TM
JAN/FEB 2017
2017 President
Loren
Freestone
Prepares
for Action
PLUS
New Year, New Rules of Professional Conduct? Why Work on Wellness
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CONTENTS
Page
Page
Page
19
25
45
Departments
Features 19
The Adventure Begins 2017 SDCBA President Loren Freestone is ready for action. By Ray Huard
33
7
Members Entering the New Year The SDCBA coming into 2017.
Why I Belong Get to know your colleague Jon Schimmer.
34
Deans Exploring a broader definition of practicing “at our best.”
High School Mock Trial: Experience For a Lifetime Student participants on how the mock trial competition helped pave their legal career path.
Why Wellness? You only get one body.
29
27
Legal Aid Society of San Diego The journey toward justice begins here.
By Gregory Knoll and Sara Raffer Lee
9
37
Avoiding Burnout How local lawyers keep their minds and bodies healthy. By Joshua Bonnici
By Daniel Eaton and Heather Rosing
What Are You Looking At? Interesting office views from San Diego.
11
Technology 2017: The year for encryption. By Bill Kammer
Follow San Diego Lawyer! sandiegolawyermagazine
By Niels Schaumann
By Russell Rawlings
By Todd Haas
New Year, Possible New Rules 2017 will likely bring new rules of professional conduct in California.
Tips 7 do's and don'ts when asking for letters of recommendation. By Christine Pangan
9
25
17
@SDLmagazine
13
Ethics Don't step out of bounds if practicing out of state. By Edward McIntyre
40
Distinctions & Passings
43
San Diego County Bar Foundation $100,000 in grants assist 12 local nonprofits.
45
Photo Gallery Celebrations with friends and colleagues year-end.
Issue no. 1. San Diego Lawyer™ (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is 619-231-0781. The price of an annual subscription to members of the San Diego County Bar Association ($10) is included in their dues. Annual subscriptions to all others, $50. Single-copy price, $10. Periodicals postage paid at San Diego, CA and additional mailing offices. POSTMASTER: Send address changes to San Diego Lawyer, 401 West A Street, Suite 1100, San Diego, CA 92101. Copyright © 2017 by the San Diego County Bar Association. All rights r eserved. Opinions expressed in San Diego Lawyer are those of the author only and are not opinions of the SDCBA or the San Diego Lawyer Editorial Board.
4 SAN DIEGO LAWYER January/February 2017
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WHY I BELONG
Jon Schimmer
THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION
Procopio, Cory, Hargreaves & Savitch, LLP Education: Pepperdine University, B.S.; University of San Diego School of Law, J.D., LL.M. (Tax)
Co-Editors
Areas of practice: Tax, Trust & Estates, Nonprofit, Corporate, International
Edward McIntyre Christine Pangan
Editorial Board Michael Hernandez Stephanie Karnavas Erik Nelson David Seto Whitney Skala Christopher Todd Teresa Warren
Craig Benner Elizabeth Blust Josh Bonnici Jeremy Evans Victoria Fuller Renée Galente Todd Haas
Cartoonist
George Brewster Jr.
SAN DIEGO COUNTY BAR ASSOCIATION
Executive Director & Chief Executive Officer
Proudest career moment: One career moment that particularly stands out involved a pro bono tax case in which I represented an elderly, indigent client who faced the specter of IRS levies of her accounts and income, and the loss of her residence through foreclosure of a tax lien. The unfortunate irony was that the client’s tax problems were attributable to the misconduct of the client’s son. Due to the IRS threats and the stress of potentially losing everything she had, the client’s health and well-being had noticeably deteriorated. We were able to negotiate a resolution of the case in a manner that allowed the client to retain her residence and retain sufficient assets and income so she could maintain her standard of living. The level of gratitude the client expressed was very humbling. Family: My wife, Alisa Le, and our first child expected June 2017; mother, Victoria Scholle; sister and brother-in-law, Lexanne Fox and David Fox; and niece and nephew, Victoria Brown and Alex Brown. Birthplace: Concord, CA Current area of residence: Pacific Beach
Ellen Miller-Sharp
Director of Outreach Strategy & Chief Communications Officer Karen Korr
Graphic Designer/Webmaster Attiba Royster
If I weren’t an attorney, I’d be a marine biologist working to improve the conditions of our oceans and wildlife. The best thing about being an attorney is having the knowledge and experience to be able to help people in a variety of situations, and having people look to you as a trusted adviser. Favorite website: A tie between surfline.com and chargers.com.
Publications Editor
Hobbies: Surfing, snowboarding, fishing, diving, tennis, soccer and golf. I try to get my exercise by doing all the fun activities I enjoy.
Jenna Little
Favorite book: Moby-Dick by Herman Melville
Follow San Diego Lawyer! sandiegolawyermagazine
@SDLmagazine
401 West A Street, Suite 1100, San Diego, CA 92101 Phone (619) 231-0781 bar@sdcba.org Fax (619) 338-0042 www.sdcba.org Interested contributors may submit article ideas to the editors at www.sdcba.org/SDLidea. Unsolicited articles will not be printed in San Diego Lawyer™. San Diego Lawyer™ reserves the right to edit all submissions, contributed articles and photographs at its sole discretion. The opinions expressed by the authors and editors in San Diego Lawyer™ magazine do not necessarily reflect an official position of the San Diego County Bar Association.
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Favorite food: My mom’s pork chops and gravy. She would make it for me on my birthday, and now my wife does, too. Most memorable SDCBA moment: Some of my fondest and most memorable moments are from when I was co-chair of the SDCBA Tax Section. I really enjoyed coordinating the speakers for the events, and networking and receiving positive feedback from the members in attendance. Do you have a mentor? George Damoose was my mentor when I was a junior associate. He had a drafting table in his office, and we would stand shoulder to shoulder at that table and go through every word of my memos together. He took time with me and taught me a lot about practicing tax law. What would you most like to be known for? From a professional standpoint, I would like to be known for being a capable and ethical tax lawyer who also gave back to the community. From a personal standpoint, I would like to be known for being a dedicated and selfless husband, father, son and brother, who brought smiles to people’s faces. What makes San Diego’s bar so special/unique? For one, the SDCBA staff and Section chairs do a fantastic job of putting on valuable programs and events, as well as providing avenues for networking and community service. The bar is also special because the members make themselves available to each other and are willing to share ideas and experiences on a variety of topics. In my experience, I have seen a high level of collegiality and spirit of working together for the collective good. January/February 2017 SAN DIEGO LAWYER 7
BY NIELS SCHAUMANN DEANS
D
Being Well and At Your Best Exploring a broader definition of practicing ‘at our best’
T
he oath we all take upon passing the bar includes a phrase worth re-examining:
I solemnly swear that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability. As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity. What do we mean by ‘the best of my knowledge and ability?’ And is there room for a slightly broader definition? Jeena Cho, lawyer and author of The Anxious Lawyer, posed a question in the October 16,2016 issue of Forbes magazine. She asked, “As a client, don’t you want a professional that is well, in every sense of the word?” Her inference was clear. If we are not tending to our individual wellness, how can we be at our best? She goes on to ask, “Do you really want a lawyer full of dread, exhausted, looking to the bottom of a glass of whiskey for answers?”
Niels Schaumann By now, many of us realize how the pressures of our chosen field can exact a personal toll—especially if unchecked. We spend so much time honing our skills for practice that too many of us fail to practice what is good and necessary for us to be at our best. For some it is meditation or yoga. For others it may be music, birding, surfing or hiking. Whatever it is, it is essential to our well-being and, I might argue, to the faithful discharge of our duties. As a drummer and former member of a New York City rock band, my practice is to grab some sticks and bang on the drums. I am at my best when I make even the
“If we are not tending to our individual wellness, how can we be at our best?” smallest amount of time for this activity. It clears my head and, frankly, just makes me feel better. What’s your practice? Email me at nschaumann@cwsl.edu and let me know. Niels Schaumann is President and Dean of California Western School of Law.
See more articles on wellness for attorneys on pages 34 and 37.
What Are You Looking At?
We want to see what's outside of your office window! Check out the view from the Law Office of Christopher Workman, APC (@workmanlaw). Thanks for sharing! Post a picture on social media with the hashtag #sdlaw or email it to bar@sdcba.org—you could appear in an upcoming issue of San Diego Lawyer.
January/February 2017 SAN DIEGO LAWYER 9
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BY BILL KAMMER TECHNOLOGY
T
2017: The Year for Encryption Add another necessary layer of protection this year — encryption e know that we owe our clients a duty of confidentiality, and we also want to ensure the confidentiality of the details of our practices and our finances. But the duty we owe to our clients goes far beyond the principles of the attorney-client privilege. The State Bar Act codifies our duty of confidentiality by telling us we must “maintain inviolate the confidence, and at every peril to himself or herself, […] preserve the secrets of his or her client.” Cases and opinions teach us that the Act requires diligent protection broader than that of the privilege.
W
About ten years ago, the various ethics committees began their efforts to apply these confidentiality principles to the modern methods of communication and technology that were impacting and altering our law practices. California addressed electronic methods of communications in 2010, and, more recently in 2015, our duties of technology competence.
inevitability, we must establish a second defense layer that prevents the intruder from obtaining unauthorized or inadvertent disclosure of or access to client confidential information. Erecting firewalls and posting cybersecurity checkpoints has become insufficient protection. Encrypting the contents of the information that lawyers hold should be the new confidentiality requirement going forward into 2017.
“No matter the technology firewalls and boundaries, human error will still account for 8090% of successful intrusions.”
We must be aware of the cybersecurity risks faced by lawyers and their firms. Recent headlines reported the indictment of Chinese hackers who had penetrated the electronic systems of several prominent law firms (Cravath; Weil Gotshal) to obtain information that allowed them to take financial advantage of pending transactions. A recent American Bar Association report found that 90% of their IT respondents reported that their organizations had experienced a breach of document security in a particular year. Preventing the invasion of our electronic systems will continue to be a problem because, no matter the technology firewalls and boundaries, human error will still account for 80-90% of successful intrusions. Walt Kelly’s comic character Pogo used to say, “We have met the enemy and he is us.” Because of that
Encryption converts information and data into forms unreadable by anyone other than an intended recipient or an authorized individual. Encryption is not a new technique; some historians recite a first use by an Egyptian scribe around 1900 BC. Cryptanalysis dates back about 100 years, and the military has used complex encryption for the past 75 years.
