San Diego Lawyer July/August 2021 by San Diego County Bar Association

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Civility

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San Diego Women Forge Their Own Path to Leadership Appellate Adventures in Virtual Reality Attorney Civility During the Pandemic

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PRESIDENT'S COLUMN Civility & Wellness: Syncing Expectations with Reality by Renée N.G. Stackhouse

LAW SCHOOL COLUMN STEM & Law — Merging Careers by Alejandro Daniel Echeverria ETHICS Watching Out for Each Other: Hidden Duty to Clients by Edward McIntyre TECHNOLOGY Tech Tips and Tidbits by Bill Kammer BUSINESS OF LAW The Benefits of an SDCBA Membership by Ron Marcus

SAN DIEGO WOMEN FORGE THEIR OWN PATH TO LEADERSHIP by Vaani Chawla A RIPE STATE FOR LOW-HANGING FRUIT Managing Cyber Liability in California by Justine Phillips, Chelsea Staskiewicz, and Maddy Swoy

SAN DIEGO COUNTY BAR FOUNDATION 2021 GRANT CYCLE IS OPEN WHY I BELONG Get to Know SDCBA Member Judge Randa Trapp (Ret.) WHAT TO DO WHEN YOUR CLIENT IS ARRESTED by Michael L. Crowley MEET YOUR BAR-ISTA Holly Thomas Senior LRIS and SCRA Specialist DISTINCTIONS & PASSINGS Community members honored and remembered for their achievements PHOTO GALLERY

REPRESENTATION, TRUST, AND INNOVATION The Effect of COVID-19 on Communities of Color by Gayani Weerasinghe WELL, THAT'S SHOE BUSINESS by George W. Brewster Jr.

EMBRACING OUR DIFFERENCES by David A. Niddrie

APPELLATE ADVENTURES IN VIRTUAL REALITY A Conversation with Justices Haller and Irion by Wilson Adam Schooley

CALLING THE SHOTS The Law of Mandatory COVID-19 Vaccination in the California Workplace by Dan Eaton

Civility

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SUNSHINE AND CIVILITY Our Local Legal Legacy by Wilson Adam Schooley

ATTORNEY CIVILITY DURING THE PANDEMIC by Brenda Peterson

THE POWER OF THE WRITTEN WORD Civility in Legal Writing by Anne Kammer

A SAN DIEGO LAWYER GOES TO WASHINGTON D.C. Q&A with Bob Gaglione, former Deputy Director at the U.S. Department of Labor

SAN DIEGO LAWYER | July/August 2021

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SAN DIEGO LAWYER EDITORIAL BOARD Co-Editors George W. Brewster Jr.

Issue 4, July/August 2021

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President’s Column by Renée N.G. Stackhouse CIVILITY & WELLNESS: SYNCING EXPECTATIONS WITH REALITY By Renée N.G. Stackhouse

The concept of civility is a tenet of our legal profession. According to the American Bar Association, civility is the capacity to act in a manner that engenders respect for the law and the profession. In 2014, the California Attorney Oath was revised to reflect what was codified in Business and Professions Code Section 6067 and new attorneys now swear that “[a]s an officer of the court, [they] will strive to conduct [themselves] at all times with dignity, courtesy, and integrity.” In 2020, the Superior Court of California, County of San Diego local rules adopted our own SDCBA Attorney Civility and Practice Guidelines, which were originally created as the SDCBA Code of Conduct in 2008 and revised and renamed in 2018 through collaboration with the Bench and other law-related organizations.

Deserving recognition is the fact that, unless we are actively monitoring how we are doing, we might not even be aware that we are struggling personally or that, as a result, we are failing to be civil professionally. This is where the concepts of wellness and self-care become critical. We often hear that “you can’t pour from an empty cup.” The problem is that most of us don’t recognize when our cup is empty. But there are steps we can take to learn how to gauge our capacity, i.e., how much is in our cup.

Check In with Yourself Take an emotional intelligence test or self-analysis test to help you understand your level of emotional

Because it’s all mandated, it should be an easy decision to be civil in our profession, shouldn’t it? Maybe not. After all, 3.3 million people in the County of San Diego just survived a global pandemic; 20,000 of these are lawyers who have been balancing their obligations, as well as their clients. And, despite lawyer jokes and pervasive, unrealistic expectations, lawyers are not automatons. As we move forward with the lifting of COVID-19 restrictions, it is important to recognize that the trauma and experiences of the past year and a half will not disappear as quickly. Some of our colleagues may be further traumatized by the reintegration process.

SAN DIEGO LAWYER | July/August 2021

intelligence. They can help you uncover blind spots, just like the Implicit Association Test can help with revealing implicit biases and automatic associations. In addition, each morning you can conduct a selfanalysis: How did I sleep? How do I feel physically, mentally, and emotionally right now? Where is there tension in my body? How fast is my heart beating? What am I excited about for today? Where am I going to put my energy today? If you’d rather do this at night, you can ask about how your day went. What were positive moments? What do you wish had gone differently and why?

Honor What You Find It’s not always going to be sunshine and rainbows, and that is perfectly OK. Doing a regular check-in lets you monitor where you are and how long you have been there. It is healthy to feel the entire range of emotions. As my friend Dr. Naomi Wahler shared with me, the concern is when we spend too much time in one emotion or emotional state.

Address What You Can Sometimes we can identify a feeling we don’t like and we know something might help address it. If we’re stressed, a walk in the fresh air and sunshine can make a huge difference. Maybe it’s about getting another hour of sleep if you can. For me, doing a guided meditation can help enormously if I’m stressed, anxious, or can’t sleep. We don’t know to do these things if we aren’t aware of how we’re feeling.

Acknowledge Where You Are and Act Accordingly Whether or not you can change how you’re feeling, acknowledging where you’re at emotionally is important. When I know I’m feeling sad or impatient or stretched

thin, I also know to put extra effort into how I engage with people. Therein lies the trick; if you have enough awareness to know where you are, you can put your awareness into ensuring you are civil when you need to be.

Remember to Give Grace Even if we work to be mindful of how we’re feeling, even when we work to be civil, sometimes we slip. Again, lawyers are not automatons. We are beautifully, imperfectly human. Let us remember to give each other grace as we come out of this pandemic and as we move forward. So, yes, we can have an expectation that our colleagues will act with civility in this profession. No, you can’t be a jerk and just blame the pandemic. And yes, we can still acknowledge that our colleagues are human. These things are not mutually exclusive. We are well-positioned to extend that civility to each other because who else would understand the stressors of practicing law better than we do? Renée N.G. Stackhouse (renee@stackhouseapc.com) is the founder of Stackhouse APC.

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THANK YOU

TO OUR PATRON & FRIEND MEMBERS

The SDCBA gratefully acknowledges the generous commitment of members who support our community at the Patron and Friend membership levels. You can become a Patron or Friend member when you activate or renew your membership online, or by request at any time. If you are interested in upgrading, contact mbr@sdcba.org. For more information, please contact our Member Services Department at (619) 231-0781 x3505. Patron and Friend member lists as of July 10, 2021.

PATRON MEMBERS Marc D. Adelman Doc Anthony Anderson III Mylinh Uy Arnett Jane Allison Austin Danielle Patricia Barger Hon. Victor E. Bianchini (Ret.) Jedd E. Bogage James A. Bush Adriana Cara Hon. Jose S. Castillo Christine M. Chacon Robert P. Cogan Andy Cook Steven T. Coopersmith Ezekiel E. Cortez Taylor Darcy Warren K. Den John A. Don William O. Dougherty Hon. Bonnie M. Dumanis (Ret.)

Alexander Isaac Dychter Matthew J. Faust Sergio Feria Nicholas J. Fox James P. Frantz Matthew David Freeman Jennifer French Erin M. Funderburk Douglas A. Glass Alvin M. Gomez Van E. Haynie Matthew C. Hervey Stephen M. Hogan A. Melissa Johnson Carla B. Keehn Sara M. Kelley Carolyn M. Landis Lilys D. McCoy Jillian M. Minter Virginia C. Nelson

Ron H. Oberndorfer Anthony J. Passante, Jr. Kristin Rizzo Ana M. Sambold Wendi E. Santino Thomas P. Sayer Johanna S. Schiavoni Pamela J. Scholefield Wilson Adam Schooley Khodadad Darius Sharif Hon. Stephanie Sontag (Ret.) Renée N.G. Stackhouse Todd F. Stevens Christopher J. Sunnen Genevieve A. Suzuki Thomas J. Warwick Andrew H. Wilensky Karen M. ZoBell

FRIEND MEMBERS Rochelle A'Hearn Alison K. Adelman Pedro Bernal Bilse Jivaka A.R. Candappa Linda Cianciolo David B. Dugan

Michelle Ann Gastil Ronald Leigh Greenwald Mark Kaufman Randall E. Kay Matthew J. Norris Anne Perry

Kristi E. Pfister Blanca Quintero Stella Shvil Michael A. Van Horne

LAW SCHOOL COLUMN by Alejandro Daniel Echeverria

STEM & LAW — MERGING OF CAREERS It is common to see people with majors such as History, English, Philosophy, and Political Science pursue a career in the legal field. The practice of law and these undergrad degrees have similar foundations as they focus on reading, writing, and the analytical interpretation of words. On the other hand, only a small percentage of students who pursue a career in law have backgrounds in science, technology, engineering, or mathematics (STEM). This may not be shocking given that STEM majors rely upon numbers and formulas rather than words.

But why not have both law and STEM expertise? Prior to entering law school, my greatest concern was the amount of reading and writing. After all, it is not surprising that engineers prefer technical tasks rather than writing tasks. The basis for STEM degrees relies on more technical assignments that require brief drafting of explanations that can easily be understood by fellow professionals. Astoundingly, I have learned in my first year of law school that professors have a similar approach to engineering problems: concise and to the point. Another common approach is finding the most efficient solution, among many, to a problem. I believe that law school’s approach should be communicated to STEM majors to attract

What are some benefits that can be predicted from an increase of lawyers with STEM backgrounds? In this evolving world, it is hard to keep up with technological advances. As we continue to use technology to interact with each other in a globalized world, STEM-related disputes will continue to rise. Often, the understanding of technology becomes an issue to lawyers who lack the expertise that those with STEM backgrounds possess. These skill sets may be different from what a typical law student required in the past. Now, everything is becoming tech and data-driven. Therefore, having legal and STEM expertise can significantly improve the services provided to clients where such an understanding is required. Additionally, legislation and policy efficiency concerning STEM matters will benefit if lawyers are able to foresee the technicalities and impacts of new legislative amendments and restrictions. Lastly, I see the merge of these careers as an advantage and a necessity due to the technological revolution we are experiencing. Having a STEM background has been a door-opener for me; my previous thoughts about law school have completely changed after my first year at California Western School of Law, and now I understand how these careers complement each other. Let’s encourage STEM majors to pursue legal degrees!

qualified candidates and benefit the legal community as a whole. Just as I was surprised, those with STEM expertise would also be happy to know how these areas interrelate.

Alejandro Daniel Echeverria (adecheverria@law.cwsl.edu) is a first-year law student, full-time engineer at Solar Turbines, part-time intern at Insigne LLP, and Secretary for the Intellectual Property Law Association.

