November 2012 Volume 43, Issue 11. The Marin Lawyer. An Official Publication of the Marin County Bar Association

Transcription

1 November 2012 Volume 43, Issue 11 The Marin Lawyer In This Issue Judge Breiner Honored... 2 MCBA Receives Recognition... 3 Marin County Law Library News... 3 Phoenix Project of Marin... 4 Marin County Jury Verdicts... 5 Restorative Justice... 6 How to Provide Extra Value... 7 Ethics Corner... 8 Politically Incorrect... 8 CLE Fair MCBA Standing Committee New Members/ Change of Scene Marketplace Jessica Pliner was Guest Editor of this issue of The Marin Lawyer. Kate Rockas is Series Editor for An Official Publication of the Marin County Bar Association GENERAL MEMBERSHIP MEETING WIN OR LOSE: CONGRES- SIONAL CANDIDATE JARED HUFFMAN TO SPEAK ABOUT RUNNING FOR CONGRESS AND THE ART OF BLENDING LAW AND POLITICS The MCBA s own Jared Huffman, congressional candidate and California State Assemblymember for Marin and southern Sonoma Counties, will address the Marin County Bar Association at its monthly lunchtime membership meeting on Monday, November 19, 2012, at the Four Points Sheraton in San Rafael. He will speak about the knowledge he gained from his Congressional race, the challenges of blending the law with politics, and answer questions from the audience. Huffman is a former member of the MCBA Board of Directors and spent twelve years as a board member of the Marin Municipal Water District (including three terms as President). One of his proudest accomplishments as an attorney with the Natural Resource Defense Council was helping forge an agreement to restore a 153-mile stretch of the San Joaquin River in California s Central Valley. Before he joined the NRDC, Huffman was a successful public interest attorney whose victories included several major jury verdicts in gender discrimination and race discrimination trials. Jared lives in Marin with his wife Susan and their two children, Abby (age 12) and Nathan (age 9). Jared graduated magna cum laude from the University (Continued on page 11) Active Thanks By Jessica Karner In this month of thanksgiving, I want to suggest that getting involved in community service in whatever way moves you is a wonderful way to express, and perhaps even expand, your gratitude. As eloquently put by the poet Edwin Arlington Robinson, there are [t]wo kinds of gratitude: The sudden kind we feel for what we take; the larger kind we feel for what we give. So I encourage you to give back as a way of saying thanks. And the opportunities to do so within our own community are virtually limitless. In this president s message, I m going to highlight some ways to get involved (both law-related and not), but Calendar of Events November 16 th Fifth Annual CLE Fair 8:45 am 2:45 pm November 19 th General Membership Meeting Four Point Sheraton, San Rafael 12-1:30 pm November 21 st ADR Section Meeting 12-1:30 pm December 13 th Holiday Party Save the Date! Look for details each month in The Marin Lawyer (Continued on page 11) 1

2 JUDGE BREINER RECEIVES MCBA LIFETIME ACHIEVEMENT AWARD By Jessica Pliner Judge Richard H. Breiner (Ret.) was presented with the MCBA s lifetime achievement award on September 27, The award is bestowed to recognize individuals for a career s worth of distinguished service. Judge Breiner is the first inaugural recipient of the award and his achievements and dedication to the community will no doubt serve as standards in evaluating future recipients. Judge Breiner has been a consistent MCBA supporter and is so well thought of as a lawyer, judge, community leader and as a person that the MCBA Board unanimously voted him as the first recipient of the award. The awards dinner was a sold out event at the Stone Tree Golf Club in Novato. A slide presentation put together by David Feingold of Ragghianti Freitas, LLP and Judge Breiner s family and a video created by the Marin chapter of the Consumer Attorneys of California were shown. Gary Ragghianti presided as the master of ceremonies and supplied witty, entertaining and informative remarks fitting for the recipient. Gary told stories about Richard Breiner s brilliance, skill and work ethic as an Dan Breiner, Dottie Breiner, Deborah Breiner, Judge Breiner (Ret.) 2 The Marin Lawyer attorney, judge a n d m e d i a t o r since he began his RESERVATION FORM General Membership Meeting Speaker: Jared Huffman Please make reservations for me at Four Points Sheraton on Monday, November 19, 2012, from 12-1:30 pm. career in After acting as the County s contract public defender and serving as Tiburon s City Attorney, Richard Breiner was appointed to the Marin Superior Court in He remained on the bench until 1997 when he retired, but continued working as a mediator. Gary s anecdotes also evidenced Judge Breiner s famous sense of humor. Many in attendance repeated these professional and personal characteristics when speaking about their experiences with Richard Breiner. Judge Breiner s remarks when accepting the award buttressed Gary s words demonstrating that he is extremely wise and humble. Eric Sternberger, Judge Breiner (Ret.), Gary Ragghianti Serving the legal community of Marin since 1965 MARIN PACIFIC COMPANY.INC. General Insurance Brokers and Agents PROBATE BONDING Fourth Street Daniel C. Dufficy San Rafael, CA Gail Anne Geary Representing major surety carriers fast local service Please choose one: Chicken Scaloppini Lemon Cheese Crusted Tilapia Vegetarian Couscous Name(s) or Firm Name: Phone: Enclosed check for $35 members and $45 non members. *Late sign ups $10 more Visa Mastercard 3 digit code Exp Address Zip RSVP by November 16, 2012, *after 11/16 you are considered a late sign up. Make checks payable to MCBA and mail to: MCBA,101 Lucas Valley Road, Suite 326, San Rafael, CA Reservations are non-refundable unless the individual provides at least 24 hours cancellation notice to MCBA.

