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					       The Marin Lawyer
                                                            The Marin Lawyer



                                    An Official Publication of the Marin County Bar Association
                                    An Official Publication of the Marin County Bar Association


 August 2008                                                                                                   Volume 39, Issue 8

                                     PRESIDENT’S MESSAGE
                                     The November Ballot                                          Calendar of Events
                                     Proposition Puzzle                                           Aug 5th
                                     By Edward S. Berberian                                       Barristers’ Social
                                                                                                  Nickel Rose, 3rd and B, San Rafael
                                This November Californians will again face a                      RSVP to Scott Lafranchi
                           number of state propositions that can have a long                      Scott@angelattorney.com
                           term effect on how we live our lives or speak to how                   5:30 pm
                           we regulate the lives of others. There will be twelve                  Aug 20th
                           ballot propositions, six of which directly speak to                    Probate & Estate Planning Section Meeting
                           these issues. These six are: Proposition 4, Waiting                    750 Lindaro St., The Tamalpais Rm, San Rafael
Period and Parental Notification Before Termination of Minor’s Pregnancy, a                       12 – 1:30 pm
Constitutional Amendment; Proposition 5, Nonviolent Offenders. Sentenc-
                                                                                                  August 24th
ing, Parole and Rehabilitation Statute; Proposition 6, Criminal Penalties and                     MCBA Goes to the Ballpark (AT&T Park)
Laws. Public Safety Funding Statute; Proposition 8, Limit on Marriage – a                         1:05 PM Game SF Giants vs. San Diego Padres
Constitutional Amendment; Proposition 9, Criminal Justice System. Victims’                        RSVP to Robynn ASAP if you want to come
                                                                                                  cheer for the Giants!
Rights, Parole a Constitutional Amendment Statute; and Proposition 11, Re-
districting, a Constitutional Amendment and Statute. Several of these could                       Aug 25th
touch on areas of our practice of law – particularly in the practice of criminal                  Probate & Trusts Mentor Group
law, and perhaps to some extent our family law practice.                                          802 “B” ST., San Rafael, 12 – 1:30 pm
      It appears that every election year brings a number of voter initiatives/                   SAVE THE DATE!
propositions before the electorate. Whether these are true populist ground
swells or undertakings by those with a vested interest in getting certain legisla-                Sept. 19
tion on the books can be debated, and often is. Regardless of the motives of                      MCBA’s Second Annual Golf Tournament
the authors it is very important that the electorate look very carefully at what
                                                                                                  Nov. 15
the proposed statutes or constitutional amendments address and what the im-                       MCBA CLE Fair
                                                                        (Continued on page 8.)


In This Issue                                          PULMINARY EMBOLISM CAUSED BY BLOOD
To Blog or Not To Blog ...........................2    CLOTTING ON AIRLINE FLIGHTS:
“Of Counsel” Liability .......................... 3    A Legal Perspective
Marin County Jury Verdicts .................. 4        By Louis S. Franecke, Esq.*
“Wait and See” Policy ........................... 5
                                                            Recently, a London-based newspaper, the
2008 Nominating Committee................ 6            Observer, under the headline “Long Haul Hell,”
Nominating Committee Application ..... 7               alleged that the scale and seriousness of Deep Vein
                                                       Thrombosis (DVT) or “Economy Class Syndrome”
New Members ..................................... 14
                                                       resulting from long airplane flights has been known
Change of Scene ................................. 14   to airlines for at least 30 years. In fact, this syn-
The Marketplace ................................. 15   drome was first described during World War II when
                                                       prolonged, cramped sitting in Air Raid Shelters
 Louis S. Franecke was Guest Editor of                 during the London Blitz was frequently followed by
 this issue of The Marin Lawyer. Philip
 R. Diamond is Series Editor for 2008.                 cases of Pulmonary Embolisms.1 The first correla-            (Continued on page 8.)
                                                                                                                                             1
                                                The Marin Lawyer

TO BLOG OR NOT TO BLOG:                                         posts, readers can guarantee that “all of it agrees with my
                                                                worldview, which makes me a smaller person if I read only
That Is the Question                                            things that I agree with.”
By Rebecca Porter*                                                    Sole or small-office practitioners who don’t have other
                                                                lawyers down the hall to act as sounding boards for ideas
      “A blog is the unedited voice of a single person,” said   can substitute the blog community. “I find it rewarding
John Palfrey, executive director of the Berkman Center          to be in the midst of a conversation about issues I care
for Internet & Society at Harvard Law School. “It’s rela-       about, communicating with other lawyers, students, and
tively off-the-cuff and occasionally reflective.” Blogs are     colleagues,” said Palfrey. “The best bloggers work in some-
personal, but publicly accessible, Web pages on which the       thing of a public system and believe a strong, democratic
“owner” posts journal entries by date, discussing his or        community is about having a robust debate.”
her topic of choice. Palfrey’s blog discusses the emerging            Lawyers “like the opportunity to speak freely about
area of Internet law.1 It resides on Harvard’s server, which    things that they believe in. And apparently a lot of non-
currently hosts about 550 blogs. That number reflects the       lawyers like reading stuff that lawyers write that is more
soaring popularity of these online glimpses into the inner      down-to-earth” than formal legal writing, said Svenson.
thoughts of strangers.                                                “Trial lawyers need all the help they can get to improve
      In early 2004, the Pew Research Center estimated that     their image,” said Kennedy. “When people come in con-
of the 53 million U.S. adults using the Internet, about 2       tact with the law and lawyers, it can be in an unpleasant
percent (1.06 million) post blogs, and 11 percent (5.8 mil-     situation. To the extent that trial lawyers can explain the
lion) read them.2 According to other estimates, as many as      process through blogging, that’s a really good thing.”
8 million Americans blog.3                                            Getting Noticed
      So-called blawgs use this format to focus on legal top-         Lawyers who jumped on the Web site bandwagon to
ics.4 Blawg writers, generally lawyers or other legal profes-   establish a presence on the Internet can also use blogs to
sionals, express their thoughts about a subject of interest     make themselves known. Unlike static Web sites with con-
in a few paragraphs – unlike traditional law journal- or        tent that has to be recoded and reloaded with every change
brief-writing, but with a similar aim of analysis and assis-    (requiring staff time or a budget for hiring help), blogs
tance. Most posts include links to court opinions, articles     easily accept new information. A lawyer can use a blog to
for further reading, or other online information. Most blogs    write and share opinions, gain an audience, and establish
are updated frequently and arranged in chronological order,     expertise in an area simply by writing a short update every
with the most recent additions at the top.                      few days and clicking a button.
      Time-pressed lawyers are increasingly turning to blogs          Since Internet search engines seek out and constantly
to keep abreast of the latest legal news in areas that inter-   categorize new information, frequently updated blogs get
est them. “One reason why lawyers like blogs is that they       attention. To obtain information about someone, most
provide timely information (such as links to legal news         people first enter the person’s name in Google. If the per-
events or court decisions), but with commentary from the        son has a current blog, it will be one of the first things to
blogger. If the lawyer is knowledgeable in the area being       turn up.
discussed. his commentary carries additional weight or                “Even if I update only twice a month, that heightens
perspective,” said Ernest Svenson, who writes the widely        my visibility in search engines and gets my name out
read blog Ernie the Attorney.5                                  there,” said Carolyn Elefant, who writes MyShingle for and
      You can read a blog by going to its Internet address.     about sole practitioners and small-firm attorneys7; she also
But when your interest broadens past. say, SUV rollovers        maintains a blog on offshore renewables, one focus of her
to include Seventh Circuit opinions, vegetarian cooking,                                                     (Continued on page 10.)
and basset-hound breeding, you may find yourself visiting
                                                                              Serving the legal community of Marin since 1965
dozens of blogs daily. Then a news aggregator can save
you time.                                                                  MARIN PACIFIC COMPANY.INC.
      “Posts of interest come to you without your having to                   General Insurance Brokers and Agents
go to all the specific blogs. It’s not like receiving e-mail
messages that you have to sort through to pick out the                  PROBATE BONDING
pertinent things,” said Dennis Kennedy, a computer lawyer
and legal technology consultant who writes a tech-focused                                 453-1620
blog.6                                                           1430 Fourth Street                           Daniel C. Dufficy
      One danger of this system, Kennedy said, is that it        San Rafael, CA 94901                         Gail Anne Geary
makes it possible for blog readers to get what he calls “The
Daily Me.” By using a news reader to collect only certain          Representing major surety carriers • fast local service

