the force of nations - los angeles county bar …...the magazine of the los angeles county bar...
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THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION
DECEMBER 2017 / $5
Los Angeles legal scholars Aslı Bâli (right)and Jessica Peake analyze President Trump’sairstrikes against Syria within the context ofinternational law and historical U.S. militaryintervention in the areapage 22
The Forceof Nations
On Direct:Sheila Kuehlpage 10
Creative TrustOptionspage 18
EXCEPTION TOMEDIATIONPRIVILEGEpage 29
DOMESTICVIOLENCE
LEGALSERVICESPROJECTpage 36
EARN MCLE CREDIT PLUS
22 The Force of NationsBY ASLI BÂLI AND JESSICA PEAKE
In assessing the legality of U.S. airstrikes in Syria, the law governing the use of force must be analyzed in the context of relevant measures in the United Nations Charter
29 Excepting MisconductBY TRACY LUU-VARNES
The California Law Revisions Commission is considering a statutory revision allowing an exception to the confidentiality privilege in mediationproceedingsPlus: Earn MCLE credit. MCLE Test No. 273 appears on page 31.
36 Special SectionMaking a Difference: LACBA's Domestic Violence Legal Services ProjectBY SANDY BANKS
F EATU RE S
Los Angeles Lawyer
the magazine of
the Los Angeles County
Bar Association
December 2017
Volume 40, No. 9
COVER PHOTO: TOM KELLER
12.17
10 On DirectSheila KuehlINTERVIEW BY DEBORAH KELLY
13 Barristers TipsBarristers set annual bench-meets-barreceptionBY ROBERT GLASSMAN
14 Practice TipsCalifornia's anti-SLAPP law in the NinthCircuitBY COLLIN SEALS AND GARY D. BROPHY
18 Tax TipsCreative trust options for holders of substantial assetsBY MEGAN LISA JONES
40 Closing ArgumentIt takes diverse sources to fund LACBA’scharitable projectsBY MARK GARSCIA
DE PARTM E NTS
LOS ANGELES LAWYER (ISSN 0162-2900) is publishedmonthly, except for a combined issue in July/August, by theLos Angeles County Bar Association, 1055 West 7th Street,Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period -icals postage paid at Los Angeles, CA and additional mailingoffices. Annual subscription price of $14 included in theAssociation membership dues. Nonmember subscriptions:$38 annually; single copy price: $5 plus handling. Addresschanges must be submitted six weeks in advance of nextissue date. POSTMASTER: Address Service Requested. Sendaddress changes to Los Angeles Lawyer, P. O. Box 55020,Los Angeles CA 90055.
4 Los Angeles Lawyer December 2017
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EDITORIAL BOARD
ChairJOHN C. KEITH
Articles CoordinatorSANDRA MENDELL
Assistant Articles CoordinatorTYNA ORREN
SecretaryRENA KREITENBERG
Immediate Past ChairTED M. HANDEL
JERROLD ABELES (PAST CHAIR)
SCOTT BOYER
CHAD C. COOMBS (PAST CHAIR)
THOMAS J. DALY
GORDON K. ENG
DONNA FORD (PAST CHAIR)
STUART R. FRAENKEL
MICHAEL A. GEIBELSON (PAST CHAIR)
SHARON GLANCZ
GABRIEL G. GREEN
STEVEN HECHT (PAST CHAIR)
DENNIS F. HERNANDEZ
JUSTIN KARCZAG
MARY E. KELLY (PAST CHAIR)
KATHERINE KINSEY
JENNIFER W. LELAND
CAROLINE SONG LLOYD
PAUL S. MARKS (PAST CHAIR)
COMM’R ELIZABETH MUNISOGLU
CARMELA PAGAY
GREGG A. RAPOPORT
JACQUELINE M. REAL-SALAS (PAST CHAIR)
LACEY STRACHAN
YHEZEL ARMANDO VARGAS
THOMAS H. VIDAL
STAFF
Editor-in-ChiefSUSAN PETTIT
Senior EditorJOHN LOWE
Art DirectorLES SECHLER
Director of Design and ProductionPATRICE HUGHES
Advertising DirectorLINDA BEKAS
Senior ManagerMELISSA ALGAZE
Administrative CoordinatorMATTY JALLOW BABY
Copyright © 2017 by the Los Angeles County Bar Association. Allrights reserved. Reproduction in whole or in part without permissionis pro hibited. Printed by R. R. Donnelley, Liberty, MO. MemberBusiness Publications Audit of Circulation (BPA).
The opinions and positions stated in signed material are thoseof the authors and not by the fact of publication necessarily those ofthe Association or its members. All manuscripts are carefullyconsidered by the Editorial Board. Letters to the editor are subject toediting.
6 Los Angeles Lawyer December 2017
LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATIONOF THE LOS ANGELES COUNTY BAR ASSOCIATION
1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553Telephone 213.627.2727 / www.lacba.org
LACBA EXECUTIVE COMMITTEE
PresidentMICHAEL E. MEYER
President-ElectBRIAN S. KABATECK
Senior Vice PresidentTAMILA C. JENSEN
Vice PresidentPHILIP H. LAM
Assistant Vice PresidentJESSE A. CRIPPS
Assistant Vice PresidentJO-ANN W. GRACE
TreasurerJOHN F. HARTIGAN
Immediate Past PresidentMARGARET P. STEVENS
Barristers PresidentJEANNE NISHIMOTO
Barristers President-Elect JESSICA GORDON
Chief Financial & Administrative OfficerBRUCE BERRA
BOARD OF TRUSTEES
KRISTIN ADRIAN
HON. SHERI A. BLUEBOND
SUSAN J. BOOTH
RONALD F. BROT
TANYA FORSHEIT
JENNIFER W. LELAND
MATTHEW W. MCMURTREY
F. FAYE NIA
BRADLEY S. PAULEY
ANGELA REDDOCK
DIANA K. RODGERS
MARC L. SALLUS
MICHAEL R. SOHIGIAN
EDWIN C. SUMMERS III
KEVIN L. VICK
WILLIAM L. WINSLOW
FELIX WOO
AFFILIATED BAR ASSOCIATIONS
BEVERLY HILLS BAR ASSOCIATION
CENTURY CITY BAR ASSOCIATION
CONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELES
CULVER MARINA BAR ASSOCIATION
GLENDALE BAR ASSOCIATION
IRANIAN AMERICAN LAWYERS ASSOCIATION
ITALIAN AMERICAN LAWYERS ASSOCIATION
JAPANESE AMERICAN BAR ASSOCIATION
JOHN M. LANGSTON BAR ASSOCIATION
THE LGBT BAR ASSOCIATION OF LOS ANGELES
MEXICAN AMERICAN BAR ASSOCIATION
PASADENA BAR ASSOCIATION
SAN FERNANDO VALLEY BAR ASSOCIATION
SANTA MONICA BAR ASSOCIATION
SOUTH BAY BAR ASSOCIATION
SOUTHEAST DISTRICT BAR ASSOCIATION
SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION
WOMEN LAWYERS ASSOCIATION OF LOS ANGELES
8 Los Angeles Lawyer December 2017
the course of a difficult year in the place where I attended law school. TheUniversity of California, Berkeley, which played a seminal role in the Free SpeechMovement of the 1960s, has come to be viewed by many as the posterboy forefforts in academia to suppress minority (i.e., conservative) viewpoints.
Just this year, UC Berkeley has seen: extensive property damage from protestsby masked “antifascists” protesting a speech by conservative provocateur MiloYiannopoulos; violent clashes between these antifascists and Trump supporters;the university’s cancelling of a speech by conservative commentator Ann Coulterbased on safety concerns; the Berkeley mayor’s request that the university cancela “Free Speech Week” to which several conservative commentators were invited;complaints by the event’s organizers that administrators were imposing unduebureaucratic hurdles on them; the signing by over 100 Berkeley professors of anopen letter calling for a boycott of all classes and campus activities during FreeSpeech Week; and the organizers’ last-minute cancellation of the event.
A few days after the event was cancelled, Los Angeles Times reporter RobinAbcarian visited Berkeley and spoke to students there. Abcarian was troubled bytheir views, which one student summed up thusly: “Free speech once sought tolegitimize the oppressed, and now it has been appropriated to legitimize oppression.The right to free speech is different from the right to having a platform.”
These students are presumably unaware of long-standing First Amendmentprecedent dictating that state restrictions on speech should probably be speaker-and viewpoint-neutral. I imagine they are also unaware of the irony that their“no platform” principle was also held by former Governor Ronald Reagan,who objected to Stokely Carmichael and other supposed radicals speaking oncampus by reasoning: “Free speech does not require furnishing a podium for thespeaker,” and “I don’t think you should lend these people the prestige of ouruniversity campuses for the presentation of their views.”
While UC administrators deserve some credit for resisting the mayor’s call tocancel the event, it troubles me that the university gave tacit approval (or at leastexpressed no disapproval I know of) to its professors’ call for a complete boycottof campus that week based on concerns for students’ “physical and mentalsafety.” The first rationale must be discounted, coming from college professorsfrom “The Peoples’ Republic of Berkeley,” when any threat to physical safetywas attributable largely to masked “antifascists” whose acknowledged practiceis to use violence to squelch what they view as oppressive conservative speech.
The second rationale is more troubling. By co-opting concepts from the treat-ment of trauma survivors, the new left has gained traction on college campusesfor conflating disfavored speech with dangerous speech. This has led to thespread of “safe spaces” where students can be shielded from ideas less “woke”than their own. By their letter, the professors created a “safe space” for theirstudents to sit out Free Speech Week, denying a potential audience for opposingviewpoints in the same way their old ideological enemy Reagan would have.
Sometimes I wonder if we’ve learned anything at all. n
The quotation, “I disapprove of what you say, but Iwill defend to the death your right to say it,” usually(albeit inaccurately) attributed to Voltaire, encapsu-
lates the principle of freedom of speech, something I havebeen dismayed to see treated with increasing disregard over
John Keith is the 2017-18 chair of the Los Angeles Lawyer Editorial Board. He practicesbusiness litigation with the law firm of Fenigstein & Kaufman in Century City.
10 Los Angeles Lawyer December 2017
on direct
SHIELA KUEHL | In addition to representingLos Angeles County’s Third District, Super -visor Sheila Kuehl chairs the board of com-missioners of First 5 LA, and is a memberof the boards of directors of the MetropolitanTransportation Authority and the South CoastAir Quality Management District. She servedeight years in the California senate and sixyears in the state assembly, and was thefirst woman in California history to be namedSpeaker Pro Tempore of the Assembly andthe first openly gay or lesbian person to beelected to the state legislature. Before be -coming an attorney, Kuehl famously por-trayed the character of Zelda Gilroy on thepopular television series The Many Lovesof Dobie Gillis.
Sheila Kuehl Board of Supervisors, Third District
we do, and then say either yes or no.
You assumed office on December 1, 2014.What was the biggest surprise? The sheeramount of work.
You ran against Bobby Shriver, a member ofthe Kennedy family. Tough race? Everyonebut me thought so. I knew I would win.He had no experience in any of the areasthat the county supervisors have to over-see.
What is the biggest misconception aboutyour job? People think it is a local govern-ment, so they think it’s like being on citycouncil. We are running health care, fos-ter kids, jails, juvenile justice, libraries,parks….
What is the characteristic most important ina leader? Decisiveness.
The Third District spans 431 square milesfrom Santa Monica to Sylmar and up toWestlake Village. Too big for just one per-son? It is not about how many peopleyou represent, but how well you representthem.
Your district alone has a population of morethan two million people. Do you think fivesupervisors are enough? I do. It’s silly toadd one or two supervisors because it ac-tually doesn’t lower the number thatmuch. We have gotten so much done; youonly need three votes and you have a pro-gressive majority. And, Kathryn [Barger],though she is a Republican, is often withus because she cares so much about peo-ple. We can propose, dispose, and spendwithout a lot of waiting.
As the first woman in California history tobe named Speaker Pro Tempore of the As-sembly and the first openly gay person tobe elected to the state legislature, are thereany more firsts we should expect? I wasalso the first gay person to serve on theboard of supervisors. If I am reelected,both times, I can stay in office until2026. I don’t know what other firststhere may be.
You termed out of the California Assemblyand Senate. Any big difference between thetwo bodies? The senate was much moreexperienced in those days. It was moredeliberative and less reactive, more ableto focus on very large issues.
As a legislator, you authored 171 bills thatwere signed into law. Is there one that isclosest to your heart? I can’t pick one. Youget to do a lot of stuff, and it affects 40million people.
You were at UCLA and also working in televi-sion. How did you manage to do both? Ihad to get permission from all of my pro-fessors to miss more classes than usual.
Is it true that an unsold pilot for a DobieGillis spinoff called Zelda was dropped be-cause someone thought your character wasa “little too butch”? That’s what I heard.Allegedly, Jim Aubrey, the president ofCBS said so. I don’t know if it’s true be-cause no one talks to you directly.
You said that as a young actor, they didn’ttreat you like a kid. How so? I was expectedto be professional: showing up, knowingyour lines, performing, interacting withother actors, and taking direction.
In 1959, you fell in love with a woman,though you were not out at the time. Wereyou afraid of people finding out you weregay? Totally frightened. You think yourparents won’t love you, you think yourfriends will abandon you, you think yourfamily will shun you, and you think yourcareer is over. All of those things werevery real.
You went to Harvard Law School at 34. Whythe career change? My acting career fellapart. I went back to UCLA, and Ilearned a great deal from my students.They said, “You’re interested in the rulesand fairness; you ought to go to lawschool.” For kicks, I took the LSAT.
Why did you want to become a lawyer? Iwanted to study the law because if youdidn’t understand the rules, you’d be at a
INTERVIEW BY DEBORAH KELLY
What makes you happiest each day? I lovedoing the Sudoku and the crossword puz-zle in the morning. I love every minute ofmy work, even when it’s hard. Then I lovedinner with a friend and theater, opera,Dudamel, or the movies.
You are the supervisor representing Los An-geles County’s Third District. What are yourthree major job duties? I have a hundredmajor job duties. Essentially, it is to hirethe most amazing staff in each area, listento them, ask them to develop everything
disadvantage. It seemed like a good gener-al degree that would serve you no matterwhat you did.
Were you frightened the first time you werein front of a judge? Not until he sent mehome for wearing a pantsuit.
For many years, you hosted Get Used to It, anational cable show. Used to what? Thechant at the time was, “We’re here, we’requeer, get used to it.”
Are we used to it? Yes, pretty much thecountry is used to it now.
What was your best job? The one I havenow.
What was your worst job? Trying to be aconsultant and piece together clients thatI could feel good about representing.
You were voted the smartest California statelegislator. Are you a smarty pants? I’mpretty smart. All of the members, all ofthe staff, all of the press, and the thirdhouse—the lobbyists—voted.
You have been an elected official for morethan 17 years. What should people knowabout the government? We set, ratify, andchange policy that affects virtually every
minute of peoples’ lives.
You’ve long been a proponent of the single-payer health care system. Is the time ripe?Probably not. What I think is importantfor the country to understand is howwell Medicare has served those of usover 65 and how much of a relief itwould be not to have to worry aboutwhether you’re going to have health in-surance.
What are your retirement plans? Writing anautobiography.
What characteristic did you most admire inyour mother? Her love of learning. Sheonly finished the eighth grade because shehad to work. It was a generalized beingproud of learning things.
If you were handed $10 million tomorrow,what would you do with it? Invest it so itwould grow.
Do you have a hidden talent? I’m a greatsinger. Every zero birthday, I give a con-cert, usually at the Neon Factory in theValley.
What songs do you sing? It’s mostly EllaFitzgerald, Frank Sinatra…that genre.
Who is on your music play list? It’s all classical.
What book is on your nightstand? Lilac Girls.
Which fictional hero would you like to be?Frodo Baggins is the quintessential hero,the unintended hero. He’s generally beenmy role model.
Which magazine do you pick up at the doc-tor’s office? I don’t read magazines.
Where do you go on a three-day weekend?Cayucos, near Morro Bay. But, a three-day weekend is not enough.
What is your favorite vacation spot? Everytwo years I go to Napili, Maui, for twoweeks, and then on the year that’s notthat year, I go somewhere I’ve never beenbefore.
Do your answer your e-mail while away?Out of the country, no.
What is your favorite holiday? Christmas.
What is the trait you’re most proud of? Mysense of humor.
What is your favorite sport as a participant?In the old days, I loved bowling.
Spectator sport? College basketball. I’ll always be a Bruin. Whatever UCLA does,I’m for them.
Which television show do you record? Ilike the different shows that MarvelComics has put on. I will always love StarTrek: Voyager and Star Trek: The NextGeneration.
How do you get your news? L.A. Times,every morning.
Is there a person from your past withwhom you’d like to reconnect? My par-ents.
