San Diego Lawyer May//June 2019 by San Diego County Bar Association

®® ® MAY/JUN 2019

ANNUAL OUTSTANDING JURIST

Hon. Dana Sabraw

OUTSTANDING ATTORNEY

Peter Quon Jr.

2019 SERVICE AWARD

WINNERS SERVICE TO THE LEGAL COMMUNITY

SERVICE TO DIVERSITY

Alara Chilton

Mark Cumba

DISTINGUISHED ORGANIZATION

COMMUNITY SERVICE

Kimberly Swierenga

Consumer Attorneys for RCFE Reform

SERVICE BY A PUBLIC ATTORNEY

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CONTENTS

COLUMNS

2019

SERVICE AWARD

WHY I BELONG Get to know SDCBA member Taryn Perez.

PRESIDENT'S COLUMN Why Being a Lawyer is No Lauging Matter. by Lilys McCoy

WINNERS

DEANS USD’s Experiential Advocacy Practicum: Three Years Later. by Stephen Ferruolo

ETHICS Parting Is Such Sweet Sorrow — But Need Not Be. by Edward McIntyre

Page

SOCIAL MEDIA Transforming Your Instagram Newsfeed into a Medium for Doing Social Good. by Anne Kammer

TECHNOLOGY Internet Miscreants Are Rapidly Evolving by Bill Kammer

MEET YOUR BAR-ISTA Cynthia C. Davis Accounting Coordinator

DISTINCTIONS AND PASSINGS

PHOTO GALLERY

CRIMINAL DEFENSE: THE PRIVATE PRACTICE VIEW by Stefano L. Molea

CRIMINAL DEFENSE: THE PUBLIC ATTORNEY VIEW by Michael L.S. Hawkins

CLIPPED WINGS Thinking of traveling abroad while you owe Uncle Sam? Think again! by Mitchell B. Dubick & Joshua P. Katz

WHAT TO DO WHEN? What to do when your client disappears — actually or in effect. by Edward McIntyre

HOW TO BE UNDERSTOOD WITH GREAT CLARITY: BE BLUNT Legal writing tips on how to be more clear and concise for the reader. by Jane Wesley Brooks

LOOKING BACK Judge E. Swift Torrance Sr. by George W. Brewster Jr.

FEATURES

Page

YOUNG LAWYERS GIVING BACK How three young attorneys find the time to give to others in need. by James D. Crosby

COMMUNITY SERVICE ALL-STARS Inspiration and advice from this year's Service Award Winners.

PROTECTING PRIVILEGE IN A CYBER BREACH INCIDENT RESPONSE How to best handle communication during a data breach. by Carole J. Buckner

Page

ROUNDTABLE: PRACTICING LAW IN CHANGING TIMES by James D. Crosby

THE SAN DIEGO CITY ATTORNEY’S OFFICE TAKES A FRESH APPROACH TO INTERNSHIPS by Kenneth So

CRIMINAL TRIALS Two veteran attorneys reveal the biggest trials and tribulations of working in criminal law. by Aleida K. Wahn

FOR RICHER OR POORER, IN SICKNESS AND IN HEALTH: FOR THE LOVE OF PETS by Julie O. Wolff

Issue no. 3. San Diego Lawyer™ (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is 619-231-0781. The price of an annual subscription to members of the San Diego County Bar Association ($10) is included in their dues. Annual subscriptions to all others, $50. Single-copy price, $10. Periodicals postage paid at San Diego, CA and additional mailing offices. POSTMASTER: Send address changes to San Diego Lawyer, 401 West A Street, Suite 1100, San Diego, CA 92101. Copyright © 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.

May/June 2019 SAN DIEGO LAWYER 5

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

TARYN PEREZ

Dummit, Buchholz & Trapp Education: Undergrad: Mount St. Mary’s University, Los Angeles Law School: California Western School of Law

Co-Editors Edward McIntyre Christine Pangan

Areas of practice: Medical Practice, Professional Liability, Health Law, Professional Licensure, Administrative Law, General Liability

Editorial Board Hali Anderson Elizabeth Blust Jim Crosby Jeremy Evans Seth Garrett Devinder Hans Whitney Hodges

Julie Houth Anne Kammer Hon. Duane Moring Michael Olinik Renée Stackhouse Tandis Taghavi Julie Wolff

SAN DIEGO COUNTY BAR ASSOCIATION Director of Marketing & Outreach Ron Marcus

Graphic Designer Attiba Royster

Publications and Content Coordinator Sasha Feredoni

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

401 West A Street, Suite 1100, San Diego, CA 92101 Phone (619) 231-0781 bar@sdcba.org Fax (619) 338-0042 www.sdcba.org Interested contributors may submit article ideas to the editors at www.sdcba.org/SDLidea. Unsolicited articles will not be printed in San Diego Lawyer™. San Diego Lawyer™ reserves the right to edit all submissions, contributed articles and photographs at its sole discretion. The opinions expressed by the authors and editors in San Diego Lawyer ™ magazine do not necessarily reflect an official position of the San Diego County Bar Association.

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

Proudest career moment: My first jury trial resulting in the court granting my motion for non-suit. Family: Mom and Dad residing in Valencia, California; brother, sister-in-law and nephew residing in Costa Mesa, California. Birthplace: Burbank, California. Current area of residence: University Heights. If I weren’t an attorney, I’d be ... A fashion consultant. The best thing about being an attorney is ... Having the ability to advance justice and stop frivolous lawsuits. Last vacation: Puerto Nuevo, Mexico. Favorite website: Nordstrom.com. Hobbies: Taking my dog Nala to the park, crafting and jigsaw puzzles. Favorite book: Pride and Prejudice. Best concert you’ve ever been to: Justin Timberlake. Favorite food: Macaroni and cheese. Most fun/memorable SDCBA moment or meeting: Tie between Holidays Around the World and Dialogue on Diversity. Do you have a unique skill or special talent nobody knows about: I like to think I have a good eye for fashion and am able to maintain a chic, but professional style. What one skill has helped you to be successful as an attorney, and how could others develop that skill to better their practices? Networking is a skill that has tremendously helped me in my practice so far. Not only does it help to create a book of business, but it also helps foster relationships with other legal professionals. If you aren’t sure where to start, my advice would be to join a Bar organization that promotes something you are interested in. Do you have a mentor? All of the senior attorneys at my firm have been amazing mentors, as well as my managing partner, Scott Buchholz. Also, individuals from various diversity bar organizations have mentored me since I was a law student, including but not limited to: Judy Bae, Jonah Toleno, Lynn Whitcher, Chiharu Sekino and Judge Holly Fujie. What would you most like to be known for? I would like to be known for my zealous but reasonable advocacy on behalf of my clients as well as my service to the Bar. What makes San Diego’s Bar so special/unique? The San Diego Bar is special because it is a tight-knit group and we are very supportive of one another.

May/June 2019 SAN DIEGO LAWYER 7

P PRESIDENT'S COLUMN

BY LILYS M C COY

WHY BEING A LAWYER IS NO LAUGHING MATTER stopped telling lawyer jokes years ago. When I was first licensed, I thought it was funny: playing the glib, young lawyer who had a good sense of humor about her profession. And it was well-received, too; people like it when others can laugh at themselves. But over the years I realized that I was not laughing at myself; I was laughing at a profession that does deadly serious work. We hold the lives and the fortunes of our clients in our hands. And while almost any subject has its humorous side, I was done laughing at the law and lawyers.

that code, we can expect to be publicly admonished or sued. The admonishment can result in the loss of something that took years of effort and tens of thousands of dollars to obtain: the very license about which we make those silly and careless jokes. In addition, entire segments of our profession are dedicated standard bearers and bulwarks of our reputation: ethics lawyers, ethics judges, and ethics committees, such as the marvelous Legal Ethics Committee at the SDCBA, that regularly remind us about the importance of maintaining integrity and civility.

It was probably the ethics jokes (e.g., how do you know when a lawyer is lying? . . . you know the rest of that one, I presume) that first caused me to pause. As I matured in my profession, I realized that the lawyersare-unethical canard was profoundly misleading. In fact, I don’t know many professions that have as deep a focus on ethics as ours. Of course, you could say that is because we need to be watched, but I do not believe that is true. If the life of the law is experience, the soul of the law is our commitment, as a profession, to see truth prevail and justice triumph.

Yes, there are bad apples. There are bad apples in every profession, but that does not justify painting all lawyers with one brush. In fact, there is a fallacy for that: hasty generalization, developing a conclusion from insufficient evidence. The overwhelming evidence is that there are far more Atticus Finches than Billy Flynns.

The legal profession has multiple layers of ethical requirements. Professional Responsibility is a required class in law school. At Thomas Jefferson School of Law, where I teach, each entering class repeats the lawyer’s oath, which includes the following line: “As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.” But not only do we have a class and an oath, we have a challenging ethics test, which, until passed, will bar us from our chosen vocation. Once we are licensed, we must continue to study our ethical code. If we breach

Think of it from a historical perspective: the American lawyer changed global politics; and did so as the world was emerging from ignorance and superstition. I was reminded of this fact when watching the wonderful HBO series John Adams. In a scene at a tavern, Benjamin Franklin (mesmerizingly captured by actor Tom Wilkinson) introduces his doctor to John Adams by saying, “He’s bled most of Philadelphia [and] quite swears by the regenerative powers of desanguination.” As I watched that scene I thought, “How interesting. While the medical profession was treating its patients with leaches, the legal profession was crafting the Constitution, the Declaration of Independence and the Bill of Rights.” And, sure, this is an exaggerated point; and, of course, both professions have histories with moments both noble and ignoble. But, through that 10-second tableau, it was good to be reminded of how lawyers

are integral to the hope and promise and realization of individual liberty and a better society, and not a punchline. As the viral Mr. Rogers’ quote reminds us, in times of trouble look for the helpers. I am proud to belong to a profession filled with helpers. Given the demands of our profession — both from within and from without — it’s almost baffling how we are able to give as much time and energy as we do. How and why, after the long hours at work, the tedium, the challenging clients, the difficult opposing counsel, do we spend our precious “free time” giving even more? It is truly humbling to see how generous our profession is. During intense SDCBA Strategic Framework meetings last year, ably led by 2018 Board secretary Frank Barone, one theme predominated: lawyers do good. Not well, which some of us undoubtedly do, but good. A lot of good. Yes, we do good in our work — standing up for victims, for the accused, for small businesses and for major corporations that employ millions. But it is precisely because of that hard work that I am constantly amazed by how many hours of volunteer time we give to create a better world for people we don’t even know and will never meet. This issue of San Diego Lawyer honors our 2019 Service Award Winners, and I confess that I almost took it for granted that we again recognized a group San Diego lawyers whose commitment to excellence in the law, as well as volunteer service, is truly inspiring. And this desire to change society, to make it more fair, to bend it toward righteousness is, I think, why I don’t tell lawyer jokes any more. It’s because lawyers are not just workers in the law; they are leaders in society. We care about others and we want to do good; we want to make the world a better place. And so we do.

May/June 2019 SAN DIEGO LAWYER 9

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USD’s Experiential Advocacy Practicum: Three Years Later Stephen Ferruolo

n a previous column (December 2016), I wrote about the Experiential Advocacy Practicum (EAP) which we had just introduced into the first-year curriculum. We have now completed the third-year of the EAP, which means that nearly all of our current students have completed the program.1 It is thus a good time to assess whether the EAP has met our expectations and served our students.

When our faculty established the EAP, our objectives were twofold. First, while recognizing that clinics, externships and similar programs had expanded the opportunities for 2L and 3L law students to get experiential training, we thought that, given hiring trends, students would benefit if practical skills training began earlier and was integrated into the 1L curriculum. Second, we thought it would be valuable for students, in planning for their legal careers, to be familiar with the difference between the two major areas of legal practice, litigation and transactional law, in their 1L year. The success of the EAP has exceeded our expectations and has impacted our students, as well as our law school, in ways we did not anticipate. The key to the EAP’s success is the faculty, which consists entirely of practicing lawyers. This year, we had more than 50 experienced San Diego lawyers teaching in the EAP as adjunct professors. They included attorneys from large international firms like Cooley, DLA Piper, Latham & Watkins, Mintz, Pillsbury, and Morrison & Foerster, to leading local or regional firms, like CaseyGerry, Blanchard, Krasner & French, and Procopio; from corporate legal departments, such as Qualcomm, Illumina, Realty Income, BofI Federal Bank and Solar Turbines; and from the offices of public agencies and entities, including the U.S. Attorney, District Attorney,

City Attorney, Public Defender, California DOJ and the Airport Authority. Not only do these attorneys work with students in small sections, teaching them hands-on practical legal skills, assessing their performance, and giving them valuable feedback, they also mentor and advise students about job opportunities. Remarkably, most have come back to teach in the EAP year after year and have also encouraged their colleagues to teach. We now have a waiting list of prominent San Diego attorneys who want to be EAP adjunct professors. In the EAP, students work on a fictional negligence case in the fall and a buy-sell transaction in the spring, simulating the practical tasks that junior attorneys are expected to perform, including client interviews, taking depositions, negotiations, oral advocacy (every student gives a closing argument in the fall) and the drafting of legal documents, such as a letter of intent/ term sheet, as well as emails to their supervising partners summarizing client interviews, depositions and negotiations. Here are some examples of the feedback we have received from students about the EAP: • “[EAP] helped me remember why I am in law school and makes it easier to see how what I'm learning in all of my doctrinal courses will apply to my practice after I graduate.” • “The best features of the class were forcing the students to participate handson in conducting an interview, deposition and closing argument. Reading about how to perform these skills and then actually doing them are two completely different things and it was eye-opening how much harder it is to actually perform these tasks.” • “This class gave me a lot of confidence in my ability to handle the practical skills that will be required of me in the future. I

also really liked having adjunct professors who are also currently practicing lawyers give me feedback on my presentations, so that I get an accurate idea of what my strengths and weaknesses are.” The adjunct professors are uniformly impressed by the students’ efforts and complimentary about their performance. We have received numerous reports of students building upon their classroom interactions with these practitioners to establish mentoring relationships, arrange informational interviews about their practice areas and leverage these contacts into their first internships or jobs. Students are effectively using the skills learned in the EAP to market themselves and to perform at a high level. As one of our students wrote about the value of the EAP to his experience as a summer intern: "I am interning at a small civil litigation firm ... and have put many of the skills learned during the first semester of EAP to good use. I have been conducting client interviews by myself and writings complaints based on those interviews … The background EAP provided made an enormous difference in the quality of my work and made what would have been a steep learning curve a smooth plateau." The EAP has helped make our students better prepared, more confident, more competitive and practice ready. Thanks to all of the San Diego lawyers who have made this possible. The exceptions are our first-year part-time students, who will take the EAP in their second year. i

Stephen Ferruolo (sferruolo@sandiego.edu) is Dean of the University of San Diego School of Law.

