Number of Elected California Lawyer-Legislators Increases Slightly

After falling to an all-time low during the last legislative session, the number of attorneys elected to the state Legislature crept back towards respectability on November 8.  With five more attorneys elected for the 2017-18 session than its predecessor, the total of 25 attorneys (20.83% of the Legislature) is more in keeping with the best totals since the 2007-08 session, and well above last session’s worst-in-California-history 16.67%

Most of the growth has been in the Assembly, which lost three lawyers (Democrats Luis Alejo and Mike Gatto and Republican Don Wagner) to term limits, but gained seven, for a net of four.  This brings the house total to 17 of 80 (21.25%), which is the highest number of attorneys in the lower house since 2008.

Two of the newly-elected Assembly lawyer-legislators are returnees:  Former prosecutor Al Muratsuchi reclaimed the 68th AD seat he lost in 2014 to Republican David Hadley, and former Assemblymember Anna Caballero returns to the Monterey County seat (now 30th AD) that she surrendered to become Jerry Brown’s Secretary of the Business, Consumer Services and Housing Agency in 2011.

The new Assembly lawyer-legislators are:

  • Kevin Kiley (Republican, 6th AD, replacing termed out Beth Gaines) – former litigator with Irell & Manella and Deputy Attorney General.
  • Marc Berman (Democrat, 24th AD, replacing termed out Rich Gordon) – practiced with Latham & Watkins LLP and Merino Yebri, LLP.
  • Ash Kalra (Democrat, 27th AD, replacing termed out Nora Campos) – former Santa Clara County Deputy Public Defenders for 11 years.
  • Jordan Cunningham (Republican, 35th AD, replacing termed out Katcho Achadjian) – formerly an attorney in the Commercial Litigation Section of the U.S. Department of Justice and Deputy District Attorney for San Luis Obispo County. Currently practicing with his wife, Shauna, as the Cunningham Law Group, handling criminal and civil cases.
  • Eloise Reyes (Democrat, 47th AD, beat Democratic incumbent Cheryl Brown) – Owner of Law Offices of Eloise Gomez Reyes, focusing on labor and workers compensation law.

The newly-elected lawyer-lawmakers join 10 colleagues: Democrats Ken Cooley (8th AD), David Chiu (17th AD), Rob Bonta (18th AD), Mark Stone (29th AD), Ed Chau (40th AD), Richard Bloom (50th AD), and Lorena Gonzalez (80th AD), and Republicans James Gallagher (3rd AD, Catharine Baker (16th AD), and Brian Maienschein (77th AD).  Overall, the partisan split among the lawyer-legislators is 12 Democrats and 5 Republicans.

The change in the Senate was less significant, but still positive.  Only one lawyer-lawmaker (Marty Block of San Diego) left to pursue other interests, while two new ones were elected.  The result is a net gain of one lawyer, bringing the Senate total to eight (20%).  That’s still the second-lowest total in California’s history, but better than last year’s worst-ever seven.

The new Senate lawyer-legislators are:

  • Scott Wiener (Democrat, 11th SD, replacing termed out Mark Leno) – San Francisco Deputy City Attorney, previously with Heller Ehrman White & McAuliffe.
  • Henry Stern (Democrat, 27th SD, replacing termed out Fran Pavley) – practiced environmental law as an associate with Van Ness Feldman following a legal externship with the House Energy and Commerce Committee before becoming one of Senator Pavley’s top aides.

The new attorney Senators will join the current group of six:  Bob Wieckowski (10th SD), Bill Monning (17th SD), Bob Hertzberg (18th SD), Hannah-Beth Jackson (19th SD), Ben Allen (26th SD), and Richard Roth (31st SD).  For the third session in a row, there are no Republican lawyer-lawmakers in the state Senate.  The last Republican lawyer-lawmaker Senator was Tom Harman, who was termed out in 2012.

Overall, Republican attorneys hold only five of the 120 legislative seats (4%), compared to 32.5% overall, while Democratic lawyers constitute a more robust 16.7% (20 of 120 members), compared to 67.5% overall.