What do you make sure you have in yourbrief case? My calendar.
In an interview for the Archive of AmericanTelevision, you said you had “never been astar of anything.” Do you still feel thatway? I do. I’ve learned the beauty of col-laboration.
What are the three most deplorable condi-tions in the world? Hunger. Homelessness.Oppression.
Who are your two favorite U.S. presidents?Abraham Lincoln and FDR.
What is the one word you would like onyour tombstone? Already?
12 Los Angeles Lawyer December 2017
Los Angeles Lawyer December 2017 13
IT IS ALMOST THAT TIME AGAIN. On January 18, 2018, the BarristersSection of the Los Angeles County Bar Association will host itsannual bench-meets-bar reception for our local, state, and federaljudiciary at the Jonathan Club in downtown Los Angeles. As inyears past, this will be a remarkable opportunity for youngSouthern California attorneys to mingle with judges and developlong-lasting relationships with them. Young attorneys sometimesthink that judges are inaccessible or intimidating to approach,but that is not the case at this event. The judges do not show upwearing their robes or carrying their gavels. This is why weencourage everyone to attend. This is thetime and place to speak with and get toknow the judges on a personal level—some-thing you cannot do inside the courtroom.
This event is not only set up to helplawyers. It is also an opportunity for theBarristers to express gratitude to our judges.Giving back to our judiciary is in fact oneof our top priorities and has always beennear and dear to our hearts at the Barristers.After all, some of LACBA’s most notablepast presidents include the esteemed andvery accomplished Honorable Lee Edmon and HonorableMargaret M. Morrow. As Justice Edmon (presiding justice inDivision Three, Court of Appeal for the Second Appellate District)graciously expressed it when previously requested to describeher own Barristers experience:
Participating in the Barristers Section gave me the opportunityto meet and work with many lawyers whom I probablywould not have met otherwise. Through the BarristersSection, I developed a network of colleagues who have pro-vided support throughout my entire career. Perhaps mostimportantly, many of those people became lifelong friends.Justice Edmon captures the essence of what it means to be
part of this organization. This event in particular highlights ourgoal of bringing together not only lawyers but also judges andlawyers.
It is no secret that there are many pressing issues facing ourjudicial system at this time. From trying to operate under theconstraint of budget cuts to striving to provide equal access tojustice for members of our community, our hardworking judgesin courtrooms throughout Los Angeles have a lot to deal withon a daily basis. That is why we take pride in hosting this eventfor them. We do it to thank them for their service and to showour sincere appreciation for everything they do to make ourjustice system work. I know I do not speak alone when I say ifthere is anything we as attorneys can do to help make their jobseasier, we stand ready, willing, and able. We are truly at theirservice.
At our last reception, more than 150 guests attended, including
over 35 judges. This year we are expecting even more. We willalso have the privilege this year of hearing from Los AngelesCounty Superior Court Presiding Judge Daniel Buckley andCentral District Chief Judge Virginia Phillips. Judge Buckley wasappointed to the Los Angeles bench in 2002 by Governor GrayDavis. Before being appointed presiding judge, he became thesupervising judge of the civil courts in 2012 after serving as theassistant supervising judge. Prior to appointment to the bench,Judge Buckley spent 22 years in private practice where he repre-sented defendants in tort and environmental litigation. He went
to undergraduate school and law school at the University ofNotre Dame. Judge Phillips attended the University of Californiaat Riverside and obtained her law degree from Berkeley. She wasin private practice for about 10 years before serving as courtcommissioner for Riverside Superior Court. After that, JudgePhillips served as federal magistrate judge and was appointedby President Bill Clinton in 1999 as federal judge for the U.S.District Court for the Central District of California. During hertenure as federal court judge, she has presided over many high-profile cases, including the “don’t ask, don’t tell” case thatreceived national acclaim in 2010.
That Judges Buckley and Phillips have agreed not only toattend our reception but also to deliver their remarks speaks totheir commitment to our young legal community. They aredevoted to our advancement in this profession and recognizethe importance of assuring that we know what we can do tomake ourselves better lawyers. We look forward to hearing themdiscuss these themes as well as touch on other important topics,including the current status of their respective courts and howyoung lawyers can be more engaged with the courts.
The reception starts at 6:30 P.M. and admission is free.Registration is required and will be offered online at www.lacba.org or by phone at (213) 627-2727. I am also happy to answerany questions you may have. E-mail me directly at [email protected] or by phone at (310) 477-1700. n
barristers tips BY ROBERT GLASSMAN
Barristers Set Annual Bench-Meets-Bar Reception
That Judges Buckley and Phillips have agreed not only to attend our
reception but also to deliver their remarks speaks to their commitment
to our young legal community.
Robert Glassman is an attorney at Panish Shea & Boyle and was the 2015-16 president of the Barristers.
14 Los Angeles Lawyer December 2017
RICK
EW
ING
ONE NEED NOT BE AN EXPERT in California’s anti-SLAPP1 law torecognize its disparity in treatment by state and federal courts inCalifornia. Although the U.S. Court of Appeals for the NinthCircuit currently agrees that the anti-SLAPP statute confers anunderlying substantive right, it has over time stripped away someof the law’s procedural protections while maintaining others.There are now several inconsistencies in how California stateand federal courts treat issues that arise in the context ofCalifornia’s anti-SLAPP law.
An acronym for “Strategic Lawsuit Against Public Participation,”SLAPP refers to lawsuits masquerading as ordinary lawsuits butwhich are in reality brought to deter people from engaging inconstitutionally protected activities (including protesting, testifying,or making critical statements of a defendant) or punish them fordoing so.2 The purpose of these lawsuits is to chill protectedactivities rather than to vindicate the plaintiff’s rights.3 In itspristine form, a plaintiff embarrassed by such protesting or criticismseeks retribution by filing a suit for the purpose of forcing thedefendant to face the expense and attendant difficulties of litigation.The plaintiff may have no hope of success but uses the courts foras long as possible to exact some measure of revenge.
California’s anti-SLAPP scheme—like many others across thenation—addresses this problem by sparing the defendant fromthe expenses that are the core and purpose of the plaintiff’s retal-iation.4 In general, a defendant may file a special motion to strike(commonly referred to as an “anti-SLAPP motion”) directed atany cause of action “arising from” a protected activity, and fromthat moment all discovery is stayed as to that cause of action.5
The motion must satisfy the defendant’s burden of establishingthat the causes of action arise out of protected activity, and if itdoes the plaintiff’s opposition must contain admissible evidenceestablishing a “likelihood of success on the merits” of each chal-lenged claim.6 Whatever the trial court’s decision following ahearing on the motion, the losing party has the right to an imme-diate appeal—with the discovery stay remaining in effect.7
Following the hearing—which must by statute take place nomore than 30 days after service of the motion—the court isrequired to award reasonable attorneys’ fees to a prevailingdefendant but also has discretion to award fees to a prevailingplaintiff if the motion was frivolous.8
Taken as a whole, this statutory scheme effectuates the legis-lature’s intent of allowing a speedy resolution to punitive claimsin order to spare those who engage in protected activity fromfacing baseless lawsuits designed to quash free speech and expres-sion. Each element of the statutory scheme works to limit thedamage such suits may have: the discovery bar limits the expenseattendant to the discovery process, the quick time frame forhearing allows for speedy resolution, the right to immediate appealallows speedy correction of a mistaken decision by the trial court,and the mandatory attorneys’ fees provision ensures that a pre-
vailing defendant is not monetarily harmed and also stands as animplicit threat to any plaintiff contemplating such an action.However, in the federal context these protections have beencurtailed and altered by a legal history stretching back 18 years.
The Ninth Circuit first approved and applied California’santi-SLAPP law in 1999, in the landmark case of U.S. ex rel.Newsham v. Lockheed Missiles & Space Company. In Newsham,the Ninth Circuit held that the special motions to strike describedby the law may proceed against state law claims before a federalcourt sitting in diversity, and a successful defendant is entitledto the attorneys’ fees mandated by the statute.9
The Ninth Circuit was not alone in recognizing the substantivenature of the anti-SLAPP scheme. When presented with the sameissue, the First and Fifth Circuits reached the same conclusion,viz. that state anti-SLAPP statutes confer new and substantiverights, allowing such motions to proceed against plaintiffs seekingto punish defendants’ rights of free speech and access to thecourts.10 Despite this acceptance, many attorneys remain unawareof the significant differences in anti-SLAPP procedure in federalcourt as opposed to California state court.
In applying California’s anti-SLAPP procedure to federal courtssitting in diversity, the Newsham court considered only two aspectsof the law: the right to bring a special motion to strike before afederal court sitting in diversity and the right to attorneys’ fees.11
For both questions, the Newsham court sided with the defendant,ruling that California had identified a substantive right and deter-mined that Federal Rules of Civil Procedure 8, 12, and 56 werenot meant to “occupy the field” for procedural purposes.12
practice tips BY COLLIN SEALS AND GARY D. BROPHY
California’s Anti-SLAPP Law in the Ninth Circuit
Collin Seals is an attorney with Baute Crochetiere & Hartley LLP. Gary D.Brophy is an attorney in the complex litigation department of the Los Angelesoffice of Arent Fox LLP.
Accordingly, the Erie doctrine did not pre-vent the court from hearing a challenge toCalifornia laws based on California’s anti-SLAPP statute.13
As to the issue of attorneys’ fees, thecourt concluded that they were a necessarycomponent to vindicate the right to be freefrom baseless suits, by serving as both athreat to potential plaintiffs and ensuringthat successful defendants were not undulyharmed by the expense associated with lit-igation.14 It is important to note that infederal court, anti-SLAPP motions are onlyviable when the court is exercising diversityjurisdiction or when supplemental state lawclaims are joined in federal question cases.15
Under no circumstances can it be used tochallenge a federal claim in federal districtcourt.16
Later decisions examining other aspectsof the anti-SLAPP law have not been asgenerous as Newsham, complicating liti-gation in federal courts. Even cases that atfirst glance appear inclusive often, on closerreview, significantly limit the anti-SLAPPscheme. For example, in 2003, in Batzelv. Smith, the Ninth Circuit held that thedenial of an anti-SLAPP motion constitutesa collateral order that is immediately appeal-able, thus upholding a key aspect of theanti-SLAPP scheme: the right to an imme-diate appeal.17 The court ex plained thatthe immediate appeal provision “demon-strates that California lawmakers wantedto protect [SLAPP defendants] from thetrial itself rather than merely from liability”and reasoned that if a defendant is forcedto wait until final judgment to appeal thedenial of a meritorious anti-SLAPP motion,even a reversal “would not remedy the factthat the defendant had been compelled todefend against a meritless claim broughtto chill rights of free expression.”18 Thecourt concluded that “a defendant’s rightsunder the anti-SLAPP statute are in thenature of immunity; they protect the defen-dant from the burdens of trial, not merelyfrom ultimate judgments of liability.”19
But other cases have added an extrawrinkle that does not exist in state court.In district court, federal pleading stan-dards apply, and if the anti-SLAPP motionhinges on the adequacy of pleading, thedistrict court will treat it as a Rule 12(b)(6)motion to dismiss (rather than as an earlyRule 56 motion for summary judgment).20
The court may grant leave to amend anddeny an otherwise meritorious anti-SLAPPmotion. In this case—and in this caseonly—the defendant may not immediatelyappeal the decision but must wait for theamended complaint, revive the motion,and proceed accordingly.21
More importantly, under California’s
anti-SLAPP scheme, the right to immediateappeal is a right of both parties, not justthe defendant.22 Nevertheless, cases fol-lowing Batzel recognize only the defen-dant’s right to an immediate appeal. Lastyear, the Ninth Circuit confirmed thatwhen an anti-SLAPP motion is granted,the plaintiff cannot appeal, because a plain-tiff does not face the same denial of a sub-stantive right as would a losing defendant.23
Of course, if the successful anti-SLAPPmotion disposes of all causes of action,the plaintiff may timely appeal from thefinal judgment just as with any other case;however, if any claims survive, the plaintiffhas no recourse and must presumably lit-igate the matter to its conclusion beforechallenging the district court’s determina-tion on the motion to strike.
While the cases on the right of appealstripped anti-SLAPP plaintiffs of an impor-tant procedural protection, other decisionsstripped protections from the defendantsas well. In state court, the filing of an anti-SLAPP motion automatically stays all dis-covery related to the SLAPP causes of actionuntil the court has ruled on the motion,and the motion must be heard within 30days of filing.24 California state courts rec-ognize these provisions as necessary to pro-tect SLAPP defendants by minimizing thepotential costs and burdens of protractedlitigation and standard discovery methods.25
Although the Ninth Circuit recognized thesubstantive necessity of the attorneys’ feesprovision in protecting a defendant’s rights,it has not applied the same logic to theseprotections. In Meta bolife Intern., Inc. v.Wornick, the Ninth Circuit rejected the dis-covery bar as conflicting with Rule 56, andalthough the timing requirements were notdirectly at issue in the case, the court notedthat they were similarly incompatible withthe Rule.26 Last year, in Sarver v. Chartier,the Ninth Circuit explicitly confirmed thatthe anti-SLAPP timing requirements con-flicted with the federal rules.27 As a result,the filing of an anti-SLAPP motion in federalcourt will not delay discovery, and themotion need not be heard quickly.
As a practical matter, doing away withthe timing requirements may not substan-tially affect the actual time for hearing ananti-SLAPP motion. Section 425.16(f) onlyrequires the trial court to schedule the hear-ing within 30 days “unless the docket con-ditions of the court require a later hear-ing.”28 Anecdotal evidence suggests thathearings within that 30-day time frame arethe exception, rather than the rule, in mosturban state courts. However, the discoverybar exists in part to insure that such delayswill not drain the defendant’s resources,so such extensions tend not to prejudice
the parties. In federal courts, which do notrecognize the discovery bar, extended delayscan potentially have devastating conse-quences, allowing the plaintiff to enjoy thefruits of the exact situation the anti-SLAPPstatute was adopted to prevent.
Still, the defendant does enjoy one ben-efit stemming from the rejection of theanti-SLAPP timing requirements. Underthe statute, the defendant must file an anti-SLAPP motion within 60 days after serviceof the complaint.29 By doing away withall timing requirements and treating theanti-SLAPP motion as a proxy summaryjudgment, the Ninth Circuit extends thetime for filing all the way to the deadlinefor motions for summary judgment.30 Thismay benefit defendants who do not enjoyready access to lawyers familiar with anti-SLAPP law and who might struggle tomeet the statutory 60-day deadline.
As the case law now stands, defendantsfacing California state law claims in districtcourts in the Ninth Circuit may bring amotion pursuant to California’s anti-SLAPPstatute but must do so without benefit ofthe discovery stay provided for in thatstatute and with the knowledge that thehearing on the motion may be substantiallydelayed. Still, if the motion is denied, defen-dants do enjoy a right of immediate appealunless the district court allows the plaintiffto amend the complaint. If the motion isgranted, the plaintiff does not have thesame immediate right of appeal, and theprevailing defendant is entitled to attorneys’fees and costs.
There are no assurances, though, thatthe current state of affairs will continue,as the acceptance of anti-SLAPP motionsin the Ninth Circuit is not without its dis-contents. Most prominently, Judges AlexKozinski and Paul Watford have called forthe Ninth Circuit to reassess Newsham,particularly in light of the U. S. SupremeCourt’s decision in Shady Grove Ortho -pedic Associates, P.A. v. Allstate InsuranceCom pany.31 Judge Kozinski in particularhas called Newsham “wrong even on itsown terms,” and argues that “the Rulesprovide an integrated program of pre-trial,trial and post-trial procedures,” throughwhich “[t]he California anti-SLAPP statutecuts an ugly gash.”32
In 2015, the District of Columbia Cir -cuit rejected the application the D.C. anti-SLAPP law in federal court in Abbas v.Foreign Policy Group, L.L.C., creating acircuit split.33 The Abbas court, applyingthe Supreme Court’s decision in ShadyGrove,34 held that a federal court exercisingdiversity jurisdiction may not apply the D.C.anti-SLAPP act because it “answers the samequestion” as Rules 12 and 56, viz. “the cir-
Los Angeles Lawyer December 2017 15
cumstances under which a court must dis-miss a plaintiff’s claim before trial.”35 Similarto California, the D.C. anti-SLAPP actimposes a higher burden on the nonmovingparty, and the court reasoned “the D.C.Anti–SLAPP Act’s likelihood of success stan-dard is different from and more difficultfor plaintiffs to meet than the standardsimposed by Federal Rules 12 and 56.”36
The decision in Abbas prompted furthercalls by Judge Kozinski to overturn News -ham, saying the Ninth Circuit was “on thewrong side” of the circuit split and that thecourt “should follow the D.C. Circuit’s leadin giving these trespassing procedures theboot.”37 To date, the Ninth Circuit hasresisted calls to overturn New sham, but theissue is unlikely to go away, particularly ifother circuits choose to follow the D.C.Circuit rather than joining with the First,Fifth, and Ninth Circuits. Even as pressurebuilds to remove state anti-SLAPP protec-tions from federal courts, a movement hasemerged advocating for a federal anti-SLAPPlaw to end the debate. In 2015, RepublicanCongressman Blake Farenthold of Texas’27th Congressional District introduced HR2304, the “SPEAK FREE” Act of 2015.38
Although the bill languishes in committee,it has gained 32 cosponsors from acrossthe ideological spectrum.
