TM
MAY/JUN 2016
2016
SERVICE
AWARD
Charles Dick Jr. Outstanding Attorney of the Year
Hon. Tamila Ipema
WINNERS
Outstanding Jurist
Frederick Schenk
George Brewster Jr.
Community Service
Service by a Public Attorney
Brigid Campo Outstanding Service by a New Lawyer
Olga Ă lvarez Service to Diversity
San Diego Unified School District and the Crawford Academy of Law Public Service by a Law Firm or Agency
+PLUS
Recovery & Redemption: Attorneys Who Battled Addiction and Won Online Behavior Pitfalls & Warnings
We are pleased to welcome to our firm:
Adam B. Levine, Esq. Specializing in serious personal injury, aviation litigation and premises liability.
www.caseygerry.com Dedicated to the Pursuit of Justice since 1947 SERIOUS PERSONAL INJURY, MARITIME, AVIATION, PRODUCT LIABILITY, CLASS ACTION, MASS TORTS AND PHARMACEUTICAL LITIGATION
San Diego | North County | 619-238-1811 | Free Initial Consultation
CONTENTS
Page
25
Page
20 Page
46
Features 19
Federal Court 50th Anniversary Series The long and winding road of the magistrate judges By George Brewster Jr.
20
2016 SDCBA Service Award Winners Recognizing those making a difference in our community
27
Escape from Rock Bottom The epiphany that helped me break free from alcoholism By Denise Asher
29
Lost then Found: Stories of Redemption How recovery led back to the law for two professionals By Jeremy Evans
Departments
Online Behavior Pitfalls & Warnings
34
Caution Your Clients: Online Activity Can Crash Your Case Are your clients aware of the risks of their online behavior? By Michael Hernandez
35
Social Media Lessons from Professional Sports Examples of when employees' social media posts run afoul By Decker Cady
39
Parents Take Charge A few rules to help safeguard you and your children By Renée Galente
7
Tips Narrowing the scope of your representation
8
By Marc Adelman
Halfway Home SDCBA President Heather Riley details the trail so far
11
Deans 45 years of practical training and service to San Diego By Stephen Ferruolo
13
Ethics The "Panama Papers:" a learning exercise By Edward McIntyre
15
Technology Is social media an elephant in the room? By Bill Kammer
41
Ethics & Social Media Some dos and don'ts to live by By Edward McIntyre
17
Why I Belong Get to know SDCBA member Diego John Velasquez
43
An Evening In La Jolla The San Diego County Bar Foundation prepares for its annual event
45
The Heart & Soul of SDVLP Honoring champion volunteers By Teresa Warren
45
Distinctions Recent honors for legal professionals
46
Photo Gallery A look at recent happenings in San Diego's legal community
Follow San Diego Lawyer! sandiegolawyermagazine
@SDLmagazine
Correction: In the Photo Gallery of the Mar/Apr 2016 issue of San Diego Lawyer Mike Lasater's name was misspelled. San Diego Lawyer regrets this error. Issue no. 3. San Diego Lawyer™ (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is 619-231-0781. The price of an annual subscription to members of the San Diego County Bar Association ($10) is included in their dues. Annual subscriptions to all others, $50. Single-copy price, $10. Periodicals postage paid at San Diego, CA and additional mailing offices. POSTMASTER: Send address changes to San Diego Lawyer, 401 West A Street, Suite 1100, San Diego, CA 92101. Copyright © 2016 by the San Diego County Bar Association. All rights r eserved. Opinions expressed in San Diego Lawyer are those of the author only and are not opinions of the SDCBA or the San Diego Lawyer Editorial Board.
4 SAN DIEGO LAWYER May/June 2016
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WHY I BELONG THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION
Diego John Velasquez
Law Offices of Diego John Velasquez Education: University of Houston, B.S.; California Western School of Law, J.D.
Co-Editors
Areas of Practice: Personal Injury and Family Law
Edward McIntyre Christine Pangan
Editorial Board Stephenie Alexander Hali Anderson Craig Benner Elizabeth Blust George Brewster, Jr. Brody Burns Decker Cady Barry Carlton James Crosby Jeremy Evans Michelle Evenson
Frantz Farreau Renée Galente Eric Ganci Michael Hernandez Andrea Monk Erik Nelson Suzanne Schmidt Danwill Schwender David Seto Christopher Todd Teresa Warren
Cartoonist George Brewster, Jr.
SAN DIEGO COUNTY BAR ASSOCIATION
Executive Director & Chief Executive Officer Ellen Miller-Sharp
Director of Outreach Strategy & Chief Communications Officer Karen Korr
Graphic Designer/Webmaster Attiba Royster
Family: My wife Jessica, three children, son-in-law, and grandson in two months. Birthplace: San Antonio, Texas Current area of residence: North County If I weren’t an attorney, I’d be a high school coach. The best thing about being an attorney is helping people. A very close second is the competition inherent in litigating cases. Last vacation: Italy in April 2015. I was a graduate student when my wife and I were married. We never had a honeymoon. Our children came along and they have always been our main focus. In April 2015 we celebrated our 25th wedding anniversary and traveled to Italy. Favorite Web site: United States Tennis Association “USTA.” My youngest daughter plays competitive tennis in the junior division. I am always on the website checking rankings, match times, tournament records, etc. Hobbies: Mountain biking, piano, and playing tennis. Favorite book: The Story of Ferdinand by Munro Leaf. I recently learned that it was also the favorite book of Mahatma Gandhi. Favorite musical artists and/or groups: Billy Joel, Elton John, and The Eagles. Favorite food: Anything Italian.
Publications Editor Jenna Little
Follow San Diego Lawyer! sandiegolawyermagazine
Proudest career moment: Passing the bar exam 21 years ago. It was a team effort. I was married with two small children while attending law school.
@SDLmagazine
401 West A Street, Suite 1100, San Diego, CA 92101 Phone 619-231-0781 bar@sdcba.org Fax 619-338-0042 www.sdcba.org Interested contributors should send brief story outlines to the editor in lieu of unsolicited articles. No one other than the editor is authorized to commission original contributions to San Diego Lawyer™. Send all contributions to above address. San Diego Lawyer™ reserves the right to edit all submissions at its sole discretion. Submission of articles or photographs to San Diego Lawyer™ will be deemed to be authorization and license by the author to reproduce and publish said works within the pages of San Diego Lawyer™, the SDCBA website and social media pages. The opinions expressed by the authors and editors in San Diego Lawyer™ magazine do not necessarily reflect the official position of the San Diego County Bar Association.
FOR ADVERTISING INFORMATION, CONTACT LAURA TARABINI AT (760) 415-7030 OR LTARABINI@YAHOO.COM
Why do you belong to the SDCBA? There are so many services that the SDCBA offers. It is reassuring to know that just about any assistance I could possibly need is available through the Association. How does your SDCBA membership help keep you connected to the legal community? There are so many opportunities to connect and get involved with the legal community. I especially enjoy being involved with the high school mock trial competition. The students work hard for months to prepare for the tournament in February. The level of performance gets better every year. My two oldest kids participated in high school. My daughter is now a paralegal and my son has taken the LSAT and plans to attend law school next year. My youngest daughter is excited about participating. The SDCBA does a wonderful job of organizing this annual event which inspires so many students. What makes San Diego’s bar so special/unique? Members of the San Diego Bar are extremely generous. So many attorneys freely share their time, office space, equipment, trial experiences, and other insights. It is very inspiring.
Read the Digital Edition Online! Read San Diego Lawyer online at www.sdcba.org/sdldigital
May/June 2016 SAN DIEGO LAWYER 7
SAN DIEGO COUNTY BAR ASSOCIATION
president Welcomed attendees to Annual ALLEN MATKINS LLP Awards Luncheon & Celebration of Community Service.
partner
I
s it just me, or has this year been a whirlwind? It seems like just yesterday I was telling my family, friends and firm that I was taking on the role of President, and now I am nearly half done with my term. There is a lot going on at the Bar – more than I ever imagined before I stepped into this role. From volunteer groups to sports groups, career development circles to mixers, it is non-stop! I could not be more proud of how we serve one another and the public – all while managing our other personal and professional pursuits. In this issue of San Diego Lawyer, we take a look at our inspirational service award winners. These individuals inspire me greatly, but I want you all to know that I am inspired by each and every one of you who dedicates yourselves selflessly to the betterment of the practice of law, the Bar Association, the lives of our fellow citizens, and San Diego as a whole. At the end of the year, I know I will not have the space or time to thank everyone I want to, so I’ll steal some room now, but know there are lots more thank yous to come!
Gave opening remarks at ABA meeting in San Diego.
WIFE , FRIEND
parent Reenacted 22 Lewd Chinese Women with Pan Asian Lawyers of San Diego.
• To Alvin Gomez and the entire Judicial Election Evaluation Committee – Your efforts to help educate the public are truly vital, and your hard work does not go unnoticed.
Learned about the latest CEQA developments.
• To my colleagues at Allen Matkins, and especially, our amazing marketing team – For making sure that not one ball gets dropped or even slightly fumbled as my schedule continues to get busier and busier. • To all of San Diego’s law related organizations – what an amazing season it has been! I have loved all of the dinners, the awards, and the installations. I always have fun at these events, and am constantly blown away by the generosity and creativity of your organizations. • To my parents – who let me forget about my day-to-day and be a kid again at Walt Disney World. Thank you for a fabulous trip – what a way to celebrate a 50th wedding anniversary! The boys and I will never forget the time we got to spend together, especially since it was my first ever “unplugged” vacation. While I may have spent more time on Space Mountain than any of our local mountains in the last year, I wouldn’t change the memories of this trip for anything in the world. Here you can see a bit of what I have been balancing over the last few months. Parts of it probably look familiar since each of us works hard to serve our profession, our practice, and our people in our own way each and every day.
Heather Riley, 2016 SDCBA President
Signed the beam at the topping off ceremony for new San Diego courthouse.
Convened the SDCBA board for monthly meeting.
ALLEN MATKINS LLP
WIFE , FRIEND
partner
parent
Got a project approved by , FRIEND the San Diego CityWIFE Council!
parent
Celebrated Mother’s Day at Petco Park.
Networked at a BIA San Diego event.
Quick breakfast meeting with new client at Harbor.
Attended community planning group meetings.
Conducted due diligence analysis of new development sites.
Filled out timesheets!!!
Spent Spring Break at the “Happiest Place on Earth” with my boys and parents.
Saw Alton Brown Live – Eat Your Science for Jason’s birthday.
Showed Flat Stanley the best of San Diego for our cousin Tyler in New York.
