casa 1-8-14.pdfadvertising rates and policies are made available by the sccba board and executive...

A Publication of the Santa Cruz County Bar Association and Lawyer Referral Service First Quarter 2014

1

CASAof

Santa Cruz County

Cynthia Druley,Executive Director

Santa Cruz County Bar Association January, February, March 2014

340 Soquel Avenue, Suite 209Santa Cruz, California 95062tel 831-423-5031 / fax 831-423-6202email sccbar@sbcglobal.netwww.santacruzbar.orgwww.lawyerreferralsantacruz.org

President: Thornton Kontz: 427-2727President-Elect: John Burton: 425-5023Past President: Larry Biggam: 429-1311Secretary: Laura Walther: 457-1700Treasurer: Pamela Mathiesen: 429-0181Directors At Large: Nathan Benjamin: 425-8999 Anthony Condotti: 423-8383 ThomasGriffin:422-2444 Emily Trexel: 429-1212 Executive Director: Linda M. Martin: 423-5031

Bar Briefs is published four times each year by the Santa Cruz County Bar As-sociation, Inc. (SCCBA). The opinions expressed herein do not necessarily represent the opinions of the SCCBA, itsofficers,directors,members,ortheeditor.

Editor: John Burton: 425-5023

Newsletter Layout and Design:Evelyn Volpa, Creative Designs685-3314; [email protected]

Editorial submissions to Bar Briefs are welcome. However, we accept no re-sponsibility for the custody or return of materials submitted for publication.

All submissions for publication become the exclusive property of SCCBA. All rights reserved.

Advertising rates and policies are made available by the SCCBA Board and Executive Director. Acceptance of advertisments for publication does not constitute an endorsement or recom-mendation of products or services advertised.

Copyright © 2014 SCCBA

Santa Cruz CountyBar Association

2Santa Cruz County Bar Association January, February, March 2014

Calendar ................................................................................................... 3Articles CASA of Santa Cruz County .............................................................. 5 Don’t Wait: Plan NOW for Emergencies ............................................. 14President’s Message .............................................................................. 8Bench Bar Liaison .................................................................................. 10Announcements SCRABBLE 2014 - Law Library ......................................................... 4 2014 Court Holiday Schedule ............................................................. 10 AnnualMeetingInvitationandProposedSlateofOfficersfor2014 ... 11 Join Lawyer Referral Service .............................................................. 22 Join Santa Cruz County Bar Association ............................................ 22Events/Photos October MCLE .................................................................................... 13 November MCLE ................................................................................ 18 December MCLE ................................................................................ 20Pulse Line ................................................................................................ 22

Advertisers Cartwright, Harold – Mediation .............................................. 21 Cottle, (ret) Justice Chris – Mediation & Arbitration .............. 19 Gelblum, Peter – Mediation & Arbitration .............................. 19 Hartsell & Olivieri – Court Reporters ..................................... 21 JAMS, The Resolutions Experts ............................................ 9 McBride & Associates – Court Reporters .............................. 21 Newman & Marcus Law Firm ................................................ 19 The Other Bar ........................................................................ 21 LawOfficeofStevenPremo .................................................. 21 Pulone – Court Reporters ..................................................... 8 Santa Cruz Self Storage ........................................................ 19 Larry Stone, MFT .................................................................. 21

SCCBA Mission Statement:The mission of the Santa Cruz County Bar Association is to diligently promote meaningful access to justice for all persons, to provide educational and social opportunities for all of its members, and to ensure leadership on major issues affecting the profession, including the preservation of the independence of the legal profession and the judiciary.

INDEX

http://www.santacruzbar.org

http://www.lawyerreferralsantacruz.org

mailto:[email protected]



Mon 6

Wed 8

Fri 10

Wed 15

Mon 3

Fri 7

Tues 11

Wed 12

SCCBA“Plowing theFields of LegalPrecedent:”WendyLascher,StateBarCertifiedSpecialist inAppellate Law,presents a workshop on Legal Writing for Transactional, Trial, and Appellate Lawyers. Topic includes myths about legal writing, organizing ideas, choosing your battles, with examples, both good and bad. Hotel Paradox, at 12:15-1:15 pm. $35 for members; $40 for non-member attorneys, and $30 for judges and non-attorneys. Pay at secure site: santacruzbar.org, or contact: SCCBA, 831-423-5031 or [email protected].

Real Property SectionCatherine A. Philopovitch, Attorney at Law, discusses “Parcel Legality - One Parcel or More?” DeLaveaga Golf Course Restaurant at 7:15 a.m. Cost: $14.00 (whether or not you eat breakfast) plus an additional $10.00 for MCLE credit - Checks payable to Atack & Penrose, LLP. One (1) unit MCLE credit. No R.S.V.P. required. Contact: Rochelle Mulder, Atack & Penrose, LLP, 831-515-3344 or [email protected]

Advocates (New Lawyers) holiday party at the home of Anne Hartman. Email [email protected] for directions

Estate Planning Section “DigitalEstates,SocialMediaandTechnology.”TimMaximoff,attorneywiththelawfirmofHogeFentoninSan Jose, will speak on the challenges of estate planning and administration in the digital world. Our clients have assets and accounts on line and the law, and practice and policy of Yahoo and other providers can be surprising. DeLaveaga Golf and Country Clubhouse, 7:15 a.m., $14.00; an additional $10.00 if you want MCLE credits. Questions, call or e-mail Peter Sanford, 831-426-8484 or [email protected].

