International Law - Contra Costa County Bar Association
International Law - Contra Costa County Bar Association
International Law - Contra Costa County Bar Association
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<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer<br />
Volume 22, Number 7 • July 2009<br />
The official publication of the<br />
B A R A S S O C I A T I O N<br />
<strong>International</strong> <strong>Law</strong>
The <strong>Contra</strong> <strong>Costa</strong> <strong>County</strong> <strong>Bar</strong> <strong>Association</strong> is pleased to announce the fourth never annual<br />
Trivia Bowl for Access to Justice<br />
in support of The BAR FUND<br />
Friday, October 2, 2009 • 6:00 – 9:30pm • Blackhawk Museum<br />
$75 per person - $750 reserved table for 10<br />
$100 per person for Sponsors / $1,000 Patron table for 10 (includes recognition in event program)<br />
$500 to enter a team of 3 (100% of team entrance fees may be taken as charitable tax deduction)<br />
Master of Ceremonies Tom Beatty • Judge Hon. Norm Spellberg (ret.) • Game Show Host Brian Bonney<br />
Maserati Sponsors<br />
JAMS • Miller Starr Regalia • Nevin Ramos & Steele<br />
Ferrari Sponsors<br />
Carroll, Burdick & McDonough, LLP • Certified Reporting Services • The Recorder<br />
To Register: Call Michele Vasta at 925.370-2548 with your Visa, MasterCard, American Express, or Discovery Card,<br />
email her at mvasta@cccba.org ~ or ~ send your check, payable to CCCBA, to 704 Main Street, Martinez 94553.<br />
For further information see the calendar insert ~ or ~ contact Lisa Reep at 925.288-2555 or lgreep@cccba.org.
<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer<br />
Volume 22, Number 7 • July 2009<br />
c o n t e n t s<br />
B A R A S S O C I A T I O N<br />
features<br />
6 Doing business in the far east<br />
An overview of how local businesses are faring<br />
in 2009 as compared with a year ago.<br />
Richard Frankel<br />
10 teaching law overseas<br />
A journey of one attorney’s Hungarian assignment.<br />
David Elefant<br />
13 The CCCBA Rallies to Raise Funds<br />
For the Food Bank<br />
Ed Shaffer<br />
16 Local Verdicts guru has<br />
<strong>International</strong> roots<br />
Our local jury verdicts author recalls his time<br />
in Denmark, while detailing some differences<br />
of practicing international law.<br />
Matt Guichard<br />
18 This call may be monitored<br />
What should you do if your client calls you from jail<br />
It depends...<br />
David Briggs<br />
departments<br />
4 Inside<br />
Erika Portillo<br />
9 What clients are saying<br />
about cccba’s lrIS<br />
14 Question Man<br />
What’s the role of immigration<br />
on the U.S. Economy<br />
15 2009 cccba Sustaining <strong>Law</strong> Firms<br />
20 ethics Corner<br />
carol M. Langford<br />
21 New members<br />
22 ClassIFIeds
inside<br />
2009 BOARD of DIRECTORS<br />
Larry Cook President<br />
Ron Mullin President-Elect<br />
Kathy Schofield Secretary<br />
Audrey Gee Treasurer<br />
Robin Pearson Ex Officio<br />
Christopher Bowen<br />
Oliver Bray<br />
Mike Brewer<br />
Jay Chafetz<br />
Virginia George<br />
Peter Hass<br />
Leigh Johnson<br />
Kristen Thall Peters<br />
Ron Rives<br />
Dana Santos<br />
Stephen Steinberg<br />
Candice Stoddard<br />
CCCBA EXECUTIVE DIRECTOR<br />
Lisa Reep: 925.288-2555 • lgreep@cccba.org<br />
CCCBA main office: 925.686-6900 • www.cccba.org<br />
Jennifer Comages<br />
Membership Coordinator<br />
Emily Day<br />
Systems Administrator and<br />
Fee Arbitration Coordinator<br />
Manny Gutierrez<br />
Administrative Assistant<br />
and Legal Interviewer<br />
EDITOR<br />
Candice Stoddard<br />
925.942-5100<br />
ASSOCIATE EDITOR<br />
Nancy J. Young<br />
925.229-2929<br />
BENCH LIAISON<br />
Hon. Mary Ann O'Malley<br />
925.646-4001<br />
BOARD LIAISON<br />
Candice Stoddard<br />
925.942-5100<br />
COURT LIAISON<br />
Kiri Torre<br />
925.957-5607<br />
ADVERTISING/DESIGN<br />
Young Design & Production<br />
925.229-2929<br />
PRINTING<br />
Excel Graphics<br />
925.552-9998<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer<br />
PHOTOGRAPHER<br />
Moya Fotografx<br />
510.847-8523<br />
Maria Navarrete<br />
LRIS Coordinator<br />
<strong>Bar</strong>bara Tillson<br />
Moderate Means Program<br />
Coordinator<br />
Michele Vasta<br />
Section Liaison / Education<br />
& Programs Coordinator<br />
EDITORIAL BOARD<br />
Kate Bekins<br />
925.284-0480<br />
Mark Ericsson<br />
925.930-6000<br />
Matthew P. Guichard<br />
Local Civil Jury Verdicts<br />
925.459-8440<br />
Patricia Kelly<br />
925.258-9300<br />
Nicole Mills<br />
925.351-3171<br />
Craig Nevin<br />
925.930-6016<br />
David Pearson<br />
925.287-0051<br />
Erika Portillo<br />
925.459-8440<br />
Andy Ross<br />
925.296-6000<br />
Kathy Schofield<br />
925.253-7890<br />
Audrey Smith, JFK Liaison<br />
925.969-3561<br />
Harvey Sohnen<br />
925.258-9300<br />
Marlene Weinstein<br />
925.942-5100<br />
The <strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer (ISSN 1063-4444) is published<br />
monthly by the <strong>Contra</strong> <strong>Costa</strong> <strong>County</strong> <strong>Bar</strong> <strong>Association</strong> (CCCBA),<br />
704 Main Street, Martinez, CA 94553. Annual subscription of $25<br />
is included in the membership dues. Second-class postage paid<br />
at Martinez, CA. POSTMASTER: send address change to the<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer, 704 Main Street, Martinez, CA 94553.<br />
The <strong>Law</strong>yer welcomes and encourages articles and letters from<br />
readers. Please send them to Nancy J. Young, Associate Editor,<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer, P.O. Box 1867, Benicia, CA 94510.<br />
The CCCBA reserves the right to edit articles and letters<br />
sent in for publication. All editorial material, including editorial<br />
comment, appearing herein represents the views of the respective<br />
authors and does not necessarily carry the endorsement of<br />
the CCCBA or the Board of Directors. Likewise, the publication<br />
of any advertisement is not to be construed as an endorsement<br />
of the product or service offered unless it is specifically stated<br />
in the ad that there is such approval or endorsement.<br />
by Erika Portillo<br />
Welcome to the <strong>International</strong> <strong>Law</strong> issue. <strong>International</strong> and immigration law are relevant<br />
topics for all lawyers. To better serve our clients in today’s international environment,<br />
our task should be to keep up with the changes in these areas.<br />
In our first article, Dick Frankel tells us what local business executives and owners<br />
(involved in importing, distribution and sales of goods produced in the Far East) are<br />
saying about doing business in 2009 as compared with a year ago. Next, David Elefant<br />
shares his experience with the Center for <strong>International</strong> Legal Studies. Through its Senior<br />
<strong>Law</strong>yers Program (which places U.S. attorneys in eastern European law schools for<br />
a minimum commitment of two weeks), David was assigned to the University of<br />
Debrecen in Hungary. Finally, Matt Guichard recalls his travels to Denmark, where<br />
he participated in an internship as part of his studies in Salzburg, Austria, while detailing<br />
some of the differences and challenges of practicing international law.<br />
“What’s the role of immigration on the U.S. economy” As an immigration law practitioner,<br />
I would like to share my opinion on this month’s Question Man. There are several myths<br />
out there that have caused people to believe that immigration has a negative impact on<br />
the U.S. economy. For instance, the opinion of some is that “immigrants are a drain on<br />
the U.S. economy.” The fact is that the immigrant community is not a drain on the U.S.<br />
economy, but proves to be a net benefit. Research reported by both the CATO Institute<br />
and the President’s Council of Economic Advisors reveals that the average immigrant<br />
pays a net of $80,000 more in taxes than they collect in government services. For<br />
immigrants with college degrees, the net fiscal return is $198,000.<br />
Further, the American Farm Bureau asserts that without guest workers, the U.S.<br />
economy would lose as much as $9 billion a year in agricultural production and 20%<br />
of current production would go overseas [AILA InfoNet, Doc. No. 09032667, posted<br />
March 26, 2009].<br />
Another concern often expressed, is that “immigrants send all their money back to<br />
their home countries.” As such, there is no benefit to the U.S. economy. The fact is,<br />
while it is true that immigrants remit billions of dollars a year to their home countries,<br />
that is one of the most targeted and effective forms of direct foreign investment. Additionally,<br />
consumer spending of immigrant households and their businesses contribute<br />
$162 billion in tax revenue to U.S. federal, state and local governments [AILA InfoNet,<br />
Doc. No. 09021836, posted February 18, 2009].<br />
The disseminating of not only negative but positive information will enable people to<br />
have an informed opinion on immigration, and to understand more about its advantages.<br />
Hopefully, when the time comes to decide on immigration reform, our representatives<br />