Potentially codified as 28 USC Section4201, et seq., H.R. 2304 is similar to Calif -ornia’s anti-SLAPP statute, with only afew distinguishing features. For instance,the proposed federal anti-SLAPP legislationrequires a movant to file a motion within45 days of service of the complaint, or 30days following removal to federal court.39
California’s anti-SLAPP statute allows amotion to be brought within 60 days fromservice.40 Both statutes require a hearingon the motion be held within 30 days ofservice, if possible.41
The proposed federal act arguably pro-tects broader forms of speech than doesCalifornia’s anti-SLAPP law. California’slaw specifically enumerates four areas ofprotected speech concerning politicalspeech and speech that is of public con -cern.42 The federal bill more broadly d e -fines speech that is protected as “an oralor written statement or other expressionby the defendant that was made in con-nection with an official proceeding or abouta matter of public concern.”43 The differ-ence could expand protection to a type ofspeech considered outside the scope ofCalifornia’s anti-SLAPP law.
For now, the Ninth Circuit will continueto interpret California’s anti-SLAPP law,the evolution of which could further erode
the procedural protections afforded underthe state statutory scheme. District courtlitigants considering whether to bring ananti-SLAPP motion and those decidingwhether to remove a case based on diversityjurisdiction should consider this distin-guishing treatment between state and fed-eral courts. Practitioners should be awareof these differences and would be wise tomonitor the Ninth Circuit’s treatment ofCalifornia’s anti-SLAPP law in the monthsand years to come. n
1 Codified in CODE CIV. PROC. §425.16, with exceptionsset forth in §425.17, and the related SLAPP back lawset forth in §425.18.2 CODE CIV. PROC. §425.16(a); Wilcox v. SuperiorCt., 27 Cal. App. 4th 809, 816 (1994) (overruled onother grounds by Equilon Enters. v. Consumer Cause,Inc., 29 Cal. 4th 53 (2002).3 See, e.g., Vogel v. Felice, 127 Cal. App. 4th 1006,1016 (2005) (“[T]he term “chill,” which in this contextrefers not to a direct interference with ongoing speechby injunctive or similar relief but to the inhibiting effecton speakers of the threat posed by possible lawsuits.”)4 Metabolife Int’l, Inc. v. Wornick, 264 F. 3d 832,839 (9th Cir.2001); Batzel v. Smith, 333 F. 3d 1018,1024 (9th Cir. 2003).5 CODE CIV. PROC. §425.16(b),(g).6 Equilon Enters., 29 Cal. 4th at 67.7 CODE CIV. PROC. §425.16(g).8 CODE CIV. PROC. §425.16(c), (f).9 U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F. 3d 963, 972 (9th Cir. 1999).
16 Los Angeles Lawyer December 2017
10 See, e.g., Godin v. Schencks, 629 F. 3d 79, 81, 85–91 (1st Cir. 2010); Henry v. Lake Charles Am. Press,L.L.C., 566 F. 3d 164, 168–69 (5th Cir. 2009).11 Newsham, 190 F. 3d at 972.12 Id. at 972-73.13 Id. See also Erie Railroad Co. v. Tompkins, 304U.S. 64 (1938).14 Newsham, 190 F. 3d at 973 (“California’s ‘specialmotion to strike’ adds an additional, unique weaponto the pretrial arsenal, a weapon whose sting is enhancedby [an] entitlement to fees and costs.”)15 Batzel v. Smith, 333 F. 3d 1018, 1025–26 (9th Cir.2003); Globetrotter Software, Inc. v. Elan ComputerGroup, Inc., 63 F. Supp. 2d 1127, 1129–30 (N.D. Cal.1999).16 Hilton v. Hallmark Cards, 580 F. 3d 874, 881 (9thCir. 2009)); Bulletin Displays, LLC v. Regency OutdoorAdver., Inc., 448 F. Supp. 2d 1172, 1180–82 (C.D.Cal. 2006); Nunag-Tanedo v. East Baton Rouge ParishSch. Bd., 711 F. 3d 1136, 1141 (9th Cir. 2013).17 Batzel, 333 F. 3d at 1023-24.18 Id. at 1025.19 Id.20 See, e.g., Verizon Delaware, Inc. v. Covad Com -mun ications Co., 377 F. 3d 1081, 1091 (9th Cir. 2004).21 Greensprings Baptist Christian Fellowship Trust v.Cilley, 629 F. 3d 1064, 1068 (9th Cir. 2010).22 CODE CIV. PROC. §425.16(i).23 Hyan v. Hummer, 825 F. 3d 1043, 1047 (9th Cir.2016) (“The denial of an anti-SLAPP motion to strikeis not fully reviewable on appeal after final judgmentbecause the statute provides an important right, ‘immu-nity from suit’ that would be ‘effectively lost if a case iserroneously permitted to go to trial.’ No such loss ofrights occurs when the review of a grant of an anti-SLAPP motion to strike is delayed until the appeal offinal judgment.” (Emphasis in original, internal citationsomitted.))24 CODE CIV. PROC. §425.16(f)-(g).25 Mattel, Inc. v. Luce, Forward, Hamilton & Scripps,99 Cal. App. 4th 1179, 1189–90 (2002).26 Metabolife Intern., Inc. v. Wornick, 264 F. 3d 832,845-47 (9th Cir. 2001).27 Sarver v. Chartier, 813 F. 3d 891, 900-901 (9th Cir.2016).28 CODE CIV. PROC. §425.16(f).29 Id.30 Sarver, 813 F. 3d at 900 (allowing an anti-SLAPPmotion to proceed even though it was filed almost ayear after the complaint).31 Shady Grove Orthopedic Assocs. v. Allstate Ins.Co., 559 U.S. 393 (2010).32 Makaeff v. Trump Univ., LLC, 715 F. 3d 254, 274(9th Cir. 2013) (Kozinski, C.J., concurring); see alsoMakaeff v. Trump Univ., LLC, 736 F. 3d 1180, 1188-92 (9th Cir. 2013) (Watford, J., dissenting).33 Abbas v. Foreign Policy Grp., LLC, 783 F. 3d 1328(D.C. Cir. 2015).34 The Court in Shady Grove held that a federal courtexercising diversity jurisdiction should not apply a statelaw or rule if: (1) a Federal Rule of Civil Procedure “an -swers the same question” as the state law or rule, and (2)the federal rule does not violate the Rules Enabling Act.35 Abbas at 1333.36 Id. at 1335.37 Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F. 3d1179, 1183 (9th Cir. 2016) (Kozinski, J., concurring).38 H.R. 2304, 114th Cong. (2015), available at: https://www.congress.gov/bill/114th-congress/house-bill/2304/text.39 Proposed 28 U.S.C. §4202(d).40 CODE CIV. PROC. §425.16(f).41 Proposed 28 U.S.C. §4202(e); CODE CIV. PROC.425.16(f).42 See CODE CIV. PROC. §425.16(e).43 Proposed 28 U.S.C. §4202(a).
Los Angeles Lawyer December 2017 17
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18 Los Angeles Lawyer December 2017
TRUSTS CAN BE USED IN CREATIVE WAYS to help those who ownbusinesses or other substantial assets to pass wealth to the nextgeneration. Estate planning basics focus on keeping assets outsidethe taxable estate, freezing asset values using various trust structures,making strategic use of gifts, shifting income tax back to thesettlor, creating holding structures to buy life insurance thatprovide liquidity but are outside the taxable estate, and utilizingdiscounts. Trusts are a holding entity that can be tailored to indi-vidual goals by drawing on a variety of these basic principles. Interms of tax planning, some of the methods discussed may utilizethe laws of other states, and there are areasin which California’s trust laws are less clearthan they are in other jurisdictions.
Trusts can be broken down into grantorand nongrantor trusts, with further refine-ment into revocable and irrevocable trusts.Essent ially, with a grantor trust, the grantorof the trust is treated as the owner of thetrust for tax purposes because the grantorhas retained beneficial enjoyment or control of the trust property,including retaining a reversionary interest, administration powers,or beneficial enjoyment of the trust assets.1 Grantor trusts arecommonly created by the grantor retaining a reversionary interestin the trust assets greater than five percent of the value of trustassets at the time of the asset transfer to the trust.2 The trust isconsidered a disregarded entity for tax purposes, and, as a result,income from the trust is taxed to the grantor, not the trust. Incontrast, the tax liability for income from nongrantor trusts(trusts in which the grantor is not considered the owner for taxpurposes) is divided between the trust and the trust’s beneficiaries,as specified in the trust documents.3
Trusts can be revocable or irrevocable. With a revocable trust,the grantor retains powers that include those of revocation andalteration. These trusts are grantor trusts and their assets remainpart of the grantor’s estate at death. During life, tax attaches tothe grantor, not the trust itself. With an irrevocable trust, thegrantor does not have the power to revoke the trust and regainownership of the trust assets, generally allowing for protectionof the assets from creditors. The trust is taxed as a separate legalentity, and at rapidly higher rates that reach just under 40 percentfor ordinary income over $12,400.4 Because transfers to an irrev-ocable trust are completed transfers to the beneficiaries at thetime the transfer is made, assets can be subject to a gift tax whenassets are transferred to an irrevocable trust.
Trusts are planning vehicles that separate legal ownership ofproperty from equitable ownership.5 Effectively, this means thatthe property in the trust is the legal property of the trustee—who can be either the grantor or a third party—but is held forthe benefit of the trust beneficiaries. Once the grantor dies, anyassets held in either a grantor or a nongrantor trust escape
probate, as the assets are not part of the decedent’s estate underCalifornia probate law.
Holding a Business in a Trust
Assets that can be transferred to a trust include a grantor’s inter -est in a closely held business, which allows for several beneficialestate planning opportunities for the grantor when a business istransferred to a nongrantor trust. While trusts are subject to themodern portfolio theory of investing, which requires diversificationin many instances, a trust can specify that a family business be
retained in the trust despite a resulting lack of diversification. TheRestatement of the Law (Third), Trusts6 contains guidelines forprudent investing, including situations in which the trust instrumentincludes a retention clause—a provision that requires the trusteeto retain an investment or a group of investments. State laws varyin their application of the prudent investor rule, with some statesbeing more prone to support diversification under the PrudentInvestor Act even when the trust holds a family business.7
Retention clauses, including those related to businesses, canbe either mandatory or permissive. If the former, the trustee canonly sell a concentrated position by petitioning the court.Permissive provisions allow for discretion with respect to holdingsand can be either specific or general. Specific provisions identifythe security to be retained while general provisions do not mentionspecific securities. Individuals setting up a trust to house theirbusiness should think through the possibility that the beneficiariesmight at some point want to sell the business and provide thatoption as they see fit.
The benefits of using a trust to hold a business include potentialprotection from creditors, greater flexibility in dividing incomeof the business among beneficiaries of a trust than among share-holders of a corporation, and facilitating the transfer of wealthamong generations. For example, contrasted with a regular cor-porate structure in which shareholders must be treated the same,the trustee may treat beneficiaries differently if the terms of thetrust permit, such as distributing income to only some beneficiariesand excluding others. Income and capital (stock shares) can also
tax tips BY MEGAN LISA JONES
Creative Trust Options for Holders of Substantial Assets
The California Probate Code specifically allows delegation of
investing activities to an investment advisor.
Megan Lisa Jones is a tax attorney who advises on business and estateplanning at Clark Trevithick A.P.C. She was previously an investment bankerat firms including Lazard Frères & Company.
be divided among beneficiaries. For taxpurposes, a complex set of rules set forthin Subchapter J of the Internal RevenueCode govern the taxation of income tothe trust from the business. Generally, theincome is taxed either to the trust, usuallyat a high rate, or to the beneficiaries attheir marginal rate, depending on whetherthe trust distributes the income to the ben-eficiaries.
Unit trusts and discretionary trusts aretwo options available to a grantor whenstructuring such a trust to achieve thegrantor’s individual estate and successionplanning goals. A unit trust houses trustassets for the beneficiaries in proportionto the number of units each holds. A dis-cretionary trust (or family trust) does notspecify how assets are to be apportionedto the beneficiaries, thus allowing thetrustee greater discretion in distributingassets among beneficiaries. Alternatively,individual trusts can be created for eachfamily member, with the shares or interestsin the business allocated among the bene-ficiaries’ trusts as desired. This latter struc-ture might complicate the running of thebusiness if the trusts have different trusteesor if the trustee has to balance divergingbeneficiary interests, because ownershipof the business (and thus the decision mak-ing power) is divided among multipletrusts. To minimize the complications thatcan result, a decanting provision in thetrust instrument allows a trustee to dis-tribute shares from one trust to other trustsshould circumstances so dictate due to theexisting balance becoming too precariousto manage further. California does nothave a decanting stat ute, but a trustee maypetition the court regarding this matter.Exit provisions can allow the trustee tobuy out family members who no longerwant to retain ownership of the businessor are troublesome in other ways.
A trustee does not have the same free-dom as the grantor in exercising its powersover the business. Instead, trustees have afiduciary duty to the trust beneficiariesand are responsible for investing trustassets for the benefit of beneficiaries,administering the trust and determiningand making distributions. A trustee mustbe chosen carefully and can be an indi-vidual, a corporate trustee, or a privatetrust company. A protector can also bedesignated—either an individual or a com-mittee—and given certain oversight powersover the trustee. Each will require com-pensation, which can add significantly tothe costs of the trust.
With careful planning, corporate controlcan be centralized with the trustee for thebenefit of the beneficiaries for several gen-
erations. Governance processes should beput in place to ease the transition fromthe business being run by the grantor toone run in a (potentially) more structuredway by a trustee, as well as provisionsdealing with the management of the busi-ness for years to come. Common clausesinclude those that deal with exculpationand delegation. An exculpation clause spec-ifies protection for the trustee should heor she not diversify, or if the business doesnot perform well. This is another area inwhich a wise trustee may petition the courtfor approval. A delegation clause allowsthe trustee to hire competent advisors andto delegate running certain functions tosomeone better suited to doing so. TheCalifornia Probate Code specifically allowsdelegation of investing activities to aninvestment advisor. Another common deviceis to create two classes of stock—votingand nonvoting—and to fund the trust onlywith nonvoting stock to limit what actionsthe trust can take with respect to the busi-ness.8 In such cases, while the nonvotingstock held by the trust would be excludedfrom the grantor’s estate, the voting stockretained by the grantor would then beincludable in the estate.
Thinking through not only the estateplanning aspects of this structure but also
the business management realities is key toavoiding numerous future problems. Localgoverning law and the terms of the trustcan have a big impact on how successful atrust structure is in achieving an individual’sestate planning goals. Thus, they should bechosen carefully and with the assistance ofan experienced professional.
Freezing the Value of Assets
The estate planning concept of “freezing”the value of an asset is to transfer the assetby gift or sale to a beneficiary in such away that any further appreciation no longerattaches to the grantor but rather to thebeneficiary. Historically, this would beachieved by having the older generationretain a nonappreciating interest in theasset while transferring an interest expectedto appreciate, using structures includingcorporate or partnership recapitalizations,buy or sell agreements, split purchase agree-ments, lapsing rights, and restrictions onliquidations. Various trust structures todaycontinue to enable this type of transfer byadhering closely to current statutoryrequirements, such as the grantor retainedannuity trust (GRAT). Another structure,less statutorily based, is the intentionallydefective grantor trust (IDGT).
With a GRAT, an asset expected to
Los Angeles Lawyer December 2017 19
appreciate is transferred by a grantor toan irrevocable trust in exchange for anannuity paid at least annually for a periodof years, without potentially incurring anygift tax on the transfer and creating thepotential for gain on the asset to escapeboth gift tax and estate tax on the grantor’sdeath.9
In a zero out GRAT, the gift value isessentially zero. If the annuity is valued thesame as the asset, there would be no gifttax owed on the transfer. Strategies usedto mitigate the risk of a challenge by theInternal Revenue Service to the value ofthe annuity include expressing the annuitypayment as a percentage of the value ofthe asset transferred. With the annuity, thegrantor receives back from the trust thefull value of the asset transferred, plus inter-est at the required Internal Revenue CodeSection 7520 rate,10 which is currently 2.2percent (October 2017; used for someGRATs). As long as the assets appreciatemore than this typically low interest rate,then the beneficiary of the irrevocable trusttakes the excess appreciation amount with-out its being subject to either gift or estatetax. If the grantor dies before the GRATperiod is done, the GRAT “fails” and boththe transferred asset and the annuity willbe includable in the decedent’s estate. Ifthe grantor survives the GRAT period, thebeneficiaries take the appreciation with notax and the grantor has not used up anyof his or her gift tax exemption amount, ifstructured correctly.
