INSIDE ... JUNE 2016 n Photos from the Paralegal/YLD Division Volume 35, Number 6 food bank pack-and-sort event — p. 4 OFFICIAL PUBLICATION OF THE n Three quick reminders about lawyer ethics — p. 6 FOUNDED 1914 www.maricopabar.org n Sanctions for sexist remarks — p. 13 Where The Legal Community Connects NOMINATE NOW! Hall of Fame seeks candidates and invites Member of the Year nominations Maricopa County Bar Hall of Fame information required for each candidate. The sion and promoting the ideal of pro- As the Hall of Fame begins its ninth year, committee members do not do their own re- fessionalism; and/or its selection committee again seeks candi- search, so candidates are judged on the infor- (3) Shows an outstanding commitment to dates for induction into the 2016 Hall of mation submitted by their nominators. public service, including charitable, cul- Fame. To date, 125 exceptional lawyers and You are invited to re-submit a nominee tural, humanitarian and/or educational judges have been inducted. from a previous year with complete informa- service to the community at large. Half Moon Hall of Fame candidates must have been tion as noted in the nomination form. Nomi- To recommend a worthy recipient, please in practice for at least 10 years; played promi- nations are due July 12, 2016 by 5 p.m. send a letter of nomination with support- Grill-Biltmore nent and important roles that have made an ing information to: Laurie Williams at lwil- impact on the history and development of MCBA Member of the Year [email protected] (subject line: Mem- 2121 E. Highland Ave. our local bar and legal professions; made sig- The Robert R. Mills Member of the Year ber of the Year) or mail the documents to Phoenix, AZ 85016 nificant or unique contributions to the law or Award was reinstituted in 2012 with the se- Maricopa County Bar Association, 303 E. the administration of justice; and/or demon- lection of Hon. Glenn Davis as its recipient. Palm Lane, Phoenix, AZ 85004. June 2, 2016 strated significant leadership, advocacy and Any MCBA member is invited to make a The deadline for the Member of the Year accomplishments in service to the commu- nomination. The criteria are: nomination is 5 p.m. on June 15, 2016. 5 p.m. till ? nity or the profession. A current member of the MCBA who: For more information, contact Laurie A full-page form for nominations can be (1) Significantly contributes to the pro- Williams at (602) 257-4200 or lwilliams@ Sponsored by the Bankruptcy Section found on page 7 — though nominations may grams and activities of the MCBA; maricopabar.org. Information on both Appetizers sponsored by also be made online at www.maricopabar. (2) Dedicates himself or herself to fur- awards can also be found at www.maricop- Snell & Wilmer, LLP org/halloffame — and includes additional thering the goals of the legal profes- abar.org. n No RSVP required. See you there! CourtWatch Daniel P. Schaack ceed on the merits of its claims, issued a pre- Arizona identity-theft statutes survive liminary injunction barring the government PAID from enforcing the two identity-theft statutes PRSRT STD PRSRT Phoenix, AZ U.S. Postage in employment situations. Reversing that or- Permit No. 4786 Permit constitutional challenge … for now der, Tallman concluded to the contrary that In what might be described as an anti- least in part, in an effort to solve some of “Puente is not likely to succeed on, and has federal-government fervor, the Arizona Leg- Arizona’s problems stemming from illegal not raised serious questions about, the merits islature some years back enacted various laws immigration.” He explained that their titles of its facial challenge” to the statutes. designed to bring the state into the business and legislative history “show an intent on the Tallman set a high bar, noting that the court of regulating illegal immigration. Some of part of Arizona legislators to prevent unau- could not bar enforcement unless Congress’s those provisions have been thwarted, with thorized aliens from coming to and remain- intent to preempt the state statutes was clear courts holding for the most part that the area ing in the state.” and manifest. Even more, because Puente had is reserved exclusively to the federal govern- In what might be seen as an understate- not raised an as-applied challenge but a facial ment. But the Ninth Circuit recently held that ment, Tallman wrote that after their enact- challenge, it had to prove that the statutes were a couple of Arizona’s laws do not necessar- ment, “Arizona” — read, Sheriff Joe Arpaio invalid in all conceivable circumstances. It was ily founder, despite the Arizona Legislature’s — “has been aggressively enforcing employ- there that Puente’s arguments foundered. Not evident intent to enter into this field reserved ment-related identity theft.” In response to only were there conceivable circumstances in to the feds. Puente Arizona v. Arpaio, No. 15- the numerous prosecutions, the human rights which the statutes were okay, the record es- 15213, (9th Cir., May 2, 2016). group Puente Arizona and others sued vari- tablished that they had actually been enforced In 2007, the Legislature enacted H.B. ous government officials seeking to enjoin in circumstances not implicating IRCA. As 2779, the Legal Arizona Workers Act, one enforcement of these provisions. It argued Tallman put it, “the identity theft laws are not of whose provisions amended A.R.S. § 13- that the statutes violate the Supremacy Clause facially preempted because they have obvious 2009, the aggravated-identity-theft statute. of the United States Constitution because constitutional applications.” The amendment prohibits using the identity they are preempted by federal law, specifically The statutes are textually neutral, he noted, of another person — real or fictitious — in IRCA — the Immigration Reform and Con- applying to persons other than immigrants. an attempt to gain employment. The next trol Act. Both prohibit “any person” from stealing an year, it enacted H.B. 2745, the Employment Contending that IRCA comprehensively identity in order to obtain employment. They of Unauthorized Aliens Act, which expanded governs the area of unauthorized aliens’ thus “apply to unauthorized aliens, autho- A.R.S. § 13-2008, the general identity-theft employment, Puente argued that Arizona’s rized aliens, and U.S. citizens alike.” He illus- statute, to reach employment-related identity employment-related identity-theft laws are trated the point by referring to hypotheticals theft. According to Judge Richard C. Tall- preempted on their face. The district court, that had been raised at oral argument. “These man’s opinion, “These bills were passed, at having found that Puente was likely to suc- See Arizona identity-theft statutes ... page 15 2 • JUNE 2016 MARICOPA LAWYER

Maricopa County Attorney Bill Mont- gomery explained that his office evaluates the totality of a criminal file, considering an admission as only one factor in determining whether to pursue a prosecution. By using this type of holistic approach, his office The Official Publication of the focuses on pursuing those cases that truly Maricopa County Bar Association warrant a conviction. Maricopa County Superior Court Judge The mission of the MCBA is to serve Paul McMurdie, who spent several years its members, the legal profession, the judicial system and the public. on the criminal bench after his career as Celebrating Law Day 2016 a criminal lawyer, offered perspectives on EDITORIAL BOARD vulnerable defendants — such as juveniles Aaron Nash, Chair Prior articles in this publication have before handing the presentation over to our — to demonstrate that the system is much Clerk of the Superior Court’s Office addressed Miranda v. Arizona, 384 U.S. 436 panel moderator, Arizona Court of Appeals improved but remains imperfect. These im- Justin M. Brandt (1966), which officially turns 50 on June 12, (Div. 1) Judge Patricia K. Norris. perfections create a challenging landscape to Bauman Loewe Witt & Maxwell, PLLC 2016. On May 4, the MCBA presented a Norris appropriately sprinkled levity into decide whether ambiguous language properly Kaitlyn Carr panel discussion elaborating on the impact this serious topic, supported by panelist invokes a protected right. ASU Student Rep of Miranda on present-day criminal proceed- quips. Her questions provoked insightful Assistant Chief for the City of Phoenix Brian E. Cieniawski ings in conjunction with Law Day 2016. discussion that centered on present efforts Police Department Michael Kurtenbach Bremer Whyte Brown & O’Meara, LLP Arizona Supreme Court Chief Justice to ensure criminal suspects and defendants stressed the amount, quality and style of training given to city of Phoenix police of- Amanda E. Heitz Rebecca Berch (ret.) kicked off the event, receive a fair criminal process. Bowman and Brooke, LLP providing opening remarks and introduc- I was encouraged to hear Jeffrey Wil- ficers, all of which is designed to help law ing our esteemed panel. Robert McWhirter liams from the Office of the Federal Public enforcement find the truth during the course Tamara Herrera of a criminal investigation. He acknowledged Clinical Professor of Law, ASU Sandra Day (ASU Alumni Law Group) set the historical Defender concur with other panelists that O’Connor College of Law stage with a brief, yet entertaining, histori- certain law enforcement agencies have be- the vast challenges our officers face during cal presentation reaching as far back as the come increasingly transparent in their crimi- their inquiries, including language barriers Jason A. Houston and cultural hurdles, that prevent officers Kern Valley Mediation Center Fourth Century A.D. addressing the reli- nal investigation techniques. For example, gious, cultural and other pressures that led to Williams expressed that in his experience from receiving the benefit of a free flow of Douglas Lowden information from suspects and witnesses — Anmm, LLC the inclusion of the Fifth and Sixth Amend- the FBI routinely records its interrogations, ments into the Bill of Rights. McWhirter thereby enabling defenders, prosecutors, all while facing the threat of physical harm Max Mahoney that always looms when officers don their Berkshire Law Office, PLLC then explained a bit of the societal and judges and, perhaps most importantly, juries political environment that influenced several the opportunity to observe the defendant uniforms. He also nicely tied the concept Jamie L. Mayrose important pre- and post-Miranda decisions during police questioning. of law enforcement transparency by briefly Rader Mayrose, LLP discussing, from his perspective, how officers Amber Pershon evolved to their current general support of Law Clerk, Arizona Court of Appeals A Small Donation Makes a Big Difference the use of body cameras. Daniel P. Schaack Among many other takeaways, I recognize Assistant Attorney General, State of Arizona Arbitration Fee Donations Help our panelists as models in our community. Riley S. Snow Partnering with the Maricopa County Superior Court, the Maricopa County Bar Foun- They all recognized our criminal justice Law Office of Riley S. Snow, PLC dation (MCBF) is once again encouraging attorneys assigned to arbitration to donate system continues to require improvements, Norma J. Franco the $75 fee to the Foundations’s fundraising efforts. but they all work tirelessly to ensure that they 2015 Paralegal Division Rep perform their specific role in a manner that NJFranco and Associates, LLC It’s Easy to Contribute protects citizens. The Miranda Warning is Stan Watts The court has made it easy to contribute with a convenient “pro bono” check-off box part of the fabric of our everyday existence, Dohrer & Watts, PLC located at the bottom of the Invoice in Support of Request for Warrant, a form pro- saturated nearly to the point of complete di- lution through repetition in television shows Travis M. Wheeler vided in your arbitration packet. For more information, go to maricopabar.org and click Bowman and Brooke, LLP on “About Us” on the top menu bar then “Maricopa County Bar Foundation.” and movies. Some perceive this overuse as a negative, preventing those who most need Ex-Officio Members Thank you for making a difference! the Miranda Warning’s protection from com- Karen Arra prehending how, when or whether to invoke. Director of Media Relations Through Law Day 2016 activities, your bar Superior Court of Maricopa County association is actively informing (or remind- MCBA President Law Day at the MCBA ing) our community about the constitutional amendments protected by Miranda. Kyle Hirsch Law Day 2016 celebrated the Bryan Cave Personally, and on behalf of the Maricopa 50th anniversary of Miranda v. County Bar Association, I wish to express my Editor Arizona. To commemorate this Mindy Haskins landmark case, a free panel dis- thanks to the panelists and presenters who The Maricopa Lawyer is published monthly on cussion was held on May 4 at the delivered a fantastic experience to the audience; the first of each month and mailed to members of and to those whose behind-the-scenes efforts the Maricopa County Bar Association, 303 E. Palm MCBA building to discuss the Lane, Phoenix, AZ 85004-1532. Please send address role of the Miranda Warning in (including, but not limited to: Cari Gerchick, changes to the MCBA at the above address or to Laurie Williams and the entire MCBA staff) [email protected] or (602) 257-4200. our history and actual practice. The MCBA website is at www.maricopabar.org and made this wonderful event possible. pdf copies of past issues are available for viewing. The MCBA continues to find ways to add Please send editorial submissions to Mindy Haskins value for its members and the community at [email protected]. The editorials and other views expressed in the Maricopa Lawyer are — and our Law Say 2016 panel is one of not necessarily those of the Association, its officers many examples. As you likely know, June or its members. Advertising rates and information MCBA Board Member Hon. Julie LaFave (left) and 30 marks the end of the year for obtain- are also available from Karla Durazo at kdurazo@ Cari Gerchick. maricopabar.org or (602) 257-4200. ing the Continuing Legal Education credits required for Arizona-licensed attorneys. We GIVE US YOUR OPINION have a variety of live and online CLE-eligible The Maricopa Lawyer welcomes letters to the editors or opinion pieces for publication. Letters and programs that you can find by visiting www. opinion pieces should be typed and preferably maricopabar.org. submitted electronically. Opinion pieces are limited to 1,500 words and letters to 700 words, and the In addition, please let us know how you’d editors reserve the right to reject submissions or like to become more involved, such as (for condense for clarity, style and space considerations. illustrative purposes only!) proposing future Letters must be signed to verify authorship, but names will be withheld upon request. Authors of CLE topics that are interesting to you. opinion pieces will have their names published. Without your feedback, we can only hope to Letters and opinion pieces should be mailed to: MCBA editor, Maricopa County Bar Association, achieve what you want your MCBA to be; 303 E. Palm Lane, Phoenix, AZ 85005-1532. Panelists, from left: Robert McWhirter, Chief Justice Rebecca White Berch (Ret.), with your participation, we build lawyers Phone: (602) 257-4200 Fax: (602) 257-0405 Bill Montgomery, Hon. Patricia K. Norris, Mike Kurtenbach, Jeffrey A. Williams into leaders because our community needs Email: [email protected]. and Hon. Paul McMurdie. us to lead. n MARICOPA LAWYER JUNE 2016 • 3