will make an informed decision, resolving our immigration problem once and for all. u<br />
— Erika Portillo practices with the firm of Guichard, Teng & Portello, APC, with a focus on<br />
immigration and civil law, and matters related to Mexican law.<br />
4 July 2009
CCCBA Returns to Cabo!<br />
November 7 – 14, 2009<br />
Crowne Plaza Los Cabos<br />
All Inclusive Resort!<br />
Book now! $995 to $1200 per person, double occupancy<br />
(includes travel, food, recreation, tips and drinks at a highly rated resort on the Sea of Cortez)<br />
Additional $200 seminar fee for each attorney attending includes 6 hours MCLE credit*<br />
(Ethics and Elimination of Bias in the Legal Profession), plus optional judge pro tem update classes<br />
MCLE by Justice Mark Simons, Hon. Susanne Fenstermacher, Hon. James Libbey (ret.), Hon. Lowell Richards<br />
It’s as Easy as 1-2-3 to sign up!<br />
1. Pay the seminar fee to CCCBA<br />
2. Book the trip yourself any time (details from Lowell Richards)<br />
3. Choose your own travel dates, times and airport for greater convenience<br />
Then go, learn and enjoy!<br />
~ ~<br />
Please contact Lowell Richards for details at ler@lerichards.com or 925.890-3207 (cell)<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer 5
Doing Business<br />
in the Far East<br />
by Richard Frankel<br />
So, you want to purchase some new clothing or bed linens on sale over the July 4th weekend Macy’s is most likely<br />
having another sale. Chances are that the new dress, shirt, trousers or bed linens are made somewhere in the Far East.<br />
This article is a sampling of what local business executives and owners involved in importing, distribution and sales<br />
of goods produced in the Far East are saying about doing business in 2009 as compared with a year ago.<br />
China<br />
Textile mills are shutting down with great<br />
frequency. The Chinese mills simply do not<br />
have enough business to stay open regularly.<br />
Mills are converting from producing fabric<br />
to ready-to-wear merchandise. Mills that<br />
used to run 24/7 and were previously stockpiling<br />
fabric have ceased. Now, before any<br />
fabric is produced, the mills want a confirmed<br />
order. Delivery dates are now more<br />
than 120 days out, when formerly it was<br />
60 to 90 days. Now, before placing any<br />
orders, importers must provide a mill with<br />
an irrevocable letter of credit. Importers<br />
previously negotiated terms. Forget negotiating<br />
terms. Previously importers could<br />
rest assured that fabric would be ordered<br />
without any “contamination.” Now contamination<br />
is rampant. Fabric is of poor<br />
quality, if not wholly unsuitable. Quality<br />
control has deteriorated.<br />
According to one U.S. company president,<br />
Chinese manufacturers increasingly<br />
are desirous of having an office and showroom<br />
in China. In one particular location,<br />
there are probably 30 million people who<br />
reside in a defined geographical area with<br />
about 1,000 family-owned small factories.<br />
There are a substantial number of government<br />
owned and operated factories competing<br />
with family-owned manufacturing<br />
facilities. Presently, there is simply not<br />
enough demand from the U.S. to maintain<br />
the existence of all these factories. The<br />
Chinese government has routinely been<br />
providing rebates on the order of about<br />
2%. Roughly one-fifth of all purchase<br />
orders include factory-owner rebates.<br />
Customers are now demanding part of<br />
the rebate. Chinese fabric exports are down<br />
about 35%. Hong Kong contains a vast<br />
storage facility of empty containers. Profit<br />
margins have shrunk from about 30%<br />
down to about 7%.<br />
Retailers and wholesalers indicate the<br />
only way they will effectively negotiate a<br />
business transaction is to personally visit<br />
manufacturing facilities in China or other<br />
parts of the Far East. Personal relationships<br />
with the owners and key manufacturer<br />
representatives are of the utmost importance.<br />
Email and telephones are not effective<br />
long-term. When negotiating with<br />
a factory, U.S. importers are consistently<br />
reminded that the factory owners always<br />
have a better customer that they will do<br />
business with. There is always a better<br />
price that can be negotiated. Unless U.S.<br />
retailers and wholesalers have someone<br />
on staff who can speak the language, the<br />
transaction will not be favorable. The<br />
foreign factories and manufacturers will<br />
take every advantage they can.<br />
Once the prices are negotiated and the<br />
product produced, the product must be<br />
tested locally. Otherwise, the products<br />
may not be sellable and the quantity<br />
ordered will not be what has been received.<br />
Testing is another cost of doing business,<br />
and often factories will negotiate to pay<br />
for the testing with money under the<br />
table. If an importer orders sheets with a<br />
500-thread count and receives them at<br />
350-thread count, that’s part of the deal.<br />
Fewer factories and significant discounts<br />
will inevitably lead to fewer retailers<br />
because the margins are disappearing.<br />
Price reduction is the name of the game<br />
and everyone seems to be squeezing the<br />
last dime out of a transaction.<br />
One U.S. distributor and internet<br />
retailer of Chinese goods indicates that<br />
Chinese manufacturers are now developing<br />
their own brands and selling them to<br />
the local market in China instead of very<br />
low margin exports. They’re trying to free<br />
themselves from dependence on the U.S.<br />
One CEO observed that governmentowned<br />
factories are expanding and buying<br />
up private factories hurting for cash.<br />
6 July 2009
Another manufacturer and importer<br />
of clothing indicates that there have been<br />
recent significant price increases and a<br />
dramatic loss of business with Chinese<br />
factories. There is a significant tension<br />
between labor and management. It is<br />
harder to do business and compete with<br />
the rising prices and constant battles to<br />
lower margins. In addition, there are new<br />
labor laws in China that provide for greater<br />
worker protection that increase costs.<br />
India<br />
Times are different in India as well. A<br />
mill routinely would have 100 to 120<br />
employees, working eight hours a day,<br />
often six or seven days a week, and with<br />
more than one shift. Employees are now<br />
reduced to a single shift, six hours per<br />
day, perhaps five days a week. Weekend<br />
work no longer exists.<br />
India has an excellent business relationship<br />
with the U.S., in large part because<br />
there is a comfort level dealing with a<br />
population that is generally English speaking.<br />
The Indian middle class is expanding<br />
at a rate that the U.S. can only envy. A<br />
U.S. executive states that the Indian<br />
population is enamored with President<br />
Obama. They love his demeanor and<br />
knowledge. In addition, under President<br />
Obama, H-1B visas have opened up<br />
significantly. Indian mills are now opening<br />
up retail stores, which encourage even<br />
more business.<br />
Current Trends<br />
• Much of the changes in the Far East<br />
emanate from U.S. shopping habits and poor<br />
economy. Macy’s and Nordstrom’s customers<br />
are now frequenting Ross. The same merchandise<br />
can be purchased at all three stores, but at<br />
a substantial discount at Ross.<br />
• U.S. importers now have pirates on their<br />
radar. Importers and manufacturers are calling<br />
their insurance carriers to determine the cost of<br />
new insurance premiums as a result of Somalia<br />
pirate activities.<br />
• The Department of Homeland Security<br />
has cost consumers dearly with respect to importing<br />
goods. Once ships dock in the U.S., the<br />
imported goods pass through the checkpoint<br />
system at each port for an intensive inspection. u<br />
Elder <strong>Law</strong> is<br />
Alzheimer’s<br />
Planning<br />
“A unique and effective style -<br />
a great mediator”<br />
Please note<br />
new Address!<br />
Candice Stoddard<br />
The average survival rate is eight years after being<br />
diagnosed with Alzheimer’s — some live as few as<br />
three years after diagnosis, while others live as long<br />
as 20. Most people with Alzheimer’s don’t die from<br />
the disease itself, but from pneumonia, a urinary<br />
tract infection or complications from a fall.<br />
Until there’s a cure, people with the disease will<br />
need caregiving and legal advice. According to the<br />
Alzheimer’s <strong>Association</strong>, approximately one in ten<br />
families has a relative with this disease. Of the<br />
four million people living in the U.S. with<br />
Alzheimer’s disease, the majority live at home —<br />
often receiving care from family members.<br />
If the diagnosis is Alzheimer’s,<br />
call elder law attorney<br />
Michael J. Young<br />
Estate Planning, Disability, Medi-Cal,<br />
Long-term Care & VA Planning<br />
Protect your loved ones, home and independence.<br />
n<br />
925.256.0298<br />
www.YoungElder<strong>Law</strong>.com<br />
1931 San Miguel Drive, Suite 220<br />