2
                                                 The Marin Lawyer

“OF COUNSEL” LIABILITY                                           who is “of counsel” should have a close, regular, personal
                                                                 relationship with the affiliated firm, when an “of counsel”
By Thomas P. Sukowicz*                                           attorney would be required to decline or withdraw from
                                                                 multiple representations, no partner, associate, or other
         Lawyers associate with each other to provide legal      “of counsel” attorney of the principal firm may accept or
services in a variety of ways. Lawyers use the term “of          continue such employment.
counsel” with increasing frequency to denote relationships            The California Supreme Court came to the same con-
between attorneys and law firms. Although traditionally          clusion in Speedee Oil, stating that for purposes of conflicts
the term was used to designate semi-retired lawyers who          of interest and disqualification, an “of counsel” attorney and
desired to maintain a regular association with a law firm        the principal firm must be considered “a single, de facto
for which they were previously full-time attorneys, now          firm” so that if one of them is precluded from a representa-
it is often used to designate other kinds of relationships       tion because of a conflict of interest, the other is presump-
between lawyers and law firms, or between two law firms,         tively precluded from the representation as well.
such as:
                                                                      Although the court in Speedee Oil noted that the “of
                                                                 counsel” attorney rented space in the firm’s offices, talked
  • permanent full-time practitioners who are not on             frequently with its attorneys and discussed legal issues
    the traditional career path toward partnership in the        pertaining to cases the firm was handling, it did not rely
    firm;                                                        on those factors for its decision. Instead, it reasoned that
  • part-time affiliates of a firm who have other personal       because an “of counsel” relationship is close, personal,
    or professional commitments;                                 continuous, and regular, such a relationship justifies “a
  • potential partners brought into a firm for a probation-      presumption that client confidences will be disclosed and
    ary period;                                                  exchanged in informal consultations. Hence, the conflict
  • someone between a partner and associate; or                  of interest of one will be imputed to the other, with the
                                                                 consequence that disqualification must follow.” The court
  • retired partners.
                                                                 further explained that, from the perspective of clients and
                                                                 members of the public, “the ‘of counsel’ attorney can hardly
      Definition                                                 be distinguished from other attorneys who may be more
      ABA Formal Advisory Opinion 90-357 defined “of                                                   (Continued on page 12.)
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 ordinarily
conveyed by the term ‘associate;’ which is to say a junior
non-partner lawyer, regularly 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” relationship, the        MILLSAP, DEGNAN & ASSOCIATES, INC.
court noted “the essence of the relationship between a firm
and an attorney ‘of counsel’ to the firm is the closeness of                  Cost Consulting
the ‘counsel’ they share on client matters.” People ex rel
Department of Corrections v. Speedee Oil Change Systems,               Line Item Cost Break Downs
Inc. (1999) 20 Cal.4th 1135.
      Vicarious Disqualification
                                                                           Engineered Designs
      According to the ABA Lawyers Manual on Profes-                    Expert Witness Testimony
sional Conduct (Bur. Nat. Affairs 1990), the prevailing
view is that “for purposes of disqualification, the of counsel           We provide design insights to meet your needs.
attorney is considered to be affiliated with a firm so that
the disqualification of one from representation must be
                                                                           4280 Redwood Hwy. San Rafael, CA 94903
imputed to the other.”
                                                                             415.472.4244 office 415.472.4258 fax
      The State Bar of Georgia in its Formal Advisory Opin-                      ddegnan@millsapdegnan.com
ion No. 98-4 similarly concluded that because an attorney
                                                                                                                              3
                                                The Marin Lawyer

