San Diego Lawyer March/April 2022 by San Diego County Bar Association

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THE ‘SHADOW PANDEMIC’ OF DOMESTIC VIOLENCE by Carrie Holmes

SUCCESS STORY How a Lawyer Referral for a Workers’ Compensation Case Resulted in an Estimated $3.5 Million Settlement by Elizabeth P. Swiller

WHY I BELONG Get to Know SDCBA Member Pamela J. Brown-McGill

WHAT TO DO WHEN YOUR ELECTRONIC DATA HAS BEEN HACKED How to Respond to a Data Breach by Edward McIntyre

MEET YOUR BAR-ISTA Sarah Harris Director of Programs & Events

SAN DIEGO COUNTY BAR FOUNDATION AWARDS CLOSE TO $400,000 TO 26 LOCAL NONPROFITS

DISTINCTIONS Community members honored and remembered for their achievements

THE NEW WAVE OF STORMWATER LAWSUITS by Jeff Caufield

BY YOUR LEAVE by George W. Brewster Jr.

MENTAL HEALTH TREATMENT IN THE SAN DIEGO SUPERIOR COURT CRIMINAL JUSTICE SYSTEM by Dana Grimes and Jay Temple

NEW CASE LAW GUIDES PROSECUTORS IN PRE-TRIAL APPROACH TO BAIL California Supreme Court’s Humphrey Decision Changes Pre-Trial Detention Procedures by Renee Rupp

ALTERNATIVES TO IN-OFFICE THERAPY Your Next Therapy Tool Could Be On Your Mobile Phone by Ron Marcus

TAKE CARE OF YOURSELF by Hon. Vic Bianchini (Ret.)

PRESIDENT’S COLUMN by David Majchrzak

LAW SCHOOL COLUMN by Kelli A. Lam

ETHICS Lawyers Are Human Law License Isn’t a Shield Against Personal Problems by Edward McIntyre

TECHNOLOGY Tech Tips and Tidbits by Bill Kammer

BUSINESS OF LAW How One Law Firm Turned a COVID-19 Necessity Into a Lawyer/Staff Benefit by Edward McIntyre

WHY I LAWYER by Frederick Schenk

Priorities & BALANCE Priorities & Balance

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STARTING A MINDFULNESS PRACTICE TO FIT YOUR LIFESTYLE by Gayani R. Weerasinghe

PETS AND ATTORNEYS: A PARTNERSHIP IN WELLNESS by Anne Kammer

THE CASE FOR TAKING A BREAK by Benjamin C. Bunn

SAN DIEGO LAWYER | March/April 2022 5

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SAN DIEGO LAWYER EDITORIAL BOARD

Issue 2, March/April 2022

Co-Editors George W. Brewster Jr.

Gayani R. Weerasinghe

Editorial Board Issue no. 2. San Diego Lawyer® (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is (619) 231-0781. The price of an annual subscription to members of the San Diego County Bar Association is included in their dues. Annual subscriptions to all others: $50. Single-copy price: $10.

Stephanie Ahlstrom Eric Alizade Shelley Carder Sara Gold Wendy House Julie Houth

SAN DIEGO COUNTY BAR ASSOCIATION

Periodicals postage paid at San Diego, CA and additional mailing

Board of Directors

offices. POSTMASTER: Send address changes to San Diego Lawyer,

President David Majchrzak

401 West A Street, Suite 1100, San Diego, CA 92101. Copyright ©2022 by the San Diego County Bar Association. All rights r eserved. Opinions expressed in San Diego Lawyer are those of the authors only and are not opinions of the SDCBA or the San Diego Lawyer Editorial Board. Interested contributors may submit article ideas to the editors at www.sdcba.org/SDLidea. Unsolicited articles will not be printed in San Diego Lawyer. San Diego Lawyer reserves the right to edit all submissions, contributed articles and photographs at its

Anne Kammer Edward McIntyre Michael Olinik Stephanie Sandler Wilson Schooley Andrea Warren

President-Elect A. Melissa Johnson Immediate Past President Renée N.G. Stackhouse Secretary Stacey A. Kartchner Treasurer Michelle A. Gastil

sole discretion.

Vice Presidents Warren Den Wilson A. Schooley L. Marcel Stewart Kimberly Swierenga Directors Leslie Abrigo Tatiana Kline Brenda Lopez Angela Medrano Spencer Scott Robert M. Shaughnessy Fanny Yu New Lawyer Division Chair Jake Zindulka

SDCBA Staff — San Diego Lawyer 401 West A Street, Suite 1100, San Diego, CA 92101 Phone (619) 231-0781 • bar@sdcba.org • www.sdcba.org

Executive Director Jill Epstein Director of Marketing & Outreach Ron Marcus

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ADVERTISERS INDEX 4xForensic . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 ADR Services, Inc. . . . . . . . . . . . . . . . . . . . . . . 40 Alternative Resolution Centers . . . . . . . . . . . . . . 9 CaseyGerry . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Farmers Insurance Exchange Notice of Service . . . 19 JAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Judicate West . . . . . . . . . . . . . . . . . . . . . . . . . 36 LawPay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Lawyer Referral & Information Service . . . . . . . . 6 Mercer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Monty A. McIntyre, Esq. . . . . . . . . . . . . . . . . . . . 35 San Diego County Bar Foundation . . . . . . . . . . . . 32 Singleton Schreiber, LLP . . . . . . . . . . . . . . . . . . 10 Todd Bulich Real Estate Company, Inc. . . . . . . . . . 48 West Coast Resolution Group. . . . . . . . . . . . . . . . 30

SAN DIEGO LAWYER | March/April 2022 7

PRESIDENT’S COLUMN BY DAVID MAJCHRZAK

hose who read my presidential messages in This Week at the Bar have probably figured out that I have a tendency to begin much of what I write with an anecdote. But one of the truths about what we do is that the best stories from work are often those we can never share outside our offices. Such is the case with most stories I have about lawyers with wellness issues. For that is a recurring subject that I have seen in relation to ethics and disciplinary matters. In recent years, there has undeniably been an increase in conversations within our community about two subjects: lawyer wellness, and diversity, equity, and inclusion. Of course, the latter is an element of the former, though it is certainly not the only one. Others that can negatively impact us include various vices — many of which risk addiction — emotionally traumatic events, or even the failure to take care of our own basic needs. And the various facets of wellness each impact us in important ways. As a result of this, when I am discussing risk management for lawyers, we often wind up talking about what they are doing to take care of themselves. The reason for this is illustrated by numerous metaphors. You cannot pour from an empty cup. Charity starts at home. If the cabin loses pressure, oxygen masks will drop from the overhead area; place the mask over your own mouth and nose before assisting others. Of course, if you wait for an emergency to start taking care of your wellness, it is probably too late. For that reason, one of my routine questions is asking other lawyers when the last time they took a vacation was and when the next one is planned for. It is important to understand that our needs as people include having distinct breaks from others placing demands on our time. And that is something that is rarely built into a career.

8 SAN DIEGO LAWYER | March/April 2022

For example, it is still fairly unusual to find places that offer sabbaticals. Depending on what study you look at, you will see numbers reflecting that between 1 out of 5 to 1 out of 6 American companies offer a sabbatical — and, having completed a study on the subject, I suspect that they are significantly less common in law firms. But such a benefit can be a much needed career-saving break, especially when considering that the average American will work for over 40 years. Of course, it would likewise be unhealthy to wait to take time away only when eligible for a sabbatical. Simply because the working life of a lawyer seldom involves significant physical labor does not mean that practitioners are somehow less likely to experience burnout. So, having meaningful breaks with a reasonably routine frequency is important. Just as important, however, is to have meaningful work. Individuals’ sense of self can often be substantially colored when they have feelings of purpose as they begin their work and accomplishment when they finish it. It motivates, adds enjoyment to work, and resultantly increases the likelihood of extended careers.

“It is important to understand that our needs as people include having distinct breaks from others placing demands on our time. And that is something that is rarely built into a career.”

Finally, one of the questions I have been asked more

body are operating on all cylinders, it is easy to focus

recently involves work-life balance. Outside of the

on the task at hand and to give it our full attention.

services I provide to my clients, I volunteer time to

When you pull those things out of place, it is easy to

various local, state, and national organizations, and have

become distracted, perhaps focusing more on getting

both family activities and personal interests — including

to being done than on the doing itself. And in those

needed relaxation time — that I pursue. There is no

latter situations, there is an increased risk for error or,

magic answer to this. I do not have a flux capacitor that

at the very least, lower quality work.

makes time travel possible. I just tend to lean toward the advice provided by Ellen Kullman, the Chief Executive

You won’t find something in the Rules of Professional

Officer of Carbon and former Chair and Chief Executive

Conduct or the State Bar Act that expressly requires you

Officer of E. I. du Pont de Nemours and Company.

to take care of yourself. But if you don’t, somebody will

Her suggestion was, “It’s not about having a specific set

need to. Your competency is dependent on you having

time; both personal and professional lives are 24/7.

“the mental, emotional, and physical ability reasonably

It’s simply, more about making the right allocation to

necessary” for the performance of the legal services

each one and recognizing that it’s going to be different

you are providing. So, take to heart the discussions

every single day.” In that light, my to do lists involve

you hear on this topic. Practicing law should be fun.

not just professional work, but other things that I am

Place yourself in the best position to enjoy it.

interested in spending my time doing. I am pretty confident that just about any person who has worked for a significant period can explain how wellness translates to job performance. When we feel good, when we enjoy our work, and when our mind and

David Majchrzak (dmajchrzak@klinedinstlaw.com) is the Deputy General Counsel and a Shareholder with Klinedinst PC. His practice is devoted to serving lawyers and judges in ethics, discipline, and litigation matters. He is the 2022 SDCBA President.

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LAW SCHOOL COLUMN by Kelli A. Lam

A NURSE GOES TO LAW SCHOOL DURING A PANDEMIC

y curiosity about law began while studying nursing. I attended a nurse attorney’s talk and became infatuated with integrating law and nursing. As my education as a registered nurse progressed, I learned that, like the legal system, medicine has exceptions to the exceptions, some de jure and some de facto. Medical professionals cringe at the thought that their livelihood could be placed in the hands of legal counsel who may not completely understand the decisions one must make when a patient’s life is imperiled. I had the privilege to act as a nurse union representative, helping nurses obligated to answer for sometimes deadly patient outcomes. If not for my experience as a highly educated registered nurse, my knowledge of nursing culture, and my ability to conduct a valid root cause analysis, I would not have been able to reveal the flaws in facility rules and policies that helped decision-makers reach more informed outcomes. I did something right. Many nurses asked for my assistance in dealing with their attorneys. My path was sealed: law school was my next step.

The transition from registered nurse to law student in the midst of a pandemic was an unparalleled one. My experience in intensive care and emergency medicine prepared me to adapt to stressful situations. Just as a great team of co-workers softened the blows of an unpredictable and tumultuous nursing

shift, my colleagues, peers, and the staff at Thomas Jefferson School of Law supported me. Law school is constantly revealing to me that nurses and lawyers need many of the same skills. For example, lawyers must discover their clients’ needs and develop strategies to advance them in an often-unreceptive legal system. Nurses must similarly represent their patients. I recall a post-catheterization patient who arrived in my care alert and with normal vitals. However, the patient was cold and clammy. The surgeon, with annoyance in his voice, assured me that this was part of the normal recovery process. I nonetheless advised my team to prepare for a code. When the patient’s heart stopped beating, we were ready. In nursing, critical thinking under stress while applying theories, forming hypotheses, and following rules is vital. So too is building relationships with superiors, subordinates, and colleagues. The skills I needed to help that patient about to code are, in many ways, the same ones I’m now honing in law school. Kelli Lam, a 2L at Thomas Jefferson School of Law, plans to practice healthcare law. Prior to law school, she worked in intensive care and emergency departments as a licensed, registered nurse and as a police dispatcher. She also has experience interpreting health laws and contracts for a major insurance company.

