The Marin Lawyer. An Official Publication of the County Bar Association An Official Publication of the Marin County Bar Association

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1 The Lawyer The Marin Lawyer An Official Publication of the County Bar Association An Official Publication of the Marin County Bar Association August 2008 Volume 39, Issue 8 PRESIDENT S MESSAGE The November Ballot Proposition Puzzle By Edward S. Berberian This November Californians will again face a number of state propositions that can have a long term effect on how we live our lives or speak to how we regulate the lives of others. There will be twelve ballot propositions, six of which directly speak to these issues. These six are: Proposition 4, Waiting Period and Parental Notification Before Termination of Minor s Pregnancy, a Constitutional Amendment; Proposition 5, Nonviolent Offenders. Sentencing, Parole and Rehabilitation Statute; Proposition 6, Criminal Penalties and Laws. Public Safety Funding Statute; Proposition 8, Limit on Marriage a Constitutional Amendment; Proposition 9, Criminal Justice System. Victims Rights, Parole a Constitutional Amendment Statute; and Proposition 11, Redistricting, a Constitutional Amendment and Statute. Several of these could touch on areas of our practice of law particularly in the practice of criminal law, and perhaps to some extent our family law practice. It appears that every election year brings a number of voter initiatives/ propositions before the electorate. Whether these are true populist ground swells or undertakings by those with a vested interest in getting certain legislation on the books can be debated, and often is. Regardless of the motives of the authors it is very important that the electorate look very carefully at what the proposed statutes or constitutional amendments address and what the im- (Continued on page 8.) Calendar of Events Aug 5 th Barristers Social Nickel Rose, 3rd and B, San Rafael RSVP to Scott Lafranchi 5:30 pm Aug 20 th Probate & Estate Planning Section Meeting 750 Lindaro St., The Tamalpais Rm, San Rafael 12 1:30 pm August 24th MCBA Goes to the Ballpark (AT&T Park) 1:05 PM Game SF Giants vs. San Diego Padres RSVP to Robynn ASAP if you want to come cheer for the Giants! Aug 25th Probate & Trusts Mentor Group 802 B ST., San Rafael, 12 1:30 pm SAVE THE DATE! Sept. 19 MCBA s Second Annual Golf Tournament Nov. 15 MCBA CLE Fair In This Issue To Blog or Not To Blog...2 Of Counsel Liability... 3 Marin County Jury Verdicts... 4 Wait and See Policy Nominating Committee... 6 Nominating Committee Application... 7 New Members Change of Scene The Marketplace Louis S. Franecke was Guest Editor of this issue of The Marin Lawyer. Philip R. Diamond is Series Editor for PULMINARY EMBOLISM CAUSED BY BLOOD CLOTTING ON AIRLINE FLIGHTS: A Legal Perspective By Louis S. Franecke, Esq.* Recently, a London-based newspaper, the Observer, under the headline Long Haul Hell, alleged that the scale and seriousness of Deep Vein Thrombosis (DVT) or Economy Class Syndrome resulting from long airplane flights has been known to airlines for at least 30 years. In fact, this syndrome was first described during World War II when prolonged, cramped sitting in Air Raid Shelters during the London Blitz was frequently followed by cases of Pulmonary Embolisms. 1 The first correla- (Continued on page 8.) 1

