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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.
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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
Trying to settle a high-stakes, complex, Probate Court case?
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RICHARD A. HELLER Best Lawyers in America’s San Diego “Lawyer of the Year — Litigation, Trusts & Estates” in both 2019 and 2016 Leader of Procopio’s Litigation Team 2009-2013 AV rated by Martindale for over 25 years
For more information or to schedule a case, please contact Kathy Purcell at kpurcell@westcoastresolution.com or (619) 238-7282.
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
Doc Anthony Anderson III
James P. Frantz
Raymond J. Navarro
Judy S. Bae
Matthew David Freeman
Anthony J. Passante Jr.
Victor E. Bianchini
Douglas A. Glass
Teodora D. Purcell
Jedd E. Bogage
Richard A. Golden
Kristin Rizzo
James A. Bush
Alvin M. Gomez
Ana M. Sambold
Jose S. Castillo
Anthony Hawkins
Thomas P. Sayer Jr.
Andy Cook
Van E. Haynie
Johanna S. Schiavoni
Steven T. Coopersmith
Matthew C. Hervey
Richard “Rick” S. Sterger
Ezekiel E. Cortez
Stephen M. Hogan
Todd F. Stevens
Thomas M. Diachenko
Richard A. Huver
Kimberly Swierenga
John A. Don
Garrison “Bud” Klueck
Thomas J. Warwick Jr.
William O. Dougherty
Don S. Kovacic
Andrew H. Wilensky
Alexander Isaac Dychter
Laura H. Miller
FRIEND MEMBERS Laura Ashborn
Anthony Gizzarelli
Anne Perry
Steven Barnes
Ronald Greenwald
Kristi Pfister
Linda Cianciolo
Mark Kaufman
Stella Shvil
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
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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
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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