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SEP/OCT 2015

EMBRACING DIVERSITY & CLOSING THE GAP

+PLUS 100 Years of Women Serving on the Jury SDCBA Files Amicus Brief Jury Tweets: Dos & Don’ts


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THOMAS PENFIELD

L E A D I N G

T H E

W A Y

Meet Thomas Penfield, a CaseyGerry partner for more than 25 years. From a role in the largest commercial bribery case in U.S. history to settling a recent class action suit against the City of Chula Vista, he has taken on a range of complex litigation, including product liability, civil litigation, personal injury, environmental cases and more. A fierce advocate for justice, he shares his considerable legal talents as an adjunct professor at USD School of Law and is past president of the Bar Association of North San Diego County. 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

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S I N C E

San Diego Office: 110 Laurel Street, San Diego, CA 92101 North County: 120 Birmingham Drive, Suite 120E, Cardiff by the Sea, CA 92007

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CONTENTS

Page

46

Features 7

4 Thoughts About Closing The Diversity Gap In The Legal Profession A recent article provides insight into ways we can increase diversity in the legal profession

Departments 25

Diversity Flourishes Among Firms & Fellows Diversity Fellowship Program participants reflect on their experience with this special program Introduction by Jeremy Evans

By Renwei Chung

35

17

Filed: Amicus Brief The SDCBA provides perspective on an attorney's ethical obligations if they inadvertently receive confidential documents By Ray Huard

21

Two Birds with One Stone Local incubator programs help reduce the justice gap and support new solo practitioners By Danwill Schwender

The Diversity Discussion Continued Revisiting a look at where our legal community lies on the diversity spectrum

37

Professionalism in Practice Local paralegal group leaders share a few thoughts

39

Jury Tweets Does your jury know these social media dos and don'ts? By Renée Galente

6

Why I Belong Meet SDCBA member Flavio Nominati

8

A Message to Newer Lawyers: #SetTheBar Advice on professionalism from a few legal vets By Richard Huver

10

Deans Legal scholarship continues to prove its value By Thomas Guernsey

15

In-House Perspective Q & A with Eden Yaege, General Counsel for Square One Development By Alidad Vakili

33

Bar History: Gender Equality Rewind This year marks a century of women serving on the jury in San Diego By Christopher Todd

45

Call From the Help Desk The San Diego Law Library is looking for a few good volunteers By Cheryl Weeks-Frey

13

Ethics Do you – and your clients – know the potential risks of communicating via mobile text? By Edward McIntyre

45

Distinctions & Passings Celebrating and remembering our colleagues

46

Photo Gallery Events and smiling faces captured in our community

Issue no. 5. San Diego Lawyer™ (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is 619-231-0781. The price of an annual subscription to members of the San Diego County Bar Association ($10) is included in their dues. Annual subscriptions to all others, $50. Single-copy price, $10. Periodicals postage paid at San Diego, CA and additional mailing offices. POSTMASTER: Send address changes to San Diego Lawyer, 401 West A Street, Suite 1100, San Diego, CA 92101. Copyright © 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 September/October 2015


WHY I BELONG

Flavio Nominati

THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION

San Diego District Attorney’s Office Education: California Lutheran University, Thomas Jefferson School of Law Area of practice: Criminal Law

Co-Editors Edward McIntyre Christine Pangan

Editorial Board

Proudest career moment: Receiving a text message on Christmas Eve from a victim in a domestic violence case I successfully prosecuted thanking me for believing him and helping him get out of a 3 year violent relationship. Family: The only child. Birthplace: Northridge, CA Current area of residence: North Park, San Diego If I weren’t an attorney, I’d be an actor, a writer, or a director. The best thing about being an attorney is helping people and being there in their time of need. Last vacation: Palm Springs, CA Favorite Web site: riverplate.com (only the best soccer team in the world)

Stephenie Alexander Hali Anderson Hon. Victor Bianchini (Ret.) Rebecca Blain Elizabeth Blust George Brewster, Jr. Martin Buchanan Brody Burns Judith Copeland James Crosby Jeremy Evans Frantz Farreau Renée Galente Eric Ganci

Hon. William Howatt, Jr. (Ret.) Robert Lynn Steven McDonald Erik Nelson Jocelyn Neudauer Hon. Leo Papas (Ret.) Don Rez Suzanne Schmidt Danwill Schwender David Seto Christopher Todd Alidad Vakili Teresa Warren

Cartoonist George Brewster, Jr.

Photographers Barry Carlton Eric Ganci David Seto

SAN DIEGO COUNTY BAR ASSOCIATION

Executive Director

Hobbies: Watching soccer

Ellen Miller-Sharp

Director of Communications &

Favorite musical group: The Velvet Underground

Outreach Strategy

Favorite food: Asado (Argentine BBQ)

Karen Korr

Why do you belong to the SDCBA? To be able to stay in contact with former and current colleagues throughout the county. How does your SDCBA membership help keep you connected to the legal community? It keeps me updated with the developments of the local legal community. What makes San Diego’s bar so special/unique? For being one of the largest cities in the U.S. the legal community feels like a small family.

Follow Us! Follow San Diego Lawyer on Facebook and Twitter to keep up with the magazine and network with fellow readers. Find us by using the links below.

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To connect with other SDCBA groups on social media, visit www.sdcba.org/socialmedia. 6 SAN DIEGO LAWYER September/October 2015

Graphic Designer Attiba Royster

Publications Editor Jenna Little

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.

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NUGENT SD LAWYER AD 1/2 PAGE VERTICAL (NO BLEEDS)

4 Thoughts About Closing The Diversity Gap In The Legal Profession By Renwei Chung “So every morning I’m up because I can’t let them down / Always down for the cause, never down for the count.” — Big Sean

L

ast month, the Boston Consulting Group (BCG) published an article titled “Closing the Diversity Gap in Silicon Valley” that addressed the diversity crisis in the technology field. Just like Silicon Valley, the legal profession is also facing a diversity crisis. BCG’s diversity report for Silicon Valley provided four key takeaways that are just as relevant to our profession:

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Arbitration * Mediation Trials By Reference And Related Proceedings

Last month, Facebook COO Sheryl Sandberg penned a letter discussing the importance of diversity and inclusion. Along with this letter, Facebook provided a video module that discussed the business case for diversity and inclusion. According to CEB, diverse and inclusive workforces demonstrate 12% more discretionary effort, 19% greater intent to stay, 57% more collaboration among teams, and 42% greater team commitment.

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According to BCG: CEOs and senior leaders need to promote diversity in public, in the boardroom, in their day-to-day interactions with their direct reports, and with employees. They need to set an overall tone of inclusion and respect for racial and gender differences. Without CEO support, the pressures of everyday business and the forces of inertia will overpower diversity initiatives. It should not be any surprise that, at diverse companies, CEOs are more involved in diversity efforts—and hold their senior team accountable for diversity results—than at homogeneous companies. Continue reading on page 31


Words of Wisdom for Newer Attorneys

Richard A. Huver, 2015 SDCBA President

For those who are new to the practice of law: I invite you to listen to the advice you see on these pages. These insights come from seasoned veterans in our legal community – their careers prove that professionalism is a key to success. Those who have been in practice a little longer should also embrace these wise words as we continue to strive to uphold a positive reputation and

character, and as we make civility part of our daily practice, both in and out of the office and in and out of the courtroom. Do you have #ProInPractice advice for emerging attorneys? Please share with us how professionalism has helped shape your career on social media by using the hashtags #ProInPractice and #SetTheBar.

Marilyn Moriarty Lewis Brisbois Bisgaard & Smith LLP When we go into a lawsuit, we are trained as warriors. The importance of being professional in our dealings with opposing counsel and witnesses should not, however, be forgotten. Remember that we represent the entire profession as we practice law. I have always prided myself on being able to see the greater “good” in the ultimate outcome and know that my word is my bond. Sometimes, in times of conflict, this is easy to forget. I have a rule – wait a minimum of 24 hours before sending that letter or email. Remember, your opposing counsel may be even more invested than you are in the client and may have let his or her feelings influence his or her action. When the dust is cleared, you will be better off if you have exercised that modicum of control and reason. You are not letting your client down by exercising discretion. Indeed you may have well preserved a better position for your client if the dispute comes in front of a judge.

Charles Dick Attorney at Law Several years ago, Justice Howard Wiener gave a group of my colleagues some sage advice: “Never accept a mining claim as a fee, and always tell the truth.” His wisdom confirmed my belief that being a truth teller was part of being a professional, although life has taught me that is not always as easy as it should be. Competition for good work is intense; clients are demanding; partners may be problematic; opponents can be difficult. The temptation to hedge often seems irresistible. But in the end, striving to be known as an honest person is worth the candle. Having a reputation for honesty can make all the difference in the world. A second piece of advice is equally important: “You can never have too many friends.” Every adversary you encounter is a potential friend, so why look for ways to torment or offend an opponent? Some of my most interesting engagements were referred by people from my distant past who somehow thought of me when they had a client in need. I often had no idea what I might have done to deserve the referral, but I am confident that polite, considerate behavior had something to do with it. So, treat the people you meet along the way with a measure of respect, even when they may not have earned it. When you lose, genuinely congratulate the other side. You will never know when being decent will come back to pay dividends.

Claudette Wilson Wilson Turner Kosmo LLP Unless you always act with integrity, you don’t have integrity. While we all want to make a living, you also need to live with yourself and for most of us, that is easier to do if you know you have acted with honesty, compassion and common courtesy to your fellow human beings. As to the making a living part – you will make a better living as well. You will be more successful in resolving sticky situations if everyone involved knows they can trust you, and certainly clients will be more loyal if they respect you and know you will put their interests first. So always act with integrity, sleep well and make a good living with your excellent reputation! 8 SAN DIEGO LAWYER September/October 2015


Doc Anthony Anderson III Law Offices of Doc Anthony Anderson III I believe the most important lesson I have learned from my brief legal practice is to have complete professional mutual respect for your fellow attorneys and others you might come into contact with as part of your work in the judicial system. This should always be foremost in your mind whether it starts with the first interview of a potential client, the filing of a civil complaint, answering a complaint, discovery, depositions, etc. Such mutual professional respect embodes well for all concern, most especially your clients. I recall once early in my career, the opposing counsel invited me to lunch to discuss a discovery issue. During that discussion, she made known medical records that pertained to my client where my client had admitted he had previously been seriously injured in another incident in the same manner that was the subject of our current litigation. My client had failed to mention that fact to me (surprise) and when confronted he confessed and stated that he believed that particular fact was not important even though it was a professional negligence case. Of course the case settled quickly thereafter understanding that opposing counsel could have prolonged the case for maybe additional fees and/or a surprise for summary judgment or trial. However, we saved valuable resources, most especially my money. Professional mutual respect was the answer and it should be that way at all times as we go through our daily legal lives.