We want to hear from you. San Diego Lawyer welcomes articles written by practicing attorneys and industry experts on various law-related topics. Interested contributors can view guidelines and submit their ideas using the form at www.sdcba.org/SDLidea. We also highly encourage the participation of diverse authors, including (but not limited to): people who have less than 5 years of legal practice, women, people of color, people with disabilities, and people who identify as LGBTQ+. Please read posted submission criteria carefully. San Diego Lawyer does not accept unsolicited article submissions.

SAN DIEGO LAWYER | March/April 2022 11

ETHICS by Edward McIntyre

LAWYERS ARE HUMAN Law License Isn’t a Shield Against Personal Problems

Illustration by George W. Brewster Jr.

Sara and Duncan joined Macbeth and his guest. “Meet Dave Lupica, a friend and managing partner of a fine firm.” Macbeth turned to his guest. “Dave, your text said something serious has come up. How can we help?” “The State Bar told a young lawyer in our firm he’s under investigation. A really nice kid. This could kill his career. He’s made some mistakes. But we want to help him.” “How far along is the investigation?”

“First, good news. The State Bar recognizes misconduct can come from personal problems. Substance abuse — drugs, alcohol. Mental health issues. Facing year three of COVID isn’t helping.” “Missing court dates, DUIs. As we see it, he’s got an alcohol problem.” “Likely. If that’s the case, the State Bar has an Alternative Discipline Program. They call it ADP. It’s rigorous. Designed to protect the public, but also to help rehabilitate impaired lawyers. It can salvage careers.”

“He got a draft Notice of Disciplinary Charges and a letter telling him about an Early Neutral Evaluation Conference before a State Bar judge. Quick research tells me it’s a prefiling settlement conference.”

“How does ADP work?”

“Precisely. The nature of the charges?”

“Timing’s good. At the ENEC —”

“A federal judge in LA sanctioned him — $5,000. He repeatedly missed court-set hearing dates. Paid it himself. We didn’t know about it. He didn’t report it to the State Bar. But the judge did. Also, he’s had a second DUI. Too embarrassed to tell us.”

“ENEC?”

“How badly does your firm want to help?” “Partners all agree we’ll do whatever it takes to save his career. We want to address his personal issues as well.” “Congratulations. Your partners made the right choice.” “What can we do?”

12 SAN DIEGO LAWYER | March/April 2022

“Duncan’s represented lawyers in the program. He can describe it.”

“Sorry. Early Neutral Evaluation Conference. His lawyer can ask the judge to refer him to a Program judge — another Hearing Department judge. If the court makes the referral, that judge will determine if he’s eligible for ADP.” “Please, tell me more.” “The Program judge has discretion to accept him for ADP. There are a few steps. First, he has to be accepted into the Lawyer Assistance Program. It’s separate. Then the Program judge must approve a stipulation

between the lawyer and the State Bar admitting the lawyer’s misconduct. The lawyer also has to present evidence that his problem — perhaps alcohol here — contributed to his misconduct.” Sara interrupted. “The Lawyer Assistance Program, or ‘LAP,’ is uncompromising. It can also be expensive. Typically requires weekly self-help meetings — AA or NA. Weekly LAP group meetings. No drugs

“The judge can make written findings that inactive enrollment isn’t necessary to protect the public or clients. But it’s within the judge’s discretion.” “Other adverse consequences?” “When he’s accepted into ADP, the stipulation of his misconduct gets filed and becomes public.” “How long does all this take?”

or alcohol with regular testing. A case manager.” “How long does this go on?” “Generally, three years. If the lawyer fails LAP, the court

“Typically, the minimum’s three years. The judge may shorten it to as few as 18 months. But he can’t complete ADT unless LAP certifies he’s been substance-free for at least a year.”

will terminate his ADP and the lawyer faces discipline.” “That’s helpful. What else does ADP require?” Duncan continued. “Once he’s in LAP, he and the State Bar brief the highest level of discipline he’ll face if he doesn’t complete ADP. Could be suspension

Macbeth commented: “Dave, this is where you and your partners will face burdens. You’ll likely help him financially with the costs of the program. That’s fine. But if he’s inactive, he won’t be able to practice. Could be a law clerk. A paralegal, maybe. You may be carrying him for quite a while.”

or disbarment. They also brief the lowest level. If he successfully completes the program, possibly dismissal of all charges. The Program judge then makes recommendations, considering the misconduct. Also, the harm clients suffered.” “Any bad ramifications for the lawyer?” “Assume he’s accepted into ADP. If he completes the

“I understand. But if he’s willing, it’s an opportunity to save a career. Also for him to come to grips with a problem.” “Great approach. Let’s hope he sees it that way.” “I want him to take a chance on himself. We’ll stand behind him. One way or the other. Thanks for the help.”

program and the Program judge’s recommended disposition includes an actual suspension of at least 90 days, the judge must place him on inactive

Editor’s Note: ADP requirements are in the State Bar’s Rules of Procedure, at pp. 172–173, rules 4401-4407.

status immediately.” “Ouch.”

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

GOT A LEGAL ETHICS QUESTION? CALL THE LEGAL ETHICS HOTLINE: (619) 231-0781 x4145 The SDCBA Legal Ethics committee is here to help! SDCBA members can call our Legal Ethics Hotline* for guidance and perspective on a variety of ethical considerations in the practice of law. Your call will be taken by a seasoned attorney with significant experience in legal ethics issues. Simply call the hotline and leave a message with your phone number, your question, and any context you can provide that can help our attorneys research your question before responding. One of our Legal Ethics committee members will call you back to discuss your question with you. *Please read the disclosure at https://www.sdcba.org/docDownload/47105 before calling. SAN DIEGO LAWYER | March/April 2022 13

TECHNOLOGY by Bill Kammer

TECH TIPS AND TIDBITS Half of All Emails Are Spam

eDiscovery Proportionality

Security firm Kaspersky reported that 2021 email was approximately 46% spam. The majority came from machines in Russia, ironically followed by Germany. Kaspersky’s annual spam and phishing report is available at https://securelist.com/spamand-phishing-in-2021/105713/.

Amendments to the federal rules in 2015 emphasized the importance of proportionality in the assessment of efforts to fulfill the ethical obligations inherent in responding to eDiscovery. The same concept exists in California Code of Civil Procedure § 2031.060(f)(4). The federal changes, though, have resulted in renewed attention to the elements and scope of eDiscovery agreements and protocols. Determining exactly how these rules can apply to various situations has been difficult and subject to widely varying interpretations. Now the law school at George Washington University has taken the lead to produce new guidelines to assist those decisions. Entitled “Discovery Personality Model: A New Framework”, it can be found at https:// www.law.gwu.edu/sites/g/files/zaxdzs2351/f/ downloads/New_Framework_January_7_2022_ Draft_2.pdf. On the law school’s website, you can also find conference materials and links to various educational resources, including discussions of the benefits and burdens involved in making proportionality decisions: https://www.law.gwu. edu/gw-discovery-proportionality-benefit-burdenmodel-bench-bar-conference.

Phishing Remains the Primary Threat Many spam emails received by lawyers, no matter the apparent source, are actually phishing for confidential information or access to finances and other files. White hat probes and HR training will enhance defenses, but it takes only one attorney or staff member to compromise an entire system. No amount of training or software will protect recipients against 100% of the phishing threats; constant precaution and prudent email review are also necessary. VERIFY (www.verifythis.com) recently published five simple checks to test suspicious emails. It consists of these reminders: 1. 2. 3. 4. 5.

Who is the email from? Is there an urgent subject line? Is there a generic greeting? Does it ask you to click on a link? Are there spelling and grammatical errors?

Following this simple checklist when reviewing emails will probably eliminate many phishing threats. Admittedly there are more sophisticated phishing emails, but the vast majority are identifiable when using this list: https://twitter.com/ VerifyThis/status/1492257164672520195/photo/1. 14 SAN DIEGO LAWYER | March/April 2022

Slack and Other Collaboration Apps It wasn’t long ago when some attorneys suggested to opposing counsel they skip emails during electronic discovery. That didn’t last long because attorneys soon realized that much relevant information could be found only after review

of those ignored emails and their attachments. Electronic discovery continued to evolve, adding social media and mobile phone data to its mix. Text messages, and audio and video files soon joined the Electronically Stored Information (ESI) universe. New methods to preserve, collect, and review that information followed in short order. The most recent change is probably the ESI in collaboration apps such as Slack and Microsoft Teams. Their use has expanded dramatically, particularly during the pandemic. Slack users now generate over 1.5 billion messages every month. Like email, many may be irrelevant information, but Slack and the others constitute an almost unbearable burden for legal teams to properly manage said data for discovery. Vendors and manufacturers are offering tools of various sorts, but that information after preservation and collection still requires review, perhaps in a new platform that legal teams will learn to operate. If nothing else, that constant evolution suggests that the burden of electronic discovery competency will never stabilize education and revised recourses.

DIY Text Message Collection Historically self-collection of ESI such as email was disfavored by some attorneys and courts as falling below the gold standard possibly afforded by vendor collection. To a certain extent, that was a valid conclusion absent precise instruction and supervision by the collecting entity. And the availability of a variety of forensic tools offered a valid alternative. But times change. Currently, substantial ESI is stored on both personal and business mobile devices. Preservation, collection, and review of this information are perfect examples of the constantly evolving nature of electronic discovery. Conventional electronic discovery tools may not be of any assistance, and in this area of electronic discovery, do-it-yourself collection may be appropriate and defensible. Piecemeal collection and preservation of message exchanges between two parties is possible but not a satisfactory solution.

Fortunately, developers now offer software solutions such as iMazing (www.imazing.com) and Stitch-It! (http://stitchitapp.com/) that you can download and install on a computer. These can create excellent presentation exhibits of conversations, avoiding redundant, obsolete, and/or trivial messages in that process: https:// appsinlaw.com/join-and-stitch-screenshots-fromtext-messages-social-media-and-more/.

Sample Size Discussions The volume of data and files created and then stored continues to increase, seemingly exponentially. Attorneys confronting that mountain of data increasingly are proposing the employment of computer assistance in winnowing out and testing that data before human review. Determining the parameters of that process often involves a decision about the sample size necessary to reach valid conclusions. In the minds of some, the simple response to disappointing results is to enlarge the sample size. The smoking gun must be in there somewhere. A simple increase in sample size need not be the knee-jerk conclusion. Courts and attorneys must realize that the appropriate sample size depends upon the prevalence of the information sought in the mass of data being tested. The rarer the thing you seek, the larger the necessary size. For a more common target, a small sample size might be appropriate. There is no magic solution, and attorneys must always remember that a null return from a small sample may mean practically nothing. [For refresher reading on richness, recall, and precision, revisit Grossman & Carmack, “The eDiscovery Medicine Show” at https:// moritzlaw.osu.edu/sites/default/files/2022-01/ THE%20EDISCOVERY%20MEDICINE%20SHOW.pdf].

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

SAN DIEGO LAWYER | March/April 2022 15

Business of Law by Edward McIntyre

PANDEMIC — A BLESSING IN DISGUISE? How One Law Firm Turned a COVID-19 Necessity Into a Lawyer/Staff Benefit

ccording to Heather Rosing, Klinedinst’s Chief

Because brand-new lawyers and staff have to be

Executive Officer, “employee work-life balance,

integrated into the firm, they are not immediately eligible

wellness, and retention” were the principal

for remote work, according to Rosing. But after six

reasons the firm formally adopted a policy that allows all

months, they too can apply. If a lawyer elects to be in the

lawyers (and almost all staff) to choose to work remotely

office at least three days a week, they will have their own

— either full time or part time. Only those whose positions

office. If the person is present fewer than 3 days, they will

require on-site presence, e.g., production and hard record

use a guest office. As a consequence, “a lot of lawyers

file maintenance, do not have the option.

chose to come to the office three days,” Rosing says. But only a handful — about 15% — are in the office

“The necessity for pandemic-driven flexibility” gave the

full time.

firm the opportunity to test, formulate, and eventually embrace the new policy. A Remote Working Committee

According to Rosing, the benefits were immediate:

studied remote working options, surveyed the firm’s

for example, for lawyers and staff with child care

lawyers and staff for input (especially their experience

responsibilities, or those with long commutes. The firm’s

during the most difficult part of the pandemic), and

Los Angeles-based lawyers and staff — given that city’s

reviewed the firm’s business performance during

traffic — are especially grateful for the opportunity

COVID-driven remote practice. The committee was able

to work remotely. Lawyer productivity has increased

to formulate a plan that not only met the needs of the

because they have an extra hour or more to practice

firm and its clients, but also, importantly, also met the

instead of sitting in traffic.

health and wellness needs of its lawyers and staff. “It gives them greater freedom to structure both their practices and their families’ needs,” says Rosing. She recently told the ABA Journal: “I really believe that the way to run a modern law firm, an innovative law firm, a cutting-edge law firm, is to permit things and implement things that haven’t been used in the historic model.”