SAN DIEGO LAWYER | July/August 2021

ETHICS by Edward McIntyre

WATCHING OUT FOR EACH OTHER HIDDEN DUTY TO CLIENTS Macbeth, Duncan, and Sara are masked and gathered — after more than a year — around Macbeth’s conference table. Duncan spoke. “Uncle, great to be here in person — finally.” Sara nodded. “Indeed. Zoom worked well, but I’ve longed for this day.” Macbeth turned toward the door. “Let’s not keep our visitor waiting. Zack, please join us.”

“On calls, Zoom meetings. He’s confused about the case. Getting worse. Missed meetings. No explanation. Client sends requests. Doesn’t respond. Or his response is way off — talks about facts that don’t apply to our case. Once, the client brought it up, he fought back. Embarrassing.” Duncan responded, “Ouch.”

“Zack has a dilemma. He asked if we’d help.”

“It’s gotten really bad. At a recent Zoom hearing, he started to argue against a summary judgment motion. Got confused. Argued facts and law totally off point. The judge picked up on it. Let me step in. Finish the argument.”

Macbeth’s gesture invited Zack to start.

Macbeth nodded. “Lucky there.”

“I’m a senior associate at a small litigation firm. Like you, just starting back from COVID.” He took a deep breath. “I’ve been working on a case for three years. With a senior partner. Really senior. One of the name guys. Set for trial in four months. My problem is Senior Guy, I’ll call him that. Big change in behavior. Scares me.”

“I told the judge I’d written the opposition. Perhaps I could ‘clarify’ — finger quotes — some citations. It was an opening.”

A young man, also masked, took the fourth chair.

“Like what, Zack?”

SAN DIEGO LAWYER | July/August 2021

“Good thinking. Senior Guy’s reaction?” “Pissed. Blames everything on Zoom. Pandemic. Remote work. Denies any problem. Says he’s ready to try the case. Basically, mind my own damn business. Stay the expletive out of this.”

Sara asked, “What happened with the motion?”

your ethical obligations to the client.”

“That’s part of the problem. Denied — which is great. Then the lawyer on the other side sent a settlement offer. Just discovered it accidentally. Senior Guy never sent it to the client — far as I can tell. By its terms, at least, it’s expired.” Zack shook his head.

“But? There’s always a but — ”

Macbeth spoke. “Whatever problems Senior Guy’s having, they don’t absolve him from obligations to your client. Duties of competence. Diligence. Obligation to communicate a settlement offer.” Sara spoke. “What’s scary is he can’t recognize his problem.” Macbeth nodded. “I agree. The idea he’s ready or even able to try this case seems reckless, if not grossly negligent, when it comes to the client’s interests.” “Where’s that leave me?” “We’ll come to that. A question about the firm, first. Are there partners or shareholders?” “Yes, seven partners. Two other associates, senior, like me. Four younger associates. Paralegals.” “That helps. Let’s take Senior Guy’s instruction to you. Basically, do nothing. Given what you describe, it’s not a ‘reasonable resolution of an arguable question of professional duty,’ to quote the rule. Agree?” “Completely. He’s telling me ‘buzz off.’ Ignore any responsibility to the client.” “So, step one. Tell one or more partners what you know. Preferably a partner or partners with management responsibility. That triggers their duty as supervisory lawyers.” “That's gonna make me popular.” “Unfortunately, it doesn’t get you completely off the hook.”

“Usually. If you conclude the firm’s resolution is not a reasonable solution ... doesn’t protect the client ... you may have to do more. Including contacting the client directly.” “Ouch.” “Be thankful. Think of someone in your shoes who’s the only lawyer with a ‘Senior Guy.’” “Wow. What’s he do? Go to the client?” “Certainly a significant development in the representation, wouldn’t you say?” “Yeah. Just wouldn’t want to be there. What happens in my case if the client wants me to try the case?” “Now we’re talking your duty of competence. Do you have the learning and skill to do it? You and the firm will have to face that. And the firm — what resources can it realistically employ for both of you to meet your obligations to the client? If you and the firm can’t, must it consider withdrawal? Just a few ethics issues an impaired lawyer raises.” Zack started to push his chair back. “I’ll be the firm hero.” Sara turned. “Zack, the firm’s lucky — because of you. Think of the disaster it might have if you hadn’t recognized the problem. Decided to ignore it.” Macbeth spoke. “Remember, we’re always here to help.” Editorial Note: Macbeth referred to rules 5.1 and 5.2, responsibilities of managerial, supervisory, and subordinate lawyers. See also State Bar Formal Opinion No. 2021-206, which addresses ethical obligations arising from a lawyer’s mental impairment.

“Ugh! What else?” “If that partner, those partners, step up, adopt measures to protect the client moving forward, then you’ve fulfilled

Edward McIntyre (edmcintyre@ethicsguru.law) is a professional responsibility lawyer.

SAN DIEGO LAWYER | July/August 2021

TECHNOLOGY by Bill Kammer

TECH TIPS AND TIDBITS By Bill Kammer

Amazon Sidewalk You might have missed the news of the launch of Amazon Sidewalk on June 8. On that day, Amazon embarked on an effort to establish neighborhood mesh networks that allow neighbors to use your Wi-Fi to access the internet. If you didn’t opt out by that day, Amazon immediately enrolled your Amazon devices such as Ring and Echo. Ordinarily, few people change their default settings, so most will probably be participants in the system. Sidewalk allows sharing a small, encrypted slice of your internet bandwidth with neighboring Sidewalk devices lacking connectivity, but you can still reverse that default by going into settings and turning off Amazon Sidewalk. That’s all you must do to bail out of this novel experience. In this cybersecurity age, prudence favors opting out, especially when you consider how much personal information Alexa knows and your Ring camera has observed.

Operating System and Software Updates Every day brings more suggestions of required updates to operating systems, software, and applications. Many delay or ignore them because of the interruptions and time consumptions occasioned by downloading and installing those updates, particularly if multiple devices require updates: computers, tablets, and phones. Given the many ransomware and malware attacks in the news, we ignore those prompts at our peril. Although many update announcements suggest they are improving our experience, they often mask the reality that the update patches a vulnerability to a recently discovered security risk. For instance, “[t]his version holds performance improvements and small bug fixes to enhance your experience.”

Email Discovery Despite the proliferation of social media data and the growing utilization and content of messaging apps, day-to-day, email remains the major component of ESI to preserve, harvest, review, and produce. Often, the attachments to the emails also constitute a significant

SAN DIEGO LAWYER | July/August 2021

portion of reviewable ESI. Because the pandemic has affected work locations, lawyers must be alert to the reality that custodian emails may be found at many locations and in multiple folders. Much of that data may be redundant or duplicative, but it still must be preserved and reviewed until those conclusions can be reached. This is a brief list of locations that must be searched: MS Exchange Server; RM365/O365 via Exchange Web Service (EWS); Microsoft Graph API; PST email archives; Gmail and Google Suite; IMAP and POP3; and MSG or EML Files. This list is not meant as a test but as a suggestion that forensically sound collections must include access to and collection of email residing in multiple forms at different locations, potentially requiring different tools.

Security Checklist for Vendor Contracts The ABA recently published the second edition of its Cybersecurity Checklist. Small firms and solos often outsource certain tasks to vendors and provide them access to clients’ sensitive data or even the attorneys’ internal systems and confidential data. The checklist will aid attorneys lacking great experience with the nuances of privacy and data security to minimize the cybersecurity risks resulting from those vendor relationships. The list is $25, but free to members, and can be found at www.americanbar.org/products/ecd/ ebk/411859099.

Malware and Ransomware Colonial Pipeline; Scripps Health; Tulsa, Oklahoma; GEICO Insurance; New York City’s MTA; meat processors; the list goes on and on. The availability of do-it-yourself resources for hackers has elevated an occasional threat to a national crisis. Average ransomware paid in 2020 was about $310,000, up 177% from 2019. It is so potentially lucrative to criminals that urgent action is necessary. The Department of Justice (DOJ) sent guidance in June to all U.S. attorneys, elevating investigations of ransomware attacks. They are now to give ransomware investigations the same priority

as terrorism. Additionally, the DOJ announced the formation of a task force to confront the growing challenges.

White House Guidance on Ransomware Defenses In early June, the White House alerted American businesses to take urgent action to improve their defenses against ransomware. The memo contained basic steps, which are as appropriate for lawyers as they are for the companies addressed in the warnings. These include 2FA or multifactor authentication (MFA); regular backups; segregation of backups from principal systems so that both cannot be compromised; penetration testing; segmenting networks, separating administrative from operations; and planning for the inevitable breach including an incident response plan.

Random Notes About Ransomware There is abundant information and reference material that lawyers might consider in minimizing their cybersecurity risks and dealing with ransomware. For instance, some advise that encryption in place of sensitive data may avoid the most major costs of a data breach because the loss of that data may not invoke data-breach notification laws. Others advise following the FBI’s advice to never pay ransom to get your data back. The FBI’s focus is probably to prevent criminals

from profiting, but there are other reasons for not paying. A recent report found that only 8% of those who paid ransom got all their data back and 29% got back less than half. Some companies have found that the slow decryptors provided after paying ransom are next to worthless for the recovery of the data. Colonial Pipeline was a good example of that experience. They ended up restoring their systems from backups. It’s not whether, but only when. Though one paragraph can never encapsulate the most appropriate advice, lawyers are not without assistance. The Cybersecurity and Infrastructure Security Agency (CISA), the government’s cybersecurity expert, has issued best practices for minimizing the risk of ransomware impacts upon operations at https://us-cert.cisa.gov/ ncas/alerts/aa21-131a. CISA also maintains a resource website specifically for lawyers at www.cisa.gov/ resources-lawyers. Finally, remember that the FBI is the lead agency for the investigation of cyber attacks. Prompt notice to the FBI can often result in substantial assistance. Its recovery of Colonial Pipeline’s ransom payment is a perfect example.

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

Stanford And Associates

IS BACK!

We are pleased to announce the return of Stanford And Associates, an established legal malpractice firm founded three decades ago. We’ve reassembled our original team of lawyers, with a combined 50 years of prosecuting and trying legal malpractice claims throughout the state. Unlike other law firms, Stanford And Associates: • Never charges a consultation fee • Never bills our clients by the hour • Never represents or defends lawyers • Never handles fee disputes between lawyers We are pure contingency fee lawyers and we pay referral fees!

STANFORD AND ASSOCIATES www.stanfordandassociates.com 101 W. Broadway, Ste. 810 San Diego, CA. 92101

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Business of Law by Ron Marcus

THE BENEFITS OF AN SDCBA MEMBERSHIP How we support you and your practice

The SDCBA is here because you are. Our mission is simple: to connect lawyers and support their success and fulfillment. To that end, the SDCBA offers you a massive collection of programs, services, vendor discounts, ways to connect, and ways to give back — all to help you grow your skills as a lawyer, grow your practice, and improve the lives of the people you serve. Just about everything we offer you is 100% included in your annual membership fee, which is less than the cost of a typical billable hour. Here is the complete list:

Connection to over 9,000 attorneys, judges, and legal community members in San Diego County with our 26 members-only, practice-area listservs. Free and discounted members-only programming, education, and networking opportunities to support the success of your practice, your growth as a lawyer and a leader, and your wellness. Fulfilling volunteer and pro bono opportunities to help our community at large. Unlimited free consulting hours with our expert Technology and Practice Management Advisor (this could save you thousands of dollars). Free access to view our entire library of technology and practice management how-to videos.

