San Diego Lawyer May/June 2020 by San Diego County Bar Association

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® MAY/JUN 2020

Women in the

Law

PLUS

Legal Ethics in the Age of Coronavirus Volunteering in Robes Practicing Law Productively at Home

JUDICATE WEST THE GOLD STANDARD in Private Dispute Resolution

Hon. Jan M. Adler, Ret.

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Richard A. Huver, Esq.

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• • • •

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CONTENTS COLUMNS 8

12 Page

PRESIDENT'S COLUMN Don’t Let a Covid-19 “Gender Tax” Set Women Back — A Call to Action for Leaders in the Law and Beyond by Johanna Schiavoni LAW SCHOOL COLUMN Law Review Makes Better Lawyers by Kelly Reis ETHICS Ethics in a World Upside Down: Pandemic Changes Everything by Edward McIntyre TECHNOLOGY Tech Tidbits by Bill Kammer

BUSINESS OF LAW Practicing Law Productively at Home by Anne Kammer

SAN DIEGO VOLUNTEER LAWYER PROGRAM by Jennifer Nelson

MEET YOUR BAR-ISTA Elizabeth Sorensen LRIS Senior Specialist

WHY I BELONG Get to know Mariza Lockhart

WHAT TO DO WHEN ... Your Client is Incompetent by Shannon O'Neill

DISTINCTIONS

FEATURES 18

32 Page

LEGAL ETHICS IN THE AGE OF CORONAVIRUS From the D.C. Bar by Saul Jay Singer VOLUNTEERING IN ROBES Serving as a Temporary Judge by Renée N.G. Stackhouse THE COST OF LIVING AS A WOMAN A Look Into the Pink and Tampon Taxes by Hailey Johnson

ATHLETES VS. TIME by Jeremy M. Evans

JOHN J. CLEARY by Chuck Sevilla

JUDGE WILLIAM B. ENRIGHT TRIBUTE by Hon. Larry Burns

THE CHAPTER by George W. Brewster Jr.

TUMULTUOUS TERMS: ALL THE WORLD'S A STAGE by George W. Brewster Jr.

100TH ANNIVERSARY OF THE 19TH AMENDMENT by Julie Houth

PIRATES LIVE ON IN THE FORM OF SOVEREIGN STATES by Lisel Ferguson

Women in the Law 21

WOMEN IN THE LAW by Lilys D. McCoy

FINDING MY VOICE AS A FEMALE LITIGATOR by Sarah Brite Evans

WORK/LIFE BALANCE OF LAWYER MOMS by Renée N.G. Stackhouse

Page

BETTY BOONE Steady as She Goes by George W. Brewster Jr.

THE WILL TO FIND A WAY My Unique Path to Law Practice by Rachel M. Allums THE RISE OF WOMEN IN POLITICS by Yahairah Aristy

SAN DIEGO LAWYER

May/June 2020

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Issue 3, May/June 2020 SAN DIEGO LAWYER MAGAZINE EDITORIAL BOARD Co-Editors Julie Houth

Edward McIntyre

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

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

SAN DIEGO COUNTY BAR ASSOCIATION Board of Directors President Johanna Schiavoni President-Elect Renée N.G. 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 Chair Stephanie Sandler

Issue no. 3. San Diego Lawyer™ (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is (619) 231-0781. The price of an annual subscription to members of the San Diego County Bar Association 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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May/June 2020

President’s Column by Johanna Schiavoni

DON’T LET A COVID-19 “GENDER TAX” SET WOMEN BACK — A CALL TO ACTION FOR LEADERS IN THE LAW AND BEYOND

ike many of you, my daily routine has been dramatically and potentially permanently changed by COVID-19. Working from home in the midst of a global pandemic is fraught with many unknowns about when, how, and for some, if we will return to working in an office. I’ve traded in my daily commute for virtual and telephonic meetings, and even more email. Children are not yet back to classroom learning, and most have had their typical summer activities canceled. Government guidance still encourages maximizing teleworking where possible. And, some law firms and other legal employers may determine that for them, remote work is the future.

are the breadwinners. “Women are still considered the primary parent, the lead parent, responsible for the dayto-day tasks, responsible for thinking, planning, and managing.” 2 That results in a lot of “invisible labor.”

Given these shifts, I’ve been considering whether there is an uneven impact — or “gender tax” — in how COVID-19 has shaped our new reality. And, what does this mean for women lawyers in the quest for more equal footing in the legal profession?

I challenge you to consider two key questions:

As I travel from virtual meeting to virtual meeting, I see and hear the fatigue setting in for many of my colleagues, clients, and friends. But where I see it most is in women, especially working moms. Though all of us have been sheltering in place, the stark reality remains that the vast majority of caretaking for children and others, coupled with day-today household responsibilities, has historically fallen and continues to fall on women. Emerging research highlights that there remains a “grotesque” imbalance in sharing childcare and home responsibilities.1 Women do twice the housework and childcare — even when working full-time and even when they 8

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To make meaningful shifts in culture, change must occur rapidly.3 That may seem counterintuitive — but if it takes a long time to shift culture and if the work is done only incrementally, this signals a lack of commitment and priority. It will feel insincere and is bound to fail. To create an enduring path toward greater equities for women in the workplace and in the practice of law, we must embrace this time of rapid change.

• Can we, as a profession, use COVID-19 as a catalyst to rethink long-standing practices that perpetuate significant gender inequality in the profession? • What can you do to raise your own consciousness to resist this implicit, and sometimes even explicit, gender bias? Here are some concrete ideas and strategies to consider in tackling these issues.

Incorporate flexibility, including continuing teleworking, into employees’ work regardless of gender Economists already have started exploring how a pandemic of this magnitude will affect society, including resulting gender disparities. A recent study reveals that even where men and women work in professions

| May/June 2020

where telecommuting opportunity is similar, prior to COVID-19, women more frequently opted for telework.4 When remote work first came into vogue, it was stigmatized as an accommodation. We must disavow that notion. Instead, the pandemic forced employers to go “remote” almost overnight, and demonstrated how we can reshape work to give employees control, flexibility, and responsibility. But, expectations must not continue to bake in old gender norms about who “needs” the flexibility. Treat employees evenly on this ground, and don’t make gender-based assumptions.

Take care not to perpetuate gender stereotypes because of how you treat men Studies show that men anticipate needing time off from work to give care at the same levels women do, but they don’t take it. This is “because our policies and our workplace cultures don’t support that.” 5 So, to effectuate change in your workplace, leaders must create the policies, cultures, and shift in attitudes to enable more equitable treatment. Several of San Diego’s chambers of commerce have been focused on childcare issues in recent years as a policy issue vital to leveling gender and socioeconomic gaps in our local economy, and I applaud those efforts. To make meaningful change in the legal profession, it is imperative that as a leader, your organization thinks, plans, and develops strategies around a return to work that does not exacerbate gender imbalances on this front.

Resist the urge to hoard credit, billable work, or scarce opportunities to build experience Having lived through the 2008-09 economic downturn while a senior associate at a BigLaw firm, which conducted a 10% layoff of the most junior associates, I then witnessed the impacts on the junior associates who “survived” the layoffs. They were demoralized because work was hoarded at the top, and young attorneys who were smart, driven, and ambitious had little opportunity to grow and learn. Those most disaffected were women and attorneys of color, who either were driven out or left large law firms because of the lack of opportunities. The challenges of this current environment will be different, yet present the same potential for those at the top to keep all the work and visible responsibilities for themselves. If you are in a position to affect the assignments of other attorneys, share the work. Make conscious decisions about who briefs and argues the motion or appeal, or who handles an important transaction or investigation. And when we get back into the courtroom, be even more conscious to ensure broad access and opportunity to first chair experience. And, if you are truly committed to the advancement of women attorneys, bring women into the client development process earlier and in

1. Brigid Schulte, “Pandemic Makes Evident ‘Grotesque' Gender Equality in Household Work,” interview on National Public Radio, Fresh Air with Terry Gross, May 21, 2020, https://www.npr. org/2020/05/21/860091230/pandemicmakes-evident-grotesque-genderinequality-in-household-work?fbclid=IwAR25 AstLrKWE2eIa443qLLjF4ARwVwXV3I9C5Xlsb oZiqY5IoRF17M4sh04. 2. Schulte, interview on May 21, 2020. 3. Frances Frei, “Great Leaders Use Tough Love to Improve Performance,” interview on

a meaningful way. Be the leader your clients want.

Take a hard look at how any reductions are handled If reductions in staff, hours, pay, or promotion tracks occur, closely examine your approach and factor nonCOVID-19 times into your evaluation of performance, progress, and merit. Also, as you dole out “credit,” be conscious of time that was devoted to the invisible labor of your office. Who set up the remote working situation? Who is planning your office reopening? Who has been responsible for liaising with your staff? Often, oversight of this type of non-billable work is tasked to women lawyers, and then there are fewer hours in the day for client work. Though these are not billable activities, they should be considered and factored in as an essential contribution to your business.

Look to women to lead — the evidence shows you’ll be better for it This also is a time to step back and elevate female leaders. In this crisis, female-led countries have had better responses and better outcomes in addressing the pandemic.6 Companies with more women in leadership also are more profitable along a number of financial metrics, though the key is to have women in multiple leadership positions throughout companies — not just at the top.7

Harvard Business Review IdeaCast, June 2, 2020, https://hbr.org/podcast/2020/06/ great-leaders-use-tough-love-to-improveperformance. 4. Titan Alon, Matthias Doepke, Jane OlmsteadRumsey, Michele Tertilt, “The Impact of COVID-19 on Gender Equality: March 2020, p. 37, http://faculty.wcas.northwestern. edu/~mdo738/research/COVID19_Gender_ March_2020.pdf. 5. Schulte, interview on May 21, 2020. 6. Avivah Wittenberg-Cox, “Whaat Do Countries With The Best Coronavirus Responses Have

Over the past few months, necessity has required us to become more adaptable. As I wrote in my March/ April President’s Column, a key factor in leading through crisis is clear, direct, transparent, and thoughtful communication. A vital component is explaining the why. Also key are being decisive but adaptable, and showing authentic empathy and compassion. Women leaders often bring these talents to the table in their everyday lives — as we navigate a legal world and broader world still largely dominated by men. Leaders in law would be wise to take note and elevate more women to powerful decision-making and leadership positions. The steady hands running successful responses to crisis and to our new reality can and should reflect our community. Now is the time to effect real change. I call on leaders in the law and beyond to reexamine your practices with these key issues in mind and to resist allowing a COVID-19 gender tax to settle into our new normal.

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.

In Common? Women Leaders,” Forbes, April 13, 2020, https://www.forbes.com/sites/ avivahwittenbergcox/2020/04/13/whatdo-countries-with-the-best-coronavirusreponses-have-in-common-womenleaders/#19fcc6e3dec4. 7. Melanie Curtin, “Science: Companies With Women in Top Management Are Much More Profitable,” May 31, 2017, Inc.com, https://www.inc.com/melanie-curtin/ science-companies-with-women-in-topmanagement-are-significantly-moreprofitable.html.

SAN DIEGO LAWYER

May/June 2020

LAW SCHOOL COLUMN by Kelly Reis

LAW REVIEW MAKES BETTER LAWYERS

aw review membership is the most valuable legal training for law students today, and law schools need to make more concerted efforts to support their flagship journals. Law school extracurriculars have varying levels of success developing the skills necessary for students to become practicing attorneys. Although a few students will spend their career arguing before a jury, the reality for most attorneys is that arguments are made in writing. Judges rarely change their minds after hearing a strong orator in the courtroom if the argument is not bolstered by a persuasive brief. New attorneys seeking to prove their value in today’s legal market must be meticulous editors and strong writers — two skills best cultivated through law review membership. Law review membership develops a student’s editing skills in ways that few other experiences can match. Members of San Diego Law Review, for example, ensure an article’s factual integrity during the publication process by combing through each sentence and its proffered citation to confirm that the author’s statement is supported by the source. After confirming the article’s substantive accuracy, members also verify technical accuracy by adhering to the proper Bluebook format. Requiring this attention to detail trains law students to be critical and thorough when they go into practice. Even the editing process prepares law students for the conditions they will work under as an attorney. Much as law firms require

collaboration under time pressure, law review is a team endeavor where students work together to edit articles under tight deadlines. Law review membership also sharpens a student’s writing skills. Building on the foundation of their first-year courses, members are challenged to write a comment utilizing effective and concise legal arguments. To develop these skills, law review members receive individualized writing advice and guidance from board members. Regardless of an attorney’s practice area, communicating effectively and precisely in writing is essential. Something as simple as drafting an email to answer a partner’s question requires strong writing skills. Law review trains students to accurately and succinctly communicate dense legal information in an understandable manner — something students will do daily as attorneys. A well-run law review serves as a classroom, a publishing house, and a mentorship program for students. Journals foster leadership, demand timeliness, and require attention to detail. Recognizing the unique and irreplaceable function of law reviews, law schools should do everything in their power to ensure journals have the necessary resources to provide this unmatched opportunity to more students.

Kelly Reis (kreis@sandiego.edu) is the Volume 57 Editor-in-Chief of San Diego Law Review and a 3L at the University of San Diego School of Law.

SAN DIEGO LAWYER

May/June 2020

ETHICS by Edward McIntyre

ETHICS IN A WORLD UPSIDE DOWN Pandemic Changes Everything Macbeth watched Duncan and Sara’s images appear on his laptop. “Good morning. Both still well?” Nods. Duncan asked: “And you, uncle?”

