San Diego Lawyer September/October 2019

Page 1

®® ® SEP/OCT 2019

EDUCATION

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CONTENTS COLUMNS 8

11

12 Page

17

14 43

PRESIDENT'S COLUMN Legal Education: The Journey and Its Pitfalls by Lilys McCoy DEANS The Changing Landscape of Legal Education by Linda M. Keller ETHICS Different Folks, Different Strokes by Edward McIntyre TECHNOLOGY Is AI the New 'Snake Oil'? by Bill Kammer SAN DIEGO LAW LIBRARY Tribal Justice Film Screening

43

WHAT TO DO WHEN... Your Client Constantly Calls by Christine Pangan

45

WHY I BELONG Get to know SDCBA member Michael Burke

45

MEET YOUR BAR-ISTA Hector Jimenez LRIS Service Specialist/ Modest Means Coordinator

47

DISTINCTIONS AND PASSINGS

51

PHOTO GALLERY

34

10 TIPS FOR SUCCESSFUL CO-COUNSELING by Sasha Kamfiroozie and James D. Crosby

FEATURES 17 33

DON'T GEOFENCE ME IN by Devinder Hans

THE BORDER CRISIS: HELPING MIGRANTS RECEIVE ACCESS TO JUSTICE by the San Diego County Bar Foundation

39

LOOKING BACK:

NELSON HILAND DODSON by George W. Brewster Jr.

Page

20

EDUCATION

20 22

24

WHAT LAW STUDENTS NEED TO ‘BE SUCCESSFUL’ by Renée Stackhouse BORDER MYTHS SYMPOSIUM by Sofia De La Rocha and Tandis Taghavi

27 30

THE LOAN ROAD TO FORGIVENESS by Brian Keliher COLLEGE ADMISSIONS SCANDAL: ARE WE SURPRISED? by Jeremy M. Evans

THE CALIFORNIA BAR EXAM: MORE BAR THAN EXAM? by Catherine Ferguson

Page

34

SAN DIEGO LAWYER | September/October 2019 5


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

GENEVIÉVE JONES-WRIGHT ONE BEAT AT A TIME

Geneviéve Jones-Wright is a founding board member of The David’s Harp Foundation, a nonprofit inspiring, educating, and empowering homeless and “at-risk” youth since 2009. Named after the Biblical story of David playing his harp to soothe a king’s torment, David’s Harp Foundation uses music to mentor youth. At its state-of-the-art music studio in East Village, DHF offers free studio recording time, audio engineering training, media production training, and mentorship in exchange for good grades and behavior. DHF instructors mentor more than 300 youth each year. DHF students increased their GPA’s 16.9%. Geneviéve has been a central figure as DHF expanded its work to serve youth affected by incarceration and the foster care system. “My greatest joy is watching the change in our students’ life trajectories. It’s amazing to see them transcend negative experiences - just because someone cared enough to invest in them." To learn more or donate, visit www.davidsharpfoundation.org After 13 years as a public defender, Geneviéve now serves as Legal Director for Partnership for the Advancement of New Americans (PANA). Geneviéve Jones-Wright is not affiliated with the Vosseller Law Firm.

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

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

858-429-4062 www.vosslawyer.com

VOSSELLER LAW FIRM


®® ®

Issue 5, September/October 2019 Co-Editors Edward McIntyre

Christine Pangan

Editorial Board Hali Anderson

Seth Garrett

Hon. Duane Moring

Elizabeth Blust

Devinder Hans

Michael Olinik

George W. Brewster Jr. Whitney Hodges

Renée Stackhouse

James D. Crosby

Julie Houth

Tandis Taghavi

Jeremy M. Evans

Anne Kammer

Julie Wolff

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

Publications and Content Coordinator Hailey Johnson

Graphic Designer Attiba Royster

Marketing Manager Sasha Feredoni

Issue no. 5. 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 ­reserved. 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. Interested contributors may submit articleideas 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 ™ 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.

401 West A Street, Suite 1100, San Diego, CA 92101 Phone (619) 231-0781 Fax (619) 338-0042

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Statement of Ownership, Management and Circulation (required by 39 U.S.C. 3685). 1. Publication title: San Diego Lawyer. 2. Publication number: 1096-1887. 3. Filing date: 10/1/2019. 4. Issue frequency: Bimonthly. 5. Number of issues published annually: 6. Annual subscription price: $50.00. 7. Complete mailing address of known office of publication: San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, San Diego County, CA 92101. 8. Complete mailing address of headquarters or general business office of publisher: San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. 9. Full names and complete mailing addresses of publisher, editor and managing editor. Publisher: Jill Epstein, 401 West A Street, Suite 1100, San Diego, CA 92101. Editor: Ron Marcus, 401 West A Street, Suite 1100, San Diego, CA 92101. Managing Editor: Ron Marcus, 401 West A Street, Suite 1100, San Diego, CA 92101. 10. Owner: San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. 11. Known bond holders, mortgagees and other security holders owning or holding 1 percent or more of total amount of bonds, mortgages or other securities: None. 12. Tax Status: Has Not Changed During Preceding 12 Months. 13. Publication title: San Diego Lawyer. 14. Issue date for circulation data below: 01/09/2018— 01/07/2019. 15. Extent and nature of circulation: Membership/ Trade Publication. a. Total no. of copies. Average no. copies each issue during preceding 12 months: 6,770. No. copies of single issue published nearest to filing date: 6,135. b. Paid circulation. (1) Mailed outside-county mail paid subscriptions stated on Form 3541. Average no. copies each issue during preceding 12 months: 264. No. copies of single issue published nearest to filing date: 217. (2) Mailed in-county paid subscriptions stated on Form 3541. Average number copies each issue during preceding 12 months: 6,5047. No. copies of single issue published nearest to filing date: 5,917. (3) Paid distribution outside the mails including sales through dealers and carriers, street vendors, counter sales and other paid distribution outside USPS. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (4) Paid distribution by other mail classes through the USPS. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. c. Total paid distribution. Average no. copies each issue during preceding 12 months: 6,768. No. copies of single issue published nearest to filing date: 6,134. d. Free or nominal-rate distribution. (1) Outside-county copies included on Form 3541. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (2) In-county copies included on Form 3541. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (3) Not applicable. (4) Free or nominal-rate distribution outside the mail. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. e. Total free or nominal-rate distribution. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. f. Total distribution. Average no. copies each issue during preceding 12 months: 6,768. No. copies of single issue published nearest to filing date: 6,134. g. Copies not distributed. Average no. copies each issue during preceding 12 months: 133. No. copies of single issue published nearest to filing date: 50. h. Total. Average no. copies each issue during preceding 12 months: 6,901. No. copies of single issue published nearest to filing date: 6,184. i. Percent paid. Average no. copies each issue during preceding 12 months: 100%. No. copies of single issue published nearest to filing date: 100%. 16. Electronic copy circulation: Not applicable. a. Paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. b. Total paid print copies + paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. c. Total print distribution + paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. d. Percent paid. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. 17. Publication of Statement of Ownership for a general publication is required and will be printed in the 01/09/2019 issue of this publication. I certify that all information furnished is true and complete. Jill Epstein, Executive Director, San Diego County Bar Association


President’s Column by Lilys McCoy

LEGAL EDUCATION: THE JOURNEY AND ITS PITFALLS

A

former law school dean once told me that the

the difficulty of working with people during what may be

first year of law school is unique, the best that

the worst period of their lives. These disclosures would

American graduate education has to offer.

also include a discussion of the volume of work and the

The comment caused me to pause, in part I am sure,

unrelenting pace required to complete some, but not all

because there was nothing great about my first year

the work. Never all the work.

of law school. To me, it was a grind punctuated by moments of terror. But, as I reflected on the great gifts

The excellent letter by Abraham Lincoln to John M.

I received from having a trained and practiced legal

Brockman concerning the study of law says it well. It

mind, I realized that there was wisdom in his comment.

begins: "Dear Sir: Yours of the 24th. asking 'the best

I recalled what I knew from talking to friends who had

mode of obtaining a thorough knowledge of the law' is

chosen medical school, master’s degree programs, and

received. The mode is very simple, though laborious,

doctoral studies. I could not remember any of them

and tedious. It is only to get the books, and read,

describing a one-year baptism in the fundamentals of

and study them carefully. Begin with Blackstone's

their chosen field that also, in an almost alchemistic way,

Commentaries, and after reading it carefully through,

changed the way they thought and observed the world.

say twice, take up Chitty's Pleading, Greenleaf's Evidence, & Story's Equity &c. in succession. Work,

As profound and life changing as a rigorous legal

work, work, is the main thing." The Collected Works of

education can be, much has been written about the

Abraham Lincoln, edited by Roy P. Basler, Volume IV,

need to warn prospective law students that there

Letter to John M. Brockman (September 25, 1860), p. 121.

are serious economic risks to law school in the 21st Century. The American Bar Association Section on Legal

Work, work, work is the main thing. Now that is a

Education has Standard 509, which requires law schools

disclosure that rings true to me. What we do is hard.

to publicly disclose information about admissions data,

None of it can be accomplished with a lick and a

tuition and fees, living costs, financial aid, conditional

promise. Even a seemingly easy task can entail tricky

scholarships, enrollment data, employment outcomes,

details which turn into a three-hour task before you even

and bar passage data. While such disclosures are

realize you have missed dinner once again. To read the

important, I have come to believe that the list is

books and study them carefully, as Lincoln admonished,

incomplete. There is a set of disclosures having to do

can be all-consuming.

with the realities of practice that students should hear before deciding to attend law school. These disclosures

Of course, it’s also an amazing profession. Prospective

would include a discussion of the sheer difficulty of the

law students need to know that a career in law can be

work — the tedium, the stress, the solemn responsibility

an incredible journey filled with meaning and purpose.

for the lives and fortunes of our clients and their families,

As I have matured in the law, I have come to feel an

8 SAN DIEGO LAWYER | September/October 2019


overwhelming sense of gratitude that I get to do

I would also love to see more coordinated post-

important work that is intellectually challenging.

