June 2016 Volume 47, Issue 6 The Marin Lawyer

An Official Publication of the Marin County Bar Association

MCBA MEMBERS LUNCHEON In This Issue WED, JUNE 29, 2016 | 11:45 AM – 1:30 PM President’s Message...... 2 Nonprofit Profile: 10,000 Degrees.....3 2016 U.S. Supreme Court Update June Member Lunch: Rory Little..... 4 Important Decisions & Filling the Supreme Court Scalia and Ginsburg...... 4 Vacancy: Facts and Politics Recap: May Veterans Lunch...... 6 Speaker: Professor Rory Little Profile: Hon. Stephen Freccero...... 8 Constitutional Law Professor, UC Hastings Recap: Freccero Induction...... 9 Judges Corner: Roy Chernus...... 10 RESERVE TODAY! Event will sell out. Review: Schwartzbach Memoir..... 11 The Club at McInnis Buffet Lunch Fed & State Salary Hikes...... 12 1 General CLE Libel and Social Media...... 13 $45 MCBA members / $55 nonmembers / $65 walk-ins New Members...... 14 Details & Registration | More Info on Page 4 Calendar Details...... 15 Marketplace...... 16

MARIN MIDSUMMER MIXER Calendar of Events WED, JULY 20, 2016 | 6:00 – 8:00 PM Second Annual MCBA & CalCPA Happy Hour Thu, June 9: 12:00 – 1:30 PM Real Property Section Meeting

Enjoy socializing with your colleagues over wine & appetizers. Tue, June 14: 12:00-1:30 PM 999 Fifth Avenue, San Rafael on the patio Labor & Employment Section Meeting $25 MCBA& CalCPA members / $35 nonmembers Wed, June 15: 12:00 – 1:30 PM Details & Registration Probate & Estate Planning Section Meeting

Tue, June 21: 12:00 – 1:30 PM MCBA MEMBERS LUNCHEON Probate & Estate Planning Mentor Meeting WED, JULY 27, 2016 | 11:45 am – 1:30 PM Thu, June 23: 12:00-1:30 PM Overcoming Racial Bias: Construction Law Section Meeting A continuing challenge for the legal profession June 29: 11:45 AM – 1:30 PM Panel Discussion MCBA Members Luncheon 2016 Update on U.S. Supreme Court Rulings Manny Fortes, Speaker TBA Wed, July 20: 6:00 – 8:00 PM Moderated by DorothyStaff Attorney, Chou Proudfoot San Francisco Office of Citizen Complaints Second Annual MCBA & CalCPA Midsummer Mixer The Key Room Buffet Lunch $45 MCBA members / $55 nonmembers Wed, July 27: 11:45 AM – 1:30 PM .5 CLE Bias & .5 CLE Ethics MCBA Members Luncheon Details & Registration Racial Bias

The Marin Lawyer editorial team thanks June Guest Editor Dorothy Chou Proudfoot. See page 15 for details & more events. 1 The Marin Lawyer

PRESIDENT’S MESSAGE coach Mock Trial. Our volunteers have reached out to Marin high school students providing guidance, informa- Community: tion skills and opportunities. Today, I want to focus on the Giving and Teaching MCBA Legal Education Scholarship program. By Larry Strick The MCBA Legal Education Scholarship program The job of a lawyer carries with provides funds to financially disadvantaged students pur- it a special role in our county’s ad- suing a law school degree with scholarships up to $5,000. ministration of justice. While often Funded with contributions from the MCBA, it’s a col- wrongfully maligned in many com- laboration with 10,000 Degrees and Marin Community munities, attorneys take leadership Foundation (MCF) which administers the fund. Established roles in numerous philanthropic in 2010, the MCBA Legal Education Scholarship program organizations. I know many of our MCBA members serve was launched with a $50,000 contribution to provide finan- throughout the county to help causes large and small. cial assistance to deserving students. Overwhelmingly, attorneys are generous with their time The success of the scholarship program is unquestion- and financial contributions. As a rule, our members do not able. To date, we have given away $33,000.00 in scholar- seek praise or recognition. As a group, they strive to do ship funds to nine local students, many who have served the right thing. legal nonprofits in Marin. On behalf of the MCBA Board, I The campaign for Food for the Bar ends June 10 and want to thank all of our donors. This year, we have received MCF has provided a challenge grant. Thank you to our mem- $16,656 in new funds to expand our scholarship recipients. bers for making a difference to alleviate hunger in Marin. Applications for the 2016 Scholarship are being so- Let me also take this opportunity to publicly thank licited right now; the last day to apply is June 30. If you those who volunteered with the recent Teens & the Law are aware of an individual who may benefit from this great event (chaired by Patricia Medina) and our members who program and meets the qualifications (see MCBAwebsite ) please spread the word. It is the right thing to do.

2016 MCBA SPONSORS SILVER SPONSORS

BRONZE SPONSORS Bank of Marin Foley & Lardner, LLP Ayanna Jenkins Toney Williams & Gumbiner, LLP

LEADERSHIP CIRCLE Elizabeth Brekhus, Esq. Gertler & Chavez LLP Gary Ragghianti, Esq. Susan Feder, Esq. Nassiri & Jung, LLP James Sell, Esq. Peter Flaxman, Esq. Steven Nielsen, Esq. Lawrence Strick, Esq. Freitas Law Firm LLP

Interested in joining the Leadership Circle? Contact Mee Mee Wong at 415-499-1314