Session Assembly Lawyers A% Senate Lawyers S% Total Lawyers in Both Houses T%
1971-72 56 46.67%
1979-80 22 27.50% 16 40.00% 38 31.67%
1989-90 17 21.25% 19 47.50% 36 30.00%
2001-02 18 22.50% 15 37.50% 33 27.50%
2007-08 18 22.50% 10 25.00% 28 23.33%
2009-10 16 20.00% 9 22.50% 25 20.83%
2011-12 15 18.75% 9 22.50% 24 20.00%
2013-14 15 18.75% 11 27.50% 26 21.67%
2015-16 13 16.25% 7 17.50% 20 16.67%
2017-18 17 21.25% 8 20.00% 25 20.83%

Lawyer-Legislators Reach Historic Low

We’ve all heard that last Tuesday’s election set one negative record: Lowest voter turnout ever in a California statewide election. But there was another negative record set Tuesday which has received no play, but which concerns some of us as much as the first: The number of attorneys elected to the California Legislature also hit an all-time low, probably in the history of the state.

Of course, whether a lower number of attorneys in the Legislature is a bad thing is a matter of perspective. But for those of us who believe that an in-the-trenches understanding of how the law is applied and misapplied, and the operation of our system of justice, is a good thing, the continuing decline in the number of attorneys serving in the Legislature over the years is not a good thing at all.

Although the election day totals could change the results in a couple of races once all the remaining absentee and provisional ballots are counted, the number of lawyer-lawmakers plummeted below its previous low of 20% by nearly three percentage points: 16.67%. Only 13 Assemblymembers and seven Senators are current members of the State Bar – active or inactive. The previous low was 24 set in the 2011-12 session. In contrast, during the 1971-72 session, nearly half (56, or 46.67%) of the state’s lawmakers were formally trained the law.

Session Assembly Lawyers A% Senate Lawyers S% Total Lawyers in Both Houses T%
1971-72 56 46.67%
1979-80 22 27.50% 16 40.00% 38 31.67%
1989-90 17 21.25% 19 47.50% 36 30.00%
2001-02 18 22.50% 15 37.50% 33 27.50%
2007-08 18 22.50% 10 25.00% 28 23.33%
2009-10 16 20.00% 9 22.50% 25 28.83%
2011-12 15 18.75% 9 22.50% 24 20.00%
2013-14 15 18.75% 11 27.50% 26 21.67%
2015-16 13 16.25% 7 17.50% 20 16.67%

Thirteen of the current crop of attorney lawmakers reside in the state Assembly, down from 15 in the prior session. Three of the former attorney lawmakers left of their own accord: Bob Wieckowski (D-Fremont), elected to the state Senate seat vacated by termed-out attorney Ellen Corbett; Roger Dickinson (D-Sacramento), who tried and failed to assume the seat vacated by termed out attorney and Senate President pro Tem Darrell Steinberg; and Jeff Gorell (R-Camarillo), who is locked in a tight battle for a Congressional seat.

The departure of two other Assemblymember attorneys came as more or less of a surprise, however. Less of a surprise was the defeat of Steve Fox (D-Palmdale), who was a surprise winner in 2012 in a heavily Republican district and couldn’t pull off a repeat. A greater surprise was the apparent narrow defeat of fellow first-term lawmaker Al Muratsuchi (D-Torrance), a former state deputy attorney general, by Republican investment banker David Hadley.

Three new attorney lawmakers were elected – or apparently so – November 5. Deputy district attorney David Chiu held a 3,700 vote lead over deputy city attorney David Campos in a Democrat v. Democrat, lawyer-on-lawyer battle for San Francisco’s 17th AD and appears to have emerged victorious. Republican James Gallagher, an agricultural business lawyer from Yuba City, was a runaway victor in the 3rd AD. And in one of the night’s big surprises, Republican Catharine Baker, Of Counsel to Hoge Fenton Jones & Appel, held a 3,300 vote lead in the East Bay’s 16th AD over Democratic union organizer Tim Sbranti and appeared to have victory in hand. (There was also a chance that Republican family and probate law attorney Rita Topalian could overcome a 1,400 vote election-day deficit and defeat Democratic incumbent Ian Calderon in the 57th AD, though the nature of the district renders this unlikely.)

