Los Angeles Lawyer Magazine February, 2019

THE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATION

FEBRUARY 2019 / $5 PART 1 OF 2

PLUS Executive Coaching for RBG at Lawyers Skirball page 24 page 32

On Direct: Robert Ragland, L.A. County Public Health Counsel page 13 EARN MCLE CREDIT CCP998 Update Opening page 16 Secrets

Los Angeles lawyers Christine N. Wood and Alexander Brand provide guidance regarding enactment of Senate Bill 1421, which amends the Public Records Act to permit greater access to California peace ofﬁcer records page 18

FEATURES

18 Opening Secrets BY ALEXANDER BRAND AND CHRISTINE N. WOOD Newly enacted Senate Bill 1421 allows greater latitude in the public disclosure of peace officer personnel files Plus: Earn MCLE credit. MCLE Test No. 285 appears on page 21.

24 Leading Lawyers BY CYNTHIA FLYNN AND ANTHONY J. MULKERN Executive coaching is a powerful tool to help law firms manage the fast-paced pressures of the twenty-first century

Los Angeles Lawyer DEPARTME NTS the magazine of the Los Angeles County 8 LACBA Matters 16 Practice Tips Bar Association LACBA delegates attend California Cost factors related to Code of Civil February 2019 Conference of Bar Associations Procedure Section 998 BY TAMILA C. JENSEN AND ALICE SALVO BY BRIAN S. KABATECK AND STEPHANIE CHARLIN Volume 41, No. 11 10 President's Page 32 Profile COVER PHOTOS CREDIT: Notorious RBG: The life and times of Ruth TOM KELLER Increasing LACBA membership is everyone's responsibility Bader Ginsburg BY BRIAN S. KABATECK BY GILLIAN H. CLOW

13 On Direct 36 Closing Argument Robert Ragland, Principal Deputy County Statutory constraints on partnership Counsel, Los Angeles County Department agreements LOS ANGELES LAWYER (ISSN 0162-2900) is published BY JEFFREY HURON monthly, except for a combined issue in July/August, by the of Public Health Los Angeles County Bar Association, 1055 West 7th Street, BY DEBORAH KELLY Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period - icals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: 15 Barristers Tips $38 annually; single copy price: $5 plus handling. Address Legal consequences of failing to manage changes must be submitted six weeks in advance of next issue date. POSTMASTER: Address Service Requested. Send work stress and fatigue address changes to Los Angeles Lawyer, P. O. Box 55020, BY ROSS DILLION Los Angeles CA 90055. 02.19 Visit us on the internet at www.lacba.org/lalawyer E-mail can be sent to [email protected] Follow Los Angeles Lawyer on Twitter at @LALawyerMag

EDITORIAL BOARD Chair THOMAS J. DALY Articles Coordinator TYNA ORREN Articles Coordinator JUSTIN KARCZAG Secretary TBD Immediate Past Chair JOHN C. KEITH

JERROLD ABELES (PAST CHAIR) TOM K. ARA SCOTT BOYER NORMAN A. CHERNIN CHAD C. COOMBS (PAST CHAIR) KEITH A. CUSTIS GORDON K. ENG MICHAEL A. GEIBELSON (PAST CHAIR) SHARON GLANCZ GABRIEL G. GREEN STEVEN HECHT (PAST CHAIR) DENNIS F. HERNANDEZ HON. MARY HOUSE TIFFANY BACI HUNTER MARY E. KELLY (PAST CHAIR) KATHERINE KINSEY DIANA HUGHES LEIDEN LYDIA G. LIBERIO CAROLINE SONG LLOYD PAUL S. MARKS (PAST CHAIR) SANDRA MENDELL COMM’R ELIZABETH MUNISOGLU CARMELA PAGAY GREGG A. RAPOPORT JACQUELINE M. REAL-SALAS (PAST CHAIR) SHAIL PANKAJ SHAH LACEY STRACHAN THOMAS H. VIDAL

STAFF Editor-in-Chief SUSAN PETTIT Senior Editor JOHN LOWE Art Director LES SECHLER Director of Design and Production PATRICE HUGHES Advertising Director LINDA BEKAS Senior Manager MELISSA ALGAZE Administrative Coordinator MATTY JALLOW BABY

The opinions and positions stated in signed material are those of the authors and not by the fact of publication necessarily those of the Association or its members. All manuscripts are carefully considered by the Editorial Board. Letters to the editor are subject to editing.

4 Los Angeles Lawyer February 2019 LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATION OF THE LOS ANGELES COUNTY BAR ASSOCIATION 1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553 Telephone 213.627.2727 / www.lacba.org

LACBA EXECUTIVE COMMITTEE President BRIAN S. KABATECK President-Elect RONALD F. BROT Senior Vice President TAMILA C. JENSEN Vice President BRADLEY S. PAULEY Treasurer WILLIAM L. WINSLOW Vice President Of Diversity/Affiliate Outreach PHILIP H. LAM Assistant Vice President REAL ESTATE DISPUTE CONSULTING FELIX THOMAS WOO Assistant Vice President DANIEL J. BUCKLEY WARONZOF ASSOCIATES Assistant Vice President Timothy R. Lowe, MAI, CRE, FRICS KRISTIN ADRIAN Immediate Past President •economic damages •lease disputes MICHAEL E. MEYER •fair compensation •land use disputes Barristers/Young Attorneys President • JESSICA GORDON property valuation •partnership interest value Barristers/Young Attorneys President-Elect •lost profits •reorganization plan feasibility VICTORIA MCLAUGHLIN Waronzof Associates, Incorporated 310.322.7744 T 424.285.5380 F Executive Director/Secretary 400 Continental Boulevard, Sixth Floor [email protected] STANLEY S. BISSEY El Segundo, CA 90245 www.waronzof.com Chief Financial & Administrative Officer BRUCE BERRA BOARD OF TRUSTEES SUSAN J. BOOTH JESSE A. CRIPPS GARY A. FARWELL TANYA FORSHEIT JO-ANN W. GRACE JOHN F. HARTIGAN AMOS E. HARTSTON DANIEL T. HUANG RICHARD L. KELLNER JENNIFER W. LELAND EVE LOPEZ MATTHEW W. MCMURTREY F. FAYE NIA ANN I. PARK MICHAEL R. SOHIGIAN EDWIN C. SUMMERS KENDRA THOMAS KEVIN L. VICK 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 SOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATION WOMEN LAWYERS ASSOCIATION OF LOS ANGELES

Los Angeles Lawyer February 2019 5 have never worked with an executive coach. As noted in the article, “Leading Lawyers,” by Cynthia Flynn I and Anthony J. Mulkern on page 24, while relatively common in the corporate world, executive coaches are not widely used by the legal profession. In fact, my experience

has been that should an attorney want to use an executive coach in a law firm setting, the attorney would be expected to pay for the expense of the coach out of pocket. A law firm normally would step up to pay for a coach or an advisor for an attorney only if that attorney was struggling. As a result, executive coaching has carried a bit of a negative connotation in the legal arena. The attitude has been that only a weak attorney would need to rely upon a coach for support. Now, I wonder how much better my experience within the legal profession might have been had I taken advantage of the services of an executive coach. I did have mentors who helped to guide and assist me. However, I was drawn to them, and they likely were willing to serve as mentors to me, because of similarities in the way we approached the practice of law. They provided excellent guidance and training but served more to affirm my choices than to act as agents of change. How refreshing it would have been to receive input from a more objective observer— though it might also have been challenging and ego-deflating at times. We can all get complacent. Anyone can fall into a rut. Not many of us truly enjoy operating outside our comfort zone. Yet, how much more rewarding might our practices be if we had someone to nudge us when we get stuck, and encourage and support us when we need to reach outside our comfort zone to achieve a worthwhile goal. In some cases, a good mentor could serve this role. Also, some of us are truly self-starters, but I can see where I would have benefitted from having an executive coach. At the very least, looking back, I can see times when I might have made changes that improved my practice more quickly had there been some outside guidance. The legal profession seems to be opening up to a greater diversity of people and world views. This expansion of viewpoints should only make us more inclusive and, therefore, stronger as a profession. Hopefully, it also means that, as a profession, we are more open to alternative solutions for developing a healthy and satisfying legal practice. The practice of law remains a tough and demanding profession. We still face time pressures, economic pressures, and the expectations of our clients—great reasons to explore and adopt best practices from other fields that can help us perform better while reducing stress. n

Thomas J. Daly is the 2018-19 chair of the Los Angeles Lawyer Editorial Board. He is a partner in Lewis Roca Rothgerber Christie’s Intellectual Property practice group in Los Angeles. A litigator, he focuses on strategies to obtain and protect patents and trademarks.

6 Los Angeles Lawyer February 2019

LACBA matters BY TAMILA C. JENSEN AND ALICE SALVO

LACBA Delegates Attend California Conference of Bar Associations

THE LOS ANGELES COUNTY BAR ASSOCIATION was among the 23 bar associations that sent delegates to the annual meeting of the California Conference of Bar Associations (CCBA) in San Diego September 13-16. The 200 delegates who attended considered 147 resolutions during the three-day conference. In the 2017- 2018 legislative year, CCBA was involved in 40 bills as a sponsor, co-sponsor, or supporter. Among sponsored bills, 13 bills in which the conference played a role were signed into law by Governor Jerry Brown, and 13 more were on the governor’s desk at the time of the conference. The CCBA was formed in 2002 as successor to the Conference of Delegates of the State Bar of California, which was formed more than 60 years ago to promote legislation propounded by individual delegates and California bar associations. The annual conference of CCBA is held in the fall to consider resolutions proposing amendments to existing laws and the adoption of new legislation by the California legislature. Resolutions approved in principle by the conference are eligible for inclusion in the annual CCBA legislative program. The CCBA engages a lobbyist Delegates may write a resolution, consider and report on reso- in Sacramento who works to pair resolutions with legislators lutions proposed by others, attend the conference, engage in who can introduce them as bills. The lobbyist also provides debate on the proposed legislation, and support the bills in the advice and advocacy. legislature. Since 2010, over 100 chaptered bills have originated from The resolutions committee of LACBA’s delegation to the 2019 CCBA resolutions, an unparalleled record of achievement for a Conference of California Bar Associations will soon start drafting single organization. The CCBA provides a practical way for resolutions for consideration at the conference in Monterey in rank-and-file members to propose legislation that otherwise October. Members of LACBA who would like to participate would not come to the attention of the legislature and to have a should contact Michele Anderson, chair of the 2018-2019 del- reasonable opportunity to see their proposal become reality. egation at https://www.lacba.org/delegation. LACBA5SPONSORED LEGISLATION 2017 Statutes of 2017. Resolut ion April 11, tary of state. Chapter 769, Statutes of olution June 7, 2013. SB 235 Allen Elections: ballot des- 2015. 2016. Resolution June 2, 2014. AB 1156 Brown Imprisonment in ignation requirements. October 5, 2016 SB 1431 Morrell Service of summons county jail. September 30, 2015. or subpoena. July 22, 2016: Chapter - Chaptered by secretary of state. 2017: Approved by the governor. AB 2013 Jones-Sawyer Criminal ed by secretary of state. Chapter 88, Chapter 378, Statutes of 2015. Res - Chaptered by secretary of state. procedure: arraignment pilot pro- Statutes of 2016. Res olution June 12, olution February 6, 2013. Resolution Chap ter 512, Statutes of 2017. Resolu - gram. September 27, 2016: 2015. February 7, 2013. Resolution tion July 11, 2016. Chaptered by secretary of state. Sept ember 1, 2013. SB 355 Mitchell Reimbursement for Chapter 689, Stat utes of 2016. 2015 AB 1375 Thurmond Criminal penal- court appointed counsel. July 10, Resolution April 3, 2015. AB 730 Quirk Controlled sub- ties: nonpayment of fines. August 2017: Approved by the governor. AB 2765 Weber Proposition 47: stances: transport. July 13, 2015: 13, 2015. Chaptered by secretary of Chaptered by secretary of state. sentence reduction. September 28, Chaptered by Secretary of State. state. Chapter 209, Statutes of 2015. Chap ter 62, Statutes of 2017. Resolu- 2016: Chaptered by secretary of Chap t er 77, Statutes of 2015. Resolu - Res olution June 2, 2014. tion July 11, 2016. state. Chapter 767, Statutes of 2016. tion October 5, 2014. SB 411 Lara Crimes. August 11, 2015: SB 625 Atkins Juveniles: honorable Resolution LF January 2015. AB 830 Eggman Civil actions: Chaptered by secretary of state. discharge. Oct ober 11, 2017: Ap - AB 2839 Thurmond Criminal penal- gender violence. August 13, 2015. Chapter 177, Statutes of 2015. proved by the governor. Chapter ed ties: nonpayment of fines. Sept - Chaptered by Secretary of State. Resolution December 1, 2012. by secretary of state. Chapter 683, ember 28, 2016: Chaptered by secre- Chapter 202, Statutes of 2015. Res -

Tamila C. Jensen is senior vice president of the Los Angeles County Bar Association Board of Trustees. Alice Salvo is a member of the LACBA delegation to the Conference of California Bar Associations and was chair of the delegation in 2018.

