RYE16 AW DE20 TO-L GUIR- ALYE RW ERLA REFTHE MAGAZINE OF THE LOS ANGELES COUNTY BAR ASSOCIATIONJUNE 2016 / 5EARN MCLE CREDITLIABILITY OFIN-HOUSECOUNSELpage 23PLUSRECEIVERSHIPSFOR BLIGHTEDPROPERTIESpage 28On Direct:Paul Kieselpage 8FCRP Changespage 11DigitalCopyrightpage 14PAGAPerformanceLos Angeles lawyerLaura Reathaford studies issues ofmanageability and class certificationin PAGA litigationpage 18
F E AT U R E S18 PAGA PerformanceBY LAURA REATHAFORDIssues of class certification and manageability continue to preclude a one-sizefits-all approach to litigation under the Private Attorney General Act23 Trouble at HomeBY DAVID B. PARKER, ELLIOTT BENJAMIN, AND JOEL A. OSMANWhile the same ethical rules apply to outside and in-house counsel, public policyconsiderations of the employment relationship are also implicatedPlus: Earn MCLE credit. MCLE Test No. 258 appears on page 25.28 The Right ReceiverBY ANDREW FITZGERALD ADAMSThe increasing application of receiverships indicates that concerns about notice,documentation, and political repercussions may be properly addressed32 Special Section2016 Lawyer-to-Lawyer Referral GuideLos Angeles Lawyerthe magazine ofthe Los Angeles CountyBar AssociationJune 2016D E PA RT M E N T S8 On DirectPaul KieselINTERVIEW BY DEBORAH KELLYBY CHRISTOPHER L. PEREZVolume 39, No. 4COVER PHOTO: TOM KELLER14 Practice TipsConsideration of the DMCA exemptionfor documentary filmmakers10 Barristers TipsGuidance on post-ATRA estate planning—portability and A-B trustsBY ZACHARY S. DRESBEN36 Closing ArgumentProposals for bridging the justice gapacross the nationBY MARY E. KELLY11 Practice TipsChanges to the FRCP highlight need fore-discovery expertiseBY A. MARCO TURKLOS ANGELES LAWYER (ISSN 0162-2900) is publishedmonthly, except for a combined issue in July/August, by theLos Angeles County Bar Association, 1055 West 7th Street,Suite 2700, Los Angeles, CA 90017 (213) 896-6503. Periodicals postage paid at Los Angeles, CA and additional mailingoffices. Annual subscription price of 14 included in theAssociation membership dues. Nonmember subscriptions: 38 annually; single copy price: 5 plus handling. Addresschanges must be submitted six weeks in advance of nextissue date. POSTMASTER: Address Service Requested. Sendaddress changes to Los Angeles Lawyer, P. O. Box 55020,Los Angeles CA 90055.06.16
VISIT US ON THE INTERNET AT WWW.LACBA.ORG/LALAWYERE-MAIL CAN BE SENT TO LALAWYER@LACBA.ORGEDITORIAL BOARDChairDONNA FORDArticles CoordinatorTED M. HANDELAssistant Articles CoordinatorJOHN C. KEITHSecretarySANDRA MENDELLImmediate Past ChairMARY E. KELLYJERROLD ABELES (PAST CHAIR)ETHEL W. BENNETTSCOTT BOYERCHAD C. COOMBS (PAST CHAIR)HON. MICHELLE WILLIAMS COURTGORDON K. ENGSTUART R. FRAENKELMICHAEL A. GEIBELSON (PAST CHAIR)CHRISTINE D. GILLESHARON GLANCZSTEVEN HECHT (PAST CHAIR)DENNIS HERNANDEZERIC KINGSLEYKATHERINE KINSEYDANIELLE LACKEYJENNIFER W. LELANDPAUL S. MARKS (PAST CHAIR)COMM’R ELIZABETH MUNISOGLUPAUL OBICOTYNA ORRENCARMELA PAGAYDENNIS L. PEREZ (PAST CHAIR)GREGG A. RAPOPORTGARY RASKIN (PAST CHAIR)JACQUELINE M. REAL-SALAS (PAST CHAIR)DAMON THAYERTHOMAS H. VIDALSTAFFEditorERIC HOWARDArt DirectorLES SECHLERDirector of Design and ProductionPATRICE HUGHESAdvertising DirectorLINDA BEKASAdministrative CoordinatorMATTY JALLOW BABYCopyright 2016 by the Los Angeles County Bar Association. Allrights reserved. Reproduction in whole or in part without permissionis pro hibited. Printed by R. R. Donnelley, Liberty, MO. MemberBusiness Publications Audit of Circulation (BPA).The opinions and positions stated in signed material are those ofthe authors and not by the fact of publication necessarily those of theAssociation or its members. All manuscripts are carefully consideredby the Editorial Board. Letters to the editor are subject to editing.4 Los Angeles Lawyer June 2016
