Contra Costa Lawyer - Contra Costa County Bar Association

Contra Costa Lawyer
Volume 22, Number 8 • August 2009
The official publication of the
B A R A S S O C I A T I O N
Funding
Education
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Contra Costa Lawyer
Volume 22, Number 8 • August 2009
B A R A S S O C I A T I O N
contents
features
8 Letter (and Response) to the
Membership of the CCCBA
Larry E. Cook and Ronald P. Rives
10
Inequities in California's System
of funding public school districts
Did you know that the current economic crisis
impacts some school districts to a far greater degree
than others?
Paul Strange
16
Special Education
Are we truly taking money away from others or is
it more costly not to provide appropriate services?
Roberta S. Savage
18 Parents and attorneys
in the eye of the hurricane
A personal and unique perspective on the
implementation of the Individuals with
Disabilities Education Act.
Greg Rolan
departments
4 Inside
Audrey A. Smith
6 pRESIdENT'S mESSAGE
Larry E. Cook
14
Question Man How should we pay for public education
in an era of budget cuts?
22 ethics Corner
Carol M. Langford
24 Local civil jury verdicts
Matthew P. Guichard
26
Classifieds
inside
by Audrey A. Smith
2009 BOARD of DIRECTORS
Larry Cook President
Ron Mullin President-Elect
Kathy Schofield Secretary
Audrey Gee Treasurer
Robin Pearson Ex Officio
Leigh Johnson
Christopher Bowen
Kristen Thall Peters
Oliver Bray
Ron Rives
Mike Brewer
Dana Santos
Jay Chafetz
Stephen Steinberg
Virginia George
Candice Stoddard
Peter Hass
Welcome to the education edition of the Contra Costa Lawyer. Issues related to providing
and paying for a quality public education arise in a variety of legal practice areas. In the
current economic environment, tensions have increased between parties vying for shrinking resources. So, we thought we would bring some important issues to the forefront.
CCCBA EXECUTIVE DIRECTOR
Roberta Savage is a solo practitioner who represents a significant number of students
seeking special education services in Contra Costa County. In her article, she addresses
the myth that students in special education programs are getting an unequal share of
limited resources and taking money away from other school programs.
Lisa Reep: 925.288-2555 • [email protected]
CCCBA main office: 925.686-6900 • www.cccba.org
Jennifer Comages
Membership Coordinator
Maria Navarrete
LRIS Coordinator
Emily Day
Systems Administrator and
Fee Arbitration Coordinator
Barbara Tillson
Moderate Means Program
Coordinator
Michele Vasta
Section Liaison / Education
& Programs Coordinator
Manny Gutierrez
Administrative Assistant
and Legal Interviewer
Contra Costa Lawyer
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
925.284-0480
Mark Ericsson
925.930-6000
Matthew P. Guichard
Local Civil Jury Verdicts
925.459-8440
Patricia Kelly
925.258-9300
Nicole Mills
925.351-3171
Craig Nevin
925.930-6016
David Pearson
925.287-0051
Erika Portillo
925.459-8440
Andy Ross
925.296-6000
Kathy Schofield
925.253-7890
Audrey Smith, JFK Liaison
925.969-3561
Harvey Sohnen
925.258-9300
Marlene Weinstein
925.942-5100
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 respective 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.
4
The current economic crisis impacts some school districts to a far greater degree than
it impacts others. As the Vice-President of the Mt. Diablo Unified School District Board
of Trustees, attorney Paul Strange tells us firsthand about the Inequities in California’s
System of Funding Public School Districts.
Greg Rolan gives us a unique perspective on the implementation of the Individuals
with Disabilities Education Act (IDEA). As the General Counsel for the Mt. Diablo
Unified School District, and the father of two children receiving special education
services, he explains that the federal government provides grossly insufficient aid to
public school districts to comply with mandates of the IDEA. He also provides information regarding the legal rights of children/parents and the special education service
options that are available.
As always, you will read some varied responses to this month’s Question Man (How
should we pay for public education in an era of budget cuts?).
Turning to some brighter news on the education front, John F. Kennedy University,
School of Law, has expanded its clinical programs. JFKU, School of Law, now operates
three legal clinics: The Criminal Defender Clinic (Berkeley and San Francisco, Professor
Stephanie Andraktas, Director); The Housing Advocacy Clinic (Berkeley, Professor Ora
Prochovnick, Director), and the Elder Law Clinic (Pleasant Hill, Professor Virginia
George, Director). Law students work under the supervision of law faculty, providing
much needed services to low-income populations from whom legal representation is
often unavailable. You may contact the clinics based in Berkeley at 510.647-2063, and
the Pleasant Hill Elder Law Clinic at 925.969-3341.
The ABA recently approved JFKU’s Paralegal Certificate and Bachelor of Arts Degree
in Legal Studies. JFKU now holds the distinction of being the only school in Northern
California to offer this BA program.
JFKU, committed to offering continuing education to paralegals, is hosting the Legal
Studies Program in conjunction with the Mt. Diablo Legal Professionals Association.
On October 10, they will offer a day of continuing education classes specially designed
for local, practicing paralegals. This event will provide paralegals the chance to complete
all of the continuing educational requirements outlined in Bus. & Prof. Code section
6450 in just one day. Contact Marci Trevino at [email protected] or 925.969-3563
for more information.
We hope you enjoy this special issue. u
— Professor Audrey A. Smith, John F. Kennedy University, School of Law, is the Director of the
Legal Research and Writing Program.
August 2009
The Contra Costa County Bar Association is pleased to announce the fourth never annual
Trivia Bowl for Access to Justice
in support of The BAR FUND
Friday, October 2, 2009 • 6:00 – 9:30pm • Blackhawk Museum
$75 per person - $750 reserved table for 10
$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)
Master of Ceremonies Tom Beatty • Judge Hon. Norm Spellberg (ret.) • Game Show Host Brian Bonney
Maserati Sponsors
JAMS • Miller Starr Regalia • Nevin Ramos & Steele
Ferrari Sponsors
Carroll, 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, contact Lisa Reep at 925.288-2555 or [email protected].
Contra Costa Lawyer
5
president’s message
by Larry E. Cook
It hardly seems possible — we have moved
past the year’s midpoint. I want to take this
opportunity to update everyone on our
progress toward the completion of some
of this year’s major projects and acknowledge some very special members who have
been working so hard to get things done.
• First, our website redesign and development committee, headed up by CCCBA
Board member Steve Steinberg, is preparing to make its recommendations to the
full Board of Directors as to the awarding
of the contract for the new site. Steve and
the members of the committee are to be
commended for their tireless efforts. Taking
time out from their busy practices to
determine our web needs, create a proposal
and then spend hours and weeks reviewing
bid proposals is a staggering task. If all
continues to go well, we should be in a
position to roll out a demonstration of the
new site at this year’s MCLE Spectacular
on November 20, with completion and
launching of the site by year’s end. Key
features of the site will include an updated
calendaring system. Members will have
the ability to register and pay for all programs online, and allow everyone to update
and track MCLE credits. Bringing our
website into the modern era is a demanding project in terms of time and financial
commitment. Investment in this effort
will bring valuable returns to the membership and the public for years to come.
6
• On June 11, Carroll, Burdick and
McDonough generously hosted the seasonal Get to Know Your Judges reception at
their Walnut Creek office. Partners Jack
Friedman, Larry Panek and Wally Smith
provided thorough and witty introductions to Judges Craddick, Cram and
Kennedy. Members appreciate the chance
to meet judges in a social setting over hors
d’oeuvres and drinks. These gatherings
are a nice way to get to know each other
on a personal level outside of the courthouse, where lawyers and judges can
dispense with formalities and begin to
know and relate to each other as people.
Many thanks to Carroll, Burdick and
McDonough for an outstanding event.
• As promised, we brought back our
Law Day for Lawyers program on June 5;
an all-day seminar at JFK University,
focusing on the business of law practice
and how to develop strategies for sur­
viving in a down economy. Thanks go out
to CCCBA member Jay Chafetz for setting
up the program, developing the seminar
topics and arranging excellent speakers
to fill the day. We especially appreciate
seminar presenters and bar members Rick
Norris, Dick Frankel, David Pearson, as
well as banking executive Rick Wise for
donating their time and talent to make
the program a success. Also, thanks to
JFK University for providing wonderful
facilities for the event.
