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

Brian Leubitz knows he doesn’t have much hope, but nevertheless is making a last-minute push to get William McGuiness voted off San Francisco’s First District Court of Appeal.

On his “No on McGuiness” Web site, Leubitz, a non-practicing lawyer and a blogger on Calitics.com, urges voters in the 12 counties served by the First District to reject McGuiness for authoring the Oct. 5 ruling against same-sex marriage.

McGuiness is up for retention.

Leubitz, who’s seeking a master’s degree in public policy from UC-Berkeley, compares the 2-1 ruling in In re Marriage Cases to Plessy v. Ferguson, the infamous 1896 U.S. Supreme Court ruling that required blacks to be segregated from whites on railroad cars.

“I think he’s very qualified,” Leubitz says of McGuiness on his Web site. “[But] that’s not the issue. William McGuiness made a terrible decision that says that separate but equal is jolly OK with the California Constitution. A decision that denies equality for a substantial segment of Californians. That is not OK.”

Leubitz says he believes the judiciary should be “completely independent” of the voters, but that a message needs to be sent. He notes that conservative voters yanked three state Supreme Court justices — including Chief Justice Rose Bird — off the bench in the mid ’80s over their position against the death penalty.

Conservatives in the mid ’90s tried, and failed, he noted, to remove two Republican justices, including Chief Justice Ronald George, after they voted to strike down a state law requiring parental notification when minors get abortions. It’s time for liberals to push back, Leubitz says.

“My involvement in this particular campaign really began when I opened my absentee ballot and realized that McGuiness was on the ballot,” Leubitz said in an e-mail to Cal Law.

“It was definitely a late start,” he added, “and likely won’t actually make a huge difference in terms of the actual election. But I’m trying to create some semblance of a pushback to the right-wing No campaigns [e.g. Ronald George in 1998]. I’m trying to spread the word about this election as much as possible.”

Leubitz’s idea isn’t without its appeal to many in San Francisco’s gay community. Word on the street has it that several gay voters either plan to vote against McGuiness’ retention or already have done so via absentee ballot.

Even the community’s outspoken newspaper, the Bay Area Reporter, advises in its editorial recommendations that all appeal court justices up for retention be retained — all, that is, except McGuiness.

Under a “send a message” caption, the B.A.R. says: “Those who are smarting from [the] appellate court ruling against same-sex marriage can send a message to one of the judges who decided the case by voting against his bid for another term.” It notes that McGuiness authored the ruling.

The newspaper’s and Leubitz’ efforts probably won’t succeed, but you can almost bet you’ll see McGuiness retained with a slightly lower margin than his comrades on the bench.

— Mike McKee

For Tamina Alon, the choices are clear. The 26-year-old Hastings student would much rather have her law books in one hand and her two little boys in her lap than juggle her parenting obligations and a 90-hour work week at a firm — which is why more law students seem to be having kids while they’re still in school.

The flip side, Alon said, is that you get the short end of the stick in interviewing for jobs. “They don’t want people with families,” the president of Parents at Hastings said. “They say: go to the government, they have nice 9-to-5 positions, you will do fine there.”

When she asks working attorneys how their family life is, she invariably gets two responses. “They are surprised,” she said. “Or I get laughter: ‘What family life?’ they ask.”

The advice Alon gets is to wait to get the job offer, then spring the news that you’re pregnant or a parent.

The strategy worked for Misti Groves, though she was surprised how accommodating everyone she dealt with was. Groves, 30 and a second-year Boalt Hall student, didn’t tell her potential employers this fall during on-campus interviews that she was pregnant. “No one asked me, and in most cases it was completely irrelevant to my interview,” she said. “Now all firms I’ve gotten offers from know I’m pregnant.”

Daniel Schacht faced the issue squarely. The 32-year-old looked only at family-oriented firms when he started considering post graduation work, and asked law firm partners point-blank during callback interviews how they dealt with family issues. His resume features his involvement with Parents at Boalt, where he is co-president, which helped weed out poor fits.

“I looked for their billable hour minimums and whether their pay was connected to a minimum billable hour requirement,” he said. Eighteen hundred seemed a reasonable cutoff, he added.