LOS ANGELES LAWYER IS THE OFFICIAL PUBLICATIONOF THE LOS ANGELES COUNTY BAR ASSOCIATION1055 West 7th Street, Suite 2700, Los Angeles CA 90017-2553Telephone 213.627.2727 / www.lacba.orgLACBA EXECUTIVE COMMITTEEPresidentPAUL R. KIESELPresident-ElectMARGARET P. STEVENSSenior Vice President and TreasurerMICHAEL K. LINDSEYVice PresidentDAVID K. REINERTAssistant Vice PresidentBRIAN K. CONDONAssistant Vice PresidentDUNCAN W. CRABTREE-IRELANDAssistant Vice PresidentHON. BRIAN S. CURREYImmediate Past PresidentLINDA L. CURTISBarristers PresidentROBERT S. GLASSMANBarristers President-ElectDAMON A. THAYERChief Executive Officer/SecretarySALLY SUCHILChief Financial & Administrative OfficerBRUCE BERRAGeneral Counsel & Chief Administrative OfficerW. CLARK BROWNBOARD OF TRUSTEESHARRY W.R. CHAMBERLAINNATASHA R. CHESLERREBECCA A. DELFINOMIGUEL T. ESPINOZAKENNETH C. FELDMANJO-ANN W. GRACEHARUMI HATASTACY R. HORTH-NEUBERTSAJAN KASHYAPMARY E. KELLYLAVONNE D. LAWSONF. FAYE NIAANNALUISA PADILLAJUAN A. RAMOSSARAH V.J. SPYKSMADAVID W. SWIFTJEFF S. WESTERMANROXANNE M. WILSONAFFILIATED BAR ASSOCIATIONSBEVERLY HILLS BAR ASSOCIATIONCENTURY CITY BAR ASSOCIATIONCONSUMER ATTORNEYS ASSOCIATION OF LOS ANGELESCULVER MARINA BAR ASSOCIATIONGLENDALE BAR ASSOCIATIONIRANIAN AMERICAN LAWYERS ASSOCIATIONITALIAN AMERICAN LAWYERS ASSOCIATIONJAPANESE AMERICAN BAR ASSOCIATIONJOHN M. LANGSTON BAR ASSOCIATIONLESBIAN AND GAY LAWYERS ASSOCIATION OF LOS ANGELESMEXICAN AMERICAN BAR ASSOCIATIONPASADENA BAR ASSOCIATIONSAN FERNANDO VALLEY BAR ASSOCIATIONSANTA MONICA BAR ASSOCIATIONSOUTH BAY BAR ASSOCIATIONSOUTHEAST DISTRICT BAR ASSOCIATIONSOUTHERN CALIFORNIA CHINESE LAWYERS ASSOCIATIONWOMEN LAWYERS ASSOCIATION OF LOS ANGELESLos Angeles Lawyer June 2016 5
Public service has been a theme of From the Chair overthe last several months, covering a variety of publicservice opportunities for Los Angeles lawyers, including LACBA’s Veterans Project and Lawyer Referral Service,Judge Pro Tem service, and the State Bar’s Justice Gap Fund.For my last column I would like to discuss another form of public service—government employment.I am a retired Assistant U.S. Attorney who served nearly 25 years. I worked forless money than my counterparts in law firms, but the work was engaging andchallenging. Even run-of-the-mill immigration or FOIA cases were interesting. Forinstance, one of my first FOIA cases involved a Russian sailor who jumped ship onthe Mississippi River to seek asylum and was returned to the Russian vessel byU.S. authorities. U.S. officials interviewed the sailor to determine if he really wantedto stay in Russia, as he later declared, and a government watch group sought thetape of that interview. In another case, I represented former President RonaldReagan. The parties sought to depose Reagan to determine his involvement in theexodus of the Marcos family from the Philippines through Hawaii, allegedly withCIA assistance, taking a golden Buddha with them. In civil employment discriminationcases, I represented an army general in a deposition, and in a case brought by aformer covert operative against the CIA, one of my main witnesses who testified incourt was the Director of Operations—the guy in charge of the spies. At one pointin that case, I told my husband that I had to go out of town on a trip “to a placethat doesn’t exist,” to talk to a man “who isn’t really who he is.” My husband, avery understanding man, just smiled, shook his head, and asked that I call himperiodically to let him know that I was OK. In the early 1990s, I represented anumber of government agencies involved with the installation of Nexrad Dopplerradars across the country. The Coalition of Ojai and actor Larry Hagman sued,resisting the installation of a radar on Sulphur Mountain. I also handled civil rights,Fair Housing Act cases, and what I have been told was the largest quiet title actionin the country, concerning approximately 3.5 million acres of government land.On the criminal side I prosecuted alien trafficking and bribery of a governmentofficial for false citizenship documents used to obtain U.S. passports. Internationally,there were countless Mutual Legal Assistance Treaty (MLAT), letters rogatory, andextradition cases involving theft, rape, sex trafficking, and fraud. The MLAT caseswere filed under seal, so I