Leah Pallin-Hill Mediation & Arbitration Services, PLLC

n Former Superior Court Commissioner/Judge Pro tem

n 97% + settlement rate in over 1500 cases

n Personal injury and other civil matters including Pro bono service comes in all forms family disputes Serving the underserved is something I family law attorneys with at least five years of strive to do regularly. I do it because I be- practice in Arizona provide advice and brief 2375 E. Camelback Rd., Ste. 600, Phoenix, AZ 85016 lieve having a law license is a great privilege, services to unrepresented litigants in family and that we all have a duty to give back. I law cases. The program offers educational 602-387-5323 n [email protected] do it because it feels good. I do it because it events and 30-minute consultations free of www.leahpallinhill.com was a pillar of my law school. Perhaps, most charge to those who meet financial eligibility importantly, I do it because there are so requirements (a $40 fee applies otherwise), many deserving people in need of assis- but does not include document preparation Celebrating 13+ years in private practice! tance they simply cannot afford. services or representation in court. The good news: There are numerous op- Serving on nonprofit boards can be portunities to serve the underserved! Here yet another way to serve the underserved. are a few of my favorites, many of them The MCBA’s Young Lawyers Division, for courtesy of the Volunteer Lawyers Program instance, participates in numerous com- (VLP) — a joint project of Community munity service events throughout the year, Legal Services and the Maricopa County some of them legal and others non-legal Bar Association: (for example, the Necessities Drive). The 1. The Financial Distress Clinic YLD is also working on a plan to offer legal provides advice to individuals and families clinics to the public on various topics such seeking counsel about debt management as student loans and grandparents’ rights. or defense/settlement of creditors’ claims, Lastly, a few random suggestions: St. both in and out of court. Often times the Mary’s Food Bank (www.firstfoodbank. individuals seeking guidance are judgment org) is always in need of volunteers to pack proof and living on strict and modest boxes of food for families in need. Circle income from only Social Security; they the City (www.circlethecity.org) distributes merely need assistance in understanding Kindness Kits to homeless persons to their rights. VLP sponsors this clinic, which raise awareness regarding medical services takes place on weekday evenings, typically at offered and for The Parsons Family Health the Maricopa County Bar Association. Oc- Center. They accept items to include in casionally, a bankruptcy filing is imminent the Kindness Kits, such as water bottles, and the clinic gives the attorney and VLP a granola bars, lip balms, toothbrushes, better opportunity to screen for those with toothpaste, sunscreen, etc., or you can host the greatest need so they can be placed with a Kindness Kit making party and donate a volunteer attorney. Experienced attorneys, the completed kits. Finally, the Welcome to Start Here. including founding volunteers David Engel- America Project (www.wtap.org) provides man, Esq., and Cody Jess, Esq., are present a broad array of volunteer options, includ- to ensure everything runs smoothly, but less ing organizing storage units, sorting and experienced attorneys are also encouraged packing boxes for delivery, and delivering Go Anywhere. to participate. As an added bonus, this clinic furniture and household items to new refu- is a great way to be a mentee for an evening gee families. and see what it’s all about. Although I have discussed a number Paralegal Studies Program at 2. The Self-Help Center at the U.S. of volunteer opportunities above, I do Bankruptcy Court provides assistance recognize they are mostly focused on bank- Phoenix College to those who cannot afford to pay for ruptcy and other financial issues (because legal services. Individuals can meet with that is my area of practice). Rest assured, Train to become a paralegal in a program knowledgeable bankruptcy attorneys for 20 VLP and the YLD have numerous other that offers quality instruction with real world minutes, free of charge. At the Self-Help programs and community services you can applications. Center, individuals can get legal advice get involved with that are more aligned with and information as well as the forms they your particular area of practice, including • ABA-Approved need to file. Before meeting with a volun- some that are not focused on any particular • Day and evening courses teer attorney, individuals must watch an area of practice. • Affordable tuition informative video with general information If you want more information about any • Fully accredited about bankruptcy and complete an online of the above, or about the Young Lawyers • University transfer options questionnaire. The center is also staffed Division, feel free to email krystal.ahart@ • Experienced attorney and paralegal with regular employees who cannot provide bankruptcylegalcenteraz.com. n instructors legal advice, but they can answer general • Financial aid available for those who qualify questions about forms and procedures. • Conveniently located near the downtown 3. The Friend of the Court Reaf- legal community firmation Program allows lawyers with at Stay social with least five years of experience in consumer Call (602) 285-7777 or email bankruptcy law to mentor law students and the MCBA serve with them in the U.S. Bankruptcy [email protected] Court. The lawyer/law student team helps unrepresented petitioners understand their Like us on Visit us at options and address the court to assist Facebook.com/maricopabar www.phoenixcollege.edu/legalstudies the judge in understanding the petitioner’s current circumstances (see my article in the 1202 West Thomas Road PC Downtown Phoenix, AZ 85013 640 North 1st Avenue MCCCD is an March 2016 issue of Maricopa Lawyer for www.phoenixcollege.edu Phoenix, AZ 85003 EEO/AA institution. follow us on 602.285.7800 602.223.4051 more information about this program). Twitter @maricopabar GO FAR, CLOSE TO HOME. 4. Another VLP program is the Family Chandler-Gilbert Community College • Estrella Mountain Community College • GateWay Community College • Glendale Community College • Maricopa Skill Center • Mesa Community Law Assistance Project (FLAP), where College • Paradise Valley Community College • Phoenix College • Rio Salado College • Scottsdale Community College • South Mountain Community College • SouthWest Skill Center 4 • JUNE 2016 MARICOPA LAWYER

ion, especially if it will affect the outcome of or paralegal counterpart. a case. Attorneys should look for a paralegal Our June board meeting will take place at the who possesses those talents and strengths MCBA office on Monday, June 13, 2016, at 5:30 which they may lack as this will enhance the p.m. and is open to all members and those interested relationship. Communication is key and there in joining the division. Our second quarter Paralegal should be a continuous dialogue between the Happy Hour will take place at Yard House at two to maintain the relationship. A paralegal Westgate City Center on Tuesday, June 21, 2016, should be an extension of the supervising at 5 p.m. Come join us and bring a friend! n attorney when dealing with clients and op- posing counsel. Paralegals should constantly remind (or, as my boss says, “nag”) their 2016 Paralegal The dynamic of the ideal attorney about upcoming events and dead- lines and get any questions answered early Division CALENDAR to avoid the stress of a last-minute project, attorney-paralegal team which can undermine the relationship. June 1-July 29 As a paralegal who has worked with the who are familiar with Arizona law, the ins- There should be a mutual respect be- Summer Backpack Drive same attorney for over 17 years, I speak and-outs of the court system, and the local tween the two, with the paralegal supporting (MCBA office) from experience when I tell you about the rules. Attorneys with more experience can the attorney’s professional endeavors and importance of the bond paralegals form look for someone who can be trained and achievements, and the attorney, in turn, sup- June 13 with their attorneys. While this coupling can molded into their personal style. porting the paralegal’s desire to increase their sometimes seem like a marriage, with both Attorneys and paralegals should also be knowledge of the law and join legal profes- June Board Meeting good and bad moments, it is important for on the same page when it comes to the law. sional associations. Not every attorney-para- (MCBA office) paralegals and attorneys alike to understand It is OK, however, for them to have differing legal team will be this strong and harmoni- what constitutes the ideal attorney-paralegal opinions outside of their work relationship. ous, especially in the beginning. It can take June 21 team and to strive for that connection in a Having a sense of humor adds to the bond years to develop such a bond and, often Paralegal Happy Hour – work partnership. and allows them to have a good rapport. times, people move on to other firms before Yard House First and foremost, there has to be chem- They should be able to see the funny side this process can solidify. But if you are lucky (Westgate City Center) istry between the attorney and paralegal. of things that may happen in the course of enough to find someone who wants to be Without this, there is no foundation on their caseload. with you for the long haul, whether you are October 14 which to build the relationship. They should While the partnership should be more the attorney or the paralegal in the relation- 17th Annual Arizona Paralegal be in sync stylistically and in how they ap- positive than negative, it isn’t necessary for ship, treasure that bond and do what you can Conference (Desert Willow proach things legally. Younger attorneys them to agree on everything. A paralegal to preserve it as you will never find a better Conference Center) should look for more experienced paralegals shouldn’t be afraid to voice his or her opin- champion for your cause than your attorney