8 Los Angeles Lawyer February 2019 president’s page BY BRIAN S. KABATECK

Increasing LACBA Membership is Everyone's Responsibility

THE TIME HAS COME for us to have a real firms, I am certain we will draw lawyers young and old to a 30- and serious discussion about membership. minute onsite lunchtime presentation about the benefits of belong- For the past 18 months, we have been ing to LACBA. focused on making the Los Angeles County 3) Identify which firms offer to pay for one voluntary bar asso- Bar Association a better organization. ciation membership and work to get in front of those firms so Some of the accomplishments we have lawyers will exercise their option by selecting LACBA. Many achieved include increased transparency, lawyers do not select any bar association at all and may not revitalized and energized sections, changing even know about their firm’s policy. Los Angeles Lawyer magazine to be more 4) Become salespeople. I am challenging every member of LACBA engaging and diverse, making LACBA itself to bring in five new members in the next 60 days. It is not hard. more diverse and inclusive, providing the sections with autonomy If you are reading this magazine, you are interested in and care and encouragement to develop their own programs, turning about LACBA. If you come to meetings, if you belong to a around the fund-raising arm of the organization, developing pro- section, you care about LACBA. You are the best salespeople— grams that reach out to all parts of the county, offering free edu- not staff, not a call center, but you. cational programs to our members, doing more with fewer 5) Reach out to lawyers who have dropped their LACBA mem- resources, and forcing fiscal responsibility. We did all of this bership in the last five years and get them interested in joining while developing a host of other membership benefits. again. However, as we enter the second half of my one-year term as 6) Improve communications with the membership. This means president, a significant problem remains endemic to LACBA: providing members with more focused bulletins about great few take responsibility for building membership. There it is, events. Our LACBA app is coming soon and it will allow members plain, simple, and blunt. We have come institutionally to believe to design their own experience and receive information about that increasing membership is somebody else’s responsibility. events quickly. This, like so many other things, needs to change. 7) Gain media and press attention for our good work. It is easier In the 1989 motion picture Field of Dreams, the lead character to promote LACBA to people who are already informed about hears a voice that repeats, “If you build it, they will come.” That the benefits we offer. sums up the mantra that we in leadership at LACBA have adopted. 8) Be accountable. If you are involved in LACBA, membership From committee members appointed by the president and section is your responsibility, and all personnel and lawyers involved leaders elected by their respective sections to Counsel for Justice, need to take on that responsibility. the board of trustees, and even the president, there is a general We can no longer assume that membership development is belief that if we build a better bar association and offer better somebody else’s responsibility. More important, we cannot expect benefits, if we are more inclusive, if we do the right thing, people paid staff to work on membership while we sit idly by and do will join. Unfortunately, they will not. Plain and simple, mem- nothing. There are many concerned and dedicated LACBA membership in LACBA is the responsibility of everyone. This means bers who have devoted considerable time to increasing membership that you, reader, are also responsible. in the last three years. Moreover, there are scores of fine lawyers A generation ago, a young lawyer would join a firm in Los who have been actively involved in LACBA for the past 25 years Angeles out of law school and that firm would automatically and still care about it. Everywhere I go, people approach me pay for his or her membership in the State Bar and in LACBA. and comment on the good work that our leadership team and It was de rigueur. In most firms today, that is no longer the case. senior staff have done to make LACBA a better bar association. Many firms offer to pay for membership in one voluntary bar While that is wonderful to hear, it is time to start asking our association; some do not even do that. Today, LACBA competes concerned members what they are doing to make this a better for membership in a crowded field of excellent affiliated and bar association. related bar associations.What can we do? Let’s stop talking and start doing what we can to bring in 1) Take responsibility for membership. If you are in leadership new members. Lawyers in Los Angeles County are not going to in LACBA or have been in leadership or want to be in leadership, beat down our door. We must take the responsibility. n you should be out there getting your colleagues and friends to join. No excuses. The 2018-19 president of the Los Angeles County Bar Association, Brian S. 2) Promote the benefits of membership. We are launching a cam- Kabateck, is founder and managing partner of Kabateck LLP in Los Angeles paign in which the board of trustees and other LACBA leaders where he practices in the areas of personal injury, insurance bad faith, phar- will reach out to firms to raise awareness of the many benefits maceutical litigation, wrongful death, class action, mass torts, and disaster of membership. With the assistance of our members in those litigation.

10 Los Angeles Lawyer February 2019 LEADING LACBA CELEBRATING 140 YEARS

Looking Back In celebration of the Los Angeles County Bar Association’s 140th anniversary, past presidents share their recollections of the challenges and triumphs during their term of oﬃce. Look for more remembrances in these pages throughout the year.

turn that started in 2008, but with some hard budgetary decisions, we were able to maintain the robust offerings of events, services, and pro- gramming that LACBA was known for.

Hon. Richard Burdge, Jr. John D. Taylor Hon. Margaret M. Morrow 2012-2013 1978-1979 1988-1989 am Williams was pres- ooking back to the year I was LACBA ident during the first 2012-2013 bar year president there half of LACBA’s brings back many were no unex- SCentennial Year and L good memories. T pected crises, and I was president during the sec- We were blessed with very we were able to concentrate ond half. It was an exciting talented officers and trustees on substantive issues and pro- time. We had over 15,000 who have become lifelong Rex S. Heinke grams. The Board of Trustees members and were the largest friends. We also had a very 2000-2001 adopted a Pro Bono Policy local bar association in the committed and hardworking urging law firms to ensure country. staff for which I am personally n my year, the Internet that their lawyers performed a Everyone seemed enthusi- thankful. and e-mail were still new. minimum number of hours of astic about celebrating the It was a challenging time. Humans do not like pro bono service annually. All association’s 100th birthday. The courts were cutting back Ichange and often resist major firms in the city signed We had some excellent lun- on services and staff due to new technology. Luddites! on. The board also passed cheon meetings. U.S. the statewide budget cuts. The challenge was how to professionalism guidelines Attorney General Griffin Bell We at the bar spent consider- get our members to use these that both the state and fed- spoke to over 700 at the able time investigating how new tools. At every opportu- eral courts ultimately adopted Biltmore Bowl. The big event the bar could help ease the nity we explained how to use as rules of court. In addition, was when President Jimmy transition to a different court our new website and e-mail, we enacted goals and objec- Carter addressed over 3,000 structure, and several sections and how they made things tives for law firms’ hiring, at the Dorothy Chandler and committees contributed cheaper, faster, and more retention, and promotion of Pavilion. significantly to that effort. convenient. Our explanations lawyers of color that were well The first issue of Los Working with lawyers worked. Use soared. Hard to received in the community. Angeles Lawyer was pub- throughout the state and the believe this was ever an issue. These are the highlights; we lished. We published the Open Courts Coalition, we worked on lots of other issues, largest (608 pages) pictorial sought increases in court and we all had fun pulling directory ever printed. The funding from the legislature. together to make the profes- cost of my very nice installa- We also struggled with our sion stronger and better. tion luncheon at the Biltmore, own budget problems result- including tip, was $7.50. ing from the financial down-

Los Angeles Lawyer February 2019 11

on direct INTERVIEW BY DEBORAH KELLY

Robert Ragland Principal Deputy County Counsel, Los Angeles County Department of Public Health

see litigation and general transactional toxicology, to work in the community to matters. respond to and prevent exposure to toxic substances. More than 10 million Los Angeles County residents are served by DPH. How are the Where do the toxic substances come from? finances? Many of the services provided are They usually come from industry. cost-neutral. For example? Chromium-6 emissions in How so? If you own a restaurant or large Paramount from chrome platers. apartment building, you have to get a public health permit. Under Proposition 26 and Do poorer communities suffer more from other laws in California, the cost of the per- these issues? Yes. mit has to be reasonably related to the cost Another example? The California Depart- to run the program. ment of Toxic Substance Control and DPH With a budget of $893 million, does the have determined that there is a 1.7-mile ra- Board of Supervisors give DPH enough dius of lead pollution around the now-closed money? Yes. This board has been very Exide Battery Recycling Center in Vernon. There is an effort to clean up the lead and has served as Principal Deputy proactive and they want to give the commu- Robert Ragland hold the producing party responsible. County Counsel of the Department of Public nity the health protection and health promotion services that it needs and deserves. Health (DPH) since 2003. He has represented Are you going to sue them? That’s not my the DPH, including the Emergency Prepared - How large is DPH? With approximately decision. ness and Response Program, since 2000. 4,000 employees, it is probably the first or Ragland also has represented the county’s Who sues the wrongdoers? The county will second largest public health department in Department of Health Services (DHS) and the sue private industry. One example of that is in the nation, maybe the world. Department of Coroner. He received his law our long-standing lawsuit against former degree from Southwestern University School of What accommodations are made for non- manufacturers of lead paint, which is People Law and undergraduate degree from the English speaking residents? There are v. Con Agra. We are trying to collect our University of California at Santa Barbara. Spanish speakers at the meetings, and many judgment and provide lead paint abatement people working for DPH speak Spanish. for families within Los Angeles County. DPH translates public documents in up to Any others? We filed an action against opi- 11 languages. oid manufacturers because of the addictive What is the happiest moment of your day? qualities of opioids and are trying to be able When I walk downstairs and see my wife With more than 39 programs, which DPH to help stem addiction and other issues with on the couch, and she has a tea for me. program do you think is most important? They all do important functions that protect people who are now addicted to opioids. You obtained your law degree in 1994. Why or promote the health of the citizens of Los How big a problem is that in Los Angeles? did you want to become an attorney? I was Angeles County. Sizable. fascinated with how the law interacted Each program is equal? Every program has with people on an everyday basis. What are the powers of health officers? its time that it has to step up. Recently, DPH They may take action to stop the spread of You were raised in Seal Beach but commut- took heroic steps to limit the spread of he- contagious and infectious disease, protect ed to Loyola High School. How was that? I patitis A among high-risk individuals. Staff people from exposure to hazardous and got the benefit of being at a great high from DPH walked the river where homeless harmful emissions or substances, and to ob- school in the heart of Los Angeles yet grew people were encamped. That’s why an out- serve and enforce statues, regulations, and up in a small town. break didn’t happen to us like it happened ordinances related to protecting the public’s to San Diego. As Principal Deputy County Counsel, as- health. signed as lead counsel for the DPH, what Is there a program you would add? DPH is Can they civilly detain a contagious tuber- are your job duties? I handle the vast ma- ramping up its Environmental Justice pro- culosis patient who won’t take medication? jority of legal issues, ranging from environ- gram. The board has allocated some new Yes. mental threats to disease control and over- positions, specifically for environmental

Los Angeles Lawyer February 2019 13 As to public health, what is the one thing tives to gain access to the possessions of the What are your retirement plans? My wife Jack and Jill Public should do? Wash their decedent. Remember, we live in Hollywood. has retirement plans for me. hands. When you go to court, what do you make What is your favorite three-day getaway Are we prepared for the next outbreak? For sure to have with you? An outline of my ar- spot? Santa Barbara. disease control purposes, there are mandato- gument on an old-school yellow pad. ry reporters who are required to report from Do you answer your e-mail while out of a list of communicable diseases within a cer- In August 2018, the DPH announced the for- town? Yes. I am 24/7 for the department. tain period of time any lab test or diagnosis mation of Centers for Health Equity. Why? Where do you take your wife for a fancy din- of a particular disease. DPH is on it every day. We noticed that there are certain areas where health outcomes of certain individuals are af- ner and what do you order? The Odium near What does DPH worry about more than any- fected by their surroundings and race. the Broad, and I order the fried chicken. thing else? A bioterrorism attack. In the summer of 2018, the DPH website How do you get your news? From my The DPH was once part of the DHS. What posted extreme heat warnings. How did you iPhone—Google News, Reuters, and the changed? The Board of Supervisors decided help? Heat is very dangerous for people Washington Post. to remove the DPH from DHS. As that deci- who are elderly or otherwise compromised, What is your favorite movie? Casablanca. sion matures, we are seeing a DPH that is and it’s only going to get worse with global much better able to meet the need of indi- warming. We have cooling centers that have What television shows do you binge watch? vidual communities. air conditioning where people can go. Downton Abbey and Friday Night Lights.

To which codes do you most often refer? The The West Nile virus has come to Los Angeles Who is your favorite music group and California Code of Regulations and the County via mosquito bites. Is it widespread? singer? U2 and Bono. Health and Safety Code is where I live. No, but there are spikes. People need to use DEET, wear long sleeves at dusk, and not What are the three most deplorable condi- From 2005 to 2016, you were the lead coun- allow standing water on their property. tions in the world? Poverty, starvation, and sel to the Medical Examiner-Coroner. What hubris. was a routine legal issue? Helping them What do you do in your free time? I coach navigate issues that they were having with flag football in Los Alamitos. Who are your two favorite U.S. presidents? family about possessions of the decedent. Lincoln and Obama. Is Chronic Traumatic Encephalopathy, or Such as? Messy family situations—people CTE, resulting from tackle football a public What would you like written on your tomb- who were trying to pretend they were rela- health issue? Absolutely. stone? Good internal compass.

