contra costa lawyer may 2013

CONTRA COSTA COUNTY BAR ASSOCIATION CONTRA COSTA LAWYER 1

CONTRA COSTA

LAWYER Volume 26, Number 3 | May 2013

The Future of Law Practice

The Future of Law in Admissions to the California State Bar

Self-Study MCLE: Ethical Guidelines for Practicing in a Virtual Law Office

“BYOCR” (Bring Your Own Court Reporter)

MAY 20132

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EDITORIAL BOARDMark Ericsson 925.930.6000Matthew Guichard 925.459.8440Elva Harding 925.215.4577Patricia Kelly 925.258.9300Craig Nevin 925.930.6016David Pearson 925.287.0051Stephen Steinberg 925.385.0644Marlene Weinstein 925.942.5100James Wu 925.658.0300

DEPARTMENTS

6 INSIDE | by Elva Harding

7 PRESIDENT’S MESSAGE | by Jay Chafetz

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

30 ETHICS CORNER | by Carol Langford

32 INNS OF COURT | by Matthew Talbot

34 COFFEE TALK How have the court budget cuts affected you?

35 CALENDAR

38 CLASSIFIEDS

CONTRA COSTA

LAWYERVolume 26 Number 3 | May 2013

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

The official publication of the

FEATURES

THE FUTURE OF LAW IN ADMISSIONS TO THE CALIFORNIA STATE BARby Richard Frankel

IT’S ALWAYS DARKEST BEFORE DAWNby Nick Casper

“BYOCR” (BRING YOUR OWN COURT REPORTER)by Hon. David B. Flinn

8

12

10

GROWING TRENDS IN TODAY’S LEGAL WORLDby Pete Tormey / Felix Antero

14

TOMORROW’S LAWYERby Mark Ericsson

24

SELF-STUDY MCLE: ETHICAL GUIDELINES FOR PRACTICING IN A VIRTUAL LAW OFFICEby Sarah Banola

26

The Contra Costa Lawyer (ISSN 1063-4444) is published 12 times a year - 6 times online-only - by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to [email protected] CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

Richard AlexanderPhilip Andersen

Dean BarbieriAmanda Bevins

Oliver BrayDenae Hildebrand Budde

CCCBA EXECUTIVE DIRECTOR Lisa Reep | 925.288.2555 | [email protected] main office 925.686.6900 | www.cccba.org

2013 BOARD OF DIRECTORS

Mary CareyAlison Chandler Elva Harding Peter HassReneé LivingstonJames Wu

CO-EDITORSHarvey Sohnen

925.258.9300

Nicole Mills 925.351.3171

BOARD LIAISON Candice Stoddard

925.942.5100

COURT LIAISON Kiri Torre

925.957.5607

PRINTING Steven’s Printing

925.681.1774

PHOTOGRAPHER Moya Fotografx

510.847.8523

CONTRA COSTA LAWYER

Jennifer Comages Membership Coordinator

Emily Day Systems Administrator and Fee Arbitration Coordinator

Dawnell BlaylockCommunications

Coordinator

Theresa Hurley Associate Executive Director

Barbara Arsedo LRIS Coordinator

Jay Chafetz Stephen SteinbergCandice Stoddard

Nick CasperAudrey Gee

PresidentPresident-ElectSecretaryTreasurerEx Officio

MAY 20136

W elcome to the brave new world of pro-viding legal services. In case there is any doubt out there, let me assure you, the way legal services are purchased, how they are

delivered, who provides them and how they are priced is undergoing a revolution. In large part, these changes are being driven by the same forces that built Silicon Valley—technological change, innovation and Ameri-can entrepreneurship.

These changes are not just a passing fad. Consider the Reinvent Law Laboratory (www.reinventlaw.com), a project of Michigan State University College of Law which is funded with a substantial grant from the Ew-ing Marion Kauffman Foundation, and is dedicated to advancing entrepreneurship and innovation. Reinvent Law recently held a day-long conference in our own Silicon Valley (also London and Dubai). Lawyers, leaders of online virtual law firms (such as Axiom Law and Direct-Law), journalists, venture capitalists and law professors presented their visions for a more efficient, online, technologically sophisticated law industry that is funded with private investment. An industry where the billable hour is extinct, freelanc-ers replace associates and access to justice is discussed in terms of online dispute reso-lution. This is not your grandfather’s law practice. Mark Ericsson explores our chang-ing industry, both here and abroad, in his article, “Tomorrow’s Lawyer” (pg. 24).

In this issue of the Contra Costa Lawyer, we take a look at how the practice of law is advancing here in Contra Costa County. Access to jus-tice is a primary concern of the Contra Costa bench and bar. The severe budget cuts that our courts have suffered have hit close to home. We have all heard the stories of the rising number of pro per litigants, the long waits to file documents, the long delays for trial dates. In his article, “It’s Always Darkest Before Dawn” (pg. 10), Nick Casper brings light to the impact of budget cuts on our courts and discusses CCCBA’s efforts to reach our state legislators to advocate for more funding. One of the results of the budget cuts is that court reporters are no longer provided in civil, family and probate courts. Our thanks to Judge Flinn for explaining the rules by which litigants may provide their own court reporters (pg. 12).

As first-year associate positions become scarce, more young attorneys are hanging their shingle straight out

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

Finally, with the decline of traditional law firms, more attorneys are working solo or as part of virtual law firms. Sarah Banola considers the ethical implications of virtual law practice (pg. 26).

As you read this issue, I hope you will keep in mind that the Bar Association is a resource to help you navi-

gate these changes. Again this year, we are presenting our popular Law Practice Management Series, which got under-way in April with practical advice on how to develop a business plan and get to work on business development. At this month’s LPMS seminar, Randy Wilson will discuss the ethical issues related to lawyers’ use of social media. Other pro-grams will include practical steps to es-tablishing a modern law practice, issues and best policies around use of mobile devices by your law practice employees, transitioning practices for part-time or retiring lawyers and what you need to know about the Affordable Health Care Act. For more information, call the Bar Association or check online at www.cccba.org.

As Mark Ericsson said in our March issue, these are certainly exciting times, and perhaps a bit uncomfort-able as the new normal takes hold. But with exciting times comes energy, innovation and most importantly, opportunity. Our challenge is to harness the energy and capture the best of these new ideas to build a better, stronger legal system that can well serve our citizens. s

Elva D. Harding is a real estate and business attorney and founder of Harding Legal, dedicated to provid-ing efficient and effective legal service to individuals and small, mid-sized and family-owned businesses. Elva serves on the Bar Association’s Board of Directors and is Chair of the Law Practice Management Series task force. Contact Elva Harding at (925) 215-4577 or www.edhlegal.com.

Elva Harding Guest Editor

Revolutionizing Law

inside


The theme of this month’s edition of the Contra Costa Lawyer—the future of law practice—has me reflecting

about some potential changes in the practice of law and the nature of change itself.

Some people crave change. Oth-ers, like me, work more on a model of “if it ain’t broke, don’t fix it.” Change that we choose can be exhilarating. It can stimulate our imaginations with the promise of a better life. Change that is foisted upon us is an-other matter. The latter may instill resentment, discomfort, even fear. We can often anticipate the chang-

es that the future will bring. Exactly how we will deal with them is less certain. But experience teaches us that deal with them we will.

I am told that there are some changes on the horizon regarding the practice of law. I wonder how they will affect us.