Women Lawyers of Santa Cruz County Annual Meet and Greet coming in February. Free to WLSCC members. Visit WLSCC.org for more information.

SCCBARichard Burt, Attorney at Law, gives practical guidance to lawyers about the dramatic changes to the LLC law, effective January 1, 2014. Hotel Paradox, at 12:15-1:15 pm. $35 for members; $40 for non-member attorneys, and $30 for judges and non-attorneys. Pay at secure site: santacruzbar.org, or contact: SCCBA, 831-423-5031 or [email protected].

Celebrating 25 Years of the Santa Cruz Bar Association and Lawyer Referral Service Join us for our Annual Meeting and Election of Officers and enjoy a tour of the SCCBA Historical display. At Chaminade, 5:00 to 7:30 pm, $50 per person. Invitation on page 11. Contact: SCCBA, 831-423-5031, or RSVP online at www.santacruzbar.org.

Advocates (New Lawyers) meeting at Sante Adairius Rustic Ales in Capitola. Contact: Reed Gallogly, [email protected].

Real Property SectionJordan A. Ciliberto, Attorney at Law and Dinah V. Sapia, Attorney at Law, present “Annual Update 2014, Part I – Leasing, Easements, Remedies and Insurance.” Cost: $14.00 (whether or not you eat breakfast) plus an additional $10.00 for MCLE credit - Checks payable to Atack & Penrose, LLP. One (1) unit MCLE credit. No R.S.V.P. required. Contact: Rochelle Mulder, Atack & Penrose, LLP, 831-515-3344 or [email protected]

2014 SCCBA – MCLE Seminars held on 1st Monday of each month at Paradox Hotel

Jan

Feb

MCLE

MCLE

MCLE

MCLE

MCLE

NEW











http://www.wlscc.org




Estate Planning Section“Attorney Fee Petitions: What They Must and Should Include.” Michael Desmarais, well known estate litigation attorney from Los Gatos will speak on what your fee petition should say. Declaring your hourly rate and amount of time you spent isn’t enough. You need to tell the Court what the “lodestar” is and what the multiplier should be. DeLaveaga Golf and Country Clubhouse, 7:15 a.m., $14.00; an additional $10.00 if you want MCLE credits. Questions, call or e-mail Peter Sanford, 831-426-8484 or [email protected].

SCCBA - Date and Topic To Be Announced.

COME MEET The Advocates and SCCBA Board in a social setting at the Advocates/Bar Board mixer at the offices of BiggamChristensen&Minsloff. ContactSCCBA, 831-423-5031 or [email protected], or Reed Gallogly, [email protected]. In addition, The Advocates (New Lawyers) Section announces that 2014 President for the Advocates section is Courtney Leibrock of the BaskinGrant lawfirm, replacingoutgoingPresidentAnneHartman. 2014SocialChair for theAdvocates section is Reed Gallogly of the Grunsky law firm, after outgoing Chair CreightonMendivil of the Senior Citizens Legal Services.

Real Property SectionAnna K. DiBenedetto, Attorney at Law and Teresa V. Rein, Attorney at Law, present “Annual Update 2014, Part II – Sales, Brokers and Agents, and Construction Law.” Cost: $14.00 (whether or not you eat breakfast) plus an additional $10.00 for MCLE credit - Checks payable to Atack & Penrose, LLP. One (1) unit MCLE credit. No R.S.V.P. required. Contact: Rochelle Mulder, Atack & Penrose, LLP 831-515-3344 or [email protected]

Estate Planning Section“The Global Giving Landscape.” Carola M. Barton, Managing Director of Strategic Philanthropy, Ltd. and CharlesPacker,estateplanningattorneyfromtheSanJoselawfirmofHopkinsandCarley,willspeakonan overview of philanthropic trends globally; what makes for an effective global donor; tax and legal issues affecting global giving; and, how and why to engage clients in the philanthropic conversation. DeLaveaga Golf and Country Clubhouse, 7:15 a.m., $14.00; an additional $10.00 if you want MCLE credits. Questions, call or e-mail Peter Sanford, 831-426-8484, [email protected].

Wed 19

Tues 11

Wed 12

Wed 19

NOTE: The Santa Cruz County Bar Association is a State Bar of California approved MCLE provider #2071 and certifies that these activities have been approved for MCLE credit by the State Bar of California

COMING SOON! Scrabble™ 2014The highly anticipated 5th Annual Scrabble Tournament will take place on Saturday, March 22nd from 8:30 a.m. to 12:00 p.m. Last year we had our best turn out to date. All proceeds are split between the Santa Cruz County Law Library and the Santa Cruz County Office of Education Teen Peer Court Program.