To implement the policy, the firm invested heavily in remote infrastructure, with large-screen monitors, green screens in conference rooms for picture-perfect backgrounds, additional software, and cameras. The firm reimbursed its lawyers and staff for new laptops, docking stations, screens, and the other equipment necessary for them to work remotely. “The investment paid off,” Rosing says. “When omicron hit, we were able to be completely remote and working within 24 hours.”

16 SAN DIEGO LAWYER | March/April 2022

Rosing converted a conference room with multi-screen

three large ones, and adopted an open-plan workspace

computers, cameras, and a green screen into her “new”

that fits remote working. The firm remains in the same

office in the firm’s downtown San Diego headquarters.

Class A building but with less space.

It has allowed her to recognize the ability of lawyers to work productively from nontraditional locations.

Klinedinst partner Susan Nahama serves as the firm’s

She says, “To practice law, you don’t need to be married

Chief Operating Officer, a full-time administrative position,

to your traditional office with the door that closes.”

allowing Rosing, as CEO, the opportunity to devote her energies to “strategic and visionary” planning, in addition

When it comes to mentoring and supervising younger

to her very full practice. The firm’s flexible, remote-work

lawyers, Rosing says she found the firm’s younger

policy has, according to Rosing, produced immediate

lawyers adapted very quickly, using Zoom and Teams,

and tangible results, especially for lawyer and staff

and “a ton of video,” such that more senior lawyers

“health and wellness,” and is an effective recruiting tool.

were able to mentor and supervise with little difficulty. Her approach is “tell me when you come in and we can

Overall, Rosing says the firm’s lawyers and staff consider

meet.” She finds it works well.

the policy change and the flexibility it offers both a genuine success and a testament to the firm’s willingness

One collateral benefit of remote working is that the

to embrace innovation.

firm’s space needs in some of its offices are reduced. For example, when the firm renewed its Los Angeles lease in October, the firm downsized. Because a substantial number of LA employees elected to work remotely, the firm reduced its file room, has a smaller kitchen and two smaller conference rooms instead of

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

THE NEW WAVE OF STORMWATER LAWSUITS By Jeff Caufield

hose attorneys old enough to remember when

While the CWA was created with good intentions,

Proposition 65 first passed will remember the

it has unfortunately spawned a cottage industry for

wave of lawsuits that followed, with claims that

some who seek to capitalize on the broad language

there was a failure to post warning signs and labels on

of the statute and shake down businesses as opposed

just about every building, product, and location where

to genuinely attempting to regulate environmental

someone may hypothetically come into contact with

polluters. This concern has reached a tipping point;

a carcinogenic substance. Proposition 65 lawsuits are

as a result of the dramatic increase in recent citizen

no longer being filed with the frequency they were

suit filings based upon tenuous factual circumstances,

20 years ago. However, in the last few years there

the United States Justice Department has begun

has been an uptick in lawsuits related to stormwater

to scrutinize plaintiffs and their law firms who file

discharges under the Clean Water Act (CWA).

“repeat” form-based lawsuits containing only generic allegations. According to the Justice Department in a

The Clean Water Act was enacted to regulate

recently filed Statement of Concern:

contaminant levels of surface waters and encourage the implementation of sewage treatment plans.

“The practice of initiating and settling a large

The statute prohibits discharges of pollutants from

volume of CWA citizen suits appears a novel

a point source to waters of the United States unless

innovation. The United States is thus concerned

authorized by a permit or applicable statutory

that these lawsuits may not be well founded

provision. 33 U.S.C. §1311(a). Congress enacted the

and may be contrary to the expressed intent

citizen suit provision to permit litigants to enjoin

of Congress regarding the CWA’s citizen

“continuous or intermittent” CWA violations. See

suit provision.” (Emphasis Added.) See, e.g.,

Natural Resources Defense Council v. Southwest Marine,

United States’ Statement of Concern and

Inc., 236 F.3d 985, 998 (9th Cir. 2000). At least 60

Recommendation that Plaintiff File a Motion to

days before filing a complaint, a citizen plaintiff must

Enter the Proposed Consent Decree, Lares v.

send a notice of violation to both the alleged violator

Reliable Wholesale Lumber, Inc., No. 18-cv-00157

and the Environmental Protection Agency. 33 U.S.C.

(C.D. Cal. May 18, 2018).

§1365(b)(1).

18 SAN DIEGO LAWYER | March/April 2022

“While the CWA was created with good intentions, it has unfortunately spawned a cottage industry for some who seek to capitalize on the broad language of the statute and shake down businesses as opposed to genuinely attempting to regulate environmental polluters.”

In many instances, it would appear that the suits are being filed without any supporting evidence or scrutiny of actual operations. In other words, the suits are targeted based on the type and location of the business and whether or not they have an Industrial Stormwater Permit. Frequently, the issue is a simple paperwork violation that can be easily corrected. Nevertheless, the client may need to hire an environmental consultant in addition to legal counsel to defend the lawsuit. At the end of the day, the payment of attorney fees seems to be a driving force behind the private party litigation; cost of defense for the client can be substantial between both legal and consulting fees. This can be particularly problematic as many of the defendants are mom and pop-type operations with fairly low revenue. If a settlement is reached, a consent decree may be demanded, which can be extremely difficult to negotiate. In nearly every instance that we have represented clients in these types of cases, we have

One firm was reported to have served more than 150

found either a minor paperwork violation or that

notices of violation. Others seem to have similarly filed

there was, in fact, no discharge from the site that

dozens, if not hundreds, of lawsuits across the state.

would create potential liability under the CWA. Thus, understanding the nature of the client’s business and

Generally, complaints allege that the defendants

operations can be a key component in the defense.

“have been discharging and continue to discharge polluted stormwater from the facility in violation of the express terms and conditions of Sections 301 and 402 of the Clean Water Act,” and violate California’s

Jeff Caufield (jeff@caufieldjames.com) is a partner at Caufield & James, LLP.

general industrial stormwater permits. See, e.g., Garcia v. Miller Castings, Inc., No. 17-cv-07408 (C.D. Cal. Oct. 10, 2017); Lunsford v. Arrowhead Brass Plumbing, No. 16-cv-08373 (N.D. Cal. Nov. 10, 2016; Lares Reliable Wholesale Lumber, Inc., No. 18-cv-00157 (C.D. Cal. Jan. 29, 2018). The plaintiffs allege that the facilities are subject to an Industrial Stormwater Permit, which regulates stormwater discharges. The gravamen of the allegations are that the facilities failed to test their discharges and are discharging stormwaters that may cause pollutants to enter nearby rivers. In some instances, plaintiffs demand daily civil penalties that can rapidly run into millions (if not tens of millions) of dollars.

NOTICE OF SUMMONS AND COMPLAINT: FARMERS INSURANCE EXCHANGE v. JOCELYN GALINDO, et al. Consolidated Case No. 37-2020-00016572-CU-PA-CTL STATE OF CALIFORNIA, COUNTY OF SAN DIEGO BUS ACCIDENT – OCTOBER 2, 2018 On Tuesday, October 2, 2018, San Diego Metro Transit System bus no. 2402 was involved in a motor vehicle collision with a grey Honda Odyssey minivan (the “Accident”). The Accident happened at the intersection of Market Street and 31st Street in San Diego at around 12:30 p.m. Those on the bus who were under the age of 18 years old when the Accident happened and sustained injury as a result of the Accident may be entitled to compensation. Those who fit these criteria and wish to pursue an injury claim are summoned to appear in this Court, using the above case number by Monday, June 6, 2022. Appearances must be filed by Monday, June 6, 2022, or the possible right to compensation will be lost. Those with a claim may also contact the attorney of record for plaintiff Farmers Insurance Exchange, in writing, at dezra@bergerkahn.com: David B. Ezra, Esq. BERGER KAHN 1 Spectrum Pointe Drive, Suite 340 Lake Forest, California 92630 dezra@bergerkahn.com

SAN DIEGO LAWYER | March/April 2022 19

MENTAL HEALTH TREATMENT IN THE SAN DIEGO SUPERIOR COURT CRIMINAL JUSTICE SYSTEM By Dana Grimes and Jay Temple

criminal prosecution can be an effective

challenges of equitably resolving criminal cases

intervention to specifically deter criminality,

when the underpinning conduct is driven by a

which is a polite way of saying that if we

defendant’s mental illness. Perhaps most notably,

lock a person in prison, they cannot commit crimes

legislation creating Penal Code section 1001.36 –

against the public (at least temporarily). Our criminal

Mental Health Diversion was signed into law in 2018.

justice system was largely designed as a mechanism

With this diversion option, “The Legislature sought

to ascertain whether a defendant is guilty or not, and

to expand the use of community-based mental health

to determine the punishment for those who admit guilt

treatment in order to prevent defendants with treatable

or who are found guilty. However, there is growing

mental illness from cycling in and out of our criminal

societal awareness that we have a large number of

justice system.” [People v. Williams (2021) 63 Cal.App.5th

people with mental illnesses serving prison sentences

990, 1004.]

in California and our prison system is overcrowded. A California state prison sentence is also expensive —

Section 1001.36 diversion authorizes a trial judge

it costs taxpayers approximately $100,000 per inmate,

to suspend criminal proceedings for qualifying

per year.

defendants and order the completion of an individually tailored treatment plan. There are six

Over time, laws and the roles of the court, prosecutors,

criteria a defendant must meet for the judge to have

and defense attorneys have evolved in an attempt to

the discretion to grant diversion. In essence, the judge

solve problems and deter recidivism, and our court

must find that the defendant has a “mental disorder”

system now is much more than a place where guilt is

that was a “significant factor” in the commission of the

determined and punishment doled out. Keeping with

charged offense, and that the defendant will respond

this trend, over the last few years, the laws in California

to treatment and will not be an “unreasonable danger

have developed to more adequately address the

to public safety.” (Pen. Code § 1001.36.)

