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Law Day, held annually on May 1, is a national day set aside to celebrate the rule of law. Law Day underscores how law and the legal process contribute to the freedoms that all Americans share. Law Day also provides an opportunity to recognize the role of courts in democracy and the importance of jury service to maintaining the integrity of the courts.

President Dwight Eisenhower established the first Law Day in 1958 to mark the nation’s commitment to the rule of law. In 1961, Congress issued a joint resolution designating May 1 as the official date for celebrating Law Day, which is subsequently codified (U.S. Code, Title 36, Section 113). Every president since then has issued a Law Day proclamation on May 1 to celebrate the nation’s commitment to the rule of law.

The 2018 Law Day theme encourages us to reflect on the separation of powers as fundamental to our constitutional purpose and to consider how our governmental system works for ourselves and our posterity.

 “Ambition must be made to counteract ambition.”

James Madison, The Federalist 51

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As Black History Month draws to a close, I’d like to take a moment to highlight some Black legal trailblazers — some of whom are likely familiar, and some you may never have heard of — and significant milestones for Black members of the legal profession in the United States, including the establishment of traditionally Black law schools.

The history of Black lawyers, judges and professors in America precedes the Civil War, but the Reconstruction Era (1865-1877) and a national legacy of racism severely hampered the progress of Black men and women in the law, particularly in the South, through the twentieth century Civil Rights Movement and beyond. As a result, we continue to see historic “firsts” for Black men and women in the legal profession as late as today.

A full examination of Black Americans in the legal profession would require far more space than PAABA’s humble website can provide. This brief timeline of notable Black attorneys and legal milestones provides merely a snapshot of that long and distinguished history:

1845 – Macon Allen, first Black attorney licensed to practice law in the U.S. (Boston, MA)

1853 – John M. Langston, first Black attorney admitted to the Ohio State Bar

1865 – John Stewart Rock, first Black attorney admitted to the bar of the U.S. Supreme Court

1869 – George Lewis Ruffin, first Black graduate of Harvard Law School

1869 – John M. Langston founds Howard University Law School and serves as its first Dean

1911 – Butler R. Wilson, William Henry Lewis, and William R. Morris, first Black attorneys admitted to the American Bar Association

1922 – Walter A. Gordon, first Black graduate of Boalt Hall at U.C. Berkeley

1931 – Jane Matilda Bolin, first Black woman to graduate from Yale Law School; 8 years later, she is the first Black woman appointed as a lower court judge in U.S.

1939 – North Carolina Central University School of Law is founded

1946 – Thurgood Marshall School of Law is founded at Texas Southern University

1947 – William Robert Ming, first Black full-time faculty member teaching at a predominantly white law school (University of Chicago)

1950 – William H. Hastie, first Black federal judge with a lifetime appointment (U.S. Court of Appeals for Third Circuit)

1961 – James Benton Parsons, first Black U.S. district court judge (Northern Dist. of Illinois)

1965 – Sallyanne Payton, first Black law student admitted to Stanford Law School; she is the first to earn a law degree at Stanford in 1968

1966 – Constance Motley, first Black woman to be appointed as a federal judge (Southern Dist. of NY)

1967 – Thurgood Marshall, first Black Supreme Court Justice

1977 – Wiley Manuel, first Black judge to serve on the California Supreme Court

1990 – Barack Obama, first Black student to be elected President of the Harvard Law Review

1991 – Clarence Thomas becomes the second Black Supreme Court Justice

1992 – Carol Mosely Braun is the first Black woman elected to the U.S. Senate

2003 – Dennis Archer, first Black President of the American Bar Association

2008 – Barack Obama, first Black President of the United States

2009 – Eric Holder, first Black United States Attorney General

2015 – Paulette Brown, first Black woman elected President of the American Bar Association

Gretchen Birkheimer
President, Palo Alto Area Bar Association 2017-2018

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On January 19, 2018, PAABA’s Litigation Section, chaired by Rebecca Epstein, presented Derek Duarte from Blackstone Discovery speaking about best practices in eDiscovery.  Derek addressed ways to minimize costs of eDiscovery, why counsel might want to be as transparent as possible about their data retention and collection processes, and when counsel should draw up a discovery roadmap including the parameters of what metadata will be at issue in discovery (hint: very early!)  He also discussed strategic reasons for getting outside discovery consultants involved in the data search and collection processes, particularly if a dispute about those processes is anticipated.

As is typical of a PAABA MCLE presentation, the discussion was highly interactive throughout.  Derek graciously addressed several hypothetical and practical questions at the end of the presentation.

Thank you, Derek, for such an engaging and useful discussion; thank you, Rebecca, for pulling the event together; and thank you Pacific Workplaces for hosting the event!