Watched Sam play t-ball. May/June 2016 SAN DIEGO LAWYER 9
BY STEPHEN FERRUOLO
DEANS
USD Law Clinics: 45 Years of Practical Training and Service to San Diego Applauding the law clinics' past and future accomplishments
T
his year, as we mark the 45th anniversary of the USD School of Law’s Legal Clinics, is a good time reemphasize the importance of clinical legal education and its vital role both training our students and serving the legal needs of the San Diego community. USD’s legal clinics began in 1971 when the State Bar of California first allowed law students to be certified to represent clients in court proceedings. As with many of the best initiatives in the history of our law school, the interest in establishing our first clinics began with our students, but was quickly endorsed and supported by our faculty. Since then, our clinics have developed into a full-service law office that is integral to our curriculum and educational mission. Although the services offered by our Legal Clinics have expanded, the reasons for which they were established have remained the same: to provide high quality practical training to law students, enable them to develop expertise in specific practice areas, teach them professional responsibility and ethical practice, and give students the opportunity to apply the knowledge they learn in doctrinal courses to solve the problems of clients. The Legal Clinics also represent USD’s commitment to serve the legal needs of San Diego’s diverse communities. In 2015, we trained well over 150 interns, who logged 16,000 hours of free legal services, while closing 500 cases benefitting low income individuals and families. Let me highlight some of the recent developments in our Legal Clinics. Next fall, in partnership with the statewide Employment Law Center, a program of the Legal Aid Society of California, we will be establishing a Workers’ Rights Clinic. In response to growing market demand and student interest, we recently established a new labor and employment law concentration. The Workers’ Rights Clinic will enable our
Stephen Ferruolo students to learn and practice skills valuable for careers in that field. Participants in the clinic will assist clients in such matters as unemployment insurance, wage and hour issues, and employment discrimination and represent them before such agencies as the California Unemployment Insurance Appeals Board and the California Labor Commissioner. Our Veterans Clinic, which we opened in 2012 with a focus on assisting veterans with their disputes with for-profit educational institutions over the use of GI Bill funds and related loans, was expanded last year. The clinic now also assists veterans seeking to upgrade their characterization of discharge from the military (and thus qualify for veterans’ benefits, including the GI Bill and disability) and veterans appealing disability claims with the Veterans Administration. One notable example of the service being provided by our Veterans Clinic involved a homeless veteran who, after serving honorably for 14 years, had received an Other Than Honorable Discharge due to alleged drug abuse related to undiagnosed mental health issues that developed during his years of military service. Law students, under the direction of Bob Muth, the clinic’s supervising attorney (who served as Senior Defense Counsel for the Marine Corps in Iraq), successfully pursued a recharacterization of this discharge enabling the veteran to apply for VA disability benefits. After months of preparation for a hearing before the Board of Veterans Appeals, our students succeeded in
convincing the VA to qualify the veteran for disability benefits. As a result of their advocacy, the veteran received a large retroactive benefit payment, as well as a monthly disability benefit, and is no longer homeless. This is just one example among many. During the last twelve-month period, the Veterans Clinic has assessed 144 potential clients and accepted 40 veterans for legal representation. Equally exciting is the work now being done by our Entrepreneurship Clinic (E-Clinic). Under the guidance of alumni Faye Hunter, Dennis Doucette and Ian Kessler, we have refocused the mandate of our E-Clinic to target the high technology business startups and other emerging growth companies so important to the San Diego economy. The E-clinic’s initial clients have been companies founded by student entrepreneurs at USD’s School of Business, including an innovative drone technology company and several startups developing new social media applications. Under the direction of Sebastian Lucier, the E-Clinic’s supervising attorney (who practices corporate law at Mintz Levin), law students are now working side-by-side with entrepreneurs, helping them structure their business entities, draft agreements, raise funding and protect their intellectual property. Next year, the E-Clinic will be expanding its services to assist student entrepreneurs at other local San Diego universities. As the demands for both practical legal training and pro bono legal services continue to grow, USD School of Law remains committed to continuing to enhance and expand our Legal Clinics to meet these needs. Please join me in congratulating all the alumni of our Legal Clinics for their 45 years of service to the San Diego community. Stephen Ferruolo (lawdean@sandiego.edu) is Dean of the University of San Diego School of Law.
May/June 2016 SAN DIEGO LAWYER 11
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BY EDWARD McINT YRE
ETHICS
The “Panama Papers” A learning exercise
M
acbeth turned to Duncan and Sarah. “I asked you to have a cup of coffee with me to talk about the ‘Panama Papers’ caper.” Duncan looked up. “You mean the 11 and a half million individual files taken from that Panama City law firm. Then given to the German newspaper?” “Precisely. Mosack Fonseca held itself out as specializing in establishing offshore bank accounts.” CARTOON BY GEORGE BREWSTER, JR. Sarah added: “Using shell “Precisely my point. As digital storage companies. Now almost forty-years’ of gets ever cheaper, it’s easier to store it all. its clients’ files are being published every Forever. Instead of taking the time to review day.” material periodically and destroy.” “I want to talk about any ethical Sarah asked, “Are you suggesting that implications for our firm. How can we learn we have an ethical duty to rethink how we from this episode?” store and maintain client information?” Duncan set his cup down. “What do you “The most recent authority and guidance mean, Uncle?” all say that we have to understand the “We all agree, I should hope, that we benefits and risks of technology in serving have a strict duty to protect our clients’ clients. Especially when it comes to client confidential information.” confidential information. ” Sarah and Duncan nodded in unison. “So, just because digital storage’s “Fine. Let’s start with what we know.” convenient, you’re suggesting that doesn’t Sarah spoke: “The New York Times mean we can use it without understanding reported that an anonymous whistlethe implications for our clients.” blower called a reporter at the Süddeutsche Duncan interrupted. “I get it. If we Zeitung and began delivering the destroy even the digital stuff when it’s no equivalent of 2.6 terabytes of data. The 11.5 longer needed, no one can steal it. Leak it million individual files.” to a newspaper. Whatever. ” “If we assume The Times story’s accurate, Sarah added: “That raises the question of what does that tell us?” encryption. Should we encrypt our digital Sarah again: “More likely an individual files?” or individuals at the firm copied the files. Duncan shook his head. “Boy, what a That it wasn’t a cyber hack-job. I have one pain. Who’d keep all the passwords?” question.” Macbeth cautioned, “Sarah’s question’s “Please, ask.” spot on. Certainly something we should “Why did the firm still have 40 years’ consider. Ask our IT consultant.” worth of files? Was that really necessary to Sarah added: “Another question for our represent its clients?” expert. Downloading 2.6 terabytes of data? “Excellent question. One we should ask That takes time. Lots of effort. You don’t just ourselves. How long do we need to keep put that much stuff on a thumb drive in an client information? Some documents — afternoon. ” trust and estates instruments perhaps — “Good observation.” we have to keep for a long time. But other “What kind of systems should a firm have things?” in place to detect that kind of activity?” Duncan looked up. “Our practice is to “Another good question. Anything else scan files when a matter ends, store just the we can learn?” digital copy and destroy all the paper.”
“Well, Mosack Fonseca doesn’t have offices everywhere. None in the United States, for example. I’m willing to bet that other law firms referred some, likely a lot, of its clients. Maybe some from here. Certainly some in Europe. Those firms may even have sent client information to Panama that then got leaked from the Mosack Fonseca files.” Duncan spoke. “Geez. Hadn’t thought of that. How embarrassing.” Macbeth added. “Embarrassing, of course. But do we also have an ethical duty, when recommending another firm to a client, to know how securely it treats its clients’ information?” “You mean,” Sarah asked, “the way we make sure that a lawyer to whom we refer a client is competent for the client’s matter?” “Indeed. Since understanding the risks and benefits of technology is now an element of the duties of both competence and confidentiality, cannot our clients rightly expect us to inquire whether the other firm will protect their confidential information?” Sarah smiled. “The way you put the question, Macbeth, it seems to answer itself.” “I think so, too.” Editor note: Amendments to ABA Model Rules 1.1 (Competence) and 1.6 (Confidentiality) and State Bar Formal Opinions 2010-179 and 2015-193 all address the ethical duty to understand evolving technology in serving clients.
Edward McIntyre (edwardmcintyre1789@gmail.com) is an attorney at law and Co-Editor of San Diego Lawyer. No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee. May/June 2016 SAN DIEGO LAWYER 13
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BY BILL KAMMER
TECHNOLOGY
Is Social Media an Elephant in the Room? Attorneys must recognize social media outlets as sources of information
O
ur profession faces several rapidly-evolving discovery challenges. Recently, some foolishly tried to ignore email, but that strategy failed. Some were oblivious to the ESI stored on mobile devices such as smart phones and tablets until they realized that those were a treasure trove of possibly relevant information. For instance, with the parties’ consent, I recently reviewed the contents of an older smart phone with a limited memory yet found it contained about 18,000 text messages and 24,000 photographs. Not all the contents of these mobile devices are necessarily discoverable, much less relevant, but we can never eliminate the possibility that some can have a meaningful impact on our clients’ claims and defenses. Today we have to consider also the possibility that various storehouses of social media contain information of similar magnitude and possible relevance. Americans younger than 40 are frequent users of social media applications such as Twitter, Facebook, and Instagram. They create vast amounts of information meriting examination. Preserving that information may be our clients’ responsibility, but collecting and reviewing it will be ours. And the tasks will not get easier. Facebook maintains over 300 petabytes of data about its one billion daily users, and that storehouse grows by over 600 terabytes of information daily. If you recall that one gigabyte might contain 50,000 pages, you can math it out yourself. Pew reports that nearly two-thirds of American adults use the various social networking sites. That figure is up from 7% in 2005 and suggests the need for careful attention to these sources of discoverable information, particularly in personal injury, employment, and family law cases. For instance, recent reports suggest that Facebook evidence is being used in two-thirds of family law cases. You will not be surprised that 90% of young adults use social media, but you might not have guessed that 35% of those over 65 also do. There are no significant usage differences between men and women or among racial and ethnic subgroups. We can no longer ignore the discovery material available from social media sites. Perhaps 70% of online adults use Facebook, and 70% of them
do so daily. So let’s take Facebook as an example. In a recent case, a party’s Facebook account contained almost 3,000 photographs. The Facebook Help Center lists about 70 categories of information it stores including messages, chat logs, photos, the metadata of photos, various postings, friends, followers, removed friends, etc. Much of that information can be downloaded in an easily-obtained report. Besides that report, Facebook also maintains an “Activity Log” for every user, dating from the account’s establishment. It contains even more information, basically a complete history of the user’s activity on Facebook from posts to comments, to apps used, to anything ever searched for or viewed. Though that information cannot be downloaded directly, a party may be required to preserve it and can be required to produce it in response to an appropriate. We can’t fail to consider these sources of information. There are alternatives to Facebook and alternative messaging systems. Twitter may also be a fertile source of information. A recent report stated that Twitter was logging approximately 40 million tweets per day, many of which might be available to discovery. Similar to other sources of stored data, the information on social media sites is not diminishing but increasing at an alarming rate. We can’t ignore it, but we are challenged to deal with it. Early cases allowed some parties direct access to the internet accounts of their opponents. However, later cases seldom permit unfettered access. Either a user will directly obtain, review, and produce that party’s information, or the parties will stipulate to the appointment of an intermediary who can review the downloaded information. Chronological boundaries can limit the information to review and produce, and privileged and privacy reviews are also possible. Attempting to obtain that evidence directly from the media site is not a viable alternative. That course will probably not be available because the media giants will seek the protections afforded them by the Stored Communications Act, 18 U.S.C, § 2701 et seq. This is a brave new world, and we must deal with its realities. I said in an earlier article that discovery was not getting easier, and social media bears that out. Bill Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP.