• We continue to work in partnership
with the court to achieve efficiencies and
to maintain quality control within the
court-sponsored ADR Program. The ADR
committee — chaired by Andy Schwartz
and made up of attorneys, John Warnlof,
Lynne Yerkes, Tom Beatty, Peter Mankin
and Judge Judy Craddick — has taken
on the task of hammering out and drafting proposed changes to local court rules
regarding qualifications and MCLE
requirements for attorney participation
in court-sponsored mediation programs.
Over the past year or so, a rift was
created between the court’s ADR Program
and many participating bar members who
were faced with being dropped from the
program for failing to complete 40 hours
of mediator training. The concern was that
otherwise highly qualified and experienced
attorneys would not volunteer their time
to act as mediators if a 40-hour training
program was mandated by local rules. On
the other hand, it is widely accepted that
in today’s complex legal environment,
effective mediators need specialized train­
ing on an ongoing basis in the areas of
mediation strategies and ethics. The ADR
committee has worked very hard to propose
rule changes that will achieve a proper
balance between legitimate competing
interests. Under the proposed changes,
attorneys will be able to qualify by completing 40 hours of formal training and/or
by demonstrating their qualifications in
August 2009
other ways, such as providing evidence of
trial experience, mediation experience or
other training to demonstrate their abilities.
Recognizing that “one size does not fit all”
when it comes to experience or effectiveness, the ADR committee hopes to strike
the proper balance. Proposed rule changes
should be out for comment in the very near
future. Many thanks to the committee.
• On the subject of upcoming events,
please make plans to attend the CCCBA
Trivial Bowl on Friday, October 2. The
gala event will take place at the Behring
Auto Museum in Blackhawk. The theme
is everything and anything to do with
automobiles. The opportunities for themerelated costumes are unlimited. Whether
you plan to sponsor a Trivia Bowl team
or just share in the excitement of the event,
please come and have a great time. This
is our BAR FUND event for the year.
Let’s make it a success.
• On Friday, November 20, we will hold
our annual MCLE Spectacular in Walnut
Creek. Mark your calendar for this great
MCLE opportunity. We are lining up a
stellar group of topics and presenters for
the day, as well as a wonderful slate of
speakers for the Breakfast Kickoff and
Keynote Address. As always, contact the
Executive Director, Lisa Reep (925.2882525 or [email protected]) for details.
Well, these are some of the highlights of
our Bar activities and issues. I am very
pleased to report that association membership is at an all-time high and section
activity across the board is strong.
I welcome your comments and con­
cerns on all Bar-related matters. If you
need more information on anything, please
call me directly. My goal is to stay in touch
and be responsive to all members. Have
a great summer. u
— Larry Cook is a partner with Casper
Meadows Schwartz & Cook in Walnut Creek.
The firm represents plaintiffs in personal injury
cases.
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7
July 14, 2009
LETTER TO THE MEMBERSHIP OF THE
CONTRA COSTA COUNTY BAR ASSOCIATION
Dear CCCBA Members:
At its July 1, 2009 Board of Directors meeting, the CCCBA Board of Directors considered the issue of
whether or not the CCCBA should join with other bar associations and legal organizations who have opted
not to patronize the Manchester Hyatt Hotel in San Diego where the State Bar’s annual meeting will be
held in August. The State Bar of California entered into a multi-year contract with the Manchester Hyatt
Hotel in San Diego, the venue for the annual meeting in 2009 and 2011. When it was revealed that the
ownership of the Manchester Hyatt had contributed a substantial amount of money to the Yes on 8 Campaign,
the State Bar considered its options with regard to moving the meeting to another venue. Citing its fiduciary
duties and the possibility of losing upwards of $500,000 in liquidated damages, should the contract with the
Manchester Hyatt not be honored, the State Bar announced that it would not move the annual meeting.
Several voluntary bar associations and other organizations across the state have chosen to not to
patronize the venue. Those groups include the Conference of Delegates of California Bar Associations,
the Bar Association of San Francisco, the Alameda County Bar Association, the Santa Clara County Bar
Association, the Beverly Hills Bar Association, the Los Angeles County Bar Association, the Orange County
Bar Association, and others.
After consideration and discussion of this matter, the CCCBA Board voted to join with the abovementioned organizations and not patronize the State Bar annual meetings and activities at the Manchester
Hyatt. Therefore, no one will be representing the CCCBA this year at any functions at the Manchester Hyatt
Hotel at the State Bar’s annual meeting. Naturally, individual members of the CCCBA, including members of
the Board of Directors, have the option of attending or not attending any meetings as they see fit. Our CCCBA
delegation will attend and participate in the Conference of Delegates, which has relocated its meeting to
the Hilton Hotel in San Diego.
8
LARRY E. COOK
President
Contra Costa County Bar Association
August 2009
RESPONSE
On July 1, 2009 the CCCBA Board of Directors considered a letter from a coalition of union representatives
and opponents of Proposition 8 to support a boycott of the Manchester Hyatt.
The boycott was called because Doug Manchester, the hotel owner, had made a sizable campaign
contribution to Proposition 8. Mr. Manchester is not charged with a crime — nor with any discrimination
based on sexual orientation. The sole basis of the boycott is that he made a campaign contribution in support
of a particular political viewpoint that he holds — a viewpoint apparently shared with the majority of voters
in that election.
Many members of the Board believe that the issue of gay marriage carries certain constitutional and
equal protection aspects that raise it above a merely political issue and make it appropriate for the Bar
Association to take a position. The Board discussion centered around Prop 8 instead of the issue of whether
it is appropriate for a Bar Association to join in economic sanctions on a private citizen for holding a
particular political viewpoint.
The Board majority has graciously permitted me to express the dissent of a substantial minority of the
Board concerning this action.
The CCCBA is an association of attorneys that represents the view of its membership, advocates in areas
of concern to attorneys and holds various government contracts to provide certain legal services. To join
in economic sanctions against a private citizen for making a legal campaign contribution is nothing less than
discrimination based purely on that citizen’s political or social viewpoint.
The CCCBA should support freedom of speech and should condemn those who would limit it through
coercive tactics. The Bar should encourage the free exchange of ideas, the right to free expression and the
right to vote one’s conscience without fear of retaliation – even where the Board disagrees with that point
of view. As I stated during the discussion, my opposition to this action would be just as strong if the basis
of the boycott was that Mr. Manchester had opposed Prop 8.
I hope that the Board will consider a change in the by-laws that will prevent the Board from expressing
a position on any issue by means of singling out a private citizen for economic sanctions. I trust that the
membership will make its feelings known on this issue.
In conclusion, the membership should rest assured that all points of view on this issue were expressed
and courteously considered. It is a privilege to serve on this Board with the officers and directors of the
CCCBA.
Contra Costa Lawyer
Ronald P. Rives
Board Director
Contra Costa County Bar Association
9
Inequities in California’s System of
Funding Public School Districts
by Paul Strange
California’s K-12 education funding system has resulted from a hodgepodge of court cases, legislative efforts and ballot
initiatives. The news is rife with examples of the negative impact of California’s current economic crisis on our schools.
But the current economic crisis impacts some school districts to a far greater degree than it impacts others. This disparity
results, in large part, from the fact that some districts are being sheltered from the funding cuts while others are not; and
from the fact that many school districts have far less funding to begin with when compared to other districts. n The current
funding system in California leaves much to be desired. Probably the greatest shortfall of the current system is the built-in
inequity across school districts. This inequity is not only fundamentally unfair — creating a system of “haves” and “havenots” — but in many ways the inequity becomes the main obstacle to statewide reform. Those parents who can afford to
live in school districts with higher funding are also among the more politically powerful in the state. There has been little
incentive for those with political power to push for change when it comes to education funding. n Nowhere is the inequity
in funding more prevalent than in the Bay Area. Districts at both ends of the spectrum can be found in the Bay Area,
and severe variances can even occur within county borders. n An exhaustive review of the history of school funding is
not the purpose of this article, but a short primer on the history is helpful to understanding the overall equity issue.
Prior to 1972, California school boards
had the ability to control their revenue.
By adjusting the local property tax rate,
a simple majority of any given school
board could raise or lower the revenue in
the district. The result of this system was
that there were great disparities in the
funding of school districts between rich
communities and poor communities. In
1971, the California Supreme Court ruled
that the disparity in funding for schools
was not allowable. 1 The California
Supreme Court required that the legislature create a solution to the problem that
10
would result in more equal funding for
schools — funds could not vary more than
$100 per student between districts.