graduate training. In Canada, for example, law graduates are required to "article" before they can be

I love being able to put my hands on the wheels and

"called to the bar." These law grads must find a law firm

the gears of government (h/t Sacramento lawyer

to hire them and train them for one year. Law firms, in

Jay-Allen Eisen). I love when I truly and directly help

turn, are expected to hire law graduates and train them.

someone. The help that we provide affects not only our

Only some law jobs in the U.S. provide concentrated

clients, but our clients’ families and can improve not

training in the first few years, and there is not a lot of

only their lives, but the lives of future generations. If

evidence that they do so in a consistent or standardized

you are drawn to the law, nothing else will satisfy.

way. Many believe that post-graduate training for U.S. lawyers comes down to this: if you are lucky enough to

Disclosures aside, I believe that we as a profession,

find a good mentor, you will develop good habits. If not,

beginning with legal educators, should not only present

you will probably learn bad habits that will take years

the fact of the difficulty, but challenge and inspire

to undo. The profession can and should do better in

students to embrace that difficultly. For in that difficulty

training future officers of the court.

lies the satisfaction of an important job done well. The improvements in legal education over the last 30

What can we, as individual members of the Bar,

years, including greater opportunities for clinical work

do as legal education continues to add practice-

and internships, are terrific, but we can do even more.

ready curricula to its offerings? We can mentor. We can teach. We can invite a law student or new

For example, we could incorporate instruction from

lawyer to shadow us at court and then spend time

other disciplines on how to screen for clients suffering

debriefing what happened. We can create networks

from the effects of trauma. Casey Gwinn and Gael

of attorneys who can give opportunities to young

Strack of the Alliance for HOPE have done brilliant work

lawyers to, as they say in medicine, “see one, do one,

teaching the new solo practitioners in TJSL’s Center for

teach one.” In some cultures, it is said that children

Solo Practitioners how to recognize someone suffering

belong to everyone, meaning that everyone has

from trauma and how to provide trauma-informed

responsibility for the younger generation — to help

representation. They have also provided invaluable

keep them safe, but also to guide them and mentor

instruction on the effects of secondary trauma and how

them. I would love to see the legal profession adopt

all providers, whether medical, legal, first responders,

a similar attitude: that new lawyers belong to all of

etc., need to take care of themselves when they begin

us, that we all have a responsibility to the profession

to recognize that they have become affected by the

to mentor, support, and guide new lawyers, to, dare I

distress of others.

say it, be an extension of legal education.

My wonderful colleague at TJSL, Professor Judy

The SDCBA provides many avenues for experienced

Beth Tropp, incorporated these concepts into her

lawyers to help mentor new lawyers, such as adding

externship seminars for many years. I would love to

a willingness to mentor to our on-line SDCBA profiles,

see all law schools add instruction that goes in depth

volunteering to write for the New Lawyer periodical,

about the nuances of client relations. Those seminars

For the Record, and working to create excellent

could include guest lectures by social workers and

programming for our new lawyers. I encourage you to

other non-legal professionals who have training and

get involved in these ways, because new lawyers, the

experience in drawing boundaries and preventing

future of the profession, are not just the responsibility of

burnout while still providing ethical and excellent

law schools; they are the responsibility of us all.

customer service. We could also offer interdisciplinary instruction on how to focus in a distracting digital world, while learning how to unplug in a healthy way.

SAN DIEGO LAWYER | September/October 2019 9


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Deans By Linda M. Keller, Thomas Jefferson School of Law

The Changing Landscape of Legal Education

L

egal education is changing

leads to better, more durable

Co-curricular opportunities, such

rapidly. Gone are the days of

retention.” When students outline

as competition teams and law

pure Socratic method and

and cram at the end of a semester,

review, remain a vital part of legal

the all-important final exam. Today,

they have only short-term gains.

education, with an increasing

the best law school educators

Adding midterms and other periodic

focus on specialized fields of law.

employ a wide range of teaching

formative assessments enhances

For example, the National Sports

methods by drawing on learning

learning, as does interleaving —

Law Negotiation Competition

theory. The new range of practical

having students study multiple

brings teams from across the

skills and co-curricular programs

subjects at a time. Drawing on

country to negotiate current issues

better reflects the needs of legal

learning theory, Thomas Jefferson

being worked on by professionals

practice.

professors teach spaced learning in

in the sports industry. Since 2014,

orientation and reinforce it in first-

the Association of Business Trial

The best law professors understand

semester courses. The “1L Bar-Like

Lawyers San Diego has sponsored

the importance of learning theory

Experience” also shows students

a Mock Trial Tournament focusing

and metacognition. For example,

the efficacy of study methods by

on a business litigation issue.

at Thomas Jefferson, students

testing multiple subjects over two

are taught about metacognition

days. A curriculum that requires

Additionally, the venerable law

(thinking about thinking) at

students to revisit subjects covered

review continues to offer students

orientation. The incorporation of

in the 1L or 2L year leverages the

opportunities to hone their legal

metacognition and self-regulated

benefits of spaced retrieval.

writing, research, editing and

learning continues throughout

citation skills. Student notes

the curriculum. Rather than leave

Legal education has also

showcasing “true understanding

students in the dark until they see

changed to offer better practical

and mastery of the law” and

their final exam, teachers provide

skills training. Courses in legal

excellent writing are recognized

formative feedback and multiple

marketing tactics and solo

by the Burton Awards. Since 2000,

opportunities for low-stakes testing

practice management provide

the Burton Award for Distinguished

(quizzes, review exercises, in-class

students with more practice-ready

Legal Writing has been given

polling) throughout the semester.

skills. Clinical opportunities like

to students from law schools

This encourages students to reflect

Advanced Mediation, Nonprofit &

nationwide.

on their performance and test-

Business Law Clinic, Patent Clinic,

taking techniques.

Trademark Clinic and Veterans

Of course, law schools need

Legal Assistance Clinic allow

to evolve to keep up with the

Law schools are criticized for not

students to work with clients and

ever-changing demands of legal

making use of proven techniques

solve real-world problems under

practice. As Lilys McCoy notes

such as spaced retrieval. According

the supervision of an expert in the

in her President’s column, the

to a recent law review article,

field. Law schools also increasingly

challenges of legal practice are

spaced retrieval is effective because

offer post-graduation accelerators,

many. Legal education needs to

“(1) spacing out studying over

combining solo practice training

collaborate with the bar and bench

time enhances retention, and (2)

with public service, like the Center

to better position our students to

retrieving information from memory

for Solo Practitioners.

meet those challenges. SAN DIEGO LAWYER | September/October 2019 11


Ethics By Edward McIntyre

DIFFERENT FOLKS, DIFFERENT STROKES

J

essica and Brett are starting

“Interesting. Shall we explore some

that fee’s unearned. Correct?”

practice together. Today, they

ethical implications of a couple

will discuss potential billing

ideas?” Macbeth asked.

They nodded, tentatively.

Brett spoke again, “We’re wide-

“But how much?” Macbeth

open to suggestion. Before plunging

continued.

models with a senior attorney, Macbeth. “Congratulations,” Macbeth said.

ahead.”

“How can I help?”

Jessica asked, “How do we “Let’s start with the flat fee.”

deal with that?”

firms that charged exclusively by

Jessica explained, “It gives a client

“Consider having benchmarks in

the hour —”

certainty. Right from the start.”

your engagement agreement. At

“Actually,” Brett interrupted, “by

“I agree. Ethically, unless it’s a true

You and the client agree at the

six-tenths of the hour.”

retainer — what you describe isn’t

outset that portions of the fee

Jessica started. “We come from

least for all but the simplest task.

— you’ll have to put the funds in

are earned as you complete

“We’re exploring billing models

your client trust account. Unless

specific steps.”

that’ll make our services more

your client agrees in writing, after

affordable,” Jessica continued.

informed consent, that you don’t.”

“More flexible. For average people. Fewer can afford lawyers. But need

Sarah interrupted, “Of course, then you have to take those earned funds

“Informed consent?” Brett asked.

them more.”

out of your trust account. They’re now your funds.”

“Yes. You tell the client in writing Macbeth smiled. “Commendable.

that they can require you to put

Macbeth went on, “You mentioned

What do you have in mind?”

the funds in your trust account

a subscription plan. I’m intrigued.

and that the client gets refunded

Clients make periodic payments?

Jessica continued, “We’re

any unearned fees. Then the client

Get unlimited services? How do you

brainstorming several approaches.”

consents in writing.”

anticipate that working?”

“For example?”

“Who’d do that?” Jessica

“People are used to subscriptions.

questioned.

For all kinds of things — Netflix®,

“We’ve discussed flat fees for

Amazon Prime®. They budget,

specific tasks. Also guaranteed,

“Precisely. Likely few. So most flat

pay monthly fees and get access

not-to-exceed fees. And a monthly

fees will go into your trust account.”

to services they want. We thought

subscription plan — for unlimited services. A low hourly rate with

about offering something similar. “What’s ‘unearned’ mean?”

contingency — for certain kinds of litigation. Smorgasbord, really.”

Clients pay a small monthly fee. Get unlimited phone calls on

“Assume you accept a flat fee to

legal issues. Or emails. Or

draft a contract. Then the client fires

document review.”

you before you’re done. Some of 12 SAN DIEGO LAWYER | September/October 2019


“For every discipline?” Macbeth raised his eyebrows. Jessica laughed. “No way. Only where we feel competent —” Brett completed the thought. “Like family law, business formation, contracts for Jess. I’d take employment, simple IP, pre-litigation issues.” Macbeth asked, “Could you handle possible high volume? I see competence and diligence issues.” Cartoon by George W. Brewster Jr.

“We’d expect it might be high — initially. Then drop off. We have three talented paralegals whom we’d use to help screen and direct the traffic,” Brett explained. Jessica added, “We’d limit document review to a set number of pages. After that, a surcharge. Limit phone calls to a specific duration. We’d have to craft some parameters.” “From a professional responsibility viewpoint, consider the scope of services you’ll provide. Make it clear in your agreement. Because you limit what you’ll do, you have to state it carefully. The client has to give informed consent.” Brett asked, “What about a client who abuses the subscription? You know. Calls 10 times a day with nonsense stuff?” “Fine question. A client can always fire the lawyer. We, on the other hand, are bound by Rule 1.16.”

