San Diego Lawyer Jan/Feb 2019 by San Diego County Bar Association

®® ® JAN/FEB 2019

GET TO KNOW YOUR 2019 SDCBA PRESIDENT

LILYS McCOY

501 West Broadway Suite A174

A history of

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CONTENTS ADULTING

Page

Columns 7

Features 9

Why I Belong Get to know SDCBA member Laura L. Nichols

Deans Niche Firms Address America’s Growing Access to Justice Problem By Niels Schaumann

Social Media The Weakest Link By Christine Pangan

Ethics Candor's Complications By Edward McIntyre

Technology Getting Ready for Data Disaster By Bill Kammer

San Diego County Bar Foundation $521,000 in Grants to 24 Local Nonprofits Awarded

Legal Aid Society of San Diego The Journey Toward Justice Begins Here: Stories About the Work of the Legal Aid Society of San Diego By Gregory Knoll and LASSD Team

Disctinctions and Passings

Battling Password Fatigue By Adriana Linares

Opportunity Zones By Mike Pruter

Photo Gallery

Close-Up on Lilys McCoy Get to Know Your 2019 SDCBA President By Lyle Moran

NEW RULES IN 2019

New Civility Guidelines By David Majchrzak

Notable Tax Changes Based on the Tax Cuts and Jobs Act By Julie Houth

Employment Law Update By Tanya Schierling, Jing Li and Andrew Myers

Adulting for Lawyers By Christine Pangan

Civil Procedure Changes By Courtney Baird and Chris Champine

New Year, New Beginning Bankruptcy and Filing Taxes By Julie Houth

New Criminal Laws for You By Michael Crowley and Emily Crowley Bahr

Issue no. 1. San Diego Lawyer™ (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is 619-231-0781. The price of an annual subscription to members of the San Diego County Bar Association ($10) is included in their dues. Annual subscriptions to all others, $50. Single-copy price, $10. Periodicals postage paid at San Diego, CA and additional mailing offices. POSTMASTER: Send address changes to San Diego Lawyer, 401 West A Street, Suite 1100, San Diego, CA 92101. Copyright © 2019 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.

January/February 2019 SAN DIEGO LAWYER 5

Attorney of the year Honoree

Peter S. Doody, Esq.

Bench and bar honoree

Hon. Joan M. Lewis

Congratulations to our Partner, Peter S. Doody, San Diego Defense Lawyers’ Attorney of the Year Honoree and 2019 President of the Association of Southern California Defense Counsel, and the Honorable Joan M. Lewis, San Diego Defense Lawyers’ Bench and Bar Honoree. Thank you for your contributions to San Diego’s legal community and your unwavering commitment to fighting for justice.

(619) 236-1551

HIGGSLAW.COM

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

LAURA L. NICHOLS

Seltzer Caplan McMahon Vitek

Education: University of Southern California (USC), California Western School of Law (CWSL)

Co-Editors Edward McIntyre Christine Pangan

Editorial Board Elizabeth Blust George Brewster Jr. Jeremy Evans Victoria Fuller Julie Houth Michael Olinik

Whitney Skala Renée Stackhouse Aleida Wahn Mike Wakshull Teresa Warren

SAN DIEGO COUNTY BAR ASSOCIATION Director of Outreach Strategy & Chief Communications Officer Karen Korr

Graphic Designer Attiba Royster

Publications & Content Coordinator Sasha Feredoni

Areas of practice: Estate Planning, Trust and Probate Administration Proudest career moment: I worked for Showley and Thompson, as their first and only associate attorney from 2005 until Lon Showley retired in 2011. Upon his retirement, Mr. Showley passed his successful 42-year law practice to me along with all of his wonderful clients. Family: Husband: Tyler Nichols, financial advisor at Northwestern Mutual; Daughters: Reese Ryan Nichols (3.5 going on 18) and Addison Leigh Nichols (2 in March 2019). Birthplace: Newport Beach, California. Current area of residence: Del Cerro, San Diego. If I weren’t an attorney, I’d be ... a fashion blogger. The best thing about being an attorney is ... Getting to work with wonderful individuals and families to help them protect and preserve wealth not only for themselves, but for future generations and charitable causes. Last vacation: Skiing in Bachelor Gulch, Colorado. Favorite website: Nordstrom.com.

Follow the SDCBA and San Diego Lawyer! sandiegocountybar sandiegolawyermagazine @sdlmagazine @sdcountybar

Hobbies: Traveling, food and wine tasting, exercising. Favorite book: J.B. by Archibald MacLeish. Best concert you’ve ever been to: U2 — multiple times. Favorite food: Sushi/sashimi, Con Pane’s sourdough and chocolate bread, and pizza from Buona Forchetta. Most fun/memorable SDCBA moment or meeting: When I first started practicing, we used to have the probate/trust section’s monthly lunches at the former Bar Association building. It was a great time to connect with the probate/ trust community in San Diego.

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.

Do you have a unique skill or special talent nobody knows about? There is a reason nobody knows. What one skill has helped you be successful as an attorney, and how could others develop that skill to better their practices? Determination. Setting your mind on a goal, breaking it down into parts, monitoring your progress on those parts. Do you have a mentor? Yes, Lon Showley was my mentor. What would you most like to be known for? Making people laugh and smile. What makes San Diego’s bar so special/unique? Even though San Diego is a large city, it has a small town feel where it seems that everyone knows each other.

FOR ADVERTISING INFORMATION, CONTACT LAURA TARABINI AT (760) 415-7030 OR LTARABINI@YAHOO.COM, OR VISIT WWW.SDCBA.ORG/ADVERTISING. January/February 2019 SAN DIEGO LAWYER 7

BY NIELS SCHAUMANN

DEANS

Niche Firms Address America’s Growing Access to Justice Problem Niels Schaumann here is a ballooning access to justice problem all across the U.S. today. And with more than 60 million American families reporting incomes at or below 125 percent of the federal poverty level, access to justice is not going to improve anytime soon. More than ever, resourceful, competitive and innovative law firms willing to represent low-income litigants are desperately needed.

In a 2017 report by the University of Chicago, a staggering 86 percent* of civil legal issues reported by low-income Americans in the past year received inadequate or no legal help. Inability to pay a lawyer is the principal reason why lowincome Americans go unrepresented. In many larger U.S. cities there are community law clinics that offer lowincome families legal advice and possibly representation by a volunteer attorney when available and appropriate. But these clinics are swamped with needy wouldbe clients and cannot meet the growing demand for fair and reasonable legal representation. This problem has spawned some creative and innovative solutions, as a growing number of law firms begin to specialize in offering “low bono” legal representation. One such firm is People’s Legal Services, a nonprofit law firm that recently opened its doors in downtown San Diego. Founded by Cal Western alumnus Anthony Medina, People’s Legal Services operates

on a sliding scale of fees dependent on family size and income, with affordable hourly rates and a free 30-minute initial consultation.

most cases not be handled this way unless the client is sufficiently sophisticated in the law and able to handle significant parts of the case alone.

Medina cites the experience he gained during externships at organizations such as the ACLU and the EEOC as well as California Western’s own California Innocence Project as the influences that led him to offer an alternative solution to this problem.

At California Western we offer a wide variety of experiential learning opportunities, giving students a broad array of options from which to satisfy our requirement that graduates have completed 15 or more experiential credits. These opportunities present students with many paths to explore before choosing their legal career and deciding what kind of lawyer they will be.

Niche firms like People’s are working hard to create a new business model that is workable and sustainable. In the past, firms offering low and pro bono services relied on grants to defray costs and cover expenses. The challenge for these new niche practices offering fee-scaled services is how to move from reliance on grants to sustainability based on client fees alone, and still be able to serve those who ordinarily could not afford legal representation. The goal is admirable, and if it succeeds we will likely see more such firms help to provide access to those in need. Unbundled legal services, also called limited scope representation, is another way in which law firms are trying to serve low-income clients. For example, under an unbundled model, a client might consult with an attorney at a reduced rate to prepare the case, but the client would not receive any in-court representation. This might be a good solution to keep costs down for simpler disputes and claims. More complex legal issues, however, should in

Exposure to these opportunities also encourages the innovation that leads to new ways to deliver legal services, like People’s. And innovation is essential if we are to solve long-standing and entrenched problems like access to justice for the everincreasing number of people who “cannot afford a lawyer.” If the promise of justice for all is to have any meaning, we have to solve the access to justice problem. We need innovation to allow the delivery of legal services to evolve and adapt to the changing needs of the communities we serve. At California Western we support those innovators who continue to search for new and better ways to meet the legal needs of the low-income, underserved populations within our communities. Niels Schaumann is President and Dean of California Western School of Law.

* Legal Services Corporation. 2017. The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans. Prepared by NORC at the University of Chicago for Legal Services Corporation. Washington, DC. https://www.lsc.gov/sites/default/files/images/TheJusticeGap-FullReport.pdf + Data Source: U.S. Bureau of the Census, American Community Survey, 2015 1-year estimates. January/February 2019 SAN DIEGO LAWYER 9

L AW Y E RS H E L P I N G OT H E RS

TIM PESTOTNIK OFFERING A “HAND-UP”

A longtime Point Loma resident, Tim Pestotnik first volunteered with Urban Street Angels three years ago, distributing sleeping bags and supplies to homeless youth in Ocean Beach. He soon joined the organization’s board of directors and became a donor. Urban Street Angels offers a weekly overnight shelter for homeless youth ages 18 to 25. The shelter provides food, showers, and safety to over 800 homeless youth each year. USA’s downtown transitional housing facility offers mentorship, job training, and case management services for 40 homeless youth at a time and helps 100 youth per year leave the streets for good. In 2015, USA launched 8 West, which employs homeless youth to handcraft premium soaps and candles. All sales fund USA’s programs. To volunteer or donate, visit urbanstreetangels.com. Visit 8west.org to find an 8 West retailer near you or to purchase online. The founder of Pestotnik, LLP, Tim and his partners focus on several types of business litigation matters, including real estate, securities, trade secret, and fraud litigation. Tim Pestotnik is not affiliated with the Vosseller Law Firm.

After each case, we donate a portion of attorney’s fees to a nonprofit chosen by the client.

P L A I N T I F F P E R S O N A L I N J U RY

858-429-4062 www.vosslawyer.com

VOSSELLER LAW FIRM

BY CHRISTINE PANGAN SOCIAL MEDIA

SOCIAL MEDIA TIPS:

THE WEAKEST LINK

s a new year of networking begins and the plethora of holiday events fade, we take a look at new contacts. How do you reconnect or stay connected? The easiest way can be social media, but in an era of impersonal quick-swiping and auto-response buttons, you could lose a potentially great connection due to lack of social media care.

The Mentor You viewed this former supervisor as a mentor but did not keep in touch. Now you’ve met again at a recent event, so you try to connect on social media. Your request is ignored. Don’t assume that your former supervisor remembers you! Many supervisors have had numerous interns or mentored more new attorneys over the years than they can count. They may be involved in various organizations, attending events daily and meeting people constantly. While they may like you and could even give you a good reference, you may need to jog their memory. If you send a LinkedIn request, add a personal note reminding this person of who you are. For example, “Hi Brenda, it was great to see you again at the MLK breakfast. I was one of your summer law clerks back in 2016. Your mentoring made the internship one of the best experiences I had in law school and I’d love to stay in touch.” A New Contact/Friend You were at an event last month and hit it off with Bob. You feel a real connection, plus he practices in an area that you want to pursue. But you were out of town during

the holidays and work got hectic upon your return. Now it’s the new year, you’re thinking about new possibilities in your practice and you remember Bob. But does he remember you? If you want him to, don’t just follow his public social media profiles and like his posts, especially if you have an unrecognizable handle. Send a personal message reminding him of who you are, “Hi Bob, it was great meeting you at Michelle’s holiday party last month. What are the odds we’d be wearing the same ugly sweater? I’d like to stay in touch, and perhaps we can collaborate on one of those cases you were talking about. When you have a chance, let’s get coffee next week.” Having such a message in your inbox also helps future you remember why you connected with Bob in the first place. An Old Colleague/Friend You saw this friend comment on a mutual friend’s post. Or you saw this person speak at an MCLE but had to rush out and didn’t get a chance to say hello. In any case, you want to reconnect, so you send a friend request. Again, don’t assume this person will recognize you and accept. Perhaps your name changed, or you look different from seven years ago. Send an email or Facebook Messenger note as an introduction such as, “Hey Carla! It’s Chris from law school (my last name used to be Smith but I got married last year). I saw you on the panel yesterday at the SDCBA but didn’t get a chance to say hi. It would be great to catch up!”

But You’re Famous You’re involved in various committees and organizations. You are well-respected by your colleagues and an expert in your field. You come across someone you think could be a potential partner in some of your projects and want to keep this person on your radar. So you send a LinkedIn request. Surely, this person would feel privileged to accept the honor of connecting with you! Nothing happens. You might not have lost that connection had you included an introductory message such as, “Hi Casey, we haven’t met in person but I’ve heard some great things about you. Judge Doe was just telling me about your work in X. I’ve been involved in X as well and have been thinking of doing a training on X and Y this year. I’d like to stay in touch and perhaps collaborate on a project in the near future.” From seeing useful posts to keeping in touch regularly, connecting on social media can be highly beneficial and enhance existing relationships. Whether or not someone accepts your request, it is always a good idea to send a personal note to create a stronger link. The auto-template “I’d like to join your LinkedIn network,” is typically inadequate. Lay a good foundation for your request so your social media connection can be solid, long-lasting, or simply even exist. Christine Pangan (cpangan@yahoo.com) is a lead attorney at the Legal Aid Society of San Diego and Co-Editor of San Diego Lawyer Magazine. January/February 2019 SAN DIEGO LAWYER 11

E ETHICS

BY EDWARD McINTYRE

CANDOR’S COMPLICATIONS M

CARTOON BY GEORGE BREWSTER JR.

acbeth introduced Michelle Gold to Sara and Duncan.