[…] the information on social media sites is not diminishing but increasing at an alarming rate. We can’t ignore it, but we are challenged to deal with it. May/June 2016 SAN DIEGO LAWYER 15
BY MARC ADELMAN
TIPS
Narrowing the Scope of Your Representation The importance of tempering client expectations from the outset
M
eeting a client’s expectations on any given matter is the biggest challenge lawyers often face. Failure to meet those expectations will often leave the client wondering if you did your job, kept your promises, or if your actions met the standard of care. Setting the tone for those expectations starts at your very first interaction with the client. You should not underestimate the import of that initial interaction. Becoming familiar with the client, the facts, and articulating the potential direction and potential outcomes of the case is of primary importance. Take the time to accomplish these critical tasks. Be careful not to assure a result and be mindful of the language you include in your fee agreement. For example: “Nothing in this agreement should be construed as a promise about the direction, duration or outcome of your matter. I cannot make such a guarantee and expressly state that I have not. Any comments made by me are expressions of opinion only and do not constitute any assurance, promise or guarantee.” Exaggerating the monetary value of a claim, underestimating the cost of a defense, promising a favorable result, or predicting the length of time the matter will take, frequently comes back to haunt the promisor. Not only should you temper client expectations on the duration and outcome of the case, but you must also confine and/or narrow the scope of your representation, defining your duties. Rule 1.2(c) of the ABA Model Rules of Professional Conduct permits a lawyer to “limit the scope of representation if . . . reasonable under the circumstances and the client gives informed consent.” This can consist of limiting representation to certain kinds of transactions, duties, or stages of litigation. You must effectively communicate “[t]he scope of the representation and the … fee and expenses . . . .” (Rule 1.5(b)). While often diverging from the ABA
Model Rules, the California rules similarly address the importance of limiting the scope of representation. Although Rule 3–400 prohibits a California attorney from “prospectively limiting the member’s liability to the client for the member’s professional malpractice,” it does not prohibit reasonably limiting the scope of your representation. Be specific and clearly articulate what your representation will
Exaggerating the monetary value of a claim, underestimating the cost of a defense, promising a favorable result [ … ] frequently comes back to haunt the promisor. entail. Typical language in an agreement may read: “We propose to investigate/defend and prepare the case against all parties that may have legally been the cause of/or suffered damages. The firm will prepare and file necessary court documents on your behalf, take depositions, statements of witnesses, otherwise conduct what is known as ‘discovery,’ and appear on your behalf in court. We will also be responsible for preparing for trial or arbitration and carrying on any negotiations for settlement, which you will authorize.” After stating what you will be doing for the client, don’t hesitate to let them know what you won’t be doing. Often times, an unanticipated cross-complaint could put an entirely different perspective on whether or not you will succeed and whether or not you will ever get paid. Are you obliged to defend a cross-complaint under your existing contingency fee agreement? If
not directly addressed in your written agreement you could be bound to defend the client to the bitter end. For example, in Nichols v. Keller, the plaintiff sought an attorney for a worker’s compensation claim, but later sued the attorney for failure to properly advise him about the possibility of third-party claims. (15 Cal. App. 4th 1672 (1993)). The court stated that a worker’s compensation attorney should be able to narrow the retention to a compensation claim if the client is made aware that there may be other remedies, which the attorney will not investigate, and that other counsel should be consulted. (Id. at 1684; Cal. Bus. & Prof. Code § 6147). Thus there are situations where you may limit the scope of your representation, but you need to explicitly communicate what are and are not your responsibilities. The following language would work in a personal injury contingency fee agreement: “This fee is not set by law but is negotiable. This fee agreement does not cover the handling of any worker’s compensation claim, any administrative claim not required by statute, any counter or cross-complaint stemming from the facts of this case, the filing of any appeal before or after trial, the filing of any writ, restraining or protective order, and/or any representation stemming from any medical collection, subrogation or lien collection matter proceeding against you.” The concept is simple: define your responsibilities, thoroughly discuss them with the client, have the appropriate language in your fee agreement, and clearly recite them. You will thank yourself later if you include specific and effective language about the scope of your duties in your fee agreement. Marc Adelman (adelmanmd@aol.com) is a past president of the San Diego County Bar Association and an attorney at law. May/June 2016 SAN DIEGO LAWYER 17
LOOKING TO GET HIRED MORE OFTEN?
There are approximately 1,300,700 licensed lawyers in the United States and over 250,000 in California.
How will potential clients find you? Heighten the visibility of you and your practice. Join the Lawyer Referral and Information Service to get referrals and potential clients. Contact Michelle Chavez at 619.321.4150 or mchavez@sdcba.org. Learn more at www.sdcba.org/joinlawyerreferral
SAN DIEGO COUNTY BAR ASSOCIATION
in San Diego
The Long and Winding Road of the Magistrate Judges By George Brewster Jr.
I
t is frequently said, with all due respect, that the best judicial gig in the County is that of a Federal Magistrate Judge. That was not always the case. The position of Magistrate was established by Congress in 1968, two years after the Southern District of California was created. Prior to that time — and since the 1790s — the federal district court judges were assisted by Commissioners, who issued warrants, conducted hearings and established bail, among other duties. They were not, however, involved in civil cases. To provide relief to the District judges, Congress established the Magistrate position in 1968, although the Judicial Conference initially limited the appointments to five districts as part of a pilot program. The only west coast program was in the Southern District of California; the rest were in the District of Columbia, the Eastern District of Virginia, the District of New Jersey and the District of Kansas. On July 1, 1969, three Commissioners in the Southern District were appointed Magistrates: Elmer Enstrom Jr., Richard “Bish” McKee and J. Edward Harris. Harris, now 85, started his legal career in 1960 in Chattanooga, Tennessee, before moving to Phoenix. During a job hunt in Southern California in the summer of 1966, a friend urged Harris to see Judge James M. Carter, a Harry Truman appointee who in September of 1966 would become the first Chief Judge of the newly created Southern District of California. “I went to see him, he took me right in. He didn’t know I was coming … I just walked in, and his secretary said, ‘He’ll see you,’ since he sees anybody that will come in. So I went in and talked to him about five minutes … and we said goodbye and I thought that was the last of it. I was back in my office about ready to give up on finding anything in San Diego when my secretary [told me I had] a call from Judge Carter…. He was right down to business. He said, ‘Harris, how would you like to be a U.S. Commissioner while you’re waiting to take the bar in California?’” Harris met again with
Judge Carter and accepted, swearing in as a U.S. Commissioner in August 1966 (he retired as a Magistrate in 1984). Harris described Carter as progressive and down to earth. Superior Court Judge Victor Bianchini (Ret.) was a law clerk for Judge Carter from 1963 to 1964, and later served as a U.S. Commissioner (196869) and then as a part-time Magistrate Judge from 1974 until 1982, when he was appointed to the Municipal Court. He said Carter “was a magnificent man and he had a great presence about him. He was probably
“[Harry] McCue was by far the best settlement judge that I knew … he handled so many major cases and settled so many major cases he’s really to be commended with all of the effort and work he was able to get done and what he could accomplish.” – J. Edward Harris 6 foot 2 or 6 foot 3. He had a booming voice and he was … an incredibly fair judge and all of the litigators in this town loved him. He had this manner about him that inspired confidence in his decisions.” Both Harris and Bianchini noted that one of the big differences between the U.S. Commissioner position and that of Magistrate is that the Commissioners were paid by the case. Harris said that each commissioner had a salary cap of $12,000 per year, and with the amount of work in San Diego a Commissioner would reach that cap in about six months, working the remainder of the year for free (or the work would be picked up by a different Commissioner). Commissioners, like the Magistrates that replaced them, were appointed by the local District Court judges. Harry McCue was appointed Magistrate in late 1970, and was Presiding Magistrate
Judge from 1984 to his retirement in 1993. During his term, the title “Magistrate” was upgraded to “Magistrate Judge” by way of the Judicial Improvement Act of 1990, in part to stress that the position should be treated with all due judicial respect. “When magistrate judges first came into the picture they were not treated very well in some places,” said Harris, citing instances in other jurisdictions where the magistrates were not allowed to wear robes. However, in San Diego, “the judges were totally committed to utilizing a Magistrate to its fullest.” Harris credits McCue with pushing for the Southern District to allow the use of Magistrates as the trial judge in misdemeanor criminal trials by consent of the parties, following a successful program in the District of Oregon in 1971. With the increase in civil case work came a push for settlement conferences, which Harris said was spearheaded by McCue, who was “by far the best settlement judge that I knew … he handled so many major cases and settled so many major cases he’s really to be commended with all of the effort and work he was able to get done and what he could accomplish.” Bianchini concurred. “I had a good friendship with Harry McCue who was the quintessential settlement judge and he was really something to watch. He was brilliant … and he would smoke cigars during the conferences. There was a joke within the bar that he would smoke the cigars so that everybody would settle because they would want to get out of the room, but it was his brilliance that carried the day.” The use of cigar smoke “wasn’t a joke” recalled current Presiding Magistrate Judge Nita Stormes. “I can remember being in those settlement conferences and as a very young assistant U.S. attorney in the civil division…being in a room that was not much bigger than the conference table and Judge McCue would be there with his cigar …. But, he understood all of the moving parts and he was a real master at settling cases.” Continued on page 43 May/June 2016 SAN DIEGO LAWYER 19
2016 SERVICE AWARDS San Diego Lawyer congratulates all of the 2016 San Diego County Bar Association Service Award winners. Winners were asked the following questions: Why do you serve? What advice would you give others to inspire them to serve? Who or what inspires you to serve? Describe a moment that inspires you to continue to serve. How do you find the time to give back? How does serving the community benefit the legal profession? If you could magically change one thing in the world, what would it be? See their answers on the following pages.
View a special extended version of this feature, including extra commentary, videos and additional photos online at
www.sdcba.org/2016winners
Photos by Jason de Alba
Outstanding Attorney of the Year
CHARLES DICK JR. THE LAW OFFICE OF CHARLES H. DICK, JR.
Why serve? Service should come before self, and we who have been given so much need to use the tools we have for improving the condition of those around us. Serving other people is the highest calling I know. Advice to serve: A lawyer’s success greatly depends on one’s reputation, and I know no better way to create a positive image in the community than by getting outside the office and participating in community service. Opportunities for doing good abound, and the satisfaction that comes from helping others is immeasurable compensation. Inspiration to serve: Long ago, I came to realize that when it is my time to leave, few will remember my name, but I hope there will be some whose life was better because I was here for a little while.
LAW SCHOOL: UNIVERSITY OF IOWA YEARS IN PRACTICE: 49
Inspirational moment: There was a day when I walked out of court with my Casa Cornelia client who had just been granted amnesty. He looked at me tearfully and said that day was his second birthday — the day when life began anew. Now, he could get a job, marry, have a family, and I had been part of a team that made that possible.
Most rewarding career moment: I have been fortunate to have a number of younger lawyers tell me I helped make them the professionals they are today. They recount incidents I cannot even remember, but their expressions of gratitude have left an indelible impression on me. Finding time to give back: Life is a balancing act, and we all devote time to the things we deem important. The task is to identify the things that are important, and then organize one’s day to do those things that bring the greatest satisfaction. Benefit to the legal profession: When we engage in community service work, we improve the likelihood that the lay public might come to understand something important: it is not the money, but rather the concept of serving others that motivates most lawyers. If you could magically change one thing: I would wipe away the impulse of people to be critical, judgmental, and bound up in hateful thinking. We need more open-mindedness, more caring, and more sharing, and we need less self-righteousness.
Outstanding Jurist
HON. TAMILA EBRAHIMI IPEMA
SAN DIEGO SUPERIOR COURT Why serve: I was very lucky to be able to get out of Iran a few months before the Iranian Revolution of 1979. Many of my friends and family members were not so lucky. I am very conscious of the opportunities available to me in this great country, and I feel extremely grateful for them; and I will continue to pay it forward with a heart of joy.
were not for this attorney believing in me and encouraging me to go to law school.
Advice to serve: The most beautiful gift you can give is the gift of your time, your presence, your love; a gift of the best of yourself, which is much deeper than any material things.
Finding time to give back: Fortunately, I have a very understanding husband who knows serving others makes me happy and he empowers me to be the best that I can be.
Inspiration to serve: Justice Judith McConnell is an incredible woman, who is my role model, and inspires me to serve. Inspirational moment: I came to the U.S. after college. English was my third language; I never believed that it was possible for me to become a lawyer. The Iranian Revolution of 1979 had forced me to study law on my own to find a way to help save my family. An immigration attorney who noticed what I had done all on my own, encouraged me to apply to law school. I would not be a judge today if it
Most rewarding career moment: When I ruled against a litigant in a case, and he thanked me as he was leaving the courtroom. He said, “Thank you for explaining your decision. I understand why you ruled the way you did; and you are fair.”
Benefits to the legal profession: Community service helps lawyers learn how to lead, communicate, do decision-making, encourage and motivate others, and make a meaningful connection to another human being. If you could magically change one thing: I would provide free education for everyone in the world. Through education we learn to cherish our differences and to learn from each other to create a better world free of war and all its ugliness.
LAW SCHOOL: UNIVERSITY OF LOUISVILLE; GEORGETOWN UNIVERSITY LAW CENTER YEARS ON THE BENCH: NEARLY 11 May/June 2016 SAN DIEGO LAWYER 21
Service to Diversity
OLGA ÁLVAREZ
HEISNER ÁLVAREZ, APC Why serve? I want to pay tribute to those who have come before me and have opened up so many opportunities that permitted me to succeed. The only way to thank them is to attempt to make this world a better place. Advice to serve: For those issues that tug at your heart or gut, those feelings should be turned into action, because if you don’t answer the calling, who will? Inspiration to serve: I am committed to improving the number of women and women of color in the legal profession. Women comprise 38% of attorneys and women of color comprise 6% of attorneys in San Diego law firms. (See, Lawyers Club Equality Survey 2015.) While nationally, over 50% of women and 66% of women of color will leave law firms within five years. These statistics inspire me to serve.
