San Diego Lawyer Jul/Aug 2019

Page 1

®® ® JUL/AUG 2019

ANNUAL LAW FIRM MANAGEMENT ISSUE

PLUS

Mentoring Millennials: Old and New Challenges Tips for Financial Success in a Solo or Small Firm Practice


IT’S BEEN 16 MISSED PAYCHECKS 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 (888) 496-8253

| usclaims.com/attorneys US19D04


A history of

diversity As San Diego’s oldest personal injury law firm, we understand and support our increasingly diverse community. Throughout our 72-year history, we have continually worked to reflect this culturally diverse and growing city – not only in our firm but in our support and representation of its citizens. Diversity matters – now and for our future.

www.caseygerry.com/diversity Dedicated to the pursuit of justice since 1947. SERIOUS PERSONAL INJURY, AUTOMOBILE, MARITIME, TRUCKING, AVIATION, PRODUCT LIABILITY, SEXUAL ABUSE, AND CONSUMER CLASS ACTIONS


Over 300 Years of Experience Working With Law Firms

Tamara Bartels 33 years

W. Brian Ahern 27 years

Founded in 1997, AHERN Stephen Lowe 33 years

Insurance Brokerage has become an industry leader in providing customized insurance solutions for law firms. Our professional and competent staff brings over 300 years of combined experience working solely with

Kelley Milks 28 years

Michael Davidson 32 years

law firms in brokering services,

Shawn Royle 24 years

underwriting, risk management, and claims. AHERN is part of Acrisure LLC, one of the top 10 insurance brokerages in the world and the

Sheila Denessen 18 years

Susan Kilano 22 years

fastest growing in industry history.

Tracy Podzimek 18 years

AHERN, along with Acrisure, insures over 7,500 law firms nationwide with firms ranging from 1 to 1,100 attorneys.

Experience does make a difference.

Kevin Ahern 16 years

Summer Gorsica 18 years

Gabriel Yu 14 years

(800) 282-9786 AHERNINSURANCE.com CA LIC #0K07568

Reid Middleton 11 years

ÂŽ

Randy Gust 10 years

AHERN is a Preferred Member Benefit Provider of the San Diego County Bar Association.


CONTENTS

COLUMNS

Page

18

9

PRESIDENT'S COLUMN The Marketing Umbrella by Lilys McCoy

43

LEGAL AID SOCIETY The Journey Torward Justice Begins Here by Gregory Knoll

11

DEANS Law Practice Management and Business Development by Niels Schaumann

43

WHAT TO DO WHEN? What to do when your client wants to sue you for malicious prosectution? by Daniel Hager

12

ETHICS Close Can Be Complicated by Edward McIntyre

45

WHY I BELONG Get to know SDCBA member Adam Hepburn

14

SOCIAL MEDIA Pound Sign or a Hashtag? by Tandis Taghavi

45

MEET YOUR BAR-ISTA Sasha Feredoni Publications and Content Coordinator

17

TECHNOLOGY Circle Up The Wagons by Bill Kammer

47

DISTINCTIONS AND PASSINGS

49

PHOTO GALLERY

37

MEDITATION Pathway to Mindfulness by Rick Waite

39

A VOICE ON ISSUES THAT MATTER by SDCBA

39

STATE BAR TASK FORCE SEEKS PUBLIC COMMENT by Edward McIntyre

40

LOOKING BACK Judge Hughes and the Birth of the Bar by George W. Brewster Jr.

FEATURES 18

Page

22

WILL THE ALGORITHM SET YOU FREE? California’s Bail Reform Replaces Cash Bail with Artificial Intelligence by Devinder Hans

33

FIRING A CLIENT by Deborah Wolfe

34

THE LOST ART OF COLLEGIAL WORKPLACE CONVERSATION IN THE TWITTER ERA by Anne Kammer

LAW PRACTICE MANAGEMENT

Page

37

20

MENTORING MILLENNIALS Old and New Challenges by Alison Pivonka

22

HOW TO MAKE MONEY! Tips for Financial Success in a Solo or Small Firm Practice by James D. Crosby

26

AND THIS ONE WAS JUST RIGHT: Transitioning Between Big and Small Firms by Michael G. Olinik

28

OUT OF THE ORDINARY AND EXTRAORDINARY LAW FIRM MARKETING by Jeremy M. Evans

30

GIG ECONOMY: How a Legal Advocate May Fit into the Scheme by Robert Bryson

July/August 2019 SAN DIEGO LAWYER 5



®® ®

Issue 4, July/August 2019

Co-Editors Edward McIntyre

Christine Pangan

Editorial Board Hali Anderson Elizabeth Blust Jim Crosby Jeremy Evans Seth Garrett Devinder Hans Whitney Hodges

Julie Houth Anne Kammer Hon. Duane Moring Michael Olinik Renée Stackhouse Tandis Taghavi Julie Wolff

SAN DIEGO COUNTY BAR ASSOCIATION

Director of Marketing & Outreach Ron Marcus

Issue no. 4. 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 © 2019 by the San Diego County Bar Association. All rights ­reserved. 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. 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 ™ do not necessarily reflect an official position of the San Diego County Bar Association.

Graphic Designer Attiba Royster Publications and Content Coordinator Sasha Feredoni

FOR ADVERTISING INFORMATION, CONTACT LAURA TARABINI AT (760) 415-7030 OR LTARABINI@YAHOO.COM, OR VISIT WWW.SDCBA.ORG/ADVERTISING.

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

401 West A Street, Suite 1100, San Diego, CA 92101 Phone (619) 231-0781 bar@sdcba.org Fax (619) 338-0042 www.sdcba.org July/August 2019 SAN DIEGO LAWYER 7



P PRESIDENT'S COLUMN

BY LILYS M C COY

THE MARKETING UMBRELLA here are two ways that lawyers can always put bread on their table: be good in court or bring in business. Although I am passionate about the art and science of trial advocacy, this column will be devoted to the latter. Business development is a topic of urgent importance to most lawyers, and I only have 900 words, so let’s dive right in.

T

How do lawyers develop business? How do we get people to pull out their checkbook, credit card, Venmo or payment-system-de-jour to give us their hard-earned money in exchange for our time and advice, something that is valuable but not always quantifiable? The conventional wisdom seems simple enough: develop your brand, devise a marketing strategy and deploy the marketing tactics that fit your brand and strategy. But that general guidance does not (a) encompass the unique issues facing lawyers, including our ethical restrictions; or (b) really explain the differences between and among those elusive concepts. In this article, I will outline a framework that I use to understand both. Let’s start with definitions. What is a brand? First, your brand is not your logo or your tagline. In fact, your brand isn’t even yours. It belongs to the customer and lives in the mind of your customers. (Hat tip to our wonderful new Marketing Director, Ron Marcus, for that phrasing.) When I say “Apple” what do you think? Your first notion may be of a Golden Delicious, but I wouldn’t be surprised if you thought of the tech giant. And, if you have had a bad experience with the tech giant, a negative emotion may have come to mind as well as a thought bubble with a couple of choice words. That is what marketers mean when they say that the brand lives inside the mind of the customer. Another definition of a brand is “business reputation.” We, as lawyers in the intimate San Diego legal community, certainly understand the importance of reputation. If it’s easier to think of a brand that way, then define it as what comes to mind when others think of you and your reputation. Next up: strategy. Some equate strategy with the word plan; some say that strategy forms the basis for a plan. It gets squishy and the words are often used interchangeably. I do not find any of it very helpful or actionable. According to the website

Investopedia, “Academics continue to debate the precise meaning of marketing strategy.” Yes, yes they do; and the rest of us non-academics can never quite get our arms around it. Because we’re lawyers and not marketers, let’s keep it simple. For most of us, basic marketing strategy could be a clear description of our ideal client, the legal services we offer, and the unique methods we employ as we offer those services as only we can. As with the concept of brand, let’s also identify what marketing strategy is not. It is not tactics. Making that one distinction will help a lot. Now that we have a basic definition of marketing strategy and branding for lawyers, let’s discuss tactics. A classic on marketing tactics is Guerilla Marketing by Jay Conrad Levinson. It’s simple, accessible and inexpensive. Here’s the basic premise: everything is a marketing tactic. You read that correctly: everything. Imagine an umbrella. The umbrella is big and it covers all of the marketing tactics available to lawyers, from who you are (how you present yourself, your diligence, your integrity, your way with clients) to the quality of your work, to the level of customer service you provide, to your responsiveness and promptness. Marketing also includes networking at bar association events, involvement in trade associations, writing, speaking, social media, website design, blogging, search engine optimization, referral networks with other professionals, curating a YouTube channel, print advertising, TV commercials, etc. Whew! Sounds like a lot? That is only a small fraction of all the marketing tactics available to the 21st century lawyer. Notice that advertising and networking fall under the marketing umbrella; that’s because they are easier understood as marketing tactics. In other words, it’s not “marketing and networking” or “networking and advertising.” It’s all marketing, and you just need to choose which marketing tactics you wish to deploy to reach and attract clients. Looking at marketing tactics broadly also helps lawyers manage ethical risk and cost. Imagine the outline of the marketing umbrella as representing a spectrum. On the left side of the umbrella, let’s put all the relatively safe and inexpensive marketing tactics: the quality of your work, your bedside manner, the excellent customer service you provide. Note how those do not cost any out-of-pocket dollars.

Plus, they are ethical in and of themselves and a hedge against malpractice claims. Bonus. Add networking, writing and speaking — again not very expensive or ethically risky — and you may find you never even need to reach the more expensive and ethically risky forms of marketing tactics, such as direct mail and other forms of paid advertising, that reside on the other end of the marketing spectrum. When you think of marketing tactics as living under an umbrella that covers the entire spectrum of marketing, you can envision the handle as formed by the words “know, like and trust” because ultimately that’s what all the tactics should lead to: the vaunted know-likeand-trust factor. As marketing expert John Jansch says in Duct Tape Marketing: “People want to do business with people they know, like and trust.” In other words, your marketing tactics should lead to the maximum number of people coming to know you: you are a lawyer and you represent people who (fill in the blank); like you: you’re easy to deal with, responsive, approachable; and trust you: you do high-quality work, your customer service is outstanding, and you are accessible and prompt. How do we put these concepts into action? Again, let’s keep it simple: an easy marketing plan formula is tactics plus time. Because lawyers live and die by their calendar, this should be familiar ground. Choose your tactics and put them on your calendar. Tactics like great customer service and quality work would be calendared every day. Tactics like networking might be once per week. Write an article might be once per month. Speak at a community event might be once per quarter. Fortunately, the San Diego County Bar Association provides its members with ample opportunities to deploy many of the marketing tactics discussed in this article. Our robust sections allow for networking, speaking and writing. Committee and Board service are avenues for getting other lawyers, whose client base may need your specific skill set, to know, like, and trust you. As you read this edition of San Diego Lawyer, I hope that you will consider ways that you can get involved and, at the same time, deploy a few marketing tactics that will help your career flourish and put bread on your table.

July/August 2019 SAN DIEGO LAWYER 9


William (“Bill”) Wheatley—Mediator

Dedicated to helping individuals and businesses resolve conflict and move forward in their lives through effective and creative solution-based services. Areas of Mediation:

Wheatley

• Personal Injury • Products Liability

Mediation Services

• Public Entity Claims • Business & Commercial Disputes • Contractual Disputes

Serving San Diego & Orange County

• Corporate, Partner and Member Disputes • Employment Disputes

(619) 987-9575

|

www.wheatleymediation.com

|

email: bill@wheatleymediation.com


BY NIELS SCHAUMANN

Niels Schaumann

DEANS D

LAW PRACTICE MANAGEMENT AND BUSINESS DEVELOPMENT

“Doing well by doing good.”

service programs, legal aid organizations, the courts and government agencies,” says Lab.

Every freshly minted lawyer would do well to follow that principle. California Western graduates are well-versed in this during their three years in law school with the possibility to intern at the California Innocence Project, Community Law Project and other notable clinics, which epitomize the law school’s award-winning dedication to community engagement.

Current ALI attorney Taylor Darcy, who graduated from California Western in 2017, acknowledges the invaluable support that the program has provided him. “ALI allowed me to go from being practice-ready straight out of law school to actually practicing. I have been able to help so many people that I otherwise would not have been able to without the help of the ALI program.”

California Western’s commitment to its students doesn’t end after graduation, as the school offers an incubator program to help graduates follow the path to solo or small firm practice. This program, California Western’s Access to Law Initiative (ALI), encapsulates the “Doing Well” principle by providing tools and training to empower entrepreneurial and public service-minded alumni to make a living while making a difference. ALI provides members with critical training and post-graduate education on essential topics including marketing, timekeeping, billing and collecting fees, accounting and taxes, and the ethical issues and legal requirements related to solo and small firm practice.

When asked about her ALI experience, alumna M. Viviana Oropeza, who just celebrated her first year of practice, praised the leadership of Lab and said it was “worth its weight in gold.” Between August 2016 and December 2018, ALI held 64 clinics. The program’s attorneys provided free legal services during almost 500 client consultations, many dealing with landlord/tenant issues and family law. Lab, who also serves as California Western’s Director of Professional Development, says, “Through practicum coursework and incubators, law schools can introduce new and emerging law practice models

and technology that enable the efficient delivery of legal services to an expanding client base across the financial means spectrum.” Lawyers who leave ALI after developing their practices (usually a period of 18 months) are then engaged as mentors to new entrants to the incubator, growing participants’ network of contacts and increasing their professional support. When students graduate from California Western, they begin a lifelong relationship with the law school, and the ALI program is a significant step on that journey as the prospect of opening up a solo practice becomes a realistic option. All CWSL graduates are encouraged to apply to the program. Making a difference is what California Western is all about, and our ALI attorneys demonstrate this as they embark on their careers and build their business. Niels Schaumann is President and Dean of California Western School of Law.

The program’s goals are two fold: 1) assist new solo attorneys with launching and building successful legal businesses, and 2) provide pro bono and affordable legal services to underserved populations within the greater San Diego community. ALI’s Director Matthew Lab calls it a win-win situation. “Essentially, ALI provides the tools and training to prepare alumni to manage a law practice and develop it as a business while at the same time giving back to underserved communities.” “Many of our clients are minorities, and a lot are of low-to-moderate income. They are referred to the program from partner social July/August 2019 SAN DIEGO LAWYER 11


E ETHICS

BY EDWARD McINTYRE

CLOSE CAN BE COMPLICATED S

arah and Duncan waited at Macbeth’s door.

