BU L L E T I N THE MAGAZINE
A L A M E D A C O U N TY B A R A SS O C I AT I O N
ACBA VOLUME 42 NUMBER 2 SUMMER 2011
justice for all: celebrating pro bono
BU L L E T I N THE MAGAZINE
Volume 42 Number 2 Summer 2011
A L A M E D A C O U N TY B A R A SS O C I AT I O N
COLUMNS Justice for All: Celebrating Pro Bono............11 This issue of THE BULLETIN showcases the Volunteer Legal Services Corporation, including the annual volunteer celebration featuring Chief Justice Tani Cantil-Sakuye, profiles of volunteers, and more.
My First Trip to the California Supreme Court ...........................24 ACBA Boardmember Denise Chambliss shares how, after 14 years in civil practice, she ended up in the state’s highest court.
Dollars for Depos: Hanset Bridget Legal Opinion Weights In.........26 The way that some law firms select who takes their depositions could place firms and court reporting firms in jeopardy with the IRS as well as California’s Department of Consumer Affairs Court Reporters Board.
President’s Message ............................................ 5 Volunteering...to help yourself Wayne S. Nishioka
Litigation Tips....................................................... 7 Rick Seltzer: Trial lawyer, mensch Tim H. Hallahan
Alameda County Law Library .................................9 Going solo without going alone: Resources for new solo firm practitioners at the Law Library Sean Kaneshiro
Leadership Firms ................................................30 Board Update ..................................................... 33 Member Benefits ................................................ 34 New Members .....................................................39
Law Firm Profile: Boxer & Gerson .................................................28 Kaysi Holman profiles Boxer & Gerson, LLP, the largest plaintiff’s workers’ compensation firm in Northern California.
In Conversation with Jason Stein ..................................................31 Evelyn Herrera, member of the ADR Section Executive Committee, sat down with Jason Stein, new administrator of the Court’s ADR Program
MCLE Self-Study: Measuring your Cross-Cultural Compentence ....35 Jatrine Bentsi-Enchill explains what cultural competence is in this article worth one hour of general MCLE credit.
ON THE COVER TOP ROW, LEFT TO RIGHT: Matthew Quiring and Alessia Cook; Larry Lulofs and Chief Justice Tani Cantil-Sakuye MIDDLE ROW: Judge Ioana Petrou, Nancy O’Malley and Judge Victoria Kolakowski; Commissioner Glenn Oleon and family BOTTOM ROW: Recipients of the Wiley W. Manuel Certificate for Pro Bono Legal Services with the Chief Justice
T HE M AGAZINE
A LAMEDA C OUNTY B AR A SSOCIATION
Communications Advisory Committee
ALAMEDA COUNTY BAR ASSOCIATION
Tim Hallahan (chair), Dennis Chin (vice-chair), James Brighton, Mark Estes, Pamela Jester, Daniela Lungu, Erin Scott, Randy Wilson, Ann Wassam, Shannon Goecke (editor-in-chief), Kaysi Holman
70 Washington Street, Suite 200 Oakland, California 94607 510.302.ACBA (2222) 510.452.2224 fax www.acbanet.org
Contributing Authors Jatrine Bentsi-Enchill, Denise Chambliss, Shannon Goecke, Tim Hallahan, Evelyn Herrera, Kaysi Holman, Elizabeth Hom, Sean Kaneshiro, Early Langley, Holly Moose, Wayne S. Nishioka, Kandis A. Westmore
Editorial, Advertising and Other Inquiries Please contact editor-in-chief Shannon Goecke at 510.302.2215 or email@example.com. THE BULLETIN (USPS 0947-620) is published four times per year by the Alameda County Bar Association and is available for $50 per year. Periodical postage paid in Oakland, California, and additional locations. POSTMASTER: Send address changes to Alameda County Bar Association, 70 Washington Street, Suite 200, Oakland, CA 94607. Average monthly circulation: 2,200. Copyright 2011 by the Alameda County Bar Association. All rights reserved. Neither the ACBA nor BULLETIN staff assumes responsibility for statements or expressions of opinion by contributors to this publication.
AIKEN WELCH COURT REPORTERS • 35 Local Reporters • Nationwide Scheduling 1 Kaiser Plaza, Suite 505 Oakland, CA 94612 180 Montgomery Street Suite 1520 San Francisco, CA 94104 San Jose Los Angeles
The Alameda County Bar Association (ACBA) was established in 1877 and has a membership of 2,000 attorneys, judges, law students, and other legal professionals. The ACBA administers numerous programs and activities to benefit attorneys and the community. Our mission is to promote professional development, ethics, and civility in the practice of law; to promote diversity in the legal community; to promote civil rights and the fair and equitable administration of justice; to improve access to legal services for residents of Alameda County; and to promote communication and cooperation among the bench, the bar and the community.
ACBA OFFICERS AND DIRECTORS Wayne S. Nishioka, President Sally J. Elkington, President-Elect Kandis A. Westmore, Vice-President Gregory D. Brown, Past-President William E. Adams, Denise Chambliss, Dennis Chin, Jason Clay, Robert Frassetto, Rowena Gargalicana, Eric Handler, Richard J. Lee, Toni MimsCochran, Anna L. Nguyen, Cheryl Poncini, Nedra A. Shawler, Ruben Sundeen, Stephanie Sato (Barristers)
ADMINISTRATION Ann Wassam Executive Director 510.302.2208 firstname.lastname@example.org Shannon Goecke Communications Administrator 510.302.2215 email@example.com
4 THE BULLETIN Summer 2011
Susan Kleebauer Managing Attorney 510.302.2202 firstname.lastname@example.org
VOLUNTEER LEGAL SERVICES CORPORATION (VLSC)
Kaysi Holman Senior Membership Specialist 510.302.2200 email@example.com
Elizabeth Hom Managing Attorney 510.302.2216 firstname.lastname@example.org
Amanda Picetti Accountant 510.302.2207 email@example.com
Alessia Cook Clinics Coordinator 510.302.2218 firstname.lastname@example.org
LAWYER REFERRAL SERVICE (LRS) & FEE ARBITRATION
CRIMINAL COURT APPOINTED ATTORNEYS PROGRAM (CAAP)
Hadassah Hayashi Program Administrator 510.302.2210 email@example.com
PRESIDENT’S MESSAGE Volunteering...to help yourself Volunteering to help others is an essential vitamin for the soul to thrive. But (isn’t there always a “but”), taking care of oneself and family first is a fundamental need for physical as well as psychological survival. So how do these two ingredients of life fold in together? The physical part—food, clothing, and shelter—is usually under control for most ACBA members and their families. The question of one’s psychological well being is often more pertinent. Lawyers, like everyone else, strive to feel secure. What it takes to fulfill this feeling of security is where it gets personal. Certainly, the accumulation of enough material wealth to take care of basic needs is a standard we can all agree on. But then you run into a broad range of personal interpretations of what is meant by basic food, clothing, and shelter. Are we talking about enough calories per day to live, or three square meals a day, or at least one upscale meal at a restaurant a week? And, remember, at this point we’re only talking about needs and haven’t gotten to a person’s strong wants and desires that border on being a need, such as membership in a health club or the family’s second car. The level of psychological security each of us needs is dictated by our personalities and life perspectives. Some people need five extra packages of toilet paper in reserve to feel comfortable and some only need to have one extra package. How you feel about security is within a person’s control. Psychologists have a thing they call “negativity bias”—the innate tendency to dwell on problems, annoyances, and injustices rather than on the bright side. We can learn to limit this tendency and to look for the silver lining in all events that happen to us. We can learn to be more optimistic. As we become more optimistic, we free ourselves of excessive insecurities and see the multitude of benefits and good fortune that are a part of our daily lives. Thankful for our homes in the Bay Area, for those caring looks once in a
while from our children or friends, and for our jobs even though they are imperfect at times. This acknowledgment of the good things in our lives—this sense of gratitude—makes us more able to expand our personal definitions of who we are and to broaden our life perspective. The opening of this door gives us a view into the needs of others and engenders a desire to help them.
WAYNE S. NISHIOKA
An attitude of gratitude can improve psychological, emotional and physical wellbeing. According to an article in the Wall Street Journal, a growing body of research over the past decade suggests that adults who frequently feel grateful have more energy, social connections and happiness than those who do not. They’re also less likely to be depressed, envious, and greedy. They sleep more soundly and have greater resistance to viral infections. It goes without saying that a lawyer with these benefits will perform well on an everyday basis and emanate that natural confidence that comforts existing clients and attracts new ones. Researchers have also found that gratitude brings similar benefits to children —they tend to be less materialistic, earn better grades, set higher goals, complain of fewer headaches and stomach aches, and feel more satisfied with their friends, families, and schools. In other words, by being more grateful yourself, you can be a better role model for your children. By being grateful, broadening our sense of self, and wanting to help others, one is poised to experience life more comprehensively. One of the best ways to satisfy the desire to help others is to volunteer for causes that are important to you. Like access to justice. Lawyers don’t have to look far before seeing the glaring number of people who are suffering from legal problems but can’t afford the fees of a lawyer. By volunteering, you may find that your personal satisfaction and sense of purpose and meaningfulness is much greater than if you simply did your job and went home. By helping others work through their problems, you refresh
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 5
PRESIDENT’S MESSAGE your gratitude for the good things in your life, and the positive cycle continues to expand. Some of the newest evidence suggests that people who focus on the type of well-being that comes from engaging in meaningful activity (“eudaimonic well-being”) are more likely to remain cognitively intact, have better mental health and even live longer that people who focus on “hedonic wellbeing” such as the pleasure that comes from a good meal, an entertaining movie, or an important win for one’s sports team. A study at the Alzheimer’s Disease Center at Rush University Medical Center in Chicago showed that the subjects reporting
a lesser sense of meaning in life were more than twice as likely to develop Alzheimer’s disease compared with those reporting greater meaning in life. In a separate analysis of the same group of subjects over a five-year period, researchers found that those with greater meaning in life were significantly less likely to die—by some 57%—than those with a low sense of meaning in life. Volunteering may indeed help you to live longer and to be personally healthier and happier, but of equal importance is the fact that it has the inevitable benefit of bestowing grace upon another person.
ACBA PRESIDENT WAYNE S. NISHIOKA has a general practice in Oakland with a focus on public employment law. Having worked for federal, county, and municipal entities, he has been involved in a variety of legal areas and has litigated before the State Courts, Court of Appeals, and the California Public Utilities Commission. He is a graduate of the University of California, Davis Law School.
6 THE BULLETIN Summer 2011
LITIGATION TIPS Rick Seltzer—Trial lawyer, mensch Mensch (Yiddish): a person of integrity and honor…someone to admire or emulate, someone of noble character…a stand-up guy. –Wikipedia Rick Seltzer, one of the East Bay’s most successful trial lawyers, passed away early this year. Rick grew up in Chicago, received his BA from University of Iowa and then his JD from Northwestern University School of Law, graduating summa cum laude. A superior student, he was also an excellent baseball and softball player—so good, he got an unprecedented two hits off Eddie Feigner of the fabled King and His Court.* He practiced as a plaintiff’s trial attorney for more than 40 years, trying and winning numerous seven-figure verdicts in cases involving insurance bad faith, employment, medical malpractice, product liability, and especially wrongful death. Despite his success, he never tooted his own horn. Gary Gwilliam calls Rick “the ultimate lawyer’s lawyer”—he did it because he loved it, not for acclaim. Rick specialized in representing the underdog. His clients included illegal immigrant families, prisoners, abused wives, and gang members. He loved to sue those he termed “bullies.” Despite representing the weak and unpopular against the wealthy and powerful, Rick had remarkable success. Here are a few reasons why.
Credibility If you’ve been reading my articles over the past years, you know that one of my main trial advocacy themes is credibility. Rick was the person in the courtroom the judge and jury could always turn to for the truth. Why? First, he didn’t lie or guess or exaggerate. He was so prepared that the judge could rely on his statement of the law, and the jury on his version of the facts. Second, he didn’t put on airs, pretending to fit a Hollywood or TV image of a trial lawyer. Instead he projected integrity, effectively using a natural, conversational style and self-deprecating humor. What you saw was what you got. Third, he was organized and efficient. He didn’t shuffle through his papers
when impeaching a witness or offering an exhibit. He didn’t waste anyone’s time.
In limine motions Focusing on in limine motions is a great way to establish credibility and have a major effect in shaping the evidence the jury will hear. To that end, Rick had a good eye for what facts were relevant from both a logical and an emotional standpoint. For example, in a premises liability wrongful death case involving a youngster killed in a social club that served alcohol to teenagers, Rick was able to exclude the victim’s gang membership (emotionally powerful but logically tangential). Conversely, his opponent didn’t think to move to exclude two facts that were quite significant to the jury, though of marginal logical relevance: 1) the social club owner lied about owning the club when first interviewed by the police, and 2) the club was caught serving alcohol to groups of minors only one week after the death. This behavior made the club owner look sleazy and irresponsible, but had nothing to do with the incident itself.
TIM H. HALLAHAN
Opening statements Rick felt that his opening statement was the most important part of his case. He spent weeks preparing and rehearsing. He knew the narrative he provided in his opening would guide the jurors throughout the trial, and would give them what he termed “a rooting interest” in his client to the very end. He concentrated on telling the jury the story of his client and what happened, using facts instead of opinions and arguments. Thoroughly rehearsed, he could talk to the jury without notes, demonstrating he knew everything there was to know.
Listening and flexibility Thorough preparation provides the relaxed state of mind necessary to listen and respond. In one of Rick’s cases, the judge stressed that she would not allow any arguing in opening statements. The attorneys were only to state facts that would be testified to by witnesses or contained in admissible documents. Rick was able to comply because he knew his case well and knew how to do a permissible opening statement, using facts ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 7
LITIGATION TIPS not conclusions. His opponent, following the normal, sloppy practice of arguing through his opening statement, couldn’t respond properly to the judge’s frequent interruptions: “Counsel, which witness will say that?” In an insurance badfaith case, the defendant’s claims adjustor testified he had authorized a minimal payment to the divorced parents of a dead teenager because “after all, it isn’t like they’re a normal family.” Rick used that phrase over and over during cross examination and his closing argument.
