San Diego Lawyer November/December 2023 by San Diego County Bar Association

® NOV/DEC 2023

Veterans and the Law

FEATURING Military Court Diversion Programs Incredible Turnout in the 'Fat Leonard' Case Military Family Law

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OUTGOING EDITOR'S NOTE by Gayani R. Weerasinghe

PRESIDENT'S COLUMN Was There Honor in My Service? by Melissa Johnson

LAW SCHOOL COLUMN by Coleman Fuquea

ETHICS Snitch or Not Snitch by Edward McIntyre

TECHNOLOGY Tech Tips and Tidbits by Bill Kammer

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WHY I LAWYER by Stephanie J. De Jesus MEET SHANNON STEIN, THE 2024 PRESIDENT OF THE SAN DIEGO COUNTY BAR FOUNDATION SDCBA MEMBER PROFILE Get to Know Tanya M. Schierling

DISTINCTIONS AND PASSINGS Community members honored and remembered for their achievements

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MILITARY COURT DIVERSION PROGRAMS by Harrison Kennedy

MILITARY FAMILY LAW by Koryn Sheppard

INCREDIBLE TURNOUT IN THE 'FAT LEONARD' CASE by Michael L. Crowley

ARTICLES

ART, WHISKEY, AND THE BALANCE BETWEEN INTELLECTUAL PROPERTY AND FREE SPEECH by Sara Gold MEET OLLIE, SAN DIEGO COUNTY'S ONLY COURT FACILITY DOG by Isaac Jackson

FIVE WAYS TO SOUND MORE HUMAN by Ian Pike

REVOLUTION REVISITED by George W. Brewster Jr.

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SAN DIEGO LAWYER

November / December 2023

OUTGOING EDITOR'S NOTE By Gayani R. Weerasinghe

Storytelling: a sense of belonging and being seen. Attorneys are always being asked to dedicate time to different causes, committees, and organizations. Deciding where to spend time and energy can be difficult. There are many worthy causes and organizations. To be fair to ourselves and others, it is not good to overcommit and under-deliver. Choose with your heart, and say yes when you can combine your skills and passion with a cause. Four years ago, I joined the San Diego Lawyer (SDL) editorial committee because I saw it as a way to address conscious and unconscious biases through storytelling. If you are reading this, you likely know this is the main publication that the SDCBA sends to each member. I wanted to be part of the group at the table making the decisions on what stories we cover, who covers these stories, and how they are shared with our community. I remember reading the article “Roxy Is Black” by Roxy Carter, published in July/August 2020, and being moved by the experiences of a fellow attorney, an SDCBA Board member who shared what it was like to be a Black woman in San Diego. Carter recounted a frightening racist encounter on the sidewalk in Clairemont. Making Carter’s experience even more intolerable was the forced silence she felt later that day, as she shared her story with colleagues who appeared to be uncomfortable and therefore brushed it aside to speak of other unrelated topics. I applaud her courage to share the story in the wake of Ahmaud Arbery’s murder in 20204, because these terrifying and racist experiences are happening in our community, to our colleagues, not somewhere outside with no effect on us. Further, I am glad Carter shared how she felt when her colleagues changed the subject. Whether it is intentional or not, a reaction from a colleague or loved one can have a lasting effect. For example, feeling like you belong and are seen and heard, or feeling like an outsider, alone and unsupported. By bringing awareness through stories, we can do better for ourselves and each other. Representation matters. An author’s background matters. And whether the stories are told in an active or passive voice matters. I remember as a kid in junior high reading “Night” by Elie Wiesel. It had a lasting effect on me as

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November / December 2023

I read his account of surviving the Nazi death camps. Stories that deeply touch our hearts, stay with us, and encourage us to empathize help us to be better allies so we can show up and do better. Volunteering and being part of a group helps us grow, share our talents, learn new things, and bring a sense of belonging. Working with the SDL editorial committee for these past four years, I learned how the magazine is put together and the thought processes that go into deciding the stories. If you love writing and advocating through storytelling, I encourage you to think about volunteering for the editorial committee or offering to write a story because you never know whose life you will change or touch with your story. To paraphrase Brené Brown, vulnerability helps us create better relationships; however, we need the courage to show up and be seen. Attorneys are great at advocating for others, but we also need to advocate for ourselves. Seeing my name or picture may not tell you I am a corporate and intellectual property law attorney, an editor, a scientist, an advocate, and so much more. As an author and an editor, I have had the opportunity to share my experiences, and the privilege of providing a platform for colleagues and communities to tell their stories from their perspectives. Throughout this year, we brought stories demonstrating intersectionality, our theme for 2023. As the outgoing editor of SDL, I am proud to be part of this committee, and I hope the stories we shared made you curious and/ or brought more awareness. Whether it’s about colorism and the remote bar exam, the struggle of Iranian women, pay transparency, or the Rewind column looking at Bar history, there were many different insightful articles. It is a chance for our community to hear, see, and learn about the experiences of our fellow colleagues and things that are happening in our lives. Gayani R. Weerasinghe (gayani@lawgrw.com) is an Intellectual Property & Business Law Attorney, helping entrepreneurs, startups, and biotechs with their transactional needs. 1. "While George Floyd's murder took place on May 25th, 2020, due to the publishing deadlines for the SDL issue being earlier, this article was written referencing Ahmaud Arbery's murder that took place on February 23, 2020."

SAN DIEGO LAWYER EDITORIAL COMMITTEE

Issue 6, November/December 2023

Issue no. 6. San Diego Lawyer® (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is (619) 231-0781. The price of an annual subscription to members of the San Diego County Bar Association 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 ©2023 by the San Diego County Bar Association. All rights reserved. Opinions expressed in San Diego Lawyer are those of the authors only and are not opinions of the SDCBA or the San Diego Lawyer Editorial Committee. In addition, information presented in this magazine is for educational purposes only and should not be construed as legal advice. For your specific questions, please seek advice from counsel. Interested contributors may submit article ideas to the editors at www.sdcba.org/SDLidea for consideration. San Diego Lawyer reserves the right to edit all submissions, contributed articles and photographs at its sole discretion.

Co-Editors Genevieve A. Suzuki

Gayani R. Weerasinghe

Editorial Committee Eric Alizade George Brewster Jodi Cleesattle Sara Gold Wendy House Julie Houth Rafael Hurtado

Isaac Jackson Edward McIntyre Michael Olinik Stephanie Sandler Wilson Schooley Andrea Warren

SAN DIEGO COUNTY BAR ASSOCIATION Board of Directors President Melissa Johnson

Secretary Robert M. Shaughnessy

President-Elect Stacey A. Kartchner

Treasurer Fanny Yu

Immediate Past President David Majchrzak Directors Leslie Abrigo Michael L. Crowley Jason Evans Michelle A. Gastil Nicole Heeder Brandon Kimura

Tatiana Kline Brenda Lopez Angela Medrano Spencer Scott Cynthia L. Stratton Timothy G. Williams

Diversity, Equity, & Inclusion Division Representative L. Marcel Stewart New Lawyer Division Representative Stephanie Pengilley SDCBA Staff — San Diego Lawyer Executive Director Bill Baldwin

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

Director of Marketing & Outreach Ron Marcus Senior Designer Attiba Royster

Content and Publications Editor Savanah Tiffany Marketing Communications Manager Nicole Behar

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November / December 2023

PRESIDENT'S COLUMN BY MELISSA JOHNSON

WAS THERE HONOR IN MY SERVICE?

grew up in a small town in New Jersey, about 30 miles from Philadelphia. We love our Eagles and Phillies, but there was no tolerance for LGBT people. To survive and thrive, I knew that I must leave. Though I could have gone to any of a few local colleges on a softball scholarship, that was not far enough away, but I did not know where to go. The answer came when I skipped my high school study hall period and took the Armed Services Vocational Aptitude Battery (ASVAB). I do not remember why I chose the Air Force, but less than two months after I graduated from high school, I was off to basic training at Lackland Air Force Base in Texas. After completing training, I was stationed in England, where I spent my time working, traveling to play softball on the Air Force team, traveling on my days off, and taking college classes. I was an outstanding service member. I worked hard in a male dominated environment, I was getting my degree, I wanted to get my commission, and I wanted the Air Force to send me to law school. There was no question in my mind that I would have been a lifer; not serving just 20 years, but probably 30 or 35. There is no doubt in my mind that I would have retired at least as a Lt. Colonel, or maybe even Colonel. I know these things because I am an overachiever; I make and accomplish goals and then reach for more. Then, suddenly, my life changed. I was hauled off to the Air Force Office of Special Investigations (OSI) and grilled about my sexual orientation. I was lumped in with

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a few dozen servicewomen whose names were dropped by someone I barely knew as part of a deal to avoid prosecution for selling drugs. I was terrified, but I denied the allegation of my sexual orientation. Over the following week, I thought a lot about my future. I figured that I could weather the current investigation and continue my service. But I also thought about someone I knew who had been in the Air Force for 18 years and spent every day during the twilight of her career scared to death that someone would discover her sexual orientation and she would be discharged. I thought about living in denial, or not talking to anyone about who I am, and hiding in the shadows. But could I do that for 20 or 30 years? And did I want to do that for 20 or 30 years? I thought about the consequences if I continued to serve, and if I was investigated again, which seemed more likely because I now wore a target. The longer I served, the higher the stakes, because if I were involuntarily separated after serving a day less than 20 years, I would receive no retirement and no benefits — nothing. And no matter how long I served over 20 years, if the character of an involuntary discharge was other than honorable conditions, I would receive nothing for decades of service except a deadly black mark on my record. If I was fortunate enough for the Air Force to send me to school, I might have received a bill for the value of my education. And who did I think I would be fooling? I was a picture-perfect image of the stereotypical lesbian.