LAW SCHOOL: UNIVERSITY OF SAN DIEGO SCHOOL OF LAW YEARS IN PRACTICE: 13
Inspirational moment: I was attending a class shortly after the birth of my twins and I was discussing with a female attorney childcare. The next day, a new female attorney at the class wanted to ask me a question. She said, “Can I whisper it in your ear?” I permitted her to do so.
She said, “I am pregnant and I am scared to tell my law firm.” This moment alone inspires me to give back. Most rewarding career moment: Helping a family regain its financial security and control over assets after the father had tragically become incapacitated and was unable to work. Finding time to give back: Giving back to the community builds my practice. I don’t see them as mutually exclusive. People get to know me in a non-intimidating arena, and ultimately, we build a relationship. Benefits to the legal profession: When the community witnesses lawyers contributing to society in positive ways, those actions build confidence in the legal profession and our judicial system. If you could magically change one thing: A strict adherence to the Golden Rule, “Treat others the way you would like to be treated.” If put into practice by everyone, it strips away all forms of discrimination, leaving room for fairness, justice, and harmony.
Community Service Award
FREDERICK SCHENK
CASEY GERRY SCHENK FRANCAVILLA BLATT AND PENFIELD, LLP Why serve: When I was a child, the kindness afforded by my community allowed me to enjoy opportunities to participate in ways that my family would not have been able to provide. I always have felt a duty to return that gesture of good will. Advice to serve: Serving requires a sense of obligation and compassion along with the realization that the most valued leaders do not only give of their financial resources, but also share their time and talents, as well. Inspiration to serve: My parents were immigrants who worked hard both to learn English and to earn a living. My parent’s work ethic allowed their two children to succeed in America in ways they never would have imagined while living in Eastern Europe in the 1930s and 40s. Their dedication and spirit of service continue to inspire me every day. Inspirational moment: The Trial Lawyers Care Pro Bono project which enabled trial lawyers to help families who were 911 victims.
22 SAN DIEGO LAWYER May/June 2016
Most rewarding career moment: Providing pro bono representation to a husband along with the surviving parents of a woman who was killed during the 911 attacks on the World Trade Center building. The young Muslim woman was visiting the Windows on the World restaurant on the 106th floor when the attacks occurred. I arbitrated the case for the family in New York and obtained a significant award for them. Finding time to give back: I have the strong support of my family who shares a passion for wanting to help repair the world. My work day often starts hours before others wake up and late into the evening, but that is often what it takes to accomplish one’s goals. Benefit to the legal profession: Engaging our passion and talents for the greater good enables the legal profession to be far more appreciated and respected. If you could magically change one thing: To rid the world of intolerance of people’s differences. The cost of intolerance is devastating while the inherent value of greater respect for our differences is immeasurable.
LAW SCHOOL: UNIVERSITY OF SAN DIEGO SCHOOL OF LAW YEARS IN PRACTICE: 37
Serviceby byaaPublic PublicAttorney Attorney Service
GEORGEBREWSTER BREWSTERJR. JR. GEORGE
OFFICE OF THE COUNTY COUNSEL OFFICE OF THE COUNTY COUNSEL Why serve? Writing was always at the top Why serve? Writing always atfocusing the top on of my passions, andwas in particular ofstories my passions, and in particular focusing on of redemption — both from the past stories of redemption — both from the past (especially legal history) and the present. I love (especially legal history) and the present. I love playing a role in helping someone move out of playing a role in helping someone move out of a rut, or avoid getting into one. At the end of a rut, or avoid getting into one. At the end of the day, I don’t know if I “serve” so much as “serve the day, I don’t know if I “serve” so much as “serve a purpose” — that is, try to draw attention to a purpose” — that is, try to draw attention to things I think are important. things I think are important. Advice to serve: Be positive. Be passionate. Be Advice to serve: Be positive. Be passionate. Be part of the solution. part of the solution. Inspiration to serve: My parents for instilling Inspiration to serve: My parents for instilling meaalove loveofoflanguage, language,travel, travel,public publicservice service ininme and history, and my wife and kids for keeping and history, and my wife and kids for keeping megrounded groundedand andgiving givingme mevery verypersonal personal me reasons for wanting to make this a betterworld. world. reasons for wanting to make this a better
LAWSCHOOL: SCHOOL: LAW DRAKEUNIVERSITY UNIVERSITY DRAKE YEARSIN INPRACTICE: PRACTICE: YEARS 33YEARS YEARSIN INIOWA, IOWA, 33 30 IN INCALIFORNIA CALIFORNIA 30
Inspirationalmoment: moment:Every Everymoment moment Inspirational workingwith withthose thosewith withspecial specialneeds. needs.My My working oldestchild childisisdevelopmentally developmentallydisabled, disabled,and and oldest through her activities I see kids and adults who through her activities I see kids and adults who are just happy in the moment. There is no mean are just happy in the moment. There is no mean purpose,orordesire desiretotowin winatatthe theexpense expenseofof purpose, others.ItItisispure purehappiness happinessjust justtotobebethere, there,and and others. absolutesatisfaction satisfactionwithout withoutregret regretororworry. worry. absolute Thereare aresosomany manypractical practicalstruggles strugglesforforthe the There developmentallydisabled disabledcommunity community——and and developmentally
we need to do better to help them — but they wecan need to do to help them — this but singular they teach us better all about appreciating can teach us all about appreciating this singular moment in time. moment in time. Most rewarding career moment: Being Most rewarding career moment: Being recognized for service is very rewarding. From recognized for service is very rewarding. From a legal career perspective, I would have to say a legal career perspective, I would have to say being accepted into membership by the San being accepted into membership by the San Diego Chapter of ABOTA in 1998, as its first Diego Chapter of ABOTA in 1998, as its first public attorney member. public attorney member. Finding time to give back: I think we mislead Finding time to give back: I think we mislead people by encouraging “balance.” It is all people by encouraging “balance.” It is all about priorities, and time management. More about priorities, and time management. More importantly, I have always tried focus importantly, I have always tried to to focus onon things I am truly interested in — and for those, things I am truly interested in — and for those, I I always manage to find the time. always manage to find the time. Benefits the legal profession: Lawyers Benefits toto the legal profession: Lawyers have and always will have an image problem, have and always will have an image problem, mainly because often appear at the worst mainly because wewe often appear at the worst moments someone’s Showing better moments of of someone’s life.life. Showing ourour better nature by coaching, getting involved in the arts, nature by coaching, getting involved in the arts, helping the needy, supporting redemption can helping the needy, supporting redemption can only put everyone profession a better only put everyone in in thethe profession in ainbetter light. light. you could magically change one thing: If If you could magically change one thing: To accept, embrace and practice diversity. To accept, embrace and practice diversity.
Outstanding Service Serviceby byaaNew NewLawyer Lawyer Outstanding
BRIGIDCAMPO CAMPO BRIGID
LAW& &MEDIATION MEDIATIONFIRM FIRMOFOF KLUECK & HOPPES, LAW KLUECK & HOPPES, APCAPC Why Why serve? serve?As Asaalawyer, lawyer,I Iam amparticularly particularly obligated obligated to to take takeaction actionagainst againstinjustice injustice— — and and there there are aremany manyforms formsof ofinjustice injusticecurrently currently acting acting in in our our world. world.For Forme, me,serving servingstarts startsasasaa selfless ”” selfless attempt attemptto togive giveback backand and“be “bethe thechange, change, however, however, the the myriad myriad“rewards” “rewards”for forthis thisservice service ultimately ultimately make makedoing doingso soaamutually mutuallybeneficial beneficial endeavor. endeavor. Also, Also,the thefeelings feelingsofofaccomplishment accomplishment and and gratitude gratitudeare arequite quiteaddicting. addicting. Advice Advice to to serve: serve:Start Startsmall, small,there thereare areso somany many ways ways to to give give back, back,especially especiallyhere hereininour ourdiverse diverse community. community. By Bygiving givingback backeven evenjust justaalittle littletime, time, you will quickly see how easy it is to dedicate you will quickly see how easy it is to dedicate yourself yourself to to serving. serving.Along Alongthe theway wayyou youare aresure suretoto find find aa particular particularneed needthat thatyou youwould wouldlike liketotofocus focus on, on, and and itit will willnot notbe belong longbefore beforeititbecomes becomespart part of of your your routine routineand andeasy easyto toset setaside asidetime timetotodo. do. Inspiration Inspirationto toserve: serve:My Myparents parentstaught taughtme me the importance of helping others, and the importance of helping others, andnow nowasas aa parent parent myself, myself,my myson soninspires inspiresme meeven evenmore more to improve the world. There are so many to improve the world. There are so manyother other attorneys attorneys in in our ourcommunity communitywho whotruly trulyinspire inspireme me to give back and be as involved as possible! to give back and be as involved as possible!
Inspirational aa Inspirationalmoment: moment:Accompanying Accompanying client office clientwho whowas wasa afoster fosterchild childtotothe theUSCIS USCIS office totofinalize allowed finalizeher herSIJS SIJSapplication applicationwhich which allowed her the most hertotoobtain obtaina agreen greencard cardwas wasone oneofof the most rewarding rewardingdays. days. Most Any time aa Mostrewarding rewardingcareer careermoment: moment: Any time client because ofof clienttells tellsme metheir theirlife lifehas hasimproved improved because my assistance — that is the ultimate reward. my assistance — that is the ultimate reward. Finding gogo handFindingtime timetotogive giveback: back:The Thetwo two handin-hand. forfor mymy in-hand.I’ve I’vebuilt builta astrong strongfoundation foundation practice anan integral practicebybygiving givingback; back;it’sit’snow nowjust just integral part partofofwhat whatI do. I do. Benefits ByBy serving the Benefitstotothe thelegal legalprofession: profession: serving the community we can help put into place changes community we can help put into place changes that profession thatare areneeded neededboth bothwithin withinthe thelegal legal profession and times wewe andalso alsothe thelegal legalsystem, system,and andoften often times might not be aware of what is needed or the might not be aware of what is needed or the possible inin a handspossiblesolutions solutionsuntil untilwe weare areserving serving a handson fashion. on fashion. IfIfyou one thing: youcould couldmagically magicallychange change one thing: Take “other” inin Takeaway awaythe thefocus focusononseeing seeingthe the “other” someone else and focus on seeing everyone someone else and focus on seeing everyone compassionately as a human being. compassionately as a human being.
LAW SCHOOL: LAW SCHOOL: SANTA BARBARA SANTA BARBARA COLLEGE OFOF LAW COLLEGE LAW YEARS IN PRACTICE: 5 5 YEARS IN PRACTICE: May/June 2016 SAN DIEGO LAWYER 23
2016 LAW WEEK POSTER & VIDEO CONTEST WINNERS
Public Service by a Law Firm or Agency
SAN DIEGO UNIFIED SCHOOL DISTRICT & CRAWFORD HIGH SCHOOL ACADEMY OF LAW
1ST PLACE, GRADES K-3
1ST PLACE, GRADES 4-6
AVA AUGER El Camino Creek Elementary School
ANNGELISE PEREZ Monterey Heights Elementary School
1ST PLACE, GRADES 7-8
1ST PLACE, GRADES 9-12
ESTABLISHED IN 2011
Leadership: Jamie Davenport is the Director/Program Coordinator; Christian Andreu-von Euw is the current Chair of the Advisory Board. What inspired you to start this program? The Academy was started as part of an initiative by the California State Bar Association to increase diversity in the legal field. We are a California Partnership Academy and are funded by the Department of Education under Proposition 98. Crawford High School was chosen to be one of the first CPA Law Academies because of our very diverse student population and the overwhelming number of “at risk” students at our school. There are now 16 CPA Law Academies throughout the state.