Also, he looked to see that a firm not only offered a part-time schedule, but that employed part-time attorneys. He found his match in Oakland’s Donahue Gallagher Woods, where he accepted a summer 2007 job.

— Petra Pasternak

Forget Dianne Feinstein. The real top of California’s Democratic ticket, at least according to the Field Poll released today, is attorney general candidate Jerry Brown.

The Oakland mayor holds a whopping 25 percentage-point lead over Republican challenger Chuck Poochigian. That’s a wider margin than Feinstein enjoys over her U.S. Senate race opponent, GOP state Sen. Richard Mountjoy. It’s also bigger than Democratic treasurer candidate Bill Lockyer’s lead over Claude Parrish, the Republican who’s run a notably stealthy campaign.

Brown’s support has jumped 11 points since July, thanks in part to TV ads portraying him as an experienced crime fighter. Poochigian hasn’t run a bad campaign. He’s raised a decent amount of money and hit Brown relentlessly for Oakland’s rising murder rate and a sexual harassment scandal involving the mayor’s former aide.

But Poochigian, like other state GOP candidates, has received no campaign help from fellow Republican Gov. Arnold Schwarzenegger. Poochigian’s poll numbers have barely moved in three months and despite some advertising, he’s still hardly known around the state. It’s always a bad sign when 51 percent of your own party’s members hold no opinion of you a week before the election. That’s the case with Poochigian.

Feinstein, Lockyer and Brown will spend election night together at a San Francisco party, no doubt eager to see who wins bragging rights as top vote-getter.

— Cheryl Miller

Defense attorney Ian Loveseth is due more than the satisfaction of winning two spats that have embarrassed U.S. Attorney Kevin Ryan — he’s finally going to get some money out of the government, too.

Earlier this week, Ryan’s office dropped a gun case against Loveseth client Lloyd Jamison after a prosecutor listened to taped conversations between the two — and after the prosecutors sparked an uproar by arguing in court that phone conversations between inmates and their attorneys aren’t subject to privilege. Satisfying as that must have been, it’s his other recent dustup with Ryan that’ll produce unusual monetary rewards.

In an earlier eruption, Loveseth locked horns with Ryan’s office when a DEA agent gave conflicting testimony in a drug case, the U.S. Attorney’s Office delayed in dismissing the case, and Judge Charles Breyer ruled that Loveseth could depose the U.S. attorney and five deputies as part of his attempt to recoup his client’s attorneys’ fees.

This raised some eyebrows since the government taking seriously the request for attorney’s fees is such a rare occurrence that several Justice Department veterans said they’d never heard of before.

The depositions got delayed as Loveseth and Patrick McLaughlin, an assistant U.S. Attorney from L.A. who’s been assigned to handle the case, discussed a settlement. On Wednesday, the two attorneys came back to Breyer’s courtroom to ask his advice on a key matter: “The appropriate rate a lawyer is entitled to receive in compensation for services rendered,” as Breyer put it at the hearing. The lawyers met with the judge in chambers; Breyer agreed to review filings by both parties and report back in December, at which time a settlement could be finalized.

— Justin Scheck

Michael Crook is a New York criminal justice student who this summer posed as a young woman in several adult-themed Craigslist ads, exchanged e-mails with several men who responded, and then posted the men’s addresses, employers on his Web site, “craigslist-perverts.com.” (The site has been taken down). Crook is considered a copycat of Jason Fortuny, who similarly this year posed as a woman on Craigslist then posted the responses online, to the great irritation of privacy advocates. But Crook took Fortuny’s “activism” a step further, even contacting one of the respondent’s wives and several of his work colleagues.

Crook dubs himself a “champion of copyright and DMCA” issues on his site, but now he’s got another title: Defendant.

On Wednesday, the San Francisco-based Electronic Frontier Foundation slapped him with a suit (.pdf) accusing him of misusing the Digital Millennium Copyright Act. The case arises not out of Crook’s Craigslist shenanigans, but from when he accused a Web site of misappropriating his image, which was taken from an interview Crook did with Fox News, without his permission. The site used the image in a very critical story about Crook.

“This is yet another case of someone intentionally misusing copyright law to try to shut down legitimate debate on an issue of public interest,” EFF Staff Attorney Jason Schultz said in the press release. “Crook certainly doesn’t own the copyright to the news footage — Fox News does. Furthermore, a still shot of that footage, used as part of a commentary on the controversy surrounding him, is clearly a fair use. It’s hypocritical for such an outspoken figure like Crook to attack other speakers just because they disagree with him.”