May/June 2019 SAN DIEGO LAWYER 11

E ETHICS

BY EDWARD McINTYRE

PARTING IS SUCH SWEET SORROW — BUT NEED NOT BE S

ara knocked gingerly on Macbeth’s open door.

“Macbeth, do you have a few minutes to talk about ethics issues when a lawyer leaves a firm?” “Good grief, Sara — ” “Oh, no! Not me! I love it here. My friend, Kelly, has some questions.” Another young woman appeared in the doorway. “You gave me quite a start. By all means, please come in. Make yourselves comfortable. I assume you did a conflict check, Sara?" “I did. Both firms. Where Kelly is now. And the one where she’s going. No conflicts. Not with the firms. Nor any of their lawyers.” “Fine. Well, Kelly, you have our full attention.” “I’m an associate at a smallish firm. I have the opportunity to move to a larger firm. More chance for growth. Broader practice. Diverse client base. Better mentoring. Also, I like the atmosphere.” “Good for you. Fine, professional reasons to make a career change. Have you told your current firm yet about your intentions?”

“As a corollary, we have to do everything necessary to facilitate a client’s choice, once made.” “Makes sense.” “But, first, comes communication. Rule 1.4 requires a lawyer to communicate significant developments relating to the representation to clients. Certainly, a lawyer leaving a firm is a significant development to the lawyer’s client. That’s an obligation the individual lawyer has. As does the law firm.” “Both? OK.” “Ideally, you and the firm will agree on a joint statement to each affected client. Give each all the necessary information. Also, you’ll agree who the affected clients are. I say ideally. Sadly, that doesn’t happen very often. If it doesn’t, you must still inform your clients.” “But whom do I inform?” “Excellent question. Certainly, any client whose matter you’re responsible for. Also, any client where you play a principal role in the firm’s providing legal services. And any client you reasonably believe may wish to transfer with you to your new firm.”

“Even if I am not the ‘originator’ — Kelly’s turn to use air quotes — of the client?” “‘Origination,’ as the term’s typically used, has nothing to do with informing clients about a lawyer’s leaving. Because the ‘originator’ remains, or the departing lawyer didn’t ‘originate’ the client, is no reason for the firm to try to prohibit the departing lawyer from giving either required or permitted information about leaving to a client.” “One partner won’t like that.” “Too bad. The test is client-centric. If the client were asked, Who is your lawyer? And identifies you — even if not exclusively — then you have the right and duty to tell the client your leaving and where you’re going. “What else do I tell clients?” “Where you’re going and when, of course. That you would like to continue to represent them at your new firm — if you would. Also, the client is free to remain at the firm and it will continue to serve the client’s needs — if that’s the case. The client is also free to choose another firm to represent it. You will cooperate, whatever the client chooses.”

“Not yet. I just accepted the new position last night. Then, I talked to Sara about doing it right. She said to talk to you.” “Let’s talk about some key ethics principles for lawyers moving firms. Also some practical suggestions.” Kelly sat ready to take notes. “First and foremost, the interests of the client are paramount. None of us ‘owns’— Macbeth used air quotes — a client." Each client has freedom to choose whichever lawyer the client wants. A longstanding principle. We have to honor that choice above all. Including, obviously, above our own interests.” “I can see that.”

CARTOON BY GEORGE W. BREWSTER JR. 12 SAN DIEGO LAWYER May/June 2019

“Anything else?” “Because choice of a lawyer is so important for many people, the client is entitled to as much information as it needs to make an informed decision. Information, for example, about your new firm. I presume the client already knows about your current firm. Frankly, if your leaving means your current firm cannot well serve some clients, it has the obligation to tell them. Similarly, if your new firm cannot serve some clients in the same manner as your current firm, you have to tell it that.”

otherwise, be sure clients give you their informed consent to reveal to your new firm that you represent them, even for a conflict check.” “Thank you. Had not thought about that. Most of my matters are active litigation. But I do counsel a few clients at the prelitigation or investigation stage. What about prohibited solicitation?”

“Fine. If billing rates will be a significant factor for a client, that’s information a client may need to make an informed choice.”

“Another fine question. The obligation to communicate with client — rule 1.4 — trumps the solicitation rule — 7.3 — in this instance. At least for clients you are responsible for serving or whom you reasonably believe may come with you. You still can’t take the firm’s whole client list and solicit business.”

Kelly flipped to a new page.

“I’d never — ”

“I’m afraid we’ve just scratched the surface. We have to talk about conflicts of interest at your new firm for clients that may wish to go with you.”

“I know. But some have. Now let’s at least mention the transition. Once a client has chosen to stay or go with you, rule 1.16 requires you or your firm, as the case may be, to take reasonable steps to avoid reasonably foreseeable prejudice to the client. And, as necessary, promptly to release all client materials and property and return any unearned fees. We may be a bit ahead of ourselves here, but file transfers will come up before you know it.”

“Just the opposite.”

“Yes, the firm asked me for a list of clients I think may transfer.” “Be careful of your confidentiality obligations. Section 6068 (e)(1) and rule 1.6. If you are counsel of record in ongoing litigation, you can likely provide that information without breaching your duty of confidentiality. But

“Should I start gathering? — ” “No. Sorry to be so abrupt. The files are the clients’. They belong with the firm until the clients request that they be delivered to your new firm. Or stay where they are. I always counsel lawyers and firms to get the request in writing and make an inventory. But that’s not an ethics requirement. Just good practice management.” Kelly stared at her notes. “Kelly, we’ve covered a lot. I sincerely hope you and your firm can agree on a joint departure protocol. It makes life so much easier. For clients. For the firm. For the lawyer. But if not, we’re here.” “Thanks, Macbeth. Sara was right. I’m glad I talked to you.”

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.

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S SOCIAL MEDIA

BY ANNE KAMMER

#VOLUNTEER

Transforming Your Instagram Newsfeed into a Medium for Doing Social Good

he statistics don’t lie. According to the Pew Research Center, more than two-thirds of adults in the United States are daily social media users. Therefore, chances are better than fifty-fifty that you are a daily user of social media in some form. Let’s set aside the negative connotations this statistic potentially may evoke — privacy concerns, professionalism issues, the mind-numbing effect of reading one too many ranting Tweet threads — and focus on the positive aspects of our daily social media use. Facebook ensures we stay in touch with family members who live thousands of miles away and high school friends; Instagram keeps us up to date on social news and our niche interests; Twitter helps us stay on top of the rapidly changing news cycle, politics and sporting events; and LinkedIn assists us with professional development and keeping track of people’s career moves. Simply put, social media provides an endless stream of information, opinions and recommendations — and generally, this is a good thing. It is also a great repository for things to do, places to go and people to see. This is where Instagram shines and nonprofit organizations have gotten the memo. According to NP Source, 30% of nonprofits use Instagram to raise money and awareness. Nonprofits rely on Instagram to highlight the work of their volunteers, advertise volunteering opportunities and recruit new volunteers. If you want to stay engaged with the San Diego community and be inspired to serve, Instagram is the feel-good social media platform brimming with ideas and opportunities to get involved. All you have to do is take a few minutes to fine-tune your Instagram newsfeed, i.e., the series of posts by accounts and users you currently follow, and you will be much less likely to miss out on the next opportunity to donate, volunteer or otherwise give back. You can transform your feed by following

social good hashtags, paying closer attention to posts that generally capture your interest and adding the accounts of Instagram-savvy local nonprofits. Start by following a few popular Instagram hashtags related to community betterment and the San Diego area. Hashtags categorize content and make it discoverable regardless of whether you follow a specific Instagram user. Following hashtags is easy to do: simply open the app on your phone, tap the magnifying glass icon at the bottom of the screen, select “tags” from the dropdown menu and enter some of these hashtags into Instagram’s search bar one at a time — #volunteer, #donate, #communityservice, #socialgood, #nonprofit, #philanthropy, #sandiego, #sandiego_ca, #sandiegolife and #sandiegoevents. Don’t worry about being inundated with random posts. Instagram will algorithmically select highlights from the new collection of hashtags and display them in your newsfeed. And the Instagram algorithm learns as it goes. By liking or commenting on posts, Instagram will assume you want more of those types of posts to display in your newsfeed; if you click the menu button on the top right of the post, you can instruct Instagram not to show you similar content for that hashtag again. Next, find inspiration in the Instagram feed that you personally curated when you started using the application. For example, if you currently follow accounts such as @catsofinstagram, @dogsofinstagram or @thebabyanimals, you should consider following the accounts of local animal rescues such as @sdhumanesociety (San Diego Humane Society), @ranchocoastal (Rancho Coastal Humane Society) and @hwac (Helen Woodward Animal Center). Nonprofits often have volunteers or staff members dedicated to social media development, such as harnessing the power of a popular Instagram hashtag or

advertising opportunities to volunteer or donate. Take the time to read the brief captions underneath the photographs, notice the hashtags, then select new ones to follow. Posts by the Encinitas-based nonprofit Rancho Coastal Humane Society often include hashtags with broad appeal like #adoptdontshop and #rescuepets. Do a Google search to find local service organizations in your area and start following their Instagram accounts to stay up to date on opportunities to give back. If you previously volunteered your time at a shelter or food bank, tap the magnifying glass in the Instagram app, select “accounts” from the dropdown menu, and enter the organization’s name in the search bar. Some local nonprofits on Instagram include @sdfoodbank (San Diego Food Bank), @feedingsandiego (Feeding San Diego), @fatherjoes (Father Joe’s Villages), and @mealsonwheelssd (Meals On Wheels San Diego). You can also keep tabs on pro bono opportunities on Instagram by following the hashtag #probono and the accounts of local legal nonprofits such as @casacornelialawcenter (Casa Cornelia Law Center) and @freetothrivesd (Free to Thrive). Finally, opportunities to donate your time or money may appear in your Instagram newsfeed where you least expect. National news organizations such as @wsj (The Wall Street Journal), @nytimes (The New York Times), and @apnews (The Associated Press) frequently post on Instagram, providing users with a quick, easy and visually appealing means of staying informed. They can also be a great resource to learn about adventurous or obscure opportunities for donating your time or money to a good cause. Anne Kammer (anne_kammer@casd.uscourts.gov) is a judicial law clerk in the Southern District of California.

May/June 2019 SAN DIEGO LAWYER 15

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T TECHNOLOGY

BY BILL KAMMER

INTERNET MISCREANTS ARE RAPIDLY EVOLVING awyers and their offices remain soft targets for cyber criminals. Our concerns include hacking, phishing and malware. Data theft is a constant worry. Most exposures to crime result from failures of technical barriers, but more common issues arise from attorney and staff reactions to incoming emails.

The global insurer Hiscox annually produces a Cyber Readiness Report. The latest report found that 61% of law firms had been breached in the past year. That was a substantial increase from the 45% reporting a breach in the prior year. Although the largest firms are targeted most frequently, small-and medium-sized firms reported the largest percentage increases year over year. In 2018, one-third of the smaller firms (< 50 employees) were targeted; in the latest report, that figure rose to 47%. Corresponding data from the medium firms rose from 36% to 63%. The rapid increase in the number of these targeted attempts and their prevalence should give cause for concern. New threats continue to arise and evolve. One type is a business email compromise (BEC), sometimes known as an email account compromise (EAC). These are a popular tactic used by crooks to facilitate wire transfers to a controlled bank account. They require little technical skill but only penetration into an office email system or insertion into the funds transfer processes in every transactional or litigation closing. They are potentially very harmful to our financial well-being because the losses may not be covered by insurance. A simple tactic involves an email that contains revised instructions for closing or an email from someone with apparent authority that contains a link to a misdirected bank account. Once the wire transfers are accomplished, the funds are

transmitted, and then removed from the country before anyone detects the arrival failure or misdirection. In a recent example, a firm partner unknowingly transferred about $600,000 from the firm’s client trust account to computer hackers in Hong Kong. How could this happen? By phishing, the criminals had gained access to the email account of a firm partner. They then emailed from that account requesting another partner’s help transferring funds from the client trust account. The partner imposter said that he was out of the office and claimed the client needed the funds promptly to close the transaction. The firm transferred the money out of its client trust account at Bank of America, and it was long gone when the firm discovered the mistake. The firm sought the assistance of Bank of America, but that bank responded that it could only request that the Hong Kong bank reverse the transfer. By the time the Hong Kong bank froze the destination bank account, there was only $24,000 left. So the firm sued Bank of America alleging various contractual and negligence theories. The trial judge refused to transfer the risk of loss from the firm to the bank. In another example, a big law firm sent $2.5 million to the criminal’s bank account in Hong Kong. Again the transfer was part of a closing transaction. The firm received an email apparently from the intended recipient of those funds requesting a change in the destination account. The firm was careful enough to leave a voice mail message at the intended recipient’s office and sought letters of authorization from that company and from the bank to which the funds would go. They never received a call back, but they did receive authorization letters that were, of course, also fraudulent. So they transferred the funds to the scam account. The firm recovered only a few

hundred thousand dollars and litigated with its insurer. The insurer claimed the loss was not covered by the computer fraud provisions of the policy. Damages from malware and ransomware may be covered by a good cybersecurity policy. However, cybersecurity insurers are loath to extend the coverage of their policies to the results of poor wire transfer policies. But the government may provide help. The FBI has an excellent Internet Crime Complaint Center (IC3). It just issued its 2018 Internet Crime Report chronicling 352,000 complaints in the past year involving a reported $2.7 billion in losses from various internet crimes. BAC/EAC campaigns were only the sixth most common cybercrime, but they accounted for almost half of the total losses. To combat that rapidly increasing threat, IC3 established a Recovery Asset Team. Working with other task forces to recover fraudulently wired funds, the team recovered 75% of the lost monies. So when the inevitable loss occurs to you or your office, the first thing you should do is head to the IC3 website and file a complaint (www.ic3.gov). The threats will not go away. They will continue to increase, but we can minimize the risks and financial losses. Constant employee training, appropriate use of cybersecurity insurance and a promptly executed disaster recovery plan can work together to make the real risk small.

