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President Steven B. Haley

 

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Reflections On A Year As SCCBA President: A Humbling And Positive Experience

Posted By Steven B. Haley, Thursday, December 5, 2013
Updated: Tuesday, May 13, 2014

One of the benefits of being President of the SCCBA is that it has afforded me a unique opportunity to be more deeply involved in the breadth and scope our local legal community.

Throughout this year, I have been impressed by the willingness of the attorneys and judges in our local legal community to participate in the many SCCBA initiatives and programs.  On countless occasions this year I have contacted attorneys and judicial officers, seeking their involvement in various projects and programs. Invariably, they were willing to share their knowledge and insights, and to provide their assistance and time.

As this year progressed, I came to the realization that being President of the SCCBA is both a humbling and a positive experience. My experience as President has provided me with a deeper appreciation for the professionalism of our members, and for the leadership role that they play in our local legal community and in the communities in which we live. I am grateful to have had the opportunity for this experience.

The 2013 Board of Trustees met frequently throughout the year to discuss issues of common interest and concern to our legal community.   One of the major initiatives of the 2013 Board of Trustees was to engage in a concerted effort to improve the communication between the Board and Chairs of the Association’s committees and sections.  Throughout the year, individual Trustees attended various meetings of the committee and section executive committees, in order to gain a clearer understanding of the challenges and the efforts of the various committees and sections in planning the many CLE programs that the SCCBA offers throughout the year.

In addition, Chairs of the committees and sections attended Board of Trustees meetings in order to update the entire Board on the activities of their respective committees and sections.  This process increased the recognition of the leadership role that the Chair group plays in our legal community, improved the interaction between the Board and the Chair group, and improved the awareness and appreciation that members of the Board and members of the Chair group have for their respective roles and efforts.

The 2013 Board of Trustees also adopted the new SCCBA Judicial Assessment Policy and Procedures.  The Policy will provide a method for meaningful feedback and communication between the Bench and the Bar on matters of mutual interest and concern, and is designed to nurture and sustain the longstanding tradition of the close Bench-Bar relationship that we enjoy in Santa Clara County.

I would like to express my gratitude for the time and dedication of the many members who play a leadership role in our legal community.  The 2013 Executive Committee was comprised of:  Dianne Sweeney, president-elect; Matt Poppe, secretary; Sylvia Perez-MacDonald, Treasurer; Ram Fletcher; Gabriel Gregg; Kevin Hammon; Nicole Isger; and J. Carlos Orellana.  The Executive Committee was instrumental in framing the issues and initiatives that the SCCBA pursued this year.   I valued and greatly appreciated their insights, guidance and contributions throughout the year.

Thank you also to Clark Stone, Stephen Wu, Josh Gilliland, John Steele, John Mlnarik, Matt Rudy, Diane Sweeney, Jordan Becker, Jill Fox, Elena Rivkin-Franz and Chris Burdick for their contributions throughout this year as members of the President’s Project Steering Committee.

I would also like to say ‘thank you’ to Chris Burdick and to the SCCBA staff: Angie Loyola; Irene Cortez; Tiffany Taubado; Alisa D’Angelo; Dolores Hernandez; Veronica Checa; Sara Brylowski and Craig Melton.  They are each a pleasure to work with.  They have brought great  dedication to facilitating and enhancing this year’s SCCBA programs and events for the benefit of our membership.  I have so enjoyed working with them this year.

I would like to recognize and express my gratitude to Michael Groom and Tom Cave and the members of my firm, Groom & Cave LLP, for their support for my efforts this year.  I am deeply appreciative of the opportunity to practice law with attorneys of their caliber and integrity.

The 2014 officers for the SCCBA will be: Dianne Sweeney, President; John Mlnarik, President-Elect; Nicole Isger, Secretary; and Matt Poppe, Treasurer.  I wish each of them and the entire 2014 Board of Trustees great success for next year.

As a final thought, the enduring lesson from my experience as 2013 President is that the strength and vitality of our legal community is directly related to the willing participation of our members to work on programs and initiatives that benefit our entire community. Active involvement in our legal community provides each of us with an opportunity to develop and expand our leadership role in our profession, beyond what is normally available through our practices.  More than that, active involvement in our legal community can increase our appreciation for the privilege and responsibilities associated with being a member of our honorable profession.

I wish each of you and your families Happy Holidays and a Happy New Year.

 

Steven B. Haley
Groom & Cave, LLP

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A New Way for Attorneys to Provide Feedback to the Judiciary

Posted By Administration, Tuesday, November 12, 2013
Updated: Tuesday, May 13, 2014

by Steven B. Haley, Esq., Groom & Cave, LLP
2013 SCCBA President

The Santa Clara County Bar Association 2013 Board of Trustees (“BOT”) has adopted a new Judicial Assessment Policy & Procedures (“Policy”).

BACKGROUND

The 2012 SCCBA BOT determined that the former survey was no longer serving its initial purpose of providing meaningful feedback to judicial officers regarding the view of the attorneys appearing in their court, and of providing an effective means for the public evaluation of the judicial officers, and decided to discontinue the survey. The 2012 BOT directed the SCCBA President to appoint an Ad Hoc Committee formed for the purpose of developing recommendations for the adoption of alternate means for the members of the Bar to provide feedback to the judiciary regarding the performance of the judiciary and/or individual judges.

2013 AD HOC COMMITTEE

As 2013 President, I appointed an Ad Hoc Judicial Evaluation Committee (“Committee”), chaired by Immediate Past President Mindy Morton with members of the SCCBA and the bench, including Presiding Judge Brian Walsh, Judge James Towery, Judge Tom Kuhnle, Kevin Hammon, Nicole Isger, John Mlnarik, Carlos Orellana, Dianne Sweeney and me, and staffed by SCCBA CEO & General Counsel, Chris Burdick. The Committee was charged with providing: 1) a meaningful assessment mechanism for attorneys in a useful format; and 2) a confidential and widely available method of delivering attorney concerns to the Judiciary that does not interfere with the first goal.

The Committee met throughout 2013, and submitted a proposed policy to the SCCBA Executive Committee.  The Executive Committee approved the draft policy at its September 11, 2013 meeting, subject to certain amendments.  The 2013 BOT adopted the amended proposed Policy at its September 26, 2013 meeting.  The critical elements of the policy are outlined below.

 JUDICIAL ASSESSMENT COMMITTEE

The Judicial Assessment Committee (“JAC”) shall be chaired by the current SCCBA President.  The Committee shall be comprised of:  the current SCCBA President; the Presiding Judge of the Superior Court; the Assistant Presiding Judge or another Judicial Officer appointed at the discretion of the Presiding Judge; the SCCBA’s Chief Executive Officer; and four attorney members to be appointed by the SCCBA President in consultation with the Presiding Judge.

The appointed attorney members of the JAC shall serve staggered two year terms; i.e., two appointed positions to expire in even-numbered years; and two appointed positions to expire in odd-numbered years.  Two attorneys appointed to the initial JAC shall serve a one-year term only, and two shall serve a two year term.    The Procedures set forth additional requirements to be considered in connection with the attorney appointments.

