The Marin Lawyer
In This Issue
Calendar of Events
Look for details each month in The Marin Lawyer
President’s Message ... 2
Employment Law ... 3
Meet Your Newest Judge ... 4
Marin Gun Buyback Program ... 5
Ethics Corner ... 6
News from the Civil Bench ... 7
Calendar Details ... 13 New Members ... 14 Change of Scene ... 15 Marketplace ... 15 (Continued on page 9.) (Continued on page 8.)
Barbara Monty was Guest Editor of this issue of The Marin Lawyer.
Kate Rockas is Series Editor for 2013.
An Official Publication of the Marin County Bar Association
FEBRUARY GENERAL
MEMBERSHIP MEETING
On February 27, at the Four Points Sheraton in San Rafael, MCBA members will hear attorney and LGBT activist Deb Kinney discuss the upcoming oral argument at the U.S. Supreme Court in landmark cases about same-sex marriage. Deb, who has been a director of Equality California, the statewide LGBT legislative and political organization, is currently working with the Tax Equity Project which advocates for equal tax treatment for same sex married couples. Founder and partner
in DLKLaw Group PC with offices in San Francisco and Santa Rosa, Deb
specializes in estate planning and spends much of her time helping members of the LGBT community navigate the confusing legal landscape. Deb will talk about how Proposition 8 has changed the national conversation of LGBT rights and how the decision of the Supreme Court will impact the future for LGBT families in our state.
In order to better understand Deb’s comments, below is a brief chronology of the legal journey of same sex marriage in California:
February 12 to March 11, 2004, San Francisco Mayor Gavin Newsom allowed marriage licenses to about 4,000 same sex couples.
February 20, 2004, Governor Arnold Schwarzenegger ordered state
Attor-ney General Bill Lockyer to obtain a definitive judicial resolution of same sex
JoEL GUMBINER SwoRN IN AS MCBA 2013
PRESIdENT
By Barbara Monty
On Saturday night, January 5, 117 people celebrated the installation of Joel Gumbiner as the 2013 president of the Marin County Bar Association at the Spinnaker Restaurant in Sausalito. The honorable James Ritchie smoothly administered the oath to Joel, and to president elect Elizabeth Brekhus, treasurer Randy Wallace, secretary Lisa Spann Maslow, past president Jessica Karner
and 5 year past president, the Honorable Michael Dufficy (ret.). Also taking the
oath were Directors: Philip Diamond, Michael Fish, Louis Franecke, Beverly Green, and Jessica Pliner, David Brown, Paul Cohen, Charles Dresow, Bar-bara Monty, Dorothy Proudfoot, Kate Rockas, Scott Rogers, Barrett Schaefer, Lawrence Strick and Francine Ward.
February 27, 2013
General Membership Meeting 12 – 1:30 pm
February 14, 2013
Construction Law Sections 12 – 1:30 pm
February 20, 2013
ADR Section Meeting 12 – 1:30 pm
Probate & Estate Section Meeting 12 – 1:30 pm
February 25, 2013
Probate & Estate Mentor Group 12 – 1:30 pm
February 26th, 2013
Intellectual Property Section Meeting 12 – 1:30 pm
March 5, 2013
Real Property Section Meeting Annual Update
12 – 2 pm
(Continued on page 10)
RESERVATION FORM General Membership Meeting Speaker: Deb Kinney
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RSVP by February 20, 2013, *after 2/20 you are considered a late sign up.
Make checks payable to MCBA and mail to: MCBA,101 Lucas Valley Road, Suite 326, San Rafael, CA 94903. Reservations are non-refundable unless the individual provides at least 24 hours cancellation notice to MCBA.
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PRESIdENT’S
MESSAGE
By Joel GumbinerThe Kids are Alright
Teenagers are rebellious, disrespectful, and lazy. They have piercings, they get high a lot, their pants sag below their butts and they seem to speak in monosyllabic grunts. You hear this from some adults and you
certainly see teens fitting this description at the malls and
in the streets. Should we be worried about the future of this country? I don’t think so.
I spend a lot of time with high school kids between September and February every year as a coach of the Terra Linda High School Mock Trial team. The teens I spend time with are probably not as visible to you as the kids in
the mall so you might not know much about this group (un
-less you are fortunate enough to have one in your house). These kids fill up nearly every minute of their week with
Advanced Placement courses, leadership programs, Mock Trial, Youth Court, Model U.N., chess club, drama club, literature club, Mathletes, a seemingly endless number of musical groups and bands, and a host of community service
clubs. They see life (and school) as a Smorgasbord , and
they cannot get enough. They have little mall time. They start the school year knowing they can take on everything that interests them and by mid-year they are sleeping three hours a night and just trying to keep up. Frustrating for coaches, but inspiring.
This group of high school students are also really smart and in tune with history, politics, and the world. On a recent ride home from a Mock Trial scrimmage, a senior, two juniors, a sophomore and I discussed for over an hour such subjects as the weaponry used in the Italian/Ethiopian
conflicts during World War II, the amount of money spent
in last year’s presidential election campaign, and a vari-ety of Constitutional issues ranging from abortion to the constitutional underpinnings of police search and seizure practices, to Fifth Amendment rights after the Miranda case
(one of the issues in this year’s Mock Trial case). These
kids understand the world in a very adult way and usually know what they are talking about.
I write this message on the eve of the Marin County High School Mock Trial competition. As you read this, the competition will have just concluded. This year, ten Marin County high schools competed – up from seven schools last year. The program has been expanding dra-matically in recent years and is administered by the Marin
County Office of Education. Over two hundred students
participate. The success of Mock Trial can be attributed, in part, to the support of the Marin County Bar Association and so many of its members.