“Please, come in. Meet Tim. He has some interesting questions for us.” With all seated at the conference table, Macbeth nodded. “Tim, you have our attention.” “A long time friend from college and law school has this tech company. He’s CEO. I’ve been working this relationship for years. Anyhow, he just hired me as his outside general counsel. Also, secretary to the Board. Means our firm will get just about all his legal work. A lot.” Duncan smiled. “Your effort paid off.” “It’s taken a while. Anyhow, I hear there’s new ethics rules. Thought I’d ask if any applied.” Sarah suppressed a smile. Macbeth had a question. “Have you represented your friend individually?” “Of course. That’s how it began.” “Do you think that will continue?” “Hope so. I’m not doing this to lose business.” “Fair point. Is your friend the sole owner?”

He turned to the text; she continued. “It requires each client’s informed written consent when one client’s interest is directly adverse to another’s in the same matter. Or a separate matter. Nothing new.” Tim shrugged. “But it also requires informed written consent when there’s a significant risk the lawyer’s representation of one client will be materially limited” — air quotes to stress the words — ”by responsibilities to or relationships with” — here she ticked the categories off on extended fingers — ”another client; a former client; a third person; the lawyer’s own interests.” Macbeth spoke. “Let’s pause and consider your new relationships. First, your friend and his company are not adverse to each other? Or any of the investors?” “Of course not.” “Nor to any client your firm represents? Or represented?” “Nope.” “Good. That clears the first hurdle. Next step. You and your firm have one client — your friend. A second client — the company. Third, you’ll be Board secretary. So, you’ll

owe the company a separate fiduciary duty in that role.” “OK. But everybody gets along. For the most part.” “Wonderful. But does this matrix of relationships create a significant risk that representation of your friend, for example — or the company — will be materially limited by your responsibilities to the other one?” Macbeth paused. “What happens, for instance, if most of the other investors want one thing? Your friend wants another? How can you advise the Board? And at the same time your friend? In addition, you have a separate fiduciary duty as secretary.” “But it’s all theoretical. None of this has happened. Besides, getting this business is a big deal.” “Tim, slow down. Nobody said you couldn’t. The rule just says you need each client’s informed written consent before you do.” “What’s that mean?” “It means explaining to each client — your friend; the company; perhaps the other investors — the facts and the material risks. Actual or reasonably foreseeablE adverse consequences of the joint representation. And then get informed written consent.”

“Has a few investors. But he’s got effective control: 40%.” “Fine. Let’s see what we have. Your friend has been and will be a client. His company will be a client. You will be Board secretary. Any other relationships? Investor perhaps?” “Not yet.” Macbeth turned to Sarah. “Let’s start with the conflict of interest rule.” Sarah handed Tim the blue-covered rule book. “Rule 1.7, the current clients conflict rule, is new for California.”

CARTOON BY GEORGE W. BREWSTER JR. 12 SAN DIEGO LAWYER July/August 2019


“In practical terms?” “Tell them the company’s interests and your friend’s may become adverse. If that happens, your firm cannot advise both — maybe even either. If neither, each will have to get separate counsel. If you can still represent one, which client you’ll represent. Which client will have to get separate lawyers.” “They have to go through this now?” “Better than in the heat of the moment. Besides, these are foreseeable risks of the joint representation. Then, there’s the issue of you being secretary.”

“Yes, for reasons I’ll ask Sarah to explain in a bit. Let’s stay with the conflict rule. Informed written consent includes your role as secretary. Telling everyone you may have to withdraw should a conflict arise. Because of your personal relationship with the CEO.” “Maybe the company won’t like that idea.” “That’s why the rule requires informed consent — in advance.” “Any more? This new rule doesn’t make things easier.” “There’s more. But we’ve covered enough for now.”

“What’s that have to do with it?”

Tim nodded.

“As secretary, you owe the company a separate fiduciary duty. If a situation arose, for example, a conflict between your friend and the company. And the company elected to get separate counsel. Your firm represented your friend, the CEO. How could you fulfill your fiduciary duty to the company when your firm represented a person with an adverse interest?”

“I agree with you on one point. ‘Material limitations’ — arising out of a whole spectrum of relationships — far beyond just clients and former clients — will require more sophisticated judgment. More data for conflict checks.”

“You mean the ethics rules apply to me as secretary?”

“A lot more chances to screw up, if you ask me.”

Editorial Note: Sarah explained Tim’s fiduciary duty as secretary and the Rules of Professional Conduct. The State Bar Court, In the Matter of Schooler (Review Dept. 2016) 5 Cal. State Bar Ct. Rptr. 494, 503, rejected a lawyer’s contention that the rules did not apply to her — serving as trustee for a family estate, not acting as a lawyer. “The law is clear that even if Schooler was not practicing law, she was required to conform to the ethical standards required of attorneys …. An attorney who breaches fiduciary duties that would justify discipline if there was an attorney-client relationship may be properly disciplined for the misconduct. [citations omitted.]” 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. Edward McIntyre (edmcintyre@ethicsguru.law) is a professional responsibility lawyer and co-editor of San Diego Lawyer.

“Likely that, too.”

O U R E XP E R I E N C E D N E U T RA L S

Our Resolve. Your Resolution.

HON. DONALD F. ARMENTO, RET. DOUGLAS BARKER SHAUN BOSS JUDY COPELAND JOHN EDWARDS

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.

RALPH HUGHES CHRIS HULBURT RICHARD HUVER TIMOTHY RILEY KRISTIN RIZZO 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


S SOCIAL MEDIA

BY TANDIS TANDIS TAGHAVI TAGHAVI BY

POUND SIGN OR A HASHTAG? hile vintage billboards cost thousands of dollars and only attract a few-second glances by some highway drivers stuck in 5 p.m. traffic, Instagram posts can go viral in half a second … and for … free. Yes, that’s right, for … F-R-E-E.

W

NO MONEY? NO PROBLEM On October 6, 2010, Instagram was born. In the last nine years the app has attracted the attention of 77.6 million people in just the United States alone! Do you know what that means? Yes, yes, millennials are obsessed with the internet; but it also means that BILLIONS of pictures and videos are posted, liked, commented on and shared every minute of the day. Why does this affect you? Well, how does it not?! As the platform for advertising and marketing drastically continues to change, social media sites like Instagram are being relied on to capture the latest and greatest around the globe.

THE TRICK? You might be wondering how is it possible that an app can consume and retain the full attention of millions of people across the states? I mean, seriously, doesn’t anyone work around here? The answer is simple: Instagram is glued to your palm. Ever pull up to a red light? Does it seem like it’s taking forever to turn green? While you were driving didn’t you hear your phone chime ring? Was it a notification? Who was it? Your boss? Client? Wife? Husband? Kids? Nanny? Mom? Dad? Brother? Sister? Uncle Phil? Aunt Becky? Does the suspense only add friction to your fighting the urge to not check your phone while you’re painfully 14 SAN DIEGO LAWYER july/August 2019

waiting for that red light to turn green? What about at a stop sign? Or how about when you’re perfectly wedged between the infamous snail mobile (a 2002 red Toyota Prius) and a ginormous yellow tank with 18 wheels traveling at exactly zero mph in standstill rush-hour traffic? What’s the driver in the snail mobile to your right doing? (Besides plotting ways to make you extremely late). What about the driver in the tank to your left? Or the Tesla behind you? Ever simultaneously walk and text someone? Walk and email? How about walk and Instagram? Do you keep your phone off during the day? (Yeah right.) Then perhaps you leave it on silent and tuck it far, far, away and deeply hidden in your pockets? (Ha). Or is the reality of our obsession with technology such that our phones are clenched so firmly between our fingers that our knuckles are white. Let’s face it, not even Thor could pry your fingers off with a crowbar (and now thanks to Face ID, he can’t unlock your robot phone either). That thing is glued to your palm. I know it, you know it, Thor knows it, Instagram loves it, and society buys it. So, why are we so attached to our phones? Is all this for pleasure, fun or business?

STORYTELLING Why has Instagram become an obsession? Simple: Instagram provides a platform for people to tell their story. Although everyone wants to feel engaged and connected with others, we would much rather spend our nights eating pizza and watching Black Mirror for the fifth time than go to some networking event only to shake 32 sweaty palms, hang out by the crab puffs and maintain a fake

smile until either your cheeks fall off or the free alcohol numbs your stiffness. The morning after is just as terrifying as you begin to shift through the swamp of scattered business cards like it’s a never-ending jigsaw puzzle or a bad game of guess who. However, with Instagram you can connect with and discover many friends, friends of friends, family members and even strangers that share the same passions and interests as you … and you can do it within seconds. The art of storytelling began before anyone knew how to read and write. It is and has always been a fundamental part of our society and culture. By giving users free range over their profiles, stories and pages they choose to follow, Instagram creates a unique and tailored experience for everyone. The greatest limitation to colorful billboards and fancy website advertisements is the lack of flexibility and immediate gratification or result. Thus, the principal advantage of Instagram is that the user has total and complete power. Power to market, power to advertise, power to tell a story in a first-person narrative, power to choose their own voice. Users log into Instagram daily to check what’s new. For hundreds of thousands of people, Instagram is the first thing checked when that 5 a.m. wake-up siren startles your nervous system and the last thing browsed as you snore off into a temporary coma.


INSTAGRAM FOR BUSINESS FAQS How can I use Instagram to market my firm? #HASHTAGS! Posts that include another tagged person (aka their “handle”) gain 56% more traffic while posts with at least one #hashtag gain about 13%. 1

What are #hashtags? Like the pound sign? No, no, I’m not talking about the thing you press on your keypad when you’re done recording your message. What I’m talking about is just as powerful as Thor’s hammer. A #hashtag is like a key word or phrase that will make your content easier to find.

Let’s say I include “#attorney” on a post. Then what? Users who don’t follow you (and therefore can’t see your post) can still discover your post! For example, users can type “attorney” into the search box for tags and discover your content. Simply by adding this one

#hashtag, the probability of your post being seen by a potential follower or even client has increased.

Can I use my own #hashtags? YES! Welcome to branding! You can certainly promote your own branded #hashtags and have clients include them on their posts! This will not only encourage interactions between your clients and your firm, but also your followers, their followers and other strangers will see these positive interactions as well.

What are some common #hashtags I should use as an Attorney? #TrialAttorney #LawyerLife #LawyerProblems #CourtroomLife #CourtsInSession #LawFirmGoals #PersonalInjuryLawyer #InnocentUntilProvenGuilty #FamilyLaw

1. https://www.brandwatch.com/blog/instagram-stats/

Things I should post? Funny memes and quotes related to your field of practice are always a good option. Or even pictures of your team doing something fun or interesting (i.e., volunteering, team bonding, cookouts).

Things I shouldn’t post? Pictures that scream hire me and my firm. Everyone can smell desperation from miles away. Remember, no one likes a stage five clinger. Also be careful about posting pictures of your client with a detailed description of their case (remember those MRPC rules). Finally, while #hashtags are great, a lot of anything is always overkill. Tandis Taghavi (ttaghavi@law.cwsl.edu) is a law student at California Western School of Law.


THE BEST LEGAL PARTY IN TOWN Join us for Great Food and Drinks, Mingling, Live Music and Sunset Views

Saturday, September 28, 2019 6-10pm at La Valencia Hotel sdcbf.org/elj2019 | (619) 231-7015 Ticket Prices:

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

Presented by:

A Benefit that Supports San Diego Legal Charities


T TECHNOLOGY

BY BILL KAMMER

CIRCLE UP THE WAGONS rior columns have stressed cybersecurity in our offices and homes. We’ve touched on a variety of subjects including passwords, encryption and various devices or applications to present the best defenses against the exploits of cybercriminals. Reports of breaches and exploits continue to appear with increasing frequency. There are far too many bad actors and far too many methods they can employ to damage or obtain our confidential information or our money.

When offered, resist the offer of a merchant or application to allow use of our Facebook or LinkedIn credentials to log in to another site. Sounds like an attractive way to avoid having to remember another login or password.But don’t do it because Facebook and LinkedIn will track our behavior and shopping at those other locations and then sell that additional data to their own customers. And, in exchange, the third-party sites can harvest the data and information we may have posted on the social media sites.

This recent headline is a good example: “Personal Information and Financial Data Was Hacked from Almost 20,000,000 Patients of LabCorp and Quest.” Another headline alerts us to “Six Security Scams Set to Sweep This Summer.” The confluence of these events and warnings has produced a cybersecurity funk. I’ve concluded that it is time to circle the wagons, recognizing that it’s not a question of when our accounts, offices or finances will be compromised, but only a question of when and how great the damages. So let’s engage in some defensive strategy planning.

We could cease shopping online, but today, that’s an unlikely decision anyone would make. Again, we can minimize the information left behind for hackers to target at a merchant’s location (think Target as an example). Begin with several behavioral changes. First, stop storing credit card information on any merchant’s site. That option is generally available. Second, when possible, buy as a “guest” rather than establish an account. That way you leave less personal identification information in the hands of the merchant.

P

These thoughts all build on the base assumption that anything ever saved online will inevitably fall into the hands of cybercriminals. With that in mind, let's adjust our online behavior to limit the value of that information. Hopefully we’re all now using robust passwords and saving them in a reliable password manager. And by now, we should be using twofactor authentication (“2FA”) wherever available or possible for any account that contains financial information and even for lower-level accounts such as Gmail.

Merchants and financial institutions often ask for answers to security questions as an aspect of verifying our identity. Advice in recent years has trended toward simply lying and making up fictitious answers. Assume that our biographical information is everywhere on the Internet and realize that it probably has a half-life a little greater than uranium. Though we may prudently avoid posting much personal information, leave it to a young relative to casually annotate family history with photographs and remembrances posted on a variety of social media sites. So when you’re asked your mother’s maiden name, consider responding “Minnie Duck.” When asked where you were born, lived in while in the eight grade or where you were

married, try “Slovakia” or “Pluto.” We should use our imaginations to come up with many similar examples and responses. In the same sense, many commentators suggest that we never post our headshots on a site and use instead a distant shot, a pet’s photo or some other image. Unfortunately for lawyers, it’s hard to avoid the reality that our photos are all over the internet. Just go to Google Images and search on your name. You’ll probably find a variety of photos culled from the pages of our law schools, our offices, our professional associations and our MCLE providers. If someone wants to use our headshot to facilitate an identity theft, it’s probably too late to bar that door. Finally, take advantage of some internet tools to watch for possible compromises of names and Social Security numbers. You can set up a Google search on your name and the names of your family members, and on any Social Security number. Then ask Google to save that search and send you an alert if those search terms ever appear in Google’s constant crawling of the internet’s multitude of websites. Adjust the frequency of their email alerts if they occur too frequently. Implementation of all these techniques and devices will never stop the inevitable hacks, but they will minimize the damage and even provide early warnings that would allow preventive measures that avoid the most disastrous outcomes. Bill Kammer (wkammer@swsslaw.com) is a Partner with Solomon Ward Seidenwurm & Smith, LLP.