E S S E L C H M I O L D H Food bank pack and sort event R

R E

O N St. Mary’s Food Bank is the world’s first F food bank. Founded in 1967 by John van Hengel, it provided 250,000 meals during its opening year. Today, it serves that num- F O N ber of meals per day. On Saturday, April 23, U I O N D A T the Paralegal Division jointly hosted a pack and sort event with the Young Lawyers The Paralegal Division is conducting a summer backpack Division at St. Mary’s Food Bank. We had drive to benefit the Real Gift Foundation, which assists over 20 volunteers join us as we processed more than 18,000 homeless children attending schools 65 bins of cabbage and placed over 14,500 pieces of cabbage in boxes that will be giv- throughout Maricopa County. en to approximately 1,650 families in need. n Special thanks to Jennifer, Erica and Danny To these children, your donation is more than just a backpack — it’s their at St. Mary’s Food Bank, who worked with closet. Please feel free to get your family, friends, neighbors and our group. n co-workers to team up and donate to this worthy cause. n Backpacks will be collected at the Maricopa County Bar Association, located at 303 E. Palm Lane in Phoenix from June 1, 2016 to July 29, 2016. n If you have any questions or wish to schedule the pick-up of a large donation, please contact Tina Ziegler at either (602) 881-4902 or [email protected]. MARICOPA LAWYER JUNE 2016 • 5 What is that public lawyer doing in our court? Some directions reers of most have also included the pri- “e-file” stamp on the outside of the folder vate sector before their appointment to the to alert customers that the case contained on directions bench. This diversity of practice and expe- both paper and electronic records. In 2007, riences enhances the bench’s connection to the Arizona Supreme Court designated the the lawyers and litigants who interact with digital image of records as the official record our court every day. For more information of the superior court in Maricopa County, on judges, commissioners and their specific effective retroactively to cases that were requirements or preferences in their divi- scanned between 1/1/2002 and 1/1/2007. sions, see the court’s website at http://www. Public lawyers on the benches In calendar year 2015, the county at- superiorcourt.maricopa.gov/JudicialBiogra- torney’s office e-filed more than 87,000 If you’ve appeared before a judge in phies/Index.asp. the superior court in Maricopa County, the criminal case documents. The clerk’s of- Occasionally, I run across a grammar or odds are pretty good he or she worked for Public lawyers in the trenches fice and superior court combined to e-file style issue when I least expect it. I was re- a public agency at some point in their ca- Public lawyers were among the earliest more than 150,000 administrative notices, cently writing an article about an attorney who had moved south from Alaska. And I reer. Superior court judges have been: city, adopters of eFiling and continue to have orders and process in criminal cases. The was stumped. Should I capitalize the word county, state and federal prosecutors; public the highest volume of electronic filings in repository of electronic court records now superior court. Eleven years ago in 2005, “south”? Is she now a “southwesterner” or a defenders; executive and legislative branch contains more than 52 million documents the clerk’s office launched its criminal eFil- “Southwesterner”? As an environmental law staff; professors; law clerks; staff attorneys across all case types. ing pilot program in the DUI courts and practitioner, I wrote about directions all the to public agencies and courts; public inter- At a time when the clerk’s office was in in one trial division. The Maricopa County time. But now I was questioning whether I was est nonprofit lawyers; tribal prosecutors; danger of running out of space to store pa- Attorney’s Office built an electronic filing per, public lawyers were on the front lines really directionless and just capitalizing terms administrative law judges; Judge Advocates when they looked right to me. Following are interface that allowed them to submit docu- of creating and coordinating the systems, General; and elected and appointed officials. ments directly to clerk staff for review and the most common rules about capitalizing the processes and authority that would allow Their practices in city, county, state and fed- processing. words north, east, south and west. the digital abilities in place today. Public eral agencies include broad practice areas The county attorney’s first e-filing sys- 1. When using the word as a direction, keep like criminal, civil, juvenile, elections and tem required extensive building, program- lawyers practiced, tested and adapted to the word lowercase. This rule means my other legal specialties. ming, and testing for this new way of doing new technology in the early days. Some of capitalization of the word “south” in Not counting the dozens of commis- business. The superior court issued an ad- those lawyers were later appointed to the the second sentence above is correct sioners and attorneys who practice in su- ministrative order establishing the pilot pro- bench, where they inspired practitioners (whew!). perior court as judges pro tem, 71 of the gram, defining terminology, establishing the and judges alike to adopt the new frontier 2. When using the word to indicate a re- 97 judges on the court’s website list some format for electronic signatures and autho- of legal practice. So, regarding the title of gion or area, capitalize the word. One form of public service legal experience in rizing the electronic image as the official re- this article, the question isn’t what are pub- test to check if the usage is a region, try their work histories. Some judges worked cord. Paper case files were still maintained in lic lawyers doing in the courts — it’s what putting the word “the” in front of the exclusively in the public sector but the ca- 2005 and e-filing-eligible cases had a green haven’t they done? n direction word: the Southwest. 3. When using the word to describe a per- son, there is no uniform rule. Some style Lawyer Referral Service guides say to capitalize the word, while others say to leave it lowercase. My ad- Needs You vice is to be consistent throughout the document. I have also found it helpful to Potential clients can be yours with the know what my audience expects by first MCBA Lawyer Referral Service. The LRS receives more than 100,000 calls per seeing if that audience follows a certain year from people seeking legal assistance style manual. If not, I try to read prior as well as attorneys referring clients documents, if available, and take their outside their practice area. lead on how to capitalize words. Among the areas There are two other related capitalization rules that are worth mentioning here too. First, needing coverage are: administrative law, common region names are usually capitalized: Valley of the Sun, Twin Cities and Sunshine SSI-SSD/Medicare law, State. Second, season names (spring, summer, workers’ compensation, fall and autumn) are used in lowercase unless and immigration. those words are used as part of a proper noun, Spanish-speaking and West Valley such as the Rio Summer Olympics. The trick is attorneys are especially needed. to remember that if the word is just an adjec- tive, but not part of a proper noun, to keep the It’s easy to join! word lowercase: summer sports, spring break Call Jennifer Deckert at (602) 682-8590 and fall schedule. n COLLECT THOSE JUDGMENTS! Get them out of your files and generate revenue Let an AV Rated Attorney with 30 years of experience handle them for you Get help collecting past due child support and delinquent spousal maintenance 6 • JUNE 2016 MARICOPA LAWYER also applies in representations where parents or ly-represented clients are both clients. That employers pay for you to represent their children may sound obvious, but oftentimes lawyers or employees. fall into the trap of favoring one client over A couple of tips. First, you always need the the other if one client is a long-term client or & client’s informed consent to this arrangement. is paying the legal fees. Third, there is no priv- Second, you must keep information confiden- ilege or confidentiality between the clients. Q A tial under ER 1.6, even from the third-party You have equal duties of communication to Lawyer Liability and Ethics payer, unless the client consents to disclosure. all jointly represented clients. Fourth, each cli- Third, you can never allow your relationship ent can waive the attorney-client privilege or with the third-party payer to affect your rep- confidentiality as to everyone. Fifth, if a con- Three quick reminders resentation of the actual client. Remember, to flict develops during the representation, you the client (not the individual paying your fees) may be required to withdraw as to all clients, By Russell Yurk you learn from them generally is confidential you owe your ethical duties. Fourth, you must even if one of the clients is a long-term cli- (except for disclosures allowed by ERs 1.6 and receive the client’s authorization to any settle- ent of yours. Sixth, aggregate settlements in- This month’s column 1.9). Once you form an actual attorney-client re- ment (see ER 1.2) regardless of any contract volving multiple clients require the informed focuses on a few issues on lationship, it is vital that you provide an engage- between the client and the third-party ceding consent of each client, in a writing signed by which I recently advised oth- ment letter pursuant to ER 1.5. Remember, the that right. Finally, remember to send an en- the client. Client differences regarding settle- er lawyers. It made me real- scope of representation and the basis/rate of gagement letter that includes discussion of the ment offers can often lead to difficult con- ize that it may be time for a fees must be communicated to the client in writ- third-party payer relationship and will verify flicts for the lawyer. Finally, these issues must Russell Yurk few quick reminders regard- the client’s informed consent, to the actual cli- ing. If you decide to not represent a potential be discussed with each client in enough detail ing clients, engagement let- ent on every case. It’s required. or prospective client, you should send a declina- to allow them to give informed consent to the ters and related conflicts issues. The practice of joint representation before the representa- law is busy and sometimes lawyers lose sight of tion letter. Finally, when a representation ends, Multiple-client (or joint) representations you should sent a letter advising the client that Multiple-client (or joint) representations tion begins. I strongly recommend that you these ethics issues. That’s why law firm policies include most of these issues (and the client’s and procedures are so important. you no longer represent them and remind them raise significant conflict of interest issues that about your file-retention policies. the lawyer must fully analyze and then discuss informed consent) in your engagement letters Identifying the client with each client before finalizing the repre- to the jointly represented clients. You cannot My columns repeatedly discuss this issue be- Third-party payers (insurance defense) sentation. See ER 1.7 cmts. 28-32. I discussed represent any client that does not consent to cause it is so fundamental and relates to almost A conflict of interest exists every time that this topic in a two-part article in fall 2014, but the joint representation. n someone other than the client pays your fees. every ethical dilemma. The point that I want to I want to reiterate seven of the most impor- Russell Yurk is a partner with Jennings, Haug & make this month is to make sure that you prop- ER 1.8(f), ER 1.8 cmts. 11-12. The conflict tant points again. First, you need to consider Cunningham, LLP, in Phoenix. His practice focuses on erly identify your clients. A prospective client arises because of the danger that loyalty might potential conflicts between the clients. Will professional liability, lawyer discipline and complex civil (ER 1.18) needs to understand that you can- be greater to the source of the lawyer’s business they testify differently on material facts? Do litigation. If you have a question about ethics or lawyer not engage in an attorney-client representation rather than the client. This conflict applies pri- they have different interests or objectives of liability that you would like addressed in future columns, before clearing conflicts, but that information marily to insurance defense arrangements, but representation? Second, remember that joint- please email [email protected]. CLE review: The Rules of Evidence and Family Law By Jason A. Houston opposing counsel or prepare for objections ahead of time. Asking for a pre-trial ruling The Feb. 18 CLE titled on the admissibility of any documents that “The Rules of Evidence involve complex issues will give the judge and Family Law” was time to consider those matters prior to trial. presented by Charles Trul- Make sure the number or letters on your linger and Russell Wenk evidence at trial matches those on your Jason A. and focused on significant exhibits. Houston facets of rules of evidence n Use of deposition transcripts. At a trial and important recent or hearing, any or all of a deposition may changes in family law practice. Among the be used against any party who was pres- broader topics covered: ent or represented at the taking of the n Relevance and reliability. Testimony and deposition, and who had an opportunity evidence have to be relevant. All relevant to develop the testimony by direct, cross evidence is admissible, however, the court or redirect examination. Once a deposi- must exclude any evidence whose proba- tion is deemed admissible, specific portions tive value is outweighed by unfair prejudice, may still be found inadmissible on grounds confusion, delay, lack of reliability or failure applied as though the witness were present to timely disclose. and testifying. The transcript itself is not n Expert testimony. New Rules 702-706 admitted, but testimony from the transcript went into effect in 2012 and provide tighter is admitted by reading the non-objection- oversight with respect to testimony from able portions into the record. The opposing expert witnesses. The biggest change is the party may designate additional portions that requirement that the expert testify as to the ought to be considered together with the principles and technologies used to arrive at parts introduced. their opinion, and that those are recognized n Applicable rules of family law proce- in their fields as reliable. dure. Notwithstanding the procedures n Common objections. Typically, objections outlined above, family law is also condition- at depositions are limited to form, founda- ally governed by the Arizona Rules of Civil tion and privilege. There are other forms of Procedure. objections, but they are limited to specialty A warm thank you to the MCBA Fam- cases, usually medical malpractice. ily Law Section and to the presenters for this n Getting documents admitted under highly informative seminar. n the rules. Timely disclose all documents you intend to offer at trial. If you bring in Jason Houston is a family court mediator and new documents at the last minute, don’t civil arbitrator in private practice and serves on the count on them being admitted. Consider all California State Bar’s Mandatory Fee Arbitration possible objections well in advance of trial, Panel. He is a member of the Maricopa Lawyer so you can either reach an agreement with Editorial Board. MARICOPA LAWYER JUNE 2016 • 7 Hall of Fame Nominations Sought for 2016 Throughout its history, Maricopa County has been blessed with extraordi- nary lawyers dedicated to the improvement of the legal profession and the lives Hall of Fame Inductees 2008-2015 of its citizens. Many of those attorneys have also served in leadership roles in PIONEERS the Maricopa County Bar Association. (all deceased) The MCBA created the Maricopa County Bar Hall of Fame in 2008 to Dr. John Alsap Amelia Dietrich-Lewis Hon. Joseph Kibbey Hon. Richard E. Sloan recognize and thank in some small way these true giants of our profession. To A.C. Baker Rafael (Ralph) Hon. A.D. Lemon Hon. Rawghlie Stanford date, 125 attorneys have been inducted. In 2016, we again seek nominations to Alice Birdsall Carlos Estrada Anita Lewis George J. Stoneman represent the broad diversity of the legal profession in Maricopa County. Frank Haze Burch Herbert B. Finn Hon. Ernest W. Lewis Hon. Frederick C. Charles A. Carson, Jr. Greg Garcia Hon. Frank H. Lyman Struckmeyer, Sr. Hall of Fame Criteria Hon. Raul Castro Hon. William Hancock Hon. Ernest McFarland Calvin Udall The Maricopa County Bar Hall of Fame will recognize Maricopa County Louis Chalmers Richard F. Harless Wing F. Ong Philip Von Ammon attorneys who have practiced for at least 10 years and who have: Jubel Early Craig Leon S. Jacobs Hon. John C. Phillips n Played prominent and important roles that have had an Hon. Walter E. Craig Edward Kent Francis J. Ryley impact on the history and development of our local bar and the legal profession; MODERN ERA n Made significant or unique contributions to the law or the Hon. Rebecca Albrecht John P. Frank* H. Jerry Lewkowitz Hon. Ron Reinstein administration of justice; and/or Jerry L. Angle Susan Freeman Hon. Lorna E. Philip A. Robbins n Demonstrated significant leadership, advocacy and accomplishments in Charles (Chick) Arnold Hon. William P. French* Lockwood* Paul M. Roca* service to the community or the profession. Bruce Babbitt Michael L. Gallagher William J. Maledon Elias M. Romley* You are invited to re-submit a nominee from a previous year with complete Roxana C. Bacon Hon. John Gemmill Alan A. Matheson David Rosenbaum information as noted below. Peter D. Baird* Patricia Gerrich Daniel J. McAuliffe* Hon. Michael Ryan* Hon. Scott Bales Samuel P. Goddard, Jr.* Hon. James E. McDougall Hon. Mary Murphy Submission Requirements Hon. Rebecca Hon. Frank X. Gordon, Jr. Joseph E. McGarry Schroeder n Full name of nominee, including date of birth (and death, if applicable) White Berch Hon. Robert L. Gottsfield Hon. Ruth V. McGregor Richard A. Segal* n A brief statement or summary of nominee’s significant qualifications and Hon. Charles C. Larry A. Hammond Patrick J. McGroder III Kenneth J. Sherk achievements and specifically how they meet the Hall of Fame Criteria. Bernstein* Mark I. Harrison Hon. Stephen M. Frank L. Snell, Jr.* (About 100 words or less.) Don Bivens William F. Haug McNamee Hon. Roxanne Song Ong n The committee relies A detailed biographical description of nominee. Hon. Robert A. Hon. Robert D. Myers Charles T. Stevens* on the information supplied by the nominator(s), so comprehensive Hon. Michael Daly Broomfield Hawkins Hon. Janet Napolitano Harvey E. Streich* information is important. John J. Bouma Ed Hendricks, Sr. Hon. Patricia K. Norris Gary L. Stuart n A photograph (preferably in color), submitted in electronic jpg format Robert W. Browder Hon. Sandra Day as an attachment to email, if available. Tom Henze Hon. Thomas Tang* Jack E. Brown* Timothy Hogan O’Connor Hon. James A. Teilborg Where to Submit Nominations Jose A. Cardenas Hon. Andrew Hurwitz Kevin O’Malley Hon. Ann A. Please submit your nomination by mail or email to the address below. Walter Cheifetz Edward “Bud” Jacobson* Van O’Steen Scott Timmer Complete information is also available on the website at www.maricopabar. Hon. Valdemar A. Cor- Curtis A. Jennings* Frank A. Parks David K. Udall org/halloffame. dova* Lillian Johnson Willard H. Pedrick* Ted F. Warner Deadline for submission is July 12, 2016. Daniel F. Cracchiolo William R. Jones, Jr. Hon. Cecil B. Patterson, Jr. John H. Westover* Submit nomination forms to: Laurie Williams, Hall of Fame Maricopa Harry J. Cavanagh, Sr.* Michael K. Kennedy Hon. Robert W. Pickrell Hon. Jean Williams* County Bar Association 303 E. Palm Lane, Phoenix, AZ 85004-1532. Hon. Hayzel B. Daniels* Sen. Jon Kyl Hon. Maurice Portley Mark Wilmer* Phone: (602) 257-4200 Email: [email protected]. Paul F. Eckstein Orme Lewis* Hon. William H. Charles (Chas) Wirken Incomplete applications will not be considered. Hon. Elizabeth Finn Rodney B. Lewis Rehnquist* John J. Flynn* * Deceased Maricopa County Bar Hall of Fame 2016 nomination form In order for nomination to be considered, this form must be filled out.