The legislature’s response was to take
away all taxing authority from school
districts and shift the funding to the
state level. The state’s plan was to then
slowly begin equalizing funding to the
school districts. The state did so by
setting each district’s “revenue limit”
per pupil at approximately the amount
the district had spent the year before,
with the plan to make adjustments in
future years.
California’s plan to equalize funding to
school districts across the state was largely
foiled by the passage of Prop 13 in 1978.
Prop 13 did to all other local government
agencies what the legislature had done to
school districts — it took away local taxing authority. Prop 13 also eliminated 57%
of the property tax revenue the state
collected, created the two-thirds requirement for parcel taxes and equalized
everyone’s tax rate, but it interrupted the
equalization process. In addition, after
Prop 13, any school district that generated
local revenue in excess of the “revenue
August 2009
limit” was allowed to keep the money.
These districts were originally called “basic
aid” districts since the state still provided
a little funding (about $120 per student).
Now they are called “excess revenue”
districts, as their revenue exceeds the
revenue limit amount.
There are basically two categories of
inequity in school funding: 1) inequities
between revenue-limit districts based on
varying revenue limits and parcel taxes; and
2) inequities between revenue-limit districts
and those that are “excess revenue.”
It is a bit of a tangent, but it is important to understand how some school
districts can collect local revenue that
exceeds their revenue limit. There are two
main factors that allow school districts to
glean excess revenue from their community. First, in these communities, assessed
property values are typically on the high
end. The higher the assessed value of the
property, the more property tax that is
collected. Second, in these areas, a larger
percentage of tax revenue is dedicated to
local schools. In other words, a larger
portion of a larger pie results in more local
revenue for schools, revenue in excess of
what the district would otherwise get in
its “revenue limit.”
Before reaching the hard numbers comparing districts, it is important to consider
the basis upon which districts should be
compared. For purposes of this article, the
unrestricted revenue of the districts will be
compared on a per-pupil basis. In addition,
Mt. Diablo will be the starting point for
purposes of comparison.
There are two major categories of
funding for the district: restricted and
unrestricted. Generally speaking, restricted
revenue is given to a district for a specified
purpose. Typically, this specified purpose
recognizes that the district bears an additional burden beyond educating a typical
student. For example, it is well known that
it is more expensive to educate English
language learners and low-income students.
They simply need more support. Accordingly, a district may be given money to
support these needs, while another school
district, which does not have those needs,
does not get the money. A simple examContra Costa Lawyer
ple of this (although one that does not hit
the general fund) is free and reduced lunch.
Mt. Diablo provides free and/or reduced
lunch to 33.4% of students, while San
Ramon only serves 2.0% of its population.
Mt. Diablo has far more revenue than San
Ramon that is dedicated to providing free
and reduced lunch. These extra funds,
however, should not be considered when
comparing district revenues, as they
simply represent revenue that is expended
on an offsetting obligation.2 Accordingly,
restricted funds do not inform the analysis
of the comparison of districts for purposes
of overall equity.
In addition, it simply makes sense to
compare the revenue with which the
district can actually make decisions. If a
district has restricted money that is
dedicated to a particular purpose, it cannot be used to save other programs (like
class size reduction, music or sports) or to
save positions outside of that specific
purpose or to raise the sub-competitive
salaries of employees.
With that basis in mind, a review of
the actual numbers reveals an unequal
distribution of unrestricted funds per
pupil across Contra Costa County and
throughout the state. Chart 1 (below)
shows the amount of unrestricted funding
per pupil for all districts in Contra Costa
and Alameda (these amounts include
parcel taxes, whether or not the district
lists the parcel tax in its unrestricted or
restricted revenue as the board actually
controls what is put on the ballot).3 Mt.
Diablo Unified School District is $925
per student below the average. This represents a shortfall of about $32 million
below the average (when multiplied by
Mt. Diablo’s Average Daily Attendance
“ADA” or number of pupils).
Chart 2 (see the following page) shows
the comparative revenue that other districts have compared to Mt. Diablo. On
this chart, Mt. Diablo is shown as $0. The
amount shown for each district represents
their per-pupil amount multiplied by Mt.
Diablo’s ADA.
In fact, the Mt. Diablo Unified School
District is very close to the bottom. Some
districts have as much as $140 million
(comparatively) more per year than Mt.
Diablo.4
Chart 1 compares districts in Alameda
and Contra Costa with Mt. Diablo. There
are, however, greater disparities between
Mt. Diablo and districts in other Bay Area
counties. For example, Palo Alto Unified u
Chart 1
$11,000
$10,500
$10,000
$9,500
$9,000
$8,500
Average
$7,156
Difference
$925
Mt. Diablo
$6,231
$8,000
$7,500
$7,000
$6,500
$6,000
11
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Chart 2
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has $11,773 in unrestricted revenue per
ADA or a comparative $188 million more
per year than Mt. Diablo. Mountain View
— Los Altos has $10,546 in unrestricted
revenue per ADA or a comparative $169
million more per year than Mt. Diablo.
Tamalpais Union High has $13,092 in
unrestricted revenue per ADA or a comparative $256 million more per year than
Mt. Diablo. Reed Union Elementary has
$11,358 in unrestricted revenue per ADA
or a comparative $197 million more per
year than Mt. Diablo.
The disparities are enormous and
unfair. School districts are not treated
equally when it comes to funding in the
State of California and the outcome is that
some districts simply do not have a fair
opportunity to provide needed resources
to students. These inequities result in
unfair distribution of educational services
provided to students, a lack of competitive
compensation for school employees, and
significant turnover among the staff in
the lower funded districts.
During challenging economic times like
the present, the California school districts
that are funded by “excess revenue”
resources do not suffer the same negative
economic impact as the state-funded
districts. In fact, some of the “excess
revenue” districts have seen little or no
reduction in revenue while others face
revenue reductions of up to 20%.
The inequities in funding school districts
in California are obvious. The solutions to
address the inequities are not obvious nor
are they politically popular. But solutions
must be found and implemented. u
— Paul Strange is the founder of The Strange
Law P.C., with offices in Walnut Creek. He
practices business litigation and family law,
and represents school districts. He also serves
as the Vice-President of the Mount Diablo
Unified School District Board of Trustees.
1
See Serrano v. Priest, 5 Cal.3d 584 (1971) (Serrano I);
Serrano v. Priest, 18 Cal.3d 728 (1976) (Serrano II);
Serrano v. Priest, 20 Cal.3d 25 (1977) (Serrano III).
2
In fact, in many circumstances, the additional state
-restricted dollars do not cover the actual cost of the
additional burden, which means that the district must
make up the difference from unrestricted funds.
3
All data is publicly available at http://www.ed-data.
k12.ca.us/. Specifically, the information is pulled from
each district’s “Revenue Detail” page. Mt. Diablo’s
information can be found at http://www.ed-data.k12.
ca.us/finance/GeneralFundRevenueDetail.asp?District
Name=Mt.%20Diablo%20Unified&districttype=
Unified&commonAdmin=False&DistrictCode=
61754&FYR=2007-08.
4
Importantly, none of the districts in Contra Costa or
Alameda are excess revenue. These differences reflect
the disparity among state revenue limit schools.
August 2009
Annual Call for Board of Directors’ Nominations!
Do you want to be a leader within our legal community, but are unsure of what it takes to be a Director on the Contra Costa County Bar Association Board?
The Board is looking for candidates who agree to meet the following expectations:
To possess (or acquire) a basic understanding of the Bar Association and its activities n To commit to the mission and values of the Association
To represent the Association in a manner consistent with Board decisions n To prepare for and regularly attend monthly Board meetings
To attend additional meetings and bar-sponsored events as needed n To participate on at least one committee or taskforce n To participate in
the annual Board Orientation and Training program
Directors are selected for their experiences and personal attributes. Active participation on a CCCBA committee or section leadership is a plus.
Nominations Process: To be eligible, nominees must be active attorney members of the Association. For purposes of the Association’s annual election,
nominations for Directors shall be made by the Directors’ Nominating Committee at the regular October Board meeting, for approval by the Board.
The Board may accept or reject any or all of the Committee’s nominations. The Board’s decision on the candidates for election as Directors may be
supplemented by additional nominations made in writing by any member and seconded by four members of the Association, with the concurrence of
the nominee, by September 30.
If you are interested in serving on the 2010 Board of Directors (or to fill an existing vacancy), please submit your written nomination as outlined above to:
Lisa Reep, Executive Director
704 Main Street
Martinez, CA 94553
(email: [email protected])
Contra Costa Lawyer
13
Question man
How should we pay for public
education in an era of budget cuts?