14 Los Angeles Lawyer February 2019 barristers tips BY ROSS DILLION

Legal Consequences of Failing to Manage Work Stress and Fatigue

LAW PRACTICE IN THE UNITED STATES is adversarial and the The judge returned to the matter of determining sanctions average attorney will likely be overworked, but every attorney but kept referring to the unbound papers. On the fifth reference, should strive to maintain a workload that allows him or her to the defense counsel blurted out asking what it had to do with give the proper respect to the parties, the profession itself, and the sanctions, which only caused the judge to chastise the defen- the court. This maxim finds support in the Rules of Professional dant and immediately move to the amount of sanctions. The Conduct, requiring attorneys to withdraw when their mental or judge did not question whether the amount the plaintiff requested physical condition renders them unable to effectively represent was reasonable and lamented he was not able to increase the a client.1 Failing to adhere to this advice is not only a potential amount in order to punish the attorney.3 The judge awarded ethics violation but leaves one open to the court’s inherent power over $1,000 in sanctions, forcing the defendant to self-report to control proceedings before it, and to punish and redress liti- the judicial sanctions imposed against him to the state bar.4 gation misconduct.2 Many Degrees of Disrespect By way of example, a tired, overworked attorney allowed his workload to get the better of him, which led to sanctions. The Attorneys are held to a higher standard of conduct and are ultimate act that led to the motion for sanctions by the plaintiff expected to appropriately self-manage to avoid the three mistakes was the defendant’s forgetting to send an e-mail. It began when the defendant in this example made. the defendant propounded a series of interrogatories late in the 1) The defendant demonstrated a lack of courtesy and respect litigation. Prior to the due date for the plaintiff’s responses, the to the opposing party and counsel by telling the plaintiff he plaintiff notified the defendant by telephone she was going to would send written confirmation but never doing so, despite dismiss a cause of action that made the interrogatories moot. further communications by the plaintiff. The plaintiff requested that the defendant confirm in writing 2) The defendant disrespected the profession by blaming the that he would withdraw the interrogatories, and the defendant secretary for errors in front of a judge—an amateurish mistake. verbally agreed. Each attorney must demonstrate competence and ethics after A week went by with no follow-up by the defendant. The over half a decade of graduate and postgraduate study before plaintiff reached out via phone and e-mail with no response. he or she can be admitted to the bar. Justifiably then, attorneys The due date for the responses to the discovery approached, and are expected to be the arbiters and last checkpoint for all items with no response by the defendant, the plaintiff rightly drafted submitted to the court. objections to preserve her client’s rights. The plaintiff thereafter 3) The defendant disrespected the court by interrupting the judge noticed a motion for sanctions, but the court did not have space and failing to address him as “your honor.” The tone of his available for a hearing until the final status conference. voice was anything but deferential. Besides the practical benefits of staying in the good graces of a judge, it is not easy to find a Judge Unimpressed judge less experienced than oneself without decades of practice. At the final status conference, the judge heard arguments from Judges have earned the respect one is expected to show them. both sides but was clearly in favor of the plaintiff from the begin- Even competent, experienced attorneys can fall prey to these ning. When it was the defendant’s turn to argue, he had little to mistakes when overworked and under the high pressure and say. His fumbling rebuttal amounted to a defense of being so demanding lifestyle of a litigation attorney. To help avoid mistakes swamped with other work that he never found time for a response due to work fatigue, it is important to be aware of one’s own and somehow missed all the follow up communications. The limitations and to communicate with superiors about the work- judge was unimpressed, chastising defense counsel and stating load and one’s ability to handle it. Finally, one must never be that the bread and butter of legal work is the long hours, nights, afraid to ask others for help. n and weekends. The judge then pulled out a stack of papers so thick it barely 1 CAL. R. OF PROF’L CONDUCT R. 3-700(B)(3). fit clenched between his thumb and fingers. It was a motion in 2 CODE CIV. PROC. §§128, 128.7, 2023.030(a); Cal. R. Ct. 2.30. limine submitted by the defendant which was enlarged by the 3 Williams v. Russ, 167 Cal. App. 4th 1215, 1223 (2008). When the court finds number of exhibits attached and held together by rubber bands. grounds to sanction an attorney, discovery sanctions may not be penal and must be proportionate to the offending party’s misconduct. Thus, the judge reminded the defendant of the local rules. The 4 BUS. & PROF. CODE §6068(o)(3) defendant had submitted a courtesy copy of the motion; however, the local rules stated any courtesy copies should be properly bound and tabbed. The defense counsel stumbled on his words Ross Dillion is an associate at Kramer Holcomb Sheik, LLP, in Los Angeles again and made some vague excuse essentially putting the blame where he focuses on business, intellectual property, including video game on his secretary. law, and entertainment litigation and transactions.

Los Angeles Lawyer February 2019 15 practice tips BY BRIAN S. KABATECK AND STEPHANIE CHARLIN

Cost Factors Related to Code of Civil Procedure Section 998

SINCE A HIGH NUMBER OF CASES SETTLE before trial, an attorney’s familiarity with California Code of Civil Procedure Section 998 is mandatory. Yet, even an experienced attorney may be uncertain about the consequences of sending or receiving a second Section 998 offer that is lower than one previously sent. Section 998 was created to promote early settlement. Whether one is counsel for the party serving a Section 998 offer or the party receiving one, every Section 998 offer requires careful consideration of the value of the case because a party rejecting a Section 998 offer who then fails to obtain a more favorable result at trial will be obligated to pay the opposing party’s post- offer costs—including expert costs, which can be extraordinary as trial approaches. These financial penalties should incentivize settlement. Section 998 provides that any party to an action may serve a written offer to an opposing party allowing for judgment to be entered on specific terms up to 10 days before trial. The opposing party has 30 days from the date the offer is served or until the On the other hand, if the plaintiff makes a Section 998 offer first day of trial (whichever occurs first) to accept the offer. that the defendant rejects and does not obtain a more favorable Otherwise, the offer is deemed rejected. Rejection of a Section judgment at trial then the court can award a “reasonable sum” 998 offer has consequences. for all expert fees the plaintiff incurred in preparing for trial If the defendant makes a timely Section 998 offer and the (pursuant to Code of Civil Procedure Section 1033.5 expert fees plaintiff wins at trial but does not obtain a more favorable judgment generally are not included in a prevailing party’s costs) and 10 than the Section 998 offer, the plaintiff cannot recover post-offer percent prejudgment interest on the judgment from the date the costs (even though he or she is the prevailing party) but also must first Section 998 offer was made.7 pay the defendant’s costs from the time the offer was made.1 Thus, Although Section 998 seems simple, it is deceptively so. There the court has discretion to require the plaintiff to pay a reasonable are intricacies that affect the cost-shifting burden, particularly, sum to cover post-offer expert costs.2 This could represent a sub- in those circumstances when multiple Section 998 offers are stantial financial detriment to the plaintiff. For example, if a Section made. Many of the challenges courts face revolve around whether 998 offer was made for $50,000 but the plaintiff only recovers the first or last offer controls. The general rule is that when a $25,000 at trial, the plaintiff cannot file a cost bill and has to pay subsequent Section 998 offer is served, it extinguishes the first the defendant’s costs, which will reduce or even completely eliminate offer, and therefore the latter offer is the only offer triggering the plaintiff’s entire recovery.3 the Section 998 cost-shifting provisions. Pursuant to Code of Civil Procedure Section 1032(b), “Except For example, in Wilson v. Walmart Stores, Inc., the plaintiff as otherwise expressly provided by statute, a prevailing party is served two Section 998 offers, the first was for $150,000 and the entitled as a matter of right to recover costs in any action or second was for $249,000, both of which were deemed rejected proceeding.” However, parties may also stipulate to alternative after the defendant did not respond within the statutory period of procedures for awarding costs, such as agreeing that each party 30 days.8 At trial, the plaintiff obtained a judgment in her favor is responsible for his or her own costs.4 In some circumstances, for $175,000 which was more than the first offer but less than a prevailing plaintiff is entitled to recover pre-offer costs irrespective the second.9 As a result, the plaintiff was not entitled to interest of any Section 998 offer so long as it is allowed by statute or a and costs.10 In Distefano v. Hall, the plaintiff obtained a verdict controlling contract provision.5 at trial for $12,559.96 which was more than the defendant’s In addition, the court has broad discretion when awarding the defendant’s costs to include costs from the time the complaint Brian S. Kabateck, founding and managing partner of Kabateck LLP, is the was filed and a reasonable amount to cover for any unpaid current president of the Los Angeles County Bar Association. He has argued expert expenses in preparing for trial. Problems arise, however, cases before the California State Supreme Court, California Court of Appeal, when the prevailing plaintiff is not able to obtain more than the Ninth Circuit Court of Appeals, and the Federal Circuit Court of Appeals. defendant’s Section 998 offer and the plaintiff’s recovery is less Stephanie Charlin is an associate with Kabateck LLP and has an expertise than the costs owed to the defendant, at which point the court in consumer class actions, personal injury, product liability actions, wrongful

RICHARD EWING may enter a judgment against the plaintiff for the difference.6 death, and insurance bad faith claims.

16 Los Angeles Lawyer February 2019 second offer of $10,000 but less than the Section 998, the first of which was found opportunity to take a step back and eval- first offer of $20,000.11 The court found by the court to be “impermissably vague.”22 uate both their case and how the other that the defendant was not entitled to After the second offer was acccepted, the side values theirs. Finally, a well-reasoned interest and costs.12 parties agreed to a negotiated settlement Section 998 offer serves as a useful tool However, there are certain circumstances whereby FCA agreed to pay the plaintiffs to control client’s expectations and force when the first offer controls and the court $76,000 and to deem the Etchesons the settlement discussions early. n will award costs incurred from the date of “prevailing parties for purposes of seeking 23 the first offer. In Martinez v. Bronco Con - an award of attorney fees.” 1 CIV. PROC. CODE §998(c). struction Company, Inc., the plaintiff served Subsequently, the plaintiffs moved for 2 Id. two unaccepted and unrevoked Section 998 an award of $89,445 in lodestar fees with 3 See, e.g., Litt v. Eisenhower Med. Ctr., Cal. App. offers and the defendant failed to obtain a a 1.5 enhancement, resulting in total fees 4th 1217 (2015) (losing defendant whose settlement offer exceeds judgment is treated for purposes of post- 24 more favorable judgment than either of the of $134,167.50 and $5,059.05 in costs. offer costs as if it were prevailing party). offers.13 In this instance, the court awarded Initially, the trial court found plaintiffs’ 4 Civ. Proc. Code §1032(c). the plaintiff expert witness costs from the counsel’s hourly rates and time spent on 5 See, e.g., Scott v. Blount, 20 Cal. 4th 1103 (1999) time the first Section 998 offer was made services to be reasonable and ruled that (finding that the plaintiff was entitled to pre-offer rather than from the second.14 Another plaintiffs were entitled to recover $81,745 costs pursuant to Code of Civil Procedure Section 1717 despite receiving judgment less than the defen- example of when the first Section 998 offer in attorney fees and $5,059.05 in costs, dant’s Section 998 offer). 25 controls is when a party withdraws a sub- thus excluding the multiplier. In the final 6 See CIV. PROC. CODE §998(e) (the net amount is sequent offer prior to its expiration.15 Thus, order, however, the court substantially awarded to the defendant). in personal injury cases, a plaintiff who reduced this award to a mere $2,363.90 7 See CIV. PROC. CODE §998(d). 8 makes several unaccepted Section 998 offers for both attorney fees and costs, arguing Wilson v. Walmart Stores, Inc., 72 Cal. App. 4th 382 . and obtains a judgment that exceeds all of that the plaintiffs should not have contin- 9 Id. them, the plaintiff is entitled to prejudgment ued to litigate the matter after the defen- 10 Id. interest from the date the plaintiff’s first dant’s first Section 998 offer.26 11 Distefano v. Hall, 263 Cal. App. 2d. 380 (1986). offer was served. In December 2018 the appellate court 12 Id. There are also specific qualifying con- reversed the trial court’s decision. Stating 13 Martinez v. Bronco Constr. Co. Inc., 56 Cal. 4th 1014 (2013). ditions when a case involves multiple plain- that Section 998 “is intended to encourage 14 Id. tiffs or defendants. For example, only an settlement by punishing the party who fails 15 See One Star, Inc. v. Staar Surgical Co., 179 Cal. offer made to a single plaintiff, without to accept a reasonable offer,” the court App. 4th 1082 (2009) (court awarded the defendant need for allocation or acceptance by any ruled that none of the factors that trigger costs from the date of first offer when a second offer other plaintiff(s), qualifies as a valid offer a Section 998 penalty were to be found in was withdrawn thirteen days after service and before under Section 998.16 An exception is made, this case.27 Therefore, the use of the first plaintiff accepted). 16 Meissner v. Paulson, 11 Cal. App. 3d 785, 791 however, when plaintiffs have a unity of Section 998 offer on March 13, 2015, to (1989); see also Menees v. Andrews, 122 Cal. App. interest, e.g., a married couple’s interest eliminate the plaintiffs’ attorney fees was 4th 1540, 1544 (2004). in community property.17 “arbitrary and unsupportable.”28 17 Vick v. DeCorsi, 110 Cal. App. 4th 206, 210-11 Similarly, a settlement demand by sev- Etcheson, thus, reaffirms a central point (2003). 18 eral paintiffs jointly does not qualify as a of Section 998, viz., when a defendant’s Gilman v. Beverly Cal. Corp., 231 Cal. App. 3d 121, 124-25; Fortman v. Hemco, Inc., 211 Cal. App. Section 998 offer unless it is absolutely settlement offer in litigation under the Song- 3d 241, 263 (1989). clear that the plaintiff recovers more at Beverly Act contains unfavorable provisions 19 Santantonio v. Westinghouse Broad. Co., Inc., 25 trial than would have been his or her share or is otherwise invalid (e.g., insufficiently Cal. App. 4th 102, 116 (1994); see also Perrson v. of the joint settlement.18 Likewise, a set- specific), rejection of that offer will not Smart Inventions, Inc., 125 Cal. App. 4th 1141, 1172 tlement offer by several defendants will trigger the penalty of Section 998by reduc- (2005). 20 29 Etcheson v. FCA US LLC, No. 37-2015-0004033- permit them to recover under Section 998 ing the award of the plaintiff’s costs. CU-BC-CTL (Cal. Ct. App. filed Dec. 6, 2018). only when they are sued on a theory of It is clear that while there is no harm 21 Id. at 2. joint and several liability or stipulate that in serving a Section 998 offer, parties must 22 Id. judgment be taken against them jointly ensure the offer is reasonable and made 23 Id. and severally.19 in good faith. Reasonableness is deter- 24 Id. 25 Id. The complexity that may arise in cases mined by looking at the circumstances 26 Id. at 3. 30 that involve awarding costs in connection when the offer was made. For example, 27 Id. at 30-31 (citing Elite Shows Svc., Inc. v. Staffpro, with a Section 998 offer is well illustrated courts may look at whether the offeree Inc. 119 Cal. App. 4th 263, 268 (2004)) (elements in a recent decision handed down in Divi - was given a fair opportunity to evaluate triggering Section 998’s penalty (failure by a plaintiff sion One of the Fourth Court of Appeal. the offer.31 However, a token or nominal to accept an offer and subsequent failure to obtain a In Etcheson v. FCA US LLC, the appellate offer made with no reasonable prospect more favorable result at trial) not “warranted…here”). 28 Id. at 31. court declared that the trial court had of acceptance will not pass the good faith 29 Id. at 21 (citing Goglin v. BMW of North Am., 4 “[e]rred as a Matter of Law” when applying test and will not be a valid basis for an Cal. App. 5th 462, 471 (2016)). the Section 998 penalty in awarding rea- award of costs.32 30 Hartline v. Kaiser Found. Hosp., 132 Cal. App. 4th sonable attorney fees.20 Although Section 998 offers may not 458 (2005). 31 Plaintiffs in this case originally sued the result in settlement as frequently as antic- Najera v. Huerta, 191 Cal. App. 4th 872 (2011); See also Aguilar v. Gostischef, 220 Cal. App. 4th 475 (2013) defendants under the Song-Beverly Con- ipated, they are a valuable tool that both (plaintiff’s Section 998 offer for $700,000, which was sumer Warranty Act (“lemon law”) due to plaintiffs and defendants should utilize. knowingly made in excess of the defendant’s $100,000 problems they encountered with a new car Because most costs are incurred closer to insurance policy limit, was made in good faith and purchase.21 The defendant, after admitting trial, the timing of when to serve a Section “realistically reasonable under the circumstances”). the vehicle qualified for repurchase, sub- 998 offer is not always significant. Every 32 Essex Ins. Co. v. Heck, 186 Cal. App. 4th 1513 (2010). mitted two offers to compromise under Section 998 offer provides litigants an