RAF Mildenhall Police B Flt, 1982

I decided that I did not want to live in denial, fear, or in hiding, and with potentially so much to lose, at the ripe age of 19, I went to my commander and disclosed my sexual orientation. Overnight, I went from being an outstanding servicemember to having my security clearance revoked, and I was relegated to picking up trash and cleaning toilets on base until I was sent back home. My self-esteem had never taken such a hit. I was devastated and felt worthless and hopeless. To add insult to injury, when relatives (one, a Purple Heart recipient) picked me up at McGuire Air Force Base, the first thing they said was that they knew why I got kicked out; it was shameful and sinful; they would not talk about it; and I should not talk about it either. And my great aunt ,who had treated me like a granddaughter, spent the rest of her life not acknowledging me. Fortunately, my mom and dad were supportive, but they had no idea that their strong, happy, ambitious, and eager kid was now broken beyond belief. It took decades — literally decades — for me to talk to anyone about my military service because there was no honor in the way it ended. Even now, the hurt is as real as it was 40 years ago. My military experience taught me that I am vulnerable yet incredibly resilient. And it shaped

my law practice — there were no laws to protect me when I was involuntarily discharged from the Air Force, and I committed my practice to representing workers in harassment, discrimination, retaliation, and wage claims. I was denied the opportunity to continue my military service, but my desire to serve others has been undeterred. I was recently installed on San Diego LGBT Pride’s Veterans Wall of Honor, which is as proud as I have ever been of my military service since my unceremonious discharge. As with many of the honorees who came before me, my selection may have less to do with my military service than the successes I have achieved since my discharge, and I am grateful to be in such distinguished company. Veterans Day is the time to thank military veterans and celebrate their service. On Veteran’s Day, I am sometimes happy, sometimes sad, and sometimes downright angry. Even so, I celebrate all who served, and I honor their sacrifices.

Melissa Johnson is a plaintiff’s employment lawyer and a partner at Johnson Heeder LLP. Her practice focuses on discrimination, harassment, retaliation, executive compensation, and representation of public employees.

SAN DIEGO LAWYER

November / December 2023

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LAW SCHOOL COLUMN BY COLEMAN FUQUEA

f you had told me ten years ago that I would be attending law school and pursuing a career as a lawyer, I would have thought it was a joke. My childhood dream was to be an officer in the United States Marines Corps. My father was a Marine Corps Officer for 29 years, and because of this I moved around a lot growing up. I moved nine times and went to at least as many schools before I finally graduated high school. Throughout all of that, it was the Marine Corps that brought me a sense of community and felt like home. I was in the fourth grade on September 11, 2001, and grew up watching my neighbors, my friends, and my family constantly deploying to both Iraq and Afghanistan. A lot of it was hard to understand when I was young, but to me, it was normal, and I felt the sense of purpose that it instilled in my community. It also instilled in me a sense of duty, honor, and service, so when I went to college it was on a Naval Reserve Officer Training Corps Scholarship to join the Marine Corps.

The University has been incredibly veteran friendly and has done a great job helping me transition out of the Marine Corps and start my new career. Upon starting law school, I was enrolled in study groups for my core classes which really provided the support I needed to not feel like a complete imposter after being out of school for eight years. The University has also been an incredible opportunity for me to grow both personally and professionally. I was also able to enroll in the University’s Master of Business Administration program in pursuit of a dual degree. I have loved the academic challenge of law school and I appreciate being in an academic environment again. It is great to be surrounded by so many intelligent and motivated people and I am constantly impressed by my peers. I will say that I am fortunate to be able to lean on the soft skills I learned in the Marine Corps, such as time and stress management, because I don’t know how I could be successful without that experience.

I spent seven and a half years as an artillery officer in the United States Marine Corps. But as I realized that I had completed my childhood goals and dreams, I began to look for the next challenge in my life. After speaking to some of my mentors at the time, I decided that law school presented the biggest challenge and the biggest opportunities. It also presented an opportunity to pursue a challenge that still fits my core beliefs of duty, honor, and service. My law school journey started when I was lucky enough to be accepted to the University of San Diego School of Law.

As I continue through my law school journey, I am so glad it is here at the University of San Diego. I am glad that I can start to build a career based on my foundational values of duty, honor, and service. Coleman Fuquea is originally from North Carolina and spent seven and a half years on active duty in the United States Marine Corps. Coleman’s goal is to pursue a career as a transactional attorney and explore the world of venture capital and private equity.

We want to hear from you. San Diego Lawyer welcomes article submissions from practicing attorneys and industry experts on various lawrelated topics. Interested contributors can view guidelines and submit their ideas using the form at www.sdcba.org/ SDLidea. We also highly encourage the participation of diverse authors, including (but not limited to) people who have less than five years of legal practice, women, people of color, people with disabilities, and people who identify as LGBTQ+. Please read posted submission criteria carefully. Publication cannot be guaranteed, but the SDCBA appreciates and will consider all article submissions.

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November / December 2023

ETHICS BY EDWARD McINTYRE A recurring series where fictional characters discuss real ethics scenarios. Macbeth, a long-recognized expert in legal ethics, professional responsibility, and the law of lawyering is joined by Duncan, his nephew, and Sara, the very bright newest member of the firm.

SNITCH OR NOT SNITCH

CALIFORNIA ADOPTS RULE 8.3 Illustration by George W. Brewster Jr.

Matt Jenkins, breathless, hustled into Macbeth’s office. “Thanks for seeing me. Sorry about the short notice.” “Glad to do it, Matt. Let’s move to the conference table. Relax. I’ll call the brain trust.” With Sara and Duncan seated, Macbeth started. “What’s on your mind, Matt?” “Just learned we’ve gotta rat out other lawyers.” “Not sure I’d use the phrase ‘rat out.’ But some lawyers do refer to the new rule as the ‘snitch rule.’” “Whatever you call it. What’s going on?” Macbeth nodded to Sara, who began explaining. “The Supreme Court adopted rule 8.3 for California. It’s got a couple of parts. First, it focuses on a lawyer who knows credible evidence that another lawyer committed a criminal act. Or engaged in dishonesty, fraud, deceit, misrepresentation, misappropriation. Something that raises a substantial question about that other lawyer’s honesty, trustworthiness, or fitness.”

“The rule says, ‘without undue delay.’ No specific deadline. But a comment to the rule says that means reporting as soon as the lawyer reasonably believes reporting won’t cause material prejudice to a client’s interests.” Macbeth interrupted. “We’ve always had the ability to report misconduct. Just weren’t required to until rule 8.3 took effect.” “When’d that happen?” Sara picked back up. “The Court adopted the rule in late June. It became effective on August 1.” “Any exceptions?” “Some, but they’re limited. If the information’s governed by client confidentiality obligations, it’s outside the reporting requirement. There’s also mediation confidentiality. Attorney-client privilege. Information learned in a substance misuse or mental health program. That’s about it.” “Confidentiality? How broad’s that?”

“Then what?”

“Client confidential information governed by rule 1.6, rule 1.8.2, section 6068(e).”

“A lawyer with credible evidence must inform the State Bar. Or another tribunal with jurisdiction to investigate and act.”

Duncan added, “Also section 6234, information provided to an attorney diversion and assistance program. The Court doesn’t want to prevent lawyers from seeking help.”

“Wow! Suppose I know something. When do I have to do it?”

Sara nodded. “Good point, Duncan. Also, if a lawyer consults another lawyer. For example, to find out whether

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the lawyer has a duty to report. Or if a lawyer knows about misconduct while a member of an ethics hotline. Again, so lawyers will seek guidance. But, otherwise, the obligation’s broad.”

“Hey, I know guys who will.”

“What happens if, say, I know something and just decide to keep it to myself. Who’s to know?”

Bar report could subject that person to discipline or other penalties.”

Macbeth jumped in. “The rule requires reporting. So willful failure to report the kind of misconduct it covers could subject that lawyer to possible discipline.”

“I still don’t like it.”

“Ouch!” Macbeth continued, “Assume the State Bar investigates a lawyer. For example, for misappropriating client funds. During its investigation, it learns the lawyer’s partner had credible evidence of the conduct but did nothing. Didn’t report it.” “OK.” “The State Bar could investigate and discipline the partner. That’s the hammer the State Bar or another tribunal has.” “So now we’re all going to be running around ratting each other out? I know you don’t like the term, Macbeth, but that’s what it sounds like.” “Not so fast, Matt. First the conduct must be serious. A criminal act or dishonesty, fraud, misrepresentation, misappropriation. Second, every other jurisdiction has some version of rule 8.3. Many have had it for years. Most haven’t seen it abused.”

Sara responded, “One of the rule’s comments reminds us that filing a false and malicious State

Macbeth nodded. “Many don’t. The revision commission didn’t include it in its 2018 version of the rules. The Court didn’t require it back then. But publicity about serious misconduct appears to have changed the State Bar’s and Court’s thinking.” “Maybe I’ll put blinders on. Keep my head down.” Macbeth cautioned, “The rule doesn’t require us to investigate each other. But we can’t ignore credible evidence of misconduct. Let’s face it, Matt. If we don’t police our profession, someone else will. We may like that less.” “I guess,” a deflated Jenkins grumbled. He got up and quietly left.

Editorial Note: The State Bar website, calbar.ca.gov., has the rule, comments, a FAC and hypothetical scenarios. It warrants careful review.

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

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

TECHNOLOGY BY BILL KAMMER

TECH TIPS AND TIDBITS 23andMe And Who Else? Long ago, in what we thought was a simpler age, many engaged in listserv discussions and posted various messages and entries on internet sites. Back then, no one realized that information might remain forever available. Unfortunately, it has — what isn't immediately available with a Google search is petrified forever on the Internet Archive’s Wayback Machine. More recently, others have discovered their personal information has been collected and then exposed, hacked, or scraped from services such as Facebook, Twitter, and LinkedIn. Users of certain internet resources often provide the host platform with personal identification information such as addresses, phone numbers, employment details, and credit card information. The risk some of that information might be available to hackers is seldom considered when signing up or consenting to these services. A recent example is the theft from well-known genetic testing company 23andMe. That theft included names, dates of birth, sex, geolocation, photos, and other PII, as well as generalized genetic data. Reports estimate that 4.1 million of these records are for sale on the dark web.

That was basically the opening salvo and first fame of EDRM. However, in recent years, they have expanded the scope of their contributions to the legal profession in several ways, emerging as the leading standards organization in eDiscovery. Those include several significant recent announcements. Attorneys have wrestled with issues presented by the almost innumerable duplicate emails found within the data kept by their clients. Because of technical reasons such as email formats and time-zone differences, eDiscovery tools could not deduplicate all copies before passing them to linear review platforms. With that in mind, EDRM has developed a method for cross-platform email identification. Its project produced a simple solution: using a hash value of an email Message ID metadata field named the EDRM Message Identification Hash (MIH). Currently, leading vendors such as Reveal, Relativity, and Nuix all support the MIH in their platforms. Craig Ball explained the problem and the elegance of the solution at https://craigball.net/2023/02/16/introducingthe-edrm-e-mail-duplicate-identification-specificationand-message-identification-hash-mih. All practitioners

More detailed information is posted at https://www. bitdefender.com/blog/hotforsecurity/millions-of-new23andme-genetic-data-profiles-leak-on-cybercrimeforum/ and https://www.wired.com/story/23andme-dataleak-gets-worse-security-roundup.

need to take advantage of this development is to include the MIH among the metadata ordinarily produced as load files. More details can be found at https://edrm.net/edrmprojects/dupeid. Another recent EDRM project is its development of a privilege log protocol. Historically, practitioners have seen

Electronic Discovery Reference Model (EDRM) Many are familiar with the EDRM model that illustrates the progressive steps in a typical eDiscovery evolution.

