THE MAGAZINE OF THE COUNTY BAR ASSOCIATION

MARCH 2018 / $5

PLUS Civil Gideon’s Progress RURAL page 12 LEGAL New Voir Dire SERVICES Standards page 26 page 17 On Direct: Gloria Allred page 8

Accommodating EARN MCLE CREDIT Attorneys

Los Angeles Lawyer Kevin Rivera discusses state and federal laws requiring law firms and other legal employers in California to provide reasonable accommodation to attorneys with disabilities page 20

FEATURES

20 Accommodating Attorneys BY KEVIN RIVERA Providing reasonable accommodation to attorneys with disabilities lifts barriers to employment faced by disabled attorneys and serves the larger goal of enabling legal employers to diversify their workforce Plus: Earn MCLE credit. MCLE Test No. 276 appears on page 23.

26 Rural Justice BY LISA R. PRUITT AND REBECCA H. WILLIAMS According to a recent report published by the California Commission on Access to Justice, attorneys in urban areas like Los Angeles are well situated to alleviate rural access-to-justice deficits throughout Southern California

Los Angeles Lawyer DEPARTME NTS the magazine of the Los Angeles County 8 On Direct 17 Practice Tips Bar Association Gloria Allred Recent amendments clarify voir dire March 2018 INTERVIEW BY DEBORAH KELLY conduct in civil matters BY ARASH HOMAMPOUR AND SCOTT BOYER Volume 41, No. 1 10 Barristers Tips Making Contact: The Benefits of 34 By the Book COVER PHOTO: TOM KELLER Building a Strong Network The Judge: 26 Machiavellian Lessons BY YUJIN CHUN REVIEWED BY TYNA THALL ORREN

12 Practice Tips 36 Closing Argument The Shriver Act advances the cause Warrantless border searches pose risk of Civil Gideon to attorney confidentiality duty BY STEVE S. ZAND BY TOBY ROTHSCHILD LOS ANGELES LAWYER (ISSN 0162-2900) is published monthly, except for a combined issue in July/August, by the Los Angeles County Bar Association, 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Period - icals postage paid at Los Angeles, CA and additional mailing offices. Annual subscription price of $14 included in the Association membership dues. Nonmember subscriptions: $38 annually; single copy price: $5 plus handling. Address changes must be submitted six weeks in advance of next issue date. POSTMASTER: Address Service Requested. Send address changes to Los Angeles Lawyer, P. O. Box 55020, Los Angeles CA 90055. 03.18 VISIT US ON THE INTERNET AT WWW.LACBA.ORG/LALAWYER E-MAIL CAN BE SENT TO [email protected]

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Los Angeles Lawyer March 2018 5 n the South of the 1930s, when To Kill a Mockingbird was set, Atticus Finch probably would have lost some Ibusiness over defending Tom Robinson, a black man accused of raping a white woman, Mayella Ewell. The result would be the same today, but for a different reason. Then,

Finch would have lost clients over issues of race. Now, it would be issues of gender. Questions about Finch and feminism have been around for decades. An early critic of the mostly revered character was Steven Lubet, who wrote in the Michigan Law Review in 1999 that Finch structured his cross-examination of Ewell “to exploit a virtual catalogue of misconceptions and fallacies about rape, each one calculated to heighten mistrust of the female complainant.” Concurring in a 2009 article for , Malcolm Gladwell wrote that, while “Finch wants his white, male jurors to do the right thing…he dare not challenge the foundations of their privilege,” and so “[h]e encourages them to swap one of their prejudices for another.” (Ironically, Harper Lee’s Go Set a Watchman, written before Mockingbird but not released until 2015, portrayed an elderly Finch as more racist than even Gladwell suggested.) Such criticisms have only gained steam in recent years, as satirized by Ashe Schow in the 2014 Washington Examiner piece titled “Atticus Finch: American literature’s most celebrated rape apologist.” According to Schow, “[I]f ‘To Kill a Mockingbird’ were taught in women’s studies classes today, Finch would have to be labeled the villain of the book for not accepting at face value an accuser’s tale of rape.” In a critical response to Schow for bustle.com, Kristen Scatton nonetheless posited that readers now had to ask, “In light of changing attitudes about sexual assault and violence against women, how do we read To Kill a Mockingbird’s trial scene,” and “how does the character of Atticus Finch hold up under this kind of scrutiny?” Notably, these articles were written before the cultural sea change that fol- lowed the recent revelations about and others. In the “post- Weinstein” era, Atticus Finch might not “hold up” as well, except perhaps to us lawyers. Scatton and Gladwell are not lawyers, of course, and they miss a point obvious to those who are. When Finch took on Robinson’s defense, he assumed an ethical duty to vigorously defend his client, whatever else he believed. That an attorney may ethically represent a client who is potentially guilty—even immoral—is axiomatic to most attorneys but seems counterintuitive to many others. The collateral damage to two of Weinstein’s former attorneys illustrates the point. As the allegations against Weinstein exploded, promptly dumped him as a client but apparently still felt compelled to go on an apology tour throughout the media, the success of which remains unclear. Similarly, Boies Schiller Flexner, whose chairman David Boies represented Al Gore in Bush v. Gore and argued for marriage equality before the Supreme Court, has been pilloried in the media and reportedly lost a number of clients over representing Weinstein. I imagine lawyers have long suffered collateral damage from representing unpopular clients, so this is not quite a “new” normal. But, these cases are a useful reminder that others don’t necessarily assume the distinction between lawyer and client that we lawyers take for granted.

John Keith is the 2017-18 chair of the Los Angeles Lawyer Editorial Board. He practices business litigation with the law firm of Fenigstein & Kaufman in Century City.

6 Los Angeles Lawyer March 2018 on direct INTERVIEW BY DEBORAH KELLY

Gloria Allred Founding Partner Allred, Maroko & Goldberg

with family or friends. Gloria.

It’s been said you haven’t taken a vacation In 1981, California State Senator John G. since the 1970s. True? It’s been so long Schmitz called you a “slick butch lawyer- that no one can remember. ess” after you presented him with a black leather chastity belt. You sued him, got What drives you? I do have a passion for $20,000 and an apology. Was the apology justice. There are many wrongs that need sincere? I really don’t care about apolo- to be righted, and there are many indivi- gies, and I donated the money to other or- duals who have been victims of injustice. ganizations whom he had maligned. I am very aware that I have a heavy re- sponsibility. That’s my duty and I plan to Why the smile on your face? The irony is use every moment to fulfill it. that Schmitz was a right-wing, John Bircher type. He always flaunted his so- The New Yorker said you may be the most called family values. It turns out that he famous practicing attorney in the country. had had a child outside of marriage with When did you know you were well-known? a student of his. I’m the one who leads a People come up to me wherever I am—in very conservative life style. the airport, sidewalk, a store…wherever. is a celebrated civil rights attor- GLORIA ALLRED In the 1980s, you sued Flair Dry Cleaners, ney whose practice includes representation of You went to the University of , and they changed their policy of charging victims of discrimination due to sex, race, age, married, had a child, divorced, and returned women more than men within five hours. physical handicap, or sexual orientation. She to live with your parents. How did that feel? Quickest victory? Yes. founded and currently serves as president of Life is what’s happening when you’re the Women’s Equal Rights Legal Defense and planning other things. In 1992, you pressured the U.S. Senate Education Fund. Among the many honors award- Ethics Committee and urged Oregon Sena- ed her are: the 1985 President’s Award from After earning a master’s degree, you moved tor Robert Packwood to release his diaries the National Association of Women Lawyers, to Los Angeles to be a teacher. Why L.A.? I after a newspaper article detailed his histo- the President’s Award for Outstanding Volun - decided that if I was going to be poor, I’d ry of . Aren’t diaries teer ism (presented in 1986 by President Ronald at least like to be poor in the sunshine. private? I filed a complaint against him, Reagan), the 2014 Lifetime Achievement Award My daughter was five years old, and I which led to the investigation of allega- from The National Trial Lawyers, and the 2016 thought it would be a wonderful place for tions of sexual harassment. The Ethics International Women’s Forum Women Who her to grow up. Committee took it from there. Make a Difference Award. Allred has been listed You graduated from Loyola Law School and in “Southern California Super Lawyers” from You sued the more became a lawyer in 1975. Good experience? than 20 years ago for excluding girls, and 2004 to 2017 as well as “Best Lawyers in Ameri - Loyola is where I met my wonderful part- ca” from 2011 to 2017. Her television commen- they changed their policy in October 2017. ners, Michael Maroko and Nathan Gold- Trend setter? Absolutely! We are pioneer- taries and show, We the People, with Gloria berg. They were my classmates. Allred, have been nominated for Emmys. Allred ing civil rights attorneys. We don’t wait is also the author of Fight Back and Win: My You dedicated your book Fight Back and for a time that it’s popular. Thirty-Year Fight Against Injustice—And How Win to your partners, crediting them in your In 2007, you represented em- You Can Win Your Own Battles. battle against injustice. How so? We work ployees in an age discrimination lawsuit. as a team. We could not have won the Are you seeing more of this as baby victories we have won and continue to boomers age? I think that more victims win without that effort. We’re still togeth- What’s the first thing in the morning that are aware of their rights and are more er more than four decades later. brings a smile to your face? The sunrise. willing to assert their rights. As a young woman, you were raped at What is a typical day? Every day is very Is there a change you think is needed in gunpoint while in . Did that inci- different. California Law? I would like the statute of dent inform the way you treat women? It limitations for civil cases for adult sur- What about weekends? I work all of the helps me understand what their life is vivors of child sexual abuse to be elimi- time unless I’m sleeping or occasionally like. Many of my clients call me Mama nated.

8 Los Angeles Lawyer March 2018 You went through your own messy divorce. Super Lawyer, White House Award, and and too pervasive. What do you legally advise those about to Emmy—is there something else you want? marry? Marriage is a business as well as Nothing, except to have this gift of life as What do you make sure to have in your brief romantic relationship. Sometimes, ro- long I’m permitted to have it. case? Two computers and two cell phones. mance blinds a person to the business as- What feature do you wish you could operate pect. Proceed at your own risk. What are your retirement plans? There is nobody who knows me that thinks that on your iPhone? I do not profess to have What is the most important part of a rela- I’ll retire. the knowledge that I should have about tionship? Honest communication. tech. I don’t text and I don’t have people Are they right? A hundred percent. call me on my cell phone. You’ve sued individuals, small businesses, corporations, and the government. What is You always appear to be camera ready. How What book is on your night stand? There is the common denominator among them? do you do it? I get enough sleep, I don’t do no book on my nightstand. By the time I Some form of injustice. drugs, I don’t drink alcohol, I never go to bed, I close my eyes and go to sleep smoked, and I’m a pescatarian. immediately. You’ve called yourself a warrior. What is the first thing you do to get ready for battle? You’ve been called a “limelight person.” What magazine do you pick up at the doc- Whatever you are planning to do or not What advice do you give young lawyers in tor’s office? I take my computer and work planning to do, make your client part of dealing with the media? They need to un- while I’m waiting. the decision-making. derstand what this is; it’s not Hollywood. It’s civil rights. What is your favorite restaurant? Whatever Do your clients expect you to be a miracle is closest when I am hungry. Any recent event you’re excited about? In worker? I say I am a lawyer and not a ma- Do you have a hidden talent? I love to dance. gician, but we’ll do the best that we can. early 2018, premiered a documen- tary called Seeing Allred, which was part What are the three most deplorable world It is said you don’t shop and don’t cook. of the U.S. Documentary Competition at conditions? Lack of equality for women, What is the one thing you enjoy that is not the 2018 Sundance Film Festival. poverty, and a lack of meaningful action work-related? Watching Curb Your Enthu- about climate change. siasm on the airplane. Cosby, Weinstein, Louis C.K., Moore, Franken, Trump…is this the nation’s Who are your two favorite presidents? Do you have a favorite exercise? Well, I ex- tipping point? This is it. It’s not just one Kennedy and Obama. ercise my mouth quite a bit, but I’m told moment; it’s been building for a very that doesn’t count. I do run through air- long time. But it doesn’t mean it’s the What do you want written on your tomb- ports, though. end of sexual harassment. It’s too severe stone? Here, we are all equal.

Los Angeles Lawyer March 2018 9 barristers tips BY YUJIN CHUN

Making Contact: The Benefits of Building a Strong Network

TOO OFTEN, NETWORKING IS low on the list of priorities for a areas. Many of them offer CLE credit for California attorneys, young, employed lawyer. Between figuring out the basics of law which provides an extra incentive for them to attend. practice and meeting billable hours, networking can seem a chore Alumni associations also offer networking opportunities since necessary only for job seekers. However, the positive relationships connecting with individuals outside the legal field is just as impor- that develop from networking can turn into mentorships, business tant as networking within it. Connecting with undergraduate referrals, and friendships. These relationships take time to build, and law school local alumni groups and getting involved in lead- which means the earlier an attorney starts, the more meaningful ership and volunteer positions within those groups can provide relationships he or she can form. pressure-free environments in which a young lawyer can establish Local bar associations are important resources for networking friendships, mentorships, and potential business connections. with other attorneys in the area. The Los Angeles County Bar Various universities also partner with other schools in hosting Associa tion (LACBA) Barrister’s Section offers many opportunities events, which can further expand networking opportunities. for young attorneys to connect with each other, as well as more Outside the established frameworks of bar and alumni asso- experienced attorneys and the judiciary, e.g., it holds events such ciations are various organizations that provide networking oppor- as the annual Bench and Bar Reception, which gives young attor- tunities through volunteering. While lawyers are encouraged to neys a chance to connect with state and federal judges in the engage in pro bono matters, volunteering outside the legal field area. LACBA also has various other sections attorneys can join, offers fresh perspectives, with the added benefits of giving back based on their practice areas. to the community and meeting new people. Volunteering with one of LABCA’s legal services projects Junior League of Los Angeles provides a highly structured (Domestic Violence, Veterans, Immigration, and AIDS) is a great environment in which women connect with one another and way to gain practical experience and to network with leading volunteer for various causes. Locating specific charities and other attorneys throughout Los Angeles who also volunteer with the nonprofits with volunteer programs is an option as well for those projects. To encourage young attorneys to take advantage of these who are concerned about the demands of such structures. Reading opportunities, LACBA recently changed its dues structure for to Kids, for example, is a nonprofit organization that is always new admittees and barristers. New admittees now receive LACBA looking for volunteers to read to children at schools on the week- and Barristers section memberships free for their first two years ends, with no further commitment beyond each day’s volunteering. instead of one, and receive their third year for $50, a free Barristers For those who find the networking aspect of bar and alumni section, and one free onsite CLE program of up to two hours. associations challenging, volunteering can be a great way to get An affinity bar association is a professional organization of started in making new connections. lawyers of diverse backgrounds, which may include race or eth- Taking on leadership positions within these organizations is nicity, gender, sexual orientation, national origin, religious affil- perhaps the fastest way to connect with their members. Further, iation, veteran status, and more. Affinity bar associations provide it indicates leadership skills to both current and prospective smaller pools of attorneys to connect with, which results in more employers, which can be a remarkable benefit for a young and/or intimate settings and thus the ability to become acquainted faster. inexperienced lawyer. However, a new lawyer would be wise to They can also provide unique volunteer opportunities as well as consider the time commitment needed as well as flexibility, if formal and informal mentorships. any, that these positions allow. As these organizations are largely For example, the Korean American Bar Association (KABA) made up of those in similar situations—working professionals holds regular events throughout the year, most of which are free in Los Angeles—the required meetings are often organized via to members. Members are often invited to participate in KABA- conference and video calls as opposed to in-person meetings. sponsored events, such as its monthly legal clinic, which provides However, they still require organizational skills as well as the free legal counsel to Korean Americans in Los Angeles. Members ability to communicate and manage time well. Furthermore, it also attend conferences together—e.g., the National Asian Pacific is important to determine whether these involvements would American Bar Association Conference and the International create conflict issues with one’s employer, its clients, or its expec- Association of Korean Lawyers—which helps solidify connections tations of the lawyer. within the group. The legal profession can and does seem like a daunting place Both law firms and various bar associations provide financial for a new lawyer, but it does not necessarily have to be. Establishing help to allow attorneys to attend conferences across the nation a strong network of friends and mentors has the potential to and the world, which allows for meeting people from other make a legal career much more fulfilling and enjoyable. n places as well as reinforcing relationships with those who traveled from the same place. Conferences for those in the legal field Yujin Chun is a litigation attorney at Salisian|Lee LLP in Los Angeles and a exist not only for various affinities but also different practice member of the LACBA Barristers Executive Committee.