A gift to an IDGT is another commonstructure. With an IDGT, the trust is createdas an irrevocable trust with a purposefulflaw that causes it to be a grantor trust fortax purposes, ensuring that the individualcontinues to pay income taxes on incomeearned by the trust because the trust willbe considered a disregarded entity for taxpurposes. Yet, for estate tax purposes, thevalue of the grantor’s estate is reduced bythe amount of the asset transfer. The indi-vidual will sell assets to the trust in exchangefor a promissory note of some length, suchas 10 or 15 years. Because the trust is con-sidered a disregarded entity for income taxpurposes, this sale will not have any incometax consequences. The note must payenough interest to classify the note as payingmarket rate interest,11 so the transfer istreated as a sale for fair market value andnot a gift subject to gift tax. It is generallyrecommended that when the trust is firstcreated, the grantor should fund the trustwith cash equal to at least 10 percent ofthe face value of the promissory note. Thisinitial seed money can be subject to gifttax, which means the grantor must use upsome of his lifetime exclusion amount.
Essentially, the value of the asset is frozenso the appreciation in excess of the interestrate on the promissory note accrues to thebeneficiaries and not the grantor.
Some risks and options exist within thestructure. If the value of the assets decreases,children do not benefit and parents havestill used a part of their lifetime exclusion.However, assets can be swapped in andout of an IDGT, or rolled over into a newone to maximize tax options, if the trustprovisions so allow.
Choosing between a GRAT or an IDGTis a matter for a tax professional to assessand implement based on the grantor’s indi-vidual circumstances. Since the GRAT rulesare defined statutorily,12 and IDGT rulesare essentially based on case law and IRSrulings, the former are more certain. Val -uation and generation-skipping issues canarise if the trust is not structured correctly.Currently, with such low interest rates,choosing assets that are likely to appreciateat a higher rate than the required interestrate is simpler than it has been historically.The Obama administration had been look-ing at these planning tools, and a real riskhad existed that they would be disallowed.With the change in administrations, thatrisk seems less likely to result in materialchanges to these structures.
Applying Discounts
When determining the fair market valueof assets in a decedent’s gross estate or anasset transferred by gift or sale, courtshave consistently applied discounts in arriv-ing at the fair market value of the asset atissue when appropriate to reflect, for exam-ple, the diminished value of an illiquidasset when there is not a ready market forthe sale of the asset (a lack of marketability)or when the interest being valued is onlya minority interest (a lack of control). Theamount and applicability of the discountsvary depending on the type of entity andnature of the interest, with discounts insome cases exceeding 30 percent.13
This creates a planning opportunity forstructuring the ownership of assets insidean estate and the gift of transfers out ofan estate. For example, when transferringan asset out of an estate, by splitting theasset being gifted such that no one personhas control, the aggregate value of thefractional interests being gifted is less thanthe value of the whole, even though col-lectively the family still might retain con -trol. However, complicating the impact ofthis discount is that it will also apply forpurposes of determining the recipient’sbasis in the asset. Thus, any analysis ofdiscounting must factor in the potentialcapital gains tax consequences should the
asset be sold in the near term.In 1990, Chapter 14—the “Special Val -
u ation Rules”—was added to the InternalRevenue Code to prevent excessive estatetax reduction measures. While the addedrules do somewhat limit freezing and cer-tain forms of discounts and dual valuestock, numerous options still exist anddiscounting is still widely used and wellestablished. Discounting remains an effec-tive estate-planning tool. However, anyoneutilizing the option should be mindful ofthe proposed regulations and recognizethat any transfers subject to a discountcould be eliminated under them shouldthe transferor die within three years ofmaking the transfer and the regulationsbecome final.
Long-term planning includes not onlystrategies to decrease the amount and valueof assets in a decedent’s gross estate butalso succession planning. Trusts often offerthe optimal structure to balance numerouscompeting interests and challenges. Whileasset freezing and discounting options canalso reduce estate tax liability, they mustbe used as part of a holistic strategy thataccounts for successive planning realities.
Given the complexity of the rules relat -ing to these strategies and the potentialrisks involved, an experienced professionalshould be consulted to determine the mostappropriate approach for achieving an indi-vidual’s long-term planning goals. n
1 See I.R.C. §671 et seq.2 I.R.C. §§673(a).3 See Subchapter J of the I.R.C. for the rules governingthe taxation of trusts.4 2016 Instructions for Form 1041 and Schedules A,B, G, J, and K-1, IRS, available at https://www.irs.gov.5 The main controlling code for trusts in California isPROB. CODE Div. 9.6 RESTATEMENT OF THE LAW (THIRD), TRUSTS, §227(1992) (Prudent Investor Rule).7 In California, the Uniform Prudent Investor Act iscodified at PROB. CODE §§16045-54. California lawis not entirely clear on this concept. Trustees are oftenadvised to get court approval with respect to the assetsthat the trust can hold.8 If the business is an S corporation, strict rules applyto the creation of a nonvoting class of stock. Generally,the creation of a second class of stock will terminatea company S election. I.R.C. §1361(b)(1)(D). However,S corporations are permitted to issue voting and non-voting common stock without violating the rule againsthaving more than one class of stock, as long as theshares all confer identical rights to distribution andliquidation proceeds.9 I.R.C. §2702. A prorated annuity amount must bepaid for the initial year in which the trust is estab-lished.10 I.R.C. §2702(a)(2)(B).11 See I.R.C. §1274.12 I.R.C. §2702.13 See, e.g., Estate of Frank, T.C.M. 1995-132; Estateof Helen P. Richmond, T.C.M. 2014-26; Estate of Pikerv. Commissioner, 72 T.C. 1062, 1084-1086 (1979);Estate of Gallo v. Com missioner, T.C.M. 1985-363.
20 Los Angeles Lawyer December 2017
22 Los Angeles Lawyer December 2017
AM
AN
E KA
NEK
O
President DonaldJ. Trump autho-
rized the launch of 59 Tom ahawk missiles to strike Al ShayratAir Base in Syria in response to an alleged chemical weaponsattack by Syrian President Bashar al-Assad against civilians inthe Syrian town of Khan Sheikhoun on April 4, 2017.1 The latterattack ultimately claimed more than 80 lives.2 It was reportedthat President Trump’s action came in response to horrific imagesof hundreds of victims, dead or dying, as a result of the nervegas strike3—described by some as the “CNN Effect.”4
The U.S. cruise missiles were launched from destroyers USSPorter and USS Ross in the eastern Mediterranean. The targetwas selected because several top officials, including Secretary ofState Rex Tillerson, told the president that it was important tostrike the exact airfield where the gas was made and from whichthe planes flew to make the action easier to justify and to seem“proportional.”5 That the Trump administration mobilized action
over only two days reflects the depth of the president’s horror atAssad’s actions and their results.6 However, it also begs the ques-tion, why did President Trump choose to react so swiftly to theseattacks over others?
The answer to this question is better understood when putinto context: these strikes were not an isolated incident, i.e., theywere not the first use of force by Trump. In fact, he has droppedan astonishing number of bombs during his presidency—“about20,650 bombs through July 31, or 80 percent the number droppedunder [former President Barack Obama for the entirety of 2016.”7
Thus, the fact that this attack has been the focus of so muchcommentary over other uses of force by the Trump administrationspeaks to the spectacular scale of the attack by Assad and Trump’sresponse but is also notable for other reasons.
First, Trump has a long history of cautioning against inter-vention in Syria;8 he repeatedly urged Obama not to attack Syriaso as to avoid the United States’ becoming enmeshed in yet
Aslı Bâli is faculty director of the Promise Institute for Human Rights, director of the UCLA Center for Near Eastern Studies, a professor in the Inter nationaland Comparative Law Program at the UCLA School of Law, and also currently serves as cochair of the Advisory Committee for Human Rights Watch–MiddleEast. Jessica Peake is assistant director of the Promise Institute for Human Rights at the UCLA School of Law and director of the International and ComparativeLaw Program. Before joining UCLA, Peake worked in prosecution at the International Criminal Tribunal for the former Yugoslavia, the Hague, and in theDefense Services Section at the Extraordinary Chambers in the Courts of Cambodia.
THE FORCEof NationsAbsent internationally approved guidelines, unilateral
retaliatory acts of aggression can erode the protection ofcollective security provided by the United Nations
ONAPRIL 6,2017,
by Aslı Bâli and Jessica Peake
another international conflict.9 Indeed,Trump ran a campaign of “America First,”and frequently criticized the hawkishnessof his opponent, former Secretary of StateHillary Clinton, and Obama’s involvementin conflicts without a connection to theUnited States.
Second, prior to the attack in earlyApril, President Trump had shown verylittle interest in Syria, beyond destroyingISIS.10 There did not seem to be any co -herent political strategy on Syria comingfrom the White House. In fact, these strikesmarked a stark departure from state mentsmade by the Trump administration in lateMarch indicating that the White Househad abandoned the goal of forcing Assadout of power11—a complete reversal of theObama administration’s policy that wasaimed at getting Assad to step aside.12
Third, given Trump’s reversal of Obama’sSyria policy, it is particularly striking thatthe April 6 attack was the first direct militaryaction by the United States against Assad’sforces. All other military actions undertakenby the Trump administration in Syria wereconsistent with earlier targeting choices bythe Obama administration, intended tostrike Islamic State fighters or al-Qaedaaffiliates rather than the regime. The April6 strike also ran the risk of a confrontationwith the Russian government, whose forcesare operating in Syria in support of theAssad regime. Russia was quick to condemnthe attacks.13
There is no doubt Trump wanted toproject a strong image through a round ofquick strikes; he had made a cottage indus-try out of criticizing Obama’s slow move-ments on reacting against hostile statementsand actions by other states and armedgroups during his campaign and prior tohis run for office. He was also highly criticalof Obama’s drawing a “red line” and thenfailing to act when that line was crossedby Assad. It is likely that he viewed thisstrike as a final vindication for the UnitedStates following Obama’s perceived failureon that front.14 In any event, the strikesalso presented Trump with an opportunityto act in a way nearly guaranteed to garnersupport from the Am er ican public. In lightof the many failed policy initiatives of hisfirst 100 days in office, punitive strikesagainst the Assad regime may well havebeen motivated by Trump’s need for a“win.”
Indeed, the strikes succeeded in earningTrump plaudits from across the politicalspectrum domestically.15 From liberalhawks to neocons, Trump was celebratedfor the decision with one prominent com-mentator exclaiming that the strikes rep-resented the moment that Trump truly
“became president.”16 The strikes alsodrew praise from across the media17 andfrom world leaders.18 With all the fanfare,however, one glaring problem was rarelyacknowledged or addressed: the air strikeswere likely illegal under international law.
International Law on the Use of Force
When the United States engages in airstrikesabroad, there is rarely much concerndomestically with the legality of the action.What little debate does take place centerson whether the authorization for the strikescame from Congress or the president. Thefear that Congress has increasingly cededits war-making authority to the executivebranch has been raised repeatedly in thelast few years in response to a range ofactions from airstrikes in Libya to the fightagainst ISIS.19 While the constitutionaldebate about the extent of power delegatedby Congress in the 2001 Authorization forUse of Military Force (AUMF) is a fasci-nating one for most American lawyers, theattention given to that question is a diver-sion from the deeper question of how andwhy the United States is permitted to useforce under international law. While con-stitutional debates rage on at home, muchof the world views the United States as anincreasingly lawless actor abroad.20
The law governing the use of force—jus ad bellum—is found in Article 2(4) ofthe United Nations Charter, which prohi -bits the threat or use of force by states intheir international relations against theterritorial integrity or political indepen-dence of any state. The prohibition upholdsand ensures the sovereignty of states; it iscustomary law, reaches the level of a juscogens norm—a special category of inter-national law deemed so fundamental thatno derogation is permitted—and is at the“very cornerstone of the human effort topromote peace in a world torn by strife.”21
The UN Charter framework providestwo exceptions to the prohibition on theuse of force. The first exception is the“inherent right to individual or collectiveself-defense if an armed attack occursagainst a member of the United Nations,”22
found in Article 51. (See Article 51 of theUN Charter on page 25.) There are com-peting debates as to the scope of Article51 action: the first insists that the “inher-ent” right of self-defense allows for antic-ipatory self-defense, and the second assertsthat the language of Article 51 requiresthat “an armed attack occurs” before theright to self-defense can be exercised.
The second exception exists underChapter VII of the UN Charter, wherebythe Security Council can determine the exis-tence of a threat to or breach of the peace,
or an act of aggression, and can decidewhat measures to take to maintain or restoreinternational peace and security.23 Thesecan be economic measures and other sanc-tions under Article 41 or a use of force bythe armed forces of members of the UnitedNations, authorized under Article 42.
Exceptions also exist outside the charterregime. The first allows a state to use forcewhenever the state whose territory is af -fected provides genuine (uncoerced) con-sent.24 Thus, for instance, when the Iraqistate requested assistance in fighting ISISon its territory, it also provided the UnitedStates with authority to use force withinIraqi borders for that purpose.25 Somecommentators suggest that there is an evenmore expansive authority as a corollaryof the war on terror. On this interpretation,a state may use force in self-defense againsta nonstate actor on the territory of a thirdstate, without the consent of that third ter-ritorial state,26 if the third state is “unwillingor unable” to staunch the threat from thenonstate actor.27 The United States hascited this theory in expanding its activitiesagainst ISIS from Iraq, which has consentedto American forces operating on its terri-tory, to Syria where the United States con-ducts airstrikes against ISIS and otherextremist groups without the consent ofthe government.28
A final, evolving exception to the pro-hibition on the use of force is found in theresponsibility to protect (R2P) doctrine.The R2P doctrine was a political commit-ment made by member states at the 2005high-level UN World Summit meeting,adopted by the General Assembly in itsresolution 60/1,29 and permits interventionon humanitarian grounds to prevent thefour mass atrocities of genocide, warcrimes, ethnic cleansing, and crimes againsthumanity.
The R2P doctrine comprises three pil-lars: the first requires every state to protectits population from mass atrocity crimes;the second recognizes that the broaderinternational community has the respon-sibility to encourage and assist individualstates in meeting that responsibility; thethird pillar requires that if a state is man-ifestly failing to protect its population, theinternational community must be preparedto take appropriate collective action in atimely and decisive manner and in accor-dance with the UN Charter. Pillar threeenvisages the possibility of a collective useof force through the UN Security Councilunder Chapter VII but does not give statesa unilateral right to use force, absent Sec -urity Council action.
The doctrine of R2P was used for thefirst time in Libya, when the Security
Council adopted a resolution focused onprotecting the civilian population, demand-ing an immediate ceasefire and the cessationof all violence against civilians.30 It alsoauthorized member states to take all nec-essary measures to protect civilians andcivilian-populated areas under threat ofattack.31 This led to the now much criti-cized intervention by a NATO-led coalition,led by France and the United Kingdom,which was joined by 19 states, includingthe United States.32 That interventionresulted in the ouster and eventual killingof Libyan President Muammar Qaddafi,leading critics to view R2P as legal coverfor an act of unauthorized coercive regimechange.
Obama’s Response in 2013
At much the same time that the UnitedStates was participating in R2P-basedstrikes in Libya, the Syrian uprising wasunderway and quickly transforming froma nonviolent movement against the regimeto a full-blown civil war.33 Within twoyears, Syria became a major humanitariancrisis with hundreds of thousands of civiliancasualties, millions of refugees fleeing thecountry, and a well-documented record ofatrocities and war crimes being committedon a daily basis.34 The Obama adminis-tration took the position that Syrian Pres -ident al-Assad must go to enable a peacefulresolution to the conflict.35 This compli-cated UN efforts at conflict-resolution andplaced the United States increasingly atodds with Russia, a major supporter ofthe Assad regime.
