Page 1

®® ® NOV/DEC 2018

SMALL TALK

The Trials and Tribulations of Succeeding as a Solo

Alara Chilton

Kimberly Swierenga

Eric Ganci

Deborah Wolfe

PLUS

Jeffrey Pratt

Julie Wolff

Tips for Solo Success and Lessons on Flying Solo The Journey from Law Clerk to Lawyer


501 West Broadway Suite A174


We are proud of our managing partner

David S. Casey, Jr. Recipient of the 2018 Witkin Award for Excellence in the Practice of Law by the San Diego Law Library Foundation. In addition, he was recently selected by the L.A. Daily Journal as one of the 2018 Top Plaintiff Lawyers and 2018 Top 100 Lawyers in California. As we celebrate our 72nd year of practice in San Diego, we are continually humbled by the accolades our attorneys receive, and proud that it represents the many successes we have achieved for our clients.

www.caseygerry.com Dedicated to the Pursuit of Justice since 1947 SERIOUS PERSONAL INJURY, MARITIME, AVIATION, PRODUCT LIABILITY, CLASS ACTION, MASS TORTS AND PHARMACEUTICAL LITIGATION

San Diego | North County | 619-238-1811


I founded AHERN Insurance Brokerage in 1997 with the goal of building long-term business relationships with both insureds and insurance companies. Over the past 20 years, AHERN has become an industry leader in providing customized insurance solutions for law firms. We welcome the opportunity to become your valued consultant and advocate.

– W. BRIAN AHERN President & CEO, AHERN Insurance Brokerage

AHERN, along with parent company, Acrisure LLC, insures over 7,500 law firms nationwide with firms ranging from 1 to 1,100 attorneys. Acrisure is currently one of the Top 15 insurance brokerages in the United States with revenues approaching $1 Billion.

(800) 282-9786 | AHERNINSURANCE.COM CA LIC 0K07568 | AZ LIC 1097042


CONTENTS

Page

Page

Page

25

33

38

40

small solo 25

34

Roundtable: Small Talk The Trials and Tribulations of Succeeding as a Solo. By Lyle Moran

12 Tips for Solo Success By James Crosby

31

Online Damage Control What to Do With a Negative Review. By Brian Keliher

37

Some Lessons on Flying Solo By Matthew Lab

38

33

Coming Full Circle By Rebecca Lack

Hiring Trends What Firms Need to Know. By Henry Angelino

Features Farewell My Friends Our Long Time Executive Director Says Goodbye. By Ellen Miller-Sharp

Blockchain Technology in the Legal Industry A Brief Breakdown of the Possibilities and Limits. By Julie Houth

23

Defined Moments Being Mindful of, and About, the Developmentally Disabled. By George Brewster Jr.

42

People v. Sanchez Revisited Expert Opinions and Hearsay. By Robert Ryan

Columns 7

Why I Belong Get to know SDCBA member Artemis Spyridonidis.

9

Deans Law Schools: Past, Present and Future. By Stephen Ferruolo

10

19

20

New Requirements for Attorneys Representing Clients in Mediation Effective Jan. 1, 2019 By Ana Sambold

14

Ethics Whoops! The New Rules, Law Firms and Cyberattacks. By Edward McIntyre

16

Technology The Threats Are All Around Us — Some Practical Solutions. By Bill Kammer

45

Year in Review By Kristin Rizzo

San Diego Volunteer Lawyer Program Our 2018 Justice for All Honorees. By SDVLP

13

47

Social Media Burning Questions: Is Social Media Fire? By Jeremy Evans

Distinctions

49

Photo Gallery

Issue no. 6. 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 © 2018 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.

November/December 2018 SAN DIEGO LAWYER 5


WHY I BELONG ARTEMIS SPYRIDONIDIS

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

Law Office of Artemis Spyridonidis

Co-Editors

Education: Bridgewater State University; Thomas Jefferson School of Law

Edward McIntyre Christine Pangan

Areas of practice: Estate Planning and Family Law

Editorial Board Elizabeth Blust George Brewster Jr. Jeremy Evans Mike Finstad Victoria Fuller Julie Houth

Michael Olinik Whitney Skala Renée Stackhouse Aleida Wahn Mike Wakshull Teresa Warren

SAN DIEGO COUNTY BAR ASSOCIATION

Director of Outreach Strategy & Chief Communications Officer Karen Korr

Graphic Designer/Webmaster Attiba Royster

Publications & Content Coordinator Sasha Feredoni

Proudest career moment: Anytime I am able to get through to a client when they’ve reached their nadir and give them hope and guidance so that they can overcome their obstacles. Family: We’re scattered between San Diego, Boston and Greece — it’s a great reason to travel! Birthplace: Massachusetts. Current area of residence: North Park. If I weren’t an attorney, I’d be a writer and a party planner. But, can’t I do all three? I love to cook and host big dinners. And, I just had my first story, "Clash of the Titans," published and it was nominated for a Pushcart Prize. The best thing about being an attorney is I feel like I have the key that unlocks what so many people perceive to be mysteries. As attorneys we’re able to access resources and understand the law in ways that others can’t. It’s a like a super power! Last vacation: Barcelona/Canary Islands/Athens/Yugoslavia/Kato Kline (my family’s village outside of Florina in Greece). Athens is vibrating with entrepreneurism and art. In contrast, the village is slow-paced and peaceful. It was a great mix. Favorite website: BBC News. Hobbies: Swimming, cooking and singing. Favorite book: I have many favorites! The latest one is The Alchemist. Best concert you’ve ever been to: I recently heard bass-baritone Ashraf Sewailam perform for a small group in my friend’s living room. Ashraf just played Bartolo in The Marriage of Figaro, with San Diego Opera. Being in so intimate a setting with such talent was amazing!

Follow the SDCBA and San Diego Lawyer! sandiegocountybar sandiegolawyermagazine @sdlmagazine @sdcountybar

Favorite food: Sushi. Most fun/memorable SDCBA moment or meeting: This may sound silly, but it was a phone call. When I reopened my firm after working for someone else, I called the SDCBA to restart my membership. I was so excited, and the person I spoke with was just as excited for me! We had a great conversation about practicing in San Diego. Do you have a unique skill or special talent nobody knows about? I’m an open water swimmer. I swim at La Jolla Cove. It’s a beautiful meditative experience and unlike any other workout. I’ve swum from Alcatraz to San Francisco, something I’d dreamed of doing since I was a kid.

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.

What one skill has helped you be successful as an attorney, and how could others develop that skill to better their practices? Compassion. It’s the backbone of any good, ethical practice. If you don’t have compassion for what your clients are going through, you can’t properly serve them. Do you have a mentor? Two — Gerry McFadden and Sebastian D’Amico. I clerked for both during law school and both have continued to be great resources and great friends. What would you most like to be known for? I’d like to be known as an expert advocate for my clients and a supportive colleague to my peers. What makes San Diego’s Bar so special/unique? San Diego’s Bar is supportive and friendly. That always impresses me!

FOR ADVERTISING INFORMATION, CONTACT LAURA TARABINI AT (760) 415-7030 OR LTARABINI@YAHOO.COM, OR VISIT WWW.SDCBA.ORG/ADVERTISING. November/December 2018 SAN DIEGO LAWYER 7


“I thought First Republic’s student loan refinancing was too good to be true, but it was right on.” P U YA H O S S E I N I , M . D.

Anesthesiologist and Athlete

(855) 886-4824 | firstrepublic.com | New York Stock Exchange symbol: FRC MEMBER FDIC AND EQUAL HOUSING LENDER


BY STEPHEN FERRUOLO

DEANS

D

Law Schools: Past, Present and Future Stephen Ferruolo

T

his August, as I began my eighth year as the Dean of USD School of Law, I found myself, even more than usual for someone who used to be a history professor, looking back and reflecting on the recent past of law schools and legal education. In recent weeks, there have also been several notable articles and commentaries about what is often referred to as the “crisis” in legal education (the period from 2010 to 2017, when law school applications and enrollment fell precipitously), comparing the coping (or survival) strategies adopted by law schools and how the decisions made in response to the “crisis” have impacted law students and changed the legal education landscape. These studies have given me even more cause for reflection, especially about how the state of legal education in San Diego has changed since I became dean of USD School of Law in 2011. In 2011, San Diego had three ABAaccredited law schools with large enrollments and solid finances. With an enrollment of about 1,000 JD students and a growing national profile, USD felt confident enough to make the unconventional and bold move of recruiting a practicing attorney (I was founder and managing partner of the San Diego office of a major national law firm) who had never been a law professor to the deanship with the view, as expressed by the then provost, that the law school could largely run itself internally and needed an external facing leader focused to build support in the business and legal community. Meanwhile, there were ongoing discussions of a possible merger between California Western School of Law (CWSL) and UCSD to form a UCSD law school, in part inspired by and in part impeded by the founding of the new law school, UC Irvine, in 20081. Most notably, in January 2011, Thomas Jefferson School of Law (TJSL) held its first classes in its new

eight-story high-tech building in the East Village, which was built with a capacity for 1, 200 law students, financed by a $130M bond offering and was regarded as one of the best new law school facilities in the country. How remarkably the situation has changed in the past eight years. At USD, I have focused a large part of my tenure on the challenging process of “right-sizing” the

"I think what has happened to San Diego's law schools in the past eight years does and should matter to the entire San Diego legal and business community." law school responding to the decline in applications seen from 2011 through 2016 and the continued challenges in the legal employment market. With the recent two years of improved applications, our enrollment has now stabilized at about 700 JD students. This is 30 percent below where we were in 2011, but I believe the right size for USD School of Law for the future. Across town, there now seems to be very little prospect of a UCSD law school, either by merger with CWSL or otherwise. The priorities of UCSD’s current administration lie elsewhere and it appears unlikely there would be much public support for establishing another law school in the UC system. Several articles covering the 10th

anniversary of UC Irvine law school this year, though laudatory about the high ranking Irvine has achieved, renewed the questions raised in 2008 about the wisdom of establishing the fifth UC law school in Orange County and its impact on other law schools in the UC system. Among the three San Diego law schools, however, it is TJSL that has been most dramatically affected by developments since 2011. As a result of declining enrollments and bar passage rates, TJSL has been on probation and at risk of losing its ABA accreditation since November 2017. Its 2018 entering class had reportedly fewer than 50 students, and TJSL vacated its East Village campus and moved to downtown office space this summer. Since then, while its former state-of-the-art facilities are being gutted, TJSL has lost its latest dean (after only a year of service), made the decision not to enroll any new students for spring semester 2019, and by a narrow 8 to 7 vote (with one abstention) of the State Bar has obtained California accreditation in the event it loses its ABA accreditation. Does this history matter other than to historians or law school deans like me? I think what has happened to San Diego’s law schools in the past eight years does and should matter to the entire San Diego legal and business community. These developments raise critical issues about how the future legal needs of our city and region will be met. It is now time to have a community-wide discussion of the future of legal education in San Diego. 1. The merger talks, which began in late 2009 and were formally suspended in April 2011, but many, including the chairman of CWSL, expressed confidence that the talks would resume. Stephen Ferruolo (sferruolo@sandiego.edu) is Dean of the University of San Diego School of Law.

November/December 2018 SAN DIEGO LAWYER 9


It has been my honor and my pleasure to serve as the San Diego County Bar Association President this year. 2018 was an amazing year filled with much achievement designed to make your membership experience meaningful and rewarding. Here are some of the highlights: • We defined a new Mission Statement for the Association: Inclusion and community define us. Innovation and leadership propel us. Your growth motivates us. Celebrating you and the profession is us. • We launched a new set of Core Values to serve as guiding principles for who we are and what we stand for: We are a community and serve as the home for San Diego’s legal professionals. This is the place to build long lasting, meaningful connections. We value inclusion — the SDCBA welcomes everyone, and everyone belongs. We are changemakers, leading the way and innovating to ensure that we are at the forefront of change. We foster and encourage growth, assisting attorneys in developing their relationships and their practices; and we recognize, honor and celebrate lawyers and their important role in our world. • Fostering technology and innovation, we hired a new Member Technology Officer, launched Tech Tuesday programming, and hosted our first annual Law + Tech Summit;

• Informing and educating the community on important civic and/or civil rights matters, we issued evaluations for candidates in contested judicial elections, we published a Voter Guide on how judges are elected and appointed with our judicial evaluations, we co-hosted the District Attorney Forum with the La Raza Lawyers Association, and we issued a public statement regarding the changes to transgender offender procedures; • Sharing the skills and talents of our members with the broader community and designed to give back to others especially those that serve us, we hosted two Wills for Heroes events and monthly practice-area specific Coffee with Counsel events. • For our members, we rolled out BarBucks as a pilot program, allowing new lawyer members to pay discounted pricing on Association programming and events. BarBucks will be available for purchase by all members in 2019. And finally, our members can now select to pay their Association dues in a way that best meets their budgeting preferences — on a monthly, quarterly or annual basis. Thank you for the hard work and dedication of the amazing 19-person Board of Directors for making so much of this possible: Judy Bae, Frank Barone, Stephanie Chow, Michael Finstad, David Fox, Hon. Loren Freestone, Srinivas Hanumadass, Patricia Hollenbeck, Garrison “Bud” Klueck, Linh Lam, Chris Lawson, Jan Maiden, David Majchrzak, Lilys McCoy, Teodora Purcell, Anna Romanskaya, Johanna Schiavoni and Renee Stackhouse. Every one of you served the SDCBA with your time and led the SDCBA with your talents. Thank you for giving me the honor of being


your President, for teaching me so much, and for your friendship. It’s my pleasure to pass the presidency to my friend Lilys McCoy, who will lead the 2019 Board with wisdom and expertise gained from many years in leadership. Thank you to the more than 500 volunteer members who serve in leadership roles at the SDCBA, including in our Sections, Committees, New Lawyer Forum, and Interest Groups. Your passionate service to the SDCBA’s goals and committed leadership to our members’ experience is what elevates the SDCBA to such greatness. Thank you for being such an integral part in setting our Bar higher. We are so fortunate to have a fantastic internal team, the more than 20 SDCBA employees who honor this association with their excellence. Thank you to the Directors for your work with the Board and leadership of your teams: Phil Schneider, Director of Finance and Operations; Karen Korr, Director of Outreach and Strategy; Heather Breen, Director of Governance & Member Engagement; Sarah Harris, Director of Educational Programs and Events; Andrew Cave, Director of Member Services; and Michele Chavez, Director of Public Service Programs. Thank you to the entire team in your respective departments, we are grateful for your work and dedication: Governance — Alejandra Gonzalez; Finance and Operations — Cynthia Davis, Julie Marquardt, Aldrin Ring; Member Services — Kayla HigginsAdriana Linares; Educational Programs & Events — Jazmin Garcia; Communications and Outreach — Sasha Feredoni, Attiba Royster;

LRIS/ Public Services - Rodrigo Garcia, Hector Jimenez, Elizabeth Sorensen, Holly Thomas, Megan Tomlin and Noemy Vera. This year, two of our executives moved on to other things, but their mark on the SDCBA will be felt for many years — thank you to Ellen Miller-Sharp and SJ Kalian for your work with the SDCBA. Thank you to my husband, Tom Becker, for supporting me through this presidential journey. Your love, friendship, and support as we move through this life together means everything. To my daughters, Lola and Fiona, being your mom is the best. To my mom, thank you for the love and support only a mom can give. To my entire family — I love you! To my village for keeping the trains running while I experience the gift of a professional lifetime — thank you. Finally, to all of you — our nearly 10,000 legal professional members — thank you for making the SDCBA the truly wonderful community that we are. On behalf of myself, the Board, and our Team, we wish you and yours a very happy holiday season!