Hon. William Enright United States District Court Thinking back to the valuable lessons I learned over the years, my best advice for young attorneys is to guard your reputation. You only get one, and you can’t get another. My own mentor, Joseph A. Ball of Long Beach, was the beacon light of my career. Joe Ball was fiercely independent – never the mere employee of another; he was committed to the highest level of ethical standards – not what can be done but what should be done; and he had a tenacity and resourcefulness that would not yield. I can still hear his words of advice: “I value my reputation as a lawyer more than you as a client.” “I can get another client but I can’t get another reputation.” “A reputation is priceless; it cannot be bought, but it can be sold real cheaply.” My esteemed colleague and the Dean of our Federal Court, Judge Howard Turrentine had similar words of wisdom. If you are the kind of lawyer with “chalk on your shoes,” if you develop a reputation that your word can’t be trusted – no matter what your technical skills, your legal expertise or financial success – you will damage every client you represent, and it will cost you throughout your professional life in ways you will never see or understand.

Virginia Nelson Law Offices of Virginia C. Nelson Many things have changed for new lawyers; the importance of professionalism has not. The significance of professionalism hasn’t changed regardless of field, experience level or situation. As a practical matter, it’s much easier to accomplish your objectives if you treat everyone and his or her views as important and deserving respect. This can be facilitated if you find common grounds of interest separate from the case you’re working on. It’s critically important to take the high road, and not let the process get in the way of your goals. We are fortunate to be a part of a legal community where we know each other and work with each repeatedly. Focus on collegiality and collaboration.  This, in combination with an appreciation of both the person you are dealing with as well as the issues of the day, is the best method to embed professionalism in your life.

September/October 2015 SAN DIEGO LAWYER 9


DEANS

BY THOMAS GUERNSE Y

My Own Big Bang Theory Legal scholarship continues to prove its value

S

ometimes I think Howard Wolowitz is being channeled by critics of current legal scholarship. For those of you who do not know, Howard is a character in the television show The Big Bang Theory. In the show, Sheldon Cooper often ridicules Leonard Hofstadter because Leonard’s work is in experimental physics, while Sheldon is a theoretical physicist. They both in turn ridicule their mutual friend, Howard, because Howard is “just” an MIT trained engineer. In truth, Howard is apparently the only one who has actually done something non-academic; he went to the International Space Station. I think that Howard (albeit metaphorically) is exacting his revenge by allowing himself to be used by current critics of legal scholarship. Part of the current anti-law school narrative is that faculty scholarship is too expensive (faculty should teach more, write less) and too theoretical (too esoteric) to be relevant. In the legal academy, the metaphor would be that Sheldon is the norm. It is not a new charge thrown at law schools. The critics at best seriously overstate the case. There are 900 law reviews. Over 600 of them are student edited. Can anyone seriously believe that the vast majority of the material published in these journals was written by Sheldon clones? Apparently, some people do think this. A number of years ago I participated in a national conclave on education of lawyers. A very prominent United States Circuit

venire. The first article written by a Thomas Jefferson faculty member I found on that same shelf is Economic Windfalls and Child Support: How Should Gifts, Inheritances, and Prizes Be Treated? These are first rate pieces of scholarship that few would say are esoteric or not helpful to judges and practitioners.

Thomas Guernsey Court of Appeals judge claimed that he had not read a law review article in years. Beyond the esoteric subject matter, evidence of why he distained the scholarship he believed was being written was reinforced when he stated that he thought young faculty did not have enough practice experience and hence, among other evils, they did not feel tied to the profession and therefore did not need to write for it. He said he had his clerks survey the practice experience of entry level faculty at the “top 11 law schools” and he found his conclusion supported. (I suspect that to him the rest of the 193 law schools were as irrelevant as our scholarship). Pick up a copy of the Thomas Jefferson Law Review and read the titles. I randomly picked the Spring 2014 volume off my shelf. The lead article is about how to conduct ethical Internet investigations of the

Put aside that most legal scholarship is of the type represented by these articles. Even scholarship that is often cited as esoteric has profound impact on policy makers and practitioners. Critics often cite as examples of where law faculty have gone astray to include topics such as feminist jurisprudence, critical race theory, and LGBT studies. Yet, for example, Federal Rules of Evidence 412-415 concerning sexual activity grew out of feminist jurisprudence. The municipal court judge in Ferguson Missouri was applying critical race theory when he dismissed 10,000 arrest warrants, and, of course, LGBT theory was recently applied by the United States Supreme Court in Obergefell v. Hodges. There are innumerable other examples. Faculty scholarship plays an important, practical role. But legal scholarship can, and should, play a role comparable to basic research in the sciences. We as a profession need scholarship written by both Leonard and Sheldon, not just by Howard. Thomas Guernsey is President and Dean of Thomas Jefferson School of Law.

Even scholarship that is often cited as esoteric has profound impact on policy makers and practitioners.

10 SAN DIEGO LAWYER September/October 2015


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BY EDWARD McINT YRE

ETHICS

Messenger Beware Do you – and your clients – know the potential risks of communicating via mobile text?

“G

et my text, Uncle? Just now?” The rest of Duncan’s body followed his head around Macbeth’s doorjamb. Macbeth looked up from editing a brief. “Did I get what?” “My text. To your mobile. Sent it from my office.” CARTOON BY GEORGE BREWSTER, JR. “Why didn’t you phone? American format.” Or knock on my door to see if I were busy? Sarah stifled a laugh. Send an email, even?” “Technology’s great. Let’s us serve clients. “I’m interrupting?” But it’s a two-edged sword that can cut “Not now.” deep.” “Good. I’m figuring out how we can “How so, Uncle?” use text messaging – all the cool social “Set up a meeting. Fine.” Macbeth media, really – to help our practice. Clients. grabbed his cell; his thumbs flew. “dwntn Advertising. You know, all of it.” jny brwn @ 7” hit Duncan and Sarah’s “Perhaps we should have Sarah join us. phones in milliseconds. Macbeth said: “I’ll She’s more ‘cool’ than we.” buy.” As Sarah walked in, Duncan was clumsily Duncan looked up. “Is that, ‘Downtown thumbing his cell phone. Johnny Brown’s, at 7, tonight’?” “Thanks for joining us, Sarah. Duncan Sarah smiled. seems to have discovered text messaging Macbeth continued. “Confidentiality’s as an adjunct to our practice. He can critical.” explain.” “I’d never text confidential information.” “My clients all text. Important to show “I’m relieved. But your clients? How can we’re current. Play in their world. Then you make sure your clients know what not there’s Twitter. What a way to get the word to text?” out. What we’re doing. Success in court. ”Like what?” Deals done –” Macbeth typed another message: “hlp! Macbeth interrupted. “You’re talking kld wif runin fst” He gestured out the about your mobile? Not our office window. “That’d be bouncing unsecure computers?” from tower to tower. Then stored on your “Of course. Communication 24/7 just –” phone. Likely forever.” “Our computers use encrypted email for “Ouch.” sensitive client communication. Even our “If we habituate clients to sending laptops. Your mobile?” unsecure text messages, it can happen.” “No, that’d be too cumbersome.” Sarah added. “Remember that Android “We’ve firewalls and security systems software flaw. A hacker could access your built into our email and Internet programs. device with just your phone number.” With redundancy. Your mobile?” “Don’t clients have to accept “No, but—“ responsibility –“ “No one’s broken into our office, thank Macbeth stepped in. “I agree. But only to goodness. You’ve misplaced your mobile a point.” how often?” “How so?” “Only four times. But it's password “We have the duty to preserve protected—” client confidences. Also, a duty to act “With your birthdate, as I recall. In the

competently. Current ethics guidance says competence means understanding technology so we preserve confidential information. And we have a duty to communicate with our clients.” “What’s this got to do with texting?” “When it comes to clients, two things. Don’t text confidential information. At least not without the client’s explicit permission. After clear warning. Make it the rare exception.” Duncan nodded. “Okay. Got that.” “Reciprocally, instill in clients never to text confidential information to you. Have them come see you. Use the phone. Email our secure server. ” “Protect them,” asked Sarah, “from themselves?” “Precisely. We do in most everything else. What’s different about how they use technology?” “You’re saying – if a client’s exposing confidential information, our duty to preserve confidences means warning the client about using unsecure technology?” “At the least.” “I hadn’t looked at it that way.” “Then let’s thank Duncan for bringing it up.” Macbeth picked up the brief he’d been editing. “Around the office, let’s just visit. Or pick up the phone. No need to text.” “Uncle, I got that point.”

Edward McIntyre (edwardmcintyre1789@gmail.com) is an attorney at law and Co-Editor of San Diego Lawyer. No portion of this article is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee. September/October 2015 SAN DIEGO LAWYER 13


BY ALIDAD VAKILI

IN-HOUSE PERSPECTIVE

Q & A: Eden Yaege General Counsel for Square One Development

F

or this issue, I spoke with Eden Yaege, General Counsel for Square One Development. Eden’s affable and winsome character shines through when you speak with her. A graduate of California Western School of Law (CWSL), Eden started with Square One Development as a legal intern and progressed to her current position as general counsel, where she manages the legal affairs for the organization. By nature, Eden is a consummate team player and views one of her roles as making sure she helps her team accomplish their goals. How did you find your way to your current position? I started as an intern. CWSL placed me at the company. After my internship ended, I became the transaction manager and after I passed the bar, General Counsel. What is something that drives you? I have two main drivers. The first is the feeling of satisfaction in a job well done. I relish seeing our team accomplish objectives that seemed very challenging at the start. The second driver is eliminating unnecessary, inefficient, ineffective business practices, which includes time

the process, including time frames and costs. In addition, outside counsel should view each interaction as a relationship builder, not as a mechanism for billing another 15 minutes. How do you define outside counsel’s role? Outside counsel is there to get us back on track to conducting our core business in the most efficient, effective manner. spent in litigation. Litigation should always be a last resort. What would you say is one of the biggest challenges you deal with as in-house counsel? Balancing conflicts between business goals and legal parameters. What do you believe is important for outside counsel to know about your job to better enable them to serve your needs? I am not a litigator. I have been fortunate to find an in-house position without having litigation experience. While I understand our business better than a litigator, a litigator will need to take time to explain

Life Notes Number of years in practice: 6 Undergrad: Humboldt State University (1993) Law school: California Western School of Law (2007) Favorite quote: “I’m a firm believer in luck, and I’ve found that the harder I work, the luckier I get.” Sometimes attributed to Thomas Jefferson. Favorite book: Grapes of Wrath by John Steinbeck Hobbies: Crochet, jewelry making, reading.