                  MARIN COUNTY JURY                              Plaintiff(s) Contention(s) as to Liability: that the dis-
                                                                 trict fired Plaintiff because she opposed unlawful conduct,
                  VERDICTS                                       including the disparate treatment of African American
                  By Steven Perl                                 students.
                                                                 Defendant(s) Contention(s) as to Liability: See above.
        The Marin Lawyer will periodically report on jury
verdicts from the Marin County Superior Court. We wel-           Length of Jury Trial: 5 weeks
come reports from trial attorneys involved in Marin County       Jury Deliberated: Three hours
verdicts; please contact Steven Perl (SPerl@co.marin.
                                                                 Plaintiff Attorney asked the Jury to Award: $1,134,782
ca.us) with your information.
                                                                 Defendant Attorney asked the Jury to Award: nothing
Windsor v. Sausalito School District                             Injuries/Damages:
Complete Title of Plaintiff(s): Christina Windsor                Plaintiff Doctor/Expert Stated: NA
Complete Title of Defendant(s): Sausalito School District        Defendant Doctor/Expert Stated: NA
Case Number: CIV 012272            Insurance Carrier(s): NA      Residuals: N/A
Plaintiff Attorney(s)/Phone No(s): Amanda Metcalf,               Specials/Damages: $134,782 in lost wages and $1,000,000
415/454-0945; Jean Hyams, 510/835-8870; Peter Rukin,             for emotional distress.
415/421-1800                                                     Settlement Talks:
Defendant Attorney(s)/Phone No(s): Dennis Walsh,                 Demand: $300,000
818/986-1776
                                                                 Offer: $25,000.
Plaintiff Doctor(s), Field, Address: NA
                                                                 Result: Defense verdict
Defendant Doctor(s), Field, Address: NA
                                                                 Poll Result: 10-2
Plaintiff Expert(s), Field, Address: Margaret Golden
(education)                                                      Verdict Date: February 20, 2008
Defendant Expert(s), Field, Address: NA
Judge: Hon. Lynn O’Malley Taylor                                           “Providing Complete ADR Services!”
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                          JUDGE MICHAEL J. BERGER*                   PATRICK M. BRODERICK
                                                                    JUDGE RICHARD H. BREINER*                  CLAYTON E. CLEMENT
Residence: Currently, Nebraska                                      HON. JEANNE M. BUCKLEY*                    W. GREGORY ENGEL
Facts of Case: This case involves a claim of wrongful               JUDGE VICTOR M. CAMPILONGO*                HOWARD M. GARFIELD
                                                                    JUDGE THOMAS DANDURAND*                    PERRY D. LITCHFIELD
termination brought by Christina Windsor, an African-               JUDGE JOHN J. GALLAGHER*                   GARY T. RAGGHIANTI
American, against her former employer, the Sausalito                JUDGE ISABELLA H. GRANT*                   PAMELA M. SAYAD
School District. Ms. Windsor moved from Iowa to serve               JUDGE INA LEVIN GYEMANT*                   MICHAEL D. SENNEFF
as a Principal of the District’s two elementary schools             JUDGE HADDEN ROTH*                         ERIC STERNBERGER
beginning in July of 1999. The District terminated Ms.              JUDGE VERNON F. SMITH*                     GARY A. WEINER
Windsor’s employment in August 2000. Ms. Windsor                                                               MATTHEW N. WHITE
claimed that the she was discharged because she objected to                                                    W. BRUCE WOLD
or refused to participate in activities that she believed were
unlawful (race-based student disciplinary practices and              Look for us on the Web-www.resolutionremedies.com
other differential treatment of black and white students).           *Retired
The District denied Ms. Windsor’s allegations and claimed
that it terminated her employment because she refused to
                                                                    Diane Levinson-Fass, President                Diane Story, Vice Pres.
take a California credentials examination on the date the
District had ordered her to take it.                                            For more information call:   (800) 778-2823
4
                                                The Marin Lawyer

                                                                Shield, have to initially investigate whether consumers
COURT SAYS INSURANCE COM-                                       are eligible for policies, rather than collect premiums, and
PANY’S ‘WAIT AND SEE’ POLICY                                    then wait until the policyholder files a claim. According
VIOLATES CALIFORNIA LAW                                         to the Hailey ruling, insurance companies must prove that
                                                                an applicant willfully misrepresented information on the
By Maria Pecot*                                                 application to rescind a policy.
                                                                     The case, which was previously dismissed by a lower
      Health insurance is on everyone’s minds these days.
                                                                court, involves Steve Hailey, a small business owner from
It has become a focal point in the campaigns of the lead-
                                                                Orange County, and his wife, Cindy. In 2001, Steve was
ing presidential candidates. A November 2007 Gallup
                                                                involved in a major car accident. Initially, his medical bills
Poll reported that 81 percent of Americans are dissatisfied
                                                                were covered under a Blue Shield policy in which Cindy
with the cost of health care in the country and 73 percent
                                                                had enrolled him. Once his medical expenses reached
of people thought that the American health care system
                                                                $450,000, however, Blue Shield canceled his coverage
was in a state of crisis or had major problems. Movies, like
                                                                and demanded that he repay over $104,000. Blue Shield
Michael Moore’s SICKO, present frightening and disturb-
                                                                accused the Haileys of omitting a slew of health problems
ing worst-case scenarios where health-care companies
                                                                from their application, and underreporting Steve’s weight
have failed their insureds, with the result sometimes being
                                                                by about 50 lbs. Cindy, who filled the application out for
suffering and death.
                                                                herself, her husband and their teenage son, said the ap-
      Perhaps the most frightening aspect of health care in     plication did not ask about her husband and son’s health
this country is that it’s not just the poor and uninsured who   histories, only her own. She said the lack of clarity in the
are not getting proper health care. Middle class people and     application instructions led to the alleged omissions. The
insured workers, who believe they have adequate coverage,       court agreed that Blue Shield’s application was written in
are being denied access to health care by their policies,       a way that could cause confusion. In an opinion written
when they become sick or injured.                               by Justice Richard M. Aronson, the court said the applica-
      Post-Claim Underwriting                                   tion, “although understandable upon close examination
      The practice of post-claim underwriting - when an         and reflection, is no model of clarity, and lends credence
insurance company investigates a policyholder’s applica-        to Cindy’s explanation of her omission of Steve’s health
tion for omissions and inaccuracies, after a claim is filed     information.”                           (Continued on page 13.)
- has been going on for a long time and is in violation of
California law, says Bill Shernoff, a plaintiff’s attorney in
Claremont who specializes in badfaith insurance law. As
Shernoff contends, Health and Safety Code section 1389.3
clearly prohibits the rescission of a plan due to the “plan’s
failure to complete all medical underwriting and resolve
all reasonable questions derived from written information                      is pleased to announce that
on or within an application before issuing a contract.” The
                                                                   Eric Sternberger has joined the firm as a partner.
law was designed to prevent people from losing coverage
when they need it the most – particularly because, once
someone has a major medical problem on his or her record,               Mr. Sternberger will be establishing a corporate
it is nearly impossible to obtain a new policy.                      transactional department at the firm. He will continue
                                                                    representing Angel Investors and businesses as outside
      In recent years, there has been a surge of bad-faith           general counsel on all transactional matters, including
insurance cases arising from post-claim underwriting. De-           contracts, mergers and acquisitions, joint ventures and
spite the law, the courts have typically sided with defense           succession planning. In addition, he will continue to
attorneys who argue that post-claim underwriting is not            maintain his mediation and complex business litigation
the same as a post-claim investigation. Almost all cases              practice. Mr. Sternberger is a Marin County native, a
                                                                   Director of the Marin County Bar Association, incoming
having to do with post-claim underwriting are thrown out            President of the Richard M. Sangster American Inns of
in the pre-trial phases.                                          Court, and Chair for the Partnerships and LLC Committee
      The Changes After Hailey                                    for the Business Law Section of the State Bar of California.
      California’s 4th District Court of Appeal may have
changed all that. In Hailey v. the California Physicians’                          Ragghianti Freitas LLP
Service (Jan. 22, 2008, G035579) _ Cal.Rptr.3d _ [2008 WL            874 Fourth Street, Suite D • San Rafael, CA 94901
186145], the court ruled that health insurance companies                     (415) 453-9433; Fax (415) 453-8269
such as California Physicians’ Service, a subsidiary of Blue              eric@rflawllp.com • www.rflawllp.com