10 Los Angeles Lawyer March 2018

practice tips BY TOBY ROTHSCHILD

The Shriver Act Advances the Cause of Civil Gideon

IN THE EARLY 1960S, a poor drifter named Clarence Gideon, pos- sessed of minimal formal schooling and a lengthy criminal record, was arrested and tried for burglarizing a pool hall in a small town in the Florida panhandle. Gideon knew enough about the legal system to request a court-appointed lawyer for his criminal trial, but the trial court declined his request, leaving him to talk to the jury and cross-examine the accusing witnesses all by himself. Unable to impeach his accusers’ credibility or point out contra- dictions in their testimony, Gideon soon found himself a convicted felon, sentenced to five years in state prison. The Florida Supreme Court affirmed Gideon’s conviction, finding that his request for a court-appointed lawyer had been properly denied. While in prison, Gideon studied the legal system. Acting in propria persona (or, as he put it, “in proper person”), Gideon hand-wrote a petition for certiorari1 to the U.S. Supreme Court, which agreed to hear the case. By this time, the Supreme Court had already decided in Betts v. Brady2 that government-paid counsel was not required in felony cases, except when there were special circumstances (for instance, if the defendant was illiterate or mentally disabled). But the days of Betts were numbered: future Supreme Court Justice Abe Fortas argued on behalf of Gideon that even highly competent and well-educated defendants were no match against the power of the state in criminal cases and that the Constitution guaranteed free legal representation to all defendants who were charged with felonies. Ultimately, the Supreme Court unanimously agreed with Fortas, holding that the denial of a state-paid lawyer in such circumstances violated the due process clause of the Fourteenth Amendment. Thanks to Gideon v. Wainwright,3 states are now required to provide free legal counsel to indigent defendants who are charged This concern has given rise to the movement generally known with a felony. as “Civil Gideon,” a phrase coined in the late 1980s by federal In the case of Clarence Gideon, having a lawyer made all the Judge Robert W. Sweet.5 Today, many in the “access to justice” difference in the world. While in the wake of Gideon several field prefer the phrase “Right to Civil Counsel” over “Civil hundred convicts were released from Florida prisons, the state Gideon,” in order to distinguish the movement from criminal chose to retry Clarence Gideon. Following the summation by law matters and the widely reported shortfalls in government Gideon’s court-appointed lawyer, the jury took only about an funding for public defenders. Regardless of the label, the goal of hour to render a full acquittal. the movement is perhaps best and most simply stated in a 2015 It cannot be overemphasized that having a lawyer improves resolution adopted by the Conference of Chief Justices and the access to justice. Conference of State Court Administrators, which calls for “100 But what about civil cases that threaten the loss of a person’s percent access to effective assistance for essential civil legal basic human needs? One sitting jurist has encapsulated the next needs.” As far back as 2006, the American Bar Association had frontier of Gideon as follows: similarly urged “federal, state, and territorial governments to In the criminal context, a defendant facing the risk of provide legal counsel as a matter of right at public expense to incarceration is, at the very least, entitled to an attorney low income persons in those categories of adversarial proceedings as a constitutional right. There is, however, no such cor- where basic human needs are at stake, such as those involving responding right in the vast majority of civil cases. Yet, shelter, sustenance, safety, health or child custody, as determined civil cases deal with many matters that we hold perhaps by each jurisdiction.”6 just as dear as our own personal freedom, including custody of our children, our physical safety, our ability to work, Toby Rothschild practices ethics and professional responsibility law on behalf 4

RICHARD EWING and our need for shelter. of legal services programs in California.

12 Los Angeles Lawyer March 2018 The struggle to guarantee counsel in become all too familiar in present-day Los without fee; and are excused from paying civil cases involving basic human needs Angeles County, there was no court reporter costs….”’”17 Marshall, another leading has been played out in courts and legisla- present for the trial, so the aggrieved tenant British commentator, wrote, “‘With a view tures across the country. In California, a had to follow the complicated and labor- to enable such poor persons as have not right to court-appointed counsel has his- intensive process of obtaining a “settled ability to pay the expenses incidental to torically been recognized in a number of statement” for his appeal. This process the prosecution of an action to enforce noncriminal matters initiated by the state. essentially requires all parties and the trial their rights, they may, upon such inability These include situations in volving minors court to cooperate in recreating an ad hoc being shown, be admitted to sue in forma in juvenile delinquency proceedings,7 for version of the court reporter’s trial tran- pauperis. When so admitted the plaintiff those committed to prison after a Youth script. Ultimately, the court of appeal’s is exempt from the payment of court fees, Authority commitment,8 for parents with decision in Quail simply remanded the and he is entitled to the service of counsel, children in out-of-home care,9 in specified case back to the appellate departments of and of an attorney, who render their ser- circumstances for minor respondents in the superior court to conduct further work vices without reward…’”18 Justice John - juvenile dependency proceedings,10 for on the settled statement. Nothing contro- son’s source for these quotes was none parents in proceedings to declare children versial there. other than the California Supreme Court. free from parental custody and control,11 Yet, it was Mr. Quail’s request for ap - In 1917, the California Supreme Court for a noncustodial parent accused of neglect pointed counsel, to be paid by the gov- expressly ruled in Martin that indigent in stepparent adoption proceedings,12 for ernment—a request which was denied by California litigants were entitled to the defendants in proceedings prosecuted by trial and appellate courts alike—that led same in forma pauperis rights conferred the state to determine paternity,13 for defen- to the (partial) dissent, penned by Justice on indigent litigants in England prior to dants in actions to reimburse counties for Earl Johnson. Justice Johnson explained 1850, at least as regards payment of court child support payments under Welfare that he would have appointed counsel for costs.19 The supreme court acknowledged and Institutions Code Section 11350, for Mr. Quail for two reasons: first, that Mr. that no California statute provided for a people seeking to overturn certification Quail was not only indigent but also suf- waiver of court costs, instead resting its for intensive treatment for mental health fered from mental disabilities, and, second, decision on English common law rights as disorders,14 and in several other situations. more comprehensively, because the Calif - set forth in the writings of Black stone and Yet, a guaranteed right to counsel in cases ornia Constitution guarantees state-paid Marshall. Because the petitioner in Martin involving the potential loss of housing, counsel in such cases. The route by which already had his own lawyer, the “right-to- in child custody cases, and in guardian - Justice Johnson reached this latter conclu- counsel” component of English common ships and conservatorships remains mostly sion is fascinating. law was not ripe for review. Nonetheless, illusory. Justice Johnson’s dissenting opinion the court held that indigent Californians emphasizes that a common law right to were entitled to a waiver of court fees Lassiter counsel in civil cases has existed in Calif - specifically because that right existed under Those hoping for a judicial fiat that would ornia since 1850 and that this right was the common law of England prior to 1850. find a right to civil counsel in the federal implicitly recognized by the California Justice Johnson’s dissent explained that the Constitution must grapple with a 1981 deci- Supreme Court in 1919. A digression is logical extension of Martin is to grant a sion in a case called Lassiter v. Depart ment in order here. It is a little known fact that, right to civil counsel, as well as fee waivers, of Social Services of Durham County.15 In since the adoption of the California Con - since the right to appointed counsel likewise that case, the U.S. Supreme Court deter- stitution in 1850, the “rule of decision in existed under English common law mined that an indigent parent facing ter- all the courts of this state”—unless con- To the chagrin of those hoping for a mination of parental rights, in a proceeding travened by positive law—is the common decision vindicating a constitutional right initiated by the state, had no due process law of England. This is so despite the fact to civil counsel, Justice Johnson was always right to counsel. Due process, the Court that, as of 1850, the United States had just one vote short. He was in a 2-1 minor- held, guarantees a right to ap pointed coun- long since thrown off the shackles of ity in Quail, and Quail’s petition for state sel only when the indigent litigant “may British imperialism and had established supreme court review of the denial of his be deprived of…physical liberty” if he or its own common law by judicial decisions request for counsel garnered only three of she loses the case. Unlike Betts, Lassiter throughout the states of the union. Today, the necessary four votes. As Justice Johnson has exhibited remarkable staying power this rule is expressly laid out in California noted in his dissenting opinion: “When in the three-and-a-half decades since its Civil Code section 22.2: “The common some resourceful, lucky indigent lay person issuance. law of England, so far as it is not repug- finally reaches the California Supreme The California Constitution, however, nant to or inconsistent with the Con - Court with this issue, the reasoning of may hold promise for a different result. stitution of the United States, or the Consti- Martin…should also render choate the Within California, a framework for pos- tution or laws of this State, is the rule of right to free counsel in civil cases. Certainly, sible future judicial determination of a civil decision in all the courts of this State.” “English cases prior to 1850…had ex - right to counsel was promulgated four Justice Johnson’s dissenting opinion in pressly recognized such a right.”20 years after Lassiter, by way of a concurring Quail firmly establishes that English com- Shriver Act and dissenting opinion from the California mon law before 1850 provided indigent Court of Appeal in the case of Quail v. civil litigants with a right to the assistance To this day, 33 years after Quail, we still Municipal Court.16 of appointed counsel without charge. Citing have no definitive word from the California The majority opinion in Quail is about to the 1917 case, Martin v. Superior Court, Supreme Court on the subject of a guar- as pedestrian as it gets. Poor Mr. Quail Justice Johnson quotes Blackstone who anteed right to civil counsel. For the time was evicted from his home, and he filed wrote that “‘“paupers…are, by statute… being, then, the ball remains in the legis- an appeal to try to overturn the eviction to have original writs and subpoenas gratis, lature’s court. Indeed, the Calif ornia State judgment. However, in a pattern that has and counsel and attorney assigned them legislature has acted. In 2009, California

Los Angeles Lawyer March 2018 13 enacted the nation’s most comprehensive state needs to provide counsel in other Angeles County, is devoted to housing ser- right to counsel law: the Sargent Shriver areas in order to ensure equal access to vices—essentially, help defending poor peo- Civil Counsel Act, codified at Government justice. The fundamental goal of the act, ple against evictions. Services provided Code Sections 68650 et seq. The law estab- and the right to counsel movement as a under this branch of the Shriver Act have lishes numerous pilot projects, funded by whole, is to ensure that court cases are covered over 73,000 household members. increases in court fees, as collaborative decided on the merits, and not on the basis Independent Evaluation ventures between legal service providers of which party is represented by counsel and their local superior courts. Many of and which is not. Late last year, as required by law, the the projects are colloquially referred to as Ten pilot projects were established in Judicial Council reported to the California “Shriver Projects.” These projects provide the first five years of the Shriver Act. These State Legislature the findings of an inde- legal assistance and judicial system inno- programs have provided legal counsel to pendent evaluation of the progress of the vations to help low-income individuals nearly 27,000 individuals facing the loss pilot programs established under the and families facing critical legal problems of their homes, child custody disputes, or Shriver Act.21 Those findings clearly estab- involving basic human needs. The act also the urgent need for guardianship or con- lished that one of the primary goals of the calls for analysis, evaluation, and reports servatorship services. Perhaps the most legislation—to improve the administration to the legislature, to assess whether the visible part of the program, at least in Los of justice by providing free legal counsel in civil cases in which basic human needs are at risk—is being met by Shriver Act lawyers. The Judicial Council’s independent eval- uation specifically found that eviction is one of the most critical civil justice issues for low-income individuals. This stands to reason: the loss of housing poses a wide range of short- and long-term risks and consequences for individuals and their fam- ilies. Homelessness often follows eviction; children’s education and well-being are hampered, as families may be uprooted and required to move their children from school to school; and even personal mental and physical health can be adversely affected. Among eviction cases that received full representation by Shriver Act counsel, the evaluation reported positive outcomes: 1) significantly fewer eviction cases ended with default judgments for eviction, a find- ing that illustrates a fundamental propo- sition known to judges throughout the state, viz., that many self-represented liti- gants lack the basic knowledge or resources needed to file a simple answer in court; 2) once a formal court appearance was made, Shriver Act counsel routinely helped tenants to avoid evictions; 3) most eviction cases ended up settling, thereby providing more certainty for both landlords and tenants; and 4) Shriver Act services supported long- term housing stability. The higher rate of settlement agreements among Shriver Act clients, and the terms of those agreements, improved housing stability. The Shriver Act pilot projects also han- dled child custody cases for litigants who qualified. Child custody cases are complex, emotionally charged, contentious, and have the potential for life-altering impli- cations for families and children. Three programs lent Shriver Act services to self- represented parents facing opposing parties with lawyers, when sole custody of a child or children was at issue. Sadly, about half of these cases presented elements of domes-