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

May/June 2019 SAN DIEGO LAWYER 17

Parisa Ijadi-Maghsoodi

Jared Smith

Jamie Ritterbeck

YOUNG LAWYERS GIVING BACK

By James D. Crosby

or young attorneys, the practice of law can be challenging, time-consuming and, simply put, very hard. Figuring out how to be a practicing attorney and how to make money at it; how to manage time and get the work done; how to keep partners or supervisors happy; how to start and run a practice; how to bill all those hours and still be there in their personal lives; and how to deal with those regular bouts with failing self-confidence. It’s a tough time — not for the faint of heart. But even in these trying, difficult early years, many young San Diego attorneys find the time to give back, to do significant work on behalf of others and to give their time to others in need. Here are three such lawyers. Jared Smith is a five-year attorney and an associate practicing patent law at Fish & Richardson. Jared is married with two small children. He is very busy! Yet, Jared has made a substantial commitment to pro bono work. Working with the San Diego Volunteer Lawyer Program (SDVLP), Jared recently represented an individual with HIV, degenerative disc disease and lupus who had been denied Social Security disability benefits. Jared took the matter on pro bono and appealed the disability denial to the U.S. District Court. After extensive briefing and mediation efforts, the case resolved favorably for his client with a remand back to the Social Security Administration for a new hearing on more than two years of back disability benefits.

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Jared spent about 250 hours handling this pro bono matter to a successful conclusion. He is currently handling an asylum case on petition to the 9th Circuit for an individual now in U.S. detention who experienced horrific persecution in his home country of Honduras. Parisa Ijadi-Maghsoodi is an eight-year lawyer and the Assistant Director of Public Service at USD School of Law. Parisa advises students to help launch their public interest and public sector careers, serves as a liaison to public service employers, and directs USD Law’s Pro Bono Program. Parisa is recently married to another San Diego lawyer. She is also very busy! Yet, Parisa has also made a substantial commitment to pro bono work. Serving as a pro bono attorney for SDVLP, and co-counseling with the Public Interest Law Project, Parisa recently represented an individual and a tenants' rights organization in a highly publicized pro bono affordable housing case against the City of Encinitas. In the writ proceeding, Parisa’s clients challenged a local ordinance that had the effect of preventing statemandated affordable housing in Encinitas. Parisa represented the clients to a highly successful judgment resulting in the City of Encinitas being ordered to adopt a housing element, and thereby rezone land to facilitate the development of affordable housing. Parisa spent in excess of 300 hours on this pro bono matter.

Jamie Ritterbeck is a seven-year lawyer and a litigation associate at Higgs, Fletcher & Mack. She is married with two children, and her military husband regularly deploys on extended tours of sea duty. Yes, you guessed it — she is very busy! Yet, Jamie has also made a substantial commitment to pro bono work. In a recent, complicated, minor asylum case, Jamie, working with the Casa Cornelia Law Center, recently represented a 14-year-old Guatemalan boy. Fleeing an abusive father, extended physical abuse by family members and horrific gang violence, Jamie’s client sought asylum in the U.S. After working tirelessly through the complicated and uncertain legal process, Jamie secured asylum for her client. He has now graduated high school and is working two jobs. Jamie continues to represent the client in efforts to secure permanent immigration status. These young lawyers have incredibly busy and demanding professional and personal lives. Yet, they spend hundreds of hours doing pro bono work to help others. Why? For all three, the principal reason they do this work is the overwhelming need to help close the access to justice gap for those who cannot afford attorneys. Jared describes this need as follows: I have a great respect for our justice system, but it has many flaws. And one flaw that sticks out to me is the lack of meaningful access to quality representation, especially

those without means. I work at a “Big Law” law firm and our clients are typically multimillion dollar corporations who have plenty of means to seek out quality representation, but, for those without means and on the lower end of the socio-economic scale, I think our justice system fails them. Parisa states: I believe that the amount of justice you receive should not depend on how much you can afford to pay for a lawyer. Jamie says: I continue to do it because there is a significant need for pro bono work. Even my assistance seems very little compared to the amount of need that is out there. These three young attorneys have other reasons for taking on this significant work. Jamie finds the work rewarding and quite meaningful: I do pro bono work because it’s meaningful and rewarding to help others who are unable to get help otherwise. Most importantly, the impact to the client is life-changing, and it could be the difference between life and death for them. It’s extremely rewarding to make such a difference in a person’s life. Parisa seeks to set an example for her students at USD School of Law: As the Director of the Pro Bono Program at the University of San Diego School of Law, I think it is very important that I lead by example, that I take pro bono cases in addition to my full-time position and help to increase access to justice for individuals who can’t otherwise afford an attorney. Jared points to the experience he gains as a litigator: The other main overarching reason for me is to get just fantastic substantive experience — getting those experiences in these pro bono cases as well, obviously with different substantive law, but just the act of researching, legal writing, making arguments, researching and getting additional experience, is incredibly beneficial to being a good patent litigator. But how do these busy young lawyers, already juggling substantial professional responsibilities and busy personal lives, find time to do this important pro bono work for others? How do they do it? Parisa just considers it part of her professional life: It is certainly a challenge, but like the majority of attorneys I look up to in San Diego, pro bono is just a part of our lives, part of the privileges associated with being an attorney. And we incorporate pro bono practice into our daily schedules, because it really is an ethical obligation and because it is something we are passionate about. Likewise, Jared works it into his firm workload as if it was any other

firm case: I mean, I don’t have, magical advice for how to do it. I just treat my pro bono work the same as my non-pro bono work. I think the harder one is the personal life. In fact, I just filed a motion for stay in the 9th Circuit in an immigration case last night at about 11 p.m. and had stayed up Friday night, Saturday night and Sunday night working on it because I was trying to juggle my personal life, and not let that get in the way of being a good dad on the weekend. For Jamie, it’s simple, she just does it: I think you can do anything you put your mind to, and you can find time for anything that you want to do. Pro bono work is important to me, so I make the time, and I do it. If I have to work late or on the weekends, I do it. It’s extremely rewarding, so working late just isn’t a big deal. The personal rewards to these young attorneys doing significant pro bono work are real and heartfelt. Jamie: It’s extremely rewarding and meaningful to do this type of work.

Parisa: Doing any amount of pro bono is going to be beneficial, not only to closing the access to justice gap, but also to gaining the benefits that come along with pro bono service. As attorneys, we certainly do take on a lot, but the benefits of taking on pro bono work and being able to successfully manage that work as part of one’s busy schedule allows us to gain timemanagement skills, be more efficient in our day-to-day practices, and gain confidence to handle and balance very important and fulfilling work with our professional schedule. I cannot imagine working as a lawyer without doing pro bono work. Jared: Well, I would say do it. Do your pro bono. If you’re worried about time commitments, there are many types of matters that can be done on a pro bono basis. Some of them are predictable in the amount of work that they will entail and some of them are very transactional.

“It is certainly a challenge, but like the majority of attorneys I look up to in San Diego, pro bono is just a part of our lives, part of the privileges associated with being an attorney. ” -Parisa Ijadi-Maghsoodi There’s a real sense of purpose, and it’s a great feeling to be able to make such a significant difference in someone’s life. Jared also cites the tremendous gratification he gets from his pro bono work: In my speech accepting an award from SDVLP, I said doing the work on the Social Security case was the single most rewarding thing I’ve done as a professional and that includes eight years as an engineer before I became a lawyer. Parisa points to the opportunity to work with other like-minded attorneys: One of the benefits of doing pro bono work is getting to work with and associate with other lawyers who are as invested and passionate about human rights cases. What advice do these young pro bono stars have for other young attorneys considering pro bono work? Just do it!

Jamie: My advice — just do it. The need is so great. The work is meaningful, and it will make your work as a lawyer feel purposeful and fulfilling. You can find the time, and if you are apprehensive about getting the proper guidance and support, I recommend working with a reputable organization, like Casa Cornelia, that provides great mentors and assistance throughout the case. These young attorneys are not alone. Many young, very busy San Diego attorneys find the time to do significant work on behalf of others and give to others in need. That bodes well for our profession and for our city. James D. Crosby (crosby@crosbyattorney.com) is a business litigation and trial attorney. His website/ legal blog is www.trialcall.net.

May/June 2019 SAN DIEGO LAWYER 19

2019

SERVICE AWARD WINNERS Photos by Jason de Alba Congratulations to all of the 2019 San Diego County Bar Association Service Award Winners. We asked this year's winners a few questions. Get inspired as you get to know them on the following pages. View an extended digital version of this feature, including extra commentary and photos at www.sdcba.org/2019winners.

OUTSTANDING ATTORNEY

PETER QUON JR.

OUTSTANDING JURIST

HON. DANA M. SABRAW

District Attorney's Office

U.S. District Court for the Southern District of California

Why do you serve? I like assisting law students and young attorneys, who may not know anyone in the legal field, to explore different legal specialties as career goals. I derive a lot of satisfaction from learning that my assistance at the beginning of their careers helped those students and attorneys attain a secured position with a firm, agency, court, or, in some cases, in a non-law-related job, where they successfully use their legal training and experiences to attain their goals.

Why do you serve? An independent judiciary is the bedrock of our democracy; it ensures fundamental liberties are protected, the rule of law prevails and the other branches of government are held in check. Serving our country in this capacity — as a gatekeeper for all we hold dear — is an enormous privilege.

What advice would you give others to inspire them to serve? That sharing your time and experiences with a law student or young attorney is a gratifying feeling of knowing you have helped contribute to that person’s career achievements that will continue to make positive changes beyond your own career. Your favorite quote? Get the most favorable result for your effort. How can others make giving back part of their daily lives? I encourage others to give back to the San Diego legal and lay communities by expanding their view of volunteering to beyond serving on boards of directors and to consider serving on limitedtime committees, and doing single events for community groups. For example, I have been a cook and dishwasher for the House of China’s annual December Nights fundraiser for more than 15 years. I meet with law students and young attorneys to talk about career choices during impromptu coffee breaks and meals at which my most valuable role is to listen and suggest options. “Giving back” did not require me to be a board member of an organization; I was able to give back by sharing part of my day to help another person. In what ways does serving the wider community benefit the legal profession? By serving the wider San Diego community, and sharing the fact that I am a lawyer volunteering in that activity, allows me to dispel potential suspicions about lawyers and to talk about how lawyers aid the community’s access to the justice system. I encourage students to take law courses to learn how to analyze human interaction as a starting point to building a career in law, business or public administration. 22 SAN DIEGO LAWYER May/June 2019

What advice would you give others to inspire them to serve? Pursue things deeper than yourself. Working for the greater good adds meaning and value to our lives. A life well-lived is often based on deferred gratification in service to others. What/Who inspires you to serve? Law is the noblest profession, and “The noblest motive is the public good.” Serving the public by providing justice to all through a system that is unparalleled in the world, makes the law an inspirational calling of the highest order. Your favorite quote? “We [in the judiciary] have the power to do not what we want, but what is right and just under the law.” — William B. Enright, United States District Judge, Southern District of California A close second: “Speak softly and carry a big stick.” — Teddy Roosevelt How can others make giving back part of their daily lives? Be gracious. Start small. When we’re kind to others, we’re treated accordingly. That way of going encourages us to look out for others, and giving back is simply a part. In what ways does serving the wider community benefit the legal profession? Through service to our community, we honor our profession and build trust. Because the reservoir of public trust is all we have, it behooves us to honor our community through service to others.

SERVICE TO DIVERSITY

DISTINGUISHED ORGANIZATION

ALARA T. CHILTON

CONSUMER ADVOCATES FOR RCFE REFORM (CARR)

Law Office of Alara T. Chilton Why do you serve? I serve because my family and so many others in the legal profession have taught me that by helping others, we help ourselves. I think Cesar Chavez best explained why people should serve when he said, “We cannot seek achievement for ourselves and forget about progress and prosperity for our community . . . Our ambitions must be broad enough to include the aspirations and needs of others, for their sakes and for our own.” What advice would you give others to inspire them to serve? I recommend selecting a cause or issue that matters to you and then connecting with others who share your values. For example, if you care about veterans, contact Veterans Village of San Diego and find out how you can support its mission. Even if you cannot afford to give your time, a financial contribution can make a difference. What/Who inspires you to serve? What inspires me to serve is the satisfaction I receive from knowing I was helpful or useful in some way. Your favorite quote? "The ones who are crazy enough to think they can change the world, are the ones that do." — Anonymous How can others make giving back part of their daily lives? I think the best way to give back on a daily basis is to think of the needs of others. Even a small act of support such as genuinely listening to someone can make a huge difference in that person’s life.

Executive Director: Chris M. Murphy (CMM) Co-Founders: Christina Selder (CLS) & Chris M. Murphy What inspired you to start this organization? CLS: My thesis explored assisted living (AL) as a nursing home alternative. Along the way I saw a lack of public information on AL. I challenged Chris to do something about it. She gave CARR legs. CMM: It was personal for me; a chance to make lemonade out of lemons. What is your vision for the future? Our vision is bringing transparency and accountability to senior care. More universally, we envision that gerontologists are embedded not just in senior care, but in education, all levels of government, corporations and our legal system. We need a lifecourse perspective to build quality systems for a lifetime. What motivates you to continue serving the community in this way? CMM: There is so much to be done. If we don’t do it, who will? CLS: Honestly, it’s the mess I see in our industry: the misinformation, siloed decision-making at every level of government, and exploitation of seniors for monetary gain.

In what ways does serving the wider community benefit the legal profession? When members of the community see lawyers serving the needs of others and acting with compassion and kindness outside of their 9-to-5 jobs, then the community has greater confidence and trust in our legal profession and justice system.