Every pay increase for a public
official should be accompanied
by a mandatory budget increase
for the educational system. It
is well documented that a good
education is the hallmark of
whether that person succeeds in life or
falls through the cracks. Our politicians
should get their priorities straight.
Magany Abbass
Law Offices of Magany Abbass
1) Repeal Prop. 13, and 2) Raise taxes.
James N. Wood
Professional Fiduciary
California appears to suffer from
a desire to have a top educational
system, combined with an
unwillingness to pay for it. We
have lived under the delusion
that we can get great education
from lottery money. We now have one of
the worst funded educational systems in
the nation. It is time for us to acknowledge
that education for all provides great benefits to all, and is worth paying for. Repeal
Proposition 13, and establish an equitable
means of taxing us to enrich ourselves as
a society through quality education of our
children.
David W. Ginn
Law Offices of David W. Ginn
We have to stop using public
schools to solve all the problems
of the world we adults can’t
handle. Basic programs only.
Then amend Prop 13 to exclude
commercial real estate.
Tom Cain
Law Office of Thomas W. Cain
14
How should we pay for public
education in an era of budget
cuts? We should pay for education liberally and well, just like
when I grew up in California,
always the #1 state in the
Union in terms of educating its children.
We could start by firing the entire California Legislature for its intransigence and
failure to do the job we hired them to do,
and we could get smart by not rehiring
the same people — over and over —
letting them shuffle through California
government like walking zombies, failing
to do the job. Or is that harsh?
We should tax people with the
means to pay higher taxes. There
is already a move in Congress
to raise the marginal tax rates
for those couples earning
$250,000+. If we Californians
do not tax ourselves, then the UC system
and the blessings it brings with it will be
harmed. The children of all California
citizens will be victims of a citizenry that
is blind to 21st century realities that require
an educated population.
David A. Brown
A 25-cent per gallon tax on gasoline
(not diesel — the trucking industry
is damn near dead already) would
do the trick and reduce traffic and
greenhouse gas emissions all with
one quick measure.
Law Office of David A Brown,
Out of available resources, the
education of our children and
the care of our disabled children and adults should come
at the top of the list. These
expenses should take priority
at the 100% level over all other expenses.
This, of course, is not the view shared by
legislators and governors.
Wayne V.R. Smith
Solo, Martinez
The state legislature should be prevented
from balancing the state budget by either
borrowing lottery funds or substituting
general funds with lottery funds.
Joseph M. Nykodym
Ryan & Lifter
Repeal Prop 13.
Helen Peters
Attorney-Mediator
Howard R. Melamed
Solo, Walnut Creek
John E. Manoogian
Law Offices of John E. Manoogian
First, do away with the Federal and State
Departments of Education. Billions to
bureaucrats and really very little to schools.
Then with that money, use it to promote
competition amongst schools and teachers
— that is, pay for worth. Voucher programs
for all students from money used for the
Departments of Education, and parents
have the right to choose the school best
for their child — whether it be public
or private, religious or nonreligious. It probably won’t ever
happen because there are so
many beholden to unions and
don’t believe in choice except
in one area.
Dan G. Ryan, Esq.
Law Office of Dan G. Ryan
August 2009
The education of our youth
through post-graduate degree
programs is the most important
function our government has. It
should be funded as needed
rather than when the legislature
says there is money to pay for it. California
doesn’t have a budget crisis; it has a failure
of governance both in the executive and
legislative branches. The future prosperity
and viability of our state depends on a
highly educated citizenry. We need to
spend what it costs and the entire income
earning segment of the state should each
pay their fair share. Right now, the cor­
porate sector and the highest income
earners are not paying their fair share. We
need to fix the taxing process by removing
the two-thirds requirement for a budget
and for raising taxes, and we need to give
the legislature oversight authority for the
executive branch activities.
Gerald T. Richards
Contra Costa Senior Legal Services
To paraphrase the words of
Groucho: This institution
cannot afford both the edu­
cation and the football team.
The education’s got to go.”
Merritt Weisinger
Walnut Creek Family Law Center
Legalize marijuana and tax every sale!
Mitch Stevens
Law Office of Mitchell A. Stevens
I have had the pleasure of
watching my wife explain that
her success is the result of a
free public education. My
parents lectured me that my
most important investment
will be my children’s education. Government needs to put a higher priority on
funding education to improve the future
prospects of our economic stability.
A. G. Ashe
Law Office of Anthony Guy Ashe
Maybe we could get the teachers to work for free, and the
textbook companies to stop
charging for books; and
PG&E to provide electricity
for free. Or, maybe we could
— raise taxes! There is no free lunch, and
no free education.
Joan M. Wetherell
Law Office of Joan M. Wetherell
What are we spending per pupil in the
public schools, $12,000? What if we just
give parents $5,000 if they will take their
child out of public school and enroll them
in the private school of their choice? We
would save $7,000 times, let’s say, half of
the students in California. That’s over a
quarter of the education budget, which
is half of the entire budget. Presto, you’ve
saved about one-eighth of
the state budget. Would that
balance things, or would we
still have to cut welfare?
Kurtiss Jacobs
Solo, Concord
Public education rankings in California
have fallen to disastrously low levels over
the past 30 years. California used to rank
near the top of all states. It’s now ranked
near the bottom (50th of 51, including
D.C.) in terms of staffing per 1,000 pupils,
and 49th in students enrolled per teacher.
A paradigm shift is needed to force our
elected leaders to get some spine around
the way in which education in California is
funded. Many of the problems can be
traced directly to the tax inequities caused
by Prop. 13. Visit www.closetheloophole.
com to find a grass roots effort to change
the way in which commercial property is
assessed and taxed. Repeal of Prop. 13 (at
least in part), will bring back some tax
equality and allow public education to get
the funding it needs, bringing California
back near the top of all the states in what
we provide to our K-12 students.
Patrick M. Callahan
Burnham Brown
Contra Costa Lawyer
We (as the State of California)
must first allocate or decide what
amount of funding should go to
education for K-12 (e.g., $x
billion) on a state-wide basis.
Such determination would be
made annually de novo, not later than
February 1 (i.e., February 1, 2010 for the
school year that begins August 2010).
Such determination would require a twothirds majority of the legislature. Then,
we divide the designated $x billion by the
number of children in the K-12 system.
We then grant a voucher for each child
in the dollar sum determined in the
immediately previous sentence.
Each child may choose any qualified
public or private school using the voucher
against tuition. Yes, each local public school
system would establish a tuition schedule.
If the school decides to charge more than
the voucher, the parents can elect to make
up the difference. Public schools would
have that same option (to charge more
than the voucher will pay). If all schools
near the child’s home charge materially
more than the voucher amount, then the
parent is free to home school the child.
Then, the market for education (both
providers and consumer parents) will take
care of quality control. It is universally
better for individuals at the local or neighborhood level to make millions of independent purchasing choices than it is for
a small number of politicians and bureaucrats to wrest decision making from the
people. I am confident that this system
would work great, merely by the fact that
the politicians, bureaucrats, and union
leaders would hoot the loudest against it.
G. Scott Haislet
Law Offices of G. Scott Haislet
Innovation, such as appealing
to corporations for sponsorships or selling naming rights
to the gym, courts, fields, even
the library.
Marc Bouret
The Bouret Mediation & ADR Firm
15
Special Education
by Roberta S. Savage
Are we truly taking
money away from others
or is it more costly
not to provide
appropriate services?
During these difficult
economic times, the special education
students are easy targets for blame. They
take money away from programs for
GATE students; they take money away
from arts programs; they take money
away from athletic departments . . . or do
they? It is just as easy to say that school
districts underserve kids to save their
budget and that special needs students get
warehoused into special day classes in order
to maintain an arts program, the soccer
team or an additional GATE class. The
unfortunate long-term cost of improperly
serving special education students is that
our state and federal governments will be
funding their care, benefits and housing
for far more years than the students are in
public schools. I think our state, federal
and local budgets are better served by
properly serving special education students
in the K-12 system because that gives them
the greatest chance at being self-sufficient
and tax-paying citizens after graduation.
Many lawyers get exposed to special
edu­cation issues throughout their careers.
You may have a child with a disability;
someone in your immediate family may
have a child with a disability; your friend
or neighbor may have a child with a disability; you may represent children with
disabilities in juvenile court; you may have
to counsel parents in a divorce about the
special education needs of their children;
or you may represent them against local
public school districts and county offices
of education in program disputes. No
16
matter how you are exposed to this group
of unique students, you will better understand the plight of their families by
understanding the maze that they must
navigate for up to 19 years.
