MAR/APR 2015
small talk:
Solos & Small Firm Practitioners Talk Shop
+ PLUS Marketing Tips for Solos Our Workers’ Compensation Appeals Board
FREDERICK SCHENK
L E A D I N G
T H E
W A Y
Meet longtime CaseyGerry partner Frederick Schenk, who for more than 30 years has been a leader in serious personal injury and products liability litigation. From national litigation against the NFL and asbestos manufacturers to fighting Big Tobacco, he has played a pivotal role in many landmark cases over the years. He brings a keen insight, dedication and compassion to every case and client. Call (800) 292-5865 to discuss referral or co-counsel arrangements.
www.caseygerry.com P e r s o n a l
I n j u r y
a n d
C I v I l
l I t I g a t I o n
San Diego Office: 110 laurel street, san diego North County Office: 1901 Camino vida roble, ste. 121, Carlsbad
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CONTENTS
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Features
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Departments
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Small Talk: A Roundtable Discussion Small and solo practitioners talk shop
Why I Belong Meet SDCBA member Aimee Axelrod
Tips Is your online security in jeopardy?
By Jeremy Evans Moderated by Richard Huver Featuring Lisa Frank, Dan Kehr, Timothy Richardson, and Katie Spero
24 Journeys: Branching Off Three local attorneys and their decision to go solo By Elizabeth Blust
26 Innovative Ways to Attract New Clients Marketing that really works for small firms and solo practitioners
By William Kammer
8 SDCBA President’s Column How some members help shape a positive representation of our profession By Richard Huver
By Benita Ghura
11 Deans Looking ahead at a bright future By Thomas Guernsey
By Terrie S. Wheeler
31 The Anatomy of the Solo Office Peek inside a common office for some fun facts and tips
32 All in a Hard Day’s Work An in-depth look into our Workers’ Compensation Appeals Board By Brody Burns
36 Investing Abroad The pros and cons of the EB-5 Immigrant Investor program
41 Thirsty for Knowledge The San Diego Law Library expands its water law collection
13 Ethics Demanding payment for negligent fees could cost more than the money you are seeking
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Distinctions Recent honors and recognitions in our legal community
43 Photo Gallery Snapshots from recent events
By Edward McIntyre
14 In-House Perspective Q & A with Jim Spievak By Alidad Vakili
By Teodora Purcell
38 Celebrating Traditions Welcoming spring with the Iranian American Bar Association
Issue no. 2. San Diego Lawyer™ (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is 619-231-0781. The price of an annual subscription to members of the San Diego County Bar Association ($10) is included in their dues. Annual subscriptions to all others, $50. Single-copy price, $10. Periodicals postage paid at San Diego, CA and additional mailing offices. POSTMASTER: Send address changes to San Diego Lawyer, 401 West A Street, Suite 1100, San Diego, CA 92101. Copyright © 2015 by the San Diego County Bar Association. All rights r eserved. Opinions expressed in San Diego Lawyer are those of the author only and are not opinions of the SDCBA or the San Diego Lawyer Committee.
4 SAN DIEGO LAWYER March/April 2015
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WHY I BELONG
Aimee Axelrod
THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION
Jackson Lewis P.C.
Education: University of San Diego School of Law (Class of 2007); Hollins University (Roanoke, Virginia; Class of 1999) Area of practice: Employment Law/Litigation. My practice is dedicated to representing and advising businesses and management dealing with a broad array of issues arising in the workplace. Proudest career moment: I felt great pride upon reading a California Supreme Court opinion adopting, in part, language I painstakingly drafted to address a then-unsettled area of the law. As Margaret Thatcher once said, however, the “highroad to pride” is “[d]isciplining yourself to do what you know is right and important, although difficult.” I look forward to many more years of practice with this in mind. Family: My fiancé and I dote over our two dogs, Max and Leo, and spend time with extended family (and their dogs) as much as possible. Birthplace: Santa Monica, CA Current area of residence: Mission Hills If I weren’t an attorney, I’d be an author, likely writing about attorneys, wishing I was an attorney.
Editor Alidad Vakili
Associate Editor Christine Pangan
Editorial Board Stephenie Alexander Walter Araujo Hon. Victor Bianchini (Ret.) Rebecca Blain Elizabeth Blust Adam Brewer George Brewster, Jr. Martin Buchanan Judith Copeland Jim Crosby Elisabeth Donovan Jeremy Evans Renée Galente Eric Ganci
Benita Ghura Hon. William Howatt, Jr. (Ret.) D. Milie Joshi Robert Lynn Steven McDonald Edward McIntyre Erik Nelson Jocelyn Neudauer Hon. Leo Papas (Ret.) Don Rez Danwill Schwender David Seto Christopher Todd Teresa Warren
Cartoonist George Brewster, Jr.
The best thing about being an attorney is being equipped to solve problems, or better yet avoid them altogether, so that people and businesses can fulfill their greatest potentials.
Photographers
Last vacation: A quiet, snowy weekend in Big Bear – with the dogs, of course. My last “real” vacation was to Andalucía and the Algarve. I love Spain and Portugal!
SAN DIEGO COUNTY BAR ASSOCIATION
Favorite Web site: I am a news junkie, and use Flipboard and Twitter to combine various sources into my personal information mecca. Hobbies: Reading, gardening, and exploring tide pools. Favorite book: I have so many favorite books, but would choose something by Ken Follet or Gabriel García Márquez. Favorite musical artist: I recently discovered Olafur Arnalds, who is in the running to replace Chopin in my personal soundtrack. Favorite food: If it’s spicy, I like it. Why do you belong to the SDCBA? I belong, and my office is a member of the SDCBA's100 Percent Club, because Jackson Lewis and I value the opportunities the SDCBA provides to exchange information, share ideas and solutions, and stay abreast of the issues affecting our legal community, all of which help serve our clients more effectively. How does your SDCBA membership help keep you connected to the legal community? The SDCBA inspires discourse and interaction by sponsoring interesting educational and networking events. Its publications deliver insight into legal developments, but also into the people making those developments. The San Diego Bar has personality, and I appreciate the avenue the SDCBA affords to experience it. The Bar Center is also a wonderful meeting place and resource for our community. What makes San Diego’s bar so special/unique? In my experience, which includes the practice of law in various California cities, the San Diego Bar enjoys a unique spirit of collegiality and camaraderie. We are fortunate to reside in such a jewel of place, and we serve it with pride.
6 SAN DIEGO LAWYER March/April 2015
Barry Carlton David Seto
Executive Director Ellen Miller-Sharp
Communications Director Karen Korr
Graphic Designer Attiba Royster
Publications & Communications Specialist Jenna Little
Social Media & Marketing Specialist Lizzie Boyer
401 West A Street, Suite 1100, San Diego, CA 92101 Phone 619-231-0781 E-mail bar@sdcba.org Fax 619-338-0042 Website www.sdcba.org Interested contributors should send brief story outlines to the editor in lieu of unsolicited articles. No one other than the editor is authorized to commission original contributions to San Diego Lawyer™. Send all contributions to above address. San Diego Lawyer™ reserves the right to edit all submissions at its sole discretion. Submission of articles or photographs to San Diego Lawyer™ will be deemed to be authorization and license by the author to reproduce and publish said works within the pages of San Diego Lawyer™, the SDCBA website and social media pages. The opinions expressed by the authors and editors in San Diego Lawyer™ magazine do not necessarily reflect the official position of the San Diego County Bar Association.
FOR INFORMATION ABOUT ADVERTISING, CONTACT THE SDCBA AT (619) 231-0781 OR BAR@SDCBA.ORG
Victor Torres Law Office of Victor Manuel Torres Students are our future. When I was a law student I heard Justice Cruz Reynoso tell a group that the law is a service profession. This is a message that I have always tried to pass along, not just in my practice, but as a member of the community.
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ach and every one of us has an effect on the image of our profession every day in almost everything we do. It is paramount that we strive to protect our collective reputation – not only when in a suit or in the courtroom – but also while in line at the grocery store or at the bank, at a little league game, or out and about in our communities. There are countless examples of good in our community – attorneys who go out of their way to show extreme courtesy to other attorneys, to their staff members, in the courtroom and beyond. Have you witnessed professionalism in practice? We want to hear about it! Email us at bar@sdcba.org or share an example on Facebook or Twitter using the hashtag #SettheBarSD. We hope to show the country what Professionalism in Practice (#ProInPractice) means in our community. This month, I asked a few attorneys to answer the following question: What do you do in your communities to shape and enhance the reputation of our profession? You can find their responses here.
Richard A. Huver, 2015 SDCBA President
As a Rotarian, my club works hard to support sock drives and bilingual dictionaries for elementary schools, and running clubs for middle schools. When we meet with the children we often speak about our careers and the importance of education, usually in Spanish. Community college students are sometimes struggling with family pressures to work and help support the family. That’s why I participate in a program at Palomar College where students invite their grandparents, parents and siblings to the campus to share a bite to eat and hear speakers in Spanish describe their professions and careers.
Devin Burstein Warren & Burstein I enjoy speaking with people about my practice. As a proud criminal defense attorney, I feel a responsibility to challenge the typical, unexamined view of defendants and their lawyers. I am often asked about representing “criminals.” Usually, the questioner has a preconceived, negative view. There is a subtext of, “how can you defend those guilty people?” My answer is almost always: "How would you feel being judged solely on the worst decision in your life?” I have found this response disarming. The inquisitor becomes genuinely inquisitive. He or she then wants to know about the person I'm representing, not just the crime. And when I explain the client’s life circumstances, contempt becomes compassion. In these conversations, I hope to shift perceptions. Instead of seeing me and other attorneys as aiders of the terrible, we become constitutional defenders. We are not loop-hole exploiters, but justice seekers. And we rise together. Someone who thinks better of me is more likely to transfer that view to the criminal defense bar as a whole, which in turn enhances the reputation of our profession.
Janice Mulligan Mulligan, Banham & Findley Everyone has a favorite lawyer joke, and the point of most punch lines is that all lawyers are villains. What do I do to shape and enhance the reputation of our profession? I try to be the “other” lawyer, the one who displays a high level of ethics, compassion and humanity. As a clinical instructor at UCSD Medical Center, I have regular communication with people who would stereotypically think of me as their nemesis. Given that I am a plaintiff’s attorney representing patients against hospitals, doctors and nursing homes, kudos to UCSD for bringing me aboard. I teach various topics of health law, mostly relating to “preventive medical malpractice”. The goal is not only to save lives, but to create channels for dialogue between physicians and a plaintiff’s lawyer in a no-holds-barred environment. I also teach internationally on topics of health law to foreign lawyers and law students, to foster networks that encourage global standards and collaboration as well as bring cutting edge topics (such as the legal implications of medical innovations) to a broader audience. In this way, I work to bring both my “opponents” and like-minded lawyers together to prove the lawyer jokes wrong.
Joseph Sammartino Sammartino Law Group, P.C. The best way to shape and enhance the reputation of our profession in the community and outside of our profession is to be involved and to give back. Lawyers do not live solely in the bubble of the legal world. We all have many connections to the greater community in which we live. Participating actively in that community shapes others’ perceptions of lawyers and the reputation of our profession. Currently, I am the president of Youth Tennis San Diego, the non-profit that owns and operates the Barnes Tennis Center and runs after school tennis programs in 120+ schools throughout San Diego. Additionally, I am very involved with the Phelan-McDermid Syndrome Foundation for patients of this very rare disease and their families. I am also involved with our church, with our local elementary school, with Rady Children’s Hospital and with San Diego Rotary Club 33.