Most of us know of the need to protect communications in transit and when using public Wi-Fi networks. We should already know how to encrypt our emails and the Office documents we send as attachments. We can also encrypt the information we send over the internet. In 2010, a California opinion (2010-179) stated that the encryption of email “may be a reasonable step” for attorneys. Some would now assert that it is a necessary step. What has now become equally important is the encryption “in place” of the information resident on our servers, desktops, laptops and mobile devices. In 2014, a local attorney left his laptop on the trolley, and the result was a data breach requiring the expensive process of notice to clients, not to mention the public embarrassment. The data on the laptop was not encrypted. We can’t assume that we are incapable of a similar mistake with a laptop or mobile device. TSA recently reported that 70 laptops had been left at TSA checkpoints in Newark Airport in the Continue on page 38
January/February 2017 SAN DIEGO LAWYER 11
BY EDWARD McINT YRE
E ETHICS
Just a Dash of Cold Water Don't step out of bounds if practicing out of state
uncan waltzed into Macbeth’s office, another man about his age in tow. Macbeth looked up from the brief he was re-editing. “To what do I owe the unexpected pleasure?” “Sorry to barge in, Macbeth. But Donald’s in a bit of a hurry. We’ve been discussing some things. We’d like … Well … a second opinion? Macbeth set down his pen. “Of course, what’s the issue?” “Well, Donald’s thinking of hooking . . .” Macbeth held up his left hand. “We’ll let Donald tell his own story. But first let’s call Sarah in. She’s always good for a second opinion.” After Sarah joined them, Macbeth nodded. “Donald, the floor’s yours.” “Thanks. I’m from Washington. The state—not the other place. A company that does franchising all around the country approached me. Part of its operation involves commercial leases. Something I know a lot about.” “Very fine. Please, go on.” “So, the company wants me as an independent contractor. They’d recommend me to prospective franchisees. I’d be its ‘go-to’ commercial lease lawyer. For a flat fee, I offer to do the lease work for the franchisee.” “Just the legal work?” “Yeah. The company already has a real estate guy. Same deal. Independent contractor. He finds the property. Negotiates. Kinds of stuff real estate guys do. When they have a deal outline, it’s my turn.” “This is nationwide?” “That’s the hope.” “California?” “Yep. Up and running in Santa Barbara. Santa Monica. All before the company approached me.” “Tell me about the franchisees. Do
CARTOON BY GEORGE BREWSTER JR.
D
they have to reside where their franchise operation is situated?” “Yeah, pretty much. The only way to succeed is for the franchisee to be handson.” “So if, for example, someone were looking for a San Diego opportunity, the prospective franchisee should be a San Diego resident—or quickly become one?” “Precisely.” “Why would the prospective franchisee hire you, if I may ask?” “I’ll charge a very reasonable flat fee. Actually, below market. And guarantee it won’t change no matter how complicated the deal becomes. Also, I’ve got the company’s backing. Almost a package deal.” “Does the company then also compensate you?” “You understand this quite well.” “Salary or by the deal? “Each deal. It wants me to work for my bread.” “Of course. And the second opinion?” “Well, I see a great opportunity to expand my practice. Duncan has his doubts.” “I can understand that. I assume you
aren’t admitted to practice in, for example, California? “No, just Washington. But isn’t there an exception for transactional lawyers. Not just here, but all over.” “We can get to that. Let’s take this in smaller bites.” “Sure, except Duncan and I have been through this already.” “I’m sure you have. But humor me for a minute. Do we agree the commercial lease work you’ll be doing is practicing law?” Duncan and Sarah nodded. Donald sat back. “Well, not so obvious. I mean real estate brokers do a lot of commercial leases. They’re not lawyers—” “Well, the California Supreme Court, when it looked at the activity of some New York lawyers, would say what you’re going to do is practicing law. The fact that someone other than a lawyer might be able to do it isn’t dispositive. When a lawyer does it, he’s practicing law.” “OK. So—?” “Well, the court also held that an out-of-state lawyer who practices law in California without being a member of the Bar here, engages in the unauthorized practice of law. In that case it meant no fee for the lawyer's California work. It’s also a misdemeanor.” “Serious?” “Quite.” “What about that exception for transactional guys like me?” “You may be referring to Rule of Court 9.48.” “Whatever—” “It allows out-of-state transactional lawyers to give legal advice to a client in California to serve the needs of that client.” “Yeah, that’s the one I was thinking about.” “A critical element of the provision, however, is that a material aspect of the January/February 2017 SAN DIEGO LAWYER 13
E ETHICS transaction for which the lawyer is giving the advice takes place in a jurisdiction outside California.” “Oh.” “Sorry. Doesn’t fit. You’ll represent a California resident, entering into a commercial lease in California, for a property here.” “So, what’s my downside. Other than the misdemeanor, of course?” Macbeth nodded toward Sarah. “It could also be an unfair business practice under section 17200 of our Business and Professions Code. Then there’s another code provision that provides for treble damages up to $10,000 for work done by an unlicensed person.” “Ouch.” “And then comes Washington.” “Washington?” Macbeth picked up the thread. “Washington follows the ABA Model Rules. Its Rule 5.5 forbids a lawyer from practicing law in another jurisdiction in violation of that jurisdiction’s regulation of the profession. A comment to the rule states the obvious: ‘A lawyer may practice law
only in a jurisdiction in which the lawyer is authorized to practice.’” “So I could face discipline in Washington. For something I did in, say, California?” “Happens. Especially with unauthorized practice.” “What about a California transactional lawyer? Could he give advice to, say, a Texas or North Carolina client?” “Not unless she or he complies with the out-of-state restrictions of those jurisdictions.” “Even on a temporary basis?” “Even that.” “Well, looking at the bright side—if I’m not a lawyer allowed to practice here, at least I can’t be sued for malpractice here.” Macbeth held up an admonishing hand. “Not so fast. California’s Rules of Professional Conduct apply to all lawyers who come into this state ‘engaged in performance of lawyer functions,’ as the Rule says. Their application isn’t limited only to those who do it properly.” “You mean I have to follow your rules? Could get sued if I don’t?” “Since the Rules help define ‘duty’ for a
breach of fiduciary duty claim, for example, I wouldn’t want to have to argue you’re exempt.” “That’s worse than a ‘Catch 22.’” “Seems that way.” “So where do I go from here?” “Consider being the company’s ‘go-to’ commercial lease lawyer in Washington. But don’t forget Washington Rule 1.8—when someone other than your client pays part of your fee.” “Guess I’d better be on my way.” Editorial Note: The case to which Macbeth referred is Birbrower, Montalone, Condon & Frank, et al. v. Superior Court (1998) 17 Cal.4th 119; Bus. & Prof. Code §§ 6125 & 6126 address unauthorized practice of law.
Edward McIntyre (edwardmcintyre1789@gmail.com) is an attorney at law and coeditor of San Diego Lawyer. No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.
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BY CHRISTINE PANGAN
TIPS
T
7 Do's & Don'ts When Asking for Letters of Recommendation Tips for ensuring a quality recommendation t some point during your academic or legal career, you will have to ask for a letter of recommendation. While you may dread asking for one, your recommender may equally dread writing it. How do you ensure that you not only make or maintain a good impression but also get a good letter? Here are some suggestions.
A
1. DO request letters as early as possible. Your mentor is likely very busy and will need the time. Giving time gets you a better chance of a more thoughtful, rather than rushed, letter. An ideal time frame would be one to two months. This no longer seems to be the norm, which is why when a former intern requested a letter months ahead of time, I was quite impressed with her foresight and organization. I was more than happy to write one for her. Too early and your recommender may put it aside and forget about it; too late and your recommender may not have time. 2. DO remind your recommender. Again, we all get busy. If your deadline is getting close and you have not received confirmation that the letter has been written, send a gentle reminder. 3. DON’T leave reminding (or requesting) to the last minute. I have had people remind me the day their application was due. I have also received a request for a letter just hours before a person’s interview. Requesting or reminding too close to the deadline might not get you the best letter. 4. DON’T make your recommender do any research. As the mentor/supervisor writing the letter, I should know what you’re
applying for, to whom it is to be addressed and what needs to be in the letter. Having to look this up takes time out of your recommender’s already busy schedule (and possibly time allotted to writing your letter). I have had people simply tell me they were applying for a certain
“Your recommender should not have to look up the correct name of the position you are applying for, address information, submission information or necessary content.” scholarship/fellowship, etc., even listing the incorrect name of it, with no further instruction. Your recommender should not have to look up the correct name of the position you are applying for, address information, submission information or necessary content. 5. DO include information on what you would like in the letter. For example, if you are applying for a diversity scholarship, let your recommender know that you would like the letter to emphasize your ability to help clients in multiple languages. If you are applying for a job that specifically wants good research skills, make sure you tell your recommender to focus on that aspect of your abilities.
6. DO ask your recommender’s preference in letter writing. Recommenders’ preferences range from wanting you to write your own letter for them to sign to writing it completely from scratch on their own. Some recommenders, however, may be offended that you would suggest writing it yourself. Simply offer to do whatever would be most helpful and make it easiest for your recommender. 7. DO offer to pay costs, if appropriate. For example, if you are applying for bar admission to a jurisdiction requiring notarized letters, or you need it sent by express mail, offer to pay the costs. Your recommender may not need it, may have a notary in the office, etc., but the offer is always appreciated. Remember, you are asking for a favor. While some circumstances may not be ideal, such as finding out about an opportunity at the last minute, be sure to recognize this and be gracious in asking for those needed letters. Your mentor/former boss has no obligation to write you a letter on demand and you likely want to maintain a good relationship with your recommender. Failing to show consideration can result in mediocre letters, reluctance to write you one in the future or even a lesser view of you. Asking properly shows organization, professionalism and definitely leaves a good impression. Showing consideration and thoughtfulness can also foster greater enthusiasm for writing your letter. Christine Pangan (cipangan@yahoo.com) is a staff attorney with the Legal Aid Society of San Diego and is co-editor of San Diego Lawyer. January/February 2017 SAN DIEGO LAWYER 17
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There are approximately 1,300,700 licensed lawyers in the United States and over 250,000 in California.
How will potential clients find you? Heighten the visibility of you and your practice. Join the Lawyer Referral and Information Service to get referrals and potential clients. Contact Michelle Chavez at 619.321.4150 or mchavez@sdcba.org. Learn more at www.sdcba.org/joinlawyerreferral
SAN DIEGO COUNTY BAR ASSOCIATION
2017 SDCBA PRESIDENT
LOREN FREESTONE PREPARES FOR ACTION January/February 2017 SAN DIEGO LAWYER 19
2017 SDCBA PreSiDent
G
LOREN FREESTONE
rowing up on a family farm in California’s Central Valley, Loren Freestone did it all.