3 MCBA Receives Recognition at the State Bar Annual Conference Robynn Gaspar, MCBA Executive Director and Paul Marks On October 11 th at the State Bar Annual Meeting Board Leaders Conference, MCBA was one of two Bar association to receive recognition for its work and participation in The Campaign for Justice. The Campaign for Justice works to educate key policymakers about the need for legal assistance, to increase contributions to the Justice Gap Fund and local legal aid organizations, and to encourage pro bono services in order to increase local and statewide legal aid resources. MCBA was one of the first bar associations to sign a resolution in support of the campaign and publicize the campaign to the Marin community. MCBA was recognized for its leadership in gathering support for the Campaign for Justice and educating the community about the critical need for increased funding for legal services for indigent Californians. The campaign is still going on and you can lend your support by: 1. Join the Campaign. Go to org/action/join to declare your support and discover simple ways you can take action. 2. Contribute statewide. Donate to the Justice Gap Fund at to support legal aid throughout California. 3. Support local legal aid. You can direct your financial or pro bono support to Legal Aid of Marin or others listed at SAVE THE DATE 2013 INSTALLATION DINNER JANUARY 5, 2013 Marin County Law Library News & 2014 Strategy Beginning in February 2013, the building in which the Marin County Law Library is currently housed will be closed for renovations for a year or more. During construction, the Law Library will be temporarily relocated to much smaller space at 70 San Pablo Avenue, opposite the Santa Venetia Market. The temporary space is about one-third the size of the current facility and parking will be severely curtailed. About two-thirds of the Library s current holdings will have to be boxed up and warehoused until the renovation is completed. In what is being described as Strategy 2014, the Law Library is looking to both the legal community and the public for ideas and recommendations about (1) how best to manage a year or more of severe restraints on the services and resources normally offered to its patrons, and (2) plans for operation after the return to its present location. It s the return that is really commanding our attention, advises Hal Aigner, the Law Library s current Director. The entire time in which the library is off-site in temporary smaller quarters will provide an excellent opportunity for a review and improvement of all aspects of library operations. The Law Library will really be looking forward to a new beginning. It is estimated that the construction work will be completed sometime between the end of 2013 and March of Whatever the span of time, says Aigner, it will provide a welcome opportunity for a close look at everything to do with the Law Library. The ratio of expenditures made on practice materials as compared to legal treatises is one example. Another is how the Law Library might become more available for pro bono services, like Alameda County s Lawyers in the Library program. There is also a need for refining a number of operating policies, such as those governing the use of public work stations and internet access. To that end, the Law Library Board of Trustees and staff members invite the legal community and the general public having an interest in the resources, programs and services made available to patrons to contribute whatever ideas, information and suggestions they have both for the relocation period and for the Law Library that will be serving Marin in Please contact Ben Gale at bengalelaw@yahoo.com or (415) to ask questions or volunteer. Family Law Judgments To ensure processing by the end of the year, family law judgment packets must be submitted by December 7,

4 .) SPOTLIGHT ON A COMMUNITY NON-PROFIT ORGANIZATION: By Pam Bousquet 4 Phoenix Project of Marin Marin City has grown from a World War II shipyard to a public housing area mainly populated by lower income African American residents. After a sudden increase in criminal activity in 2009, a few members of the community decided it was time to act. Phoenix Project of Marin (PPOM) started as a grassroots effort to redirect the lives and activities of a group of young males who regularly gathered in a certain area of the public housing complex. A group of Marin City residents, headed by Felecia Gaston, director of the youth organization, Performing Stars of Marin, founded PPOM in partnership with the Marin County Housing Authority, Board of Supervisors, Probation Department, Sheriff s Department, District Attorney and Public Defender. Phoenix helps participants create a stable and sustainable lifestyle through employment, counseling and vocational training. It directly improves each participant s quality of life by providing a case manager and numerous services: life skills training (financial education, counseling, parenting classes, vocational counseling/training); work support (assistance with child care, obtaining housing, welfare assistance, driver licenses, MediCal); educational support (case managers, tutoring); and enrichment activities (athletic, musical, cultural events). The focus is on changes in lifestyle through employment, education and counseling, to break the cycle of poverty and crime in the community. Located in the heart of a formerly crime-ridden neighborhood, PPOM is becoming a community resource center where participants can drop in for a variety of services The Bay Area s Premier Reporting Service Capturing your words with caring hands Complimentary Conference Rooms Document Depository Livenote/E-Transcript Videoconferencing 117 Paul Drive, Suite A San Rafael, CA Fax depos@westcoastreporters.com including personal and family counseling, to meet their probation officer, get legal referrals, request crisis intervention, use computers, get a ride to football practice or have something to eat. Approaching its third year, PPOM is attracting participants outside of our targeted social, age and gender range. The program has broadened to encompass a wider variety of participants and services, now serving college-bound youth and entrepreneurs. So far Phoenix has provided services to 180 participants. For example, Phoenix sent a group of boys and girls to Washington D.C. in the summer of 2011 to visit colleges and the nation s capital. Phoenix has also sponsored Career Day events, bringing students and successful men together to discuss jobs and careers, as well as field trips to the snow, SFSU, a bike trip for kids co-sponsored and co-chaperoned by the Sheriff s Department, athletic events, book signings, etc. PPOM and the Probation Department have partnered on several projects including local labor s union apprenticeships, and recently successfully completed a pilot program in Marin City which provided jobs for people just released from prison through AB109 (Governor Brown s bill to reduce prison overcrowding.) A number of Marin County Bar Association members have participated in Phoenix activities and the Diversity Section has sponsored events such as taking participants athletic games and musical events, thanks to former Deputy District Attorney, Alan Charmatz, now in private practice, and Deputy Public Defender Pedro Oliveras. Public Defender Jose Varela and Chief Deputy Public Defender David Brown have conducted workshops for the group, as has David Vogelstein. Deputy District Attorney Otis Bruce and retired Judge William Stephens have participated in Phoenix Career Days. District Attorney Ed Berberian is also a partner and active supporter of the Project. Retired Deputy District Attorney Pam Bousquet has been a volunteer since If you are interested in volunteering for Phoenix Project of Marin or would like more information, please contact Pam Bousquet at (pamafloat@ comcast.net) or Felecia Gaston at (info@ phoenixprojectofmarin.org). Pam Bousquet is a retired Marin County Deputy District Attorney who has been engaged in several volunteer activities since retirement: Adult Drug Court, Marin Literacy Program, the Floating Homes Association and her favorite - Phoenix Project of Marin.