NAME OF NOMINEE ______(include birth date and date of death, if applicable): 1. Please attach a detailed biographical description of nominee 2. Please write a brief statement or summary of nominee’s significant qualifications and achievements (100 words or less) here, or attach it to this form as a separate document:

______*The selection committee relies upon the detailed bio to make a decision. Also separately, please send a photograph (optional) in jpg format, as an attachment to email. NOMINATION SUBMITTED BY Name:______Firm/Employer:______Address:______City:______State:______Zip:______Telephone:______E-mail:______DEADLINE FOR SUBMISSION IS JULY 12, 2016 Submit to: Laurie Williams, Hall of Fame, Maricopa County Bar Association, 303 E. Palm Lane, Phoenix, AZ 85004-1532. Email: [email protected] n Phone: (602) 257-4200 n Website: www.maricopabar.org/halloffame 8 • JUNE 2016 MARICOPA LAWYER

OFFICE SPACE AVAILABLE Mesa, AZ - 5,532 SF Office configured for a single tenant. 10 private offices with class “A” luxury upgrades featuring superior finishes, custom iron doors, arched doorways, built-in-cabinets, granite desks and counter tops, travertine flooring, chandeliers, kitchen, conference room with flat screen TVs with or without full-service copier, telephone system and high-speed cable modem.

It will impress you and your clients. Visit www. galleryPlazaAz.com for photos

Please call 602-380-8080

I THE NATIONAL ACADEMY OF DISTINGUISHED NEUTRALS BERK LAW GROUP ATTENTIONATTENTION LITIGATIONLITIGATION FIRMSSTAFF The firm has changed its name from Berk & Moskowitz, P.C. in light of the departure of Frank W. Moskowitz to become a Maricopa County Superior Court Judge. ARIZONA’SARIZONA’S PREMIERPREMIER CIVIL-TRIALCIVIL-TRIAL MEDIATORSMEDIATORS && ARBITRATORSARBITRATORS AVAILABILITYAVAILABILITY DATESDATES NOWNOW ONLINEONLINE ATAT Advertise in the Maricopa Lawyer and reach more www.AZMediators.orgwww.AZMediators.org than 3,500 attorneys and other legal professionals. Call (602) 257-4200.

THE 2016 MCBA ANNUAL MEETING AND MARICOPA COUNTY More Law Firms HALL OF FAME Trust Us with their Luncheon Legal IT Needs. tHURSday, Oct. 27, 2016 HYATT REGENCY PHOENIX 11:30 A.M. Registration and Networking Noon-1:30 P.M. Secure Luncheon and Meeting/Hall of Fame Induction Legal IT Done Right 602-412-5025 | totalnetworks.com/legal MORE INFORMATION TO COME Dave & Stephanie Kinsey, Total Networks Owners MARICOPA LAWYER JUNE 2016 • 9

What do you like most about factory, gas station attendant, planting trees being in the legal field? for BLM, helping on the ranch, changing MEMBER SPOTLIGHT irrigation pipes, washing dishes … the In the area of divorce and family law, list goes on. My father did not believe in one has to enjoy working with clients on MEET William D. Bishop summer vacations. The craziest job, and a very personal level. On many occasions probably the most rewarding, was working it can be very rewarding, especially when with emotionally disturbed adolescents you have helped your client obtain a bishop law office, pc while I was in college in a group-home result that is in the best interests of the Divorce and Family Law setting and as a part-time special-education children, and/or obtain a result that teacher for the children at their school. The will help your client make the transition MCBA member since 1990 kids I worked with were dealing with a lot to the next phase of their life. If a very of difficult issues and could go through professional attorney is on the other side, What are your hobbies or most recent vacations have dramatic behavioral changes in an instant. it can be very rewarding to work together interests? included a 10-day scuba trip The emotions were so raw, and the children toward a mutually beneficial result. The Many of my hobbies and off the Galapagos Islands were so genuine. There is no end to the stories that came from that job. most enjoyable part of the job is when I interests involve outdoor and to Western Europe. This summer will include can help settle a case without substantial activities. I snowboard, If you were a character in a movie or TV Argentina, where my litigation. waterski, mountain bike, daughter will be attending show, which character would you be? scuba dive and love many If you weren’t a lawyer what the university for a semester. I would pick one of the characters from other outdoor pursuits. My “The Breakfast Club.” I have always wanted would you be? older daughter enjoys many What’s the craziest job to leave the law at the office and not let I would probably have completed school of these activities with me. you’ve had? the job identify me. The characters from in international business, and hopefully I love to travel to locations Before college, I can’t the movie were in the process of learning would have started a business that involved where I can enjoy some even begin to count the that they could break away from their substantial travel, living in various countries of these activities while also taking in odd jobs that I had. Hoeing onions in the environment, sport, clique, etc., and just be and getting to know many different cultures. the culture of the country or region. My fields, working in a cement factory, a trailer themselves.

Founded in 1873, Bryan Cave LLP (www.bryancave.com) has a diversified international legal practice. The firm represents a wide variety of business, financial, institutional and individual clients, including publicly held multinational corporations, large and mid-sized privately held companies, partnerships 100% Club and emerging companies. Aided by extensive investments in technology, Bryan Cave’s more than 1,000 attorneys across Member the United States, the United Kingdom, Continental Europe Spotlight and Asia serve clients’ needs in the world’s key business and financial markets.

Cohen Kennedy Dowd & Quigley was born in 1991 with Honoring the a clear vision of its present and future professional profile. MCBA’s 100% We will specialize in complex commercial litigation. We will embrace the toughest cases and the most interesting, Club Members demanding clients. We will hire only top law students who and the can play in the street. Sound, practical judgment will be our difference theme and our reputation. We will be a small, boutique law firm. We will know each other. We will respect each other and they make our profession. We will love and cherish our families. We will within the legal recognize our ethical responsibilities while we exercise every bit of our fabric to benefit our client. We will win. That was community. then. That is now.