14 Los Angeles Lawyer March 2018 Los Angeles Lawyer Month 0000 15 tic violence, real or alleged. The evaluation erwise resulted in an undesirable status quo Emphasis on Attorney Professionalism and Ethical found that cases involving Shriver Act ante. Secondly, the pilot project helped pre- Obligations in the Classroom and Beyond, 27 GEO. J. LEGAL ETHICS 1187, 1189 (2104). representation improved the administra- vent the need for additional governmental 5 Hon. Robert Sweet, Civil Gideon and Confidence tion of justice and resulted in a greater services. Ask any judge, and he or she will in a Just Society, 17 YALE L. & POL’Y REV. 503 (1998). number of collaborative outcomes: A tell you that these contested cases in which 6 Report of the ABA Task Force on Access to Civil Jus - higher proportion of Shriver Act cases all parties are being represented by counsel tice to the House of Delegates, Recommendation at 1 resulted in settlement, judicial involvement uniformly proceed more efficiently and with (Aug. 7, 2006) , available at https://www.americanbar .org/content/dam/aba/administrative/legal_aid_indigent_ in settlement conferences increased the superior outcomes, when compared with defendants/ls_sclaid_06A112A.authcheckdam.pdf. rate of settlement, having attorneys on cases involving pro se litigants. In short, 7 In re Gault, 387 U.S. 1, 41 (1967); WELF. & INST. both sides of a child custody dispute access to justice and the administration of CODE §634. increased collaboration between the par- justice are both improved when lawyers are 8 WELF. & INST. CODE §1781. ties, and significantly fewer Shriver Act part of the equation. Indeed, equal justice 9 In re Christina H., 182 Cal. App. 3d 47, 49 (1986); cases experienced subsequent requests to for all can only be truly achieved when Cleaver v. Wilcox, 499 F.2d 940, 944–945 (9th Cir.1974); cf. WELF. & INST. CODE §317(b). modify court orders. there is equal access to justice. 10 WELF. & INST. CODE §317 (c). Finally, improving family stability To date, the Shriver Act has been shown 11 In re Jacqueline H., 21 Cal. 3d 170, 174, 176 (1978). through the establishment of guardianships to achieve the superior outcomes desired 12 In re Jay R., 150 Cal. App. 3d 251, 260-65 (1983). and conservatorships was the goal of one in our legal system. While a guaranteed 13 Salas v. Cortez, 24 Cal. 3d 22, 34 (1979). 14 of the Shriver Act projects. Qualifying cases right to civil counsel in cases involving the WELF. & INST. CODE §§5254.1, 5276 15 Lassiter v. Department of Soc. Servs. of Durham typically involved significant risk factors potential loss of basic human needs is not County, 452 U.S. 18 (1981). for children or disabled persons. Once again, (yet) the law of the land, the Shriver Act has 16 Quail v. Municipal Ct., 171 Cal. App. 3d 572 the Judicial Council’s independent evaluation demonstrated that the right to civil counsel (1985). highlighted the benefits to society obtained is a critical element of society’s aspirational 17 Id. at 580, citing Martin v. Superior Ct., 176 Cal. by implementation of a right-to-counsel goal of equal justice for all. n 289, 294 (1917). 18 Quail, 171 Cal. App. at 580, citing Martin, 176 regime. Court proceedings in Shriver Act Cal. at 294. cases were more efficient, and translated 1 National Archives Catalog, Handwritten Petition 19 Martin, 176 Cal. at 294. into cost savings for the court. The combined for a Writ of Certiorari from Clarence Gideon to the 20 Quail, 171 Cal. App. 3d at 581. efforts of Shriver Act representation and Supreme Court of the United States (1961), available 21 Letter from Martin Hoshino, Administrative Dir- at probate facilitators reduced court costs by https://catalog.archives.gov/id/597554 (last viewed ector, Judicial Council, to Diane F. Boyer-Vine, Legis- Jan. 30, 2018). lative Counsel, et al., regarding Evaluation of the an average of 25 percent per case. First, 2 Betts v. Brady, 316 U.S. 455 (1942). Sargent Shriver Civil Right to Counsel Act (AB 590) Shriver Act lawyers were able to successfully 3 Gideon v. Wainwright, 372 U.S. 335 (1963). (Aug. 4, 2017), available at http://www.courts.ca.gov file guardianship petitions in cases in which 4 Hon. Anna Blackburne-Rigsby, Ensuring Access to /documents/lr-2017-JC-Shriver-civil-right-to-counsel the absence of legal counsel may have oth- Justice for All: Addressing the “Justice Gap” Through .pdf.

16 Los Angeles Lawyer March 2018 practice tips BY ARASH HOMAMPOUR AND SCOTT BOYER

Recent Amendments Clarify Voir Dire Conduct in Civil Matters

VOIR DIRE LITERALLY MEANS “to speak the truth.”1 The modern part of potential jurors. Demonstrated bias in the responses French translation of voir dire is “to see and say”; therefore, to questions on voir dire may result in a juror being excused voir dire is to see prospective jurors and hear what they have to for cause; hints of bias not sufficient to warrant challenge say in response to questions about their prospective service as a for cause may assist parties in exercising their peremptory juror.2 In the modern jury system, voir dire is the process by challenges. The necessity of truthful answers by prospective which prospective jurors are questioned about their backgrounds jurors if this process is to serve its purpose is obvious.8 and potential biases before being chosen to sit on a jury. It is the The California Constitution guarantees parties a trial by an process by which attorneys select, or perhaps more appropriately impartial jury as “an inviolate right.”9 California law requires reject, potential jurors on a case. Allowing attorneys sufficient jurors to be able to fulfill their role with “entire impartiality.”10 time to conduct voir dire is essential to ensuring a fair and The impartiality of the jury is an “essential attribute” of the impartial jury because it is the only opportunity attorneys have historic right to a jury trial, without which the substantial right to question jurors about potential bias. to a jury trial is violated. “We therefore conclude that the real Historically, as trial judges on civil cases became concerned essential attributes of the so-called common-law jury trial were about the amount of time spent on voir dire, attorneys on both at all times ‘number, impartiality and unanimity.’”11 sides of the aisle, as well as the judiciary, became concerned As incorporated into the statutory language, the purposes of about arbitrary (or unreasonable) time limits being imposed on voir dire are, among other things: 1) to select a fair and impartial voir dire.3 When arbitrary or unreasonable time limits were jury and 2) to assist counsel in the intelligent exercise of both imposed, the trial attorney’s ability to identify biased jurors peremptory challenges and challenges for cause.12 In utilizing arguably became just as arbitrary.4 In response, the legislature voir dire for these purposes, counsel must be allowed a “liberal recently amended Section 225.5 of the Code of Civil Procedure, and probing examination to discover bias and prejudice with making it clear that unreasonable and inflexible time limitations the circumstances of each case.”13 “Counsel should at least be shall not be imposed on voir dire in civil cases.5 The amendments allowed to inquire into matters concerning which…the population further clarify that trial counsel shall be permitted supplemental at large is commonly known to harbor strong feelings that may… time for questioning potential jurors when certain factors are significantly skew deliberations.”14 triggered, counsel shall be allowed to make a brief opening state- Only by allowing thorough voir dire can a party intelligently ment before voir dire, and requests to use juror questionnaires assess whether to challenge a juror for cause. Challenges for shall not be arbitrarily refused. cause can be made based upon: “(A) General disqualification— Similar amendments have recently been made to the statutes that the juror is disqualified from serving in the action on trial; governing voir dire in criminal proceedings. The focus of this (B) Implied bias—as, when the existence of facts as ascertained, article, however, is on the amendments regarding voir dire in in judgment of law disqualifies the juror; (C) Actual bias—the civil trials and methods for civil practitioners to utilize the amend- existence of a state of mind on the part of the juror in reference ments in conducting voir dire. to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to Right to an Unbiased Jury the substantial rights of any party.”15 The importance of having sufficient time to conduct voir dire is Rules and Standards rooted in the constitutional right to an unbiased jury. Over 100 years ago, the California Supreme Court recognized that the Under Section 225.5 and Rule 3.1540 of the California Rules of “right to unbiased and unprejudiced jurors is an inseparable and Court, the trial judge in a civil case begins voir dire with an inalienable part of the right to a trial by jury guaranteed by the initial examination. After the completion of the trial judge’s constitution.”6 examination, counsel for both parties have the right to conduct The California Supreme Court noted that, “‘[w]ithout an ade- questioning. quate voir dire the trial judge’s responsibility to remove prospective Rule 3.1540 provides: “Examination of prospective jurors in jurors who will not be able impartially to follow the court’s civil cases” states that, “(b) In examining prospective jurors in instructions and evaluate the evidence cannot be fulfilled. civil cases, the judge should consider the policies and recom- [Citation.] Similarly, lack of adequate voir dire impairs the defen- mendations in standard 3.25 of the Standards of Judicial Admin - dant’s right to exercise peremptory challenges where provided by statute or rule….’”7 Arash Homampour and Scott Boyer are trial attorneys with the Homampour As the U.S. Supreme Court has also stated: Law Firm in Sherman Oaks, California, where they specialize in personal Voir dire examination serves to protect that right by expos- injury, employment, product liability, and insurance bad faith matters. Boyer ing possible biases, both known and unknown, on the is a member of the Los Angeles Lawyer Editorial Board.

Los Angeles Lawyer March 2018 17 istration.”16 Standard 3.25 is a rather topic has been included in the judge’s exam- sage. Attorneys have reported that lengthy direction to the trial judge that ination should not preclude additional in some courts there are arbitrary “the examination of potential jurors should nonrepetitive or nonduplicative questioning limits of 20 or 30 minutes for voir include the following areas of inquiry and in the same area by counsel.”20 dire in unlimited civil jurisdiction any other matters affecting their qualifi- It is critical to note that Standard 3.25 cases. Such limits contradict the orig- cations to serve as jurors in the case.”17 starts by directing the trial court to tell inal intent of the statute.26 Standard 3.25(a)(1) provides, in relevant jurors that “the parties are entitled to have Effective January 1, 2018, Section 222.5 part, that: a fair, unbiased, and unprejudiced jury” has been amended to reflect the strong The examination of prospective jur - and ends with the trial court’s asking if policy prohibiting restrictive time limits ors in a civil case…should include there is any reason “that might make them on voir dire in civil trials. In fact, the recent all questions necessary to ensure doubtful they would be a completely fair amendments make clear that unreasonable the selection of a fair and impartial and impartial juror in this case.” As such, and inflexible time limitations shall not jury…. During any supplemental blanket time limits with little flexibility be imposed on voir dire. Even though the examination conducted by counsel affected trial counsel’s ability to follow up scope of attorney examination during voir for the parties, the trial judge should on these topics and uncover potential bias.21 dire is left to the sound discretion of the permit liberal and probing exami- In fact, a new trial can be granted when trial judge, the judge is required to consider nation calculated to discover possible a juror conceals during voir dire “a bias, the enumerated factors, which include the bias or prejudice with regard to the belief or state of mind which prevents a following: the amount of time requested circumstances of the particular case. juror from following the court’s instructions by trial counsel; any unique or complex Standard 3.25(a)(2) provides, in relevant and acting in an impartial manner.”22 Also, elements—legal or factual—in the case; part, that: the imposition of arbitrary time limits on length of the trial; number of parties; num- In exercising his or her sound dis- voir dire can be argued to constitute an ber of witnesses; and whether the case is cretion as to the form and subject irregularity in the proceedings that may designated as a complex or long cause. matter of voir dire questions, the support a new trial.23 These considerations are meant to fashion trial judge should consider, among the scope of voir dire towards the circum- Section 222.5 Amendments other criteria: (1) any unique or com- stances of the “unique case” that is before plex elements, legal or factual, in the Section 222.5 was enacted in 1990 to the court.27 case, and (2) the individual responses include procedures governing the selection The amendments to Section 222.5 also or conduct of jurors that may evince of a fair and impartial jury in civil trials.24 make clear that counsel shall be permitted attitudes inconsistent with suitability These procedures were designed to ensure supplemental time for questioning jurors to serve as a fair and impartial juror that a party had sufficient opportunity to when any of the following factors are in the particular case.18 question the jury and prohibit unreasonable shown: individual responses or conduct Standard 3.25(c) directs the trial judge and arbitrary time limits for attorney voir of jurors that may evince attitudes incon- to actually tell jurors that “the parties are dire.25 Even with recent amendments to sistent with suitability to serve as a fair entitled to have a fair, unbiased, and unprej- Section 222.5, trial counsel in civil matters and impartial juror in the particular case, udiced jury.” It includes various topics to were still concerned that unreasonable and composition of the jury panel, and an be covered by the trial judge during voir arbitrary time restrictions were being unusual number of for cause challenges. dire, and the list is extensive. Examples imposed on attorney examination during For instance, unanticipated responses to include: the nature of the case, including voir dire. These restrictions prompted the topics listed in Standard 3.25 may alleged injuries or damages; whether the California SB 658, which sought to amend prompt the need for additional time to juror feels the type of case should be section 222.5 and foreclose arbitrary time question prospective jurors. brought into court for determination by a limits on attorney voir dire. Prior to the recent amendments to jury; whether the juror or anyone with The author of the proposed statutory Section 222.5, a party could request that whom the juror has a significant relation- amendments noted: it be allowed to make a brief opening state- ship has ever sued in connection with a The selection of an unbiased jury ment before voir dire. However, the statute similar case; whether any of the parties, serves all parties and is crucial to was not clear as to whether allowing this witnesses, or attorneys come from a par- maintaining the integrity of our mini-opening statement before voir dire ticular national, racial, religious group (or courts. Currently, judges are setting was mandatory upon attorney request.28 may have a different lifestyle) that would blanket, arbitrary, and unreasonable Amended Section 222.5 states that, if affect the juror’s judgment; or the all-encom- time limits for voir dire. Judges use requested by a party, a brief opening state- passing question of whether there is any their discretion to set these limits ment shall be allowed by counsel for each other reason that might make the juror even though CCP §222.5 specifi- party prior to voir dire, thereby removing “doubtful they would be a completely fair cally states not to set blanket time any doubt as to whether granting an attor- and impartial juror in this case”.19 Each limits. SB 658 would address the ney’s request for a mini-opening is manda- of these areas of inquiry is designed to elicit issue of unreasonable and arbitrary tory or not. By presenting in a nonarg- honest responses from potential jurors that restrictions on attorney examination umentative manner the liability and/or may shed light on potential bias. of potential members of a jury. damage issues or unique circumstances the It frequently may take longer than five Liberal and probing voir dire is nec- jury will be asked to decide, the mini-open- minutes per juror for an attorney to follow essary to ensure that the Seventh ing statement affords counsel an oppor- up on the topics covered by the judge. In Amendment right to a jury trial is tunity to more efficiently question jurors fact, many of the topics produce answers meaningful. The current statute was during voir dire. by potential jurors that require extensive intended to prohibit these limita- Finally, as an additional tool to more follow-up by an attorney, which is recog- tions, but its enforcement has eroded efficiently question jurors within time allot- nized by Section 222.5: “The fact that a in the quarter century since its pas- ments, amended Section 222.5 provides