May/June 2019 SAN DIEGO LAWYER 23

SERVICE TO THE LEGAL COMMUNITY

COMMUNITY SERVICE

MARK CUMBA

KIMBERLY SWIERENGA

Attorney General's Office

Swierenga Law & Mediation

Why do you serve? Simply put, I enjoy it, but I have also been the beneficiary of so many other people’s service and this is my small way to give back and pay it forward.

Why do you serve? For me, helping people is like scratching an itch, and it’s a core value I was raised with. Plus, people need people — life is better experienced together!

What advice would you give others to inspire them to serve? Find an organization with a mission or purpose that is significant to you, or an issue that you identify with. Service should not feel like work or a chore. Service to others should be meaningful and something you enjoy doing.

What advice would you give others to inspire them to serve? Give of yourself and share the gifts you’ve been blessed with, someone needs YOU.

What/Who inspires you to serve? My parents. My father was a surgeon with his own medical practice, which my mother managed. Despite the demands of work and raising four children, they always found time to volunteer and be actively involved in the community. Serving others was instilled in me at a very young age. Your favorite quote? “Reputation is what men and women think of us; character is what God and angels know of us.” — Thomas Paine How can others make giving back part of their daily lives? There will always be conflicts or inconveniences that arise … that’s a part of life. But you need to commit to giving back and then just do it. It can be done formally through organizations or informally with something as simple as giving advice to a younger attorney. In what ways does serving the wider community benefit the legal profession? Serving the wider community allows us to become involved with, and engaged in, groups or organizations made up of people with varying backgrounds, life experiences and viewpoints. This exposure to diversity helps us learn empathy for others, which is crucial for the legal profession.

24 SAN DIEGO LAWYER May/June 2019

What/Who inspires you to serve? My mother, who is selfless and quietly serves so many. Frank Fox, my mentor attorney, who is the epitome of gentleness and kindness. Rafay Navaid, my friend, who is the embodiment of generosity. Your favorite quote? It’s a tie: “Don’t wait for your ship to sail in; swim out to it!” — Some inspired, impatient, and driven person. “Dig your well before you’re thirsty.” — Rafay Navaid, my very deliberate and calculated friend. How can others make giving back part of their daily lives? It can start with a mere smile at a stranger. In what ways does serving the wider community benefit the legal profession? For the non-legal community, a lawyer’s service helps correct the misperception that lawyers are only self-interested. For the person who serves, it inspires, motivates and gives perspective for the lawyer to be a better advocate and human.

SERVICE BY A PUBLIC ATTORNEY

SERVICE BY A NEW LAWYER

CHARLES BELL JR.

SPENCER SCOTT

Office of the San Diego City Attorney

Public Defender's Office

Why do you serve? I find a life of service fulling, and I am grateful to have opportunities to give back to my community.

Why do you serve? I serve in order to be a responsible and contributing member of my society to the best of my ability.

What advice would you give others to inspire them to serve? I like the sign that states, “Before you complain, have you volunteered yet?” So next time you feel yourself complaining about an issue in your community, ask yourself if you’re willing to volunteer your time to help find a solution.

What advice would you give others to inspire them to serve? The best advice to inspire others to serve their community is to identify something you are passionate about and get after it. Make a plan and start. Once you start, it becomes easy. Starting is the hard part, so start now.

What/Who inspires you to serve? My parents, my family and the community that raised me. Your favorite quote? “We are the sum total of our experiences. Those experiences — be they positive or negative — make us the person we are, at any given point in our lives. And, like a flowing river, those same experiences, and those yet to come, continue to influence and reshape the person we are, and the person we become. None of us are the same as we were yesterday, nor will be tomorrow.” — B.J. Neblett How can others make giving back part of their daily lives? Mentoring! In what ways does serving the wider community benefit the legal profession? People often express their surprise when they find out that I am an attorney. My work in the community allows me to expand society’s thoughts on what an attorney looks like and how an attorney’s role fits in the community.

What/Who inspires you to serve? I am inspired by my co-workers every day. Whenever I am having a rough day in court, watching my colleagues give their all for each and every one of our clients reinvigorates me. Your favorite quote? "If you’re going through hell, keep going." — Winston Churchill. How can others make giving back part of their daily lives? Volunteer. Volunteering for new tasks big and small will help your community and keep you progressing and developing as a person. In what ways does serving the wider community benefit the legal profession? The more attorneys involve and expose themselves to the community, the better we are able to understand and serve our community through the practice of law.

May/June 2019 SAN DIEGO LAWYER 25

PROTECTING PRIVILEGE IN A CYBER BREACH INCIDENT RESPONSE By Carole J. Buckner

hen a data breach occurs, legal counsel may be called on to advise the company on a wide range of issues from media relations to customer notification, remediation and regulatory requirements. Because class action litigation and regulatory scrutiny can follow a data breach, it is critical to understand and properly address attorney-client privilege and attorney work product during the course of an incident response. Planning for the myriad issues beforehand is an important part of executing a competent incident response.

OUTSIDE COUNSEL Hiring outside counsel at the inception of a data breach incident response can preserve the attorney-client privilege. Business advice from in-house counsel may not be privileged. Aetna Cas. & Sur. Co. v. Sup. Ct., 153 Cal. App. 3d 467 (1984) (dominant purpose test). Some foreign countries do not extend privilege protection to communications between companies and their in-house attorneys.Akzo Nobel Chem. Ltd. v. European Comm’n, Case C-550/07 P, 26 Law. Man. Prof. Conduct 584 (Euro. Ct. Justice, Sept. 14, 2010).

26 SAN DIEGO LAWYER May/June 2019

DUAL INVESTIGATIONS & FORENSIC REPORTS Running dual investigations can also help preserve privilege. In Target’s payment card data breach, one incident response team worked on the business response, focusing on operational concerns, while a second team directed by Target’s legal counsel directed a separate response task force. In re Target Corp. Customer Data Security Breach Litig., 2015 WL 6777384 (D. Minn. Oct. 23, 2015). The plaintiffs argued that communications between the Target task force and the forensic consultant were not privileged because Target would have had to address the data breach regardless of any litigation. Target asserted that the forensic consultant had been engaged to educate the task force run by Target’s in-house and outside legal counsel about aspects of the breach to enable counsel to provide informed legal advice, in part to defend against multiple class action lawsuits filed against Target. One set of documents in question involved email updates from the CEO to the Target board of directors in the aftermath of the data breach. The court ordered such communications produced because they

did not involve any confidential attorneyclient communications or contain requests for legal advice nor provide legal advice. Id. at 3. As to documents related to the work of the task force focused on informing Target’s in-house and outside counsel about the breach for the purpose of obtaining legal advice and preparing to defend the classaction litigation, the court found Target met its burden of demonstrating these documents were protected. Id. at 3-4. Disputes can develop over discovery of forensic consultant’s reports. In In re Premera Blue Cross Customer Data Sec. Breach Litig., 296 F. Supp. 3d 1230 (D. Or. 2017) (Premera I), the consultant hired by the company produced a remediation and intrusion report. After discovery of a breach, the statement of work was amended to provide for supervision by outside counsel. Premera argued that the subsequent report was privileged and protected as work product. However, the court found that report was discoverable because the consultant was hired by Premera, not by outside counsel, and the scope of work did not change after the consultant was directed to report to outside counsel and label the reports privilege. Premera I, at 1245.

In In re Experian Data Breach Litig., 2017 U.S. Dist. LEXIS 162891 (C.D. Cal. 2017), a class-action followed the company’s data breach announcement. The company hired outside legal counsel who in turn hired the forensic consultant to provide information to legal counsel to allow legal counsel to advise the company. The consultant provided a report to outside counsel only, who then shared the report with in-house counsel, all designed to facilitate legal advice by outside counsel. The full report was not shared with the company’s incident response team. When the class-action plaintiffs sought discovery of the report, the court found that it was prepared in anticipation of litigation and thus protected by the work product doctrine. The court rejected the argument that the hardship exception to the work product doctrine applied to allow plaintiff’s discovery of the report, because plaintiffs had the exact same access to mirrored images of the servers as the consultant had.

PUBLIC RELATIONS A public relations consultant is a key member of the data breach incident response team. In California, there is no public relations privilege. Behunin v. Sup. Ct., 9 Cal. App. 5th 833 (2017). Thus privilege may turn on whether a public relations consultant was the “functional equivalent of an employee of the client.” U.S. v. Chen, 99 F.3d 1495, 1500 (9th Cir. 1996). Communications seeking legal advice about how a particular article may impact the company or litigation, or how, from a legal perspective, the company should respond, are privileged. In re Premera Blus Cross Customer Data Sec. Breach Litigation, 2019 U.S. Dist. LEXIS 20279 *11 (D. Or. 2019) (Premera II). If, however, the communication involves merely the facts of the article, or how others are responding to the article, without a request for or provision of legal advice, merely including attorneys on the email does not render the email privileged. Id.

Communications with a public relations consultant during a data breach investigation, even those incorporating advice of counsel, may not be protected by the attorney client privilege. Premera I, 296 F. Supp. 3d at 1241-42. Documents prepared by employees and third-party vendors, even at the request of counsel, are not privileged if not prepared because of litigation. Id. at 1242. The court looks at whether the primary purpose is to address the data breach, a business function or to obtain legal advice. Id. at 1243. However, communications sent to and from legal counsel seeking or providing actual legal advice or the possible legal consequences of a proposed text are privileged. Id. Handling communications appropriately during a data breach incident response can preserve privilege in later litigation. Carole J. Buckner (carole.buckner@procopio.com) is Partner and General Counsel at Procopio, Cory, Hargreaves & Savitch LLP.

Top L-R: Michelle Gastil, Kristen Fritz, James Crosby Bottom L-R: Tristan Younghaus, Alreen Haeggquist

A PANEL DISCUSSION

PRACTICING LAW IN CHANGING TIMES About the panelists: Kristen Fritz is an attorney with Smaha Law Group. She has been in practice for over 18 years. Tristan Younghaus is owner and attorney with Coastal Pacific Law. She has been in practice for six years. Alreen Haeggquist is the founder and managing partner at Haeggquist & Eck LLP. She has been in practice for 17 years. Michelle Gastil is a solo practitioner with a focus on civil litigation and bankruptcy. She has been in practice for 10 years.

BY JAMES D. CROSBY

e live in turbulent, disruptive times. Technology is rapidly changing how we live and work. The boundary line between work and home is becoming less and less clear. Demographics are changing, diversity is on the rise, power is shifting, business is changing, and the pace of business and life is accelerating. And the practice of law is not immune to these sweeping changes and emerging trends. San Diego Lawyer brought together four prominent San Diego attorneys to discuss emerging trends in the practice of law and how those trends relate to their current practices. The gender makeup of the panel members (all women) and the generational gap between the panel members (two attorneys under 10 years of practice, and two attorneys, each with almost 20 yearsâ&#x20AC;&#x2122; experience), as well as their differing practices and experiences, led to a lively and interesting discussion, which at times strayed outside its initial premise. James Crosby, a San Diego civil litigator and trial attorney, moderated this free-flowing conversation covering a broad mix of topics. Following are highlighted excerpts form the conversation.

28 SAN DIEGO LAWYER May/June 2019

CHANGES IN COMMUNICATIONS Alreen Haeggquist: The fact that clients can text you, Facebook message you, email you, call you. That is different even from when I started practicing. If I don’t turn that off, that keeps me up at night. I practice just trying to turn myself off and not being constantly engaging so I can give my mind a rest and be fresh for the next day. But I also pride myself on being responsive because it’s high emotion. Everybody that’s contacted us has either lost their job or lost a lot of money from the business. So, I feel like the name, counselor, really comes into play with what we do. They’re looking for somebody to counsel them through the situation that they’re in. I think it’s important to be there for them. Kristen Fritz: Communication with the clients, I would agree, is an issue. The expectation of clients — and that comes up a lot in the time that they want from you and how quickly they want something. So, it’s a lot more immediate. And because of the advances in technology, everybody else that’s working for them is giving things immediately. Well, why can’t the lawyer give them immediately, too? But, I’m a chronic insomniac! I’m the person that will respond to a client at 2 or 3 o’clock in the morning. However, between 4 and 8 a.m. that’s my — you message me then, you’re going to have an issue. I just decided it’s often easier for me to deal with something in the moment. Michelle Gastil: Oh, gosh, I didn’t think I would ever be a solo practitioner who would sometimes never meet a client in person! Tristan Younghaus: I’ve never known anything else but high amounts of client communication. And I like to be very responsive. But it’s the same; you want to turn it off a little while so you can get some sleep. I do find it’s important to set boundaries because my firm tends to be high emotions because somebody’s passed away, something’s going on in the family. So, I say, if you’re going to text me, I can’t guarantee that I’m going to get it. You can try doing it that way but calling and email is always best. I try to manage it that way.

TECHNOLOGY/ MOBILITY Kristen Fritz: Technology makes our jobs much easier. Our firm just recently went from a hard server, to a cloud server which is great because there are additional protections for our data, and also the ease of accessibility from absolutely anywhere. Alreen Haeggquist: Technology does allow you to work and communicate anywhere and do things you don’t have to be physically in the office for, which is nice. Tristan Younghaus: Innovations and tech are great. I can’t imagine running my firm without some of the management software I have, makes it virtual, handles all the cases together, and puts everything on the cloud, making my life easier. So, I love tech. And, I think that all attorneys will eventually embrace it. Makes my life easier.

CYBERSECURITY/ CLIENT DATA Alreen Haeggquist: Cyber security — that’s actually a very big concern at our office because people work remotely and because of the dangers presented by hacking. So, how do we handle that? I try to put as many security measures in place at the office as possible to protect clients’

information. I think I have a duty to do that. So, we spend money in making sure that’s taken care of, plus provide training. Tristan Younghaus: My firm is pretty small. But I do have the same security concerns as any firm. I know people who have actually gotten their firmware ransomed. They encrypted the information and demanded Bitcoins in exchange to unencrypt their information. So, I am very aware of that. I have a cloud server and I regularly back it up. Securing client information is the most important. And you always have to be on the leading edge of that because they’re always making new advances. Just because you’re a small attorney, you can’t get away from it.