Players, both adults and students (grades 7-12), play three 30 minute games. At the end of each game, scores are tallied and players are matched for the next game. During play, prizes are given for spelling legal words. Food will be provided in between games. Adult registration is a suggested tax deductible donation of $25. Students play free. We hope that you will join us.

As our annual fundraiser, we welcome donations in all amounts. To be kept up-to-date on Tournament plans or to register contact Jack Dilles at [email protected] or contact us at the Santa Cruz County Law Library by email at [email protected], by phone 831-420-2205 or in person. Tax deductible donations: in person, or by sending a check to the Santa Cruz County Law Library.

We hope to see you on Saturday, March 22nd!

Mar

February Calendar, Continued

MCLE

MCLE

MCLE

MCLE





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Everyone likes to help children, and for CASA (Court Appointed Special Advocates) of Santa Cruz County, that’s the reason for their existence. According to CASA’s web site, “CASA is a child’s voice in dependency court, providing advocacy, stability, and hope to children who have been abused, neglected or abandoned.” Over 200 children are helped each year by CASA advocates.

CASA’s National History and StructureWe’ve all heard of CASA, but few have heard of CASA’S beginnings. It all started in 1977, when Seattle Superior Court Judge David Soukup, wanting to help abused and neglected children in his court, put out a request to the community for volunteers who could get to know these children and to make informal recommendations on their behalf.

The grassroots movement quickly grew, and today there is a National CASA Association and California CASA Association (CalCASA), which works with 44 CASA organizations in California. The California program requirements for CASA are established by rule 5.655 of the California Rules of Court, as well as Welfare and Institutions Code sections 100-109, and National CASA Assoc. Standards.

Because CASA advocates are a p p o i n t e d by a judicial officer, CASA works under the umbrella and regulation of the AOC

(Administrative Office of the Courts). The Judicial Council’s CASA Grants Program provides some funding, technical assistance, evaluation and training for CASA programs in California. Yet, because CASA is a non-profit organization, 80% of their funding comes from a variety of other sources which are critical to maintaining their services for children.

Creating CASA of Santa Cruz CountySanta Cruz Judge Thomas Black, along with Judge Bill Kelsay, are credited with being the visionaries and guiding

forces behind the start of CASA Santa Cruz. Jane Stevens, the late wife of Judge Samuel Stevens and Claire McAdams, wife of Judge Richard McAdams, served as President and board member, respectively. Lynn Miller of Youth

Resources Bank remembers that YRB donated $1,000 to help CASA get its start. From its early involvement with Judge Black to the recent presentation of the Gary Proctor Award of Excellence which was established by Judge Robert Yonts, CASA remains closely involved with the judiciary. This year’s Proctor Award was presented to Judge Denine Guy.

CASA quickly grew in Santa Cruz. And why not? Who wouldn’t want to help children in need who through no fault of their own are caught in the dependency care system? A volunteer child advocate is recruited by CASA, thoroughly screened, trained and supervised to act on behalf of one child in the juvenile dependency court system. The volunteers work with lawyers and social workers. They review records, research information and talk with persons involved with the child. By knowing and understanding their child, the advocate becomes the child’s VOICE. From the information gathered, the volunteer presents a report to the judge at each step in the court process. The goal is for an advocate to represent the best interests of the child.


CASA Staff: Front row: Cynthia Druley, Jimmy Cook, Alma RochaBack row: Fred Koehler, Lois Keiser, Cita Rasul, Lorraine Bailey,

Mary Kashmar, Juan Ascencio, Antonina Hines

CASA of Santa Cruz Countyand

Executive Director, Cynthia Druley

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CASA Highlights

There have been big moments in CASA’s history:

2006 - Then-Director Nancy Sherrod created a program called “Building Futures,” designed to help keep kids in school. That program has expanded with grants and trained education staff to assess and help guide a child toward meeting thier educational needs.

2008 - $1.5 million dollars was raised through donations to purchase a Victorian house in Watsonville which has become CASA’s new home, with office space upstairs and “safe places” downstairs where

advocates can interact and enjoy activities with their appointed youth.

2012 - Cynthia Druley began at CASA as Executive Director after she learned of the position from Leola Lapides. Now Cynthia is taking CASA into its next chapter.