The first is that one day soon a re-quirement for admission to the bar or engaging in practice may be a cer-tain amount of practical experience (see Richard Frankel’s article, pg. 8). This prerequisite may be required to be fulfilled by participation in clinics or specialized classes in law school about the actual practice of law. It may instead take the form of required internships after gradu-ation from law school. I know that one law school in our community, John F. Kennedy University School of Law, is currently debating how to prepare for this coming require-ment, what clinics to offer and how

to balance them with other aspects of the required curriculum.

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

perience before they are admitted to the bar or engage in the practice of law is coming.

A second possible change is what is being called Limited Practice Li-censing. This proposal concerns the possibility of creating a new cat-egory of licensed technicians able to give basic legal advice on routine matters. As I write this, the State Bar is scheduled to hold its first pub-lic meeting on April 11 to discuss this idea. I will quote here from an email that I recently received con-cerning the idea:

“The idea of limited-practice li-censing surfaced at a State Bar re-treat in San Diego in January where the Board of Trustees looked at ways of improving public protec-tion, access to justice and the State Bar’s regulatory functions. Propo-nents of limited–practice licensing see it as a way to improve delivery of legal services to the public, who

often turn to non-lawyers for as-sistance when they can’t afford the services of licensed attorneys. Such a program, supporters argue, would make legal services more affordable, while ensuring consistency and quality. California currently allows non-lawyers to perform some tasks that don’t constitute the practice of law, such as helping people fill out legal forms. Paralegals working un-der attorney supervision, unlawful detainer assistants, legal document assistants and immigration consul-tants registered by county clerks or the California Secretary of State can also assist consumers with some le-gal needs, short of practicing law. Each year, the State Bar receives hundreds of complaints about busi-nesses and individuals practicing law without a license, but it is lim-ited in the action it can take because it does not regulate non-attorneys.”

Are either of these proposed changes going to be dramatic for current or future lawyers? Are they to be feared or welcomed? There is no way to know. The only thing certain in our lives is change, not whether any particular change will ultimately prove to be good or bad.s

president’s message

Jay ChafetzCCCBA Board President

The Changing

Times

MAY 20138

The Future of Law in Admissions

to the California State Bar

The Board of Trustees of the State Bar of California charged the Task Force on Admissions Regulation

Reform with examining whether the State Bar of California should develop a regulatory requirement for a pre-admission practical skills training program and, if so, propos-ing such a program for submission to the Supreme Court.

Most American law schools today follow the traditional Langdellian model of legal education, emphasiz-ing doctrinal study as the basis for teaching students the art of “think-ing like a lawyer.” Over the course of more than a century since this model of legal education took root around the country, law schools have gradually incorporated clini-cal experience and practical skills training into their core curriculum.

The importance of providing new lawyers with opportunities to develop practical skills has been driven, in large part, by the rapidly changing landscape of the legal pro-fession. Due to the economic cli-mate and client demands for trained and sophisticated prac-titioners fresh out of law school, fewer and fewer opportunities are available for new lawyers to gain structured practical skills training early in their careers. Many new lawyers, in fact, are now entering the profession as solo practitioners,

without the solid practical skills foundation necessary to represent clients in a competent manner and with nowhere to turn to build that foundation.

From the standpoint of regula-tory policy, this situation presents serious issues of public protection that cannot be ignored. The record that we have compiled and exam-ined confirms the importance and urgency of a thoughtful policy re-sponse.

Following a series of hearings during which the Task Force took testimony from many practitioners, legal academics, judges, clients, and members of the public at large, and based on a thorough review by the Task Force of the literature on the topic of practical skills training for new lawyers (an extensive body of work going back decades that has repeatedly addressed the same set of questions con-sidered here, and that has time and again

confirmed the need for reform), we now answer the charge given to us in the affirmative. In our view, a new set of practical skills require-ments focusing on competency and professionalism should be adopted in California in order to better pre-pare new lawyers for successful transition into law practice, and many of these new requirements ought to take effect pre-admission, prior to the granting of a law license.

The draft Task Force recommen-dations are:

• Pre-admission: A practical skills training requirement fulfilled pri-or to admission to practice. There would be two routes for fulfillment of this pre-admission practical skills requirement: either in law school, where 15 units of course work fol-lowing the first year of law school must be dedicated to developing practical skills and serving clients, or, alternatively, employment in a

by Richard A. Frankel


State Bar-approved clerkship or ap-prenticeship program of at least six months in duration.

• Pre-admission or post-admis-sion: An additional practical skills training requirement, fulfilled ei-ther at the pre- or post-admission stage, where 50 hours of legal ser-vices are specifically devoted to pro bono or low bono service. Credit to-wards those hours would be avail-able for “in-the-field” experience under the supervision and guid-ance of a licensed practitioner or a judicial officer.

• Post-admission: Ten additional hours of Mandatory Continuing Legal Education (MCLE) courses for new lawyers, over and above the required MCLE hours for all ac-tive members of the State Bar, spe-cifically focused on practical skills training. Alternatively, credit to-wards these hours would be avail-able for participation in mentoring programs.

The recommendations of the task force incorporate the thinking and findings of recent articles which tend to focus on the following facts:

• Law school admissions are gener-ally down about 15 percent.

• Law school graduates frequently incur debt in excess of $100,000.

• About 50 percent of law school graduates are obtaining full time employment in the legal profession.

• More and more new lawyers are hanging out their shingle and are joined by experienced lawyers whose firms have been downsized.

• Except for Internet based legal ser-vices (growing at about a 30-35 per-cent rate), traditional law firms are “hanging on.”

• Legal services for the poor and middle class continue to be largely either not available or cost prohibi-tive. Ask any judge about the vol-

ume of self-represented litigants in civil proceedings.

• Court budget reductions have ad-versely impacted the administra-tion of justice.

• Private ADR services have created a broader market share of the civil dispute business for those that can afford such services.

• The practice of law has dramati-cally changed over the past 10 years through the use of technology.

The Task Force is comprised of more than 20 individuals from pri-vate attorneys, public attorneys, in-house counsel, law school deans and professors and members of the judiciary. The Task Force has been meeting over the past year. The last meeting was in Los Angeles on April 23 and the final meeting will

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

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

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

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

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T he California judicial system is in dire financial straits. It is not hyperbole to say that the current situation has

reached a crisis level. This is un-doubtedly not news, as it has been keenly felt by practitioners, judges, court staff and affected citizens alike.

Since 2008, the budget of the California court system has been slashed by $1.2 billion, a cumula-tive reduction of over 40 percent. As Chief Justice Tani Cantil-Sakauye emphasized, spending on the judi-cial branch now amounts to only 1 percent of the state’s general fund (down from a historical 2 percent), a pittance to meet the needs of 38 mil-lion Californians. Statewide, courts have eliminated over 2,000 staff po-sitions, closed 175 courtrooms and shuttered 61 courthouses. The op-erating hours of filing clerks have been reduced, courtrooms routinely no longer provide court reporters in civil matters and most counties have been forced to reluctantly eliminate specialty courts and vital services, such as alternative dispute resolution programs and self-help services previously offered to pro per litigants. Work furloughs and judicial vacancies abound.

The real-world effects of these cuts have been nothing less than devas-tating. Filing lines at county clerk windows—traditionally, a minor nuisance—now can become all-day endeavors. Splintered families face daunting delays in reunification proceedings. Domestic violence victims are denied expeditious pro-cessing of their claims for civil pro-

tection. Business disputes, some in-volving millions, or even billions of dollars, have grinded to a near-halt, resulting in unknown economic costs. Unlawful detainer matters are delayed, resulting in uncertain-ty to both tenants and landlords. Civil fees have been categorically increased to alleviate shortfalls, raising access to justice concerns, particularly for the state’s most vul-nerable populations.