Chiu will join Ken Cooley (Rancho Cordova), Rob Bonta (Oakland), Mark Stone (Santa Cruz), Luis Alejo (Salinas), Mike Gatto (Burbank), Ed Chau (Monterey Park), Richard Bloom (Santa Monica), and Lorena Gonzalez (San Diego) as attorney lawmakers on the Democratic side of the aisle, while Gallagher and Baker will join fellow Republicans Don Wagner (Tustin) and Brian Maienschein (San Diego). The 9-4 partisan split pretty much matches the proportional makeup of the Assembly as a whole.

While the change in attorney membership in the Assembly was slight, however, the change in the state Senate is profound. Where the upper house momentarily boasted 11 attorney members at the beginning of the last session (Juan Vargas of San Diego left almost immediately to assume a seat in Congress), there will be only seven at the start of 2015-16. And all of them will be Democrats.

In addition to Steinberg and Corbett, this election saw the departure of long-time attorney senators Lou Correa (D-Santa Ana, termed out), Ted Lieu (D-Long Beach, successful Congressional candidate), and Noreen Evans (D-Santa Rosa, returned to practice of law). Four veterans remain: Bill Monning (D-Santa Cruz), Hannah-Beth Jackson (D-Santa Barbara), Gen. Richard Roth (D-Riverside), and Marty Block (D-San Diego). They will be joined by Wieckowski, former Assembly Speaker Bob Hertzberg (D-Van Nuys) , and Ben Allen (D-Santa Monica), Of Counsel at Los Angeles’s Richardson and Patel, where his work focused on government/political affairs and litigation. Allen won his seat handily over well-known women’s rights attorney Sandra Fluke, and is the only true freshman in the group, since both Hertzberg and Wieckowski are moving to the Senate after extensive service in the Assembly.

This will be the second session in a row without a single Republican lawyer taking a seat when the Senate organizes. It is quite possible the string will be broken before more than a couple of months has passed, however, since Republican senator Mimi Walters was elected to a seat in Congress last Tuesday, and Assembly Judiciary Committee Vice-Chair Don Wagner is the early, very strong favorite to replace her in a special election that probably would be held in February or March of 2015.

Of course, the current legislative numbers are very fluid. In addition to Walters, two other sitting Senators, Democrat Mark DeSaulnier of Concord and Republican Steve Knight of Palmdale, both holding odd-numbered districts, and thus not up for election this year, were elected to Congressional seats and will have to resign from the Senate. Another Senate seat opened up just a month or so ago when Rod Wright was forced to resign upon conviction of voter fraud for designating a house he’d owned for twenty-plus years in his Senate district as his legal residence, rather than the house just outside the district in which he actually lived, though non-attorney  former Assemblymember Isadore Hall is pretty much a shoe-in to assume that seat.  Since Hall was termed-out this year, his vacated Assembly seat already has been filled.

We thus could see the turnover in as many as six Senate and Assembly seats before the new session is barely underway. Which could bring a few more lawyer-legislators, perhaps – though the prospects seem unlikely. In only three open seats in which an attorney took on a non-attorney did the attorney win, and two of those (Hertzberg and Wieckowski) involved de facto incumbents; the only truly open race won by an attorney (assuming the result holds) is Catharine Baker’s victory in the 16th AD. In contrast, in five open seat races where an attorney took on a non-attorney, the attorney lost – including some high-powered Democrat on Democrat battles (Kevin McCarty v. attorney Steve Cohn in Sacramento’s 9th AD, Tony Thurmond v. attorney Elizabeth Echols in the 16th AD, and pediatrician Richard Pan v. attorney Dickinson in Sacramento’s 6th SD). Add those to the (apparent) defeats of attorneys Fox and Muratsuchi, and it’s no wonder many attorney candidates for office don’t trumpet – and sometimes even hide – the fact. What should be a strong qualification, and even a badge of honor, now seems to be anything but.

