The e-magazine of the Solo and Small Firm Section of the California Lawyers Association
By Ritzel Starleigh Ngo
Dear Solo and Small Firm Section Members:
Spring is finally here! And as the trees and flowers are blossoming, we are pleased to announce reasons to get out of your offices!We have live programs and other opportunities, sponsored by our section, where we hope to meet you.
Outreach Events:We invite you to attend any or all of the events this month to meet members of our section and earn some MCLE credits:
Volunteer Opportunities:Our section has several subcommittees I want you to be aware of, so that you can join and participate and share your ideas. Thank you to our members who have reached out to me, and other members of our executive committee, with ideas to provide our section with feedback on how we can support your needs as a small law firm or a solo practice.
The subcommittees of the Solo and Small Firm Section, including a brief description and e-mail contact person, are as follows:
We look forward to your participation.
Please keep a look-out for our e-blasts and e-newsletters for details on future programs, including executive committee member visits to your local bar association, webinars, and committee updates.
We are looking forward to an active Spring and Summer.
All the best for your practice,
Due: May 15, 2018
The Solo and Small Firm Section of the California Lawyers Association is pleased to request nominations for the Solo and Small Firm Attorney of the Year Award. The award will be presented at the Solo and Small Firm Reception at the California Lawyers Association Annual Meeting held on September 14, 2018 in San Diego.
The Solo and Small Firm Section presents its Attorney of the Year Award to honor a solo or small firm attorney, who has demonstrated exemplary leadership and dedication to the legal profession, contributed to the betterment of the practice of law, and has devoted significant service to the public and legal community. If you know an attorney that meets these criteria, please nominate them!
Click Here for the Application Form
By Robert M. Klein, Esq., A Law Practice Devoted to Helping Personal Injury Victims
You need to set up a meeting with the client and after talking on the phone you realize your client cannot make the trip to your office. Or maybe you cannot make the trip to your client. You consider your options: do you send a car service to bring the client to your office? Do you send a substitute to your client’s residence or place of business for the meeting? Do you meet the client on a weekend? There is a simple alternative - a video conference (or video chat).
There many options for a video conference. My guess is almost everybody reading this article has used some form of video chat in the last year. One of the most commonly used products is FaceTime. How many grandparents with a grandchild living in another city has told you they see their grandchild several times a week through FaceTime? You can make this technology work for you too.
You don’t need much to get started using a videoconferencing platform. You need a video camera, an internet connection, and a program (platform or software) through which the call will be made.
Many computers come with a built-in video camera. The iPad or iPhone has a built-in video camera. If you are going to use video chat on a consistent basis, it is worth purchasing a web camera of better quality with a wide screen perspective and HD quality. Prices range from $25 on the low end to $75+ on the high-end. One advantage of purchasing an HD web camera is the ability to position it so it makes it easier to use. Rather than moving your entire laptop or cell phone or iPad, the camera is much smaller, lighter, and more flexible. Plus the camera will connect to your computer so the video screen will be larger than an iPhone or iPad.
The more difficult decision is deciding which platform to use for videoconferencing. I did a quick search and found many options including FaceTime, GoToMeeting, Cisco WebEx, Join.me, Microsoft Skype, Ring Central, Adobe Connect, Zoom, and Amazon Chime. The features, which vary between providers, include toll-free numbers, multinational toll-free numbers, the ability to use a white board during a call, the ability to use a desktop (computer screen), the ability to hold a private chat during a video conference, calendar integration, the ability to audio or video record, cloud storage, and operator assisted meetings. Almost all of these platforms offer a 30-day free trial. You should use the trial period to decide which features best suit your needs.
The significant advantage of videoconferencing is the cost savings. A lawyer or firm can eliminate the cost of airline flights, hotel rooms, renting meeting space, and travel time. Scheduling a videoconference is generally much easier because all involved can be in their own office or home. Another advantage of a videoconference over a conference call is the ability to see the faces of everybody on a call.
Another feature to consider when utilizing a videoconferencing platform is how the participants appear on the screen (the computer monitor). For example, are the participants aligned horizontally or aligned vertically? Does the person speaking become highlighted? Does the video freeze or is it fluid?