2 TO BLOG OR NOT TO BLOG: That Is the Question By Rebecca Porter* A blog is the unedited voice of a sin gle person, said John Palfrey, executive director of the Berkman Center for In ternet & Society at Harvard Law School. It s relatively off-the-cuff and occasionally reflective. Blogs are personal, but publicly ac cessible, Web pages on which the own er posts journal entries by date, dis cussing his or her topic of choice. Palfrey s blog discusses the emerging area of Internet law. 1 It resides on Har vard s server, which currently hosts about 550 blogs. That number reflects the soaring popularity of these online glimpses into the inner thoughts of strangers. In early 2004, the Pew Research Cen ter estimated that of the 53 million U.S. adults using the Internet, about 2 percent (1.06 million) post blogs, and 11 percent (5.8 million) read them. 2 According to other estimates, as many as 8 million Americans blog. 3 So-called blawgs use this format to focus on legal topics. 4 Blawg writers, generally lawyers or other legal professionals, express their thoughts about a subject of interest in a few para graphs unlike traditional law journal - or brief-writing, but with a similar aim of analysis and assistance. Most posts include links to court opinions, articles for further reading, or other online in formation. Most blogs are updated fre quently and arranged in chronological order, with the most recent additions at the top. Time-pressed lawyers are increasing ly turning to blogs to keep abreast of the latest legal news in areas that interest them. One reason why lawyers like blogs is that they provide timely information (such as links to legal news events or court decisions), but with commentary from the blogger. If the lawyer is knowl edgeable in the area being discussed. his commentary carries additional weight or perspective, said Ernest Svenson, who writes the widely read blog Ernie the Attorney. 5 You can read a blog by going to its In ternet address. But when your interest broadens past. say, SUV rollovers to in clude Seventh Circuit opinions, vege tarian cooking, and basset-hound breed ing, you may find yourself visiting dozens of blogs daily. Then a news ag gregator can save you time. Posts of interest come to you without your having to go to all the specific blogs. It s not like receiving mes sages that you have to sort through to pick out the pertinent things, said Den nis Kennedy, a computer lawyer and le gal technology consultant who writes a tech-focused blog. 6 One danger of this system, Kennedy said, is that it makes it possible for blog readers to get what he calls The Daily Me. By using a news reader to collect only certain 2 posts, readers can guaran tee that all of it agrees with my world view, which makes me a smaller person if I read only things that I agree with. Sole or small-office practitioners who don t have other lawyers down the hall to act as sounding boards for ideas can substitute the blog community. I find it rewarding to be in the midst of a conversation about issues I care about, communicating with other law yers, students, and colleagues, said Pal frey. The best bloggers work in something of a public system and believe a strong, democratic community is about having a robust debate. Lawyers like the opportunity to speak freely about things that they be lieve in. And apparently a lot of nonlawyers like reading stuff that lawyers write that is more down-to-earth than formal legal writing, said Svenson. Trial lawyers need all the help they can get to improve their image, said Kennedy. When people come in contact with the law and lawyers, it can be in an unpleasant situation. To the extent that trial lawyers can explain the process through blogging, that s a really good thing. Getting Noticed Lawyers who jumped on the Web site bandwagon to establish a presence on the Internet can also use blogs to make themselves known. Unlike static Web sites with content that has to be recod ed and reloaded with every change (re quiring staff time or a budget for hiring help), blogs easily accept new informa tion. A lawyer can use a blog to write and share opinions, gain an audience, and establish expertise in an area sim ply by writing a short update every few days and clicking a button. Since Internet search engines seek out and constantly categorize new in formation, frequently updated blogs get attention. To obtain information about someone, most people first enter the person s name in Google. If the person has a current blog, it will be one of the first things to turn up. Even if I update only twice a month, that heightens my visibility in search en gines and gets my name out there, said Carolyn Elefant, who writes MyShingle for and about sole practitioners and small-firm attorneys 7 ; she also maintains a blog on offshore renewables, one focus of her (Continued on page 10.) Serving the legal community of Marin since 1965 MARIN PACIFIC COMPANY.INC. General Insurance Brokers and Agents PROBATE BONDING Fourth Street Daniel C. 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3 OF COUNSEL LIABILITY By Thomas P. Sukowicz* Lawyers associate with each other to provide legal services in a variety of ways. Lawyers use the term of counsel with increasing frequency to denote relationships between attorneys and law firms. Although traditionally the term was used to designate semi-retired lawyers who desired to maintain a regular association with a law firm for which they were previously full-time attorneys, now it is often used to designate other kinds of relationships between lawyers and law firms, or between two law firms, such as: permanent full-time practitioners who are not on the traditional career path toward partnership in the firm; part-time affiliates of a firm who have other personal or professional commitments; potential partners brought into a firm for a probationary period; someone between a partner and associate; or retired partners. Definition ABA Formal Advisory Opinion defined of counsel as a close, regular, personal relationship. It is a relationship which is neither that of a partner (or its equivalent, a principal of a professional corporation) with the shared liability and/or managerial responsibility implied by that term; nor, on the other hand, the status ordi narily conveyed by the term associate; which is to say a junior non-partner lawyer, reg ularly employed by the firm. Like most jurisdictions that have considered the question, the California Supreme Court adopted the ABA definition of close, regular, personal, and continuous. In discussing this aspect of the of counsel rela tionship, the court noted the essence of the relationship between a firm and an attor ney of counsel to the firm is the closeness of the counsel they share on client matters. People ex rel Department of Corrections v. Speedee Oil Change Systems, Inc. (1999) 20 Cal.4th Vicarious Disqualification According to the ABA Lawyers Manual on Professional Con duct (Bur. Nat. Affairs 1990), the prevailing view is that for purposes of disqualification, the of counsel attorney is con sidered to be affiliated with a firm so that the disqualification of one from representation must be imputed to the other. The State Bar of Georgia in its Formal Advisory Opinion No similarly concluded that because an attorney who is of counsel should have a close, regular, personal rela tionship with the affiliated firm, when an of counsel attorney would be required to decline or withdraw from multiple representations, no partner, associate, or other of counsel attorney of the prin cipal firm may accept or con tinue such employment. The California Supreme Court came to the same conclusion in Speedee Oil, stating that for purposes of conflicts of interest and disqualifica tion, an of counsel attorney and the principal firm must be considered a single, de facto firm so that if one of them is precluded from a representation because of a conflict of interest, the other is presumptively precluded from the representation as well. Although the court in Speedee Oil noted that the of counsel attorney rented space in the firm s offices, talked frequently with its attorneys and discussed legal issues pertain ing to cases the firm was handling, it did not rely on those factors for its decision. Instead, it reasoned that because an of counsel relationship is close, personal, continuous, and regular, such a relationship justifies a presumption that client confidences will be disclosed and exchanged in informal consultations. Hence, the conflict of interest of one will be imputed to the other, with the consequence that disqualification must follow. The court further explained that, from the perspective of clients and mem bers of the public, the of counsel attorney can hardly be distinguished from other attor neys who may be more (Continued on page 12.) MILLSAP, DEGNAN & ASSOCIATES, INC. Cost Consulting Line Item Cost Break Downs Engineered Designs Expert Witness Testimony We provide design insights to meet your needs Redwood Hwy. San Rafael, CA office fax 3

4 4 MARIN COUNTY JURY VERDICTS By Steven Perl The Marin Lawyer will periodically report on jury verdicts from the Marin County Superior Court. We welcome reports from trial attorneys involved in Marin County verdicts; please contact Steven Perl with your information. Windsor v. Sausalito School District Complete Title of Plaintiff(s): Christina Windsor Complete Title of Defendant(s): Sausalito School District Case Number: CIV Insurance Carrier(s): NA Plaintiff Attorney(s)/Phone No(s): Amanda Metcalf, 415/ ; Jean Hyams, 510/ ; Peter Rukin, 415/ Defendant Attorney(s)/Phone No(s): Dennis Walsh, 818/ Plaintiff Doctor(s), Field, Address: NA Defendant Doctor(s), Field, Address: NA Plaintiff Expert(s), Field, Address: Margaret Golden (education) Defendant Expert(s), Field, Address: NA Judge: Hon. Lynn O Malley Taylor Date & Time of Incident: May 1999 September 2000 Type of Action: Wrongful termination in violation of public policy Location of Accident/Incident: Sausalito/Marin City Plaintiff(s): Age: Occupation: Educator Residence: Currently, Nebraska Facts of Case: This case involves a claim of wrongful termination brought by Christina Windsor, an African- American, against her former employer, the Sausalito School District. Ms. Windsor moved from Iowa to serve as a Principal of the District s two elementary schools beginning in July of The District terminated Ms. Windsor s employment in August Ms. Windsor claimed that the she was discharged because she objected to or refused to participate in activities that she believed were unlawful (race-based student disciplinary practices and other differential treatment of black and white students). The District denied Ms. Windsor s allegations and claimed that it terminated her employment because she refused to take a California credentials examination on the date the District had ordered her to take it. Plaintiff(s) Contention(s) as to Liability: that the district fired Plaintiff because she opposed unlawful conduct, including the disparate treatment of African American students. Defendant(s) Contention(s) as to Liability: See above. Length of Jury Trial: 5 weeks Jury Deliberated: Three hours Plaintiff Attorney asked the Jury to Award: $1,134,782 Defendant Attorney asked the Jury to Award: nothing Injuries/Damages: Plaintiff Doctor/Expert Stated: NA Defendant Doctor/Expert Stated: NA Residuals: N/A Specials/Damages: $134,782 in lost wages and $1,000,000 for emotional distress. Settlement Talks: Demand: $300,000 Offer: $25,000. Result: Defense verdict Poll Result: 10-2 Verdict Date: February 20, 2008 Providing Complete ADR Services! JUDGE MICHAEL J. BERGER* PATRICK M. BRODERICK JUDGE RICHARD H. BREINER* CLAYTON E. CLEMENT HON. JEANNE M. BUCKLEY* W. GREGORY ENGEL JUDGE VICTOR M. CAMPILONGO* HOWARD M. GARFIELD JUDGE THOMAS DANDURAND* PERRY D. LITCHFIELD JUDGE JOHN J. GALLAGHER* GARY T. RAGGHIANTI JUDGE ISABELLA H. GRANT* PAMELA M. SAYAD JUDGE INA LEVIN GYEMANT* MICHAEL D. SENNEFF JUDGE HADDEN ROTH* ERIC STERNBERGER JUDGE VERNON F. SMITH* GARY A. WEINER MATTHEW N. WHITE W. BRUCE WOLD Look for us on the *Retired Diane Levinson-Fass, President Diane Story, Vice Pres. For more information call: (800)