20 SAN DIEGO LAWYER | March/April 2022

A small list of crimes are ineligible for diversion, but generally speaking, the coverage of the statute is broad. If diversion is granted and the defendant successfully complies with the court’s conditions, not only is the sanction of prison or jail avoided, but the conviction is avoided as well. Avoiding a conviction is important because the existence of a criminal record can significantly impede efforts to find or keep employment, and having meaningful employment is often a critical aspect of a defendant remaining successful and law-abiding in the long term. The judge can grant this type of diversion even over the prosecution’s objection, but the prosecution does not always object. In San Diego County, we are fortunate that prosecutors are mindful of the fact that mental illness mitigates criminal conduct, and in many

“Avoiding a conviction is important because the existence of a criminal record can significantly impede efforts to find or keep employment, and having meaningful employment is often a critical aspect of a defendant remaining successful and law-abiding in the long term.”

cases they are willing to not oppose diversion if they believe the defendant meets the criteria and the case is otherwise appropriate for diversion. Beyond the changes to the statewide diversion laws, the San Diego County District Attorney has been part

cases, many involving a significant component of

of the effort to implement a program called the

mental illness. Hopefully, these Crisis Stabilization

Crisis Stabilization Unit, which is designed to meet the

Units will be a mechanism to reduce the number of

needs of people experiencing mental health episodes

cases prosecuted by providing the appropriate help

without the intervention of the criminal justice system.

to those experiencing a crisis before any criminal

Often, when a person is experiencing a mental

conduct occurs.

health crisis, law enforcement is called. Our local law enforcement agencies, including the San Diego Police

As these new programs are discussed, it should

Department (SDPD), deserve credit for working very

be noted that there are other more long-standing

hard to utilize their training in de-escalation and call

programs, like Behavioral Health Court, for example,

specialized Psychiatric Emergency Response Team

which continues to be an important part of our local

(PERT) units to respond when necessary. However,

criminal justice system in San Diego Superior Court.

law enforcement has historically had limited options

However, the two relatively newer programs discussed

for assisting a person with mental illness displaying

in this article are unquestionably a shift toward finding

behavior that is dangerous to themselves or others

a more progressive and sensible way to address the

beyond taking the person to jail or initiating an

mental health of people charged with crimes.

involuntary detention at a psychiatric hospital. When it opened in North County in late 2021, the Crisis Stabilization Unit began offering another option: a 24-hour clinic where a person who is experiencing a mental health crisis can be dropped off and treated. Individuals can be dropped off by law enforcement or privately (through the assistance of family and friends, for example). More such units are slated to open throughout the county. Similar to the state’s overcrowded prisons, the San Diego court system is experiencing an unprecedented backlog of criminal

Dana Grimes (dana@gwdefense.com) is a criminal defense attorney who defends individuals and corporations accused of crimes. She serves as Editor-in-chief of Trial Bar News, is a past-president of CASD, and is a current board member of the Enright Inn of Court and the Criminal Defense Lawyers Club. Jay Temple (jay@gwdefense.com) is certified by the State Bar of California as a specialist in criminal law. He is the President of the San Diego Criminal Defense Bar Association (2021-2022) and serves on the board of directors for the San Diego County Indigent Defense Grant Fund.

SAN DIEGO LAWYER | March/April 2022 21

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PRIORITIES & BALANCE

STARTING A MINDFULNESS PRACTICE TO FIT YOUR LIFESTYLE By Gayani R. Weerasinghe

n recent years, the word mindfulness has been peppered everywhere in popular media because of its positive effects on reducing stress, anxiety, worries, and burnout. Mindfulness is the practice of being fully present in the moment, including paying attention to your thoughts, feelings, and emotions. While mindfulness and meditation are not the same thing, they are closely related. There are mindfulness meditations based on the understanding that your mind and body are connected, and by slowing down and looking inward, you can clear negative thoughts racing through your mind and causing adverse effects in your body (like holding your breath or chronic pain). In adopting this type of meditation, you train yourself to pay attention to your thoughts, and notice how your thoughts impact your body and vice versa. A mindfulness practice can be a good habit but for it to become routine, you have to work at it, just like going to the gym. I would recommend reading or listening to Atomic Habits by James Clear as a good resource for building this habit. Think of mindfulness as a muscle you are training.

Set an alarm on your phone to remind yourself to take at least one minute-long break every hour to sit still and focus on your breathing. Take some deep breaths, making your exhales longer than your inhales, which signals your body to relax (for instance, 4 beats in, hold for 2, and release for 6). Turn existing routines, such as brushing your teeth, taking a shower, doing the dishes, or commuting to work into a mindfulness practice by turning off the radio, paying attention to your surroundings — sensations like the water touching your skin, the toothbrush in your hand — and directing your thoughts to the present moment. If you like nature, take a quiet walk on your own or with a pet. You want to be fully present, so reduce distractions (like your phone) that can take you into autopilot mode where your mind is less present. Your practice can also be an outdoor activity, such as hiking, bike riding, golfing, or surfing, or an indoor activity

Here are some general tips I have learned over the years from practicing mindfulness.

like crocheting, knitting, baking, or cooking. These simple acts of focusing on the moment and being

Tip 1: Start simple with something that is already aligned with your interests or routine. Tip 2: Try one thing at a time — focus on consistency, and give it at least a couple of weeks or months before trying something different. You need to give it a chance to work. Tip 3: There are multiple paths to mindfulness. It can be formal or informal; don’t fall for the trap of thinking that it can only be done one way. Here are examples of a few mindfulness practices:

consciously present instead of defaulting to autopilot can have great benefits for busy professionals who are often inundated with moving deadlines and growing inboxes.

Gayani R. Weerasinghe (gayani@lawgrw.com) is an Intellectual Property & Business Law Attorney, helping entrepreneurs, startups, and biotechs with their transactional needs.

SAN DIEGO LAWYER | March/April 2022 23

PRIORITIES & BALANCE

PETS AND ATTORNEYS: A PARTNERSHIP IN WELLNESS By Anne Kammer

ttorneys are more likely than other

pressure, reduce stress and anxiety, ameliorate loneliness,

professionals to experience major depressive

and provide ongoing social support? What if it was a guinea

disorder.1 Statistically, attorneys also engage

pig? A turtle? A cricket or a goldfish? A dog, a cat, or a

in problematic drinking behavior at an alarming rate,

rabbit? Or all of these and more?

and are more likely to abuse prescription drugs and die by suicide at higher rates than many other professionals

Companion animals of any kind are a powerful and

in the United States. Even before the onset of a years-

effective means of supporting wellness, especially for

long pandemic, attorneys outranked other professionals

individuals who face greater challenges maintaining

on a “loneliness scale” in a 2018 survey. Together, these

good health for any number of reasons, including their

statistics strongly insinuate that the legal profession has

occupation. This is not new information, but rather

a wellness crisis.

something that scientists have put much time and effort into studying and documenting. The examples

Unfortunately, this is not a new phenomenon. Twenty

abound. For instance, the human-animal bond,

years ago, the California State Bar reported that 25% to

particularly between people and dogs, has proven an

35% of all situations requiring formal charges against

effective treatment for military veterans experiencing

an attorney involved substance abuse. Nor can it be

post-traumatic stress disorder (PTSD). In San Diego

described as a generational problem, or one that appears

County, nonprofit organizations like Shelter to Soldier™

to be waning. If anything, general well-being has now

train psychiatric service dogs to help post-9/11 combat

been found to decline at the outset of an individual’s

veterans with PTSD. Therapy dogs also help children

legal career; during their first year of law school,

who have survived unimaginable abuse testify in court.

when they join an elite group of “the most dissatisfied,

The San Diego County District Attorney’s (DA) Office

demoralized, and depressed of any graduate

was one of the first in the United States to employ the

student population.”

assistance of therapy dogs to provide support and

comfort to child victims of physical and sexual abuse. Most attorneys know these statistics. California attorneys

The San Diego DA’s Office officially established the

get a disheartening refresher course every couple of

Court Dog Program in 2009, and it now employs more

years during their mandatory 1.5 hours of Continuing

than a dozen therapy dogs.

Legal Education (CLE) on competency issues, where they are also reassured that there are resources

Animals both young and old can provide mental and

available — toolkits for coping with the struggles inherent

emotional support. Puppies are routinely brought onto

in and unique to the practice of law. And fortunately,

school campuses to soothe and calm students during

these resources are readily accessible. To quote

examination periods. The Center for Health and Wellness

Benjamin Franklin, however, isn’t an ounce of prevention

Promotion at the University of San Diego has previously

worth a pound of cure?

held a biannual Therapy Dogs event to help students reduce stress during finals. Puppies have also come to

In other words, attorneys should constantly be looking

play a huge role in the rehabilitative process for California

for ways to thwart the threat to their mental, physical,

inmates selected to participate in service dog training

and emotional health posed by their profession of choice.

programs. Allowing inmates to train service dogs has

And what if there was something out there, something

been shown to alleviate depression, decrease aggression

available to all attorneys — something proven to help

while incarcerated, and lower the rate of recidivism for

relieve the symptoms of depression, lower blood

those who participate.

24 SAN DIEGO LAWYER | March/April 2022

Pets can have an equally profound impact on the daily lives of individual attorneys struggling with the stress of the profession.

Attorneys interact with clients, opposing counsel, court staff, and judges, and must hold themselves to the highest degree of professionalism while still being personable and friendly; pets can provide a bond and common ground where there might not have been any otherwise.

Fiona McIntyre Abbie Kammer

Attorneys sit at a computer much of the day; pets encourage their owners to go outside and exercise.

Maximus Houth

Styx Olinik

The legal profession can be contentious; pets offer unconditional love and support.

Ruth Sandler

Attorneys frequently work alone; pets provide constant companionship.

For attorneys, who face a statistically proven career-long battle to maintain their health and well-being, a pet can provide a lifeline and a sense of normalcy. As George Eliot wrote, “Animals are such agreeable friends. They ask no questions; they pass no criticisms.” And in a profession plagued by loneliness and a crisis of wellness, they can be both a means of prevention and the cure. Editor’s Note: Numerous animal shelters in San Diego County are committed to the rescue and care of companion animals. If you are looking for a four-legged companion of your own, consider adoption.

Anne Kammer is a Deputy Attorney General at the California Department of Justice and teaches Administrative Law at USD School of Law.

Attorneys often work long hours; pets can help their owners maintain balance with their personal lives and routines.

Footnotes 1.

Eaton, W. W.; Anthony, J. C.; Mandel, W.; Garrison, R. “Occupations and the Prevalence of Major Depressive Disorder.” Journal of Occupational Medicine (November 1990), 32(11):1079-87. doi: 10.1097/00043764-199011000-00006. PMID: 2258762.

Krill, P. R.; Johnson, R.; Albert, L. “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys.” Journal of Addiction Medicine (2016), 10(1), 46-52.

McCarthy, N. “Statistics tell story of stress, addiction in lives of lawyers.” California Bar Journal (November 2000). Retrieved from http://archive.calbar.ca.gov/calbar/2cbj/00nov/index.htm.

ABA National Task Force on Lawyer Well-Being, “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.” (August 2017).

SAN DIEGO LAWYER | March/April 2022 25

PRIORITIES & BALANCE

THE CASE FOR TAKING A BREAK

By Benjamin C. Bunn

remember a great conversation years ago with my friend,

connection to the law. There were lawyers from all sides with

legendary lawyer Denny Schoville. Denny told me that one of

tremendous talent and experience — and they now had new

the best things he had ever done was take a sabbatical when

perspectives and, importantly, some time. We recently came

he was a partner at Gray Cary. Denny reflected on the benefits

together as a legal community to form the Resolve Law San

of taking 12 months away from the stresses and day-to-day

Diego program to help settle cases during the court closures

turmoil at his busy litigation practice. For Denny, it connected

caused by COVID. Hundreds of lawyers and retired judges

him with his family and allowed him to gain clarity about his life

stepped up immediately to help. Why not put something

and future.

together to help us for the long term?

I find myself thinking a great deal about how we must do a

I thought that this might be just the resource our trial lawyer

better job of managing the emotional and physical stress that

community needs to give us a break. Would it be possible to

this profession demands. I watched myself and many of my

have such a high-level lawyer step in for you for a few months?

friends struggle with balance and trying to find a way to be

This would be someone who you could trust to handle your

true to one’s self, family, and career. It is not easy, and there are

cases and who would have the experience and respect to keep

no quick solutions, but we need to have a conversation about

your firm on track. You would not be worried about someone

how we can do this thing better. Even more so in these days of

taking your business away — they would not have any desire

COVID — we as a profession owe it to ourselves and those who

to work full time again — but it would be a way for someone to

count on us to improve how and what we do.

reengage with the practice knowing it was just a short stint back in the arena.