During your 30-day free trial, it is worth trying different platforms to see how they work. How easy is it to set up a meeting? How easy is it to connect to a meeting? Can the meeting be a lecture-style meeting in which participants are muted? Is there a feature for the participants to send in questions and will the lecturer provide answers? Can participants share a screen? For example, if you are meeting a new client and the client wants to show you a document will she be able to use her own computer screen so you can see what she is looking at? Another important feature is whether there is a support resource. And an important consideration: Almost all services will work on a PC, but not all will work on a Mac.
The monthly cost for videoconferencing services will range from $0 to approximately $30 per month. While $30 may seem like a lot of money, the annualized cost of $360 could be less than one hour of billable time. If such a service is utilized on a consistent basis, the cost savings are dramatic. Efficiency becomes even more cost-effective. The value is readily apparent. For a solo or small firm, videoconferencing is a wonderful way to stay and remain connected with the client.
One final note: I just read that Legal.com (connecting lawyers with potential clients) has hired a celebrity spokesperson who is none other than Lindsay Lohan. My, how the world of law has changed since the 1976 case of Bates v. State Bar of Arizona.
Posted on March 21, 2018 by Julie Brook, Esq., CEB
Reprinted by permission.
Although most attorneys never get involved with probate administration outside the United States, you might encounter practical problems if your client, who’s a California domiciliary, dies abroad.
The first thing to do when a U.S. citizen dies in a foreign country is to contact the U.S. Department of State or the American consulate of the country in which the death occurred. This is for a few very practical reasons:
1. U.S. consul acts as conservator. Until a U.S. representative or family member is located, the U.S. consul acts as provisional conservator of the decedent’s personal estate. He or she has limited authority to take possession of the decedent’s personal effects, including convertible assets, jewelry, nonnegotiable instruments, and personal documents. He or she may also take into possession bank books (but not bank accounts) in foreign countries. 22 USC §2715c; 22 CFR §72.13.
2. U.S. consulate office has necessary documents for beginning probate proceedings in the United States. On request and payment of costs, the personnel at the consulate office will forward notarized copies of death certificates issued in the country in which the death occurred. In addition, they’ll issue a Consular Report of Death of a U.S. Citizen Abroad, which is a death record in English that may be used to begin probate proceedings in the United States. Check the U.S. Department of State website for information on this and other consular assistance, and to locate the nearest consulate.
3. U.S. consulate office will know local procedures. The procedures in foreign countries are often very different from those in the United States. Even routine matters can become complex. For example, in parts of Western Europe, a certified copy of California letters testamentary is insufficient; the current certified letters must also carry an Apostille (see Hague Convention of Oct. 5, 1961, 33 UST 883) issued by the California Secretary of State’s Office attesting to the authenticity of the county clerk’s certification under the seal of the Office of the Secretary of State.
Once you’ve obtained the necessary documents, you’ll proceed with probate of the decedent’s estate in the United States. For step-by-step guidance through the probate process, turn to CEB’s Action Guide Handling a Probate and get comprehensive, in-depth coverage (including forms) of probate practice and procedures in CEB’s California Decedent Estate Practice. On authenticating foreign documents (Apostille), see CEB’s California Probate Workflow Manual Revised §21.5
Sole practitioners and telecommuters have something in common – they may feel lonely. Is there a downside to this?
Yes. According to a recent study reported in the Harvard Business Review, “ [L]oneliness threatens not only our physical health and well-being, but also our livelihood. . . Research shows that loneliness has the same effect as 15 cigarettes a day in terms of health care outcomes and health care costs.” One of the most interesting—and troubling—results from the study is the following: “In a breakdown of loneliness and social support rates by profession, legal practice was the loneliest kind of work, followed by engineering and science.” S. Achor, G. Rosen Kellerman, A. Reece, & A. Robichaux, “America’s Loneliest Workers,” Harvard Business Review, March 19, 2018. So, if you sometimes feel lonely in your job, you are not alone. This study demonstrates the need for lawyers to build strong support networks. So join us!