JUDICIAL ASSESSMENT POLL

The Policy provides that an annual Judiciary Assessment Poll (“Poll”) shall be conducted for the purpose of providing general attorney feedback to the bench regarding the overall performance of the Judiciary in Santa Clara County, both state and federal. The Poll shall consist of five to seven questions relating the attorneys’ court experience. The Poll shall be disseminated electronically, with results tabulated electronically. Poll responders shall be anonymous.

The results of the Poll will be provided to the Clerk of the Federal Court for dissemination to the federal district, magistrate and bankruptcy judges.  The Poll results shall also be disseminated to the Presiding Judge of the Superior Court for dissemination to the superior court judges, and shall be made publicly available on the SCCBA’s website.

The Poll is neither designed nor expected to provide a statistically significant reflection of the opinions of Santa Clara County attorneys as to the judiciary. The Poll results shall not be construed or deemed to reflect the opinion of the SCCBA as an entity.

The Poll questions will not be designed in such a way as to solicit responses related to any individual judge. In the event that an attorney desires to provide a comment regarding a particular judicial officer, the attorney will be directed to submit a Judicial Assessment Form, as described below.

CONFIDENTIAL PROTOCOL FOR CONCERNS ABOUT JUDICIAL OFFICERS

In addition to the Poll, the Policy provides an opportunity and a protocol for attorneys to voice concerns and/or positive feedback related to an individual judge.

A Judicial Assessment Form (“Form”) shall be made available to attorneys to provide them with a confidential means of submitting to the JAC their feedback regarding an individual judge. The Form will only be available to attorneys practicing in Santa Clara County, but is not limited to attorney members of the SCCBA. In order to submit the Form, attorneys must provide their names, contact information, and State Bar numbers. Information provided on the Form shall be confidential between the submitting attorney (“Submitting Attorney”) and JAC members, and will not be communicated to persons outside of the JAC without the consent of the Submitting Attorney. Participation in this process does not create an attorney-client relationship with either the JAC or the SCCBA. The Form shall be available on the SCCBA’s website and the availability of this process shall be communicated on a regular basis to the SCCBA membership.

The Policy provides for two types of submissions, i.e., an “Informational Submission” or a “Request for Action”.  In the case of either type of submission, the initial review of the submission (“Initial Review”) shall be limited to the JAC Chair and the SCCBA CEO.

Following the Initial Review of an “Informational Submission”, the substance of such submission may be reviewed by the JAC. In the case of an Informational Submission, i.e., information submitted for informational purposes only, the Submitting Attorney will be contacted by the JAC only if the JAC determines that further follow up is necessary. The identification of the Submitting Attorney will be withheld, absent the consent of the Submitting Attorney to disclosure of his/her identity.

Within two weeks following the Initial Review of a “Request for Action,” the JAC Chair and/or the SCCBA CEO will contact the Submitting Attorney to arrange a meeting of the Submitting Attorney with the attorney members JAC, absent the judicial members of JAC. After meeting with the Submitting Attorney, the attorney members of the JAC will determine whether any action is warranted or whether the Submitting Attorney’s concern will be received for informational purposes only. The JAC Chair and/or SCCBA CEO will explain any contemplated action to the Submitting Attorney. No action will be taken by the JAC without the Submitting Attorney’s consent. The JAC will not be obligated to take action unless the majority of the JAC agrees to take action with the Submitting Attorney’s consent.

Only the attorney members of JAC will decide whether the Submitting Attorney’s “Request for Action” warrants action by the JAC. This decision is not a legal opinion or a determination as to the merits of the attorney’s concern, and is within the sole discretion of the attorney members of JAC.

If the attorney members of the JAC determine that action is warranted, the proposed action will be tailored to the needs of the particular case. The JAC will employ an informal process for resolving attorney concerns. Beyond the guidelines discussed above, there is no specific process or set of rules that the JAC must adhere to in addressing attorney matters submitted through the Form.

Possible actions by the JAC may include, but are not limited to, the following: 1) providing counseling/mentoring to the Submitting Attorney about how to address the concerns without discussions with the involved judge or Presiding Judge; 2) discussing the matter with the Presiding Judge by an attorney member/s of the JAC with consent of the Submitting Attorney but without the Presiding Judge discussing the matter with the involved judge; or 3) discussing the matter by the full JAC with the Presiding Judge with the consent of the Submitting Attorney that the matter be discussed with the Presiding Judge and/or with the involved judge.

The JAC shall prepare an annual report related to the confidential Judicial Assessment Form. The report will include: 1) the number of Forms received as “Informational Submissions”; 2) the number of Forms received as “Requests for Action”; and 3) the outcomes of Forms received as “Requests for Action.” The report should indicate whether any action was taken, and, if appropriate, provide a brief description of any action taken. The report shall not include any personal or identifying information pertaining to any participating attorney or judge.

The Judicial Assessment Poll and the Judiciary Assessment Form and process shall be reviewed no later than two years after implementation to determine whether these measures should be continued, changed and/or abandoned.

Attorneys are welcome, at all times, to present their concerns to their own legal counsel, to the judge involved, to the Presiding Judge, to the Commission on Judicial Performance, to the California Judges’ Association Ethics Hotline, or to any other person or entity. (Attorneys presenting their concern to the judge involved should be mindful of rules regarding ex parte communications.) The Form is not a substitute for any other established forum for submitting formal or informal complaints. The Form is not intended to toll any statute of limitations.

CONCLUSION

Those of us who practice in Santa Clara County are fortunate to have an involved and responsive Judiciary.  The purpose and intent of the Policy is to nurture and sustain the longstanding tradition of the close Bench-Bar relationship that we enjoy in Santa Clara County, by providing a method for meaningful feedback and communication between the Bench and the Bar on matters of mutual interest and concern.

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Tunnel Vision And The Implications For the Legal Profession

Posted By Administration, Monday, October 7, 2013
Updated: Tuesday, May 13, 2014

by Steven B. Haley, Esq., Groom & Cave, LLP
2013 SCCBA President

Tunnel vision, i.e., a narrowed focus or field of vision, is a familiar and inescapable fact of life for attorneys. It is both a necessity and a burden.  It is an inescapable aspect of the lives of all attorneys, regardless of age, practice area, or firm size. It impacts the quality of life issues that confront all attorneys, in their professional lives and their personal lives.

For most attorneys, the focus of their professional lives involves limiting the scope of their professional field of vision to matters defined by their firm and its culture, their office environment, and their cases and assignments.  The ability to drill down and develop a singular focus on a particular case, trial, motion, transaction, and/or issue is a necessary and required skill for all attorneys.

There are many occasions, such as preparation for a dispositive motion or a trial, or the imminent close of escrow on a major transaction, when the demands of the requisite narrowed focus dominates an attorney’s attention, to the exclusion of other cases, and to the exclusion of obligations to family and friends.

The demands of a singularity of focus have a familiar impact on an attorney’s personal life. Struggling with the competing demands on an attorney’s time and attention is a balancing act that is not conducive to personal and professional fulfillment.  Young attorneys frequently comment on the adverse impact it has on developing and maintaining personal relationships while simultaneously embarking on their professional career.  Unlike their Boomer generation colleagues, Generation X, Y & Z attorneys are more likely to insist on a more even balance between their professional lives and their personal lives.