COMPETITION/ MARKETING Kristen Fritz: Unfortunately, it’s a very saturated legal market. There are so many attorneys. But I do like that there are opportunities for smaller firms or solo practitioners to do the type of work that traditionally would only go to a big firm. I’ve done a lot of work for small firms that I would have expected to have gone to a bigger firm for in the past. But now some clients understand they actually might get better attention, better legal work, lesser fees, for, you know, the same or higher quality of work and attention to the case. I do think that’s something that has changed, and technology is part of that. May/June 2019 SAN DIEGO LAWYER 29

of learning on the job is something that’s been invaluable in my practice. Alreen Haeggquist: Our work still comes — the best work still comes from people, you know, other attorneys, friends, private clients. We have a presence on the web. And have had a lot of engagement in the paper. Frankly, we don’t spend a lot of time, I guess, in marketing at our firm. I think we do now — because we’ve been in business for a while and have been established, that the name’s out there now. And I believe that there’s plenty of work for people. There’s a right attorneyclient fit for everyone.

DIVERSITY/RISE OF WOMEN IN LAW Tristan Younghaus: I think that in addition to being the master of the law and keeping up with the legal trends, you really do have to have a degree in marketing because it’s anyone’s game now. It’s so important to know how to utilize the web. And, you should have every avenue open to make your practice succeed. So, I try to read as much marketing material as I can in addition to keeping up on the law because that’s just so important to my practice. And that is something I didn’t learn at all in law school. My undergrad was in economics. And, then, I didn’t have any marketing classes in law school. So, I’m kind of a beginner there. But, you know, five years

Alreen Haeggquist: I left a big firm to create my own culture. I think that is the trend. We have the power to create our own culture and create exactly the workplace we want. And we don’t have to keep being at a firm and being in that old boys’ network and demanding it from them. We can say, “Oh, we can do it ourselves,” or we can do it better or we can do it differently or we can create the environment we want. So, I think in that sense it’s kind of changing and evolving in that we’re recognizing we have the power to say we can do it without you.

"We have the power to create our own culture and create exactly the workplace we want."

30 SAN DIEGO LAWYER May/June 2019

Kristen Fritz: Very early in my career, I was in the old boys’ network. And I learned a lot from that. And for me, I think it actually advanced my career. It wasn’t a detriment to it. However, I also got to the point where I said, you know, I don’t really need this anymore. I started changing and making my own path. But one of the things that I think is really unique about the San Diego legal community is the support systems that are here that enable minorities and women to go out on their own. I think San Diego is a lot more advanced in terms of supporting women and minorities and their ability to practice the way, and with whom, they would want. Michelle Gastil: When I first started practicing, it was the end of 2009, I got involved with a group called Girls Think Tank. And I met Alreen! Other founding members of this organization were also female attorneys. I look up to all of them and definitely think that I’m lucky to have started my career in this community. I don’t know it’s probably different in other communities. So, I definitely feel fortunate to have such a strong community here with just a lot of women business owners.

GENERATIONAL CHANGE/RISE OF MILLENNIALS Alreen Haeggquist: I get excited about young lawyers. I was a young lawyer once. And I remember when I graduated law school, I was super idealistic. I was super excited about the law. You could have given me anything, and I was like so excited to work on it. So, I love young lawyers for that reason. I see that glimmer in their eyes. They’re super excited to get out there. They’re super excited to help clients. They want to do whatever they can to learn and grow. Yes, I’m excited about their energy and moving forward. Kristen Fritz: I feel like part of the work that needs to be done to bridge the gap between us is to educate us, as the older generation, as to how to understand and work with millennials. They grew up in a very different time and space. And their experiences and the way that they work and socialize is different — it doesn’t

necessarily mean that it’s better or worse than ours; but it is different. So, I do think that’s where some of the bad reputation or comments come from about millennials and certain things about the way that they work. But I think that it is what it is. So, rather than knocking it, figure out a way that we can also change and work together to learn the best ways.

NON-LAWYERS DOING LEGAL WORK & AI Tristan Younghaus: I think a lot of estate planning will go by the wayside. I mean people will always want that personal touch, or client-attorney touch. And, I don’t think that will go away. But I do think that companies like LegalZoom and such are going to take a lot of the smaller estates away. So, you know, you really have to focus and find opportunities through the technologies. I think you just have to look at it differently or find a new perspective or opening that is created. I’m looking forward to technology. I want everything automated. So, I think it’s a blessing as much as it is changing the landscape of my practice. Kristen Fritz: I was part of a nonprofit that we started here in San Diego that does public interest advocacy and, you know, looking at having non-lawyers provide services in ways that lawyers can’t, principally for financial reasons. I think though, as with anything else, you can be trained to do certain things. And you will have people that will do them well and that will do them ethically, regardless of whether they’ve gone to law school. And I believe if you are opening up an entire population of people who otherwise cannot afford or will not get legal services and they will get regulated — to be clear, emphasis, underlined, regulated — controlled services from a nonlawyer, I am all in favor of it. Alreen Haeggquist: Artificial intelligence? There’s been discussion about it. I forgot what I was watching. They were talking about it in the sense of artificial intelligence doing the research and the research would be done for you. And that would be very different. Yes! But I feel like there is. I don’t know how you

can replace human interaction. I still think that is important. And I don’t think that’s going anywhere. I think for that reason we will still be around. I don’t think we will be obsolete! Kristen Fritz: A lot of it could be done by AI. I think it’s research. I think it’s drafting, too. A lot of things that are formulaic, even arguments and briefing. In terms of our practices and being able to do it, I think that it will never replace us as attorneys, and the judgment calls that we’re making, and the advice that we’re giving, and the interactions we have with clients.

PRACTICING LAW

Michelle Gastil: I still love being a lawyer. I did graduate during the recession: 2008-2009 were fun years to graduate! I was fortunate enough to get a job after I passed the Bar and got another job after that, and then fortunate enough to be in a place where I started my own solo practice. Some cases bog you down. Some cases keep you up too much at night. Other cases, this is why I’m a lawyer. If I wasn’t here, this person would be bulldozed through this case. And I’m here to help this person.

backgrounds and very different places, but we’re all trying to accomplish the same thing, you know, providing for our family, putting food on the table. The work that I do representing employees, I think everybody should have a fair shake in the workplace, right? Women should be treated equally. They should be paid fairly when they’re doing the work to support their family. So, to me, I still love it. I still love practicing law. It still gets me excited. Tristan Younghaus: I love being an attorney. I love the community. I think we all want to help people; and we’re doing that in our own way, no matter what area we’re practicing in. You know, I can’t think of anything else I would rather be doing. I really enjoy my clients and living here in this community. So, it’s a great experience.

GOING FORWARD

Kristen Fritz: I think discussion is key. I think having conversations like this, talking about what is coming and then getting ideas of what we can do. I mean the trends are going to be either what we watch come by us or what we create. So, I would love to be involved in that rather than having it happen to me.

Alreen Haeggquist: I love it. I love helping people, being the voice and standing up and saying, “What you did to me wasn’t fair.” I believe all of us sitting here have come from very different May/June 2019 SAN DIEGO LAWYER 31

THE SAN DIEGO CITY ATTORNEY’S OFFICE TAKES A FRESH APPROACH TO INTERNSHIPS BY KENNETH SO

ost attorneys have done a legal internship as a law student. The experience they gained provided practical experience to complement law school classes and helped them land their first attorney job. Legal internships can also shape a law student’s developing perspective on the practice of law, as well as his or her individual career path. Although programs vary, they tend to share common characteristics. Typically, an intern is assigned to a smaller, specific section of an organization along with an attorney supervisor in that section. The supervisor usually comes up with the assignments for the intern. If there is more than one intern under the supervisor, the supervisor decides what assignments will be handled by which intern. This method of assignment has unfortunate limitations — for both the interns and the program. In a law firm with broad practice areas, an intern could be specifically assigned to a particular practice group, and would generally only work on matters related to the group or the supervisor to which they were assigned. In some cases, if a legal intern “Jim” were assigned to attorney supervisor “Ashley” in, say, the land use litigation section, Jim may only get to work on land use matters that Ashley was working on. If any other attorneys in Ashley’s firm

32 SAN DIEGO LAWYER May/June 2019

needed intern assistance, those attorneys would typically need to ask Ashley’s permission for Jim to work on their matters because Jim would be considered “Ashley’s intern.” Regardless of who was assigning the project, typically the intern would not have the opportunity to choose between different projects to work on. Being “Ashley’s intern” can prove beneficial, or demoralizing. For example, if supervisor Ashley is too busy to assign projects or not busy enough to have an appropriate project for intern Jim, he may find himself without anything to do or being assigned “busy work” for the sake of having something to do. At the same time, while Jim is doing “busy work” or has nothing to do, there may be other attorneys in Ashley’s firm that could use his assistance. Depending on the rules of that firm, the other attorneys may be barred from using Jim and, even if they could, may not know whether Jim had the ability to take on their projects. In addition, if Jim determined midway through his internship experience that he no longer enjoyed doing land use litigation or perhaps that he wanted to explore his potential interest in, say, commercial real estate transactional work, Jim may have no choice but to continue taking on only land use litigation assignments for the duration of his internship.

To address these potential concerns and to offer law students a broad, practical educational experience, the San Diego City Attorney’s Office (Office) has taken a unique approach to its Civil Division Internship Program (Program). The Program starts from the premise that an intern is not “Ashley’s intern”, but rather assigned to the entire Civil Division, where any of 60 or more civil attorneys may post intern assignments. By taking this approach, the Program allows interns to work with multiple attorneys practicing in a variety of practice areas. Interns are exposed to both litigation and transactional/ advisory-related assignments as part of the same internship. Each intern is assigned an attorney supervisor who acts as a mentor, but is not directly responsible for providing the intern with work assignments. This provides our interns with a collaborative, immersive, customizable and educational experience. Some have even described our Program’s approach as the “Uber-ization” of internship programs. To make the Program work, the Office developed a customized website portal to facilitate interaction between attorneys and interns. The website contains several features, including:

Each intern’s name, photograph, work schedule and work contact information, along with a redacted resume that allows attorneys to learn more about the interns’ background. This assists the attorneys who could benefit from working with a legal intern with specific experience.

An assignment board where attorneys post assignments. Interns are tasked with distributing the posted assignments among themselves based on interest and availability. This feature enables interns to get the most out of their experience by taking on assignments that interest them most.

An events calendar with training and experiential learning opportunities available to the interns. Like the assignment board, Civil Division attorneys post opportunities for interns to join them in action. For example, litigators often post opportunities for interns to accompany them to depositions, mediations and other appearances. Interns are also invited to attend meetings with City staff and City Council, and to assist City departments with problem-solving. A notification feature that lets the assigning attorneys know their projects are complete and requests a written evaluation to be completed.

The Program is managed by 11 attorneys who volunteer their time serving on the Office’s Internship Committee. The Committee regularly meets with the interns to discuss various issues and topics of practical concern to their professional development. Field trips to the state and federal courthouses and to various City facilities also provide interns with a well-rounded experience. For example, interns have learned about Lifeguard Services by having an opportunity to ride in a lifeguard boat to see how different equipment is used in rescue operations and learn about the interaction between the City Attorney’s Office and Lifeguard Services as it pertains to various legal matters such as drafting contracts to procure such equipment or getting approval for grant funding. Overall, the Office believes that the Program allows for more effective use of legal intern resources and provides the interns with a rich educational opportunity. The Program has been incredibly successful, filling classes with talented law students from the University of San Diego, UCLA, UC Irvine, California Western, Indiana University, UC Berkeley, Thomas Jefferson and UC Hastings. The Program is expanding its reach each year, receiving applications from all over the country including Harvard, Cornell, Columbia, USC, Pepperdine, UC Davis, University of Minnesota, University of Denver, and many more.

In addition, the Program has attracted interest from law school professionals. Law school professors and career services directors from UC Berkeley, University of San Diego, Thomas Jefferson and Brooklyn Law School have visited the Office to specifically learn about the unique features of the Program. In April, the assistant dean of Harvard Law School visited the Office to learn more about the Program. The Office has also been contacted by other legal organizations who are interested in developing their own web portal. Most importantly, law students who have gone through the Program have raved about the great practical experience and exposure that they get from being able to work on a variety of assignments in different practice areas with different attorneys. The Program conducts an anonymous survey of the experience of interns at the end of each internship session and the reviews have been overwhelmingly positive. One review sums up the overall experience well: “This Office offers experience in every area of law for an intern that can make time to seek it out. The attorneys in this Office are excellent mentors. There are amazing practical lessons to learn here. The Internship Committee goes out of their way to make this something special.” Kenneth So (kso@sandiego.gov) is a Deputy City Attorney in the San Diego City Attorney's Office.

