San Diego Lawyer July/August 2020 by San Diego County Bar Association

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® JUL/AUG 2020

P laces we've Been

PLUS Traveling During the Pandemic At Another American Racial Crossroads The Fight Against Climate Change Goes to Court

AC C O M P L I S H E D. I N N OVAT I V E .T R U S T E D C A S E YG E R R Y P R I VAT E I N V E S T I G AT O R S For Decades, CaseyGerry Has Maintained An In-House Team Of Dedicated Private Investigators.

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We welcome former FBI Special Agent, Bradlee Godshall to the firm’s Private Investigation Team. With experience in medical fraud, environmental crime, complex financial frauds, and counterfeit pharmaceuticals, Godshall will provide investigative support to the firm’s complex litigation team.

Dedicated to the Pursuit of Justice Since 1947. As one of San Diego’s most established plaintiffs’ law firms, we have successfully represented thousands of individuals, and recovered billions of dollars for our clients. We have influenced vital change in the auto, sports and tobacco industries, and remain dedicated to our civil justice system and to our community.

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JOEL & KATHLEEN SELIK LIVING THEIR CREED

After learning that local emergency responders faced a shortage of protective masks, Joel Selik and his wife, Kathleen, sprang into action. A recreational seamstress, Kathleen sews masks in their home. Joel periodically posts messages on listservs and social media, offering free masks to anyone in need. Kathleen sews 50 to 75 masks per day. Joel packages, personally delivers, and mails the masks. Since Coronavirus reached the U.S., they have donated more than 1,000 homemade masks, including 435 masks to the Oceanside police and fire departments and additional masks to individuals, Rady Children’s Hospital, Sharp Healthcare, elder care facilities throughout Southern California, two hospitals in Georgia, and a recent shipment to England. All for free. In fact, they decline donation offers. “As a family, part of our creed is to find ways to help others,” explains Joel. Joel Selik is a sole practitioner representing plaintiffs in legal malpractice and debt collection matters. Always a team, Kathleen serves as his office administrator. Joel Selik is not affiliated with the Vosseller Law Firm. Far too modest, Kathleen declined to be photographed.

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VOSSELLER LAW FIRM

CONTENTS 8

PRESIDENT'S COLUMN The Road Ahead—Together by Johanna Schiavoni

ETHICS Pandemic Problem Solved by Edward McIntyre

TECHNOLOGY Tech Tidbits & Trivia by Bill Kammer

WHY I BELONG Get to know Natalie E. Ortiz

TUMULTUOUS TERMS Tumultuous 1918 by George W. Brewster Jr.

MEET YOUR BAR-ISTA Maribel Sanchez Program & Events Specialist

Page

WHAT TO DO WHEN ... There's a Pandemic by Edward J. Southcott LEGAL AID SOCIETY OF SAN DIEGO The Journey Toward Justice Begins Here by Gregory Knoll DISTINCTIONS AND PASSINGS

THE SDCBA CONDEMNS RACISM AND VIOLENCE AGAINST COMMUNITIES OF COLOR

AT ANOTHER AMERICAN RACIAL CROSSROADS Finding the Moral Courage to Act by Wilson A. Schooley

ONE MAN'S VIEW by Hon. William McCurine Jr.

ROXY IS BLACK by Roxy Carter

COVID-19, CLIMATE CHANGE, AND ENVIRONMENTAL JUSTICE by Avneet Sidhu

CLIMATE CHANGE LITIGATION by Devinder S. Hans

THE FIGHT AGAINST CLIMATE CHANGE GOES TO COURT by Anne Kammer

HUMOR IN THE LAW by George W. Brewster Jr.

COURTING HISTORY by George W. Brewster Jr.

PLACES WE'VE BEEN Photo Gallery

TRAVELING DURING THE PANDEMIC by Phillip Stackhouse

CONFERENCE LOCATIONS AND THE TRANSITION TO VIRTUAL by Julie T. Houth

LEISURELY 'LAWYERING' ABROAD by Jeremy M. Evans

THE GROUNDED INTERNATIONAL LAWYER by Raúl Villarreal Garza

SERVING JUSTICE — FAR AWAY by Edward McIntyre

VIRTUAL LAW SCHOOL by Alexandra Wallin

Page

BUSINESS OF LAW Steps for Recovering from the Impact of COVID-19 by Renée N.G. Stackhouse

LAW SCHOOL COLUMN Preparing for a Career in Immigration Law by Barbara Zaragoza

SAN DIEGO LAWYER

July/August 2020

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Issue 4, July/August 2020 SAN DIEGO LAWYER MAGAZINE EDITORIAL BOARD Co-Editors Julie T. Houth

published bimonthly by the San Diego County Bar Association,

Edward McIntyre

Editorial Board George W. Brewster Jr. James D. Crosby Devinder S. Hans Whitney Hodges Wendy House Anne Kammer

Michael G. Olinik Christine Pangan Wilson A. Schooley Renée N.G. Stackhouse Gayani Weerasinghe

Immediate Past President Lilys D. McCoy Vice Presidents Gary S. Barthel Linh Y. Lam Teodora D. Purcell Secretary Melissa Johnson Treasurer David M. Majchrzak

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SAN DIEGO COUNTY BAR ASSOCIATION

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SAN DIEGO LAWYER

July/August 2020

President’s Column by Johanna Schiavoni

THE ROAD AHEAD—TOGETHER

hen our board of

Those discussions revealed common

Our staff then developed tactics to

directors and senior

themes and significant alignment

help us reach our goals and priorities

staff came together

among and between our board and

and worked alongside our strategic

in January to plan our year, we set

staff. We then got to work refining our

planning committee to bring them to

out to identify common goals for the

goals and identifying concepts vital to

life in a final strategic plan, which was

Association’s three-year strategic plan

our mission statement.

unanimously approved by our board

and to craft a new mission statement.

in June.

While much has changed in the

It was imperative to me that every

months since that initial planning

voice in our group of 27 was heard

retreat, I am proud to share with you

and valued, so we also spent time

the results of that enduring work.

getting to know one another. This was the first planning retreat for seven new board members and three

Building From a Solid Foundation

members of our senior team (including our new Executive Director, Deputy

These efforts did not start from scratch—rather, they built upon the work of prior leadership. In 2018, the SDCBA identified our Core Values— Inclusion, Community, Innovation, Leadership, Growth, and Celebration— and developed a statement that encompassed those values. In turn, this became our Vision Statement and an expression of what drives our thinking for the long term.

Executive Director, and Marketing Director), so we worked hard to build cohesion as a group. And I strongly believe that this foundation as a community of leadership has enabled

Refining Our Mission with Our Members in Mind In crafting our new mission statement, we sought extensive input over several months from lawyers within and outside the SDCBA to better understand how we can best be of service to attorneys throughout San Diego County. Again, common themes emerged.

us to persevere and even thrive as we guide the organization through the

We heard time and again that lawyers

challenges and uncertainty wrought

look to us to help them connect.

by 2020.

We also learned that you want to be successful (however you define

Our Shared Strategic Goals

success), and that you want to be happy and professionally fulfilled.

We identified the following six Inclusion and community define us.

strategic goals to guide the

Innovation and leadership propel us.

What resulted is a new mission

Association’s direction for the next

Your growth motivates us. Celebrating

statement—adopted unanimously

three years:

by our board in July—that we hope

you and the profession IS us. From those building blocks—our Values and our Vision—we set out to

To sustain, grow, and engage our membership

captures the essence of who and how we seek to serve:

develop our strategic plan and new

To provide unique, relevant,

The mission of the San Diego

mission statement.

and targeted programming

County Bar Association is to connect

To keep our membership at

lawyers and support their success

the forefront of technology

and fulfillment.

Planning for 2020 and Beyond

To promote and provide wellness offerings

The Reality of 2020

To build lawyers as leaders

Although our planning work began

member of the board and senior staff

To ensure financial sustainability

early in 2020, clearly this year had its

about priorities for the organization.

to meet the needs of our members

own plans for all of us.

In preparation for our January 2020 retreat, a facilitator interviewed each

SAN DIEGO LAWYER

July/August 2020

A pandemic set in, first arriving as a crisis, and then continuing to unfold as a new reality. And with COVID-19 has come economic upheaval not only for lawyers, our clients, and the court system, but for our families, neighbors, and country. In the midst of the COVID-19 pandemic, we also are experiencing a deepening reckoning with the systemic racism woven into our country’s history, which continues to disparately target communities of color. We must acknowledge that history, and pervasive inequities in our criminal and civil justice systems. As lawyers, we must continue to engage in this conversation to ensure that our profession seeks meaningful change, that government is a force for good, and that society works for everyone and not just some. Against this backdrop, our board and staff leadership continually re-evaluate our work around our mission, vision, and values. And we emphatically believe our strategic goals have withstood the challenges—and even revealed new opportunities—coming out of these crises.

Facing the Challenges and Embracing the Opportunities as We Look Ahead Recently, a fellow lawyer asked me whether I was disappointed that 2020 had been overtaken by so many crises such that I hadn’t been able to accomplish a personal agenda as SDCBA President. To be honest, with the press of business in my law practice and moving from one big

I didn’t have a particular “agenda” coming in as President. My priorities

engagement, relevant programming,

were to continue strengthening the organization, to support our board

financial sustainability. Ultimately, we

through a period of transition in welcoming seven new members,

“to connect lawyers and support their

But in that conversation, I stopped. I paused. I reflected. And I responded with my truth.

are working hard to meet our mission success and fulfillment.”

and to ensure our staff members have the resources they need to be successful. I also was focused on continuing to elevate our diversity and inclusion efforts and ensure we provide opportunities for lawyers to lead within the Association and in the broader community. And finally, it was important to me to play a role in adopting our new strategic plan and mission statement. But, my overarching goal was that the SDCBA do all of this with an eye toward serving you—our members.

project to another at the Association, I have not had much time to reflect.

technology, wellness, leadership, and

I’m incredibly proud of the successes we’ve achieved this year, already making substantial progress toward our mutual goals around member

To be sure, we have more work to do to support the profession and our members through these challenging times, and to continue to serve as a leading voice to push for growth, change, and equity in the profession, justice system, and society. But I am confident our guiding principles will serve us well on the road ahead—together.

Johanna Schiavoni (johanna.schiavoni@calapplaw.com) is a certified specialist in appellate law, and her practice at California Appellate Law Group LLP focuses on civil appeals in state and federal courts.

SAN DIEGO LAWYER

July/August 2020

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LAW SCHOOL COLUMN by Barbara Zaragoza

PREPARING FOR A CAREER IN IMMIGRATION LAW PROFESSOR POOJA DADHANIA SAYS DOING RESEARCH AS A STUDENT CAN HELP DEVELOP AN EXPERTISE

came to law school focused on becoming an

Professor Dadhania’s research centers on the historical

immigration attorney. However, I knew very little about

development of immigration law and its impact upon

the field beyond the attorneys I saw on the news.

marginalized communities. She notes that academic work

During my first year, I realized our best resource can be

can help change policies and even assist attorneys in

our professors. Going to office hours early in the semester

the courtroom. “I think research can serve as a basis for

and asking questions about immigration law helped me

practitioner arguments. I often explore different types of

start thinking about how best to plan my career. I asked

arguments that people can make when they’re litigating.”

Professor Pooja Dadhania, Associate Professor of Law, to speak with me and share her knowledge. Professor

Professor Dadhania encourages students to do their own

Dadhania received her J.D. from Columbia Law School

scholarship while still in law school, such as writing for their

and currently teaches the asylum law class at California

law review journals and trying to get their articles published.

Western. She has an impressive work history and many

“It can help you start developing an expertise. Scholarship

publications, but I wanted most to ask about her nonprofit work and her academic research. Professor Dadhania was an attorney with the Legal Aid Foundation of Los Angeles, where she represented clients with humanitarian immigration claims. She filed asylum applications, T visas for trafficking survivors, U visas for survivors of crime, and petitions under the Violence Against Women Act. She explains, “I also practiced family law because at Legal Aid we found there was a lot of overlap with client needs between immigration and family law. If you’re working with domestic violence survivors on their immigration cases, they might also need a restraining order, or help with a divorce or child custody.” Currently at California Western, some of Professor Dadhania's research stems from the cases she worked on as an immigration attorney. For example, her article "Deporting Undesirable Women" published in UC Irvine Law Review (September 2018) arose out of her work at

can signal to employers that this is what you’re interested in. Through the publication you can also help advance the thinking in this area.” She explains that judges read law review articles to get background on a topic. Professor Dadhania herself wrote a student note while in law school, which two courts later cited. To prepare for a career, Professor Dadhania suggests taking all the immigration law classes offered. “It’s helpful to develop a foundation during law school because it can be a bit overwhelming to read the immigration statutes or regulations without any background.” She also suggests practical courses to develop client interviewing and trial skills. A second language is also helpful to know, such as Spanish. Students who have an interest in immigration law have many avenues of employment after graduation, including private firms, nonprofit organizations, and the government. Meeting with Professor Dadhania gave me direction in selecting my second- and third-year courses as well as having many ideas

Legal Aid after she noticed the harsh immigration laws

for applying to summer internships. As a law school student,

against prostitution. “These laws came about in the late

the insights of our professors can provide some of the

1800s and they have remained in our books ever since.

strongest foundations for our future professional careers.

The laws were very gendered, focusing on vilifying sellers of sex with no reciprocal penalties for buyers of sex. Also, there was a race-based motivation behind these laws, viewing Asian women as corruptors of white, American society.”

Barbara Zaragoza is a law student at California Western School of Law. She hopes to practice as an immigration attorney.

SAN DIEGO LAWYER

July/August 2020

ETHICS by Edward McIntyre

PANDEMIC PROBLEM SOLVED Macbeth opened the Zoom application. Shortly Sara

So, his fee agreements may not be the last word.”

and Duncan appeared, each also at home. “Indeed, but certainly set the upper limit of what any Sara spoke, “Macbeth, I invited a friend, Megan, to join

court will allow. Let’s talk about your arrangement.”

us if that’s OK. She has some ethics questions.” “OK.” “Of course. That’s why we’re here.” “It’s fee sharing, which is permitted when done correctly.” After a few minutes, another young woman “That’s good. But how’s it fee sharing? He’s paying me out

appeared on screen.

of his own pocket. Even after a case settles or goes to trial, “Welcome, Megan. I’m Macbeth. Meet Duncan.

he doesn’t get that back.”

You know Sara, of course.” “True, but he will pay you a percentage of any contingent “Yes, thank you.”

fee he receives, or the court allows. I think fairly understood, that’s fee sharing by two lawyers who

“Please, go ahead.”

are not in the same firm, triggering rule 1.5.1."