“That’d be wonderful.” “You might consider having your class revisit Rule 1.4. Especially, 1.4(a)(2). With everything disrupted, it may take on new meaning.” Sara interrupted. “Dr. Marshall, Rule

“Fine. Rather be in the office with both of you. But — we adapt.” In the background, a dog barks. “Fiona?”

1.4 deals with client communication. Rule 1.4(a)(2) has a lawyer consult the client about the means to accomplish the client’s objectives.” “Thanks, Sara. Please, it’s Dennis.”

“Indeed.” Ping. Another face. “Dr. Dennis Marshall.” “Good morning, Dennis. Meet Sara and Duncan. I invited Dennis to attend our call. We serve on a university ethics committee together. Academics, military, business leaders, doctors, lawyers. He’s interested in what we do.” “I’m pleased to be here.” Macbeth took the lead, “Sara, you’re teaching an ethics class tomorrow?” “At the law school. Thought I’d scrap what I’ve prepared. Focus on ethics in the current environment.” “Great idea. Everyone’s life has been turned on its head. Looking for ideas?”

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“I suggested it because the pandemic has changed so much. For so many. A client’s objectives last January or February are likely different now. Or could be.” Sara followed up, “So, we’re saying a lawyer should check with each client. Now. Again. Assess the client’s goals. See if they’ve changed.” “Precisely. Also, even if objectives remain generally the same, communication — competence as well — demand an assessment of the means the lawyer now has to accomplish those objectives. A lot has changed.” Duncan followed up, “With litigation at a standstill, that’s certainly one set of means [air quotes] that have changed. Likely others.”

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Macbeth nodded. “Good observation. I also think we have to go further. Even though California didn’t adopt ABA Model Rule 1.14 —” Sara interjected, “An ethics rule, Dennis, that addressed a client with diminished capacity.” “Thanks.” “Sorry, Dennis. Professional jargon. We don’t have a Rule 1.14. But you might have your class consider whether Rule 1.4 requires a lawyer — especially given the pandemic — to discuss health with their clients. Do they have an estate plan with a current medical directive? Always a touchy topic. Discuss their wishes if they become suddenly ill. Even their mental state.” Sara spoke. “Excellent. Law students think they’re invincible. Important for them to remember: not all clients are 20-somethings. Clients have health issues — the pandemic highlighted that.” “Two other topics you might consider. Confidentiality and competence. The pandemic forced all of us to use a lot of different ways to communicate. We’re on Zoom right now. Technology has benefits, but also risks.”

Sara smiled. “We’ve all seen the press reports of teleconferencing problems. Even porn-bombing calls and conferences.” “That’s why I circulated an encrypted password to log in. I’m sure your students are techsavvy. More than most lawyers. But we can’t stress our confidentiality obligations enough. Especially as we use temporary, or ad hoc, communication platforms. Ones that may not be as secure as what we’d use at the office.” “Is that the tie-in to competence?” “Spot on. We didn’t adopt Comment 8 to ABA Model Rule 1.1. Rule 1.1’s our competence rule, Dennis. But there’s a proposed amendment to our Rule 1.1. It would add a comment very similar to the ABA. Basically, make some level of technical competence an ethical duty.” Sara explained, “The comment, Dennis, says that the duty of competence — the duties in the rule — include keeping abreast of, among other things, the benefits and risks associated with relevant technology. A lot of California ethics opinions — back as early as 2010 — have made the point. If the amendment’s adopted, this comment to the ethics rule will reinforce it.” Macbeth continued, “It’s the risks inherent in technology that pose the threat to our confidentiality obligations. Especially lawyers not understanding them.”

Cartoon by George W. Brewster Jr.

Dr. Marshall spoke, “Interesting. We face the same dilemma. The pandemic forced many of us to do telemedicine for reasons other than emergency care. We also have patient privacy and confidentiality obligations. We have to be just as cautious. One problem we have is educating patients. Not just how to use telemedicine platforms, but also how to do it so that the communication remains secure. Almost like the reply-all problem.” “Excellent point. Sara, you might want to have your class consider it. They’re tech-savvy. Their clients? Not always so.” “Thanks, Dennis. I’ll try to get them thinking about their obligations to

ensure their clients are reasonably protected. At least using secure means to communicate.” “This gives you enough for your class, Sara?” “It’s wonderful. Thank you all.” Dr. Marshall concluded, “Thanks for inviting me. Best dinner break I’ve had. Now back to the ER.” They signed off. Macbeth’s screen went dark.

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

SAN DIEGO LAWYER

May/June 2020

TECHNOLOGY by Bill Kammer

TECH TIDBITS Zoom Bombing By now, most of us have either initiated or attended a Zoom meeting or conference. Our communityâ&#x20AC;&#x2122;s level of expertise probably varies from novice to sophisticated, but all lawyers have heard of security issues with the Zoom application. Zoom Bombing refers to unauthorized visitors entering conferences or meetings, often because the organizer has broadcast or reused a meeting ID. Organizers can easily eliminate that concern by not reusing meeting IDs, adding a password to any meeting invitation, and locking the meeting room when all invitees have entered the meeting. Lawyers naturally have privacy and confidentiality concerns. Zoom has promptly repaired the reported security issues and clearly remains the application of choice for most web meetings and conferences.

Reed Smithâ&#x20AC;&#x2122;s New App This national law firm has developed an electronic discovery application you may find useful. The free E-Discovery App is available for download in both the Apple App Store and Google Play. With the app, you have access

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to a glossary, selected rules, sample forms, a GDPR checklist, a vendor directory, and other reference materials.

iPhone Location Data You may have recently seen messages on your iPhone about apps wanting to use your location data. These messages result from new versions of the operating system that have provided privacy improvements. Even if you once granted an application permission to mine your location data, these new reminders provoke a suggestion that you only permit an app to use location data when using the application, assuming the app needs to know where you are to provide relevant information. Past collection and mining of location data likely did not benefit consumers. If so, there is really no reason to tolerate that. A favorite example of unnecessarily broad permission requests was the flashlight apps that wanted location data and access to your contacts. Too often, we clicked on those permission requests. Now, because of Appleâ&#x20AC;&#x2122;s privacy changes via its operating system, marketers are collecting 68% less background location data.

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Deepfakes Most lawyers have experienced altered evidence such as documents and photographs and have developed methods to evaluate their authenticity. Now, they must consider no longer taking audio or video evidence at face value. This results from the advent of deepfake technology. Increased computer power and audio and video forging software have developed to where a plausible but fake recording is a simple creation. The forging technology uses the power of machine learning to analyze old footage of past speeches or presentations to then produce a fake video with words the speaker never used. You may have seen audio and video examples in social media, but now these are just something else for trial lawyers to worry about. Recent reports noted the appearance of deepfakes in family law proceedings. A prime example was the proffer of a forged audio recording of a party threatening another party. The intonations, word choices, and accents were those of the supposed actor, but the recording was a complete fake.

Passwords and Password Managers

Law Office Security

This topic will never go away because it deserves constant attention. The power of modern computers has reduced attacks on simple and short passwords to child’s play. Length and variety remain the best defenses to password attacks. Remember also that a passphrase is just as effective as a password and usually much easier to remember. You can judge your password’s strength and demonstrate the power of small changes at a site such as GRC’s www.grc.com/haystack. If you want to illustrate the methods to enhance password security, visit Dialogic’s website at dialogictelecom.com/2019/04/ passwords-dont-keep-all-youreggs-in-one-basket.

Law offices remain soft targets for bad actors seeking confidential information or ransom sums. Hacks of law firms are frequently featured in headlines, and some hacked law firms have been sued for malpractice by clients whose confidential information was disclosed. Human error remains the predominant cause, and phishing is the most common weapon. The only defense is constant training and testing. That testing might also include “pen testing,” white hat hackers attempting to penetrate systems and networks.

IoT Hacks The Internet of Things (IoT) consists of many devices and products in offices and homes connected, often

wirelessly, to and over the internet. Even with installed security, most are sold with generic passwords that require immediate change and enhancement. We’ve all heard of hacked monitors, baby cams, and doorbells, but the threats include everyday commodities such as Philips Hue Smart Bulbs. Devices usually have firmware that can and should be updated as vulnerabilities provoke manufacturers to make security changes. But the simple reminder provided by the backdoor vulnerability of a lightbulb should alert us to weigh the utility of these IoT devices against the security risk they may present.

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

Kathryn Karcher has the winning perspective for your client’s appeal. Hire her, before the other side does.

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Native American artwork from Ted Griswold's collection

BUSINESS OF LAW by Anne Kammer

PRACTICING LAW PRODUCTIVELY AT HOME A Conversation with SDCBA Technology and Practice Management Advisor Adriana Linares

am a career government employee. What, one might wonder, do I know about the “business of law”? Admittedly, not much, but I do occasionally spend time at a law firm during meetings of the William B. Enright Chapter of the American Inns of Court. Those meetings are graciously hosted in a well-appointed conference room at the offices of Robbins Geller Rudman & Dowd LLP. It was during one of those meetings that I had the opportunity to hear Adriana Linares speak (back in the fall, before the onset of a global pandemic brought gatherings of more than 10 people to an unceremonious halt; more on that in a moment). Adriana is the San Diego County Bar Association’s Technology and Practice Management Advisor. She describes herself as a “human member benefit,” providing her technological expertise and unique business acumen to members at no charge. Adriana is not an attorney, and she does not advise members on e-discovery or financial issues. Her tradecraft includes marketing technology and advising members about practical matters, such as using professional software suites and cloud technology. At the aforementioned meeting, Adriana focused her comments on the topic at hand: how to get and keep clients. While the subject was not relevant to my line of work, Adriana captivated my attention with her advice on how attorneys can harness technology to build a successful practice. It turns out that relevance becomes tangential when one’s interest is piqued.

Fast-forward several months and Californians were suddenly living under a statewide stay-athome order due to the COVID-19 outbreak. Practically overnight, legal professionals throughout California had to work from home. Teleworking is a benefit available to many federal employees, and I had occasionally worked remotely. The nature of my profession lends itself well to doing so. But what about attorneys in the private sector? How do attorneys meet with clients when they have to stay home? How do they keep up with billing requirements? Remember what

Adriana Linares

I said about relevance and tangents — these issues might not impact me personally, but I felt compelled to find answers. Luckily, I knew just the person to ask. Amid the chaos, Adriana graciously set aside time to answer my questions and discuss her ongoing efforts to assist members with technology during an unprecedented and stressful time. First and foremost, Adriana reported being “slammed” — not surprisingly. There is nothing like teleworking during a pandemic to make folks appreciate free access to a technology guru. I asked Adriana what question members were asking

her most frequently. She reported attorneys were concerned about their staff members: how to provide their staff with secure, remote access, and how to ensure continued productivity. Adriana’s advice: conduct regularlyscheduled meetings. Adriana suggested that attorneys need to set sensible goals for their staff, taking into consideration the difficulties of working remotely for some people. With respect to clients, Adriana emphasized that attorneys need more than one method of communication at their disposal. Meeting with clients remotely is imminently doable and has advantages, such as convenience. Finally, I asked Adriana to give her number one tip for practicing successfully from home. According to Adriana, attorneys should set realistic billable goals for themselves and their staff. If eight hours is not realistic, aim for four or five. Adriana mused that ultimately the profession might find itself turning a corner with respect to teleworking, taking advantage of its availability and providing it as a benefit to staff members going forward. And if that happens, Adriana will be ready to assist. Editor's Note: Members can access Adriana by visiting sdcbalawandtech.org/about-the-mto and view her webinars by visiting www,sdcba.org/helpful-webinars

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

SAN DIEGO LAWYER

May/June 2020

LEGAL ETHICS IN THE AGE OF THE CORONAVIRUS By Saul Jay Singer

Goodbye to Rosie, the Queen of Corona, see you, me and Julio down by the schoolyard — Paul Simon (1972)

ith the spread of the coronavirus pandemic, we would all like to say goodbye to “the Queen of Corona,” but COVID-19 is likely to be with us for some time. By now, everyone should be familiar with the basic protective steps defined by health authorities. But the spread of the coronavirus has caused massive disruption and created a potential minefield for D.C. lawyers, who retain all their ethical duties under the Rules of Professional Conduct. Though there are important issues that may arise in the face of the coronavirus threat — or any other threat to life and health, for that matter — the fundamental “prime directive” remains: thou shalt protect thy client. Your ethical obligations do not change, regardless of whether you are ill, your client is sick, or the courthouse is closed. Below are some basic guidelines to assist lawyers in complying with their ethical duties during this pandemic and beyond.

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Lawyer Becomes Ill In the face of increased risk of serious incapacitating illness or worse, lawyers must have a ready succession plan for other lawyers to assume responsibility for legal representations and, at a minimum, a plan for promptly communicating with clients and for taking necessary protective action. In larger firms, other firm lawyers may be able to step in to take over a representation on short notice, but even such firms should develop a contingency plan to address how client matters will be handled in the event of mass lawyer incapacity or unavailability. Assuring the continuity of representation can be more difficult for solo practitioners, where there is often no other lawyer to step in to handle cases in the event of the solo’s illness or death. As such, Comment [5] to Rule 1.3 provides that each sole practitioner should prepare a plan, in conformity with applicable rules, that designates another competent lawyer to review client files, notify each client that the lawyer is no longer engaged in the practice of law, and determine whether there is a need for immediate protective action. Solos should consider partnering with each other in reciprocal agreements to advise

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clients and courts when the lawyer has become incapacitated or is deceased.