He picked fruit. He put out smudge pots during a particularly brutal winter’s night to keep oranges from freezing. If your family owned a farm, that’s just what you did. “It was expected,” Freestone said. “It was the family business.” But early on, Freestone determined that farming wasn’t for him long-term. Watching television shows like “L.A. Law,” Freestone was fascinated. “I was always interested in trying to do the right thing,” Freestone said. Aside from a brief interest in the California Highway Patrol as a small child (likely inspired by the popular-at-the-time show “CHiPs”), Freestone said, “I’ve always wanted to be a lawyer.” Freestone’s sister said it was no surprise to her that her brother became a lawyer. “That’s truly his calling,” Kristin Freestone, M.D., said. “He’s a great negotiator. Oh my word, he can talk his way into almost anything.” She said he also is “a true orator, one of the best I know,” adding, “I’d say even like Bill Clinton, he’s that good.” Freestone, 46, has become one of San Diego’s most respected lawyers, admired
20 SAN DIEGO LAWYER January/February 2017
by judges and colleagues as he takes over the leadership of the San Diego County Bar Association as its president for 2017.
meaningful, even if it means we become controversial.”
“He is a very bright guy, he is extremely easy to work with, he has a great work ethic, and it is just no surprise to me that he has ended up where he has,” said Fourth District Court of Appeal Associate Justice Judith Haller.
“I think being helpful is the most important thing, as we provide the evaluations for the public and they rely on us as the leader and as the entity with the ability to make these evaluations better than anybody else,” Freestone said.
Haller got to know Freestone when he worked as her extern from 1996 to 1997.
Mentoring young lawyers also is among Freestone’s priorities.
“Some people are easy to be around and Loren is one of those people. He sort of quietly gets a lot done,” Haller said. “I think he will be someone who can bring people with different points of view together.”
“Law school does not teach you how to be a lawyer. It teaches you the language, it teaches you the cases and concepts, but it does not teach you how to be a lawyer,” Freestone said. “Even the simple things— for example, you stand up to address the court—are not taught to students anymore.”
Freestone has set an ambitious agenda for his term as Bar Association president. “My focus is going to be on the bigger picture of trying to improve the lives of lawyers and their practice, and their overall well-being,” Freestone said. “Part of what I want to do is recognize that everybody’s participation is meaningful, that every member is valued for their unique individual talents and perspectives, and all that brings to the Bar.” Freestone also wants the Bar Association “to continue to be more technology-based, more connected to technology, more userfriendly.” He’s also keen on raising the Association’s public profile. As part of that, he wants to review the way the Association’s Judicial Evaluation Committee rates candidates running for election to the bench, so that “evaluations of candidates are helpful,
Freestone said he learned all those things when he was an associate working with Superior Court Judge Gregory Pollack at the former law firm of McInnis Fitzgerald before it merged with Higgs, Fletcher & Mack and before Pollack became a judge. “He took me to depositions … he taught me the proper way to do things,” Freestone said. Pollack liked Freestone’s call for strong mentoring for young lawyers. “It’s true, you learn the law in law school, but practicing it sometimes is very different,” Pollack said. “I can tell sometimes in court when a young lawyer appears before me whether he has had good mentoring or bad mentoring. A lawyer who has had bad mentoring will be real argumentative, won’t realize that there are nuances in the law and doesn’t understand the big picture. It’s not
2017 SDCBA PreSiDent winning the battle, it’s winning the war.” Pollack is among those who have become admirers of Freestone as he’s advanced in his career. “Loren is just a wonderful lawyer, a wonderful person,” Pollack said. “I just can’t say enough about him. He’s always showed excellent judgement and kept his sense of humor, even in the worst of times, which were rare.” Superior Court Judge David Rubin is another of Freestone’s fans. They met through mutual friends about 16 years ago when Rubin was a San Diego County deputy district attorney and Freestone was an upand-coming lawyer. “My impression was that he’s a very thoughtful person,” Rubin said. “He does sort of worry about the human condition and what he can do to make it better.” Freestone got an early start on his legal career by working on mock trials for four years at Orosi High School in Tulare County, where he also played on the golf team and was student body president. He graduated cum laude from the University of California, Los Angeles in 1994 with a double major in political science and history, and received his law degree in 1997 from the University of San Diego School of Law. As an attorney with the firm of Higgs, Fletcher & Mack from 1998 to 2004 and from 2008 to this day, Freestone specializes in employment law, primarily as a defense attorney, although he did work briefly as a plaintiff’s attorney with the late Debra Hurst at the firm of Hurst and Hurst from 2004 to 2008. “That’s one of the things that’s going to help him in the long run, because he knows both sides,” said George Kindley, a personal injury attorney and longtime friend. The two met while Kindley was still in law school and Freestone was already practicing. “I’m proud of him for taking a step out and trying something different, and I’m also proud of him for recognizing what was better for him,” Kindley said. “He’s got a great reputation in town as being somebody who gets along not only with attorneys on his side of the fence, but also people who are across the table.” Outside the office, Freestone “is just a very unselfish person,” Kindley said. “He cares
LOREN FREESTONE
about people. He has a life outside of his practice, which I think is very important. It’s hard for some lawyers to strike the balance.” Freestone said he likes employment law because “not one issue is the same.” “You never do the same thing twice, you’ll never run across the same circumstance,” Freestone said. Of all the cases he’s handled, Freestone said the oddest and oldest is an age discrimination/harassment issue that goes back to 2010 and has yet to be resolved. After losing at trial, Freestone said his side discovered that a key document had been altered. The judge ordered a new civil trial, but that’s still pending resolution of criminal charges that were filed by the District Attorney’s office against the person who altered it. “We’re sort of in limbo currently,” Freestone said. “But it’s one of the most exciting cases —finding an altered document was clearly a game changer.” A surfer, skier and backpacker, Freestone is an avid outdoorsman. He was drawn to San Diego by its climate after visiting the city as a competitive rower on UCLA’s crew team. “I came down here on one of those gorgeous, beautiful San Diego days,” Freestone said. A visit to USD’s hillside campus convinced him that this was where he wanted to attend. While in law school, Freestone would surf every morning at Black’s Beach in La Jolla, going straight from the beach to class, often covered in drying salt water. “One girl said to me, ‘What do you do before you come to class?‘ You look like a potato chip,’” Freestone said. “I said, ‘OK, at least I don’t smell.’” Freestone’s passion for the outdoors led to one unexpected adventure when a bear came sniffing around his tent when he was backpacking by himself in Idaho. “People talk about trembling with fear, it actually does exist,” Freestone said. “When that bear was sniffing around the tent, that was about as scary as it gets.”
Quick Hits Favorite website(s): mammothmountain.com Biggest pet peeve: Guys who don’t wear collar stays. Favorite book: The Last Season Favorite quote: “Don’t give up on your dreams, or your dreams will give up on you.”—John Wooden Personal motto: Be yourself, meaning be true to yourself, otherwise there isn’t anyone. Morning person or night owl? Night owl. Staying in or going out? Going out. Favorite place on earth: The ocean—a place to lose and find yourself at the same time. Favorite meal: Anything with Mom’s pasta sauce. Person you would most like to have dinner with: My Italian grandfather (who isn’t with us anymore) because of his unique ability to make us all terribly laugh at the dinner table. Something most people don’t know about you: I was on an MTV game show once. Favorite concert of all time: Madonna! When I was 19. Best surfing spot: South Bird (Bird Rock) on a solid south swell. Personal role model or mentor: Too many to list. Favorite app: Instagram—a picture is worth a thousand words.
The bear eventually wandered off, but Freestone also had an indirect encounter with bears while visiting his brother in January/February 2017 SAN DIEGO LAWYER 21
2017 SDCBA PreSiDent
LOREN FREESTONE Mammoth Lakes over the past Thanksgiving weekend.
“My wife thanks Loren for training me,” Solari said.
Freestone had left his car door unlocked, and when he awoke in the morning, he found bear paw prints inside and outside of the car, and a sticky residue on the door handle.
Solari recalled the “amazingly great Halloween parties” he and Loren hosted.
“I showed it to a local and he said, ‘Oh yeah, the bears open car doors with their tongue,’” Freestone said. Bears aside, Steven Cologne, a senior partner at Higgs, Fletcher & Mack and fellow backpacking enthusiast, said Freestone is “a fantastic outdoorsman and able to handle himself.”
Quick Hits continued What did you want to be when you grew up? A lawyer Best professional advice you received when you were just starting out: “The key to our job is preparation.” What advice would you give a new lawyer today? Maintain character and civility, because that will lead to the only thing important in a legal career—your reputation. Biggest career high so far: Keeping an elderly man out of jail (mostly because I’m a civil lawyer). What would you be if you weren’t a lawyer? Never gave it a thought. Not possible. Do you have a morning ritual? Can you say, coffee? Who inspires you (professionally and personally)? People who are humble, who do hard work to make themselves better and who don’t complain. Ever encounter any celebrities? Yes: Justin Timberlake at the Burton store on Melrose in West Hollywood; Kevin Bacon running track at UCLA; Patrick Stewart while jogging in Bel Air. Which famous person do people say you look like? Young Tom Hanks Who do you think you look like? Young Brad Pitt (j/k) At the end of your presidency, what is the one thing you hope you can say about your term? That I was able to move the fast moving train onto a slightly different track.
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The two men trudged through the wilds of Alaska for 10 days in 2009. “Most of the trip, it was a raining windstorm and there was a big gust of wind that almost blew our tent off on the first night we were there,” Cologne said. “When you’re on a trip like that you’re only thinking about food and shelter; it’s really a great way to get away from the office. You just really feel like the burdens of the day are lifted off your shoulder because you have no cellphone, you have no contact with the outside world unless you’re in trouble, really in trouble.” Despite the hard conditions, Freestone “never got frustrated,” Cologne said. “He can handle difficult environments. He doesn’t get rattled. He goes with the flow. He remains alert, attentive and can persevere.” Soren Solari, a longtime friend and former roommate of Freestone, was the messier of the two in their “Odd Couple” arrangement when they shared a Mission Beach apartment.