[Insert Signature] Kristin Rizzo, 2018 SDCBA President


L AW Y E RS H E L P I N G OT H E RS

JULIE VOGELZANG HOPE, HEALING AND PREVENTIO N

Since 2002, Julie Vogelzang has volunteered hundreds of hours for Center for Community Solutions. Founded in 1969, CCS provides prevention and intervention services for domestic violence and sexual assault survivors. CCS programs include a crisis hotline, the only rape crisis center in San Diego, counseling, legal services, victim advocacy, and an emergency and long-term shelter. “I volunteered with a rape crisis hotline during college. I was stunned by the trauma that victims endure, but amazed by their strength and resiliency.” Years later, a fellow attorney told Julie about Center for Community Service. “I wanted to continue helping women escape abusive relationships or heal after sexual assault. CCS truly helps victims.” In recent years, Julie’s volunteer time for CCS has focused on pro bono legal services for the organization. To volunteer, donate, or learn more, visit www.ccssd.org. A partner at Schor Vogelzang, LLP, Julie is an employment and business law attorney focusing on wage and hour compliance and litigation. Julie Vogelzang is not affiliated with the Vosseller Law Firm.

After each case, we donate a portion of attorney’s fees to a nonprofit chosen by the client.

P L A I N T I F F P E R S O N A L I N J U RY

858-429-4062 www.vosslawyer.com

VOSSELLER LAW FIRM


BY JEREMY EVANS

SOCIAL MEDIA

S

BURNING QUESTIONS:

Is Social Media Fire? he brief answer is yes. Social media is “fire” and you should be using it. Social media use is a must for all firm sizes especially solo and small firm practitioners. In other words, as the great Will Ferrell once opined, “He’s so hot right now,” referring to model Hansel played by actor Owen Wilson in the 2001 comedy Zoolander. If paper is the way to court, social media is the digital highway to obtaining an audience, clientele and influence.

T

To break down the importance of using social media, we present five questions to guide you in how to utilize social media in your law practice. 1. Should I Use Social Media? Yes. Social media is the platform used to distribute information to nearly every generation. As Head of Digital Ventures at ICM Partners, Jonathan Perelman once said, “Content is king, but distribution is queen and she wears the pants. It’s not nearly enough to create a good piece of content. You have to understand how content spreads across the web.” Interestingly enough, Microsoft founder Bill Gates said something similar in the late 1980s. He realized the internet (and social media) would become the all-powerful informational tool. If you want clients, the public and others to see and hear what you have to say, i.e., the content, you need a distribution partner and that partner is social media. Of course radio and television appearances help and are additional distribution partners, but social media is free. 2. Which Platforms Should You Use? LinkedIn, Twitter, Facebook, Instagram and video platforms like YouTube and Vimeo are all great and should be used in some fashion. Each platform has its own benefits and uses, but the more platforms you use, the more your content will reach across the web and meet people and prospective clients, and educate. For example, some

folks love LinkedIn, but do not use Instagram or know what it is. Others use Snapchat, but content that disappears seems not to coincide with the rules on protecting consumers and keeping information current and available. In past articles, this author referred to LinkedIn as Facebook in a tuxedo. Twitter is an easy and pithy way to get info and content distributed. Instagram is picturebased and seems to have the best reach (i.e., algorithms). Start with what you are comfortable with, but be willing to challenge yourself. 3. What Should You Share? Notice how many more likes and followers you get when you post a picture versus written content. "A picture is worth a thousand words" rings true in social media. Remember as a child, picture books were easier and sometimes more fun to read than thousand-page word books. Similarly, your content needs to be exciting, invigorating, and tell people who you are without being salesy. Your content needs to be timely, easy and quick as eyeballs tend to stray. A well-spoken word, funny or wise comment can also attract some views, likes and engagement. Your content should engage. If distribution is queen, audience engagement is the toll booth to social media success. 4. When Should You Share? Think about when people check their social media the most: in the morning, at lunch, before leaving work and later in the evening before watching their favorite show. Between 7 – 9 a.m., noon – 1 p.m., 4 – 5 p.m., and 7 – 8 p.m. local time are good times to post content. Some of this goes to personal taste and availability. You should feel comfortable sharing and confident in the content before proceeding with a social media distribution partner. You should also have personal and business pages sharing sometimes similar and different content.

5. Who Should Care? Everyone. Your bottom line, any business development initiatives you might have, etc. Your friends, customers and colleagues. As well as the ethical/ model rules and the State Bar licensing authority. After all is said and done, what you share and how you share it matters, both in business and in ethics. You need to distinguish and know the differences between advertising and marketing. Advertising is about forcing your way through to people via paid or free content pushing your business directly. Marketing is about sharing information and educating, and is indirectly about sales. The point of marketing as a lawyer is to inform, and if a client results, so be it. It is about being top of mind and ready to answer the call. There is even advertising options available to push content on social media. Attorneys are in the service profession. People need to know what we do and how we do it. If they do not know, it is our loss and the prospective client’s. So, yes, in emoji talk, social media is fire and you should be using it all the time, but please share responsibly. Certain content does not need to be shared publicly. Certain content is better served on specific platforms and media. Part of this is feeling and again being comfortable, and keeping our business an honorable profession, but being willing to challenge yourself and your law practice as a business.

Jeremy Evans (jeremy@csllegal.com) is managing attorney with California Sports Lawyer.

November/December 2018 SAN DIEGO LAWYER 13


E ETHICS

BY EDWARD McINTYRE

Whoops! The New Rules, Law Firms and Cyberattacks acbeth, Duncan and Sara were enjoying a celebratory toast at the Red Coach & Horses when MacTavish, drink in hand, joined them.

M

“Have you guys seen the news about that major law firm. Had its computer network hacked? Massive embarrassment, for sure.” Duncan nodded. “I understand the FBI divides law firms into two kinds. Those that’ve been hacked — and those that will be.” MacTavish laughed and sipped his scotch.

“But what’s all that got to do with a computer hack?”

“All fine. But I was talking about a computer hack —”

“I assume we agree that, as lawyers, we possess a vast trove of sensitive and confidential client information. Financial data. Transaction and litigation strategies. Personal information. Perhaps health histories.”

Sara smiled as Macbeth nodded to a waiter for another round for the table.

“Sure. Necessary to the practice.” “Rule 1.6 and 6068(e)(1) require us to hold client confidential information inviolate. At almost any cost.”

Macbeth cautioned, “Not sure I find much mirth in their misfortune. Not only embarrassing. They have to confront a myriad of liability issues. And think of the ethics nightmare.”

“New number, huh. OK, understand that.”

MacTavish looked surprised. “Ethics? How so?”

“Well —”

“Have you looked at the new and revised Rules of Professional Conduct? The ones that just became effective on November 1?”

“Further, rule 1.1 requires competence, including — in this digital era — staying knowledgeable about the benefits and risks associated with technology.” Macbeth held up his hand. “Finally, rule 1.4 requires lawyers keep clients reasonably informed about significant developments related to the representation.”

“We were indeed. Let’s start with rules 5.1 and 5.3 — even before any computer breach occurs.” “If you want.” “Given the prevalence of cyberattacks, likely firm managers and supervisors have an ethical obligation to ensure the firm has adequate cyber protection already in place —current and updated — to prevent the loss of any client information that rule 1.6 requires the firm’s lawyers keep confidential.” “Good thing I’m a sole practitioner —” “A manager of your own firm, in other words.” “Ouch.”

“Not yet. On my to-do list. But —” “When you get around to it, take a hard look, for example, at rule 5.1. It’s new in California. We’ve never had anything like it before.” “What’s it about?” “It imposes on lawyers with law firm management authority the obligation to ensure that the firm has in effect measures that give reasonable assurance that all the firm’s lawyers comply with the rules. And with State Bar Act.” “Seems like a bit of an overreach, but —” “It also requires lawyers with supervisor authority over another lawyer to make sure that lawyer does the same. Rule 5.3 applies the same obligations to the supervision of non-lawyer personnel, whether employees or not.” 14 SAN DIEGO LAWYER NovemberDecember 2018

CARTOON BY GEORGE BREWSTER JR.


“In fact, the ABA has said — interpreting Model Rule 1.6 — that our confidentiality duty requires lawyers to take reasonable efforts to prevent unauthorized disclosure or unauthorized access to information relating to client representation.” Sara spoke, “ABA opinions may become more authoritative guidance in California now that the new rules in many instances track more closely the Model Rules.” Macbeth nodded. “Good point. But back to MacTavish’s cyber breach. Let’s assume a cyberattack occurs. Rules 1.1 — competence — and 5.1 and 5.3 would also impose a duty to have mechanisms in place to monitor if a data breach was occurring. Or had occurred. And stop it or repair it.” Sara nodded. MacTavish just stared. Macbeth continued. “Finally, Rule 1.4 would require a lawyer promptly to notify all the affected clients about any data breach — independently of any obligation that other laws might impose to give notice.” “Is the State Bar really going to come after me because I don’t have some high-tech cybersecurity setup?”

“It may not. But remember. The Rules of Professional Conduct help define our duty to a client for purposes of a breach of fiduciary claim.”

“You’ll see. It can be a bit foreign. But so was the law when we started. And we managed to work our way through it.”

MacTavish’s eyes widened. “But give me a break, Macbeth. I’m a sole practitioner. I’m not a cyber guy. I can barely use the internet or my computer. What am I gonna do with these new obligations?”

The waiter approached with a full tray.

“I understand the problem, MacTavish. We’re a small firm, too. We’re lawyers, not cybersleuths. Fortunately, the rules give an answer.” “Help me with it.” Rule 1.1 states, in effect, that if a lawyer doesn’t have sufficient learning or skill, the lawyer can still provide competent representation — by associating or professionally consulting another lawyer who is competent.” “So —” “There are lawyers in this community who, fortunately, are cybersmart. Consult one of them. Get help protecting your clients’ data. Develop and maintain a cyber disaster recovery plan.” “A what?”

Sara looked away and smiled.

Editor’s Note: The reference to 6068(e)(1) is to Business and Professions Code section 6068, subdivision (e)(1); the ABA opinion is ABA Formal Opinion 477 (May 11, 2017). In BGJ Assoc. v. Wilson (2004) 113 Cal.App.4th 1217, 1227 the court reiterated that the Rules of Professional Conduct help define the duty component of the fiduciary duty a lawyer owes a client. See also Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086-1087; Mirabito v. Liccardo (1992) 4 Cal. App.4th 41, 45. Edward McIntyre (edmcintyre@ethicsguru.law) is a professional responsibility lawyer 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.


T TECHNOLOGY

BY BILL KAMMER

THE THREATS ARE ALL AROUND US — SOME PRACTICAL SUGGESTIONS

R

obert Mueller said it best: “I am convinced that there are only two types of companies: those that have been hacked and those that will be.” Lawyers and law firms are prime targets. We face a statutory obligation to maintain inviolate our clients’ confidences and secrets. We should afford the same protections to our personal and financial information. As a practical matter, there are steps every lawyer or law firm should take. Some analysts argue that you cannot defend, you cannot prevent; you can only detect and respond. But that doesn’t forgive a failure to take basic precautions. 1. Phishing and Malware The primary threats to law offices generally arrive by email. Everyone is busy and often overwhelmed by the volume of incoming email. Attorneys and staff operate in a “just in time” environment and are susceptible daily to emails requesting review of an attached document or payment of an attached invoice. Eager to please, we click on an attachment or link to take care of the matter immediately. We should all have installed firewalls, but even those are not a perfect defense. Some phishing or malware threats will still avoid the protective net. The best defense will always be a well-trained staff, and that

16 SAN DIEGO LAWYER NovemberDecember 2018

takes a security program, complete with practice and repeated reminders. There are always paid consultants, but there is also a wealth of information online. As an example, look at the information available at security-consultant KnowBe4 (www.knowbe4.com). Its materials include a free simulated phishing attack and an informative phishing graphic at https://blog.knowbe4.com/q1-2018-topclicked-phishing-email-subjects. 2. Password Vigilance Every password or passphrase that allows access to your office data must be robust and well-designed. This is a constant theme of all security analysts. The quality of passwords used on hacked sites has not improved significantly. For pathetic examples of current credentials, visit https://securityscorecard.com/ blog/worlds-worst-passwords. Effective passwords or passphrases must be sufficiently long and creatively structured. Two-factor authentication should be a part of all allowed remote access. Nothing less should be tolerated. 3. Firewalls Firewalls are devices designed to prevent unauthorized access to computers and networks. There are two kinds: hostbased and network-based. The hostbased firewall runs on your computer and

protects that computer. Most operating systems such as Windows and macOS come with built-in firewalls that can be implemented. Network-based firewalls run at the organizational level and require a little more expertise. However, we should use both types to provide as much defense as possible. 4. Disaster Recovery Plans An ABA study in 2017 found that twothirds of the 200 law firms surveyed had experienced a breach. We have all seen reports of major corporations and websites hacked or breached. Similarly large national law firms have suffered substantial or embarrassing damage. The truism remains: it’s not whether we will be hacked, only when. We must have not only a cybersecurity plan but also a disaster recovery plan. There will be a breach, and we should be prepared to react promptly to minimize financial loss, protect the confidentiality of client information, and protect the personal information of employees, clients and other persons. The FTC recently launched a Cybersecurity for Small Business campaign. It maintains a website that includes cybersecurity basics, best practices, and descriptions and discussions of common cybersecurity threats. https://www.ftc.gov/tips-advice/ business-center/small-businesses/


TECHNOLOGY cybersecurity. California’s Attorney General also maintains a website with substantial materials addressing the reporting required after a data breach. https://oag.ca.gov/privacy/databreach/ reporting 5. Cyber Liability Insurance A lawyer’s professional policy will not cover many effects of a cyber breach. For that reason, the insurance industry has introduced new products that cover cyber liabilities. Designed well, they smoothly integrate with a lawyer’s other insurances to provide maximum coverage for most incidents and losses. When shopping, understand coverages. Some insurers are unwilling to insure against stupidity or ignorance. But they are willing to help. Leading insurers also provide pre-loss training and access to manuals, narratives and training exercises. For examples, look at http://www.aon.com/attachments/riskservices/19-Cyber-Liability-Insurance-forLaw-Firms.pdf or https://safelawsolutions. com.

