San Diego Lawyer May/June 2018 by San Diego County Bar Association

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MAY/JUN 2018

2018 SERVICE

Virginia Nelson Outstanding Attorney

Candace Carroll Outstanding Attorney

Hon. David Bartick Outstanding Jurist (Awarded Posthumously)

AWARD WINNERS

Wendy Behan Service to the Legal Community

Alvin Gomez Service to the SDCBA

Jonah Toleno Service to Diversity

Jimmy Tabb Community Service

Michelle Ialeggio Service by a Public Attorney

PLUS

Jamie Quient Outstanding Service by a New Lawyer

How We Develop Business Rewriting the Rules of Professional Conduct

Leading the Way

We are proud of the continued recognition of our attorneys for their outstanding results for our clients, contributions to the civil justice system and involvement in our community. Recent awards include David S. Casey, Jr. as a 2018 California Lawyer Attorney of the Year (the “CLAY Award”) and Robert J. Francavilla as the 2016 Trial Lawyer of the Year by the Consumer Attorneys of San Diego.

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CONTENTS

Page

Features 22

Community Service All-Stars Inspiration and advice from this year's Service Award winners.

Teaching Lessons Students rewrite the rules of professional conduct on a blank slate. By Edward McIntyre

Columns 34

Ditching Online for In-Person Building connections and business offline and in-person: old-fashioned or overlooked? By Whitney Skala

Bartering for Business From haircuts to paintings, how and what I bartered for my legal services. By Elizabeth Blust

Shattering Expectations AI and Real World Ethics When employees' bad behavior gets Ethics and technology posted on social media. on the cutting edge. By Hali Anderson By Edward McIntyre

Growing Your Network & Your Business The importance of being a great lawyer and a great networker. By Teresa Warren

Why I Belong Get to know SDCBA member Edward Castro.

Deans Listening to the wisdom of a law student. By Stephen Ferruolo

President's Feature Our mission to define our mission. By Kristin Rizzo

Tips How a proactive mindset helps your practice prosper. By Ken Turek

Open Dialogue The People v. X — a case in civility. By Christine Pangan

Technology Recent events serve as cautionary reminders. By Bill Kammer

In the Race How racing cars helps me keep my practice on track. By Jenifer Swanson

Getting Your News from Twitter Tips from a reporter.

Ethics Could a robot do this? By Edward McIntyre

Distinctions

SDVLP Understanding the “difficult” pro bono client. By Amy Fitzpatrick

Photo Gallery

Issue no. 3. 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 © 2018 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.

May/June 2018 SAN DIEGO LAWYER 5

501 West Broadway Suite A174

WHY I BELONG THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

Edward Castro

Law Offices of Beatrice L. Snider, APC

Co-Editors Edward McIntyre Christine Pangan

Editorial Board Elizabeth Blust George Brewster Jr. Jeremy Evans Mike Finstad Victoria Fuller Renée Galente

Julie Houth Michael Olinik Whitney Skala Aleida Wahn Mike Wakshull Teresa Warren

SAN DIEGO COUNTY BAR ASSOCIATION

Executive Director & Chief Executive Officer Ellen Miller-Sharp

Director of Outreach Strategy & Chief Communications Officer Karen Korr

Graphic Designer/Webmaster Attiba Royster

Publications Editor Jenna Little

Marketing Coordinator Sasha Feredoni

Follow San Diego Lawyer! sandiegolawyermagazine @SDLmagazine

Education: I obtained a Bachelor’s Degree from Yale University in 1982, and a Juris Doctor from the University of San Diego School of Law in 1993. I became a Certified Specialist in Family Law California State Bar of Legal Specialization in 2005. Area of practice: Family law. Proudest career moments: 1) In or about 1996, I became the supervising attorney for the Family Law Access Project at the Family Court. This program, which preceded the current Facilitator's Office, provided assistance to unrepresented litigants through the Family Court system. 2) In or about 2000, I joined the YWCA Legal Advocacy Program for the Prevention of Domestic Violence. This program provided direct legal representation to victims of domestic violence. I acted as senior counsel and litigator for that program. 3) In 2014, being named a Partner with the Law Office of Beatrice L. Snider, APC. Family: My daughter and my chosen family — the most important family of all (they know who they are). If I weren’t an attorney, I’d be working in the public service sector, helping those individuals who need help, deserve help, and do not have the wherewithal to completely help themselves. The best thing about being an attorney is watching the performance art of the profession. I especially enjoy watching the true artists, those who love the profession and continuously strive to improve, knowing that achieving mastery of the profession is illusory. Hobbies: Game theory, hardwired into my head sometime when I was a child, probably around the time that I first heard the quote: “Mathematics is the language in which God has written the universe”, which also is hardwired into my head. Favorite book: Childhood’s End (Arthur C. Clark) for showing me at an early age that we are all just limited by where our imagination takes us, and Beneath the Wheel (Hermann Hesse) for showing me that limits on the imagination are sometimes a good thing. Best concert you’ve ever been to: Simon & Garfunkel, Fall 1981, Central Park. As concerts go, this one felt like a moment in time. Most fun SDCBA meeting: Bench-Bar Reception, which after 25 years of practice, feels like a gathering of old friends, an opportunity to meet new friends, and an opportunity to share remembrances about friends now absent.

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.

FOR ADVERTISING INFORMATION, CONTACT LAURA TARABINI AT (760) 415-7030 OR LTARABINI@YAHOO.COM, OR VISIT WWW.SDCBA.ORG/ADVERTISING.

What one skill has helped you be successful as an attorney? I thrive in an environment of diffused focal points. I am not sure that it is a teachable trait, but if it is, you may want a mental health professional on stand-by. In the alternate, to better your practice, learn to be a good listener, learn that you do not need to win every argument to become a better lawyer, and learn that you do not need to try to demonstrate that you are the smartest person in the room. Do you have a mentor? Three come to mind: 1) Bruce Beals, who demonstrated the type of lawyer I aspired to become; 2) John Romaker, for generously sharing with me all wisdom not otherwise family law related; and 3) the late Brad Westerfield who placed me on the path that has led me to where I am. What would you most like to be known for? I would like to be known for effective trial advocacy in family law matters and caring for the claimants I represent.

May/June 2018 SAN DIEGO LAWYER 7

BY STEPHEN FERRUOLO DEANS

Stephen Ferruolo

Rankings: Listening to the Wisdom of a Student

uring the two decades I practiced law, I never paid much attention to the rankings of universities, colleges and graduate schools in U.S. News and World Report (U.S. News). Frankly, I could not imagine that anyone would take these rankings seriously. As a partner actively involved in the hiring process for two Am Law 50 national law firms, the head of the business practice in the San Diego office of one of these firms and managing partner of the other, I judged the qualifications of job applicants on their personal accomplishments and the reputations of law schools on the achievements of their graduates. When I became dean, it was a surprise to me that these unscientific rankings mattered so much to many students, faculty and alumni, and even to university administrators, when they mattered so little to legal employers. The issue of U.S. News rankings became all the more troublesome to me when I saw the negative impact that playing the rankings game was having on law schools, in causing them to compete based on expenditures, rather than outcomes, and granting scholarship support not on the basis of financial need but “merit” (largely LSAT scores), both of which have adversely impacted accessibility to, and the affordability of, legal education.

Since 2011, when I became dean, USD School of Law’s annual rankings have fluctuated, for reasons that are largely impossible to explain and that bear little relation to anything substantive that has been happening at the law school. This year, we experienced a more significant decline in the rankings. In this instance, there does appear to be an explanation for the decline: the 10-month postgraduation employment data we reported for the class that graduated in 2016. Since then, however, we have seen significant improvements in our employment

outcomes, as shown in the data recently reported for our class of 2017 graduates, as well as continuing improvement in our bar passage results, neither of which is reflected in the 2019 rankings. Moreover, our graduates’ job status 10-months postgraduation does not accurately reflect the longer-term employment outcomes we see our students achieve in the highly competitive legal market in San Diego, where most of them seek and find desirable positions.

“[...] it was a surprise to me that these unscientific rankings mattered so much to many students, faculty and alumni, and even to university administrators, when they mattered so little to legal employers.” Every year, after the rankings are released in March, there are numerous commentaries questioning the value and validity of the rankings, with critics often pointing to the irrelevance of the criteria and flaws in the methodology. This year, there was extra controversy because of the arbitrary decision of U.S. News to remove Pepperdine University School of Law completely from the 2019 rankings due to a data reporting mistake. This may be the most blatant example of the utter foolishness of relying on any one ranking in any one year, but many more examples of such anomalies could be cited. My thoughts about using this as an opportunity to join those publicly railing against the rankings changed when I received the following email from one of our first-year students: “Normally, I keep my opinions fairly well to myself. However, I still hear percolations

over the whole U.S. News debacle, so I thought I would add my two cents to the discussion because, if there’s one thing I learned as a writer and the sometime recipient of public vitriol, it’s that people often remain silent over positivity when they might get vocal for negative reasons. I do not know if one student’s perspective means much, but, for what it’s worth, you can rest assured that I do not care all that much about the U.S. News rankings. USD can go up or down, and it won’t change my opinion of the school. “I also did not care all that much when I chose my law school. I visited a lot of law schools, and USD had the best atmosphere . . . I thought then, and continue to believe, that this law school fosters a more collegial attitude toward the study and practice of law. It’s not as if USD students are a bunch of softies — certainly no shortage of ultracompetitive gunner kids here — but I get the sense that the students generally are less in it for themselves than students at [some other law schools]. I also believe that same collegiality is becoming an ever scarcer commodity in the world. In many ways, the ruthlessly competitive aspect of law school generally, which the U.S. News rating system supports, does more harm than good to the psyches of future lawyers. If more law students and lawyers thought about values that aren’t measured directly in dollars, we might live in a happier world generally. “In short, I would say USD was and is a great school, and I know there are plenty of prospective students who will share that view. U.S. News can go pound sand.” Thank God for the wisdom of students. Stephen Ferruolo (sferruolo@sandiego.edu) is dean of the University of San Diego School of Law.

Opinions expressed in this article are those of the author only and are not opinions of the SDCBA or the San Diego Lawyer Editorial Board. May/June 2018 SAN DIEGO LAWYER 9

OuR Mission to Create OuR new Mission StatemenT The SDCBA does a great many things for our large and diverse membership, and our Mission Statement guides the vision and goals of who we are and who we strive to be. We recently undertook efforts to revise our Mission Statement to ensure that it represents the scope and direction of our organization. The Strategic Framework Working Group, a Board-level committee, chaired by Secretary Frank Barone, put forward and received Board approval on a new Mission Statement that we believe speaks to the strength of the SDCBA and will guide our Association into the future. Without further ado, here is our new Mission Statement: Inclusion and community define us. Innovation and leadership propel us. Your growth motivates us. Celebrating you and the profession is us. And that is the SDCBA, in a nutshell — who we are as a community now, and who we strive to be in the future, as we continue to advance as an organization with the evolving needs of the profession. Paramount to developing our new Mission Statement was figuring out our core values — what the Association stands for and why we do what we do. The committees involved in this process (along with the Board of Directors) spent myriad hours discussing this, and carefully weighing words to ensure that we were defining ourselves in a way that rang true universally. We’re proud to announce that this is where we landed with our core values and how we defined their meaning for the SDCBA: Community: Building meaningful, lasting connections. Inclusion: Everyone is invited and welcome. Innovation: At the forefront of change. Leadership: Leading the way for the profession. Celebration: Celebrating each other and the profession. Growth: Growing your practice, business, and brand. We’re finding ourselves in a new era at the Bar — one in which everything we do is with these values in mind. In the coming months, you’ll see us incorporate our new Mission Statement and core values into our print and electronic materials from the SDCBA, but more importantly, we’ll be incorporating them into all that we do to serve you, our members, and collectively, San Diego’s legal community. Many thanks to all who contributed to this process, and to all of you who inspire us consistently to review, re-examine, evolve, and move our organization forward. Best regards,

Kristin Rizzo 2018 SDCBA President

Inclusion and community

DeFiNe us Innovation and leadership

pRopel us your growth

MoTivaTes us Celebrating you and the profession

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BY BILL KAMMER

TECHNOLOGY

Technology Gumbo Recent events serve up cautionary reminders here have been many recent developments deserving mention, but singling out one for full-column treatment doesn’t make sense. Better to give each a brief mention. For instance, in mid-May, the FBI warned of a compromise that involved Russian malware inserted into home and small office routers. Perhaps 900,000 units were affected, and they include ones manufactured by prominent companies such as Linksys and Netgear. The malware can collect information by reading all internet activity on the network including login credentials. The FBI and security firms urgently recommend owners reboot their routers to avoid problems. Although Apple products do not appear to be implicated, good advice would probably be for everyone to reboot their routers now, ensure all updates are installed, and effective passwords are being used.