cannot be specific about the facts—but one involved amultiday interview of a former head of a foreign state, with high-ranking officialsfrom that country present.I also had the opportunity to work in Washington, D.C., with the AttorneyGeneral’s Advisory Committee on Native American issues, the White Collar CrimeCouncil, and securities, bank, telemarketing, and healthcare fraud. I attended meetings at the Federal Reserve and gave presentations at the White House Annex.The rewards are not just subjective. I received commendations from manyagencies, including the Department of Homeland Security, the navy, the army, theDepartment of Labor, and the Civil Rights Division of the Department of Justice,as well as special achievement awards from Attorney General Janet Reno.Public service employment is certainly something to consider at any point inyour career—it is rewarding, fulfilling, and can be very interesting. Many lawyersleaving the USAO say that it was the most fun job. For me, it was my disc jockeyjob at a radio station on the east coast—that was pure fun!nDonna Ford is a retired Assistant U.S. Attorney.6 Los Angeles Lawyer June 2016
on directINTERVIEW BY DEBORAH KELLYPaul Kiesel Partner, Kiesel Law LLPYou are consistently selected as a top plaintiffattorney in California. What sets you apart? It’sprobably my willingness to make a contribution to the legal community as a whole. Ihave never had an insular practice, and thatallows me to interact with other lawyers.You teach many CLE classes. Do you have afavorite war story? No. What I like the mostis teaching technology, when they are allgood lawyers, graying lawyers, who arestretching themselves rather than living inan age of carbon paper and typewriters.PAUL KIESEL The 2015-16 president of LACBAand past chair of its Litigation Section, PaulKiesel is also the cochair of the Open CourtsCoalition, a bipartisan committee of California attorneys advocating for funding ofthe civil justice system. His practice is devoted to representing plaintiffs in personalinjuries and consumer class actions.What is the perfect day? I live it most days. Ifthere was a glass of water and it had 10 percent liquid in it, I would tell you it’s 90 percent away from being full. I feel so fortunateto have the opportunity to practice lawevery day in this country.At your firm, Kiesel Law, you specialize in representing consumers. What kind of case is closestto your heart? Catastrophic personal injuries, representing individuals and familieswho have either suffered a catastrophicloss themselves or have had loved oneswho have passed. It allows me to take careof someone who needs help.In 2013, your own firm emerged after 14 yearswith partners Boucher and Larson. What happened? Two partners went through devastating divorces. One wound up on the frontpage of the Los Angeles Times. Family lawissues permeated the practice for over sevenyears.8 Los Angeles Lawyer June 2016Are you a techie? For at least 20 years, I’vebeen the technology columnist for the DailyJournal. Technology has always been one ofmy passions. The only way to really do bigthings is to use technology.It’s hard to find a big case you’re not involvedin—Miramonte sex abuse, Metrolink, PorterRanch homeowners. How do you get these important matters? I hope that I have a leadership style that is not abrasive, but is built onconsensus. I am able to work with largeteams of firms, in concert.What is misunderstood about being a tortattorney? Most people view us as preyingon the misfortunes of others and capitalizing on peoples’ worst moments, and notreally on the best of why lawyers do thework. I try to proclaim what I do for aliving, embrace it.You won a California Supreme Court case aboutorganic food labeling. Are you a healthy eater? Iam incredibly conscious of my physical activity, but I am the worst eater.If you had to choose only one entree for the restof your life, what would it be? Raisin Bran.What is your favorite exercise? Elliptical orstair master.Your client reviews call you the “easiest lawyerto reach in the