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MCBA Legal Scholarship Applications Due June 30, 2016 NONPROFIT PROFILE 10,000 Degrees Each year 10,000 Degrees receives numerous applications for our special legal scholarship. By Kim Mazzuca, CEO These scholarships are funded by generous Now in our 35th year, 10,000 Degrees continues to donations by our many members and friends. do what we do best: Help students from low-income, first-generation backgrounds find a path to and through How can you help? Please let your alumni law college. The organization’s vision is that regardless of race, school know about this scholarship and encour- ethnicity, or socioeconomic status, every student should age eligible students to apply. have the opportunity, support, and resources to achieve a college degree and maximize their potential. 100% of the More Info students we serve come from low-income families, 90% are first-generation students, and 84% are students of color. Two hallmarks of the 10,000 Degrees Program are its Institute, which supports students while they are in high Each year, 10,000 Degrees reaches more students and school, and its College Success program, which supports families through their comprehensive program: students while they are in college. These programs help • College tours 10,000 Degrees achieve greater educational equity in the • College and financial aid workshops North Bay, increase college enrollment, and most impor- tantly, raise graduation rates among groups that have been • Intensive college prep historically underrepresented in higher education. 84% of • Scholarships and financial aid management the 10,000 Degrees students who enroll at four-year col- • Advising during college leges or universities graduate within six years, versus 54% To learn more about 10,000 Degrees and how you can of all students nationwide. join the I AM ONE DEGREE movement, please visit our 10,000 Degrees is also able to provide significant fund- website, www.10000degrees.org ing for its students, awarding $2.8 million in scholarships while leveraging an additional $18 million in free financial aid. On average, 10,000 Degrees students graduate with 1/6 the loan balance of students nationally. We are proud to administer the annual MCBA Legal Scholarship, which has supported ten law school students over the past five years, several of whom are now practicing law in Marin. 10,000 Degrees is able to support more than 4200 students and their fami- lies in Marin and Sonoma counties with 35 full time staff and more than 200 volunteers, many of whom serve as mentors for students in high school. To learn more about how you can become a mentor, please contact Megan Topping at [email protected].

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MCBA MEMBERS LUNCHEON WED, JUNE 29, 2016 | 11:45 AM – 1:30 PM

2016 Supreme Court Update Facts and Politics: Filling the Supreme Court Vacancy & Other Important Decisions Speaker: Professor Rory Little Constitutional Law Professor, UC Hastings

RESERVE TODAY! Event will sell out The Club at McInnis Buffet Lunch $45 MCBA members / $55 nonmembers / $65 walk-ins Details & Registration 1General CLE

In addition to his annual report on recent important cases in front of the U.S. Supreme Court, Professor Little will share his insights about the open seat on the bench. What are the constitutional requirements for filling a vacancy on the U.S. Supreme Court? What is the history of nominations to the court? How will politics affect the current situation? What key issues before the court could change dramatically? Rory Little is a constitutional law and U.S. Supreme Court scholar and teaches at UC Hastings College of the Law. Professor Little is a Supreme Court scholar who is often asked for his expert opinion about legal cases and issues on television and radio. He is also is also a friend of Judge Merrick Garland, President Obama’s Supreme Court nominee. Scotus Blog Summer Reading: Good Reads recommends books about Supreme Court

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Scalia and Ginsburg ideas on the most divisive issues in our country and yet they were close friends. Their families vacationed together. By Edmond McGill They spent holidays together and Antonin and Ruth very You would have a hard time much enjoyed attending opera together. This is the very best finding two judges further apart in of what lawyers and judges do and, in the long history of their philosophies and beliefs about American jurisprudence, no others ever did it better than how the United States Supreme Antonin Scalia and Ruth Bader Ginsburg. Court is to construe the Constitution In remembering Justice Antonin Scalia, we need not than Supreme Court Justices Anto- agree or disagree with his numerous written opinions or nin Scalia and Ruth Bader Ginsburg. his philosophy of government. Rather, let us remember the The two Justices were truly polar example that he and his still-serving “best buddy” Ruth opposites – and yet “best buddies”. Bader Ginsburg gave us about just how to disagree about Their disagreements – rooted ideas. With the passage of time, the fire goes out of even the in the most profound philosophical ugliest of disputes. Forever lasting, however, as the very best differences about how government example for lawyers and judges and even for politicians and should work, the meaning of the citizens in general, is the real human warmth and sincere guarantee of personal liberty and respect and friendship that Justice Scalia and Justice Gins- how judges should construe the burg shared as they disagreed so fundamentally about ideas. Constitution – were not personal. Content from the March 11 article originally published In disagreeing, they did not reduce themselves to the sort in The Legal Pulse, the monthly newsletter of the McGill Law of personal accusation and name calling that we, unfortu- Office. To see other articles or to subscribe to The Legal Pulse nately, sometimes see in political contests. Mud slinging is go to mcgill-lawoffice.com/blog/ , © Edmond McGill, 2016. not new in American politics. Since the founding of the Re- Ed McGill’s practice includes business law, plaintiffs’ public, political adversaries have engaged in vile personal personal injury, property and insurance claims. Ed has attacks on their opponents directly and through proxies. been practicing for more than 40 years in Marin County. He Lawyers and judges are in the business of disagree- can be reached at [email protected]. ment. We lawyers come to conclusions and to the resolution of highly disputed issues by engaging in a combat of the intellect. We test our ideas against each other and sometimes we do this in front of juries who will decide and sometimes Estate Planning And Real Estate before judges who will decide. In appellate courts, cases Attorney Joins Monty White are heard by groups of judges who decide by majorities of the number of judges hearing the case. Argument is the Monty White LLP is pleased to tool. Confrontation cannot be avoided. There are winners announce that Victoria Maxwell and there are losers. has joined the firm as Of Counsel. Scalia and Ginsburg each consciously made the work In addition to being an attorney, Ms. Maxwell is also a California of the other better by thoughtful, intelligent, and respectful licensed real estate broker, and disagreement. They deeply disagreed but they liked and a candidate for a Masters of respected each other. They spared and exchanged contrary Law Degree in Estate Planning

and Taxation. Vickie is also Santa Rosa Office Serving the legal community of Marin since 1965 approved by the Hyatt and ARAG 170 Sotoyome Street, Suite 3 Santa Rosa, CA 95405 MARIN PACIFIC COMPANY.INC. legal plans, and is active in the California Advocates for Nursing San Rafael Office General Insurance Brokers and Agents 1000 Fourth Street, Suite 425 Home Reform. San Rafael, CA 94901 Tel: 415.453.1010 [email protected] Monty White LLP is a nine- www.montywhitelaw.com PROBATE BONDING attorney firm with offices in San 453-1620 Rafael and Santa Rosa. Practice areas include personal injury, 1430 Fourth Street Daniel C. Dufficy construction, estate planning, real San Rafael, CA 94901 Gail Anne Geary estate, land use, nonprofit law, Representing major surety carriers • fast local service immigration, elder law, general civil litigation, and family law. www.marinpacific.com 5 The Marin Lawyer

MAY MEMBERSHIP MEETING Helping Veterans in the Criminal Justice System: Criminal Statutes & Services By Nicole Pantaleo

From left: Brian Dobbs (VA), Jenna Ferrara (VA), Josh Todt (Marin County Sherriff’s Office), Sean Stephens (VA), Rebekah Reali (Marin HHS Jail Social Worker), David Joseph (VA Psychologist), Marcy Orosco (VA Jail & Homeless Outreach Coordinator).