“Question of the Month” is a new addition to the ePractitioner. We encourage members to forward their questions—about their practice or about the law—to the section and we will endeavor to provide answers. Submit questions to email@example.com
By Steven L. Krongold
Partnerships—Dissolution—Property Interest in Hourly Cases
Heller Ehrman LLP v. Davis Wright Tremaine LLP, S236208 (Cal., 3/5/2018)
Resolving a question posed by the Ninth Circuit, the Supreme Court held that a partnership has no property interest in legal matters pending at the time the firm is dissolved, when the firm was retained on an hourly basis. Based on this decision, partners of dissolved law firms are free to take pending hourly cases to their new firms without fear of being sued for disgorgement, for breach of fiduciary duty, or for an accounting of profits. The case arose from the breakup and eventual bankruptcy of Heller Ehrman following the financial crisis of 2008. The bankruptcy trustee sued the new firms who employed former Heller partners to recover profits generated by work on the hourly fee matters. The Court first noted that a property interest requires a “legitimate, objectively reasonable assurance rather than a mere unilaterally-held presumption.” A law firm performing hourly work lacks such an interest because a client may discharge an attorney at any time and for any reason. When it was a going concern, Heller “no doubt hoped to continue working on the unfinished hourly fee matters and expected to receive compensation for its future work. But such hopes were speculative, given the client’s right to terminate counsel at any time . . . . Dissolution does not change that fact, as dissolving does not place a firm in the position to claim a property interest in work it has not performed—work that would not give rise to a property interest if the firm were still a going concern.” A contrary rule was not justified to prevent competition among partners. The Revised Uniform Partnership Act “makes clear that the duty to refrain from competing with the partnership only pertains to the period before dissolution.” (Emphasis original, citing Corp. Code, § 16404, subd. (b)(3).) “When partners know they may freely compete after a firm dissolves, they have less reason to compete during the life of the partnership.” Based on this holding, the former partner has no duty to account because no partnership property or information is at stake.
Insurance Bad-Faith—Improper and Prejudicial Invocation of Right to Silence
Victaulic Co. vs. American Home Assurance Co., A146617 (1st Dist., 2/26/18)
Nancy Finberg, claims examiner in a bad-faith action against AIG, had verified RFAs. She was grilled by Victaulic’s counsel, and by the trial court, on the denials. The court abruptly halted the second round of cross for an in-chambers conference where the court concluded that Finberg had “made an admission that she perjured herself.” Finberg’s testimony was stopped at that point, and when she resumed the stand the next day, represented by personal counsel, the court ruled that she could claim the Fifth Amendment privilege against self-incrimination on a blanket basis, and would do so in front of the jury. Following that, Finberg was excused. But her testimony remained in the case. In addition, the trial court allowed this question of Victaulic’s chief legal officer: “Q: [W]hen you heard Ms. Finberg tell us that she lied on the request for admission, what impact, if any, did that have on you?” Over objection, Van De Voorde replied, “I’m both personally and professionally shocked and disgusted. . . . [W]e’re here as a result of what I would consider to be some pretty egregious and malicious conduct by AIG.” In closing arguments, Victaulic repeatedly referenced the “lies” and “perjury” of Finberg. Counsel asked whether this type of conduct complies with community standards of decency, fairness or reasonableness, or is it just subterfuge or evasion, and suggested “this type of despicable conduct . . . screams out bad faith . . . that cause[d] Victaulic to incur more than $10 million in fees to get here today before you.” Following a three and one-half week trial, the jury deliberated for some five hours, returning a verdict for $1 million compensatory, $8 million attorney’s fees, and $46 million punitive damages.
In reversing the judgment, first, the Court ruled it was error for the trial court to allow questions about the denials of RFAs, citing Gonsalves v. Li (2015) 232 Cal.App.4th 1406. The denials represented legal strategy, not admissions of fact; hence, they could not be used as evidence at trial. (See Code Civ. Proc., § 2033.410.) Second, although the trial court has the power to examine witnesses, Evid. Code, § 765, subd. (a), it cannot “become an advocate for either party or cast aspersions . . . upon a witness.” The trial court violated these principles when it “openly mocked Finberg on the stand.” Third, it was error for the trial court to allow Finberg to invoke the privilege on a blanket basis. Finberg could invoke the privilege only as to testimony that would furnish a “link in the chain” of a perjury charge. Fourth, it was error for the trial to have Finberg invoke the privilege in front of the jury because it encourages inappropriate speculation on the part of jurors about the reasons for the invocation. This conduct was a violation of Evidence Code section 913. Finally, it was error to allow counsel during closing arguments to focus on Finberg and to suggest she lied or perjured herself as managing agent of AIG.