The Minnesota State Bar has published an excellent source of information on cyber insurance that is available online at https://www.ftc.gov/tips-advice/ business-center/small-businesses/ cybersecurity. The ABA survey mentioned earlier found that 77 percent of the 200 law firms did not have cyber policies. That situation must change for the better. Lawyers shouldn’t be willing to selfinsure cyber risks, much less confront the realities of reputation damage.

T

Look for new BarBytes every Tuesday on SDCBA's Twitter @sdcountybar Need to quickly change case from ALL CAPS to sentence case or other? Look for the “Change Case” button on the ribbon or use keyboard shortcuts after selecting text. In Word and Outlook for Windows, tap SHIFT+F3 until the case you want is applied (if you have a laptop you may also need to hold the FN key). In Word for Mac, press fn+SHIFT+F3 until the style you want is applied.

The threats are constant, the breaches may be inevitable, but viable defenses remain — training, planning, faithful execution and minimization of financial loss. We owe it to our clients, our families, and ourselves to do what we can.

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

Look no further than your nearest smart device for the fastest way to calculate a date, figure a statute of limitations or get a countdown. Hey Google! Siri! Alexa! “What is 45 days before February 19, 2019? How many days until Mardi Gras?"

“The ability to quickly analyze complex issues and efficiently get from A to B sets us apart.” – Jim Lance

Award-winning representation by some of San Diego’s most experienced trial attorneys is the cornerstone of NoonanLance. Working with clients throughout San Diego County and beyond, the firm strives to serve its clients with efficiency and a focused eye on results. To learn more, visit noonanlance.com or call 619-780-0880.


Annual

Thank you to our sponsors for their generosity!

An Evening In La Jolla

TITLE SPONSOR

WELCOME SPONSOR

BAND SPONSORS

CHAMPAGNE SPONSOR

BAJA MEX HORS D’OEUVRES SPONSOR

Robert and Susan Vaage CHARCUTERIE STATION SPONSOR

COFFEE STATION SPONSOR

FLORAL SPONSOR

HOSTED BAR SPONSORS

HORS D’OEUVRES SPONSORS

SUSHI SPONSOR

LANYARD SPONSOR

VALET SPONSOR

DESSERT SPONSOR

PASSED APPETIZERS SPONSOR

SILVER SPONSORS

EVENT SPONSORS Andrea & Charlie Zigelman Andrew Schouten & Megan Moore Brinig Taylor Zimmer, Inc. Buchalter California Western School of Law CPT Group, Class Action Administrators Dave Kempton & Drew Woodmansee David C. Carr D’Egidio Licari Townsend & Shah, APC Fragomen, Del Rey, Bernsen & Loewy, LLP General Dynamics NASSCO Griffith, Young, & Lass, APC Higgs Fletcher & Mack, LLP James & Angel Gilpin Jason Whooper

Joe & Colleen Ergastolo Joy Chang Kramm Court Reporting Lincoln Gustafson & Cercos, LLP Micaela & Tim Banach Monica Sherman-Ghiglia Paul, Plevin, Sullivan & Connaughton, LLP Sandler, Lasry, Laube, Byer & Valdez, LLP Stephen LaSala StoryCloud Todd Stevens Tracee Lorens Judge Victor Bianchini

Allen Snyder and Lynne Lasry

401 West A Street, Suite 1100 • San Diego, CA 92101 • www.sdcbf.org


Farewell My Friends October 31, 2018 Dear Members and Friends,

Ellen Miller-Sharp

As I begin my last week at the SDCBA, I am flooded with memories and great pride. There have been so many changes to the organization in the past 11 years. Some have been obvious to members, like the move to the new Bar Center at 401, the creation of the Bar’s first lobbying and advocacy effort through our Court Funding Action Committee (CFAC), a new innovative mission statement for the SDCBA, a new website inclusive of e-communities for virtual connection around the county, a Diversity Fellowship Program providing a great opportunity for 1L law students and employers alike, live streaming of programming bringing education beyond the walls of the Bar Center or the first ever bar association mobile app which brought our enormous attorney directory to the palm of your hands. But I also take pride in the many changes that have taken place behind-the-scenes, like structural changes for section and committee leadership, implemented to enhance collaboration and leadership development and help integrate newer lawyers; changes to policy on how we approach addressing major issues impacting our community through public statements; our foray into new social media platforms to foster organic member engagement; and a cultural shift with how the internal team relates to members. This list is by no means all-inclusive — I could go on and on, but needless to say, we have all accomplished so much and truly “set the bar higher” together. To the Board of Directors and Section and Committee Leaders from 2008 through 2018: Thank you for stepping up to serve and lead. We couldn’t do any of this without you and you have been a fantastic group to work with over the years. You have been open, creative and brave. I have learned a great deal from all of you. To our members: Thank you for supporting the SDCBA and making it a part of your practice and your success. I have appreciated the opportunity to meet so many of you, learn about your practices, engage in fascinating discussions on various areas of law, and watch you prosper. To my senior team Heather Breen, Andrew Cave, Michelle Chavez, Sarah Harris, Karen Korr, Phil Schneider and SJ Kalian (who retired in April): Thank you for how you show up each day, giving your best, always trying to improve what we do and make it fresh. It wasn’t always easy, but you were up for the challenge and I will always be grateful. As you can see, the last 11 years have been busy. It is now time for me to start a new chapter and continue to do what I am passionate about: helping professional organizations develop, progress and thrive. On November 1, I will join California Lawyers Association, our new state voluntary Bar Association (which is already the second largest bar association in the country). In my new role, I will head up their statewide Office of Bar Relations/Collaborations and Special Projects that will include Diversity, Access to Justice and Civic Education, and other leadership development, so my new role will offer opportunities to engage and collaborate with the SDCBA without a doubt. Executive Directors hope to leave their organizations better than we found them, and I hope I have done that. Thank you for allowing me to serve. It has truly been a pleasure and an honor. With warm wishes and the hope that our paths will cross again,

Ellen Miller-Sharp ellen.miller@calawyers.org

November/December 2018 SAN DIEGO LAWYER 19


BLOCKCHAIN TECHNOLOGY IN THE LEGAL INDUSTRY A Brief Breakdown of the Possibilities and Limits By Julie Houth

M

ost people have heard of cryptocurrencies like Bitcoin and Ethereum, but many may not have heard of the underlying technology behind these cryptocurrencies—the blockchain. Blockchain technology is the use of a decentralized, publicly distributed ledger that is replicated and hosted on various computers that create many digital carbon copies. These ledgers are permanent and have the ability to store massive amounts of data. Blockchain technology offers businesses, including law firms, a higher level of precision by providing independent verification of data without a controlling central party like banks. Blockchain technology can provide a secure and transparent way to conduct transactions. This article is intended to provide a brief breakdown of the blockchain and what could change in the legal industry if blockchain technology is implemented. Use of the Blockchain Most current dealings use an intermediary like an agent, a mediator or a bank to complete a transaction. The use of a third party is needed in order to provide confirmation of the existence of the transaction among other things. The implementation of blockchain technology in transactions would provide verification of the event in a secure and efficient manner. These transactions could be for an exchange of value like money, goods, property or data. The transparency of the blockchain would allow attorneys to keep records and authenticate different types of legal matters that are considered ledger-based activities including, but not limited to, contracts, property records, court records and fund transfers. Smart Contracts There are many blockchain technologies, but the Ethereum blockchain is probably best known to the public because it introduced the feature of the “smart contract,� which allows coded programs to act based on preprogrammed triggers. For example, a promised completion of a service, like a delivery of a good, could automatically

trigger a payment or other exchange based on the terms of the contract. Traditional steps of contract dealing could be eliminated because the blockchain would reduce time spent on routine tasks allowing attorneys to divert more time on other things like client retention. The smart contract could revolutionize how attorneys enter and execute contract dealings. Public Property and Land Records Because a public blockchain ledger can retain reliable records of property titles, deeds and changes in ownership, the time attorneys and their staff spend on title searches would likely be reduced. Similar to the smart contract, a substantial amount of time and money could be saved and spent elsewhere. Dispute Resolution For those who opt for a traditional mode of Alternative Dispute Resolution like mediation or arbitration, the blockchain could provide a secure and transparent method for memorializing negotiations, terms of a resolution, and the identities and agreements of each party involved. Every term of the agreement would be accessible and traceable. This technology could provide a secure way to resolve disputes immediately and it could also prevent disputes from taking place because it would hold each party accountable for their end of the bargain. Types of Tools for Lawyers With the Blockchain Blockchain technology is currently being used to help attorneys draft contracts, record commercial transactions and verify legal documents. Both OpenLaw and Integra Ledger provide lawyers with these tools. Attorneys can generate legal agreements automatically and embed smart contracts that can be executed on the blockchain with OpenLaw. Integra Ledger allows a permissioned blockchain to increase the reliability of legal documents. Blockchain can be the backbone to lawyers and streamline their practice while likely decreasing the cost of legal services and business financial overhead.


Limitations of the Blockchain Although the potential of blockchain technology seems limitless, it also requires a standardized process. The use of blockchain technology in the legal industry is still very new. There is no standard application of the blockchain in the legal industry, but the blockchain is already a powerful tool that will continue to develop, evolve and ultimately expand in all industries. Future of the Blockchain Blockchain applications in the legal profession will enhance accuracy and accountability. Standardization of parts of the legal industry could potentially reduce fraudulent claims and dealings. This technology will have an impact on how lawyers conduct business and legal work. Many well-known companies like IBM, Nestle and Bank of America are exploring some platforms of the blockchain. IBM, the American computer giant, is a huge player in the information technology industry. It is a driving force behind multiple blockchain initiatives. Nestle, the Swiss

"...the blockchain could provide a secure and transparent method for memorializing negotiations, terms of a resolution, and the identities and agreements of each party involved."

food company, is working with IBM to remove unnecessary middlemen from the way goods are shipped. Bank of America, one of the world’s leading financial institutions, is working to automate the process of creating letters of credit using the Ethereum blockchain. Companies in various industries are exploring the blockchain to better streamline their businesses. Implementation of the blockchain in different industries will likely force individuals to adapt to the change

brought by the blockchain. Because companies are researching and adapting different blockchain technologies, it would be advantageous to any lawyer to become familiar with the blockchain. Julie Houth (jhouth@gmail.com) is a staff attorney at Robbins Geller Rudman & Dowd LLP.

To achieve this goal, we have assembled a core group of experienced neutrals, including the following individuals

DOUGLAS BARKER SHAUN BOSS JUDY COPELAND JOHN EDWARDS RALPH HUGHES CHRIS HULBURT RICHARD HUVER TIMOTHY RILEY GINA STEIN

To schedule a case with one of our neutrals, please contact Case Manager, Kathy Purcell at 619-238-7282 or visit us online at:

westcoastresolution.com

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.


Giving With a Sense of Purpose How the San Diego County Bar Foundation Ensures Legal Services Reach Those in Need.

You give hard earned money to established charities you believe in, but do you know how it’s really being used? Americans are a generous bunch. When issues or disasters grab their heartstrings, they donate money - a lot of money in fact. According to Giving USA, American individuals, foundations and corporations gave more than $390 billion to U.S. charities in 2016. Unfortunately, not all of that money is well spent or reaches its intended destination. It takes a lot of time and resources to research, vet, interview, track and hold nonprofits accountable for donations. Fortunately, the San Diego County Bar Foundation – whose more than $3 million in donations has benefitted more than 50 local legal aid and public interest organizations – does just that. As the charitable arm of the San Diego County Bar Association, the Bar Foundation helps provide access to justice, investing in sustainable programs and advocacy for San Diegans who are hard hit by poverty, abuse and discrimination. Its mission is to raise money for people and organizations who cannot afford access to lawyers and legal assistance. Identifying organizations that support these values and goals, the Bar Foundation directs donations to nonprofits that provide legal services and promote understanding of the legal system to those in need – including refugees, abused women and children, immigrants seeking political asylum, domestic violence victims, the disabled, children, veterans, the homeless, low income seniors and at-risk youth.

Every year, the Bar Foundation’s Grants Review Committee works to carefully vet dozens of legal and public service nonprofits who have applied for aid. Working as a team, their process includes reading all applications submitted by each organization to determine which applicants qualify and how the nonprofit’s request meets the Foundation’s mission and grantmaking guidelines. In order to qualify to receive funds, the Foundation’s grantmaking guidelines state that organizations must promote public understanding of the law, improve the administration of justice and the San Diego court system, and/or facilitate and expand the availability of legal services to the community. Based on these guidelines, the organizations are prioritized. Committee members then conduct site visits for qualified applicants to discuss their funding proposals. During these visits, team members meet key staff; tour facilities; ask questions about processes, budget, and results; and review case studies. Past Foundation funding is also reviewed – as well as other funding streams – and the needs of the organizations are carefully determined. The committee also takes into consideration diverse populations’ needs in multiple geographic areas as well as the financial and organizational stability of the nonprofit. This detailed process culminates in a

committee roundtable – each team reports on their site visit, summarizes the application and provides a recommendation to the committee. The biggest challenge is determining which organizations receive funds that year and for what amount. This is not an easy decision, as there are many deserving nonprofits with compelling projects in dire need of funding. Once donations are awarded for the year, the Bar Foundation keeps in close touch with each organization. At the end of that year, they are all required to report results to demonstrate how all the donation dollars have been spent. Money given to the San Diego County Bar Foundation supports multiple organizations, ultimately impacting thousands of San Diegans in need of legal assistance. Donors can rest assured that the Foundation takes every measure and precaution to ensure this money is spent efficiently and effectively. To learn more or donate, visit www.sdcbf.org.