At 48 years old, I was driving down the block from my them immediate assistance. This amazing team consists of house after my morning workout. I was in a good mood. I Sean Stephens; Marcy Orosco, MSW, Veterans’ Outreach stopped at one stop sign. At the next block, I rolled through Coordinator in the Division of Social Services for Marin a stop sign onto the main road. There he was waiting, a Health & Human Services; and Jenna Ferrara, LCSW and police officer. The officer proceeded to pull ME over on my Brian Dobbs, LCSW, both of Veterans Justice Outreach. road, near my house. Suddenly in a flash my good mood They provide military paperwork for court, assist in ap- was gone. I pulled over into the gas station. Did not wait plication for VA benefits, obtain mental health treatment, and immediately got out of the car. I was now defending locate substance abuse treatment placement, and housing my area. I do not know why I did this. I was defensive. The for the veteran. Sean Stephens and this team also help officer saw my 101st license plate and knew that I was transport the veteran immediately from jail to the proper a veteran. He remained calm and dignified. The officer treatment program. walked me through this simple traffic stop, explained how I rolled through the stop sign and offered to show me the Military Misdemeanor Diversion & Felony video. I did an after-action report in my head and calmed Mitigating Factors: down. This was merely a traffic stop violation. Penal Code Section 1001.80 allows the Court to grant Sean Stephens, Veterans’ Service Officer for the Divi- Diversion to a veteran or current military service member sion of Social Services at Marin Health & Human Services, in a misdemeanor case if they “may be suffering from served four tours of Infantry duty in Afghanistan. What may sexual trauma, traumatic brain injury, post-traumatic stress seem like a routine traffic stop to most of us was anything disorder, substance abuse, or mental health problems as a but in that moment to Sean Stephens, as he explained at result of his or her military service.” (Penal Code Section the MCBA Veterans’ in Criminal Justice Luncheon on May 1001.80) 25, 2016. Understanding the perspective of veterans suf- Penal Code Section 1170.91 specifically states that a fering from PTSD, sexual abuse trauma, substance abuse, judge may consider as a mitigating factor in sentencing for and other mental health issues resulting from their service a felony the trauma suffered by a veteran or current member in the military is critical for law enforcement officers who serving in the U.S. Military that relates to sexual trauma, encounter them, and for attorneys and judges who handle PTSD, traumatic brain injury, substance abuse, and mental their criminal cases. health problems resulting from military service. Marin County Sheriffs’ Office partners with Sean Once a veteran or service member is placed on diver- Stephens and his staff in identifying and assisting veterans sion, the terms are determined and ordered by the Court. in custody. Jail Deputy Josh Todt explained that his re-entry The veteran or service member is then usually ordered team identifies veterans when they are booked and then back to court in six months for a status report. It is critical notifies the Veterans Services team of their arrest to get (Continued on page 7) 6 The Marin Lawyer

(May Membership Meeting, continued from page 6) to work with the above team members to ensure a proper evaluation and placement of appropriate services is made to really help the veteran or service member prior to the diversion order being granted. The goal is to obtain a dis- missal of a case, and to actually help the veteran or service member not reoffend and get the appropriate treatment. The presentation made clear that as lawyers we must work collaboratively in the criminal justice system to pro- vide assistance to veterans and current service members MARIN MIDSUMMER MIXER suffering from PTSD, sexual abuse trauma, substance WED, JULY 20, 2016 | 6:00 – 8:00 PM abuse, and other mental health issues. This incredible net- Second Annual work of agencies and resources helps serve our veterans and current service members who have sacrificed to serve MCBA & CalCPA get back on track and rejoin our community as healthy and Happy Hour successful citizens. Enjoy summer socializing with your colleagues Nicole Pantaleo is a Marin County Deputy District At- over wine and appetizers torney, specialized in sexual assault, domestic violence and insurance fraud. Nicole formerly served as the M.C.D.A.’s 999 Fifth Avenue, San Rafael on the patio Coordinator for the Alternative Justice Courts, serving in $25 MCBA & CalCPA members Drug Courts and Star Court for mentally ill probationers. $35 nonmembers She is a Marin County Superior Court judicial candidate. Details & Registration

Drunk Driving 2015 Open Enrollment & Renewals: Now through August 15 and Become a Member of the DMV Matters MCBA ADR Panel Paul Burglin Are you a Mediator, Neutral, or Arbitrator? BURGLIN LAW OFFICES, P.C The MCBA ADR Panel opens once a year 999 Fifth Avenue, Suite 350 to new applicants. ADR Panelists must be San Rafael, CA 94901 current MCBA Members. (415) 729-7300 ADR Directory a rich resource. Applications are (415) 457-2539 (fax) nowFor community open for new and and colleagues, renewing many applications. find the [email protected] www.burglin.com Click here for more information and application forms. Author: Calif. Drunk Driving Law A-V Rated - Martindale Hubbell TM Board Certified in DUI Defense 7 The Marin Lawyer