Los Angeles Lawyer February 2019 17 MCLE ARTICLE AND SELF-ASSESSMENT TEST By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for credit, please follow the instructions on the test answer sheet on page 21.

by Alexander Brand and Christine N. Wood OPENING

With passage of SB 1421, the Penal Code now allows for disclosure of peace officer records when there are claims of use of force or sustained claims of sexual assault or dishonesty

September 2018, Go vernor Jerry considered confidential and would only is being prosecuted for battery on a peace In Brown signed Senate Bill 1421, be disclosed in limited circumstances. In officer is entitled to discovery of certain amending sections of Calif - fact, California had been considered one investigation records to show whether the ornia’s Penal Code to allow the public to of the most secretive states in the country officer had a history of using excessive obtain some peace and custodial officer when it came to the disclosure of peace force and that the defendant acted in self- (collectively, peace officer) records with a officer personnel and disciplinary records. defense. In 1978, the California Legislature California Public Records Act (PRA) A party in a criminal or civil action seeking enacted Penal Code Sections 832.7 and request. This represents a departure from the disclosure of personnel files was 832.8, as well as Evidence Code Sections the status quo and could have significant required to follow the Pitchess motion 1043 and 1045, to codify “the privileges impact on policing, governance, and procedure, named for Pitchess v. Superior and procedures” for Pitchess motions.2 records retention. Court.1 Under this statutory framework, peace Prior to the passage of SB 1421, most In Pitchess, the California Supreme officer records could be obtained through peace officer personnel records had been Court held that a criminal defendant who a two-step process.

Alexander Brand is an associate in Best Best & Krieger LLP’s Municipal Law practice group, based in the Los Angeles office, where he represents public

agencies and private-entity clients in state- and federal-level litigation. Christine N. Wood, also an attorney in the firm’s Los Angeles office, is the director MICHAEL CALLAWAY of Public Records Act services and e-discovery counsel.

18 Los Angeles Lawyer February 2019

In the first step, the requester must peti- and the privacy rights recognized by the to lose some aspect of their individual pri- tion the court, showing good cause for statute. Recognizing the tension between vacy rights.25 release of the records or information sought the two sets of rights, the legislature inserted SB 1421 and materiality to the subject matter of a number of exemptions in the act, including the pending litigation. Good cause must the personnel records exemption.12 Some As of January 1, 2019, SB 1421 makes a be presented in the form of an affidavit, of the other exemptions within this section number of changes to Penal Code Section in which the affiant must allege officer of the Government Code include the medical 832.7 to allow for the release of records misconduct by providing a specific factual records exemption,13 the pending litigation that are related to three types of events: scenario establishing a plausible factual exemption,14 the tax payer information 1) use of force, 2) sustained claims of foundation for materiality.3 exemption,15 the voter information exemp- sexual assault, and 3) sustained claims of The second step commences if a judge tion,16 the library record exemption,17 and dishonesty. New Section 832.7 initially believes the threshold issues of good cause the public employee personal information maintains the status quo by retaining the and materiality are met. If so, a judge will exemption.18 language that asserts that peace officer hold an in camera hearing to review the Finally, the PRA provides for a “catch- personnel records are confidential.26 pertinent documents and determine what all exemption” that can be invoked if no However, subdivision b of new Section information, if any, will be disclosed based other exemption applies, but the agency 832.7 marks the beginning of a number on the statutorily defined standards of rel- must demonstrate that the public interest of exceptions to this general rule. evance defined in Evidence Code Section served by not making the record public With regard to the use of force, new 915.4 clearly outweighs the public interest served Section 832.7(b) makes records relating to If a judge determines that records shall by disclosure of the record.19 This is a high peace officer use of force disclosable under be disclosed, the judge will release the showing for the agency, but courts will sus- the follow circumstances: records under a protective order that limits tain this exemption if there is a clear cause (A) A record relating to the report, how the records may be used and attempt to protect confidentiality.20 investigation, or findings of any of to balance the requester’s need for disclo- the following: Reverse PRA Action sure and the officer’s right to privacy.5 For (i) An incident involving the dis- example, the judge may issue a protective Another tool that protects privacy rights is charge of a firearm at a person by a order that protects the officer or agency the reverse PRA action, a legal action allow- peace officer or custodial officer. from unnecessary annoyance, embarrass- ing a party to seek judicial restraint of the (ii) An incident in which the use of ment, or oppression.6 disclosure of a public record by a public force by a peace officer or custodial Beginning January 1, 2019, with pas- agency.21 Admittedly, reverse-PRA actions officer against a person resulted in sage of SB 1421, peace officer personnel do not arise from the PRA itself; these suits death, or in great bodily injury.27 records are disclosable in response to a are a creature of judicial lawmaking. In New Section 832.7 also allows the dis- PRA request if the records relate to use of essence, a private party must be notified of closure of records related to a sustained force, sustained claims of officer sexual the public agency’s decision to disclose the finding that a peace officer sexually a s - assault, or sustained claims of officer dis- records in question and permitted an oppor- saulted a member of the public.28 For pur- honesty. No underlying lawsuit is needed tunity to seek judicial review. However, poses of this section, both “sexual assault” nor will a Pitchess motion or in camera agencies must be careful because the “pur- and “member of the public” are specially review be required. poseful delay” in disclosure even for this defined. “Sexual assault” covers a broad reason could violate the agency’s disclosure range of acts including the initiation, or Public Records Act obligations under the PRA.22 attempted initiation, of a sexual act by a Adopted in 1968, the PRA is one of Cal - Overall, the right to privacy is balanced peace officer, by force, under color of if ornia’s two sunshine laws enacted to against the public’s right to know and will authority.29 The definition of sexual assault hold public agencies accountable by allow- carry different weight based on two factors: is broad, such that even a peace officer’s ing the public to inspect and copy records whether the information in the agency’s proposal to a member of the pub lic to in the agency’s care. This includes police possession was voluntarily or involuntarily commit a sexual act will be considered agencies. collected from the person holding the pri- sexual assault.30 In order for a record of The PRA states that “access to infor- vacy interest. “If personal or intimate infor- a sexual assault with a member of the pub- mation concerning the conduct of the peo- mation is extracted from a person (e.g., a lic to be disclosable, the victim of the ple’s business is a fundamental and neces- government employee or appointee, or an assault must be a member of the public sary right of every person in this state.”7 applicant for government employment/ that is not an employee of the peace offi- After all, the purpose of the PRA was to appointments a precondition for the cer’s agency.31 However, if the sexual as - create maximum disclosure of the govern- employment or appointment), a privacy sault victim is a member of a youth orga- ment’s conduct.8 The California Legislature interest in such information is likely to be nization affiliated with the peace officer’s decided that the disclosure of records was recognized.”23 agency, records related to such an incident necessary to help keep government account- Information, for example, collected by will be disclosable.32 able to the people,9 and the right was later the government for purposes of issuing a The final general category of peace offi- enshrined in the state constitution.10 The license is not disclosable.24 However, if cer records that can be obtained with a people’s right to disclosure under the PRA information is provided voluntarily in order PRA request under SB 1421 are records is broad and, when the government resists to acquire a benefit—such as a public con- related to sustained findings of peace offi- disclosure and is challenged, the courts err tract or a job with a public agency—a pri- cer dishonesty. New Penal Code Section on the side of disclosure of records to the vacy right is less likely to be recognized. 832.8(b) defines “sustained” as “a final public.11 In essence, those who voluntarily enter the determination by an investigating agency, Inherent in the PRA is the tension be - public sphere to obtain a public benefit— commission, board, hearing officer, or arbi- tween the public’s right to access records including public employees—should expect trator…following an investigation and

20 Los Angeles Lawyer February 2019 MCLE Test No. 285 MCLE Answer Sheet #285 OPENING SECRETS The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of 1 hour. You may take tests from back Name issues online at http://www.lacba.org/mcleselftests. Law Firm/Organization