July/August 2019 SAN DIEGO LAWYER 17


CALIFORNIA’S BAIL REFORM REPLACES CASH BAIL WITH ARTIFICIAL INTELLIGENCE By Devinder Hans

M

oney bail has come under increasing criticism for being an imperfect mechanism for ensuring that defendants appear for trial, and reflecting an inherent economic bias against those too poor to post bail. However, legislation eliminating bail, including the reform act recently passed in California, have made algorithmic risk assessments a key component of pretrial detention decisions.

A SHORT HISTORY OF BAIL Although use of bail has been traced back to ancient Rome (293 BCE), the U.S. system’s roots originate in medieval England. Beginning as a hostage arrangement (the third party taking custody of the accused agreed to be punished in their place if the accused absconded), bail later developed into a surety system (where a specified amount is forfeited). The commercial bail 18 SAN DIEGO LAWYER July/August 2019

industry, which today only exists in the U.S. and the Philippines, was founded in San Francisco at the end of the 19th century by two brothers working out of their father’s saloon. In commercial bail, the bondsman is paid a premium from the accused in return for putting up the security. Much like today, the first wave of bail reform in the 1960s also sought to address concerns that many suspects were jailed while awaiting trial only because they could not afford to post bond. This culminated in the federal Bail Reform Act of 1966 which encouraged judges to release defendants (other than those accused of capital offenses) on their own recognizance unless they were considered a flight risk. Judges were allowed to impose any necessary conditions, including requiring execution of an unsecured appearance bond, a surety bond or cash deposit.

In the wake of the federal reform, some states revised their bail laws to parallel the federal scheme while others, such as Illinois, Kentucky, Wisconsin and Oregon, also prohibited commercial bail entirely. Many states and the District of Columbia also created pretrial-services agencies, which gathered information about defendants and provided release recommendations. Some pretrial-services agencies also connected defendants to drug-treatment programs and other services to alleviate underlying issues that contributed to their arrest. A second reform wave in the 1970s and 1980s sought to address public safety concerns resulting from rising crime rates. Congress (with the Federal Bail Reform Act of 1984) and state legislatures responded by strengthening preventive detention of defendants deemed particularly dangerous.


Today’s third reform wave gained momentum this decade and has generally involved requiring release for minor nonviolent crimes and replacing cash bail with a combination of preventive detention and use of predictive risk assessment algorithms. However, certain crimes, especially those involving violence or related to firearms, are usually categorically excluded from any risk assessment and pretrial detention is mandated.

CALIFORNIA’S BAIL REFORM STATUTE On August 28, 2018, Governor Jerry Brown signed the California Money Bail Reform Act (SB 10) into law. Originally planned to go into effect on October 1, 2019, a referendum to overturn the statute qualified for the ballot and its fate will now be decided by voters in the November 3, 2020 election. SB 10 replaces cash bail with a riskbased system. Monetary conditions of release are prohibited. Instead, those charged with certain misdemeanors are released within 12 hours of booking without seeing a judge, while the rest are assessed a risk score by a validated “risk assessment instrument” (from a list of validated tools maintained by the California Judicial Council). The risk score reflects the algorithm’s assessment of a person’s likelihood of re-arrest or failure to appear by comparing the defendant’s circumstance and characteristics with other similar suspects and their outcomes. Pretrial Assessment Services (PAS) is required to produce a report considering the risk score, the criminal charge, supplemental information and input from the victim. With certain exceptions, individuals assessed to be low-risk and medium-risk to public safety and of failure to appear in court are to be released with "the least restrictive nonmonetary condition or combination of conditions that will reasonably assure public safety and the person's return to court.” Individuals assessed to be highrisk will be detained until arraignment. However, the risk assessments are not binding on the adjudicating judge. Additionally, the prosecutor may file a motion for preventive detention of the defendant under specified circumstances.

THE ROLE OF AI Risk assessment tools are key components of most bail reform legislation to determine who should be released and who should be detained pretrial. Some forms of offender risk assessments have been conducted for almost 100 years, including use of statistical methods later in the 20th century. What sets the newest methods apart is the incorporation of machine learning techniques. Machine learning involves parsing large datasets to identify patterns and develop predictive functions. Although much simpler than most modern AI systems, these computerized algorithms take data about the accused, compare it to historical data about how other people with similar characteristics behaved, and generate a statistical probability that the accused will commit a new crime or miss a court appearance. The statistical probability is usually provided as a number score corresponding to a risk level (low, medium or high). The risk level results in a recommendation to detain, release or release with conditions, such as pretrial supervision and monitoring. One pretrial risk assessment system, the Manhattan Bail Project (now the Vera Institute), began as an experiment in 1961 comparing New York City judges’ pretrial release decisions against the project’s recommendations. Over three years, 3,505 defendants were released without bail on the Project’s recommendations and only 1.6% of them failed to appear for trial for reasons within their control. Today, the Vera Institute is joined by a number of other systems. The Correctional Offender Management Profiling for Alternative Sanctions (COMPAS), developed by Equivant (formerly Northpointe), works through a proprietary algorithm that considers some of the answers to a 137-item questionnaire. The Public Safety Assessment (PSA), developed by Arnold Ventures (formerly the Laura and John Arnold Foundation), does not require a personal interview and takes information entirely from the accused’s criminal history. The factors considered vary among the algorithms but may include age at first arrest, prior “failure to appear” warrants, prior convictions, employment status, drug abuse history, whether the present charge or past convictions involved violent offenses, and residence status and location.

Proponents of algorithmic risk assessments contend that the tools produce more consistent and accurate risk scores as well as potentially mitigating judges’ personal biases and overt or unconsciously discriminatory decision-making. However, critics question their reliability, lack of transparency and objectivity. The risk score’s reliability depends on the accuracy and completeness of the data as well as correctness of the relative importance placed on the various factors employed. Additionally, algorithms developed by for-profit vendors are proprietary and not subject to public review. Most significantly, critics question the algorithms’ objectivity, contending that the systems often incorporate biases expressed in their underlying dataset. Even if the algorithm does not rely on a particular characteristic, such as race, gender or economic status, it can incorporate bias related to that characteristic based on proxy factors. Proxy factors are valid features that are highly correlated with other protected attributes. For example, Amazon designed a system to evaluate job applicants but discovered that the software reflected a bias against female candidates. The algorithm was trained on 10 years of hiring data and, although it did not consider gender, it had learned to favor word patterns more commonly found in men’s applications and disfavor those more commonly found in women’s applications. Similarly, a risk assessment algorithm is only as valid as the data on which the tool is based. Bias, whether racial or otherwise, can arise from employing training datasets that are unrepresentative or incomplete or reflect historical inequalities.

CONCLUSION Bail is an imperfect mechanism for freeing an accused (who is presumed to be innocent) while ensuring appearance at trial and protecting public safety. Algorithmic risk assessment is a similarly imperfect mechanism for predicting future behavior that requires continued validation and calibration to ensure reliability and impartiality. Ultimately, defining risk is subjective and policymakers must evaluate risk thresholds and balance the presumption of innocence and public safety. Devinder Hans is an attorney at law.

July/August 2019 SAN DIEGO LAWYER 19


LAW PRACTICE MANAGEMENT

M

ENTORING ILLENNIALS:

Old and New Challenges By Alison Pivonka 20 SAN DIEGO LAWYER July/August 2019


LAW PRACTICE MANAGEMENT

A

ccording to a study released in May 2019 by the San Diego Regional Chamber Foundation, “Millennials at Work: The Purpose-Driven Generation,” what millennials desire most in their new careers — second only to a purpose-driven organizational culture — is “support with coaching and professional development.” This can mean different things to different people, but in the legal profession it centers on very traditional ideas of mentorship.

emphasize mobility and personal fulfillment above loyalty. Indeed, the Chamber study reports that over half the millennial employees surveyed are thinking of leaving their jobs in the next six months, acknowledging that the perception of millennials’ “willing[ness] to job hop” is not without factual basis. A lack of committed training, however, may itself pressure a young practitioner to move on and make this reluctance a self-fulfilling prophecy.

With the retirement of more and more baby boomers, millennials have become the largest segment of the American workforce and nearly 40% locally. Many lawyers in this age cohort, newly admitted to the bar, are beginning their practice while others are arriving on the cusp of true independence and partnership.

Don G. Rushing, retired co-chair of Morrison & Foerster’s litigation department, now consults and teaches trial advocacy skills. He acknowledges these pressures and believes many are not new, but emphasizes that associate training is mission critical. Firms, he says, impliedly agree with new associates and clients alike to train and educate their young lawyers in the practice: “Part of the value proposition is that we hire the best and the brightest, and we give them the best possible training.” Cutting training short because it diverts from client service — or, for young lawyers, cuts into their billable hours — he says, is “extraordinarily shortsighted.” While training frequently takes the form of seminars and in-house group training, Rushing nonetheless emphasizes that the role of real one-on-one mentorship is as important as ever.

Since the early days of practice, where joining a firm roughly equated to signing on for an apprenticeship, the marketplace has changed dramatically and the very foundation of mentoring in many fields has been put to the test. Even before Sheryl Sandberg jumped into the discussion in her 2013 book Lean In, where she went so far as to title a chapter “Don’t Ask Anyone to Be Your Mentor,” the principles of what this relationship means to a new generation, and a new economy, have been the subject of debate. There is no serious controversy that the apprenticeship style of mentoring is now the exception rather than the rule in our profession. Increasingly emphasis is on the “a la carte” approach of identifying and serving specific training needs, rather than the formation of a one-on-one relationship in which an accomplished senior practitioner molds and counsels a junior colleague over a period of years. The pressures of efficiency, productivity, value delivery and time-based billing all contribute to remaking what was once a straightforward, if one-size-fits-all, transition into the practice. This presents a challenge to firms and their senior lawyers, who can find it harder to justify the value proposal of one-on-one training in a dynamic economy. Some wonder openly whether investing in training is practical in an environment where younger attorneys frequently

Despite both the new and the perennial challenges of providing it, the idea of what good mentoring is has not changed. “Everyone understands what coaching is,” notes trial lawyer Deborah Wolfe, who devotes an increasing share of her own practice to mentorship. "It’s a necessity. And, it’s a service to the community.” It is not a matter of instruction alone. Skill development, she says — for example, teaching young practitioners how to build professional relationships with others — “cannot be done online.” This requires time and personal interaction, and an understanding of the individual needs and strengths of the young practitioner; in a word, a productive relationship with a mentor. Millennials desire this type of relationship as well. According to the Chamber study, they cite “ongoing feedback, clear goals, transparency and collaborative goal setting” as necessary to their new careers.

In Rushing’s view, this goes to the very heart of associate training: “A critical part of it is spending time together across the desk and taking the time to discuss how the assigned work fits into the overall strategic plan, as well as the specifics of work product and delivery.” Collaborative goal setting, Wolfe points out, is a key aspect of good mentoring: “Coaching to the concerns” of younger practitioners — in effect, giving them say in setting the agenda and strategizing with them — provides immeasurable benefit. Delivery of training and mentorship, particularly outside the more structured setting of a large firm, requires shared responsibility between senior and junior attorneys. “We need,” Wolfe emphasizes, “to take a flexible approach to making sure these resources are available to the next generation of practitioners.” This flexibility can include retaining an outside professional mentor and coach — either by or on behalf of the junior lawyers — seminars and targeted training, simply spending time in a courtroom watching oral argument, or volunteering time serving the indigent, where experience comes quickly. Observing what makes a good professional, aggregating those observations, and swapping notes with peers is a tried and true way to grow as a practitioner. “My advice to junior lawyers has always been to think of yourself as a business,” says Michael Whitton, former managing and hiring partner in the San Diego office of Troutman Sanders. “Write a business plan. Where do you need help? The role of the mentor is to see that you get that help.” Investing in oneself first, he points out, makes younger lawyers better consumers of their own training and development. “I am still learning on a regular basis, devoting my own time to becoming a better practitioner,” he notes. “Young lawyers need to develop the habit of investing in themselves.” Alison Pivonka (pivonkaesq@gmail.com) began her practice as a trial lawyer in 1991 and provides mentorship and counseling to developing associates and mature practitioners looking to breathe new life into their work. July/August 2019 SAN DIEGO LAWYER 21


W

e lawyers are privileged to do interesting, significant and challenging work for the benefit of others. But we also need to make money to pay our bills, support our families and do the things we want to do — money to sustain our personal lives. So, we must figure out how to turn this interesting work we are privileged to do into a sustained flow of money that allows us to continue to do this interesting work we are privileged to do. Despite the public perception of lawyers rolling in dough, turning the practice of law into a profitable business, at least for a lot of lawyers, and especially young attorneys striking out on their own, is not always that easy. Last year, I published an article here providing “Tips for Solo Success.” With this article, I narrow my focus to provide tips for financial success as a solo or small firm.

HOW TO MAKE

MONEY! Tips for Financial Success in a Solo or Small Firm Practice By James D. Crosby

22 SAN DIEGO LAWYER july/August 2019

To sustain any degree of long-term financial success, lawyers must run their legal practices like businesses. Fee arrangements with clients must be business deals with well-understood risks and benefits, and off-ramps for both sides if terms are not met. Lawyers do provide services guided by professional and ethical responsibilities. Requiring clients to meet their fee obligations, running efficient practices and turning good profits are not inherently at odds with those professional and ethical responsibilities. One can always choose to stay in a case too long for a non-paying client, or cut one’s fees to get a case, or make any number of bad business decisions in furtherance of case, cause or client. Sometimes, you just can’t walk away from the case, or the new client who can’t pay full freight really needs help and you can’t say no, or you just hang in with a slow-pay client because you like the guy and believe he will get you current in six months. We are all people driven by emotions, perceptions and impulses, good and bad, and not always by the calculated need to make money. But one needs to make those types of decisions fully understanding the likely ramifications and not with pie in the sky hope it will all work out. Run your practice like a business based on thoughtful, deliberate decision-making. That is the key to long-term success. Here are some tips to help you do just that and to help you find financial success in your practice:


LAW PRACTICE MANAGEMENT

1

Set Market Rates and Hold to Them.

