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Volume 22, Number 6 • June 2009

The official publication of the

Contra Costa LawyerB A R A S S O C I A T I O N

Real Estate LawThe American Recovery andReinvestment Act of 2009 and itsEffect on California, and more...

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Volume 22, Number 6 • June 2009Contra Costa Lawyer

c o n t e n t s

features 4 InsIde Kristen Thall Peters

6 JudIcIal ProfIle lewIs a. davIs

14 QuestIon Man whaT imPacT do you ThinK The sTimulus PacKage will have on The california economy?

20 ethIcs corner carol m. langford

22 classIfIeds

departments

B A R A S S O C I A T I O N

8 Money doesn't talk, It swears a snaPshoT of how The economic sTimulus bill imPacTs The homebuilding and consTrucTion indusTries Kathleen f. carpenter

12 the aMerIcan recovery and reInvestMent act of 2009 Jim Melino

16 coMMercIal unlawful detaIners how to avoId evIctIons In a recessIon geoffrey steele

18 aB2881 one MIle radIus farMland dIsclosure of 2009 mailana mavromatis-broumand

4 June 2009

The Contra Costa Lawyer (ISSN 1063-4444) is published monthly by the Contra Costa County Bar Association (CCCBA), 704 Main Street, Martinez, CA 94553. Annual subscription of $25 is included in the membership dues. Second-class postage paid at Martinez, CA. POSTMASTER: send address change to the Contra Costa Lawyer, 704 Main Street, Martinez, CA 94553. The Lawyer welcomes and encourages articles and letters from readers. Please send them to Nancy J. Young, Associate Editor, Contra Costa Lawyer, P.O. Box 1867, Benicia, CA 94510. The CCCBA reserves the right to edit articles and letters sent in for publication. All editorial material, including editorial comment, appearing herein represents the views of the respec-tive authors and does not necessarily carry the endorsement of the CCCBA or the Board of Directors. Likewise, the publication of any advertisement is not to be construed as an endorsement of the product or service offered unless it is specifically stated in the ad that there is such approval or endorsement.

Christopher BowenOliver BrayMike BrewerJay ChafetzVirginia GeorgePeter Hass

CCCBA EXECUTIVE DIRECTORLisa Reep: 925.288-2555 • [email protected]

CCCBA main office: 925.686-6900 • www.cccba.org

2009 BOARD of DIRECTORSLarry Cook President

Ron Mullin President-ElectKathy Schofield Secretary

Audrey Gee TreasurerRobin Pearson Ex Officio

Leigh JohnsonKristen Thall Peters Ron RivesDana SantosStephen SteinbergCandice Stoddard

EDITOR Candice Stoddard 925.942-5100

ASSOCIATE EDITOR Nancy J. Young 925.229-2929

BENCH LIAISON Hon. Mary Ann O'Malley 925.646-4001

BOARD LIAISON Candice Stoddard 925.942-5100

COURT LIAISON Kiri Torre 925.957-5607

ADVERTISING/DESIGN Young Design & Production 925.229-2929

PRINTING Excel Graphics 925.552-9998

PHOTOGRAPHER Moya Fotografx 510.847-8523

EDITORIAL BOARD Kate Bekins 925.284-0480Mark Ericsson 925.930-6000Matthew P. Guichard Local Civil Jury Verdicts925.459-8440Nicole Mills 925.351-3171Craig Nevin 925.930-6016David Pearson 925.287-0051Erika Portillo 925.459-8440Andy Ross 925.296-6000Kathy Schofield 925.253-7890Audrey Smith, JFK Liaison925.969-3561Harvey Sohnen 925.258-9300Marlene Weinstein 925.942-5100

CONTRA COSTA LAwyER

Jennifer Comages Membership Coordinator

Emily Day Systems Administrator and Fee Arbitration Coordinator

Manny Gutierrez Administrative Assistant and Legal Interviewer

Maria Navarrete LRIS Coordinator

Barbara Tillson Moderate Means Program CoordinatorMichele Vasta Section Liaison / Education & Programs Coordinator

by Kristen Thall Peters

inside

Last year, when the Real Estate Section sponsored its edition of the Contra Costa Lawyer, our contributing authors expressed concern over the state of California’s real estate market and the adverse impact it would have on our overall economy. Although the downturn was noted as unprecedented, although not wholly unexpected, the economic downward trend in the market was thought to continue through 2008, and possibly beyond.

Did any of us truly imagine how much further we would fall in this past year? In last year’s edition, we discussed that interplay between real estate, bankruptcy and fore-closure — as well as some more traditional remedies — can be used when property values decrease. But while bankruptcies continue to increase, fewer property owners find filing a productive method to keep their property since the value is not likely to increase, and may even decrease, during the stay.

In the past year, sales and leasing transactions have significantly slowed as a result of so many prospective purchasers and tenants waiting for the market to hit bottom. Unfortunately, many commercial and residential property owner clients are inclined to give the decreasing investment back to the lender in lieu of trying to hang on to the investment. Lenders are also inclined to lay low — partially because of having to reserve against their losses, and partially because of higher underwriting standards — further diminishing the ability to finance a transaction, even if a player were inclined to jump in.

Often, as the markets for transactions decrease, litigation increases. However, having heard from fellow members of our Bar Association, the trend is not occurring in this economy. Feedback from many clients indicates that litigation is an expensive risk, and they would rather walk away from a claim than pursue it with the uncertainty of obtaining an award…or of collecting on it.

Nevertheless, there are signs that a turnaround, albeit a slow one, may have finally arrived. As of April (when this edition was being submitted for publication), I have recently closed three industrial and commercial lease transactions, the sale of a com-

Attorney Counseling EveningsThe CCCBA offers ACE Nights in various subject matters, such as family, landlord/tenant and immigration law. The programs are only two hours in length. They have been an invaluable service to the community — and the feedback received has been fantastic!

If you are interested in volunteering for an upcoming ACE event, please contact CCCBA’s Michele Vasta at 925.370-2548 or [email protected].

Contra Costa Lawyer 5

munications tower facility, and the pur-chase of a landfill gas-to-power facility. Moreover, two separate national tenants are vying for lease of a client’s property, which has been vacant since Tower Records filed for bankruptcy two years ago. I have heard from other transactional attorneys that they, too, are starting to get busy. Hopefully, the litigators will soon follow.

This trend, and the stimuli behind it, creates unique challenges for the legal community at large in our county, and this edition features articles addressing the stimuli, trends and challenges from a local perspective. The effects of the American Recovery and Reinvestment Act of 2009 and other stimulus packages (collectively, the “Stimulus Acts”) are addressed in articles by Kathleen Carpenter and Jim Melino. Our members’ thoughts on whether the Stimulus Acts will work are detailed in Question Man, while commer-cial unlawful detainer actions are discussed in an article by Geoffrey Steele. Finally, as the market wakes up again, we will be faced with new dis closure laws as described in an article by Mailana Mavromatis. However, as noted by Kathleen, because the Stimulus Acts are so broad, the team to advise your clients needs to be experienced in a wealth of different areas. Fortunately, members of our bar are a group of both friendly and knowledgeable lawyers, making the task of developing alliances within our community an easy one.