“You wouldn’t be allowed into the house without a costume,” Solari said. “(Freestone) and myself and another guy would always do themed costumes together. One time, we all went as cigarettes with chains linking us, so we were chain smokers.” The parties were noisy, but Solari said no one ever complained because all the neighbors were invited. “Loren’s one of those few friends I have that I could pick up a phone at any time and ask for anything, and I know he’d do anything in his power to help,” Solari said. “He’s really kind, hardworking and cares about others. He’s absolutely a good friend to have.” Freestone’s father was one of the earliest organic farmers in California. At the time, organic farming was such a novelty that Freestone’s father became a bit of a celebrity, featured in several newspaper profiles, and even appearing on a radio show hosted by now-Gov. Jerry Brown. Freestone’s mother was a teacher at a continuation high school, where she was in charge of a program for pregnant girls. Both of Freestone’s parents are retired. Freestone’s brother, Lee, is a financial manager and his sister, Kristin, is a radiologist in Colorado, where she also taught at the University of Colorado. Freestone is the second openly gay man to become Bar Association president, and his
2017 SDCBA PreSiDent
LOREN FREESTONE
election is being celebrated in the LGBT (lesbian, gay, bisexual and transgender) community, said Ben Aguilar, president of the Tom Homann LGBT Law Association. Freestone was a board member of the LGBT Law Association from 2007 to 2016. “We’re pretty excited and I think the entire Bar Association and the entire Bar community is really excited about Loren taking this role as president,” Aguilar said. “One of the goals of the LGBT Association is to have more openly LGBT individuals in leadership.” Aguilar said Freestone has long been a role model for him, personally, and now is a role model for the LGBT community. “It’s important whenever you have LGBT people in higher profile positions,” Freestone said. “I think it’s important that we be ourselves, that we show we all can lead, that diverse people can do great things.” As Bar Association president, Freestone will naturally be a pillar for the LGBT community, but really aims to stress the need for diversity.
Back row, L-R: Norman Freestone (dad), Linda Walker (aunt), Loren Freestone, Kristin Freestone (sister), Lee Freestone (brother), Palma Freestone (mom), David Walker (uncle); Front row, L-R: Angelina Maniatis (niece), Julia Freestone (niece), Ella Freestone (niece), Alexander Freestone (nephew) Before becoming Bar Association president, Freestone was vice chairman, co-chairman then chairman of the Association’s Ethnic Relations and Diversity Committee. The SDCBA received an ABA Partnership award for the Association’s Diversity Fellowship Program, which Freestone helped spearhead. He also was named a Southern California “Super Lawyer” for 2014, 2015 and 2016; named to the San Diego Business Journal’s
“Best of the Bar” for 2016; and was one of 15 business leaders named a “Mover and Shaker” for 2016 by San Diego Metro Magazine. “I want to ensure that the legal profession tries to mirror our population as closely as we can,” Freestone said. “The (Bar Association) board is clearly of that mindset, but there’s still work to be done in our community.”
EARN MCLE CREDITS
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HIGH SCHOOL MOCK TRIAL
EXPERIENCE FOR A LIFETIME BY TODD HAAS
The San Diego County High School Mock Trial Competition is more than an extracurricular activity or volunteer opportunity—it is an experience for a lifetime, not only for the high school student participants, but also for the attorney coaches, the attorney scorers and the volunteers.
F
or four days in February, the competition transforms the San Diego County Courthouse into a bustling epicenter of creativity, hard work and ingenuity that lawyers, witnesses or court personnel seldom see. The competition includes 27 teams (with an expected 500 high school students competing in 2017), more than 40 attorney coaches, some 20 judges, more than 100 attorney scorers, and numerous court staff and law enforcement volunteers. Each individual contributes to the overall experience by allowing high school students to learn firsthand what a court trial entails and how the judicial system works—a unique collaboration that provides for all involved an experience for a lifetime. Each participant learns something new and unique: experiences, skills and talents that she or he can use once “real life” begins again and the mock trial is over. By the time the competition begins on February 16, 2017, the high school teams will likely have prepared more than many attorneys prepare for trial. One attorney coach reported that his team practices twice a week for two hours, and then
meets on weekends leading up to the competition—more than 100 hours of practice for a trial that lasts less than two hours. Many teams also engage in scrimmages, practice sessions, practice invitationals, run-throughs and one-on-one practice examinations. This means some teams will have practiced an examination more than 16 times, then perform it in the competition only twice, at times for just three minutes. Clark Fahrenthold, now at Sonoma State University and participating in his school's mock trial team, said: "I've never prepared so much just for a five-minute presentation. I learned how to manage time, only present what was important, and deliver a concise, well-thought-out argument." All of the hard work and practice shows during the competition; most of the teams look, act, move, talk and appear as confident as most lawyers, witnesses, clerks and bailiffs. A constant theme about the competition is "inspiring." It encourages young people to develop their analytical abilities and communication skills while gaining increased self-confidence. The competition also provides high school students their first opportunity to engage in public
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speaking or allows them a chance to master an expert's testimony in a subject that they likely have never known about before the competition. As Cole Forrester, a student that was the handwriting expert for the mock trial competition last year, reported: "I learned all about handwriting analysis and wanted to know more, so I researched handwriting experts. I think I might want to go into this field." Because of this initial experience, many high school participants join their college mock trial teams, intern at a lawyer's office or engage in public speaking. The competition also allows students to develop the skills necessary for the mastery of state standards for history, social science and language arts, and prepares them for college and the world beyond. Wright Smith, a former high school mock trial student attorney for two years—and now a Harvard University student—said: "I've found mock trials tremendously helpful in pursuing other extracurriculars, especially Model United Nations and other public speaking activities. It's also been really useful in my work as a research assistant at the Kennedy School of Government … I've been working on my thesis on political and diplomatic history related to the Eisenhower and Kennedy defense establishments, and have been using a legal perspective to assess the institutional aspects of the civil military and interservice relationship during that period." Not only the students benefit. Many attorney coaches volunteered because they thought they could teach high school students a thing or two about trial tactics and litigation. As it turns out, however, many coaches found the roles reversed. As Bob Balfour, an attorney coach for two years, put it, "I learned more about being a lawyer from the high school students than I did my first year in law school."
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The attorney coaches assist the students in developing their trial strategy and litigation tactics, and then get the opportunity to watch them compete over four days (and hopefully, for one team, the chance to win at state and national level). Although many attorney coaches have demanding jobs that offer little free time, they dedicate themselves to the students. As an attorney coach for Coronado High School, I acknowledge that, despite the time commitment, I would willingly do it every year because one student attorney went from an introverted, mild-mannered individual to "an aggressive, phenomenal and well-equipped cross-examination
The time commitment is about two hours, but most willingly stay behind to give feedback to the students, and use the opportunity to discuss the legal profession and why they became lawyers. Attorney scorers get to watch high school students transform into lawyers, an experience well worth the time. As Lorrie Walker, an attorney scorer who volunteered with her attorney husband Justin Walker last year said: "The competition was inspiring! As an attorney we get bogged down in the everyday practice of law, but witnessing high school students exude confidence and a tremendous work ethic showed me why I became a lawyer in the first place."
“Witnessing high school students exude confidence and a tremendous work ethic showed me why I became a lawyer in the first place.”
An important aspect of the competition is the role of the volunteers who maintain the integrity of the competition as judges, monitors and support staff. As Ethan Haas, a student now studying at Elon University and competing on its mock trial team, remarked, "I can't believe how hard the volunteers work to make sure the competition is fair and balanced."
machine." Initially, this student had no idea how to conduct a cross-examination; at a trial last year, however, he forced a prosecution witness to openly admit the innocence of the defendant. The attorney coach remarked that this one experience made him a better lawyer and "reignited my passion for the law." The attorney scorers get to watch—as if they were real jurors—the drama of the mock trial unfold. They have a set of criteria for rating the teams, which include the quality of the students' presentations, their grasp of the law and court procedures, and their understanding of the case itself.
The San Diego County High School Mock Trial Competition presents a unique experience for the students, coaches, attorneys and volunteers. The competition is taking place on February 16, 21, 23 and 25. Come downtown to see firsthand how inspiring it is to be involved in an experience of a lifetime. Todd Haas (thaas@selmanlaw.com) is a partner with Selman Breitman LLP.
Volunteer to score this year's competition! Visit sdmocktrial.org to sign up.
Legal Aid Society of San Diego
The Journey Toward Justice Begins Here The Pro Bono Innovation Fund was created by the Legal Services Corporation (LSC) in 2014 to fund new pro bono initiatives that engage more lawyers in pro bono service, and address gaps in legal services and challenges in pro bono delivery systems. In 2016, 11 legal aid organizations were awarded nationwide, including Legal Aid Society of San Diego (LASSD). As part of LASSD’s commitment to health law issues, the In-Home Supportive Services (IHSS) Pro Bono Project will complement LASSD’s robust health law practice; develop a new pro bono case management and referral system; and provide volunteer attorneys with support and training to advocate on behalf of elderly and disabled clients in need of in-home care services.
grooming, bathing, housecleaning, shopping, meal preparation, paramedical care and protective care for those who might wander or do self-harm.
IHSS is a statewide program that allows disabled or elderly individuals to stay in their homes safely and not be forced into more expensive settings such as nursing homes or board and care facilities. To qualify for IHSS, a consumer must be financially eligible; be disabled or over 65 years old; and be unable to live at home safely without help. Services can include domestic and personal help such as
Despite strong community interest in keeping the elderly and disabled in their homes and integrated in their community, the availability of legal representation for those who wish to challenge decisions regarding their IHSS benefits cannot keep up with the burgeoning demand. This new project will fill the growing gap in legal aid funding by providing a range of opportunities for volunteer attorneys to
Consumers can apply for IHSS in person at a county office or by phone. A social worker is sent to the consumer’s home to determine their eligibility. Eligible recipients are awarded between one and 283 hours per month of care. Most IHSS issues involve denial of IHSS or not being awarded enough monthly hours for adequate care. Those cases can be appealed at the Department of Social Services to an Administrative Law Judge. If the consumer is still unsatisfied with the results, a writ of administrative mandamus can be filed with the Superior Court.
By Gregory Knoll and Sara Raffer Lee assist. Volunteer attorneys will be recruited to offer advice, provide representation at Administrative Law Hearings and assist with writs. The project will also pilot the use of a new portal that will streamline the case referral and management process for LASSD and its volunteers. The portal will also contain a repository of training materials, videos, webinars, sample forms, canned notes, pleadings and templates to provide volunteer attorneys with all the necessary resources at their fingertips. Jim Sandman, president of the LSC in Washington, D.C., noted, “this proposal from LASSD received one of the highest ratings because it perfectly uses technology and pro bono volunteers to attempt to address a community-wide need.” If you are an attorney interested in volunteering to assist this vulnerable population, contact Sara Raffer Lee at (877) 534-2524 ext. 2717 or sarar@lassd.org. Gregory Knoll is CEO/Executive Director/Chief Counsel with Legal Aid Society of San Diego, Inc., and Sara Raffer Lee is Pro Bono Program Manager with LASSD.