For those of you unfamiliar with Mock Trial, it is a na-tional high school program with teams in every state. Team members act as lawyers and witnesses. The competition is an actual criminal trial. One school’s prosecution team competes against another school’s defense. All California high schools have the same case and county winners com-pete in a State competition. In preparation for their indi-vidual county competitions, teams from different counties
EMPLoYMENT
LAw FRoM A To
Z (SKIPPING B
THRoUGH Y)
By Andrew WolfeEmployment law is almost
infinite. Its multi-faceted nature
is indicated by the fact that em-ployers are regulated by more than a dozen federal and state agencies. That’s one good reason for skipping B through Y in an article of this length. An-other good reason is that most employment law problems occur at A and Z – the beginning and the end of the work
relationship between Boss and Worker. This article flags
some of the more common issues that arise at those two key points in time.
A. The Beginning … Of What?
Much later trouble will be avoided if at the start of their relationship Boss and Worker answer, preferably in writing, the following questions.
What Kind Of Relationship Is This, Anyway? When Boss hires Worker, surprisingly often they fail to ask each other this most fundamental of questions. Is Worker an independent contractor or employee? If Worker
is an employee, is he or she an exempt employee (one who entitled to premium pay for overtime work) or a
non-exempt employee? If worker is on assignment from one employer to another, or from a temp agency to Boss, is Worker the employee of the sender, the receiver or both?
How Long Is This Relationship Going To Last?
Is Worker hired indefinitely or for a term? Can Boss
terminate Worker at will or only for cause? In the absence of an agreement to the contrary, Worker is presumed to be hired at-will.
What’s In It For Worker?
(Continued on page 10)
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NEwEST JUdGE:
MARK TALAMANTES
Interview by Matt WhiteHow does your biography start? Describe some of your early experiences and influ-ences, and how they might af-fect your outlook on the bench.
There are no attorneys in my family and I am the first to
go to college and earn an advanced degree. I raised myself out of the poverty experienced by my family in El Paso, Texas, to be a lawyer, founding partner of a thriving law practice in San Francisco, and now a judge. I was raised by a single mom, who raised four children on a very limited income. My native language is Spanish, which I learned as a child from the grandparents who raised me when my mother was at work.
My parents divorced when I was young. My father, a mechanic, worked on cars at a body shop to support his family. My mother, a high school graduate, worked mul-tiple jobs including as a garment worker and teacher’s aid to help support her four children. Despite their poverty, both of my parents instilled in us the value of education and importance of service to others. Still, no one helped me get into college, reviewed my college application, or helped me pay for it. I could not turn to my family for
academic or financial support.
I funded my college education by simply walking into the largest bank in downtown El Paso during my senior year in high school, where I met with a banker and eventually secured a student loan. I worked part-time and through
summers at a law firm to pay my way through college. I
also paid my way through law school. In fact, I am still paying off my college and law school loans.
Tell us about your family, spouse and/or children.
My wife, Karen Carrera, is the Director of Litigation of Legal Aid of Marin. Those who know Karen know that she is a great, dynamic, dedicated, committed and talented lawyer. What many may not know about Karen is that before we had children, she had a career prosecuting slum-lords on behalf of the people of the City and County of San Francisco as a Deputy City Attorney. She had great success working side-by-side with now Chief of Police, Greg Shur. I am part of a big and loving modern family and have a brother, sister, half brother, and a handful of step brothers and sisters. My parents both re-married after their divorce.
Karen and I are the parents of two boys, Noah (13) and Tomas (11). I am very proud of my children. We also
have two Corgies, Baily and Nacho. Together, we live in Tiburon. Karen and I have lived in Marin County for 19 years. Marin is our home.
As a judge, you will make decisions, often on is-sues of great importance, and the lawyers will have to say “Thank you, your honor,” regardless of your rul-ings. What will you do to avoid arrogance?
As a lawyer whose former practice was statewide, I can tell you that the Marin Bench is very well respected. Win or lose, I believe that lawyers and their clients need to feel that they have had the opportunity to be heard in a full and fair manner. It is important to me address lawyers with respect and courtesy because I will not soon forget how hard I worked as a practitioner – the sleepless nights, the all-nighters, the long weekends, the stressed clients. I hope to bring that experience with me to the bench.
What do you bring to the Marin County Superior Court Bench that it may, until now, have been lacking?
My practice was exclusively civil and complex class action litigation. My law partner Virginia Villegas and I built a law practice that tackled hard issues, resulting in one
case before the California Supreme Court that defines who is and who is not an employer in California (Martinez, et al, v. Combs, et al., 49 Cal.4th 35 (2010)), and one case that helped to create legislation codified as Cal. Labor Code §
2810 to help protect the rights of janitors, garment workers and farmworkers. I bring the experience of a civil litiga-tor in complex matters, and hope that it will add another dimension to our Bench.
MARIN GUN
BUY-BACK PRoGRAM
EXCEEdS
EXPECTATIoNS
(& FUNdING)
By Lisa Spann MaslowLike most Americans, Dis-trict Attorney Edward S.
Berbe-rian was horrified by the Decem -ber 14th massacre of first grade children and school staff
in Connecticut. At an emergency meeting of the County’s School/Law Enforcement Partnership, he proposed a gun
buy-back program where anyone could surrender firearms,
with no questions asked. Berberian described the program as “one small step that empowers the average individual to do something”-not just talk-in response to the Sandy Hook tragedy. County school leaders, the Sheriff, the Board of Supervisors and every law enforcement agency in the County quickly endorsed the program, to be held on Martin Luther King’s birthday. Funds were contributed by the Marin Community Foundation, the County Board of Supervisors, and Marin residents.
