San Diego Lawyer March/April 2020 by San Diego County Bar Association

®® ® MAR/APR 2020

THE BUSINESS OF LAW

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CONTENTS

COLUMNS 8

14 Page

PRESIDENT'S COLUMN Leading Through Crisis— A People-Centered Approach by Johanna Schiavoni

LAW SCHOOL COLUMN Staying Change-Ready by Andrew Steiger

ETHICS Moving On? Don't Take Baggage with You! by Edward McIntyre

TECHNOLOGY Blockchain Basics: A Primer for Curious Lawyers by Adriana Linares SAN DIEGO COUNTY BAR FOUNDATION The Karen Organization of San Diego: Offering Vital Help for Burmese Refugees

47 49

LEGAL AID SOCIETY OF SAN DIEGO The Journey Toward Justice Begins Here by Gregory Knoll WHAT TO DO WHEN ... Your Client Falls Behind on Payment by Nicole Heffel WHY I BELONG Get to know Hon. Joseph P. Brannigan MEET YOUR BAR-ISTA Andrew Cave Director of Member Services DISTINCTIONS AND PASSINGS PHOTO GALLERY

FEATURES 16

Page

32 THE

BUSINESS OF LAW

NATIVE AMERICAN LAW INTERN PROGRAM by Edward McIntyre SAN DIEGO LAWYERS GIVE BACK AT 2020 MOCK TRIAL COMPETITION by Julie Houth

BOOK REVIEW: DREYER'S ENGLISH by Hon. Dwayne K. Moring LITIGATION SETTLEMENT ABOLISHES CIVIC SAN DIEGO'S DEVELOPMENT AUTHORITY by Whitney Hodges TUMULTUOUS TERMS: D.A. CHESTER C. KEMPLEY by George W. Brewster Jr.

REMEMBERING JUSTICE WILLIAM L. TODD by Charles Grebing

THE BUSINESS OF LAW 20

Page

20 YEARS OF NATIVE AMERICAN LAW PRACTICE The Start of a Journey by Ted Griswold

THE BUSINESS OF LAW by James D. Crosby

TAX CONSIDERATIONS IN OPERATING A LAW OFFICE Under the Tax Cuts and Jobs Act by Alexandra Eaker Pérez CHART A NEW PATH Alternatives to Law Practice by Jeremy M. Evans

FINDING GOOD HELP THESE DAYS: BEING A GOOD EMPLOYER by Michael G. Olinik PRACTICING LAW AT HOME AND ABROAD by Hailey Johnson GENERATION Z: WELCOME THE WORKFORCE OF THE FUTURE by Dawn Andrews

SAN DIEGO LAWYER

March/April 2020

®® ®

Issue 2, March/April 2020

SAN DIEGO LAWYER MAGAZINE EDITORIAL BOARD Co-Editors Julie Houth

Edward McIntyre

Editorial Board George W. Brewster Jr. James D. Crosby Jeremy M. Evans Devinder Hans Whitney Hodges Wendy House

Anne Kammer Michael G. Olinik Christine Pangan Renée Stackhouse Julie Wolff

SAN DIEGO COUNTY BAR ASSOCIATION Board of Directors President Johanna Schiavoni President-Elect Renée Stackhouse Immediate Past President Lilys D. McCoy Vice Presidents Gary S. Barthel Linh Y. Lam Teodora D. Purcell Secretary Melissa Johnson Treasurer David M. Majchrzak

Directors Samantha Begovich Marissa A. Bejarano Victor E. Bianchini Roxanne Carter Warren Den Nicholas J. Fox Brenda Lopez Wilson A. Schooley Khodadad D. Sharif Kimberly Swierenga New Lawyer Division Representative Stephanie Sandler

Issue no. 2. San Diego Lawyer™ (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is (619) 231-0781. The price of an annual subscription to members of the San Diego County Bar Association is included in their dues. Annual subscriptions to all others, $50. Single-copy price, $10. Periodicals postage paid at San Diego, CA and additional mailing offices. POSTMASTER: Send address changes to San Diego Lawyer™, 401 West A Street, Suite 1100, San Diego, CA 92101. Copyright © 2020 by the San Diego County Bar Association. All rights r eserved. Opinions expressed in San Diego Lawyer™ are those of the authors only and are not opinions of the SDCBA or the San Diego Lawyer™ Editorial Board. Interested contributors may submit article ideas to the editors at www.sdcba.org/SDLidea. Unsolicited articles will not be printed in San Diego Lawyer™. San Diego Lawyer™ reserves the right to edit all submissions, contributed articles and photographs at its sole discretion. The opinions expressed by the authors and editors in San Diego Lawyer™ do not necessarily reflect an official position of the San Diego County Bar Association.

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March/April 2020

President’s Column by Johanna Schiavoni

LEADING THROUGH CRISIS— A PEOPLE-CENTERED APPROACH

As I write this, the world is in the midst of the global COVID-19 pandemic, which is causing rapid changes and having unprecedented impacts on our communities. The spread is unpredictable, the potential impacts on our healthcare system are crushing, and financial systems are disrupted. Small businesses face potentially ruinous closures, courts are running only emergency operations, and the unemployment rate has skyrocketed. The very way we work, learn, and interact is dismantled. The greatest source of our collective anxiety around coronavirus, it seems, is the unknowns. How long will the crisis last? How many will get sick? How many could die? Will our healthcare system be able to handle the surge of patients and how can we best protect our front-line workers? Is our economy resilient enough to withstand the crisis? Can we rise to the challenge as a local and global community to protect one another and our most vulnerable? Amidst the uncertainty and anxiety, there also is opportunity for leaders of organizations to be of service. I’m proud of how our team at the SDCBA has responded and continued to serve our members.

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During the first week of March, as COVID-19 was escalating globally but before many local organizations were strongly reacting, Executive Director Jill Epstein and I convened our Board’s Executive Committee to evaluate existing policy and determine the process for making decisions for the Bar. Based on the information available at that time, we decided to close our Bar Center space effective Friday, March 6 to best protect our staff, members, their clients, and the public. We announced the closure to our membership a day earlier, and reassured our members that staff operations would continue. We also made teleconference and webinar capabilities available for all programs and meetings.

When announcing these changes to the membership, we were prepared to answer questions and received a few—but were gratified that most members thanked us for our early and decisive leadership. We also heard that we inspired many members to action, as well. We have continued to update our members frequently about impacts to our operations and to courts across California, we have provided training about remote working tools and resources, and we have supported our members with other needs to continue their law practices and client service. And as the situation evolves, we are surveying members on what they need most from us, and how we can help them.

At that time, we also began preparations for our staff to work remotely; we tested the capabilities, addressed glitches, and then went fully virtual as of Monday, March 16. We also opted to postpone large events, even before being required to do so. We kept our Board of Directors apprised, sought their input, and regularly updated our members about these decisions. In doing so, we communicated our desire to prioritize the health and safety of our employees and members, and to support local health officials and government leaders as they work to contain the virus and protect our community as a whole.

| March/April 2020

Despite the changes in our operations, we continue to publish timely and relevant content for our members, our Sections continue to plan topical programming, our Committees are hard at work on various projects to serve our membership, our Board and staff are moving forward on the strategic priorities we developed at our January retreat, our staff members continue their daily work while shifting to Zoom meetings, and we virtually celebrated Jill Epstein’s one-year anniversary as the SDCBA’s Executive Director.

This crisis is by no means behind us, and it is impossible to predict where we will be even at the time this column is published. Yet, based on this experience and the collective work of our Board and staff leadership at the SDCBA, here are some of the key takeaways I can share about taking a people-centered approach when leading through a crisis. Activate key decision-makers and gather information. Determine who the key decision-makers are within your organization. Seek input from experts, whether from within your organization or outside of it. Listen carefully to your people, analyze the best information available, and then act quickly and decisively. If your organization has contingency planning and crisis communications policies, use those to determine who the key decision-makers should be. If you don’t yet have crisis planning policies in place, assemble your decision-makers under existing policy and beef up your policies to plan for emergencies. Make decisions from a peoplefocused and mission-centered place. As you gather information, think about how to best serve and protect your people—whether they’re employees, clients, stakeholders, the public, or all of the above. People-centered decision-making is critical. It’s also vital to consider and acknowledge people’s natural anxieties surrounding the crisis, and to demonstrate a commitment to addressing them for the greatest good. Be steady and decisive, but also adaptable. Once you have enough information, act in the best interests of your people and make clear decisions. Be prepared, however, for the need to adapt those decisions

as you gain new information or resolve ambiguities. This doesn’t mean a constant stream of 180-degree turns. It does mean being decisive, moving forward, and having a feedback loop as you learn new information that requires adjustments to your decisions. Communicate decisions and be transparent about the who, what, why, and when. Provide clear explanations of what you know and your decisions based on that knowledge. Explain what uncertainties remain and what questions are being asked. Let your employees, members, stakeholders, or other key constituencies know who was involved in decision-making, what the decisions are, and why you made them. The “why” sheds light on the underlying intentions and motivations of the organization. This type of communication and transparency builds trust and confidence, and allows others who look to you for guidance to make key decisions, as well. Provide frequent updates. As for the “when,” it is understandable that in a quickly-evolving situation, your leadership team will not have all of the answers at the outset. But, set the tone that you will provide regular communication with information as it becomes available. This will help address the underlying anxiety people feel from not having information or guidance. Keep projects moving and your team motivated. During times of crisis, and particularly those of rapid change, it’s important to keep your team focused and moving forward. Some priorities may shift, and in fact, it may be easier to postpone or eliminate peripheral projects to focus on mission-critical work. Keep your

regular team check-in meetings and add more if the situation requires it. That must, of course, be balanced with empathy for your colleagues; some may be sidetracked by the crisis and will require your grace and understanding. Nevertheless, continue to lead the team to move forward toward your common, mission-centered goals. Continue small acts of kindness. Even in the midst of a crisis, your employees will have work anniversaries or handle a project well, or a colleague will achieve a big win. Take the time to celebrate and recognize significant moments. Take care of yourself. Wellness is an imperative for leaders to be effective and exercise good judgment. Times of crisis are by nature stressful; stress and exhaustion undermine good decision-making. Leaders must take the time to step back, reassess, and take care of themselves. By doing this, you set the example for your team to do the same. In times of crisis, people crave information, transparency, and thoughtful guidance. Keeping a people-centered frame is paramount at every stage. In closing, I’d like to extend a heartfelt thank you to the devoted staff, Board, and volunteer leadership throughout the SDCBA, and to our valued members. Together as a community, I am optimistic we will get through this crisis and will rise to meet the challenges ahead.

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.