5 Secured Document Management Solution Man hours lost looking for documents? Can you find your documents easily? Auditing a headache? Worried about being penalized for non compliance to Govt. regulations? $$$ Your business spends on stationery, storage and resource for document filing and retrieval? Well then wait No more & take action as below Login and try for FREE a Full Featured Evaluation System with Collaboration at : User: testuser@law pass:testpass123 PH: MARIN COUNTY JURY VERDICTS Plaintiff(s): Kathy Roe aka Kathleen Freitas Defendant(s): Dr. Horace Bixby Newhard Case Number: CIV Insurance Carrier: The Doctors Company Plaintiff Attorney: Patrick M.K. Richardson, (415) Defendant Attorney: Ronald Paul Goldman, Robert V. Good, The Goldman Law Firm, Tiburon, (415) Plaintiff Doctors: Susan Logan, OB/GYN, Santa Rosa; Christine M. Naber Ph.D., Psychology, Healdsburg Defendant Doctors: Thomas Neylan, UCSF, Psychiatry; Steven Fugaro M.D., San Francisco Judge: Faye D Opal Date of Incident: September 1, 2007 Type of Action: Battery: Sexual Battery Location of Accident/Incident: Defendant s office/examination room at his practice in Novato. Plaintiff: Age: 65 (currently) Occupation: Retail Sales Residence: Novato Facts of Case: Plaintiff Kathy Freitas alleged that during a visit in 2007, her physician Dr. Horace Bixby Newhard, 78, sexually violated her by thrusting his finger into her during a vaginal examination, which she believed was only to be an external examination. Following the vaginal exam Dr. Newhard then conducted a breast exam wherein he pinched, tugged and squeezed her nipples. Plaintiff alleged that Dr. Newhard then hugged and kissed her and grabbed her buttocks. Plaintiff contended that two weeks later Dr. Newhard called her at home to invite her to an art exhibition and then made a lewd comment about coming over to her house to help her put her breast in her bra. Plaintiff alleged that Dr. Newhard committed a sexual andyp@greenbaytek.com battery on her person, resulting in post traumatic stress disorder and ongoing symptoms of anxiety, avoidance, inability to have relationships with men and difficulty sleeping. Defendant contended that he followed usual diagnosis and treatment methods since placing her on hormone replacement therapy, and had not conducted a baseline vaginal or breast exam of her in over four years. The plaintiff had a family history of breast cancer. She had misinterpreted his medical evaluation and an innocent hug and kiss that followed. He also contended that she did not suffer from post traumatic stress disorder, and had never mentioned to her treating physicians or a plastic surgeon that she had any problems following the exam by Dr. Newhard. Length of Jury Trial: 3 weeks Jury Deliberated: Afternoon/Morning Plaintiff Attorney asked the Jury to Award: $450,000 Defendant Attorney asked the Jury to Award: $0 Injuries/Damages: I. Past Economic Loss: Medical Expenses & Lost Earnings $5, II. Future Economic Loss: Medical Expenses & Lost Earnings $32,462 $38, 462. III. General Damages: Non-Economic Loss: 5 yrs. $292, Future Non-Economic Loss: 2 yrs. $116, Total Non-Economic: $408, TOTAL DAMAGES SOUGHT: $446, ,588,60 Settlement Talks: Demand: $650,000 Offer: None Result: Defense Verdict Poll Result: Verdict Date: 8/22/12 Jay Framson is an attorney in Novato specializing in insurance coverage and bad faith, breach of contract, business litigation, civil writ and appeals. He can be reached at jay.framson@gmail.com. Legal Videos, LLC Legal Videos, LLC Serving Marin and the Bay Area since Redwood Highway F #150 San Rafael, CA F billhamm@legalvideos.com Serving Marin County & the San Francisco Bay Area since 1988 Multi-media Trial Consultation Need help with your next trial? Trial Preparation Courtroom Equipment Trial Presentations (Let us help display your exhibits and/or video) Complimentary Deposition / Conference Suites with Free refreshments when using our services Deposition / Conference Suites also available for Rent Lots of easy parking & right off of Highway 101 Call for a free consultation today Redwood Highway, F #150, San Rafael, CA billhamm@legalvideos.com 5

6 ANNUAL HOLIDAY PARTY THE MARIN COUNTY BAR ASSOCIATION Cordially invites you to attend our Holiday Party Thursday, December 13, :00 7:00 PM Resolution Remedies th Street, Eight Floor San Rafael, Ca With Beverages, Spirits and Appetizers generously provided by: Resolution Remedies and the Marin County Bar Assocation Join us for some holiday cheer! No Cost Please RSVP via to: See You There! Resolution Remedies is proud to welcome Mary McLain, LL.M ADR to our distinguished Professional Panel of retired judges and prominent attorneys. Mary McLain has a strong track record of helping parties move through the business, financial, emotional and cultural issues that lead to impasse. With extensive education in ADR, she creates an environment where people in conflict can work to achieve results rarely available through the litigation process. Please call Resolution Remedies to schedule a mediation with Mary today. Resolution Remedies (415) RESTORATIVE JUSTICE: AN OPPORTUNITY TO MAKE A DIFFERENCE By Charles D. Dresow Restorative justice is a theory of justice that emphasizes repairing the harm caused or revealed by unjust behavior. Restoration is best accomplished through inclusive and cooperative processes. The Marin County Bar Association is beginning the process of exploring ways in which restorative justice principals can be integrated into the Marin County criminal justice system. In our current fiscal crunch the Courts have fewer resources which are spread across a growing number of civil and criminal cases. Restorative Justice can effectively protect the community, redirect low level non-violent offense away from the overburdened Courts, rehabilitate the offender, restore the victims, and cut recidivism. Chief of the Marin County Probation Department Mike Daly recently spoke to the Marin County Bar Association Board of Directors. He explained the theory of Restorative Justice and gave examples of effective Restorative Justice Programs such as the Marin County Youth Court. The Marin County Bar Association has an opportunity to be a leader in the exploration and potential integration of Restorative Justice in our Court system. The criminal justice section will be hosting an informational meeting regarding Restorative Justice in the New Year. The Marin County Bar Association would like to askfor volunteers to explore ideas of how to integrate Restorative Justice into the criminal justice system. Anyone interested in participating please 2012RJMCBA@ gmail.com. THE COACH FOR LAWYERS, LLC Helping lawyers and law firms thrive John Allison 4040 Civic Center Drive Suite 200 john@coachlawyers.com San Rafael, CA Coaching Training Law practice consulting Strategic planning 6