Defined Moments

Being Mindful of, and About, the Developmentally Disabled By George Brewster Jr. This is a short take on a long story. Let’s begin on a beautiful spring weekend at Point Loma Nazarene University. The stadium field is filled with pop-up tents, and the air with anticipation. The track and field athletes are talking, walking, some are laughing wildly, and others are playing with their assigned numbers pinned to their jerseys. They are competing in the Special Olympics. The beauty of this event is the unfolding observation that these adults, with all of what life has thrown at them, are in the moment. The joy of just being there — no disgruntlement over who placed first or second or third, no pity party. And every time I go to this event, I think the same thing: Wouldn’t it be great to be able to live in the moment, to be joyous just for the sake of having the experience? Those are wonderful moments for parents of the developmentally disabled. But I can tell you, there are many other moments that are, in a word, dark. My oldest child, Pamela, was born 34 years ago with the umbilical cord wrapped around her neck, causing birth asphyxia resulting in developmental delays and a seizure disorder. The seizures have, thankfully, tapered over time, but the brain injury has caused significant short-term memory issues and cloudy reasoning skills. Working with Pam, and fighting so many fights on her behalf, has given me some insight into the world of the developmentally disabled. A world that for most of the “regular” population remains hidden, or worse, ignored. In a nutshell, here is what I have learned:

1. In California, “Developmental Disability” is defined as a disability that is attributable to mental retardation, cerebral palsy, epilepsy, autism or disabling conditions found to be closely related to mental retardation. But good luck with obtaining Social Security benefits. My daughter was denied SSI and SSDI (the main federal benefits available to those with developmental disabilities), and I had to appeal that decision. It took a while, but I had legal training, a great deal of patience and generally knew what I was doing. The heroes here are the lawyers who routinely handle these cases on behalf of the disabled, and do not get rich doing so. There are many people on the streets today who suffer from mental disorders, through no fault of their own. They need advocates. And it doesn’t help to have leaders of the free world mocking the disabled. 2. In this state, there are 21 “Regional Centers” — these centers provide and coordinate supportive services for 250,000 developmentally disabled Californians. The San Diego Regional Center will celebrate its 50th year in 2020 and is the second largest of the centers in this state. The happiest day for me was when Pam was accepted as a client of the SDRC, which is a lifetime service. Since Pam is able to live independently (with help and guidance), she is provided independent living services to assist with everyday living issues (groceries, budgeting, bill paying, apartment maintenance). The Foundation for Developmental Disabilities (a nonprofit fundraising entity), the SDRC and the Southern California Housing Collaborative all seek better lives for our DD citizens, and that includes a chance to live independently in affordable housing.

3. Jobs are hard to come by for the DD. My daughter wants to work — she puts in application after application to grocery stores, fast food restaurants, movie theaters, department stores. But she cannot work a cash register, so it is tough. Thankfully she now lives in affordable housing with Section 8 financial support (both were 10-year wait lists), so she can get by on Social Security. Some utility companies, such as AT&T, offer discounted services. Cable companies do not, which is a shame because television plays such a large role for the DD individuals I know — safe and comfortable entertainment, but not cheap. 4. If you are a parent of a disabled child, you HAVE to plan for the future — and by that, to be blunt, I mean your death. I know many parents who shelter their adult child, without any specific plans as to who will care for that adult when they cannot. The answer is not warehousing people — I hope as a society we are past that (although lately I wonder). These are people our society should support and protect, and we have to do a better job of that. As I said, just a short take on a long story. But it is important to remember these folks who, through no fault of their own, struggle each day to maintain a life of joy, purpose and meaning. PS: If you looked at the photo with this essay and thought "she doesn't look developmentally disabled," consider whether that is an example of profiling or bias. George Brewster Jr. (sandbrews@aol.com) is a retired attorney after 35 years in practice, including JAG, private practice and the last 30 with the County of San Diego, Office of County Counsel. November/December 2018 SAN DIEGO LAWYER 23


LAWPAY IS FIVE STAR! LawPay is easy, accurate, and so efficient - it has increased our cash flow tremendously. The recurring pay option for clients is the best! Can’t beat the rates and the website is easy to use! We love LawPay–it has really enhanced our firm! –Welts, White & Fontaine, P.C., Nashua, NH

Trusted by more than 35,000 firms and verified ‘5-Star’ rating on

Invoice Payment Payment Detail Welts, White & Fontaine, P.C. 29 Factory Street Nashua, New Hampshire 03060

Amount $ 500.00 Reference Case 1234

Thank you for your prompt payment.

Card Information Name on Card Roy Smith Card Number

THE #1 PAYMENT SOLUTION FOR LAW FIRMS

5555 5555 5555 5555

CVV 111

PAY ATTORNEY

Getting paid should be the easiest part of your job, and with LawPay, it is! However you run your firm, LawPay's flexible, easy-to-use system can work for you. Designed specifically for the legal industry, your earned/unearned fees are properly separated and your IOLTA is always protected

LawPay is proud to be a vetted and approved Member Benefit of the San Diego County Bar Association.

against third-party debiting. Give your firm, and your clients, the benefit of easy online payments with LawPay.

877-593-7883 or visit lawpay.com/sdcba LawPay is a registered ISO of Citizens Bank, N.A.

Special offer for bar members. Call for details


L-R: Deborah Wolfe, Eric Ganci

small talk The Trials and Tribulations of Succeeding as a Solo

Jeffrey Pratt

Julie Wolff

w

orking as a solo practitioner presents plenty of challenges, but many local lawyers have found success and satisfaction hanging out their own shingle. In fact, more than 60 percent of the San Diego County Bar Association’s members are solo or small firm attorneys. San Diego Lawyer recently brought together six local solos from a wide range of practice areas to discuss how to thrive professionally while being your own boss. They offered plenty of practical tips to those who have recently gone out on their own, or who are thinking of making the plunge. Adriana Linares, SDCBA’s Member Technology Officer, moderated the freeflowing conversation covering a broad mix of topics. The discussion was also recorded for an episode of “New Solo,” the podcast Linares hosts for Legal Talk Network (www.legaltalknetwork.com).

The Importance of Mentors Kimberly Swierenga: It'd be foolhardy not to have multiple mentors. I can't think of a single person that's turned me down when I asked for mentorship, and it might very well just be somebody willing to give back. It might be that they were in court in front of the judge that you will next be in front of, and so they're willing to guide you that way. So I think part of it is knowing how mentors can help, and that doesn't necessarily mean a gray hair teaching a young buck what the lay of the land is. I teach a 76-year-old mentor technology. And it goes both ways. So absolutely get mentors, and then keep that communication line open. Deborah Wolfe: When you go out on your own, it's really frightening. You have to have mentors. Thank God for Harvey Levine. He was one of my professors in law school at USD, and he would always take my call. I had a lot of other people that I met through joining the Bar Association, the consumer attorneys, Lawyers Club and networking.

Recorded on Legal Talk Network Podcast "New Solo" Episode (legaltalknetwork.com) Edited by Lyle Moran Jeffrey Pratt: Doctors go through medical school. They go through residency. They go through a set professional training period that we don't get as lawyers. I personally think it is extremely difficult, if not impossible, to step out and become a solo practitioner after law school, or with a short amount of experience. The mentorship very much helps, and I've had several [mentees] over the last few years. I've enjoyed working with them, and I’ve enjoyed imparting the knowledge that I can. My preference is work for somebody else for a while before you become a solo. Tips for Generating Business Early On Deborah: It was called at the time “shoe leather.” I would go meet people. I would knock on doors and say, "Hey, I'm available to do some work. Can I help you with anything?" I had this little game that I played. I put like 10 of my business cards in my pocket every day. I tried to go to lunch at a different place every day, and I would just strike up a conversation with November/December 2018 SAN DIEGO LAWYER 25


Eric Ganci

Alara Chilton

somebody. I'd always work in, "Hey, I just started practicing law. I'm available if you know anybody that needs a lawyer." So, my goal was to pass out all of my cards every day, and eventually I started getting calls. Meeting people is the best way to get business. Alara Chilton: I wanted to talk to a point Deborah raised, which is when you first started out, you said that you would charge people less. I find this is a common thing with women. Men don't have this problem, generally speaking. Once I bought into the notion, "Hey, I'm worth this much," then other people bought into that notion as well. And by no means am I the most

expensive game in town. In the consumer cases, I’m literally free, to the client that is.

Kimberly: There is so much financial abuse. Join us please.

But on those cases where I need to charge, I got to believe that I’m worth it. And knock on wood, it's proved very effective.

Julie Wolff: When I went solo, I decided to take the child welfare law specialist exam. People were like, why are you doing that? But I think it was a good step just to show that you are specializing in something, that you have a little extra. Here in San Diego, there are a lot of great family law attorneys that have their CFLS [Certified Family Law Specialist]. I haven't taken that exam yet. I'm still too scared, I guess. But I still tell the judges, "Look, I’m child welfare law certified," and I put it on all my things. I think a couple of the judges do recognize something in that child welfare knowledge.

Eric Ganci: Unless you are getting out of law school with like a ton of cash, which I definitely didn't have when I started my firm right out of law school, then you need to go market yourself. Like Deborah said, I had business cards that just said “DUI lawyer” on it. I would talk to [other lawyers] about the science stuff that I was doing. There weren’t a lot of people that were doing that kind of stuff, and then you just become like the DUI person. Some Benefits of Specializing

Kimberly Swierenga

26 SAN DIEGO LAWYER NovemberDecember 2018

Eric: I will tell you that the DUI realm is such a deep dark hole to get into. I wouldn't be able to do other types of laws right now. I’ve been doing it for 10 years, and I'm glad that I spent that 10 years. So the specialization thing has really worked for me, but it's also about looking down the road to see where things are going to go in the future. For my business model, people in general are better about not drinking and driving, or not using drugs and driving. Plus, there are driverless cars, Uber and all that kind of stuff. You've got to be a good lawyer, but you’ve got to think about the business model too. And with DUIs, I estimate it will be five to 10 years before, as a business model, it's just not going to be around.

Guidance on Crafting Fee Agreements Julie: The California Bar has amazing templates. The only part that I have significantly embellished from the fee agreements on the Bar [website] is duties that the client has to you. Mine really specify do not lie to me. If something goes wrong and there's something negative you need to tell me, you cannot withhold information. That's a way to get out of a case if they don't tell me important information. I learned that one the hard way. Deborah: One reason you can terminate the [attorney-client] relationship is if they don't pay you. That's really, really important to have as part of your fee agreement. That is on the State Bar website. Also, if you're in a particular area of the law, call up some other practitioners and see if they'll share


their agreement with you. I share my fee agreements with people. Kimberly: With my clients, right at the intake I tell them the good, the bad, the ugly. I tell them what I expect from them and what they can expect from me. And I put that in my fee agreement. Here's what you promised to do. Here is what my scope of representation is. Here's what I will be doing for you. If ever we have problems between the two of us or the group of us, it says right in the fee agreement, "I'm allowed to back out if these things happen." Alara: I want to speak to that quickly. The new [ethics] rules that went into effect [Nov. 1] also require that we now look at the client’s objectives. So that is an important piece of that conversation now. It used to be that some people would defer to the attorney. Not so fast anymore. You've got to ask your client, "What are you achieving here? What are your goals?" Then work your plan around that. Choosing Office Space Julie: I started downtown, and I think it was kind of cool at first because there’s a lot of people here. You meet a lot of other attorneys. But once I got a bookkeeper, he looked at my parking expenses, which were just as expensive as my office. And then occasionally I would have clients that would be like, "I'm driving around the block. The only lot I have is $20." For my clients, $20 is a lot of money. So about maybe a year ago, I moved to La Mesa. There’s free parking

that's right off the 8 freeway. Occasionally when I meet people that don’t have a car or something like that, I can meet them at the County Bar [downtown] and book a conference room. So that's pretty convenient as well. It’s kind of like, you have two offices. Eric: Something that is really important to keep in mind with running a business is that you need to think about what the overhead is, because it's really easy to get a big fancy office with super big desks and all that stuff. And then all of a sudden you have to make that amount of money so that you can keep having that stuff. And then I recently went to just doing basically like virtual office and paperless. My desk could fit in my backpack. I did this about three years ago, and I just love the simpling down. Finding Camaraderie as a Solo Alara: I wanted to speak to finding your people, because I remember when I first started on my own, that was a challenge. I just want to encourage people to go out there and meet people. Get involved in causes that matter to you, and you will find your tribe. Jeffrey: To have someone to bounce ideas off of is extremely important. I go downstairs and bother some of the other

solo practitioners in the house that I’m in. Otherwise, I bother other people by calling them up on the phone. I open it up by saying, "Hi, I'm Jeff, so and so referred me to you. Sorry to bother you, but I have a stupid question. Do you have time to talk with me?" Kimberly: We have a group that we get together. I think there are 21, 22 of us lady lawyers, and we have dinner the first Monday of the month so that we can bounce ideas off one another. We recognize we’re solo, but we're not alone. Ways to Relax Eric: I have a music background, and it's a way to de-stress because I get to play drums. I love the fact that I don't have

Adriana Linares

November/December 2018 SAN DIEGO LAWYER 27


to talk to anyone when I'm doing that. I also see a lot of shows. It's a great way to connect with people in the legal community or people outside the legal community on a personal level, which is nice. Deborah: Eric mentioned music. I'm really involved in the jazz community locally. Somehow I got in touch with the top jazz people. It's just amazing. They're my friends. So I see a lot of music. But I’m also in a band. I’m a vocalist. I have house concerts at my home. I invite people, including lawyers, to come. I also paint. I’m an artist. Jeffrey: It's important to supplement the practice of law with something that you can do to relieve the stress: Exercise, bicycle riding, weight lifting, surfing, meditation. Something that you can do to help you relieve the stress of getting beat up on all the time, because you're going to get beat up. Julie: I have dogs, and they're just sweet and fluffy. You hug them, they will hug you back. One of the reasons I have the office that I have is that I'm allowed to bring my dogs in. So if I'm not in court, I will email the client, "Just want to make sure you're not allergic to dogs." And so far I've only

had, "Great, I’d love to meet your dogs. Please bring them in. I’m not allergic." My dogs are very friendly to everyone, so that's just kind of a stress reliever. And then they also have to be walked, so it's kind of nice to take a little break and walk around the block. Pieces of Advice They Wish They Had Been Given or Would Give to a New Solo Jeffrey: Before I became a lawyer, I was a professional ski patrolman for the second busiest ski area in the United States. I’d probably tell myself to stay there and do that. The practice of law is tough. I think the hardest part is the business end of it. I think I would tell myself, you need to get more education in how to run a business. In connection with that, learn QuickBooks. Kimberly: Have your systems in place before you announce you're open for business. Because what I find is, I often kick the can down the road on my administrative tasks and now I'm fighting deadlines. So, having learned there aren't enough hours in the day, I'm happy to do it because it's all for my practice. Calendar block time so that you can get all those tasks done, because there's not just

litigation. There's bookkeeping. There are interviews to be done. There are a lot of competing things for your time. Julie: When you get a new client call, don’t start answering their legal questions. Get them an intake form and make sure that they get it back to you before you start answering even the most basic of questions. Alara: I think one of the things that I would have told my younger self was to know the type of client that you want and where you are going to find them. I remember attending way too many networking events that were not strategic to the type of client I was looking for. Eric: Set a time to check your email and don’t check your email first thing in the morning, because that will give you so much more stamina throughout the day. Usually, the world doesn’t explode if you don’t respond to an email by 5:30 in the morning. Deborah: Always remember that the most money sometimes you'll ever make is the case you didn’t take. Don’t panic if you're not busy, because quality work is better than quantity work. This article does not feature the entire discussion in full — it is edited and condensed to provide highlights.