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March/April 2020

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LAW SCHOOL COLUMN by Andrew Steiger

STAYING CHANGE-READY

hange is as old as time. It is constant. The question is how to react to change strategically. No one person has a monopoly on the answers, so we must also draw inspiration from outside ourselves. Personally, I look to history, and chiefly to the Ancient Greeks. Nearly three millennia ago, the Pythia was widely understood to see the future. Whether or not she indeed saw the future, she leveraged her credibility as a seer to counsel kings and supplicants in the ways of change tolerance. Three maxims were inscribed on her temple at Delphi: Know thyself, nothing in excess and choose well (and often). First: know thyself. What are the pillars of your identity, and what steps have you taken to preserve them? Rapid change comes like a tidal wave, washing away the familiar. Airplane flight attendants remind us to always put on our own oxygen mask first. Similarly, we must adopt practices of self-preservation, or risk losing ourselves in the churn. Second: nothing in excess. Have you hedged your bet on your specialization? The risk of overspecialization can be mitigated through diversification. Try branching into another practice area, and/or hiring wisely and diversely to augment your own skillset. Expertise has made your practice strong, but at the cost of the wide-open worldview of a beginner. Consider mentoring a law student in order to, through empathy, reacquaint yourself with a beginner’s mind.

“By staying open to new ideas, and by taking pointers from the past, we can remain ready for change. As the pace of change increases, this has never been a more vital skill.” Third: choose well and often. Have you given yourself permission to reinvent? All professional goals and relationships exist in a state of flux, evolving over time. We must choose them again in order to renew them. Don’t take them for granted, or you may miss an opportunity to grow and evolve yourself. And above all, remember why you chose to practice law, and choose it again to renew your drive to strive for more. By staying open to new ideas and by taking pointers from the past, we can remain ready for change. As the pace of change increases, this has never been a more vital skill. Macroeconomic factors are accelerating shifts in the way we do business, and the tools of the legal trade are evolving before our eyes. As legal professionals, it is essential to recognize the monumental transformation taking place in our competitive landscape. It behooves you to respond. So, what steps will you take to ensure your practice thrives through change?

Andrew Steiger (AndrewRSteiger@gmail.com) is a full-time student ('22) at Thomas Jefferson School of Law.

SAN DIEGO LAWYER

March/April 2020

ETHICS by Edward McIntyre

MOVING ON? DON’T TAKE BAGGAGE WITH YOU! Duncan stood at Macbeth’s office door. “Uncle, sorry to interrupt you and Sara. Have a minute?” Macbeth beckoned toward Duncan and his guest. “Not an interruption. We’re only discussing a new State Bar ethics opinion.” “Uncle. Sara. My friend, Hanna. We’ve got a couple of questions.” “Welcome, Hanna. Join us.” With all four at the conference table, Macbeth began. “Hanna, the floor is yours.” “I accepted an offer to join a new firm. It’s exciting. Just want to make sure I do it right.” Sara suppressed a smile. Macbeth started. “Excellent. Congratulations. Told your current firm yet?” “Not yet. Duncan suggested I talk with you before I do anything. I just accepted the offer last night.” “Fine. In what area do you practice?” “I’m a trial lawyer. Complex business litigation, mostly. Some pre-litigation counseling. Almost all business clients.”

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“Well, several current rules may come into play. Rule 1.4, for example, requires you tell your clients about your move. It’s certainly a ‘significant development’ in the representation.”

“Conflicts will be a big concern. Has the firm asked you for a list of potential clients who may come with you?”

“How about other clients?”

“Confidentiality may be one. As a trial lawyer, your representation of some clients is public record. But you also do pre-litigation counseling?”

“Great question. Sara?” “Yes, you should also tell clients on matters you’re responsible for. Whether it’s — air quote — your client or not. In addition, any client you reasonably believe might wish to go with you.” Macbeth picked up. “My suggestion: Be candid with your firm’s leadership. See if you can agree on a common list of clients to inform. Try to work out the text of a joint communication. There’s an ABA opinion Sara will send you. It’s got some fine suggestions about law firm and departing lawyer coordination. Big emphasis on cooperation. For everyone’s sake.” “Thanks. I’ll meet with our managing partner right away. She’s reasonable.”

“No. But now that I’ve accepted, I know that’s next. Any issues?”

“Yes. Trying to keep clients out of litigation. But also considering possible lawsuits. And an SEC investigation. That client will likely go with me.” “If you think that you representing those clients — and parties they may be adverse to — is something the clients would consider confidential, you’ll need their informed consent before revealing it.” Hanna looked quizzical. Sara nodded. “It would fall within the scope of section 6068(e)(1)’s confidentiality mandate and Rule 1.6.”

“Great.” “What about my new firm?”

| March/April 2020

Hanna jotted a note on her phone. “OK. Thanks.”

Macbeth continued, “Rule 1.7 — our current conflicts rule — has the new material limitation provision. You and your new firm would be well-advised to consider exchanging information that might fall within it. For example, relationships with other clients or with former clients. Third persons or your own personal interests. Anything that might materially limit your ability — the ability of lawyers in your new firm — any of you — from representing firm clients.” Hanna made another note. “So more than just clients?” “Yes, because Rule 1.7(b)’s material limitation provision sweeps more broadly than just concurrent adversity between clients. It takes a broad range of relationships into account.” Sara interrupted, “Also take a long look at Rule 1.10 — imputation of conflicts. It will affect you at your new firm. But good news — California now permits ethical screening for lawyers who change firms. The new firm isn’t always affected with proper screening. The rule lays out the criteria. How to go about it.” “Thanks, I might have missed that one.” “It’s new with the November 2018 rule changes.” Duncan added, “I’m sure you’ve thought about it. For clients who remain at your current firm or who choose another firm. You or your firm will have to take Rule 1.16, employment termination, into account. Get substitutions. Court approvals.”

Cartoon by George W. Brewster Jr.

“Good point. I’ll add it to my check list. Other thoughts?” Macbeth spoke again, “Let’s assume all goes well when you and your managing partner talk. You agree on a list of clients to tell about your move. You agree it will be a joint letter.” “OK —”

“The State Bar ethics opinion Sara and I were discussing when you and Duncan came to the door addresses lawyers moving firms. You might find it helpful. Sara will send you a copy of it.” “Thank you all so much. This has been a great help.” “We wish you well. Can’t wait to see your announcement.”

“To make an informed choice — go with you or stay — clients will need information. About your new firm. Whether it can serve their needs the same way as your current firm. Whether your current firm can still serve their needs with you leaving. Obviously, you want them to follow you. The firm wants as many as possible to stay. Remember, however, the test is client-centric. Clients get to choose. Without pressure.”

Editorial Note: The State Bar opinion to which Macbeth referred is Formal Opinion No. 2020-201; the ABA opinion is ABA Formal Opinion No. 99-414.

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

“Got it.”

SAN DIEGO LAWYER

March/April 2020

TECHNOLOGY by Adriana Linares

BLOCKCHAIN BASICS A PRIMER FOR CURIOUS LAWYERS

e all know that an important aspect of technology competence is understanding new technologies and applying them to practice as they become relevant. While some technological developments, tools, services, or programs can be applied across a broad swath of practice areas and demographics, others can be more esoteric and far-reaching. Blockchain is no exception. As blockchain continues to evolve, certain aspects are already in use regularly, such as in smart contracts, discovery requests and information authentication.

THE TECHNICAL ASPECTS OF BLOCKCHAIN TECHNOLOGY A common definition of “blockchain technology” is that it functions on a distributed ledger system using a decentralized database. Wait. What? Well, in simple terms, a distributed ledger is a database whose contents are duplicated across several devices (i.e., nodes). Each node replicates and saves an identical copy of the ledger and updates itself independently. No central authority pushes an update or controls all the data. By way of algorithms, the nodes update themselves. The ledgers are highly secured through cryptographic keys and signatures.

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The database stores linked records in a time-stamped block, hence the moniker for the process. The digital record is the block, and the storage in the database is the chain. Users cannot change blocks, but they are visible to those with access. It operates on a proof of validity that is consensus-based. Defining a few key terms is critical toward adopting a secure and practical form of technology. Below is a general overview of the terms to understand blockchain better: Distributed ledger system: A distributed ledger system works by processing and verifying every record through a node (like a small server). It generates a record with a consensus on its accuracy. Decentralized database: A decentralized database is one that stores records across multiple nodes, not just a single, centralized location. Mining: The process of adding transaction records to the blockchain. This is how transactions are processed. Mining is performed by people all around the world called "blockchain miners." Hash: A mathematical function that converts an input of letters

| March/April 2020

and numbers into an encrypted output of a fixed length. A hash is created using an algorithm and is essential to blockchain security. A formula generates the hash, which helps to protect the security of the transmission against tampering. Linked records: The blockchain encrypts and connects records between nodes, but also associates the order in which they were introduced into the blockchain. Time-stamped block: Blocks store multiple types of information about the record, such as username, dates, times and amounts. It also creates a unique identifier — a hash — that is only used for a specific block. What makes the blockchain so secure is that it creates a “hash” that points back to the previous item in the ledger. For example, if there are four blocks in the chain, and a hacker tries to change block four, it cannot occur unless it changes block three, two, and so on. Blockchain operates on the immutability of not being able to change an entire chain in this manner.

ABOUT CRYPTOCURRENCY AND WHY IT IS ON THE RISE Cryptocurrencies — like Bitcoin — operate on the blockchain. Think of them like “apps” based

on blockchain technology. Digital currency exchange companies broker transactions for buying and selling them. Miners verify transactions and then place them on the public ledger. Using complex algorithms and sophisticated computers, the first miner to verify the transaction is awarded a cryptocurrency payment under a system called proof-of-work. Bitcoin accounts for nearly $6 billion in daily transactions. Analysts predict the likelihood of cryptocurrency transactions to increase over the next five years with a market cap of almost $1 trillion. Obviously, there is a robust level of support from cryptocurrency users, but what puts this form of payment in such high demand? The three driving factors of cryptocurrency are utility, scarcity and demand.

Scarcity and demand are familiar economic drivers that are understood easily. If people want more of something and there is a limited number of it, that will drive the value and number of transactions.

BUT WHAT ABOUT UTILITY? The utility is the benefit that purchasers gain from the transaction. This point is critical to internalize because law firms will see an increase in cryptocurrency transaction requests from both clients and other partners or parties. As a matter of fact, Nebraska lawyers can now accept cryptocurrency as payment according to an advisory opinion published by their Lawyers’ Advisory Committee, an ethics committee appointed by the state’s supreme court. Litigators now have an additional option to offer clients paying for

their legal services. Bitcoin transfers value — or “bitcoins” — anywhere in the world. The Nebraska Ethics Advisory Board has approved the acceptance of Bitcoin by law firms due to the uptick in use of digital currencies in other jurisdictions, albeit with strict requirements on when and how the currencies can be accepted. Lawyers should consider the strict requirements that come with accepting digital currencies when deciding whether to use them in their practice, caution leaders of the ABA Section of Litigation. For those of us with our toes in the water, starting to understand the current and future uses of blockchain in the legal world is important.