Anti-SLAPP Motion – Scope of Protection: Pre-litigation Activity
Bel Air Internet, LLC vs. Morales, B270268 (2nd Dist., 2/26/18)
Bel Air Internet alleged that defendants encouraged fellow employees to quit and sue the company for employment violations, rather than sign a release of such claims. Bel Air sued for intentional interference with contract, and related claims. Defendants filed an anti-SLAPP motion supported by declarations denying they engaged in any wrongful conduct. The trial court denied the motion on grounds defendants did not meet first prong. Reversed. The anti-SLAPP statute is triggered when plaintiff’s claims arise from an act “in furtherance of the person’s right of petition or free speech.” (C.C.P. § 425.16, subd. (b)(1).) While section 425.16 requires a court to consider both the “pleadings” and the “supporting and opposing affidavits stating the facts upon which the liability or defense is based,” it does not require a moving party to submit declarations confirming the factual basis for the plaintiff’s claims. Instead, a moving party can rely merely on the allegations set forth in the complaint. To hold otherwise, a defendant who disputes the plaintiff’s allegations (as defendants did here) might be precluded from bringing an anti-SLAPP motion, “which would have the perverse effect of making anti-SLAPP relief unavailable when a plaintiff alleges a baseless claim, which is precisely the kind of claim that section 425.16 was intended to address. The complaint alleged facts falling within first amendment activity. The Supreme Court explained that communications “preparatory to or in anticipation of the bringing of an action or other official proceeding” are within the scope of protected conduct. Conduct “preparatory to” litigation can include communications in connection with counseling or encouraging others to sue. Finally, the encouragement to sue was not merely incidental or collateral to plaintiff’s claims. The “alleged encouragement to sue was not a separate act that simply evidenced or led to [Defendants’] alleged inducement of a contract breach; it was an inseparable part of the alleged communication that formed the basis for Bel Air’s claims.”
Intentional Interference with Contract and with Prospective Economic Advantage
Redfearn v. Trader Joe’s Co., B270487 (2nd Dist., 2/27/18)
Unclean Hands Doctrine—Concealing Facts to Stall Case
DD Hair Lounge, LLC v. State Farm, B275388 (2d Dist., 3/2/18)
Under prior law, once a limited liability company filed a certificate of cancellation, it lost all rights and powers, including standing to sue. The legislature revised the law, effective 1/1/2016. Under the revised statute, a cancelled LLC retained its powers of “prosecuting and defending actions by or against it in order to collect and discharge obligations.” (Corp. Code, § 17707.06, subd. (a).) In DD Hair, the court applied § 17707.06 retroactively to LLCs existing, and acts undertaken, on or after January 1, 2014, the effective date of the Revised LLC Act. (Corp. Code, § 17713.04.) Therefore, an LLC that filed a certificate of cancellation on 11/5/14 would, under normal circumstances, retain standing to sue. However, that was not the case for plaintiff here. The court declined to confer standing retroactively because DD Hair had engaged in acts that constitute unclean hands. In particular, DD Hair had concealed the November 2014 certificate of cancellation from State Farm, and when discovered, falsely claimed that the certificate was forged. This position forced the trial court to hold an evidentiary hearing, which prolonged the case into 2016, after the statute was revised. Had DD Hair’s principal been forthright, the case would have been “swiftly dismissed and judgment entered” based on the law then in effect. The delays and denials allowed DD Hair to raise the standing argument. It would be unfair, the court held, to reward DD Hair’s behavior by retroactively applying section 17707.06 to revive its right to sue.