Contra Costa County has been far from immune from the financial pinch imposed on the judicial sys-tem. The county’s Superior Court has absorbed nearly $14.5 million in cuts since 2010, and this year $8 million in reserves that the court had prudently amassed were swept up by the state. All told, the county’s judicial budget has been slashed by 25 percent. In response, the county was forced to take on a range of austerity-type measures, including closing the Concord courthouse, reducing the Walnut Creek court-house’s operations to traffic cases only, eliminating or reducing sev-eral specialty courts, laying off five of eight commissioners and con-solidating much of the county’s ju-dicial operations to Martinez. Like other courts throughout the state, Contra Costa County Superior Court now is faced with absurdly jammed dockets and overworked judicial of-ficers and staff. Delays in hearings and trial dates are unavoidable, and residents in East and West coun-ties now must travel to Martinez to have their family and juvenile law matters heard due to courtroom clo-sures in Pittsburg and Richmond.

Last year, in the face of this gloomy judicial picture, a large al-liance of California lawyers from both sides of the bar, called the Open Courts Coalition (OCC), initi-ated an effort to give a voice to the oft-neglected third branch of gov-ernment, as well as to the 38 million residents who depend on the courts. The OCC encouraged participation by counties across the state to join the collective effort of reaching out to local lawmakers to seek a resto-ration of funding so that the courts could resume functioning on a ba-sic level of service.

The Contra Costa County Bar As-sociation heeded the call of the OCC. In the beginning of 2012, the CCCBA created the Pro Bono/Access to Jus-tice Committee, on which I serve as Chair, as a means of advocating for the beleaguered courts on the local level. In April of last year, we co-sponsored and participated in a court funding rally on the steps of San Francisco City Hall, where sev-eral hundred lawyers, judges, court workers and citizens convened to speak out on the budget crisis. State Attorney General Kamala Harris, Justice Carlos Moreno (Ret.) and other notable judicial figures de-livered stirring sermons regarding the critical importance of the state’s court system, and how the cuts

It’s Always Darkest Before Dawn

by Nick Casper


have crippled the judiciary’s ability to meet the needs of Californians.

In 2012, members of the CCCBA Access to Justice Committee also met with the state lawmakers who represent portions of Contra Costa County, including state Assembly members in their District Offices, and Senators Mark DeSaulnier and Loni Hancock at the State Capitol. The purpose of the meetings was simple: to paint a picture of how the severe judicial budget cuts were ad-versely affecting the administration of justice for Contra Costa residents (who also represent the lawmakers’ constituencies).

This year, the Access to Justice Committee has renewed the strug-gle to reach the hearts and minds of lawmakers. Committee members Elva Harding, Samantha Sepehr, Peggy Bristol-Wright and I are in the process of organizing meetings with Contra Costa legislators to once again express the debilitating effects of the budget cuts, this time with the county’s significant court closures and reorganizations of 2013 in mind. The hope is that the CCC-BA’s legislative efforts will add to the growing chorus across the state to impress upon lawmakers that the cuts over the last five years have gone too deep, and that the courts are on the brink of reaching a break-ing point. Governor Brown’s revised state budget will be issued in mid-May; it is hoped that California leg-islators restore critical funding to the courts and convince Governor Brown to leave these funds alone with his “blue pencil.”

Locally, the CCCBA is not acting alone in this fight to restore much needed court funding. Presiding Judge Barry Goode and other Contra Costa judges have taken a proactive role in meeting with state lawmak-ers to articulate the difficulties faced by judicial officers, court staff and litigants under the current budget-ary constraints. Judge Goode serves as the Legislative Outreach Chair of the Trial Court Presiding Judges

Advisory Committee (which is com-prised of all the presiding judges across the state), and he recently testified before the Budget Subcom-mittees of the state Assembly and Senate on the budget issues.

The county’s Superior Court has also implemented creative strate-gies to help address the docket log-jam created by courtroom closures, including that of the civil discovery commissioner. The court invited local practitioners to volunteer to serve as temporary judges to handle small claims and unlawful detainer matters or to serve as civil discovery facilitators. The response by local lawyers has been encouraging, and both of these pilot programs are in full flight.

A silver lining of the court fund-ing crisis is that it has fostered greater collaboration between the bench and bar, as well as by attor-neys on opposite sides of the ”v.,” to discover novel solutions to the for-

midable challenges created by the underfunded judiciary. It is hoped that the court system currently in-habits that ”darkest hour just before the dawn.” The CCCBA, as well as the Contra Costa County Superior Court, are making a concerted ef-fort to help ensure that the dawn of restored court funding is close at hand. s

Nick Casper is the Treasurer of the Contra Costa County Bar Associa-tion. As an associate with Casper, Meadows, Schwartz & Cook since 2007, Nick has been actively in-volved in litigating many of the firm’s largest cases involving cata-strophic injury, wrongful death, medical malpractice, employment discrimination/harassment, and civil rights violations. Nick has also taken several of the firm’s cas-es to jury trial.

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Perhaps the single most sig-nificant effect of the state-wide reductions to court budgets, as they apply to

civil, family and probate cases, is the inability of the courts to continue to maintain a court reporter staff for those cat-egories of cases.

As the need of a record of proceedings in many types of matters is, of course, important, the obvious step is to allow the parties to provide their own reporters. That would appear simple until one re-views the statutory provisions re-garding court reporters and consid-ers the need that when the court certifies a record to a higher court the applicable provisions must be regarded. It thus became necessary for our civil, family and probate judges to formulate a process that allows for a ”certifiable” record.

Using extensive work done by the Los Angeles Superior Court on the topic, our judges have put together a protocol that hopefully will ac-commodate all concerned. Our plan is based upon the expectation that for the vast majority of cases needing court reporting, the parties will stipulate as to the selection of the reporter. Things will work most smoothly if, based upon civility, a party asked to stipulate will do so absent a bona fide reason for not doing so.

The specific provisions for report-ing by stipulation are contained on the court’s website.1 From the home page, scroll to “Information and

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

In a nutshell, the provisions of the Government Code are such that

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

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

As it is important that our court avoid favoritism, we do not make recommendations on reporters to be used for private reporting.

The court will protect parties who desire reporting and can-

not obtain a stipulation from their opponent, although so

far our experience has been that this is a rare occur-

rence. Due to the Govern-ment Code provisions, a reporter

must then be chosen from the list of

by Hon. David B. Flinn

“BYOCR”(Bring Your Own Court Reporter)


reporters that have been vetted and approved by the bench. Making these selection arrangements can be time consuming and may result in a delay of the proceedings.

Where matters might take sev-eral days, we require that a single reporter is used. Good cause will be required to obtain permission for an exception. All financial obligations lie with the parties—there is no court reimbursement even in cases where one party has obtained a fee waiver. Stipulating parties should therefore be clear on their interpar-ty arrangements at the outset.

The judges very much appreciate the cooperation that we have re-ceived from the bar in undertaking this substantial change in our nor-mal proceedings. We look forward, with you, to better budget times which would allow us to reinstate court-provided reporting in all judi-cial proceedings. s

1 http://www.cc-courts.org/

2 http://www.cc-courts.org/_data/n_0046/resources/live/rule24_CourtReportingSer-vices.pdf

3 http://www.cc-courts.org/_data/n_0046/resources/live/cv310_Stip&OrderToUseCSR&RptrAgreement.pdf

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Matt Tothas in

Pedder, Hesseltine, Walker & Toth, LLP

oldest partnership in Contra Costa County(since 1955)

p 925.283-6816 • f 925.283-36833445 Golden Gate Way, P.O. Box 479

Lafayette, CA 94549-0479

AV Martindale-Hubbell

MAY 201314

M ore demanding clients, new technologies and globalization are tak-ing an irreversible toll

on the traditional law firm busi-ness model. Consequently, newer business models are cropping up, a development which offers more op-portunities but also more risks for lawyers willing to conduct business differently. This article explores some of the trends in the profession and how they have affected our strategies for our law practice.