Client Becomes Ill One important result of COVID-19 is a reduction in personal contact between lawyer and client and, as such, potentially less lawyer awareness of the client’s health status. In this environment, attorneys may wish to ask clients to disclose developing health issues to them because a client’s illness may necessitate a continuation of the case, a waiver of appearance, or a request for remote attendance. Rule 1.4 (Communication) requires that lawyers initiate and maintain the consultative and decisionmaking process even when clients fail to do so. When a seriously ill client develops a lack of capacity to proceed, Rule 1.14 (Client with Diminished Capacity) provides that the lawyer “may take reasonably necessary protective action including, in appropriate cases, seeking the appointment of a surrogate decisionmaker.” However, the much-preferred option is for the lawyer to determine now how the client would want the representation to be handled in the event of incapacity.

Working Remotely: Confidentiality Issue Pursuant to D.C. Rule 1.6 (Confidentiality of Information), the lawyer’s duty to maintain the client’s confidences and secrets is extremely broad. As such, lawyers working remotely or from other irregular or nontraditional sites must carefully consider the security and confidentiality of their policies, procedures, and systems. Some obvious basics include protecting computer systems and physical files and ensuring that telephone and other conversations and communications remain privileged.

Included in the mandate of Rule 1.1 (Competence) is a lawyer’s duty to be sufficiently technologically proficient to protect client confidentiality. If a lawyer working remotely lacks such knowledge, then he or she should retain a competent technological expert to advise regarding the lawyer’s security systems.

Diligence in a Constantly Changing Situation Lawyers must be diligent in monitoring the ever-evolving COVID-19 situation, including but not limited to court closings and orders

"... lawyers working remotely or from other irregular or nontraditional sites must carefully consider the security and confidentiality of their policies, procedures, and systems."

regarding filings, appearances, and statute of limitations tolling, and adapt as necessary to conform with their ethical obligations under the Rules of Professional Conduct. Coronavirus may present more than health issues, including restrictions, delays, increased costs in international transactions, labor and employment issues, client solvency issues, and risks to entire industries. Lawyers must be prepared to address all these issues, and more. Finally, the old dictum “what goes around, comes around” has ironically never been more relevant, and lawyers should exercise ultimate civility and good will when dealing with opposing counsel. This piece was originally published by the District of Columbia Bar.

Saul Jay Singer (ssinger@dcbar.org) is Senior Legal Ethics Counsel for the District of Columbia Bar.

Editorial Note By Edward McIntyre This article from Saul Jay Singer and the D.C. Bar is both timely and an excellent reminder, in spite of COVID-19, of our primary ethical duty: protect our clients. There are two observations for California lawyers. First, our Rule 1.1 does not yet include the duty to be technologically proficient; a proposed amendment to Rule 1.1 to that effect is now pending. Other California authorities, however, have continually stressed that in

today’s world, competence requires a degree of technological competence (see, e.g., State Bar Formal Opn. 2010-179). This is certainly the case where client confidentiality is concerned given our obligations under Business and Professions Code section 6068, subdivision (e)(1) and Rule 1.6.

of a surrogate decision-maker is not a rule-based ethical option for California lawyers. The article’s suggestion that a lawyer should determine from the client how the client wants the representation to continue in the event of incapacity is, however, excellent advice.

Next, California did not adopt ABA Model Rule 1.14 (Client with

Finally, the SDCBA Ethics Hotline (619-231-0781 x 4145) remains open, staffed by a member of the

Diminished Capacity), so, for example, seeking the appointment

SDCBA Legal Ethics Committee who is there to help you.

VOLUNTEERING IN ROBES SERVING AS A TEMPORARY JUDGE By Renée N.G. Stackhouse

an Diego Superior Court is the second largest trial court system in the state and the third largest in the nation. The number of cases that flow through the courts is staggering, but with the recent closure of the courts due to COVID-19, that number may be close to overwhelming for the foreseeable future. Now, more than ever, the Court could use your help to ensure continued access to justice for the people of San Diego County. Lawyers in good standing for at least 10 years who meet the eligibility and training requirements can join the Court as temporary judges or settlement attorneys. Temporary judges or “judge pro tems” are lawyers who hear cases and decide cases. No, you can’t put it on your website. No, you don’t get paid.

You can find all the information online at the Court’s website (sdcourt.ca.gov) on how to apply and the eligibility and requirements (“Temporary Judge Program”). There is one mandatory in-person training required. To find out when it will be offered next, email TempJudgeAdmin@sdcourt.ca.gov. Serving your community as a temporary judge also has the benefit of increasing the diversity seen on the bench, as the Court encourages all eligible diverse applicants to apply. It is also an excellent opportunity to determine if a career on the bench

You do, however, gain valuable experience adjudicating claims, you help people to get their day in court, and you help the Court make the best use of its resources. You do get to pick which court or courts closest to you that you want to work in. You do get to pick what matters you will hear; temporary judges and settlement attorneys hear cases in traffic court, small claims court, family settlement, family support division, and probate throughout the courthouses in San Diego. You do get to pick the day(s) you volunteer so it is always convenient for you.

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may be your calling before running for a seat or seeking appointment (or even while waiting to hear on an appointment). As we come together as a community to rebuild and regroup post-COVID-19, let's make sure to support our courts and to keep justice accessible to America’s Finest City.

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

Women in the Law

Women in the Law By Lilys D. McCoy and George W. Brewster Jr.

rogress is rarely linear. It starts, stops, races ahead, suffers mystifying reversals. Sometimes there are grand gestures, moments where one word, an act, a decision delivers a dramatic shift. Progress of women in the legal profession has followed such a trajectory — nationally and locally. The founders and early members of Lawyers Club of San Diego galvanized moments, big and small, that advanced the status of women in the law. Two anecdotes reveal the grit and resilience that their efforts required. In 1999, the SDCBA published 100 Years of Justice in honor of its centennial. Included was a piece by attorney Judy Copeland titled “Why I Hated the Bar.” She recounted her first attendance at the annual Bar Dinner where skits employed “liberal use of secretaries dressed up as Playboy bunnies.” Ms. Copeland was appalled, but undaunted. She arranged for herself and several other women to be on the Bar Dinner Committee. They innocuously volunteered to provide the bunnies for the next dinner. “Imagine the group’s horror,” she wrote, “when the following year ... they got an anonymous woman dressed head to toe in a rabbit costume!” Former Congresswoman Lynn Schenk recalled, as a young lawyer, she and other women tried to join various SDCBA committees, but were rejected by the Bar president. “He said there was already ‘one girl’ on the Bar Board of Directors ... wasn’t that enough?!”

That, she said in a 2007 interview, “was really the impetus for us to start Lawyers Club; they didn’t even want our volunteer time.” Lawyers Club turns 50 in 2022. Those vignettes represent important moments that, fortunately, were followed by significant shifts. In 1985, Deputy District Attorney (now Judge) Melinda Lasater became the first female SDCBA president. When asked what being the first woman president meant to her, Judge Lasater replied: “Naturally, I considered that finally having a woman serve in that role was a major step forward for [the SDCBA], our legal profession, women lawyers, and public lawyers. I never thought it was about me, though ... There were other extremely well-qualified women who had run in the past and they paved the way as we collectively learned how to successfully elect a woman as President of the SDCBA." Six years after Judge Lasater’s term as President, there was another shift: three courts in San Diego were led by women — the Superior Court by Justice Judith McConnell, the Municipal Court by Judge Patricia Cowett, and the Southern District of California by Judge Judith Keep. Recalling Senator Hillary Clinton’s famous line, “Women’s rights are human rights,” it is fitting to acknowledge that equality in the legal profession has never been a singular pursuit by a lone group. It has been — indeed must always be — a joint effort by all who value inclusion.

Lawyers Club was one of the first of many diverse bar associations founded in San Diego. These organizations inspired and trained leaders, many of them women, who have in turn inspired the San Diego legal community to place the values of diversity and inclusion at the forefront. The fruit of those efforts can be seen in a diverse Bar Board, a strong Committee on Diversity and Inclusion, and slow but steady gains on the Bench and in public and private law firms. While the arc toward equality is non-linear, we can celebrate that today, the San Diego Superior Court is led by the third woman to be Presiding Judge, Judge Lorna Alksne; the Fourth District Court of Appeals is led by Justice Judith McConnell; the United States Bankruptcy Court for the Southern District of California is led by Judge Margaret Mann; the Chief Magistrate Judge for the Southern District is Judge Barbara Major; and the most senior of the active Ninth Circuit judges in San Diego is Judge M. Margaret McKeown. To that illustrious list we can add D.A. Summer Stephan, Federal Defender Kathy Nester, and City Attorney Mara Elliott. The authors wish to thank Lizzette Herrera Castellanos for important contributions to this piece.

Lilys D. McCoy is a Deputy City Attorney and past President of the SDCBA.

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Women in the Law

Finding My Voice as a Female Litigator By Sarah Brite Evans

bout 10 years ago, someone asked my then-

earliest role models for me on this were both male —

toddler son if he wanted to be a lawyer when

Mike Kirby and Dave Noonan, my first bosses.

he grew up. “No,” I remember him defiantly

They could not have more different styles in every

saying. “That’s a girl job!” Obviously, he and I have had

aspect of their practice, but for several years, I had a

a series of discussions about gender roles since, but

front-row seat, watching each be successful in his own

at this mid-point in my career, I recognize that finding

way. This gave me great confidence that if I found my

my voice in this “girl job” has been an ongoing project

own voice and style, I would also find success.

involving many different people. So, I started to explore, test, and experiment with Finding my voice as a female litigator was made

what I could do to become the litigator that works

easier by the work of many others before I started.

best for me. In San Diego, there are many wonderful

The talented and strong women litigators who came

female litigators, too many to list here, who have been

before me had to face oppressive stereotypes and

amazing role models for me. Not only do I admire

biases, and so many persevered. I have never felt that

them, but when given the chance to watch them in

my gender alone held me back from or dictated any

action, I did. I worked to analyze their successful traits

of my professional goals. I thank and celebrate those

and habits and identify what strategies they utilized

who overcame hurdles and helped knock them down

in different situations. Often, I focused on how they

for me, which made finding my voice much easier.

exuded confidence in court or a conference room and captivated and persuaded listeners. I learned a lot by

Since law school, mentors and role models have

watching them work their magic. And I scavenged, er,

shown me how to become myself and become

I mean, I tried to adopt many aspects that I saw these

comfortable with my own voice. Ironically, two of the

women model for me.

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Women in the Law Importantly, one way that I was able to find my voice as a litigator was by using it. My then-bosses and now partners (and in particular Ross Schwartz and Dick Semerdjian) gave me opportunities early on to handle matters myself — develop case strategy, work closely with our clients, take and defend depositions, and handle motions, mediations, and the occasional trial solo. Because I took advantage of these opportunities, I was able to test out some of those traits and habits I saw in my role models to find the voice that works for me. It forced me to come up with a strategy for dealing with difficult or unique issues and situations rather than asking a more senior attorney for advice about how to deal with those challenges; this has been an important way for me to develop my voice. I certainly owe a debt of gratitude to patient colleagues who

“My path to finding my voice would not have been possible without the brave efforts of those before me, amazing examples from role models in our community, invaluable professional development opportunities provided by my firm, and cheerleading from friends.”

have responded “yes” when I’ve asked, “Do you have five minutes so I can run something by you?” I have appreciated their frankness and criticism on a number of my initial strategies, as it has steered me to becoming a better litigator, making better decisions and developing more confidence in each, too. By initially strategizing myself then factoring in wise insight from others when necessary, I find that I speak with a confident voice. Moreover, having friends with whom to discuss professional and personal life has been invaluable to helping me find my voice as a female professional in general. Navigating firm life, business development, community involvement, and incorporating parenthood into this career are shared struggles for many of us. Having close friends with whom I can discuss the struggles and also the successes continues to help me find my voice in each new phase of life. My path to finding my voice would not have been possible without the brave efforts of those before me, amazing examples from role models in our community,

They answer phones, welcome clients, file and serve pleadings, and so much more to keep the office running. Court reporters and court staff are also predominantly female, and they keep the engines of our litigation process humming. My voice would be a lot quieter without their assistance. My voice would also be much quieter without support at home. I could not stay late when a deposition or mediation runs long or make it to Los Angeles in time for an early morning court hearing without our wonderful nanny. Most child care is provided by women — either a partner who stays at home or child care providers and schools — and I am free to be a litigator because I have confidence that my kids are taken care of at home and school. So, when we celebrate women, I celebrate those who came before, those who I have learned from, those who gave me opportunities to use my voice, and those who make it easier every day for me to use it in this so-called “girl job.”

invaluable professional development opportunities provided by my firm, and cheerleading from friends. I must also give credit to the women behind the scenes who make it possible for me to have a voice as a

Sarah Brite Evans (sarah@sscmlegal.com) is an employment law partner at Schwartz Semerdjian.

litigator. Most office support staff members are female.