Analogy In the mid-1980s, when insurance carriers were offering only $50,000 for the death of a minor—because children cost money to raise and did not earn money—Rick was the first to gain verdicts in the millions based purely on noneconomic damages, such as loss of care, comfort, and society. He believed that the greatest tragedy in life was the death of a family member, regardless of earning capacity, and he was able to communicate that belief. One way was his use of analogies. “What is the monetary value of the loss of Mrs. Simon’s son to her? Obviously I can’t give you an exact figure. But think of what people will pay for a race horse, up to 70
million dollars. I’m not suggesting you award 70 million dollars, but certainly Mrs. Simon’s son was worth as much to her as a race horse.”
Sometimes it is a meritocracy It’s sobering for new lawyers to find out that being right on the law and facts may not be determinative if you represent the wrong client. In other words, real life, unlike school, isn’t a meritocracy. Rick Seltzer’s career inspires us because he showed that working hard, being honest, and trying cases the way they should be tried can work. He was a mensch—as important to his judges and juries as it was to his clients, friends, and family. And almost as important to Rick as getting those two hits off the King and His Court. * “The King and His Court” consists of pitcher Eddie Feigner and only three fielders because Eddie is such a dominating pitcher that he only needs three. The King and His Court have barnstormed through 4,000 cities in 100 countries, rarely giving up more than as much as a hit a game to the opposing team.
TIM HALLAHAN is Director of the Advocacy Skills Program at Stanford Law School, an education attorney with the Administrative Office of the Courts, a national CLE speaker, and co-founder of the Hecht Training Institute, a litigation skills training firm. He is also Chair of the ACBA Communications Advisory Committee. Contact him at firstname.lastname@example.org.
8 THE BULLETIN Summer 2011
ALAMEDA COUNTY LAW LIBRARY Going solo without going it alone: Resources for new solo practitioners at the Law Library The American Bar Association recently issued a paper, “The Value Proposition of Attending Law School,” advising prospective law students to think twice before enrolling. When the ABA cautions potential students about the financial difficulties that new attorneys can face, you know the market can’t be very strong. But you don’t need to take the ABA’s word for it—just ask any recent law school graduate. At the Alameda County Law Library, we see many of these young lawyers. And increasingly we’re learning that many of them are going solo with little or no law firm experience. As these young solo practitioners have discovered, it takes more than three years of law school education and a bar card to have a successful practice—it also requires the ability to stay competitive in this challenging market. If you are a new attorney in the process of hanging out your shingle, the Alameda County Law Library has resources to help you succeed in your practice.
Managing your law practice Being a solo practitioner involves more than simply representing clients. It also means running a business. Where larger firms might have a few individuals tasked with developing the business while others handle day-to-day operations such as billing and office technology, a solo will be responsible for every aspect of his or her practice. Given that law schools rarely offer any sort of education in law firm management, such practical concerns of running a business might be beyond the understanding of many new attorneys. To assist practitioners in these aspects of legal practice, the publishing arms of organizations such as the ABA, the Practicing Law Institute, and the National Institute for Trial Advocacy have released numerous titles on a variety of topics, including: •
Law Practice Management: Advice on running a successful law practice, covering everything from naming your firm and
creating a business plan to leasing office space and furnishing it. •
Marketing and client relations: Tips on how to advertise, network and use technology to attract and retain clients.
Finance: Advice on billing, budgeting, debt collection, fee arrangements, taxes, trust accounts, and even planning for retirement.
Technology: Instruction on using software for drafting documents, preparing presentations, calendaring, managing client files, billing, communicating, and other things you didn’t even know your computer could do.
SEAN KANESHIRO REFERENCE LIBRARIAN
Many of these titles are written with solos in mind. To accommodate the growing demand, the Alameda County Law Library has been expanding its collection of books related to opening and running a practice, and many of these are on display at the desk to the right as one enters the library.
Practicing Law For new attorneys, the law firm experience offers certain advantages, such as access to more experienced attorneys who can share practice tips. The new associate who is unsure of a particular procedure or rule might simply ask a more experienced attorney rather than search for it alone. In addition, many firms have knowledge management systems where the collective work product of numerous attorneys is shared. Thus, a new associate can reuse portions of documents that had been drafted by others in the firm rather than writing from scratch. Solos will typically not have access to these reources. While the Law Library may not be able to offer mentors or access to knowledge management systems, it can provide the next best thing. The Library has numerous practice guides from West, LexisNexis, Continuing Education of the Bar, and others. These guides, written by judges ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 9
ALAMEDA COUNTY LAW LIBRARY and other experts in their fields, offer straightforward information about procedures and summaries of relevant statutes and case law. They are updated frequently, ensuring that the substantive and procedural law is current. For instance, the Rutter Group’s California Practice Guide: Civil Procedure before Trial, by the late Judges Robert Weil and Ira Brown, has been the go-to for answers concerning pre-trial civil practice for decades. This set is where many more experienced attorneys would have learned the ropes themselves. In recent years, there has been a proliferation of excellent guides covering increasingly narrow practice areas, such as child custody litigation, or particular procedures, such as moving for summary judgment. Volumes often offer valuable tools such as checklists to ensure that procedural steps aren’t missed, and practice tips and warnings so you aren’t caught off guard. Many even have sample text for pleadings or motions that can be copied and tailored to fit individual needs.
Staying Competitive Many new solo practitioners find that in order to attract clients, they must keep their fees low. One way to help accomplish this is by not having to pass the cost of access to expensive legal databases onto one’s clients. The Law Library can help by providing free access to Westlaw, LexisNexis, and other databases. From our research terminals, cases can be retrieved and shepardized on either Westlaw or LexisNexis. Retrieved cases can be saved to a flash drive or emailed to oneself from LexisNexis. In addition, the Library has numerous secondary practice materials available on the research terminals. The Library provides access to select databases on Westlaw and LexisNexis, and others such as OnLaw, the electronic counterpart to the CEB publications. Many of the sample documents published in the practice guides will be available electronically on these databases. These forms can be opened online and edited, saving the user from having to retype the entire document. Costs can also be lowered by reducing the need to build a personal library of print resources in one’s own office. The majority of titles at the Alameda County Law Library can be checked out by attorneys for a onetime fee of $5. This includes most of the titles on law office management, and many practice guides and primary authorities. So if you are a new (or not-so-new) attorney who is considering going solo, stop by the Alameda County Law Library to see how we can help you to build a successful practice. SEAN KANESHIRO is a Reference Librarian at the Alameda County Law Library. For information about library services, please visit www.acgov.org/law.
10 THE BULLETIN Summer 2011
The Volunteer Legal Services Corporation and Bay Area Legal Aid invite you to
Sixth Annual Family Law Training: The Basics Join us as we present our annual comprehensive family law training for new attorneys and attorneys new to family law. Learn from seasoned attorneys and the family law bench about how to handle a family law case from initial client intake through judgment. Six Nights in October 2o11: Wednesdays and Thursdays, October 5-6, 12-13, and 19-20 Registration: 5:00 P.M. | Program: 5:30-8:00 P.M. ACBA Conference Room 70 Washington Street, Suite 200, Oakland Earn 12 hours of MCLE, including one hour of ethics credit. Registrants must pay a small registration fee (to offset the cost of training materials and refreshments) and commit to take on two pro bono cases within the next year (one from VLSC and one from BayLegal). More information will be available soon. Watch your email or visit our website at acbanet.org.
justice for all: celebrating pro bono
(1) Judge Stephen Pulido and Nikki Clark (2) James Hastings, Aaron Waxman, and Rick Waxman (3) the silent auction (4) MaryLou Karp, Vince Sood, Justice Cantil-Sakuye, and Michael Johnson (5) Steve Blitch and Steve Nissen (6) Joe Dunn (7) Judge Jon Tigar and Chief Justice Cantil-Sakuye
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 11
he ACBA Volunteer Legal Services Corporation held its first formal volunteer recogntion banquet, Justice for All: Celebrating Pro Bono, in 2006. Our keynote speaker that year was Chief Justice Ronald M. George of the Supreme Court of California. Five years later, we had the honor of hosting our state’s newest Chief Justice, and the first Asian American to hold that position, Chief Justice Tani Cantil-Sakauye. The Chief Justice commended VLSC’s volunteers, and noted that their contributions have helped influence positive changes at the state level, including Title 10 of the California Rules of Court, which established, in 2008, that all courthouses must have self-help centers to assist self-represented litigants. “The need is critical,” said the Chief Justice, “but the potential for good in your work is profound.” Former State Senator Joe Dunn, Executive Director of the State Bar of California, also helped distribute the Wiley W. Manuel Certificates for Pro Bono Legal Service. In additon to recognizing our most stellar volunteers, who are profiled on the pages to follow, we enjoyed a fine dinner, a lively silent auction, and, best of all, the company of friends. Miss the party? Become a VLSC volunteer, and we’ll see you next May!
VERY SPECIAL GUEST: CHIEF JUSTICE TANI CANTIL-SAKAUYE was nominated by Governor Arnold Schwarzenegger in June 2010 to succeed retiring Chief Justice Ronald M. George; the California Commission on Judicial Appointments unanimously approved her nomination in August 2010. She served as an Associate Justice of the California Third District Court of Appeal since 2005. Previously, she served as a Sacramento Superior Court judge from 1997 until 2005, presiding over both criminal and civil assignments. She also created, in 1997, the first court in Sacramento dedicated solely to domestic violence issues. Before being elevated to the Superior Court, she was a Municipal Court Judge in Sacramento from 1990 until 1997. A graduate of the University of California Davis, Martin Luther King, Jr. School of Law, she began her legal career as a deputy district attorney in the Sacramento District Attorney’s Office, prosecuting a variety of legal offenses.
12 THE BULLETIN Summer 2011
PHOTOS OPPOSITE PAGE (1) Matthew Quiring (seated left) and family (2) Commissioner Glenn Oleon and Chief Justice Cantil-Sakuye (3) Carolyn Henel and Margaret Roisman (4) Rick Waxman, Larry Lulofs, and Jonathan Wong (5) Chief Justice CantilSakuye and Nicolas Machado (4) Denise Chambliss and Eric Handler (5) Rhoda Hing, Judge Stuart Hing, and Judge Yvonne Gonzalez-Rogers
THIS PAGE (1) Jayne Williams, Luz Buitrago, and Neli Palma (2) Elizabeth Hom, Chief Justice Cantil-Sakuye, and Ann Wassam (3) Sherry Hu (4) Bette Epstein and Justice Henry Needham (5) Al Clark and David Larosa (6) Eric Behrens and Philip Behrens (7) Kandis Westmore and Nedra Shawler (8) Judges Tara Desautels and Winifred Smith (9) Jonathan Wong and Patrick Wong ALL PHOTOS BY ACBA STAFF
VERY SPECIAL GUEST: JOE DUNN is currently executive director of the State Bar of California. A veteran plaintiff’s attorney, Mr. Dunn was elected to the California State Senate in 1998, representing California’s 34th Senate District in central Orange County. After leaving office in 2006, he was appointed Chief Executive Officer and Executive Director of the California Medical Association. He left that position in 2009 to found the Senators Firm in Newport Beach, with fellow lawyer-senator Martha Escutia. He was selected as Executive Director of the State Bar of California in September 2010 after a nationwide search.
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 13
pro bono honor roll
LARRY LULOFS - Pro Bono Leader Larry Lulofs is a partner at the firm of Morton & Lulofs, LLP, where his practice focuses on insurance coverage, personal injury and wrongful death, construction defect litigation, real estate, business law, estate planning, immigration, and public entity defense. Mr. Lulofs has volunteered for VLSC for several years. He has played an active role at the Family Law Day of Court Clinics in Oakland and Hayward, as well as the VLSC Dissolution Clinic in Oakland. He has also graciously accepted numerous complex pro bono cases; in fact, he is admired by his peers for his willingness to take on even the most challenging cases. This generosity and patience earned him VLSC’s Volunteer of the Year award for his pro bono activities in 2007. In a smaller law firm such as Morton & Lulofs, LLP, it is especially important to keep an eye on the bottom line—every hour a firm partner spends doing pro bono is an hour that can’t be spent on paying clients. However, Mr. Lulofs has never wavered in his commitment to pro bono. In fact, he even influenced his firm to become a founding member of VLSC’s Guardians of Justice, in which firms make a significant long-term financial commitment to support VLSC. The firm was recognized with the ACBA’s Distinguished Service Award for a Law Firm in 2009. Mr. Lulofs joined the VLSC Board of Directors in 2006, and has been serving as its president since 2010. He has continued to be an active VLSC volunteer on top of his VLSC governance and fundraising commitments. This year, we honor Larry Lulofs with the Pro Bono Leadership Award for his enthusiasm, leadership, and fundraising efforts in promoting pro bono legal services and access to justice.
14 THE BULLETIN Summer 2011
COMMISSIONER GLENN OLEON Mentor of the Year Commissioner Glenn Oleon was appointed Commissioner of the Superior Court of California, County of Alameda, in 2003 and is currently assigned to family law court in Alameda. Prior to his appointment, he was a solo practitioner in Oakland. Every October, VLSC and Bay Area Legal Aid partner to offer a comprehensive family law training; Commissioner Oleon has participated as a trainer in this program since its inception in 2006. Last year, VLSC Mentor of the Year Nikki Clark credited Commissioner Oleon with having been her mentor when she herself was a new VLSC volunteer, and she had the honor of introducing him at Justice for All. “He helped me be a better lawyer, and gave me a profound sense of what it means to give back to the community,” said Ms. Clark.