Adriana Linares (mto@sdcba.org) is the San Diego County Bar Association’s Member Technology Officer.

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20 YEARS OF NATIVE AMERICAN LAW PRACTICE THE START OF A JOURNEY By Ted Griswold

ever doubt the value of an after-work meeting with an old colleague — it may set you on a path you never envisioned.

Intrigued, asking questions, I began to get a glimpse of a world literally beneath my feet, about which I knew nothing. I had to know more. With a successful environmental law

In the mid-1990s, I was meeting my former office mate and biologist from my previous career as a wetland ecologist. He and a partner owned a consulting company that was doing biological and cultural work on local Native American reservations.

practice and good clients at Procopio, I woke to a new calling: represent tribal communities.

“Indian reservations in San Diego? Where? I grew up a multigenerational ‘native San Diegan.’ I don’t know about any reservations in San Diego.” His partner advised, “Ted, don’t ever say that to an indigenous person — they have been here for over 10,000 years.” I was instantly humbled.

I looked back at history, but from a different perspective than what we learned in public school. Why are there 18 Native American tribes in San Diego County — more than any county in the country? Where are they? What is their history? Works of local archeologists and American Indian historians, articles from the San Diego Historical Society, and talking with local professors and writers helped me become more familiar. I asked a lot of questions and wasn’t afraid to feel naive.

“Early on, we recognized that Native Americans are perhaps the least represented communities in the legal profession.”

SAN DIEGO LAWYER

| March/April 2020

I set about learning the underpinnings of federal Indian law, sovereignty, Supreme Court interpretations of the Constitution, and treaties. I learned the concepts of “domestic dependent nations,” self-governance, and the trust relationship between the federal government and American Indian people. Many scholars helped me refine and develop a new knowledge base. Federal Indian law — federal laws and decisions that apply to tribal communities — differs vastly from tribal laws — the sovereign laws, ordinances, resolutions, councils and traditions that are unique to each tribal government. Knowledge of both is critical to representing tribal clients. As my knowledge base grew, I recognized it was even more important to understand the people I would represent. I am not a member of any tribal community, but I became aware that the community I came from had done some very significant harm to indigenous communities over the past few hundred years. Trust and understanding would be my biggest challenge. I started to attend tribal gatherings to begin to understand who I was hoping to represent. It was awkward; I was an outsider. Still, when I explained I was there to learn, dialogue came. Although I never felt rejected, trust would be hard-earned.

As one tribal leader explained: “You know how you feel here? That’s how many of our people feel when they’re in your environment. Remember that.” I have. A breakthrough came after about 18 months. A local tribal leader asked for help in resolving a federal endangered species issue on their reservation that threatened plans to construct a casino on their land. An expedited resolution of the issue allowed me to assist with permitting for the project. With the development, this poor community was finally able to fund improvements I had always taken for granted. The Tribe could develop a sewer and water delivery system and other utilities where there were none. They could fund educational and social programs, build roads and a fire station. People would move from trailers into real homes. We would develop a legal system and intergovernmental agreements that would lead to the removal of meth labs, junk yards, squatters and slumlords on reservation land. The work was challenging and exhilarating. We were making a difference. My clients shared their appreciation with others; new clients came. The practice was so varied, the needs so great. The solution: a bigger practice group.

attorneys would need to learn to apply these areas of expertise to federal Indian law and tribal law; they would need to learn the culture of tribal communities we serve. The effort began with monthly learning sessions focusing on one or more aspects of Native American law,

or an introduction to a portion of the culture of the communities we serve. We also developed The Blogging Circle, a blog dedicated to sharing ideas about Native American legal happenings and named after a “talking circle” — a traditional way tribal nations ensured all voices are heard on a tribal council.

Procopio’s Native American Practice Group (NAPG) looked to become a resource that Tribal communities were not used to — to provide a wide array of expert legal services from a “downtown law firm.” We already had significant experience with business, real estate, taxes and taxation, employment, health care, intergovernmental agreements, legislation, environmental, construction and utilities. The NAPG Native American artwork from Ted Griswold's collection

At the same time, we began representing several nonprofits serving tribal communities, providing pro bono services to give our NAPG lawyers opportunities to work closely with tribal communities, increasing our collective understanding and immersing our practice in the tribal community. We also support tribal community events through sponsorships and volunteer help — to demonstrate to the tribal communities that we are here to benefit their community. Early on, we recognized that Native Americans are perhaps the least represented communities in the legal profession. To combat this, we worked with local schools and

the American Indian Recruitment Program to encourage local tribal students to pursue higher education — perhaps even law as a career. We created an annual Native American Law Student Internship in 2012, which receives nationwide applicants. This effort attracted Native American lawyers to the firm, who have helped solidify the entire team’s dedication to the practice area. Glenn Feldman, a national leader in tribal gaming law who argued the seminal Supreme Court case of California v. Cabezon, recently joined the team. Today our practice includes representation of tribal governments, their corporations and entities,

intertribal groups, and businesses that work with tribes primarily in California and Arizona. It includes gaming business and compacts, real estate, finance, large project development, litigation, indian health care, employment, tax and taxation, environmental, self-governance agreements, tribal governance, renewable energy, infrastructure development, education, cultural resource protection, intellectual property protection, litigation, and intergovernmental consultation and negotiations. Knowing that these clients have been in San Diego for 10,000 years, we feel we have just begun our service to our tribal communities.

Ted Griswold (ted.griswold@procopio.com) is founder of Procopio’s Native American Practice Group and chairs the firm’s Real Estate and Environmental Practice Team.

NATIVE AMERICAN LAW INTERN PROGRAM By Edward McIntyre

n 2012, Procopio, as an aspect of its Native American Law Practice, initiated a Native American Law Student Internship program. Annually, the firm recruits candidates from across the country — all have completed their second year of law school — from among both members of indigenous peoples and students who have demonstrated an interest in Native American Law. In its first year, the program had one intern; since then, there have been two each year. The program — unlike many law firm summer programs — was not intended primarily to be a recruiting tool. Rather, its purpose, according to Ted Griswold, former chair of the practice group, is to

increase the capabilities of the Native American Law bar throughout the United States, where there are not enough indigenous lawyers and judges. Law schools represented in the program include: University of Arizona, California Western, Notre Dame, University of Oklahoma, Duquesne, Harvard, University of New Mexico, University of Michigan, UCLA, University of Montana, Yale and University of Kansas.

J.D./Ph.D., focusing on indigenous water governance; Assistant General Counsel of a gaming enterprise; Associate Tribal Judge; Tribal Justice Specialist at UCLA’s Tribal Law & Policy Institute; clerk for a state Supreme Court Justice; student pursuing a joint J.D./M.D. program at Duke; and associates at various fine law firms. Recent graduates have returned to their respective schools, committed to further the interests of tribal sovereignty and tribal economic development.

To judge the program’s success, postintern careers of some graduates speak volumes: field attorney for the NLRB; Senior Counselor to the Assistant Secretary of Indian Affairs;

SAN DIEGO LAWYER

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

March/April 2020

THE BUSINESS OF LAW

THE

BUSINESS OF LAW By James D. Crosby

e lawyers are privileged to do meaningful, interesting work for the benefit of others. But the practice of law is substantially different from, and often at odds with, the business of law. Legal work is interesting, challenging and engaging. But we also need to make money to pay our bills, support our families, sustain our personal lives, and build financial futures for ourselves and our families. To sustain any degree of long-term financial stability in this business, lawyers must run, or service, their law practices like businesses. The business of law requires lawyers to learn and exercise, with sustained discipline, a wholly different set of skills than does the practice of law. Whether you’re a solo or with a large firm, running your law practice like a business based on thoughtful, deliberate decision-making is not always easy, but it is the key to long-term success.

This column, and future editions of San Diego Lawyer, will address the business of law. For today, here are two tips for running your practice like a business.

Business Plans To successfully run your practice like a business, whether you’re a solo, an associate in a mid-sized firm or a managing partner of a huge one, you must have a plan. Create a detailed business plan for your practice at the end of every year for the coming year.

SAN DIEGO LAWYER

| March/April 2020

You will find the exercise of creating that plan is almost always more important than that actual finished product. The exercise of creating the plan forces one to judge business performance over the past year against the prior year’s plan and to adjust, as well as to focus on long-term trends, both good and bad, in one’s practice. For me, this exercise takes place over the course of December each year. I start with a general statement of my business goals for the coming year and then break that down into more specific monetary, practice performance and practice development goals. I then develop a business plan (or modify last year’s plan) with different components and my goals for those components for the coming year. For example, you may use “Personal Activities and Engagement” as a component and set forth goals for personal engagement with referral sources, participation in professional organizations and boards, and other professional activities, etc., or “Digital Activities and Engagement” as a component to set goals for your professional online life. Just the organization of your business plan will, in and of itself, force you to look at your practice as a business, to assess what is working and what isn’t, and to make modifications. For me, it is a great year-end exercise — to look back at the year and gauge my performance against the year’s plan in order to look forward and make thoughtful and reasonable changes in a new plan for the coming year. It forces me to take a good hard look at my practice on at least an annual basis to see what is working or, perhaps more importantly, what isn’t and to make course corrections.

THE BUSINESS OF LAW Budgets To successfully run your practice like a business, you must develop, and continually gauge your performance against, a well-considered yearly budget incorporating expected collections and expenses. As part of my yearend business planning, I create a detailed budget for the coming year incorporating my planned monthly and yearly collections based on the monetary components of my business plan and my anticipated monthly and yearly expenses. This exercise, again, forces me to look realistically at expected money in and money out over the coming year, and to vet my expenses accordingly in order to meet the yearly profit goals. This yearly exercise requires me to evaluate where the money goes to run my practice, and the necessity and/or efficacy of my expenditures going forward. Expense creep through inertia and lack of planning simply sucks money from your practice and your wallet. Even for associates in firms with little control of firm expenditures, budgets make sense, especially on the collection side. Set a monthly/yearly budget for yourself based on the firmâ&#x20AC;&#x2122;s expectations for your performance and your expected or allowed business development

budget. Then, regularly gauge your performance over the year against that budget. Stay on that budget, discuss it in your performance review and get that big bonus, nice raise or new partnership at yearâ&#x20AC;&#x2122;s end. Financial performance is a principal component to advancement and greater compensation in any firm. Developing a budget to gauge such performance is essential. Business plans and budgets are important to any successful law practice because they set business goals and metrics against which ongoing performance can be judged. But, perhaps, the significance of business plans and budgets is not in the finished products themselves, but rather in the thought process that goes into producing them. Thinking about how and from where new work is generated, how much money that work will generate, and where that money goes once it comes in the door is the essence of business planning and a critical component to the business of law.