Litigation Privilege—Receipt of Client Emails
MMM Holdings, Inc. v. Reich, G053739 (4th Dist., 3/12/18)
Does the litigation privilege protect attorneys who receive emails and other records the client allegedly stole from a former employer? The answer is not clear because the court (1) assumed but did not decide that receipt of stolen property is unprotected; and (2) did not have sufficient evidence to establish illegality. The case arose from a qui tam action alleging Medicare fraud. The qui tam was filed by Jose Valdez, a former employee, who failed to return company-issued computers and the 26,000 electronic files and notes they contained. Unprivileged documents found in the electronic files were apparently used by his attorney, Marc Reich, to prepare the qui tam complaint. The employer filed suit, alleging that Reich “wrongfully took possession of documents, wrongfully disclosed the documents to third parties, and wrongfully refuses to return them.” The employer requested compensatory and punitive damages, disgorgement of all “improper benefits, profits and/or gains, and restitution,” and an order enjoining Reich from continuing to violate his ethical obligations as an attorney, from using the documents, and requiring immediate disclosure and return of the documents. Reich’s anti-SLAPP motion was granted, and affirmed on appeal. The Court assumed, but did not decide, that criminal activity may not be covered by the litigation privilege. However, plaintiffs failed to present a prima facie case that Reich knowingly received stolen property in violation of Penal Code, section 496, subd. (a). “The evidence here does not support the specific intent element of a theft offense by Valdez, much less demonstrate that Reich had knowledge that the elements of a theft offense had been committed by Valdez. Plaintiffs have not produced any evidence that Valdez intended to do anything with the documents other than to use them in litigation.” Plaintiffs tried to argue the litigation privilege did not apply. The Court distinguished cases in which plaintiffs were former clients suing attorneys or expert witnesses they retained. An adversary’s attorney does not owe an independent duty of care to the opposing parties.
128.7 Sanctions—Nonfrivolous Argument
Ponce v. Wells Fargo Bank, C080680 (3rd Dist., 3/13/18)
By signing, filing, or later advocating a pleading, motion, or similar paper, an attorney certifies that to the best of his or her knowledge, information, and belief, that (1) it is not being presented “primarily for an improper purpose, such as to harass or to cause unnecessary delay,” and (2) the claims, defenses, and other legal contentions are “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law....” (Civ. Proc. Code, § 128.7, subd. (b).) Under § 128.7, can a nonfrivolous claim ever be asserted for an improper purpose? In Ponce, the court held “no.” Relying on Zaldivar v. City of Los Angeles (9th Cir. 1986) 780 F.2d 823, 828, overruled on other grounds by Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S. 384, 399, the court held that a nonfrivolous complaint can never violate § 128.7, even if it was filed for an improper purpose.
Plaintiffs were homeowners who defaulted on their Wells Fargo loan. They settled the eviction action by signing a release in exchange for $10,000 and the right to remain in the premises for two months. The released party was the owner that acquired title at a foreclosure sale, and its agents, including but not limited to “predecessors in interest.” The release covered the loan, the foreclosure action, and the unlawful detainer action. Plaintiffs then filed an action against Wells Fargo for misrepresentations concerning a loan modification under HAMP. Wells Fargo, as the original beneficiary of the deed of trust, only held a security interest in the property. The bank was not a party in the unlawful detainer action, did not participate in negotiating the release, and was not named in the document. Without expressing any opinion on the merits, the court conclude that a nonfrivolous argument can be made that Wells Fargo was not a “predecessor in interest” within the meaning of the release. Therefore, the trial court erred in granting the 128.7 motion, dismissing the complaint, and ordering payment of monetary sanctions on grounds the complaint was filed for an “improper purpose.”