The demands of their professional lives present an even greater conflict for attorneys with young families, who are faced with the familiar demands that child care, school, homework, and sports and other outside activities impose on their time and attention.  This is not limited to attorneys with young families.  The necessity to care for an ill spouse or partner, parents and/or other family members create demands on attorney’s time and contribute to a conflict with the professional demands associated with their career. At the SCCBA Women Lawyers Section’s Lean-In Conference in July, much of the discussion focused on the fact that the pressures and burdens associated with this balancing act inherently fall more heavily on women lawyers than on their male counterparts.

The impact of this singular focus is also reflected in the broader aspects of an attorney’s professional life.  It can blind the attorney to the fact that they are part of a larger legal community.  It can blind them to the opportunities available to them to broaden their role in the local legal community, and to develop their own personal reputation as a professional within this legal community, independent of their normal day-to-day professional life. Taking advantage of the opportunity to become actively engaged in the local legal community through Bar-related activities can enrich and inform the professional life of an attorney in unexpected ways.

In addition, one of the more troubling impacts of the propensity for singularity of focus is that it can blind attorneys to changes in the manner in which legal services will be provided in the future.  The California State Bar recently conducted a series of focus groups of attorneys with 6 to 10 years of experience.  One unexpected conclusion derived from the focus groups was that attorneys in this experience group are so focused on their practice and family related concerns that they are largely unaware of the momentum of major developments related to the legal services marketplace, which developments are likely to have a significant impact on the future of the practice of law in general, and on their careers in particular.

The changing paradigm for the legal services marketplace is reflected in the commoditization of legal services, and in the increasing role that non-lawyer legal service providers are playing in the marketplace.  The increased commoditization of legal services is readily reflected in the increasing availability of basic forms and agreements for contracts, entity formation, family law and patent law from on-line sources.  Similarly, the increasing use and sophistication of Software as a Service (SaaS) technology will continue to play a major role in the commoditization of legal products.  Attorneys who understand this, and who are able to develop the skills and means to utilize such SaaS technology and to incorporate them into their practices, will be far better equipped to survive in the future legal marketplace than those of their counterparts whose narrow focus has left them largely oblivious to these developments.

Non-lawyer on-line providers such as Legal Zoom, Legal Force and Rocket Lawyer are thriving.  Non-lawyer providers represent a change in the manner in which legal services and products are provided.  Their role in the legal services marketplace will increase as they develop more sophisticated means of providing legal services to consumers who traditionally have been potential clients for practicing attorneys.  The exigencies of the requisite narrowed field of vision of our professional lives have left attorneys largely unaware of and poorly equipped to meet the challenges presented by these developments.

It is axiomatic that developing and maintaining a singular focus is a necessary fact of life in the legal profession.  Nevertheless, the desire to achieve a greater work-life balance is gaining increased recognition and acceptance.  The challenge for newer generations of attorneys is to not develop such a narrow field of vision that blinds them to the opportunities for increased involvement in their local legal communities, and to play a more active role as a member of those legal communities.  Of even greater urgency for the legal profession as a whole is the necessity for the newer generations of attorneys to not allow their singular focus to blind them to the changing paradigm in the legal services marketplace, and the impact that such changes will have on their professional lives and on the future of the legal profession.

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Providing Legal Services In A Changing Environment

Posted By Administration, Friday, August 9, 2013
Updated: Tuesday, May 13, 2014

by Steven Haley, Groom & Cave, LLP
2013 SCCBA President

It is not uncommon to open a State Bar journal or an ABA publication and find an article discussing the increasing difficulties confronting solo and small firm practitioners, and/or the imminent demise of local bar associations.  These articles reflect the reality of a paradigm shift for the practice law in this transformative era.

Advances in technology are changing the landscape for the practice of law.  Basic forms and agreements for contracts, entity formation, family law and patent law are becoming more readily available from on-line sources.  This is part of the process of the commoditization of legal products. Non-lawyer on-line providers such as Legal Zoom, Legal Force and Rocket Lawyer are thriving.  Such non-lawyer providers represent a change in the manner in which legal services and products are provided.  Not willing to rest on their successes, they are devoting research and development resources to increasing the complexity and sophistication of their products, through the use of Software as a Service (SaaS) technology.  Large law firms also are making basic legal forms available on-line.

Attorneys who practice in the solo or small firm environment are faced with many challenges.  The nature of their practices involves dealing with factors such as limited resources and limited support.  Effective marketing of their services is a perennial problem.   In addition, solo and small firm attorneys frequently experience a sense of isolation, i.e., a sense of not being connected to the greater legal community.  The challenges presented by advances in technology have the potential to exacerbate the difficulties of solo and/or small firm practices.  Some futurists anticipate that technology advances and market-forces will squeeze out solo and small firm practitioners in the near term, with mid-size firms sure to follow thereafter.

0813blogquoteIn order to address the paradigm shift presented by on-line technology advances, solo and small firm attorneys need to develop the skills necessary to compete in that environment.  This applies to all generations, i.e., Boomer, Gen X and Gen Y.  The fact is that while on-line technology advances present challenges for attorneys, they also present opportunities for attorneys to meet this paradigm shift and to use it for their advantage.  For example, cloud-based technology can improve the manner in which legal services are provided.  The use of cloud-based technology can improve communication between attorneys and clients.  Storage of practice-related materials and files in the cloud can provide significant cost-savings for the solo and small-form practitioners. Indeed, some attorneys are shifting to a virtual on-line practice; others are developing a hybrid style of practice, using opportunities presented by the cloud-based technology while still maintaining a physical office.

Technology benefits new attorneys and experienced attorneys as it relates to developing on-line marketing skills.  The lack of on-line marketing skills can render an attorney invisible to potential clients.  New attorneys and experienced attorneys alike realize that they need to develop and improve their on-line marketing skills, such as search engine optimization (SEO), in order to adapt and to differentiate their services from the background noise of the on-line environment. Developing and mastering such on-line marketing skills can level the marketing playing field for solo & small firm practitioners vis-à-vis large firms and non-lawyer on-line providers.

Voluntary bar associations as well are faced with a shifting landscape, principally related to the demographics of their membership.  The Boomer generation is well known to be a generation that readily joined membership driven professional groups and associations.  However, the Boomers are rapidly reaching the retirement age, and membership driven associations of all types are expected to experience dramatic decreases in membership.  The issue for such groups is to attract new members from the Millennial generations, otherwise known as Gen X and Gen Y.  Millennials are perceived as not being willing to join an organization simply because it has always been there; they are interested in how the organization can provide value to their professional life.  Voluntary bar associations are not immune from these issues and these demographic pressures.  Supposedly, the hey-day of bar associations has passed.

Despite these challenges, voluntary bar associations can provide value to their members’ professional lives.  Value involves providing relevant continuing legal education programs for members to assist them in developing on-line skills for the use of cloud-based technology, and for establishing an on-line marketing presence; as well as providing guidance as to the potential ethical pitfalls related to the on-line practice of law.  The SCCBA’s Law 3.0 series of programs is an example of this type of value-driven continuing education.