                                                                                                                                 5
                                              The Marin Lawyer

2008 NOMINATING COMMITTEE
                                                                                                              Building
                                                                                                                YOUR
     The 2008 Nominating Committee will be established                                                       Business
                                                                                                               is OUR
per Section 2.3 of the Marin County Bar Association                                                          Business
by-laws.
     Any members interested in becoming an officer or                           Introducing
director for the year 2009 term must submit a written                          THE VIDEO BUSINESS CARD
application. The application must be received by Sep-                          For a demonstration, visit our Web site
                                                                               at ww.BusinessGreetingCards.com.
tember 1, 2008. The form may be found on page 7 of
this newsletter.                                                Personalized, Professional

     The Nominating Committee will make its report of           BUSINESS GREETING CARDS
nominations for officers and directors at the September         A cost-effective way to enhance your marketing
                                                                efforts! Choose from...
general membership meeting. At any time before October                  Client Retention and Referral Development
1. 2008, any active member who was not nominated and                    Programs
who meets the required qualifications, may be nominated                 Client and Employee Appreciation Programs
for any office to be filled by nomination in writing signed             Invitations and Announcements
by at least 10 active MCBA members and presented to the                 Business Greeting Cards for all Occasions
                                                                           • Birthdays
MCBA Secretary. The final slate will be published in the                   • Holiday greetings
October newsletter and on the MCBA website.                                • Thank yous
                                                                        Fulfillment / Mailing Services
     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 writ-                To learn more, please call (415) 209-6640
                                                                                or visit our Web site at
ten secret ballot of the general membership by mail for                  www.BusinessGreetingCards.com
each contested office prior to the November membership
meeting.


                                                                     MEDIATOR/ARBITRATOR
 LAWYER REFERRAL SERVICE PANEL
                                                                  GARY P. OSWALD
     We need attorneys for our Lawyer Referral                 ____________________________
        Service panels in the following areas:
     Tax, Workers Compensation, Juvenile, and                                Extensive Experience in
                                                               • Real Estate Disputes           • Construction Defects
                     Education.
                                                               • Neighbor Disputes              • Common Interest
           Contact: Jan at (415) 499-1813                      • Tree Disputes                    Subdivision Disputes
       for an application or more information.

                                                                                      35 Years Litigation Experience
                                                                                      Mediator/Arbitrator - 15 Years
               SAVE THE DATE                                                          Real Estate Law Instructor,
                                                                                      College of Marin
    MARIN COUNTY BAR ASSOCIATION’S
                     CLE FAIR                                                         Martindale Hubbell A-V Rated

        SATURDAY, NOVEMBER 15, 2008

    Earn CLE credits in Legal Ethics, Detection/Pre-          Law Offices of Gary P. Oswald, 100 Tamal Plaza, Suite 140
                                                                             Corte Madera, CA 94925
     vention of Substance Abuse and Elimination of
                                                                      415/927-5700 phone, 415/927-5705 fax
        Bias in the Legal Profession, and more!                               www.garyoswaldlaw.org

6
                                                           The Marin Lawyer

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 94903. All applications must be received, in hand, by the
close of the business day, September 1, 2008. 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 2008. 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
                                                 The Marin Lawyer
(President’s Message, continued from page 1.)                     (Pulmonary Embolism, continued from page 1.)
plications will be if they are enacted. Do not assume that a      tion between DVT and prolonged air travel was presented
title for a proposition explains in sufficient clarity what the   by two cases in 1954 by Homans.2 The best known case
legislation will establish. The Attorney General is tasked        of DVT related to air travel was that of former President
with titling the proposition in a nonpartisan/neutral fashion     Richard M. Nixon who continued a long trip to Egypt and
– oftentimes not an easy task. In crafting the title to meet      the Soviet Union suffering bouts of pulmonary embolisms
that neutral objective the critical issues addressed may be       in 1974.1.
obscured. We must take the time to read the language of
the proposition and gleen its meaning. The old adage “the               In truth, because the symptoms of DVT manifest
devil is in the details” rings true.                              themselves one to five days after the trip, many cases are
                                                                  not understood or reported as being related to the airline
      Here are some of the core issues to consider. Propo-        travel itself. A study from London’s Heathrow Airport
sition 4 – What are a parent’s rights with respect to their       published in 1986 showed that during a three-year period,
children’s right to life choices? Proposition 5 – Is this         18% of the sudden deaths among long distance passengers
truly dealing with only “non-violent” offenders? What             was caused by pulmonary embolisms. This was the most
are its economic costs and impacts on our state budget?           common cause of death other than ischemic heart disease
How does it affect the way we process our criminal cases          in that study.3
today? Will it improve the current system? Proposition 6                Various studies and papers can be found in the medi-
– Are the enhancements to the criminal sanctions justified,       cal literature under “Economy Class Syndrome” or “Risk
particularly in the gang violence area? Are the proposed          Factors of Venous Thrombolism” following prolonged air
funding shifts justified? Proposition 8 – Should the state        travel. In these articles, the authors cannot find specific
regulate marriage based on gender? Proposition 9 – What           correlation between the length of the flight (3 to 10 hours
are a crime victim’s rights? Are there, or should there be        suffices) and the occurrence of pulmonary embolisms (PE),
limits to these rights? Can the proposed modifications to         nor between the development of PE and the individual pa-
California’s existing victim rights laws prove workable?          tient’s number of risk factors (various combinations are all
Proposition 11 – What are the long term effects of changing       present).4 Thus, anyone and everyone is at risk. A flight to
the redistricting maps for California? Will that result in        Dallas has the same risk as a flight to London.
a significant change in the current political configuration             The risk factors can be classified as Cabin Related
of the state? Will the body that is proposed to make the
redistricting decisions truly be free from political pres-                                                 (Continued on page 9.)
sures? These are interesting questions and ones not easily
answered.                                                                       WILLIAM J. O’CONNOR
      As the date of our decision draws closer we will be              MEDIATOR/ ARBITRATOR/ SPECIAL MASTER
bombarded with endless political ads from opposing points                      30 Years Trial and Litigation Experience
of view. The cynical may say we will be bombarded                            Panelist for Kaiser Malpractice Arbitrations
                                                                                  10 Years Settlement Judge Pro Tem
from the opposing points of self-interest. Our duty, and                    5 Years as Commissioner - SF Superior Court
responsibility, is to cut through the fog of partisan politi-              10 Years Superior Court Arbitration Experience
cal rangling and decide what is in the best interests of our                  Past Chair - Marin Bar Assn. ADR Section
citizenry and vote with that purpose in mind. I urge you
to read, analyze and VOTE.                                             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
                                                                                  www.mediate.com/ADRservices
                               ♦
                                                                                                 William J. O’Connor
                               ♦                                                           Law Offices of William J. O’Connor
                               ♦                                                                  19 Fallen Leaf Way
                                                                                                  Novato, CA 94949
                               ♦
                                                                                                  415-382-1531 Phone
                                                                                                   415-382-1539 Fax
                                                                                            oconnoradrservices@sbcglobal.net