In his defense, Crook (who once proudly ran the official fan club for the Dutch techno band “2 Unlimited,” responsible for the 1992 jock jam, “Get Ready for This”) says the EFF lawsuit is “frivilous (sic), and without merit.”

The EFF’s lawyers may have an interesting fight in store. Crook’s Web site boldly proclaims: “I have been known to make school board presidents squirm at school board meetings as early as the fourth grade.”

[Update: After we put this up, BoingBoing did another great post detailing the wacky legal misadventures of young Mr. Crook. It's well worth a read.]

— Jessie Seyfer

Seyfarth Shaw lawyers couldn’t have thought it a good sign when their motion to clarify — filed in defense of client Costco in an employment discrimination action — provoked a reply from Judge Marilyn Patel entitled “Order Clarifying That Which Need Not Be Clarified.”

Indeed, the San Francisco federal judge smacked down the defense’s entreaties last week in language usually reserved for petulant children.

Plaintiff lawyers, led by The Impact Fund and Lieff Cabraser Heimann & Bernstein, have alleged a glass ceiling at Costco for female employees seeking promotion. They’re seeking class status. In response, Seyfarth lawyers have produced 204 declarations from women workers saying, in general, that the retailer treats them just fine.

Multiple aspects of the declarations irked the plaintiff lawyers, who A) raised the specter that they were obtained through coercive means, and B) argued the declarants’ contention that they never witnessed or suffered discrimination was inadmissible because it is a legal conclusion by a layperson.

So on Oct. 10, Patel’s order (.pdf) told Costco to produce its declarants in court for examination. All of them.

That prompted Seyfarth lawyer David Kadue’s motion for clarification, dated Oct. 20, in which he wondered in part about the logistics of such a mass witness appearance. Attorney Kadue then became acquainted with Judge Patel’s buzzsaw.

“Apparently defendant is determined to waste the court’s time for it has now moved for clarification, questioning whether the court means what it has said,” Patel wrote. “The court does.”

She continued: “The methods for communicating with the declarants, transporting them to the hearing, and the order in which they will appear are details which the parties should agree upon or work out themselves. The court has neither the time nor the inclination to serve as a travel agent.”

The judge then expressly forbade any additional requests or submissions on the motion for class certification, which will enable the parties “to focus their efforts and the time and resources of the court” on an upcoming hearing on the issue instead of “additional motions for clarification of that which the court has made abundantly clear.”

Apparently the lawyers got the message; yesterday, Patel signed a stipulated agreement striking the language in the declarations the plaintiffs had found so irksome, while still allowing the court to hear from Costco’s parade of character witnesses.

— Dan Levine

The Milberg Weiss case is making people jittery — again. Fortune Magazine wrote another big story on the saga (largely retread) and Fortune and the Daily Journal both wrote about the interesting presence of former Milberg expert witness John Torkelsen in downtown L.A. Long viewed by prosecutors as a key to the case, the expert, who was sentenced earlier this year to federal prison time in New Jersey, was moved to an L.A. facility weeks ago, ostensibly for a handwriting examplar. But his continued presence in SoCal has many lawyers in the case wondering if he’s flipped — or if prosecutors are just massaging him to coax out some bit of information.

In the meantime, Milberg’s lawyers are working hard to assert attorney-client privilege over any documents they can possibly fit under that umbrella, while prosecutors need to figure out if they can use the testimony of Steven Cooperman, the man who began the entire probe — or if his sketchy past makes him too tainted.

Lawyers involved with the case say the tension is unlikely to dissipate before the next big break — prosecutors risk judicial upset if they don’t file additional indictments by the end of the month.

— Justin Scheck

Liberals never much liked Janice Rogers Brown while she was on the California Supreme Court. And they haven’t changed their minds one year into her new job.

In a recently released 101-page report (.pdf), the People For the American Way Foundation rails on 38 appellate judges appointed by the Bush administration, accusing them of “undermining Americans’ rights, liberties and legal protections.”