Benjamin Bunn Hulburt & Bunn, LLP Get involved as much as you possibly can with your community. I was raised in the very small town of Lone Pine, CA with about 2,500 people. In a small town, you learn the importance of "community" and the importance of getting involved. From this background, I believe it is our professional duty and honor to be part of making a difference with our children's schools, other activities and our local community. I was able to coach my son for six years as he progressed through little league baseball from T-Ball forward. Our teams were not the best but the kids and their parents saw me teaching and coaching –not as a trial lawyer but as a person who cared and wanted to teach skills with baseball and team building. Be a volunteer with a nonprofit board or association in an area that touches your heart. I was honored to be a part of the San Diego County Make a Wish board and ultimately serve as board chair. My work with this group of mostly non lawyers was a wonderful chance to make a difference for children. This gave me a chance to develop working relationships with many other community leaders who shared my passion for helping these kids and their families. I gained friends in the community who saw my work – not as a lawyer but as someone who could help grow this great organization. I was also able to serve on the local board and as board chair of the YWCA-Becky's House. The other dedicated volunteers saw me as someone who cared about something other than cases or money – something that was needed to help vulnerable women and children desperate for help. In the end, we do these things not for press or credit or attention. We do these things because it is the right thing to do for our local world. We all went to law school with the idea that we could make a difference. Being involved in your community gives you that opportunity and allows others to see you as a caring leader who can make important things happen. This is a pretty good way to enhance our image– do things for the right reasons and your image will be just fine.
BY THOMAS GUERNSE Y
DEANS
“Whenever You Do a Thing, Act As If All the World Were Watching” – Thomas Jefferson, 3rd President of the United States
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am not one who believes there are too many lawyers. It is generally accepted knowledge that as many as four-fifths of low-income people and three-fifths of middle-income people have unmet legal needs. As law school applications decline and a vitriolic narrative against the value of law schools continues, our ability as a profession to address this lack of access to justice is seriously threatened. We need to change that narrative and we need to change it now.
Thomas Guernsey
In order to do so, we, the leaders of law schools, need to change the way we do business. We at Thomas Jefferson School of Law know firsthand that the only way that narrative changes is if we change ourselves. We are in the midst of making improvements and while doing so we take to heart what our namesake once said, “Whenever you do a thing, act as if all the world were watching.” The courage of President Jefferson is what I aspire to every day as I walk the school’s halls, talking to students whose quest for a law degree is about social justice and a desire to serve their communities. Whether a student, a prospective student, one of our respected alumni, a dedicated professor, or an attorney who cares about the provision of legal services to the underrepresented, we all have a stake in seeing this and other law schools succeed. But, of course, our success will not be built upon the ways of the past. At Thomas Jefferson we have, over the last 20 months, installed new leadership, trimmed the fat off the budget, restructured the
debt, and expanded our bar prep programs so students are better prepared to take the exam. It has been inspirational and gut-wrenching at the same time. Despite our efforts and achievements, an unfavorable portrait of this law school continues to be repeated in social media, in traditional media, and even in some law offices and courthouses. Unchecked and inaccurate portraits of Thomas Jefferson School of Law and similar law schools nationwide wreaks havoc on the ability to attract potential students at a time when there is a serious decline in those aspiring to be lawyers. We cannot allow this to continue unchallenged. Speaking for Thomas Jefferson School of Law, you will be seeing and hearing about efforts to honor our mission of providing outstanding legal education for a diverse student body. We will confront the reality of our reputation head on and “act as if all the world is watching.” We will seek opportunities to understand our role and the legal system’s role in the unfavorable opinions and develop a course of action for ourselves and for our school community. We know the value and worth of Thomas Jefferson School of Law. We will tell our story in many different ways and invite our critics to the table. Keep your eye on us because good things are happening at this school. Through open collaboration and thoughtful discourse, we all succeed. Thomas Guernsey (guernsey@tjsl.edu) is Dean and President of Thomas Jefferson School of Law.
The courage of President Jefferson is what I aspire to every day as I walk the school’s halls, talking to students whose quest for a law degree is about social justice and a desire to serve their communities. March/April 2015 SAN DIEGO LAWYER 11
BY EDWARD McINT YRE
ETHICS
Winners and Losers Demanding payment for negligent fees could cost more than the money you are seeking
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acbeth introduced Sarah and Duncan to Fergus. “Please join us for a bit of strategizing. Fergus, you’ve got the floor.” “A long, sad tale. A former client’s about to stiff me on a large fee. Lots of promises. Some part payments. Then nothing. He’s got the money. Just won’t pay.” Macbeth took the lead. “How can we help?” “A year’s gone by …” Duncan interrupted. “So the statute’s run?” “Yes. I’ve got a written agreement. Attorney fees to the prevailing party. My question . . . . Do I hire a lawyer and sue?” Duncan jumped in. “Sue him. With attorney fees to the prevailing party, he’s got all the risk. I assume your fees are legit?” “Of course. Expensive lawsuit. The guy complained. But I can justify every minute. So-so result, but what can you expect?” “Then,” Duncan enthused, “you’ll be the prevailing party. You’ll get your fees. Plus what he still owes. Go for it.” Sarah cautioned, “Remember, you have to give him notice of his right to choose bar association arbitration.” “Thanks, forgot about that.” Macbeth spoke. “You said he’d made partial payments?” “Yeah. But only about 60% of what I billed.” “Suppose a judge looked hard at the total fees, the elements in Rule 4-200, your work, the result. Could he determine you’ve been reasonably paid for what you did?” “Well, anything’s possible. I mean, I guess so.” “Let me share a cautionary tale. A recent case.” Sarah looked up. Do you mean Karton? “Indeed.” Fergus gestured with both hands. “Please, Macbeth, any advice is welcome.” “A lawyer sued a former client. Got an $80,000 default judgment. Recovered some
CARTOON BY GEORGE BREWSTER, JR.
from the client’s partial payments. More by execution and garnishment. Took several years.” “Okay.” “Then the client challenged the execution process and the default itself. Appellate court agreed. Vacated the judgment. Back to the trial court.” “To start over again?” “Bar association arbitration.” “What happened?” The arbitrator decided the lawyer’d been paid everything due, even before the arbitration started. Lawyer got nothing. Trial court agreed. It even determined the client had overpaid.” “Well, at least the lawyer got paid – finally.” “That’s when things got interesting. The trial court found the lawyer was the prevailing party. Awarded about $1.1 million in fees and costs. The former client had sought about $500,000.” “Wow, that much fighting over $80,000?” “That and more. Another appeal.” “Your expression says it didn’t turn out well for the lawyer.” “The court ruled that, applying Civil Code section 1717, the client, not the lawyer, was the prevailing party. The lawyer’d been
paid. He got nothing, so he didn’t prevail. The former client, in effect, defensed the lawyer’s claim.” “I’m beginning to see your point.” “I’d hoped you might.” “The lawyer spent $1.1 million chasing $80,000. And now he’ll have to pay the former client some $500,000?” “Exactly. You’ve gotten partial payments. The fees were high. When you consider all Rule 4-200’s eleven criteria for a reasonable fee, might a court say you’ve been paid for your work?” Duncan shook his head. “Bummer.” Macbeth turned to Fergus. “I’m not saying you shouldn’t pursue your rights. But have someone take a cold look at the fees, the work, the result, the client’s complaints. Before you decide to sue.” “So, a little due diligence to save a lot of pain?” Macbeth nodded. “Amen to that.” Editorial Note The case to which Macbeth referred is David S. Karton, A Law Corp. v. Dougherty (2014) __Cal.App.4th __, 2014 WL 6065707 (December 12, 2014).
Edward McIntyre (edwardmcintyre1789@gmail. com) is an attorney at law. No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee. March/April 2015 SAN DIEGO LAWYER 13
IN-HOUSE PERSPECTIVE
BY ALIDAD VAKILI
Q & A: James R. Spievak General Counsel for Hearing Lab Technology, LLC
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his month, San Diego Lawyer caught up with James Spievak, General Counsel for Hearing Lab Technology, LLC, a company that specializes in the manufacture and distribution of hearing aids. Besides his many years of contributing to the San Diego legal community (Jim has served on a number of boards of local non-profits and served on the SDCBA Board of Directors as well as several SDCBA Committees), Jim’s passion for what he does shines through in talking about the law. As a practicing attorney for 43 years, Jim has just about seen it all. He has tried cases and handled complicated business transactions, all with a zest for learning and constantly improving his game. Of course, it helps to have the street smarts from having practiced for so many years. In 2012, Jim joined Hearing Lab Technology as its first in-house attorney.
managing the work load to be responsive to people and still get the projects done. What do you believe is important for outside counsel to know about your job to better enable them to serve your needs?
counsel, my name came up. Coincidentally, that same year, after decades of litigating cases, I had made up my mind not to do any further litigation. What is something that drives you? Love of life and law measured with integrity and ethics. It has been my philosophy and has always driven me.
How did you find your way to your current position?
What would you say is one of the biggest challenges you deal with as in-house counsel?
I found my way to my current job by doing good quality work for a client and attacking the issues in an economical and efficient manner. I had represented one of the principals (now the CEO) in litigation and had represented the company in some other matters. In the summer of 2012, when they saw a need for in-house
In my situation as the first in-house attorney for Hearing Lab Technology, I would say it’s a combination of the inexperience of management personnel and the complexities of a fast growing nationwide business. Other challenges are organizing documentation in a central way that is readily accessible and useable, and
Life Notes Number of years in practice: 43 Undergrad: University of California, Los Angeles, 1969 (B.A., Economics) Law school: University of San Diego School of Law, 1972 Hobbies: Sports and anything outdoors. I am an avid Padres fan and enjoy golf, mountaineering, and the feel of the wind on my face while cruising on my Harley.
I have been around the block, so my need for outside counsel is less than the average need other in-house counsel may have. My key for outside counsel is to get to the point and not overwork the case. I only want to see the principal person on the case doing the work, not a lot of other attorneys. And, help me solve a problem by finding a solution quickly. We’ll pay you quickly and then move on to the next project. What advice do you have for young lawyers who are interested in working in-house? Two things. Get experience to establish expertise and build your reputation while developing relationships. Throughout my career, my relationships with other lawyers, clients, and the community at large have been most influential to my success. Alidad Vakili (alidad.vakili@klgates.com) is Editor of San Diego Lawyer and a corporate attorney with K&L Gates LLP.
Quick Facts Company: Hearing Lab Technology, LLC is a manufacturer and distributor of high quality, low price point hearing aids. The company’s success is in part due to its high quality products and a proprietary Clearfit® testing and fitting software that allows users to go to any Sam’s Club (Liberty® Brand) or another of its customer’s hearing aid center for adjustments. The predecessor company was founded by Henry Smith in 2007. The principals got together for the first hearing center in 2008 in Cabela’s. We started under Walker Ear® Brand in a Cabela’s and saw it was doing well. The companies merged in 2009 and have been growing ever since.
Favorite quote: “If it isn’t fun, don’t do it.” I also like the Boy Scout motto, “Be prepared.”
Employees: There are more than 500 employees, mostly licensed hearing aid specialists across the country in our customer’s retail stores.
Favorite book: The Day of Battle: War in Sicily and Italy, by Rick Atkinson
Legal Department: One lawyer (me) and one paralegal.
Family: My wife, Joyce Spievak, and I have been married for 48 years and we have two daughters, Lisa and Keri.
Awards and accolades: Hearing Lab Technology has received a number of accolades for its new SIE 96 wireless hearing aids with remote Bluetooth® streamer. Our accolades are consistent with our company motto, “Helping people hear better®.”