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karcherappeals.com | 619.565.4755 Certified Appellate Specialist, Board of Legal Specialization, State Bar of California
January/February 2017 SAN DIEGO LAWYER 27
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Changes to the Rules of Professional Conduct Likely in 2017 By Daniel Eaton and Heather Rosing
It's been a long, a long time coming But I know a change gonna come, oh yes it will. Sam Cooke, “A Change Is Gonna Come” (1964) The California Rules of Professional Conduct were last overhauled about 30 years ago. Sometime this year, there is a solid chance the California Supreme Court will approve far-reaching changes to the rules.
he proposed changes are the result of about two years of work by the Rules Revision Commission, a group of 19 lawyers and judges and five non-voting advisers appointed by the State Bar Board of Trustees to study the existing rules and recommend changes to them. The group is chaired by Justice Lee Smalley Edmon, Presiding Justice of Division Three of the Second District Court of Appeal in Los Angeles.
one of the first principles on which the Commission agreed was to abandon the unique numbering system of California’s professional conduct rules in favor of using the ABA Model Rules numbering for corresponding concepts.
The California Supreme Court declined to adopt the recommendations of an earlier panel charged with reviewing the rules. The new Commission was given a Charter that instructed the Commission to, among other things, “focus on revisions that (a) are necessary to address changes in law and (b) eliminate, when and if appropriate, unnecessary differences between California’s rules and the rules used by a preponderance of the states (in some cases in reliance on the American Bar Association’s Model Rules) in order to help promote a national standard with respect to professional responsibility issues whenever possible.” Accordingly,
The Board of Trustees is expected to consider the Commission’s final recommendations, following a last round of public comment, in time to submit a complete set of revised rules to the California Supreme Court next March for its consideration.
T
The Commission also was charged with avoiding purely aspirational objectives and eliminating ambiguities in rules that are designed, after all, to serve as a set of disciplinary standards.
Dan, a former Chair of the SDCBA Legal Ethics Committee, serves as a voting member of the Commission. Heather, a former SDCBA President and former officer of the State Bar Board of Trustees, serves as a Commission adviser. San Diego Lawyer asked us to highlight some of the more significant rule changes in the offing. January/February 2017 SAN DIEGO LAWYER 29
Proposed Rules 5.1 and 5.3: Supervision of Lawyers and NonLawyer Assistants Until now, California lawyers in supervisory positions have been governed by Rule 3-110, which generally provides that lawyers must act competently. Proposed Rules 5.1 and 5.3 will be much more specific, and lawyers who supervise the work of others will likely need to adjust their practice to ensure compliance. Proposed Rule 5.1 provides that lawyers with managerial authority in a law firm must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm comply with the Rules of Professional Conduct and the State Bar Act. Likewise, lawyers who have direct supervisory authority over other lawyers must make these same efforts to ensure their supervisees are in compliance. Proposed Rule 5.3, which discusses supervisor responsibilities over non-lawyer assistants, mandates that lawyers take these same steps to ensure conduct compatible with the professional obligations of the lawyers. Ultimately, the lawyer is responsible for the conduct of the non-lawyer. As a practical matter, this means that supervisory lawyers can no longer just review the assigned work on an ad hoc basis. There now must be more formal systems not only to monitor performance, but to instruct and train. And keeping proof of that instruction and training becomes “a must.” While it will become even more important to keep employee manuals up-to-date and easily accessible, the proposed rules will likely also require robust and structured case management systems to be in place, including conflict and calendaring systems. Equally critical are built-in redundancies to avoid the possibility of one employee circumventing the system to the detriment of the clients. Proposed Rule 5.5: The Unauthorized Practice of Law Because the Rules of Professional Conduct do not apply to non-lawyers, those engaged in the unauthorized practice of law (UPL) will not be subject to the disciplinary jurisdiction of the State Bar (with some limited exceptions involving shutting down an unauthorized practice). However, both the current rules and Proposed Rule 5.5 discuss the obligations of licensed practitioners.
“The traditional bright line separating the practice of law from UPL is becoming increasingly blurred; and practitioners will want to keep a close eye on what California may do in this LSP/ABS arena in the coming years.” 30 SAN DIEGO LAWYER January/February 2017
For example, lawyers licensed in California cannot practice law in a jurisdiction where doing so would violate regulations of the profession in that jurisdiction. Equally important, a California lawyer cannot assist someone in the unauthorized practice of law. This situation was particularly prevalent in the context of the loan modification crisis, when non-lawyer businesses persuaded lawyers to affiliate with them, and could also collect an advance fee. As a consequence, many lawyers were disciplined and had their licenses revoked. New categories of non-lawyer legal service providers (called LSPs) are being authorized across the country with increasing frequency. Examples include federally authorized LSPs; courthouse navigators in New York; limited license practitioners in Washington state; and document preparers in Arizona, California and Nevada. Additionally, Alternate Business Structures (ABSs) are popping up across the globe. Washington, D.C., in fact, now allows non-lawyer ownership in law firms. So the traditional bright line separating the practice of law from UPL is becoming increasingly blurred; and practitioners will want to keep a close eye on what California may do in this LSP/ABS arena in the coming years. Proposed Rules 1.8.11 and 1.10: Imputation of Prohibitions on Attorneys in the Same Firm California’s current Rules of Professional Conduct say virtually nothing about the extent to which an ethical restriction that applies to one lawyer in a law firm is imputed to all of the other lawyers in the law firm. Rule 1.8.11 would impute the restrictions of nine rules to all law firm attorneys if one of the restrictions applied to a law firm attorney. Those restrictions include imposing conditions on a lawyer’s business transactions with a client (current Rule 3-300) and a lawyer’s receiving payment for client services from a third party [current Rule 3-310(F)]. Proposed Rule 1.10 would impose a general rule of imputation as to the lawyers in a law firm where one lawyer is conflicted from the representation of a current or former client. In the case of conflicts with a former client of a lawyer when the lawyer was employed by a prior firm, the proposed new rule would allow the prohibited lawyer to be ethically screened from the matter. Any affected former client would have to be given notice of the firm’s screening procedures in the matter and would have the right to contact the firm about the adequacy of the screening measures. The allowance of ethical screens would represent a major change in the disciplinary rules, even as there continues to be a conflict in California appellate authority as to whether such screens may avoid disqualification. Proposed Rule 1.14: Clients with Diminished Capacity California does not currently have a rule that addresses this issue, though one exists in the ABA Model Rules. ABA Model Rule 1.14 allows a lawyer who reasonably believes that a client has diminished capacity, and who is at risk of substantial physical, financial or other harm, to take reasonably necessary protective action.
The Commission was not able to propose a similar rule, due to the strictures of Business & Professions Code section 6068(e), which requires a lawyer to “maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.” Accordingly, the Commission structured Proposed Rule 1.14 in such a way that, in certain circumstances, a California lawyer who fears for a client with diminished capacity may try to obtain the client’s consent to take protective action, while at the same time taking all steps to preserve confidentiality. It also allows lawyers to obtain advance informed written consent for the protective action, while the client still has full capacity. The proposed rule has its obvious challenges. How does a lawyer determine if a client lacks capacity? Capacity is presumed under Probate Code section 810, but it is a rebuttable presumption. It may be necessary to involve medical professionals. Even assuming the lawyer can figure it out, how does the lawyer get consent from an incapacitated person? The comments to the proposed rule suggest that the client with diminished capacity may not be able to make decisions to protect himself, but may still have the ability to recognize that it is a good idea to consent to the lawyer seeking assistance. Finally, what does “protective action” even mean? The ABA Model Rules mention consulting with family members, using voluntary surrogate decision-making tools such as durable powers of attorney, and consulting with professional services, but it is unclear whether California courts and disciplinary authorities will approve similar forms of action.
ultimately involved, and which may be paid in whole or in part in advance of the lawyer providing those services.” Practitioners must keep in mind, though, that this proposed rule is just one part of a comprehensive picture on the issue of fees. For example, Proposed Rule 1.15(a) and (b) talk about proper utilization of trust accounts; Proposed Rule 1.16(e)(2) discusses return of the unearned fees at the end of the relationship; and Proposed Rule 1.5.1 discusses fee splitting.
the lawyer’s representation of the client will be materially limited by the lawyer’s responsibilities to or relationships with another client, a former client or a third person, or by the lawyer’s own interests.” Comment 5 of the proposed rule frames the analysis a lawyer must undertake: “The critical questions are the likelihood that a difference in interests exists or will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in
“The allowance of ethical screens would represent a major change in the disciplinary rules, even as there continues to be a conflict in California appellate authority as to whether such screens may avoid disqualification.” Proposed Rule 1.7: Conflicts of Interest, Current Clients
Proposed Rule 1.5: Fees
Conflicts of interest among current clients are addressed under current Rule 3-310(B) and (C). Under the existing approach, a lawyer is subject to discipline only if the lawyer’s conduct fits within discrete situations, including (1) failing to provide written disclosure to the client where the lawyer has some kind of relationship with a party or witness in the same matter [3-310(B)(1)]; and (2) failing to obtain the informed written consent of each client where the interests of more than one current client potentially or actually conflict [3-310(C)(1),(2)].
Proposed Rule 1.5 incorporates many of the elements of the existing Rule 4-200, which discusses what constitutes an “illegal” or “unconscionable” fee. The most interesting part of the proposed rule is a section that explicitly deals with flat fees, which is not addressed in the current set of rules, despite the prevalence of the arrangement in a variety of practice areas, including criminal defense matters. Section (e) allows a flat fee, and defines it as a “fixed amount that constitutes complete payment for the performance of described services regardless of the amount of work
The proposed new rule would move away from this “checklist” approach and closer to the ABA Model Rule approach, which describes two kinds of conflict situations involving existing clients: (1) those involving direct adversity; and (2) those involving a significant risk that a lawyer’s representation of a current client will be materially limited by the lawyer’s responsibilities to another client or other third person. The resulting proposed hybrid rule would require a lawyer to obtain the informed written consent of a client any time “there is a significant risk
considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of each client.” Proposed Rule 8.4.1: Discrimination Rule of Professional Conduct 2-400 makes a lawyer subject to discipline if, in the management or operation of a law practice, the lawyer unlawfully discriminates or knowingly permits unlawful discrimination on the basis of membership in a protected class, such as race or sex. Under the current rule, however, the State Bar is prohibited even from initiating a disciplinary investigation of an alleged violation of this rule unless there has been a finding in a separate, non-disciplinary tribunal that unlawful discriminatory conduct occurred [Rule 2-400(C)]. The proposed new rule would drop the requirement of a finding of unlawful conduct before the State Bar may initiate a disciplinary investigation on a complaint of unlawful discrimination. The proposed new rule also would expand the scope of the rule to prohibit discrimination in “representing a client, or in terminating or refusing to accept representation of any client” in addition to discrimination in the management or operation of a law practice. January/February 2017 SAN DIEGO LAWYER 31
Under the proposed rule, a lawyer subject to a State Bar investigation or State Bar Court proceeding alleging a violation of this Rule must notify the State Bar of the pendency of any criminal, civil or administrative proceeding premised on the same conduct. Comment 6 of the proposed rule confirms that a State Bar investigation or disciplinary proceeding under this Rule may be abated during the pendency of any such parallel proceeding. Proposed Rule 1.18: Duties to Prospective Clients No current California Rule of Professional Conduct addresses a lawyer’s duties to a prospective client. The issue is addressed in the Evidence Code, case law and ethics opinions of the State Bar and local bar associations. For example, California Evidence Code section 951 defines “client” for the purpose of the attorney-client privilege as any person who “consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity.”