This is, at times, a hard lesson to learn. Discounting your rates or fees 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. Your attorney time is valuable. It has a market value. Investigate the market, determine what your rate/fee should be and then stick to it. Discounting your rate/fee 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.

2

Get Fee Agreements.

Needless to say, you are required to do so in most instances under State Bar Rules. So, there’s that. But fee agreements are also just good business. They provide, in black and white, the obligations and expectations of both attorney and client. They set forth in detail how the attorney will be paid, how her fee will be calculated, and the ramifications of nonpayment. It provides exit points for attorney and client under articulated circumstances. It is the source and basis for any successful enforcement effort in the event the client breaches. Further, negotiation and execution of the fee agreement requires both attorney and client to reflect on the seriousness of, and significant obligations arising from, the to-beundertaken work. It’s easy to say I want to sue so-and-so for this-and-that. It requires more thoughtful reflection when to actually sue so-and-so for this-and-that; one has to sign a fee contract with significant financial commitments and pay a retainer. And that is as it should be!

3

Require Replenishing Retainers.

Require a retainer in every case and the replenishment of that retainer if it falls below a predetermined level. If a prospective client cannot, or will not, provide a retainer, then that client is likely not serious about sustaining, has no idea what it costs to sustain or will not be able to sustain, the financial burden of the matter going forward. Set a fair minimum retainer on all your cases. Modify upward dependent on the nature and scope of the case. Tell prospective clients you have a minimum retainer on all cases and let them move on if they cannot meet that retainer. Don’t negotiate below your minimum retainer or, if you do, do so with the clear understanding that it is not a wise business practice. The replenishment requirement, if enforced, allows the attorney to remain current and above water in a matter on an ongoing basis. If the client does not meet the replenishment requirement, one can withdraw without getting significantly underwater on the fee. Plus, assessing and setting a fair retainer in a case requires the attorney to seriously consider and assess the nature, scope, cost and financial risk of the prospective matter. A “sign them up, worry about the fee later” approach to client generation is not good business.

[FOR LITIGATORS ONLY]

3.5

Get Trial Deposits!

If you’re not a litigator, you can move to #4. For litigators, seriously consider including a provision in your fee agreement that allows you to increase the retainer size as you move toward trial or other significant case events. Litigators are most at risk, financially, as cases ramp up for trial. The work,

the fees, the costs increase, oftentimes explode, outpacing retainer levels set early in the case. Then, post-trial, one finds oneself in deep to a client, with a concluded matter, and a client wanting to negotiate the fee. It’s even worse when you didn’t get the desired result at trial. Include a provision that allows you, within a set time before a trial or other significant marker, to require a deposit of fees that fairly covers the cost of that event. Not only does such a provision give the attorney some degree of protection from the risks of a trial, it also requires the attorney and client to seriously focus on and assess what the case will cost to go to trial and whether settlement is a viable alternative. Heading to trial with a case on financial cruise control is bad business.

4

Record Time Concurrently.

Easy to say, hard to do. I hate recording time. Every attorney hates recording time. For those of us who principally work on an hourly basis, it is, without exception, the worst part of practicing law. But, in the context of running our businesses, it is the most important thing we do. That recorded time is the life blood for our practices. And our clients are entitled to fair billing, accurately reflecting what we did for them and what we are billing them for. The only fair and accurate way to record our time is to do it as we do the work. The major billing programs all have running clock features to record time as you work and mobile time-keeping functions for work on the go. They work great. It just takes discipline, excruciating discipline, to use them. In this age of email, we all have email roadmaps to create time entries for past work done. And, if we are honest, we will all admit to having done so, perhaps quite often. But, we really shouldn’t. It’s not fair to the client, it serves to delay prompt end-of-themonth billings and, for the attorney, invariably results in the underreporting

July/August 2019 SAN DIEGO LAWYER 23


LAWPAY IS FIVE STAR! In our firm, it's actually fun to do our billings and get paid. I send our bills out first thing in the morning and more than half are paid by lunchtime. LawPay makes my day! – Cheryl Ischy, Legal Administrator Austin, Texas

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

PAYMENT INBOX INVOICE PAID

$775.00

INVOICE PAID

$1,500.00

INVOICE PAID

$900.00

receipts@lawpay.com

receipts@lawpay.com

THE #1 PAYMENT SOLUTION FOR LAW FIRMS

receipts@lawpay.com

PAYMENT RECEIVED

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 against third-party debiting. Give your firm,

Now accept check payments online at 0% and only $2 per transaction!

and your clients, the benefit of easy online payments with LawPay.

877-593-7883 or visit lawpay.com/sdcba LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA and Citizens Bank, N.A., Providence, RI.

Proud Member Benefit Provider


LAW PRACTICE MANAGEMENT

of billable time. Further, it takes much more time to recreate billed time than it does to record the time while you work. So, if you don’t record while you work, you will ultimately end up spending more time, creating less accurate billings, which underreport your actual billable time — spending more time to produce less accurate billings, which make you less money! Dumb, huh? Currently, I use the Time Capture function in TimeSlips — works perfectly when I am disciplined enough to use it, which is most, but surely not, always. But I try!

5

Capture All Billable Expenses.

Your fee agreement will detail what expenses are to be charged to the client and how they are to be charged. Promptly charge the client for and collect those expenses. Expenses are incurred and documented in many ways in this digital age. Many services, like filing fees and online research fees, are drawn directly from bank accounts with emailed receipts. These can get lost in the daily deluge of email, then not billed and recovered. A few unbilled filing fees or service charges a month can add up to a sizable chunk at year’s end. And, that’s money right out of your pocket. In my office, both my paralegal and I double check our draft bills at monthend against withdrawals reflected in my online operating account statement. We, invariably, catch charges, usually small ones, that otherwise may not have been billed. Try that approach — works for us.

6

Bill Fairly and Promptly.

Bill promptly at the end of your billing period. Cash flow is critical in a solo or small firm practice. Billing delays interrupt regular cash flow. Don’t sit on cashflow in the form of un-billed, un-invoiced time. You don’t bill promptly, you don’t get paid promptly, you can’t pay your bills or bring money home promptly. It’s pretty simple. Plus, prompt, regular billing creates a positive client perception of office efficiency. And, the

more you delay your billing in a case, the more work you put into the case without corresponding case cash flow, placing yourself at greater financial risk in the case. And, bill fairly. Work and bill the case as and when required, and not as the billing calendar dictates. Do not cram in a bunch of work on a case into the last couple of days of the billing period just so you can squeeze it into this billing period as opposed to the next. Clients will see that and properly question it.

7

Religiously Monitor Your Finances and Pinch Every Penny.

Again, cash flow is king. Regularly monitor your collections, your billings and your expenses to maintain cash flow. If a client is not paying when she should, call her. On the expense side, buy what you need. Beyond that, pinch every penny. It’s not the big, fully vetted expenditures that hurt. You have done the cost-benefit analysis on those. It’s always the accumulated small expenditures that hurt. Get what you need — after that, pinch every penny!

8

Enforce Fee Agreements.

Enforce your fee agreements. 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. If they don’t, get out. You’re their lawyer, not their legal line of credit.

9

Make Your Quarterly Tax Deposits.

will soon find yourself getting extensions on your returns to make the money to pay last year’s taxes. Been there, done that! It gets brutal and it’s a difficult cycle to get out of.

10

Pursue Arbitration to Get Paid.

This will be controversial, but I generally will not let a former client, who can pay, walk away from a bill for my services. It’s just not fair. I will let a client pay off a bill over time, even a long time, and will cut deals to get immediate payment. But, unless it is a fairly small amount or I am satisfied after investigation the client no longer has the ability to pay, I will enforce my agreement and pursue that unpaid bill through arbitration or otherwise. I have rarely been in that position and it has usually been because I did not follow my own advice noted above. And the accepted rationale for not doing so — the invitation of a cross-complaint for malpractice — is surely valid. But I will just not walk away from getting paid for my work. And in those rare instances where I have pursued enforcement of fee agreement, I have gotten paid and there was no malpractice claim. If I follow my own advice noted above, I should not find myself in that position again. And the vast majority of clients, including mine, are good people who understand their obligation to pay for their legal services, and make every effort to do so. So, hopefully, I never have to follow my own advice on this one again! As a final and rather obvious piece of advice: Do excellent work and provide good service. Happy clients are paying clients! James D. Crosby (crosby@crosbyattorney.com) is a business litigation and trial attorney. His website/legal blog is Trial Call at www.trialcall.net.

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 July/August 2019 SAN DIEGO LAWYER 25


LAW PRACTICE MANAGEMENT

AND THIS ONE WAS JUST RIGHT: Transitioning Between Big and Small Firms By Michael G. Olinik

W

ith career mobility increasing, more attorneys are taking the leap and transitioning to different size law firms to try to find a better fit. Whether they find out that their first job out of law school isn’t as cracked up as it was supposed to be or a desire for a change in lifestyle, office hours, income, control or career opportunities, changing firms can be the key to reinvigorating a career or reestablishing one’s sanity. Finding the right firm may take some trial and error, but in the end, even if you choose to go on your own, it is not a journey you can do alone. As I discovered when I moved from Philadelphia to San Diego in order to revamp my career, it is the people around you that hold the key to your ultimate success regardless if you move from a big firm to a small firm or vice versa. The first step in transitioning firms is deciding to leave your current position. For younger attorneys who faced the tight job market after 2008 and were left with whatever job was available, the decision to leave is easy as they always wanted to find a career path to make their skills and passion. For other attorneys, the decision comes from realizing they are unhappy with their current situation or the desire to reach new heights in their careers. The more a person practices law, the more they discover what they excel at, what

26 SAN DIEGO LAWYER July/August 2019

they enjoy and what they despise. Change, however, is not without risk and may require a leap out of one’s comfort zone. I faced two major decisions for change in my career. The first decision, to move from a big international firm in Philadelphia to finding a small firm to work at in San Diego, was easy. I knew I did not want to stay in a big firm for my entire career and knew I wanted to move to San Diego. I would have never been successful, though, if I did not engage with the San Diego legal community, eventually meeting my boss and friends through SDCBA. My second decision, to leave the small firm in San Diego and open up my own firm, was harder. I only had the courage to make the transition after my friends pointed out how unhappy I was with my current situation and offered me guidance and encouragement to take the leap. After deciding to move on, the next step is figuring out where to go. There are pros and cons regardless of whether you move to a larger or smaller firm. Running your own firm or participating in a small firm requires not only setting up the firm, but also opening a business. Instead of just walking into a running operation, a lawyer branching out must decide what type of entity to use (sole proprietorship,

professional corporation or limited liability partnership), set up an IOLTA account, decide on malpractice insurance, set up a firm calendar and case management system, arrange for servicing and filing of documents, and determine whether the firm will have support staff. The attorney must also learn how to run a business, including finding office space; setting up utilities; setting up business banking accounts; market (and market some more); setting up email and a computer network; deciding whether to hire employees and, if so, comply with all of the California employer regulations; decide upon general liability insurance; learning how to invoice and collect from clients; and budgeting how to stay afloat while the business is building. Being at a small firm, however, gives attorneys more control. Attorneys can set their own hours, develop their own office culture, determine which clients to engage, determine what types of cases to take and set their own agenda. Going into a bigger firm, to the contrary, requires giving up control in exchange for a plethora of resources. An attorney entering a bigger law firm may no longer have control over staff decisions, which cases to work on, what clients the firm engages with, the billing policies, the location of the office, the billable hour


LAW PRACTICE MANAGEMENT

requirements and other firm policies. On the other hand, most of the business side of the firm is taken care of, allowing attorneys to focus more on legal work. The choice of what type of law firm and what type of law you practice is deeply personal. Though you are making a decision about your career, the decision impacts the people around you both professionally and personally. I was very afraid of opening up my own firm as I was worried about having enough money to pay my rent and other bills. I was lucky, however, to have friends who saw how despondent I was with my situation and encouraged me to take the leap. My friend Curtis Carll of Carll Law had just opened up his own firm and was able to share with me pointers and guide me through the realization that opening my own firm was the right move for me. Curtis needed a change in his career: “I had worked at big firms here in San Diego for the majority of my career but was no longer comfortable with the big law model. I wanted to work on cases I thought were important and choose my own clients.” Curtis had the support of his wife when he made the decision, and years of contacts he built up from his previous firms, which allowed him to make the leap.

While I went from a big firm to a small firm to a solo office, another colleague from that small San Diego firm, William Richards Jr., went the other direction to Gordon & Rees. William graduated from law school during the downturn in the legal field. The bigger firms were not hiring at the time, so he worked at a few smaller firms to begin his career. William honed his skills and abilities at smaller firms but wanted to work on the defense side of employment matters, which are often handled by bigger firms. “Once I became confident in my skills, I wanted a bigger challenge, and to me that meant working with more prominent clients.” It was the lessons from the attorneys he worked with at small firms, along with the support of his family, that made his move to Gordon Rees possible. Once an attorney makes the choice to transition, weighs the pros and cons, and executes the transition, the final step is successfully practicing law. Setting up a business or joining a firm may actually be the easiest part of the transition. Making it work afterwards requires a support network, whether it is fellow small firm attorneys collaborating or the lawyers in your group at a bigger firm working together.

When I opened up my own firm, I relied heavily on advice from Rachael Callahan of San Diego Evictions. Rachael started out doing contract work for a number of attorneys and now has her own firm with a full staff. Rachael mentored me on how to operate my own firm and utilize my connections to grow my business. She noted, “Even though I have always had my own firm, I participated in a ladies of family law group, which was integral to supporting my practice.” Rachael paid that support forward to me when I opened my own firm, and without, my transition would not have been successful. The ability to transition between firms is easier today than ever before. In the end, however, the key to successfully transitioning is the same as it has always been for success in the law: Find a reliable mentor and support network, participate in the legal community, and work hard. There is no need to pull a Goldilocks and deal with the three bears alone. Use the people around you to find your perfect fit. Michael G. Olinik (michael@oliniklaw.com) is founder of The Law Office of Michael G. Olinik.