18 Los Angeles Lawyer March 2018 that a trial judge should not arbitrarily or or on, the concrete.”32 The court ultimately trial, including the need for preinstruction unreasonably refuse to submit written held that the defendant could ask prospec- on key jury instructions. If there is a need questionnaires when requested by counsel. tive jurors in a murder case in which the for supplemental time to question jurors, The contents of questionnaires must be defense was self-defense: “Would you will- it is important to clearly identify the spe- approved by the court. As such, opposing ingly follow an instruction to the effect cific issues precipitating the need for addi- counsel desiring to use a juror questionnaire that a person has a right to resist an aggres- tional time and tactfully request that addi- are encouraged to work together in sub- sor by using necessary force and has no tional time from the judge. n mitting mutually acceptable questions. The duty to retreat?”33 statutory amendments also make it clear The supreme court also confirmed that 1 BLACK’S LAW DICTIONARY (10th ed. 2014). that parties shall be given reasonable time a trial judge can preinstruct prospective 2 People v. King 195 Cal. App. 3d 923, 932-933(1987). to evaluate the questionnaire responses jurors during voir dire on key instructions 3 A.B. 1403, Sen. Jud. Comm. (2011-12 Reg. Sess.), before oral questioning commences. of law.34 Therefore, counsel should ask as amended Sept. 2, 2011, [hereinafter A.B. 1403] (“This amended version is the consensus result of a permission of the court to read key jury Uncovering Potential Bias working group of plaintiff attorneys, defense attorneys, instructions and ask for sufficient time to and judges….The new amendments clarify that trial Because Section 222.5 mandates that coun- question prospective jurors on whether courts cannot impose blanket, across-the-board time sel should be permitted to conduct a “lib- they understand the instruction and will limits to voir dire an entire jury panel.”). 4 eral and probing examination calculated they follow the instruction if it is given by Id. 5 CODE CIV. PROC. §225.5. to discover bias or prejudice with regard the court. 6 Lombardi v. California St. Cable R. Co., 124 Cal. to the circumstances of the particular case” Another important issue which fre- 311, 317 (1899). and “in order to enable counsel to intelli- quently takes a significant amount of time 7 In re Hitchings, 6 Cal. 4th 97, 110 (1993) (citation gently exercise both peremptory challenges to discuss with prospective jurors is the omitted). 8 and challenges for cause,” it is critical for topic of damages and, more specifically, a McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (1984). counsel to identify the unique “circum- prospective juror’s ability to award dam- 9 CAL. CONST. art. I, §16. stances of the particular case” that require ages. Although there is not a significant 10 CODE CIV. PROC. §225(b)(1)(C). more time to conduct a “liberal and prob- amount of relevant case authority on the 11 People v. Richardson, 138 Cal. App. 404, 408-409 ing examination.” One method to identify topic, a leading treatise confirms that plain- (1934). the unique circumstances that require more tiff’s attorneys are usually permitted to 12 CODE CIV. PROC. §222.5; Bly-Magee v. Budget Rent- a-Car Corp., 24 Cal. App. 4th 318, 324 (1994). time is to identify the applicable CACI question prospective jurors as to their abil- 13 Bly-Magee, 24 Cal. App. at 324. Instructions and ask for preinstruction. ity to return a large verdict if supported 14 People v. Williams, 29 Cal. 3d 392, 406-408 (1981). 35 In fact, it is prudent to ask the trial judge by the evidence. If counsel represents the 15 CODE CIV. PROC. §225. if the key jury instructions can be read and plaintiff, he or she should inform the court 16 CAL. R. OF CT. 3.1540. discussed with jurors. It is improper to ask before trial of the intention to discuss this 17 STANDARDS RELATING TO EXAMINATION OF PROS- “any question which, as its dominant pur- topic with prospective jurors and the need PECTIVE JURORS IN CIVIL CASES §3.25. 18 Id. pose, attempts to precondition the prospec- for sufficient time to do so. 19 Id. tive jurors to a particular result, indoctrinate 20 CODE CIV. PROC. §222.5. Submitting a Brief Before Trial the jury, or question the prospective jurors 21 A.B. 1403, supra note 3 (“Not only is voir dire of concerning the pleadings or the applicable Every good trial attorney is aware that a two minutes or less per prospective juror inadequate law.” 29 But one of the directions in Standard civil trial can be won or lost in voir dire. to un cover potential bias, it is difficult, if not impos- sible, to preserve a record on appeal that a juror con- 3.25(c) is that the trial judge will ensure After spending years and thousands of cealed bias.”). jurors “will, without reservation, follow dollars (and sometimes hundreds of thou- 22 Tapia v. Barker 160 Cal. App. 3d 761, 765 (1984). the court’s instructions and rulings on the sands of dollars) on costs alone to get a 23 CODE CIV. PROC. §657. law and will apply that law to the case.”30 case ready for trial, the critical process of 24 A.B. 3820 (Brown, ch.1232, Stat. 1990). 25 A juror will need to know what the law is voir dire should not be rushed. Fortunately, Id. 26 S.B. 658 (2017-18 Reg. Sess.), Sen. Rules Com., as before the judge and counsel can make sure with enactment of the recent statutory amended May 9, 2017 [hereinafter S.B. 658, May 9] the jury will follow the applicable jury amendments, it is hopeful from the leg- 27 S.B. 658 (2017-18 Reg. Sess.), Sen. Jud. Comm, instructions. islative record that a proper balance be - April 24, 2017. On this issue, the California Supreme tween the court’s discretion in guiding 28 S.B. 658, May 9, supra note 25. Court held that “a reasonable question proper questioning of prospective jurors 29 CODE CIV. PROC. §222.5. 30 about the potential juror’s willingness to in a civil trial and counsel’s ability to con- STANDARDS RELATING TO EXAMINATION OF PROS- PECTIVE JURORS IN CIVIL CASES §3.25(c). apply a particular doctrine of law should duct thorough and meaningful voir dire 31 People v. Williams 29 Cal. 3d 392, 410 (1981). be permitted when from the nature of the can be achieved.36 32 Id. at 410 n.14. case the judge is satisfied that the doctrine As such, a brief submitted before trial 33 Id. at 398. is likely to be relevant at trial.”31 The is an effective way to outline the amend- 34 People v. Elliott 53 Cal. 4th 535, 559 (2012) (“The supreme court reasoned that a juror’s blan- ments and applicable principles. The brief trial court correctly informed the jury about the rules governing circumstantial evidence and correctly ket promise “to follow whatever instruc- can cite amended Section 225.5 and outline informed the jury about the governing standard of tions the judge may give” may not disclose the issues in the case requiring the estimated proof beyond a reasonable doubt.”). an attitude or bias towards a specific law time for voir dire. The brief can request 35 WEGNER, ET AL., CAL. PRAC. GUIDE CIVIL TRIALS AND that has not been identified. For example, that a mini-opening statement be allowed, EVIDENCE, §5:312 (2017). (“For example, in a case “although nearly everyone adheres to the as well as the use of jury questionnaires. involving a $1 million damage claim, plaintiffs’ counsel may ask:– “Assuming liability is established in this proposition that the law should be obeyed, The Judicial Council publishes form case, would you be able to return a verdict for $1 mil- a substantial number of motorists, when questionnaires, which can be used in certain lion?”– “Would you require a higher standard of proof confronted with the 55-mile-per-hour speed civil cases and also can be at tached to the on liability in order to return such a verdict?”). limit…demonstrate that attitudes expressed brief. Counsel should be prepared to dis- 36 S.B. 658 (2017-18 Reg. Sess.), Sen. Jud. Comm., in the abstract are not always applied in, cuss these issues with the court before Unfinished Bus., as amended Aug. 22, 2017.

Los Angeles Lawyer March 2018 19 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 23.

by KEVIN RIVERA ACCOMMODATING

AttorneysThe interactive process that a law firm establishes to assist disabled staff is key to selecting appropriate accommodations

LAW FIRMS and other legal employers in California have an affirmative legal duty under state and federal law to provide reasonable accommodation to their attorneys with disabilities unless doing so would cause undue hardship. According to the most recent data provided by the Equal Employment Opportunity Commission, 35.3 percent of EEOC claims filed in California in 2017 were based on disability, surpassing the number of claims filed based on any other protected charac- teristic, including race, sex, color, religion, national origin, or age.1 Similarly, the California Department of Fair Employment and Housing (DFEH) reported that the majority of employment-based discrimination claims it received in 2016 were based on disability.2 This is not surprising given the complexity of the law on accommodating individuals with disabilities. Providing reasonable accommodation to attorneys with disabilities lifts barriers to employment faced by disabled attorneys and serves the larger goal of enabling legal employers to diversify their workforce. Reasonable Accommodation A California employer’s duty to provide reasonable accommodation to individuals with disabilities is principally derived from two laws, the federal Americans with Disabilities Act (ADA)3 and the California Fair Employment and Housing Act (FEHA).4 The ADA prohibits private sector employers from discriminating against employees on the basis of disability and requires employers to provide reasonable accommodation to qualified applicants and employees with disabilities, unless doing so would cause undue hardship.5 Like the ADA, the FEHA requires employers to provide reasonable accom- modation for the known physical or mental disability of an applicant or employee, unless doing so would impose an undue hardship.6 One major difference between the FEHA and ADA is that while the ADA applies to employers with 15 or more employees,

Kevin Rivera is the principal and founder of Rivera Employment Law in Los Angeles. KEN CORRAL

20 Los Angeles Lawyer March 2018 the FEHA applies to employers who regu- whether the cost of a particular accom- A disabled employee has exhausted larly employ just five or more employees.7 modation imposes an undue hardship leave under state or federal law or under Under the FEHA, an employer has an depends on the em ployer’s re sources and the employer’s leave policy, and the em - affirmative duty to provide reasonable ability to pay, and not on the accommo- ployee or employee’s health care provider accommodation(s) for the disability of an dation’s benefit to the employer and attor- indicates that further accommodation is applicant or employee unless it can demon- ney in relation to its cost. necessary. Often, an employee’s doctor will strate, after engaging in the interactive Undue hardship includes “reasonable place an employee on medical leave for a process, that the accommodation would accommodations that are unduly extensive, duration that exceeds the amount of leave impose an undue hardship.8 Thus, an substantial, or disruptive, or those that the employee is entitled to by law or under employer’s duty with respect to disabled would fundamentally alter the nature or the employer’s leave policy. Employers are attorneys encompasses two distinct yet operation of the business.”14 Law firms required to take a request for such addi- related obligations: to make “reasonable and other employers, however, should exer- tional time off as a request for accommo- accommodation” and to engage in an “inter- cise caution when denying an accommo- dation. For example, in a hypothetical sit- active process.” “Reasonable accommoda- dation based on undue hardship, as “[t]he uation, an in-house attorney is out under tion” refers to a modification or adjustment bar for undue hardship is ‘high.’”15 If the the Family and Medical Leave Act due to to the work environment that enables an determination is later challenged in court, a serious health condition, and his or her employee to perform the essential functions the employer will have to present “proof leave entitlement ends on June 1,19 and, of the job he or she holds.9 An “interactive of actual imposition or disruption” that on May 30, the attorney submits medical process” consists of a dialogue between an would have resulted from granting the documentation to the supervisor indicating employer and employee to assist the em- accommodation.16 “Hypothetical or merely that he or she must remain off work until ployer in selecting an appropriate accom- conceivable hardships cannot support a June 25, the employer is required to inter- modation.10 claim of undue hardship.”17 Whether a pret the doctor’s note as a request by the reasonable accommodation will cause attorney for accommodation for the period Undue Hardship undue hardship should be based on a case- starting June 2. If providing a reasonable accommodation by-case basis, careful analysis, and be metic- Medical Documentation for an employee’s disability would impose ulously documented. an undue hardship on the employer, the If an attorney’s disability or need for accom- Interactive Process accommodation is not required.11 The modation is not obvious, his or her em - FEHA defines “undue hardship” as “an FEHA regulations provide that the em ployer ployer may require the attorney to provide action requiring significant difficulty or must initiate the interactive process when “reasonable medical documentation” from expense” when considered in light of several any of the following conditions occur.18 a health care provider that confirms the factors: the nature and cost of the accom- A disabled applicant or employee re - existence of the disability and the need for modation; the employer’s ability to pay quests reasonable accommodations. Im - accommodation.20 In this instance, the for the accommodation; the type of oper- port antly, an attorney need not mention employer may require documentation that ations conducted at the facility; the impact the words “reasonable accommodation” contains the name and credentials of the on the operations of the facility; the number when making a request. Any plain English attorney’s health care provider, a statement of employees and the relationship of the request will suffice. For example, an asso- that the attorney has a physical or mental employees’ duties to one another; the num- ciate attorney might tell a partner at the condition that limits a major life activity, ber, type, and location of the employer’s firm that his or her migraines are making and a description of why the attorney needs facilities; and the geographic, administra- it difficult to complete tasks on time, that a reasonable accommodation.21 tive, and financial relationship of the facil- walking from the office to the courthouse The attorney must then cooperate “in ities to one another.12 is difficult due to a leg injury, or that he or good faith” and provide the document - While the cost of an accommodation she cannot sit at the office desk for long ation.22 If an attorney provides insufficient and an employer’s ability to pay for it are stretches of time due to back pain flaring documentation in response to the em ployer’s factors used to assess undue hardship, the up. Each of these would constitute a request initial request, the employer must explain determination cannot be made by making for reasonable accommodation, triggering why the documentation is insufficient and a cost-benefit analysis.13 For example, if the employer’s duty to initiate the interactive give the attorney an opportunity to provide an organization’s only in-house intellectual process. supplemental information in a timely man- property attorney with significant experi- The employer becomes aware of the ner from his or her health care provider.23 ence and expertise requires two months need for an accommodation through a Importantly, all such medical information off as a reasonable accommodation to re - third party or by observation. Even if an and records obtained during the interactive cover from back surgery, and his or her attorney does not say he or she is disabled process must be maintained in a medical caseload cannot be handled by the orga- or request an accommodation, the employer file separate from the attorney’s personnel nization’s other attorneys, the company must nonetheless initiate the interactive file, and must be kept confidential.24 might engage a legal staffing agency that process if the employer learns of the need Accommodations for Attorneys places highly specialized attorneys in-house for an accommodation. For example, if an on a temporary basis. Granting the leave in-house attorney’s spouse calls the attor- An employer is required to consider any would not be an undue hardship if the ney’s boss to advise that the attorney was and all reasonable accommodations of firm has the financial ability to hire a qual- rushed to the hospital due to a heart con- which it is aware or that are brought to ified temporary attorney through the dition requiring surgery or an attorney is its attention, except for those that create staffing agency, even if the cost of doing observed coming into the office in a wheel- an undue hardship.25 Thus, the employer so will be more than what the company chair with his or her arm in a cast, either should consider all potential accommod - would have paid to the disabled attorney scenario would trigger the employer’s duty ations and assess their effectiveness in for the same period of time. This is because to start the interactive process. enabling an attorney to perform the essen-