What practice areas do you typically find yourself engaged in on a regular basis? Commercial real estate and business. What advice do you have for newer lawyers who are interested in working in-house? This is always a tough question for me. When I started as an intern at my current position I didn’t really have an idea of what in-house counsel was. I think the advice is similar to any other business, get your foot in the door however you can and try to make yourself invaluable to your employer by giving them the best service possible. Alidad Vakili (alidad.vakili@klgates.com) is an attorney with K&L Gates LLP.

Quick Facts Company: Square One Development was founded in 1983 as a real estate development company that over the course of its thirty plus year history has developed and managed over 700 apartment units, 300 single family and attached homes, 400 acres of land and over 1,300,000 square feet of commercial and industrial projects. The company currently manages over $180 million worth of real estate projects including hotels, motels, and commercial and industrial properties. Employees: 7 Legal Department: 1 Awards and Accolades: The most recent outstanding achievement of the company was making it through the recession. While many real estate companies did not survive, our team’s dedication, creativity and motivation enabled it not only to survive, but to be in a prime position as the market stabilizes.

September/October 2015 SAN DIEGO LAWYER 15


The SDCBA recently filed an Amicus Brief in Ardon v. City of Los Angeles. Read the press release at www.sdcba.org/amicusbriefrelease. The full Amicus Brief is available to read at www.sdcba.org/amicusbrief2015.

A

court ruling affecting the ability of lawyers to keep confidential documents from inadvertently being made public and used in court could have such profound repercussions that the San Diego County Bar Association has stepped into the fray. In what appears to be an unprecedented step, the Bar Association has filed an amicus brief with the California Supreme Court supporting the City of Los Angeles in a case in which a lower court said a lawyer suing the city on behalf of a taxpayer could use privileged documents which a clerk mistakenly released in response to a Public Records Act request. “That really strikes at the heart of our (legal) system,” said Jon Williams, Bar Association immediate past president. “The issue is bigger than these parties. The issue is of statewide significance.” Williams said the Bar Association decided to file the amicus brief in part because the association’s Legal Ethics Committee had already been researching and discussing similar issues. “It just seemed like it was an opportunity for us to offer some guidance to the high court on an important issue,” Williams said. “This is an area where we have developed a great amount of expertise from our Legal Ethics Committee.” Neither Williams nor other Bar Association members can remember another instance in which the association has filed an amicus brief on a case before the Supreme Court. Nevertheless, Williams said “I don’t see this as part of a larger tend.” “What it demonstrates is that we are very thoughtful about getting involved in these issues,” Williams said. “We have certain expertise and when issues intersect with that expertise, we’ll get involved.” In this instance, the court ruling “seemed like an aberrant result to us,” he said. “This one strikes at the heart of the practice of law, if you think about it, and what lawyers do on a daily basis,” Williams said. “It’s our position they just got it wrong.”

FILED: AMICUS BRIEF The SDCBA provides perspective on an attorneys's ethical obligation when receiving confidential documents By Ray Huard

A Los Angeles Superior Court judge in August granted tentative approval to the settlement of the underlying class action suit involving a city utility tax. The city agreed to pay up to $92.5 million in refunds to Los Angeles residents who paid the tax between October 2005 and March 2008. The 2nd District Court of Appeal, Division Six, previously upheld the lower court ruling that documents mistakenly disclosed during through the Public Records Act request did not have to be returned and could be used in trial.

“This [case] strikes at the heart of the practice of law and what lawyers do on a daily basis. It’s our position they just got it wrong.” – Jon Williams The trial court also ruled that the lawyer who handled the lawsuit and inadvertently received the privileged documents did not have to be disqualified for not returning them. The state Supreme Court determined that the privilege issue was so important that it took up the case despite the tentative settlement between the city and the man who filed the class action lawsuit, Estuardo Ardon. “That is part of the review process of the Supreme Court,” Williams said. “They can take up a case even if it’s settled as to the parties because it impacts the law throughout the state and it impacts other litigants and other folks.” The Supreme Court, on its website, said the Ardon case raises two issues. “Does inadvertent disclosure of attorney

work product and privileged documents in response to a Public Records Act request waive those privileges and protections?” “Should an attorney who received the documents be disqualified because she examined them and refused to return them?” The Bar Association brief doesn’t deal with the question of whether a lawyer should be disqualified for inadvertently receiving and not returning privileged documents but focuses on what lawyers should do when they receive such information. “Essentially, the debate involved an attorney’s obligations when confronted with a situation where they have come to possess or have access to publicly available information that was clearly intended to be confidential information,” said Patrick Kearns, chairman of the Legal Ethics Committee. “These are open questions for practicing attorneys that need guidance and need bright line rules on how to handle these things,” Kearns said. Edward McIntyre, who drafted the amicus brief with Leah Strickland, said that the Supreme Court decision to review the Ardon case coincided with work being done by the Bar Association’s Legal Ethics Committee concerning attorney-client privilege and work product privilege. “The Legal Ethics Committee of the Bar Association has been looking at the issue of the ethical duties of a lawyer who received confidential information from the other side in a variety of circumstances,” McIntyre said. “One of the functions of the Ethics Committee is to address issues, and, if worthwhile, to craft opinions if it would be useful to practitioners.” That was the case in this instance. “We were working on an opinion for better than a year, starting in 2013, all through 2014,” McIntyre said. “As soon as I saw what the issues were in the Ardon case, it was pretty clear that the court, in one way or another, was going to address some of the issues that were in the opinion.” At that point, it seems superfluous for the September/October 2015 SAN DIEGO LAWYER 17


FILED: AMICUS BRIEF Ethics Committee to issue an opinion locally when the Supreme Court would settle the matter statewide. Still, committee members thought their research might be useful to the Supreme Court, so they switched gears and began preparing the amicus brief, McIntyre said. “It really is an important ethics issue for which there is precious little guidance,” McIntyre said. “Clients need the assurance that the work the lawyer is doing for them is confidential and is not going to be exploited by lawyers on the other side. If clients don’t have that confidence, they’re not going to share the kind of information a lawyer needs in order to give the kind of advice the client is entitled to.” If left to stand, the Ardon decision would allow lawyers to circumvent privilege by getting documents through Public Records Act requests, McIntyre said. “If you get it through the Public Records Act, you (would) have no obligation,” McIntyre said. “I can just go ahead and use the documents as I see fit, which is kind of a dual standard.” The general rule would be that lawyers couldn’t use privileged documents they received inadvertently, with the glaring exception of those obtained through the Public

Records Act. “It’s almost situational standards,” McIntyre said. McIntyre and Kearns said the issues raised in the amicus brief are especially timely as lawyers rely more and more on technology. “This is a continuation of sort of a greater issue facing attorneys today, particularly in the age of electronic discovery, and the sort of ubiquitous use of technology in law today,” Kearns said. “We are in sort of a period of transition. We are witnessing and we are part of a change in the way we practice law from a more paper-based system to a digital system, and that presents unique challenges.” With the number of documents lawyers have access to rising exponentially through technology, it’s inevitable that privileged material will be inadvertently released, Kearns said. “I think we’re going to see different and continuing circumstances where attorneys are going to obtain information they probably shouldn’t have obtained, even though they didn’t do anything wrong in doing it.” Kearns said. Eric Deitz, who worked on the amicus brief, said the question of how to handle that

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information was of critical concern to the Legal Ethics Committee and the entire Bar Association. “Any decision that creates the potential to jeopardize attorney-client privilege, which under California law and statute is sacrosanct, should be of concern to all attorneys,” Deitz said. “The Ardon decision has the potential to erode that privilege.” Kearns said the Legal Ethics Committee was “uniquely suited” to play a role in the matter because its members routinely monitor and debate ethical issues. “We address issues that come up in our own practices and we monitor issues that come up in case law around the state,” Kearns said. “I’m very pleased and very proud that the ethics committee and the San Diego County Bar Association came together and weighed in on this important issue.” Ethical rules on how lawyers should handle confidential documents they receive in error have been evolving for more than a decade. The trend has been toward keeping the documents confidential unless lawyers for both sides agree otherwise or a court rules that they need not remain confidential. The decision in the Ardon case went against


the trend, the Bar Association wrote in its brief. “No California lawyer should be permitted ethically to use privileged or confidential documents that neither the sender nor recipient intended that lawyer to see until the lawyer resolves the privilege issue, either informally or through the court,” the association argued in the brief. The germination of that standard goes back to a 1993 case, Aerojet General Corp v. Transport Indemnity Insurance, according to the brief. In that instance, a lawyer for Aerojet received a package of documents from his client, including a privileged document which revealed the strategy of the defense and identified a witness not previously disclosed. The Court of Appeal ruled that the lawyer was free to use the document and even had a duty to his client to use it. That changed as a result of a 1999 case, State Compensation Insurance Fund v. WPS, Inc., in which privileged documents were mistakenly included in a box delivered to opposing counsel. The court in that case ruled that the attorney-client privilege still applied, that it wasn’t waived when the privileged documents were mixed in with other documents in a box, according to the brief.

Not only could a lawyer not use the privileged documents, but he shouldn’t even read them once he realizes they’re privileged, and he should notify the opposing side that he has them, the Court of Appeal ruled. That standard was applied by the state Supreme Court in a 2007 case, Rico v. Mitsubishi Motors Corp. In that instance, a lawyer’s notes disappeared from his box of trial materials that was left on a table during a deposition. A lawyer for the other side obtained the notes. The lawyer said a court reporter had given the notes to him by mistake. The Supreme Court ruled that the disclosure was inadvertent but that its use violated the “bright line” established previously protecting privilege. The Supreme Court upheld a lower court decision to disqualify the lawyer who received the notes and his firm. The Bar Association, in its brief, also cited a 2011 case, Clark v. Superior Court, which it said continued the evolution of the ethical standard by reiterating “that transmission of information between an attorney and client is presumed privileged, regardless of content.” Additionally, the Clark case expanded the definition of inadvertent to include any document that a lawyer should reasonably

know he wasn’t meant to see. The issue involved a worker who took documents from his employer, quit his job then gave the documents to his lawyers to use in a lawsuit. The lawyers refused to return or destroy the documents, some of which were marked as privileged. The Ardon case is different because it involves a Public Records Act request but the ethical rules as they’ve evolved in the other cases should apply, according to the San Diego Bar Association. In a similar case cited in the brief, the First District Court of Appeal in July ruled that the attorney-client privilege wasn’t waived when the Newark Unified School District mistakenly included privileged documents in information it released in response to a Public Records Act request. “The attorney-client communications of an entity subject to the Public Records Act, and its lawyers work product, are no less worthy of protection that those of any client or lawyer,” the San Diego Bar Association wrote. Read the full amicus brief at www.sdcba.org/amicusbrief2015.