Local bar associations provide many intangible benefits to their members, as well.  Providing opportunities that allow members to develop a leadership role in the local legal community is an important added value to bar association membership and helps individual lawyers fill their unique role as lawyers in our democracy.  A member’s participation in bar association committees and sections in their chosen fields of practice provides them with this leadership role. Similarly, participation in bench-bar related activities increase a member’s opportunity to be more actively involved in the broader local legal community beyond the day-to-day representation of clients.

Bar associations can also provide value to their members by providing networking opportunities, whether in the form of substantive law committees, in which attorneys have shared interests with the other members, or in the form of social events. The prevailing wisdom has been that networking will not be a significant value for bar association members in the future, particularly to Gen X and Gen Y attorneys.  Contrary to this accepted wisdom, the SCCBA has experienced an increase in the expectation of, and participation in, professional networking opportunities by both experienced and newer attorneys alike.

There is no dispute that developments and advances in technology, and the on-line commoditization of legal products and services, present challenges for attorneys, old and new.  However, the paradigm shift for providing legal services also presents opportunities for attorneys to adjust and adapt to the changing environment for the legal profession.  Local bar associations as well need to adapt in order to provide value to their members by providing education programs designed to address such issues. They can also be a source of intangible value to the professional lives of their members by providing leadership opportunities and opportunities to become more actively involved in their local legal communities.

The SCCBA leadership, past, present and future, is working diligently to make this transition.  We see it as an exciting opportunity for attorneys to meet their professional obligations as part of the third, independent branch of government.

The relationship between attorneys and local bar associations has historically been one of mutual dependence, mutual benefit and mutual value.  The challenges presented by the ever-increasing pace of change in the legal services environment will compel both attorneys and local bar associations to adapt in this transformative era.

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SCCBA Launches “Law 3.0: Navigating Future Legal Technology”

Posted By Administration, Monday, July 8, 2013
Updated: Tuesday, May 13, 2014

by Stephen Haley, Groom & Cave, LLP
2013 SCCBA President

The Santa Clara County Bar Association (“SCCBA”) has launched its “Law 3.0:  Navigating Future Legal Technology” series of MCLE programs (“Law 3.0 Series”).

The Law 3.0 Series reflects the dedication of the SCCBA to illuminate the nature and scope of the changing paradigms for the practice of law, and to provide insights and the means by which SCCBA members can adapt to the changing environment for providing legal services.  The scope and breadth of the Law 3.0 Series is unique at a county bar association level.

Technology is driving dramatic changes in the manner in which legal services are provided by attorneys and by non-attorney service providers. Change, and the increasing pace of change, will continue to be a fact of life for all of us in the legal profession.

The Law 3.0 Series is the result of the efforts of the SCCBA 2013 President’s Project Steering Committee.  The Steering Committee members are:  Clark Stone, Chair; Jordan Becker; Christine Burdick; Jill Fox; Elena Rivkin-Franz; Josh Gilliland; John Mlnarik; John Steele; Matthew Rudy; Dianne Sweeney; Stephen Wu; and myself.

The Committee was formed in early 2013 to focus on the challenges presented to the legal profession, in particular solo and small firm practitioners, related to providing legal services in the on-line environment; to present members with an understanding of the ethical concerns involved in the virtual practice of law; and to assist members in identifying and developing the skills to allow them to utilize the advantages presented by technological developments in providing legal services.

Meeting throughout the Spring, the Committee developed three CLE programs to address these issues.  I would like express my deep gratitude to the Committee members for their dedication and enthusiasm in developing the Law 3.0 Series.

The first Law 3.0 Series program to be presented is entitled “Moving Into The Virtual World”.  The program will be presented on July 19, 2013, from Noon to 2:00 p.m.. The program is designed to familiarize attorneys with the fundamentals of virtual law practice, including cloud technologies that facilitate communication, productivity and efficiency; marketing; and ethics related issues. The presenters will present the use of this technology from the perspective of different business models: virtual-only, hybrid and multi-jurisdictional.

The presenters for this program are uniquely qualified to discuss the subject matter.  Donna Seyle will lead the discussion.  She has served as a member of the ABA’s eLawyering Task Force, and as a member of the California State Bar’s Law Practice Management - Technology Section.  She is the founder of Law Practice Strategy, and advises solo lawyers and small firms on the use and integration of cloud technology to expand their legal services delivery options.  David Goldenberg is one of the founding members of VLP Law Group, LLC, a multi-jurisdictional law practice that operates solely on a cloud-based business model.  Matthew Rudy, a solo family law practitioner, operates his practice as a hybrid business model, incorporating cloud-based services with a traditional physical office.

The second Law 3.0 Series program, “The Entrepreneurial Attorney”, will be presented on September 22, 2013, from Noon to 4:00 p.m..  This program will provide an overview of the changes and challenges in the competitive environment for attorneys presented by advances in technology, the manner in which changes in technology are being utilized by attorney and non-attorney providers to provide legal services for clients, and will provide insight for practitioners as to how to adapt to and incorporate the use of technology in building and maintaining their practices.

There will be four presenters for this program.   Raj Abhyanker, who is the founder of LegalForce, Inc., which provides an online legal technology platform to provide individuals, small businesses, law firms, and multinational corporations with the tools to automate, streamline, and simplify processes related to trademarks, corporate registrations, and domain filings.  Tom Melling is an Entrepreneur in Residence for the Stanford Law School CodeX Center for Legal Informatics.  Mr. Melling is a Co-founder and former President of Serengeti Law, an innovative and leading provider of the legal profession’s most widely used legal project management workflow tools for corporate legal departments.   Roger Royse, is a partner in Royse Law Firm, PC, and is a frequent presenter for SCCBA continuing education programs.  He will provide insight into incorporating the use of marketing strategies in the growth of a legal practice. Morgan Smith, is the Founder and President of Cogent Legal, which provides trial preparation services for attorneys, including interactive presentations related to the use of informational interactive litigation graphics and animation, and incorporating the use of technology in the courtroom as part of the trial strategy.

The third Law 3.0 Series program, “The Ethics of Legal Tech”, will be presented on December 10, 2013.  The presenters will be John Steele, of the Law Offices of John Steele, and Alison Buchanan, a shareholder in the Law Offices of Hoge, Fenton, Jones & Appel.  This program will focus on the present and anticipated ethical challenges presented by practice in the virtual world, related to the areas of providing legal services on a cloud-based format, as well as marketing and advertising of services.

The three programs will provide a cumulative 8 hours of MCLE credit, including 5.5 hours of general substantive law credit and 2.5 hours of Legal Ethics credit. All three of the programs will be presented at the SCCBA Offices, located at 31 North Second Street, 4th Floor, San Jose, California.  They will also be available as a live webcast.

The Law 3.0 Series reflects a concerted effort on the part of the SCCBA to address the multiple challenges and issues confronting experienced and new attorneys alike.  I urge all of our members to take advantage of this unique educational and informational opportunity, and to incorporate the experiences and insights of the panel participants into their practices in what has become a transformative era in providing legal services to our clients.