Walnut Creek, California 94596<br />
and Mediation Center<br />
Ron Mullin<br />
Willows Office Park p 1355 Willow Way, Suite 110<br />
Concord, California 94520<br />
Telephone (925) 798-3413 p Facsimile (925) 798-3118<br />
Email ronald@mullinlaw.com<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer 7
The <strong>Law</strong> Offices of David M. Lederman<br />
David M. Lederman<br />
Certified Family <strong>Law</strong> Specialist<br />
State <strong>Bar</strong> Board of Legal Specialization<br />
Tom Smith<br />
Associate Attorney<br />
Practicing exclusively in all aspects of Family <strong>Law</strong><br />
in Walnut Creek and Antioch<br />
3432 Hillcrest Avenue • Suite 100 • Antioch, California 94531<br />
309 Lennon Lane • Suite 102 • Walnut Creek, California 94598<br />
Phone 925.522-8889 • Fax 925.522-8877<br />
www.ledermanlaw.net<br />
Walnut Creek 925.210.8984<br />
Oakland 510.251.3808<br />
San Francisco 415.249.0348<br />
Sacramento 916.648.2672<br />
Business Escrow Services at<br />
Mechanics Bank.<br />
Mechanics Bank Business Escrow Services<br />
Department offers a wide range of escrow<br />
services for attorneys. We are the experienced,<br />
neutral third party you need to manage your<br />
client’s business transactions in accordance<br />
with the terms of the escrow agreement. Call<br />
us today to learn how we can help you with:<br />
• Stock Transfers and Merger Acquisitions<br />
• Subscription Offerings<br />
• Professional Practice Sales<br />
• Holding Escrows<br />
• Bulk Sales<br />
• Depository for 1031 Exchanges<br />
The goods then go offsite where they are theoretically<br />
inspected again. Importers complain<br />
that pilferage is a fact of life. The goods are<br />
eventually available for distribution 7 to 14<br />
days after arrival.<br />
• The present overabundance of product will<br />
impact the 2009 holiday season. Because of high<br />
inventory and unsold merchandise, these goods<br />
will be discounted and sold for the holidays.<br />
Anyone who is interested in doing business<br />
throughout the world should look at<br />
internet resources from the World Bank,<br />
which can be found at www.worldbank.<br />
org. With respect to doing business in<br />
China, for example, it is a formidable entity<br />
for global business. The world is indeed<br />
flat. China (with a population of 1.3 billion)<br />
is 83 out of 181 world economies in the<br />
ease of doing business. It’s in the bottom<br />
quarter percentile for starting a business<br />
and near last in dealing with construction<br />
permits. China is in the bottom half of the<br />
world economies with respect to employing<br />
workers. To start a business in China,<br />
for example, it normally takes about 40<br />
days, including 14 procedures from obtaining<br />
notice of pre-approval of the company<br />
name to registering with the social welfare<br />
insurance center. Construction permits<br />
normally take 336 days and require 37<br />
steps from requesting and obtaining<br />
approval of the project proposal from the<br />
Municipal Development and Reform<br />
Commission to review of construction<br />
drawings by Shanghai Police and Traffic<br />
Police General Team. Terminated employees<br />
in China receive an average of 91 weeks<br />
of severance pay.<br />
It was not many years ago when a<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>County</strong> law firm thought it<br />
was a big deal to transact business “out<br />
of county.” It’s a new day. China, Vietnam,<br />
Cambodia, Thailand, India and Pakistan<br />
are certainly “out of county.” u<br />
www.mechanicsbank.com<br />
MEMBER FDIC<br />
Business<br />
Banking<br />
Corporate<br />
Banking<br />
Wealth<br />
Management<br />
Personal<br />
Banking<br />
• <strong>Contra</strong>ctor Retention/Construction <strong>Contra</strong>ct<br />
• Controlled Disbursement Accounts<br />
— Dick Frankel is a business<br />
and employment attorney<br />
with Frankel & Goldware in<br />
San Ramon. The comments<br />
attributed in this article are<br />
based upon interviews with<br />
Frankel & Goldware clients.<br />
MEC 2719 <strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer Mag 4.6875x4.5625_v4.indd 1<br />
7/31/08 7:01:04 PM<br />
8 July 2009
What clients are saying about<br />
CCCBA’s <strong>Law</strong>yer Referral & Information Service<br />
Martha McQuarrie was very helpful.<br />
She gave me very practical advice<br />
about what to say in the hearing<br />
without simply saying, “You need to<br />
hire an attorney, here is my required<br />
retainer.” Through her advice I was<br />
able to negotiate an equitable settlement<br />
with opposing counsel. I would not hesitate<br />
to contact Marti directly should I<br />
require legal services in the future.<br />
Darya Druch was extremely helpful and<br />
was very honest; she guided me to make<br />
the right decision in my situation. She<br />
was very knowledgeable and professional!<br />
I was so happy with her. She really took<br />
the time to talk to me about all my options<br />
and really “cared” about my situation. I<br />
would and already have referred her to<br />
anyone who needs an attorney.<br />
I felt the information I received from<br />
Eric Samuels was very helpful. He<br />
really gave me a lot of information<br />
during my consultation. If down the<br />
road I need to hire an attorney for this<br />
matter I would definitely hire him.<br />
Anne-Leith Matlock was<br />
very helpful and if / when we<br />
need further help, we will<br />
call her.<br />
I thought David Timko was very helpful<br />
and up front with me. Even though he<br />
didn’t have enough information to give<br />
me the answer I was hoping for about my<br />
retirement, he did point me in the direction<br />
to get some answers that I needed. I<br />
appreciated all his help.<br />
I’d like to take this opportunity<br />
to express my most sincere appreciation<br />
for everything that my<br />
attorney did for my difficult<br />
and desperate situation. I am<br />
thankful to attorney David<br />
Hermelin and his secretary for being able<br />
to communicate with a Spanish-speaking<br />
client.<br />
Chris Arras provided me with an excellent<br />
letter to a troublesome tenant.<br />
Heather Kuratek was so helpful and<br />
generous with her time, knowledge and<br />
follow-up, and made me feel heard and<br />
understood. If I need an attorney in the<br />
future, she would be my first choice, and<br />
I’d recommend her.<br />
Andrew Shalaby was very a positive<br />
attorney and went out of his way to advise<br />
and help me with my case. I received<br />
information appropriate to my situation.<br />
I was very happy with Andrew<br />
Steinfeld, and I will be using<br />
his services at a later date.<br />
Thank you for your great<br />
services — that helped me<br />
immensely.<br />
Mr. Jon Rathjen was very<br />
thorough during our initial<br />
meeting. He made sure to<br />
answer all the questions I<br />
had. I did not feel pressure<br />
to finish within the half<br />
hour. He seemed very caring.<br />
u u u u u<br />
Why you should make referrals to CCCBA’s LRIS<br />
• Our LRIS is the only State <strong>Bar</strong> certified (certification #0018) and American <strong>Bar</strong> <strong>Association</strong><br />
approved lawyer referral service in our county;<br />
• LRIS has been providing quality referrals as a public service since 1978;<br />
• LRIS panel attorneys are required to meet specific experience requirements as a prerequisite to joining the service;<br />
• Every LRIS attorney is required to carry malpractice insurance;<br />
• LRIS has an experienced, friendly and knowledgeable staff to assist you.<br />
If you have any questions or would like more information, please contact the LRIS staff at 925.686-6900.<br />
If you’re interested in joining the LRIS, please contact Maria Navarrete, LRIS Coordinator, at 925.370-2542<br />
or go to “Join the LRIS” under “Member Resources” at www.cccba.org.<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer 9
Teaching<br />
<strong>Law</strong><br />
Overseas<br />
by David Elefant<br />
The email had been sitting in<br />
MY IN-box for WELL ovER a YEAR.<br />
Every few months I’d look at it and check<br />
out the website of the organization that sent<br />
it. An offer to teach law overseas sounded<br />
intriguing, but was it legitimate<br />
The email was from the Center for<br />
<strong>International</strong> Legal Studies (CILS), a nonprofit<br />
based in Salzburg, Austria. CILS<br />
sponsors a variety of educational programs,<br />
one of which is their Senior <strong>Law</strong>yers<br />
Program, which places U.S. attorneys in<br />
eastern European law schools. I was hesitant,<br />
so I contacted some CILS alumni.<br />
After receiving such enthusiastic responses,<br />
I submitted an application. The short<br />
appli cation listed all the countries in which<br />
CILS had participating universities, and<br />
asked to which countries I would not want<br />
to be assigned, as well as whether I had<br />
ancestral ties to any eastern European<br />
country. The minimum commitment is<br />
two weeks; most participants stay three<br />
to four weeks or longer.<br />
In May of last year, following an interview<br />
in San Francisco, I was accepted into<br />