“Michelle’s a former student. She has an issue every trial lawyer — practice long enough — will likely face.” Macbeth gestured to his guest to start. “I’m in the middle of a trial. Yesterday I called an expert witness. He’s a computer scientist. Also a lawyer. Testified quite well. Did excellent on cross. Jury seemed impressed. Even Judge Howell liked him.” Duncan nodded. “Good day for the home team.” “Until we got back to my office. He sat down. Looked real smug. Said: ‘Well, we pulled that off.’ I froze.” Macbeth intervened. “What happened?” “He admitted all the tests he testified he’d done — never did them. Basically made up the results. Said if he’d done the work, he’s sure he’d have gotten those conclusions. But he was too busy. So he just wrote his report with findings he manufactured.” Sara interrupted, “I’d have strangled him.” “I almost did. When I told him he had to correct his report and testimony, he used a few expletives. Then left for the airport. We’re dark today. I talked with our managing partner. She said talk to you. So here I am.” Sara replied, “This happened yesterday? California’s new Rules of Professional Conduct apply.” “Which I haven’t had time to study. I’ve been too busy preparing for this trial.” Macbeth opened his copy. “Rule 3.3 addresses candor to the court. Let’s start there. First, the rule prohibits a lawyer making a false statement of fact or law to a tribunal, or failing to correct a previous false statement. Not surprising. But not our facts.” “Right, I didn’t make any false statement.” “The rule does address our situation. If a lawyer, the client or a witness the lawyer called has provided material evidence, and the lawyer learns after the fact the evidence was false, the lawyer has to take ’reasonable remedial measures.’” 12 SAN DIEGO LAWYER January/February 2019

“What’s that mean?” “The only guidance the rule itself gives is, ‘if necessary, disclosure to the tribunal,’ unless 6068(e)(1) and rule 1.6 — our client confidentiality obligation — prohibits disclosure.” Sara interjected, “Since the client didn’t testify, I don’t see how 6068(e)(1) applies.” Macbeth nodded. “I agree. The untruthful client presents a different range of issues. Let’s stay focused on this expert. I assume his testimony is material?”

“How can I let it stand? I know it’s false. I think I have to ask the court to withdraw it.” “I agree. Now, his testimony?” “He won’t correct it. He’s gone back to Arizona.” “What options does that leave you with?” “Seems like the new rule won’t let me do nothing. So — tell the judge I have to withdraw his testimony? Instruct the jury to disregard it?” Michelle looked away. “My client will fire me. No, kill me.”

“Does your client know — yet?”

“You might first consider telling the court exactly what happened. Perhaps under oath. Ask for a mistrial. So you can find and present an honest expert. Your client shouldn’t suffer from this guy’s dishonesty.”

“Not yet. I wanted some advice.”

“If the court says no?”

“Well, rule 1.4 requires that you tell your client. This is certainly a significant development relating to the representation.”

“Once you’re honest with the court about the testimony, can you let it stand?”

“I agree. But I want to present a plan of action. Not just engage in a, ‘Houston, we have a problem,’ conversation.”

“So doesn’t that mean instructing the jury?”

“Wise move. Let’s talk about solutions. First, the report that’s in evidence. What do you think?”

“A comment to the rule says a lawyer also has to consider whether rule 1.16(a) might come into play and require withdrawal.”

“Critical to the case. Judge Howell even allowed his report into evidence as an exhibit. Over objection.”

“No —” “And if my client says no?”

“Sorry, you guys know these new rules a lot better than I do.”

We can talk this through.”

Sara smiled. “Whether continued representation will result in a violation of the rules or State Bar Act.”

Macbeth held up one hand. “You might also consider the inevitable finger pointing.”

“Like this new candor rule.” “Precisely.” Macbeth signaled he had a question. “You talked to your managing partner?” “Yes, she knows all the facts. Told me to get your advice.” “Then rule 5.1 likely also comes into play. It addresses the duties of managerial and supervisory lawyers.” “What’s that got to do with this mess?” “If a lawyer with firm management, or direct supervisory responsibility learns another lawyer’s conduct violates a rule or State Bar Act provision, and does nothing when reasonable remedial action can avoid or mitigate the consequences, the manager or supervisor is also responsible for that lawyer’s ethical violation.”

“Geez. What a cluster —“

“What?” “Rules 1.1, competence, and 5.1 and 5.3, supervision, require us to supervise lawyers we employ — even those not in our firm — and non-lawyer contractors, among others. Be prepared for questions about how you supervised this expert and his work. Whether you consider him a lawyer or a computer geek.” “So we’re talking malpractice?” “Not directly. But the rules do help define a lawyer’s duty for purposes of a breach of fiduciary duty claim.” “What about the guy who did all this?” “Arizona has, with some modification, adopted the ABA Model Rules. Similar to California’s new rules. It has a rule 3.3 dealing with candor obligations.”

“That’s a form of vicarious liability!”

“Would that apply to an expert — testifying?”

“Fair way to put it. So you might suggest your managing partner give me a call.

“If he contends that he wasn’t ‘representing’ a client, there’s rule 8.4(c).

It says fraud, deceit, dishonesty all constitute professional misconduct. Manufacturing evidence likely fits.” “I’ll say.” Michelle stood. “Thanks, Macbeth. Guys. I’d like to say I feel better. Perhaps a bit wiser.” “Sometimes that’s the best we can hope for. We’re always here.” Editor’s note: Reference to "6068)e)(1)" is to Business and Professions Code section 6068, subdivision (e)(1); in BGJ Assoc. v. Wilson (2004) 113 Cal.App.4th 1217, 1227 the court reiterated that the Rules of Professional Conduct help define the duty component of the fiduciary duty a lawyer owes a client. See also Stanley v. Richmond (1995) 35 Cal. App.4th 1070, 1086-1087; Mirabito v. Liccardo (1992) 4 Cal.App.4th 41, 45. 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. Edward McIntyre (edmcintyre@ethicsguru.law) is a professional responsibility lawyer and co-editor of San Diego Lawyer.

T TECHNOLOGY

BY BILL KAMMER

GETTING READY FOR DATA DISASTER his column asks more questions than provides specific answers. The recent power outage in downtown San Diego reminds us all of the hazards inherent in our dependence upon computers, the internet and the cloud. Not long ago, most lawyers had personal control over the devices and systems they used, and stored their client and critical information locally. If they had backups of that information, those backups and disaster recovery tapes were also stored locally. If we learned anything from the impact of disasters like Hurricane Katrina, your backups best not be local and should be in another time zone.

Law office devices and systems have changed dramatically since 2005. Those devices now include mobile phones and tablets in addition to our previous desktop and laptop computers. We may also have virtual assistants such as Ruby Receptionist, store critical information “in the cloud” and use cloud-based software (SaaS) such as Office 365. This dramatically changed environment suggests a need for a timely re-examination of our preservation and recovery procedures before we incur power loss, internet outages or natural disasters. Consider first an unexpected and sustained power loss such as the recent one in San Diego. (Naturally it happened on a Friday when attorneys were cranking out lastminute filings.) Unless you are fortunate enough to have an uninterruptible power supply (UPS), all of your systems will go down and your work-in-progress may be lost. You may lose access to your phone; 14 SAN DIEGO LAWYER January/February 2019

you will lose access to your desktop and your Wi-Fi network; and you might lose access to the internet. Your internet service provider (ISP) will probably have battery-powered backups in place, but a local power loss will take down your cable modem and your router. If your practice depends upon internet access, consider a small investment in a battery-powered backup power source that could keep your cable modem and router online so you can facilitate immediate disaster recovery. Some will remember the world of WordPerfect, a lawyer favorite. But law offices have gradually switched to Microsoft Office in the years since. In 2005, those with the Office software suite probably had installed it on every computer in the office. Access to Office has evolved over the years, and more and more clients and law offices are now using Office 365. In fact, Microsoft now reports there are 155 million monthly active users. Software as a service has many advantages for lawyers but also presents several challenges. Our offices may now depend entirely on access to this internetbased software, and the software at times might become unavailable. Whether it’s Office 365 or some other cloud-based software, you can always use downdetector. com to determine whether there are problems at Microsoft. (You may have been one of those affected by a five-hour outage on Nov. 19, 2018: https://istheservicedown. com/problems/office-365/history.) If you visit downdetector.com, you will see icons for all the principal services and websites we expect to be available

to us 24/7. But they all suffer availability problems from time-to-time. There is always the possibility that the problem you see is yours and not Microsoft’s. To check that out, visit downforeveryoneorjustme. com. You may not like the answer, but at least you can know the problem. Also remember that availability differs from recoverability. If our work product, eDiscovery data and client files are stored in the cloud, where is that storage located? Is it backed up, and where are those backups stored? Can you access those backups in a case of data loss and how do you do that? Considering all the great features of software such as Office 365, still question whether you enjoy comprehensive backup and the complete recovery of your data and work product. Analyzing those issues may be a subject for another day, but there are consultants with advice about services that supplement Office 365 and provide more comprehensive backup and recoverability. Much has changed since 2005 though we may still operate with a mindset conditioned by sources and services we used to use. A timely reexamination of these issues and challenges is absolutely necessary.

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

BATTLING PASSWORD FATIGUE By Adriana Linares

191.

That is the average number of passwords a business employee keeps track of, according to a report from LastPass, a popular password management service. 150. This is the number of online accounts held by the average user, according to a recent survey by another popular password management company, Dashlane. The Lastpass report claims that 81percent of confirmed data breaches are due to passwords. No doubt because in 2018 these were the most popular (and worst) passwords:

What Are Passphrases? Saints come marching in. Why is the wine always gone? Let the good times roll in 2019! Basically, it’s a phrase or a sentence, like a line from your favorite poem or a lyric from your favorite song. “RedBeans” is an easy password to crack. But how about ‘R3d b3ans 0n Mondays!’ instead? Changing letters into numbers and symbols, adding spaces (when allowed) and ending with punctuation make a passphrase harder to crack, but easier to remember.

123456

So, just why are passphrases better than a password?

password

#1 Passwords Can Be Easy to Crack

123456789

qwerty

Both robots and humans can crack passwords and that’s because most of us create passwords based on things that we can easily remember. We often use use dates, words and places that are familiar and personal to us. Because of password fatigue, we often create passwords that just meet the requirements of a site, we don’t tend to go that extra mile ... errrr, character.

iloveyou

#2 A Passphrase Is Harder to Crack

Why do so many of us do this? Apparently, it’s how we deal with an overload of passwords. Let’s call it “password fatigue”. While we are making it easier on ourselves, we are also making it easier for hackers. We all know the tips for creating a “strong” password: make them long, make them complex, don’t make them obvious — yep, yep — we know (insert eye-roll here). And still, we do not comply. Well, let’s try something new: passPHRASES instead of passWORDS.

Due to a passphrase’s complex makeup, it can be difficult for the most advanced password-cracking tools to pre-compute, brute-force or even guess a good passphrase. That is, in typical password world, it could be your name, your birth year or the name of your loved one. But passphrase like “Move dem chains in the 504!” is infinitely harder to crack than Saints504.

12345678 12345 111111 1234567 sunshine

#3 Major Operating Systems and Applications Support Passphrases Operating systems including Mac, Windows and Linux all support passphrases of up to 127 characters. This allows us to opt for longer passphrases for enhanced security. Most of the online services we all use today also allow for complex passwords/phrases. #4 A Passphrase Easily Satisfies Complex Password Rules Today, most sites and services require complex (and admittedly, annoying) criteria — at least two numbers, one special character, lower and upper cases, etc. You can easily create passphrases that meet these requirements. #5 Passphrases Are Easy to Remember Most people think that passphrases are difficult to remember as compared to passwords. Your passphrase can be anything from a song lyric to your favorite line from a movie. And if you manage to alter it with numbers, spaces, and punctuation, it becomes stronger. So now that we are all going to start using passphrases, how will we manage and remember all 150+ of them? In our next article we’ll talk about “password managers.” Adriana Linares (mto@sdcba.org) is SDCBA's Member Technology Officer. You can find more tech content curated by Adriana at www.sdcba.org/lawandtech. Make an appointment with Adriana at www.sdcba.org/techappointment.

January/February 2019 SAN DIEGO LAWYER 15

OPPORTUNITY ZONES

By Mike Pruter

he 2017 Tax Cuts and Jobs Act that went into effect February 2018 contains a new program called “opportunity zones,” which incentivizes investments and job creation in economically distressed communities. This past October, the U.S. Treasury Department unveiled a number of new rules and regulations designed to provide clarity and answer lingering questions about the tax implications of investing in these newly designated areas, of which there are 879 in California alone. An Opportunity Zone is an economically distressed community where new investments, under certain conditions, may be eligible for preferential tax treatment. The Tax Cuts and Jobs Act, signed into law in December 2017, created a new tax incentive program that encourages investors to make longterm financial investments in Qualified Opportunity Zones (QOZs). In exchange, the investor receives a number of benefits related to the deferral of capital gains taxes. The first step to realizing the tax benefits of investing in a QOZ is to invest capital gains resulting from a sale or exchange in 16 SAN DIEGO LAWYER January/February 2019

a Qualified Opportunity Fund within 180 days of the sale or exchange. A Qualified Opportunity Fund is an investment vehicle organized as a corporation or a partnership that uses the gains from a prior investment. This short, 180-day timeline may prove challenging for investors, who will have to figure out the best way to acquire or repurpose their properties and assets within this short window. One is not eligible for the benefits afforded by the Opportunity Zone program if the investment into the Fund occurs after this 180-day window. The Qualified Opportunity Fund must hold 90 percent of its assets in QOZ Property, or a penalty is paid for failing to meet this requirement. An exception to this rule can be made if it is shown that failure to maintain the 90 percent requirement is due to reasonable cause. The three main incentives for taxpayers to invest their gains in QOZs are to defer recognition of capital gains, to eliminate recognition of up to 15 percent of these capital gains, and to potentially eliminate recognition of all capital gains upon the sale or exchange of a Fund investment.