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Welcoming New Attorneys To Our Legal Community

Posted By Administration, Friday, June 7, 2013
Updated: Tuesday, May 13, 2014

by Stephen Haley, Groom & Cave, LLP
2013 SCCBA President

Earlier this month, I had the pleasure of speaking at the New Admittee Swearing In Ceremony hosted by the Santa Clara County Bar Association (“SCCBA”).  The new lawyers were sworn in by the Honorable Brian Walsh, Presiding Judge of the Santa Clara County Superior Court, and by the Honorable Edward Davila, of the United States District Court for the Northern District of California.

In addition to swearing in the admittees, Judge Walsh and Judge Davila each addressed the new attorneys, emphasizing the necessity of developing a sense of civility and professionalism in the manner in which they conduct their career, and encouraging them to become involved in our local legal community.

As most of us may recall from our own admission ceremonies, the new lawyers were excited (and relieved) to have passed the Bar Exam and to finally be admitted to the California State Bar; as well as somewhat uncertain as to what awaits them as they enter our profession and join our local legal community.   It is undeniable that the legal profession that the new lawyers are entering in 2013 confronts significant challenges and an ever-shifting landscape for the practice of law.

Disruptive technologies are having an increasing impact in many different areas of modern life.  The legal profession is not immune from the impact of these disruptive technologies.  They are a driving force in accelerating the changing paradigm for the practice of law.  The complexity and sophistication of these changes will continue to develop and will continue to make themselves felt throughout all of the professional careers of these new attorneys.

New attorneys can anticipate that traditional models for delivery of legal services to the public are being challenged.  Non-lawyer on-line legal service resources are utilizing web-based technology to develop and market alternatives to the traditional law practice models.  The complexity and sophistication of these on-line services will continue to develop.  Cloud-based practice models for office operations, information storage, and communication with clients and with opposing counsel are becoming more commonplace.  The combined impact of these forces is causing irreversible change in the nature of the practice of law and for the delivery of legal services to our clients.

As a profession, all of us, experienced and new attorneys alike, must embrace these changes, and re-imagine the manner in which we provide guidance and value to our clients.  The new attorneys will play a vital and integral part in addressing and effecting these changes in the coming years.

The new attorneys were advised to actively pursue involvement in the legal community and in the broader local communities; and that doing so would expand and enrich their professional and personal lives.

Adam Davis, of the Davis & Young Law Firm, and Megan Ottoboni, of Greenfield Sullivan Draa & Harrington, LLP, are the current Co-Chairs of the SCCBA Barristers Committee.  They both addressed the new attorneys.  They stressed the benefits of membership in professional associations such as the SCCBA, which provides new attorneys with numerous opportunities to become active in and to contribute to our legal community; as well as the opportunity to develop a leadership role in the legal community. They encouraged the new attorneys to take the time to get involved in our local legal community in order to expand and enrich their professional lives.

The new attorneys were also encouraged to seek out and develop mentors to assist them in their growth as lawyers and as professionals.  Unlike the emphasis on theory that is the focus of the law school and the bar exam experience, the reality of the every day practice of law is based on the traditions and practices that are only learned through experience.  New attorneys need advice on substantive law issues and procedural skills; and on how to recognize and handle ethical questions. Those of us who are experienced practitioners need to be willing mentor our new colleagues.

Finally, with regard to their development as legal professionals, the new attorneys were reminded that two principles must be at the forefront of their consciousness: Ethics and Integrity.

One of the defining aspects of being an attorney is the traditional role that Ethics plays in all aspects of our profession.  As attorneys, we are guided by the Rules of Professional Conduct.  Adherence to these ethical guidelines sets us apart from other professions.

The SCCBA developed and adopted its Code of Professionalism in 1992 during Judge Walsh’s term as SCCBA president. Under the provisions of the Code, all attorneys bear a duty of professionalism, which includes “civility, professional integrity, personal dignity, candor, diligence, respect, courtesy, cooperation, and competence.”  The Code has been adopted by the Santa Clara County Superior Court, and has formed the basic model for codes of professionalism adopted by other bar organizations throughout the country, including the State Bar of California.  The new attorneys were urged to become familiar with the Code, and to adhere to its ideals and philosophy.

As members of the larger legal community, the new attorneys were also encouraged to act with Integrity in their dealings and interactions with their clients and all members of the legal community with courtesy and respect.

The experience of most attorneys is that, as time progresses in the course of their legal careers, they develop a deep and abiding appreciation for the significance of the role of ethics and integrity in our profession.  It is clear that the ethical principles of our profession will be of even greater importance in the changing environment for the practice of law.  The new attorneys were encouraged to embrace and be guided by the ethical standards of our profession.

We welcome the new attorneys that were sworn in at the SCCBA offices earlier this month as colleagues in our profession, and we look forward to them becoming contributing members in our local legal community.

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Lawyers, Leadership and the Judicial Branch Funding Crisis

Posted By Administration, Wednesday, May 8, 2013
Updated: Tuesday, May 13, 2014

President's Message, May 2013

It is axiomatic that the judicial system is the one branch of government that the largest number of people come into contact with in the course of their daily lives.  Access to the judicial system, and the ability to seek redress through the courts, is an integral part of our system of government.

Attorneys take an oath to preserve the Constitution & to maintain respect for the courts. (Bus. & Prof. Code §§ 6067 & 6068.) The State Bar and its members are subject to the control of the California Supreme Court; and all State Bar members are officers of the court. (California Constitution, Article VI, §9; Bus. & Prof. Code §6001.)

Attorneys are charged with a professional responsibility to preserve and ensure the effective access to the courts and to justice.  The ABA encourages attorneys, in their leadership role as public citizens, to seek improvement of the law, access to the legal system, effective administration of justice and the quality of service rendered by the legal profession.  (ABA Model Rules of Professional Conduct, Preamble.)

In The Leading Lawyer, A Guide To Practicing Law and Leadership (2009, Thomson Reuters/West), Robert W. Cullen asserts:  “Leadership is our direction, our future, our calling.  Leadership is an imperative, it is our challenge.”  (Cullen, The Leading Lawyer, p. 147.)

The foregoing, as seen in the context of the current judicial funding crisis, emphasizes the opportunity for attorneys, as officers of the court and as citizens of our communities, to act in a leadership capacity in order to support and advocate for a strong judiciary, including adequate and effective funding of the courts, to ensure open and meaningful access to the legal system for all clients and citizens, and to support the operation of a healthy system of judicial administration.

Traditionally, the Judicial Branch budget accounted for 2.5% of the entire State Budget.  Over the past five years, the Judicial Branch’s share of the entire State Budget has been reduced to 2.1%.  The Judicial Branch has experienced overall funding reductions of $535 million in the past 5 years.  Historically, the Judicial Branch budget was funded through a combination of funds derived from the State’s General Fund and other funds, such as grants and fees.  The General Fund share of the Judicial Branch budget has been reduced from 56% to just 20%.

The resulting funding gap has been offset by dramatically increasing court related fees, on the one hand, and by ‘sweeping’ local court reserves and building funds on the other hand. Indeed, over the past five-years, in order to prevent catastrophic shutdowns of courts, court user-fees and fine assessments have been raised, and statewide courthouse construction project funds were diverted to court operations. As a result, most statewide construction projects have been delayed, and many terminated.