Special education services are available
to students who qualify from ages 3-22.
Prior to age 3, students may receive services provided by their regional center
(Regional Center of the East Bay in the
Contra Costa area). Services provided
either before or after age 3 may include
speech and language therapy, occupational
therapy, behavior consultation services,
individual aide/tutor services, deaf/hard
of hearing instruction, adaptive physical
education or academic remediation.
Eligibility
Students who are diagnosed with a disability, which has an adverse effect on their
education, and that meet the California
Education Code eligibility criteria become
eligible for special education. This can be
your daughter who is deaf, your sister’s
son who is diagnosed with bi-polar dis­
order or the little girl in a wheelchair at
your child’s school. Those same students
may also not qualify for special education
services if their disability does not adversely
affect their academic performance.
Although the local school districts are
specifically responsible (pursuant to both
state and federal law) to provide special
education services, they are also accountable to the public to provide educational
services to the masses. Due to the large
volume of services that public schools
must provide, it’s easy to turn to the
special education students and figure out
ways to cut their services. The single most
effective way to do this is to either find
that a particular student is not eligible for
special education services or is no longer
eligible for special education services. The
need to manage their budget creates a
justification for finding fewer students
eligible. The conflict created by the needs
of a school district to balance their budget
and the needs of the students with special
education needs is pervasive throughout
the IEP process with eligibility issues being
just one example.
Eligible special education students are
entitled to a free, appropriate public
education [FAPE]. The definition of that
term, in theory, varies for each eligible
student because it is built upon each child’s
unique educational needs, which are supposed to be comprehensively assessed by
their local school district. Assessments are
another area where conflicts arise.
Assessments
The law requires that school districts assess
students in all areas of suspected disability.
A common way to limit the amount of
testing conducted is to assert that the
range of skills in, say social skills or reading, vary so greatly in fourth grade that
there was no indication that Johnny needed
to have those areas assessed because his
skills appear to be in the normal range.
How could that possibly be true if Johnny
August 2009
is the only student in the fourth grade who:
sits alone at recess; is never picked to participate in groups by his peers; is incapable
of participating in group projects, so his
team does his work for him; and has the
reading skills of a first grader? Is that
really the norm or is that merely a way
to avoid providing Johnny with services
during fourth grade because the school is
already impacted?
How do Johnny’s parents know
whether this is the norm or not? They
hire experts like we all do. These expert
assessors help them understand whether
Johnny’s profile is really in the norm or
whether a comprehensive assessment of
his needs was not conducted. Parents then
take the assessment to the school. The
school either acknowledges that the expert
has accurately assessed the child’s needs
or explains in detail the limitations of the
expert’s assessment, which often starts
with claiming that the expert is not an
educator and thus does not understand
when there is sufficient information to
suspect a disability.
The family has spent a few thousand
dollars obtaining an assessment of their
child. In the worst case, the school district
has now had three to seven staff — including teachers, administrators and assessors
— participate in two multi-hour meetings
merely to avoid assessing Johnny in the
areas of reading and social skills. The
school district has now spent an unknown
amount of money, just to avoid assessing
this student. The real question we should
be asking is, could that money have been
better spent assessing Johnny and pro­
viding him with services? Nine times out
of ten it would have been better spent and
our society as a whole will save money if
we teach Johnny to read and have appropriate social skills in the fourth grade.
Services and Placements
The final portions of the IEP are lumped
together here: services and placement.
This is often the most contested part of
the process and, not surprisingly, the most
challenging and frustrating for parents.
Local school districts are required to offer
a free, appropriate public education, which
as discussed above, is supposed to be an
individual determination of each student’s
educational needs. How then are there
standard recommendations for services
by a school district?
Why is it acceptable to say that your
child gets speech therapy services two
sessions per week for 30 minutes, when
the family’s expert says that for educational purposes, the child needs three
hours per week of service? Could it be
that the speech therapist only has room
for two times per week 30 minutes on his
caseload, or that he is only on your child’s
school site two days per week? We rarely
accept a similar answer from our doctor:
“Sorry Suzy, I am only here every three
weeks, so your chemotherapy will occur
every three weeks, not weekly as your
other doctor recommends.” So why is it
expected that parents accept that similar
type of statement from the public school?
In the cancer example, Suzy will not
Julie Schumer
Certified Appellate Specialist
Certified by the State Bar of California Board of Legal Specialization
Motions, Appeals & Writs
30 years experience
925.254.3650
[email protected] • www.bayareaappellatelawyer.com
Contra Costa Lawyer
benefit from chemotherapy once every
three weeks, or it may take her exponentially longer to be cancer free. Most
people will not accept the costs associated
with that, but elongating the time that a
child learns to properly communicate with
his or her peers can wait? That is also a
cost we should not accept.
Conclusion
Special education students and their parents are often accused of being litigious,
encroaching on the general fund or just
too expensive for our public schools.
Although it may appear that way in the
short-term, the appropriate services at a
young age will have a far greater long-term
impact on our society as a whole. We may
have one less adult to support in a group
home or in jail, which not only translates
to less money paid out by the county, state
and federal governments, but that same
person may obtain meaningful employment and pay taxes to those same agencies.
Our community should support the appropriate provision of services to all students
that, in the K-12 years, may seem greater
for special education students, but in the
long-term is better for us all. u
— Roberta Savage is a solo practitioner in
Davis and represents a significant number of
special education students in Contra Costa
County. She is the Co-Chair of CAPCA
[California Association of Parent-Child
Advocacy]. She graduated from UC Davis
School of Law in 1999 and has been practicing
special education law since then.
—
Wanted —
Conservatorships
think
Matt Toth
as in
Pedder, Hesseltine,
Walker & Toth, LLP
oldest partnership in Contra Costa County
(52 years)
p 925.283-6816 • f 925.283-3683
3445 Golden Gate Way, P.O. Box 479
Lafayette, CA 94549-0479
AV Martindale-Hubbell
17
Parents and Attorneys
in the
Eye of the Hurricane
by Greg Rolen
The Individuals with Disabilities Education Act (IDEA) is a federal statutory scheme governing special
education law. The quintessential unfunded mandate, the IDEA requires school districts to provide
students with disabilities a “fair and appropriate public education.” The federal government provides
grossly insufficient aid to public school districts to comply with this mandate. The federal government
also places the burden on the state and local authorities to provide an administrative procedure to resolve
differences between the school district and those seeking the special education services. Although
altruistic in its intent, and undoubtedly necessary to assist traditionally underserved students, the statutory
scheme has evolved into a confluence of regulations that can propel litigation and create antipathy among
the participants. Consequently, special education litigation is education law’s “perfect storm.”
A Statutory Scheme that
Generates Litigation
The IDEA contains several components
that work in concert to drive litigation.
Each student who qualifies for special
education services must have an Individual
Education Plan (“IEP”). The purpose of
the IEP is to formulate a plan to address
a student’s needs and identify benchmarks
for progress. These decisions are made
by an “IEP team,” which shall include
the parent and relevant educational pro­
fessionals. Theoretically, the IEP team
collaborates in a student’s best interests.
However, parents are entitled to an attorney or advocate whose presence, may in
turn, necessitate the presence of a school
district attorney. If the parties do not agree
on the IEP, the dispute escalates and initiates the due process machinery. (“Due
process” takes on a special definition as it
is applied under the IDEA.)
18
Much like other civil rights litigation,
a “prevailing party” under the IDEA can
recover attorney fees. This allows impecunious petitioners to pursue meritorious
claims, and the courts do award fees to the
prevailing party when the parent’s position
improves due to litigation. Recently the
law has changed to also allow the school
districts to recover fees for defending
against frivolous complaints or those that
are presented for an improper purpose.
However, courts have generally been
unwilling to award fees to the school
districts. Districts often make dramatic
concessions because of the specter of
attorney fee awards.
Additionally, the “stay put” provision
of the IDEA increases litigation costs and
is subject to serious abuse. During any due
process proceeding, the child must remain
in “the then current educational placement” unless the parent and district agree
to some other placement. As such, once a
child has been placed in a private placement by a district or a court order, if the
district seeks to change the placement, the
child must remain at the previous placement at the district’s expense during the
course of the litigation. Therefore, there
is a tactical advantage for the parent to
delay the proceedings to allow the student
to stay in his or her desired placement.
The IDEA contains many procedures
that make delay preferable and profitable.
