TM
TM
SEP/0CT 2016
THE
DIVERSITY ISSUE
PLUS
50th Anniversary of San Diego’s Federal Court Mediation Do’s & Don’ts
5 The number of CaseyGerry partners invited into the American Board of Trial Advocates (ABOTA)
For nearly 70 years, our knowledge, experience and commitment to justice have enabled us to achieve outstanding results. An invitation into ABOTA, a national organization comprised of leading judges and attorneys, furthers this longstanding mission.
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CONTENTS
Page
Page
35
46
Departments
Features Diversity & Inclusion
19
Eliminating Bias Through Understanding Helping transgender people align their personal and legal identities By Elizabeth Blust
21
"It's What I Can Do; Not What I Can't." Attorneys with disabilities making an impact in San Diego
33
50 Years Strong Spotlight on the Federal Court in San Diego
By Hon. Barry Ted Moskowitz and Hon. Janis Sammartino
39
Point vs. Counterpoint, Part I The duty to defend and identify a wrongful denial
By Dominic Nesbitt and Gary Osborne
By Peter Lynch
25
Diversity Fellowship Program 2016 program participants tell us what the program means to them
31
The Case for Diversity A diverse workforce shows positive impacts on businesses, employees and clients
40
Comics, Creators & Capital Tips for superhero creators and lawyers
7
Why I Belong Get to know SDCBA member Roberto Contreras
By Edward McIntyre
8
President's Feature Local diversity bar leaders discuss their hopes for the future
11
Deans Alumni engagement and relations beyond fundraising and recruitment By Thomas Guernsey
By Doug Lytle
13
43
Mediation Do's & Don'ts A seasoned mediator and attorney share their top tips for mediation success By Craig Higgs and Debra Hurst
15
Ethics Exploring the ethics consequences of abiding by a client's discriminatory wishes
Technology Beware the Internet of Things By Bill Kammer
17
Tips What can an employer do when a client discriminates against an employee? By Fred Plevin
45
San Diego Law Library Celebrating 125 years of service By Cheryl Weeks-Frey
45
Distinctions
46
Photo Gallery San Diego's legal community meets, greets and welcomes its newest members
On the Cover: Leaders of San Diego's Diversity Bar Associations and 2016 Diversity Fellowship Program Employers & Fellows L-R: Tom Turner, Linh Lam, Luis Osuna, Ramin Hariri, Jonah Toleno, Nicholas Fox, Jamie Quient, Sarah Roberts, Heather Rosing, Armando Diaz-Lombardo, Peter Lynch, Luis Lorenzana, Janice Brown, Jonathan Andrews, Michael Weinstein, David Fisher, Sharona Silver, Patti Perez, Lily Duong, Freyaan Karanjia, Sydney Colbert, Nima Shull, Jessica Maiden, Yarazel Mejorado, Ben Aguilar, Justin Shields, Teri Gibbs, Leah Rosario, Carmine Aiello, Susan Hack, Jeff Ames Issue no. 5. 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 September/October 2016
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WHY I BELONG
Roberto Contreras
THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION
Office of the City Attorney, City of National City Education: University of California, Los Angeles, B.A.; Penn State Law, J.D.
Co-Editors
Areas of practice: Municipal/Public Entity Law, General Civil Litigation, Business Law
Edward McIntyre Christine Pangan
Editorial Board Craig Benner Elizabeth Blust George Brewster Jr. Brody Burns Decker Cady Barry Carlton Jeremy Evans Frantz Farreau
Victoria Fuller Renée Galente Michael Hernandez Stephanie Karnavas Erik Nelson David Seto Christopher Todd Teresa Warren
Family: Flavia Pisco-Contreras, wife, and Andrew Contreras, son
Cartoonist
Birthplace: El Centro, CA
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
Current area of residence: San Diego, CA If I weren’t an attorney, I’d be a photographer by day and tenor sax jazz musician by night. The best thing about being an attorney is getting to explain complex legal concepts to people in ways that they will understand. Last vacation: San Quintín, México in May 2016 Favorite website: www.economist.com Hobbies: Golf, photography, playing tenor sax Favorite book: The Count of Monte Cristo by Alexandre Dumas Favorite musical artist or group: Sublime
Publications Editor
Favorite food: Mexican
Jenna Little
Follow San Diego Lawyer! sandiegolawyermagazine
Proudest career moment: My proudest career moment came when I helped force settlement during a bench trial in a hybrid proceeding under Section 850 of the Probate Code and Section 15610.30 of the Welfare & Institutions Code. This case was especially memorable because, as a new attorney, I had the opportunity to work on everything from drafting the complaint to helping impeach witnesses at trial. It was rewarding to know that these efforts secured a sizeable distribution of assets to the decedent’s heirs.
@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 may submit article ideas to the editors at www.sdcba.org/SDLidea. Unsolicited articles will not be printed in San Diego Lawyer™. San Diego Lawyer™ reserves the right to edit all submissions, contributed articles and photographs at its sole discretion. The opinions expressed by the authors and editors in San Diego Lawyer™ magazine do not necessarily reflect an 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? I belong to the SDCBA because of the camaraderie between its members. Not having attended law school in San Diego, I knew I needed to make an extra effort to meet local attorneys. Looking back now, I realize that I’ve made several friends over the course of my last four years of SDCBA membership. How does your SDCBA membership help keep you connected to the legal community? The SDCBA helps keep me connected to the legal community through the numerous CLEs that it offers. There’s no better way to learn about upcoming CLEs than to read This Week at the Bar, a weekly email from the SDCBA. What makes San Diego’s bar so special? The camaraderie between its members. I’m still surprised at how willing practitioners are to share stories of their legal experiences with me at various SDCBA events. I wonder if other bar associations have members that receive newcomers as warmly as they do here in San Diego.
Read San Diego Lawyer Online! Access the digital edition at www.sdcba.org/SDLdigital September/October 2016 SAN DIEGO LAWYER 7
Diversity, Inclusion, Implicit Bias. In our
community, these words mean a whole lot. They are more than just “buzz words” or the statistics we may tout in a client pitch or our firm materials. Diversity efforts in San Diego’s legal community are significant and meaningful – thanks in no small part to the diligent efforts of our local law schools, various legal organizations, and a host of dedicated and tireless leaders. To help spotlight what these words mean in San Diego, we asked some of our strongest diversity proponents to share with us the hopes and goals
they have for their organizations in the next five years. Personally, it is my hope that the San Diego legal community continues to stand at the forefront of these issues and remains committed to making diversity and inclusion a priority in our everyday lives. While there is still progress to be made, I am very proud to be a part of this community – where so many people work so hard to ensure that our profession is accessible to everyone.
Heather Riley, 2016 SDCBA President
LINH LAM
LUIS OSUNA
President, Pan Asian Lawyers of San Diego (PALSD)
President, San Diego La Raza Lawyers Association (SDLRLA)
The PALSD is dedicated to advancing Asian-Pacific Americans (APA) in the legal profession, promoting and advocating the interests of the APA community, and preserving the culture, heritage and diversity of our community. Recently, PALSD reenacted cases that address historical discrimination against Filipino cannery workers and Chinese women. PALSD also hosts business development events like our Inside-Outside Counsel Roundtable and China Practice Workshop. We regularly mentor law students and have given away thousands of dollars in scholarships. The next five years will be an exciting time for PALSD’s future leaders to continue the organization’s important role of serving the APA community in San Diego.
My hope is that SDLRLA will continue building on its prior progress by growing and expanding its capacity to impact San Diego’s legal community and the city as a whole. Coincidentally, the Board of Directors is currently drafting a five-year plan that, if adopted, will serve as a guide for the association’s leadership in the coming years. Increasing our membership, improving our fundraising efforts and employing a permanent staff are imperative to meeting these goals.
SHIREEN BECKER President, South Asian Bar Association of San Diego (SABA-SD)
JONAH TOLENO President, Filipino American Lawers of San Diego (FALSD) My hope is that FALSD will prosper as an organization that elevates its members’ professional profiles and supports all members of the San Diego legal community, particularly those interested in becoming a qualified, competent member of the bench. I love practicing in San Diego, and I hope we continue to represent America’s Finest City as classy, smart professionals of diverse backgrounds who each bring something unique and valuable to the table.
8 SAN DIEGO LAWYER September/October 2016
Currently, our membership is small, in large part because the number of South Asian-American attorneys in San Diego is relatively small. My hope for the organization is threefold: (1) increase membership by inspiring attorneys from all backgrounds to join SABA-SD’s mission; (2) continue and improve upon current efforts to mentor young South Asian attorneys and those who are new to our legal community; and (3) maintain the cozy feel that currently permeates the organization. This organization is a place that should feel like home, where attorneys are supported, and where we each go the extra mile to help each other succeed. As we grow, I hope we never lose that vibe.
PETER KANG President, Korean American Bar Association (KABA-SD) I hope that KABA-SD can continue to build on the excellent foundation laid by my predecessors. Since its inception, KABA-SD has provided Korean-American attorneys and law students in San Diego the opportunity to network with each other; offer legal, educational, charitable and other services to the Korean-American community; and advance KoreanAmericans in the legal profession. Most recently, we’ve focused on investing in local law students — these folks will be the future legal leaders in San Diego someday! And as our membership grows, I’m excited to see KABA-SD taking on larger roles in our local community.
JAMIE QUIENT President, Lawyers Club of San Diego My ultimate hope is that we will achieve our mission of advancing the status of women in law and society, and we will no longer need to exist. Unfortunately, I do not anticipate that will happen in the next five years. In the meantime, I hope that Lawyers Club will become the voice of women’s issues in San Diego and generate a dialogue focused on women’s equality that reaches far beyond our members. I also hope we will continue to partner with and support the work of other diverse bar associations so that we strive to achieve our collective missions of increasing the diversity of the legal profession together.
RAMIN HARIRI WILLIAM CONCIDINE President, Irish American Bar Association of San Diego My hope for our organization is to continue to provide a place where people can meet, laugh and socialize together while not only sharing what we have in common but also the things that join us together as a legal community here in San Diego. We hope to continue to be an organization where people can go to have a good time after a long day at work, tell stories and be an active member of the Irish community here in San Diego.
Chapter President, Iranian American Bar Association of San Diego (IABA SD) IABA SD’s goal during the next five years is to focus on the emerging law students in San Diego and introduce our organization to them. The attorneys presently in our organization have traveled a far and difficult path, and have made headway in the legal community for newer generations to come. We want the next generation of law students and lawyers to know that Iranian-Americans have the capability to be great leaders in our community. We would like to see more Iranian-Americans as judges, lawyers, law professors, SDCBA board members and in government leadership positions.
BEN AGUILAR AND NICHOLAS FOX Co-Presidents, Tom Homann LGBT Law Association (THLA) As THLA expands and continues our fight against anti-LGBTQ legislation, policies and mindsets, we would like to work more with other diversity bar organizations to promote our common mission of equality for all and the celebration of diversity among us. Continuing to learn from each other’s experiences and cultures is the bedrock of diversity and inclusion. To that end, we hope that the San Diego legal community, the SDCBA and other diversity bar organizations can work together to create more programs that celebrate diversity and provide opportunities for all attorneys — not just the members of each organization — to learn about each other, our rich heritages, our community’s struggles and ways we can work toward common goals.