In conclusion, I’d like to thank the con-tributing authors who have taken time away from their busy practices to con-tribute to what I believe is an interesting and thought-provoking edition of the Contra Costa Lawyer. I sincerely hope that you enjoy this real estate edition. u

— Kristen Thall Peters is a partner of Cooper, White & Cooper LLP, resident in the firm’s Walnut Creek office. She is co-chair of the firm’s Green Practice Group and practices real estate, land use, environmental and business law. She can be reached at [email protected].

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6 June 2009

LEWIS A. DAVIS was born on September 25, 1948 in Washington, DC. In 1970, he received his BA in Philosophy with honors at Clark University. As a graduate student in philosophy at Georgetown University, he was a University Fellow and an instructor of philosophy at a junior college in the D.C. area. Then in 1981, he received his JD at McGeorge School of Law.

PRE-BENCH LEGAL ExPERIENCE Assistant US Attorney, 1990–2006 (Directors Award, Senior Litigation Counsel, Training Direc-tor, and Discovery Compliance Officer); Deputy District Attorney, Alameda County, 1984–1990 (Homicide Division); Executive Officer of the California Com-mission for the Revision of the Juvenile Court Law, 1983.

POLITICAL AFFILIATION Republican.

JuDICIAL ExPERIENCE Pittsburg Branch Court; Richmond Branch Court; Juvenile Hall and Pittsburg Drug Court (June 2008 to present).

CuRRENT CIVIC AND PROFESSIONAL ACTIVITIES

Contra Costa Committee, Diversity on the Bench — produced judicial mentoring handbook to promote diversity; Vice Chair, Judicial Council Court Security Education Committee; Robert G. McGrath Inn of Court (2007–2008).

CONTINuING LEGAL EDuCATION FACuLTY Governing Committee of the Center for Judicial Education and Research; Violence Against Women Education Project Planning

Committee; Instructor, Domestic Violence Institute for Judges (2008).

RECENT PuBLICATIONS Consultant, California Judicial Benchbook — Domestic Violence Cases in Criminal Court, 4th ed. (2007).

COuRTROOM INFORMATION Department 13, Room 104, Juvenile Hall, 202 Glacier Drive, Martinez; 925.957-5355, fax: 957-5356. Court Reporter: Renee Smith; Clerk: Kiesha Malone; Bailiffs: Mark Emery and Lou Willett.

TYPICAL WEEKLY SCHEDuLE Detention hearings, pretrial conferences, placement reviews, motions to vacate and terminate probation, status reviews: Monday–Friday mornings, and Wednesday afternoons. Contested hearings: Monday, Tuesday and Thursday afternoons. Drug Court (Pitts-burg): Friday afternoons.

COuRTROOM POLICIES Judge Davis generally rules from the bench. In addition to motions in limine and jury instructions, any antici-pated issues should be addressed with the court prior to trial commencement.

TELECONFERENCING Currently, teleconfer-encing is not permitted.

MOTIONS A courtesy copy should be deliv-ered to the court at the time a motion is filed.

DISCOVERY The judge requests counsel adhere to strict compliance with PC 1054, et seq, and other duties as required by law. Judge Davis has given the late discovery jury instruction (CALCRIM 306).

IN LIMINE MOTIONS Judge Davis would like these to be provided the day of trial and supported by case authority.

VOIR DIRE Voir dire is conducted primarily from the bench, with 15–30 minutes allotted per party. Additional time is permitted if necessary at the court’s dis-cretion. Six-pack method. (Not applicable in juvenile cases.)

JuRY INSTRuCTIONS Complete instructions to be provided by the parties on the first day of trial. Two jury instruction con-ferences will be held. (Not applicable in juvenile cases.)

SANCTIONS The judge has, on rare occa-sions, issued expedited contempt per CCP 177.5.

DECORuM Counsel should be polite, should not interrupt, and should not make speak-ing objections.

COMPuTERS AND AV IN THE COuRTROOM

Counsel may use their own equipment with prior notice.

CAMERAS IN THE COuRTROOM The judge does not allow cameras in his courtroom.

ADVICE Please be prepared, with appro-priate case authority to support legal assertions, and be courteous. Counsel should notify the clerk if running late to court. u

— Judge Davis was interviewed by Ross Pytlik of Gagen, McCoy, McMahon, Koss, Markowitz & Raines.

Lewis A. Davisjudicial profile


The Real Estate Section2009 Board of Directors: Kristen Thall Peters, President; Mailana G. Mavromatis, Vice President; Pippin C. Brehler, Secretary-Treasurer;

Patrice P. Suberlak, Program Chair; John Barnard, Director-Election Officer; James A. Melino, Past President

The CCCBA Real Estate Law Section is a group of highly involved and dedicated attorneys working together to further the education of its membership and foster relationships among its members and other sections. This section sponsors an MCLE breakfast the third Friday of each month at Scott’s Restaurant in Walnut Creek at 7:30am, which is free to section members and $25 to non-members. Speakers are

leaders in their specific real estate practice areas. Membership is open to all CCCBA members and we welcome your participation. Thanks to the following Real Estate Section members who have made our section so successful:

Magany AbbassMuslimah AlabiKari AmableMartin AmbacherDavid W. AndersonJames ArnoldRobert AuneDavid M. AustinCecily Talbert BarclayWilliem J. BardJohn BarnardDaniel P. BeaverRobert BelzerDavid H. BlackwellGina D. BoerRichard BowlesKenneth BransPippin C. BrehlerRoger BrothersMichael BrownChristopher BrownJeffrey BrownJason S. BuckinghamDenae Hildebrand BuddeGregory CaligariMark A. CameronEmelyn Jewett CarothersScott E. CarterJohn F. CavinJulie V. ChanRobia S. ChangJeffrey A. ChenTimothy ClackMichael J. CochraneBruce CorneliusRex L. CrandellPatricia E. CurtinAnn M. DalsinCraig E. DavisRandall S. DavisDana DeanWilliam C. DeanhardtLinda DeBeneLaurie A. DennenSusan G. DiamondstoneNancy L. DouglasLisa S. DoyleJoAnne L. Dunec

Michael Patrick DurkeeLisa Edgar-DickmanLiana C. EppersonMark D. EpsteinVahishta FalahatiEllen R. FenichelRobert C. FieldWilliam S. FiskeSidney S. FohrmanJustin M. FossumMichael FraméCorinne N. FratiniEthan K. FriedmanChad A. GallagherMariah Panza GarciaJohn GardnerGary Garfinkle*Audrey GeeSteven GellerJoshua GenserStuart C. GilliamEleanor A. GladstoneDavid GoldCharles S. GoldmanChristopher J. GonzalezBruce Reed GoodmillerElla K. GowerJason J. GranskogRick GrecoMichael GreeneBeth GrimmJan A. GruenBrian H. GunnDenise HannanElva D. HardingMichael HardyK.P. Dean HarperIra James HarrisMichael G. HarrisLawrence D. HarrisPeter A. HassCraig HasslerStephanie J. HayesDavid HermelinTed HighlandSteven N. HollandMatthew T. HolmanScott C. Honegger*