Robert K. Dixon
Proposed new Rule 1.18, derived from ABA Model Rule 1.18, generally would prohibit a lawyer from using or disclosing confidential information the lawyer received from a prospective client. A lawyer who did receive such confidential information could be adverse to the prospective client in a same or substantially related matter only if (1) both the affected client and prospective client gave informed written consent to the representation or (2) the lawyer took reasonable measures to obtain no more information from the prospective client than was reasonably necessary to determine whether to represent the prospective client and was timely screened from the matter and received no part of the fee from the matter. Someone who unilaterally contacted the attorney solely to prevent the attorney from representing his adversary—that is, “without a good faith intention to seek legal advice or representation”—would not fall within the definition of a “prospective client” to which this rule applies.
Conclusion There is no guarantee that the California Supreme Court will approve all—or any —of the revisions the Commission has proposed to the existing California Rules of Professional Conduct. The Commission’s faithful adherence to the directives set forth in its Charter suggests that many, probably most, of these changes will be enacted. Through this article, San Diego lawyers are now on advance notice of the changes that may be coming. Daniel Eaton (eaton@scmv.com) is a shareholder with Seltzer Caplan McMahon Vitek, and Heather Rosing (hrosing@klinedinstlaw.com) is shareholder and CFO with Klinedinst PC.
Wilson Turner Kosmo LLP is pleased to announce our newly elected partners. We congratulate Robert K. Dixon, Daniel C. Gunning, and Marissa Lyftogt for their valuable contributions and welcome them to our partnership team.
Daniel C. Gunning
A WBENC women-owned firm representing companies throughout California Business Litigation • Class Action • Employment Law • Product Liability
Marissa Lyftogt
www.wilsonturnerkosmo.com
MEMBERSHIP BY THE NUMBERS MEMBERS — The SDCBA thrives because of the diversity and unique talents of each of our members. Thank you for being a part of the SDCBA, and helping to “Set the Bar Higher” for our profession.
WOMEN MEN
55%
45%
22 LANGUAGES SPOKEN ATTORNEY MEMBERS American Sign Language Arabic Chinese English Farsi French German Greek Hebrew Hungarian Indian
Italian Japanese Korean Lithuanian Mandarin Polish Portuguese Russian Spanish Tagalog Taiwanese Vietnamese
ARE ALUMNI FROM AND CURRENT LAW STUDENT MEMBERS ATTEND:
ATTORNEY MEMBERS YEARS IN PRACTICE
8% 16% 19% 57%
Lawyer Referral & Information Service Practice Area Panels
of attorney members are solo or small firm practitioners
LOCAL LAW SCHOOLS
OTHER LAW SCHOOLS
24%
California Western School of Law
6%
Other Law Schools in Southern California
Thomas Jefferson School of Law
8%
Law Schools in Northern California
17% 30%
University of San Diego School of Law
15%
Out-of-State Law Schools
ATTORNEY MEMBERS AREAS OF PRACTICE 14%
Over 40 years
11% 10% 8% 7% 57%
Over 20 years Over 10 years Less than 10 years
ATTORNEY MEMBERS BY REGION
43
OVER 60%
Downtown Core: Downtown north to I-8
47.8%
Mid-County Coastal: Point Loma/La Jolla
32.2%
Mid-County Inland: Mission Valley/Del Mar
35.2%
North County Coastal: Solana Beach/ Oceanside
25.5%
Business or Business Litigation Civil Litigation Family Law Estate Planning Criminal Other Practice Areas
Southwest Region: South Bay
27%
Southeast Region: East County
30.7%
North County Inland: Rancho Penasquitos/ Fallbrook
22.5%
January/February 2017 SAN DIEGO LAWYER 33
was not a familiar term when I Wellness: Wellness did something about mine in 1978. That was the year I lost 140 pounds and When, changed my life forever. Where and Why W By Russell Rawlings, Director of Communications North Carolina Bar Association
hether that qualifies me to write on the subject of wellness remains to be seen. There’s certainly more to wellness than losing weight. On the other hand, wellness would be difficult to achieve without some semblance of weight control.
If there is any advantage to having been the fat kid in school all the way into my senior year of college, it would be my experience with weight. From gaining it to losing it to living with it to keeping it off, I know weight, and it knows me. Let me begin with my guiding principle, the one thing that I write about and speak about with greatest confidence when matters of weight and wellness are being discussed. It is the single-most undisputed fact I have gleaned from decades of observation and introspection. You only get one body. No matter what your situation is, no matter what you believe in, no matter what you weigh, you only get one body. It’s up to you to decide what you do with that body, what you put into that body, and what you get out of that body. The vessel we’re walking around in is the ultimate accounting system, measuring intake against output in determining how we look and how we feel. I can rationalize every useless and unnecessary calorie that finds its way into my body, but at the end of the day all bills come due. In my younger years, when looking better certainly played a pivotal role in my desire to lose weight, I focused most of my attention on the number on the scales and the size of my clothes. I vividly recall the only belt that I owned being a size 56-inch waist. As the pounds came off, the guys in the press room at the newspaper where I worked took great joy in punching out new
holes for me until the belt reached halfway around to my backside. Then, as I grew older, and now, after turning 60, I have developed much greater appreciation for feeling as good as I can possibly feel. My metabolism has decreased and with it went my margin for error, but that is no reason to give up or give in. On the contrary, that is precisely the time to fight harder and smarter for the quality of life that can only be achieved through healthy living.
No matter what your situation is, no matter what you believe in, no matter what you weigh, you only get one body. No matter your age, the time to begin, renew or continue your commitment to personal health and wellness is now. Today. Take a long, hard look in the mirror and find your best friend—the one individual who has the greatest influence over your health and well-being. And take a look around you, at the many blessings you enjoy, taking none of it for granted. Family, friends and loved ones alike, they all have a stake in your successful quest to live life to its fullest potential. Why? Because there is no greater gift than the gift of life. Treasure it, protect it, and make the most of it. And remember, you only get one body. Russell Rawlings (rrawlings@ncbar.org) is Director of Communications with the North Carolina Bar Association.
This article originally appeared in the Winter 2016-17 edition of the National Association of Bar Executives (NABE) Communicators Talk newsletter and is reprinted here with permission. 34 SAN DIEGO LAWYER January/February 2017
Wellness Sidenote:
Take a look at these motivating fun facts and statistics:
The American Heart Association recommends150 minutes of moderate activity per week. That's: 30 minutes (or three 10-minute periods) of activity per day, at least 5 days a week1 Other health benefits: 20% reduced risk of stroke in moderately active people1 27% reduced risk of stroke in highly active people1
Feeling anxious or depressed? Try sweating it out.1 1 session of 25 to 60 minutes of exercise increases positive feelings and decreases negative feelings. Antidepressive effects have been observed after 4 weeks of exercise; the greatest antidepressive effects occur after17 weeks. Just 5 minutes of cardio stimulates anti-anxiety effects. 1 2
http://www.heart.org/HEARTORG/HealthyLiving/PhysicalActivity/StartWalking/Physical-activity-improves-quality-of-life_UCM_307977_Article.jsp http://www.ideafit.com/fitness-library/benefits-of-exercise
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Work-life balance:
HOW LOCAL LAWYERS AVOID BURNOUT By Joshua Bonnici
“You will never feel truly satisfied by work until you are satisfied by life.” —Heather Schuck, The Working Mom Manifesto
L
awyering is tough: endless client calls and emails; opposing attorneys scheduling ex parte hearings every week; the never-ending cycle of discovery deadlines.
But you knew all of that. You live it everyday. What are you doing, however, to make sure you’re fresh and sharp for each new challenge? Lawyer burnout is real, but many local legal professionals have found ways to combat legal fatigue. A recent National Institute for Occupational Safety and Health study found that male lawyers were more likely to turn to suicide than other professionals. In 1990, Johns Hopkins University examined more than 100 occupations for anxiety-related issues; it found that lawyers suffered from depression 3.6 times more than the other professions studied. So how are San Diego lawyers combating the day in, day out stress of practicing law? In December, I rode my bike 170 miles in two days. Seriously. My bicycle. I participated in a local century ride (105 miles in one ride) and then a “metric” century (100 kilometers, or about 65 miles). The first I did with a fellow lawyer, and the other with a professional referral source. But what’s the main reason I ride? When I’m on the bike, my mind is clear: no emails, no phone calls, no interns with questions about discovery responses. The simplicity of pedaling, breathing and avoiding the occasional car reinvigorates mind and body. I’m fresh in the office for the next week. My staff can always tell when I haven’t had my weekly ride; I’m not as energetic on projects or as patient with clients.