Trends in Legal Services

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

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

Focus on Clients

Even though today’s typical cli-ents are better informed, the reality is they still have that underlying fear that caused them to seek le-gal help in the first place. This fear might be of losing everything in a divorce, risking criminal convic-tion or that a new business venture might fail. The opportunity for a vi-able practice starts with recognizing this underlying fear, understanding it fully and addressing it compe-tently.

For example, in our practice it is not uncommon for a client to call with questions about starting a new business, only to call back months later, after using an online incorpo-ration service, with questions about how to operate this new business. Many lawyers might take umbrage at this, but we recognize that it isn’t just a new legal entity that the cli-ent needs, but the assurance that they are operating the new busi-ness properly—because of their un-derlying fear that they may have overlooked something that can end up hurting them. Accordingly, the opportunity for a law firm isn’t try-ing to sell the formalities of corpo-

Growing Trends in Today’s Legal World

by Pete Tormey and Felix Antero

The pessimism, however, is partly misplaced because the fact is, the underlying demand for legal ser-vices has not abated much and is in fact growing. This demand for legal services is being met through “The Great Upender”—the Internet—where cheap-to-free legal services and information are overly abun-dant.

This overabundance of free (albeit sometimes questionable) online information has taken a lot of the mystery out of the attorney-client relationship and made self-help a viable alternative for many legal consumers. As a result, prospective clients are better informed than be-fore and searching for value-based legal services instead of the tra-ditional hourly model where the lawyer acts as the knowledge gate-keeper.

Unfortunately for many lawyers, but fortunately for the brave do-it-yourselfers, the quality of online resources will continue to improve and online services such as Rocket Lawyer and LegalZoom will hone their business models to better meet

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rate filings but instead to focus on the higher value-added service of understanding and allaying the cli-ent’s fear.

In business and commercial law, the changes are more pronounced but the opportunities are also big-ger and better. Clients want their lawyers to provide more value in-stead of merely being another “cost center.” The corporate client is look-ing towards their lawyers more for problem-solving and business strat-egy than in the past; hence, lawyers with business degrees and substan-tial real-world business experience will provide more value to clients. The rise in joint MBA/JD programs reflects this trend.

Thus, even though our clients have not specifically asked for law-yers with business experience, as a firm and individual lawyers, we emphasize our practical business experiences early on in our client relationships. Letting the clients

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

Focus on Growth Areas

Starting a law firm today requires an examination of growth areas where it is worth investing scarce marketing resources. Despite the gloomy outlook by many in the profession, there are in fact ample growth areas in law. These areas include regulatory compliance, in-ternational transactions and intel-lectual property, to name just a few. Regulatory compliance is particu-larly promising because as the glob-al economy matures, the push for increased regulation will also boost demand for sophisticated business lawyers. In addition, we are creat-ing a slew of new regulations in the financial, medical, environmental and energy industries which will

open doors to more opportunities.

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

MAY 201316

Growing Trends,

cont. from page 15

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sia, Philippines, UAE, Colombia and Peru, which are also looking for le-gal practitioners who know how to put together deals.

Another noteworthy example is Qatar, which has set a goal to be an international commercial dispute resolution center open to parties from all over the globe. Qatar’s court is operating under “international common law,” which allows judges to draw from precedents across the common law world. Their bench in-cludes a former Lord Chief Justice of England and Wales, a former Chief Justice of India and a former Austra-lian federal court judge. Qatar and other forward–looking countries recognize that there is an unmet demand for international legal dis-pute resolution and are working to capitalize on it.

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

Cash is Still King

While many news outlets covered the Dewey collapse with ill-masked

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

Relationships Are Key

Regardless of new technologies and low-cost legal service providers, the attorney-client relationship will always be based on building and keeping the client’s trust. The cli-ent’s trust depends not only on how well you provide them your ser-vices, but also how good a resource you are overall. This means being responsive, staying up-to-date and cultivating a good referral network to handle cases that are beyond your capabilities or provide other know-how for the client’s business.

Although new technologies and social media are affecting profes-sional interactions, they are not a substitute for building a good network. A good network relies on knowing other lawyers well enough to trust your client with them. While there is no easy for-mula for assessing another lawyer, the more time you spend with the lawyer, the better feel you will have for their expertise. Thus, the usual advice for networking, such as us-ing LinkedIn or going to mixers, is not sufficient to develop this level of trust.

For us, this means spending con-siderable time with other attorneys, especially those not in our practice area. That is why we go out of our way to create or sponsor events


where lawyers come together for roundtable discussions about dif-ferent areas of law so we can get a chance to interact with them, eval-uate them and develop mutually beneficial relationships with them.

The legal profession is undergo-ing massive structural changes that will be felt globally. Firms who are doggedly focused on clients, willing to venture into the growing geo-graphic regions and fields of prac-tice, able to keep their expenses low and build strategic relationships, are no doubt going to succeed. We are hoping and working hard to be one of them. s

Pete Tormey manages the Intel-lectual Property Group of Antero & Tormey LLP. He has a BS in Elec-trical Engineering from San Fran-cisco State University (Magna Cum Laude), an MBA from St. Mary’s of California (Marketing) and a JD from John F. Kennedy School of Law. His experience includes over 15 years of international sales and marketing and starting several technology companies.

Felix Antero manages the In-ternational Transactions Group of Antero & Tormey LLP. He has a bachelor’s degree in Economics from the Ateneo de Manila Univer-sity where he was a Far East Bank scholar. He earned his JD at John F. Kennedy School of Law. Before practicing law, he was involved in the international banking, lending and insurance industries.

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— WANTED —Will/Estate Contests

ConservatorshipsYou handle the estate, we do the contest. Cases, except conservatorships, often handled on a contingent fee basis, but can be hourly. Referral fee where appropriate.

Pedder, Hesseltine, Walker & Toth, LLP

oldest partnership in Contra Costa County(since 1955)

p 925.283-6816 • f 925.283-36833445 Golden Gate Way, P.O. Box 479

Lafayette, CA 94549-0479AV Martindale-Hubbell

MAY 201318

LAW PRACTICE MANAGEMENT SERIES 20133rd Tuesday of Each Month | 4:30 - 6 pm

JFK University | 100 Ellinwood Way, Room S312 | Pleasant Hill

DATE TITLE DESCRIPTION CREDITContactTheresa Hurley for a recorded version.

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May 214:30 - 6:30 pm

Social Media and Legal Ethics

Practical advice on how to engage in social networking with prospects and clients within the ethical parameters required by the California Rules of Professional Responsibility. Stay after for a hands-on demonstration of effective uses of social media.

