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S.F. LAWYER SAYS SHELLEY CONTRACTS WERE ABOVE-BOARD When the headlines began shining an unflattering spotlight on Secretary of State Kevin Shelley in August, the glare hit San Francisco lawyer Jonathan Holtzman, too. The Renne Sloan Holtzman & Sakai, Public Law Group, partner’s name has popped up in stories about Shelley’s spending of federal grant money. Holtzman was the unpaid treasurer for Shelley’s campaign, and his law firm got a contract to do work for the 2002 Help America Vote Act (HAVA). While Holtzman maintains that his work with Shelley was perfectly appropriate, the state auditor — and, reportedly, the federal Election Assistance Commission — are taking a closer look at HAVA contracts issued by the secretary of state. “There certainly are days that you wake up and you wonder, why am I doing this?” Holtzman said, adding that scrutiny comes with the territory in public-sector lawyering. Holtzman signed two contracts on behalf of his firm, according to documents obtained from Shelley’s office under a public records request. The first, in 2003, was for up to $124,000 to work on the gubernatorial recall election, as well as HAVA issues as needed. The second, a 13-month contract worth up to $70,000 at first but amended to a maximum $220,000 over the summer, was for the firm’s expertise with local government to help implement federal election requirements, particularly HAVA. State Auditor Elaine Howle said she couldn’t specify if the firm’s contracts would be scrutinized, but “if these contracts were funded with HAVA funds, there is the possibility we’ll be looking at them.” But as for what Holtzman, who billed the state $235 per hour, and his firm have been doing, heavily redacted invoices obtained from Shelley’s office under a public records request weren’t very informative . Of about $207,000 worth of bills submitted by mid-August, $125,000 was partly attributed to giving advice, another $90,000 was partly for drafting or editing, and other bills included some reference to reviewing articles. But the specifics of many of the tasks were blacked out. Tony Miller, a special counsel to the secretary of state speaking on behalf of Shelley’s office, says Shelley maintains that the firm’s primary HAVA contract — which was supposed to help the state replace punch card voting systems, among other voting improvements — was perfectly appropriate. So does Holtzman. He cites two reports he says he was in charge of putting together — one on an investigation of Diebold Election Systems Inc., the other on the March 2 primary election. The newspaper and journal articles that he reviewed reflected his efforts to keep up with developments around the country on touch-screen voting, he added. “What I was doing with touch-screen is the very core of what HAVA was about,” Holtzman said. One thing he isn’t doing anymore is volunteering as Shelley’s treasurer, a post he took on around January. Holtzman says he always intended to be an interim treasurer, but the turnover was more immediately prompted “when people started raising the issue.” “Before I agreed to do it, I checked and found out that it was not only legal, but common,” Holtzman said. “He is a business friend of mine. But I have to say that, sure, if I had to do it over again, would I do it? No.” Pam Smith LAWYER FUMING OVER CONTEMPT Allen Kent may have been held in contempt last month, but he’s not going to skulk away without putting up a fight. Two weeks ago, the 65-year-old Corte Madera lawyer petitioned the California Supreme Court to reconsider its decision to find him in contempt and fine him $250 for missing a February oral argument in Sacramento. And he wasn’t meek about it. In an 18-page petition, Kent’s attorney, San Francisco solo practitioner Philip Ryan, accuses the high court of holding his client to a new and unreasonable standard by saying he had a duty to notify the court that he wouldn’t appear for a case in which he wasn’t even the attorney of record. “Since Kent lacked the ability to appear for oral argument — an essential element for criminal contempt,” Ryan wrote in In re Aguilar, S099667, “the majority fashioned a new rule of law that an attorney whose employment has been terminated has a duty to notify all courts of his changed employment status and that he/she will not be appearing on behalf of his/her former employer — the attorney of record. “Obviously,” he continued, “no such unexpressed duty has ever been imposed on an attorney who is not the attorney of record.” Kent’s troubles began on Feb. 10 when neither he nor his boss, Aguilar & Sebastinelli partner Raul Aguilar, appeared for oral argument in a case stemming from Aguilar’s suit against his divorce lawyer. Kent had left the San Francisco firm five days before the argument, saying he had been constructively terminated when Aguilar drastically cut his pay. After months of briefing and arguments, the court on Sept. 23 held both in contempt, hitting Aguilar hardest with a $1,000 fine and ordering the State Bar to investigate him for further discipline. They found that Aguilar had repeatedly lied to the court. In petitioning for a rehearing, Ryan argued that Kent couldn’t have known he had a duty to notify the court that he wouldn’t appear because no such duty existed prior to the court’s ruling. “The majority has elevated a breach of etiquette,” he wrote, “to a violation of ethics for which penal sanctions have been imposed!” The Supreme Court rarely grants a rehearing, but Kent’s chances are upped by the fact that three of the justices said he shouldn’t have been held in contempt. He wasn’t the attorney of record, they said, and did nothing wrong. On Wednesday, the court took the unusual step of extending its time to decide to reconsider through Dec. 22. — Mike McKee UNPUBLISHED DECISIONS, IN ALL THEIR GLORY Nearly all the work put out by the Ninth Circuit U.S. Court of Appeals is now available for free on the Internet. The court recently began posting unpublished “memoranda” opinions along with the published decisions it has posted for several years. Previously, unpublished rulings were available only to Web surfers who subscribed to online legal research services. Of course, the unpublished opinions still cannot be cited by lawyers — except in certain narrowly defined circumstances. But they’re still of interest to many members of the public, the media and the parties themselves, who typically have to wait for copies of decisions to arrive via mail, said Ninth Circuit Clerk Cathy Catterson. So far, the new online operation has run smoothly, Catterson said. Although the site says the unpublished decisions will only be available for 30 days, several opinions on the site have already been up for well over a month. The only opinions not available over the Internet now are oral screening decisions, which Catterson said account for about a third of the court’s docket. In 2003, 84 percent of Ninth Circuit opinions were unpublished. The federal judiciary is currently studying a controversial rule change that would make all appellate decisions published. — Jeff Chorney

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