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privilege logs ranging from extreme simplicity to perverse extravagance with only occasional inclusion of categorical logs of similar documents. You can review the new protocol and an explanatory background at https://edrm. net/edrm-projects/privilege-logs.

Finally, EDRM has recently announced and asked for

Forum at https://www.sandiegoesiforum.com.

public comment on its draft General Data Protection

The articles can be downloaded from the folder

Regulation Guidelines. Given the privacy concerns of

“Artificial Intelligence Primer.”

various governments throughout the world, this project team was attempting to develop a code of conduct for

For those with a little time and a desire to learn more about

cross-border discovery. A principal concern propelling that

AI, you can pay for courses, obtain “degrees,” and go to

effort was developing some protection for international

boot camps. But there are more than a dozen free,

litigation teams. Teams were trying to comply both with

beginner to intermediate-level courses available from a

European privacy standards and with U.S. discovery

collaborative effort by OpenAI and DeepLearning:

obligations. The comment period recently closed, and a

https://www.deeplearning.ai/short-courses.

final version should be published soon. Further information is available at EDRM’s website https:// edrm.net/edrm-projects/gdpr-project and at https://www. einpresswire.com/article/663201596/edrm-announcesnew-gdpr-guidelines-released-for-public-comment.

The Snake Oil Sale Continues

California Discovery Becoming Disclosure? On September 30, Gov. Newsom signed Senate Bill 235. To a certain extent and modeled in part on federal rule 26(a), the Bill mandates an early disclosure of information and documents. Although it extends the original 45 days to 60, it requires the exchange of more comprehensive information and documents. It also increases the penalty

The Artificial Intelligence drumbeat is obvious, included

from $250 to $1000 for non-compliance. Finally, the

in every communication from an eDiscovery vendor,

provisions require the disclosure before the deadline

search engine company, or software vendor. “AI for all”

unless the parties stipulate otherwise.

is a recurring theme, but thus far, there is little evidence of functional uses commensurate with the costs of the

Whether the changes will affect the desired results of

processes. Perhaps legal professionals should start with

simplicity and lower costs is already the subject of debate

a firm understanding of AI, how it functions, and how

and some skepticism. Standby for further developments.

it might be reasonably implemented. Some background would be helpful before trying to qualify as a “prompt engineer.” Maura Grossman is a research professor at the University of Waterloo and a frequent lecturer on machine learning and AI topics (https://grossman.uwaterloo.ca). Her many

Additional resources include https://www.law. com/legaltechnews/2023/10/27/californiasnew-disclosure-requirements-look-to-reign-indiscovery-costs-will-it-work and https://www.law. com/therecorder/2023/10/02/newsom-signs-billincreasing-sanctions-for-discovery-abuses.

publications include “Artificial Intelligence and the Courts” and “The GPT Judge.” Copies of these AI articles and a variety of others are in the Library of the San Diego ESI

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

SAN DIEGO LAWYER

November / December 2023

ART, WHISKEY, AND THE BALANCE BETWEEN INTELLECTUAL PROPERTY AND FREE SPEECH U.S. SUPREME COURT RULINGS RESTRICT FAIR USE DEFENSES By Sara Gold

n two intellectual property cases heard before the U.S. Supreme Court last term, the Court strengthened the burden required to prevail on a fair use defense to copyright or trademark infringement. In the copyright case, Andy Warhol adapted and recolored a 1981 photograph of musician Prince without permission and licensed it years later for publication in a Prince tribute magazine. That was not enough to avoid liability for copyright infringement. In the trademark case, a dog toy company created a “Bad Spaniels” toy imitation of a Jack Daniel’s bottle, mimicking multiple Jack Daniel’s trademarks, including the trademarked shape of the bottle itself. Here, the toy company’s claimed intent to parody, without providing any specific commentary on the famous whiskey brand, was not enough to merit blanket fair-use protection as an expressive work. Together, these two cases show that the First Amendment does not necessarily give others a free pass to borrow, parody, or adapt copyrighted or trademarked material, signaling the potential strengthening of intellectual property rights relative to free-speech interests.

Copyright Fair Use: Andy Warhol Foundation v. Goldsmith Pursuant to the Copyright Act, courts evaluating a fair use defense are required to weigh four factors, which include 16

SAN DIEGO LAWYER

November / December 2023

the “purpose and character” of the accused work. Evaluating this particular factor alone, the Supreme Court in Goldsmith tightened the standard required for a new work to acquire a “purpose and character” that is meaningfully different from the plaintiff’s copyrighted work. Affirming the Second Circuit Court of Appeals, the Supreme Court held that the “purpose and character” factor weighed against Warhol’s claim of fair use. As Justice Sotomayor’s majority opinion explained, transformation of purpose and character requires “more than the imposition of another artist’s style on the primary work.” Simply making something that is interesting or creative, without clear social commentary, is usually not enough to outweigh the owner’s exclusive right to control their intellectual property. In this case, the Court was particularly persuaded by the fact that the essence of the original photograph remained intact, and both versions shared the same ultimate purpose of illustrating print journalism about Prince. Of course, copyright fair use is always a somewhat subjective inquiry, giving rise to the dissenting opinion of Justices Kagan and Roberts, who believed that Warhol’s use was fair. In the end, potential fair users should understand that simply taking a copyrighted work and changing it, for reasons unrelated to the message of the original, is less likely to qualify as fair use.

Trademark Fair Use: Jack Daniel’s v. VIP Products In this case, the Court limited the scope of the Rogers test, a judicially created fair-use doctrine by which “expressive works” accused of trademark infringement could sidestep the prima facie infringement test and gain nearly automatic fair-use immunity. Derived from the seminal Second Circuit case Rogers v. Grimaldi, the Rogers test has in the past liberally permitted trademark uses in expressive works so long as the use was artistically relevant and not explicitly misleading. When this test has been applied, most trademark uses in expressive works were permitted as fair use without regard to the plaintiff’s prima facie case of trademark infringement. Reversing the Ninth Circuit Court of Appeals, the Court held in Jack Daniel’s that the Rogers test should no longer be applied to all “expressive works,” but rather only to instances where the defendant does not use the trademark for a source-identifying purpose. The holding aligns with the core function of a trademark which, per statute, is to identify the source of goods or services. In the majority opinion authored by Justice Kagan, the Court held that although the Bad Spaniels dog toys were humorous, the toy company’s creation of a mock product brand to identify its mock products was a sourceidentifying use — even if it was all in jest. That, according to the Court, took the use outside of Rogers. In order to prevail on remand, the defendant will be required to prove under the traditional multifactor analysis that consumers are unlikely to mistakenly assume that the Bad Spaniels toys are created, or authorized, by Jack Daniel’s. Future trademark parodists can be warned that no matter how creative or clever the use, using a trademark as a trademark could very well be considered infringing.

Final Thoughts In view of the Court’s latest precedent, using someone else’s content simply to make it different, better, or funnier may not justify immunity from copyright or trademark restrictions. Viewed together, the two rulings make clear that more than a witty idea or creative impulse is necessary to immunize the utilization of copyright- or trademarkprotected material. Even if there is some degree of creativity involved, would-be fair users should avoid using

"In copyright cases where the defendant claims fair use, parties will more often be faced with lengthier litigation of the four fair-use factors and their complexities." someone else’s material for the same purpose — whether it’s using a magazine photograph for a different magazine, or using another product’s trademarked identifier on a different product. Although fair use remains a viable defense, the decreased likelihood of early dismissal on fair-use grounds could make unlicensed copyright and trademark uses financially riskier. In copyright cases where the defendant claims fair use, parties will more often be faced with lengthier litigation of the four fair-use factors and their complexities. Meanwhile, in trademark cases where the Rogers test is unavailable, defendants will need to brave the circuitspecific multifactor tests in order to prove that the accused use — in light of parodic, creative, and other expressive elements — is ultimately unlikely to confuse consumers. In either instance, the potentially longer road to finality will likely result in more pretrial settlements, many of which will require the discontinuation of the arguably offending uses. Though the long-term effects of the rulings are yet to be seen, the new precedent may bolster the value of intellectual property ownership while also encouraging more prudence as to uses that are not clearly justified by fair use or First Amendment interests.

Sara Gold, founder of Gold IP Law, focuses her practice on intellectual property registration, litigation, and related services. A former journalist, Sara also enjoys legal academia and has been published in journals across the country.