22 Los Angeles Lawyer March 2018 MCLE Test No. 276 MCLE Answer Sheet #276 ACCOMMODATING ATTORNEYS The Los Angeles County Bar Association certifies that this activity has been approved for Minimum Continuing Legal Education credit by the 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. Disability discrimination was the most reported file separate from the attorney’s personnel file. Address employment-based discrimination claim made to the True California Department of Fair Employment and Housing False City in 2016. 12. The FEHA regulations provide an exhaustive list State/Zip True of all possible types of reasonable accommodations E-mail False an employer must consider. Phone 2. Disability discrimination was the third most reported True State Bar # employment-based discrimination claim made to the False Equal Employment Opportunity Commission (EEOC) in 13. An employer may not require an attorney to take a INSTRUCTIONS FOR OBTAINING MCLE CREDITS California in 2017. leave of absence as an accommodation if other rea- True 1. Study the MCLE article in this issue. sonable accommodations are available. False 2. Answer the test questions opposite by marking True the appropriate boxes below. Each question 3. The California Fair Employment and Housing Act False has only one answer. Photocopies of this (FEHA) applies to employers only if they have 10 or answer sheet may be submitted; however, this 14. Providing a reduced schedule may be a reasonable more employees. form should not be enlarged or reduced. accommodation. True 3. Mail the answer sheet and the $20 testing fee True False ($25 for non-LACBA members) to: False 4. An “interactive process” consists of a dialogue Los Angeles Lawyer 15. An employer is never required to allow an attorney MCLE Test between an employer and employee to assist the to bring an animal that provides emotional support P.O. Box 55020 employer in selecting an appropriate reasonable accom- into the workplace as a form of reasonable accommo- Los Angeles, CA 90055 modation. dation. Make checks payable to Los Angeles Lawyer. True True False 4. Within six weeks, Los Angeles Lawyer will False return your test with the correct answers, a 5. An employer has no obligation to provide a reason- rationale for the correct answers, and a 16. Permitting a disabled attorney to work from home able accommodation to an employee if doing so would certificate verifying the MCLE credit you earned for a short duration may be a reasonable accommo- through this self-study activity. cause undue hardship. dation. True 5. For future reference, please retain the MCLE True test materials returned to you. False False 6. An employer’s duty with respect to disabled indi- ANSWERS 17. An employer does not have to reassign a disabled viduals encompasses two distinct yet related obliga- Mark your answers to the test by checking the attorney to a different supervisor as a reasonable tions: to make “reasonable accommodation” and to appropriate boxes below. Each question has only accommodation if the current supervisor causes the one answer. engage in a “communicative dialogue.” attorney to experience stress. True True False 1. n True n False False 2. n True n False 7. An undue hardship determination may be based 18. An employer is not required to provide an indefinite on a cost-benefit analysis. 3. n True n False leave of absence as a reasonable accommodation. True 4. n True n False True False False 5. n True n False 8. Employers should be cautious when denying an 6. n True n False 19. An employer has no obligation to provide any accommodation based on undue hardship because it further reasonable accommodation once the attorney 7. n True n False is a high bar to meet. is no longer disabled. 8. n True n False True True False 9. n True n False False 10. n True n False 9. An employer is required to engage in an interactive 20. The EEOC has taken the position that a law firm process only if an employee specifically requests an 11. n True n False has no obligation to lower its billable hours requirement accommodation. 12. n True n False as a form of reasonable accommodation for a disabled True attorney. 13. n True n False False True 14. n True n False 10. An employer may require an employee to provide False 15. n True n False medical documentation as part of the interactive 16. n True n False process. True 17. n True n False False 18. n True n False 11. All medical information and records obtained during 19. n True n False the interactive process must be maintained in a medical 20. n True n False

Los Angeles Lawyer March 2018 23 tial job functions.26 Although an employer secondary office, allowing the attorney to visor’s standard oversight of the em ployee’s is required to consider an employee’s pre- work at the closer office on the days he or job performance does not constitute a dis- ferred accommodation, it has the ultimate she has physical therapy appointments may ability under the FEHA.29 discretion to choose among effective accom- be a reasonable accommodation. Permitting a disabled attorney to work modations, and may choose the less expen- Providing assistive aids and services. from home. For many attorneys, much of sive accommodation or the accommodation For attorneys who are blind or have vision their work involves using a computer and that is easier for it to provide.27 loss, their employer might provide a qual- communicating via phone and e-mail, FEHA regulations provide a nonexhaus- ified reader or a computer screen-reading which usually can be performed any- tive list of examples of the different kinds program. For those who are deaf or have where with an Internet and phone con- of accommodations that employers may hearing loss, the employer might provide nection. Permitting these attorneys to work from home for a short duration may be a reasonable accommodation, depending on the circumstances. How - ever, if an attorney’s essential job func- tions include collaborating closely with other attorneys in the office and super- vising filings, permitting a telecommuting arrangement may not be reasonable. FEHA regulations provide that employ- ers may also be required to provide rea- sonable accommodation for the “residual effects of a disability.”30 For example, an attorney may need a schedule change to permit him or her to attend follow-up appointments with a health care provider. Leaves of Absence If an attorney cannot perform the essential job functions or otherwise needs time away from the job for treatment and recovery, provide to employees in general, irrespective a qualified notetaker or sign language inter- holding the position open so the attorney of industry or the type of work performed.28 preter, or use real-time captioning technol- may take a leave of absence may be a rea- Attorneys with disabilities often require rea- ogy (a service similar to court reporting in sonable accommodation. Similarly, pro- sonable accommodations similar to those which a transcriber types what is being viding an attorney leave on an intermittent required by employees in other business said at a meeting or event into a computer or reduced-schedule basis to obtain plan - environments. However, law firms and other that projects the words onto a screen). ned medical treatment may also be a rea- legal employers may face unique challenges Job restructuring. This method may sonable accommodation.31 Employers are when providing reasonable accommodation include reallocation or redistribution of not re quired to provide paid leave, but they to their attorneys, taking into account factors an attorney’s nonessential job functions. may elect to do so. If the attorney can work such as billable-hour requirements, demand- For example, a litigator’s essential job func- with a reasonable accommodation other ing caseloads, and the ability to work under tions may entail legal research, drafting than a leave of absence, the employer can- pressure. briefs, and taking depositions, and non - not require the attorney to go on leave.32 Following are various examples of rea- essential job functions may include enter- Importantly, an employer is not required sonable accommodations that may be pro- taining clients, updating the firm’s legal to provide an indefinite leave of absence vided to attorneys with disabilities. blog, and serving on the firm’s hiring com- as a reasonable accommodation, meaning Making existing facilities readily acces- mittee. Temporarily reassigning these non - an employer need not provide an open- sible to and usable by disabled attorneys. essential functions to another attorney may ended leave with no return date.33 This may include providing accessible office be a reasonable accommodation. In determining the amount of time off space, break rooms, and restrooms, acquir- Modifying supervisory methods. An to provide, if any, the employer may ing or modifying furniture, equipment, or employer may need to modify the ways in consider factors such as the size of the devices, or making other similar adjust- which it exercises supervisory oversight of employer’s organization, how busy the ments in the work environment. For exam- an attorney’s performance as a reasonable attorney’s practice is, and whether the ple, a firm may need to provide an attorney accommodation. For example, for an attor- attorney’s workload can be distributed to with a wheelchair-accessible desk and ney with a learning disability, this might other attorneys at the firm without bur- arrange furniture in the office to clear a mean that instead of requiring that a brief dening their workloads. For example, a path so that the attorney can easily maneu- be completed by a certain date, the super- large law firm with attorneys in multiple ver about in a wheelchair. vising attorney may set different deadlines offices may be better able to provide a Transferring an attorney to a more for completing the fact, law, and analysis four-month leave of absence as a reasonable accessible office building. If a law firm has sections, or using daily, weekly, and monthly accommodation than a small firm with more than one office location, temporarily task lists. Modi fying supervisory methods just five attorneys. Because there are no transferring an attorney to a different office does not require assigning an attorney to a bright-line rules in the statutes or case law may be a reasonable accommodation. For new supervising attorney. An em ployee’s as to how much leave, if any, should be example, if an attorney has weekly physical inability to work for a particular supervisor provided, this is a heavily litigated area in therapy appointments near his or her firm’s due to anxiety or stress related to the super- failure-to-accommodate cases. Therefore,

24 Los Angeles Lawyer March 2018 it is important that employers carefully in place for handling accommodation (E.D. Cal. 2015). 15 Id. document their analysis when determining requests and that confirm the employer’s 16 EEOC v. Abercrombie & Fitch Stores, Inc., 966 F. the appropriate amount of time off to pro- commitment to nondiscrimination and pro- Supp. 2d 949, 962 (N.D. Cal. 2013). vide and its impact on the employer’s busi- viding reasonable accommodation. Em- 17 Id. ness operations. ployers can also ensure that their attorneys 18 CAL. CODE REGS. tit. 2, §11069(b). and other employees receive proper training 19 The Family and Medical Leave Act (FMLA) and anal- Billable-Hour Requirements ogous California Family Rights Act (CFRA) provide up on the interactive process and reasonable to 12 weeks of unpaid leave per year to employees who Like the ADA, the FEHA regulations pro- accommodation requirements. n meet certain eligibility requirements and who work for vide that where a quality or quantity stan- employers with 50 or more employees. An employer’s dard is an essential job function, an em- 1 U.S. Equal Emp. Opportunity Comm’n, EEOC Charge obligation to provide reasonable accommodation exists ployer is not required to lower the standard Receipts by State (includes U.S. Territories) and Basis independently of its duty to comply with the FMLA, as an accommodation, but may need to for 2016, available at https://www1.eeoc.gov/eeoc/sta- CFRA, and other leave laws. 20 CAL. CODE REGS. tit. 2, §11069(c)(2). accommodate an employee with a disability tistics/enforcement/state_17.cfm. 2 California Dep’t of Fair Emp. and Housing, 2016 21 CAL. CODE REGS. tit. 2, §11069(d)(5)(A),(B). to enable him or her to meet its quality or Annual Report (2017). 22 CAL. CODE REGS. tit. 2, §11069(d). 34 quantity standards. The EEOC has taken 3 42 U.S.C. §§12101 et seq. 23 CAL. CODE REGS. tit. 2, §11069(d)(5)(C). 24 the position, with respect to the ADA, that 4 GOV’T CODE §§12900 et seq. CAL. CODE REGS. tit. 2, §11069(g). “a law firm may require attorneys with 5 42 U.S.C. §12112(b)(5)(A). 25 CAL. CODE REGS. tit. 2, §11068(e). 26 6 GOV’T CODE §12940(m). CAL. CODE REGS. tit. 2, §11069(c)(7). disabilities to produce the same number of 27 7 42 U.S.C. §12111(5)(A); GOV’T CODE §12926(d). CAL. CODE REGS. tit. 2, §11069(c)(8); Hanson v. billable hours as it requires all similarly 8 CAL. CODE REGS. tit. 2, §11068(a). Lucky Stores, Inc., 74 Cal. App. 4th 215, 228 (1999). situated attorneys without disabilities to 9 Nealy v. City of Santa Monica, 234 Cal. App. 4th 28 CAL. CODE REGS. tit. 2, §11065(p). 29 produce. Reasonable accommodation may 359, 373 (2015); CAL. CODE REGS. tit. 2, §11065(p). Higgins-Williams v. Sutter Medical Found., 237 Cal. be needed to assist an attorney to meet the 10 GOV’T CODE §12940(n); CAL. CODE REGS. tit. 2, App. 4th 78, 84-85 (2015). §11069(a). 30 CAL. CODE REGS. tit. 2, §11068(g). billable-hour requirement, but it would not 31 11 GOV’T CODE §12940(m). CAL. CODE REGS. tit. 2, §11069(d)(9). be a form of reasonable accommodation 32 12 GOV’T CODE §12926(u). The Job Accommodation CAL. CODE REGS. tit. 2, §11068(c). to exempt an attorney from this require- Net work (JAN) provides cost information for reasonable 33 CAL. CODE REGS. tit. 2, §11068(c). ment.”35 Thus, under the ADA and FEHA, ac commodations at http://askjan.org/links/faqs.htm 34 CAL. CODE REGS. tit. 2, §11068(b). a law firm’s billable-hour requirement may and http://askjan.org/media/LowCostHighImpact 35 EEOC, Reasonable Accommodations for Attorneys be an essential job function tied to a quan- .doc. The Cal if ornia Department of Rehabilitation, at with Disabilities (2011), available at https://www.eeoc.gov www.dor.ca.gov, offers programs that may offset the /facts/accommodations-attorneys.html; see also, Dziamba tity standard, and a firm would have no costs of accommodations. v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, obligation to reduce or waive its billable- 13 U.S. Equal Emp. Opportunity Comm’n, Enforcement 405-406 (2002) (lawyer who could not meet law firm’s hour requirement as an accommodation. Guid ance: Reasonable Accommodation and Undue Hards - minimum billable hours requirement would not be per- However, a law firm may not penalize hip Under the Americans with Disabilities Act (2002), #45. forming an essential function of position). 36 an attorney for failing to meet its billable- 14 EEOC v. Placer ARC, 114 F.Supp.3d 1048, 1058 Id. hour requirement if the firm has granted the attorney leave as an accommodation and the attorney’s failure to meet the hours GL Howard and Company CPAS, LLP requirement is due to taking the leave. The EEOC has advised that penalizing an attor- ney in such instance would amount to retal- iation for the attorney’s use of a reasonable EFFECTIVE accommodation, would violate the ADA, SUPPORT FOR and would render the leave an ineffective accommodation.36 An employer should WHITE COLLAR also exercise caution if it plans to give an ISSUES attorney an unsatisfactory performance review when the attorney was out on leave for a significant portion of the review 562.431.9844 • www.glhowardandcompanycpas.com period. Otherwise, it may violate the ADA and FEHA, and amount to retaliation. Instead, the employer should delay the eval- uation for several months until after the attorney has resumed a normal workload, thus enabling the firm to conduct a more accurate review of the attorney’s work. Attorneys with disabilities may require a range of accommodations to perform the essential functions of their jobs. Legal employers can take a number of steps to create a climate in which their attorneys feel comfortable requesting an accommo- dation and to ensure that attorneys and managers are aware of their legal obliga- tions. At a minimum, employers should have clear, written policies and procedures

Los Angeles Lawyer March 2018 25 by Lisa R. Pruitt and Rebecca H. Williams JUSTICE

While Southern California can boast well over 100,000 attorneys, a mere 1,500, about 1 percent, serve its rural inhabitants

Californians think “rural,” their Fewer than 1,500 attorneys (barely above 1 percent) work in the WHEN initial association is probably region’s rural zones. The ratio of attorneys to urban residents is the Great Central Valley—the 1 to 188, while each rural lawyer serves nearly four times as food basket for the state and, indeed, the nation. Southern many residents, or 1 to 704. California, on the other hand, evokes images of urban enclaves Some three million people—more than eight percent of like Hollywood and Beverly Hills, the sprawling suburbs of the California’s population—live in rural areas and small towns.2 Like San Fernando Valley, and, for the wider region, the beach life. their urban counterparts, rural Californians often struggle for Rural communities, however, are scattered throughout California, access to affordable and safe housing, steady and fair employment, including the state’s southern third. All Southern California coun- adequate healthcare, immigration advice, educational opportunities, ties—Los Angeles, Orange, San Diego, Imperial, Riverside, San and public assistance.3 While these challenges are not unique to Bernardino, Ventura, and Santa Barbara—are considered met- rural places, the demographic characteristics associated with rural ropolitan, signifying a county population of 100,000 or more.1 communities (e.g., less educated, older, higher rates of disability) Yet many of these counties—especially in the Inland Empire— and their geographic features (sparse populations and small pop- are massive in terms of land area and include significant pockets ulation clusters, sometimes isolated from metropolitan areas by of rurality. mountains and deserts) are often barriers to legal service delivery. Although Southern California is home to 113,023 attorneys, Relatively few lawyers serve rural Calif ornians, and the California nearly 99 percent (111,545) of them practice in urban areas. Commission on Access to Justice would like to see that change.