“Well, the pandemic really put a dent in my practice. I’m a

“What does that involve?”

solo. Started my own practice about a year ago. Then some good news — a friend asked me to help him. I just want to

“The current rule requires three things: A written

make sure I’m doing it right.”

agreement to divide the fee. Client consent in writing to that agreement after full written disclosure of the fact of

“Always prudent. What are your questions?”

the fee division, identity of the lawyers, and the terms. Third, the total fees charged the client cannot be more

“He has a number of consumer cases. Some are class

because of the fee division.”

actions. They’ve become active. He needs help with research. Also, working on damages packages for

“When would we have to do all that?”

settlement discussions. It could be significant work for me.” “At the time you enter into the agreement or as soon after “Sounds great. What are your concerns?”

as is reasonably practicable.”

“He wants to pay me a small amount an hour. Not near my

“Sounds complicated.”

normal rate. But it’s something. Then, if he settles a case, or wins at trial, he’ll pay me a portion — a small percentage —

“It doesn’t have to be. For example, a note to the client

of the attorney’s fees he gets. If not, well —”

telling them he is going to focus his energies on trial and settlement strategy for the client’s benefit. To do that

“We understand, you bear the risk. But let’s assume he

more efficiently, he has asked you to do research and

does well. You’re concerned about the ethics of

assist with the preparation of damages packages. But your

the compensation?”

contribution will not cost the client more. He’ll pay you $X out of his pocket and share Y% of his fee with you when the

“Precisely.”

case successfully concludes. Then he asks the client to approve in writing.”

“I assume he has these cases on a contingency fee basis?” Sara spoke, “That notice serves a second purpose. If “Yes, 30% if settled before trial; 40 if the case is tried. But for

your role in the case could be considered a significant

the class actions, a court has to approve any fee award.

development, then rule 1.4 requires a lawyer to keep a

SAN DIEGO LAWYER

July/August 2020

Cartoon by George W. Brewster Jr.

client reasonably informed. It doesn’t require client consent.

has to be disclosed to the court and put in whatever

But does call for communication.”

notice goes to the class. In connection with approval of a settlement, for example.”

“Good point, Sara. Likely research wouldn’t be a significant development. But preparation of damage

Duncan spoke, “Do you think the lawyer who wants to hire

packages might be.”

you will agree?”

“What happens if the client won’t agree?”

“I think so. I did a lot of consumer litigation at my former firm. He needs the help. And he’s a good guy. It seems

“You should come up with another arrangement.

simple. Disclosure of fact, lawyers, and terms of fee

Otherwise, as courts have held, you have no enforceable

division. Client consent.”

agreement and may have to rely on quantum meruit or equitable estoppel arguments if the lawyer did not pay

Macbeth again, “You got it, Megan. Good luck. If we can

you as agreed.”

help, please let us know. If the lawyer would like to talk to us, we’re here.”

“In the class actions, all the class members wouldn’t have to agree. Would they?” “A bit beyond legal ethics, but I believe you’ll find only the class representative has to agree in writing. On behalf of the class. But then the arrangement likely

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

SAN DIEGO LAWYER

July/August 2020

TECHNOLOGY by Bill Kammer

TECH TIDBITS & TRIVIA

e may have spent a substantial portion of 2020

older versions were forced to upgrade to enable joining

working remotely from home, utilizing new

a meeting. The upgrade facilitated encryption across the

technologies, and learning new skills.

entire platform.

We might have stumbled upon different methods of pursuing our profession, and been forced by the pandemic

Gmail Addresses: This may be old news, but I recently

to question past ways of doing business. Some may

analyzed an issue related to the form of a username for a

question the need for offices in high-rise buildings or the

Gmail account. Gmail ignores periods in usernames. It makes

dedication of specific office space to particular attorneys

no difference whether the username contains multiple

and staff. But despite those new experiences, some old

periods or no periods because Gmail parses only the letters

threats and issues persist.

and numbers in the username. Mail to john.sullivan, .john..

Zoom: By now, many may have earned a Scout merit badge in Zoom. Life in the Zoomiverse is a new experience. We have seen webinars and columns suggesting ideal ways to use Zoom. We may not have immediately absorbed all that wisdom, but this is a learning experience. Some key pieces of advice have not been universally adopted. In any large Zoom gathering, muting audio is highly advisable; yet we have heard dogs barking, doorbells ringing, and even toilets flushing. A touch of the spacebar will always unmute a participant when there is a need to speak or comment.

sullivan, and johnsullivan will all end up in the same mailbox.

Masks and Face IDs: The next time we meet, we may still be masked. Many have relied on Face ID as a fast way to log on to their mobile devices. Unfortunately, a mask may fool your phoneâ&#x20AC;&#x2122;s recognition of your face. Apple and Google have attempted revisions of their software to eliminate this problem, but the wiser course may be to revert to a passcode or password.

Working at Home: Many attorneys have been working at home and may continue to do so. That evolution introduces additional cybersecurity challenges we must

Zoombombing remains a concern. Unwise reuse of

confront and resolve. The initial concern might be the

meeting IDs can open any Zoom meeting to intruders, and

required login credentials of attorneys and staff. Lawyers

robodialing can easily penetrate a meeting ID. Much like

may have tolerated simple passwords for office machines,

two-factor identification, adding a password to an invite

but continued use of those deficient passwords for remote

remains excellent advice.

access is unwise.

Zoom itself has acknowledged these security issues

Although most email is encrypted in transit, the movement

including the need for encryption. Zoom has rolled out

of email and documents from a home computer to an

regular updates to its software, most recently to version

office computer or server may include intervals at rest

5.0 (or higher). On May 31, all Zoom applications using

where the files may not be encrypted.

SAN DIEGO LAWYER

July/August 2020

Cybersecurity Insurance: If you have wisely obtained

only prevent the depositing of cookies and other data onto

a policy, review it for coverage of work-at-home risks.

our computers by the visited website.

For instance, some policies only cover losses related to devices owned by the “named insured.” If anyone is using

Cloud Breaches: Verizon recently released its 2020

a home computer, tablet, or mobile phone, there may not

Data Breach Investigations Report that analyzed over

be coverage.

150,000 incidents in the prior year. Many lawyers have turned to cloud-based software and cloud storage in lieu

Hacking and Malware: These threats continue to

of software, operating systems, and data storage in their

increase. By now, most know lawyers are soft targets.

offices. In their recent report, Verizon found that cloud

A global cybersecurity firm recently reported that, despite

breaches were now almost 25% of total breaches. Yet one

excellent cybersecurity standards, 15% of sampled law

thing hasn’t changed: three-fourths of those resulted from

firms showed signs of compromised networks. Another

breached credentials. Again, the quality of our passwords

study found that 61% of small/medium-sized businesses

and passphrases is necessary to maintain the security of

had experienced cyberattacks in the past 12 months.

the information and data of our offices and our clients.

The concerns are serious enough that the New York State Bar has recently imposed a requirement of one

Bottom line, in the words of the French writer Jean-

cybersecurity MCLE hour every two years. We should do

Baptiste Alphonse Karr: "The more things change, the

all we can to harden our systems to the max.

more they stay the same."

Incognito Mode: Our internet browsers have incognito modes and private windows. We might use those modes to investigate facts or companies, believing we are searching stealthily. However, those modes don’t mean

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

that our internet activity can’t be tracked. Basically, they

Kathryn Karcher’s perfect pitch will bring your client’s appeal home. Hire her, before the other side does.

karcherappeals.com Certified Appellate Specialist, Board of Legal Specialization, State Bar of California

VIRTUAL MEMBER BENEFIT EXPO & APPRECIATION FEST The San Diego Bar Associtian's MEMBO! event was a week of info-packed webinars designed to help your practice, presented by experts from our legal community and our Member Benefit Partners — leading providers to the legal industry — plus games, opportunity drawings, and prizes. You can catch up on all the excitement from MEMBO! by viewing the recordings at www.sdcba.org/memboreplay.

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BUSINESS OF LAW by Renée N.G. Stackhouse

STEPS FOR RECOVERING FROM THE IMPACT OF COVID-19

n the last few months, business-owner lawyers have

STEP 3: WORK TO STAND OUT

had to transition to working from home, keeping our

If you have extra time right now, make sure your website and

businesses running, figuring out how the court closure

social media are accurate and send the messages you want

affected our work, keeping our clients up to date, bringing

to potential clients and referring colleagues. Start writing or

in new clients, and balancing family demands. Many of us

recording blogs, study for the board specialization test, get

are exhausted. Some lawyers are contemplating closing

that realtor license, take that online course, start learning

their businesses, changing their practice area, or retiring.

that language, or even just read that Trial Guides book. Every

Those may be good options. But they are not the only

achievement not only helps you stand out, but makes you a

options. Here are five steps for rebuilding after COVID-19:

better lawyer.

STEP 1: STOP THE BLEEDING You will not be able to make calm, rational decisions about your business if you are financially bleeding to death. Look into the CARES Act, Paycheck Protection Program, and any business interruption claims you may have. Go online to see resources available to businesses from the City of San Diego, State of California, and Small Business Administration (SBA). Review your existing contracts to see which have no, or acceptable, cancellation fees. Review your repetitive

STEP 4: THINK ABOUT COOPERATIVE WORK There are two kinds of people out there in the legal community right now: those who are drowning in work and those who need work. While you must make sure you follow the California Rules of Professional Responsibility, there are a lot of opportunities for people to come together to be successful. It may be as simple as making sure people know to refer cases to you in a certain area of law or bringing in a colleague to help on a case that is taking up too much of your time.

monthly expenditures to identify necessary expenses

STEP 5: REMEMBER TO TREAT EVERYONE WITH CARE

and cut the rest.

The world feels like it’s on fire right now. In some places, it is. People are hurting. Make sure to slow down enough so that

STEP 2: CONTACT PAST AND CURRENT CLIENTS Let your network know you’re open and that you’re available to answer questions or provide referrals to someone who can. The outreach is thoughtful and it could have the additional benefit of driving business to you. Invoice your current clients. You deserve to be paid for the

you can treat everyone — clients, colleagues, court staff, judges, co-workers, and YOURSELF — with care, kindness, and respect. Potential clients will feel your authentic concern. Your current clients will feel safe knowing they made the right choice in representation. Your colleagues will appreciate you. And you deserve it, too. At the end of the day, we are our business. We can’t be successful when we’re not caring for ourselves.

work that you have done. Email your latest invoice to your clients and provide them with options to pay such as cash, check, or credit card. Offer payment plans if necessary. The easier it is for them to pay you, the more likely you

Renée N.G. Stackhouse (renee@stackhouseapc.com) is a founder of Stackhouse APC.

will get paid.

SAN DIEGO LAWYER

July/August 2020

THE SAN DIEGO COUNTY BAR ASSOCIATION CONDEMNS RACISM AND VIOLENCE AGAINST COMMUNITIES OF COLOR AND IS COMMITTED TO WORKING TOWARD POSITIVE CHANGE June 3, 2020 — Community and inclusion are among the most revered core values at the San Diego County Bar Association. We acknowledge that racism and xenophobia continue to perpetuate the vastly disparate, unjust treatment and disrespect of people of color in our country. We are reeling from the recent acts of shocking brutality against the Black community, including the killings of Ahmaud Arbery, Breonna Taylor, and George Floyd. These events represent only a fraction of the inequities and acts of violence leveled against people of color. On behalf of our nearly 10,000 members, we condemn these acts and stand against racism and violence. These tragic events underscore the dire need for structural and systemic change throughout American society. It is not enough to simply denounce racism; we must all be anti-racist. We cannot be silent. The mistreatment of anyone based on race should not be tolerated in any circumstance. It has no place in our justice system. At the San Diego County Bar Association, we are actively working toward solutions to effectuate positive change in our profession and the justice system. We call on all members of the legal community to be leaders by making a personal commitment to equitable treatment and equal justice for all. Many in our community are hurting, and we stand united with you. We must listen and learn from people of color. As a society, we must be better and do better.

SAN DIEGO LAWYER

| July/August 2020

JUSTICE FOR ALL

AT ANOTHER AMERICAN RACIAL CROSSROADS

FINDING THE MORAL COURAGE TO ACT By Wilson A. Schooley

ou are part of a community not only of lawyers, but

In 2018, Black Americans accounted for 38% of unarmed

also of citizens. The ABA Model Rules of Professional

citizens killed by police, three times their percentage in the

Conduct provide: a lawyer is “an officer of the legal

population. These are not random acts by rogue cops. It is

system and a public citizen having special responsibility for

a structural pattern of institutional lethal force against a race of

the quality of justice.” ABA President Judy Perry Martinez

people.

said on June 5 that lawyers “have a special responsibility to address” injustices that exist “through laws that unjustly and

Black Americans live every day with the historical reality that

disproportionately impact people of color.”

white on Black racism is in America’s DNA. The minute-byminute struggle of living beneath the weight of entrenched

Your County Bar Association strode toward fulfillment of that

racial oppression is like breathing polluted air — it burns, but

responsibility on June 3 by issuing the statement that appears

you have to endure it with every breath, of every day, of every

on page 18 of this issue.

year you walk the earth..

As citizens and lawyers, we should feel the imperative of this

Civil rights progress since slavery has invariably been punished

moment to speak out. But as the statement suggests, we

with regression — two steps forward, one step back. Each

should also understand the history and reality that clearly

pairing of progress and plight has left suffering and a parade

show speaking out is not enough.

of martyrs in its wake. On August 28, 1963, the King of Love’s booming baritone lifted the nation, ad-libbing a jazz poem,

James Baldwin guides us: “If you don’t know what’s happened

less a speech than a divination of inspiration; barely two weeks

behind you, you’ve no idea what’s happening around you.”

after Dr. King’s I Have a Dream speech, on September 15,

To understand Mr. Floyd’s murder on May 25, 2020, and the

a Klan bomb killed four little girls at the 16th Street Church in

ensuing events, start in 1619, when 13 million people were

Birmingham. Fifty years later, the Black preacher’s words

stolen from their families, dragged from their beds, shackled

from that white podium in Lincoln’s shadow still roll down our

and starved for 8,000 miles across oceans, enslaved for two

cheeks. But we need to do much more than cry. We need to

and a half centuries, and terrorized and oppressed for 100

find the moral courage to act.

years more. We had slaves 150 years ago. African Americans have been free for less time than they were enslaved. The economic engine of the U.S. was built on their backs. For a century, revisionist racism denying this reality entirely was patent on the pages of everything written in the U.S. Now, 150 years later, Black American wealth is one-tenth that of white wealth. African Americans are twice as likely as whites to be unemployed, and earn 25% less. Whites get 36% more callbacks on job applications. Black drivers are 30% more likely to be pulled over by police. Black citizens are 13% of the population but 40% of the prison population. A 2012 study found a majority of doctors have “unconscious racial biases” against Black patients. Black home ownership is at an all-time low — 42% compared to 72% for whites. Then, there are the institutional killings. African Americans make up 13% of the population. But in 2015 they accounted for 26% of those killed by police; in 2016, 24%; and in 2017, 23% — nearly twice their rate in the population.

