CMCP Newsletter - May / June 2009

•	Increasing Opportunities for Lawyers of Color to Try Cases for Corporate Clients

•	San Francisco DA's Office on the Recent Achievements in Marriage Equality and Overcoming Proposition 8

•	Spotlight: PG&E General Counsel - Hyun Park

•	Diversity by Community Building

•	You’ve Been Served: Potential Liability for Companies Suing Anonymous Bloggers and Subpoenaing their Identities

•	Diversity Pipeline: Western Region of National Black Law Students Association’s Academic Retreat

•	Recap of CMCP's Judges' Reception in Los Angeles - March 19

•	Announcements

•	Member Newslink

•	Diversity Calendar

	Increasing Opportunities for Lawyers of Color to Try Cases for Corporate Clients (Part I of II)
	by Marcellus McRae, Partner, Gibson, Dunn & Crutcher LLP, Lost Angeles
	There is no doubt that diversity has become one of the most salient topics in the legal community. Nor is there any doubt that the need for demonstrable progress on this front still remains acute. As other topics on diversity have been written about, this article focuses on just one dimension where this need is particularly conspicuous; namely, the court room.
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	Recent Achievements in Marriage Equality and Overcoming Proposition 8
	by Paul Henderson, Chief of Administration, San Francisco District Attorney's Office
	Whether by court order in interpreting the Iowa state constitution, a powerful and unanimous legislative enactment overriding the Vermont governor’s veto, or, for the first time in United States history, by a legislative enactment in Maine that received the governor's signature and approval, these states have brought our nation closer to its promise of equality for all. For these achievements, we owe deep gratitude to determined and unrelenting civil rights advocates, as well as the every day families headed by same sex couples who have struggled against discrimination so that their children could inherit a fairer and more just world.
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	Diversity by Community Building
	by David Tsai, Associate, Townsend and Townsend and Crew LLP, San Francisco
	Being Asian-American and gay, and being a patent attorney, I see myself having to cross various racial, ethnic, sexual, and cultural boundaries, and depending on the circumstances or the community, I find myself navigating through the intersectionality of being a person of color and being a sexual minority. For Asian American Heritage Month in May and LGBT Pride Month in June, I am again reminded of the cross cultural identities to which some of us may belong.
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	You’ve Been Served: Potential Liability for Companies Suing Anonymous Bloggers and Subpoenaing their Identities
	by David G. Halm, Managing Shareholder, Pettit Kohn Ingrassia & Lutz, PC, Los Angeles; and Nicholas T. Hua, Attorney, Law Offices of Nicholas T. Hua, Beverly Hills, CA
	In the wake of the economic downturn, recently laid off employees may desire to “sound off” against their former employers in cyberspace. Companies should be careful in analyzing whether a lawsuit arising out of anonymous criticism on Internet websites, chat rooms and message boards would face early dismissal if the court granted an anti-SLAPP motion to strike, especially since losing an anti-SLAPP motion warrants a mandatory award of fees.
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	Diversity Pipeline: Western Region of National Black Law Students Association’s (WRBLSA) Academic Retreat
	by Sunita Bali, Academic Retreat Coordinator for WRBLSA and 2L at USC Law School
	On September 20, 2008, the Western Region of the National Black Law Students Association held its annual Academic Retreat at Southwestern Law School in Los Angeles, California. The event began with academic sessions for first, second, and third year law students. The 1L session was an exam writing workshop hosted by Professor Peter Wendel of Pepperdine University School of Law, and the 2L session was a round table discussion entitled "I finished my first year. Now what?" hosted by Professors Nyree Gray and Karen Smith of Southwestern School of Law. The 3L session, held by Elizabeth Belser of BarBri, was designed to give 3Ls an idea of how to begin planning for the bar exam.
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	CMCP Judges' Reception Celebrates Growing Diversity in the Judiciary by Sheila A. Khan-Variba, Sanchez & Amador, LLP