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Criminal Trials

Two veteran attorneys reveal the biggest trials and tribulations of working in criminal law. By Aleida K. Wahn

magine what it feels like to hold someone’s life in your hands. Or losing sleep over the conviction of a person you believe is innocent. Or having the pressure of seeking justice for a hurting family. This is the real life of a criminal law attorney. I sat down to talk with two veteran attorneys, one a career criminal defense attorney, the other a lifetime prosecutor, about the biggest trials and tribulations they have faced. Peter Liss has always been impassioned in his representation of the accused, whether it be a death penalty case or a misdemeanor matter. Thirty-five years of advocating has not dimmed his fire or the fight within. His calling to law began in courtrooms abroad when, as a young boy, he would accompany his father, a civilian air force reporter, to court in places as far away as Japan, Spain, Germany and Italy. Believing in defending the rights of all, Liss spent five years at the San Diego Legal Aid Society and 10 years at the San Diego County Public Defender’s Office, before opening his private practice. In reflecting on his decades in criminal law, Liss states the worst thing that could ever happen in a courtroom is for an innocent person to be found guilty, and for such an injustice to happen on his watch. Liss recalls the sleep he lost for years over a client’s conviction in a third strike trial during his tenure as a public defender. Harboring substantial doubts over his guilt, Liss was haunted by the verdict. It was not until the man was subsequently convicted of a cold case murder that Liss was finally able to move on. Liss next cites the challenges of getting clients to have a realistic assessment about the consequences they are facing, and to

properly prepare them for it. Clients often believe an attorney can magically make their case disappear. Liss understands dismissals are rare, and clients will not be happy with the real consequences that remain. Freedom, employment, familial relationships and social standing are affected. Telling clients they will be going to prison is a rough part of the job. Liss believes it is crucial to be forthright, laying ground rules from the very start, and to never give clients false hope. Yet, the hardest part of being a defense attorney, and which Liss cites as “the core” of his profession, is one must be willing to be the most unpopular person in the courtroom to ensure a client’s rights are fully met. To do so, one may have to force a slowdown of the process, be willing to disagree with the court, withstand pressure, criticism, intimidation, and, at times, even personal barbs. Simply put, one needs thick skin to prevail. While standing up for a client always is absolute, it is also imperative to take the time to humanize the defendant. Tom Manning has nearly seen it all in his 32 years of working as a prosecutor with the San Diego County District Attorney’s Office. He has tried countless high-profile murders, worked on the Drug and Gang Task Force, been Chief of the Major Narcotics Unit, and is currently the supervisor of the Cold Case Homicide Unit. Manning also works as an instructor, teaching seminars nationwide. During trial, Manning finds the biggest challenges are proper time management and protecting one’s health. Manning says the dedication to a trial cannot come at the expense of everything in your life. He understands this lesson well, recalling the long hours he worked every day for

two years, except major holidays, on the murder trial of Officer Bessant. The stress of a trial can also disrupt his sleep, or cause dreams where he feels he has been in trial all night long. Having an outlet is the answer. Manning sets aside time to go to the gym or bike ride, and found great pleasure in coaching his son’s baseball team and attending his daughter’s cheerleading competitions. Being a prosecutor brings an enormous responsibility and pressure as Manning is called upon to represent society and seek justice for all. Victim’s families depend upon him. Manning is a perfectionist and says the key to alleviating the pressure is over preparation. He vows to himself no one will out prepare him. At the end of a trial, he knows there is nothing more he could have done. An unfortunate result of working with predators and violent criminals on a continuing basis makes one guarded and suspicious. Manning’s father, who worked for the NYPD, characterized this as seeing the world through “cop’s eyes.” To overcome this outlook, Manning reminds himself most people are good. Immersing himself in community activities and volunteer work further renews this belief. We applaud the work Peter Liss and Tom Manning have done through the years, and the message they leave for those following in their footsteps. Aleida K. Wahn is an attorney and awardwinning true crime writer, and legal analyst of criminal cases. You may contact her at www.aleidalaw.com.

May/June 2019 SAN DIEGO LAWYER 35

Criminal Defense THE PRIVATE PRACTICE VIEW By Stefano L. Molea

hen people ask me why I wanted to be a lawyer, I jokingly respond: “I grew up arguing in an Italian family, so I figured I should get paid for it.” However, when people ask me why I decided to practice as a criminal defense lawyer, my answer is a bit more serious: I enjoy helping protect the integrity of our Constitution, to provide the counterbalance in our system of justice, and to protect the rights of my clients. In criminal defense, maybe a little more than other areas of law, if you do not have a passion for your work, you will not last long. The technical aspect of criminal law is intellectually stimulating; the subject matter can be emotionally taxing; and representing a client’s best interest to

obtain the best possible outcome can be challenging. As I reflect upon almost a decade of private practice, having had the privilege of working with some of the best criminal defense lawyers (both private and public), prosecutors and judges in Southern California, there are a few perspectives that I have developed that may be unique to the private sector. MANAGING EXPECTATIONS First, when clients are considering paying for your services (when they might be able to obtain services at little or no cost through the County), managing expectations is critical. There have been many occasions where someone is sitting

"... constant contact with clients, with fast email response rates and various meetings, builds rapport and allows the client to see the actual work and efforts being put into the case."

across from me and asks: “If I am going to spend this money to hire you, can you guarantee me my freedom?” Of course, my standard answer is, “If any lawyer guarantees anything, other then their hard work and dedication to your case, you should run the other way.” However, by explaining the process, possible strategies and important factors that determine outcomes, a potential or current client gains important perspective and expectations are re-calibrated. ACCESSIBILITY Along the lines of managing expectations, part of private criminal defense representation involves frequent accessibility from clients and sometimes their families. The “hand-holding” within the representation is certainly part of the customer service, and although not directly correlated to the actual legal work and obtained outcomes, it can have an impact on how the outcomes are perceived. For instance, constant contact with clients, with fast email response rates and various meetings, builds rapport and allows the client to see the actual work and efforts being put into the case. If they feel informed, and if that information is reiterated (sometimes ad nauseam), they will be part of the process. THE BUSINESS SIDE Due to the path I have chosen, I cannot be an effective criminal defense lawyer if I do not have clients to serve. As we have all heard before, law school does

36 SAN DIEGO LAWYER May/June 2019

not teach us how to run a business. While there is a learning curve to understanding marketing, customer retention, customer service and profitability, law school does teach us how to build a foundation for both our careers and our business — the importance of reputation. There are various strategies out there to generate business that focus on paid awards, flashy websites, search engine optimization and marketing budget, but seem to ignore the importance of reputation. On the other hand, having a great reputation alone will not produce a profitable business. With the world of social media and Google, a potential client is bombarded with information and options. Working to help them sort through all that information, so that you can serve them and run a business at the same time, is the challenge. The Personal Side Criminal cases can be stressful. Both the subject matter and expectations, hopes and worries of the client can weigh heavily. The pressures of what I think, or the client thinks, the outcome should be certainly creates anxiety. Whether it is at trial, a motion hearing or readiness conference where a potential plea bargain is discussed, their concern for their freedom, reputation and future are the forefront of everyone’s mind. This, of course, is not unique to the private sector. For running a business, however, there is the added pressures of fluctuations in the market and the need to maintain the stream of clients. On top of that, there are the exceptional cases. The ones that keep you up at night. The ones where our system fails to help or where, by my perception of what is a fair outcome, the client is punished in a way that seems to defy societal interests. To handle those layers of stress, work-life balance is crucial. Finding an outlet, such as exercise, is crucial. We cannot let one of those stressors go beyond its designated, categorical capacity. To do otherwise, either the business, our clients, or our personal life suffers. Stefano L. Molea (stefano@dpshapiro.com) is Partner with The Law Offices of David P. Shapiro.

Criminal Defense THE PUBLIC ATTORNEY VIEW By Michael L. S. Hawkins

have been a public defender for the last six years. I have heard “public pretender,” “when are you going to be a real lawyer?” and “when are you going to be a DA?” Early in my career, these questions bothered me. We do not pretend; we work hard and care deeply! I think to myself, “I am a real lawyer, I passed the Bar!” As time with individual clients went by, their opinions changed. As time with the office has gone by, my approach has also changed. I know the questions and concerns I hear come from a place of not knowing and being scared about the criminal justice process. My approach has evolved to understand the root of the question or concern, and address the issue. Sympathy is not enough; empathy is what my client needs and deserves. Therefore, I get into that hole with them and we find a way out. The logistics that come with being a public defender is different than work in other legal fields. I am in court nearly every day. My suits, shirts, ties and shoes walk to court every day, walk back from court every day. They go into all county jails, police stations, crime scenes, hospitals, and have even made their way into their fair share of mud puddles. That is life as a public defender. But, when trial day comes, the best tie will be on and the shoes will be polished.

A personal struggle of mine is to strike the right balance between (1) maintaining my objectivity and (2) humanizing my client in the criminal justice system. My clients deserve an attorney who is a zealous advocate, proper advisor and achiever of rational results. For example, the more I know about my client, the more I like them. The more I like my client, the more I treat them as a new friend, as opposed to their lawyer. I would never have my best friend represent me in a criminal action because he would be distracted by the emotional bond we share and would run the risk of bad advice. The reward after this challenge is well worth it. A fair resolution or fair verdict is made all the more rewarding when earned through an honest fight for what is right. There is no doubt the criminal justice system has its imperfections, but with every participant diligently exercising their role, justice and fairness can prevail. The challenge of going against the system day in and day out makes the words “dismissal on the people’s motion,” falling second only to the words spoken from the jury, “not guilty.” Michael L.S Hawkins (michael.hawkins@sdcounty.ca.gov) is a Deputy Public Defender with the County of San Diego in the Primary Public Defender's Office.

"A personal struggle of mine is to strike the right balance between (1) maintaining my objectivity and (2) humanizing my client in the criminal justice system." May/June 2019 SAN DIEGO LAWYER 37

The 2019 Distinguished Lawyer Memorial Inductees

Thomas H. Ault

Eugene “Gene” Gordon

Gerald “Jerry” McMahon

Kay L. Sunday

Paul B. Wells

John W. Wi�

Thank you to those who joined us at the Dis�nguished Lawyer Memorial recep�on as we celebrated the lives and careers of the 2019 Inductees. To honor these dis�nguished individuals, please consider a tax-deduc�ble contribu�on to the San Diego County Bar Founda�on, which supports more than 50 law-related organiza�ons in San Diego County. In 2018, SDCBF awarded $521,000 to 24 non-proﬁt organiza�ons, providing access to jus�ce (though legal services and educa�on) to those individuals most impacted by poverty, abuse and discrimina�on throughout San Diego County. To make a general dona�on to San Diego County Bar Founda�on on behalf of any past, or present DLM honoree, please visit: www.sdcbf.org/donatedlm

clipped wings Thinking of traveling abroad while you owe Uncle Sam? Think again! By Mitchell B. Dubick & Joshua P. Katz

ith the 2015 enactment of the Fixing America’s Surface Transportation (“FAST”) Act, Congress provided the IRS with a new tool for putting pressure on taxpayers to pay outstanding tax debts. In addition to an already broad arsenal allowing the IRS to levy assets and accounts, garnish wages, intercept federal payments and state tax refunds, and file notices of lien, the IRS can now notify the State Department of taxpayers who are certified as owing a “seriously delinquent tax debt.” Under this new law, such taxpayers will be denied a new passport, may not have their current passport renewed, and may even have their current passport revoked. Although this provision was enacted in 2015, the IRS and State Department took some time deciding how to implement it. However, by mid-2018, the IRS began sending letters informing taxpayers that their debts had been certified to the State Department and that their passports would neither be issued nor renewed until they either paid the back taxes in full or made other payment arrangements satisfactory to the IRS. A “seriously delinquent tax debt” is defined under Code Section 7345 as an assessed tax liability greater than $50,000 for which either a notice of tax lien has been filed or a levy has previously been made. This $50,000 threshold is indexed for inflation; the 2019 threshold is $52,000. Because a notice of lien or intent to levy must first be filed before a taxpayer is considered seriously delinquent, taxpayers who have been delinquent for a short time are less at risk than those with outstanding liabilities for many years.

What is less apparent from much of the publicity surrounding this new law is that those at risk because they owe more than $52,000 have several options to protect their passports without paying the debt in full. For example, the IRS is barred from notifying the State Department of the debts of taxpayers who have: •

Entered into an installment agreement with the IRS

•

Had an offer in compromise accepted

•

Entered into a settlement agreement with the Department of Justice

•

Timely requested a Collection Due Process Hearing following a notice of levy

•

Submitted a request for innocent spouse relief

In addition to these statutory restrictions, the IRS has issued guidance that they will not notify the State Department regarding debts of taxpayers who: •

Are in bankruptcy

•

Are identified by the IRS as a possible victim of tax-related identity theft

•

Are determined to be currently not collectible due to hardship

•

Are located within a federally declared disaster area

•

Are serving in a combat zone

•

Have an installment agreement request pending with the IRS

•

Have a pending offer in compromise with the IRS

•

Have an IRS-accepted adjustment that will satisfy the debt in full

The IRS notification to the State Department does not automatically revoke a taxpayer’s passport. Rather, passports are still valid until the State Department notifies a taxpayer in writing that a passport is either being revoked or restricted. In addition, the State Department must provide a 90-day holding period for passport applicants who have been certified as tax delinquent to allow for resolution through payment or other arrangements before the application is denied. Moreover, if taxpayers are abroad when they learn their passports have been cancelled or revoked, there are provisions for allowing return to the U.S., either with a current passport being limited to returntravel only, or by issuance of a separate return-only passport. Finally, if the IRS issues a certification of delinquency in error, a phone call directed through proper channels may reverse the error; if not, there are legal avenues for filing suit in either federal district court or the Tax Court. On balance, this new tool in the IRS arsenal is well-designed to force delinquent taxpayers to deal with federal tax liabilities before traveling abroad for business or pleasure. Tax advisors — whose clients often prefer procrastination rather than dealing with tax problems — can also tout the benefits of arranging a plan in lieu of a passport revocation. Mitchell B. Dubick (dubick@higgslaw.com) & Joshua P. Katz (katzj@higgslaw.com) are tax litigators at Higgs, Fletcher & Mack LLP, specialize in dealing with federal and state tax disputes.

May/June 2019 SAN DIEGO LAWYER 39

WHAT TO DO WHEN YOUR CLIENT DISAPPEARS—ACTUALLY OR IN EFFECT Introduction: In this new feature, Edward McIntyre, professional responsibility lawyer and co-editor of San Diego Lawyer, examines the ethical considerations when a client disappears. It can happen. The client was right there. Then gone. Either vanished. Or refuses to communicate — at all. In either case, the client’s gone. All the while, deadlines loom. Ethically, what’s a lawyer to do? No easy choices. Rule 1.4 (communication) requires a lawyer “reasonably” consult with the client about how to accomplish the client’s objectives and keep the client “reasonably informed” about significant developments. But if the lawyer cannot communicate with the client — because the client has disappeared or refuses to communicate — and the lawyer has made reasonable efforts to find the client or get the client to communicate, the lawyer has one option: withdraw.

WHEN ? WHAT TO DO

Rule 1.16(b)(4) permits withdrawal because the client has made it unreasonably difficult for the lawyer to carry out the representation effectively; further, since the lawyer’s authority is significantly limited in any action he or she may take on the client’s behalf, rule 1.16(b)(9) also permits withdrawal because continued representation will likely result in violation of the rules or State Bar Act — e.g., Bus. & Prof. Code section 6104 (appearing without authority); see also California State Bar Form. Opn. 1989-111. In withdrawing, however, the lawyer may not disclose, either to the court or opposing counsel, that the client has vanished or is incommunicado. Bus. & Prof. Code section 6068, subdivision (e)(1) and rule 1.6 (confidentiality).