CASA SupportersThe CASA Annual Report reads like a Who’s Who of Santa Cruz County, ranging from the Board of directors to donors and volunteers. It is a remarkable list of our County’s humanitarians, philanthropists, financially

generous, and generally good-hearted people. Want to know more about CASA? Go to www.casaofsantacruz.org or www.facebook.com/CASASCruz


F Tuesday, January 14: Dine for CASA at the Shadowbrook Restaurant in Capitola., starting at 5 pm. One-third of food/beverage tab that evening will be donated to CASA. To make your reservation: call Shadowbrook at (831) 475-1511. Be sure to say that you are Dining for CASA.F Thursday, February 13: @ 11:30 a.m. 10th annual For the Love of Children Luncheon at Severino’s Grill, hosted by the Friends of CASA. For more information, or to make reservations, call Mary Kashmar, CASA’s Development Director, at (831) 761-2956, ext. 106F Information Session to learn more about how to become a CASA Advocate are scheduled throughout the year. For specific dates, times and locations, please call Cita Rasul, CASA’s Outreach Coordinator, at (831) 761-2956, ext. 102.

Upcoming CASA Events

CASA Success Storiesby Cynthia Druley

We supported two siblings aged 8 and 10 who entered dependency in 2012; they had never attended school. Their Advocates and our staff worked diligently to have assessments completed and put vitally-needed educational supports in place, including one-on-one tutoring. By the end of the year, the children had progressed from not knowing the alphabet and being unable to count to 20, to reading and doing math at a first to second grade level. The progress that these two children made was extraordinary, and they directly benefited from the interventions and actions of their CASA Advocates. The children are now in a permanent home where educational support ensures that they continue to progress toward grade level proficiency in math and reading. One 18-year-old girl just graduated from high school. When first assigned a CASA Advocate as a freshman, she worked at 4th grade level in math. She was diagnosed with learning differences, and her Advocate ensured that an IEP was put in place. Her Advocate said, “We weren’t sure she was going to graduate with her peers. She started out being tutored twice a week at the Tutoring Club in Watsonville. She took her final math class in the summer and continued to receive tutoring until she completed the class. This year she graduated on time, with her peers.” At age 18, since she still has no permanent home, this young woman has opted to participate in AB12 services for young adults. Her Advocate remains involved, but since she is now legally an adult, she holds her own Educational Rights. Her Advocate continues to support and guide her through the college enrollment and financial aid process. She is also ensuring that she has the best opportunity for success by making sure that tutoring in math and chemistry will be available at Cabrillo.

Cynthia accepting donation of toys for CASA kids from Doug Fischer, VP Santa

Cruz County Bank

http://www.casaofsantacruz.org

http://www.facebook.com/casascruz

http://www.facebook.com/casascruz

Cynthia DruleyCASA Executive Director

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How often is one executive director of a non-profit association asked to interview the executive director of another non-profit? Not so often. Consider then my pleasure when I met Cynthia, a tall, well groomed, sandy haired woman with a friendly smile

Cynthia’s short bio on the CASA web site tells us that

she came to Santa Cruz in 1986 and “can’t imagine living anywhere else.” The bio goes on to say: ”Starting her professional life in the high tech industry, she acquired skills beneficial to her service over the last 20 years in leadership roles at local non-profits. She was a founding board member and Executive Director of Triangle Speaker and managed admissions, outreach, marketing and communications programs for two local non-profit schools. She has a B.A. from Oberlin College and serves on the Board of the Community Foundation of Santa Cruz County. She has an adult son and lives with her partner of almost 20 years who thoroughly enjoys the results of her (Cynthia’s) passion for cooking.”

Now I could stop right here and we’d all know the basics about Cynthia, but I sensed this was a person with a story to tell - a person worthy of getting to know. For instance, while Cynthia was born in Wisconsin, at age two she moved to Florida until 10 yrs of age, then on to Tennessee, Chicago and finally Ohio in 1976 for college. At Oberlin she was allowed to create her own major (a popular thing to do in those days).” Being at the right place and at the right time in American history, women’s liberation and feminism caught her attention. Cynthia was the first person at Oberlin to create a major and receive a degree in “Women’s Studies.”

At the age of 22 she moved to California in the Sausalito and Mt. View area and created that “dream job” for herself in communication, sales and marketing, serving an elite clientele in the computer electronics industry. But it was her move to Santa Cruz in 1986 to work at

By Linda Martin, Executive DirectorSanta Cruz County Bar Association and Lawyer Referral Service

Santa Cruz Operations that changed her life. She joined three women in her book club who all agreed to help each other find “meaningful work.” For Cynthia that work had to be in the non-profit community, specifically working with children.

As Cynthia created her new life she realized her dream of becoming a mother and also met her life partner, Famy (fah-me, a nickname) Diener. The next span of 20 years found Cynthia working and volunteering at Spring Hills School and Kirby School, always excelling at helping the schools grow attendance and funding. In her work as founder and Director of Triangle Speakers, Cynthia went to the Community Foundation for help with grant writing…and there she found a home. She helped the Community Foundation with the Diversity Partnership Advisory Committee, which supported GLBT services. She met and worked with Margaret Leonard and John Laird. After that it was only a matter of time until she became a Community Foundation Board member, eventually finding her way to Leola Lapides and CASA.