These Qualified Opportunity Funds are very different than traditional funds, and investors will have to be creative to structure them correctly to comply with the codes in place. There are three different types of properties that qualify as QOZ Property: • Qualified Opportunity Zone Stock is stock in a U.S. corporation that is a QOZ Business • Qualified Opportunity Zone Partnership Interest is any capital or profits interest in a U.S. partnership that is a QOZ Business • Qualified Opportunity Zone Business Property is tangible property used in a trade or business of a Qualified Opportunity Fund All three types must be acquired solely for cash, must have been a QOZ Business when acquired, and must qualify as a QOZ Business during substantially all of the Fund's holding period. A QOZ Business is defined as any trade or business that meets all of the following requirements: • At least 70 percent of the tangible property it owns or leases was

purchased after Dec. 31, 2017 • It is the first to use the property in the QOZ, or it must substantially improve the property • The property must be used in the QOZ during substantially all of the QOZ Business's holding period • At least 50 percent of the total gross income of the QOZ Business is derived from the active conduct of business in the QOZ • A substantial portion of the QOZ Business's intangible property is used in the active conduct of business in the QOZ • Less than 5 percent of the QOZ Business’s property is attributable to nonqualified financial property, which includes debt instruments, stock, partnership interests, annuities and derivative financial instruments • The QOZ Business cannot be a country club, massage parlor, hot tub facility, racetrack, health club or store whose principal business is the sale of alcoholic beverages for consumption off premises

If you’re looking to participate in this program, you must first identify an investment within a QOZ. QOZs are economically distressed communities which have been nominated as a QOZ by a state and certified as such by the U.S. Treasury. California Governor Jerry Brown nominated certain areas as QOZs earlier in the year, and the U.S. Treasury completed the process by designating almost 900 of these areas in California as QOZs, expiring at the end of 2028. Bringing new projects to life in San Diego has proven difficult for developers in recent years, but the introduction of QOZs has offered new incentives for investors to begin developing in areas that have previously been overlooked. Many central parts of San Diego are now considered QOZs, including waterfront property in Barrio Logan, as well as parts of Logan Heights, Grant Hill, Southcrest, Challes Valley, Fox Creek and Lincoln Park. The areas in San Diego County designated as QOZs generally have a high poverty rate and have previously been unattractive to developers — the median family income for those living in

QOZs throughout San Diego County is $33,600. On Oct.19, 2018, the U.S. Treasury Department and the Internal Revenue Service issued proposed regulations that address some of the significant questions arising under the new legislation, but a number of significant issues remain unclear and are in need of regulatory clarification. A second set of regulations are expected to be issued in early 2019. Among some of the remaining issues are: whether and the extent of any grace period that will be provided for a Fund to reinvest investor capital in QOZ Property; whether debt financed returns of capital to investors will be considered sales or exchanges for purposes of the end of the tax deferral period; and the treatment of interim gains on sales or exchanges of QOZ Property of the Fund and the reinvestment of such gains by the Fund during the Fund term. Mike Pruter (mpruter@allenmatkins.com) is a Partner in the San Diego office of Allen Matkins.

January/February 2019 SAN DIEGO LAWYER 17

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“Adulting” for Lawyers By Christine Pangan

ou’ve likely seen the hashtag, finding it funny, obnoxious, or even used it yourself. A quick survey of social media friends shows that #adulting or #adultingsohard has a range of definitions and uses, from “comically framing the drudgery of being a grown up” as a friend describes it, to referring to more challenging scenarios one faces as an adult such as caring for aging parents. A term mostly used by millennials, it can leave older generations scratching their heads wondering what is so difficult or noteworthy about an adult acting like an adult. As traditional markers of adulthood are delayed well beyond 18 years old for many in their 20s to even 40s these days, “adulting” refers to behaving in an adult manner or doing activities associated with being a grown-up, with the element of perhaps not really wanting to or being proud of finally being able to do these things. Adulting includes being responsible (i.e. paying bills on time), having a career, buying a house or car, delaying instant gratification to achieve more mature goals, taking basic care of yourself and possibly others, and meeting typical “grown-up” obligations. In today’s legal world, what would #attorneyadulting look like? Paying back student loans For recent graduate Julie Houth, one marker of attorney adulthood is paying back student loans. “The transition from law student to lawyer can be a grueling journey because students must evolve from a student lifestyle to an adult lifestyle, like holding a 9 to 5 job and ultimately becoming a respectable professional in society,” Houth says. Many graduates of the past decade deferred their student loans for years after graduation due to difficulty in

finding jobs or starting a practice that paid enough to make basic living expenses as well as repay loans. “Paying back student loans were probably delayed because millennials had other responsibilities like finishing up grad school and other bills like rent, food, and gas for their cars,” says Houth. Like the traditional adult financial responsibility of paying a mortgage, the ability to pay back student loans has become a form of “adulting” for many new attorneys. Having an efficient, “grown-up” practice Inefficient time management or the luxury of time-wasting seems to separate the less mature from the grown-ups. In the legal setting, there comes a time when many practitioners move from not having enough clients to finding it overwhelmingly challenging to keep track of everything going on with each client. As caseload increases, some new solos find that working from home or a coffee shop becomes increasingly difficult and would prefer (and can now afford) an actual office space. For sole practitioner Alara Chilton, “adulting” as an attorney includes examining your business systems and determining if you are implementing ones that are efficient. “For some attorneys, that may mean adding a law practice management system and/ or an accounting system,” says Chilton. Other attorneys discover they need to hire someone to help rather than do everything themselves. But the business side is just one aspect of being a grown-up in the legal profession for Chilton who notes, “Adulting is not complete until you have become familiar with and are aware of your ethical obligations as an attorney.” Meeting ethical obligations Perhaps one of the least favorite parts of becoming an adult is no longer being able

to do (or get away with doing) whatever you want due to adult obligations. As a law student or post-bar, you may have had some leeway, and working under attorney supervision were not expected to know all the rules. As an attorney, however, you now have ethical obligations. “For example, the new California Rules went into effect in November 2018 — in addition to rule revisions there are several new rules that also went into effect. Attorneys also have obligations under the State Bar Act,” Chilton says. “Ultimately, knowing your ethical obligations will result in a more rewarding and efficient practice, not to mention allow you the privilege of keeping your bar card.” Being a responsible adult (lawyer) Attorneys balance many duties to clients and the legal system that they may not have had previously. As one thoughtful attorney put it, “adulting” as an attorney includes keeping up to date with changes in laws and new precedent, zealously advocating for clients, maintaining client confidentiality, upholding one’s duty of candor to the tribunal, respecting all members of the legal profession, volunteering in the community and doing pro bono work, and adhering to ethical obligations under the Model Rules of Professional Conduct. In a largely selfregulated profession, attorney adulting is more than just growing up and having a job to take care of yourself. It includes taking on the grave responsibility of upholding our legal system through being competent, ethical, and diligently promoting justice for all members of society. Christine Pangan (cpangan@yahoo.com) is a lead attorney at the Legal Aid Society of San Diego and Co-Editor of San Diego Lawyer Magazine. January/February 2019 SAN DIEGO LAWYER 19

Lilys McCoy Photos by Jason de Alba

COMMUNITY BUILDER By Lyle Moran

Whether she is attending a local legal function or walking through the halls of Thomas Jefferson School of Law, Lilys McCoy is likely to be approached by a familiar face with whom she shares a close connection.

Her passion for building close ties with other attorneys is a primary reason she sought out, and has now taken on, her newest leadership role: serving as the San Diego County Bar Association’s 2019 president.

Such interactions frequently occur, her friends and colleagues say, because McCoy is a people person who can connect with a broad array of personalities.

McCoy hopes to use her one-year term to help county bar members build their own strong support networks.

As a result, she has developed a vast network during her nearly three decades as a litigator, educator and bar leader in San Diego’s tight-knit legal community.

“I want everybody in the organization, from the most senior all the way to the brand new member, to feel connected and to feel like the SDCBA is a place to come to get mentoring and to network,” McCoy said.

McCoy said it is especially important for lawyers to have deep bonds given the stress associated with their work and the heavy demands placed on their time.

San Diego Superior Court Judge Loren Freestone, the SDCBA’s 2017 president, said McCoy has the perfect personality to achieve that aspiration.

“I love doing anything and everything I can to bring my lawyer community together and to figure out how we can continue doing this most important function in society without being crushed under the weight of it,” McCoy said. “We need to be there for each other.”

Freestone described McCoy as one of the most caring individuals he knows and someone who establishes great relationships with others through attentive listening.

“She allows everyone the opportunity to speak and listens to them, which will go a long way in fulfilling her goal of allowing every member to feel important and special,” he said. “I’m confident that with Lilys as president, the caring of the member will come first before anything else.” McCoy said one of the underpinnings of her desire to see close connections formed within the county bar is the ERG theory, which addresses the interplay between “existence, relatedness and growth.” The variation on Maslow’s hierarchy of needs is discussed in Josh Kaufman’s book, The Personal MBA: Master the Art of Business. “When people have what they need to survive, they move on to making friends and finding mates,” Kaufman wrote. “When they’re satisfied with their relationships, they focus on doing things they enjoy and improving their skills in things that interest them.”

THE NEXT GENERATION Law students and young lawyers are two groups the 51-year-old McCoy hopes will feel a greater sense of relatedness through her work at the county bar. She is well-positioned to make that happen as a faculty member at Thomas Jefferson School of Law, where she serves as director of the school’s Center for Solo Practitioners and its Epsten Grinnell & Howell, APC National Trial Team. McCoy said she wants to create ways for the bar to more actively engage with law students.

QUICK FACTS Favorite website www.brainpickings.org Biggest pet peeve Leaving long voicemails instead of emailing or texting Favorite book Bird by Bird by Anne Lamott Favorite quote “Between stimulus and response there is a space. In that space is our power to choose our response. In our response lies our growth and our freedom.” Viktor E. Frankl Personal motto To whom much is given, much is expected. Morning person or night owl? Night owl Staying in or going out? Staying in Favorite place on earth Home with my family Favorite meal Mediterranean Person you would most like to have dinner with My uncle, Page A. W. Anderson, M.D. (1942-2008) My father, Walter Lee McCoy Jr. (1929-1990) Something most people don’t know about you I can wiggle my left ear Favorite concert of all time St. Petersburg Philharmonic, Vienna, November 1995 Favorite app Audible

“Law school can be all-consuming, but if we go to students and we provide opportunities for them to see the bar and all of its strength, I think that they’ll definitely see us as a place for them to call home as well,” she said. McCoy also wants to open up some of the new lawyer programming for law students and offer them chances to hold “bite-sized” leadership roles. “I want them to feel like they can find their way into their career pipeline through the doors of the San Diego County Bar Association,” she said. Attorney Kristin Rizzo, the 2018 SDCBA president, said McCoy has connections with the next generation of lawyers to make that goal a reality. She said she often sees law students approach McCoy on the street to greet her, and she has witnessed McCoy mentoring former students in the SDCBA’s member lounge. McCoy has done great supporting the county bar’s “New Lawyer Forum,” she said. “Her particular focus on helping students and new attorneys is going to be a huge benefit to the bar association,” Rizzo said. “They will have someone who really understands them and will place a focus on their growth.”

LOVE OF TEACHING One way McCoy closely interacts with law students is through the four classes she teaches: California civil procedure, competitive trial advocacy, evidence, and solo practice concentration. McCoy said she enjoys the challenge of trying to help students comprehend legal concepts, and she loves learning new things from her pupils.

Her zest for the job was apparent during her evidence class held on Veterans Day. McCoy was at ease asking students for answers to questions involving both real cases and hypothetical situations. Even while discussing serious legal topics, McCoy was quick to introduce some levity, including through images she displayed for the class. For a hypothetical involving Studio 54 — the infamous New York nightclub — McCoy put up a photo of Andy Warhol, Calvin Klein, Brooke Shields and Steve Rubell. “For those of you who don’t know what Studio 54 is, I’m not going to help you out because it is going to make me feel old yet again,” McCoy quipped. Another slide pictured Marlon Brando as Vito Corleone in The Godfather. “A mentor of mine used to say that all of life can be understood through The Godfather books, a really grim outlook on life in general,” McCoy said. “But I will say that lines like, ‘It’s not personal. It’s just business,’ and ‘Revenge is a dish best served cold,’ are useful in understanding human nature.” McCoy said she shows the visuals in hopes of making the material more memorable for students, and they also provide a side benefit of being a creative outlet for her. Her approach has been well-received by students, including Toyosi Adesoye, a 2L who is in McCoy’s evidence class and on the trial team she coaches. She said McCoy builds the students’ confidence by giving specific compliments when they answer a question in class correctly or make a strong argument in trial competition. McCoy also sprinkles in constructive criticism and “little nuggets of wisdom.” “I like to think she is Switzerland,” Adesoye said. “She is just the balance you need for class, school and the team.” The trial squad has performed admirably under McCoy, with Adesoye helping it win the Association of Business Trial Lawyers Mock Trial Championship in November. McCoy said she also remains thrilled with the team being named the “most professional” at the National Ethics Trial Competition in Sacramento several years back.