Similarly, security firms recently reported that they had found malware in the firmware of 141 low-cost Android smartphones and tablets. Though these crooks appear to be interested in generating click-revenue by inserting ads, still the malware is a problem to be dealt with. Many attorneys and staff members have network access to confidential information, and at least some may have low-cost phones that could be infected. This is another threat to our obligation to keep secret the sensitive and confidential information we possess and store. Passwords remain a continuing problem because users still prefer simple, easy-toremember passwords. The popularity of

passwords such as “123456” and “password” itself has declined, but many still continue to use them. There have been many compromises of substantial databases of confidential information that now reside on the dark internet. haveibeenpawned.com is the recommended check for the compromise of your email address, but now its author, Troy Hunt, has launched a companion site to determine whether a password has ever been compromised, regardless of who was using it. The website, haveibeenpawned. com/passwords, operates against a base of over 500 million pwned passwords. The National Institute of Standards and Technology (NIST), the federal agency, recommends that network owners check all passwords of staff and employees against that database. If a password in current use is in that database, the owners should insist on a change. None will provide a perfect defense, and we should use a layered security barrier. Most recommend password managers, VPN’s such as TunnelBear, and two-factor authentication. The most popular password managers remain LastPass and 1Password. 2FA is mandatory in many law offices and on many financial websites. You login with your password and request a code sent to your mobile device or dongle. Subsequent entry of that code at the visited website allows full access to the sensitive and financial information located there. You may have noticed recent, frequent requests to update your mobile device applications and to respond to messages requesting confirmation of your email subscriptions and preferences. Most of us

routinely accept the terms and conditions we are presented with. However, these recent requests result from the May 25 effective date of the GDPR, the European mandate for protecting private information and to ensure its judicious collection and storage. Any company such as Facebook or Twitter with worldwide operations is requesting permission and updating applications from all their worldwide users. Although the primary emphasis of GDPR is the protection of the information of European citizens, slowly but surely, its provisions will affect internet, storage, and mailing list protocols in the U.S. Moreover, after the Facebook debacle, there is already renewed American interest for the establishment of data protection protocols, providing us all with the privacy of information we probably expected but never received. Commentators advise us to read carefully the content of the recent permission requests. Careful review may make you wonder why a flashlight app wants access to your address book or calendar information. We’ve discussed before the Internet of Things, the internet linking of devices such as baby cams, Ring doorbells, Nest thermostats, home speakers, and voiceactivated assistants such as Amazon’s Echo. Several weeks ago, an Oregon couple was shocked to learn that their Alexa device had recorded their private conversations and then emailed a transcript to a third-party contact. Closer to home, SDG&E recently reported that government agencies had subpoenaed smart-meter data from 480 homes and businesses. Continued on page 42 May/June 2018 SAN DIEGO LAWYER 13

BY EDWARD McINTYRE

ETHICS

Could a Robot Do This? No, legal ethics involves moral judgment

acbeth and his team had just finished their monthly Professional Responsibility Roundtable when Rugger rushed to the speakers’ table.

on about. Here’s my brainstorm. Ready? Use AI!” Grinning from ear to ear, Rugger waived his arms like a maestro concluding a grand symphony.

“Hey Macbeth!”

“You know. All that AI you’ve talked about. How it will revolutionize law practice. Well, what about — Robo-Ethics!”

“Yes, Bill. Have a question?” “Better. I’ve got a revolution. Brilliant, if I say so myself.” “I’m sure, Bill. Duncan, Sarah, gather ‘round and listen to Bill.” Duncan and Sarah pulled their chairs close. “Go ahead, Bill, floor’s yours.” “Well, you know these ethics rules you’re always talking about —”

“Use artificial intelligence for what, Bill?”

“Robo-Ethics? What pray tell —” “Load in all the rules. Case authority. Opinions. Whatever. Then, you got an ethics question? Bingo. Answer in milliseconds. Nothing to discuss. Nothing to debate. Question — answer. Next question. Might put a few of you ethics nerds out of business but — hey, stuff happens.”

“Rules of Professional Conduct and the State Bar Act?”

“Indeed, it does. Let me see if I understand.”

“Yeah, them. And the ABA stuff —”

“Would you propose Robo-Ethics for civil lawsuits and State Bar Court discipline cases?”

“ABA Model Rules of Professional Conduct?”

CARTOON BY GEORGE BREWSTER JR.

“Whatever. And cases and opinions you go

“Sure. Ask away.”

“Sure, why not?” “As you would have it, if facts might support the violation of a rule. Or a provision of the State Bar Act. Then, Robo-Ethics would match the facts with the rule, find the violation? Add the cases for support? All in the blink of an eye.” “You got it. That’s the beauty of it. None of this ‘but if … but if’ back-and-forth.” “What about experience? What about moral judgment? Where do they fit in?” “What do you mean?” “I’m reminded of Holmes statement, ‘The life of the law has not been logic; it has been experience.’” “That was then. This is the digital age.” “I see. May I test Robo-Ethics a bit?” “Be my guest.” “Assume a lawyer’s client trust account falls to $990 when he should have $1,000 of a client’s funds in the account. If the client asked for her money, it’s not all there. Clear indication of a Rule 4-100 violation, wouldn’t you say?” “Seems like.” “Robo-Ethics would find a violation, I assume?” “Clearly.” “If it were a civil case, Robo-Ethics would find liability. Say, breach of fiduciary duty.” “Sounds right.” “If it were a discipline case, Robo-Ethics would find culpability. Then look at the Standards for Attorney Sanctions for Professional Misconduct, I assume.” “Yep. That’s what you say the State Bar Court applies. ” “It does. Supreme Court as well. Standard 2.2(a) calls for a three-month actual suspension from practice for trust account comingling or failure to pay out entrusted May/June 2018 SAN DIEGO LAWYER 15

E ETHICS funds. So, with Robo-Ethics, the outcome is cut-and-dried? In milliseconds?” “What’s the issue?” “Assume this lawyer never had a trust account problem before. For 10 years. Also assume the $10 difference was for a routine bank charge he forgot — was in a threeweek trial — to deposit into the account. For Robo-Ethics, same result? Positivistic. Rule, facts, result.”

reading of the rules. Just skirts discipline. Gets a lot of chalk on his shoes but never quite crosses the line. A couple of State Bar warnings, but no discipline.” “Know the type.” “Then he crosses the line. Assume a violation that calls either for suspension or a reproval. What’s Robo-Ethics do? What does it look at? What informs its ‘judgment,’ if I may call it that?”

“So?”

“Well —”

“That’s where Holmes’ reliance on experience comes in. That’s also where moral judgment plays a role. Is this lawyer a danger to the public? Are his clients at risk for this one mistake? Should he really be suspended from the practice of law for three months?”

“That’s where moral judgment enters the picture. It views conduct not just positively. Against static rules. But through a prism of moral values.” “That’s a lot harder. How do you know when you’re right?”

“Isn’t any ethics system tested at the edges?”

“I agree, Bill. Moral judgments can be difficult. Take time. Discernment. Sometimes means confronting the unknown.”

“Well —”

“But —”

“Let me try another example. Assume a lawyer always cuts corners. But somehow manages to stay just within the narrowest

“Your Robo-Ethics may be a great help gathering and analyzing data. I agree. But in the end, doesn’t each of us have to exercise

“But you picked an extreme example.”

moral choices about what that data means. How we apply it?” “Guess I hadn’t thought a lot about that. Haven’t considered moral philosophy since sophomore year in college. Slept through most of the course.” Sarah spoke, “Macbeth, are you suggesting moral philosophy should be part of a law school ethics curriculum?” “Well now, can you think of a better place? Bill, come to the office. We can talk about this some more. There’s a lot to discuss.” Editor’s Note: The quote comes from Oliver Wendell Holmes Jr., “The Common Law,” Lecture I, p. 1 (Little, Brown, and Company 1881).

Edward McIntyre (edmcintyre@ethicsguru.law) 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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SOCIAL MEDIA

Getting Your News from Twitter Tips from a reporter We asked a local reporter to recommend journalists for attorneys to follow on Twitter. Here's what they shared:

f you managed to stay off Twitter for more than an hour in April and May, you likely missed the latest news about President Trump’s personal lawyer Michael Cohen.

Whether it was the FBI’s raid on Cohen’s office and home, or major companies paying him in hopes of securing good will from the Trump administration, the brash New York attorney provided plenty of fodder for consistent tweeters. Many of those using their limited number of characters to tweet about Cohen were reporters, who are typically encouraged by their news organizations to be active on Twitter. Lawyers may find the following journalists on Twitter instrumental in keeping up with legal affairs news and trends, while also gauging what topics are of interest to the media. Locally, there are several reporters tweeting about high-profile cases and judicial ratings that could be helpful to follow.

The San Diego Union-Tribune’s Greg Moran (@gregmoran) and Kristina Davis (@kristinadavis) cover the state and federal courts here. They have written about the ongoing “Fat Leonard” scandal engulfing U.S. Navy personnel and efforts by federal prosecutors to emphasize prosecutions of illegal border crossers.

Another Moran who tweets about San Diego legal developments is Lyle Moran (@lylemoran), a staff writer with the Los Angeles Daily Journal. He is the newspaper’s State Bar reporter, so his feed also provides frequent updates on California’s legal licensing agency and law schools.

Maya Srikrishnan (@msrikris) covers immigration for Voice of San Diego, so immigration lawyers would be wise to follow her. She tweeted out a piece in May about a day she spent in immigration court and has tweeted about legal developments affecting so-called Dreamers.

Bianca Bruno (@BiancaDBruno) from Courthouse News Service is a prolific tweeter who covers local civil and criminal cases, while also finding time to report on some appellate hearings about cases that originated in San Diego.

The Wall Street Journal’s Sara Randazzo (@sara_randazzo) is a Los Angeles-based reporter who writes about legal news of national interest generated from California and elsewhere.

May/June 2018 SAN DIEGO LAWYER 17

S SOCIAL MEDIA

Maura Dolan (@mauradolan) of the Los Angeles Times will occasionally tweet about state Supreme Court rulings and Cheryl Miller (@CapitalAccounts) of The Recorder shares legislative actions and legal maneuvers in Sacramento.

If it is unclear what topics a reporter covers, their Twitter bio typically includes that information. Journalists will also frequently post the best way to reach them in their brief bios. Direct messaging via Twitter is another option for contacting a reporter with a news tip or a question. Typically, the ability to use that messaging method requires that you and the media member both follow one another on Twitter. Following journalists on Twitter also enables attorneys to receive up-to-the-minute updates from court hearings that may be on their radars.

Courthouse News’ Adam Klasfeld (@KlasfeldReports) seems to do a particularly good job of tweeting from federal court proceedings in New York. He and the Wall Street Journal’s (@eorden) broke the news via Twitter that a previously undisclosed client of Cohen’s was Fox News host Sean Hannity, a big booster of Cohen’s primary client.

And the next time a big piece of legal news breaks on Twitter, whether about Cohen or not, it will likely be from a reporter’s feed.

Follow the SDCBA and San Diego Lawyer! sandiegocountybar sandiegolawyermagazine

@sdcountybar @sdlmagazine

“I have always found that positive results come from strong relationships and the ability to listen.” – Dave Noonan

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BY KEN TUREK

TIPS

The Practice of Intention

How a proactive mindset helps your practice prosper For advice to lawyers with growing practices, San Diego Lawyer reached out to Ken Turek, who has advised over a thousand American lawyers through his practice and teaching for the ABA and Trial Lawyers College.