On January 15th, 827 fire
-arms and more than 3,300 rounds of ammunition were surrendered at five locations. The overwhelming community response not only exceeded expectations, it depleted within 90 minutes the $43,000 in contributions that had been collected to fund the program. Vouchers totaling approximately $68,000 were given to the
many persons who continued to surrender their firearms that
day. A second gun buy-back day held on Martin Luther King Day (January 21st), yielded 29 additional weapons
and another 1,000 rounds of ammunition.
The type of firearms surrendered covered a wide vari
-ety of models and categories. There were long rifles (bolt action and semi-automatic); shotguns; sawed-off shotguns;
pistols and semi-automatic handguns. Two military-style
semi-automatic assault rifles were surrendered, including
an AK-47 with a 200 round magazine, and a number of 30 round magazines. The guns collected will be dismantled
and melted down, unless they were legal firearms stolen from an identified owner.
Due to lack of available funds, a second gun buy-back day scheduled in San Rafael has been postponed.
The District Attorney’s Office is actively seeking broad-based community financial support for the gun buy-back
program-to allow the program to redeem the $68,000 in vouchers already issued and to fund future gun buy-backs. In a recent appeal, Ed Berberian wrote:
The goal is not to remove every firearm from
every individual but to reduce the abundance of guns that are sitting in our homes, garages, out-buildings and who knows where…. I personally
believe the removal of these 827 firearms from the
homes in our community and our neighboring com-munities means there are 827 fewer chances that
a firearm will be the cause of an accidental death due to negligent handling by an adult or child; or be available to someone despondent and suicidal;
or be in a home and stolen during a burglary then
subsequently appear in a criminal enterprise; or be
available during an explosive domestic violence
incident; or be available to an emotionally or
mentally challenged individual at a time of crisis. For the past
decade, more than 300,000 Ameri-cans have died due to guns-a combi-nation of homi-cide, suicide and accidents. The slaughter of 20 el-ementary school children momen-tarily made these statistics real to many of us. Sad-ly, little attention was paid when a 17-year-old boy was shot dead this January 10th in
Marin City.
Please write a check today to support Marin’s Gun Buy-Back Program. Tax-deductible contributions should
be mailed to the Marin County District Attorney’s Office,
Attn: Gun Buy Back Program, 3501 Civic Center Drive, Room 130, San Rafael 94903. Checks should be payable to County of Marin with “Gun Buy Back Program” writ-ten on the check. A tax ID number will be mailed to any contributor.
Lisa Spann Maslow is the Secretary of the Marin County Bar Association. She counsels employers on labor and employment law issues. She also conducts independent workplace investigations of alleged discrimination and misconduct.
(Continued on page 12.)
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CoMMoN MCLE
MISTAKES
LAw-YERS MAKE THAT
CAN GET THEM
INTo TRoUBLE
By Francine WardIt’s that time again—time to report your Minimum
Continu-ing Legal Education (MCLE)
compliance under the Rules of the California State Bar. The Rules state that California attorneys must report compliance regarding legal education every three years. If you are in the compliance group, your deadline is fast approaching.
California lawyers are assigned to one of three groups,
based on the first letter of their last name. Members of the
State Bar are assigned to a group only once and remain in that group, even if they subsequently change their last name.
Group 1 (A-G) Group 2 (H-M) Group 3 (N-Z)
Group 1 -- last names beginning with A-G. MCLE compliance deadline is Feb. 1, 2013. Group 2 -- last names beginning with H-M. MCLE compliance deadline is
Feb. 1, 2015. Group 3 -- last names beginning with N-Z. MCLE compliance deadline is Feb. 1, 2014.
The Challenge.
Every year many lawyers wait until the last minute to comply, and every year many lawyers fail to report at all. As I have said previously, the State Bar is increasing its audit-ing of lawyers. You could be on the list of attorneys audited in 2013. There are common mistakes lawyers make, and a number of actions you can take in order to sidestep the wrath of the California State Bar. Here are a few:
Write it! Schedule it!
You are a busy lawyer, and you cannot remember to do everything. One way to remember to sign up for ethics
(4-hours), elimination of bias (1-hour), and substance abuse (1-hour) is to write it down and schedule a ToDo alert. Out
of sight, out of mind. It is easy to forget something unless it’s top of mind.
Attend a Bar Event.
If you attend the annual State Bar meeting, any ABA conference event, there are always opportunities to sit in on an ethics course or two. And annually our very own Marin
County Bar Association (MCBA) hosts the MCLE Fair in
November, making it especially easy to get all 3 courses in one affordable half-day event. Starting this year, MCBA will also host a series of ethics webinars and it will also post self-study MCLE articles. Take advantage of these
membership benefit offerings.
Do not file a False Report.
Filing a false report can subject you to discipline. If you assert that you have taken and completed a course, and then received MCLE credit for that course, but in fact did not that is unethical. It is a false representation of a material fact. An argument can be made that you are com-mitting fraud against the State Bar. Reporting compliance and consequently submitting credit for courses taken after the date you reported compliance can get you into trouble.
In some instances the State Bar allows you to file late and
pay a penalty. It is better to pay the late fee, than be disci-plined before the State Bar.
Check your Numbers.
It’s your responsibility to make sure you have suffi -cient MCLE credit every compliance period. Keeping track of your credit and classes can be one tedious task, but it is one that can help you maintain your good standing status. Whether it is your assistant, an online service provider, or the State Bar’s MCLE Personal Log, there are ways to keep track of your hours. Stay on top of this.