Preeminent. Practical. Focused. Kathryn Karcher, for your client’s appeal.

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Two Birds with One Stone Local incubator programs help reduce the justice gap and support new solo practitioners By Danwill Schwender

T

he legal industry in the United States has two well-documented problems: (1) Millions of Americans cannot afford much needed legal services, i.e., the “Justice Gap,” and (2) large numbers of law school graduates remain unemployed, underemployed, or are unable to take low paying public interest jobs due to severe law school debt. Law schools are responding to these changing professional and community needs with incubator programs. Incubators are common, and often successful, at providing start-up companies with the business and financial management, marketing, networking, and creativity needed to launch a new enterprise quickly (think Silicon Valley). But, such programs are relatively new to the legal arena. Today’s legal incubator programs generally provide shared office space, technology, and other resources at a free or discounted rate to its participants. The schools either allocate or secure outside funding to cover start-up costs for furnishing and equipping the incubator, such as copier/ fax/scanner, Internet service, legal research resources, office space, etc. The participants also obtain mentoring on the basics of business and marketing a law firm. In exchange, the attorneys agree to provide free and discounted legal services to the community. Many programs also require their participants to lecture at legal clinics, senior centers, non-profits, and religious and community organizations. The roots of the recent explosion in law school incubator programs traces back to the City University of New York School of Law’s Community Legal Resource Network. The program sought to address the critical need for low- and moderate-income clients’ access to justice in New York City. The school offered training and support

to lawyers who wanted to start their own practices to help the underserved and created a communication network for those involved to assist each other. In 2007, Professor Fred Rooney molded this program into the first incubator for attorneys by placing the participants under one roof in a collaborative environment where they could provide each other educational, creative, moral, and practical support, while also developing referral business. Most legal incubator programs nationwide have followed this example and have developed a support system for alumni to start solo and small law firms or participate in non-profit organizations that seek to reduce the Justice Gap. While in the incubator program, these lawyers provide affordable and pro bono legal services to underserved communities and the programs hope they will continue to do so throughout their career. The idea is really quite simple, communities need affordable lawyers and recent graduates need work and mentoring. The concept took on new meaning when the 2008 economic crisis hit, causing an ever-growing number of unemployed law school graduates. This was a turning point for the incubator idea, as it grew past just creating successful law practices in underserved communities to also helping recent graduates become more marketable

lawyers. As most attorneys know, law school focused on legal theory and analytical skills, but not necessarily on preparation for the real world of legal practice.

[Incubators provide] the practical knowledge and training new attorneys require to serve their clients well and to operate a business. In this sense, incubators fill the holes in the traditional law school education. Before the economic collapse, most graduates learned the practical aspects of being a lawyer on the job, during their first years as an associate attorney. Modern times, however, have seen an incredibly competitive legal market with more and more new lawyers finding alternative careers or hanging their own shingle. Incubators assist in the latter by providing the practical knowledge and training new attorneys require to serve their clients well and to operate a business. In this sense, incubators fill the holes in the traditional law school education. Perhaps, these programs could

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form the building block for the muchdebated apprenticeship approach to legal education or force law schools to design and implement more practical approaches to teaching the practice of law. Due in large part to the success of CUNY’s program, law schools across the country have been establishing their own incubator programs. San Diego is no exception. California Western School of Law started the Access to Law Initiative (ALI) in 2012, which was directed by Professor Bob Seibel (also a faculty member at CUNY associated with its incubator program), but has recently hired Anne-Marie Rábago as the new director. Over the years, the Access to Law Initiative has grown from eight to 18 attorneys and now provides affordable and pro bono legal services in a wide range of legal areas, including bankruptcy, business transactions, civil litigation, criminal defense, elder law, veterans benefits, employment and labor law, estate planning, immigration, and family law. The majority of clients come seeking litigation assistance (probably because people know they need a lawyer at this point). The lawyers share office space in

22 SAN DIEGO LAWYER September/October 2015

two locations in downtown San Diego. The attorneys set their own billing rates and make their own client determinations. The program targets an 18 month residency, but the timing is flexible. In addition, each attorney agrees to provide 100 hours of pro bono, low bono, and public service work. The lawyers also work with Cal. Western’s five Community Law Projects, which have students and lawyers volunteer to provide free legal information in a variety of practice areas to low income and indigent communities throughout San Diego County. By all accounts, the program is a success. Since its inception, the program has had twenty-four “graduates,” of which seventeen remain in solo or small firm offices and five are in non-profit or academic settings. Thomas Jefferson School of Law collaborated with Prof. Rooney in developing its incubator program, The Center for Solo Practitioners, which also began in 2012. The program started with nine participants and now accepts between six and 10 applicants per year with a 12 to 18 month service target. Again, the goal is to serve pro bono and low to medium income clients in the community and the range of legal areas of service varies

greatly as each attorney runs his or her own firm and each makes their own client decisions. Nonetheless, the program focuses on issues of family law, estates and trusts, immigration law, real property, landlordtenant, personal injury, consumer law, small business advising, and criminal defense. The program requires the participants to obtain their own malpractice insurance and to accept only those cases that fall within the insurance limits. The Center for Solo Practitioners provides participants office space in the National Family Justice Center Alliance suite in downtown San Diego. The Family Justice Centers were founded to serve victims of domestic violence. Thus, as part of their residency, each of the lawyers in The Center for Solo Practitioners also commits to a minimum of 50 pro bono hours to help victims of domestic violence obtain restraining orders and other needed legal services. University of San Diego Law School is currently assessing its options for a dedicated incubator program. In 2007, however, it established a Law Clerk program for recent graduates and new attorneys that meets many of the same


Want to know more? objectives as an incubator program. These positions are paid, part-time employees for the school’s ten legal clinics and help the participants develop new skills and confidence as they move into full-time legal positions or open their own practices. The school’s clinics provide free legal services to San Diego residents in a variety of areas, including appellate law, child advocacy, civil litigation, criminal defense, education and disability law, tax law, immigration, and veteran assistance. The Law Clerks work the caseloads under seasoned attorneys who also provide additional training in the specific areas of law. The program accepts around six to seven law clerks each year, and each year the clinics close between 500 and 700 cases. Since its inception, the Law Clerk program has hired 165 USD law school graduates. As with any new business, these programs and their participants face hurdles. According to Prof. Seibel, the most difficult aspect of launching the program was finding affordable office space. Fortunately, the landlord of the America One plaza liked the program idea and offered to assist in providing a location. It should come as

no surprise that Joshua Bruser and Jylan Megahed, participants of Cal. Western’s ALI program, both stated the toughest obstacle for them is maintaining a consistent growth in clientele. However, Bruser, who has been in the program for about a year-and-a-half growing his estate planning business, stated, “It has been pretty exciting. Over the last one to two months, business has exploded and my work with my colleagues in this program has been the basis of that growth.” Megahed agreed and said her family law practice has spiked recently. She also quickly noted that the program also allows her to assist on cases with other participants in areas of law that she would like to gain more interest. In sum, San Diego’s law schools are doing a fabulous job for their students and their communities. Many new attorneys in San Diego want to do social good, but either lack the practical skills, do not know how to run a business, or have a reasonable fear of going solo right out of school. The programs act to reduce these obstacles. As a result, they benefit the lawyers, the law schools, and the surrounding community.

To learn more about local incubator programs and legal clinics, see the following links and contacts below.

California Western School of Law: Access to Law Initiative

www.cwsl.edu/clinics-and-programs/access-tolaw-initiative Director: Anne-Marie Rábago, (619) 752-4443

Thomas Jefferson School of Law: Center for Solo Practitioners

www.tjsl.edu/tjsl-alumni/incubator-program Director: Lilys McCoy, (619) 961-4353

University of San Diego Law School: Legal Clinics sites.sandiego.edu/legal_clinics/

Director: Linda Morton, (619) 260-7470

ABA’s Incubator/Residency Program Profiles

www.americanbar.org/groups/delivery_legal_ services/initiatives_awards/program_main/ program_profiles.html

Danwill Schwender (dds@foldenauerlaw.com) is an attorney with Foldenauer Law Group, APLC.

CRAIGHIGGS.COM September/October 2015 SAN DIEGO LAWYER 23


HAGENS BERMAN OPENS OFFICE IN SAN DIEGO (206) 623-7292

hbsslaw.com


Hagens Berman Sobol Shapiro LLP, a national plaintiffs’ classaction law firm, is opening a new office in San Diego, marking the heavyweight’s tenth office as it continues to expand its fight for consumers, whistleblowers, investors and others. The firm is spearheaded by managing partner, Steve Berman, a tenacious, award-winning attorney who has championed record-breaking victories for plaintiffs, including the largest settlement in world history against Big Tobacco, the largest antitrust settlement, the largest ERISA settlement and many of the largest securities settlements in U.S. history. Hagens Berman’s new San Diego home will bolster its longstanding consumer, securities and employment practice areas, while fostering a thriving appellate practice with the addition of Kevin Green, a seasoned appellate attorney with a substantial track record of reversals leading to major settlements.

The firm prides itself in pioneering innovative applications of the law in the face of some of the largest corporations in the world, and was founded in 1993 with one purpose – to help victims with claims of fraud and negligence that adversely impact a broad group of people. We believe excellence stems from a commitment to try each case, vigorously represent the best interests of our clients, and obtain the maximum recovery. Hagens Berman’s new office marks the firm’s third in California – a state to which we’re no stranger. Hagens Berman has secured some of its biggest victories in the Golden State, and we’re only getting started.

STATE OF WASHINGTON, ET AL. V. PHILIP MORRIS, ET AL.