The residents of our State face the looming specter of a court system that has been reduced to a ‘fee-based’ service.  This is an intolerable prospect for the third, co-equal branch of our democratic system of government

The negative impact of the funding cuts to the Judicial Branch on a statewide basis is accelerating.  Since 2010, 61 courthouses have been closed; that number is likely to climb to at least 70 in the next year. Branch courts have been closed in 25 counties. Statewide, 175 courtrooms have been closed.  Furloughs averaging one day a month have been adopted in 20 counties. Courts related to specific problem areas, such as drug diversion courts, have been closed in at least 18 counties. Lengthy delays for hearings in significant legal matters such as domestic violence calendars and child custody mediation are increasing. Clerk’s office hours have been reduced; small claims hearings and traffic court matters are subject to lengthy delays. The economic impact of delays in the resolution of both personal and business disputes is undisputed, if not readily calculable.

Traditionally, the manner in which Judicial Branch funding has been allocated to the different county trial courts has been on a pro rata formula.  Unfortunately, over time the pro rata formula has resulted in certain inequities in funding for certain counties, and has led to disparities in the scope and quality of services available for the residents of the 58 counties.

In order to address concerns of the Governor and the Legislature, the Judicial Council formed a Trial Court Budget Working Group (“Working Group”) in the Fall of 2012. The primary purpose of the Working Group is to advise the Administrative Director of the Courts on the preparation, development, and implementation of the budget for the benefit of all of the trial courts statewide.  The immediate task of the Working Group has been to devise a method to provide roughly equal access to the court system on a statewide basis.

On April 26, 2013, the Judicial Council unanimously adopted a new funding allocations process for trial courts, based on a weighted workload allocation formula instead of the existing pro rata formula. The new Workload-based Allocation and Funding Methodology (“WAFM”) represents a tectonic change in the trial court funding allocation process.  Without getting into the weeds as to the details of the weighted workload allocation formula, the new allocation process will shift current baseline funding from some courts to others. The WAFM will apply to all new funding for the trial court system.  The revisions to the traditional baseline funding methods will be phased in over a 5 year period.

Certain counties, including the Santa Clara County Superior Court, will experience a decrease in funding under the new allocation formula.  Notwithstanding this, the WAFM has the support of those courts which will be experiencing a decrease in funding under the new formula, including the support of Santa Clara County Superior Court Presiding Judge Brian Walsh.

The only certain means to negate the impact of the new allocation funding formula on the Santa Clara County Superior Court is for the Legislature to increase the overall funding to the trial courts in the Judicial Branch budget.

The Governor’s 2013-2014 Proposed Budget, released in January 2013, anticipates a further $200 million dollar decrease in trial court funding.  The Governor’s Proposed Budget is currently the subject of on-going Legislative review hearings.  Surprisingly, it also now appears that there will be an unanticipated surplus of as much as $3.5 billion available as the Legislature reviews the 2013-2014 Proposed Budget.

It is incumbent on attorneys to act in their inherent leadership role and to support restoration of funding to the Judicial Branch so as to provide meaningful services and access to the courts for all residents of the State of California. This includes:  restoration of the $150 million permanent reduction in the 2011-2012 judicial branch budget; elimination of $125 million in automatically triggered cuts to general fund allocation to the judicial branch; repeal of the 1% reserve fund limitation/ceiling; and funding for necessary court facility construction projects.

“[L]eadership for lawyers is ‘[t]he process by which an individual or group influences others to achieve positive, ethical change.’” (Cullen, The Leading Lawyer, p. 13, quoting Dean Donald Polden, Santa Clara University School of Law.)

Now is the time to act to facilitate a positive change:  contact your local state legislators; and urge them to restore the cuts to funding of the Judicial Branch.

Advocate for your clients and for all residents of the State of California, so that they can have meaningful access to the courts in order to seek enforcement of their rights and to seek remedies for their disputes.

Advocate for the integrity and the vitality of the Judicial Branch.

Advocate now.

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Are Attorneys Meeting Their Ethical Obligation Regarding Technological Proficiency in Providing Legal Services?

Posted By Administration, Monday, April 8, 2013
Updated: Tuesday, May 13, 2014

by Steve Haley

The use of mobile, internet-enabled devices as a means of providing legal services has been increasing dramatically.  This is not surprising; it is simply a reflection of the overall increase in digital commerce in all walks of life and business.  However, as attorneys, we bear a strict ethical responsibility related to maintaining confidentiality in communications with, and information related to, our clients.


The theme of the Santa Clara County Bar Association in 2013 is to engage in a prolonged discussion surrounding the increasing use of technology in the practice of law.  The purpose of this month’s President’s Message is to discuss whether, and to what extent, attorneys are required by the rules of professional conduct to develop technological proficiency in this ever-changing environment for providing legal services.

In August, 2012, the ABA House of Delegates (“HOD”) adopted several revisions to the ABA Model Rules of Professional Conduct (“MRPC”), including both rules and comments, designed to address the impact of technological advances on the manner in which attorneys provided legal services to their clients.  Although the MRPC are not binding on California attorneys, they are considered to provide guidance in the absence of on-point California authority or a conflicting state public policy.  (City & County of San Francisco v. Cobra Solutions, Inc. (2006) 38 Cal.4th 839, 852.)  Among the MRPC rules that were amended were Rules 1.1 and 1.6.

MRPC Rule 1.1, relating to lawyer competence, provides that an attorney shall provide “competent representation to a client.”  “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The HOD modified Comment 6 to Rule 1.1 to state that, in order to maintain this competence, lawyers should keep up with changes in the law and its practice, “including the benefits and risks associated with relevant technology.”

MRPC Rule 1.6 relates to confidentiality of information. The HOD adopted a new section (c), which requires lawyers to make “reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.” Comment 16 to Rule 1.6 describes the meaning of “reasonable efforts”, as follows:

“Factors to be considered in determining the reasonableness of the lawyer’s efforts include, but are not limited to, the sensitivity of the information, the likelihood of disclosure if additional safeguards are not employed, the cost of employing additional safeguards, the difficulty of implementing the safeguards, and the extent to which the safeguards adversely affect the lawyer’s ability to represent clients (e.g., by making a device or important piece of software excessively difficult to use).”

Comment 16 also recognizes that clients may also require implementation of special security measures not required by Rule 1.6, or may give informed consent to forgo security measures that the rule would otherwise require. The comment contains a reminder that other laws, such as state and federal laws governing data privacy or breach notification requirements, may also impose other requirements.

The foregoing amendments to the MRPC raise the question of whether and to what extent attorneys are expected to become experts in the use of technology, as part of their duty to be cognizant of the benefits and risks associated with technology.

The California State Bar’s Standing Committee on Professional Responsibility (“COPRAC”) has recently addressed issues related to the extent to which attorneys are expected to be proficient and knowledgeable regarding technology in providing legal services.

COPRAC issued Formal Opinion 2010-179 (“Opinion 10-179”), related to transmitting or storing confidential client information when the technology may be susceptible to unauthorized access by third parties, for example, working and communicating through a wireless connection in a public place, such as a coffee shop.  In Formal Opinion 2012-184 (“Opinion 12-184”), COPRAC issued an opinion related to providing legal services through a virtual law office.