Clifford R. Horner*Robert HuddlestonNicholas HulchiyChristy L. HunsbergerChristopher J. HunterElizabeth K. HwangRobert B. JacobsBarbara Duval JewellLeslie A. JohnsonJeff JohnstonShannon Ball JonesGiselle A. JurkaninSteven J. KahnDavid L. KanelGeri M. KayeDebra KellerRichard E. KorbKevin LallyKevin J. LaneDavid J. LarsenVirgil A. LawrenceKristina D. LawsonHubert LenczowskiKenneth D. LittleH. Clyde LongLaura S. LoweSandra LowensteinChristopher LucasRobert S. LutherMartin LysonsJohn MacMillanCamarin MadiganG. Kevin MallettBonnie C. Maly*Peter A. MankinSilvano MarchesiRodney MarracciniBethany N. MarshallMailana G. MavromatisAndrew J. McCallGil MedeirosSteven MehlmanJames A. Melino*Kenneth Miller*Robert A. MillerKevin P. MonteeMichelle L. MooreMarilyn Morris

John B. MorrowDaniel MuellerDaniel A. MullerBrian P. MulryWilliam MurrayWilliam NagleRoberta E. NalbandianTara Castro NarayananCraig S. NevinKatherine R. OberleJanine OgandoAndrea L. O’TooleThomas P. O’TooleThomas H. PachecoShirley A. ParkerJohn PattonDennis R. PedersenH. Ray PefferKristen Thall Peters*Hanh T. PhamRobert D. PostarDouglas K. PoulinJames RamsaurMitchell S. RandallAllen RatcliffeJudith RathboneRobert RichRobert W. Richardson*Gary R. RinehartBruce E. RingRonald RivesRebecca Romero-VigilGary RosenbergDavid L. RothRic RussellHussein SaffouriStacie S. SandiferPeter T. SaputoKristin SchenoneJohn W. SchiltMaurice P. SchwartzChristopher J. SchweickertBrian SeibelAndrew W. ShalabyRobert SheldonW. Scott ShepardMalcolm SherJean Shrem

Robert J. SilvermanScott W. Singer*Sanford SkaggsMonica Lynn SlobodaWayne V.R. SmithVictoria Robinson SmithLewis J. SofferGeorge SpeirJames Martin SproulAdam M. StarrGeoffrey Wm. SteeleCandice Stoddard*James Straw*David B. Stromberg*Patrice SuberlakRodney SweetAndrew E. TanenbaumStephen ThomasHoward M. ThomasHeidi A. TimkenJon TonsingSuzette Z. TorresJames TrembathWilliam J. TrinkleDana C. TsubotaThomas TunnyKaren TurkDerek S. Van HoftenMichael John VeiluvaSigrid R. WaggenerJeffrey G. WagnerNicholas B. Waranoff*Len WatkinsChristopher C.M. WaudGlenn WechslerSteven WeilKatherine A. WengerKevin Worth WheelwrightJames WickershamAlan J. WilhelmyTodd A. WilliamsSteven J. WillockPhil WinslowMatthew K. WisinskiSteven N.H. WoodLynne M. Yerkes*Jordan Yudien

*Indicates past presidents. If you notice a past president who is not identified, please email [email protected] so we can update our list.

8 June 2009

DECADES AGo, Groucho Marx observed, “It isn’t so much that hard times are coming; the change observed is mostly soft times going.” The American Recovery and Rein-vestment Act of 2009 (the “Stimulus Act”), passed by Congress and signed into law by the president on February 17, 2009, includes a number of provisions specifically intended to “revitalize” our economy. The bill itself is a mind-numbing 1588 pages in length and provides an infusion of about $800 bil-lion into our economy. The purpose of this brief article is to preview some of the key provisions benefiting the homebuilding, real estate and related construction industries, along with noting some key resources that provide more in-depth information in order to keep up to date in this evolving arena.

Where is the Money GoinG?The $787 Billion Economic Stimulus Package – February 2009•$288billion:“taxrelief”•$144billion:stateandlocalmunicipalities•$111billion:infrastructureandscience

•$81billion:poorandunemployed•$59billion:healthcare•$53billion:educationandtraining•$43billion:energy•$8billion:other

The $275 Billion Mortgage StimulusPackage – February 2009•$200billion:morehelpforFannieMaeand FreddieMac•$75billion:directassistancetohomeowners in distress

See http://www.readthestimulus.org/ hoW Will the Money Create Jobsto iMprove infrastruCture?The Stimulus Act includes an approxi-mately $150 billion investment in our nation’s infrastructure. Much of the $150 billion is being directed toward construc-tion projects. For instance, approximately $40 billion will be allocated to the repair and maintenance of roads, bridges, dams, ports, rail, airports, and water systems. Most of these funds will be distributed to

state departments of transportation or to federal agencies who will decide how the money will be spent, but there is hope that the funding of these projects may decrease the amounts required by homebuilders in the future to offset impacts of development prior to obtaining entitlements for the construction of new homes. Funds will also be allocated to indi-vidual states for various projects, including modernization, renovation, and repairs of facilities at public schools and institutions of higher education. In addition to poten-tially decreasing the amounts required by homebuilders in the future, the infusion of cash into our schools also has the pros-pect of increasing property values and, thus, sales prices of new homes. One of the most concise summaries of information comes from The Associated General Contractors of America website, which provides a state-by-state stimulus impact chart (http://www.agc.org/cs/industry_topics/construction_economics/ state_by_state_stimulus_impacts).

Money doesn’t talk, it swears . . .

A Snapshot of How the Economic Stimulus BillImpacts the Homebuilding and Construction Industries

by Kathleen F. Carpenter

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enerGy effiCient CoMMunities and the Creation of Green Collar JobsA very significant part of the Stimulus Act includes allocation of money to pro-mote energy efficiency in both existing and new construction. For example, the Stimulus Act allocates funds to make federal and local government buildings more energy efficient and establishes a program to competitively award funds to make energy efficient improvements (including upgrading insulation, windows and furnaces) to HUD-sponsored housing. The Stimulus Act also provides $6.3 billion to state and local governments to make investments in energy efficiency. The most interesting and creative use of the Stimulus Act funds for home build-ers may be those uses that extend beyond the tax incentives for making investments to increase energy efficiency and into energy production. With the landscape already in motion creating “green” communities all over the state, there is also a plethora of tax credits and incentives for the actual production of alternative energy sources. The incentives to make direct investments in energy-related projects are bringing into reality the creation of the mixed-use, urban or suburban community designed to include a compact power clean “facility” capable of providing renewable energy and perhaps even clean processing of all the waste produced on site. In areas where development is surrounded with farmland, neighboring rural areas traditionally used only for food-source crops may become increasingly popular as a source of localized energy production for new communities.

are there already siGns of life in housinG?The Stimulus Act has many provisions designed to give a boost to the real estate and housing industry. Some direct invest-ments will be made to help various com-munities that have been hit hardest by high foreclosure rates. It also includes numerous other provisions designed to boost the housing industry, such as increasing and expanding the tax credit for first-time homebuyers with incomes up to $75,000 for single taxpayers and $150,000 for