July/August 2019 SAN DIEGO LAWYER 27


LAW PRACTICE MANAGEMENT

OUT-OF-THE-ORDINARY AND EXTRAORDINARY LAW FIRM MARKETING By Jeremy M. Evans

L

aw firm and attorney marketing has generally followed the times. When the distribution platform changes (e.g., technology advances), business owners would be smart to adapt and meet the customer or prospective client where they stand, search and share information, and basically live life. In today’s ever-increasing digital age, law firm and attorney marketing has made some unique twists and turns. Interestingly, most larger firms have traditionally stayed away from direct marketing of their services. As one big law colleague told me once when referencing the general thought on marketing, “It is below the legal profession to market legal services.” There may be some truth to that statement, especially where the average viewer cringes at the sight of an attorney advertisement that is funny for all the wrong reasons. On the other hand, marketing is an essential component to building a business, specifically a law practice filled with paying clientele.

28 SAN DIEGO LAWYER July/August 2019

As a foundation, it must first be understood that there is a difference between advertising and marketing. Advertising is generally something that is paid for, direct and placed strategically in some type of medium or distribution platform to reach prospective clients. Marketing is generally free and is indirect. Of course, there are overlapping services that touch both advertising and marketing (e.g., a lawyerly article paid for placement in a large distribution magazine platform). However, significantly, advertisement gets the attention of the State Bar of California and specifically California Rule of Professional Conduct 1-400 on Advertising and Solicitation. Again, some marketing crosses the line into advertising, but, for example, a 5 p.m. local television news appearance by an attorney talking about the law is free publicity and not direct advertising. Below are seven categories of advertising and marketing used by law firms of all sizes and solo practitioners, with "out of the ordinary" and "extraordinary" law firm marketing examples in each category.

1. MEDIA: NEWSPAPERS, PUBLICATIONS (PRINT AND DIGITAL), RADIO AND TELEVISION Becoming the official legal correspondent of a local or national news network is one of the best ways for free marketing by gaining recognition through established media. This author previously appeared on KUSI television in San Diego to discuss the implications of the Oakland Raiders' move to Las Vegas and was the legal correspondent for an ESPN radio station based in Kentucky, but with a national internet audience. That role led to more confidence, radio appearances, speaking engagements, invitations to publish articles and clientele who loved that their attorney “was on radio and television.” Attorneys like Gloria Allred, Harmeet Dhillon and many others have used television, radio and publications to promote brands, ideas and obtain marketing exposure.


LAW PRACTICE MANAGEMENT If law school teaches one thing generally it is how to communicate better, in conversation, negotiation, writing and speaking. However, when asked to write or speak, attorneys are often too busy. That is probably the biggest mistake an attorney can make in terms of brand exposure. There are simply too many publications and opportunities to share your knowledge and experience to ignore what it can do for your business and in educating the community.

2. TRANSPORTATION: AIRPORTS, BUSES AND RIDE-SHARE SERVICES Yes, Uber and Lyft vehicles are now installing over the roof digital advertisements like taxis of old. Funny how history has a history of repeating itself. Law firm and attorney advertisements on those digital platforms would be an ideal spot for a personal injury or another lawyer seeing the amount of people who use ride-share services and travel America’s roads. The number one business-only litigation law firm in the United States, Quinn Emanuel Urquhart & Sullivan LLP, has advertisements in airports throughout California with a picture of lady justice and the quote: “Justice may be blind, but she sees it our way 88% of the time.” Buses and bus benches are the oldest moving advertisements and often are in the language most prevalent to the area of the bus route.

3. NEW MEDIA: PODCASTS AND SOCIAL MEDIA Podcasts are all the rage today. Podcasts are easy to set up with low cost (a microphone and recorder) and a distribution partner. Often attorneys are now becoming the official legal podcast correspondent or producing their own shows versus traditional radio (which is generally heard once live and never again). The American Bar Association (ABA) Journal lists the top 100 legal podcasts, and some of those names are genius, if not funny: “Lawyerist Podcast,”“Lawyer 2 Lawyer,” “The Legal Geek Podcasts,”“Reasonable Doubt,”“Sword and Scale,”“Un-Billable Hour,” and “Undisclosed.” In San Diego, attorney Tara Shah has a media and law podcast that helps promote her brand and law topics of her choice.

Social media is a no-brainer. It is the freest and most accessible platform for information sharing in the history of mankind. If a law firm or attorney is not on it, the question is when, not why. Instagram is now used to share photos and videos of law firm events with logos on the pictures or videos.

4. TARGETED MEDIA: WEBSITE AND INTERNET DATA MARKETING A little more complicated with algorithms, search engine optimization (SEO), and data analytics options (generally contracted through third-party vendors) push information directly to certain clientele (those who have searched for a certain practice area in a geographic region) or cause your law firm or practice information to appear first or toward the top of any given webpage. Law firms and practices will also often use bots and messaging/chats to engage prospective clients when visiting a website: “Hey, may I answer any questions?” Websites can be important landing pages and contact-information gathering spots, but it is generally the other media mentioned herein that drive the most traffic and engagement from marketing. The problem again with direct and paid advertising is the in-person contact and advertising Rules of Professional Conduct that are not necessarily implicated from unpaid generic marketing on social media. This also includes weekly or monthly e-newsletters.

5. TRADITIONAL: BILLBOARDS AND SHOPPING CARTS One law office in California, now famously, used the free agency of basketball star LeBron James to recruit clients with the hashtag #LABron and the contact information for the personal injury law firm below it. It became a national phenomenon by using a national sports event to recruit and advertise. As for shopping carts, there is nothing better than pushing your kid around the grocery store on top of an advertisement for legal services, right? As that may seem too salesy, it is one of the more practical and economical spots to purchase and place an advertisement.

6. COMMUNITY: CHARITY, EVENTS AND PROGRAMMING Maybe the most altruistic aspect of marketing, this is where law firms send holiday cards to a large list of folks to say hello and remind people about their services. Events are also a big space for marketing, especially the more lavish ones. This author and many others attended a wonderful Casey Gerry law firm event at the San Diego Zoo a couple years ago that was a big hit. Marketing in this vein also includes sponsoring programming, conferences and the like. Attorneys can always highlight their organization, knowledge and speaking skills through MCLE programming. Moreover, bringing people together always brings more business opportunities, which leads to the next point.

7. RELATIONSHIPS Some attorneys have created social media groups and pages just for referrals and networking. Others attend events and keep connected with the legal community. The point is that being involved and taking on leadership opportunities is what builds genuine relationships that leads to business development. As much as technology advances, people will always like or dislike people, and business comes from people. In the end, the key to marketing, like Dale Carnegie once wrote in How to Win Friends and Influence People (paraphrasing), is getting people to like you and what you offer. That aspect of marketing — relationships — is fairly easy if your mission is to give back and stay involved. Jeremy M. Evans (jeremy@csllegalgal.com) is Managing Attorney with California Sports Lawyer.

July/August 2019 SAN DIEGO LAWYER 29


LAW PRACTICE MANAGEMENT

GIG ECONOMY:

How a Legal Advocate May Fit into the Scheme By Robert Bryson

T

he gig economy is a more sophisticated version (or perhaps exploitation?) of contract workers. The classic contract worker is someone you hire for a discrete task, for example, someone to paint your house. They are independent small business owners that specialize in providing services that everyone needs, but not on a full-time basis. Contract workers range from plumbers and painters to specialized business consultants brought on to shepherd specific projects or deals. The gig economy is composed of a series of companies that harness the connectivity offered by the internet to offer a broader range of services that fill “gaps” in the traditional economy. In one way, it is by hiring contractor-based work to perform functions that were traditionally fulfilled by

30 SAN DIEGO LAWYER July/August 2019

full-time employees. Gig economy workers can range from drivers, such as for Uber and Lyft; delivery drivers such as for DoorDash, GrubHub, Postmates, Uber Eats and Amazon Restaurants (rest in peace); and many other tasks in-between — I’m looking at you TaskRabbit. In another way, it is harnessing “assets” that are underutilized — such as Airbnb or Pavemint, which lets people rent their parking space. The gig economy affects lawyers in two ways: (1) a source of work or income and (2) as a source for potential clients.

SOURCE OF INCOME Attorneys can and do perform gig work. One of the more famous examples of attorneys successfully harnessing gigs is Kevin Ha of Minneapolis. Mr. Ha first became

famous a few years ago when it was reported that he paid off all of his student loans in 2.5 years by living frugally and making thousands of extra dollars a year doing gigs. Attorneys are not bound by any specific ethical duty when performing nonlegal work, however, we are required to “conduct [ourselves] at all times with dignity, courtesy and integrity.” Cal. Rules of Ct. R. 9.7. In general, the issues attorneys will most likely face when working in the gig economy is fending off questions and concerns from your customers when they find out you’re an attorney. When confronted with these unsolicited “potential” client questions, remember that the attorney/client relationship can be expressed or implied by a written or oral contract. Koo v. Rubio’s Restaurants, Inc.


LAW PRACTICE MANAGEMENT (2003) 109 Cal. App. 4th 719, 729; Nichols v. Keller (1993) 15 Cal. App. 4th 1672, 1684. Therefore, being clear about the status of your relationship, and maybe a confirming email or text to get it in writing, is good practice.

POTENTIAL CLIENTS The gig economy has come a long way since its nascent start at the end of the “aughts. ” The gig economy can serve as a source of clients in three ways: (1) contract workers whose rights were violated; (2) unclear commercial liability; (3) guests/ customers whose rights were violated.

CONTRACT WORKERS The golden rule is that contract workers have little to no rights. However, Dynamex Operations v. Superior Court (2018) 4 Cal. 5th 903 rewrote California’s test for determining whether a worker is an employee or contractor. Dynamex adopted the following test for a worker to be properly classified as an independent contractor: 1. The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact. 2. The worker performs tasks that are outside of the usual course of the hiring entity’s business. 3. The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity. In the coming years, it is possible that entire industries within the gig economy will be redrawn based on the Dynamex ruling. Moreover, the California Assembly just passed AB-5, which could reclassify millions of gig workers, including Uber drivers. Aside from improper classification, contract workers are also afforded a few protections in California. For instance, it is unlawful for a hiring entity to refuse to hire persons who “provid[e] services pursuant to a contract” [along with unpaid interns and volunteers]

on the basis of a series of protected classes including race, religion, ethnicity and more. Cal. Gov. Code § 12940(j)(1); see also Fitzsimons v. California Emergency Physicians Medical Group (2012) 205 Cal.App.4th 1423. Finally, gig workers may also be protected by the Unruh Act. Cal. Civ. Code § 51.5.

COMMERCIAL LIABILITY The gig economy exists in a legal gray area, which takes advantage of a layperson's unsophisticated understanding of the risks they are undertaking. For example, most (if not all) car insurance and home insurance policies expressly disallow coverage for any commercial uses. Driving for Uber and Lyft, or renting out a room or an entire house on Airbnb, could result in the nullification of that person’s liability coverage. While Uber, Lyft, Airbnb and the other companies do provide commercial coverage, deconstructing each of their policies could be a law review article on its own. These companies’ policies depend on a strict series of events to occur before their coverage activates. For example, Uber’s liability policy provides $50,000 bodily injury per person with a maximum of $100,000 in bodily injury per accident for drivers who are “active” on their app and waiting for a ride request. First, this coverage is significantly below the California standard of 100/300 coverage. Second, it was only a few years ago that Uber refused to offer any coverage for drivers who did not have a passenger in the vehicle. Finally, drivers risk having their personal car insurance cancelled if they report an accident following commercial activity. The liability issues also extend to gig workers who rent their assets. For example, Airbnb insurance is similarly restrictive. While it does offer Host Protection Insurance for up to $1M per occurrence in the “event of a third-party claim of bodily injury or property damage related to the stay,” it does not offer coverage in the event the host is injured due to the Airbnb stay. Moreover, most homeowners’ insurers will cancel any policy once a claim related to the commercial activity is filed. see also Lieber: “The Insurance Market Mystifies an Airbnb Host,” New York Times, December 19, 2014 (paywall).

Bear in mind the inverse of these issues is also a good source of clients — the more people use these services, the more they will get injured riding in Ubers and renting Airbnbs. In short, the liability exposure inherent to the gig economy creates plenty of opportunities for creative attorneys. There are potential claims against the companies for misclassification of employment status, bad faith insurance coverage, personal injury and more.

GUESTS/RIDERS/ CUSTOMERS/CLIENTS Aside from riders injured in Ubers and guests injured in an Airbnb rental, these gig-based companies are having to contend with anti-discrimination and harassment claims. While Uber gets the most attention — (1) “In Kidnapping Attempt, Uber Driver Told 2 Women ‘You’re Not Going Anywhere,’ Police Say"; (2) “They Thought It Was Their Uber But the Driver Was a Predator”; (3) “Uber Driver Accused of Sexually Assaulting Woman” and many, many more — it isn’t the only company connected to attacks and discrimination against its customers. Airbnb was famously engulfed in a firestorm of negative coverage after one of its hosts canceled a booking because the guest was Asian (he had to pay $5,000 and take an AsianAmerican studies class). The incident was so explosive that Airbnb agreed to test for racial discrimination by hosts. While the protections for contract workers are limited, guests/clients/customers/riders enjoy all the protections afforded by the California and U.S. Constitutions. The gig economy offers many potential avenues for clients and avenues for income for attorneys who are willing to push the envelope and develop the law around these companies. The gig economy presents huge opportunity for an entire class of attorneys to develop niche practices and litigate cases that may define the industry; however, this much opportunity also equals a lot of uncertainty for legal advocates. Robert Bryson (rtbrysonlaw@gmail.com) is a litigator at Aguirre & Severson, LLP.