Hagens Berman represented 13 states in the largest recovery in litigation history – $206B. NOTABLE SETTLEMENTS VISA-MASTERCARD ANTITRUST LITIGATION

TOYOTA SUDDEN UNINTENDED ACCELERATION LITIGATION

The firm served as co-lead counsel in what was then the largest antitrust settlement in history – valued at $27 billion.

Steve Berman was sought as co-lead counsel, and the case settled for $1.6 billion in favor of vehicle owners who suffered related economic losses.

MCKESSON DRUG LITIGATION

HYUNDAI/KIA FUEL EFFICIENCY LITIGATION

Hagens Berman was lead counsel in these racketeering cases against McKesson for drug pricing fraud that settled for more than $444 million on the eve of trials.

Hagens Berman filed a class action representing owners of vehicles with overstated fuel economies, resulting in a settlement potentially worth more than $255 million.

ENRON ERISA LITIGATION

JP MORGAN/MADOFF INVESTOR FRAUD LITIGATION

Hagens Berman was co-lead counsel in this ERISA litigation, which recovered in excess of $250 million, the largest ERISA settlement in history.

The court approved a $218 million settlement on behalf of Bernard L. Madoff investors in a suit filed against JPMorgan Chase Bank, N.A. and its parents, subsidiaries and affiliates.


CURRENT CASE WORK AUTOMOTIVE Hagens Berman currently represents a nationwide consumer class against multiple automakers for deadly keyless fob ignition systems that lead to carbon monoxide poisoning. The firm is also co-lead counsel in the ongoing ignition switch defect litigation against General Motors, representing vehicle owners who have suffered economic loss in the aftermath of GM’s bungled recalls of millions of vehicles.

SPORTS LITIGATION The firm represents NCAA studentathletes in key class-action cases and is currently finalizing a settlement that will bring a $70 million medical monitoring fund to players who have sustained head injuries, including other systemic changes to the NCAA’s concussion policy. Hagens Berman also represents minor league and MLB season ticketholders against the MLB’s commissioner in a fight to bring protective netting to ballparks nationwide to prevent foul ball and bat injuries.

CONSUMER RIGHTS Hagens Berman is involved in a number of high-profile consumer rights cases, including a suit against four major retailers for selling fraudulent supplements. The firm also recently secured a win for e-book purchasers in an antitrust class action against Apple and five top publishing companies, and is looking forward to finalizing the settlement with Apple that would bring a $560 million settlement – twice the damages suffered by the class.

The Plaintiffs’ Hot List: The Year’s Hottest Firms, 2006, 2007, 2009-2011, 2012, 2013 and 2015. — The National Law Journal

TESTIMONIALS

— The National Law Journal, naming Steve Berman one of the 100 most influential attorneys in the nation for the third time in a row

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‘‘

[A] clear choice emerges. That choice is the Hagens Berman firm.

— U.S. District Court for the Northern District of California, In re Optical Disk Drive Products Antitrust Litigation (appointing the firm lead counsel)

‘‘

All right, I think I can conclude on the basis with my five years with you all, watching this litigation progress and seeing it wind to a conclusion, that the results are exceptional... You did an exceptionally good job at organizing and managing the case...

‘‘

‘‘

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Landmark consumer cases are business as usual for Steve Berman.

— U.S. District Court for the Northern District of California, In re Dynamic Random Access Memory Antitrust Litigation (Hagens Berman was co-lead counsel and helped achieve the $325 million class settlement)


Hagens Berman is a national leader in class-action litigation driven by a team of legal powerhouses. With a tenancious spirit, we are motivated to make a positive difference in people’s lives.

LOCATIONS:

PRACTICE AREAS:

BOSTON

ANTITRUST LITIGATION

CHICAGO

CIVIL & HUMAN RIGHTS

COLORADO SPRINGS

CONSUMER RIGHTS

LOS ANGELES

GOVERNMENTAL REPRESENTATION

NEW YORK

INTELLECTUAL PROPERTY

PHOENIX

INVESTOR FRAUD

SAN DIEGO

PERSONAL INJURY

SAN FRANCISCO

PHARMACEUTICAL FRAUD

SEATTLE WASHINGTON D.C.

SPORTS LITIGATION WAGE & HOUR LITIGATION WHISTLEBLOWER LITIGATION

(206) 623-7292

hbsslaw.com


DIVERSITY FLOURISHES AMONG FIRMS & FELLOWS Introduction by Jeremy Evans The SDCBA & ACC/SD Diversity Fellowship Program (DFP) places diverse first-year law students with the top law firms and employers in San Diego. This year 17 fellows were paired with 16 different employers. Program selection is based on the total person: character, background, ethnic or cultural background (diversity), while showing

academic and community excellence and involvement. After an intensive application process, fellows are selected and paired with their employers who pay them for the duration of the program. While working at their respective placements, fellows also participate in a host of special workshops and programs.

Here, the 2015 DFP fellows and employers tell us what they gained from participating in DFP and share a few special memories from the program. ANDREWS • LAGASSE • BRANCH & BELL LLP Jonathan Andrews Managing Partner & Founding Member The Diversity Fellowship Program means so much to our firm. We are proud to be a diverse firm and believe it is important to provide learning opportunities to students from all backgrounds. The program has also benefited us tremendously in that we have enjoyed the pleasure of working with dynamic, positive, and inspiring students, including Jessica Yang, now a second year lawyer in our firm, and Briana Givens, our shining fellow from this past summer.

Briana Givens Thomas Jefferson School of Law One of the best experiences a 1L could have after her first year of law school would be to work with an employer through the DFP. There was never a moment where I could not go into an attorney’s office at ALBB to ask questions or get feedback on the work I was assigned. The best moments I had were feeling like an asset to the team on every case I worked on.

CAROTHERS DiSANTE & FREUDENBERGER LLP Dave Carothers Partner The Diversity Fellowship Program has brought to the forefront the wonderful things that can happen when inclusion and diversity become part of the law firm experience. Carothers DiSante & Freudenberger LLP is honored to be among the founding participants in this worthwhile program.

Khellya Okunor Osei California Western School of Law The greatest take-away from my experience with the Diversity Fellowship Program is the mentorship of Dave Carothers. Though he is the managing partner at Carothers, DiSante & Freudenberger LLP and an extremely busy man, he took the time out to welcome me into the legal profession through his generous mentorship. The strong bond we formed as mentor/mentee gave me the confidence and strong foundation for future success in my legal career.

COZEN O’CONNOR Peter Lynch Member The Diversity Fellowship Program allows Cozen O’Connor to encourage diverse students to excel, while simultaneously reenergizing our own attorneys who work with them. The optimism, energy and drive of the students creates a true “win-win” for both parties.

Camila Moreno California Western School of Law This summer I was in court weekly, drafting motions daily, and developed more as a legal professional at Cozen than I did my entire first year of law school. The people, culture, and concepts I had the opportunity to discover as a Diversity Fellow have been invaluable. I am so grateful to have been selected to be a part of this incredible program. September/October 2015 SAN DIEGO LAWYER 25


FIRMS & FELLOWS FERRIS & BRITTON, A PROFESSIONAL CORPORATION Michael Weinstein Lawyer with Ferris & Britton, APC The Diversity Fellowship Program is a win-win for Ferris & Britton. We win because we are better able to serve our diverse clients by becoming more diverse ourselves. And we win again because we have bright, outstanding law students at our firm each summer who make superb contributions to our practice. Within the last year, we hired our 2012 summer clerk as a full-time associate. Six straight years of participation in the program has taught us that we learn more as mentors than we can ever provide to our “fellows” and we are grateful.

Anna Dzhabaryan Thomas Jefferson School of Law The DFP program gave me an amazing handson opportunity to work with some of the best business litigation attorneys in San Diego. I gained invaluable experience and professional relationships that will last me throughout my career!

HIGGS FLETCHER & MACK LLP Susan Hack Partner Our firm constantly strives to remain true to our commitment to the SDCBA’s Diversity Pledge. Participation in the Diversity Fellowship Program is one rewarding way we accomplish that. What I enjoy hearing every year is the positive feedback from attorneys at our firm who work with the fellows. I received this email from one of my “tough grader” partners about one of our past diversity fellows: “Susan: this fellow may still be a law student, but he functions like a 2-3 year attorney. Excellent product. Excellent work.” Higgs looks forward to supporting the program for years to come.

Kim Cruz Thomas Jefferson School of Law My internship at Higgs Fletcher & Mack LLP was absolutely spectacular. I am extremely grateful for the opportunity to practice and develop my lawyering skills this past summer. The amount of belief and support I received from everyone at the firm was incredible. Thanks to the DFP, I was able to gain an immense amount of practical legal experience, while making meaningful connections with some of the best attorneys, staff, and administration in the field.

KLINEDINST PC Brian Murphy Associate The DFP is a great help in our firm’s search for new talent, and the enthusiasm, skill, and hard work that our diversity fellow delivered this year did not disappoint. During our time together, the firm also gained a more subtle benefit: a strength that comes from the differences our diversity fellow brought to the table.

Andrew Parsons University of San Diego School of Law Through my experience with the Diversity Fellowship Program and Klinedinst PC, I have gained a greater understanding of the dualistic nature of San Diego’s legal market. While this may be a profoundly interconnected, intimate industry, I have been greatly impressed by the breadth of diversified and quality legal services provided by the members of our legal community.

MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C. Dawn Saunders Partner Mintz Levin has always sought out ways to expand diversity and promote diverse candidates and the SDCBA DFP program has been a great partnership for us. The mentoring and insight gained by the participants in the program is something that will really help as they pursue their career in the law, and the benefit to Mintz Levin in promoting diversity in the legal profession and having the opportunity to work with some very talented future attorneys has been invaluable. 26 SAN DIEGO LAWYER September/October 2015

Anthony Vargas California Western School of Law My time at Mintz Levin was unlike any other. The legal knowledge I gained has undoubtedly made me more prepared for my career. I not only gained an invaluable amount of experience, but they also showed me a great time in the process.


FIRMS & FELLOWS PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP Jeff Ames Partner As a regular participant in the DFP for several years, Paul, Plevin, Sullivan & Connaughton has been impressed by the professional dedication and high quality of work from our DFP fellows. Our fellows bring a variety of backgrounds and life experiences to our firm, and Paul, Plevin attorneys enjoy contributing to their future success by training them, providing opportunities for meaningful legal work, and maintaining relationships as they begin their careers.