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NEwS FRoM THE CIVIL BENCH:
SETTLMENT FAIR CoMING UP IN
MAY
By Jessica Karner
The civil judges have heard you civil litigators loud and clear on your frustration with long waits for hearings on trial and on law and motion matters, and the bench is taking action!
During the week of May 6 - May 10, 2013, all civil departments of the Marin County Superior Court will hold a Settlement Fair. Judges Duryee, Haakenson, Chernus and Talamantes will oversee the Settlement Fair and will also use settlement panelist volunteers. The goal is to settle at least 55 civil cases that week.
The court has already begun to assign cases to the Settlement Fair, so some of you may have received a let-ter notifying you of the assignment of one of your cases. If your case is assigned to the Settlement Fair, please do everything you can to be prepared to discuss settlement possibilities. The court is focusing on the older cases in each civil department, so if yours is selected it means it
has been pending for quite a while and may benefit from
some focused attention and efforts toward settlement. If you would like to include your older case in the program and have not yet received a letter from the court assigning your case, please contact Norma Johnson, the court’s ADR administrator at Norma_Johnson@marincourt.org or (415) 444-7209, and the court will try to accommodate your request. You can also contact Norma Johnson to volunteer as a panelist.
If your case is selected for the Settlement Fair and does not settle, you will leave the conference with a trial date in hand. And if your case is selected for the Fair and settles at any time before the Fair, please notify the court immediately to free up court resources. (Of course, such a notice is always a good—and required—practice.)
I’m excited to tell you about the Settlement Fair be-cause it’s a great example of the court responding to the bar and working in the best interests of the litigants here in Marin County, particularly during this time of budget cuts when the courts are asked to do so much with fewer resources. It is also a great example of positive ongoing impact of the MCBA’s Bench-Bar and Administration of Justice Committee and its productive collaboration with the court. That committee began its efforts about a year ago and has helped to improve bench-bar communication and cooperation, as evidenced by launch of the Discovery Facilitator Program last year and this Settlement Fair.
MARIN MEDITATION GROUP
A group of Marin lawyers committed to developing mindfulness. FORMAT: Sitting for 20/30 minutes, followed by brown bag lunch and discussion of our practice and related topics
LOCATION: Courthouse Square, 1000 Fourth Street
(at A Street), Room 285, San Rafael
DATES AND TIME: The first and third Thursday of
each month, unless stated otherwise, at 12:00 p.m. Noon. 2013: January 3, 17 February 7, 21 March 7, 21 April 4, 18 May 2, 16 June 6, 20 July 4, 18 August 1, 15 September 5, 19 October 3, 17 November 7, 21 December 5, 19 FOR MORE INFORMATION CONTACT:
Edith Politis 415.453.3055 ekpolitis@gmail.com Barbara Monty 415.226.4049
SAVE the DATE
Pro Bono
Lunch
March 27, 2013
12-1:30pm
marriage, but Lockyer responded that he did not “personally support policies that give lesser legal rights and responsi-bilities to committed same-sex couples. “ Lawsuits were nevertheless brought against San Francisco by Lockyer and the conservative Alliance Defense Fund.
August 12, 2004, the California Supreme Court voided all of the marriage licenses.
March 14, 2005, In re Marriage Cases original trial judge Richard Kramer, of the San Francisco County Su-perior Court, said California’s ban on same-sex marriage was unconstitutional.
May 15, 2008, the State Supreme Court decided mar-riage was a fundamental right that may not be denied based on sexual orientation.
June 16, 2008, after the state office closed for the day
at 5:01 p.m., same-sex marriage became legal in California. November 4, 2008, Proposition 8, the California bal-lot proposition and state constitutional amendment, passed adding a new provision to the California Constitution now providing that “only marriage between a man and a woman is valid or recognized in California.” Same sex marriages ended.
August 4, 2010, United States District Court Judge Vaughn Walker overturned Proposition 8 in Perry v. Schwarzenegger, ruling that it violated both the Due Process and Equal Protection clauses of the United States Constitution. Judge Walker also issued an injunction against enforcing Proposition 8. The Ninth Circuit Court of Appeals continued the stay, and put his ruling on hold pending appeal.
February 7, 2012, a Ninth Circuit Court of Appeals
panel affirmed Walker’s decision declaring the Proposition
8 ban on same-sex marriage to be unconstitutional, but
continued a stay on the ruling barring any marriages from taking place pending further appeals.
May 9, 2012, Barack Obama became the first sitting
U. S. president to publically declare support for the legal-ization of same-sex marriage.
June 5, 2012, a majority of the full Ninth Circuit de-nied a petition for rehearing en banc and stayed the ruling pending appeal.
July 30, 2012, Proposition 8 proponents filed a petition
for certiorari with the U. S. Supreme Court.
December 7, 2012, the Supreme Court granted the petition for certiorari and is expected to issue its ruling in Holllingsworth v. Perry by June 2013.
March 26, 2013, oral argument is scheduled for Propo-sition 8 and the Defense of Marriage Act.
Other points of interest:
In 1985 The City of Berkeley became the first gov -erning entity in the state to recognize same-sex couples legally by enacting its domestic partnership policy for city and school district employees. Berkeley city employee and
gay rights activist Tom Broughman first coined the term
“domestic partner”. All other domestic partnership policies are directly modeled after Berkeley’s policy.