“T

he long hours, money pressure, conflict, potential for mistakes sometimes overwhelm me.”

You may think this quote is from a young lawyer, but it is from a lawyer in practice almost 20 years. The lesson is: the early pressures of lawyering remain throughout our careers. How we understand and internally “conquer” them defines how well we practice and, more importantly, how well we live away from the law. Younger lawyers are actually in an enviable position because their bad habits are not as hard to break. If there is one bit of advice I give young lawyers — older lawyers ignore me — is that a major key to success is, quite simply, an intentional mindset, or rather, an individually designed structure for how to think. Unfortunately, none of this is taught to us in law school. We learn the hard way that proactive thinking of how to go about our work and life — not reactive — is often essential to our well-being. Too often we hear “I need a drink to get through this week” or “The opposing lawyer is driving me crazy” or “I need to go to yoga to relax.” These are all reactive statements. They reflect a person who is letting law and life come at them rather than the reverse. An example:

Lawyer Smith is in a deposition when his opponent says something that angers him. Smith fights back, terminates the deposition and storms out. During his drive home, Smith rationalizes by blaming the other lawyer or the system or whatever. He then does whatever he does (exercising, talking, drinking, etc.), which makes him feel “centered” again. Smith’s reactive mindset allows circumstances to control him, rather than the other way around. A different lawyer, Lawyer Jones, is “centered” up front. Her depo prep includes a disciplined intention to stay focused whatever comes her way, and to do her best work. She is consequently centered throughout the deposition, ignores any extraneous stimuli and completes it absent any drama. She leaves not only satisfied, but also not dragged down by emotional turmoil. After work she is already at peace, rather than struggling to return to it. The law requires constant learning and growth. We all struggle at times. The practice can wear us down if we just allow it to come to us. A disciplined, proactive mindset can help with challenges that will surely come. It takes intention and practice, but can save a lot of heartache.

Five Suggestions for New Lawyers

Don’t be someone you’re not. I tried to act “tough” early in my career and failed. I had to learn to practice in a way that fits who I am; it made me happier.

The human element of practicing law is often more important than the legal. Working to understand what’s going on inside you, clients, opposing counsel and court personnel adds value beyond measure.

Fear never goes away. Try welcoming it as an ally instead of fighting it.

We use organized strategy skills all the time to work toward a certain result, for example, executing a discovery plan to nail down certain evidence. Try using those same skills to get to the “result” of becoming the kind of person and lawyer you want to be. Plan, execute, adjust, etc.

Consider writing your intentions for all aspects of your life: love, career, money, fun, etc. They give us a compass to follow and later return to when we go astray.

Ken Turek (ken@kenturek.com) is an attorney at law. May/June 2018 SAN DIEGO LAWYER 19

BY CHRISTINE PANGAN OPEN DIALOGUE

The People v. X A Case of Civility Warren Den

Rebecca Zipp

o the lay person, prosecutors and criminal defense attorneys are often viewed as the very definition of “lawyer” and polar opposites in every way. Yet in legal circles, attorneys in this area are also praised as being the most civil bar. San Diego Lawyer sat down with Deputy District Attorney Rebecca Zipp (RZ) and Deputy Public Defender Warren Den (WD) to explore this dynamic.

How do you normally work together on a case? RZ: We would talk for the first time at readiness conference in the judge’s chambers, I would make my offer, Warren would tell something mitigating, and maybe the judge will encourage us to adjust our offer accordingly. I’d say threequarters of cases resolve at that point. If it’s a special case, we would talk prior to that first court readiness to get our ducks in a row, but most of the time we are able to resolve it in one or two readinesses. Is your working relationship typical of how you deal with the other office? WD: Certain public defenders work better with certain DAs. It’s just a matter of individuals as opposed to one person having a problem with an entire office and vice versa. RZ: I’ll say I like working with Warren. (Everyone laughs.) RZ: Typically, it’s nice working with the public defender because we are repeat players; we’re going to have more cases together. We have a long-term relationship and preserving that relationship between the offices is very important. WD: For us, it’s maintaining our credibility, our integrity, and just being reasonable. Although we represent individual clients, they oftentimes represent the victim who

needs and wants to be vindicated. So we explain to our clients that we have to work within that framework. What are the greatest challenges your offices face today? WD: We always face the credibility gap with our clients, to convince them that we are effective and are actually real attorneys. Because our funding comes from the County, they believe there’s an implicit conflict of interest or we’re not working as hard, that we aren’t as aggressive or putting forth as vigorous a defense as a retained attorney would. Overcoming those ideas and stereotypes is still the largest challenge we face. RZ: For us, there’s a trend away from incarceration. We have to assess cases in a different way and that’s a learning process for us. The other difficulty is a perception that our job is to convict at all costs, and that is not our job. In one instance, I had public defenders come in and make the case that we had the wrong person. These were people we trusted and when they called up and said, “We have evidence that you have the wrong person,” we believed them. We’re open to evidence that shows they are not guilty. What is your biggest challenge now? WD: Managing client expectations. When you have more serious [felony] cases, you’re often the harbinger of very bad news,

explaining what types of sentences they’re looking at, which in the client’s mind are not commensurate with what they actually did. Sometimes, I empathize because some of the determining of sentencing law in California is fairly draconian. RZ: I think it’s that you answer to a lot of different masters. You owe certain things to the defendant and to the victims, you answer to your manager, and ultimately the district attorney, and then you have the court. Balancing the duties owed to all of those groups can be a challenge. Do you ever get mad at each other? WD: (pause) Uh … yes? (Everyone laughs.) RZ: Mad or exasperated, Warren? WD: I mean, there are frustrations, because we think the other person isn’t taking into consideration what we’ve done or our positions, but fortunately for us, it’s never been personal. We understand that we’re trying to do our jobs. RZ: Whether the judge comes down on my side or not, that can help me take a step back and say, “Ha! I was right!” or “Alright, maybe I was unreasonable and I hadn’t thought about that.” That’s why we have judges and like being in front of good judges. We can rely on what they decide whether or not it supports our position. Continued on page 40 May/June 2018 SAN DIEGO LAWYER 21

2018 SERVICE

Photos by Jason de Alba

AWARDS Get Ready to Get Inspired

Our 2018 award recipients talked to us about why they serve.

OUTSTANDING JURIST, AWARDED POSTHUMOUSLY

HON. DAVID BARTICK

U.S. District Court for the Southern District of California “A few judges stand out among their peers because of their extraordinary grace, patience, and compassion. Judge Bartick was one of these. He epitomized judicial temperament. He had a well of patience and respectfulness that seemed to be without limit.” — Hon. Barry Ted Moskowitz, Chief Judge, United States District Court for the Southern District of California “Judge Bartick always made it look so easy to be kind and honorable. He made it look refreshingly normal to be respectful to everyone he encountered. It was second-nature for Judge Bartick to come to work early, stay late, diligently review every document, join every committee, volunteer for every extra duty, fill in for his colleagues, and do it with vigor and a smile. It is who he was.” — Chrysta Elliott, Law Clerk to Hon. David Bartick

22 SAN DIEGO LAWYER May/June 2018

“Sometimes a person’s reputation in the community is more telling than one’s opinion of the individual. In David’s case he was the person about whom I never heard anyone speak of him except in the most laudatory terms.” — Jan Ronis, Law Offices of Ronis & Ronis “[Judge Bartick] is one of those rare individuals about whom no one has anything bad to say, and who, by example, made others want to be better professionals and people.” — Hon. Yvonne Campos, San Diego Superior Court “Judge Bartick loved being a judge and that joy is reflected in the reports of the lawyers and litigants who appeared before him. During the 16 months that I covered his calendar, I was reminded of his patience and judicial temperament as reflected in the remarks by those most familiar with him.” — Hon. Lousia Porter (Ret.)

OUTSTANDING ATTORNEY

CANDACE CARROLL Sullivan Hill Lewin Rez & Engel

Why do you serve? Because there are things that need to be done in the community that no one is funding, and if we all do a little, we can get everything done that is needed. What advice would you give others to inspire them to serve? You will learn a lot and meet many interesting people you would not otherwise have met, and you will have the satisfaction of knowing you contributed to the general good. What inspires you to serve? I was raised to believe that we all have an obligation to help others. Three noteworthy people you'd invite to dinner: Thurgood Marshall, Harvey Milk and Eleanor Roosevelt. What is one item on your bucket list? Seeing the Northern Lights.

Favorite place in San Diego: Warwick’s bookstore. Cherished advice that you have received from a loved-one, mentor or colleague? From D.C. Circuit Judge Spottswood W. Robinson III: “Don’t ever not do something that you want to do just because you’re scared.” If you could magically change one thing about the world, what would it be? Eliminate nuclear weapons. In what ways does serving the wider community benefit the legal profession? The legal profession is part of the wider community, and our profession does well when the community does well.

Favorite place on earth: My wonderful house where I have lived for more than 25 years and in which Len and I raised our kids.

OUTSTANDING ATTORNEY

VIRGINIA NELSON Law Offices of Virginia C. Nelson

Why serve: It is my responsibility and honor to do so. Advice to serve: Identify a service that aligns with your interest and passions; then it’s not an obligation, it’s a pleasure. Inspiration to serve: My family and friends. Dinner guests: Jeff Bezos, Barbra Streisand and LeBron James, with our chef, Alice Waters. Bucket list: Attend the Academy Awards. Favorite quote: “The quality of a person's life is in direct proportion to their commitment to excellence, regardless of their chosen field of endeavor.” — Vince Lombardi

Favorite place on earth: Simon Pearce Restaurant in Quechee, Vermont, in autumn. Favorite place in San Diego: Coronado. Cherished advice: Get comfortable in a courtroom. If you could magically change one thing: Make teleporting available. Finding time to give back: Understand that what you get back is far greater than any effort you put into it. Benefits to the legal profession: Working within our communities together helps lawyers and non-lawyers understand and appreciate each other more.

May/June 2018 SAN DIEGO LAWYER 23

SERVICE TO THE SDCBA

ALVIN GOMEZ Gomez Law Group, P.C.

Why serve: Since elementary school and throughout my life, I have been helped by so many people. I believe that it is important to help others as a means of paying it forward for those who helped shaped your life. I have always believed that knowledge is power, and with power comes opportunity to give, serve and help others. Advice to serve: Helping others is more valuable than any money that one can earn. Inspiration to serve: I am inspired by my family. While we had humble beginnings, we were taught to be thankful for what you have and not look at what you don’t have. My parents

always helped people and I have learned to do the same. Dinner guests: Thomas Jefferson, Mother Teresa and Nelson Mandela. Bucket list: To take my mom to the Vatican. Favorite place on earth: London, England. Favorite place in San Diego: La Jolla Cove. If you could magically change one thing: Ensure true equality for all. Finding time to give back: By doing the simple things first, i.e., opening the door for a person, and then work on the bigger things like engaging in pro bono work and mentoring others. Benefits to the legal profession: The wider community is served by the legal profession in that we, as lawyers, can make sure that justice is served for everyone. When we see a wrong, it is our obligation to take action to legally correct the wrong.

SERVICE TO DIVERSITY

JONAH TOLENO Shustak Reynolds & Partners, P.C.

Why serve: Serving in the community is a natural extension of our profession. It makes my practice more dynamic. Being around people reminds me that I went into law to help others. Advice to serve: I find when I give of myself and my time, the universe seems to warm up and pay back huge returns on my investments, in ways I often cannot foresee. Inspiration to serve: My children. What I want most for them is to be happy and fulfilled. Service to others has a direct correlation to that outcome. Dinner guests: Alexander Hamilton, for his Constitutional discernment and foresight; Sallie Krawcheck, for her insight as a strong, female public figure who successfully weathered our country’s financial services tumult; and J-Lo because I admire how hard she works at her craft and I would hope we could go dancing afterward. Bucket list: To choreograph a play. Favorite place on earth: Lucca, Italy. Favorite place in San Diego: It is a three-way tie 24 SAN DIEGO LAWYER May/June 2018

between my home, any bookstore, and Carlsbad State Beach. Cherished advice: My managing partner, Erwin Shustak, told me this years ago before I gave a closing argument: “Speak from your heart. If you can do that, you will find your voice, and others will listen.” If you could magically change one thing: I would end sexual exploitation and human trafficking, particularly of children. Finding time to give back: Have coffee with someone new. Be generous with advice to students and newer attorneys. Hold the elevator door for that person in a rush. Be open and be in the moment. I think being 100 percent present with someone is one of the best gifts we can give a person. Benefits for the legal profession: People and humanity are at the core of our profession. The more diverse our experiences, the more excellent and compassionate advocates we are.