JUDGE PROFILE When did you decide you wanted to be a judge and why? I am not sure that I can pinpoint the moment I decided Stephen P. Freccero I wanted to be a judge. I spent most my legal career in By Dorothy C. Proudfoot courtrooms trying civil and criminal cases and had always thought a great deal about the role of the judge. It was only MCBA President-Elect Dorothy in the last few years, however, that I gave serious consid- Chou Proudfoot recently intercepted eration to pursuing a position myself. I found that after Judge Freccero in the Hall of Justice practicing law for more than 25 years, many of my friends in between ever-so-brief trial breaks and former colleagues had become judges and they always to gather a little more information expressed enthusiasm for their new roles. Many of them about this thoughtful jurist. encouraged me to apply for the bench. In the end I think it was a desire to return to public service and a deep affinity I know you’ve lived in this county for many years. What for the courtroom that spurred me to seek an appointment. brought you to Marin? I have an abiding respect for our court system and wanted I first moved to Marin County in the early 1990’s a chance to emulate the best of the judicial attributes I had because I was drawn to its natural beauty. In those days, I observed over the years litigating cases. spent much of my free time mountain biking on the many trails that cross the county. When my wife and I decided What do you do when you’re not at work? to raise a family we looked for a home here because we When not at work, I spend as much time as I can with wanted our children to experience the beauty of Marin’s my family. When we can all gather together we enjoy out- hills and the coastline. In 1998, we moved to Larkspur ings – either hikes or trips abroad. Now that my children where we have lived ever since. are grown, it is harder to do things together. Sometimes the most pleasurable moments come from sharing a meal. Tell us about your family. Otherwise, my own free time is spent trying to stay physi- I am protective of my immediate family’s privacy so cally active. In the past I was an intercollegiate athlete and I tend to limit my remarks about them. I have been mar- a martial artist; these days I have to make do with light ried for more than 20 years and have two daughters. My running and yoga. I also never tire of exploring the trails children were raised in Marin and attended kindergarten in the hills near my home. through high school here. They are now both young adults pursuing their college education. How would you describe the ideal relationship between the Marin County Bar Association and the Bench? (Do Briefly describe your previous employment. you have ideas about how to get there?) My legal employment had two phases. The first was The relationship between the bench and bar can be government service. In 1987, after graduating from law critical to the overall success of the courts. Both institutions school, I clerked for Judge Conti on the US District Court have an interest in seeing the other succeed: attorneys have in San Francisco. After the clerkship I joined the U.S. At- an interest in securing access to fair and efficient dispute torney’s Office in San Francisco where I served as a federal resolution and judges have an interest in seeing that litigants prosecutor for nearly a decade. During my tenure with the are well-served. As with any institutional relationship, the Department of Justice, I had the opportunity to pursue a key is to foster communication. The bench and bar must Fulbright scholarship in Italy. I studied at the European continually search out opportunities where they can work University Institute and obtained an LLM in European and together without sacrificing their identity or independence. International Law. Regular gatherings at bar functions are always im- The second phase began in 1998 when I left govern- portant because frequent interaction promotes problem- ment service and went into private practice at Morrison solving. I recognize that in light of professional demands & Foerster in San Francisco. My practice there focused it can be difficult for judges and attorneys to find the time on civil litigation involving business disputes. In my 17 to work on bar association projects. Nonetheless there years at the firm, I handled a wide range of matters involv- have been a number of initiatives in Marin that have been ing intellectual property, energy litigation, and antitrust. I successful and I look forward to participating in similar practiced law at Morrison & Foerster until I was appointed efforts in the future. to the bench in November of 2015. (Continued on page 8)

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(Judge Profile, continued from page 7) What are the top three tips you would give attorneys about appearing before you? I think the most basic advice is always the best: Be punctual. Be prepared. Be courteous.

What was the best/worst/strangest experience in your career? My most rewarding experience as a lawyer was work- ing on the UNABOM investigation and prosecution. I spent many years on the case (1993-1998) in both its investigation RECAP and prosecution phases. During this time, I worked with May 19 Induction Ceremony for countless dedicated women and men in law enforcement Judge Stephen Freccero and also came to personally know many of the victims and their families. The dedication of the agents and the grace By Mee Mee Wong and courage of the victims made a lasting impression on Among a crowd of MCBA members, colleagues, family, me. Much has been written about the case, but from my and friends, Judge Stephen P. Freccero took the oath of office to perspective our greatest achievement was demonstrating serve as the twelfth Judge on the Marin County Superior Court. that the criminal justice system can work in the most dif- He was appointed by Governor Jerry Brown in November, ficult circumstances. The lesson I draw from the experience 2015. A Democrat, he is Governor Brown’s fourth appointment is that we can combat terrorism without sacrificing our to the Marin bench. Geoffrey Howard was appointed in 2014, legal principles. Beverly Wood in 2013, and Mark Talamantes in 2012. Judge Freccero fills the position on the bench vacated when Lynn So far, what have you enjoyed the most about serving Duryee retired. as a judge here in Marin? A former federal prosecutor, Judge Freccero is well- Without a doubt, the most enjoyable aspect of the job known for his work on the Unabomber case. He was a partner at so far has been being a part of such a collegial court. Judges the San Francisco office of Morrison and Foerster, LLP. Before and courtroom staff have been welcoming and helpful. It becoming a federal prosecutor, Freccero was a law clerk to U.S. is heartening to know that there are so many capable and District Judge Samuel Conti in San Francisco. He has lived experienced people ready to assist me and help in my transi- in Marin for more than 20 years and raised his family here. tion. It is inspiring to learn that there is a diverse community Judge Freccero has a bachelor’s degree in religion of public servants within the courthouse and that they all from Wesleyan University in Connecticut, a law degree share a goal of making our court successful. from the European University Institute in Italy, a law degree from the University of California at Berkeley, and was a Judge Stephen Freccero was appointed by Governor Fulbright scholar in Italy. Brown in November 2015 to fill the vacancy created by Eugene Illovsky, a long time colleague and friend the retirement of Judge Lynn Duryee. He earned a Master of Judge Freccero from his days at Morrison & Foerster, of Laws degree from the European University Institute, a served as Master of Ceremony, and MCBA President Larry Juris Doctor degree from UC Berkeley School of Law and Strick made introductions. Speakers the Hon. Marla Miller a Bachelor of Arts degree from Wesleyan University. (California Court of Appeal, First District) and Melvin Gold- man (Morrison & Foerster LLP) praised Judge Freccero’s accomplishments. The oath was administered by the Hon. Robert Dondero (California Court of Appeal, First District). To view photos of the Induction Ceremony Judge Freccero concluded the program with powerful, for Judge Freccero: humorous, and moving remarks providing a synopsis of his Link | personal history, philosophy, and devotion and commitment Photos courtesy of John Ling Photography in serving justice to the Marin community. The current judicial bench and retired Judges and Commissioners were on stage to celebrate this special occasion. Morrison & Foerster LLP generously sponsored the reception, thoroughly enjoyed by the guests. 9 The Marin Lawyer