Partnership Dissolution—Right to Profits of Pending Client Matters
Diamond v. Hogan Lovells US, LLP, 15-16326 (9th Cir., 2/27/18)
Howrey LLP, a law firm organized under D.C. law, faced significant financial difficulties following the economic crisis of 2008. The firm voted to dissolve in March 2011. The largest creditors forced the firm into bankruptcy. Partners left Howrey before and after dissolution and started to work for other law firms. In many instances, these former partners continued to work on client matters that were formerly Howrey business. The bankruptcy trustee brought adversary proceedings against firms that had hired Howrey partners and had profited from work done on client matters that had been started at Howrey (unfinished or pending business). The trustee argued that former partners had a fiduciary duty to account for such profits. The panel certified the following question, among others, to the D.C. Court of Appeals: “Under District of Columbia law what interest, if any, does a dissolved law firm have in profits earned on legal matters that were in progress but not completed at the time the law firm was dissolved, where the dissolved law firm had been retained to handle the matters on an hourly basis, and where those matters were completed at different pre-existing firms that hired partners of the dissolved firm post-dissolution?” This question is similar to the one certified to the California Supreme Court by another panel involving the dissolution of Heller Ehrman: “Under California law, what interest, if any, does a dissolved law firm have in legal matters that are in progress but not completed at the time the law firm is dissolved, when the dissolved law firm had been retained to handle the matters on an hourly basis?” Heller Ehrman LLP v. Davis Wright Tremaine LLP (In re Heller Ehrman LLP), 830 F.3d 964, 966 (9th Cir. 2016), req. granted Heller Ehrman LLP v. Davis Wright Tremaine LLP, 2016 Cal. LEXIS 7131 (Cal. 2016).
Copyright Infringement – Nike Air Jordon Logo
Rentmeester v. Nike, Inc., No. 15-35509 (9th Cir., 2/26/18)
Renowned photographer Jacobus Rentmeester took a photo of Michael Jordon dunking a basketball in a leaping pose inspired by ballet’s grand jeté. The photo appeared in Life magazine. Nike asked to borrow color transparencies of the photo, which Rentmeester provided for $150 under a limited license to use “for slide presentation only.” Nike then hired a photographer who created a similar image of Jordon dunking, and using that image, created the silhouette known around the world as the iconic “Jumpman” logo, which is used to market and sell billions of dollars worth of merchandise. Limiting damages to the past three years, Rentmeester sued for copyright infringement of the Nike photo and Jumpman logo. After “filtering out” the unprotectable elements of the work—primarily ideas and concepts, material in the public domain, and scènes à faire (stock or standard features that are commonly associated with the treatment of a given subject), the court held that Nike did not infringe the remaining protectable elements. Although the photo was entitled to broad protection, Nike did not copy Rentmeester’s creative selection and arrangement of photographic elements, i.e., not just the pose, but also the background, lighting, camera angle, timing, and shutter speed. See Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1074–75 (9th Cir. 2000). Instead, the court held, what Rentmeester’s photo and the Nike photo share are similarities in general ideas or concepts; thus, they are not substantially similar.
By Evie Jeang
Ideal Legal Group, Inc.
Los Angeles, CA
Last year’s landmark Supreme Court decision in Obergefell v. Hodges, which legalized same-sex marriage in all 50 states, was a tremendous equal rights victory for same-sex couples. It also naturally lead to an influx of same-sex couples looking to expand their families, often through surrogacy.
Make no mistake, as science has evolved, new doors have opened for couples seeking to have children through surrogacy. Yet surrogacy laws have struggled to keep up with the breakneck pace of these medical advances, and thus family law surrounding this relatively new field is ever-changing. (Case in point, surrogacy laws are not the same in all 50 states. In fact, states such as New York, Michigan, and Washington, D.C., still prohibit surrogacy.) It is crucial that same-sex couples considering surrogacy are armed with as much knowledge as possible before deciding where to find a surrogate and where to forge their surrogacy agreement.
Surrogacy Agreements in California
In California for example, surrogacy agreements must be in compliance with Section 7962 of the California Family Code, which states that the agreement must have: (1) The date on which the assisted reproduction agreement for gestational carriers was executed; (2) the persons from which the gametes originated, unless anonymously donated; (3) the identity of the intended parent or parents; (4) disclosure of how intended parents will cover medical expenses of the gestational carrier and of the newborn or newborns.
Same-sex couples seeking a surrogate should keep standard requirements while drafting a surrogacy agreement. LGBT couples must still be mindful to protect themselves from discrimination by explicitly stating their sexual orientation to avoid the pain of having a surrogate refuse to carry a child based upon their status as a same-sex couple.