MATTHEW QUIRING Volunteer of the Year Matthew Quiring was admitted to the State Bar of California in 2008 and is currently in private practice in Berkeley. He has been volunteering faithfully every week at VLSC’s Low-Income Landlord Clinic, and has even assumed an informal leadership role, helping to train newer volunteers and more recent graduates. Alessia Cook, who is responsible for coordinating VLSC’s 28 monthly clinics, said, “I have seen Matthew be compassionate, yet capable of guiding clients toward the legal issues he can address.”
The Alameda County Bar Association’s Volunteer Legal Services Corporation
Cordinally invites you to
Dine Around for
Justice A gastronomical fundraising event!
Every Thursday in August, you can support pro bono legal services while dining out at some of the East Bay’s finest restaurants as Dine Around for Justice returns for its fifth year. Local eateries partner with VLSC, agreeing to donate 15% of their evening food and beverage revenue on a specific evening to help provide pro bono legal assistance to low-income people in Alameda County. Please visit acbanet.org to see this year’s participating restaurants!
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 15
Wiley W. Manuel Awards for
PRO BONO LEGAL SERVICE Named in honor of a Justice to the Supreme Court of California who promoted public service work by attorneys, the State Bar of California Wiley W. Manuel Award for Pro Bono Legal Service recognizes attorneys, law students, and paralegals who provide a minimum of 50 hours of pro bono services in the course of one year. ADAM ARANT practices criminal defense, estate planning, probate and general civil litigation in Fremont. Adam spent 88 hours last year on three cases: two cases through VLSC, a family law case and a trust and estate case, and one through Bay Area Legal Aid, assisting a domestic violence survivor.
PHILLIP CAMPBELL, founder of Campbell
PHILIP BATCHELDER is an attorney with Mitchell & Courts, LLP, focusing on trusts, estate planning, conservatorship, guardianship, and elder care matters. He logged more than 58 volunteer hours last year, volunteering at the VLSC Guardianship Clinic and through Lawyers in the Library. Philip also took on a pro bono case, helping a woman and her husband gain guardianship over her brothers after their father passed away and their mother was incarcerated.
NIKKI CLARK is a solo practitioner whose practice is dedicated to family law and mediation. Nikki also serves as appointed counsel to minors in family law cases. Nikki volunteers twice a month at the Family Law Day-of-Court Clinic in Oakland and Hayward. She also mentors individual attorneys on their pro bono family law cases, and regularly leads the Family Law Mentor Meetings. In 2010, Nikki’s volunteered for more than 106 hours and was the 2009 Mentor of the Year.
Law Offices, a trusts and estates firm in Oakland, has been one of the lead volunteers for the Guardianship Clinic for a number of years. He provides technical assistance and trains new volunteers at the clinic, dedicating more than 53 hours last year.
MICHAEL BRODIE is an emeritus attorney who volunteers with Family Law Day of Court Assistance Clinic, and has taken a family law case where he is assisting a client with completing a dissolution, and custody, visitation and support of the client’s child. This is Mike’s fourth pro bono case with VLSC. In 2010, Mike logged more than 150 pro bono hours.
16 THE BULLETIN Summer 2011
BRIAN DOUCETTE is an attorney at Bialson Bergen & Schwab in Palo Alto, where his practice is focused on transactional business matters, commercial law, creditors’ rights, and creditor-related bankruptcy. He spent 91 hours last year on five different pro bono cases. Brian usually takes debt collection defense and bankruptcy cases, but last year he also took two cases assisting nonprofit organizations. He was also last year’s Volunteer of the Year. JOSEPH FENTON is a third-year law student at Golden Gate University. He has been volunteering with VLSC for two years now, attending every Guardianship Clinic. In 2010, Joe logged 68 hours at the Guardianship Clinic and he has continued to volunteer every month in 2011.
JACQUELINE JULIEN is a paralegal who has PATRICIA COONEY spent more than 150 hours on a pro bono case assisting a disabled woman with a dissolution and support case. Patricia has been an attorney for 26 years and has practiced criminal defense, criminal appellate defense, and plaintiffs personal injury law.
been volunteering for several years at the VLSC Bankruptcy and Debt Collection Defense Clinics. She volunteered for more than 50 hours in 2010 at the clinics, providing referrals and information and assisting clients in completing forms and letters to creditors.
KENNEDY KOBLIN is a solo practitioner, practicing family, criminal and patent law. He volunteers with the Family Law Day of Court Clinic in Hayward and has taken a family law case assisting a father with three young children finalize his dissolution and enforce custody and visitation orders. He logged more than 52 volunteer hours last year. MICHAEL MAKDISI is a solo practitioner in Oakland, litigating various civil matters, including landlord-tenant, employment discrimination, and personal injury matters. He volunteers at the Low-Income Landlord Eviction Assistance Clinic and has taken on a complex eviction matter, representing an elderly man whose tenant was allgegedly abusive to the client and engaged in illegal drug activity on the property. Michael provided more than 100 hours of pro bono service in 2010. SUMMER NASTICH is an attorney at Smith Trager, LLP, specializing in environmental law and litigation. In 2010, Summer provided more than 105 hours assisting two clients, defending one client from a creditor and helping a homeless man with mental disabilities resolve a child support matter. MATTHEW QUIRING, a solo practitioner in Berkeley, spent more than 90 hours volunteering at the Low-Income Landlord
Eviction Assistance Clinic in 2010, assisting landlords with little or no income. Matthew volunteers every week at the clinic and is this yearâ€™s Volunteer of the Year.
DAVID ROTH, a real estate attorney with more than 30 years of experience, volunteers with the Lawyers in the Library program. He has generously covered shifts when other volunteers had conflicts, in addition to his own bimonthly shifts.
ROBERTO SARMIENTO is currently an attorney at the Public Law Center in Santa Ana, California. Before he relocated to Southern California, he spent 50 hours in 2010 working on a complex custody and dissolution case for a domestic violence victim. Roberto credits the training and experience he received from VLSC with helping him with his current work.
JULIE ROCHE SCHRAM is a solo practitioner in Hayward whose practice is focused on family law. She frequently volunteers at the Hayward Family Law Day of Court Clinic and the Dissolution Clinic, and last year, she also assisted a father in establishing a custody and visitation order after he had been prevented from seeing his son for more than a year. Julie spent more than 120 hours volunteering with VLSC last year.
TUSHAR SHAH, corporate counsel with Novellus Systems, volunteers at both the Family Law Day of Court Clinic and Low-Income Landlord Eviction Assistance Clinic. Tushar also handled a complex family law case that involved dissolution, custody, visitation and support of two children and business valuation. Tushar provided more than 150 hours of pro bono service in 2010. He was the 2008 VLSC Volunteer of the Year. SUZANNE WILSON is a family law and criminal defense attorney based in Oakland. She devoted 98 hours to pro bono service last year, volunteering regularly at the Alameda Family Law Day of Court Clinic and the Guardianship Clinic, as well as taking a family law case for a father with child support and custody issues.
In 2010, 450 VLSC volunteers contributed more than 2,800 pro bono hoursâ€” the equivalent of more than $800,000 worth of legal services.
PHOTOS NOT AVAILABLE: MICHAEL BRODIE PATRICA COONEY JACQUELINE JULIEN ROBERTO SARMIENTO
JULIE ROCHE SCHRAM
SUZANNE WILSON ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 17
Patti Abramson * Joel Ackerman * Vincent Adams * Elina Agnoli * Amy Ahlers * Suzanne Ahlport * Nabiel Ahmed * Chris Alberding * Eugenia Amador * Erene Anastopoulos * Elizabeth Andersen * Eden Anderson * Kevin Anderson * Swapna Anthoor * Adam Arant * Dianne Archer * Barbara Arnold * Jillian Atuegbu * Erika Avina * Neil Babra * Juniper Bacon * Vonnah Bagner * Robert Baizer * Jeff Balsz * Jennifer Banker * Linda Barrera * Robert Bartlett * Philip Batchelder * Monica Bathija * Julie Batz * Adrionne Beasley * Eric Behrens * Jocelyn Belloni * William Belport * David Benoun * Margaret Berciano * Karen Berntson * LeAnn Bischoff * Stephanie Bolden * Emily Bolt * Andrew Bota * Emily Brand * Nancy Brandt * Sharon Braz * Kelly Bresso * Michael Brodie * Craig Broscow * Susanne Brown * Mary Brutocao * Honglei Bu * Lysle Buchbinder * Marcia Burke * Sivan Butler-Rotholz * Ilse Butterfield * Rebecca Cachia-Riedl * Roseanne Calbo-Jackson * Priscilla Camp * Phillip Campbell * Jacqueline Canlas-Laflam * Joshua Caplan * Barton Carter * J. Del Catancio * Betty Cavanaugh * Sharon Ceasar * Heather Chang * Robert Chang * Stacey Chau * Paul Chavez * Joseph Chianese * Dennis Chin * Cheong Chuah * John Church * Carl Ciochon * Elizabeth Clark * Jason Clark * Nikki Clark * Ananda Clarke * Jessica Cochran * Holly Cole * John Comerford * Alana Conner * Michael Connich * Patricia Cooney * Salena Copeland * Sarah Cottingham * Kathleen Courts * Sabina Crocette * Douglas Crosby * Alexander Anthony Cross * Candace Dabney-Smith * Megan Dailey * Jaffe Dania * Anne Davies * Rebecca Davis * Yvette Davis * Anjana Dayananthan * Kathleen Day-Seiter * Jayne De Young * Christina Deadwiler * Derek Deavenport * Jennifer DeLaCampa * Gregory Demirchyan * Mark Demming * George Derieg * Rhial Devine * Hien Doan * Brian Doucette * Deborah Dubroff * Tavy Alice Dumont * Roderic Duncan * Bruce Eads * Lisa Edgar-Dickman * Aaron Ehrlich * Mark Eisenberg * Sally Elkington * Jason Elter * Cindy Elwell * Lilian Epstein * Paul Epstein * Sarah Fairchild * Cecilia Faissol * Alexandria Fearn * Joseph Fenton * Joseph Ferrucci * Doris Figman * Robert Finkle * Jessica Florey * Lina Foltz * Shane Ford * Mona FosterWhite * Marva Furmidge * Manpreet Gahra * Guido Gaiteri * Yogeeta Gamper * Rowena Gargalicana * Janet Gawthrop * Sharron Gelobter * Taylor Genovese * Deborah Gettleman * Ruth Gewing-Mullins * Phillip Ghaderi * Donna Gibbs * Rachel Ginsburg * William Glenn * Michelle Glover * Sharon Godbolt * Andrea Goldman * Paul Goldman * Tracy Gondo * Bob Goodman * Teresa Green * Tracy Green * Jean Greenbaum * Chaman Grewal * Chanmeet Grewal * Gagan Grewal * David Gross * Darryl Gruen * Mary Gubatina * Alice Hall * Randolph Hall * Ryan Hall * Caroline Ham * Paul Ham * Eric Handler * Shumsha Hanif-Cruz * Amanda Hassid * Daniel Hegwer * Mats Hellsten * Curt Hennecke * Evelyn Herrera * Eve Hershcopf * C. Lee Hewitt * Deborah Hewitt * Noel Hibbard * David Hillis * Jennifer Hilton * Bradford Hodach * Beth Hodess * Stesha Hodges * Daniel Hodsdon * David Hofheimer * Edward Holtz * Katharine Hooker * Barbara Horn * Constance Hosemann * Heidi Hudson * Michael Hughes * Jessica Hunter * Amanda Inocencio * Sharon Isenhour * Brian Ito * Julie James * Amanda Jarratt * Lorna Jaynes * Roberto Jimenez * Wenlei Johnson * Tiffanie Jower * Jacqueline Julien * Samir Kalra * Jane Kaplan * Jeremy Katz * Tracey Kaufmann * Arinder Kaur * T. Katuri Kaye * Man-Li Kelly * Jennifer Kern * Michael Kerner * Maureen Kildee * Jenny Kim * Irene Lawton Kisch * David Kleczek * Annette Knox * Kennedy Koblin * Laura Koch * Jonathan Koltz * Neal Konami * Paige Kremser-Stenrud * Chris Kuhner * Johanna Kwasniewski * Phong La * Rick Lane * Melanie Larzul * Nancy Lawlor * Elaine Leadlove-Plant * Clarence Lee * Jennifer Lee * May Lee * Milan Lee * Richard Lee * Michael Lennon * Duane Leonard * Sarah Leverett * Henry Lewis * Sophia Li * Neil Libbe * Peter Liederman * Kitty Lin * David Little * Bethel Litwin * Pelayo Llamas * Stan Lockhart * Bella Loo * Guy Louie * Leora Lubliner * Lynette Luebker * Larry Lulofs * Tecla Lunak * David Lunas * Diane Luong * Deanna Lyon * Rosanne Mah * Michael Makdisi * Arabelle Malinis * Marianne Malveaux * Rosylen Mangohig * Anne Mania * Claire Mao * Jon Marlowe * Caelo Marroquin * Joy Marshall * Mariam Marshall * Rodman Martin * Deborah Marx * Isabelle McAndrews * Stacy McCorquodale * Ivy McCray * Rachel McDonald * Daniel McKenzie * Todd McKenzie * Al McLeod * Mary Ann Meany * Wendy Meckes * Michael Medina * Jo Custer Melnyk * Randy Meng * Bernardo Merino * Yelda Mesbah Bartlett * Brian Messner * Marie Meth * Dylan Miles * Oktober Miller * Doris Mitchell * Gail Mitchell * Ayako Miyashita * Joel Monkarsh * Marlon Monroe * Lauren Montana * Luis Montes * Katherine Montgomery * John Morgan * Safiya Morgan * Mark Morodomi * Howard Morrison * Scott Mossman * Carrie Moulton * Angel Muhammad * Suzanne Mulkern * Lisi Munayco * Jaci Murray * Elene Mylordos * Patrick Nakao * Summer Nastich * Travis Neal * Marcel Neumann * Ann Nhieu Nguyen * Duyen Nguyen * Peggy Burnet Nicholson * Heba Nimr * N. Maxwell Njelita * Michell Nunez * Ifeanyichukwu Nwawe * Eric Nyberg * Mary Oaklund * Unwam Oduok * Doron Ohel * Masako Oishi * Phyllis Olin * Nathan Oliver * Matthew Oliveri * David Olsen * Shawn Olson Brown * Ifeoma Onuoha * Wykeisha Orr * Betty Orvell * Autumn Paine * Jack Pajoohandeh * Neli Palma * Meera Parikh * Stephanie Parks Penrod * Sara Pasquinelli * Carla Passero * Chrstopher Paxton * Robert Peacock * Denise Perelli-Minetti * Liza Perena * Eucaris Tatiana Perez-Valero * Sherry Peterson * Lita Pettus-Dotson * Lynn Phan * David Pivtorak * James Pixton * Cynthia Podren * Mary Louise Pollock * Victor Poree * LaJoyce Porter * Daniel Preddy * Leah Presley * Eileen Preville * Matthew Quiring * Carole Raimondi * Jennifer Rampton * Preeti Rana * David Randall * Shannan Rapoport * Sara Raymond * Patricia Raysik * Bruce Reeves * Kathleen Reeves * Francisco Reinking * Myrrhia Resneck * Nicole Reyes * Paul Reynaga * Stanley Riddle * Sheriene Ridenour * Julie Roche Schram * Jorge Rodriguez-Choi * Robert Romero * Alberto Rosas * Renee Ross * David Roth * Dennis Rothhaar * Leon Rountree, III * Fred Runnion * Eli Saddler * Joshua Safran * Deon Sailes * Nancy Samec * Elizabeth Sanders * Stacie Sonnek Sandifer * Nicholas Sandler * Anita Santos * Roberto Sarmiento * Emily Schmidt * Carrie Schneider * Anna Schoon * Robert Schwartz * Veatrice Scott * Eugene Seltzer * Robert Senh * Jeanne Serrano * Tushar Shah * Daniel Sharp * Lynn Sherrell * Jarvia Shu * Pragya Bobby Shukla * Michelle Sicula * Gregory Silva * James Smith * Jennifer Solomon * Victoria Sood * Matthew Spielberg * Gurjit Srai * David Stein * Karen Stein * Ronald Stewart * Jenni Strecker-Langenberg * Pamela Stubblefield * Jinnhua Su * Jay Suen * Sahar Sultan * Isis Fernandez Sykes * Jeffrey Tachiki * Ed Taylor * Colleen Tennery * Keith Monteverde Teo * Robert Terris * Racquel Thomas * Katherine Threlfall * Dorothea Tiong * Andy Phong Tran * Joel Tranter * Irene Tse * Joseph Tse * Algera Tucker * Chike Ufombah * Laura Underwood * Vanessa Valdez * Dominic Valerian * Christopher Valle-Riestra * Jeremy Valverde * Ann VanDePol * Arati Vasan * Brad Vornholt * Kirsten Voyles * Hoai-Mi Vu * Martin Waldron * Chelsea Wang * Fong Wang * Matthew Webb * Marlene Gay Weinstein * Kandis Westmore * Terry Wheeler * Cheryl White * Selwyn Whitehead * Farrah Wilder * Asha Wilkerson * Henry Williams * Jim Williams * Jennifer Wills * Suzanne Wilson * Ariel Winger * Adrian Wolff * Jonathan Wong * William Wong * Jocelyn Wong-Rolle * James Wood * Ryan Wood * Scott Wood * Christa Worley * Jeff Wurms * Jennifer Yarbrough * Allison Yau * Jeff Yin * Jacqueline Yu * Scott Yundt * Kathie Zatkin * Matthew Zavala * Matthew Zelasko-Barrett
It is one of the most beautiful comp pensations of life, that no man can sincerely try to help p another without help pingg himself.
