After a year of chillin’ in this delightful location, Cal Law is moving to a flashier pad. Henceforth, you’ll find the Legal Pad blog at http://legalpad.typepad.com, where we hope to continue to bring you thrill-a-minute commentary on California’s legal community and items of interest — nay, fascination — to lawyers everywhere. This blog will stay right here as an archive of a year’s worth of posts, so if you bookmarked somethin’ special, it ain’t goin’ anywhere anytime soon. But drop by the new site and update your bookmarks, your RSS feed (we’re still working on that — it’s been a hell of a move, and everything is still in boxes …)

Thank you to all the readers who have spent time here. We hope to see you (and read your comments) at the new Legal Pad.

— Brian McDonough, blog editor

Larry Sonsini doesn’t like pretexting. He doesn’t even condone it, he told a congressional subcommittee probing Hewlett-Packard’s boardroom mess. In fact, he wants a law passed to prohibit it. (To help you kill your workday, C-SPAN’s running all the action from Capitol Hill live on its Web site.)

In a short opening statement, Sonsini condemned HP’s use of “pretexting,” or lying, to gain phone records of journalists and its own employees and directors in an investigation over boardroom leaks.

“It is probably illegal,” Sonsini told the committee. “We need to make it clearly illegal.”

That “we” is significant because, in e-mails between Sonsini and former HP Director Thomas Perkins published by various press outlets, the lead partner at Wilson Sonsini Goodrich & Rosati seemed to be one of those who thought the practice was legal.

After investigating HP’s problematic leak probe, Sonsini told Perkins, who resigned in protest of pretexting, that it was a “common investigatory method” and appeared to be legal.

Sonsini elaborated on that e-mail in answering questions. Apparently, according to what Sonsini told the committee, his investigation of whether HP’s probe was conducted illegally was limited to some phone calls to HP in-house lawyers — the very people who oversaw the investigation.

Sonsini said he asked HP General Counsel Ann Baskins and in-house lawyer Kevin Hunsaker — who was overseeing the probe — to find out if pretexting was OK. “I immediately turned to Ms. Baskins and Mr. Hunsaker,” he said.

And based on what they said, Sonsini responded to Perkins: “I said to him ‘this is what I’ve been told,’” and that it appeared to be “within the law.”

— Justin Scheck

It’s one thing to avoid going out of your way to avoid criticizing a major player in your constituency.

But Anna Eshoo took an extra step when she showed up at the House Subcommittee on Oversight and Investigations’ hearing on Hewlett-Packard. Eshoo — the Palo Alto Democrat, in whose district Hewlett-Packard sits — isn’t on the subcommittee, but as a member of the Committee on Energy and Commerce, she got permission to put her two cents in.

And those were two rather surprising cents: Eshoo became one of the few — and perhaps the only politician — to stand up for HP.

“The meaning of the words Palo Alto is tall tree, and that’s what HP has been,” Eshoo said, praising the foundations started by HP’s founders and their “countless, countless efforts that have made our region the envy of so many places.”

She went on to make the well-worn point that a Republican-led Congress is investigating HP’s surveillance mess at the same time it is considering the Bush administration’s legally questionable eavesdropping.

And then Eshoo asked her most puzzling question:”Where does a publicly traded company go when they have a board member who doesn’t stop talking,” and who “damages the company” with leaks?

HP, of course, has laid out a map of where not to go. But Eshoo’s question is puzzling because so far, no evidence has come out to show that the leaks by former board member George Keyworth damaged the company. Indeed, the CNet story that supposedly came out of the leaks quoted a confidential source, but did not divulge any substantive information that wasn’t already public.

— Justin Scheck

The House Energy and Commerce Committee’s hearing on Hewlett-Packard’s boardroom mess hadn’t even begun when one big question was answered: What would HP General Counsel Ann Baskins say, given that she — according to the company’s deposed chairwoman, Patricia Dunn — approved sketchy investigative methods to figure out who was leaking boardroom discussions.

The answer: not much.

In a Thursday morning letter from her attorneys, Berkeley-based Cristina Arguedas of Arguedas, Cassman & Headley and K. Lee Blalack of O’Melveny & Myers, Baskins announced that she “resigned her positions as Senior Vice President, General Counsel, and Secretary of Hewlett-Packard Company effective today.”

And, the lawyers added, “we also write to inform you that we have instructed Ms. Baskins to invoke her constitutional protection under the Fifth Amendment and, thus, Ms. Baskins will not provide testimony before the Subcommittee today.” (Keep watching for the letter; we’ll post a copy later this morning).

The lawyers also attached several internal HP e-mails, and part of an internal investigation conducted by Wilson Sonsini Goodrich & Rosati, that point to another in-house lawyer, Kevin Hunsaker — in addition to an outside attorney — whose advice Baskins relied on. They said that “pretexting,” or lying to gain someone’s private phone records, was legal.

That notion won’t go over well with the House committee, whose members, in their opening statements, criticized the attorneys.

“Where were the lawyers?” Rep. John Dingell asked in his opening statement, saying the company engaged in what was “probably criminal misbehavior” and “a plumbers’ operation that would make Richard Nixon blush if he were still alive.”

