Defensor de Justicia (Defender of Justice) award recipient. The CRBA’s Defensor de Justicia award was created in 2017 in honor of Justice Cruz Reynoso (Ret.), the first Latino Justice to sit on the California Supreme Court. Recipients of the award unequivocally exemplify Justice Reynoso’s life-long passion in pursuit of equality under

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Jesse Rivera, Justice Cruz Reynoso (Ret.), Judge David De Alba, Judicial Appointments Secretary Luis Céspedes, CRBA Board Chair George Acero

the law for all, and in particular for marginalized members of our society. Judge De Alba joins former California State Attorney General Xavier Becerra and Dean Kevin Johnson of UC Davis School of Law as the CRBA’s past Defensor De Justicia award recipients.

During the virtual ceremony, a line-up of distinguished speakers highlighted the life and contributions of Judge De Alba to the legal field and our local community with words of praise and congratulations from many of his fellow jurists, including special

SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

remarks from 2018 SCBA Judge of the Year, Judge Emily E. Vasquez of the Sacramento County Superior Court, current Presiding Judge of the Sacramento Superior Court, Judge Russell L. Hom, as well as US District Court Judge for the Eastern District, Judge Troy L. Nunley. Additional speakers included Judge Sonia Cortés of the Yolo County Superior Court, Judge Daniel A. Flores of the San Francisco County Superior Court, as well as Presiding Justice Vance W. Raye of the Third District Court of Appeal.

Each speaker shared a warm and personal glimpse into the enduring impact that Judge De Alba has had in his decades-long legal career in Sacramento and beyond.

One overarching theme that resounded clearly in each speakers’ remarks, and which was so aptly stated by Judge Nunley during the event, is that Judge De Alba is a “judge’s judge.” Whether as a colleague, mentor, or friend, Judge De Alba’s support and guidance have made him a strong and indispensable role-model, advocate, as well as trailblazer for members of our legal community who strive to emulate not only his success, but his selfless passion for causes which are greater than one’s self.

Notably, as was pointed out during Justice Raye’s words of congratulations to his longtime friend and colleague, Judge De Alba has never forgotten where he came from. Born to Mexican immigrant parents who raised him and his five younger siblings in San Francisco’s working-class Bayview neighborhood, Judge De Alba’s commitment to pursuing justice has been inextricably motivated by the path he navigated since his youth to becoming the highly regarded member of the bench and zealous advocate he is today.

Spurred by the work ethic and values instilled in him by his parents, Judge De Alba’s pursuit of higher education began at the local city college where he played on the school’s baseball team before ultimately attaining his undergraduate degree from UC Berkeley in 1976. He then later graduated from UCLA School of Law in 1979, where he served as an intern for Justice Reynoso, beginning what would be a lifelong relationship with the esteemed jurist in whose legacy Judge De Alba proudly stands as a recipient of the CRBA’s Defensor de Justicia Award created

in Justice Reynoso’s honor.

After law school, Judge De Alba worked in California’s Office of the Attorney General where he received the Attorney General’s Award for Outstanding Achievement in 1999. He was also inducted into the American Board of Trial Advocates due to his tremendous accomplishments as a trial attorney during this time that would result in Judge De Alba attaining the position of Special Assistant Attorney General. In 2001, Judge De Alba was appointed to the Sacramento Superior Court and has since continued and strengthened his commitment to the advancement of our profession by serving on various committees with the Judicial Council of California, as well as teaching as an adjunct professor for law school and community college courses.

In recognition of his many professional achievements, as well as his dedication to the local Sacramento legal community, Judge De Alba was previously awarded with the SCBA’s “Judge of the Year Award” in 2011. He was also honored by both the Latino Journal and the Capitol City Trial Lawyers Association, earning each organization’s own “Judge of the Year” awards in 2011 and 2016, respectively. From 2018 to 2019, Judge De Alba served as the Presiding Judge of the Sacramento Superior Court where he was instrumental in instituting court programs and reforms designed to alleviate the disparate and inequitable impact of the legal system on many underrepresented and disadvantaged populations.