July/August 2019 SAN DIEGO LAWYER 31



Firing a Client By Deborah Wolfe Part One of Three

E

ven more difficult than finding enough clients to keep a lawyer gainfully occupied, is knowing when and how to end representation of a client when it becomes clear that the relationship isn’t working. We have all had to disengage from representation, and doing so is frequently fraught with peril for both the attorney and the client. While no article can completely cover every potential scenario, this series of articles will attempt to provide the practitioner some guidance in moving through the process ethically. The best way to avoid having to undertake the uncomfortable task of firing a client is to start at the beginning: avoid undertaking representation of a client with whom you will have to disengage. While it is impossible to be 100% accurate in determining at the start of a relationship who will be that “difficult” client whose representation will lead to an eventual need to end the relationship before accomplishing the client’s goals, there are certain warning signs that one can discern from the outset, and usually during the first meeting. Not every lawyer is a “good fit” for every client; there is no shame in turning down representation of a person with whom you do not feel comfortable — whether for a particular reason or for no reason other than a “gut feeling." While not an exhaustive list, some “red flags” are: persons with a long history of litigation; those unwilling to heed advice contrary to their opinions; refusal to accept any responsibility for their own actions; telling the lawyer what to do, as opposed to asking the lawyer for recommendations; inability/unwillingness to provide the lawyer with requested documents or information; inadequate financial ability to sustain the litigation or transaction for which advice is being sought; untruthfulness; and volatility. Any potential client who is reluctant to provide the lawyer with adequate information/documentation and time to consider whether or not the lawyer should undertake the client’s representation, is a person who should be viewed with suspicion. Someone who has waited until the last possible moment to contact the lawyer, such as being only a few days before the statute of limitations, should be viewed with distrust. A good question to ask such a potential client is, “How many other lawyers have you consulted with before coming to me?” If the answer is more than two or three, and the client has been turned down by all of them, it begs the question, “What do they know that I don’t?” If the potential client talks disdainfully about lawyers who had previously represented the client, the lawyer should understand that undertaking the representation of that client will make the lawyer next in line for that client’s dissatisfaction. And, of course, a lawyer should not undertake representation of a client in any area in which the lawyer lacks competence. (See California Rule of Professional Conduct, “CRPC”, 1.1) While we all want to have sufficient work to do, sometimes that best money we will ever make is the client we didn’t take! The next article will address when it is appropriate to end representation of a client, and the last in the series will focus on how to end the relationship ethically, and with the least risk of harm to the client. Deborah Wolfe (dwolfe@wolfelegalgroup.com) is a trial lawyer, strategist and coach with a CLS in both Legal Malpractice Law and Civil Trial Advocacy. July/August 2019 SAN DIEGO LAWYER 33


THE LOST ART OF COLLEGIAL WORKPLACE CONVERSATION IN THE TWITTER ERA By Anne Kammer

C

offee talk — morning discussions at the office centered on the hasty ingestion of caffeine, catching up on office gossip, sharing thoughts about last night’s episode of [fill in the blank] and scoffing over President Trump’s latest “outrageous” tweet. The last topic often seems sufficiently noncontroversial — the President’s Twitter activity appears to be bipartisan in its bemusing effect on people. But what happens when the President tweets a specific political viewpoint and it somehow sneaks into the morning coffee talk anyway? For example, after the Supreme Court issued its ruling last summer in Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., President Trump commented positively on the ruling in a subsequent tweet:

The Janus case involved issues of sincere interest to attorneys across practice areas, including the Free Speech Clause of the First Amendment and the principle of stare decisis. The ruling had significant implications for the ability of labor unions to collect dues from nonmembers, a consequence viewed by many — including President Trump, see above tweet — as having important political ramifications. In other words, it was a big deal, something that a group of attorneys might have wanted to discuss and chat about over morning coffee, right? Not so fast. After conducting a nonscientific survey of a number of local attorneys, the majority indicated that if someone had brought up President Trump’s tweet about the Janus ruling at the office, they would have felt most comfortable “changing the subject.” That seems like a fair reaction, but also an unsatisfying one. As citizens, we are taught to care deeply about our country. As adults, we develop political beliefs informed by our culture, morality and environment. As attorneys, we learn to identify important legal issues, opposing positions and argue about them. So why should intelligent, educated and civic-minded individuals eschew discussing an important Supreme Court ruling simply because President Trump tweeted about it? What are we afraid is going to happen if we disagree? 34 SAN DIEGO LAWYER july/August 2019


Reasonable minds may differ over the appropriateness and appeal of engaging in political discourse in a professional setting, but odds are it has happened and will happen again. Tip O’Neill’s sentiment that “all politics are local” may well and truly be dead — thanks in no small part to the dawn of an age in which one might utter the phrase “President Trump’s Twitter rant.” But while politics may be trending generally toward nationalization, talking about politically charged issues remains personal and therefore retains a parochial nature. Not everyone takes to Twitter when they want to comment about public affairs. Most of us still do things the old-fashioned way — we actually speak words to another human being. And because we spend countless hours of our days at work, this includes colleagues and co-workers, in addition to friends and family. People insist that our nation’s politics has become increasingly polarizing. If this is true, or even if it is just the common perception, can politicized legal discourse be civil? Is it possible to talk about legal issues with political implications without resorting to fisticuffs at the office? The answer proffered here is “yes,” and members of the legal profession already have rules in place for how to do so. On July 20, 2007, the Board of Governors of the State Bar of California adopted the California Attorney Guidelines of Civility

and Professionalism. Less than a year later, the San Diego County Bar Association introduced an updated Attorney Code of Conduct as part of its 2008 Campaign on Civility, Integrity and Professionalism. Both the Guidelines and the Attorney Code address the duties members of the legal profession owe to one another and the manner in which we should strive to communicate with one another. According to Section 4 of the State Bar Guidelines, “[a]n attorney’s communications about the legal system should at all times reflect civility, professional integrity, personal dignity and respect for the legal system.” The commentary specifically instructs that “[a]n attorney should avoid hostile, demeaning or humiliating words” while contemporaneously acknowledging that “an attorney’s good faith expression of dissent or criticism made in public or private discussions for the purpose of improving the legal system or profession” is not prohibited. Likewise, the SDCBA’s Attorney Code instructs that “[l]awyers must remember that conflicts with opposing counsel are professional and not personal; vigorous advocacy is not inconsistent with professional courtesy.” These standards for civility bolster the profession by minimizing personal animosity, encouraging humility and cultivating diversity. If we aspire to

these same standards in our day-today interactions with co-workers and colleagues, we can communicate about anything — including tricky legal issues with thorny political implications — with respect and without hostility to contrasting viewpoints. Members of the legal profession should want to converse with their colleagues about matters of consequence and should be able to do so while fostering an inclusive atmosphere tolerant of diverse viewpoints, amenable to deliberation and discussion. Civility and professionalism are required in the courtroom and the conference room. They should be present in equal measure at the water cooler and the lunch table. Easier said than done? Of course, but civility is by its nature aspirational, and practice makes perfect. So, what happens the next time President Trump tweets about an important Supreme Court ruling and someone at the office brings it up over morning coffee talk? One option is to change the subject. But another option is to talk about it. After all, if lawyers can’t have an interesting conversation or an informed debate about the law, who can? Anne Kammer (anne_kammer@casd.uscourts.gov) is a judicial law clerk in the Southern District of California.

ARE WE SILENCING OURSELVES? By Tandis Taghavi CASE: COUNTY OF SACRAMENTO v. LEWIS (1998) Two hundred students stared blankly as Professor X asks the most obvious question, “Should police officers be held to a higher standard?” The air in the room grew crisp as heads began to turn. The stench of fear lingered as 200 curious minds started placing bets on who would dare volunteer as tribute. But this time, not a single soul raised his or her hand. Why? Were we too afraid to offend? Were we too shy to raise our hand? Maybe even afraid of what our colleagues would think of our opinion? But why were we so hesitant to answer questions regarding a United States Supreme Court case that was already decided? Why were we so timid to discuss our own due process rights? After all, don’t all 200 of us care about the difference between a deliberate and reckless death?

In May 1990, Deputy Smith and Deputy Stapp engaged in a high-speed chase with Brian Willard and Philip Lewis. Lewis was a passenger on the motorcycle and died as a result of the high-speed chase. In an attempt to get away, Willard had made a sharp turn but lost control and tipped the bike over, throwing the two riders onto the pavement. Unfortunately, Deputy Smith was unable to stop and accidentally skidded into Lewis. Well, if this was an accident-and accidents happen-then why was Professor X pressing us to discuss to what standard we thought was appropriate to hold police officers? One particular fact in this case stood out the most: “The pursuit, which lasted less than one and one-half minutes, ended at the intersection of Chestnut Avenue and Orangevale Avenue.” Was Chestnut Avenue and Orangevale Avenue a highly

congested area? Was actual deliberation not practical because of the nature of the high-speed chase? But what defines a high-speed chase? Is it still considered an emergency situation, even though the chase lasted for more than 60 seconds? Regardless of these controversial facts, it was astonishing to witness firsthand how uncomfortable a room full of upper division law students were in a constitutional law class. If law students aren’t comfortable discussing these issues in a perfectly appropriate forum, then when will they ever be discussed, if ever? As a society, are we culturally silencing ourselves? Tandis Taghavi (ttaghavi@law.cwsl.edu) is a law student at California Western School of Law. July/August 2019 SAN DIEGO LAWYER 35


30,000 CLIENTS

ARE WAITING TO GET REFERRED TO YOU

The SDCBA’s Lawyer Referral and Information Service (LRIS) makes over 30,000 client referrals to local attorneys every year. You could be one of those attorneys. As part of the LRIS program, you would be in great company. Our thorough qualification process ensures you will be part of a competent and conscientious group of lawyers carefully selected to provide the peace of mind our clients trust and rely on. And rest assured, we are equally judicious in qualifying potential clients before we refer them to you. Applying to join is very affordable, especially for SDCBA members. Best of all, by participating in the program, you will be helping clients get legal services they might not otherwise know how to find – and gain great clients for your practice – a true win-win. All of which makes applying to join LRIS an easy case to make.

Learn more about applying for LRIS today: (619) 321-4153 or LRIS@sdcba.org


Meditation

P ath way to Mi n df u lness By Rick Waite

WHAT IS MINDFULNESS? Mindfulness is a term that is bandied about all over the media today. What is it? The best definition I have heard is from Jon Kabat-Zinn, one of the founding fathers of the modern mindfulness movement: Mindfulness is moment-to-moment awareness. Mindfulness is the continued awareness of yourself, your physical and mental state, your emotions, your environment, and the physical, mental and emotional state of the people around you. It is tuning into what is happening inside and outside of you from moment to moment. As described in the title of the 1971 book by Ram Das (born Richard Alpert) on spirituality, yoga and meditation it means “Be Here Now.” In some circles this is called being conscious. Another definition of mindfulness is simply being in the moment. MINDFULNESS THROUGH MEDITATION How do you achieve mindfulness? One way (not the only way) is by developing a formal meditation practice. And what is meditation? Mediation is a simple, easy-to-learn technique for relaxing your mind and body. It helps calm the chaos in your mind. I have taught hundreds of people to meditate and most people who meditate find that even a five or 10 minute meditation causes their mind and body to slow down. Immediately after meditating, many people feel calmer, more grounded and an overall sense of well-being. BENEFITS OF MEDITATION Before meditating, most of us have nonstop thoughts bombarding our consciousness like a snow globe that has been vigorously shaken. After meditating, it is like the snow globe a few moments later — most of the snowflakes have settled and the few that are in motion are slowly floating along on their way to the bottom.

This sense of peace, calm and well-being is an immediate benefit of even a single meditation. But the really profound benefits of meditation come when you develop a daily meditation practice. And one of the long-term benefits of a daily meditation practice is the cultivation of a mindfulness mindset. DAILY MEDITATION: A PRACTICE In my experience, most people who meditate daily experience a new way of relating to themselves and the world. They are more thoughtful, more patient and more accepting of themselves and others. Instead of being agitated by unpleasant triggers and reacting in a knee-jerk manner, a regular meditation practice can help you pause and override that deep-seated urge to inflict punishment in titfor-tat retaliation. A regular meditation practice programs into our brains that all-important pause between stimulus and response that enables us to respond rather than react. And it is not necessary to meditate for long periods of time: five or 10 minute meditations are worthwhile. The key is to develop a daily meditation practice. Armed with the insight and perspective that comes with deep moment-to-moment awareness of yourself, others and your environment, imagine the creative solutions you can obtain for your clients. And yourself. TRANSFORMATION THROUGH MEDITATION I am reminded of the story from a friend and fellow teacher of meditation about a young, tough, street-smart, good-looking kid who was beginning to meditate. After a few weeks, my friend asked the young man how his meditation practice was going. “Pretty good,” he said. “Saturday night I was at a party with my girlfriend. A guy started hitting on her. I was about to smack him when I stopped and thought ‘You don’t have to do this. There’s another way to deal with this guy.’'"

MEDITATION FOR YOU There are 10,000 ways to meditate. What is important is picking one that works for you. 1. You can buy the book 10% Happier by Dan Harris, which has helped many people develop a meditation practice. Transcendental Meditation has taught hundreds of thousands of people how to meditate, including Paul McCartney, Stevie Wonder, Clint Eastwood, Howard Stern, Eddie Vedder, Russell Simmons, Sheryl Crow and Deepak Chopra. 2. Insight Timer is a free app that has 15,000 guided meditations. 3. The Meditation Initiative is a local nonprofit that has taught thousands of people to meditate. Their programs are free. 4. If you are new to the practice of meditation, try different kinds of meditations (guided meditations, breathbased, mantra-based, app-or book-based) until you find one that works for you. 5. You can also join us on the second Wednesday of every month at the San Diego Bar Center downtown for Wellness Wednesday, where you can learn to meditate in just one session and join your colleagues in the fellowship of a group meditation. I hope to see you there. Best of luck on your journey to achieve mindfulness through meditation. Rick Waite (rwaite@keenlaw.com) is an AV lawyer with the law firm of Keeney Waite and Stevens. He has taught hundreds of lawyers and people from all walks of life how to meditate. He began meditating in 1971 and has had a daily meditation practice since 2010.

