Archive for January, 2006

At Least She Has More Time to Cram …

January 31, 2006

The heavyweights at Quinn Emanuel Urquhart Oliver & Hedges had better hope their former Stanford dean spends every spare minute boning up for her next appearance in Sullivan v. The Bar. Because as one State Bar official said, there is “very little, if anything? that lawyers who live in California, but don’t have a state Bar license, can do to practice law — at least in state courts.

As most of lawyerly America knows by now, Kathleen Sullivan, a former Stanford Law School dean, failed the California Bar exam last year shortly after moving to the state to work as of counsel in Quinn Emanuel’s Redwood Shores office.

Then late last month, the state Supreme Court added to Sullivan’s woes by denying her request to appear pro hac vice for South San Francisco-based Genentech Inc. in a $500 million licensing dispute. That begged the question: What exactly could Sullivan do for her firm without a California Bar license?

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Temporary Reprieve for Locker

January 31, 2006

The fate of Miles Locker, the controversial Division of Labor Standards Enforcement counsel, remains up in the air. Locker’s attorney, Steven Zieff of Rudy, Exelrod & Zieff, was expecting that on Tuesday Locker would be served with a notice of adverse action – possibly “an attempt to fire Miles, to get rid of Miles.? Instead Zieff received a phone call from Anthony Mischel, a lawyer with the Department of Industrial Relations, Office of the Director – Legal Unit.

“I was called and told that they were not going to serve a notice of adverse action after all,? Zieff said. “I guess they need more than five months to develop their pretext? [for a case against Locker].

Locker has been on paid leave for the last five months; and so far his lawyer says the only specified incident of any purported infraction concerned his speaking in July at a panel sponsored by the Bar Association of San Francisco’s Barristers Club.

Zieff says it is anybody’s guess what will happen next: “They are not very communicative.?

And a spokesman for the Office of the Labor Commissioner wasn’t available for comment as of press time (which is whenever my editor decides to hit the “publish? button).

Asked if he has filed a lawsuit on Locker’s behalf, Zieff said, “Not yet.?

UPDATE: Dean Fryer, a spokesman for the Labor Commissioner’s office, declined to comment on Locker’s situation.

“Again it is a personnel matter, and if Miles and his attorney are going to speak to the issue that is fine,? Fryer said. “The reason for us not speaking is to respect Miles’ right of privacy.?

Fryer said that if Locker were to receive a notice of adverse action, he would have five days to plead his case before the Department of Industrial Relations. He would have the right to a hearing before a skelly officer, who would be a person within the Department of Industrial Relations who does not work in the same division as he does, and who has not had involvement in his personnel case. After that, he would have 30 days to file an appeal with the California State Personnel Board.

— Marie-Anne Hogarth

Alameda DA Trapped on Train (with journalist)

January 27, 2006

Alameda County DA Tom Orloff was spotted on BART a few days ago, squeezed beside a hulking pile of luggage, munching on an already mangled toothpick. Orloff had caught an early flight to San Francisco Airport from a DA’s conference in Palm Springs, then decided to BART back from the airport — a captive audience for an alert (and pushy) reporter.

The noisy rumblings and screeches of the train shuddering under the Bay nearly drowned out Orloff’s description of the conference, but this much is good enough to print: He definitely said he has a 19 handicap on the golf course.

Should Oakland’s top prosecutor even be riding public transit with art students, journalists and other riffraff? Sure, Orloff said. Not all district attorneys have two drivers, like the Los Angeles DA Steve Cooley. (Cooley spokeswoman Sandi Gibbons says LA’s top cop has a detail of investigators who double as chauffeurs. Does he ever ride public transit? “Well, he flies,? Gibbons replied. “That’s public transportation.?)

Before exiting the train at Lake Merritt, expertly balancing more luggage than a lone DA ought to carry — and wheeling his golf bag behind him — Orloff gave up another juicy factoid. He said he even pays his own way when he rides BART — unlike police officers, who get a free ride. That rule was put in place, Orloff said, because BART likes the increased police presence it gets in return. Should the DA get free fare, too? Nope. “I’m not going to hit somebody over the head and arrest them,? he said.

