All posts by Karen Marshall

Last year, the California Supreme Court opened the floodgates to litigation by employees who claim that they have been misclassified as exempt workers when, in fact, they are non-exempt and entitled to overtime pay.  In Cortez v. Purolator Air Filtration Products Company (2000) 23 Cal.4th 163, the California Supreme Court declared that an employee who believes he has been improperly classified as exempt can bring an action on behalf of both himself and all other similarly situated employees under California’s Unfair Business Practices Act.  If successful, the employee and all other similarly situated employees will be entitled to overtime pay for the four-year period prior to the filing of the complaint, as well as to penalties and attorneys’ fees.

Since the Supreme Court’s decision, hundreds of lawsuits have been filed in California state courts in which current and former employees of California employers claim that they were improperly classified and, consequently, are entitled to overtime pay.  While most of those cases have settled before trial, one case against Farmers Insurance Exchange went to trial last July and resulted in an award to the former employees of $90 million, plus interest and attorneys’ fees.  Given the potential dollar amounts involved in these cases, it is anticipated that the use of these suits in California will continue to increase, subjecting you to potentially staggering liability if you are out of compliance with federal or state wage and hour laws.

Federal v. State Wage and Hour Laws
The Fair Labor Standards Act (“FLSA”) provides the framework for determining exemptions from overtime requirements under federal law.  To qualify as an exempt employee under the FLSA, an employee must meet a two-part test.  First, he must be paid on a salary basis.  Second, he must meet the duties test for executive, administrative, or professional employees as set forth in the FLSA.

For California employers, however, the FLSA does not generally provide a definitive answer as to whether an employee is exempt or non-exempt.  California state law imposes different requirements, which are generally more stringent than the federal standard.  Where state and federal law conflict, the employee is entitled to the standard that provides greater protection (or the standard that imposes a higher threshold for determining exempt status – generally California law).  Because the California test will generally be the test that employers should use to determine if their employees are exempt or non-exempt, the remainder of this article focuses on California’s wage and hour laws with respect to exemptions.

California Exemptions
Like federal law, California provides three basic types of exemptions:  executive, administrative and professional.  To apply for any of these exemptions, the employee in question must receive compensation of at least $2,166.66 per month or $26,000 per year.  In addition, the employee must be paid on a salary basis, meaning that the pay received by the employee must be a fixed sum from week to week and may not be subject to reduction because of variations in the quality or quantity of work performed.  An employee will not be considered to be paid on a “salary basis” if deductions are made for absences from work caused by the employer or the operating requirements of the business.  In addition, an exempt employee’s salary may not be reduced due to time missed for sickness or accident.  An employer may reduce an exempt employee’s salary because of the employee’s absences for personal reasons, so long as deductions are made in increments of full work days.

If an employee meets both of these requirements, she may be considered for exempt status using one of the following tests:

Executive Exemption
An executive employee is one who meets the salary test described above and, in addition, meets the following requirements:

•    The employee’s duties and responsibilities involve the management of the enterprise in which he is employed or of a customarily recognized department or subdivision of that enterprise;

•    The employee customarily and regularly directs the work of two or more other employees;

•    The employee has the authority to hire or fire other employees, or his suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of employees is given particular weight;

•    The employee customarily exercises discretionary powers; and

•    The employee is primarily engaged in the duties described above.
“Primarily engaged” means that more than one-half of the employee’s work time is spent performing the duties described above.

Administrative Exemption
An administrative employee is one who meets the salary test described above and, in addition, meets the follows requirements:
•    The employee’s duties and responsibilities involve either (1) the performance of office or non-manual work directly related to management policies or general business operations of the employer or the employer’s customers, or (2) the performance of functions in the administration of a school system or educational establishment or institution, or of a department or subdivision of those, in work directly related to the academic instruction or training carried on in the system, establishment or institution;

•    The employee customarily and regularly exercises discretion and independent judgment;

•    The employee (1) regularly and directly assists a proprietor or employee employed in a bona fide executive or administrative capacity, (2) performs specialized or technical work requiring special training, experience or knowledge under only general supervision, or (3) executes special assignments and tasks under only general supervision; and

•    The employee is primarily engaged in the above duties.