Throughout his career, Judge De Alba has also selflessly aspired to contribute to the larger legal community by mentoring attorneys, law students and judges, many of whom are persons of color. Judge De Alba has also worked tirelessly to improve our legal system

though his volunteer involvement with many local and statewide legal organizations with the goal of advancing our profession through his tremendous experience and expertise, including as a past president of the former La Raza Lawyers Association of Sacramento in 1985, as well as one of the founding members of its transition to becoming the Cruz Reynoso Bar Association in 2016.

Without question, Judge De Alba’s personal and professional achievements throughout his career exemplify the value and goals of the CRBA, as well as the honorable Justice Cruz Reynoso to whom our organization’s name and mission pay homage. Judge De Alba’s legal career is representative of not only Justice Reynoso’s dedication to the pursuit of knowledge, but also his commitment towards service to his community and the fair administration of justice. The CRBA is proud to award Judge De Alba with this honor for all that he has done and continues to do to in order to lay the foundation for those who would aspire to follow in his footsteps.

Finally, during this year’s ceremony, the CRBA also began a new tradition of awarding a Defensor de Justicia scholarship award to a current law school student who has demonstrated potential and dedication to advancing diversity, equality and community. This year’s inaugural scholarship recipient was Yoxira Espinoza, a second year law at UC Davis School of Law and DACA beneficiary whose history of overcoming adversity to pursue a career in law is not only highly commendable, but deeply inspiring.

For those who were unable to attend the virtual event, please visit the CRBA website at www.crbasacramento.com to view the video on our “Events” page.

www.sacbar.org | Spring 2021 | SACRAMENTO LAWYER

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FEATURE ARTICLE Larry Doyle, former member, COPRAC. He can be contacted at Larry@LarryDoyleLaw.com.

Help for Attorneys Representing Incapacitated Clients – Proposed Ethics Opinion from the California State Bar’s Committee on Professional Responsibility and Conduct (COPRAC) By Larry Doyle

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fter literally decades of frustration, California attorneys whose clients demonstrate diminished capacity should be in a much better position to take steps to protect those clients under a proposed ethics opinion (Opinion 130002) by the California State Bar’s Committee on Professional Responsibility and Conduct (COPRAC), which will soon be sent to the Bar’s Board of Trustees for final approval.

Under the proposed opinion, California attorneys still will not have the same ability as attorneys in almost all other states to share their concerns with trusted members of the client’s family or to initiate conservatorship proceedings. But, by closely analyzing existing law and opining that attorneys may obtain prior consent from their clients to take specified protective steps under clearly specified circumstances, COPRAC has provided essential guidance to California attorneys along with hope that this protective tool will be far more recognized, accepted and utilized in the future for clients’ benefit.

The thing that stands in the way of California attorneys taking protective steps to protect a client is California’s toughest-in-the-nation duty of confidentiality, which is firmly established in both statute (Bus. & Prof. Code § 6068(e)) and rule (California Rule of Professional Conduct 1.6). The first paragraph

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of the former requires a California attorney “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” The only exception to the duty is found in the second paragraph (e)(2), which permits an attorney to reveal confidential information relating to the representation of a client to the extent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. The limitation of the statute to “criminal acts” renders it inapplicable as a mechanism for protecting clients with diminished capacity.

Because a client’s incapacity easily falls within the definition of a client confidence or secret, a nearly unbroken series of ethics opinions from COPRAC and other California bar associations (the Los Angeles County Bar Association, the San Diego County Bar Association, the Orange County Bar Association) have agreed that a lawyer cannot reveal any of the bad or irrational decisions the client proposes to make to anyone, even loving and trusted family members, without the client’s informed consent (the only outlier was the Bar Association of San Francisco in 1999, but that opinion was not based on California law and thus is not to be relied

SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

upon). And if the client is indeed suffering from diminished capacity or dementia, establishing that any consent is truly “informed” is an evidentiary challenge.

All but a very few states (at least 46) have adopted a variation of Rule 1.14 of the Model Rules of Professional Conduct (MRPC).