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Free members-only Legal Ethics Hotline. Free subscription to San Diego Lawyer magazine and our regular e-newsletters.

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Ron Marcus is the SDCBA’s Director of Marketing & Outreach. He can be reached at rmarcus@sdcba.org.

SAN DIEGO COUNTY BAR ASSOCIATION

LEADERSHIP ACADEMY BUILDING LAWYERS AS LEADERS Gain essential skills and relationships to be an effective leader within the profession and the community as a whole. Learn more and apply: www.sdcba.org/leadershipacademy

Inaugural class starts: January 2022 Deadline to apply: September 15, 2021

SAN DIEGO WOMEN FORGE THEIR OWN PATHS TO LEADERSHIP By Vaani Chawla

s I watched the 2021 State of the Union Address, I marveled at the sight of not one, but two women seated behind President Biden. “Madame Speaker'' and “Madame Vice President,” he announced. Conscious of the historic moment, a tingle ran down my spine. While Kamala Harris’ ascent to the vice presidency spurred renewed hope in women leaders at the national level, San Diego women1 have also been breaking new ground and taking charge of government and private organizations. At the municipal level, Mara Elliot leads the City Attorney’s office. Elliot started by representing schools, the transit district, the County, and the City. She ran for City Attorney in 2016, spending months meeting with people from every corner of San Diego, answering questions, and earning their trust. Despite her popularity, her own political party endorsed her male opponents. Steadfast and resolute, Elliot persisted. She won and became the first Latina and woman City Attorney. At the county level, Summer Stephan leads the District Attorney’s office. After working at the DA’s office for decades, she was chosen to lead as District Attorney. In a San Diego Magazine article,2 Stephan described compassion as her motivation for often difficult work. She said she spent years “looking in the eyes of pain, looking at people who have lost so much.” Stephan expressed a deep sense of empathy and a desire to support victims. Presiding Judge Lorna Alksne gave birth to two children while pursuing her law degree. After practicing law for a few years, she took time to juggle child care with volunteering as a judge pro tem. Judge Alksne became Court Commissioner and was later appointed to the Superior Court bench. Recognized for her expertise in a broad variety of trials, Judge Alksne’s peers elected her to serve as Presiding Judge. In a San Diego Union-Tribune article, Judge Alskne said she hoped that one day, “having a woman presiding judge will no longer be news.”3

SAN DIEGO LAWYER | July/August 2021

The private sector has its own stars. This year, Klinedinst PC selected Heather Rosing as the firm’s CEO and President. Rosing developed her reputation as a legal malpractice defense expert, and she became a well-recognized leader in the legal community. In an SDCBA podcast, Rosing advised budding women lawyers to build a client base through genuine relationships. She said, “Combine that relationship with competency and skill ... and you will have a big book of business at the end of the day.” 4 Women like Janice Brown find their path through entrepreneurship. After a federal judge encouraged her to explore different avenues for professional growth, she created her own law firm, Brown Law Group.5 Brown also created a business development system, called “Beyond Law,” modeled on the methods she used to grow her own practice. In a San Diego Business Journal article,6 Brown stressed that the key to business development is authenticity. It becomes “magnetic,” she said, “because you’re comfortable in your own skin.” San Diego women are also leading legislators. Dr. Shirley Weber, the daughter of Arkansas sharecroppers, is the first Black woman to serve as California Secretary of State. Tony Atkins, the daughter of a seamstress and a miner, is the first woman and openly LGBTQ person to lead the California State Senate. Of course, the triumphs of today’s women would not have been possible without those who blazed the trail. Decades ago, Justice Judith McConnell,7 Congresswoman Lynn Schenk,8 and others took the first steps. These women destroyed institutional barriers and in 1972 founded Lawyers Club of San Diego. They opened doors so women could practice law the way we do today, each in our own unique and authentic way. Watching the State of the Union, I noticed that the Vice President and Speaker of the House were both women from California. Like them, San Diego women have not been idle. They have been busy smashing one glass ceiling after another. I would not be surprised if someday, one of our own becomes the third woman on the television screen standing at the podium, delivering the State of the Union. When that day comes, I will be there to cheer her on.

Vaani Chawla is the founder of Chawla Law Group, APC, a business immigration law firm. She has advocated for legislation supporting women and immigrants. She was the 2019 SABA San Diego President, a current Lawyers Club Board Member, and a member of the SDCBA’s Anti-Racism Subcommittee.

FOOTNOTES 1.

There are many more successful San Diego women lawyers and legislators whose achievements are deserving of attention. This article discusses just a few examples.

Glenny, Erin Meanley. “Summer Stephan on Justice, Motherhood, and Not Taking Shortcuts.” San Diego Magazine, 10 Jan. 2020, www.sandiegomagazine.com/people/summerstephan-on-justice-motherhood-and-not-takingshortcuts/article_08307fde-a914-52f8-9b0f607f3ce1e615.html.

3. Repard, Pauline. “Presiding Judge of San Diego Superior Court in 2020 Eyes Challenges in New Tech, Laws.” The San Diego Union-Tribune, 27 Dec. 2019, www.sandiegouniontribune.com/news/ courts/story/2019-12-27/presiding-judge-ofsan-diego-court-eyes-challenges-in-new-techlaws. 4. Linares, Adriana. “Time to Meet & Confer! (E4) Women Leading in San Diego Law from SDCBA's Meet and Confer: Podcast Episode on Podbay.” Podbay, 22 Nov. 2019, podbay.fm/p/sdcbasmeet-and-confer/e/1574412960. 5. Brown Law Group merged with Meyers Nave in October 2020. 6. Rocha, Natallie. “Encouragement Changes Lives.” San Diego Business Journal, 31 Jan. 2021, www. sdbj.com/news/2021/jan/31/encouragementchanges-lives. 7.

Justice McConnell is currently Administrative Presiding Justice of the 4th District Court of Appeals. She is a founding mother of Lawyers Club of San Diego, and she was the first woman to serve as Presiding Judge of the Superior Court of San Diego.

8. Congresswoman Lynn Schenk served in the 103rd Congress. She is a founding mother of Lawyers Club of San Diego, and she was the first woman Secretary of the California Business, Transportation and Housing Agency.

SAN DIEGO LAWYER | July/August 2021

A RIPE STATE FOR LOW-HANGING FRUIT: MANAGING CYBER LIABILITY IN CALIFORNIA By Chelsea Staskiewicz, Maddy Swoy, and Justine Phillips

Viruses (both biological and digital) plagued businesses in 2020 and 2021, causing disruption and unprecedented loss. COVID-19 forced employees from company premises into their homes. Businesses scrambled to provide remote access to their networks and systems. While the coronavirus relentlessly traversed through our communities, malware viruses also spiked. Continuous ransomware attacks on critical infrastructure, like hospitals and gas pipelines, signal that our supply chain remains vulnerable even though the pandemic is winding down. Cyber experts report a 400%-plus increase in ransomware attacks in the past 18 months, many caused by exploiting vendors and weak links in the supply chain. Containing and recovering from a cyberattack is only the first phase in managing risk. Regulatory inquiries and consumer litigation are also on the rise. Here we will explore why California is a fertile battleground for managing cyber liability.

California Consumer Privacy Act Is Thorny The California Consumer Privacy Act (CCPA) came into effect January 1, 2020, producing two landmark rights for California residents if a business fails to reasonably secure their data: (1) a private right of action to sue a business on behalf of themselves and all residents similarly situated; and (2) statutory damages from $100-$750 per incident, per person. California law also requires businesses that experience a breach impacting 500-plus California residents to report to the California Attorney General (AG), who then publicly posts the notices and breaches on its website. The number of 20

SAN DIEGO LAWYER | July/August 2021

breaches is increasing exponentially. In 2019, 159 businesses reported breaches to the AG. In 2020, 271 businesses reported. In the first 6 months of 2021 alone, more than 209 businesses have reported breaches to the AG. These laws, coupled with persistent cyberattacks, make the Golden State ripe for class action breach litigation.

Harvesting Wisdom from Backroads Nearly 100 CCPA cases have been filed in California state courts in the past 18 months. One recently filed case against an adventure travel company, Backroads, illustrates common claims Plaintiffs’ allege and difficulties businesses face post-breach. Backroads discovered it was the victim of a cyberattack on October 16, 2020. On November 19, 2020, Backroads notified individuals and the Attorney General. Less than six months later, on April 26, 2021, a CCPA class action lawsuit was filed alleging Backroads failed to reasonably secure employee data. Yoshida v. Backroads, No. 3:21-cv-03034, ECF No. 1 (N.D. Cal.). (Backroads.) The Complaint provides valuable lessons to plant seeds of change for all organizations managing cyber risk. • Safeguard Employee Data. The Complaint alleges Backroads failed to reasonably secure employee data. Businesses regularly collect sensitive data from employees (Social Security number, government identification, COVID data, medical information, health insurance data, and usernames/

passwords) to comply with legal requirements. These data elements trigger notice obligations, statutory damages, and CCPA liability if the data is compromised. Map employee data and implement defensible technical and procedural safeguards to keep this data secure. • Review Online Privacy Policy. Plaintiffs allege Backroads made promises in their privacy policy to “protect the private information that you provide to us.” The Federal Trade Commission (FTC) has taken the position that failure to live up to promises made in a privacy policy may constitute an unfair or deceptive trade practice. California's Bus. and Prof. Code § 17200 similarly prohibits unlawful, unfair, or fraudulent business practices. In addition to increased risk of consumer litigation, the FTC and AGs have increased their investigative and enforcement authority to levy substantial fines and penalties on businesses. Review and revise the privacy policy to ensure what you think/say/do about securing data is in harmony with it. • Get Specific in Notices. Plaintiffs allege Backroads failed to inform employees of the specific data elements compromised and as a result Plaintiffs

suffered additional harm. Understanding the specific data elements compromised is a time-consuming process and can be complicated if the threat actor encrypts systems and deletes files. Providing specific information in notices gives consumers some transparency about the type of data compromised. The 2020 viruses have taught us that even in isolation, we are wildly interdependent and interconnected with one another. All eyes are on California as the decisions in these CCPA class actions will start to shape what is (and is not) considered “reasonable security.” Other states will continue to watch how CCPA litigation plays out in California courts as they introduce similar CCPA legislation.

Chelsea Staskiewicz, Associate at Sheppard Mullin Richter & Hampton LLP (cstaskiewicz@sheppardmullin.com) Maddy Swoy, Legal Intern at Sheppard Mullin Richter & Hampton LLP (mswoy@sheppardmullin.com) Justine Phillips, Partner at Sheppard Mullin Richter & Hampton LLP (jphillips@sheppardmullin.com)

THE BEST LEGAL PARTY IN TOWN Join us for Great Food, Drinks, Live Music and Sunset Views Saturday, September 25, 2021 6-10pm at La Valencia Hotel

Donate a Live/Silent Auction Item or Become a Sponsor Today! For More Information or to Register, Visit:

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Host - $300, General Admission General Admission - $200- $175 Judiciary, Government and Young Attorneys - $100

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A Benefit that Supports San Diego Legal Charities

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San Diego County Bar Foundation 2021 Grant Cycle is Open

In a testament to its ongoing mission to increase access to justice

and in partnership with the San Diego County Bar Association.

across San Diego County, the San Diego County Bar Foundation’s 2021 Indigent Criminal Defense and General Grant Cycles are The Foundation’s mission has assumed an even greater significance currently accepting applications. as the San Diego County region begins to recover from the impact of the COVID-19 pandemic. The Foundation grants are awarded to nonprofit and legal aid organizations that offer legal services and promote understanding “Now more than ever, it’s critical to give back to and invest in of the legal system with funds used to serve immigrants and our most at-risk communities,” Foundation President Alreen asylum seekers, the working poor, domestic violence survivors, Haeggquist said. “At the San Diego County Bar Foundation, we people with disabilities, veterans, the homeless, low-income take our role and responsibility incredibly seriously; we know seniors and at-risk youth. that the funds we allocate in the community can and do have a specific, measurable impact on people’s lives. We are grateful for Since the Foundation began its grants program in 1979, it has the continuing contributions to our Foundation from members distributed in excess of $4 million to more than 50 legal aid and of the legal community, and we look forward to learning more public interest organizations through grants made possible by about the good work our grantees will surely do in the coming contributions from San Diego’s legal and business communities year.”