1. Prior to passage of Senate Bill 1421, California was D. B and C. considered one of the most secretive states regarding E. All of the above. Address peace officer records. 12. SB 1421 changes the Penal Code to allow for the City True. release of peace officer records that are related to: State/Zip False. A. Use of force. E-mail 2. SB 1421 gives the public a constitutional right to B. Sustained claims of sexual assault. Phone access all peace officer records. C. Sustained claims of dishonesty. True. D. B and C. State Bar # False. 13. SB 1421 allows the disclosure of records regarding INSTRUCTIONS FOR OBTAINING MCLE CREDITS 3. When producing records under SB 1421, public agen- claims of sexual assault, regardless of whether the cies must release records or make them available for claims are sustained. 1. Study the MCLE article in this issue. inspection pursuant to the Public Records Act (PRA). True. 2. Answer the test questions opposite by marking True. False. the appropriate boxes below. Each question False. has only one answer. Photocopies of this 14. Records relating to a sustained finding that a peace answer sheet may be submitted; however, this 4. Exemptions within the PRA attempt to strike a balance officer lied in a police report are disclosable under SB form should not be enlarged or reduced. between the public’s right to access and the private 1421. 3. Mail the answer sheet and the $25 testing fee information in records. True. ($35 for non-LACBA members) to: True. False. Los Angeles County Bar Association False. 15. After SB 1421, the Penal Code makes records relating Attn: Los Angeles Lawyer Test 5. Under the PRA, the “catch-all exemption” can be to peace officer use of force disclosable when the fol- P.O. Box 55020 properly invoked if the agency demonstrates the public lowing incidents occur: Los Angeles, CA 90055 interest in the record is clearly outweighed by the public A. A peace officer discharges a firearm at a Make checks payable to: Los Angeles County Bar interest served by not disclosing the record. person. Association. True. B. A peace officer uses force that resulted in 4. Within six weeks, Los Angeles Lawyer will False. death. return your test with the correct answers, a C. A peace officer uses force that resulted in great rationale for the correct answers, and a 6. The reverse PRA action is a legal mechanism codified bodily injury. certiﬁcate verifying the MCLE credit you earned within the PRA. through this self-study activity. D. All of the above. True. E. None of the above. 5. For future reference, please retain the MCLE False. test materials returned to you. 16. After SB 1421, peace officers have no means to stop 7. If a public agency refuses to disclose records requested the disclosure of their records. ANSWERS pursuant to the PRA, the requester can bring an action True. seeking a writ of mandate, or injunctive or declaratory Mark your answers to the test by checking the False. appropriate boxes below. Each question has only relief. one answer. True. 17. After SB 1421, peace officer records will be disclosed False. if a sustained finding of officer dishonesty is still under 1. n True n False appeal. 8. If a judge finds that the public agency’s decision to 2. n True n False True. refuse disclosure of a record pursuant to the PRA is not False. 3. n True n False justified and determines that the requester is the pre- 4. n True n False vailing party, the requester will be awarded court costs 18. When records are released pursuant to SB 1421, and attorneys’ fees. the following information must be redacted: 5. n True n False True. A. Witness and victim information. 6. n True n False False. B. A peace officer’s personal identifying 7. n True n False information. 9. Prior to SB 1421, a Pitchess Motion was the only 8. True False C. Confidential medial or financial information. n n means to obtain peace officer records. D. All of the above. 9. n True n False True. E. None of the above. False. 10. n True n False 19. After SB 1421, peace officer records will be disclosed 11. A B C D E 10. Records or information that is not disclosable under n n n n n if there are sustained findings that the officer sexually SB 1421 may still be disclosable with a Pitchess motion. 12. n A n B n C n D assaulted the following: True. 13. n True n False A. A member of the public. False. B. A minor. 14. n True n False 11. In order to get information related to an officer’s C. Another employee of the law enforcement 15. n A n B n C n D n E conduct through a Pitchess motion, the petitioner must agency. 16. n True n False attest to the following: D. Only (a) and (b). A. Prior misconduct by the officer. E. All of the above. 17. n True n False B. Materiality to the subject matter of the 18. A B C D E 20. SB 1421 specifically identifies instruments of force: n n n n n pending litigation. True. 19. n A n B n C n D n E C. Good cause for the release of the records or False. information requested. 20. n True n False

Los Angeles Lawyer February 2019 21 opportunity for an administrative appeal… options that allow a public entity to delay lated agency policy or the law. The public that the actions of the peace officer or cus- the disclosure of records. For example, a entity may still need to apply these steps todial officer were found to violate law or public entity may withhold records related to give the employee notice; however, the department policy.” When there has been to the incident that is the subject of an public entity will first need to find a record a sustained finding that a peace officer was active criminal or administrative investi- demonstrating that there was a sustained dishonest in the reporting, investigation, gation.38 Generally speaking, this delay is finding that the misconduct occurred. prosecution of a crime or the misconduct limited to 60-120 days, but how long the Record Identification. Once the notice of a person or another peace officer, then public entity can delay disclosure will be procedures have been completed, the any record relating to that incident of dis- dictated by the facts of each case. public entity will need to make a determi- honesty is disclosable with a PRA request.33 nation that all identified records are suffi- Preparing for SB 1421 The three events are the only events that ciently related to the triggering event to trigger disclosure under the PRA. Once Although SB 1421 only took effect on justify disclosure. any of these three events occurs, a broad January 1, 2019, its impact will be felt for Non-Responsive Information. The pub- range of documents related to that event years to come. To prepare for an increase lic entity must redact all sensitive infor- are disclosable under the PRA. If the records in PRA requests for peace officer records, mation as required by the PRA and SB sought with a PRA request do not relate public entities should develop disclosure 1421 and produce the responsive records. to one of these three events, the records procedures and standards for ambiguous Establishing and following a procedure are not disclosable under SB 1421 but may terms and proactively develop a process similar to the one outlined above will allow be disclosable through other means such for identifying and gathering potentially public entities to identify and produce all as a Pitchess Motion. responsive documents. responsive records in a timely manner. It One way to minimize liability under also recognizes the balance between the Records and Production the PRA and ensure a complete production right of the public to the records requested The statute provides an exhaustive list of of records is to create a procedure for and the privacy rights of the officers whose the types of records to be disclosed, includ- record disclosure. Another benefit of estab- records are being sought and gives them ing, but not limited to, all: investigative lishing a procedure for disclosure is to notice that their records will be released reports, photos, audio and video record- ensure that employee privacy rights are unless they take action. ings, transcripts, documents presented to properly protected, especially since an Standards for SB 1421 Terms the district attorney for review, and copies employee’s personnel file generally is not of disciplinary records. A complete list can deemed a public record. Under SB 1421, As part of the disclosure process, public be found at new Penal Code Section the type of event that triggers the disclosure entities will want to have their own stan- 832.7(b)(2). (use of force, sexual assault, or dishonesty) dards for how to determine and apply the Prior to disclosing records pursuant to will dictate the procedures that the public terms used in SB 1421 since certain terms SB 1421, public entities must redact certain entity needs to follow. and events will trigger disclosures. Dev - categories of information as authorized Triggering Event. When a public entity eloping standards to address the following by the statute to protect the privacy interest receives a PRA request for peace officer key terms will aid a public agency in com- of certain individuals. For example, while records, it is necessary to consider whether plying with the PRA and producing a peace officer’s name is public, other per- the records are related to an event of officer records in a timely manner. sonal identifying information for the peace use of force, sexual assault, or dishonesty. Great Bodily Injury. When an officer officer or his or her family members must If the records do not relate to one of these uses force that results in death or great be redacted.34 A public entity must also events, then they are not disclosable pur- bodily injury of a person, disclosure of redact information to protect the identity suant to SB 1421. records is required. While death is likely of a complaining party, witness, or victim Reasonable Notice. Once a public agency self-evident, great bodily injury is ambigu- as well as confidential medial or financial has determined that one or more of the ous. When debating this bill, the state senate information, and information protected applicable events has been triggered, the specifically changed the language in the by federal law.35 Also, the statute provides public entity may consider providing notice statute from serious bodily injury to “great a catch-all basis for redaction. Public enti- to the office in which disciplinary records bodily injury” because there is a large body ties must redact relevant information when will be disclosed. The type of triggering of cases and statutes defining that term.39 there is an articulable risk of harm to the event will dictate which procedure the public By making this change it is likely that the peace officer or another person that out- entity will follow: legislature wanted the courts to interpret weighs the public right to disclosure.36 • If the records sought include disciplinary great bodily injury in SB 1421 consistently Besides these mandatory redaction records and relate to a peace officer’s dis- with existing case and statutory law. requirements, a public entity also has the charge of a firearm or use of force that Public entities should remember that discretion to redact other information. A results in great bodily injury, an agency what will constitute great bodily injury is public entity may redact information when could provide reasonable notice in order fact-dependent. California statutes and the public interest in not disclosing the to allow the officer to seek a reverse PRA cases have interpreted “great bodily in - information clearly outweighs the public action. If the officer fails to block the dis- jury” to mean “a significant or substantial interest in disclosing the information.37 closure after notice is provided, the public injury.”40 “Great bodily injury” is more When producing records consistent entity may proceed with disclosure pur- than a minor or trivial injury but does with SB 1421, the public entity will need suant to SB 1421. not require the victim to suffer a long- to comply with the production deadlines • If the records sought relate to a claim of term or permanent injury.41 Ad ditionally, set out in the PRA. In addition to the sexual assault or dishonesty by a peace a series of minor injuries when viewed in options a public entity has under the PRA officer, public entities can only disclose the aggregate can amount to great bodily to extend the production deadline for a records if a commission, hearing, or other injury. For example, bruising over multiple PRA request, SB 1421 provides additional body finds that the officer’s conduct vio- body parts, or swelling and pain can be

22 Los Angeles Lawyer February 2019 considered great bodily injury.42 Also, if proactive steps to identify the location of 81 (1989). 3 there is a medical opinion that a particular records before requests are made could EVID. CODE §1043(b)(3). 4 EVID. CODE §1045(b). injury is significant will also likely mean speed up re sponse times to requests and 5 EVID. CODE §1045(e). 43 the injury suffered is a great bodily injury. minimize the risk of litigation. 6 EVID. CODE §1045(d). Use of Force. Regarding “use of force,” 7 GOV’T. CODE §6250. Implications of SB 1421 the legislative history originally discussed 8 CBS, Inc. v. Block, 42 Cal. 3d 646, 651 (1986). Taser™ and impact weapons the use of In passing SB 1421, the California Legis- 9 San Gabriel Tribune v. Superior Ct., 143 Cal. App. 3d 762, 771-72 (1983). which would require disclosure of related lature makes some fairly substantial changes 10 CAL. CONST. art. I, §3(b). records, but these sections were elimi- to the law and seems to have responded 11 Humane Soc’y v. Superior Ct., 214 Cal. App. nated.44 Nevertheless, if the use of such to the growing pressure for more trans- 4th 1233, 1254 (2013) (stating that the statutory devices results in great bodily injury, the parency in law enforcement: “The public exemptions to the disclosure of records are construed records will likely still need to be disclosed. has a strong, compelling interest in law narrowly). 12 The driving factor here is whether an offi- enforcement transparency because it is GOV’T. CODE §6254(c). 13 Id. cer’s use of force results in great bodily essential to having a just and democratic 14 GOV’T. CODE §6254(b). 47 injury and not necessarily whether a par- society.” However, even with this shift 15 GOV’T. CODE §6254(i). ticular action was “force.” in the law governing law enforcement 16 GOV’T. CODE §6254.4. “Relates,” “Relating to,” and “Related records, Pitchess motions will not disappear 17 GOV’T. CODE §6254(j). 18 to.” An example of use of these terms is with the passage of SB 1421. Incidents trig- GOV’T. CODE §6254.3. 19 GOV’T. CODE §6255. when the statute provides “[a] record relat- gering Pitchess motions are often broader 20 ACLU Found. v. Superior Ct., 3 Cal. 5th 1032, ing to the report, investigation, or findings than those that must be disclosed under SB 1043 (2017) (holding that the catch-all provision of any of the follow: (i) an incident involv- 1421. If the records sought with a PRA contemplates a case-by-case balancing process, with ing the discharge of a firearm….”45 request do not relate to one of the three the burden of proof on the proponent of nondisclosure “Relates,” “relating to,” and “related to” trigger events enumerated under SB 1421, to demonstrate a clear overbalance on the side of confidentiality); see also Long Beach Police Officers are very broad terms. In civil discovery, the records are not disclosable under SB Ass’n v. City of Long Beach, 172 Cal. 4th 59, 67 when attorneys seek the production of 1421 but information may still be ordered (2014); Michaelis, Montanari & Johnson v. Superior documents related to a particular event disclosed through a Pitchess motion. Ct., 38 Cal. 4th 1065, 1071 (2006). the term is defined as a record that “men- More importantly, by making this new 21 Marken v. Santa Monica-Malibu Unified Sch. tions, discusses, reviews, criticizes, ampli- legislation part of the PRA, the legisla - Dist., 202 Cal. App. 4th 1250, 1254 (2012). 22 fies, explains, describes, etc.” a particular ture has basically proclaimed that the pub - Pasadena Police Officers Ass’n. v. City of Pasadena, 22 Cal. App. 5th 147, 152 n.3, (2018); Marken, 202 event. Use of this term, thus, is consistent lic has a constitutional right to these Cal. App. 4th at 1268 n.14. with the PRA’s purpose of disclosing gov- records—a proclamation that has conse- 23 CALIFORNIA ATTORNEY GENERAL’S OFFICE, SUMMARY ernment records. Therefore, in preparing quences. If a public agency refuses to dis- OFTHE CALIFORNIA PUBLIC RECORDS ACT 2004 3 productions, a public entity should define close records and the requester disagrees (citing CAL. CONST. art. I, §1]; New York Times v. this term broadly so that in the production with the determination, the requester can Superior Ct., 218 Cal. App. 3d 1579 (1990). 24 GOV’T. CODE §6254(n). stage when the entity is identifying records, bring an action seeking mandamus, injunc- 25 See, e.g., San Gabriel Tribune v. Superior Ct., 143 48 it over identifies records. Then, when tive relief, or declaratory relief. In the Cal. App. 3d 775 (1983); see also Kapellas v. Kofman, reviewing the documents with counsel Los Angeles Superior Court, these matters 1 Cal. 3d 20, 36 (1969). prior to producing the records, determi- are handled by the Writs and Receiver 26 PENAL CODE §832.7(a). 27 nations about what is sufficiently related courts.49 In these kinds of civil actions, PENAL CODE §832.7(b) (as amended 2018). 28 PENAL CODE §832.7(b)(1)(B)(i) (as amended 2018). to be produced can be made. the requester is asking a judge to enforce 29 PENAL CODE §832.7(b)(1)(B)(ii) (as amended 2018). Sustained Finding. This term is defined the right to receive a copy of the public 30 Id. in SB 1421 but that definition differs from record being sought—or seeking an order 31 PENAL CODE §8327(b)(1)(B)(iii) (as amended that found in Penal Code Section 832.7. enjoining the agency from denying the 2018). The term is relevant for documents related requester access to the record. If a judge 32 Id. 33 PENAL CODE §832.7(b)(1)(C) (as amended 2018). to claims of sexual assault or dishonesty finds the public agency’s decision to refuse 34 PENAL CODE §832.7(b)(5)(A) (as amended 2018). by the officer. In order for documents disclosure is not justified and determines 35 PENAL CODE §832.7(b)(5)(B-C) (as amended 2018). related to these events to be disclosable, the requester is the prevailing party, the 36 PENAL CODE §832.7(b)(5)(D) (as amended 2018). there must be a sustained finding that the requester will be awarded court costs and 37 PENAL CODE §832.7(b)(6) (as amended 2018). officer engaged in this conduct. In this attorneys’ fees.50 38 PENAL CODE §832.7(b)(7) (as amended 2018). 39 context, a “sustained finding” means “a The change in this law may have the S. Rules Comm., Office of S. Floor Analyses, SB 1421 as amended August 23, 2018, at 2. final determination by an investigating potential to lead to a significant increase 40 PENAL CODE §12022.7(f), People v. Cross, 45 Cal. agency, commission, board, hearing officer, in PRA requests for law enforcement 4th 58, 63-64 (2008). or arbitrator…that the action of the peace records. Therefore, it is incumbent upon 41 People v. Escobar, 3 Cal. 4th 740, 746 (1992); officer or custodial officer were found to public entities to establish procedures and Cross, 45 Cal. 4th at 64. 42 violate law or department policy.”46 standards to minimize a public agency’s People v. Jaramillo, 98 Cal. App. 3d 830, 836 (1979). Identify Responsive Documents. On liability. When producing peace officer 43 People v. Sanchez, 131 Cal. App. 3d 718, 734 January 1, public entities were able to personnel records it is necessary to think (1982). begin receiving requests for officer records. in broad terms because the PRA favors 44 S. Rules Comm., Office of S. Floor Analyses, SB The universe of records that are potentially the release of public records and courts 1421 as amended August 23, 2018, at 2. 45 disclosable must be related to one of three will likely err on the side of disclosure PENAL CODE §832.7(b)(1)(A). 46 PENAL CODE §832.8. events, and public entities could start iden- when interpreting SB 1421. n 47 SB 1421 §4. tifying where and how those types of 48 GOV’T. CODE §6258. records are retained within their current 1 Pitchess v. Superior Ct., 11 Cal. 3d 531 (1974). 49 CAL. R. CT. 2.7(b)(1)(G) document retention practices. Taking 2 City of Santa Cruz v. Municipal Ct., 49 Cal. 3d 74, 50 GOV’T. CODE §6258(d).