These include (but are not limited to):
mediation, notice requirements, offers to
compromise and ultimately the “due
process” hearing itself. Although it
resembles civil litigation, due process
proceedings under the IDEA lack the
formality and enforcement of the federal
rules of procedure and rules of court. The
lack of formality results in the unnecessary
duplication of proceedings and wastes
August 2009
valuable resources. Also, under the IDEA,
either party can withdraw a complaint
and re-file what is essentially the same
complaint at a later date. This practice of
withdrawing and re-filing can prolong
litigation, increase attorneys fees, and pro­
vide tactical motivation to delay hearings.
Finally, each party has the right to
appeal the matter to Federal District Court
and, ultimately, to the United States Court
of Appeal. Clearly, the statutory scheme
is replete with opportunities for attorney
fees to compound exponentially.
Human Emotions
Fuel the Litigation Fire
All the stakeholders have a great emotional
investment in these proceedings. The
litigation is extremely familiar and personal. The proceedings involve people
who know each other, spend a lot of time
together and should trust each other. IEP
meetings and due process hearings often
take place in small school conference
rooms where many adults are crowded
around a small table. The proceedings
involve highly personal and sensitive
issues, such as mental illness, the home
environment, substance abuse or parenting strategies. Finally, the specter of
financial motivations on both sides can
create animosity. Each side has a genuine,
yet almost diametrically opposed perception of the same circumstances.
The Parents’ Perspective. Parents feel
duty-bound to advocate for their children.
Nothing to them is more important or
more dear. Every parent has this feeling;
however, there is something very sacred
about the love between a parent and a
special needs child. The parents may feel
responsible. They may feel let down, put
upon or shortchanged. They may feel
angry or hurt. They may feel determined
or blessed. Whatever they feel, their feelings are real.
The lay parent is initially forced to rely
on trusted educational professionals. Their
child’s teachers, principals, school psychol­
o­gist and program specialists went to school
to help their child. Parents must meet
with a large team of highly trained profes- u
Contra Costa Lawyer
Attention ADR & Tax Practitioners
There has been a change to the Contra Costa Lawyer schedule: The Tax issue
will now be published in February 2010, and we are substituting it with an ADR
issue, which will be published in November 2009. Below is a revised schedule:
Issue
Theme
Ad Deadline
October 2009
November 2009
December 2009
January 2010
February 2010
Bench/Bar
ADR
75th Anniversary issue
Annual Bar issue
Tax
August 20, 2009
September 21, 2009
October 20, 2009
November 20, 2009
December 21, 2009
Display Advertising
Size
1-time rate
3-time rate
6-time rate
12-time rate
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For further information, please contact Nancy Young at [email protected].
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19
sionals who tells them what is best for
their child. Who are they to question these
experts? However, their child may not be
making progress or it is unclear what the
school is doing. Parents are subjected to
educational jargon, such as intervention,
differentiation, push in, pullout, resource,
special day class, support service, teaching to
the whole child or other euphemistic terms
of art that likely don’t mean what they
think they mean.
Parents may or may not be aware that
special education service options are
available, and what legal rights they have.
When parents become aware of their legal
rights, they are forced to navigate a labyrinth of regulations that are so complex
and technical, only the most specialized
attorneys fully understand them. The
parents then consult an attorney or advocate who tells them that the district must
fund a perfect private program that was
not offered for their child, a feeling of
betrayal and mistrust can ensue. They
search for answers. They question the
caring and competence of the educational
professionals. Finally, fully understanding
that public education funding is flagrantly
deficient, they impugn a financial motive
upon the district. Thus, parents who are
experiencing unimaginable stress with
their child feel as though there was collusion or lying or unprofessionalism — or
any combination thereof — which hurt
their child. They feel they must do whatever is necessary to right this wrong. Not
all parents experience all or any of these
emotions. But many do. These complicated and often unknown psychological
and emotional variables often increase
litigiousness and intransigence.
The School District’s Perspective. Special
education staff members have devoted
their professional lives to educating children with disabilities. They have chosen
a difficult path with little financial reward
to help those less able to help themselves.
They have achieved advanced degrees and
remained current on the recent scientific
research in their discipline. They have
direct experience serving children with
special needs everyday. They are asked to
do more with ever dwindling financial
20
resources. They are there for the kids. It is
only human to recoil when your commitment and capability are challenged by an
unreasonable parent, the parent’s attorney
and sometimes your own counsel.
The IEP team must compare schedules
and convene a time and place that is
convenient for parents. This is rarely convenient for the educators. The meetings
can be long and tedious. The sense of
dread is compounded by the anticipated
presence of the parents’ attorney. There
is an immediate concern that the case will
proceed to litigation. This involves extra
testing, extra duties, witness preparation
and hearing time. Parents and their attorney are spending the entire IEP probing
deficiencies in the program, the testing,
the assessment, the credentials and commitment of the school personnel involved.
Don’t they understand that our budgets
are limited? Don’t they understand that
their child regularly acts out? Don’t they
understand that progress is incremental?
Don’t they understand that issues in the
home may be affecting the educational
performance? Don’t they understand the
program we are offering can help? Don’t
they understand we are doing the best
we can?
As the IEP meetings become more
prolonged, familiarity breeds contempt
and the district staff becomes more intractable. Further, mediation and alternative
dispute resolution have proven unsuccessful. There is a growing feeling that parents
are unreasonable and driven by personal
animosity against the staff. There is an
internal struggle between not wanting to
give an unreasonable parent satisfaction
and just wanting it all to go away. The
staff has repeatedly prepared for the hearing, and the case has been repeatedly
continued without regard for the district
staff’s schedule or workload. Can’t our
attorney do anything about this? And just
to add insult to injury, the student’s annual
IEP meeting comes around again. Now,
we must sit in the same room, with the
same parent and the same attorney who
has been the bane of my existence for the
last year, and the pressure is compounded
by the upcoming due process hearing.
Clearly, a bunker mentality can develop,
which is not conducive to resolution and
further fuels the litigation. Not all district
personnel allow this frustrating process
to impact their decision making. However,
we are all human and it is naïve to ignore
human frailty.
In the Eye of the Hurricane
How can the author speak with such certainty about other peoples’ thoughts and
emotions? It is because my wife and I are
at the vortex of this whirlwind. As General
Counsel for the Mt. Diablo Unified School
District (“Mt. Diablo”), I oversee Special
Education litigation and am ultimately
responsible for managing legal costs and
settlements related thereto. More importantly, I am the father of three very special
children, two of whom receive special
edu­cation services. My wife, Diane, represents school districts throughout the state
in special education litigation and is simultaneously her children’s most zealous
advocate. We have filed the briefs, argued
cases, seen abuses, experienced frustration
and felt deep pain. We have spent countless
hours ruminating about the systematic
defects that are only magnified by human
error, including our own. Despite our rever­
ence for the law, we come to the inescapable
conclusion that tinkering with the statutory
scheme will take us further down the road
to perdition. “Due process” in the context
of the IDEA is an imperfect instrument to
assure justice when everything about the
whole picture: the time, the money, the
waste, the greed, the disabilities and the
shattered dreams is so unjust. Parents work
hard. Special education staffs work hard.
Special education assistants work hard. The
doctors and attorneys work hard; but the
law doesn’t work.
That is not to say that the intent behind
the law cannot work. I know from personal
experience that these children have exceptional talents and exceptional hearts. They
deserve a chance to succeed, and our
country — now, more than ever — needs
their exceptional talents and exceptional
hearts. We need the federal government
to have the courage of its historic conviction and fund special education. Mt.
August 2009
Diablo spends approximately $67 million
of its $280 million budget on special
education. The federal government funds
less than one-fifth of its mandate. The
balance is funded through state and local
sources. Consequently, $34 million comes
from Mt. Diablo’s general fund and
“encroaches” on the general education
budget, creating a constant unhealthy
tension between the special education and
general education populations. This tension is compounded by the fact that Mt.
Diablo has recently cut annual ongoing
expenses in excess of $30 million due to
state budget shortfalls. This is an irre­
futable illustration of a system that is in
serious trouble — a ship that is about to
sink in the storm.
Additionally, we have to create programs that really serve these kids. If we
can redirect some of the resources that
have been siphoned off and used for litigation to create safe and effective programs,
the law can fulfill its purpose.
When school districts cannot provide
adequate programs, students must be
served in private placements. These placements can be very specialized and very
expensive. The school district, and, by
extension the taxpayer, must bear this
cost. When taxpayers become aware of
this, they are understandably dismayed
that they are paying for a stranger’s private
school in Connecticut. Yet again, the
emotional tension builds and the circumstances become more dire.