DONATE TO THE SAN DIEGO COUNTY BAR FOUNDATION AND HELP US AWARD MORE GRANTS • Sponsor or attend An Evening in La Jolla • Give the equivalent of your billable hour • List the Foundation as a cy pres recipient

• Donate to the Distinguished Lawyer Memorial • Consider the Foundation in Estate/Planned Giving • Make any contribution you can Venmo@SDCBF

For more information on the ways to give, please visit sdcbf.org. The Indigent Criminal Defense (ICD) Fund is provided exclusively for the furtherance of and to support indigent criminal defense purposes, including programs, projects and activities in San Diego County. Indigent Criminal Defense grant applications are due August 1, 2021 at 11:59 pm. The General Grant Cycle is provided to facilitate and expand the availability of legal services, improve the administration of justice and the San Diego court system, and to promote public understanding of the law. General Grant applications are due September 1, 2021 at 11:59 pm. To learn more about the San Diego County Bar Foundation grant programs, or to submit a grant application, please visit, sdcbf.org/grant-programs/. SAN DIEGO LAWYER | July/August 2021

Civility

SUNSHINE AND CIVILITY: OUR LOCAL LEGAL LEGACY By Wilson Adam Schooley

tticus Finch’s impassioned closing argument in To Kill a Mockingbird concluded, “There is one way in this country in which all men are created equal — there is one human institution that makes a pauper the equal of a Rockefeller ... and the ignorant man the equal of any college president. That institution ... is a court of law ... I'm no idealist to believe firmly in the integrity of our courts and in the jury system — that is no ideal to me, it is a living, working reality.” When I stepped from my battered four-cylinder Honda Civic onto the Pacific shores in 1984 after the long drive from Duke Law School, that was the ethos I encountered in the San Diego legal community. I say so with neither hyperbole nor nostalgia. There was a palpable, shared sense that we were all pulling together as officers of the court and tribunes of justice; a communal commitment to core values of fairness, integrity, dignity, and mutual respect. I learned this “living, working reality” of the little local legal world from lions of our bar. Lawyers like Dutch Higgs, Paul Engstrand, Howard Wiener, Mike Neil, John Seitman, and Judges like Bill Yale, Judy Keep, Earl Gilliam, Bill Focht, and others. It felt to me at the time like sitting at the feet of oracles. They were, of course, just practicing attorneys in our town. But they both embodied and espoused a level of integrity and comity that, in my experience, is exceptional in our country. From them I discovered San Diego was blessed with more than beautiful weather and beaches; its legal community is truly a community — among the definitions of which is “a feeling of fellowship with others.” There has long been a fellowship among members of the bar here that is unusual in cities

SAN DIEGO LAWYER | July/August 2021

of its kind. Although a big city, San Diego had what former Superior Court Judge (and my former law partner) Bill Pate recently described to me as a “small-town feel.” That “feel” was a function not merely of its size but of its spirit — a combination of fellowship and fealty to principles of civility and integrity. Lawyers in our town who failed to practice with that spirit did not fare well. If a lawyer was uncooperative, uncivil, untrustworthy, or unprincipled, word spread fast. The biggest firms were 30 to 50 lawyers, and lawyers from each firm were regular adversaries and rigorous advocates, but respectful amigos. (The firm I started with, Jennings, Enstrand & Henrikson, merged with Higgs, Fletcher & Mack, and together held an annual picnic with Gray, Cary, Ames & Fry.) The tradition was trust. Most agreements were by handshake or phone call. No one sent confirming letters. As Judge Pate observed, “a reputation is hard to build and easy to destroy.” The local legal lions preached to me that practicing law was a privilege, a calling, and a responsibility, and those of us fortunate enough to be members of the bar should revere both the law and our fellow practitioners. A sentence from Game of Thrones author George R.R. Martin’s Ace in the Hole applied: “Politicians were mostly people who'd had too little morals and ethics to stay lawyers.” Judge Pate points out another element in the “smalltown feel” was practical experience and engagement. The biggest corporations that hired the big national firms were in Los Angeles or San Francisco. Often, he found, the partners in those blue chip, “white shoe” firms were not so experienced in the real world of courtroom work. They had tried maybe five cases to a jury, while local

Civility lawyers often had tried 150 and knew instinctively how to ask questions, listen to answers, and follow up. Their hands-on experience gave them not only expertise in their craft but ease in its execution. Passionate about the letter of the law and pursuit of justice for their clients, they nonetheless kept their practice in perspective. No case and no one was worth sacrificing principles. Distinguished Judge Lou Welsh (previously an esteemed local trial lawyer known for his unparalleled cross-examinations) wryly replied to an LA lawyer who was explaining how things were done in Los Angeles: “Counsel, we don’t care how you do it in Los Angeles.” San Diego has grown and changed since my early experiences with and conversations about our local ethos of civility and collegiality, but the framework our

forebears built remains. Judge Pate, long retired from the bench but a working mediator, says he still sees that inherent civility among San Diego lawyers practicing before him. Walter Scott said: “A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” If we know and hold close our local history of ethical civility, we can be the architects of a future not far afield from it. Wilson Adam Schooley is a reformed big firm partner and current appellate specialist practicing primarily civil rights and indigent criminal defense law; a professional actor; published author and photographer; Past Chair of the ABA Civil Rights and Social Justice Section; member of the ABA Journal Board of Editors; Delegate to the ABA House of Delegates; Presidential Appointee to the Coalition for Racial and Ethnic Justice; and member of the SDCBA Board of Directors.

IT’S ALL IN A NAME By George W. Brewster Jr. The bar service awards are an annual event, meant to inspire and reward good deeds, honest work, and civility in the practice of law and for our community. Unlike courthouses, associations, and Inns of Court, the bar awards are not named after specific individuals. That is not the case for other organizations. What follows is a short sampling of some of those awards: 1. Daniel T. Broderick III Award: This award by the Consumer Attorneys of San Diego is named for the 1987 SDCBA President, who along with his new wife, Linda, was shot to death by his ex-wife, Betty, in 1989. Broderick was well respected in the medical malpractice legal community. Each year since 1984, this award marking the highest standards of civility, integrity and professionalism is awarded to a local trial attorney during the Red Boudreau Trial Lawyers Dinner. Maurice “Red” Boudreau (1924-83) himself was a respected local trial lawyer, having served on the SDCBA Board, as well as being past president of Consumer Attorneys of San Diego and a longtime member of the San Diego Chapter of the American Board of Trial Advocates. He befriended a new local priest, Father Joe Carroll — and the RB dinner serves as a benefit for Father Joe’s Villages. 2. The Norby: Named for the late Judge Norbert Ehrenfreund, and given out by the local Superior Court judges to the family law lawyer of the year. Judge Ehrenfreund was not only a popular family law judge, but also an actor and author, and held a seat at the Nuremberg trials as a correspondent for The Stars and Stripes newspaper. He passed away in 2016 at the age of 95. The fourth winner of the Norby Award was Michael Shea, an attorney since 1972 and a certified family law specialist since 1980. He was well respected in the family

law field, and when he passed away in 2002, the San Diego Family Law Bar Association named an annual award after him, honoring attorneys who are mentors/teachers. 3. Bernard E. Witkin Awards: The San Diego Law Library Foundation recognizes lawyers and judges each year for civic leadership and excellence in education, public service, practice, and adjudication of the law by way of the Witkin Awards. Witkin was a fixture in legal circles, in particular for his legal treatises (Summary of California Law) and entertaining presentations. His treatises have been cited by the California Supreme Court and Courts of Appeal more than 20,000 times. Witkin himself attended the first Witkin Award ceremony held by the Foundation in 1995, before passing away at the end of that year. 4. Hon. David H. Bartick Award for Civility and Professionalism: The U.S. District Court for the Southern District of California honors the legacy of Magistrate Judge David H. Bartick, who passed away in 2018 after a mighty battle with brain cancer, at the age of 59. The court appointed Bartick, a prominent criminal defense attorney, to the bench in 2012. The award notes that Bartick was “a lawyer that made us proud of lawyers. And he was the kind of judge that all judges aspire to be.” SAN DIEGO LAWYER | July/August 2021

Civility

ATTORNEY CIVILITY DURING THE PANDEMIC From a Court Reporter’s Perspective By Brenda Peterson

n our little world of depositions, it is safe to say we all came to a screeching halt in March 2020. Discovery during COVID has required courage, retooling, and technological education as a means for truly “adapting and surviving.” Now, one year later, as George Harrison once sang, “here comes the sun!” As court reporters, we are singing the praises of Zoom and the praises of San Diego attorneys. Over the past few months, I have had over 25 conversations with San Diego court reporters inquiring how the attorneys of our close-knit legal community are doing with Zoom and civility during the pressures of COVID. Confirmed across the board was the high level of civility and understanding that our San Diego attorneys demonstrate on a daily basis.

stay connected and help us make a record upon which you can rely: Best Practice #1. If possible, keep your eye on your witness to be sure they are finished answering the question before posing your new question. Zoom requires a three-second pause between speakers or the testimony is unintelligible. Best Practice #2. To prevent losing connection, remove your exhibit as soon as you are finished showing it to the witness. Exhibits eat up bandwidth, and bandwidth problems are a primary cause of loss of connection. Additionally, virtual backdrops are cool, but they also eat up bandwidth, again, causing loss of connection.

In general, reporters understand attorneys have a lot on their plates. Pre-COVID, some attorneys, seemingly for strategic purposes, intentionally don the face and demeanor of a warrior. Then the pandemic happened, and the "warrior" adapted a more relaxed demeanor, one of cooperation, patience, and understanding. In particular, there was a wide berth given for glitches in technology.

Best Practice #3. We understand you may want to mute your audio, but don’t shut off your video. If your video is not on, we do not know if you have dropped off. The best way to be heard is to be seen.

The reporters recognized the attorneys had to learn a new language almost overnight, and have relied upon reporters to help them. The effect, one reporter commented, was "feeling like we were growing up together." And it brought us all closer to understanding what needs to be accomplished for a

Best Practice #5. Keep your reporter in your gallery box. If you don't see us, we might have dropped off. No reporter means no record.

successful deposition and making an accurate record for the sake of settling your case or going to trial. Over a recent Zoom happy hour with reporters, the following tips were suggested as ways to help you

SAN DIEGO LAWYER | July/August 2021

Best Practice #4. One person per computer. When multiple people share a computer, it is almost impossible to hear any single individual.