OVERSEEING INCUBATOR Meanwhile, McCoy has led Thomas Jefferson’s Center for Solo Practitioners since its 2012 inception. In this post, she helps new lawyers start their own practices and encourages them to find ways to reach underserved groups through their work. McCoy says the position involves mentoring and coaching, and she frequently draws on her two decades of legal practice prior to joining Thomas Jefferson in imparting wisdom to participants. She practiced consumer and business litigation, handling both jury and bench trials. She also represented clients in judicial arbitrations, contractual arbitrations and mediation hearings. McCoy said she knew from the time she was in middle school she wanted to be a lawyer. While she does not recall a lightbulb moment, McCoy acknowledged her very close relationship with her maternal grandmother, Ruth Anderson, likely played a role. Her grandmother had considered attending law school in young adulthood and later did so in her 70s when McCoy was young. “It was a matter of looking back and thinking maybe she could do something like that,” said Leoné McCoy, Lilys’ mother. McCoy graduated from the University of California, San Diego with a B.A. in political science with department honors in 1987 before completing her law degree at the University of Arizona’s James E. Rogers College of Law in 1991. She was admitted to the California bar later that year. Despite her long-held career goal, McCoy said she entered the legal profession with some trepidation before growing more comfortable. “I described it as a suit of clothes that I had been issued when I was sworn into the bar, and the suit did not fit me quite right,” McCoy said. “It took me several years to grow into it. When I finally did, then I really felt like a lawyer who could contribute to the profession and do a good job for my clients.” She started her transition to legal education in 2010 by teaching classes for UC San Diego Extension’s paralegal program. McCoy said she quickly fell in love with teaching and decided to pursue a post at Thomas Jefferson, ultimately landing the role

L-R: Stacy Park, Chiharu Sekino, Kristin Rizzo, Lilys McCoy, Sunyong Tang, Patrik Shah directing its incubator. “I was not running from practice,” McCoy said. “I was running to a passion for education.”

A FOCUS ON MENTORING Younger lawyers McCoy assisted during their time in the incubator and beyond have high praise for the bar president. Joshua Bonnici, managing attorney at Bonnici Law Group in San Diego, called McCoy a “super mentor” who has always been willing to share her Rolodex to help others. “She has been selfless and strived to make practicing lawyers in town the best they can be,” said Bonnici, an incubator participant. “I’m waiting for the day I can return the favor and do something for her.” Fellow incubator participant Nicholas Moore, managing partner at Moore Long & Vernon LLP in San Diego, seconded Bonnici’s assessment. “I don’t think there is anybody in San Diego who does more for young lawyers in terms of guidance and mentorship than Lilys,” Moore said. “She is incredibly generous with her time and advice.” Moore said McCoy has been particularly helpful in providing guidance about how to handle difficult opposing counsel. Angelica Sciencio, an immigration and family lawyer in San Diego, said she too has benefited from McCoy’s sage advice. Sciencio, who previously shared office space with the incubator, also noted she has never heard McCoy say a mean thing about anyone.

“She will always find something positive to share or see a positive side,” Sciencio said. “I tell her that one day I want to be as diplomatic as she is.” McCoy called mentoring the “lifeblood of professional growth” and said all veteran attorneys should help counsel younger lawyers. She is credited with playing a key role in working to revitalize the county bar’s mentoring program in recent years and wants to see it continue to improve. The bar has decided to hold several events a year where people of different experience levels can come together to get to know one another and potentially form mentormentee relationships. The bar’s directory will soon provide more information on attorneys willing to serve as mentors. “You have to have good mentoring, but a lot of people who want to be mentored are shy about asking, understandably, and a lot of people who want to mentor are just busy,” McCoy said. “So we were looking at ways that we could make it easier for mentors and the mentees to connect.”

BROAD RESPECT McCoy said she is very passionate about mentoring because it has been vital to her professional trajectory. She counts as mentors Administrative Presiding Justice Judith McConnell of the 4th District Court of Appeal; former U.S. Representative Lynn Schenk; San Diego Superior Court Judges Paula Rosenstein and Cindy Davis; and mediator Judy Copeland. McCoy also feels special gratitude for the lawyers she has worked closely with over the years, including her former law partners, January/February 2019 SAN DIEGO LAWYER 23

Lilys McCoy and and her wife Ann Moses

L-R: Kristin Rizzo, Lilys McCoy, and Ellen Miller-Sharp at the San Diego Pride Parade

QUICK FACTS What did you want to be when you grew up? A lawyer Best professional advice you received when you were just starting out Mistakes can be fixed; own up to them and move on What advice would you give a new lawyer today? Get involved in your local legal community. That involvement will give you the support and friendship of other new lawyers and put you in touch with potential mentors. Biggest career high so far Being referred a case by the court clerk who had just watched me in trial What would you be if you weren’t a lawyer? A journalist Do you have a morning ritual? Coffee Who inspires you (professionally and personally)? My mother Celebrity Sightings Harrison Ford Which famous person do people say you look like? I have been told that I look like Jodi Foster on a few different occasions, once by a deponent just as the deposition was concluding and his lawyers were leading him away. Is there a celebrity who you think you look like? Growing up in the 1970s I had a Marcia Brady look going on. At the end of your Presidency, what is the one thing you hope you can say about your term? That the Association was well-served

James Robertson, now of Bravo Law Group, and Ellen Turnage.

Louellen McCoy said her older sister Lilys has been a caring, people-oriented person since a young age.

McCoy first connected with many of her female mentors through her service to Lawyers Club of San Diego, which works to advance the status of women in the law and society. McCoy served as president of the organization.

“My sister is like the girl next door in a lot of ways,” she said. “I think so many people like her because of that down-to-earth quality.”

Justice McConnell said the “congenial” McCoy did a superb job in that role and expects she will perform just as well leading the SDCBA. “She will be good at collaborating with key stakeholders, and that is important in a big organization like the county bar,” McConnell said. Judge Rosenstein agreed that McCoy is a great team player who does not hog the spotlight. “It enables the people she is working with to really shine, grow and improve their own skills to the benefit of the organization she is leading,” Rosenstein said. The judge said she also appreciates how McCoy is willing to offer her time to others facing challenges or problems.

FAMILY SUPPORT McCoy’s family members say she has long been someone others turn to for help with problem-solving, which is part of what makes her a strong leader. Leoné McCoy said her daughter also is great at building trust. “It is critical if a person is going to accept the leadership mantle, that people believe in them, like them and trust them,” she said. “That has always been an important feature of her career.”

Ann Moses, McCoy’s wife, said she admires how Lilys closely studies leadership to bolster her approach. Moses said McCoy will read books and scholarly articles about the topic, as well as listen to talks on different leadership styles. “She never assumes she is doing everything correctly, because she figures there must be a way for improvement, whether in herself or in her organization,” Moses said. “It is what makes her so good at what she does.” McCoy said one can always learn to do things in a more effective way, so she is approaching her role as county bar president with a “beginner’s mind.” That is a Zen Buddhism concept referring to bringing an attitude of openness, curiosity and eagerness to new situations. “Somebody like me with 26 years of experience, I still need to stop for a moment and see things anew, not just say, ‘Oh, we’ve always done it that way,’ or ‘I know how to tackle this because I’ve done this three times before,’” she said.

CHANGE AT THE TOP McCoy will have to adjust to working with a new SDCBA executive director following the departure of Ellen Miller-Sharp, who held the role for nearly 11 years. She left at the end of October to become the director of bar relations, collaborations and special projects at the California Lawyers Association, a new statewide bar association formed as a result of the split of the State Bar.

The SDCBA responded by creating a search committee and hiring Vetted Solutions to conduct a national search for the post. The organization also sent out a stakeholder survey to get a sense of what traits are desired in a new leader. “It’s going to be a lot of rolling up the sleeves and doing the hard work,” McCoy said. “But it’s also really exciting too, because these are opportunities to learn more about the association and to reach out to various pockets of the association that we may not necessarily deal with on a regular basis.” Rizzo said a new executive director could potentially be in place by the end of the first quarter of 2019. She also said McCoy was a great fit to serve as president during the transition. “Her calm, her wisdom and her experience will be beneficial to our association as we have some change taking place,” Rizzo said. Miller-Sharp agreed. “In this transition, it is important for the bar president to be known in the legal community and to be respected,” she said. Miller-Sharp highlighted that McCoy has a great reputation in the broader San Diego community as well. Toni Atkins, president pro tempore of the California State Senate, is a powerful political leader who has deep respect for McCoy. “She is committed to the values that make this country and our legal system great — particularly equal justice under the law,” Atkins, a San Diego Democrat, said in a statement. “Lilys understands deep in her core how the concept of fairness contributes to a better community and a better world for all.”

McCoy said she is grateful for the confidence those in the local legal and broader community have in her, but also stressed her thankfulness for the support of the county bar’s other volunteers. “I could not do this work without tremendous leadership and talent that we have on the board and in our sections and committees,” she said.

ROOM FOR GROWTH McCoy hopes to work with those SDCBA leaders to help the bar do even more in the realms of access to justice, diversity and inclusion, judicial independence and judicial system funding. One way she hopes to boost access to justice is through further reform of the bar’s Lawyer Referral and Information Service.

in this society,” McCoy said. “Just being out is one of the most important things anyone who identifies as LGBTQ can do.”

FAMILY TIME McCoy maintains a very busy schedule, but when she has downtime, she enjoys spending it with her family. She and Moses have two sons: 14-year-old Joshua and 13-year-old Jonathan. McCoy said they like to travel, with previous trips including journeys to the Grand Canyon and Yosemite National Park. She also has a habit of jotting down priceless quotes from her sons, some of which she shares on Facebook. “I would have liked to live in your century,” Jonathan told her in July.

She played a key role in the work in recent years to open up existing panels to more lawyers, while also establishing new panels, including those for clients of modest means.

When McCoy shared during a drive that she knew from a young age she wanted children, Jonathan responded: “You just didn’t think they would turn out this bad.”

In addition, McCoy said she hopes to see effective implementation of the bar’s new diversity policy pertaining to speakers and panelists putting on continuing legal education programs.

McCoy also enjoys singing in the choir at the church where she and Moses met, St. James by-the-Sea Episcopal Church in La Jolla. She hopes to continue doing so as president amid an even-busier schedule.

McCoy’s presidency itself speaks to the county bar’s support for diversity, as she is the first openly gay woman to hold the role. McCoy and Moses held a commitment ceremony in 2002 and were married in 2008.

Moses said she believes her wife will be able to deftly manage her county bar responsibilities with her work and leisure activities.

McCoy also served as co-president of the Tom Homann LGBT Law Association in San Diego from 2005-07. “We cannot do too much to increase diversity and inclusion in this profession and

“I feel like we have had 17 years of preparing for her to do this exact thing,” Moses said. “I am very confident she is going to do well.” Lyle Moran (@lylemoran) is a freelance legal reporter.

Both Atkins and McCoy received awards from the Conference of California Bar Associations at an event in San Diego in September 2018. McCoy, a former chair of the CCBA, was given the Charles M. Pfeiffer Award for her work with the organization. Darin Wessel said McCoy’s time with the CCBA, formerly known as the State Bar Conference of Delegates, will serve her well in her post with the San Diego bar. He said McCoy was the chair amid the controversy, and she helped steer the organization forward on a positive course. “She is definitely a consensus-builder,” said Wessel, a CCBA board member who has also served in SDCBA leadership.

L-R Top: Ann Moses, Lilys McCoy L-R Bottom: Jonathan Moses-McCoy, Josh Moses-McCoy January/February 2019 SAN DIEGO LAWYER 25

26 SAN DIEGO LAWYER January/February 2019

NEW RULES IN 2019

New Civility Guidelines By David Majchrzak

hortly after I transferred into my firm nearly a decade ago, Heather Rosing discussed how her father, an incredible lawyer in his own right, described the practice of law as a noble profession. I don’t recall the context of the conversation or even why he reached this conclusion. But that verbiage has stuck with me. Over time, the meaning of it has evolved for me. At times, I consider what we do: helping our clients to address problems that they could not resolve on their own. Other times, I look at how we do it, or at least are expected to do it. Namely, we are there to serve our clients, the courts and the public’s confidence in the justice system, even though our paychecks are usually tied to only one of those. So, why does this noble profession populated by some of the brightest minds and biggest hearts need guidelines to promote civility? There are several potential culprits. First, there is the ever popular use of the phrase zealot advocate. Of course, the original zealots were a fanatical sect arising in Judea during first century

A.D. and militantly opposing the Roman domination of Palestine. Although nobody reasonably believes that lawyers are charged with taking up arms to overthrow those who are currently in power, sometimes this warrior mentality seeps into the practice in ways that make it more likely to escalate problems, rather than resolve them. And anybody who knows the story of how the ideas of “zealous” and “advocacy” were first paired to describe Lord Henry Brougham in early-19th-century England understand that the two can be a combustible combination. Indeed, his approach to representing Caroline of Brunswick placed a country on the brink of civil unrest. And then there is the more basic thought. When you place two people in adverse positions, even if they are the agents for those with a real interest in the matter, they are at high risk for letting emotions usurp the positions of civility and professionalism. Perhaps because of this, California once had previous Business and Professions Code section 6068, subdivision (f ), which required

lawyers to “abstain from all offensive personality.” Of course, in 1996, the Ninth Circuit concluded the statute was unconstitutionally vague. Without a statute or other express requirement to act “nobly” as advocates, lawyers benefit from reminders of what is expected of them. Locally, at least a few lawyers thought we could use that reminder even when former subdivision (f ) was still in effect. In the late 1980s, both the bench and the bar leadership perceived a change in San Diego’s collegial culture among civil practitioners. The majority view was that moving from a master calendar to independent calendars precipitated a new attitude amid new concerns. During the transition into the fast track system, lawyers who had been accustomed to litigating cases for more than five years had to adapt to new time pressures, a more restrained granting of continuances, and an increase in sanctions. Some practitioners adapted more gracefully than others. In 1989 and 1990, the San Diego County Bar Association and the local bench January/February 2019 SAN DIEGO LAWYER 27