7 How to Provide Extra Value to Business Clients By John Corcoran New clients are funny sometimes. They don t always seem to know what they want, even if they think they know what they want. I met with a new client recently who was just like this. She was starting up a new business and wanted advice. Scratch that. She needed advice. She needed help with everything from getting a logo to market positioning to pricing to starting a company while managing to care for multiple young children. I agreed to meet with her, and I told her this would not be a typical lawyer consultation. Rather than focusing solely on legal issues during our initial meeting, we agreed we would open up the floor - any topic about forming, building and growing her business would be fair game. As a result, we talked at length about everything from what legal entity to form, to hiring and incentivizing employees, to pricing her product, and marketing. It was like a legal consultation, consulting review, and a business coaching session all wrapped into one. You know what? That was exactly what she needed. And the client went away more satisfied than she would ve been had we focused solely on her strictly legal questions. Lawyers often think they don t or shouldn t have any role beyond giving their clients legal advice. As if giving their client any other form of advice isn t allowed. But there s nothing wrong with lawyers giving their business clients smart, savvy business advice which isn t typical legal advice. In fact, most lawyers with business clients are uniquely qualified to give strategic business advice. They see what works. They see what doesn t. They see the same mistakes over and over again. Lawyers should be counselors in the full sense of the word. They should give their clients legal advice first and foremost, but they should also not hesitate to weigh in with wise counsel about what it takes to build a successful business. The truth is many entrepreneurs and business owner clients (particularly small businesses) really appreciate and value words of wisdom which will help their business grow. As long as you recognize the limits of your own expertise, you can deepen your relationship with your clients by being a true counselor to all their needs and questions. Here are a few great ways lawyers can provide extra value to business clients: Introductions to Other Clients As the old saying goes, relationships make the world go round. One of the most valuable things you can give your clients, even if you don t charge for it, is introductions. Offer to introduce two clients who may have overlapping interests. If they show an interest, offer to take them both to drinks, lunch, dinner, or even a more informal outing like golf or a baseball game (Go Pacifics!). You will learn more about your clients businesses and they will probably be very grateful. Coaching It s OK to be a coach for your clients. Every business owner needs coaching from time to time. Unlike a consultant, a coach does not supply all the answers. Your role is to question assumptions and hold the client accountable - and I think most attorneys are well qualified to handle both of these duties. Strategic Long-Range Advice Offer to meet with a few of your better (read: more profitable) clients once a year for a special long-range planning session without charge. You will learn more about their business and be able to alert them to legal issues on the horizon. Package Your Expertise as a Bonus Which You Give for Free (Continued on page 11.) A. MAGGI SAUNDERS & ASSOCIATES CERTIFIED SHORTHAND REPORTERS Serving the Entire Bay Area since (office) (mobile) maggisaunderscsr@neteze.com In a deposition, the Court Reporter is your biggest asset Lowest Per Page Rate - Delivered in One Week No Premium rates for Doctors, Expert Testimony, Evening or Weekend Depositions Free Condensed transcripts, ASCIIs, CDs, Translators, Video Depositions, Free Conference Room Member: National Court Reporters Association & SFTLA Multiple References upon request, UCLA Graduate with Honors And Mom to a talented young actor Labor & Employment, Civil Rights, Medical Malpractice, Complex Personal Injury, Construction Defect, Product Liability, Commercial Business The best court reporter always gets the last word! 7

8 8 THE ETHICS CORNER By Francine Ward Ethical Opinion Does an attorney commit an ethical violation merely by obtaining or using overdraft protection on a Client Trust Account? What are an attorney s ethical obligations when a check is issued against a Client Trust Account with insufficient funds to cover the amount of the check? Must an attorney immediately withdraw earned fees once funds deposited into a Client Trust Account have become fixed in order to comply with the attorney s ethical obligations? Digest: 1. An attorney does not commit an ethical violation merely by obtaining or using overdraft protection on a Client Trust Account, so long as the protection in question does not entail the commingling of the attorney s funds with the funds of a client. Overdraft protection that compensates exactly for the amount that the overdraft exceeds the funds on deposit (plus funds reasonably sufficient to cover bank charges) is permissible, whereas overdraft protection that automatically deposits an amount leaving a residue after the overdraft is satisfied is not. In all cases, banks must report to the State Bar any presentment of a check against a Client Trust Account without sufficient funds, whether or not the check is honored. Although overdraft protection will not avoid State Bar notification, nor exculpate any unethical conduct that caused the overdraft, it may avoid negative consequences to a client resulting from a dishonored check. 2. When a check is issued against a Client Trust Account with insufficient funds to cover the amount of the check, an attorney must deposit funds sufficient to clear the dishonored check or otherwise make payment, must take reasonably prompt action to ascertain the condition or event that caused the check to be dishonored, and must implement whatever measures are necessary to prevent its recurrence. In addition, if a client will experience negative consequences from the dishonoring of the check, the attorney may have to advise the client of the occurrence. 3. An attorney must withdraw earned fees from a Client Trust Account at the earliest reasonable time after they become fixed in order to comply with the attorney s ethical obligations, but need not do so immediately. AUTHORITIES INTERPRETED: Rule For the full opinion, See x?fileticket=yb8mmw0jzuc%3d&tabid=838. Politically Incorrect: Music on the Campaign Trail By Elizabeth J. Rest With election season in full swing, candidates are increasingly attempting to connect with the public using cultural mediums, such as popular music. However, even with the teams of lawyers protecting them, politicians are repeatedly confronted with cease and desist efforts, and sometimes even litigation, from musicians whose songs are being used during live campaign events without permission. Use of recorded music during a campaign stop can expose a candidate to a myriad of issues, including liability for copyright infringement, trademark infringement or dilution, false endorsement, and/or right of publicity violations. In this political season alone, the following disputes have arisen: (1) Newt Gingrich was sued by a former member of the band Survivor for Gingrich s use of Eye of the Tiger during public campaign events in violation of the band s copyright (the parties settled, Gingrich apologized, and promised never to use the song again); (2) the band The Heavy demanded that Newt Gingrich stop using their song How You Like Me Now? on the campaign trail, claiming Gingrich s use of the song violated their copyright and created a false endorsement (Gingrich agreed to stop using the song); (3) the Silversun Pickups demanded that Mitt Romney s campaign stop using their song Panic Switch at events and creating a false endorsement (Romney s campaign says that they had the correct license, but agreed not to use the song anymore); (4) Rapper K Naan demanded that Mitt Romney stop using his song Wavin Flag during speeches, complaining Romney s use tarnished his brand and created a false endorsement of the candidate (Romney s campaign agreed to stop using the song); (5) Tom Petty sent Michele Bachmann a cease and desist letter after she used American Girl when announcing her presidential campaign (the Bachmann campaign generally ignored Petty s demands; however, Petty s demands became moot once Bachmann withdrew from the race); (6) Katrina and the Waves demanded that Michele Bachmann stop using their song Walking On Sunshine, claiming it created a false endorsement (the demand became moot once Bachmann withdrew); and (7) Dee Snider of Twisted Sister denounced Paul Ryan for using the song We re Not Gonna Take It at a campaign event, saying he did not agree with Ryan s politics and Ryan s use of the song falsely implied an endorse- (Continued on page 9)

