California Mediation and Arbitration

Ethics/Bias/Legislation: Mediator Phyllis Pollack Spoke About Implicit Bias To USDC Central District Mediators

And Provides Us With A Legislative Update . . . 

Molecule Man. Edward R. Roybal Federal Building.    

    Implicit bias is a hot topic that is, or should be, of concern to mediators, arbitrators, judges, attorneys, and clients. Mediator Phyllis Pollack, who also lectures about ADR ethics at the USC Gould School of Law, spoke to United States District Court panel mediators about implicit bias at the Edward R. Roybal Federal Building & US Courthouse in Los Angeles on January 9, 2020, Pres. Richard Nixon's 107th birthday.

Pollack defined implicit bias as:

• •  a preference for a group (positive or negative) often operating outside our awareness
  • based on stereotypes and attitudes we hold
  • tending to develop early in life and
  • tending to strengthen over time

    Pollack mentioned three legislative developments relevant to the subject of implicit bias:

        1. The California CROWN (Create a Respectful and Open Workplace for Natural Hair) Act (SB 188), approved by the Governor on July 3, 2019. The purpose of this law is to prevent discrimination based on hairstyle, based on the belief that hairstyle can be a proxy for race. The new law explains the Legislature's intent: "Acting in accordance with the constitutional values of fairness, equity, and opportunity for all, the Legislature recognizes that continuing to enforce a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them from some workplaces is in direct opposition to equity and opportunity for all."

 Erich Honecker receives Angela Davis displaying influential hairstyle (1972). Wikimedia Commons. Peter Koard, photographer. German Federal Archives.

        2. AB 242, approved by the Governor on October 2, 2019, will require implicit bias training for attorneys, as well as for all court staff who interact with the public. The new law will require attorneys to meet the requirements for each MCLE compliance period ending after January 31, 2023. 

        3. SB 41, approved by the Governor on July 30, 2019, will prohibit the estimation, measure, or calculation of past, present, or future damages for lost earnings or impaired earning capacity resulting from personal injury or wrongful death from being reduced based on race, ethnicity, or gender.

Arbitration, Construction Of Agreement, Employment, Enforceability: Court of Appeal Remands Case To Determine If Plaintiff Was Represented By Counsel When She Signed Arbitration Agreement

Language Of Arbitration Agreement Was Sufficient To Require Arbitration, But . . . .

    In Salgado v. Carrows Restaurants, Inc., B285756 (2/6  2/26/19) (Gilbert, Yegan, Tangeman), the trial court denied employer's motion to compel arbitration, on the grounds that "Defendants have failed to demonstrate that the arbitration agreement applies to a suit that was filed prior to its signature." However, the Court of Appeal reversed, concluding the language of the arbitration agreement, which covered claims "related in any way to my application for employment and/or employment" was broad enough to cover the prior dispute.

    However, the Court also remanded, to determine if the employer knew when the employee signed the arbitration agreement, that she was represented by counsel. Plaintiff's attorney stated his client was "forced to sign" at a time the lawsuit had already been filed, the employer's restaurant manager had been served with the lawsuit, and the attorney was representing his client in the lawsuit. 

    COMMENT. We will be interested to learn if, on remand, the facts provide a basis for making the arbitration agreement unenforceable. Unconscionability? Duress? And if Defendant's counsel knew of the lawsuit, we could see a problem if an end-run was done around Plaintiff's counsel, though ordinarily the parties can deal directly. 

    In the first paragraph, the opinion states, "[W]e remand to determine a factual issue where time is not relative, but relevant." That, plus knowing the opinion issued from the Ventura County Court of Appeal, was all the information I needed to know that the opinion was penned by Justice Gilbert, who knows how to turn a phrase.

 

Ethics, Miscellaneous: Fourth District, Div. 3 Opinion Affirms Judgment Denying Attorney's Fees And Refers Attorney To State Bar For Misconduct

Marc Alexander (This Blogger) And Mike Hensley Represented Defendants In Their Successful Response To This Appeal.

    Today* we stray from our usual beat, California mediation and arbitration, to mention an appeal resulting in a partially published opinion. Why? Because this blogger, Marc Alexander, was involved, and because his long-time colleague Mike Hensley, with whom Marc contributes to the California Attorney's Fees blog, also participated. The case is Martinez v. O’Hara, et al., G054840 (4^th Dist. Div. 3 February 28, 2019) (published in part). Justice Fybel, Acting. P.J., authored the opinion, joined by Justices Ikola and Thompson. In an unpublished part of the opinion, the case affirmed a judgment denying attorney's fees to the plaintiff/appellant. In the published part of the opinion, the panel referred plaintiff/appellant's attorney to the State Bar.

    The opinion was partially published to send a message: "The notice of appeal signed by Mr. Pavone on behalf of plaintiff referred to the ruling of the female judicial officer as ‘succubustic.’ A succubus is defined as a demon assuming female form which has sexual intercourse with men in their sleep. We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period." The Court was also unhappy that the attorney accused the judicial officer of intentionally not following the law, without evidence.

    The case has garnered some attention:

    1. Kevin Underhill, the author of the "Lowering the Bar" blog, has blogged about the case under the heading, "Succubustic": Is It a Word You Should Use to Describe a Judge?

    2. Debra Cassens Weiss, ABA Journal, Lawyer's 'succubustic' claim should be reported as gender bias to state bar, court concludes.

    3. Bloomberg Law, California Lawyer in Hot Water for Sexist Insult of Judge.

    4. Law360, Calif. Judges Slam Atty For Gender Remarks: Not OK, Period.

    5. Justia, Legal Ethics Opinions.

  6. Metropolitan News-Enterprise, Lawyer Who Likened Court Commission To Sex-Crazed She-Demon Is Chastised.

    7. David C. Carr, California Legal Ethics, Court of Appeal Cites Lawyer to State Bar for Referring to Female Judge as "Succubistic."

    8. Dane S. Ciolino, Louisiana Legal Ethics, Lawyer Sanctioned for Calling Trial Judge "Succubustic."

    9. Michael J. Simkin, Legal Secrets, Professionalism Trumps Freedom of speech in the courtroom (which is a good thing) Bus. Code section 6068(b).

    10. Heather Stern, Women Lawyers Association of Los Angeles, March 2019-President's Message.

    11. William Vogeler, Strategist, Protip: Don't Call a Judge a 'Succubus'.

    12. Edward McIntyre, Take Note -- Courts Have Dictionaries.

    13. 111 North Hill Street, Don't Do This.

    14. Brian I. Hamblet, Martinez v. Stratton O'Hara: What you say (to the Court of Appeal) can and will be used against you.

    15. California Attorney's Fees.

^{*_{This post has been updated since it originally appeared.}}