	On March 19, 2009, CMCP held its first annual Judges’ Reception in Los Angeles to celebrate the growing diversity in the judiciary and contributions of minority judges in Southern California. Although the Judges’ Reception is one of many notable events at CMCP’s Annual Business Conference, this was the first stand-alone reception of its kind. Wells Fargo Bank graciously hosted this event, which was sponsored by Locke Lord Bissell & Liddell LLP. And the 110 attendees brought an energy and enthusiasm that inspired all. Attendees included 18 state and federal judges and 92 CMCP members and friends. Richard Amador, CMCP’s Event/Program Committee Chair and managing partner of Sanchez & Amador, LLP and the Co-Chair of CMCP’s E-Newsletter Committee Nicholas Hua, of Law Offices of Nicholas T. Hua. spearheaded this reception. The Wells Fargo Bank museum was filled with attendees from near and far. Nicholas Hua, Patricia Musitano of Locke Lord Bissell & Liddell and Co-Chair of CMCP’s Recruitment and Membership Committee, Lupe Valencia, General Counsel of Wells Fargo Bank, and Honorable Audrey B. Collins, Chief U.S. District Court Judge, all gave inspiring remarks. They underscored the importance of supporting our minority judiciary members and the impact of their presence on the bench and legal profession. This event gave CMCP members a unique opportunity to mix and mingle with judges in a relaxed setting and pose questions we wouldn’t dare ask in open court! This was also an opportunity for members to network with a cross section of the legal community, including minority-owned law firms, major firms, in house counsel, public interest lawyers, and judges throughout the region. All of the judges were extremely approachable, candid and eager to pass along the many pearls of wisdom they’ve collected over the many years. As you walked through the museum, you could hear judges in lively discussions about the need to pursue your passion, achieve work/life balance, and to maintain professionalism and integrity in and outside of the courtroom. Judges also remarked that they wished there were more opportunities to interact with young lawyers and would keep an eye out for future CMCP events. Such opportunities to interact closely with the judiciary are few and far between. This event was yet another visible reminder of how far we’ve truly come. Thanks again to Wells Fargo Bank and Locke Lord Bissell & Liddell for making this event possible! View Photo Slideshow of this Judges' Reception
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	CMCP Member Tapped for Top Department of Justice Position
	Coblentz, Patch, Duffy & Bass LLP Partner A. Marisa Chun has been appointed to serve as Deputy Associate Attorney General at the U.S. Department of Justice, starting May 1, 2009. Ms. Chun, who has practiced at the Coblentz firm for nearly a decade, brings civil litigation and leadership experience, in returning to the Justice Department, where she began her legal career. read more
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	CMCP Development Committee
	CMCP is forming a Development Committee, to be headed by Hyun Park, General Counsel of PG&E. The purpose of the committee is to develop, diversify and execute various revenue streams for the sustainability of the organization. If interested in this committee, please contact the CMCP office.
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	2009 CMCP Awards - Call for Nominations
	To recognize the organizations which capture the spirit of the CMCP mission, CMCP annually bestows three awards: The John Essex and Guy Rounsaville In-House Counsel Diversity Award; The Drucilla Stender Ramey Law Firm Award and the Minority-Owned Law Firm Client Service Award. These awards reflect CMCP’s long standing tradition of honoring those dedicated to the furtherance of CMCP’s mission. The awards will be presented at the Awards Luncheon during the 2009 CMCP Annual Conference. read more and submit your nominations
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	ACC SFBA's Career Development Committee Meeting: Can You Pass the Workplace "Stress-Test"?
	Strategies for Managing "People Styles" & Communication Hot-Buttons in this Unnerving Economy. Presented by the Association of Corporate Counsel San Francisco Bay Area Chapter. Friday June 12, 2009, Palo Alto, CA. read more
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	Former CMCP Board Member, Demetrius Shelton, Campaigns for National Bar Association Presidency
	Demetrius Shelton of Oakland is a candidate for President-Elect of the National Bar Association at the Annual N.B.A. Meeting. The election will be held on Tuesday, August 4, 2009.
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	NBA Soul Train: A California Amtrak car with Demetrius' supporters aboard has been reserved for the San Joaquin route on Saturday, August 1, 2009. The train originates in Oakland, picks up passengers on the way to its final destination: the 84th Annual NBA Convention! read more
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	GC California Magazine: Free Subscription and Discounts on Advertising for Members
	All CMCP members will now receive a free subscription to GC California Magazine and for minority-owned law firm members: advertising discounts Contact Paula Ryplewski
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	Expand Your Networking Capacity: Join CMCP's Online Networks
	CMCP's Online Communities allow you the opportunity to connect with members and colleagues read more