NEW RULES IN 2019

Civility Rules Continued collaborated to draft the initial Code into a single document entitled, “Attorney involved in the process. ABTL perceived of Conduct in an effort to highlight Civility and Practice Guidelines.” Both that perhaps the professionalism that the importance of maintaining civility, efforts again involved a collaboration of should be expected of lawyers was integrity and professionalism. Providing the bench and the bar. falling again, whether due to issues that such guidelines was also arose from longer litigation consistent with what other due to court funding To review the Attorney Civility and Practice jurisdictions were doing at the issues, the increasing use Guidelines on the SDCBA website, visit: time, and the SDCBA believed — and sometimes abuse that it was a good idea to — of electronic means of www.sdcba.org/codeofconduct be among the number who communication, or other adopted them. The Daniel T. reasons. Broderick III Award arose out For more Legal Ethics content visit: The SDCBA jumped at of the creation of the Code tackling this challenge. of Conduct to keep the legal www.sdcba.org/legalethics The Civility, Integrity community focused on civility; and Professionalism leaders of the legal community The SDCBA Legal Ethics Committee also Committee had recently wanted to make sure that been folded into the Legal publishes articles related to ethical practice civility was not viewed as just Ethics Committee. So, the bi-weekly in This Week at the Bar. the focus of the moment. Legal Ethics Committee The Code of Conduct has now twice been revised, first in 2008, which included the addition of 50 tips from the bench, which evolved into the SDCBA Guidelines for Effective and Professional Advocacy, and most recently this year, which resulted in a melding of the Code and the Guidelines documents

The most recent revisions began fairly simply. The Association of Business Trial Lawyers approached SDCBA about revising the civility guidelines with the goal of getting as many organizations in the community as possible to be

was tasked with revising the Code of Conduct and Guidelines for Effective and Professional Advocacy. The LEC formed a subcommittee that worked with ABTL and the Superior Court bench to address an initial draft of proposed guidelines that largely retained the same form as the

Won't You Be My Civil Neighbor? By George Brewster Jr.

ivility. In the practice of law, we know — we SHOULD know — what that means. What it entails, and the consequences for any uncivil behavior. But do we behave civilly in real life? Should we apply our rules of professional conduct to our private associations/ encounters? The San Diego County Bar Association has an Attorney Code of Conduct. Just altering the words a bit (say, duties owed to your neighbor rather than to the court, etc.), here are some rules of conduct that might be useful for our personal contacts and maybe even impersonal (i.e. social media) discussions: Neighbors should always be courteous and respectful to each other. Neighbors should always be candid with each other.

28 SAN DIEGO LAWYER January/February 2019

Neighbors should attempt to resolve, by agreement, their differences relating to neighborhood matters. Treat neighbors who hold adverse opinions with common courtesy, good attitude, good manners, fairness and due consideration. When asking a neighbor about an issue, proceed as though a judicial officer were present. Neighbors should not arbitrarily or unreasonably withhold consent to a just and reasonable request for cooperation or accommodation. Do not attribute to a neighbor a position not clearly taken by that neighbor. Neighbors should conduct themselves so that they may conclude each matter with a handshake.

I can’t say that our national discourse is any worse than it was when the camps supporting Jefferson or Adams went after each other. But what is greatly different is that the uncivil commentary goes viral in an instant. Lawyers are leaders in the community. We have the training to argue points without calling people names. Let us lead by example. Just my humble opinion. Please don’t unfriend me on Facebook. George Brewster Jr. (sandsbrew@aol.com) is a retired attorney after 35 years of practice, including JAG, private practice and the last 30 with the County of San Diego, Office of County Counsel.

NEW RULES IN 2019 Code and the existing Guidelines. But this was only the beginning. Because the guidelines were designed to be something that everybody in the community would follow, it made sense to involve as many as possible in their construction. To have a wide range of input, the SDCBA solicited comments from the American Board of Trial Advocates, the American Constitution Society, Consumer Attorneys of San Diego, the Federal Bar Association, the Federalist Society, Foothills Bar Association, La Jolla Bar Association, North County Bar Association, Ramona Bar Association, San Diego Defense Lawyers and approximately a dozen diversity bar organizations regarding commentary they would want included within a set of civility guidelines. All comments received — even those outside the comment period — were integrated into a proposed document. Once all of the feedback was accumulated, the draft was taken to the LEC at large. That group then recommended significant restructuring and rewording, but retention of the concepts. This revision largely followed the form of the Code of Conduct, but integrated the Guidelines as comments. Also, because the civility guidelines are inherently aspirational, the revised document eliminated references to ethical obligations set forth in the Rules of Professional Conduct and/or the State Bar Act, which mandate or forebear conduct. Accordingly, the new guidelines were prepared and circulated adopting these revisions and then sent to each of the organizations who had provided commentary, including the bench. After receiving nothing but positive feedback, the SDCBA adopted these guidelines. Nobody reasonably believes that the existence of guidelines in any profession will guarantee that each member will live up to the high standards expected of him or her. But San Diego lawyers are fortunate to have a resource to remind them what they should be and what they should aspire to. David Majchrzak (dmajchrzak@klinedinstlaw.com) practices in the area of legal ethics and litigation of professional liability claims at Klinedinst PC.

Civility: A View from the Bench By Hon. Katherine Bacal, San Diego Superior Court

fter the County Bar adopted a Code of Conduct, the San Diego Superior Court incorporated the Code into its Local Rules. It’s reasonable to assume the Court will do the same with the Bar’s new Attorney Civility and Practice Guidelines. Why do civility rules need to be written down? Shouldn’t attorneys treat each other with decency and respect without being told to do so? Many attorneys — including most who practice in San Diego — strive to be civil, professional, and courteous. However, and unfortunately, almost everyone has dealt with an attorney who seemed to enjoy making opposing counsel’s life miserable. Will the new Civility Guidelines make dealing with such attorneys easier and better? Probably not. Those attorneys will continue to do whatever they believe they can get away with while staying just on the right side of the disciplinary line. Or, the bad actors go over the line and the State Bar steps in. Another set of attorney conduct rules or guidelines, whether or not incorporated into the Court’s rules, won’t ensure compliance with the California Rules of Professional Conduct, nor will they make nasty people nice. On the other hand, there are expectations stated in the Bar’s new Guidelines that might not be a matter of mere common sense. Attorneys who would say that they comport themselves with a high degree of civility might be surprised to learn that some of their actions violate the Guidelines. Indeed, the Guidelines are violated on a regular basis by otherwise civil attorneys. For example, the Bar expects attorneys to refrain from proposing a stipulation in the presence of the court unless the other parties previously agreed to it. (§ II-G.)

Many times, attorneys at ex parte hearings suggest resolving the dispute between the parties by a stipulation. Most of the time counsel are truly just trying to come up with an amicable resolution. Sometimes, though, counsel try to demonstrate to the court how reasonable they are (in contrast to unreasonable opposing counsel). The other side has not had the chance to contemplate the new proposal. Would the court think an attorney is being obstreperous if they don’t agree to the proposed stipulation? While the proposed resolution may be reasonable, it could also have unintended consequences (at least for the party on whom it was sprung). A better, more civil solution is to tell the court that there may be a way to work the matter out, and ask to speak to the other side outside the presence of the court. Better still, confer with counsel before your matter is called (see Comment #41.) In addition to reading the Guidelines, I’d also suggest reading the Comments. Some may be helpful and even surprising. For example, many attorneys don’t know how to properly address a judge in court. It’s “the Court.” (see Comment #18). Not “Dude” (as I was once called). Similarly, although not specifically stated in the Comments, jurors are not “you guys.” “Ladies and gentlemen of the jury” works just fine. I think I speak for all my colleagues when I say nothing makes us happier than parties working things out between themselves. But if you can’t, the next best thing is to litigate civilly, with integrity and professionalism. Read the new Attorney Civility and Practice Guidelines. Share them with your colleagues. Consider specifically agreeing with opposing counsel to follow them. And thank you for making San Diego the best place to practice law.

January/February 2019 SAN DIEGO LAWYER 29

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NOTABLE TAX CHANGES BASED ON THE TAX CUTS AND JOBS ACT By Julie Houth

ax is a constantly changing area of law, especially after the President passed the Tax Cuts and Jobs Act (TCJA) in 2017. Some laws were implemented immediately while others started in the 2018 tax year. Most individual TCJA changes expire after year 2025. Although there are several tax changes, here are some notable changes that should be considered when filing a federal personal income tax return for the 2018 tax year.

Deductions Taxpayers have the choice to elect the standard or itemized deduction. Both types of deductions have changed after the TCJA took effect. Standard The TCJA increased the standard deduction amount for all filing statuses beginning in 2018. The increased changes from 2017 to 2018 are shown below for each filing status: Single: $12,000 in 2018; previously $6,350 in 2017 Married Filing Jointly or Qualifying Widow(er): $24,000 in 2018; previously $12,700 in 2017 Married Filing Separately: $12,000 in 2018; previously $6,350 in 2017 30 SAN DIEGO LAWYER January/February 2019

Head of Household: $18,000 in 2018; previously $9,350 in 2017

will need to exceed 10 percent of the taxpayerâ&#x20AC;&#x2122;s 2019 AGI.

Note that the amounts are more if the taxpayer or their spouse is blind or over age 65. Many taxpayers will no longer itemize their deductions due to the increased amount for standard deduction.

State and Local Taxes & Sales and Property Taxes

Itemized Many itemized deductions have been affected by the tax reform. Taxpayers and tax professionals should be aware of the changes in this area. The new law could affect how much a taxpayer should withhold from his or her income earned with his or her employer because some itemized deductions may no longer be available. Because the changes in this area are extensive, below are some itemized deductions that have been altered as of the 2018 tax year: Medical and Dental Expenses According to the new act, taxpayers can deduct certain unreimbursed medical and dental expenses that exceed 7.5 percent of their 2018 adjusted gross income (AGI) if taxpayers elect to itemize. In the past, unreimbursed medical and dental expenses had to exceed 10 percent of the AGI for most taxpayers to be deductible. For tax year 2019, to deduct unreimbursed medical and dental expenses, the amount

Taxpayers can deduct up to $10,000 for state and local income and sale and property taxes combined, or $5,000 if married filing separately. There previously was no cap. Unfortunately, any amount paid for state and local taxes that is above this amount cannot be deducted. Note that this deduction is applicable for foreign real property taxes. Property taxes associated with carrying on a trade or business are still fully deductible. Home Mortgage & Home Equity Interest Individuals who purchase a home in 2018 can only deduct interest up to $750,000 in mortgage debt, or $375,000 if married filing separately. If the loan was originated on or before Dec. 15, 2017, taxpayers may deduct interest up to $1 million, or $500,000 if married filing separately, in qualifying debt. These limits apply to the combined amount of loans used to buy, build or substantially improve the taxpayerâ&#x20AC;&#x2122;s main home and second main home. The interest deduction on home equity loans has been eliminated by the TCJA. This means that these loans are not

NEW RULES IN 2019 deductible unless the loan proceeds were used to buy, build or substantially improve the taxpayer’s main home or second home. This new law greatly affects new homebuyers, and taxpayers should consult with a professional for strategies on purchasing a home and the tax strategies before and after the purchase. Charitable Contributions

miscellaneous itemized deductions include investment fees, tax preparation fees, attorney’s fees and unreimbursed job expenses. Gambling losses and investment interest are personal expenses that remain deductible after tax reform. Changes to Benefits for Dependents This category of the personal tax return has been greatly altered as discussed below.

children under 17 qualify for the larger credit. Credit for Other Dependents The tax reform bill also introduces a new $500 credit for non-child dependents. The qualifying dependent must be a U.S. citizen, U.S. national or U.S. resident alien. The total of both this credit and the Child Tax Credit is subject to a single phase out when adjusted gross income exceeds $200,000, or $400,000 if married filing jointly. This means that taxpayers may be able to claim this credit if they have children age 17 or over, including college students, children with ITINs or other older relatives in the household.

The amount for charitable contributions of cash has increased from 50 percent to 60 percent of a taxpayer’s AGI. This allows taxpayers who elect to itemize their deductions to deduct TAX CHANGE QUICK HITS more of his or her charitable cash contributions for the 2018 Standard Deduction tax year. Single: Increased to $12,000 in 2018 from $6,350 in 2017 Casualty & Theft Losses Married Filing Jointly or Qualifying Widow(er): In order to deduct casualty Increased to $24,000 in 2018 from $12,700 in 2017 and theft losses, the expenses State and Local Tax Deduction must be attributed to a $10,000 for state/local income, sales and property taxes federally declared disaster. combined Claims must include the FEMA $5,000 if married filing separately code assigned to the disaster (There previously was no cap.) and the loss must still exceed Home Mortgage/Equity Interest Deduction $100 per casualty and the 2018 Homebuyers: $750,000 max or $375,000 if married net total loss must exceed 10 filing separately percent of the taxpayer’s AGI. An important note with this Miscellaneous Itemized Deductions deduction is that a taxpayer These deductions have been virtually eliminated by tax can still elect to deduct the reform starting in 2018 through 2025. casualty loss in the tax year Changes to Benefits for Dependents immediately preceding the Under the tax reform, taxpayers can no longer claim the tax year in which the taxpayer $4,050 personal exemption for each of their dependents incurred the disaster loss. because it has been eliminated. Moving Expenses

2019

The TCJA suspended the moving expenses deduction for the purpose of starting a new job. Employers will include moving expense reimbursements as taxable income in the employee’s wages because the new law suspends the former exclusion from income for qualified moving expense reimbursements from an employer. Unless the taxpayer is a member of the U.S. military on active duty, he or she cannot deduct moving expenses and amounts reimbursed by an employer will be considered taxable income. Miscellaneous Itemized Deductions These deductions have been virtually eliminated by tax reform starting in 2018 through 2025. Some eliminated

Personal Exemptions Under the tax reform, taxpayers can no longer claim the $4,050 personal exemption for each of their dependents because it has been eliminated. Child Tax Credit & Additional Child Tax Credit The Child Tax Credit has increased in value from $1,000 to $2,000 per qualifying child. Up to $1,400 of the credit can be refundable for each qualifying child as the Additional Child Tax Credit. In addition, the income threshold at which the child tax credit begins to phase out is increased to $200,000, or $400,000 if married filing jointly. This means that more families with

Note that beginning with tax year 2018, the taxpayer’s child must have a Social Security Number issued by the Social Security Administration before the due date of your tax return, including extension, to be claimed as a qualifying child for the Child Tax Credit or Additional Child Tax Credit. Children with an ITIN cannot be claimed for either credit. However, if the child’s immigration status has changed to the status of U.S. citizen or permanent resident, but the child’s Social Security card still shows “Not valid for employment” on it, ask SSA for a new Social Security card that removes those words in order to claim that credit.