MORE LOCAL DIVERSITY BAR ASSOCIATIONS Earl B. Gilliam Bar Association: Joy Utomi, President French-American Bar Association: Elie Seyedian, Vice President San Diego Chinese Attorneys Association: Joanna Tsai, President San Diego County Native American Lawyers Association: Angela Medrano, President September/October 2016 SAN DIEGO LAWYER 9
L AW Y E RS H E L P I N G OT H E RS
DAVID STONE PAY I N G I T F O R W A R D
While growing up in San Diego, David Stone spent countless hours at the Lawrence Family Jewish Community Center of San Diego. “The JCC has so much to offer and provided a positive and enriching place to go. This is my opportunity to pay it forward for the children and families who will come after me.” David now serves on the JCC’s Board of Directors, Executive Committee, Budget & Finance Committee, and other committees. The JCC provides more than 300 social, cultural, educational, and recreational programs and services to San Diego’s Jewish community and to people of all religions and backgrounds. Visit www.lfjcc.org to get involved, donate, and learn more. At Duane Morris LLP, David advises clients nationwide in real estate, finance, land use, and corporate transactional matters. He particularly enjoys working with his clients on projects from concept through completion. David Stone and Duane Morris LLP are not affiliated with the Law Office of Steven C. Vosseller.
Help us celebrate lawyers helping others. Please let us know of other San Diego County attorneys doing great community service.
Plaintiff Personal Injury (858) 429-4062 www.vosslawyer.com
L AW O F F I C E O F
STEVEN C. VOSSELLER
BY THOMAS GUERNSEY DEANS
Alumni Engagement and Relations Beyond Fundraising and Recruitment t a time when the legal profession has constricted and law schools have begun to shrink in size, the importance of maximizing new and existing alumni relationships is essential. Traditionally, the involvement of alumni in supporting and providing financial contributions to their university has been crucial for maintaining and expanding an institution of higher learning’s development. Alumni have also served as “ambassadors” in promoting the institution’s image and brand to prospective students through invaluable word-of-mouth marketing among their social and professional networks. What we found useful here at Thomas Jefferson School of Law is that celebrating the professional success and accomplishments of our alumni also strengthens the reputation and brand of the school.
A
Within the context of law schools in particular, the alumni association and its professional networks are used to boost job prospects for graduating students as well as provide practical experience for current students through externships, summer clerkships and legal clinics. The effectiveness of alumni professional networks has been supported empirically in a research paper written by the Law School Admissions Council (LSAC) in 2013 titled, “Law School Alumni Networks and Legal Labor Markets: An Empirical Investigation of Law School Graduate Career Attainment.” The LSAC report concluded, “By comparing displaced lawyers’ subsequent employers to other potential employers in the same metropolitan area, we determined that lawyers do rely on law school alumni networks to obtain employment.”
Thomas Guernsey This, however, is predicated on how effective law schools are with alumni engagement. Maintaining a positive relationship with alumni means that the messages they share about the institution will also be positive and long-lasting. If the relationship between alumni and the institution stop when they graduate and leave campus, their knowledge of the institution’s activities and accomplishments will no longer develop. The messages they will share with people will be antiquated and could reflect poorly on the reputation and advancement that the institution has since achieved. Maintaining clear and effective communication channels with alumni means the school can keep them informed and make them part of the institution’s future and not just its past. The relationship between the law school and alumni is by no means one-sided. Good alumni relations benefit alumni as well as the institution. If the law school supports alumni in their professional and personal lives through the facilitation of social and professional networking opportunities, continuing legal education
offerings and promoting their professional accomplishments, they are more likely to be loyal supporters in the long-term. This can potentially translate into hiring new graduates at their firms or places of business, professional mentoring, and practical skills training of current students through externships and clerkships. The partnership essentially creates a conduit for alumni to tap into fresh talent coming from law school and boosts the institution’s reputation. The collaboration between students and alumni is indispensable in positioning the students for their future careers. Alumni can also serve as positive role models for current students and are often well-placed to offer support as they start their legal careers. Thomas Jefferson School of Law, for example, has often used alumni as guest speakers and panelists for not only its career panels, but also for programming dealing with various issues debated and discussed within the legal community. By engaging alumni, the law school and students can continue to benefit from their skills and experience. Healthy alumni relations should also be elastic enough to allow alumni to maintain a positive relationship, not only with the institution overall, but also with their favorite law professor, school adviser and law student organization to which they belonged. This broader network experience is far more enriching and creates a sense of family and belonging for both alumni and the institution. Thomas Guernsey (guernsey@tjsl.edu) is President and Dean of Thomas Jefferson School of Law.
The collaboration between students and alumni is indispensable in positioning the students for their future careers. September/October 2016 SAN DIEGO LAWYER 11
A new partnership. Same focus.
The 40-year tradition of award-winning representation by some of San Diego’s most experienced trial attorneys continues. Former Kirby Noonan Lance & Hoge partners – David Noonan, James Lance, Ethan Boyer and Micaela Banach – have joined forces as NoonanLance. Located in new East Village loft offices, they will continue to serve their clients with efficiency and a focused eye on results. To learn more, visit noonanlance.com 701 Island Ave., Ste. 400, San Diego, CA 92101
619.780.0880
BY BILL KAMMER
TECHNOLOGY
Beware the Internet of Things! Connective devices could serve as backdoor threats from potential hackers n earlier columns, we discussed the challenges attorneys face to become competent in electronic discovery and to keep pace with rapidly evolving electronic developments. We talked about the security of our devices and confidential lawyer and client information. We became somewhat comfortable with retrieving and reviewing electronically stored information (ESI) from computer memories. But next we had to face the challenges the universe of ESI on mobile devices such as phones and tablets present. Even a mobile phone with limited memory might contain data of 800,000 document pages.
I
If that weren’t enough to get our arms around, we next faced text messages whose proliferation exceeded all knowledgeable projections. Simple text communications morphed into Twitter, WhatsApp, Facebook Messenger and Instagram. When we thought we understood those challenges, we ran into the issues raised by social media and cloud-stored applications and data. We learned to look for relevant evidence in Facebook accounts and on newer messaging apps such as Snapchat. Now, we see frequent warnings about the Internet of Things (IoT), the “things” that are somehow connected to the internet, exchanging and communicating information. In a recent survey, only a small percentage of attorneys acknowledged having heard of the IoT, and few had confronted the challenges of IoT data as relevant evidence. Most of that early experience and gained knowledge seems related to wearable fitness devices, baby cameras, and smart thermostats and doorbells.
Basically, the IoT describes a universe of devices connected in one way or another over the internet while collecting and transferring information from one place to another. Technically, the things on the internet are physical devices with sensors that give an information system the ability to collect, communicate and process data. Residential applications include those baby cameras, smart thermostats, electrical controls, smart doorbells and other similar devices.
6.4 billion connective “things” will be in use worldwide this year, up 30 percent from 2015. Automobiles are full of “things” that transfer information to security firms, manufacturers and mechanics investigating repair issues. Cars have multiple computers connected together through a maze of networks. Other IoT applications include GPS chips that inform the movements of runners, the location of containers, the defensive skills of baseball players and the location of almost anything allowing a GPS attachment. Medical devices constantly transfer information to physicians and drug companies that allows them to monitor medical conditions and the functioning of therapies. Don’t think there are only a few sources of IoT information. Gartner, Inc. has forecasted that 6.4 billion connective “things” will be in use worldwide this year, up 30 percent from 2015. And Gartner predicts there will probably be 21 billion by 2020.
This proliferation of IoT devices compounds an attorney's responsibility to preserve, collect, harvest and review ESI to determine what’s relevant and should be produced upon request during litigation. An attorney’s own devices and movements may present additional security issues if any “thing” lacks front-end security. That absence might allow hackers and curious visitors to enter through the back door and access an otherwise secure network to obtain client and attorney confidential information. The reports of Ukrainian hackers terrifying children through access to their baby cams — often unguarded by password protection — provide a simple analogue for the security weaknesses potentially inherent in the Internet of Things. A baby cam has an IP address but probably connects to the internet through the residential Wi-Fi network. If the hacker can access the camera, what other devices are on that network without additional firewall or password protection? Few, maybe none, of us has enough experience with these devices or things to understand completely their impact on our duty of confidentiality, or the issues they present when we have to address preservation or production of thingcollected data, or their use as evidence. We can only pay attention to developments, try to stay alert and informed, and seek necessary assistance when we confront them. Bill Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP.
September/October 2016 SAN DIEGO LAWYER 13
BY EDWARD McINT YRE
ETHICS
What’s a Managing Partner to Do? Part I: Exploring the ethics consequences of abiding by a client's discriminatory wishes
M
“The floor’s yours, Rodney.”
engage in unlawful discrimination in your practice.” Rodney pushed back. “But would switching assignments be (using air quotes) ‘unlawful’?”
CARTOON BY GEORGE BREWSTER JR.
acbeth gestured to the overwrought man to wait. “Let Duncan and Sarah join us.” With all four settled around Macbeth’s conference table, he gestured to his visitor.
“Isn’t easy. The CEO of an important client. Last year his company was more than 10 percent of our revenue. Anyhow, he’s been sued for sexual harassment. Sued personally. With his company.” “How big’s your firm, Rodney?” “Two other partners. Sam’s older; Janet made partner last year. Three associates. Marianne and Dan, both five-year lawyers. Tom’s a second-year.” Sarah asked, “How bad are the allegations?” “Ugly! Anyhow, he’s asked us to represent him and his company. My client’s a fighter. Never quits.” Duncan spoke, “So, a good piece of work.” “Very. Anyhow, I picked Marianne to work with me. Employment law’s her thing. Tried several cases. Great results. Settled a lot more. Clients love her. A woman on the team won’t hurt — given the allegations.”
Macbeth picked up that thread. “Let’s see. You picked Marianne because, given her experience, she’s the right lawyer?” “Yes —” Rodney blushed slightly and looked away from Sarah. She smiled and shrugged. Duncan spoke, “That leaves Dan?” “Competent lawyer. But his focus is personal injury.” He sighed. “So?” Macbeth raised a finger. “We’ll focus on the ethics issues. We’re not employment lawyers. I’ll give you the names of good ones, if you wish.” He nodded to Sarah. “A lawyer cannot unlawfully discriminate or knowingly permit it based on, among several classifications, sex, in determining the conditions of someone’s employment. That’s Rule 2-400. Black letter.” Macbeth added, “Rule 3-700 mandates withdrawal if the lawyer knows employment will result in a Rule of Professional Conduct violation.”
Silence, until Macbeth broke it. “What happened next?”
Rodney interjected, “But client’s right to pick his own lawyer? Courts bend over backwards to protect it, don’t they?”
“I told the CEO my choice. He said, ‘No woman. Period. No! I want a lawyer with balls. Or I’ll take this case — all our work — elsewhere.’”