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10 June 2009

married couples, to 10% of the home’s purchase price up to $8,000 for homes purchased during 2009. Moreover, this tax credit is different from prior tax credits in that it does not have to be repaid so long as homebuyers use the home as a primary residence for at least three years. It also allows state housing finance agencies to help buyers at closing by advancing the credit as a loan. The Stimulus Act also extends a pre-viously-enacted law that increased loan limits to $729,750 for FHA, Fannie Mae and Freddie Mac mortgages through 2009, which will help homebuyers in “high-cost” markets (an appropriation of $2 billion in HOME Investment Partnerships Act funding for affordable housing projects). In fact, as of April 22, banks were struggling to keep up with the mortgage demand from first time homebuyers seek-ing to obtain these new credits. (See http:// www.abc.net.au/news/stories/2009/04/ 20/2547788.htm.) In California, we cur-rently have an additional tax credit equal to either 5% of the purchase price or $10,000 (whichever is less) for new home purchases by qualified buyers who — on or after March 1, 2009, and before March 1, 2010 — purchase a qualified principal residence that has never been occupied. Application must be made within seven calendar days after the close of escrow via fax only. Although, at the time of this writing, no tax credits had yet been allo-cated by the FTB, applications for approx-i mately one-third of the credit had been received but not yet processed. (See http://www.ftb.ca.gov/individuals/New_Home_Credit.shtml.) In another effort to help the housing industry, the president proposed the Homeowner Affordability and Stability Plan to modify the loans of certain at-risk borrowers who are struggling to make their mortgage payments.

one notable tax benefitThere are a myriad of provisions included in the Stimulus Act that may also benefit the real estate and construction industry. For example, the Stimulus Act includes: (1) an extension through 2009 of the

special bonus depreciation provision allowing depreciation of one-half of the cost of eligible property placed in service; (2) an extension through 2009 of the $250,000 limit for Section 179 expensing for new or used equipment placed in service during a particular tax year (in 2010, the Section 179 expensing limit will revert to $133,000); and (3) for eligible business taxpayers with average gross receipts of less than $15 million over the three tax years prior to 2008, an extension of the two-year carry back of net operating losses to five years for losses generated from a tax year beginning or ending in 2008.

don’t think “shoW Me the Money,” it's here noWKeep in mind that many of the provisions in the Stimulus Act were designed to make an almost immediate impact on the con-struction and real estate industries, and are already being put to use. Any company failing to examine how its business can take advantage of the Stimulus Act may miss these critical opportunities. For example, shares of Genworth Financial Inc. lost nearly a fifth of their value on April 13 after the insurance company missed a key deadline, rendering it ineli-gible to participate in the government’s $700 billion financial rescue program. With the immediate impact sought to be achieved by the Stimulus Act, prac-titioners should be familiar with it and be prepared to advise their clients of its impacts and effects. In addition, because the Stimulus Act is so broad, the team to advise your clients may need to be expe-rienced in a wealth of different areas and outside consultants. Fortunately, members of the Contra Costa County Bar Associa-tion are a very congenial and knowledge-able group of lawyers, making the task of forming alliances within our community an easy one. u

— Kathleen F. Carpenter is Chair of Cooper, White & Cooper LLP’s Home Building Industry Practice Group, and a member of its Subprime Credit Crisis and Green Practice Groups.

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The Contra Costa County Bar Association is pleased to endorse Cheryl L. Hicks to represent District 3 on the State Bar Board of Governors, which oversees the organizational, policy and professional issues of the State Bar of California. District 3 includes Alameda, Contra Costa, San Mateo and Santa Clara counties.

At its April 1, 2009 meeting, the CCCBA Board of Directors unanimously passed a resolution endorsing the candidacy of Cheryl L. Hicks for State Bar Board of Governors District 3 Representative.

Despite a bustling private practice in Oakland, where she specializes in juvenile dependency, family law, and plaintiffs personal injury law, Ms. Hicks still manages to generously contribute her time and talents outside her practice. She is past chair of the ACBA Civil Court Appointed Attorneys Program (CCAAP), and is still active in the program.

Ms. Hicks also served on the ACBA Board of Directors for six years, including serving as president in 2007. During her presidency, she worked tirelessly to promote diversity and inclusiveness at all levels of the profession. Ms. Hicks was also instrumental in the creation of the Judicial Mentoring Project, a project of the ACBA and the East Bay Diversity Bar Coalition, designed to give attorneys, especially women attorneys and attorneys of color, interested in a career on the bench valuable information and insight on the application and appointment process by pairing them with judicial mentors. The Contra Costa County Bench/Bar Diversity Committee replicated this program in our county and now offer a Judicial Mentoring Program with a similar emphasis.

More recently, Ms. Hicks was honored with the State Bar of California Solo & Small Firm Practice Section Meyer J. Sankary Lawyer of the Year Award, which is presented to an individual solo lawyer who has exercised notable leadership or shown a contribution to the development of greater justice in a field of law.

In 2001, the CCCBA became a party to the District 3 agreement, where local bars take turns presenting a candidate based on a rotation cycle in proportion to the attorney population in their respective counties. The agreement helps ensure that each county, regardless of size and number of attorneys, has the oppor-tunity to elect a representative to the Board of Governors. Per the District 3 agreement, the San Mateo, Santa Clara, and Alameda County Bars are also endorsing Cheryl L. Hicks for District 3. Ballots were mailed to State Bar members on April 30, and voting will continue until June 30.

District 3 Bar Associations Endorse

ChEryl l. hiCksfor state Bar Board of Governors

12 June 2009

PRESiDENT oBAMA signed the American Recovery and Reinvestment Act (“Act”) of 2009 on February 17, 2009 — bold legislation designed to stimulate the U.S. economy in the wake of the economic downturn brought about by the ripple effects of the subprime mortgage crisis and resulting credit crunch. The scope and terms of the Act were the subject of a raging debate within Congress and throughout the country. The legislation will have far-reaching impacts on the construction industry at federal, state, and local levels, and will ultimately control the fate of many infrastructure projects that are “shovel ready” but lacking fund-ing. This article summarizes the key funding provisions within the Act that affect the construction/infrastructure sector and reviews a few of the contentious points in the roiling debate about the legislation. The Act contains approximately $800 billion of federal government stimulus, including federal tax cuts ($288 billion), state and local tax cuts ($144 billion), as well as investments in education ($53 billion), health care ($59 billion), protect-ing the vulnerable ($81 billion), energy ($43 billion), and infrastructure and sci-ences ($111 billion). Included in the tax relief are additional resources that bring the total stimulus for infrastructure and science up to $126 billion. With respect to infrastructure-related projects, the Act provides:• Investments in education to local school districts, including Title I programs, IDEA programs, a new school modernization and repair program, and an education technology program.