Jessica and Brett turned to the rule

“At a minimum, give notice. Allow the

in the small blue book Macbeth

client time to get another lawyer,”

gives visitors.

Macbeth paused, “but I don’t mean to discourage you.”

“You could consider language in your agreement that allows you to

Brett laughed. “We’re not

terminate the representation unless

discouraged.”

bad behavior changes … but then you’d have to warn the client.

“Don’t be. You’ve got imaginative

Wait and see.”

ideas. Access to justice is a critical issue for so many. It’s becoming

Jessica nodded, “I see the problem.”

more acute. I applaud your efforts to develop creative approaches. We’re

“You also have Rule 1.16(b)(4).

always here to help.”

If the client’s conduct makes it unreasonably difficult for you to

Editorial Note: Some Rules of

carry out the representation —”

Professional Conduct Macbeth addressed, without specific

“Ten calls. Every day. With nonsense!”

mention, include: Rule 1.2 (b) (limited scope of representation; Rules 1.5

“But remember, even if you ethically

and 1.15 (fees and client funds);

terminate the representation, you

Rules 1.1 and 1.3 (competence and

still have to take steps to avoid

diligence); and Rule 1.16 (termination

reasonably foreseeable prejudice to

of representation).

the client.” Edward McIntyre

“OK,” the two agreed.

(edmcintyre@ethicsguru.law) is a professional responsibility lawyer and co-editor of San Diego Lawyer.

SAN DIEGO LAWYER | September/October 2019 13


Tech by Bill Kammer

IS AI THE NEW 'SNAKE OIL'?

A

t Legalweek New York 2019,

of competing products that tout

search terms chosen. Programmers

every vendor seemed to

their AI. Commentator Robert

may consider that one term is

tout their product’s artificial

Ambrogi recently reported that the

more important than another and

intelligence (AI). AI, sometimes

number of AI companies selling to

should be then associated with a

called machine intelligence, is

lawyers had increased by 65% in

third term. They can also train a

the intelligence demonstrated by

the previous year. The products are

machine progressively by teaching

computers in contrast to natural

not only competing, they are also

it with preferred or ranked facts and

human intelligence.

lacking a track record.

associations. It will then return more results from the database using the

We have all experienced

To a certain extent, the U.S. law

criteria it learned along the way. But

AI in modern life: Netflix

librarians may come to the rescue.

machines may be misled if the initial

recommendations, Amazon’s

The descriptive title of a presentation

knowledge used to fire up their

and Spotify’s suggestions, and

at their Association’s 2018 convention

artificial intelligence was inaccurate

LinkedIn’s and Facebook’s prods.

asserted that “Every Algorithm Has

or reflected only the situation

a POV.” The article reported the

known at start-up.

Who hasn’t heard an IBM Watson

results of 50 carefully structured

ad? These may be recent, but AI has

legal searches performed with

More recently, the law librarians

been around the legal world for a

the tools we use: Westlaw, Lexis

tested data analytics tools marketed

long while, in both legal research

Advance, Fastcase and several

to lawyers. The names of these

and electronic discovery.

others. It compared the top 10

platforms should be familiar. The

results from each database and

study evaluated seven, including

At Legalweek, vendors were

found that an average of 40% of the

Bloomberg Law, Lex Machina,

selling AI not only for research

returned results were unique to that

LexisNexis Context and Westlaw

and discovery, but also for brief

database. While not a total disaster,

Edge. Twenty-seven librarians

analysis, contract review and data

those results illustrate that we may

from law firms and academic law

analyses (such as examinations of

trust those everyday tools, but we

libraries worked on the project,

every case decided by a particular

should verify the results.

each testing two platforms for a

judge). Yet many salesmen were

month. They tested those platforms

not able to describe how AI

Deeper analysis of the “Point of

with a common set of 18 questions.

enhanced their products nor could

View” issue requires consideration

An example was a query: how

they explain the design of the AI

of the algorithms used by the

many times a certain law firm had

algorithms that powered their tool.

databases and tools. Different

appeared in front of a certain judge

teams of humans developed the

in the district of Delaware. The exact

Except for those from the largest

different tools, and so each legal

answer was 13, but not a single

firms, most lawyers are challenged

database makes different decisions

platform obtained that result. Again,

to evaluate the relative merits

about how to relate and analyze the

“trust but verify.”

14 SAN DIEGO LAWYER | September/October 2019


Lawyers are not the only ones

applicants. For instance, the tool

suspicions about the absence of an

who should be concerned about

learned to penalize resumes

expected result. Application of that

AI’s outputs. Even technology

containing the word “women’s”

approach will probably satisfy the

companies can make AI mistakes.

and downgraded graduates of

standard of care; and fortunately in

Earlier this year, published reports

the two all-women’s colleges.

the world of electronic discovery, it

recalled an effort by Amazon since

Amazon gave up on that effort

should satisfy the need to conduct

2014 to develop and use a recruiting

last year and disbanded the

a reasonable, good-faith effort to

tool to review resumes. The tool

development team.

collect and produce the relevant

ranked each resume on a five-point

information.

scale. Early on, Amazon realized

What can we do to avoid disastrous

that it was not rating candidates for

consequences such as a wrong

In the final analysis, we will have to

technology and software positions

answer, a missed case or citation,

learn on the job what works for us

in a gender-neutral manner.

or an overlooked relevant and

and what we can afford to obtain

Though it sought more diversity,

important document? Most lawyers

and use. There is an interesting

it had trained its recruiting tool by

can’t afford multiple AI-induced

journey ahead.

feeding it the resumes of 10 years

tools in each category that might

of hires. Unfortunately, few of those

allow machine verification of

previous hires had been women, so

results. At a minimum, we should

the AI tool was trained to prefer

demand a “proof of concept” period

male applicants with the same

before committing to a purchase.

experiences and professional

Then when using a tool, we should

relationships possessed by

depend on common-sense

previous, successful male

analyses of search results including

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

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DON’T GEOFENCE ME IN THE NEW FRONTIER OF LOCATION-BASED ATTORNEY ADVERTISING By Devinder Hans

W

hen you have a smartphone with you,

area for longer than an hour. Apps can also analyze

you are never lost or alone. Whether it is

phone sensor data to determine activities such as

through GPS, cell towers, Wi-Fi networks

walking or traveling in a car and trigger different

or Bluetooth beacons, you can be tracked by the

actions depending upon how you entered or left the

phone itself, your service provider or any number of

location. Going further, retail stores can track which

installed apps. Phones also now incorporate a range of

displays in the store attract a customer’s attention

sensors that can tell when you are driving or walking.

or determine that a customer visited the fitting room

By identifying where you are, where you’ve been and

but did not make a purchase.

how you got there, your phone can also infer your needs — including your need for legal services.

Using geofencing, an app can remind you to pick up milk when driving near a supermarket, offer you

What is Geofencing? Geofencing triggers certain actions based on your location. It’s made possible through GPS and nearby Wi-Fi networks, or (generally indoors) beacon

a coupon as you walk past a restaurant, and record that you always stop in the candy aisle after picking up your groceries.

begins with defining a geographic area (such as a

Some Creative (and Potentially Problematic) Uses of Geofencing

hospital, restaurant or sports arena), then triggering

Inspired by the old marketing adage of go where

a specified action when the phone enters, leaves or

the customers are, some personal injury attorneys in

remains in the specified area. The geographic area

Philadelphia have used geofencing to target patients

can be further contextualized when combined with

in hospitals, physical therapist offices and pain centers.

activity information. For example, an event may be

Anyone who entered such a facility in the city would

triggered if the phone has been in the specified

begin to receive ads for personal injury attorneys for

technology using Bluetooth signals. The process

SAN DIEGO LAWYER | September/October 2019 17


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more than a month afterward. Speaking to NPR last year, a marketer using the practice described it as “the closest thing an attorney can do to putting a digital kiosk inside of an emergency room.” Although broadly targeting all visitors of a medical center may not violate professional ethics, in some jurisdictions they may violate consumer protection laws. In Massachusetts, an advertising company used geofencing to target “abortion-minded women” by focusing on customers of reproductive health centers in several Eastern states. The company agreed to discontinue the practice in a settlement with the Massachusetts Attorney General to resolve allegations that the practice violated state consumer protection laws. The AG expressed concern that the practice was being used to digitally harass patients and interfere with health privacy. Finally, in the third trial over the alleged toxicity of the weed killer Roundup, plaintiff attorneys requested an injunction to prohibit defendant Monsanto from allegedly using geofencing to advertise the safety of Roundup to persons within the courthouse. The attorneys reportedly heard from potential jurors from one of the earlier Roundup trials that those individuals began to receive pop-up ads promoting the safety of Roundup. In denying the motion, Alameda County Superior Court Judge Winifred Smith wrote that “[t]he court is not persuaded that the alleged geo-marketing is materially different from carrying signs outside a courthouse or carrying placards or wearing buttons inside a courtroom.”

professional employment where “the solicitation is transmitted in any manner which involves intrusion, coercion, duress or harassment.” “Solicitation” is defined as communications offering to provide legal service “that is directed to a specific person.” Additionally, comments to Rule 7.3 clarify that “solicitations” do not include communications directed to the general public such as “an internet banner advertisement … or if it is … automatically generated in response to internet searches.” Geofencing generally would not result in a violation of Rule 7.3. In formal ethics opinions, the State Bar of California has previously concluded that communications directed to the general public or a segment of the public, such as via a website

Geofencing and the Rules of Professional Conduct

or blog, are generally not prohibited solicitations,

Attorney advertising is governed by Rules of

advertising. However, using the technology to target

Professional Conduct Rules 7.1–7.5 (formerly

a narrow group of prospective clients known to

consolidated as Rule 1-400) and Business and

be in a vulnerable mental or emotional state may

Professions Code sections 6157-6159.2. Potentially

implicate the prohibition against intrusive, coercive

relevant to geofencing, Rule 7.3 prohibits soliciting

or harassing communications.

although depending on the content they may be subject to the rules and statutes regulating attorney

Devinder Hans (devinderlaw@gmail.com) is an attorney at law.