JUDGES CORNER If every attorney were to strive at all times to be more Update from the professional, all sides of every case would benefit. And the clients looking for a pit bull to represent them would Bench: Bringing Back come up empty. the “Good Old Days” I know what some of you are thinking: why should I do this unilaterally? The other attorneys won’t do this and By The Honorable Roy Chernus my clients will be at a disadvantage. For those of us who were Well, you should do it anyway because it is the right sworn in as attorneys before May thing to do! And I honestly believe that your professional 27, 2014, it may be a surprise to results, and career and life satisfaction will skyrocket. You learn that the attorney oath for new will have better professional and personal relationships lawyers has been changed. On that date Rule 9.4 of the with other attorneys which will enhance your ability to California Rules of Court became effective to supplement succeed. And there is a very good chance that the judges the attorney oath for new lawyers. will notice and silently approve of your new, improved Rule 9.4 states: “In addition to the language required professionalism. by Business and Professions Code section 6067, the oath I recall a reading about a survey a few years ago that to be taken by every person on admission to practice law is said that most people didn’t believe that attorneys contrib- to conclude with the following: ‘As an officer of the court, uted to our society’s well-being. I would really like all of I will strive to conduct myself at all times with dignity, us to be part of a movement to change that. While parts courtesy, and integrity’” (emphasis added). of our profession will always need to focus on resolving I think it is obvious why the oath was changed – at disputes, all of our profession should be dedicated to doing times dignity, courtesy and integrity appear to be missing our jobs in a dignified manner. After all, we all are officers in action in our profession. This essay is my attempt to try of the court and should act that way. to bring them back. Attorneys surely strive to zealously represent their clients. But that doesn’t have to mean that attorneys should always reflect the attitudes of their clients. Let’s face it; Court Reporting Services in the Bay Area & Beyond many clients are not happy about their civil, criminal, family law, or other matter for which they are being rep- resented. And they may want their unhappiness or anger to be expressed clearly by their attorney. After all, they may think, who’s paying the bill? Yet rarely does a client’s even justifiable anger do any- thing good for her or his case. So attorneys should model Cal-Pacific good behavior for everyone in our system. Acting “at all Reporting, Inc. times with dignity, courtesy and integrity” and using your 18 Professional Center Pkwy, 3rd Floor best professional abilities to help your clients is the way San Rafael, CA 94903 in which all of us can bring the practice of law back into a Expedited Transcripts / Exhibit Scanned & Tabbed more polite and civilized era. Rough Drafts / LiveNote / RealTime Attorneys can and should teach their clients that one Valuable Cost and Time Savings can respectfully disagree without becoming disagreeable. In Searchable PDF E-Transcripts Certified Shorthand Reporters/Videography In fact, attorneys can actually help clients resolve their Suites Complimentary / Free Parking / Free Snacks disputes better, faster, and cheaper if they consciously Efficient Dependable Timely Transcripts try to lower the volume and edit out any unnecessary ad hominem attacks directed at the other side. Schedule today by calling 415.578.2480 From my seat in the courtroom, I have observed that Toll Free 855.701.9574 [email protected] the “old school” attorneys, who are more restrained, and www.calpacificreporting.com seem to make theirs cases more dignified than those who are fighting virtually every issue. And I believe that they Discounts to Marin County Bar Members get equivalent, if not better, outcomes.