Macbeth again. “Yes, within limits. A client can’t hire you to sue to maliciously injure a defendant. Similarly a client can’t ask you to
“For a significant client of your firm?” “Yes —” “Where a successful defense or good settlement would enhance her capital in the firm? Toward partner?” “Yes, but —” “Whatever the outcome, she’d get great experience?” “OK. I see where you’re going.” “All of which she misses because she’s a woman. Let’s assume it’s unlawful. I think that’s what my employment lawyer friends will tell you. Now the ethics consequences.” Macbeth nodded again to Sarah. “Essentially, none. Nada. Zip.” “What!” Duncan burst out. “Currently, the State Bar cannot begin even to investigate — let alone start a proceeding — until after some other tribunal’s final adjudication that unlawful conduct occurred.” “Clear unethical conduct according to the Rule? But the State Bar can’t even investigate?” September/October 2016 SAN DIEGO LAWYER 15
ETHICS “Not unless someone takes it to some other tribunal. Goes through an adjudicatory process to finality, including appeal.” Rodney spoke, “You mean the State Bar can’t do anything to me unless Marianne goes to the EEOC or DFEH, or sues? And wins?” “Currently, yes.” Rodney looked less overwrought. Macbeth spoke, “I assume Marianne, Dan and Tom are all excellent lawyers — given their experience?” “Of course.” “Janet, your newest partner? A rising star?” “Absolutely.” “Knowing you and Sam, all highly ethical?” “First rate.” “What will they think when they learn that you did something that’s — for sake of our conversation — unethical, even if the State Bar can’t touch it?” “Well —” “Do you think they’ll want to stay if some other opportunity comes along?” “But —”
“And your CEO buddy. Will he still remember that he insisted on Dan — the guy, albeit inexperienced in employment law — if the case goes south?” “But —” “Consider: Will this client — a fighter, you say — better respect his lawyer who stands up to him? Who says that both the ethical and smart decision is to have the best team? That he deserves nothing less — the team you put together?” “Won’t be an easy conversation.” “No, but you may sleep better afterward.” Editorial Note: Proposed Rule of Professional Conduct 8.4.1 [Alt A] not only expands the scope of impermissible discrimination, harassment and retaliation but also allows the State Bar to investigate without waiting for the final adjudication of another tribunal; alternative B retains the current procedural regimen. 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.
Respected. Effective. Committed. Kathryn Karcher, for your client’s appeal.
karcherappeals.com | 619.565.4755 Certified Appellate Specialist, Board of Legal Specialization, State Bar of California
16 SAN DIEGO LAWYER September/October 2016
BY FRED FRED PLEVIN PLEVIN BY
TIPS
What’s a Managing Partner to Do? Part II: Considering an employer's legal and business options when a client discriminates against an employee
Macbeth promised to give Rodney the names of some excellent employment lawyers. Here’s the advice Rodney received.
s an employment lawyer advising Rodney, my job is to make sure Rodney understands the legal risks he may face so he can make the best business decision for him and his firm. The legal risk here is that by removing Marianne from the case, he might be engaging in gender discrimination in violation of the Fair Employment and Housing Act and, potentially, Rule of Professional Conduct 2-400(B).
A
It is clear that a California employer cannot make a hiring decision based on gender, unless the employer can establish gender is a “bona fide occupational qualification” (BFOQ). This is a narrow exception. Employers from airlines (flight attendants) to Hooters (servers) have tried unsuccessfully to use it. But Rodney has already hired Marianne; the BFOQ cases address hiring decisions, not individual case or project assignments. I would tell Rodney that while it is generally not advisable to make decisions affecting employees based on their gender, one element of an actionable employment discrimination claim is an “adverse employment action.” This requires an action that has a material adverse effect on employment. Typically, this is a decision to hire, fire, demote, transfer or reduce compensation. However, a series of subtle but damaging injuries could constitute adverse action if the action, taken as a whole, would be reasonably likely to impair a reasonable employee's job performance or prospects for advancement. (Yanowitz v. L’Oreal USA, Inc., 36 Cal.4th 1028 [2005]; Horsford v. Board of Trustees of California State University, 132 Cal.App.4th 359 [2005].) Under this standard, changing one case assignment among many others standing alone, should not constitute an adverse employment action. In addition, Rodney could argue that by acceding to the CEO’s demand to staff the case with a man, he was simply
following his client’s staffing instructions, and absent any discriminatory intent by Rodney himself, there could be no viable discrimination claim. (See West v. Bechtel Corp., 96 Cal.App.4th 66 [2002].) This is a tricky argument, but one which Rodney might pursue. The bottom line for Rodney is that it’s unlikely Marianne has a viable employment discrimination claim based solely on the case assignment decision. For the same reason, because Rule of Professional Conduct 2-400(B) requires unlawful discrimination, there is little risk of a violation of the rule.
Demoralizing or losing a key associate in a small firm is a high price to pay for submitting to a client’s ill-advised staffing demand. I would caution Rodney, however, that if Marianne were to claim sexual harassment or that the reassignment was part of a pattern of behavior constituting adverse action, she could rely on the case assignment as evidence to support her claim. In other words, Rodney could be providing Marianne evidence to support a discrimination or harassment claim, even if the case assignment alone isn’t actionable. Now on to the more practical question — whether reassigning Marianne is the best business decision. If Rodney asked my opinion on this point as a law firm managing partner, I would encourage him to look at the big picture, both for the client and his law firm. Clearly, Marianne is the better choice for the case compared to Dan, because she’s an experienced employment trial lawyer. And, ironically, most seasoned
employment lawyers would agree that, all other things being equal, it would be to the CEO’s benefit to have a woman defending him and his company in the lawsuit. I would encourage Rodney to prevail on the CEO based on these points, and if the CEO is not persuaded, ask him to begin working with Marianne on the case before making a final decision about long-term staffing — to ensure that decision is based on substance and performance, not assumptions. Rodney also needs to consider his firm. Marianne is an important member of his team. Not standing up for her will shatter her morale, and her work may suffer. It would likely impact the rest of the firm as well. Rodney’s relationship with Marianne will probably deteriorate, and she may even leave the firm. Demoralizing or losing a key associate in a small firm is a high price to pay for submitting to a client’s ill-advised staffing demand. Sure, Rodney has a long-term relationship with this client, but last year’s big numbers from the client came mostly from one case. Clients come and go … there’s no guarantee this client will be significant yearto-year. And if — over the strong advice of his long-time counselor and friend — the CEO refuses to consider allowing the lawyer who is the better choice for his case to work on it, that does not bode well for a long-term relationship of trust and confidence between Rodney and this CEO, a necessary component for any successful lawyer-client relationship. Rodney should live by the saying: “When you have to make a tough decision, make the choice you’ll regret the least.” Rodney will not regret standing up for his star associate and resisting the CEO’s impulse to staff his case with the lesser-qualified lawyer. Fred Plevin (fplevin@paulplevin.com) is managing partner of Paul, Plevin, Sullivan & Connaughton LLP. September/October 2016 SAN DIEGO LAWYER 17
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ELIMINATING BIAS THROUGH UNDERSTANDING As transgender people struggle to align their personal and legal identities, attorneys who empathize with their hurdles can better provide legal assistance while encouraging tolerance By Elizabeth Blust s attorneys, we seek to eliminate bias in our interactions with each other, our clients and — ideally — everyone we encounter. We challenge ourselves collectively to celebrate diversity and to empathize with others whose experiences are not like our own. But as human beings, we often have trouble relating to others’ experiences. Sometimes, sympathizing is easy, such as when a temporary disability — like having to use crutches for a few weeks — gives
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a person insight into the life of someone with a permanent disability. But often, the experiences of the “other” are so different that it can be harder to relate. Estimates by the Transgender Law Center (TLC) and UCLA’s Williams Institute indicate that approximately 0.3 percent to 0.6 percent of adults in the United States identify as transgender. But according to a 2013 Pew poll, only 8 percent of Americans say they personally know someone who is transgender, compared to 90 percent
of Americans who say they personally know someone who is lesbian, gay or bisexual. With a majority of people not even knowing someone who is transgender, most people are not likely to witness — much less share — the experiences transgender individuals face when aligning their social, medical and legal identities with their gender identities. By understanding what is involved in aligning one’s identifying documents — such as driver’s licenses and passports — with one’s actual gender identity, those of us who will never face such hurdles can perhaps at least empathize with the transgender population in our frustration over lengthy applications and uncooperative clerks. What does it mean to be transgender? In short, being transgender means identifying as a gender other than the one that was assigned at birth based on external sex organs. Some people are physically intersex — having organs of both sexes. Some of the progress in gender-identification law, according to Danny Kirchoff (cq) of TLC, has been made from a foundation laid by a desire for intersex people to have an option other than “M” or “F” for their documents. But being transgender goes beyond merely “feeling” like “the other” gender, which is why transgender people and their advocates continue to fight for recognition of their situation and solutions to their problems with traditional gender identification. Although California is one of a handful of states that has legal protections for transgender people against discrimination, many nevertheless experience it. One aspect of that discrimination derives from a distrust or feeling that transgender people are “hiding something.” This distrust can be enhanced when a person’s identifying documents, such as driver’s license or passport, denote a gender marker that is different than how that person identifies. This is especially true when the person’s outward appearance, whether due to clothing and hairstyle or full hormonal and surgical transition, does not align with the “F” or “M” on those documents. Findings from the National Transgender Discrimination Survey, suggest that 27 percent of transgender citizens who have transitioned — that is, those who live their daily lives in a way that outwardly projects their gender identity — have no forms of ID that accurately reflect their gender. The process for changing gender designations on IDs is fairly streamlined
in California, due to the availability of forms from some agencies. For instance, the Department of Motor Vehicles (DMV) provides form DL-329 to facilitate a gender change on a driver’s license. For a formal name, the Court provides forms for a change of name change only, for change of name and gender, and for gender alignment only (series NC-100, NC-200 and NC-300, respectively). As of July 1, 2014, individuals who are doing a name change for the purpose of matching their name to their gender identity can check a box to indicate this, which will give them certain privacy protections. For instance, they usually will not have to attend an in-person hearing and they will not have to publish their name change in a newspaper.
Twenty-seven percent of transgender citizens who have transitioned — that is, those who live their daily lives in a way that outwardly projects their gender identity — have no forms of ID that accurately reflect their gender. Medically, no specific hormonal treatment or surgery is required for people to match their California ID to their gender identity. All that is required from the DMV, for instance, is a statement from the applicant’s physician or psychologist as to whether the person’s gender identification is “complete” or “transitional.” For passports, applicants “will essentially apply for a new passport with form DS-11,” said TLC’s Kirchoff, “even if they are able to renew otherwise,” Despite the legal ability to update IDs to reflect a person’s gender identity and, quite often, name change, many people encounter, at best, confusion from people who do not understand which name or pronouns to use at which stage of the process, or, at worst, active resistance and animosity. Local transgender rights attorney Mattheus Stephens (cq) of Progressive Law Group described his process.