Brown, who joined the D.C. Circuit U.S. Court of Appeals in Washington on Sept. 8, 2005 — after nine controversial years on the California Supreme Court — gets her share of lumps from the organization.

Specifically, People For the American Way Foundation addressed three rulings — in which Brown either authored the decision, wrote a separate opinion or voted against rehearing — that it believes show her views are outside those of mainstream society.

In Lutkewitte v. Gonzales, 436 F.3d 248, the D.C. Circuit, in an opinion released Feb. 3, upheld a trial court verdict that went against a woman who sued her employer, the FBI, after she submitted to a supervisor’s sexual advances for fear of losing her job.

The appeal court agreed that the woman wasn’t entitled to a jury instruction that the FBI was strictly liable for harassment. Brown angered People For the American Way by writing a separate concurring opinion that “was grounded in her belief that employers should never be held strictly liable in sexual submission cases when the victim of harassment has not suffered an adverse employment consequence.”

The alleged victim had testified she received overtime pay and a new car for her personal use after submitting to her boss’ advances.

The foundation’s report also pointed to the Feb. 28 ruling in National Labor Relations Board v. Cooper Tire & Rubber Co., 438 F.3d 1198. The ruling, authored by Brown, dismissed a case in which the NLRB was trying to enforce a subpoena for materials needed for an investigation into possible anti-union efforts.

“Brown’s opinion,” the report notes, “held that the NLRB, although carrying on the investigation from its offices in the District of Columbia and issuing subpoenas from that office, could not seek enforcement of those subpoenas in D.C. federal court, because the investigation was not nationwide in scope.”

The lone dissenting judge warned that the ruling would be “a powerful new tool” for delaying agency investigations.

Brown was also faulted for voting against having the full D.C. Circuit rehear Commonwealth of Massachusetts v. Environmental Protection Agency, 433 F.3d 66. In that case, three judges ruled that the EPA had the authority to refuse a petition by states and environmental groups that wanted the agency to regulate carbon dioxide and other greenhouse gas emissions from new vehicles.

Brown was one of four judges — of a panel of seven — who voted against an en banc hearing. The U.S. Supreme Court later granted certiorari.

“What we’re seeing,” foundation vice president and legal director Elliot Mincberg wrote in a press statement, “is unfortunately exactly what the Federalist Society and White House hoped for when they promoted one ultraconservative ideologue after another to the appeals courts.”

Brown can take some comfort in the fact that the report also goes after a few other judges with San Francisco connections. Ninth Circuit judges — and Bush appointees — Carlos Bea, Consuelo Callahan, Richard Clifton and Jay Bybee get grief, too.

— Mike McKee

With merger mania gripping the legal community this week, it’s worth remembering that sometimes these ventures don’t work out so well.

Take the news this week that Dorsey & Whitney may shutter its San Francisco office. That office is itself the result of a 2002 merger between what was then 750-lawyer Dorsey & Whitney and 27-lawyer IP boutique Flehr Hohbach Test Albritton & Herbert of San Francisco.

The first public sign that things might not be working out so well came in May 2005, when Dorsey did a second Bay Area merger, with Palo Alto’s Ritchey Fisher Whitman & Klein. Maria Swiatek, a Flehr Hohbach veteran, put a positive spin on it at the time.

“We are executing on a strategy that began three years ago,” she said. “It had been our business plan to expand with the addition of corporate and litigation to round out our IP practice.”

But today, the IP practice that came over from Flehr Hobach has grown thin. Only six of the 21 lawyers listed with Flehr Hohbach in the 2002 Martindale-Hubbell directory remain with Dorsey.

Two of the 2002 alumni are deceased. Six list what appear to be residential addresses with the State Bar. One is listed as inactive. Two have gone in house. One operates his own firm. One is at Townsend and Townsend and Crew, one is at Perkins Coie, and one works at Pepper Hamilton in Pittsburgh. Patent prosecutor Ann Caviani Pease, who was brought in from Cooley Godward to help anchor the Palo Alto office shortly after the Flehr Hohbach merger, left for Dechert in 2005.

Dorsey Deputy Managing Partner L. Joseph Genereaux put a different spin on it last week to the San Francisco Daily Journal: “We feel that putting all of the lawyers in Palo Alto, where we have the trial and corporate practice, makes the most sense at this time.”

– Scott Graham