Keia Atkinson University of San Diego School of Law My summer was incredible – in addition to researching, writing, and observing depositions and hearings, I had the opportunity to work a trial with a veteran litigator and experienced trial team, and learned more through that process than I could have imagined. My summer at Paul, Plevin, Sullivan and Connaughton is the best summer experience I could have possibly had after my first year of law school, and leaves me extremely well-prepared for the future.

PÉREZ WILSON VAUGHN AND FEASBY, INC. Michael Pérez Partner This experience provided us with the opportunity to work with a smart, diligent, enthusiastic law student who reminded us daily why we became lawyers 25 years ago. We brought Meline to a deposition and a few hearings. Often we would provide her with written materials in advance so that she could better understand what was happening. On more than one occasion Meline asked very insightful questions that helped us not only prepare for the hearing or deposition, but her questions also reminded us of our case themes and helped us to better articulate our strongest arguments.

Meline Grigoryan Thomas Jefferson School of Law It got real last summer at Perez Wilson Vaughn and Feasby. I was given the opportunity to work on important, high value cases with very successful attorneys who are so passionate about what they do. The necessity of paying attention to detail suddenly became apparent since even minor details can make monumental differences for your client.

PROCOPIO, CORY, HARGREAVES & SAVITCH LLP Thomas Turner Managing Parnter Year after year, we have had absolutely terrific diversity fellows. Without exception, they have come well vetted and prepared, with a great attitude, and have added not only well-received cultural richness and diversity, but truly beneficial, high quality legal work.

Jordan Turner University of San Diego School of Law My experience as a Diversity Fellow was a tremendous one. Being placed at Procopio, Cory, Hargreaves & Savitch connected me with so many unbelievably talented attorneys. In three months, I acquired more memorable moments than I can count on one hand, but something that particularly sticks out is when I was asked to return to Procopio for the fall as a Law Clerk. I am truly grateful and tremendously honored to be a Diversity Fellow.

SAN DIEGO COUNTY, OFFICE OF COUNTY COUNSEL Thomas Montgomery County Counsel The Office of County Counsel appreciated the opportunity to participate in the Diversity Fellowship Program and sees it as a way to further the County’s commitment to a skilled, adaptable and diverse workforce.

Samantha Yu University of San Diego School of Law The Diversity Fellowship Program gave me an opportunity to work in my 1L summer like a first-year associate. It was a once-in-a-lifetime experience for me to put excellent work on my resumé, to gain insight into a lawyer’s practice, and to connect with all the great people I encountered. Anyone who can participate, should participate.

September/October 2015 SAN DIEGO LAWYER 27


CWSL_SDLawyer_2015_03_Layout 1 5/22/15 9:51 AM Page 1

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FIRMS & FELLOWS SAN DIEGO COUNTY DISTRICT ATTORNEY’S OFFICE Melissa Diaz Deputy District Attorney Our diversity fellow experienced the importance of helping victims achieve justice and representing the community when he second chaired a complex residential burglary series. The day after he received his certification to appear in court, we threw him in the deep end of the pool. He conducted a direct examination of a residential burglary victim and a police officer. He did a great job!

Olavo Michel Thomas Jefferson School of Law My fellowship with the District Attorney’s Office was a great, eye-opening experience. As a Certified Legal Intern, I was able to do a direct examination of two witnesses on a trial and argue a motion in court, right after finishing my first year of law school. This experience showed me an exciting part of criminal law that I never considered before.

SAN DIEGO COUNTY PUBLIC DEFENDER’S OFFICE Monique Carter Public Defender The San Diego Public Defender’s Office values diversity in the workplace. The Diversity Fellowship Program put forth amazing candidates affirming our decision to participate in the program. Our fellow, Liku Madoshi, put her best foot forward during her internship with our office. It was truly a symbiotic relationship: she gained an appreciation and passion for indigent defense and we gained time and energy put into our clients from a very capable law student.

Liku Madoshi Thomas Jefferson School of Law Before my internship with the Public Defender’s Office, I had no interest in criminal law. That quickly changed within the first days of my internship. It was an opportunity to learn some of the processes of criminal law, enhance my skills in legal research and document drafting, and network with attorneys and other student interns. More importantly, I gained a valuable perspective – everybody deserves a chance. I am beyond grateful for the experience and look forward to working with the Public Defender’s Office again.

SEMPRA ENERGY Dawn Andrews General Counsel Sempra Energy is one of the founding participant employers in the SDCBA Diversity Fellowship Program. Each year, we host two fellows from the program. We continue to participate in the program each year because it allows us the opportunity to work with some of the brightest and most personable law students in San Diego. The best part of the program is continuing to watch the heights to which alumni of the program reach in their legal careers. We highly recommend the program to all law firms and corporate law departments.

Briana Collings California Western School of Law My experience with San Diego Gas & Electric and Sempra Energy this summer was an amazing introduction to the practice of law. In any given day, I worked in many different areas of law and was able to see how a large company’s legal team functions as a cohesive team to provide legal support and advice. My time with these companies was an unparalleled experience, and my participation in the Diversity Fellowship Program will undoubtedly open doors for me as I continue my education and begin a legal career.

Desi Kalcheva University of San Diego School of Law My SDCBA Diversity Fellowship has left an indelible impression upon me as I advance in my legal career. Between Sempra and SDG&E, I was privileged to work with expert attorneys who met my co-intern and me with care for our practical skills development. Being constantly engaged in hands-on work in diverse practice areas allowed me to hone in on my research and writing skills and produce work that was incorporated into various stages of litigation and business decisions. I simply couldn’t have asked for a more immersive work experience and thank the SDCBA and participating employers for sustaining this program for future law students.

September/October 2015 SAN DIEGO LAWYER 29


FIRMS & FELLOWS SONY ELECTRONICS INC. Jonathan Pearl Executive Vice President of Law & Compliance

Summer Main California Western School of Law

Sony Electronics is a firm believer that a diverse work environment leads to a successful work environment, and participation in a great program like the Diversity Fellowship Program has acted to strengthen and reinforce that belief.

What made the DFP great wasn’t the pay or the resumé boost, it was the attorney interaction. Working with Sony’s team not only greatly increased my substantive legal knowledge, but I was mentored on countless intangibles: advocacy, strategic thinking, creative problem solving, and ethics. Coming from an underprivileged background, I’ve spent the majority of my life with my face anxiously pressed against the glass, looking in. The Fellowship opened the front door.

WILSON TURNER KOSMO LLP Christina Tapia Senior Associate

Anyse Chukwudelunzu Thomas Jefferson School of Law

Wilson Turner Kosmo LLP has participated in the Diversity Fellowship Program from the beginning. Our firm is passionate about supporting quality organizations that promote diversity in the legal community. By recruiting top talent with diverse qualifications, backgrounds and experiences, our firm has managed to compete successfully in an increasingly global market place. We look forward to our continued involvement with the Diversity Fellowship Program.

I gained a great mentor out of the program. My mentor treated me as an equal and allowed me to have a voice. She gave me opportunities to work on my writing through research and to better my analytical skills by seeking out my thoughts about case strategy for an ongoing case. I even had the opportunity to attend a trial in L.A.! I gained invaluable legal skills from this program, which are extremely rewarding for my professional career and personal growth.

THANK YOU 2015 DIVERSITY FELLOWSHIP PROGRAM EMPLOYERS ANDREWS • LAGASSE • BRANCH & BELL LLP

PROCOPIO, CORY, HARGREAVES & SAVITCH LLP

CAROTHERS DiSANTE & FREUDENBERGER LLP

SAN DIEGO COUNTY, OFFICE OF COUNTY COUNSEL

COZEN O'CONNOR FERRIS & BRITTON, A PROFESSIONAL CORPORATION HIGGS FLETCHER & MACK LLP

SAN DIEGO COUNTY DISTRICT ATTORNEY’S OFFICE

KLINEDINST PC

SAN DIEGO COUNTY PUBLIC DEFENDER’S OFFICE

MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND PEPEO, P.C.

SEMPRA ENERGY

PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP

SONY ELECTRONICS INC.

PÉREZ WILSON VAUGHN AND FEASBY, INC.

WILSON TURNER KOSMO LLP

See photos from the SDCBA’s annual Dialogue on Diversity program on page 46 and Facebook! This year’s keynote speaker was Vernā Myers, a cultural competency expert and internationally renowned speaker. Learn more about Vernā’s work at www.vernamyersconsulting.com.


Continued from page 7

4 Thoughts About Closing The Diversity Gap In The Legal Profession As I have previously mentioned, the tech industry and legal profession (along with others) are both facing a diversity crisis. Many of the same restrictive structures, policies, and biases can be found in both sectors. Correlation or causation? One difference between these two professions is that the tech industry’s leaders are publicly addressing this issue and making it a priority in 2015. Whether forced or persuaded, the leaders in the tech industry are beginning to change the way they usually operate and starting to embrace the challenge of diversity. They are developing real, practical programs to deal with diversity. Intel has pledged $300 million towards this cause; Sandberg has founded LeanIn.org and become an active, influential, and powerful champion for equality in her field; and Google has launched an education initiative to address this problem as well as committed to an unconscious bias training program. What is preventing the majority of law firms from implementing these types of policies? Do diversity activists in the technology field demand more than we demand? Or have leaders in the tech industry taken more ownership of this problem than partners in our profession? Going forward, which industry will be more willing and able to handle and promote diversity? Which industry will be more diverse in 2020? Why?

3. Transparency Is Key According to BCG: Executives will need to look beyond these topline numbers and conduct quantitative and qualitative analyses of their workforce through surveys, interviews, benchmarks, focus groups, and quick pulse checks. The data should be broken down by business unit, function, and region. The point of such a diagnosis is not to lay blame but to improve. Such data typically reveals pockets of best practices that can be replicated. The findings also may indicate places to dig further for evidence of unconscious biases in hiring, promotion, and retention practices. This level of transparency and thoroughness demonstrates commitment

to employees and recruits—much more so than simply releasing raw, topline diversity statistics. This root cause analysis allows companies to turn the page and start creating a diverse and inclusive workforce in a new way. The results should be on the dashboards of senior executives and business leaders and refreshed regularly. Earlier this year, Professor Melissa Hart, past president of the American Bar Association Laurel Bellows, and I were guests on The Legal Talk Network’s Lawyer 2 Lawyer Podcast, where we discussed the importance of transparency and objective metrics in fighting discriminatory tendencies of a firm’s culture. In an earlier post, I wrote that to avoid showing discriminatory tendencies, firms should have objective measures of success for their employees. Transparency in the form of open communication, proper expectations, and objective measures are critical for success in the workplace. As U.S. Supreme Court Justice Louis Brandeis famously stated, “Sunlight is said to be the best of disinfectants.” In other words, if the broad light of day could be let in upon our actions, it would purify us as the sun disinfects. A black-box type of promotion process handicaps employees and promotes a discriminatory environment. This being said, subjective measures are not going anywhere; they are inherent in the dynamics of the employment environment. It is when subjective measures corrupt the employee review process that discriminatory acts are enabled to become pervasive in the workplace. Many employees face discrimination even where no harmful intent of discrimination exists. I’d argue the majority of employees encounter unconscious racial and gender bias much more often than overt prejudice.