• Investments in heavy infrastructure, including the modernization of federal and other public infrastructure with investments that lead to long-term energy cost savings, highway construction, clean water, flood control, and environmental restoration investments, and transit and rail to reduce traffic congestion and gas consumption.• Energy investments, including an electric smart grid, renewable energy tax cuts, and weatherizing modest-income homes. The bill requires recipients of funds (including applicable state agencies) to publish a “plan” for using the funds. The plan must explain, among other things, the purpose, cost, rationale, net job cre-ation, and contact information about the plan. The information is to be posted at www.recovery.gov so that it can be subject to public review and comment. Inspectors General from each department or executive agency will be expected to review concerns that may be raised by the public. Not unexpectedly, the Act received mixed reviews from leading commentators and economists. University of Texas economist James Galbraith suggests, “Given the depth of the crisis and the lock-up of the financial system, [the Act] is not an end-point, only a start.” He believes that another package will be needed and that “strategic investments in mass transit and other long-term improvements . . . should be authorized via a permanent National Infrastructure Fund.” Michael Oppenheimer, a professor of geosciences and international affairs at Princeton University, believes that, on energy and environment, “The stimulus plan needs to fulfill long-term goals, as well

as provide a short-term rescue. If the rescue package cements in the existing world, the necessary transition to a ‘green’ economy will be far more difficult to achieve later.” By way of example, Mr. Oppenheimer points to the trade-off between building new highways and expanding/maintaining mass transit capacity. He notes that although both are “shovel-ready,” only one “supports the emergence of a green economy while the other just ossifies the existing patterns, which are a big part of our eco-nomic and international problems in the first place.” Similarly, he believes a complete overhaul of our electricity grid is necessary to make renewable energy a reality. “With-out the new sources of energy, there’s less need for the modernized grid but without the new grid to distribute it, many entre-preneurs will think twice about investing in solar or wind power. It’s the government’s job to jump start the process.” The American Society of Civil Engi-neers (“ASCE”) generally supports the stimulus package, but doesn’t believe the Act goes far enough. The ASCE believes that decades of underfunding and inatten-tion have endangered the nation’s infra-structure, and that government will need to invest approximately $2.2 trillion in repairs and upgrades (supplemental to long-term programs) over the next five years. ASCE reports this conclusion in its new 2009 Report Card for America’s Infrastructure, which assigns an overall grade of a “D” to the nation’s infrastruc-ture. The 2009 Report Card offers detailed guidance from professional engineers on where funds would best be spent. In its November 2008 report, the ASCE set forth the following principles

The American Recovery and Reinvestment Act of 2009

By Jim Melino


The Law Offices of David M. Lederman

DaviD M. LeDerManCertified Family Law SpecialistState Bar Board of Legal Specialization

TOM SMiThAssociate Attorney

3432HillcrestAvenue • Suite100 • Antioch,California94531309LennonLane • Suite102 • WalnutCreek,California94598

Phone925.522-8889 • Fax925.522-8877www.ledermanlaw.net

Practicing exclusively in all aspects of Family Lawin Walnut Creek and Antioch

that it believes should be applied in select-ing projects to receive funding under the Act: (1) The project should deliver mea-surable improvements in public health, safety and quality of life; (2) The project should provide substantial, broad-based economic benefit; (3) The project should be designed and built in a sustainable and cost-effective manner, and proper consid-eration must be given to life-cycle costs; and (4) The project should have a signifi-cant environmental benefit such as area restoration, improved air quality through reduced congestion and better watershed management through eliminating vulner-abilities in a system. Regardless of where commentators and elected officials fall on the continuum of funding within the Act, some type of stimulus (either through tax cuts or direct funding) will impact the status of heavy civil infrastructure projects throughout the nation — in California generally, and in the Bay Area and Contra Costa County. These projects present many complex legal issues that cross over a number of practice areas falling within the purview of the Real Estate Section, including real estate/ eminent domain law (e.g., where right of way for highway or light rail projects is acquired through eminent domain pro-ceedings); construction law (e.g., where contractual risk transfer provisions are subject to Public Contract Code require-ments); and environmental law (e.g., most large infrastructure projects are subject to California Environmental Quality Act [CEQA] and National Environmental Protection Act [NEPA] requirements, among others). Such legal issues will inevitably impact the practices of many attorneys within the county on a number of these projects such as the Caldecott Tunnel Fourth Bore Project, the BART/Oakland Airport Connector Project, and the California High Speed Rail Project. u

— Jim Melino, partner with Bell, Rosenberg & Hughes LLP and immediate past president of CCCBA’s Real Estate Section, can be reached at [email protected].

Sometimes it takes both knowledge and determination.

Palmer Madden925.838-8593 • www.adrservices.com

Over 25 years’ experience as an ADR neutral

Experience without Administrative Fees

14 June 2009

uestion manQWhat impact do you think the stimulus

package will have on the California economy?

I think the impact will be more psychological than fiscal. For those who like this sort of thing, it is the kind of thing they will like.

Tom CainSolo, Walnut Creek

Not much — but one can hope and dream!

Jessica A. BravermanBraverman Mediation& Consulting

Not very much! Most folks just don’t understand it. Most benefits will go to governments and not to indi-viduals. Most projects will be public works and not private projects.

Wayne V. R. SmithAttorney and Mediator

You mean when they start spending the money two years from now? Hard to see that far ahead. Or, do you mean when the interest payments start coming due from my kids and grand kids? Not hard to see that far ahead.

Kurtiss JacobsSolo, Concord

Nobody is savvy enough to pre-dict all future ramifications of interventions into the market. That being said, doing nothing is an intervention. The final results of the well meaning venture of the stimulus package will not be known for a long time, but I am hope-ful for a temporary return to prosperity.

A. G. AsheLaw Office of Anthony Guy Ashe

The federal stimulus has already saved California from massive cuts that would have deepened the recession, and put a few dollars in consumers’ hands. How-ever, it won’t be enough. An avalanche of foreclosures is now starting after a brief moratorium, which will pull property prices, banks and jobs down in a spiral until solved. Government help is needed at the source — to stem foreclosures by refinancing homes with negative equity with loans at the home’s true market price, perhaps secured by the government taking an interest in the upside appreciation.

Michael S. StrimlingBramson, Plutzik, Mahler & Birkhaeuser, LLP

There has been an obvious, seri-ous deterioration in the California business picture. There are some signs that the real estate market is bottoming, some life in the stock market, and some more

bankruptcies probably in the mid-west, so the stimulus is only a very good injection into California, probably notable in the next nine months.

Marc BouretBouret ADR & Mediation Firm

Little to none. This is a spending, not stimulus, package.

David AustinMcNichols Beers LLP

Must fight being a cynic. Losing battle. The “Stimuli packages” will have the same effect in California as nationally: $1.00 = 10¢ within two years and government controlling 75% of the national economy (100% in California). Where is John Galt when we need him? (For those unaware, read Ayn Rand’s Atlas Shrugged. It is coming true.)

Dan G. RyanLaw Office of Dan G. Ryan

925.790-2600 • [email protected] • www.amllp.com

LAW OFFICES OFDOUGLAS A. PRUTTON

Representing employees only in all types of labor and employment matters, including wrongful termination and overtime claims.

Freeconsultation,contingencyfees, costsadvanced,26yearsexperience.