SAN DIEGO LAWYER

November / December 2023

riminal prosecution is rarely fun. Often criminal trials force victims to relive some of the most traumatic events in their lives. Occasionally,

however, you can find a golden ray of sunshine even in your darkest days. For many child victims in San Diego County, that golden gleam comes in the form of a 9-yearold golden retriever named Ollie. Ollie is a certified facility dog — the only facility dog in the entire District Attorney’s office — and his job includes providing support to witnesses and victims of crime during interviews, court visits, and moments when they take the stand. According to Pawsitive Teams, the local nonprofit that trained Ollie, facility dogs are: “[T]rained in obedience and specialty cues” and are used in work settings “under the direction of the

MEET OLLIE, SAN DIEGO COUNTY’S ONLY COURT FACILITY DOG

professional partner who has been trained to use specific techniques which enable the dog to serve as a tool and a motivator… . The dog must be receptive to accepting leadership and direction from the trained handler, have the ability to maintain a calm and polite manner in all situations, and be adaptable to interact with a variety of people in different situations when given a command by the handler.” Ollie and his partner, Magen Queen, currently work out of the North County Branch of the District Attorney’s Office, but they travel around the county providing support to victims of all ages. Magen works for the DA’s office full time as a Victim Advocate. Magen was paired with Ollie in 2017 after a lengthy application, vetting, training, and transition process. The process included interviews with Magen, her immediate family, and the family dog. After a four-to-six-week process, Magen was approved to partner with Ollie and had to undergo a three-month transition period. And that was just the beginning. To maintain his status as a facility dog, Ollie must be recertified every two years. To be recertified, Ollie must pass several tests, including not reacting when a metal clipboard is dropped behind him, abstaining from savory treats until prompted by his partner, and staying within 5 pounds of his prescribed weight. This level of training and certification is one of the factors that separate facility dogs from therapy dogs. Even though certification for therapy dogs is not as intense, in San Diego County, there are still only eight therapy dogs

SAN DIEGO LAWYER

November / December 2023

that volunteer as court support dogs. Ollie is the only

The presence of dogs in the courtroom is relatively new.

facility dog who works full time in the courthouse, and he

Less than 11 years ago, the California Appellate Court

is often overbooked.

ruled that therapy dogs could accompany witnesses to the stand during trial. In People v. Spence (2012) 212

Although Ollie has worked with victims of all ages,

Cal.App.4th 478, 517, the oldest published opinion on

his focus is child victims. Of the cases Ollie is assigned

the matter, the Fourth District Court of Appeals found

to, 85% are cases where the defendant is accused of

that “[t]he court appropriately exercised its discretion

violating Penal Code section 288(a), lewd acts against

under Evidence Code section 765, subdivision (b) … by

a child under the age of 14. When a child takes the

providing a therapy dog in this exercise of special care

stand, Ollie will usually rest at the child’s feet out

to protect the witness from undue harassment

of the view of the jury, staying close to the child and

or embarrassment.”

providing emotional support. Ollie is trained not to move or cause a disturbance during the testimony, and in the

Since that time, therapy dogs have provided support to

six years Magen has worked with Ollie, she has never

hundreds of victims here in San Diego County, with Ollie

gotten a complaint from a judge of Ollie disrupting court

leading the way. As he approaches possible retirement in

proceedings. This is truly remarkable given how long

the next few years, let us all hope that there will be new

these witnesses can be on the stand. Magen recalled one

facility dogs to carry on his legacy.

case where a child victim was on the stand for roughly 16 hours and, except for the breaks, Ollie laid at the child’s feet the entire time.

Isaac Jackson (isaac.jackson@sdcba.org) is Deputy District Attorney with the San Diego County District Attorney’s Office.

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SAN DIEGO LAWYER

November / December 2023

Why I Lawyer STEPHANIE J. De JESUS

s a first-generation Filipino American growing

During my 2L summer, I did a three-month civilian

up in a strict Filipino household, education and discipline were always at the forefront.

internship for the U.S. Army JAG Corps, XVIII Airborne Corps at Fort Bragg in North Carolina. It worked out perfectly because my brother was stationed at Fort Bragg at the time, so I got the opportunity to spend my summer hanging out with my family and, ultimately, falling in love with a career path I knew was meant for me. Working alongside and learning from hard-working, disciplined, and passionate soldier-attorneys was inspiring; the camaraderie and experience were unmatched. From that point on, I was motivated by the thought of having a career where I would be able to serve my community and serve my country as a dual professional — Army Officer and attorney.

Although I participated in sports and extracurricular activities as a kid, my parents always told me that I couldn’t continue playing sports unless I kept my grades up, so I made sure I focused on school. During my freshman year of high school, I joined the Junior Reserve Officer Training Corps (JROTC) program. My older brother, who was a senior at the time, was the Battalion Commander of the JROTC program. I idolized him, so I figured, “Sure, why not?” On uniform inspection days, I was often made fun of while wearing my green pickle-colored Army uniform, sitting in a classroom full of cool high school kids. But I grew to love it. In my senior year of high school, I became involved in “We The People,” the debate team for my U.S. Government class. We competed at the state level, debating issues about the First and 14th amendments. It was then that I realized I wanted to pursue a career in law. I just wasn’t quite sure what area of practice best suited me. Selfless service and service of others were important virtues in our upbringing. My dad always held a high regard for the U.S. military, specifically for the discipline, respect, and mental toughness it instilled in people. He enlisted in the U.S. Air Force after immigrating to the United States from the Philippines and encouraged my older brother to join the service. My brother and I were always very close growing up, but we got even closer when he deployed to Afghanistan for Operation Enduring Freedom in 2011 during my first year of law school. That terrifying time in my life also piqued my interest in joining the Judge Advocate General’s (JAG) Corps.

After passing the bar exam in July 2014, I joined the Army and was commissioned as an Officer for the U.S. Army JAG Corps. My time in the JAG Corps helped me realize that my true passion was criminal law, and I knew I wanted to continue my career on a path of public service. Although I chose to leave active duty, I still currently serve in the U.S. Army Reserves JAG Corps. The experience I gained as an advocate, leader, and servicemember helped me transition into my civilian career as a prosecutor at the District Attorney’s Office. I lawyer to serve others. Whether that’s in my capacity as a Deputy District Attorney serving the people of San Diego or in my uniform serving our country, I am passionate about helping others, pursuing justice, and making a difference in the community. Stephanie J. De Jesus is a Deputy District Attorney with the San Diego County District Attorney’s Office and a Major in the United States Army Reserves JAG Corps.

SAN DIEGO LAWYER

November / December 2023

MILITARY COURT DIVERSION PROGRAMS By Harrison Kennedy

an Diego County is home to the largest

veterans to a place where they can readjust to civilian

population of Iraq and Afghanistan veterans in

life and effectively deal with the emotional scars of war

the nation. Many who served in combat know

without turning to drugs or violence.

it can be easier to head out to war than to come home and leave the battlefield behind. Unfortunately, a small

The majority of the crimes handled in VTC are DUI- and

percentage of those who volunteered to serve our country

domestic violence-related. A smaller number deal with

turn to alcohol, drugs, and violent behavior when trying

narcotics, theft, and assault. The common denominator

to transition back to “normal” life within our communities.

among all the defendants in VTC is that at some point

In San Diego County, an innovative approach to public

during their past, they volunteered to serve, made it

safety is finding these veterans and helping them to get

through basic training, and endured circumstances in their

their lives back on track.

duties that changed them forever. When they land in VTC, they are given a new mission and an opportunity to

When veterans experiencing duty-related mental illness

regain a law-abiding life. On any given day, between 30

find themselves on the wrong side of the law, two

to 45 veterans are supervised in San Diego’s VTC.

options in California allow for redemption if they seek treatment. All misdemeanors are potentially eligible

Each participant in VTC is hand-selected. They have to

for pretrial diversion pursuant to Penal Code section

meet stringent requirements related to proof of military

1001.80. This requires a time waiver, treatment plan,

service, a valid mental health diagnosis, and a true desire

and regular check-ins with the court for up to two years.

to get right with society. Malingering soldiers and those

After the diversion period, the court may dismiss the case

simply looking for a break need not apply. Once in the

pursuant to Penal Code section 1385, effectively wiping

program, the veterans are placed under the highest

the slate clean; the record of arrest will remain on the

level of supervision in the county. They are given a strict

veteran’s record of arrest and prosecution. This option is

regimen of group therapy, individual counseling, drug

best suited for first-time, relatively minor offenses.

testing, and appropriate medical care.

Other veterans need additional support, structure, and

In San Diego, there is a unique combination of demand

supervision. The Veterans Treatment Court (VTC) became

and resources. Several public and private health care

a permanent part of the San Diego court system in 2015

providers offer cutting-edge treatment for ailments seen

and helps to improve public safety by bringing these

in VTC. While post-traumatic stress disorder (PTSD) is

SAN DIEGO LAWYER

November / December 2023

most common, military sexual trauma (MST), anxiety, and depression are also seen frequently. Programs such as Triple Threat — which addresses the trifecta of excessive alcohol use, drug addiction, and PTSD — and cognitive behavioral therapy (CBT), psychotherapy designed to

VETERANS ASSISTANCE PROGRAMS Veterans Transportation Program (858) 552-8585 Ext. 7572 https://www.va.gov/healthbenefits/vtp/veterans_ transportation_service.asp

change patterns of destructive behavior, have been very effective. A veteran’s time in VTC typically lasts 18 to 24 months.

Provides FREE round-trip transportation from home to the VA Medical Center and to the Mission Valley clinic for patients with medical appointments.

If they successfully complete the program, Penal Code section 1170.9 allows them to get their criminal record cleaned up to make themselves more employable in the civilian world. Approximately 80% find success and graduate. For those who falter, their case is automatically revived, and they are held accountable.

"Former special operators have gone on to open their own businesses or create new products to assist fellow veterans in recovery." One of the most rewarding parts of the VTC program is to sit down at a graduation ceremony and listen to these men and women tell their stories. Surviving war. Struggling with addiction. Ending up in jail for the first time in their life. Finding redemption through accepting help to understand what brought them there. These success stories are not uncommon. After engaging in felony conduct, active duty service members have been able to maintain their career, retire with full benefits, or even get promoted. Former special operators have gone on to open their own businesses or create new products to assist fellow veterans in recovery. Others have simply rejoined their families and made it back to the life they enjoyed prior to struggling with the demons they brought back from the battlefield. Harrison Kennedy has been a prosecutor in San Diego County since 2001. He is currently the Assistant Chief of the Collaborative Justice Division. Harrison is also a Judge Advocate in the United States Army Reserve. He served in Iraq and Afghanistan and is a recipient of the Bronze Star Medal.

Veterans Affairs Healthcare System (858) 552-8585 https://www.sandiego.va.gov/locations Provides certain medical services to eligible military veterans in San Diego County.

Veterans Back to Work https://www.veterans2work.org Provides short term transitional employment opportunities for Veterans in San Diego County, up to 3-6 months working on the freeway.

Women Veterans Call Center (855) 829-6636 https://www.womenshealth.va.gov/WOMENSHEALTH/ programoverview/wvcc.asp Information about VA services and resources including benefits, eligibility, and services specifically for women Veterans.