UNDERSTANDING GENDER DYSPHORIA Gender dysphoria, formerly known as gender identity disorder (GID), is a serious medical condition codified in the International Classification of Diseases (10th revision; World Health Organization) and the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders–5th edition (DSM-V). The condition is characterized by an incongruence between one’s experienced/expressed gender and the sex that was identified and assigned to that person at birth, and the resulting clinically significant distress or impairment of functioning that results from this incongruence. The suffering that arises from this condition has often been described as “being trapped in the wrong body.”“Gender dysphoria” is also the psychiatric term used to describe the severe and unremitting emotional pain associated with the condition. In diagnosing gender dysphoria in adults, clinicians look for a combination of things, including an incongruence between one’s experienced/ expressed gender (the gender they feel they are) and the gender associated with their physical characteristics (the gender identified and assigned at birth) that has lasted at least six months, a strong desire within the person to be rid of their primary and/or secondary sex characteristics or to gain the primary and/or secondary sex characteristics of the other gender, or a strong desire to be of the other gender or some alternative gender, or a strong desire to be treated as the other gender or some alternative gender, or a strong conviction that one has the typical feelings and reactions of a different gender. “Without treatment, individuals with gender dysphoria experience anxiety, depression, suicidality and other attendant mental health issues. (See, “It’s definitely gotten easier but people can hit snags,” Stephens said. “[My experience included] continuing to receive correspondence from government agencies using female pronouns as we were exchanging the necessary paperwork, so in essence an active resistance to using my preferred pronouns.” Unless a person’s birth name and gender are necessary in a particular circumstance, people should use a transgender person’s preferred name and gender pronouns as soon as they are known. Stephens also got resistance from the Social Security Administration, even though he kept the same Social Security number (“most people don’t,” he said). After providing the proper paperwork three
e.g., Fraser, 2009; Schaefer & Wheeler, 2004; Ettner, 1999; Brown, 2000, DSM-V [2013]). They are also frequently socially isolated because they carry a burden of shame and low self-esteem, attributable to the feeling of being inherently ‘defective.’ This leads to stigmatization that over time proves ravaging to healthy personality development and interpersonal relationships. As a result, without treatment, many are unable to function effectively in occupational, social, or other important areas of daily living. A recent survey shows a 41% rate of suicide attempts among transgender people, far above the baseline rates for North America. (Haas, et al., 2014).” Entire previous text paraphrased or quoted from the Expert Declaration of Dr. Randi C. Ettner that was included as an attachment to the published settlement of Quine v. Beard, (U.S. District Court for the Northern District of California (San Francisco Division), Case No. C 14-02726 JST [2016]), the case of a transgender woman, Shiloh Quine, held in a men’s prison, who sued the California Department of Corrections and Rehabilitation for genderaffirming medical treatment and relocation to a women’s prison. For more information: • Legal support for transgender individuals: http:// transgenderlawcenter.org/ • Research: http://williamsinstitute.law.ucla.edu/ • Federal Court cases: https://www1.eeoc. gov//eeoc/newsroom/wysk/lgbt_examples_ decisions.cfm?renderforprint=1 • National Transgender Discrimination Survey: http://www.thetaskforce.org/injusticeevery-turn-report-national-transgenderdiscrimination-survey-lmultiracial-respondents/
times and being told he needed a court order that he did not need, he finally spoke with someone in the national office. “They recommended going to a different location,” he said. “The little office in La Mesa processed it just like that; no question, no humiliation or resistance. Absolutely polite and professional.” As more people become familiar with the concept of gender identity and the struggle of transgender people to align their personal and legal identities, perhaps society will welcome this aspect of diversity more readily. And the discrimination against transgender people will become a vestige of the past. Elizabeth Blust (egblust@blustlaw.com) is a solo practitioner. September/October 2016 SAN DIEGO LAWYER 19
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It's what I can Do: Not what I can't
"It's What I Can Do;
M
ost people know someone who is challenged with a disability — 19 percent of Americans have a disability. But what about lawyers? Reporting is scarce and inconsistent. Eight percent of the lawyers responding to a 2013 ABA survey acknowledged a disability. A national law firm poll, however, to which 110,000 lawyers replied, only reported 255 with disabilities — a mere 0.23 percent. Our profession has been slow to eradicate barriers for lawyers with disabilities: physical obstacles making courtroom access difficult; law schools slow to make accommodations that the Americans with Disabilities Act called for; and unspoken bias against those with mental disabilities. Yet lawyers with disabilities have served this community, their clients and the profession well. What can we learn from them?
Not What I Can't." Attorneys with Disabilities Making an Impact in San Diego By Peter Lynch It's what I can Do: Not what I can't
Hon. David Szumowski (Ret.) Judge Szumowski — a Silver Star recipient blinded during combat in Vietnam — retired at age 71 after 18 years on the bench. He attended Denver University School of Law in the 1970s with four other blind students. Computers were not ubiquitous then; he used cassette tape recorders and paid readers to assist with day-to-day class work. He reviewed his daily tapes, synthesizing each to 10 minutes of compressed notes. His student assistant read exam questions and wrote out his answers in blue books. He used the same process to pass the Colorado Bar. He came to California, working with the VA, while he took and passed the California Bar. He interviewed, unsuccessfully, with a few private firms. In retrospect, the expense of hiring a paralegal to assist him may explain why. He set up his own practice with the help of a Small Business Administration loan; he used some high-tech braille displays, a Kurzweil reader to scan print documents and some sighted help from a secretary. In a time of frustration, his independent practice failed.
Then he had a turn of fortune. Encouraged by his wife, Janice, he applied to the District Attorney’s office, which hired him, first in a Welfare Fraud unit; next, trial work in South Bay; then, to the Superior Court Division as a trial lawyer. The office hired a paralegal as his researcher, reader and assistant in trial preparation and at trial. In 1998 Judge Szumowski was appointed to the San Diego Municipal Court — the first sightless person appointed to the California bench. He became a Superior Court Judge later that year with the court consolidation. With his seeing-eye dog, Speedwell, he presided in Department 12, overseeing felony arraignments, the irises of his prosthetic eyes, a striking blue. “When I first started doing this business, I raided a machine that stood as tall as my waist — two tape recorders, reel-to-reel if you can remember the size of those things — and now we’ve got scan cameras the size of a pack of cigarettes. It takes pictures of whatever I’m reading and in four seconds starts reading it back to me on my computer.” Looking back, His Honor recognizes that part of his success came from the early support from the District Attorney’s willingness to provide a paralegal and equipment he needed, and to take a chance on him. September/October 2016 SAN DIEGO LAWYER 21
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Jennifer Varga Jennifer practices with the Law Office of Megan Nunez. A student with autism spectrum disorder, she could not get additional time she needed for the LSAT. In spite of that, she entered law school. Then, at law school, whenever she requested accommodation, she faced the perception that she was getting an unfair advantage. In fact, in a constitutional law class, the discussion focused on the “unfairness” of extra time for those with disabilities — even though the Americans with Disabilities Act has been law since 1990. One professor recounted that he volunteered at a suicide prevention program but often thought, Why don’t you just do it already? “Why volunteer, if he felt that way?” asked Jennifer. “It’s a discouraging reminder of the deep entrenched prejudice those suffering mental disabilities face.” Jennifer works in special education law, working with parents and students, where her personal experience overcoming similar obstacles is an asset. Many students, like many attorneys, do not want to reveal their
conditions to avoid being treated differently. For Jennifer, the best way to dispel stereotypes is to defy them. Where From Here? What do the personal experiences of Judge Szumowski and Jennifer Varga, and many others, tell us? Two things at least: lawyers with disabilities contribute significantly; and the profession needs to do more. Employers remain reluctant to hire because of cost concerns; perceived difficulty in accommodation; or resistance to change. But reasonably accommodating those with disabilities provides our profession the opportunity to champion the rule of law — by ensuring that all persons can fully participate. A quarter-century ago, we became the first nation to declare equality for our citizens with disabilities — to ensure equal access, equal opportunity and equal respect for every American. But if our own professional institutions do not include those with disabilities, why should society as a whole? Where do we go from here? One step is actively to involve our schools (San Diego Unified School District, UCSD, SDSU and our three law schools), seeking both their input and commitment to make sure qualified
students are identified, encouraged and supported to pursue a career in law. Another is mentoring potential candidates by participating at career-fair days to encourage students with disabilities. Our community has “bring-your-child-to-work” day. Should we not consider that same outreach effort for those who may be interested in law? It will, however, take committed volunteers. In the Marines, I learned one steadfast principle: “Leave no one behind.” Succeed as a team or fail as one. Our profession needs to leave no one behind (or out) in recruiting, hiring, retaining or promoting those with disabilities. It will be richer for the effort. Peter Lynch (plynch@cozen. com) is office managing partner and vice-chair with Cozen O’Connor.
Since April 2016, a group of lawyers interested in disability-related law and those with disabilities have met monthly at the Bar Center. They actively work with local school districts, universities and law schools on how to better address these issues. All are welcome.
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FRANK J. BARONE
County of San Diego, Office of the Primary Public Defender
Years as SDCBA member: 17 Areas of practice: Indigent Criminal Defense, Juvenile Law, Appellate Litigation
PATRICIA P. HOLLENBECK
RENÉE N. GALENTE
Galente Law, APC
Years as SDCBA member: 8 Areas of practice: Plaintiff-Side Personal Injury, Military and Criminal Defense
CHRISTOPHER M. LAWSON
Duane Morris LLP
San Diego County District Attorney’s Office
Years as SDCBA member: 30 Areas of practice: Civil Litigation (Business, Franchising, Class Action, Intellectual Property)
Years as SDCBA member: 10.5 Areas of practice: Criminal Prosecution
DAVID M. MAJCHRZAK
TEODORA D. PURCELL
Klinedinst PC
Fragomen, Del Rey, Bernsen & Loewy, LLP
Years as SDCBA member: 14 Areas of practice: Appellate, Legal Ethics and Law Firm Risk Management, Professional Liability
Years as SDCBA member: 14 Areas of practice: Immigration and Nationality Law
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GARRISON “BUD” KLUECK
Law and Mediation Firm of Klueck & Hoppes
Years as SDCBA member: 28 Area of practice: Family Law, Alternative Dispute Resolution, Juvenile
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Vote for Your 2017 SDCBA Board of Directors Online Polls Open Friday, October 14 through Friday, November 11 To participate in the 2017 Board of Directors election and to read more about the candidates, visit www.sdcba.org/2017election. Voting will take place online until November 11. If you do not want to vote online, you may request a paper ballot by contacting Heather Breen at (619) 321-4113 or hbreen@sdcba.org. All votes must be received by 5 p.m. on November 11. All SDCBA attorney members are eligible to vote in the 2017 election.
I wrote this intro, but I'm thinking I should offer Stacie to write, or at least edit what I wrote?
FOSTERING GROWTH THROUGH DIVERSITY Read a special extended version of this feature online at www.sdcba.org/2016DFP
DIVERSITY FELLOWSHIP PROGRAM
The SDCBA and ACC-SD’s Diversity Fellowship Program (DFP) has paired diverse first-year law students with law firms and corporate legal departments in San Diego since 2009. The goals of DFP are twofold: to increase the number of diverse attorneys in San Diego, and to introduce employer participants to competent recruits who might not have been identified through other traditional means. Here, the 2016 participants discuss the importance of diversity and inclusion, and what DFP has meant to them.