In addition, if the child does not have a valid SSN, the child can still qualify for the Credit for Other Dependents. This is a nonrefundable credit of up to $500 per qualifying person. A common example of this scenario that allows a taxpayer to qualify for the Credit for Other Dependents occurs when a dependent child lived with the taxpayer in the United States and has an ITIN, but not a SSN issued by the due date of the taxpayer’s 2018 return including extensions.

Other Tax Changes Alimony Payments The tax reform has repealed the deduction for alimony and separate maintenance January/February 2019 SAN DIEGO LAWYER 31

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payments for any divorce or separation agreement executed after Dec. 31, 2018, or for any divorce or separate agreement executed on or before Dec. 31,2018, and modified after that date. Therefore, in order to avoid complete elimination of this deduction, many taxpayers seek to resolve their divorce disputes before the end of 2018. Student Loans Under the TCJA, student loans discharged due to death or disability are not included in income and applied to discharges after Dec. 31, 2017 and before Jan. 1, 2026. This means that once the taxpayer is deceased, the student loan discharged will not be considered as taxable income to the estate.

taxed net unearned income at the parents’ rate if higher. The Kiddie Tax applies to a child if all three elements are present: (1) the child has not reached the age of 19 by the close of the tax year, or the child was a full-time student under the age of 24, and either of the child’s parents was alive at the time; (2) the child’s unearned income exceeded $2,100 for 2018; and (3) the child did not file a joint return. Affordable Care Act Individuals who choose to go without health care coverage for the year will no longer pay tax penalties beginning in 2019. However, in order to avoid tax penalties, taxpayers must still have health coverage for tax year 2018.

Kiddie Tax

Future Outlook & Resources

Beginning in 2018, a child will be taxed on earned income at the rates for single individuals and on unearned income at the rates applicable to trusts and estates. This is a departure from prior law that

Each individual taxpayer’s situation varies and the changes in the tax code may or may not significantly alter a taxpayer’s refund depending on what tax changes apply to that person.

The IRS Volunteer Income Tax Assistance (VITA) and the Tax Counseling for the Elderly (TCE) programs offer free tax help and e-file for taxpayers who qualify. Local tax clinics for low-income taxpayers include the Legal Aid Society of San Diego’s Tax Clinic and the University of San Diego School of Law’s Tax Clinic. These resources are available to help taxpayers understand the new tax law changes to ensure compliance and assist with filing tax returns. Taxpayers should note that the partial federal government shutdown, the longest in U.S. history as of Jan. 19, 2019, lasting over 28 days, should not affect the issuance of tax refunds. The IRS announced that it will begin processing 2018 tax returns on Jan. 28, 2019, and it will issue tax refunds even during the partial government shutdown. Julie Houth (jhouth@gmail.com) is a staff attorney at Robbins Geller Rudman & Dowd LLP.

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NEW RULES IN 2019

EMPLOYMENT LAW UPDATE By Tanya Schierling, Jing Li and Andrew Myers

s 2019 begins, it’s time to think about new employment laws that took effect Jan. 1, 2019, and a key employment case on non-solicitation agreements that may affect your client’s business. This is, of course, not an exhaustive list of new law or landmark employment law cases, thus we encourage you to fully review employment law matters with your clients. Responding to certain realities brought to the forefront through awareness generated through the “Me Too” movement, the California legislature passed several pieces of legislation addressing sexual harassment in the workplace and an employer’s attempts to limit disclosure of such allegations:

AB 3109 — Prohibiting Limitations on Disclosure of Sexual Harassment Allegations AB 3109 adds section 1670.11 to the California Civil Code and makes unenforceable any provision in a contract or settlement, entered into after Jan. 1, 2019, that prevents a party to the contract from testifying in an administrative, legislative or judicial proceeding about alleged criminal conduct or sexual harassment by the other party to the contract or its employees/agents.

SB 820 — Settlement of Sexual Harassment Claims Similar to AB 3109, SB 820 adds section 1001 to the California Code of Civil Procedure and invalidates any provision of a settlement agreement, entered into after Jan. 1, 2019, that prevents the disclosure of factual information pertaining to claims of sexual assault, sexual harassment, gender discrimination or related retaliation filed in court or before an administrative agency. The new law does not prevent the parties to the agreement from, at the claimant’s request, including a provision that limits the disclosure of the claimant’s identity or of facts that would lead to the discovery of the claimant’s identity. This new law expressly does not prohibit a settlement agreement provision that precludes the disclosure of the settlement amount.

SB 1343 — New Sexual Harassment Prevention Training Requirements Existing law requires employers with 50 or more employees to provide supervisors with sexual harassment prevention training. SB 1341 expands that requirement. Now, employers with five or more employees must comply with the

training requirement. The law requires employers to provide at least two hours of training to supervisory employees and at least one hour of training to nonsupervisory employees by Jan. 1, 2020, and once every two years thereafter. It also requires the DFEH to develop and publish training materials for employers to use for these purposes.

SB 1300 — Amendments to the Fair Employment and Housing Act (FEHA) Under existing law, an employer may be responsible for the acts of nonemployees in a sexual harassment claim, if the employer knew or should have known about the conduct and failed to act. Nonemployees include persons such as applicants, unpaid interns or volunteers, or persons providing services under a contract. One aspect of this new law expands employers’ potential liability for the acts of nonemployees to any form of harassment prohibited under FEHA, not just sexual harassment. It applies the same standard — if the employer knew or should have known of the nonemployee’s conduct, and failed to take immediate and appropriate corrective action, the employer may be liable. Another aspect of this new law prohibits an employer, in exchange for a raise or bonus, or as a January/February 2019 SAN DIEGO LAWYER 33

Friend & Patron Members The San Diego County Bar Association gratefully acknowledges its Sustaining Members for their outstanding commitment and generous support in 2019. PATRON MEMBERS Marc D. Adelman

Alexander Isaac Dychter

Gerald S. Mulder

Doc Anthony Anderson III

Sergio Feria

Teodora D. Purcell

Judy S. Bae

James P. Frantz

Victor E. Bianchini

Matthew David Freeman

Jedd E. Bogage

Douglas A. Glass

James A. Bush

Richard A.Golden

Andy Cook

Alvin M. Gomez

Johanna S. Schiavoni

Steven T. Coopersmith

Van E. Haynie

Richard S. Sterger

Ezekiel E. Cortez

Matthew C. Hervey

Todd F. Stevens

Thomas M. Diachenko

Richard A. Huver

Kimberly Swierenga

John A. Don

Garrison â&#x20AC;&#x153;Budâ&#x20AC;? Klueck

Thomas J. Warwick, Jr.

William O. Dougherty

Don S. Kovacic

Andrew H. Wilensky

Kristine E. Rizzo Ana M. Sambold Thomas P. Sayer, Jr.

Laura H. Miller

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

Ronald Leigh Greenwald

Steven Barnes

Mark Kaufman

Linda Cianciolo

Marguerite C. Lorenz

Thomas Fitting

Anne Perry

Susan K. Fox

Clay Spiegel

NEW RULES IN 2019

EMPLOYMENT LAW UPDATE Continued condition of employment or continued employment, from (i) requiring the execution of a release of a claim or right under FEHA, or (ii) requiring an employee to sign a non-disparagement agreement that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. It is important to note that the new law does not apply to negotiated settlement agreements to resolve a claim filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process. Another aspect of the new law expressly provides that a prevailing employer shall not recover attorney’s fees and costs unless the court finds the employee’s action was frivolous, unreasonable or groundless when brought or that the plaintiff continued to litigate after the action clearly became such. In another turn at addressing gender discrimination and inequality, the Legislature passed SB 826 addressing gender composition on corporate boards of directors. Under this new law, section 301.3 is added to the California Corporations Code and provides that by the end of 2019, any publicly held domestic or foreign corporation with principal executive offices in California must have at least one female director on its board. By the end of 2021, these corporations must comply with the following: (1) If its number of directors is six or more, the corporation shall have at least three female directors; (2) If its number of directors is five, the corporation shall have at least two female directors; (3) If its number of directors is four or fewer, the corporation shall have at least one female director. Turning now to developments in case law, the Court of Appeal published several significant rulings in 2018, but few more significant than the decision of the Fourth Appellate District in AMN Healthcare, Inc. v. AYA Healthcare Services, Inc., in which the authors’ firm, Solomon Ward

Seidenwurm & Smith, LLP, represented AYA Healthcare Services, Inc., and its nurse recruiters. The AMN v. AYA decision clarifies California’s rules limiting the validity of non-solicitation agreements. AMN and AYA are competitors in the business of providing temporary nurses to health care facilities, in particular “travel nurses.” The individual defendants were former employees of AMN who left AMN and went to work for AYA as travel nurse recruiters. Each had signed an agreement with AMN not to solicit AMN employees for at least one year post-employment. Travel nurses were deemed to be employees of AMN while on temporary assignment for AMN. AMN sued AYA and the individual defendants for various claims, including breach of contract and misappropriation of confidential information, including trade secrets. Defendants moved for summary judgment on the grounds that the non-solicitation agreement was void and unenforceable under California law, specifically, Business & Professions Code section 16600. The trial court granted summary judgment in favor of defendants and enjoined AMN from enforcing the non-solicitation agreement against any former AMN employee. The Court of Appeal affirmed. The Court focused on California’s broad public policy in favor of allowing individuals to seek employment. The Court noted that AMN’s non-solicitation agreement clearly prevented the nurse recruiters from practicing their chosen profession with AYA, i.e., recruiting travel nurses. The Court distinguished the nurse recruiter’s job from the facts in Loral Corp v. Moyes (1985) 174 Cal.App.3d, a case where the Court enforced a nonsolicitation agreement against a former executive who was recruiting employees from his former employer. In essence, the Court found that, unlike the AYA nurse recruiters, the executive’s profession in Loral was not the recruitment of employees. Thus, enforcing the nonsolicitation agreement did not prevent

the executive from engaging in his chosen profession. But the Court also questioned the continued viability of the Loral decision, and observed that the later-published decision in Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th, 937, rejected the “reasonableness” standard that the Loral court applied to evaluating the non-solicitation agreement. Also rejecting the misappropriation claim, the Court ruled that the nurses’ names and contact information were not AMN’s trade secrets. The nurses’ identity and contact information were known to AYA before any of the individual defendants left AMN. Several nurses that AYA recruited had applied to work for AYA before working for AMN. Moreover, the Court noted that the Gypsy Nurse Group, a public social media group, maintained the names and profiles of over 30,000 members; thus, many of the travel nurses’ contact information was public information. In light of the Court’s ruling, employers should carefully review their nonsolicitation and trade secret agreements with their employment counsel. The scope of enforceable non-solicitation agreements is now more clearly defined and the Court reminded us that not everything is a trade secret. The information provided in this article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice regarding any particular issue or problem. Tanya M. Schierling is Partner & Litigation Department Chair at Solomon Ward Seidenwurm & Smith LLP. Jing Li and Andrew Myers are Associate Attorneys at Solomon Ward Seidenwurm & Smith LLP.

January/February 2019 SAN DIEGO LAWYER 35

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NEW RULES IN 2019

NEW YEAR, NEW BEGINNING: BANKRUPTCY & FILING TAXES By Julie Houth

ankruptcy is a legal remedy for individuals that are unable to pay debts owed to creditors. The decision to file for bankruptcy can be a difficult decision for many reasons. Some debtors may not know that there are subsequent requirements that include filing for taxes after filing for bankruptcy. In Internal Revenue Service (IRS) Publication 908, Bankruptcy Tax Guide, the Bankruptcy Code requires a debtor to file an individual tax return or request an extension. If that does not occur, the bankruptcy case could be converted or dismissed. A person who files for bankruptcy is called a debtor. When a debtor files for bankruptcy, the debtor generally surrenders his or her right to manage his or her own affairs and a trustee is appointed to oversee the affairs. The debtor’s affairs become part of the bankruptcy estate and the sole responsibility of the trustee is to pay the creditors with any assets not exempt under federal or state law, if applicable. Most debtors are unaware of the requirement to file two types of tax forms — one for individual taxes and one for the bankruptcy estate. The type of bankruptcy filed will further determine this process.

Type of Bankruptcy Chapter 7 In a Chapter 7 bankruptcy, a taxpayer is required to file a form 1040 individual tax return. The trustee would also need to file a form 1041 for the bankruptcy estate. Both the individual and estate return must be filed for the current tax year. Chapter 11 In a Chapter 11 bankruptcy, the debtor usually remains in control of the assets and will act as the bankruptcy trustee. Because the debtor is also the trustee for the bankruptcy estate, the debtor is required to file both the 1040 individual return and the 1041 bankruptcy estate return. Similar to the Chapter 7 bankruptcy, both the individual and estate return need to be filed for the current tax year.

Chapter 13 In a Chapter 13 bankruptcy, there is a continuous obligation by the debtor to timely file taxes and provide the filed returns to the trustee. Similar to a Chapter 7 situation, the trustee will file the 1041 bankruptcy estate return and the debtor will file the individual 1040 tax return. The debtor further is required to provide all refunds for payments to creditors. In a Chapter 13 case, the debtor pays disposable income into a monthly plan to pay the creditors. Important Note It is important for an individual debtor to be aware of the requirement of two separate filings — individual and estate — because an outside trustee might be interested in any tax refund that the debtor receives based on the debtor’s individual 1040 filed return. The refund may need to be given to the trustee to help pay off debt depending on the state and federal laws in addition to the amount of the refund. It is also important to file both the individual and estate returns in a bankruptcy case in order to avoid separate penalties from the IRS that include failure to file and failure to pay.