Final CCBA Bill Signed for 2014

On the final day left to him under the California constitution, Governor Brown signed into law the last bill of 2014 containing resolutions from the Conference of California Bar Associations (CCBA).  AB 2747, an omnibus measure authored by the Democratic members of the Assembly Judiciary Committee, contained provisions enacting two CCBA resolutions and making important refinements in CCBA-sponsored legislation enacted last year.

The signing brings the final tally for 2014 to 13 bills and 16 resolutions signed into law.

Jerry Brown

Governor Brown

Although AB 2747 was an omnibus measure, it was not a bill that made only technical corrections; several provisions of the measure, including two of the CCBA-sponsored sections, made significant changes to the law.

The most significant of these changes revised and added several provisions of the Government Code (§§68631, 68631.5, and 68632) to reinstate the authority of the courts to base decisions to grant a fee waiver in cases regarding conservatorships or guardianships on the financial resources of the proposed conservatee or ward, not upon the resources of the person applying on the proposed conservatee or ward’s behalf.  This provision (CCBA Resolution 04-06-2012 by San Bernardino County Bar Association delegate Karin Horspool), increases access to justice and protects vulnerable people by encouraging family and friends to file conservatorships or guardianships for those in need. It was co-sponsored by Bet Tzedek Legal Services and Public Counsel.

A second CCBA–sponsored provision of the bill amends Probate Code §6401 to remove the specific reference to “surviving domestic partner” that became obsolete when spouses and domestic partners were guaranteed the same rights and responsibilities under California law with the enactment of  Family Code §297.5. This small but important change, developed by Sacramento County Bar Association delegate Mallory Lass (Resolution 07-02-2013), prevents surviving domestic partner’s from being denied an intestate share of any community or quasi-community property owned with the decedent.

The final CCBA-sponsored provision of the bill amends Evidence Code §§912 and 917 to add the lawyer referral service-client privilege established in law last year by AB 267 (Chau), a bill sponsored by the CCBA (Resolution 08-12-2012), to the lists of privileges that are waived upon disclosure by its holder (§912) and for which the communication claimed to be privileged is presumed to have been made in confidence (§917).

Governor Signs Four CCBA-Sponsored/Supported Public Safety Bills, Vetoes Election Reform Measure

Governor Brown has signed into law four measures sponsored or supported by the Conference of California Bar Associations (CCBA) increasing fairness and protection of the innocent in the criminal justice system over the past three days.  However, the Governor vetoed a measure supported by the CCBA to further increase transparency in the initiative process.  The signings bring to 12 the number of CCBA sponsored and supported bills signed into law in 2014.

Marie Waldron

Assemblymember Waldron

The first of the public safety measures signed was AB 1850 by Assemblymember Marie Waldron, which makes it possible to include children in domestic violence protective orders issued to protect DV victims before and during trial, if the child in question was present during the commission of the act of domestic violence.  The bill will allow criminal court judges to protect the entire family during the criminal proceedings instead of just one or a few members, thereby eliminating the problems that occur when an existing family court order requires the domestic violence victim to make her children, unprotected by the criminal order, available to the defendant for child visitation. AB 1850 was based on CCBA Resolution 07-01-2013, which was developed by former Los Angeles County Bar Association  (LACBA) delegate (now judge) Teresa Sullivan and current delegates Joseph Goldstein and Bea Dieringer.

Brian_Maienschein

Assemblymember Maienschein

The Governor also signed into law two bills to increase the penalty for human trafficking in minors – AB 1791 by Assemblymember Brian Maienschein, a bill sponsored by the CCBA, and SB 1388 by Senator Ted Lieu a related bill supported by the organization based on Resolution 09-11-2013 by Sonia Fernandes of the Women Lawyers of Sacramento. Together, the two bills will increase the penalty for knowingly soliciting a minor for prostitution, and will increase the maximum fine for placing a minor into prostitution or furnishing a minor to another person for sexual conduct from $20,000 to $25,000.  This takes an important step towards stopping the victimization of children by addressing the supply side of the prostitution and human trafficking equation.