CATARINA BEJARANO San Elijo Middle School
BRIDGET BRADEN Liberty Charter High School
What is your vision for the future? Our vision as an Academy is to continue to expand and increase our enrollment; to continue our work on restorative justice and to expand restorative justice across the Crawford campus and throughout the District; and to provide rigorous curriculum that prepares all students for success after high school. We envision our students becoming successful, responsible, well-rounded adults who serve their community, who are civically engaged. What motivates you to continue serving the community in this way? We are motivated by a desire to see greater equity in education and the absolute necessity for every child to receive a quality education that prepares them for success after high school. 24 SAN DIEGO LAWYER May/June 2016
1ST PLACE VIDEO KATIE CHICCA, CINDY GRAF, KARA HOAGLAND, ASHLYNN McGRATTAN, GEORGINA MADOK St. Gregory the Great Catholic School
View all of the winning entries at
www.sdcba.org/lawweekcontest
ANNUAL AWARDS LUNCHEON & CELEBRATION OF COMMUNITY SERVICE Photos by Robin Wood of Douglas Gates Photography The SDCBA honored its 2016 Service Award recipients and celebrated all of the good work legal professionals do in our community at its annual Awards Luncheon & Celebration of Community Service on May 9. The winners of the annual student poster and first-ever video contest were also recognized at the event.
SDCBA Law Practice SDCBA Law Practice Management Partners SDCBA Law Practice Management Partners Your SDCBA membership offers you a Management wide variety of member-only benefits Your SDCBA membership offers you Partners
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May/June 2016 SAN DIEGO LAWYER 25
Finding the Strength to Escape Rock Bottom
From the Editors: May 2016 was proclaimed National Mental Health Awareness Month to recognize Americans living with mental illness and substance abuse disorders, and to pledge solidarity with their families who also need support. At the forefront of our minds is the tragic passing on April 26 of local attorney Christine Yusi, a call for us as a legal community to commit ourselves to accepting and assisting those struggling with mental health conditions. In a moving tribute to Ms. Yusi, policy attorney Kristen Knepper discusses her own battle with depression and writes, “Rather than blaming the victims of illness, we must hold space for the struggle they endure. We are so quick to shun what we do not understand. What might our society look like if we chose compassion, or at least non-judgment? ... Society encourages us to lock and load our emotions rather than allowing us to create an honest dialogue.”* Recognizing you are not beyond redemption is a challenging first step before taking that next step of seeking help. In this issue of San Diego Lawyer, we open a dialogue that explores the themes of redemption and recovery. Denise Asher shares her intimate battle with (and recovery from) addiction, while Jeremy Evans takes us on a journey of second chances. Thankfully, Ms. Knepper was able to recover from her illness and realize that she mattered. Christine Yusi mattered. In the words of President Obama’s proclamation, “Let us strive to ensure people living with mental health conditions know that they are not alone, that hope exists, and that the possibility of healing and thriving is real.” Christine Pangan Co-Editor, San Diego Lawyer
* Read the full text of Kristen Knepper’s article “Is Suicide Selfish? Or Are We?” in the Huffington Post at: http://www.huffingtonpost.com/ kristen-knepper/is-suicide-selfish-or-arewe_b_9812912.html
The epiphany that helped me break free from alcoholism By Denise Asher It’s hard to be a trial lawyer when you’re hung over all the time. Or wondering how soon you can get finished with that discovery/ pleading/deposition/trial day so you can get something — or rather a whole lot of something — to drink. But that’s precisely the life I endured and finally escaped on my birthday: February 27, 2001. Not my belly-button birthday, of course. My sobriety birthday. The first day of a life filled with miracles since I learned how to stop drinking, one day at a time.
M
y life was a textbook case for someone destined to become an alcoholic/addict. I come from a long line of alcoholics and a “broken home.” My mom and stepfather were amazing, and gave me a wonderful young life after a tumultuous start. But my biological father was an abusive, angry drunk who made the early years pretty terrifying. He then left us all for another woman/family, so I had the abandonment thing down cold. The resulting insecurity drove me to try to be the best at everything, and when I couldn’t, I desperately needed something to numb the feelings. By 10th grade, I was drinking and dabbling in other recreational substances popular in the 70s. Life went on, and I never addressed the underlying issues which were causing me to drink. Instead I married a wonderful guy, had two beautiful children, and “managed” my drinking. I was usually a “fun” drunk, although on occasion I’d overdo it a bit. Everyone, most of all me, just laughed it off
and chalked it up to “blowing off steam.” Things changed pretty dramatically when I started law school in my early 30s. Those old insecurities came roaring back. I’d work all day, go to class at night, then come home and study — with a beer firmly in my grip. Toward the end, I started seeing a therapist to deal with all my “stress.” She tried valiantly to help me see the main problem was my drinking. I’d get angry, tell her to focus on the real issues, and defiantly go my way. Law school ended, and so did my marriage. I worked very hard at becoming a great trial lawyer like those I admired so much, and some early successes spurred me on. But the insecurities were eating away at me, and one particularly difficult trial loss pushed me closer to the edge. My personal life was out of control, and I was putting myself and my beautiful girls in dangerous situations. I hadn’t “hit bottom” yet as many describe it: the drunk driving arrest, May/June 2016 SAN DIEGO LAWYER 27
the crash that hurt or killed someone, the blown statute or other mistake that hurt one of my clients. But the key word was “yet,” and I knew it was only a matter of time. Then came February 26, 2001. At 9:30 that beautiful Monday morning, I was laying on the couch with a monster hangover wondering how I was going to get up and go to work. From somewhere deep within I groaned: “God, help me.” And He did. I found the strength that morning to call my therapist, who got me admitted to an intensive outpatient program through Scripps Hospital the next day. (An inpatient program wasn’t a viable option due to parenting responsibilities and a heavy case load.) As part of that program, I started attending classes three nights a week, four hours a night, as well as Alcoholics Anonymous (AA) meetings on a daily basis. When I started, I didn’t see how I was going to get through a day without a drink, much less live the rest of my life without drinking. I’d tried to quit so many times before. I’d white-knuckle it for a few days, and then get really drunk, and be right back in the
"Just don’t drink today, and worry about tomorrow when it comes." pit. How was I supposed to do life without drinking? How would I get through a trial without a drink each night to calm me down so I could prepare for battle the next day? How would I deal with a loss without drinking to drown my sorrows? How would I celebrate a victory? How would I attend a party without a couple drinks to loosen me up first? The answer to every question turned out to be very simple: Just don’t drink today, and worry about tomorrow when it comes. By the grace of God, and the AA program, I have not had to have a drink or other mind-altering substance in 15 years, one
www.judicatewest.com Downtown Los Angeles | San Diego | San Francisco | Santa Ana | West Los Angeles
month, and five days. It hasn’t always been easy, but every single one of those days has been a gift. I now get to really live life — feel every emotion, confront every situation with a clear head, really be there for my family and friends. My husband and I remarried. We get to enjoy weddings, grandkids, and all the years to come as a family. Six years into my sobriety, I left my thriving trial practice to be able to spend more time with my family. I’ve been blessed with a new career in mediation in which my friends and colleagues allow me to help them resolve their cases. If you are now where I have been, please know you are not alone. You do not have a defect of character. You have a disease, and there is treatment that can help you live a better life. You only have to take the first scary step of asking for help. Then just wait for the miracles to happen! Denise Asher (denise@ashermediation.com) is a mediator with Judicate West.
Lost then Found: Stories of Redemption Two legal professionals’ journeys to recovery lead back to the law By Jeremy Evans
E
verybody loves a comeback story.
What is even better for attorneys? Redemption and the law. Why? Because it hits close to home. It reminds us that we are all human. Meant to learn. Meant to grow from our mistakes. When we talk about redemption, we are really talking about a second chance. It seems that where the fall happens, the law is there to provide a pathway to conviction with the necessary evidence and proper execution, but it is also a guiding compass on how to get back on our feet. What lies between, as county singer Alan Jackson sings, is “faith, hope, and love.” Essentially, a lot of grace. Alcohol abuse has long been thought of as a problem in the legal profession. A recent study confirmed this thought. The Journal of Addiction Medicine found that more than 30% of American attorneys are "Problem Drinkers."1 Patrick Krill, one of the authors, stated that “This long-overdue study clearly validates the widely held but empirically undersupported view that our profession faces truly significant challenges related to attorney well-being.” 2 In this article, we look at two attorneys, who humbly show us their rise, fall, and redemption. We will then look at a program that has provided a pathway to redemption for many attorneys. Our journey begins with James Binnall. James grew up in Boston, attended a coat- and tie-style all boys prep school, was a wrestler, and eventually became the youngest Division 1 wrestling coach in history. James Binnall He grew up in a stable and supportive family. James
had a wonderful upbringing. One fateful day, however, James decided to drive under the influence of PCP (Phencyclidine). The result was a horrible accident where the passenger in his car was killed. James was charged and convicted of vehicular manslaughter. He served two years in prison. James was in his twenties and a college graduate with a lot of promise. He learned a lot in prison. He saw how his actions led to hurt, a life cut too short, and the loss of his freedom. Prior to eventually using the law to excel, he benefitted from strong relationships and support from a prison warden and his family; he excelled when those who believed in him gave him a second chance. James did not have a singular moment of clarity. Instead, a series of events and people led him to where he is today. He did have to take a step into accountability and accept that he needed to change his life. While in prison, the same prison warden was impressed with James and suggested that he take the Law School Admittance Test (LSAT) and apply to law school once he finished his time. James took the warden’s advice. He applied to many law schools, but was only accepted into one. Most law schools he applied to required that he be off parole, which would have been another few years or more. Two weeks out of prison, James met his soon-to-be wife. She would be influential in his path to redemption. Altogether, it was the beginning of his second chance. The start of his comeback story. James entered Thomas Jefferson School of Law in 2005 at the start of the spring semester. He excelled and attracted many mentors, specifically Criminal Law Professor Anders Kaye. James graduated early as part
of the accelerated program. Then he passed the California Bar Exam, but not before gaining a great deal of experience in the moral character acceptance process (as one might imagine with a criminal background) – experiences he would later use to help others. James eventually went on to earn his Master of Laws (L.L.M.) from Georgetown University Law Center. He did not stop there. He now has a Ph.D. from the University of California, Irvine. He picked up more mentors in the education field. Following the path of his mentors, James wanted to teach. He had learned so much in life; his knowledge would be invaluable to pass onto others. James is now a full-time faculty member at California State University, Long Beach, in the Criminology, Emergency Management, and Criminal Justice Department. He is on a path to become a tenured faculty member. Prior to teaching at Long Beach, he was a full-time tenure track faculty member at Savannah Law School in Georgia, a new up and coming ABA approved institution, and before that, he taught the law fellows at Georgetown. In addition to teaching, James now offers moral character application assistance services to law school graduates who are waiting to be licensed to practice law. He has taken what he learned in his life to help others navigate the process. James is a wonderful example of redemption. Second chances can be fleeting, but James did not hesitate to make the best of his second chance and use it to help others do the same. He is a living example of how programs help people get back on their feet. Entities like local churches, support programs, and The Other Bar, are blessings to our communities. Continued on page 31
1 Journal of Addiction Medicine, “The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys,” Krill, Patrick R. JD, LLM; Johnson, Ryan MA; Albert, Linda MSSW, February 2016 - Volume 10 - Issue 1 - p 46–52. 2 KPBS Study, by Megan Burke and Maureen Cavanaugh “More Than 30 Percent Of American Attorneys Are ‘Problem Drinkers,”Thursday, February 4, 2016
May/June 2016 SAN DIEGO LAWYER 29
30 SAN DIEGO LAWYER May/June 2016
Continued from page 29 Our journey continues with David Mann. David Mann is a graduate of Ohio State University and Stanford Law School. He served as a Deputy Public Defender in San Francisco before David Mann becoming a solo criminal defense practitioner. After 12 years of practice, his substance abuserelated issues caused him to resign from the bar with disciplinary charges pending. Following a relentless battle with addiction which included numerous hospitalizations and periods of living on the streets, he succeeded in getting clean and sober in 1998. Since then he has worked, among other things, as a cab driver, a private investigator, a paralegal, and a drug and alcohol rehabilitation counselor. He presently serves as the Northern California Consultant to The Other Bar, a statewide organization of recovering attorneys, judges, and law students. In this capacity, he spends his time providing outreach and education to the legal community, and assisting attorneys as they struggle with substance abuse and related challenges that threaten their ability and/or eligibility to practice law. I had the chance to talk with David Mann and asked him about his personal life and The Other Bar. What is The Other Bar and how did start? The Other Bar is a statewide group of California lawyers, judges, and law students who are in recovery from addictions to drugs, alcohol, and/or other substances and behaviors. We are a volunteer organization, a 501(c)(3) non-profit, and operate with confidentiality as our highest priority. Our services are free of charge, and supported by charitable donations from firms and individual attorneys. Our mission is to support one another in ongoing recovery, and to make assistance and resources available to those in the profession who are in need of help. To that end, we run an informational website, otherbar.org, a 24-hour confidential hotline and conduct weekly mutual support meetings in 30 cities statewide. When possible, we provide scholarships and loans to pay for rehab for those who cannot afford it. The Other Bar started 40 years ago in
Northern California when San Francisco attorney Edward Caldwell, per judge's order after several DUIs, got sober in Alcoholics Anonymous (AA) and perceived the need, based on a general unwillingness among attorneys to attend AA, for a specialty organization tailored to the needs and concerns of lawyers. The idea was obviously a good one, and The Other Bar is still in business, the only entity doing what it does. A biography/memorial of Ed Caldwell (recently deceased) is posted on our website. If you can say, how many attorneys has The Other Bar assisted? Over the length of our existence, this number is certainly in the thousands. At any given time, we have well over 600 active members. What would you say are the main tenants or foundational principles of The Other Bar? Confidentiality, and service. Each member willingly volunteers to help others, in recognition and appreciation of the help that was extended to them when they were in need. All in recognition of the magnitude of this problem in the legal profession, which is, as you know, enormous. How has your own life path guided and benefited The Other Bar? The Other Bar was instrumental in helping me return to the mainstream of personal and professional life after suffering a terrible struggle with addiction during which I lost everything short of my life itself. I was fortunate enough to be offered my current position as consultant, so I have the privilege of making my living doing this amazingly rewarding and important work. David provides us with another living example of redemption. Something on television recently garnered attention. The speaker said that true charity is the giving of one’s own time and resources. It is the act of freely helping others. You see, from a willing heart flows grace for others. A second chance is but grace in practice. James, David, The Other Bar, and people and programs like it, are but living, walking examples of that grace. We should all be so thankful for lives redeemed. Jeremy Evans (jeremy@csllegal.com) is Managing Attorney with California Sports Lawyer.