— Matthew Hirsch

State Court Pot Shot Aimed at Medical Marijuana

January 26, 2006

California’s medical pot defenders and the lawyers who represent them may have more to sweat than just the feds, if certain grumblers in Southern California have anything to say about it. San Diego County filed a federal suit last week that seeks to upend Proposition 215 — the state law voters passed in 1996 that makes pot smoking legal here if it’s recommended by a doctor. And the Associated Press reports officials in San Bernardino County just voted to join San Diego’s side in court.

Prop 215, aka the Compassionate Use Act, hasn’t really protected medical marijuana users when it comes down to it, since using marijuana in any form, for any reason, is still illegal under federal law. In San Francisco, the feds seem to have gotten more emboldened recently. Since last June, when the U.S. Supreme Court made it clear that the feds could prosecute medical marijuana users even if their states approved of the practice, the feds have raided dispensaries in San Francisco at least twice.

If the Compassionate Use Act goes down the drain, patients and growers in some counties may find themselves hauled into state courts, too. (Still, prosecutors in San Francisco, where most politicians openly embrace the medical marijuana cause, probably wouldn’t go there.)

— Pam Smith

Mighty Joe Dunn Grills Wonks on Court Funding

January 25, 2006

State Sen. Joe Dunn, D-Santa Ana, displayed his considerable skills as a plaintiff lawyer and politician Tuesday when he grilled, in his typically respectful way, two administration officials about why the governor’s $68 billion infrastructure bond proposal includes just $1.8 billion for courts.

Dunn, a partner in the Newport Beach firm of Robinson, Calcagnie & Robinson, politely peppered the finance program directors at a Senate Judiciary Committee until they conceded that, well, that $1.8 billion wasn’t really derived from any specific formula. Paraphrased, the half-hour exchange went something like this:

Dunn: Obviously you didn’t just pull that $1.8 billion figure out of thin air.

James Tilton and Fred Klass, two Department of Finance program directors: Of course not. We based it on the department’s “past experiences? funding courts.

Dunn: Sure. And did you consult with the Administrative Office of the Courts? You know they’ve compiled a $9.8 billion needs list.

Tilton & Klass: Uh, no. We more or less considered what the judiciary needs to take title to more court facilities from counties in the coming years.

Dunn: Yes, but you know the state can’t take over a lot of those buildings until somebody pays big money to make them earthquake safe. So again, just help me out here, where does that $1.8 billion number come from?

Tilton & Klass: Well, everybody wanted something: roads, levees, jails, schools, courthouses. “This $1.8 billion was a piece that looked like it could be apportioned to the courts,? Klass said.

And then, like a lawyer turning to his jury, Dunn told the small audience of legislative staff, reporters, lobbyists and whatever policy wonks were watching on cable television that “if that’s even near true … it’s disconcerting, because in essence we’re saying, here’s $1.8 billion … and it’s not grounded in any actual current needs.?

Case closed? Hardly. Dunn and other advocates concede the courts were lucky to even be included in the bonds proposal considering the long list of other, more politically popular projects in need of money. No one expects lawmakers to add more money to the court’s take.

But Dunn made it clear Tuesday that he wants an acknowledgment from the administration that the $1.8 billion for courts should be considered a funding floor, not a ceiling. Dunn’s Judiciary Committee will get its first crack at the actual language in the governor’s courthouse-bond bill when it meets on Monday.

— Cheryl Miller

How to Not Combat Tort Reform

January 25, 2006

Lawyer jokes. Like death, taxes and Adam Sandler movies, they are inevitable; we must just brace ourselves and bear up as best we can. But it doesn’t make it any easier to fend off those portrayals of attorneys as a greedy, unscrupulous pox on society when we have lawyers filing the kind of weaselly ambulance-chasin’ lawsuits that makes the general public see the profession as a bunch of ambulance chasin’ weasels.

The Seattle Post-Intelligencer reports that readers of the controversial James Frey memoir, “A Million Little Pieces,? are suing the publisher because the writer seems to have made up large chunks of his tale of redemption from substance abuse. Publisher Doubleday has already said it will give refunds to any of the two million readers who feel ripped off. But that’s not enough. Seattle attorney Mike Myers (no, not that Mike Myers) is representing two Seattle readers who seek class action status for their claim for damages due to, get this, the time they wasted reading the book. And there are at least two similar suits out there. Maybe the damage award will be Frey coming to their house to do the yard work they could’ve done? Or they could each be given the Cliff Notes to a better book, maybe some Mark Twain, so they can make up for the lost reading time.