9 (Politically Incorrect, continued from page 8.) ment (the Ryan camp agreed to stop using the song). In order to understand why politicians are consistently faced with these legal claims, and to protect against them, it is helpful to have a general understanding of the various legal doctrines that are implicated by the use of recorded music at live political events. Copyright: The most common complaint by artists is that a political campaign is using their music in violation of their copyrights. In very general terms, copyright protects original creative works of authorship that are fixed in a tangible medium of expression. 17 U.S.C A copyright grants the author a bundle of exclusive rights, including the right to perform the copyrighted work for the public. 17 U.S.C A recorded song implicates two distinct copyrights: (1) a copyright in the underlying musical composition (i.e., the music and lyrics); and (2) a copyright in the sound recording. Often these rights are owned by separate individuals or entities. For instance, there is a copyright in the musical composition All Along the Watchtower, which is owned by Bob Dylan, the original author of the music and lyrics. There is also a copyright in each sound recording made of the song by musicians such as Bob Dylan, Jimi Hendrix, U2, and the Indigo Girls, to name just a few. Thus, in order to use a recorded song e.g., to play the song publicly one must obtain permission from both the owner of the musical composition copyright, and the owner of the copyright in the sound recording of the version one wishes to use (with some limited exceptions). Of course, we have all been in restaurants, bars, retail stores, sports arenas, hotel lobbies, and other public venues where music is playing in the background. It would be impractical, if not entirely impossible, for owners of these establishments to procure licenses from each and every copyright owner of the songs they wish to play. Thus, owners of establishments that wish to publicly 1 perform copyrighted music may obtain a public performance license from one (or all) of the performance rights organizations (PROs). 2 The PROs grant blanket licenses to public establishments, collect royalties for the use of music in public venues, and pay these royalties to the copyright owners. In other words, with the payment of one license fee, a PRO license allows the licensee the right to publicly perform 3 any of the musical works in that PRO s repertory 1 A performance is considered public if it occurs either in a public place, or at any place where people, other than a small circle of a family or social acquaintances, gather; this could include a private home. 2 In the U.S., the three major PROs are the American Society of Composers, Authors and Publishers (ASCAP), Broadcast Music, Inc. (BMI), and the Society of European Stage Authors & Composers (SESAC). 3 Note that if one wanted to use a song in a political campaign advertisement to be seen on television or the Internet, for example, a PRO license would not cover that type of use. PRO licenses are only for public The Marin Lawyer without having to incur the time, expense, and burden of negotiating with each of the separate copyright owners. It is important to note, though, that a PRO license does not cover all uses of all music publicly performed at a venue. For example, a sporting arena may have PRO licenses that cover all events that occur at that location. More likely, however, venues will procure more limited (read: less expensive) licenses, covering only specific events. For example, the Oracle Arena in Oakland may have PRO licenses to perform recorded music during Warriors, A s, and Raiders games. However, those licenses may not allow recorded music to play during the numerous other events held at the Arena. For those other events, in order to play recorded music, the promoters or organizers are responsible for procuring their own separate PRO licenses. Also, significantly, as a general rule, blanket public performance licenses for convention centers, arenas, and hotels specifically exclude music use during conventions, expositions, and campaign events. Thus, in order for a political candidate to use recorded music during a campaign stop, it would be the responsibility of the campaign organizers to obtain performance licenses from all of the PROs prior to any such live campaign event. Based on the (to a live audience) performances of recorded music. A license from the owner of the musical composition, and a synchronization license from the master sound recording copyright owner would be required in order to create an audio-visual advertisement. (Continued on page 12) Construction and Real Estate Commercial and Residential Landlord/Tenant Business Disputes and Litigation Employment Bodily Injury Phil Diamond is a talented, hard working mediator, who is committed to shepherding all matters through to resolution. His wide-ranging mediation and civil litigation experience includes: Professional Liability Insurance Product Liability Wills and Trusts General and Toxic Torts Investor Claims 4040 CiviC Center Drive, Suite 200, San rafael, Ca Telephone: (415) Fax: (415) phil@diamonddisputeresolution.com Website: 9