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May/June 2020

Women in the Law

Work/Life Balance of Lawyer Moms By Renée N.G. Stackhouse

et’s get this out of the way early: There is no such thing as work/life balance. Striving for that balance kills working mothers who think that they must be the perfect mom, perfect lawyer, perfect significant other, perfect businessperson all day, every day. It’s not sustainable. Some days your lawyering will be perfect. And maybe that day your kiddo watched just a tad too much Kindle Fire. Some days you will be the perfect mom and build memories with your kiddo that last a lifetime. That usually means you put your phone down and didn’t answer calls or emails. Maybe you have a day where you feel like you were super mom and super lawyer … but let’s be honest, that’s not going to be most days. Here’s the thing that new lawyer moms need to hear: That’s OK. Here are some tips for lawyer moms who are just starting the journey, from someone three years in:

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“MOM GUILT” IS REAL. ACKNOWLEDGE IT AND MOVE ON. “Mom guilt” may be the most crippling part of being a working mom and especially a lawyer mom, given our Type-A personalities. Whether you get to enjoy months with your kiddo before returning to work or have to go back to work right away, leaving your child with a nanny, babysitter, spouse, or day care is incredibly difficult. Then there’s the guilt when you work late and miss a bedtime. Or miss a first step. Or wanted to take the kiddo to the zoo but have a deadline to meet instead. Whenever we’re not as perfect as we want to be, “mom guilt” rears its ugly head. There’s no real way to stop it, so acknowledge it. Then acknowledge that, whatever you are doing, you are doing your best. And that is good enough.

Women in the Law THERE IS POWER IN NUMBERS. Yes, I know. You can do it all, including representing Fortune 500 companies, settling multimillion-dollar lawsuits, and taking care of everyone and everything. But you will be at your best if you let your tribe support you. Whether that’s family, your fellow lawyer mothers (start a text string with your girlfriends who get you for the occasional vent and empowerment), online communities (check out LawMamas or San Diego Lawyer Moms on Facebook), bar organizations (SDCBA, Lawyers Club, California Women Lawyers), or mental health professionals — you deserve to have support. You might be surprised how many people are waiting for the opportunity to help you.

DEMAND HELP. There are several great articles, books,1 and studies on women’s aversion to asking for help, even when they need it or deserve it. For a lawyer mom, that can be talking to a significant other and making sure that they are on board with handling half the parental duties. That can mean coming up with a community family calendar to keep everyone on track. That can mean asking your community for their outgrown clothes and toys, so you don’t have to buy new. That can mean telling the court that the time proposed for the hearing or trial start doesn’t work because you need to drop off your kiddo or that a 15-minute break isn’t long enough to pump breast milk and that you need an accommodation. That can mean telling your firm that you need less hours. This doesn’t make you needy. It lets people know what you need. There’s a difference.

YOU CAN’T POUR FROM AN EMPTY CUP. In other words, put your oxygen mask on first. Whatever analogy you like, make sure you remember to take care of you. Supporting clients, family, kiddos, and colleagues can be exhausting. If you’re pushed to your breaking point, you can’t do any good for anyone. Set hard boundaries to do something that refuels you, even if you

have to calendar them. Whether it’s something small like a hug, or taking a walk for a few minutes, or a nap, or a bath, or something big like a spa day, give back to yourself. You’ve earned it.

HANG IN THERE. PLEASE. The statistics on women in the law continue to be dismal. While women enter the profession at the same rate as men now, women are leaving the profession in droves. According to a new American Bar Association study, Walking Out the Door, 58% of women studied listed “caretaking commitments” as one of the most important reasons for leaving their firm, with a close second (54%) being level of stress at work. The data in the study showed that women lawyers bear a disproportionate burden of the responsibility for arranging care, leaving work when needed by a child, children’s extracurricular activities, and evening and daytime care. Knowing this ahead of time, come up with a plan to help offset these demands so you don’t have to make the choice between your career and your family. Because you shouldn’t have to.

DO WHAT WORKS FOR YOU. At the end of the day, your health, happiness, and sanity are what matter most. What works for you now may be different from what worked for you B.K. (“Before Kiddos”) and what works for you next year may be different than now. The incredible thing about being a lawyer is that the profession is so flexible. You can adapt your career to your specific needs, whether it’s changing how you practice, where you practice, or what you practice. Don’t make yourself miserable trying to hang on to what used to work. You can do this. Enough said.

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

FOOTNOTES 1. Miller, Caroline Adams. “2 Reasons Why Women Don't Ask For Help In Achieving Their Goals.” Thrive Global, 9 Sept. 2019, thriveglobal.com/stories/2-reasons-why-women-dont-ask-for-help-in-achieving-their-goals/. Babcock, Linda, et al. “Nice Girls Don't Ask.” Harvard Business Review, 1 Aug. 2014, hbr.org/2003/10/nice-girls-dont-ask. Babcock, Linda, and Sara Laschever. “Negotiation and the Gender Divide.” Women Don't Ask: Negotiation and the Gender Divide, www.womendontask.com/questions.html. SAN DIEGO LAWYER

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Women in the Law

omen’s rights advocate and activist Belva Lockwood (1830-1917), one of the first female lawyers in the U.S. and the first female attorney to argue before the U.S. Supreme Court, did not live to see the passage of the 19th Amendment in 1920. Lawyers Club of San Diego, founded in 1972, advocates for the professional growth of and opportunities for women in the legal profession. The organization named an annual service award after Lockwood. The first recipient of that award was Betty Evans Boone. Boone, who turns 92 this year, remains active in Lawyers Club (notably overseeing and organizing the Lawyers Club archives) and has been a steady role model for lawyers and law students since her enrollment at USD law school in August 1959. She was the lone woman in the school and only the second female law student to graduate from USD (the first being Mary Harvey in May 1959).

Betty

Boone

Steady as She Goes By George W. Brewster Jr.

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Much has been written about Boone. Her tales about law school, the Bar Association, and overcoming the reluctance (or downright refusal) of male law partners to hire female associates all weave into a telling tapestry of discrimination. But the heart of the story, this tapestry, is Boone’s continued perseverance and push to move things forward. She was born in Baton Rouge, Louisiana — you can still hear her Southern dialect — and she got her undergraduate degree in Business Administration at Centenary College in Shreveport. She married James Boone in 1950, and thanks to his military service, they spent the next seven years overseas. In 1959 he was offered a job in San Diego with International Harvester, and they jumped at the chance to leave the 115-degree temps of Texas for the temperate climate of San Diego. They raised two boys here.

Women in the Law

With some legal secretarial experience from jobs in Louisiana and Texas, she landed a secretarial position with Dutch Higgs’ firm. “He was very encouraging to go to law school,” said Boone, so she did, at night. The Dean of the school was also one of her professors, and he regularly asked her, “You still with us?” She was the only woman in the class; the other 70 students were men and generally older and married, having first served in the Korean War. When the school’s ABA accreditation was at issue, they scrambled to put a law review together, and Boone was included. In volume 1, the San Diego Law Review lists “Boone, Betty Evans, Book Review Editor, San Diego Law Review, Vol. 1, Jan. 1964.” Boone took strength from another Betty — Betty Friedan and her groundbreaking book The Feminine Mystique, which came out in 1963. “This opened up things for women, and it carried a message to women that they didn’t have to be housewives only,” said Boone. Reflecting on her graduation in 1964, Boone said, “Higgs didn’t know what to do with me. He said it wouldn’t work out for me to work at his firm, as it would be hard to transition from having been a legal secretary there to now being a lawyer.” She spent about three years as in-house counsel for Title Insurance & Trust; the local company manager used her initials so that corporate wouldn’t know he had hired a female attorney. “It was hard to get work back then; there were very few women practicing.” It was also tough breaking into bar activities; in fact, she literally had to break into the old University Club

"Much has been written about Boone ... But the heart of the story, this tapestry, is Boone’s continued perseverance and push to move things forward." to attend a bar Probate Section committee lunch meeting, as the Club did not allow women to walk through the second floor to access the room where the lunch was being held. She used the side fire escape stairs, which accessed the dining room, to get in. Her husband also went to law school at USD. During one job interview, she was asked if her husband was working. “Yes, I said. He then asked, well why are you seeking work? And I said it was because I wanted to work; I didn’t like housekeeping. He just couldn’t understand it.” She tells of a time when she had heard that at the San Diego City Attorney’s Office, raises were being given to all of the male attorneys, but not to any of the female attorneys. She encouraged them to fight it, and they hired the former City Attorney to represent them. They got their raises. After a few failed attempts, Boone finally landed a job with the Office of County Counsel in 1967, as its first female deputy county counsel. She worked in education law, and eventually was promoted to Chief Deputy overseeing the Advisory

Division (the first female Chief Deputy for that office). When she retired after 14 years with that office in 1981, there were 10 women deputies. She spent the next 14 years as an Administrative Hearing Officer (disability and retirement hearings). Looking back, she said quite simply and bluntly, “Success in my day was getting a job.” Since 1995, Boone has overseen the historical archives for Lawyers Club, participating in the various anniversaries (30th, 40th — helping with a book and video history), and continues to help the organization prepare for its 50th anniversary in 2022. The 19th Amendment gave women the right to vote. This, in turn, fueled other advances, including educational and vocational advancements. Boone is one of those individuals who took up the cause for equal rights and moved it forward.

George W. Brewster Jr. (sandbrews@aol.com) is a retired attorney after 35 years of practice, including JAG, private practice, and the last 30 with the County of San Diego, Office of County Counsel.

SAN DIEGO LAWYER

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Women in the Law

100TH Anniversary of the 19 th Amendment A Monumental Step Toward Women’s Equality By Julie Houth

he year 2020 marks the 100th anniversary of the passage of the 19th Amendment, which guarantees and protects women’s constitutional right to vote. Although the passage of the 19th Amendment was a historic step toward women’s rights, it was just a start. 2020 is a chance to revisit and educate the public on the 19th Amendment, while promoting women’s right to vote. The American Bar Association (ABA) celebrates the centennial milestone in several ways including through its traveling exhibit with the theme "100 Years After the 19th Amendment: Their Legacy, and Our Future.” Brief Timeline of the Women’s Suffrage Movement The women’s suffrage movement forever changed the U.S. and expanded representative democracy, inspiring other popular movements for constitutional change and reform. Judge M. Margaret McKeown of the Ninth Circuit and the Chair of the ABA Commission on the 19th Amendment eloquently summarizes part of the movement: “Long before the right was recognized on a national level, which began with an effort launched at Seneca Falls, New York, the Western states led the way. In 1870, Wyoming was the first territory to grant women the right to vote and followed on with the first female judicial officer, first female bailiff, and first female jurors. After Wyoming became the first state with women’s suffrage in 1890, Colorado, Idaho, and California followed suit.”

SAN DIEGO LAWYER

The women’s suffrage movement is sometimes called “the Anthony Amendment” after suffragist Susan B. Anthony because of her prominent role in the movement. Suffragists fought long and hard for the passage of the 19th Amendment and utilized different tools of communication. They often staged costumed themed protest marches, organized church committees, held handmade signs to protest in front of the White House, and published their own newspapers that featured content on the movement. Something worth noting is that suffragists were fearless. On December 16, 1912, around 200 suffragists walked 170 miles through sun, rain, and snow from New York City to Albany, New York, a journey that totaled 12 days. Another march in 1913 from New York City to Washington, D.C. covered 230 miles in 17 days. By 1915, 4 million women in the Western states were enfranchised. On June 4, 1919, Congress passed a federal women's suffrage amendment and sent it to the states for ratification. Many states granted women the right to vote in state and local elections in advance of the ratification of the Constitutional amendment. They included Wyoming, Utah, Colorado, Idaho, Washington, California, Oregon, Montana, Arizona, Kansas, Alaska, Illinois, North Dakota, Indiana, Nebraska, Michigan, Arkansas, New York, South Dakota, and Oklahoma. California’s anniversary is November 1, 1919. According to Judge McKeown, “Today, more than 80 million women are registered to vote.”

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The 19th Amendment and Beyond: The Search for Equality On February 10, 2020 at Georgetown University Law Center, an event co-sponsored by the ABA, U.S. Supreme Court Justice Ruth Bader Ginsburg, and Judge McKeown celebrated the centennial anniversary of the 19th Amendment, which Justice Ginsburg referred to as a “miracle” and “first step toward equal citizenship stature for women.” More importantly, Justice Ginsburg holds out hope for another goal of the suffragist movement — the adoption of the Equal Rights Amendment, which was first introduced in 1923, approved by Congress in 1972, but fell three states short of the required 38 for ratification by an extended 1982 deadline. The suffrage movement reveals complexity and tensions over race and class that remain part of the ongoing story of the 19th Amendment and its legacies. The nation’s lengthy struggle to enshrine women’s right to vote in the U.S. Constitution can be used to inform modern-day battles to ensure that long-ignored communities are guaranteed voting rights and full participation in U.S. democracy. Pending local government orders on health and safety, the ABA traveling exhibit will be shown locally at the Bar Center from September 23–October 7; California Western School of Law from October 1-31, 2020; and the University of San Diego School of Law in fall 2020. Julie Houth (jhouth@rgrdlaw.com) is a staff attorney at Robbins, Geller, Rudman & Dowd LLP and co-editor of San Diego Lawyer.