SAN DIEGO LAWYER | September/October 2019 19


Education

WHAT LAW STUDENTS NEED TO ‘BE SUCCESSFUL’ By Renée Stackhouse

L

aw students and new lawyers often have ideas of what they want to be: successful, rich, a change-maker, a trial lawyer, a teacher and so

Be seen. Go to events in your legal community. Meet people

forth. In order to get there, I suggest you start here:

and make connections. Send follow-up handwritten

Be well.

you) to the people you meet. Put your picture in your

notes, emails or LinkedIn requests (whatever works for email footer so people can associate your name with

In law school, as in the profession, there is an

your face and remember meeting you. Make it easy for

enormous amount of pressure to hit certain milestones

them to recognize you when you’re out and about.

equated with success. That mindset can drive both students and lawyers to unhealthy lifestyles. Emotional and physical crutches can range from eating unhealthy foods, to not exercising, to self-medicating with alcohol or drugs. Although it’s hard, try to make self-care a priority in law school so that you carry wellness habits

Be involved. Law school organizations are a wonderful way to get, and give, support in law school. Take that experience even further by getting involved in the greater legal

into your legal practice.

community. Pick an organization that resonates with

Be nice.

Division, which is open to law students, or one of the

you. Perhaps you choose the SDCBA New Lawyers 40-plus local law-related organizations (find a full list

Be kind to everyone. Period. Your contemporaries will

at www.sdcba.org). Just make sure you choose a group

be your colleagues in a few years, and they will be your

that brings personal satisfaction. That way, you never

judicial officers in a decade. Your reputation begins

resent the time or effort you’re asked to give to it — and

in law school and people will remember how you

do give! Join and get involved in a committee. Make

treated them and equate that with your competency

commitments to help and follow through. Work your

as a lawyer. Likewise, when you land a job in an

way up in the organization. The community that you

office or courtroom, treating everyone with kindness

support will support you right back.

goes a long way. You will learn the most from office secretaries, paralegals, bailiffs and clerks. 20 SAN DIEGO LAWYER | September/October 2019


Education Be curious.

Believe.

After your first semester, you can start getting experience.

Believe in yourself. Everyone has self-limiting beliefs.

Reach out to the fabulous folks in your Career Services

The difficult part is to figure out what yours are. Much

to let them know what your goals are and what you’re

like biases, self-limiting beliefs are changeable once

interested in. They will help you. Try as many different

you have identified them. If you’re having trouble

things as you can, so you can learn what you enjoy

identifying them, ask a friend or family member to

doing. As a secondary benefit, you will gain experience

describe you and write down what they say. If you want

and hit the ground running when you’re hired. Very few

to fight the nice things that were said, you’ve found

businesses want to train someone from scratch. Good

some self-limiting beliefs. Imagine your life if you

grades are terrific; practical experience is better.

weren’t limited by them. Actively create new, positive

Be persistent. People may tell you: “You don’t have enough experience,” “You can’t apply for that job because,” “You shouldn’t try as a first-year associate to" or “You will never get hired if." Don’t listen. Identify what you want, then work each day to make it happen. Sometimes it’s

beliefs about what you can accomplish. Whenever you hear your inner critic tell you what you can’t do, fight back with what you can do. Cheers to you and your path to success — whatever that path is to you. Know that you have an entire community rooting for you.

a long road, sometimes the results are immediate, but you’ll never get there if you don’t keep trying.

Renée Stackhouse is a founder of Stackhouse APC.

SAN DIEGO LAWYER | September/October 2019 21


Education

BORDER MYTHS SYMPOSIUM By Sofia De La Rocha

D

espite the 8:30 a.m. call time on a Saturday,

question the myths of immigration and separate fiction

the California Western School of Law’s

from reality. This early morning commentary set the

lobby was packed. Students and practicing

tone for the remainder of the day.

attorneys of our southern border community flew like moths to a flame to attend the school’s

With this perspective fresh in our heads, the journey

Law Review and International Law Journal’s joint

began with the first of three panels, which revolved

symposium on Border Myths.

around the constitutional issues of immigration policies. A disheartening reality check came from

In these times of uncertainty, with confusion

Honorable Mimi Tsankov, who shed a much-needed

surrounding immigration policies and practices,

light on the current backlog of the immigration

it’s no surprise that so many showed up with the

courts and the toll the current structure places on

hope of clearing smoke.

due process. These facts seemed to weigh heavily in a room full of aspiring and practicing attorneys.

The topic hits close to home for many, especially

Her call for change was made more pressing by the

given San Diego’s geographical positioning and the

panelists who followed.

number of immigration attorneys here that deal directly with these “myths.”

Professor Carlo E. Zaya-Morales brought the plenary power doctrine under scrutiny, while Professor

The symposium covered issues from three distinct

Reginald Oh’s discussion on the dehumanizing

perspectives relating to immigration in the United

language used toward immigrants served as both a

States: constitutional, economic and racial. Attendees

shocking revelation to some and as a shuddering echo

were guided through these issues by an array of

of words for others. Despite the different backgrounds

guest speakers from different backgrounds. These

of the attendees, it seemed the crowd was united by a

“ferrymen” discussed the narratives surrounding

shared interest in change.

immigration policies. In the second panel, Professor Lydia Zepeda provided The first panelist was keynote speaker Bardis Vakili,

daunting findings on the costs of our immigration

a Senior Staff Attorney at the American Civil Liberties

policies. She also showed us that current policies in

Union. Mr. Vakili encouraged the eager audience to

place are not anti-immigrant, but rather anti-Mexican,

22 SAN DIEGO LAWYER | September/October 2019


Education Central American and Muslim. A shocking example of this is that 95% of those deported are Mexican or Central American, but they only make up 68% of the undocumented population. Professor Zepeda pointed out that it seems that the U.S. government has chosen to focus on these illegal border crossers — as opposed to the pressing issue of visa overstays — to curb the rising Hispanic population.

L - R: Professor James Cooper, Professor Lydia Zepeda, Professor Lilia Velasquez, Mexican Ambassador Marcela Celorio Mancera

In turn, the rest of the nation now firmly believes that this minority of undocumented immigrants is the major problem facing our borders. “Follow the money,” Zepeda said, and by doing so we will see that Congress can, in fact, reduce costs in border control and address actual border concerns. The panel also included Mexican Ambassador Marcela Celorio Mancera, who shared her experience with the United States-Mexico-Canada Agreement, and Professor Lilia Velasquez, who

L - R: Jesse Imbriano, Professor Pooja Dadhania, Professor Reginald Oh, Professor Jamie R. Abrams, Sohail Wahedi

provided insight on those living as undocumented immigrants. Velasquez shared her own struggle

This resonated with what Sohail Wahedi, a Ph.D.

with misconceptions that others place upon her as

candidate of Erasmus School of Law, spoke about.

a Latina woman, despite her being one of the best

She uncovered the troubling tone of fear the Muslim

immigration attorneys in San Diego.

ban set and how the racist and fear-based belief sits in contradiction to the "American Dream."

This led to the final panel on racial issues, which covered false labeling and the daily racism immigrants

Finally, Jesse Imbriano, of Casa Cornelia Law Center,

face. Professor Jaime R. Abrams described toxic

addressed family separation at the border. She

masculinities in immigration policies, encouraging

revealed that while it may seem a novel issue, it has

the audience to expose these hidden masculinities

been plaguing border crossing for years. In the end,

in order to evoke change in our policy making. Then

the stagnation surrounding border policy was felt

Professor Guadalupe Correa-Cabrera discussed the

throughout the room.

misguided perception of policymakers regarding immigrants coming from Central America. She spoke

Next spring, California Western’s journals will again

on immigrants supposedly creating a national security

combine efforts to host another symposium. In a

threat with violent gangs. The estimate of “10,000

continuation of trying to deconstruct thorny areas of law

members” in the MS-13 gang has in fact not been

and public policy in order to inspire change, the journals

updated in over a decade. More troublingly, there isn’t

will discuss the topic of plastic pollution and regulation.

any consensus on what defines a “gang” — so any data

They will use San Diego’s unique location as a beacon

compiled cannot be verified.

to place this rising crisis in the spotlight. All members of the community will be welcome to attend.

Tandis Taghavi (ttaghavi@law.cwsl.edu) is a law student at Cal Western School of Law.

Sofia De La Rocha (SGDe@law.cwsl.edu) is a law student at Cal Western School of Law. SAN DIEGO LAWYER | September/October 2019 23


Education

C

alifornia has a reputation for having the most difficult bar exam and the lowest pass rate in the nation. According to the State Bar of

California, only 31.4% of February 2019 bar exam takers passed the exam — a decrease from the 40.7% that passed in July 2018 (the lowest rate in 70 years), but an increase from the 27.3 % that passed in February 2018. If the bar exam tests minimum competency to practice law, these recent pass rates indicate that only 30 to 40 % of law school graduates are competent enough to be attorneys in California.

THE CALIFORNIA BAR EXAM:

MORE BAR THAN EXAM? By Catherine Ferguson

"According to the State Bar of California, only

31.4% of February 2019

bar exam takers passed the exam – a decrease from the 40.7% that

passed in July 2018 (the

lowest rate in 70 years)."