the program. Shortly thereafter, I received<br />
notification that I was assigned to the<br />
University of Debrecen in Hungary. I had<br />
never heard of Debrecen. From a quick<br />
internet check, however, I learned it is the<br />
second largest city in Hungary, about<br />
three hours east of Budapest; very close<br />
to the Romanian border.<br />
Before leaving for the teaching assignment,<br />
all participants attend a mandatory<br />
week-long orientation in Salzburg. The<br />
week was like going back to college, but<br />
with no pressure. We attended class five<br />
hours a day and it was a joy. Lectures<br />
covered a variety of topics, including<br />
teaching techniques for eastern European<br />
students, comparative legal systems,<br />
eastern European judicial systems, the<br />
European Union (EU), as well as the<br />
nuts and bolts of going overseas to teach.<br />
One afternoon, we even had a video link<br />
with universities in Poland, Latvia and<br />
Hungary where we could speak directly<br />
with students and faculty. The venue for<br />
the orientation was the “Schloss [German<br />
for castle] Leopoldskron,” which looks<br />
out to a beautiful lake with the Austrian<br />
Alps in the background. In fact, it was<br />
the setting for the 1960s movie, Sound of<br />
Music. One of the most enjoyable aspects<br />
of the program was the opportunity to<br />
get to know other attorneys from all over<br />
the U.S. who shared a love of teaching<br />
and travel.<br />
When I eventually arrived in Debrecen<br />
(via Chicago, Amsterdam, Frankfurt and<br />
Budapest), I was greeted at my apartment<br />
by one of the law school faculty members.<br />
Participating attorneys do not receive<br />
any monetary compensation for teaching,<br />
although the University provides an<br />
apartment and some of the meals. The<br />
following day was a free day to get oriented,<br />
and after spending the morning finishing<br />
up my lecture notes for the next day, I<br />
met two of my students who had volunteered<br />
to show me around. Both were<br />
fifth-year law students (law school in<br />
Hungary is a five-year program that<br />
combines undergraduate and graduate<br />
work followed by a three-year internship).<br />
They both enjoyed practicing their<br />
English with a native speaker and laughed<br />
at my feeble attempts to pronounce<br />
Hungarian words.<br />
While Debrecen is the second largest<br />
city, it only has 225,000 inhabitants, and<br />
is an attractive and very livable city. Many<br />
Hungarians I met outside of the University<br />
did not speak English, though most<br />
connected with the University were<br />
bilingual if not trilingual. Many age 50<br />
and over speak Russian as a second language;<br />
those in their 30s and 40s often<br />
speak German as a second language,<br />
whereas those in their 20s and younger<br />
speak English.<br />
10 July 2009
All of my students had a basic understanding<br />
of English; a few were fluent,<br />
often the result of having spent some time<br />
in England. None had ever visited the<br />
U.S. To break the ice, I started my first<br />
lecture by placing maps of the U.S. and<br />
California on the wall. The students were<br />
shocked when I told them the population<br />
of our state, as Hungary’s entire population<br />
is about 10 million. When asked what<br />
they knew about California, they were all<br />
familiar with San Francisco (most had seen<br />
“The Rock”) and Los Angeles (Hollywood<br />
and Disneyland) — and got a kick out of<br />
knowing who our Governor is.<br />
All of my lectures were in English; I<br />
spoke slowly and whenever I used an<br />
unfamiliar word or technical term, one<br />
of the fluent students would look it up<br />
and then translate for the rest of the class.<br />
Instructors and their host university<br />
jointly determine the subject matter of<br />
the lectures. I divided my lectures into<br />
two broad areas: the first, a general overview<br />
of our system of government, rule<br />
of law, Constitution, separation of powers,<br />
and the state and federal judicial systems;<br />
the second was focused on U.S. business<br />
organizations. I had a detailed PowerPoint<br />
presentation to accompany the lectures,<br />
which helped those less proficient in<br />
English to follow along.<br />
Outside of class, I was guided around<br />
town and shared a number of meals with<br />
some of my students. I learned as much<br />
from them as they did from me. I was in<br />
Debrecen in late September and early<br />
October of last year, so the hot topics of<br />
conversation were the U.S. election and<br />
the financial meltdown. Students were<br />
curious about life in America and whether<br />
what they saw in the movies was accurate.<br />
Since they were all students of the law,<br />
we talked about a wide range of legal<br />
topics, including the death penalty (which<br />
has been eliminated in the EU) and the<br />
fascinating concept of equal protection.<br />
We discussed the recent gay marriage case<br />
in California and what might happen<br />
under the full faith and credit clause when<br />
a gay couple from California moves to<br />
another state. Several EU member nations<br />
(Spain and Holland, for example) recog- u<br />
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<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer 11
nize gay marriage, whereas Hungary does<br />
not — so the issue had relevance to<br />
Hungarian students. Many had an<br />
impressive understanding of the U.S. legal<br />
system, including our Supreme Court and<br />
some of its more notable decisions.<br />
One morning, my host arranged for a<br />
tour of the local circuit court and meeting<br />
with some of the judges. The courthouse<br />
is a three-story red brick building, completed<br />
just a few years ago. Its exterior<br />
seems to be a frequent subject of dis cussion<br />
(most of it critical), however, the interior<br />
is spectacular. The deputy chief judge took<br />
us on a 45-minute tour of the courthouse,<br />
with frequent stops to discuss Hungarian<br />
and U.S. law. She didn’t speak any English,<br />
so my university host served double duty<br />
as translator. One of the most interesting<br />
rooms was the one from which witnesses<br />
in criminal cases — whose identity was<br />
being protected — would testify. Apparently,<br />
the witness can be seen on a closedcircuit<br />
TV monitor. Only the judge can<br />
see the witness and the witness’ voice is<br />
modified so s/he can’t be identified. I<br />
explained that in the U.S., a criminal<br />
defendant has the right to confront and<br />
cross examine the witnesses against him<br />
or her. This led to a discussion of the witness<br />
protection program, of which they<br />
were familiar thanks to Hollywood.<br />
Another significant difference between<br />
our systems: if a criminal defendant is<br />
acquitted, in Hungary the prosecution<br />
has the right to appeal (there are no juries<br />
in Hungary). There are five courtrooms<br />
on the ground floor, each with hardwood<br />
walls and flooring, with quotes from the<br />
Hungarian constitution in metal inlay<br />
along the walls.<br />
Following the tour, the chief judge<br />
invited all of us into her spacious chambers<br />
for conversation, snacks and drinks. We<br />
continued discussing differences in our legal<br />
systems, but the conversation eventually<br />
turned to my impressions of Debrecen<br />
and the extension of an invitation to<br />
return. I had brought a box of candy and<br />
the judges presented me with a beautiful<br />
picture book of Debrecen.<br />
Each host university has a faculty<br />
member affiliated with CILS, and I was<br />
extremely fortunate to have the very best<br />
in the entire program. Between classes<br />
and on weekends, he was a wonderful host<br />
and tour guide. We visited different<br />
regions in eastern Hungary, border cities<br />
in both Romania and Slovakia, and enjoyed<br />
a wonderful weekend in Budapest. And<br />
thanks to Skype, we’ve maintained frequent<br />
contact.<br />
I plan to remain active in CILS and<br />
seek another assignment next year. u<br />
David J. Elefant practices<br />
estate planning, probate<br />
and trust administration<br />
in Walnut Creek. He serves<br />
as a co-chair of CCCBA’s<br />
Conservatorship/Probate/<br />
Trust Section.<br />
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12 July 2009
The CCCBA Rallies to Raise Funds for the Food Bank<br />
by Ed Shaffer of Archer Norris, Chair of the Food From The <strong>Bar</strong> Committee<br />
The CCCBA is pleased to announce the results of this year’s Food From The <strong>Bar</strong> fundraiser for the Food Bank of <strong>Contra</strong> <strong>Costa</strong> and Solano. In May, 42 law offices<br />
donated $75,000 and collected 3,700 pounds of food. Each dollar contributed can buy enough food for three meals. The CCCBA and Food Bank are especially<br />
pleased by this year’s totals, given the economic conditions. • More than 200 attorneys and guests attended Res Ipsa Jokuitur, the comedy night at Back Forty<br />
Texas BBQ, where they enjoyed a barbecued buffet dinner and were entertained by Deb & Mike and well-known political satirist Will Durst. As a special treat,<br />