July/August 2019 SAN DIEGO LAWYER 37



A VOICE ON ISSUES THAT MATTER By SDCBA

O

ne of the ways your San Diego County Bar Association serves its members and the public interest is by being a representative voice on a number of current law-related issues that may have significant impact on the community. Accordingly, the SDCBA will periodically issue public position statements on such issues. The SDCBA follows specific guidelines for evaluating which issues are appropriate for issuing a public comment. The evaluation process begins whenever the SDCBA receives a request to take a public position. Requests are carefully considered by our Public Positions Advisory Group (PPAG). In particular, the SDCBA has identified the following areas as appropriate for considering taking a public position or providing comment that will help educate the public, when they are in line with the SDCBA’s mission, pertaining to:

• The administration of justice (including respect for the rule of law and the judicial branch) • Diversity and inclusion in the profession • Professionalism and ethics; civility; equal justice under the law or civil liberties • The independence of the judiciary (including criticism of judges) • Constitutional rights that impact the justice system • Access to justice If you are a member of the SDCBA, a lawrelated organization, the judiciary or the media, you can request that we consider an issue for a public position by completing the Public Comment/Public Position Request Form on our website at www. sdcba.org/publicpositionrequest. You’ll also find the link in the “FOR MEMBERS”

drop-down menu or by searching for “Public Comment” in the website search bar. The SDCBA also keeps an archive of prior statements issued, which is accessible from the Advocacy page in the "About SDCBA" section of our website at www.sdcba.org/advocacy. While we cannot make any guarantee that the SDCBA will take a public position on an issue, we definitely appreciate all submissions and we will give every request a thorough and conscientious review. If you have any questions about the process, please feel welcome to contact Executive Director Jill Epstein, at jepstein@sdcba.org or the Chair of the Public Positions Advisory Group, Johanna Schiavoni, at johanna@schiavoni-law.com.

STATE BAR TASK FORCE SEEKS PUBLIC COMMENT Recommendations include non-lawyers providing some legal services and use of technology, including artificial intelligence, and online legal service delivery models. By Edward McIntyre

T

he Board of Trustees authorized formation of a Task Force on Access Through Innovation of Legal Services to identify possible regulatory changes for enhancing the delivery of, and access to, legal services through the use of technology, including artificial intelligence and online legal service delivery models. At the July 11, 2019 Board of Trustees meeting, the Task Force presented tentative recommendations as options it is considering and sought a 60-day public comment period and a public hearing on its tentative recommendations. Those tentative recommendations look to achieve the dual goals of public protection and increased access to justice.

Among the recommendations are: • Authorize non-lawyers to provide specified legal services and advice as an exemption to unauthorized practice of law, with appropriate regulation; • Permit entities that provide legal or law-related services be composed of lawyers, non-lawyers or a combination of the two; • Permit State-certified entities to use technology-driven legal services delivery systems to engage in authorized practice of law; • Adopt a new Comment to Rule 1.1, “Competence,” stating that the duty of competence includes a duty to keep abreast of the changes in the law and its

practice, including the benefits and risks associated with relevant technology; • Amend rule 5.4 relating to the general prohibition against forming a partnership with or sharing a legal fee with a non-lawyer; and • Adopt the revised ABA Model Rules 7.17.5 on advertising and solicitation. The Task Force’s report to the Board details the proposed recommendations and both pros and cons as well as supporting material. Edward McIntyre (edmcintyre@ethicsguru.law) is a professional responsibility lawyer and co-editor of San Diego Lawyer.

July/August 2019 SAN DIEGO LAWYER 39


1899 2019

LOOKING BACK:

JUDGE HUGHES AND THE BIRTH OF THE BAR By George W. Brewster Jr.

The SDCBA turns 120 this year. This biosketch is part of a look back at prominent members of the Bar during its origin year of 1899.

I

n 1899, the San Diego County Superior Court bench consisted of two judges. One, E. Swift Torrance, was profiled in the May/June 2019 issue of San Diego Lawyer. Fortunately, for the San Diego County Bar Association, the other sitting judge was John Wilmer Hughes. Unfortunately, as we shall see, it didn’t work out so well for him.

(Illustrated History of Southern California, quoted in Leland G. Stanford’s Legal Lore & the Bar, page 213).

Hughes, a native of Virginia, graduated from Richmond College in 1876. He left for Louisiana to take a position as professor of Greek in Keachi College, then went back to Virginia to take a course in law at the University of Virginia. Ever restless, he left for Gainesville, Texas, where he was soon elected district attorney, and later appointed special judge of the Texas 10th judicial district.

Because of the huge population growth in San Diego, the California legislature increased the number of Superior Court judges from one to three. Soon after, the area ran out of water, and a subsequent 10-year drought caused two-thirds of the town’s population to leave. The legislature reduced the number of judges to two. The next judicial election (1896) saw three Republican judges running for two seats; Hughes (with Conklin’s hefty support) ran as a Democrat and secured one of the seats due to the three Republicans splitting their base vote.

He eventually crossed paths with Norman H. Conklin, 16 years his senior, who persuaded Hughes to go with him to San Diego and form a law partnership. The year was 1887, and the population was in the middle of a boom phase (8,000 in 1886 to 50,000 in 1888) thanks to land speculators and the tripling of businesses. (The legal profession grew rapidly during this time as well; also arriving in 1887 were Cassius Carter, Eugene Daney, William Sloan, E. Swift Torrance, and William H. and Wirt Francis Forward, and for a short

40 SAN DIEGO LAWYER July/August 2019

Business was good for Hughes, too, and news articles at the time noted his “delightful home at 24th and C Streets” and a trip he took to Europe.

time, Clara Shortridge Foltz, California’s first woman lawyer.) Within three years of his arrival, Hughes ran as a Democrat for San Diego Mayor in 1890, purportedly losing by just a handful of votes “though facing great odds in a heavy Republican majority in the city.” (San Diego Union, Nov. 8, 1896, pg. 2, col. 1). Hughes continued his law practice with Conklin, which thrived in the economic boom, with a writer at the time noting Conklin “has the largest general law practice of all attorneys in San Diego.”

Prior to 1899, there existed some form of a bar association, but likely it was little more than a poorly organized social club. (100 Years of Justice, San Diego County Bar Association, page 16). For reasons unknown, Judge Hughes suggested that a group of prominent local attorneys gather in his courtroom to discuss the formation of a more formal


bar association. That meeting was held on Saturday, April 22, 1899, at 10 a.m., in Department 2. Judge W.T. McNealy, the first elected Superior Court Judge in San Diego (who retired from the bench in 1886 due to poor health caused by the white plague, dying in 1909 at age 38) was unanimously chosen to chair the meeting. A committee was formed to draft the bylaws and constitution of the organization, and the group met one week later in Department 2 and adopted the proposed documents. Eugene Daney Sr. was elected the organization’s first President. (See “Bar Association of San Diego: Its History, Constitution, Bylaws and Membership”, a publication by the young bar published in 1915, available for review in the San Diego Law Library history archives.) In the summer of the following year, the two sitting judges (Torrance and Hughes) both took leave from the bench for vacation. Hughes went back to Virginia to visit with relatives, and while there he fell ill and was taken to Garfield Hospital

in Washington, D.C. He died of “cerebral meningitis” on July 25, 1900, and was buried in Virginia. (San Diego Union, July 26, 1900, pg. 5, col. 2). A doctor at the Garfield Hospital stated that Hughes’ condition was largely due to “the unhealthy condition of the courtroom where he was compelled to try his cases,” noting that the courtroom was windowless and had poor ventilation. On July 27, 1900, a special meeting of the bar association was called for 10 a.m. in Department 2 to eulogize Hughes. As noted in the San Diego Union, Eugene Daney opened the meeting with remarks, and the courthouse bell was tolled between 11 a.m. and 11:30 a.m., the time the funeral was being held in Virginia. Daney and Conklin were both considered for appointment to the bench to replace Hughes, but ultimately the successor was George Fuller, who also came to San Diego in 1887. His judicial tenure was one of the shortest — just a few weeks, due to the upcoming regular election for that seat.

The Democrat nominee, Conklin, defeated the Republican nominee, Daney Sr. Maybe it was the curse of Department 2 in this 1890-constructed courthouse. Conklin died in 1907 (at age 69) while serving on the bench in Department 2 for 7 years; his replacement (Judge T.L. Lewis) died in 1920, while serving on the bench in Department 2 for 13 years. That courthouse, at 220 W. Broadway, was torn down in 1959, having undergone many renovations. Presumably, for the sake of the judges therein, this included better ventilation. George W. Brewster Jr. (sandbrews@aol.com) is a retired attorney after 35 years of practice, including JAG, private practice and the last 30 with the County of San Diego, Office of County Counsel.

The San Diego Superior Court, San Diego County Bar Association and San Diego Society of Professional Journalists present:

PRESERVING FREE COURTS AND FREE PRESS Exploring escalating threats to the third and fourth branches of our democracy

August 14 Social Hour: 5-6 pm Presentation: 6-7 pm San Diego County Bar Association 401 W. A Street Suite 120 San Diego, CA 92101 Refreshments will be served

EXPERT PANEL DISCUSSION An independent judiciary and a strong, free press are keystones of a vibrant democracy. Attorneys, judges, and members of the media will gather to examine increasing pressures on judges and reporters. From recalls to blacklists, the program will evaluate how the environment is changing and why the public should defend these important institutions. July/August 2019 SAN DIEGO LAWYER 41 Register now at www.sdcba.org/BenchBarMedia


JUDICATE WEST THE GOLD STANDARD in Private Dispute Resolution

Hon. Jan M. Adler, Ret.

N. Denise Asher, Esq.

Hon. Victor E. Bianchini, Ret.

Jonathan A. Brenner, Esq.

Hon. Steven R. Denton, Ret.

Hon. Christine Hon. Herbert B. Goldsmith, Ret. Hoffman, Ret.

Jeffrey Joseph, Esq.

Robert J. Kaplan, Esq.

Hon. Joan M. Lewis, Ret.

Hon. William McCurine, Jr., Ret.

Hon. David B. Moon, Jr., Ret.

Hon. Thomas P. Nugent, Ret.

Gregory A. Post, Esq.

Hon. Ronald S. Prager, Ret.

Hon. Joel M. Pressman, Ret.

Hon. Linda Quinn, Ret.

Thomas E. Sharkey, Esq.

Hon. Leo S. Papas, Ret.

Maureen Summers, Esq.

These respected neutrals are available through Judicate West. For more information call (619) 814-1966 or visit our website at

WWW.JUDICATEWEST.COM DOWNTOWN LOS ANGELES | SACRAMENTO | SAN DIEGO | SAN FRANCISCO | SANTA ANA | WEST LOS ANGELES


Legal Aid Society of San DIego

THE JOURNEY TOWARD JUSTICE BEGINS HERE STORIES ABOUT THE WORK OF THE LEGAL AID SOCIETY OF SAN DIEGO By Gregory Knoll, CEO/Executive Director/Chief Counsel

O

n Friday, May 31, 2019, the Legal Aid Society of San Diego (LASSD) held its Annual Volunteer Appreciation Luncheon at the Westin Gaslamp on Broadway Circle. We honored 50 dedicated and committed individuals and organizations with our Outstanding Service Awards. These awards are special thanks for impressive contributions and/or collaborations with our firm. We were also proud to honor the backbone of our volunteer program, the 86 individuals who received the Wiley W. Manuel Award from the State Bar of California for donating more than 50 hours to our clients over the last 12 months. Over the last year, these honorees helped San Diegans in crisis. They helped to protect victims of violence. They protected consumers from fraud and harassment. They also fought

homelessness. Their selflessness and expertise made a real difference in the lives of low-income San Diegans.

attorneys in society, and the privilege of giving back to the less fortunate in our community.

San Diego Superior Court Judges Eddie C. Sturgeon and Robert C. Longstreth were our distinguished guests and inspiring speakers during the luncheon. Superior Court Judge Dwayne K. Moring was also in attendance.

Student interns from High Tech High School also showed off their video production skills by presenting a short video of the joys of volunteering for LASSD.

Judge Margaret M. Mann of the U.S. Bankruptcy Court could not attend due to a prior commitment, but she took the time to record a brief video thanking LASSD staff and all of the volunteers. Linda Lane, formerly of Morrison & Foerster and now with USD Law School, the current President of the Board of Directors of LASSD, also spoke to the crowd in glowing terms about our volunteers and the important role of

WHEN ? WHAT TO DO

Over the last year, our volunteers assisted more than 10,000 people in our self-help clinics at the courthouses alone. All of the volunteer hours, from self-help services to community education and full representation, have been valued at more than $3 million. If you are an attorney, a paralegal, a law student or just somebody who would like to give back to your community, please contact Pro Bono Program Manager, Sara Raffer Lee, at (619) 471-2717.

WHAT TO DO WHEN YOUR CLIENT WANTS TO SUE YOU FOR MALICIOUS PROSECUTION? In this new feature, Daniel Hager, Corporate Counsel for Ahern Insurance Brokerage, talks about clients who want to sue for malicious prosecution. Ahern Insurance is the preferred provider for the SDCBA.

Your client won after being sued in what she believed was a meritless case. Her defense fees were high. She wants you to sue her former adversary and his lawyer for malicious prosecution. Think long and hard before taking the case. Malicious prosecution is notoriously hard to prove — the probable cause standard is low, and malice difficult to prove. Study the elements of the tort carefully. Explain to your client — in writing — the challenges she will face. She will probably draw an anti-SLAPP motion, which will likely be granted. The other side will then recover its reasonable attorneys’ fees and costs in bringing the motion (and fees on appeal if the ruling is affirmed), which will be substantial. Lawyers who do not educate clients about these significant risks often next find themselves as defendants in malpractice cases, by clients who justifiably ask, “Why didn’t you tell me this would happen?” July/August 2019 SAN DIEGO LAWYER 43


100

LUB

EN PERC T C 2019

THANK YOU 100 PERCENT CLUB 2019 The San Diego County Bar Association wants to thank all of the San Diego law firms that have provided SDCBA membership to 100% of their attorneys in 2019. Your commitment to the San Diego legal community is greatly appreciated.