The Defense of Marriage Act (DOMA) enacted Sep
-tember 21, 1996 is a federal law defining marriage as the
legal union of one man and one woman for federal and inter-state recognition purposes in the United State. This
codifies the non-recognition of same-sex marriages for all federal purposes including insurance benefits for govern
-ment employees, Social Security survivors’ benefits, imi
-gration, and the filing of joint tax returns. While President
Clinton signed this into law, he and key legislatures changed their views and advocated for DOMA’s repeal. The Obama administration announced in 2011 that many sections are unconstitutional and they have been found unconstitutional in eight federal courts. The U.S. Supreme Court is also scheduled to hear an appeal in one of those cases United States v. Windsor on March 27, 2013.
As of January 2013 same sex marriage is recognized in nine states: Connecticut, Iowa, Maine, Maryland, Mas-sachusetts, New Hampshire, New York, Vermont and Washington as well as the District of Columbia and two Native American tribes.
Same sex marriage is also recognized in: Argentina, Belgium, Canada, Denmark, Iceland, Israel, Netherlands, Norway, Portugal, South Africa, Spain and Sweden and performed in some jurisdictions in Brazil, and Mexico.
(Installation, continued from page 1.)
Master of Ceremonies, former MCBA president, Len Rifkind kept the program moving with his good natured humor and Otis Bruce presented the MCBA Legal Educa-tion Scholarships to: Kristie Morris, Annie Munene and Diamante Rueda Ortiz, with moving stories of the recipi-ents’ lives.
The silent auction raised $2,215, which will benefit
the Family and Children’s Law Center, and Legal Aid of Marin. Kicked off by a $2,500 check donated by Perry
Litchfield of Resolution Remedies, $15,950 was pledged
to the MCBA Legal Education Scholarship Fund, which included Resolution Remedies’ match of every donation of $150 and below. Thank you to everyone who contributed to the fund and for making this the most successful fund a need so far.
The Blue Lights band provided festive music and a good time was had by all. Band members are also members of the successful Terra Linda High School Mock Trial team, which Joel has coached for many years along with Shelley Kramer and Gordon McAuley.
Outgoing President Jessica Karner summarized a few
highlights of her term including the formation of the Ethics and Pro Bono Committees, the creation of the Discovery Facilitator Program, and the MCBA’s taking the LGBT Pledge for Equality. If there were one word to characterize this busy and successful Karner term, it would be “Com-munity”.
Jack Eskridge, Joel Gumbiner’s law partner for over 20 years spoke about how committed Joel is to social action and to taking all of his many tasks to heart. Jack noted that Joel has served in all leadership positions in the MCBA, gives his full effort and can be counted on always to “Do The Right Thing” with energy and enthusiasm. Joel is an insurance law expert who specializes in representing plaintiffs who have been denied coverage.
Joel thanked his wife Alice and his children Leah and Daniel. Then Joel made perhaps the briefest presentation of any incoming president. He talked about how important it has been for him to be involved in the local bar ever since having been asked to chair the membership committee in 2006. Joel also thanked Executive Director Robynn Gaspar and Jan Salas for their tireless work on behalf of Marin lawyers. He then said he would like all members to become “Engaged Members” and will be encouraging all of us to reach out and invite members to serve on committees and attend events. Joel is committed to making that happen in 2013. A man of few words, Joel is known for his actions. This year is sure to be a year of action.
Barbara Monty is a civil litigation partner in Monty White LLP, a mediator with Resolution Remedies, and a director of the MCBA.
Jessica Karner and Randy Wallace
President Joel Gumbiner, daughter Leah, son Daniel and wife Alice
Judge Lynn Duryee and Barbara Monty
Thank you to
Resolution Remedies & Apex Suites
for supporting the MCBA
(Employment Law continued from page 3.)
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compete against each other in “scrimmages,” each adopting different strategies and approaches to winning the case.
The trial begins with a pretrial motion to either ex-clude evidence or throw out charges under a suspect statute, always on constitutional grounds. Pretrial lawyers must know and argue U.S. Supreme Court and lower court cases and are questioned extensively by the judge. The trial at-torneys give griping opening statements, conduct rigorous direct and cross examinations, make impassioned closing arguments to the jury and know their objections and the rules of evidence. The student witnesses are only provided with the witness statements they gave to the police. They must testify to the jury, stay in character, and endure cross examination without completely capitulating to the cross examiner. If they stray from their witness statements, they face even stiffer cross or impeachment. Many students are stunningly effective lawyers and witnesses. As entertain-ment, it is compelling. There is always enough improvisa-tion to make each trial different. The trials are judged by the Marin County Superior Court judges. Jurors are seasoned litigators who score each student on their performance.
Mock Trial is as competitive a high school sport as any played with a ball.
The judges, scoring attorneys and adult spectators at the Marin Mock Trial competition are often shocked to see trials conducted at such a high level. It is common to hear adults comment, with complete sincerity, that they see lawyers and witnesses as good or better than those they see in trials in that same courthouse every day.
The Marin County Bar Association has sponsored the Mock Trial program for several years since State funding diminished. Nearly two dozen MCBA members volunteer literally hundreds of hours each to coach these ten high school teams. Every year 30+ MCBA members volunteer to score the competition on the last Saturday of January
and the first Saturday of February. Several members score
multiple trials. [If this article so inspires you, why not mark your calendar right now for next year as the MCOE always needs more scoring attorneys].
I am extremely proud of the MCBA for its tremendous support of this valuable program that gives so many stu-dents skills that will serve them their entire lives. Mock Trial students learn to respectfully argue, persuade, speak in public and think on their feet. With these skills, they
become more confident adults. Students develop a deep
respect for the legal system and the complexities of Con-stitutional Law. They also learn to appreciate the role of judges and lawyers in our society and a substantial number of them go on to law school.