10 Marin County Bar Association & the Marin County Women Lawyers Presents The Fifth Annual CLE Fair 5 hours MCLE Credit FRIDAY, November 16, 2012 At the Embassy Suites, 101 McGinnis Parkway in San Rafael, from 8:45 am to 2:45 pm BREAKFAST AND LUNCH INCLUDED MCBA Members $ EARLY BIRD registration until Nov. 5th $ MCBA Members beginning Nov. 6, 2012 / $ for Non-MCBA Members Ethics, Substance Abuse, and Elimination of Bias are included in a possible 5 hours of CLE credit among 16 presentation choices plus a special luncheon program Lunch with the Judges: The Best and Worst of Trial Lawyering as Seen in Film and Art. featuring the Honorable Paul Haakenson and the Honorable James Ritchie. The classes are organized into three one-hour morning sessions, one afternoon session (choice of four seminars each hour), and the one-hour luncheon program. For detailed information about the classes and speakers, please visit or contact us at UNITS OF MCLE CREDIT This program has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of five (5) hours of credit; individual courses have been approved for elimination of bias, substance abuse and legal ethics credit as indicated in the program materials. The Marin County Bar Association, as an approved provider, certifies that this activity conforms to the standards for approved education activities prescribed by the rules and regulations of the State Bar of California governing minimum continuing legal education. State Bar provider #411. Seating Limited. To register, please fill out the form below and mail it, with your check payable to the Marin County Bar Association, 101Lucas Valley Road, Ste. 326, San Rafael, California, 94903, or register online at Name: Phone: Pick one session per time slot (please note, space is limited and we may contact you for a second choice): 8:45am-9:45am: The Art of Effective Mediation Advocacy (Jerry Spolter) (1 Hour General); Social Media A Tools for Lawyers (Panel of Experts) (1 Hour General); Software Solutions for Litigators (1 Hour General); Top 10 Professional Responsibility Traps for the Unwary (1 Hour Ethics). 10 am-11 am: Effective Opening Statements at Trial (Skip Walker) (1 Hour General); Social Media B Ethical Considerations and Landmines (Panel of Experts) (1 Hour General); Unconscious Bias in the Law: Recognize the Signs (In Yourself and Others) (Michael Roosevelt) (1 Hour Elimination of Bias); Top 10 Professional Responsibility Traps for the Unwary (1 Hour Ethics). 11:15 am-12:15 pm: Lies and Spotting the Liars Who Tell Them (Clark Freshman) (1 Hour General); Substance Abuse in the Legal Profession (Jerry Braun) (1 Hour Prevention, Detection and Treatment of Substance Abuse); Unconscious Bias in the Law: Recognize the Signs (In Yourself and Others) (Michael Roosevelt) (1 Hour Elimination of Bias); Winning Appeals What Makes the Most Appealing Briefs and Arguments (Myron Moskovitz)(1 Hour General). 1:45 pm-2:45 pm: Substance Abuse in the Legal Profession (Jerry Braun) (1 Hour Prevention, Detection and Treatment of Substance Abuse); The Collaborative Law Process: New Perspectives in Family Law Dispute Resolution (Panel Discussion) (1 Hour General); Stress Relief for Frazzled Lawyers (Robert Rosborough) (1 Hour Prevention, Detection and Treatment of Substance Abuse); Marin County s New Discovery Facilitator Program (The Honorable Roy Chernus) (1 Hour General). 12:30 pm-1:30pm Lunch Presentation: Lunch with the Judges (1 Hour-General) Lunch choices: Asian Chicken Salad Grilled Petite Salmon Salad Vegetarian Sicilian Pasta Salad Check enclosed for $ or please bill my VISA or MasterCard Account No. Exp. Security Code ONLINE REGISTRATION at 10

11 (General Membership, continued from page 1.) of California at Santa Barbara where he was also a threetime NCAA All-American volleyball player. He went on to play for the USA Volleyball Team in 1987, when the team was ranked #1 in the world, before attending and graduating cum laude from Boston College Law School. Please register for this exciting program by completing and returning the reservation form on page 2. (President s Message, continued from page 1.) the real message is to pick whatever moves you and act. Here some possibilities: Volunteer for or Give to One of Our Profiled Non- Profits. So far this year we ve profiled in The Marin Lawyer eleven worthy charitable organizations that do good and meaningful work. I hope you have read and enjoyed the profiles, and maybe even made a donation of time, goods or money as a result. The following link on our website has all of the profiles to date including information on ways you can get involved: org/?event=community.giving. Take a Pledge to Support LGBT Equality. Spectrum LGBT Center (the non-profit profiled in the September issue of The Marin Lawyer) has created a pledge that it is asking the business community to sign in support of LGBT equality. I m proud to report that the MCBA, following unanimous board action and an overwhelming membership vote of 93% in favor of the action, has taken the Spectrum LGBT Equality Pledge already. My own firm was an early signer of the pledge, and I encourage you to read the pledge (go to and to consider joining this important local movement to support equality. Be a Youth Court Judge. Youth Court is a terrific juvenile justice program we are lucky to have here in Marin, and it relies on volunteer attorneys to act as judges. For more information about Youth Court, please see the Marin Superior Court at org/therapeutic_youth_court.htm or contact Don Carney at dcarney@ymcasf.org, or Allison Fabian at (415) or afabian@ymcasf.org. You can also check out the YMCA web page at for_teens/civic_engagement. Volunteer for Community Court. Community Court is a once-a-month court for homeless defendants held at St. Vincent de Paul Dining Hall, and lawyer volunteers are needed to provide assistance to the defendants during the court sessions. For information, see the article at or contact Maura Prendiville at Legal Aid of Marin at (415) ext. 303 or mprendiville@legalaidmarin.org. Help Plan the Future of the Marin County Law Library. A focus committee is being formed to help plan for the law library s future and a likely expansion of the library s services. See the article entitled Marin County Law Library News and 2014 Strategy in this issue for more information, and please contact Ben Gale at bengalelaw@yahoo.com or (415) to ask questions or volunteer. Join a Focus Committee on Expanding Restorative Justice in Marin County. A focus committee is being formed to help determine whether and how to expand the successful restorative justice efforts in juvenile matters in Marin to certain types of adult criminal matters. See the article entitled Restorative Justice: An Opportunity to Make A Difference by Charles Dresow in this issue for more details, and please 2012RJMCBA@gmail.com if you are interested in getting involved. Volunteer for the Court. There are lots of ways to volunteer to assist the Court, including as a discovery facilitator, a pro tem judge, a settlement panelist, or a volunteer mediator or attorney in a family law pro per matter. Please contact Norma Johnson at norma_johnson@marincourt.org for more information or to volunteer. Get Involved in a Bar Committee. See the enclosed application for more information. And of course, Legal Aid of Marin and Family and Children s Law Center are great ways to use your legal skills to help others in need. I suspect I could take up a full issue of this newsletter describing good and rewarding ways to give back to our local community and I d still miss important causes and organizations. We all have our own ways of giving. So I will just end with this: whatever moves you, whether these opportunities or others, I encourage you to give back to the community in this month of thanks when we pause to express our gratitude. Happy Thanksgiving! (Extra Value, continued from page 7.) One great way of providing extra value to your clients is by turning your knowledge, experience and expertise into electronic products that you give as a bonus to your clients. You can afford to spend a few hours writing an ebook or creating a few videos that explain the most common issues which your target clients tend to face. When you meet with a new potential client, you can tell them you have this special bonus you give all your clients for free. They will appreciate the value of getting this bonus and it will differentiate you from other lawyers. It isn t difficult to give business clients extra value that will make them appreciate their relationship with you. And doing so will make them a lot happier when it comes time to pay your big bill at the end of the month. John Corcoran advises entrepreneurs, business owners and real estate investors. He can be reached at jcorcoran@johncorcoranlaw.com or (415) He blogs at 11