Discharge of Debt Although cancellation of debts are typically considered taxable income, filing for bankruptcy should not affect a debtor’s individual tax return because debts discharged in bankruptcy are excluded from income under the Internal Revenue Code (IRC) §108. Note that not all debts are discharged in bankruptcy and those debts include student loans; most federal, state and local taxes; money borrowed on a credit card to pay those taxes; and child support and alimony. If a debtor has received an IRS Form 1099(c) on a debt discharged in a bankruptcy case, the debtor can file Form 982 to inform the IRS that the sum on the 1099(c) should be excluded from his or her income because bankruptcy is an exception to taxable income under IRC §108.

California Considerations California Revenue & Taxation Code §17131 includes IRC §108 among the federal provisions that are the same in California tax law. The tax code treats the forgiveness or cancellation of a debt obligation to be the same as if a debtor had received the amount forgiven in cash. Similar to IRS rules, cancellation of debt would be treated as taxable income unless there is an applicable exception. According to the California Franchise Tax Board, attorneys should note that if a client is currently in bankruptcy, the client may receive a tax due notice. This is not a demand for payment, but is instead for informational purposes. California law requires that the FTB must notify individuals when there is a new liability.

Final Thought It is always wise to consult a bankruptcy attorney and inquire about the tax considerations when filing for bankruptcy. Consult with a tax attorney or certified public accountant (CPA) if the bankruptcy attorney is not familiar with the tax requirements after the bankruptcy is filed. Whether the bankruptcy trustee can take a debtor’s tax return check depends on the type of bankruptcy, the timing of the filing of bankruptcy, and the precautions a debtor takes to protect the tax refund. Accordingly, a consultation with a bankruptcy attorney, tax attorney and/or a CPA could provide the debtor with strategies that include when to file for bankruptcy in a tax year and how to retain as much of his or her tax refund. There is life after bankruptcy and it can provide a refreshing start so long as debtors remember the tax requirements that come with this new beginning. Julie Houth (jhouth@gmail.com) is a staff attorney at Robbins Geller Rudman & Dowd LLP.

January/February 2019 SAN DIEGO LAWYER 37

NEW RULES IN 2019

Civil Procedure Changes By Courtney Baird and Chris Champine

n Dec. 1, 2018, substantive amendments to the Federal Rules of Civil Procedure took effect. These amendments do not fundamentally alter the litigation process, but they reflect the legal community’s growing reliance on technology and align the Federal Rules of Civil Procedure (FRCP) with modern legal practices. The most impactful changes eliminate the certificate of service requirement for e-filings, require electronic filing and service for parties represented by counsel, update the class action rule, and extend the automatic stay after entry of judgment. FRCP 5: Electronic Filing, Service and Signatures Several tech-friendly amendments were made to FRCP 5. Section (d)(1) no longer requires a certificate of service for service using a court’s e-filing system. However, for documents filed but not served using the e-file system, a certificate of service must still be provided. Amended Rule 5 also eliminates the requirement to obtain consent from an opposing party for electronic service, so long as the serving party uses the court’s e-filing system to serve registered system users. The Advisory Committee Note also provides that electronic service can be made through other means with the consent of the person served. Section (d)(1) of amended Rule 5 also mandates electronic filing of court materials by persons represented by

38 SAN DIEGO LAWYER January/February 2019

counsel. Exceptions can be made for good cause or where local rules require non-electronic filing. Amended FRCP 5(d)(1) also gives courts permission to allow pro se litigants to use electronic filing. The Committee Note, however, expresses concern that relying too heavily on electronic filing might make it difficult for pro se litigants to access the court, and that orders requiring pro se litigants to file electronically should be made carefully. Finally, amended FRCP 5(d)(3)(C) includes a national signature provision for e-filings. Using an electronic signature requires filing through a person’s e-filing account, together with that person’s name on a signature block. Amended Rule 5 does not go into detail as to what information the signature block must contain. FRCP 23: Class Actions Major changes were made to FRCP 23, which controls the procedure for litigating class actions. The new rule amends the methods of notice to (b)(3) class members to include “electronic means, or other appropriate means.” This important change allows notice to be given by sending an email or, possibly, even a text message to class members. This is especially convenient when limited contact information is available for class members. The Advisory Committee Note recognizes many practitioners are already using new technologies to give effective notice.

Amended Rule 23(c)(2)(B) continues to call for providing class members with the best notice practicable, but gives no preference for any one method. Using any means of communicating or even a combination of different means of communicating is sufficient, so long as those means ensure reliable notice. Amended rule 23(e) now requires additional information to determine whether to give notice of the proposed settlement to the class. If the court is able to both approve the proposal under rule 23(e)(2) and certify the class, the court can direct notice to all class members who would be bound by the settlement. Amendments to subsection (e) also expand the “fair, reasonable and adequate” standard applicable to class settlements by providing factors for courts to consider when evaluating proposed settlement agreements, including the type of benefits the settlement will confer, plans for unclaimed funds, the existence of other pending or anticipated litigation and anticipated attorneys’ fees. Subsection (e) now also requires specificity when objecting to a settlement agreement and court approval for payment in connection with foregoing or withdrawing a challenge to a proposed settlement. This should reduce the delays to class relief that occur when objections are made for illegitimate reasons. Lastly, amended FRCP 23(e) states that a court’s

NEW RULES IN 2019

decision to send notice of a proposed settlement to the class under FRCP 23 (e)(1) is not appealable. FRCP 62 and 65.1: Stay After Judgment Amendments were made to FRCP 62 and FRCP 65.1 that clarify and streamline timing issues. Amended rule 62 extends the automatic stay after entry of judgment from 14 to 30 days. The Advisory Committee noted the “apparent gap” between the expiration of the automatic stay after judgment and the time for filing appeals. The 30-day stay should coincide with the time to file most appeals. However, rule 62 now permits the court to dissolve the automatic stay by court order and allows a party to obtain a stay “by providing a bond or other security.” Amended rule 65.1 conforms to the changes made to rule 62. Conclusion The FRCP amendments, while far from groundbreaking, should be applauded for aligning the rules with the realities of modern legal practice. The amended FRCP reflects the vital role technology plays in most lawyers’ day-to-day lives, and will save their clients time and money by reducing delays in litigation and settlements. Courtney Baird is a Partner at Duane Morris LLP and Chris Champine is an Associate Attorney at Duane Morris LLP.

Changed Statute of Limitations — But Is It Constitutional? By Leah Strickland Section 337 of the Code of Civil Procedure establishes a four-year statute of limitations for the claims listed in the statute, including an action upon a written contract. Previously, section 337 established an affirmative defense to the claims enumerated in the statute; as with all affirmative defenses, the burden of alleging and proving the defense was on the defendant. On Jan.1, 2019, Assembly Bill No. 1526 went into effect. Among other things, it amends section 337 to add subdivision (d), which provides: When the period in which an action must be commenced under this section has run, a person shall not bring suit or initiate an arbitration or other legal proceeding to collect the debt. The period in which an action may be commenced under this section shall only be extended pursuant to section 360. While the new law does not expressly address the burden of proof, this provision arguably flips the traditional burden to make it the plaintiff’s job to negate the statute of limitations in claims

based on written agreements. There is nothing intrinsically wrong with making establishing the timeliness of a claim a part of a plaintiff’s case in chief. But the wording of the law does more than that; it purports to prohibit the bringing of an action before its timeliness has been adjudicated. The First Amendment of the United States Constitution protects the right to petition from legislative infringement, and the 14th Amendment makes that protection effective against state law. Regardless of whether section 337 is viewed as a part of the plaintiff’s case in chief or as an affirmative defense, all parties are entitled to bring a dispute about the application of section 337 to a court for resolution. The wording of section 337, as amended, seems to do away with that right, establishing a categorical prior restraint by legislative fiat. In the process, it also favors defendants over plaintiffs in what is simply a private contractual dispute. Thus, the question should be, does the law pass constitutional muster? Leah S. Strickland is a Partner at Solomon Ward Seidenwurm & Smith, LLP.

1. Fuller v. White, 33 Cal. 2d 236, 240, 201 P.2d 16, 19 (1948) (“The statute of limitations is an affirmative defense ...”). 2. Colonial Ins. Co. v. Indus. Acci. Com., 27 Cal. 2d 437, 440-41, 164 P.2d 490, 492 (1945).

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NEW RULES IN 2019

NEW CRIMINAL LAWS FOR YOU Michael Crowley and Emily Crowley Bahr

n sitting down to research and write this article on new criminal laws, it occurred to us that this has become a ritual as timehonored as a New Year's Eve celebration. Although there is sometimes legislation declared to be an emergency that takes effect immediately — and in federal criminal law we have become use to November 1 as the date new sentencing guideline amendments always go into effect — the first day of a new year often brings watershed changes in our laws. Here are the ones for 2019 in the area of criminal law. There are huge changes on both the state and federal side. The recent rare bipartisan action by the U.S. Congress in passing the First Step Act has the potential for the biggest change in federal criminal justice since the 2005 U.S. Supreme Court case of United States v. Booker which changed sentencing guidelines from being mandatory to advisory. The First Step Act has a host of prison reform measures such as banning the shackling of incarcerated women to their bed when giving birth (sad that it took federal legislation to enforce this common-sense measure). But part of it that will have the largest effect is some relaxation of minimum mandatory sentences. Now a person with a minimal, nonviolent criminal history can still qualify for relief from the often draconian sentences of 5, 10 or 20 years, in which the judge has no discretion. Prior to this legislation, two misdemeanors could trigger the mandatory sentence. On the state side, an interesting change reflects California’s new criminal justice policy falling under the all-encompassing phrase “evidence-based practices.” In other words, changes are supposed to reflect scientific studies and implicitly reject the notion that locking wrongdoers up for longer and longer sentences, e.g., the Three Strikes Law, doesn’t necessarily make us safer. One aspect of this notion getting

attention is the relationship between mental health and criminal conduct. To that end, passed and put into effect last summer is legislation known as “mental health diversion.” Under this law, a judge decides whether a defendant has a mental health issue (with certain exceptions) that is found to have contributed to the crime alleged (with several exceptions, but can be a misdemeanor or felony). The judge must also find the defendant will not endanger public safety while undergoing mental health treatment, that will help the defendant to not commit any crimes. The defendant may then be eligible for having the case diverted from the criminal justice system for up to two years for the treatment. If they make it through their treatment, the case will be dismissed (Penal Code section 1001.36). In the same vein, state law now prohibits the criminal prosecution of anyone under the age of 12, except for murder or rape. Additionally, no juvenile under the age of 16 can be tried as an adult, which could send them to state prison rather than being treated in the juvenile system (SB 1391). Another watershed change in criminal justice has been the advent of body-worn cameras. There has been a slow acceptance by law enforcement caused by working out logistics, but most now believe this device is as helpful to law enforcement as it is to illuminate how interaction between the public and the police sometimes goes wrong. The state legislature has decided this footage, in the case of excessive force or police shootings, is to be made public within 45 days after the incident (AB 748). Additionally, those litigants in both the criminal and civil arenas who have labored under the stingy Pitchess process

(Cal. Evid. Code 1043 and 1045) for the obtaining of prior complaints concerning law enforcement officers' conduct, have some relief. Senate Bill 1421 now allows the formerly confidential documents to be disclosed under the California Public Records Act. As you might expect, there are exceptions and caveats for judges to decide. A conviction for misdemeanor domestic violence will now cause a lifetime prohibition from possession of a firearm (AB 3129). Previously, there would only be a 10-year restriction. Also, gun owners with concealed weapon licenses will be required to undergo eight hours of firearm training (AB 2103). First-time driving under the influence convictions carry stiff penalties generally, but the rule that usually caused the most consternation was that if you lost at the DMV administrative procedings (separate from the criminal case), you lost your right to drive for 30 days with no exceptions. After the 30 days you could obtain a restricted license, under certain conditions, which allowed you to drive to and from work, during work, and to and from the first conviction program. Under the new law, that harsh rule is mitigated by having an ignition interlock device installed on your car, requiring you to blow into before the car will start. Of course, you have to pay for the device, but at least you can drive. Finally, for you daredevils on scooters, if you are an adult you are now not required to wear a helmet. (AB 2989). Michael Crowley (mlcrowley@crowleylawgroup.com) and Emily Crowley Bahr (emilycrowley@crowleylawgroup.com) practice criminal defense at the Crowley Law Group. They are father and daughter. January/February 2019 SAN DIEGO LAWYER 41

SAVE THE DATE

2019 SIGNATURE EVENTS

DIALOGUE ON DIVERSITY - FEBRUARY 28 This annual SDCBA signature event highlights our commitment to diversity and fosters a dialogue about a variety of diversity and inclusion issues in our community.

ANNUAL BENCH-BAR RECEPTION - MARCH 26 Join us in welcoming San Diego’s newest judicial officers and honoring our Bench at our annual Judicial Reception. This event is exclusively for SDCBA members and the judiciary.

ANNUAL AWARDS LUNCHEON & CELEBRATION OF COMMUNITY SERVICE - MAY 1 This annual event celebrates community service and recognizes SDCBA Service Award Winners and student winners of our Law Week Poster and Video Contest.

ANNUAL SUMMER SOCIALS - JUNE 26 & JULY 10 The Downtown event features live music, a casual vibe and is held on the terraces at 401 W A Street. The North County event takes place at a restaurant/bar venue convenient for those that practice north of Carmel Valley.

ANNUAL BENCH-BAR LUNCHEON SERIES SEPTEMBER/OCTOBER This events brings together attorneys and judicial officers to discuss issues of mutual interest. The 5 luncheons span multiple regions and specialties.