Women in the Law

The Will to Find a Way

My Unique Path to Law Practice By Rachel M. Allums

or most California attorneys, their journey to the law is fairly typical. College, law school, practicing attorney. For me, the journey was fairly unique. I began as an 18-year-old legal secretary. My mother had recently reentered the workforce and followed the traditional path through law school and into solo practice. Becoming an attorney didn’t really spark an interest for me then, but I continued to work as a legal assistant, ultimately becoming a certified paralegal at age 21. After getting my associate’s degree, I made the choice that so many women do: to begin a family and put my college and career aspirations on the back burner. I continued to work part-time as a paralegal while my two children were young, allowing me to focus primarily on raising my kids while continuing to maintain my professional life and contacts. I was fortunate to work for a wonderful estate planning attorney and grew passionate about providing guidance and peace of mind to clients dealing with challenging issues such as incapacity and death. The work was interesting and challenging. I received compliments from clients and other attorneys, some of whom encouraged me to become a lawyer. In those days, people called it “challenging the bar.” Although I had embraced a career in law, taking the

bar exam sounded daunting, so I waited. But as my children grew and began to make plans for their careers, my urge to fulfill my own professional desires grew stronger. I knew I couldn’t commit to the time and expense of traditional law school, so I investigated the California State Bar’s obscure path to the law, known as study in a law office or judge’s chambers. Articles written about this program call it “learning the law like Lincoln.” Recently, it made news headlines as Kim Kardashian’s path to a law career. The program requires a dedicated mentor attorney to oversee the applicant for four years of study. The curriculum is designed by the mentor and approved by the State Bar. Study takes place for 18 hours per week with monthly written exams. Semiannual reports and grades are submitted to the State Bar for approval. After the first year, the applicant must pass the first-year law student’s exam, known as the “baby bar.” Additionally, all other requirements of admissions must be met. With the encouragement of my family, I was fortunate that a generous colleague, Jonathan Musgrove, agreed to become my mentor. We arranged my study time around my job and family commitments. The work was intense

and took extraordinary drive and self-discipline. Four years later, in May 2019, I was advised that I had met every requirement and was eligible to sit for the California Bar Exam. I took and passed the July 2019 exam on my first attempt. Today, I’m a licensed attorney embarking on solo practice. I hang my shingle with two decades of experience in the practical running of a law firm. I am benefited by having done this work from the ground up, so I know what it takes to create success and how to avoid practice pitfalls. My journey makes me keenly aware of the remarkable impact mentorship in the legal community can have in preparing new lawyers for success. True to my unusual path, I took my oath of office in my living room, surrounded by my family and mentors, who watched me set a goal and give it my all, supporting me as I worked through setbacks and celebrated triumphs. Through it all, what I have learned is there is no “right” way. It just takes the will to find a way.

Rachel M. Allums (rachel@allums.law) is the President of Allums Law, APC, a firm focused in Estate Planning, Probate and Trust Administration.

SAN DIEGO LAWYER

May/June 2020

Women in the Law

The Rise of Women in Politics By Yahairah Aristy

hen I was a young girl, I did not question that the president was a man â&#x20AC;&#x201D; that was the norm. As I grew older, I thought how great it would be if a woman was elected president. This thought was met with longing coupled with pragmatism. Interestingly, in all the years I was in school, there was no mention of the fact that in 1872, Victoria Woodhull was the first female presidential candidate. Nor was there any mention of Belva Lockwood, the second woman to run for president in 1884. In fact, it appears that all the schoolbooks erased the history of women in politics. After 1884, Margaret Chase Smith ran for president in 1964, followed by Charlene Mitchell in 1968, the first African American woman to run for president. In 1972, Shirley Chisholm ran for president, becoming the first

SAN DIEGO LAWYER

African American major party candidate to run. In 1988, Lenora Fulani ran for president, becoming the first African American and female to be on the ballot in all 50 states. In 2008, Hillary Clinton shattered records for women running for president. Clinton was the first woman to win a presidential primary, and the first to be listed as a presidential candidate in every primary and caucus nationwide. Clinton won more votes than any primary candidate in American history. In 2016, Clinton was the first woman to be nominated for president by a major party. Clinton became the first woman to win the popular vote, receiving 66 million votes. Four years later, in the 2020 presidential election cycle, a record-breaking six women ran for

| May/June 2020

president for a major party. Yet, as the 2020 presidential election cycle has unfolded, all of the women have withdrawn their candidacy. This begs the question: Is the U.S. ready to see women rise in politics? The answer is yes. The continual bravery of these women to run for president since 1872 has fueled a new wave of women running for political office. The Center for American Women and Politics (CAWP), a unit of the Eagleton Institute of Politics at Rutgers University, analyzed the women in the United States 116th Congress of 2019. CAWP determined that 126 women held seats in the 535-member Congress, a record-breaking 23.6%. Since 1917, 358 women have served in the U.S. Congress to date. California has sent more women to Congress than any other state â&#x20AC;&#x201D; a total of 43 to date. New York is next with 29 women to date.

Women in the Law Vermont has never sent a woman to Congress. As of September 2019, women were 28.9% of all state legislators nationwide, a record high (CAWP 2018 Report: Unfinished Business: Women Running in 2018 and Beyond). The accomplishments of the 116th Congresswomen and state-level women legislators are the progeny of women who had the courage to run for office, win or lose. Women should be encouraged by the 116th Congress. In addition, data shows that most Americans favor seeing more women in top leadership positions in politics. A 2018 Pew Research Center Survey, Women and Leadership 2019, found 59% of Americans say there are too few women in top leadership positions in politics, with about half saying, ideally, there should be equal numbers of men and women. However, men are less likely to say there should be equal numbers of men and women in top leadership positions. The survey also found that many Americans are skeptical that women will ever be able to overcome the obstacles keeping them from achieving gender parity in political leadership. How, then, do women rise in politics to assuage this skepticism? Women must continue to run until gender parity is achieved. While women are over 50% of the population, they remain less than one-third of elected officials at and above the state legislative level (CAWP 2018 Report). The Politico Women Candidate Tracker, a collaboration with the CAWP and the Women in Public Service Project at the Wilson Center, shows that women are not running

“While women are over 50% of the population, they remain less than one-third of elected officials at and above the state legislative level.” enough. In 2018, the U.S. House of Representatives had 435 seats up for election, but no woman ran for 154 of those seats. Similarly, the U.S. Senate had 35 seats up for election, but no woman ran for nine of those seats. If there is a seat open, women must run. Moreover, women lawyers are well-equipped to successfully run for open seats. Women lawyers rising in politics is not a cautionary tale. Not too long ago, San Diego County held its 2020 Primary Election on March 3, 2020. Two superior court judicial races had one female lawyer each — Michelle Ialeggio, San Diego County Deputy District Attorney, and Alana Wong Robinson, Assistant U.S. Attorney. Both ran for elected office for the first time and won their races. In 2018, for the first time, Maria Nunez, owner of Nunez Law Corporation, ran as the only woman running in her race for San Marcos City Council and won. In 2016, for the first time, Mara Elliot, San Diego City Attorney, ran for City Attorney of San Diego as the only woman running and won. In 2000, for the

first time, Esther Sanchez, a retired Deputy Public Defender, was the only female lawyer running out of 14 candidates for Oceanside City Council and won. In conclusion, women’s political ambitions are necessary to help women achieve gender parity in politics. One need only look at the success of the women who ran in 2018 — “… the 2018 women candidates embraced gender as an electoral asset instead of a hurdle to overcome en route to Election Day. Likewise, women challenged gender and intersectional biases while campaigning, proving their power in disrupting instead of adapting to the prevailing rules of the game.” (CAWP 2018 Report.) Let us vote for and support women rising in politics.

Yahairah Aristy (ayahairah@gmail.com) is a Deputy Public Defender, SDCBA member, and served as co-campaign manager for Akilah Weber, M.D., the first African American elected to the La Mesa City Council in 2018.

SAN DIEGO LAWYER

May/June 2020

THE COST OF LIVING AS A WOMAN A Look into the Pink and Tampon Taxes By Hailey Johnson

rom paychecks to sales tax, women often experience an altered economic reality compared to their male counterparts. Legislation is gradually removing certain burdens women face, but to some Americans, equitable laws and policies have yet to appear. Part of the altered economic reality is demonstrated by companies that favor the phrase, “shrink it and pink it.” Make it smaller, make it colorful, and make it for women. This classic marketing approach results in an increased cost of 7% for products geared toward women consumers in comparison to similar products for men. For example, a Target bike helmet decorated with unicorns is priced at $27.99, while the same helmet with sharks, thought of as more masculine, is only $14.99.1 The discrepancy can be summed up by a single phrase: the Pink Tax. 2 The Pink Tax summarizes the phenomena in which products traditionally marketed toward women have higher prices, and in some instances, sales tax. Beyond helmets, personal care products for women are approximately 13% more expensive

SAN DIEGO LAWYER

| May/June 2020

than comparable products for men.3 Two products traditionally used by men, Rogaine and Viagra, are exempt from sales tax. Meanwhile, in many states, feminine hygiene products are taxed as luxury items, resulting in the “tampon tax.” Even in states that do not tax medical and health supplies, feminine hygiene products have sales tax. A number of states have done away with this tax, including Connecticut, Florida, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New York, Ohio, Pennsylvania, and Rhode Island. California took a step toward eliminating the tax last year when Governor Gavin Newsom signed a two-year budget, which exempted the products from sales tax. First Partner Jennifer Siebel Newsom reflected that the new budget conveys that in California we “value our women.”4 In 2016, then-Governor Jerry Brown vetoed a bill removing sales tax from feminine hygiene products because of its impact on state revenue — it is estimated that the tampon tax brings in $20 million

per year. 5 However, some argue that by saving women money in this sphere, those who can afford to will spend their cash elsewhere and therefore continue to support the economy and sales tax revenues. Governor Brown was criticized for the choice by the bill’s co-author, Assemblymember Cristina Garcia, who said Governor Brown was “propping up the state budget on the backs of women.”6 In an interview with The Washington Post, Assemblymember Garcia pointed out, “Women have no choice but to buy these products, so the economic effect is only felt by women and women of color are particularly hard hit.” 7 Economics are clearly at play, and it has been argued that so are constitutional rights. In the 2016 case Siebert v. New York State Department of Taxation and Finance, it was argued that laws affecting only one sex are inherently discriminatory. The so-called tampon tax only affects one sex, and therefore violates equal protection under both state and federal constitutions. With that in mind, Jennifer Weiss-Wolf and Laura Strausfield founded Period Equity, "the nation’s first law and policy organization fighting for menstrual equity."8 Period Equity strives to eliminate the tax and remove the economic burden for individuals who cannot afford the hygiene products, such as homeless women and women in shelters and prison.

Additional advocacy efforts include free feminine hygiene products for students at New York University, Purdue University, and Texas A&M University Corpus-Christi. Further, across the country, women as young as 13 years old are fighting for free access to these products. In Rochester, Washington, two eighth-grade students began a GoFundMe page and successfully provided free products in their school’s bathrooms. Also through their own efforts, a group of female students in Colorado provided free products in their high school’s bathrooms, saying “Everyone has the right to be clean and safe.”9 Elimination of the tampon tax may seem like a small change for each individual, but advocacy groups indicate that even a few dollars per month, plus increased accessibility to hygiene products, can decrease barriers to education for young girls and allow women to further participate in their communities and economies. From assemblymembers to middle school students, women across the country are working toward a more equitable future.

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

Footnotes 1,3. Ema Sagner, “More States Move To End 'Tampon Tax' That's Seen As Discriminating Against Women.” NPR, 25 March 2018, www.npr.org/2018/03/25/ 564580736/more-states-move-to-end-tampontax-that-s-seen-as-discriminating-against-women.

7. Sarah Larimer, “The 'Tampon Tax,' Explained.” The Washington Post, 8 Jan. 2016, www.washingtonpost.com/news/wonk/ wp/2016/01/08/the-tampon-tax-explained. 8. “Period Equity.” Period Equity, www.periodequity.org.

2. Casey Bond, “7 Weird Examples Of How Women Pay More Than Men For The Same Products.” HuffPost, HuffPost, 10 July 2019, www.huffpost.com/entry/ pink-tax-examples_l_5d24da77e4b0583e482850f0.

9. Jennifer Calfas, “More States Consider Free Tampons in School Bathrooms.” The Wall Street Journal, 25 Feb. 2020, www.wsj.com/articles/more-states-considerfree-tampons-in-school-bathrooms-11582626601.

4-6. Sophia Bollag, “Gavin Newsom Wants to End California Taxes on Diapers, Tampons.” The Sacramento Bee, 7 May 2019, www.sacbee.com/ news/politics-government/capitol-alert/ article230121624.html. SAN DIEGO LAWYER

May/June 2020

Pirates Live On in the Form of Sovereign States By Lisel Ferguson

enturies ago, pirates sailed our seas, pillaged villages, and stole jewels and ships. Pirates still exist today in the form of intellectual property thieves. This is a story of pirates then and now. In 1717, Edward Teach — better known as Black Beard — stole a French slave ship he renamed Queen Anne’s Revenge. He and his crew of some 300 sailed and pillaged the West Indies for a year before their luck ran out. Queen Anne’s Revenge ran ashore off the coast of Beaufort, North Carolina, where it rested under the sea, undisturbed for almost 300 years. It was discovered by a salvage company named Intersal, Inc. in 1996. Given the ship was in North Carolina’s waters, the state was the proud owner of the shipwreck. So North Carolina contracted with Intersal to conduct recovery operations. Intersal hired a videographer, Frederick Allen, to document the recovery. Allen recorded videos and took photographs for over a decade and registered copyrights in all of his works. North Carolina uploaded some of Allen’s videos to its website, and after Allen alleged copyright infringement, the parties settled for $15,000.