5 COURT SAYS INSURANCE COM- PANY S WAIT AND SEE POLICY VIOLATES CALIFORNIA LAW By Maria Pecot* Health insurance is on everyone s minds these days. It has become a focal point in the campaigns of the leading presidential candidates. A November 2007 Gallup Poll reported that 81 percent of Americans are dissatisfied with the cost of health care in the country and 73 percent of people thought that the American health care system was in a state of crisis or had major problems. Movies, like Michael Moore s SICKO, present frightening and disturbing worst-case scenarios where health-care companies have failed their insureds, with the result sometimes being suffering and death. Perhaps the most frightening aspect of health care in this country is that it s not just the poor and uninsured who are not getting proper health care. Middle class people and insured workers, who believe they have adequate coverage, are being denied access to health care by their poli cies, when they become sick or injured. Post-Claim Underwriting The practice of post-claim under writing - when an insurance company investigates a policyholder s application for omissions and inaccuracies, after a claim is filed - has been going on for a long time and is in violation of California law, says Bill Shernoff, a plaintiff s attor ney in Claremont who specializes in bad faith insurance law. As Shernoff contends, Health and Safety Code section clearly prohibits the rescission of a plan due to the plan s failure to com plete all medical underwriting and resolve all reasonable questions derived from written information on or within an application before issuing a contract. The law was designed to prevent people from losing coverage when they need it the most particularly because, once someone has a major medical prob lem on his or her record, it is nearly impossible to obtain a new policy. In recent years, there has been a surge of bad-faith insurance cases arising from post-claim underwriting. Despite the law, the courts have typically sided with defense attorneys who argue that post-claim underwriting is not the same as a post-claim investigation. Almost all cases having to do with post-claim underwriting are thrown out in the pre-trial phases. The Changes After Hailey California s 4th District Court of Appeal may have changed all that. In Hailey v. the California Physicians Service (Jan. 22, 2008, G035579) _ Cal.Rptr.3d _ [2008 WL ], the court ruled that health insur ance companies such as California Physicians Service, a subsidiary of Blue Shield, have to initially investigate whether consumers are eligible for poli cies, rather than collect premiums, and then wait until the policyholder files a claim. According to the Hailey ruling, insurance companies must prove that an applicant willfully misrepresented information on the application to rescind a policy. The case, which was previously dis missed by a lower court, involves Steve Hailey, a small business owner from Orange County, and his wife, Cindy. In 2001, Steve was involved in a major car accident. Initially, his medical bills were covered under a Blue Shield policy in which Cindy had enrolled him. Once his medical expenses reached $450,000, however, Blue Shield canceled his cover age and demanded that he repay over $104,000. Blue Shield accused the Haileys of omitting a slew of health problems from their application, and underreporting Steve s weight by about 50 lbs. Cindy, who filled the application out for herself, her husband and their teenage son, said the application did not ask about her husband and son s health histories, only her own. She said the lack of clarity in the application instructions led to the alleged omissions. The court agreed that Blue Shield s application was written in a way that could cause confusion. In an opinion written by Justice Richard M. Aronson, the court said the application, although understandable upon close examination and reflection, is no model of clarity, and lends credence to Cindy s explanation of her omission of Steve s health informa tion. (Continued on page 13.) is pleased to announce that Eric Sternberger has joined the firm as a partner. Mr. Sternberger will be establishing a corporate transactional department at the firm. He will continue representing Angel Investors and businesses as outside general counsel on all transactional matters, including contracts, mergers and acquisitions, joint ventures and succession planning. In addition, he will continue to maintain his mediation and complex business litigation practice. Mr. Sternberger is a Marin County native, a Director of the Marin County Bar Association, incoming President of the Richard M. Sangster American Inns of Court, and Chair for the Partnerships and LLC Committee for the Business Law Section of the State Bar of California. Ragghianti Freitas LLP 874 Fourth Street, Suite D San Rafael, CA (415) ; Fax (415)