At Bar Briefs, we always want to know what folks like to do other than their careers. And for Cynthia, her hobby is tending a 5,000 sq. ft garden. She says: “It’s a spiritual experience for me.” She loves cooking, considering herself an eclectic lover of all types of food. And then there’s travel. She’s been everywhere. Victoria, British Columbia; Africa to build a school; Europe, Mexico, Bora-Bora, Bali and Tahitian islands, with more adventures to come in the future.

Yes, indeed, it seems that Cynthia is once again at the right place at the right time.


When asked about her position at CASA, Cynthia replies, “I can’t think of anything I’ve ever done in my whole life that’s better than this.”

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by SCCBA President Thornton Kontz, Esq.of Thompson, Kontz, and Brenner

President’s Message

Your Bar Board is working towards making the Bar more relevant and beneficial to you and your practice. Over the last year we teamed with the Santa Clara County Bar to give our members access to web-based CLE classes at the same charge as Santa Clara Bar members, we now offer member discounts to local and national businesses, and we hope to be able to provide wifi within the courthouse that attorneys can use during court appearances. We are also reaching out to the younger lawyers in our community by looking into the use of social media for notices and updates on bar related activities, and by waiving bar dues to law students and first-year lawyers.

At the statewide level, the State Bar is proposing changes that will allow paralegals to do more work, without the supervision of an attorney. Washington and Arizona have adopted these models. Obviously, there are concerns about the structure and oversight of this

type of paralegal work. Should you have any questions or comments on this issue, you can contact the State Bar of California. As it more directly affects each of our practices, there is also a proposal to increase the number of hours necessary for continuing legal education. As we have previously pointed out, the State Bar is increasing the number of audits on CLE requirements each year.

We hope that you will all be able to make it on February 7 at our annual meeting which will again be held at Chaminade. We will also be celebrating the 25th anniversary of our current Bar Association. I look forward to seeing you there.

As any past President of the Bar would tell you, we could never function without the assistance of Linda Martin, and everyone who works in the Bar office. I would like to thank them all for their support.

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Mark Your Calendar - Bench-Bar meetings for 2014:January 15, April 16, July 16, and October 15

In Department 5.


Bench Bar Liaisonby Laura Walther, Esq.of Cartwright, Scruggs, Fulton & Waltherand SCCBA Board Member

The last Bench Bar meeting of the year took place on Wednesday, October 16, 2013 in Department One, at12:00, with Presiding Judge Salazar.

Court Technology UpdatePresiding Judge Salazar opened the meeting with a report that all the new sound systems have been installed in all the Santa Cruz Courtrooms. The new video technology will not be installed until 2014.

Judge Salazar confirmed that he had contacted the AOC to inquire about financial assistance with bringing internet access to our Santa Cruz Courtrooms, but learned that no funds were available to assist our court with internet access.

The Santa Cruz Trial Lawyer’s Association agreed to actively raise funds for the installation of internet access in the Santa Cruz Courts.

Civil Trial Courtroom AvailabilityThe Santa Cruz Bar Association requested that the unavailability of court rooms for Civil Trials be addressed. The Bar Association expressed frustration that when a Civil trial is continued because there is no courtroom available, it is costly for the parties who have retained experts for trial

testimony. Judge Salazar believed that the recent Criminal Bar meeting which focused on ways to expedite the processing of Criminal cases will allow the criminal trial system to be more efficient, which will gradually allow the Civil Bar increased access to courtrooms. Attorney Jerry Christensen urged criminal attorneys not to waive time in Criminal trials so that criminal cases can get a trial date and get resolved quickly.

Judge Salazar also encouraged Civil attorneys to “trail” a Criminal trial when their Civil trial is not assigned a courtroom, because Criminal trials often resolve early during the trial. Judge Salazar estimated that a Civil trial would have a 50% chance of getting a courtroom if they were willing to trail a Criminal trial for one to two days.

Judge Paul Marigonda, who is scheduled to become the Presiding Judge in Santa Cruz in 2014, encouraged Civil attorneys to include information about high expert retainer costs in their Case Management Conference Statement, so that he and Judge Connelly can monitor those cases as they proceed to trial.

The next Bench Bar Meeting is scheduled to take place on January 15, 2014, in Department 5.

Wednesday, January 1 ............... New Year’s Day

Monday, January 20 ................. Dr.Martin Luther King, Jr. Day

Wednesday, February 12 .......... Lincoln’s Birthday

Monday, February 17 ............... President’s Day

Monday, March 31 ................... Cesar Chavez Day

Monday, May 26 ...................... Memorial Day

Friday, July 4 ............................. Independence Day

Santa Cruz County Superior Court - 2014 COURT HOLIDAY SCHEDULE

Monday, September 1 .............. Labor Day

Monday, October 13 ................ Columbus Day

Tuesday, November 11 ............ Veteran’s Day

Thursday, November 27 ........... Thanksgiving

Friday, November 28 ............... Day After Thanksgiving

Wednesday, December 24 ....... Christmas Eve - Half Day

Thursday, December 25 ........... Christmas Day


Santa Cruz County Bar AssociationAnnual Meeting

Friday, February 7, 2014

$50 per person Includes Appetizers No Host Bar

at ChaminadeOne Chaminade Lane, Santa Cruz

5:00 to 7:30 pm

Santa Cruz County Bar Association340 Soquel Avenue, Suite 209, Santa Cruz, CA 95062