Next time you find yourself thinking that the future
of this nation is dim, relax. Your future leaders are solid and are being better prepared for the job than we were so many years ago.
Boss is asking for trouble if he/she/it doesn’t state in writing at the outset what and when Worker will be paid. If Worker’s compensation includes commissions, a new California law requires a written agreement detailing how
they will be computed and paid. Any benefits that have economic value (such as paid time off or health plan ben
-efits) should likewise be stated in writing.
Z. The Ending … Or Is It?
Litigation between Boss and Worker rarely occurs while Worker is still on the job. The great majority of employment cases begin after Worker’s employment has ended. What can be done to keep the end of the employ-ment relationship from becoming the start of open warfare? At Point Z, as at Point A, a lot of turmoil can be avoided by anticipating issues and resolving them before they become problems.
If Employment Is At Will, Hey, What’s The Problem? It is often assumed that employment at will gives
Boss the right to fire Worker for any reason. Not so. Em
-ployment at will gives Boss the right to fire Worker for
any reason except an illegal one. There are many such
exceptions, including for example: firing Worker on the basis of discrimination in its many forms, firing Worker in retaliation for exercising workplace rights, or firing Worker
in violation of contract.
As a practical matter, it’s not a good idea for Boss to
fire Worker without first doing a risk assessment. Questions
to be addressed include the following: What’s our basis for
firing Worker? What’s Worker’s side of the story? What
are chances that Worker will sue? If Worker does sue, are the costs and risks acceptable to us?
Moreover, even if Boss could fire Worker without
incurring potential liability for wrongful termination, it is still open to Worker to assert a multitude of other claims. For example, Worker may assert claims for unpaid wages or seek penalties based on delayed payment of wages, missed meal breaks, missed rest breaks.
OK, So What’s The Solution?
Rather than firing Worker, most often it is in Boss’s
11 (Continued on page 12)
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interest to offer Worker a separation agreement. Boss’s part of the proposed bargain is to provide Worker with
something of value (e.g., severance), and Worker’s part of
the proposed bargain is to give Boss a release of claims. Getting a separation agreement takes Boss longer and
costs more than firing Worker, but once the agreement
is done Boss knows that the relationship with Worker is over for good. Getting a separation agreement gives Worker the power to leave on more favorable terms and with dignity.
What If Worker Just Quits?
The best way for Boss to avoid subsequent claims by a Worker who quits is to take two steps. First, make sure that all employees have been properly informed of their employment law rights, many of which are covered in the poster all employers are required to put up. Second, promulgate a policy that not only permits and welcomes employees to report violations of those rights, but requires them to do so. Once such a requirement is in place, Worker who contemplates asserting claims against Boss will either have to give Boss an opportunity to address them before quitting or have to justify not giving Boss such an opportunity.
Andy Wolfe, formerly s an employment law partner at Ropers Majeski, has recently joined Monty White LL as Of Counsel, where he will continue his employment practice representing employers and employees.
(Employment Law continued from page 10.)
Do you have ideas on how to improve access to justice for the entire community, and not just for those who can afford market-rate attorneys?
I believe the role of a judge is to effectuate justice in a fair and compassionate manner. A judge is a good listener, and an individual who can fairly, patiently, and evenly apply the law to any factual situation. Everyone should have a seat at the table – from the powerful to the poor. The Marin Court is succeeding with that goal. The innovative collaborative justice courts, like drug court and family violence court, Community Court, the family law self-represented litigants calendar, and alternative dispute
resolution programs such as high conflict family law settle -ment conferences, and mandatory settle-ment conferences for unlawful detainers are excellent examples of that suc-cess. I completely support those efforts and hope to preside over matters in these innovative proceedings in the future.
What will be your first assignment on the Bench, and how do you plan to prepare for it?
My first assignment will be civil and criminal trials.
I will also preside over small claims trials, de novo and
restraining order evidentiary hearings. My first two weeks
on the Bench included a comprehensive orientation to the court, where I met with all court managers, observed many kinds of proceedings and shadowed several judges as they handled calendars and trials. I believe that this training has given me a sense of the legal culture in Marin, the operational aspects of the court and has shown me how to effectively undertake my new role as a Marin judge.
What worries you about your new job?
I am starting a new career at 46 years-old. After 14 years of essentially being my own boss, I now have a completely new occupation. I support law enforcement and the role of the prosecutors in keeping our community safe. I also support the important role of defense counsel in assuring that the due process protections of our justice system and Constitution are carefully followed. I look forward to participating in a meaningful way in our crimi-nal justice system. I also look forward to learning more about family law and juvenile court. I am so grateful that so many of our judges have stepped forward as mentors to help me along this path.
(Ethics, continued from page 5.)
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Mr. Rosenberg has practiced law for over 30 years. He is an adjunct Professor of Law at Usf, an approved consultant for the acad-emy of family Mediators and was chair of the Marin county Bar adR section. He is a member of the mediation panels for the U.s. district court, nasd, and all Bay area trial & appellate courts.
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What else do you want our readers to know about you?
I come from an old El Paso family that was driven out of Northern Mexico into the United States by Pancho Villa and his banditos. As a native West Texan, I grew up exploring the badlands of Southern New Mexico with my
father and brothers. We would often go hunting, fishing
and camping under the stars. I try to share my love for nature and the outdoors with Karen and my boys because we live in an extraordinarily beautiful part of the country.
I love to swim and wish I swam more than I do. I am also a huge Texas Tech Red Raider football fan. I hope it is okay for a judge to say, with pride, “Guns-Up”.