Back to Denny’s sabbatical. After being a plaintiff’s trial lawyer for about 10 years, I too wanted to take a three-to-six-month

I am sure there are many logistical issues to resolve, and it

break from my practice. Unfortunately, my practice has always

might take some creative thinking. But what if this could work?

been very small without the structure and support of a large

Could we help avoid or reduce career burnout? Could we add

firm. The concept of stepping away — and I mean really

some balance and come back better with a fresh perspective?

stepping away — from my day-to-day responsibilities never

I think it is time to have this conversation to help us find one

seemed possible or realistic. Who could handle hearings or deal

more way to improve our mental health. We usually take care

with clients? What about moving forward with discovery and

of everyone around us; maybe it is time to find a way to help

depositions? What about the day-to-day issues that need my

ourselves. Let’s have a conversation — please send me your

attention to keep the law firm business successful? I suspect

thoughts at ben@bunnlawgroup.com.

many other solo or very small law firms are in the same boat. So, I had this wild idea as I was looking around at all the very talented lawyers attending a San Diego American Board of Trial Advocates meeting not long ago. I saw a room that included many recently retired (or mostly retired) lawyers who had stepped away from the daily practice but who still wanted some

Benjamin C. Bunn (ben@bunnlawgroup.com) is the founder of Bunn Law Group. He has been a Plaintiff’s Trial Lawyer and Trial Consultant for 32 years, dedicated to helping people following devastating tragedies that result in severe injuries and death.

Mental Health Services 2-1-1 San Diego 2-1-1 • 211sandiego.org A 24/7 free phone service for access to 6,000+ community, health, social, and disaster services. Assistance available in over 200 languages. American Foundation for Suicide Prevention 800-273-TALK (8255) or text TALK to 741741 • afsp.org 24/7 support for people in distress or needing suicide prevention and crisis resources. National Alliance on Mental Illness (NAMI) San Diego 800-523-5933 or 619-543-1434 • namisandiego.org A resource helpline, support groups, educational meetings, and more.

26 SAN DIEGO LAWYER | March/April 2022

The Trevor Project 866-488-7386 • www.thetrevor project.org 24/7 crisis intervention and suicide prevention services for LGBTQ people under 25. Courage to Call 877-698-7838 (or 2-1-1, option 4) • www.courage2call.org A 24/7 peer line and other resources for Veterans, Active Duty, Reservists, National Guardsmen, and their families. Substance Abuse and Mental Health Services Administration (SAMHSA) 800-985-5990 • www.samhsa.gov/find-help/disaster-distress-helpline 24/7 crisis counseling and support for people experiencing emotional distress related to a disaster.

PRIORITIES & BALANCE ALTERNATIVES TO IN-OFFICE THERAPY: Your Next Therapy Tool Could Be On Your Mobile Phone By Ron Marcus

hile I am not a lawyer myself, I come from a family

Insight Timer — Offers thousands of free guided meditations

of lawyers, and as part of the SDCBA professional

and talks led by meditation and mindfulness experts,

team, I talk with lawyers constantly. I’ve developed

neuroscientists, psychologists, and teachers, set to calming

close relationships with many of you. One of the consistent refrains about this profession concerns the mental/emotional health challenges that are often associated with this work. As lawyers, you have signed up for what can be a very rewarding, but also hugely taxing endeavor.

music. iOS & Android. https://insighttimer.com Healthy Minds Program — Designed to help train your mind through meditation and podcast-style lessons to help you gain focus, reduce stress, and maintain positive social connections. iOS & Android. https://hminnovations.org Fiton — This is a straight-up fitness app that includes meditation

I want to emphasize that facing mental/emotional health

as well as all kinds of workouts. The paid version is only $29.99

challenges should never be stigmatized or considered

a year, but even the free version offers a generous number

shameful — they are as normal a part of human daily life as

of programs led by expert trainers and guides. iOS & Android.

physical health challenges are, and there are many reasons

https://fitonapp.com

why mental health can suffer — especially under the intense strain of lawyering. All of us humans face it. Nobody is immune. The good news is, we can all take positive steps to improve our mental and emotional well-being.

Paid In my survey of “best apps” lists, the following apps came up often: Headspace, Calm, Happify, Ten Percent Happier, and Moodkit, among others. The best advice I can give is to read the

“There’s an app for that.”

reviews, see which app descriptions resonate for you, and give

Traditional therapy can be time-consuming and costly. I know — I’ve seen therapists off and on for many years (and I have no shame in saying so). While there is no substitute for proper inperson therapy for dealing with a variety of mental/emotional issues, for many of your daily challenges, there are a great many mobile apps you can try which may help you relieve stress, discover coping mechanisms, gain perspective and clarity, feel self-empowered, and practice an effective mental/ emotional self-care regimen. Best of all, they’re very affordable and can be accessed right from your phone.

those apps a try. The apps are essentially self-guided — they

Most paid apps offer monthly and annual subscriptions, usually with a free trial. Some offer a free option that can be quite limited, with annoyingly frequent invitations to upgrade. App prices vary, but none are prohibitively expensive to try. Many are based on Cognitive Behavioral Therapy, a proven methodology that helps identify and uproot negative thinking and emotions. https://www.psychologytoday.com/us/basics/ cognitive-behavioral-therapy

give you prompts, and you do the work. The next step from there: online therapy apps such as Talkspace (https://www.talkspace.com), BetterHelp (https:// www.betterhelp.com), and Calmerry (https://calmerry.com/ try-online-therapy/), providing direct access to a live, licensed therapist, with an extensive list of therapists to choose from. You can interact via text message, video, or a combination. Pricing starts at $42 a week for text-message only. I have personally used Talkspace and found the experience pleasant and helpful. I was very happy with my therapist, who was responsive and insightful. You can always switch therapists if you are unsatisfied, and cancel your subscription at any time.

Next Step If this article has piqued your interest, I recommend visiting the Apple App Store or Google Play to search for apps, as well as use your trusty web search engine to find lists of “best apps” to

Here are a few apps that have personally resonated with me,

try. I wish you well on your total health journey.

and you may wish to consider trying.

Free The following are either completely free or offer a free version that is not too limited to be useful.

Ron Marcus (rmarcus@sdcba.org) is the Director of Marketing and Public Outreach at the San Diego County Bar Association.

SAN DIEGO LAWYER | March/April 2022 27

PRIORITIES & BALANCE

TAKE CARE OF YOURSELF By Hon. Vic Bianchini (Ret.)

fter being in the legal profession for 58 years, I have observed the stresses that the legal practitioner can experience in what can be described only as a demanding and often harrowing way to make a living. If you are a trial lawyer or general practitioner representing clients in disputes, it is a profession in which you have to face an adversary on every case. With the pressures of discovery, other preparations for trial, deadlines, and difficult and troubling case-related issues, the anxiety for some can be crippling. In addition, because of the nature of the beast, the mind becomes so engaged in the intellectual tasks at hand that a habitual sedentariness sets in, exercise falls off, and the body is neglected. For some, the pressures of demanding hours and the stressful work environment can lead to alcohol and other substance abuse, and sometimes to mental health issues. Writer Sam Rosenthal1 tells us that “a 2016 study2 by the Hazelden Betty Ford Foundation and the American Bar Association Commission on Lawyer Assistance Programs shows, 21% of licensed, employed attorneys qualify as problem drinkers, 28% struggle with some level of depression and 19% demonstrate symptoms of anxiety.” A 2014 article3 by the ABA notes that “at least 25% of attorneys who face formal disciplinary charges from their state bar are identified as suffering from addiction or other mental illness,” and that substance abuse plays a role in “60% of all disciplinary cases ...

28 SAN DIEGO LAWYER | March/April 2022

60% of all malpractice claims and 85% of all trust fund violation cases.” In [a] 2018 Legal Trends Report4, “[it was] found that 75% of lawyers report frequently or always working outside of regular business hours, and that 39% of lawyers say these long hours negatively affect their personal lives.” Bottom line: As a practicing lawyer, you need to take care of yourself. And if you haven’t been, you need to start now. Let me strongly suggest that to help reduce stress, it’s important to eat healthy (nutrition is for another article), resist that invitation to go to happy hour, get your butt off the chair, and start a workout routine! You might even look to compete in a sport of your choice. To personalize my message, I have been active in sports all my life. I started in high school with basketball, gymnastics in college, running, marching, obstacle courses, parachuting in the Marine Corps, and singles tennis for 30 years. Then one day at 72, while watching my youngest daughter Amy fence epee in a National Championship bout, her coach suggested that I looked like I could fence. So, I started — don’t ask me why, having never fenced before — never dreaming I would continue. I am still fencing and competing 12 years later. My philosophy is that exercise is the best medicine and all good things physical flow from a regular exercise routine. And, it is never too late to start a sport!

Priorities & BALANCE PRIORITIES & BALANCE Some of the sports out there for you include tennis, track and field, pickleball, swimming, basketball, badminton, stationary bicycling (or bicycling on a track), or just simply walking on a treadmill or outdoors. Seniors’ tennis or pickleball are healthy and competitive sports and are often the first on many lists because they can be doubles or singles and have a high social component to them. Leagues and clubhouses are excellent ways to interact with others and enjoy life. Other senior sports are soccer, walking, basketball, and even fencing. Then there are water sports, including competitive racing. Swimming is one of the best sports for seniors because it minimizes the impact on joints and has aerobic benefits. Pickleball, a sport that has caught on for seniors, has been touted as the fastest growing sport in America! And don’t forget rowing. Rowing machines like Concept 2 can provide great aerobic benefits. Many sports have categories that cater to seniors. For example, U.S.A. Track & Field has a Masters division. The governing body for fencing in the U.S. is USA Fencing. It calls its Masters category, beginning at 40, “Veterans,” a category not associated with the military. Swimming also has a Masters category. Fencing USA Fencing Veterans category has five age groups: 40s, 50s, 60s, 70s, and 80s. It is a very social sport where competitors make lifelong friendships while keeping in shape and enjoying the travel and the competition. Seniors Tennis Over-30s tennis, for those who played the game and want to stay in it, provides excellent competition and exercise. Super Seniors Tennis Promoting tennis enjoyment and opportunities for players age 55 and older. Masters Tennis Masters Tennis is a new spin on the tennis game, using lower compression balls (which move slower) on a modified, smaller court (so there is less ground to cover). Pickleball A fun sport that combines many elements of tennis, badminton, and ping-pong played both indoors or outdoors on a badminton-sized court with a slightly modified tennis net. Played with a paddle and a plastic ball with holes, it can be played as doubles or singles and is enjoyed by all ages and skill levels.

Track and Field U.S.A. Track & Field (USATF) Masters offers local, regional, national, and international competition opportunities in track and field, sprint and long-distance running, weight competitions, jumping events, and race walking for athletes 35 and older (25 and older at USATF Masters Track & Field Championships). Swimming Pacific Masters Swimming (for example) is a regional organization that provides organized workouts, competitions, clinics, workshops, and social functions for adults 18 and over. Programs are open to all adult swimmers (fitness, triathlete, competitive, noncompetitive) who are dedicated to improving their fitness through swimming. If an organized sport doesn’t appeal to you, then just get out and walk and enjoy the outdoors, or do it on a treadmill. The secret to a long and healthy life: keep moving! Editor’s Note: Judge Bianchini (Ret.) is a sabre fencer two-time individual National Champion, a two-time World Team Champion, is the current National Champion and the number one ranked sabre fencer in the nation in his age group. He qualified as a member of nine United States World Championships Teams, traveling to nine European and Middle Eastern countries for the competitions. After 30 years of tennis, he began competing in fencing for the first time at age 72.

Hon. Vic Bianchini (Ret.) served on both the federal and state court benches for a combined period of 48 years, including the San Diego Superior Court and U.S. Magistrate Judge benches in San Diego; Buffalo, Rochester, Syracuse, and Albany, New York; Spokane, Washington; and Los Angeles. He is currently a Mediator and Arbitrator with Judicate West.

Clio, Lawyer Wellness and Mental Health: Changing the Conversation; by Sam Rosenthal.

https://www.hazeldenbettyford.org/about-us/news-media/ press-release/2016-aba-hazelden-release-first-study-attorneysubstance-use

https://www.americanbar.org/content/dam/aba/ administrative/lawyer_assistance/ls_colap_krill_alcoholism_ article_brf_fall14_v044n01.pdf

https://www.clio.com/resources/legal-trends/2018-report/

SAN DIEGO LAWYER | March/April 2022 29

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WHY I LAWYER FREDERICK SCHENK

here are over 170,000 lawyers admitted to practice

of the Sidney and Elsa Schenks in the world. I knew from

in California. There may be an equal or even

a young age that I would come to champion the rights of

greater number of reasons why people chose

others. So, at age 25, I was sworn in as a member of the

this profession, and no two will necessarily be the same.