Speaker: Randy Wilson, Esq., DSD Law Site Solutions

1 hr General/0.5 hr Ethics

June 184:30 - 6 pm

Creating a Modern Law Practice

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MAY 201320

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The Solo Section meets for a networking breakfastthe third Wednesday of even-numbered months. Free

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MAY 201322

The Women’s Section

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MAY 201324

by Mark Ericsson

Joe is no ordinary Joe. He owns a high-tech company. Today he is hiring a marketing direc-tor. Joe goes to his computer

and types “employment agreement marketing director” into Google. He finds templates and articles outlin-ing the process and the issues. He drafts his agreement using one of the templates. However, he has a few issues that he feels require more expertise, experience and an under-standing of his business. He emails the contract to his lawyer with the specific issues that he would like addressed. Is this where the practice of law is headed?

If Joe were one of the larger Brit-ish firms, he could have dialed into a collaborative effort by law firms that provide a computer program with a decision tree, which when

filled out, produces a final draft of an employment agreement. English firms in this case act as the experts in a computer-programming proj-ect. Through Listservs, legal con-sumers ask others how they have solved their problems and compare costs. Is this where the practice of law is headed?

The agent of change is the cost of legal advice and representation. The practice of law is going to change. Legal advice is too expensive. Law-yers are pricing themselves out of the market. Twenty-five years ago, the average partner pay at the nation’s top 100 law firms was 11 times higher than that of the aver-age American worker. Today, it is 23 times higher. The 2010 median pay of a lawyer was $112,760 per year. Interestingly, the U.S. Bureau of La-

bor Statistics finds that when asked about work related experience or on-the-job-training, the response is “none.” As lawyers, we find every day that we have to tell clients that they can’t afford our services or we find that they cannot pay us once the services are provided.

Who are the future clients who will be able to afford us? This is a question little addressed in law schools. There are basically large businesses, small businesses such as Joe’s business, the wealthy and the rest of us. It is fair to say that the first three categories are and will con-tinue to become more sophisticated consumers of legal services and the fourth will lose access.

The nature of recessions is chang-ing. Until 1981, the country snapped out of a recession in six months. In

Tomorrow’s Lawyer


1990, it was 15 months; in 2001 it was 39 months. We are currently 64 months into what is a recession for those employed and a depression for those who are not. Com-panies have remained profitable by cutting costs, and legal costs have been at the top of their lists. In-house counsel budgets have been cut by 50 percent in some cases. About half of corporate counsel and private attor-neys believe the recession will permanently change the way business is done in the legal industry. Companies are becoming more sophisticated when they go outside for legal representation. This has led to increased consol-idation among the largest firms and the layoff of 9,500 lawyers in 2009 and 2010. That’s one in every 76 lawyers. The largest law firms are not addressing the new norm (more value for less fees) and as a result are losing busi-ness. I would expect a trickle-down effect to our smaller firms.

Wealth in this country is becoming more concentrat-ed. The top 1 percent owns 40 percent of the wealth, or 225 times the wealth of the typical American. The ratio of CEO annual compensation for the Fortune 500 com-panies to that of the typical worker is 234 to one versus 16 to one in Japan. Income growth for the bottom 90 per-cent has been 15 percent over the past 30 years. For the top 1 percent it has been 300 percent. Lawyers routinely raise their rates around 5 to 10 percent per year. This ef-fectively eliminates the bottom 90 percent from repre-sentation. The number of people that can afford justice is rapidly diminishing.

The wealthiest 1 percent can afford representation and will be willing to pay the premium for lawyers that can deliver (the Boies of the world). However, with money for expertise, one must assume that they, as well as the large corporations, will become more sophisticated con-sumers of legal services.

Any analysis of the markets leads one to conclude that the price of legal advice and representation will come down. We will no longer be able to charge for work for which we are overqualified to do. Clients are driving change by pushing efficiency and demanding the use of the latest technology. Clients want to see value and are forcing firms to unbundle. Clients will seek lower-cost service providers including online services.

Throughout the world, countries are allowing the practice of law to evolve. England (from where our law evolved) and Australia allow non-lawyers to provide many services considered legal. In America, we have LegalZoom, Axiom Law, Clearspire, Rocket Lawyer, Practical Law Company, Huron, Mindcrest, Pangea3 and Novus Law. Online dispute resolution has proved tremendously successful. New York City, using Cyber-settle, saved $11.6 million during its first year of a dem-onstration project. SquareTrade, eBay’s preferred dispute resolution provider, offers two services: a free web-based

forum which allows users to attempt to resolve their dif-ferences on their own, or if necessary, the use of a profes-sional mediator.

Qatar is spending billions on developing a legal sys-tem that it hopes will facilitate incoming capital flows. Our position as the reserve capital of the world is based in part upon the availability of our courts and the stabil-ity of our statutory and case law. Today, we are disman-tling our courts for lack of funds. Tomorrow’s litigators are going to have to navigate a world of less access and alternative dispute resolution options. Interestingly, American law students increasingly want to go to work for the government, a trend not seen elsewhere.

In Joe’s case, lawyers provide three value-added ser-vices. We are the trusted advisor who provides custom-ized advice for our clients based upon our knowledge of their situations, the provider of risk management com-pliance and the agent for dispute resolution and litiga-tion. This is particularly true in risk management, which receives little emphasis in most law firms. We need to learn how to do each task most cost-effectively. We need to develop practices where Joe seeks the advice, experi-ence or expertise that he cannot find online. We need to become experts in areas not widely understood. We need to become online providers, and probably avail-able 24 hours a day or we risk losing our clients. And in this world of connectivity where the reply button is all too alluring, we need to become experts in quality con-trol.

Here in Contra Costa County, we have a million resi-dents. One out of every 250 (3,938) residents is a lawyer, versus one out of 400 nationwide. Forty-two percent of us (yes, even me) are over 55. Twenty-eight percent have been in practice for less than five years or are under 35. I suspect that our county, which is primarily white and wealthy, will not be on the leading edge of change. But there is no question that the next 20 years will not mir-ror the last 20 years. It certainly gives us pause to think. s

This article was adapted from a presentation made by Dick Fran-kel to the Contra Costa County Bar Association Board of Directors.

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

MAY 201326

Virtual law practice is be-coming increasingly popular as an alternative to the traditional physical

law office. It typically involves the use of a secure internet portal to render legal services to, and com-municate with clients.1 Advocates emphasize the decreased real estate and overhead costs, increased pro-ductivity and the work-life balance that may result from lawyers work-ing from home. Critics stress the need for in-person client and team meetings to collaborate and solve complex legal problems. As shown by the recent stir created by the Ya-hoo! no-work-from-home policy, management concerns and the ef-fect on employee morale are hotly contested issues. It is clear, howev-er, that lawyers practicing in a vir-tual law office need to comply with employment laws and the rules of professional conduct.

Employment law issues arising from operation of a virtual law of-fice are similar to those arising from telecommuting policies. Virtual law firms should implement practices to address: (1) methods for track-ing and reporting hours worked, meal and rest breaks; (2) preserva-tion of confidential information; (3) employee privacy expectations, including monitoring computer us-age and ownership of computers or other equipment; (4) harassment; and (5) workers’ compensation and safety issues.

Virtual law practitioners must also consider the following ethical issues:

California’s Rules of Profes-

sional Conduct Apply to

Virtual Law Offices

No California Rule of Profession-al Conduct specifically addresses lawyers who practice in virtual law offices. Rather, the same rules of professional conduct that apply to attorneys practicing in traditional law firms apply to attorneys prac-ticing in a virtual firm.2 The appli-cation of the rules, however, raises unique issues for virtual law practi-tioners, particularly in regard to the following California Rules of Pro-fessional Conduct:3

• Rule 1-300 (Unauthorized Prac-tice of Law).

• Rule 1-400 (Advertising and So-licitation).

• Rule 3-100 (Confidential Informa-tion of Client).