Voices Out of the Dark Compiled by Erik Nelson
Local attorneys anonymously shared their experience with recovery and redemption: “Recovery from dependence on alcohol has had surprising benefits beyond the expected physical health and mental clarity. I have a sense of inner peace and a much greater ability to spot and ignore drama. My life doesn’t have the same ups and downs. Everything is more level and more under control. Until I quit, I didn’t fully realize how much havoc alcohol abuse was creating in my life.” “Finding my own path was key — I had to come to terms with the reality that I was not going to be licensed at the same time as my peers. After that I also came to the realization that going through the process was my own choice. That helped a lot. I don’t like to place the blame on anyone else or the system at large. I find that counterproductive.” “My decision to get sober and stay sober is the most important decision I have ever made in my life. It is also the best decision I have ever made. I had a lucid moment where I could see my life was going to continue to worsen because of my drinking. I have been able to get and remain sober because of Alcoholics Anonymous and the Twelve Steps.”
Need Help? Attorneys who believe they are having difficulty with alcohol and substance abuse can contact: • The State Bar of California Lawyers Assistance Program: Offers attorneys and State Bar applicants confidential help with substance abuse, mental health, or a medical condition. (800) 527-4435, www.calbar.ca.gov/lap • The Other Bar: A network of recovering lawyers, law students, and judges throughout the state. (800) 222-0767, www.theotherbar.org
May/June 2016 SAN DIEGO LAWYER 31
Experience Counts Dan White and Steve Amundson are pleased to announce the addition of Fernando Kish and Shannon Sweeney as named members of the firm. The firm continues its defense of clients in civil trials throughout the Southern California region.
Fernando Kish
Shannon Sweeney
Mr. Kish’s 11-year practice focuses primarily on business litigation, public entity defense, professional liability, complex civil litigation and appeals. Mr. Kish earned his undergraduate degree from the University of California, Riverside and his law degree from Loyola Law School, Los Angeles. During law school, Mr. Kish served as a Senior Production Editor for the Loyola of Los Angeles Entertainment Law Review and as a member of the Scott Moot Court Honor’s Board. He also represented Loyola Law School as a participant in the Philip C. Jessup International Law Moot Court Competition, where he and his team earned high marks for written and oral advocacy. He has earned an AV Preeminent Rating from Martindale-Hubbell continuously since 2013, and has been selected as a Top Lawyer for Business Litigation by San Diego Magazine since 2014. Most recently, Mr. Kish was listed as a recipient of San Diego Business Journal’s “Best of the Bar” award for 2016. Mr. Kish is an avid baseball fan and enjoys spending time behind a grill. However, his greatest passion is spending quality time with his wife, 4 year old daughter and 2 year old son.
Ms. Sweeney’s 16-year litigation practice focuses on complex commercial disputes, including primarily the defense of consumer and products liability class actions, securities litigation, and pharma/biotech litigation, in both state and federal courts. In addition to her busy practice, Shannon has been honored to teach at trial and deposition courses for the National Institute of Trial Advocacy for the past eight years. Shannon obtained her Juris Doctorate at the University of San Francisco School of Law where she was a member of (and published for) the Law Review, a member of the Moot Court Board, the winner of the McFetridge Award for best trial advocate, the Advocate of the Year Competition Finalist, and a member of the National Moot Court and Appellate Advocacy Competitions teams. She received her Bachelor of Arts in both Art History and Theater at Scripps College. She is licensed to practice in California, New York and Texas. Shannon is the mom to a wonderful 5 year old. When not with her, Shannon prefers to spend her free time at the theater or outside, camping, cycling or skiing. She lives in Mission Hills and is a local San Diegan.
Daniel M. White
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400+
2120
Members participated in...
14
live programs and learned virtually through live webcasts
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May/June 2016 SAN DIEGO LAWYER 33
Your Path to Resolution
Richard has taken the leadership skills he honed while President of the SDCBA in 2015, along with his reputation for integrity and nearly 30 years of legal experience, into his new role as a full-time mediator. As a panel member exclusively with West Coast Resolution Group, Richard can help you resolve your toughest cases, from insurance bad faith to personal injury, employment, class actions or business matters. To get your case on the path to resolution, please contact Richard’s case manager Kathy Purcell at (619) 238-7282 or kpurcell@westcoastresolution.com.
Š 2015 Huver Mediation. All rights reserved.
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Caution Your Clients:
Online Activity Can Crash Your Case Are your clients aware of the potential risks of their online behavior? By Michael Hernandez
S
ocial media tools have given us effective means by which to reach a massive audience, but this power of broadcasting is not without its pitfalls. From unwinding civil settlement agreements to cementing criminal convictions, social media missteps have been the undoing of countless clients. A few cases highlight the perils of impetuous and ill-considered posts.
A single Facebook post cost a plaintiff his $80,000 settlement. In 2014, Patrick Snay settled an age discrimination suit against his former employer, a private school in Florida, for $80,000. Like most civil settlements, this one came with a confidentiality agreement. Unfortunately, Snay shared the news of his settlement with his teenaged daughter — a student at the very school where Snay had been employed — and she promptly posted a snarky boast about the settlement. Many of the girl’s Facebook followers were also students at the school, and word of the settlement quickly spread to administrators. Attorneys for the school argued that Snay had breached the confidentiality agreement and successfully sought to rescind the settlement.
Local daredevil’s video lands him in jail. In February 2016, a San Diego man posted a video on Youtube showing him racing a modified dune buggy on the streets and highways in San Diego. From flying through residential areas and frightening pedestrians, to tearing up berms and launching over planters, the driver wreaked total havoc. The video went viral, with more than a million views, but quickly drew the attention of police and investigators. Identifying the perpetrator was not too difficult, as there were several close-up views of the man’s face, and he had his name emblazoned on the side of the vehicle. The driver, Blake Wilkey, was charged with and pled guilty to six counts of reckless driving, exhibition of speed, and holding a special event without a permit. Wilkey was sentenced to 45 days in jail and three years of probation.
Woman violates court order by tagging her sister-in-law in photos on Facebook. In January 2016, New York woman Maria Gonzalez, tagged her former sister-in-law, Maribel Calderon, in a few photos on Facebook. Gonzalez called Calderon “stupid” and “sad.” Calderon had previously been granted a restraining order against Gonzalez. A judge found Gonzalez in violation of the restraining order and she now faces up to one year in jail for the offense. Considering the ease with which we can reach thousands — even millions — of people, social media should be used with care.
Keep in mind. It is fascinating just how much information people freely provide on social media; it can be a treasure trove of valuable data that can make or break your case. For this reason, consider retaining an investigator to promptly and thoroughly scour social media accounts of the parties and witnesses. Remember, you cannot un-ring the bell. Social media companies keep everything; closed accounts and deleted posts can be easily retrieved. Include a provision in your fee agreement — or a paragraph in your client engagement letter — about the conscientious use or avoidance of social media. And the same recommendation should hold true for our family members. For lawyers, confidentiality is key and we pride ourselves on being able to keep a secret. But we need to remind our family members, who might overhear our conversations or discussions about a case, to not share that information online.
And one simple rule for clients. Play it safe and do not discuss your case on Facebook, Twitter, Snapchat, or other social media. Michael Hernandez (michaelahernandez@hotmail.com) is a solo practitioner.
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Social Media Policies for Employees: Lessons from the Sports Industry The professional sports industry provides examples of what happens when employees' social media posts run afoul By Decker Cady
O
ne social media post can spread world-wide in seconds. In that same amount of time, a professional athlete or sports personality can lose thousands, and even millions, with a single post. Social media is a doubleedged sword, and it applies to all areas of representation. These days, professional athletes, their coaches, and operations personnel are restricted on when they post on social media. The NFL implemented a policy in 2009 that restricts those individuals from posting on social media 90 minutes before kick-off.1 The restriction is lifted once post-game media interviews conclude. Similarly, in 2009, the NBA prohibited use of communication devices from 45 minutes before tipoff up until they fulfill their responsibilities following the game.2 The same rules apply in the NHL, only the limitation begins two hours before the game starts.3 The MLB enforces similar restrictions.4 Like the NFL, NBA, and NHL, MLB policies extend to coaches, too. Former White Sox manager Ozzie Guillen was fined $20,000 for a post-ejection Twitter rant.5 The fine had nothing to do with what Guillen said, but rather the time and place in which he said it, as his duties had not yet concluded. The NFL, NBA, and NHL also fine players, coaches, and operations personnel for posts that are prejudicial to the welfare of the league, a member club of that league, or for publicly criticizing an official.6 In 2013, NBA Cleveland Cavaliers shooting guard J.R. Smith was fined $25,000 for directing
inappropriate tweets towards another player.7 Players can even get cut by their team for posting the wrong thing on social media. In 2009, the Kansas City Chiefs cut NFL player Larry Johnson after he vented frustration with the Chiefs head coach and made anti-gay slurs on Twitter.8 This list goes on. Professional athletes can also be fined if their social media posts violate the morals clauses in their endorsement contracts. While morals clauses are nothing new, the language within is constantly evolving. Endorsement companies have reworked such language to give them an easy out if an athlete posts something that tarnishes the company’s image. In 2011, former Steelers running back Reshard Mendenhall filed a breach of contract claim against Hanesbrand Inc. after the company cut ties with him over something he tweeted.9 The claim arose after Champion, trademark brand of Hanesbrand Inc., and Mendenhall agreed to amend and extend their existing endorsement contract. The original morals clause stated that Champion could cut ties with Mendenhall if he was “arrested for, or charged with, or indicted for or convicted of any felony or crime involving moral turpitude.”10 The original clause gave no outs to Champion in regards to a social media post. The amended version stated if Mendenhall “becomes involved in any situation or occurrence tending to bring Mendenhall into public disrepute, contempt, scandal, or ridicule, or tending to shock, insult or offend the majority of the
http://espn.go.com/espn/page2/story/_/id/7026246/examining-sports-leagues-social-mediapolicies-offenders 2 http://espn.go.com/espn/page2/story/_/id/7026246/examining-sports-leagues-social-mediapolicies-offenders 3 Id. 4 Id. 5 http://espn.go.com/chicago/mlb/news/story?id=6450727 6 http://espn.go.com/espn/page2/story/_/id/7026246/examining-sports-leagues-social-mediapolicies-offenders 1
36 SAN DIEGO LAWYER May/June 2016
consuming public …” Champion reserves the right to immediately terminate the agreement.11 Before the matter went to court, Hanesbrand Inc. and Mendenhall settled the dispute privately. The amended version of this morals clause demonstrates that companies are becoming much more social media conscious in their endorsement deals. Social media has created a new world of not only marketability, but susceptibility. One big play or mention by an athlete can result in immense profits for a company or league. But, one tweet can also cost a company millions. Professional sports leagues are creating policies that restrict athletes’ social media activity; endorsement companies are constructing contracts that enable them to terminate deals with someone they deem has harmed their brand via social media. As the influence and availability of social media grows, so, too, will the need for restrictions and modified morals clauses. This issue is not only prevalent in sports — it arises under other areas of representation as well. Lawyers, much like agents, should counsel clients on the dangers of posting on social media; one wrong post can lose a case. And employees should be advised to consider how their social media behavior can harm their employer's reputation. While the pros of social media are widely noted, the wildcard of a client or employee’s marriage to social media can be devastating. Decker Cady is a law student at Thomas Jefferson School of Law.