4. Hiring Practices According to BCG: Job referrals, which are a key source of leads in Silicon Valley, tend to mirror the current employee pool rather than expand it. Similarly, interviews that focus

on achieving a good fit with the company can damage the chances of women, blacks, and Latinos. The unconscious biases of the interviewers can cause them to unintentionally hire candidates who are like themselves. These challenges can be overcome through mechanisms such as training, more inclusive recruiting pools, and blind resume screening: half of all Google employees, for example, have participated in workshops on unconscious bias, and some orchestras have achieved greater diversity by using blind auditions. Leveraging professional associations of women, blacks, and Latinos also makes sense. IBM, for example, partners with the Society of Women Engineers, the National Society of Black Engineers, and NACME. I believe implicit bias is the silent killer of diversity in the legal profession. I recently recommended 3 things law firms can do right now to increase diversity in the legal profession. To improve hiring practices, law firms should: 1. implement a résumé-blind policy for job interviews; 2. conduct “unconscious bias” workshops; 3. and begin with the end in mind. By 2042, it is projected that no one race or ethnicity will be a majority in America. It would be great if the legal industry reflected the diversity of people and culture in our country, but this has never been the case. It is important to recognize that diversity does not happen by accident. Diversity is not self-executing. Accidental activists do not exist. We cannot hope our way to change. Diversity needs to be fought for, it needs a voice. We have to fight for it. We have to become the agents of change whom we seek. The legal profession must strive to be more racially tolerant if it aspires to be as diverse as the country it serves. Renwei Chung attends SMU Dedman School of Law. He has an undergraduate degree from Michigan State University and a MBA from the University of Chicago. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn.

This article originally appeared on AbovetheLaw.com on August 21, 2015 and is reprinted with the author’s permission. The article is available at http://abovethelaw.com/2015/08/4-thoughtsabout-closing-the-diversity-gap-in-the-legal-profession/ September/October 2015 SAN DIEGO LAWYER 31


BY CHRISTOPHER TODD

BAR HISTORY

Gender Equality Through the Retrospectoscope 2015 marks a century of women serving on the jury in San Diego

I

n two recent jury trials, I had conflicting, but related, situations. In the first trial, a very serious auto accident case, we hoped to have a predominantly male jury. Female after female kept coming up, and the majority of the panel was ultimately female. In the second trial, a mold injury and property damage case, I hoped for a predominantly female jury. As luck would have it, male after male kept coming up, and the majority of the panel was ultimately male. So much for the peremptory process. But, hey, even if the process didn’t work out the way I wanted it to, at least I had the option. Can you imagine a time when the prospective panel included only males? It wasn’t so long ago. Females first served on a jury just 100 years ago, on September 29, 1915. Think of how many trials went forward, ridiculously, without half the citizens of our county – the more intelligent at that – participating as the triers of fact. Some background: under common law, only men could be jurors. In order to speed along the decision making process, sometimes the men could be ordered to be locked up together, to be sequestered (as rarely happens anymore), and to have no contact with the outside world until the verdict was reached. The old “wisdom” was that potential overnight stays would not be appropriate for ladies. The backwards thinking of that day also caused state constitutional amendments on equal rights grounds. Women’s suffrage, the right to vote, came into law in 1911. As they say in the GEICO ads, “Everybody knows that.” But did you also know that until a constitutional change in 1879, it had been technically illegal for females to participate in businesses, vocations, or professions? Fortunately, those, and other amendments since, have continued to balance the off-kilter prejudice of the early 1900s. Let’s look at a few more facts which

led to females in the jury box. In 1914, San Diego’s branch of the Women’s Christian Temperance Union urged the County Supervisors to allow female jurors. The Supervisors refused. The refusal was based in part on the legal opinion of the then-sitting District Attorney, Harry S. Utley. Shortly thereafter, Utley was defeated in his re-election bid. When the new District Attorney, D.V. Mahoney, took office, he had his deputy, Spencer Marsh, research and write an opinion on whether females could serve. In Marsh’s legal memorandum, dated January 7, 1915, Marsh concluded that, in fact, women should serve on juries. Back in those days, a semi-permanent jury panel of 80 citizens was kept on standby for a month or more. It was not uncommon for jurors to serve on more than one case. In fact, attorneys benefited from a service that kept track of jurors’ voting proclivities, in handwritten notes known as “The Book” while the jurors continued to serve. In any event, after Marsh’s legal memorandum in January 1915, six females were immediately added to the 80-member panel. However, change in the jury box did not come quickly and easily. No females became part of a sitting jury until, in one case, three of them made it at one time, in September 1915. The case was a criminal matter, and the jury of nine men and three women found the defendant not guilty. However, pursuant to rulings in other parts of California, perhaps the three female jurors were the ones who had engaged in criminal conduct. You see, it wasn’t until 1918 that the California Supreme Court finally ruled pursuant to the constitutional amendments on businesses and professions, and on suffrage, that, in effect, the constitutional requirement of an all-male jury had been negated. Can you fathom a jury without both genders? It seems ridiculous. And yet,

it has only been 100 years since our first female jurors took their seats in the box. Oh, and in my trials, both juries told me I had gone the wrong way in jury selection anyway. In the injury case, they said I needed more females on the panel, and in the mold case, they said I would have been better off with more males. So much for my theories! Chris Todd (ctodd@wingertlaw.com) is a partner with Wingert Grebing Brubaker & Juskie LLP. With acknowledgments to Leland G. Stanford’s “Legal Lore & the Bar in San Diego County.”


34 SAN DIEGO LAWYER September/October 2015


CONTINUING THE DIVERSITY DISCUSSION In 2014, we created an infographic to show where our profession lies on the diversity spectrum. As a reminder that we still have work to do when it comes to diversifying our legal community, we’ve provided a portion of that infographic below. See the full infographic at www.sdcba.org/SDLdiversity.

GENDER

SEXUAL ORIENTATION

MALES

FEMALES

50.7%

49.3%

OF THE U.S. POPULATION

ATTORNEYS

PERCENTAGE OF THE U.S. POPULATION WHO SELF-IDENTIFY AS GAY, LESBIAN, BI-SEXUAL, OR TRANSGENDERED

2.3%

OF THE U.S. POPULATION

4.6%

ATTORNEYS 2.7%

66.6%

1.0% 4.6%

2.7%

5.4% 4.6%

4.2%

33.4%

ATTORNEYS SELF-IDENTIFYING 1.0% LESBIAN, BI-SEXUAL, 4.6% AS GAY, OR TRANSGENDERED

2.7%

1.0%

4.2%

5.4%

4.6% 60.6% 63.8%

4.6%

4.2%

3.6%

36.2% 7.7%

39.4%

6.7% 3.6%

5.4%

4.6%

1.7%

Sources: Centers for Disease Control and Prevention, National Health Interview Survey, State Bar of California 2014 7.7% 6.7% 3.6% 7.7% Legal Employers Report, 2013 SDCBA ERDC Diversity Survey

6.7%

RACE & ETHNICITY

0.8% 6.1% ATTORNEY DEMOGRAPHICS

2.4% 0.8%

6.1%

2.4%

0.8%

6.1%

2.4%

85.7%

84.3%

80.3%

CAUCASIAN

AFRICAN AMERICAN

ASIAN

HISPANIC/LATINO

MIXED/OTHER

85.7%

84.3%

80.3% 85.7%

84.3%

80.3%

4.6%

2.7%

1.0% 4.6%

2.7%

4.6% 1.0%

2.7%

1.0%

4.6%

2.7%

1.0% 4.6%

2.7%

4.6% 1.0%

2.7%

1.0%

4.6%

4.2%

4.6% 5.4%

4.2%

4.6% 5.4%

4.2%

5.4%

4.6%

4.2%

4.6% 5.4%

4.2%

4.6% 5.4%

4.2%

5.4%

4.6% 3.6%

2.7% 7.7%

4.6% 1.0% 6.7% 3.6%

2.7% 7.7%

1.0% 3.6% 6.7%

7.7%

4.6% 6.7%

4.6% 3.6%

2.7% 7.7%

4.6% 1.0% 6.7% 3.6%

2.7% 7.7%

4.6%1.0% 3.6% 6.7%

2.7% 7.7%

1.0% 6.7%

4.6% 0.8%

4.2% 6.1%

4.6% 5.4% 2.4% 0.8%

4.2% 6.1%

5.4% 2.4% 0.8%

6.1%

4.6% 2.4%

4.6% 0.8%

4.2% 6.1%

4.6% 5.4% 2.4% 0.8%

4.2% 6.1%

4.6%5.4% 2.4% 0.8%

4.2% 6.1%

5.4% 2.4%

3.6% 85.7%

7.7% 84.3%

3.6% 6.7% 85.7% 80.3%

7.7% 84.3%

6.7% 85.7% 80.3%

84.3%

3.6% 80.3%

85.7%

3.6%

84.3%

7.7%

85.7% 80.3%

3.6% 6.7%

84.3%

7.7%

3.6%6.7%

0.8%

6.1%

2.4% 0.8%

6.1%

2.4%

0.8%

6.1%

2.4% 0.8%

6.1%

0.8%2.4%

85.7% 80.3%

7.7%

84.3%

1.0%

4.2%

5.4%

7.7%

6.7%

6.1%

2.4%

6.7%

80.3%

0.8%

6.1%

2.7%

2.4%

Sources: 2010 U.S. Census, State Bar of California 2014 Legal Employers Report, 2013 SDCBA Ethnic Relations & Diversity Committee (ERDC) Diversity Survey 85.7%

84.3%

85.7% 80.3%

84.3%

80.3%

85.7%

84.3%

85.7% 80.3%

84.3%

85.7% 80.3%

85.7%

84.3%

80.3%

84.3%

80.3%


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In the July edition of For the Record, the SDCBA's publication for Emerging Lawyers, I emphasized the importance of being kind and respectful with all colleagues – lawyers and other legal professionals alike. Here, leaders from the San Diego Paralegals Association help us continue the conversation by sharing their thoughts and memories on #ProInPractice.

in

Introduction by Richard Huver 2015 SDCBA President

Kelli Moro

When working on a PUC administrative hearing, we were up against nightly deadlines working with government agencies. In order for materials to be ready for daily hearings, our paralegal team had to work in tandem nightly with the opposing attorney and paralegal teams. This teamwork allowed for our attorneys to get a few winks of sleep so they were fully prepared for daily oral argument, and still ensured all evidence was properly submitted and formatted for the Commission. Without this teamwork, the hearings would have extended into three weeks of work and numerous sleepless nights scrambling to prepare materials. The opposing stands of each side were never an issue in the teamwork dealings, as we all had the same goal in mind to get the case heard efficiently and thoroughly. Kelli Moro (treasurer@sdparalegals.org) is Treasurer of the San Diego Paralegal Association.