May/June
2009

May is Asian-Pacific
American Heritage Month

	Asian-Pacific American Heritage Month is a celebration of Asians and Pacific Islanders in the United States. A rather broad term, Asian-Pacific encompasses all of the Asian continent and the Pacific islands of Melanesia, Micronesia, and Polynesia. For more information Click Here. (from the Library of Congress, et al.)
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	June is Gay/Lesbian Pride Month
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	"This June, recognizing the joys and sorrows that the gay and lesbian movement has witnessed and the work that remains to be done, we observe Gay and Lesbian Pride Month and celebrate the progress we have made in creating a society more inclusive and accepting of gays and lesbians. I hope that in this new millennium we will continue to break down the walls of fear and prejudice and work to build a bridge to understanding and tolerance, until gays and lesbians are afforded the same rights and responsibilities as all Americans." -President William Jefferson Clinton, June 2, 2000

Notable Asian Pacific Attorneys

Jeff Adachi

Public Defender of San Francisco since 2002. He is the son of parents and grandparents who spent part of World War II in the Japanese American internment camps.

Edward Chen

First Asian Pacific American to serve on the Northern District of California when he was appointed as a Magistrate Judge in 2001. Prior to that, he was a civil rights attorney at the ACLU’s Northern California location. One of his notable cases was serving as counsel in the landmark case of Korematsu v. United States, 323 U.S. 214 (1944).

Ming Chin

Associate Justice of the California Supreme Court, appointed by Governor Pete Wilson in 1996, becoming the second Asian Pacific American, after Justice Joyce Kennard, to take a seat on California’s high court. Justice Chin was awarded a United States Army Commendation Medal and a Bronze Star for his service in the Vietnam War.

Kamala Harris

San Francisco District Attorney since 2003. Harris is of mixed Indian and African American descent and first Asian Pacific American and first female African American district attorney of a major city in the United States.

Crystal Eastman

Co-founder of the American Civil Liberties Union, drafted the first workers’ compensation law in New York, and was co-author of the first Equal Rights Amendment with Alice Paul.

Raymond L. Ocampo Jr.

President and Chief Executive Officer of Samurai Surfer LLC, a private consulting and investment company and serves on the boards of several private and public companies. He was Vice President and General Counsel for Oracle from 1986 to 1996 and co-founded and served as president of the Filipino Bar Association of Northern California.

Bill Lann Lee

Shareholder at Lewis, Feinberg, Lee, Renaker & Jackson, P.C. where he specializes in representing plaintiffs in employment discrimination and human rights class actions. Prior to the firm, he was a partner at Leiff, Cabraser, Heimann & Bernstein, and was the nation’s top civil rights prosecutor as Assistant Attorney General in the U.S. Department of Justice under the Clinton Administration.

Dale Minami

Partner in Minami Tamaki LLP. He was one of the founders of the Asian Law Caucus and lead counsel in Korematsu v. United States, a historic civil rights case overturning Fred Korematsu’s conviction for violating the internment order during World War II. Minami is a leader in the Asian Pacific American political community and received the ABA Thurgood Marshall Award in 2003.

Julie A. Su

Litigation Director at the Asian Pacific American Legal Center of Southern California (APALC), an affiliate of the Washington, D.C.-based Asian American Justice Center. Su was one of the leaders in fighting for the freedom of Thai garment workers who were enslaved for years in an apartment in El Monte, California and served as lead counsel in a federal lawsuit against garment manufacturers and retailers. Su was one of six leaders to appear in the Smithsonian National Museum on American History’s exhibit on sweatshops and is co-founder of Sweatshop Watch.

Notable LGBT Attorneys

Doreena Wong

Staff attorney at National Health Law Program (“NHeLP”), works to increase and improve access to quality health care on behalf of limited income people by providing legal analysis and representation, information, education, and policy advocacy. Wong is married to Jennifer C. Pizer (see below).

Jennifer C. Pizer

Senior Counsel and Marriage Project Director with Lambda Legal. Pizer has been a long time advocate for ending marriage discrimination against lesbian and gay couples. She served as co-counsel in marriage equality cases in Washington State and California, including the historic California Supreme Court case in In re Marriage Cases, where she was co-counsel for 15 same-sex couples and currently is co-counsel in Strauss v. Horton, the LGBT community’s challenge to Proposition 8.

Flor Bermudez

Youth in Out-of-Home Care Attorney for Lambda Legal, the oldest and largest national legal organization committed to achieving full recognition of the civil rights of LGBT people and people living with HIV. Prior to Lambda, she spent four years at Esperanza del Barrio as the founding executive director and staff attorney, focusing on criminal defense of Latina immigrant street vendors, community organizing, youth development, legal/political education, and general legal practice.

Julius Turman

Of counsel at Morgan Lewis. He was the first African American co-chair of the Alice B. Toklas LGBT Democratic Club in San Francisco and was a former board member of Bay Area Lawyers for Individual Freedom, the LGBT Bar Association in the bay area. In November 2007, he was co-chair of the Bar Association of San Francisco’s LGBT Issues Committee, a subcommittee of its Equality Committee, that unveiled its groundbreaking report on best practices in the hiring, retention and promotion of Lesbian, Gay, Bisexual, and Transgender employees.

Janson Wu

Staff attorney with Gay and Lesbian Advocates and Defenders to work on ending anti-LGBT discrimination, marriage equality and a number of issues. In January 2009, Wu spoke at a rally in Boston, Massachusetts about the federal government’s discrimination against same-sex couples. Prior to GLAD, he was an associate at Quinn Emanuel Urquhart Oliver & Hedges in San Francisco. He has also volunteered on an LBGT anti-violence hotline for the Lawyers Committee on Civil Rights and for the AIDS Legal Referral Panel.


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.	Hyun Park
.	Senior Vice President and General Counsel, PG&E Corporation
.	by Tulasi Hosain, Principal and Managing Attorney, The Business Advocate
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Hyun Park, General Counsel for PG&E, was born in Korea and migrated to the United States when he was eleven years old. He is responsible for overseeing all of the legal matters that concern PG&E. Despite his busy schedule with work and making time for his family, he has managed to stay involved with non-profit activities that are important to him.