The sun is shining again and we are thrilled to be back to work!

Brenda S. Peterson, CSR #3651, (brenda@ petersonreporting.com) is the President and Founder of Peterson Reporting, Video & Litigation Services.

Civility

THE POWER OF THE WRITTEN WORD: CIVILITY IN LEGAL WRITING

By Anne Kammer

nce upon a time, an attorney decided it would be a good idea to write out the following email to opposing counsel and hit the “send” button:

writing practices, not only because courts expect or even require it, but because gentility elevates advocacy and discourteousness accomplishes nothing. As Justice Ruth Bader Ginsburg once explained to legal writing expert Bryan Garner,

You are a liar and a coward Chad. My motion will prove that. If you want to be a man, any time, any place. Otherwise we will allow Judge Womack to sort it out because you are gutless. The email wound up described in, and submitted as an exhibit to, a brief filed with the court (not surprisingly, in support of a motion for sanctions). That was just the beginning. The email was reproduced on a slide and used as a demonstrative exhibit years later during a presentation on civility by members of the American Board of Trial Advocates. The email appears in an appendix to an article in the Georgetown Journal of Legal Ethics. The email was reported on by multiple online media outlets, including Above the Law. The email has now been paraphrased almost a decade later in the print and online editions of this magazine. And that is how a decidedly egregious lapse in courtesy and basic human decency became forever enshrined on the internet. The end.

“[i]t isn’t necessary to say anything nasty about your adversary or to make deriding comments about the opposing brief. Those are just distractions. You should aim to persuade the judge by the power of your reasoning and not by denigrating the opposing side.” Likewise, civility in judicial writing imparts fairness and impartiality, and lends credibility to the justice system. By writing with respect and restraint, judges reinforce the value of civil expression and set the standard for attorneys who appear before them to emulate. Chief Justice Burger cautioned 50 years ago that “an undisciplined and unregulated profession will destroy itself, will fail in its mission, and will not restore public confidence in the profession.” This is no less true today and underscores the need for attorneys to take care with the written word. Civility in legal writing begets discipline in the profession itself. Members of the bar must strive for civility every time they type out

Or, rather, the beginning — of what will hopefully serve as a concise but compelling reminder of the power and longevity of the written word in the legal profession today. Thanks to the proliferation of legal research databases and electronic filing systems, lawyers should anticipate that any publicly filed document may persist online into perpetuity. This modern phenomenon necessitates that attorneys adhere faithfully to best practices in legal writing if they wish to preserve or improve their professional reputations. Civility should be foremost among these

an email, propound written discovery, or file a brief. Members of the bench should bear in mind the virtues of respect and grace every time they draft an opinion or issue a written order. Legal writing takes many forms; civility should be a hallmark of them all.

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

SAN DIEGO LAWYER | July/August 2021

Civility APPELLATE ADVENTURES IN VIRTUAL REALITY A Conversation with Justices Haller and Irion Justice Judith L. Haller

Justice Joan K. Irion

By Wilson Adam Schooley

his past year presented us with extraordinary challenges. Few sectors of society were spared. Some activities could be paused: sports, travel, dining out. But some vital functions, like the justice system, by their nature could not abate. Crimes and disputes occur and must be adjudicated. How has our justice system locally navigated the balance of persevering while protecting public health? I spoke with Justices Judy Haller and Joan Irion of the Fourth District Court of Appeal, Division One, to find out. The challenge was to continue hearing appeals without in-person appearances. Oral argument is vital to the appellate process. It can alter the outcome of an appeal. The court suddenly had to transition from in-person to virtual arguments. The last in-person argument was in March 2020. The court went virtual within 30 days, hearing its first virtual case in April. Technological glitches were inevitable. There were snafus and hurdles, such as switching video platforms. But those decreased each month. There were understandable human challenges. Lawyers, arguing from their home or office desks, sometimes slipped into informality or were distracted by their anxiety about the technology. As time passed, though, practitioners became more accustomed to the format, less anxious about technology and more adherent to formality. Overall the transition was surprisingly smooth. Court and counsel adapted with comparative speed and ease. The clerks check everyone in, ensure mics are on, videos functioning, and everyone is on mute until their case is called. If tech issues arise during argument, the court clerk intervenes. The process became fairly seamless. There were enough instances of counsel informality in clothing or location that Presiding Justice McConnell cautioned counsel about both. But neither Justice Haller nor Justice Irion could recall an inappropriate experience evocative of viral YouTube videos like unclothed family members streaking by or unseemly video links. Indeed, there has not been a single incidence of incivility or need for bailiff intervention. This is characteristic of our court. We are blessed with a collegial court and bar. The appellate bar is small and everyone knows one another well, so there is a disincentive to incivility.

There have even been benefits to the experience, so that post-pandemic, virtual argument may remain an option. It has always been true that lawyers unable to attend argument could appear by phone. Now, they may be able to appear virtually. Less expensive virtual arguments might make it easier for court and counsel to facilitate pro bono or pro per appearances. Compared to five years ago, there are many more pro per litigants in the court — as many as several per month. (For indigent or pro per litigant resources, see https://selfhelp. appellate.courts.ca.gov or www.appealhelp.org.) The process also makes oral argument more widely accessible — more people can listen to oral argument virtually than can fit in the court hearing room. Justice Haller prefers oral argument in person, with all parties in attendance. It is a more fully engaged experience for everyone. Many advocates agree. As any theater and film actor will affirm, there is an energy and connectivity in live “performances” that cannot be duplicated virtually. But both justices feel the virtual experience has not sacrificed much: communication between justices has not been impeded — they meet by video after each argument — nor has communication between court and counsel; the justices’ questions are a more accurate indicator of inclination than body language or eye contact. Overall, everyone has been getting better at the virtual process and adapting new strategies. More lawyers have added tech savvy to their skill sets. And the path to this success has been paved with humor and collegiality. In the first months of the pandemic, attorneys did not always realize when they were on video. During one oral argument, an attorney struggling with his connection said out loud: “Please God, let me connect.” Justice McConnell replied, “I’m not God, but the court can hear you just fine.”

Wilson Adam Schooley is a reformed big firm partner and current appellate specialist practicing primarily civil rights and indigent criminal defense law; a professional actor; published author and photographer; Past Chair of the ABA Civil Rights and Social Justice Section; member of the ABA Journal Board of Editors; Delegate to the ABA House of Delegates; Presidential Appointee to the Coalition for Racial and Ethnic Justice; and member of the SDCBA Board of Directors. SAN DIEGO LAWYER | July/August 2021

Civility

A SAN DIEGO LAWYER GOES TO WASHINGTON, D.C.   Q&A with Bob Gaglione, former Deputy Director at the U.S. Department of Labor How did you become a presidential appointee at the U.S. Department of Labor?

How did you enjoy the experience of living and working in Washington, D.C.?

I’ve known former Secretary of Labor Alex Acosta for over 20 years and shortly after he was confirmed by the United States Senate, I received an invitation to meet him for dinner in Los Angeles. At the time, Secretary Acosta was putting together his executive management team and he asked if I would like to come to work for the Department of Labor (DOL) in Washington, D.C. Serving the public in our nation’s capital was a lifelong dream of mine, so I said yes. After completing several applications and an FBI background check, I began the lengthy process of winding down my law practice in San Diego.  I flew back to Washington, D.C. for an interview with DOL and White House representatives, and another meeting with Secretary Acosta at his office in the Frances Perkins Building. After several additional interviews with Craig Leen, who was the Director of the Office of Federal Contract Compliance Programs (OFCCP), I was offered the position of Deputy Director of this federal civil rights enforcement agency. When I finally resolved all of my cases, I was appointed by the President and drove cross-country to start my new position in July 2019.

Overall, it was a great experience! After three decades in San Diego as a civil trial lawyer, I was warmly welcomed at OFCCP and enjoyed the challenges of the new position. I was pleasantly surprised at the civility and professionalism of my colleagues in the federal government. Unlike what we hear in the news, most people in the federal government get along very well.

SAN DIEGO LAWYER | July/August 2021

Washington, D.C. is a great city with inspiring architecture, interesting history, and a multitude of arts, cultural, and sports offerings to choose from. Even during the pandemic, there were always a lot of things to do in the DMV (District-Maryland-Virginia). The region has biking and hiking trails, Civil War battlefields, and national and state parks which were open while many other attractions were closed due to COVID-19.   What was your biggest takeaway from this experience? The overwhelming majority of people who work in the federal government are hard-working public

Civility

OFCCP Deputy Director Bob Gaglione in a meeting with Secretary of Labor Gene Scalia and other DOL colleagues in December 2020.

servants who get along well with their colleagues. Unfortunately, the media focuses on politicians and special interest groups who don’t get along in Washington, D.C., but in my experience, this is a relatively small percentage of the people in the nation’s capital. OFCCP enforces civil rights and equal employment opportunity laws, so there were some projects at the agency where we engaged in spirited debate, but it was always very civil and respectful. What was the most unexpected event that you experienced? Clearly, the COVID-19 pandemic in early 2020 was unexpected. By mid-March, OFCCP was the first agency at DOL to go to 100% telework. Former Director Craig Leen and I continued to lead a federal law enforcement agency with over 450 employees in 50 offices around the country through an unprecedented situation while we immediately shifted all business operations to telework. I am very proud of the fact that during this time, the agency had our second-best year in its 55-year history for the fiscal year ending September 30, 2020 (following our best year ever the preceding year). As an agency head, I received regular briefings throughout the pandemic and along with DOL leadership, assisted the White House Coronavirus Task Force in putting together its report for the President.

What were some of your most memorable moments in Washington, D.C.? Soon after I arrived in D.C. from San Diego, the Washington Mystics won the WNBA title, followed by the Washington Nationals winning the 2019 World Series. I really enjoyed being present for the celebrations of both championships — especially the parade for the Nationals down Pennsylvania Avenue to the Capitol.   Professionally, I attended events and meetings at the White House, Senate, House of Representatives, and U.S. Supreme Court. One of my duties as Deputy Director of OFCCP was to deliver speeches around the country in cities including Los Angeles, Miami, Milwaukee, New York, San Diego, and Washington, D.C. During the pandemic, I attended numerous conferences and made speeches by videoconference. Finally, it was a fascinating time to be in Washington, D.C. since there were numerous marches and protests in the nation’s capital during the year and a half I lived there. Photography is one of my hobbies and I took many pictures of historic events while I was there. The memories of my time in Washington, D.C. will last a lifetime and it was a great honor and privilege to serve my country at the U.S. Department of Labor.

SAN DIEGO LAWYER | July/August 2021

CALLING THE SHOTS: THE LAW OF MANDATORY COVID-19 VACCINATION IN THE CALIFORNIA WORKPLACE By Dan Eaton

California employer has a qualified right to require its employees to receive one of the three COVID-19 vaccines the federal Food and Drug Administration has authorized for emergency use. According to the California Department of Fair Employment and Housing (DFEH) and federal Equal Employment Opportunity Commission (EEOC) nonbinding guidance, workplace vaccination mandates are allowed as long as employees with medical conditions and disabilities that vaccination could complicate, and employees with bona fide religious objections, are properly accommodated. An employee’s generalized fear of a vaccine’s effects or effectiveness is not a legally protected justification for refusing an employer’s vaccination mandate. Some legal commentators have argued that the emergency use authorization — and not full approval — of the vaccines available as of this writing preclude employers and other institutions from mandating vaccination. That appears to be a minority view. The EEOC takes no position on the question as beyond its jurisdiction, the DFEH guidance implicitly rejects it, and the position is untested in court.