SAN DIEGO LAWYER

| May/June 2020

However, North Carolina did not learn from its first piracy, posting five of Allen’s videos online as well as a photo in a newsletter. Allen again sued North Carolina for copyright infringement. A heated battle over this copyright piracy ensued. The case was filed in the Federal District Court and North Carolina moved to dismiss on the ground of sovereign immunity. Allen responded that an exception to the rule applied because Congress had abrogated States’ sovereign immunity when it comes to copyright infringement by enacting the Copyright Remedy Clarification Act of 1990 (CRCA). This act provides that a State “shall not be immune, under the 11th Amendment [or] any other doctrine of sovereign immunity, from suit in Federal court” for copyright infringement. 17 U.S.C. §511(a). The Act further specifies the State will be liable, and subject to remedies, “in the same manner and to the same extent as a private party." §501(a). North Carolina argued that pursuant to Florida Prepaid and other precedent, Congress was precluded from using its Article 1 powers to take away a State’s sovereign immunity (Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999)).

The District Court agreed with Florida Prepaid that Article 1 powers could not be used. The Court ruled, however, that an alternative route to abrogation was open under Section 5 of the 14th Amendment and ruled the suit could go forward. The Court of Appeals for the Fourth Circuit reversed by ruling that Florida Prepaid prevented recourse to Section 5, no less than to Article 1. Because the Court of Appeals held a federal statute invalid, the Supreme Court granted certiorari. Allen et al. v. Cooper, Governor or North Carolina, et al., 589 U.S. (2020). The Supreme Court started its analysis by setting forth two conditions upon which a federal court could entertain a suit against a nonconsenting State: 1. Congress must have enacted “unequivocal statutory language” abrogating the States’ immunity from the suit. Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 56 (1996) and 2. Some Constitutional provision must allow Congress to have thus encroached on the States’ sovereignty. In the case at hand, the Court concluded that condition one was met as the CRCA was clear as to its intent. The contested question that the Court addressed was “Whether Congress had the authority to take that step” in enacting the Statute? Allen argued that Article 1 empowered Congress to provide copyright protection or alternatively Section 5 of the 14th Amendment authorized Congress to “enforce” the commands of the Due Process Clause. The Court stated that neither contention can succeed as Florida Prepaid along with other precedent forecloses both positions. This position was supported by the holdings that “Article 1 cannot be used to circumvent” the limits sovereign immunity “place[s] upon federal jurisdiction.” Seminole Tribe at 73. In light of the fact that Congress could not “abrogate state sovereign immunity [under] Article 1” Florida Prepaid explained that the Intellectual Property Clause could not support the Patent Remedy Act, thus the Court concluded that it could not support its copyright equivalent, the CRCA, either. The Court next looked at Section 5 of the 14th Amendment, which can authorize Congress to

”Florida Prepaid explained that the Intellectual Propert y Clause could not support the Patent Remedy Act, thus the Court concluded that it could not support its copyright equivalent, the CRCA either.“ strip a State of immunity if done by “appropriate legislation.” In order to be “appropriate,” the legislation must be tailored to “remedy or prevent” conduct which infringes the 14th Amendment’s substantive prohibitions. City of Boerne v. Flores, 521 U.S. 507, 519 (1997). When does the 14th Amendment care about copyright piracy, one might ask? Well, because copyright is a form of property, the Court concluded that the 14th Amendment bars States from “depriving” a person of property “without due process of law.” However, in order to come within the reach of the Due Process clause, the infringement must be intentional or at least reckless. The Court found that the CRCA, like the Patent Remedy Act, “swept too far,” placing States on the same footing as a private party and did not confine suits to “willful infringement” and thus out of proportion to any Due Process problem. Maybe U.S. states make better pirates than Black Beard. Three centuries later, North Carolina won back the physical and virtual remains of Queen Anne’s Revenge. Copyright owners should sail with caution.

Lisel Ferguson (lisel.ferguson@procopio.com) is a Partner in the Intellectual Property group at Procopio.

SAN DIEGO LAWYER

May/June 2020

ATHLETES VS.

TIME THE POWER OF PANDEMICS ON THE SPORTS INDUSTRY, PSYCHOLOGY, AND PHYSIOLOGY OF PERFORMANCE By Jeremy M. Evans Cartoon by George W. Brewster Jr.

he record is clear: the entire live sports industry has been upended during the current pandemic. The result of this is that athletes, broadcasters, streamers, advertisers, and fans are all feeling the financial and emotional loss of not having sports. It started with the cancellation of entertainment and media conferences like South by Southwest (SXSW), movie theaters, and business meetings. Then came the announcements of suspended seasons for American college sports for men and women, the Women's National Basketball Association (WNBA), the National Women's Soccer League (NWSL) and Spring Training and the season by Major League Baseball (MLB), Major League Soccer (MLS), the National Basketball Association (NBA), and the National Hockey League (NHL). The National Football League (NFL) followed suit with delays and a firstof-its-kind virtual NFL Draft. The XFL then canceled its inaugural season.

Financially speaking, the industry will lose billions of dollars just from television contracts and advertising.1

SAN DIEGO LAWYER

The entertainment industry is no different. 2 The news media outlets, however, and the internet, video conferencing, gaming, and streaming are all breaking records with use and viewership numbers.3 Sports streamer DAZN, run by a former ESPN executive, has stated that they are unlikely to pay their bills. Through the CARES Act, the United States government is sending funds (by temporarily suspending the payroll tax) to individuals and offering emergency loans to businesses to survive, with incentives to those companies that do not let employees walk. On the international stage, entertainment, media, and sports conferences and games have been suspended or canceled, including Wimbledon. Most recently, the 2020 Summer Olympics were postponed to July 2021, although for advertising, branding, and historical purposes, the Games will still be called the “Tokyo 2020.” Some conference organizers and sports leagues have pivoted their businesses by going virtual via technology and platforms

| May/June 2020

and offering more, but different content. Others have gone to Esports, like NASCAR’s iRacing and NBA 2K, where professional athletes compete in their sport of gaming and fans consume the live game as if watching a broadcast on television. However, what about the psychological and physiological training of the athletes? What happens when an Olympic athlete is suddenly forced to extend training for another year before the proverbial dance? The simple answer would be that the athlete gets more time to prepare and train. True, but the athlete will also be a year older. Age matters in collegiate, Olympic, and professional sports regarding peak performance. 4 Furthermore, there is always the potential for injury and mental toughness plays a role. Practically speaking, the National Collegiate Athletic Association (NCAA) has extended college playing eligibility for an extra year.5 In the news, the MLB has extended payments to minor leaguers. Sports executives and professional

athletes have taken pay cuts and donated funds to keep employees working and dreams alive. There have been discussions about extended seasons. It would be irresponsible not to mention the issues with contract cancellations, extensions, postponements, and the implications of force majeure clauses, impracticability, and frustration of purpose.6 The above applies to sponsorships, endorsements, and salary, as much as it applies to broadcast dollars, merchandise, and vendors. Although NBA Commissioner Adam Silver has stated that 99% of viewership is online through some media platform, even before the pandemic, that 1% of in-person attendees is significant and without games being played, all parties are having a tough time adapting.7

For the athlete specifically, adaptation is both mental8 and physical.9 Once acceptance occurs (e.g., the Olympics being postponed for one year), the hard work begins. Athletes will have to fight time like Tom Brady in his Facebook special, Tom vs. Time. There is a reason that athletes utilize trainers and sports psychologists; they need them, and rightfully so. Imagine preparing for the bar exam only to be told the exam would not happen for another year. The first thought would be inconvenience, the next anger, then despair, and then maybe acceptance and preparation.

and athletes are no different. As much as the athletes need mental toughness and physicality through training, Americans and the world have used sports to get back to life and work before.10 Sports have often played a major role in the next great American comeback. When sports return, it will be one of the first steps toward life outside and beyond the virtual experience. Recovery is also about adaptation, even if by necessity. Meaning, the move to digital is happening quicker.11 Indeed, brace for change that is permanent as well.

One thing is for sure, athletes will rely heavily on their agents and family members to get through the process, not to mention the training with assistance from professionals. Everyone needs experts and help,

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.

Footnotes 1. Matthew Futterman, Kevin Draper, Ken Belson and Alan Blinder, “The

6. Schuyler Moore, “Responding to COVID-19: How to Limit Damages

Financial Blow of the Coronavirus on Sports,” The New York Times,

After a Breached Contract (Guest Column),” The Hollywood Reporter,

March 14, 2020 (https://www.nytimes.com/2020/03/14/sports/

March 16, 2020 (https://www.hollywoodreporter.com/thr-esq/covid-

sports-coronavirus-impact.html)

19-how-limit-damages-a-breached-contract-1284818)

2. Cynthia Littleton and Elaine Low, “Hollywood Braces for Coronavirus

7. Tim Bontemps, “Adam Silver lays out conditions for NBA's return,

Financial Hit That Could Change the Industry Forever,” Variety,

mulls charity game 'diversion',” ESPN, March 18, 2020 (https://www.

March 19, 2020 (https://variety.com/2020/biz/features/

espn.com/nba/story/_/id/28923583/adam-silver-lays-conditions-

hollywood-coronavirus-financial-festivals-film-television-

nba-return-mulls-charity-game-diversion)

production-1203537442/); Hadley Meares, “Closed Movie Theaters and Infected Stars: How the 1918 Flu Halted Hollywood,” The

8. Dr. JoAnn Dahlkoetter, “10 Sports Psychology Mental Training Tips,”

Hollywood Reporter, Apr. 1, 2020 (https://www.hollywoodreporter.

HuffPost, Nov. 6, 2012 (https://www.huffpost.com/entry/sports-

com/news/how-1918-flu-halted-hollywood-1286640)

psychology_b_2062354)

3. Julia Alexander, “The entire world is streaming more than ever — and

9. Coach Pace, “The Five Principles of Elite Athletic Performance,” The

it’s straining the internet,“ The Verge, March 27, 2020 (https://www.

Sports Armory (https://thesportsarmory.com/5-principles-of-elite-

theverge.com/2020/3/27/21195358/streaming-netflix-disney-hbo-

athletic-performance/)

now-youtube-twitch-amazon-prime-video-coronavirus-broadbandnetwork) 4. Ross Pomeroy, “This Is When Athletes Hit Their Peak,” Real Clear Science, June 24, 2015 (https://www.realclearscience.com/journal_ club/2015/06/25/this_is_when_athletes_hit_their_peak_109280. html) 5. Mark Schlabach, “NCAA approves extra year of eligibility for spring

10. Mark Ein, “The uniquely unifying power of sports, and why it matters,” World Economic Forum, Feb. 9, 2018 (https://www.weforum.org/ agenda/2018/02/north-and-south-korea-have-shown-us-theunifying-power-of-sport/) 11. Jeremy M. Evans, “Three Ways Businesses Must Adapt,” Sports Radio America, March 23, 2020 (https://sportsradioamerica. com/2020/03/23/three-ways-businesses-must-adapt/)

athletes,” ESPN, Mar. 30, 2020 (https://www.espn.com/collegesports/story/_/id/28972856/ncaa-approves-extra-year-eligibilityspring-athletes)

SAN DIEGO LAWYER

May/June 2020

TO OUR READERS: You are still receiving your issue of San Diego Lawyer, a world pandemic and statewide stay-at-home order notwithstanding. We want to acknowledge and thank the extraordinary efforts of our authors, the Editorial Board and especially the members of the production staff who produced this issue for you in such trying times. They have genuinely risen to the occasion, and above and beyond. Thank you all. Stay well.

Julie and Ed Co-editors of San Diego Lawyer

Congratulations CLAY Award Winners

aron & Budd would like to congratulate CLAY

entities for taxpayer, public, and environmental

award winners John Fiske and Torri Sherlin

losses caused by the 2017 Thomas and Koenigstein

along with Ed Diab of Dixon Diab & Chambers,

Fires, the 2018 Montecito Debris Flows, and the

LLP, and the supporting staff and attorneys at the

2018 Woolsey Fire.

Baron & Budd Environmental Litigation Group

As a part of this settlement, for the first time

for their hard work and dedication that resulted

ever in a wildfire case, there was an agreement

in the most comprehensive public entity wildfire

to negotiate and compensate FEMA and the

resolution in the history of the state of California.

John Fiske

California Office of Emergency Services for

The success of this case was possible due to

federal and state grant monies provided to

Shareholders Scott Summy and Stephen Johnston,

local government in a federally declared natural

and the entire Baron & Budd wildfire litigation

disaster. Mr. Fiske also fought for the rights of

group.

property owners and wildfire victims as the only

Mr. Fiske worked as lead counsel for 23 public

Torri Sherlin

victim’s lawyer to testify during the historic SB 901

entities on 26 different deals, recovering

hearings at the state capitol, advocating against

taxpayer and public resources in the aftermath

eliminating inverse condemnation. His lobbying,

of devastating and historic wildfires. Ms. Sherlin

alongside a team of lobbyists and lawyers, helped

and Mr. Diab were critical in building the case by

lead the California Legislature to vote in favor of

working every day to understand the devastating

protecting the constitutional property rights of

financial and ecological impacts the fires had on

public entities and other property owners, just

each community.

months before the devastating 2018 Camp and 2018 Woolsey Fires occurred.