Under that rule, an attorney who reasonably believes a client has diminished capacity must, as far as reasonably possible, maintain a normal client-lawyer relationship with the client. But if the lawyer believes the client is at risk of substantial physical, financial, or other harm unless action is taken and cannot adequately act in the client’s own interest, the rule authorizes the lawyer to take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator, or guardian.

There have been many efforts to adopt a California version of MRPC 1.14 over the past 30 years or more, none of them successful. In the 1990’s, the State Bar of California’s then-Trusts and Estates Section proposed legislation to insert the standard into the Business and Professions Code as an exception to section 6068(e). The effort was rejected by the Bar’s Board of Governors.

In the early 2000’s, the state bar initiated a comprehensive overhaul of California’s Rules of Professional Conduct which was intended to bring California’s system, which was completely different from the Model Rules in many respects - including the numbering system - into closer conformity with the national model. The project lasted from 20002010. Among the changes proposed was enactment of a version of 1.14 very similar to the national model.

The whole of that decade-long effort was quietly rejected by the Supreme Court in 2014, which asked that a new commission be created and established clear parameters of what the Court expected.

The Second Rules Revision Commission (RRC) was appointed in 2017 and finished its task by May 2018. This RRC, too, took up the issue of a California-specific version of Rule 1.14 and produced one that was substantially weakened in the sense that it required the attorney to

obtain the client’s informed consent before taking any action. This was seen by many attorneys as gutting the law’s impact and really no different from existing law, which already permitted an attorney to act with informed client consent.

The only truly different element of the Second RRC’s version of Rule 1.14 was a provision authorizing the informed consent to be obtained in advance, while the client still had clear capacity. This provision was similar to an Advance Health Care Directive (AHCD), and would permit attorney and client to decide such things as the determination of diminished capacity and the specific actions that the attorney could take.

The California Supreme Court accepted and implemented all the rules proposed by the Second RRC - all except the proposed new 1.14.

The Court gave no reason for the rejection, leaving those concerned to speculate as to whether it objected to carving out an exception to Califor-

nia’s attorney duty of confidentiality, or whether it was unwilling to approve a rule in conflict with a statute (Bus. & Prof. Code section 6068(e)).

Perhaps the court it saw the rule as unnecessary in light of existing law, either in the case of either the requirement to obtain informed client consent, in the ability to provide that consent in advance, or both. Whatever the case, the revised California Rules of Professional Conduct that took effect in November 2018 once again failed to include a California-specific version of MRPC Rule 1.14.

Now back to COPRAC Draft Opinion 13-0002. When the RRC commenced the project in 2013, California law on the subject was pretty clear, but in a state of flux. COPRAC itself has addressed the issue in its formal opinion 1989-112, which stated that an attorney who sought to initiate conservatorship proceedings for a mentally incapacitated client violated not only the rules against

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confidentiality but also engaged in a conflict of interest by failing to represent the client, who in most cases would object to the conservatorship. Thus, if the lawyer could not dissuade the client from taking actions that the lawyer was convinced were not in the client’s best interest, the only ethical action the lawyer could take was to withdraw from representation. This result was consistent with that reached by the San Diego County Bar Association in its opinion 1978-1 and the Los Angeles County Bar Association in its opinion #450 in 1988. Only the Bar Association of San Francisco took a contrary position in its Opinion 1999-2, which opined that an attorney who reasonably believes a client is substantially unable to manage their own financial resources or resist fraud or undue influence may, but is not required to, take protective action with respect to the

client’s person and property. But as that opinion was based on the Model Rules and essentially ignored California’s contrary statutes and rules, it was largely disregarded in ethics circles.