14 SAN DIEGO LAWYER March/April 2015
Respected. Effective. Committed. Kathryn Karcher, for your client’s appeal.
karcherappeals.com | 619.565.4755 Certified Appellate Specialist, Board of Legal Specialization, State Bar of California SDLawyer_2015_01_09.qxp_Layout 1 1/16/15 10:45 AM Page 1
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Our nationally recognized Access to Law Initiative helps new attorneys build successful solo practices while giving back to the community. Learn MORE: www.cwsl.edu/ALI
DAN DEUPREY, ESQ.
BOB GAGLIONE, ESQ.
ALLEN GRUBER, ESQ.
GARY LATURNO, ESQ.
JAMES KING, ESQ.
HON. MICHAEL ORFIELD (RET)
PETER SHENAS, ESQ.
NANCY SPIECZNY, ESQ.
HON. ALICE SULLIVAN (RET)
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BY WILLIAM KAMMER
TIPS
Your e-Security Safety Net How asking the right questions could protect you and your clients
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y last column focused on the confidentiality of clients’ and attorneys’ data or electronically stored information (ESI) as it typically resides in our offices. Those risks haven’t gone away: witness the recent news reports that a local attorney lost almost $300,000 because of a sophisticated scam that began when he clicked on a nefarious link to malware. Those risks remain, but there are numerous external risks we confront daily and that implicate our ethical duties to our clients. The evolution of telecommuting, virtual offices, and mobile workplaces and devices has been rapid. Witness the march of time: the first iPhone (2007); Gmail and Dropbox (2009); the first iPad (2010); and iCloud (2011). These services and devices have facilitated greater information sharing and availability and allowed execution of client tasks from remote locations. Use of these services and devices, however, results in the dispersion of confidential attorney and client information and exposure of that information to additional risks. As attorneys, we owe the highest duty, and face constant responsibilities, to protect our clients’ confidential information and to do so with the ethically-required competence owed our clients. Similarly, we must exert identical efforts to protect our own confidential and proprietary information. The advent of mobile devices, web-hosted e-mail accounts, and remote computing suggests a complexity of execution and security besides what is necessary in a bricks-and-mortar environment. For instance, we often work at home on client matters. That suggests that our clients’ confidential information is resident
on our home computers and the mobile devices we use. Some of that information travels on our Wi-Fi networks and is backed up locally or in the cloud. How much protection do we afford that confidential information? Is our home Wi-Fi network protected by a password? Is its name open to view by anyone else? Is access to it limited only to our particular devices? If we can’t answer all these questions affirmatively, then confidential information may be at risk of detection and theft. Do we share our home computer or iPad with children or with anyone else? Are we certain that others have not downloaded malware that will compromise our data? Do we replicate our office desktop when we’re at home? Who else knows the passwords or methods used to access that information? We should all regularly back up our mobile and home office data. Many of us will use a cloud backup service for that purpose. What do we know about the security of the cloud provider or the location of its site? Can we assume that the provider or the law of its situs will protect our backed-up and confidential information from prying eyes, government subpoenas, or even discovery efforts of litigants with whom we have no relationship? Nowadays mobile devices enable us to connect with the office or clients from practically any location. If we use public Wi-Fi, do we know whether our communications with clients are encrypted? We should ask the same question if we use anyone else’s computer, whether in an Internet café, a hotel, a workplace, or in the home of friends or relatives. Our mobile devices can hold as much as
128 GB of data. They absolutely require a password or PIN protection if they contain confidential or proprietary information or copies. In addition, if the mobile device is stolen or lost, we must have a method to wipe it clean and protect it from inquisitive eyes. We even have to pay attention to the Bluetooth on our mobile devices that enable functions such as a car phone. Paris Hilton’s was left on and enabled, and she lost her entire address book to an electronic snoop. Current litigation often involves extranets or hosted data locations. What do we really know about the security provided to the confidential information we store and access at those web-based locations? If we protect information stored at any location with passwords, do we know who else has those passwords? Do we provide them to our accountants? Have we written them down for future reference? Should we be using a password manager? Have we considered two-factor authentication? The technological changes our profession faces develop constantly, morph frequently, and pose new and complex questions and challenges. We must recognize the changes and prepare to confront them. For instance, Apple’s new iOS 8 provides continuity among your computer, your iPhone, and your iPad. You can answer calls on any device. Similarly text messages can be visible on all of them unless you turn off those features. Walt Kelly’s Pogo repeatedly said, “We have met the enemy and he is us.” Hopefully he isn’t correct. William Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP. March/April 2015 SAN DIEGO LAWYER 17
Small Talk: A Roundtable Discussion
Attorneys discuss the foremost issues facing solo practitioners and small firms in going and staying solo By Jeremy Evans, Photos by Jason de Alba On Thursday, March 19, 2015, five attorneys gathered at the Bar Center at 401 to discuss the leading issues in “going solo.� SDCBA President Richard Huver, also a solo practitioner, led the discussion, with topics ranging from opening and running a law practice and business, to obtaining and sustaining a successful clientele base, to tips for those looking to go out on their own for the first time. The participants, Lisa Frank, Dan Kehr, Tim Richardson, and Katie Spero, have very different practices, and their years as solos are varied, so while their experiences are quite different, the discussion showed that there are some universal challenges and opportunities that they all share. Thank you to Litigation Services for providing a court reporter and transcript for this roundtable discussion. 18 SAN DIEGO LAWYER March/April 2015
Small talk: A Roundtable Discussion Biggest challenge of opening your law practice With a court reporter diligently transcribing each word, Richard Huver began the roundtable by asking attorneys to share the biggest challenge faced in opening their law practice. Lisa Frank, who was the newest to small firm practice, with a firm that just opened this past November, shared that the start-up itself was a bit of a challenge, with general business concerns that included but were not limited to finding the appropriate space and software to fit their needs. She stated, “I do think putting on that business hat when you open the door and trying to determine whether or not there will really be clients there [is a challenge]. And, fortunately for us, we’ve been really lucky and there have been.” Richard seconded Lisa’s point and provided that “the biggest challenge was learning to wear the business hat, not just the lawyer hat.” Katie Spero said “dealing with the load of work,” citing that the unpredictability of a clients’ needs and making business decisions for the law firm could be a bit of a challenge. “Sometimes it's a very manageable load of work and then there are times of the year, either because of the nature of what we do or, you know, sometimes we have a business client that decides to get a new contract and expands and hires 35 people all with the same start dates, all with the same processes, so that it sort of feels like it balloons out. And figuring out how to manage that balloon, do we have enough staff to handle it? Is it worth
Lisa Frank
hiring a new person? Can we sustain a new person? Can we train a new person? All of those kinds of questions, “ Katie said. Tim Richardson, who practices in criminal law shared, “Being solo, the toughest part is getting the clients in, because once the case is over, it's done. It's not like a business attorney — they have clients and they constantly can bring in more business. Once my client's done, he's gone.” Dan Kehr added, “You have to spend 50 percent of your time doing good work and 50 percent of your time bringing new work in. And if everyone in your firm is doing that, then you have to do it even more. But good work breeds more good work.”
Best things about going solo As the discussion progressed, each of the attorneys was eager to share what they considered to be the best part of solo practice. Each agreed that the independence was incomparable, and Dan added “flexibility, control, and dancing to the beat of your own drum.” For Tim, the flexibility has also been key. He shared, “It was great when my son was young. He was involved in Little League, and I could leave the office at two or three. I was his manager for years…looking back, I wouldn’t have traded that for anything.” Lisa agreed, saying that her transition to small firm life “has been such a life changing decision. Being able to set my own hours and have nice balance so I can spend Richard Huver March/April 2015 SAN DIEGO LAWYER 19
Small Talk: A Roundtable Discussion
more time with my kids is really fantastic.” Katie, a mother of three, echoed the work/life balance piece, and also shared that it is a beautiful thing to have created something and to have the ability to watch it grow.
What drives the decision to go out on your own? “I came out of law school working for a very large law firm and going to it every morning saying ‘I wish I had my own firm.’ And then I sort of fortunately/ unfortunately got laid off in the recession of 2009 as a very new attorney. And had the fortunate life to work with a lot of solo practitioners and small practitioners. People who were sometimes just one lawyer, sometimes two or three lawyers, sometimes a lawyer and five paralegals,” said Katie. Dan said he "learned a lot and eventually moved into a large firm before coming back to solo practice," adding, “no lawyer should go solo because they cannot find a job.” Richard agreed advising that “if you cannot find a job, find contract work” with other attorneys. The participants agreed that experience was crucial, whether before, during, or after law school and that the type of law you practiced mattered. Lisa added that starting right out of the gate would have been very difficult in litigation because of the cost, adversarial nature, and experience needed. Tim opined that perhaps criminal defense was an “easier practice to begin” because the criminal defense bar is and has been very civil and encouraging. He added, “I don’t know if
Dan Kehr
there is anything anybody could have told me back then that would have scared me into not going on my own.” In the end, all agreed that having a passion for the law you practice and having a mentor were most important in starting your own practice, whether right out of the gate or after 20 years in practice. Each agreed that it depends on the attorney, their personality, and individual ambition.
On marketing to attract clients and grow your business Richard asked, “Would you say the biggest change in marketing has been the Internet?” and all participants agreed. Tim said, “People can come out of high school and create a website that makes them look like they’re the greatest lawyers in town.”
Katie Spero
For social media, the discussion centered on the use of Facebook and LinkedIn for marketing purposes, while nearly all roundtable participants used LinkedIn, only one used Twitter. None used Instagram, but all had personal and/or law firm Facebook accounts. To the humor of all in attendance, Dan Kehr posted a picture of the roundtable participants on Facebook during the roundtable. Katie said there is often incorrect information on social media about immigration issues, and explained, “I think it’s very important that immigration lawyers are always clarifying the truth and making sure that people
20 SAN DIEGO LAWYER March/April 2015
Small talk: A Roundtable Discussion
are getting good resources, so I do post a lot about immigration, not necessarily as a marketing tool, but more because that is what I’m interested in.” She noted that she posts legal news primarily to Facebook. Explaining her strategy, Lisa said, “I am publishing articles periodically, and if we publish them, we’ll post them to LinkedIn and put them out there.” Tim Richardson added that social media marketing has been hard for the older generation of attorneys to accept and use, while the practice of law has become somewhat easier with access to online resources, and admitted that his start in marketing was through “yellow pages” advertising.
Things you wish other attorneys would have told you before hanging your shingle “One of the lessons I learned about five years in that I wish I had known at the beginning was to establish your family and friends discount up front and don’t deviate from it. Otherwise, you’re going to be doing pro bono service for the rest of your life,” Dan said. A chorus of “yes” and “good advice” followed from all of the participants. Richard agreed, and added that he wished he would have known the importance of “having a mentor, getting proper training, [and] having available resources.” Tim agreed on the mentorship part, adding, “Running the business is the easier part, learning to practice law is difficult – you have to learn it. I was able to do it because I had a year of experience at the Public Defender’s Office my last year of law school, and then I worked for Grimes and Warwick for a year. And even then it was still difficult learning it, and I was just doing one thing – criminal defense.” Katie mentioned that having a support system is essential, and also opined that experience was key. “There are people out there who work through law school.” They have a great opportunity to learn while they’re still completing their degrees.” Lisa added that receiving “practical legal education” was paramount to success in practice.