Community Legal Services is a non-profit Arizona law firm If your firm has that strives to assure fairness in the justice system no matter 5 attorneys or more how much money you have but provides direct services to and is interested in individuals falling below 125% of the federal poverty level. We “Equal Justice For All” becoming a 100% Club were incorporated in 1952 as a legal aid program organized COMMUNITY to promote “equal access to justice for all.” Member contact Cynthia Quinonez at Community Legal Services is committed to eliminating poverty- based inequities in the civil justice system by providing high- [email protected] quality legal advice, advocacy and assistance to low-income or call (602) 682-8582. Arizonans. 10 • JUNE 2016 MARICOPA LAWYER

JUNE Calendar INSIDE THE COURTS All events at MCBA office, unless otherwise specified.

Judge Klein Young Lawyers Division Board Membership Committee Meeting 1 Meeting 13 Noon honored with Noon Paralegal Division Meeting 5:30 PM Construction Law Section Board James A. Walsh 2 Meeting Cororate Counsel Meeting Noon 14 4:30 PM Outstanding Thirsty Thursday at Half Moon Lawyer Referral Service Committee Grill-Biltmore 15 Noon 5 PM Jurist award Arizona Supreme Court Vice Chief Justice Board of Directors Meeting A. John Pelander delivers the oath of 16 4:30 PM The Board office to JudgeA lison Bachus. Estate Planning, Probate & Trust of Governors for 3 Section Board Meeting Race Judicata Planning Committee the State Bar of 7:30 AM 20 5 PM Arizona selected CLE: Real World Ethics Probate Court Noon LRS Advisory Committee Meeting 18 Noon Presiding Judge Corporate Counsel Division Board Andrew Klein as CLE: Satisfaction of Judgment: 4 Meeting Processing a Collection Case the recipient of 4:30 PM the 2016 James A. 11:30 AM Walsh Outstanding Litigation Section Board Meeting Family Law Trial Section Meeting Jurist Award. 6 Noon 21 Noon Judge Andrew Klein Each year, the CLE: Department of Child Safety: award is presented MCBA President Kyle Hirsch presents a Bankruptcy Section Board Meeting Law v. Reality - What Should You to a judge whose career exemplifies the high- ceremonial gavel to Judge Jeffery Rueter 8 7:30 AM Really Do? est standards of judicial conduct for integrity (left) during his investiture ceremony. Environmental Section Board 1:30 PM and independence; who is knowledgeable of Meeting the law and faithful to it; who is unswayed by Noon Maricopa County Bar Foundation partisan interests, public clamor or fear of Diversity & Inclusion Committee 22 Board of Directors Meeting criticism; who is patient, dignified and cour- Summer Social 7:30 AM 5:30 PM teous to all who appear before him or her; Diversity and Inclusion Committee and who endeavors to improve the adminis- Executive Committee Meeting 23 Meeting tration of justice and public understanding Noon of, and respect for, the role of law in society. 9 7:30 AM CLE: Ethical Issues in Your Estate Criminal Law Section He will accept the award at the State Bar’s 4:30 PM Annual Luncheon on June 17. Planning, Probate and Trust Practice Klein was appointed to the bench in 7:30 AM CLE: Trial Tuesdays: Opening and 2001. He has presided over many calendars, Swearing-In Ceremony 28 Closing Statements including juvenile, criminal, civil, family and Justice Robert Brutinel delivers the oath 4:30 PM 11:30 AM of office to Judge Laura Reckart. probate court. n Please watch your MCBA E-News for updated information about meetings and events. Meet the Judges reception The Estate Planning, Probate and Trust section hosted an annual reception on April 14 at the MCBA building. Attendees first gathered to hear from judicial officers from the probate/mental health department of the Maricopa County Superior Court before mingling at the reception.

Helene Fenlon, George Smith, Justin McKay and Kent Berk

Lauren Garner and Hillary Gagnon Emily Burns and Stacey Johnson

Panelists included judicial officers from the probate/mental health department of the Maricopa County Superior Court. MARICOPA LAWYER JUNE 2016 • 11 Commentary Unlocking venture capital and private equity in Arizona The Maricopa Lawyer invites members to send news of moves, By Sarah Strunk and Aaron Cain not only deterred a number of venture capital promotions, honors and special events to post in this space. funds (from California and elsewhere) from Photos are welcome. Send your news to [email protected]. In March, Gov. Ducey signed SB 1005 into establishing formal offices here in Arizona, law, enabling greater availability of venture but has also restricted the formation of local capital and other private equity in Arizona. Pri- funds here in Arizona. ANNOUNCEMENTS HONORS & AWARDS vate equity and venture capital provide crucial By enacting SB 1005, Arizona takes a ma- The Scottsdale Bar Association recently elected Chief Presiding Judge of sources of financing for businesses in Ari- jor step forward to update and modernize the zona, fueling economic growth, increasing the new officers and directors for the 2016-2017 year. the Phoenix Municipal Court Arizona Investment Management Act, which Officers are: Ryan Lorenz, President; Lance Roxanne K. Song Ong (retired) tax base and producing the needed jobs for had not previously been updated for more was honored with the 2016 our growing state. For many years now, the ab- Davidson, Vice President; Perry Goorman, than 14 years, to be more reflective of the Public Service Award by the UA sence of significant venture capital and private Secretary; Charles Berry, Treasurer. regulatory approach applied to venture capi- Directors are: Donald Alvarez, Gail Barsky, Law College Association and the equity in Arizona has frustrated the local busi- UA Alumni Association at the tal and private equity by many other states. SB Dean Dinner, Carolyn Goldman, Steve Guttell, Judge Roxanne ness community and persisted despite various 42nd Annual LCA Appreciation 1005 is largely based on a model rule adopted Monica Lindstrom, Cody Hayes, Denise Blom- K. Song Ong efforts by political leaders, industry groups Dinner. Song Ong also received by the North American Securities Adminis- mel, Coni Rae Good, Steve Kupiszewski, Callie and other stakeholders. the 2015 National Chinese American Citizens trators Association (NASAA), but also incor- P. Maxwell, James Padish, Paige Martin and Alliance “Spirit of America Award” for demon- The newly signed law did not involve any Kevin Estevez (Immediate Past-President). expenditure of state funds or allocation of tax porates a number of improvements adopted strating exemplary leadership and accomplishment The Scottsdale Bar Association hosts CLE as a unique role model for citizens of the United credits. Rather, it simply removed an outdated by California and other states. Like the NA- SAA model rule, SB 1005 excludes bad actors luncheons on the second Tuesday of each month States, especially Chinese Americans. Song Ong regulatory barrier that has generally made it at Gainey Ranch Golf Club and features notable was also the 2015 recipient of the Arizona Asian prohibitively burdensome for venture capital (those involved in fraud) and does not exempt any funds from the application of traditional and interesting speakers. Check us out at Scotts- Chamber of Commerce “Wing F. Ong Legacy funds and many other private equity funds to dalebar.com. Award” for lifetime achievement. be located in Arizona. securities laws (concerning fraud, disclosure The applicable regulatory regime is com- requirements, investor eligibility requirements, Bulletin Board Policy plex and not well understood by many within etc.) when raising money for their funds. If you are an MCBA member and you’ve moved, been promoted, hired an associate, taken on a the state. In very simple terms, Arizona’s regu- However, SB 1005 also includes a special fea- ture not found in the NASAA model rule, partner, or received a promotion or award, we’d like to hear from you. Talks, speeches (unless they are latory regime subjected the managers of ven- of national stature), CLE presentations and political announcements are not accepted. In addition, the ture capital funds and various other private eq- allowing the investors in certain funds with a small number of sophisticated investors to an- Maricopa Lawyer will not print notices of honors determined by other publications (e.g., Super Lawyers, Best uity funds to the same licensing requirements Lawyers, etc.). Notices are printed at no cost, must be submitted in writing and are subject to editing. Items nually opt out of a potentially costly require- applicable to the stockbrokers who buy and are printed as space is available. News releases regarding lawyers who are not MCBA members in good ment to engage an outside auditor that might sell stock for clients on public exchanges like standing will not be printed. n the New York Stock Exchange. For example, otherwise apply. to obtain the requisite licensing to operate To be clear, the enactment of SB 1005 in Arizona, the manager of a venture capital will not itself cause venture capital or private fund was required to pass a broad-ranging equity funds to form in, or come to, Arizo- Speed networking with family written examination requirement (i.e. the Se- na. However, it constitutes a critical enabler ries 65 exam or the Series 66 and Series 6 ex- by removing an impediment that we know law judges ams), complete a written application, provide has previously prevented various venture capi- financial reports, be fingerprinted and pay an- tal funds from coming to Arizona, and other On April 13, Family Law section members gathered at the MCBA building for a fun and casual nual licensing fees. Other states with thriving potential local funds from forming here. This way to get to know family law judges better. A big thank you to event sponsor ProperComm! n venture capital industries, even ones generally type of legislative action does not gener- considered to have burdensome regulatory ally make headlines, but reflects the type of environments like California and Massachu- common-sense governance our state needs. setts, have long maintained licensing exemp- Our legislature, SB 1005’s sponsor (Sen. Da- tions for venture capital and private equity vid Farnsworth) and the governor should be funds. Fund managers already face daunting commended for taking this important step challenges to succeed even without a licensing forward. n requirement, such as an exhausting process of raising capital from financial institutions, pen- Sarah Strunk is the chair of the board of direc- sion funds and wealthy family offices, as well tors of Fennemore Craig. She practices in the area of as the intense and risk-filled efforts associated business and finance law, including an emphasis on with finding, making and growing a fund’s in- board governance and fiduciary duties of officers and Judge Howard Sukenic (far right) at a speed networking table. vestments in promising companies to realize directors, mergers and acquisitions, securities compli- profitable returns. ance and public-private partnerships. Aaron Cain’s States that have not adopted an appli- expertise spans a wide range of corporate transac- cable licensing exemption, which until now tions, including corporate start-ups, venture capital has included Arizona, essentially offer a large transactions, commercial transactions, corporate “KEEP OUT” sign directed at venture capital governance, strategic acquisitions, investments and and private equity funds. In Arizona, this has partnerships, and large sale of business transactions.

Emily Burns and Stacey Johnson

Judges William Brotherton (left) and Michael Herrod.