Associate Justice Maria Rivera of the California First District Court of Appeal served as MC. • This marks the 17th annual Food From The <strong>Bar</strong>, and the 14 th Res Ipsa<br />
Jokuitur. Over the years, county attorneys have donated $740,000 and 52 tons of food, making the <strong>Bar</strong> <strong>Association</strong> one of the Food Bank’s largest supporters.<br />
As a way to encourage competition and stimulate donations, the <strong>Bar</strong> declares winners in five categories based on highest per-capita contribution.<br />
The winners for 2009 are:<br />
Lyon & Quintero<br />
West <strong>County</strong><br />
<strong>Law</strong> Offices of Suzanne Boucher<br />
1-10 employees<br />
Bramson, Plutzik, Mahler & Birkhaeuser<br />
11-20 employees<br />
Bowles & Verna<br />
21-50 employees<br />
Archer Norris<br />
51+ employees<br />
Creative fundraising efforts included a rock-band contest, wine tasting, walk-a-thon, ice cream social, and miniature golf through the office.<br />
Attorneys also solicited donations from vendors, restaurants and other businesses, who gave goods and services that were auctioned or raffled.<br />
Members of the Food From The <strong>Bar</strong> Committee<br />
Renee Baptiste Food Bank of <strong>Contra</strong> <strong>Costa</strong> & Solano<br />
Dan Birkhaeuser Bramson, Plutzik, Mahler & Birkhaeuser<br />
Suzanne Boucher <strong>Law</strong> Office of Suzanne Boucher<br />
Chad Gallagher Miller Starr Regalia<br />
<strong>Bar</strong>bara Jewell Gagen, McCoy, McMahon, Koss, Markowitz & Raines<br />
Michelle Moore Morrison & Foerster<br />
Adriana Quintero Lyon & Quintero<br />
Lisa Reep <strong>Contra</strong> <strong>Costa</strong> <strong>County</strong> <strong>Bar</strong> <strong>Association</strong><br />
Lisa Roberts McNamara, Dodge, Ney, Beatty, Slattery,<br />
Pfalzer, Borges & Brothers<br />
Ed Shaffer (Chair), Archer Norris<br />
Monica Sloboda Morgan Miller Blair<br />
Geoffrey Steele Nevin, Ramos & Steele<br />
Heidi Timken Timken Johnson Hwang<br />
Businesses Donating Goods, Services or Cash for the 2009 Food From The <strong>Bar</strong> Fundraiser<br />
Benefiting the Food Bank of <strong>Contra</strong> <strong>Costa</strong> and Solano (partial list)<br />
AAA Business Supplies & Interiors<br />
Access Information Management<br />
Ace Hardware, Martinez<br />
Aiken & Welch, Inc.<br />
Associated Printing Service<br />
Atkinson Baker Avon<br />
Back Forty Texas BBQ<br />
Bing Crosby’s<br />
Budweiser<br />
Buck Stove Spa & Fan Center<br />
Buckhorn Grill<br />
Caffè California<br />
Canihan Family Wines<br />
Chili’s Grill & <strong>Bar</strong><br />
Clayton Books<br />
Cline Cellars<br />
Collage Hair Salon<br />
Compu<strong>Law</strong><br />
Computer Sales & Service<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>County</strong> <strong>Bar</strong> <strong>Association</strong><br />
Copy Mat<br />
Cor-O-Van<br />
Courtcall LLC<br />
Danville Cigar<br />
Danville Rotary<br />
Diablo Country Club<br />
Diablo Creek Golf Course<br />
Diablo Hills Golf Course<br />
Diablo View Cleaning<br />
Dog Bone Alley<br />
Dragon 2000<br />
East Bay Florist/Flowers<br />
Entourage Spa<br />
Julia Estigoy (massage therapist)<br />
Excel Roofing Service<br />
First Republic Bank<br />
Food for Thought Catering<br />
Forbes Mill Steakhouse<br />
Forma Gym<br />
Andrea Fohrman (jewelry artist)<br />
Fusion 3 Salon/Spa<br />
Gilardi & Co.<br />
Golden Gate Reporting, Inc.<br />
Golf Professional<br />
Granshaw Florist<br />
Great America<br />
Headways (Michelle Christensen)<br />
Heritage Bank<br />
Ikon<br />
The Innisfree Companies<br />
Its It<br />
La Buena Vida<br />
La Fogata Restaurant<br />
Lark Creek<br />
Kelly Link: The Plant Lady<br />
Lolonis Winery<br />
Kinder’s<br />
Madrona Vineyards<br />
Maggieray’s <strong>Bar</strong>beque<br />
Mary Francis Purses<br />
Mary Kay<br />
Massimo Ristorante<br />
Mecca Restaurant<br />
The Mechanics Bank<br />
Merrill Corporation (office services)<br />
North Main Pet Lodge<br />
The Omni Hotel, San Francisco<br />
O’Sullivan’s Cigar <strong>Bar</strong> & Lounge<br />
The Paint Palette<br />
Petco<br />
Pyramid Alehouse and Brewing Company<br />
Rabbit Office Automation<br />
The Recorder<br />
Dianne Reed (masseuse)<br />
Rocco’s Pizza<br />
Safeway, Alamo<br />
Sage Boutique<br />
St. Clement Vineyards<br />
Saylor & Hill Company (insurance)<br />
Scott Valley Bank<br />
Scott’s Seafood<br />
See Spot Stay (<strong>Bar</strong>bara Dwyer)<br />
Sierra Office Supply & Printing<br />
Silkwood Winery<br />
Smith Trim, Inc.<br />
Stanford’s Restaurant, Walnut Creek<br />
Starbucks Coffee<br />
Sundance Vending Machine<br />
Tahoe Joe’s Restaurant, Pleasant Hill<br />
Touchstone Legal<br />
UC Berkeley<br />
The Ultimate Touch (Debbie Gheller)<br />
Union Bank<br />
Vesi Hair Design<br />
The W Hotel, San Francisco<br />
Walnut Creek Yacht Club<br />
Wags & Whiskers<br />
Water World USA<br />
Wealth Management Consultants, Inc.<br />
Wells Fargo Bank<br />
Westlaw<br />
Workspace Resources<br />
Yellow Wood Coffee Shop<br />
Yoga Works (Heather Cole)<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer 13
Question man<br />
What’s the role of immigration<br />
on the U.S. economy<br />
Our economy suffers without<br />
the contributions of the legal<br />
and illegal immigrants who<br />
come here to work hard and<br />
better their lives. For those<br />
immigrants, it is not a question<br />
of entitlements as it is with so many of our<br />
citizens. Anyone who thinks negatively<br />
about the impact of immigrants utilizing<br />
government services to which they are not<br />
entitled, the negative is overwhelmingly<br />
outweighed by the positive.<br />
A. G. Ashe<br />
<strong>Law</strong> Office of Anthony Guy Ashe<br />
I am an immigrant [from Canada]<br />
and I think I spend a lot of money<br />
in the US economy. That aside, I<br />
believe immigrants bring a touchstone<br />
of variety and culture to our<br />
economy and our nation unlike<br />
anything else we do. We are who we are<br />
as a culture and a nation because of immigration.<br />
Every person and every family in<br />
this country derive from immigrants from<br />
elsewhere. So, without immigration, there<br />
would be no economy.<br />
Wayne V.R. Smith<br />
Attorney & Mediator<br />
To supply our economy with the hardest<br />
working, most creative and highly<br />
motivated players from throughout the<br />
world.<br />
Joseph M. Nykodym<br />
Ryan & Lifter<br />
With America’s aging domestic workforce,<br />
we need skilled, educated, hard-working<br />
immigrants to fill our jobs and keep the<br />
economy running. Legal immigration is<br />
not a luxury — it is a necessity and a winwin<br />
arrangement for all. However, an<br />
unfettered influx of illegal immigrants<br />
who impact our welfare system, our<br />
educational system and our health care<br />
system create a drain on our economy.<br />
America, like any other country, has the<br />
right to control its borders. America, more<br />
than any other country, has the ability<br />
to attract the type of hardworking<br />
immigrants looking<br />
to live in a free society that<br />
made our country great.<br />
Ronald Rives<br />
<strong>Law</strong> Offices of Rives & Littorno<br />
To overrun the local organic<br />
economy of native Americans.<br />
Howard Thomas<br />
Mediation & Legal Services<br />
Immigration and the economy are far more<br />
intertwined than most people realize. U.S.<br />
employers continue to rely on undocumented<br />
workers both to save money and<br />
because they are willing to do the work.<br />
At the same time, we also continue to<br />
need skilled workers in order to compete<br />
in the world marketplace. Immigration<br />
reform will have to include ways for<br />
employers to retain workers necessary to<br />
the success of their business and to fill the<br />
less desirable jobs. The sad fact is that few<br />
American citizens care to do the “dirty”<br />
work and not enough are preparing for<br />
the complicated work. There is also the<br />
issue of how much money immigrants<br />
are injecting into the system as compared<br />
to the money they are using<br />
in the form of needed services<br />
that, may in fact, weigh heavily<br />
in favor of the former.<br />
Michael S. Epstein<br />
Lipman & Wolf, LLP<br />
Julie Schumer<br />
Certified Appellate Specialist<br />
Certified by the State <strong>Bar</strong> of California Board of Legal Specialization<br />
Motions, Appeals & Writs<br />
30 years experience<br />
925.254.3650<br />
juliesch@ix.netcom.com • www.bayareaappellatelawyer.com<br />
— Wanted —<br />
Conservatorships<br />
think<br />
Matt Toth<br />
as in<br />
Pedder, Hesseltine,<br />
Walker & Toth, LLP<br />
oldest partnership in <strong>Contra</strong> <strong>Costa</strong> <strong>County</strong><br />
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14 July 2009
The U.S. will be able to recover<br />
faster with its massive and ready<br />
low-cost labor force. This will allow<br />
continued competitiveness in the<br />
global economy, and consumers<br />
will benefit from resulting lower<br />
prices. A sad bonus to our economy is that<br />
many illegal Immigrants pay Medicare,<br />
Social Security and other taxes yet are<br />