A century after “emancipation” and half a century after the Civil Rights Movement, too much of the Dream remains unfulfilled. John F. Kennedy said Americans do things “not because they are easy but because they are hard.” He was talking about going to the moon. But his words surely apply to reaching the promised land of equality on earth. We are at a racial crossroads, yet again. This is one of those historical moments that feels uncomfortably near the edge of the chasm that was the Civil War and Reconstruction. We have a moral obligation to seize it, and finally change our American racial paradigm to match our democratic ideals.

Wilson A. Schooley is a reformed big firm trial lawyer and current appellate specialist practicing primarily civil rights and indigent criminal defense law. He is a professional actor, published author and photographer, Immediate Past Chair of the ABA Civil Rights and Social Justice Section, member of the ABA Journal Board of Editors, Delegate to the ABA House of Delegates, on the Coalition for Racial and Ethnic Justice, and member of the SDCBA Board of Directors. SAN DIEGO LAWYER

July/August 2020

ONE MAN’S VIEW By Judge William McCurine, Ret.

he date was April 29, 1992. Earlier in the day, a jury

have a talk with their children about the need to respect

had just returned a verdict in the Rodney King state

police, their elders, school officials, etc. The talk in the Black

court case. After seven days of deliberations, the

community is designed to make sure our sons are not killed.

jury acquitted all four officers of assault and acquitted three of the four of using excessive force. I was stunned and sank

Despite the outcome of the federal verdict in the Rodney

into a deep depression. I knew that this time police brutality

King case, police brutality continues to plague the Black

would be recognized and punished. The video evidence was

community. But now for the first time since Rodney King,

so clear. How could a jury return such a verdict?

my hope has been rekindled. Now, for the first time, it seemingly appears that the larger society finally

My wife and I had invited a group of Black high school

understands how strong negative racial attitudes continue

students to accompany us as our guests for the Lamb’s

to break the heart, but not the will, of an entire community.

Players Production of To Kill a Mockingbird. Our tickets were

For years, African Americans have been frustrated because

for the evening of April 29, 1992. I told my wife I was too

the larger society has not believed us. Too many people

depressed to go. She insisted that I had to go. We had invited

have thought that we have exaggerated the problem of

these young Black students and we had to be with them.

police brutality or that the victims brought the problem

I sequestered myself briefly to pray. I needed to honor these

upon themselves in some way. But now many people of

students and we needed to continue to press forward.

goodwill are asking, what can we do?

By the end of the play, my heart was uplifted. The four officers were later tried in federal court in 1993. Two of the

First, police are too prone to escalate conflict, not to

officers were found guilty and had to serve prison terms.

defuse it. Officers need to be trained to de-escalate

Two were acquitted.1 There was still hope.

situations. Police departments that effectively train and enforce de-escalation need to be rewarded with better pay

The continuing murder of young Black men by police officers

and benefits. Furthermore, the highest pay and prestige

began to strangle that hope. When our two sons reached

in a police department should not be just for those who

their pre-teens I sat down with them and had the talk.

are trained for military-style operations like SWAT teams,

Every Black parent has had the talk: “We need police, but

but also for officers skilled in defusing potentially volatile

beware of them. If a policeman stops you for any reason,

situations. We also need to curtail the inflow of military-

make sure you are in public view as much as possible, move

style weaponry into police forces. Such force is far less

very slowly, announce what you’re going to do before you

frequently needed than solid, community-oriented policing.

do it (e.g., ‘I’m reaching for my driver’s license.’) Do not argue

Defunding is not the answer. It can have disastrous effects

with them. Be respectful.” I have had this talk repeatedly with

for all people, and I believe it would be particularly hurtful

our sons because I knew what could happen. This is not the

to the Black community. Defunding would also tend to drive

simple talk about respecting police. Every parent should

away the better police officers. I would rather increase the

SAN DIEGO LAWYER

July/August 2020

police budget for the express purpose of bringing into the department professional social workers and community builders. They would be unarmed police officers enjoying the same status and benefits as regular police officers. Finally, police departments need to do a far better job of (a) screening applicants and (b) weeding out officers who cannot, or do not, comply. This goal cannot be achieved without somehow reducing (not eliminating) the power of police unions, which are so resistant to reform. Second, society should not

“We need to treat all people with respect and dignity. We need to consider all people to be as good and well-intentioned as we see ourselves until they prove otherwise. ”

demonize police. We need capable, community-minded police officers to maintain peace and order for everyone. Many police officers have a sincere desire to serve their communities. Like all of us, they want their communities to look up to them.

Third, many of the police shootings of young Black men arise when there is no crime in progress, involving petty crimes, traffic stops, or non-capital offenses. The widespread existence of negative racial attitudes affects civilians as well as police who are only a microcosm of the overall society. As a result, too many police and civilians view Black people as violent threats regardless of the actual situation. For example, two civilian white men (Gregory and Travis McMichael, father and son) confronted Ahmaud Arbery while he was jogging in an Atlanta neighborhood. The McMichaels told the police that they saw Arbery jogging and immediately thought he was a burglar, even though Arbery had no burglary tools or contraband on his person. Arbery found a pickup truck blocking his path. A white man was standing beside the open driver’s seat door, brandishing a gun, and another

Fourth Amendment. The U.S. Supreme Court in Graham v. Connor, 490 U.S. 386 (1989) said that the reasonableness of an officer’s use of force “must be evaluated from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” At 396. Graham instructed courts to defer to the judgment of the officer because police officers are often forced to make split-second judgments about the use of force in tense, rapidly evolving circumstances. At 396-97. However, it appears that deference has swung so far as to render verdicts against police officers almost impossible. In wrongful death cases like George Floyd's, where the police officer was not forced to make a split-second decision and the offense is a misdemeanor, the deference the Supreme Court requires is unnecessary and should be eliminated. Changing legal standards might help, but the persistent problem remains negative racial attitudes that cause civilian and police encounters with Black people to escalate into tragedy. The vast majority of laws today uphold the rights of all people regardless of race. Despite salutary laws, police brutality continues.

white man was standing in the truck bed. Arbery attempted to go around the vehicle. Within minutes, Arbery was dead

We need an improved police culture. We also need

from a shotgun blast. District Attorney George Barnhill

people of goodwill to teach their children, co-workers, and

described Arbery as the aggressor and announced that the

colleagues to honor all people. What does that look like?

shooting was “justifiable homicide.” Despite video

We need to treat all people with respect and dignity.

evidence,the Atlanta police did nothing for weeks until

We need to consider all people to be as good and well-

public pressure forced the Public Prosecutor to charge the

intentioned as we see ourselves until they prove otherwise.

McMichaels with murder and aggravated assault. I look forward to the day when our own children can have a In 2012 George Zimmerman, a neighborhood watch

different talk with their children about police. “Respect and

coordinator, felt free to confront 17-year-old Trayvon Martin

obey the police. They are here to help you, and they might

who was walking in a gated community where his father

even save your life one day.”

lived. Zimmerman’s defense was that Trayvon was wearing a hoodie. Within minutes, Zimmerman shot and killed an unarmed Trayvon Martin in “self-defense.” The jury acquitted him. After the verdict, then President Obama said:

1. In a separate civil lawsuit in 1994, the City of Los Angeles awarded Rodney King $3,800,000 in damages.

“Trayvon Martin could have been me, 35 years ago." There is nothing inherently wrong with the judicial doctrine of qualified immunity or with the objective reasonableness standard in adjudging the use of excessive force under the

Judge William McCurine, Ret. was appointed a Federal Magistrate Judge for the Southern District of California in 2004 where he served for over 10 years. Prior to the bench, he was a civil trial attorney representing plaintiffs and defendants for over 30 years.

SAN DIEGO LAWYER

July/August 2020

DISTINGUISHED LAWYER MEMORIAL RECEPTION

Andrew S. Albert

October 14, 2020 5:30 p.m. - 7:30 p.m.

San Diego Central Library 330 Park Blvd. San Diego, CA 92101

www.sdcbf.org/dlm20 Space is Limited 619-231-7015

Craig D. Higgs

Judge David Bar�ck

Roberta R. Sistos

Judge Leollia “Leo” Valen�ne, Jr.

Michael T. Thorsnes

Donald R. Worley

Please join us in recognizing these individuals of the San Diego County Bar who have been inducted into the 2020 Dis�nguished Lawyer Memorial. Each individual demonstrated superior skills and commitment to the community throughout their signiﬁcant careers and will now be honored with the placement of a permanent plaque featuring their portrait in the Hall of Jus�ce Courthouse and a recep�on on October 14, 2020 at the San Diego Public Library. To make a contribu�on on behalf of a past or present honoree or to make a general dona�on to the Founda�on, please visit: sdcbf.org/donatedlm. In 2019, the Founda�on awarded $401,000 to 21 non-proﬁt organiza�ons that provide access to jus�ce for people and communi�es that are most impacted by poverty, abuse and discrimina�on in San Diego County.

info@sdcbf.org

sdcbf.org

ROXY IS BLACK By Roxy Carter

y mom is from the Philippines and my dad was a

truck that cut him off circled back on him. Tragically, the

Black man from the South. As a child, I heard my

second vehicle for him was not a bubbly friend, but an angry

extended family repeat the Filipino superstition

foe. I don’t know if I can ever put into words how frightening

that craving chocolate when pregnant is bad luck because it

it is to realize how close you or your children may come to

means your baby will have dark skin. I learned my first lesson

an early and unjustified death at any moment for no other

in race at four years old: dark skin is not desirable. In fourth

reason than someone hating your skin.

grade, a classmate described me as “the Black girl.” I cried and told the teacher on her, because I thought it was an

That night, I was socializing with colleagues and recounted

insult. The teacher confirmed my first lesson in race and

the trauma I experienced that morning. I was met with blank

indulged my complaint, explaining that calling me “Black”

stares and an abrupt change of topic to something frivolous

was unacceptable and she should have described me by the

and unrelated. My colleagues had “put me in my place” and

bow in my hair. I spent the next several years blissfully

confirmed my second lesson in race, letting me know my

allowing myself and others to be “colorblind” about my skin

acceptance into the circle was conditioned on my silence on

color. I’ve heard others say they feel they are expected to be

these unpleasantries.

silent on their struggles as a Black person or experiences with racism and I, too, have felt that pressure to be silent lest

My two learned lessons in race — which, by the way, are

I be accused of “pulling the race card,” “using the Black card,”

very wrong on so many levels — are the reason I hesitated to

or “adding to the divide.” Thus, I had been taught my second

write this article. What would the legal community think of

lesson in race: The key to surviving and being accepted in a

me if I remind them that I am Black? How would that impact

white world is to stay silent on uncomfortable race issues

my reputation if I write about “unpleasantries”? Will people

and allow everyone to feign “colorblindness.”

still respect my lawyering skills and my dedication to the Bar Association if they see my vulnerabilities? Truthfully,

In June of 2017, I was waiting for my friend and realtor on a

because I sit on the board of the SDCBA and was specifically

sidewalk in Clairemont to view a condo. While I was waiting,

asked to contribute this article, my dedication to the Bar

two middle-aged white men in a white pickup truck pulled

meant I would dutifully comply with the request, despite the

up alongside me in the street, hollering “Hey, Broccoli-head!”

painful answers to those questions.

and “Hey, Obama!” then finally “Hey, [n-word]!” I kept my head down and slowly continued to stroll in the direction

Even I, as a Black woman, still need to unlearn some lessons

I had been headed toward the condo. The two men then

in race and put in work to address my own covert racism and

pulled their pickup truck into the driveway just in front of

implicit bias. I hope knowing that makes it safe for those who

me, blocking the sidewalk so I couldn’t continue moving.

do not identify as Black to also take a look inside, identify

Again, I kept my head down, kept staring at my phone and

lessons in race that need to be unlearned, and address any

slowly turned away. I remember thinking, “If they have a

of your own covert and implicit patterns. I believe if we each,

gun, I am done. This is it.” Thankfully, they eventually drove

individually, make that introspective commitment, we will

away. Shortly thereafter, a car pulled up from behind me

honor the Constitution we’ve sworn an oath to uphold and

and honked. My heart stopped and my stomach dropped.

finally achieve true freedom, equality, and justice for all.

I turned around and it was my bubbly realtor, and I immediately broke into tears. Looking back now, I imagine that Ahmaud Arbery felt a similar stomach drop when the

Roxy Carter (RoxySDCBA@gmail.com) is an environmental lawyer and serves on the SDCBA Board of Directors.

SAN DIEGO LAWYER

July/August 2020

THANK YOU TO OUR PATRON & FRIEND MEMBERS The SDCBA gratefully acknowledges the generous commitment provided by members who support our community at the Patron and Friend membership levels. You can become a Patron or Friend member when you activate or renew your membership online. Patron members enjoy unlimited complimentary access to all SDCBA events and programs, including all CLEs. Learn more about Patron member benefits here: www.sdcba.org/patronmembership. For more information, please contact our Member Services Department at (619) 231-0781 x3505.

PATRON MEMBERS FROM THE CO-EDITORS: As lawyers, we are angered and horrified at video of a police officer — sworn to protect and serve — kneeling on George Floyd’s neck; as human beings we grieve with his

Marc D. Adelman

Stephen M. Hogan

Doc Anthony Anderson

Richard A. Huver

Mylinh Uy Arnett

Fred C. James

Jane Allison Austin

A. Melissa Johnson

Hon. Victor E. Bianchini (Ret.)

Carla B. Keehn

Jedd E. Bogage

Garrison “Bud” Klueck

Connie Broussard

Don S. Kovacic

James A. Bush

Steven Henry Lorber

family and the families of Ahmaud Arbery,

Adriana Cara

Garrett Marshall

Breonna Taylor, and all who have suffered

Jose S. Castillo

Lilys D. McCoy

brutality or indignity because of the color

Andy Cook

Jillian M. Minter

Steven T. Coopersmith

Raymond J. Navarro

Ezekiel E. Cortez

Virginia C. Nelson

of their skin. We are privileged to co-edit this magazine — a gathering of words and images intended to inform, convey ideas, and stimulate thought. But given what we’ve witnessed, and the sustained national and international reaction, are words and images enough?