ANDREWS • LAGASSE • BRANCH & BELL LLP Jonathan Andrews Managing Partner & Founding Member Diversity and inclusion betters our firm on every level. From a cultural standpoint, diversity fosters tolerance and camaraderie in the workplace in that we recognize and value our differing backgrounds and life experiences. In turn, the diversity of our lawyers’ experience broadens our reach in the community and allows us to connect with clients we may not otherwise encounter. Diversity is critical to DIVERSITY FELLOWSHIP PROGRAM our ability to successfully adapt to the ever-changing industry.
DFP
Miguel Medina California Western School of Law The Diversity Fellowship was a once-in-a-lifetime opportunity. I gained a valuable amount of experience and made great connections. It was the best summer experience I could have possibly had after my first year of law school.
BROWN LAW GROUP Luis Lorenzana Associate Kevonna exceeded our expectations and by doing so, she taught us that although starting the practice of law can be overwhelming, we should never underestimate what these aspiring attorneys can handle if only given a chance.
Kevonna Ahmad California Western School of Law My biggest takeaway from my fellowship is that 90 percent of becoming a good lawyer is by hands-on experience. My researching, writing and communication skills have improved tremendously during my DFP experience. Not to mention all the attorneys at BLG are rockstars and were there to help me every step of the way.
COZEN O’CONNOR Peter Lynch Member Leading by example, our DFP fellows consistently reinforce the importance of balancing a desire for personal success with a sense of responsibility for the greater good. Our fellows display a keen desire to succeed on a personal level, but also display a strong internal drive to bolster services available to impacted diverse groups. The future looks bright for the practice of law, thanks in large part to the DFP fellows joining our ranks, with a clear eye on leading the charge toward a better tomorrow.
Leah Rosario University of San Diego School of Law My mentors at Cozen are exceptional. I feel that they genuinely care for my personal and professional development. For example, I mentioned to an attorney at Cozen that I was thinking about going into litigation. She immediately arranged for me to attend court hearings so I could observe arguments. After, she took time to share with me her own experience in litigation. Moments like these have happened time and again at Cozen. I realize that I’m very fortunate to experience this level of mentorship. September/October 2016 SAN DIEGO LAWYER 25
DIVERSITY FELLOWSHIP PROGRAM
FERRIS & BRITTON, APC DIVERSITY FELLOWSHIP PROGRAM
Stacey Mouton University of San Diego School of Law
Michael Weinstein Lawyer with Ferris & Britton, APC
Each time I connect with one of our seven past DFP fellows it is a standout moment. Each and every one of them has gone on to graduate, pass the bar and begin successful careers with law firms, large and small, both inside and outside of San Diego. In 2014 we hired our former 2012 DFP fellow, Justin Paik, as a full-time associate and he remains with our firm today. It is tremendously satisfying to be part of the success of all these young lawyers.
DFP
On the first day of my clerkship, Michael Weinstein, the firm’s managing partner, invited me to an office Trivia Night competition. Employees and friends of the firm made attendance a weekly tradition; I was simply amazed at the cordiality extending beyond the confines of the office and into more social settings. That very same supportive, nurturing behavior helped guide and shape my development throughout the summer, and highlighted the qualities I hope to one day embody as an attorney.
DIVERSITY FELLOWSHIP PROGRAM
HIGGS FLETCHER & MACK LLP Susan Hack Partner Our firm constantly strives to remain true to our commitment to the SDCBA’s Diversity Pledge. Participation in the Diversity Fellowship Program is one rewarding way we accomplish that. What I enjoy hearing every year is the positive feedback from attorneys at our firm who work with the fellows. Higgs looks forward to supporting the program for years to come.
Armando Diaz-Lombardo Thomas Jefferson School of Law As someone who hadn’t interned at a law firm before, I was very nervous during my first few days. My employer provided me with a lot of support and guidance. Because of that, my skills have greatly improved and I feel more confident about my performance with various types of legal work.
KLINEDINST PC Nima Shull University of San Diego School of Law
Heather Rosing Chief Financial Officer, Shareholder We have learned a lot from our fellows. They are smart, goal-oriented students who have new and innovative ways of doing things. Our fellows have taught us that the only constant is change, and it is important for us to keep developing and innovating as a business. This new generation, which comes from a variety of amazing backgrounds, has given us truly fresh perspectives.
I was astonished by how inclusive the entire team of attorneys and staff were to me during my summer with Klinedinst PC. Everyone at the firm played an active role in ensuring that I was immersed in several aspects of the firm’s events including hearings, client meetings, attorney meetings and social events.
MINTZ LEVIN COHN FERRIS GLOVSKY AND POPEO PC Sarah Roberts Legal Recruiting Coordinator Bringing talented people together in an inclusive workplace means greater efficiency and better ideas for our clients. Our DFP fellow Yarazel reminded us that our inclusive culture enhances creativity and collaboration across each of our practice areas. She also reminded us that partnerships such as this are key to our pipeline for diversity.
26 SAN DIEGO LAWYER September/October 2016
Yarazel Mejorado University of San Diego School of Law I heard the following quote during my Mintz orientation: “Diversity is about who is on the team. Inclusion is about who gets to play.” I will continue to foster diversity by providing mentorship to young people who may not think a career as an attorney is an attainable goal. I want to make sure that everyone with a desire to “play” on the legal field has that opportunity.
DIVERSITY FELLOWSHIP PROGRAM DIVERSITY FELLOWSHIP PROGRAM
OGLETREE DEAKINS DIVERSITY FELLOWSHIP PROGRAM
Carmine Aiello California Western School of Law
Patti Perez Shareholder There were numerous standout moments with our DFP fellow Carmine, but it was particularly gratifying for her to see how her research and writing would have a direct and positive impact on our clients. She and I worked on many substantive employment law presentations and each time it was fantastic to see her realize how much her work contributed to the client’s expectations and bottom line.
I started law school right after finishing my undergraduate degree, so coming into the DFP, I did not have any work or volunteer experience in a legal capacity. I was most nervous about the transition from being a student and then putting into practice everything I learned. Each assignment I finished was a sort of affirmation that slowly but surely I was succeeding as a legal intern and that I could do it after all. DIVERSITY FELLOWSHIP PROGRAM
PAUL, PLEVIN, SULLIVAN & CONNAUGHTON, LLP
DIVERSITY FELLOWSHIP PROGRAM
Sharona Silver University of San Diego School of Law
Jeff Ames, Partner Freyaan Karanjia, Associate Having DFP fellows reminds us that although some aspects of the practice of law have changed dramatically over the past 10 or 20 years, developing the skills to be a successful young attorney still requires the same dedication and passion for the practice of law. PPSC is happy to support the DFP fellows as they begin their careers.
DFP DFP
The most important takeaway from my DFP fellowship was the self-realization that I have a lot to offer as a diverse individual. I learned how to trust myself and how to produce a great work product. This professional opportunity stimulated my personal growth and I look forward to continuing to grow and contribute to my future legal positions.
PÉREZ VAUGHN & FEASBY INC. Michael Pérez Partner We want our law firm to reflect our community and our clients’ workforce. When we add diverse perspectives and opinions to our legal team, we increase our abilities and expertise exponentially. Diversity is not simply adding “another” voice, but rather a different, intelligent and creative new voice. The Fellowship Program gives us the opportunity to better serve our clients by infusing a diverse perspective into our legal team.
Ana Burgos-Solis University of San Diego School of Law The experience as a diversity fellow is invaluable. In addition to research, writing, and attending depositions and court hearings, I had the mentorship of Mr. Feasby. Through his generous guidance, I gained the practical legal experience necessary for a strong foundation in law. Thanks to the DFP fellowship, I am now extremely well-prepared for the future.
PROCOPIO, CORY, HARGREAVES & SAVITCH LLP Tom Turner Managing Partner Diversity broadens our perspectives. It makes us better lawyers and better people. I consider the promotion of diversity and inclusion not only to be the right thing to do, but it is also increasingly viewed as a plus — if not a requirement — by prospective clients. It is a classic way to do well by doing good.
Teri Gibbs University of San Diego School of Law On the first day of my fellowship, one of Procopio’s partners took me around the office to give me a formal introduction to almost every attorney in the firm. After that warm welcome, several attorneys offered to assign me projects to offer me insight into the field. It was clear in that moment that the firm’s supportive, open-door atmosphere would provide me with the necessary mentorship that would help mold me into a successful law student and future attorney. September/October 2016 SAN DIEGO LAWYER 27
DIVERSITY FELLOWSHIP PROGRAM
SAN DIEGO COUNTY PUBLIC DEFENDER’S OFFICE DIVERSITY FELLOWSHIP PROGRAM
Our DFP fellow came to us with little experience in the criminal arena; however, Eva had a seed of passion for criminal defense. With this, a healthy level of observation and learning followed as she nurtured that passion. By the time the employment was over, Eva was engaging the clients and our fellow Public Defenders with ease and comfort. It was a fun growth spurt to observe.
DFP
Evangeline Dech California Western School of Law
Monique Carter Deputy Public Defender
It was easy to see that everyone at the office was passionate. Every attorney and every intern really wanted to be there and believed in what they were doing. This summer I was able to make amazing friends and learn from various perspectives on how different people approach the law. Without diversity at this office, it would be much harder to relate to our clients and to relate to other people.
SEMPRA ENERGY/SAN DIEGO GAS AND ELECTRIC
DIVERSITY FELLOWSHIP PROGRAM
Dawn Andrews General Counsel Sempra is committed to diversity and inclusion (D&I), not only to foster social justice, but also because they are crucial to market insight, customer/community loyalty and employee recruitment/retention. D&I are essential to Sempra’s culture, where people are encouraged to utilize their uniqueness to provide culturally appropriate services in every region.
Jessica Maiden California Western School of Law The most important takeaway from my DFP experience is learning that experienced attorneys are very willing to help law students. They are open to giving advice and mentorship. All you have to do is ask.
Justin Shields University of San Diego School of Law Diversity is important not only in the opportunities that it brings to underrepresented communities, but also in the infusion of new ideas and perspectives that it brings to firms. Moving forward, I plan to be more inclusive of different ideas and individuals in my leadership approach.
SONY ELECTRONICS INC. David Fisher Vice President and Deputy General Counsel Each year a group of us get together to consider the potential DFP candidates and are in amazement and awe from reading their personal statements and learning of the circumstances many of them had to overcome in order to attend college and law school. It really puts into prospective how fortunate we all are and energizes us to give back through our experiences.
Lily Duong University of San Diego School of Law The most important takeaway from my DFP experience is that it is critical to be open-minded when working with others. No matter what they look like or how they act, it is imperative to always operate under the mentality that you never know what a person has been through.