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REVIEW his decades of trial practice. His reply echoes the books M. Gerald Schwartzbach’s Memoir theme, “There is no shortcut to thorough preparation. You don’t know what is possible unless you explore everything. Leaning On the Arc, A Personal Also, if you have to choose between being liked and being History of Criminal Defense respected, both you and your clients are best served by you being respected.” By Charles D. Dresow In describing his various trials, Mr. Schwartzbach M. Gerald Schwartzbach, criminal reveals his preparation, planning, investigation, and trial defense attorney and longtime MCBA strategy of these cases. His case history descriptions are member, has gone to trial for those ac- both fascinating and educational. A lawyer can take away cused of crimes for over 40 years. His a significant amount of practical knowledge from the book. book, Leaning on the Arc, A Personal When asked what advice he would give a young law- History of Criminal Defense, is the yer Mr. Schwartzbach advised, “Confer with one or more story of his life, his trials, and the law. experienced lawyers with a good reputation. Investigate all It can be read as a personal memoir, a facts and witnesses and conduct legal research on all issues legal primer, or a fascinating history of you anticipate arising before or during trial; in other words, the success and failures of our criminal prepare thoroughly. Do not try to mimic other lawyers. justice system. The book is so much There is no one personality that is better than another. Just more than the personal history of one lawyer. be yourself and believe in yourself.” My favorite line of Mr. Schwartzbach’s book elo- I found the detailed case histories contained in the quently describes the duty of a criminal defense attorney book fascinating. The book covers some of Mr. Schwartz- when called to represent an unpopular client charged with bach’s better known cases, such as the Stephen Bingham, a brutal crime. In explaining why he accepted a death Robert Blake, and Hootan Roozrokh matters. It also con- penalty case in 1979 he states, “But of course, I took the tains wonderful chapters regarding some of Mr. Schwartz- case. Maybe I did so because that is what lawyers do; it is bach’s lesser known cases and clients. The book reveals an the lawyer’s job. Somebody had to defend Maurice. Like inspiring reality – that Mr. Schwartzbach dedicated himself you and me and everyone else, he had a right to his day in to all of his clients, rich or poor, famous or forgotten, with court and to the best representation possible.” equal vigor and effectiveness. The book covers Mr. Schwartzbach’s legal career Leaning on the Arc is not only just a valuable resource from when he first began practice in Detroit in 1969 until for trial tactics and legal strategy. The cases that are featured the present. He was sworn into the California Bar in 1974 in the book are of both local, national interest and histori- and has earned a stellar reputation by effectively handling cal interest. The four decades of jury trials described are a numerous high profile, high stakes cases. Gary Ragghianti, commentary of where society was at the time of the trial. who has practiced law in Marin as both a Deputy District Few lawyers have tried has many high stakes, high pres- Attorney, criminal defense attorney, elected official, and sure, high profile cases for as long as Mr. Schwartzbach mediator says, “Gerry Schwartzbach is the lawyer one as- has. After four decades of jury trial, he still feels that the pires to be. Brilliant, unflinching in the face of seemingly jury is critical to our system of justice, “Judges are no less impossible odds and obstacles, devoted to his clients and vulnerable to human frailties than lay people. The best always exquisitely well-prepared. He is a jealous guardian chance to achieve a fair and impartial verdict is to have a of not only his client’s constitutional rights but of all of ours fair and impartial jury, which jury represents a cross sec- as well. This is the type of lawyer and person we see and tion of the community.” His book is a fascinating look at experience only rarely. He makes us all proud.” the history of his legal life and his jury trials. Mr. Schwartzbach’s book is a valuable resource for a I highly recommend the book. I certainly enjoyed young or experienced trial lawyer, prosecutor or criminal reading and learning from it. defense attorney, who wants to read how to prepare for and try cases to a jury. Within the various trials and cases Charlie Dresow is somewhat of living legend. He has featured one learns that a key to trial success is investigating conquered various mythical challenges. He used to be an every facet of your case, preparing for every eventuality, athlete. He was once referred to as Captain America by knowing the case better than anyone else in the courtroom clients who resided in the Sacramento County jail. He and representing your client to the best of your abilities. practices criminal law with Ragghianti Freitas and can In preparing this article, I asked Mr. Schwartzbach be reached at [email protected]. what was the most important lesson he had learned over 11 The Marin Lawyer

Salary Hikes for the minimum salary for California white collar exemptions will exceed the FLSA’s level, annualized at $49,920. (Cali- Federal & California fornia employees working for businesses with less than 26 Overtime Exemptions employees will be a year behind in their pay increases, which will start in January 2018.) When California’s minimum By Lisa Maslow wage reaches $15 an hour (in 2022 or 2023, depending on The U.S. Department of Labor the size of the business), exempt managers, administrators recently announced a substantial and professionals must be paid at least $62,400. pay raise for employees in the The boost in exempt salary requirements will likely “white collar” exemption catego- have a ripple effect on other employees’ paychecks. Employ- ries. Starting December 1, 2016, exempt managers, admin- ers may choose to adjust the compensation of other employ- istrators and professionals must be paid a minimum weekly ees earning near the new pay levels to maintain relative pay salary of $913 ($47,476 annually). Failure to satisfy the equity. Other employers may decide to reclassify lower-paid new pay level will cause the employee to be considered exempt employees to nonexempt status — especially if the “nonexempt” under the Fair Labor Standards Act (FLSA) employees work little to no overtime hours. The Department — meaning that the employee must be paid overtime, keep of Labor estimates that the FLSA regulations will extend timesheets, etc. — regardless of the importance of the overtime protections to 4.2 million Americans who are not employee’s job duties. The FLSA minimum salary will be currently eligible under federal law, and will boost wages automatically updated every three years starting January 1, for workers by $12 billion over the next 10 years. 2020 based on data from the lowest wage Census region. California employers are required to comply with The new FLSA regulations will allow employers to the most (employee) protective aspects of both FLSA and count nondiscretionary bonuses, commissions and incen- state labor law. This means that most exempt employees’ tive payments to satisfy up to 10% of the required salary minimum salary must meet or exceed the new FLSA levels level. However, such payments must be made on a quar- starting December 1, 2016. Unlike federal law, California terly or more frequent basis. Nondiscretionary bonuses does not exempt licensed lawyers from the fixed monthly and incentive pay are forms of compensation promised as salary requirement. Nor does California recognize the a reward for certain behavior, e.g., achieving productivity FLSA exemption for Highly Compensated Employees or sales goals, good attendance, or length of employment. (HCE), who must be paid at least $134,004 annually start- By contrast, a discretionary bonus is an unannounced bonus ing December 1, 2016. or spontaneous reward for a specific act. Employers are advised to consult with labor counsel California pay requirements are also going up due to for more detailed information about the impact of the new the minimum wage increase signed by Governor Brown in FLSA regulations. April. Currently, California requires a minimum monthly salary for exempt managers, administrators and profes- Lisa Spann Maslow advises employers on labor and sionals of $3,466.67 ($41,600 annually). Because exempt employment law matters and conducts independent work- compensation is tied to California’s minimum wage, the place investigations. Please feel free to contact the Law exempt salary requirement for California businesses with Offices of Lisa Spann Maslow, PC, at 415/380-9470 or 26 or more employees will increase approximately $2,000 [email protected]. a year in January of both 2017 and 2018. By January 2019,