Finally, the Governor signed into law AB 2492 by Assemblymember Reginald Jones-Sawyer, which eliminates the 90-day mandatory minimum sentence for a first or subsequent conviction for being under the influence of a controlled substance. The measure, based on two CCBA resolutions (Resolution 06-03-2012 developed by Monterey County Bar Association delegate Don Landis and Resolution 06-04-2012 developed by LACBA delegate Mark Harvis) will give courts more discretion to structure sentences to encourage drug treatment and reduce jail crowding.

Reginald Jones-Sawyer

Assemblymember Jones-Sawyer

The Governor vetoed AB 400 by Assemblymember Paul Fong, a bill supported by the CCBA based on its approval of Resolution 10-04-2013  sponsored by 10 CCBA delegates led by LACBA delegate Scott Luskin.  AB 400 would have required initiative proponents to include the identity of the top 10 donors to the campaign on the initiative petitions, so that voters would have this information when deciding whether or not to sign.  Governor Brown – who earlier signed legislation (SB 1253) which, among other things, would require this information to be placed on a web site maintained by the Secretary of State – objected to the potential cost of having to reprint petitions if the list of top 10 backers changed, but didn’t address the need for voters to have this information available when deciding whether or not to sign a petition, not simply when deciding how to vote.  Revised legislation is likely in the offing in the coming year.

According to Doyle

“According to Doyle” is a blog. It is intended to provide information and commentary on California legislation (particularly that sponsored by the Conference of California Bar Associations), ethical issues within the legal profession, and other things that might inspire.  It is no more an advertisement than any other blog; however, because I am an attorney and subject to California’s Rules of Professional Conduct, I ask all readers to please note that any recommendations and/or testimonials on this page or in any individual post are not meant to guarantee, predict, or warrant the outcome of any matter.

Lawyer Legislators Reach Historic Low

We’ve all heard that last Tuesday’s election set one negative record: Lowest voter turnout ever in a California statewide election. But there was another negative record set Tuesday which has received no play, but which concerns some of us as much as the first: The number of attorneys elected to the California Legislature also hit an all-time low, probably in the history of the state. (Read more)

Final CCBA Bill Signed for 2014

On the final day left to him under the California constitution, Governor Brown signed into law the last bill of 2014 containing resolutions from the Conference of California Bar Associations (CCBA).  AB 2747, an omnibus measure authored by the Democratic members of the Assembly Judiciary Committee, contained provisions enacting two CCBA resolutions and making important refinements in CCBA-sponsored legislation enacted last year. (Read more)

Governor Signs Four CCBA Public Safety Bills, Vetoes Election Reform Measure

Governor Brown has signed into law four measures sponsored or supported by the Conference of California Bar Associations (CCBA) increasing fairness and protection of the innocent in the criminal justice system over the past three days.  However, the Governor vetoed a measure supported by the CCBA to further increase transparency in the initiative process.  The signings bring to 12 the number of CCBA sponsored and supported bills signed into law in 2014. (Read more)

Photoshopping Lawyer – More Than Just Bad Advertising

It’s rare when a lawyer ethics story attracts the attention of the general press.  But it happened last week when the California Staphotoshoppinglawyer_screenshotte Bar Court proposed a six-month suspension for a Southern California lawyer who posted dozens of pictures – most (likely all) of them apparently fakes – on her firm web page showing  her in the company of dozens of celebrities, including President Obama, Hilary Clinton, Arnold Schwarzenegger – the list goes on.