James D. Crosby (crosby@crosbyattorney.com) is a solo business litigation and trial attorney.

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THE BUSINESS OF LAW

TAX CONSIDERATIONS IN OPERATING A LAW OFFICE UNDER THE TAX CUTS AND JOBS ACT By Alexandra Eaker Pérez

s tax season approaches, lawyers and business owners alike can potentially benefit from keeping a few things in mind about the Tax Cuts and Jobs Act, commonly known as the TCJA. The TCJA now has two tax years behind it, tax year 2018 and tax year 2019, the latter of which is coming due for tax filing this July 15, 2020. The Tax Cuts and Jobs Act presented the most sweeping business tax reform in the United States in over 30 years, and with the new changes come new opportunities for business owners and lawyers alike. The TCJA created a potential business deduction for pass-through entities like sole proprietorships, S corporations, and partnerships to allow for a business deduction of up to 20% of qualified income. The potential deduction against qualified business income is limited by the amount of taxable income of the business owner(s) and the kind of business. Congress limited the amount of the deduction for businesses “in the fields of health, law, accounting, actuarial science,

SAN DIEGO LAWYER

performing arts, consulting, athletics and financial services.” This means that in 2019, the threshold for law firm business owners is taxable income up to $321,400 if married filing jointly, or up to $160,700 for others. For income within this threshold, the pass-through deduction is equal to 20% of the business owners' qualified business income (QBI), the maximum possible pass-through deduction. The deduction is phased out and null once total income reaches $421,400 for married filing joint or $210,700 for others.

passed by Congress, the U.S. may be positioning itself to become the world’s next tax haven.

Law firm business owners are encouraged to check in with their tax professionals now as this 20% deduction on business income is set to sunset and expire on December 31, 2025.

All of the business tax reform above means that now is a great time for a form of entity checkup. Working with a qualified tax professional will help business owners evaluate their current business structure and options.

Non-pass-through business entities also benefit from the revisions of the TCJA. The reduction in corporate tax rates has created an interesting environment in the U.S. with a maximum corporate tax rate of 21%, prompting a substantial increase of inbound foreign investment. To put it another way, through the tax reform

| March/April 2020

Bonus depreciation further sweetens the corporate tax reform. For certain qualified property placed in service after September 27, 2017 through December 31, 2022, taxpayers may be able to expense 100% of the cost of the property. It is important to work with a qualified tax professional to help assess and determine what property is qualified and appropriate for each business.

Another crown jewel of the TCJA for business owners and investors alike is the creation of Opportunity Zone properties. In order for real estate to be classified as an Opportunity Zone, the property or area must be designated by the state and subsequently certified by

THE BUSINESS OF LAW

“The Tax Cuts and Jobs Act presented the most sweeping business tax reform in the United States in over thirty years...” the Secretary of the U.S. Treasury, via the IRS. To be eligible for the tax advantages of investing in the specified real estate, a corporation or partnership must create an investment fund and comply with the IRS requirements for designation. Once the Qualified Opportunity Zone Fund is designated, the fund must

invest in at least 90% of assets in designated Opportunity Zones to be eligible for the preferential tax treatment. If the investor invests in substantial improvements equal to the original value paid by the fund in the property within the specified time frame to do so and holds the property for 10 years, the gains on the sale of the property will be tax-free.

Now more than ever it is important to work with a qualified tax professional. When Congress passed the TCJA, it created new tax laws which left the IRS to pass treasury regulations promulgating and clarifying the application of the tax laws. With new law comes new levels of ambiguity that create new challenges in application. The IRS is just beginning to audit 2018 tax returns, the first year of tax filing under the TCJA. Case law has not yet allowed the courts to fully vet the TCJA application through judicial review and judicial challenges to the TCJA are inevitable. Alexandra Eaker Pérez (aperez@eakerperezlaw.com) is the founder of Eaker Pérez Law, a law firm dedicated to representing business owners in civil tax litigation, criminal tax defense and administrative tax issues.

On becoming President of the San Diego County Bar Association and opening the San Diego offi fficce of the California Appellate Law Group LLP!

Learn more about us at www.calapplaw.com or contact Johanna directly at www.calapplaw.com/johanna

THE BUSINESS OF LAW

CHART A NEW PATH ALTERNATIVES TO LAW PRACTICE By Jeremy M. Evans

any business people hold juris doctor degrees (J.D.), but do not practice law.

There are some jobs that list J.D. degree preferred because the idea of hiring someone with a legal education is beneficial for the company. There are also attorneys and law graduates who become business executives because they love careers focused on management, business development, sales, and relationship development. All in all, alternative careers for individuals with a legal background are more common than the general public may think. Why earn a J.D. and not practice law? There could be a realization that

necessary to protect the profession. The opposition argues that an easier exam would open the proverbial doors to qualified individuals who just have a difficult time taking exams. California has roughly a 50% bar passage rate, which leaves a host of people in the market who have some experience with the law, have a passion for it and work in the legal industry, but do not hold a license to practice law and wish to do so. Alternative career paths for law graduates or legally educated individuals often provide a diverse skill set and are welcomed in other professions besides the legal industry. For example, in business,

one likes doing something different beyond the law. It is not for everyone, even attorneys. Travis Clarke with Wasserman in Carlsbad provides some insight on being a law graduate in a non-attorney job: “I never set out in law school with the ultimate goal of being a licensed attorney. I viewed obtaining my J.D. as a way to further differentiate myself and provide me with another tool to be successful. It got me to where I wanted to be and has helped me excel. Often times people view having a J.D. only through the lens of being a licensed attorney. However, it provides so much more and people shouldn’t be afraid to shun the norm and chart their own path in this field.” Another deterrent may be that the examiners at the State Bar of California traditionally issue a difficult exam. Many proponents say a hard test is

SAN DIEGO LAWYER

| March/April 2020

diversifying your deal-making partners for transactional, litigation or consulting matters (e.g., not just using attorneys) with those who have a legal background will help and one does not necessarily need to be an attorney to be successful. Success should be measured by impact and not necessarily with a license.

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 BUSINESS OF LAW

FINDING GOOD HELP THESE DAYS: BEING A GOOD EMPLOYER By Michael G. Olinik

ust as with any business, a successful law firm also needs to be a successful employer. Budgeting for employees and navigating the complex employer requirements is just as important as recruiting the best candidates and fostering a happy work environment. Whether a solo attorney practice is seeking to add its first paralegal or an international law firm is trying to staff an office of 100 attorneys, a law firm must comply with municipal, state and federal employment laws to survive, and must keep its employees happy to thrive. Before making the jump to employer, some attorneys turn to contract workers to fulfill labor needs. With the recently enacted Cal. Labor Code § 2750.3, however, many positions that were once thought of as “independent contractor positions” are now classified as employee positions. While there is an exception to the new law for attorneys, in certain circumstances, independent attorneys may be considered as employees. With the penalties for misclassification being so onerous, many firms are reconsidering who is an independent contractor and who is an employee. For a solo attorney, the initial decision to hire employees is a big step. “When you hire an employee, you become responsible for their livelihood,” says Rachael Callahan, of San Diego Evictions in Mission Valley. “Employees must get paid even if business is slow. Finding the appropriate wages to attract the talent you need while ensuring your business is profitable is a delicate dance.” Wages are not the only concern for an employer — there are added payroll taxes, unemployment insurance and

worker’s compensation insurance to go along with creating an employee handbook that accurately reflects all local, state and federal employee laws. Once the hiring is done, fostering a positive work environment is important for firms of all sizes. Finding good employees is tough, and keeping them can be just as difficult. According to Ms. Callahan, “All employees, including attorneys and staff, must be able to work together or no work is going to get done. An employer must be wary of having too many cooks in the kitchen for one task, while other tasks remain unfinished.” Avoiding conflicts is important, but sometimes conflicts cannot be avoided. Once there is a conflict, the time it takes to resolve that conflict distracts workers from work that needs to be done for the firm. Growing pains are also an issue, regardless of the size of the firm. “When deciding to grow, you are betting that your business will be able to grow as well,” Ms. Callahan says. “If you grow too quickly, you may have to make painful cuts that hurt the business and hurt morale.” To any business, employees are a necessity. Knowing how to be a good employer will help keep employees happy, the clients satisfied and the firm growing.

Michael G. Olinik (michael@oliniklaw.com) is the founder of The Law Office of Michael G. Olinik.

SAN DIEGO LAWYER

March/April 2020

THE BUSINESS OF LAW

PRACTICING LAW AT HOME AND ABROAD By Hailey Johnson

he global business network grows every day and professional opportunities grow right alongside it. As a lawyer, one may seek out these new opportunities in order to expand their own practice at home, across state lines, or even internationally. The expansion of one’s practice, especially to an international level, is a chance to gain further expertise in a practice area and therefore open doors to clients with international needs.

After attending Faculdade de Direito de Vitória and graduating summa cum laude in 2009, Brunoro passed the Brazilian Bar exam and was licensed by February 2010. At that point, she was eligible to sit for the California Bar exam; but first, she went back to school. In 2012, Brunoro graduated cum laude and earned an LL.M. degree in Business and Corporate Law from the University of San Diego.

There are multiple routes to working abroad and some may be more attractive than others. To name a few, lawyers can choose to work for large law firms with international offices; work as Judge Advocate Officers overseas; or relocate to countries like Belgium and Germany where nonresidents with a U.S. license are permitted to practice law. Potentially the most time-intensive preparatory option is to earn multiple law degrees and pass the bar in different countries in order to practice in two countries simultaneously. We are lucky to have some of those lawyers, and their extensive knowledge of multiple legislatures, right here in San Diego.

As a licensed attorney in both Brazil and California, Brunoro now specializes in tax law and transactional business. She primarily lends her expertise to Brazilian clients hoping to bring their businesses to the United States. However, part of her practice also

Growing up in Vitória, Brazil, Paula Brunoro never aspired to be a lawyer. Her future plans held everything from professional volleyball player to veterinarian or doctor. However, to no surprise of her parents, her strong persuasion skills and desire to help people ultimately led to law school.