831-423-5031 • www.santacruzbar.org • [email protected]

RSVP online at www.santacruzbar.org or fill out and return the form below

Attendee Name(s) and Phone Number(s): __________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ Card # _______________________________________________________________________________ Exp. ________________

American Express - Discover - MasterCard - Visa

Name on card (print): _____________________________________________________ Phone: ___________________________

Or check enclosed for $ _______________

John Burton, PresidentPamela Mathiesen, President-ElectThornton Kontz, Past PresidentNathan Benjamin, TreasurerLaura Walther, Secretary

Proposed Slate for 2014 Board of DirectorsTony Condotti, Director at LargeTom Griffin, Director at LargeEmily Trexel, Director at LargeBurleigh Cooper, Director at Large




Past

Judges

Technology

Annual Meeting

Past Presidents

SCCBA 25th AnniversaryCome enjoy the Short Program/Socializing

and View of historical display

FundraisingNewsletter

&

Directory

MCLE

Lawyer Referral Service

13

“The Value of Valuation: Personal Injury Damages

and Closely Held Business Valuation”

Thursday October 10, 2013


Speaker George McLaughlin with SCCBA Director Nathan Benjamin

SCCBA MCLE Seminar

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The following story is based on a real case. The names have been changed and events altered, but the malpractice and ethics lessons remain unaltered. It’s three o’clock on a rainy Friday afternoon and Chance Rambo, the successful 55-year-old trial lawyer, is driving home. He just finished one rough month and expects another. But it’s Friday, after all, and he needs a rest. Worried about his problems, Chance probably doesn’t notice the large semi spinning out of control before it slams directly into him.

Monday morning, Chance finds himself in intensive care, groggy after several hours of surgery. Before drifting back into deep anesthesia-induced sleep, he is able to mutter to his wife, “Who’s taking care of the office?” Chance, who took a chance with his practice, his clients and his family, has reason to be concerned. He never considered what would happen if an emergency prevented him from tending to his practice and fulfilling his client obligations. Chance never considered the importance of succession planning.

It took time, but Chance did recover. However, during his convalescence, he lost all his clients, was sued four times for legal malpractice, had his errors and omissions policy cancelled, and the State Bar took over his law practice and closed it down. Over a one-year period, Chance lost his license to practice law and was on the verge of bankruptcy.

Most lawyers never consider that some unforeseen event might prevent them from handling their

professional responsibilities. But, the reality is that most lawyers will face an interruption in their ability to practice at least once during their careers. The need to effectively address the issue of succession planning is of widespread concern due to the potential for serious harm to clients and a loss of confidence in the legal profession by the general public. It is a challenge that goes to the very core of our profession.

While there is no professional obligation requiring lawyers to have succession planning, prudent lawyers should have a contingency plan in place. Both the Business & Professions Code and the Probate Code provide models for succession planning, but with different outcomes. The Business & Professions Code, primarily concerned with client protection, provides for liquidation of a practice, while the Probate Code offers a procedure for protecting the practice as an asset.

Attorneys owe fiduciary duties to their clients: duties of loyalty and confidentiality, and the duty to render services competently. There is compelling authority for finding that attorney competence includes anticipating events or circumstances that may adversely affect client representation. (Vapnek, et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 2012) 6:24.3.) Arguably, anticipating events that might pose a risk to a client ‘s interests is the essence of practice contingency and succession planning. Practice interruption may affect a lawyer’s fiduciary obligations, and breaching those duties will produce harsh consequences. A lawyer without a succession or contingent plan is likely to face State Bar discipline as well as legal malpractice exposure.

Moreover, a significant interruption in practice continuity may provide a sufficient basis to permit the State Bar to petition the Superior Court to assume jurisdiction over an absent lawyer’s practice under Business & Professions Code sections 6180 and 6190. The court will assume jurisdiction over the practice if it is determined a lawyer is not able to fulfill client obligations because he or she has become

Don’t Wait - Plan NOW For Emergencies


Over a one-year period, Chance lost his license to practice law and was on the verge of bankruptcy.

15

incapable of devoting adequate time and providing the quality of service necessary to protect client interests, and there are unfinished client matters for which no other attorney has agreed to assume responsibility. The State Bar and the Superior Court have the authority to take over management and control, and to close the practice. (Bus. & Prof. Code §§6180.6190.)

While the court may appoint a volunteer attorney, the process often involves a State Bar attorney who takes over and manages the practice until it can be closed. The appointed lawyer can examine files and records obtaining information as to any pending matters that may require attention. He or she notifies the clients, informing them that it may be in their best interest to obtain other legal counsel (Bus. & Prof. Code §6180.5).