Finally, more than anything I want Marin lawyers to know how honored I am to have been appointed to the Bench. Lawyers and pro pers in court deserve respect, patience, and to have their matter, whatever it may be, handled in a fair and prompt manner. They should walk away from the courthouse feeling that they had the oppor-tunity to be heard and that their case was considered fairly. I will strive to be a fair arbiter before all those persons who appear before me.
Understand the Exemption Rules.
Many members think they are exempt from complying with the requirement of 25-hours every 3 years, but they are mistaken. DON’T be one of them! The short version: To be exempt, state and federal employees must be employed in a position that requires them to be an attorney. City, county and superior court employees are NOT exempt. Temporary and contract workers are also not exempt from the rule. Carefully review the State Bar rules on exemptions.
Who Cares If you Lost Your Certificate.
One of the most common excuses for noncompliance
is the lost or misplaced MCLE certificate. FYI: the State
bar does not care. It is your responsibility to maintain good records and keep them in a safe place. Don’t wait until the last minute to start tracking your credits. If you give
your-self plenty of time and realize you cannot find a certificate,
you can always contact the provider for a replacement copy.
I thought They Gave Credit.
It is easy (if you are not paying attention) to misread
the event information and assume they offer MCLE credit, when in fact they are only an approved provider. Especially if you take classes from out-of-state CLE providers, make
sure your certificate states that CLE has been awarded.
Big mistake is assuming that “MCLE Available” means “MCLE Approved”.
Francine Ward is the Ethics Chair of the Marin County Bar Association; she is a Business & Intellectual Property lawyer with a focus on copyrights, trademarks, social media legal issues, publishing law, sweepstakes & contests, privacy law. Francine can be reached at info@ fwardlawyer.com.
(Meet Our Newest judge, continued from page 11.)
To increase sales,
announce a new partner
or advertise a new business:
place your ad in
“The Marin Lawyer”
contact Pat Stone,
Phone: (707) 585-3248
Fax: (707) 585-0844
E-mail: express@sonic.net
Last chance
to place an ad in
The Marin Bar
Association 2013
Member Directory
contact
Pat Stone, Express Printing
Phone: (707) 585-3248
E-mail: express@sonic.net
Drunk Driving
and
DMV Matters
Author: Calif. Drunk Driving Law
A-V Rated - Martindale Hubbell TM Board Certified in DUI Defense
Paul Burglin
MItChell, heDIn, BreIner,ehlenBaCh & BUrglIn Courthouse Square 1000 Fourth St., Suite 570 San rafael, Ca 94901
(415) 453-0534
www.burglin.com
CALENdAR oF EVENTS dETAILS
February 14, 2013Construction Law Sections Speaker: Houman Chitsaz Topic: Construction Delays Location: Resolution Remedies 1 Hour CLE
Contact: bmonty@montywhitelaw.com 12 – 1:30 pm
February 20, 2013
ADR Section Meeting
Topic: What’s New in Mediation? Binding Mediation, eDiscovery Facilitation & More
Speaker: Michael Carbone and Phil Diamond Location: McInnis Club Restaurant
1 Hour CLE
RSVP: Mary McLain mclain.mediator@gmail.com 415-847-8266
12 – 1:30 pm
Probate & Estate Section Meeting Regular Monthly Meeting
Location: Tamalpais Room, The Corporate Center, 750 Lindaro, San Rafael
1 Hour CLE
Contact: ASarreshtehdary@braytonlaw.com 12 – 1:30 pm
February 25, 2013
Probate & Estate Mentor Group Location: 802 B Street, San Rafael
RSVP to Michelle Lerman, Michelle@lermanlaw.com 12 – 1:30 pm
February 26, 2013
Intellectual Property Section Meeting
Topic: Elimination of Bias in the Legal Profession Location: Allman & Nielsen, PC - 100 Larkspur Landing Circle, Ste 212, Larkspur
1 Hour Elimination of Bias
Contact Information: Steven Nielsen - Steve@Niel-senPatents.com - 415-461-2700
12 – 1:30 pm
March 5, 2013
Real Property Section Meeting
Annual Update - 2012 Significant Developments in
California Real Property Law Location: TBD
2 Hours CLE
Contact: jscheer@scheerlawgroup.com 12 – 2 pm
NEw MEMBERS
Deadline for submission of articles,
ads, inserts, and announcements
is the 15th of each month. Thank you.