Mr. Park studied to be an economist, but found the work was too theoretical and abstract. He felt that he could apply the analytical skills that he learned as an economics student to the law, which seemed to have more real-world applications. His economics background prepared him for issues dealing with competition and antitrust. When he began to practice law, he was involved with mergers and acquisitions, joint ventures, private equity, and other transactional law matters. Among his clients were energy clients, and he made the transition from outside to in-house counsel when one of his clients invited him to join their team.

Apart from CMCP, where he serves on the board, he is also involved with the San Francisco Food Bank. Both are causes about which Mr. Park feels a strong commitment. As Mr. Park pointed out about his involvement with the food bank, this is a cause which should be easy to support, since no one should have to go hungry. The food bank, among its many other programs, has a snack program for kids. He learned that for many kids in this program, their snack is the only meal of the day.

Whether or not you have children, most people can easily relate to the anguish that any parent would feel if they are unable to provide food or shelter for their child. The San Francisco Food Bank provides food for children and adults in San Francisco, who are having difficulty making ends meet.

His advice to those graduating in the current economic climate, or those finding that they are unemployed, is to not give up. He would advise people not to limit themselves to what they have traditionally done. While it may be difficult to believe, the economic climate will turn around. In the interim, gain skills that may be in greater demand as the economy picks up. Certain basic areas of the law will remain relatively recession-proof; these include areas such as litigation, wage and hour law, employment disputes, and certain regulatory work. Do what you find interesting, and remain flexible. Newer areas of the law would include clean-tech and climate change regulations.

When he was a young associate at Latham and Watkins, the firm had one of its first rounds of lay-offs. While he survived the lay-off process and was fortunate to keep his position at the firm, it did make him more thoughtful about his position and his finances. He had a family by then and wondered what he would have done if he were laid-off. As a result, he became more careful in his personal finances in order to ensure economic stability for his family, despite the swings in the economy.

As Hyun Park pointed out, the most important thing that you can do is to learn from your experiences – whether you are keeping your job or losing it. Do not get disheartened. Do not see yourself as a victim. Do not dwell on the losses. But do learn from all of the experiences that you have had.

For minorities, especially, it may be more important to stay focused on what needs to be accomplished. Your willpower and desire to succeed will get you somewhere. But you have to be in the game when the opportunity arrives.

One size will not fit everyone. Therefore, the approach that you take to address your particular situation needs to be tailored for your personality, strength and style. For many of his colleagues and friends, taking on the task of breaking stereotypes or fighting stereotypes suited their personality. But for others, the need and desire to fit into the organization was important for their temperament. Either way, organizations need people with diverse backgrounds, with all of their various personalities, particularly as we become a more diverse community. Some may believe it is good to have a wide network; Mr. Park believes it is equally important to know your area of the law well, be highly competent, and provide the best possible client service.

Asked how he envisions our future, Mr. Hyun Park felt that we could realistically reduce carbon from the transportation and utility sectors within a reasonable time. This included the increased use of electric and hybrid cars and the use of energy generated by carbon-neutral facilities. But in addition, he sees a dramatic shift in how people view energy and how we deal with carbon. All of these issues are related to climate change. If he were starting fresh, these would be the areas in which he would focus.

Mr. Park's hopeful perspective should be taken as encouragement to stay focused on achieving the goals that we set for ourselves, stay engaged in those matters that are important to us, and find the balance between our professional and personal lives.

Tulasi Hosain is Principal and Managing Attorney at The Business Advocate
tulasiesq@sbcglobal.net
415-331-0380

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	Increasing Opportunities for Lawyers of Color to Try Cases for Corporate Clients (Part I of II)
..	by Marcellus McRae, Partner, Gibson, Dunn & Crutcher LLP
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There is no doubt that diversity has become one of the most salient topics in the legal community. Nor is there any doubt that the need for demonstrable progress on this front still remains acute. As other topics on diversity have been written about, this article focuses on just one dimension where this need is particularly conspicuous; namely, the court room.

Some readers may ask – why is this a meaningful observation? The author would start with the premise that the legal profession should be transformative and not merely reflective of the larger society. Selection of trial counsel in all cases, but particularly in high-stakes, complex litigation, is perhaps the ultimate expression of trust and confidence in a lawyer’s ability to deliver results and to serve as an effective representative of the organization. As long as lawyers of color are not equally embraced in this manner, our profession will continue to have a color line for what many regard as the most challenging, rewarding cases. Apart from the intrinsic importance of realizing equal opportunity in this area, there are a number of other reasons why these opportunities must be afforded:

•	The intense and high-stakes nature of trials creates unique opportunities to form close relationships with clients and to obtain insights regarding their operations. These experiences often lead to repeat business;
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•	Trial work is a highly specialized area that can generate significant revenues and can provide important avenues for advancement within a law firm; and
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•	Advancement within a firm through business generation is often a route to greater influence over the firm’s management decisions including hiring, staffing and promotions.