National Call Center for Homeless Veterans (877) 424-3838 https://www.va.gov/homeless/nationalcallcenter.asp 24/7 confidential access to trained counselors for veterans who are homeless or at risk of homelessness and their family members, friends, and supporters. For a searchable list of more resources, visit 2-1-1 San Diego, keyword “veteran” https://211.my.site.com/s/search#keyword=veteran

SAN DIEGO LAWYER

November / December 2023

amily law practitioners must, to some degree, be legal generalists. The common occurrence of crossover issues with other practice areas is unique

to family law practice. Upon reflection, this intersection makes sense. Family law can touch on all aspects of people’s lives: property, bankruptcy, crimes, injury, and employment, to name a few. Any legal issue that can happen to a person can find its way into a family law case. The intersection of family and military law is especially unique to family law practice in San Diego. With both U.S. Navy and U.S. Marine Corps bases in the county, San Diego

MILITARY FAMILY LAW By Koryn Sheppard

is indisputably a “military town.” Divorce rates among service members are higher than in civilian families. U.S. Census Bureau data indicates that service members have both a higher rate of marriage and a higher rate of divorce than civilians. It is almost inevitable that during their career, the San Diego-based family law practitioner will handle a military family law matter. Service members involved in family law matters are subject to two sets of legal authorities that do not always fit comfortably together: the Articles of the Uniform Code of Military Justice (UCMJ) and California Family Law. These can have an especially punitive effect on service members who face repercussions from the State Superior Court and the military. Actions that may have no effect on a civilian client may result in criminal-like consequences for military clients. Service members who fail to adhere to military regulations face severe penalties from the military. Conversely, the military does not have jurisdiction over military members’ spouses (JAG officers can only prosecute civilians in extremely limited circumstances). The inequity in governing authority and consequences is poignant in domestic violence matters, especially involving mutual restraining orders. The military can subject a service member to a no-contact (NCO) or military protective order (MPO). These have the same effect as a restraining order but without the rigors of legal due process protections or procedural requirements. The Commanding Officer (CO), who may have no legal training or knowledge, issues these orders by completing a two-page DD 2873 form.

SAN DIEGO LAWYER

November / December 2023

There is no investigation into the allegations before issuing the NCO or MPO. Generally, there is a perfunctory or no investigation after the orders are issued. However, these orders can prevent the service member from contact with their children, spouse, or even their home. While the intent is for these orders to function as a “stopgap” allowing the victim time to seek civilian orders, an NCO or MPO can last for an unspecified period, based only on how long the Commanding Officer deems with no hearing afforded the restrained party. Per 10 U.S. Code § 1567(a), COs are required to notify state officials of the MPO and party names each time an MPO is issued. Unfortunately, this procedure is not always followed. In contrast, a Domestic Violence Restraining Order (DVTRO) requires that the restrained party be afforded

"Actions that may have no effect on a civilian client may result in criminal-like consequences for military clients. Service members who fail to adhere to military regulations face severe penalties from the military."

a hearing within 21 days after issuance. Despite the lack of due process, service members do not have the option to disregard these orders. The military could charge

these orders with false claims. Family Court judicial

them with a violation of UCMJ Article 92 or 134 (order

offers may even give weight to these military orders

violation and obstructing justice, respectively).

in subsequent hearings, whether domestic violence hearings or custody hearings.

The Supreme Court’s ruling in Troxel v. Granville (2000) 530 U.S. 57, 65 affirmed a parent’s fundamental right

Legal challenges to military protective orders can be

to the “care, custody, and control” of their children.

successful. In 2013, in a case called SSgt Rios, USMC v.

In Lassiter v. Department of Social Services (1981)

Secretary of the Navy Ray Mabus, et al. (CV 13-1937

452 U.S. 18, 27, the Court noted that “a parent’s desire

ABC), an active-duty member successfully sued a military

for and right to the companionship, care, custody, and

officer based upon violation of his constitutional rights

management of his or her children is an important

stemming from loss of contact with his children due to an

interest that undeniably warrants deference and, absent

MPO in the California Central District Federal Court.

a powerful countervailing interest, protection.”

Family law practitioners with military member clients

The California Court of Appeal, in Ram v. Rubin (9th Cir.

subject to NCOs and MPOs should strongly consider

1997) 118 F.3d 1306, 1310, has stated that because

referring these clients to attorneys with experience with

care and custody of children is a constitutionally

military criminal defense. Even the initial administrative

protected right, a parent cannot be “summarily deprived”

challenge process may be enough for a CO to

of this right without due process (i.e., notice and a

discontinue a CPO or MPO. Family practitioners should

hearing) absent a showing of imminent danger. [And it is

advise judicial officers unfamiliar with the CPO or MPO

noteworthy that the Court in Ram found that depriving

process of the perils of placing any weight into the

a parent of contact with their child for a four-day period,

issuance of a CPO or MPO within the context of family

absent a showing of imminent harm, without a hearing,

law cases.

was unreasonable.] This lack of due process or any procedural protection can benefit the non-service member spouse hoping to gain an advantage in family court. In essence, they can obtain these orders without ever having to prove their case, without any scrutiny or investigation into their claims, and without any consequence for obtaining

Koryn Sheppard has practiced family law for over a decade. She is a Certified Family Law Specialist and an SDFLBA Board member and adjunct professor at Thomas Jefferson School of Law. Ms. Sheppard earned a Juris Doctor from California Western School of Law, and a Bachelor of Arts from the University of California, Los Angeles.

SAN DIEGO LAWYER

November / December 2023

FIVE WAYS TO SOUND MORE HUMAN By Ian Pike

ost lawyers disavow legalese yet can’t stop using phrases like “notwithstanding the foregoing” because, well, that’s how lawyers sound. But clients don’t pay extra for Latin, and nobody ever lost a trial by failing to dazzle the jury with legal jargon. Much as we cherish the following bits of legalese because they make us sound like Oliver Wendell Holmes, ditching the following lawyerisms in favor of plain-English alternatives will go a long way towards making the practice of law sound like something done by actual humans.

The Above-Entitled Case This construction is both cumbersome and vague. There is absolutely nothing wrong with simply using a concrete reference to the matter at hand. If you’re working on the Hydroxycut MDL in the Southern District of California, even if you have the case name written on the first page of a letter, then “Counsel, this concerns the Hydroxycut MDL” beats “Counsel, I am writing you in regards to the aboveentitled case” both in terms of clarity and style.

Herein and Hereinafter Normal people don’t use these little gems. Lawyers use them all the time. They’re usually pointless, and often part of a phrase that is itself wholly unnecessary. Case in point: “As explained herein…” is almost always redundant because the primary purpose of a brief, letter, or other document where “as explained herein” gets used is to explain something substantive. Similarly, you can write “The Teenage Mutant Ninja Turtles (‘The Turtles’)” without a “hereinafter” in the parenthetical, and exactly zero people will be confused by what you mean.

Wherefore and Whereas These pop up in stipulations, contracts, and other documents where parties want to recite or show they agree on one or more basic facts. But imagine reading the average stipulation out loud in court. It’s bad enough to scream “WHEREFORE” at the top of your lungs one time, but parties tend to repeat it in ALL CAPS as a kind of incantation at the beginning of every fact to which the parties are prepared to stipulate. Instead, try, “The parties stipulate

to the following facts: [bulleted list of facts].” Not a single, blood-curdling WHEREFORE is needed or wanted.

The Below Lawyers love writing “see the below,” often without any more context, when we forward an email, but naked references to “the below” sound like you’re talking about some kind of netherworld. In fairness, reading too many forwarded emails can feel like being banished to the netherworld. But, as lawyers, the importance of speaking and writing with particularity is paramount, and if language can be more precise, then it probably should be more precise. Thus, rather than “see the below,” consider “see Bob’s email from last Tuesday” or something that identifies with particularity exactly what information is being called to the reader’s attention.

O-S-V Sentences, aka “The Yoda” This one comes in all shapes and sizes, but generally follows the same basic format of a rule and then a statement in Object-Subject-Verb word order of some party’s inability to satisfy the rule, e.g., “Plaintiff must prove the harassment was severe or persuasive. This she cannot do.” No human being would ever construct a sentence like that. Unless you’re a cute green alien with legendary wisdom and great strength in the Force, don’t use O-S-V word order in legal writing or anywhere. “Plaintiff cannot show the harassment was severe or persuasive” is perfectly adequate, and it doesn’t make your brief look like it was filed a long time ago in a galaxy far, far away.

Bonus: “That” Trust me here. After you finish your next brief, memo, or letter, go through it and remove every “that” from phrases like “the court ruled that the plaintiff” or “the client reports that he.” You can usually free up room for another important sentence, and after a week of purging superfluous “thats” from your writing, you’ll wonder how you ever lived your life differently. Ian Pike is an attorney and an employee of the federal judiciary. He reads a large number of briefs, many of which could be improved.

SAN DIEGO LAWYER

November / December 2023

INCREDIBLE TURNOUT IN THE ‘FAT LEONARD’ CASE By Michael L. Crowley

What follows is the author’s personal account involving the representation of a defendant in San Diego’s U.S. District Court in the case referred to by nearly everyone as the “Fat Leonard” case. (It has its own Wikipedia page.) The criminal prosecutions involved the alleged corruption within the U.S. Navy, described by the Washington Post as "perhaps the worst national-security breach of its kind to hit the Navy since the end of the Cold War." It was nicknamed the “Fat Leonard” case because the main defendant, Leonard Glenn Francis, was quite heavy-set, but apparently never objected to the case being referred to in this manner.

ix and a half years of litigation, a four-month jury

cooperate with us, he won’t get the best of the plea

trial, and guilty verdicts on multiple felonies.

deals, and it’s only going to get worse for him.

Then, 14 months after the verdict, facing

blistering new trial motions after the disclosure of

To my client’s credit, he stood firm to test their claimed

damning documents and reports, the government agreed

evidence, even as daunting, expensive, and dangerous

to vacate the guilty verdicts and offer the defendants

as this proved to be. The defense prepared to meet the

minor misdemeanor pleas with a $100 fine. Why?

challenge, but what we didn’t count on was that the

Because an examination by an independent prosecutor

prosecutors were going to cheat the system. Luckily,

concluded that “mistakes were made.” This is an absurdly

they got caught. Meanwhile, their supposed star witness,

mild statement for what really occurred, even when

Leonard Francis, aka “Fat Leonard,” cut off his GPS

he added that “serious issues” were preventing the

tracking system just before his sentencing and hightailed

government from going forward.

it to South America, where he remains to this day, as far as we know.