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is pleased to announce the fourth never annual

Trivia Bowl for Access to Justicein support of The BAR FUND

Friday, October 2, 20096:00 – 9:30pm • Blackhawk Museum (a.k.a. Behring Auto Museum)

Master of Ceremonies Tom Beatty Judge Hon. Norm Spellberg (ret.) Game Show Host Brian Bonney

$75 per person - $750 reserved table for 10 ~ or ~

$100 per person for Sponsors / $1,000 Patron table for 10 (includes recognition in event program)$500 to enter a team of 3 (100% of team entrance fees may be taken as charitable tax deduction1)

Enter a team to compete against law firms and retired judges, or put together an “All Star” team of your trivia-savvy colleagues to compete for the perpetual trophy. Trivia categories will include: literature,

science & technology, history & geography, arts & entertainment, sports, local legal lore, and obscure legal questions. This year we also have a special category of questions in keeping with our “Auto” themed venue.

Deadline to enter team – September 1!

Even if you don’t compete in the Trivia Bowl, support The BAR FUND and cheer on your favorite team by signing up as an individual or purchasing a table of 10! Don’t miss this unique, entertaining and fun-filled event.

Maserati SponsorJAMS

Ferrari SponsorsCarroll, Burdick & McDonough, LLP • Certified Reporting Services • The Recorder

To Register: Call Michele Vasta at 925.370-2548 with your Visa, MasterCard, American Express, or Discovery Card,email her at [email protected], or send your check, payable to CCCBA, to 704 Main Street, Martinez 94553.

For further information, or to receive a complete set of Trivia Bowl rules:Contact Lisa Reep at 925.288-2555 or [email protected]

Space limited - Sign up now!1East Bay Community Foundation (EBCF), a tax-exempt 501(C)(3) charitable organization, administers the CCCBA’s “The BAR FUND”. However, ECBF is not coordinating or sponsoring this event. For the purpose of tax-exempt charitable contributions to The BAR FUND,

including the team entrance fee, EBCF’s tax identification number is 94-6070996.

16 June 2009

THE REAliTy: Current economic times are extremely difficult for retailers and white-collar companies that expanded during the boom of the last 10 to 15 years. Now they find themselves with either more space than they need or higher rent than they can afford. As those companies expanded and took more and more space in your client’s building, they may have created a situation that — from your client’s perspective, and to quote the current Secretary of the Treasury — they may be “too big to fail.” The result: Your client may now be left with unprofitable, unproductive, empty space. So what to do? The legal fees and costs for a commercial unlawful detainer action can quickly add up and leave your prop-erty owner client no better off. Now s/he not only has an empty space, but large legal bills and court costs as well. One possible solution: be proactive. Since a landlord has an unfettered right of inspection within a commercial premises [Lopez v. Superior Court (1996) 45 Cal.App.4th 705], have your client use it. Have your client (or your client’s agent) go by the store or firm to check for dangerous conditions and conduct an open dialogue with the lessee. Make sure that the inspec-tion is subtle, but use it constructively as a method for seeing the inventory of a retail industry. If it appears that the back store

room shelves are empty and the inventory low, maybe it’s time to sit down with the lessee. Discuss possible cost-saving methods for lowering current monthly payments and adding them to the end of the lease. If the store is part of a national chain, contact the company’s headquarters regarding the local store and what your client can do to help increase sales. If the leased space is an office building, see how many offices are empty or how busy the employees seem to be. This type of interaction with the lessee will show that your client is willing to work out solutions instead of being put in the position of having to deal with a future desperate tenant (who may leave in such a manner that does not give your client any options but to have a vacated space and other disgruntled tenants whose foot traffic may drop off dramatically). Such a scenario will decrease the value of the remaining leased spaces. A case in point is Home Depot’s recent acquisition of Yardbirds. The company announced that it was closing its lumber and hardware locations throughout the Bay Area. These closures are leaving several shopping center owners (who had just recently renovated their original stores, redesigned them and added new signage for Home Depot’s Yardbirds) with a big empty space, not to mention a big

empty parking lot. The impact on some of the surrounding tenants may be devas-tating. Yet one savvy owner, who had just spent considerable sums to renovate his shopping center, went to each of the other tenants on the advice of his counsel with a plan to increase traffic through additional advertising and some special events. While it is still too early to unequivocally state that such moves will keep all the remain-ing tenants in place while replacements can be found, it showed the remaining tenants that the landlord cared about their specific businesses and was willing to work with each of them individually to increase their visi bility in the local community. Furthermore, it gave the landlord the opportunity to meet with each of the busi-nesses, creating a more personal interaction that may well result in more open com-munication between the parties. The relationship between lessors and lessees should not be a contentious one, especially in these current economic times. And what if you are the tenant? In the framework of a commercial lease, one absolute negative is for a lessee to remain in possession of the premises without pay-ing rent and/or other charges, deliberately waiting for the landlord to file an unlaw-ful detainer action, with the purpose of setting up some alleged circumstance for the lessee to claim damages for some breach

Commercial Unlawful Detainers:How to Avoid Evictions in a Recession

by Geoffrey Steele


of a covenant as a defense to the unlawful detainer [Schulman v. Vera (1980) 108 Cal.App.3rd 552, 558]. If your firm is having difficulty meeting its obligations, or if your store has seen a drop off in sales because of the closure of a local plant or layoffs in a local industry, that is the time to discuss your options with the landlord. If it does become necessary to file that unlawful detainer action, remember you must strictly comply with the statutory requirements [Levitz Furniture Co. v. Wing-tip Communications, Inc. (2001) 86 Cal.App.4th 1035]. You must review the lease and any addendums for notice require-ments. You are strongly urged to carefully review all the forms and statutes that are necessary to complete the notice require-ments and double check that you have complied with all the filing requirements. Any deviation or misstep results in the action being voided, and you would then have to start all over again.1 u

— Geoffrey Wm. Steele, a partner in the Walnut Creek firm of Nevin, Ramos & Steele, special-izes in civil, business and real property litigation.

1Code Civ. Proc. §1161 et seq. sets forth the jurisdictional and procedural law for unlawful detainer actions. Code Civ. Proc. §1174 provides the court’s jurisdiction to enter judgment for possession and to award incidental rents and damages. Established California law holds “that possession is the principal subject of unlawful detainer actions and the entitlement of the plaintiff lessor to recover damages or rents therein is wholly dependent upon the lessor prevailing on the issue of unlawful detainer” [Balassy v. Superior Court (1986) 181 Cal.App.3rd 1148, 1152]. Accordingly there can be no damage award if the landlord fails to prove an unlaw-ful detainer. [Id.] Furthermore even when the landlord does prevail, only damages that “result from the unlaw-ful detention and accrue during that time” are proper [Vasey v. California Dance Co. (1977) 70 Cal.App.3rd 742, 748]. An award of rent is only allowable if the unlaw-ful detainer is based on the nonpayment of rent [Saberi v. Bakhtiari (1985) 169 Cal.App.3rd 509, 515]. More-over, the award of damages for breaches of the lease occurring before the unlawful detainer and of “future damages” for continued unlawful possession beyond the date of the judgment until such time as possession is returned to the landlord are not permitted in unlaw-ful detainer [Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3rd 1032, 1073].