SERVICE TO THE LEGAL COMMUNITY

WENDY BEHAN

Casey Gerry Schenk Francavilla Blatt & Penfield LLP Why serve: I have always made volunteering part of my life, and as a lawyer, I recognize that we have unique opportunities to give back to our communities. I believe volunteering makes our community a better place and I enjoy giving back. Advice to serve: You will undoubtedly get more in return than you give. You will be inspired by the people you volunteer for and with. Inspiration to serve: I am inspired by the Lawyers Club leaders who came before me, like Hon. Lynn Schenk, Justice Judith McConnell and Judge Patricia Cowett, who continue to lead and inspire others. Dinner guests: Ruth Bader Ginsburg, Barack Obama and Sonia Sotomayor.

Favorite place on earth: Relaxing on a beach in Hawaii. Favorite place in San Diego: On the soccer field, either playing myself or watching my son play. Cherished advice: Many years ago, David Casey suggested that I join and get involved with Lawyers Club. That advice changed the trajectory of my career and life for the better. If you could magically change one thing: I would make sure that all children have the opportunities and confidence in themselves to achieve their goals. Finding time to give back: Figure out what you are interested in or how you’d like to leave your mark on your community and focus your volunteering in that direction. If it’s something you love, you will continue volunteering and it will become part of your daily life without any effort. Benefits to the legal profession: Members of the legal community should work to help those without access to the justice system understand legal processes. To increase the community’s knowledge of the legal system helps our justice system work better.

SERVICE BY A PUBLIC ATTORNEY

MICHELLE IALEGGIO San Diego County District Attorney’s Office

Why serve: I went to law school to make a difference every single day of my career. I serve because it’s a privilege to do so. I am fortunate to have had so many great opportunities in life. Using those opportunities to help fight for child victims as a Deputy District Attorney is an absolute honor. Let passion drive your profession.

Favorite place on earth: I got married in 2015 to my amazing husband Matt in a beautiful 13thcentury church in a small, walled, medieval hill town called San Gimignano in Tuscany, Italy. It was as dreamy as it sounds.

Advice to serve: What you put out comes back all the time, no matter what. My philosophy is that not only are you responsible for your life, but doing the best at this moment, puts you in the best place for the next moment.

Cherished advice: To have a meaningful and purposeful life rather than to chase one specific dream.

Inspiration to serve: Women paving the way for other women who have changed the world. A few favorites are Condoleezza Rice, Justice Sandra Day O’Connor, Mother Teresa, Helen Keller, Elizabeth (Eliza) Schuyler Hamilton, Amelia Earhart and, of course, Beyoncé. Dinner guests: Pope Francis, Rosa Parks and my paternal grandmother, Angela Ialeggio. Bucket list: To run the Boston Marathon. I’ve run quite a few marathons so far, but to qualify for Boston would be the cherry on top.

Favorite place in San Diego: Windansea Beach.

If you could magically change one thing: I wish more of the world could unite to see being tolerant of differences doesn't mean sacrificing your own heritage or beliefs. Tolerance to me is being patient and understanding our differences without judgment. Finding time to give back: Start small, dream big. Benefits to the legal profession: Serving the wider community puts public trust back into the legal profession. May/June 2018 SAN DIEGO LAWYER 25

COMMUNITY SERVICE

JIMMY TABB Zaveri | Tabb, APC

Why serve: I have been helped by countless people in countless ways in my career. It’s an honor and privilege to be able to do my part in return, and to teach my kids that they must do their part. Advice to serve: Think of all the ways you have been helped by others in your life. Then think of all the ways in which you can help others. That should inspire you to serve. If it doesn’t, serve anyway. I guarantee you will get back more than you give — and in unexpected ways. Inspiration to serve: I see people who work two or three jobs to support their families and still make time for service, and I think to myself, “How can I sit on the sidelines and not do my part?” Dinner guests: James Madison and Jesus to settle debates on politics and religion. And Christopher Hitchens to stir the pot. Bucket list: An African safari. Favorite place on earth: India. Favorite place in San Diego: Famosa Slough — a hidden gem among urban sprawl that is great for bird photography.

Cherished advice: It’s pointless to try to get in the last word in an argument with a lawyer who’s being paid by the hour. If you could magically change one thing: To have everyone live by the mandate to “love thy neighbor as thyself.” Finding time to give back: Our daily lives are stretched thin, but every day each of us can teach our kids (or anyone else who looks up to us) to be kind and generous. And when the opportunity presents itself to help others, or to join an organization that does compelling work, we can all answer the call. Benefits to the legal profession: Lawyer jokes are popular for a reason. By getting out there and doing good, we can prove those jokes wrong.

SERVICE BY A NEW LAWYER

JAMIE QUIENT Free to Thrive

Why serve: As attorneys, we have a unique skill set and a privileged position in society. We have a duty to give back to others, particularly to help indigent and vulnerable populations access our legal system. Advice to serve: Find what you are passionate about and identify who’s already working in that area. Reach out and ask what you can do to help. I guarantee there’s something you can do to have an impact. Inspiration to serve: I am inspired every day by the clients we serve at Free to Thrive. They are the most resilient people I have ever met. They have experienced horrors most of us could never imagine and have overcome tremendous adversity. Many of them are leaders in our community. They are entrepreneurs, nonprofit leaders and activists. They tell their deeply personal stories to help prevent others from the same fate. I truly love working with them to help 26 SAN DIEGO LAWYER May/June 2018

them overcome the barriers impeding their future success. Dinner guests: Dr. Martin Luther King Jr., Gloria Steinem and Michelle Obama. Bucket list: Hike Machu Picchu. Favorite place on earth: San Sebastián, Spain. Favorite place in San Diego: Balboa Park. Cherished advice: I have had several people remind me that in order to take care of others, you must first take care of yourself. I have to constantly remind myself to practice self-care and avoid burnout. This is my life’s work and I am just getting started. If you could magically change one thing: I wish for all people to have compassion and empathy. Finding time to give back: Giving back does not have to be a grand gesture. Small acts of giving and kindness can be very powerful. It’s really about being thoughtful and considerate of other people. Smile at a stranger. Benefits to the legal profession: Helping those around us improves our community and in turn benefits us all.

ANNUAL AWARDS LUNCHEON & CELEBRATION OF COMMUNITY SERVICE

2018 LAW WEEK POSTER & VIDEO CONTEST WINNERS

We gathered on Law Day, May 1, to celebrate the spirit of giving back and honor the SDCBA's 2018 Service Award recipients. The winners of this year's annual Law Week Poster & Video contest were also recognized at the event.

First Place, Grades K-5 Charlotte Morton, El Camino Creek Elementary School

First Place, Grades 6-8 Nicole Standifer, St. Gregory the Great

First Place, Grades 9-12 Jimena Martinez Ramos, Crawford High School

First Place, Grades 6-8 Marielle Lappe, St. James Academy

View an extended digital version of this feature, including extra commentary and photos at www.sdcba.org/2018winners.

First Place, Grades 9-12 Tommy Thaodara, Jaiden Sao,William Nguyen, Crawford High School

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good friend asked me to lecture to her business ethics class at San Diego State University, mostly juniors and seniors. During class, she would mark the 54 students on “participation,” so I quickly scrapped the “lecture” idea. Instead, the class at large — from scratch and without advance acquaintance with our Rules of Professional Conduct — would develop a set of ethics rules for a profession. Lawyers. In little more than an hour.

in Business and Professions Code Section 6068(e) and ABA Model Rule 1.6, reactions were mixed. More about that below.

We started with some context: what lawyers do. The assumptions were: lawyers represent clients before tribunals; they counsel clients; they deal with non-client third parties on clients’ behalf.

Loyalty.

With only this brief context — and perhaps material they had read for the course, and their own experience and ethical norms — the students addressed the question: What do you expect of your lawyer, focusing only on ethical standards? First, Confidentiality. This was the immediate and spontaneous response to the question. All who contributed to the discussion thought confidentiality was a key ethical requirement. What you say to your lawyer had to stay with that lawyer. Much later in the class, when we discussed the confidentiality mandates and exceptions 28 SAN DIEGO LAWYER May/June 2018

Next, Fair Fee. I was surprised that this was the second ethical norm the class developed. Not only did participants think that fair fees were an important ethical component of the lawyer-client relationship, but also that the lawyer had to be efficient in delivering services — a corollary to a fair fee.

The class wanted a lawyer who would represent their interests, no matter what conduct was involved, and not to judge the client. Rather, they wanted a lawyer who was devoted solely to the client’s best interest. They also wanted a lawyer who could focus on what was best for the client, no matter who the client was.

a lawyer to misrepresent facts to them, but they also wanted a lawyer who was not afraid to deliver, honestly, uncomfortable or bad news. Candor to the Tribunal. A few saw this norm as important for the judicial system to function, but they emphasized that such candor had to be subordinate to the obligations of confidentiality and loyalty to the client. Confidentiality and loyalty remained the predominate ethical norms. Competence. The class thought competence was not just an important behavioral aspect of a lawyer’s representation, but also a lawyer’s ethical obligation. As the discussion of this norm continued, diligence and communication became part of the element of competence.

Conflict-Free Representation.

Ethical Reputation.

Another element of the relationship important to the class was that the representation be without conflict of interest — either with some other client or with the lawyer’s own interests.

Several in the class said, and the balance appeared to agree, that a lawyer had an ethical obligation to maintain her or his reputation as an ethical lawyer in the community. As one student offered: “I don’t want to hire a lawyer and find out two months later that he’s been arrested for drug dealing or disciplined for misconduct. I want someone who’s known to be ethical.”

Candor to the Client. All who chimed in saw candor as important, as well as communication from their lawyer. In this context, they not only did not want

Confidentiality Revisited. Toward the end of the class, I shared with them, Section 6068(e)(1)’s strict mandate — at every peril to herself or himself — and the permissive exception of Section 6068(e) (2). The reaction was mixed whether a lawyer should disclose a client confidence even to prevent the death or serious bodily injury of a third party, using a variant of the Tarasoff facts to provoke the discussion. We then looked at ABA Model Rule 1.6, which has a permissive exception to confidentiality to prevent serious financial harm to another when the client is using the lawyer’s services to cause that harm. We used the Enron case as an example.1 Most of the class felt no disclosure was the

1 2

proper ethical norm when only financial harm was at stake. One interesting exception: a student who thought there should be no exception with the Tarasoff facts — threatened death of a girlfriend — saw a basis for the ABA Model Rule exception when the serious financial harm would affect many people. We agreed it would be better to be his broker than his girlfriend! Sex With Clients. As promised at the outset, we had the conversation first and saved sex until last. The scenario was a 38-year-old lawyer who agrees to represent a 19-year-old “Dreamer” college student pro bono, and says he has creative strategies to deal with DACA; over

time he invites her to dinner, the theater and eventually his Mission Hills condo where they engage in consensual sex. The overwhelming majority of the class thought this was ethically wrong.2 As one student put it: “If he wants to continue the relationship, he should get her another lawyer who can represent her.” Unfortunately, time came for class to end. The experience, however — a group of smart, articulate, thoughtful college students — sheds a bright light on the ethical standards our clients and the public in general may expect from us. Edward McIntyre (edmcintyre@ethicsguru.law) is an attorney at law and co-editor of San Diego Lawyer.

A curious observation how we date ourselves — many of these business students had not heard of Enron. They laughed when they learned that Rule 3-120 prohibits the lawyer from continuing to represent the client only if his conduct would cause the lawyer to perform legal services incompetently.