Professional Exemption

A professional employee is one who meets the salary test described above and, in addition, meets the following requirements:

•    The employee is licensed or certified by the State of California and is primarily engaged in the practice of one of the following recognized professions:  law, medicine, dentistry, optometry, architecture, engineering, teaching, or accounting; or

•    The employee is primarily engaged in an occupation commonly recognized as a learned or artistic profession; and

•    The employee customarily and regularly exercises discretion and independent judgment in the performance of her duties.
It is important to note that there are exceptions to these tests, including exceptions pertaining to pharmacists, registered nurses, and computer programmers.  It is also important to note that an employee’s job title, job description and employment contract are not determinative as to whether an employee is exempt.  Rather, a court will look at the actual job duties performed by the employee to make that determination.  In addition, it is of no consequence that others in your industry have classified their employees in a particular manner.  Many U.S. employers are out of compliance with wage and hour laws, particularly employers who do business in California.  In order to ensure compliance with California’s tough exemption requirements, you should periodically review your employees’ duties and their classifications to make sure that, in the unfortunate event that an employee brings a lawsuit against you, you can properly defend yourself.

Every employer must deal with a disgruntled employee at one time or another.  However, recent cases demonstrate that the manner in which you deal with these employees can leave you exposed to a variety of legal claims.  We will explore some of the issues which have recently made their way through the court system in the hope of alerting you to potential problem areas.

1. Your employee hires a lawyer to resolve a dispute with you.

In a recent case, an employee told her boss that she was pregnant.  Within a week after her announcement, she claimed that her hours and pay were reduced by half.  The employee retained a lawyer to write a letter to her employer, asserting that she was being discriminated against on the basis of her pregnancy in violation of the Fair Employment & Housing Act.  Within a week, the employee was fired.  She filed a lawsuit, claiming that her employer had retaliated against her, not because she was pregnant, but in retaliation for the letter sent by her lawyer.  The jury found in favor of the employee and the Court of Appeal affirmed the judgment, concluding that the employee’s actions in retaining a lawyer to negotiate with her employer on her behalf were protected by the Labor Code.
The lesson to be drawn here is that, once your employee hires a lawyer to negotiate a dispute with you, you must proceed with extreme caution.  Firing the employee for hiring a lawyer is illegal.

2. Your employee goes on extended workers’ compensation leave and expects you to continue paying his/her benefits indefinitely.

In this case, an employee went out on workers’ compensation leave after she hurt her back.  Her employer had a policy to cover employees’ health insurance benefits for the first 12 weeks of leave, citing the fact that employees are allowed 12 weeks of family leave under the Family Medical Leave Act.  When the 12 weeks was up, the employee was told that her health insurance premium was her responsibility.  The employee filed a complaint with the Workers’ Compensation Appeals Board, claiming that her employer’s actions constituted illegal discrimination against her because she was on leave for a work related injury.  The Workers’ Compensation Appeals Board agreed, finding that it is discriminatory to treat an employee who is injured on the job differently than one who is actively working.  The employer was ordered to pay the employee’s health premiums, plus a 50 percent increase in her weekly benefits up to a maximum of $10,000 as a penalty.

The moral of this story is that you may not treat an employee who is on leave for a work-related injury any differently than you treat an employee who is still on the job, unless you can justify it with a good business reason.  It must be noted that it is very difficult to use the business reason exception and that there is little guidance on what is considered a valid business reason and what is not.

3. Your employee testifies against you in a suit brought by another employee.

In this case, an employee gave deposition and trial testimony against his employer in a lawsuit filed by another employee.  Thereafter, his employment was terminated.  The employee brought a lawsuit, claiming that his termination was in retaliation for his testimony and violated public policy.  The Court of Appeal allowed the case to go forward, finding that there is a public policy embodied in the Labor Code which prohibits retaliation against an employee who has taken time off from work to appear in court as a witness.