The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall.

until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, approximately one in ten families has a relative with this disease. Of the four million people living in the u.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.

elder Law is

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Michael J. young Estate Planning, Disability, Medi-Cal,

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18 June 2009

oN SEPTEMBER 30, 2008, Governor Schwarzenegger signed AB2881 into law. AB2881 became effective on January 1, of this year, and amended California Civil Code §1103.4 to require the disclosure to prospective buyers of farm activity within a one-mile radius of the property to be sold. Lawsuits against agricultural opera-tions are becoming more prevalent as urban development moves into agricul-tural areas. Hopeful homeowners who were willing to pay the price of a long commute to own a piece of the American dream purchased homes adjacent to farmlands only to find that the stink of cows and the noise of a rooster salute at dawn (including on the weekends) was “offensive to the senses.” Such complaints, however, cannot be resolved via a nuisance lawsuit in California. California has a history of protecting farming activities. One example is making legal farming activities exempt from nuisance lawsuits. The California Court of Appeal has upheld a trial court’s decision and appli-cation of California Civil Code §3482.5 et seq., a statute that exempts farming activities from nuisance lawsuits, in Rancho Viejo, LLC v. Tres Amigos Viejos, LLC, 100 Cal.App.4th 550 (2002). Section 3482.5

was added to the Civil Code in 1981 by the enactment of Assembly Bill 585. The statute provides that farming activities in California are exempt from “nuisance” lawsuits, however, the statute is silent with regard to “trespass” lawsuits. In Rancho Viejo, a residential developer sued an avocado farmer for failure to con-tain irrigation water that damaged the developer’s land. The developer alleged that water run-off from the avocado farmer’s watering the avocado trees was “trespassing” on the land to be developed. Although Civil Code §3482.5 bars nuisance lawsuits against farmers in California, the developer focused his argument on the distinction between nuisance and trespass. The developer argued that “while section 3482.5 may bar a claim for nuisance against a farmer for the smell of his cows, it will not shield him from liability if a cow escapes and trespasses onto a neighbor’s property, thereby destroying or damaging the neighbor’s property.” The court’s primary aim in construing any law is to determine the legislative intent behind it, and in Rancho Viejo, the court rejected the developer’s suit and argument for trespass, claiming that a nuisance is not limited to intangible intrusions upon land. The developer could not avoid the court’s application of the statute.

Right-to-farm laws are an important step toward eliminating lawsuits by indi-viduals who have moved into new housing developments in agricultural areas, and find that the long-established farm activ-ity bordering their back fence is “offensive to the senses.” The Notice of Right to Farm/Agricul-tural Activity disclosure requirement in real estate transactions is found in Cali-fornia Civil Code §1103.4(c)3. Civil Code §1103 et seq. requires sellers of real estate and their agents to disclose natural hazards and other disclosures to prospective trans-ferees. Section 1103.4 of the Civil Code provides that where the seller and the real estate agents have exercised good faith in the selection of a third-party report pro-vider, the liability of the disclosures will shift to the third-party report provider. Years after the enactment of certain real estate disclosure statutes, a 1985 decision was rendered in Easton v. Strass-burger, 152 Cal.App.3d 90 (1984). In this landslide non-disclosure case, the court demanded that sellers and their agents disclose facts materially affecting the value or desirability of a property that are known to them or which through reasonable diligence should be known; i.e. all mate-rial facts with or without actual knowledge

AB2881One Mile Radius Farmland Disclosure of 2009

by Mailana Mavromatis-Broumand

Julie SchumerCertifiedAppellateSpecialistCertified by the State Bar of California Board of Legal Specialization

MOTiONS, APPeALS & WRiTS30 years experience

[email protected]•www.bayareaappellatelawyer.com

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Pedder, Hesseltine, Walker & Toth, LLP

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by the seller and/or the real estate agent must be disclosed. Under Easton, residen-tial home sellers also have the duty to disclose natural hazard items that are not visible to the naked eye or commonly known by the average homeowner. The location of a property in or near natural hazard zones “should be known” to its owner by virtue of the existence of relevant official maps, available at the Recorder’s Office in each county. Yet sellers were not routinely disclosing this legally required information. In 1997, as a consumer protection measure, Legislator Tom Torlakson was successful in passing a bill (AB1195) that grouped some, but not all, of the statutorily required hazard disclosures. This bill created the Natural Hazard Disclosure Statement (NHDS) §1103.2. of Article 1.7 of the California Civil Code Section, which only includes the following six state-wide hazards: 1. Special Flood Hazard Areas [42 U.S.C. 4001 et seq.]; 2. Areas of Potential Flooding due to dam failure inundation

(Government Code §8589.5); 3. Very High Fire Hazard Severity Zones [Government Code §§51178 or 51179]; 4. Wildland Areas that may contain substantial forest fire risks and hazards [Public Resources Code §4125]; 5. Earthquake Fault Zones [Public Resources Code §2622]; and 6. Seismic Hazard Zones (Landslides and/or Liquefac-tion) [Public Resources Code §2696]. Although there were many more material disclosures, not all were included in the NHDS because they did not affect all 58 counties in California or they were not in existence at the time. These disclo-sure items include (among others) Military Ordnance Sites, Industrial Use Zones, Air-port Vicinity, Mello-Roos, Special Assess-ments, and now Agricultural Activity (Notice of Right to Farm). Instead of making the NHDS a com-prehensive form with disclosure items that would not affect every county, the form was limited to the above-named six hazards that affect all 58 California counties. Torlakson acknowledged the existence

and importance of the many other disclo-sure items not listed on the form, and realized that other important disclosure related statutes may be promulgated after the passage of AB1195. As such, he added §1103.8 to Article 1.7 of the Civil Code, which states: “The specification of items for disclosure in this (NHDS) article does not limit or abridge any obligation for disclosure created by any other provision of law or that may exist in order to avoid fraud, misrepre-sentation, or deceit in the transfer transaction. The legislature does not intend to affect the existing obligations of the parties to a real estate contract, or their agents, to disclose any fact materially affecting the value and desirability of the property.” Thus, making disclosures outside the six found on NHDS form is not an option, but a requirement. u

— Malamatenia Mavromatis-Broumand (“Mailana”), legal counsel for Property I.D. (a natural hazard and environmental hazard disclosure company), has practiced land use law in the Bay Area since 1998.

20 June 2009

by Carol M. Langford

ethics corner

Lawyers work high stress jobs in a high stress world. This is particularly true in a volatile economy, where firms are laying off lawyers to staunch financial hemor-rhaging. The rewards of the profession can be great, but so are the pressures, whether we acknowledge them or not. The incidence of lawyer prescription drug and alcohol abuse is high: higher than for any other profession and far higher than the national average. If you are an intellectual property lawyer in particular, then your Myers-Briggs profile fits that of an alcoholic more than any other prac-tice area. Let’s talk about alcohol, as its use tends to increase with stress. First, lest any reader have the mistaken impression that lawyers with an alcohol problem come from less than stellar schools, are not successful, or work only in small or solo law firms, your impression is dead wrong. A high percent-age of clients with those issues come from medium and large firms and are very financially successful. Most went to top law schools. Surprisingly, they are not the “losers” of the profession. But they are unhappy, and stressed, like many of you are in this economic climate. Lest any reader have the impression that lawyers don’t do drugs, well, you are wrong again. It is true that lawyers gener-ally do not use street drugs. However, they can be big fans of prescription pain killers, anti-anxiety drugs, drugs that keep the user alert and sleeping pills. Since they are prescribed by a doctor, most lawyers can not (or will not) acknowledge that those drugs are all powerfully addicting; and, if