6 2008 Nominating Committee The Marin Lawyer The 2008 Nominating Committee will be established per Section 2.3 of the Marin County Bar Association by-laws. Any members interested in becoming an officer or director for the year 2009 term must submit a written application. The application must be received by September 1, The form may be found on page 7 of this newsletter. The Nominating Committee will make its report of nominations for officers and directors at the September general membership meeting. At any time before October , any active member who was not nominated and who meets the required qualifications, may be nominated for any office to be filled by nomination in writing signed by at least 10 active MCBA members and presented to the MCBA Secretary. The final slate will be published in the October newsletter and on the MCBA website. The nominations will be voted on at our November general membership meeting. If there is more than one nominee for an office, the Board shall conduct a written secret ballot of the general membership by mail for each contested office prior to the November membership meeting. Personalized, Professional BUSINESS GREETING CARDS A cost-effective way to enhance your marketing efforts! Choose from... Building YOUR Business is OUR Business Introducing THE VIDEO BUSINESS CARD For a demonstration, visit our Web site at Client Retention and Referral Development Programs Client and Employee Appreciation Programs Invitations and Announcements Business Greeting Cards for all Occasions Birthdays Holiday greetings Thank yous Fulfillment / Mailing Services To learn more, please call (415) or visit our Web site at LAWYER REFERRAL SERVICE PANEL We need attorneys for our Lawyer Referral Service panels in the following areas: Tax, Workers Compensation, Juvenile, and Education. Contact: Jan at (415) for an application or more information. SAVE THE DATE MARIN COUNTY BAR ASSOCIATION S CLE FAIR MEDIATOR/ARBITRATOR GARY P. OSWALD Extensive Experience in Real Estate Disputes Construction Defects Neighbor Disputes Common Interest Tree Disputes Subdivision Disputes 35 Years Litigation Experience Mediator/Arbitrator - 15 Years Real Estate Law Instructor, College of Marin Martindale Hubbell A-V Rated SATURDAY, NOVEMBER 15, 2008 Earn CLE credits in Legal Ethics, Detection/Prevention of Substance Abuse and Elimination of Bias in the Legal Profession, and more! Law Offices of Gary P. Oswald, 100 Tamal Plaza, Suite 140 Corte Madera, CA / phone, 415/ fax 6

7 July 2008 Dear Member of the Marin County Bar Association, Re: Application to become an Officer or Director of the Marin County Bar Association If you wish to be considered for an MCBA director or officer position, please complete the application below and mail to President-elect Marlene Getchell, Marin County Bar Association 30 N. San Pedro Rd., Ste. 140 San Rafael, CA All applications must be received, in hand, by the close of the business day, September 1, If you wish to attach additional information, please do so. Pursuant to the Bylaws of the Marin County Bar Association, a Nominating Committee is being formed to review all applications. The Committee will meet prior to the September Board of Directors Meeting and make their recommendations for Officers and Directors for The Committee will then report their recommendations at the September General Membership Meeting. The election will be held at the November General Membership meeting. Very truly yours, Edward Berberian, President Marin County Bar Association APPLICATION Dear Nominating Committee, I wish to become a director, the president, secretary, treasurer (please circle applicable positions(s)) of the Marin County Bar Association. Please state your qualifications: Please state your reason for seeking this position: Applicants Signature: Name: Address: City/State/Zip: 7

8 (President s Message, continued from page 1.) plications will be if they are enacted. Do not assume that a title for a proposition explains in sufficient clarity what the legislation will establish. The Attorney General is tasked with titling the proposition in a nonpartisan/neutral fashion oftentimes not an easy task. In crafting the title to meet that neutral objective the critical issues addressed may be obscured. We must take the time to read the language of the proposition and gleen its meaning. The old adage the devil is in the details rings true. Here are some of the core issues to consider. Proposition 4 What are a parent s rights with respect to their children s right to life choices? Proposition 5 Is this truly dealing with only non-violent offenders? What are its economic costs and impacts on our state budget? How does it affect the way we process our criminal cases today? Will it improve the current system? Proposition 6 Are the enhancements to the criminal sanctions justified, particularly in the gang violence area? Are the proposed funding shifts justified? Proposition 8 Should the state regulate marriage based on gender? Proposition 9 What are a crime victim s rights? Are there, or should there be limits to these rights? Can the proposed modifications to California s existing victim rights laws prove workable? Proposition 11 What are the long term effects of changing the redistricting maps for California? Will that result in a significant change in the current political configuration of the state? Will the body that is proposed to make the redistricting decisions truly be free from political pressures? These are interesting questions and ones not easily answered. As the date of our decision draws closer we will be bombarded with endless political ads from opposing points of view. The cynical may say we will be bombarded from the opposing points of self-interest. Our duty, and responsibility, is to cut through the fog of partisan political rangling and decide what is in the best interests of our citizenry and vote with that purpose in mind. I urge you to read, analyze and VOTE. 8 The Marin Lawyer (Pulmonary Embolism, continued from page 1.) tion between DVT and prolonged air travel was presented by two cases in 1954 by Homans. 2 The best known case of DVT related to air travel was that of former President Richard M. Nixon who continued a long trip to Egypt and the Soviet Union suffering bouts of pulmonary embolisms in In truth, because the symptoms of DVT manifest themselves one to five days after the trip, many cases are not understood or reported as being related to the airline travel itself. A study from London s Heathrow Airport published in 1986 showed that during a three-year period, 18% of the sudden deaths among long distance passengers was caused by pulmonary embolisms. This was the most common cause of death other than ischemic heart disease in that study. 3 Various studies and papers can be found in the medical literature under Economy Class Syndrome or Risk Factors of Venous Thrombolism following prolonged air travel. In these articles, the authors cannot find specific correlation between the length of the flight (3 to 10 hours suffices) and the occurrence of pulmonary embolisms (PE), nor between the development of PE and the individual patient s number of risk factors (various combinations are all present). 4 Thus, anyone and everyone is at risk. A flight to Dallas has the same risk as a flight to London. The risk factors can be classified as Cabin Related (Continued on page 9.) WILLIAM J. O CONNOR MEDIATOR/ ARBITRATOR/ SPECIAL MASTER 30 Years Trial and Litigation Experience Panelist for Kaiser Malpractice Arbitrations 10 Years Settlement Judge Pro Tem 5 Years as Commissioner - SF Superior Court 10 Years Superior Court Arbitration Experience Past Chair - Marin Bar Assn. ADR Section Extensive Mediation Experience: Real Estate and Construction Defect Disputes Complicated Personal Injury Claims Medical Malpractice Issues Probate Disputes - Estate Contests Additional information available from website William J. O Connor Law Offices of William J. O Connor 19 Fallen Leaf Way Novato, CA Phone Fax