http://www.sbnation.com/nba/2013/11/15/5109204/jr-smith-fine-twitter-brandon-jennings http://www.nytimes.com/2009/11/10/sports/football/10chiefs.html?_r=1 9 http://www.law360.com/articles/260202/steelers-star-sues-ex-sponsor-for-nixing-endorsement 10 Mendenhall v. Hanesbrands, Inc. (M.D.N.C. 2012) 856 F.Supp.2d 717.) 11 Id. 12 Conversation with General Counsel at Callaway Golf, Certified Sports Agent at 7 Sports Group, and Vice President of Action Sports & Olympics at Wasserman Media Group. 7 8
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Parents Take Charge: Online Sharing Dos & Don’ts A few rules to safeguard you and your children By Renée Galente
I
n 2011, 66 percent of Generation X parents (people born in the 1960s and 1970s) said they posted photos of their children online, while more than half said they have shared news about a child’s accomplishment online.1
DO have fun at your own expense. Not your kid’s. Some parents and kids have gone viral on social media, including “BatDad,” a guy who wears a Batman mask and talks in a deep, scratchy Christian-Bale-esque voice. While his kids are in these short videos, he is the target of the self-deprecating humor.
There are two general schools of thought about the use of social media as it relates to posting about infants, toddlers, and those children too young to have accounts themselves. “Pro-Privacy Parents” don’t allow pictures, or even the mention of their children’s names, on social media. Sometimes called “baby blackouts,” these restrictions, which would be made known to friends and family, are generally based on safety concerns and a fear that predators could use information posted on social media. Some parents who are pro-privacy take this stance out of respect for their child’s autonomy and feel that the decision of what photographs or information will be posted belongs to the child when the child is old enough to make that decision. Conversely, “Social Media Sharers” enjoy sharing information, including pictures and accomplishments, of their children on social media. The idea is that sharing the information helps friends and family stay connected across distances. Sharers also use social media to express pride in their children, to draw attention to local community youth organizations, or even to create digital photo albums for their children. No matter in which camp you fall, here are some tips for protecting your most precious people on social media.
DO check privacy settings. Some social media platforms, like Facebook, do allow you to restrict who can see your posts. The problem is that most people do not regularly check their privacy settings. Make sure what you share is as private as you want it to be. Check your settings regularly. Then open an “incognito” search window and Google your page to make sure that your settings are working the way you want them to.
DON’T forget to scan for identifying info. When taking a picture of your children, their friends, or your family, pause before posting and take a look at what’s in the background. Something as simple as a street name, building name, or house number could provide more information than you want to share. Some people are capable of blowing up photos to see minute details … say, the house address on mail on a table.
DO claim online property. Online property is valuable and finite. While platforms and technology are always changing, some popular online property to claim now include: a domain name in your child’s name, a Gmail account, Google+ page, Facebook, and Twitter account. If you’re uncomfortable filling the profiles out, you can keep them unpopulated until you turn them over to your child.
DON’T forget the Golden Rule. If you wouldn’t want it posted about you, maybe don’t post it about your child. DO ask if you don’t know how other parents feel. If you do like to post on social media, you can’t go wrong by making sure it’s ok to post pictures of your kid’s friends before doing so. It’s just good social media etiquette! Renée Galente (renee@galentelaw.com) is owner of Galente Law APC. 1
Longitudinal Study of American Youth at the University of Michigan’s Institute for Social Research. May/June 2016 SAN DIEGO LAWYER 39
Some Ethical Dos & Don'ts for Social Media By Edward McIntyre DO use social media, if it’s your style, to get your message out; to
DO consider separate accounts: one just for your professional life; the other, personal.
DO remember client confidentiality and client secrets especially with informal posts; even indirect references may expose confidential information. You may be proud of successfully defending that DUI this morning, but your client might not be pleased when you broadcast your victory and the reason she had to “go to court.”
DON’T attempt to “friend” a represented party; or a sitting juror.
DON’T say you’re available for business, even by implication,
DO use social media to “research” opposing parties; potential
unless you intend to comply with those State Bar advertising rules, including saving your posts for two years and adding the advertisement label.
stay in touch with clients, colleagues, friends.
DON’T post anything false or deceptive — on any medium.
witnesses; experts.
DON’T allow others to post confidential information on your media, especially a firm website.
DO warn clients that opposing lawyers will scour the digital world looking for their social medial posts. DON’T promise, or even suggest, great results. The required disclaimer — State Bar advertising rules — is clumsy and will take the wind out of your sails.
DO be careful in social media exchanges with judges and arbitrators. It’s allowed but it could require disclosure and give rise to recusal motions. Be judicious.
DO include a clear warning not to disclose anything confidential and that a web inquiry does not create an attorney-client relationship. Otherwise, an “accidental client’s” confidential information may disqualify you from a worthwhile representation. DO also warn clients that they cannot delete anything after the dispute arises. The penalty for evidence spoliation is far greater than the embarrassment from a stupid post or tweet. Edward McIntyre (edwardmcintyre1789@gmail.com) is an attorney at law and Co-Editor of San Diego Lawyer.
Congratulations to Our Founding Partners, A. Mark Pope and Harvey C. Berger, on Celebrating the 20th Anniversary of Our Firm! Established on June 1, 1996, you opened our doors as “Pope & Berger.” Now celebrating 20 years in business, we thank you for building the foundation upon which we have enjoyed so much success, professionally and personally. Thank goodness your original business plan – to go bankrupt within six months – didn’t work out. We know the work you have done together has been rewarding, despite evidence to the contrary. Pope, Berger, Williams & Reynolds, LLP Employment Law & Business Litigation
Wells Fargo Plaza | 401 B Street, Suite 2000 San Diego, CA 92101 (619) 234-1222 www.popeberger.com Award-Winning Attorneys with Reputations for Integrity and Successful Representation of a Broad Range of Cases and Clients.
May/June 2016 SAN DIEGO LAWYER 41
San Diego County Bar Foundation Prepares for Annual “Evening in La Jolla” September gala helps provide access to justice for the underserved
S
ave the date! The San Diego County Bar Foundation (SDCBF), the charitable arm of the San Diego County Bar Association, will gather San Diego’s legal community for its 19th annual Evening in La Jolla on Saturday, September 17, from 6 p.m. to 10 p.m. at the Birch Aquarium. The foundation’s signature benefit gala provides an opportunity for legal professionals and associates to socialize and network while enjoying delicious food and sunset views. It is widely considered “the most fun legal event of the year.” SDCBF actively seeks sponsors for the Evening in La Jolla at all levels, with ample opportunities for company and individual recognition. The high-end evening presents sponsors before more than 350 of the top judges and attorneys in San Diego County. Through last year’s Evening in La Jolla and contributions from the local legal and business communities, SDCBF was able to award $110,000 to 13 nonprofit organizations that offer legal services and promote understanding of the legal system to San Diego County residents. “Through these grants, we continue to ensure that legal aid is accessible to those who would otherwise be underserved by
the legal system,” said Brian Funk, president of the SDCBF Board of Directors. “We hope to raise even more funds in the coming year through this benefit and other activities — and continue to promote public understanding of the law.” Those receiving grants this year include victims of domestic violence, child abuse, stalking, sexual assault and other serious crimes; veterans with post-traumatic stress disorder (PTSD); lowincome and indigent families; seniors; the homeless; immigrants and Burma refugees; those dealing with civil harassment and elder abuse; and families caring for sick and/or injured children. The 2015 grant awards were given to: Casa Cornelia Law Center, California Veterans Legal Task Force, California Western Community Law Project, Community Resource Center, Elder Law & Advocacy, Father Joe’s Villages, Jewish Family Service of San Diego, Karen Organization of San Diego, Legal Aid Society of San Diego, Professional Alliance for Children, San Diego Family Justice Center Foundation and San Diego Volunteer Lawyer Program. To become a San Diego County Bar Foundation 2016 “Evening in La Jolla” sponsor or for more information about the foundation and its charitable activities, visit www.sdcbf.org.
The Long & Winding Road of Magistrate Judges Continued from page 19 The focus on settlement conferences was eventually formalized by then Magistrate Judge, now Chief District Court Judge, Barry Moskowitz. While working as a Magistrate Judge (1986-95) Moskowitz became aware of a settlement panel project in the Northern District of California where lawyers were trained to hold settlement conferences; after discussions with McCue (who was then the Presiding Magistrate Judge), Moskowitz came up with a Magistrate-led approach to settlement — the Early Neutral Evaluation — which today brings parties together to discuss the case, and possible settlement, with the assigned Magistrate Judge before discovery (and all of its expenses) is launched. “I wrote the rule and the timeline and off it went,” said Moskowitz. Stormes noted that in 2015 the Magistrate Judges collectively settled 39 percent of the civil cases within 90 days of the ENE. It is a program that has been implemented — or being planned for implementation — by many other district courts. (In 1995, Moskowitz was the first Magistrate Judge in the Southern District to be appointed a District Court Judge). Other improvements have been made
over time. The Magistrate Judges are now vetted by a selection committee, with the District Court Judges selecting the final candidate from a selection committee recommended field of five. The pay is tied to a percentage of what the District Court Judges make, and each Magistrate Judge is appointed for an eight year term, which can be renewed. “Had the Magistrate job in 1982 been the job it became in 1990, I might not have transitioned to the state court. I think that the Magistrate Judge’s job today is just a terrific judicial position,” said Bianchini, who has settled cases for the past 14 years as a part-time U.S. Magistrate Judge for the district courts in New York, Washington State and the Central District of California. Stormes said the Southern District of California is known as a very friendly court, but agreed that the Magistrate Judges may be the only judicial face parties encounter if the matter ends up settling. “Magistrate Judges are in many ways more approachable simply because we see people in chambers, in an informal setting, and there’s not as much mystery about us. Litigants and parties see us from
the inception of a case and they see us throughout the case to the end of the case, whereas they may not see the District Court Judge or if they do it might be in a very formal hearing.” “The exceptionally high quality of today’s Magistrate Judges is due in large part to the addition of a rigorous merit selection process, increased salary, beneficial retirement system and the title “Judge,” said Stormes. “Magistrate Judges today assist the Article III judges in innumerable ways. We serve as trial judges in both jury and non-jury trials on consent of the parties. We are settlement and discovery judges on some of the most difficult federal civil cases such as patent, antitrust, class actions and multi-district litigation. We adjudicate issues of national importance such as whether Apple should assist law enforcement in unlocking a criminal’s iPhone. A good part of the job is cerebral, but much of it is ’hands on‘ such as our day-to-day interaction with lawyers and parties in settlement conferences. It is the combination of the two that makes our job ‘the best in town’”. George Brewster Jr. (george.brewster@sdcounty.ca.gov) is Chief Deputy with the Office of County Counsel. May/June 2016 SAN DIEGO LAWYER 43
100
LUB
EN PERC T C 2016 SDCBA
100 PERCENT CLUB 2016 The San Diego County Bar Association’s 100 PERCENT CLUB is a special category of membership that indicates an outstanding commitment to the work done through SDCBA programs and services in the legal profession and the community. The following firms (five or more lawyers) are members of the 100 PERCENT CLUB for 2016, having 100 percent of their lawyers as members of the SDCBA.