This case is similar to earlier cases in which employees were allegedly terminated for testifying at an unemployment or workers’ compensation hearing.  In nearly every case of this type, the court has allowed the employee to proceed with his/her lawsuit, finding that the right to testify is protected by public policy and that an employee cannot be terminated for doing so.  Moreover, if you terminate an employee who has testified within a short period of time after the testimony, even if that termination is based upon a legitimate reason, the employee will likely be able to state a claim for retaliation by arguing that your legitimate reason for termination was a pretext.

The bottom line in each of these cases is that disgruntled employees should be handled carefully to avoid expensive litigation.

Effective October 1, 2000, California’s overtime requirements for veterinarians and certain employees who provide animal care will change yet again.  This article will outline the changes in the law, as well as the requirements for implementing those changes.  The new law affects not only overtime pay obligations, but also alternative work week schedules and meal periods.

APPLICABILITY OF AMENDMENTS TO WAGE ORDER 5
Wage Order 5 has now been expanded to provide special overtime provisions for workers in the health care industry, which has been defined to include licensed veterinarians, registered veterinary technicians and unregistered animal health technicians providing patient care.  However, these special overtime provisions do not extend to persons primarily engaged in providing meals, performing maintenance or cleaning services, or perform business office or other clerical functions in a veterinary office.  Those employees must still be paid according to California’s basic overtime requirements, which include time-and-a-half payment for all hours exceeding eight hours of work in one day, 40 hours of work in one week, and for the first eight hours on the seventh day of work in a single work week.  Double time compensation is required for regular employees for all hours worked in excess of 12 hours in one day and for all hours in excess of eight on the seventh day of work in a single work week.

 ADOPTING AN ALTERNATIVE WORK SCHEDULE
Before using the special overtime provisions in the new Wage Order, the employer must adopt a valid alternative work schedule.  The rules regarding adoption of such a schedule must be strictly followed, or the schedule will be null and void and you will be liable for overtime payments and penalties.  To adopt a valid alternative work schedule, you must do the following:

1. Submit a written proposal for an alternative work week schedule to all affected employees in the work unit.  The proposed alternative schedule must specify the number of days in the work week and the duration of the shift.  The actual days worked within the alternative schedule need not be specified, so long as the employer schedules the actual work days and the starting and ending time of the shift in advance of the work week and provides employees with reasonable notice of any changes.  Either a single work schedule or a menu of work schedule options, from which each employee in the work unit may choose, may be included in the proposal.
2. An alternative schedule may not exceed 12 hours of work in a day or 40 hours of work in a week.  Moreover, the schedule must provide for at least four hours of work in any shift.
3. The proposed alternative schedule must be adopted in a secret ballot election, before the performance of work, by at least a two-thirds vote of the affected employees in the work unit.  The election must be held during regular working hours at the employees’ work site.  A work unit may include a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision of any such work unit.  A work unit may consist of an individual employee as long as the criteria for an identifiable work unit is met.
4. Prior to the secret ballot vote, the employer must make a disclosure in writing to the affected employees which includes the effects of the proposed arrangement on the employee’s wages, hours and benefits.  Such disclosure shall include a meeting, duly noticed, held at least 14 days prior to voting, for the specific purpose of discussing the effects of the alternative schedule.  Failure to hold such a meeting or provide the written disclosure will make the election null and void.
5. The results of any election conducted to adopt an alternative schedule shall be reported by the employer to the Division of Labor Statistics and Research within 30 days after the results are final and the report of election results shall become a public document.  The report shall include the final tally of the vote, the size of the unit, and the nature of the business of the employer.
6. Employees affected by a change in work hours resulting from the adoption of an alternative schedule may not be required to work those new hours for at least 30 days after the announcement of the final results of the election.  An employer must make a reasonable effort to accommodate employees who are eligible to vote in the election and who cannot work the alternative schedule, as well as employees who cannot work the alternative schedule because of their religious beliefs.