Los Angeles Lawyer February 2019 23 by Cynthia Flynn and Anthony J. Mulkern

The general focus of executive coaching for lawyers is not simply to solve problems but also to seek out, create, and make the most of opportunities

the past two decades, various efficiency, and outstanding leadership is changes in the practice of law executive coaching. Before discussing how have created strains on law firms executive coaching can be useful, it is essen- and their managing partners that tial to first discuss the alleged crisis. Ac - might be viewed as a virtual crisis in the cording to a Johns Hopkins University profession. It is not clear, however, that study, lawyers are 3.6 times as likely to be law firms as a rule have successfully imple- depressed as other professionals.1 This is mented the kind of sound management in line with a 2016 American Bar Associ - systems and organizational development ation and Hazelden Betty Ford Foun - that their corporate clients have long taken dation study that found that 28 percent for granted. of licensed, employed lawyers suffer from One resource that some law firms rec- depression.2 A Psych ology Today article ognize as the key to consistent high quality, in 2011 says that lawyers have overtaken

Cynthia Flynn is the founder and managing partner of Hackler Flynn & Associates, a boutique law firm in Los Angeles and Irvine that focuses on employment defense. Anthony J. Mulkern is president of Mulkern Associates, an executive coaching and consulting services firm based in Glendale, California. KEN CORRAL

24 Los Angeles Lawyer February 2019 dentists as the profession with the highest five times the rate respectively of the general sources of the pressures and stresses of the rate of suicide.3 The same article reports population. These facts would in them- current practice of law. that seven in 10 lawyers responding to a selves complicate the challenges of man- One major force creating stress in law California Lawyer magazine poll said they aging lawyers, but both personality disor- firms over the past two decades is merger would change careers if the opportunity ders also appear to be correlated with and acquisition activity.8 This has produced arose. Those who are in the top tier of addiction and substance abuse disorders.6 some firms that now have on staff 1,000 their profession in earnings may find them- The relatively high rates of depression, or more lawyers. Staff from the merged selves in a virtual “golden cage,” as there suicide, and substance abuse in the legal entities must be integrated, with all the dif- is little or no opportunity to replace their profession are generally attributed to stress, ferences of expectations and habits that high incomes by other means. competitiveness, and increased pressure they bring with them. It is challenging for The ABA and Betty Ford Foundation for revenues and profitability.7 Although any organization to integrate staff from study also found that lawyers have a higher oth er professions may also have high or separate entities into one firm with one rate of drinking problems than individuals even higher rates of stress, the work of culture and set of values and ways of doing in other professions. The study indicates law yers includes helping organizations things. Yet many of the lawyers who now that 36.4 percent of those in the legal pro- man age risk and reduce liability; thus, one find themselves in management positions fession may be problem drinkers, compared might expect that lawyers would be among with this responsibility have no formal with about 12 percent of other highly edu- the first to say that management (in other management training and no interest in or cated professionals such as surgeons, for organizations outside the legal profession) passion for managing at all. example.4 Women make up an increasingly has a serious responsibility to look after A second factor is that the larger the higher percentage of the legal profession the emotional and physical welfare of their firm, the more likely it is that it will be today, and women in the legal profession employees and to introduce enlightened divided into various practice areas of spe- have much higher rates of problem drink- management systems to address the stresses cialization. As cases become more complex ing (39.5 percent) than women in the gen- that go with the job. In law firms, however, and the potential damages to the client eral population (19 percent), according to a culture of apparent invincibility and increase, lawyers are increasingly required the study. Problem drinking among males invulnerability, together with underlying to work in teams composed of other in the legal profession (33.7 percent) is limiting beliefs, seems to inhibit most law lawyers with different areas of specialty slightly higher than that of men in the gen- firms from taking such measures. Perhaps and sometimes with nonlawyers such as eral population (32 percent).5 The ABA it will take litigation and/or legislation to accountants, financial planners, and com- and Betty Ford Foundation study also force the issue. For those managing part- munications specialists. Effective team- reveals that, as a group, lawyers tend to ners—and those who aspire to that role— work, however, may not come easy for exhibit antisocial personality disorders and who want to do better, it is important to those who have been educated and trained narcissistic personality disorders at two to review in some detail the nature and to primarily exhibit traits of independence Case Study

For senior partners to ensure the success of their less senior colleagues, it is critical that they better understand the pressures under which the latter function. One senior partner at a firm in described how a friend who was a newly hired associate at a firm in a neighboring county called him on several occasions for advice on case assignments rather than ask clarification from her own firm’s senior staff. “Often the directions for research,” he said, “were so vague that they could go in 50 different directions. The associate had learned that to ask questions in her firm was to be judged as stupid or incompetent. Survival required finding the information elsewhere. Unfortunately, this kind of situation is not isolated.” Thus, brutal hours frequently were spent at this firm producing reports that often failed to satisfy what the senior partner wanted in the first place. Several factors were at play in this situation that are at odds with a well-functioning organization and client satisfaction:  Unclear communication as to the assignment’s requirements, its purpose in the overall case strategy, and expected results.  Fear on the part of the associate to ask for clarification or to decline the assignment.  Perception that senior partners were either inaccessible or intolerant of a need for assistance.  Fear that with every assignment her job was at stake—i.e., operating in “survival mode” rather than with enthusiasm and creativity. In short, the associate was mired in the nightmare scenario of having an assignment over which she had no choice, with no clear directions, no resources within the firm for clarification, and the prospect of being fired if she did not get it right. Even the advice of a more senior friend at another firm would at best be only an educated guess. The cascading effect of such circumstances eventually reaches the firm’s client, who is seen as demanding perfection. For an associate with a heavy case load, working seven days a week, desperately striving to grasp that for which they need more guidance, the path of least resistance is to avoid communication as much as possible with clients on difficult cases. No one wants to deliver bad news, especially if it is seen as a potentially career-ending event, and so the client is left stewing while waiting for an update that never comes until an irate call is placed to the senior partner. The subsequent scene can be ugly and may involve the termination of an otherwise high-potential associate. While the senior partner in this case study might survive in a traditional law firm, his or her style would be an even greater liability in managing a virtual law firm. There, the time allocated for communication is likely to be less and the importance of precision and clarity in each interaction is greater. There is no alternative to a change of style in which subordinates are encouraged to probe in the spirit of “there are no stupid questions.”

26 Los Angeles Lawyer February 2019 and competitiveness. These traits can cer- school graduates than at any time since more time away from work for family and tainly serve a client well when a case is the recession, the number of entry-level outside interests. being argued in court or a tough negotia- jobs at those firms is still off by nearly In light of these changes, best practices tion is underway. Exhibiting the same traits 600 positions compared with the peak hir- in law firm management from a decade ago can be counterproductive when it is nec- ing measured with the Class of 2008.”18 may no longer apply. Even attorneys who essary to hammer out a consensus with Additionally, there is now greater diver- may be well-versed in practice management one’s colleagues on the best defense or sity among the types and structures of law at a large firm may not realize that the negotiation strategy. firms. A “virtual law firm” has no brick- dynamics are different in a small firm, and Macroeconomics have multiplied the and-mortar office (or perhaps a minimal attorneys who are accustomed to managing stresses. Before the economic crash of 2008 one), and its attorneys work remotely from employees face-to-face may need to learn and subsequent recession, large law firms their homes. Although firms experimented to adapt their management style should tended to employ large incoming classes with the concept earlier, virtual law firms they choose to form a virtual law firm. of first-year associates. After 2008, cor- began to make headlines in 2009.19 At Executive coaching can assist managing porate clients faced losses and cuts them- that time, a number of virtual firms were attorneys in making these transitions. selves and were increasingly unwilling to founded by former large law firm partners, With major changes can come major pay large firm rates.9 These clients began and a common feature was that attorneys stresses, which must be confronted and demanding lower rates and alternative pay- in these “alternative” firms could set their openly discussed if appropriate adjustments ment arrangements, and, importantly, they own hours. are to be made. Yet law firms tend to oper- were no longer willing to pay the high cost In 2018 virtual law firms grew faster— ate in a culture exhibiting perfectionism of training junior associates. Some clients in terms of attorneys and revenue—than and infallibility with clients, skill at seeing even refused to pay for first- and second- traditional large firms. According to Law - the worst-case scenarios, no show of emo- year associates’ work at all. Large firms 360, “The 400 largest law firms in the tional vulnerability, and a win/lose men- that failed to adapt found themselves losing U.S. by domestic head count have grown tality. Furthermore, law school does not business to smaller regional law firms with between 1 and 2 percent a year on average teach executive management skills for lower hourly rates.10 over the past five years,” and revenue senior partners, and the adversarial nature growth among the largest 100 firms was of law does not inculcate team work. Effects of AI 4.3 percent in 2016, with the second 100 Executive Coaching Defined Another major factor in the changing mar- firms growing at only 1.2 percent that ket, particularly for litigation, is automation. year.20 By contrast, the majority of “high- To examine how executive coaching can Document review software, powered by profile” virtual law firms have grown 15 help deal with these issues, some terms artificial intelligence (AI), is becoming the to 30 percent a year, with revenue growth need to be clarified. Usually “executive” default practice. E-discovery vendors can up to 50 percent a year.21 Cloud-based refers to senior level to mid-level managers use algorithms to turn a million-page priv- technology has made it more convenient or leaders in an organization. In a law ilege review into 10,000 pages, which in and more practical for attorneys to work firm, the partners are executives. The same turn means fewer entry-level jobs for attor- remotely; virtual firms use these expanding principles also apply to the chief counsel neys who mostly reviewed documents at technological capabilities to their fullest in a company that has its own internal larger firms.11 Many courts now accept advantage.22 legal department. the results of AI and predictive coding soft- Another lasting consequence of the reces- “Coaching” is a process aimed at devel- ware for use in discovery. For example, in sion is that “boutique” law firms of the oping and enhancing the executive and In re Broiler Chicken Antitrust Litig ation,12 traditional brick-and-mortar type continue leadership skills of clients. The general the court issued a detailed order describing to gain ground with corporate clients who focus is not simply to solve problems, but how the parties were to proceed with “tech- previously worked with larger firms.23 A also to seek out, create, and make the most nology-assisted review,” including instruc- survey of 307 leaders of multinational of opportunities. This typically involves tions on which search technologies to use companies found that 48 percent of them assessment, generating alternative solutions, and protocols for validating the document attributed problems with outside law firms and carefully observing or measuring the re view.13 As one commentator noted: to their fees and costs.24 Their top priorities results of trying something new. This cus- “Gone are the days when 50 to 70 junior included costs as well as the need for spe- tomized approach to executive coaching employees would do this type of painstaking cialized skills. Accordingly, medium-sized involves three facets. but important paperwork.”14 and even small firms are getting work pre- First, it is typically conducted in private By the end of 2009, first-year associate viously performed exclusively by large meetings between the executive coach and hiring was down 4 percent and it plum- firms. the client, allowing for Socratic-style dia- meted another 27 percent by the end of Finally, attorney priorities are shifting, logue. The private nature of executive 2010.15 According to National Association particularly those with five to seven years’ coaching allows law firm clients to discuss of Law Placement (NALP) data, 2010 experience who have large law firm back- in detail issues that may be inappropriate marked the first year since 1997 in which grounds and who may be exploring their to air in a group. The executive coach’s new jobs in small firms outnumbered those next career move. Post-recession, there are role in the dialogue is to become the cata- in firms of more than 100 lawyers.16 As fewer attorneys in this sought-after cate- lyst for the client’s own development and of 2013, large law firms also employed gory, and, accordingly, they can afford to choice of plans for action. No coach can fewer experienced attorneys than they did be more selective. As a group, associates know a firm’s members and culture as well before 2009.17 Although large-firm hiring (at this level and others) tend to be more as a long-term partner. The successful coach has rebounded to a degree, it has not risk-averse and to place a high value on is, however, an expert in eliciting the active returned to its pre-recession levels. Hiring stability and predictability in their career engagement of the client in mastering his data from 2017 shows that while firms of paths.25 They are, therefore, more likely or her own situation. This is accomplished more than 500 lawyers “hired more law to expect “life balance”—shorthand for through insightful questioning and probing,