For more highlights of members’ speeches, see the Wired News blog 27B Stroke 6 or the Wall Street Journal’s Law Blog, which are both doing the blow-by-blow.

— Justin Scheck

No matter how well trial lawyers perform, they never get called for encores. David Rouda does.

Following his triumph last season at the San Francisco Fringe Festival, Rouda returns to the stage Sept. 7 to direct his second original play, “Pomp & Circumstance.”

Billed as a “comedic legal drama,” the performance revolves around Max, a prominent trial attorney in the twilight of his career, and his son Zack, a junior associate at the firm who is struggling to step out of his father’s shadow and make a name for himself.

If the subject matter seems like it might be personal to Rouda, that’s because it is. While writing the play, the 39-year-old personal injury lawyer drew on his own experience as the nephew of Ronald Rouda, a name partner at the firm Rouda, Feder, Tietjen & Zanobini who was once voted California Trial Lawyer of the Year.

“What would it be like to be the son of a man who has that big a center of gravity?” Rouda wondered, describing how he crafted his two leading roles.

While continuing his solo practice, Rouda ventured into the entertainment business a few years ago, teaming up with an agent and submitting scripts for TV dramas, including “Law & Order.” Success came more quickly in Rouda’s stage debut when, a year ago at the Fringe, he captured the Critics’ Award for a three-person production called Sperm Warfare.

This time around, Rouda brings a 15-member cast, including Oakland solo Rick Baskin.

“You can tell it’s written by a lawyer, because the courtroom scenes are very realistic,” Baskin said.

Realistic, eh? How often do you hear of cases involving Orthodox Jewish men who practice abstinence, yet sue for loss of consortium following a very personal injury induced by too much Viagra? (Didn’t think so.)

— Matthew Hirsch

The man accused — mostly by himself — of the 10-year-old murder of JonBenet Ramsey is worried about getting a fair trial given, among other things, the media circus triggered by his admission of involvement in the juvenile beauty queen’s death.

But San Francisco attorney Rachel Matteo-Boehm is fighting for even more coverage of the tabloid story of the summer — she’s trying to unseal records of John Mark Karr’s California child-porn arrest.

The defense worries that Karr’s potential jury pool could be compromised by any number of things. It could be the orange jail jumpsuit he had to wear to his extradition hearing in a Los Angeles County Superior Court today. Deputy Public Defender Haydeh Takasugi told the media that Karr was upset he couldn’t wear civilian clothing.

Then there are records in a Bay Area court dating back to 2001, when the suspect in the murder of 6-year-old JonBenet was a substitute teacher in Sonoma County.

In April 2001, Karr was arrested and charged with five misdemeanor counts of possession of child pornography. When he didn’t show up in court in December, a warrant was issued for his arrest. Those records were sealed — at the request of the Sonoma County sheriff — the same day Karr was arrested in Thailand on Aug. 16.

Media organizations have asked the judge to unseal the arrest warrant and other documents. But Karr’s lawyer, Public Defender John Abrahams, argued that opening them would compromise his client’s right to a fair trial. In a court document filed Aug. 24, Abrahams writes that “while there is a constitutional right of access to court records, a trial judge not only has the discretion, but the affirmative duty to encroach on that right if necessary to protect the accused’s right to a fair trial.”

Matteo-Boehm, a media lawyer with Holme Roberts & Owen, is slated to make the case in Sonoma County Superior Court on Tuesday for why those records should be available for public scrutiny. She’ll be representing media organizations including the Associated Press, NBC Universal Inc., ABC Inc. and The San Francisco Chronicle.

She said it’s a matter of the public’s, and the media’s, First Amendment right, supported by rulings from the U.S. Supreme Court and the California Supreme Court, to follow criminal proceedings. Not only that, there are strict procedures that need to be followed before records can be sealed, procedures that, in this case, she said were ignored.

“It is the contention of our client that the requirement for sealing these documents has not been met,” Matteo-Boehm said. “It’s a very strict test.”

Holme Roberts’ Roger Myers, who is likely to lead the case if it goes to appeal, said keeping records secret only raises suspicion that something is being kept from the public. “The only way for the public to feel the system is working is if it’s open, if the press can have access to the hearings,” Myers said. “The criminal justice system shouldn’t be like poker, where one side is trying to hide its cards.”

— Petra Pasternak

The odds that lawmakers will create 50 new judgeships just got a little longer. The Assembly missed a procedural deadline today for voting on the judge-creating bill, which means it now needs approval from two-thirds of the house — always a dicey proposition in the highly partisan Legislature.

The problem? Assembly Speaker Fabian Nuñez and Gov. Arnold Schwarzenegger are still squabbling over judicial picks. Nuñez, as you’ll recall, says the governor isn’t appointing enough minorities, and he won’t authorize more than 25 new bench positions until Schwarzenegger makes some changes.