Taylor Darcy

David B. Norris

Warren K. Den

Anthony J. Passante

Thomas M. Diachenko

Kristin Rizzo

John A. Don

Michael J. Roberts

William O. Dougherty

Ana M. Sambold

Alexander Isaac Dychter

Wendi E. Santino

Matthew J. Faust

Thomas P. Sayer

Sergio Feria

Johanna S. Schiavoni

As lawyers we enjoy special privilege in

Nicholas J. Fox

Pamela J. Scholefield

our community. With privilege, however,

James P. Frantz

Khodadad Darius Sharif

Jennifer French

Renée N.G. Stackhouse

comes responsibility. Does not that responsibility now demand that we move beyond words to action — to become involved however best we can to confront the racism that has long permeated much of our society, including parts of our profession and the justice system itself? We call on our fellow lawyers and judges

Erin M. Funderburk

Todd F. Stevens

Douglas A. Glass

Christopher J. Sunnen

Richard A. Golden

Genevieve A. Suzuki

Alvin M. Gomez

Kimberly Swierenga

Camille Gustafson

Amanda L. Thompson

Charles R. Hayes

Thomas J. Warwick

Van E. Haynie

Andrew H. Wilensky

Matthew C. Hervey

Karen M. ZoBell

to find avenues of engagement, to move beyond condemnation, and take concrete steps that effect change, lasting change, in the institutions to which we belong and which this community so vitally needs.

Julie and Ed Co-editors of San Diego Lawyer 24

SAN DIEGO LAWYER

July/August 2020

FRIEND MEMBERS Rochelle A’Hearn

Mark Kaufman

Laura Ashborn

Randall E. Kay

Steven Barnes

Marguerite C. Lorenz

Linda Cianciolo

Christine Murphy

David B. Dugan

Anne Perry

Hon. Bonnie M. Dumanis (Ret.)

Kristi E. Pfister

Susan K. Fox

Stella Shvil

Ronald Leigh Greenwald

P laces We've Been

We grab our car key fob, train ticket, boarding pass, passport. We’re off. Conference, deposition, negotiation, hearing, family visit, or vacation. As lawyers we’re both compelled and privileged to travel. We see other places, cultures, and people. We have the opportunity to appreciate both the diversity and connectedness of our world. Post-pandemic, that life will return. In the meanwhile, here is a photo essay from some of our members of PLACES WE’VE BEEN. Enjoy.

East and Southern Africa – Edward McIntyre

The wilderness of East and Southern Africa offers a rare opportunity to experience close-at-hand the magnificence of our natural world as animals, for whom it’s home, allow us to glimpse them go about their daily lives. We tip-toe in — uninvited, but not unwelcome, guests. A treasured intimacy.

Serengeti, Tanzania

Mashatu Game Reserve, Botswana

Mashatu Reserve, Botswana

Shanghai, China – Julie Houth Shanghai is China’s biggest city and global financial hub. Top sights include the (1) Yu Garden, a winding classical garden in the bustling city; (2) The Bund, the famed waterside walkway with colonial-era buildings; (3) the Oriental Pearl TV Tower, the iconic tower with city view; and (4) Nanjing Road, Shanghai’s main shopping street. Shanghai is also known as “The Paris of the East."

The Bund

Yu Garden

SAN DIEGO LAWYER

July/August 2020

P laces We've Been Bryce Canyon National Park & Glacier National Park

Punjab, India

Devinder Hans

Visiting Sri Darbar Sahib, also known as Harmandir Sahib and the Golden Temple, the most revered site in Sikhism, is often meditative. It was more so on this occasion, concluding a day-long journey that began at dawn on a dirt road in a village surrounded by wheat fields.

Bryce Canyon National Park

Sri Darbar Sahib Glacier National Park

Paris, France

Renee N.G. Stackhouse

Musée d'Orsay

Eiffel Tower

A whirlwind trip to Paris in partnership with the UCSD Extension Sorbonne Winter Symposium global legal conference left evenings free to explore the City of Lights! The Eiffel Tower and the Musée d’Orsay are must-sees. It was during this trip in 2019 that our client was pardoned by the President of the United States for alleged war crimes. What a trip!

Turkey – Camille Guerra Turkey is my gateway to trips to the Balkans, Middle East, and the Caucasus. In September 2019, I went to Turkey specifically to visit Gobekli Tepe, which is located near the border with Syria. On the way, I stopped in Cappadocia, located in central Turkey. It’s known for its “fairy chimneys,” which resulted from erosion of the rock formations.

Mount Nemrut

SAN DIEGO LAWYER

Gobekli Tepe

July/August 2020

Hagia Sophia, Instanbul

P laces We've Been Yosemite, California – Whitney Hodges Often the most scenic views are in our own “backyard.” In the fall, I had the opportunity to visit Yosemite for the CLA – Environmental Law conference. From the ancient sequoias, Tunnel View, and the granite cliffs of El Capitan and Half Dome, this national treasure offered nothing but beauty and serenity.

Sequoia tree

Glacier Point

Yosemite Valley

Rome, Italy Michael Olinik

Three years after starting my own firm, I was able to go to Europe, which included a stop in Rome. The Colosseum was calmer than the Hall of Justice on motion day, thunderstorm clouds guarded the temple of the Vestal Virgins, and the Trevi Fountain called for my Euros.

Trevi Fountain

Colosseum House of the Vestals

Xitang, China – Julie Houth Xitang is an ancient water town with over a thousand years of history in Jiashan County, Zhejiang, China. It has 104 bridges, 122 ancient lanes, and long covered waterside walkways unique to the town. It became famous because Mission: Impossible III was filmed there.

Xitang stone bridge

Xitang ancient lane

SAN DIEGO LAWYER

July/August 2020

P laces We've Been

TRAVELING DURING THE PANDEMIC By Phillip Stackhouse

usually travel over 130,000 miles a year, both domestically and internationally, because my military defense practice takes me across the globe. This year, I

stopped traveling in March when COVID-19 and its risks first became known, and did not travel again until May 17. Unlike the civilian community in California, the military never shut down. So, when my client stationed at Fairchild Airforce Base

Boarding Once boarding started, EVERYONE was required to have a mask or face covering. Boarding is a little different, with the flights boarding from the back to the front to minimize people passing by one another.

in Washington State had an administrative hearing set, I

On Board

needed to travel. Here is what my experience was like:

Aboard the flight, there were no services. I was given a little plastic bag with a small bottle of water, a small snack, and

Limited Flight Times

a tiny Purell wipe. The flight was more populated than I

The first big change in travel was that there were fewer

expected, somewhere between one-third and half full.

flights and very limited flight times. My flight out of San Diego to Spokane, Washington had to be very early

Once I returned home, the question was “Do I have to self-

or very late. I opted for very early.

quarantine? And if so, for how long?” My research showed that it would be wise to do so. According to the CDC and

Masks

the WHO, the respiratory symptoms of COVID-19 typically

Even though masks were required in California, not all

appear an average of five to six days after exposure to the

travelers were wearing one. Disappointingly, many not

virus, but may appear in as few as two days or as long as

donning a mask were airline employees and pilots waiting to

14 days after exposure. We settled on a seven-day self-

board Delta flights. All TSA officers were wearing masks.

quarantine, with temperature checks every day. I’m happy to

TSA works the same, but you do have to pull your mask

report that two-plus weeks later, I don’t have any symptoms.

below your chin so they can verify your identity. The trick is making sure you remove your mask and put it back on

Ultimately, I would rather be home (regardless of the virus),

appropriately without transferring contaminants that may be

but I must travel for work to keep the lights on. I’m certainly

on the front of your mask.

not what I would consider part of the essential personnel class, but when court is called into session, lawyers are

TSA PreCheck

essential to their clients and their clients' future.

TSA PreCheck isn’t open, but TSA gives PreCheck travelers a card so you don’t have to remove your jacket, belt, or shoes.

Note: TSA updates its rules for travel during the pandemic

However, computers and toiletries must come out and go

at www.tsa.gov/coronavirus so make sure to visit the site

in the bin. TSA has also increased the size of carry-on hand

prior to any travel for the latest info.

sanitizer; you can bring up to a 12-ounce bottle with you. Other liquids are still limited.

Distancing After leaving TSA screening, the concourse was more crowded than I expected, not the ghost town you see posted on social media from March and April 2020. There’s space to find six feet of bubble, but I can envision that being a problem soon as many didn’t follow or enforce the six feet of distancing.

SAN DIEGO LAWYER

July/August 2020

In California, Phillip Stackhouse limits his practice to Military Criminal Defense under the Uniform Code of Military Justice, federal security clearance matters, U.S. military discharge upgrades, and U.S. military record corrections. His military practice takes him around the world representing servicemembers. He can be reached at stackhouse@militarydefender.com.

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CONFERENCE LOCATIONS AND THE TRANSITION TO VIRTUAL By Julie T. Houth

egal conferences and other legal events can be

at its headquarters in Chicago. This year, the Annual

a valuable investment in a person’s legal career.

Meeting will transition to an online virtual meeting. Before

Conferences can provide an array of opportunities

ultimately reaching this decision, ABA President Judy Perry

that include access to Continuing Legal Education (CLE)

Martinez said, “[They] identified, analyzed, and considered

programs that satisfy bar license requirements, a tax

the impact of various factors that would influence the

deduction for attendance, and a really nice break from the

decision to hold an in-person meeting in Chicago, starting

daily grind, especially when the location of the conference

with the current State of Illinois shelter-in-place order

is considered a vacation destination.

through May 30. Other factors include air travel limitations and self-quarantine orders for travelers along with social

A good conference is also a chance to connect with other

distancing guidelines that are expected to remain in place

lawyers and legal professionals who share interests or

throughout the summer.” This year, the ABA Annual Meeting

practice areas, and they can be a source of case referrals.

is complimentary to ABA members, which is something that

Affordability often determines the level of attendance at a

has never happened. This will hopefully give lawyers who

conference. A way to defer costs is through a tax deduction

are ABA members the opportunity to virtually attend this

and some sort of funding provided by either a person’s firm

conference to explore the possibilities and benefits of

or a bar association.

legal conferences.

Some of the best locations for conferences that are also

By transitioning to a virtual conference, the event itself can

considered vacation destinations from the American Bar

still take place, but the experience will most certainly be

Association’s (ABA) various divisions include (1) New York,

different. Many other conferences and events have turned

New York; (2) New Orleans, Louisiana; (3) Honolulu, Hawaii;

virtual as a precautionary step for the health and safety

(4) Miami, Florida; (5) and San Juan, Puerto Rico. Legal

of foreseeable attendees, their families, and staff, while

conferences located in smaller, less-visited cities also allow

still providing legal programs and hosting calendared

lawyers and legal professionals to travel and explore cities

executive meetings.

they wouldn’t normally visit. During a bar year for most bar associations, there are set events and conferences that are traditionally placed on the calendar, but the year 2020 has been different. The COVID-19 pandemic has really shifted events around the world. Legal

These are certainly unprecedented times in the legal profession and the world, but virtual legal events can still provide a welcoming and beneficial environment that can help us all navigate these uncharted waters together.

conferences and events since the pandemic have resulted in them being postponed or outright canceled. One of the most heavily attended conferences is the ABA

Julie T. Houth (jhouth@rgrdlaw.com) is a staff attorney at Robbins, Geller, Rudman & Dowd LLP and co-editor of San Diego Lawyer.

Annual Meeting during the summer, which is often hosted

SAN DIEGO LAWYER

July/August 2020

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LEISURELY 'LAWYERING' ABROAD By Jeremy M. Evans

piece of your heart is left overseas when you travel.

If the reader is thinking about joining a study abroad

On second thought, when overseas, a traveling

program in law school (or during any other schooling), or

heart grows with one’s mind. It is also quite possible

traveling in general, take advantage of the opportunity.

that both of those statements are true because one leaves

You never know when opportunities will be provided to you

relationships, but takes memories with them when traveling.

and traveling makes you a more well-rounded person. It is

Often, the traveler never knows whether or not they will

also a little easier (or maybe more fun) to earn law school

return one day.

units toward your juris doctor degree while traveling.

While in law school, I wrote the following in my journal about

As for stories, I remember getting stopped by the P.L.O.

traveling abroad and eventually published the words on my

outside Bethlehem before entering Jerusalem in Israel and

law practice website. It was so applicable that it is being

being worried because I left my passport in the King David

shared here:

Hotel. My beard and hair thankfully allowed me to look more

“Traveling to Nice, France and Hangzhou, China in the Summer of 2009 was the first of many things for me. It was the first time I had left the United States. First time traveling around the world (from Los Angeles, CA to Asia, to the Middle East, to Europe, to New York, NY, to Seattle, WA, and back to San Diego, CA). It was the first time living in a foreign country and meeting friends from around the world. More importantly, it was the beginning of life-long relationships with friends and colleagues that could only be strengthened while traveling in a foreign country.

like a local (according to my really nice taxi driver) and my negotiation skills from a baseball arbitration competition helped me through the proverbial gates. I remember traveling on what seemed like the longest escalator in human history in Prague, Czech Republic, on the way to watching an English dub of the film Public Enemies (2009) starring Johnny Depp, while everyone else read the subtitles. I remember seeing a young Chinese man sing “Hotel California” by the Eagles in Hangzhou, China, which was the best karaoke performance of the night. I remember seeing the sunrise while walking on the Great

If that is not enough, how about traveling to 19 countries and 29 cities in three months over the summer and getting eight units toward my J.D. and law school graduation? And for those inclined to know, study abroad programs are focused on cultural education (having fun and entertaining times) as much as they are toward the legal education. Why else would you travel halfway across the world to learn? The point is to immerse yourself in the culture, meet people, and to be challenged in living life to the fullest. Needless to say, the programs were an amazing experience and it was one of the best times in my

Wall of China. I also visited Austria, France, England, Ireland, Hungary, Belgium, Italy, Monaco, Switzerland, Taiwan, and Greece. During my stay in Greece, I met up with three beloved law school girlfriends and we enjoyed a great evening of dinner and dancing overlooking the Acropolis of Athens and the Parthenon. Life could be worse. I earned eight units toward my J.D. and gained a lifetime of friendships, memories, and experiences. Not bad for a kid who before then had never left the U.S. of A.

life. Those who traveled together still keep in touch and laugh about those experiences. It was also those experiences and challenges in traveling overseas that gave us additional confidence to go after our dreams, without fear or trembling.”

SAN DIEGO LAWYER

July/August 2020

Jeremy M. Evans (Jeremy@CSLlegal.com) is the Founder & Managing Attorney at California Sports Lawyer,® representing entertainment, media, and sports clientele based in Los Angeles.

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THE GROUNDED INTERNATIONAL LAWYER By Raúl Villarreal-Garza

“Let’s meet next Tuesday. I will be traveling and will be

The suit and tie that was already being phased out —

coming back to the office next Monday.”

especially in California — seems like a distant memory a few months into the pandemic.