ineligible for government benefits.<br />
Michael D. Goforth<br />
Goforth & Lucas <strong>Law</strong> Offices<br />
It would be difficult to understate the<br />
impact immigration has on the U.S.<br />
economy. It is uncontroverted that immigrant<br />
labor has a net positive effect on<br />
the U.S. economy. A recent study by the<br />
Pew Hispanic Center stated that there are<br />
approximately 11.9 million unauthorized<br />
immigrants living in the United States.<br />
Although some argue that illegal immigrants<br />
take jobs from U.S. citizens and<br />
drive wages down overall, one of the<br />
most often-cited researchers on this topic,<br />
Harvard professor George Borjas recently<br />
published research concluding that the<br />
effect on the average wages of our U.S.<br />
workers from all immigrants — documented<br />
and undocumented — is exactly<br />
zero. The wisest thing our governmental<br />
leaders can and should do is to fashion<br />
a plan to allow undocumented immigrants<br />
to become documented, and to<br />
continue to contribute to the economy,<br />
rather than attempting to force millions<br />
back across the borders, all to everyone’s<br />
detriment.<br />
Patrick M. Callahan<br />
Burnham Brown<br />
Well, if you go to any restaurant, casino,<br />
or other public gathering place, you see<br />
Hispanics working for wages that other<br />
ethnic groups would not even<br />
touch — so I guess the<br />
answer to this question is<br />
that we continue to rely on<br />
the present situation.<br />
Mitch Stevens<br />
<strong>Law</strong> Offices of Mitchell A. Stevens<br />
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<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer 15
Local Verdicts Guru<br />
has <strong>International</strong> Roots<br />
by Matt Guichard<br />
My first legal job out of law school<br />
was at the firm of Lars Kristensen, Kyed<br />
& Partners, in Odense, Denmark. It<br />
started as an internship as part of my<br />
studies in Salzburg, Austria, then turned<br />
into an actual job.<br />
The focus of my work at the law firm<br />
was international license agreements. I<br />
certainly had a grand time and learned a<br />
great deal about “international” law.<br />
Because of that experience, I realized that<br />
international law is simply law practiced<br />
across borders. In Europe, my work<br />
involved agreements with clients all over<br />
the map. Just imagine how limited a<br />
practice would be if limited to agreements<br />
in Denmark alone.<br />
After what was to be a brief stint at the<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>County</strong> District Attorney’s<br />
Office (to learn trial work), I was interviewed<br />
by a number of big San Francisco<br />
firms interested in my trial experience. At<br />
one of those interviews, I proudly stated<br />
my European experience and my desire<br />
to get back to practicing international<br />
law. Much to my surprise, I was told at<br />
more than one of those big firms, “We<br />
don’t do that kind of law.”<br />
Those firms did contract law, business<br />
law, banking law, arbitrations, license<br />
agreements, franchise agreements, and<br />
any number of other areas of law. And of<br />
course they did international law — they<br />
just didn’t know it.<br />
In the mid 1990s, while running the<br />
Sacramento office of a Bay Area law firm,<br />
I was chairman of the <strong>International</strong> <strong>Law</strong><br />
Section of the Sacramento <strong>County</strong> <strong>Bar</strong><br />
<strong>Association</strong>. I regularly wrote articles on<br />
international law. I recall quite clearly<br />
stating that the world was a smaller place<br />
and the practice of law would require a<br />
functional understanding of the law and<br />
legal procedure in a number of jurisdictions<br />
other than California. Certainly we<br />
have worked with clients, adversaries and<br />
laws of other states in our country. In fact,<br />
in many product liability matters, out-ofstate<br />
manufacturers are regularly brought<br />
into the California courts, and many of<br />
our state businesses must appear in courts<br />
throughout the United States.<br />
So it is with matters involving international<br />
companies and laws. Foreign<br />
manufacturers bring products into our<br />
state. Foreign companies enter into contracts<br />
with California companies. H1B<br />
visas are required for many companies to<br />
attract talent, and so on.<br />
Our firm, for example, has clients in<br />
China, Taiwan, Canada, Mexico and many<br />
other countries. In order to service those<br />
clients, we must become familiar with the<br />
law of those countries and the laws of the<br />
countries with which they do business. It<br />
helps to have multi-lingual lawyers. But<br />
it is not required that a California lawyer<br />
be fluent in the language of an international<br />
client. I am a member of the <strong>International</strong><br />
<strong>Bar</strong> <strong>Association</strong>, and almost all the experience<br />
I have had with that organization<br />
requires a working knowledge of English.<br />
In fact every international legal conference<br />
I have attended is run in English.<br />
A very big difference in the actual<br />
resolution of legal disputes, between the<br />
states and foreign entities, is the use of<br />
arbitration. Additionally, the jury trial is<br />
unheard of in most matters, even here in<br />
the States. Most contracts between international<br />
clients require arbitration. There<br />
is a very seasoned and sophisticated process<br />
for the arbitration of international<br />
commercial disputes. The United Nations<br />
Conference on <strong>International</strong> Commercial<br />
Arbitration at the 1958 Convention on<br />
the Recognition and Enforcement of<br />
Foreign Arbitral Awards produced a<br />
document that forms the foundation for<br />
arbitration as the vehicle for resolution of<br />
many legal disputes. That document is<br />
readily available, and I will be happy to<br />
e-mail it to any of you.<br />
In June of 2006, I appeared at the CILS<br />
<strong>International</strong> Arbitration and Mediation<br />
Conference in Salzburg, Austria. I presented<br />
a paper entitled, “Enforcement of a Mediated<br />
Settlement Agreement, ‘Pitfalls and Practicalities.’”<br />
That conference brought together<br />
lawyers from all over the world to discuss<br />
issues related to international disputes.<br />
At any rate, I could go on and on<br />
discussing the challenges, the fun and the<br />
satisfaction of practicing international law.<br />
But I won’t in the limited space of this<br />
article. I will, however, close by recommending<br />
that each of you examine your<br />
own legal practice, and perhaps realize<br />
you do practice some form of international<br />
law. And perhaps it is time, if we have the<br />
interest, to form our own <strong>International</strong><br />
<strong>Law</strong> Section to the CCCBA. u<br />
— Matthew P. Guichard is a principal in<br />
Guichard, Teng & Portello, APC. GTP has<br />
a well-rounded blend of attorneys with experience<br />
and expertise in many areas of the law.<br />
In addition to English, attorneys and staff are<br />
fluent in the Spanish, Mandarin, Cantonese<br />
and Taiwanese languages.<br />
16 July 2009
Annual Call for<br />
Board of Directors’ Nominations!<br />
Do you want to be a leader within our legal community, but are unsure<br />
of what it takes to be a Director on the <strong>Contra</strong> <strong>Costa</strong> <strong>County</strong> <strong>Bar</strong><br />
<strong>Association</strong> Board<br />
The Board is looking for candidates who agree to meet the following<br />
expectations:<br />
• To possess (or acquire) a basic understanding of the <strong>Bar</strong> <strong>Association</strong><br />
and its activities<br />
• To commit to the mission and values of the <strong>Association</strong><br />
• To represent the <strong>Association</strong> in a manner consistent with Board<br />
decisions<br />
• To prepare for and regularly attend monthly Board meetings<br />
• To attend additional meetings and bar-sponsored events as needed<br />
• To participate on at least one committee or taskforce<br />
• To participate in the annual Board Orientation and Training<br />
program<br />
Directors are selected for their experiences and personal attributes.<br />
Active participation on a CCCBA committee or section leadership is<br />
a plus.<br />
Nominations Process: To be eligible, nominees must be active attorney<br />
members of the <strong>Association</strong>. For purposes of the <strong>Association</strong>’s annual<br />
election, nominations for Directors shall be made by the Directors’<br />
Nominating Committee at the regular October Board meeting, for<br />
approval by the Board. The Board may accept or reject any or all of the<br />
Committee’s nominations. The Board’s decision on the candidates for<br />
election as Directors may be supplemented by additional nominations<br />
made in writing by any member and seconded by four members of the<br />
<strong>Association</strong>, with the concurrence of the nominee, by September 30.<br />