In August 2013, President Obama faceda serious dilemma over how to respond to chemical weapons attacks by Assad. Re -ports were emanating from Syria about a sarin gas attack against civilians in Dam -as cus and its suburbs.36 This was the dead-liest chemical weapons attack since Sad -dam Hussein’s use of sarin gas againstKurds in 1988, and the Obama admin - istration had to grapple with how to re -spond. Obama had already issued the “red-line” statement on August 20, 2012,threatening force against Syria if there weresigns that unconventional weapons wereused.37 How ever, Obama did not have thesupport of the United Nations under aChapter VII Security Council authorization,and there was no legitimate exercise of self-defense argument possible under Article 51.There had been no request for assistancefrom Syria—indeed the governmental forceswere the ones mounting the attacks—andObama was wary of a humanitarian inter-vention. In the end, Obama supportedstrikes against Syria invoking “vital nationalsecurity interests” as the justification but
24 Los Angeles Lawyer December 2017
sought the backing of Congress and theinternational community before acting.38
Obama’s entreaties to Congress to passan AUMF to allow action against Assadmet with stiff opposition. This led Obamato back off from a strike and instead seekto work with the Russian proposal for in -ternational monitors to take over and de -stroy Syria’s arsenal of chemical weap ons,39
saying “we cannot resolve someone else’scivil war through force.”40
During the Obama administration’sdeliberations, Trump took to Twitter tourge Obama to seek congressional approvalto carry out strikes against Syria,41 callingit a “big mistake if he does not!”42 OnceCongress refused to consent, Trump rebukedObama’s actions stating on Twitter that“Obama really bungled this.” He assertedthat Assad was “stronger today than beforeObama threatened military action.”43
Despite urging Obama to seek autho-rization from Congress for his actions in2013, Trump did not heed his own advicewhen contemplating the actions on April4, 5, and 6 of 2017. The strike action takenby President Trump on April 6 was uni-lateral. Moreover, it was not preceded bya UN Sec urity Council authorization, norwas it authorized by Congress through anAUMF.
U.S. Justifications for April 6
In the absence of UN Security Councilauthorization for the April 6 strikes, oneline of reasoning offered by the Trumpadministration appeared to be an invoca-tion of the right of self-defense. PresidentTrump himself, as well as his press secretary,Sean Spicer, stated that the strikes were inthe “vital national security interest” of theUnited States.44 The argument offered wasthat the proliferation and use of chemicalweapons represents a “grave threat” toAmerican national security by raising thepossibility that such weapons may, infuture, be used against Americans.45
This argument, however, fails to meetthe basic test under international law forasserting a right of self-defense to justify
use of force. A lawful unilateral use offorce in self-defense depends on the exis-tence of an imminent threat. Concernsabout proliferation and a potential futureattack on the United States do not meetthis threshold requirement under Article51 of the UN Charter. Similar argumentsabout the proliferation of weapons of massdestruction as a basis for self-defense werepresented by the George W. Bush admin-istration in defending the “preemptive”use of force against Iraq in 2003 and werewidely rejected by international lawyers,analysts, and leaders of the countries alliedwith the United States.46
A second line of argumentation in de -fense of the American prerogative to useforce in Syria may have been suggested byU.S. Ambassador to the United NationsNikki Haley. “When the United Nationsconsistently fails in its duty to act collec-tively, there are times in the life of statesthat we are compelled to take our ownaction,” she said.47 Ambassador Haleymay have been alluding to the idea thatthe United States was acting in collectiveself-defense on behalf of Syria’s neighbors.Yet, here again, the basic prerequisites forsuch a claim are not met. There was neitherevidence that countries neighboring Syriawere at imminent risk of an attack by theSyrian regime (let alone a chemical weaponsattack) nor that they had requested actionin their collective self-defense.48
The contrast with the ongoing U.S.strikes on Syrian territory against the Is -lamic State is instructive. Iraq did formallyrequest support for its self-defense againstISIS, and the United States offered a legaljustification for expanding strikes beyondIraqi territory as a matter of collective self-defense against the Islamic State.49 Withrespect to the Syrian regime, no neighboringcountry invoked self-defense in responseto the chemical weapons attack, and theU.S. has not formally claimed that it is act-ing in collective self-defense.50
Moving beyond the UN Chartergrounds for the legality of Americanairstrikes, might the strikes be justified
as a form of humanitarian interventionunder the R2P doctrine? Spicer, WhiteHouse press secretary at the time, did saythat there was “a huge humanitarian component” to the justification for the air strikes.51 Moreover, domestic and in -ternational support for the strikes wereclearly related to worldwide humanitar -ian concerns and indignation in the faceof the atrocities regularly committed bythe Assad regime. Yet, it was neither thescale of the humanitarian disaster in Syrianor the general pattern of mass atrocitycrimes but rather the apparent use of chem-ical weapons that triggered the Americanstrikes.
In assessing the potential validity of ahumanitarian justification, it is worth bear-ing in mind that the United States has neverformally recognized a right of unilateralhumanitarian intervention under interna-tional law. Moreover, while the chemicalweapons attack to which the United Statesresponded on April 6 undoubtedly causedextreme humanitarian distress, the muchgreater humanitarian catastrophe occasionedby the toll on civilian lives and property ofthe conflict as a whole has not resulted inhumanitarian intervention in Syria by theUnited States or any other country. Pinprickstrikes on a single location in response to asingle instance of the targeting of civiliansby the regime, in the absence of broaderintervention to protect civilians in a contextin which they are being targeted on a dailybasis falls short of any conventional or doc-trinal definition of humanitarian interven-tion. That said, some legal analysts haveargued that citing humanitarian groundsto justify the April 6 strikes is “illegal butnot unprecedented.”52
Where each of these potential justifi-cations for the airstrikes under internationallaw has failed, however, an entirely noveltheory has emerged and garnered somesupport. This theory would treat the air -strikes against Syria as an enforcementaction to uphold the jus cogens norm pro-hibiting the use of chemical weapons.
There are two variations of this argu-
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Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the SecurityCouncil has taken measures necessary to maintain international peace and security. Measurestaken by Members in the exercise of this right of self-defence shall be immediately reported tothe Security Council and shall not in any way affect the authority and responsibility of theSecurity Council under the present Charter to take at any time such action as it deems necessaryin order to maintain or restore international peace and security.
Article 51 of the UN Charter
ment, each of which has its proponents.The first is a straightforward argumentthat the use of chemical weapons violatesa cardinal rule banning chemical weapons.For example, the NATO Secretary-Generalstated, in response to the April 6 strikes,that “any use of chemical weapons is unac-ceptable, cannot go unanswered and thoseresponsible must be held accountable.”53
The notion that the use of chemical weap -ons must not go unpunished was echoedby several other world leaders.54 This viewhinges on the somewhat contested claimthat the prohibition on the use of chemicalweapons has attained jus cogens status.Thus, one explanation of U.S. airstrikeswould be as an enforcement action to pun-ish the violation of a jus cogens norm.
The second variation on a logic ofenforcement to justify the strikes turns onthe earlier history of the Obama adminis-tration’s efforts to deter chemical weaponsuse in Syria. The agreement brokered bythe Obama administration and the Russiansin 2013 included assurances that the Syrianregime would never again use chemicalweapons. The attack on Khan Sheikhounwas widely seen as violating those assur-ances. Thus, some commentators havedeemed the strikes authorized by PresidentTrump as a form of enforcement of theearlier agreement negotiated by the Obamaadministration.55 One further variant onthis logic might be the argument that thestrikes served the purpose of deterring fur-ther uses of chemical weapons and pre-venting such weapons from falling into thehands of other extremists operating inSyria.56
Because only Iran and Russia joinedSyria in denouncing the April 6 strikes,there is some evidence that the internationalcommunity viewed the airstrikes as legiti-mate if not legal. Some scholars argue thatthis may indicate international support forthe creation of a new international normthat permits the use of unilateral force topunish those who use chemical weaponsagainst civilians.57 The strikes were limitedto a military base allegedly used for thechemical weapons attack, civilian casualtieswere avoided, and the Russians were givenadvance warning.58 As a result, the strikeswere perceived by proponents of the en -forcement justification to be narrowly tai-lored to legitimate goals.
Yet, such an argument for permittingunilateral use of force in response to achemical weapons attack raises significantproblems in international law. First, theprohibition on unilateral uses of force out-side of the narrow exceptions sanctionedby the UN Charter is itself a jus cogensnorm—one that enjoys broader support
than the prohibition on chemical weapons.Second, by displacing the Security Councilas the arbiter of enforcement actions inresponse to threats to peace and security,the United States risks undermining theauthority of a global institution in whichit enjoys the asymmetric privilege of beinga permanent, veto-wielding member.
Moreover, the claim that the UnitedStates is effectively creating a new customaryinternational law norm in favor of unilateraluses of force to punish chemical weaponsuse requires evidence of both state practiceand opinio juris (the view that the practiceis grounded in legal obligation). While theApril 6 strikes may be evidence of an emerg-ing state practice, the failure of the Trumpadministration to offer a formal interna-tional legal justification for the strikes, letalone one citing the emergence of a newinternational norm, cuts against the viewthat the strikes were understood by theUnited States or other international actorsas evidence of the emergence of new law.
Legality of the April 6 Strikes
The U.S. strikes against Syria do not appearconsistent with any of the basic parametersfor the lawful use of force under interna-tional rules. Unauthorized by the SecurityCouncil, without a basis in self-defense(individual or collective), and not motivatedprimarily by humanitarian considerations,the strikes appear to have been illegal.
Perhaps the most troubling aspect ofthe April 6 strikes from the perspective ofinternational law is the Trump adminis-tration’s failure to offer any clear rationaleto defend its lawfulness.59 While differentmembers of the administration, from thepresident to the press secretary to the sec-retary of state offered different accountsof the purposes served by the strikes—including “vital national security interests,”“humanitarian concerns,” “deterring thefuture use of chemical weapons” and evensending a strong message to the Assadregime60—none provided a clear legal jus-tification. In a War Powers Act report sentby President Trump to Congress, Trumpasserted that he “directed this action inorder to degrade the Syrian military’s abil -ity to conduct further chemical weaponsattacks and to dissuade the Syrian regimefrom using or proliferating chemical weap -ons.”61 While this may be a moral justifi-cation, it is not a legal one.
Indeed, such is the lack of clarity onthe legal basis of the strikes, that the Trumpadministration is being sued by a govern-ment watchdog, Protect Democracy, tocompel the administration to disclose thelegal basis for Trump’s actions on April 6.Filing a Freedom of Information request,
the group has requested all emails, memos,and supporting records relating to the legalbasis for Trump’s actions.62
As others have argued, the failure toprovide a legal basis creates the impressionthat “the President may have acted withoutassessing domestic or international legaljustifications for his actions.”63 Such a fail-ure projects to the rest of the internationalsystem a fundamental disregard for legalconstraint. If powerful actors can engagein unilateral uses of force based on theirown judgment concerning which rules maybe enforced coercively or which actorsmust be punished, there is every reason toexpect other states will follow suit. En -gaging in such unilateral uses of force with-out legal rationale undermines the integrityof the collective security order—of whichthe United States was once the principalarchitect and guarantor—and erodes theUN Charter rules on the lawful use offorce. To the extent that the strikes in Syriastand for the proposition that the UnitedStates will resort to unilateral uses of forceat its own discretion and without regardto international law, the precedent set willhave worrying consequences for the sov-ereignty of all countries and the sustain-ability of the global system for internationalpeace and security. n
1 For the findings of the Organisation for the Pro hi -bition on Chemical Weapons concerning the KhanSheikhoun attack, see OPCW Fact-Finding MissionConfirms Use of Chemical Weapons in KhanShaykhun on 4 April 2017, Organisation for theProhibition of Chemical Weapons, June 30, 2017,https://www.opcw.org/news/article/opcw-fact-finding-mission-confirms-use-of-chemical-weapons-in-khan-shaykhun-on-4-april-2017/. For an overviewof theories contesting intelligence concerning thenature of the attack, see Ray McGovern, Intel BehindTrump’s Syria Attack Questioned, Consortium News.com (June 25, 2017), https://consortiumnews.com/[hereinafter McGovern].2 McGovern, supra note 1.3 Ashley Parker et al., ‘Horrible’ pictures of sufferingmoved Trump to action on Syria, WASHINGTON POST,Apr. 7, 2017, available at https://www.washingtonpost.com [hereinafter Parker].4 Josh Dawsey, Inside Trump’s three days of debateon Syria, POLITICO, Apr. 7, 2017, available at http://www.politico.com/story/2017/04/trump-syria-strikes-debate-237025.5 Id.6 Parker, supra note 3.7 Jennifer Wilson & Micah Zenko, Donald Trump isDrop ping Bombs at Unprecedented Levels, FOREIGN
POL ICY, Aug. 9, 2017, available at http://foreignpolicy.com.8 Nicholas Fandos, Trump’s View of Syria: How itEvolved, in 19 Tweets, N.Y. TIMES, Apr. 7, 2017, avail -able at https://www.nytimes.com.9 Donald J. Trump@real Donald Trump: “AGAIN,TO OUR VERY FOOLISH LEADER, DO NOTATTACK SYRIA—IF YOU DO MANY VERY BADTHINGS WILL HAPPEN & FROM THAT FIGHTTHE U.S. GETS NOTHING!” Twitter (Sept. 5, 2013),https://twitter.com/realdonaldtrump/status/3756094033
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76144384?lang=en. 10 As the abbreviated term for the Islamic State of Iraqand Syria is now commonly recognized, it is used herein.11 Michael R. Gordon, White House Accepts ‘PoliticalReality’ of Assad’s Grip on Power in Syria, N.Y. TIMES,Mar. 31, 2017, available at https://www.nytimes.com.12 Steven Lee Myers, U.S. and Allies Say Syria LeaderMust Step Down, N.Y. TIMES, Aug. 18, 2011, availableat http://www.nytimes.com.13 Andrew Osborn & Jack Stubbs, Putin calls U.S.strikes on Syria illegal, blow to U.S.-Russia ties, REUTERS
(Apr. 6, 2017), available at http://www.reuters.com.14 See, e.g., Julian Borger, Donald Trump’s responseto Syria gas attack: blame Obama, THE GUARDIAN,Apr. 5, 2017, available at https://www.theguardian.com/uk. 15 Glenn Greenwald, The Spoils of War: Trump Lav -ish ed With Media and Bipartisan Praise for BombingSyria, THE INTERCEPT, Apr. 7, 2017, https://theintercept.com/2017/04/07/the-spoils-of-war-trump-lavished-with-media-and-bipartisan-praise-for-bombing-syria/.16 Mark Hensch, CNN host: ‘Donald Trump becamepresident’ last night, THE HILL (Apr. 7, 2017), availableat http://thehill.com/homenews/administration/327779-cnn-host-donald-trump-became-president-last-night.17 Steven Perlberg, Trump Badly Wants Pundits’ Ap -proval. TV Loves His Syria Strike. So What ComesNext, BUZZFEED (Apr. 7, 2017), https://www.buzzfeed.com.18 Max Greenwood, World leaders praise US attackon Syria, while Assad allies fume, THE HILL, Apr. 7,2017, available at http://thehill.com/policy/international/327749-world-leaders-praise-us-attack-on-syria-while-assad-allies-fume.19 See, e.g., Russell Berman, The War Against ISIS WillGo Undeclared, THE ATLANTIC, Apr. 5, 2015, avail ableat https://www.theatlantic.com/politics/archive/2015/04/the-war-against-isis-will-go undeclared/390618.20 See, e.g., Stephen M. Walt, Donald Trump is Errati -cally Unraveling the World Order, FOREIGN POLICY,Jan. 28, 2017, available at http://www.business in sider.com/trump-is-not-a-rational-actor-2017-1; SonyaDiehn, Opinion: Trump’s America is beginning tolook a lot like China, DEUTSCHE WELLE AKADEMIE,Jan. 26, 2017, http://www.dw.com/en/opinion-trumps-america-is-beginning-to-look-a-lot-like-china/a-3728 3847; Max Hoffman, Europeans feel Donald Trump’sexpected withdrawal from Iran deal threatens worldpeace, DEUTSCHE WELLE AKADEMIE, Oct. 11, 2017,http://www.dw.com/en/europeans-feel-donald-trumps-expected-withdrawal-from-iran-deal-threatens-world-peace/a-40914854; Nick Wadhams, Balance of Power:Ever More Isolated Trump Goes “Rogue” on Iran,BLOOMBERG, Sept. 21, 2017, available at https://www.bloomberg.com.21 Military and Paramilitary Activities (Nicar. v. U.S.),1986 I.C.J. 14 (June 27) (separate opinion of JudgeSingh). 22 U.N. Charter art. 51.23 U.N. Charter art. 39.24 ANTONIO CASSESE, INTERNATIONAL LAW 313-16 (2005).25 Marc Weller, Striking ISIL: Aspects of the Law onthe Use of Force, Am. Soc’y Int’l Law (Mar. 11, 2015),https://www.asil.org/.26 Elena Chachko & Ashley Deeks, Who is on Board with“Unwilling or Unable,” Lawfare Blog (Oct. 10, 2016),https://www.lawfareblog.com/who-board-unwilling-or-unable.27 Ashley Deeks, “Unwilling or Unable”: Toward aNormative Framework for Extraterritorial Self-Defense,52 VA. J. INT’L L. 483 (2012). 28 Jens Ohlin, The Unwilling or Unable DoctrineComes to Life, Opinio Juris Blog (Sept. 23, 2014),http://opiniojuris.org/.29 G.A. Res. 60/1, ¶¶138-40, U.N. Doc A/Res/60/1 (Sept 16, 2005).