18 THE BULLETIN Summer 2011
VLSC MENTORS & TRAINERS Ruthanne Allen Hunt * Sharon Braz * Erika Teague Briscoe * Carl Ciochon * Nikki Clark * Elizabeth Clark * Deborah Dubroff * Mark Eisenberg * Sally Elkington * Linnea Forsythe * Rowena Gargalicana * Judith Gold * Andrea Goldman * Eloina Gonzalez * Marc-Tizoc Gonzalez * Bob Goodman * Shelley Gordon * Jean Greenbaum * Hien Lam * Nancy Lawlor * Sarah Little * Ted Mermin * Gail Mitchell * Commissioner Thomas Nixon * Commissioner Glenn Oleon * Kimberly Parker-Wesley * Commissioner John Porter * Judge Stephen Pulido * Bruce Reeves * Genevieve Richardson * Sandra Roberts-Stokes * Megan Ryan * Commissioner Charles Smiley * Judge Winifred Smith * Commissioner L. Thomas Surh * Jeffrey Tachiki * Algera Tucker * Judge Alice Vilardi * Patricia Wall * Jonathan Wong *
LAWYERS IN THE LIBRARY Adrian Wolff * Alex Chase * Andrew Shalaby * Ankush Agarwal * Anna Sarazin * Autumn Paine * Barbara Green * Bonnie Riley * Brian McCarthy * Caelo Marroquin * Cecelia Fusich * Charles (Chuck) Dyke * Cheryl Chambers * Christina Deadwiler * Chuanpis Santilukka * Conswella Byrd * Craig Mar * Cristin Lowe * Darren Kessler * David Roth * Doris Mitchell * Duke Amaniampong * Edward Lee * Elaine Leadlove * Elliot Myles * Eric Casher * Erlinda Castro * Fumi Knox * George Derieg * Gerard Falzone * Harvey Kletz * Jeff Eckber * Jennie Wooley * Jennifer E. Faught * Jeremy Smith * Jessica Rauff * Jim Ostertag * Johanna Kwasniewski * Joshua Caplan * Lisa Glover Gardin * Lois Brady * Maighna Jain * Marc Wahrhaftig * Meera Parikh * Michael Cosentino * Nancy McDonald * Paul Epstein * Paul Kleven * Peter Shelton * Philip Batchelder * Richard Roisman * Robert Dalby * Robert Schock * Ross Petty * Sarita Townsend * Stephanie Bolden * Tatiana Perez Valero * Ted Stalcup * Tom Ogas * Tom Virsik * Tracy Gondo * Tushar Shah * Verleana Green * Vik Amar * Walter Johnson * William Berg
FUNDERS & PARTNERS Alameda County Bar Association * ACBA Lawyer Referral Service * ACBA Family Law Section * ACBA Real Estate Section * ACBA Trusts & Estates Section * Alameda County Family Law Association * Asian Resource Center * Bananas, Inc. * Bankruptcy Pro Bono Project * Bay Area Legal Aid * Centro Legal de la Raza/City of Oakland Rent Adjustment Program * Charles Houston Bar Association * East Bay Community Law Center/State Bar of California Equal Access Partnership Grant * Eviction Defense Center * Family Bridges * Family Violence Law Center * Homeless Action Center * Housing and Economic Rights Advocates * Language 411 * Legal Assistance for Seniors/State Bar of California Equal Access Fund * State Bar of California Legal Services Trust Fund * Superior Court of California, County of Alameda, Self-Help Services * The Thomas J. Long Foundation : van Lรถben Sels/RemeRock Foundation
FINANCIAL CONTRIBUTORS Arthur Abelson * Patti Abramson * Gilbert Adauto * Tony Adessa * Judge Demetrios Agretelis * Jorge Aguilar * Gregory Aker * Jeffrey Allen * Roger Allen * Cherri Allison * Carol Amyx * David Andersen * Judge Carl West Anderson * Judge Mary-Margaret Anderson * John Andrada * Barbara Anscher * Joseph Appel * Larry Arguello * Tony Arjo * Barbara Arnold * Lori Arnold * Evon St. Patrick Atkinson * Jillian Atuegbu * David Austin * Carol Babington * William Bachrach * Raymond Baker * Judge Michael Ballachey * Brigeda Bank * Jennifer Banker * Sandra Banks * Judge Gordon Baranco * Camellia Baray * Rick Baskin * Leonard Becker * Donald Beeson * Michael Begert * Eric Behrens * Philip Behrens * Anne Beles * Howard Bell * John Bell * Diane Bellas * Robert Belzer * Charles Bendes * Eric Bengston * Richard Bennett * Jack Benoun * Michael Berger * Louis Bernstein * Brian Beverly * David Billingsley * Cynthia Birmingham * Jerome Blaha * Joseph Blakely * Judge Jacob Blea, III * Stephen Blitch * Carrin Blyth * Stan Blyth * Roger Boaz * Todd Boley * Michael Bolgatz * Emily Bolt * Jules Bonjour * Nathan Borris * Robert Borris * Thomas Borst * Mark Bostick * Marc Bouret * Karen Bovarnick * Burke Bradley * Lois Brady * Sharon Braz * Robert Breecker * Steven Brewer * Judge Steven Brick * R. Shanti Brien * William Briggs * Thomas Broome * Richard Brophy * Gregory Brown * Maeve Brown * Mildred Brown * Michael Bruck * H. Michael Brucker * Mary Brutocao * Angela Bryant * Carla Bryant * Robert Buchman * Luz Buitrago * Terry Buller * David Bunn * Kim Burgess * Sarah Burke * Jayme Burns * Judge Kenneth Burr * Jocelyn Burton * Rebecca Cachia-Riedl * David Calvert * Priscilla Camp * Cynthia Campanile * Kathy Campbell * R. Maureen Carden * Andrea Carlise * Commissioner Geoffrey Carter * Judge Wynne Carvill * Judge Cecilia Castellanos * Felipe Castillo * Lorin Castleman * Erlinda Castro * Steven Cavalli * Betty Cavanaugh * Lauren Champion * James Chanin * Seth Chazin * Rosemeri Cheng * Kimberly Chew * Joseph Chianese * Jennifer Chin * Jeena Cho * Steven Choi * Mitchell Chyette * Timothy Clancy * Elizabeth Clark * Nikki Clark * John Clarke * Jason Clay * Jason Cline * Max Cline * Susanne Cohen * Rebecca Conradi * Robbi Cook * Judge John Cooper * Alanna Coopersmith * Stephen Cornet * John Cove Jr. * H. Christopher Covington * Steven Cramer * Karen Creech * John Creighton * Thomas Crosby * Felicia Curran * Paul Curry * Charles Cypher * Garrett Dailey * Judge Beverly Daniels-Greenberg * Susan Davidson * Kathleen Day-Seiter * Jayne De Young * Mark Delgado * Teresa Demchak * Jeffrey Dennis-Strathmeyer * George Derieg * Arthur Diamond * Steven Dimick * Robert Disilverio Jr. * Michael Dougherty * Hermin Dowe * Darya Druch * William Du Bois * Deborah Dubroff * Sharon
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 19
FINANCIAL CONTRIBUTORS Duggan * Judge Roderic Duncan * Clay Dunning * David Durant * Jonathan Eager * Judge Mark Eaton * Robin Edwards * Jon Eisenberg * David Elefant * Sally Elkington * Luke Ellis * Keith Epstein * Lilian Epstein * Sarah Fairchild * Gordon Fauth Jr. * Bruce Feder * Carol Federighi * Malcolm Feied * Seth Feinberg * Michael Ferguson * Gary Fertig * David Fischer * James Fisher * Jerome Fishkin * Kevin Flynn * Judge Paul Fogel * A. Kathryn Fox * Eugene Franklin * Robert Frassetto * Judge Robert Freedman * M. Colby Freeman * Thomas Freeman * Michael Freund * Timothy Fricker * Clifford Fried * Robert Frost * Judge Keith Fudenna * Stephen Fuerch * Robert Furtado * Katherine Gallo * Kelly Gamble * Yogeeta Gamper * Margaret Gannon * Charina Garcia * Jose Garcia * Michael Gardner * Rowena Gargalicana * Thelma Garza * Juliet Gee * Michael Gendelman * Carol Georges * Liya Getachew * Eric Gibbs * James Giller * Andrew Gillin * Robyn Ginney * Barbara Ginsberg * Rachel Ginsburg * Portia Glassman * Andrew Gold * Ivan Golde * Andrea Goldman * David Goldman * William Goldsmith * Barry Goldstein * Matthew Gonsalves * Judge Yvonne Gonzalez-Rogers * H. Wayne Goodroe * Shelley Gordon * Frederick Goss * Julie Gould * Debra Graceffa * Diane Graydon * Barbara Green * Donald Greenberg * Gordon Greenwood * Nicholas Gregoratos * Barry Gross * David Gross * James Gulseth * Carl Gustafson * Richard Gutstadt * J. Gary Gwilliam * John Haapala * Arnold Haims * Matthew Haley * Timothy Hallahan * Eric Handler * Ann Hansen * Judge Brenda Harbin-Forte * Jacob Harker * K.P. Dean Harper * Richard Harper * Walter Harper * Kim Harris * Frederic Harvey * Claire Hass * Les Hausrath * James Haverkamp * Laurel Headley * Kathleen Hegen * Renee Heider * Curt Hennecke * Stephen Henry * Evelyn Herrera * Frederick Hertz * Leah Hess * Robert Heywood * Cheryl Hicks * Joyce Hicks * John Hill * Ira Hillyer * H. Tim Hoffman * George Holland * Katharine Hooker * Barbara Horn * Constance Hosemann * Katharine Hsiao * Jenny Huang * Jon Hudak * Nicholas Hulchiy * Kevin Ikuma * Stephen Ilg * Sharon Isenhour * Ralph Jacobson * Frederick James * Rick Jarvis * Pamela Jester * Ravinder Johal * Clinton Johnson * Earl Johnson * Judy Johnson * Kenneth Johnson * Krista Johnson * Paul Johnson * William Johnson * Stephen Judson * Jacqueline Julien * Andrew Kahn * Jane Kaplan * Barry Karl * Jeremy Katz * Tracey Kaufmann * Stephen Kaus * Judge Ken Kawaichi * Patrick Kelly * Stephen Kennedy * Edward Kerley * Gary Kershner * John Kessler * Judith Keyes * Lily Kimura * George King * Justin King * Judge Kenneth Kingsbury * Claudia Kingsley * Jo Ann Kingston * Devin Kinyon * Patrick Kitchin * John Kitta * Susan Kleebauer * Jacqueline Klein * Paul Kleven * Annette Knox * Fumino Knox * David Knutsen * Thomas Knutsen * Arlene Kock * Judge Victoria Kolakowski * Pamela Kong * Judge David Krashna * Hale Kronenberg * Chris Kuhner * Rebecca Kurland * Hien Lam * Judge James Lambden * Wayne Lampert * Frank Lang * Lauren Lapietra * Jonathan Larose * Jim Larsen * Michael Lauer * Judy Law * Maria Lawless * Arthur Lazear * Elaine Leadlove-Plant * Joanne Lederman * Brian Lee * Edward Lee * Judge David Lee * Kelly Lee * Laura Lee * May Lee * Richard Lee * Deborah Leon * Jeffrey Leon * Duane Leonard * Sarah Leverett * Thomas Lewellyn * Selby Lighthill * Amanda List * David Little * Sarah Little * Beth Litwin * Michael Loeb * Madeleine Loh * John Lohse * Peter Lomhoff * Rodney Low * Leora Lubliner * Tim Lulofs * Daniela Lungu * Diane Luong * Deanna Lyon * Peter Macdonald * Stuart Mackenzie * Madelyn Mallory * Patrick Maloney * Mark Mandel * Rosylen Mangohig * Leonard Marquez * Rodman Martin * Edward Martins * Deborah Marx * Theresa Mason * Kuruvilla Mathen * Anne-Leith Matlock * Nancy McDonald * Judge Dennis McLaughlin * William McLaughlin * Ross Meltzer * Bruce Methven * Rick Miller * Toni Mims-Cochran * Dale Minami * Arthur Mitchell * Gail Mitchell * Lawrence Moll * Luis Montes * Katherine Montgomery * Edward Moore * W. Kirk Moore * Teresa Moran * Elizabeth Moreno * Christopher Morray-Jones * Judge Carl Morris * Nelson Mosher Jr. * Alex Moskovitz * Carrie Moulton * Mark Muntean * William Muraoka * Stephen Murphy * William Murray * Peter Myers * Elene Mylordos * Judge Vernon Nakahara * Howard Neal * Travis Neal * Justice Henry Needham Jr. * John Newton * Sharon Ngim * Ann Nhieu Nguyen * Anna Nguyen * Rebecca Nichols * Martin Nicolaus * George Niespolo * Heba Nimr * Wayne Nishioka * Jann Noddin * John Noonan * Judge Charles Novack * Emily Nugent * Eric Nyberg * Mary Oaklund * Sue Ochi * Victor Ochoa * Unwam Oduok * Frank Offen * James Oâ€™gallagher * Thomas Ogas * Ann Oâ€™Hara * Phyllis Olin * Adetunji Olude * Catherine Ongiri * Kristin Pace * Mark Palley * Neli Palma * Virginia Palmer * John Patton * Joshua Peacock * Robert Peacock * Lise Pearlman * Stephanie Penrod * John Penrose * Denise Perelli-Minetti * Gene Peretti * Michael Perna * Verne Perry * Stephen Pezzola * Hanh Pham * Scott Phipps * Judge Gary Picetti * J. Dominique Pinkney * Mary Pollock * Cheryl Poncini * David Pouliot * Elizabeth Pritzker * Judge Stephen Pulido * William Quinby * Roberta Quintero * Carole Raimondi * Gerald Ramiza * Alan Ramos * James Ramsaur * Daniel Rapaport * Diana Redding * Kathleen Reeves * John Reichmuth * Paul Rein * Berne Reuben * Kennedy Richardson * Rena Rickles * Walter Riley * Gary Rinehart * Rome Rivera * William Robbins, III * Paul Robbins * Margaret Roisman * Roxanne Romell * Steven Rood * Linda Roodhouse * Renee Ross * David Roth * Srinoi Rousseau * Mary Rupp * William Russum * Sunena Sabharwal * Judge Bonnie Lewman Sabraw * Joshua Safran * Malavika Sahai * Robert Sakai * Robert Salinas * Chantal Sampogna * William Samsel * Brenda Sands * Stephanie Sato * Susan Sawyer * Joseph Scanlon * Anthony Scarr * Joseph Schieffer * James Schwartz * Michael Sebree * Judge Paul Seeman * Alexander Selvin * Rochelle Shapell * Nedra Shawler * Mary Shea Hagebols * Katherine Sher * Lynn Sherrell * Gary Sherrer * Ronald Shingler * Joseph Shipp, II * Daniel Shriro * Daniel Siegel * Gregory Silva * Robert Silverman * Aaron Simon * Steven Simrin * Andrew Sinclair * Cynthia Singerman * Kathleen Skinner * Sally Sklar * Doris Slater * Lindsay Slatter * Cheryl Smith * Gerald Smith * Jennille Smith * Judge Winifred Smith * R. Lynn Smith * John Snetsinger * Jed Somit * Gregory Sowder * F. Michael Sowerwine * Judge Julia Spain * Laura Spano * Ruth Spear * Laura Spease * Anthony Sperber * Darryl Stallworth * Sherry Stanley * Cynthia Starkey * David Stein * Jason Stein * Elizabeth Strode * Reidun Stromsheim * Walter Suchyta * Michael Sullivan * Ruben Sundeen * Judge Zook Sutton * Jon Sylvester * Lawrence Szabo * Judge Jacqueline Taber * Jeffrey Tachiki * Susan Tamura * Bruce Tarkington * Shelley Tarnoff * Melanie Tavare * Jennifer Thaete * Albert Thews * Michael Thorman * Dennis Thornton * Shawn Throwe * Judge Jon Tigar * Janette Tom * Cheryl Tompkin * May Tong * Charles Toombs * Roseann Torres * Joel Tranter * Delia Trevino * Charles Triay * Frank Tridente * Paul Trudell * Judge John True, III * Elizabeth Trutner * Herman Trutner * David Tubman Jr. * Jennifer Tuffnell * Douglas Unsworth * R. Lewis Van Blois * Emily Vance * Ann Vandepol * William Vencill * Judge Alice Vilardi * Larry Vollintine * Jon Wactor * Sheena Wadhawan * Jack Wahrhaftig * Marc Wahrhaftig * Linda Walker * Marshall Wallace * Lawren Ward * Lawrence Ward * Ann Wassam * Albert Wax * Richard Waxman * Leonard Weiler * Daniel Weltin * Kandis Westmore * Richard White * Judge Marshall Whitley * William Wick * Mary Widenor * Robert Wieckowski * Gregory Wilcox * Louis Willett * Vivien Williamson * Randall Wilson * Ariel Winger * Judge Rebecca Wiseman * Matthew Witteman * Michael Wohlstadter * Adrian Wolff * Jonathan Wong * G. Geoffrey Wood * James Wood * Brendon Woods * Catosha Woods * Raymond Wright * Alan Yee * Jeffrey Yin * Dennis Young * Eugene Zinovyev
No act of kindness,
no matter how small,, is ever wasted...
[ [Aesop ]
20 THE BULLETIN Summer 2011
GUARDIANS OF JUSTICE EVENT SPONSORS Boies, Schiller & Flexner LLP
Kazan, McClain, Lyons, Greenwood & Harley, APC
Lombardi, Loper & Conant, LLP
Law Offices of Joseph W. Campbell Elkington Law Office
Keker & Van Nest LLP
Roisman Henel LLP
Morrison & Foerster LLP
Fitzgerald Abbott & Beardsley LLP
LOMBARDI, LOPER & CONANT, LLP
PARTNER SPONSORS AT&T
Bingham, Osborn & Scarborough, LLC
Littler Mendelson P.C.
JAMS—The Resolution Experts
BENEFACTOR SPONSORS Donahue Gallager Woods LLP
Reed Smith LLP
PATRON SPONSORS Brown Eassa & McLeod LLP
Meyers Nave Riback Silver & Wilson
Wendel, Rosen, Black & Dean, LLP
SUPPORTER SPONSORS Stephen G. Blitch and ADR Services, Inc.
Continuing Education of the Bar
Sarnoff Court Reporters
West, a Thomson Reuters business
Law Office of John Burris
Law Offices of Caelo T. Marroquin
Rebecca Conradi, Attorney at Law
The Harrington Group
Joel S. Sanders of Gibson, Dunn & Crutcher, LLP
Ellis Partners LLC
Kornfield, Nyberg, Bendes & Kuhner, P.C.
Wactor & Wick LLP
TABLE SPONSORS Alameda County Family Law Association (ACFLA)
Earl Warren American Inn of Court
Campbell Law Offices
Judges of the Superior Court of California, County of Alameda
SILENT AUCTION DONORS William Adams * Sheriff Gregory Ahern * Alameda Boys and Girls Club * Anonymous Donors * Art.com * AT&T * Bakesale Betty * Robin Barnett * Stephen Blitch * Bocanova * Gregory Brown * California Canoe & Kayak * Camino * Carpe Diem * Erlinda G. Castro * Denise Chambliss * Supervisor Wilma Chan * Dennis Chin * Nikki Clark * Jason Clay * Kym Cortigiano * Steve Cramer * Elite Island Resorts * Sally Elkington * Robert Frassetto * Rowena Gargalicana * Golden State Warriors * Rick Hackett * Eric Handler * Les Hausrath * Kaysi Holman * JAMS—The Resolution Experts * Richard Lee * Level 5 Salon * LexisNexis * Toni Mims-Cochran * Gary Nakamoto * NBC Universal * Wayne Nishioka * Anna Nguyen * One Market Restaurant * Marsha Peterson * Pizzaiolo * Mark Poniatowski * Cheryl Poncini * Dan Rapaport * Red Lion Oakland Airport * Reed Smith LLP * Stephanie Sato * Scott’s Seafood * Nedra Shawler * The Shopping Queen * Gregory Silva * Somebody’s Mother * Southwest Airlines * St. George Spirits * Sundeen, Salinas & Pyle * Ruben Sundeen * Janette Tom * Jean Wagner * Ann Wassam * Rick Waxman * Waterfront Hotel * West, a Thomson Reuters business * Kandis Westmore * James Wood
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 21
VOLUNTEER LEGAL SERVICES COROPRATION The Alameda County Bar Association Volunteer Legal Services Corporation (VLSC) provides free direct legal assistance to Alameda County’s low-income population by mobilizing volunteer attorneys to provide pro bono service. A tax-exempt charitable corporation, VLSC is governed by an independent board of directors. In 2010, 450 VLSC volunteers provided more than 2,800 hours of pro bono legal service through pro per advice clinics and referrals--the equivalent of more than $800,000. Onethousand low-income people in Alameda County received legal assistance through VLSC. Additionally, more seasoned volunteers serve as mentors to their newer counterparts.
Each year, VLSC is audited by an independent auditor, Harrington Group, Certified Public Accounts, LLP, to ensure transparency and compliance with proper accounting principles. The complete audit report, including the accompanying notes, is available by contacting ACBA Accountant Amanda Picetti at (510) 302-2207 or amanda@ acbanet.org. To find out how you can support VLSC, by volunteering or making a financial contribution, please visit our website at acbanet.org.
STATEMENT OF ACTIVITIES For the year ended December 31, 2010 (Audited) With Comparative totals for the year ended December 31, 2009 (Reviewed)
Revenue and support: Contribution in-kind (Note 2) Contributions (Note 8) Grants (Note 9) Special events - net of expenses of $13,280 Interest and dividends Miscellaneous income Net assets released from program restrictions
Total revenue and support
846,084 45,872 76,950 52,226 3,246 4,595 69,996
Temporarily Restricted $
5,132 (69,996) —
846,084 106,121 76,950 52,226 8,378 4,595 —
2009 (Reviewed) $
817,296 108,815 59,310 48,554 9,919 4,525 —
958,573 153,592 51,182
930,543 148,475 67,163
Expenses Program services General and administrative Fundraising
958,573 153,592 51,182
Total expenses Change in net assets before (loss) gain on investments and forgiveness of debt from affiliate Gain (loss) on investments (Note 2)
Forgiveness of receivable from affiliate (Note 10)
Change in net assets (Note 7)
Net assets, beginning of year
Net assets, end of year
22 THE BULLETIN Summer 2011
ALAMEDA COUNTY BAR ASSOCIATION Established in 1877, the Alameda County Bar Association (ACBA) is the second-oldest bar in the state of California. The ACBA has a membership of approximately 2,000 attorneys, judges, paralegals, law students, and other legal professionals, and administers numerous programs and activities to serve its diverse membership, as well as the community at large.
The ACBA is audited each year by Harrington Group, Certified Public Accountants, LLP. The complete audit report, including the accompanying notes, is available by contacting ACBA Accountant Amanda Picetti at (510) 302-2207 or email@example.com. To learn more about ACBA programs and activities, please visit us at acbanet.org.
STATEMENT OF ACTIVITIES For the year ended December 31, 2010 with Comparative totals for the year ended December 31, 2009
Revenue: Grants (Note 9) Dues Program income (Note 10) Assocation sections income - net of expenses of $16,169 (Note 14) Other income Publication income Interest income Special events - net of expenses of $21,395
Total revenue and support
558,644 430,545 380,365 67,593 35,303 31,055 30,981 17,245
2,837,755 437,295 404,207 52,372 21,208 29,356 14,020
Change in net assets before gain (loss) on investments
Gain (loss) on investments
Change in net assets (Note 8)
Net assets, beginning of year
Expenses Program services Management and general Total expenses
Net assets, end of year
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 23
Guo v. Luminary Spa, Inc., 2010 WL 317889 (Cal.App. 1 Dist.). My First Trip to the California Supreme Court
After fourteen years of civil litigation practice, I finally found myself on the steps of the California Supreme Court.
the individual alter ego of the corporation could represent the corporation became a continuing issue in this case, from the Trial Court, to the Appellate Court, and ultimately the California Supreme Court.