Opinion 10-179 set forth a number of factors to be considered in using internet resources in performing legal services for clients.  The overall factors to be considered include:  (a) the attorney’s ability to assess the level of security afforded by the technology; (b) legal ramifications to a third party for intercepting, accessing or exceeding authorized use of another person’s electronic information; (c) the degree of sensitivity of the information; (d) the impact on the client of an inadvertent disclosure of privileged or confidential information or work product; (d) the urgency of the situation; and (f) whether the client has instructed the attorney not to use certain technology due to confidentiality concerns, or if the attorney is aware that there is a greater than normal risk that others have access to the client’s technological devices.

Regarding the first factor, i.e., the attorney’s ability to assess the level of security afforded by technology, one illustration cited in Opinion 10-179 related to the common practice for attorneys and clients to communicate via unencrypted Internet email.   Most attorneys have firewall protection software for their computer servers and for their email communications.  The Opinion compared the risk of interception of email communication as being similar to the risk that first class mail may be opened by unauthorized third parties.  While there is a risk of interception of such email, such email communication is considered to be an acceptable practice and subject to the protection of the attorney-client confidentiality privilege.  Encryption of attorney-client communication via Internet email from the attorney’s office is an option to be considered, but is not required.

Attorneys need to assess whether and to what extent reasonable precautions may required in order to increase the level of security in using the technology involved (i.e., email communication; or using internet resources to access or work on confidential client-related projects), particularly when they are operating outside of the normal protections available at their offices.  For example, the use of encryption protocols or matter-specific passwords to protect the confidentiality of attorney-client communication may be more prudent depending on the circumstances, such as communicating by email with a client from a public wireless hot spot.  Attorneys should make an effort to be familiar with the use of such precautionary measures when operating in an unsecure environment.

Attorneys should also be cognizant of the extent to which third parties may be entitled to access or monitor the use of the technology involved.  If the terms of a license agreement permits the provider to have access to the attorney’s account or use of the technology, the attorney may need to confirm that the terms of the agreement do not permit the third party to disclose confidential client information to others or to use the information for purposes not related to the functionality of the technology; this is particularly so if the client information is highly sensitive.

Opinion 12-184 provided the following general guidance for attorneys regarding the topic of familiarity with technology:

This Committee has recognized that while Attorney is not required to become a technology expert in order to comply with her duty of confidentiality and competence, Attorney does owe her clients a duty to have a basic understanding of the protections afforded by the technology she uses in her practice. If Attorney lacks the necessary competence to assess the security of the technology, she must seek additional information, or consult with someone who possesses the necessary knowledge, such as an information technology consultant. (Rule 3-110(C); Cal. State Bar Formal Opn. No. 2010-179.)

As attorneys increase their use of mobile internet-enabled devices in order to communicate with clients and to provide other legal services, the need to increase the use of precautions necessary to preserve and to ensure confidentiality, and to avoid inadvertent disclosure of a client’s information, becomes more critical.  Although attorneys may not be required to be technology experts, they need to recognize the potential threats to client confidentiality, and to take ‘reasonable efforts’ to preserve that confidentiality.

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Reflections on Santa Clara County's Mock Trial Program

Posted By Administration, Monday, March 11, 2013
Updated: Tuesday, May 13, 2014

2013 President's Message
Guest Author Kevin Hammon,
Member, SCCBA Executive Committee

Last month, a sea of 400 high school students gathered outside the Downtown Superior Courthouse on First Street. Well-used backpacks adorned suit jackets, and long slacks transformed tennis shoes into appropriate courtroom footwear. Future lawyers, doctors and engineers poured out of minivans like paratroopers descending into battle. An enthusiastic team of students, with matching bespeckled bowties and neck scarves, greeted its members with hugs and high fives. Teacher and attorney coaches delivered heartfelt pep talks to their eager yet nervous students. Around 5:30 p.m., the schools were dispatched from the courthouse jury room to their assigned courtrooms. By 6:00 p.m., seats were filled, team rosters were distributed, and the annual Santa Clara County high school mock trial competition was well underway.

The Constitutional Rights Foundation (“CRF”) created California’s mock trial program in 1980. CRF prepares the case materials. These materials are provided to the various county coordinators, who then distribute them to the participating high schools. In Santa Clara County, mock trial is facilitated through a partnership of the County’s Bar Association, Superior Court, and Office of Education. This year, the mock trial final round was heard before Judge Jacqueline Arroyo on February 28, 2013 in the Old Courthouse’s majestic Department 17. Willow Glen High School emerged victorious after narrowly defeating finalist Monta Vista High School. The 2013 semifinalists were Archbishop Mitty High School and Los Gatos High School. The 2013 quarterfinalists were Gunderson, Lynbrook, Sobrato and Leigh High Schools.

I first encountered the mock trial program many years ago as a student at Leland High School in south San Jose. At the age of sixteen, I was less interested in the vocational aspect of mock trial and more interested in finding a sense of belonging. Mock trial gave me an instant connection to students I otherwise would have never met. For me and many others, mock trial served as a cultural canopy, providing refuge from the self-conscious world of rigid high school cliques. My teammates were supportive and encouraging. We embraced the challenge of understanding witnesses, formulating arguments, and constructing case narratives. Through mock trial, I learned that good lawyers, at their core, are good storytellers.

My coach was a local attorney named Jim Scharf. Jim embodied that rare combination of insight, passion and humor. As a high school senior, I had the privilege of conducting the direct examination of my younger brother, Patrick Hammon. Patrick portrayed a French detective with his own unique brand of je ne sais quoi. With Jim Scharf’s tutelage, Patrick would later lead Leland High School to its only county championship.

In 2004, I returned to San Jose as an associate at a local law firm. I received an email from then-future Bar Association President Mark Shem, asking if I would be interested in serving as a mock trial coach. Over the years, Mark had transformed Lynbrook High School into a veritable mock trial juggernaut. With four county championships, Lynbrook had become one of Santa Clara County’s most successful mock trial programs.

After reading Mark’s email, I decided to reintroduce mock trial to Leland High School. Coaching gave me the opportunity to work with my youngest brother, Cory Hammon. Cory quickly became a mock trial superstar like his older brother Patrick. For seven years, I served as the attorney coach for Leland’s mock trial team. Teaching high school students gave me a sense of self-fulfillment. I used stick figures and pop culture references to explain the California Rules of Evidence. I enjoyed humanizing the characters described in the mock trial materials. There are few things more rewarding than teaching a high school student to empathize with a criminal defendant or a victim of violent crime.

More recently, I have handled the administrative side of mock trial, serving as the Chair of the Bar Association’s Law Related Education (“LRE”) Committee (2010-2011) and the Tournament Administrator (2012-present). In these capacities, I have gained a tremendous appreciation for our Santa Clara County judges who preside over the mock trial rounds, and our attorneys who volunteer their time to serve as scorers. Current LRE Committee Chair Josh Gilliland exemplifies the spirit of volunteerism critical to the sustainability of our mock trial program. Not only does Josh oversee tournament logistics, he also coaches Santa Clara High School’s mock trial team. Josh describes his experience with mock trial as “positive” and “rewarding.” Deputy District Attorney Johnny Gogo has also served a vital role in recruiting scorers for each round. Johnny has become so valuable to the program, the annual volunteer appreciation award has been renamed the “Johnny Gogo Award.”