• Rule 3-110 (Failing to Act Compe-tently).

• Rule 3-310 (Avoiding the Repre-sentation of Adverse Interests).

• Rule 3-500 (Communication).

by Sarah Banola

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Ethical Guidelines for Practicing

in a Virtual Law Office


California lawyers and courts may also look to the ABA Model Rules and ethics opinions for guidance on practicing in a virtual law firm.4

Although the Model Rules do not specifically address virtual law firms, in August 2012, the ABA approved recommendations by the Ethics 20/20 Commission to amend the Model Rules to address issues regarding a lawyer’s use of technology, including:

• Model Rule 1.1 (revising Comment [8] to confirm that the duty of competence includes “keeping abreast of ... the benefits and risks associated with relevant tech-nology”).

• Model Rule 1.4 (revising Comment [4] to reflect chang-es in communication technology).

• Model Rule 1.6 (adding new paragraph (c) requiring lawyers to undertake reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or access to, confidential client information and adding comment [18] regarding safeguarding confidential client infor-mation).

• Model Rule 1.18 (revising the rule and Comment [2] to clarify when electronic communications give rise to a prospective client-lawyer relationship).

• Model Rule 5.3 (revising the title of rule and Comment [2] and adding Comments [3]-[4] to clarify a lawyer’s

duties when outsourcing legal work to non-lawyer service providers).

• Model Rule 7.1, Comment [3], Model Rule 7.2, Com-ments [1]-[3], [5] and Model Rule 7.3, Comments [1], [3] (involving revisions that address a lawyer’s use of technology for client development).

In addition to the Model Rules, several state bar asso-ciations have issued formal ethics opinions addressing ethical issues that arise from a lawyer’s practice of law through a virtual law office.5

Formation of Attorney-Client Relationship

and Client Intake

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

MAY 201328

Duty of Confidentiality

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

Duty of Competence

In addition to ensuring that confidential informa-tion is protected, the lawyer’s duty of competence includes implementing data backup systems for the paperless law office. In addition, the lawyer must super-vise subordinate attorneys and staff who may be working in various physical locations to ensure compliance with the lawyer’s professional obliga-tions.9

Duty of Communication

Although the duty to keep the client “reasonably in-formed about significant de-velopments” and “to promptly respond to reasonable requests for information“10 may seem easier through electronic communication, the attorney should ensure that the client is receiving and understanding the information exchanged via the website portal.11 In certain circum-stances, phone conferences, video-conferences or in-person meetings would be prudent.

Duty of Candor in Advertising and Marketing

To avoid claims of misleading or false statements un-der CRPC 1-400 and corresponding State Bar Act provi-sions, lawyers should disclose to potential clients the nature and composition of the firm’s virtual law office, relevant practice areas and the jurisdictions where its lawyers are licensed to practice.

Avoiding Unauthorized Practice of Law

Because a virtual law firm’s audience reaches across jurisdictions, lawyers must avoid the unauthorized practice of law when responding to requests from po-tential clients outside the jurisdictions where the law-yers are admitted to practice. In California, engaging in the unauthorized practice of law is not only a basis for discipline, it is a misdemeanor.12 What constitutes the practice of law is a fact-specific determination that is the subject of California case law.13

Under the Model Rules, Rule 5.5(b)(1) prohibits a law-yer from establishing a “systematic and continuous pres-ence” for the practice of law in a jurisdiction in which the lawyer is not admitted to practice. While Comment [4] provides that a lawyer’s “presence may be systemat-ic and continuous even if the lawyer is not physically present” in the jurisdiction, the rule provides no other guidance on when virtual practice is sufficiently “sys-tematic and continuous” to require that the lawyer be licensed in that jurisdiction.

On June 19, 2012, the Ethics 20/20 Commission published an “issues

paper” proposing several op-tions to clarify when virtual practice in a jurisdiction is “systematic and continuous,” including identifying rel-evant factors that lawyers and disciplinary authorities should consider and refer-ring the issue to the Stand-ing Committee on Ethics and Professional Responsi-bility for an ethics opinion. Although the Commission received substantial feed-back, it ultimately decided to

defer the issue as virtual law practice and the pertinent technology continues to develop.14

Virtual law practice offers many potential benefits, but also presents distinct issues regarding a lawyers’ compliance with the existing rules of professional con-duct. While California’s rules of professional conduct may not keep pace with the evolving nature of virtu-al law practice, virtual law practitioners need to stay abreast of changes in California’s rules, and should re-main alert to new ethics opinions, amendments to the Model Rules and law practice management standards15 addressing virtual law practice. s

Virtual Law Office,

cont. from page 27


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

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

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

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

5 See, e.g., Cal. State Bar Opn. 2012-184; Penn. State Bar Opn. 2010-200; Florida State Bar Opn. 00-4.

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


8 Id.

9 Id.

10 CRPC 3-500


12 Bus. & Prof. C. § 6126.

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

14 ABA Commission on Ethics 20/20, House of Delegate filing (Feb-ruary 2013) available at: http://www.americanbar.org/content/dam/aba/administrative/ethics_2020/20121112_ethics_20_20_overarching_report_final_with_disclaimer.authcheckdam.pdf.

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

Sarah Banola is a litigation attorney at Cooper, White & Cooper LLP’s San Francisco office. Ms. Banola repre-sents lawyers and law firms in matters related to legal ethics, legal negligence, attorney-client fee disputes, professional discipline, conflicts of interest, disqualifi-cation motions and law firm break-ups. Ms. Banola is a contributing editor to the professional respon-sibility chapter of the California Practice Guide on Employment Lit-igation and the legal malpractice section of the California Practice Guide on Claims and Defenses (The Rutter Group, a division of West, a Thomson Reuters business, 2012). She also serves as Secretary of the Bar Association of San Francisco’s Legal Ethics Committee.

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MAY 201330

ethics corner

A search on the business rating site Yelp for at-torneys in San Francisco yields 5,681 results. Al-

though Yelp and similar sites are probably best suited for restaurants and night clubs, many people use the site to review professionals. These reviews influence potential clients. The Lawyerist.com, a blog for legal professionals, recently polled a thousand people with the question: “When you need to find a specialty lawyer, how would you start your search?” Twenty-two per-cent said that they search Google or another search engine, 10 percent said that they “look elsewhere on the internet” and 2 percent said that they “ask on my favorite social net-work.”

Yelp is not the best indicator of an attorney’s ability—but most people using Yelp don’t know that. Most experiences with Yelp reveal that generally bad restaurants get bad reviews and good restaurants get good reviews. However, some plac-es of business and now some attor-neys either pay people to write good reviews or ask their dearest friends to rate their lawyering skills online. Thus, inexperienced lawyers who are savvy with social networking can have outstanding reviews and

more seasoned, but less Internet-savvy, attorneys can have bad re-views and not even know about it. In some instances, attorneys might be rated for things that have noth-ing to do with their legal abilities. There is really no way to tell why someone rated a particular attorney with high marks.

However, the troubling question is, what can a lawyer do to fight back when he or she receives a neg-ative review on Yelp? According to some ethics experts: not much. In the Los Angeles County Bar As-sociation’s Formal Ethics Opinion #525, the authors concluded that

any public response to a negative review online must not “disclose confidential information,” must “not injure the former client in any matter involving the prior represen-tation” and must be “proportionate and restrained.” The part about not disclosing confidential information can leave attorneys at a huge disad-vantage when responding online.