regularly used, are almost immediately addicting for someone with a genetic predisposition to addiction. You may have a genetic predisposition if you are a lawyer who has a parent who abused alcohol or drugs or who had a parent who engaged in problem gambling or the like. You would think that because lawyers are bright (and they are), they will know if they have a problem and seek help, but you would be mistaken. Truth be told, the overwhelming majority of lawyers with a real problem refuse to admit it, even after a DUI, a divorce or a malprac-tice suit. Often a missed deadline is the first sign of a lawyer in trouble, and not just a mistake. Does your client have an addiction issue? Some real-life statements may sur-prise you! “I don’t think I have [an addiction], but my husband thinks I do” (from a woman not long out of rehab). Or, “Why is the Bar after me? I had only one DUI!” (from a man who weighs around 140 pounds and had a BAC of 1.8 — most of us would be crawling on the floor with a 1.8). “I like strippers, I like girls, and they cost” (from someone who funded his “dates” with trust account money). And last, but not least, “Everyone smokes marijuana, I do too. So what? My wife hated it, but we are divorced” (from a lawyer who once ran a Lawyer’s Assistance Program). When told that they likely all had a problem, they were, without fail, indignant and completely disagreed with the assessment. How can lawyers be in such denial? Well, when you drink, or take prescription drugs for awhile (even if you take those

drugs for a legitimate illness), they even-tually hijack the judgment center of your brain. You can’t feel the hijacking and you don’t know when it occurs. It’s invisible, but insidious. Every single drink you take, every sleeping pill, every poker game adds a building block that becomes a chemical pathway to your judgment center. People who have a problem really don’t know it because they have lost the ability to know it. They can’t stop drinking, playing blackjack etc., because they have lost the ability on their own to recognize or do something about it. That is hard to detect since they may not have lost the ability to function as a lawyer. Know that without a properly function-ing brain, no one can stop a lawyer from whatever their addiction of choice is if that lawyer wants to continue. Crying, showing them how badly they have hurt you, threatening to leave them, putting them in rehab -- may not end the problem. The brain has been literally chemically hijacked and is no longer free to just quit. If you have more than one or two drinks one or two days a week, then you are likely not a light drinker. You are already a moderate drinker. A woman is at a low risk of having a real drinking problem only if she drinks seven or less drinks in a full week. A man is at low risk only if he drinks 14 or less drinks a week. (By the way, one drink is not a full glass of wine in a typical restaurant glass.) Even low-risk drinking becomes high risk for people with diagnosed or undiag-nosed bipolar disease or depression. Lawyers have a very high rate of undiag-


nosed bipolar disease and depression. They have a hard time recognizing this because they tend to function quite well for a very long time with undiagnosed mental ill-nesses. Drinking will throw you into a depression and trigger the manic/depres-sion cycling of bipolar disease. It is also very risky to drink if you have chronic pain or liver or heart disease. If you are drinking every day, you need to ask yourself why. It’s a tough question. If the answer is, “I am drinking because it relaxes me” or something to that effect, then you may be self-medicating an anxiety disorder or you may be depressed (depression often shows up as anxiety) and you need to tell your doctor or therapist. This is especially true if you have a parent who has or had a problem. Ask the doctor if you may have an undi-agnosed mental health issue. It may be hard to do, but your drinking or prescrip-tion drug use will not get better if you don’t address the issue. It will either continue or get worse. a personal experiMentIs it hard to stop drinking? Yes and no. I was lucky; I never had an alcohol or drug problem. But my father abused alcohol and drugs — a lot — and I knew that I might carry the unlucky “drunk/prescrip-tion drug” gene, too (my father was a highly respected surgeon). My mother does not drink, so one day I asked her “Isn’t it a social disaster not to drink?!” She said no. Since she’s happy with herself, and her modest lot in life, I figured she is rare. I decided she was not a real help and set out to conduct an experiment — not drink for one year, to see what it was like, and to report on it. So here are the results: I found that the first eight months were pretty hard; my friends poured me wine even when I said no, and told me the experiment was silly. I am single, so dates presented a challenge. Men said things like, “You must be in AA” (although I was not) with a clear indication of distaste (and being in AA should not be distaste-

ful). It’s true that at a party when others were celebrating with good champagne, I certainly wanted to drink it — but not enough to break my experimental vow. Interestingly enough, the end result was that I lost some good friends. Once I decided to continue not drinking (why tempt fate — if I have the gene, I’m a goner), I soon learned that people who smoke pot and drink like to imbibe with others. Drinkers don’t want to spend much down time on a Saturday night with non-drinkers. And when you are sober, watch-ing people with too much to drink talk loudly, argue and say cringe-inducing things makes you really glad you don’t drink. That was a real eye-opener. I have learned from my clients that if you think that you may have a problem, then you likely do. First, call the Other Bar. They have lost their funding from the State Bar, only because the Bar is cost cutting and has decimated everything that has to do in any real way with helping people with drug and alcohol problems. But the Other Bar still exists, and you can call the State Bar to get their number. Someone will literally come to your home and pick you up if you are in a bad way. It is a truly great organization. You can also call the LAP program, though it may not be the best option these days. Even if you go voluntarily, in order to be accepted into the program, you must waive confidentiality as to doctor’s reports and sometimes family and employer mat-ters. The LAP program is expensive, and their success rate is comparable to that of AA or NA. It is a good program, but again, there may be better or less onerous options. You should also attend an AA or NA meeting, and stand in the back of the room. There are a lot of very nice, bright and successful people in those organiza-tions and they are not going to hassle you if you don’t want to speak. Just sit back and listen. You may learn something. Finally, doing what you love is not just good, but necessary. It calms you down

and makes you happy. If you like to run, be sure to make time to run. Run for your life, literally. Exercise increases serotonin, which gives a feeling of well-being. Do whatever it is that makes you happy, whether it be knitting, listening to jazz or going on a road trip. Friends, family and waiters are still eager to make me drink, even after telling them of my experiment. If someone from your firm tries to push alcohol on you, and you don’t want to tell them you are afraid you could have a problem, a little white lie can’t hurt: tell them you are a diabetic and your doctor won’t let you drink. Tell them you get heart palpitations if alcohol crosses your lips. Then go home and work on developing social skills so that you are prepared for this next time it comes up. Ask someone in AA; they’ve been through this before, and they can help. Remember, every day that you don’t take a drink, use drugs, or throw your money away on card games is proof that you are a person of moral character, trying to live an ethical life. At least the State Bar would see it that way. Remember that it is not immoral to be an alcoholic, but you will act immorally if you are not doing your best to stay sober. If you decide to change your life, good luck on your journey!

— Carol Langford is a lawyer who specializes in State Bar defense, legal malpractice and admissions matters. She is an adjunct professor of ethics at U.C. Hastings College of the Law, and a former Chair of the California Committee on Professional Responsibility and Conduct.

Please send your ethics questions to:Carol Langford

100 Pringle Avenue, Suite 570Walnut Creek CA 94596

[email protected]

(If your question is answered in a future column, your name/firm name will be omitted.)

22 June 2009

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