9 (Pulmonary Embolism, continued from page 8.) and Patient Related factors. Cabin Related factors are immobilization, sitting position, hard seats, low air pressure, relative hypoxia, low humidity and dehydration. The Patient Related factors are overweight, chronic heart disease, hormone therapy, malignancy, previous DVT, recent surgery, injury, and smoking to name a few. During quiet sitting in an airplane cabin over a period of time with low air pressure, relative hypoxia, and low humidity, many complex rheological and biochemical alterations take place in the lower limbs. The Venous Flow velocity is two-thirds less in persons who are sitting than in one who is supine. The decreased cabin air pressure with relative hypoxia and low humidity also distinguishes air travel from other types of traveling. 1. Also, an understanding of the air travel environment is helpful. A typical economy class seat is built to provide a minimal amount of comfort and a maximum amount of durability. Consequently, the seat portion is relatively hard and thus constricting to the veins in the upper portions of the legs. This adds to the risk factors of constricting flow of the blood from the lower extremities while in the seated position. Clearly, from a medical standpoint, anyone contemplating an airline trip, especially after surgery or who has the other risk factors, needs to be aware of the potential problem. The literature indicates that the more risk factors present the more likely the development of DVT during the flight. Preventive measures include drinking adequate fluids, avoiding smoking, and periodic exercise in the seat; aspirin may also help, as well as loose fitting clothing and any other preventative specified for the individual risk factors for the specific person. 5. Sadly, it has been only recently that any of the airlines have acknowledged this danger despite their knowledge of its existence for over 30 years. It has been only in the past year that British Air, American Airlines, and several of the other long haul international carriers have begun sharing information and warning the passengers of the risk of DVT. Previously, the airlines have categorically stonewalled any causal connection between the operations of their aircraft and Pulmonary Embolisms or related illnesses. They have even gone so far as to mislead and avoid any research and investigation into the statistical data kept by the airlines in order to do the research necessary to make the necessary correlations. To a certain extent, this has been as a result of the legal remedies that a passenger might have against an international carrier, such as British Airways. Liability of the airlines has been governed by the Warsaw Convention of 1929 ( Convention ) and its most recent iteration known as the Montreal Protocol of 1999 ( Protocol ) of which the United States is a signatory. Article 17 of the Convention provides for liability (without respect to any airline negligence), for injury to a passenger resulting from an unusual or unexpected event during an international flight. At the same time, however, the Convention and Protocol, where applicable, cap the passenger s recoverable damages at approximately $167,000 (absent proof of negligence, in which case damages are unlimited). The Courts have interpreted an unusual or unexpected event to mean that a passenger s individual reaction to the normal and expected flight operations of the aircraft do not cause liability for the carrier. In other words, if you are sitting in a seat provided by the carrier and you sustain a stroke or have a heart attack after the flight, it is not the carrier s fault because nothing unusual happened. Recently, this view has come under considerably more attack as the evidence has become clearer that airlines were well aware of this danger and did nothing to avoid it by providing the proper seats, equipment, or warnings to the traveling public who are totally within their care and control while on board the aircraft. This is no different from the requirement of the airlines to provide a seatbelt knowing that turbulence is a possibility during the flight. For example, in In re Deep Vein Thrombosis Litig. U.S. Dist. Ct., N.D. Cal., No. M:04-CV-01606, October 12, 2007, the court denied defendants summary judgment in several cases brought by airline passengers against airlines where plaintiffs alleged that DVT-related injuries occurred during or after international flights. The court first (Continued on page 10.) A. MAGGI SAUNDERS & ASSOCIATES Serving the Entire Bay Area since (office) (mobile) In a deposition, the Court Reporter is your biggest asset Labor & Employment, Civil Rights, Medical Malpractice, Complex Personal Injury, Construction Defect, Product Liability, Commercial Business The best court reporter always gets the last word! 9

10 Environ. Med. 1994: 65: The Marin Lawyer (Pulmonary Embolism, continued from page 9.) (Blogging, continued from page 2.) distinguished these cases from others it dismissed because those cases alleged that airlines were negligent by failing to warn against DVT, which the court wrote is an internal reaction to the normal operation of the aircraft and thus not an accident under the Convention. However, in one case, a passenger developed DVT after a flight during which she asked to be reseated because of her extremely cramped seating area, but was refused a seat with more space although several were available. The court held that a reasonable jury could find that the airline s refusal to reseat was an unexpected or unusual event constituting an accident and was a causal link in the development of DVT. Also, in another case, a passenger developed DVT and sued the airline, alleging that a two-hour weather delay during which time the plane was grounded and passengers were kept seated was an accident under Article 17. The court held that although no reasonable jury could find that a weather delay is an unusual or unexpected event in air travel, [f]orced prolonged sitting may qualify as an accident depending on the surrounding circumstances. Likewise, since the onset of pulmonary embolism from air flight is not limited to international flights, but can result from only a few hours of sitting on an aircraft, our United States carriers are similarly exposed to liability, but under different law. The U. S. carriers are not subject to the Convention if the flight is domestic in nature. Therefore, the normal rules of Negligence and Strict Product Liability are in effect, depending upon the state or jurisdiction in which a lawsuit might be brought. In conclusion, Economy Class Syndrome, Pulmonary Embolism or Deep Vein Thrombosis caused by air travel is a risk that passengers share anytime one boards an airplane. Simple preventative knowledge and the exercise of simple preventative techniques will minimize or eliminate the risks. *Louis S. Franecke is an Aerospace Engineer and Attorney with offices in San Rafael. He is board certified by the National Board of Trial Advocates and specializes in Aviation and Personal Injury litigation. (Endnotes) 1. Simpson K., Shelter Deaths from Pulmonary Embolism. Lancet. 1940; R. Arfvidsson B. Risk factors for Venous Thromboembolism Following Prolonged Air Travel, Coach Class Thrombosis; Hematology, Oncology Clinics of North America, Volume 14, No. 2, Homans J. Thrombosis of the Deep Leg Veins Due to Prolonged Sitting. N.Engl. J. Med. 1954; 250: , Sarvesvaran R. Sudden Natural Deaths Associated With Commercial Air Travel. Med. Sci. Law 1: 35-38, Arfvidsson B, Risk Factors for Venous Thromboembolism Following Prolonged Air Travel; a Prospective Study. Vascular surgery 33: Sahiar F., Mohler, S., Economy Class Syndrome. Aviat. Space energy-regulation practice. 8 When readers see Elefant s name in search engines and on her blogs, they might seek out her Web site, which con tains in-depth information about her practice. A blog can jump-start the process of driving traffic to a static Web site, she said. Perils of Posting Anyone can read blogs, choosing the depth and breadth of their exposure ac cording to personal taste. Writing a blog, however, comes with a few caveats. The biggest drawback is that it takes time, and writing is hard, said Svenson. If you don t like to write, then don t even consider blogging. In addition, maintaining a blog takes time: Even writing short posts of one or two para graphs requires research if links to other sources will be included, as well as editorial effort to make a few sentences conveying an idea as clear and strong as they can be. Some lawyers might prefer to establish camaraderie by playing softball or networking at the Rotary Club. Also, attorneys who gather information about a pet topic to share on a blog may be doing the work for other free riders, Elefant said. I wonder a little whether attorneys who spend a lot of time on a Web log might be offering too much content and that maybe other firms are using it to their advantage, she said. For example, if you re running a blog on employment law, perhaps another law firm, instead of referring potential clients to you, is taking the information and using it themselves. Some critics question the credibility of information posted on blogs with out the traditional publishing checks for accountability. No question, there is poor informa tion out there, and there are real dan gers for lawyers in trusting unworthy sources, said Palfrey. Reading [blogs] takes a certain skill and something of an eye and ear as opposed to reading the work of a trusted journalist, when you know there have been layers of fact-checking and editing. It can be a trap for the unwary. Bloggers can bolster their legitimacy by posting biographical and contact in formation and disclosing any activities or affiliations that might influence their opinions. Bloggers may have a reader ship, but they generally don t (Continued on page 11.) Medical Dental - Vision - Life - Disability For Quotes call (800) San Bruno, CA Insurance License# 0F04106 Specialist Since 1946