Part one of this article identifies some of the common explanations that lawyers of color hear for not being retained as trial counsel. The second part of this article, which will be forthcoming in the July/August issue of the CMCP Newsletter, focuses on recommendations for providing lawyers of color greater access to these trial opportunities.

Common Explanations Lawyers of Color Hear for Not Being Retained as Trial Counsel:

A. We would be happy to work with all qualified lawyers but our hiring decisions are largely driven by personal relationships: This response is not surprising; however, in addressing the disparity of opportunities, it is merely the beginning of the analysis rather than the end. For the answer to the inevitable question, “what drives the creation and maintenance of personal relationships?” we often hear terms like “comfort level” and “referrals from friends and associates”. However, a meaningful analysis requires us to ask if these motivations are immune from the unconscious bias and divisions that permeate the larger society. Stated differently, are we willing to use our “personal relationships” as the benchmark for how we allocate professional opportunities when so many of us live highly segregated lives in terms of where and how we live, worship, and socialize outside the office? Hopefully the answer is no, and we will take broader and more inclusive steps to expand the talent pool in selecting trial counsel.

B. We didn’t know that you (and the others) existed: There are a number of avenues to identify highly qualified lawyers of color to serve as trial counsel including, but not limited to:

•	Asking law firms to bring their trial lawyers of color to “beauty contests” and meetings where the selection of trial counsel and related staffing decisions will be made;
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•	Consulting with the various diverse lawyer organizations such as the California Minority Counsel Program, the Minority Trial Lawyer Committee of the American Bar Association, the Minority Corporate Counsel Association, the National Bar Association, the Hispanic National Bar Association, and the National Asian Pacific American Bar Association and enlisting their help in identifying trial lawyers of color;
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•	Attending diverse lawyer events with the goal of identifying and meeting trial lawyers of color;
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•	Asking your existing counsel to refer trial lawyers of color as candidates for lead trial counsel or co-counsel positions – and if they claim that they are unable to do so, tell them to try harder. This will enable them to become partners in your diversity efforts.

C. We must make sure that our pursuit of diversity does not compromise our criteria for selecting counsel: Even today, some people believe that the cost of diversity is lowering standards and expectations. The supposition is so preposterous that it doesn’t merit further comment other than the obvious fact that, if there is any hope for progress in this area, organizations cannot afford to allow people with such unreconstructed views to have any influence over the selection of trial counsel.

D. We have never seen you in trial and are therefore not comfortable with selecting you for the engagement: While this may sound like a reasonable response at a certain level, it suffers from at least four problems:

•	First, this criterion may not be evenly applied. Specifically, for those who have given this explanation, can you truthfully say that you have applied it in each instance that you have selected counsel? Weren’t there in fact instances where you retained counsel based on referrals or other factors that did not include personal observation of their abilities?
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•	Second, even if you have applied this criterion equally, it is a sure fire way to perpetuate the status quo by continuing to select the people that you are already using (and without examining whether your initial selection of these lawyers was bias free and included even the slightest possibility of retaining a trial lawyer of color)
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•	Third, in addition to the trial lawyer of color, the other entity that suffers as a result of this mindset is the corporation seeking counsel because it is simply another way of saying that “we will never hire you because we will never give ourselves an opportunity to make an informed decision about your ability to serve us.” The sad reality is that these corporations are continually selecting from a fraction of the total talent pool and are missing out on opportunities to retain some truly gifted trial lawyers.
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•	Fourth, given the fact that most cases do not go to trial due to settlement or pre-trial disposition, and the remaining cases will often take several years before they proceed to trial, making direct observation of a candidate in an actual trial a component of the selection process reduces the chances of being retained to slim and none.

E. We could probably use you when we have some discrimination cases going to trial:The author does not wish to belittle or demean the need for competent trial counsel in all cases. The problem is when lawyers of color are “typecast” for cases that have an African-American, Latino, Native American or Asian-American component to the exclusion of opportunities to try cases that do not have racial or ethnic components. The fact that lawyers of color may have certain insights in race sensitive cases or credibility before juries with certain demographics simply means that they bring an ability to excel in this dimension as well as any other dimension. In short, their versatility should expand rather than contract their universe of opportunities.

The second part of this article focuses on recommendations for providing trial work to attorneys of color. However, due to the length of the original article, the second part of the article will be published in the July/August issue of CMCP’s Newsletter.

A similar article, "Racial Diversity at the Counsel Table" is concurrently published in the June issue of the California Lawyer magazine.