Allen, Semelsberger & Kaelin, LLP Antonyan Miranda, LLP Atkinson, Andelson, Loya, Ruud & Romo 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 Christensen & Spath LLP Cohelan Khoury & Singer Collinsworth, Specht, Calkins & Giampaoli, LLP Dentons US LLP Devaney Pate Morris & Cameron, LLP Dietz, Gilmor & Chazen, APC Duckor Spradling Metzger & Wynne, ALC Dunn DeSantis Walt & Kendrick, LLP Erickson Law Firm APC Farmer Case & Fedor Ferris & Britton, APC Finch, Thornton & Baird, LLP Fleischer & Ravreby Fragomen, Del Rey, Bernsen & Loewy, LLP Frantz Law Group APLC Garmo & Garmo LLP Gatzke Dillon & Ballance LLP Gomez Trial Attorneys Goodwin Brown Gross & Lovelace LLP

GrahamHollis 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 Hoffman & Forde Hooper, Lundy & Bookman, PC Horton, Oberrecht, Kirkpatrick & Martha, APC Hughes & Pizzuto, APC Jackson Lewis PC Judkins Glatt & Rich LLP JWB Family Law Klinedinst PC Koeller Nebeker Carlson & Haluck LLP Konoske Akiyama | Brust LLP 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, McCabe & Hudson APLC Niddrie | Addams | Fuller I Singh LLP Noonan Lance Boyer & Banach LLP

Paul, Plevin, Sullivan & Connaughton LLP

Pettit Kohn Ingrassia Lutz & Dolin Pillsbury Winthrop Shaw Pittman LLP Preovolos Lewin & Hezlep, ALC Procopio, Cory, Hargreaves & Savitch LLP RJS Law Rowe | Mullen LLP Sandler, Lasry, Laube, Byer & Valdez LLP Schwartz Semerdjian Cauley & Moot LLP Selman Breitman, LLP Seltzer|Caplan|McMahon|Vitek ALC Sheppard, Mullin, Richter & Hampton LLP Shoecraft Burton, LLP Shustak Reynolds & Partners, PC Siegel, Moreno & Stettler, APC 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 Rez & Engel, APLC Thorsnes Bartolotta McGuire LLP Tresp Law, APC Walsh McKean Furcolo 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


WHY I BELONG ADAM HEPBURN

Favorite website: The New York Times.

Hepburn, Hernandez and Jung Trial Attorneys

Hobbies: Learning Spanish, scuba diving, traveling, studying U.S. history and gardening.

Education: UC Berkeley; California Western School of Law

Favorite book: Dune by Frank Herbert.

Areas of practice: Criminal Defense & Personal Injury

Favorite food: Thai or Vietnamese.

Proudest career moment: “Not Guilty” verdicts on a drug sales case where law enforcement used a confidential informant. I used the “entrapment” defense, which everyone told me wouldn’t work and was only used in movies. Family: My wife, Christina Hepburn, and a huge Italian family. Birthplace: Glendale, CA. Current area of residence: I split my time between Carlsbad and Little Italy. “If I weren’t an attorney, I’d be ... ” : I have always dreamed of owning a coffee shop that looks like a super old Irish or English pub. Also, I would give up my right hand to be an astronaut. "The best thing about being an attorney is ...”: Getting to learn about diverse subjects, such as anatomy, DNA, medicine, science, etc., in the course of representing clients. Last vacation: Thailand.

Meet Your

Bar-ista

SDCBA Staff Serving Our Members

Best concert you’ve ever been to: Paul McCartney.

Most fun/memorable SDCBA moment or meeting: Watching Jose Badillo receive Trial Attorney of the Year in front of his wife and two kids. It was a great moment and a great speech. Do you have a unique skill or special talent nobody knows about? I used to sing in a competitive choir, but my voice has certainly gone downhill since then. What one skill has helped you be successful as an attorney, and how could others develop that skill to better their practices? To be very prepared and to ask for honest feedback from attorneys you trust. Do you have a mentor? Not a mentor, but a role model: Gerry Spence. What would you most like to be known for? That I left the world a bit better than when I arrived. That, and well, big verdicts in difficult cases. What makes San Diego’s Bar so special/unique? The small, hometown vibe. After practicing all over Southern California, I feel very grateful to call San Diego my home.

What are your main responsibilities at the Bar?

services and analyzing all efforts to determine our members' needs.

Previously, I oversaw all the production and content for the print and electronic publications including San Diego Lawyer, This Week at the Bar, Ethics Quarterly, For the Record, and Blawg 401. In Augsut, I will begin my new role as Marketing Manager where I will develop, execute and analyze all campaigns and marketing efforts.

What is your favorite movie and why?

How long have you been working at the Bar?

“Your body is not a temple; it’s an amusement park. Enjoy the ride.” — Anthony Bourdain

Two and a half years. What is your favorite part of your job?

SASHA FEREDONI Publications and Content Coordinator (effective August, Marketing Manager)

As for publications, I enjoy juggling multiple projects and working with our members to create wonderful content for the community. In my new role, I am looking forward to marketing SDCBA

My favorite movie is Amelie directed by Jean-Pierre Jeunet. I enjoy a quirky international film where you get to immerse yourself in a different language and country. What’s your favorite quote?

What do you love about San Diego? I love the diversity in people, food, culture, terrain, and that with one short car ride, I can be in Mexico sipping a michelada.

July/August 2019 SAN DIEGO LAWYER 45


Friend & Patron Members The San Diego County Bar Association gratefully acknowledges its Sustaining Members for their outstanding commitment and generous support in 2019. PATRON MEMBERS Marc D. Adelman

Sergio Feria

Gerald S. Mulder

Doc Anthony Anderson

James P. Frantz

Raymond J. Navarro

Judy S. Bae

Matthew David Freeman

Anthony J. Passante Jr.

Victor E. Bianchini

Douglas A. Glass

Teodora D. Purcell

Jedd E. Bogage

Richard A. Golden

Kristin E. Rizzo

James A. Bush

Alvin M. Gomez

Ana M. Sambold

Jose S. Castillo

Anthony Hawkins

Thomas P. Sayer

Andy Cook

Van E. Haynie

Johanna S. Schiavoni

Steven T. Coopersmith

Matthew C. Hervey

Richard S. Sterger

Ezekiel E. Cortez

Stephen M. Hogan

Todd F. Stevens

Thomas M. Diachenko

Richard A. Huver

Kimberly Swierenga

John A. Don

Garrison “Bud� Klueck

Thomas J. Warwick

William O. Dougherty

Don S. Kovacic

Andrew H. Wilensky

Alexander Isaac Dychter

Laura H. Miller

New Patron Membership Benefit 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

Anthony J. Gizzarelli

Anne Perry

Steven Barnes

Ronald Leigh Greenwald

Kristi E. Pfister

Linda Cianciolo

Mark Kaufman

Stella Shvil

David B. Dugan

Marguerite C. Lorenz

Clay Spiegel

Thomas Fitting

Mary Beth Martin

Susan K. Fox

Christine Murphy


Distinctions

The following individuals in our community were recently honored for a variety of achievements: Jason Sheinberg, Chair of SDCBA Lawyer Referral and Information Service (LRIS), was appointed to the American Bar Association Standing Committee on LRIS.

Higgs Fletcher & Mack LLP attorney Ross Bautista was elected to the University of San Diego (USD) School of Law Alumni Association’s Board of Directors for 2019-2020 and will serve a two-year term.

John D. Klinedinst of Klinedinst PC, was named winner of the 2019 Most Admired CEO award by the San Diego Business Journal.

SDCBA STAFF ANNOUNCEMENT Keith Fisher is the new Deputy Executive Director for the SDCBA. Keith has worked in a leadership capacity as a member of senior management in non-profit, service and technology for the past 25 years in San Diego. His areas of expertise include building and developing successful businesses, boards of directors and management teams, business development and sustainability planning, partnership and collaboration development initiatives, corporate oversight of bylaws and governance ,and human resources. Aside from more recent consulting work, Keith previously held the title of Chief Operating Officer at the San Diego Opera for 15 years. Most notable is his role in the saving of the Opera in 2014 when impending closure of the venerable arts institution rocked the San Diego community.

Keith was tasked with leading the transition of the Opera as a facilitator and advisor to the board, staff and community. While certainly one of the most challenging of circumstances professionally, his role in saving of San Diego Opera is one of his proudest accomplishments. Prior to this, Keith held senior management positions in the technology sector which include ConfirmNet and WebSideStory. Keith’s educational background includes an Executive MBA from San Diego State University and a Bachelor’s of Science in Administration from Northeastern University. Originally from Maine, Keith has lived in San Diego for over 25 years and resides in Kensington with his partner Mark. In their free time, the duo are incurable home improvement junkies.

In Memoriam Attorney Michael T. Thorsnes, founding partner of Thorsnes Bartolotta McGuire, passed away in June 2019. Visit www.sdcba.org/legendthorsnes to see his Legends of the Bar video.

ADVERTISERS INDEX ADR Services, Inc...................................................................32

Lawyer Referral & Information Service.........................36

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

Law Office of Steven C. Vosseller.................................6

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

Monty McIntyre, Esq............................................................................15 Panish Shea & Boyle ............................................................................52

Gomez Trial Attorneys........................................................8

San Diego County Bar Foundation ......................................16

JAMS..............................................................................................38

USClaims.....................................................................................2

Judicate West...........................................................................42

West Coast Resolution Group........................................13

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

Wheatley Mediation Services........................................10


THE NEW LAWYER DIVISION INVITES YOU TO ITS ANNUAL SIGNATURE EVENT

FRIDAY, AUGUST 16TH 6:00PM-9:00PM THE GUILD HOTEL QUARTYARD 500 WEST BROADWAY, SAN DIEGO, CA 92101

TICKETS: $25 SDCBA MEMBERS, LAW-STUDENTS AND GUESTS BARBUCKS ELIGIBLE LIGHT APPETIZERS. PHOTOBOOTH. NO HOST BAR.

REGISTER: WWW.SDCBA.ORG/WHITEPARTY SPONSORED BY:


PHOTO GALLERY SUMMER SOCIAL SERIES NORTH COUNTY & DOWNTOWN SDCBA members gathered to soak up the sun at the Association’s annual Summer events in North County and Downtown on June 26 and July 10. Downtown Summer Social Photos by Douglas Gates Photography

L-R: John Patterson, Laura Hauf, Matt Mohun, Shawn Peddycord, Jeff Reichert, Alejandro Morales, Mary Ellen Attridge

Renee Stackhouse, Victor Bianchini

Joe Klusman, Mikaela Sloan

Kristina Fretwell, Kaitlin Preston

L-R: Lilys McCoy, Christopher Reilly, Andrew Steiger, Macy Valdes

L-R: Melanie Claassen, Elizabeth Carazolez, Briana Reilly, Brenda Lopez

L-R: Julie Kim, Christine Pangan, Britney Malpiede

Gabriel and Phillip Stackhouse

July/August 2019 SAN DIEGO LAWYER 49


PHOTO GALLERY

DISTINGUISHED LAWYER MEMORIAL The San Diego County Bar Foundation honored esteemed lawyers and judges during this annual event on May 22.

Eugene F. Gordon's Family and Friends

Thomas H. Ault's Family John W. Witt's Family and Friends

Paul B. Wells' Family

Gerald "Jerry" McMahon's Family

DIVERSITY FELLOWSHIP PROGRAM PANEL DISCUSSION

SERVING SENIORS

Judges and attorneys shared tips for success and navigating your career path while building your professional reputation in the legal community. Thank you to the wonderful panel and participants who attended.

Judges and attorneys served lunch to seniors in Downtown at Gary and Mary West Senior Wellness Center on June 6.

2019 Fellows and Participating Firms

50 SAN DIEGO LAWYER July/August 2019

Front L-R: Judge Matt Brower, Judge Evan Kirvin, Judge Matthew Braner, Judge Laura Miller Back L-R: Kelsey Hotchkiss, Megan Moore, Jerri Malana, Judge Robert Longstreth, Britney Malpiede, David Majchrzak, Frank Pabst


MEMBERS CAN SAVE THOUSANDS OF DOLLARS on everyday services from these trusted SDCBA partners. We’ve negotiated these great deals for you. Start saving today!

Premier Provider INSURING LAW FIRMS ONE POLICY AT A TIME

SAVE 10%

on Ruby's virtual receptionist service, with no setup fee

TAKE UP TO 25% OFF

10% DISCOUNT

on Law Practice Management software, plus free trial and training

on Lenovo PC product purchases online

SAVE! JUST $205 FOR A STANDARD ROOM

FREE NIGHT & WEEKEND PARKING at the lot at Union and B Street

GET EXCLUSIVE MEMBER DISCOUNTS on car insurance

FREE:

SAVE 10%

on fully managed technology solutions .

SAVE UP TO 30%

standard processing fees on transactions with LawPay payment processing

and save 15% on upgrades too

Enjoy exclusive member discounts on a full line of coverage for your practice, including XL Catlin, The Hartford, and Berkley Insurance Company.

Scanner with Remote Deposit Service Interest bearing personal checking No 1st year fee commercial credit card No fee Business Line of Credit

GET 10% OFF on over 30,000 products online

SAVE UP TO 40% on UPS shipping

SAVE UP TO 25% ON CAR RENTALS

Discounted rental rates for business or pleasure travel

15% DISCOUNT

on thousands of books and periodicals from the ABA

FREE

Daily newsfeed with practice-specific global, national and local news, custom-tailored to your interests

NEW MEMBER BENEFIT: Save Thousands On Your Next Sharp Office Printer! Save a minimum of 50% (thousands of dollars!) off MSRP on your next Sharp multifunction printer (MFP) for your firm. The Sharp brand is known for rock-solid dependability and beautiful quality printing, day in and day out. Plus, save on ongoing service and maintenance from Copy Link, with a guaranteed four-hour response time. Upgrading is easy too. Copy Link will send your old leased printer back for you!


R E F E R R A L S T H AT

REALLY PAY OFF OVER $2 BILLION IN VERDICTS AND SETTLEMENTS SINCE 2010

PANISH SHEA & BOYLE

LLP

OVER $200 MILLION IN REFERRAL FEES PAID SINCE 2010

OFFICES IN CALIFORNIA AND NEVADA The attorneys of Panish Shea & Boyle LLP have obtained some of the most significant verdicts and settlements in U.S. history. With 20 eight-figure and nine-figure verdicts in the last 10 years, no other California or Nevada plaintiff’s firm wins this big, as often, as Panish Shea & Boyle LLP.

The Firm has the resources, experience and skills to litigate the most complex cases for individuals and families who have suffered an injury or death because of the wrongful acts of others and handles cases throughout the country. Firm attorneys are licensed in many states and the firm welcomes joint ventures with lawyers who want to stay more actively involved in a case.

WE MAXIMIZE THE RECOVERY TO OUR CLIENTS, WHICH MAXIMIZES THE REFERRAL FEE TO YOU.

E X P E R T I S E • Wrongful Death • Catastrophic Personal Injury • Defective Products • Trucking Accidents • Motor Vehicle Accidents • Industrial Accidents • Dangerous Conditions • Aviation & Railway Disasters • Government Liability • Brain & Spinal Cord Injuries • Automotive Defects

WWW.PSBLAW.COM | TOLL FREE 877.800.1700