Because opinions are protected by the First Amendment, clients are

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

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

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

The Good, the Bad and the Ugly With

Online Reviewsby Carol Langford

“The troubling question is, what can a lawyer do to fight back when

he or she receives a negative review?”


but only if the statements made in the review were false. Even then, it’s probably not a good idea. The Associated Press recently reported about a Minneapolis Neurolo-gist, David McKee, who sued a patient’s son for defama-tion after he wrote a scathing review, including dispar-aging comments allegedly said by the doctor to him and his family following his father’s stroke. McKee claims that the statements attributed to him were not true. This particular case has not been decided, but such suits are rarely successful. A study by Eric Goldman, a professor at Santa Clara University School of Law, revealed that of the 28 physicians who have recently filed similar suits, 16 of them were dismissed and six of them settled.

The outcome of such suits can be devastating. In a July 13, 2009, article the San Francisco Chronicle report-ed about a California dentist, Yvonne Wong, who sued a patient and Yelp after the patient posted a negative re-view on Yelp’s site. Ultimately, Ms. Wong was ordered

to pay more than $80,000 in attorney’s fees to her pa-tient and Yelp. The judge ruled in that case that Cali-fornia’s stringent anti-SLAPP law could be applied because the patient had mentioned mercury fillings in her review, and thus the review furthered discus-sion of an issue of public interest.

Even Yelp’s spokeswoman Kristen Whisenand recommends against using the “nuclear option” and suing for a negative review. Why? Because it usually only brings more attention to the nega-tive review—which is what the professional didn’t want in the first place. For example, in 2007, the New York Times reported about attor-ney John Henry Browne who sued the lawyer-ranking site Avvo alleging that his 5.7 (out of 10) ranking was damaging to his law prac-tice. A federal judge held that the reviews were protected under the First Amendment right to express opinions and dismissed the case. The case brought more public notice to the negative Avvo reviews that the at-torney wanted removed in the first place. A search of the same attorney now shows that he was able to raise that number to 6.6, so maybe he learned a thing or two since then. Or maybe he simply became more Internet-savvy and learned how to work the system.

The best option for attorneys is to check the ratings websites, and re-spond to the reviews in a friendly, pro-active manner. For example, one San

Francisco attorney with a rating of 2.5 stars on Yelp (out of 5 possible stars) responded to each and every one of his negative reviews in a polite manner that did not di-vulge privileged information. Although measures such as these may seem distasteful, the reality is that social media exists, people do check it when searching for an attorney, and the only thing attorneys can do is to stay on top of things. s

Carol M. Langford has a practice in State Bar defense and professional licensing disputes in Walnut Creek. She teaches professional responsibility as an adjunct at U.C. Berkeley, Boalt Hall School of Law and Hastings College of the Law. Additionally, Ms. Langford serves as an expert witness in cases involving complicated eth-ics issues and presents at conferences and symposiums across the state. She is a past Chair of the California Committee on Professional Responsibility and Con-duct.

A GOOD

REVIEW

MAY 201332

T he best Inns Of Court pre-sentations get all of its mem-bers involved. Instead of just having a group standing up

performing for their adoring fans in the audience, the best groups make the adoring fans part of the perfor-mance. Judge Maier’s group (star-ring Erika Littlefield, Lisa Mendes, Matthew Mraule, Nick Casper, Nicholas Jay, Janine Ogando, Pat-rick Perez, Scott Reep, Laureen Bethards and John Warnlof) proved this old saw one more time with a great “Legal Jeopardy!” presentation at the March 14, 2013, meeting.

If you’ve ever watched an epi-sode of “Jeopardy!,” seen the ”Sat-urday Night Live” always hilarious “Celebrity Jeopardy!” skits, or even caught any part of the “E! True Hol-lywood Story” on Alex Trebek, you know how “Jeopardy!” works. They give you the answer, you give them the question!

The twist here is that all of the cat-egories were legal in nature. Even the “Movies” category related to law movies, like the always realistic “Jury Duty” (Pauly Shore’s greatest role). The most basic questions were fairly easy; most practitioners in that field would quickly get them. However, the difficulty quickly es-calated and most teams spent the entire night in the negative. Yes, it’s true. An entire room full of veteran

attorneys and judges got the vast majority of the questions ... wrong.

Partial credit should go to Judge Maier’s group for crafting increas-ingly challenging questions. How-ever, more of the credit (or blame) should go to the groups for buzz-ing in too soon or failing to answer in the form of a question. These are basic “Jeopardy!” tenets, yet they tripped up so many groups. Groups had plenty of enthusiasm for the rules of the game and were not bashful about alerting Judge Maier’s group when the answering groups made the most basic mis-takes. When it comes to a raucous energy at an Inns Of Court meeting, you don’t have to turn up the stove too much to get that water to boil.

Inns President Scott Reep played Alex Trebek, but went old school Trebek, donning a perm wig and rocking a red blazer. He wielded a buzzer like it was a light saber, strik-ing down the groups that dared answer incorrectly (although, it should be noted, that actually didn’t make them more powerful than you could ever imagine).

The groups careened helplessly towards “Final Jeopardy!,” sadly ar-riving to the championship round mostly empty handed. Only two groups were actually in the posi-tive, which meant that only two groups could even really take part

in “Final Jeopardy!”

It came down to Judge Cram’s group (my group) versus Judge Mockler’s group for all the marbles! Judge Mockler’s group was up by approximately $2,000, so they had the advantage. Before we received the “Final Jeopardy!” answer, both groups had to enter our wagers. Our group decided to bet a single dollar, pinning our hopes on Judge Mock-ler’s group failing. It was the con-servative play and I was concerned. Were we betting not to lose? But I was assured it was the way to go. Plus, you have to have hope.

The “Final Jeopardy!” answer came in: “This justice said: ‘It is better, so the Fourth Amendment teaches us, that the guilty some-times go free than the citizens be subject to easy arrest.’”

We guessed Justice Douglas, which was correct! Judge Mockler’s group guessed another, incorrect justice. What’s more, they had wa-gered so much money that they fell behind us into second place! Our $1 betting plan had worked! Clear Eyes, Full Hearts, Can’t Lose!

It was an extremely successful evening that helped bring the Inns Of Court community together in a fun and funny way. s

inns of court

by Matthew Talbot

Legal Jeopardy!


Northern CaliforniaMediator / Arbitrator

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Roger F. Allen

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The next Inns of Court meeting is May 9, 2013, at the Lafay-ette Park Hotel. To learn more about the Inns Of Court and get involved, con-tact President Scott Reep at 707.748.0900 or [email protected].

MAY 201334

CO

FF

EE

TALK

!

How have the court budget cuts affected you?

Unlawful Detainer matters have been severely impacted because of the budget cuts. UD’s have been “farmed” out to several different de-partments within the Superior Court in Martinez, Richmond and Pitts-burg. After the closing of the Concord Court, and Walnut Creek Court only doing traffic, it has put a strain on all of our summary proceedings. In some cases, the Superior Court Judges in Martinez would call their regular civil calendar and after an hour or so, would then call the UD calendar.

Since then, Commissioner Richards has gone back to doing UD’s in Pittsburg and Richmond as well as his busy traffic calendar, and for that we are truly grateful! In addition, the assistance of the volunteer attorneys serving as pro tems has made an improvement on the flow of the UD and small claims calendars. Howev-er, a regular presiding Commissioner would be extremely beneficial, at least for the Martinez calendar.

Terri L. Brewer

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

Anonymous

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

Anonymous

I am presently participating in com-plicated property damage—inverse condemnation jury trial in Depart-ment 13 before Judge Brady (Kelly v. CCWD). Due to the recent budget cut-backs, our trial time has been ba-sically limited to four (4) afternoons per week, with an occasional Friday morning thrown in when the Court can arrange the schedule.