30 S.C. Res 1973, ¶1, U.N. Doc. S/RES/1973 (Mar.17, 2011).31 Id. at ¶4.32 See, e.g., Micha Zenko, The Big Lie About theLibyan War, FOREIGN POLICY, Mar. 22, 2016, availableat http://foreignpolicy.com; Nick Robins-Early, Wasthe 2011 Libya Intervention A Mistake?, HuffingtonPost (Mar. 7, 2015), http://www.huffingtonpost.com/2015/03/07/libya-intervention-daalder_n_6809756.html.33 Mid-East Unrest: Syrian protests in Damascus andAleppo, BBC, Mar. 15 , 2011, available at http://www.bbc.com.34 Top UN Official Says Situation in Syria “Human -itarian Catastrophe,” Calls on Security Council toTake Actions Needed to End “Brutal Conflict,” U.N.Security Council (Apr. 18, 2013), http://www.un.org/press/en/2013/sc10981.doc.htm.35 Press Release, Remarks by President Obama andPrime Minister Netanyahu of Israel in Joint Press Con -ference, The White House Office of the Press Secretary(Mar. 20, 2013), available at https://obamawhitehouse.archives .gov.36 Ben Hubbard et al., Blasts in the Night, a Smell,and a Flood of Syrian Victims, N.Y. TIMES, Aug. 26,2013, available at http://www.nytimes.com.37 Mark Landler, Obama Threatens Force Against Syria,N.Y. TIMES, Aug. 20, 2012, available at http://www.nytimes.com.38 Peter Baker, Obama Says ‘World Set a Red Line’on Chemical Arms, N.Y. TIMES, Sept. 4, 2013, availableat http://www.nytimes.com.39 Mark Landler & Johnathan Weisman, Obama De -lays Syria Strike to Focus on a Russian Plan, N.Y.TIMES, Sept. 10, 2013, available at http://www.nytimes.com.40 Obama’s Remarks on Syria, N.Y. TIMES, Sept. 10,2013, available at http://www.nytimes.com.41 Donald J. Trump@real Donald Trump: “What willwe get for bombing Syria besides more debt and apossible long term conflict? Obama needs Congressionalapproval.” Twitter (Aug. 29. 2013), https://twitter.com/realDonaldTrump/status/373146637184401408?ref_src=twsrc%5Etfw&ref_url=https%3A%2F%2Fwww.nytimes.com%2F2017%2F04%2F07%2Fus%2Fpolitics%2Fdonald-trump-syria-twitter.html.42 Donald J. Trump@real Donald Trump: “The Presi -dent must get Congressional approval before attackingSyria—big mistake if he does not!” Twitter (Aug. 30,2013), https://twitter.com/realDonaldTrump/status/373581528405905408?ref_src=twsrc%5Etfw&ref_url=https%3A%2F%2Fwww.nytimes.com%2F2017%2F04%2F07%2Fus%2Fpolitics%2Fdonald-trump-syria-twitter.html.43 Donald J. Trump@real Donald Trump: “Bashar Assadis stronger today than he was before Obama threatenedmilitary action. Obama really bungled this.” Twitter(Sept. 16, 2013), https://twitter.com/realdonaldtrump/status/379718342858117120?lang=en.44 Noah Bierman, Trump defends airstrikes on Syriaas vital to “national security interest,” L.A. TIMES,Apr. 6, 2017, available at http://www.latimes.com;Katiana Krawchenko & Arden Farhi, U.S. airstrikeon Syria: The timeline, according to Sean Spicer, CBSNEWS, Apr. 7, 2017, available at https://www.cbsnews.com.45 Mika Hayashi, The U.S. Airstrike After the Use ofChem ical Weapons in Syria: National Interest, Hum -an itarian Intervention, or Enforcement Against WarCrimes?, Am. Soc’y Int’l Law (July 13, 2017), https://www.asil.org/. 46 See Transcript of George W. Bush’s war ultimatumspeech from the Cross Hall in the White House, THE
GUARDIAN, Mar. 17, 2003, available at https://www.theguardian.com/world/2003/mar/18/usa.iraq. Seealso David E. Sanger, Bush’s Doctrine for War, N.Y.
TIMES, Mar. 18, 2003, available at: http://www .nytimes.com.47 Ambassador Nikki Haley, Remarks at an EmergencyUN Security Council Meeting on Chemical Weapons inSyria, U.S. Mission to the United Nations (April 5,2017), available at https://usun.state.gov/remarks/7745. 48 See Kevin Jon Heller, Why Preventive Self-DefenseViolates the UN Charter, Opinio Juris (Mar. 7, 2012)http://opiniojuris.org. See also Sean D. Murphy, TheDoctrine of Preemptive Self-Defense, 50 Vill. L. Rev.699 (2005).49 Iraq Formally asks US to launch air strikes againstrebels, BBC, June 18, 2014, available at http://www.bbc.com.50 See, e.g., Ashley Deeks, U.S. Airstrikes Against ISISin Syria? Possible International Legal Theories, Law -fare (Aug. 23, 2014), https://www.lawfareblog.com/us-airstrikes-against-isis-syria-possible-international-legal-theories; Steve Holland et al., White House saysit retains right to self-defense in Syria; Moscow warnsWashington, REUTERS (June 19, 2017), https://www.reuters.com.51 Press release, Press Gaggle (Transcript) by Press Secre -tary Sean Spicer (Apr. 7, 2017), available at https://www.whitehouse.gov.52 Ryan Goodman, Humanitarian Military Options forSyrian Chemical Weapons Attack: ‘Illegal but not Unpre -ce dented, Just Security Blog (Apr. 6, 2017), https://www.justsecurity.org/39658/humanitarian-military-options-syrian-chemical-weapons-attack-illegal-unprecedented/.53 Statement by NATO Secretary General Jens Stolt -enberg on US strikes in Syria, NATO (Apr. 7, 2017),available at http://www.nato.int/cps/en/natohq/index.htm.54 Chiara Palazzo & Peter Foster, ‘Assad bears fullresponsibility’: how the world reacted to Donald Trump’smissile strike on Syria, DAILY TELEGRAPH (UK), Apr. 7,2017, available at http://www.telegraph.co.uk/.55 For an example of this argument, see Philip Bobbitt’scomments in Ryan Goodman, What Do Top LegalExperts Say About the Syria Strikes?, Just SecurityBlog (Apr. 7, 2017), https://www.justsecurity.org/39712/top-legal-experts-syria-strikes/.56 These arguments were offered by Secretary of StateRex Tillerson. Remarks with National Security AdvisorH.R. McMaster (Transcript of Secretary Tillerson andNSA McMaster’s comments), U.S. Dep’t of State (Apr.6, 2017), available at https://www.state.gov.57 Jan Lemnitzer, Is Trump’s strike in Syria changinginternational law?, The Conversation (Apr. 11, 2017),http://theconversation.com.58 A succinct argument for the proportionality of thestrikes was provided by Pentagon Spokesman CaptainJeff Davis, cited in Marty Lederman, Why the strikesagainst Syria probably violate the U.N. Charter and(therefore) the U.S. Constitution, Just Security Blog(Apr. 6, 2017), https://www.justsecurity.org/39674/syrian-strikes-violate-u-n-charter-constitution/.59 Jennifer Daskal, To President Trump on Syria: TheLaw Matters—What’s the Rationale?, Just SecurityBlog (Apr. 7, 2017), https://www.justsecurity.org/39783/president-trump-syria-law-matters-rationale/ [hereinDaskal].60 Kate Brannen, Tracking the White House’s Reasonsfor Bombing Syria, Just Security Blog (Apr. 11, 2017),https://www.justsecurity.org/39864/track-white-houses-reasons-striking-syria/.61 Marty Lederman, (Apparent) Administration Justi -fications for Legality of Strikes Against Syria, JustSecurity Blog (Apr. 8, 2017), www.justsecurity.org, https://www.justsecurity.org/39803/apparent-administration-justifications-legality-strikes-syria/. 62 Callum Paton, Obama-Era Lawyers Sue Trumpover Legality of Syria Missile Strikes, NEWSWEEK, May9, 2017, available at http://www.newsweek.com.63 Daskal, supra note 59.
Los Angeles Lawyer December 2017 27
Los Angeles Lawyer December 2017 29
California’s existinglaws, a person who
files a malpractice action against his orher attorney is prohibited from using evi-dence of conduct or communications thatoccurred during a mediation against theattorney to prove the case. Unlike Calif -ornia, other jurisdictions provide for anexception to the mediation-confidential-ity doctrine with attorney malpracticeclaims. There may be changes in the nearfuture that will make California laws inthis regard more like those of other juris-dictions. In response to a call from theCalifornia legislature, the California LawRe vision Commission is analyzing therelationship between the state’s statutesregarding the mediation confidentialityprivilege and attorney malpractice.1 Thisyear—nearly five years after the initialrequest from the legislature—the commis-
sion issued a preliminary recommendationon this topic. On the horizon is the possi-bility of a new statute that would providefor an exception to the mediation confi-dentiality privilege in situations involvingattorney misconduct during mediation.
Mediation is an interactive form of dis-pute resolution in which a neutral facilitatescommunications between disputants toassist them in reaching a mutually accept-able agreement.2 Although voluntary, medi-ation continues to be a popular avenuefor those interested in resolving a dispute,both during and before litigation. Thereis a broad consensus that one of the appealsto mediation is the guarantee of confiden-tiality during the mediation process.3
Tracy Luu-Varnes is an employment and complexlitigation attorney in the Los Angeles office ofArent Fox LLP
MCLE ARTICLE AND SELF-ASSESSMENT TEST
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ExceptingMisconductMany jurisdictions outside California provide for anexception to privileged mediation communicationwhen the communication can prove or disprovemisconduct that occurred during mediation
by Tracy Luu-Varnes
UNDER
Currently, California’s mediation stat -utes make any statements and writingsthat occur during the mediation confiden-tial and protected from disclosure. Statutesgoverning mediation confidentiality arefound in the California Evidence Code.4
Section 1119—perhaps the crux of themediation confidentiality privilege—pro-vides that:
[N]o evidence of anything said orany admission made for the purposeof, in the course of, or pursuant to,a mediation or a mediation consul-tation is admissible or subject to dis-covery, and disclosure of the evidenceshall not be compelled, in any arbi-tration, administrative adjudication,civil action, or other noncriminalproceeding in which, pursuant tolaw, testimony can be compelled tobe given.5
There are limited exceptions to the medi-ation confidentiality privilege. Outside ofthe family law and criminal context, theseexceptions include contempt proceedings,criminal conduct, and conduct being inves-tigated by the State Bar or Commission onJudicial Performance disqualification pro-ceedings.6 Notably absent are exceptionsbased on attorney malpractice, misconduct,or abuse during mediation.
The mediation confidentiality privilegeencourages participants (including attor-neys) to speak openly and freely and toengage in robust discussions with the assur-ance that if a settlement is not achieved,their words and any discussion that tookplace during the mediation would not beused against them at a later time. However,suppose a dispute settles at mediation, butone of the participants alleges that hisattorney committed malpractice or engagedin misconduct during the mediation. Inaddition, suppose that this participantalleges that he would never have settledat mediation “but for” the attorney’s mis-conduct. Under California’s existing medi-ation confidentiality privilege laws, sincethe evidence to support the malpracticeaction derives solely from the conduct ofthe aggrieved party and communicationsduring mediation, the ag grieved party willfind that he has no recourse against theattorney as that evidence is subject to themediation confidentiality privilege andthus inadmissible.
Current California laws shield attorneysfrom malpractice actions if the alleged mis-conduct occurred during a mediation. Thisis a harsh line in the sand for a mediationparticipant who is seeking recourse for anattorney’s malpractice at mediation.Interestingly, this protection for attorneysdoes not exist in other jurisdictions. For
example, states have adopted the UniformMediation Act (UMA), which has carvedout an exception to the mediation confi-dentiality privilege for attorney malpracticeand misconduct.
Malpractice Context
Several California courts have examinedthe intersection between the protectionsafforded by the mediation confidentialityprivilege and attorney malpractice arisingfrom conduct during mediation. In everyCalifornia case thus far, the courts havebroadly construed and applied the medi-ation confidentiality privilege to excludethe admission of evidence of communica-tions or conduct that occurred during medi-ation, despite the knowing inequity thatresults from such a decision.
In 2004, the California Supreme Courtbroadly interpreted the mediation confi-dentiality privilege to preclude exceptionsother than those expressly contained inthe statutes. In Rojas v. Superior Court,7
contractors and subcontractors settled aconstruction defect case brought by theowner of an apartment complex at medi-ation. Thereafter, hundreds of tenants ofthe apartment complex sued several ofthe entities who had been involved in thedevelopment and construction of the com-plex for numerous health problems asso-ciated with the construction defects.8 Thetenants demanded production of severalitems prepared in the prior litigationincluding the files relating to the construc-tion defect case.9 The supreme court con-cluded that the requested items were notdiscoverable because they were “preparedfor the purpose of, in the course of, orpursuant to, [the] mediation” in the under-lying action.10 Even acknowledging thatwithout the requested discovery the tenantsmight not have been able to obtain muchof the necessary evidence, the supremecourt held that the mediation confiden-tiality privilege is not subject to a “‘goodcause’ exception.”11 In reaching this con-clusion, the supreme court focused on thestrong public policy favoring mediationand the need for confidentiality in themediation process.12
In Wimsatt v. Superior Court, CoreyKausch, a mediation participant, filed alegal malpractice case against his formerattorneys regarding their representationof him during a mediation in a personalinjury lawsuit.13 Among other allegations,Kausch alleged that his attorneys breachedtheir fiduciary duty by submitting an unau-thorized settlement demand to the opposingparty, which Kausch allegedly learned fromthe confidential mediation brief duringmediation.14 The law firm sought a writ
of mandate to compel the trial court tovacate its order denying the firm’s appli-cation for a protective order and insteadto enter an order that would protect allmediation-related communications, includ-ing the brief, which was the critical evidencefor Kausch’s malpractice action.15
The court of appeal acknowledged thatthe California Supreme Court has consis-tently held that “the mediation statutesare to be broadly construed to effectuatethe legislative intent, even if there are con-flicting public policies and even if the equi-ties in a particular case suggest a contraryresult.”16 Therefore, in light of dicta andthe supreme court’s analysis of the scopeof mediation confidentiality privilege, anddespite the fact that the ruling would likelydeprive Kausch of his ability to prove thepurported legal malpractice action, thecourt of appeal found that the mediationbrief and e-mail referring to sections ofthe mediation brief were absolutely andcompleted protected from disclosure bythe mediation privilege.17
Similarly, in Amis v. Greenberg TraurigLLP, a mediation participant brought alegal malpractice action against his formerattorneys. Amis alleged that at mediationhis attorneys failed to advise him of thepotential for personal liability under theproposed settlement agreement.18 Speci f -ically, Amis alleged that the settlementincluded a stipulated judgment that con-verted the corporate obligations to Amis’spersonal obligations.19 During the trial,Amis admitted that his damages stemmedentirely from the settlement agreementand that any communication he had withhis former attorneys regarding the settle-ment agreement occurred in the course ofmediation.20 Based on those facts, the trialcourt concluded, and the court of appealaf firmed, that the mediation confidentialityprivilege precluded Amis from presentingevidence of communications during themediation, including the settlement agree-ment, thus preventing Amis from beingable to prove his malpractice action.21
Perhaps the most recognized Calif orniacase on this issue was one that reachedthe California Supreme Court in 2011,Cassel v. Superior Court.22 Pet itioner Casselbrought a malpractice action against hisformer attorneys be cause “by bad advice,deception, and coercion, [by his] attor-neys,” Cassel al leges he was induced tosettle the case “for less than the case wasworth.”23 Spe cifically, during the 14-hourmediation, Cassel alleged that despitefeeling increasingly tired, hungry, and ill,his attorneys insisted that he remain untilthe mediation concluded and that he waspressed by his attorneys to accept an offer
30 Los Angeles Lawyer December 2017
Los Angeles Lawyer December 2017 31
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MCLE Test No. 273The Los Angeles County Bar Association certifies that this activity has been approved for Minimum ContinuingLegal Education credit by the State Bar of California in the amount of 1 hour. You may take tests from back issuesonline at http://www.lacba.org/mcleselftests.
1. Mediation involves a neutral who facilitates a dis-cussion between disputants.
True.False.
2. California’s mediation statutes make statementsand writings that occur during the mediation confi-dential and protected from disclosure.
True.False.
3. California’s mediation statutes do not include pro-tection for conduct that occurs during a mediation.
True.False.
4. California laws provide an exception to the mediationconfidentiality statutes for attorney malpractice actions.
True.False.