In 2017, the 78-page indictment was unsealed. It was what is called a “speaking indictment.” It consisted of

Defense counsel has joked that given Francis’ savant

many allegations ripe for the press to sensationalize,

abilities to manipulate people, first officers of the U.S.

leading to major publications calling it one of the biggest

Seventh Fleet, and then the government prosecutors, he

scandals in Navy history. The only problem is that these

is probably living in the lap of luxury down south. It’s not

allegations could not be proven under the Federal Rules

that there isn’t precedent for it; he lived in a million-dollar

of Evidence.

abode while awaiting sentencing, right under the noses and with the assent of government prosecutors and the

After the unsealing of the indictment, the defense was

court. The defense was repeatedly denied access to the

inundated with terabytes of irrelevant discovery, but

records of the terms of his so-called “house arrest.”

these included a folder labeled “hot docs.” This was the

We do know some facts learned later that he was living

government’s cherry-picked documents they claimed

in luxury, guarded but unguarded by the security officers

proved their case. The prosecutors put on the full-

whom he was paying himself.

court press, literally calling up and chanting to counsel, “tick-tock, tick-tock.” If your client doesn’t come in and

Additionally, he had his family either visiting on a regular basis or living in the same luxury. We know this

SAN DIEGO LAWYER

November / December 2023

because eyewitnesses say he spirited his family away

their attorneys are practicing law in California federal

before making his own escape. By the terms of his plea

court, they don’t have to have a license in California as

agreement, Francis still owes the government millions of

long as they have a bar license from somewhere. I am

dollars in fines and restitution.

told by a former U.S. Attorney for the Central District of California in Los Angeles that it is not allowed there.

We also know some of these facts because Francis brazenly gave interviews in a multi-part podcast before

So, of course, the Colorado bar investigated one of

the trial, explaining how he bamboozled the government.

their own lawyers concerning what the federal judge in

Some of what he said was entered into evidence, but

the case called willful and outrageous misconduct.

this was poo-pooed by the government despite Francis’

Not really! The Colorado bar concluded the conduct

own comments belying what the prosecutors were

occurred in California, so there is nothing that can be

representing to the defense, court, and jury.

done. So, defense counsel filed a complaint in California, and what do you think the California bar said? He is not

The court detailed the missteps of the prosecutors and

a California attorney, so there is nothing we can do.

the fact that the government never filed an opposition to

Finally, a complaint was made to the Department of

the defense statements. She stated, “The only reasonable

Justice Office of Professional Responsibility. You guessed

inference from this request (the misdemeanor pleas) is

it, nothing was done. This is the outrage upon outrage.

that the allegations cannot, will not be justified or ever

Something needs to change if we want the public to have

defended by the government.”

faith in our system of justice.

So, what do we do when the rule of law is ignored? Defense counsel filed a complaint with the Colorado Bar Association, where the lead prosecutor had his license to practice law. Under an often-abused policy, the U.S. Attorney’s office in San Diego claims that even though

Michael L. Crowley has practiced criminal law for more than 35 years and is a Criminal Law Specialist. He is a former editor of DICTA Magazine, the predecessor of this publication.

SAN DIEGO LAWYER

November / December 2023

REVOLUTION REVISITED By George W. Brewster Jr.

n the centennial year of the Declaration of Independence, on George Washington’s birthday (that is, on February 22, 1876), a group called the Sons of the Revolution (SR) was founded in New York City. That founding group required all subsequent chapters to be subordinate to the New York chapter, which seems ironic given the celebration of independence and freedom from tyranny. Meanwhile, a different group called Sons of Revolutionary Sires was created in San Francisco. A revolution about revolutionary societies! But peace won out with the creation of the National Society of the Sons of the American Revolution (SAR) on April 30, 1889. (That date was the centennial of George Washington’s inauguration as President in 1789.) SAR member No. 1 was William Osborn McDowell, formally of the New Jersey Chapter of the SR, and he intended the SAR to be a mass movement of Revolutionary War patriot male descendants. Four women established the Daughters of the American Revolution (DAR) for female descendants on October 11, 1890. It is unknown if George Washington did anything of significance on October 11, but the thing to know is that one of the four founders of the DAR, Ellen Walworth of Illinois, held a law degree from New York University (but did not practice). One of the later prominent DAR members was Eleanor Roosevelt, and her uncle (President Theodore Roosevelt, a SAR member) signed the Congressional Act allowing statelevel societies and chapters of the SAR in 1906.

SAN DIEGO LAWYER

November / December 2023

For both the SAR and the DAR, any individual of “good repute” who can prove lineal bloodline descent from an ancestor who actively supported the American Revolution is eligible for membership. Today, the DAR is the dominant organization. It currently has over 185,000 members and 3,000 chapters. The SAR has 37,000 members with 550 chapters. Both are supposed to be nonpolitical and since 1890, the SAR has admitted over 200,000 descendants into its ranks. The goal of these organizations is to promote patriotism and preserve U.S. history. The San Diego Chapter of the SAR was founded almost 130 years ago (1894) by attorney Daniel Cleveland (1838–1929), remembered as one of the builders of cultural San Diego. He is credited with founding a host of organizations in San Diego, including the public library, the first bank, the Natural History Museum in Balboa Park, the first hospital, the Young Women’s Christian Association, and the Pioneer Society. Cleveland Street in University Heights is named for him. According to Cleveland’s application for membership to the California Society of the Sons of the American Revolution (dated June 20, 1894), his great-grandfather (James Huntington) was a corporal in the war (circa 1775) and fought at Bunker Hill. The San Diego Chapter was reorganized in 1910 to become the second chapter under the California Society

of the SAR, and the first president of the reorganized

Constitution Day celebration; and in December of this

local chapter was San Diego Superior Court Judge

year, a reenactment of the dumping of British tea in

William Mossholder, a Midwest transplant who received

Boston Harbor. Fagen noted that the organization is

his law degree from the University of Iowa.

nonpartisan, with members from all races, ethnicities, and religions. “The one common denominator is an

The current President of the San Diego Chapter of the

interest in the history of the founding of the country,”

SAR is also a local lawyer who obtained his law degree

he says. “I still believe that America is the brightest

from the University of Iowa, Peter Fagen. He founded

beacon for liberty and freedom in the world today, and

his current firm (Fagen Friedman & Fulfrost LLP) in 2006

I am proud to celebrate my family’s connection to the

and joined the SAR in 2018. Both Fagen and his son,

founding of this country and all the good that it stands

Andrew, are members of the San Diego Chapter’s Color

for and has stood for over the last 250 years.”

Guard, which requires full Revolutionary War-era uniforms.

While DAR is a more active force, SAR continues to march forward. As Fagen notes, one of the most popular

“SAR is a civics-based organization,” says Fagen, who

events has been the February black-tie event in honor

believes civics education and knowledge are lacking

of George Washington’s birthday. With most things

in the U.S. “I’m happy to play a role in an organization

Revolutionary, it always comes back to George.

that is civics-focused in our many education-related programs.” These include membership participation in parades; writing competitions; awarding of medals and scholarships to NROTC cadets; civic events, such as the laying of wreaths at veteran gravesites;

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.

a black-tie dinner honoring Washington; a September

SAN DIEGO LAWYER

November / December 2023

Donate the Equivalent of One Billable Hour (or whatever you can) Today!

Join the Give An Hour Challenge Calling all Legal Professionals in San Diego County!

Step 1

Step 2

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Visit the link or scan the QR code to donate the value of your billable hour.

Receive a confirmation email with a ready-to-share graphic for your social media.

Share the graphic, challenge your colleagues, and make an impact!

Empower change through our General Grant Fund and watch your donation go a long way: $50 can provide an hour of legal assessment and education for domestic violence victims.

$100 can provide one-on-one legal services support for employment and immigration rights cases.

$75 can provide an hour of legal assistance for lowincome individuals and families.

$125 can provide legal services for veterans in San Diego County.

The more you give, the more non-profit services we can fund! Help us reach our $15,000.00 goal by giving today! Ready to make a difference? Scan the QR code now! Or visit SDCBF.org/giveanhour/ Nurturing Trust in a Legacy of Impact: The San Diego County Bar Foundation has a distinguished history of raising vital funds to empower the organizations on the frontlines of justice. Your donation dollars are in expert hands, ensuring they reach the organizations that make a tangible difference in our community. 619-231-7015

info@sdcbf.org

sdcbf.org

MEET SHANNON STEIN, THE 2024 PRESIDENT OF THE SAN DIEGO COUNTY BAR FOUNDATION

In the ever-evolving landscape of legal practice, individuals who not only excel in their careers but also devote their expertise to philanthropy stand out as true leaders. Shannon Stein, an esteemed legal professional, epitomizes this ethos of giving back to the community. As she steps into the role of the incoming President of the San Diego County Bar Foundation, Shannon brings with her a wealth of experience and a profound dedication to the Foundation’s mission. In this article, Shannon candidly discusses her goals, the alignment of her legal career with the Foundation’s objectives, and the motivating forces that led her into the field of law. Her journey through the legal profession, marked by unwavering commitment and a spirit of service, exemplifies the values that the Foundation holds dear. Join us in exploring Shannon’s insight and aspirations as she prepares to lead the Foundation into a future rich with possibilities, empowerment, and justice for all. What goals do you have leading the Foundation? My primary goal as incoming President of the San Diego County Bar Foundation is to grow awareness among those in our legal community about the Foundation and its mission. I find that once people are aware of the Foundation, and the organizations it supports, they are eager to become involved either by attending Foundation events, contributing financially, or even joining as a member of our board. I encourage anyone

who is interested in learning more to visit our website, reach out to a board member and definitely come to an event in 2024.

Brown Gross & Lovelace LLP, who have shared their knowledge, expertise, and support since I was a law clerk. I have also had the freedom to explore organizations and opportunities that expand my practice, legal knowledge, and impact on the legal community. The support of my firm has allowed me to establish and grow my practice, devote time to the Foundation and other legal organizations, and most significantly, take the time needed to truly enjoy my family.

How does your experience in your legal career align with the Foundation? The practice of law is at its core a service profession. Providing great service is always one of my professional goals. The organizations that receive our grants serve people who are the most vulnerable and in need of help. The more grants the Foundation can fund, the more people who will receive legal services that they need and deserve.

Can you share an example of a time when you had to overcome significant challenges in your legal career?

What motivated you to pursue a career in law and specialize in your particular area of expertise? My parents are attorneys and I had no science aptitude, so law school was the path. In law school, I found my husband and the area of practice, trusts and estates, that would be the focus of my career. I have practiced exclusively in this area, except for the one construction defect deposition I had to cover as a new associate! I truly enjoy being a trust and estates attorney, appearing in the Probate Court, and working with families and professionals during challenging circumstances. How has your career evolved over time, and what has shaped your professional growth?

I have been so fortunate to be a part of Goodwin Brown Gross & Lovelace and work with the same group of people for my entire career. It is a supportive, collaborative, and fun place to work. The challenge is always time and ensuring I am giving my all to my clients, my firm, and my family. Although my work for the Foundation takes time, it is always time well spent. Importantly, time that makes a real difference by supporting and sustaining legal organizations that serve those in need, and demonstrating for my children the impact of giving.