However, I did not have to file any pleadings with the Supreme Court to prevail for my clients. To explain how I got to this point, I share the following overview of the unique procedural history of this creditor collection case. The central event is a default judgment against a corporation and the later addition of the business’ sole shareholder/director to the judgment as the corporate alter ego.
At the trial court level, I brought a series of motions to obtain a default judgment against the corporation. I first brought a motion to strike the answer of the unrepresented corporation, then made a request for entry of its default after its answer was stricken, and finally had a prove-up hearing for the default judgment against the corporation.
The case started off in rather typical fashion as a dispute originating from a business purchase. Plaintiffs (a corporation and its owner) filed a collection action on a seller-financed promissory note from Plaintiffs’ sale of its business to my clients, the business buyers. The buyers and sellers were not represented in the underlying sales transaction.
Concurrent with those procedural matters against the corporation, I was able to gather evidence of the single shareholder’s consistent and pervasive disregard of the corporate entity. This evidence included a complete lack of corporate formalities and substantial co-mingling of corporate and personal monies without any efforts to separate the interests of the corporation from the individual.
The case went procedurally mad when, after a few months into the case, the corporation ran out of money and its attorney withdrew. This left the corporation and the shareholder unrepresented. Of course, the shareholder could continue as a self-represented litigant; however, the corporation required an attorney. To its detriment, the corporation did not retain counsel, and the shareholder repeatedly tried to be a “selfrepresented” attorney for the corporation. The issue of whether 24 THE BULLETIN Summer 2011
Armed with this evidence, I brought a motion under Code of Civil Procedure §187 to amend the default judgment by the addition of the shareholder to the default judgment as an alter ego of the corporation. Judgments are often amended to add additional judgment debtors on the grounds that a person or entity is the alter ego of the original judgment debtor. This is an equitable procedure based on the theory that the court
is not amending the judgment to add a new defendant but is merely inserting the correct name of the real defendant. See NEC Electronics, Inc. v. Hurt (1989) 208 Cal.App.3d. 772, 778779. Normally, alter ego motions are not brought on a default judgment; but in this case it was. During my research, I found there was no published opinion of a case sharing all of the procedural and evidentiary elements of this alter ego argument and a default judgment, but I did find one very analogous unpublished opinion. Shanghai Minguang Int’l Group Co. Ltd. v. Yang (2008) 2008 WL 4004697 (holding addition of alter ego to default judgment against corporation was proper based on overwhelming evidence that individual was the alter ego of the corporation, and that the individual had an opportunity to participate meaningfully in litigation against the corporation resulting in the default judgment). Judge John M. True of the Alameda County Superior Court granted my motion. The shareholder was held to be the alter ego of her corporation, and the default judgment was amended to name the correct party liable for the harm.
The shareholder appealed this ruling, on the grounds that she should be permitted to “self-represent” the corporation because she was the corporate alter ego, and because she did not have an opportunity to participate in the litigation leading up to the default judgment. The Court of Appeal rejected her arguments and affirmed the trial court order and entry of the amended default judgment. The details of these arguments are in the unpublished opinion, Guo v. Luminary Spa, Inc., 2010 WL 317889 (Cal.App. 1 Dist.). The shareholder next petitioned the California Supreme Court for review. But before I could submit anything in opposition to that petition, the California Supreme Court denied her petition—which brought a swift end to my trip to the highest court in California. Practice Tip: When assessing debt collection against an insolvent (or soon to be insolvent) business, don’t overlook the potential recovery against its shareholders. Granted, the disregard of the corporate entity is not the easiest procedural or evidentiary motion to bring, but it can be worth exploring further before deciding to abandon collection efforts.
DENISE CHAMBLISS is an associate with the Pleasanton firm of Garcia & Gurney. As a member of the firm’s General Civil Litigation practice group, her practice is concentrated in the areas of business, real estate, intellectual property, employment, and probate/trust. She was chair of the ACBA Trial Practice Section in 2010 and currently serves on the ACBA Board of Directors.
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 25
DOLLARS FOR DEPO$ HANSON BRIDGETT LEGAL OPINION WEIGHS IN BY
EARLY LANGLEY, CSR, RMR AND
HOLLY MOOSE, CSR, RDR, CRR, CCRR NOBODY LIKES HEARING THE LETTERS “I-R-S” IN THAT ORDER. BUT, IF YOU ARE A SECRETARY OR PARALEGAL WHO BOOKS DEPOSITIONS, OR THE MANAGING PARTNER OF A LAW FIRM THAT EMPLOYS THEM, UNLESS YOU ARE CAREFUL, THOSE THREE MUCH-DREADED LETTERS COULD BE IN YOUR FUTURE. California’s two court reporter trade associations representing deposition reporters obtained a legal opinion from the prestigious law firm of Hanson Bridgett warning that the way that some law firms select who takes their depositions could place the law firms, their employees, and the court reporting firms in jeopardy with the IRS as well as California’s Department of Consumer Affairs Court Reporters Board. Offering goodies such as champagne, gift cards and tickets to shows in exchange for booking deposition business has become commonplace. Some people refer to these goodies as “gifts.” The Hanson Bridgett memo concludes that such incentives provided by reporting firms in exchange for business are not gifts at all but, in fact, payments for services, and the IRS requires the recipients of those payments to treat the value of the incentives as gross income. Recipients—which could be either the secretary or assistant who schedules the deposition or the law firm that employs them—must report the value of the incentives they receive as income on their tax returns. As the memo warns in stark terms: Given that the incentives provided by Reporting Firms in exchange for business are payments for services rather than gifts, the [Internal Revenue Code] requires the recipients of 26 THE BULLETIN Summer 2011
those payments to treat the value of the incentives as gross income. This means that recipients must report the value of the incentives they receive as income on their tax returns. Failure to do so could result in the assessment of additional taxes, interest and penalties by the Internal Revenue Service. The memo also bluntly cautions that “law firms may want seriously to weigh the pros and cons of permitting their employees to receive such incentive gifts[.]” The conclusion is obvious: Things of value provided only in exchange for steering business aren’t gifts, under the legal or lay sense of the word. At best, they are called “commissions.” At worst, they are called “kickbacks.” Whatever you call them, not only does this practice risk unwanted visits from the IRS, it hurts anyone who cares about the quality of their transcripts and ensuring that the client gets justice. In a joint statement, Debby Steinman, President of the California Court Reporters Association, and Lisa Michaels, President of the Deposition Reporters Association, welcomed the opinion by saying: The practice of paying bounties and commissions to law firm employees in exchange for them selecting certain deposition firms is now revealed as bad for everyone involved: bad for law firms, bad for law firm employees and bad for deposition reporting professionals. Just as it is impossible to imagine doctors or lawyers luring business with promises of gift cards, the interests of justice are best served when the deposition market rewards quality and accuracy, not goodies offered to secretaries. The Hanson Bridgett memo just underlines
that this whole practice is a terrible idea for law firms and their employees as well.” The stakes here are high because the importance of an accurate written transcript to reasoned justice is hard to exaggerate. As one California Legislative Committee wrote: An accurate written record of who said what in court is essential if the outcome of a judicial proceeding is to be accepted by the litigants and the public as non-arbitrary, fair, and credible. In criminal cases, for example, courts of appeal rely exclusively upon written briefs and a written transcript to adjudicate the lawfulness of what occurred at trial. A conviction—and thus, in some instances, the life or death of an accused—can stand or fall based entirely upon what a witness said, what a lawyer said, what a juror said, or what a judge said, as solely reflected in the written transcript. In civil cases, millions of dollars, life-long careers, and the fate of whole business enterprises can hinge on what was said or what was not said in a deposition or at trial. The only factors that should determine whether one firm or another gets deposition business are those that serve the client’s interests and those of justice: accuracy and price. Gifts distort market competition away from quality and price in favor of who can provide the choicest goodies. Deposition reporters are officers of the court for a reason. As the Legislature recognizes, their job is too critical to turn on trivialities. The reason this problem has arisen is because the person booking the deposition—the secretary or legal professional—is not the end-user of the deposition. He or she isn’t the client whose personal life or business hinges on every word. He or she isn’t the lawyer who may see their summary judgment motion—and relationship with the client—destroyed because of a faulty transcript. Surely, the person booking the deposition wouldn’t want the written record of their lawsuit to hinge on which deposition firm handed out the nicest fruit baskets.
So-called “gift” giving has not been overlooked by the Department of Consumer Affairs Court Reporters Board of California. This agency, which is charged with policing the deposition profession, cited and fined U.S. Legal for offering a so-called “gift” that exceeded the Board’s limit of $100. Corporations engaged in court reporting services are not exempt just because they are not licensed court reporters. In the view of the California Court Reporters Board, these corporations are subject to the statutes and regulations governing licensees, and failure to adhere to these statues constitutes a misdemeanor. A lawyer summed up the whole situation best. In a letter written to one of the authors, Attorney Jed Peace Friedland put it well: “After reading your article, ‘Dollars for Depos: A Risky Business,’ which appeared in the San Francisco Daily Journal, I’d like to commend you. It mirrors my own sentiments. I’ve been on a rant about this subject in private discussions with numerous attorneys who consistently utilize poor-quality court reporters either because they are blinded by a treasure trove of perceived ‘freebies’ or because someone harbors an undisclosed addiction to…the fleeting taste of Dom Perignon. If they check their transcripts and bills closely, they’ll certainly think again before offhandedly booking court reporting services for such self-serving reasons.” Perhaps there should be a mandatory disclosure such as this affixed to every deposition transcript: “Notice is hereby given that receipt of deposition bookings in exchange for incentives offered to you by court reporting firms may expose you, your law firm and the court reporting firms to an IRS audit, and a citation and penalty levied against the court reporting firms by the California Court Reporters Board.” All right, perhaps not, but, while that warning is fictitious, it nonetheless captures the drive afoot to realign the deposition market around rewarding quality and price and to educate legal professionals about the requirements of the Internal Revenue Code and the statutes and rules enforced by the California Court Reporters Board.
EARLY LANGLEY, CSR, RMR, is a staff freelance reporter at Aiken Welch Court Reporters, president-elect (2011-2012) of the California Court Reporters Association, and a member of the Ethics First Committee of the National Court Reporters Association. She can be reached at firstname.lastname@example.org. HOLLY MOOSE, CSR, RDR, CCR, CCRR, is a freelance reporter, past-president of the Deposition Reporters Association, member of NCRA’s Ethics First Committee and is currently serving a three-year term on the NCRA Committee on Professional Ethics. She can be reached at email@example.com.
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 27
leadership firm profile
BOXER GERSON AT TO R N EY S AT L AW, L L P PRACTICE AREAS WORKERS’ COMPENSATION
Boxer & Gerson, LLP has been representing Bay Area workers, elders, and families for more than 35 years. Founded in 1977, the firm has brought together practice groups in workers’ compensation, civil litigation, and Social Security disability, making it a “one-stop shop” for injured working men and women in the Bay Area. The firm has become nationally recognized for its trial advocacy skills in all three areas of practice. With twelve attorneys dedicated to workers’ compensation claims, Boxer & Gerson, LLP is the largest plaintiff’s workers compensation firm in Northern California. Ten of the firm’s twelve compensation attorneys are Certified Legal Specialists in Workers’ Compensation with the State Bar of California. Attorney Julius Young received the “Top Blog of the Year 2009” award for his WorkersComp Zone blog (workerscompzone.com), which the LexisNexis Workers’ Compensation Law Center called “a steady stream of insightful commentary and analysis” on timely workers compensation issues. The firm has a longstanding relationship with many of Northern California’s largest labor unions, advising business agents, stewards, and union leaders. Boxer & Gerson, LLP often provides trainings to union members and shop stewards on a variety of subjects. Senior partner Stewart Boxer, whose wife is United States Senator Barbara Boxer, has a long history as a staunch union advocate, and senior partner Michael Gerson has served as an advisor to many unions on workplace issues. Additionally, all of the firm’s support staff are members of Teamsters Local 856, a local branch of the International Brotherhood of Teamsters that represents 1.4 million workers across the United States. The firm also has also made a commitment to support union businesses whenever possible. Over the years, Boxer & Gerson, LLP has also advocated for California workers and their families through effective trial 28 THE BULLETIN Summer 2011
• • • • • • • • • • • • •
Specific & Cumulative Injuries Medical Care Predesignation of Treating Physicians Utilization Review Depositions & Statements Settlement Questions Stipulations & Settlements Compromise & Release Serious & Willful Misconduct Total Disability Amputations Toxic & Chemical Exposure Third Party Claims
SOCIAL SECURITY • • • • • •
Social Security Disability – Title II Social Security Process Denials & Reconsideration Social Security Hearings Preparing for Your Hearing Decisions & Remedies
PERSONAL INJURY • • • • • • • • • • • • •
Car Accidents Truck Accidents Motorcycle Accidents Bicycle Accidents Pedestrian Accidents Defective Products Medical Malpractice Medical Devices & Implants Pipeline & Refinery Accidents Construction Accidents Industrial Accidents Dangerous Premises Brain & Spinal Cord Injuries
advocacy. The firm’s civil litigation team of John Anton and Gary Roth has handled hundreds of civil cases over the last twenty years. Mr. Anton has been named by his peers and San Francisco Magazine as a Northern California Super Lawyer in personal injury litigation on multiple occasions. Originally from Louisiana, Mr. Roth is also a veteran litigator with a focus on personal injury law. Having this litigation team “in house” allows Boxer & Gerson, LLP to address the civil matters or third party cases of their clients in coordination with the compensation case.
With twelve attorneys dedicated to workers’ compensation claims, Boxer & Gerson, LLP is the largest plaintiff’s workers compensation firm in Northern California.