11 (Blogging, continued from page 10.) have a background in journalism or follow that profession s rules regarding fairness, balance, editing, and fact-checking. Those who are familiar with journalism ethics codes can add to their credibility by following those principles. 9 A cautious lawyer s blog will carry a disclaimer saying its content does not constitute legal advice and does not cre ate an attorney-client relationship. Con sidering how courts have treated other electronic communication, particular ly , a cautious blawger should also keep in mind that the libel laws that affect print ed material could also apply to blogs. *Rebecca Porter is an Associate Editor for Trial magazine. Notes (Endnotes) 1 2 AMANDA LENHART ET AL., PEW IN TERNET & AM. LIFE PROJECT, CONTENT CREATION ONLINE. Feb. 29, 2004, available at (last visited Dec. 2, 2004). 3 See Rick E. Bruner, Blogging Is Booming, IMEDIA CON- NECTION, Apr. 5, 2004, at (last visited Dec ). 4 See for a list of more than 600 law and legalrelated Web sites; the Daily Whirl, provides headlines from more than 100 such sites Check the Web sites of the Society of Professional Journalists (, the Associated Press (www.apme. com/ethics), and most major metropolitan newspapers. John Hiler s online magazine for bloggers, Microcontent News, has an interesting post comparing traditional print and broadcast journalism ethics codes with blogger ethics ( bloggingjournalism.htm) (last visited (Dec. 2, 2004.) ALL GOLFERS (AND FRIENDS OF GOLFERS) SAVE THE DATE!! WHAT: SECOND ANNUAL MCBA GOLF TOURNAMENT (AND BENEFIT FOR GUIDE DOGS FOR THE BLIND) WHEN: FRIDAY, SEPTEMBER 19, 2008 WHERE: SAN GERONIMO GOLF COURSE, SAN GERONIMO FORMAT: SCRAMBLE (SO THAT GOLFERS OF ALL LEV- ELS MAY PARTICIPATE AND HAVE A GREAT TIME!) COST: $140/PERSON ($520/FOURSOME INVITE CLIENTS!) FOR FURTHER INFORMATION, CONTACT LOUIS FRANECKE BY PHONE (415/ ) OR PHILIP R. DIAMOND MEDIATOR EXPERIENCED EFFECTIVE DEDICATED Construction and Real Estate Commercial and Residential Landlord/Tenant Business Disputes and Litigation Employment Personal Injury Philip R. 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 LAW & MEDIATION OFFICES OF PHILIP R. DIAMOND 4040 CIVIC CENTER DRIVE, SUITE 200 SAN RAFAEL, CALIFORNIA TELEPHONE (415) FACSIMILE (415) 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 11