12 SIGN UP NOW TO SERVE ON AN MCBA STANDING COMMITTEE To: Members of the Marin County Bar Association From: President-Elect Joel Gumbiner Re: 2013 Standing Committees Each year your Marin County Bar Association seeks members to serve on its standing committees. Committees cover all types of activities such as innovating new legal education opportunities for members, liaisons to the Marin Bench, oversee client fee arbitrations, monitor and comment on new legislation, create community service and outreach opportunities for members, and many other functions of the MCBA. Members who participate in committees meet and work with other members, make professional connections, network and provide a valuable service to the Bar, Bench and the public. Committee functions are described at Exhibit A of the MCBA Bylaws: Current committee members are found at marinbar.org: The President appoints the chairperson of each Committee for a one-year term and the committee members for three-year terms. Please give serious consideration to volunteering your time this year to chair or serve on a committee. Just mark up to three committees on this sheet in your order of preference. If you have no preference, but are willing to serve, please so state. Committee appointments will be made in January Please return this form to MCBA no later than December 28, 2012 by mail to 101 Lucas Valley Road, Ste. 326, San Rafael, CA 94903; by FAX (415) ; or by rgaspar@marinbar.org. If you have any comments or suggestions regarding Bar activities, please contact me personally or use the comment lines below. I thank all our members for their continued support and service. Bylaws Client Relations Ethics Judicial Fairness Legislation MCBA Legal Education Scholarship Pro Bono Committee Bench Bar and the Administration of Justice Continuing Legal Education Judicial Evaluation Lawyer Referral Service Library Membership & Member Benefits Program Public Outreach 12 Name: Comments:

13 (Politically Incorrect, continued from page 9.) numerous artist complaints, it appears this requirement is often overlooked. Trademark and False Endorsement: Many campaigns take the position that if they buy a PRO license they are allowed to play any song they want without seeking approval from the artist. However, despite holding a PRO license, a candidate may be liable for trademark infringement, dilution, and/or false endorsement where use of an artist s work at a campaign rally implies that the artist supports or endorses that particular candidate. The Lanham Act protects against consumer confusion caused by a mark s unauthorized use. 15 U.S.C The Act also protects against the dilution of famous trademarks, such as band or artist names, caused by the famous mark s unauthorized use. 15 U.S.C Musicians often argue that if fans hear their song played at a particular political event it could hurt their brand, causing trademark infringement or dilution. For instance, the rapper K Naan argued that Mitt Romney s use of his song would confuse his fans into thinking that he endorsed Mr. Romney, which endorsement would hurt his brand because he supports President Obama. Additionally, the Lanham Act protects against false endorsement, which occurs when a person s identity is connected with a product or service in such a way that consumers are likely to be misled about that person s sponsorship or approval of the product or service. 15 U.S.C Other than allegations of copyright violations, this is by far the most common artist complaint about politicians unauthorized use of their music. For example, the band Silversun Pickups demanded that Mitt Romney s campaign stop using their song Panic Switch at events, alleging that Romney s use falsely implied an endorsement of the candidate by the band. The front man of the band made a public statement denouncing Romney s politics and the campaign s use of their song without permission, and saying: We re nice, approachable people. We won t bite. Unless you re Mitt Romney! Rights of Publicity: If a political campaign adopts a particular song, and plays it so much that it becomes associated with the candidate, the performers of that song may also have a claim for violation of their right of publicity. In California, one s right of publicity is governed by Civil Code In very general terms, the right of publicity statute dictates that any person who uses another s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling goods or services, without that person s consent, is liable for damages. Thus, when a campaign adopts a song as its theme song, musical artists usually assert violations of their right of publicity, claiming that their image is being used to endorse a candidate, i.e., a product. For instance, when Michele Bachmann adopted Tom Petty s song American Girl as the theme song for her Presidential campaign, Tom Petty arguably had a valid claim for violation of his publicity rights. In every election, large and small, politicians are faced with the same complaints from musicians who were not consulted prior to the unauthorized use of their music during live campaign events. Remember, the foregoing laws regarding the use of recorded music in political campaigns are not just applicable in national, or even state, elections. If you are running for political office, or if you are representing a client who is, even if it is a local town or city office, you must always be cognizant of artists rights when using recorded music in a public setting. Elizabeth J. Rest is an attorney at Hiaring + Smith LLP in San Rafael. Elizabeth s practice is focused on representing clients in entertainment, sports, trademark, copyright, rights of publicity, business entity formation, and in all aspects of the creation, licensing, exploitation, and distribution of intellectual property. Elizabeth is a member of the State Bar of California Intellectual Property Law Section Executive Committee, and serves as the Chair of the Entertainment and Sports Law Interest Group of the California Bar s Intellectual Property Law Section. To contact Elizabeth: elizabeth@hiaringsmith.com Mediation offices of Steven RoSenbeRg Highly effective and skilled mediation services for Commercial Real Estate Employment Probate Family Law Personal Injury Mr. Rosenberg has practiced law for over 30 years. He is an adjunct Professor of Law at Usf, an approved consultant for the academy of family Mediators and was chair of the Marin county Bar adr section. He is a member of the mediation panels for the U.s. district court, nasd, and all Bay area trial & appellate courts. References available upon request. 775 East Blithedale Avenue, #363, Mill Valley, CA RosenbergMediation.com 415/