The story started in the legal press, but has since been picked up by the Los Angeles Times, CNN, TMZ, the International Business Times, the UK Daily Mail – this list, too, goes on. (Read more)

Governor Signs Three CCBA-Sponsored Bills

Three bills sponsored by the Conference of California Bar Associations – AB 1738 by Assemblymember Ed Chau, AB 2104 by Assemblymember Lorena Gonzalez, and AB 2309 by Assemblymember Cheryl Brown – were signed into law by Governor Brown during the past three days.  The actions bring to eight the number of CCBA-sponsored or supported bills signed into law so far this year. (Read more)

CCBA-Inspired Rule of Court on Telephonic Appearances Adopted by Judicial Council

The Conference of California Bar Associations (CCBA) added yet another success to an already impressive year Friday (October 25, 2013), when the California Judicial Council unanimously approved a CCBA-inspired amendment to the Rules of Court (jc-20131025-itemA12) clarifying and expanding the types of court hearings at which attorneys may appear telephonically. The new amendments to the rules will take effect January 1, 2014. (Read more)

Governor Signs “Lawyer Dream” Bill

Governor Brown has signed into law legislation (AB 1024  by Assemblymember Lorena Gonzalez) that removes all doubt that undocumented immigrant Dreamers who pass the Bar Exam and meet the same moral character requirements as all other applicants can be admitted to the practice of law in California.

The bill responds to the case of Sergio C. Garcia (In re Sergio C. Garcia on Admission – S202512), the issue of whose admission to the Bar washeard on September 4 by the California Supreme Court.  Specifically, the bill is intended to ensure that California has on the books the law identified in Title 8, Section 1621(d) of the federal Personal Responsibility and Work Opportunity Reconciliation Act, which says that states can provide benefits (defined under subdivision (c) to include professional licenses) to undocumented immigrants if the state has enacted a law “which affirmatively provides for such eligibility.” (Read more)

 

Photoshopping Lawyer – More Than Just Bad Advertising

It’s rare when a lawyer ethics story attracts the attention of the general press.  But it happened last week when the California Staphotoshoppinglawyer_screenshotte Bar Court proposed a six-month suspension for a Southern California lawyer who posted dozens of pictures – most (likely all) of them apparently fakes – on her firm web page showing  her in the company of dozens of celebrities, including President Obama, Hilary Clinton, Arnold Schwarzenegger – the list goes on.

The story started in the legal press, but has since been picked up by the Los Angeles Times, CNN, TMZ, the International Business Times, the UK Daily Mail – this list, too, goes on.

The essence of the State Bar Court’s opinion is that attorney Svitlana Sangary engaged in “deceptive advertising” in violation of California Rule of Professional Conduct 1-400(D)(2).  The court stated that the “photographs were part of an advertisement and solicitation for future work, directed by Respondent to the public through her website, and they were false, deceptive, and tended to confuse, deceive, and mislead the public.” Though the original recommended sentence ultimately was doubled as a result of Sangary’s reported non-cooperation with the disciplinary process and her failure to return a client file.

All of the news stories – and even most of the expert commentary – have centered around Sangary’s apparent attempt to boost her professional reputation by showing herself in the company of the rich and powerful.  However, a more significant issue appears to lurk below the surface, based on the excerpts in the opinion of Sangary’s response to the charges against her.  Described as a “16-page soliloquy,” the response – if the quoted excerpts are even slightly representative – raises serious questions about the author’s mental state, let alone her ability to practice law. Which in turn raises the question, What – if anything – is to be done?

If California were one of the states following the Model Rules of Professional Conduct, the answer would be reasonably straightforward.  If an attorney becomes aware of conduct that violates a rule of professional conduct (including the duty to provide competent representation) in a way that “raises a substantial question as to that lawyer’s . .  fitness as a lawyer in other respects,” Model Rule 8.3(a) requires him or her to inform the appropriate professional authority. The requirement that a lawyer must “rat out” a colleague may seem harsh, but probably less so than letting an impaired attorney get deeper and deeper into problems, until the harm to all – including the client and even the lawyer – becomes irreparable.

California is not a Model Rule state, however.  We have our own Rules of Professional Conduct which differ in many ways from the Model Rules. And one of those ways is that we don’t have an analog for MRPC 8.3.  California does have rules and statutes which require a lawyer who violates rules of professional conduct to self-report.  Except that an impaired lawyer isn’t likely to recognize his or her self-impairment, which is a real problem in these cases.

In this instance, the Bar is well aware of the situation, and hopefully is poised to do the right thing.