Is that true? Is the bar exam the last bastion of protection for the unsuspecting public against hoards of incompetent attorneys? One would assume that law schools train their students to become lawyers. However, if we accept that the bar exam effectively tests competency, based on the recent low bar passage rates, law schools are failing to do so at an average rate of 70%. While pass rates vary from school to school in the state, the overall trend has been a decrease in graduates passing the exam. What is causing the downward trend? You may have heard the maxim that law schools teach students how to think like lawyers. While that may be helpful in practice, the recent pass rates suggest it may not be enough to pass the bar exam. Understanding basic legal concepts like the elements of negligence and contract formation are undoubtedly important, but is it fair to make prospective lawyers memorize the elements of 15-plus subject areas, when no practicing attorney is required to do the same? While the multiple choice (Multistate Bar Exam) and essay portions of the exam test the ability to apply the law to the facts to some extent, the issue remains that test takers must first memorize all of the laws that could possibly be tested. Can practicing California lawyers still recite the elements

1. The multiple choice portion is worth 50%, the essays are worth 36% and the performance exam is worth 14%. http://www.calbar. ca.gov/Admissions/Examinations/California-Bar-Exam/Description-andGrading-of-the-California-Bar-Exam

of first-degree murder and distinguish it from manslaughter? Can a holographic codicil be used to amend the beneficiaries of a will? If you don’t know the answer to those questions, would you consider yourself an incompetent attorney?

24 SAN DIEGO LAWYER | September/October 2019


Education This isn’t to say that the entire exam is ineffectual.

It may not be possible to place the blame solely on

The performance question — wherein test takers are

the bar exam, as other variables likely contribute to

given statutes and case law, then told to perform a

the low bar passage rates. Maybe law schools are not

task expected of attorneys — seems to be a more

doing enough to teach students the elements of the

accurate assessment of competence. This may be the

laws and the bar exam is too focused on memorization

only portion of the bar exam that truly tests the exam

rather than emphasizing the ability to apply the law to

taker’s ability to be a lawyer. Any lawyer presented

the facts. It’s time to reexamine both institutions and

with the facts of a case should gather and review the

determine whether the goal of producing competent

relevant law, apply the law to the facts, analyze and

attorneys is being bolstered or hindered. Last year,

conclude. In fact, if a practicing attorney relied solely

the State Bar launched a program that analyzes the

on rote memorization rather than research, it would

knowledge and skills required of entry-level attorneys

be viewed as irresponsible and potentially verging on

for purposes of reevaluating the pass line, format

malpractice. Yet, the performance exam only consists

and content of the bar exam. Only time will tell what

of one question, while there are 200 multiple choice

changes are recommended and the effects those

questions and five essays, which both have greater

changes have on bar passage rates.

weight in an overall score1.

Catherine Ferguson (CAF@LFAP.com) is an attorney with Lounsbery Ferguson Altona & Peak, LLP, practicing land use and environmental law.



Education

THE LOAN ROAD TO FORGIVENESS By Brian Keliher

T

wo years after earning his law degree from

Reasons for denial focused on a general

the University of San Diego, Brian Nielsen was

misunderstanding of how the program works.

at a crossroads. The question was: should he

Lack of qualifying payments (53%) was the top mistake,

continue to practice law or take a full-time position as

followed by missing information (25%), no eligible loans

a San Diego police officer?

(16%) and employer certification issues (4%).

Student loans topping $170,000 weighed heavily on

“What’s horrifying is that so many responsible

his decision. The Public Service Loan Forgiveness

individuals were working in public service and

(PSLF) program promised relief. He chose the SDPD.

thought they were doing what they were supposed

The road to loan forgiveness, however, proved rough.

to do,” says Heather Jarvis, an attorney specializing in student loan law. “Then they were told, ‘Sorry, you

Three years into his repayment plan he checked in

didn’t consolidate,’ or ‘Oops, you were in the wrong

with his loan servicer to make sure he was on track.

repayment program.’”

The representative assured him that “the loans that qualify are good to go.”

Consumer advocates point to loan servicers (11 private entities responsible for collecting loan

“I lost it!” says Nielsen. “They all should qualify.”

payments and advising borrowers) as part of the

He escalated the issue and a supervisor helped put

problem. In July 2019, the American Federation of

things back on track. Unfortunately, he lost credit for

Teachers filed a lawsuit against the Department

three years of payments on several loans.

of Education (ED) on behalf of eight borrowers. The case cites violations of the Administrative

Congress passed the PSLF program in 2007 with the

Procedure Act and the Due Process Clause as well

purpose of forgiving government-backed student

as loan servicer errors such as miscounting loan

loans for those making 120 monthly payments while

payments and telling borrowers they were “on

employed in an eligible government job or with

track” when they weren’t.

certain nonprofit organizations. More than 1 million borrowers have taken steps to loan forgiveness. An opportunity for the first wave of borrowers to seek forgiveness came in October 2017, the program’s 10-year anniversary. A 2018 Government Accountability Office (GAO) report was grim: 19,321

“The loan servicers do not have the same incentives as the student loan borrowers, and their interests are not aligned,” says Jarvis. ”I tell people with debt not to get advice from your debt collector, which is essentially what the loan servicers are.”

applied and only 55 were granted relief. SAN DIEGO LAWYER | September/October 2019 27


THANK YOU TO OUR FRIEND & PATRON MEMBERS The SDCBA gratefully acknowledges the generous commitment provided by members who support our community at the Friend and Patron membership levels. You can become a Friend or Patron member when you activate or renew your membership online. For more information, please contact our Member Services Department at (619) 231-0781 x3505.

PATRON MEMBERS Marc D. Adelman

Sergio Feria

Gerald S. Mulder

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Victor E. Bianchini

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Teodora D. Purcell

Jedd E. Bogage

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Kristin Rizzo

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Anthony Hawkins

Thomas P. Sayer Jr.

Andy Cook

Van E. Haynie

Johanna S. Schiavoni

Steven T. Coopersmith

Matthew C. Hervey

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Stephen M. Hogan

Todd F. Stevens

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Garrison “Bud” Klueck

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FRIEND MEMBERS Laura Ashborn

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Mark Kaufman

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David Dugan

Marguerite Lorenz

Clay Spiegel

Thomas Fitting

Mary Beth Martin

Susan Fox

Christine Murphy


Education If borrowers can’t trust servicers, can they rely on the Department of Education, the federal agency administering the program? The 2018 GAO report faults the ED for not providing key information to the servicers. For example, instead of providing them with one comprehensive manual to help borrowers, it disperses guidance “in a piecemeal manner across multiple documents, including the original contract with the servicer, multiple updates to the contract and hundreds of emails.” So what’s a borrower to do?

"I TELL PEOPLE WITH DEBT NOT TO GET ADVICE FROM YOUR DEBT COLLECTOR, WHICH IS ESSENTIALLY WHAT THE LOAN SERVICERS ARE." received a refund for one extra payment. “I was paying attention to all of the details and following

“Document everything, including payment history,

everything,” says Baltimore. “Even in law school I

employment certification responses and all servicer

made sure I had the right kind of loans.”

correspondence,” says Robyn Bitner, counsel with the National Student Legal Defense Network. “A lot

There were bumps along the way. “At one point

of these records tend to get lost in the shuffle at the

my loan servicers were switched without my

servicer. The other thing is to be really tenacious.

knowledge,” says Baltimore. “I lost a few months when I could have been making payments toward

If something doesn’t seem right, keep escalating the

my forgiveness.”

issue with the servicer. How confident is SDPD Detective Brian Nielsen One who made it through the process is Beth

that all will end well with his forgiveness plan?

Baltimore, an immigration specialist at Justice in

“I’m absolutely terrified as to how it’s going to go

Motion, a Brooklyn, New York nonprofit.

down,” he says.

She had $100,000 in loans forgiven in July and even

Brian Keliher (brianklegal@gmail.com) is an attorney and the Business Department Chair at Grossmont College.

NOMINATIONS OPEN Deadline: October 9th @ midnight Visit sdbj.com/bizevents to nominate & purchase tickets. AWARDS RECEPTION October 24, 2019 | 4:00SAN – 7:00 pm | LAWYER University Atop Symphony 2019 Towers DIEGO | Club September/October 29


Education

College Admissions Scandal:

Are We Surprised? By Jeremy M. Evans

T

he college admissions scandal shocked the

Parents often give financial gifts to schools as part of

American populace. Top universities, wealthy

legacy and other programs. Even if only conceptually,

celebrities and current college students saw

those gifts have some effect on college admissions.

their names tarnished. Even college graduates were

For example, an alum or donor may donate money

affected, as the scandal could perceivably discredit or

to name a building after their family. Years later, the

weaken their own degrees and accomplishments.

donor’s child, grandchild, niece or nephew applies to the school. For the most rigorous of institutions, the

Although recent actions were disgraceful, college

applicant will still have to comply with and complete

admission scandals are nothing novel. Consider the

admissions standards, but the truth is, money talks.

NCAA recruiting and apparel deal scandals, or the

At the very least, that donation and that name on the

litigation over paying college athletes for not licensing

building highlight the applicant.

their images. Morally questionable threads weave through the education sector, including the increasing

Many wonder what will happen to the parents and

emphasis on wealth.

administrators who fabricated admission credentials of applicants. Unlike a donation, a fabrication involves

Government debt reports have shown the costs of tuition

concealment as part of the admissions application

rising, but salaries remaining stagnant. There has even

process. Although criminal elements are at play for

been talk in Congress about legislation to lighten the debt

fraud by the accused, first-time offenders in criminal

load of American college graduates. In turn, the benefit of

cases are often given diversion or community service

a college education has largely changed in the collective

programs with hefty fines. It is therefore conceivable

American mind — specifically, as it pertains to the value of

that a wealthy Hollywood star would simply pay a fine

the degree outweighing its costs.

and do community service. What is often overlooked is the ironic nature that a payment would be made to

With ongoing collegiate affairs and increasing tuition

a charity or even the institution (where the university

costs, we must ask ourselves: Are we really surprised by

was not at fault) to construct a building with the

the college admissions scandal?

family name.