The pace of the trial is very slow given only 2 ¾ hours per day. After four weeks of trial, plaintiffs’ counsel is still presenting his case. The jury is getting antsy, and just yesterday the Bailiff informed us that several jurors are concerned with their availability should the trial go past April 15th, which it surely will. Judge Brady fears we will lose some jurors which could result in a mistrial.

These budget cuts have increased the cost of trial, created witness schedul-ing difficulties, caused witnesses, most of whom are experts charging for their time, an undue burden of returning to court for multiple days, and prevented the court from hear-ing other trials.

Craig L. Judson Bold Polisner Maddow Nelson & Judson


CALENDARUPCOMING EVENTS | OVERVIEW

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

To subscribe, text CCCBA to 22828.

May 8 | Family Law Section

View From the Bench -

New Judges

more details on page 36

May 10 | Employment Law Section

Violence in the Workplace: Employer Obligations,

Legal Issues and Threat Assessments


May 15 | Business Law & Corporate Counsel and Litigation Sections

The Ever Evolving Enigma of ESI (Electronically

Stored Information) and its Ethical Obligations


May 17 | Real Estate Section

Diversity: Special Challenges for the

Commercial Real Estate Bar


May 21 | CCCBA

Social Media & Legal Ethics - Part 2

of the Law Practice Management Series


May 23 | CCCBA

Get to Know Your Local Judges


May 29 | CCCBA

Fast Track Bench/Bar Roundtable


June 6 | Barristers, Litigation and Pro Bono Sections

Deadlines, Depositions & Discovery

For the New Attorney (Part 3: Discovery)


June 6 | Family Law Section

How to Handle the Allegations

of Sexual Molestation


June 18 | CCCBA

Creating a Modern Law Practice - Part 3

of the Law Practice Management Series


June 27 | Women’s Section

CCCBA All Sections’ Summer Mixer


October 12-19 | CCCBA

Mexico MCLE


MAY 201336

May 8 | Family Law Section

View From the Bench - New Judges

Speakers: Hon. Barbara Hinton Comm. Anita Santos Hon. Ed Weil

Time: 12 pm – 1:15 pm

Location: Contra Costa Country Club801 Golf Club Rd., Pleasant Hill

MCLE: 1 hour general credit

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

Registration: Go to the Family Law website at www.familylawsectioncontracosta.org

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

May 10 | Employment Law Section

Violence in the Workplace: Employer

Obligations, Legal Issues and Threat

Assessment

Breakfast is included.

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

Moderators: Andrea Kelly Smethurst Shannon Walpole

Time: 8 am – 9:15 am

Location: Scott’s Seafood1333 N California Blvd., Walnut Creek


Cost: $30 for section members, $25 for law student members, $35 for CCCBA members, $45 for non-members

Registration: Online atwww.cccba.org/attorney/calendar

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

May 15 | Business Law & Corporate Counsel and Litigation Sections

The Ever Evolving Enigma of ESI

(Electronically Stored Information)

and its Ethical Obligations

Wine and cheese reception to follow.

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

Moderator: Linda DeBene, Esq.

Time: 3:30 pm – 5:30 pm

Location: JAMS Office Conference Room 1255 Treat Blvd. #700, Walnut Creek

MCLE: 1 hour general credit, 1 hour legal ethics credit

Cost: $30 for CCCBA members, $35 for non-members



May 17 | Real Estate Section

Diversity: Special Challenges for the

Commercial Real Estate Bar

Speaker: Elaine Andersson, Bricta Media LLC

Time: 7:30 am – 9 am

Location: Scott’s Seafood1333 N California Blvd., Walnut Creek

MCLE: 1 hour elimination of bias in the legal profession credit

Cost: Free for section members, $5 for law student members, $15 for CCCBA members, $35 for non-members



May 23 | CCCBA

Get to Know Your Local Judges

Join us for an opportunity to get to know members of our local bench on a one-to-one basis. Enjoy refreshments and conversa-tion with Assistant Presiding Judge Austin and Judges Laettner, Mockler and Johnson. Hosted by Steele, George, Schofield & Ramos LLP.

Time: 5:30 pm – 7 pm

Location: Steele, George, Schofield & Ramos3100 Oak Rd., Suite 100, Walnut Creek



May 21 | CCCBA

Social Media & Legal Ethics - Part 2

of the Law Practice Management

Series 2013

This program is designed to provide you with practical advice on how to engage in social networking with prospects and clients within the ethical parameters required by the California Rules of Professional Responsi-bility. Stay after for a hands-on demonstra-tion of effective uses of social media.

Speaker: Randy Wilson, Esq., DSD Law Site Solutions

Time: 4:30 pm – 6:30 pm

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

MCLE: 1 hour general credit, 0.5 hours legal ethics credit

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




June 6 | Family Law Section

How to Handle the Allegations of

Sexual Molestation

Speaker: Victoria Coad, Ph.D.

Time: 12 pm – 1:15 pm

Location: Contra Costa Country Club801 Golf Club Rd., Pleasant Hill



Registration: Go to the Family Law website at www.familylawsectioncontracosta.org

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

June 6 | Barristers, Litigation and Pro Bono Sections

Deadlines, Depositions & Discovery

for the New Attorney

(Part 3: Discovery)

This is a three-part series. Part 3 will examine all the new and relevant issues sur-rounding discovery in civil cases in California. Lunch is included.

Speaker: Geoffrey Steele

Time: 11:30 am – 1:30 pm

Location: CCCBA Office 5th Floor Conference Room 2300 Clayton Road, Concord

MCLE: 1.5 hours general credit




May 29 | CCCBA

Fast Track Bench/Bar Roundtable

Members of the CCCBA are invited to attend a meeting with Fast Track Supervising Judge Craddick and other Fast Track judges to discuss issues of general interest or concern. The judges would like to know what’s on your mind. Please submit discussion topics to the Bar Association by May 24 via email to Theresa Hurley at [email protected]. Lunch is included.

Speakers: Hon. Steve Austin Hon. Laurel Brady Hon. Judith Craddick Hon. David Flinn Hon. Barry Goode, Presiding Judge

Time: 12 pm – 1:30 pm

Location: Wakefield Taylor Courthouse Dept 9, 725 Court St, Room 320, Martinez




June 27 | Women’s Section

CCCBA All Sections’ Summer Mixer,

Hosted by the Women’s Section


Location: Pyramid Alehouse1410 Locust St., Walnut Creek

Cost: Free for section members, $20 for CCCBA members, $20 for non-members



CA

LE

ND

AR

June 18 | CCCBA

Creating a Modern Law Practice -

Part 3 of the Law Practice

Management Series 2013

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

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


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

MCLE: 1.5 hours general credit

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



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Law Offices ofCandice E. Stoddard

1350 Treat Blvd., Suite 420 Walnut Creek, CA 94597

925.942.5100 • fax [email protected]

Practicing law in the East Bay for over 25 years

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Candice E. Stoddard

MAY 201340

DIABLOVALLEY

REPORTINGSERVICESCertified Shorthand Reporters

Serving the entire Bay Area

• Deposition Reporting• Experienced Professional Reporters• Computerized Transcription• Deposition Suites Available• Expeditious Delivery• BART Accessible 2121 N. California Blvd.

Suite 210Walnut Creek, CA 94596

925.930.7388fax [email protected]

contra costa lawyer may 2013

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