California State Bar, and by age 29, I had already tried

Still, I can identify two members of the California State Bar

five civil jury trials by myself, all in the U.S. District Court,

for whom, I believe, the answers would have some very

Northern and Central Districts of California.

compelling similarities. Those two people would be my sister, former Congresswoman Lynn Schenk, and myself. Lynn and I grew up as first-generation Americans. Our native language was not English, although we were born in the United States. After the Nazis invaded Eastern Europe, our Hungarian-born father, Sidney Schenk, was taken at gun point and forced into torturous slave labor. This persecution occurred because he was born into a Jewish family, and not even a particularly religious one. As I grew up, my father shared with us his experiences during the war. His stories were vivid, painful, and never had a happy ending. The only part that brought a smile to our father’s face was when he told us about arriving in the United States, as he kissed the ground and thanked God for the opportunity to start a new life, in a new world, with a commitment to being a good American citizen. He never forgot where he came from and always expressed gratitude for having the ability to raise his children with the belief that hard work and education would make us better citizens. Our mother, Elsa Schenk, an immigrant like our father, also lost many close family members in the Holocaust. She imparted to us the importance of having conviction, correcting wrongs whenever we saw them being committed, and helping those for whom we could be a voice where others could not seek justice for themselves. My interest in advocacy began early. Throughout high school, I was on our debate team. In college, I was a member of the UCLA intercollegiate debate team. I knew I wanted to be a trial lawyer because I felt compelled to help people who had come to be victimized by others. Knowing of my own family’s experience with persecution, I chose to become an advocate for those denied access and protection within

The truth is, I had never even seen a trial before I selected my first jury, and yet I managed to pull off a win against a senior partner at one of the largest law firms in San Francisco. At the time, I was practicing in Los Angeles, so I counted this as an “away game,” which made it even more challenging to get a unanimous verdict on behalf of a client who understandably had some doubts about my trial skills, knowing that never before had I appeared in front of a jury. For the past 39 years, I have practiced law at CaseyGerry, a firm committed to advocating for those whose lives are made better because we successfully help clients navigate the civil justice legal system. We have taken on Big Tobacco, asbestos product manufacturers, as well as other sellers of defective products that harm the consuming public. Moreover, we proudly volunteered to provide pro bono legal help for families who lost loved ones during the 9/11 terrorist attacks in New York. In addition to my law practice, I have volunteered to serve several organizations, including those where I eventually came to serve as the board chair or president: the Lawrence Family Jewish Community Center, the Consumer Attorneys of San Diego, the San Diego chapter of the American Board of Trial Advocates, and the 22nd District Agricultural Association (San Diego County Fairboard). I continue to be active in those and other legal, community, and social service organizations. I believe that as lawyers, it is incumbent on us to use our skills and experience to work toward helping repair the world. I lawyer because my childhood experiences steered me in this direction, while my choices as an adult allowed me the opportunities to navigate my own moral compass.

the civil justice system. Sure, watching more than a few episodes of Perry Mason may have sealed the deal, but truly “why I lawyer” is because

Frederick Schenk (fschenk@cglaw.com) is a Partner at CaseyGerry and industry leader in Asbestos litigation. He is also a specialist in auto collision litigation and co-author of the LexisNexis California Automobile Litigation Handbook. SAN DIEGO LAWYER | March/April 2022 31

2022 DISTINGUISHED LAWYER MEMORIAL RECEPTION Join us as we give permanent recogni�on to deceased lawyers and judges of the San Diego County Bar who have demonstrated superior legal skills and commitment to the community throughout their careers. Each honoree is recognized with a permanent plaque inside San Diego County’s Hall of Jus�ce Courthouse. To make a contribu�on on behalf of a past or present inductee or to make a general dona�on to the Founda�on, please visit: sdcbf.org/donatedlm

619-231-7015

info@sdcbf.org

18 5:30 PM 7:30 PM sdcbf.org

San Diego County Bar Awards Close to $400,000 to 26 I across San Diego County, SDCBF has awarded $393,500 cycle will provide an infusion of resources into some

• Community Resource Center - to provide legal • Elder Law & Advocacy - to provide legal advice to low-income seniors throughout San Diego County • Free to Thrive - to support and expand the • Interfaith Community Services - to provide prof-

program in 1979, it has distributed more than $5 million

“With from members of the San Diego legal and business

• Jewish Family Service of San Diego - for the San Diego Rapid Response Network, which educates, protects and assists immigrant individuals and families, including refugees and asylum seekers, with legal support and social services • La Maestra Family Clinics, Inc. - to improve access to legal services and advocate for low-income

•

- to provide

behalf, in individual and impact advocacy and cases, to enforce and expand tenants’ rights • San Diego Volunteer Lawyer Program

• - for pro bono legal services to asylum seekers in San Diego County • St. Vincent de Paul Village - to support represen•

- to provide

• Think Dignity - for the Homeless Youth Legal Advocacy Project, which assists young people with a variety of criminal legal issues - to •

has been able to allocate funds back into its own area,

wide range of pro-bono and low-bono services to immigrants and refugees, with a focus on Grant

• University of San Diego – Legal Advocacy - to promote and protect the legal rights of San Diego County’s current and former foster youth with regard

Downtown San Diego and East County. Grants assist

the homeless, low-income seniors and at-risk youth. T below received funding: - for • • Cal-Western Community Law Project - for consulvolunteer law students provide personalized advice to low-income San Diegans • Casa Cornelia • - to support nocost pro se legal assistance, legal advocacy and direct

• Uprise Theatre - to teach legal principles to participants and have them re-teach these principles to their community through a theatrical performance and

• Legal Aid Society of San Diego

in extensive outreach to community groups, and works with the Regional Center in San Diego County • License to Freedom community about sexual assault •

court process that defendants and family members may have • Voices for Children - to support volunteers advo.

- to aid and

• Pag-Asa Law Clinic - to promote and foster legal access and engagement with the Asian American

visit www.sdcbf.org. Pantone Colors

Red - Pantone 7628 CP Blue - Pantone 2955 CP White

• Reading Legacies

• Center for Employment Homeless Court - to supSAN DIEGO LAWYER | March/April 2022 33

BY YOUR LEAVE By George W. Brewster Jr.

he Oxford Dictionary defines “sabbatical” as a period

fishing and hiking in Alaska, and then volunteering as a San

of paid leave granted to a university teacher or other

Diego Superior Court Pro Tem Judge. “I sat as a pro tem

worker for study or travel, traditionally one year

judge for three jury trials. I learned firsthand how difficult it

for every seven years worked. (It derives from “sabbath,” or

was to remain neutral while observing one side being poorly

in Hebrew, “shabbat,” meaning a rest or break from work.)

represented, and critical questions of witnesses went missing.

Digging deeper with my old pal, the ever-reliable Wikipedia,

The experience only increased my admiration, respect, and

the whole notion of the sabbatical is based on the Biblical

thankfulness for those who elect to serve on the bench.”

practice of shmita. According to Wikipedia (I am too lazy to go

When Scoville returned to Gray Cary in July 1990, he was

look it up myself), Leviticus 25 mandates that Jews in the Land

“much refreshed and looking forward to getting back in the

of Israel must take a year-long break from working the fields

arena. However, in looking back, the major benefit and best

every seven years. To all of this I say: give us a break.

memories of our sabbatical are reflections of high-quality family time with my wife and our two children. ... At this state of

No, really — a break from the often-arduous practice of

my life, those memories are priceless!”

law sounds sublime. Elsewhere in this issue, Ben Bunn argues for the concept of a break from the practice for those

William Kammer, also at Gray Cary, agreed with Schoville’s

struggling or exhausted. But not so very long ago, the two

assessment. “Many of us were in our 40s, and as busy trial

largest home-grown firms (Gray Cary Ames & Frye and Luce

lawyers, had probably neglected our families in the past in

Forward Hamilton & Scripps) offered mid-level partners a paid

some manner.” Kammer left on a one-year sabbatical in

sabbatical of up to one year. What follows are a few of those

mid-1986. At that time, Gray Cary provided 100% of the

sabbatical experiences.

sabbatical-taking partner’s expected income for the first six months and dropped it to 80% for the last six months. “You had

Gray Cary’s then-partner Denny Schoville took a year-long

to be a partner for five to six years before the entitlement

sabbatical starting in July 1989; he and his wife took their two

vested. But there was no requirement to do anything in

children (13 and 11) to Germany, bought a VW camping van,

particular; that was left up to the partner,” Kammer says.

and started touring Germany and Austria, then went to France

Like Schoville, Kammer took his family to Germany (Munich);

to see family before continuing to England, Scotland, and

they got a car, rented a house, and found a school for their son.

Wales. “We ended up camping along a shoreline, searching

“It rejuvenated me and my practice and was a mental release

for the Loch Ness monster without success, ferrying over to

from the pressures of a litigation practice. We traveled before

the beautiful Isle of Skye, watching soaring eagles off the

school started, during breaks, and after [their son] Bruce

coast of Scotland,” says Schoville. After additional touring in

finished school. Munich is very central, so we could take a lot of

Egypt, Switzerland, and Italy, they stayed two weeks with his

day trips to nearby locations in southern Germany and Austria.”

wife’s brother in a small village near Paris before returning

Kammer says the sabbatical program was later changed to

to San Diego after six months away. “During our time away, I

three months around 1990. He recalled a number of partners

tutored our children on their school assignments and realized

who took advantage of the sabbatical program — most used it

just how bright and well-read they were!”

to travel, although he thought one partner used the time to get a master’s at the London School of Economics.

Schoville spent the final six months overseeing a home construction project, spending two weeks with his father

34 SAN DIEGO LAWYER | March/April 2022

Ed McIntyre was another Gray Cary partner who took a year

“became very expensive to the firm, with four or five major

sabbatical, living in Switzerland with his wife. “We were there

producing partners … gone from six months to a year.” He says

in 1989 and had the opportunity to be at the Berlin Wall within

outside accounting experts recommended that sabbatical

three weeks of it opening. With a borrowed hammer,

programs were a luxury the firm should not try to afford.

I pounded out pieces of the wall I still have …We formed deep friendships with Swiss families we met that year, friendships

Charlie Grebing, a partner at Wingert Grebing Brubaker &

that endure even today,” he says, adding that the firm

Juskie LLP, says his firm tried a three-month sabbatical “long

sabbatical “was a terrific program, especially in that it allowed

ago. ... Great for the person taking it. Terrible for the firm. And

mid-level partners to go when it could still make a difference

ruins client relationships.” His firm did a few years of it, then

in their lives.”

ended the program. Grebing’s son, Steve, notes another downside when his father took a sabbatical while Steve was in

And Gray Cary partner Jay Jeffcoat called his sabbatical a

high school. “My father was home all summer and not at work.

“transformative life experience, traveling around the world

Everything you can imagine that needed to be done around

with a 7- and 12-year-old for six months.” Jeffcoat, a lateral

the house was done, seven days a week. There was not a lot

partner for 40 years at Gray Cary and its successor, DLA

of beach time that summer.”

Piper, used some of that time “living with a Mexican family in language immersion and attending classes six hours a

Year-long sabbaticals may be a thing of the past, but the

day.” The rest of the year-long sabbatical was spent traveling

pandemic has shown us (or reminded us) of the value in time

the world, using a TWA “around the world flight pass that

away from the office, for the good of the soul, family, and,

enabled you to keep going to as many locations as you

just maybe, the bottom line. At least, that is what Wikipedia

wanted in the same direction,” and taking advantage of a

tells me.

three-month Eurail Pass. Such programs are not easy to come by anymore, if at all. As Kammer notes, long sabbaticals had an impact on firm revenues, although he feels that fiscal diminishment was worth it given the value of the time away. Jeffcoat says the program

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

SAN DIEGO LAWYER | March/April 2022 35

THE ‘SHADOW PANDEMIC’ OF DOMESTIC VIOLENCE By Carrie Holmes

hile COVID-19 variants have surged across the globe, a different pandemic has been transpiring that your legal skills can help mitigate. Emerging data from a UN Women study indicates that the COVID-19 pandemic has “resulted in a shadow pandemic of violence against women.” The American Journal of Emergency Medicine reports that in 2020, domestic violence increased by 25% to 33% across the globe. San Diego is not exempt — at San Diego Volunteer Lawyer Program (SDVLP), we have seen a stark increase in clients requesting assistance with domestic violence restraining orders since the pandemic began.