We found this story linked on pre-eminent literary blog Bookslut, where one of the editors closed with this line: “You know, I never thought tort reform was a good idea. Until now.? So congratulations to Dr. Evil’s namesake, there, for encouraging a world in which dead-lawyer punch lines get a laugh and consumers will actually vote to limit their access to the legal system because of eye-rolling filings like this.

– Brian McDonough

Santa Clara DA Candidates Start Their Engines

January 25, 2006

Santa Clara County’s four district attorney candidates have all vowed to play nice this campaign season, but one can only wonder if the smiles and good-natured handshakes will last through the June primary.

Marc Buller, Dolores Carr, James Shore and Karyn Sinunu all looked mighty spiffy — albeit slightly nervous — at Monday night’s public forum at the Billy DeFrank Lesbian, Gay, Bisexual and Transgender Community Center in San Jose.

It was the first public forum of the year and the conversation ranged from capital punishment to hate crimes.

But the most telling moments of the evening weren’t so much the questions and answers, but rather the eye-rolling and sideward glances a few of the candidates displayed throughout the evening. (Too bad this wasn’t a debate!)

One hot-button issue that seemed to keep popping up all night was the current San Jose Mercury News series that is critical of the county’s criminal justice system.

The newspaper’s three-year investigative report has been the talk of the South Bay legal community since it started running Sunday, and DA candidates were quick to pounce.

But there were obviously two sides to this issue.

Carr, a Santa Clara County Superior Court judge, and Shore, a deputy DA, were quick to blast the DA’s office and the alleged prosecutorial misconduct alleged in the newspapers’ series. (In fact, Shore is calling for the state attorney general’s office to investigate the claims.)

Buller, an assistant DA, was quick to rebut charges that the office has a win-at-all-costs mentality. And Sinunu, the chief assistant DA and retiring DA George Kennedy’s hand-picked successor, used her five-minute opening talk to discuss all the good things she’s done for the gay community.

But in an earlier phone interview Monday, Sinunu called the newspaper’s report “an important story,? noting that it was “pretty thorough? and for the most part accurate.

“We were part of the project from the beginning,? Sinunu told The Recorder. “We believed in the project.?

— Julie O’Shea

‘Boomer’ Suit Goes Bust

January 24, 2006

Baby boomers take heart. Old age may be coming, but at least discounts of all kinds are looming.

On Tuesday, San Diego’s Fourth District Court of Appeal ruled unanimously [subs. req.] that discount tickets for customers born between 1946 and 1965 to a theatrical production called “Boomers” didn’t violate state civil rights or unfair competition laws.

“Providing discounted theater admissions to ‘baby boomers’ to attend a musical about that generation does not perpetuate any irrational stereotypes,” Justice Alex McDonald wrote. “Rather, the discount acts to honor a generation of individuals who … have contributed to the economy and participated in and contributed to meaningful civic, cultural, educational, business and recreational activities.” Justices Patricia Benke and Joan Irion concurred.

Reyna and Patricia Pizarro, Imee Torres and Diana Burgos sued after they were charged full price in 2004 for a Lamb’s Players Theatre production of the musical “Boomers” at the Lyceum Theater in downtown San Diego. Regular-priced tickets ranged from $28 to $42, while baby boomers paid half-price. The plaintiffs demanded baby boomer prices, but were rejected. They claimed the discount violated the Unruh Civil Rights Act’s provisions on age discrimination and constituted unfair competition. San Diego County Superior Court Judge Kevin Enright dismissed the case and the appeal court agreed.

“Because a theater ticket discount allows greater access to the theater,” McDonald wrote, “public policy favors the disparate treatment, whether the discount is made available to children, seniors or boomers.” Boomers can celebrate because the court also noted 12 other instances in which state and federal courts have upheld discounts or favorable laws for senior citizens or people 55 and older. So chew that over while contemplating false teeth, rocking chairs and crow’s feet.