NOTE:  An alternative schedule may be repealed by the affected employees.  Upon a petition of one-third of the affected employees, a new secret ballot election shall be held and a two-thirds vote of the affected employees is required to reverse the alternative work week schedule.  Such an election need not be held more than once every 12 months.

OVERTIME PAY OBLIGATIONS
Once an alternative work week is properly instituted, eligible employees working the alternative schedule may be paid overtime as follows:

1. An employee who works more than 12 hours in a work day shall be paid double time for all hours in excess of 12.
2. An employee who works in excess of 40 hours in a work week shall be paid at one-and-a-half times the employee’s regular rate of pay for all hours over 40 in a work week.
3. Time-and-a-half must be paid for all hours worked in excess of the alternative work week’s scheduled hours.
4.  Double time must be paid after eight hours of work in one day on a day when an employee is not regularly scheduled to work.

MEAL PERIODS
The new Wage Order also makes provisions for meal periods, allowing eligible employees who work shifts in excess of eight hours a day to waive the right to one of their two meal periods.  Those rules are as follows:

1.  A 30-minute meal period must be provided after five hours of work, unless the total hours of work for the day are not more than six hours, in which case the meal period may be waived by the mutual consent of the employee and the employer.
2. Unless an employee is relieved of all duty during the 30-minute meal period, the meal period shall be considered an “on duty” meal period and counted as time worked.  An “on duty” meal period is permitted only when the nature of the work prevents an employee from being relieved of all duty and when the employee and employer agree in writing to an on-the-job paid meal period.
3.  A second meal period must be provided after 10 hours of work, unless the employee’s total hours of work for the day are less than 12 hours, in which case the second meal period may be waived by the mutual consent of the employee and employer, but only if the first meal period was not waived.
4. Veterinarians, registered veterinary technicians and unregistered animal health technicians providing animal care who work shifts in excess of eight hours total in a work day may voluntarily waive their right to one of their two meal periods.  In order to be valid, such a waiver must be documented in a written agreement that is voluntarily signed by both the employee and the employer.  The employee may revoke the waiver at any time by providing the employer with at least one day’s written notice.  The employee shall be fully compensated for all working time, including an on-the-job meal period, while such a waiver is in effect.

Q & A:
Q:    What areas of employee relations will the new Wage Order affect?
A.    Alternative work week schedules, payment of overtime compensation to certain employees and meal periods.

Q:    When does the new Wage Order become effective?
A:    October 1, 2000.

Q:    Will the new Wage Order allow me to put all my employees on 12-hour shifts without payment of overtime?
A:    No.  Only veterinarians, registered veterinary technicians and unregistered animal health technicians providing animal care may adopt an alternative work week that provides for 12-hour shifts without the payment of overtime.  Other workers, such as clerical workers and workers who provide primarily services relating to feeding or cleaning cannot work 12-hour shifts without the payment of overtime.  Those employees must still be paid according to regular overtime rules, which require overtime payment for all hours worked in excess of eight hours in a day or 40 hours in a week.

The award selection process of the Sacramento County Bar Association typically follows one of three courses. The first involves consideration of many proposed nominees, rigorous evaluation and discussion, and ultimate selection. The second is precisely the opposite: no candidate comes to mind and the nominating committee must search actively for potential recipients. The final route, which presents itself much less frequently that the first two, is where one person is recommended by a multitude of distinct parties, the accomplishments of that individual stand out, and the choice is made by acclamation.

This year’s recipient of the Lawyer of the Year Award, Richard Hoffelt, falls clearly within the third category. His name was mentioned repeatedly both within and without the SCBA as the most deserving recipient of this Award, and his selection by a unanimous Bar Council followed effortlessly.