Anyone examining files and records of the law practice of the affected attorney shall observe the lawyer-client privilege and make disclosure only to the extent necessary to accomplish the purpose for which the affected attorney was retained. Until new counsel is obtained, the appointed attorney has the authority to control all operations and bank accounts of the practice (Bus. & Prof. Code §6180.5).

A Grim ProspectUndoubtedly, having one’s law practice taken over

by the State Bar (or a volunteer lawyer appointed by the Superior Court) is a grim prospect. While no substitute for an advance succession plan, proceeding under Business & Professions Code sections 6180 or 6190 may be the only hope for risk management and client protection in the event of an unforeseen practice interruption.

Client protection is the goal, but by its very nature, the process runs adverse to client interests and threatens destructive consequences for the lawyer as well as the lawyer ‘s practice and family. However, because the process is under the auspices of the Superior Court, the appointed lawyer will not be liable to a particular client who might suffer harm. (Bus. & Prof. Code §6180.11.)

Under the Business and Professions Code, the purpose is to terminate client relationships and wind down and close the lawyer ‘s practice as quickly and efficiently as possible. Consequently, since the practice is often the lawyer ‘s only

or principal asset, there will most likely be nothing left for either the heirs of a deceased lawyer or for the living expenses of a permanently disabled lawyer. While it is ethical for a lawyer to sell all or most of his/her practice, after the practice is wound down under the Business and Professions Code, there may be nothing to sell. (Cal. Rules Prof. Conduct, rule 2-300.) The protocol under Sections 6180 and 6190 does not contemplate that disabled or incapacitated lawyers often recover from their illness or injury. If the Superior Court acted under those provisions, the recovered or recovering lawyer will face a number of serious obstacles: the lawyer is automatically placed on inactive status and must seek reinstatement to resume practice. (Bus. & Prof. Code §6007 (b) (2).) Reinstatement depends on the lawyer ‘s ability to

prove he or she is competent to practice law, a long, tedious process that usually takes a year or more. Once reinstated, the lawyer must petition the court to terminate jurisdiction over the practice. (Bus. & Prof. Code §6190.6.)

Since nothing was done to preserve the value of the practice, there will be no practice to return to. This prospect alone should motivate practitioners to acknowledge the pressing need to have a contingency plan in place.

Multidisciplinary ProcessAny practice succession plan must be approached as a multidisciplinary process that takes into account lawyers’ unique duties and obligations. Planning should involve various professional advisors, including, for example, an estate planning attorney, an ethics/risk management attorney, accountant, financial advisor and insurance representative.


Having one’s law practice taken over by the State Bar is a grim prospect.

16

Following is a very general illustration of the planning process as well as some critical issues to consider along the way. The first step is to identify someone to act as a successor attorney. The arrangement with the successor will be defined by the nature of the planning attorney’s practice. As a practical matter, several potential successor attorneys should

be made available. Considerations include insuring that the successor attorney understands the magnitude of the role, is willing to undertake that responsibility, and is competent in the planning attorney’s area of practice. (Streit v. Covington and Crowe (2000) 82 Cal.App.4th 44.) Moreover, the successor attorney must be someone the planning attorney knows to be trustworthy, responsible, accountable and, of course, covered by current professional errors and omissions liability insurance.

Finding the right successor attorney is vital. He or she will not only protect the lawyer s clients, but the personal , financial and family interests of the disabled or deceased lawyer by preserving the integrity and value of the law practice. Thus, with a proper plan, a lawyer who has sufficiently recovered from a disability may return to active practice full- or part-time. If that is not possible, the practice may be transferred to another attorney, wound down and closed, or sold.

Advantages of the Probate CodeProbate Code provisions provide for court supervision of a deceased or disabled lawyer’s practice while protecting both the client and the integrity of the practice.

Pursuant to Sections 2468 and 9764, the conservator of a disabled attorney and the personal representative of a deceased attorney may bring a noticed petition seeking the appointment of the successor attorney to be a practice administrator and to take control of the disabled or deceased attorney’s practice. (Prob. Code. §2468 (disabled attorney) & §9764 (deceased attorney); Vapnek, et al., Cal. Practice Guide: Professional Responsibility (The Rutter Group 201 2) 1:380, pp. 1-85.)

If the attorney’s estate planning documents include advance health care directives in the event of disability, the authority granted must be sufficiently comprehensive to allow the personal representative

to speak for the attorney in matter regarding the law practice, including petitioning the Superior Court for appointment of a practice administrator (Prob. Code §2468), thereby avoiding the need to appoint a conservator. While the successor attorney, upon becoming the practice administrator, will be required to post bond before any work may be commenced, the Probate Code has a number of features that are ideal for advance succession or contingent planning.

First, the court will generally appoint the attorney named in a written document prepared in advance by the planning attorney. unless to do so would adversely impact clients or other persons intere ted in the planning attorney ‘s practice or estate. (Prob. Code §2468, subd. (f) and §9764, subd. (f).)