12 (Of Counsel, continued from page 3.) closely tied to a firm financially. Other jurisdictions have taken a more fact-based approach under which an of counsel lawyer and the principal law firm may not neces sarily be considered one firm for purposes of conflicts of interest. In Gray v. Memorial Medical Center, Inc. (S.D.Ga. 1994) 855 F.Supp. 377, the court distinguished between of counsel who had a close, personal, continuous, and reg ular relationship with the prin cipal firm and a de minimus of counsel, an independent contractor working part time for the firm. The court in Gray stated that it cannot envision a more peripheral relationship between an attorney and a law firm than that presented by these unique circum stances. In Gray, the of counsel attor ney was located in another town, his involvement with firm cases was limited to spo radic consultation, and the firm had absolutely no involve ment with the attorney s cases or those of his firm. Material Limitation Rhode Island Supreme Court Ethics Advisory Panel, Opinion No.99-D9, concluded that when the of counsel attorney and the law firm have separate offices, separate practices, and no access to each other s files, they should not be considered one firm for purposes of con flicts of interest. It cautioned, however, that the attorneys also had to consider their affiliation would be a material limitation on the representation within the meaning of Rule 1.7(b), which prohibits a lawyer from repre senting a client if that represen tation may be materially limited by the lawyer s respon sibilities to another client or to a third person, or by the lawyer s own interests. If the representation would be mate rially limited by the affiliation, the representation may be undertaken only if the lawyer reasonably believes the repre sentation will not be affected and obtains the client s con sent after consultation. Vicarious Liability Because the of counsel rela tionship is considered to be close, personal, regular, and continuous, it also creates a risk of vicarious liability for legal malpractice. In Hart v. Comerica Bank (E.D.Mich. 1997) 957 F.Supp. 958, an attorney who was of counsel to a law firm was sued for legal mal practice under the theory of respondeat superior for the negligent acts of attorneys in that firm. The attorney argued that, as of counsel, he was not a member of the firm. The court did not decide this issue as a matter of law but looked to the facts on both sides of the question. Among the factors considered by the court were: the manner in which the attorney held himself out and rendered services to the public; the entity to whom the clients paid their bills; the name on invoices and letterhead; whether the lawyer shared office space with the firm; 12 the control the firm had over the attorney in client selection and case handling; and whether the lawyer was covered under the firm s health and malpractice insur ance policies. Because there was a gen uine issue of material fact as to this issue, summary judg ment was reversed, but the court left open the possibil ity that under the right cir cumstances the of counsel attorney could be liable for the firm s malpractice. In another case, the con verse was considered: whether a law firm could be vicariously liable for the malpractice of an attorney associated with it in an of counsel capacity. In Staron v. Weinstein (1997) 305 N.J. Super. 236, 701 A.2d 1325, an attorney failed to file a case within the applicable statute of limitations. At the time the plaintiff retained him, the attorney was of counsel to a firm. While the case was pending, the firm informed him that it was terminating the of counsel relationship. The firm notified all clients of which it had knowledge of the termination of that relationship. The firm was not aware, however, of one client, the one whose case was not filed within the statute of limitations. Consequently, that client was never informed that the lawyer was no longer of counsei to the firm. The of counsel attorney s malprac tice occurred a year after the relationship had terminated. In the legal mal practice case brought against both the of counsel attorney and the firm, the firm contended that because it was no longer associated with the of counsel attorney when the alleged mal practice occurred, it could not be liable for that malpractice. The court found gen uine issues of fact existed and reversed summary judgment entered in favor of the firm on that issue. The court rejected the theory that the firm was not liable as a matter of law for any malpractice committed by the of counsel attorney, holding that plaintiffs made a sufficient showing that the firm became counsel for plaintiffs by virtue of both the retainer agreement and the fact that the of coun sel attorney had at least appar ent authority to enter into such agreements on behalf of the firm. Having become coun sel for plaintiffs, it was the responsibility of the firm to either terminate the represen tation or give notice that it was terminated by virtue of the of counsel attorney s departure. In another case, however, the court found that the law firm was not liable for the acts of the attorney affiliated with it as of counsel based on the client s lack of reliance on any representa tion that the attorney was affiliated with the firm, the personal nature of the legal services to have been ren dered by the attorney, and the lack of remuneration to be paid to the firm. Homa v. Friendly Mobile Manor, Inc. (1992) 93 Md.App. 337, 612 A.2d 322, cert.granted, 329 Md. 168, 617 A.2d 1085, and cert. dismissed, 30 Md. 318, 624 A.2d 490 (1993). (Continued on page 13.)

13 (Of Counsel, continued from page 12.) Risk Management Whether courts take the pro phylactic approach of the California Supreme Court in Speedee Oil or conduct a factual inquiry into the nature and extent of the of counsel relationship, lawyers should be aware of their exposure to vicarious claims of legal mal practice arising out of an of counsel relationship. Because one of the factors considered by the courts may be the knowledge of and reliance by the client on the of counsel attorney s affilia tion with the law firm, the precise nature of the relationship between the of counsel and the law firm should be described fully and accurately in all communications with the public or with individual clients. Clients of the firm should be informed of any participation the of counsel may have in handling the legal matter. Conversely, clients of the of counsel should be informed of any participation of the law firm. The conflicts databases of the law firm and its of counsel should be examined for conflicts at least when an engagement of both the firm and its of counsel is made. Because some courts treat the law firm and its of counsel as one firm for conflicts purposes, the conflicts databases of both should be checked before every engagement. Finally, if the affiliation between the law firm and of counsel is close, both should consider obtaining insurance coverage from the same car rier to insure that all lawyers are covered. *Reprinted with permission of Thomas P. Sukowicz, direc tor of Lawyers Risk Management Services at Hinshaw & Culbertson. Mr. Sukowicz works out of the firm s Ft. Lauderdale, Florida, and Chicago, Illinois, offices. The firm s risk management Web site is located at www. (Wait and See, continued from page 5.) Blue Shield first looked into Steve s medical records in February of 2001, two months after they issued the family s pol icy. Steve had been hospitalized for stom ach problems, and that claim prompted Blue Shield underwriters to conduct an investigation. His prior medical records revealed he had a history of obesity and hypertension. Six weeks later he was involved in the car accident. The day after he was released from the hospital, Blue Shield canceled his policy. Cindy says that if Blue Shield had contacted her in February, when they first noticed a problem with the application, she could have secured health coverage for her husband and her son through her employer, well before the accident occurred. Steve Hailey sustained a torn urethra and other injuries from the collision. After Blue Shield canceled the Haileys policy, the family could not afford the rehabilitative services and other vital medical care Steve needed. A badly need ed operation was delayed until the condi tion became lifethreatening. To save his life, Steve finally got the operation, but at that point he had become permanently disabled. He now relies on a catheter to empty his bladder, and he is no longer able to work, the Haileys said. Only one percent of every 1,000 policies that Blue Shield investigates for application omission and misstatements are canceled. Blue Shield used this fact in its defense, but the court was not per suaded. These facts raise the specter that Blue Shield does not immediately rescind health care contracts upon learning of potential grounds for rescission, but waits until after the claims submitted under the contract exceed the monthly premiums being collected, the court stated. The court also noted that, Assuming the truth of the Haileys evi dence, the tragic situation that they now find themselves in could have been avert ed, had Blue Shield s agent or under writer simply asked Cindy if she had included information about her husband and son. The court s ruling will allow the Haileys to bring their case in front of a jury. What is the real cost of the court s ruling? Blue Shield spokesman Tom Epstein says that requiring insurance companies to investigate every question on the application before issuing a policy would create a lot of unnecessary work. According to Epstein, such a requirement would lengthen the application process and make insurance even more expensive for consumers. Shernoff, who filed an amicus curiae brief in the Hailey case, says that these types of arguments have long been used by insurance companies and that he has a hard time accepting this sort of expla nation because they (the insurance com panies) make so much profit. Last quar ter, Wellpoint (Blue Cross of California s parent company) had profits of $859.1 million. Shernoff says they would have to spend only a few million dollars to fol low the law and do the proper underwrit ing before approving applications and collecting premiums from policyholders. Shernoff says that the Hailey case is a huge victory because the milestone ruling will allow more of these types of cases to go to trial. This would give plaintiffs more power, leading to heftier settle ments and possible punitive damages. And while the Haileys and their lawyer, Michael Nutter, are happy about the court s decision, they will have to wait and see if the ruling sticks. On February 5, 2008, Blue Shield filed a petition for review with the California Supreme Court. *Maria Pecot grew up in the Bay Area and attended the University of California Berkeley, where she earned her Bachelor s degree in Political Science with a focus on American Politics. She currently works as a freelance writer, fashioning articles on a wide array of subjects. She lives in Oakland. 13

