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News for, and by, our local legal community, curated and created by the Santa Clara County Bar. The opinions expressed in this blog are the authors' own and do not necessarily represent or reflect the views of the Santa Clara County Bar Association, its members, its employees, or its governing board.

 

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The Cloud Conundrum: Explaining Divergent Google, Microsoft Search Warrant Rulings

Posted By Administration, Thursday, February 16, 2017

One of the clearest indications that technology is far outpacing the law came on Feb. 3, when Google Inc.’s motion to quash federal search warrants for user email data the company stored overseas was rejected by the U.S. District Court for the Eastern District of Pennsylvania.

Just a few months prior on Sep. 5, 2016, the U.S. Court of Appeals for the Second Circuit ruled that search warrants under Section 2703 of the Stored Communications Act (SCA)—the same warrants served to Google—could not compel Microsoft to disclose its user email data stored in Ireland.

The Second Circuit’s decision, cited by Google in its own motion, was not without contention. On Jan. 24, the court denied a request for a rehearing in a deadlocked 4-4 vote.

But while the divergent rulings mean courts are far from any definitive guidance on what rights the U.S. government has to request and access corporate data stored overseas, they do provide counsel with some direction on how to minimize risk of such seizures, as well as highlight the specific legal complexities at play when considering such requests.

Read the whole story at National Law Journal

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HP, Mandating Diversity, Will Withhold Fees From Some Firms

Posted By Administration, Wednesday, February 15, 2017

In-house legal departments regularly encourage, and in some cases requirethat outside firms have some level of diversity in staffing legal work. HP Inc. has taken this mandate a step further—saying the company will withhold invoiced fees from firms that do not meet diversity requirements. 

Kim Rivera, HP’s chief legal officer and general counsel, announced the Palo Alto-based company’s policy in a letter to partner law firms on Feb. 8. HP implemented its directive, Rivera wrote, to “emphasize the business imperative to make meaningful strides in diversity” at partner firms.

“With this we can withhold up to 10% of all amounts invoiced by law firms that do not meet or exceed our minimal diverse staffing requirements,” Rivera, HP’s general counsel since November 2015, wrote.

Read the whole story at National Law Journal

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Become an SCCBA Delegate

Posted By Administration, Thursday, February 9, 2017

BECOME AN SCCBA DELEGATE – UPCOMING ORGANIZATIONAL MEETING ON FEBRUARY 16, 2017

    The Santa Clara County Bar Association is organizing its delegation to the 2017 Conference of California Bar Associations [otherwise known as the Conference of Delegates (website: www.calconference.org ] which will be held this year in Sacramento October 6 through 8 (Friday afternoon through Sunday mid-day).  The Conference of Delegates is an annual meeting of delegations from local and specialty bar associations intended to help refine and improve California laws, including laws dealing with family, corporate, real estate, criminal, labor and probate matters, civil procedure, courts and attorneys.  Proposed changes are debated, and changes approved by the Conference are submitted to the legislature and lobbied by the Conference's lobbyist.  The resolutions of SCCBA delegates have been enacted into law in the recent past.
 
      We expect to have between 10 and 15 delegates this year. Historically, including in 2016, SCCBA’s delegation has been an active, influential group during the Conference’s deliberations.  Joining the delegation is a great way to serve the profession and the people of California while expanding your legal knowledge and getting to know other attorneys from Santa Clara County and other parts of California.
 
     Our delegation’s work is multi-phased, involving approximately 3-4 meetings during the year prior to the Conference.  Among our activities are preparation of our own resolutions, and review of and response to other delegations’ resolutions.  We plan to have meetings in February, April/May and September.
 
        There are no specific pre-requisites for becoming a delegate. If you wish to join the SCCBA delegation, please contact Shiv Shastri (ph.: (650)428-1768; email: shivadevshastri@att.net; or Tiffany Taubodo at the Bar Offices [e-mail: tiffanyt@sccba.com).
 
     Our first meeting of the year will occur at the Bar Offices on February 16, 2017, at noon.  Lunch will not be provided.  We look forward to seeing all interested Bar Association members at that meeting.
 
Shiv Shastri
2017 Conference of Delegates Chair

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February 1 Digest

Posted By Administration, Wednesday, February 1, 2017

Gorsuch Is the 'Instant-Replay Official' to Roberts the Baseball Umpire

During his 2005 confirmation hearing, Chief Justice John Roberts Jr. famously likened his role to that of a baseball umpire, testifying that “it's my job to call balls and strikes and not to pitch or bat.”

The sports analogy served as a charming, accessible—and widely reported—window into Roberts’ judicial philosophy. Five years later, Judge Neil Gorsuch—now President Donald Trump’s nominee for the U.S. Supreme Court—deployed a different sports analogy to explain why he was upholding a federal labor board’s decision.

Gorsuch, Drawing Scalia Comparisons, Comes Under Microscope

The U.S. Supreme Court nomination of Judge Neil Gorsuch triggered a range of responses across the legal and political spectrum Tuesday night as lawyers and advocacy groups touted—and criticized—his positions on regulatory matters and civil rights.