Los Angeles Lawyer February 2019 27 clear-headed assessment, clarifying the source of conflict. It is not unusual at the they are accurate or not. Therefore skillful client’s values and objectives, and logically outset of an executive coaching engagement leadership is sometimes informally defined drawing out the implications of the alter- to find that a difficult situation was made as the “management of perceptions.” natives that are generated. In these ways, worse by previous misguided attempts to Executive coaching provides the means the client arrives at solutions and commit- resolve a problem. to break this vicious cycle of unclear ex- ments that have been formed with his or pectations, fear, and a sense of isolation, Alternative to Depression her own needs and priorities. disappointment, and recrimination. One The second facet of effective executive Earlier, some alarming statistics were cited business law attorney explained that when coaching involves mentoring or giving regarding the presence in the legal profes- he learned to explain in detail what he advice. For the coach’s advice to have cred- sion of depression, which can take many wanted and why, staff problems with ibility, he or she must have a record of forms, from mild and infrequent to severe became minimal. accomplishment in what it is that executives and chronic, with many causes. While Senior partners and managers of a firm do that is different from what subject area executive coaching is not the same as psy- often know that something is badly amiss specialists do, namely organizing, inspiring, chotherapy, which may be indicated for but have difficulty separating reality from leading, and developing people. The situ- severe or clinical depression, it can have rumor, hearsay, or mistaken impressions. ation is analogous to hiring a golf coach great value in addressing or preventing The first step in successful executive coach- to improve one’s average score. One would one commonly accepted cause of depres- ing is obtaining good data, and sometimes expect from such a coach more than a sion: repressed anger. Anger at an external the perceptions are the data. How can series of questions, but also guidance on cause that does not find adequate external information on these perceptions be ob - how to actually hit the ball, as well as expression or resolution is deflected in - tained if staff members feel it is too risky feedback on one’s stroke. As in sports, wardly, producing depression. to openly express their concerns? having a coach is not seen as a sign of When conflict, confusion, or fear, are Anonymous Feedback weakness but rather as a commitment to not resolved in open discussion, they can excellence; all champions have one, and easily turn into depression, with all its One singularly effective way is through an only amateurs do not. accompanying symptoms. The latter may organizational assessment based on candid, A third facet of executive coaching is include difficulty concentrating, fatigue anonymous feedback obtained in struc- that of counselor. Leadership and team due to difficulty sleeping, loss of energy tured interviews conducted by the executive relationships can be among the most emo- due to poor appetite, low self-esteem, coach. Feedback is obtained on how the tionally distressing issues clients face in absenteeism, decreased productivity, turn - firm is faring on key effectiveness areas, their work lives. Open expression and over and general loss of interest in work. such as conflict resolution, the way mis- exploration of these issues is essential to All of these symptoms can jeopardize a takes are treated, availability of needed resolving them, and this requires the estab- career and undermine a firm’s effectiveness resources, morale, supportiveness among lishment of a high level of trust and rapport and reputation, especially when the lawyer team members, knowledge and skill uti- with the executive coach. This is established in question self-medicates with alcohol lization, among other areas. Once the through empathetic listening, genuineness, and/or illegal drugs, thus producing a pledge of anonymity has been made, the and a profound respect for the client’s downward spiral. interviews in themselves can be a significant competence. Knowing how to challenge Most law firms lack the processes or morale booster. Many staff say they feel in a supportive way and to encourage emo- cultural acceptance for the airing of dis- the interviews are the first time in their tional as well as intellectual expression are satisfaction, especially from associates. work careers that they have ever been fully also key. Executive coaching can help senior partners heard and listened to in depth. to clarify the sources of the dissatisfaction After the needed data are obtained, a Developing Leadership Skills and facilitate the expression and resolution profile of the firm’s situation emerges and Enhancing and developing leadership skills of the issue. Providing this coaching sup- is described in a report to senior partners. can mean different things for different port is far less expensive to a firm than This, together with accompanying recom- clients. Some partners need to develop having to replace an associate in whom mendations, becomes the blueprint for a more flexibility in communication styles, they have invested many years at great coaching plan to produce measurable with the ability to judge when to be blunt cost and whom they were hoping to de - results, according to the firm’s own prior- and candid and when to be more sensitive velop to partner. ities and agreed upon objectives. or subtle. Others need to learn to choose There is universal recognition among Numerous benefits flow from this more carefully when and with whom to organizational development experts in the process. With more clarity and focus on express strong emotions and how to com- corporate world that the problem is not the “what and why” of assignments, for municate less destructively. For some, polit- conflict itself, but the lack of skill in con- example, “24/7” work weeks may be fewer. ical pressures internal to the firm can seem structively confronting it and doing the Life balance, a subject once taboo at law overwhelming, and a coach can help the hard work of finding solutions that all the firms, has become increasingly important client develop perspective and effective firm’s members will commit to and imple- as young families more often than not are strategies for exercising leverage. Lack of ment. These same practices are no less today two-career families. Could the higher accountability may have created conflicts needed in today’s law firms, and coaching percentage of problem drinking among and disappointments, and action may be can help to instill them. women lawyers versus the general popu- needed to “get the wrong people off the It is difficult to say how many senior lation of women cited earlier indicate that bus.” Some senior partners need develop- partners are likely to be fully aware of most law firms are failing to respond ade- ment as team leaders, and others need to these dynamics. In fact, they may in some quately to the fact that women make up recognize that a work group is not the cases exist principally in the minds or per- an increasing percentage of the profession? same as a work team and that trying to ceptions of the associates. Perceptions, One attorney who benefited from ex - manage it as such is a waste of time and however, help determine outcomes, whether tensive executive coaching observed that

28 Los Angeles Lawyer February 2019 client satisfaction increased once associates learned to avoid surprises, i.e., even when the news was not the best, if candid, in- depth updates were provided on a regular basis, clients’ confidence could be main- tained. The other “bottom line” he noted was an increase in associates’ loyalty and a reduction in turnover. Executive Coaching in Smaller Firms In boutique law firms, the senior partners are essentially entrepreneurs, and like most entrepreneurs, their formal leadership development is usually minimal. Take the process for hiring junior associates, for example. Most entrepreneurs spend most of the so-called interview describing the firm and what it needs from new hires, with a minimum of questioning and probing for information. Why? They have never learned to interview in a nonadversarial manner, and they do not want to offend. It is analogous to a trial lawyer representing a client in court without having been trained in cross-examination. As a result, they hire associates who tell them what they wanted to hear and are surprised that the fit is so often not right. An executive coach can help the senior partners design a screening and interview process that will greatly enhance the chances of success and at a minimum reduce the expense and wasted time of bad hires. In the absence of this ground- work, positions are likely to remain open too long, hiring will be based upon insuf- ficient information, and turnover will be high with a subsequent waste of training time and a shortage of capacity to grow. Marketing a firm’s services is increasingly expected of lawyers, yet it is a function that may not come naturally to most. The communications skills that lead to more effective internal operations also tend to create the poise, enthusiasm, and persuasiveness essential for gaining interest, trust, and confidence with potential clients. Moreover, time freed from internal conflict and unguided research is time available for making the contacts necessary for business development. Regardless of the changes to come, the practice of law will always be de - manding, hard, exhausting work. It at - tracts highly intelligent, energetic people who relish the challenge of a good contest and the satisfaction of a well-designed line of argument that wins the day. But what is true for other corporations is also true for law firms. If two organizations are in a contest for clients and one of them is characterized by outstanding leadership, loyalty, mutual supportive ness, and unified focus while the other is

Los Angeles Lawyer February 2019 29 fraught with internal conflict, it is not difficult to imagine which one is most likely to come out on top. Success in a changing market requires a willingness to make the necessary changes. n

1 W.W. Anthony et al., Occupations and the prevalence of major depressive disorder, 32 J. OCCUPATIONAL MED. 1079, 1079 (1990). 2 Press Release, ABA, Hazelden Betty Ford Foundation Release First National Study on Attorney Substance Use, Mental Health Concerns (Feb. 3, 2016), available at https://www.hazeldenbettyford.org/about-us/news -media/press-release/2016-aba-hazelden-release-first -study-attorney-substance-use. See also Dan, Why So Many Lawyers Suffer from So Much Depression, Lawyers with Depression (Mar.30, 2017), available at http://www.lawyerswithdepression.com/articles /many-lawyers-suffer-much-depression. Confidence At The Courthouse. 3 Martin E.P. Seligman, Why are so many lawyers so Business litigation is increasingly complex. That is why we believe valuation unhappy? PSYCHOLOGY TODAY, May 20, 2011, available issues must be addressed with the same meticulous care at https://www.psychologytoday.com/us/blog/therapy as legal issues. Analysis must be clear. Opinions must be -matters/201105/the-depressed-lawyer. 4 Hazelden Betty Ford Foundation.org, Substance defensible. Expert testimony must be thorough and Abuse Disorders Among Legal Professionals, available articulate. HML has extensive trial experience and can at https://www.hazeldenbettyford.org/education/bcr provide legal counsel with a powerful resource for expert /addiction-research/substance-abuse-legal-profession testimony and litigation support. als-ru-317. 5 Id. 6 Id. For More Information Call 213-617-7775 7 Id. Or visit us on the web at www.hmlinc.com 8 See, e.g., Michael T. Matteson & John M. Ivanevich, Merger and Acquisition Stress: Fear and Uncertainty • • • BUSINESS VALUATION LOSS OF GOODWILL ECONOMIC DAMAGES LOST PROFITS at Mid-Career, 8 PREVENTION IN HUMAN SERVS. 139 (1990). 9 Michelle Fivel & Robert Graff, Where Have All the BigLaw Associates Gone? Major, Lindsey & Africa (Mar. 23, 2017), available at https://www.mlaglobal .com/publications/articles/where-have-all-the-big-law -associates-gone [hereinafter Fivel & Graff]. 10 Darcy Reddan, BigLaw’s High Costs Drive Cos. Toward Boutique Law Firms, Law360, Apr. 4, 2018, https://www.law360.com/articles/1029437/biglaw-s -high-costs-drive-cos-toward-boutique-law-firms [hereinafter Reddan]. 11 See, e.g., “How Automation Is Changing the Legal Industry,” Beyond Billables (Jan. 25, 2018), https://beyondbillables.com/automation-changing-legal- industry [hereinafter “Automation”]. 12 In re Broiler Chicken Antitrust Litigation, No. 1:16- cv-08637, 2018 WL 1146371 (N.D. Ill. Jan. 3, 2018). 13 Id. at 4. 14 See “Automation,” supra note 11. 15 Id. 16 Employment Rate Falls Again, but Law Firm Jobs Are Up, NALP Bulletin (Aug. 2013), available at https:// www.nalp.org/0813research. 17 See Fivel and Graff, supra note 9. 18 Judith N. Collins, Overall Employment Rate Up Modestly, Employment Rate in Legal Jobs Up More, NALP 2018, available at https://www.nalp.org /uploads/SelectedFindingsClassof2017.pdf. 19 See Robert W. Denney, Trends Report: The Rise of Virtual Law Firms, LAW PRACTICE, Nov./Dec. 2009, available at https://www.americanbar.org/publications /law_practice_home/law_practice_archive/lpm_maga- zine_articles_v35_is7_pg12. 20 Aebra Coe, Why Virtual Law Firm Growth Is Out- pacing BigLaw, Law360, Feb. 9, 2018, https://www .law360.com/articles/1008959. 21 Id. 22 Id. 23 Reddan, supra note 10. 24 Id. 25 See Fivel and Graff, supra note 9.