Additionally, volunteer attorneys are needed to represent clients at their in-person and remote restraining order hearings. Think of how nervous or intimidated you may have been at your first hearing. Now imagine that you’re a domestic violence survivor in crisis, seated near your abuser, with limited experience in the court system. Imagine you have limited English proficiency, and have endured significant trauma. Having an attorney with you would make all the difference in the world, wouldn’t it? You are never alone when you take a pro bono case from SDVLP, as we pride ourselves on the quality

At SDVLP, we work with amazing volunteer attorneys at our courthouse clinics to assist clients in preparing their requests for restraining orders, which includes interviewing clients, assessing evidence, and drafting declarations. Even if you have no family law experience, your legal skills from other practice areas go a long way toward helping clients in crisis identify evidence, assess different strategic options, and present their case to the court. Our clinics in North County (at the Vista Courthouse) and East County (at the El Cajon Courthouse) are especially in need of volunteer attorneys to help us serve the community and use the civil legal system to protect survivors of domestic violence from further abuse.

of our volunteer training. No previous experience is necessary to volunteer, as one-on-one mentorship from a staff attorney, a manual, templates, samples, and other trainings will be provided. We invite you to volunteer with us to protect survivors and help reduce the effects of the shadow pandemic of domestic violence.

Carrie Holmes (cholmes@sdvlp.org) is the Pro Bono manager and Supervising Attorney at San Diego Volunteer Lawyer Program. She would be thrilled to discuss volunteering opportunities with you.

THANK YOU TO OUR SPONSORS:

PRODUCING SPONSORS:

SAN DIEGO LAWYER | March/April 2022 37

Local Solutions. Global Reach.

NEW CASE LAW GUIDES PROSECUTORS IN PRE-TRIAL APPROACH TO BAIL California Supreme Court’s Humphrey Decision By Renee Rupp

rosecutors across the state are changing their pretrial approach based on a recent California Supreme Court ruling. New due process requirements for arraignments and bail review hearings mean that the days of one-size-fits-all bail schedules are in the past. For perhaps the first time in California history, courts must make an individualized determination about cash bail or alternatives to bail — which includes considering the arrestee’s ability to pay.

There are several considerations for arraignment and bail review hearings in light of Humphrey. Some factors the court can consider when deciding whether to set bail (and at what amount) include protection of the public and/or the victim; the seriousness of the charged offense; the defendant’s criminal record or lack thereof; the defendant’s history of compliance with court orders; and the likelihood that the defendant will come to court if released.

The topic of reforming California’s cash bail system is not new. In 2020, it generated heated debate as Californians considered a veto referendum on a state law that sought to reform the cash bail system through risk assessments. While Proposition 25 was rejected by California voters, a subsequent court decision is now prompting changes.

It is important to understand that this decision did not outlaw setting cash bail at an unaffordable level for defendants. However, the onus is now on the prosecutor to argue that there is clear and convincing evidence that setting bail at such a high amount is necessary to protect the victim or public safety.

The California Supreme Court ruling In re Humphrey (2021) 11 Cal.5th 135, 482 P.3d 1008 (Humphrey) is significant. In an unprecedented ruling, the high court determined that conditioning freedom solely on an arrestee’s inability to pay is unconstitutional and a violation of due process and equal protection.

The Humphrey case emphasizes that pretrial detentions are not meant to punish. In fact, the sole purpose of a pretrial detention is to protect the community and to ensure a defendant’s appearance in court.

This case stemmed from an incident in which Mr. Humphrey, the defendant, followed a 79-year-old man into his apartment, threatened him, and demanded money. Mr. Humphrey ended up leaving with $7 and a bottle of cologne. Based on the charges filed, prior convictions, and enhancements, bail was set at $600,000. While it was later reduced to $350,000, it was still beyond Mr. Humphrey’s ability to pay. Mr. Humphrey argued that for various reasons, including his community ties and having no prior failures to appear, he was entitled to be released on his own recognizance. The 1st District Court of Appeal agreed and reversed the trial court’s order, holding that setting bail in an unaffordable amount constituted a de facto detention and that Mr. Humphrey was entitled to additional due process. On March 25, 2021, the California Supreme Court affirmed the appellate court’s decision. So what does this mean for defendants going forward? It means more consideration of their specific record, along with the charges, in the context of public safety. The Humphrey decision requires an individualized determination of whether a person must be detained, which may include considering alternatives to cash bail.

At its heart, the Humphrey ruling is about equity and justice for all Californians — regardless of their personal means. The changes in the law are a good reminder that defendants are entitled to a presumption of innocence, and that incarceration has immediate negative consequences. During the time spent in custody, a person cannot work or care for dependents. A defendant could lose their home, their job, and even custody of their children. Furthermore, research has shown that pretrial detentions have a disproportionately negative impact on minority communities. Prosecutors must tailor their approach to ensure they are seeking court findings that fully comply with Humphrey’s due process requirements. By adhering to the expectations set by Humphrey, we can be confident that we are advancing a more equitable justice system while protecting the safety of the community.

Renee Rupp (renee.rupp@sdcda.org) is a Deputy District Attorney for the San Diego County District Attorney’s Office. She prosecutes felony domestic violence, elder abuse, and child abuse. She formerly served with the Riverside County Public Defender’s Office, where she was assigned to the Homicide and Death Penalty Complex Litigation Unit.

SAN DIEGO LAWYER | March/April 2022 39

SUCCESS STORY How a Lawyer Referral for a Workers’ Compensation Case Resulted in an Estimated $3.5 Million Settlement

By Elizabeth P. Swiller s many lawyers will tell you, one of the most (if not

When Matthew accepted the case, he immediately filed a

the most) satisfying parts of the job is knowing

motion seeking in-home health care for Eduardo.

that you made a real difference in your client’s life.

This issue was heavily litigated. Fortunately, Matthew was

Making a difference is what attorney Matthew Blancato of

victorious. This win significantly helped Eduardo and his family

Hiden, Rott & Oertle, LLP did in a workers’ compensation case

because it meant full-time, in-home care for Eduardo. The

for his client, Eduardo*.

fact that the court granted this request helped Matthew settle the case with the insurance company in a short period of nine

After being injured on the job, Eduardo was unsure of where to get help. Fortunately, Eduardo turned to the San Diego County Bar Association’s Lawyer Referral & Information Service (LRIS), where he was referred to Matthew. When Eduardo came to

months for an estimated total of $3.5 million. This settlement was in the form of a structured settlement wherein Eduardo received $500,000 immediately with lifetime, tax-free payments thereafter.

Matthew’s office for his free consultation, he was experiencing

With this settlement money, Eduardo was able to purchase

multiple symptoms, including sporadic loss of consciousness,

his family a home, and Eduardo feels that his family is

hearing issues, mood swings, vision impairments, dizziness,

financially secure.

short-term memory issues, cognitive issues, depression, and anxiety. Matthew immediately sympathized with Eduardo and

Matthew understood his client’s injuries, and his role as

wanted to help.

advocate proved to be successful. Matthew states that the

After speaking with Eduardo and his wife Beatriz*, Matthew

inform him that the case was settled for $3.5 million. Matthew

learned that Eduardo was working on a roof installing solar

believes that the settlement was a life-changing outcome for

most rewarding aspect of the case was calling Eduardo to

panels for a company when he lost his balance on a slippery surface and fell onto his back and hit his head. This fall caused

Eduardo and his family; they have expressed their gratitude and appreciation that Matthew fought for what was right.

Eduardo to have a fractured skull, fractured scalp, and

Matthew feels proud to be a member of LRIS. Even though

traumatic brain injury. In addition, Eduardo had multiple

Matthew has been in practice for over 10 years, he feels that

spinal fractures and was in severe pain.

LRIS is a great resource for attorneys and clients alike.

Eduardo was afraid and uneducated as to how the legal

Aside from being an attorney, Matthew enjoys spending time

process worked and what his rights were. Eduardo is a

with his wife and their three children, going to Padres games,

husband and father to two children, and this accident turned

traveling, golfing, going to the beach, and exercising.

his life upside down. Suddenly, Eduardo went from working full time and financially contributing to his family to needing

*Names have been changed to protect confidentiality.

help with day-to-day simple tasks. Beatriz was employed and the family was relying on her income to make ends meet, so she could not stay home to care for Eduardo full time.

Elizabeth P. Swiller (liz@totlaw.com) is a partner at Tot Law, APC.

The SDCBA’s Lawyer Referral and Information Service (LRIS) celebrates its 70th anniversary this spring. Since 1952, the LRIS has connected the San Diego community with qualified, prescreened local lawyers and legal resources. Members of the public can receive a referral to an attorney by calling the Lawyer Referral and Information Service at 1-800-464-1529 or visiting ineedalawyernow.org. Attorneys in San Diego and Imperial counties who would like to join the LRIS referral service may call 619-321-4153 or e-mail esorensen@sdcba.org. SAN DIEGO LAWYER | March/April 2022 41

SDCBA MEMBER PROFILE opening up my practice, I took a few years

PAMELA J. BROWN-MCGILL Law Offices of Pamela J. Brown-McGill

Areas of practice: Wills & Trusts, Bankruptcy, Civil and Small Claims Advising

off and spent some time teaching. To my surprise, I actually enjoyed it — but it really should not have been a surprise. I recall taking a number of assessments over the years that invariably concluded that I was suited to being a teacher. Interestingly enough, it wasn’t until I started looking at my life in hindsight that I realized I am a natural teacher — it’s what I do. Whether I am with family, friends, clients, etc., it really doesn’t matter — I am always looking for a

What initially inspired you to practice law?

teachable moment.

I can totally write a book on this — I actually have come pretty close a time or two. Believe it or not, I have wanted

What is your favorite movie, book, or TV show? Why?

to be an attorney since I was a young girl. Being a child

I have to say, anything science fiction. I have a

of the ‘60s (am I dating myself?) was pivotal in and of

mind that has a hard time shutting off at times.

itself because there was so much happening during that

Any show that takes me out of reality and allows me

decade. The struggle was real, and without a doubt I

to disconnect for even a few minutes works, and sci-fi

knew there was a role for me to play. Although the path

usually fits the bill.

may not have been totally clear, the calling was. However, as we all know, life happens. I got married, had kids, and,

What one skill has helped you to be successful as an

as if that wasn’t already a handful, worked full time at a

attorney, and how could others develop that skill to

job that started me on the path that would eventually

better their practice?

lead me to where I am today. God’s plan.

Treat others as I would like to be treated. I regularly ask myself, “If I were in that position [my client’s position], how

Proudest career moment?

would I like to be treated?” It allows me to take attention

Of course, passing the bar — duh. Man, who came up

off of the problem and place it onto the individual, which

with that bar exam?

allows me to better connect with my clients.

What fills your time outside of work?

What would you most like to be known for?

There is time outside of work?! Truth be told, everyone

While it might sound a bit altruistic, I would like to be

knows I could literally sleep in my office and be

known as the compassionate and caring attorney that

absolutely happy. However, if there is time outside

I feel I really am. Is this a bit of an oxymoron?! It pains

of work, I spend it serving at church and with family.

me when I hear all of the jokes about attorneys being

God has to be first! I have a lot of siblings and a huge

sharks, all about the money, shysters, etc. The reality is

extended family, and I am one of the eldest. Until

that it takes a lot to get up and do the work that we do.

recently, most holidays were spent at my home.