Top L-R: Jeffrey Pratt, Kimberly Swierenga, Alara Chilton, Eric Ganci Bottom L-R: Adriana Linares, Deborah Wolfe, Julie Wolff

28 SAN DIEGO LAWYER September/October 2018


SMALL + SOLO STATS

COMPENSATION BILLING METHODS1:

$

45% 33%

Hourly45%

45%

4%Fee Fixed

33%

76% Contingency

4%

45%

Attorneys under the age of 35 were the largest group that saw an increase(66%).1

76%

33%

CHALLENGES

4%

45%

22%

6%

Generating New Business Long Hours I work

6%

What do you consider to be the most challenging aspect of your job?

2%

10%

16%

of small-solo respondants identified DIY legal websites or services as competitors.2

35%

12%

Administrative Tasks Collection of Payables 1

Nothing 19%

35%

Marketing

16%

Going to Trial 15%

16% 25%

Other

Difficult Clients

7%

According to a recent Thomson Reuters study, 70% of respondents said spending too much time on administrative tasks posed at least a moderate challenge; 25% of those respondents said it was a significant challenge.2

35% FUTURE GOALS

76%

of attorneys responding to a recent survey reported increased compensation in 2017 over 2016.

These numbers give a good snapshot of how solo practitioners work in the United States.

17%

76%

33%

21% 35%

Other

16% 25%

21%

IN WHAT AREAS DO YOU PLAN ON MAKING A LARGER INVESTMENT IN THE NEXT 12 MONTHS?2

35% Business Development & Marketing

16% 25%

Technology/ Infrastructure

16% 21% 35% Attorney Headcount

10% 25% 16%

Professional Development

16% 21%

Staff Support

10%

Real Estate

10% 10% 25% 16% Retrieved from: https://www.martindale.com/research/ 21%2018 Martindale25% Martindale Legal Marketing Network16% (2018). Attorney Compensation Report. 21%

1

Thomson Reuters (2017). 2017 State of U.S Small Law Firms: Foresight to drive your firm forward. Retrieved from: https://store.legal.thomsonreuters.com/law-products/news-views/small-law-firm/state-of-small-law-study-2017 2


Online Damage Control What to Do With a Negative Review By Brian Keliher

A

20-minute search of AVVO-rated San Diego attorneys reveals numerous blistering posts, casting aspersions on members of the Bar with descriptions including “nasty,”“comical,”“incompetent,” “scumbag” and “high conflict clown.”

The duty of confidentiality is embodied in the California Rules of Professional Conduct, Rule 3-100. An attorney must "maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client."

“There's a reason this guy has a stuffed hammerhead shark in his waiting room,” posted one anonymous reviewer. “He devours everything in sight, starting with his clients.”

“You shouldn’t discuss in public something that is protected by the duty of confidentiality,” says David Majchrzak, senior counsel with Klinedinst San Diego. “That includes not just information covered by the attorney-client privilege, but even something harmful or embarrassing to the client. Posting on a public forum instead of privately responding to the client risks violating that duty.”

Opportunities for clients to vent have surged due to the proliferation of apps including Martindale-Hubbell, Yelp, Google, AVVO, Yahoo and Lawyers.com. The number of reviews staggers, with AVVO alone claiming more than 1 million. Do prospective clients care? According to the Pew Research Center, 82 percent of adults say they sometimes or always read online reviews. And more than two-thirds of regular review readers believe they’re “generally accurate.” What should you do if a hostile client targets you? Some options: IGNORE

An attorney’s claim of “self defense” allows exceptions to rule 3-100, but those are mostly limited to legal malpractice or Bar disciplinary matters. “I understand the argument that you may be defending your reputation when responding to an online comment,” says Majchrzak. “But that’s not what the evidentiary exception is intended for.” Avoiding ethical violations is important. But how you say it matters, too.

“My general advice is to not feed the trolls,” says Holly Amaya, attorney and communications strategist with Scutari & Cieslak Public Relations. “You usually don’t want to get into a tit-for-tat with someone on Yelp about the nuisances of their case against you.”

“What I typically advise clients to do with especially negative reviews — if they say ‘I just can't ignore it’ — is to be 100 percent vanilla,” says Amaya. “For example: ‘Thank you for reaching out. We take these concerns very seriously. We’ll privately direct-message you for more information.’”

Amaya says this hands-off approach is especially appropriate with ad hominem attacks. One AVVO reviewer posted, “So I got $1,500, and he got $8,500. Hopefully he can upgrade his hair plugs with that haul.”

“Your response should be as benign as possible,” says Amaya. “Keep it short. Two or three sentences.”

“That’s the kind of review you don't even touch,” says Amaya. “A personal attack on your appearance. I’d just leave it.”

Notifying the forum of inappropriate content can sometimes work. But each site has its own rules and procedures.

RESPOND Some reviews, though, might be too damaging to dismiss. If so, first, watch your ethics. Next, craft with care.

TAKE DOWN

AVVO’s dispute process, for example, allows removal only if the reviewer is not your current or former client. They’ll take it down during the probe but repost if the reviewer’s status is confirmed. Content verification is not investigated.

Removal based on inappropriate content, if successful, might just backfire. “People have another email address, so they just post another review,” says Amaya. “They become a bigger thorn in your side.” Martindale-Hubbell allows the take down of client reviews. If so, all scores and written feedback are erased and replaced with “This lawyer has chosen not to provide the review(s) provided by their clients.” It’s not clear if this designation helps or hurts. SOLICIT REVIEWS Northwestern University’s Spiegel Research Center found that the first five online reviews have the most influence on consumer behavior. So, acquiring newer, more positive reviews can push the offending review down the page, lessening the damage. Is it ethical for a lawyer to pay a client for a review? California has not yet directly addressed this. But according to Majchrzak, the New York Bar found that an attorney giving a $50 credit to a client for an online review was not an ethical violation. “But the lawyer may not coerce or compel the client to prepare the review,” says Majchrzak. “The review must be done by the client, and the credit may not be contingent upon the content.” Martindale-Hubbell offers subscribers the opportunity to choose up to two reviews with feedback to display at the top of their client review section. Of course, for a price. LOOK INWARD Finally, consider introspection. If you see an uptick in negative reviews, along with a consistent theme, it might not be the clients. It might be you. And consider losing the shark. Brian Keliher (brianklegal@gmail.com) is an attorney and Business Administration Chair at Grossmont College.

November/December 2018 SAN DIEGO LAWYER 31


HIRING TRENDS

What Firms Need to Know By Henry Angelino

2

018 is coming to a close and many firm leaders are thinking about their plans and goals for 2019. One typical consideration is whether to expand their firm by hiring additional staff and/or attorneys. Do they need an assistant or an associate just to keep up with their case load, and can the budget support another salary? If this is their first employee, they have the added concern of ensuring the structure and procedures are in place to properly manage and efficiently/effectively utilize an employee. Thus, careful planning and research should be part of this major decision, and hiring a new employee should not be taken lightly or done in haste. So, you think you are ready to move forward and expand your team but aren’t sure of the best path to take in finding a quality candidate. The first step is to make sure you have a complete description of the knowledge/experience requirements, duties and responsibilities for the position, and know the traits you are looking for in your ideal candidate. Additionally, what are your expectations if the position is for a billing professional? Are you looking for a more experienced employee or do you want a less experienced employee that you can train without having to worry about “bad habits” or “knowledge gaps” from previous employers? Do you want to conduct the search or hire a recruiter to do the initial search and screening for you? OK, you have done your homework and are ready to initiate a search. What do you need to know about the current legal hiring market to increase your chance of success? Here are a few trends that I am seeing in San Diego.

• There is an increasing number of smaller and mid-sized firms that are growing and looking for qualified candidates to fill attorney and staff positions. Some of the fastest growing firms are groups of attorneys that have left larger firms to create their own firm and culture. • There are fewer associate attorneys available due to lower numbers of law students in recent years and it is harder to find associates with three to five years of substantial law firm experience, a typically desired attribute. On the positive side, there is an increasing number of diverse candidates applying for positions. • Qualified candidates with a solid performance record are in high demand and will usually be exploring multiple opportunities simultaneously. Thus, employers must be ready to move quickly to evaluate quality candidates and make a hiring decision. • Small to mid-sized law firms are using contract attorneys or part-time support staff personnel to assist with excess legal and administrative tasks. This allows the firm to “test drive” employees before making a permanent hire while remaining within their budget. Another trend is to outsource various human resource and administrative tasks to reduce the time spent to manage the firm and remain compliant with the changing laws and regulations. • Support staff are more highly qualified and willing to perform multiple roles within small and mid-sized law firms. Many candidates have a paralegal certificate and thus can generate

revenue to help offset their salary and benefit costs. Additionally, some more experienced support staff candidates are applying for traditionally entry-level positions and bringing their considerable breadth of skills and experience to smaller firms. Alternately, you will receive a very large number of applications for entrylevel positions and will need to separate qualified from unqualified candidates, which can be time-consuming. • Turnover rates are increasing, causing firm leadership to spend more time hiring and training new employees after a dismissal or departure. Some of the reasons I have seen for this trend is a disparity in values or priorities, employees not meeting stated expectations, and employees not investing the time and effort to build sound legal skills and produce quality work. Adding new members or service providers to a small or mid-sized law firm team can improve employee and client care, increase productivity, and reduce the time required by leadership to manage the firm while freeing up partners for strategic initiatives, business development and training/ mentoring employees. To be successful though, firm management must ensure they carefully and quickly screen qualified candidates to ensure the right cultural and capability fit. Not always an easy task given the current hiring environment! Henry Angelino (henry@angelinoconsult.com) is the owner of Angelino & Associates, Inc. and a strategic business and operations consultant for law firms.

November/December 2018 SAN DIEGO LAWYER 33


12 Tips for Solo Success By James Crosby This piece was originally titled “Tips for Solo Survival." But mere survival is not really a viable long-term option for most attorneys. You will tire of the struggle to make ends meet and the demands on your time without acceptable corresponding financial reward, and eventually move onto something different. The goal is to succeed professionally, financially and personally. Here are some tips from a long-time solo litigator/trial attorney to help make that happen.

1

Market, Market, Market

You have to commit to robust, regular, never-ending marketing — lunches, dinners, drinks, articles, professional organizations, blogs, email campaigns, social media…whatever works best for you! You are in a highly competitive marketplace with tons of lawyers hustling for business. If you don’t market all the time, if you don’t compete for business all the time, your solo practice will, at best, survive and, at worst, fail. You will not have a firm brand to help with client generation or partners sending you work. You’re on your own; you have to market, market, market!

2

Guard Your Professional Reputation and Image

Your professional reputation and image go hand-in-hand with your marketing efforts. Prospective clients and referral sources will check you out before they hire you or refer you work.

34 SAN DIEGO LAWYER NovemberDecember 2018

Your reputation and image matter. What other attorneys say about you and your work matters. How you treat opposing counsel matters. What your online presence says about you matters. Continually build, with everything you do, and tenaciously guard, with everything you do, your reputation. It is the lifeblood of your practice.

3

Do Excellent Work and Provide Great Personal Service

This seems obvious, but to succeed, solos simply have to work harder, perform better and provide better service than firm attorneys. With many clients and referral sources, there is an inherent, I think unfounded, perception that solos cannot compete with larger firms. You have to work hard to overcome, or more precisely, not validate that perception. Start with promptly returning calls — do that and you are way ahead of a good chunk of your competitors.

4

Case Selection is Key — Take Good Cases, Don’t Take Bad Ones

You must be disciplined in your case selection. More precisely, you must have the discipline to say “No” to a marginal case even when you are not that busy. Slow-pay or no-pay work, or poorly vetted contingency matters, will kill a solo practice. Cash flow dies, and better work is squeezed out or not properly attended to. You are better off hustling for new business than spending that valuable time on lousy cases that don’t make you money.

5

Enforce Fee Agreements

6

Set Market Rates and Hold to Them

Get written fee agreements and, more importantly, enforce them. If the client is not paying in accordance with the fee agreement, get out and move on to the next client. If the client will not replenish a retainer per the agreement, get out and move on to the next client. You are running a business, you need cash flow to meet your business obligations and take money home. Make sure the clients meet their contractual fee obligations. You are their lawyer, not their legal credit line. It’s no fun, and bad business, to be at the office at 10 p.m. on a worknight, or on a weekend, working for a client who is not meeting his fee obligations. There is plenty of worthy pro bono work to be done, by choice! Don’t let your supposed-to-be-good-paying clients become pro bono ones.

Your attorney time is valuable. It has a market value based on your experience, reputation and expertise. Investigate the market, ask other lawyers, determine what your rate should be for what clients, and then stick to that rate. Discounting your rates to get new clients is bad business. It is a race to the bottom. There is always an attorney around the corner who will work cheaper than you. Discounting your rates at the outset undermines your value to your practice, and the perception of your value to your client. If you want to give some money back to a good client, give a courtesy discount for work done on the bill. Don’t cut your rates.