SAN DIEGO LAWYER

Again, wasting no time, she then sat for the California Bar exam and earned her license in December 2013.

includes assisting U.S. clients with business needs in Brazil, such as setting up subsidiaries. Brunoro’s route to international practice mirrors Antonio Maldonado, who is licensed in Mexico, New York and California. Both Brunoro and Maldonado began their legal education outside the U.S. and subsequently made their way to California. Of course, due to differing requirements for law practitioners in Brazil and Mexico, their paths are not identical. Maldonado attended the Instituto Tecnológico y de Estudios Superiores de Monterrey, where he earned his Licenciatura en Derecho (law degree). To practice law on a national level, Maldonado then had to pass the

| March/April 2020

Centro Nacional para la Evaluación de la Educación Superior, or CENEVAL, and complete a six-month practicum to earn a cédula profesional (professional certificate). After earning his law degree and licensure in Mexico, Maldonado worked at a law firm in Monterrey before his admission to American University’s Washington College of Law in Washington, D.C., where he completed his LL.M. He then began his practice specializing in U.S.-Mexico cross-border business transactions and litigation, as well as cross-border probate matters. Given their respective knowledge of languages, both attorneys were well-equipped to practice internationally. Brunoro speaks English, Portuguese, Spanish, French and a bit of Russian. Maldonado is fluent in Spanish and English, as well as conversational in French. Although they each have a leg up with languages, practicing in two countries can still prove to be a challenge. Brunoro faced her main hurdles in the U.S. “Although the Brazilian Bar is a very difficult and competitive exam, I was taking it in my native language, and I had deep understanding of the law. In the U.S., I had to learn all material during the prep courses,” says Brunoro. “Also, my training has always been in civil law; hence, having to think and analyze the law as a common law attorney was very different than what I was used to.”

THE BUSINESS OF LAW Likewise, Maldonado found the disparate legal traditions of Mexico and the U.S. the most challenging aspect of practicing in both countries. As he explains, â&#x20AC;&#x153;Mexico is a civil law country, which has its origins in Roman Law and its Civil Codes were influenced by the Napoleonic Code. On the other hand, the United States is a common law system based on English common law.â&#x20AC;?

Meanwhile, Brunoro reports she has been able to â&#x20AC;&#x153;help several of my fellow countrymen and women to achieve their American dreamâ&#x20AC;? with her license in Brazil and California. Her American clients also feel more comfortable working with an attorney who has extensive knowledge of both countriesâ&#x20AC;&#x2122; legal systems.

Despite the hurdles, both attorneys leverage their knowledge to support clients at home and abroad. Maldonado brings his expertise to both jurisdictions, as well as parallel judicial proceedings with his knowledge of Mexican law, including knowledge of U.S. law and the treaties between the countries.

There are many roads to international practice, all of which certainly have their own pros and cons. Attorneys like Paula Brunoro and Antonio Maldonado utilize their extensive education and prowess to tackle the rewarding challenge of international practice every day.

Hailey Johnson (hjohnson@sdcba.org) is the Publications and Content Coordinator for the San Diego County Bar Association.

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Open submissions: Tell the SDCBA about your adventures! Whether it was for a conference, professional opportunity or family vacation, we'd like to hear about your trip. Send us a brief description (100 words or less) of your experience, along with any photos you took. Selected submissions will be featured in the July/August issue of San Diego Lawyer.

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Construction Inc.

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The Travels of Lawyers

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THE BUSINESS OF LAW

GENERATION Z: WELCOME THE WORKFORCE OF THE FUTURE By Dawn Andrews

espite the decline in U.S. life expectancies in recent years, people are still living longer.1 Due to advances in medicine and financial necessity, many of them are continuing to work into what was historically considered retirement age.2 With five generations in the workplace, many employers are grappling for the first time with multidimensional, age-related conflict. The good news is that age-diverse teams are more productive, more creative and better at complex decision-making. Age diversity also helps stabilize tenure andturnover. There is definitely a business case for age diversity in the workplace. The bad news is that age diversity can create conflict, as recently illustrated by the media uproar over the use of the catchphrase “OK, Boomer,” which is sometimes used to dismiss or mock attitudes stereotypically attributed to the baby boomer generation.3 Younger generations complain that so-called boomers are out of touch, resistant to change and not tech-savvy. On the flip side, some boomers complain that younger generations have “Peter Pan syndrome,” are lazy, entitled or spend too much time on their cellphones. Much of this criticism has been levied at millennials.4

SAN DIEGO LAWYER

| March/April 2020

This year, the oldest millennials are turning 39 (yes, you read that right), making them almost eligible for age-related protections under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§621, et seq. Millennials now comprise more than a third of the U.S. workforce.5 As a result, the focus of age-related conflict in the workplace is shifting to the next generation, most often referred to as Generation Z. The oldest members of this new generation have just entered their 20s. As the most populous generation since the baby boomers, Generation Z comprises 36% of today’s workforce.6 It is important to note that generational labels are of somewhat limited utility. They are generally intended to reflect loose boundaries between age groups as determined by the key political, economic and social factors that informed their formative years. For example, baby boomers experienced the expansion of television. Generation X came of age during the computer revolution. Millennials experienced the internet explosion. In contrast, Generation Z has never known a time without constant connectivity. Despite these commonalities, the differences among people within any generation can be even greater than the differences between generations. Generational divides are, at best, a starting point for understanding group behaviors and attitudes.7

THE BUSINESS OF LAW

“... Generation Z workers are tech-savvy; they are the first digital natives. They are willing to work hard, but want flexible conditions. They are independently-driven and competitive, but value interaction and feedback.” What do we know about this new generation of workers? To begin with, Generation Z is the most racially and ethnically diverse generation in United States history.8 While we can imagine the effect their diversity may have on their views, the views of this generation have not been fully studied and could change considerably with changes in national and global events and developments. What we know so far is that Generation Z workers are tech-savvy; they are the first digital natives. They are willing to work hard, but want flexible conditions (think flex schedules and remote work options). They are independently-driven and competitive, but value interaction and feedback. They are intellectually curious and desire security in recession-proof jobs (probably a succession of them as Generation Z workers change jobs three times as frequently as previous generations).9

The key to engaging this new generation of workers is simple: foster an age-inclusive culture. Be deliberate in creating age-diverse teams; • Become an employer of choice by offering employee-centered programs and benefits like paid Kin Care, generous amounts of vacation and student loan forgiveness. • Treat Generation Z employees with the same level of respect you would someone your own age and tenure. • Take action to stop disrespectful conduct in the workplace. • Evaluate employees based on performance, not presence. As luck would have it, these steps are best for attracting and retaining quality employees of any age. Only when employers consciously create a level playing field and an inclusive culture in which all employees feel welcome to bring their whole selves to work can employees reach their performance potential.

Dawn Andrews (dandrews@sempra.com) is the Director of Diversity & Inclusion for the Sempra Energy family of companies.

Footnotes 1.

Linda Carroll, “U.S. Life Expectancy Declining Due to More Deaths in Middle Age,” Reuters, November 26, 2019, https://www.reuters.com/ article/us-health-life-expectancy/u-s-life-expectancy-declining-due-to-more-deaths-in-middle-age-idUSKBN1Y02C7.

Harriet Edleson, “More Americans Working Past 65,” AARP, April 27, 2019, https://www.aarp.org/work/employers/info-2019/ americans-working-past-65.html.

Taylor Lorenz, "'OK Boomer' Marks the End of Friendly Generational Relations". The New York Times, October 29, 2019. Retrieved November 4, 2019.

Joshua Bote, (4 November 2019). "Why are Gen Z and millennials calling out boomers on TikTok? 'OK, boomer,' explained". USA Today, November 4, 2019. Retrieved November 4, 2019.

“Millennials are the largest generation in the U.S. labor force,” Pew Research Center, April 11, 2018, https://www.pewresearch.org/ fact-tank/2018/04/11/millennials-largest-generation-us-labor-force/.

Laura Gayle, “How Generation Z Is Transforming the Workplace,” https://www.financialexecutives.org/FEI-Daily/August-2019/ How-Generation-Z-Is-Transforming-the-Workplace.aspx.

“The Whys and Hows of Generations Research,” Pew Research Center, September 3, 2015, https://www.people-press.org/2015/09/03/ the-whys-and-hows-of-generations-research.

“Nearly half of post-Millennials are racial or ethnic minorities,” Pew Research Center, November 13, 2018, https://www.pewsocialtrends. org/2018/11/15/early-benchmarks-show-post-millennials-on-track-to-be-most-diverse-best-educated-generation-yet/ psdt-11-15-18_postmillennials-00-00.

Laura Gayle, “How Generation Z Is Transforming the Workplace,” https://www.financialexecutives.org/FEI-Daily/August-2019/HowGeneration-Z-Is-Transforming-the-Workplace.aspx.

SAN DIEGO LAWYER

March/April 2020

SAN DIEGO LAWYERS GIVE BACK AT 2020 MOCK TRIAL COMPETITION By Julie Houth

Second place winner Francis Parker School

an Diego County high school students who are part of their school’s mock trial teams participated in the Constitutional Rights Foundation’s (CRF) annual Mock Trial Competition Program from February 5 to 22, 2020. The San Diego County Bar Association (SDCBA) and the San Diego Superior Court helped to coordinate this program approximately 14 years ago and the program is funded by donations made to the San Diego Justice Foundation. This year’s competition was the largest to date. There were 32 high schools from throughout San Diego County. The program welcomed attorney volunteers to participate as attorney scorers. The time commitment for each trial was approximately three hours in addition to the time necessary to review the competition materials prior to the competition. More than 275 attorney volunteers were needed to score the mock trials. Attorney scorers sat in the jury box while the student teams presented their cases to a state or federal judge. Attorney scorers were given a set of criteria for rating the teams numerically, which included the quality of the students’ presentations, their grasp of the law and court procedures, and their understanding of the case itself. Attorneys also volunteered as judges, advisors or coaches to student teams. Warren Den, a 2020 Director on SDCBA’s Board of Directors, has been the attorney coach for the Academy of Our Lady of Peace for the past two seasons. He provided some insight on his experience as an attorney coach: “Our team has a total of two attorneys coaching in addition to two teacher coaches. The teacher coaches are responsible for the logistical issues of recruiting

SAN DIEGO LAWYER

| March/April 2020

students for the team, scheduling the practices, and communicating with the administration and the parents. The attorney coaches are responsible for instructing the team members on all aspects of conducting a trial and all relevant aspects of the law that are contained in the Mock Trial Competition packet. The team met twice a week since the fall. Shortly after practices begin, auditions were held to determine assigned roles. More experienced members of the team were encouraged to audition for attorney roles. In addition to the biweekly practices, the team engaged in several live scrimmages throughout the season. I consider it a tremendous honor and privilege to be permitted to coach these high school students. I am constantly impressed by the team’s commitment and dedication to improvement. Their enthusiasm and energy are infectious. Further, their support and encouragement for one another could sorely be mirrored and modeled in real-world legal workplaces. In addition, the significance of competing with an all-female mock trial team is not lost on the competition or myself. I would encourage any attorney who is on the fence to take the plunge and pick a high school team to coach. You will not regret the decision.” The competition provided an excellent opportunity to educate students about the importance of the justice system, and participation is as rewarding for the attorney volunteer as it is for the students.