Marcellus McRae is a partner in the
Los Angeles office of Gibson, Dunn & Crutcher LLP
www.gibsondunn.com
(213) 229-7675

Recent Achievements in Marriage Equality and Overcoming Proposition 8

by Paul Henderson, Chief of Administration, San Francisco District Attorney’s Office

Through the leadership of San Francisco District Attorney Kamala Harris, our office is firmly committed to celebrating diversity and pursuing equality protection under the law for all people. To that end, we congratulate the people of Iowa, Vermont, and Maine in their realization of marriage equality for all. Whether by court order in interpreting the Iowa state constitution, a powerful and unanimous legislative enactment overriding the Vermont governor’s veto, or, for the first time in United States history, by a legislative enactment that received the governor’s signature and approval, these states have brought our nation closer to its promise of equality for all. For these achievements, we owe deep gratitude to determined and unrelenting civil rights advocates, as well as the every day families headed by same sex couples who have struggled against discrimination so that their children could inherit a fairer and more just world.

Elsewhere in New England, the Heartland, and our nation’s Capitol, progress continues on other fronts. New Hampshire has made significant gains on marriage equality, the District of Columbia has bravely positioned itself to accept same sex marriages performed elsewhere, and our Congress recently passed a comprehensive hate crimes bill that protects crime victims who are members of the lesbian, gay, bisexual, and transgender communities. Our President and the Congress will soon take up workplace non-discrimination protections, the Defense of Marriage Act, and the military’s exclusionary policy, “Don’t Ask, Don’t Tell”. The last few months have reinvigorated the promise of equality and prosperity that makes our nation so great.

Of course, the bittersweet reality for Californians is that while we watch and celebrate victories in our sister states, we must do so under the dark cloud of inequality cast upon our state’s constitution last November. Proposition 8 did more than merely restrict marriage in California to opposite sex couples. For the first time in the history of our nation, a fundamental civil right was stripped out of a constitution, singling out a minority for second-class status. The implications created by a simple majority’s ability to eradicate fundamental rights from unpopular minorities are grave and disturbing.

We thank our many allies, civil rights, labor, religious, and civic groups, who wrote amicus briefs advocating for the invalidation of Proposition 8 due to these implications. Meanwhile, 18,000 couples are faced with uncertainty about the validity of their marriages, and hundreds of thousands of lesbian, gay, bisexual, and transgender individuals within and outside California are still trying to recover from the painful injustice inflicted upon them.

But, no matter the immediate outcome, there is light shed; a light that shines rays of healing over our state’s divides, and gives hope that the forces of intolerance and discrimination will be relegated to a footnote in the history of our struggle for equality. Every indicator suggests that the struggle for marriage equality, as well as other civil rights issues affecting the lesbian, gay, bisexual, and transgender communities, like other past civil rights struggles, will be won. Dr. Martin Luther King, Jr. once said, “The arc of the moral universe is long but it bends toward justice.” This is the takeaway message. Progress is not made overnight, it takes time, and it must be won. Twenty years ago, few people could have imagined marriage equality as a reality anywhere – let’s not forget that anti-sodomy laws were still in many states’ criminal codes until 2003. But today, five states have made the fundamental right to marry a reality. Over the next several months and few short years, we may see marriage equality achieved in New York, New Jersey, New Hampshire and many other states; and hopefully we will see its return to California. The next generation is already poised to inherit a better world than its predecessors experienced. We firmly stand in solidarity with this movement for hope and equality, recognizing that justice is best served when every citizen is afforded the full protection of our laws. We wish you all the best as we join together to celebrate Gay and Lesbian Pride Month.

Paul Henderson is the Chief of Administration in the
San Francisco District Attorney's Office
www.sfdistrictattorney.org
(415) 553-1751

Diversity by Community Building

by David Tsai, Associate, Townsend and Townsend and Crew LLP, San Francisco

Being Asian-American and gay, and being a patent attorney, I see myself having to cross various racial, ethnic, sexual, and cultural boundaries, and depending on the circumstances or the community, I find myself navigating through the intersectionality of being a person of color and being a sexual minority. For Asian American Heritage Month in May and LGBT Pride Month in June, I am again reminded of the cross cultural identities to which some of us may belong.

Growing up, we were aware that we did not look like our neighbors, but my mother made sure that my sister and I felt like we were a part of our community that was predominantly white. Our mother would make amazing food -- fried rice, potstickers, almond cake -- and the neighborhood kids always would rush to our house after school anticipating the Taiwanese delicacies she had made for the day. Though we were different, my sister and I fit in and were popular because of our mother’s effort to reach across cultural differences and assimilate with others.

My mother’s efforts were especially important because I grew up at a time when there was outright animosity towards Asian-Americans in Michigan. The hatred stemmed from the unwelcomed competition of the newly emerging Japanese automotive industry which began to eliminate jobs and profits from the American automakers. My father, who worked for GM, never brought Taiwanese leftovers to work for fear of standing out and being different, even though he preferred my mother’s cooking over ham sandwiches. We tried our best to blend into our community in such volatile times.