Top to bottom: Löan Shillinger. Joshua Bonnici, Hon. Timothy Taylor, Eric Ganci
Local estate planning attorney Löan Shillinger has a similar approach. She uses trail running not only to connect with other runners, but after to get to her quiet place. As the principal attorney at Shillinger Law, and a mother of two, she rarely has quiet time to recharge or streamline her focus on a difficult case. “I have always been active, but needed something I could do for a quick 30-minute jaunt, or all day, depending on what my schedule would allow.” Since taking up trail running in late 2015, she has joined the SD Dirt Devils (a SoCal distance trail running group), started her own Dirt Devils Meetup for trail runners at Balboa Park, and has completed a 50K trail run in Marin County. She’s currently training for a 50-mile trail run this year in Arizona. “There’s nothing like only focusing on putting one foot in front of the other on a trail in the middle of the woods, with fresh air, beautiful scenery and no cell reception. I can quiet my mind from a stressful week, or hone-in on a big case that may need extra attention. As a business owner and mother, it’s necessary—for my sake and my family’s—to get my running time in.” January/February 2017 SAN DIEGO LAWYER 37
Sometimes it’s exercising the mind more than the lungs. DUI lawyer as possible when on the bench. His method of recharging? “I wake Eric Ganci, with Ganci, Esq., APC, finds escape in a different route. up at 5 a.m. every morning and go for a run on the beach,” said “When I’m drumming, I’m keeping the creative side of my brain Hon. Taylor. He appreciates the quiet time as much as the physical alive, and feeding my ‘former life’ before the law.” Ganci, with a activity, which is important as he sits nearly all day. For his major degree in percussion from Northern Illinois University, enjoys recharge-time, he goes fly-fishing, where he can enjoy the playing the drums with a local live karaoke band called outdoors with minimal distractions. ROK (Rock Out Karaoke). Playing reminds him of his Keeping fresh (mentally and physically) is a must first passion, drumming, and also connects him with today’s always-connected legal landscape. with friends on a musical level. “Communicating “Keeping fresh Unplug, disconnect, get out and feed your with my bandmates onstage during a set, (mentally and passion! without talking, recharges me,” said Ganci. physically) is a must with When asked about how he finds time to Still struggling with burnout and think play gigs, while running a very busy DUI today’s always-connected it’s affecting your ability to practice law? practice in San Diego, he said: “You don’t Ask a close colleague or mentor for some legal landscape.” find time, you make time. Sometimes I sacrifice advice. Or for anonymous help, check out sleep for drumming, but I’m a more focused resources at the American Bar Association's website: lawyer when I get my drumming time in.” Check out www.americanbar.org/groups/lawyer_assistance.html. www.rockoutkaraoke.com to see Eric play live at a venue near you. You’ll be glad you did. Whatever you do, be proactive and make a change today. Staying sharp and avoiding burnout doesn’t only happen on the lawyer’s side of the bar; judges have to stay focused every day too. I sat in Judge Timothy Taylor’s chambers, discussing how some local lawyers refresh their minds. “Being a lawyer is one of the most important occupations on the planet. It’s a serious job, where a lawyer must pour their absolute best effort into every case as if it were their own.” Judge Taylor prides himself on being as focused
Whether it’s riding your bike 100 miles in a day, playing drums while a stranger belts out a rock ballad or fishing in the middle of a National Park miles from any other person, find an outlet and stay focused. Our profession, and your health, depends on it. .Joshua Bonnici (josh@bonnicilawgroup.com) is managing attorney with Bonnici Law Group, APC.
T TECHNOLOGY Continued from page 11 previous two months. You figure! Although hard to believe, that report suggests that we are all capable of a similar oversight. Arguments against encryption in place have asserted inconvenience or slowed computer performance. There is marginal validity in those comments, but neither justifies a failure to protect confidential information by encrypting it in place.
If we use software services in the cloud such as Office 365 or cloud storage, we must also ensure that client confidential data is similarly encrypted. Who holds the keys to decryption? Are we reasonably maintaining confidentiality if the storage site knows how to decrypt the data? There is substantial how-to information available on the internet, and the ABA has published several books that go into substantial detail about many of these issues. The best may be Locked Down (ABA 2016), also available on Amazon. Going forward, there may be no excuse for attorneys who failed to implement a reasonable, complete program of encryption in place on all forms of storage and all types of devices and computers.
“Who holds the keys to decryption?”
The particular methods of encryption available to different operating systems and different devices cover a sufficiently large number of alternatives that won’t fit into a single column. But attorneys with iPhones know that the contents of the iPhones are encrypted; owners of Macs know that they can turn on FileVault and encrypt the contents of those computers; and Windows users have had the BitLock encryption tool available in most recent versions of that operating system. Owners of Android devices have not been left out. Google introduced full-device encryption in 2010 and has improved it in subsequent versions of its operating system. 38 SAN DIEGO LAWYER January/February 2017
Bill Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP.
100 PERCENT CLUB 2017
The San Diego County Bar Association’s 100 PERCENT CLUB is a special category of membership that indicates an outstanding commitment to the work done through SDCBA programs and services in the legal profession and the community. The following firms (five or more lawyers) are members of the 100 PERCENT CLUB for 2017, having 100 percent of their lawyers as members of the SDCBA.
Allen, Semelsberger & Kaelin, LLP Andrews Lagasse Branch & Bell LLP Antonyan Miranda, LLP Artiano Shinoff & Holtz* Atkinson, Andelson, Loya, Ruud & Romo Austin, Brownwood, Cannon & Santa Cruz Balestreri Potocki & Holmes* Basie & Fritz* Beamer, Lauth, Steinley & Bond, LLP Belsky & Associates Bender & Gritz, APLC Bernstein Litowitz Berger & Grossman LLP* Best Best & Krieger, LLP Blackmar, Principe & Schmelter APC Blanchard Krasner & French Bonnie R. Moss & Associates Brierton, Jones & Jones, LLP Brown Law Group Buchanan Ingersoll & Rooney PC Butterfield Schechter LLP Butz Dunn & DeSantis APC* Carothers DiSante & Freudenberger LLP Casey Gerry Schenk Francavilla Blatt & Penfield, LLP* Christensen & Spath LLP Circuit McKellogg Kinney & Ross, LLP Cohelan Khoury & Singer Contreras Law Firm Daley & Heft, LLP D’Egidio Licari & Townsend, APC Del Mar Law Group, LLP Dentons US LLP Dietz, Gilmor & Chazen APC District Attorney’s Office* Duckor Spradling Metzger & Wynne* English & Gloven APC Epsten Grinnell & Howell, APC Erickson Law Firm APC Farmer Case & Fedor* Ferris & Britton, APC Finch, Thornton & Baird, LLP Fischer & Van Thiel, LLP Fleischer & Ravreby Fragomen, Del Rey, Bernsen & Loewy, LLP* Frantz Law Group APLC Fredrickson, Mazeika & Grant, LLP* Gatzke Dillon & Ballance LLP Gomez Trial Attorneys Goodwin Brown Gross & Lovelace LLP GrahamHollis APC Green Bryant & French, LLP* Grimm, Vranjes & Greer, LLP* Hahn Loeser & Parks, LLP Henderson, Caverly, Pum & Charney LLP Higgs Fletcher & Mack LLP* Hooper, Lundy & Bookman, PC Horton, Oberrecht, Kirkpatrick & Martha, APC* Hughes & Pizzuto, APC Jackson Lewis PC Judkins, Glatt & Hulme LLP* Johnson, Greene & Roberts LLP 10+ years as 100 Percent Club
*
Kirby & McGuinn APC Klinedinst PC Koeller, Nebeker, Carlson & Haluck, LLP Konoske Akiyama | Brust LLP Kriger Law Firm Law Offices of Beatrice L. Snider, APC Legal Aid Society of San Diego, Inc.* Lincoln Gustafson & Cercos LLP Littler Mendelson PC Lorber, Greenfield & Polito, LLP* Men’s Legal Center Family Law Advocates Miller, Monson, Peshel, Polacek & Hoshaw* Moore, Schulman & Moore, APC Musick, Peeler & Garrett LLP Naimish & Lewis Law Neil, Dymott, Frank, McFall & Trexler APLC Noonan Lance Boyer & Banach LLP Office of the San Diego City Attorney Olins Riviere Coates and Bagula, LLP Oliva & Fanning, ALC Parker Straus, LLP Paul, Plevin, Sullivan & Connaughton LLP* Peterson & Price, APC Pettit Kohn Ingrassia & Lutz PC Pope, Berger, Williams & Reynolds, LLP Preovolos Lewin & Hezlep, ALC Procopio, Cory, Hargreaves & Savitch LLP Pyle Sims Duncan & Stevenson APC RJS Law Rowe | Mullen LLP Sandler, Lasry, Laube, Byer & Valdez LLP Schwartz Semerdjian Cauley & Moot LLP Selman Breitman, LLP Seltzer | Caplan | McMahon | Vitek ALC* Sheppard, Mullin, Richter & Hampton LLP* Shoecraft Burton, LLP Shustak Reynolds & Partners, PC Siegel, Moreno & Stettler, APC* Simpson Delmore Greene LLP Smith, Steiner, Vanderpool & Wax, APC Solomon, Grindle, Silverman & Wintringer, APC Solomon Minton Cardinal Doyle & Smith LLP Solomon Ward Seidenwurm & Smith, LLP Stoel Rives LLP Stokes Wagner, ALC Sullivan Hill Lewin Rez & Engel Summers & Shives, APC Thorsnes Bartolotta McGuire LLP Walsh McKean Furcolo LLP Ward & Hagen LLP White, Oliver & Amundson, APC Wilson Elser Moskowitz Edelman & Dicker LLP* Wilson Turner Kosmo LLP Winet Patrick Gayer Creighton & Hanes Wingert Grebing Brubaker & Juskie LLP Witham Mahoney & Abbott, LLP Withers Bergman LLP Wright, L’Estrange & Ergastolo Zeldes Haeggquist & Eck, LLP
Sustaining Members The San Diego County Bar Association gratefully acknowledges its Sustaining Members.
PATRON MEMBERS Marc D. Adelman Jose S. Castillo Steven Coopersmith Ezekiel E. Cortez William O. Dougherty James P. Frantz Van E. Haynie Rhonda J. Holmes Richard A. Huver Laura H. Miller Misty Moore Gerald S. Mulder Todd F. Stevens Thomas J. Warwick Jr. Andrew H. Wilensky BENEFACTOR MEMBERS Doc Anthony Anderson III Jedd E. Bogage Steven T. Coopersmith Alexander Isaac Dychter Douglas A. Glass Alvin M. Gomez J. William Hinchy Jr. Philip P. Lindsley FRIEND MEMBERS Laura Ashborn Steven Barnes Robert Baumer Edward V. Brennan Scott Carr Linda Cianciolo David B. Dugan Susan K. Fox Kenneth N. Greenfield Ronald Leigh Greenwald Allen Gruber Ajay K. Gupta Daniel A. Kaplan Mark Kaufman Marguerite C. Lorenz Robert E. McGinnis Joseph Jay McGuire Raymond J. Navarro Justin Nielsen Anthony J. Passante Jr. Anne Perry Kristi E. Pfister Michael Roberts Ralph T. Santoro Jr. Stella Shvil Janis Stocks January/February 2017 SAN DIEGO LAWYER 39
Distinctions
Individuals and organizations in our community were recently honored for a variety of achievements. The following is a list of recent community recognitions:
Hon. William Dato of the San Diego Superior Court was appointed to serve on the bench for the 4th District Court of Appeals.