This was a common message we delivered to our clients prior to the pandemic we are currently facing. From one

The good news is that everyone around the world is in the

day to the next, we suddenly stopped having in-person

same situation as us attorneys. For the most part, clients

meetings and traveling. Our homes became our offices. Those of us who practice in the international arena are more than accustomed to international travel. Our lingo includes “Global Entry,” “CBX,” “TSA Pre,” “passport control,” “airport lounge,” and so on. However, earlier this year, a new coronavirus that causes the disease known as COVID-19 changed so many things, including the daily use of these words. These words that once were so embedded in our

cannot travel either, and are also adapting to the new realities brought by the coronavirus. Tech-savvy attorneys and those attorneys willing and able to adapt to new technologies will be the winners in this novel environment. Fortunately, software developers around the world have made technology accessible and user-friendly. Personally, I found figuring out Zoom to be

routines are practically gone. The terms “home office” and

easier than figuring out how to change the time display in

“Zoom meetings” have arrived to replace the travel jargon.

my microwave.

COVID-19 is undoubtedly a game changer for the practice

The correct use of these technologies, however, is

of law, including international law. This disease seems to be

key. We are now having virtual first-time meetings and

staying here for the long run, and has already changed the

therefore, making electronic “first impressions.” If we

way many of us are practicing.

are experiencing difficulties using our new conferencing systems, that could create negative first and lasting

We know we cannot travel, meet, and network the way we

impressions from our potential clients, which could

used to. Social distancing policies around the world prevent

distract from our core legal abilities.

us from shaking hands, which used to be the universal symbol of reaching an agreement. So, what is next? It is as simple as the old saying: “Adapt or die.” These are the two options applicable to many attorneys, including international attorneys. If we cannot substitute the old fashioned travel routines and the in-person “meet and

COVID-19 has redefined how international lawyers live their lives and practice law. We lawyers, usually averse to change, will have to learn to live with these changes and will likely go on with our lives. History has shown what happens if we do not adapt.

greet” habits with effective technology, our practice will eventually die. Instead of hopping on a plane to visit clients overseas,

Raúl Villarreal Garza is an international tax partner at Procopio, Cory, Hargreaves & Savitch, LLP.

we now conduct teleconferences from our own homes.

SAN DIEGO LAWYER

July/August 2020

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SERVING JUSTICE — FAR AWAY By Edward McIntyre

ife is what happens when you make other plans. The pandemic was starting to force shutdowns worldwide right around the time that two attorneys, Elizabeth Hull

and Scott Smith, partners at Best, Best & Krieger, were teaching undergraduate law to students and young lawyers in Ukraine, some 6000 miles away from home. Thankfully, they were still able to give these young legal hopefuls a good introduction to Western-style law and ethics before the pandemic closed everything down. Both volunteered with The Leavitt Institute for International Development. Elizabeth taught law students in Kyiv — at Tara Shevchenko, Kyiv Mohyla and Aviation Universities — and in Kharkiv, near the Russian border — at Karazin and Yaroslav Mudryi National Universities. Her fellow teacher from the Institute was Judge Donald Eyre (Ret.), a Utah judge for 40 years. They taught the principles of testimonial evidence — direct examination, relevant evidence, and developing evidentiary foundation — to classes of nine to 20 students, preparing them for an eventual mock trial. Hence, a significant portion of the classes, taught in English but with an interpreter standing by, involved role play. In the evenings, Elizabeth and Judge Eyre — this being his third Institute trip to Ukraine — met with young lawyers to discuss our adversarial trial system. A judicial system designed to protect the rights of the accused, with an impartial judiciary and jury trials based only on reliable evidence, is relatively new in Ukraine, which lived so long under a Soviet style of criminal prosecution. As Elizabeth remarked, the Maiden Revolution occurred only in 2014 and the young lawyers whom she met were, but six years before, either supporting revolutionaries in Independence Square or in the Square itself demanding change and risking their lives. She found them driven to learn how a judicial system we take for granted works. The Leavitt Institute for International Development, founded in 2005 by David and Chelom Leavitt, is dedicated to spreading democracy, ethics, and rule of law in developing nations. As part of this effort, it brings legal professionals

SAN DIEGO LAWYER

| July/August 2020

P laces We've Been — experienced judges and lawyers — to teach democratic principles, rule of law, and ethics to foreign law students, primarily in Eastern Europe. Judges and lawyers in the United States and Canada lecture for two-week periods as part of a two-semester curriculum at universities and law schools in Moldova, Poland, Romania, and Ukraine. As two volunteers’ two-week segment ends, two new volunteers teach the next two-week segment. Each semester consists of five such two-week periods. The spring semester has a

"...the young lawyers whom she met were, but six years before, either supporting revolutionaries in Independence Square or in the Square itself demanding change and

sixth — for an international trial advocacy competition.

risking their lives. She found them

The course covers rule of law principles and ethics,

driven to learn how a judicial system

including introduction to common law, basic rules of evidence, jury trial principles, and other critical components

we take for granted works."

of an adversarial legal system. The Institute supplies all the teaching materials — textbook, case file, outline of each session, and material to be covered. The Institute arranges

and marshalled. The first semester had been devoted to

transportation to and from the country and in-country

the principles of the rule of law and the Western system

travel and housing. It also provides in-country staff and

of justice; the second, the practical application of trial

guides, typically program graduates, to shepherd and

techniques leading to a mock trial.

assist volunteers. In return, volunteers donate two weeks of their time and a tax-deductible $3,000 contribution to the

Scott first learned about the Institute through the BYU

Institute, a 501(c)(3).

alumni association and has wanted to volunteer for some while; this was the first year he had time available to

Elizabeth’s two-week portion of the program was to be

devote to the program and he hopes to participate again.

from March 8-21; because of the pandemic, however,

He found the law students and young lawyers’ enthusiasm

her time in Ukraine was cut short and she returned to

absolutely refreshing. “They care so much about law and

the United States on March 13. After an interruption, the

justice. As the first generation, they relish what we just

program — including the mock trial — continued on Zoom.

take for granted.”

She did get to travel for a week, to Moscow, St. Petersburg, and Riga, Latvia, before the program started.

The young lawyers with whom Scott met were from a broad cross section — judiciary, prosecutors, administrative, and

A former prosecutor in San Diego’s City Attorney’s office,

civil law, private practice — most a year or two in practice;

and an Assistant City Attorney for Chula Vista, Elizabeth,

the most seasoned, seven. While there, Scott and his

now a municipal law attorney, serves as general counsel

wife were able to travel to Krakow, Poland, and Lviv, a city

to various cities, water districts, and other entities; she

in Western Ukraine, whose historic city center is on the

also focuses her practice on economic development and

UNESCO World Heritage List.

housing issues. When her partner Scott Smith introduced her to the Institute’s program, her interest in teaching in

Scott, like his partner Elizabeth, is a municipal law attorney,

developing countries and housing opportunities presented

who has spent his career with Best, Best & Krieger. One

Ukraine as a unique opportunity. It turned out to be an

aspect of that practice is advising clients on ethics for

“incredible experience.” She has been invited to return.

public officials, a background that made him especially valuable to the Institute as he met with young Ukranian

Scott Smith was in Ukraine from February 21 through

lawyers serving in government positions.

March 9, teaching law students in Kyiv and Kharkiv at the same institutions as Elizabeth and meeting at night

For both Elizabeth and Scott, the reward of volunteering

with young lawyers. His fellow Institute teacher was a

was the fervor for the rule of law and impartial justice in the

solo practitioner from Montana, Bell Islands, a criminal

young people they met. “For them, there’s no going back.”

defense lawyer. Scott and Bell taught the first session of the second semester, so they focused on the elements of a case, explaining our system of justice and advocacy — a new concept in Ukraine — focusing on how a case is organized around a theme and how evidence is collected

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

SAN DIEGO LAWYER

July/August 2020

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VIRTUAL LAW SCHOOL By Alexandra Wallin

3LOL — A term I had heard classmates use to refer to 3L year. However, when I started 3L year, I did not realize it would eventually stand for “Learning OnLine.” Virtual law school stole the satisfied feeling of completing law school. Virtual classes were lonely at times. They signified just how much I would have to deviate from my plan, and they solidified that, due to the COVID-19 pandemic, an in-person July bar exam was highly unlikely.

screens, which would leave three

my classmates, professors, family

people waiting for each other to start

members, and the law school tap

the discussion. I faced a possibly

into their creative sides and adjust

even more nerve-racking form of cold

to the new normal. Professors

calling: Zoom cold calls. To properly

discovered new ways to maintain

represent the last three years of

a normal classroom discussion.

law school, I think a hypothetical

Student organizations hosted guest

to explain this situation is most

speakers and virtual happy hours.

appropriate. Imagine a normal cold

Journal boards trained incoming

call where you are asked to interpret

board members without face-

a Supreme Court Justice’s dissenting

to-face training. And law school

opinion. Keep the normal fear of

faculty found a way to celebrate

getting the answer wrong. Now, add

graduating 3Ls despite a delayed

a dash of heightened awareness that

commencement ceremony.

every word you say is recorded. Then,

Negative aspects aside, there were

you quickly realize that because you

Nevertheless, virtual law school was

many humorous parts of virtual law

are speaking and unmuted, your face

a different experience. My free time

school. I saw more of my classmates’

is now front and center on all of your

went from making plans to celebrate

pets on Zoom than I had on social

fellow classmates’ screens. Not only

graduation before starting bar studies

media. I became quite familiar with

will your classmates be watching you

to refreshing the State Bar of

my professors’ living rooms. I turned

as you reply, but they will be glancing

California’s webpage every hour to

my computer volume all the way

around and judging the room that

see if it rendered a decision about the

up to drown out the lawn mowers

surrounds you. Zoom cold calls

July bar exam. Rushing to campus

outside my window. I experienced

were personal.

early to make sure I made it to class on time quickly turned into making

awkward silences during breakout group discussions when half of the

Perhaps the most intriguing part

sure I finished crunching my carrots

group members would mute their

of virtual law school was watching

before signing into Zoom minutes

SAN DIEGO LAWYER

July/August 2020

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to splitting my computer screen

exactly what I envisioned and what

breaks during class went from

between my notes document and the

helped push me through those late

standing up or going outside to

Zoom screen. Even more significantly,

nights. 2020 might not have gone

walking to my kitchen to grab a

I had to figure out how to learn and

or will go according to my original

snack from the fridge. Waiting weeks

study in a way that was different from

plan, but what I learned from law

for my multiple-choice exam results

what I learned 1L year. I had to adapt

school and what these last few

became clicking submit and

to become a virtual law school 3L.

months reinforced is how to adapt

immediately receiving my score.

Virtual classes did not come with

and change my plan while still being

Needless to say, March was the

the same inspirational environment

successful. Having completed my

longest month of my life.

that sitting in a law school classroom

3LOL year, I recently entered the

surrounded by eager classmates

stage that has been sitting in the

Though virtual law school was quite

and an accomplished professor

back of my mind since day one of

different from normal law school

had. Online classes did not seem to

law school: the “BAR” study stage.

classes, there were some parts of law

foster the same type of discussions

However, given the uncertainty that

school that did not change.

that left me with a reminder of why I

lies ahead, this stage has a new

These aspects of law school are

decided to attend law school in the

meaning, too — “Best Adapt Rapidly.”

arguably so ingrained in the law

first place. Instead, I had to pivot. My

school experience that not even

inspiration came from my classmates

virtual school could change them.

and professors who were on the other

The deafening silence that arises

side of my screen adapting to the

between waiting for a fellow

new normal alongside me.

classmate to answer the professor’s question and the professor deciding

While the end of law school did

to cold call on someone did not

not end like I imagined it would,

change. Even though final exams

the feeling of accomplishment is

Alexandra Wallin (alexandrawallin8@ gmail.com) is a May 2020 University of San Diego School of Law graduate and will be a Fall 2020 Post-Bar Clerk with the San Diego County Public Defender Office.

were drastically different than the five other finals sessions I experienced, virtual final exams did not change the heartburn-inducing stress one gets right before starting an exam. Fellow law students stressing about how finals would be graded stayed exactly the same. After all, virtual law school involved the same people and pressures; the online aspect was the only difference. From the first day of law school, professors had taught us how to adapt — when faced with a new statute, new precedent, or an unexpected argument from opposing counsel. While these skills would surely be handy during practice, this toolbox we built throughout law school was even more applicable with the transition to virtual classes. There were standard adaptations I had to make during this transition. Virtual law school meant having to adjust to studying in the same place as where I attended class and took my final exams. I had to adapt

SAN DIEGO LAWYER

July/August 2020

COVID-19, CLIMATE CHANGE, AND ENVIRONMENTAL JUSTICE By Avneet Sidhu

he coronavirus (COVID-19)

get their economies back to pre-

technology has already improved

pandemic has caused

pandemic levels.

during the pandemic (therefore

numerous negative impacts

allowing for remote working and less

on daily life, public health, and the

Although the impacts of COVID-19 on

travel), equitable access to technology

economy. The impacts on the

air quality were temporary and not

remains an issue in many lower-

environment include suddenly

enough to keep global warming in

income communities and households.

clear skies over some of the most

line with the requirements outlined in

air-polluted cities and regions.

the Paris Climate Agreement,1 even

So, while dense, infill development is

Environmental lawyers and

the temporary respite from business-

being touted as a victory for climate

professionals recognize the parallels

as-usual provides an opportunity

change, consideration should be

between the impacts of the public

to evaluate what worked and if

given for impacts to public health

health crisis and climate change, and

those changes can be, or should be,

associated with closer quarters and

the land use planning, infrastructure,

sustained. Since 2006, state law has

less outdoor space. Since 2016, state

and systems required to effectively

increasingly incentivized new projects

law has required cities and counties

respond to both. On a practical level,

and policies that include denser infill

with “disadvantaged communities”3

the lockdown in response to the

development; reductions in individual

to incorporate environmental justice

pandemic provides a case study in

vehicle use; and/or increased or

(EJ) policies into their general plans,

support of existing policies directed at

improved public transportation. 2

as local government’s long-term

a reduction in transportation impacts.