By the way, Justice McDonald isn’t a boomer, having been born in 1936, but Benke and Irion — each in their 50s — both qualify.

— Mike McKee

Kozinski Walks a Mile in IJs’ Shoes … Alone

January 24, 2006

Looks like Alex Kozinski’s defense of an unlikely underdog is fully under way. Judging by recent statements and a Monday opinion, the Ninth Circuit judge seems intent on calling his appeals court colleagues to task for treating immigration judges like sad whipping boys in opinions overturning their decisions — an attitude that creeps into news stories about the overloaded and under-resourced immigration courts.

“We do not treat other trial judges with such disdain and disrespect, and there is no justification for doing so when immigration judges are involved,? Kozinski wrote Monday in dissent from the opinion written by Judge Stephen Reinhardt, and joined by Judge Marsha Berzon, in Kumar v. Gonzales[subs. req.] Referring to discrepancies in the underlying case of Raj Kumar, Kozinski wrote “It’s no wonder Raj didn’t bother to explain the inconsistencies to the IJ; he must have predicted — accurately, as it turns out — that the Ninth Circuit would do it all for him.?

This comes after Kozinski on Jan. 11 told the Recorder that “Going after immigration judges is very easy, a cheap shot in a sort of way” since “they have no way of talking back, they don’t hang out with any of our friends.” The dissent from Reinhardt’s opinion in the Kumar case — which reversed an immigration judge’s denial of asylum to an Indian man whose claims the immigration court found were not credible — quotes several other dissents, including Kozinski’s own, in lamenting the little credibility the Ninth Circuit grants to immigration judges. In the Kumar case, Kozinski says the majority should not have discounted the immigration judge’s analysis of photo and written evidence to determine the applicant’s credibility.

“My colleagues grumble that an immigration judge shouldn’t pretend to be a “handwriting expert? or a ‘forensic laboratory,’? Kozinski wrote. “But a circuit judge shouldn’t pretend to be an immigration judge. This is yet another tiresome example of the nitpicking we engage in as part of a systematic effort to dismantle the reasons immigration judges give for their decisions,’? he continued, citing his own dissent in another case.

While other judges have occasionally made similar gripes, it seems like Kozinski is in the minority in the Ninth Circuit, where immigration judges are frequently overturned. As Reinhardt argues in a footnote to his Kumar opinion, “When our dissenting colleague quotes eleven separate statements from dissenting opinions, mainly his own, it is not difficult to determine that the law is not on his side.?

— Justin Scheck

Sing Your Praises, or Hide Your Raises?

January 21, 2006

The way firms have handled news of the recent salary wars has ranged from assertiveness to secrecy. While some firms have publicly announced the raises and their strategy behind them, other firm leaders have refused to discuss the increases.

The first Los Angeles-based firms to announce the raises — Irell & Manella and Quinn Emanuel Urquhart Oliver & Hedges — were open about the decision. Several months later, larger Los Angeles firms such as Gibson, Dunn & Crutcher and O’Melveny & Myers were tight-lipped about the pay hikes.

Quinn partner Bill Urquhart said it was an easy decision to be forthcoming, especially since the word was already out that Irell was lifting starting salaries.

“With the advent of the Internet, once something becomes public, it seems everyone finds about it relatively quickly,? he said last month. “We didn’t want that firm to have a competitive advantage over us in the middle of recruiting season.?

While Urquhart acknowledged that clients pay attention, he said that, for the most part, they understand why.

“All of them exist in a competitive environment — when they go out and hire, they know what is going on in the marketplace,? he said. “What we’re dealing with is no different — it’s just a different industry.?

Consultant Peter Zeughauser agreed. “I don’t think it will be a client issue this time around. It was in the dot-com era when there were several years of increases, then the Gunderson raise. But now, they’ve been frozen so long.?

Consultant Richard Gary pointed out that some of the first firms that upped the salaries may have been keeping quiet to preserve the competitive advantage, even though, “you can never keep things like that secret for long.?

The tight-lipped approach could also be a response to internal debates on whether to up the salaries, Gary said last month.

“Who wants to be the market leader in associate salaries?? he said.

— Kellie Schmitt