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

The Bishop's School, winner of the first annual Judge David H. Bartick Civility & Sportmanship Award with Hon. Jill L. Burkhardt

Attorney volunteer scorers

First place winner Cathedral Catholic High School with Hon. David M. Gill

SAN DIEGO LAWYER

March/April 2020

REMEMBERING

JUSTICE WILLIAM L. TODD By Charles Grebing

n January 30, 2020, Justice William L. “Ted” Todd Jr. passed away. Only two months before, Ted celebrated his 90th birthday with a group of friends and relatives. His sharp mind, wit, and ever-present sense of humor demonstrated that this giant of a figure in our legal community had lived life fully. While always placing God, his wife Paula, and his accomplished children above all else, Ted exhibited the best in what could be accomplished through the various stages of his life and career. His commitment to family values and an adherence to a strong moral code were evident in everything he did. The same was true for his professional life. In high school, Ted used his last two years as a credit toward a degree at Pasadena Community College. Even while an undergraduate, Ted was solicited to apply for and became a member of the student body at USC School of Law. His law school career was interrupted with two years of service in the United States Marine Corps. His training, discipline and service as a Marine played a large part in his subsequent professional career.

SAN DIEGO LAWYER

| March/April 2020

Following graduation from USC, Ted joined the Moss, Lyon and Dunn firm in Los Angeles. After several years, he then moved to San Diego and joined the firm of McInnis, Focht and Fitzgerald as their fifth attorney. After approximately a year and a half, Ted joined his law school classmate, Bill Carstens, in forming their own firm, Carstens, Todd, Robinson and Fry. At the time of Ted’s appointment to the Superior Court, the firm was known as Todd, Wingert and Grebing. His career as a private practice attorney litigating primarily civil cases extended over 12 years. He litigated cases in every civil area of law. Those who had the opportunity to watch Ted Todd in trial enjoyed an experience that could not be duplicated. His preparedness, knowledge of legal principles, and mastery of the art of persuasion provided an unparalleled opportunity to learn how jury trials should be conducted. Ted served as President of the Barristers Club of San Diego (1965), as a member of the Board and then President of the San Diego County Bar Association (1970), and as a member of the Defense Research

Institute. He served on the board of management at the YMCA, San Diego and as Planning Chair for the California State Bar’s 1973 conference of Local Bar Presidents. He was President of the American Board of Trial Advocates, San Diego Chapter in 1973.

of the Bar (CEB) programs. He served as a lecturer for the Rutter Group and as a lecturer of Legion Lex. A new Inn was created for the American Inns of Court named after Ted. The Todd Inn of Court is still a vibrant and active American Inn of Court program today.

After his term as San Diego County Bar President, Ted’s very good friend, Judge William Yale, convinced Ted he should submit his name as a candidate for the Superior Court. On June 11, 1974, (the last appointment in San Diego by then Gov. Reagan), William L. Todd Jr. was appointed to the San Diego Superior Court. Judge Todd served terms as a Juvenile Court Judge and also presided over a Domestic Court Department. During that service, Judge Todd served on the California Judges Association executive board (1985-86). While with the Juvenile Court, Judge Todd helped to modify and improve the handling of child abuse dependency cases. A program involving family counseling as part of the Juvenile and Family Court proceedings was created. In April 1986, Judge Todd received the award for “Judicial Excellence” from the San Diego Trial Lawyers Association.

Throughout his career, Ted Todd urged younger Bar members to become involved in Bar Association activities. It was his strong belief that when attorneys met together and shared ideas regarding the practice of law, collegiality grew as a byproduct. He strongly believed that a cordial relationship with lawyers would enhance one’s pleasure in the practice of law and in life.

On September 9, 1986, Gov. Deukmejian appointed Judge Todd as an Associate Justice for the Court of Appeal, Fourth Appellate District, Division One. He retired from that position on December 31, 1994. During his tenure, Justice Todd authored over 200 published decisions in every area of the law. He also served on the California Judicial Council from 1989 to 1991. During the same time, he served as a member of the Board of Trustees of the Claremont School of Theology, a member of the Board of Directors of Sharp Rees-Stealy Corporation and President of San Diego Legion Lex American Inn of Court. Following his retirement, Ted applied his talents as a private judge and mediator. With Ted’s experience as a trial attorney, trial judge and then appellate judge, his particular insight and ability to make a good assessment of what the eventual outcome of a case might be led to many successful resolutions. After approximately 12 years as a private judge, Justice Todd retired. During his time as a trial attorney, judge, and Justice, Ted was an active participant in Continuing Education

Ted was also an active member in the La Jolla United Methodist Church where he sang in the choir for 55 years. His church served as a foundation for the Todd family’s faith and social lives. Ted also knew how to make the most of his free time. is love of golf, coaching his children and enjoying the camaraderie of colleagues, friends and family enriched everyone fortunate enough to participate. His witty banter and honed and sharpened negotiating skills, particularly when placing friendly bets during golf outings, will never be forgotten. Ted believed and taught that although perfection could not always be obtained, total preparation could be. He was not bashful about expressing his displeasure with litigants if their presentations demonstrated the lack of an attempt to achieve either. At the same time, he exhibited an overwhelming sense of fairness, openness and a willingness to listen to all sides of the dispute to make the right decision. As a lawyer, he taught the attorneys in his office, and those who attended his lectures and seminars, that preparation was foremost, combined with honesty and integrity. He believed that the best representation of a client was that which was honestly, forcefully and professionally presented to the trier of fact. Those efforts were ever-present throughout all aspects of his life and career. He will be missed as a legal giant, mentor, colleague and friend.

Charles Grebing (cgrebing@wingertlaw.com) is a Partner with Wingert, Grebing, Brubaker & Juskie LLP.

SAN DIEGO LAWYER

March/April 2020

BOOK REVIEW

Dreyer’sEnglish By Hon. Dwayne K. Moring

rs. Fuller, my ninth-grade English teacher, stressed that the letter “T” was silent when pronouncing the word “often”; that one should eliminate unnecessary prepositional phrases such as to get “off of” an object; and that it was always “toward” and not “towards.”

Flash forward to college, as an undergraduate journalism major, my bible was the Associated Press Stylebook. In law school, I was further introduced to the legal research and writing manuals. Throughout my education, there was always some tome from on high decreeing what was correct grammar, spelling and writing style. In the same way that many attorneys and judges love to obsess on the intricacies of the law or obscure legal theories, writers of all stripes love nothing more than to compile lists of grammatical rules (the better to lord one’s knowledge and peccadillos over others). If you’re one of those people, you will enjoy reading Dreyer’s English written by Benjamin Dryer, the copy chief of Random House. The manual is subtitled An Utterly Correct Guide to Clarity and Style.

SAN DIEGO LAWYER

Mr. Dreyer divides the publication into two halves aptly titled “The Stuff in the Front” and “The Stuff in the Back,” concentrating in the first portion on proper grammatical punctuation rules and the second section on commonly committed word usage, stylistic and spelling errors. Fortunately, in addition to being an expert grammarian, Mr. Dreyer also possesses a snide sense of humor that enlivens the text, resulting in the rare combination of the reader being simultaneously educated and highly entertained from start to finish. For example, I have always tried to keep my sentences relatively short, but Mr. Dreyer debunks that practice early on in Chapter 2 stating, “A good sentence, I find myself saying frequently, is one that the reader can follow from beginning to end, no matter how long it is, without having to double back in confusion because the writer misused or omitted a key piece of punctuation, chose a vague or misleading pronoun, or in some other way engaged in inadvertent misdirection. (If you want to puzzle your reader, that’s your own business.)”

| March/April 2020

Whew. Now, I was tempted to use an exclamation point at the end of that “whew,” but Chapter 3 warns me to be judicious in the implementation of the symbol. One of the most enjoyable aspects of reading style guides is the information they impart regarding everyday misperceptions and grammatical errors. For example, you’ll learn that the abbreviation “USA” is not an acronym. A word is not an acronym unless its initials have gained acceptance as a commonly spoken word. Instead, the abbreviation for our great nation is referred to as an initialism. One caveat regarding Mr. Dreyer’s politics: In this age of admittedly grammatically-challenged presidential tweets, Mr. Dreyer could not resist giving his barbed professional opinion about the quality of the tweets — and his personal distaste for the tweeter-in-chief. I warned you. Mr. Dreyer’s guide builds to a satisfying conclusion with Chapter 10, titled “The Confusables.” This section alone is worth the purchase price of the entire book as it neatly summarizes virtually every primary and secondary school English grammar lesson you

ever received. It’s a mini reference guide ideal for legal professionals (judges, attorneys and court reporters) who strive to remember all those lifelong grammatical rules that were drilled into their heads. Additionally, it may well be the ultimate verbal preparation guide for the SAT. I predict your children will thank you later in life. Much later in life.

JERRY COUGHLAN, MEDIATOR LEGAL MALpRACTICE AND COMMERCIAL LITIGATION

It’s possible that you may initially feel entirely inadequate regarding your command of the English language in either the written or spoken form after you discover the multitude of errors and damage that you likely daily inflict on California’s official tongue. However, that’s unnecessary. Don’t beat yourself up. Just keep a copy of the book within reach of your computer keyboard and refer to it when wavering (Chapter 10, page 208) on the correct word choice. I believe Mrs. Fuller would have loved Dreyer’s English. The work encapsulates many of the axioms, rules and pitfalls that she wisely lectured me to avoid all those years ago. The world now has Dreyer’s English, but my introduction to much of the guide’s content was courtesy of Fuller’s English.

Hon. Dwayne K. Moring

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The Karen Organization of San Diego: Offering Vital Help for Burmese Refugees

(Above) In February of 2019, KOSD received the Kaleidoscope Award for Good Governance from the University of San Diego recognizing their good governing board!

O ne of the biggest challenges for refugees is adjusting to American life, in particular navigating the daunting U.S. justice

(Above) Karen Organization of San Diego (KOSD) was founded in August 2009 to meet the urgent needs of refugees from Burma who resettled in San Diego.

system.