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12 The Marin Lawyer

Libel and Social Media: only by the pseudonym “Abe List” tweeted at Woods and called him a “cocaine addict.” Woods responded by su- The Next Frontier ing Abe List for $10 million. In denying the defendant’s By Jason Feder anti-SLAPP motion, the court found that “many if not all readers” of the tweet would understand and interpret According to Twitter, Stephan the statement as a factual claim. The court’s ruling relied Curry has a “girly name,” Bob Costas on analysis conducted by a linguistic professor hired by “is a vampire,” and Kurt Russell’s Woods, which found that the syntax and structure of the “face is made of aged denim.” tweet would likely be interpreted as conveying factual While these tweets may not have information. crossed the line from light-hearted Barring a successful appeal, discovery in the case entertainment to libel, exactly where that line is drawn in will proceed with an eye toward unmasking Abe List’s the context of social media has recently become a brewing identity and whether he had knowledge of falsity or a issue for the judiciary. reckless disregard for the truth when crafting the tweet. If Traditionally, libel claims arose in the wake of the defendant’s identity does become public, this case will statements made through the media, whether in print or likely further blur the line that separates constitutionally broadcast on TV or the radio. To win a libel claim, you protected opinions from libelous assertions of fact in the would need to show that the defendant made a factually context of social media. false statement about the plaintiff in a written communi- Another recent high-profile suit has the potential to cation to a third party that was naturally injurious to the shape the Twibel landscape. In April 2016, a political plaintiff’s reputation. Now, with the rise of social media, strategist and public relations consultant Cheryl Jacobus courts are grappling with how to apply this decades-old sued Donald Trump based in part on comments made on framework to statements made on platforms like Twitter Twitter, in which Trump called her “a real dummy” and where exaggeration and hyperbole are commonplace. The “a major loser” with “zero credibility.” Jacobus filed suit, debate over what constitutes Twitter libel – or “Twibel” as alleging $2 million in damages. While New York’s anti- it has become known – has been percolating through the SLAPP statute is much more limited than California’s and courts, with several high-profile cases popping up in the likely won’t apply to Jacobus’ claims, whether or not the last couple of years. court finds Trump’s tweets to be statements of fact could be indicative of which direction libel law is heading in the Recent Cases social media arena. In 2011, a tweet by rock star Courtney Love put her at the heart of the Twibel storm and led to the first American Going Forward Twitter libel case tried to a jury. After Love tweeted that her If the recent flurry of Twibel lawsuits is any indica- former attorney, Rhonda Holmes, had been “bought off,” tion, there is little reason to think that courts will stray far Holmes sued for libel, claiming damages of $8 million. In from applying the traditional libel framework to platforms pre-trial motions, Love’s legal team argued that the tradi- such as Twitter. This is good news for potential plaintiffs tional libel framework should not apply to such statements whose claims won’t be dismissed on the basis that it’s just made on Twitter because tweets are not read as fact by the “Twitter being Twitter.” In other words, defamation claims Twitter universe. The court rejected this position, holding based on tweets won’t be tossed out merely because of the Love’s tweet to the same legal requirements imposed in informality of the platform on which they were made. In more traditional libel cases. turn, those who think they’ve been defamed on the internet After three years of litigating, the Los Angeles County may be more aggressive in taking their claims to court. The jury found that – although Love’s tweet constituted a “false question will then become to what extent courts will dis- statement” and had a tendency to injure Holmes’ profes- count the legitimacy of statements made on Twitter – where sion – Holmes had failed to prove that Love knew it to be over 500 million tweets are sent every day – and choose to false or had serious doubts about the truth of the statement. interpret tweets as opinion, rather than factual assertions. Holmes was awarded no damages and the Court of Appeals On one hand, this analysis will be heavily fact-inten- affirmed the jury verdict in February 2016. sive. Plaintiffs, like in Woods’ case, will likely try to nar- Another recent Twibel case, brought by actor James row scope of the circumstances considered in making this Woods, implicates the legal issues surrounding the anonym- determination, arguing that a tweet should be interpreted as ity of Twitter’s users. In July 2015, a Twitter user known much in a vacuum as can be, without taking into account (Continued on page 14) 13 The Marin Lawyer

(Libel, continued from page 13) the wild west nature of Twitter. Plaintiffs, at least the ones NEW MEMBERS who can afford it, may increasingly turn to linguistic experts to keep tweets in the courtroom and over the “statement of fact” legal threshold. Philip Downs On the other hand, it is hard to imagine courts opening Allen Glaessener Hazelwoodwerth the door wide enough where run-of-the-mill insults would 180 Montgomery St., Suite 1200 get Twitter users in hot water. The courts will need to find San FranciscoCA 94104 415-697-2000 some way to balance the reality of social media against [email protected] individuals’ ability to recover damages when truly defama- tory statements are made. One way that this balance might Ellie Ehlert be struck would be for courts to take a narrow view of the 2422 Zurlo Way damages prong. To use Woods’ case as an example, without Santa RosaCA 95403 a showing of exactly how the “cocaine addict” statement [email protected] hurt his reputation – which would necessarily entail show- Student Member ing that the tweet was taken seriously – the court may be hesitant to award any damages at all. Amy Frenzen As is clear from the Twibel cases making their way Drinker Biddle & Reath through the courts, the legal landscape is still playing 50 Fremont Street, 20th Floor catch-up with technology. Only time will tell where the San Francisco CA 94105 judiciary will fit such social media platforms as Twitter 415-591-7535 into the traditional libel framework. Until we know more, [email protected] a word to the wise – keep those tweets about James Woods to yourself. Robin Glazer Robin Kohn Glazer, JD Broker Jason Feder is an associate and litigation lawyer with 1001 BridgeWay #107 Foley & Lardner LLP. He is a member of the firm’s Busi- Sausalito CA 94965 ness Litigation & Dispute Resolution Practice. He can be 415-328-5564 reached at [email protected]. [email protected] Jessica Gorton 248 City Center Drive Lifting business Rohnert Park CA 94928 [email protected] voice service Student Member out of the fog James O’Brien and into the cloud. 1700 Montgomery St. Suite 101 San Francisco CA 94911 415-513-7942 [email protected] 2809 Telegraph Avenue, Suite 202 | Berkeley, CA 94705 Eric Reading 1 (510) 859 7000 | www.telnexus.com 3450 Sacramento St. San Francisco CA 94118 [email protected] Student Member

NicoleTaubman 26322 Towne Centre Drive #538 Foothill Ranch, CA 92610 626-808-1391 [email protected] Student Member 14 The Marin Lawyer