30 SAN DIEGO LAWYER | September/October 2019


Education Unfortunately, the entire college model has become so expensive that the situations described above are commonplace. The focus for state and private educational institutions is based on fundraising for survival and excelling in the competitive marketplace for education providers. In the end, the college admissions scandal is a symptom of the increasing competition of admissions and the rising cost of education. Consider that the students admitted through their parents and administrator assistance actually

The unfortunate part about the college admissions process is its emphasis on money. That is why the college admissions scandal, as disheartening as it is, is not surprising.

performed well academically. Despite having an illegal assist to entry, the students did well. What does that say about the admissions process — who gets in, who doesn’t and the weight of financial means? In a free market economy, costs would increase with salaries. In this case, costs in education have risen, but salaries have not. This makes some sense because education does not fully compete in the free market. Subsidies, federal student loans and tax-free benefits of the 501(c)(3) nonprofit model make education somewhat immune to change and perfect competition. If educational institutions were forced to compete and become more innovative, what would happen? It is possible, and likely, that educational institutions would lower the cost of tuition and find innovative ways to educate students if required to compete like other businesses. Perhaps they would be regulated to keep costs low because the same institutions receive the government benefits mentioned above. I have often argued, especially with low bar passage rates in the state of California, that the most successful and imagined law school in the country (or state) would be an institution that (1) offered low cost tuition, but (2) guaranteed (within reason and data) bar passage. Students would be flocking through the proverbial doors. Student success and bar passage rates are why

Harvard, Yale and Stanford are such popular schools. The Ivys alone have a 80-90% bar passage rate. Bar passage rates are similar to success in any industry. For example, the best schools would be able to say (1) here is what we offer for the price, and (2) here is what you will get (a job, opportunity, etc.). Many schools do this of course, but not to the specified level of a free market business. Some schools even offer merit-based scholarships where the applicant knows their financial burden when applying and can get tuition help for being a good student. As we all know by now, the unfortunate part about the college admissions process is its emphasis on money. That is why the college admissions scandal, as disheartening as it is, is not surprising. College is expensive and the institutions need money. Those who pursue education will look for any edge on admissions they can get. This is not a call for moral indifference or lack of ethics. Far from it. If there is to be a better college admissions system, there must be a change. The system cannot encourage admissions by dollar amounts and influence. What we currently have is the tragedy of admissions, followed by a scandal of admissions.

Jeremy M. Evans (Jeremy@CSLlegal.com) is the Founder & Managing Attorney at California Sports LawyerÂŽ.

SAN DIEGO LAWYER | September/October 2019 31



A mother and her two children stay at Jewish Family Service of San Diego’s Migrant Family Shelter while they receive legal aid.

I

The Border Crisis: Helping Migrants Receive Access to Justice

n one of the most politically divided climates the U.S. has ever seen, the humanitarian crisis at San Diego’s southern border has reached a critical level. Thousands of asylum-seekers and their families have traveled for months on end through Central America, fleeing violence and persecution in their home countries, only to be told that they must wait – and wait, and wait – before they can cross into the U.S. to plead their case for asylum. By October 2018, the situation escalated with the end of Immigration and Customs Enforcement’s (ICE) “Safe Release” policy, which previously allowed initially processed, legal asylum-seekers to make travel arrangements to re-connect with their loved ones or sponsors in the U.S. prior to being released from federal custody. The end of the policy meant hundreds of migrant families were released onto San Diego’s streets with no resources and no way of getting to their final destinations. To complicate the situation further, in January 2019, the federal administration began employing Migrant Protection Protocols (MPP, commonly referred to as “Remain in Mexico”), a policy that forces asylumseekers to return to and remain in Mexico to await their immigration court date in the U.S. While in Mexico, asylum-seekers do not have access to resources or counsel, and their welfare is significantly compromised.

To help, the San Diego County Bar Foundation, the charitable arm of the San Diego County Bar Association and in partnership with the San Diego legal community, granted $5,000 as part of the 2018 General Grant Program to Jewish Family Service of San Diego (JFS) to increase its ability to provide pro-bono legal aid for migrants seeking better lives for themselves and their families. Founded in 1918, Jewish Family Service is one of San Diego’s most impactful nonprofit agencies – providing resources and support to more than 39,500 San Diegans every year. Through integrated services, the organization empowers people of all ages, faiths, and backgrounds to overcome challenges, set goals, and build more stable, secure, and connected lives.

JFS is a core partner and lead legal service provider of the San Diego Rapid Response Network (SDRRN), a coalition of human rights and service organizations, attorneys, and community leaders dedicated to aiding immigrants and their families impacted by increased immigration enforcement in the San Diego border region. Together, SDRRN works to ensure that no one stands alone in our community. JFS also leads SDRRN’s legal services for individuals and families affected by MPP. Previously, these families were allowed to come into the U.S., where they could access services at JFS’s Migrant Family Shelter, including shelter, food, clothing, health services, legal aid and assistance with making travel arrangements to their final destinations. To date, JFS has provided nearly 150 free legal consultations to individuals and families who have been returned to Mexico after being enrolled into the MPP program and has represented 20 cases. These numbers are a small sampling of the estimated 6,000 individuals enrolled in MPP in the San Diego region. With JFS serving as one of only two organizations in San Diego currently assisting with MPP cases, there is a significant need to address the lack of representation for this vulnerable underserved population. In addition to handling casework, JFS recruits, trains and mentors volunteer attorneys to provide pro-bono representation for immigration cases. The organization also trains and coordinates volunteer attorneys to respond in real-time to ongoing immigration-related emergencies called into SDRRN’s 24-hour hotline that require immediate legal response. The San Diego County Bar Foundation encourages donations of all sizes from the legal community and supporters to support organizations like JFS; for example, $77 can provide one-on-one legal services support for immigration rights cases. For more information, or to make a donation, visit www.sdcbf.org.


C

o-counseling is a delicate subject. Many attorneys avoid it, especially when the relationship is between two firms.

However, a well-thought-out co-counsel relationship can benefit both attorneys. For example, a lesssenior attorney can take on a more complex case and walk away with nice templates for their next case. The senior attorney then has the opportunity to act as a mentor and receive the financial benefits of another case. Meanwhile, solo attorneys can keep cases that might otherwise go to a bigger firm by pooling their experience and skill set. These arrangements can be great opportunities for new and interesting work. The next time you face a complex matter, consider co-counseling with the help of these 10 tips:

1. CASE/MATTER STRATEGY AND APPROACH

10 tips for successful co counseling

Different attorneys will have varying approaches to get desired results in a matter. At the outset, discuss and agree with your co-counsel on a case/matter strategy. Alternatively, accept that your approaches differ so much you shouldn’t work together and instead look for other co-counsel.

2. CLEAR DIVISION OF WORK AND AGREEMENT ON FEES

Decide at the outset how work and fees will be divided. The less senior attorney with the prior client relationship may want to handle as much

By Sasha Kamfiroozie and James D. Crosby

of the work as possible, while senior counsel provides support through document preparation and client communications. You may need senior counsel to take the lead due to the volume of work the matter generates, or you

34 SAN DIEGO LAWYER | September/October 2019


may want to simply divide the work based on your

Failing to properly document division of work,

respective skill set and workload.

particularly if you don’t have one attorney overseeing the case every step of the way, can result

However you decide to divide work, it is important

in missed deadlines, dissatisfied clients and potential

to outline the following: Who will be the point of

malpractice. If the ball is dropped, both lawyers will

contact for client communications? Will both attorneys

be on the hook. That is why I encourage the less

participate in calls and meetings? If both attorneys

senior attorney bringing the matter to co-counsel to

participate, how will the attorneys’ time be billed?

be involved every step of the way, even if this results

Will one firm handle all client billing or will each bill

in a lot of non-billable time. The cost of learning is

for their own time? Who is responsible for each phase

time well-spent. Moving forward, you will have the

of the case and relevant deadlines? Who will advance

skill set to take on these matters independently.

costs and how will they be reimbursed? As to billing and fees, there can be a variety of casespecific arrangements. Where two attorneys are present but not required, one attorney no-charges

4. PRESENT AND OBTAIN CLIENT APPROVAL

their time (the cost of learning) or the attorneys each bill at half time. Sometimes it makes sense for both attorneys to bill at their full rate, such as when

Co-counseling attorneys should consider a written

they are addressing complex issues or preparing

document to memorialize their expectations and

case strategy, or in a substantial matter warranting

commitments in the case. It can be included in the

multiple attorneys. In some cases, the attorneys will

Rule 1.5.1 agreement if the case involves the division

need to agree on how to divide a contingent fee.

of fees. Alternatively, it can be a separate written agreement between counsel or an email exchange

If the co-counsel arrangement involves the splitting

between the attorneys memorializing what each

of legal fees (as opposed to each attorney simply

attorney will be doing in the case or matter. Keep in

billing the client directly), compliance with California

mind, this may be an evolving document.

Rule of Professional Conduct 1.5.1 is required. Rule 1.5.1 requires that the lawyers enter into a

Explaining to your client why you want to bring in

written agreement to divide the fee, that the client

co-counsel is a sensitive subject. As the attorney

consents, and that the total fee charged by all

with the client relationship, you don’t want the

lawyers is not increased solely by reason of the

client to leave your firm.

agreement to divide fees. Explain how co-counsel benefits their case. Explain that they will never be double-billed, so they essentially get two lawyers for the price of one. You

3. PUT IT IN WRITING

know the facts of their case/business best, so there is value in having you manage the case. Co-counsel brings a unique skill set or experience that adds

A common breakdown in co-counsel relationships occurs when the parties are not clear — both at the outset and throughout representation — of the expectations for each attorney.

value to the matter. The client knows you are a solo attorney and co-counsel allows you to use the other firm’s support staff, etc. Finally, make sure the client knows it is ultimately their choice and that if they prefer to have the matter handled entirely by another firm, you will support

SAN DIEGO LAWYER | September/October 2019 35


transfer to new counsel. The most important thing is that the client has confidence in whomever is handling their matter. Even if the client proceeds

7. CONDUCT REGULAR MEETINGS/CASE REVIEW

with a new firm entirely, you will maintain trust and confidence by having been transparent about where your experience lies. Ideally, that client will

Lack of communication is the greatest risk to a

come back to you for work in your wheelhouse or

successful co-counsel relationship. Be sure to

will refer future work.

schedule regular calls or meetings to review work to date and approaching deadlines, monitor and re-assess strategy as necessary, and coordinate

5. WHO SPEAKS TO THE CLIENT, OPPOSING COUNSEL AND PRESS Determine who speaks to the opposing counsel for the client. Two attorneys communicating directly with opposition will surely create confusion and strategic openings for opposition — “But your

the work moving forward. Regular calls, meetings and documentation will help avoid the “I thought you were doing that!” problem.