8
                                                  The Marin Lawyer
(Pulmonary Embolism, continued from page 8.)
                                                                  airline negligence), for injury to a passenger resulting from
and Patient Related factors. Cabin Related factors are
                                                                  an “unusual or unexpected event” during an international
immobilization, sitting position, hard seats, low air pres-
                                                                  flight. At the same time, however, the Convention and
sure, relative hypoxia, low humidity and dehydration. The
                                                                  Protocol, where applicable, cap the passenger’s recover-
Patient Related factors are overweight, chronic heart dis-
                                                                  able damages at approximately $167,000 (absent proof of
ease, hormone therapy, malignancy, previous DVT, recent
                                                                  negligence, in which case damages are unlimited). The
surgery, injury, and smoking to name a few. During quiet
                                                                  Courts have interpreted an “unusual or unexpected event”
sitting in an airplane cabin over a period of time with low
                                                                  to mean that a passenger’s individual reaction to the normal
air pressure, relative hypoxia, and low humidity, many
                                                                  and expected flight operations of the aircraft do not cause
complex rheological and biochemical alterations take place
                                                                  liability for the carrier. In other words, if you are sitting
in the lower limbs. The Venous Flow velocity is two-thirds
                                                                  in a seat provided by the carrier and you sustain a stroke
less in persons who are sitting than in one who is supine.
                                                                  or have a heart attack after the flight, it is not the carrier’s
The decreased cabin air pressure with relative hypoxia and
                                                                  fault because nothing unusual happened.
low humidity also distinguishes air travel from other types
                                                                        Recently, this view has come under considerably more
of traveling.1.
                                                                  attack as the evidence has become clearer that airlines were
      Also, an understanding of the air travel environment
                                                                  well aware of this danger and did nothing to avoid it by
is helpful. A typical economy class seat is built to provide
                                                                  providing the proper seats, equipment, or warnings to the
a minimal amount of comfort and a maximum amount of
                                                                  traveling public who are totally within their care and control
durability. Consequently, the seat portion is relatively hard
                                                                  while on board the aircraft. This is no different from the
and thus constricting to the veins in the upper portions of
                                                                  requirement of the airlines to provide a seatbelt knowing
the legs. This adds to the risk factors of constricting flow
                                                                  that turbulence is a possibility during the flight.
of the blood from the lower extremities while in the seated
                                                                        For example, in In re Deep Vein Thrombosis Litig.
position.
                                                                  U.S. Dist. Ct., N.D. Cal., No. M:04-CV-01606, October
      Clearly, from a medical standpoint, anyone contemplat-
                                                                  12, 2007, the court denied defendants summary judgment
ing an airline trip, especially after surgery or who has the
                                                                  in several cases brought by airline passengers against
other risk factors, needs to be aware of the potential problem.
                                                                  airlines where plaintiffs alleged that DVT-related injuries
The literature indicates that the more risk factors present the
                                                                  occurred during or after international flights. The court first
more likely the development of DVT during the flight.
      Preventive measures include drinking adequate fluids,                                                    (Continued on page 10.)
avoiding smoking, and periodic exercise in the seat; aspirin
may also help, as well as loose fitting clothing and any                  A. MAGGI SAUNDERS & ASSOCIATES
other preventative specified for the individual risk factors
for the specific person.5.                                                    Ser ving the E ntire B ay Area s inc e 197 4
      Sadly, it has been only recently that any of the airlines        415-383-6281 (office)             415-823-3790 (mobile)
have acknowledged this danger despite their knowledge of
                                                                                      maggisaunderscsr@neteze.com
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                “In a deposition, the Court Reporter
information and warning the passengers of the risk of DVT.                       is your biggest asset”
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 Conven-
tion of 1929 (“Convention”) and its most recent iteration
known as the Montreal Protocol of 1999 (“Protocol”) of             Labor & Employment, Civil Rights, Medical Malpractice, Complex Personal
                                                                       Injury, Construction Defect, Product Liability, Commercial Business
which the United States is a signatory. Article 17 of the
Convention provides for liability (without respect to any               The best court reporter always gets the last word!