My family and I live in the eye of this
hurricane. We are pounded from pillar to
post by legal maneuvering, unfunded
man­dates, attorney fee challenges, inappro­
priate programs and overworked educators feeling like the only light at the end
of the tunnel is an oncoming train. But
when we kiss our children goodnight, we
vow to get up the next morning and try
to do better.... because we must. We must
do better. u
— Greg Rolen, General Counsel for the Mt.
Diablo Unified School District, oversees Special
Education litigation and is responsible for
managing legal costs and settlements for the
school district.
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David M. Lederman
Certified Family Law Specialist
Tom Smith
Associate Attorney
State Bar Board of Legal Specialization
Practicing exclusively in all aspects of Family Law
in Walnut Creek and Antioch
3432 Hillcrest Avenue • Suite 100 • Antioch, California 94531
309 Lennon Lane • Suite 102 • Walnut Creek, California 94598
Phone 925.522-8889 • Fax 925.522-8877
www.ledermanlaw.net
21
ethics corner
by Carol M. Langford
Let’s talk money . . . specifically,
borrowing money from your trust account.
In this economy — when jobs and clients
are scarce and people are struggling to
keep their heads above water — it may
be tempting for an attorney to dip into
client funds in order to meet monthly
expenses. What harm could come from
it, after all, if you have every intention of
putting the money back before the client
is even aware it is gone? The Bar will likely
never find out, will they?
Many attorneys have gone down a
similar path of reasoning. It is often a path
that can lead straight to trouble. It does
not always lead to trouble since the Bar
does not randomly audit trust accounts.
It is that lack of a watchdog that creates
the temptation. Before you are tempted
to “borrow” money from the trust account,
however, let’s discuss the law on the issue
and where the pitfalls lie.
First, the rules regarding how an
attorney must treat client funds are very
specific, unlike other rules. California Rule
of Professional Conduct 4-100 addresses
an attorney’s duty to preserve the identity
of funds and property of a client. Rule
4-100 states that all funds received or
held for a client “shall be deposited in one
or more identifiable bank accounts labeled
‘Trust Account,’ ‘Client Funds Account,’
or words of similar import.” There’s no
wiggle room there. In addition, no funds
belonging to the attorney or firm can be
22
commingled in the client account. That
means that a lawyer’s fee has to be taken
out immediately so that only client funds
sit in the account.
The benefit of the rule to the client is
obvious; but the benefit to the lawyer is
that keeping a separate client fund from
the start is a practice that saves you a lot
of frenzied last-minute fund transfers
when you finally close out a case or need
to part ways with a difficult client. For
example, let’s say your services are ter­
minated. You need to refund client monies
still in your possession, but you have
commingled them with your own money
or withdrawn client-owned funds for your
own use. You are now going to have to
scramble to get the money to refund the
client from somewhere. Desperate fund
transfers will follow, which means you
have left a trail of evidence of your perfidy
for the Bar’s forensic accounting experts
to find if they get ahold of your records.
How easy are trust accounting records
to subpoena? So easy that it is really not
worth your effort to fight the State Bar
about it. Rule 4-100(B)(3) requires that
an attorney maintain complete records of
all funds, securities, and other property
of a client that come into the attorney’s
possession. An attorney must render
appropriate accounts to the client regarding those funds. The recordkeeping of
trust accounts is Byzantine, and even the
Bar knows that probably half of the Bay
Area law firms are not in technical compliance. The truth is they only start caring
about it when a client complains that a
lawyer won’t pay them money owed.
The State Bar offers online a 108-page
pdf version of their Handbook on Client
Trust Accounting for California Attorneys. It
is free of charge and located at http://calbar.ca.gov/calbar/pdfs/ethics/CTA_
Handbook.pdf.
Proper fund accounting does not end
when the case is over or the client has
terminated your services. The rules require
that you maintain these records from the
date of receipt of client funds through the
period ending five years from the date of
disbursement of such funds. So don’t
throw your records away, or you will be
found to be automatically not in compliance with accounting rules, and you will
still have to spend enormous time digging
up the records for the Bar.
Let’s turn to the current level of discipline levied by the Bar against attorneys
who take a small dip into their client’s
Please send your ethics questions to:
Carol Langford
100 Pringle Avenue, Suite 570
Walnut Creek CA 94596
[email protected]
(If your question is answered in a future column,
your name/firm name will be omitted.)
August 2009
trust account. Well, discipline has gotten
harsher under Scott Drexell’s tenure as
Chief Trial Counsel of the State Bar, but
hopefully that will change since his contract was not renewed. Based on a survey
of cases from the last three months, however, the going rate can be as high as three
months suspension for a small violation
or as high as one to two years suspension
depending on the amount of the theft,
whether there was client harm, and other
factors such as additional misconduct.
When trust violations are coupled
with other misconduct, as they often are,
the punishment gets even steeper. One
attorney was disbarred for misappro­
priating over $26,000 in client funds,
violating trust account rules, failing to
provide an accounting to his client, and
preparing and submitting false docu­
mentation of his defense of his State Bar
matter to the Bar.
What if you would rather not deal with
client trust accounting rules and prefer
to take something else from your client
— such as a car or a really nice rug — to
compensate you for your services? Rule
3-300 says that an attorney shall not enter
into a business transaction with a client
unless the transaction is fair and reasonable to the client. So, you may not be able
to accept that mint condition vintage
Mercedes as payment for drafting a lease
agreement. However, this doesn’t mean
that trading goods for services is completely out of the question. Accepting a
car, for example, as payment from your
client is fine as long as you make sure that
it is a fair and reasonable transaction — fair
and reasonable to your client, that is. In
these tough times, a client may be happy
to offer goods for services and there is no
reason a lawyer can’t do that if it is done
right. u
— Carol M. Langford is an attorney that
specializes in providing ethics advice and State
Bar defense to lawyers throughout California.
Her office is in Walnut Creek, California. She
is also an adjunct of professor of ethics at UC
Hastings College of the Law.
Contra Costa Lawyer
and
Mediation Center
Conservatorships
Medi-Cal Planning / Eligibility
Estate Planning
Elder Law
ote
se n ss!
a
e
l
P Addre
new
Ron Mullin
Willows Office Park p 1355 Willow Way, Suite 110
Concord, California 94520
Telephone (925) 798-3413 p Facsimile (925) 798-3118
Email [email protected]
Elder Law is
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.
If the diagnosis is Alzheimer’s,
call elder law attorney
Michael J. Young
Estate Planning, Disability, Medi-Cal,
Long-term Care & VA Planning
Protect your loved ones, home and independence.
Alzheimer’s
Planning
n
925.256.0298
www.YoungElderLaw.com
1931 San Miguel Drive, Suite 220
Walnut Creek, California 94596
23
local civil jury verdicts
by Matthew P. Guichard
Our last article reported January and
February 2009 civil trial statistics. We
received statistics for March, April and
May in a timely manner, but didn’t include
until now since so few attorneys sub­mitted
actual trial reports. We write a Verdicts
column when we have trial reports to talk
about. Absent trial reports, there is no
point in writing an article.
At least two judges regularly ask why
their trial summaries do not appear in this
column. The same response applies as it
has for years: if lawyers do not report their
civil jury verdicts to me, I cannot write
about those verdicts.
The point is, please report your trials
to me. Encourage your colleagues to do
the same.
March saw two civil cases go to jury verdict in our superior courts, with the
plaintiffs prevailing in both. Of April’s
three civil jury verdicts, the plaintiffs
prevailed in two cases and the defendant
in one. And the plaintiffs prevailed in all
four of May’s civil jury verdicts.
Our first case, Vickey S. Hough v. Costco
Wholesale Corporation, Case No. C07-01920,
involved allegations of a slip and fall at a
Costco store. The Honorable Thomas
Maddock presided. James J. O’Donnell
of Walnut Creek represented the plaintiff,
while Robert McNulty, also of Walnut
Creek, represented the defendant.
The plaintiff in this case alleged she
slipped and fell on some grapes as she left
the checkout area, further claiming the
need for knee replacements on both legs
as a result of the incident. She claimed an
unsafe condition, in that Costco did not
follow its own clean-up procedures.
Costco, on the other hand, denied lia­bility,
claiming insufficient notice of the spill
and denied causation for knee replacements and related loss of earnings.