Many of the changes made during the

blueprint for the community’s vision

On a policy level, the disproportionate

COVID-19 pandemic that contributed

of future growth. 4 “Environmental

impact of the pandemic (both the virus

to the reduction in emissions were by

justice” is defined as “the fair treatment

and the lockdown) on low-income

existing businesses, such as increasing

and meaningful involvement of

communities, minorities, women, the

remote working and decreasing in-

people of all races, cultures, incomes,

elderly, and those with preexisting

person meetings and business travel,

and national origins, with respect

health conditions, underscores the

which may encourage individuals

to the development, adoption,

importance of balancing policies

to make future operational changes

implementation, and enforcement

focused on climate change with

to reduce emissions from existing

of environmental laws, regulations,

environmental justice.

businesses, buildings, and uses.

and policies.”5 Examples of what

The abrupt reduction in daily driving,

On the planning and policy level, one

include: the equitable distribution

flying, and industrial output in

lesson learned from the pandemic is

of new public facilities and services;

response to the pandemic resulted

that efforts to increase public health

siting of polluting facilities to minimize

in a number of short-term physical

issues and to reduce GHG emissions

overconcentration in any one area of

impacts on the environment, including

have to be balanced with factors

health and safety hazards; siting new

a rapid, dramatic drop in greenhouse

like age, existing health conditions,

schools and residential dwellings to

gas (GHG) emissions worldwide.

income inequities, inadequate housing,

avoid proximity to industrial areas;

The positive impacts were short-lived,

employment opportunities and

and promoting livable communities

however, and the sharp decline in daily

availability, and racism, to ensure the

to maximize transit-oriented

emissions has already begun to shrink

policy does not marginalize vulnerable

development so residents minimize

as many nations open up in an effort to

communities. For example, while

traffic and air pollution impacts.6

cities and counties should consider

SAN DIEGO LAWYER

July/August 2020

Cities and counties that do not have “disadvantaged communities” are not

1. “Cut Global Emissions by 7.6 Percent

required to consider EJ policies in their general plans. Recent experience with COVID-19 impacts is perhaps the additional incentive we need to encourage voluntary consideration of EJ policies as general plans are updated and individual development projects are reviewed, as we strive to meet the state’s ambitious timeline for climate change and to protect against

other hazards that can lead to

Every Year for Next Decade to

negative health effects, exposure,

Meet 1.5°C Paris Target-UN Report,”

or environmental degradation.”

United Nations Climate Change,

The statute further defines “low-

November 26, 2019, https://unfccc.

income area” to mean “an area with

int/news/cut-global-emissions-by-

household incomes at or below 80

76-percent-every-year-for-next-

percent of the statewide median

decade-to-meet-15degc-paris-

income or with household incomes

target-un-report.

at or below the threshold designated as low income by the Department

2. One of the primary tools for

the impacts of the current, and future, health and financial crisis.

of Housing and Community

analyzing environmental impacts

Developments list of state income

is the California Environmental

limits adopted pursuant to Section

Quality Act (CEQA) (Public Resources

50093” (Gov. Code § 65302(h)(4)(C)).

Code §21000 et seq.) and the CEQA Guidelines (California Code of

Avneet Sidhu (Avneet@ GridLegal.com) is a Partner at Grid Legal, LLP, specializing in real property transactions, land use and development projects, and environmental review under the California Environmental Quality Act (CEQA). Avneet is the Chair of the Environmental/Land Use Law Section of the San Diego County Bar Association and a lecturer in business law at San Diego State University.

4. Government Code § 65302(h).

Regulations, Title 14 § 15000 et seq.). 5. Government Code § 65040.12(e). 3. “Disadvantaged communities” is defined in Government Code §

6. “The State of California General Plan

65302(h)(4)(A) as “an area identified

Guidelines (2017),” Governor’s Office

by the California Environmental

of Planning and Research, July 31,

Protection Agency pursuant

2017, http://www.opr.ca.gov/docs/

to Section 39711 of the Health

OPR_COMPLETE_7.31.17.pdf. As of

and Safety Code or an area

writing, OPR has not released the

that is a low-income area that

anticipated new Environmental

is disproportionately affected

Justice Guidance for General Plans.

by environmental pollution and

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CLIMATE CHANGE LITIGATION By Devinder S. Hans

n 2005, a petition to the Inter-American Commission

claim that deforestation and rising temperatures threatened

on Human Rights (IACHR) marked both the novel use

their constitutional rights to a healthy environment, life,

of human rights framework to address climate change

health, food, and water. The Supreme Court of Justice of

as well as the start of a broader wave of climate change

Colombia also ruled that the Colombian Amazon forest

litigation. Quixotically, Inuit from Canada and the United

has legal personhood and that the Colombian government

States sought to require the U.S. to limit greenhouse gas

had a resulting duty to protect it. In December 2019, the

emissions to protect their fundamental human rights,

Supreme Court of the Netherlands ruled that the state had

including their right to culture, property, health, life, and

a duty to protect its citizens from climate change under the

residence. The IACHR declined to address the petition, but nevertheless held a hearing to discuss the claims. As of June 2020, 1,596 cases involving climate change have been filed in 39 countries and eight regional and international venues. The vast majority of these cases have been in the United States (1,213), followed by Australia (97), United Kingdom (58), and European Union (55). Plaintiffs commonly include governmental entities and private citizens. However, corporations have also looked to the courts to challenge regulatory processes addressing carbon emissions and climate change mitigation, as well as to block the development, application, and enforcement of legislation. Defendants generally are oil companies, energy

European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). However, in May 2020, the Swiss Supreme Court held that plaintiffs lacked standing to bring their claim under the ECHR because the Paris Climate Agreement’s long-term temperature goal has not yet been exceeded. The greatest difficulty with meaningful climate litigation in the U.S. is showing the appropriateness of the courts as the mechanism to address the challenge. In dismissing a lawsuit earlier this year, the Ninth Circuit stated: “We reluctantly conclude . . . that the plaintiffs’ case must be made to the political branches or to the electorate at large . . . That the other branches may have abdicated their responsibility to remediate the problem does not confer on Article III courts, no matter how well-intentioned, the ability

producers, and government agencies.

to step into their shoes.”

Issues of justiciability (standing and ripeness) and separation

A study published earlier this year evaluated climate

of powers have made initiating climate litigation a challenge.

models from 1970 to 2007 and concluded that 10 accurately

Establishing a causal connection between the defendant’s

predicted increasing global temperatures and seven older

actions and plaintiff’s injury has also been a major hurdle

models were off by at most 0.1°C per decade. Although it is

where liability is based in tort, nuisance, and negligence.

impossible to predict litigation trends with such accuracy, it is safe to say that litigation, both attempting to compel

Since 2005, human rights-based claims similar to the

and thwart action to address climate change, will similarly

Inuit petition have gained more prominence. Although

continue to increase.

not including several prominent nations (e.g., the U.S. and China), 177 countries recognize a right to a clean or healthy environment through their constitutions, environmental legislation, court decisions, or ratification of an international agreement. In 2018, Colombian youth prevailed in their

SAN DIEGO LAWYER

July/August 2020

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

THE FIGHT AGAINST CLIMATE CHANGE GOES TO COURT CALIFORNIA IS LEADING THE WAY By Anne Kammer “Cooperative federalism” is a touchstone principle of

For example, California sued the U.S. Department of the

environmental regulation in the United States. From the

Interior and Bureau of Land Management in order to prevent

adverse effects of air pollution to those of surface coal

the opening of more than 1 million acres of public lands in

mining operations and the discharge of pollutants into

Central California to oil and gas drilling. California sued the

navigable waters, states have a critical role in protecting the

U.S. Department of Energy, challenging a final rule that rolls

environment through the administration and enforcement of

back energy efficiency standards for light bulbs. California

federal regulations. States also have the power to combat

has sued the U.S. Environmental Protection Agency (EPA)

climate change directly through their own climate action

multiple times, seeking to compel implementation of a

plans, legislation, and regulatory schemes. Collaboration may inevitably give way to conflict if the environmental policy goals of the federal government and the states are not in sync. Disputes may arise as a result of differing enforcement priorities, inconsistent statutory schemes, or regulatory change. In such instances, federalism poses certain challenges for the states in the form of the preemption doctrine and the dormant commerce clause. However, states are not without recourse in their pursuit of clean air, clean water, and an elevated quality of life for their citizens.

federal regulation designed to limit methane emissions at landfills, demanding tougher regulation of asbestos, and challenging the weakening of air toxics compliance requirements for cement plants. California and other states have sued to enjoin the EPA from implementing a final rule narrowing the definition of “waters of the United States.” According to the Attorney General, the rule would remove protections for all ephemeral streams, many wetlands, and other waters that were previously covered under the Clean Water Act. California is also leading a multistate challenge to an EPA policy which allows the agency to curtail civil

As the Supreme Court recognized in Massachusetts v. EPA, 549

enforcement of numerous environmental regulations and

US. 497 (2007), states have a “well-founded desire to preserve”

statutes during the coronavirus public health emergency.

their “sovereign territory” from the “harms associated with climate change.” With this aspect of climate-based standing

In addition, California, on behalf of a multistate coalition,

settled, states have a powerful weapon in their arsenal to fight

sued the federal government challenging the Safer

against the harmful impacts of climate change: litigation. And

Affordable Fuel-Efficient (SAFE) Vehicles Rule, issued by

California is leading the current charge to the courthouse.

the U.S. National Highway Traffic Safety Administration and the U.S. Environmental Protection Agency. California views

California, acting through its Attorney General, has the

the rule as an improper and unlawful rollback of the nation’s

authority “to act to protect the natural resources of the State

Clean Car Standards, which require improvements in fuel

of California from pollution, impairment, or destruction.”

economy and reductions in greenhouse gas emissions from

Pursuant to this authority, California has sued the federal

passenger cars and light trucks.

government dozens of times over the past several years challenging the current administration’s environment

And California’s environmental litigation strategy is not

and energy policies. According to the State of California

limited to the courts. California has also been active at the

Department of Justice, if Attorney General Xavier Becerra

agency level, while defending against challenges to its own

“can work cooperatively with the federal government to

climate change program. Those keeping track agree that,

protect the environment and public health, he’ll do so, but where the federal government becomes an obstacle, he won’t hesitate to sue. The stakes are simply too high.”

so far, California has enjoyed more than a modicum of success in all venues.

Recent deregulation efforts by the federal government have raised the stakes even further; the Attorney General views these efforts as “rollbacks in protections of the environment and public health” and true to his word, California has not hesitated to sue.

Anne Kammer (akammer@sandiego.edu) is a career law clerk for a federal judge and an adjunct professor at the University of San Diego School of Law.

SAN DIEGO LAWYER

July/August 2020

HUMOR IN THE LAW By George W. Brewster Jr.

any of my favorite

John and I did it together when Jim

a huge misunderstanding. Inside

quotations come from a

would emcee, for which Jim would

we poked fun at Law Week and

guy named Anonymous,

always wear a full tux with shorts and

“exciting Bar Function Fotos”

and I am reminded now of his inspiring

sneakers.” (Pokorny recalled that he

(two separate photo pages with the

challenge: If your mother-in-law and

told the crowd it was because their

same three people in each, one called

a lawyer were drowning and you only

budget had been cut in half.) Turek

“An Evening with Hors D’Oeuvres”

could save one of them, would you

said many of the classic Bar videos

and the other “An Evening to Chat”).

have lunch or go to a movie?

played at the Bar Dinner/Stepping Up

The 1991 cover declared itself to

were directed and produced by

be “The Vegetarian Edition” with a

Ah, humor. Very subjective. And lawyer

Higgs, Fletcher & Mack attorney

purple Mr. Potato Head. Each parody

humor? One wag, probably Anonymous,

John Morris. For a walk down memory

edition had Bored Briefs, a President’s

said, “There are no funny lawyers,

lane, go to “Mike Neil & Schmidlapp”

Column, announcements, letters to

only funny people who made career

(https://youtu.be/sGU-qtwDdas) or

the editor, News In Your Briefs and fake

mistakes.” But really, and aside

“Rainwater’s” (https://youtu.be/

ads. (This really ticked off the

from jokes about lawyers, humor

oPWEqnxMThs).

real advertisers who had real ads in

by lawyers is very robust and

the non-parody portion of the issue.)

creative. In San Diego, it is also

We had “in memory” segments for

steeped in tradition.

Ken Turek written by John Little,

The old Bar Dinners had plenty of

well, you get the idea. To this day

for John Little written by Ken Turek … I believe the parody issue reached

skits, including the annual Jackass

such new lows that it became the

of the Year Award presented by

final moving force toward killing off

Superior Court Judge Gil Harrelson,

Dicta and starting a slick mag.

with quips like “Judge X recently left

So, you are welcome.

the state court for the federal court, immediately raising the IQ average

Local attorney Chuck Sevilla has

of the state bench and lowering it for

compiled numerous “lawyer joke”

the federal.” Or “The Federal Judges

books, with much of the material

like to run their trials straight through

drawn from real-life depositions and

from 9 to 1 or 2 so they can drive home

courtroom transcripts. He said that

without their headlights on.” (He later

the books flowed from a column

did an encore award presentation at

he has written since 1978 for the

the Bar’s Centennial celebration at

California Attorneys for Criminal Justice

SeaWorld in 1999). And then there was

publication (Forum) called “Great

the mock news show, Bar News Alive, which started at the old Bar Dinner

In 1989, and for each April after that

and then carried on for a while at the

until 1995, the precursor to San Diego

Stepping Up to the Bar event.

Lawyer magazine (Dicta) had an April Fool's edition edited by yours truly.

Moments in Courtroom History,” and has found “great solace in mining humor in trial transcripts and case decisions, a nice tonic to combat Battered Lawyer Syndrome.” When

Bar News Alive was the creative

Pokorny, Turek, and Little helped out

endeavor of a number of people,

— and we made fun of the presiding

including Jim Pokorny, John Little, and

judge, the Bar, the Bar president

Ken Turek. Turek recalls this fake news

and many other aspects of our legal

skit started in the 1980s. “We usually

community. For example, the cover

Q: Were you shot in the fracas?

had two ‘anchors’ and sometimes

of the 1989 issue (our first parody)

A: No, Sir. I was shot midway between

‘special reports’ from the third guy …

declared Fast Track over, having been

the fracas and the navel.

SAN DIEGO LAWYER

July/August 2020

asked for a few of his favorite humor quotes from his books, he provided the following:

A defendant was charged with arson

see his books available for sale in

legal organizations to speak and/or

and missed his court appearance.

the Court’s bookstore.

perform at their events throughout the

Court: Where were you? Defendant: In the hospital. Court: Why?

following year. That turned into years, While many of us have felt like stand-

and I am still honored by the request

up comedians in the courtroom — on

to this day.”

purpose or by horrible accident — it is a whole different ball game to actually

“Plus, in these times, we need to

do stand-up. Local attorney Patti

laugh,” she adds. “If I can be a part

Zlaket has been doing stand-up for

of lightening the mood and helping

Question of Direction Expert Witness:

10 years, after being asked to perform

people let go of the serious stuff, even

Q: Sir, if a man had been shot in the

at the LAF OFF fundraising event in

if only for a few minutes, I’m all in.”

chest from a shotgun blast, which way

San Diego. Prior to that first comedy

would he fall?

gig, Zlaket had been (and remains)

Defendant: Smoke inhalation.