                                                                                                                                             9
                                                  The Marin Lawyer
(Pulmonary Embolism, continued from page 9.)                       (Blogging, continued from page 2.)
distinguished these cases from others it dismissed because         energy-regulation practice.8 When readers see Elefant’s
those cases alleged that airlines were negligent by failing        name in search engines and on her blogs, they might seek
to warn against DVT, which the court wrote is an “internal         out her Web site, which contains in-depth information about
reaction to the normal operation of the aircraft” and thus         her practice. “A blog can jump-start the process of driving
not an “accident” under the Convention.                            traffic to a static Web site,” she said.
      However, in one case, a passenger developed DVT                    Perils of Posting
after a flight during which she asked to be reseated because             Anyone can read blogs, choosing the depth and breadth
of her extremely cramped seating area, but was refused             of their exposure according to personal taste. Writing a blog,
a seat with more space although several were available.            however, comes with a few caveats. “The biggest drawback
The court held that a reasonable jury could find that the          is that it takes time, and writing is hard,” said Svenson. “If
airline’s refusal to reseat was an unexpected or unusual           you don’t like to write, then don’t even consider blogging.
event constituting an accident and was a causal link in the              In addition, maintaining a blog takes time: Even writ-
development of DVT.                                                ing short posts of one or two paragraphs requires research
      Also, in another case, a passenger developed DVT and         if links to other sources will be included, as well as editorial
sued the airline, alleging that a two-hour weather delay –         effort to make a few sentences conveying an idea as clear
during which time the plane was grounded and passengers            and strong as they can be. Some lawyers might prefer to
were kept seated – was an accident under Article 17. The           establish camaraderie by playing softball or networking at
court held that although no reasonable jury could find that        the Rotary Club.
a weather delay is an unusual or unexpected event in air                 Also, attorneys who gather information about a pet topic
travel, “[f]orced prolonged sitting may qualify as an ac-          to share on a blog may be doing the work for other “free
cident depending on the surrounding circumstances.”                riders,” Elefant said. “I wonder a little whether attorneys
      Likewise, since the onset of pulmonary embolism              who spend a lot of time on a Web log might be offering too
from air flight is not limited to international flights, but can   much content and that maybe other firms are using it to their
result from only a few hours of sitting on an aircraft, our        advantage,” she said. “For example, if you’re running a blog
United States carriers are similarly exposed to liability, but     on employment law, perhaps another law firm, instead of
under different law. The U. S. carriers are not subject to the     referring potential clients to you, is taking the information
Convention if the flight is domestic in nature. Therefore,         and using it themselves.”
the normal rules of Negligence and Strict Product Liability              Some critics question the credibility of information
are in effect, depending upon the state or jurisdiction in         posted on blogs without the traditional publishing checks
which a lawsuit might be brought.                                  for accountability. “No question, there is poor information
      In conclusion, Economy Class Syndrome, Pulmonary             out there, and there are real dangers for lawyers in trusting
Embolism or Deep Vein Thrombosis caused by air travel              unworthy sources,” said Palfrey. “Reading [blogs] takes a
is a risk that passengers share anytime one boards an air-         certain skill and something of an eye and ear – as opposed
plane. Simple preventative knowledge and the exercise of           to reading the work of a trusted journalist, when you know
simple preventative techniques will minimize or eliminate          there have been layers of fact-checking and editing. It can
the risks.                                                         be a trap for the unwary.”
      *Louis S. Franecke is an Aerospace Engineer and                    Bloggers can bolster their legitimacy by posting
Attorney with offices in San Rafael. He is board certified         biographical and contact information and disclosing any
by the National Board of Trial Advocates and specializes           activities or affiliations that might influence their opinions.
in Aviation and Personal Injury litigation.                        Bloggers may have a readership, but they generally don’t
(Endnotes)                                                                                                (Continued on page 11.)
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; Hematol-                                                   Specialist
ogy, Oncology Clinics of North America, Volume 14, No. 2, 2000.                                                    Since 1946
2.
   Homans J. Thrombosis of the Deep Leg Veins Due to Prolonged
Sitting. N.Engl. J. Med. 1954; 250:148-149, 1954.
3.
    Sarvesvaran R. Sudden Natural Deaths Associated With Com-                              Medical
mercial Air Travel. Med. Sci. Law 1: 35-38, 1986.                         Dental - Vision - Life - Disability
 4.
    Arfvidsson B, Risk Factors for Venous Thromboembolism Fol-
lowing Prolonged Air Travel; a “Prospective Study”. Vascular                   For Quotes call (800) 862-4243
surgery 33:537-544 1999.                                                              Insurance License# 0F04106
5.
    Sahiar F., Mohler, S., Economy Class Syndrome. Aviat. Space
                                                                     San Bruno, CA 94066                  www.myersstevens.com
Environ. Med. 1994: 65:957-960.
10
                                                       The Marin Lawyer
(Blogging, continued from page 10.)
have a background in journalism or follow that profession’s
rules regarding fairness, balance, editing, and fact-checking.                 PHILIP R. DIAMOND
Those who are familiar with journalism ethics codes can add                                    MEDIATOR
to their credibility by following those principles.9
      A cautious lawyer’s blog will carry a disclaimer saying                  EXPERIENCED • EFFECTIVE • DEDICATED
its content does not constitute legal advice and does not create
an attorney-client relationship. Considering how courts have
treated other electronic communication, particularly e-mail,                                    Philip R. Diamond is a talented, hard
a cautious “blawger” should also keep in mind that the libel                                    working mediator, who is committed
                                                                                                to shepherding all matters through to
laws that affect printed material could also apply to blogs.                                    resolution. His wide-ranging media-
      *Rebecca Porter is an Associate Editor for Trial magazine.                                tion and civil litigation experience
      Notes                                                                                     includes:
      (Endnotes)
      1 http://blogs.law.harvard.edu/palfrey.
      2 AMANDA LENHART ET AL., PEW INTERNET & AM.
LIFE PROJECT, CONTENT CREATION ONLINE. Feb. 29, 2004,                     • Construction and Real Estate       •   Professional Liability
                                                                          • Commercial and Residential         •   Insurance
available at http://207.21.232.103/pdfs/PIP_Content_Creation_Re-
                                                                            Landlord/Tenant                    •   Product Liability
port.pdf (last visited Dec. 2, 2004).                                     • Business Disputes and Litigation   •   Wills and Trusts
      3 See Rick E. Bruner, Blogging Is Booming, IMEDIA CON-              • Employment                         •   General and Toxic Torts
NECTION, Apr. 5, 2004, at www.imediaconnection.com/con-                   • Personal Injury
tent/3162.asp (last visited Dec. 2. 2004).
      4 See www.blawg.com for a list of more than 600 law and legal-
                                                                            LAW & MEDIATION OFFICES OF PHILIP R. DIAMOND
related Web sites; the Daily Whirl, www.dailywhirl.com, provides                     4040 CIVIC CENTER DRIVE, SUITE 200
headlines from more than 100 such sites.                                                SAN RAFAEL, CALIFORNIA 94903
      5 www.ernietheattorney.net                                             TELEPHONE (415) 492-4500 • FACSIMILE (415) 388-8257
      6 www.denniskennedy.com                                                        email: philipdiamond@comcast.net
      7 www.MyShingle.com
      8 www.renewablesoffshore.blogspot.com
      9 Check the Web sites of the Society of Professional Journalists
(www.spj.org/ethics_code.asp.), the Associated Press (www.apme.
com/ethics), and most major metropolitan newspapers. John Hiler’s
online magazine for bloggers, Microcontent News, has an interest-
ing post comparing traditional print and broadcast journalism ethics
codes with blogger ethics (www.micro-contentnews.com/articles/
                                                                                                   Drunk Driving
                                                                                                       and
bloggingjournalism.htm) (last visited (Dec. 2, 2004.)