However, my family’s attitude toward assimilation shifted after the death of Vincent Chin. Vincent was a young Chinese-American Ford assembly-line worker who was beaten to death with a baseball bat by two men, who were laid off from Ford and thought he was Japanese, a threat to their jobs. I remember watching my parents on national television as they marched on the streets of Detroit holding a large American flag and chanting, “Justice for Vincent Chin.” Justice never came for Vincent as the convicted perpetrators never served time in jail for his murder. Nevertheless, my parents remained outspoken in the Taiwanese-American community and inspired me to do the same. My parents no longer wanted us to simply blend in.

Throughout high school and college, I made it a point to be active in the Asian-American community, serving as the president of the Chinese student associations. When I came out after college, I made it a point to work with the lesbian, gay, bisexual, transgender (LGBT) communities. Like my mother, I wanted to bring together minority communities with the objective of creating greater acceptance and tolerance of all minorities.

Today, I make it a point to work on diversity in the legal profession. I am the Diversity Director of the Bar Association of San Francisco’s (BASF) Barristers Club and co-chair of San Francisco’s Minority Bar Coalition. I also serve on the board of Bay Area Lawyers for Individual Freedom (BALIF), San Francisco’s LGBT Bar. Although my practice is focused on intellectual property and a majority of my past educational and professional experience is in the biological and computer sciences, I devote my free time advocating for equal access for minorities. It is this drive that impassions my desire to practice law.

I am also fortunate to have the support of my firm, Townsend and Townsend and Crew LLP. Townsend supports my work on promoting diversity within and outside the firm. In addition, Townsend has allowed me to take on minority-related pro bono cases with the Lawyers Committee for Civil Rights and the Asian Law Caucus. This past January, I was also able to assist in the filing of an amicus brief on behalf of clergy and religious congregations in opposition to Proposition 8. Indeed, such commitment to diversity will ensure a better understanding of minorities and create the community my mother sought when I was a child.

David Tsai is an associate in the San Francisco office of Townsend and Townsend and Crew LLP
djtsai@townsend.com
(415) 576-0200

You’ve Been Served: Potential Liability for Companies Suing Anonymous Bloggers and Subpoenaing their Identities

by David G. Halm, Managing Shareholder, Pettit Kohn Ingrassia & Lutz, PC, Los Angeles; and Nicholas T. Hua, Attorney, Law Offices of Nicholas T. Hua, Beverly Hills, CA

You just started your job as an in-house counsel at a publicly traded company and got the following voicemail from your boss: “Someone who used to work here is posting on Yahoo that ‘I used to work for the company. They don’t know what they are doing. Their websites rarely worked. The content was so boring and stale that no one even noticed we existed. The production values sucked because the equipment was cheap and the majority of the production staff were interns... it was the most miserable, sleazy, cheap operation I have ever worked for….The production department bought studio equipment that couldn’t be used (because it was bought on the gray market somewhere and all the operating manuals are in FRENCH, for crying out loud. No one could read them!). During a shoot one day, the VP of programming stole a Razor scooter from the company who was marketing the toy (he has triplets and tried to steal three – how cheap is that?).’ Legal, what do we do?”

If you were the in-house lawyer at Ampex Corporation, you would have filed a libel suit against the anonymous poster. The company then would have been hit with a special motion to strike under California’s anti-SLAPP (strategic lawsuit against public participation) statute, Code of Civil Procedure section 425.16, and had to pay attorney’s fees since the company lost. The above facts are based on Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569.

On an anti-SLAPP motion, the Internet posting must be made in connection with a matter of public interest. Acts in furtherance of a person’s free speech or right to petition in connection with a “public interest” must fall into one of the four categories: “(1) any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public form in connection with an issue of public interest; [and] (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Code of Civil Procedure section 425.16(e). In examining whether the internet postings about corporate activities constitute an issue of public importance, the court in Ampex looked at “(1) whether the company is publicly traded; (2) the number of investors; and (3) whether the company has promoted itself by means of numerous press releases.” Ampex, supra, 128 Cal.App.4th at 1576; citing Global Telemedia Int’l, Inc. v. Doe 1 (C.D. Cal. 2001) 132 F. Supp. 2d 1261, 1265; ComputerXpress, Inc. v. Jackson (2001) 93 Cal. App. 4th 993, 1007-08.

In the wake of the economic downturn, recently laid off employees may desire to “sound off” against their former employers in cyberspace. Companies should be careful in analyzing whether a lawsuit arising out of anonymous criticism on Internet websites, chat rooms and message boards would face early dismissal if the court granted an anti-SLAPP motion to strike, especially since losing an anti-SLAPP motion warrants a mandatory award of fees.

If the in-house lawyer’s strategy is to subpoena Yahoo!, MySpace, Facebook or similar internet service companies to obtain the identity of the blogger or poster, California passed AB 2433 on September 30, 2008, amended Code of Civil Procedure section 1987.2, to award fees to the prevailing party on the motion to quash the subpoena.