Magdalena Chattopadhya310 Crescent Village Circle, Suite 1420 San Jose, CA 95134
510-301-7969
magdalena.chattopadhya@gmail.com William Webb Farrer
Law Office of William Webb Farrer
100 Smith Ranch Rd., Ste. 107 San Rafael, CA 94903
415-578-2102 Fax: 415-785-3102 wwfarrer@farrerlaw.org
Gabrielle Gaetani
Family & Children’s Law Center 30 N San Pedro Rd., Ste. 245 San Rafael, CA 94903 415-492-9230
ggaetani@faclc.org www.faclc.org Zachary Kitaynik
Marin County Public Defenders 3501 Civic Center Dr
San Rafael, CA 94901 415-473-6321
Charles P. Litchfield Litchfield Law Group
1000 Fourth Street, Suite 800 San Rafael, CA 94901 415-526-6311
charles@litchfieldlawgroup.com www.litchfieldlawgroup.com
Edmond Francis McGill
McGill Law Office
700 Larkspur Landing Circle, Suite 199 Larkspur, CA 94939 415-508-5323 edmcgill@mac.com www.edmondmcgill.com Jeanne Pieters P O Box 422 Larkspur, CA 94977 415-924-5524 jp@jeannepieters.com Rebekah Sapirstein
Wells Fargo Wealth Management 5758 Geary Bl., Ste. 347 San Francisco, CA 94104 415-222-6474 rebekah.sapirstein@wellsfargo.com Chris Skelton 18 Grove Street Mill Valley, CA 94941 949-466-0998 iamskelton@gmail.com Jeannette A. Vaccaro
Law Office of Jeannette A. Vaccaro
802 B Street
San Rafael, CA 94901 415-878-5300
jav@jav-law.com Celeste Vogler
Law Offices of Celeste Vogler
755 Baywood Dr., 2nd Flr. Petaluma, CA 94954 707-338-2775 Fax: 707-921-7331 celestevogler@gmail.com www.petalumadivorcelawyer.com Sara Wilson 2100 Fourth Street, #355 San Rafael, CA 94901 415-250-1111 wilson.sara.a@gmail.com Steven M. Woodside
Marin County Counsel’s Office
3501 Civic Center Dr., Room 275 San Rafael, CA 94903
415-473-6117 Fax: 415-673-3796 swoodside@marincounty.org
15
CHANGE oF SCENE
THE MARKETPLACE
Anyone wishing to advertise in the Marketplace should send their text ad to MCBA, 101 Lucas Valley Road, Suite 326, San Rafael, CA 94903 with payment of $40 per month, or you may email to: jsalas@marinbar.org . The ad should be no longer than 25 words and paid in advance. For each additional word add $1.
Use the 1031 Exchange Intermediary Other Intermediaries
Call for Advice!
A Qualified Intermediary Providing Real Estate Exchange Services and Expertise with over 3,000 Exchanges facilitated since 1984
www.marin1031exchange.com
David M. Hellman, President TEL: (415) 457-4411 Attorney & CPA FAX: (415) 457-0356
David Hellman, 1031 Exchange Expert at
MARIN COUNTY EXCHANGE COR PORATION
To involve, encourage, and support
bar association members,
to serve as a liaison to the Marin County courts,
and to educate the community and
enhance access to legal services.
MISSIoN STATEMENT oF THE MARIN
CoUNTY BAR ASSoCIATIoN
President OTIS BRUCE, JR President-Elect JESSICA KARNER Secretary ELIZABETH BREKHUS Treasurer JOEL GUMBINER Past President BETH JORDAN 5 Year Past President LEONARD A. RIFKIND Executive Director ROBYNN GASPAR Client Relations Chair JUDITH H. B. COHEN Program Chair ELIZABETH BREKHUS Directors 2011 SARA B. ALLMAN PHILIP R. DIAMOND LOUIS S. FRANECKE PEDRO OLIVEROS KATE ROCKAS Directors 2012 RILEY HURD
LISA SPANN MASLOW JESSICA S. PLINER ERIC STERNBERGER J. RANDOLPH WALLACE
Directors 2013 DAVID I. BROWN CHARLIE DAVIS DRESOW SCOTT ROGERS LAWRENCE A. STRICK FRANCINE WARD 30 n San Pedro Rd, # 140 San Rafael, CA 94903 phone 415.499.1314 fax 415.499.1614
CONTRACT ATTORNEY. Experienced trial attor-ney available for bay area appearances, motions, re-search & writing projects, and trial work. Please con-tact Shelley Kramer, shelley.kramer78@gmail.com. SHARED OFFICE SPACE: Large, sunny office in two-office suite in central San Rafael convenient to
101. Includes space for assistant, conference room, and dedicated off-street parking. Sense of humor pretty much a requirement. Call 454-8980
PREMIUM DOWNTOWN SAN RAFAEL OFFICE: Newly renovated, fully-equipped, state-the-art
of-fice in Courthouse Square, with receptionist, conference room, Westlaw, all amenities; call 415-559-2629.
Robyn Christo Gaw Van Male 1000 Main, 3rd Floor Napa, CA 94559 707-252-9000 Fax: 707-252-0792 rchristo@gawvanmale.com www.gawvanmale.com Sandra Groven Attorney at Law
1346 Fourth Street, Suite 202 San Rafael, CA 94901
415-453-4888 Fax: 415-453-4844 Sharon F. Mah
100 Smith Ranch Road, Suite 326 San Rafael, CA 94903
415-454-9680 Fax: 415-454-6951 sharonfmah@gmail.com
Jeffrey Moss
Law Office of Jeffry A. Moss
35 Mitchell Bl., Ste. 6 San Rafael, CA 94903
415-456-2566 Fax: 415-456-1863 jeff@jeffmoss.com
FIRST CLASS U.S.POSTAGE PAID PERmIT #51 ROhnERT PARk CALIFORnIA dATEd MATERIAL
MCBA encourages submission of articles that may interest the legal community. Letters to the Editor are also welcome and may be published if space permits. Submissions will not be returned. The Editor reserves the right to publish, decline to publish, edit or otherwise modify any submission. Editorial material should be sent to the Marin County Bar Association at the above address.
published by
The Marin County Bar Association 415-499-1314 Fax 415-499-1614
www.marinbar.org MCBA Officers
Joel Gumbiner President Elizabeth Brekhus President Elect Randy Wallace Treasurer Lisa Spann Maslow Secretary Jessica Karner Past President Hon. Michael Dufficy (Ret.) 5 Year Past President
Board of Directors
David I. Brown Paul S. Cohen
Philip R. Diamond Charles Dresow
Michael J. Fish Louis S. Franecke
Beverly R. Green Barbara S. Monty
Jessica Stuart Pliner Dorothy Proudfoot
Kate Rockas Scott Rogers
Barrett R. P. Schaefer Lawrence A. Strick Francine D. Ward
Executive Director Robynn Gaspar
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