Requiring Proof of Vaccination An employer may not consider an employee “fully vaccinated” under California Division of Occupational Safety and Health Administration (CAL/OSHA) COVID-19 emergency temporary standards unless the employer has documentation that at least two weeks have passed since the employee received the required number of shots. The DFEH and EEOC both have said employers do not violate state or federal civil rights laws by requiring their employees to provide documentary proof of vaccination. Requesting proof of vaccination is neither a disability nor a genetic information-related inquiry. Proof of vaccination must be kept confidential and separate from an employee’s personnel file. Among other things, the Health Insurance Portability and Accountability Act (HIPAA) prohibits health care providers and the like from disclosing protected health

information, including vaccination status, without patient consent. The statute does not prevent an employer from requiring an employee to provide proof of vaccination.

Practical and Ethical Considerations The EEOC suggests that “[a]s a best practice, an employer introducing a COVID-19 vaccination policy and requiring documentation or other confirmation of vaccination should notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.” According to the agency, possible accommodations include requiring unvaccinated employees to “wear a face mask, work at a social distance from co-workers or non-employees, work a modified shift, get periodic tests for COVID-19, be given the opportunity to telework, or finally accept a reassignment.” The legal question of whether an employer may mandate vaccination is different from the ethical question of whether an employer should mandate vaccination. Neither the DFEH nor the EEOC takes a position on that question. Most employers seem to be relying for now on strong encouragement, sometimes including financial incentives, to have their workplaces as fully vaccinated as possible. The legal response to workplace issues raised by the pandemic has come almost entirely from executive action, not all of it legally binding. The coronavirus has moved faster than the speed of durable law, such as statutes and appellate rulings, to address it. The pandemic will cause legal aftershocks, including court rulings related to mandatory vaccination, long after it subsides.

Dan Eaton (eaton@scmv.com) is a partner with Seltzer Caplan McMahon Vitek. His practice focuses on defending and advising employers. Dan writes the biweekly Law at Work column in The San Diego Union-Tribune. He teaches business ethics and employment law courses at SDSU’s Fowler College of Business.

SAN DIEGO LAWYER | July/August 2021

REPRESENTATION, TRUST, AND INNOVATION THE EFFECT OF COVID-19 ON COMMUNITIES OF COLOR By Gayani Weerasinghe

OVID-19 has served as an eye-opening experience on how interconnected our world is, how income disparities and institutional racism disproportionately impact the health outcomes in communities of color, and the ever-growing importance of educating the public on the science of vaccine development. According to Centers for Disease Control and Prevention (CDC), in comparison to their white counterparts, Black and African American communities were 1.1 times more likely to develop COVID-19, 2.9 times more likely to be hospitalized, and 1.9 times more likely to die from the disease; Hispanic and Latino communities were twice as likely to develop COVID-19, 2.8 times more likely to be hospitalized, and 2.3 times more likely to die.1 Yet the vaccine hesitancy is dramatically higher in communities of color for a variety of reasons. 2 For example, we have a history of situations where underrepresented populations were targeted for unethical medical research,3 such as the Tuskegee syphilis experiment, where government medical workers in rural, segregated Alabama withheld from unsuspecting Black men infected with syphilis the treatment option of giving penicillin so doctors could track the disease and dissect their bodies when they died. 4 Yet, for us to overcome the COVID-19 spread, we need to vaccinate a critical mass of people; while this includes many complicated logistics, one of the challenges for the U.S. is establishing trust in the medicine with communities of color.

SAN DIEGO LAWYER | July/August 2021

At the forefront of the COVID-19 vaccine development is the scientific lead, Dr. Kizzmekia S. Corbett, who has been commended as one of the leaders in developing the mRNA Moderna Vaccine.5 Dr. Corbett is an African American immunologist at the National Institutes of Health who is now playing a critical role in the fight to gain trust of vaccine-hesitant communities as she spends time doing outreach to reduce skepticism over the safety of the vaccines.6 “Most Americans have never seen a Black woman standing in front of a national audience saying she is leading a team in the development of a vaccine [...] it makes a difference when you see someone looking like [her] involved in the development of this vaccine,” said Dr. Freeman A. Hrabowski, III, president of The University of Maryland, Baltimore County (UMBC), at a community forum, explaining the significance of seeing a Black scientist leading the charge for COVID-19 vaccinations.7 The lack of diversity in the STEM field8 represents a bigger problem if we cannot do better because, as Dr. Corbett put it, “It’s not about what you’re saying, it’s about how you relate to the people you are saying it to.”9 Advocating for diversity, equity, and inclusion at every level of our society, including places of innovation that are bringing forth valuable medicine, is critical to solving the existential crises we face as a society. Gayani Weerasinghe (gayani@lawgrw.com) is an Intellectual Property & Business Law Attorney for the Law Offices of Gayani R. Weerasinghe, helping small businesses and entrepreneurs with their legal needs. She is also the host of the YouTube channel Inventive Mind.

FOOTNOTES 1.

Hospitalization and Death by Race/Ethnicity, CDC (Updated May

Vaccine Hesitancy in Churches and on Twitter,” Nature, Feb. 11, 2021, https://www.nature.com/articles/d41586-021-00338-y.

You Should Know About the COVID-19 Vaccines, Urban Health

Perceptions, and Reasons for Not Vaccinating Among Groups

Institute Blog, Feb. 4, 2021, https://urbanhealth.jhu.edu/

Prioritized for Early Vaccination — United States, September

blog/home/community-forum-with-dr-kizzmekia-corbett-

and December 2020,” 70 MMWR 6, 217-222, https://www.cdc.

everything-you-should-know-about-the-covid-19-vaccines. 8.

Measuring Diversity in the Biotech Industry: Building

Darcell P. Scharff, et al., “More Than Tuskegee: Understanding

an Inclusive Workforce, Center for Talent Innovation in

Mistrust About Research Participation,” 21 J Health Care Poor

partnership with BIO, Jan. 2020, https://www.bio.org/here-

Underserved 3, 879-897 (Aug. 2010), https://www.ncbi.nlm.nih.

your-copy-bios-first-annual-report-diversity-and-inclusion.

gov/pmc/articles/PMC4354806/.

(Looking at sampling of 98 respondent companies that are members of BIO found only 4% of total employees were Black,

The U.S. Public Health Service Syphilis Study at Tuskegee, CDC,

5% were Hispanic/Latinx, 22% were Asian, 0% identified as

https://www.cdc.gov/tuskegee/timeline.htm (last checked June

Native American/Alaskan Native.)

7, 2021); “Trump Officials Oppose Funding Museum for Victims of Tuskegee Syphilis Study,” The Guardian, June 24, 2017, https://www.theguardian.com/us-news/2017/jun/24/tuskegeesyphilis-study-victims-trump-opposes-memorial. 5.

Community Forum With Dr. Kizzmekia Corbett: Everything

Kimberly H. Nguyen, et al., “COVID-19 Vaccination Intent,

gov/mmwr/volumes/70/wr/pdfs/mm7006e3-H.pdf. 3.

Nidhi Subbaraman, “This COVID-Vaccine Designer Is Tackling

data/investigations-discovery/hospitalization-death-by-raceethnicity.html. 2.

2, 2021), https://www.cdc.gov/coronavirus/2019-ncov/covid-

Miranda Bryant, “Fauci Praises African American Scientist at ‘Forefront’ of Creating COVID Vaccine,” The Guardian, Dec. 14, 2020, https://www.theguardian.com/world/2020/dec/14/ kizzmekia-corbett-african-american-scientist-covid-vaccine.

Subbaraman, supra note 6.

WELL, THAT’S SHOE BUSINESS By George W. Brewster Jr.

his little tale starts in the mid-1950s, in Coronado. At that time, my father was stationed at North Island as a Navy Pilot (June 1956 to October 1958).

Years later, my mother made an offhand remark about a shoe thief in Coronado when she and my dad were living there. She said while the men were at sea, the wives would talk about this rash of shoe thievery (left shoes taken during residential break-ins) and making sure their windows and doors were locked up tight. That is all she remembers. And that was all I knew, for many, many years. Then one day this year, while strolling Orange Avenue in Coronado, I ducked into a new doughnut shop (don’t judge me) and met Joe Ditler, a local author with a new book out on Coronado history (Coronado Confidential: It Can’t Happen Here, Amazon Books, 2019). As it happened, he knew about the shoe thief, and from his shared notes and my own toe-dipping into website research, I now have the rest of the story. The game’s afoot! It is not known why, really, but something possessed Wayne Snow McFarland to break into homes and steal women’s shoes — but only the left one. He did this over a 20-month period, mostly in 1956-57, and he was dubbed the Left Shoe Bandit. Detectives (or, yes, gumshoes) at the time were baffled. Plainclothes officers kept an eye on things (foot patrol), following women down city streets and on the ferry boats hoping to catch the bandit. It is said (as reported

SAN DIEGO LAWYER | July/August 2021

in the Union-Tribune) that twice, vigilantes beat up the undercover officers after mistakenly thinking the officers themselves were the bandit. Residents quoted at the time echo what my mom told me — the women of Coronado could not sleep until the bandit was caught. Police described him as “a phantom, psychopathic shoe fetishist” and noted that his taste in shoes included dress, sport, new, old, French, Cuban, leather ... well, you get the picture. On May 8, 1958, McFarland was eventually caught after entering the First Street home of a young woman and encountering her boyfriend. A chase ensued and McFarland was beaten and later found in bushes on J Avenue. Yes, the law finally caught up to the Left Shoe Bandit, and when asked what we would all ask, “Why?” McFarland responded he didn’t know, that he “didn’t get any thrill out of snatching those shoes, it was just something I had to do. I couldn’t stop myself.” A flat-footed confession to be sure. According to a story in the May 15, 1958 Coronado Eagle & Journal, McFarland’s father was baffled by the whole affair, suggesting his son needed “psychiatric help.” According to author Joe Ditler, McFarland, 23 when captured, was a lieutenant junior grade stationed at North Island Naval Air Station, flying S-2F antisubmarine tracker planes and AD Skyraider attack bombers. The police called him the “most elusive phantom who has operated in San Diego County.”

Investigator Tom Boggeln and Chief of Police Robert Manchester put in a lot of shoe leather on the case, and after McFarland was apprehended, they found 73 left shoes in his closet, in a trunk, and under his house. The second shoe dropped when they later found more left shoes under a false floorboard in the Bachelor Officers Quarters where he had once stayed. McFarland was not a tippy-toed thief — there were instances where he assaulted victims in their homes, hitting one with a bowling pin and another with the butt of a screwdriver. There were street encounters, too, where he knocked his victim to the ground and ran off with their left shoe. He also occasionally skipped the island to steal shoes from victims in downtown San Diego, Clairemont, and other locations. His foot path was extensive. After being caught he admitted to 22 assaults and 15 burglaries, although police suspected there were many more victims. As McFarland told one reporter, “All I know is that I had to get those shoes.” McFarland’s attorney, a Texas lawyer named Percy Foreman, had his client plead not guilty by

Judy Copeland

Merrianne Dean

reason of insanity. He was bound for trial, then sent to Patton State Hospital for evaluation; he was diagnosed as a sexual psychopath with a shoe fetish, possibly dating back to elementary school when he stole a pair of shoes from a teacher. But, said the doctor, McFarland knew right from wrong (and apparently right from left), and so was returned to San Diego. He pleaded guilty to one count of robbery and one count of burglary, fetching him 10 years (he got the boot). After a year of treatment, Judge Clarence Harden sided with DA Don Keller and denied McFarland’s request for probation. Off to prison. McFarland went back to his home state of Texas upon his release and died on February 24, 1999, at the age of 64. That is all I could find regarding the Left Shoe Bandit of Coronado. And as is almost always the case, the hunt for facts is the sole of historical research.