New Rules of Professional Conduct The California Supreme Court Has Acted

y an order filed May 10, 2018, the California Supreme Court changed California’s legal ethics landscape. The Court approved, without change, 27 of the comprehensive set of 70 proposed new or amended Rules of Professional Conduct that the Commission on the Revision of the Rules and the Board of Trustees had recommended for adoption. The Court also approved with minor modification another 42, and denied approval of only one of the 70 rules submitted. The new rules become effective November 1, 2018. Many of the changes are based on the ABA Model Rules of Professional

Conduct, in effect in almost every other jurisdiction in the United States — thus making California’s professional responsibility standards more uniform with national practice. The changes will be significant for California lawyers, touching almost every area of practice including fees (what must be deposited into a trust account and returned to the client at the end of the representation); litigation practice (including fairness to the opposing party and the duty not unduly to delay litigation); candor to the tribunal (with the obligation even after the fact to correct a false statement of fact or law); the responsibility of

supervising lawyers (with possible vicarious liability); prohibiting discrimination, harassment or retaliation in the practice of law; sexual relations with clients (not allowed unless the client is a spouse or domestic partner, or the sexual relationship predated the lawyer-client relationship); inadvertently transmitted confidential information (the ethical duty adopted in Rico v. Mitsubishi, now a rule of professional conduct, subjecting a lawyer to discipline); and many others. In upcoming issues, San Diego Lawyer will provide detailed analysis of the most significant rule changes.

SDCBA Summer Ethics Series: Navigating the Changes to the Rules of Professional Responsibility Learn about the new Rules of Professional Conduct during a special ethics series. Duties as a Counselor and as an Advocate, July 13 Law Firms, Associations and Marketing, August 10

Public Service, Integrity of the Profession and Transactions with Non-Lawyers, September 14

SHATTERING EXPECTATIONS WHEN EMPLOYEES' BAD BEHAVIOR GETS POSTED ON SOCIAL MEDIA By Hali Anderson

y now, most of us have heard of the now-infamous Google Memo. Authored by James Damore, a former engineer for Google, the memo argued that the lack of women in engineering jobs was, at least in part, due to biological differences between men and women, which made women less well-suited to be engineers. Specifically, Damore stated that women are more neurotic and less capable of handling stress. In one version of the memo, Damore also posited that because Google hired from the top of the intellect pool and men occupied more of that space, men tended to be hired more. Damore first submitted his memo to HR and then posted it on several internal message platforms hosted by Google. At some point, someone leaked the memo externally and it went viral. Days later, Damore’s employment with Google was terminated for “reinforcing gender stereotypes.” Damore is now suing Google, claiming that he was discriminated against for being a conservative white male. The 160-page complaint includes over 100 pages of screenshots showing posts on internal message boards that Damore claims he found to be offensive and supportive of his claims. Elsewhere in the country, hundreds of people traveled to Charlottesville, Virginia, to attend a white-supremacist “Unite the Right” rally. Participants marched in the

streets, carrying torches, chanting phrases such as “Jews will not replace us.” After the rally, a Twitter user who goes by the handle “Yes, You’re Racist” began revealing and posting to Twitter the identities of those who were filmed or photographed attending the rally. As a result of these revelations, at least four people lost their jobs. Also in Virginia, Juli Briskman was riding her bike one morning when the Presidential motorcade passed by her on the street. As the motorcade passed, Briskman put up her middle finger as a show of her disdain for the President. A photographer traveling with the motorcade snapped a picture of Briskman and it quickly went viral. Briskman even put the put the photo as her profile picture on Twitter and Facebook. Days later, her employer, a Virginia-based federal contractor, told her that they were terminating her employment because it could hurt the company’s reputation as a government contractor. Recently, Latham & Watkins Chairman Bill Hoge resigned after it was discovered that he had been sending lewd and threatening text messages with a woman he encountered through his work with a Christian men’s group. The woman was completely unaffiliated with Hoge’s firm. Nevertheless, the firm’s executive committee concluded that, while not unlawful, Hoge’s conduct “was not befitting

of a leader of the firm,” and asked him to step down. And just this past March, an article was published in East County Magazine, detailing a $15,000 settlement that was reached between Lemon Grove Council Member Jerry Jones and Lemon Grove City Manager Lydia Romero, on the one hand, and an individual named Marcus Bush, on the other. Bush alleged Councilman Jones and City Manager Romero violated his free speech rights and retaliated against him for comments he’d posted on social media criticizing Jones. The settlement agreement explains that Bush was a former employee of Rick Engineering who performed community outreach work related to the Lemon Grove Downtown Specific Plan for Rick Engineering on behalf of the City of Lemon Grove. In July 2017, Bush made a comment on Facebook stating that Jones had “thinly veiled racist tendencies.” Jones responded to the comment by contacting Romero and inquiring about the plaintiff’s work representing the City of Lemon Grove. Romero followed up on Jones’ inquiry and plaintiff’s comment. After discussions with Romero, Rick Engineering ceased using Bush under his temporary contract. As part of the settlement, both Jones and Romero issued apologies to Bush saying they respected Bush’s right to criticize public officials on public platforms and social media; and also apologized for any May/June 2018 SAN DIEGO LAWYER 31

adverse impact that had occurred to his employment. In a world where social media and technology consume employees 24/7, what was once private has become public, and it has made its way into the workplace. James Damore’s memo most likely would have stayed within the confines of HR had he not posted it to Google’s internal message boards. The Charlottesville rally attendees’ identities would have largely remained unknown if not for the ability of technology to identify these individuals and circulate the identities with the click of a mouse. Juli Briskman’s photo might have remained a local news story if her photo hadn’t found its way to Twitter and Facebook. Ex-

“In a world where social media and technology consume employees 24/7, what was once private has become public, and it has made its way into the workplace.”

Chairman Bill Hoge’s story might have been a he said/she said scenario if there weren’t a thread of text messages memorializing his bad acts. If Marcus Bush kept his thoughts private, Councilman Jones would likely never have heard them. While Damore’s conduct occurred at the workplace, the other three examples did not. Yet, all of these individuals suffered the same fate. So, what is an employer to do in these situations? What happens when an employee’s conduct, while not necessarily directed toward a co-worker or even potentially related to the workplace, is found to be offensive to the employee’s colleagues? The first step is to do a prompt and thorough investigation. If the investigation confirms that the alleged conduct did indeed take place, the next step is for the employer to determine what action to take in response. Employers should first ask: Is this employee’s conduct unlawful? Unlawful conduct is grounds for termination. If the employee’s conduct is not unlawful, the next question is: Was the employee’s conduct in violation of company policy? Perhaps the conduct violates the company policy on respect? Or the social media policy? If the conduct does violate a policy, the next step is to determine whether the policy at issue has been applied consistently. This is a good example of why it is imperative to get HR

involved in all decisions because HR will have the historical knowledge of how the company has responded to various issues, across departments. And finally, if the conduct is not unlawful and if it does not violate a company policy, is there still some reason that the greater good is worth the risk? Does the company want to make a statement? Avoid or attract a certain type of publicity? What does the company stand for? These are questions that employers grapple with every day. And if you haven’t had one yet, you can be assured it is coming. If an employer wants to be proactive, it should invest in in-person training for all employees so that people understand the employer’s vision, expectations and scope of discretion. Employees need to understand that there can be consequences for their actions, regardless of who it is directed at or where it occurs. That training should involve real-life examples like the scenarios detailed above. Employers should also review their handbooks and/or other company policies to make sure they are expansive enough to keep up with the constantly changing face of technology. Hali Anderson (handerson@wilsonturnerkosmo.com) is a senior associate with Wilson Turner Kosmo LLP.

Distinctions The following individuals in our community were recently honored for a variety of achievements: Higgs Fletcher & Mack partner AnneElise Goetz was selected as a new Fellow to the American College of Mortgage Attorneys.

Srinivas Hanumadass, SDCBA director and CaseyGerry attorney, was selected to participate in the 2018 American Association for Justice’s Leadership Academy. If you know of SDCBA members who received accolades for work of a civic nature, or of passings in our legal community, email information to bar@sdcba.org. 32 SAN DIEGO LAWYER May/June 2018

MEET YOUR CLIENTS AND DEADLINES IN THE SAME PLACE

Workspace and meeting rooms available exclusively for members. www.sdcba.org/barcenterat401

The focus to reach the right result. CRAIGHIGGS.COM

DITCHING ONLINE FOR IN-PERSON Building connections and a practice offline and in-person: old-fashioned or overlooked? By Whitney Skala

hen it comes to business development, the current strategies of websites, search engine optimization, blogging, branding, et al., leave me a little cold. I understand the purpose of a good website. It’s your digital résumé, albeit longer than two pages. I understand search engine optimization. That’s the tool that helps get your digital résumé seen. I understand blogging. That’s where you validate your résumé. And I understand branding. That’s where you take your résumé and reduce it to a catchphrase and a color or two. Here are the reasons why those leave me a little cold. Not stone cold. Just a little freezer burn. First, I worry about the relationship I will have with the folks who are persuaded by my online panache. In my own experience, too many of them adopt an internet persona that I’ll label a “retail mindset.” The potential client’s primary filters become: what are your rates, how much will it cost, would you waive a retainer, are you cheaper than LegalZoom, can I do any of this myself, etc.? I’m a transactional attorney — I handle business and real estate matters. Like all of us, I sell time, but I deliver a relationship. If the client is on a retail wavelength, they will

34 SAN DIEGO LAWYER May/June 2018

miss most of what I’m providing, and they’ll be more likely to end up with ill-fitting advice or documents. The worst part? I probably enabled this in the first place, by using the medium of the internet for my business development. My second concern is related to the first. The internet strategy might make me busier — or at least busier than I was — but my retailminded clients might not come back and if

they do, I’ll have to win them all over again. My third concern is that the kinds of practices being searched by online folks have a limited upside, in many ways. Let’s leave aside for a moment the limited financial upside. What about the limited professional upside? Do companies really find counsel to handle the several-million-dollar sale of their business on the internet? What about the upside of trying to grow your business? Do

companies with a large portfolio of legal needs find an attorney on the internet? I suspect the answers are no. So what will you be tempted to do? Adjust your internet strategy to go after the work that is shopped for on the internet. And that work may be less satisfying, and lead you to simply more of the same. So while you’re doing what you have to do online in this digital age, my suggestion is to also pay attention to these business development concepts: Do Something, Almost Anything Potential clients (and the people who know them) are out there, even in your practice’s micro sub-specialty. And to meet them, pry yourself out of your office and pursue almost anything with others: yoga, bike riding, wine tasting, community service, fantasy leagues, whatever. This is where personal relationships are made, and personal relationships are the most powerful basis for client development. And the trick to choosing the activity? My two cents: In the long run, you’ll do better if you do things you sincerely like. Is golf better than baking? Not if you hate golf but love to bake. Your golf friends will see through you and you’ll get nowhere,

while your baking friends will embrace you and they just might include the next hot restauranteur. By the way, give yourself permission to spend some money on these pursuits — it’s your marketing budget. Identify Connectors Some of your acquaintances are connectors, and can be especially helpful because that one relationship can lead to several clients — that’s fantastic leverage. Who is a connector? Acquaintances may be connectors just by the nature of their personalities: they’re extroverts themselves, and nothing makes them happier than to contribute to the success of others. Other acquaintances are connectors by the nature of their own careers: accountants, for example, may be able to refer their own clients to you. If you’re a litigator, then other litigators who can refer you work will fit the bill. One good relationship with the right connector might exponentially help your practice’s growth. Cultivate Friendships, and Let the Chips Fall Where They May If you really care about people, it’s not too hard to stand out in this world. But expressing it takes some time and effort.

If you joined a board to develop business, but don’t bother working on any friendships within that board, then you’d have been better off doing something else. You don’t have to stay afterward to meet up for drinks, or have endless lunches — if that shoe fits, wear it; but if it doesn’t, then cultivate the relationships some other way. Try sending handwritten, personalized notes. Keep track of your contacts as they change jobs and their careers grow, and find a way to congratulate them. Be the attorney they’ve known you for over the years, even if they’re not using you. You’ll eventually come to the fore when they need to use a lawyer or recommend one. These how-to’s can go on forever. They’re usually just a variation on a few core principles, like, believe in yourself; aim for the practice you want (so that you get there); and, commit to people, and then the clients — life-long clients — will follow. Whitney Skala (whitney@ skala-apc.com) is an attorney at law.