Second. the court may waive notice if it determines that immediate appointment of a practice adminis-trator is required to safeguard the interests of the estate or otherwise would be in the best interests of persons interested in the estate or practice. (Prob. Code §2468, subd. (b) and §9764, ubd. (b).)

Third, duties and powers of a practice administrator will be specifically listed in the court’s order. (Bus. & Prof. Code §6185.) The powers provided a practice administrator under the Probate Code differ dramatically from the duties of a court-appointed attorney under Business & Professions Code sections 6180 and 6190. Specifically, the practice administrator’s duties are geared toward protecting the value of the practice as an asset of the attorney’s estate. Thus, proceeding under the Probate Code will insure immediate action to protect the practice and persons interested in the practice, and will allow the planning attorney to choose in advance the practice administrator and provide advance

A lawyer without a succession or contingent plan is likely to face State Bar discipline as well as legal malpractice exposure.


17

directives and instructions as to how the practice will be maintained.

For example, if the planning attorney became disabled through accident or illness and is unable to practice, but the prognosis is temporary disability and the attorney’s physicians are able to confidently conclude he or she will be able to return to full-time practice in a matter of weeks or months, the practice administrator will be able to petition the court, provide evidence that the lawyer has recovered the capacity to resume practice, and the appointment of the practice administrator “shall forthwith terminate and the disabled attorney shall be restored to his or her practice.” (Prob. Code §2468, subd. (i).)

If the disability is long term or permanent or the attorney has died, the practice administrator has the authority, subject to approval of the personal representative, to create a plan for disposition of the practice. (Bus. & Prof. Code §6185, subd. (a)(7).) This includes the sale or other transfer of the practice in accordance with the attorney’s advance directives. Because the primary goal is to protect the practice and its value, the practice administrator should be authorized to take steps necessary to insure the practice is propitiously maintained, managed or concluded (Bus. & Prof. Code §6185, subd.(a)(6)), including sale of the practice and its good will (Bus. & Prof. C. §6185 subd.(a)(7)). Once services are concluded, the practice administrator shall render an accounting and petition for discharge. (Prob. Code §§2468, subd.(h) and 9764, subd.(h).)

While not intended to be exhaustive, this example demonstrates how the Probate Code can be applied

to an attorney’s advance plan. Of course, there are many vehicles available to attorneys who want to structure an advance plan. The key point is for practitioners to designate successor counsel to assume responsibility for their practices in the event of their temporary or permanent incapacity or death. The powers outlined at Business and Professions Code section 6185 provide a great source for any plan. Court supervision may be avoided, for example, through a trust instrument along with other documents, that wi11 allow for the transfer of management of the law practice to a trustee. (See, Prob. Code §17200(b) (23) & (24) allowing petition to the Superior Court for the appointment of a practice administrator if necessary at a future time.)

A succession plan must be tailored to the uniqueness of the practice. Additionally, the plan must be a fluid and dynamic document that can be utilized as a progressive guide to manage the issues of transition. When a succession plan is in place, it allows the attorney to anticipate and effectively manage any contingency and the practice will be more likely to survive a transitory period of absence.

As ethicist and former State Bar Court Judge Ellen Peck expressed so well, “Our clients, for whom we have worked so hard, deserve something better than absolute chaos if we are suddenly disabled or die. Our loved ones do not deserve the headaches and worry of winding up a law practice at a time when they may be feeling emotionally and financially vulnerable, grieving or themselves incapable of handling the stress of business matters.”


- Willis S. Baughman practices law in Atascadero and is Adjunct Professor at Cuesta College, teaching Ethics and Business Law. He is a former member of the State Bar’s Committee on Professional Responsibility and Conduct. Before entering private practice, he served as VP and Director of Loss Prevention Education for Lawyers’ Mutual Insurance.

Any opinions stated are not intended to be determinative of the standard of care. Practice pointers are solely for the purpose of risk management and are not intended to establish or reflect the standard of care. This article does not contain legal advice.

2013 Willis S. Baughman


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That sounds reasonable to me. Brad Wiles

I will never use it. Jack Jacobson

Not at this time. Jim King

I would not. Wifi is free at the carwash. Wifi is free at that weird little Acai joint across the street from the court house. Wifi is free at the Santa Cruz Diner. And so on…Jesse D. Ruben

I’d be willing to pay a nominal charge for this service. Life is a two way street. You have to give to get.Donald Charles Schwartz

No. The last time I checked, one does not need Wi-Fi to practice law, anywhere. Jeff Bosshard

I think those of us who use the courts ought to con-tribute to the maintenance of the internet system. We discussed this at a recent Trial Lawyers meeting and the consensus was in line with having about 40 of us kick in the $100 yearly until something else pops up. Austin B. Comstock

There is a possibility of installation of WiFi for the practice of law and presentation of evidence by attorneys and the public in the courtrooms at the Santa Cruz courthouse. It is proposed that this service be available to bar members for an annual fee and to non-subscribers and the public

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