Lisa R. Pruitt is the Martin Luther King, Jr., Professor of Law at the University of California, Davis. She also serves as cochair of the Rural Task Force for the State Bar of California and is a member of the California Commission on Access to Justice. Rebecca H. Williams will graduate from the University of California, Davis, School of Law in May 2019. The authors wish to express gratitude to Michele Statz, Luz Herrera, and Lauren Sudeall Lucas for their comments. HADI FARAHANI

26 Los Angeles Lawyer March 2018

The commission seeks to raise urban percent of rural Americans did so;10 child then-chair of the commission, the report lawyers’ awareness of their rural counter- poverty rates were 19 percent and 22 per- recognizes that rural Californians confront parts. A key reason for doing so is that cent, respectively.11 California data for a wide range of legal issues, often without attorneys in places like Los Angeles are well 2008-12 reveal a similar disparity in pov - counsel.18 Indeed, rural Californians get situated to alleviate rural access-to-justice erty rates between urban and rural popu- the short end of legal aid funding, as illus- deficits throughout Southern California. lations. While California’s urban poverty trated by the fact that just $18.56 per poor rate was 17.5 percent in the wake of the person goes to serve those in rural counties, The Rural Socioeconomic Scene Great Recession,12 the rural poverty rate compared with a mean of $44.43 per poor While about one-sixth of Americans reside was 18.9 percent.13 Rural economies also person in the state’s seven most urban coun- in rural locations, rural America is home have been slower to rebound in the decade ties (including Los Angeles and Orange), to just 2 percent of small law practices.4 since the crisis.14 The rural population also and $26.43 in counties with mixed rural This imbalance aggravates the justice gap includes disproportionately high percent- and urban populations.19 Since the report’s along the rural-urban axis. In recent years, ages of veterans, the elderly, and people publication, the rural-urban funding gap and the ABA Journal living with disabilities—all highly vulner- has widened, with rural funding tumbling

Residents per Area in Square Attorneys per County Attorney Count Total Population Attorney Miles Square Mile

Imperial County 167 177,026 1,060.04 4,481.67 0.037

Los Angeles County 62,775 9,969,234 158.81 4,546.65 13.807

Orange County 19,406 3,086,331 159.04 811.91 23.902

Riverside County 3,928 2,266,899 577.11 7,303.05 0.538

San Bernardino County 2,756 2,078,586 754.20 20,105.13 0.137

San Diego County 18,856 3,183,143 168.81 4,271.01 4.415

Santa Barbara County 1,876 431,555 230.04 2,860.11 0.656

Ventura County 3,233 835,790 258.52 1,868.12 1.731

Total for Southern California 112,997 22,028,564 194.95 46,247.65 2.443 have featured front-page stories on this able populations with distinct legal needs.15 to $14.72 per poor resident and urban fund- increasingly acute phenomenon.5 Several In part because of these vulnerabilities, ing rising to $47.23, nearly three times the states have begun to probe the details of many rural Americans need legal advice rural rate.20 their rural lawyer shortages6 and to develop to secure state and federal benefits to which The report also enumerated some of strategies for ameliorating these rural they are entitled.16 The same is true, of the challenges that rural Californians dis- deficits. Most notably, in 2013, South course, for rural Californians, including proportionately face. Rural residents are Dakota became the first state to pay attor- those in Southern California. Although a more likely to live in manufactured and/or neys annual stipends for moving to and higher percentage of rural Californians live temporary housing,21 either of which is practicing in underserved rural counties.7 in poverty, a lower percentage of them more often characterized by living condi- A shortage of attorneys is hardly the receive government aid, such as Temporary tions that violate housing and safety code only challenge facing rural residents. A Assistance to Needy Families.17 This mis- regulations.22 Rural residents are also more recent Wall Street Journal article ran the match may be due to lack of legal assistance likely to experience home foreclosure with- startling headline, “Rural America is the in securing such benefits, suggesting just out proper legal counsel.23 New ‘Inner City,’” replete with charts illus- one type of rural legal need that too often Like their urban counterparts, workers trating how rural places now lag behind goes unmet. in rural areas need legal counsel when they even center cities (never mind suburbs and experience labor violations. In particular, Improving Rural Civil Justice small cities) in numerous measures of well- rural California is home to hundreds of being, e.g., percentage of adults with college Concerns about rural access to justice have thousands of agricultural workers, a sig- degrees, percentage of males 16 and older held the attention of the California Com - nificant percentage of whom live in rural with jobs, teen pregnancy, and mortality mission on Access to Justice for some time, areas.24 Many seasonal laborers in the food caused by cardiovascular disease, cancer, and in 2010, the commission published a and agriculture industry, for instance, are and chronic lung disease.8 pathbreaking report, Improving Civil Justice unaware of their rights or are unable to Thus, it should come as no surprise that in Rural California. The 76-page document enforce them without legal assistance.25 rural poverty rates exceed those in urban has become a national standard-bearer on Often undocumented, these individuals are areas, and this has been the case for rural access issues. Compiled and published especially vulnerable to exploitative and decades.9 While 13 percent of urban under the leadership of Justice Ronald B. substandard working and housing condi- Americans lived in poverty in 2015, 16.7 Robie, Third District Court of Appeals and tions.26 These workers are also less likely

28 Los Angeles Lawyer March 2018 to ask for legal assistance due to language the problem has not been analyzed until about 23 million people living within an barriers or out of fear for what will happen recently.33 An ex officio member of the area that spans almost 49,000 square miles. if they disclose their immigration status.27 California Commission on Access to Justice, More than 95 percent of Southern Cali - Rural communities are almost by defi- Professor Emeritus James W. Meeker of fornia residents live in areas categorized nition geographically isolated from popu- the School of Social Ecology at UC Irvine,34 as urban under the MSSA scheme, while lation centers and services offered there. and his students, Xiyue Wang and Carrie less than five percent reside in rural and The dearth of public transportation in rural Reiling, analyzed California’s 2016 attorney frontier areas. The distribution of attorneys, places can render burdensome, if not pro- address data utilizing the concept of Medi- however, is even more lopsided. As noted hibitive, travel to and from institutions cal Service Study Areas (MSSAs) to differ- above, Southern California is home to more that provide all sorts of services—including entiate points along the rural-to-urban con- than 113,000 attorneys, of whom just one health care, social services, and legal assis- tinuum. The MSSAs are clusters of census percent practice in rural and frontier areas. tance.28 Lack of accessible legal advice tracts.35 The MSSA taxonomy divides states The distribution of attorneys in relation means vulnerable populations may be less into subcounty geographical units, which to population and poverty rates is depicted able to get other services, avoid consumer are then categorized as “urban,” “rural,” in the table on page 28.

fraud, and maintain their independence.29 or “frontier.” Urban MSSAs have a popu- The spatial impediments to accessing Aggravating this lack of face-to-face lation ranging from 75,000 to 125,000, legal assistance are even more dramatic access is the fact that rural folks are also reflect recognized community and neigh- when one considers the vastly greater land less likely than urban residents to have ac - borhood boundaries, and have similar area that rural and frontier attorneys in cess to technology, including cell phones, demographic and socioeconomic charac- Southern California must cover. Just over computers, and Internet access—especi - teristics.36 Rural MSSAs have a population 17 percent of Southern California’s land ally broadband.30 Only 58 percent of rural density of fewer than 250 persons per area (8,049 square miles) is “urban,” as Californians have Internet access, com - square mile with no population center defined by the MSSA scheme. By contrast, pared with 63 percent of their urban count - exceeding 50,000, and “frontier” MSSAs around 36 percent (17,775 square miles) er parts.31 These deficits in technology have a population density of fewer than is categorized as rural, and more than 47 infrastructure impede access to self-help 11 persons per square mile.37 percent (22,945 square miles) is frontier. re sources, educational materials, and gov- Using these simple categories to exam- Because plentiful urban attorneys are con- ernment websites.32 ine closely eight Southern California coun- centrated within a relatively small area, ties reveals the stark disparity between the Southern California’s urban areas average Attorney Availability number of lawyers practicing in the region’s a robust 13 attorneys per square mile. While anecdotal evidence has for some urban centers and those in rural and fron- Rural areas, however, average one attorney time suggested a shortage of attorneys in tier areas. MSSA data for the entire region for every 7.25 square miles, and frontier California’s rural areas, data quantifying from 2010 reveals a total population of areas average one attorney for every 373

Los Angeles Lawyer March 2018 29 square miles. Thus, residents of rural and largest city and county seat, El Centro. Just While Southern California’s inland frontier areas in Southern California are 20 attorneys practice in the other four counties account for the majority of the grossly underserved. The map on page 29 Imperial County MSSAs combined, though region’s rural land area, the rural attorney illustrates this phenomenon. Every red dot they are collectively home to more than shortage is also evident in coastal areas. represents an attorney, and each yellow half of the county’s population. For residents Among Southern California’s coastal coun- dot is a county seat. The lighter the back- living outside the county seat, traveling to ties, all but one—the entirely urban Orange ground, the lower the population density. the nearest attorney is, at best, an incon- County—feature rural or frontier MSSAs When viewed on a county-by-county venience.42 Those who are undocumented in which attorneys are in short supply. With abundant data detailing rural justice deficits in Southern California, Los Angeles attorneys and firms looking for pro bono opportunities need look no further than the rural communities in their own backyards. basis, Meeker’s data spotlight particular will face additional challenges. Due to its Even Los Angeles County—home to Cali - regions of Southern California in which proximity to the Mexico-U.S. border, border fornia’s most populous city and the second the rural attorney shortage is most acute. patrol agents and checkpoints pepper the most populous in the nation—has the For example, in Imperial County, there are main thoroughfares to and from El Centro.43 second largest rural population among several socioeconomic and demographic Other Inland Empire counties also pre- South ern California counties, with nearly factors that create a particularly great need sent significant access-to-justice concerns. 200,000 rural residents.47 for accessible and affordable legal assis- San Bernardino County is the largest county Call to Action tance. Imperial County is by far the most in the contiguous United States with a land- rural Southern California county, with no mass greater than Rhode Island, New Jer - As the data indicate, Southern California urban MSSAs. The county’s population is sey, Delaware, and Connecticut com- is not without some distinctly rural access- more than 80 percent Hispanic, its economy bined.44 It stretches from the city of San to-justice challenges. Some of these arise, is largely agricultural, and many of its res- Bernardino to the Nevada border, encom- in part, from the dramatically uneven dis- idents are migrant workers.38 Because agri- passing a significant portion of the San tribution of lawyers across the region. cultural labor is highly seasonal, Imperial Bernardino Mountains and Mojave Desert. While rural residents would doubtless ben- County has one of the highest unemploy- It also includes, by far, the greatest amount efit from attorneys who live and work in ment rates in the nation—about 20 per - of rural territory among all Southern Cal - their communities,48 an important short- cent.39 Imperial County also has the highest ifornia counties: nearly 20,000 square to-midterm strategy is to take advantage percentage of rural poor among the eight miles—96 percent of the county—are rural of existing urban resources, channeling Southern California counties examined. or frontier.45 Such geographic vastness pre- some of those resources to the region’s Nearly one in four residents live below the sents significant logistical, transportation, rural pockets. As a starting point, Los poverty line.40 Additionally, residents of and financial challenges for those living in Angeles lawyers can help ameliorate rural Imperial County are geo-physically isolated the county’s far-flung reaches. deficits by doing pro bono work in rural from the rest of Southern California. The Only 255 attorneys work in rural parts communities. The American Bar Associ - county is bordered by mountain ranges to of San Bernardino County, and seven of ation strongly encourages pro bono work, the north and west, desert (and a different the county’s 26 MSSAs have fewer than recommending that lawyers provide at least jurisdiction, Arizona) to the east, and Mex- 10 attorneys each. The situation is further 50 hours of pro bono legal services per ico to the south.41 aggravated by the concentration of the year to “persons of limited means” or to county’s attorneys in the southwest corner “charitable, religious, civic, community, Unmet Need of San Bernardino County, where most governmental and educational organiza- These circumstances suggest a great unmet urban MSSAs are located. Traveling to tions” that serve those of modest means.49 need in Imperial County, in which just 167 meet a lawyer is a particular burden on With abundant data detailing rural jus- lawyers practice. (These attorney data fig- the 21 percent of San Bernardino County’s tice deficits in Southern California, Los ures include not only attorneys in private rural and frontier residents who live near Angeles attorneys and firms looking for practice or otherwise accepting clients but or below the poverty line.46 pro bono opportunities need look no fur- also include judges, prosecutors, public San Bernardino County’s neighbor to ther than the rural communities in their defenders and others employed by public the south, Riverside County, has a smaller own backyards. Indeed, the opportunity agencies.) With the fewest attorneys among rural land area (5,778 square miles), as to serve rural clients should appeal to urban all Southern California counties, Imperial well as a smaller rural population (73,659). lawyers. UCLA law professor Richard L. County has a very poor attorney-to-resident However, Riverside County also has the Abel has observed that “[l]awyers prefer ratio: each attorney serves an average of fewest rural attorneys—just 65—among to do pro-bono far removed from their 1,060 residents. Compounding matters, the all Southern California counties. As a re - paying work, substantively and often geo- vast majority of Imperial County attor- sult, the average rural Riverside County graphically, partly to avoid conflict of inter- neys—147 of them (88 percent)—are clus- attorney serves 1,133 residents and nearly est (actual and positional), and partly for tered within a single MSSA, the county’s 90 square miles. the sake of novelty.”50 Rural Southern