In naming Gorsuch, who sits on the U.S. Court of Appeals for the Tenth Circuit, President Donald Trump said he was fulfilling a promise to choose someone “who respects our laws and interprets them as written” in the mold of the late Justice Antonin Scalia.

Ruth Bader Ginsburg Visits Military Institute Whose Doors She Opened to Women

More than two decades after her majority decision opened the all-male bastion of the Virginia Military Institute to women, U.S. Supreme Court Justice Ruth Bader Ginsburg on Wednesday told a packed hall of the school’s cadets that she knew her ruling “would make VMI a better place.”

Ginsburg’s visit came less than 24 hours after President Donald Trump named Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit to fill the vacancy created by the death of Ginsburg’s close friend, Justice Antonin Scalia.

Gorsuch, in First Ruling, Wouldn't Cut a Break for an Undocumented Immigrant

In his first ruling as a federal appeals judge, Neil Gorsuch weighed the merits of a nearly five-year prison sentence imposed on an undocumented immigrant who’d once been deported.

The immigrant argued the sentence was unreasonably harsh, that similarly-situated defendants had received lighter treatment from other courts. But Gorsuch, just two months into his tenure on the U.S. Court of Appeals for the Tenth Circuit, wasn’t swayed.

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January 31 Digest

Posted By Administration, Tuesday, January 31, 2017

SF Sues Trump to Block Order Aimed at 'Sanctuary' Cities

SAN FRANCISCO—The city of San Francisco has sued to block an executive order issued by President Donald Trump last week that would withhold more than $1 billion in federal funding from the city due to its "sanctuary city" policies.

President Trump signed an executive order on Jan. 25 directing federal officials to identify funds that could be withheld from sanctuary cities, a term describing about 300 communities that refuse to cooperate with federal immigration officials in aiding deportation.

On the Bright Side, Lawyers Are Suddenly Popular

If there’s any silver lining to the first 11 days of the Trump administration, it’s this: lawyers are suddenly beloved—at least by the masses who oppose the president’s policies.

It’s impossible to be a member of the bar and not know Shakespeare’s quote from Henry VI: “The first thing we do, let's kill all the lawyers.” Or the endless jokes: How can you tell when a lawyer is lying? His lips move. Why did God invent lawyers? So that real estate agents would have someone to look down on. What's the difference between a jellyfish and a lawyer? One's a spineless, poisonous blob. The other is a form of sea life.

Trump's AG Pick Once Told Yates to 'Say No' to Improper Demands

Attorneys reacted Monday night to the removal of acting Attorney General Sally Yates, arguing on Twitter and news programs about whether the events could be compared to the Nixon Era Saturday Night Massacre.

A few pointed out that Yates had answered questions during her 2015 confirmation hearing that seemed to herald her dramatic departure—and that it was Donald Trump’s attorney general nominee, Sen. Jeff Sessions doing the asking.

Xavier Becerra's First 100 Days—4 Things to Watch

SACRAMENTO—After a whirlwind nomination and confirmation process, Xavier Becerra was sworn in Tuesday as California’s 33rd attorney general.

The first Latino to hold the position as California’s top prosecutor told reporters to “fasten your seat belts” because “I just got the keys to the car. So get ready.”

California Considers Options to Meet Marijuana Deadline

SACRAMENTO—State officials will likely need to rely on emergency rules, provisional licenses and grace periods to ensure California’s recreational marijuana market is up and running by Jan. 1, 2018, the state’s lead pot regulator said Monday.

Lori Ajax, chief of the Bureau of Medical Cannabis Regulation, told a state Senate committee that “there are a lot of challenges” to drafting rules for what could be a $6 billion recreational industry.

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January 25 Digest

Posted By Administration, Wednesday, January 25, 2017

Sotomayor Joins High Court Chorus of Confirmation Criticism

"Vexing." "Broken." "Not functioning very well."

Welcome to the U.S. Supreme Court confirmation process, in the eyes of sitting justices.

As President Donald Trump prepares next week to announce his Supreme Court pick, the oft-criticized Senate confirmation proceedings will move into the public eye. The justices have had little good to say about the experience.

Showdown Over Law Schools' Bar Pass Standard Set for Feb. 6

The American Bar Association is pushing forward with a bid to strengthen its bar passage requirement for law schools over fresh objections from nearly half the nation's law deans.

The proposal to require at least 75 percent of a school's graduates to pass the bar within two years will be considered by the ABA's House of Delegates at its midyear meeting Feb. 6 — a move the objecting deans had hoped to delay in light of the continued decline in California's bar passage rate.

Three Things to Know About Neil Gorsuch, SCOTUS Front-Runner


Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit has moved to the front of the pack among possible nominees to the Supreme Court, according to several news reports Tuesday. But he is not a household name—yet.

The pace of the nomination process appears to be picking up, with President Donald Trump set to meet Tuesday afternoon with Senate Majority Leader Mitch McConnell, Senate Minority Leader Chuck Schumer and leading senators on the Judiciary Committee, which would hold confirmation hearings on his nominee.

Suit claims arrests over social media posts and rap lyrics violated First Amendment rights

Two men arrested and detained by San Diego police because of rap lyrics and social media posts have filed a federal lawsuit for alleged violation of their First and Fourth Amendment rights.