7

Religiously Monitor Your Finances & Pinch Every Penny

Cash flow is critical in a solo practice. Regularly monitor your collections, your billings and your expenses to maintain cash flow. If a client is not paying when she should, call her. (Honestly, if you can’t call a client to ask for payment on a pastdue invoice, you are probably not cut out for solo practice). Get your billings out promptly — don’t sit on cash flow in the form of unbilled, uninvoiced, time. Track and promptly bill all expenses. You paid those expenses, that’s money out of your pocket. Promptly bill and get reimbursed. On the firm expense side, buy what you need to work harder, perform better and provide better service than other attorneys. But beyond that, pinch every penny. It’s not the big, well-thought-out, fully vetted, expenditures that hurt. You have likely done the cost-benefit analysis on such purchases — they will make you money. It’s the accumulated small expenditures that hurt. Get what you need — after that, pinch every penny.

8

Make Your Quarterly Tax Deposits

Make your quarterly tax deposits. Religiously set aside the money you need to pay your taxes. Once you start slipping back on your tax set-asides/deposits, you will soon find yourself getting extensions on your returns to make the money to pay last year’s taxes. And that is a difficult cycle to get out of. It requires discipline and, sometimes, a leaner take-home than you

might like but don’t get yourself into the “get an extension to make money to pay last year’s taxes” cycle. Been there, done that; it can get brutal.

9

Invest in Good Equipment & Software

Invest in good, reliable equipment and regularly upgraded, established software. These are the tools you use to efficiently produce quality work and provide good service. Yes, pinch pennies and scrutinize expenses, but don’t cheap out on the core functions of your practice.

10

Prepare for the Unexpected — Redundancy and Backups

Expect failures — build in redundancies and regularly back up your data. Don’t let your practice become paralyzed by a hard drive or equipment failure. Computers, hard drives and basic office machines (printers, scanners, etc.) are pretty cheap these days. Have an extra desktop, or printer (even cheap ones), ready to go in the event of a failure. And, back up your data! Any IT person will tell you, your hard drive, with all your data, will fail. It’s just a matter of time. Lost data, without backup, is a disaster. Lost data, with backup, is an annoyance.

11

Keep It Simple

This is a pretty simple business. The law can be complicated and complex, and the legal work can be challenging. But, as a business, a law practice is quite simple. We do work, we bill for that work, we

collect money in response to billings, we pay our firm expenses and taxes, and we take the rest home. The law can be difficult — the business of law is not. Keep it that way. Don’t complicate things with complex, untested software where simpler, tested software will do the trick. Don’t invest in complicated case management/ calendaring software, where dual calendars and a regular calendar review will do the trick. Don’t maintain labor-intensive physical files when most everything either comes to you electronically or can be easily scanned and maintained electronically. Don’t mail statements when you can email them. Don’t pay bills with mailed checks when you can pay them online. Don’t reinvent a document every time when you can create a document template for repeated use. Don’t write your time down on a yellow pad and then enter it again into your billing program — enter it directly into the program the first time. Simplicity means efficiency. Efficiency means reduced overhead, solid hours worked and billed, better service, and happier clients. Happy clients, solid billings and low overhead means fewer late nights and more money in your pocket. Fewer late nights and more money makes you happy. Keep it simple!

12

See No.1 Above

James Crosby (crosby@crosbyattorney.com) is a solo practitioner.

November/December 2018 SAN DIEGO LAWYER 35


Friend & Patron Members The San Diego County Bar Association gratefully acknowledges its Sustaining Members for their outstanding commitment and generous support in 2018. PATRON MEMBERS Marc D. Adelman

Alexander Isaac Dychter

Laura H. Miller

Doc Anthony Anderson

Sergio Feria

Gerald S. Mulder

Judy S. Bae

James P. Frantz

Victor E. Bianchini

Douglas A. Glass

Jedd E. Bogage

Alvin M. Gomez

Connie Broussard

Charles R. Hayes

Jose S. Castillo

Van E. Haynie

Todd F. Stevens

Andy Cook

Stephen M. Hogan

Kimberly Swierenga

Steven T. Coopersmith

Rhonda J. Holmes

Thomas J. Warwick

Ezekiel E. Cortez

Richard A. Huver

William O. Dougherty

Steven Henry Lorber

Charles A. Pinney Teodora D. Purcell Johanna S. Schiavoni

Andrew H. Wilensky

New Patron Membership Option Patron members may now attend any SDCBA CLE or social event at no charge. For details, visit www.sdcba.org/renew or contact the SDCBA Member Services team at mbr@sdcba.org.

FRIEND MEMBERS Laura Ashborn

David B. Dugan

Marguerite C. Lorenz

Steven Barnes

Thomas Fitting

Raymond J. Navarro

Robert J. Baumer

Susan K. Fox

Anthony J. Passante

Scott Carr

Ronald Leigh Greenwald

Anne Perry

Linda Cianciolo

Ajay K. Gupta

Teresa E. Dietz

Mark Kaufman

Kristi E. Pfister Michael J. Roberts Stella Shvil


SOME LESSONS ON FLYING SOLO By Matthew Lab or most attorneys, the thought of opening a solo practice is exciting, liberating and terrifying at the same time. Since its inception in 2012 as the first attorney incubator on the West Coast, California Western School of Law’s Access to Law Initiative (ALI), has been privileged to provide support, tools and training to empower entrepreneurial and public serviceminded attorneys to launch and develop their law practices. ALI encourages its attorneys to include “make-a-difference-law” as a component of their law practices through the provision of pro bono and/or “low bono” legal services to modest means clients. With this commitment to public service in mind, I thought it might be helpful to share some thoughts from ALI alumni attorneys about interesting lessons they have learned through the process of developing their practices:

F

Extend Courtesy. “This is one of the most important characteristics that I have developed since starting my solo family law practice, although it has not been easy. To my dismay, I discovered early on that not every opposing counsel will extend courtesy, even if it seems warranted. I will never forget the time that I had to go on emergency medical leave and requested that opposing counsel push back a hearing that he had set on calendar, which he summarily denied without reason. As such, I had to drag myself to court the following day, ex parte, to request a continuance of opposing counsel’s hearing, which was granted. Later, after the postponed hearing (at which my client prevailed, by the way), perhaps recognizing that his earlier lack of courtesy was in bad form, opposing counsel began treating me with respect, professionalism and, yes, courtesy. This change of environment allowed us to work amicably together, and efficiently resolve the divorce. The best characteristic I continue to enhance as a solo practitioner through ALI thus far is to be courteous, while understanding that there will be those who do not reciprocate.” Jylan M. Megahed, Esq. Keep Up With Invoicing. “Bill twice per month: on the 13th and two days before the first of the next month, and give the client two calendar days to review the invoice prior to payment due or the transfer of money from IOLTA to your operating account. This has several benefits: (1) The client is not shocked of the

accruals along the way, which avoids surprises and disputes; (2) It keeps them informed that work is being performed consistently on their case; and (3) It helps you figure out how you are doing financially mid-month, which helps you decide how hard you need to work the second half of the month. Billing should be easy. Prepare your time sheets simultaneously as you perform work (use a smartphone app if necessary); that way by the time you do billing, it is just a few clicks.” Brianna S. Davis, Esq. Networking Is Even More Important Than They Told You. “When you are a solo attorney, you should aspire to become a walking (ethical) advertisement. Aside from going to networking events, make sure everyone you know and meet knows you are an attorney. This includes your friends from high school, your Uber driver, your

“When you are a solo attorney, you should aspire to become a walking (ethical) advertisement. "

barber, etc. It might sound pretentious on the surface, but context is key. If you are having a pleasant conversation with someone long enough, eventually what you do for a living comes up naturally. Even if the person you are speaking with has no use for the practice area(s) you focus on, assure them you may know other attorneys that can assist them with their legal issue. If that means investing time to find an attorney for them, do it. In turn, the client will be grateful that you went the extra mile to make sure they got the help they needed, and the attorney will likely be grateful for the connection and keep you in mind for referrals as well. One side note to this: If possible and ethically permissible, send a referral fee to any attorney that thinks enough of you to send you potential clients. The free exchange of work is good for everyone.” Clark Ovruchesky, Esq.

Carve Out Time to Recharge. “We have all heard the saying, ‘Don’t leave money on the table!’ which makes sense — to a point. Although it can be tempting to take on every matter that comes through the door for which you are qualified, it is always important to analyze the toll that the additional work might take on your current caseload as well as your personal life and well-being. While you may arguably have the time for the extra work, (after all, there are 24 potential work hours in the day!) the cost of doing so may lead to burnout on both the professional and personal sides of your life. Those additional late hours might be time that could otherwise be spent relaxing and recharging with your friends and family. Work-life balance is extremely important in any job, but especially when you are the owner of the business, because if the captain goes down, so does the ship. If you have overflow work and think that taking it on will adversely affect your well-being, consider referring it out to another attorney, which may lead to a referral fee. This way, you can look after your work-life balance without affecting your finances.” Matthew A. Lab, Esq. Most Attorneys Do Want to Help You. “Since venturing into the solo practitioner world with ALI, the most important thing I have learned is that most seasoned attorneys actually enjoy being a resource for less-experienced attorneys. Why? I don’t know. But the more important question is ‘How do I find these more experienced attorneys who really want to answer my (sometimes basic) questions?’ When you get involved in the San Diego community, you will meet these special people. So join as many SDCBA Sections as you like and attend mixers and community service events; join Lawyers Club and get on a committee; join diversity bar associations like the Tom Homann LGBT Bar Association. Most people you meet will actually want to know about your experiences in your shared practice area. Most will willingly offer their business cards and make themselves available to you via phone or email to answer your questions. And so, yes, most people in the San Diego legal community really do want to assist you. They won’t come to you — you will have to make the first move by becoming engaged and active in our legal community.” Julie Wolff, Esq. Matthew Lab is Director of the Access to Law Initiative at California Western School of Law. November/December 2018 SAN DIEGO LAWYER 37


Coming Full Circle By Rebecca Lack

I

never set out to become a lawyer, yet here I am. After I graduated from Helix High School in 1973, I attended Grossmont Junior College. I intended to fulfill all of my required courses there, then transfer to a four-year college where I could concentrate on my core substantive courses. Back then I thought I wanted to become an evidence technologist, a CSItype person. Then I figured out evidence technologists worked 24/7. I was working part time at Grossmont Hospital in 1976 when I decided to apply for a Monday to Friday job, and continue my college classes at night. I found a job listing in the newspaper for a general office clerk at MBF Interiors. I went to their offices in Kearny Mesa, filled out an application and got an interview. I didn’t get that job, but about a week later, out of the blue, I received a telephone call from a female attorney. She and her husband were friends with the owners of

38 SAN DIEGO LAWYER NovemberDecember 2018

MBF Interiors, and had an opening for a legal secretary trainee. She asked if I was interested in the job. I drove downtown right then, interviewed and took a typing test. I was offered the job. It paid $400 per month, plus paid parking behind the building at Sixth and E Streets. I started that job on June 20, 1976; I was 20 years old. In my search, if I’d seen a job listing for a “legal secretary trainee,” I wouldn’t have considered applying for the job. Getting into the legal field was not even a blip on the radar screen for me. Growing up, I’d never even met a lawyer. Neither of my parents went to college, nor did their siblings or parents. In my family, I was the first one of about 65 close relatives to even go to a junior college. My sisters and I were encouraged to get a job that had health benefits, not go to college. In 1978, I was working as a legal secretary for an attorney who decided to retire and close his law practice. It’s also the job

where I met Jim McElroy, yes, that Jim McElroy, who was an associate there. In preparation for my transition, I applied for a job at four different law firms and was offered all four jobs. My then nextdoor neighbor was an attorney and I asked him which job I should take. He told me there was no comparison — I needed to accept the job at Rhoades & Hollywood. On October 29, 1979, I began working at the job that would change my life forever — as secretary to Dan White at the law firm that was then known as Rhoades & Hollywood. (It is now Neil, Dymott, Frank, McFall & Trexler.) While working for Dan in insurance defense, we handled a variety of cases, including auto, product and even avocado root rot. (For you inquisitive minds, the Latin term for avocado root rot is phytophthora cinnamomi, and I still remember it from that case back in 1981.) I was extremely proud to work for Dan White. He was well-respected, smart


and nothing short of professional. The discovery process was easy back then. We just gave them everything we had and expected the plaintiffs’ bar to do the same. We never served only objections to discovery requests. Never. Extensions were routinely granted. Attorneys voluntarily produced their clients at the respective attorneys’ offices. The practice of law was fun and collegial. Cooperation was the name of the game and “sanctions” was a four-letter word. In 1981, Dan suggested to me that I should become a lawyer. He offered to assist me with getting in to law school, even though I had foregone a four-year degree when I began my full-time job as a legal secretary. I must have looked at him like he was speaking a foreign language. Considering my background, it was beyond my wildest imagination that I could become an attorney. I applied for a Legal Secretary Scholarship to attend Western State University. Out of several other applicants, I found out I won the scholarship. I started law school and continued to work full time for Dan White while I went to law school part time at night.

are fleeting and in the long run serve only as fodder for storytelling. In the end, it is the process that becomes the miracle, and in each case we take unfairness and turn it into right by the use of our skills honed by study and experience. That is the great value of this journey. My journey to become an attorney was not one sought out by me, nor even thought by me to be possible. After becoming an attorney, I’ve come to realize that I was prepared for this profession from the day I was born. I’m the middle

After owning my own small firm for a decade, I found myself questioning how I would spend the remainder of my years practicing law. I had worked on a mold exposure case in Carmel for about two years where I’d been in the Monterey Peninsula for several weeks taking depositions and gearing up for trial when that case settled in August 2016. The very next day, I received a call from Dan White’s office asking me if I could do some contract work for his firm. Because my next three weeks had just cleared up, I jumped at the opportunity to work with my all-time favorite boss again for the first time since 1988 — this time as an attorney, not a secretary. When the “contract” work turned into a job offer, I felt like warm molasses covered my body. These were words I’d longed to hear from him ever since I was sworn in to practice law. When I hear his voice down the hall, I feel like I’m home again.

"My journey to become an attorney was not one sought out by me, nor even thought by me to be possible. After becoming an attorney, I’ve come to realize that I was prepared for this profession from the day I was born."