None of those earlier opinions addressed the question of whether an attorney and client could agree prospectively on steps to be taken if the client began to demonstrate signs of diminished capacity, as RRC had proposed in the second version of Rule 1.14. However, COPRAC Opinion 1989-115 did. That opinion was based on the California Supreme Court’s decision in Maxwell v. Superior Court (1982) 20 Cal.3d 606, holding that an agreement by a criminal defendant to prospectively waive confidentiality with regard to the rights to his story as payment for legal services was not per se invalid. Based on this holding and the well-established

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statutory and case law authorizing advance health care directives, COPRAC came to the following conclusion, “A lawyer representing a competent client who may later become incapacitated may propose to the client that the client give advanced consent to protective disclosure in the event that such incapacity occurs. If appropriately limited and informed, such a consent is ethically proper.”

The authorization provided is far from open-ended. But assuming that draft COPRAC Opinion 13-0002 is approved by the State Bar’s Board of Trustees, it provides a framework for attorneys and clients to specify the circumstances under which the client can specify those conditions under which the attorney may determine that the client is suffering from diminished capacity and take appropriate protective steps.

Jennifer Hennessey is the Immigration Section Co-Chair and an attorney at Law Offices of Jennifer L. Hennessey. She can be contacted at jennifer@hennessey-law.com.

Immigration Law Section Update

By Jennifer Hennessey

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here are exciting new events happening in the Immigration Law Section this year. The Section welcomed Lisa Kobayashi as Co-Chair and Chuck Bonneau as Secretary. At monthly “power lunches” held on the first Friday of each month at noon, attorneys can get together virtually to discuss recent trends in immigration law, ask questions and share practical ideas with other attorneys. Contact a Section officer below directly by email for the Zoom link information if you are interested in attending. The Immigration Law Section is also planning several CLE events this year. Look for details and dates of upcoming CLE events to be posted on the SCBA calendar!

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SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

2021 Section Officers: • Co-Chair: Jennifer Hennessey jennifer@hennessey-law.com • Co-Chair: Lisa Kobayashi kobayashilawoffice@gmail.com • Secretary: Chuck Bonneau cbonneau@bortonpetrini.com • Member-at-Large: Brian Lopez brian@lopezlegalservices.com

www.sacbar.org | Spring 2021 | SACRAMENTO LAWYER

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SECTION & AFFILIATE NEWS Connor Olson, Co-Chair of the SSPD, practices civil litigation in the Sacramento region. He can be contacted at connor@cwo-law.com.

Solo/Small Practice Division Update

By Connor Olson

Money Matters The SCBA’s Solo/Small Practice Division kicked off the year by focusing on how to grow and scale small firms, while also watching out for the legal issues surrounding client trust accounts and different forms of payment. Beginning with Brooke Lively’s “Panic to Profit” presentation, the Solo/Small Practice Division continued its long tradition of offering law firm practice management guidance, which, especially in these times, can be just as important to its members as the actual legal work. In addition, local attorney Kenneth E. Bacon presented on the ethical concerns of handling advance deposits and the issues that arise with credit card and other payments. Together, the speakers provided practical and valuable advice to both long-term practitioners and others who are just starting in their careers.

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SACRAMENTO LAWYER | Spring 2021 | www.sacbar.org

Angelina Ray

Lisa Kobayahsi

Meet the Newest Board Members Numerous votes were cast in the Solo/Small Practice Division election, carrying on the tradition of strong engagement from our members. The board’s newest members include Angelina Ray, Alexandra Baron, and Lisa Kobayashi. Angelina founded her own practice in Elk Grove where she handles family law and civil litigation matters. Angelina credits Solo/ Small Practice Division events with providing her opportunities to learn how to effectively run her firm.

Alexandra has been in practice for seven years and focuses on family law and estate planning. As the Solo/Small Practice Division’s Communications Director, Alexandra looks forward to creating and maintaining a strong collaborative community of solo and small firms.

Lisa joins the Solo/Small Practice Division board after 15 years of immigration practice. As a veteran of many Solo/Small Practice Division events, Lisa cites our friendly and helpful membership as the reason for taking on her new board responsibilities.

Let’s Collaborate The Solo/Small Practice Division is committed to providing its members with the most relevant educational and networking opportunities as possible.

To that end, please feel free to contact Division board members to discuss possible topics and/or networking opportunities.

In the meantime, please check the SCBA calendar and website for upcoming Division events and news!

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