One of the plaintiffs in the Jan. 10 lawsuit (PDF) is rapper Brandon Duncan, known as Tiny Doo, according to a press release. The other is Aaron Harvey, who was studying to become a real-estate agent at the time of his arrest. Duncan and Harvey are represented on a pro bono basis by lawyers at Morrison & Foerster.


Public officials can't evade public records laws through personal email accounts

Although Hillary Clinton was the focus of the email-related brouhaha last year, similar controversies have been playing out in local governments across the country as other public employees use private email accounts to circumvent “sunshine laws” that mandate open meetings.

This questionable use of email to discuss government business comes as freedom of information advocates stress the continued need for transparency and accountability in government, as well as vigilant application of open records and open meetings laws. As federal appeals court Judge Damon Keith famously wrote in 2002: “Democracies die behind closed doors.”

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January 19 Digest

Posted By Administration, Thursday, January 19, 2017

Nonlawyer Judges? SCOTUS Doesn't Seem to Mind

A judge who is in a position to throw someone in jail has to be a lawyer, right? Well no, and the U.S. Supreme Court on Tuesday allowed this anomaly of American justice to persist.

Without comment, the court declined to review the case of Davis v. Montana, brought by two Montanans who were found guilty by juries of driving under the influence, and sentenced to prison by a judge who was not a lawyer. The judge, elected Justice of the Peace Linda Budeski, did have experience working in a chemical dependency program and a grocery store.

In 'Slants' Case, Justices Skeptical of Ban on Disparaging Trademarks

American rock band The Slants will get what it has wanted for years: a registered trademark—or as Justice Stephen Breyer put it, "a little circle with an R in it."

During oral argument in the high-profile case Wednesday, Breyer and most other U.S. Supreme Court justices appeared sympathetic to the band in its battle against the U.S. Patent and Trademark Office. The office in 2011 refused to register "The Slants" because of a section of the Lanham Act that prohibits "disparaging" trademarks.

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January 10 Digest

Posted By Administration, Tuesday, January 10, 2017

Wells Fargo Reaches $35M Racial-Bias Settlement With Advisors

A $35.5 million settlement between Wells Fargo & Co. and a group of African-American brokers is set to go before a Chicago federal judge on Jan. 24.

The plaintiffs alleged in the complaint, filed in 2013 in the U.S. District Court for the Northern District of Illinois, that Wells Fargo “substantially” underpaid African-American financial advisors in management and executive positions.

Judge Skirts DTSA, but Orders Evidence Preserved

A San Jose federal judge has ordered a freeze on the personal email of two executives accused of misappropriating trade secrets, while instructing one to turn over a company-owned laptop and mobile phone to the court.

U.S. District Judge Edward Davila's Jan. 6 order stops short of invoking the seizure power of the new Defend Trade Secrets Act, but gives Moscow-based OOO Brunswick Rail Management most of what it wants through traditional remedies.

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January 9 Digest

Posted By Administration, Monday, January 9, 2017

SEC Makes Exception to 'In Writing' Requirement for Whistleblower Tips

From the earliest days of its whistle blower program, the U.S. Securities and Exchange Commission made clear that a phone call is not enough.

In its first set of rules for the program, created by the 2010 Dodd-Frank reform laws, the SEC said tips must be faxed, filed through the agency’s website or mailed to be eligible for an award. Those rules took effect in August 2011. In that interim year, between when the law was passed and when the SEC implemented new rules, tipsters were only required to provide information “in writing.”

How Big a Deal Are Four 9th Circuit Vacancies That Await Trump?

SAN FRANCISCO — When President-elect Donald Trump takes office later this month, he'll be greeted by four vacancies at the U.S. Court of Appeals for the Ninth Circuit—the nation's largest circuit court and, by reputation, one of its most liberal.

The prospect of four Republican appointees joining the court prompted the conservative news site breitbart.com to proclaim in a recent headline: "Liberals Panic as Trump Could Flip Left-Leaning Ninth Circuit."

 

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New ethics opinion for attorneys who blog

Posted By Administration, Friday, January 6, 2017

A new ethics opinion on blogging gives guidance to attorneys who post for fun or for profit, ensuring that they don’t violate the rules regulating attorney advertising.

Not all lawyer blogs are subject to the ethical rules, but those that offer to provide legal services, even implicitly, may be considered advertising, according to Formal Opinion No. 2016-196 (re Attorney Blogging) by the State Bar’s Standing Committee on Professional Responsibility and Conduct.

The opinion was approved last month by the Board of Trustees.

The opinion has gone through two rounds of public comment since 2015. Although the conclusion remained the same, the final opinion addresses the First Amendment free speech concerns of blogging.

Read the whole story at California Bar Journal

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more Calendar

2/23/2017
Love in the Workplace: When Romance Goes Wrong

3/14/2017
*Family Law Brown Bag Spring Series: Settlement vs. Litigation

3/16/2017
Meet and Greet the Family Law Bench for 2017

Recent Recognitions
Mariel BlockBarrister of the Year 2016
Hon. Erica R. Yew2016 Jurist of the Year

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