 

Governor Signs Three CCBA-Sponsored Bills

Three bills sponsored by the Conference of California Bar Associations – AB 1738 by Assemblymember Ed Chau, AB 2104 by Assemblymember Lorena Gonzalez, and AB 2309 by Assemblymember Cheryl Brown – were signed into law by Governor Brown during the past three days.  The actions bring to eight the number of CCBA-sponsored or supported bills signed into law so far this year.

Assemblymember Chau

Assemblymember Chau

AB 1738 would specifically permit homeowners in a common interest development to bring someone to assist them in an Internal Dispute Resolution (IDR) negotiation with representatives of the homeowners’ association (HOA).  The bill responds to abuses of the process by some HOAs, which have prohibited homeowners from bringing their attorney or other helper to an IDR session – while at the same time bringing several board members well-versed in association law, and even the association’s attorney.

The bill is based on Resolution 02-03-2012 by CCBA delegate Daryl Miller out of the Orange County Bar Association delegation.  It was supported by homeowners’ organizations and seniors groups, and opposed by organizations and law firms representing HOAs, which mounted a major – but ultimately unsuccessful – effort to obtain a gubernatorial veto.

Lorena Gonzalez

Assemblymember Gonzalez

AB 2104 reinforces and strengthens the law preventing common interest development homeowner associations (HOAs) from penalizing homeowners for replacing water-hungry lawns with aesthetic, drought-tolerant landscaping.  The bill is based on CCBA Resolution LF-02-2013 by Contra Costa County Bar Association delegate Steve Steinberg.  It was supported by numerous environmental, real estate, business and consumer organizations.

As Assemblymember Gonzalez noted in her press release on the bill’s signing: “Brown is beautiful, and around the state HOAs are penalizing good-intentioned homeowners who replace their lush, water-intensive lawns with attractive, well-designed landscaping centered around drought-resistant plants. Allowing homeowners the freedom to use conservation-friendly landscaping is one important ingredient in reaching our goal of protecting our economy by saving water.”

Cheryl Brown

Assemblymember Brown

AB 2309 would make persons convicted of misdemeanor/infraction possession of benzodiazepine drugs such as Xanax, Valium, and Ativan, eligible to participate in deferred entry of judgment (DEJ) programs, the same as individuals convicted of felonies involving far more serious drugs, such as the possession of heroin, cocaine, and methamphetamine.  The bill was based on Resolution 03-03-2011 by Monterey County Bar Association delegate Don Landis, and received support across the board from groups as diverse as the California District Attorneys Association, California Public Defenders Association, California Narcotics Officers Association, and California Attorneys for Criminal Justice.

“Prescription drug abuse is a serious problem across the nation,” said Assemblymember Brown in a press release. “In California, we have a large population of offenders who have been incarcerated for prescription drug related offenses. In 2000, when voters passed Prop 36, drug diversion programs were not available for prescription drug users. By amending the law to include simple possession of specific benzodiazepines, we can help alleviate some of the backlogs in the courts and provide relief in our overcrowded prison system.”

 

CCBA-Inspired Rule of Court on Telephonic Appearances Adopted by Judicial Council

The Conference of California Bar Associations (CCBA) added yet another success to an already impressive year Friday (October 25), when the California Judicial Council unanimously approved a CCBA-inspired amendment to the Rules of Court (jc-20131025-itemA12) clarifying and expanding the types of court hearings at which attorneys may appear telephonically. The new amendments to the rules will take effect January 1, 2014.

Specifically the rule changes:

  • Clarify that the hearings, conferences, and proceedings at which a party may appear by telephone include all civil conferences, hearings, and proceedings except those expressly listed as requiring personal appearances;
  • Shorten the time for notice of such appearances from three to two court days, and amend references in the rule regarding timeliness to reflect that change;
  • Add ex parte applications to the types of proceedings at which a party may appear by telephone; and
  • • Clarify that a court should grant leave to appear by telephone on shortened notice if good cause exists.
Don_Wagner

Assemblymember Wagner

The amended rules are the outgrowth of CCBA Resolution 07-05-2010, developed by CCBA delegate Jason Turner and sponsored by the Orange County Bar Association. That resolution was introduced in the California Legislature in 2012 by Assemblymember Don Wagner, Vice-Chair of the Assembly Judiciary Committee, as AB 1582, which was intended to address serious problems in the implementation of 2007 legislation (AB 500 – Lieu) which had been enacted to increase and provide uniformity in telephonic appearance practices in the state’s courts. AB 1582 would have expanded the list of specific instances – including ex parte hearings – in which telephonic appearances could be made, and clarified other provisions of the law. Most importantly, it would have made clear that telephone appearances are to be permitted unless the judge decides in a specific instance that personal appearance is required.