5. California laws currently do not provide exceptionsto the mediation confidentiality privilege.
True.False.
6. In California, an attorney’s conduct during mediationmay be used as evidence in a subsequent malpracticelawsuit by the attorney’s former client.
True.False.
7. In California, communications between an attorneyand client may be used as evidence in a subsequentmalpractice lawsuit because not allowing them wouldbe against public policy.
True.False.
8. California courts have broadly construed the medi-ation confidentiality privilege to exclude evidence ofcommunications that occurred during mediation.
True.False.
9. In deciding whether evidence of misconduct duringmediation should be allowed in a subsequent mal-practice lawsuit, the California Supreme Court onlyconsiders public policy.
True.False.
10. In Cassel v. Superior Court (51 Cal. 4th 113 (2011)),the Supreme Court permitted evidence of the commu-nications between Cassel and his attorneys duringmediation.
True.False.
11. California is considering a change to the state’scurrent mediation confidentiality statues to allow foran exception for attorney malpractice.
True.False.
12. The California Law Revision Commission is studyingthe relationship that exists under current law betweenmediation confidentiality and attorney malpractice, aswell as other misconduct, to determine if an amendmentto the mediation confidentiality statutes should berecommended.
True.False.
13. There is unanimous support to amend California’scurrent mediation confidentiality statute and add anexception for attorney malpractice.
True.False.
14. The Uniform Mediation Act provides for an attorneymalpractice exception to the mediation privilege.
True.False.
15. The Uniform Mediation Act has been adopted inCalifornia.
True.False.
16. The Uniform Mediation Act has been enacted byall 50 states.
True.False.
17. In an attorney malpractice action brought againstan attorney in a state that has adopted the UniformMediation Act, the former client will be allowed tointroduce evidence of communications that occurredduring mediation to prove its claim.
True.False.
18. In an attorney malpractice action brought againstan attorney in New York, the former client will beallowed to introduce evidence of communications thatoccurred during mediation to prove its claim.
True.False.
19. In an attorney malpractice action brought againstan attorney in California, the former client will beallowed to introduce evidence of communications thatoccurred during mediation to prove its claim.
True.False.
20. If Evidence Code Section 1120.5 were adopted bythe California Legislature, in an attorney malpracticeaction brought against an attorney in California afterthe enactment of Section 1120.5, the former clientwould be allowed to introduce evidence of communi-cations that occurred during mediation to prove itsclaim.
True.False.
by allegedly calling him greedy if he in -sisted on more.24 In addition, Cassel al -leged that during mediation, his attorneysharassed him, threatened to abandon himat the imminently pending trial if he didnot accept the settlement, misrepresentedcertain significant terms of the proposedsettlement, and falsely assured him thatthey could and would negotiate a sidedeal to recoup the deficits in the settlementwhile waiving or discounting a large por-tion of the legal bill if he ac cepted theoffer. At midnight, Cassel’s attorneys pre-sented him with a written settlement agree -ment, and evaded his questions about theterms of the agreement. Feeling corneredwith no time to find new counsel beforetrial, Cassel said he felt that he had nochoice but to sign the agreement, whichhe did.25
Following the settlement, Cassel initi-ated a malpractice action against his attor-neys. During deposition, Cassel testifiedabout the conversations he had with hisattorney before and during the mediation.26
Thereafter, the attorneys moved in liminepursuant to the mediation confidentialityprivilege to exclude all evidence of com-munications between Cassel and his attor-neys. The trial court granted the motionsand determined that all conversations wereinadmissible pursuant to the mediationconfidentiality privilege.27
The court of appeal reversed, findingthat the mediation confidentiality privilegestatutes were “not intended to prevent aclient from proving, through private com-munications outside the presence of allother mediation participants, a case oflegal malpractice against the client’s ownlawyers.”28 The attorneys petitioned reviewin the California Supreme Court, arguingthat the mediation-related discussions withthe client were inadmissible in the mal-practice action even if the discussions wereprivate and away from any other mediationparticipants.29
The supreme court granted review, andconsistent with its prior decisions, char-acterized the mediation confidentialityprivilege statutes as “clear and absolute”and thus must be strictly construed.30 Thesupreme court further held that the medi-ation confidentiality privilege statutes arenot subject to a judicially created exceptionwhen a client sues for legal malpracticeand seeks disclosure of private attorney-client discussions relating to a mediation.31
The supreme court stated that the statutes“must govern, even though they may com-promise” the ability of a person to provea legal malpractice action against a formerattorney.32 Recognizing the inequitableresults of the case, the California Supreme
Court indicated that it was up to the leg-islature to consider reform.33
Allowing Exception
Most privileges, like the attorney-clientprivilege or spousal privilege, are treatedconsistently by courts throughout the coun-try. That is not the case for the mediationconfidentiality privilege. In California, andas exemplified in the cases above, the medi-ation confidentiality privilege has beenbroadly applied as courts have categori-cally prohibited judicially crafted excep-tions, even in situations when justice seemsto call for a different result.34 In takingthis position, California courts have echoedthat a hard line is necessary “[t]o carryout the purpose of encouraging mediationby ensuring confidentiality.”35
At the opposite spectrum of California’streatment of the mediation confidentialityprivilege—which provides for nearly ab -solute confidentiality to mediation com-munications—are the mediation confiden-tiality privilege statutes of New York,which provide minimal confidentiality tomediation communications. The governingstatute, New York Civil Practice Law andRules 4547, provides that settlement offersand demands as well as evidence of conductor statements made during a mediation“shall be inadmissible as proof of liabilityfor or invalidity of the claim or the amountof damages.” The statute continues bystating that “the exclusion established bythis section shall not limit the admissibilityof such evidence when it is offered foranother purpose,” which will include pur-poses to show attorney malpractice or mis-conduct during mediation.
The UMA has been enacted in theDistrict of Columbia and 11 states.36 Sec -tion 4 of the UMA provides that unlessotherwise specified “a mediation commu-nication is privileged…and is not subjectto discovery or admissible in evidence ina proceeding unless waived.”37 The UMAallows several exceptions to the mediationconfidentiality privilege, including whenthe communication can prove or disprovea claim or complaint of professional mis-conduct or malpractice that occurred dur-ing mediation.38 The UMA’s exception isrestricted only to evidence of misconductthat allegedly occurred “during a media-tion” and does not apply to evidence ofmisconduct in a nonmediation setting.
Proposed Revisions
At the direction of the legislature, the Cal -l ifornia Law Revision Commission hasbeen conducting a study, Study K-402, toanalyze “the relationship under currentlaw between mediation confidentiality and
attorney malpractice and other miscon-duct.”39 The commission has acknowl-edged several tentative proposals to revisethe Evidence Code, with the objective ofallowing parties to discover and offer intoevidence mediation communications thatare relevant to proving or disproving claimsthat attorneys committed malpractice inconnection with a mediation.
On April 13, 2017, the following pro-posed statute was presented to the com-mission for consideration:
Evidence Code § 1120.5 (added).Alleged misconduct of lawyer whenrepresenting client in mediation con-text(a) A communication or a writingthat is made or prepared for the pur-pose of, or in the course of, or pur-suant to, a mediation or a mediationconsultation, is not made inadmis-sible, or protected from disclosure,by provisions of this chapter if bothof the following requirements aresatisfied:(1) The evidence is relevant to proveor disprove an allegation that alawyer breached a professional re -quirement when representing a clientin the context of a mediation or amediation consultation.(2) The evidence is sought or prof-fered in connection with, and is usedsolely in resolving, one of the fol-lowing:(A) A complaint against the lawyerunder the State Bar Act, Chapter 4(commencing with Section 6000) ofthe Business and Professions Code,or a rule or regulation promulgatedpursuant to the State Bar Act.(B) A cause of action for damagesagainst the lawyer based upon al -leged malpractice.(C) A dispute between a lawyer andclient concerning fees, costs, or bothincluding a proceeding under theState Bar Act, Chapter 4, Article 13-Arbitration of Attorneys’ Fees, Busi -ness & Professions Code Sections6200-6206.40
This proposal has not been unanimouslysupported. There are concerns that allow-ing for a malpractice exception to the medi-ation confidentiality privilege would changethe effectiveness of mediation as it makesparticipants less willing to be open andhonest since the reassurance of confiden-tiality will no longer be absolute. This con-cern, while legitimate, was not persuasivein other jurisdictions. Mediation is stillpopular and widely used, even in statesthat have adopted the UMA.41 With theexception of the potential change in con-
32 Los Angeles Lawyer December 2017
fidentiality, the other acknowledged bene -fits of mediation will not change. Com -pared with going to trial, mediation is aquicker and more cost-effective way toresolve a dispute. Mediation also providesthe participants more control of the out-come of the case and allows participantsto craft creative resolutions.
In addition, the availability of an attor-ney malpractice exception to the mediationconfidentiality privilege should not changethe way attorneys conduct themselves dur-ing mediation. Attorneys have a fiduciaryduty to competently and diligently advocatefor their clients. An attorney’s standard ofcare to a client should not be different ina mediation. In fact, the addition of anattorney malpractice exception to the medi-ation confidentiality privilege should pro-vide more confidence for clients as wellas attorneys, for both will be able to presentevidence from the mediation should a sit-uation like a malpractice claim arise. Theevidence will be treated like any other mal-practice action and left for the trier of factto make a determination if there was mal-practice.
California is a leader in the alternativedispute resolution domain but may havefallen behind with respect to carve-outsto protect mediation participants fromattorney misconduct. At this point, it isunclear what the commission will recom-mend to the legislature: new Evidence CodeSection 1120.5, a different statute, or nochange at all. For the time being, partici-pants in mediation can still expect that allcommunications and writings that occurredduring the mediation (with few exceptions)will be absolutely privileged. n
1 Memorandum 2017-30 from the California Law Re -vision Comm’n on the Relationship Between MediationConfidentiality and Attorney Malpractice and OtherMisconduct (Draft Tentative Recom mendation) (May30, 2017), available at http://www.clrc.ca.gov/pub/2017/MM17-30.pdf [hereinafter Cal. L. RevisionComm’n].2 Section 1115(a) defines mediation as “a process inwhich a neutral person or persons facilitate commu-nication between the disputants to assist them in reach-ing a mutually acceptable agreement.”3 Blackmon-Malloy v. United States Capitol PoliceBd., 575 F. 3d 699, 711 (D.C. Cir. 2009) (“Congressunderstood what courts and commentators acknowl-edge, namely, that confidentiality play a key role inthe informal resolution of disputes.”). 4 See EVID. CODE §§115-1118. Sections 1152 and1154 are based on the public policy favoring settlementof disputes by encouraging candor discussions whilerestricting the admissibility of evidence of settlementnegotiations and providing some assurance that state-ments made by a party during negotiations will beinadmissible to prove (or disprove) liability.5 This includes writing, communications, negotiations,or settlement discussions. See EVID. CODE §1119.6 See EVID. CODE §§1117, 1120, 1122.7 Rojas v. Superior Ct., 33 Cal. 4th 407 (2004).
Los Angeles Lawyer December 2017 33
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Specialty aReaS
ROSS MEDIATION SERVICES
8 Id.9 Id. at 411-13. 10 Id. at 416-17, 423.11 Id. at 414, 423.12 Id. at 415-16.13 Wimsatt v. Superior Ct., 152 Cal. App. 4th 137(2007).14 Id. at 141.15 Id.16 Id.; Rojas, 33 Cal. 4th at 415-16; see also FoxgateHomeowners’ Assn. v. Bramalea California, Inc., 26Cal. 4th 1 (2001). In Foxgate, a mediator’s reportthat indicated the attorney for one party had engagedin a pattern of tactics that were in bad faith was sub-mitted in support of a motion for sanctions. By craftinga nonstatutory exception to the mediation confiden-tiality privilege, the court of appeal held that the reportwas admissible. The California Supreme Court dis-agreed, holding that the motion and the trial court’sconsideration of the motion and attached documentsviolated the mediation confidentiality privilege as EVID.CODE §1119 expressly prohibits any person, mediator,and participants from revealing any written or oralcommunication made during mediation.17 Wimsatt, 152 Cal. App. 4th at 155.18 John Amis v. Greenberg Traurig LLP, 235 Cal.App. 4th 331 (2015).19 Id. at 335.20 Id. at 336.21 Id. at 343-44.22 Cassel v. Superior Ct., 51 Cal. 4th 113 (2011).23 Id. at 118. 24 See id. at 120.25 Id.26 Id. at 121.27 Id.28 Id. at 122. 29 Id. at 119.30 Id. at 117.31 Id. at 123-3332 See id. at 119.33 See id. at 136.34 Glenn Provost v. Regents of Univ. of Cal., 201 Cal.App. 4th 1289, 1303 (2011); John Eisendrath v. Super -ior Ct., 109 Cal. App. 4th 351, 362-363 (2003) (holdingthat no exception to the privilege can be implied).35 Foxgate Homeowners’ Ass’n. v. Bramalea Cal., Inc.26 Cal. 4th 1, 15 (2001) ; Rojas v. Superior Ct., 33Cal. 4th 407, 416 (2004); R. Thomas Fair v. Karl E.Bakhtiari, 40 Cal. 4th 189, 194 (2006).36 D.C. CODE §§16-4201 to 16-4213; HAW. REV. STAT.§§658H-1 to 658H-13; IDAHO R. EVID. 507; 710 ILL.COMP. STAT. 35/1-35/99; IOWA CODE §§679C.101-679C.115; NEB. REV. STAT. §§25-2930 to 25-2542;N.J. REV. STAT. §§2A:23C-1 to 2A:23C-13; N.J. R.CT. 1:40-4; OHIO REV. CODE ANN. §§2710.01-2710.10;S.D. CODIFIED LAWS §§19-13A-1 to 19-13A-15; UTAH
CODE ANN. §§2710.01-2710.10; VT. STAT. ANN. Tit.12, §§5711-5723; WASH. REV. CODE §§7.07.010-7.07.904.37 Uniform Mediation Act §4 (2001).38 Id. §6(a).39 Cal. L. Revision Comm’n, supra note 1.40 Minutes from the California Law Revision Com -mission on the Relationship Between MediationConfidentiality and Attorney Malpractice and OtherMisconduct (Draft Tentative Recommendation) 5(April 2017).41 There is no evidence that enactment of the UMA,for example, has led to a decline in the use of effectivemediation in jurisdictions that have adopted UMA.See, e.g., James R. Coben, My Change of Mind on theUniform Mediation Act, DISP. RESOL. MAG., Winter2017, at 8 (“[T]o my knowledge not a single empiricalstudy suggests that the UMA has triggered a declinein the use of mediation.”)
34 Los Angeles Lawyer December 2017
36 Los Angeles Lawyer December 2017
It’s early Monday morning. The courtrooms on the second floor ofthe Stanley Mosk Courthouse are still dark, but the court’sRestraining Order Center in room 245 is already busy. A line ofdesperate people is forming outside the Los Angeles County BarAsso ciation (LACBA) Domestic Violence Legal Services Project afew doors down the hall. For the next six hours, volunteers in theproject’s office will listen to the stories of abuse survivors andwalk them through the thick pile of paperwork that civil restrainingorders for domestic violence require.
There’s Diana, who showed up after a former boyfriend brokeinto her home in the middle of the night, blackened her eye, andchoked her until she thought she was going to die. She was ableto escape by poking him in the eye, then dousing him with thepepper spray she kept nearby.
James asked for help because he’s afraid of his 29-year-oldson, a meth addict who punched him in the face and beat himwith a belt buckle after James told him to find a job or move out.
Cynthia came because her ex showed up in a drunken rage, ter-rifying her and their nine-year-old son. He said he’d make off withthe boy and set her on fire if she didn’t take his telephone calls. Inthe past he’d slashed her tires and threatened her with a gun.
Like a dozen other people that day, they arrived at theDomestic Violence Legal Services Project worried and fearful, butleft relieved and empowered—thanks to a program that’s made abig impact on more than 100,000 lives in its 35 years.
The Domestic Violence Legal Services Project—sponsored byLACBA’s charitable arm, Counsel for Justice —relies on volunteerattorneys to help more than 4,000 people every year navigate thelegal process that can protect them from elder or domestic abuse.
The process is straightforward: victims detail the abuse thatoccurred and the relief they desire. A judicial officer reviews theapplication and can issue a temporary protective order that sameday. A few weeks later, a hearing can lead to an extension thatlasts for up to five years.
Sandy Banks is a senior fellow at the USC Annenberg Center on Communication Leadership and Policy. She spent 36 years as an award-winning journalist atthe Los Angeles Times and has written widely about legal issues, the justice system, and domestic violence.
Making a Difference:LACBA’s DomesticViolence Legal Services Projectby Sandy Banks
SPECIAL SECTION
The application packet, however, can be a monumental hurdlefor victims of abuse. It runs more than 30 pages, with questionson everything from whether the abuser owns a gun to the namesof family pets that might need protecting. Their answers dictatenot just whether a judge grants their request for protection butalso what their lives will look like in the aftermath: What bills needpaying? What happens to the kids?