In the only California wildfire settlement in 2019,

Ed Diab

Baron

Budd,

P.C.

Dallas

•

the team obtained a $360 million settlement with

Great work and congratulations for a well-

Southern California Edison on behalf of 23 public

deserved recognition!

Austin

•

Baton

Rouge

•

New

Orleans

•

Los

Angeles

•

San

Diego

•

New

Jersey

•

New

York

•

Washington,D.C.

JOHN J. CLEARY (APRIL 1, 1936-JANUARY 31, 2020) By Chuck Sevilla

ohn Cleary was best known in legal circles as the longtime Federal Defender in San Diego (1971-1983). He was also President of the California Attorneys for Criminal Justice (1981-1982), President of the California Public Defenders Association (1979-1980), and the first public defender to serve on the Board of Directors of the National Association of Criminal Defense Lawyers (1979-1985). From 1983 to 2004, he was a law partner with Chuck Sevilla. Last year, in recognition of his exceptional, unselfish devotion to protecting the rights of the indigent accused, the San Diego Defender organizations named an annual award after him. While running Federal Defenders, he championed hiring incarcerated individuals who had demonstrated good character and skills as “jailhouse” lawyers. One of them was Benjamin Franklin Rayborn. Ben was one of John’s great legacies to Federal Defenders and a beloved member of the office for over 30 years. See fdsdi.com/ben_rayborn.html. From 1964 to 1969, John worked as the Deputy Director of the National Defender Project to create and organize model defender offices. One of those he aided was San Diego Federal Defenders, which he soon headed and made into a model defender office. While running the office, John took a caseload, often taking the most difficult cases. He had dozens of Ninth Circuit oral arguments as well as six in the U.S. Supreme Court. In 1998, after getting his doctorate in Russian language and a Fulbright Scholarship, he taught in Russian at Moscow State University (MGU). He also ran law student exchanges between our countries. For San Diego State

students, he taught an annual intensive summer course at MGU. Then, he taught a summer course on the American legal system for Russian students in San Diego. He did this out of his pocket simply for the joy of creating communication and understanding between our peoples. Later, as a new challenge, John decided to learn Mandarin Chinese. He spent three years living and studying at Xiamen University. Again, he ran exchanges between the U.S. and China on the same model he created for the Russian students. Chinese students were amazed at how this 80-year-old could master Mandarin and run these exchange programs. See their wonderful documentary, “Ming Datong and His Summer Program,” at youtu.be/kt03hmZXJkc. With energy and unbridled enthusiasm for life, John was a wonderful eccentric who lived a Spartan lifestyle. He was known for his trademark Army boots that he wore both with casual clothes and to court. He was as inspiring as he was accomplished — an Army Captain and Ranger, the first Judge Advocate with the Green Berets, parachutist, academic, motorcyclist, runner, mountain climber, cyclist, outstanding defender, and leader. Despite his achievements, he was a modest man who engaged life with humility, humor, and a gift of gab. Whether in life, law, or teaching, John’s legacy is one of inspiration. He lives in the hearts of those who knew and loved him. The world is much less without him.

Chuck Sevilla (chuck@charlessevilla.com) is a criminal defense attorney in San Diego and was a partner with John Cleary for over 20 years.

SAN DIEGO LAWYER

May/June 2020

JUDGE WILLIAM B. ENRIGHT TRIBUTE By Hon. Larry Burns

illiam Benner Enright, born in New York City on July 12, 1925, joined the United States Navy through the V-12 program at age 17. He later attended Dartmouth College for officer training, receiving his commission as an Ensign in March 1945, for duty on the Escort Carrier Marcus Island. Discharged from active duty in 1946, Judge Enright returned to Dartmouth to complete his bachelor's degree in philosophy in 1947. He then attended Loyola Law School, where he received his law degree in 1950. Judge Enright began his legal career in 1951 as a Deputy District Attorney for the County of San Diego, serving under District Attorney Don Keller. He remained with the DA's Office until 1954, when he entered private practice with a group of former DAs, forming Harelson, Enright, Levitt & Knutson. Over the next 18 years, Judge Enright specialized in criminal defense, building a reputation as one of the most formidable trial lawyers in San Diego and California. It was often said that he captivated juries with his distinctive, powerful voice and eloquence, and with his incisive mind. Jurors, judges, and opposing counsel all respected and trusted him. Over the course of his career, he tried 223 cases to jury verdict â&#x20AC;&#x201D; a phenomenal achievement even by the standards of the time. His prowess as a trial lawyer is recognized by his induction as a Fellow in the American College of Trial Lawyers, and as a Diplomat of the American Board of Trial Advocates â&#x20AC;&#x201D; two prestigious, invitation-only, national trial organizations.

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Despite his busy trial practice, Judge Enright found time to participate in numerous State and County Bar activities. He served as a Board Member of the San Diego County Bar Association from 1962-1965, then as President in 1965. He served on the Board of Governors of the California State Bar Association from 1967-1970, and as Vice President of the California State Bar in 1970. And among many civic and charitable associations, Judge Enright was actively involved in the Rotary Club, United Crusade, Big Brothers, Little League, and the Urban Coalition. In June 1972, President Nixon nominated Judge Enright to the federal district court in San Diego. Confirmed by the Senate later the same month, he received his commission on June 30, 1972. Serving on an understaffed border court with one of the heaviest criminal caseloads in the nation, Judge Enright quickly developed a reputation as a knowledgeable, capable, and respected trial judge. Over 28 years as an active trial judge, he presided over more than 300 criminal and civil jury trials. He was also actively involved in court governance, serving on at least 17 Federal Judicial Committees, including the Judicial Panel on Multidistrict Litigation. Judge Enright assumed Senior Status in July 1990, but continued to carry an active caseload of criminal and civil cases until 2000 when he transitioned to inactive status. In all, he served 28 years on the federal bench.

One of Judge Enright’s most significant legacies to the bench and bar was his role with the American Inns of Court, a national association of lawyers and judges who, by mentoring younger lawyers, seek to foster excellence in professionalism, ethics, civility, and legal skills. Judge Enright was a major force in the movement's development in California. He was a founding member of the Louis Welsh American Inn of Court — San Diego's first Inn. He was also instrumental in the formation of many other Inns at both state and national levels. Judge Enright served as Trustee for the American Inns of Court Foundation from 1985 to 1992. In 1987, he was presented with the Chairman's Award, bestowed upon a "member of an American Inn of Court who, at the local, state or national level, has provided distinguished, exceptional, and significant leadership to the American Inns of Court movement." In recognition of Judge Enright's devoted service to the American Inns of Court program, prominent judges and lawyers joined together in 1991 to charter "The Hon. William B. Enright Inn of Court," which is now the largest American Inn of Court in San Diego County. Two other awards also carry his name: California Inns of Court’s “William B. Enright Award for Professionalism” and the American Inns of Court’s “William B. Enright Ethics and Civility Award." Judge Enright was preceded in death by his wife of 68 years, Bette. He is survived by a son, Kevin Enright, a distinguished judge of the San Diego County Superior Court; by his two daughters, Kimberly and Kerry; and by eight grandchildren.

Hon. Larry Burns is the Chief U.S. District Judge for the Southern District of California.

THE CHAPTER By George W. Brewster Jr.

n December 2000, District Court Judge Bill Enright, Fourth Appellate District Justice Ed Butler, and San Diego Superior Court Judge Bob Conyers (all then retired) formed a club called “The Chapter.” In 2011, Judge Enright invited me to attend one of these “Chapter” meetings, gave me its background, and made me swear not to write about it until after he was gone. This, then, is that story. Enright told me that he retired from the bench in late 2000 as he wanted to leave his reputation intact, and not stay on past his prime. But he loved the camaraderie of the San Diego judges and justices, and came up with “The Chapter” as a way for a select small number of judges and lawyers (generally admitted to the bar in the 1950s and '60s) to meet regularly and relive the days of bar lunches and judge lunches, catch up on local legal gossip, and generally enjoy each other’s company. He stated in the initial invitation in 2000: “We write to pique your interest in a suggestion for the New Year. I am retiring from active service on the federal bench, and during the holidays thought of the many, many happy occasions when a number of us broke bread together in the old San Diego Hotel and then in the federal lunchroom. I thought of the continuing seminar on interesting questionsof law, volatile courthouse gossip, and the interchange of spectacular philosophical differences.” Enright greatly admired Conyers, and on that day in 2011, Enright had driven out to Conyers' home and brought him to the San Diego Country Club, the long-time designated meeting place. Conyers was then 93 and died later that year. Butler passed away in 2003 (age 85), and Enright made it a point to remember others of the club who had since died (including Alec Cory, John Rhoades, Roger Ruffin, Raul Rosado, Howard Turrentine, Ben Hamrick, Joe Kilgarif, Bill Mudd, Paul Overton, Bill Summers, and Bill Yale, and since 2011, Rudy Brewster, George McClenahan, Bernie Revak, Peter Hughes, Art Jones, Al Weismantel, Frank Orfield, Peter Riddle, Al Lord, Fred Tellam, and Norb Ehrenfreund). The meeting room was set up in a square with 16 available seats. Usually, all but one or two of the seats were filled, and as of February 2011, Enright had only missed two of the club’s monthly meetings. There were no speakers, and no agenda — just a group of mostly retired judges hanging out and having a bit of fun. And each December, a group photo was taken by original member Tom Sharkey. “It was just a group of people who, as lawyers and judges, had the practice of law as a common denominator, respected and liked one another, and enjoyed getting together informally over lunch,” Sharkey said recently. “We gossiped, discussed current affairs and matters of interest, told jokes (not risqué, of course), and spent a lot of time reminiscing about the 'old days' practicing law in San Diego and telling stories about former colleagues who no longer were with us.” Why the secrecy? Enright felt that the limited number of members (kept at 16) could cause hurt feelings if someone was not invited into the Club. According to Sharkey, the Club continues to meet. As Enright wrote in 2011: “We all look forward to seeing friends we have not seen in years, and without this monthly gathering, would not often see these faces that brighten our lives … May we all look forward to many more good thoughts and humorous stories and to consider our good fortune in the profession that has been so rewarding for each of us. We refresh ourselves with the company and conversation of old friends and associates and look forward to our regular meetings in a private setting where we can revisit former victories both large and small. May we continue onward and upward.” SAN DIEGO LAWYER

May/June 2020

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ALL THE WORLD’S A STAGE THE SHORT AND BITTERSWEET TENURE OF D.A. CASSIUS CARTER By George W. Brewster Jr. “Give me that man that is not passion’s slave, and I will wear him, in my heart and core, ay, in my heart of heart.” —Hamlet

efore the theater next to The Old Globe in Balboa Park was the Sheryl and Harvey White Theatre, it was named the Cassius Carter Centre Stage from 1969 to 2009. Cassius Carter was born in Virginia in 1857, practiced law there, then Texas, then moved to San Diego in 1886. He was a member of the San Diego County Bar Association (founded in 1899), and the founder of the Cuyamaca Club. But largely, he was known as a Shakespearean scholar, and “was a devoted admirer of the Bard and studied his writings with care and enjoyment and was looked upon as an authority on Shakespearean lore.” (Carl Heilbron, History of San Diego County, pages 289-90). Not only did Carter know the lines of Shakespeare by heart, but he was also distinguished for his extensive vocabulary, good diction, and brilliant oratory. This singular individual was the Democratic candidate for District Attorney in 1902, running against Republican nominee Judge J. W. McDonald, whom Carter described as “an office seeker who had made the rounds of all parties and was a perpetual office seeker, and was not a man of steady character.” The Ramona Sentinel called Carter an “erratic and Democratic clown.” Nonetheless, with the support of Prohibitionists, Anti-Saloon Leaguers and others, Carter won the election and took over as D.A.