Tim Richardson
Useful technology for solo practitioners Richard noted that he added e-mail to his phone a year and half ago, adding that it was a double-edged sword of being available and too available. In discussing specifics, Lisa said, “I’m a big fan of Clio, which is our law practice management software…it’s been amazing. I was really worried about setting up a firm and having good billing software and software for contacts and it makes my practice so easy.” Katie said, “We use LaLa Chicks. For immigration you just have to have a software program where you can prepare forms, track client information, store company contact information – it’s a great service.” She also noted that she likes a new service called 99 Designs for custom branding for stationary, website, and business cards. Tim said in his practice, he finds “Crime Time” useful, saying, “one of the most complicated areas is felony sentencing – it’s been changed so you can type in the offense and any priors and it will tell you what the maximum sentence will be.” In discussing "the cloud," the attorneys brought up their initial fear of use because of the possibility of breaching client confidentiality. Dan added, “We’re trying to be as paperless as possible.” A mix of the attorneys scanned everything and kept electronic files, some had box files, while others loved the use of the cloud and praised the
March/April 2015 SAN DIEGO LAWYER 21
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advance of this technology. Four of the five used a five-to-seven year policy for retaining client files, while another utilized a one-year policy and mentioned that the State Bar of California did not have a set amount of time, just that files should be kept for a “reasonable” period.
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Tim: “I'm from Houston. My older brother got married, but he was still living in the same neighborhood where I grew up. And he was as a member of the parish that I grew up in, and he somehow became friends with the parents of this girl I used to date when I was in high school. And so they were at the wedding. And so when I met [my brother] I was living out here [so] I flew back to Houston. It had been maybe 20 years since I'd seen him. I think I even gave him my card. And then, about a month or two later, I got a call from this woman who lived in Florida. And her son lived here in San Diego and he got arrested on a felony. And somehow that woman in Florida knew these people who were the parents of this girl I used to date in high school.” Dan: “I backed into him! Well, it’s between that and the car dealer who drove my wife’s car to my office for me to test drive to make sure it was okay to buy, but who needed an estate plan as I started talking to him in the car.” Dan added that he ended up doing real estate and corporate work for the gentleman whose car he backed into that day. All participants had a big laugh at this story. Lisa: “My daughter plays competitive soccer. I'm surprised how many clients I've gotten from talking to parents on the sidelines. Despite my obnoxious crazy soccer mom personality, somehow we still manage to develop some business on the sidelines.” Katie: “I think the most unique is [when] I was at Halloween party in full costume and the person that hired me was also in full costume overheard me complaining to a friend of mine about the government agency. Just you know like, ‘oh, this frustrating thing happened this weekend.’ I was upset. And they came over
small talk: A Roundtable Discussion and asked if I practiced immigration law and we had sort of an impromptu conversation while dressed up in completely ridiculous clothing. I was dressed at Kelly McGillis from Top Gun…my husband was in a flight suit.”
Share some stories of professionalism, integrity, and civility you have witnessed during your time practicing law One attorney responded that while going through a divorce, on the eve of trial (three days to go), the attorney needed a time extension in a heated case. Opposing counsel did not fight the extension. The judge granted it. Tim opined that for the most part criminal law is civil, likely because unlike private depositions in civil matters before trial, a judge supervises everything and that the parties are not fighting over money helps. Moreover, district attorneys and representatives for the People “do justice” versus being zealous advocates for a client, cause, thing, or money. Tim provided a story about when a deputy district attorney in a matter agreed to a plea because the evidence was bad, yet when presented to a judge, the judge refused. The deputy district attorney agreed and insisted that the matter be moved to another judge,
who approved the plea agreement. Katie shared an example where in the first case for the attorney, the incorrect form for the appearance was completed and handed over to the court. However, before court was in session, the judge and opposing counsel explained that the form was incorrect (“off the record”) without embarrassing the attorney in front of the client.” In the last story of the day, Lisa shared, “I went to trial with a former partner. And opposing counsel were very, very green new lawyers, [it was] their first trial and I was really impressed by the way that the partner with whom I was working really kind of mentored them a bit through the process. Obviously, it's an adversarial proceeding, we're at trial. But where he could, [he would] kind of give them some pointers and tips, obviously in a way that didn't affect the case, but really kind of mentored them to really figure out what they were doing which was really gracious. Our profession could use more of helping each other out and mentoring one another.” Overall, it was a session filled with a lot of good advice from some terrific attorneys. Jeremy Evans (jeremy@csllegal.com) is Managing Attorney of California Sports Lawyer.
Richard Huver (rhuver@huverlaw.com), 2015 SDCBA President, is the Principal of The Huver Law Firm. Richard practices personal injury law. Lisa Frank (lisa@kasperfrank.com) is a partner and co-founder of Kasper & Frank LLP. Lisa practices labor and employment law and has been part of a small firm since November 2014. Tim Richardson (tjr@tjrlaw.com), Law Office of Timothy J. Richardson, is a criminal defense lawyer and has been a solo practitioner for 18 years. Katie Spero (katie@malitzlaw.com) is one of two attorneys with Malitzlaw, Inc. Katie practices immigration law and has been a small firm/solo practitioner for six years. Dan Kehr (dan@kehrlaw.com) is the CEO and founder of Kehr Law, APC, a four attorney firm. Dan practices business and real estate law and has been a solo practitioner and in a small firm for ten years. March/April 2015 SAN DIEGO LAWYER 23
Journeys:
Branching Off Three local attorneys and their decision to go solo By Elizabeth Blust
Many law students and attorneys dream of working for a large firm with dozens of attorneys and a large support staff, and for many that dream becomes a reality. But people change, and some lawyers at large firms find themselves dreaming a different dream, one that would take them into the world of the sole practitioner or smaller partnership. Are these sweet dreams, or nightmares? Three local attorneys who started big and went solo shared their stories with San Diego Lawyer.
James Iagmin Williams Iagmin, LLP When James Iagmin took over as managing partner of Gomez Iagmin in early 2013, he saw it as a natural progression of his career. He had been training many of the new attorneys, particularly in catastrophic personal injury cases. This practice group had about seven attorneys, with a handful of others focusing on mass torts, and support staff of 15. As the firm continued to grow, so did the administration. “I was getting farther away from my clients, delegating more,” Iagmin said. “That’s what managers have to do.” But Iagmin found he missed the regular interaction with his clients. “On the plaintiffs’ side of personal injury cases, my clients have suffered significant loss.
24 SAN DIEGO LAWYER March/April 2015
They may be badly hurt or may have lost a loved one. They are going through a difficult period. I not only navigate the legal system for them, I absorb the stress and uncertainty so they can heal.” While it may not surprise anyone to hear he missed the client relations, he was a little surprised himself by how much he missed his contact with the legal system. “I love the law. I love my practice. I love doing depositions. I learn a lot, meet people. They don’t always like me, but if they understand it is a system and a process, it can be a good experience. “By the last half of that year [as managing partner], I began having these realizations that I was spending a lot of time in meetings. I was staying later, and I had a harder time ‘turning it off’ when I got home.” He sought counsel from an old friend, SDCBA Past-President Jon Williams, who at the time was partnered with Steve Boudreau and who had been with Higgs, Fletcher & Mack, LLP and Ross, Dixon & Bell, LLP. “Jon is smart and a good listener,” Iagmin said, “he also knew that Steve was thinking about retiring." Williams told Iagmin he was very talented and that he was ready to take the leap to solo practice. Williams said over and over again: “Do this, and in six months’ time, you will have no regrets." “It was hard to think about making that transition when I had a home, kids, and a
mortgage,” Iagmin said, “but my wife helped me see that having balance and stability was more important than the financial rewards of being the managing partner at Gomez Iagmin.” Iagmin realized that being a manager was not his calling. He left Gomez Iagmin on a Tuesday and started Williams Iagmin the next day. Now, Williams and Iagmin share an office in a nearly 100-year-old building on State Street. They run separate practices, with Williams doing exclusively appellate work, and Iagmin focusing on serious personal injury cases. Boudreau is Of Counsel. “It was tricky that first year,” Iagmin said. “I worried about balancing costs and overhead.” Iagmin said he was fortunate that he learned how to do fundamental administrative tasks, like service, filing and NODs, early in his career, so that he knew how do to those things after years of having a staff to do them for him. Now in his second year with Williams, Iagmin is feeling reconnected with his clients. His wife is his accountant. He has control over his schedule, so he can spend more time with his two young sons. “I’m blessed and privileged to be able to help people who are going through [difficult times],” he said. And he has advice for anyone considering “going solo,” especially with a practice built on contingent fees: “Be the best lawyer you can be, manage your overhead, and be a good saver.”
Randy Rechs started as a clerk with health care defense firm Neil Dymott at a time when the firm had about 40 lawyers and was launching its satellite office in Palm Desert. After about three and a half years there, he left to form a partnership for about a year before going truly solo. “I’m glad I worked in a big firm,” Rechs said. “I worked with great lawyers and learned from the best. Because of that experience, I was able to hit the ground running when I was ready to start my own firm. “I wanted to be able to pick and choose my own clients. I wanted the flexibility to have a family and set my own schedule. I wanted to try my own cases and do my own thing.” Starting a small firm and then a solo practice had its disadvantages. “Of course, you’ve got issues with making your overhead,” Rechs said, “because in the
beginning, you don’t know how much work you’re going to have, you have no regular paycheck. You go from a firm that was good to you, with benefits and two secretaries and then it’s just you. You’re the one dealing with the furniture and the phone lines. It was a real struggle for about six to seven months, but by the end of the first year, I felt that good things were happening. “I have three children, and I was able to coach all of their teams, be at all their games and their plays, all those things.” Rechs represents mainly plaintiffs these days, a switch from his days with Neil Dymott, although his practice is still “100% civil litigation.” He regularly hires clerks and interns, some of whom have become associates before moving on. “I have a business model,” he said. “I don’t want to have to get too big, where I would miss the kids.”
Patti Zlaket began clerking on a limited basis at Casey Gerry while waiting for February 2009 bar results. The clerking led to contract work which led to her becoming an associate there in 2011. “It was wonderful, without question, working with seasoned, experienced professionals,” she said of her years at Casey Gerry, a firm of about 15 attorneys and 18 support staff members. “It was the perfect place to begin my career as a lawyer. They became my mentors and gave me the opportunity to grow in the profession.” So why leave? Zlaket and her father,
former Arizona Supreme Court Chief Justice Thomas Zlaket, “had often talked about how cool it would be to work together,” the younger Zlaket said. “He’s 73 now, so we realized that if we were going to do this, we needed to do it! “There were a lot of wonderful reasons to stay where I was, but the window of opportunity to work with my dad was a small one.” Zlaket left Casey Gerry in November 2014 and opened her plaintiffs’ litigation practice in downtown San Diego in January of this year, partnering with her father who enjoys a thriving practice in Tucson, Arizona and is also licensed in California. “I have the freedom and independence to run my office in San Diego,” Patti Zlaket said. “Dad has experience with mediation and arbitration, and he has done expert consulting, so we’re hoping to bring that into the practice as well.” As for the transition to a small practice, Zlaket admits that “for all the planning, there were a million things I hadn’t thought about. At first, there was a constant reprioritization – like you want to research which accounting system to use, but you really need to buy letterhead – but I’m in a nice rhythm now that I’ve been at it for a few months.” Zlaket, like Iagmin and Rechs, notices
Patricia Zlaket
Randy Rechs Law Office of Randall C. Rechs
that being a good lawyer does not automatically mean being a good business manager. “Like most people who make this jump, it’s wonderful to have flexibility and independence, to chart my own course, to decide what kind of practice I want to have, and to make those decisions for myself and my clients. I know how to be a good lawyer, but I’m still learning how to be the best business manager I can. “I had become spoiled having had so much support at a large firm – plenty of letterhead and pens, someone to answer the phone,” Zlaket said. “Now when I put something in my ‘out’ box, nobody comes!” Even when our dreams come true, they are still subject to reality checks. As the characters in the Stephen Sondheim musical Into the Woods tell us at the beginning of Act II, “Wishes may bring problems such that you regret them/ better that, though, than to never get them.” Fortunately, none of these attorneys expressed any regret in changing what they wished for and making those wishes come true. Elizabeth Blust (egblust@blustlaw.com) is a solo practitioner.