Allen, Semelsberger & Kaelin, LLP Andersen Hilbert & Parker, LLP Andrews Lagasse Branch & Bell LLP Antonyan Miranda, LLP Artiano Shinoff & Holtz* Atkinson, Andelson, Loya, Ruud & Romo Austin, Brownwood, Cannon & Santa Cruz Balestreri Potocki & Holmes* Basie & Fritz* Beamer, Lauth, Steinley & Bond, LLP Belsky & Associates Bender & Gritz, APLC Bernstein Litowitz Berger & Grossman LLP* Best Best & Krieger, LLP Blackmar, Principe & Schmelter APC Blanchard Krasner & French Bonnie R. Moss & Associates Brierton, Jones & Jones, LLP Brown Law Group Buchanan Ingersoll & Rooney PC Butterfield Schechter LLP Butz Dunn & DeSantis APC* Casey Gerry Schenk Francavilla Blatt & Penfield, LLP* Christensen & Spath LLP Circuit McKellogg Kinney & Ross, LLP Cohelan Khoury & Singer Contreras Law Firm Daley & Heft, LLP D’Egidio Licari & Townsend, APC Del Mar Law Group, LLP Dentons US LLP Dietz, Gilmor & Chazen APC District Attorney’s Office* Duckor Spradling Metzger & Wynne* English & Gloven APC Epsten Grinnell & Howell, APC Farmer Case & Fedor* Ferris & Britton, APC Finch, Thornton & Baird, LLP Fischer & Van Thiel, LLP Fragomen, Del Rey, Bernsen & Loewy, LLP* Frantz Law Group APLC Fredrickson, Mazeika & Grant, LLP* Gatzke Dillon & Ballance LLP Gomez Trial Attorneys Goodwin Brown Gross & Lovelace LLP GrahamHollis APC Green Bryant & French, LLP* Grimm, Vranjes & Greer, LLP* Henderson, Caverly, Pum & Charney LLP Higgs Fletcher & Mack LLP* Horton, Oberrecht, Kirkpatrick & Martha, APC* Hughes & Pizzuto, APC Jackson Lewis PC Judkins, Glatt & Hulme LLP* 10+ years as 100 Percent Club
*
44 SAN DIEGO LAWYER May/June 2016
Kirby & McGuinn APC Kirby Noonan Lance & Hoge LLP* 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 Littler Mendelson PC Lorber, Greenfield & Polito, LLP* Miller, Monson, Peshel, Polacek & Hoshaw* Moore, Schulman & Moore, APC Musick, Peeler & Garrett LLP Naimish & Lewis Law Neil, Dymott, Frank, McFall & Trexler APLC Office of the San Diego City Attorney Olins Riviere Coates and Bagula, LLP Oliva & Fanning, ALC Parker Straus, LLP Paul, Plevin, Sullivan & Connaughton LLP* Peterson & Price, APC Pettit Kohn Ingrassia & Lutz PC Pope, Berger, Williams & Reynolds, LLP Preovolos Lewin & Hezlep, ALC Procopio, Cory, Hargreaves & Savitch LLP Pyle Sims Duncan & Stevenson APC RJS Law Rowe | Mullen LLP Sandler, Lasry, Laube, Byer & Valdez LLP Schwartz Semerdjian Cauley & Moot LLP Seltzer | Caplan | McMahon | Vitek ALC* Sheppard, Mullin, Richter & Hampton LLP* Shoecraft Burton, LLP Siegel, Moreno & Stettler, APC* Simpson Delmore Greene LLP Smith, Steiner, Vanderpool & Wax, APC Solomon, Grindle, Silverman & Wintringer, APC Solomon Minton Cardinal Doyle & Smith LLP Solomon Ward Seidenwurm & Smith, LLP Stoel Rives LLP Stokes Wagner, ALC Sullivan Hill Lewin Rez & Engel Summers & Shives, APC Thorsnes Bartolotta McGuire LLP Walsh McKean Furcolo LLP Ward & Hagen LLP White, Oliver & Amundson, APC Wilson Elser Moskowitz Edelman & Dicker LLP* Wilson Turner Kosmo LLP Winet Patrick Gayer Creighton & Hanes Wingert Grebing Brubaker & Juskie LLP Withers Bergman LLP Wright, L’Estrange & Ergastolo Zeldes Haeggquist & Eck, LLP
Sustaining Members The San Diego County Bar Association gratefully acknowledges its Sustaining Members.
PATRON MEMBERS Marc D. Adelman Jose S. Castillo Ezekiel E. Cortez William O. Dougherty James P. Frantz Van E. Haynie Rhonda J. Holmes Richard A. Huver Laura H. Miller Gerald S. Mulder Todd F. Stevens Thomas J. Warwick Jr. Andrew H. Wilensky BENEFACTOR MEMBERS Doc Anthony Anderson III Jedd E. Bogage Steven T. Coopersmith Alexander Isaac Dychter Douglas A. Glass Alvin M. Gomez J. William Hinchy Jr. Philip P. Lindsley FRIEND MEMBERS Laura Ashborn Steven Barnes Frank Lawrence Birchak Edward V. Brennan Scott Carr Linda Cianciolo David B. Dugan Susan K. Fox Kenneth N. Greenfield Ronald Leigh Greenwald Ajay K. Gupta Karen A. Holmes Daniel A. Kaplan Mark Kaufman Marguerite C. Lorenz Robert E. McGinnis Joseph Jay McGuire Raymond J. Navarro Justin Nielsen Anthony J. Passante Jr. Anne Perry Kristi E. Pfister Ralph T. Santoro Jr. Stella Shvil
SDVLP Honors its Champion Volunteers By Teresa Warren
V
olunteers are the heart and soul of any nonprofit organization and San Diego Volunteer Lawyer Program is no exception. To honor the more than 450 legal professionals who contributed time and expertise during the past year, SDVLP recently held its annual Volunteer Appreciation Awards Reception at Tom Ham’s Lighthouse. At the program, 42 attorneys, law students, and other legal professionals received SDVLP’s Distinguished Service Award for contributing at least 150 hours of pro bono service in 2015. Additionally, 132 attorneys and law students who contributed at least 50 hours of pro bono service through SDVLP received the State Bar of California’s Wiley W. Manuel Award. Following a tradition set many years ago, SDVLP presented its “Standout Awards” to volunteers who excelled in their volunteer efforts, regardless of the total number of volunteer hours provided. This year’s Standouts were Christie Carpenter,
Distinctions
Alexandria Forester, Jackie Kallberg, David Marshall, Justin Salas, Leonard Schneider, and Gary Wright. Presiding Judge of San Diego Superior Court Jeffrey B. Barton gave the keynote address and personally congratulated those being honored. In his presentation,
Judge Barton stressed how important the volunteers’ contributions are to the community, and commended them for their efforts. SDVLP is an important training ground for law students and new attorneys to gain practical legal skills while helping San Diego County’s low-income community.
Volunteers gain invaluable, real world, inthe-trenches experience working directly with clients and representing them in various fundamental legal matters that seriously impact their lives. As any volunteer knows, you get as much — if not more — than you give. When asked about their experience, SDVLP volunteers shared why the assistance they provide is meaningful to them: “I feel like I truly helped someone. Often in a day-to-day corporate law practice, you lose sight of that.” “I am amazed at the joy and gratitude that legal services bring to underprivileged communities.” “Having a client cry tears of happiness after helping her with custody paperwork. “ To create your meaningful volunteer experience, visit the SDVLP website today — www.sdvlp.org. Teresa Warren (twarren@tw2marketing.com) is President of TW2 Marketing.
Individuals and organizations in our community were recently honored for a variety of achievements. Following is a list of recent community recognitions:
Madeline Cahill, partner with Cahill & Campitiello, was named to the Cybersecurity Advisory Board for California State University San Marcos’ Cybersecurity Professional Science Master’s Program.
Hecht Solberg Robinson Goldberg & Bagley LLP partner David Vogel was recently appointed president of the BIA Cares Board of Directors.
Hon. Tamila Ipema of the San Diego Superior Court (and 2016 SDCBA Service Award Winner) received the Friend of the Community Award from the Tom Homann LGBT Law Association (THLA). Higgs Fletcher & Mack partner and SDCBA President Elect Loren Freestone received the THLA Co-Presidents' Award.
Teodora Purcell, an attorney in the San Diego office of Fragomen, Del Rey, Bernsen & Loewy, was honored as a KPBS Women's History Month Local Hero.
Higgs Fletcher & Mack attorney Peter Doody was appointed Secretary-Treasurer to the Association of Southern California Defense Counsel.
Hon. Cynthia Bashant of the United States District Court for the Southern District of California; Jerrilyn Malana, attorney with the San Diego District Attorney's Office; and Carla Sanderson, associate with TencerSherman LLP, were honored at the Lawyers Club of San Diego's Annual Dinner.
To submit information regarding honors of a community or civic nature or passings in the legal community, email bar@sdcba.org. May/June 2016 SAN DIEGO LAWYER 45
PHOTO GALLERY CREEK TO BAY CLEANUP SDCBA members helped clean up our hometown during I Love A Clean San Diego's Annual Creek to Bay Cleanup on April 23.
Lauren Wood
See more photos on the SDCBA's Facebook page at www.facebook.com/ sdcountybar Jean Cook, Hon. Pennie McLaughlin
SDCBA and I Love A Clean San Diego volunteers
Back Row (L-R): Michelle Gastil, Lori Mendez, Jean Cook,Lauren Wood; Front Row: Lauren Perkins, Hon. Pennie McLaughlin
THLA ANNUAL DINNER Photos by Paul Clark Photography
L-R: Hon. Theodore Weathers, Hon. Cindy Davis, Hon. Paula Rosenstein, Hon. Randa Trapp, Safora Nowrouzi, Hon. Tamila Ipema
Long Beach Mayor Robert Garcia
Hon. Daniel Link and 2016-2017 THLA Board of Directors
Back Row (L-R): Anita Margolis, Ellen Smith, Chris Hicks, Kevin Alexander, George Seymour, Leonard Trinh, Ariel Javier; Front: Shawn Huston, Ben Aguilar, Nicholas Fox, Kevin Davis
The Tom Homann LGBT Law Association (THLA) held its annual dinner on April 14.
Loren Freestone
FEDERALISTS SOCIETY DINNER Photos provided courtesy of the San Diego Chapter of the Federalists Society The San Diego Chapter of the Federalists Society hosted their Annual Anniversary Dinner on April 15.
Hon. J. Clifford Wallace 46 SAN DIEGO LAWYER May/June 2016
L-R: John Rogitz, Ryan Darby, Heather Murray, Bob Gaglione
L-R: Ryan Darby, John Rogitz, Cheryl Mitchell, Hon. Joseph Brannigan, James Rodisch, Michael Giorgino, Heather Murray, Bob Gaglione, Adam Van Susteren
Hon. Joe Brannigan
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