At trial, Costco stipulated that the
medicals and loss of earnings were reasonable, but denied they were related to the
alleged fall. Prior to trial, the plaintiff
demanded $450,000, then reduced that
to $25,500 at a second pretrial mediation.
At trial, the plaintiff’s counsel asked the
jury to award $250,000.
The defendant made an initial CCP
998 offer of a waiver of costs, then offered
$5,000 by way of a later CCP 998 offer.
The jury returned a verdict in favor of
the plaintiff in the amount of $3,650.
(Yes, that is three thousand, six hundred
and fifty dollars.)
An interesting settlement in our county
required us to omit the names of the
defendants. The plaintiff was Gary Taylor,
a pipefitter, and the case was venued in
Contra Costa County. The Honorable
Raul A. Ramirez (Retired) of Sacramento
mediated the case. Concord’s Michael
Young Design
Production
D E S I G N
W R I T I N G
925.790-2600 • [email protected] • www.amllp.com
24
Specializing in
law firm brochures
and newsletters
E D I T I N G
Nancy Young
Owner
Young Design & Production
is the designer for the Contra
Costa County Bar Association
P.O. Box 1867  Benicia, CA 94510
(925) 229-2929 or (707) 279-1818
email: [email protected]
August 2009
Goforth represented the plaintiff in both
the personal injury case and his workers’
compensation case.
The plaintiff was injured while working at an industrial site in Martinez. He
alleged that his injury occurred when he
was on a scaffold that was not safely
constructed. He also claimed the owner
failed to protect the integrity of the site,
and that his employer failed to inspect
the work site and failed to properly train
his workers. As a result of these injuries,
the plaintiff alleged he could not return
to work as a pipe fitter.
The case settled at mediation for the
gross sum of $1,500,000. The workers’
compensation intervenor agreed to waive
its $322,614.17 industrial lien.
Robert Hodges of Walnut Creek reported
on his successful defense verdict in the
San Francisco Superior Court. Van Hoesen
vs. Anthony, Case No. CGC-06456359,
was tried before The Honorable Tovar
Mason. Allan Lerch of San Francisco
represented the plaintiff and Robert
Hodges of the McNamara firm represented defendant.
On July 13, 2005, the 48-year-old
plaintiff underwent facial cosmetic plastic
surgery, including neck and cheek lift,
upper and lower lid blepharoplasty, and
liposuction of her upper arms. Postoperatively she complained of dry-eye
syndrome, allegedly due to her inability
to fully close her eyes, which she contended
was due to the plastic surgeon’s removal
of too much skin from the eyelid procedure.
She sought treatment from approximately
22 separate practitioners post-operatively.
As a violinist for the San Francisco Symphony, she contended she was disabled.
The defense countered that the surgery
was performed within the standard of
care, that all surgical risks were fully
discussed including the possibility of
lagophtalmos (inability to fully close the
eyelids), and that the risk of permanent
lagophthalmos was remote and rare, and
most likely caused by scar tissue.
After a 10-day trial, the plaintiff’s
attorney asked the jury to award $330,000
in damages to his client. The defense
counsel asked the jury to return a defense
verdict. The jury deliberated for approximately 11 hours over two days and
returned a defense verdict on behalf of
the plastic surgeon.
And in the case of a losing party reporting
on an out-of-county jury trial verdict, here
is our report. Brunson v. Oliva, Case No.
CV04-000009, was tried before The
Honorable Kathleen M. White in Yolo
County Superior Court. Matt Guichard
and Jeffrey Stromberg represented the
plaintiff, while Thomas J. Doyle of Sacramento represented the defendant doctor.
The plaintiff consulted with defendant
surgeon for a mass on the left side of the
Arlene Segal
no
te n
Addr ew
Law Offices of Arlene Segal
Litigation - Mediation
Trust and Estate Disputes • Financial Abuse
100 Pringle Avenue, Suite 780 • Walnut Creek, CA 94596
telephone (925) 937-4224 • fax (925) 937-4273
Contra Costa Lawyer
ess!
plaintiff’s neck. The defendant performed
outpatient surgery at a Woodland medical clinic. The defendant obtained the
pathology report that indicated the mass
was a schwannoma (a benign tumor of a
nerve). The only major nerve in that area
of the neck is the spinal accessory nerve.
The plaintiff was not advised that the
spinal accessory nerve had been excised
and was instead referred for physical
therapy. After months of continuing pain
and significant atrophy of his trapezius
muscle, the plaintiff learned of the injury
to the spinal accessory nerve. He then
underwent a rare surgery to reattach
muscles in his back and shoulder to compensate for the total loss of the trapezius
muscle. To this day, the plaintiff cannot
fully raise his left arm.
Interestingly, had the injury been
discovered within six months, a nerve
graft would have been possible, and the
trapezius muscle saved.
The jury found the defendant’s conduct
in excising the spinal accessory nerve, then
failing to advise client that he had excised
the nerve, did not fall below the standard
of care. u
— Matthew P. Guichard is a principal in
Guichard, Teng & Portello, APC. Send case
information to: 1800 Sutter Street, Suite
730, Concord 94520 or contact Matt at
925.459-8440, fax: 925.459-8445 or
[email protected].
Attorney Counseling Evenings
The 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’re interested in volunteering for an
upcoming ACE Night, please contact
CCCBA’s Michele Vasta at 925.370-2548
or [email protected].
25
advertisers’ index
ADR Services, Inc. . . . . . . . . . . . . . . . . . 19
offices
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contract
attorneys...
job
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classifieds
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Lease a fully furnished window office
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and easy access to freeway and BART. Call
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Window Office – Walnut Creek
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professional announcements
Pedder, Hesseltine, Walker & Toth, LLP . . 17,26
Lafayette Transit Village Office Space
Office and paralegal station in business
law firm next to BART in Lafayette (27
min. to Montgomery Street BART station).
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Roger F. Allen . . . . . . . . . . . . . . . . . . . . . 7
Armanino McKenna LLP . . . . . . . . . . . . 24
Barr & Barr Attorneys . . . . . . . . . . . . . . . 27
Braverman Mediation & Consulting . . . . .13
Diablo Valley Reporting Services . . . . . . 28
Glenn & Dawson LLP . . . . . . . . . . . . . . . 12
Law Offices of Arlene Segal . . . . . . . . . . 25
Law Offices of David M. Lederman . . . . . 21
Mechanics Bank . . . . . . . . . . . . . . . . . . . 21
Mullin Law Firm . . . . . . . . . . . . . . . . . . . 23
Mark V. Murphy . . . . . . . . . . . . . . . . . . . 12
Scott Valley Bank . . . . . . . . . . . . . . . . . . . 7
Share building with 7 solos. One office
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Young Design & Production . . . . . . . . . . 24
Located near the courthouse in downtown Martinez (CCCBA office). Standard
room (seats 10-12) $150 all day/$75 half
day; Mobile room: (full - seats up to 30) $200
all day/$100 half day; (subdivided - seats
up to 10) $75 all day; $40 half day; both
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hourly rate. Call Manny, 925.370-2549.
Michael J. Young . . . . . . . . . . . . . . . . . . 23
Youngman, Ericsson & Low, LLP . . . . . . . 26
Zandonella Reporting Service . . . . . . . . 27
Bishop Ranch Office Space
Financial planning firm has 2 offices
avail within suite. Rents $800 to $1000/
mo., shared conf. rm, recep area, kitchen.
Great location! Call 925.866.1246.
Probate paralegal to attorneys
Joanne C. McCarthy. 2204 Concord Blvd.
Concord, CA 94520. Call 925.689-9244.
Private Investigator
Bob Bailie Investigations can help to
find that witness and confirm facts. Over
30 years of experience. Call 925.934-4904
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To place a display or classified ad,
call Young Design & Production at
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run as little as $36 per ad.
Youngman, Ericsson & Low, LLP
1981 North Broadway • Suite 300
Walnut Creek, CA 94596
Tax Lawyers.
(925) 930-6000
26
August 2009
Will & Trust Litigation
Elder Abuse Litigation
•
Conservatorships
BARR & BARR
ATTORNEYS
101 Gregory Lane, Suite 42 • Pleasant Hill, CA 94523-4915 • (925) 689-9944
Edward E. Barr
Loren L. Barr*
Joseph M. Morrill
Christopher M. Moore
John Milgate, Of Counsel
Tracey McDonald, Paralegal
*Certified Specialist, Estate Planning, Trust and Probate Law, The State Bar of California Board of Legal Specialization
Contra Costa Lawyer
27