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S.F. JUDGES PREPARE FOR SOME NEW ASSIGNMENTS San Francisco Superior Court Judge Patrick Mahoney says he will probably be heading to the Youth Guidance Center next year to preside over juvenile matters. While it’s not yet official, Mahoney said he looks forward to his new job dealing with youthful offenders. The former chief trial attorney for ex-City Attorney Louise Renne is currently presiding over criminal matters at the Hall of Justice. Superior Court Judge Katherine Feinstein reportedly will be assigned to the Family Law Court. Feinstein will join Superior Court Judge Charlotte Woolard, who will become the presiding judge of the Family Law Court. Woolard succeeds incoming Superior Court Presiding Judge Donna Hitchens, who is credited with creating a unified system for family law matters that includes divorce, dependency, child custody and juvenile crime. Hitchens said all judges have been asked to list their judicial preferences for the coming year, but no firm assignments have been made. Outgoing PJ Ronald Quidachay said he would like to return to Law and Motion, where he served before taking on his current administrative job. In order to get his old gavel back, Quidachay would have to dislodge Superior Court Judge A. James Robertson, who is now one of two Law and Motion judges. The other is Superior Court Judge James McBride, who apparently will remain on the Law and Motion bench. — Dennis J. Opatrny PRIVATE SEARCHES It’s OK for Yahoo technicians to sift through e-mails in response to search warrants without having a police officer looking over their shoulders, the 8th Circuit Court of Appeals ruled. This means Yahoo Inc. and other Silicon Valley Web mail providers won’t be swarming with law enforcement officers trying to conduct search warrants in efforts to track down child pornographers and other crooks. The ruling springs from a Minnesota child porn investigation. A St. Paul detective, investigating a complaint from a mother who discovered someone was sending her son pornography over the Internet, faxed a search warrant to Yahoo ordering the search engine to send copies of e-mails. Yahoo responded, but defendant Dale Bach’s attorney challenged the search because law enforcement didn’t witness it, as required by federal statute. A trial judge agreed, suppressing evidence from Yahoo’s search. On appeal, Yahoo and the Net Coalition filed an amicus brief in the case, arguing against requiring law enforcement to birddog e-mail searches. The 8th Circuit concluded in U.S. v Bach, 02-1238, that conducting Web mail searches outside the presence of law enforcement didn’t pose any Fourth Amendment problems. While a federal statute could be a sticking point for federal law enforcement, the court said in this case it wasn’t a problem because a detective from the St. Paul Police Department obtained the search warrant. Police may have violated a state search statute, the court wrote, but that also didn’t pose a problem because U.S. v. Bach was a federal prosecution taking place in U.S. District Court. Though the court may have left open the possibility that federal law enforcement may need to physically observe searches, Congress recently fixed that loophole by changing the federal statute as part of the Department of Justice’s reauthorization bill, said Morrison & Foerster partner Jonathan Band. “What was particularly troublesome is you have two problems — the statute problem and the constitutional problem,” said Band, who authored the amicus brief. “We were able to fix both.” — Shannon Lafferty MY TURN. NO, YOUR TURN. Forget demand letters. Forget positional bargaining. Forget even calling yourself “opposing” counsel. That’s the emerging field of collaborative law, an alternative approach to divorce cases that emphasizes cooperation over litigation. It is already sanctioned by San Francisco Superior Court, and a quintet of family practitioners made the case for it at a Contra Costa County Bar Association CLE panel Nov. 22. Unlike the traditional “my client uber alles” approach, as San Francisco family lawyer Jennifer Jackson put it, a collaborative lawyer acts as one part of a team in a non-adversarial settlement process. For example, opposing counsel — or “ collaborative counterparts,” as they prefer to be known — meet before settlement conferences to decide together how best to present hot-button issues to their clients. To ensure that lawyers for both parties act in good faith, they stipulate that each will be disqualified should the case wind up in litigation. The stipulation, said Berkeley’s Eugene Seltzer, discourages the approach of, “Well, I’ll go to court if you don’t do what I say.” The collaborative approach is less expensive than traditional litigation and offers the best chance of preserving the family relationship — or, as San Rafael practitioner John McCall put it, sparing the children from choosing which parent can come to their weddings. The practitioners acknowledged that it’s difficult for longtime litigators to wrap their brains around the collaborative concept. Seltzer and McCall tried to set a good example when the two momentarily couldn’t decide who on the panel should speak first. “I always like to go first,” said Seltzer. “See, this is an example of collaborative law,” said McCall, acquiescing. “In fact,” added Seltzer, “I insist.” — Scott Graham

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