Prior to the amendment, the prevailing party on a motion to quash a subpoena was entitled to an award of attorney’s fees only if the motion was made or opposed in bad faith or without substantial justification or a requirement of the subpoena was oppressive. Effective, January 1, 2009, section 1987.2(b) now requires the court to award reasonable attorney’s fees to a party who successfully moves to quash or modify a subpoena for personally identifying information for use in an out of state action if: (1) the subpoena has been served on an Internet service provider; (2) the underlying action arises from the moving party’s exercise of free speech rights on the Internet; and (3) the subpoenaing party has failed to make a prima facie showing of a cause of action. In this context, the prevailing party no longer needs to show bad faith, lack of substantial justification or the oppressive nature of the subpoena to recover attorney’s fees.

Prior to this amendment to the subpoena statute, a company could consider suing outside of California for defamation and issue a subpoena to uncover the identity of the anonymous poster. Now, a company or person subpoenaing identifying information from California Internet companies are subject to attorney’s fees awards if the subpoena is quashed or modified pursuant to a motion under 1987.1.

However, anonymous Internet posters do not necessarily have blanket protection under section 1987.2(b). Recent case law suggests that a poster’s identity must be completely anonymous to qualify for an attorney’s fees award under section 1987.2(b). In Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App.4th 1125, the court held that a person who posts an article on myspace.com could not state an invasion of privacy cause of action against a person who submitted that article to a newspaper for republication. The poster’s MySpace page mentioned her first name and included her photograph. Her identity therefore was not private, and in a cause of action especially sounding in disclosure of private facts, there was no cognizable cause of action.

The above considerations should cause the in-house lawyer in Ampex (or other companies) to pause and think twice about the ramifications of subpoenaing records from a California Internet company to discover the identity of an anonymous poster of critical statements on the Internet, or about filing a complaint in California that arises from the anonymous internet postings. Confronted with an attorney’s fees award to the party who successfully moves to quash the subpoena, the party seeking the subpoena should first carefully analyze whether the allegedly defamatory postings constitute an exercise of free speech rights on the Internet. If the company decides to file a defamation or invasion of privacy complaint in California for anonymous posting, the company should carefully analyze the issues arising under the anti-SLAPP statute, and weigh the legal as well as business decisions for pursuing such an action, if the lawsuit is not successful.

David G. Halm is the managing shareholder of the
Los Angeles office of Pettit Kohn Ingrassia & Lutz PC www.pettitkohn.com, (310) 417-1135.

Nicholas T. Hua is an attorney in the Law Offices of Nicholas T. Hua, www.nicholashualaw.com,
(310) 284-2620.

Diversity Pipeline: Western Region of National Black Law Students Association’s Academic Retreat

by Sunita Bali, Academic Retreat Coordinator for WRBLSA and 2L at USC Law School

On September 20, 2008, the Western Region of the National Black Law Students Association held its annual Academic Retreat at Southwestern Law School in Los Angeles, California. The event began with academic sessions for first, second, and third year law students. The 1L session was an exam writing workshop hosted by Professor Peter Wendel of Pepperdine University School of Law, and the 2L session was a round table discussion entitled "I finished my first year. Now what?" hosted by Professors Nyree Gray and Karen Smith of Southwestern School of Law. The 3L session, held by Elizabeth Belser of BarBri, was designed to give 3Ls an idea of how to begin planning for the bar exam. The Academic Retreat also included a sit-down luncheon, with the keynote address delivered by Theresa Cropper, the Director of Diversity and Professional Development at Perkins Coie, LLP. Ms. Cropper delivered an inspirational speech about ways in which law students seeking summer and permanent employment can weather the tough economic market, as well as other hot topics concerning future attorneys of color.

The second half of the day consisted of a career panel with distinguished guests such as Judge Judith C. Chirlin of the Los Angeles Superior Court, Gilbert Wright of the Los Angeles County District Attorney's Office, and Nicholas Hua, of Law Offices of Nicholas T. Hua, previously of Perkins Coie. Suma Mathai, who is the supervising family law attorney at the Los Angeles Center for Law and Justice, and Edward Ward of Gilbert Kelly Crowley & Jennett LLP also appeared on the career panel, along with Theresa Cropper, to help offer perspectives from various sectors of the legal profession. The Academic Retreat was extremely successful, attracting over 40 law students from across southern California.

The Academic Retreat represents one of the many steps law schools and the legal profession must take, among others, to work toward ensuring that the continuing pipelines of diverse attorneys remain open and constant. Special thanks to Perkins Coie LLP, who generously sponsored the Academic Retreat, Sunita Bali, the Academic Retreat Coordinator for WRBLSA, and all of the law students that helped make the event a success!

Sunita Bali is Academic Retreat Coordinator for the Western Region of National Black Law Students Association and 2L at University of Southern California Gould School of Law
sunita.bali.2010@lawmail.usc.edu

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