Jason Turner

Jason Turner

At the request of the Chief Justice and other repres entatives and the judicial branch, Assemblymember Wagner and the sponsoring CCBA agreed not to move forward with AB 1582, and instead to permit the Judicial Council to create a task force (including a CCBA representative) to review the problems and address them through amendment to the Rules of court. The Telephonic Appearances Working Group was organized in July 2012, with representatives from the Judicial Council’s Civil and Small Claims Advisory Committee , the CCBA, Consumer Attorneys of California, California Defense Counsel, California Judges Association, Court Executives Advisory Committee, and Trial Court Presiding Judges Advisory Committee.

It is the hope of all concerned that the revised rules will address the concerns about lack of clarify in and inconsistent application of the law relating to telephonic appearances, which produced CCBA Resolution 07-05-2010 in the first place – and will provide the additional benefit of reducing unneeded court appearances and related travel, to the benefit of clients, attorneys, the environment and the courts.

Governor Signs “Lawyer Dream” Bill

Governor Brown has signed into law legislation (AB 1024  by Assemblymember Lorena Gonzalez) that removes all doubt that undocumented immigrant Dreamers who pass the Bar Exam and meet the same moral character requirements as all other applicants can be admitted to the practice of law in California.

The bill responds to the case of Sergio C. Garcia (In re Sergio C. Garcia on Admission – S202512), the issue of whose admission to the Bar was heard on September 4 by the California Supreme Court.  Specifically, the bill is intended to ensure that California has on the books the law identified in Title 8, Section 1621(d) of the federal Personal Responsibility and Work Opportunity Reconciliation Act, which says that states can provide benefits (defined under subdivision (c) to include professional licenses) to undocumented immigrants if the state has enacted a law “which affirmatively provides for such eligibility.” Many respected entities and individuals, including the State Bar and Attorney General, have argued that California already has such a law and/or that Title 8, Section 1621 doesn’t apply because the California Supreme Court is not an “agency” within the meaning of the statute. But the Supreme Court Justices clearly indicated at the September 4 hearing that they would feel more comfortable if there was a specific law on the books, and the Legislature has complied.

It is uncertain what impact this bill, if signed, would have on Mr. Garcia’s case, since the case has already been argued and the decision is expected before the bill takes effect on 1/1/2014.  It  would have been nice had AB 1024 been an urgency measure, but the measure was created (by stripping the previous contents of AB 1024 and inserting the current language) and approved by the Legislature in only a couple of days before the end of the current legislative year, and few could predict that strong bipartisan support the bill received.  The measure passed the Assembly on a vote of 62-4, with both Democrats and Republicans speaking in favor of the bill and even the opponents saying what a deserving, admirable candidate Mr. Garcia is. The fact that Mr. Garcia was approved for a Green Card in 1996, but will not actually receive it until 2019 (23 years later) under current immigration policy played a major role in helping the Assembly realize the fairness of AB 1024.

Hopefully the enactment will, at minimum, assuage the Justices’ concerns, and possibly convey the Legislature’s intent clearly enough to the Court to permit Mr. Garcia’s admission. If not, this bill clearly will remove any impediment for a subsequent “Dreamer” to achieve his or her ambition of becoming a lawyer in California.

AB 1024 gives to students who have graduated from college, graduated from law school, passed the Multistate Professional Responsibility test, and received a positive moral character determination from the Committee of Bar Examiners – a true challenge under the current circumstances (as are all the aforementioned) – the chance to realize the dream of becoming a lawyer and fighting for justice.