If you are interested in serving on the 2010 Board of Directors (or to fill<br />
an existing vacancy), please submit your written nomination as outlined<br />
above to:<br />
Lisa Reep, Executive Director<br />
704 Main Street<br />
Martinez, CA 94553<br />
(email: lgreep@cccba.org)<br />
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JUDGE JOHN J. GALLAGHER<br />
JUDGE ISABELLA H. GRANT<br />
JUDGE RONALD GREENBERG<br />
JUDGE INA LEVIN GYEMANT<br />
JUDGE HADDEN ROTH<br />
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PATRICK M. BRODERICK<br />
CLAYTON E. CLEMENT<br />
W. GREGORY ENGEL<br />
HOWARD M. GARFIELD<br />
PERRY D. LITCHFIELD<br />
GARY T. RAGGHIANTI<br />
PAMELA M. SAYAD<br />
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<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer 17
This Call May Be Monitored<br />
by David Briggs<br />
You’RE woRKING IN your oFFICE<br />
one afternoon when you get a call from a<br />
current client, the husband in a divorce case.<br />
The divorce is hotly contested, and both<br />
spouses have been threatened with sanctions<br />
based on their behavior during the case.<br />
Your client tells you he has been<br />
arrested and is being held at the <strong>Contra</strong><br />
<strong>Costa</strong> <strong>County</strong> jail in Martinez. He says<br />
his wife called the police when he went<br />
to her home, and that he is being charged<br />
with spousal battery and terrorist threats.<br />
He says, “I have to tell you what happened;<br />
you won’t believe it.”<br />
What should you do<br />
A. Continue the conversation, because<br />
you need to gather as much information<br />
as possible about this development, as<br />
soon as possible.<br />
B. Terminate the conversation, get in your<br />
car, and drive directly to the Martinez jail.<br />
Interview your client as soon as possible<br />
after arriving at the jail.<br />
C. Advise your client not to talk to anybody<br />
about the case, to make bail, and to arrange<br />
for a consultation with you in your office<br />
after he is released from custody.<br />
As so often happens in the practice of<br />
law, the correct answer is: it depends on<br />
the circumstances. More specifically, it<br />
depends on whether you have previously<br />
sent a letter on your letterhead to Ernesto<br />
Lara, Custody Services Bureau, Main Detention<br />
Facility, 1000 Ward Street, Martinez,<br />
CA 94553, asking that your telephone<br />
number be entered in the jail’s computer<br />
system as an attorney phone number.<br />
What You don’t practice criminal law,<br />
so you have never communicated with<br />
anybody at the jail about anything Then<br />
you should probably not choose option<br />
A, continuing the telephone conversation.<br />
Here is why: All telephone phone calls from<br />
inmates at all <strong>Contra</strong> <strong>Costa</strong> <strong>County</strong> jails are<br />
handled by Global Tel*Link (GTL), a computer<br />
software vendor that has contracts with<br />
detention facilities throughout the United<br />
States. The GTL software automatically records<br />
all inmate telephone calls and allows real time<br />
monitoring of any call. The District Attorney<br />
has unrestricted access to these recordings.<br />
Interpreting Penal Code Section 2600,<br />
Donaldson v. Superior Court (1983) 35 Cal.<br />
3d 24, and its progeny hold that jail<br />
inmates do not have a right to make<br />
private telephone calls.<br />
However, Penal Code §851.5 grants<br />
arrested persons the right to three telephone<br />
calls immediately after being<br />
booked. One or more of these calls can<br />
be made to “an attorney of his or her<br />
choice” [Penal Code §851.5(a)], in which<br />
case, “this telephone call shall not be<br />
monitored, eavesdropped upon, or<br />
recorded.” [Penal Code §851.5(b)(1).]<br />
The <strong>Contra</strong> <strong>Costa</strong> <strong>County</strong> Sheriff and<br />
GTL have recognized the requirements<br />
of this statute by providing that, upon<br />
written request, any attorney may have<br />
one or more telephone numbers excluded<br />
from monitoring and recording. The<br />
Public Defender, Alternate Defender’s<br />
Office, the Criminal Conflict Program of<br />
the <strong>Contra</strong> <strong>Costa</strong> <strong>County</strong> <strong>Bar</strong> <strong>Association</strong>,<br />
and many private criminal defense attorneys<br />
have used this procedure.<br />
Of course, a person who was just arrested<br />
may not want to call the Public Defender<br />
or a private criminal defense attorney. Your<br />
divorce client already has a relationship<br />
with you, and the arrest appears to be<br />
closely related to the divorce case, so he is<br />
making a rational choice in deciding to call<br />
you from the jail. Even an irrational person<br />
with no existing connection to any attorney<br />
is entitled to make calls to “an attorney of<br />
his or her choice.”<br />
In this writer’s opinion, the Sheriff and<br />
GTL routinely violate Penal Code §851.5<br />
by recording phone calls to attorneys from<br />
recently booked inmates. In doing so, they<br />
violate the Federal anti-wiretapping law<br />
[18 United States Code §2511], the right<br />
to counsel under the Sixth Amendment,<br />
and tortiously invade the attorney-client<br />
privilege.<br />
However, you are not interested in<br />
filing a class action lawsuit on behalf of<br />
all attorneys who have been — or who<br />
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18 July 2009
might someday be — the recipient of a<br />
phone call from an inmate, or on behalf<br />
of the inmates who make these calls. You<br />
just want to help your divorce client.<br />
It is almost never a good idea to allow<br />
your client to make incriminating statements<br />
that are not protected by the<br />
attorney-client privilege. If you have not<br />
taken the steps to prevent recording of<br />
your telephone conversation with your<br />
recently arrested client, you should assume<br />
it is being recorded and that the attorneyclient<br />
privilege does not apply. In fact,<br />
if you listen carefully to the recorded<br />
message at the beginning of the call, you<br />
will hear an advisement that “this call<br />
may be monitored or recorded.”<br />
By continuing a telephone call after<br />
hearing this advisement, you and your<br />
client impliedly consent to the call being<br />
monitored or recorded [People v. Windham<br />
(2006) 145 Cal.App.4th 881, 887]. Your<br />
client’s consent operates as a waiver of the<br />
attorney-client privilege [Evidence Code<br />
section 952].<br />
In this case, you should probably<br />
terminate your telephone call with your<br />
client. You will then have to decide whether<br />
to drive to Martinez for an emergency<br />
consultation. Be aware that this conversation<br />
will likely be held in a “non-contact”<br />
visiting room, with little or no soundproofing<br />
to prevent your client’s statements<br />
from being overheard by jail personnel, or<br />
your own statements from being overheard<br />
by people in the jail lobby. More private,<br />
“contact” visits require the inmate to have<br />
been assigned to a jail module, which takes<br />
several hours at least.<br />
If your client can make bail, his best<br />
opportunity for a full and frank discussion<br />
of the circumstances of his arrest will be<br />
in the comfort of your own office, after<br />
your client has a good night’s sleep in his<br />
own bed. u<br />
— David Briggs is the<br />
Director of the Criminal<br />
Conflict Program in Martinez.<br />
He can be reached at<br />
attorneybriggs@sbcglobal.<br />
net or 925.229.4410.<br />
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<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer 19
ethics corner<br />
by Carol M. Langford<br />
While sitting in the office the other day,<br />
I was wondering whether there has been<br />
an increase in legal malpractice complaints<br />
and/or disciplinary matters since the<br />
economy has soured. So, I asked some<br />
colleagues across the United States if the<br />
slowing economy has resulted in more<br />
cases, and if so, whether they see any<br />
trends in their cases that they can pass on<br />
to my <strong>Contra</strong> <strong>Costa</strong> readers. In taking<br />
stock of my own case files to see if I could<br />
discern any red flags, the following is what<br />
was discovered.<br />
First, clients are wrangling over fees<br />
more than they have in many years. They<br />
are demanding fee refunds, even for work<br />
done well. Worse yet, a client may add a<br />
threat to file a complaint with the State<br />
<strong>Bar</strong> to gain leverage over the lawyer. The<br />
lawyer knows that s/he can’t do anything<br />
that would smack of limiting the client’s<br />
right to file a <strong>Bar</strong> complaint and s/he<br />
would rather pay the client some money<br />
rather than go through the State <strong>Bar</strong><br />
process. It’s no surprise that clients who<br />
do this are often out of jobs, broke and<br />
just smart enough to put the fee demand<br />
in writing.<br />
Second, I am also getting an increased<br />
amount of legal malpractice calls. Usually<br />
clients indicate that their lawyer mishandled<br />