30 Los Angeles Lawyer March 2018 California features an abundance of the with expertise in immigration law to video farmworkers, Native American, and family novelty factor for Los Angeles attorneys trainings attorneys can view online, at their law.”73 That training prepares students for willing to step outside their metropolitan convenience.63 While the program is cur- summer placements with civil legal aid comfort zones. rently limited to the Central Valley, One - organizations in rural locales across the Urban bar associations can encourage Justice aims to use data from Rural Immi - United States.74 Law schools can also play attorneys to fulfill their pro bono responsi- grant Connect to create a model that can a critical role with their loan repayment bilities, at least in part, by serving rural be replicated across the United States.64 It assistance programs. When law schools clients.51 Attorneys and firms based in met- is easy to imagine a similar program con- provide this sort of fiscal support, qualifying ropolitan areas can jump-start their rural necting Los Angeles attorneys with immi- law graduates have fewer financial worries pro bono efforts by partnering with rural grants in the Imperial Valley and other about the potential precariousness of rural bar associations and nonprofits serving rural rural pockets of Southern California. practice, and all who desire to make careers communities.52 Such collaborations can doing public interest work—which should California Rural Legal Assistance effectively leverage the vast resources of the include private practice in under-served urban bar with the cultural know-how of California Rural Legal Assistance (CRLA) rural locales—are more likely to realize rural practitioners and organizations. 53 is another organization that has built rela- that goal.75 Another way rural communities can tionships with urban law firms to facilitate Finally, the report, Improving Civil capitalize on urban resources is to use tech- the provision of pro bono services to rural Justice in Rural California, recommends nology in innovative ways that connect populations. CRLA has more than 20 that rural areas ramp up recruitment and rural clients with those resources. In addi- offices and 50 staff attorneys, but it covers re tention efforts for both novice and expe- tion to using online resources for legal aid, thousands of square miles of rural, agri- rienced attorneys.76 Law schools can assist rural clients could also connect to urban cultural California.65 The organization fos- in this effort by collaborating with or spon- lawyers via video conferencing, phone calls, ters partnerships with large urban firms soring attorney incubator programs to pre- e-filing, faxing, e-mail, or other electronic whose attorneys can volunteer in rural field pare new attorneys for rural practice.77 means.54 Clients benefit when they avoid offices, take client referrals, offer clinics, Incu b ator programs, which have proved the cost of unnecessary travel.55 or advise CRLA staff at torneys.66 One such very successful in Los Angeles,78 Orange OneJustice is an example of an organi- law firm, for example, worked with CRLA County,79 and San Diego, 80 provide new zation that literally drives urban attorneys in 2015 in “challenging an Imperial Valley law school graduates with practical legal to meet the legal needs of rural communities. School district’s discriminatory discipline experience and knowledge of how to man- Through its Justice Bus Project, OneJustice practices, working to end the criminaliza- age a law practice.81 Such programs could transports attorney and law student volun- tion of homelessness in the town of Man - productively target those open to serving teers from urban Los Angeles, San Diego, teca, and representing a trafficking victim Southern California’s rural areas, and they and Orange County to rural areas in South - with an immigration matter.”67 The col- could tailor curricula to rural practice. ern California.56 Volunteers typically partner laboration allowed the firm’s attorneys to Because incubators focus on equipping with local legal aid organizations to staff benefit from working on unique cases for lawyers to market themselves to and serve free legal clinics and offer counseling on a inspirational clients, and CRLA clients ben- low-income and modest-means clients, they variety of issues tailored to the communities’ efitted from the firm’s experience in liti- produce the sort of truly practice-ready needs.57 Since its inception, the Justice Bus gating complex legal matters.68 professionals rural areas so desperately Project has brought almost 2,000 volunteers Southern California law schools in Los need.82 into rural and underserved areas, providing Angeles and beyond can also play critical The 2010 report recognized that filling legal services to more than 5,000 low- roles in meeting the needs of rural com- the gaps in rural access to justice will re - income Calif ornians.58 munities. A great starting point is to in - quire simultaneous implementation of a OneJustice also harnesses the power of crease student awareness of the extensive range of strategies, including a coordinated technology and the local expertise of rural career and public interest opportunities in effort among key stakeholders. These stake- community organizations to connect urban rural communities.69 Law schools can pique holders include legal aid providers, self- attorneys with rural immigrants via Rural student interest in rural practice by offering help centers, local bar associations, county Immigrant Connect, an innovative project coursework relevant to rural legal issues law libraries, and rural community leaders, created out of a partnership between One - or incorporating rural perspectives into along with the legal education community Justice and Silicon Valley-based Fen wick classroom discussions.70 and key personnel in the judicial system.83 & West.59 The program enables Bay Area Schools should also encourage experi- The human capital and resources of Cali - and Silicon Valley attorneys to assist Central ential learning opportunities in rural com- f ornia’s rural communities, however, will American and Mexican immigrants living munities, whether through school-spon- not alone be sufficient to meet the growing in the rural Central Valley by pairing attor- sored clinics or independent summer legal needs of these communities. Urban neys from these urban law firms with rural programs.71 Students participating in the lawyers and resources will be necessary to immigrant clients.60 After an initial in-per- Community and Economic Development alleviate rural justice deficits. n son meeting, attorneys communicate with Clinic at the UC Irvine School of Law, for their clients primarily through videocon- example, had the opportunity to represent 1 CAL. EMP. DEV. DEP’T,CALIFORNIA COUNTIES AND ferencing.61 OneJustice facilitates this com- farmworkers living in a substandard mob - MET RO POL ITAN AREAS (Nov. 2015), http://www munication by placing laptops at rural ile-home park in Riverside County’s Coach - .labormarketinfo.edd.ca.gov/file/maps/Counties_Metr Areas.pdf. 72 community organizations in the Central ella Valley. The Legal Services Corpor - 2 Housing Assistance Council, Rural Data Portal, Valley, providing clients with easy access ation and Equal Justice Works sponsor http://www.ruraldataportal.org/ (roll cursor over and in-person technological support.62 Rural Summer Legal Corps, a program California on U.S. map) (last visited Sept. 6, 2017). The program provides both substantive offering law students “intensive training The HAC defines “rural” as “less than 16 housing and cultural competency training for pro from poverty law experts on housing, units per square mile (.025 housing units per acre) and “small town” as 16 to 64 housing units per square bono attorneys, from mentor attorneys domestic violence, public benefits, migrant

Los Angeles Lawyer March 2018 31 mile (.025 to 0.1 housing units per acre), and a low AND SEASONAL FARMWORKING HOUSING INFORMATION Delivery, https://www.lsc.gov (last visited Sept. 5, degree of commuting to a metropolitan core area. See SHEET (2003), available at http://www.ruralhome.org 2017). also CAL. COMM’N ON ACCESS TO JUSTICE, IMPROVING /storage/documents/farmworkers.pdf. 56 OneJustice, Our Programs, Pro Bono Justice, https:// CIVIL JUSTICE IN RURAL CALIFORNIA 6 (2010) [hereinafter 23 See RURAL JUSTICE, supra note 2, at 8. onejustice.org (last visited Aug. 20, 2017) [hereinafter RURAL JUSTICE], http://www.calbar.ca.gov/Portals/0 24 Geoffrey Mohan, To keep crops from rotting in the Pro Bono Justice]. /documents/accessJustice/CCAJ_2010__FINAL_2.pdf field, farmers say they need Trump to let in more tem- 57 See Legal Aid Ass’n of Cal., OneJustice Justice Bus ?ver=2017-05-19-133105-073 (reporting that, accord- porary workers, L.A. TIMES (May 25, 2017), http://www Project and Partners Provide Housing Legal Services ing to the 2000 U.S. Census, seven percent of Calif - .latimes.com. See Ilene J. Jacobs & Patrick Saldaña, in Indio Area (Oct. 1, 2013), http://laaconline.org/pub ornia’s population lived in rural California). Farmworker Homelessness in Imperial County, CA, 21 /14433/onejustice-justice-bus-project-partners-provide 3 RURAL JUSTICE, supra note 2, at 25-29. RURAL VOICES 14, 14-15 (2016), http://www.ruralhome -housing-legal-services-indio. 4 See Lisa R. Pruitt & Bradley E. Showman, Law .org/storage/documents/rural-voices/rvmarch 2016.pdf 58 Pro Bono Justice, supra note 56. Stretched Thin: Access to Justice in Rural America, (estimating that there are anywhere between 386,725 59 Renée Schomp, Bridging the Justice Gap with Tech- 59 S.D. L. Rev. 466, 469 (2014) [hereinafter Pruitt & and 1 million agricultural workers in CA, with between nology, ONEJUSTICE (June 16, 2016), https://onejustice Showman]. 5,501 and 8,000 in Imperial County alone). .org/2016/06/bridging-the-justice-gap-with-technology 5 Ethan Bronner, No Lawyer for Miles, So One Rural 25 See RURAL JUSTICE, supra note 2 at 8; see also Lisa [hereinafter Schomp]. State Offers Pay, N.Y. TIMES, Apr. 8, 2013, available R. Pruitt, The Rural Lawscape: Space Tames Law 60 Id. at http://www.nytimes.com; Lorelei Laird, In rural Tames Space, in THE EXPANDING SPACES OF LAW: A 61 Id. America, there are job opportunities and a need for TIMELY LEGAL GEOGRAPHY, Stanford U. Press (2014). 62 Id. lawyers, ABA JOURNAL, Oct. 1, 2014, available at 26 See RURAL JUSTICE, supra note 2, at 25-26. 63 ONEJUSTICE, RURAL IMMIGRANT CONNECT & THE PRO http://www.abajournal.com. 27 Id. BONO ATTORNEY, http://one-justice.org/clientimages 6 See, e.g., Lisa R. Pruitt, et al., Justice in the Hinter - 28 See Pruitt & Showman, supra note 4, at 485-87. /53135/rural%20immigrant%20connect_onejustice%20 lands: Arkansas as a Case Study for the Rural Lawyer 29 See RURAL JUSTICE, supra note 2, at 9. (pro%20bono%20attorney).pdf. (last visited Aug. 21, Shortage and Evidence-Based Solutions to Alleviate 30 Id. at 23. See also Jennifer Levitz and Valerie 2017). It, 37 U. ARK. LITTLE ROCK L. REV. 573 (2015); Bauerlein, Rural America is Stranded in the Dial-Up 64 See Schomp, supra note 59. Katheryn Hayes Tucker, GSU Access to Justice Center Age, WALL ST. J., (June 15, 2017), https://www.wsj.com. 65 See REPORT, supra note 53, at 7. Maps Rural Lawyer Gap, DAILY REPORT, Sept. 6, 31 RURAL JUSTICE, supra note 2, at 23. 66 California Rural Legal Assistance, Inc., Pro Bono 2017, http://www.dailyreportonline.com. 32 Id. Assistance, http://www.crla.org/pro-bono-assistance 7 See South Dakota Unified Judicial System, Programs 33See Pruitt & Showman, supra note 4, at 494. (last visited Aug. 20, 2017). &Services, Rural Attorney Recruitment Program, 34 Professor Emeritus of Criminology, Law and Society, 67 CALIFORNIA RURAL LEGAL ASSISTANCE, INC., CRLA http://ujs.sd.gov/Information/rarprogram.aspx (last Ph.D., J.D. 2015 ANNUAL REPORT: PATHS TO JUSTICE 16 (2015), avail - visited Sept. 4, 2017). 35 See Office of Statewide Health Planning and Dev., able at http://www.crla.org/sites/all/files/content 8 Janet Adamy and Paul Overberg, Rural America Is Medical Service Study Areas, https://oshpd.ca.gov /uploads/AnnualReports/CRLA-AR-181016.pdf. the New ‘Inner City,’ THE WALL ST. J., May 26, 2017, /MSSA (last visited July 20, 2017) [hereinafter Medical 68 Id. available at https://www.wsj.com. Service]. 69 See Amanda L. Kool & Lisa R. Pruitt, It’s Time to 9 See DAVID L. BROWN & KAI A. SCHAFFT, RURAL 36 Id. Heed the Call of Rural America, NAT’L L. J. 82 (May PEOPLE & COMMUNITIES IN THE 21ST CENTURY: RESILI - 37 Id. 1, 2017) [hereinafter Kool & Pruitt]; Christyne J. ENCE AND TRANSFORMATION 193-94 (2011). 38 Rob Chell, JFON on the Border: Imperial Valley Vachon & Robin Runge, Planting Seeds and Getting 10 U.S. CENSUS BUREAU, INCOME AND POVERTY IN THE JFON celebrates Grand Opening and First Clinic, into the Field: The Role of Law Schools in Ensuring UNITED STATES: 2015 6 (2016). IMPERIAL VALLEY JUSTICE FOR OUR NEIGHBORS, Mar. Access to Justice in Rural Communities, 59 S.D. L. 11 See RURAL JUSTICE, supra note 2, at 22. 15, 2017, http://www.jfoniv.org/news/2017/3/28 REV. 616 (2014). 12 The Rural Data Portal Report, Economic Data, 2013, /jfon-on-the-border-imperial-valley-jfon-celebrates 70 Kool & Pruitt, supra note 69. California: Rural & Small Town Areas, http://www -grand-opening-and-first-clinic. 71 Id. .ruraldataportal.org (Select “State,” select “California,” 39 Id. 72 Rina Palta, Coachella Valley Trailer Park with Sew - select “Rural,” select “Economic Data,” select “Indi - 40 U.S. Census Bureau, Quick Facts United States, age Problem to Get Overhaul, KPCC (Feb. 19, 2016), vidual Poverty Status,” select “Get Report”) https://www.census.gov (search “Imperial County”) http://www.scpr.org/news/2016/02/19/57762/sewage 13 Id., California: Urban Areas, http://www.ruraldataportal (last visited Sept. 5, 2017). -overflow-problem-in-coachella-trailer-park. .org (Select “State,” select “California,” select “Urban,” 41 See Chell, supra note 38. 73 Rural Summer Legal Corps Program, https:// select “Economic Data,” select “Individual Poverty 42 Id. rurallegalcorps.org (last visited Aug. 21, 2017). Status,” select “Get Report”). 43 Id. 74 Id. 14 See U.S. DEP’T AGRIC., RURAL AMERICA AT A GLANCE, 44 MARIA ABESA, ET AL., IMPROVING ACCESS TO JUSTICE 75 See Kool & Pruitt, supra note 69. 2016 edition, available at https://www.ers.usda.gov FOR SELF-REPRESENTED LITIGANTS IN SAN BERNARDINO 76 See RURAL JUSTICE, supra note 2, at 52. /webdocs/publications/80894/eib-162.pdf?v=42684. SELF-HELP CENTERS, UCLA LUSKIN SCHOOL OF PUBLIC 77 See Lisa Pruitt, et al., Legal Deserts: A Multi-State 15 See RURAL JUSTICE, supra note 2, at 28-29; see also AFFAIRS 10 (May 4, 2016), http://www.lewis.ucla Perspective on Rural Access to Justice, 12 HARV. L. Terrence McCoy, Disabled, or Just Desperate? Rural .edu/wp-content/uploads/sites/2/2016/09/2015-2016 & POL’Y REV. (forthcoming 2018). Americans Turn to Disability as Jobs Dry Up, WASH. _Abesa_Cordi_Kudo_APPSelf-Help_comp.pdf. 78 See Los Angeles Incubator Consortium, What is POST Mar. 30, 2017, available at http://www.wash- 45 According to the HAC, 98 percent of San Bernardino Los Angeles Incubator Consortium?, https://www ingtonpost.com; E. Helen Berry, The Seniors are County’s landmass is rural. RURAL JUSTICE, supra note 2. .laincubatorconsortium.com (last visited Sept. 9, 2017). Coming! Oh Wait, They’re Here, RURAL VOICES, Fall 46 See MEDICAL SERVICE, supra note 35. 79 See Lawyer Entrepreneur Assistance Program, 2013, at 8-10, available at http://www.ruralhome 47 U.S. CENSUS BUREAU, AMERICAN COMMUNITY SURVEY http://incubator.legal-aid.com (last visited Sept. 9, .org/storage/documents/rural-voices/rv-fall-2013.pdf. 2014. 2017). 16 See LEGAL SERVICES CORP., THE JUSTICE GAP: MEAS - 48 See Larry R. Spain, Public Interest Law: Improving 80 See California Western School of Law, Access to URING THE UNMET CIVIL LEGAL NEEDS OF LOW-IN COME Access to Justice: the Opportunities and Challenges Law Initiative, https://www.cwsl.edu/clinics-and AMERICANS 24 (2017), available at http://www.lsc of Providing Equal Access to Justice in Rural Com- -programs/access-to-law-initiative (last visited Sept. 9, .gov/sites/default/files/images/TheJusticeGap-FullReport munities, 28 WM. MITCHELL L. REV. 378 (2001). 2017); Thomas Jefferson School of Law, The Center .pdf; see also RURAL JUSTICE, supra note 2, at 9. 49 MODEL RULES OF PROF’L CONDUCT R. 6.1 (2014). for Solo Practitioners—A Lawyer Incubator Program, 17 William O’Hare & Kenneth Johnson, Child Poverty 50 Richard L. Abel, Just Law? in THE PARADOX OF http://www.tjsl.edu/tjsl-alumni/incubator-program (last in Rural America, 4 (1) REPORTS ON AMERICA 16, Mar. PROFESSIONALISM: LAWYERSANDTHE POSSIBILITYOF visited Sept. 9, 2017). 2004, available at http://www.prb.org/pdf04 JUSTICE 296, 307 (Scott L. Cummings ed., 2011). 81 INCUBATOR GUIDE: A PUBLICATION OF THE CAL. COMM’N /ChildPovertyRuralAmerica.pdf. 51 RURAL JUSTICE, supra note 2, at 55-56. ON ACCESS TO JUSTICE, 3 (2014), available at https://www 18 See RURAL JUSTICE, supra note 2, at 8-9. 52 See id. at 45. .calbar.ca.gov/Portals/0/documents/accessJustice/2014 19 Id. at 11, app. A. 53 LEGAL SERVICES CORP., REPORT OF THE PRO BONO %20Incubator%20Guide.pdf [hereinafter INCUBATOR 20 Letter from Cal. Comm’n on Access to Justice to TASK FORCE 6-7 (Oct. 2012), available at https://www GUIDE]. Legal Servs. Trust Fund Comm’rs (Oct.12, 2016) (on .lsc.gov [hereinafter REPORT]. 82 See Laura Dym Cohen, et al., Launching the Los file with authors). 54 See RURAL JUSTICE, supra note 2, at 54-56. Angeles Incubator Consortium,” 83 U. MO.-K.C. L. REV. 21 RURAL JUSTICE, supra note 2, at 8. 55 Id. at 54; see also Legal Servs. Corp., Access to 861 (2014); see also INCUBATOR GUIDE, supra note 81. 22 THE HOUSING ASSISTANCE COUNCIL (HAC), MIGRANT Justice in Rural Areas, Skype Clinic for Rural Service 83 INCUBATOR GUIDE, supra note 81, at 51-56.