The Lawyer of the Year Award honors an SCBA member who, through the practice of law, has made Sacramento a better place to live and work. Past recipients include Virginia Mueller, Forrest Plant, Sr., and Joseph Coomes, Jr. The award is given for achievements during a single year or over the course of a lifetime.

Hoffelt’s selection is justified on both grounds. Hoffelt, the 1990 SCBA President, has served as a guiding force to the SCBA and legal community during his 42 years of association with the Sacramento law firm of Wilke, Fleury, Hoffelt, Gould & Birney. During his presidency, he conceived the idea of, and made possible, the creation of the successful Minority Hiring and Retention Program, by which minority law students and graduates are recruited by some of the leading law firms in Sacramento and trained to be successful lawyers and leaders in the community. This program continues to be a tangible source of inspiration for law students and a testament to the vision of Dick Hoffelt and the SCBA.

Hoffelt has been active in numerous other professional activities, having served as a founding member and early president of the Barristers Club, on the Executive Committee of the California Association of Local Bar Associations, and as delegate to numerous conventions of the State Bar. He is a member of the ABA’s Forum on Health Law, the ABA’s Construction Law Section and ADR Section, the National Health Lawyers Association, the California Society for Health Care Attorneys, and the SCBA’s Healthcare Law Section. Dick also served as the SCBA’s first representative and delegate to the American Bar Association’s House of Delegates, its policy-making body.

In addition to his lifetime of service to the SCBA and other professional organizations, Hoffelt’s efforts on behalf of charities and arts groups is legendary. 1997 marks the culmination of Dick’s charitable work as Chairman of the Board of Governors of the Shriners Hospitals of Northern California. In June, the Shriners dedicated the Sacramento Shriners Hospital, which provides free treatment for children throughout Northern California and the Western United States who are suffering from spinal cord injuries, acute burns, and orthopedic disabilities. The only conditions on admission are that the child must be under 18, the condition must be treatable, and the child’s family must be without means to pay for the child’s treatment.

The $79 million, 300,000 square foot state-of-the art hospital is located on the corner of Stockton Boulevard and X Street, across from UC Davis Medical Center. The Hospital is unique among Shriners Hospitals because it combines the three separate specialties of other Shriners hospitals in one setting which, together with its advanced facilities, makes it the nationwide leader in the Shriners hospital system.

According to Margaret Bryan-Williams, Administrator of the Sacramento Shriners Hospital, the decision to locate the hospital here has worked out “wonderfully,” based on the proximity of the “outstanding medical center” of UC Davis and the presence of the “pre-eminent orthopedic and burn surgeons to whom health care providers in the area can turn for advice and counsel for the care of complex cases in their specialties. Clearly, when you can deliver pediatric specialty services at no charge, it’s a wonderful addition to the region’s health care system.”

Hoffelt’s charitable work is balanced by his attention to his active law practice and service as an arbitrator/mediator. Hoffelt has served at various times over the last 20 years as judge pro tempore and arbitrator for the Superior Courts of Sacramento, El Dorado, Solano, Yuba, Amador and Calaveras counties. Dick also serves as an arbitrator for diverse organizations too numerous to recount here.

Hoffelt is a third generation Sacramentan. He and his wife of 42 years, Elie, have four children and eight grandchildren. Hoffelt received a bachelor of science degree in business administration at the U.C. Berkeley’s School of Business in 1952, and was awarded his juris doctorate from Boalt Hall School of Law at U.C. Berkeley in 1955.

After passing the bar examination that year, Hoffelt began his long and distinguished practice at the well-respected firm now known as Wilke, Fleury, Hoffelt, Gould & Birney, which is celebrating its 75th Anniversary this year. The firm was founded in January 1922 by Jay L. Henry and Grover Bedeau. Initially known, not suprisingly, as Henry & Bedeau, its first offices were located in the historic Capital National Bank Building at Capital and I. In 1949, Governor Earl Warren appointed Bedeau to the Sacramento County Superior Court, and Henry was appointed to the same court soon thereafter.