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                                                                                                                                             11
                                                The Marin Lawyer
(Of Counsel, continued from page 3.)
closely tied to a firm financially.”                                • the control the firm had over the attorney in client
      Other jurisdictions have taken a more fact-based ap-             selection and case handling; and
proach under which an “of counsel” lawyer and the prin-             • whether the lawyer was covered under the firm’s
cipal law firm may not necessarily be considered one firm              health and malpractice insurance policies.
for purposes of conflicts of interest. In Gray v. Memorial             Because there was a genuine issue of material fact as
Medical Center, Inc. (S.D.Ga. 1994) 855 F.Supp. 377, the         to this issue, summary judgment was reversed, but the court
court distinguished between “of counsel” who had a close,        left open the possibility that under the right circumstances
personal, continuous, and regular relationship with the          the “of counsel” attorney could be liable for the firm’s
principal firm and “a de minimus of counsel, an indepen-         malpractice.
dent contractor working part time for the firm.” The court             In another case, the converse was considered: whether
in Gray stated that it “cannot envision a more peripheral        a law firm could be vicariously liable for the malpractice of
relationship between an attorney and a law firm than that        an attorney associated with it in an “of counsel” capacity.
presented by these unique circumstances.” In Gray, the “of       In Staron v. Weinstein (1997) 305 N.J. Super. 236, 701 A.2d
counsel” attorney was located in another town, his involve-      1325, an attorney failed to file a case within the applicable
ment with firm cases was limited to sporadic consultation,       statute of limitations. At the time the plaintiff retained him,
and the firm had absolutely no involvement with the at-          the attorney was “of counsel” to a firm. While the case was
torney’s cases or those of his firm.                             pending, the firm informed him that it was terminating the
      Material Limitation                                        “of counsel” relationship. The firm notified all clients of
      Rhode Island Supreme Court Ethics Advisory Panel,          which it had knowledge of the termination of that relation-
Opinion No.99-D9, concluded that when the “of counsel”           ship. The firm was not aware, however, of one client, the
attorney and the law firm have separate offices, separate        one whose case was not filed within the statute of limita-
practices, and no access to each other’s files, they should      tions. Consequently, that client was never informed that
not be considered one firm for purposes of conflicts of in-      the lawyer was no longer “of counseI” to the firm. The “of
terest. It cautioned, however, that the attorneys also had to    counsel” attorney’s malpractice occurred a year after the
consider their affiliation would be a “material limitation”      relationship had terminated.
on the representation within the meaning of Rule 1.7(b),               In the legal malpractice case brought against both the
which prohibits a lawyer from representing a client if that      “of counsel” attorney and the firm, the firm contended that
representation may be materially limited by the lawyer’s         because it was no longer associated with the “of counsel”
responsibilities to another client or to a third person, or by   attorney when the alleged malpractice occurred, it could
the lawyer’s own interests. If the representation would be       not be liable for that malpractice. The court found genuine
materially limited by the affiliation, the representation may    issues of fact existed and reversed summary judgment
be undertaken only if the lawyer reasonably believes the         entered in favor of the firm on that issue.
representation will not be affected and obtains the client’s           The court rejected the theory that the firm was not li-
consent after consultation.                                      able as a matter of law for any malpractice committed by
      Vicarious Liability                                        the “of counsel” attorney, holding that plaintiffs made a suf-
      Because the “of counsel” relationship is considered to     ficient showing that the firm became counsel for plaintiffs
be close, personal, regular, and continuous, it also creates     by virtue of both the retainer agreement and the fact that
a risk of vicarious liability for legal malpractice.             the “of counsel” attorney had at least apparent authority
      In Hart v. Comerica Bank (E.D.Mich. 1997) 957              to enter into such agreements on behalf of the firm. Hav-
F.Supp. 958, an attorney who was “of counsel” to a law           ing become counsel for plaintiffs, it was the responsibility
firm was sued for legal malpractice under the theory of          of the firm to either terminate the representation or give
respondeat superior for the negligent acts of attorneys in       notice that it was terminated by virtue of the “of counsel”
that firm. The attorney argued that, as “of counsel,” he was     attorney’s departure.
not a member of the firm.                                              In another case, however, the court found that the law
      The court did not decide this issue as a matter of law     firm was not liable for the acts of the attorney affiliated with
but looked to the facts on both sides of the question. Among     it as “of counsel” based on the client’s lack of reliance on
the factors considered by the court were:                        any representation that the attorney was affiliated with the
   • the manner in which the attorney held himself out and       firm, the personal nature of the legal services to have been
      rendered services to the public;                           rendered by the attorney, and the lack of remuneration to
   • the entity to whom the clients paid their bills;            be paid to the firm. Homa v. Friendly Mobile Manor, Inc.
   • the name on invoices and letterhead;                        (1992) 93 Md.App. 337, 612 A.2d 322, cert.granted, 329
   • whether the lawyer shared office space with the             Md. 168, 617 A.2d 1085, and cert. dismissed, 30 Md. 318,
      firm;                                                      624 A.2d 490 (1993).
                                                                                                        (Continued on page 13.)
12
                                                 The Marin Lawyer
(Of Counsel, continued from page 12.)
     Risk Management                                              operation was delayed until the condition became life-
     Whether courts take the prophylactic approach of the         threatening. To save his life, Steve finally got the operation,
California Supreme Court in Speedee Oil or conduct a fac-         but at that point he had become permanently disabled. He
tual inquiry into the nature and extent of the “of counsel”       now relies on a catheter to empty his bladder, and he is no
relationship, lawyers should be aware of their exposure to        longer able to work, the Haileys said.
vicarious claims of legal malpractice arising out of an “of            Only one percent of every 1,000 policies that Blue
counsel” relationship.                                            Shield investigates for application omission and misstate-
     Because one of the factors considered by the courts          ments are canceled. Blue Shield used this fact in its de-
may be the knowledge of and reliance by the client on the         fense, but the court was not persuaded. “These facts raise
“of counsel” attorney’s affiliation with the law firm, the        the specter that Blue Shield does not immediately rescind
precise nature of the relationship between the “of counsel”       health care contracts upon learning of potential grounds
and the law firm should be described fully and accurately         for rescission, but waits until after the claims submitted
in all communications with the public or with individual          under the contract exceed the monthly premiums being
clients. Clients of the firm should be informed of any par-       collected,” the court stated.
ticipation the “of counsel” may have in handling the legal             The court also noted that, “Assuming the truth of the
matter. Conversely, clients of the “of counsel” should be         Haileys’ evidence, the tragic situation that they now find
informed of any participation of the law firm.                    themselves in could have been averted, had Blue Shield’s
     The conflicts databases of the law firm and its “of          agent or underwriter simply asked Cindy if she had included
counsel” should be examined for conflicts at least when an        information about her husband and son.” The court’s ruling
engagement of both the firm and its “of counsel” is made.         will allow the Haileys to bring their case in front of a jury.
Because some courts treat the law firm and its “of counsel”            What is the real cost of the court’s ruling? Blue Shield
as one firm for conflicts purposes, the conflicts databases       spokesman Tom Epstein says that requiring insurance
of both should be checked before every engagement.                companies to investigate every question on the application
     Finally, if the affiliation between the law firm and “of     before issuing a policy would create a lot of unnecessary
counsel” is close, both should consider obtaining insurance       work. According to Epstein, such a requirement would
coverage from the same carrier to insure that all lawyers         lengthen the application process and make insurance even
are covered.                                                      more expensive for consumers.
     *Reprinted with permission of Thomas P. Sukowicz,                 Shernoff, who filed an amicus curiae brief in the
director of Lawyers’ Risk Management Services at Hin-             Hailey case, says that these types of arguments have long
shaw & Culbertson. Mr. Sukowicz works out of the firm’s           been used by insurance companies and that he “has a hard
Ft. Lauderdale, Florida, and Chicago, Illinois, offices.          time accepting this sort of explanation because they (the
The firm’s risk management Web site is located at www.            insurance companies) make so much profit.” Last quarter,
lawyerlnglaw.com                                                  Wellpoint (Blue Cross of California’s parent company) had
                                                                  profits of $859.1 million. Shernoff says they would have
(Wait and See, continued from page 5.)                            to spend only a few million dollars to follow the law and
                                                                  do the proper underwriting before approving applications
     Blue Shield first looked into Steve’s medical records in
                                                                  and collecting premiums from policyholders.
February of 2001, two months after they issued the family’s
policy. Steve had been hospitalized for stomach problems,              Shernoff says that the Hailey case is a huge victory
and that claim prompted Blue Shield underwriters to con-          because the milestone ruling will allow more of these types
duct an investigation. His prior medical records revealed         of cases to go to trial. This would give plaintiffs more
he had a history of obesity and hypertension. Six weeks           power, leading to heftier settlements and possible punitive
later he was involved in the car accident. The day after he       damages. And while the Haileys and their lawyer, Michael
was released from the hospital, Blue Shield canceled his          Nutter, are happy about the court’s decision, they will have
policy. Cindy says that if Blue Shield had contacted her          to wait and see if the ruling sticks. On February 5, 2008,
in February, when they first noticed a problem with the           Blue Shield filed a petition for review with the California
application, she could have secured health coverage for           Supreme Court.
her husband and her son through her employer, well before              *Maria Pecot grew up in the Bay Area and attended
the accident occurred.                                            the University of California Berkeley, where she earned
     Steve Hailey sustained a torn urethra and other injuries     her Bachelor’s degree in Political Science with a focus
from the collision. After Blue Shield canceled the Haileys’       on American Politics. She currently works as a freelance
policy, the family could not afford the rehabilitative services   writer, fashioning articles on a wide array of subjects. She
and other vital medical care Steve needed. A badly needed         lives in Oakland.