Zlaket Law Offices, APC March/April 2015 SAN DIEGO LAWYER 25
Innovative Ways to Attract New Clients Marketing that Really Works for Small Firms and Solo Practitioners
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Terrie S. Wheeler, MBC Professional Services Marketing, LLC
In order to attract new clients, lawyers need to understand marketing. Lawyers quickly acknowledge marketing is not something they learned in law school, and that “doing marketing” doesn’t come naturally to them. If lawyers are really honest with themselves, most engage in marketing activities because they feel they have to, not because they enjoy the process. The vast majority of lawyers we work with simply want to do what they do best: practice law. Enter, the article you are reading right now; the purpose of which is to remove the mystique from marketing by focusing on innovative and results-oriented strategies. Contrary to popular belief, there is not a direct correlation between spending a lot of money on marketing and attracting new, high quality clients. In fact, many lawyers who throw money at marketing hoping to advertise their way to success end up disappointed with the results. The reason? Successful marketing is about relationship building. Ask your best clients how they found you. It is highly likely they were referred to you by someone they trust (friend, family member, former client). This article offers progressive strategies that won’t break the time or money bank. At the end of each section you will find a “Be Innovative!” idea you can implement right away.
26 SAN DIEGO LAWYER March/April 2015
How can I be More Innovative? The concept of finding “innovative” strategies to build your practice may sound illusive. To put your mind at ease, consider this concept: The very best marketing for lawyers can be accomplished by leveraging the activities you would be doing anyway. Like what you ask? If you love boating, invite a prospective client or referral source to join you. If you are a runner, forego running alone in lieu of joining a running club to meet new people. Don’t just stand on the sidelines at your kids’ soccer games, make a point of engaging with other parents. Being innovative in marketing means finding ways to turn your interests and involvement into opportunities to meet others. At its core, marketing should be fun for you and for your contacts.
I Didn’t Go to Law School to Be a Sales Person Know the difference between sales and marketing. Marketing is about the messages you convey, and sales is about asking the right questions. Marketing is what you do to build name recognition in the marketplace. You are marketing when you provide exceptional client service, add content to your website, write an article, speak to a group, make a referral,
host an event, write a proposal, research a prospective client or referral source, and attend trade or professional association meetings. You market through your visual identity, being quoted in the paper, serving on a board, and engaging in social media. Sales is the art of asking the right questions— NOT the proverbial dog and pony show where you talk about who you are, your credentials, and what a fabulous lawyer you are. Sales is not about you. It is about the person sitting in front of you, and your ability to help that person solve a problem they are facing. Sales involves asking probing questions, listening, and digging deeper. As a lawyer, you are inherently good at sales (yes, I really said that!). Law school trains you to be good in sales by helping you learn the art of conducting due diligence on a business deal, leading discovery in litigation, selling your case to a jury. You will be amazed at what an exceptional sales person you are when you start the conversation with, “So, tell me about your situation,” or “What problem are you trying to solve?” or “Let’s talk about why you are here today.” Be Innovative! - Create a list of questions you can ask a networking contact or a prospective client. Save the questions on your phone or tablet so you will always have them handy.
Branding? You Are Your Brand ”Branding” is a term that can strike fear into lawyers because it sounds advertisingoriented. Branding is about identifying what makes you unique and deciding what you want to be known for, then consistently communicating these messages to the world. Like picking a major in college, branding means choosing the niche within which you want to be known and being on the “short list” of lawyers practicing in this area. If you practice family law, you might want to develop your brand around working with business owners, physicians, military families, women, collaborative law, or foreign adoptions. If you are a business lawyer, you might want to develop your brand around a particular industry like manufacturing, family-owned businesses, woman-owned businesses, or professional services firms. Once you have defined your niche, bring your brand to life through your communications, logo and materials, website, social media posts, events, elevator message, blogging, writing articles, and delivering presentations. Be Innovative! - Ask your contacts and clients to tell you what they think you are best known for. Review the responses and work them into everything you do.
Become a Thought Leader: It’s Time to Engage on Social Media Word on the street is, you need to be doing “more” with social media, that social media is here to stay, and that you’ll be left in the dust if you do not jump on board. Actually, it’s true. But there are a few concepts and ideas that will help you build a bridge to social media engagement that will not overwhelm you. The ultimate goal of social media is to take your knowledge and expertise and get in front of people who care. The concept is called “thought leadership.” You can become a thought leader if you: • Create an All-Star LinkedIn profile. LinkedIn is for professionals. You are a professional. Therefore, you must have
a LinkedIn profile. Make sure you add a professional picture, write in first person, and let your enthusiasm show through. Then, connect with people in your network; but only those you know. Your goal should be to have over 500 contacts. You can do it. • Join groups on LinkedIn. Do a search for groups to “join.” Find those that attract prospective clients and referral sources. Join your law school alumni group. You can join up to 50 groups! • Engage with your groups. Add substantive comments to group discussions, start your own discussion, and comment on others’ discussions. • Create company profiles on LinkedIn and Facebook. Make sure your firm has a presence on both sites and that your company profiles are accessible through your email signature block and on your website. • Create content and post it. Being a thought leader is all about providing helpful and relevant information to your contacts. Develop a calendar of posts. You can find excellent material to post by setting up Google Alerts (www.Google.com/alerts) on key words and topics you are interested in. Use a social media aggregator service like www.HootSuite.com and schedule a whole month or two of posts in advance. • Blog. The word “blog” is both a subject and a verb. In this instance we are talking about the action verb, blog—the act of writing timely and relevant 200–400 word blog posts – then promoting your blog posts to the LinkedIn groups you have joined, posting a link to your blog on your LinkedIn status update, and integrating your blog with your website. • Offer free webinars. Several resources, like www.GoToWebinar.com, allow you to easily offer free webinars to your contacts. In doing so, you will develop a following of people interested in your expertise. Be Innovative! – Schedule a recurring appointment on your calendar each day for
10 minutes and spend that time exclusively on enhancing your online reputation through social media.
Join a Trade Association and Become Active A short note related to bar associations. Use your bar association(s) to build relationships with your colleagues, and to pursue your own professional development through CLE offerings. Over time, you will likely build solid relationships with other lawyers leading to friendships and referrals. In addition to your bar association activities, join a trade association attracting prospective clients or referral sources. A few tips: • Research before you join – ask your clients and referral sources what organizations they are involved in. Attend a couple of meetings before you join. • Get known – attend as many meetings as you can. If you can’t make the commitment to attend the meetings, don’t join right now. • Extend yourself – offer to write for the organization’s publication and speak at monthly meetings on topics of interest to members. • Follow up with members – when you find someone you would like to build a relationship with, add them to your sales pipeline (keep reading). Ask them to coffee to learn more about them. Ask great questions. Determine action steps and commit to following up. Be Innovative! – Offer to write a column answering common legal questions members have; interview a few members you hand-pick for content for your column (and great networking with the members you most want to meet!)
Stand Up and Stand Out in your Community In addition to your pro bono commitments, consider becoming a non-profit board member, or volunteering in your community. Your clients and referral March/April 2015 SAN DIEGO LAWYER 27
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Annual awards luncheon and Celebration of community Service Friday, May 1 12:00 p.m. - 1:30 p.m. Westin San Diego (Emerald Plaza) Emerald Ballroom 400 West Broadway San Diego, CA 92101 To register visit: www.sdcba.org/2015awardsluncheon Thank you to our event sponsors:
sources want to see that you are focused on more than just billable hours. Make sure the organization you become active in has a mission you deeply support and believe in. If it doesn’t, you will lose interest. If you are an exceptional board member or volunteer (prepared, attends meetings, asks great questions, follows through on commitments), you will undoubtedly be perceived as an excellent lawyer. Be Innovative! – Make a list of three organizations you are interested in serving. Schedule time on your calendar to investigate the board appointment process online and follow up with your top choice.
Create an Enterprise: Run your Practice like a Business Lawyers do not learn how to run a business in law school. Running your law practice like a business involves developing specific processes for everything you do and a commitment to the profitability of your firm. Read this great book by entrepreneurial guru, Michael Gerber: The E-Myth Attorney: Why Most Legal Practices Don’t Work and What to Do About It. This is one of THE best books available on how to run your law practice. Be Innovative! – For every task and function at the firm, (developing leads, answering the phone, greeting clients, filing documents, hiring new staff, conflict checking, opening new files, greeting visitors, client intake, case strategy) record your process and create a process manual.
You are a Sales Person: Now Develop a Sales Pipeline We have given you a few paragraphs to accept that while you are a lawyer who sells sophisticated legal services, you are a sales person nonetheless. As such, we encourage you to create a “sales pipeline” of your best current clients, prospective clients and referral sources and make a point of reaching out to these contacts throughout the year. Add reminders to your calendar to follow up with each person. Track when you last saw the person, opportunities you see, next steps, and the date you plan to follow up. You
also want to use your sales pipeline to track current and projected revenue. Be Innovative! – Do your research. Before you meet with a contact, spend 10 minutes reviewing their website, biography and LinkedIn profile. Do a Google search on the person and see what interesting facts you can find.
The Art of One-to-Many: Develop your Base of Referral Sources As a lawyer, you rely on referrals from current and past clients, as well as from other lawyers. Building your base of referral sources is a “one to many” strategy. A strong relationship with one person could lead to many new clients in the future. So how do you attract more A-level referral sources? Start with an analysis of your current clients over the past two years. Identify for each client, who referred them to the firm. What do the referral sources have in common? Maybe they are bankers, CPA’s, social workers, therapists. Whatever the mix, commit yourself to meeting more people like your best referral sources. Offer something of value to prospective referral sources. Remember the key to building great referral relationships is to ensure they are mutually beneficial. Lawyers have a reputation of asking for referrals but not giving very many. Commit to developing a few really great referral sources, then do everything you can to also refer business back to them. Be Innovative! – Develop a system to track referrals you make, and those you receive. Develop a rating system based on the professional’s substantive knowledge and past successes before you make a referral.
The Best Athletes Need a Coach: So do You! Consider the value and benefit of hiring a personal marketing coach to guide and direct your marketing efforts. A marketing coach brings an experienced perspective in the legal industry and is able to help you personally assess your practice, put a marketing plan in place, and will work with you to implement your marketing and sales plan over the next year. Lawyers are extremely smart and focused. If you are also motivated and driven to develop new business, a personal sales and marketing coach might just be the right move for you. Be Innovative! – Gather a group of likeminded attorneys and other professionals and create a monthly “coaching circle,” holding one another accountable and supporting one another’s successes in marketing.
Anyone Can Innovate— Even You Success in sales and marketing is not just for the high-profile, extroverted few. The nebulous concept of success can be achieved by every lawyer in private practice; especially you. You simply need to focus on innovative ideas that are low cost and deliver the highest possible impact. Terrie Wheeler is the founder and president of Professional Services Marketing, LLC (PSM). Terrie has spent the last 25 years as an in-house marketing director, marketing consultant and marketing coach to lawyers and law firms. She currently teaches marketing and client service at three Midwestern law schools and is a MN Supreme Court-appointed member of the Lawyers Board of Professional Responsibility. You can attend PSM’s free Marketing Motivation Webinars at www.PSM-Marketing.com, or contact Terrie at twheeler@psm-marketing.com.
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An in-depth look into our Workers’ Compensation Appeals Board Did you know?
The San Diego County Workers' Compensation Appeals Board is located at 7575 Metropolitan Drive behind Friars Road.