Hon. Carolyn Caietti of the San Diego Superior Court was honored with the Wilmont Sweeney Juvenile Court Judge of the Year Award by the California Judges Association.
Crosbie Gliner Schiffman Southard & Swanson LLP partner Dawn Saunders was recently elected to the Board of Directors for NAIOP, the Commercial Real Estate Development Association.
U.S. Attorney Laura Duffy, San Diego County District Attorney Rachel Cano, Schor and Freeland LLP partner Cynthia Freeland and San Diego deputy public defender Maryann D'Addezio Kotler were appointed as judges for the San Diego Superior Court.
Klinedinst PC and Heather Rosing, Klinedinst CFO and shareholder, were recently honored with the Earl B. Gilliam Bar Foundation's 2016 Corporate Commitment to Diversity Award.
Hon. Clifford Wallace was honored with the A. Sherman Christensen Award from the American Inns of Court.
Deputy District Attorney and newly elected SDCBA board member Christopher Lawson was recently named Prosecutor of the Year by the San Diego County Board of Supervisors.
Attorney Linda Cianciolo was honored with The Norby Award from the San Diego Family Law Bar Association.
40 SAN DIEGO LAWYER January/February 2017
Klinedinst attorney Nadia Bermudez also received an honor by being appointed to the Hispanic National Bar Association's Latina Commission.
Melinda Caterine and Theodore Scott, shareholders with Littler, were named Class of 2016 Fellows in the College of Labor and Employment Lawyers.
Sheppard, Mullin, Richter & Hampton LLP associate Whitney Hodges was recently honored with the firm's 2016 Bob Gerber Pro Bono Attorney of the Year Award.
Passings Karl Gruben, professor of law with University of San Diego (USD) School of Law, passed away in November. He was also Associate Dean, Library and Information Services for USD School of Law.
Ludlow Butler of Butler & Butler passed away on October 3. He was licensed to practice law in California in 1965.
Debra Hurst, attorney with Hurst & Hurst and contributor to San Diego Lawyer, passed away in December. Debra practiced law for 34 years, and was honored as San Diego Trial Attorney of the Year three times. She graduated from the University of San Diego School of Law.
Hon. Norbert Ehrenfreund (Ret.) passed away in December. He was appointed to serve on the San Diego Superior Court bench in 1975. Hon. Ehrenfreund was featured in the September/October 2012 issue of San Diego Lawyer. Read the profile at www.sdcba.org/SDLEhrenfreund.
To submit information regarding honors of a community or civic nature, or passings in the legal community, email bar@sdcba.org.
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Legal Help to 12 Local Nonprofits San Diego County Bar Foundation Awards $100,000 in Grants
T
he San Diego County Bar Foundation (SDCBF) awarded a total of $100,000 to 12 San Diego nonprofit organizations that offer legal services and public service programs that promote understanding of the legal system to county residents as part of its 2016 Grant Cycle. SDCBF, the charitable arm of the San Diego County Bar Association, provides access to justice by investing in results and advocacy for people and communities in our region impacted by poverty, abuse and discrimination. With the help of an independent board of leading local attorneys and businesspeople, SDCBF selected 12 organizations, out of 23 requests, to award based on eligibility and need. “The money directly helps those without access to the legal community, and it will benefit hundreds of children, elderly, domestic violence victims, immigrants and veterans in San Diego,” said Brent Douglas, president of SDCBF’s board of directors. The foundation’s funds come from contributions from the local legal and business communities and from fundraising programs throughout the year, including its signature “Evening in La Jolla” benefit.
Community Resource Center—$2,500 in support of a legal advocacy program that provides legal assistance and education for domestic violence survivors in San Diego’s North County. crcncc.org Elder Law & Advocacy—$15,000 granted to support general operation and conduct 100 informational presentations to lowincome seniors. seniorlaw-sd.org Jewish Family Service of San Diego—$4,000 to assist underserved, eligible lawful permanent residents in becoming naturalized citizens. jfssd.org
“The money directly helps those without access to the legal community, and it will benefit hundreds of children, elderly, domestic violence victims, immigrants and veterans in San Diego.”
SDCBF’s Grant Review Committee carefully reviewed each 2016 grant application, conducted site visits and selected the grant recipients based on the SDCBF’s mission and guidelines. The 2016 grant awards were given to: California Rural Legal Assistance—$5,000 to provide legal services and inform migrant farmworkers of their rights on how to protect and empower themselves, including employment, housing and Supplemental Security Income. A first-time SDCBF grant recipient. crla.org Casa Cornelia Law Center—$10,000 granted in operating funds to provide sustained and responsive legal services to the indigent immigrant community. casacornelia.org Center for Community Solutions—$10,000 to support a legal services program for victims of domestic violence and sexual assault. ccssd.org Community Law Project (California Western School of Law) —$7,500 granted for pro bono legal services and community education to low-income and indigent families in San Diego County. cwclp.org
Karen Organization of San Diego—$7,500 to provide additional advocates for legal cases of Burma refugees. karensandiego.org Legal Aid Society of San Diego—$7,500 to continue needed civil and elder abuse temporary restraining order services for lowincome San Diegans. lassd.org San Diego Family Justice Center Foundation—$7,500 to form a Legal Center that will provide step-by-step legal assistance to victims of domestic violence, child abuse, stalking and sexual assault. sdfjcfoundation.org
San Diego Volunteer Lawyer Program—$17,500 to support the Family Law Project, which provides free legal assistance to lowincome individuals in their family matters, with priority placed on cases involving domestic violence. sdvlp.org Think Dignity—$5,000 to fund a part-time clinic attorney to assist homeless youth with legal services, deliver educational materials to the indigent and provide quarterly community legal education clinics. thinkdignity.org Since beginning its grant program in 1979, SDCBF’s beneficiaries have included more than 50 legal aid and public interest organizations, and has granted more than $2 million in funding. The next grant cycle will begin in June 2017. To further support its mission, SDCBF is currently running a “Give an Hour” campaign, which encourages local attorneys, judges, legal professionals and community members to donate the monetary equivalent of one hour of their billable time, or any other amount desired. Donations may be tax-deductible, and can be one-time or recurring. For more information about the San Diego County Bar Foundation, or to make a donation, visit www.sdcbf.org. January/February 2017 SAN DIEGO LAWYER 43
SDCBA Law Practice Management Partners Your SDCBA membership offers you a wide variety of member-only benefits and discounts from the following providers
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PHOTO GALLERY STEPPING UP TO THE BAR Photos by Douglas Gates Photography SDCBA members gathered for the Association's annual holiday celebration on December 2. The installation ceremony for the SDCBA's 2017 Board of Directors took place at the event, where Loren Freestone was also introduced as 2017 Bar President.
Loren Freestone
L-R: Angela Medrano, Anna Monguia, Manuel Monguia, Marissa Walter
Thank you to event sponsors Antonyan Miranda; Westlaw; Manuel Valdez and Manny Valdez; Torrey Pines Bank; Abacus Data Systems; AHERN Insurance Brokerage; NAI San Diego; and Judicate West.
Darnell Donahue, Jonah Toleno
Hon. Jeffrey Barton and the 2017 SDCBA Board of Directors
Hon. David Rubin, Loren Freestone
Ted Holmquist, Ariel Javier January/February 2017 SAN DIEGO LAWYER 45
PHOTO GALLERY LAWYERS CLUB OF SAN DIEGO ANNUAL HOLIDAY LUNCHEON Photos courtesy of Lawyers Club of San Diego On December 8, Lawyers Club of San Diego hosted their annual Fund for Justice Holiday Luncheon at the US Grant Hotel.
L-R: University of San Diego School of Law Dean Stephen Ferruolo; Janice Tang; Nakisha Sandy; Aileen Shepherd; Thomas Jefferson School of Law Vice Dean Linda Keller; California Western School of Law Assistant Dean, Student & Diversity Services Susan Finster
Johanna Schiavoni, Deborah Dixon
CONSUMER ATTORNEYS OF SAN DIEGO ANNUAL MEMBERSHIP MEETING & HOLIDAY MIXER Photos courtesy of CASD
Sean Sanders, Christopher Walton
L-R: Amy Lepine, Manny Valdez Jr., Dene’ Jones
L-R: Lisa Ah Wah, Jim Iagmin, Sarah Havens, David Munoz, Jenna Mitchell, Robert Ryan
Consumer Attorneys of San Diego hosted their annual membership event at Seasons 52 on December 8.
L-R: Margie Smith, Paul Zimmer, Yesenia Lozoya
ADVERTISERS INDEX ADR Services, Inc......................................... 36 AHERN Insurance........................................ 5 CaseyGerry .................................................... 3 Estey Bomberger............................................... 8 First Republic Bank............................................. 10 Fragomen, Del Rey, Bernsen & Loewy, LLP.. 24 Gomez Trial Attorneys............................. 16 46 SAN DIEGO LAWYER January/February 2017
Hahn Loeser................................................... 35 Judicate West ............................................... 41 Kathryn Karcher........................................... 27 Law Office of Steven C. Vosseller...... 12 Law Office of Stacie L. Patterson....... 6 LawPay.............................................................. 15 Lawyer Referral & Information Service..18 Noonan Lance Boyer & Banach LLP.......14
Panish Shea & Boyle LLP...................................47 Pokorny Mediations............................................. 2 San Diego County Bar Foundation ........42 StoryCloud...................................................... 28 Todd Bulich Real Estate Company...........48 West Coast Resolution Group............. 6 Wilson Turner Kosmo LLP...................... 32
We don’t just settle cases
WE TRY THEM & WIN BIG. Largest Verdict
in North County San Diego Superior Court History
Largest Wrongful Death Verdict in Central District of California, U.S. District Court
Largest Wrongful Death Award
in Southern District of California, U.S. District Court
Largest Wrongful Death Verdict
for Death of Child in Orange County Superior Court
Largest Number of 8-Figure Verdicts of any law firm in California
Referrals - It’s a matter of dollars and sense. The attorneys of Panish Shea & Boyle LLP have obtained some of the most significant verdicts and settlements in U.S. History - often setting records with their trial results. With more than fifteen 8-figure verdicts in the last 5 years, no other California firm wins this big as often as Panish Shea & Boyle LLP. Our presence on a case delivers maximum benefits and recovery, both to the client and the lawyer who refers the case. You’ll get the resources, experience and skills needed to win the most complex cases for individuals who have suffered injury from the wrongful acts of others. The firm handles third party cases and joint ventures with attorneys who want to stay more actively involved. Contact Panish Shea & Boyle LLP today to discuss how we may assist you.
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310.477.1700
877.800.1700