14 New Members change of scene Bernadette Bantly Bradley, Curley, Asiano, Barrabee & Gale PC 1100 Larkspur Landing Cir, Suite 200 Larkspur, CA x264 Fax: Mikal J. Condon Boies, Schiller & Flexner LLP 1999 Harrison St., Ste. 900 Oakland, CA Fax: Fred Norton Boies, Schiller & Flexner LLP 1999 Harrison St., Ste 900 Oakland, CA Fax: Eleanor M. Roman Lerman Law Partners LLP 802 B Street San Rafael, CA Fax: Deborah Schweizer Clapper, Patti, Schweizer & Mason 2330 Marinship Wy, Ste 140 Sausalito, CA Fax: David W. Shapiro Boies, Schiller & Flexner LLP 1999 Harrison St., Ste 900 Oakland, CA Fax: Steven Solomon Legal Aid of Marin 30 N San Pedro Rd, Ste 220 San Rafael, CA Fax: Elaine Andrews 410 Fair Street Petaluma, CA Fax: Judith Austin Brown Law Office of Judith Austin Brown 68 Mitchell Bl., Suite 200 San Rafael, CA Fax: James Parton III Parton Sell 750 Lindaro, Suite 140 San Rafael, CA Fax: Audrey Ng Roybal The Law Office of Audrey Ng Roybal 1817 Jonive Road Sebastapol, CA Nielsen, Merksamer, Parrinello, Mueller & Naylor LLP 2350 Kerner Bl. Ste 250 San Rafael CA Fax: For the following attorneys: Elli Abdoli Jennie Eddy Marguerite Leoni James Parrinello Gregory W. Stepanicich Richards, Watson & Gershon 44 Montgomery St., Suite 3800 San Francisco, CA Fax:

15 David Hellman Marin Bar ad 2008 THE MARKETPLACE Anyone wishing to advertise in the Marketplace should send their text ad to MCBA, 30 N. San Pedro Rd, Ste. 140, San Rafael, CA with payment of $25 per month, or you may to: The ad should be no longer than 25 words and paid in advance. 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) BEAUTIFUL SAUSALITO OFFICE SPACE available to one attorney or professional above Caffe Trieste. Would space share with Collaborative Family Law Attorney/Mediator and her assistant. Copier/ Scanner and reception services included for $1,600 a month. Call or for more details or to schedule a time to see the office SHARED OFFICE SPACE available for 1 atty. Courthouse Sq., 6 th Flr. San Rafael. Includes private office w/excellent view, work station area, shared reception area, use of Conf. Rm., File & Storage Rm. MACCHELLO & ASSOCIATES COURT REPORTERS Privately owned/operated by Judy L. Macchello, CSR, since Professional, experienced reporters throughout the Bay Area reporting depositions, arbitrations, mediations, IMEs and hearings. Offering the latest technology, including Realtime, E-transcript, exhibit scanning, rough draft/expedited transcripts, ASCII diskettes, condensed transcripts, interpreting/videography services. Complimentary conference room available. Phone (415) Office Assistant/Legal Secretary for Family Lawyer in Larkspur. See details in html (legal/paralegal jobs). OFFICE AVAILABLE downtown San Rafael. Professional suite. Full service, conference room, Westlaw, fax, phones. Overflow work available. call Mission Statement of the Marin County Bar Association Deadline for submission of articles, ads, inserts, and announcements is the 15th of each month. Thank you. To involve, encourage, and support bar association members, to serve as a liaison to the Marin County courts, and to educate the community and enhance access to legal services. 15

16 The best advice you could ever give. Helping someone make a difference while saving taxes is a winning combination. And it s easy. By setting up a donor-advised fund at the Marin Community Foundation, your clients can take a charitable tax deduction for 2007 and then decide later what organizations and issues they want to support. The Foundation also accepts a wide variety of assets another way to look great in the eyes of your clients. Think of us as your partner in philanthropy. To learn more, call Aviva Shiff Boedecker, director of gift planning, at We make giving easy, effective, and enduring Marin County Bar Association 30 North San Pedro Road, Ste. 140 San Rafael, CA published by The Marin County Bar Association Fax MCBA Officers Edward S. Berberian President Marlene P. Getchell President Elect Beth S. Jordan Treasurer Otis Bruce Jr. Secretary Jeffrey H. Lerman Past President David Feingold 5 Year Past President Board of Directors Elizabeth Brekhus Renee Giacomini Brewer David I. Brown Timothy J. Chambers Houman Chitsaz Philip R. Diamond Todd Duplanty Michael Fish Louis S. Franecke Joel Gumbiner Jessica Karner Dennis Kavanagh Jordan A. Lavinsky Andrew C. McCullough Eric Sternberger Executive Director Robynn Gaspar Production Express Printing Advertising Pat Stone 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. FIRST CLASS U.S.POSTAGE PAID permit #26 san rafael ca Dated Material 16


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