WILSON TURNER KOSMO LLP Carolina Bravo-Karimi Associate While I hope Sydney learned a lot at WTK, she also taught me a great deal. Sydney reminded me about the importance and power of true mentorship. Mentorship should not be limited to explaining legal theories or the civil procedure. Rather, a true mentor takes the time to discuss how to navigate a budding legal career, stresses the importance of reputation and integrity, and instills in mentees a sense of pride in the career they have selected. 28 SAN DIEGO LAWYER September/October 2016
Sydney Colbert University of San Diego School of Law The most important takeaway from my time with the DFP was the multitude of experience. I really appreciated the way the attorneys just gave me work to do and trusted me when I didn’t trust myself to know exactly what I was doing. Everyone there was so helpful and encouraged as many questions as possible.
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Our Resolve. Your Resolution. West Coast Resolution Group, a division of the National Conflict Resolution Center, has one purpose: to provide exceptional and affordable mediation services to the legal community. To achieve this goal, we have assembled a core group of experienced neutrals, including the following individuals
HAL ABRAMSON DOUGLAS BARKER SHAUN BOSS JIM CHODZKO JUDY COPELAND JOHN EDWARDS CHRIS HULBURT RICHARD HUVER JEFFREY ISAACS TIMOTHY RILEY To schedule a case with one of our neutrals, please contact Case Manager, Kathy Purcell at 619-238-7282 or visit us online at:
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The Case for Diversity These numbers show how a diverse workforce benefits businesses, employees and clients.
YOUR CLIENTS ARE CHANGING — SO SHOULD YOU By
2050
there will Be no
83%
racial or ethnic majority in the
u.s.1
of growth in the working-age population will Be new immigrants 1 and their children By 2050
EMPLOYEE ATTRACTION AND RETENTION
2/3
43%
of gay and lesBian workers report
of candidates say diversity is
mer employers if they offered Better
important when evaluating 3 companies and joB offers
they would have stayed with for-
lgBt anti-discrimination Benefits2
FIRM & BUSINESS IMPACTS
FINANCIAL BENEFITS
24.8%
on average, the most racially diverse companies Bring in nearly
15x more revenue
of corporate
indicated that
corporate legal
legal departments
diversity is
departments with
have awarded
an important consideration in selecting outside
performance with clients and they achieve
25% higher share of wallet
55%
of the largest
than the least racially diverse4
very diverse teams are 150%+ times more likely to achieve a perfect 10
53%
of corporations
counsel8
5
75+ attorneys
additional
track BillaBle
work to outside
ethnic minority
meeting diversity
hours for race/ attorneys8
counsel for expectations8
ARE YOU DOING ENOUGH? 57% of employees say their company needs to increase workforce diversity
1 2 3 4 5
3
https://www.americanprogress.org/issues/labor/news/2012/07/12/11900/the-top-10-economic-facts-of-diversity-in-the-workplace/ https://cdn.americanprogress.org/wp-content/uploads/issues/2012/03/pdf/lgbt_biz_discrimination_infographic.pdf https://www.entrepreneur.com/article/240550 http://www.insidecounsel.com/2014/11/17/the-5-hidden-benefits-of-a-diverse-legal-team Acritas Diversity Report 2016
58% of firms participate in minority joB fairs7 46% of firms have internal firm diversity programs7 6 7 8
https://www.glassdoor.com/press/twothirds-people-diversity-important-deciding-work-glassdoor-survey-2/ http://www.theiilp.com/resources/Documents/IILPBusinessCaseforDiversity.pdf http://www.mcca.com/index.cfm?fuseaction=page.viewpage&pageid=1622
September/October 2016 SAN DIEGO LAWYER 31
in San Diego This feature is part of a special series in recognition of the U.S. District Court, Southern District of California's 50th anniversary, which the court celebrated on September 16, 2016.
Celebrating Five Decades of the Southern District of California By Hon. Barry Ted Moskowitz
n early 1966 the Southern District of California encompassed half of the State and was headquartered at 312 North Spring Street in Los Angeles. Federal judges traveled 120 miles to hear cases at 325 West F Street in San Diego. The “Southern Division” shared the crowded building with the U.S. Marshal, two Assistant U.S. Attorneys, the FBI and other federal agencies. That changed on September 18, 1966, when Congress separated San Diego and Imperial counties into its own district and reassigned Los Angeles to the new Central District. Three remarkable men formed our new district — Judge Jacob Weinberger, Judge James M. Carter, and Judge Fred Kunzel. They became permanent residents of the historic courthouse that now bears Judge Weinberger’s name. Each of these founding jurists is remembered for his meticulous adherence to the rule of law and to the rule of civility — treating each attorney and litigant with the utmost respect. Judge Weinberger had been a resident jurist in San Diego since 1949. He had taken senior status in 1958 but continued to carry
I
a full caseload. He volunteered to preside at naturalization ceremonies because he had sailed by the Statue of Liberty as a 7-yearold when his family entered the United States. By reason of seniority, Judge Carter became the Chief Judge. Judge Carter is the father of our district. He was a visionary in many areas, including his commitment to create a district to serve the growing needs of the San Diego region. He spearheaded the movement to establish the federal defender program to ensure that the poor would not face criminal charges without representation by competent counsel. He also developed pretrial procedures to ensure the smooth, efficient resolution of criminal and civil cases. Judge Kunzel was a veteran of both World Wars. In 1917, the 16-year-old interrupted his education at San Diego High School to fight with the Army artillery in France. In 1942, he interrupted his admiralty and corporate law practice to enlist in the Navy. During his tenure as Chief Judge, he reached out to judges across the country to serve as visiting
Each of [our] founding jurists is remembered for his meticulous adherence to the rule of law and to the rule of civility – treating each attorney and litigant with the utmost respect.
judges to help handle our high volume of criminal cases. In 1968, the Honorable Edward J. Schwartz joined the Court. A year later, he became the new Chief Judge. He valiantly led the campaign to construct the courthouse and office building at the corner of Front and Broadway. On our 28th anniversary, we named these structures after the 82-year-old man who had “built a court and a courthouse.” The former refers to Judge Schwartz’s sagacious and compassionate leadership, and the latter to his fight to appropriate sufficient funds to house the growing district and its overcrowded docket. In the 1970s, Judges Howard Turrentine, Gordon Thompson Jr., Clifford Wallace, Leland Nielsen and William Enright joined the Southern District. Like Carter, Wallace was soon elevated to the Ninth Circuit Court of Appeals. The five-man court labored long hours to handle the heaviest criminal caseload in the nation. The existing courthouse, which had opened in 1913 primarily as a post office, lacked space. Trailers were set up in the parking lot. Judge Nielsen held court in a trailer that had once been used by President Nixon’s staff at the “Western White House” in San Clemente. The federal detention facility, the Metropolitan Correctional Center, opened in 1974, thereby ending our reliance on the county jail.
September/October 2016 SAN DIEGO LAWYER 33
Judge Turrentine succeeded Judge Schwartz as Chief Judge on March 26, 1982. He stepped down on his 70th birthday, January 22, 1984. Since every Chief Judge thereafter has served his or her full sevenyear term, we have “passed the gavel” every seven years on Judge Turrentine’s birthday, January 22. In 1984, those duties passed to Chief Judge Thompson. He had the unique honor of giving the oath of office to his brother, David, when he was appointed to the Ninth Circuit Court of Appeals. The 1980s brought diversity to the federal bench. President Jimmy Carter selected the first woman and first person
President Jimmy Carter selected the first woman and first person of color by bringing Judge Judith Keep and Judge Earl Gilliam Jr. from the Municipal and Superior Courts.
of color by bringing Judge Judith Keep and Judge Earl Gilliam Jr. from the Municipal and Superior Courts. Chief Judge Keep became Chief on January 22, 1991. She was followed by two women — Chief Judge Marilyn Huff and Chief Judge Irma Gonzalez. These tenacious leaders garnered the necessary resources to design and complete a modern courthouse, and to secure additional judges essential to the administration of justice in this busy region. Meanwhile, Judge John Rhoades preserved our early history by protecting our original courthouse, which is now home to our Bankruptcy Court. Judge Rhoades also chaired the committee to build the new courthouse. Upon Judge Rhoades’ death, Judge Rudi Brewster volunteered for the assignment. Both took great joy in watching the 16-story tower rise, though neither lived to see the project completed. Recently, the new courthouse was named to honor Judge Carter and Judge Keep, and the six-square-block campus was named for Judge Rhoades. Our Court continued to grow in the decades before and after the turn of the 21st century. Three of the judges
appointed in the late 1990s — Judges Jeffrey Miller, Thomas Whelan and M. James Lorenz — have since taken senior status. As semi-retired Article III judges, their service is essential to the management of our onerous caseload. They provide an important measure of wise counsel and continuity in the management of court business. As mentioned, Chief Judge Huff’s concentrated efforts added five judgeships to the district in 2003. Two of those appointees are in line to lead the district in the future — Judge Larry A. Burns and Judge Dana M. Sabraw. Today, our 32 judicial officers — and almost 500 hardworking clerks, interpreters, pretrial and probation officers, and many others — work to protect the constitutional and legal rights of the 3.5 million residents of San Diego and Imperial counties. On the occasion of our golden anniversary, we celebrate our distinguished past and anticipate a future of continued excellence. Hon. Barry Ted Moskowitz is Chief Judge of the U.S. District Court, Southern District of California.
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50th Anniversary Federal Court in San Diego
Justice and Education Unite The Southern District’s Learning Center By Hon. Janis Sammartino
C
ourts are obligated to serve the public by conducting fair and impartial civil and criminal proceedings. That is our dominant and sacred duty. For the most part, aside from witnesses and family members, these proceedings are conducted in relative privacy. Our hallways are quiet and the galleries empty. In recent years, federal courts have begun to actively invite the public inside on days when they are not carrying a jury summons. For several years now, I have chaired the Ninth Circuit’s Courts and Community Committee. We try to entice judges and lawyers to teach the public about the federal courts. In 2013, I brought that project home to San Diego by establishing the Learning Center Committee. Our main goal is to inform the community of the role an independent judiciary fulfills in our constitutional democracy. The court’s 50th anniversary has further inspired our efforts to participate fully in civic education programs.
In 2016, we will host 50 events, welcoming over 3,000 students. Visitors range from third-graders to senior citizens. The Learning Center, which consists of five components, arose out of the court’s existing, active community outreach program. These ongoing programs constitute the first component of the Learning Center. In 2016, we will host 50 events, welcoming over 3,000 students. Visitors range from third-graders to senior citizens. Two popular presentations are the Federal Jobs Panel and the Constitution in Action. Teachers give high marks to the Jobs Panel, where representatives from the court, clerk’s office and many affiliated agencies including probation, law enforcement,
and the federal jail describe their career paths. We ask presenters to emphasize the importance of education and explain how they paid for college. The Constitution in Action program begins with students observing a law and motion calendar. After the hearings, the students meet a judge or a defense attorney and prosecutor. They explain the proceedings and review the Bill of Rights. They discuss how the constitutional guarantees might impact the students’ activities. The lively exchanges have covered questions ranging from privacy of information on cellphones to how to handle a traffic stop. The next two components of the Learning Center are traveling and permanent exhibits. Our first major traveling exhibit explained the significance of the little known case of Mendez v. Westminster School District of Orange County. The Museum of Teaching and Learning created the exhibit and our employees served as docents. Between October and December 2014, nearly 500 local children learned that the Southern District of California enjoined the segregation of children of “Mexican or Latin descent” in a separate school. The 1946 decision predated the Supreme Court’s Brown v. Board of Education ruling by a decade. Another exhibit, a permanent display, is visible from the street. Visitors can stroll by the windows on Broadway to view the creative posters from the Bar Association’s Law Week competition. This year’s theme was the Preamble to the Constitution. We have spaces to display 13 of the students’ colorful entries. We will update this display annually, as students compete for the opportunity to share their civics-themed artwork. We recently installed the “Then and Now” exhibit in the jury lounge. The five floor-to-ceiling panels include biographies of judges, highlights of national and local events, and samples of significant cases from the past five decades. Soon, we will install an exhibit on the 15th floor of the
Top: Senior Judge Jeffrey Miller answers questions about court proceedings and explains the role of an independent judiciary to an attentive audience of teens. Bottom: "Intermission," a mural work by local artist Kim MacConnel on view in the jury lounge, mirrors the diversity of the jurors.