                                                                                                                              13
                                             The Marin Lawyer


     NEW MEMBERS                                      CHANGE OF SCENE

     Bernadette Bantly                                  Elaine Andrews
     Bradley, Curley, Asiano, Barrabee & Gale PC        410 Fair Street
     1100 Larkspur Landing Cir, Suite 200               Petaluma, CA 94952
     Larkspur, CA 94939                                 707-773-1375 Fax: 707-773-2705
     464-8888x264 Fax: 464-8887                         elaine@theandrewslawfirm.net
     bbantly@professional-law.com
                                                        Judith Austin Brown
     Mikal J. Condon                                    Law Office of Judith Austin Brown
     Boies, Schiller & Flexner LLP                      68 Mitchell Bl., Suite 200
     1999 Harrison St., Ste. 900                        San Rafael, CA 94903
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      mcondon@bsfllp.com
                                                        James Parton III
     Fred Norton                                        Parton Sell
     Boies, Schiller & Flexner LLP                      750 Lindaro, Suite 140
     1999 Harrison St., Ste 900                         San Rafael, CA 94901
     Oakland, CA 94612                                  258-9700 Fax: 258-9739
     510-874-1000 Fax: 510-874-1460                      jparton@partonsell.com
     fnorton@bsfllp.com
                                                        Audrey Ng Roybal
     Eleanor M. Roman                                   The Law Office of Audrey Ng Roybal
     Lerman Law Partners LLP                            1817 Jonive Road
     802 B Street                                       Sebastapol, CA 95472
     San Rafael, CA 94901                               707-874-2358
     454-0455 Fax: 454-0450
     ellie@lermanlaw.com                                Nielsen, Merksamer, Parrinello, Mueller & Naylor
                                                        LLP
     Deborah Schweizer                                  2350 Kerner Bl. Ste 250
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     Sausalito, CA 94965
     332-4262 Fax: 331-5387                             For the following attorneys:
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     1999 Harrison St., Ste 900                         jeddy@nmgovlaw.com
     Oakland, CA 94612
     510-874-1000 Fax: 510-874-1460                     Marguerite Leoni
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     Legal Aid of Marin                                 jparrinello@nmgovlaw.com
     30 N San Pedro Rd, Ste 220
     San Rafael, CA 94903
     492-0230 Fax: 492-0947
     ssolomon@legalaidmarin.org

     Gregory W. Stepanicich
     Richards, Watson & Gershon
     44 Montgomery St., Suite 3800
     San Francisco, CA 94901
     421-8484 Fax: 421-8486
     gstepanicich@rwglaw.com

14
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SHARED OFFICE SPACE available for 1 atty.                                                draft/expedited transcripts, ASCII diskettes,
Courthouse Sq., 6th Flr. San Rafael. Includes private                                    condensed transcripts, interpreting/videography
office w/excellent view, work station area, shared                                       services. Complimentary conference room
                                                                                         available.
reception area, use of Conf. Rm., File & Storage Rm.
cmcinerney.rfblaw@pacbell.net.                                  Phone (415) 898-0401 • E-mail: jmacchello@verizon.net


OFFICE ASSISTANT/LEGAL SECRETARy for
Family Lawyer in Larkspur. See details in http://sfbay.
craigslist.org/nby/lgl/747904822.html (legal/paralegal
jobs).

OFFICE AVAILABLE downtown San Rafael.
Professional suite. Full service, conference room,
Westlaw, fax, phones. Overflow work available. call
459-3500.
                                                               MISSION STATEMENT OF THE MARIN
                                                                  COUNTY BAR ASSOCIATION


                                                                 To involve, encourage, and support
                                                                      bar association members,
   Deadline for submission of articles,                           to serve as a liaison to the Marin
    ads, inserts, and announcements                                        County courts,
       is the 15th of each month.                                and to educate the community and
                                                                  enhance access to legal services.
               Thank you.
                                                                                                                                          15
                                                                                   The Marin Lawyer


                                                             a vc                                     c l v rgv .
          Helping someone make a difference                                          The Foundation also accepts a wide
          while saving taxes is a winning combi-                                     variety of assets—another way to look
          nation. And it’s easy. By setting up a                                     great in the eyes of your clients.
          donor-advised fund at the Marin Com-
          munity Foundation, your clients can take                                   Think of us as your partner in philan-
          a charitable tax deduction for 2007 and                                    thropy. To learn more, call Aviva Shiff
          then decide later what organizations                                       Boedecker, director of gift planning, at
          and issues they want to support.                                           415.464.2516.




                                                                           We make giving easy, effective, and enduring.
                                                                                 www.marincf.org | 415.464.2500




                                                                                                                                 FIRST CLASS
Marin County Bar Association                                                                                                     U.S.POSTAGE
30 North San Pedro Road, Ste. 140                                                                                                    PAID
San Rafael, CA 94903                                                                                                              PERMIT #26
                                                                                                                                SAN RAFAEL CA
                       published by
             The Marin County Bar Association                                                                                   DATED MATERIAL
             415-499-1314 Fax 415-499-1614
                    www.marinbar.org
                  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.


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