Oksana Holder, Annette Cox, Amy Duenas and Kellie Wells. 12 • JUNE 2016 MARICOPA LAWYER

August 24 n Noon to 1:30 p.m. THREE WAYS TO REGISTER (Lunch included) Online download printed form phone Help Me, Help You! Trial Tuesdays Register online at: Follow directions for online registration. Call Kelly Sponsored by: Family Law Section www. maricopabar.org. Click on Then, from the program’s online registration at (602) 682-8588 Luncheon Series “CLE/Events” at the top page, download a print registration form to 1.5 CLE credit hours available menu and then “CLE Calendar.” mail or fax. Sponsored by the Litigation Section This CLE will provide lawyers and Each session offers 1.5 CLE credit hours PROGRAM LOCATION their office staff insight into the things Unless otherwise specified, all programs are held at the Maricopa County Bar Association office at 303 E. Palm Lane, Phoenix 85004. we do that tend to drive judges and their Program ATTENDANCE POLICIES court staff crazy! This CLE is geared 11:30 a.m. to 1 p.m. (lunch provided) Advance Registration Full payment must be received in advance of the program before you are considered registered. to help create a better understanding of LATE REGISTRATION Early Bird registration ends five days prior to the program date. Late registration is an additional $15. how to interact with judges and their Location For example, registrations for a Sept. 17 program must be paid by Sept. 12 in order to receive early bird pricing. court staff in order to streamline the 303 E. Palm Lane, Phoenix, AZ 85004 litigation process and to create a more WALK-INS You may register at the door if space is available; the $15 fee will apply. If you do not register at least five business n days in advance of a program, MCBA cannot guarantee space or availability of materials. pleasant relationship between the bar Session III June 28 CANCELLATIONS/REFUNDS Refunds, less a $10 fee, will be issued only if the MCBA receives your cancellation, in writing by and the bench. Opening/Closing Statements mail, fax at (602) 682-8601, or email Kelly at [email protected] at least two business PRESENTERS: Diane Hilty, Judge This practical session will focus on the first days prior to the program. Polk’s Judicial Assistant; Shelby Demas- and last opportunities to persuade a jury to NO SHOWS If you registered and paid, but could not attend, you may request that materials be sent to you, free of charge sari, Judge Green’s Judicial Assistant follow your path out of the “jungle” that is a (allow 3-4 weeks). If audio media is available, registrations may be converted to a self-study package for an additional (formerly Judge Ronan’s Judicial As- trial — opening and closing statements. Join $15 charge. sistant); and Eileen Clevenger, Judge us as we learn to practice these techniques The State Bar of Arizona does not approve or accredit CLE activities for the Mandatory Continuing Legal Education Jennifer Ryan-Touhill’s Judicial Assistant with seasoned litigators who have success- requirement. The activities offered by the MCBA may qualify for the indicated number of hours toward your annual CLE (formerly Judge Padilla’s Judicial fully led several juries out of the jungle. requirement for the State Bar of Arizona, including the indicated hours of professional responsibility (ethics), if applicable. PresenterS: James Burr Shields at Milligan Assistant) Lawless, PC; Susie Ingold from Burch & COST: n MCBA members: $75/$90 Cracchiolo, PA June 3 n Noon to 3 p.m. PRESENTERS: Lynda Shely, The Shely Firm, PC; Russell Yurk, Jennings Haug and Cunningham (Please provide their name and email): $30/$45 Individual Session Prices: (Lunch included) COST: n MCBA members: $135/$150 Real World Ethics Bring your paralegal/legal assistant n MCBA Family Law Section MCBA Litigation Section members 3 CLE credit hours available, including 3 ethics credits (Please provide their name and email): members: $67.50/$82.50 (use promo code TUESERIES):...... $60/$75 This seminar will cover topics relative to: $30/$45 (use promo code HELP) MCBA members:...... $67.50/$82.50 n n Ethical Rules regarding communication, MCBA EPPT Section members: n MCBA Paralegal & Public Lawyer Non- members:...... $107.50/$122.50 confidentiality, conflicts of interest, contact $120/$135 (use promo code ETHICS) Division members: $52.50/$67.50 n MCBA Paralegal & Public Lawyer MCBA Student members:...... $15/$30 with represented and unrepresented parties, n MCBA student members: $15/$30 withdrawal, candor toward the court and pro- Division members: $90/$105 MCBA Paralegal & Public n fessional misconduct n MCBA student members: $15/$30 Non-members: $112.50/$127.50 Lawyer Division members:...... $45/$60 n n Appearance of impropriety regarding conflict Non-members: $220/$235 Limited Seating-Reserve Now! Bring your paralegal:...... $30/$45 of interest issues Limited Seating-Reserve Now! Early bird pricing ends 8.17.16. n Ex Parte Communications Early bird pricing ends 5.30.16. Early bird pricing effective until 5 days n Select provisions of the Judicial Ethical Can- n prior to the series or session date. ons and Ethics Code for Judicial Employees June 21 1:30 to 4:30 p.m. n Social media issues Department of Child Safety: n Selected ethics advisory opinions for attorneys Law v. Reality - What Should and judges You Really Do? PRESENTERS: Anna Unterberger, Esq. and New CLE self study website Professor Keith Swisher, Esq. Sponsored by: Family Law Section COST: n MCBA members: $135/$150 2.5 CLE credit hours available, Bring your paralegal/legal assistant including 1 hour of ethics Participating in CLE courses just got easier with our new (Please provide their name and email): This seminar will cover: $30/$45 n Ethics: Avoiding pitfalls that may affect your self study website! Go to www.shop.maricopabarcle.com n MCBA Paralegal & Public Lawyer clients for the next 25 years. Division members: $90/$105 n The DCS Investigation: Demystifying the for downloadable videos and course materials. n MCBA student members: $15/$30 DCS investigatory process n Non-members: $210/$235 n Discovery: How to obtain DCS records and Limited Seating-Reserve Now! obtain testimony of DCS caseworkers Early bird pricing ends 5.27.16. n Procedure: Learn the basics of the juvenile court functions, email, checking in, obtaining June 9 n 7:30 a.m. to 10:30 a.m. docket information. (Breakfast included) n Accountability: Holding DCS accountable and what to do when you can’t. Ethical Issues in Your Estate Plan- PRESENTERS: Jennifer L. Kupiszewski; Dan- ning, Probate and Trust Practice iel S. Riley; Lynda R. Vescio Sponsored by: EPPT Section COST: n MCBA members: $115/$130 3 CLE credit hours available Bring your paralegal/legal assistant Please join Lynda Shely and Russell Yurk for an (Please provide their name and email): ethics seminar on: $30/$45 n Conflicts of interest n MCBA Family Law Section members: n Who is the client $102.50/$117.50 (use promo code DCS) n Attorney-client privilege and confidentiality, in- n MCBA Paralegal & Public Lawyer cluding fiduciary and testamentary exceptions Division members: $77.50/$92.50 n Dealing with clients with diminished capacity n MCBA student members: $15/$30 n Special issues in representing the fiduciary client n Non-members: $177.50/$192.50 n Duties to report abuse, neglect and exploitation Limited Seating-Reserve Now! n Recent ethics developments, and more! Early bird pricing ends 6.15.16.

Most CLEs are available for simultaneous webcast through West LegalEd or later viewing through the MCBA CLE Self-Study Page. ( ) MARICOPA LAWYER JUNE 2016 • 13