A meticulously drafted and comprehensive surrogacy agreement is essential for same-sex couples in order to prevent disagreements down the line. In addition to the existing mandates of California family law, all surrogacy agreements need to clearly and expressly state that the intended parents will have moral, ethical, legal and contractual parental rights over the baby. Furthermore, surrogacy agreements should cover important matters including financial terms, reimbursements, and health insurance coverage.
Nonetheless, even with a well-crafted surrogacy agreement in place, breaches of these legally binding contracts do happen. One such example of a surrogacy agreement breach may be the intended parents refusing to pay the surrogate. A second example could be the surrogate terminating the pregnancy without consent.
Should one of the parties fail to honor the surrogacy agreement, the other party may decide to take legal action against the party who has defaulted on the agreement. However, because surrogacy remains an emerging area in family law, little case law exists directly relating to same-sex couples and surrogacy. Luckily, there are several influential cases appearing on the horizon.
Existing Surrogacy Case Law
In the notable case of Baby M in New Jersey in 1988, legal parentage of the child was in question when the surrogate refused to give custody of the child to the intended parents. The New Jersey court decided that the type of surrogacy—traditional or gestational—was the determinative factor of the child’s custody. The court would have invalidated the surrogacy agreement if the surrogacy had been traditional (surrogate had used her own eggs). On the other hand, the court would have issued pre-birth orders favoring the intended parents if the surrogacy had been gestational (surrogate did not use her own eggs). In this case, the surrogacy was traditional. Thus, the New Jersey court ruled in favor of the surrogate, recognizing her as the child’s legal mother.
In Johnson v. Calvert in 1990, the gestational surrogate in California refused to give custody of the child to the intended parents. The intended parents sued, and the California Court upheld their parental rights, ruling that the true mother of the child is the one who intends to create and raise the child, per the surrogacy agreement. Under the Parentage Act, a mother-child relationship can be established by a birth relationship or genetic relationship. In this case, intent was the determining factor since the surrogate mother was not genetically related to the surrogate child.
In Elisa B. v. Superior Court in 2005 in California, the Court ruled that in determining parentage, the man or woman who receives the child into his or her home and openly holds out the child as his or her natural child, is the natural parent. In this case, same-sex partners Elisa and Emily both agreed to become inseminated with a common sperm donor. They had three children together, one of which—the biological child of Emily—had Down Syndrome. When Elisa and Emily ended their relationship, parentage was at issue. Elisa had been the financial provider for the household, but after the relationship ended, she stopped providing financial support. The Supreme Court ruled that by receiving the children into her home, naming them, breast-feeding them, and claiming them as her dependents, Elisa was a legal parent and mandated her to pay child support.
The Future of Surrogacy Law
While the Supreme Court’s ruling is an undeniable victory for same-sex couples seeking equality, stigma surrounding surrogacy, for both same-sex and opposite-sex couples still remains, and many are still likely to denounce its practice. All the same, the discussion about surrogacy and parental rights is being drawn out of the shadows and into the light, thanks in part to celebrities including Elton John, Lucy Liu, Ricky Martin, and Tyra Banks who have been open about utilizing surrogacy to grow their families.
Just how surrogacy and its legal implications continue to evolve commensurate with the legalization of same-sex marriage remains to be seen in the coming years. Though it’s impossible to say for certain, it’s reasonable to expect that as surrogacy options become more widely available for same-sex couples, new conflicts may also arise. With the Supreme Court’s decision being so recent and very little relevant case law currently available in this area, it is hard to predict, just how much of an impact this historic ruling will have on LGBT couples seeking surrogacy in the future.
California Supreme Court: The California Supreme Court Committee on Judicial Ethics Opinions (CJEO) invites public comment on a draft opinion on whether a judge may give an educational presentation to a specialty bar association, such as a district attorney or public defender association. The deadline for comment is May 15.
Courts of Appeal: Confirmation hearings have been set for three Second and Sixth Appellate District appointees. The hearings will be held in Los Angeles on April 17th beginning at 1 p.m. in the Supreme Court Courtroom, Ronald Reagan State Office Building, 300 South Spring Street, Third Floor, North Tower.