For those too injured to return to the labor market, Boxer & Gerson, LLP also has a Social Security disability practice group which again affords the client a smooth “transition” or interplay from compensation or civil action to the disability pension aspects of a Social Security disability case. Managing Partner John Harrigan, recognized as a Northern California Super Lawyer since 2005, was the co-founder of California Fragile X Association and has lobbied in Washington for many years on behalf of increased medical research funding for Fragile X, the leading inherited genetic cause of development disability. He also currently serves on the National Advisory Board for an NIH grant at UC Davis Medical Center in Sacramento. Whether it is in workers’ compensation, social security disability, or personal injury, Boxer & Gerson attorneys work to maintain their reputation for extremely competent, aggressive representation of their clients’ interests.
LEGAL NURSE CONSULTANT PAULINE SANDERS, RN Medical Malpractice • Personal Injury Product Liability Medical records analysis, chronologies, deposition questions, fact analysis, and expert witness references
PAULINE SANDERS, RN Graduate of ABA-Approved Program (510) 568-2206- • firstname.lastname@example.org www.Sanders-Associates.com
Many of the firm’s attorneys are active in statewide and national organizations such as the California Applicants’ Attorneys Association, the State Bar of California Workers’ Compensation Section, the State Bar of California Specialization Section, the Consumer Attorneys of California, and the National Organization of Social Security Claimant’s Representatives. A year ago, the firm discovered that only a few of their attorneys were members of the ACBA, and decided to make the commitment to the local bar by enrolling every attorney in the firm as an ACBA member. John Harrigan commented that “our dues help to support the many wonderful programs of the ACBA and we would strongly urge other firms to do likewise.” Through the years, Boxer & Gerson, LLP has made it clear that their attorneys have been and always will be there for working people. John Harrigan stated: “In an age when unions are increasingly under attack and working people are being blamed for deficits nationally and from state to state—largely because of the greed and failings of business, banks, and the corporate elites—it is more important than ever to have an aggressive workers’ side firm to ‘level the playing field’ in fights with insurance carriers and other entities. That is what Boxer & Gerson LLP continues to provide.”
ACBA SENIOR MEMBERSHIP SPECIALIST KAYSI HOLMAN has a JD from Arizona State University College of Law and a BS in Cognitive Psychology from Vanderbilt University. She has been at the ACBA since April 2009.
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 29
PROMOTING JUSTICE SINCE 1877
alameda county bar association
The Alameda County Bar Association is proud of the relationships it has built with law firms throughout the county. Working together, we have the opportunity to enhance the practice of law and the administration of justice in Alameda County. The Leadership Firms program recognizes and rewards those law firms of ten or more attorneys that have 100% membership in the ACBA (i.e., every one of the firm’s Alameda County attorneys is a member of the ACBA).
Being a Leadership Firm means: • The firm’s name and logo appear on the ACBA website with links to the firm’s website. This is a great way for your firm to stand out in the crowded legal field; • The firm will be profiled in The Bulletin—another way to raise your visibility in the legal community. • An annual Managing Partners Forum, currently in the planning stages, will give firm leaders an opportunity to gather and share the unique issues that face them; and • Additional benefits to reward and recognize the Leadership Firms are being explored by the ACBA. For more information about Leadership Firms, or to get your firm on board, please contact ACBA Senior Membership Specialist Kaysi Holman at (510) 302-2200 or email@example.com.
30 THE BULLETIN Summer 2011
in conversation with
JASON STEIN Superior Court ADR Program Administrator
by Evelyn J. Herrera
In 2008, the Superior Court of California, County of Alameda, developed a new Alternative Dispute Resolution (ADR) Program under the leadership of program administrator John Helie. The program enables litigants to choose from a panel of experienced meditors and arbitrators, who provide the first two hours of service on a pro bono basis. The program has been very successful, with an overall settlement rate of 54 percent. There are currently 117 mediators and 70 arbitrators participating on the panel. In 2010, 974 referral to court mediation resulted in 238 mediated cases, significantly reducing the court’s docket. When John Helie left the position to start his own mediation and consulting business, the Court appointed Jason Helie to be his successor. Mr. Stein has several years of expereince with the Superior Courts of Alameda and San Francisco Counties. Recently, Mr. Stein was kind enough to share his experience and insights with Evelyn Herrera, a member of the Court’s ADR panel and an ACBA ADR Section Executive Committee member. Her profile of John Helie was published in the Spring 2009 issue of The Bulletin.
Please tell us about your background. “My first exposure to ADR was when I was working as a staff attorney for AIDS Legal Referral Panel, a not-for-profit legal services provider for people living with HIV and AIDS. I saw that some of my clients’ needs were best addressed through the creative and cooperative process of mediation. I then began working at the San Francisco Rent Stabilization and Arbitration Board and saw many cases resolved through
mediation. I became convinced that mediation was a great alternative to litigation and decided to become a mediator. After working in private practice, I accepted the position of Mediation Advisor in the Superior Court in San Francisco for its Self-Represented Litigants (SRL) Mediation Program. The focus of the program was to provide mediation services for small claims and limited civil matters. We recruited and trained approximiately 130 volunteer mediators for the program and provided mediation coverage for all small claims hearings, including law students from UC Hastings and the University of San Francisco who volunteered as part of their schools’ clinical mediation programs.”
What insights have you gained? “I saw people come to court tense, angry, and frustrated. If they settled the case in mediation, the same people left court smiling and shaking hands, even offering each other rides home from court. This demonstrated to me how meaningful a good mediation can be. Communication is restored and people often leave with new tools for interacting with one another. Once a case settled, we would seldom see it return to court. “I also saw first hand the challenges that self-represented litigants face. In most small claims hearings, no attorneys are permitted, but when a self-represented litigant faces a represented person in another civil matter, such as an unlawful detainer, the self-represented litigant has to overcome his or her lack of familiarity with the legal process and the imbalance of power that can exist between attorney-represented and selfrepresented parties.”
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 31
What is new in the ADR program? “Given the challenges facing self-represented litigants, we are now offering workshops to help prepare them for mediation. We are also expanding the program to allow referrals from our probate judges. We have enhanced the requirements in training and experience for our mediation panelists who specialize in probate. We hope that these new referrals will assist families dealing with the loss of a loved one and help them preserve their relationships. We also hope that the referrals will prove to be an effective case management tool for the probate department.”
What is the program doing to address the needs of language minority litigants? “We developed mediation outreach materials for selfrepresented litigants in Spanish. We hope to have future funding for other brochures in other languages.”
Do you see the program as a success? “I am proud of our program’s success. My predecessors worked hard to build this program into the success that it is. I hope to tend to the “care and feeding” of the program while adapting it to meet the ever-changing needs of the community and the court.” EVELYN J. HERRERA is a practicing attorney and mediator and a member of the ACBA ADR Section Executive Committee.
32 THE BULLETIN Summer 2011
SHAPIRO BUCHMAN PROVINE LLP and
ROGER J. BROTHERS and J. WESLEY SMITH (formerly the Business Group of the McNamara Firm) Have Merged to Form
The combined Firm will continue to specialize in business, employment, estate and tax planning, real estate, and related litigation matters. 1333 N. California Boulevard, Suite 350 Walnut Creek, California 94596 T: (925) 944-9700 F: (925) 944-9701 www.sbllp.com
We Mean Business™
BOARD OF DIRECTORS UPDATE The February, March, and April meetings At the February 5, 2011 meeting and annual strategic planning retreat of the Alameda County Bar Association Board of Directors, the Board approved the minutes of the January 11, 2011 meeting and took the following actions:
At the April 5, 2011 meeting, the Board approved the minutes of the February 5 and March 1 meetings and and took the following actions:
Adopted the ACBA “Guidelines Regarding Fiduciary Obligations of Directors and Conflict of Interest and Ethics Policies.” Approved creation of the new ACBA Intellectual Property Section.
Approved annual revisions to the ACBA strategic agenda.
Heard an update on personnel and the proposal for “civil Gideon” services under AB 590 from Executive Director Ann Wassam.
At the March 1, 2011 meeting, the Board took the following actions: 1.
Approved minor revisions to the ACBA Cash Handling and Controls Procedures.
Shared reports on section activities from section board liaisons.
Discussed membership recruitment strategies, as well as MCLE, section, and Barristers activities.
Heard a report on ACBA and VLSC finances from ACBA Finance Committe Chair Sally Elkington.
Heard a report on personnel, the Judicial Evaluation Survey, and the AB 590 proposal from ACBA Executive Director Ann Wassam.
Shared reports on section activities from section board liaisons.
Heard an update on membership, MCLE, and section activities from Senior Membership Specialist Kaysi Holman.
Heard a report on Barristers activities from Barristers Chair Stephanie Sato.
Discussed membership recruitment strategies.
Heard a report on ACBA and VLSC finances from ACBA Finance Committe member Kandis Westmore.
Discussed procedures and timeline for conducting the annual executive director performance evaluation.
KANDIS A. WESTMORE
VICE-PRESIDENT KANDIS A. WESTMORE is a deputy city attorney in the Oakland City Attorney’s Office. A graduate of USF School of Law, she is a past chair of the ACBA Lawyer Referral Service Governing Committee and an active VLSC volunteer.
EAST BAY NEUTRAL ROGER F. ALLEN, ESQ. Mediation • Arbitration • Neutral Evaluation Ericksen, Arbuthnot, Kilduff, Day & Lindstrom, Inc. 155 Grand Avenue, Suite 1050 Oakland, CA 94607-3647 (510) 832-7770 • firstname.lastname@example.org
“YOUR BOND SERVICE SPECIALIST” PROBATE BONDS CIVIL LITIGATION BONDS • • • • • •
Administrator Executor Guardian Conservator Trustee Professionl Fiduciaries
• • • • • •
Appeal Attachment Injunction/T.R.O. Writ of Possession Bond of Receiver Lost Trust Deed Bond
2300 CONTRA COSTA BLVD., STE. 280 PLEASANT HILL, CA. 94523 www.phillipsbonding.com
TEL: 925.687.4400 FAX: 925.687.4040
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 33
Visit acbanet.org and log in to the “Members’ Section” to get all your member benefit information, including exclusive discount codes.
HUNGRY FOR KNOWLEDGE? Take advantage of discounts on AMERICAN BAR ASSOCIATION publications and special packages and discounts from LEXISNEXIS and WESTLAW.
ARE YOU COVERED? ACBA members save on professional liability insurance of MARSH AFFINITY GROUP SERVICES, as well as personal insurance (health, dental, vehicle, home, and more) from MYERS-STEVENS-MELLO and GEICO.
DO YOU KNOW WHERE YOUR MONEY IS? You can trust your investments to CATALYST FINANCIAL PLANNING AND INVESTMENT
MANAGEMENT CORPORATION, which offers ACBA members discounted financial planning, investment management, and fiduciary auditing services.
NEED A HELPING HAND? Give yourself an edge with discounts on court reporting services from AIKEN WELCH and Atkinson-Baker Court Reporters, and photocopying, deposition services, and more from LEGALBEAGLE. Harness the latest technology, including rules-based calendaring from DEADLINES-ONDEMAND, credit card processing services from ELAWAMERICA, data backup and recovery from COREVAULT, and legal website development and hosting from ESQSITES123.COM.
GOING SOMEWHERE? Enjoy discounts on secure airport parking and more with PARK ‘N FLY and Park SFO. Don’t want to leave your car at the airport? Save with unlimited discount coupons from BAYPORTER EXPRESS. And if you’re traveling by road, we’ve got you covered with savings from ENTERPRISE and HERTZ RENT-A-CAR.
34 THE BULLETIN Summer 2011
Client Communication: Measuring Your Cross-Cultural Competence BY JATRINE
In today’s age of globalization, cross-cultural communication has become a vital skill for lawyers to master. When we interact with clients and colleagues on a daily basis, we are interacting with issues related to culture. Behavior, communication, relationships, parenting, decision-making, expectations and so on—all have cultural significance. Effective cross-cultural communication is the ability to communicate with individuals from other cultures in a way that minimizes conflict, promotes greater understanding, and maximizes your ability to establish trust and rapport. It requires lawyers to learn how to properly interpret non-verbal and verbal cues. For lawyers, gaining an awareness of cultural differences can improve business development, staff retention, client service and, most importantly, lawyer-client relationships. We all interpret the world through their individual cultural lens or worldview. These interpretations ultimately become positive, negative and sometimes erroneous judgments about the behavior, decisions and choices made by clients and others. The ability to communicate cross-culturally is tied to your level of cultural competence. As your level of cultural competence increases, so, too, will your cross-cultural communication skills. So what is cultural competence? For individuals, cultural competence is the ability to function effectively in the context of cultural difference and the capacity to effectively adapt, accept, and interpret culturally relevant behavior. Think of cultural competence as a “lens” that can accurately interpret culturally relevant behavior and values.
How to measure your cultural competence The most effective way to determine your level of cultural competence is to take an assessment. Dr. Milton Bennett, developer of the Developmental Model of Intercultural Sensitivity, provides a good starting point to review current perspectives around culture and difference. His model outlines six stages that provide insight into an individual’s level of intercultural sensitivity and cultural competence:
BENTSI-ENCHILL, J.D., CPCC
Stage One: Denial In this stage, lawyers are unaware of cultural difference. The prevailing attitude is likely to be: “Business is business the world over” or “Everyone would respond this way.” Lawyers in this stage of development might be so intent on the tasks at hand that they fail to notice the cultural aspects of business relationships with clients and colleagues. In this stage, there is a general lack of awareness about difference. However, awareness is a key element in cross-cultural communication. Effective cross-cultural communication requires that individuals have some awareness and appreciation of difference. A lawyer in denial would be completely insensitive to his or her client’s cultural taboos, expectations, family norms, communication and conflict styles. While in the denial stage, lawyers will be ineffective in establishing trust and good relations with clients from different cultures. The failure to understand the significance of cultural differences may lead lawyers to implement ineffective case strategies due to their misinterpretations of client behavior. For lawyers in this stage, unnecessary conflicts and misunderstandings, along with an overall lack of understanding of the importance of cross-cultural communication, are common.
Stage Two: Defense Lawyers in this stage will recognize some cultural differences and view such differences negatively.