8. COORDINATION OF MARKETING, SOCIAL MEDIA AND PUBLIC STATEMENTS

co-counsel said this!” Likewise, determine who communicates with the client. You must have clear lines of communication with the client to lessen client confusion or dissatisfaction. Finally, if it is a high-profile matter, determine who speaks to the press. Conflicting or competing statements to the press from co-counsel will likely hurt the client as well as the credibility of you and your co-counsel.

Many attorneys use case victories and experiences as marketing opportunities through social media posts, press releases and speeches. These efforts also reflect on the co-counsel. You surely don’t want your long and well-earned reputation sullied by something your co-counsel says on a Facebook post about the case or your client. Coordinate your marketing efforts and social media activities concerning a co-counseled matter to ensure

6. NO DUPLICATION OF EFFORT AND BILLING

A co-counseling arrangement should not be an excuse for both attorneys to bill as if they were working alone. There needs to be a clear delineation

that both co-counsel benefit, and you avoid embarrassing public missteps.

9. ATTORNEY WITHDRAWAL ISSUE

of decision making, task completion and billing. Further, the more attorneys involved, the more

In a co-counseling situation, your agreement with

opportunities there are for attorneys to communicate

your client should address what happens when

about the case. That communication must be

one attorney withdraws as well as the right of the

deliberate, goal-driven and consistent with the

remaining attorney to withdraw. You should consider

division of authority.

including in your fee or Rule 1.5.1 agreement the right to withdraw when and if your co-counsel does. When the case was undertaken as a co-counsel

36 SAN DIEGO LAWYER | September/October 2019


matter, you should not be obligated to remain in the case if your co-counsel bails.

10. DON’T STEAL THE CLIENT FROM YOUR CO-COUNSEL

Cardinal rule — don’t steal the client from your cocounsel! Let’s say Sasha brings a long-time client to Jim in a co-counsel setting. Perhaps the matter is too

the client gets somewhat under Jim’s roof, Jim may

WRITE IT DOWN — WHEN YOU START

be tempted to make a run at the client for other

By Edward McIntyre

big for Sasha’s office or she needs Jim’s expertise. The client remains Sasha’s on other matters. Once

work or, more bluntly, steal the client away from Sasha. Cynical, I know, and while this Jim wouldn’t

A co-counsel arrangement has many benefits — as

do that, others might! It’s a competitive marketplace.

Sasha Lamfiroozie and Jim Crosby’s article points out

Under these circumstances, it is wise to have a frank

— not the least of which is getting paid for your work.

discussion with your co-counsel from the start that

The question remains, can lawyers from different

your client is off-limits.

firms share fees — ethically? If so, how?

Co-counseling arrangements help maintain

Rules of Professional Conduct, Rule 1.5.1 (effective

and develop mutually beneficial professional

November 1, 2018) permits lawyers not in the

relationships. It is important, however, that co-

same firm to divide a fee (1) if they have a written

counseling attorneys enter these relationships

agreement to do so; and (2) if the client consents in

with eyes wide open. A full understanding of

writing; either (a) when the lawyers enter into their

respective roles and expectations, on the part

agreement to divide the fee or (b) as soon after as

of the attorneys and the client, is crucial for the

is reasonably practicable; and if (3) the lawyers give

success of the arrangement.

the client full written disclosure (a) that fees will be shared; (b) the identity of the lawyers or firms sharing

Be very selective in who you agree to work with.

the fees; and (c) the terms of the deal; and if (4) the

Work with someone who is fair, reasonable and

total fee charged to the client by all the lawyers is

ethical by your standards. Not all personalities

not increased solely by reason of the agreement to

work well together and there will surely be ongoing

divide fees.

discussions and renegotiations of the division of work as the matter moves forward. Simply put, find a

In short: have a written agreement; give the client

flexible and trustworthy co-counsel.

transparent disclosure of the deal; get the client’s written approval when you make your agreement;

Sasha Kamfiroozie (Sasha@kamlawfirm.com) is founder of the Law Office of Sasha Kamfiroozie.

and make sure the client’s fee does not increase solely because of the fee-sharing deal. Comply with the rule and the written agreements will be easier to

James D. Crosby (crosby@crosbyattorney.com) is founder of

enforce if a dispute arises.

the Law Office of James D. Crosby.

SAN DIEGO LAWYER | September/October 2019 37


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1899 2019

LOOKING BACK:

NELSON HILAND DODSON MAN OF MYSTERY ... AND MURDER?

By George W. Brewster Jr. 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.

O

n the corner of San Diego Avenue and Twiggs

sometime between 1869 and 1872. He had a general

Street, inside Old Town State Park, stands a

law practice at the location until 1871, when he moved

single-story wood-framed house. The small

his practice to New Town where he advertised as a

marker posted outside states it was the home and

lawyer and searcher of records.

law office of N. H. Dodson. It is the only law office depicted in the park. There is nothing in the house

San Diego legal historian Leland G. Stanford does not

and no further information provided on Dodson.

discuss Dodson in any fashion. Dodson is not included

Who was N. H. Dodson? Nelson Hiland Dodson was born and raised in Iowa, but eventually got the itch to move west. He first moved to Sacramento in 1857, around the age of 18. Dodson’s older brother, Milton, moved to California in 1849— probably as a result of the gold rush, and it's possible Dodson followed him. At some point, Dodson decided to practice law. He worked in the law office of Presley Dunlap before being admitted into the California Bar in late 1868. Due to poor respiratory health, Dodson headed to San Diego on the steamer Sierra Nevada, which arrived May 18, 1869. According to records maintained by the Old Town State Park, Dodson acquired land once owned by San Diego’s first mayor, Joshua Bean, and moved into the house on the corner of San Diego Avenue and Twiggs Street

in Stanford’s Legal Lore collection, nor the group of lawyers and judges thought by Stanford to have made a significant contribution to San Diego. However, Dodson was a Republican Party delegate to the 1869 County Convention, a member of the 1871 Central Committee of Northern San Diego and a Republican nominee for the 1871 judicial race (but withdrew). Meanwhile, Dodson and his wife, Matilda, had a son, Tennyson Byron Dodson, born February 17, 1873. Unfortunately, his wife died the following year. Her death and the need for drier air, resulted in Dodson moving to Poway in 1874. It is there that the mysteries and accusations of murder swirl around him. According to the book Paguay published by the Poway Historical and Memorial Society in 1993, Dodson “opened a store called Dodson’s Station which

SAN DIEGO LAWYER | September/October 2019 39


2020 2020

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dispensed more liquor than general merchandise.”

A story like this generally has the prosecutor at

Dodson referred to his nearby house as the “20-

the inquest planning to introduce Feeler’s heart to

Mile House,” near where the Big Stone Lodge still

demonstrate that Feeler was shot in the back. However,

(barely) stands. The name was a reference to the

as the story goes, the heart was being kept in a bucket

stagecoach stop 20 miles from San Diego, on the way

and pigs got to it before it could be shown to the jury.

to Escondido. At his store, Dodson sold supplies and had a blacksmith shop to service travelers on horse.

Just two years later, in 1885, Dodson was part of

He also practiced law there.

another coroner’s inquest, this time surrounding the death of his older brother, Milton. Milton had lived

In Poway, Dodson met Narcissus Turner Burns, who

with Dodson on and off from 1881 to 1885. Milton had

moved to California after 1870 with her husband and

attempted suicide twice before by drug overdose.

three children. After her husband passed, Narcissus

On July 27, 1885, he had harsh words with his brother,

married Dodson, likely in 1882. A daughter is born in

who asked him to leave his house. Milton went to the

1883 but died in 1884 and by some accounts Narcissus

room where he had been staying, locked the door and

filed for divorce in 1888 but withdraws the filing.

sliced himself twice in the abdomen with a shaving razor. Dodson said he kicked in the door and tended

In 1883, Narcissus’ youngest child, Lulu, was 14. Her

to his brother until he died. This time, Dodson was

oldest child, Annie, was married to Franklin Feeler.

able to make use of the newly available telephone to

Franklin’s father was Cornelius Feeler, then 48 and a

call for assistance. Poway’s first doctor, Louis Hilleary,

widower. The Feeler family lived nearby and on August

was called to the scene and later testified that blood

23, 1883, there was trouble.

splattered eight feet from the slash wound. The jury found, 7 to 0, the death was by suicide.

At a later coroner’s inquest (with jury), Lulu testified that Cornelius Feeler cornered her in a room and tried

After a tumultuous stay in Poway, Dodson moved

to have his way with her. Dodson, stepfather to Lulu,

back to San Diego in 1887 and went back to a more

came upon the scene and exchanged angry words

regular practice of law. By 1900, Dodson moved

with Feeler. According to eyewitness testimony, at

back to Sacramento while his son, Tennyson, had

least three gunshots rang out. Witnesses saw Dodson

possession of Old Town house. Dodson died in 1919

with a gun at his side and heard Feeler shout “Don’t

at age 79 and was buried in an unmarked grave in the

you draw your gun on me!” Dodson maintained

Sacramento City Cemetery.

that Feeler shot first, and he then fired back in selfdefense. Feeler fell to the ground. Robert Daley, from

Photographs of the Old Town area show the

Bear Valley (and owner of what is still called Daley

deterioration of the Dodson house, which disappeared

Ranch) stopped at the 20-Mile House and store for

altogether by 1925. Tennyson, who went on to fight as

provisions. He helped Dodson move Feeler to the

a corporal in the Spanish-American War (U.S. Army

back of the store, where Feeler died. Dodson rode by

Cavalry) died in Long Beach in 1956. Narcissus (who

horse to San Diego to turn himself in.

stayed in San Diego to work as a nurse) died just shy of 90 in 1931, and is buried in Julian.