For more information, or to make a donation, visit:

SDCBF.org/donate

I have received amazing mentorship from my colleagues and partners at my firm Goodwin

619-231-7015 | info@sdcbf.org | SDCBF.org SAN DIEGO LAWYER

November / December 2023

Local Solutions. Global Reach.

SDCBA MEMBER PROFILE this December. We also enjoy discovering and rediscovering

TANYA M. SCHIERLING Managing Partner Solomon Ward Seidenwurm & Smith LLP

wine and history (usually in that order!) on trips to Europe. I treat my wanderlust with novels and histories of interesting people and times. “If I weren’t an attorney, I’d be …” If I weren’t an attorney, I would (aspire to) be Gertrude Bell (see next question). More realistically, though, I would be a National Park Ranger. Their commitment to and

What inspired you to practice law? I was inspired to practice law from a class I took on the Supreme Court and the Constitution in my junior year at Dartmouth College. I was raised in a family of scientists and engineers, so the idea of law as a profession was unfamiliar to me. When I got to college, I was already in uncharted waters as a liberal arts major. I considered English, history, and government majors. With the Supreme Court/ Constitution class, I witnessed a magical world where the human story played out within — and probed the boundaries of — the principled structure of the law. This story was narrated in occasionally colorful but always meaningful writing, all while making history. I was hooked; practicing law became the obvious choice. What is your proudest career moment? I am fortunate enough that, from the beginning of my career, my proudest career moment recurs each time I have the privilege to lead a team in delivering excellent lawyering. From trying my first court-martial as an Army prosecutor stationed overseas with a team of four young enlisted soldiers supporting me, to my four years as chair of Solomon Ward’s litigation department, to my service now as my firm’s Managing Partner, my pride derives from the people I work with and the high caliber of lawyering and service we provide. What fills your time outside of work? I love the outdoors, travel, and adventure. When I was an Army JAG Officer, physical fitness was a requirement. That commitment has stuck with me. We are so incredibly fortunate to live in San Diego, where cycling, running, swimming, and hiking in a beautiful natural environment are literally at our doorstep. I try to take advantage of that blessing every day. My husband (also a lawyer) and I also diligently carve time out to travel farther afield.

stewardship of this amazing land we call home inspires me. There’s the added perk of being outside and immersed in historical moments all day. What is your favorite movie, book, or TV show? Why? This question is difficult because so many books and movies have moved me. Presently, one stands out. Several years ago, I stumbled across the movie “Queen of the Desert,” a mostly historical film about Gertrude Bell. What a phenomenal human being. All the more so because she was a woman in the early 1900s, a time when women, especially women born into privilege and money like herself, did not attend university (much less Oxford University, graduating with first-class honors in history in just two years), nor climb mountains in the Swiss Alps or lead caravans into the deserts of the Middle East, which, on par with or even surpassing Lawrence of Arabia’s exploits, played a direct role in shaping the modern Middle East and thus modern history globally. I wish I could have traveled the world with her. What one skill has helped you be successful as an attorney, and how could others develop that skill to better their practices? Thorough preparation (and its inseparable twin sister, organization). Know your deadlines; backward plan (another Army lesson); have a progress plan for your cases; adhere to it. Know where to find key facts, documents, and case law on a moment’s notice, and master them; know your client’s facts better than they do. I have found that these skills allow me to anticipate curveballs, recover quickly from inevitable setbacks, and lead the momentum in my cases rather than follow in their wake. What would you like most to be known for? Authenticity.

We have been to Africa twice and are heading there again

SAN DIEGO LAWYER

November / December 2023

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Stephanie Watson

Program and Events Specialist

What are your main responsibilities at the Bar? Using creativity, organization, and effective communication to facilitate memorable programs and events for our members. How long have you been working at the Bar? I started in June 2023, so a little over four months! What is your favorite part of your job? I like the knowledge I’ve gained by attending programs and learning about the positive impact lawyers are making in the world. I also enjoy getting to use my creativity to add a special touch to our events.

What is your favorite movie, and why? “Eternal Sunshine of the Spotless Mind.” I like this movie because it plays with the concept of future technology and its impact on our perception of reality. It taught me that every memory, even the difficult ones, should be treasured, because they have shaped who I am today. What's your favorite quote? "Success is not final, failure is not fatal: It is the courage to continue that counts." — Winston Churchill What do you love about San Diego? I love the great weather, diverse culture, and endless activities to choose from.

SAN DIEGO LAWYER

November / December 2023

Find Your next expert Looking for an expert who is qualified to give legal testimony or offer consultation, litigation, or dispute resolution services? Visit the SDCBA’s brand new online directory to find your next expert. Our online search makes it simple to identify providers with the right expertise for your needs.

www.Firststopexperts.com/sdcba

LAW YER REFERRAL & INFORMATION SERVICE

TESTIMONIAL

joined LRIS to gain access to the community and let them know that Landlord-Tenant lawyers are here to help. Especially in the post-COVID era, both landlords and tenants need a lawyer with experience to help navigate through all of the new laws. I care about my clients and have the experience needed to address their needs. One example of a success story that comes to mind is when I was put in contact with a Spanish-speaking landlord who was being taken advantage of by her tenants. The tenants were hiding behind some of the tenant protection laws to avoid paying rent. The landlord was at the brink of foreclosure and the

LAW YER REFERRAL & INFORMATION SERVICE

TESTIMONIAL

JUANITA GUILLEN-MELLMAN Co-founding partner of Mellman & Mellman LLP

stress of the situation was hurting her health. After talking, I found that the protections the tenants were citing did not apply to their situation, and the relevant law to support their eviction. I was able to regain possession of the property for the landlord, recover rent, and facilitate an amicable end to the tenants' occupancy. I was really happy to see the stress lifted off my client. In my opinion, that’s the biggest benefit of LRIS; access to a community that might not otherwise know about our services. I would absolutely encourage other attorneys to join LRIS — it helps grow your business!

MONTY RANDHAWA Criminal Defense Attorney at Law Offices of Monty Randhawa

joined LRIS because I saw it as an excellent opportunity to enhance my legal practice and generate additional leads for my criminal defense practice. LRIS offered several advantages that aligned with my professional goals. In my opinion, the biggest benefit of LRIS is the quality of leads it provides (as well as the increased visibility it offers my practice).

circumstances of the case, and the client's legal rights. My efforts culminated in persuading the City Attorney's Office to reject the case and have it dismissed before any criminal charges were filed. This was a significant achievement, as it spared my client from the severe consequences of a sex crimes conviction. The client maintains a criminal free record.

For example, I was referred a client who was potentially facing serious sex crimes charges, with potential consequences including sex offender registration. The situation was particularly challenging, as the case was still under investigation by the San Diego Police Department when it was first brought to my attention. The case was eventually forwarded to the San Diego City Attorney's Office for prosecution. Upon taking the case, I worked diligently to provide mitigation and supporting case law to the City Attorney's Office. Over the course of a year, I undertook a thorough examination of the evidence, the unique

This case serves as a prime example of the positive impact of legal representation and the value of referral programs such as LRIS in connecting clients with the right attorneys who can navigate complex legal challenges and deliver successful outcomes. Overall, I would encourage attorneys to join LRIS because it is a valuable resource that can significantly benefit an attorney's practice by providing access to quality leads, increasing visibility, fostering business growth, and facilitating the creation of success stories that showcase the attorney's skills.

SAN DIEGO LAWYER

November / December 2023

FPO

THANK YOU TO OUR PATRON & FRIEND MEMBERS The SDCBA gratefully acknowledges the generous commitment of members who support our community at the Patron and Friend membership levels. You can become a Patron or Friend member when you activate or renew your membership online, or by request at any time. For more information about upgrading, please contact mbr@sdcba.org.

Patron and Friend member lists as of November 2023

PATRON

MEMBERS

Marc D. Adelman

James P. Frantz

Anthony J. Passante

Alicia Aquino

Michelle Ann Gastil

Frank J. Polek

Danielle Patricia Barger

Olivia J. Gilliam

Kristin Rizzo

Hon. Victor E. Bianchini (Ret.)

Douglas A. Glass

Ana M. Sambold

Jedd E. Bogage

Alvin M. Gomez

Pamela J. Scholefield

Tanisha Bostick

Nicole L. Heeder

Seana Kelly Scholtemeyer

James A. Bush

Stephen M. Hogan

Khodadad Darius Sharif

Andy Cook

Ted Holmquist

Elisabeth Silva

Steven T. Coopersmith

Melissa Johnson

David G. Sizemore

Ezekiel E. Cortez

James Michael Johnson

Christopher J. Sunnen

Tricia D'Ambrosio-Woodward

Stacey A. Kartchner

Genevieve A. Suzuki

Taylor Darcy

Carla B. Keehn

Cassandra C. Thorson

Warren K. Den

Garrison "Bud" Klueck

Thomas J. Warwick

John A. Don

Hon. Lilys D. McCoy

Lenden F. Webb

William O. Dougherty

Mark M. Mercer

Jon Webster

Alexander Isaac Dychter

Peter P. Meringolo

Daniel Weiner

James J. Eischen Jr.

Jillian M. Minter

Andrew H. Wilensky

Matthew J. Faust

Virginia C. Nelson

Karen M. ZoBell

Sergio Feria

Ron H. Oberndorfer

Nicholas J. Fox

Deborah A. Ortega

FRIEND

MEMBERS

Pedro Bernal Bilse

Mark Kaufman

Blanca Quintero

James Gregory Boyd

Randall E. Kay

Hon. Stephanie Sontag

Jivaka A.R. Candappa

Philip John Mauriello

Peter B. Tentler

Julie Marie K. Cepeda

Anne Perry

Michael A. Van Horne

Linda Cianciolo

Kristi E. Pfister

Mark Richard VonderHaar

David B. Dugan

SAN DIEGO LAWYER

November / December 2023

PAID ADVERTISMENT

RESULTS MATTER

Frantz Law Group Brings multibillion-dollar justice to the wronged.

or 43 years, Frantz Law Group (FLG) has been a powerhouse player in some of the nation’s most significant, high-stakes litigation. From 2020-23 alone, the firm secured over 60 multimillion-dollar individual awards (totaling over $400 million) and helped attain several multibillion-dollar settlements that have benefited thousands of FLG clients1. Founder James P. Frantz is driven by the belief that every person’s life is significant, and no injured victim should go uncompensated when their lives have been upended by the negligence of others. Bringing litigation against the reckless and negligent parties many times leads to significant safety changes in behavior and attitude that will presumably negate future harm to others.