BARTERING FOR

BUSINESS From haircuts to paintings, how and what I bartered for my legal services By Elizabeth Blust

n the opening scene of the movie“To Kill a Mockingbird” — and in a later scene in the book by Harper Lee — client Walter Cunningham brings a bag of hickory nuts to lawyer Atticus Finch as payment for the latter’s help with the former’s entailment. Now that I am a lawyer myself, I understand not only what entailment is (and why, as young Scout Finch commiserates with Mr. Cunningham later, “entailments are bad” and take “a long time sometimes”, Ch. 15), but also the value of accepting barter as a means of payment for legal services. My first barter experience was with my first client. My long-time hairdresser and her husband had a property issue, so I helped them understand and protect their rights. They paid a cash deposit and we agreed that part of their remaining payment would be a few haircuts from her and some tomatoes and other produce from their garden. An unexpected frost killed off the tomatoes, but I ended up getting two haircuts, some other vegetables, and a check for $75. My second barter experience was not planned. A trust administration for a surviving spouse took much more of my time than either of us had anticipated, and the deceased spouse had died with a lot more debt than the surviving spouse knew about. I reminded my client that she had once mentioned that she did not know what to do with all her furniture, since she would be moving to a smaller place. We agreed, in 36 SAN DIEGO LAWYER May/June 2018

a written amendment to the representation agreement, to exchange furniture for a portion of my bill. A few of the pieces found immediate new life — I used her old dining table as my office desk for the next five years — but I will admit that a few were “mercy barters” that still bide their time in my garage.

$1,000.00, should help avoid questions of improper gifting (See CRPC 4-400 and Bus. & Prof. Code §6148).

Likewise, I doubt Atticus Finch needed all those hickory nuts.

One potential obstacle to bartering in certain circumstances is new Rule of Professional Conduct 1.15 (effective November 1, 2018), requiring advance fees to be held in trust, in most circumstances. What if the attorney needs plumbing services now and agrees to perform legal services for the plumber at a later date? Can a bartered service be held in a client trust account? Perhaps the written fee agreement could state that the barter income is an advanced flat fee for services, and that if the legal services are not

The California Rules of Professional Conduct do not specifically address barter, so attorneys must align their barter income with all of the rules regarding fees. As with cash compensation, the fee cannot be unconscionable and should be proportional to the value of the services performed. CRPC 4200. A written agreement clearly stating the barter terms, even for representation expected to incur expenses less than

All attorneys should avoid obtaining an interest in property that is adverse to the client’s interest unless the transaction is fair, the client understands that the interest is adverse, the agreement is in writing, and the client is advised in writing that he may have the agreement reviewed by an independent attorney. CRPC 3-300. In fact, this potential exists any time an attorney reserves the right to place a lien on the client’s property. Perhaps the most unusual form of bartering is obtaining title to property by foreclosing on a lien. Christin Winkler-Muñoz of San Diego Tax Group, LLC, says that appellate attorneys often include a lien against a car or house as a key part of the fee agreement. If the attorney ends up taking title to the property, that is a non-cash exchange for legal services — barter.

completed by a certain date, the attorney will “refund” the unearned fee by paying cash for the plumbing? This is how an ethics committee of the Connecticut Bar Association recommended dealing with advance barter in light of that state’s rules (CBA Informal Opinion 15-04, July 15, 2015). With no such guidance for California, the attorney should perform the legal services first, with the barter income in goods or services being received once the legal fee is earned. The fee agreement should clearly state whether the attorney must accept the proffered goods or services (what if my client had tried to give me those frozen tomatoes?) and what alternatives the client has for payment if he cannot uphold his end of the barter bargain by a certain time. I do know of one attorney who was stiffed on a barter, when the client was not happy with the legal representation and refused to perform the agreed upon cosmetology services. We take the same risk with our cash clients, deciding how much work to do before securing our payment in advance. For my estate planning clients, it is easy for me to start work with a cash deposit and accept barter as part of the final payment. The utility of bartering will vary with the circumstances. One friend of mine was shocked, even

dismayed, that I would barter. I could not understand his indignation until I realized that he could not distinguish non-cash transactions from fraud. He could only see barter as an attempt to hide one’s income. As with cash payments, I issue a receipt for the goods or services received and make sure the value is entered in my billing system. Barter income should be accounted for like cash; it is not a discount system or a way to avoid reporting income. The IRS understands that barter is alive and well and has forms for reporting barter income, whether through exchanges (see sidebar) or one-on-one. Ask your tax professional for details. I continue to barter as the opportunities arise. Sometimes, as with the fictional Walter Cunningham and my very real client with the furniture, it is because the client truly cannot pay cash for my services. Other times, it is because I recognize that a client has goods or services that she might be interested in exchanging. So far, no one has offered me hickory nuts. Elizabeth Blust (egblust@blustlaw.com) is an estate planning and probate attorney. Nisha Bhakta, 3L at California Western School of Law, contributed to this article.

BARTER EXCHANGES Bartering communities exist where goods or services are given point values so that parties can bank the value of their goods or services for multi-party exchanges, rather than simply one-on-one bartering. An ethics committee of the Connecticut Bar Association opined that the fee charged by the exchange program did not constitute fee sharing with non-attorneys, as long as all members were charged the same fee and attorney-client confidentiality was not breached (CBA informal opinion 15-04 (July 15, 2015). This was the opposite finding from the American Bar Association’s 1979 Informal Opinion 1430 (Jan. 8, 1979), which found that the membership fee in a “trade exchange” constituted fee sharing. In State Bar of California Formal Opinion, No. 1977-44, a barter exchange which extracted a 10 percent fee from each transaction resulted in improper sharing of fees. Also, the method of intraexchange referrals was considered advertising, which California Bar members were not then allowed to do. That opinion, however, explicitly stated that it did not preclude “any lawyer from agreeing to accept goods or services in exchange for the lawyer's services, but such an agreement should be made only in direct negotiations between client and lawyer.”

HOW WE GET OUR CLIENTS

62%

Nearly

50%

of partners/legal executives are moderately satisfied with their business development 1 Firms surveyed budgeted to spend an average of

3.65% of their revenue on marketing/business development 1

41% percent of attorneys reported hiring or increasing marketing staff as one of the top new investments in the past two years that have been most effective in developing new business 2

of survey respondents said their firm is increasing its emphasis/ focus on business development and marketing efforts 2

97%

of attorneys identified business development as a challenge today 3

1 http://legalsales.org/resources/Pictures/RD%202017%20 presentations/LSSO%20-%20LexisNexis%20Strategy%20Survey.pdf 2 https://www.prnewswire.com/news-releases/78-of-attorneysrely-on-business-development-professionals-up-21-from-2016annual-legal-marketing-association-bloomberg-law-surveyfinds-300627315.html 3 https://abovethelaw.com/2017/04/business-development-forlawyers-is-imperative/

May/June 2018 SAN DIEGO LAWYER 37

LOOKING TO GET HIRED? Highlight Your Practice and Meet Potential Clients. Join the Lawyer Referral and Information Service. Contact Michelle Chavez at 619.321.4150 or mchavez@sdcba.org Learn more at www.sdcba.org/joinlris.

38 SAN DIEGO LAWYER May/June 2018

GROWING YOUR NETWORK & YOUR BUSINESS THE IMPORTANCE OF BEING A GREAT LAWYER AND A GREAT NETWORKER BY TERESA WARREN

hen it comes to lawyers, the old saying “it’s not what you know but rather who you know” can be double edged. You won’t get far in the legal profession if you are not well educated and skilled at your craft. However, if you don’t know people, building your practice will be difficult. Being a great lawyer should always be your goal, but with the legal industry being relationship driven, building and maintaining good relationships should be at the heart of your marketing efforts. Since the 1980s when law firm marketing surveys began, referrals from clients and contacts remain one of the top ways lawyers get new business. Writing articles, giving presentations, tweeting and other marketing tactics help to reinforce your visibility and an understanding of what you do. However, the foundation of your business development efforts should be your network and the high-quality work you provide. Networking takes time, and with only 24 hours in a day, how do San Diego lawyers find ways to network on a regular basis? Randy Kay, a partner with Jones Day, starts his day with networking. “I go to a Starbucks in Carmel Valley between 7:30 and 8:30 a.m. You are guaranteed to see clients, prospects, other lawyers, colleagues and even judges,” says Kay, an IP litigator. “A stop at Starbucks is a quick way to run into a lot of people in your network. If you have the time, sit down with your morning

coffee, and then you will reconnect with even more people before heading to work. Conversations at Starbucks lead to receiving calls from clients with new projects and matters.” Before there was email and social media, lawyers built their practices primarily by engaging with people, and this “old fashioned” approach is still the best way to get business in the 21st century. Suzanne Varco, founder of the Environmental Law Group, agrees that oneon-one is the best way to network. “Get out of your office and build relationships faceto-face,” says Varco. “Referrals come from those who trust you, and if you don’t build a solid base on which someone can place their trust, you will not get those referrals.” In-person networking is what Lisa Martens, a partner at Sheppard Mullin, also prefers. “While emails and phone calls are a great way to stay in touch (and stay ‘top of mind’) in between meetings, there is no substitute for the connection you make when you spend an hour or two with someone learning more about them personally, as well as their business needs. Everyone needs to eat, so I like to arrange lunches, happy hours or dinners whenever schedules permit, but even a quick meeting over coffee allows me to build stronger relationships.” One of biggest marketing mistakes lawyers can make is to meet people, but not take the time to get to know people, or grow May/June 2018 SAN DIEGO LAWYER 39

the relationships and ultimately gain their trust so they will give you work. Meeting someone once at an event probably isn’t enough to see business come through the door. You must invest the time to build relationships with your network to see successful results. Ashely Gosal, in-house legal counsel at Bosa Development, says, “Don’t just network to meet people – network to learn from those people.” Knowing what the individuals in your network need, what skills they possess and how you can help them is vital. Helping someone in your network not only makes you a better person but also is a great way to get help — aka referrals – to come back to you. Gosal’s advice about learning from your network goes beyond a business development perspective. Networking can help expand your legal expertise and your knowledge base overall. “You can always learn something from someone — so by networking and meeting more people, you expand your potential to learn,” she states. Will every person in your network become a client? No. However, as Varco points out, “I’ve built many relationships through networking that have never provided a

“Don't just network to meet people — network to learn from those people.” direct business contact. However, so many cases come to me indirectly from someone who asked someone else who knew me. So, I credit almost all of my business to the building of strong relationships in the community through networking. Those planted seeds have bloomed far and wide.” Networking, as beneficial as it is, is not a replacement for quality legal work, but the two go well hand-in-hand. Marketing and business development efforts can never replace sound legal skills, but they are ways to stay in touch with your network and will help a broader base of individuals discover just how awesome you are.

For young lawyers, it is never too early in your career to start building a network. Stay in touch with law school friends and professors. Find community events that interest you and are attracting your contemporaries so you can meet others who are also growing their careers. Find ways to follow up and keep in contact. Go to Starbucks! “The legal community is much smaller than you think, and referrals can come from a wide range of sources,” says Martens. “Over the years, I’ve found that doing excellent work for existing clients, while also staying in touch with former clients and colleagues, other outside counsel and even opposing counsel, has led to many unexpected referrals to new clients.” As Martens notes, finding the balance between doing exceptional legal work and building your network is key. A strong network, built on the foundation of strong skills, is what you should strive to create and maintain. As Gosal states, “As much as ‘who you know’ is important, ‘what you know’ will ultimately be your most valuable asset — and one that no one can ever take away from you.” Teresa Warren (twarren@tw2marketing.com) is founder and president of TW2 Marketing.