14 New Members Deborah Dubroff Law Offices of Deborah Dubroff 1300 Clay Street, Suite 820 Oakland, CA Fax: John P. Mason Clapper, Patti, Schweizer & Mason 2330 Marinship Way, Suite 140 Sausalito, CA Fax: Barry Kevin Matson Clapper, Patti, Schweizer & Mason 2330 Marinship Way, Suite 140 Sausalito, CA Fax: Steven J. Patti Clapper, Patti, Schweizer & Mason 2330 Marinship Way, Suite 140 Sausalito, CA Fax: Christine Renken Clapper, Patti, Schweizer & Mason 2330 Marinship Way, Suite 140 Sausalito, CA Torch Sathienmars th Ave. #3 San Francisco, CA Calendar Details Nov. 16 th Fifth Annual CLE Fair, 8:45 am 2:45 pm Nov. 19 th General Membership Meeting, Four Point Sheraton, San Rafael, 12-1:30 pm Nov. 21 st ADR Section Meeting Stephen H. Sulmeyer, JD, PhD, will be the speaker at the November meeting of the ADR Section. The subject of the discussion will be Mediating in the Shadow of the Heart: Integrating Intellectual and Emotional Intelligence in Dispute Resolution. The Section will also conduct the annual election for officers for the coming year. Location: TBD, 1 Hour CLE Contact Info: Mike Malone mgmalone@comcast.net 12-1:30 pm December 13 th Holiday Party, Save the Date! Deadline for submission of articles, ads, inserts, and announcements is the 15th of each month. Thank you. change of scene Jo Anne Fabian 8 Oak Grove Dr., #206 Novato, CA Karolyn Plummer Poppin Law Office of Karolyn Plummer Poppin 336 Bon Air Center, #106 Greenbrae, CA Fax: karolyn@poppinlaw.com Michael B. Samuels 27 Skyview Terrace San Rafael, CA Fax: samuelslaw@comcast.net Serving the Greater Bay Area The Premier ADR Firm Please check our website for our Summer Special! 14

15 David Hellman Marin Bar ad 2008 THE MARKETPLACE Anyone wishing to advertise in the Marketplace should send their text ad to MCBA, 101 Lucas Valley Road, Suite 326, San Rafael, CA with payment of $40 per month, or you may to: The ad should be no longer than 25 words and paid in advance. For each additional word add $1. LITIGATION SECRETARY/PARALEGAL/EXECU- TIVE ASSISTANT 18 years experience Federal, State & Appellate Courts, fast, efficient, reliable - telecommuting/virtual assignments, word processing, motion/trial prep. Cynthia Thomas CynthiaT@plmcassociates.com LAW OFFICES IN CENTRAL SAN RAFAEL. One to three law offices in incredible historic Victorian building in central San Rafael. Conference room, off street parking and convenient 101 location. Telephone: ext 111. CLASS A OFFICE SPACE IN DOWNTOWN SAN RAFAEL. Private offices in newly remodeled suite at Courthouse Square available for month-to-month rental at $1,400 per month. Services include: receptionist, two in-suite conference rooms and access to building conference room, lunchroom, copy room, daily Marin court filing service, mail service, internet and new phone system. Covered parking, file storage, and WestlawNext also available. If interested please amcgovern@keeginharrison.com CLE COMPLIANCE 2013 GROUP 2 (A - G) Period: 2/1/2010-1/31/2013 Deadline:2/1/2013 MCLE Regular Requirement [Rule 2.72] Total hours required every three years: 25 hours Maximum self-study hours: 12.5 hours Members must fulfill at least one-half of their MCLE requirement with activities approved for participatory MCLE credit. Special Requirements within the total hours required (may be taken as participatory or self-study): Legal Ethics: 4 hours (required) Detection/Prevention of Substance Abuse or Mental Illness: 1 hour (required) Elimination of Bias in the Legal Profession: 1 hour (required) Use the 1031 Exchange Intermediary Other Intermediaries Call for Advice! David Hellman, 1031 Exchange Expert at MARIN COUNTY EXCHANGE CORPORATION A Qualified Intermediary Providing Real Estate Exchange Services and Expertise with over 3,000 Exchanges facilitated since David M. Hellman, President TEL: (415) Attorney & CPA FAX: (415) Mission Statement of the Marin President OTIS BRUCE, County JR Bar Association President-Elect JESSICA To KARNER involve, encourage, and support Secretary ELIZABETH BREKHUS bar association members, to Treasurer serve as a liaison to the Marin County courts, JOEL GUMBINER Past President and to educate the community and BETH JORDAN enhance access to legal services. 5 Year Past President LEONARD A. RIFKIND Drunk Driving and DMV Matters Paul Burglin MItChell, hedin, BreIner, ehlenbach & BUrglIn Courthouse Square 1000 Fourth St., Suite 570 San rafael, Ca (415) Author: Calif. Drunk Driving Law A-V Rated - Martindale Hubbell TM Board Certified in DUI Defense 15

16 Marin County Bar Association 101 Lucas Valley Road, Suite 326 San Rafael, CA published by The Marin County Bar Association Fax MCBA Officers Jessica Karner President Joel Gumbiner President Elect Elizabeth Brekhus Treasurer Randy Wallace Secretary Otis Bruce, Jr. Past President Matthew N. White 5 Year Past President Board of Directors David I. Brown Paul Cohen Charles Dresow Riley Hurd Lisa Spann Maslow Barbara Monty Pedro Oliveros Jessica Pliner Dorothy Proudfoot Kate Rockas Scott Rogers Barrett Schaefer Eric Sternberger Lawrence Strick Francine Ward Executive Director Robynn Gaspar Production Express Printing Advertising Pat Stone Printed on recycled paper with vegetable oil based inks. MCBA encourages submission of articles that may interest the legal community. Letters to the Editor are also welcome and may be published if space permits. Submissions will not be returned. The Editor reserves the right to publish, decline to publish, edit or otherwise modify any submission. Editorial material should be sent to the Marin County Bar Association at the above address. The Marin Lawyer FIRST CLASS U.S.POSTAGE PAID permit #51 Rohnert Park california Dated Material 16