On a personal note, I discharged my 2013 mock duties while on a seven-week paternity leave graciously authorized by my supervisors at the Santa Clara County Counsel’s Office. My four-month old son, Elijah, was often forced to join me at the Downtown Superior Courthouse. I introduced Elijah to Josh Gililand, Mark Shem, Jim Scharf, and several others. I was pleased to learn that Jim now coaches the Willow Glen High School team, our 2013 county champion. Jim now coaches his sons Jeremy, Jordan, and Mason. Jim says they have “forged a new-found understanding and respect for one another” through mock trial. I remember practicing mock trial objections many years ago at Jim’s home, when his then-infant children were just learning to crawl. With their talent and poise, Jeremy, Jordan, and Mason have each left an indelible mark on the mock trial program. Perhaps one day the Scharf boys will return to the mock trial program as attorney or teacher coaches- this time, with Elijah as their pupil.

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A Close Bench-Bar Relationship That Spans 137 Years

Posted By Administration, Wednesday, February 6, 2013
Updated: Tuesday, May 13, 2014

1800-county-courthouse[Editor’s Note:  A copy of the original handwritten minutes of the formation of the San Jose Legal Club of 1877 can be viewed here.]

One of the pleasures of being SCCBA President is the willingness of our members to share with me their experiences, concerns, and suggestions regarding our Association.  Recently, I had an unexpected conversation with Henry Rendler, a San Jose debtor’s rights attorney. Our conversation concerned the initial efforts of the San Jose legal community to form an association in the 1870s.  (Yes, you read that correctly, the 1870s.)

Henry related that his father, Eugene Rendler, was an attorney who had practiced in San Jose.  According to the State Bar website, Eugene Rendler was admitted to the Bar in October 1935, and was assigned State Bar ID number 15015.  (Henry, by contrast, was admitted to the Bar in November, 1978, and is the proud holder of State Bar ID 83704.)  Henry’s recollection is that his father was active in the SCCBA, and served as SCCBA Secretary in 1937.

Somewhere along the line, Eugene came into possession of a Minute Book belonging to a William G. Songau, dating back to the 1870s & 1880s.  The book itself is a treasure trove of handwritten minutes of court proceedings, poetry, pressed flowers, and sketches.  Of interest to this month’s column is an entry for August 4, 1877, which relates the minutes of the formation of the San Jose Legal Club, the precursor to the SCCBA, set down in a florid, cursive handwriting style.   Below is a reconstruction of the minutes dated August 4, 1877 (subject to the proviso that the spellings of the names are educated interpretations of the handwritten entry).

Formation of A Legal Club Pursuant to a notice a number of the attorneys of the San Jose Bar met at the County Court room Tuesday July 31st for the purpose of making the preliminary arrangements for the organization of a legal association.

On motion - J. H. Campbell was chosen Chairman and Wm. G. Songau Secretary.  Mr. Hinds stated the purpose of the meeting and the object of the proposed society.  The proposition was then generally discussed by the various members present and in motion a committee consisting of Messrs. D. S. Payne, Judge Collins, J.N. Stephenson and G. Shaw was appointed to submit a plan of organization.  On motion to chairman J.H. Campbell was added to that committee.  A committee consisting of Messrs. W. L. Lovell, W.S. Gill and S.J. Hinds was appointed to confer with the Board of Supervisors for the use of the County Court room as a place of meeting for the present should any question of occupancy arise.  The secretary was instructed to obtain a copy of the rules and regulations of the Bar Association of San Francisco.   No further business requiring the attention of the meeting it adjourned to meet Thursday, August 7th at 7 o’clock at the County Court Room.

Wm. G. Songau Secretary

Approved August 4, 1877.

This document is of interest on several different levels.  First, it is interesting to note that, even in the 1870s, attorneys felt the necessity of forming an association for the purpose of sharing matters of common interest and concern.

The second point of interest is the fact that this initial, formative meeting of the San Jose Law Club was conducted in ‘the’ County Court Room.  No doubt the Court Room seemed to be the logical location for such a meeting and that Judge David Belden, the local judge at the time, sanctioned the meeting.  It illustrates that, even as long as 137 years ago, the members of the legal community, i.e., the judiciary and the local attorneys, recognized the value of developing and maintaining a strong Bench-Bar relationship.

To this day, our Bar Association values its close working relationship with the local Bench.  Our Bench –Bar relationship manifests itself in many different areas.

One of the most visible examples of this close relationship is the participation of the members of the Bench in our continuing legal education seminars.  Many members of the Santa Clara County Superior Court bench willingly volunteer to be members of CLE panels in a broad variety of practice areas, such as:  Federal courts; appellate courts; ethics; civil practice; eDiscovery; and Law & Motion practice, to name a few.  The judges actively participate in the planning and preparation for the presentations.  Former attorneys themselves, they recognize the value that the joint efforts of the Bench and Bar contribute to maintaining the high standards of practice within this County.

Our close Bench-Bar relationship is also reflected in the Court’s Temporary Judge Program.  Attorneys volunteer their professional training and experience and thousands of hours of their time as temporary judges in traffic court, small claims court and family court.  Attorneys also volunteer at mandatory settlement conference proceedings throughout the court system.  This program represents a joint effort on the part of our legal community to provide a significant benefit to the members of the public in this County.

There are other examples of the breadth of the close Bench-Bar relationship in Santa Clara County.  The SCCBA adopted its Code of Professionalism in 1992, and updated it in 2007. The Code represents a guideline for the professionalism and civility expected of counsel practicing in this legal community, whether in litigation matters or in transactional matters.  The Santa Clara County Superior Court adopted the Code of Professionalism as a Standing Order in September 1992, and it remains in full force and effect.

The SCCBA Judiciary Committee responds to the Governor’s requests to evaluate individuals under consideration for a judicial appointment.  The SCCBA Fair Election Practices Commission provides a confidential forum for judicial candidates to raise concerns or grievances regarding the conduct of contested judicial elections, in order to avoid inappropriate public campaign behavior.

The on-going Court Funding Crisis provides another clear illustration of the close working relationship between the Bench and the Bar in this County.  2012 SCCBA President Mindy Morton was a member of the statewide Open Courts Coalition, formed to advance the purpose of educating the legislature and the public as to the necessity for adequate funding of the judicial system, the third branch of government.  In 2012, she lead a delegation of SCCBA members to San Francisco in order to participate in the Access to Justice event involving attorneys from all over Northern California.

The formation of the San Jose Legal Club in July 1877, provides us with a rare glimpse into the beginning of the close Bench-Bar relationship that existed at that time, and which is still enjoyed between the members of Bar and the members of the Bench in Santa Clara County. It is an integral part of the fabric of our legal community.  I would like to express my sincere gratitude to Henry Rendler for sharing with us this unique insight into our professional antecedents.

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