CALENDAR DETAILS June 29: 11:45 AM – 1:30 PM MCBA Members Luncheon 2016 Update on U.S. Supreme Court Rulings Thu, June 9: 12:00 – 1:30 PM Speaker: Professor Rory Little Real Property Section Meeting Cost: $45 members / $55 nonmembers Drafting Easement Agreements Location: Club at McInnis, 250 Smith Ranch Rd. Speaker: Paul Carey, Esq., Dickensen, Peatman & Fogarty San Rafael 1 hour CLE, general Registration & Info Resolution Remedies, 1000 4th St., San Rafael Contact: [email protected] Cost (includes lunch): $30 Section Members / $20 Mem- bers 5 years or less in practice / $40 Non-Section Members Wed, July 13: 12:00-1:30 PM Registration & Info Business Law Section Meeting Contact: Tracy Wilson [email protected] Litigating Over Trade Secrets Speaker: Ben Berkowitz, Keker & Van Nest, LLP Tue, June 14: 12:00-1:30 PM Location: Town Center Community Room, Labor & Employment Section Meeting 770 Tamalpais Dr, Suite 201 Ethics and Professional Responsibility Brown Bag Lunch Speaker: Samuel Bellicini 1 hr. CLE, general Ragghianti Freitas, 1101 Fifth Avenue, Suite 100 Registration & Info Cost: $10 Section Members / $20 Non-Members Contact: Kassra Nassiri [email protected] Brown Bag Lunch, 1 CLE Credit, Ethics Registration & Info Wed, July 20: 12:00 – 1:30 PM Contact: Sarah Wright, [email protected] Probate & Estate Planning Section Meeting Change in Ownership: An Introduction & Update for Estate Wed, June 15: 12:00 – 1:30 PM Planners Probate & Estate Planning Section Meeting Speaker Leslie Ang, Tax Counsel, Board of Equalization Several New Uses for Reverse Mortgages in Retirement Location: Town Center Community Room, Income Planning and Estate Planning 770 Tamalpais Dr, Suite 201 Speakers: Mary Jo Lafaye & Barry H. Sacks, J.D., Ph.D. Brown Bag Lunch Location: Town Center Community Room, 1 hr. CLE, general 770 Tamalpais Dr, Suite 201 Registration & Info Brown Bag Lunch, 1 hr. CLE, general Contact: Anne Reilly [email protected] or Dan Furhman [email protected], Registration & Info Contact: Anne Reilly [email protected] or Wed, July 20: 6:00 – 8:00 PM Dan Furhman [email protected] Second Annual MCBA & CalCPA Midsummer Mixer Cost: $25 members / $35 nonmembers Tue, June 21: 12:00 – 1:30 PM 999 Fifth Avenue, San Rafael Probate & Estate Planning Mentor Meeting Must be over 21 with proper ID to attend Lerman Law Building, 802 B Street, San Rafael Registration & Info RSVP to Michelle Lerman [email protected] Contact: [email protected] or Debra Whitehouse, [email protected] Tue, July 26: 12:00 – 1:30 PM Thu, June 23: 12:00-1:30 PM Probate & Estate Planning Mentor Meeting Construction Law Section Meeting Lerman Law Building, 802 B Street, San Rafael Employee Relations for Contractors: What to Look Out for and How to Avoid it RSVP to Michelle Lerman [email protected] Speaker: Larry Levy or Debra Whitehouse, [email protected] Ragghianti Freitas, 1101 Fifth Avenue, Suite 100 Brown Bag Lunch, 1 CLE Credit (Continued on page 16) Registration & Info 15 The Marin Lawyer David Hellman Marin Bar ad 2008

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David M. Hellman, President TEL: (415) 457-4411 Attorney & CPA FAX: (415) 457-0356 (Details, continued from page 15) Wed, July 27: 11:45 AM – 1:30 PM MCBA Members Luncheon Racial Bias: how does it affect our practice as lawyers? Speakers: Manny Fortes, San Francisco Office of Citizen Complaints & Speaker TBA The Marin County Bar A s s o c i a t i o n Moderator: Dorothy Chou Proudfoot Cost: $45 members / $55 nonmembers Mission Statement of the Location: Key Room, 1385 Hamilton Pkwy, Novato Marin County Bar Association Registration & Info Contact: [email protected] To involve, encourage, and support bar association members, Thu, July 28: 12:00-1:30 PM to serve as a liaison to the Marin County courts, and to educate the community and Construction Law Section Meeting enhance access to legal services. Accounting & Commercial Damages: Tips &Tricks for Working with the Experts Speaker: Jeff Redman Ragghianti Freitas, 1101 Fifth Avenue, Suite 100 Marin County Bar Association Brown Bag Lunch, 1 CLE Credit 101 Lucas Valley Road, Suite 326, San Rafael, CA 94903 Registration & Info 415-499-1314 | www.marinbar.org Published by The Marin County Bar Association

2016 MCBA Officers Lawrence A. Strick President Dorothy Chou Proudfoot President Elect Thomas Brown Secretary Jessica Stuart Pliner Treasurer Randy Wallace Past President Lawrence Baskin 5 Year Past President Board of Directors 2016 Directors 2017 Directors 2018 Directors The Hon. Michael Patricia Conway Alan Brayton Dufficy Ret. Rodrigo Dias Nicole Cabalette Caroline Joachim Dotty LeMieux Damon Connolly Shelley A. Kramer James Sell Charles Dresow Patricia Medina Romy Taubman Susan Feder Christian Martinez Executive Director: Mee Mee Wong Communications Manager: Kathleen Gaines Marin Lawyer Editor: Caroline Joachim Production & Advertising: Pat Stone, Express Printing

Deadline for submission of articles, ads, inserts, and MCBA encourages submission of articles that may interest the legal community. Letters to the Editor are also welcome and may be published if space permits. Submissions will not be returned. The Editor reserves announcements is the 15th of each month. the right to publish, decline to publish, edit or otherwise modify any submission. Editorial material should be sent to the Marin County Bar Association at the above address. 16