The Coroner’s Jury found (by a vote of 8 to 4) the killing was justified and in self-defense. The other four jurors

Dodson blended into obscurity, but his rebuilt house

felt that the killing was not justified. One of those

stands firmly in San Diego’s Old Town State Park.

doubting four was C. S. Luce, part of the Luce family that later founded the law firm of Luce Forward.

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. SAN DIEGO LAWYER | September/October 2019 41


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TRIBAL JUSTICE FILM SCREENING AT SAN DIEGO LAW LIBRARY San Diego Law Library is proud to

This event is part of the

You can access legal information

be hosting a special screening of

programming for San Diego Law

on this topic and more at our

the documentary film Tribal Justice

Library’s topic of the year — Native

Downtown and Vista locations.

on the evening of November 7,

American Tribal Law. Each year, San

Information about events is

2019. Tribal Justice is an award-

Diego Law Library gives special

announced regularly via our

winning film that profiles two Native

focus to an area of law intrinsic to

e-newsletter, our website (www.

American judges who use traditional

the fabric of San Diego County’s

sandiegolawlibrary.org) and social

concepts of restorative justice to

culture, history and modern-day

media. We look forward to seeing

reduce incarceration and create

life. Throughout the year, we will

you at one of our upcoming events.

safer communities. One of the judges

have additional programs featuring

profiled in the film is the Honorable

experts in the field of Tribal Law. We

Claudette White, Chief Judge from

will also be spotlighting resources on

the Quechan Tribal Court, who

Tribal Law available at the library and

will be attending the event as the

in the community. One such resource

keynote speaker. More information

is our new Native American Tribal

about this event and registration

Law research guide, available on our

information will be available soon on

website, which features resources

the San Diego Law Library website.

on a variety of legal topics related to Native Americans.

WHAT TO DO

WHEN... By Christine Pangan

Your client constantly calls.

2. Ask your client to email

While you want to be compassionate

instead of call.

and allow your client to confide in

If your client sends multiple emails,

you, you do not have time. You dread

you can read them all at once,

the conversations as they can last

narrow down what issues need to

an hour, with many concerns you

be addressed and respond with one

cannot fix.

email.

A social media survey of attorneys reveals these top three strategies for

3. Set time limits.

managing expectations:

Remind the client you only have a certain amount of time to chat. Once

1. Schedule specific times to talk.

that time is up, let the client know you

Let your client know you only have

have to go and will need to set up

time to talk once or twice a week to

another time to talk.

address concerns. Christine Pangan (cipangan@yahoo.com) is co-Editor of San Diego Lawyer and a Lead Attorney at the Legal Aid Society of San Diego, lnc. SAN DIEGO LAWYER | September/October 2019 43



WHY I BELONG MICHAEL BURKE Law Office of Michael Edmund Burke Education: Thomas Jefferson School of Law/ formerly Western State University Areas of practice: Federal Criminal Defense

Hobbies: Movies, theater, acting, music. Favorite book: Ulysses by James Joyce. Best concert you’ve ever been to: Rolling Stones. Favorite food: Persian or Mexican. Most fun/memorable SDCBA moment or meeting: Bar picnic in early 1982 — I was amazed at how

Proudest career moment: Winning 9th Circuit Appeal on unique double jeopardy argument.

much fun lawyers can have. Do you have a unique skill or special talent nobody knows

Family: Wife and 16-year-old son with autism.

about? I played four musical instruments when I was

Birthplace: Los Angeles.

younger. I also act.

Current area of residence: Mission Hills, San Diego.

Do you have a mentor?

“If I weren’t an attorney, I’d be ... ”: A professor.

I like to bounce my cases off a variety of really good lawyers.

"The best thing about being an attorney is ...”:

What would you most like to be known for?

Having the opportunity to really make a difference in

Helping my indigent clients in federal court.

people's lives, particularly the less fortunate. What makes San Diego’s Bar so special/unique?

Last vacation: Catalina Island with family.

We are a close-knit group. I'm always among friends in the local legal community, particularly in federal court. I

Favorite website: YouTube.

Meet Your

Bar-ista SDCBA Staff Serving Our Members

really appreciate how unqiuely talented our lawyers are.

What are your main

What is your favorite part

responsibilities at the Bar?

of your job?

As an LRIS Specialist, I’m responsible

Being able to help people who

for answering live chat, emails and

don’t have the means to attain a

telephone inquiries in a courteous

well-qualified attorney with the

and timely manner, determining the

Modest Means Program.

nature of the issue and assisting the public by referring them to an attorney or directing them to other agencies when appropriate. As the Modest Means Coordinator, I screen clients to determine if they qualify for the Modest Means Program. I also process documents

HECTOR JIMENEZ

and refer people to the appropriate attorneys.

Lawyer Referral and Information Service Specialist / Modest Means

How long have you been

Coordinator

working at the Bar? 10 months.

What is your favorite movie and why? Generation Iron because of my love for fitness. What’s your favorite quote? “Whatever it takes.” What do you love about San Diego? I love the people, the beaches and all the activities there are to do here. It’s the best city I’ve ever lived in.



Distinctions The following individuals in our community were recently honored for their achievements: Richard “Dick” Shaw, Higgs Fletcher & Mack (HFM) Partner, will receive the 2019 Richard Carpenter Excellence in Tax Award for his service to the University of San Diego School of Law

The Witkin Award Dinner and Ceremony honorees

and his leadership in the Tax Bar.

include Hon. Victor E. Bianchini (Ret.) for Excellence in the Adjunction of Law; Renée Stackhouse, Stackhouse APC, for Excellence as a Community Changemaker; and Heather L. Rosing, Klinedinst PC, for Excellence in Public Service. Craig Higgs, Higgs Fletcher & Mack

Carolina Bravo-Karimi, Crystal Culhane, Michelle

(HFM) Partner, will posthumously be

Jacko and Parisa Weiss were recently recognized by

honored by the San Diego Law Library

San Diego Metro Magazine as four of the 12 “Women of

Foundation for “Excellence in the

Influence” in San Diego.

Practice of Law” at the 2019 Bernard E. Witkin Award Ceremony on October 17.

Hon. Judith McConnell was

Higgs will also be honored at a joint reception for

honored by the American Bar

the University of San Diego School of Law’s Board of

Association Commission on

Visitors and attendees of the school’s 2019 RSJ Law

Women in the Profession with

Tax Controversy Institute.

the Margaret Brent Award.

Passings Judge David Moon passed away July 23, 2019. He was a mentor to many in our legal community and will be greatly missed.

ADVERTISERS INDEX ADR Services, Inc 32

Lawyer Referral & Information Service

50

AHERN Insurance 4

Law Office of Steven C. Vosseller

6

CaseyGerry 3

Monty McIntyre, Esq.

21

First Republic Bank

38

Panish Shea & Boyle

54

Gomez Trial Attorneys

44

San Diego County Bar Foundation

16

JAMS 46

USClaims 2

Judicate West 42

West Coast Resolution Group

15, 18

LawPay 26

Wheatley Mediation Services

10


THESE REFERRALS

PAY!

San Diego attorneys earned over $6 million from our referrals in 2018. The SDCBA’s Lawyer Referral and Information

clients that match your practice area. Our clients

Service (LRIS) referred over 30,000 clients to

know they’re being paired with quality attorneys

participating lawyers in 2018, resulting in over

too, thanks to our thorough lawyer qualif ication

$6.3 million in legal fees earned. With its low

process. This is your assurance of the best

annual enrollment fee (even less for SDCBA

possible referrals.

members), LRIS is one of the most effective ways to help grow your practice in San Diego. Our mission is to set you up for success, so LRIS sends you only carefully screened

Join the San Diego attorneys already growing their practices with LRIS.

REQUEST YOUR LRIS APPLICATION: 619.321.4153 or LRIS@sdcba.org


PHOTO GALLERY BENCH-BAR MEDIA EVENT Attorneys, judges and members of the media examined increasing pressures on judges and reporters.

L-R: Matthew Halgren, Brooke Binkowski, Hon. Joan Weber, Hon. Dana Sabraw

SDCBA President Lilys McCoy

Judy Bae, Hilary Vrem

JUVENILE LAW BENCH-BAR LUNCHEON Judges and lawyers gathered to share a meal, build connections and discuss meaningful issues.

Carolyn Griesemer, Hon. Richard Monroy

Tanya Starkweather, Hon. Kimberlee Lagotta

NEW LAWYER DIVISION SUMMER PARTY Emerging attorneys enjoyed the New Laywer Division's annual signature event. Photos by J.T. MacMillan

Miranda Varoz, Sierra Spitzer

L-R: Kimberly Reisman, Erin Hanson, Mellania Safarian, Laura Pratt, Joselyn Sosa


100

LUB

EN PERC T C 2019

THANK YOU 100 PERCENT CLUB 2019 The San Diego County Bar Association wants to thank all of the San Diego law firms that have provided SDCBA membership to 100% of their attorneys in 2019. Your commitment to the San Diego legal community is greatly 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 Bonnie R. Moss & Associates Brierton Jones & Jones, LLP Brown Law Group Carothers DiSante & Freudenberger LLP Casey Gerry Schenk Francavilla Blatt & Penfield, LLP Christensen & Spath LLP 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 Erickson Law Firm APC Farmer Case & Fedor Ferris & Britton, APC Finch, Thornton & Baird, LLP Fleischer & Ravreby 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 Society of San Diego, Inc. Lincoln Gustafson & Cercos LLP Littler Mendelson PC McCloskey Waring Waisman & Drury LLP Men’s Legal Center Miller, Monson, Peshel, Polacek & Hoshaw MoginRubin LLP Moore, Schulman & Moore, APC Musick, Peeler & Garrett LLP Naimish & Lewis, APC Neil, Dymott, Frank, 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


MEMBERS CAN SAVE THOUSANDS OF DOLLARS on everyday services from these trusted SDCBA partners. We’ve negotiated these great deals for you. Start saving today! Preferred Provider INSURING LAW FIRMS ONE POLICY AT A TIME

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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

WWW.PSBLAW.COM | TOLL FREE 877.800.1700


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