At times, I found myself cursing Dan White after I experienced the front line of battle as an attorney. Many of the defense attorneys I’ve found myself against are not as forthcoming and professional as I witnessed in Dan year after year. Yet, I wouldn’t trade what I get to do for a living with anything else. I get to right wrongs. I champion the cause of the harmed. I get to guide the aggrieved through the justice system. I get to help people. The 20th thank-you card from my clients was as meaningful as the first. It’s my clients’ case, their one day in court, their one chance at justice, and I get to hold their hand through the process.

Sometimes we perform heroically as attorneys and are not fully appreciated. On other cases, our self-appraisal will be that we’re worthless, yet achieve great praise from our clients. But those consequences

Consider the sheer delight I must feel to be here, in this position, having just finished my first trial with Dan White, an insurance bad faith case. In the early 1980s I had been his right arm through dozens of trials and was proud to be there with him, but always enjoyed watching his closing argument from the gallery. This time, I got to be on the other side of the bar with him. It seemed almost surreal. This time it was our verdict, just like all the rest of them, but this time I was able to play a much bigger role in getting to that finish line.

of three girls. I’m 13 months behind my older sister, and 16 months ahead of my younger sister. We argued as siblings often do. Arguing became like a hobby to me. I recall an argument with my older sister when I was about 10 years old, where I planned out my entire argument, questions included, and had her backed into a corner, figuratively, before I was even finished. If my life hadn’t taken this path, all of that practice would have been for nothing. Today, my sisters are all too proud to have been my sounding boards for all that “work” leading up to today.

At this stage of my career, after practicing law for more than 20 years, it was a dream come true to enter that courtroom for trial with the man who single-handedly pushed me to the brink of my potential. I’ve come full circle indeed.

Rebecca Lack (rlack@whiteamundson.com) is an attorney with White & Amundson, APC.

November/December 2018 SAN DIEGO LAWYER 39


WHAT YOU NEED TO KNOW ABOUT THE NEW REQUIREMENTS FOR ATTORNEYS REPRESENTING CLIENTS IN MEDIATION EFFECTIVE JANUARY 1, 2019 By Ana Sambold

U

nder current California law, oral and written communications used in the course of a mediation consultation or during the mediation process are not admissible in evidence and are not subject to discovery. With few exceptions, all communications, prepared documentation, negotiations, and settlement discussions by and between participants or with the mediator are confidential and cannot be used in a subsequent legal action, including an action by a mediation client against his or her attorney. The relevant statutes protecting mediation confidentiality were provided in sections 703.5 and 1115-1128 of the Evidence Code. The legislature’s intent was to promote the resolution of disputes in mediation by ensuring the participants that they could speak candidly without those discussions being disclosed in later civil trials or proceedings. However, the California Supreme Court’s decision in Cassel v. Superior Court, 51 Cal. 4th 113 (2011) sparked a seemingly endless debate about whether confidentiality restrictions should be loosened to allow clients to use information obtained in mediation to sue their attorneys for malpractice. In 2012, to address this issue, the Legislature directed the California Law Revision Commission (CLRC) to study the relationship between mediation confidentiality and attorney malpractice

40 SAN DIEGO LAWYER NovemberDecember 2018

and to recommend whether or not the mediation confidentiality statutes should be changed. After a five-year study, the CLRC issued a final recommendation in December 2017. The CLRC recommended a statutory change to permit the disclosure of otherwise confidential communications in a disciplinary proceeding or a cause of action for damages based upon a claim of malpractice, if the evidence is relevant to prove or disprove the allegation. This recommendation generated overwhelming opposition and the CLRC was unable to find a legislator to carry a bill. As a result, a new approach was taken by Senate Bill 954, which was introduced by Senator Wieckowski on January 30, 2018. It will require attorneys to make sure their client understands the implications of California’s legal protections for mediation communications, before the client agrees to mediation. The bill was signed into law on September 11, 2018, and is effective January 1, 2019. It amends Section 1122 of the California Evidence Code and adds Section 1129. Who has to comply with the requirements imposed by the new law? An attorney representing a client participating in a mediation or a mediation consultation. Mediators do not have any obligation under this law. However, it’s important for mediators to know about these new requirements.

What type of lawyers are exempt from this requirement? Attorneys representing mediation participants in a class or representative action are exempt from this new disclosure rule. What exactly are the new requirements? The attorney must provide the client with a printed disclosure containing the confidentiality restrictions described in Section 1119 of the California Evidence Code and must also obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions. When is the attorney required to comply with these requirements? As soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation. If the attorney is retained after an individual agrees to participate in the mediation or mediation consultation, he or she shall, as soon as reasonably possible after being retained, comply with the printed disclosure and acknowledgment requirements. How shall the attorney comply with these requirements? By providing the client a printed disclosure which shall: (1) Be printed in the preferred language of the client in at least 12-point font; (2) Be printed on a single page that is not attached to any other document


provided to the client; (3) Include the names of the attorney and the client, and be signed and dated by the attorney and the client. If the above-mentioned requirements are met, the bill provides the actual written disclosure as a “safe harbor.”That is, if an attorney uses the following language, that will be deemed compliance.

MEDIATION DISCLOSURE NOTIFICATION AND ACKNOWLEDGMENT

To promote communication in mediation, California law generally makes mediation a confidential process. California’s mediation confidentiality laws are laid out in Sections 703.5 and 1115 to 1129, inclusive, of the Evidence Code. Those laws establish the confidentiality of mediation and limit the disclosure, admissibility, and a court’s consideration of communications, writings, and conduct in connection with a mediation. In general, those laws mean the following: • All communications, negotiations, or settlement offers in the course of a mediation must remain confidential. • Statements made and writings prepared in connection with a mediation are not admissible or subject to discovery or compelled disclosure in noncriminal proceedings. • A mediator’s report, opinion, recommendation, or finding about what

occurred in a mediation may not be submitted to or considered by a court or another adjudicative body. • A mediator cannot testify in any subsequent civil proceeding about any communication or conduct occurring at, or in connection with, a mediation. This means that all communications between you and your attorney made in preparation for a mediation, or during a mediation, are confidential and cannot be disclosed or used (except in extremely limited circumstances), even if you later decide to sue your attorney for malpractice because of something that happens during the mediation. I, _____________ [Name of Client], understand that, unless all participants agree otherwise, no oral or written communication made during a mediation, or in preparation for a mediation, including communications between me and my attorney, can be used as evidence in any subsequent non criminal legal action including an action against my attorney for malpractice or an ethical violation. NOTE: This disclosure and signed acknowledgment does not limit your attorney’s potential liability to you for professional malpractice, or prevent you from (1) reporting any professional misconduct by your attorney to the State Bar of California or (2) cooperating with any disciplinary investigation or criminal prosecution of your attorney. __________________________________ [Name of Client] [Date] __________________________________ [Name of Attorney] [Date]

What are the consequences for noncompliance? Failure of an attorney to comply with these new requirements will subject him or her to State Bar disciplinary proceedings. Whether the attorney complies or not with this statute, it does not affect the settlement. The failure of an attorney to comply will not cause the settlement prepared in the course of or pursuant to a mediation to be set aside. However, any document relating to an attorney’s compliance with the disclosure requirements could be used in an attorney disciplinary proceeding (so long as the document does not disclose anything said or done during the mediation). In summary, the approach taken by this new bill seems to be a much better alternative to the final recommendation issued by the CLRC in December 2017. It does not open the door to more litigation and it is always a good policy for attorneys to advise their clients of the mediation confidentiality restrictions — prior to the mediation. For the full text of the new bill visit: https:// leginfo.legislature.ca.gov/faces/billTextClient. xhtml?bill_id=201720180SB954

Ana Sambold (sambold@sambold-law.com) is a commercial mediator on the San Diego Superior Court and ADR Services, Inc. panel of neutrals.

SERVING OUR COMMUNITY SINCE 1983 “… you will not find a more hard working & diligent attorney than Richard Duquette.” - L. T. (CLIENT)

DUI & CRIMINAL DEFENSE Call Now For Your FREE Consultation

“I promise exceptional customer service & personal attention to all of my clients and their cases.”

RICHARD L. DUQUETTE

760.730.0500

© Law Firm of Richard L. Duquette

ATTORNEY AT LAW

911Law.com rlduquette@911Law.com REFERRAL FEES PAID BY LAW


PEOPLE v. SANCHEZ REVISITED EXPERT OPINIONS AND HEARSAY By Robert Ryan BACKGROUND OF SANCHEZ

6th Amendment right of confrontation.

Up until June 30, 2016, when Supreme Court Justice Carol Corrigan issued the unanimous opinion of the Court in People v. Sanchez, 63 Cal 4th 665, expert witnesses could rely on case-specific facts that were drawn from hearsay sources in forming their opinions. Hearsay, which is an out-of-court statement, not under oath, that is being offered to prove the truth of the matter asserted, could be used to support an expert’s opinion.

Because Sanchez applies to basic hearsay rules, it operates in the civil court at 330 West Broadway as well as the criminal court at 1100 Union Street.

The rationale for admitting the case-specific hearsay was based upon the reasonable reliability of the evidence, and that it was not being admitted for its truth. Further, the judge could always provide a limiting instruction to the jury. As a third protection, the judge could sustain an objection under California Evidence Code §352, if she felt that the prejudicial effect outweighed the probative value. People v. Montiel 5 Cal 4th 877 (1993). However, the Sanchez Court concluded that it was not logical for a jury to find that an expert’s opinion was reliable and true, when the facts relied upon by the expert were not reliable and true. As a result, all experts must now either have personal knowledge of the case-specific facts supporting their opinion, the facts must fit within an exception to the hearsay rule, or they must be non-hearsay. Otherwise, the supporting evidence is inadmissible hearsay. The result is that the expert opinion fails for lack of a foundation. An expert, however, may still testify as to hearsay which is background information, generic information or scientific principles generally accepted in their field of expertise. The Sanchez holding came out of a criminal case. A gang expert for the prosecution was allowed to render an opinion that the defendant was a member of a gang, therefore invoking enhanced penalties at sentencing. However, the expert relied on testimonial hearsay statements of police officers and gang STEP notices, with no personal knowledge. The Court found that this evidence violated both the hearsay rule and the accused’s 42 SAN DIEGO LAWYER NovemberDecember 2018

THE APPLICATION OF SANCHEZ IN CIVIL CASES Expert opinions are important because they provide valuable opinions for the jury, which are beyond the common experience of most jurors. California Evidence Code §§ 801, 802. The following are a few examples of the application of Sanchez in the tort arena. Medical Opinions: If a diagnosis of another physician is relied upon by the expert, a deposition of that physician must be taken. It should be videotaped, with proper notice. C.C.P. 2025.220 (a)(5)(6). You must be sure to have your treating physician render her opinions at the time of her deposition, in order for your expert to rely on those opinions when she gives her expert deposition. This is important because all of your experts’ opinions must be set forth in her expert deposition. Jones v. Moore 80 CA 4th 557 (2000); Kennemer v. State of California 133 CA 3d 907 (1982). At trial you may also play the video of your treating physician pursuant to C.C.P. 2025.620(d). Police Reports: Historically, an expert could review statements of witnesses in a police report to support her opinion as to the causation of the crash, or the biomechanics of the injury. Now the witnesses must be located and deposed. The witness statements are testimonial hearsay and are inadmissible to support the expert’s opinion. The problem is that it can be very difficult to locate witnesses with the passage of time. Prior Similar Occurrences: Prior similar occurrences are important in dangerous condition cases to show that the landowner had notice of the condition by virtue of a similar incident. If you cannot locate the prior witness or victim of the similar occurrence, the defendant will argue that she had no notice. Even if you

are fortunate enough to locate a report, the statements in the report cannot be used by your expert because they are hearsay. Prior similar incidents also come up in employment cases, such as sexual harassment. But you have to find the prior “me too” witnesses and depose them. Missing Video Tapes or Parts of a Product: As a plaintiff’s lawyer I have found the following general rule operates whenever I request a video tape or a product part: “If the video tape or product part hurts the defense, it is usually gone; if it helps the defense, it is usually produced.” Therefore, it is always necessary to send a notice to preserve all video tapes or product parts, in product liability cases. Then, if the defense asserts that they did not have notice to retain the evidence, you can admit your letter as “notice.” This is generally admissible as a form of non-hearsay. Medical Records: Medical records can be authenticated under the business records exception by having the custodian of records establish that the records were made in the regular course of business, concurrently with the event, using a reliable mode of preparation and shown to be trustworthy. Evidence Code §§ 1270, 1271. Your expert can then rely on those records as a whole. However, in order to have your expert recite specific statements of a physician from the medical chart, you must take the deposition of the declarant doctor. Only that doctor can lay the proper foundation for the statement to be used by your expert. Treating Physicians: Always list your treating physicians as non-retained experts, so that they can render an opinion on causation, damages and the standard of care. Schreiber v. Estate of Kiser 22 Cal 4th 31 (1999). Then take their depositions. If the defense notices the doctor’s deposition, then you need to “join” in the notice, so that you will be able to ask the key questions on causation and injuries at the deposition. Medical Bills: Make a list of all your plaintiff’s medical bills. Have your client go through the list and identify each bill and state if she


is responsible for payment. This is necessary because it’s the amount of medical bills that are owed, not billed. Howell v. Hamilton Meats 52 Cal 4th 541 (2011). Each side may have a billing expert who is familiar with that particular area of medicine go through the bills and give their opinion as to whether the bills are reasonable and customary in the community. And you may also have your non-retained, treating expert opine on this. Ochoa v. Dorado 228 CA 4th120 (2014); Pebley v. Santa Clara Organics 22 CA 5th 1266 (2018). SOME SOLUTIONS FOR SANCHEZ The following are strategies to employ in order to allow for your expert to use casespecific facts to support her opinions: 1. Personal knowledge by the Expert: Always have your expert go to the scene of the incident and make her own personal observations. Have her talk to all key witnesses, and you depose them. Then give the depositions to your expert to support her opinion. 2. Admission by the party Opponent: Any statements made by either party which are against their interest (not for their interest, or self-serving) are admissible for the expert

to use in forming her opinion. This is a classic exception to the hearsay rule. Therefore, if the plaintiff makes damaging admissions to her physician that are in the medical records, those may be used by opposing counsel. 3. Statements as to the state of mind or physical condition: If the proper foundation is laid, a patient’s subjective complaints to her physician which go to her “state of mind or physical condition” may come in. 4. Have your expert personally review the MRI, CT and X-ray images. Her personal examination of the diagnostic image, not just the radiology report, allows her to testify as to the nature and extent of that injury. 5. Cross-examination of the expert: Here, the attorney doing the cross-examination is using case-specific hearsay to impeach the expert’s opinion. There is wide latitude given in the cross-examination of an expert witness. People v. Townsel 63 Cal. 4th 25, at 55-56 (2016); Evidence Code §721(a). However, as a plaintiff’s attorney, you need to argue that the Sanchez rule precludes statements being used, unless they are admissions. And there is authority for the limitation of hearsay in the cross-examination of a defense expert in a criminal case. People v. Malik 16 CA 5th 587, at

597-598 (2017). Argue that this case applies to your civil case. 6. Business records: A document that satisfies the elements of this hearsay exception may be relied upon by an expert. Evidence Code §§ 1270, 1271. But the recitation of statements may be precluded. See Medical Records, supra. 7. Both sides stipulate to waive Sanchez: |In civil trials, most judges will allow the parties to agree to waive the Sanchez rule and admit case-specific hearsay to support the experts’ opinions. However, as a plaintiff’s attorney, I would not do this. It gives the defense free reign to go through a thousand pages of medical records and pull out small damaging chart entries which are hearsay, and publish them to the jury. In conclusion, the Sanchez case has made trial preparation more burdensome and expensive. However, the foundation that you establish for your expert will make her opinions more persuasive and compelling. Robert Ryan (robert@ryanlaw.net) is a solo practitioner.