A: Down. Sevilla, a criminal defense attorney since 1971 (including Chief Trial Attorney for Federal Defenders San Diego, 1972-76; Chief Deputy California State Public Defender, 1979-83; and in practice with the late John Cleary from 1983-2004), has argued three cases before the U.S. Supreme Court. While there, he can

Stay classically funny, San Diego.

a professional singer/songwriter/ musician “for the better part of 30 years. Long before law school, my life was filled with music — performing, producing, touring, and recording,” she says. “I’ve always tried to infuse humor into every live show, mainly because

George Brewster wrote and drew his own law firm-based comic strip, “Cheetum & Howe,” for the San Diego Daily Transcript (1,200

I love to laugh, and I love making other

strips) from 1990 to 2000 and continues

people laugh. But I never pursued

doing illustrations for SDL. He retired from

a life in comedy.” Zlaket’s entry into

35 years in the practice of law in 2018, the

LAF OFF earned her first place,

last 30 with the Office of County Counsel.

“after which, I was asked by different

His kids think he is more goofy than funny.

COURTING HISTORY By George W. Brewster Jr.

his is first and foremost a call

courthouse that is now itself being

that had adorned the 1889 courthouse.

for stories — your stories —

demolished. The clock made its

In a dedication ceremony on June 20,

about life and times at the

way back to the site, placed in the

1979, in Department 1 of 220, Judge

vanishing old courthouse at 220

lobby of 220 in 1980 and remained

Yale and a host of familiar members

West Broadway. Please submit your

there until its closure. Lady Justice

of the legal community unveiled

stories to the San Diego County Bar

(who was on display in the Hall of

the first stained-glass window so

Association at edmcintyre@ethicsguru.

Justice for the Bar’s centennial in 1999)

recovered; you can now see many

law and hjohnson@sdcba.org.

is currently housed at the San Diego

more such windows spread around

History Center.

the Hall of Justice.

A little background on courthouses in San Diego. The first courthouse in

As a historical side note, Horton gave

San Diego County was part of a small

the courthouse property to the county

brick building in Old Town, built in

in 1871 under a Grant Deed with a

1847 and destroyed by fire in 1872.

restriction that the property only be

The building was crowded, containing

used for County purposes; if not, the

among others the offices of the Mayor

property was to default to Horton or

and the Sheriff. The Court moved to a

his heirs. Horton’s son agreed to a quit

roomier location (the Franklin House)

claim deed in 1938, for $25,000.

in 1851, and then in the 1860s, to the

So the land at 220 is free and clear

Whaley House.

for future development.

Meanwhile, Alonzo Horton had

So, now it is your turn to tell a few tales

purchased 1,000 acres (at 26 cents

about 220. Maybe about the Motion

per acre) in what is now downtown

Department in Department 35; or

San Diego, and he convinced the

being asked by an angry Presiding

powers that be to move the county

Judge if you brought your toothbrush;

government to his New Town.

or time spent in the small café down

He constructed a new courthouse in

The courthouse at 220 was

1872, at the same location as the 220

constructed in 1961 at a cost of

the hall from Department 35; or the

West Broadway courthouse, and court

$11,398,945. It was dedicated on

massive civil calendar being called out

papers were moved from the Whaley

December 15, 1961, with Board of

in Department 1. Time to dust off your

House to downtown. By 1889, the

Supervisors Chair David Bird acting as

old war stories and recollections and

courts had outgrown the courthouse,

Master of Ceremonies, Mayor Charles

preserve them — we’ll make use of

but during an expansion, it was

Dail offering greetings, and remarks

some of them in an upcoming edition

discovered that the structure would

by Superior Court Presiding Judge

of San Diego Lawyer, and save them all

not bear the weight, so the building

William Glen and Municipal Court

for future generations.

was demolished on a “repair order”

Presiding Judge Frank Nottbusch, and

and replaced. A clock tower and

an “inspirational word” by County Law

statues, including Lady Justice, were

Librarian Leland Stanford.

added to the roof and removed in 1939 due to earthquake concerns.

In 1979, then Presiding Judge of the Superior Court, William Yale, started

The subsequent courthouse remained

what became an ongoing project —

in place until 1959 to make way for the

the recovery of stained-glass windows

SAN DIEGO LAWYER

July/August 2020

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.

WHY I BELONG NATALIE E. ORTIZ Goodwin Brown Gross & Lovelace LLP

Education: Univ. of Illinois, Urbana-Champaign Thomas Jefferson School of Law

Areas of practice: Trusts & Estates Litigation

Family: Husband, Kariem, and 3-year-old daughter, Cecilia. "The best thing about being an attorney is ..." The constant opportunity for learning. We get to see and analyze new issues all the time, and that keeps it interesting.

WHAT TO DO WHEN THEREâ&#x20AC;&#x2122;S A PANDEMIC

s I write this, San Diego is in the middle of the COVID-19 pandemic. We are under a stay-at-home order, where many attorneys are working from home or are unable

to work at all, and the courts are all but completely closed. I am hopeful that by the time you are reading this, we will be on the other side of this global health and economic crisis.

What one skill has helped you be successful as an attorney, and how could others develop that skill to better their practices? Listening. Listen carefully. To clients, to opposing counsel, to your mentors, and to those you work with. It seems so basic, but I think that oftentimes we forget and instead of listening, find ourselves just waiting to get our next comment in. You can learn a lot from listening more and talking less. Most fun/memorable SDCBA moment All of them! It's always great to catch up with colleagues at events and meet new ones. I always particularly enjoy meeting people who practice in an area of law I know nothing about or who have those "non-traditional" lawyer jobs that I never even knew existed. "If I weren't an attorney, I'd be ..." Honestly, I don't know. There are so many things I would be interested in, so I might just be hopping around from job

Having never faced such a sustained lack of access to the courts in our lifetimes, we are all learning together how to do our jobs in this new uncharted environment. When it comes down to it, each of us represents a client. Depending on the type of law you practice, your client may be an individual facing the loss of their liberty, a business trying to protect its rights or financial well-being, or the public at large. No matter the type of client, each needs reassurance from their attorney during this crisis. While many of us face personal health concerns and financial uncertainty, we must also remember our duty to our clients. During this difficult and confusing time, it is more important than ever that we be not just an attorney, but truly a counselor at law. I learned from my mentors that my purpose is not solely to provide legal advice to my clients, but to some extent, lighten their burden by bearing some, or all, of that burden on their behalf. Our clients need our reassurance and understanding, especially as we try to explain a legal situation that we cannot fully understand or predict ourselves.

to job. But police officer comes to mind as one of the top alternatives. Proudest career moment Sitting in my parents' living room getting bar results. Neither of them finished college, but they put everything they had into their children's education (even when we weren't particularly interested in it ourselves sometimes). Being a parent now, I see how much dedication and sacrifice that required, so it was great to be able to show them that it was

While you struggle to care for your families and yourselves during this crisis, do not forget about your clients. Keep in mind they are still facing the now exacerbated crisis that brought them to your office in the first place. I hope that a future article titled â&#x20AC;&#x153;What to Do When the Courts Are Closedâ&#x20AC;? will be about family vacations and beach visits, but unfortunately we are not there today. I am confident, however, that the San Diego legal community will come together with the usual cooperative spirit and preserve justice for our clients.

worth it. Same goes for my husband, who saw me through all the freak-outs of law school (including totaling up my student loan balance at the end!) and always encouraged me to keep at it.

Edward J. Southcott (Ed@coplaw.org) represents law enforcement officers as an associate attorney at Bobbitt Pinckard & Fields, APC.

What would you most like to be known for? Compassion. SAN DIEGO LAWYER

July/August 2020

TUMULTUOUS 1918 By George W. Brewster Jr.

eadership during a pandemic can be a hot topic. But

caused, which amounted to $3.5 million. The brothers filed

let’s go back 100 years or so and look at our local legal

suit, seeking the $10,000 payment owed; the suit lingered

community leaders during the 1918-1920 influenza

until it was finally dismissed in 1938 (the court found the rain

pandemic — talk about tumultuous terms!

was an act of God).

First, a few influenza facts before we get to the influencers.

The other water issue tied to Cosgrove arose out of water

The pandemic dates are commonly considered January

rights to the San Diego River. In 1914 Cosgrove wrote an

1918 to December 1920, although the first detection in the

opinion that the City of San Diego held all rights to the

U.S. was in March 1918, and the U.S. spread was considered

river water; after years of court fights, his opinion was

halted in 1919. The pandemic killed an estimated 675,000

ultimately upheld.

Americans, and worldwide, 50 million (with 500 million infected, or one-third of the world population). In San Diego,

The District Attorney at the

with a 1918 population of 75,000, there were 366 deaths,

time of the 1918 pandemic was

with the first reported death in September 1918 in Balboa

Harry S. Utley. According to

Park (site of the Navy Hospital and training camp), and a

San Diego County Law Library

surge in October.

Director Leland Stanford (in his 1968 book, San Diego’s Legal Lore Terrence B. Cosgrove was

& the Bar), Utley, a naturalized

the San Diego City Attorney

British citizen, came to

from 1914 to 1919. During the

San Diego in 1886, and was

pandemic he played a role in the council’s decision to order

elected District Attorney from Harry S. Utley

all businesses closed — except

to 1922. He was gone during the

essential businesses — starting on

Terrence B. Cosgrove

1908 to 1914, and again from 1918 World War I years, and three

December 6, 1918. The Order was

others oversaw the office during that time. In 1918, he

lifted on December 9, 1918.

defeated the incumbent appointee W.F. Schuermeyer (likely, in retrospect, to Schuermeyer’s great relief); Utley

Cosgrove was well regarded as a

ran for reelection in 1922 but died of a heart attack just prior

water rights attorney, and after he

to the fall election.

left as City Attorney, he worked with his old office litigating city water issues. He is best remembered for two water-

Not much is found on Utley’s leadership during the

related events during his term as City Attorney. The first,

pandemic. We do know that the courts were open in

and most famous, was his involvement with Charles and

October 1918, when Harry Smelser of Fallbrook reported

Paul Hatfield, two brothers who promised to make it rain in

for jury duty in downtown San Diego. He subsequently

San Diego after a five-year drought. Charles, called

developed flu symptoms; his wife Dot cared for him and

“The Rainmaker,” and his brother set up a tower next to

he recovered. Sadly, she caught the virus and died.

Lake Morena in December 1915, and on January 10, 1916, the rain started. It rained and rained and rained again,

Utley may be best known for a different jury matter: the

causing Lower Otay Dam to break on January 27, 1916.

sitting of women jurors in San Diego. Even though a 1911

The flooding caused 14 to 20 human lives to be lost, livestock

state law arguably allowed women to sit as jurors, in 1914

deaths, and property damage. But the brothers came around

the San Diego County Board of Supervisors resisted the

to City Hall to seek the $10,000 payment the council had

demand by the Women’s Christian Temperance Union to

verbally agreed to pay should the brothers succeed.

allow it. One Supervisor is quoted in a September 1914 article in the San Diego Union that he opposed the sitting of females

The Hatfields came to see Cosgrove, who listened and

as jurors due to complications that might arise if men and

showed them the door. No written contract. A settlement

women jurors are sequestered overnight together in criminal

of the matter was attempted, but Cosgrove wanted the

cases. The WCTU let Utley know his reelection was in

brothers to also accept responsibility for the damages

jeopardy if he didn’t open up the jury pool to women.

SAN DIEGO LAWYER

July/August 2020

Utley said “OK” to the impaneling of female jurors just prior

The U.S. Supreme Court also had a tumultuous term. In

to his departure in late 1914; in 1915, six women were part

fact, the October term for 1918 was postponed due to the

of the jury pool, but none were selected for a criminal case

pandemic. Historically, we know that Supreme Court Justice

until September 1915. After appeals and additional changes

Oliver Wendell Holmes Jr. and Justice Louis Brandeis made

to state law, the State Supreme Court in 1918 adopted Utley’s

a powerful team in defense of free speech during their years

advisory opinion allowing for female jurors.

on the court. Holmes believed honest opinion was entitled to near absolute protection.

The 10th person to serve as the San Diego County Bar

And yet, a bit of dicta by Holmes in U.S. v. Schenck, 249 U.S.

Association’s President

47 (1919), (dealing with whether the Secretary of the Socialist

(1918-19) was John M. Ward.

Party of America could be convicted under the Espionage

(He was President during the

Act for writing and distributing a pamphlet opposing the

Bar’s 20th year, but a number of

draft during World War I) edged away from absolute free

men were President more than once, including Eugene Daney, who would ultimately serve a John M. Ward

mix of six consecutive and nonconsecutive terms.) Not much is known about his tenure as Bar president. We do know that

Ward came to San Diego in 1887 with his parents, went to Stanford University and obtained a B.A. in 1907, then a J.D. (also from Stanford) in 1909. He returned to San Diego to practice with his father (Martin Luther Ward), and in 1914 his brother also joined the firm, known as Ward, Ward and Ward. According to Leland Stanford, this firm was “one of the most outstanding in San Diego” for over 25 years. (John Ward died in 1936 at the age of 53.)

speech protection. Holmes, writing for the Court, said: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” That is, the First Amendment is not absolute. (Schenck was overturned by the Court in the 1969 decision Brandenburg v. Ohio, 395 U.S. 444 (1969), which holds that inflammatory speech is protected unless it is directed to incite or produce imminent lawless action AND is likely to incite or produce such action.) The Schenck case was argued January 8-10, 1919, and decided March 3, 1919. Perhaps — mere dicta from me here — Holmes was unsettled by the pandemic, and protesters upset with restrictions on gatherings and wearing masks. Maybe it was a panic — or pandemic — attack on Holmes’

Of note is that in 1899, Ward’s father had been appointed to

part. Food for thought.

the committee that wrote the Constitution and By-Laws for the newly formed Bar Association. The elder Ward had also served as the San Diego District Attorney from 1893-96, was a state senator from 1903 to 1906, and practiced with his two sons until his death in 1930.

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.

Invitation for Public Comment on the Reappointment of U.S. Bankruptcy Judge Laura S. Taylor

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The current term of the Honorable Laura S. Taylor, U.S. Bankruptcy Judge for the Southern District of California, is due to expire in January 2022. The U.S. Court of Appeals for the Ninth Circuit is considering the reappointment of Judge Taylor to a new 14 year term of office. The Court invites comments from the bar and public about Judge Taylor’s performance as a bankruptcy judge. The duties of a bankruptcy judge are specified by statute, and include conducting hearings and trials, making final determinations, and entering orders and judgments. Members of the bar and public are invited to submit comments concerning Judge Taylor for consideration by the Court of Appeals in determining whether or not to reappoint her. Anonymous responses will not be accepted. However, respondents who do not wish to have their identities disclosed should so indicate in the response, and such requests will be honored. Comments should be submitted no later than Friday, October 2, 2020, to the following address:

Office of the Circuit Executive P.O. Box 193939 San Francisco, CA 94119-3939 Attn: Reappointment of U.S. Bankruptcy Judge Taylor Email: Personnel@ce9.uscourts.gov

40,000 CLIENTS

ARE WAITING TO GET REFERRED TO YOU

The SDCBA’s Lawyer Referral and Information Service (LRIS) makes over 40,000 client referrals to local attorneys every year. You could be one of those attorneys. As part of the LRIS program, you would be in great company. Our thorough qualification process ensures you will be part of a competent and conscientious group of lawyers carefully selected to provide the peace of mind our clients trust and rely on. And rest assured, we are equally judicious in qualifying potential clients before we refer them to you. Applying to join is very affordable, especially for SDCBA members. Best of all, by participating in the program, you will be helping clients get legal services they might not otherwise know how to find – and gain great clients for your practice – a true win-win. All of which makes applying to join LRIS an easy case to make.