ANNUAL HOLIDAY PARTY STEPPING UP TO THE BAR – DECEMBER 6 Our annual holiday reception. Always held the first week in December, we come together to celebrate the season and install the incoming SDCBA President and Board of Directors.

For more information visit: www.sdcba.org/calendar

San Diego County Bar Foundation Awards $521,000 in Grants to 24 Local Nonprofits

he San Diego County Bar Foundation announced that it is awarding 24 grants totaling $521,000 to local nonprofit organizations providing legal services, public awareness education and improvements to the region’s justice and court system.

bonding clients out of federal criminal custody; • Elder Law & Advocacy – $10,000 to provide legal and advice and advocacy for low-income seniors;

• Think Dignity – $50,000 to support the Homeless • Interfaith Community Services, Inc. – $5,000 for Youth Legal Advocacy Project that helps young the Immigration Legal Services Program; people with a variety of criminal legal issues. • Jewish Family Service – $5,000 to assist refugees and asylum seekers with legal support; The San Diego County Bar Foundation also The awards, from both general and indigent criminal awarded $141,100 in general grants to 18 nonprofit defense fund grant programs, focus on people and organizations. These include: communities that are most impacted by poverty, • American Bar Association – $10,000 for the Pro abuse and discrimination. Funds assist organizations Bono Program to meet the need for attorneys in that serve refugees, asylum seekers, immigrants, the immigration court system; working poor, domestic violence victims, the • Access, Inc. – $10,000 for the WAVE project disabled, veterans, the homeless, low income that provides advocacy and representation for seniors and at-risk youth. undocumented immigrants and refugee victims of workplace sexual harassment, assault and sex “The San Diego County Bar Foundation trafficking;

has once again demonstrated its leadership in championing full and equal • California Rural Legal Assistance – $15,000 to provide labor law and employee rights legal access to justice for all residents,” services for migrant farmworkers; said San Diego County Bar Association President Lilys D. McCoy. “We are grateful that the Foundation is able to thoroughly vet these nonprofit organizations to ensure the donations from our legal community are well spent.”

• Karen Organization of San Diego – $8,600 to expand legal services and promote public understanding of the law among Burmese refugees; • La Maestra Family Clinic – $5,000 to expand legal services for low-income immigrants; • Legal Aid Society of San Diego – $5,000 to support the San Diego County Conservatorship Assistance Program; • People’s Legal Services, Inc. – $10,000 to support the Family Law Program’s immigration services;

• San Diego Volunteer Lawyer Program – $5,000 to The largest award from the 2018 Indigent Criminal provide representation to low-income individuals, Defense Fund of $100,000 was awarded to California prioritizing survivors of domestic violence and Western School of Law’s California Innocence their children; Project to assist in overturning wrongful conviction cases. The additional seven recipients are: • Think Dignity – $7,500 to coordinate homeless • Appellate Defenders – $20,000 to provide • Cal-Western Community Law Project – $7,500 legal services and provide “Know Your Rights” for legal consultations and community legal professional development lectures and workshops materials to the indigent; and education to low-income individuals; to AD staff and attendance at national summit in • Voices for Children – $7,500 to provide court Washington D.C.; • Casa Cornelia Law Center – $10,000 for services to appointed special advocates young children in immigrant victims of domestic violence, human • Californian Veterans Legal Task Force – $45,000 foster care and fund assessment and triage for trafficking and other serious crimes that affect additional children’s cases. to provide criminal defense attorneys for immigration status; veterans; • Center for Employment Homeless Court –$10,000 • Center for Community Solutions – $5,000 for Since the Foundation began its grants program in legal assistance regarding restraining orders and 1979, it has distributed more than $4 million to over to support legal services for indigent participants; 50 legal aid and public interest organizations. other family law matters; • National Conflict Resolution Center – $50,000 • Children’s Legal Services of San Diego, Inc. – to support and expand the restorative justice $10,000 to provide assistance to non-minor For more information about the San Diego County project for juveniles; or to make a donation, visit www. dependents on civil legal issues such as housing, Bar Foundation, Pantone Colors • St. Vincent de Paul Village – $30,000 to support sdcf.org. family law, employment law and personal injury; homeless court representatives who prepare • Community Resource Center – $5,000 for legal clients for court sessions; assistance to domestic violence survivors; • The Bail Project, Inc. – $75,000 to continue Red - Pantone 7628 CP Blue - Pantone 2955 CP White

January/February 2019 SAN DIEGO LAWYER 43

Legal Aid Society of San Diego

THE JOURNEY TOWARD JUSTICE BEGINS HERE: Stories About the Work of the Legal Aid Society of San Diego By Gregory Knoll, CEO, and the LASSD Fair Housing Team

The Legal Aid Society of San Diego (LASSD) is funded by the Department of Housing and Urban Development (HUD), the City and County of San Diego, and numerous other municipal jurisdictions throughout San Diego County to promote equal housing opportunities through education, counseling, testing and investigation, as well as enforcement efforts. These enforcement efforts include filing administrative complaints, filing affirmative lawsuits, and providing fair housing training for housing providers and community members. Recently, a client who was the victim of domestic violence committed by a coworker, developed PTSD because of the incident. The client’s PTSD would not allow her to go back to work, because her abuser was still working at the client’s place of employment. Consequently, she was unable to pay her rent and was evicted. Our client had been in the unit for 14 years. She now has a treatment plan and is on a rent subsidy program, which pays the majority of her rent.

Last year, our client was looking for a new residence and applied for several units. At one particular unit, the leasing agent refused to take her paper application because she noted she had a previous eviction. Our client had applied in person with her social worker who asked the leasing agent for a reasonable accommodation, and tried to explain to the leasing agent the circumstances of the prior eviction. The leasing agent stated that the owner did not make exceptions and refused to process her application. The client came to LASSD and we attempted to conciliate with the owner, but the owner ignored our letters and phone calls. The LASSD Fair Housing team then filed an administrative complaint on behalf of our client with the Department of Fair Employment and Housing. The complaint was found to be meritorious and was sent to mandatory mediation. The complaint was settled during mandatory mediation for $10,000 and extensive affirmative relief, including the changing of policies to allow

persons with mental health disabilities to request exceptions from rental policies that exclude prospective tenants with an eviction, when the eviction was a result of a mental health disability. Because of the extraordinary efforts of our Fair Housing team, along with the commitment and dedication of our courageous client, over 1,000 housing units have been made available to persons with mental health disabilities, helping to reduce homelessness. Our Fair Housing team is led by senior attorney Branden Butler. Other attorneys on the team are Rosalina Spencer, Danielle Tailleart and Patricia Ziegler-Lopez. Team advocates are Jessica Villaescusa, Alina Nuñez, Adalberto Murillo, Donald Estrada and Etcell Vargas. Iva Lunsford is the team’s legal secretary. The LASSD Fair Housing Complaint Line is (844) 449-3500.

2019

SAN DIEGO COUNTY BAR ASSOCIATION

RENEW YOUR MEMBERSHIP As an SDCBA member you will continue to enjoy: Exclusive access to the Bar Center at 401 Member-only social, educational and cause-specific events Opportunities to network with 10,000+ members Lawyer Referral and Information Service (LRIS) Law Practice Management, Marketing and Technology Live, virtual, on demand and specialist credit CLE

www.sdcba.org/renew

EN PERC T C 2019

LUB

100

THANK YOU 100 PERCENT CLUB 2019 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 2019. Your leadership and dedication to our profession is truly appreciated.

Allen, Semelsberger & Kaelin, LLP Antonyan Miranda, LLP Atkinson, Andelson, Loya, Ruud & Romo Balestreri Potocki & Holmes Beamer, Lauth, Steinley & Bond, LLP Bender & Gritz, APLC Bernstein Litowitz Berger & Grossmann LLP Best Best & Krieger LLP Blackmar, Principe & Schmelter APC Blanchard, Krasner & French APC Bobbitt, Pinckard & Fields, APC Brierton Jones & Jones, LLP Brown Law Group Carothers DiSante & Freudenberger LLP Casey Gerry Schenk Francavilla Blatt & Penfield, LLP Christensen & Spath LLP Cohelan Khoury & Singer Collinsworth, Specht, Calkins & Giampaoli, LLP Dentons US LLP Devaney Pate Morris & Cameron, LLP Dietz, Gilmor & Chazen, APC District Attorney’s Office Duckor Spradling Metzger & Wynne, ALC Dunn DeSantis Walt & Kendrick, LLP Epsten Grinnell & Howell, APC Erickson Law Firm APC Farmer Case & Fedor Ferris & Britton, APC Finch, Thornton & Baird, LLP Fisher Phillips LLP Fleischer & Ravreby Fleming PC Fragomen, Del Rey, Bernsen & Loewy, LLP Frantz law Group, APLC 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 LLP Hiden, Rott & Oertle, LLP Higgs Fletcher & Mack LLP Hoffman & Forde Hooper, Lundy & Bookman, PC Horton, Oberrecht, Kirkpatrick & Martha, APC Hughes & Pizzuto, APC Jackson Lewis PC Judkins Glatt & Rich 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 & Drury LLP Men’s Legal Center Miller, Monson, Peshel, Polacek & Hoshaw MoginRubin LLP Moore, Schulman & Moore, APC Musick, Peeler & Garrett LLP Naimish & Lewis, APC Neil,Dymott,Frank,McFall,Trexler,McCabe & Hudson APLC Noonan Lance Boyer & Banach LLP Niddrie|Addams|Fuller|Singh LLP

Office of the Public Defender Office of the San Diego City Attorney Paul, Plevin, Sullivan & Connaughton LLP Pettit Kohn Ingrassia Lutz & Dolin Pillsbury Winthrop Shaw Pittman LLP Preovolos Lewin & Hezlep, ALC Procopio, Cory, Hargreaves & Savitch LLP 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 Smith Steiner Vanderpool, 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 Wilson Elser Moskowitz Edelman & Dicker LLP Wilson Turner Kosmo LLP Winet Patrick Gayer Creighton & Hanes Wingert Grebing Brubaker & Juskie LLP Witham Mahoney & Abbott, LLP Withers Bergman LLP Wright, L’Estrange & Ergastolo

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Distinctions The following individuals in our community were recently honored for a variety of achievements:

Fish & Richardson's Principal Jonathan Singer was named 2018 Life Sciences MVP of the Year by Law360.

Feuerstein, Murphy, and Beals, LLP partner Richard P. Feuerstein received the 2018 Norby award from the Family Law Judiciary.

Peter S. Doody, a Partner with Higgs, Fletcher & Mack, has been installed as the 2019 President of the Association of Southern California Defense Counsel. Doody was also honored as “Attorney of the Year” by San Diego Defense Lawyers in January. Hon. Joan M. Lewis was the organization’s Bench and Bar honoree.

Passings

Attorney Gerald McMahon of Seltzer Caplan McMahon Vitek passed away on Dec 24, 2018. McMahon practiced for 54 years. Visit www.sdcba.org/mcmahon to see his Legends of the Bar video.

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PHOTO GALLERY STEPPING UP TO THE BAR Photos by Douglas Gates Photography

SDCBA members gathered for the Association's annual holiday celebration on Dec. 6. The installation ceremony for the SDCBA's 2019 Board of Directors took place at the event, where Lilys McCoy was also introduced as 2019 Bar President. Thank you to event sponsors Antonyan Miranda, AHERN Insurance Brokerage, AbacusNext, Thomson Reuters, Geico, LawPay, Torrey Pines Bank, Judicate West, and NAI San Diego.

Hon. Judith McConnell, Kristin Rizzo, Lilys McCoy, Hon. Peter Deddeh

Lilys McCoy, Hon. Judith McConnell

L-R: Udoka Nwanna, Kevin Greene, Tamra Lett

Trent Rawlins, Ashley Rawlins

Hon. Peter Deddeh and the 2019 Board of Directors

Hon. Marcella McLaughlin, Hon. Saba Sheibani

L-R: Patricia Hollenbeck, Judy Bae, Teodora Purcell

L-R: Rayna Stephan, Danna Nicholas, Greg Turner

48 SAN DIEGO LAWYER January/February 2019

PHOTO GALLERY LEGAL COMMUNITY OPEN HOUSE & LAW STUDENT WELCOME RECEPTION Law students and other legal professionals attended the SDCBA's Legal Community Open House & Law Student Welcome Reception on Jan. 23 to learn about local law-related organizations and welcome law students to our legal community.

Marissa Bejarano, Melissa Johnson

Bhashini Weerasinghe, Michael MacKinnon

Michael Allen, Chris Stearns

SDCBA President Lilys McCoy speaking with Board Members & guests.

LAW + TECHNOLOGY SUMMIT On Jan. 25-26, the SDCBA, along with the Law Practice Management and Technology Section of the California Lawyers Association, held its second annual Law + Technology Summit. National and local tech experts shared wisdom on e-discovery, cybersecurity, practice management and trial technology and technology's impact on the practice of law.

Irean Zhang, Wendy Patrick, Valerie Garcia Hong

January/February 2019 SAN DIEGO LAWYER 49

BAR LEGENDS VIDEO RELEASE MIXER The SDCBA Bar History Committe held their annual mixer where they released the next set of Bar Legends Videos. More Legends of the Bar Videos: www.sdcba.org/legendsofthebar.

L-R: Gorge Brewster, Bob Gaglione, Hon. Vic tor Bianchini, Daniel Guevara, James Marinos, Anne Dynes, Hon. James McIntyre, Charles Rees, Spencer Scott, Sean Jones

Top L-R: Bill Phippard, Daniel Guevara, Fred James Bottom L-R: Vicky Phippard, Karen Guevara, Margarita Solis

Lilys McCoy, Anne Dynes

L-R: Spencer Scott, Sean Jones, Andy Cook

L-R: Bob Gaglione, George Brewster, Garrison "Bud" Klueck

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50 SAN DIEGO LAWYER January/February 2019

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