Back in Carter’s day, a person in his position wore two hats: the duly elected District Attorney and County Counsel, advising the Board of Supervisors. This dual role ended in 1959, when the D.A. no longer advised the Board, and instead the Board appointed the County Counsel (the first was Henry Dietz). In a letter from Carter to local attorney Patterson Sprigg, written while awaiting the final election results for D.A. in late 1902, Carter had hoped that by appointment there could be two men running the office. “I have promised to take charge of the criminal business of the County. What I would want to be relieved of would be the civil business — the advising of the Board of Supervisors and the County officers — by an old experienced lawyer, to whom I could safely leave matters of such grave importance.” It was widely rumored that Carter was considering his former law partner, David Withington, for the assistant position. In response, Sprigg sent back a letter expressing outrage that Carter didn’t specify that it would be Sprigg who would essentially be given the County Counsel position. He noted to Carter “if you intend me to read between the lines, I can only draw but one inference, and that you do not intend to appoint me in your office in the event of your election? Am I right? ... Cassius, your letter has hurt me very much, and my wife as well … I cannot believe that you of all men, knowing what it means to me … as well, the party and friends who have made it possible for you to be elected to the office of District Attorney for the ensuing four years …” Ultimately, no assistant was named to handle the civil matters for the Board of

Supervisors, which would be Carter’s undoing. It was said that Carter was a crusader at heart, which “led him onto some strange paths — paths which made him many political and personal enemies as well.” (Rodney Sprigg, from a paper on Cassius Carter filed in Leland Stanford’s collection in the San Diego County Public Law Library archives. Rodney was Patterson’s son). Sprigg’s 30-page paper details many of Carter’s crusades. One was his pursuit of the elimination of various fees paid to public officials, such as the County Recorder, who kept the 10-cent fee for recording births, deaths, and marriages. Carter contended the Recorder had a salary, and that was enough. He went after other public officials in a similar vein, including the County Treasurer who was pocketing a percentage of the collected inheritance taxes. The Board of Education received a per diem for the time applied to their work (they were not salaried), and Carter ruled that their time spent on preparing exam questions and looking over papers of students and teachers were not part of the Board function, and thus denied per diem for time spent on those matters. He was not building a strong support base, although he was heralded by one newspaper as the “watchdog of the county treasury.” Scrapbooks of Carter’s tenure that were maintained by one of Carter’s five offspring (Armistead) are kept by the law library and contain many letters of support for Carter’s campaign to cut expenses through denial of reimbursements by

SAN DIEGO LAWYER

May/June 2020

public officials. There was also a resolution by The Civic Federation dated March 9, 1903, praising Carter for his efforts “in relieving the County from excessive, illegal, and doubtful claims against the county funds.” (The then-President of the Federation was David Withington, Carter’s former law partner.) It should be noted that in Carter’s day, office holders were paid a set amount to run the office (clerical pay, other assistants); this included Carter, whose office received $5,000 per year, with his salary amounting to what was not otherwise spent on D.A. staff and expenses. In late 1903, Carter ruled that the Board of Education had no alternative but to enforce the vaccination of all school children. People accused him of having a personal sadistic vent (Rodney Sprigg’s paper). His likely political downfall, though, was holding unconstitutional a local

ordinance giving county printing only to unionized shops and opposing the local Federated Trades Council for dismissing a member for belonging to the National Guard. When it came time for reelection, Democrat Carter lost to Republican candidate Lewis R. Kirby by 884 votes. Kirby resigned in 1907 after one year in office, and Carter died in 1909 at the age of 52. Pallbearers included Eugene Daney (the Bar’s first President), Withington, and Patterson Sprigg. William Smythe, author of a separate history of San Diego, said in his eulogy of Carter that “he was a brave and honest soul. He was so brave that he could not help being honest; so honest that he could not help being brave. His opinions, seldom popular, were always sincere, and he expressed them with splendid disregard of personal consequences … I know of almost no other man with whom

I so seldom agreed, yet whom I so thoroughly respected … He thought his own thoughts, walked his own path, even if he thought and walked alone. Not many have the courage or the honesty to do this … His name and his character will long be remembered.” (Quoted in Heilbron, History of San Diego County, supra). “Drama is the noblest form of human expression. A people that has no love for great plays and good players will show itself to be lacking in social development, in humane politics, and in intellectual and moral life.” —Cassius Carter (March 22, 1905)

George W. Brewster Jr. (sandbrews@aol.com) is a retired attorney after 35 years of practice, including JAG, private practice and the last 30 with the County of San Diego, Office of County Counsel.

SAN DIEGO VOLUNTEER LAWYER PROGRAM

he COVID-19 pandemic has impacted every San Diegan, but for many of the San Diego Volunteer Lawyer Program, Inc.'s lowincome, vulnerable clients — whose personal safety and economic security were already precarious — the effects have been devastating. Social distancing has created dangerous circumstances for domestic violence victims and their children, who may have been forced to isolate with their abusers in unsafe homes. Many SDVLP clients have lost their livelihoods due to COVID-19, leaving them struggling to provide for their families, and at risk of homelessness. Although many federal, state, and local laws have been enacted to provide safety nets for those affected by the pandemic, navigating the avalanche of new laws can be a daunting task for those with limited experience with the legal system. Over the past several weeks, SDVLP and its volunteers have worked to

help clients navigate the patchwork of new laws and court closures, and to remotely deliver critical legal services to our clients. One silver lining of the pandemic has been the heartening display of support from San Diego attorneys. An overwhelming number of law firms and lawyers have responded to the crisis by asking how they can volunteer their time to help SDVLP clients, and SDVLP is extremely grateful. There is no shortage of opportunities to provide pro bono assistance to lowincome San Diegans, small businesses, and nonprofit organizations affected by the pandemic. Here’s how attorneys can help: • Assist a domestic violence victim by helping to prepare restraining order paperwork and/or representing him/her at a hearing; • Volunteer to provide a 45-minute consultation to a small business or nonprofit organization through

Meet Your

Bar-ista

ELIZABETH SORENSEN LRIS Senior Specialist

What are your main responsibilities at the Bar? I have the pleasure of representing the SDCBA’s Lawyer Referral & Information Service (LRIS) at community events. I also promote the Service’s benefits to our attorney members, which gives me the opportunity to meet many of them in person. Lastly, I work as part of the LRIS call center as a Senior Specialist screening calls from the public and referring them through our program or to another agency that can better assist them.

SDVLP’s COVID-19 Small Business/Legal Advice Clinic; • Assist a tenant who is unable to pay rent due to COVID-19-related hardship to provide effective notice to their landlord, or work out a payment plan; • Assist a client living with HIV/AIDS, whose compromised immune system makes them particularly at risk for COVID-19, with legal issues relating to medical care, housing, and estate planning. For the vast majority of our pro bono opportunities, no experience is necessary, as SDVLP provides mentorship and training. To learn more about these and other available pro bono opportunities, please visit our website at www.sdvlp.org/volunteer.

Jennifer Nelson is San Diego Volunteer Lawyer Program, Inc.’s Pro Bono Manager & Supervising Attorney.

How long have you been working at the Bar? I have been with the Bar Association for 10 years! What is your favorite part of your job? My favorite part is knowing at the end of the day that I was able to make a difference in at least one person’s life by assisting him/her with a legal issue. What is your favorite movie and why? Most recently, it is a movie called About Time. Life should be enjoyed not only during the great times, but every minute of every day. There is beauty in the struggles we face throughout our journey. This film reminded me of that and of the importance of time. Plus, there is some humor in it as well! What do you love about San Diego? The beaches, local restaurants, and the downtown city lights at night are what I love the most! I was born and raised in San Diego and refuse to leave this city! SAN DIEGO LAWYER

May/June 2020

WHY I BELONG Most fun/memorable SDCBA moment: Making great connections and hearing amusing client stories from other attorneys.

MARIZA LOCKHART Lockhart Legal

Education: University of California, San Diego California Western School of Law

"If I weren't an attorney, I'd be ..." A psychologist, most likely because I like to help solve people's problems.

Areas of practice: Real Estate, Contracts, and Business

Birthplace: Santa Monica, CA. Current area of residence: Hillcrest, San Diego, CA. "The best thing about being an attorney is ..." Knowing my rights and how I can respond in any given situation. What one skill has helped you be successful as an attorney, and how could others develop that skill to better their practices? Understanding people's motivations and fears is always helpful. I try to put myself in the client's shoes and think what I would want to know or hear if I were them.

WHAT TO DO

WHEN... YOUR CLIENT IS INCOMPETENT By Shannon O'Neill Jones Shannon O'Neill Jones (shannon@weberandoneill. com) is the owner of Weber & O'Neill and specializes in Wills and Trusts and Probate law.

SAN DIEGO LAWYER

Proudest career moment: Recovering money for my client from his real estate agent for breach of fiduciary duty that resulted in my client losing his home. Last vacation: Detroit, MI. Favorite book or movie: American Psycho. Best concert you've ever been to: Spice Girls. Do you have a secret talent? I can sing and was in my high school choir. What would you most like to be known for? My honesty and integrity.

e open and honest with your clients. Explain your concerns to them. Give them specific examples of behavior that led you to this conclusion and ask them if they have noticed any changes in their behavior or if they have recently been evaluated by a doctor. Your client may allow you to help them. Ask your client if they have any estate planning documents, such as a financial power of attorney or a trust. Discuss with them the option of having a family member, trusted friend, or professional fiduciary assist them. If the client gives you informed consent to discuss their situation with a loved one, make sure that you do not disclose more information than is necessary to provide them with the help that they need. If the client lacks the ability to give informed consent to the preventive measures, then you may not disclose any information, even if you believe it is in the client’s best interest. If your client has a California Uniform Statutory Form Power of Attorney or a trust, it may grant a named agent or Successor Trustee the authority to act on their behalf with respect to claims and litigation, so their named agent may be able to pursue a legal action on the client’s behalf. If the client does not have estate planning documents, a conservatorship or a courtappointed guardian ad litem may be necessary. However, an attorney may not institute a conservatorship proceeding on a client’s behalf without the client’s informed consent. A client that is incompetent may not be able to give informed consent to initiate a conservatorship proceeding, but they may be able to give informed consent to have a brief discussion with a family member who can step in and assist them. Every situation will be different.

| May/June 2020

Distinctions

ADVERTISERS INDEX

The following individuals in our community were recently honored for their achievements: Judge M. Margaret McKeown of the United States Court of Appeals for the Ninth Circuit was elected to the American Academy of Arts and Sciences in April.

Retired Judge Victor E. Bianchini has been elected as Chairman of the Flying Leathernecks Historical Foundation, supporting the Command Aviation Museum at Marine Corps Air Station, Miramar. He will also assume the Presidency of the Downtown Kiwanis Foundation of San Diego in January 2021. San Diego business and real estate attorney John H. Stephens has been selected to the University of California Hastings College of the Law Foundation Board of Trustees.

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100

B CLU

CEN PER T 2020

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

Antonyan Miranda, LLP

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Withers Bergman LLP

Gomez Trial Attorneys

Noonan Lance Boyer & Banach LLP

Wright, L’Estrange & Ergastolo

Goodwin Brown Gross & Lovelace LLP

Office of the Public Defender

GrahamHollis APC

Office of the San Diego City Attorney

Your billable hour supports access to justice!

Please Donate To Our COVID-19 Emergency Fund Today! Help us raise $50,000 for grants to support necessary legal services for our most vulnerable populations

Local organizations have reported that stress on their resources has been significant while serving an increased number of clients and victims for domestic violence, sexual assault, elder abuse, immigration law and tenant rights. Sheltering-in-place and court closures mean these communities need our help now. Donate the equivalent of one billable hour (or whatever you can) today!

WAYS TO DONATE: sdcbf.org/giveanhour 619-231-7015

info@sdcbf.org

@SDCBF sdcbf.org

EXCLUSIVE MEMBER BENEFITS sdcba.org/memberdiscounts

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

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

FREE BAR BENEFITS!

LISTSERVS TO CONNECT TO FELLOW MEMBERS

TECH & LAW PRACTICE CONSULTING Level up your law practice management with online expert help from our resident Technology and Practice Management Advisor!

CONFERENCE ROOMS & WORKSPACE

NOTARY SERVICE

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

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

LEGAL ETHICS HOTLINE

DOWNTOWN PARKING

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

BUSINESS SERVICES

SAVE 10% ON PRACTICE MANAGEMENT

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SAVE 7%, PLUS NO SETUP FEE

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

LIFESTYLE BENEFITS

SAVE 50% OR MORE

PRACTICE MANAGEMENT

Park at the lot at Union and B street for free after 5 p.m. and all day on weekends.

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

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UNIVERSITY CLUB

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

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LAW YER REFERRAL & INFORMATION SERVICE

• No-1st-year-fee commercial credit card

TrustBooks trust account software for small law firms helps you easily manage your trust account, ensure compliance with your state bar, and automatically generate the reports you need. Keep these exclusive SDCBA discounts, for as long as you have an active TrustBooks account.

FIRST THREE MONTHS FREE

SAVE UP TO 25% ON CAR RENTALS

• Interest-bearing personal checking

Receive a 10% lifetime discount on Faster Law's products designed to help your law firm work faster and more efficiently.

Cultivate great relationships with Ruby’s live virtual receptionist service. Ruby will answer, transfer, take messages, and delight every caller for you! ®

• Scanner with Remote Deposit Service

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Clio’s legal practice management and client intake software simplifies running your law firm.

AN AF F IN I PAY S O LU TION

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

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

FIT ATHLETIC CLUB LITTLE ITALY!

Reduced initiation and monthly dues just for SDCBA members.

ALWAYS FRESH MOBILE DETAILING

Keep your car like new, at special discounted rates just for SDCBA members.

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

LAWYER. BROKER.

EXPERT

NEGOTIATOR.

TENANT REPRESENTATION FOR THE LEGAL PROFESSION

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

EXCELLENCE THROUGH NEGOTIATION

619.235.9959

tbulich@toddbulich.com

www.toddbulich.com

REFERRALS THAT

REALLY PAY OFF

OVER $3 BILLION IN VERDICTS AND SETTLEMENTS SINCE 2010

PANISH SHEA & BOYLE

LLP

OVER $300 MILLION IN REFERRAL FEES PAID SINCE 2010

OFFICES IN CALIFORNIA AND NEVADA The attorneys of Panish Shea & Boyle LLP have obtained some of the most significant verdicts and settlements in U.S. history. With 21 eight-figure and nine-figure verdicts in the last 10 years, no other California or Nevada plaintiff’s firm wins this big, as often, as Panish Shea & Boyle LLP. The Firm has the resources, experience and skills to litigate the most complex cases for individuals and families who have suffered an injury or death because of the wrongful acts of others and handles cases throughout the country. Firm attorneys are licensed in many states and the firm welcomes joint ventures with lawyers who want to stay more actively involved in a case.

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

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

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