country.” Why? Wherever I amin the world, I always get the message. If I’mnot there to reach out to a client, then I’mdoing something wrong.Why did you choose this profession? I wantedto do this since I was eight years old. Wehad a dear friend of the family who was apersonal injury lawyer, and he had the beststories.Whittier College of Law now has the KieselAdvocacy Center. How involved were you in itsdesign? The school ran the plans by me.It’s a spectacular facility. It’s gorgeous; theuse of wood, stone, and light appeals to myaesthetic. This was hard for me because Iwas taught that true giving is anonymousgiving.You are a senior fellow of the Litigation Counselof America, a trial honorary society. What advicedo you give to new lawyers? The same adviceto old lawyers; be a part of the community,stay involved.What was your best job? I’m livin’ it.What was your worst job? I was a cashier atShop Rite Supermarket. It was a union joband it paid pretty well, but the manager toldme to stop having so much fun. I actuallydrew pictures on the paper grocery bags; myboss was unhappy.What characteristic do you most admire in yourmother? Her capacity to love.You are currently president of the Los AngelesCounty Bar Association. What is your majorduty? Managing the financial obligations ofan organization with a staff of 74 and anannual budget of 13 million. I try to makerecommendations in the operation of thebar like the running of my practice, which isbe mindful of your pennies because yourdollars will take care of themselves.How is it going? It’s not been easy, becausethere are folks that have a historic memoryof an organization that, maybe, had different priorities or was at a different time.The organization has survived for over 100years, but it needs to change to survive thenext 100 years. We need to develop thetools to make the bar relevant for the nextcentury.
Bar Associations across the nation are experiencing membership problems. What haschanged? People don’t feel the need to beconnected to bar organizations that they did50 years ago. Today, social networking andlive-streaming seminars have replaced, inpart, the benefit that the bars used to provide. Now we need to figure out what thenext step is, what is the future.A Metropolitan News headline said that LACBA“fleeces” its attendees at events. What’s goingon? I think everyone would agree that theorganization should not run at a loss. Theperception of some is that if the cost of aprogram is 2,000 and you recover 2,000from the people who attend, you are breaking even. You are not. We need to havemore revenue than the actual cost of theprogram. You have to run the organization.That’s not fleecing anyone—that’s being responsible stewards of an institution.What is the biggest challenge facing LACBA?Attracting new, young lawyers and establishing the value added that the bar organizations have. An extraordinary valueadded, in California, is the relationship between the bar and the bench. If you arepart of a bar organization, you have theopportunity to engage with a judicial offi-cer in a much different way.to see different parts of the world.Should the bench attend bar events for free?There are certain events that judicial officersshould not have to pay to attend. The moreengagement we have with judicial officers asa bar organization, the better our organization will be.What do you do on a three-day weekend? Stayin bed, schnuggle with my wife of 27 years,and watch TV that was recorded.You are cochair of the Open Court Coalition(OCC), a bipartisan committee advocating fullfunding of the civil justice system. What is thebiggest challenge facing the courts? How todeliver services in the new century that isdifferent than the way the services were delivered in the last couple of centuries.Who is on your music play list? Classical musicfills my soul.What book is on your nightstand? The Verdict,by English author Nick Stone, in the vein ofTurow and Grisham. It’s a fun book.Which fictional hero would you like to be? DirkPitt, a spy extraordinaire created by authorClive