and that such discriminatory conduct is im- proper. The court stated a standard of “a Sanctions for sexist remarks reasonable attorney” by which to measure the conduct, and concluded that given the rules applicable to professional conduct, Don’t overlook obnoxious, demeaning behavior the conduct was sanctionable because “any reasonable attorney must be held to be By Averil Budge Rothrock District Court for the District of Puerto decision. He examines the private nature of well aware of the need for civility, to avoid Rico in the case Eliezer Cruz-Aponte v. Ca- menopause and its implication of “issues abusive and discriminatory conduct, to In 1952, when no private firm would ribbean Petroleum Corp., No. 09-2092 (United relating to a woman’s age, fertility, psycho- interview top Stanford Law graduate San- conduct proper depositions, to eschew ob- States Dist. Court for the Dist. of Puerto logical state, sexuality and physical condi- structionist tactics, and to generally abide dra Day O’Connor for an attorney posi- Rico Aug. 17, 2015), in an order deciding tion.” Judge Besosa’s analysis led him to tion, few lawyers might have imagined by the norms of accepted practice.” These a motion for sanctions. Judge Besosa sanc- conclude that the remark was discrimina- standards provide a good measure for any use of the professional rules to sanction tioned Mr. Salas for professional miscon- tory in nature because menopause “occurs an attorney for a disparaging display of court considering sanctions for disparag- duct under Model Rules 4.4 and 8.4(d). only in women, and predominantly in mid- ing remarks based on gender, or any other sexism or gender bias. Today, thankfully, These rules are similar to Washington’s dle-aged women,” and therefore the remark model rules are serving such a purpose. category of bias defined by Washington’s RPC 4.4, prohibiting an attorney from us- singled Ms. Monserrate out on the basis of professional rules. And these rules should be used by attor- ing means in the litigation “that have no gender and age. The judge concluded that neys and judges to stop gender-focused substantial purpose other than to embar- such discriminatory comments are dam- Mullaney v. Aude criticisms in our profession. rass, delay or burden a third person,” and aging to the legal profession. He cited an (126 Md. App. 639, 644-45, 659, 730 In a Puerto Rican conference room in RPC 8.4(d) prohibiting an attorney from ABA report concluding that discriminatory A.2d 749 (1999)) 2015, a full complement of 16 attorneys engaging “in conduct that is prejudicial conduct in the form of “inappropriate or The salient parts of this disturbing read was on hand to depose an employee of to the administration of justice.” Wash- stereotypical comments” directed at female include an attorney disparaging the plain- a defendant in a class action lawsuit. As ington rules go further, also prohibiting attorneys contributes to the underrepresen- tiff, who was suing her former boyfriend anyone familiar with the underrepresen- “a discriminatory act prohibited by state tation of women in lead trial attorney roles. for infecting her with herpes, when she tation of women in the legal profession law on the basis of sex, race, age, creed, He concluded that behavior like Mr. Salas’s left her deposition to retrieve a document might guess, there were 12 male attorneys religion, color, national origin, disability, is “palpably adverse to the goals of justice from her car. Defendant’s attorney (Mr. and only 4 female. The deponent paused sexual orientation, or marital status, where and the legal profession.” Judge Besosa Harris) remarked that she was going to to make some calculations in response to the act of discrimination is committed in thus concluded that the behavior violated meet “another boyfriend” at the car. Both a question. One male attorney appeared connection with the lawyer’s professional the rules of professional conduct raised by of plaintiff ’s counsel (Mr. Bernstein and to question whether the air conditioning activities.” (RPC 8.4(g)). In addition to all Ms. Monserrate. This is all very true. It also Ms. Green) told him his comment was in was working, to which the deponent’s at- of the above, Washington rules also pro- underscores what we all know: to make the poor taste and asked him to refrain from torney — a woman — responded, “I don’t hibit a lawyer “in representing a client” to remark was wrong. further derogatory comments. This led to know but it’s hot in here.” The plaintiff ’s “engage in conduct that is prejudicial to the Judge Besosa sanctioned Mr. Salas, re- an exchange where the defendant’s attor- attorney, a male, interjected: “¿Tienes calor administration of justice toward judges, quiring him to pay the attorney fees for ney found a new target in plaintiff ’s female todavia? [You’re still warm?] You’re not get- lawyers, or LLLTs, other parties, witnesses, bringing the motion for sanctions and counsel, as follows at 644–45: ting menopause, I hope.” jurors, or court personnel or officers, that a to complete a continuing legal education Mr. Mullaney (the defendant): It’s going to The following exchange ensued: reasonable person would interpret as mani- course on professionalism. The judge be a fun trial. Ms. Monserrate (the disrespected): That’s on festing prejudice or bias on the basis of sex, found as mitigating circumstances that the Mr. Harris: It must have been in poor the record. race, age, creed, religion, color, national ori- incident was isolated, that Mr. Salas imme- taste if Miss Green says it was in poor Mr. Salas (the aggressor): No, no, no, no. gin, disability, sexual orientation, or marital diately and subsequently apologized and taste. It must have really been in poor Ms. Monserrate: You know that a lawyer status.” (RPC 8.4(h)). acknowledged on the record that his com- taste. here got in big trouble for a comment In resolving the motion for sanctions, ment was improper and that Mr. Salas dem- Ms. Green: You got a problem with me? just like that. Judge Besosa declined to accept Mr. Sa- onstrated regret to the Court. Mr. Harris: No, I don’t have any prob- Mr. Salas: Really. las’s subsequent explanation that he made In weighing what sanction to impose, lem with you, babe. No one else spoke at that moment. The the comment “out of concern about Ms. the judge considered other authorities Ms. Green: Babe? You called me babe? deposition continued. But this was not the Monserrate’s medical condition.” The Court where sanctions were imposed for sexist or What generation are you from? end of the issue. After the witness had been demonstrated a firm grasp on reality, stating: demeaning behavior on the basis of gen- Mr. Harris: At least I didn’t call you a excused, a male attorney also representing The Court unequivocally rejects Mr. der, including the following. bimbo. the deponent noted Mr. Salas’s comment Salas’s post hoc explanation. If Mr. Salas Mr. Lipsitz (co-counsel to Mr. Harris): Cut for the record and asked the court reporter was genuinely concerned that Ms. Mon- Principe v. Assay Partners it out. to retain the audio recording, as follows: serrate had a “medical condition” trig- (586 N.Y.S.2d 182, 185 (Sup. Ct. Ms. Green: The committee will enjoy The note for the record I’d like to make gered by the room’s temperature, then 1992)) hearing about that. is that I asked the court reporter to pre- he would have asked Ms. Monserrate in In this 1992 trial court decision from Mr. Bernstein: Alan, you ought to stay out serve the audio that was recorded to- a more private setting and in a more re- New York, an attorney was sanctioned for of the gutter. day. The court reporter agreed that she spectful way whether there was anything making repeated remarks during a deposi- On appeal of the sanctions imposed would review the audio and transcribe he could do to alleviate her symptoms. tion in front of numerous attorneys, the by the trial court for the deposition con- a relevant portion of the audio related Mr. Salas instead chose to tell Ms. Mon- witness, and the court reporter, including: duct, the appellate court concluded that to a comment that I heard Mr. Salas serrate in the presence of fourteen other “I don’t have to talk to you, little lady”; “Tell it “unequivocally rejects” the sanctioned make to my co-counsel, Dora Monser- attorneys, eleven of whom were male, that little mouse over there to pipe down”; attorney’s assertion that the behavior was rate, during the deposition today. That that he hopes that she is not menopausal. “What do you know, young girl”; “Be quiet, not sexist or disruptive to the discovery comment, in substance, was in response Credit goes to any judge or attorney who little girl”; “Go away, little girl.” The com- process. The court declared that undermin- to Ms. Monserrate’s statement that the refuses to sweep sexism under the rug. In ments were accompanied by disparaging ing attorneys through use of gender is an room was very hot. Mr. Salas responded reading this case, I was heartened to real- gestures “dismissively flicking his fingers impermissible strategy sometimes termed that maybe that was because she was go- ize that recourse exists under the rules of and waving a back hand….” The sanction- “sexual trial tactics.” ing through menopause. professional responsibility to stop this be- ing court said, “It takes no great scrutiny As seen in the Puerto Rico case, the at- Then Mr. Salas responded: havior. I had not connected an overt put- to determine that the remarks made … are torney in Mullaney attempted to defend his Let the record reflect that a comment of down based on gender with a violation of improper.” (Id. at 185). The court described behavior with an ad hoc excuse. Mr. Harris that nature was, in fact, made by me. It the professional rules. Such a comment the words as “a paradigm of rudeness,” argued that “babe” was not derogatory but was not made with any bad intent. As was boorish. It was mean. It was designed reasoning that the words “condescend, dis- a “sign of approbation” in reference to soon as we took a break and I saw that to seek an advantage. That seems clear. But parage, and degrade a colleague upon the Babe Ruth and Babe Didrikson, a talented counsel had been hurt or took the com- it also was sanctionable. One needn’t over- basis that she is female.” (Id. at 184). female athlete. Attorneys willing to demon- ment improperly, I tried to apologize to look it. One needn’t pretend it was a joke In concluding that the remarks war- strate poor judgment and unrestrained sex- her. She told me that she didn’t want (lacking all humor). One needn’t remain ranted sanctions, the court explained that ism during a deposition where no referee or to talk to me. So that’s what happened. mute. Although no one else spoke at the “condemnation of such improper remarks authority is present appear to become far And let me state for the record that it time of the first exchange, perhaps out of springs from a growing recognition of the less cavalier when their behavior is docu- was an improper comment. I didn’t shock, a male colleague spoke out to op- seriousness of gender bias and that bias of mented in court files and censure or sanc- mean to harm her in any way. I’ve tried pose the demeaning behavior at the con- any kind cannot be permitted to find a safe tion hangs above them. Fortunately for the to apologize to her right now, and that’s clusion of the deposition and preserved haven in the practice of law or in the work- profession, in these cases their fabricated all I can do. the evidence. Judge Besosa took that evi- ings of the courts and the judiciary.” (Id. justifications landed nowhere. Addition- This story and its quotations came to dence seriously. at 185). The court cited many articles and ally, in this case the offending attorney’s light in a written opinion by the Honorable Judge Besosa’s opinion is thorough and studies demonstrating that gender bias is a Francisco A. Besosa of the United States reasoned, as one would expect of a legal pervasive problem in the legal profession, See Sanctions for sexist remarks page 15 14 • JUNE 2016 MARICOPA LAWYER VLP ATTORNEY OF THE MONTH Volunteer Lawyers Program Thanks Attorneys The Volunteer Lawyers Program thanks the following attorneys and firms for agreeing to assist on 28 cases referred by VLP to help people with low incomes. VLP Retired public defender finds supports pro bono service of attorneys by screening for financial need and legal merit and provides primary malpractice coverage, donated services from professionals, new passion in tenant law training, materials, mentors and consultants. Each attorney receives a certificate from MCBA for a CLE discount. For information about ways to help, please contact Pat By Peggi Cornelius, from a previous lease agreement Gerrich at VLP at (602) 254-4714 or [email protected]. n VLP Programs Coordinator in Arizona. Debt to a former landlord not only creates financial Bankruptcy Ashley Ilysa Ponzo Freddy A. Saavedra Burt Feldman & Grenier Alex & Associates Attorney Peggy LeMoine hardship for a tenant of limited Stanley A. Buzzelle remarks on the likelihood that income, but the appearance of Oswalt Law Group Felicia Schumacher Tanner Warnick her mother would be proud such a debt on a credit report Davis Faas & Blase Polsinelli Mallory Powers of the pro bono work she’s can prohibit the debtor from ob- Stone Law Group Alicia Meier Wolfson chosen to do since becoming Private Landlord/ taining future housing. LeMoine Sole Practitioner Tenant a member of the Volunteer interviewed the tenant by phone Robert R. Teague Teague Law Firm Lawyers Program (VLP) a Peggy LeMoine and learned she had vacated the Education Paul K. Charlton Steptoe & Johnson year ago. residence before the lease expired Consumer Lori A. Bird “My mother was a Chicago to escape a domestic violence sit- Sole Practitioner Benjamin F. Gardner D. Cody Huffaker Cubs fan; she always rooted for the under- uation. This was a valid defense to the alleged Steptoe & Johnson Quarles & Brady Guardianship of dog,” she says. “Like my grandmother, who debt, and there were police reports and an or- Incapacitated Adults Tort Defense gave offerings from her pantry to neighbors der of protection. LeMoine went to the Phoe- Scott A. Klundt in need, my mother tried to help people.” nix police department to obtain the necessary Quarles & Brady Andrea Ho Landeen Robert F. Crawford Clearly, LeMoine emulates the women Quarles & Brady evidence for the tenant living in Colorado to David J Ouimette Attorney at Law who raised her. For the compassionate dispute the debt in Arizona. Dickinson Wright Joshua N. Mozell David J. Ouimette counsel and outstanding advocacy LeMoine Mariscal Weeks LeMoine was born in New York and raised Frazer Ryan Goldberg & Arnold Dickinson Wright provides to troubled tenants, she has been Brett J. Rufer Mariscal Weeks named VLP’s “Attorney of the Month.” in Connecticut. She did not complete the col- Howard I. Sobelman Snell & Wilmer Snell & Wilmer Every Monday, LeMoine begins her week lege education she began at the University Transactional of Connecticut — nor did she resume her with a 9 a.m. tenant advice clinic at VLP. Court Advisors for Nichole Wilk Assistance to Tenants come to her with problems involv- formal education or attend law school until a Children in Family Court Jaburg & Wilk Charitable number of years had passed — so LeMoine Organizations ing uninhabitable conditions such as roach, Stasy D. Click describes herself as a “very late bloomer.” In Guardianship of Patrick Derdenger mice or bed bug infestations. Unlawful lock- ASU Alumni Law Group Minor Children outs and conversion of property are fre- 1966, she accepted a job offer in Arizona, met Steptoe & Johnson quent problems, too. Evictions subsequent and married her husband two years later, but Christina W. Kelly Lauren A. Crawford Polsinelli Polsinelli Benjamin F. Gardner to a tenant’s calls for police protection during did not apply to law school at Arizona State Steptoe & Johnson instances of domestic violence are particu- University until 1987. Judith A. Morse Alexander R. Mennie larly egregious. However lengthy LeMoine may consider Sole Practitioner Steptoe & Johnson In some cases, the circumstances may her “blooming” years to have been, they were have no legal remedy. Regardless, LeMoine definitely not wasted. The life experience she **PRO BONO SPOTLIGHT ON CURRENT NEED** finds it gratifying to educate tenants about acquired developed in her a great capacity to Experienced family law attorneys are needed to provide legal advice and brief help to unrepresented family law litigants at VLP’s Family Lawyers Assistance Project (FLAP) at Superior Court locations. their rights and responsibilities under Ari- understand and advocate for the interests of zona law. She says, “As a retired public de- society and individuals. fender, civil law is a new area for me. I enjoy “When I was 14, I picked tobacco in Con- learning at the same time as I’m providing necticut. I’ve been a cab dispatcher, waitress, The Volunteer Lawyers Program is a joint venture of Community legal advice and offering tenants the knowl- bookkeeper, computer operator, programmer edge they need to request repairs, resolve and vice president of finance,” she says. “I Legal Services and the Maricopa County Bar Association disputes, avoid eviction or obtain deposit served as a clerk for the Hon. Thomas Klein- refunds.” schmidt in the Court of Appeals. As an at- Within a week of her orientation as a torney, I began my career as a public defender, new volunteer, LeMoine agreed to appear in court on behalf of a tenant whose physical became a state prosecutor and eventually re- Welcome, Sustaining Members! disabilities made it difficult for her to appear sumed my work as a public defender because in person. LeMoine collaborated with other it was the most rewarding job I ever had.” The MCBA is proud to welcome the following attorneys to prepare for the forcible entry Now in retirement, LeMoine says, “Work- attorneys who have joined the association and detainer proceeding and used her years ing at VLP gives me an opportunity to help as Sustaining Members for 2016: of experience to obtain concessions, which people who really have nowhere else to turn. I believe I get more benefits from VLP than avoided a judgment against the client and Justin S. McKay provided additional time for relocation. our clients do; I feel useful, which is not al- Krystal Ahart Shortly thereafter, a legal aid organiza- ways easy for us seniors when we retire. I en- Bruce L. Bauman Carla Miramontes tion in Colorado referred a tenant for as- joy the people I work with and the clients I Garvey M. Biggers Charles F. Myers sistance with a collection matter stemming meet.” n Bryan James Blehm Michelle N. Ogborne Terri L. Clarke Rich J. Peters James C. Dutson Donald W. Powell classifieds James R. Harrison James T. Rayburn Get the most To place a classified ad, please e-mail Jennis Hemingway Shawnna R. Riggers [email protected] or Leonnesia Herd Lynda C. Shely out of your call (602) 257-4200. Jill M. Hulsizer Michael J. Sheridan Services Nikki J. Johnson Howard A. Snader membership EXPERIENCED COMMERCIAL AND PER- James F. Kahn Robert E. Thomson SONAL INJURY TRIAL ATTORNEY since Join a section 1971, looking for contract work writing or Ronee F. Korbin Steiner William S. Whitaker actively litigating as needed. Contact Fred at Jack Levine James P. Yeager or division by calling (480) 269-6230. (List is as of May 13) EXPERT WITNESS. Standard of Care Spe- the Membership Dept. cialist. Retired property/casualty insurance For a single payment of $500, Sustaining Members receive unlimited attendance at live at (602) 257-4200 agency owner with 40+ years. Experienced Continuing Legal Education programs and other benefits. For more information or to become in case evaluations and depositions. MARK a Sustaining Member, please contact Membership Director Cynthia Quinonez at 602-682-8582. SPECTOR 480-620-7455 MARICOPA LAWYER JUNE 2016 • 15