For a lawyer, the paperwork is a cinch: “Like falling off a log,”said Scott Lord, a litigation attorney who has volunteered at theproject since 2009. “One thing you learn from being in court iswhat judges want to know.”
Without guidance some victims botch the process and othersgive up. “These people are coming in at a really emotional time intheir lives,” said Geoffrey Moss, a commercial litigation attorneywho has volunteered for the Domestic Violence Legal ServicesProject for more than five years. “Having us there to walk themthrough it helps them achieve something that would be very diffi-cult to do alone.”
Primary Role
Their primary role is helping the victims tell their stories. The vol-unteers listen to their accounts, ask questions, and craft declara-tions that tell judges exactly why and how they need protection. Alawyer’s mindset and training is a perfect fit for that. “The victimmight want to give you the details of every fight they’ve had, allthe bickering, everything they’ve been through,” said MarkGarscia. “A lawyer can hone in with a clear mind and recognize thefacts that are important for the judge to know.”
A patent attorney and current president of LACBA’s Counsel forJustice, Garscia began volunteering six years ago. “It is gratifyingto help people who’ve mustered the courage to change theirlives,” he said. And the rewards of volunteering flow both ways.“These clients are so grateful that someone is willing to hold theirhand through this process,” he said. “You walk out thinking abouthow tough some people have it and how fortunate you are.”
The Domestic Violence Legal Services Project began in bor-rowed space in a Fairfax-area legal clinic in 1982. It was launchedby then-Barristers president Margaret M. Morrow to help victimsof domestic violence find safehavens and get their lives back ontrack. “Back in the day, if you werebeing abused, it was just yoursecret that you carried around withyou for the rest of your life,” shesaid. “Now people are more willingto come forward, but that reflectsdevelopments that happened overmany, many years.”
Until the women’s movementgained steam in the 1970s, domes-tic violence had been considered afamily matter. Stories were rarelyshared, police were reluctant tomake arrests, and the courts wereseldom involved. Then, sheltersfor “battered women” began tocrop up, and civil courts began giv-ing victims options to protectthemselves. But the legal processwas unnerving and left manywomen adrift. “The shame wasbeginning to lift,” recalled Morrow,who would go on to serve as a fed-
eral judge and now heads the nonprofit law firm, Public Counsel.“But a lot of the victims had difficulty leaving because they didn’thave the resources to secure the immediate legal relief that wouldkeep the abuser away.”
She recruited a few volunteers and worked with shelters andlaw enforcement officials to connect women to options. A fewyears later, the program outgrew its space and moved into thedowntown Los Angeles courthouse, with one desk at the back of abusy courtroom for victims who needed help with paperwork.Later, one desk became three, and the program kept expanding.
By 1994, the project had hired an attorney, added a clinic inPasadena, and enlisted paralegal Sara Rondon to manage theoffice, triage the clients, and recruit volunteers. “We had to hand-write the forms in triplicate, using carbon paper,” Rondonrecalled. “We couldn’t afford computers.”
One week after she was hired, a crime occurred that wouldchange the face of domestic violence and raise the profile of theproject. On June 13, 1994, Nicole Brown Simpson was foundstabbed to death outside her Brentwood condominium. Her for-mer husband, football icon O.J. Simpson, was charged with mur-der, and details of her tortured life with him began to trickle out.Police reports, hospital records, and accounts from her personaljournal detailed years of threats, beatings, and other abuse.Friends said she had expressed fears that she would wind updead by her husband’s hand.
Wake-Up Call
“The explosion of media around that was like a wake-up call,”Rondon said. The Domestic Violence Legal Services Project wasfeatured on national news reports. “We went from seeing a trickleof people to wall-to-wall. Women were saying, ‘If this could hap-pen to her, it could certainly happen to me.’”
The attention produced a flurry of accolades and a suddenfinancial influx for the project. There were grants to hire a secondattorney, a second paralegal, and a social worker. A fund-raisergenerated enough money to outfit the office with computers.Dozens of new volunteers signed up to work with victims. By the
Left to right: Project Attorney Monica Bustos, Project Director Sara Rondon, Project Paralegal Mireya Perez.
38 Los Angeles Lawyer December 2017
time Simpson went on trial in 1995, the clinic was seeing almostthree times as many clients as it had the year before.
For the next decade or so, funding kept pace with the growingneed for services, Rondon recalled. Then came the 2008 recessionwhen grants disappeared and private giving dried up. By 2014,the project’s Pasadena office had closed, the flow of volunteershad slowed, and the staff had shrunk to two.
Today the Domestic Violence Legal Ser vices Project has a staffof three—Rondon, paralegal Mir eya Perez, and attorney MonicaBustos—and a roster of more than 100 volunteers. They work outof an office with four cubicles, a table, and eight plastic chairs forclients who are referred by social workers, police officers, domes-tic violence shelters, and the court’s Restraining Order Center.
Last year, 162 volunteers—attorneys, law students, paralegals,interpreters, legal secretaries—donated more than 5,500 pro bonohours and served 4,254 clients.
“And yet,” Rondon said, “there are some days we can’t get toeveryone who’s waiting for help because we don’t have enoughvolunteers. I need to be able to fill every cubicle every day. Theneed is so great, and the problem is not going away.”
Their service has been hailed as a boon to the family law court,which handled more than 21,000 petitions for domestic violencerestraining orders in the previous fiscal year.
“From the court’s perspective, they provide an integral ser-vice,” said Thomas Trent Lewis, supervising judge of the LosAngeles Superior Court Family Law Div ision. “If the written story iseasy to un derstand and well written—and typically it is when it’s
done by them—that helps provide efficient and meaningful accessto justice. “We’re always trying to balance efficiency and fairness.Generally, victims are better able to tell their stories when caringand compassionate volunteer lawyers help them develop thefacts. That advances both goals.”
It costs about $250,000 a year to run the Domestic ViolenceLegal Services Project, which gets no government money becausethat would place limits on clients’ income, and the project doesn’treject any victims of domestic violence or elder abuse. Much of itsfunding comes from money set aside from class-action settle-ments in California, funneled through LACBA’s Counsel for Justice,which also supports legal services programs for veterans, immi-grants, and people with HIV and AIDS. But with its resources vul-nerable to broad social and economic forces, the project hasbegun to struggle financially. The once-reliable pool of settlementmoney is shrinking, and the project’s shortfall will expand eachyear without an infusion of donations.
It’s clear from the “wish list” on their website that the project isa bare-bones operation: They need books, crayons, and coloringbooks to occupy children while parents are meeting with lawyers;Starbucks gift cards for clients who wait all morning and have tocome back in the afternoon because their turn hasn’t come; pens,pads, and paper clips because the office supply budget doesn’tstretch far enough. And boxes of tissues, because every daysomeone is likely to wind up crying.
Monica Bustos spent five years as a victims’ advocate with theLos Angeles County District Attorney’s Family Violence Unit beforejoining the Domestic Violence Legal Services Project in June. Sheunderstands how much courage it takes for a victim to walkthrough the door, and the swirl of emotions that make some wantto turn and run. Domestic violence is rarely a single, randomevent, she explained. It is a cycle that both victim and abuser getacclimated to. “There’s a violent outburst, then a cooling offperiod,” she said. “The victim softens, there’s a period of calm,then tensions rise again. It may start with cursing and swearing,then pul ling and shoving, then kicking and screaming. It will pro-gressively get worse each time.”
Seven Attempts
It takes a victim, on average, seven attempts to leave a relation-ship for good. Some feel trapped because the abusive partner isthe sole provider or father of their children. Some love theirabuser, cling to memories of better days, and believe he or shewill change. Some are so beaten down that they’re held hostageby feelings of fear, guilt, and shame. Project volunteers learn tonavigate the shifting emotional terrain.
“I’ve had folks who are very ambivalent about whether theyactually want to go through with filing the order,” said AnnFromholz, an employment lawyer who has volunteered since2012. “Others are dead set on being done. They’re kicking theperson out, moving on with their lives. You can’t know what
LACBA’s Domestic Violence Legal Services Project is in immediate need of volunteers to help victims of domesticviolence at the Stanley Mosk Courthouse. Volunteers help clients prepare the complicated and lengthy legaldocuments that are required in order to file for Temporary Restraining Orders and other legal protection from theirabusers. No prior experience is necessary and onsite training is provided.
Help continue this vital service to protect victims of domestic violence by donating the equivalent of one billablehour of your time at www.LACBA.org/donate. Every billable hour you contribute provides thousands of dollars inpro bono legal services.
Left to right: Volunteer attorneys Geoff Moss (Orrick, Herrington & Sutcliffe),Kenrdra Thomas (Thomas Law Offices), Carlos Dominguez (CaliforniaAttorney General's Office).
Los Angeles Lawyer December 2017 39
brought them to that point of certainty. I wind up using a lot of mydeposition-taking skills.”
Eighty percent of the clients are women, but that hasn’t been astumbling block for male volunteers. In fact, their presence can beparticularly comforting, said Carlos Dominguez, a criminal appel-late lawyer who has been volunteering with domestic violence programs since he was in law school at the University of SouthernCalif ornia. “I think it’s especially important for these women tohave a positive experience with a man who’s there to help themout,” he said. “It takes a lot of courage for them to come and seekhelp. We’re here for them at one of the hardest times in their lives.We’re helping them get a new start.”
It has been a surprise to some that 20 percent of the project’sclients are men. Many are victims of elder abuse, but others areseeking protection from male or female domestic partners.
“I thought it would be 100 percent women, but I’ve seen a lot ofmen over the years,” said Scott Lord, who volunteers once or twicea month. “They’re embarrassed much of the time. They’re willingto confide in me, but they’re thinking, ‘I’m a man. I should be ableto handle this.’ Coming in for something like this in an intimaterelationship is a little tough for some guys, and we have to be sen-sitive to that.”
Elder Abuse
It is also tough on elderly parents seeking protection from adult chil-dren. Vol unteers sometimes have to work hard to draw them out.
“You can see the sort of conflict they have,” said RashidaAdams, a research attorney for the California Court of Appeal whobegan volunteering last year. “They feel enough fear to come intothe clinic for help. But there’s still the instinct to protect their chil-
dren. That can take a lot of probing on our part. Their inclination is to say the bare minimum. It’s difficult for them to confront somethings, to acknowledge how bad the situations are.”
In some ways, that might be the volunteers’ most importantrole: reconciling the truth with what victims have for years willedthemselves to ignore, bearing witness to pain that’s been unac-knowledged and unresolved.
“I have often found that people will come into the clinic andcan tell me their story and get through it just fine,” Adams said.“Then we read it back to them, going over the declaration to makesure everything is right, that it reflects what they said. And that’swhen the emotion sets in, when people break down and cry.Hearing it back and seeing it on paper has a real impact. It helpsthem realize how serious it is, how abusive their situation hasbeen over a period of years.”
That can be eye-opening and empowering, but hard toabsorb—for both the victims and the volunteers. “There are allsorts of terrible things that happen. That’s the gig,” Lord acknowl-edged. “But the people who’ve been going on like this for so longthat they can recite, with a flat voice and no emotion, details thatwould have most people recoiling in horror—that’s hard to take for me.”
And yet, he said, the volunteer experience is inevitably bothheartening and humbling. “You go into the office and you knowyou’re going to wind up helping somebody. You’ll do somethingthat they couldn’t do for themselves. That’s a pretty good feel -ing. I leave the project every time thinking there are two or three people who got a hand today when they needed it. And that’s all I can do. As big as my ego is as a lawyer, that’s probably thebest I can do.”
40 Los Angeles Lawyer December 2017
BATTERED WOMEN AND MEN, unemployed veterans, immigrantsseeking legal status through lawful means, and people livingwith HIV/AIDS—these are the individuals the lawyers of theLos Angeles County Bar Association (LACBA) have been helpingfor more than 50 years.
Thank you to each of you who has donated regularly overthe years and to those new donors who have given recently toLACBA’s Counsel for Justice (CFJ), the charitable fundraisingarm of LACBA. Your support has been essential. Unfortunately,the funding received is not enough. LACBA desperately needsthe help of all of its members, and Counsel for Justice is workingtowards this by getting the word out to the community aboutthe thousands of lives helped by the LACBA projects.
Funding for LACBA’s four projects—the Domestic ViolenceLegal Services Project, the Immigration Legal Assistance Project,the Veteran’s Legal Services Project, and the AIDS Legal ServicesProject—comes from many diverse, and sometimes unexpected,sources.
Cy Pres. The LACBA projects have been fortunate to benefitfrom several cy pres awards, which arise from the distributionof unclaimed funds from class action settlements. This past year,LACBA’s Domestic Violence Legal Services Project received$165,000 in cy pres funds from the Spearmint Rhino Gentlemen’sClub. The award was the result of a settlement of a class actionwage and hour dispute with the club’s dancers. Cy pres awards,however, do not occur by chance. They require the timely andeffective intercession of an advocate for the LACBA projects.We are thankful for the watchful eye and efforts of those whohave succeeded in obtaining such awards. Unfortunately, theawards are not sustaining, and when they run out, there is abudget gap.
Grants. Grants from the State Bar of California’s Equal AccessFund and its Interest on Lawyers’ Trust Account (IOLTA) programhave provided a substantial stream of income to the LACBA pro-jects over the years. We are also fortunate that next year’s Californiastate budget includes an increase in those funds. Private foundationsalso support the LACBA projects. For example, the Land of theFree Foundation, the Wells Fargo Foundation, the Roy and PatriciaDisney Family Foundation, the David Bohnett Foundation, andthe Elizabeth Taylor AIDS Foundation have given generouslyover the years. These grants are critical to the sustained operationof the projects, and we are thankful to the foundations and tothe LACBA attorneys who developed those relationships.
Events and Awareness. In October, several Los Angeles lawfirms combined to raise funds for LACBA’s AIDS Legal ServicesProject by participating in the AIDS Walk Los Angeles. Campaignsalso were conducted to highlight National Domestic ViolenceAwareness Month in October, Veterans Awareness Month and#GivingTuesday in November, and year-end giving in December.An awareness campaign for the Immigration Legal Services Project
is planned for early next year. CFJ is also pleased to obtain fundingfrom the arts community, such as the Los Angeles Lawyers Phil -harmonic, Legal Voices, and Gary Greene, Esq. and His Big Bandof Barristers. If your musical preference is rock, CFJ has beensponsored by the law firm of Reed Smith and the band Down by Law at the annual Law Rocks charity event at Holly wood’sWhisky a Go Go. Please support these groups and events. Theyare wonderful musicians and well worth the time.
In the spring, attention turns to outdoor events, and on May21, 2018, CFJ will hold its ninth Annual Charity Golf Tournamentat Mountain Gate Country Club. Last year, under perfect weather,nearly 100 golfers attended, and thanks to our sponsors, CFJnetted almost $50,000. Please show your appreciation and giveyour support to the following sponsors when you are able:Decision Quest, TSG Reporting, Fronteo, Wells Fargo, PersonalCourt Reporters, Veritext, Staples Center Premium Seating,Coalition Court Reporters, Esquire Deposition Solutions, andFirst Legal Network.
Board Members. Counsel for Justice is fortunate to have somany energetic and dedicated volunteer board members. Eachmember makes a significant personal financial donation to theLACBA projects and also seeks a corresponding commitment fromhis or her firm or company and from colleagues. Board membersparticipate in outreach to the LACBA community by encouragingattendance at CFJ events, following up on leads to major donorsand grants, building awareness by publishing articles about theprojects, and thanking those who have donated and encouragingtheir continued support. If you are interested in becoming a boardmember, please go to our webpage to learn more.
How Can I Help? The LACBA projects are still in jeopardy.The cy pres award for the Domestic Violence Legal ServicesProject runs out this year, leaving a large budget gap to fill. Eachproject has also reported that the need for services has increased.Many volunteers are donating their own money to keep theprojects running at their current level. To all LACBA attorneys:Please include CFJ in your year-end giving. All of your dollarswill go to support legal services for those in Los Angeles Countywho cannot afford them.
If you have not donated before, please go now to the LACBAwebsite and press the “Donate CFJ” button. If you have not yetpaid your LACBA dues, include a generous amount for the pro-jects. If you have made a donation, please consider if you areable to supplement. It is very much needed. If every LACBAmember gives the dollar equivalent of “one billable hour,” wewill continue to make a lasting impact on the lives of thousandshere in our own community. n
closing argument BY MARK GARSCIA
It Takes Diverse Sources to Fund LACBA’s Charitable Projects
Mark Garscia is president of LACBA’s Counsel for Justice and a partner inLewis Roca Rothgerber Christie’s intellectual property practice group in LosAngeles.