MCLE CREDIT Earn one hour of general MCLE credit by reading the article and answering the questions that follow. Mail your answers with a check for $20 to the address on the answer form. You will receive the correct answers with explanations and an MCLE certificate within two weeks.
CERTIFICATION The Alameda County Bar Association has been approved by the State Bar of California as a continuing legal education provider. This self-study activity qualifies for MCLE credit in the amount of one hour of general credit. ACBA PN#297.
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 35
Instead of striving to understand or interpret the patterns of conduct or communication that differ from their own culture, lawyers in defense are likely to mislabel such conduct as “wrong,” “unintelligent,” “dishonest,” and so on. In this stage, the greater the difference, the more negatively it is perceived. A criminal defense lawyer in the denial stage will most likely be frustrated by a female murder defendant from China, who is more committed to preserving family honor than asserting a claim of self defense in the murder of her husband. (For many in China, issues of honor, shame and commitment to family take precedence over individual goals and objectives.) How effectively could a lawyer in the denial stage represent this client? How might the difference in cultural worldviews and behaviors affect the lawyer’s relationship with her client? Clearly, lawyers in this stage will struggle to communicate and work effectively with clients they perceive as different. This perception may cause otherwise well-meaning lawyers to misjudge or stereotype a client. Negative attitudes and perceptions held about people from other cultures serve to diminish cross-cultural understanding and communication, ultimately undermining a lawyer’s ability to establish a healthy and respectful relationship with his or her client.
Stage Three: Minimization of difference It is common for lawyers in this stage to avoid stereotypes and appreciate differences in language and culture. However, many will still view their own values as universal and superior, rather than viewing them simply as part of their own ethnicity and culture. As a result, it is common for lawyers in minimization to believe that everyone else shares their ideals, goals, and values with regard to family, work, professionalism, humor, communication, etc. In dealing with clients, the lawyer is likely to misinterpret the client’s behavior, opinions and reactions because the lawyer will misperceive that the client shares his or her cultural values. For example, in American culture, when assessing credibility, a lawyer may read a client’s or a witness’ failure to maintain eye contact as a sign of dishonesty. However, in many cultures, averting the eyes is a sign of respect to someone in authority. How will an inaccurate read on behavior impact the lawyer’s ability to make an accurate assessment of the credibility of a client or witness? Lawyers in this stage focus on minimizing difference and in so doing they misread relevant behavioral and communication cues that are based on culture. Assuming similarity when none exists serves as a barrier to successful cross-cultural communication.
Stage Four: Acceptance of difference Lawyers in this stage acknowledge that identifying significant cultural differences is crucial to understanding and improving their interactions with individuals from other cultures. There is an awareness of your own culture and an understanding that, although individuals from other cultures communicate differently and have different ideas and customs, they are neither superior nor inferior. Lawyers in this stage are beginning to interpret culture through a culturally unbiased lens. Lawyers who are able to accept cultural differences have the ability to shift perspectives to understand that behavior typically defined as “ordinary” in his or her own culture can have different meanings in different cultures. Flexibility, adaptability and open-mindedness are the route to successful cross-cultural lawyering and communication. Understanding, embracing and addressing cultural differences leads to the breaking down of cultural barriers, and the decrease of “culture clashes.” These skills lead to better lines of communication, stronger interpersonal relationships, mutual trust, and enhanced client service. It is important for lawyers to have the ability to properly analyze and respond to clients as a basis for establishing effective lawyer-client relations. The following is a real situation described by an immigration lawyer. It provides a great example of effective cross-cultural communication and lawyering: The lawyer was representing a client eager to obtain his permanent residence status so he could take a long-awaited trip home to visit family and friends. During a discussion about timeframes for the permanent resident process, the lawyer gently explained to the client that his expectations regarding processing timelines were unreasonable and simply impossible to meet. In an attempt to “expedite” the process, the client responded by offering the lawyer a bribe. In this situation, the lawyer was aware of his client’s cultural background, and as such, was aware that in his client’s culture, it is customary to pay officials bribes in order to expedite certain processes; in fact, such bribes were often expected. The immigration lawyer’s awareness of his client’s background allowed him to respond in an appropriately sensitive and informative manner. Additionally, since the lawyer approached the situation with understanding instead of judgment, the lawyer-client relationship was preserved. This example speaks to the heart of the significance of cultural awareness and competence required to develop and sustain successful attorney-client relationships.
36 THE BULLETIN Summer 2011
Stage Five: Adaptation to difference In this stage of development, lawyers are able to take the perspective of another culture and operate successfully within that culture. Lawyers in this stage are likely to have developed solid skills in cross-cultural communication. Their increased awareness, acceptance and ability to adapt to other cultures makes such communication possible. They are more likely to independently strive to understand the nuances of other cultures, which leads to openness and ability to connect with others.
respected and valued regardless of where the individual’s skill level may lie on the cultural competence continuum.
Tips for improving cross-cultural communication Although training and coaching interventions are the most effective methods of improving cross-cultural communication skills and cultural competence, the following are some things that lawyers can begin doing to improve cross-cultural communication skills: 1.
Gain awareness. Become aware that although a gesture, word, or response may mean something in your culture; it may mean something totally different to someone from another culture.
Take a look at your own culture. Understanding how your worldview and culture impacts your perception of others will help you identify instances where you may tend to use biases or stereotypes when interacting with those whom you may perceive as different.
Try a little understanding. In trying to better understand your clients and their motivations, understand the impact that culture plays on their values, perspectives, and behavior.
Listen closely and pay attention. Try to focus on verbal as well as non-verbal cues and the behavior of your client. If the client seems distracted, confused, or ill at ease, ask questions.
Suspend judgment as much as possible. Approaching people from other cultures in a judgmental manner will hinder your ability to gain a clear understanding of the situation.
Be flexible. Flexibility, adaptability and open-mindedness are critical to effective cross-cultural communication. Understanding, embracing and addressing cultural differences will lead to better lines of communication, client-service, and lawyering.
Stage Six: Integration of difference In this stage, lawyers have the ability to evaluate another individual’s behavior in the frame of reference of their client, opponent, or colleague. They will be able to establish rapport and read the verbal and non-verbal cues of an individual from another culture. This skill is useful in learning how to “read” people in relevant ways that are accurate as opposed to stereotypical. Lawyers in the integration stage become adept at evaluating any situation from multiple cultural frames of reference. Additionally, lawyers in leadership roles within organizations will define their roles by demanding intercultural competence and encouraging educational training in those skills. They strive to ensure that there is respect for cultural diversity that leads to a highly diverse workforce and client base. Organizations that have successfully embraced diversity and inclusion possess a significant advantage over other organizations when dealing with diverse clientele. The further along a lawyer is on the continuum of cultural competence, the more effectively he or she will be able to communicate with clients and others cross-culturally. Cultural competence is a developmental process that evolves over an extended period through the proper use of competency assessments, training, and coaching. Effective cultural competence training programs should take a multi-dimensional approach and focus on helping individuals gain skills, knowledge, and attitudes that encompass five elements: 1. 2. 3. 4. 5.
Awareness, acceptance and appreciation of difference; Awareness of your own cultural values; Understanding of the dynamics of difference; Development of cultural knowledge; Ability to adapt and practice skills to fit the cultural context of co-workers, managers, clients, and/or customers.
Most importantly, programs should be sensitive to the needs of all participants and structured in such a way as to create a safe learning environment where each participant’s opinion is
Lawyers who are willing to address cultural issues when dealing with clients and colleagues will enhance client relationships and improve their ability to solve problems and negotiate. One should keep in mind that improving crosscultural communication and cultural competence is a process and a journey, and requires patience. The lawyer’s commitment and desire to improve will go a long way toward strengthening client relationships as well as his or her own lawyering skills.
JATRINE BENTSI-ENCHILL is an attorney, Certified Executive Coach, and the founder and director of the Esq. Development Institute, an organization committed to helping lawyers excel personally and professionally. For more information, please visit esqdevelopmentinstitute.com.
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 37
SELFSTUDY Measuring Your Cross-Cultural Competence
Cultural competence means that you have an awareness that people come from different cultures, and may not act the same way you do. True__ False ___
2. Misjudging or stereotyping clients may be a result of a lack of knowledge about the client’s culture. True___ False ___ 3.
Most people, including attorneys and clients, share common ideals, goals, and values with regard to family, work, professionalism, humor, communication, etc. True___ False ___
4. Accepting cultural difference does not necessarily mean that a lawyer has the ability to shift perspectives to understand that behavior typically defined as “ordinary” in your own culture can have different meanings in different cultures. True__ False ___ 5.
The lawyer-client relationship is better maintained by approaching cultural differences with understanding instead of judgment.
8. As long as an attorney has excellent knowledge of the law, he or she will be able to effectively communicate with his or her client. True___ False ___
9. Flexibility, adaptability, and open-mindedness are critical to effective cross-cultural communication. True___ False ___ 10. If attorneys strive to understand the nuances of cultural difference, they will develop cultural competence quickly without additional training. True___ False ___
HOW TO RECEIVE ONE HOUR OF MCLE CREDIT Answer the test questions above, choosing the one best answer to each question. Mail this page and your payment for $20 to: Alameda County Bar Association/MCLE 70 Washington Street, Suite 200 Oakland, CA 94607 Name:
State Bar #:
True__ False ___ Firm Name:
6. Operating successfully within other cultures is a key component of the fifth stage of cultural competence, Adaptation to Difference.
Address: City, State, Zip: Phone:
True __ False ___ Visa
It is not possible for anyone to evaluate situations from multiple cultural frames of reference. True___ False ___
ACBA) Cardholder Name: Card Number: Expiration Date: Signature:
38 THE BULLETIN Summer 2011
Check (payable to
NEW ACBA MEMBERS - FEBRUARY-M AY 2011 Gregory Abel Michelle Abrazaldo Nicholas Arduini Barbara Arnold Matthew R. Bainer Toshima Barks Christopher A. Barnett Philip Behrens Roger Boaz Burt Boltuch Robert Brown Matthew Bruns Ana Sofia Bruzon Megan A. Burke Curtis Burr Leighton Burrey Kimberly Campbell Shannon Clawson Laura A. Craig Terri L. Crawford John Davis Rebecca Davis Alice Dueker Yan Wen Fei Tom Ferri Robert D. Finkle Jose Luis Fuentes Baron A. Geluz Sean B. Gentry Ryan Gronsky Alex Harary Jason Honaker Cameron Hoyler Stephen Ilg Chelsea Jagar Loretta A. James Kamran Javandel Alexandra Jeffress Jenny P. Jerez Tiffanie A. Jower Jeffrey Kaloustian Nicholas Kam Jessica Sunghwa Kang Erin Katayama Darcy Keith Jennifer M. Keith Kevin Kilty Leigh Kirmsse
Kristopher Kokotaylo Matthew C. Lewis James Lindfelt Jeffrey A. Loew Nicholas Machado Arabelle Malinis Christian Martinez Theresa Mason Anne-Leith Ferguson Matlock Michael R. Meinert Brent Meyer Jamie Miller Kimberly Millington James L. Mink Teresa Moran Antonia More Morgan Muir Lisa Oberg Ron Patterson Adam Pennella Denise Perelli-Minetti Joan Presky Bruce Ramsey Darin Ranahan Tracy Regli John Paul Reichmuth Rome Rivera Carlo Rolando David M. Rosenberg-Wohl Marci Ruben Vicki Satrap Rachel Saunders Jennifer Schiffner Emily Schmidt Barbara Scramstad April Seo Michael Shklovsky Vadim Sidelnikov Urvashi Sinha Frank A. Splendorio Jason H. Stein Ronald M. Stewart Raymond Thomas Paul Thorndal Ryan Vlasak Chris Wagner Jocelyn Weisbrich Kara Wild
BULLETIN ADVERTISERS ADR Services ................................................................. 3 Aiken Welch Court Reporters .......................................... 4 Catalyst Financial Planning & Investment Management Corporation ..................... Inside Back Cover East Bay Neutral - Roger F. Allen ....................................33 Hagen, Streiff, Newton, & Oshiro, Accountants, PC......... 8 JAMS ............................................................................. 6 Lawyers’ Mutual Insurance Co. .............. Inside Front Cover Legal Nurse Consultant: Pauline Sanders, RN ............... 29 LexisNexis ....................................................................25 Myers Stevens Mello ...........................Outside Back Cover Office Space for Rent ..........................Outside Back Cover Phillip’s Bonding & Insurance .......................................33 Shapiro Buchman Provine Brothers Smith LLP...............32 West .............................................................................32
Financial Planning & Investment Management Corporation
Customized Portfolio Management for Individuals and Institutions
Since 1996, individuals and institutions have chosen to invest with Catalyst because of our exceptional level of personalized service, our ability to generate consistent and competitive returns, and our focus on meeting each client’s long term goals. We offer: • Investment portfolios designed to meet speciﬁc ﬁnancial and social objectives • A long record of competitive returns, delivered by a disciplined, rigorous investment approach • Highly personalized attention from a team of experienced professionals • Special attention to tax-sensitive situations • A 10% discount on ﬁnancial planning, investment management and ﬁduciary auditing services to members of the Alameda County Bar Association
For more information please contact us at 510.547.5711 or visit our website www.catalystim.com
ALAMEDA COUNTY BAR ASSOCIATION www.acbanet.org 38
FURNISHED OFFICE NEAR LAKE MERRITT
LAW OFFICE IN CLASS-A OFFICE BUILDING
Office/secretarial space conveniently located in secured building near Lake Merritt, BART, and freeways. Nicely carpeted, painted and equipped with phone jacks, electrical outlets and computer cabling.
Law office in premium 4-story Class-A office building with elevator, walking distance to Piedmont and Montclair. Includes reception service and possibly Lexis/Nexis. Please call Michael at (510) 336-9388
Please call Carolyn (510) 465-1906
BENEFITS Specialists Since 1946
MEDICAL Dental - Vision - Life - Disability INSURANCE
For Quotes call (800) 862-4243 San Bruno, CA 94066
www.myersstevens.com License# 0F04106