Settling here is particularly demanding for the more than 1,500 refugees from Burma (now known officially as Myanmar). Burmese refugees may have difficulty forming a cohesive community as they don’t all share a common heritage – this mountainous Southeast Asian country is home to over 135 and transportation to medical appointments. With the ongoing ethnic groups. support of the San Diego County Bar Foundation (SDCBF), the organization also helps provide refugees with access to legal A History of Violence services. Fighting in Burma began shortly after the country gained its Through its Advocacy for Equal Access to Justice for Refugees independence from the United Kingdom in 1948. from Burma Project – funded in part by the SDCBF – the Karen Organization is focused on promoting law comprehension The ensuing six decades of strife and violence has forced among San Diego Burmese refugees by facilitating and hundreds of thousands of Burmese people to flee the country. expanding critical legal services. Through the project, the As a result, the number of Burmese refugees to the U.S. has organization provides advocates to assist clients in navigating mounted over the years. Since 2002, about 177,000 refugees the justice system and holds workshops and training sessions to this country have come from Burma. focused on U.S. legal systems and issues. In 2019, topics of the workshops ranged from tenant rights, DUI, family violence, The Karen Organization of San Diego (KOSD), named after the online scams and support programs for victims of crimes. By Burmese ethnic group known as Karen, is committed to the providing essential educational opportunities, KOSD hopes to educational and social enhancement for a range of Burmese prevent incidences of crime in this community and to empower ethnic groups now living in San Diego. The organization offers refugees from Burma to seek justice through the legal system extensive resources and support to help these refugees thrive in the U.S. in a new land.

Filling a Void Recognizing a distinct need, the nonprofit organization was founded in 2009 to help Burmese refugees make a smooth transition into a new life. Based in City Heights, it now supports a mix of refugees from the Karen, Karenni, Burman, Chin, Kachin and Shan ethnic groups, and provides services in an array of areas, including education, interpreting, job training

Access to Justice for All

The charitable arm of the San Diego County Bar Association, the San Diego County Bar Foundation provides access to justice by investing in results and advocacy for people and communities in the San Diego region impacted by poverty, abuse and discrimination. With the help of an independent board of leading local attorneys and businesspeople, the SDCBF carefully reviews applications and selects organizations such as

(Above) In March of 2019, KOSD was honored to welcome Naw K'Nyaw Paw, who received the 2019 International Woman of Courage Award hosted by U.S. Secretary of State.

the KOSD for funding, based on eligibility and need. SDCBF’s grants impact diverse segments of society, including homeless, refugees and wrongly convicted criminal defendants. All fund recipients are making a valuable contribution to at-risk communities in San Diego. By funding important nonprofit organizations such as KOSD, the San Diego County Bar Foundation is working to make lasting change throughout the San Diego region and beyond. For more information about the San Diego County Bar Foundation, or to make a donation, visit www.sdcbf.org.

SAN DIEGO LAWYER

March/April 2020

40,000 CLIENTS

ARE WAITING TO GET REFERRED TO YOU

The SDCBA’s Lawyer Referral and Information Service (LRIS) made over 40,000 client referrals to local attorneys last year. You could be one of those attorneys this year. 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

LITIGATION SETTLEMENT ABOLISHES CIVIC SAN DIEGO’S DEVELOPMENT AUTHORITY By Whitney Hodges

n 2012, Civic San Diego (CivicSD) was formed as a City of San Diego-owned nonprofit to replace the Centre City Development Corp. and the Southeastern Economic Development Corp., branches of the Redevelopment Agency of the City of San Diego (City). The consolidation and rebranding was a direct result of the 2011 Budget Act, which approved the dissolution of the state’s 400-plus Redevelopment Agencies. (See AB x1 26.) Since its introduction, CivicSD was responsible, on behalf of the City, for overseeing planning and project entitlement services in the downtown area — leading to a noticeable proliferation of new and repurposed residential towers, hotels and office buildings over the last few years. Among many, CivicSD was considered a useful tool for growth and has been largely credited for steering downtown’s revitalization due to its efficient processing and permitting procedures. CivicSD’s close ties to the private sector, however, were characterized as “corrupt and illegal” in a 2015 lawsuit filed by former Civic San Diego board member Murtaza Baxamusa and joined by the San Diego Building & Construction Trades Council (Baxamusa v. Civic San Diego, San Diego Superior Court Case No. 37-2015-00012092). This litigation alleged CivicSD ran afoul of the routine checks and balances typically instituted by city governments. On June 4, 2019, the City Council approved a settlement that would dispose of the Baxamusa litigation

and a similar 2018 lawsuit filed by San Diegans for Open Government (San Diegans for Open Government v. Civic San Diego, San Diego Superior Court Case No. 37-2018-00008326). Implemented in July, the settlement required the City, while not admitting any wrongdoing, to nevertheless formally untangle itself from CivicSD. Pursuant to terms of the settlement, all of CivicSD’s development-related responsibilities were transferred to the City. The City has also taken over operations of the downtown parking district and the downtown shuttle service, Free Ride San Diego (FRED). For the next five years, CivicSD has agreed to act as a part-time consultant to the City under an operating agreement that allows CivicSD to manage public works projects that are already in progress, as well as projects tied to the ongoing wind-down of redevelopment. Upon expiration of this operating agreement, the City will have no further contractual ties to CivicSD. Aside from its consulting role, under the settlement, CivicSD has also transitioned into more of an economic development agency. While its powers are limited to handling the continued decommissioning of the former Redevelopment Agency and running community investment programs, CivicSD is also still eligible to receive New Markets Tax Credit allocations, which are special tax credits awarded annually by the federal government.

resulting in the repeal of the district ordinance to allow for regulatory consistency across downtown, and payment of an estimated $750,000 of taxpayer dollars in legal fees to counsel for Baxamusa and San Diegans for an Open Government. This settlement marks a major pivot for San Diego’s development community, which has relied on CivicSD for expedited procedures and approvals. CivicSD’s processes and other eforms meant to support downtown development have made the area one of the most efficient within which to build. Additionally, CivicSD specifically provided design oversight that ensured more cohesive development. While approving the settlement, the City has promised to apply lessons learned at CivicSD citywide, such as assigning staffers who are knowledgeable about specific communities to work on projects in those communities. Downtown developers and advocates are still assessing how services, procedures and timing will change now that all development applications are processed by the City. The fear remains that the dissolution of CivicSD’s entitlement authority could dissuade brand-name firms from undertaking big projects in the region.

Other terms of the settlement included the rezoning of properties within downtown San Diego’s Marina District, SAN DIEGO LAWYER

Whitney Hodges (whodges@sheppardmullin. com) is a partner in the Real Estate, Land Use and Natural Resources Practice Group in Sheppard, Mullin, Richter & Hampton LLP’s San Diego office. |

March/April 2020

THE JOURNEY TOWARD JUSTICE BEGINS HERE STORIES ABOUT THE WORK OF THE LEGAL AID SOCIETY OF SAN DIEGO By Gregory Knoll, CEO

he Legal Aid Society of San Diego has 12 specialized substantive teams. One of those teams is our Consumer Protection team,1 where Senior Attorney Alysson Snow and Lead Attorney Joe Villasenor lead our efforts by tackling novel and complex issues as they represent our most vulnerable San Diegans. Joe Villasenor represented “Mr. K,” an elderly monolingual Korean speaker, against National Collegiate Student Loan Trust 2007-4, after Mr. K was being sued in a debt collection matter in state court. The debts exceeded $30,000, were up to 8 years old, and resulted from serial identity theft by a distant relative to whom Mr. K had never spoken.

of unscrupulous contractors and predatory lenders. The fastest growing form of financing in the nation, the program was designed to provide loans for green home energy improvements. However, PACE has evolved into a price-gouging, equity-stripping scheme, targeting senior citizens with high amounts of equity in their homes, with no consideration of the homeowner’s ability to pay the loan. Alysson has become a nationally recognized leader in PACE litigation, having established new case law in this novel area.

Joe cleared up Mr. K’s extensive credit and identity theft problems, dealt with the debt collection lawsuit and vindicated Mr. K’s rights by filing his own lawsuit in federal court. A settlement followed, and Mr. K fully recovered his damages, attorney’s fees and costs. In February 2020, Alysson Snow was honored by the Consumer Attorneys of San Diego as their Consumer Advocate of the Year. This award recognized Alysson’s representation of low-income San Diegans who struggle to save their homes from foreclosure and predatory lending schemes that threaten home ownership. PACE, short for Property Assessed Clean Energy, was a good intention gone awry in the hands

SAN DIEGO LAWYER

| March/April 2020

Legal Aid’s lawyers fight to improve the lives of San Diegans by providing access to justice. San Diego’s first bankruptcy self-help center and two debt defense clinics were designed and launched by our Consumer Protection Team, and the clinics’ success is largely attributed to our local legal community’s volunteer participation. To volunteer with us, contact lorenas@lassd.org.

1. In addition to Alysson and Joe, the Consumer Protection team includes staff attorneys Mika Wilbur, Fanny Cherng, Jacob Subbotin and the team’s Administrative Assistant, Heather Beck.

WHAT TO DO

WHEN...

WHAT TO DO WHEN YOUR CLIENT FALLS BEHIND ON PAYMENT By Nicole Heffel

f you have been in practice for any length of time, you have undoubtedly had a client or two push your invoice to the side. Here are some tips on what to do when your client falls behind on their payment: First, send your client a friendly reminder that their invoice is overdue. If you send your invoices digitally, it is likely the client didnâ&#x20AC;&#x2122;t see it. A gentle nudge (or two) might be all you need to get their attention. Second, communicate in writing to your client that you will cease

all work on their behalf until their outstanding balance is paid in full. Be stern in your approach, but respectful in your communication with your client. Lastly, ask yourself if the outstanding balance is worth the collection effort. Consider the tax advantages of reporting a business loss and weigh it against a potential malpractice claim.

Nicole Heffel (nicole.heffel@heffellaw. com) is the founding Attorney of Heffel Law Firm.

TUMULTUOUS TERMS

D.A. CHESTER C. KEMPLEY By George W. Brewster Jr.

hester C. Kempley served as the 30th San Diego County District Attorney from November 1922 to December 1926. He won despite a strong write-in campaign for Stephen Connell, and after a tumultuous four years, was defeated by Connell, largely due to Kempley’s conviction for bribery. More on that later.

grinding his bones to powder and feeding the remains to the chickens at Schick’s El Cajon ranch. The motive was love — Schick’s wife was purportedly pregnant with Clark’s child; a jail mate of Clark’s testified that Clark confessed to him and described how he had killed Schick and dismembered the body.