September/October 2016 SAN DIEGO LAWYER 35
in San Diego
Carter/Keep Courthouse celebrating naturalization ceremonies. Though many know that our docket consists of thousands of criminal immigration matters, few may know that our judges preside over hearings to welcome thousands of new citizens each year. In his time, Judge Weinberger conferred American citizenship on 16,000 individuals. It was his greatest joy because he was an immigrant too. The fourth component of the Learning Center is the Historical Walking Tour, a recent addition to our menu. When Congress named the James M. Carter and Judith N. Keep Courthouse, it named the cluster of federal buildings as the John Rhoades Federal Judicial Center. We created a brochure to guide guests around the five-block campus and 18 historical and architectural features. For example, Kim MacConnel, a local artist, designed the vibrant murals in the jury assembly areas. The shapes and colors echo international design elements, which in turn reflect the diversity of
In his time, Judge Weinberger conferred American citizenship on 16,000 individuals. It was his greatest joy because he was an immigrant too.
36 SAN DIEGO LAWYER September/October 2016
the juror pool. Another highlight of the walking tour is the Jacob Weinberger Courthouse. This beautiful building is on the National Register of Historic Places. Now used for bankruptcy proceedings, the 1913 courthouse is open to the public for tours. I encourage you to take the iron-cage elevator or marble staircase to the third floor to view the Works Progress Administration paintings of San Diego scenery from the 1930s. The final component of our Learning Center is our website. It provides information about the history of the Southern District of California, including videos, and our Learning Center, including lesson plans. There are links to additional information on civics education. Our work is ongoing. Our Advisory Committee contributed a long list of ideas. We plan to install educational displays on subjects such as public protests, the Treaty of Guadalupe Hidalgo and diversity on the bench. There will be displays that explain the path of a criminal and a civil case, and the role of the appellate courts. Posters will describe the jobs of the behind-the-scenes employees who are essential to the operation of the court. We have many blank walls and empty spaces yet to be filled. Future plans include interactive displays as well as artwork such as the sketches made by reporters during noteworthy trials. This is your court. We invite you to share your ideas and memorabilia to make it an interesting, educational public space. Hon. Janis Sammartino is District Judge for the U.S. District Court, Southern District of California.
Taking Mediation to New Heights. CRAIGHIGGS.COM
July/August 2016 SAN DIEGO LAWYER 38
Debate Series: The Duty to Defend 2.The “All Elements” of a Covered Claim Argument
Point
The Duty to Defend Identifying a Wrongful Denial By Dominic Nesbitt and Gary Osborne
Counterpoint: Want to hear the defense's take? Keep a look out for the other side of this argument in the November/December 2016 issue of San Diego Lawyer.
E
xactly 50 years ago, the California Supreme Court laid down the standard for determining whether a liability insurer owes a duty to defend a third-party lawsuit filed against its insured. The Court held that an insurer “must defend a suit which potentially seeks damages within the coverage of the policy” (Gray v. Zurich Ins. Co., 65 Cal.2d 263, 275 [1966]). Over the years since Gray, the California Supreme Court has repeatedly affirmed the “potential for coverage” standard, making clear that an insurer will only be relieved of a duty to defend if the third-party complaint can “by no conceivable theory” raise a “single issue” that would bring it within the policy coverage. (Montrose Chem. Corp. v. Superior Ct., 6 Cal.4th 287, 300 [1993]). Moreover, insofar as what an insurer must consider in evaluating whether there exists a “potential for coverage,” the California Supreme Court has made clear that an insurer must consider all known facts, including facts extrinsic to the third-party complaint. See Scottsdale Ins. Co. v. MV Transp., 36 Cal.4th 643, 655 (2005). Despite this black-letter law, certain liability insurers in California continue to disclaim defense obligations based on arguments
that run afoul of the potential for coverage standard. Five of these arguments are described below. 1. The Covered “Cause of Action” Argument Liability insurers will sometimes deny a defense obligation on the ground that the third-party complaint filed against the insured does not allege a “cause of action” covered by their policy. For example, even where a complaint includes factual allegations of slander or libel (an offense typically covered by a standard CGL policy), an insurer may deny it owes a defense if no formal cause of action labeled “libel,” “slander” or “defamation” has been pled. Such a denial may well be wrongful. California law is clear that the duty to defend turns on the facts pled, or otherwise known to the insurer, and not on which formal causes of action the plaintiff’s attorney has chosen to plead in the complaint. See Scottsdale, supra, 36 Cal.4th at 654 (“[T]hat the precise causes of action pled by the third party complaint may fall outside policy coverage does not excuse the duty to defend where, under the facts alleged, reasonably inferable, or otherwise known, the complaint could fairly be amended to state a covered liability.”).
Another related argument made by certain liability insurers is that they owe no duty to defend unless the third-party complaint alleges “all essential elements” of a covered claim. However, there is no such requirement under California law. See Barnett v. Fireman’s Fund Ins. Co., 90 Cal.App.4th 500, 510 (2001) (rejecting the insurer’s argument that a plaintiff must allege “all of the elements” of a covered cause of action in order to trigger the duty to defend). 3. The “Gravamen” of the Complaint Argument Insurers will sometimes take the position that no defense is owed where the gravamen of the third-party complaint involves uncovered injuries and claims. Such an argument, however, cannot be squared with the California Supreme Court’s affirmation in Montrose, supra, that an insurer will be relieved of its duty to defend only if the complaint can by no conceivable theory raise a “single issue” within the policy coverage. Courts that have considered the gravamen argument made by insurers have soundly and consistently rejected it. See Horace Mann Ins. Co. v. Barbara B., 4 Cal.4th 1076, 1084 (1993) (rejecting insurer’s argument that certain alleged misconduct “could not possibly give rise to liability” because other non-covered misconduct was the “dominant factor” in the case); see also Pension Trust Fund for Operating Engineers v. Federal Ins. Co., 307 F.3d 944, 951 (9th Cir. 2002) (“California courts have repeatedly found that remote facts buried within causes of action that may potentially give to coverage are sufficient to invoke the defense duty.”). 4. The “Insured Is Not Liable” Argument Some insurers will argue that where the insured has a cast-iron defense (e.g., a statute of limitations defense) against the third-party complaint, it follows that the insured faces no potential for covered liability, and therefore no duty to defend is owed. This argument turns the entire concept of the duty to defend on its head and has been rejected by courts and leading commentators. Simply stated, an insured purchases and expects insurance protection against both September/October 2016 SAN DIEGO LAWYER 39
Debate Series: The Duty to Defend valid and invalid claims. See Horace Mann, supra, 4 Cal.4th at 1086 (“An insured buys liability insurance in large part to secure a defense against all claims potentially within policy coverage, even frivolous claims unjustly brought.”); see also Croskey et al., Cal. Practice Guide: Insurance Litigation (The Rutter Group 2015), ¶ 7:522 (“The insured does not have to prove the claim against it is valid in order to obtain a defense!”). 5. An “Exclusion” Precludes a Duty to Defend Argument Insurers will sometimes rely upon an unproven and disputed allegation made in an underlying complaint to invoke a policy exclusion. California law, however, imposes a very high burden on insurers that seek to evade a defense obligation based upon a policy exclusion. This heavy burden was described by Justice H. Walter Croskey in Atlantic Mutual Ins. Co. v. J. Lamb, Inc., 100 Cal.App.4th 1017, 1039 (2002), as follows: “[A]n insurer that wishes to rely on an exclusion has the burden of proving,
through conclusive evidence, that the exclusion applies in all possible worlds.” Therefore, at the duty to defend stage, an insurer may not rely upon unproven allegations to establish an exclusion’s application. If there exists any “potential” that the exclusion ultimately may not apply to a judgment in the underlying action, a duty to defend is owed. See Gray, supra, 65 Cal.2d at 277 (intentional act exclusion did not negate defense against allegations of assault because the insured might prove at trial he engaged only in non-intentional tortious conduct). Two federal district courts in California recently applied a number of the rules discussed in this article. See KM Strategic Management, LLC v. American Cas. Co. of Reading, PA, 2015 U.S. Dist. LEXIS 171435 (C.D. Cal. Dec. 21, 2015), and MedeAnalytics, Inc. v. Federal Ins. Co., 2016 U.S. Dist. LEXIS 21377 (N.D. Cal. Feb. 19, 2016). In both cases, the district courts held that the CGL-insurer defendants breached a duty to defend underlying third-party lawsuits
that included allegations of defamation, despite the fact that no cause of action for libel or slander had been pled. The courts also found that the insurers wrongfully relied upon an exclusion in their policies for claims arising from a “breach of contract.” The courts held that to invoke this exclusion, the insurers required conclusive evidence that their insureds had actually — not just allegedly — breached a contract. Because neither of the insurers had such evidence, they were found liable for breaching the duty to defend. As reflected in these recent decisions, the potential-for-coverage standard laid down in Gray v. Zurich, supra, remains as valid today as it did 50 years ago.
Dominic Nesbitt (dnesbitt@onlawllp.com) and Gary Osborne (gosborne@onlawllp.com) are partners with Osborne & Nesbitt LLP.
Comics, Creators & Capital
Tips for superhero creators and their lawyers by Doug Lytle The following are a few tips discussed by attorneys Stu Rees, David Lizerbram and Alan Haus during "Comics, Creators & Capital," a CLE program hosted by the SDCBA Entertainment & Sports and Intellectual Property Law Sections in August 2016. Topics covered at the program included fan films — works made by fans of existing entertainment properties; history; recent news; copyright and trademarks issues; and fair use.
Stu Rees:
David Lizerbram:
“For comic artists, filing copyright registrations is like flossing.” It takes time and you have do it regularly, but it is necessary if you want to protect yourself.
Still relevant and interesting today is Kevin Kelly’s paradigmshifting blog post “1,000 True Fans” (http://kk.org/ thetechnium/1000-true-fans/). It identifies a great way to build a brand and business.