Continued from page 21 How do you deal with winning or losing against each other? RZ: In most of our cases nobody wins. Especially when there’s a victim where someone is physically hurt, suffered a financial loss, or experienced great fear — that person lost. Warren’s client lost because they have a conviction, they may be spending time in jail, and losing a job. WD: Right, and they have a family without a breadwinner … RZ: I don’t mean to be totally downcast, but if we reach a resolution where everyone is really happy, we need to pause and enjoy it because it is not a common outcome. Usually everyone is a little displeased and everyone’s lost. Not us personally, but the parties and the victims. What do you find to be the most difficult type of case? RZ: One category is vehicular manslaughter 40 SAN DIEGO LAWYER May/June 2018

because the loss to the family is immeasurable. Because it’s not murder, no one is going to prison for 15 years or more. That is very difficult because the loss and the punishment can’t match up because the defendant isn’t culpable to the level of a murderer, even though they caused someone’s death. That is wrenching. WD: When the victims are children. Anytime there’s a high-profile case involving a child in California, invariably there is a new law passed, ratcheting up consequences very severely. Often these clients have no prior criminal history, and explaining to the client or family that they may face double-digit years in prison is very difficult to do. And, of course, the victims and victim advocates are rightfully outraged at what happened, so everyone is a loser in those cases. Anything you would like to add? WD: I think the San Diego DA’s office [has] some good people who are ethical in

fulfilling their duties, and for the most part reasonable in discussing our cases and trying to resolve matters in the current framework in which we work under. RZ: And I’ll say I’m glad we have a wellfunded public defender’s office because it wasn’t that long ago that people weren’t entitled to free counsel. There are many times where I think I’m being fair and measured, then the defense attorney will bring something up [that I] hadn’t looked at it from that perspective. I wouldn’t want to participate in a system that didn’t have that role institutionalized. Christine Pangan (cipangan@yahoo.com) is co-editor of San Diego Lawyer and a lead attorney at Legal Aid Society of San Diego. Rebecca Zipp started as a grad clerk at the DA’s office in August 2007 and as Deputy DA in January 2008. Warren Den became a Deputy PD in July 2005.

AI and Real World Ethics Ethics and Technology on the Cutting Edge By Edward McIntyre

lowly — as though pushing through a parting cloud — some of us only now are beginning to realize that AI (artificial intelligence) is shaping, and likely will dominate, our lives and futures. Well beyond our expectations. Beyond our imaginations, even. Yet this is the precise environment that California Western School of Law’s Second Annual Legal Ethics Symposium sought to tackle — with the added dimension of its ethical implications.

ndaunted, it brought together scientists, technology experts and legal ethicists from around the country and across the globe to address the current state and foreseeable future of AI; the moral and legal dilemmas in regulating new technology; privacy, big data and medicine; and the impact of disruptive technology on public health and wellness — not an easy topic in the mix. Symposium presenters included Dr. Michael Sung from Hong Kong University of Science and Technology, by way of MIT’s Artificial Intelligence Laboratory among other institutions, as keynote speaker; and panelists Professors Thomas D. Barton, Timothy Casey and James M. Cooper, California Western School of Law; Jennifer Brobst, Assistant Professor of Law, Southern Illinois University; Professor Joshua P. Davis, University of San Francisco School of Law; Cayce Greiner, Partner, Tyson & Mendes, LLP; Dr. Fazal Khan, Associate Professor of Law, University of Georgia School of Law; Dr. Lydia Kostopoulos, Harvard University; Dr. Tokio Matsuzaki, UCSD and Kobe University Graduate School of

Medicine; Eleonore Pauwels, The Wilson Center; Brenda Simon, Associate Professor of Law, Thomas Jefferson School of Law; and Bradley Wendel, Associate Dean and Professor of Law, Cornell Law School. Brooke Raunig, Editor-in-Chief of California Western Law Review, also contributed to the discussion, chairing one of the panels. Professor Casey started the day with the reminder that the Rules of Professional Conduct, Rule 3-110 (competence) in particular, requires not only that we lawyers know the law, but also that we remain abreast of technological developments — the most spectacular of which at present is artificial intelligence. As science and technology races forward to push the limits of what AI can do, the goal of the symposium was to address the more difficult question: What AI should do? Dr. Sung set the stage with an exposition of the history of AI and an explanation of what AI is — and is not. He described how it is currently being deployed (law, radiology, banking, insurance, health care, to name a few fields) and some of its key facets

(natural language, machine learning, facial recognition, robotics). Then, he turned to the future. AI’s progression, as Dr. Sung presented his vision, is an inevitable and exponential “disrupter” — one that will drive social, business and political change on a logarithmic scale. We have, as he sees it, caught up with a future that is both exciting but, for some, will be an abrupt shift in what they find comfortable. His presentation raised overarching questions: How will AI and humans interact? And what responsibilities do we have for the development, deployment and ultimate use of AI? Against this backdrop, panelists then took on the moral and legal dilemmas in regulating new technology as a consequence of AI; some issues related to privacy, big data and medicine in relation to AI; and the impact of disruptive technology on public health and wellness given the possibilities AI can deliver — none of these a stroll in the park. May/June 2018 SAN DIEGO LAWYER 41

In the legal/regulatory arena, one question persisted: If AI is, or will soon be, increasingly and more accurately “predictive,” to the extent that legal interpretation involves description or prediction, will AI take on the role of interpreting our laws? Or, is there a role for moral judgment in determining what the law is? Will we prevent AI from usurping the responsibility and authority of lawyers, judges and citizens themselves, and should we? How?

of data to continue to test, “learn” and self-program. By gathering the complete medical information and genetic data of many millions of patients, medical science can improve diagnostic precision. It can refine and “invent” more precise therapies and medications. It could significantly improve strategies to combat or even eliminate certain diseases. But when does medical precision become surveillance and control? The public benefit is demonstrable. But who should be allowed to exploit that

If AI is, or will soon be, increasingly and more accurately “predictive,” to the extent that legal interpretation involves description or prediction, will AI take on the role of interpreting our laws? Take, by way of example, the autonomous, self-driving car. Assume it overcomes all the technological hurdles of safe and lawful operation. How in an emergency — without fault — must it react when confronted with the dilemma of killing a pedestrian, or swerving and killing or injuring its passenger? Several pedestrians? Several passengers? A crowded school bus? Who gets to elect the programming? Employing what “norms” — potential liability of the manufacturer; of the owner; some other “moral” standard? Should the passenger have a “protect-the-passenger” option at all costs? To consider another sphere, AI — especially “deep learning” — needs vast arrays

personal data? To what end? Where do privacy rights surrender to the public good? What ethical standards govern the choices — choices science is currently making? On another front, what is the long-term impact of robots and robotic toys that provide support and companionship to persons suffering from dementia? To others with severe social inhibitions? Will they supplement or supplant human caregivers? Human partners? What is a “good” outcome? Are there limits or norms? Set by whom?

of the issues at best. No one, however, suggested that she or he had definitive conclusions. Rather, the panel discussions were Socratic, not didactic; ideas ebbed and flowed; many more questions surfaced than answers — as one might expect from the range of far-reaching topics the panelists explored. A few audience members questioned reshaping law school professional responsibility curricula if lawyers are to assume a role in shaping how AI’s development affects society. One certainty evolved. As AI and its development races ahead, its disruptive force grows exponentially abrupt. For some this will be frightening; for others, exciting. As one futurist expressed it: AI’s impact on our lives will be like the introduction of electricity on past generations. “Everything will be ‘cognified.’” The overarching questions, however, remained. How will AI and humans interact? What responsibilities will we have for the development, deployment and ultimate use of AI? Inventors and developers will continue to focus on what AI can do. This symposium raised a critical question: what should AI do? More importantly, who should be involved in making those decisions? Asking the question is the important first step. The California Western School of Law 2018 Legal Ethics Symposium took that step.

Did the audience and panelists come away with clear and simple answers by the end of the day? Hardly. Some may have gained a tentative understanding of the dimension

Edward McIntyre (edmcintyre@ethicsguru.law) is an attorney at law and co-editor of San Diego Lawyer.

threat, Google: “the thermometer in a casino’s lobby aquarium.”)

Authentication is frequently an issue in evidentiary rulings concerning information that might appear on the internet or social media webpages. The Court’s ruling probably eliminates that problem in criminal cases, and the extension of that decision to civil cases seems likely.

Continued from page 13

Consumers rarely understand the connectivity of these devices, their information transmissions, and that manufacturers aren’t motivated to provide substantial security against misuse and infection. IoT devices are sold at competitive and declining prices. Security and updates would add substantially to their cost. This is just another thing to worry about, but we can’t ignore it even though we think it’s beyond our paygrade. To judge that yourself, visit the FBI’s recommendation for nine steps to protect your IoT devices. (For an example of the 42 SAN DIEGO LAWYER May/June 2018

Finally, on May 24, the California Supreme Court decided Facebook v. Superior Court — a case that is important to the criminal defense bar and could become important to civil e-Discovery. The ruling involved a federal statute, the Stored Communications Act, that social media companies have relied upon to avoid responding to subpoenas or communications contained in users’ accounts. The Court concluded that Facebook and Twitter must respond to the defense’s subpoenas for all information public at the time of the request.

Bill Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP.

Friend & Patron Members The San Diego County Bar Association gratefully acknowledges its Sustaining Members for their outstanding commitment and generous support in 2018. PATRON MEMBERS Marc Adelman

Alexander Dychter

Steven Lorber

Doc Anderson

Sergio Feria

Laura Miller

Judy Bae

James Frantz

Gerald Mulder

Jedd Bogage

Douglas Glass

Charles Pinney

Connie Broussard

Alvin Gomez

Teodora Purcell

Jose Castillo

Charles Hayes

Johanna Schiavoni

Andy Cook

Van Haynie

Todd Stevens

Steven Coopersmith

Stephen Hogan

Kimberly Swierenga

Ezekiel Cortez

Rhonda Holmes

Thomas Warwick

William Dougherty

Richard Huver

Andrew Wilensky

New Patron Membership Option Patron members may now attend any SDCBA CLE or social event at no charge. For details, visit www.sdcba.org/renew or contact the SDCBA Member Services team at mbr@sdcba.org.

FRIEND MEMBERS Laura Ashborn

David Dugan

Raymond Navarro

Steven Barnes

Thomas Fitting

Anthony Passante

Robert Baumer

Susan Fox

Anne Perry

Scott Carr

Ronald Greenwald

Kristi Pfister

Ajay Gupta

Michael Roberts

Mark Kaufman

Stella Shvil

Linda Cianciolo Teresa Dietz

Marguerite Lorenz

May/June 2018 SAN DIEGO LAWYER 43

IN THE RACE How racing cars helps me keep my practice on track By Jenifer Swanson

ince the very first time I went to a vintage car race as a little girl with my dad, I have been in love with the sport. My dad had a 1957 Corvette that he raced and I would go with him to every event to see him drive. As I grew up, I began to do more than just watch.

irst, I was allowed to polish the car, then to check fluids and eventually to do small tune-up items. When I was about 12 years old, I told my dad I wanted to race too. He was more than happy to teach me to drive, but in order to drive, he explained, I had to first learn to work on the car. I had to be able to understand the car I was racing, and I had to be able to safely prepare it for the race. I find it supremely satisfying to prepare my own race car. In order to be competitive, each detail of the car must be examined. After each race, the car is inspected, and in the off-season

44 SAN DIEGO LAWYER May/June 2018

we have a checklist of maintenance items to be completed. Attention to detail is paramount because even one overlooked detail can lead to disaster. The same is true in my legal career — I have to understand my client’s goals and how to prepare my case to meet those goals, and a failure in that preparation can lead to wrong results. I learned this lesson in dramatic fashion the year my dad had sold his ‘57 Corvette and bought a ‘64 Corvette in its place. In order to prepare the ‘64 to be raced, it had to be completely dismantled; each component, down to each nut and bolt, was removed, inspected and replaced or reinstalled. Clearly, this was a long and timeconsuming process. And we were under a deadline: the historic races at Laguna Seca in Monterey were fast approaching. As time grew short, it was “all hands on deck.” All of my dad’s friends were at his shop for what seemed like around the clock. I was there every weekend with my friend, Leslie, who always came to the races with us. We all wrenched on the car until it was finally ready. We were running a day late, but we were going to make it. We loaded the car up, drove to Monterey and unloaded late Friday night.

the track. The first few laps of the race, the car was running great. However, because I had never driven this car before, I was taking it easy, working out the kinks. As I approached turn five (a sharp uphill left-hand turn), I eased off the throttle and began to apply pressure to the brakes. But the brake pedal fell to the floor. Literally, the pedal fell off. The adrenaline shot through my veins as my mind raced to come up with a solution. Luckily, there were no other cars around, so I only had to worry about stopping myself without damaging the car. Still, I had very few options. I chose to downshift, using the engine as a brake. I was also counting on the fact that the track headed uphill so gravity would help. Still, I turned into the corner at a speed that I knew was too fast. In the best case scenario, the car would go into a controlled slide and scrub some speed. More likely, I would spin. But I was hoping in that case, the spin would stop the car. As expected, the Corvette started to slide. Then the rear end broke loose and I spun across the track. It must have been spectacular to see. I’m not sure how many times the car spun, but it came to a stop on the opposite side of the track, only inches from the concrete barrier.