Kempley was born in Wisconsin in 1886. He graduated with an LL.B. from the University of Wisconsin in 1911 and was admitted to the Wisconsin Bar. He wasted no time getting to California and setting up practice in L.A. after being admitted to this state’s Bar in 1911. In 1912, he married Mary Holcomb, a San Diego native, and in 1913, the couple moved to San Diego. Kempley was a member of the California State Bar Association, the San Diego Bar Association and the Lawyers Institute (the later two were consolidated and incorporated in 1921), plus a host of community organizations. He was a Judge of the Justice Court in 1922 when he ran for District Attorney. Soon after Kempley took office as the 30th D.A., the County was rocked by an unfolding sensational murder mystery. A wealthy San Diego real estate agent, George Schick, went missing. Eventually a family friend, Everett Clark, was accused of killing Schick, boiling his body,

SAN DIEGO LAWYER

L-R: Hon. C.N. Andrews, D.A. Chester C. Kempley, Hon. William P. Cary, Hon. Lacy D. Jennings, Hon. Spencer M. Marsh

Even though the body was never found, Kempley successfully prosecuted Clark for murder — the first time in California history that a defendant was convicted without a body or an eyewitness to the murder. In late 1924, Hollywood sailed into Kempley’s jurisdiction. While on board

| March/April 2020

the William Randolph Hearst yacht, which was sailing in the San Diego Bay, Hollywood filmmaker Thomas Ince became seriously ill. He was taken by water taxi to shore, accompanied by Dr. Daniel Carson Goodman, a licensed but non-practicing physician who was Hearst’s film production manager. Ince was quickly put on a train, but removed from it in Del Mar and taken to a hotel for medical care. He was then taken to his home in Hollywood, where he died the next day and was cremated. His death was announced as caused by a heart attack, although the first edition of the LA Times ran a headline stating, “Movie Producer Shot on Hearst Yacht!” The Hearst papers initially said Ince fell ill while visiting the Hearst ranch in San Simeon; other stories focused on the yacht as a possible crime scene, with the most sensational story asserting Ince was mistakenly shot by Hearst, who was aiming for Charlie Chaplin whom he suspected of having a love affair with Hearst’s mistress, actress Marion Davies. (Chaplin’s secretary, one of the passengers, later claimed to have seen Ince when he came ashore and told his wife Ince’s head was bleeding from a bullet wound.) One month after Ince’s death, rumors were still rampant that Ince was murdered, forcing D.A. Kempley to open an investigation. He interviewed only Dr. Goodman,

and quickly concluded Ince died from “heart failure due to an attack of acute indigestion” and closed the case. Hearst newspaper columnist Louella Parsons, who was on board the yacht, was given a lifetime contract by Hearst after the Ince incident. Ince’s wife was provided by Hearst with a trust fund just before she left for Europe soon after her husband’s death (having ordered his immediate cremation). D.W. Griffith said of the incident, “All you have to do to make Hearst turn white as a ghost is mention Ince’s name.” In 1925, Kempley and his assistant district attorney, Guy Selleck, launched an investigation into the murder of one George McMahon,

who was stabbed and beaten. The main defendants were Thomas Johnson and Hugh McGovern. After the defendants were acquitted, it was alleged that Kempley and Selleck had thrown the case in exchange for a payment of $40,000. In late 1926, the San Diego County Grand Jury returned an indictment charging Kempley and Selleck on two counts (bribery and corruption). One of the particulars mentioned was that Kempley and Selleck would get possession of two suits of clothes belonging to the defendants (evidence in the case), switch them or alter them so that they would be smaller, and thus not fit when defendants would try them on in court. (For more details see People v. Kempley, 205 Cal. 441.)

Kempley and Selleck were convicted. While the case was on appeal, Kempley ran for reelection in late 1926 and lost to his previous opponent, Stephen Connell. He left office on December 16, 1926. The convictions were set aside in 1928 with a ruling that precluded retrial, based in part on the fact that the prosecution relied on testimony from a prostitute that Kempley had convicted and sent to prison. Kempley, along with his wife and son Holcomb, moved to Los Angeles to practice law with his father-in-law (Holcomb, Holcomb & Kempley), and passed away in 1961. It was a rough and tumble four years for the Office of the District Attorney.

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.

Wheatley Mediation Services Serving San Diego & Orange County

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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. For more information, please contact our Member Services Department at (619) 231-0781 x3505.

PATRON MEMBERS Marc D. Adelman

James P. Frantz

Raymond J. Navarro

Doc Anthony Anderson

Erin M. Funderburk

David B. Norris

Mylinh Uy Arnett

Douglas A. Glass

Anthony J. Passante

Hon. Victor E. Bianchini (Ret.)

Anthony J. Gizzarelli

Kristin Rizzo

Jedd E. Bogage

Richard A. Golden

Michael J. Roberts

Connie Broussard

Alvin M. Gomez

Ana M. Sambold

James A. Bush

Camille Gustafson

Wendi E. Santino

Jose S. Castillo

Charles R. Hayes

Thomas P. Sayer

Andy Cook

Van E. Haynie

Johanna S. Schiavoni

Steven T. Coopersmith

Matthew C. Hervey

Pamela J. Scholefield

Ezekiel E. Cortez

Stephen M. Hogan

Khodadad Darius Sharif

Taylor Darcy

Richard A. Huver

Renee N G Stackhouse

Warren K. Den

Fred C. James

Todd F. Stevens

Thomas M. Diachenko

A. Melissa Johnson

Christopher J Sunnen

John A. Don

Carla B. Keehn

Genevieve A. Suzuki

William O. Dougherty

Garrison “Bud” Klueck

Kimberly Swierenga

Alexander Isaac Dychter

Don S. Kovacic

Amanda L. Thompson

Matthew J. Faust

Steven Henry Lorber

Thomas J. Warwick

Sergio Feria

Garrett Marshall

Andrew H. Wilensky

Nicholas J. Fox

Jillian M. Minter

Karen M. ZoBell

FRIEND MEMBERS Laura Ashborn

Hon. Bonnie M. Dumanis (Ret.)

Christine Murphy

Rochelle A’Hearn

Susan K. Fox

Anne Perry

Laura Ashborn

Ronald Leigh Greenwald

Kristi E. Pfister

Steven Barnes

Mark Kaufman

Stella Shvil

Linda Cianciolo

Randall E. Kay

David B. Dugan

Marguerite C. Lorenz

WHY I BELONG HON. JOSEPH P. BRANNIGAN San Diego Superior Court Education: St. Peter’s College in Jersey City, NJ

Last vacation: New York City — went to a Yankee home opener! Hobbies: Golf, travel and following current events.

University of San Fernando Valley College of Law in Los Angeles Areas of practice: Currently serving in a Criminal

Favorite book or movie: The Shawshank Redemption. Best concert you’ve ever been to: Andrea Bocelli.

Assignment downtown

Proudest career moment: Being elected by the people of San Diego County to serve as a Superior Court Judge. Family: Bernadette, my wife of 39 years, and our son, Evan.

Most fun/memorable SDCBA moment: Attending the Stepping Up to the Bar swearing-in ceremony of my friend Aaron Katz when he became the San Diego Bar President. Do you have a secret talent? Writing poetry.

If I weren’t a judge, I would be: A high school History/Civics teacher and baseball coach.

What one skill has helped you be successful as a judge, and how could others develop that skill to better their practices? Listening — allowing attorneys and litigants to always feel that they were afforded their day in court.

The best thing about being a judge is: Getting the opportunity to contribute to the justice system every day.

What would you most like to be known for? Being a loyal husband, a loving father, and a professional and fair judge who always tried to do the right thing.

Birthplace: Brooklyn, NY.

How long have you been working at the Bar? Three and a half years and counting.

Meet Your

Bar-ista ANDREW CAVE

DIRECTOR OF MEMBER SERVICES

What are your main responsibilities at the Bar? I manage most of our membership related services, from retention and recruitment to benefit programs, customer support and data analysis. I’m fortunate in that I’m able to both serve individual members directly and work on projects that affect the membership as a whole.

What is your favorite part of your job? When we overdeliver on our value proposition. Whether it’s saving a member money through one of our discount programs or connecting them to resources that support growth in their career, having the ability to instill appreciation for our organization in our members makes it all worthwhile. What is your favorite movie and why? The Big Lebowski. Because the older I get, the more I realize Jeff Lebowski is my spirit animal. What’s your favorite quote? “The Dude abides.” What do you love about San Diego? Craft beer, California burritos and the Padres.

SAN DIEGO LAWYER

March/April 2020

Distinctions The following individuals in our community were recently honored for their achievements:

Judge Louis R. Hanoian retired after serving more than 27 years on the San Diego Superior Court bench.

Judge Gale E. Kaneshiro retired from the San Diego Superior Court after a three-decade judicial career presiding over criminal and appellate cases.

Higgs Fletcher & Mack Partner Doug Kerner was elected to the Executive Committee of Friends of Balboa Park and will serve as Secretary.

William Smelko will be honored at Sacramento State University in June for his 50 years of service to the California Boys State program. He will also be inducted into the programâ&#x20AC;&#x2122;s Hall of Fame.

Passings San Diego recently lost a revered jurist, mentor, and community leader, Judge William B. Enright, who passed away on March 7. Among his many roles and distinctions, Judge Enright was a Senior U.S. District Judge for the Southern District of California and was SDCBA President in 1965. We invite you to remember Judge Enright through his Legends of the Bar video at www.sdcba.org/barlegends.

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15 SAN DIEGO LAWYER

March/April 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 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

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Green Bryant & French, LLP

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Pyle Sims Duncan & Stevenson APC

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Hilbert & Satterly, LLP

RJS Law

Bobbitt, Pinckard & Fields, APC

Hoffman & Forde

San Diego Unified Port District

Bonnie R. Moss & Associates

Hooper, Lundy & Bookman, PC

Sandler, Lasry, Laube, Byer & Valdez LLP

Brierton Jones & Jones, LLP

Horton, Oberrecht, Kirkpatrick & Martha, APC

Schwartz Semerdjian Cauley & Moot LLP

Brown Law Group

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Selman Breitman, LLP

Burke, Williams & Sorensen, LLP

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Johnson Fistel LLP

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JWB Family Law

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Kennedy & Souza, APC

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Devaney Pate Morris & Cameron, LLP

Koeller Nebeker Carlson & Haluck LLP

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District Attorney’s Office

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Stoel Rives LLP

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Stokes Wagner, ALC

Dunn DeSantis Walt & Kendrick, LLP

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PHOTO GALLERY LAW STUDENT WELCOME RECEPTION AND LEGAL COMMUNITY OPEN HOUSE The SDCBA kicked off the year by welcoming law students and legal organizations at our signature event.

Japanese American Bar Association

Iranian American Bar Association

Michaela Jester, Stephanie Sandler and Mary Allain for the SDCBA's New Lawyer Division

William Hannosh and Bradley Schuber for the Foothills Bar Association of San Diego County

Diversity Fellowship Program

SMACKED: UNVEILING DRUG ADDICTION IN THE LEGAL PROFESSION SDCBA member Rebecca Kanter interviewed Eileen Zimmerman about her book Smacked, which tells the story of losing her ex-husband, a former BigLaw firm partner, to opioids and other drugs and Zimmermanâ&#x20AC;&#x2122;s efforts to rebuild a life for her family after his death.

Eilene Zimmerman and Rebecca Kanter SAN DIEGO LAWYER

March/April 2020

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