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.

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WHY I BELONG What fills your time outside of work?

JUDGE RANDA TRAPP (RET.) JAMS ADR Areas of practice: Mediation, Arbitration, Special Master

What initially inspired you to practice law? Growing up as an African American during the Civil Rights Movement inspired me to go into the legal profession. I benefited greatly from the sacrifices made by those in the Movement and those who supported the Movement — among them, the lawyers. I wanted to give back to the community that made it possible for me to attend college and eventually law school. Community service has been and continues to be a way that I pay it forward. Proudest career moment: The proudest moment of my career was the day I was appointed to the San Diego Superior Court. It was validation that I had gained the respect and confidence of the lawyers, judges, community members, and, of course, the Governor. Judicial officers are entrusted with the awesome power and responsibility to provide access to justice to all and it was a high honor for me to serve the community in that capacity.

JUST FOR SDCBA

MEMBERS:

Family and friends. I enjoy spending time with my family — especially my adorable 3-and-a-half-yearold grandson. He brings me great joy. I also enjoy spending time with friends, including those in my sorority, Alpha Kappa Alpha Sorority, Inc. AKA is a service organization committed to "service to all mankind.” A member for over 30 years, I have had the opportunity to work on many service projects benefiting San Diego and our region. “If I weren’t an attorney, I’d be ...” A pharmacist. I previously majored in pre-pharmacy and later switched to political science. What is your favorite movie, book, or TV show. Why? I love old movies. My favorite movie is It’s a Wonderful Life (1946). I love a happy ending where faith in humanity is restored. What one skill has helped you be successful as an attorney, and how could others develop that skill to better their practices? Everyone can learn the basic skills required to practice law. The key to becoming a successful attorney is to first define what “success” means to you. Once you know, you can develop and execute your plan. What would you most like to be known for? Always giving my best effort.

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WHAT DO YOU DO WHEN YOUR CLIENT IS ARRESTED By Michael L. Crowley

ou get that call in the middle of the night from one of your clients and you aren’t a criminal defense attorney. “I’ve been arrested and you are the only attorney I know, what do I do?” Unless you have the number of a trusted criminal defense attorney at your fingertips, you need to give some basic advice until the next business day.

won’t ever give a statement, it just means it needs to be done under controlled circumstances, i.e., with me present. The second thing you can do for the client is get him out on bail. You can call the San Diego Sheriff’s Department (619-974-2222) to find out what the bail is. You can either, at that point, call a bail bondsman or post the full amount of the bail with the Sheriff, saving your client any fees. One tip: you can negotiate the amount of fee the bondsman will charge, 10% is not set in stone. Make a few calls and use your negotiating skills to get the lowest rate. The next working day, call a criminal defense attorney or the San Diego County Bar’s Lawyer Referral Service at 619-231-8585.

First, if your client hasn’t already given a statement to the authorities, tell them to keep their mouth shut. We know that isn’t easy to do and law enforcement is well schooled in breaking down a person’s defenses. The client should be advised to say, “I hereby assert my 5th and 6th Amendment rights to remain silent and have counsel present at any and all of my interactions with the government.” If you are comfortable with it, ask to talk to someone trying to question your client and assert their rights on their behalf. To help diffuse the situation, I often say to law enforcement, this doesn’t necessarily mean we

Meet Your

Bar-ista

Michael L. Crowley, Crowley Law Group, APC (he/him) mlcrowley@CrowleyLawGroup.com.

HOLLY THOMAS SENIOR LRIS AND SCRA SPECIALIST

What are your main responsibilities at the Bar? I am a Senior Lawyer Referral and Information Service (LRIS) Specialist providing referrals and resources to the public for legal matters. I also handle the Servicemembers Civil Relief Act Program attorney assignments from the courts for servicemembers, working closely with the Navy for verification of service. I also handle application verification, and assignments of LRIS/Modest Means attorneys for the Modest Means Program (a program for family law matters for families of modest means with case matters being heard in a San Diego County court room at reduced rates). These are two great opportunities for attorneys seeking to be involved in the community and work that I am grateful to be part of.

What is your favorite part of your job? I truly love all that I do — I am excited to come to work each day. There are always new challenges and great rewards daily. I love working with everyone at the SDCBA — they are all my family.

How long have you been working at the Bar? Since November 2012.

What do you love about San Diego? You can go to the beach, the desert, and the mountains all in one day.

SAN DIEGO LAWYER | July/August 2021

What is your favorite movie and why? My favorite movie of all time is The Way We Were. What’s your favorite quote? “All our dreams can come true, if we have the courage to pursue them.” — Walt Disney

UNT Y BAR A SS AT

SAN D IE

ION

DIVERSITY PLEDGE SIGNATORY

EMBRACING OUR DIFFERENCES By David A. Niddrie

an Diego County is an extremely diverse community. Our diversity, however, is not represented at the management and leadership levels of many legal organizations. According to our bylaws, the mission of the San Diego County Bar Association (SDCBA) is to “serv[e] the public and the profession by enhancing the legal system and promoting justice, professional excellence, and respect for the law.” In working to fulfill our mission, the SDCBA has pledged to actively promote, practice, introduce, and inspire “diversity, equity, and inclusion” in the legal process, within San Diego’s professional community, and among the clients we serve. What does that mean? To answer that question, it may be best to start by defining our terms. Diversity is the presence of differences that may include race, gender, religion, sexual orientation, ethnicity, nationality, socioeconomic status, language, (dis)ability, age, religious commitment, or political perspective. Equity is promoting justice, impartiality, and fairness within the procedures, processes, and distribution of resources by institutions or systems. Inclusion is an outcome to ensure all individuals (because of their diversity) feel and/or actually are welcome to participate fully in the decision-making processes and development opportunities within an organization or group. In sum, the SDCBA has recognized that our profession, our legal community, and indeed, our entire justice system would benefit from the Bar’s recognition of an asset at our disposal (the diversity within our community), which would greatly “enhanc[e] the legal system and promot[e] justice, professional excellence, and respect for the law.” The SDCBA — both its individual members and as an

organization — has therefore committed to encouraging the use of our differences to improve the way we practice, process, decide, manage, view, and participate in the law. Below is a list of the firms and organizations that have already signed the SDCBA’s diversity pledge. All legal organizations with six or more attorneys are encouraged to join in the pledge by filling out and submitting the form at https://www.cognitoforms.com/ SanDiegoCountyBarAssociation/DiversityPledge. There are many reasons to embrace the “diversity, equity, and inclusion” within our professional community. Some are obvious. We all can see that social barriers have led to unfair conditions that skew distribution of society’s benefits and burdens. Inclusion breaks down those barriers by addressing our unknown biases. It is also clear that the legal profession can better serve the San Diego community if it reflects the diversity of those we represent. Less obvious are the benefits of “diversity, equity, and inclusion” to you and your organizations. I speak from experience when I say, diversity enhances insight, perspective, problem-solving, expression of ideas, communication of thought, reasonableness, and practicality. These are all tools we dearly need to practice law. Please join the pledge. In legal jargon, it is a “win-win.” And to those who have already taken and acted on the pledge, we offer our heartfelt thanks. Well done. David A. Niddrie has been a trial and certified appellate lawyer in Southern California since 1979. After serving five years as a research attorney with several state appellate and federal courts (including a stint as Staff Counsel for the Supreme Court of the United States), David practiced law at several large local firms and eventually founded Niddrie Addams Fuller Singh LLP, San Diego's first all-appellate law firm. David’s firm, Niddrie, Fuller, Adams and Singh, was one of the first signatories to the 2021 SDCBA Diversity Pledge.

2021 DIVERSITY PLEDGE SIGNATORIES As of July 19, 2021. See the current list at www.sdcba.org/diversity-pledge. Allen Matkins American Specialty Health Ames Karanjia LLP Antonyan Miranda, LLP Casa Cornelia Law Center Casey Gerry Schenk Francavilla Blatt & Penfield LLP Children’s Legal Services of San Diego City of National City, Office of the City Attorney Cozen O’Connor Dentons US LLP Devaney Pate Morris & Cameron Dinsmore & Shohl LLP

Duane Morris LLP Ferris & Britton, APC Foley & Lardner LLP Fragomen Haeggquist & Eck, LLP Higgs, Fletcher & Mack Horton, Oberrecht, & Kirkpatrick Hughes & Pizzuto, APC Jones Day Klinedinst PC Legal Aid Society of San Diego Littler Mendelson, P.C. Mandour & Associates, APC

Meyers Nave Mintz Mission Personal Injury Lawyers, P.C. MoginRubin LLP Niddrie Addams Fuller Singh LLP Noonan Lance Boyer & Banach Paul Plevin Pettit Kohn Ingrassia Lutz & Dolin PC Pillsbury Winthrop Shaw Pittman LLP Procopio, Cory, Hargreaves & Savitch LLP Rimon PC RJS Law San Diego Biz Law APC

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LAWYER REFERRAL LAW YER REFERRAL & INFORMATION INFORMATION SERVICE

Distinctions The following individuals in our community were recently honored for their achievements. If you achieve a professional success, feel welcome to submit it to bar@sdcba.org for inclusion in an upcoming issue of San Diego Lawyer.

Julie T. Houth was selected as a 2021 American Bar Association On the Rise – Top 40 Young Lawyer.

Johanna Schiavoni was appointed by San Diego Mayor Todd Gloria to serve as Chair of the Board of the San Diego County Regional Airport Authority, which oversees San Diego International Airport and addresses

Jeremy Evans was elected President of the California Lawyers Association for 2021-2023. He will be the third President since the organization was founded in 2018, following in the footsteps of SDCBA Past President and inaugural CLA President Heather Rosing (2018-2019).

the region’s long-term air transportation needs. Schiavoni has served on the Airport Authority’s Board since February 2018 when she was first nominated by then-Mayor Kevin Faulconer and twice unanimously confirmed by the San Diego City Council. On a national level, Schiavoni was appointed to serve a three-year term on the Executive Council of the National Conference

Judge Irma Gonzalez (Ret.), United States District Judge, is a recipient of the ABA Commission on Women in the Profession’s 2021 Margaret Brent Award.

of Bar Presidents, where she works to promote leadership development and collaboration among bar association leaders across the country.