32 Los Angeles Lawyer March 2018 by the book REVIEWED BY TYNA THALL ORREN

The Judge: 26 Machiavellian Lessons

The U.S. Supreme Court has become Congress, empowered the Supreme Court, and secured a lasting politicized—hardly a novel observa - legacy for himself and the cause of judicial supremacy” (p. 14). tion. Nevertheless, what does a politi- More recently, Justice William O. Douglas earns high Machia - cized Supreme Court mean for the rule vellian marks for Griswold v. Connecticut,2 in which he discovered of law? (or created) penumbral constitutional rights, and a bare majority In The Judge, Professors Ronald of the high court struck down Connecticut’s anticontraceptive K.L. Collins and David M. Skover take law as a violation of the penumbral right of privacy. The Judge the politicized-court observation fur- declares Griswold “a paradigmatic case…of unprincipled decision ther, suggesting the Supreme Court making” (p. 69). has always been political and, more At the other end of the political spectrum, Chief Justice broadly, that the law itself may be an William Rehnquist earns a place among Machiavellian exemplars unavoidably political institution. The for deconstitutionalizing the Earl Warren Court’s decision in Judge examines consequences of the Miranda v. Arizona.3 This Court unanimously ruled the warnings twin possibilities that the Supreme required by Miranda are constitutionally mandated safeguards The Judge: 26 Court is political and the law itself is against encroachments on the privilege against self-incrimination. Machiavellian Lessons politics. Using a kind of sly irony, it But in a series of decisions starting in 1974, majorities on the By Ronald K. L. Collins & draws, or lures, the reader into col- Burger and Rehnquist courts unyoked what they termed Miranda’s David M. Skover laborating in the examination. “prophylactic rules” from the Fifth Amendment privilege per $27.95, 296 pages Before one even opens The Judge, se.4 Dutifully reaffirming Miranda’s holding that a violation of Oxford University Press, 2017 its subtitle, 26 Machiavellian Lessons, its requirements is a constitutional violation, these decisions held hints at an ironic approach, seeming to promise a manual akin that a violation of the rules does not trigger all the consequences to The Prince—the treatise that made “Machiavellian” synony- triggered by a violation of the amendment itself. mous with “hypocritical,” “cynical,” and “unprincipled.” The The endpoint of that line of cases is Rehnquist’s majority authors are joking, right? They cannot seriously be proposing opinion in Dickerson v. United States. Dickerson offered a chance to counsel judges—judges sitting, or aspiring to sit, on our to overrule Miranda. But Rehnquist, although a foe of Miranda, nation’s highest court, no less—in Machiavellian arts. Can they? declined to do so, citing stare decisis. Privately, Rehnquist called Maybe. Through 26 “constructive provocations” (p. xxi) (cor- stare decisis “pretty much a sham” (p. 77). In Dickerson, though, responding to The Prince’s 26 chapters), The Judge professes to he reasoned that Miranda and its progeny were constitutional instruct judges, by example, in artifices that the high court’s decisions that could not lightly be discarded. He noted, however, leading lights might have applied, Machiavellian style, to magnify that the progeny had reduced Miranda’s impact. The Judge their own fame and enlarge their power. Some of the examples declares Dickerson a brilliantly Machiavellian maneuver. In it, and models are offered with manifest sarcasm, some with genuine Rehnquist effectively dismantled Miranda but avoided a frontal admiration, and some in between. It is in trying to make sense of attack on Miranda and, with it, on the doctrine of stare decisis. the ethical in-betweens that the reader is compelled, in The Judge’s By bowing to stare decisis, the Chief preserved his power over words, to “think…think hard” (p. xxii) about what it means, or the law’s future by preserving the protection the doctrine would would mean, if the law is, or might be, mere power politics. give his own decisions. The power wielded by a judge or justice is the ability to Justice Antonin Scalia dissented in Dickerson, predicting the shape the law to one’s liking. It is achieved by knowing how decision would delight “[t]hose to whom judicial decisions are best to have one’s decisions honored. The most honored decision an unconnected series of judgments that produce either favored in American law may be Marbury v. Madison,1 a decision The or disfavored results.”5 Justice Scalia charged that, far from reaf- Judge describes as “infused with Machiavellian craft” (p. 10). firming Miranda or honoring precedent, the Dickerson majority Why? For starters, Chief Justice John Marshall should have radically revised Miranda and improperly manipulated the doctrine recused himself. As secretary of state under President John of stare decisis. But Justice Scalia pulled off similar revisions and Adams (a job Marshall kept while also serving as chief justice), manipulations in District of Columbia v. Heller.6 In doing so, he Marshall issued Marbury’s disputed commission as a justice of earned his own chapter in The Judge. the peace. Marbury could have been decided without creating a Heller, which struck down a D.C. gun control law as violative judicial power to invalidate federal laws, hence principles of judicial restraint dictate it should have been so decided. By Tyna Thall Orren is an appellate attorney and a partner in the firm of Orren crafting a decision that appeared to make judicial review neces- & Orren in Pasadena, California. She is a member of Los Angeles Lawyer’s sary, Marshall “outmaneuvered [President Jefferson], trumped Editorial Board and former book editor at the University of Minnesota Press.

34 Los Angeles Lawyer March 2018 of the Second Amend ment, performed a more radical surgical operation than Dick - er son did. Dickerson and its forbears merely decoupled Miranda’s judicially announced rules from the express prohi- bitions in the Fifth Amendment. Heller decoupled some ex press language in the Second Amend ment (“A well regulated militia being necessary to the security of a free State”) from the rest (“the right of the people to keep and bear Arms, shall not be infringed”). The Judge declares the resulting conclusion—that the Second Amendment right to bear arms is a per- sonal right, constraining government’s authority to restrict gun possession—”a glorious monument exemplifying the gains to be reaped if one is willing to manipulate the law while smugly claiming fidelity to it” (p. 75). Crafting decisions is only one way that The Judge describes how justices remake the law and build fame and power for themselves. The various nonjudicial means of accomplishing these ends include horse- trading with colleagues, publishing books, giving addresses, and appearing on TV. The justice who used the broadest array of strategies for impacting the law, and used them most effectively, may have been Justice Oliver Wendell Holmes. Holmes is the justice for whom The Judge comes clos- est to expressing unalloyed admiration, free of irony or ambiguity. Through pene- trating legal reasoning and skillful use of language, inside and outside of judicial opinions, Holmes shaped First Amendment law, made crucial contributions to consti- tutional law generally, and built a lasting legacy. He was both a giant in American law and a flawed and controversial man. The authors’ analysis of how Holmes’s human flaws, coupled with his legal bril- liance, contributed to his impact on legal culture is a high point of The Judge. Throughout, The Judge is intriguing and thought-provoking. Its thoroughgoing scholarship (63 pages of footnotes) is kept readable—fun, in fact—by the ironic, guess- when-we’re-joking approach. The most recent of some half a dozen collaborations by the authors (including, notably, The Trials Of Lenny Bruce—a must-read), The Judge pulls the reader into an illuminating, sometimes troubling, and always engrossing conversation about the way the law is shaped in America’s highest court. n

1 Marbury v. Madison, 5 U.S. 137 (1803). 2 Griswold v. Connecticut, 381 U.S. 479 (1965). 3 Miranda v. Arizona, 84 U.S. 436 (1966). 4 See Dickerson v. United States, 530 U.S. 428, 437- 38 (2000). 5 Id. at 444-45. 6 District of Columbia v. Heller, 554 U.S. 570 (2008).

Los Angeles Lawyer March 2018 35 closing argument BY STEVE S. ZAND

Warrantless Border Searches Pose Risk to Attorney Confidentiality Duty

IT MAY COME AS A SURPRISE to many lawyers that a warrantless sentation of a client unless the client gives informed consent, border search of their electronic devices by a U.S. customs officer the disclosure is impliedly authorized in order to carry out the is lawful. Border search can be conducted without probable representation or the disclosure is permitted by paragraph (b). cause, and state laws are inapplicable. Pursuant to the holding (b) A lawyer may reveal information relating to the represen- of Carroll v. United States,1 U.S. customs officers can simply tation of a client to the extent the lawyer reasonably believes demand to inspect the cellphone or laptop of any person, pre- necessary: sumably including lawyers, without probable cause. Individuals (1) to prevent reasonably certain death or substantial bodily harm; travelling to the United States historically have been subject to (2) to prevent the client from committing a crime or fraud that intrusive search and seizures. The Fourth Amendment to the is reasonably certain to result in substantial injury to the financial U.S. Constitution provides that searches without prior approval interests or property of another and in furtherance of which by the courts are unreasonable. Fourth Amendment protections the client has used or is using the lawyer’s services; also have been held to apply to electronic devices. (3) to prevent, mitigate or rectify substantial injury to the United States v. Arnold2 involved the warrantless search of a financial interests or property of another that is reasonably nonlawyer’s electronic devices containing child pornography. While certain to result or has resulted from the client’s commission of U.S. Customs and Border Protection (CBP) and Im migration and a crime or fraud in furtherance of which the client has used the Customs Enforcement (ICE) have protocols to follow regarding lawyer’s services; lawyers, these laws presumably could be applied to permit a U.S. (4) to secure legal advice about the lawyer’s compliance with customs officer to search the contents of a lawyer’s electronic these Rules; devices at the border without reasonable suspicion. (5) to establish a claim or defense on behalf of the lawyer in CBP Directive 3340-049A was revised on January 4, 2018, a controversy between the lawyer and the client, to establish and it does provide some improved protections for lawyers. a defense to a criminal charge or civil claim against the lawyer However, it still provides that a CBP officer in the course of a based upon conduct in which the client was involved, or to “basic search,” with or without suspicion, may examine an elec- respond to allegations in any proceeding concerning the tronic device and review the information encountered at the lawyer’s representation of the client; or border. A CBP officer can demand passcodes of electronic devices, (6) to comply with other law or a court order. but they cannot be kept subsequent to the search. Paragraph (b)(6) provides an exception to the rule when a However, pursuant to the recently revised directive, a reasonable lawyer reveals information “to comply with other law or court suspicion of unlawful activity is required during an “advanced order.” However, paragraph (b)(6) provides little comfort when search” in which an officer connects external equipment to copy attorney-client information is revealed pursuant to warrantless the contents of electronic devices. An officer may perform an searches upon reentry to the United States. advanced search of an electronic device with supervisory approval. Because lawyers have a duty to protect attorney-client privileged Lawyer assertion of attorney-client privilege will not prevent information, such a breach can give rise to legal malpractice as search of his or her electronic devices. Pursuant to paragraph well as potential disciplinary action by the State Bar. 5.2.1.2 of the new directive, once attorney-client privilege has Until the courts provide clear guidance for policies and pro- been asserted, the officer will contact the CBP associate chief cedures to prevent seizure, lawyers must take precautions when counsel office to ensure the segregation of privileged material to travelling outside the United States with their electronic devices. ensure that it is handled appropriately. Such information can be For now, it appears that the only viable option for lawyers read, copied, and shared without a subpoena or a warrant issued to ensure the confidentiality of client information when travelling pursuant to probable cause and distributed to other law enforce- outside the United States is to obtain cellphones and laptops ment agencies, including the Internal Revenue Service. that have not been used in connection with the representation Lawyers’ phones, laptops, and other electronic devices routinely of their clients. The additional cost and inconvenience of obtaining contain attorney-client privileged information. E-mail correspon- cellphones and electronic devices that do not contain attorney- dence, case notes, and financial information are normally kept client information is minimal compared with the potential breach on such electronic devices. Thus, exposure of confidential client of a lawyer’s duty to preserve client confidentiality. n information to a warrantless border search can be a breach of the duty of confidentiality. Business and Professions Code Section 1 Carroll v. United States, 267 U.S. 132, 154 (1925). 6068 states that a lawyer must maintain client confidential infor- 2 United States v. Arnold, 523 F. 3d 941 (9th Cir. 2008). mation at every peril to himself or herself. Model Rule 1.6 of the American Bar Association states: Steve S. Zand is a certified family law specialist and the faculty chair at the (a) A lawyer shall not reveal information relating to the repre- University of West Los Angeles School of Law.

36 Los Angeles Lawyer March 2018