the case in one form or another.<br />
However, when pressed as to damages,<br />
they usually cannot come up with a claim<br />
over $100,000. A contingency fee on that<br />
amount is not usually enough of an incentive<br />
for the legal malpractice lawyer to take<br />
the case. Here is why: take the best case<br />
scenario — in this case, $100,000 — and<br />
divide it in half since you rarely get the<br />
“best case.” Then count on having to litigate<br />
it for a year and then go to trial. Add into<br />
that the inevitable statute of limitations<br />
defenses, the proximate cause and damage<br />
problems, and your knowledge that the<br />
client will never, ever feel compensated<br />
for all of his / her misery. As you can see,<br />
that takes out the via bility of representation<br />
in many legal malpractice cases.<br />
Third, clients are seeking fee refunds<br />
and/or threatening a legal malpractice<br />
case in matters in which the lawyer did<br />
not win the case, regardless of the reason.<br />
We all know that a loss is not necessarily<br />
an indication of any malfeasance; someone’s<br />
got to lose a trial. But nowadays<br />
clients are looking for a buck wherever<br />
they can find one.<br />
Last, there’s an increase in lawyers<br />
who are lending clients living expenses<br />
to get them through a rough economy.<br />
Rule 4-210 governs such lending and<br />
allows lending if: 1) the loan for personal<br />
or business expenses is to be paid back<br />
out of funds collected at the end of the<br />
liti gation; 2) after employment, from<br />
lending money to the client upon the<br />
client’s written promise to repay; or 3)<br />
from advancing costs of prosecuting or<br />
defending a claim or otherwise promoting<br />
the client’s interests, the repayment<br />
of which may be contingent on the outcome<br />
of the matter. The costs under<br />
paragraph three must be limited to all<br />
reasonable expenses of litigation or preparing<br />
for litigation. <strong>Law</strong>yers usually get<br />
in trouble if they charge usurious lending<br />
rates, pay for getting the case, or engage<br />
in other shenanigans not contemplated<br />
by the rule.<br />
Make sure that you have a writing for<br />
all conversations about fees, the status of a<br />
client’s case and their chances of recovery.<br />
Even in cases taken on a contingency have<br />
billing records that record time by the<br />
hour. That way, when the client demands<br />
a refund, you can show them the time you<br />
spent on their matter. Sometimes clients<br />
are just unclear on what you actually did.<br />
And remember the beauty of fee arbitration<br />
with your local bar or the State <strong>Bar</strong>.<br />
Fee arbitration is cheap, effective, and<br />
there are no damages awarded for legal<br />
malpractice. u<br />
— Carol M. Langford is a practicing lawyer<br />
in Walnut Creek. She specializes in State <strong>Bar</strong><br />
defense work, and provides advice and representation<br />
in legal malpractice, attorney conduct<br />
and other matters.<br />
Please send your ethics questions to:<br />
Carol Langford<br />
100 Pringle Avenue, Suite 570<br />
Walnut Creek CA 94596<br />
langford@usfca.edu<br />
(If your question is answered in a future column,<br />
your name/firm name will be omitted.)<br />
20 July 2009
new members<br />
Mark V. Murphy<br />
L. Robin Chang<br />
Archer Norris<br />
925.930-6600<br />
Monika L. Cooper<br />
Office of the <strong>County</strong> Counsel<br />
925.335-1885<br />
Chip Cox<br />
Greenan, Peffer, Sallander & Lally<br />
925.866-1000<br />
Mary E. Gannon-McMurry<br />
1160 Blue Spur Circle<br />
925.736-2414<br />
Lubna K. Jahangiri<br />
<strong>Law</strong> Offices of Lubna K. Jahangiri<br />
925.359-3233<br />
Paul B. Justi<br />
<strong>Law</strong> Offices of Paul B. Justi<br />
925.256-7900<br />
Cassandra C. Massey<br />
<strong>Law</strong> Offices of Peter G. Loewenstein<br />
925.256-3300<br />
Michelle Regalia McGrath<br />
U.S. Postal Services, <strong>Law</strong> Department<br />
415.775-5216<br />
Mary Nawabi<br />
J. Rockcliff Realtors, Inc.<br />
925.408-7647<br />
Shelley C. Nelson<br />
McDowell & Shaw<br />
925.210-1300<br />
Anthony D. Prince<br />
<strong>Law</strong> Office of Anthony D. Prince<br />
510.845-5475<br />
Cheryl A. Smith<br />
<strong>Law</strong> Office of Cheryl A. Smith<br />
510.537-5990<br />
Personal Injury<br />
Referrals Requested<br />
Over 25 years experience<br />
representing injury victims.<br />
Practice dedicated solely to<br />
Personal Injury.<br />
Each client given prompt,<br />
courteous attention.<br />
Antioch and<br />
San Ramon Offices<br />
925.552.9900<br />
Jenny M. Kim<br />
Watson, Hoffe & Hass<br />
510.237-3700<br />
Grace Lee<br />
Archer Norris<br />
925.930-6600<br />
Cecilia G. Mason<br />
Ca. Licensed Professional Fiduciary<br />
925.309-4066<br />
Kime H. Smith<br />
Archer Norris<br />
925.930-6600<br />
Lewis J. Soffer<br />
Miller Starr Regalia<br />
925.935-9400<br />
Chelsey T. Westfall<br />
Bowles & Verna, LLP<br />
925.935-3300<br />
Attorney Counseling Evenings<br />
The CCCBA offers ACE Nights in various subject matters, such as family, landlord/tenant<br />
and immigration law. The programs are only two hours in length.<br />
They have been an invaluable service to the community — and the feedback<br />
received has been fantastic!<br />
If you’re interested in volunteering for an upcoming ACE Night, contact CCCBA’s<br />
Michele Vasta at 925.370-2548 or mvasta@cccba.org.<br />
Glenn & Dawson LLP<br />
Certified Public Accountants<br />
Donald A. Glenn CPA, ABV, CVA, CFE<br />
Leslie O. Dawson CPA, ABV, CVA<br />
Specializing in<br />
Litigation Support – family law<br />
Business Valuations<br />
Probate and Estates<br />
Financial Investigations<br />
Audit Tax and Accounting Services<br />
for individuals and<br />
privately owned companies.<br />
323 Lennon Lane, First Floor<br />
Walnut Creek, CA 94598<br />
Telephone (925) 945-7722<br />
Facsimile (925) 932-1491<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer 21
advertisers’ index<br />
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Walnut Creek Window Office<br />
Lease a fully furnished window office<br />
w/sec station and tons of amenities. On-site<br />
conf rooms, receptionist service, law library,<br />
telephone system, voice mail, notary (onsite),<br />
copy machines, postage machines,<br />
and mail-handling. Professional Class A<br />
bldg. w/plenty of parking, great location,<br />
and easy access to freeway and BART. Call<br />
Kristie, 925.947-0100, x224.<br />
Lafayette Transit Village Office Space<br />
Office and paralegal station in business<br />
law firm next to BART in Lafayette (27<br />
min. to Montgomery Street BART station).<br />
Receptionist, conf. room, parking, ground<br />
floor, only one block from post office and<br />
Lafayette’s restaurant row. Call Jim or<br />
Michelle at 925.284-4447.<br />
961 Ygnacio Valley Road, Walnut Creek<br />
Share building with 7 solos. One office<br />
available. All amenities. 925.938-2460.<br />
2 Conference rooms for rent<br />
Located near the courthouse in downtown<br />
Martinez (CCCBA office). Standard<br />
room (seats 10-12) $150 all day/$75 half<br />
day; Mobile room: (full - seats up to 30) $200<br />
all day/$100 half day; (subdivided - seats<br />
up to 10) $75 all day; $40 half day; both<br />
rooms $250 all day/$150 half day. $20<br />
hourly rate. Call Manny, 925.370-2549.<br />
Window Office – Walnut Creek<br />
Treat Blvd near BART. Conf room, fax,<br />
copier, good freeway access. Parking. What<br />
a deal – only $450/mo. 925.939-2544.<br />
Bishop Ranch Office Space<br />
Financial planning firm has 2 offices<br />
avail within suite. Rents $800 to $1000/<br />
mo., shared conf. rm, recep area, kitchen.<br />
Great location! Call 925.866.1246.<br />
professional announcements<br />
Probate paralegal to attorneys<br />
Joanne C. McCarthy. 2204 Concord Blvd.<br />
Concord, CA 94520. Call 925.689-9244.<br />
Private Investigator<br />
Bob Bailie Investigations can help to<br />
find that witness and confirm facts. Over<br />
30 years of experience. Call 925.934-4904<br />
or email bailiepi@aol.com for a seasoned<br />
professional. Lic. #2328. Get it done right!<br />
To place a display or classified ad,<br />
call Young Design & Production at<br />
925.229-2929 or email young-design<br />
@prodigy.net. Display ads start as<br />
low as $80 per month while classifieds<br />
run as little as $36 per ad.<br />
Youngman, Ericsson & Low, LLP<br />
1981 North Broadway • Suite 300<br />
Walnut Creek, CA 94596<br />
Tax <strong>Law</strong>yers.<br />
(925) 930-6000<br />
22 July 2009
Will & Trust Litigation<br />
Elder Abuse Litigation • Conservatorships<br />
B A R R & B A R R<br />
A T T O R N E Y S<br />
101 Gregory Lane, Suite 42 • Pleasant Hill, CA 94523-4915 • (925) 689-9944<br />
Edward E. <strong>Bar</strong>r<br />
Christopher M. Moore<br />
Loren L. <strong>Bar</strong>r*<br />
John Milgate, Of Counsel<br />
Joseph M. Morrill<br />
Tracey McDonald, Paralegal<br />
*Certified Specialist, Estate Planning, Trust and Probate <strong>Law</strong>, The State <strong>Bar</strong> of California Board of Legal Specialization<br />
<strong>Contra</strong> <strong>Costa</strong> <strong>Law</strong>yer 23