Passings Judge Anthony Joseph served with distinction in the civil division of the Attorney General’s office before his appointment to the Superior Court. He worked to improve the court, and in particular to eliminate bias in the court. Tony was revered for his work in the family court and ended his judicial career as a distinguished independent calendar judge, before embarking on another career in private dispute resolution. Throughout his career he was active in the bar and served as a member of the Lawyers Club Advisory board, a sounding board for the president. Aside from his legal career, he was crazy about ocean swimming and a master swimmer. Those who knew him will treasure memories of this remarkable man. Judge Joseph passed away peacefully in his sleep on May 26, 2021 at the age of 84. He received his law degree from Boalt Hall at UC Berkeley Law School in 1961, and worked as a California AG before his appointment to the Superior Court in 1979. He retired from the bench in 1999, after which he worked for ADR Services, Inc. Long-time civil appellate practitioner Charles A. Bird passed away June 21, 2021. Charlie retired from practice in 2020, after a storied legal career in San Diego starting at Luce Forward in 1974, which merged into McKenna Long & Aldridge and ultimately Dentons. A few years into his real estate practice at Luce, Charlie took a sabbatical to Alaska and, upon his return to San Diego, he was determined to focus on appellate practice. Charlie became a renowned civil appellate litigator with a national reputation as a highly ethical and effective lawyer. He received numerous awards, including the Witkin Award for Excellence in the Practice of Law by the San Diego Law Library Foundation in 2016, and the California Lawyer Attorney of the Year for appellate practice in 2004. Charlie also was a devoted community servant, as an early member and significant champion of Lawyers Club of San Diego, volunteering in roles with the JNE Commission, San Diego Volunteer Lawyer Program, the San Diego County Bar Association and its Appellate Practice Section, and serving numerous appellate-focused organizations at the state and national level. Though his practice was in civil appellate law, Charlie was a dear friend to the criminal defense community, having served for decades on the boards of Appellate Defenders, Inc.; Federal Defenders of San Diego; and the Habeas Corpus Resource Center. Those who worked with or opposed Charlie knew him as a zealous advocate in the best sense of the word. Because of his towering intellect and his dry sense of humor, he also could be perceived as intimidating to those who did not know him well. Yet, Charlie’s lasting legacy will be as a consummate mentor and guide, and as a person who sought to elevate the community and appellate advocacy to the highest levels. SAN DIEGO LAWYER | July/August 2021

BE SEEN by thousands of San Diego lawyers, judges, and legal community members who receive the award-winning bimonthly magazine you’re reading right now. THE VALUE OF CULTIVATING MENTOR-MENTEE RELATIONSHIPS By Gayani R. Weerasinghe

“Mentorship and sponsorship are vital to a successful career.

To find such mentors, Brian Sun, the General Counsel

Mentors and sponsors have traveled the road to success

for Sorrento Therapeutics, recommends community

and can provide valuable insight — ‘Don’t make the same

involvement. “Joining an affinity group allows you to build

mistakes I did.’ Having said that, we all make mistakes and a

your network and seed opportunities. You gain access to a

mentor or sponsor can be there to help you recover.”

pool of mentors who are committed to providing guidance

— Hon. Randa Trapp, San Diego Superior Court

mentor is a trusted advisor that is willing to give you advice and insights as to how to navigate

and fellowship that will open many doors for you. Planting these seeds means developing genuine relationships without any expectation other than to grow and learn — and this will lead to opportunities that surprise and reward you throughout your career,” says Sun.

a situation or achieve a goal. A sponsor, on the

other hand, is someone who champions you in promotions

Whether it is a formal mentor-mentee matchup by a

and advancements within a profession, organization, or

professional group or an informal relationship through

workplace. While this discussion can apply to both mentors

networking and your community involvement, make the time

and sponsors, as they both play an important role in

to get to know your mentor, their path to where they are,

your success, this article focuses more on cultivating the

and their professional and volunteer work. Building mentor-

relationships with your mentors and why it matters for your

mentee relationships organically is important, as you would

long-term success.

want an authentic relationship and a genuine connection with your mentor.

Everyone needs a mentor! “No matter the level or status of your professional standing, it is certain that what got you here, won’t get you there. So, wherever you want to get to next, it is critical to your success that you have a brain trust — mentors. Mentors to help you chart your path and overcome the terrain. No one successful goes at it alone,” says India Jewell, Legal Head of Consumer Products at Sony Electronics. Mentors can be found in a variety of settings and you do not need to limit yourself to one. I would recommend having multiple mentors to help you in different areas of your profession. An added benefit of multiple mentors is that you

Remember that mentors do not always need to be someone older. They can be a colleague in your own cohort or even someone younger. For example, one of my mentors is my younger sister, Bhashini Weerasinghe, who has been practicing law for over 10 years and had her own practice for over seven years. If they have more experience or have a skill set that you would like to grow, do not be shy. Reach out and ask for help. Lastly, I encourage you to volunteer to be a mentor to someone else who is junior to you. This is a great way to not only give back, but gain another perspective on mentorship

can get different perspectives, more targeted advice, and

and how to be a better mentee to your mentors. As Maya

prevent creating a burden on your mentor’s schedule.

Angelou said, “[W]hen you learn, teach. When you get, give.”

As Gayle Blatt, a Partner at Casey Gerry says, “It’s important for young lawyers to seek out mentors. Experience is the best teacher, and the right mentors can help you learn from their mistakes while providing encouragement as you chart your own path.”

Gayani R. Weerasinghe, Esq., M.A., (gayani@lawgrw.com) is an Intellectual Property and Business Law attorney with her own practice. She is also the host of the YouTube Channel, Inventive Mind.

SAN DIEGO LAWYER

ETHICS by Edward McIntyre

FAMILY TIES THAT BIND Cartoon by George W. Brewster Jr.

Macbeth opened the Zoom meeting. “Good morning Sarah, Duncan. Jeff asked to join us. Anyone mind?”

might not be to a 19-year-old, about to sue her mother. I’d

A joint, “Not at all.” Clicks, another box opens, a face appears. “Good morning, Jeff. Meet Sarah and Duncan.” After greetings, Macbeth spoke. “Jeff, you had questions?” “Yes. I’ll be a witness in a case. You’ve done it often as an

think about revising the informed consent.” “OK, if you think —”

Another disqualified a firm to prevent prejudice from the

“Sixteen years. The bullying started when Maddie was 13.

deposition questions based on the email and quoted it in

I moved out after two years. Took her with me. Divorce was final a year later. Why?”

disqualify you from representing your daughter at all. Not just at trial.”

“Jeff, not saying it’ll happen. But think it through. You want to help your daughter. We understand.” Sarah spoke. “Maybe the best help would be to support her through a difficult case. Be the best witness you can. Let

Brace yourself for the argument you could exploit that

someone not so involved be her advocate. A partner, perhaps." “A lot to think about. Thanks. If that’s what I do, may I come

“How?”

back? Talk about how to be an effective witness?”

“Well, you’ve certainly gotten confidential information

Macbeth smiled. “We’d welcome it.”

Preparing your daughter, other witnesses, for deposition.

disqualify you from testifying and being the advocate.

inside track on the defense case.”

“One court disqualified a lawyer who’d gotten the secrets of

daughter, Maddie.”

“I don’t see it.”

maintain the integrity of the judicial process.

“Testimony of substance? Not an uncontested issue or

“You’ll be a key witness? On contested issues?

young teen, Maddie announced she was gay. My former

(2020) 55 Cal.App.5th 573.

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

“All of that.”

harassed and bullied her. Mercilessly. Poor kid! I couldn’t

“One purpose of the advocate-witness rule is to prevent fact

make it stop. Killed the marriage. I got full custody. Legal and

finder confusion. Is the advocate-witness’s statement to a

physical. Now she’s 19. Recovered, but still traumatized.

fact finder proof or argument? Same person. Different roles.”

I’ll be a key witness.”

“But —”

Sarah interrupted, “I’m so sorry. For her. For you.”

“The rule tries to avoid tying a lawyer’s persuasiveness as

Macbeth spoke. “Before we discuss being a witness, should

an advocate to his credibility as witness. In short, it could

we focus on rule 3.7?”

harm an opposing party or judicial integrity if a lawyer

“The lawyer-witness rule?”

and then argues to a jury why his testimony is more

testifies on a key issue — with conflicting testimony —

“Precisely. Since your testimony will be substantive, it applies.”

Kathryn Karcher will hit your client’s appeal out of the park. Hire her, before the other side does.

credible than the other testimony.” “You mean I could be knocked out at trial?”

“Already looked at it. I’ve got Maddie’s informed written consent. Both as her lawyer and a witness at trial. Like rule 3.7(a)(3) requires.”

“Could. Appellate courts have allowed it. Abuse of discretion is not a difficult standard. You might want to mention it to your daughter. In a revised informed consent.

“As part of that informed consent, you advised her that if your credibility as a witness takes a hit — on cross-examination, for example — it might affect your credibility as her advocate

So she’s not surprised.” “Guess I should. May I see the cases?” Sarah interjected. “I’ll send you the most recent.”

arguing to a jury or judge?”

SAN DIEGO LAWYER

an adverse party. It implicated the lawyer’s ethical duty to

With conflicting testimony?”

“Oh, it will be substantive, all right. Suing my ex-wife. As a

Editor’s Note: The recent case Sarah sent Jeff was Doe v. Yim

“That could disqualify me?”

from prejudice.”

about fees?”

“Wow, I never thought —”

information in suing her.”

Preparing deposition outlines. Think about it. You’d have an

To protect the trier of fact from being misled. Your wife

depositions and interrogatory responses. A court could

“During marriage you learned a lot from and about your

“About court discretion?” “Yes. Even with your daughter’s consent, a court could

firm’s exploitation of privileged email. It had prepared

former spouse that’s confidential. Because of the marriage.

you could use, for example, drafting discovery requests.

“You’ll be an expert?”

decide disqualification here is a necessary prophylactic.”

“Be aware there may be a confidentiality issue. Could

“Did you consider the rule’s Comment 3?”

expert. Thought I’d pick your brain. Get some tips.”

“No. I’m the trial lawyer. Also a witness. Representing my

TO ADVERTISE

“You might consider making it explicit. What’s obvious to us

January/February 2021

Macbeth asked, “How long were you married?”

“What?!” “She’s a smart kid. I’m sure she understands. Isn’t it obvious?”

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

January/February 2021

visit www.sdcba.org/advertise-sdlawyer

PHOTO GALLERY

Distinguished Lawyer Memorial The San Diego County Bar Foundation hosted its annual reception to honor the 2021 Distinguished Lawyer Memorial inductees. The individuals honored demonstrated superior legal skills, high ethical standards, and outstanding dedication to the welfare of the community and the maintenance and support of the major objectives of the SDCBF. Alreen Haeggquist, SDCBF President

Bonnie Dumanis speaking on behalf of Gerald “Jerry” Blank

Chief Judge Dana M. Sabraw speaking on behalf of Judge William B. Enright

David Casey speaking on behalf of Brian D. Monaghan

Chuck Sevilla speaking on behalf of John J. Cleary

Kyle Hargrave speaking on behalf of Anthony M. Medina

Erika Hiramatsu speaking on behalf of Peter Quon Jr.

State of the Court Address: San Diego Superior Court Presiding Judge Lorna A. Alksne of the San Diego Superior Court provided an update on our local trial courts and ongoing operations in light of the state's reopening guidelines, effective June 15, 2021.

Renée N.G. Stackhouse, SDCBA President

Hon. Lorna A. Alksne, Presiding Judge, San Diego Superior Court

SAN DIEGO LAWYER | July/August 2021

2021

THANK YOU 100 PERCENT CLUB 2021 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 2021. Your commitment to the San Diego legal community is greatly appreciated.

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SAN DIEGO LAWYER | July/August 2021

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