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You Don’t Need a Weatherman to See Which Way the Wind Blows

…And you don’t need to be an attorney to grasp the significance of the upswelling of sexual harassment and assault incidents being brought to light this year. The #MeToo hashtag flooded Twitter and Facebook. Rep. Jackie Spier testified about harassment in the House of Representatives, and has introduced H.Res. 604, the Congressional Education About Sexual harassment Eradication Resolution. The California Senate is hiring outside counsel to investigate allegations of harassment. Hollywood bigwigs and Silicon Valley executives are being ousted and retiring to “spend time with family” at an unprecedented rate. And Senate candidate Roy Moore is under pressure from the RNC to withdraw from the campaign after being accused of sexual contact with teenagers.

This feels like an excellent time to talk about ABA Model Rule 8.4(g). This section prohibits attorneys from “engag[ing] in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.” The comment to the rule notes that conduct “related to the practice of law” has a broad scope and includes not only representing clients and interacting with court and other legal personnel, but also in “operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”

The section is under scrutiny by First Amendment counsel, who expressed concerns that the section might be used to chill expression of disfavored On the other side of the equation, Stanford Law professor Deborah Rhode feels that the atmosphere of harassment is pervasive enough in the profession that the amendment makes an important symbolic statement. Other proponents point out that the section is no more stringent than federal employment laws (although employment law may not cover the “conduct relating to the practice of law” that the Model Rule includes).

California is considering a version of Model Rule 8.4(g). See Proposed Rule 8.4.1, “Prohibited Discrimination, Harassment, and Retaliation.”

So what is a respectful, respectable PAABA member to do with all this? Well, it might be a good time to update your firm’s sexual harassment policy. (PAABA has a number of excellent employment attorneys who can help make sure you’re in compliance!) and be sure your staff knows they have a safe and confidential space to report harassment at work. Don’t touch your employees. (Not ever.  Just don’t.  No, not even then.)  If you teach or lecture, consider not using sexually themed hypotheticals. And whatever your personal feelings are about “locker room talk,” don’t allow it in your workplace.

If you feel confused by the “new rules” and are concerned about stepping over a line, there’s always the Rock test: treat your colleagues and staff at all times as if they were Dwayne “The Rock” Johnson.

You read that right! If you’re not sure whether something is appropriate to say or do to a colleague, ask yourself if you’d say or do it to this guy:

He looks like a very effective, no-nonsense employee! I bet he gets things done! He’s at work to do work, it’s clearly not his job to bring you coffee or collect used mugs from your desk, and you’re probably going to think twice about casually hovering behind his chair and putting a hand on his shoulder.

Note that this isn’t a strictly gendered test. The idea is simply to be aware of power dynamics — between you and your staff, you and your clients, your clients and your staff, a new associate and a name partner — and treat someone who has less power than you as if they are someone who has more power than you (also known as “basic respect.”) The Rock’s brawn is just a handy visual example, but feel free to use whatever image helps you stop and consider what you’re about to say or do.

Does that need to be codified into a professional rule of conduct? I don’t know. I don’t want to think so. I love working with all of the male and female attorneys and other professionals I’ve come to know through PAABA, and I can honestly say I’ve never felt unsafe, been harassed, or been inappropriately touched by anyone in our community. On the other hand, I’m a woman and I’ve been practicing law for fifteen years, and I’ve had my share of uncomfortable and harassing situations, as have most of the women attorneys I know. And since I practice employment law, I’m well aware that some of the most notorious sexual harassment cases have come out of law firms.

In the end, I lean toward Professor Rhode’s view: that it’s good for our profession to make a strong statement against engaging in or condoning harassing behavior, so that our workplaces are safe for everyone who works there.

Disagree? Please leave a comment.

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The Palo Alto Area Bar Association and the California State Bar Business Law Section’s Partnerships and Limited Liability Companies committee welcomed Debbie McCall, Audit Partner at Seiler LLP, to present on the subject of financial reporting and how to evaluate data and numbers.  In order to set the context, Ms. McCall reviewed the roles of those who request these reports and those who prepare the financial statements; discussed the differences between audited, reviewed and compiled financial statements and outlined the purpose for financial statement preparation. Then participants were guided through the different bases of accounting, key line items on the balance sheet and what the metrics represent. Ms. McCall finished by providing tips on how to spot potential red flags and what might require further inquiry.  

Handouts provided presentation materials as well as key financial statement ratios and what they represent. In attendance were attorneys in the practice areas of including criminal, estate planning, business, intellectual property, investment banking, employment and mediation counseling as well as banking, wealth management and accounting professionals. 

“How to Read Financial Statements” was hosted by BNY Mellon in Menlo Park.

This summary was prepared by Debra McCall, Partner, Seiler LLP Certified Public Accountants and Soyeun Choi at Soyeun D. Choi, Esq., PC, in Redwood Shores, California.

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