30 Los Angeles Lawyer February 2019

PROFILE by Gillian H. Clow

Notorious RBG: The Life and Times of Ruth Bader Ginsburg

The first museum retrospective of the beloved Supreme Court Justice Ruth Bader Ginsburg delivers a cross-generational crowd-pleaser

A VISIT TO A MUSEUM Los Angeles. Coinciding with the 25th an - niversary of Justice Ginsburg’s appointment in Los Angeles the whole family will enjoy to the Court in 1993, the exhibit is based on may be a hard sell—the Getty’s renaissance the New York Times bestselling book of the paintings, for example, may not click with same title, and was created in partnership the same family members whose definition with the book’s authors, attorney Shana of museum includes the Insta gram-friendly Knizhnik, the creator of the viral Tumblr candy or ice cream pop-up varietals. The social media account that anointed Justice Skirball Cultural Center’s ex hibit on Ruth Ginsburg with the “notorious” mon iker, and Bader Ginsburg, however, combines infor- journalist Irin Carmon. mative facts about the be loved associate The Tumblr’s origins are worthy of their justice of the U.S. Supreme Court, with invit- own exhibit. It began after the Supreme ing pop culture elements and tactile ex - Court announced its decision in Shelby periences for the museum goer, making County v. Holder,1 in which the Court struck the exhibit a cross-generational crowd- down two provisions of the Voting Rights pleaser. A trip to the Skirball to learn about Act of 1965, one of which required certain “RBG” just might leave one feeling inspired, states and local governments to obtain fed- informed, and stocked with Instagram- eral preclearance before implementing worthy content. changes to their voting laws or practices “Notorious RBG: The Life and Times of and the other containing the coverage for- Ruth Bader Ginsburg” is on view now through mula that determined which jurisdictions March 10 at the Skirball Cultural Center in are subjected to the preclearance based on

Gillian H. Clow is an associate in Alston & Bird LLP’s litigation and trial practice group in the Los Angeles office, and serves on the LACBA Barristers/Young Attorneys Section Executive Committee.

32 Los Angeles Lawyer February 2019

Ruth Bader Ginsburg at Columbia Law School their histories of voter discrimination. the subject of both a recent documentary under the law. In Weinberger v. Wiesenfeld,2 In its 5-4 decision, the Court found that and a dramatized feature film. she represented a male plaintiff who was the coverage decision was based on 40- Woven throughout the exhibit is a clear denied special benefits under the Social year-old data, rendering it no longer re - emphasis on how fiercely Justice Ginsburg Security Act’s gender-based distinction of sponsive to current needs and thus a burden fought and continues to fight for equality. 42 U.S.C. Section 402(g) which permitted on federalism. In her dissenting opinion, From her early days as an attorney at the widows, but not widowers, to collect special Justice Ginsburg famously wrote that elim- American Civil Liberties Union, she believed benefits while caring for minor children. inating the preclearance requirement when men and women deserved equal treatment The Court found in a unanimous decision it has and continues to work to stop discrimination “is like throwing away your umbrella in a rain storm because you are not getting wet.” In the wake of this decision, then law- student Knizhnik said someone on her Facebook feed referred to the justice as “The Notorious RBG,” and from there the Tumblr account was born, catapulting Justice Ginsburg from an esteemed legal mind to “RBG,” pop culture icon. The “Not - o rious RBG” is not only synonymous with civil rights and the fight for equality for all but also is a Saturday Night Live character, a meme, a source of fitness inspiration, and

Justice Ruth Bader Ginsburg dissents in Epic Systems v. Lewis, May 21, 2018 IMAGES COURTESY OF THE SKIRBALL CULTURAL CENTER

Los Angeles Lawyer February 2019 33 that this distinction violated equal protec- the senses. Each section is artfully labeled ing. Also on view is a 1996 portrait of the tion rights. The Skirball exhibit illustrates with the name of or lyrics from a Notorious associate justice by American artist Everett Justice Ginsburg’s long-held belief that B.I.G. song (“Stereotypes of a Lady Misunder - Raymond Kinstler, on loan from the Smith - gender equality improves the lives of every- stood,” “I’ve Got a Story to Tell,” “Hypno tize”) sonian’s National Portrait Gallery. one—not just women—and her home life, printed in graffiti by feminist street artist Museum visitors are able to watch home as well as her professional life, reflects this Maria “TooFly” Castillo. videos of RBG with her husband, Marty, belief. For example, the exhibit shows that The exhibit includes a sample robe and browse through yearbooks from her Brook - her husband, tax attorney and tax law collar, a “jabot” as they are officially called, lyn high school days to her time at Cornell, expert Martin “Marty” D. Ginsburg, did the from Justice Ginsburg’s Supreme Court Columbia, and Harvard, and can visit “lis- cooking in their marriage until his death ward robe. We learn that her neckwear has tening stations” to hear her deliver oral in 2010 and supported Justice Ginsburg as meaning: one signals that she will announce arguments, majority opinions, and dissents a true partner. the Court’s majority opinion, another signals in landmark Supreme Court cases such as The overall exhibit is a unique treat for her dissent, still others have personal mean- U.S. v. Virginia,3 Bush. v. Gore,4 Ledbetter v. Goodyear Tire & Rubber Company5 and Shelby County v. Holder.6 Brightly colored exhibit areas tip off visitors that they may touch the items in those areas, including WELCOME a yellow kitchen reminiscent of the one Justice Gins burg shared with her husband, TO OUR NEWEST MEMBERS stocked with his recipes and cooking uten- sils. Visitors can also don a replica Supreme Court robe and jabot and sit at a mock SCOTUS bench, sure to delight the millen- nial museum-goer. While the exhibit does a phenomenal job of informing visitors about Justice Jackie Abellada Henley Jean Hansen Drew Garrett Parkes Ginsburg’s fascinating and inspiring life, the references to the Tumblr account and RBG’s Eric R. Adler Candice J. Hyon Suni Serena Ramirez status as a pop culture icon could be empha- Sarah Aleem Paul R. Johnson Brian Alan Rawers sized more. The exhibit includes just one Scott Antoine Jade F. Jurdi Jeremy E. Shulman small section with a few commissioned works by modern artists. With “RBG” having a virtual Jason John Barbato Anne C. Kiley Susan Swim life quite disparate from the life of the real Cory Burleson Joanne Haewon Kim Ron Tavakoli Justice Ginsburg, true RBG die-hards might have wished to see an SNLclip or two, scenes Scott Ethan Calvert Scott Matthew Rebekah Faith Thomas Klausner from her workouts with her personal trainer, Jake Anthony Camara Natasha D. Travis or any one of the numerous RBG memes Danica-Joyce Francis Chan Tapic Lam Gabriela Maria that have come to stand for the fight for Traxler-Romin civil liberties. John Dalton Shawn Ledingham A visit to the Skirball to learn more Helena Georgia Christopher Fuby Kara Koerner Marc Tseregounis about the life of this dynamic person is a worthwhile one and likely to be popular Diana Mae Fukushima Martin Scot McMahan Sara Urakawa with people of all ages and interests. Reina D. Galindo Eric W. Meyer Amanda Mary Everyone from hip-hop heads to attorneys Velasquez Sean O'Brien Garcia Deborah Hyman P. to elementary school-aged children are Mogil Melissa Lydiette likely to be im pressed by and draw inspi- Harmony Roselina Gbe Viramontes ration from RBG. Mariela Elizabeth Jeffrey J. Gordon Murillo Galen Maurice Williams 1 Shelby County v. Holder, 570 U.S. 529 (2013). David Gouzoules Natalie S. Pang Bryan Wittlin 2 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975). 3 United States v. Virginia, 518 U.S. 515 (1996). Christopher M. Habashy Gus Nick Paras Yanyan Zhou 4 Bush v. Gore, 531 U.S. 98 (2000). 5 Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007). 6 Shelby County, 570 U.S. 529.

34 Los Angeles Lawyer February 2019 closing argument BY JEFFREY HURON

Statutory Constraints on Partnership Agreements

IT IS COMMON KNOWLEDGE that business partners have fiduciary The Kelton Court’s refusal to enforce a noncompete agreement duties to each other and the partnership, which fundamentally even between partners is consistent with the U.S. Supreme Court’s include a duty not to compete with the partnership.1 Similarly, instruction against judicially created common law exceptions managers and members in a member-managed limited liability that undermine Section 16600’s broad applicability. “California company owe a fiduciary duty not to compete with the company.2 courts have repeatedly held that Section 16600 should be inter- Disputes between partners and members typically involve claims preted as broadly as its language reads.”13 Accordingly, Kelton that a partner breached his fiduciary duty by wrongfully competing is widely cited for its holding that covenants not to compete with the company. The duty not to compete in the partnership between partners are void.14 context is so well established and ingrained that California’s Partnership agreements (and similarly operating agreements)15 strong public policy in favor of free competition is counter- often contain language limiting the duties or obligations of partners intuitive and thus often overlooked in partnership litigation.3 with regard to the right to compete or entitling the partners to This is a mistake. compete with each other and the partnership consistent with California Business and Professions Code Section 16600 Section 16600’s prohibition against restraint of trade. To circumvent “embodies the original, strict common law antipathy towards such language, however, complaining partners and their attorneys restraints of trade,” and establishes a “prohibition against resort to alleging broad partnership terms and even oral or restraints on trade as follows: ‘Every contract by which anyone umbrella (parent) type partnership agreements that purport to is restrained from engaging in a lawful profession, trade or supersede free-to-compete language. For example, they may allege business of any kind is to that extent void.’”4 If “a contract the partners agreed to do all business together as in Kelton, or creates an illegal restraint on trade, there is nothing that the that one partner cannot pursue an investment without the consent parties can do that will in any way add to its validity,” and “it of the other. However, as Kelton makes clear, partnership agree- cannot be ratified.”5 Section 16600 permits noncompete agreements that create an illegal restraint of trade are invalid and unen- ments only “in two narrow situations: when a person sells the forceable pursuant to section 16600. n goodwill of a business, and when a partner agrees not to compete in anticipation of dissolution of a partnership.”6 1 A partner’s duty of loyalty includes to “refrain from competing with the partnership A partner’s duty not to compete therefore can conflict with in the conduct of partnership business before the dissolution of the partnership.” California’s settled policy in favor of open competition, and, CORP. CODE §16404(b)(3). 2 when it does, Section 16600 will invalidate any restriction on a CORP. CODE §17704.09. 3 Hill Med. Corp. v. Wycoff, 86 Cal. App. 4th 897 (2001). partner’s right to compete. Regarding Section 16600’s application 4 Edwards v. Arthur Anderson LLP, 44 Cal. 4th 937, 947-48 (2008). to ongoing partnerships, Kelton v. Stravinksi is the law.7 In 5 Kelton v. Stravinksi, 138 Cal. App. 4th 941, 946-47 (2006). Kelton, the court found that a noncompete letter entered into in 6 Kolani v. Gluska, 64 Cal. App. 4th 402, 407 (1998) (citing BUS. & PROF. CODE connection with a partnership constituted an illegal restraint on §§1601, 1602). 7 trade, and was, therefore, void.8 There was nothing about the Kelton, 138 Cal. App. 4th 941. 8 Id. at 950. partnership relationship that warranted an exemption from 9 Id. at 944, 947. Section 16600. The court expressly held that “[i]n the partnership 10 Id. At 946. context, an ongoing business relationship does not validate the 11 Id. at 944, 948. See Corp. Code §16103(b)(3)(A). covenant.”9 Therefore, even between partners, “covenants not 12 Id. at 948. 13 to compete in contracts other than for either the sale of goodwill Scott v. Snelling & Snelling, Inc., 732 F. Supp. 1034, 1042 (N.D. Cal. 1990). 14 See, e.g., HOLTZMAN, ET AL., CALIFORNIA ANTITRUST AND UNFAIR COMPETITION or dissolution of a partnership are void.”10 LAW §12.06 (Matthew Bender, 2015) (citing Kelton (138 Cal. App. 4th at 947), The plaintiff partner in Kelton did argue the noncompete stating that a noncompete provision made “in anticipation of a partnership” rather letter was enforceable because it is consistent with a partner’s than during the partnership’s dissolution constitutes an illegal restraint of trade); duty under Corporations Code Section 16404 not to compete. 17A C.J.S. Contracts §327 (2016) (citing Kelton that “a covenant not to compete The court rejected this argument because the partners had incon- as between two partners will be unenforceable as a matter of law where it is not executed as part of the sale of the good will of a business or the dissolution of the sistently agreed to limit their fiduciary duties in other agreements partnership.”). that explicitly allowed them to engage in competitive real estate 15 Operating agreements may reasonably reduce the duties of care owed by a 11 activities. The rights to compete were consistent with Section manager and a member in a member-managed limited liability companies. CORP. 16600’s prohibition of restraint on trade, and there was no CODE §17701.10(14). basis for the plaintiffís claim that his partner’s pursuit of a competing venture violated Corporations Code Section 16404 because Jeffrey Huron is the managing member of Dykema Gossett’s Los Angeles the parties had expressly agreed in other agreements to permit office. He specializes in business and real estate litigation often involving competition.12 partnership disputes.

36 Los Angeles Lawyer February 2019