“The Fair Use Statute [17 U.S. Code § 107 — Limitations on exclusive rights: fair use] is a raging disaster.” A person’s view of a particular fair use issue is often just a matter of whether they are or represent the artist, or whether they are or represent the user of the work. Learn how to file your own copyright registrations. For people who create multiple works (that are not each immediately published), you can register multiple separate works in one application form and one fee as a collection of unpublished works. (See Unpublished Collections within Copyright Basics at www.copyright.gov/circs/circ01.pdf ) Most people who receive a copyright infringement demand letter simply take down the work and ignore the letter. They respond, however, when you send them the copyright registrations. At that point, they can expect to pay three times the normal licensing rate. 40 SAN DIEGO LAWYER September/October 2016
If a good artist has 100 followers who buy all of his or her works for $100 each, the artist could make a great living.
Alan Haus: Ninety percent of crowdfunding has been reward-based crowdfunding, as opposed to equity-based crowdfunding. Raising money on crowdfunding platforms like Kickstarter has been found to be akin to selling product with a long lead time, as opposed to being a security. In crowdfunding, more important than raising money is how it helps build a fan base. Douglas Lytle (dlytle@hcesq.com) is a partner with Henderson, Caverly, Pum & Charney LLP .
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MEDIATION DO'S & DON'TS
A seasoned mediator and attorney share their top tips for mediation success The Mediator’s Perspective By Craig Higgs
The Lawyer’s Perspective By Debra Hurst
Mediation is, after all, just a negotiation. The key to success is knowing who needs to be persuaded. While it is important to convince the mediator you’ve got a great case, it’s much more important to convince the other side, specifically the other side’s decision-makers. That process starts before the mediation. If you save your best stuff for the mediation session, it may be too late.
Good news! Opposing counsel has agreed to mediation. You advise your client that this is an opportunity not to be missed. Not only is this an opportunity to settle the case, but also an opportunity to learn more about your opponent’s case. You exchange names for a mediator who has a good reputation, but you have no experience with this mediator. How to maximize your prospect for settlement and avoid “mediator pitfalls”?
Do all you can to get the other side’s decision-makers to the mediation. Besides the opposing counsel, it might be a CEO, CFO or a claims manager. It also could be a spouse or another relative. Talk to the opposing counsel about who needs to be at the mediation and call the mediator if you run into problems.
Do a complete but concise mediation brief and send it to opposing counsel in time for them to get it to their decision-makers at least a week before the mediation. They need to have your brief in plenty of time to influence their evaluation. You may want to hold back some points for the mediation, but not as many as you think. Though it is unpopular these days, seriously consider having a joint session with the other side and the mediator. It is an opportunity to show the other side’s decision-makers that you know the case and are a formidable opponent. A joint session does not have to be adversarial; it can be done with respect. Having the other side’s decision-makers present can often give you insight, if only from their body language. It can also clear up smaller issues and help get the mediator off to a fast start. Also, listening to opposing counsel, while painful, can be helpful. As the old saying goes, “People are not prepared to listen until they first feel listened to.”
Do have a message that goes with each of your offers or demands when the money talks begin. Just having a dollar figure does not move the mediation forward very much, especially in the early stages of the negotiation. If the first demand is $1 million, it doesn’t do much good to offer $10,000 without indicating what this means, such as, “We have not seen evidence that this is even a mid six-figure case.”
When an impasse occurs toward the end of the negotiation, consider meeting together face-to-face with the opposing counsel. Sometimes he or she will be more candid outside the presence of his or her clients. As with all advice, these tips don’t always work for everyone. But it is axiomatic that you can’t settle your case without persuading the other side’s decision-makers. Craig Higgs (chiggs@higgslaw.com) is a mediator and a fellow of the International Academy of Mediators.
Remember that ex parte contact with the mediator is not prohibited. In fact I think that any mediator who does not take the time to contact you before the mediation is dropping the ball. Mediators, you are losing an excellent opportunity to sensitize yourself to the issues unique to the case. Is it a case of disputed causation or liability? Are there unique client issues? All this and more should be discussed with both attorneys premediation. My advice for attorneys: If the mediator does not contact you, you must contact the mediator and have this pre-mediation discussion. It will greatly enhance your likelihood for success.
Mediators, don’t forget: these lawyers know their case and their clients very well. So resist the urge to take over. Do not identify in the presence of the opposing party issues that the parties have not identified as “in dispute.” For the practitioner who sees the mediator getting offtrack, find an excuse for a break and have a private honest chat. Be respectful but direct about where you see the process not being productive.
Don’t forget the clients. While professional claims adjusters are typically involved in all discussions, private clients can often get left out of the process. As the mediator and attorneys are hammering out the legal concepts, these clients are left to stew with their emotions, which can ultimately derail everything. I always insist that the mediator have a meaningful dialogue with my client. And not just to tell war stories but to really listen to my client’s concerns and frustrations. Don’t rush the process. Often the mediator arrives at a decision of how the case should settle early on. The temptation is to cut to the chase and voice that opinion too early. To do so can totally put off one or both sides, which is not the desired result. I encourage mediators to hold off expressing their opinion, even when expressly asked by my client. As for mediator recommendations, I also believe that the traditional process must truly have played out with each side having given their bottom/ top position before a proposal is appropriate. I also encourage mediator proposals to have a same-day or short-fuse response time. Allowing too much time loses momentum and the likelihood for success. Debra Hurst (dhurst@hurst-hurst.com) is co-founding partner with Hurst & Hurst. September/October 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* Carothers DiSante & Freudenberger LLP 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 Erickson Law Firm APC Farmer Case & Fedor* Ferris & Britton, APC Finch, Thornton & Baird, LLP Fischer & Van Thiel, LLP Fleischer & Ravreby 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* Hahn Loeser & Parks, LLP Henderson, Caverly, Pum & Charney LLP Higgs Fletcher & Mack LLP* Hooper, Lundy & Bookman, PC 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 September/October 2016
Johnson, Greene & Roberts LLP Kirby & McGuinn APC Klinedinst PC Koeller, Nebeker, Carlson & Haluck, LLP Konoske Akiyama | Brust LLP Kriger Law Firm Law Offices of Beatrice L. Snider, APC Legal Aid Society of San Diego, Inc.* Lincoln Gustafson & Cercos LLP 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 Noonan Lance Boyer & Banach LLP 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 Selman Breitman, LLP Seltzer | Caplan | McMahon | Vitek ALC* Sheppard, Mullin, Richter & Hampton LLP* Shoecraft Burton, LLP Shustak Reynolds & Partners, PC 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 Witham Mahoney & Abbott, 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 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
San Diego Law Library Celebrates 125 Years of Service On June 21, 2016, the County Board of Supervisors honored the San Diego Law Library with a proclamation in recognition of its 125 years of public service. It is incredible to look back on the last 125 years and consider the changes in the legal field and the ways we conduct research. The San Diego Law Library has served the community throughout the years by adapting to the times, and committing to a mission of law made public. In 1891, the California Legislature mandated that every county in the state provide its people with a public law library. The San Diego Law Library was officially established by our Board of Supervisors with the passage of County Ordinance 57. Since then, the Law Library has continued to serve the legal community and citizens of San Diego County as the only freely accessible legal collection available to the public. As the legal field has changed and evolved over the years, so has the Law Library. In 1895, the Law Library began at the Courthouse in the judge’s chambers, with a modest 1,500 book collection. The Law Library now houses an estimated 125,000 print volumes at four locations, including the recently renovated five-floor downtown location. Today, the Law Library is much more than a collection of books. It is a community resource, providing access
Distinctions
to legal databases, study space, conference rooms, classes and legal clinics. In the past year, we answered over 30,000 questions and offered over 60 classes on a variety of topics ranging from Intellectual Property to Beach Law, in addition to trainings on using our legal research databases such as LexisAdvance and CEB OnLaw. This past August, dignitaries and California county law librarians from across the state gathered in Sacramento to acknowledge our past and celebrate our future as the premiere resource for lawyers, businesses and the public to pursue their claims, champion their rights and achieve their legal goals. The event was hosted by the Council of California County Law Librarians (CCCLL) and its president, San Diego Law Library Director John Adkins. Special guest California Senator Lois Wolk, representing the 3rd District of California, was honored for her work sponsoring SB 711, the law codifying the right of every county law library to profit from revenues gained from extraordinary services and programs. We look forward to serving San Diego County residents for the next 125 years! Article contributed by Law Library Staff.
Individuals and organizations in our community were recently honored for a variety of achievements. The following is a list of recent community recognitions:
Peter Fagan took the oath of office as San Diego Superior Court Commissioner.
Regina Petty, attorney with Fisher Phillips, was honored by the California Association of Black Lawyers (CABL) at the State Bar of California Annual Meeting. Sotera Anderson, senior counsel for Wilson Turner Kosmo LLP, was appointed to the California State Bar's Commission on Judicial Nominees Evaluation. Sotera was also named to the Pan Asian Lawyers of San Diego Board of Directors along with Procopio, Cory, Hargreaves & Savitch LLP attorney Soohyun "Stacy" Park.
Allen Matkins partner Jeff Chine was named 2016 Industry Professional of the Year by the Building Industry Association of San Diego County (BIA), and Allen Matkins senior counsel Tim Hutter was honored as BIA’s 2016 Associate of the Year.
Derek Paradis, attorney with Higgs Fletcher & Mack, was elected to the San Diego County Hotel-Motel Association’s Board of Directors. Michael Jones, also an attorney with Higgs, was named president of the Association for Corporate Growth's San Diego chapter.
Passings Justice Alex McDonald of the Court of Appeal passed away on September 8 at age 79. Justice McDonald served on the Court of Appeal, Fourth Appellate District, Division for 21 years.
To submit information regarding honors of a community or civic nature, or passings in the legal community, email bar@sdcba.org.
September/October 2016 SAN DIEGO LAWYER 45
PHOTO GALLERY LEGAL COMMUNITY OPEN HOUSE & LAW STUDENT WELCOME RECEPTION Photos by Jason de Alba On September 14, San Diego's legal professionals gathered at the Bar Center at 401 to learn about the SDCBA's Sections and Committees and other local legal organizations. Attendees also helped welcome law students to the community.
Guillermo Mercado, Manfred Muecke
Zane Dashty, J.P. Rankin
Duane Horning
Joy Utomi, Dennis Dawson
Shivani Kumbhojkar, Ayushi Agarwal
L-R: Abraham Barsegyan, Warsame Hassan, Gulan Tahir, Angelica Sciencio, John Rodriguez, Matthew Freeman
Loren Freestone
L-R: Monek Cullen, André Martin, Tyler Best, Christine Lopez
Pieter O'Leary
Kris Mukherji, Shireen Becker
Helen Cheng
Jacquelyne Crockett, Genesis Palma
Jonathan Chikamoto, Joseph Hallare
Michael Pulca
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Irvine Company........................................... 20 JAMS................................................................... 38 Judicate West ............................................... 22 Kathryn Karcher........................................... 16 Law Office of Steven C. Vosseller...... 10 Law Office of Stacie L. Patterson....... 36 LawPay.............................................................. 32
Lawyer Referral & Information Service.41 NoonanLance............................................................12 Panish Shea & Boyle LLP...................................47 Pokorny Mediations.............................................14 San Diego County Bar Foundation ........42 Todd Bulich Real Estate Company...........48 West Coast Resolution Group............. 29
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