Sherman Wilke and the late Gordon Fleury became partners and renamed the firm Wilke & Fleury rather than trade on the name of the former partners. The firm continued its emphasis on general practice until 1970, when the partners decided that the firm should increase its focus on health care law and complex litigation, with an emphasis on medical malpractice defense. The firm has continued to expand its areas of specialization and its corps of lawyers to its present status as one of the ten largest firms in the city.

Although he has focused on healthcare law, Hoffelt has established expertise in all areas of the general practice of law, including corporate, business and business entities; commercial; real estate and leasing; employment and construction law transactional matters and litigation; administrative law; and probate; estate and trust planning, administration and litigation.

He has participated in several significant appellate decisions, including Morris v. Williams (1967) 67 Cal.2d 733 and California Association of Nursing Homes v. Williams (1970) 4 Cal.App.3d 800. In the first case, the Supreme Court relied on Hoffelt’s arguments to invalidate an administrative regulation which had cut Medi-Cal benefits by ten percent. In the second, the Third District Court of Appeal upheld Hoffelt’s due process challenge to administrative regulations regarding reimbursement to providers of Medi-Cal services.

Hoffelt is justifiably proud of his appellate work, of which he says: “My greatest personal accomplishment is one which can be proclaimed by any practicing attorney: ‘To be an attorney engaged in a system of justice which bestows upon the legal profession a major role in saying what the law is.’ From the lawyer’s point of view, this is the essence of Marbury v. Madison. During the early years of the MediCal Program in California, I represented many clients in a number of significant cases in which my arguments were persuasive to the courts in interpretations of the law in new and innovative ways. Being an advocate in the formulation of the ratio decidendi in this way truly is a lawyer’s greatest reward, as well as accomplishment.”

The cases cited above establish that Hoffelt is held in high esteem by the courts. This fact is confirmed by the knowledge that he is often asked to speak on behalf of newly-nominated or appointed judges.

One such judge is William Shubb, who asked Hoffelt to speak at his investiture. Upon learning of the Award, Judge Shubb remarked: “Dick is an old-fashioned kind of lawyer whose accomplishments include not only what he’s done as a lawyer but also what he’s done for the community. He has blended the highest professionalism with his charitable efforts. Excellent choice.”

George Nicholson, an associate justice with the Third District Court of Appeal, asked Hoffelt to speak at his confirmation hearing. He echoes the views of Judge Shubb: “Dick Hoffelt is very deserving of this award because he is a fine lawyer. He’s also a true gentleman who has a smile for everyone. The Sacramento Bar Association is known for its outstanding presidents. Dick is among the best of them.”

Tom Cecil, Presiding Judge of the Sacramento Superior and Municipal Courts, could not recall whether he asked Dick to speak on his behalf, “but many years ago, at a party at Dick’s home, where my infant son was a bit loud, I did permit him to demonstrate the proper technique for feeding a baby with a bottle. Seriously, though, it was leaders like Dick who set an example for me while I was in law school at McGeorge, and he inspired me to stick with it. The Award is well-deserved, and on behalf of the Sacramento trial judges, it is my pleasure to extend my heartfelt congratulations.” So says one, so say they all.

Accumulated wisdom is perhaps our greatest but least used treasure. We can find it in the senior members of our profession, who posses a wealth of knowledge. In a fast-paced, present-oriented society, the profession as a whole loses when we fail to take advantage of their insight and guidance. This lesson takes on added meaning when one sits down to talk to Sherman C. Wilke, one this area’s most seasoned veterans.

Wilke began practice in Sacramento in 1937 after graduating from Hastings. He was one of five attorneys admitted to practice in Sacramento that year. Others included Frank Bottaro, Albert Mundt and William White. Bottaro is still in Sacramento and both Mundt and White later served with distinction as Superior Court judges. Wilke was one of several Sacramentan’s who were beneficiaries of a scholarship fund administered by Judge Shields. After graduation he returned to Sacramento and worked for Judge Shields as an unpaid law clerk while looking for a job.