What those changes might be is the $64 million question. Random thoughts from conversations around the Capitol: It’s no secret that Nuñez is not a big fan of judicial appointments adviser John Davies. But it’s unlikely the governor would give Davies the boot over the current dust-up. We might see Democrats shine a more critical light on the handful of secretive panels around the state that screen potential judges for Schwarzenegger. Or we could see changes in the application process that encourage more women and ethnic minorities to apply.

Or nothing may change in the Legislature’s last week of session. Nuñez’s greatest power right now might be his authority to say “no” to the governor.

 UPDATE: The Assembly took a procedural vote Thursday night that will allow the new-judges bill to pass with a simple majority vote. A deal on 50 judges appears in sight — again. Look for changes to the application that would-be judges complete. A new form may put less emphasis on trial experience in an attempt to attract a broader range of candidates.

— Cheryl Miller

Before State Bar governors on Saturday approved permanent disbarment for certain crimes or acts of misconduct, they had sought comments from the public.

Many of the sharpest written remarks in support came from within the legal profession. A few responses:

“Anything less allows a fraud or worse on the unsuspecting public and potential clients who are the only ones who should benefit from Bar rules and professional conduct standards.” — Beverly Hills attorney Martin Perlberger.

“The California Bar must act to address the public perception that all California lawyers are ‘crooked shysters.’” — San Diego lawyer Francis Tepedino.

“In cases where lawyers knowingly act unethically to the detriment of their clients, for their own personal gain, disbarment certainly should be forever.” — San Francisco attorney George Markell.

“It is outrageous, in this lawyer’s opinion, for a lawyer to be ‘disbarred’ and then reinstated. Former attorneys upon whom this penalty is imposed have no business getting back into the profession. If they do, they should be required to inform the public on business cards and/or letterhead that they are ‘formerly disbarred.’” — Burbank lawyer Howard Ekerling.

“Why should the Bar or the public have to take the risk that an attorney will not steal, forge, cheat or bribe again if reinstated?” — Stanwood, Wash., attorney John Edison.

“They have demonstrated they have no understanding of the huge public trust we all bear. This is not [an] ‘economic death sentence’ — there are still many employment opportunities in allied fields.” — Former Alameda County Superior Court Judge Roderic Duncan.

“This profession needs to be cleaned up. Right now lawyers are pretty low on the food chain. Being a lawyer and practicing law ought to be a privilege and not a right.” — Roseville attorney Thomas Couris.

“Sometimes I am actually ashamed to say I am a lawyer, yet it is my life’s work. Let’s clean up our act. Once you are out, you are out — FOR GOOD.” — Los Angeles lawyer Elta Wilson.

“I recognize that there are those who would argue they have been rehabilitated and they have changed their ways after being disbarred. To them I say, ‘Too bad. You blew it. You are an embarrassment. Get out and never come back.’” — Vacaville attorney Gregory Adler.

And among the nonlawyer viewpoints was this one by Daniel Powell, of Solana Beach: “Get rid of the jerks, permanently.”

— Mike McKee

With one signature Monday, Gov. Arnold Schwarzenegger killed two bills and a potential bevy of civil suits.

Schwarzenegger vetoed SB 1765, which would have allowed Mexican-Americans who were forcibly repatriated in the 1930s to sue for damages. Bill supporters say that Depression-era anti-immigrant anger led government agencies to force or coerce an estimated 400,000 Californians of Mexican descent to flee to Mexico. The move was also a loss — perhaps inadvertent — to victims of the Armenian Genocide.

In his veto message (.pdf), Schwarzenegger called the forced repatriation of Mexicans “a great injustice” but added “broadly drafted legislation that allows private litigation of potentially thousands of claims against the state, local governments, and private citizens is not the answer. It could burden the courts, result in increased and unplanned costs to the state, and may require a settlement account for any successful claim.”

The governor’s veto effectively killed a similar, more popular bill, SB 1524, that would have allowed Armenian Genocide victims and their families to sue to recover seized or looted assets. In an effort to improve their chances with the governor, authors of the two bills added poison-pill language that said if one bill failed, they both would die. And so they did, even though the governor hasn’t weighed in yet on SB 1524. No word on whether the double-bill death was Schwarzenegger’s intent.

The Consumer Attorneys of California were double losers Monday. The plaintiffs group backed both bills.

— Cheryl Miller

At today’s packed press conference, reporters ostensibly flocked to see U.S. Attorney Kevin Ryan announce the first charges in the stock options backdating scandal. But it didn’t take long to realize that many in attendance — particularly those accompanied by TV cameras — had a potential defendant in mind who was sexier (or at least more muscular) than any former Silicon Valley executive.

They all wanted to know about Barry Bonds, who’s being looked at for possibly lying to a grand jury investigating steroid use. The grand jury investigating Bonds, we know, was set to expire today. So many thought an indictment was in the works.

Alas, any such charge will have to come later, if at all, and from another grand jury, probably months down the road. When Ryan explained that in a brief prepared statement after the backdating announcement, he said any such decision will be have to wait for “another day.” Yet there was some doubt — he spoke quickly, and at least a couple of reporters heard “a day.” On the way out the door, Ryan’s spokesman could be seen trying to put the issue to rest ASAP.

– Justin Scheck