ENJOY MORE OF THE BAR FOR LESS OF YOUR OWN BUCKS! We love when our members engage, so don’t miss this incredible opportunity to do it at a third of the cost! For an up-front price of $50, we will credit your Bar account with $150 in BarBucks to spend on programs and events at the SDCBA throughout the year. Once purchased, your BarBucks will be available in your account to apply at the time of registration. Certain exclusions apply, for more information and to purchase BarBucks please visit www.sdcba.org/barbucks

HOW TO BE UNDERSTOOD WITH GREAT CLARITY:

be blunt By Jane Wesley Brooks

ll too often, while sitting in Court I hear the Judge ask the current attorney arguing their case, “What do you want? What are you requesting the Court order?” Clearly, the attorney who is arguing before the Court and who painstakingly drafted their client’s pleadings, is stunned and dumbfounded as to why the Court is confused because he or she thinks their client’s position is crystal clear from the pleadings, if not from the brilliant argument now being presented orally in support of those same pleadings. So where is the disconnect?

This article is intended to give some simple writing tips to make the method for writing declarations and legal correspondence more clear and concise for the reader, whether the Court or counsel is the intended recipient. Declarations/Affidavits Declarations or affidavits to the Court are difficult to write as an attorney because you are essentially telling another’s story to the Court, which can be fraught with your client’s emotional spin. Clients will frequently conflate their facts within their recitation to you of events. You need to sort it out in a simple and clear way for the Court. The first section of a declaration or affidavit is the Procedural facts or Background facts. This is intended for the Court or reader to easily and quickly understand what has happened to date in the matter. Give a simple timeline in your Procedural or Background facts. Give a chronology of only procedural events and orders such that upon reading it the Court has a complete understanding of the case from its inception. It is very helpful to start each sentence or paragraph with a bold date followed by the procedural event

and subsequent order, if applicable. Give all events and orders up to the date of filing. Do not argue in this section. Way too often I see attorneys inserting argument in this section, which defeats the purpose of providing a concise and objective understanding of the matter. Next, decide on your headings and subheadings and insert them into your draft with different formatting. For example, you might make your headings bold, capitalized and underlined, and sub-headings sentence case and italicized. Doing so alerts the reader to what you are wanting to discuss next and what subcategories there are to consider in support of your client’s request. The first sentence of the first paragraph under every heading should only specify the client request related to that heading. As an example, if I were writing a declaration related to my client wanting to appoint an Evidence Code Section 730 expert, my heading would be “Appointment of Evidence Code Section 730 Expert” and my first sentence underneath would state in a direct and simple manner “I request the appointment of a forensic accountant under Evidence Code Section 730 for the purpose of valuing the corporation currently in dispute, XYZ Corporation.“ Your next paragraph would then begin making your first argument in support of your request, and each paragraph thereafter being arguments or statements with supporting documentation by exhibits to the initial request. This same format should follow with sub-headings. Finally, it is very helpful to the Court or reader to provide a summary of your requests. Many judges have noted to me how helpful my client’s declaration summary is to them after reading the entire

declaration. My summary has a separate format in that the heading “Summary” is centered followed by left registered bullet points with italicized bold font. All the first sentence requests for each paragraph with the most potent arguments in support are summarized at the end of the declaration. The summary requests are very synthesized. The bold font format and style help to remind and concisely identify to the Court what orders are being requested and why. One other tip to make all your writing clean is to avoid using the word “that.” It is grossly overused and if you eliminate “that” from all sentences it is not required, you will be astonished at how clean your sentence reads. It is so easy to do a “find” search on the word “that,” read the sentence without “that” and, if it is unnecessary, delete it. Eventually, you will become painfully aware every time you type in the word “that” and check the necessity of the word as you draft. Last Tip When drafting correspondence, try to start each letter with the purpose of the letter. All too often, it is hard to discern why an attorney is writing you on a case until you are halfway through their letter. Learn to be blunt in your letters to counsel. If you tell the reader the purpose for the letter in the first paragraph, complete your purpose very directly in the body, complete with headings and sub-headings, then ask for a timely response, preferably a specific date and time in bold font, you should be understood with great clarity and appreciated for your bluntness. GOOD LUCK! Jane Wesley Brooks is owner and family law attorney with JWB Family Law.

May/June 2019 SAN DIEGO LAWYER 41

LOOKING BACK:

JUDGE e. SWIFT TORRANCE sr. (The SDCBA turns 120 this year. This biosketch is part of a look back at prominent members of the Bar during its origin year of 1899.)

n late 1887, Elisha Swift Torrance abruptly resigned his judicial position in Kansas and moved to San Diego, joining up with Moses A. Luce and J. Wade McDonald to form the law firm of Luce, McDonald & Torrance. By the time the Bar Association was established in 1899, Torrance had been sitting on the Superior Court bench for nine years, as one of three judges on that court. Torrance served 18 years on the San Diego Superior Court bench before going back into private practice. By all accounts — gushing and glorious testimony — he was “one of the brightest ornaments of the Bar.” (Part of a long in memoriam by the Cowley County (Kansas) Bar Association). But there is much more, both before and after Judge Torrance’s time in San Diego. Hugh Torrance, Judge Torrance’s grandfather, fought in the Revolutionary War; Judge Torrance fought in the Civil War, having enrolled as a corporal for the Pennsylvania Volunteer Infantry at the age of 16, and Judge Torrance’s grandson (E. Swift Torrance III) fought and died in World War II. Judge Torrance’s father was a Presbyterian minister in Pennsylvania. His mother, Eliza Graham Torrance, is his likely namesake (Eliza to Elisha; he had a brother named Eli, to complicate things). After the war he left Pennsylvania for Kansas, where he studied law under the guidance of a prominent attorney before being admitted to the Kansas Bar in 1871 at age 25. Oddly enough, before being admitted to the Bar, he was elected County Attorney of Cowley

42 SAN DIEGO LAWYER May/June 2019

the 13th District, abruptly resigning for his quick (swift?) move to San Diego in 1887. Why the move to San Diego? San Diego County Law Library Librarian (1951-71) Leland Stanford’s profile of Torrance in his book San Diego Legal Lore and the Bar, says Torrance “made what he deemed a necessary move to San Diego.”

Image courtesy of the San Diego County Law Library

County, Kansas in 1870 for a two-year term, and re-elected for another term. He left for the big city, St. Louis, in 1875, but had been so well-loved by the members of the Cowley County Bar that they adopted a special resolution regretting Torrance’s move, calling him “so able and eminent in his profession, so urbane and gentlemanly in his deportment, so noble and generous in his instincts, so honorable in his transactions, so incomparable in his integrity … .” They probably jinxed him, as his health failed him in St. Louis, and he went nearly blind for a year, forcing him to temporarily quit the law. He regained his health and eyesight and came back to Cowley County in 1876, served another term as County Attorney and in 1881 was elected twice as judge of

As noted above, Torrance was on the bench in San Diego for 18 years. In his biography of Torrance, Stanford quotes F. S. Jennings, a lawyer who knew Torrance in Kansas, and became sheriff for the County of San Diego, who said that Torrance “had the greatest legal mind of which I have any personal knowledge …During my eight years’ incumbency of the office of Sheriff of San Diego County, I had a much better opportunity than when engaged in the practice of law before him, to accurately appraise his qualities as a presiding judge, for many important and intricate cases were tried during that time, at which I was present. In some instances noted counsel from other localities and states, often of national repute …pronounced Judge Torrance the most capable trial judge they had ever appeared before.” In the central law library files on Torrance is a handwritten note by Stanford dated March 27, 1967, discussing a telephone call he had with attorney (and past Bar President) Arthur Wright. It says: “Arthur Wright just told me over the phone that early one morning he went to work — Union Building — and met Judge Torrance in the hall. Wright: Well, Judge, I guess I beat you to work this morning. Torrance: The hell you did. I’m just going home.”

Judge Torrance and his wife, Virginia Stewart Torrance, had three daughters and a son. The son, Elisha Swift Torrance Jr., was born in 1881, and when he moved with his family to San Diego, he schooled locally and passed the Bar in 1906 (the year his mother died). E. Swift Torrance Jr., who practiced in San Diego until his death in 1948, was also a well-respected member of the Bar. He served as President of the Bar Association of San Diego for 1917-18 and was one of the original incorporators and directors of the Lawyers Institute of San Diego (which in 1922 joined with the Bar Association of San Diego to form the present-day San Diego County Bar Association). He lived in his father’s shadow a bit, until Torrance Sr. passed away in 1926. Said Stanford in his piece on E. Swift Torrance Jr.: “Upon [Torrance Sr.’s] death in 1926 his mantel of greatness descended upon the young Elisha much as recounted concerning an earlier Elisha by Jordan’s stream in the Fourth Book of Kings.”

Meet Your

Bar-ista SDCBA Staff Serving our Members

CYNTHIA C. DAVIS Accounting Coordinator What are your main responsibilities at the Bar? My mom says to smile and look pretty. Lol! But in all seriousness, my main responsibilities include collecting the money and paying the bills. Of course,

A review of the Torrance family genealogy finds a divergence in the spelling of the family name, to “Torrence” with an "e." Stanford, who came to San Diego in 1906 and was good friends with Torrance Jr., claimed that Torrance Jr. moved to Torrence Street in San Diego, a street that was named after his father but misspelled by the sign maker. E. Swift Torrance IV, now 76 and living in Laguna Beach, recalls visiting that San Diego house but does not believe the street sign was misspelled. (A current street directory check shows it as Torrance Street with an “a”, but it makes for a fun antidote). Also of note in the genealogy department is that there is the City of Torrance in Los Angeles County. That City was established by Jared Sidney Torrance, who is of no relation to the Torrance families of Pennsylvania/Kansas/San Diego. Jared Torrance came from New York to Pasadena, and eventually founded the city named in his honor. Here’s the kicker:

there are some billing and room rental reservation tasks that get clumped into the process. How long have you been working at the Bar? I’ve been working at the Bar for three years. My first day as a temp was, April 18, 2016. What is your favorite part of your job? The most favorite part of my job is being able to use the same tasks and responsibilities used day in and day out to hone my skills not only for work but also for the nonprofit organization that I volunteer for, which is very near and dear to my heart. Another favorite part of my job is having the opportunity to meet some of the SDCBA members who frequent the Bar Center, those who I’ve had the pleasure of dealing with on a one-on-one basis. Personally, they have helped to change some of the ideas and conclusions that had been drawn about law professionals. I’ve met some really down-to-earth attorneys, some who I can truly say I’m honored to be considered as a friend. What is your favorite movie and why? It’s really hard for me to say what is my favorite movie, but if I had to choose, it would be The Five Heartbeats. This movie is one of a very small collection of movies that

Jared Torrance came to Pasadena from the East Coast in 1887, the same year E. Swift Torrance Sr. abruptly headed to San Diego. E. Swift Torrance IV, who is a real estate agent in Laguna Beach (and goes by Swift Torrance) had no interest in pursuing the law, even after his grandmother offered to pay for all schooling and expenses. Swift, known to his family as “Speed,” has a son (E. Swift Torrance V), who goes by “Skip” and is in banking. In a call to Swift/Speed, he confirmed a news account that he had sold a house in Laguna Beach to O.J. Simpson, who bought it for his then new bride, Nicole. But that is another story. George W. Brewster Jr. (sandbrews@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.

I’ve had no qualms with watching over and over again. All of those who really know me, know that I DO NOT like to watch reruns. It’s simply because I have a hard time justifying the use of spending valuable time to watch something that I’ve already seen that isn’t directly related to bettering myself or my loved ones; especially for no other reason but for entertainment. However, this movie is one of the most popular and enjoyed movies among my family, friends and even peers. It’s that one movie where almost everyone knows the lines. Hands down, it is one of Robert Townsend’s best musical drama scripts that was birthed during a time in my life that I’ve come to appreciate the most. What’s your favorite quote? My favorite quote is: “When someone shows you who they are, believe them the first time.” — Dr. Maya Angelou What do you love about San Diego? Although San Diego is one of the best cities to live in the United States — the weather, access to the ocean and there’s plenty for everyone to do — what I love the most about San Diego is that it’s close to home (within hours away), but not so close I that I get unexpected or uninvited visitors (wink, wink). May/June 2019 SAN DIEGO LAWYER 43

SAVE THE DATE

2019 SIGNATURE EVENTS ANNUAL SUMMER SOCIAL SERIES JUNE 26, JULY 10 & JULY 18

The Downtown event features live music and a casual vibe. The North County event takes place at a restaurant/bar venue convenient for those that practice north of Carmel Valley. The Summer Picnic is a fun, family-friendly event held in Balboa Park. The Summer Picnic is a New Lawyer Forum event open to all SDCBA members. North County Event - June 26 Downtown Event - July 10 Dog Days of Summer Picnic - July 18

ANNUAL BENCH-BAR LUNCHEON SERIES SEPTEMBER/OCTOBER This events brings together attorneys and judicial officers to discuss issues of mutual interest. The 4 luncheons span multiple regions and specialties. Juvenile Law - September 11 North County - September 18 Family/Probate Law - October 2 Civil/Criminal Law - October 16

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

FOR RICHER OR POORER, IN SICKNESS AND IN HEALTH:

FOR THE LOVE OF PETS By Julie O. Wolff

“No matter how close we are to another person, few human relationships are as free from strife, disagreement, and frustration as is the relationship you have with a good dog. Few human beings give of themselves to another as a dog gives of itself. “ — Dean Koontz, A Big Little Life: A Memoir of a Joyful Dog Americans love their pets. Each year, we celebrate National Pet Day on April 11. A 2015-2016 study estimates about 65% of United States households own at least one pet1. That same study estimated the number of pets in the United States at 163.6 million.2 “Americans spend over $50 billion per annum on pets.”3 The average household spends over $1,000 per pet per year on veterinary care.4 In fact, owners are so attached to their adopted family members, 27% have professional photographs of their pets, and over one-third of owners give their dogs birthday gifts.5 Nine out of 10 pet owners consider their pets family members.6 To some, the closest thing to a perfect partner is their dog or cat. However, in most instances, the law considers animals to be personal property, also known as a “chattel.” 7 A chattel cannot be a party to a court action because personal property has no standing in court. In the eyes of the law, a killed or mutilated animal can be reduced to a dollar amount in a civil case by comparing the financial value of similar personal property. In the justice system, “Cases involving animal cruelty are currently handled by the traditional criminal courts” where the end result is often short sentences in juvenile hall or jail, fines and/or probation,8 despite recent efforts of prosecutorial agencies to charge animal abuse as felony behavior and efforts of the legislature to adopt laws making animal abuse a felony.9 CEO and Director of People’s Legal Services, Anthony Medina, believes, "(m)ost pet owners

realize that the old notion of 'pets as property' isn't appropriate anymore. I like to remind clients there are studies that confirm that pets' intelligence is sometimes on par with two-to-three-year-old children." Within that framework it's easy to both outline and expect time share/ownership agreements that are dispassionate and reasonable in pet custody cases. Times are changing. In 2018, Family Law Courts in California began treating household pets a little more like children than property, with the implementation of CA Family Code Section 2605: (a) The court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may enter an order, prior to the final determination of ownership of a pet animal, to require a party to care for the pet animal. The existence of an order providing for the care of a pet animal during the course of proceedings for dissolution of marriage or for legal separation of the parties shall not have any impact on the court’s final determination of ownership of the pet animal. (b) Notwithstanding any other law, including, but not limited to, Section 2550, the court, at the request of a party to proceedings for dissolution of marriage or for legal separation of the parties, may assign sole or joint ownership of a pet animal taking into consideration the care of the pet animal.10 With the new law, family judges must consider the care the animal would receive from each parent, if the pet is community property (absent a prenuptial or postnuptial agreement). Just as judges assign sole or joint custody of a child, the judge can do either for pet custody. However, CA Family Code Section 2605 does not differentiate between “physical” and “legal” custody of a pet. The Code can be interpreted that for pets, physical and legal

www.humanesociety.org (last visited July 2, 2017) www.humanesociety.org (last visited July 2, 2017) 3 https://www.petsecure.com.au/pet-care/a-guide-to-worldwide-pet-ownership/ (last visited July 2, 2017) 4 www.humanesociety.org (last visited July 2, 2017) 5 https://www.petsecure.com.au/pet-care/a-guide-to-worldwide-pet-ownership/ (last visited July 2, 2017) 6 https://www.petsecure.com.au/pet-care/a-guide-to-worldwide-pet-ownership/ (last visited July 2, 2017) 1 2

custody are one in the same, unlike physical and legal custody for children. This consideration of care, is analogous to a family judge’s requirement to consider the “best interest of the child” in custody proceedings. Thus, the Court can and should take into consideration which spouse has proven the better ability to meet the medical and emotional needs of the animal. Pets age seven years for every one year a human ages. Thus, a showing of routine medical and dental care should be seven times more important for a judge to consider for a pet than a child. Care can be proven by payment of medical bills, proof of taking the pet to regular medical checkups, ensuring the pet receives proper dental care and teeth cleanings, buying food for and feeding the pet, and/or spending quality time with the pet. The moral of this article is to include your valued pet among your most valuable items. If you have a pet before entering a marriage, consider clearly establishing custody of the pet in a premarital agreement as your separate property. If you plan to acquire pets during the marriage, why not plan ahead of time who will keep the pet? Also, if you and your significant other get a pet together before marriage, decide who will keep the pet should you separate, and get that agreement in writing in the form of a pre-marital agreement. To couples everywhere, pets are diamonds in the “ruff.”

Julie O. Wolff (julie@jwolfflaw.com) is owner of the Law & Mediation Office of Julie O. Wolff.

Caroline Forell, Using a Jury of Her Peers to Teach About the Connection Between Domestic Violence and Animal Abuse, 15 Animal L. 53, 68 (2005) 8 Caroline Forell, Using a Jury of Her Peers to Teach About the Connection Between Domestic Violence and Animal Abuse, 15 Animal L. 53, 68 (2005) 9 https://fox5sandiego.com/2019/01/28/congressmen-propose-bill-that-would-makeanimal-cruelty-a-felony-in-the-u-s/ (last visited April 22, 2019) 10 Ca fam. code section 2605(a)(b) 7

May/June 2019 SAN DIEGO LAWYER 45

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

Sergio Feria

Gerald S. Mulder

Doc Anthony Anderson

James P. Frantz

Raymond J. Navarro

Judy S. Bae

Matthew David Freeman

Anthony J. Passante Jr.

Victor E. Bianchini

Douglas A. Glass

Teodora D. Purcell

Jedd E. Bogage

Richard A. Golden

Kristin E. Rizzo

James A. Bush

Alvin M. Gomez

Ana M. Sambold

Jose S. Castillo

Anthony Hawkins

Thomas P. Sayer

Andy Cook

Van E. Haynie

Johanna S. Schiavoni

Steven T. Coopersmith

Matthew C. Hervey

Richard S. Sterger

Ezekiel E. Cortez

Stephen M. Hogan

Todd F. Stevens

Thomas M. Diachenko

Richard A. Huver

Kimberly Swierenga

John A. Don

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

Thomas J. Warwick

William O. Dougherty

Don S. Kovacic

Andrew H. Wilensky

Alexander Isaac Dychter

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

Anthony J. Gizzarelli

Anne Perry

Steven Barnes

Ronald Leigh Greenwald

Kristi E. Pfister

Linda Cianciolo

Mark Kaufman

Stella Shvil

David B. Dugan

Marguerite C. Lorenz

Clay Spiegel

Thomas Fitting

Mary Beth Martin

Susan K. Fox

Christine Murphy

Distinctions

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

Alex Calero of the California Department of Business Oversight was elected chair of the Public Law Section of the California Lawyers Association (CLA).

SDCBA STAFF ANNOUNCEMENT Ron Marcus is the new Director of Marketing and Outreach for the SDCBA. Ron has been working in branding and marketing communications for 30 years. Ron has deep expertise in brand and marketing strategy, messaging, copywriting and website architecture. He is a true multi-disciplinarian with a combination of big-picture thinking and tactical execution. Ronâ&#x20AC;&#x2122;s forte is helping both new and established organizations develop and align their mission, culture and brand, then create and execute winning strategies. Ron has worked with a wide variety of B2B companies in diverse industries and has also helped a number of nonprofits optimize their branding and their marketing programs. Ron is an accomplished presenter and facilitator, voice over artist, musician and martial artist. When heâ&#x20AC;&#x2122;s not working, Ron plays in bands, teaches karate, and volunteers. He is a Southern California native and has called San Diego home since 1985. He lives with his wife Galina and their two cats, Sam and Toby.

ADVERTISERS INDEX ADR Services, Inc...................................................................27

Monty McIntyre, Esq............................................................................27

AHERN Insurance...................................................................4

Noonan Lance Boyer & Banach LLP........................................13

CaseyGerry.................................................................................3

Panish Shea & Boyle...............................................................................52

JAMS..............................................................................................20

Richard Duquette..................................................................33

Judicate West...........................................................................10 LawPay.........................................................................................16 Lawyer Referral & Information Service.........................34 Law Office of Steven C. Vosseller.................................8

Summer Social Series Welcome to the Summer of Fun! Mingle with friends old and new while enjoying great food and beverages at our Downtown and North County events, and bring the whole family for fun in the sun at our new picnic in the park. SPONSORED BY:

INSURING LAW FIRMS ONE POLICY AT A TIME

San Diego County Bar Foundation ......................................38 USClaims.....................................................................................2 West Coast Resolution Group........................................20 White & Amundson...............................................................14

SUMMER SOCIAL DOWNTOWN

DOG DAYS OF SUMMER PICNIC

June 26 5:30 - 7:00 p.m.

July 10 5:30 - 7:00 p.m.

July 18 5:30 - 7:00 p.m.

Mother Earth Brewing Company 206 Main St. Vista, CA 92084

Waterfront Park, Downtown 1600 Pacific Hwy, San Diego, CA 92101

Balboa Park 1549 El Prado San Diego, CA 92101

SUMMER SOCIAL NORTH COUNTY

sdcba.org/ncsummersocial

PRESENTED BY NEW LAWYER FORUM

100

LUB

EN PERC T C 2019

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 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 JWB Family Law Klinedinst PC Koeller Nebeker Carlson & Haluck LLP Konoske Akiyama | Brust LLP Law Offices of Beatrice L. Snider, APC Legal Aid Socitey 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, McCabe & Hudson APLC Niddrie | Addams | Fuller I Singh LLP Noonan Lance Boyer & Banach LLP Office of the Public Defender Office of the San Diego City Attorney

Paul, Plevin, Sullivan & Connaughton LLP Pettit Kohn Ingrassia Lutz & 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 Selman Breitman, 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 Rez & Engel, APLC Thorsnes Bartolotta McGuire LLP Tresp Law, APC Walsh McKean Furcolo LLP Wilson Elser Moskowitz Edelman & Dicker LLP Wilson Turner Kosmo LLP Winet Patrick Gayer Creighton & Hanes Wingert Grebing Brubaker & Juskie LLP Wirtz Law APC Witham Mahoney & Abbott, LLP Withers Bergman LLP Wright, L’Estrange & Ergastolo

PHOTO GALLERY ANNUAL AWARDS LUNCHEON AND CELEBRATION OF COMMUNITY SERVICE Photos by Douglas Gates Photography Friends and colleagues gathered to recognize the SDCBA’s 2019 Service Award recipients and celebrate giving back during the Association’s Annual Awards Luncheon and Celebration of Community Service on May 1. Thank you to our event sponsor Ahern Insurance Brokerage.

Hon. Dana Sabraw, Summer Stephan

Lilys McCoy, Alara Chilton

Peter Quon Jr.

L-R: Valeria Ramirez, Hon. Barry Ted Moskowitz, Carolina Hernandez Equihua

Hon. Joan Weber

L-R: Christine Probett, Spencer Scott, Kimberly Swierenga Christina Selder, Chris M. Murphy

Chalres Bell Jr.

James Koerber

Brigid Campo

Jason Sheinberg

May/June 2019 SAN DIEGO LAWYER 49

PHOTO GALLERY PHOTO GALLERY ANNUAL BENCH-BAR RECEPTION Photos by Douglas Gates SDCBA Members and San Diego judicial officers mingled at the Association’s annual Bench-Bar Reception on March 26. Thank you to event sponsors Antonyan Miranda, AbacusNext, LawPay, Judicate West and The Valdez Team.

L-R: Richard Huver, Heather Rosing, Hon. Marcella McLaughlin, Kristin Rizzo, Hon. Loren Freestone, Jerrilyn Malana, Hon. Daniel Link

L-R: Kristin Rizzo, Jill Epstein, Lilys McCoy

Hon. Timothy Casserly

Larry Campitiello, Anna Romanskaya

THE LEGACY OF MATTHEW SHEPPARD On April 10, the SDCBA, the Tom Homann LGBT Law Association, and the Earl B. Gilliam Bar Association were proud to welcome Judy Shepard for a talk entitled, “The Legacy of Matthew Shepard.” Ms. Shepard shared with us her insights on her journey as Matthew Shepard’s mother and the passage of the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act of 2009. Michelle Chavez, Judy Sheppard

50 SAN DIEGO LAWYER May/June 2019

Lilys McCoy

MEMBER BENEFITS Your SDCBA membership offers you a wide variety of member-only benefits and discounts from the following providers:

w Practice Management Partners

DISCOUNTS embership offersINSURANCE you a wide variety of member-only s and discounts from the following providers: INSURANCE DISCOUNTS INSURING LAW FIRMS ONE POLICY AT A TIME

Preferred Provider Discounts on a full line of coverage for your practice including XL Catlin, The Hartford, and Berkley Insurance Company.

PRACTICE MANAGEMENT INSURING LAW FIRMS ONE POLICY AT A TIME

Preferred Provider PRACTICE MANAGEMENT Special rates for cloud-based case & matter management software

Receive 7% off Ruby’s virtual receptionist service.

Cloud-based legal practice management system for solos and small firms.

Save 10% on Abacus fully managed technology solutions. .

FINANCIAL SERVICES

FINANCIAL SERVICES Torrey Pines Bank is the go-to banking resource for San Diego law firms, attorneys and the SDCBA.

Credit card processing developed specifically for attorneys and law firms.

OFFICE SUPPLIES & SERVICES OFFICE SUPPLIES & SERVICES

Save up to 30% off the web price of Lenovo PC products.

10% off Office Depot’s web price on over 30,000 office supplies.

Save up to 40% with the UPS® Savings Program for SDCBA members

LIFESTYLE

Auto insurance discounts.

PUBLICATIONS

Save when you park at the lot at Union and B Street

Receive an exclusive rate on rooms at the Hotel Rebublic San Diego Downtown.

Discounted rental rates for business or pleasure travel.

PUBLICATIONS

15% discount on thousands

WELLNESS of books and periodicals available from the ABA.

Daily newsfeed with practice specific, global, national and local news.

Learn more about exclusive offers from the providers above at

www.sdcba.org/memberbenefits

re about exclusive offers from the providers above at

ww.sdcba.org/memberbenefits

R E F E R R A L S T H AT

REALLY PAY OFF OVER $2 BILLION IN VERDICTS AND SETTLEMENTS SINCE 2010

PANISH SHEA & BOYLE

LLP

OVER $200 MILLION IN REFERRAL FEES PAID SINCE 2010

OFFICES IN CALIFORNIA AND NEVADA The attorneys of Panish Shea & Boyle LLP have obtained some of the most significant verdicts and settlements in U.S. history. With 20 eight-figure and nine-figure verdicts in the last 10 years, no other California or Nevada plaintiff’s firm wins this big, as often, as Panish Shea & Boyle LLP.

The Firm has the resources, experience and skills to litigate the most complex cases for individuals and families who have suffered an injury or death because of the wrongful acts of others and handles cases throughout the country. Firm attorneys are licensed in many states and the firm welcomes joint ventures with lawyers who want to stay more actively involved in a case.

WE MAXIMIZE THE RECOVERY TO OUR CLIENTS, WHICH MAXIMIZES THE REFERRAL FEE TO YOU.

EXPERTISE • Wrongful Death • Catastrophic Personal Injury • Defective Products • Trucking Accidents • Motor Vehicle Accidents • Industrial Accidents • Dangerous Conditions • Aviation & Railway Disasters • Government Liability • Brain & Spinal Cord Injuries • Automotive Defects