Finding a job was difficult at that time. The Depression was still on and, recalls Wilke, “there were no relatives in my family who were lawyers…I didn’t even know any lawyers and I was concerned about how I could get a job.” Upon Judge Shields’ recommendation, he entered into an association with Sacramento attorney Ralph Lewis, father of noted family lawyer, Jerome Lewis of Lewis & Zilaff. His salary was $75 per month plus whatever he earned from his own business, which was nothing. Lewis was an excellent teacher. “He was a sharp lawyer and I think that I was very, very lucky to have him hire me,” Wilke said.

Lewis was a meticulous pleader and insisted that Wilke also become one as well. At the end of the first year, Lewis gave him a raise to $100 per month. Their relationship continued until World War II when Wilke “saw the handwriting on the wall” and was drafted under the Volunteer Officers Candidate Program.

After the completion of the training he was sent to Noumea, New Caledonia, a French colony, in the South Pacific. One or two months later, at the tail end of the Munda campaign in the central Solomon Islands he was stationed in the G-2 unit of the Headquarters Company on the Munda Island. After 18 months in the South Pacific, Wilke entered a JAG officer-training program at the University of Michigan in Ann Arbor. During his four months there he was only able to see his wife, Betty, for two weekends. He still found it to be marked improvement upon the Solomons.

Graduating first in his class, he was commissioned as a first lieutenant and was assigned to Ft. Douglas in Utah, where he remained until the end of the war. Upon the arrival, he was delighted to learn that the commanding officer was Sacramento attorney Albert Sheets, whom he had known well in Sacramento. While at Ft. Douglas, Wilke was joined by his wife and son, Jim. Upon his return to Sacramento, Wilke resumed his association with Ralph Lewis. After several years Grover Bedeau, a frequent opponent, offered him an association with the firm of Henry & Bedeau.

Wilke began with Henry & Bedeau by occupying a chair in the library at their office in the Capitol National Bank building at 7th & J streets. He received one-third of the fees collected from any of the cases in which he worked and could keep all the fees from any of his own clients. Unfortunately, few of Wilke’s clients paid. He recalls that both Henry or Bedeau would call him into their offices and tell him that they were giving him one of their clients, whom he could count as his own. Wilke also was told not to tell the other partner that the client had come from the referring partner. This largess allowed Wilke to survive financially in the early years. In the late 1940’s, Bedeau was appointed as a judge and Henry bought out his practice. Soon after, Henry was also appointed to the bench and offered to sell his practice to Wilke if he could find a suitable partner. Henry told him that he needed a personable partner who would balance the personalities and abilities of the two members of the new partnership. Upon Henry’s recommendation, Wilke approached Gordon A. Fleury, who was two years younger and who had worked in the District Attorney’s office and in Nelson French’s law office. They then founded the law firm Wilke & Fleury.

Although Wilke is now 79, he keeps a busy schedule. He still sees clients and works almost every day on a reduced schedule. He remains a zealous golfer and fisherman. Wilke also continues a routine of two annual month long vacations and annual fishing trips to Sierra City and the Klamath River. He also enjoys activities with the families of his son, Jim, and daughters Chris and Jean. Over the course of his career, Wilke has known many well-known Sacramento attorneys. He was a childhood friend of Jack Downey and they learned to play tennis together from their fifth grade teacher at David Lubin School. Judge William White was the best man in his wedding. Grover Bedeau and Wilke occasionally fished with Otto Rohwer at South Lake Tahoe for Mackinaw trout. Wilke met Paul Peek, former Speaker of the Assembly, Secretary of State, Justice of the Third District Court of Appeal and Associate Justice of the California Supreme Court, when both had sons in the Boy Scouts. Upon Peek’s retirement from the court, he practiced with Wilke at Wilke & Fleury. In the later years Wilke did battle with legendary Sacramento trial attorney, David Rust.