Think about it: we get up day in and day out doing the

Whether we are getting together at the beach

work that others don’t want to do on their own or just

(I am not a beach person, but that is a conversation

can’t. We are it. Sometimes we may have to be tactful,

for another day), hanging on vacation, or gathering for

straightforward, and no-nonsense. However, that

some special occasion, where you find one of us,

doesn’t mean that we do not care or are unfeeling.

you can easily find 10 other family members (or more).

If anything, it’s the exact opposite — we have to care to keep doing the work we do. So, it’s important to me

If I weren’t an attorney, I’d be ... I really don’t know. However, teaching would not be a bad gig. Between graduating from law school and actually

42 SAN DIEGO LAWYER | March/April 2022

that my clients know I care.

THANK YOU TO OUR PATRON & FRIEND MEMBERS WHAT TO DO WHEN YOUR ELECTRONIC DATA HAS BEEN HACKED By Edward McIntyre

awyers can be low-hanging fruit for cyber thieves. We often have a vast treasure of highly sensitive, confidential material — transactions not yet public, lawsuits and patent applications not yet filed, client financial information. In addition, despite mounting ethical guidance that we have an obligation to understand the risks as well as benefits of technology,1 many of us remain behind the technology curve. So what should you do when you have a data breach that involves confidential client information, which you have a duty to protect?2

First, act promptly to stop the breach and mitigate the resulting damage. Preparation and best practices even suggest you should have an incident response plan with specific procedures to respond to a data breach.3 Next, figure out what happened. A post-breach investigation requires that you get sufficient information (1) to ensure the intrusion has been stopped and (2) to evaluate the data lost or accessed. The latter is necessary for accurate disclosure to your clients. Talk to your carrier about the event; it may have additional useful suggestions. Then, you must tell your current clients about the data breach because they are entitled to know about “significant developments in the representation,”4 which surely this event is. In addition, depending on the scope of the breach, you may have to tell your former clients because you have the ongoing obligation to protect their confidential information as well.5 Finally, relax — as best you can.

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

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. For more information about upgrading, please contact mbr@sdcba.org.

Patron and Friend member lists as of March 25, 2022

PATRON MEMBERS Marc D. Adelman Doc Anthony Anderson III Danielle Patricia Barger Hon. Victor E. Bianchini (Ret.) Jedd E. Bogage James A. Bush Adriana Cara Joseph S. Carmellino Andy Cook Steven T. Coopersmith Ezekiel E. Cortez Tricia D’Ambrosio-Woodward Taylor Darcy Warren K. Den John A. Don William O. Dougherty Hon. Bonnie M. Dumanis (Ret.) Alexander Isaac Dychter James J. Eischen Jr. Ben E. Embry Matthew J. Faust Sergio Feria Nicholas J. Fox James P. Frantz Matthew David Freeman Jennifer French Michelle Ann Gastil Olivia J. Gilliam Douglas A. Glass Alvin M. Gomez Van E. Haynie

Nicole L. Heeder Stephen M. Hogan A. Melissa Johnson Stacey A. Kartchner Carla B. Keehn Garrison Klueck Lilys D. McCoy Joseph Jay McGuire Mark M. Mercer Peter P. Meringolo Jillian M. Minter Virginia C. Nelson Ron H. Oberndorfer Anthony J. Passante, Jr. Kristin Rizzo Shannon D. Rose Ana M. Sambold Pamela J. Scholefield Wilson A. Schooley Khodadad Darius Sharif D. Elizabeth Silva David G. Sizemore Hon. Stephanie Sontag (Ret.) Renée N.G. Stackhouse Todd F. Stevens Christopher J. Sunnen Cassandra C. Thorson Thomas J. Warwick Lenden F. Webb Andrew H. Wilensky Karen M. ZoBell

FRIEND MEMBERS Footnotes: 1. State Bar Form. Opn. 2010-179; San Diego County Bar Association Opn. 2012-1; ABA Model Rule 1.1, Comment [8]. 2. See Rules of Professional Conduct 1.6 and Bus. & Prof. Code. Section 6068, subdivision (e). 3. The ABA , for example, publishes a CYBERSECURITY HANDBOOK that is helpful. 4. Rule 1.4 (Communication). 5. Rule 1.9 (c)

Rochelle A’Hearn Alison K. Adelman Alicia Aquino Pedro Bernal Bilse Linda Cianciolo David B. Dugan Ronald Leigh Greenwald Mark Kaufman

Randall E. Kay Matthew J. Norris Anne Perry Kristi E. Pfister Blanca Quintero Stella Shvil Michael A. Van Horne

SAN DIEGO LAWYER | March/April 2022 43

SARAH HARRIS

DIRECTOR OF PROGRAMS & EVENTS

What are your main responsibilities at the Bar? I’m part sheepherder and part orchestra conductor. I oversee the SDCBA’s programs and events, working closely with our Board, Section, Committee, and New Lawyer Division leadership to produce educational programming, including practice area, new lawyer fundamentals, building lawyers as leaders, law practice management, wellness, and diversity, equity, and inclusion. How long have you been working at the bar? 7 1/2 years.

What is your favorite movie and why? Wizard of Oz. I love that although the characters are on a journey seeking something they each think they lack, as friends they draw strength from each other and help one another become better people, ultimately realizing they already have what they are seeking within themselves. What’s your favorite quote? “The two most important days in your life are the day you are born and the day you find out why.” — Mark Twain What do you love about San Diego?

What is your favorite part of your job? Our volunteer leadership. I am inspired every day to work with such passionate, talented, and big-hearted warriors.

I’m a San Diego native and grew up with sand between my toes. Nothing beats a beautiful San Diego sunset over the ocean and the sound of crashing waves. Whenever I need grounding, I know it’s time to take a long walk barefoot on the beach.

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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.

SDCBA member Justice Patricia Guerrero of the California Fourth Circuit Court of Appeal was recently confirmed to the California Supreme Court. Notably, Justice Guerrero is the first Latina ever appointed to the state’s highest court. SDCBA member Hon. Tamila Ebrahimi Ipema was inducted into the San Diego County Women’s Hall of Fame (WHOF) on March 20. The WHOF recognizes the lifetime accomplishments of diverse women whose documented history of professional or volunteer work has made exceptional contributions to the San Diego region and beyond. Nominated by the community, Judge Ipema was selected for her commitment to the advancement of democracy, human rights, and social justice. 2018 SDCBA Past President Kristin Rizzo has been elected to serve as Chair of the City of San Diego’s Human Relations Commission. Additionally, Melissa Johnson, who will serve as the 2023 SDCBA President, was elected Vice President of the County of San Diego’s Civil Service Commission. Both Kristin and Melissa pursued appointed government roles after receiving training through the SDCBA’s Leadership Speaker Series at its inaugural event in 2019 about how to seek appointments to government boards and commissions. SDCBA member Robert Steven Huie was selected by President Biden as Nominee for the United States District Court for the Southern District of California. Robert has been an attorney at Jones Day since 2020 after serving for 12 years as an Assistant United States Attorney in the Criminal Division of the United States Attorney’s Office for the Southern District of California. Commissioner Nadia J. Keilani and deputy district attorneys Sherry M. Thompson-Taylor and Leonard N. Trinh, all SDCBA members, have been appointed by Gov. Gavin Newsom to fill vacancies on the San Diego Superior Court bench.

Passings SDCBA member Douglas “Doug” Henry Swope passed away on Feb. 28 and will be greatly missed. As a Trial Attorney, Doug focused on personal injury and was an active member of the legal community, mentoring fellow attorneys, building partnerships with colleagues, and attending Trial Lawyer College, as well as other professional advancement network groups. Doug was also a member of the San Diego Chapter of ABOTA.

THANK YOU TO OUR SPONSORS: PREMIER SPONSOR:

Annual Spring Celebration of Diversity Sponsors as of April 4, 2022

SAN DIEGO LAWYER | March/April 2022 45

THANK YOU 100% CLUB 2022 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 2022. Your commitment to the San Diego legal community is greatly appreciated. 100% Club member list as of March 25, 2022

Allen Matkins Leck Gamble Mallory & Natsis LLP Ames Karanjia LLP Antonyan Miranda, LLP Appellate Defenders, Inc. Astuno Sabel Law PC Atkinson, Andelson, Loya, Ruud & Romo Balestreri Potocki & Holmes ALC Beamer, Lauth, Steinley & Bond, LLP Bender Kurlander Hernandez & Campbell, APC Best Best & Krieger LLP Blackmar, Principe & Schmelter APC Blanchard Krasner & French Bobbitt, Pinckard& Fields, APC Bonnie R. Moss & Associates Brierton Jones & Jones, LLP Buchanan Ingersoll & Rooney PC Burke, Williams & Sorensen, LLP Burton Kelley, LLP Butterfield Schechter LLP California Western School of Law Casey Gerry Schenk Francavilla Blatt & Penfield, LLP Christensen & Spath LLP Cohelan Khoury & Singer Dean Gazzo Roistacher LLP Devaney Pate Morris & Cameron, LLP Dietz, Gilmor & Chazen, APC District Attorney’s Office of San Diego Donald R. Holben & Associates, APC Duckor Metzger & Wynne ALC Dunn DeSantis Walt & Kendrick, LLP Erickson Law Firm APC Farmer Case & Fedor Ferris & Britton, APC Fitzgerald Knaier LLP Fleischer & Ravreby

46 SAN DIEGO LAWYER | March/April 2022

Gatzke Dillon & Ballance LLP Gomez Trial Attorneys Goodwin Brown Gross & Lovelace LLP GrahamHollis APC Green Bryant & French, LLP Greene & Roberts LLP Grimm, Vranjes Greer Stephan & Bridgman LLP Hahn Loeser & Parks, LLP Henderson, Caverly, Pum & Trytten LLP Higgs Fletcher & Mack LLP Hooper, Lundy & Bookman, PC Horton Oberrecht & Kirkpatrick, APC Hughes & Pizzuto, APC Hurwitz Holt, APLC Jackson Lewis PC Johnson Fistel LLP Judkins, Glatt & Rich LLP JWB Family Law Kennedy & Souza, APC Klinedinst PC Koeller, Nebeker, Carlson & Haluck, LLP Konoske Akiyama | Brust LLP Kriger Law Firm Law Offices of Beatrice L. Snider, APC Legal Aid Society of San Diego, Inc. Lincoln Gustafson & Cercos LLP McCloskey Waring Waisman & Drury LLP McDougal, Love, Eckis, Boehmer, Foley, Lyon & Mitchell Miller, Monson, Peshel, Polacek & Hoshaw Mintz Levin MoginRubin LLP Moore, Schulman & Moore, APC Musick, Peeler & Garrett LLP Neil, Dymott, Frank, McCabe & Hudson APLC

Niddrie | Addams | Fuller | Singh LLP Noonan Lance Boyer & Banach LLP Office of the Public Defender Office of the San Diego City Attorney Paul, Plevin, Sullivan & Connaughton LLP Pettit Kohn Ingrassia Lutz & Dolin PC Pillsbury Winthrop Shaw Pittman LLP Preovolos Lewin, ALC Procopio, Cory, Hargreaves & Savitch LLP Pyle Sims Duncan & Stevenson APC Rowe | Mullen LLP San Diego County Counsel San Diego Unified Port District Schulz Brick & Rogaski Schwartz Semerdjian Cauley & Evans LLP Seltzer|Caplan|McMahon|Vitek ALC Sheppard, Mullin, Richter & Hampton LLP Shustak Reynolds & Partners, PC Siegel, Moreno & Stettler, APC Smith, Steiner, Vanderpool, APC Solomon Minton Cardinal Doyle & Smith LLP Solomon Ward Seidenwurm & Smith, LLP Stokes Wagner, ALC Sullivan Hill Rez & Engel APLC Thorsnes Bartolotta McGuire LLP Tresp, Day & Associates, Inc. Walsh McKean Furcolo LLP Wilson Turner Kosmo LLP Winet Patrick Gayer Creighton & Hanes ALC Wingert Grebing Brubaker & Juskie LLP Wirtz Law APC Witham Mahoney & Abbott, LLP Withers Bergman LLP Wright, L’Estrange & Ergastolo

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