remarks over three days included an in- interest and made a point to condemn the a check on personal behavior. They can re- Sanctions for sexist remarks quiry on the record whether she is married gender discrimination it witnessed by the mind us to speak out when we see behavior continued from page 13 and why she is not wearing a wedding ring, disqualified attorney against the female at- that warrants an objection, even when not stating that she has “a cute little thing go- torney for the United States Trustee. Ap- partner urged the attorney to “cut it out,” directed at us and no matter how stunned ing on,” stating that his defense of the de- parently, in defending his right to continue unlike in the Puerto Rico case, where all we might feel in the moment. And these position is “nothing personal, dear,” con- as counsel, the attorney thought it would observers remained silent during the ex- cases can encourage us to use our profes- necting her to Attila the Hun, and stating help if he referred to the attorney for the change at issue. sional rules to lift the conduct of all bar that she’s “gonna be one sorry girl” if she United States Trustee as “office help” The Maryland court explained the im- members. Airing of sanctionable behavior, tries the case, all while making impermis- “even when he knew that she was a law- proper advantage gained by attorneys who and a firm renouncement of it by our judi- sible speaking objections and testifying for yer and knew that she had presided over demean co-counsel on the basis of gender ciary, benefits all of us. the witness. During the deposition, the wit- the section 341 meeting.” The attorney ex- and also bristled at the suggestion that such RPC 8.3(a) counsels that a lawyer ness supported his attorney’s demeaning plained to the court that he did not respond comments are within the bounds of ac- “should” inform the Bar Association if conduct by badgering her. The New York to her request for full disclosure of his ap- ceptable “hardball” litigation. Finally, in af- he or she knows that another lawyer has trial court, citing Principe v. Assay Partners, parent conflict of interest because “‘she firming the sanctions the court applauded committed a violation of the professional supra, granted the female attorney’s motion decided that she knew more than the court’ Ms. Green for the motion, stating: “Seeking rules “that raises a substantial question as requiring that all future depositions take and that her job title was not sufficiently sanctions from this court is not a display of to that lawyer’s … fitness as a lawyer …” place at the courthouse before a referee. exalted.” (111 B.R. at 892). The bankruptcy an inability to overlook obnoxious conduct, The above cases show that gender-biased Attorneys should be armed with the judge took umbrage, remarking, “Gender- but an indication of a commitment to ba- attacks on female counsel reflect on fit- knowledge that they need not feel forced biased remarks are unworthy of counsel sic concepts of justice and respect for the ness. Such behavior is “palpably adverse to continue depositions in such degrading who appear in federal court, interfere with mores of the profession of law. The mov- to the goals of justice and the legal pro- circumstances. No female attorney should the orderly conduct of federal litigation in ant has turned to the court to give force to fession.” It perpetuates lack of gender di- ever suffer through such an intolerable test an atmosphere of equal justice, and are as a basic professional tenet.” (126 Md. App. versity in the profession and among chief of composure. The cost of the behavior sanctionable as the casting of racial or eth- at 659). This endorsement of the motion trial counsel. It interferes with the orderly was not only a personal exaction on its tar- nic epithets and slurs among counsel.” and its role in respecting and protecting the conduct of the judicial system in an atmo- get, but disrupted this attorney’s concen- The judge found that the behavior re- profession is important. As a profession, sphere of equal justice. tration and her ability to gather evidence flected on the attorney’s ability to assist the we must support and approve the efforts I tip my hat to Ms. Monserrate and for her client. The sanctionable behavior debtor in discharging its duties to cooperate of our colleagues to expose and correct undermined the process of litigation and with the Chapter 11 Trustee and the United Judge Besosa, and all the other attorneys — abuses. We should not expect or desire that gained unfair advantage. We must educate States Trustee and further supported dis- advocates and judges — involved in these fellow attorneys stay quiet or address such ourselves and our colleagues so that we qualification. How satisfying to see this at- cases who stood up for their colleagues and important issues in the hallway or not at all. n all know in advance that recourse to the torney’s improper gender attack backfire. for professionalism. courts is the best antidote to such viola- Laddcap Value Partners, LP v. Averil Budge Rothrock focuses her practice on tions of the professional rules. Continue Conclusion Lowenstein Sandler P.C. appellate review in the Seattle office of the Pacific the deposition, order the transcript, and Fortunately, the vast majority of our (18 Misc 3d 1130, 2007 NY Slip Op seek that assistance. Washington bar would never stoop to the Northwest regional firm Schwabe, Williamson & 52538, 2007 WL 4901555 *2–7 (N. Y. levels seen in the examples above. And I Wyatt. She takes a special interest in the advance- Sup. Ct. Dec. 5, 2007)) In re Plaza Hotel Corp. do not suggest that attorneys run to the ment of women in the legal profession. She can be This case arose from repeated inappro- (111 B.R. 882 (E. Dist. Cal 1990)) court for every slight or incident of poor reached at [email protected]. priate remarks by a more experienced male In this bankruptcy matter, the bank- behavior by counsel with whom they cross This article originally appeared in the March attorney toward an inexperienced female ruptcy judge affirmed disqualification of paths. But I do suggest that all attorneys 2016 issue of NWLawyer, produced by the attorney taking her first deposition. These the debtor’s counsel based on a conflict of keep these cases in mind. They can serve as Washington State Bar Association.

what matters is whether the legislature suc- Ruiz was arrested after an incident at a tuted an attempt to rob him. The judge ac- Arizona identity-theft statutes ceeded in carrying out that purpose.” truck stop. A Homeland Security officer had quiesced and denied Ruiz’s Rule 20 motion. CourtWatch continued from page 1 But the essence of Tallman’s opinion been conducting undercover surveillance of The jury convicted Ruiz on all counts. was the statutes’ applicability to situations laws could easily be applied to a sex offender a semi truck in connection with an investiga- But the court of appeals reversed the unrelated to immigration. “Just because Ari- who uses a false identity to get a job at a day- tion of a plot to transport marijuana. After attempted-robbery convictions, holding that zona could (and has in the past) enforced care center,” he wrote. a group of men had moved marijuana bales allowing the indictment’s amendment was the identity theft laws in violation of [the] “Or the laws could be applied to stop a out of the semi into a car and then left, a a double-jeopardy violation. “The Double IRCA,” he wrote, it “does not mean the laws convicted felon from lying about his crimi- civilian approached the officer to report that Jeopardy Clause of the Fifth Amendment should be struck down in their entirety. Ari- nal history on a job application for a posi- he had witnessed the incident. prohibits reexamination of an acquittal even zona retains the power to enforce the laws in tion of trust,” Tallman added. “In fact,” he As the officer and civilian talked at the when granted by a judge before a jury ver- ways that do not implicate federal immigra- noted, “Arizona has prosecuted U.S. citizens semi’s open trailer, the group returned and dict,” wrote Judge Michael O. Miller. The tion priorities.” for doing just that.” held the two at gunpoint. They frisked question was therefore whether Ruiz had He therefore ruled that the district court Although Tallman agreed with Puente both men and took $380 from the civilian. been acquitted before the judge allowed the had erred in enjoining the statutes’ enforce- that the legislative history of both acts dem- Ruiz was later identified as one of the as- state to amend the indictment. ment in all situations. But he iterated and onstrated the Arizona Legislature’s intent sailants. He was charged and tried on two The judge’s statement that she was “go- reiterated that this ruling applied only to to enact immigration provisions — an area counts each of aggravated and armed rob- ing to grant” the Rule 20 motion was am- Puente’s facial challenge to the Arizona stat- reserved to the federal government — he re- bery, kidnapping and aggravated assault biguous. “Generally, ‘going to,’ as used here, utes. The same arguments that were unsuc- jected Puente’s argument that this invalidat- (along with charges of burglary and mari- ‘[e]xpress[es] a plan or intention that some- cessful in its facial challenge might neverthe- ed the statutes. Their legislative history had juana possession). thing will happen (usually soon), or mak[es] less rule the day in its as-applied challenge. no bearing on the crucial question of Con- When the evidence showed that the as- a prediction that something will happen, gressional intent. “If Congress intended to Along with Circuit Judge Barry G. Sil- sailants had taken money from only the ci- based on present events or circumstances,’” preempt laws like the one challenged here,” verman and Judge Robert S. Lasnik of the vilian, the judge suggested that she would Miller wrote, quoting an online dictionary. It he wrote, “it would not matter what Arizo- Western District of Washington, Tallman dismiss the robbery counts related to the could mean that she planned to do so in the na’s motives were; the laws would clearly be therefore vacated the preliminary injunction Homeland Security officer. This prompted future or that she had already made up her preempted.” and remanded the case “with instructions to Ruiz to move under Rule 20 for a judgment mind to do it. In any event, even if Arizona had intend- evaluate the merits of Puente’s remaining of acquittal on those counts. The prosecu- The ambiguity was resolved in this case ed to enact an immigration regulation, it had claims, including the as-applied preemption tor responded that although the money be- by the minute entry for that day’s trial events: not entirely succeeded. If regulation of im- challenge.” longed to the civilian, it had been taken from “IT IS ORDERED State’s motion for migration was the sole legislative intent, “it *** him in the immediate vicinity of the officer, amendment of Counts 2 and 4 is GRANT- failed,” Tallman wrote. “The legislature also Did she or didn’t she? A case of double thus satisfying the robbery statutes. ED; therefore, the Court reverses its prior rectified the growing problem of employ- jeopardy ambiguity The judge evidently disagreed and then ruling, thereby not dismissing Counts 2 and ment-related identity theft,” he added. “We In the case of Angel Pete Ruiz, the ques- spoke the words at the heart of the appeal: 4.” Miller concluded that “[t]his clarifies that think Congress would agree that the identity tion was whether the trial judge actually “I am going to dismiss Counts Two and the trial court actually did dismiss counts two theft laws validly apply to any person who granted his motion for judgment of acquit- Four. Those are the armed robbery and ag- and four before reconsidering the ruling.” uses another’s identity for non-immigration tal or simply signaled that she was going to gravated robbery [counts] pertaining as to” Thus, he concluded, there was a double- reasons.” do so at some point in the future. It mattered the officer. At that point, the prosecutor jeopardy violation. Joining him in reversing “Said another way,” he concluded, “it for double-jeopardy purposes. State v. Ruiz, asked for rebuttal and asked to amend the the two robbery convictions were Judge does not matter if Arizona passed the iden- No. 2 CA-CR 2015-0036 (Ariz. App. Apr. indictment to attempted robbery of the of- Garye L. Vásquez and Chief Judge Peter tity theft laws for a good or bad purpose — 27, 2016). ficer, contending that the pat-down consti- Eckerstrom. n 16 • JUNE 2016 MARICOPA LAWYER