THE GOLD STANDARD in Private Dispute Resolution FEATURED PANELIST

Thomas Sharkey, Esq. Judicate West is proud to also offer the services of these experienced and talented local neutrals:

MAIN AREAS OF EXPERTISE: Business/Contractual Insurance Coverage & Bad Faith Professional Malpractice Personal Injury Real Property

Andrew Albert, Esq. N. Denise Asher, Esq. Hon. Victor Bianchini (Ret.) Jonathan Brenner, Esq. Hon. Steven Denton (Ret.) Hon. Christine Goldsmith (Ret.) Hon. John Hargrove (Ret.) Craig Higgs, Esq. Hon. Herbert B. Hoffman (Ret.) Jeffrey Joseph, Esq.

Robert Kaplan, Esq. Hon. William McCurine, Jr. (Ret.) Hon. David Moon, Jr. (Ret.) Hon. Thomas P. Nugent (Ret.) Hon. Leo Papas (Ret.) Gregory Post, Esq. Hon. Ronald S. Prager (Ret.) Hon. Joel M. Pressman (Ret.) Hon. Linda Quinn (Ret.) Maureen Summers, Esq.

Please call or visit our website at WWW.JUDICATEWEST.COM | (619) 814-1966 DOWNTOWN LOS ANGELES | SACRAMENTO | SAN DIEGO | SAN FRANCISCO | SANTA ANA | WEST LOS ANGELES


Congratulates our 2018 Justice for All Honorees Pro Bono Publico Award Jared A. Smith, Esq. Fish & Richardson

Community Service Award Susan C. Groves, Esq. (Ret.) Family Law Facilitator, Manager Superior Court of California, County of San Diego

Outstanding Law Firm Award Perkins Coie, LLP

We also thank the hundreds of attorneys and law students who volunteer with SDVLP annually to help our committed staff serve thousands of San Diegans facing life–changing situations who are unable to afford the legal help they need. www.sdvlp.org

San Diego County Bar Association

Law + Technology Summit January 25 - 26, 2019 TECH

Register: www.sdcba.org/lawandtechsummit Presented by the San Diego County Bar Association and the Law Practice Management & Technology Section of the California Lawyers Association


100

LUB

EN PERC T C 2018

THANK YOU 100 PERCENT CLUB 2018 The San Diego County Bar thrives only because of the support and talents of each and every one of our members. Thank you to our “100% Club” firms, whose attorneys are all members of the SDCBA in 2018. Your leadership and dedication to our profession is truly appreciated.

Allen, Semelsberger & Kaelin, LLP Antonyan Miranda, LLP Atkinson, Andelson, Loya, Ruud & Romo Austin, Brownwood, Cannon & Santa Cruz Balestreri Potocki & Holmes Beamer, Lauth, Steinley & Bond, LLP Bender & Gritz, APLC Bernstein Litowitz Berger & Grossmann LLP Best Best & Krieger LLP Blackmar, Principe & Schmelter APC Blanchard, Krasner & French APC Bobbitt, Pinckard & Fields, APC Bonnie R. Moss & Associates Brierton Jones & Jones, LLP Brown Law Group Carothers DiSante & Freudenberger LLP Casey Gerry Schenk Francavilla Blatt & Penfield, LLP Christensen & Spath LLP Circuit McKellogg Kinney & Ross, LLP Cohelan Khoury & Singer Collinsworth, Specht, Calkins & Giampaoli, LLP Daley & Heft, LLP D’Egidio Licari Townsend & Shah APC Dentons US LLP Devaney Pate Morris & Cameron, LLP Dietz, Gilmor & Chazen, APC District Attorney’s Office Duckor Spradling Metzger & Wynne, ALC Dunn DeSantis Walt & Kendrick, LLP Epsten Grinnell & Howell, APC Erickson Law Firm APC Farmer Case & Fedor Ferris & Britton, APC Finch, Thornton & Baird, LLP Fleischer & Ravreby Fleming PC Fragomen, Del Rey, Bernsen & Loewy, LLP Frantz law Group, APLC

Advertisement

Fredrickson, Mazeika & Grant, LLP Frisella Law, APC Garmo & Garmo LLP Gatzke Dillon & Ballance LLP Gomez Trial Attorneys Goodwin Brown Gross & Lovelace LLP GrahamHollis APC Grant & Kessler, APC Green Bryant & French, LLP Greene & Roberts LLP Grimm, Vranjes & Greer LLP Haeggquist & Eck, LLP Hahn Loeser & Parks, LLP Henderson, Caverly & Pum LLP Hiden, Rott & Oertle, LLP Higgs Fletcher & Mack LLP Hooper, Lundy & Bookman, PC Horton, Oberrecht, Kirkpatrick & Martha, APC Hughes & Pizzuto, APC Jackson Lewis PC Judkins Glatt & Rich LLP Klinedinst PC Koeller Nebeker Carlson & Haluck LLP Konoske Akiyama | Brust LLP Law Offices of Beatrice L. Snider, APC Legal Aid Society of San Diego, Inc. Lincoln Gustafson & Cercos LLP Littler Mendelson PC McCloskey, Waring, Waisman & Drury LLP Men’s Legal Center Miller, Monson, Peshel, Polacek & Hoshaw MoginRubin LLP Moore, Schulman & Moore, APC Musick, Peeler & Garrett LLP Naimish & Lewis, APC Neil,Dymott,Frank,McFall,Trexler,McCabe & Hudson APLC Noonan Lance Boyer & Banach LLP Office of the Public Defender

Office of the San Diego City Attorney Paul, Plevin, Sullivan & Connaughton LLP Pettit Kohn Ingrassia Lutz & Dolin Preovolos Lewin & Hezlep, ALC Procopio, Cory, Hargreaves & Savitch LLP Pyle Sims Duncan & Stevenson APC RJS Law Rowe | Mullen LLP San Diego Unified Port District 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, APC Solomon Minton Cardinal Doyle & Smith LLP Solomon Ward Seidenwurm & Smith, LLP Solomon, Grindle, Lidstad & Wintringer, APC 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 Wilson Elser Moskowitz Edelman & Dicker LLP Wilson Turner Kosmo LLP Winet Patrick Gayer Creighton & Hanes Wingert Grebing Brubaker & Juskie LLP Wirtz Law APC Witham Mahoney & Abbott, LLP Withers Bergman LLP Wright, L’Estrange & Ergastolo


Distinctions The following individuals in our community were recently honored for a variety of achievements: Finch, Thornton & Baird, LLP partner Chad T. Wishchuk was appointed to Board of Directors of the Associated Builders and Contractors (ABC) San Diego Chapter.

Judge Tamila E. Ipema was appointed President of the National Association of Women Judges.

Janice Mulligan has been awarded Orange County Trial Lawyers Association Trail Lawyer of The Year for Medical Malpractice and Consumer Attorney San Diego’s Outstanding Trial Lawyer along with her partner Brian Findley.

Grace Tenorio was presented with the Filipino American Cultural Organization’s HIYAS Award.

Joel Selik was named the 2018 Nevada Pro Bono Attorney of the Year.

SDCBA Director of Outreach Strategy & CCO Karen Korr received the Wally E. Richter award from the Communications Section of the National Association of Bar Executives (NABE), the section’s highest honor for professional accomplishments and service.

Let's Hear It For the Bar! The team at San Diego Lawyer and the SDCBA have a lot to be proud of this year. National Association of Bar Executives Luminary Awards: Excellence in Special Projects. Excellence in Graphic Design. Excellence in PR/Marketing. San Diego Press Club Awards: First Place – Magazines – Political/Government, San Diego Lawyer – Technology & Social Entrepreneurship: How one firm uses 501©(3) status to serve the undeserved middle class. (Author: Mike Finstad) First Place – Magazines – Editorial Cartoon, San Diego Lawyer, Law’st in Place Dept. (Illustrator: George Brewster Jr.) First Place – Magazines – Drawing or Illustration, San Diego Lawyer – Attorney

Avengers (Illustrator: Attiba Royster) First Place – PR, PIO and Trade Publications – General Writing for Internal Publication, The Future Is Here in Front of Us (Author: Edward McIntyre) Second Place – Magazines – Column, Serious Subject: Open Dialogue, San Diego Lawyer – Opening Up About Traumatic Cases and Secondary Trauma (Author: Christine Pangan) Third Place – Websites, Blog – Topic Based: Blawg401 Third Place – PR. PIO Trade publications Edwards L. Bernays Mark of Merit – Public Relations Society of America (San Diego Chapter) Brochures – San Diego’s Attorney Avengers Comic Book

ADVERTISERS INDEX ADR Services, Inc...........................................30

LawPay.............................................................. 24

Pokorny Mediations............................................. 2

AHERN Insurance..........................................4

Lawyer Referral &

Richard Duquette.........................................41

Casetext..............................................................6

Information Service..........................................44

San Diego County

CaseyGerry........................................................3

Law Office of Steven C. Vosseller.......12

Bar Foundation .........................................................18

Luce Loft............................................................48

USClaims............................................................52

Monty McIntyre, Esq............................................15

West Coast Resolution Group...............21

First Republic Bank......................................8 JAMS....................................................................32 Judicate West ............................................... 43

Noonan Lance Boyer & Banach LLP........17


ADVERTISEMENT

PHOTOS: WALKING EAGLE PHOTOGRAPHY


PHOTO GALLERY EVENING IN LA JOLLA Photos by Douglas Gates Photography The San Diego County Bar Foundation (SDCBF), the charitable arm of the SDCBA, held its annual Evening in La Jolla event at La Valencia Hotel in October.

Names: xxxxxxxxxx

L-R: Jeffrey Chinn, Matthew Owens, Roxanne Carter

L-R: Sierra Spitzer, Emily Sekulic, Diane Iglesias

L-R: Jessica Roberts, James Cekola, Joanna Fox, Kaitlyn Mar, Lutfi Karuf

L-R: Brittany Dracup, Cort Koenig, Cassandra Michel

Amir Azimzadeh, Catherine Asuncion

HOLIDAYS AROUND THE WORLD The SDCBA's Committee for Diversity and Inclusion hosted its annual Holidays Around the World event on November 14, where colleagues enjoyed a variety of food and conversation.

Front L-R: Cheryl Shitabata, Erin Kilcoyne, Jill Cristich, Jennifer Berry, Marni von Wilpert, Monica Willian, Le-Mai Dam, Onu Omordia Back L-R: Noah Brazier, Danna Nicholas, Miguel Merrell, Ken So

L-R: Tarina Mand, Alvir Sadhwani, Judy Bae November/December 2018 SAN DIEGO LAWYER 49


PHOTO GALLERY BENCH-BAR LUNCHEONS Photos by Jason de Alba Attorneys and judges from a variety of practice areas enjoyed time together at the SDCBA's Bench-Bar Luncheon series around the county throughout September and October. Thank you to our event sponsors Judicate West, JAMS, Story Cloud and the Valdez Team.

Civil & Criminal Law Luncheon

Hon. Edward Sturgeon, Chiharu Sekino

L-R: Sierra Palmer, Hon. Lorna Alksne, Ronson Shamoun

Thomas Warwick, Hon. Peter Deddeh

Want to see more?

Family & Probate Law Luncheon

Lori Bolander, Rebecca Ritchey

Like our Facebook page! @sdcountybar #sdlaw Hon. Robert Longstreth, Brigid Campo

L-R: Carlos Tavares, Gail King, Meredith Levin, Clarice Barrelet

Hon. Daniel Link, Jennifer Duren

Juvenile Law Luncheon

Top L-R: Judith Klein, Julie Wolff Bottom L-R: Hon. Polly Shamoon, Karen Prosek

50 SAN DIEGO LAWYER NovemberDecember 2018

North County Luncheon


Management Partners Partners SDCBA Law Practice Management Your SDCBA membership offers offers you you aa wide wide variety variety of of member-only member-only benefits benefits and discounts discounts from from the the following following providers: providers: INSURANCE INSURANCE DISCOUNTS DISCOUNTS

INSURING INSURING LAW LAW FIRMS FIRMS ONE ONE POLICY POLICY AT AT AA TIME TIME

Preferred Preferred Provider Provider PRACTICE PRACTICE MANAGEMENT MANAGEMENT

FINANCIAL FINANCIAL SERVICES SERVICES

OFFICE OFFICE SUPPLIES SUPPLIES & & SERVICES SERVICES

LIFESTYLE

PUBLICATIONS PUBLICATIONS ®

®

WELLNESS WELLNESS

Learn Learn more more about about exclusive exclusive offers offers from from the the providers providers above above at at

www.sdcba.org/memberbenefits www.sdcba.org/memberbenefits


IT’S BEEN 5 MISSED MORTGAGE PAYMENTS SINCE YOUR CLIENT WAS INJURED.

MONEY IS TIME

They need money. You need time. USClaims gives your clients the money they need to pay bills and supplement their income while they wait for a fair settlement.

Plaintiff/Surgery Funding 1-888-497-5862 | usclaims.com/attorneys

San Diego Lawyer November/December 2018  

Small Talk: The Trials and Tribulations of Succeeding as a Solo

San Diego Lawyer November/December 2018  

Small Talk: The Trials and Tribulations of Succeeding as a Solo