By Brody Burns Photos by Barry Carlton
S
an Diego County features a number of specialty courts. The following is a brief look into the San Diego Workers’ Compensation Appeals Board, the workers’ compensation court which serves all of San Diego County and Imperial County. If you are injured on the workplace anywhere from San Clemente to San Ysidro, from El Centro to Carlsbad, from the Arizona Border to the Pacific Ocean, then there is a good chance you may end up in Mission Valley. That’s the location of the San Diego Workers’ Compensation Appeals Board (WCAB), where a group of eight judges hears thousands of cases a year. The San Diego WCAB is one of the busiest workers’ compensation courts in the state and is an important part of the San Diego legal climate.
1
The WCAB is a legislatively created part of the executive branch that exercises judicial power over persons who are injured in the workplace. As Presiding Judge Cliff Levy told me, to fully understand the role and responsibilities of the WCAB, one must first look to history. Origin of Workers’ Compensation in California On January 3, 1911, California’s 23rd Governor, Hiram Johnson, gave his First Inaugural Address. In the speech, Johnson delivered a stinging criticism of labor conditions in California. He said, “In this State, all parties stand committed to a just and adequate law whereby the risk of employment shall be placed not upon the employee alone, but upon the employment
http://governors.library.ca.gov/addresses/23-hjohnson01.html
http://www.ssc.wisc.edu/wlsresearch/publications/files/_private/Hoonakker-Choi-CarayonWarren_Underreporting.in.Surveillance.Systems.for.Occupational.Injuries.and.Illnesses.pdf
2
32 SAN DIEGO LAWYER March/April 2015
3
itself.”1 Much of the impetus for that statement came from President Theodore Roosevelt. In 1908, President Roosevelt urged Congress to pass the Federal Employer’s Liability Act, arguing that it was an “outrage” that “the burden of a [workplace] accident fell upon the helpless man, his wife and children.” 2 Governor Johnson embraced this ideal. He supported “Employers’ Liability Legislation” which embodied President Roosevelt’s vision “that the industry must bear the monetary burden of its human sacrifices, and that the employee who is injured shall have a fixed and definite sum.”3 These workplace standards advocated by President Roosevelt and Governor Johnson would play an instrumental role in the
http://governors.library.ca.gov/addresses/23-hjohnson01.html
creation of a worker’s compensation system in California. Up to that point, the injured employee had little recourse in the event of a workplace injury. The California Legislature took action to reform the system. In 1911, they passed the Roseberry Act which created a voluntary workers’ compensation system. Then in 1913, the Legislature made the system compulsory with the passage of the Boynton Act. The Boynton Act also gave the independent Industrial Accident Commission (IAC) the judicial power to adjudicate disputed work injury cases. The IAC was the precursor to today’s Department of Workers’ Compensation (DWC).4 In 1927, the Department of Industrial Relations (DIR) was established as a cabinet-level State agency to manage the workers’ compensation system. The DWC is a sub-component of the DIR. Today the DIR’s mission is “to improve working conditions for California’s wage earners and to advance opportunities for profitable employment in California.” A major component of this mission is the administration of an “effective workers’ compensation” system.5 Current Workers’ Compensation System Today, the Division of Workers’ Compensation (DWC) is the judicial arm of the workers’ compensation system. The DWC is responsible for “providing administrative and judicial services to assist in resolving disputes that arise in connection with claims for workers' compensation benefits.”6 The system is swamped with a staggering amount of claims each year. Statewide, in 2013 there were 578,111 FROI claims (First Report of Injury) and 276,413 SROI claims (Subsequent Report of Injury) alone.7 To accomplish its mission, the DWC has 24 district offices, with over 170 judges, distributed across the State. The offices serve as courts of limited jurisdiction,
with the ability to exclusively adjudicate cases involving injured workers in that geographic district. The courts are comprised of judges who administer bench hearings and adjudicate trials, all without a jury. Certain counties have multiple WCABs, for instance Orange County has two and Los Angeles County has five. San Diego County has only one WCAB. Which means that one WCAB serves all of San Diego County and Imperial County, which is the largest geographical district in the State.8 San Diego WCAB The San Diego WCAB is currently comprised of eight judges: Presiding Judge Levy and Judges Linda Atcherley, Jeffrey Bruflat, Charles Ellison, James Gregory, Mark Romano, Andrew Shorenstein and Michelle Utter. These eight judges play a role in every workers’ compensation case in the district. Under state law, a judge must review and approve all settlements, in addition to conducting trials and mandatory settlement conferences, as a means of protecting the rights of the injured worker. This mandate creates an incredible workload for the judges. Judge Ellison described this workload, saying, “The devil is in the details. We have far more Labor Code Sections and Regulations to implement and supplement the Code Sections than does the Superior Court.” WCAB judges take an especially active role in courtroom proceedings. Presiding Judge Levy highlighted this role in saying, “The legislature was concerned with workers’ being taken advantage of, so they gave judges more discretion and power to be active participants.” Consequently, San Diego’s WCAB judges regularly intervene during court proceedings in order to, in the words of Presiding Judge Levy, “accomplish substantial justice.”
Caseload Presiding Judge Levy estimates that the San Diego WCAB administers over 12,000 Mandatory Settlement Conferences and over 4,000 trials each year. The Judges also must also approve all case settlements, conduct their own research, write their own opinions and respond to appeals. All of these tasks are done without the assistance of clerks, and with a very limited number of staff. Presiding Judge Levy is planning on adding an ninth judge in 2015. The court takes on a heavier caseload to allow more injured workers to see their day in court sooner. The heavy caseload benefits the injured worker, allowing for more timely resolutions to their situations. Presiding Judge Levy described this accelerated pace: “Under the current work load we are setting cases two to three months out. We understand that everyone would like to see the judge tomorrow, but we can get you in for a settlement conference in six to 10 weeks and for a trial in 10 to 12 weeks.” This is a stark contrast from the Superior Court, where it can take years for some civil cases to ultimately go to trial. Presiding Judge Levy spoke further on this topic: “People don’t want to feel like they are in limbo when they are injured. It is my goal to help everybody get their case to the finish line. The main goal is to ensure substantial justice expeditiously.” Path to Becoming a Judge For each of the eight current judges, the path to the bench went through the workers’ compensation system. Each of the judges actively practiced on the other side of the bench prior to taking on the role of judge. The specialized nature of workers’ compensation law necessitates that an applicant have a certain level of experience and knowledge prior to becoming a judge. Judge Atcherley highlighted this point explaining, “It would be beyond miserable to do this without any experience, and it
4
http://www.dir.ca.gov/DWC/educonf21/BoyntonAct_100YearHistory/BoyntonAct100YearHistory.pdf
7
https://www.dir.ca.gov/dwc/wcis/WCIS_tables/TABLE9-14/2013/Table_9.pdf
5
http://www.dir.ca.gov/aboutdir.html
8
http://www.dir.ca.gov/dwc/dir2.htm
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http://www.dir.ca.gov/DWC/dwc_home_page.htm March/April 2015 SAN DIEGO LAWYER 33
would take an inordinate amount of time.” For many of the judges, the position was an opportunity to serve the workers’ compensation community. An opportunity to ensure that the system works. As Judge Ellison said, “We judges are here to ensure that employers and injured workers are treated equally and fairly.” Judge Atcherley explains that she developed a great respect for the court throughout her years of practice as counsel for injured workers. This respect is part of what moved her to become a judge. She explains, “I have a great respect for the work the courts do and the effort it takes to do it. I felt that I would like to be part of that effort.” Presiding Judge Levy expressed a similar sentiment on why he was compelled to become a judge, he said, “After 25 years in practice I had a huge investment in my knowledge of this field of the law, and a sensitivity for the case participants, and the difficulties of the practice. I felt a need to
apply my experience broadly, to facilitate the cause of justice.” Climate of the Court The workers’ compensation community in San Diego, including judges and litigators, is a close knit community. Presiding Judge Levy estimates that roughly 150 attorneys make up this community of workers’ compensation attorneys in San Diego. It is a regular occurrence for an attorney to have multiple conferences or trials with the same judge during the course of one week. Judge Ellison describes this community as being “close knit, featuring a strong professional working relationship among the attorneys, hearing representatives and the judges.” Another aspect is the respect and professionalism of all the parties involved. One striking feature is the cooperative attitude of the court. Presiding Judge Levy described the role the judges have in
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helping create a cooperative atmosphere: “The court is trying to encourage reasonable compromise and cooperation. Not some level of gamesmanship or procedural advantage. Because at the end of the day this is all about an injured worker being able to get back to work and helping them restore their lives.” Judge Atcherley also spoke on this topic. “The work we do here is important,” she said. “Workers’ Compensation benefits prevent injured workers from becoming homeless, keeps food on the table, and, at its best, restores a person back to health and back to his/her own work or suitable alternate work.” President Roosevelt and Governor Johnson would be proud of the noble work done at the WCAB in San Diego. Brody Burns (brodyburns@sandiego.edu) is a student at the University of San Diego School of Law.
Meet The Judges Of The Workers’ Compensation Appeals Board Presiding Judge Cliff Levy
Judge Linda Atcherley
Levy became judge in 2005 and then became Presiding Judge in 2006. Prior to taking the bench, Levy handled state and federal workers’ compensation cases, and also represented public agencies. Levy earned his law degree from the University of San Diego. Levy, an avid Beatles fan, enjoys playing the guitar and studying German history.
Atcherley became judge in 2012. Prior to taking the bench, Atcherly represented injured workers for 25 years, first at Ludecke, Denton & Bunn and then in her own practice at Atcherley & McLaughlin, LLP. Atcherley earned her law degree from Western State University. Atcherley enjoys spending her free time outdoors.
Judge Jeffrey Bruflat
Judge Charles Ellison
Bruflat became a judge in 2012, and recently transferred to the San Diego WCAB from Long Beach. Prior to taking the bench, Bruflat practiced worker’s compensation as an applicant’s attorney and did personal injury work. Bruflat earned his law degree from Western State and his LLM from the University of San Diego. In his free time Bruflat enjoys golfing, martial arts and spending time with his wife and three children.
Ellison became judge in 2005. Prior to taking the bench, Ellison practiced on both sides of the Worker’s Compensation system – as a defense attorney with Parker & Irwin, Inc. and as solo practitioner representing injured workers. Ellison earned his law degree from Whittier College. Ellison enjoys playing grandpa to his five grandkids and running marathons and ultra-marathons.
Judge James Gregory
Judge Mark Romano
Gregory became judge in 2007. Prior to taking the bench, Gregory, a Certified Workers’ Compensation Law Specialist, worked on both sides representing injured workers and serving as a defense counsel. Gregory earned his law degree from the University of San Diego.
Romano became judge in 2012. Prior to taking the bench, Romano, a Certified Workers’ Compensation Specialist, worked in private practice and then with the State Compensation Insurance Fund. Romano earned his law degree from California Western.
Judge Andrew Shorenstein
Judge Michelle Utter
Shorenstein became judge in 2012. Prior to taking the bench, Shorenstein worked at Rose, Klein & Marias, LLP for 25 years, where he specialized in representing injured workers. Shorenstein earned his law degree from California Western School of Law. Shorenstein is an avid keyboardist, and currently plays keyboards for Thunder Road, a Bruce Springsteen tribute band.
Utter became judge in 2007. Prior to taking the bench, Utter worked as an attorney at the State Compensation Insurance Fund for 16 years. Utter earned her law degree from the University of San Diego.