Self-Help Funding: Courts are expanding services offered through “self-help” centers. Attorneys and other court staff in these centers do not give legal advice, but can help litigants fill out forms, and they host in-person workshops and provide referrals to other services, such as mediation. Gov. Jerry Brown’s proposed state budget would more than double the amount of funding from $11 million to $30 million this upcoming fiscal year. The budget increase, along with funding from other sources, would allow courts to increase the number of Californians they serve from 1.2 million to nearly 2 million each year, according to the Judicial Council.
Los Angeles: The Los Angeles Superior Court (LASC) has announced that the complex civil litigation program located at Central Civil West (CCW) Courthouse and some civil courtrooms at the Stanley Mosk Courthouse will relocate to the historic Spring Street Federal Courthouse, located at 312 N. Spring St., Los Angeles, in mid-April, with hearings set to begin April 16.
Kern: Effective April 2, 2018 mandatory electronic filing (E-File) will be required by all represented parties for all Limited Civil case types including Unlawful Detainers. Self-represented parties are not required to E-File but are encouraged.
Ventura: Effective March 15, 2018, the Fax Filing service will be discontinued and eDelivery, a service that will allow for the electronic submission of filing documents, will be available.
The State Bar of California notified members of the Bar last week that it intended to file a request with the California Supreme Court for approval of a proposed California Rule of Court regarding re-fingerprinting of attorneys. The change will allow the State Bar to obtain criminal record information in compliance with state law.
In the interim, the State Bar encourages attorneys to immediately notify the State Bar of any mandatory reportable actions. As a reminder, failure to report mandatory reportable actions in and of itself constitutes violations of various sections of the Business & Professions Code and may subject attorneys to disciplinary action.
The State Bar has posted FAQs on its website: http://www.calbar.ca.gov/Attorneys/Conduct-Discipline/Self-Reporting-FAQ
Mark your calendars for the inaugural California Lawyers Association Annual Meeting—a terrific opportunity to learn and to network. The CLA Annual Meeting will be held in San Diego this year:
Friday-Saturday, September 14-15, 2018
Sheraton San Diego Harbor Island
This event follows in the footprints of the Sections Convention of 2017, and more than 30 years participating in the Annual Meeting of The State Bar of California. In fact, this event will feature many of the events you associated in the past with the Bar’s Annual Meeting. The Solo and Small Firm Section hopes to see you there!
The Solo and Small Firm Section of the CLA is pleased to invite you to attend, “The Business of Law for Small Firms and the Solo Practitioner.” The program, which offers 4.0 Hours MCLE and Legal Specialization Credit, will be held on Friday, April 13, 2018, at Loyola Law School:
Loyola Law School ● Hall of the 80’s ● 919 Albany Street ● Los Angeles, CA 90015
Program topics include:
• Tax Issue for Lawyers under the Tax Cuts and Jobs Act: Do you Qualify?
• The Business of Being an Employer: Critical Issues in Employment Law to Run a Solo or Small Practice
• Client Centered Practice Management: Doing Better for Your Clients and Yourself Through Effective Practice Management
Click Here for More Info
When you pay your dues, don’t forget to renew your membership in the Solo and Small Firm Section. Section members are entitled to 6 free hours of MCLE specialty credits—this benefit alone pays for the cost of your membership!
The general rules for compliance follow:
• Active members of the State Bar are required to complete 25 hours of MCLE every three years.
• Members must fulfill at least one-half of their MCLE requirement with activities approved for “participatory” MCLE credit.
• The maximum number of hours of “self-study” is 12.5.
• Of the 25 hours, 6 hours must be completed in the following special categories, which may be completed as participatory or self-study credit:
Currently, the free programs may be found on the State Bar website under the “members only” page for the Solo and Small Firm Section.
A good source for low-cost webinars and self-study articles on an array of subjects is, “Continuing Legal Education (CLE) at Your Fingertips,” a catalog of MCLE options available on the CLA website (http://cla.legal/CLE-Events). Live programs, online CLE and webcasts, and self-study articles are all posted here, for your convenience.
“Spring is the time of plans and projects.” ~ Leo Tolstoy, Anna Karenina
“You cannot help someone get up a hill without getting closer to the top yourself.” ~ General H. Norman Schwarzkopf