Wildfire, Gas Blowouts, JUUL For the last 3 decades, FLG has represented victims of wildfires caused by public utility negligence—namely the 2017 North Bay Fires, the 2017 Thomas Fire and Montecito Mudslide, the 2018 Camp Fire and Woolsey Fire, the 2019 Getty Fire, Kincade Fire and Saddleridge Fire, the 2020 Mountain View Fire and Bobcat Fire, the 2021 Dixie Fire and in 2022 the McKinney, Mill, Mosquito and Fairview Fires. FLG is currently representing over 6,700 victims associated with these wildfires.

As a result of the largest methane gas leak in United States history, more than 35,000 residents (FLG represents 8,202 clients) of the Porter Ranch community are being compensated by the $1.8 billion settlement secured by FLG and other law firms representing clients2. On behalf of nearly 1,000 school districts nationwide, FLG achieved a positive outcome against JUUL Labs Inc. wherein JUUL agreed to pay $1.2 billion for causing the U.S. youth-vaping epidemic. Although the case was settled against JUUL, another defendant known as Altria remains. A trial took place in the United States District Court for the Northern District of California and a proposed Altria global settlement3 is $235 million and pending. “We’re passionate about protecting society’s most vulnerable populations against entities that seek to exploit victims for financial gain, and we advocate for those who have been wronged by negligence and reckless misconduct. Our landmark verdicts/settlements serve as a reminder to large corporations (and individuals) that engage in reckless misconduct will not be tolerated or go unpunished. These cases have the power to force long-term corporate and individual safety change,” says Frantz.

Preparing for Success With 16 lawyers, 30 staff members, and 13 offices throughout California and Hawaii, FLG has the manpower and decades-earned experience to execute winning trials and settlements of the highest caliber. To prepare for the most complex cases, the firm assembles a mock trial (or mock trials) to present both the plaintiff and defense side, a process that fine-tunes FLG’s strongest arguments and exposes case weaknesses. Mock jurors offer valuable insight as to the quality, clarity, and persuasiveness of the evidence. FLG has been ranked Tier 1 in U.S. News – Best Lawyers® “Best Law Firms” from 2010-23 for mass tort litigation/class actions - plaintiffs. James Frantz is a fellow and associate of the American Board of Trial Advocates, is AV® rated by MartindaleHubbell®, is a 30-year Special Master appointed by the State Bar of California and a 20-year Master in The Enright Chapter, American Inns of Court. Each case is dependent upon its particular facts, and no prior result is a guarantee or prediction of another case’s possible outcome. Nonetheless, our prior cases show the kind of results we can often achieve. 1

This is the amount recovered by all victims as part of a collective settlement. Under the settlement terms, each plaintiff ’s recovery is determined based on various factors. This amount is not the total recovered by Frantz Law Group clients 2

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James P. Frantz approves the content of this advertisement. This advertisement is not an endorsement by the SDCBA.

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THANK YOU

100% CLUB 2023 The San Diego County Bar Association wants to thank all of the San Diego law firms, public agencies, and nonprofit legal organizations that have provided SDCBA membership to 100% of their attorneys in 2023. Your commitment to the San Diego legal community is greatly appreciated. 100% Club member list as of November 2023

Allen Matkins Leck Gamble Mallory & Natsis LLP

Gatzke Dillon & Ballance LLP

Office of the Carlsbad City Attorney

Ames Karanjia LLP

Genesis Family Law, APC

Office of the Public Defender

Antonyan Miranda, LLP

GrahamHollis APC

Office of the San Diego City Attorney

Appellate Defenders, Inc.

Green Bryant & French, LLP

Pettit Kohn Ingrassia Lutz & Dolin PC

Greene & Roberts LLP

Pillsbury Winthrop Shaw Pittman LLP

Grimm, Vranjes Greer Stephan & Bridgman LLP

Preovolos Lewin, ALC

Hahn Loeser & Parks, LLP

Procopio, Cory, Hargreaves & Savitch LLP

Hegeler & Anderson APC

Quarles

Henderson, Caverly, Pum & Trytten LLP

Rowe | Mullen LLP

Higgs Fletcher & Mack LLP

San Diego County Counsel

Hoffman & Forde

San Diego Unified Port District

Hooper, Lundy & Bookman, PC

Schaffer Family Law Group

Horton Oberrecht & Kirkpatrick, APC

Schor Vogelzang & Chung LLP

Hughes & Pizzuto, APC

Schulz Brick & Rogaski

Jackson Lewis PC

Schwartz Semerdjian Cauley & Evans LLP

Burke, Williams & Sorensen, LLP

Johnson Fistel LLP

Seltzer|Caplan|McMahon|Vitek ALC

Burton Kelley, LLP

Judkins, Glatt & Rich LLP

Sheppard, Mullin, Richter & Hampton LLP

Astuno Sabel Law PC Atkinson, Andelson, Loya, Ruud & Romo Beamer, Lauth, Steinley & Bond, LLP Bender Kurlander Hernandez & Campbell, APC Best Best & Krieger LLP BioMed Realty Blackmar, Principe & Schmelter APC Blanchard Krasner & French Bobbitt, Pinckard & Fields, APC Brierton Jones & Jones, LLP Buchanan Ingersoll & Rooney PC

Butterfield Schechter LLP California Western School of Law Case Harvey Fedor Casey Gerry Chalifoux, Brast, Thompson & Potocki APC Christensen & Spath LLP Cohelan Khoury & Singer Dean Gazzo Roistacher LLP Devaney Pate Morris & Cameron, LLP Dietz, Gilmor & Chazen, APC District Attorney’s Office of San Diego Donald R. Holben & Associates, APC Duckor Metzger & Wynne ALC Erickson Law Firm APC Ferris & Britton, APC Fitzgerald Knaier LLP Flanagan Law, APC Fleischer & Ravreby

Karen D. Wood & Associates

Shustak Reynolds & Partners, PC

Klinedinst PC

Siegel, Moreno & Settler, APC

Koeller Nebeker Carlson & Haluck LLP

Solomon Minton Cardinal Doyle & Smith LLP

Konoske Akiyama | Brust LLP

Solomon Ward Seidenwurm & Smith, LLP

Kriger Law Firm

Stokes Wagner, ALC

Law Offices of Beatrice L. Snider, APC

Sullivan Hill Rez & Engel APLC

Legal Aid Society of San Diego, Inc.

Sullivan, McGibbons, Crickard & Associates, LLP

Lincoln Gustafson & Cercos LLP

Thorsnes Bartolotta McGuire LLP

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SAN DIEGO LAWYER

November / December 2023

REA

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H A O

The Hon. Donald F. Armento, Ret.

Douglas Barker, Esq.

Julie Cobalt, Esq.

SIN E SS

Laura Kass-Moreno, Esq. Jim Pokorny, Esq.

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John Edwards, Esq.

John Turner, Esq.

Robert J. Hanna, Esq.

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DISTINCTIONS The following individuals in our community were recently honored for their achievements. If you achieve a professional success, feel welcome to submit it to bar@sdcba.org for inclusion in an upcoming issue of San Diego Lawyer. Congratulations to the San Diego Business Journal's Top 100 Leaders In Law. Many SDCBA members were included in the group of honorees, including 2023 SDCBA President Melissa Johnson and 2023 Board Member Brenda Lopez, as well as Immediate Past President David Majchrzak and Past President Heather Rosing. SDCBA Past President (2020) Johanna Schiavoni has been appointed by the Chief Judge of Ninth Circuit Court of Appeals, Mary Murguia, to serve as Chair of the Circuit’s Appellate Lawyer Representatives Committee to the Ninth Circuit Judicial Conference. As Chair, Johanna will lead the work of 24 lawyer representatives from across the Circuit’s 11 states and territories as they work with the Circuit’s Judges to enhance the administration of justice. Johanna’s term as Chair will run through 2025. SDCBA Past President (1990) Virginia Nelson was elected and assumed the role of Vice Chair of the University of San Diego Board of Trustees on July 1, 2023. Ginny has served on the Board of Trustees since 2020 and has taught experiential courses at USD School of Law since 2015 as an Adjunct Professor.

PASSINGS B. James (“Jamie”) Brierton, Jr., passed away on October 7, 2023, surrounded by his family. Jamie served his country with distinction as a member of SEAL Team One prior to founding the law firm now known as Brierton, Jones & Jones, LLP. He spent over 45 years litigating complex trust, probate and elder law matters, placing a special emphasis on the importance of alternative dispute resolution. An avid lover of exercise, Jamie competed in over 100 triathlons, including 16 Ironman triathlons. He leaves behind a legacy of service, kindness, and a genuine love for the law and helping others. Jamie will be greatly missed.

SAN DIEGO LAWYER ACCOLADES!

PASSINGS

San Diego Lawyer has been recognized in five categories at the San Diego Press Club’s Annual Excellence in Journalism Awards. Congratulations to all award recipients, and special thanks to our volunteer contributors and SDCBA staff for their incredible work! •

George Brewster, 1st Place, Editorial Cartoon, “ZoomMate 2000”

•

Kiana Caton, 3rd Place, Essay/Commentary/Opinion, “Girl Undetected: The Dark Side of Remote Bar Examinations”

•

Isaac Jackson, 1st Place, Multicultural Essay, “Let's Not Think of Juneteenth as Just a Black Holiday”

•

Genevieve Suzuki, 1st Place, Magazine Editorials, “The Fight for Diversity Has Only Begun”

•

Savanah Tiffany, Honorable Mention, Magazine Feature, “Nothing About Us Without Us: Why We Need More Lawyers With Disabilities” SAN DIEGO LAWYER

November / December 2023

PHOTO GALLERY BENCH/BAR/MEDIA EVENT This year's annual event featured panelists who shared powerful, first-hand accounts of the emotional health challenges faced by the bench, lawyers, and journalists.

L to R: Dana Littlefield, Amy Lansing, Hon. Laura W. Halgren, Hon. Frank Birchak

DIALOGUE ON DIVERSITY Thank you to everyone who joined us for our program on fostering inclusivity. Our panel of experts discussed practical strategies for sustaining inclusive practices at work and beyond.

Attendees enjoyed a networking session before and after the program.

SAN DIEGO LAWYER

November / December 2023

Attendees heard from a panel of journalism and legal professionals.

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