Cussler.Which magazine do you pick up at the doctor’soffice? Esquire.What is your favorite vacation spot? I really likeWhich television shows do you record? RealityTV—Survivor, The Amazing Race—mindless shows.What are your retirement plans? When I stopenjoying it, I’ll walk away.If your house were on fire, what would you grabon your way out? First, the family and ourdog, Zoe. Ten years ago, I’d have said myphotographs. Today I’ll say my computer’shard drive—it’s all there.Which president would you most like to take outfor a beer? Bill Clinton. He’s been at ourhouse, and he’s fun.What are the three most deplorable conditionsin the world? Poverty, ethnic warfare, lack ofmedical care in much of the world.Who are your two heroes? Martin Luther Kingand Golda Meir.What is the one word you would like on yourtombstone? Honest.Los Angeles Lawyer June 2016 9
barristers tipsBY ZACHARY S. DRESBENGuidance on Post-ATRA Estate Planning—Portability and A-B TrustsPASSAGE OF THE AMERICAN TAXPAYER RELIEF ACT of 2012 (ATRA)established rules for the estate tax that include a relatively newtransfer tax rule known as portability. While portability contributesto the complexity of the estate planning process, the rule also providesfor new estate planning opportunities that were previously unavailable.It is particularly relevant in estate planning for married couples withestates of less than 10.9 million, since this year the estate tax exemption has been raised to 5.45 million for individuals (thus 10.9million between the spouses) with an estate tax rate of 40 percent.Portability allows the surviving spouse (SS) to use the unusedestate tax exemption, if any, of the deceased spouse (DS) if a portabilityelection is made on a timely filed estate tax return and the DS haspassed away after December 31, 2010. In other words, if the DShas not used his or her permitted estate tax exclusion in its entirety,the unused portion, referred to as deceased spousal unused exclusion(DSUE) amount can be transferred to the SS for his or her use inaddition to the SS’s own exclusion amount at death. If the communityestate is 8 million and the DS deceases in 2016 bequeathing his orher 4 million to the adult children, 1.45 million of exclusion maybe used by the SS spouse at his or her death in addition to his or herown exclusion amount. Although simple in concept, portability hasmany nuances. For instance, if the SS remarries, the applicable DSUEamount is the one belonging to the last DS, meaning the SS may usehis or her former-late-spouse’s DSUE amount if he or she predeceasesthe current spouse but may not if he or she survives the new spouse.Portability cannot be used to transfer the DS’s unused generationskipping transfer (GST) tax exemption.Portability vs. A-B Trust PlansBefore the introduction of portability, if the DS did not use his orher entire estate tax exclusion, the DSUE amount was wasted. BeforeATRA, the traditional A-B trust plan was regarded as the best estateplanning tool for a married couple that desired that the SS receivebenefits of the DS’s estate without subjecting those assets to estatetax. Under an A-B plan, the community trust estate is divided intotwo shares upon the DS’s death. The share representing the SS’s onehalf interest in the community estate and any of his or her separateproperty is allocated to the survivor’s trust or A, which is a revocabletrust for the SS’s benefit. The SS serves as trustee and retains thepower to amend and revoke A, the unlimited right to withdrawincome and principal, and the power to dispose of assets in favor ofany third parties either during lifetime or at death. The communityproperty passing to A w
32 Special Section 2016 Lawyer-to-Lawyer Referral Guide FEATURES Los Angeles Lawyer the magazine of the Los Angeles County Bar Association June 2016 Volume 39, No. 4 COVER PHOTO: TOM KELLER 06.16 8 On Direct Paul Kiesel INTERVIEW BY DEBORAH KELLY 10 Barristers Tips Guidance on post-ATRA estate planning— portability and A-B trusts BY ZACHARY S .
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