Saturday morning was the second practice session. We gave the car one more check, I suited up, jumped in and drove to pre-grid, where all the cars sat, engines revving, until, one by one, we were directed onto

When the tow truck came at the end of the race and the rescue workers asked what happened, I picked the brake pedal up off the floor of the car by way of explanation. Once the car and I were safely back in the

pits, we all started looking for what went wrong. It only took a moment for my dad to notice the little clip lying on the floor of the driver’s compartment. That clip was supposed to slip on the end of the brake pedal, keeping it securely in place. Under a tight deadline to make the race, and given the massive amount of work that had to take place, this one tiny detail had been overlooked. All the major components worked exactly as planned, but this one little clip had almost caused immense damage. That experience drove home what I had already known on an academic level — the smallest detail can make the biggest difference; one small clip forgotten can cause catastrophic failure. Understanding the big picture — how the car should perform and how the parts work together to achieve that performance — focuses our race preparation. However, we must still slow down and focus on the details, be sure each step is properly completed. A hasty preparation with even the tiniest missed detail can mean watching the race from the

sidelines, instead of crossing the finish line. Precision makes the difference, and nothing takes the place of thorough preparation.

Precision and forethought are the difference between a successful transaction and one that never crosses the finish line. The same is true in legal work. Thorough preparation is the key to achieving results. Grasping the big picture — the client’s ultimate goals — will help you focus on the relevant preparation. But it is careful attention to detail during that preparation that makes the difference. Each legal piece must be examined and each step properly executed. To complete the metaphor, precision and forethought are the

difference between a successful transaction and one that never crosses the finish line. My work is mainly transactional, so for me that means making sure that each step in a transaction is completed correctly and on time, that each deal point is properly addressed, that all the necessary paperwork is included and correct, that deadlines are met, and so on. For those who litigate, it could mean that each piece of evidence is reviewed, that each procedural step (especially the smallest technicalities) is followed, and that each argument is explored. So, I keep this little clip on my desk to remind me how each time I pick up my pen, it is like picking up a wrench; I will go to work carefully, with precision, contemplating each step to be sure that we reach the finish line. Jenifer Swanson (jswanson@swansonlawoffices.com) is an attorney with California Business Law Group, PC.

100

LUB

EN PERC T C 2018

THANK YOU 100 PERCENT CLUB 2018 The San Diego County Bar thrives only because of the support and talents of each and every one of our members. Thank you to our “100% Club” firms, whose attorneys are all members of the SDCBA in 2018. Your leadership and dedication to our profession is truly appreciated.

Allen, Semelsberger & Kaelin, LLP Antonyan Miranda, LLP Atkinson, Andelson, Loya, Ruud & Romo Austin, Brownwood, Cannon & Santa Cruz Balestreri Potocki & Holmes Beamer, Lauth, Steinley & Bond, LLP Bender & Gritz, APLC Bernstein Litowitz Berger & Grossman LLP Best Best & Krieger, LLP Blackmar, Principe & Schmelter APC Blanchard Krasner & French Bobbitt, Pinckard & Fields, APC Bonnie R. Moss & Associates Brierton, Jones & Jones, LLP Brown Law Group Carothers DiSante & Freudenberger LLP Casey Gerry Schenk Francavilla Blatt & Penfield, LLP Christensen & Spath LLP Circuit McKellogg Kinney & Ross, LLP Cohelan Khoury & Singer Collinsworth, Specht, Calkins & Giampaoli, LLP D’Egidio Licari & Townsend, APC Daley & Heft, LLP Dentons US LLP Devaney Pate Morris & Cameron Dietz, Gilmor & Chazen, APC District Attorney’s Office Duckor Spradling Metzger & Wynne Dunn DeSantis Walt & Kendrick, LLP Epsten Grinnell & Howell, APC Erickson Law Firm APC Farmer Case & Fedor Ferris & Britton, APC Finch, Thornton & Baird, LLP Fleischer & Ravreby Fleming PC Fragomen, Del Rey, Bernsen & Loewy, LLP Frantz Law Group APLC

Fredrickson, Mazeika & Grant, LLP Frisella Law, APC Garmo & Garmo LLP Gatzke Dillon & Ballance LLP Gomez Trial Attorneys Goodwin Brown Gross & Lovelace LLP GrahamHollis APC Green Bryant & French, LLP Greene & Roberts LLP Grimm, Vranjes & Greer, LLP Haeggquist & Eck, LLP Hahn Loeser & Parks, LLP Henderson, Caverly, Pum & Charney LLP Hiden, Rott & Oertle, LLP Higgs Fletcher & Mack LLP Hooper, Lundy & Bookman, PC Horton Oberrecht Kirkpatrick & Martha, APC Hughes & Pizzuto, APC Jackson Lewis PC Judkins, Glatt & Hulme LLP Klinedinst PC Koeller, Nebeker, Carlson & Haluck, LLP Konoske Akiyama | Brust LLP Law Offices of Beatrice L. Snider, APC Legal Aid Society of San Diego, Inc. Lincoln Gustafson & Cercos LLP Littler Mendelson PC McCloskey, Waring & Waisman LLP Men’s Legal Center Family Law Advocates Miller, Monson, Peshel, Polacek & Hoshaw MoginRubin LLP 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 Public Defender Office of the San Diego City Attorney

Paul, Plevin, Sullivan & Connaughton LLP 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 San Diego Unified Port District Sandler, Lasry, Laube, Byer & Valdez LLP Schwartz Semerdjian Cauley & Moot 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 Minton Cardinal Doyle & Smith LLP Solomon Ward Seidenwurm & Smith, LLP Solomon, Grindle, Lidstad & Wintringer, APC 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 Wilson Elser Moskowitz Edelman & Dicker LLP Wilson Turner Kosmo LLP Winet Patrick Gayer Creighton & Hanes Wingert Grebing Brubaker & Juskie LLP Wirtz Law Witham Mahoney & Abbott, LLP Withers Bergman LLP Wright, L’Estrange & Ergastolo

Understanding the “Difficult” Pro Bono Client By Amy Fitzpatrick

n occasion at our office, pro bono attorneys will complain about the “difficult” clients they are working with. It’s important to understand the situation(s) your pro bono client may be in and the background that has helped shape them. The client who is 30 minutes late for her appointment wasn’t being inconsiderate. Actually, she had recently been moved to a domestic violence shelter on the other side of town and didn’t realize it took two buses to get to your office. Some of the traits that many pro bono clients possess are attributed to growing up in generational poverty . Many of those who experience generational poverty face logistical obstacles to planning ahead, a diminished belief that they have the ability to control events, and a greater dependency on oral communication. Gaining the trust of your client is at the heart of a good working relationship. A

majority of pro bono clients have been victims of abuse, whether it be physical, emotional, or due to their on-going struggle to survive in an unforgiving, inequitable society. By learning more about the client and forming a compassionate relationship, the volunteer attorney will become a more effective advocate. Verbal communication can be much more effective than written when working with a pro bono client. Rather than just providing written materials, it is often much more effective to take the time to go through the materials verbally with the client. It’s important to use simple language, doublecheck assumptions about the client’s understanding of the law, and provide extra explanations about the legal system. Pro bono clients are often overwhelmed by many circumstances in their lives. Repeatedly emphasizing the importance of coming to meetings and court dates, and

keeping track of paperwork and important documents is crucial. Pro bono clients don’t necessarily display the emotions or the chronological memory of details that attorneys and judges look for. Spending extra time with a client to make sure they are ready to testify, or to engage with others involved with their case, is key to success. Thousands of vulnerable San Diegans who have experienced extreme difficulties must rely on pro bono attorneys. By accommodating these difficulties with sensitivity, awareness and extra diligence, attorneys will provide higher quality services and attain a greater level of satisfaction with the pro bono experience. Amy Fitzpatrick is the CEO of San Diego Volunteer Lawyer Program.

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Intelligent Legal Solutions® May/June 2018 SAN DIEGO LAWYER 47

The 2018 Distinguished Lawyer Memorial Inductees

Robert W. Bell, Jr.

James A. Hennenhoefer

Hon. Norbert Ehrenfreund

Donald “Pat” Newell

Hon. Elizabeth A. Riggs

Join us in celebra�ng the lives and careers of the 2018 Dis�nguished Lawyer Memorial Inductees by making a tax-deduc�ble contribu�on to the Dis�nguished Lawyer Memorial Fund, which beneﬁts over 50 law-related organiza�ons in San Diego County. To make a dona�on on behalf of any of the Inductees, past, or present to the DLM fund in general, please visit: www.sdcbf.org/donatedlm

PHOTO GALLERY AWARDS LUNCHEON Photos by Gates Photography The SDCBA held its Annual Awards Luncheon & Celebration of Community Service on May 1 at the Westin (Emerald Plaza). The Association's 2018 Service Award recipients, as well as winners of this year's Poster & Video Contest, were recognized at the event. Thank you to event sponsors Antonyan Miranda, AHERN Insurance Brokerage, and LawPay.

L-R: Hon. John Houston, Hon. Janis Sammartino, Hon. James Lorenz

Want to see more?

L-R: Noelle Dorman, Heidi Weaver, Jocelyn Salvatori

James Koerber

Like our Facebook page! @sdcountybar #sdlaw

Student Law Week Poster & Video Contest Winners with 2018 SDCBA President Kristin Rizzo

POSTER & VIDEO CONTEST San Diego judges and SDCBA members voted for their favorite entries from this year's Law Week Poster & Video Contest, a Bench-Bar Community Service activity, at the Bar Center on April 23.

Hon. Jeffrey Barton

L-R: Sara Kelley, Robert Caietti

Hon. Margo Lewis-Hoy

May/June 2018 SAN DIEGO LAWYER 49

PHOTO GALLERY THLA ANNUAL DINNER Photos by Paul Clark The Tom Homann LGBT Law Association (THLA) held its 25th Annual Dinner on April 12 at the US Grant.

Ambassador Rufus Gifford

2018 THLA Honorees

2018 THLA Board of Directors

L-R: Catherine Asuncion, Eran Bermudez, Angelica Sciencio, Olga Alvarez

Scott Ehrlich

BAR SOFTBALL The Kings (pictured left below) won the A Division Championship — their first title since 2012 — in the SDCBA Softball League playoffs in October 2017. Defending (pictured right below) won its second B Division Championship, and its first since 2011.

Front row, L-R: George Gonzales, John Grondona, David Loeffler, Chris Stearns; Back,L-R: Mark Rossi, Josh Maxwell, Brian Cowan, Cory Teed, Jim Brasher, Brian Grant, Jason Evans, Jim Wallace, Tony Skogen; Not pictured: Brandon Connors, Brian Klein

Do you want to join the Bar Softball League? Email league Commissioner Mike Allen at mike@wooallenlaw.com by July 10 for details.

Front row, L-R: Nick Procissi, David Vera, Lee Silber, Scott Silber, Frank Drummond; Back, L-R: Bradley Beherns, Blake Woodhall, Anthony Chalifoux, Daniel Doft, Peter Doft; Not pictured: Cameron Haas, Rick Haynie, Troy Krich, Scott Norman, Dan Petrov, Paul Pitingaro

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50 SAN DIEGO LAWYER May/June 2018

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