Wilke has seen many significant changes in the practice of law in Sacramento since he started in 1937. The experience of starting as a new attorney is much different now. Not only are there many more attorneys in town, but employment arrangements have changed dramatically. The size of the firms was much smaller. “Downey, Brand & Seymour was probably the biggest law firm, along with Deipenbrock. Those were the two big firms that were here when I started practicing.” “They each had about five lawyers,” Wilke recalls. Salaried associates were not common. Most attorneys started practice with office-sharing arrangements with one or two more experienced attorneys. The nature of the practice was also quite different, Wilke said. Offices were routinely open to the public and fully staffed from 8 a.m. to 6:30 or 7 p.m., and were fully staffed on Saturdays until 3 or 4 p.m. There was also no established public defender program. Instead, all of the new attorneys served on a panel for two or three years and handled indigent criminal defense cases. Payments were to be obtained by taking promissory notes from the clients, but few ever collected on them.

The system did have some benefit for new lawyers. According to Wilke, “You learned how to try a jury case. I would be assigned four or five of these a month. I would probably try a half dozen cases a year. It was good experience, but you didn’t make any money.”

Relations between attorneys have also changed, according to Wilke, He does not pretend that personal relationships among attorneys were always idyllic, but believes that there has been an erosion of trust. Until the last 20 or 30 years there was very little formal discovery in most cases. Instead attorneys would call or visit each other about a week or so before trial to discuss the insurance limit and the nature of each other’s cases. Most attorneys were candid in this exchange and, until about 20 years ago, most attorneys concluded their agreements by handshake rather than by confirming letter, said Wilke.

Wilke notes that he has also seen a significant change in client relations. Clients were generally much less adapt to switch attorneys until the mid-to-late 1960’s. Wilke observes: “I don’t feel that it is not as much fun to be a lawyer as it was 25 years ago. Today you have to watch over your shoulder because some of your clients think, in the back of their minds, about the possibility of suing you for malpractice if you don’t please them. We don’t worry about people that we have known for 25 or 30 years-it’s the new ones. You don’t have to treat them differently than you used to. You have to think about your own rear end. That makes lawyering today not as satisfying as it used to be. I’m sure the doctors feel the same way.”

The attorney-client trust was also reflected in billing practices. The common format was a simple statement with the notation “For Services Rendered” and a dollar amount. Hourly billings were the exception. Lawyers billed most files by reference to the value of the result to the client. In short, if you don’t do much to help the client, you didn’t bill very much. If your result was very beneficial you would build in a bonus.

Wilke believes that the change in billing practices has further eroded attorney-client relations. “I think the clients now feel, and I think with some justice, that all lawyers care about is to keep track of their hours and they don’t give a damn whether they win or lose,” Wilke said.

Wilke is pleased to see a trend beginning towards a return to the value-based system. “I feel that the clients don’t like the time billing anymore. I think there is a trend in the other direction. (S)ome of the insurance companies who thought that system of time slips was great have learned that it is not all that great,” Wilke said.

Despite these changes, Wilke still sees many universals that apply as well today as they did 56 years ago when he began practice. Mr. Lewis’ lesson of precision in pleading, and consequently knowing your case well when you begin, still applies. Wilke also believes that when you get a new case, you should generate client confidence by doing something tangible right away. “Don’t sit around and do nothing,” Wilke said. “Do something even if it’s wrong.” That’s a little bit of philosophy I learned from Ralph Lewis.”

Finally, Wilke believes that you should nurture that confidence by regularly communicating with the client. “Keep them aware by copying them with letters and things that you send out,” suggests Wilke. “It keeps them abreast and they can see exactly what you are doing. Don’t wait for six months to tell your client the status.”

These lessons are timeless. Many more are available to us if we only take advantage of our resources and continue to learn from the senior members of our profession.