Learn more about applying for LRIS today: (619) 321- 4153 or LRIS@sdcba.org

THE JOURNEY TOWARD JUSTICE BEGINS HERE: STORIES ABOUT THE WORK OF THE LEGAL AID SOCIETY OF SAN DIEGO By Gregory Knoll, CEO Civil Rights attorney Bryan Stevenson of

Black San Diegans are 25% of our

Services Corporation Act, the needs

Montgomery, Alabama reminds us that

eviction clients,but comprise only 4.7%

will never be met without drastic

“The opposite of poverty is not wealth

of our county’s population.

fundamental change to the very

— it is justice.”

systems that perpetuate the severely We know our Constitution gives

unequal relationship between white

The tragic killings of George Floyd

criminal defendants the right to

and Black America. After all, since 1619,

and other unarmed Black men and

an attorney. Yet, still, one-third of

racism and its effect on the human spirit

women have magnified inequities and

Black men between the ages of

of an entire race of people has never

discrimination endured by Black people

18 and 30 have been incarcerated.

been a Black problem. It has always

since the 400-year dawn of slavery.

Institutionalized discrimination is also

been, and is today, a white problem.

found in civil courts, where there is no Police brutality is today’s featured

such guaranteed right to counsel.

So, we ask our legal community to take

example of systemic racism and the

the lead in engaging our populace

overuse of power, highlighting the

Simultaneously, COVID-19 claims

in discussions on race, equity, and

impact on poor and disenfranchised

many Black Americans’ lives due to

systemic change. As a first step,

communities. Legal Aid Society of

vulnerable health issues for people

if the inspiration drawn from the

San Diego (LASSD) seeks to improve

living in poverty, and the “essential”

recent peaceful protests and activism

our clients’ access to effective

work they perform. The pandemic

that have swept across the nation

participation within the legal,

magnifies inequalities such as

are to result in real change, we must

governmental, and social systems, and

economic disparities, food insecurity,

encourage all people to vote for

encourage self-empowerment in the

lack of safe or adequate housing, and

candidates locally, regionally, and

fight against poverty and injustice.

barriers to accessing quality health

nationally who they believe will bring

care. Legal Aid attempts to address

the change we desperately need.

LASSD exists to facilitate systemic

these inequities.

equity. One-third of San Diegans live with economic insecurity — 60% of

Even with federal support such as

LASSD clients are people of color,

the Freedmen’s Bureau, the Office of

and 48% are Black or Hispanic.

Economic Opportunity, and the Legal

Meet Your

Bar-ista

Gregory Knoll (gek@cchea.org) is CEO/ Chief Counsel of Legal Aid Society of San Diego.

What are your main responsibilities at the Bar?

What is your favorite movie and why?

Working with our amazing section leadership

Elisyum, because it’s about undertaking

and wonderful speakers to produce

a mission that could bring equality to the

educational programming while also creating

population in 2154.

inviting atmospheres for members to network and build relationships.

What’s your favorite quote? “Today is the oldest you've ever been, and

How long have you been working at the Bar? One year and six months. What is your favorite part of your job? Seeing great programs come to fruition, and if at least one person had a takeaway, that is MARIBEL SANCHEZ

truly special to me.

the youngest you'll ever be again.” — Eleanor Roosevelt What do you love about San Diego? The beach, the weather, diversity, and community.

PROGRAM & EVENTS SPECIALIST

SAN DIEGO LAWYER

July/August 2020

100

B CLU

CEN PER T 2020

THANK YOU 100 PERCENT CLUB 2020 The San Diego County Bar Association wants to thank all of the San Diego law firms, public agencies, and nonprofit legal organizations that have provided SDCBA membership to 100% of their attorneys in 2020. Your commitment to the San Diego legal community is greatly appreciated.

Antonyan Miranda, LLP

Greco Traficante Schulz & Brick

Paul, Plevin, Sullivan & Connaughton LLP

Atkinson, Andelson, Loya, Ruud & Romo

Green Bryant & French, LLP

Pettit Kohn Ingrassia Lutz & Dolin

Balestreri Potocki & Holmes

Greene & Roberts LLP

Pillsbury Winthrop Shaw Pittman LLP

Beamer, Lauth, Steinley & Bond, LLP

Grimm, Vranjes & Greer LLP

Preovolos Lewin, ALC

Bender & Gritz, APLC

Hahn Loeser & Parks, LLP

Procopio, Cory, Hargreaves & Savitch LLP

Best Best & Krieger LLP

Henderson, Caverly & Pum LLP

Pyle Sims Duncan & Stevenson APC

Blackmar, Principe & Schmelter APC

Higgs Fletcher & Mack LLP

RJS Law

Blanchard, Krasner & French APC

Hilbert & Satterly, LLP

San Diego Unified Port District

Bobbitt, Pinckard & Fields, APC

Hoffman & Forde

Sandler, Lasry, Laube, Byer & Valdez LLP

Bonnie R. Moss & Associates

Hooper, Lundy & Bookman, PC

Schwartz Semerdjian Cauley & Moot LLP

Brierton Jones & Jones, LLP

Horton, Oberrecht, Kirkpatrick & Martha, APC

Selman Breitman, LLP

Brown Law Group

Hughes & Pizzuto, APC

Seltzer|Caplan|McMahon|Vitek ALC

Burke, Williams & Sorensen, LLP

Jackson Lewis PC

Sheppard, Mullin, Richter & Hampton LLP

Carothers DiSante & Freudenberger LLP

Johnson Fistel LLP

Shoecraft Burton, LLP

Casey Gerry Schenk Francavilla Blatt & Penfield, LLP Judkins Glatt & Rich LLP

Shustak Reynolds & Partners, PC

Christensen & Spath LLP

JWB Family Law

Siegel, Moreno & Stettler, APC

Cohelan Khoury & Singer

Kennedy & Souza, APC

Smith Steiner Vanderpool, APC

Collinsworth, Specht, Calkins & Giampaoli, LLP

Klinedinst PC

Solomon Minton Cardinal Doyle & Smith LLP

Devaney Pate Morris & Cameron, LLP

Koeller Nebeker Carlson & Haluck LLP

Solomon Ward Seidenwurm & Smith, LLP

Dietz, Gilmor & Chazen, APC

Konoske Akiyama | Brust LLP

Solomon, Grindle, Lidstad & Wintringer, APC

District Attorney’s Office

Law Offices of Beatrice L. Snider, APC

Stoel Rives LLP

Donald R. Holben & Associates, APC

Legal Aid Society of San Diego, Inc.

Stokes Wagner, ALC

Duckor Spradling Metzger & Wynne, ALC

Lincoln Gustafson & Cercos LLP

Sullivan Hill Rez & Engel, APLC

Dunn DeSantis Walt & Kendrick, LLP

Mara Law Firm, APLC

Tresp Law, APC

Erickson Law Firm APC

McCloskey Waring Waisman & Drury LLP

Vanst Law

Farmer Case & Fedor

McDougal Love Eckis Boehmer Foley Lyon & Canals

Walsh McKean Furcolo LLP

Ferris & Britton, APC

Miller, Monson, Peshel, Polacek & Hoshaw

Wilson Turner Kosmo LLP

Finch, Thornton & Baird, LLP

MoginRubin LLP

Winet Patrick Gayer Creighton & Hanes

Fleischer & Ravreby

Moore, Schulman & Moore, APC

Wingert Grebing Brubaker & Juskie LLP

Fragomen, Del Rey, Bernsen & Loewy, LLP

Musick, Peeler & Garrett LLP

Wirtz Law APC

Garmo & Garmo LLP

Neil, Dymott, Frank, McCabe & Hudson APLC

Witham Mahoney & Abbott, LLP

Gatzke Dillon & Ballance LLP

Niddrie | Addams | Fuller | Singh LLP

Withers Bergman LLP

Gomez Trial Attorneys

Noonan Lance Boyer & Banach LLP

Wright, L’Estrange & Ergastolo

Goodwin Brown Gross & Lovelace LLP

Office of the Public Defender

GrahamHollis APC

Office of the San Diego City Attorney

Distinctions The following individuals in our community were recently honored for their achievements. If you achieve a professional success, feel welcome to submit it to bar@sdcba.org for inclusion in an upcoming issue of San Diego Lawyer. Virginia C. Nelson was recently elected to the University of San Diego Board of Trustees. Nelson has been closely involved with the School of Law at the University of San Diego since graduation, serving on the Law Alumni Board of Directors, the Board of Visitors, as Vice-Chair of the Leading Change Campaign, and currently as an Adjunct Professor teaching Negotiation and California Civil Discovery Practice.

David Majchrzak has been appointed by ABA President Patricia Lee Refo to the ABA’s Standing Committee on Ethics and Professional Responsibility.

Kristin Rizzo was appointed in March 2020 to serve on the City of San Diego’s Human Relations Commission, after being nominated by San Diego Mayor Kevin Faulconer and unanimously confirmed by the San Diego City Council. The Commission advises the Mayor, City Council, and City Manager on the rights of every inhabitant of the City of San Diego to equal economic, political, and educational opportunity; to equal accommodations in all business establishments in the City; and to equal service and protection by public agencies.

Julie Houth has been appointed by ABA President-Elect, Patricia Lee Refo, to the ABA’s Standing Committee on Publishing Oversight (SCOPO) for a three-year term.

Johanna Schiavoni was re-appointed in March 2020 to an additional three-year term on the Board of Directors of the San Diego County Regional Airport Authority, after being nominated by San Diego Mayor Kevin Faulconer and unanimously confirmed by the San Diego City Council. Schiavoni serves as Chair of the Airport Board’s Executive Personnel and Compensation Committee, as Vice Chair of the Finance Committee, and as the Airport’s Representative to SANDAG’s Transportation Committee.

Passings Legal icon Peter Quon passed away on July 17, 2020. He was known for his leadership, generosity, and passion for mentoring students and new lawyers, always improving the lives of those he touched. Peter was a cofounder of Pan Asian Lawyers of San Diego in 1977 and later served as its President. He received many awards for his tireless advocacy and commitment to diversity in the profession, including two awards from the SDCBA. His contributions to our community will long be cherished.

Anthony M. Medina recently passed away in a tragic accident. Anthony established his own law practice and in 2017 founded People’s Legal Services, a sliding scale nonprofit organization. He stayed true to his passion to provide cost-effective and accessible representation to underserved families and individuals. His family and friends will remember Anthony as a genuine person whom you could always count on.

SAN DIEGO LAWYER

July/August 2020

EXCLUSIVE MEMBER BENEFITS sdcba.org/memberdiscounts

All benefits are as of July 1, 2020, and subject to change without notice.

PREMIER MEMBER BENEFIT PROVIDER SAVE UP TO 20%! Enjoy up to a 20% discount as an SDCBA member, depending on coverage. AHERN offers members an Exclusive Lawyers Professional Liability Program with AXA XL, as well as a full line of insurance products designed specifically for law firms.

FREE BAR BENEFITS!

Level up your law practice management with online expert help from our resident Technology and Practice Management Advisor!

NOTARY SERVICE Schedule your free appointment with one of our notaries at the SDCBA Downtown Bar Center. Visit www.sdcba.org forCOVID-19 closure updates.

CONFERENCE ROOMS & WORKSPACE Come to the SDCBA Downtown Bar Center at 401 West A Street, with free desk space, small conference rooms, WiFi, printing/copies, snacks and more. Visit www.sdcba.org for COVID-19 closure updates.

Take 50% or more off the MSRP of Sharp office printers for your firm, exclusively for SDCBA members.

BUSINESS SERVICES PRACTICE MANAGEMENT

Call for guidance and perspective on a variety of ethical considerations in the practice of law. (619) 231-0781 x4145

TECH & LAW PRACTICE CONSULTING

SAVE 50% OR MORE

LIFESTYLE BENEFITS

LEGAL ETHICS HOTLINE

LISTSERVS TO CONNECT TO FELLOW MEMBERS

TAKE 10% OFF OFFICE PRODUCTS

DOWNTOWN PARKING Park at the lot at Union and B street for free after 5 p.m. and all day on weekends. SDCBA dashboard placard required.

RECEIVE PREFERRED MEMBER PRICING

Enjoy SDCBA member savings on more than 30,000 office supplies.

Paylocity offers you literally everything you need for your human resource management in one easy, integrated cloud platform.

SAVE UP TO 30% ON PC PRODUCTS

COMPETITIVE FEES & A GREAT RANGE OF FUNDS

Get your SDCBA member discount on Lenovo PC products and accessories.

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FIRST 3 MONTHS FREE ON DIY PLAN $15 OFF / MONTH ON TEAM PLAN

SAVE 7%, PLUS NO SETUP FEE

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SAVE UP TO 25% ON CAR RENTALS For business or pleasure!

UNIVERSITY CLUB

Scanner with Remote Deposit Service, Interest-bearing, personal checking, No-first-year-fee commercial credit card, & No-first-year-fee business line of credit

There’s a reason ABA Retirement Funds is one of the all-time leading providers among bars nationwide — and an SDCBA partner.

SAVE 10% ON PRACTICE MANAGEMENT

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SAN DIEGO ZOO / SAFARI PARK

FIT ATHLETIC CLUB LITTLE ITALY!

Discounted admission for SDCBA members at both locations, plus instant front-of-line entry.

Reduced initiation and monthly dues just for SDCBA members.

$250 Preferred Initiation Fee (retails at $1,500)

20% OFF ROOM RATE

MOBILE LAUNDRY SERVICE — SAVE 20%

Enjoy a great rate at this brand new hotel in dowtown, with access to FIT athletic club too!

ALWAYS FRESH MOBILE DETAILING Keep your car like new, at special discounted rates just for SDCBA members.

Your dry cleaner comes to you!

LAW YER REFERRAL & INFORMATION SERVICE

GET MORE CLIENT REFERRALS! Lawyer members of SDCBA’s lawyer referral service earned over $5 million in fees in 2019 from the over 40,000 client referrals we provided to them. It really pays to be part of this service! SDCBA members can join at a discounted rate.

LAWYER. BROKER.

EXPERT

NEGOTIATOR.

TENANT REPRESENTATION FOR THE LEGAL PROFESSION

R E A L E S T A T E C O M P A N Y, I N C .

EXCELLENCE THROUGH NEGOTIATION

619.235.9959

tbulich@toddbulich.com