March/April 2015 SAN DIEGO LAWYER 35
Investing Abroad The pros and cons of the EB-5 immigrant investor program By Teodora Purcell
The EB-5 Immigrant Investor program was created by the Immigration and Nationality Act (INA) of 1990 to stimulate the U.S. economy through capital investments made by foreign investors to create jobs. It attracts capital by facilitating U.S. permanent resident status (aka “green card”) for foreigners who make a $1 million USD (or in some cases, $500,000 USD) investment in an eligible business that results in at least ten U.S. jobs and benefits the U.S. economy.1 The pros of the EB-5 program to the U.S. are evident from the numbers. In FY 2014, 10,928 EB-5 petitions were filed with the United States Citizenship and Immigration Services (USCIS), 5,115 approved, and 12,453 pending, which translates into over $2.5 billion approved for investment and an additional $6.2 billion in capital awaiting federal adjudication, and the creation of thousands of U.S. jobs.2 EB-5 capital is also
an attractive low cost funding tool for project developers in the U.S., while it offers the foreign investor a path to permanent residency that is not visa backlogged and does not require sponsorship by a U.S. employer or relative. But is the EB-5 an easy and quick way “to purchase your green card”? EB-5 Requirements The EB-5 program includes two separate avenues: (1) Direct EB-5 investment – where the investor invests in an enterprise and plays a role in management or policy making, which will directly create ten jobs, or (2) Regional Center based EB-5 investment – where the investor invests in a USCIS approved regional center and plays a more passive role by having policy making authority. Both require: (1) the investment to be made in a for-profit, new commercial
The immigration EB-5 laws can be found at INA§203(b)(5); 8 CFR§204.6 and 8 CFR§216.6. https://iiusa.org/blog/government-affairs/uscis-government-affairs/citizenshipimmigration-services-uscis- adjudication-data-i526-i829-petitions-reveal-unprecedentedgrowth-eb5-program-fiscal-year-2014/ / 3 8 CFR §§204.6(e) & (h). 4 8 CFR §§204.6(e) & (f)(2). 5 8 CFR §§204.6(e) & (j)(4). The USCIS deems the two year period to commence six months after the adjudication of the I-526 petition. See USCIS Policy Memorandum, May 30, 2013
Pros and Cons of Direct and Regional Center EB-5 Investments The regional center (RC) is an entity designated and regulated by USCIS, which pools EB-5 capital from multiple foreign investors in job-creating economic development projects within a defined geographic region and designated industries.6 USCIS has approved approximately 600 RCs7 and 95% of the EB-5 petitions are based on a RC
CFR §204.6(e). http://www.uscis.gov/working-united-states/permanent-workers/employment-basedimmigration-fifth-preference- eb-5/immigrant-investor-regional-centers 8 The interest being offered and sold in an EB-5 offering by regional centers constitute securities. See Securities Act of 1933; Securities Exchange Act of 1934.). 9 For more information, see http://www.sec.gov/investor/alerts/ia_immigrant.htm 10 S.744, H.R. 2131, H.$. 4178, and H.R. 4659 in the 113th Congress
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36 SAN DIEGO LAWYER March/April 2015
enterprise;3 (2) a contribution of capital at risk in the amount of $1,000,000 USD, or $500,000 USD if the business is in a targeted employment area (i.e. high unemployment or rural area), aka “TEA”;4 (3) the investment to be used for creation of at least ten full time jobs for U.S. workers;5 and (4) the investor to establish the path and the lawful source of the investment.
investment. Notably, EB-5 RC investment funds are subject to U.S. securities and anti-fraud laws and regulations,8 and the Securities Exchange Commission (SEC) and USCIS are raising awareness of how the EB-5 program can be misused and of the importance of proper due diligence to be conducted by foreign investors.9 The direct EB-5 program is permanent, whereas the RC EB-5 program sunsets on September 30, 2015, but is expected to be reauthorized by Congress for another five years, and there is proposed legislation to make it permanent.10 With the direct EB-5 investment, the foreign national accomplishes not only an immigration purpose but also a purpose of investing in a business that he or she runs and that may provide significant return, whereas with the RC EB-5 investment, the rate of return is typically 0.5-2% and the investor plays a more passive role. However, the direct EB-5 investor must prove direct employment of ten U.S. workers, whereas, with RC EB-5 investment, the job creation is shown by a combination of direct, indirect and induced employment using reasonable economic methodologies. Most (but not all) RCs are located in $500,000 TEAs but there can be direct EB-5 investments that also qualify for the reduced capital. Both EB-5 options require the investor to be engaged in the "management" of the enterprise, which can be satisfied if the investor is a limited partner with the rights, powers and duties normally granted to limited partners under the Uniform Limited Partnership Act.11 Which EB-5 option to choose requires an individualized analysis of the investor’s circumstances and goals. No Fast Track EB-5 Process and No Guaranteed US Permanent Residence The EB-5 investors are not guaranteed a green card because of the lengthy process and possibility that the project in which they invest could fail or undergo material changes, and there is no expedite
8 CFR §204.6(j)(5) The USCIS requires that the I-526 petition be accompanied by a detailed and credible business plan compliant with the requirements in the precedent decision of Matter of Ho, 22 I&N Dec. 206 (INS Assoc. Comm’r, Examinations, 1998). 13 https://egov.uscis.gov/cris/processingTimesDisplay. 11 12
processing of EB-5 petitions. The process starts with the filing of an I-526 immigrant entrepreneur petition with USCIS, in which the investor must establish the lawful source of funds, document the path of the required investment, and show that the ten U.S. jobs will be created within two years,12 or that the jobs have already been created as a result of the investment. The filing of an I-526 petition alone does not give the investor the right to stay or work in the U.S. Current I-526 average processing time is about 14 months and the I-526 approval does not give the investor permanent residence. Rather, after the approval, if the investor is outside the U.S., he or she and dependent family members will apply for their immigrant visas at the U.S. Consulate in their home country, which requires additional documentation, security checks and adds another 6-12 months to the process. If the investor is in the U.S. in valid nonimmigrant status, he or she will adjust status to permanent resident in the U.S., which takes about six months.13 So after 2-3 years (provided no visa retrogression), the investor receives a green card that is conditional and valid for only two years. Within 90 days of the conditional green card expiration (i.e. between the 21 to 24 month after the green card approval), the investor must file an I-829 application to remove the condition on permanent residence with USCIS14, and prove that the investment has been sustained and that the requisite jobs have been created or will be created within a "reasonable time.”15 The current average I-829 processing time is 10 months and if unsuccessful, the EB-5 investor may not only lose the green card but end up in removal proceedings. If the I-829 is approved, the EB-5 investor receives his or her permanent green card. During this process, the EB-5 investment must remain in the enterprise until the condition is removed (i.e. for 4-5 years), whereas in all other employment based green card categories, the result is a permanent green card and no such
do;jsessionid=dbcqHwZ-eEZPOcoHaz5Ru. 8 CFR §216.6 15 8 CFR §216.6(a)(4)(iv) . In its May 30, 2013 Policy Memorandum, USCIS has interpreted “reasonable time” to mean one year, starting at the end of the conditional residence period. 14
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Investing Abroad Continued significant financial commitment is required. The EB-5 program accounts for less than 1% of the immigrant visas issued annually by the U.S. and throughout the process, investors are subject to the same background checks as applicants in any other visa category, and their ability to eventually apply for citizenship is the same as others. The INA allocates 10,000 EB-5 immigrant visas, of which 3,000 are reserved for the RC program, and no more than 7 percent of the visas can be allocated to any one country.16 Since close to 85% of the investors are from China, for the first time in September 2014, the EB-5 visas became unavailable for Chinese nationals, and EB-5 visa backlog for Chinese investors may be expected in 2015. There 16
are more significant immigrant visa quota backlogs in other categories of family and employment-based immigration, which is why the EB-5 still remains attractive. Despite the challenges investors may face in tracing the invested funds or in the job creation, and the possibility of visa backlog for some, the EB-5 is still a good option, although it is not the panacea for all foreign nationals seeking permanent residence in the U.S. There are other employment based visa options that may be available for the investor and these alternatives, if successful, lead to a permanent green card, do not require placement of a $1,000,000 investment at risk, and there are minimal concerns about visa availability. For the foreign nationals who choose the EB-5 green card avenue, it
is important to put together a competent team that includes an immigration counsel, as well as business, tax, and securities counsels, to advise on the multiple complex issues that go into determining whether the EB-5 green card path is the right choice for the client. Immigrant investors and entrepreneurs bring substantial value to the United States, not only through the capital they deploy or the jobs they create, but also with the knowledge and experience they bring to U.S. businesses, and working with such clients is very rewarding. Teodora Purcell (tpurcell@fragomen.com) is an attorney with Fragomen, Del Rey, Bernsen & Loewy, LLP.
INAยง 203(a) ; INA ยง204(1) & INAยง 202(a)(2).
No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA.
Celebrating Traditions The Iranian American Bar Association (IABA) displayed a HaftSeen table in the SDCBA member lounge from March 20 through March 27. The Haft-Seen is a traditional table setting included as part of the celebration of Norwuz, the Iranian New Year, which marks the first day of spring or Equinox. Seven items beginning with the letter "sin" or "S" in the Perso-Arabic alphabet are placed on the Haft-Seen. The seven dishes have various symbolic meanings including wheat or barley sprouts for rebirth of nature; garlic for health and wellness; vinegar for old-age and patience; apples for natural beauty and health; and more.
L-R: Affi Eghbaldari, Ramin Hariri, Hon. Tamila Ipema, Pejman Kharrazian, Arezoo Jamshidi, Parisa Weiss 38 SAN DIEGO LAWYER March/April 2015
Thirsty for Knowledge The San Diego Law Library expands its water law collection By Benita Ghura
W
ater law is the new buzz word at the San Diego Law Library. Our goal is to increase awareness and educate the public on the law’s impact on water in San Diego. We plan to accomplish this goal by reaching out to local water authorities and other water players, offering programs and distributing information on current water law legislation. In addition, we will provide greater accessibility to our unique water law collection housed at our downtown location. As part of our special water law collection, the law library provides access to a large number of historical documents produced in the landmark case of Arizona v. California, 373 U.S. 546 (1963). In 1952, Arizona filed a motion in the U.S. Supreme Court for leave to file a bill of complaint against California and seven public agencies of that State. Arizona wanted the U.S. Supreme Court to specify the amount of water Arizona was entitled to from the Colorado River and to limit the amount allotted to California. The trial took place over a two-year period and produced 234 witnesses, 4,000 exhibits, 22,500 pages of
reporter’s transcripts and 3,742 deposition transcripts. Available for public view, is a large selection of these documents kept in a special climate-controlled archival room at our downtown location. To view this unique collection, call us at (619) 531-3900 to schedule an appointment. The history of Arizona v. California can also be viewed through our online Libguide available at: http://calcountylawlib.libguides. com/waterlaw. This LibGuide organizes the material we have available in print and provides a history of important events leading up to the case, including a summary of the dispute and the important players involved. For more information about our water law collection, contact Gina Catalano, at gcatalano@sdlawlibrary.org. Benita Ghura (bghura@sdlawlibrary.org) is a librarian with the San Diego Law Library.
Distinctions Sullivan Hill Lewin Rez & Engel shareholder Gary Rudolph was recently elected 2015 President of the San Diego Bankruptcy Forum.
Hon. David Danielsen, Presiding Judge of the San Diego Superior Court, was honored with the Bench and Bar Service Award by the San Diego Defense Lawyers (SDDL), and Heather Rosing, shareholder and CFO of Klinedinst PC and SDCBA past-president, was named Defense Lawyer of the Year by SDDL.
Hon. Julia Craig Kelety of the San Diego Superior Court was named 2015 president of the San Diego Law Library board of trustees.
Procopio, Cory, Hargreaves & Savitch associate Jessica Swift was elected to the board of directors for Anti-Defamation League of San Diego.
Joe Leventhal, founder of Leventhal Law, was recently named president of the San Diego chapter of the Federal Bar Association.
Marian Gaston and Lisa Rodriguez were appointed to the San Diego Superior Court bench by Governor Jerry Brown in March.
Hon. Patti Ratekin, Commissioner with the San Diego Superior Court, received the Distinguished Jurist of the Year Award from the Southern California Chapter of the American Academy of Matrimonial Lawyers. March/April 2015 SAN DIEGO LAWYER 41
PHOTO GALLERY ANNUAL JUDICIAL RECEPTION Photos by Lauren Radack San Diego’s legal community welcomed the newest additions to our local judiciary and celebrated those who retired from the bench at the SDCBA’s Annual Judicial Reception on March 4. Thank you to event sponsors Thomson Reuters Westlaw, Manuel R. Valdez & Manny J. Valdez, Sempra Energy and Judicate West.
L-R: Amber Eck, Hon. Timothy Casserly, Jenna Crisci
L-R: Taryn Perez, Aaron Hughes, Jessica Castany
L-R: Hon. Enrique Camarena, Jodi Cleesattle, Jeremy Evans, Nicole Heeder, Hon. Melinda Lasater, Hon. Dwayne Moring, Hon. Patricia Garcia
Mike Roberts, Howard Franco
L-R: Hon. Jill Burkhardt, Lilys McCoy, Dave Fox
Hon. Laura Halgren, Matt Speredelozzi Bill Dato
L-R: Hon. M. Margaret McKeown, Richard Huver, Hon. Barry Moskowitz, Hon. David Danielsen, Hon. Judith McConnell
ADVERTISERS INDEX ADR Services, Inc.................................................................... 2 AHERN Insurance...................................................................48 Albertson & Davidson LLP................................................ 7 American Arbitration Association ..............................16 California Western School of Law................................15 CaseyGerry ............................................................................... 3 CPT Special Needs Trusts..................................................37
Craig Higgs ...............................................................................30 Eyewitness Expert Testimony.........................................37 First Republic Bank................................................................ 5 Fragomen, Del Rey, Bernsen & Loewy, LLP............40 Gomez Trial Attorneys........................................................12 Judicate West ..........................................................................43
Kathryn Karcher......................................................................15 Law Office of Terry L. Gilbeau........................................28 LawPay.........................................................................................10 Lawyer Referral & Information Service.....................39 Ron Stuart Mens Clothing................................................22 San Diego County Bar Foundation ...........................42
2015
LUB
100
EN PERC T C
SDCBA
100 PERCENT CLUB 2015 The San Diego County Bar Association’s 100 PERCENT CLUB is a special category of membershipthatindicatesanoutstandingcommitmenttotheworkdonethroughSDCBA programsandservicesinthelegalprofessionandthecommunity.Thefollowingfirms(five or more lawyers) are members of the 100 PERCENT CLUB for 2015, having 100 percent of their lawyers as members of the SDCBA.
Allen, Semelsberger & Kaelin, LLP Andrews Lagasse Branch & Bell LLP Atkinson, Andelson, Loya, Ruud & Romo Austin, Brownwood, Cannon & Santa Cruz Balestreri Potocki & Holmes Basie & Fritz Belsky & Associates Bender & Gritz, APLC Bernstein Litowitz Berger & Grossman LLP Best Best & Krieger, LLP Blackmar, Principe & Schmelter APC Blanchard Krasner & French Bonnie R. Moss & Associates Brierton, Jones & Jones, LLP Brown Law Group Buchanan Ingersoll & Rooney PC Butz Dunn & DeSantis APC Casey Gerry Schenk Francavilla Blatt & Penfield, LLP Chapin Fitzgerald Knaier LLP Circuit McKellogg Kinney & Ross, LLP Cohelan Khoury & Singer Del Mar Law Group, LLP Dietz, Gilmor & Chazen APC District Attorney’s Office Dostart Clapp Hannik & Coveney, LLP Duckor Spradling Metzger & Wynne English & Gloven APC Epsten Grinnell & Howell, APC Farmer Case & Fedor Finch, Thornton & Baird, LLP Fragomen, Del Rey, Bernsen & Loewy, LLP Frantz Law Group APLC Fredrickson, Mazeika & Grant, LLP Garcia, Hernández, Sawhney & Bermudez LLP Gatzke Dillon & Ballance LLP Gomez Trial Attorneys Goodwin Brown Gross & Lovelace LLP GrahamHollis APC Green Bryant & French, LLP Grimm, Vranjes & Greer, LLP Henderson, Caverly, Pum & Charney LLP Hiden, Rott & Oertle, LLP Higgs Fletcher & Mack LLP Hooper, Lundy & Bookman, PC Horton, Oberrecht, Kirkpatrick & Martha, APC Hughes & Pizzuto, APC Jackson Lewis PC Judkins, Glatt & Hulme LLP Kirby & McGuinn APC Kirby Noonan Lance & Hoge LLP
44 SAN DIEGO LAWYER March/April 2015
Klinedinst PC Konoske Akiyama | Brust LLP Law Offices of Beatrice L. Snider, APC Legal Aid Society of San Diego, Inc. Lincoln Gustafson & Cercos LLP Littler Mendelson PC Lorber, Greenfield & Polito, LLP McKenna Long & Aldridge LLP Men’s Legal Center Family Law Advocates Miller, Monson, Peshel, Polacek & Hoshaw Miranda Law Group, PC Moore, Schulman & Moore, APC Musick, Peeler & Garrett LLP Neil, Dymott, Frank, McFall & Trexler APLC Office of the San Diego City Attorney Olins Riviere Coates and Bagula, LLP Oliva & Associates, ALC Paul, Plevin, Sullivan & Connaughton LLP Pettit Kohn Ingrassia & Lutz PC Pope, Berger, Williams & Reynolds, LLP Preovolos Lewin & Hezlep, ALC Procopio, Cory, Hargreaves & Savitch LLP Pyle Sims Duncan & Stevenson APC RJS Law Rosner, Barry & Babbitt, LLP Rowe | Mullen LLP Sandler, Lasry, Laube, Byer & Valdez LLP Schwartz Semerdjian Ballard & Cauley LLP Seltzer | Caplan | McMahon | Vitek ALC Sheppard, Mullin, Richter & Hampton LLP Siegel, Moreno & Stettler, APC Simpson Delmore Greene LLP Smith, Steiner, Vanderpool & Wax, APC Solomon, Grindle, Silverman & Wintringer, APC Solomon Minton Cardinal Doyle & Smith LLP Solomon Ward Seidenwurm & Smith, LLP Stoel Rives LLP Stutz Artiano Shinoff & Holtz Sullivan Hill Lewin Rez & Engel Summers & Shives, APC Thorsnes Bartolotta McGuire LLP Walsh McKean Furcolo LLP Ward & Hagen LLP White, Oliver & Amundson, APC Wilson Elser Moskowitz Edelman & Dicker LLP Wilson Turner Kosmo LLP Winet Patrick Gayer Creighton & Hanes Wingert Grebing Brubaker & Juskie LLP Wright, L’Estrange & Ergastolo Zeldes Haeggquist & Eck, LLP
Sustaining Members The San Diego County Bar Association gratefully acknowledges its Sustaining Members.
PATRON MEMBERS Marc D. Adelman Ezekiel E. Cortez William O. Dougherty James P. Frantz Allen D. Haynie Van E. Haynie Rhonda J. Holmes Richard A. Huver Laura H. Miller Gerald S. Mulder Leo S. Papas (Ret.) Todd F. Stevens Thomas J. Warwick Jr. Andrew H. Wilensky BENEFACTOR MEMBERS Doc Anthony Anderson III Jedd E. Bogage Steven T. Coopersmith Alexander Isaac Dychter Douglas A. Glass Alvin M. Gomez J. William Hinchy Carl L. Sheeler FRIEND MEMBERS Steven Barnes Victor E. Bianchini (Ret.) Edward V. Brennan Jeffrey Alan Briggs Scott Carr Benjamin J. Cheeks Linda Cianciolo Douglas A. Cleary Dion M. Davis David B. Dugan Susan K. Fox Marc B. Geller William C. George Kenneth N. Greenfield Ronald Leigh Greenwald Ajay K. Gupta Philip P. Lindsley Marguerite C. Lorenz Antonio Maldonado Robert E. McGinnis Raymond J. Navarro Peggy S. Onstott Anthony J. Passante Jr. Anne Perry Kristi E. Pfister Justin Reckers Joseph Angelo Sammartino Stella Shvil Stuart H. Swett
PHOTO GALLERY GOLF TOURNAMENT Photos by Barry Carlton Colleagues and friends enjoyed time together on the green at the SDCBA’s Annual Golf Tournament on March 13 at the Rancho Bernardo Inn Golf Course. Thank you to sponsors Voit, Westlaw, Torrey Pines Bank, Robert Half, Peterson Reporting, Thorsnes, Inventus, Manuel R. Valdez & Manny J. Valdez, and Aptus.
Rob Vila, Michael Alfred
Douglas Cleary, Ashley Leightner
Robert Shabkie, Miranda Bordson
Gina Stein
Edward Batlle
Andre Robin, Nick Carter
HIGH SCHOOL MOCK TRIAL COMPETITION Photos by Jason de Alba and Steve Silva
Stephanie Beltran, Topenga Gentry
2015 Champions the Bishop's School
Otay Ranch High School Team with Attorney Coaches
Local students participated in the San Diego County High School Mock Trial Competition late February. Volunteer attorneys coached the teams and scored the competition, while judges presided over the trials and other legal professionals and law students helped staff the event.
Stacy Achenbach
KIDS’ OCEAN DAY SDCBA members volunteered at a beach cleanup with schoolchildren on both sides of the U.S./Mexico border during I Love A Clean San Diego Kids’ Ocean Day 2015 on February 26.
L-R: Jaime and Lori Mendez, Victor Salazar March/April 2015 SAN DIEGO LAWYER 45
PHOTO GALLERY SAN DIEGO DEFENSE LAWYERS INSTALLATION DINNER
Brooklynn Hamilton
Photos by Jessica Fraser On January 24, the San Diego Defense Lawyers held their Annual Installation Dinner at the U.S. Grant Hotel.
San Diego Defense Lawyers 2015 Board of Directors
Ken Turek
Hon. David Danielsen
FALSD ANNUAL DINNER Photos by Barry Carlton
L-R: Stephanie Dejesus, Beth Carino, Valerie Garcia Hong, Christina Tantoy
L-R: David Lat, Melissa Deleon, Srinivas Hanamadass, Brian Sun
L-R: Arlene Yang, Hon. David Alvarez, Peter Quon
The Filipino American Lawyers of San Diego (FALSD) hosted their 37th Annual Dinner on January 29 at the Omni Hotel. David Lat
L-R: Eugene Kim, Lloyd Costales, Jerrilyn Malana
CONSUMER ATTORNEYS OF SAN DIEGO DINNER
L-R: Lea-Ann Tratten, Timothy Blood, Thomas Rutledge, Robert Pack
Cecilia Gebhardt, Tonya Sabo
Photos by Lambert Photo On February 12, the Consumer Attorneys of San Diego held their Annual Awards and Installation Dinner at the San Diego Hall of Champions. Bonnie Benitez, Raul Cadena
L-R: William Naumann, Elina Chaplik, Elaine Gower, Mark Atherton 46 SAN DIEGO LAWYER March/April 2015
L-R: Christopher Walton, Scott Waddle, Jeremiah Lowe
BUILD YOUR PRACTICE As an SDCBA member, you have access to discounts on products and services from top companies in the legal profession and beyond. Take your practice to the next level with the exclusive savings offered through our member benefit partners.
www.sdcba.org/benefits PREFERRED PROVIDER
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INSURING LAW FIRMS ONE POLICY AT A TIME
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