“Good Manners are the lubricating oil of organizations.” – Peter Drucker

Julie Schwartz

Good manners, active listening, tolerance, and the importance of claiming one’s own needs without disregarding the needs of others are all key attributes in great civil leaders. As a leader within the legal community, I have been witness to far too many contentious arguments, read too many bellicose correspondence and/or scathing e-mails to understand fully that these interactions, while it may seem like zealous representation, is non-productive in achieving results. Rather, this behaviorism creates “roadblocks” and bad sentiment both inside and out of the legal community…everyone has a “bad attorney story.” In lieu of creating “roadblocks,” I choose civility. I personally have used/use the techniques of good manners, active listening, tolerance, and meeting others’ needs without compromising my own, that, had I not, would have caused the situation at hand to “derail from its tracks.” Good manners, civility, and a genuine appreciation of the other person that you are interacting with, whether it be an opposing counsel, client, boss, doctor, co-worker, or board member, will “move mountains” in lieu of creating “roadblocks.” People will not remember what you said six months from now; however, they will remember how you made them feel. They will remember their interaction with you and its final resolution – good, bad, or indifferent. With the employment of good manners, genuine appreciation, and acknowledgment of the humanity of the other person involved, you will reinforce that person’s worth/dignity, thereby improving the probability of a successful outcome. When asking “how are you," be sincere. It will indicate to the other person that you care about their wellbeing and outcome – irrespective of the situation. Good manners and civility can and will affect the performance of the legal organizations within the community. The next time you are confronted with a situation choose to be mindful…choose civility. Julie Schwartz (membership@sdparalegals.org) is Membership Chair of the San Diego Paralegal Association.

What do you think makes a true professional? #ProInPractice

#SetTheBarSD

www.sdcba.org/professionalism

Share your thoughts and stories about civility with us on social media to help us show others how true professionalism in practice is thriving in our legal community. Learn more at www.sdcba.org/professionalism. September/October 2015 SAN DIEGO LAWYER 37


M

Y

Y

Y


Dos and Don’ts for Jurors Does your jury know these rules? By Renée Galente

T

witter is an online social networking service that enables users to send and read short 140-character messages called “tweets.” Over 100 million users log in to Twitter on a daily basis, with 500 million tweets sent each day.1

And while social media can be a source of entertainment, news, connecting with friends or networking, it may also be shocking to see how it can be (mis)used in a courtroom during one of the most important constitutional rights granted: the jury trial. So, here’s a primer on what jurors can do, and should not do, with Twitter when they are waiting to answer important questions ranging from “Do you feel like you could be a fair and impartial juror in this case?” to “Was the Defendant negligent?” Some advice: Share this with friends and potential jurors.

DO tweet in the jury lounge. A juror can spend at least two hours sitting in the jury lounge with 200+ strangers waiting to be called. But San Diego courts offer free wireless Internet, so why not make the best of the jury selection experience! Tweeting in the jury lounge is great way to keep up on world events or provide a fun distraction from the mundane.

DON’T tweet during jury selection. When jurors are not in the box, they might think they can check out of the process. They’re told that they should listen to the questions asked so they can reflect on how they would respond, but that’s hard to do if they’re tweeting instead of listening.

Plus, jurors might not enjoy reading what others tweet about them:

Statistics courtesy of DMR Digital Marketing Stats/Strategy/Gadgets (http://expandedramblings.com/index.php/march-2013-by-the-numbers-a-fewamazing-twitter-stats/10/)

1

September/October 2015 SAN DIEGO LAWYER 39


Dos and Don’ts for Jurors DON’T tweet during the trial.

DO follow the rules the judge gives you on not using social media. In 2011, Governor Brown signed Assembly Bill 141 (effective 2012) into law which formalized long-standing informal rules banning the use of social media by jurors to discuss or research cases and amended CCP and PC sections, violations of which are subject to contempt proceedings. Who really wants to go to jail over live tweeting?

Jurors hear about the rules prohibiting social media use to talk about the case at the start of the trial. CACI 100 and CalCrim 101 are common preliminary admonitions that explain to jurors that they cannot talk about the trial with people, and that the prohibition extends to “all forms of electronic communications.” Yet…

DO share the experience afterwards. DON’T tweet during deliberations.

It’s really not that bad, I promise. And you might like it.

Yes, the cone of silence is still in place. Jurors are still not supposed to tweet about the case during the deliberation process. And while some tweets may be meant to be funny and arguably not about the case itself, a good rule of thumb? Just don’t do it.

Or not….

Renée Galente (renee@gandgtriallawyers.com) is a partner with Galente Ganci, APC.

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DIRECTORY OF EXPERTS AND CONSULTANTS

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Kathryn Karcher........................................... 19 Law Office of Steven C. Vosseller...... 38 LawPay.............................................................. 24 Lawyer Referral & Information Service.16 Panish Shea & Boyle LLP...................................11 San Diego County Bar Foundation .41 Thorsnes Bartollota McGuire............... 20 Torrey Pines Bank........................................ 48

EYEWITNESS EXPERT TESTIMONY: 46 years of forensic psychology experience with pretrial consultations and frequent court testimony regarding factors known to influence the validity of eyewitness report. Pretrial consultation can include choosing foils for live lineups and selecting jurors. Trial testimony includes charts to explain the results of scientific research demonstrating factors known to influence eyewitness identification accuracy. Thomas R. MacSpeiden, Ph.D., (619) 294-4044, fax: (619) 295-4113, e-mail: macspeidenphd@nethere.com ADVERTISEMENT

FOR ADVERTISING INFORMATION, CONTACT THE SDCBA AT 619-231-0781.


a l l o J La

EIGHTEENTH ANNUAL

An Evening in

Birch Aquarium at Scripps

We would like to acknowledge and thank our sponsors for their generosity.

PLATINUM PLUS Invitations courtesy of

Invitations courtesy of

PLATINUM Champagne courtesy of

Hosted Bar courtesy of

GOLD Valet Parking courtesy of

Hosted Bar courtesy of

�Procopio®

Flowers courtesy of

Band courtesy of Dessert courtesy of

Lanyards courtesy of

SILVER

EVENT SPONSORS Aptus Court Reports Brian & Lisa Brinig Craig & Amber Sapin Dave Kempton & Drew Woodmansee England Ponticello & St. Clair Gomez Trial Attorneys Goodwin Brown Gross & Lovelace Higgs Fletcher & Mack Hoyle Cohen

HOST SPONSORS James & Angel Gilpin Jim & Sally Sandler Joe & Colleen Ergastolo Kramm Reporting Laurie Largent Lavine Lofgren Morris & Engelberg Matt & Patty Luxton Michael & Kim Gosling Monica Sherman Ghiglia

Paul, Plevin, Sullivan & Connaughton LLP Ross Schwartz San Diego School of Law Shelburne Sherr Court Reporting & Videography Southwest Strategies, LLC Stephen & Brigitte LaSala Thorsnes Litigation Services Todd Bulich Real Estate Torrey Partners

Timothy & Micaela Banach Marcel Bourdase Shannon Brubaker Robert Chakarian Cynthia Cwik Charles & Anne Dick April Douglas Brian Funk Mark Geragos Michael Goble Richard Huver

Ellen Miller-Sharp Julie Park Kristi Pfister Timothy Richardson Rebecca Ritchey David Rubin Todd Stevens Jean Walcher Jason Whooper Rick Wildman Steven Winton

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


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 membership that indicates an outstanding commitment to the work done through SDCBA programs and services in the legal profession and the community. The following firms (five or more lawyers) are members of the 100 PERCENT CLUB for 2015, having 100 percent of their lawyers as members of the SDCBA.

Allen, Semelsberger & Kaelin, LLP Andrews Lagasse Branch & Bell LLP Antonyan Miranda, LLP Atkinson, Andelson, Loya, Ruud & Romo Austin, Brownwood, Cannon & Santa Cruz Balestreri Potocki & Holmes Basie & Fritz Beamer, Lauth, Steinley & Bond, LLP Belsky & Associates Bender & Gritz, APLC Bernstein Litowitz Berger & Grossman LLP Best Best & Krieger, LLP Blackmar, Principe & Schmelter APC Blanchard Krasner & French Bonnie R. Moss & Associates Brierton, Jones & Jones, LLP Brown Law Group Buchanan Ingersoll & Rooney PC Butterfield Schechter LLP Butz Dunn & DeSantis APC Casey Gerry Schenk Francavilla Blatt & Penfield, LLP Circuit McKellogg Kinney & Ross, LLP Cohelan Khoury & Singer Del Mar Law Group, LLP Dentons US 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 Fitzgerald Knaier 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 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

42 SAN DIEGO LAWYER September/October 2015

Kirby Noonan Lance & Hoge LLP 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 Men’s Legal Center Family Law Advocates Miller, Monson, Peshel, Polacek & Hoshaw 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 Cauley & Moot 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 Taylor | Anderson, LLP 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 Withers Bergman LLP Wright, L’Estrange & Ergastolo Zeldes Haeggquist & Eck, LLP

Sustaining Members The San Diego County Bar Association gratefully acknowledges its Sustaining Members.

PATRON MEMBERS Marc D. Adelman 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.) Frank Lawrence Birchak 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 Ralph T. Santoro Stella Shvil Stuart H. Swett


2016

SAN DIEGO COUNTY BAR ASSOCIATION

BOARD OF DIRECTORS ELECTION

STEPHANIE CHOW

California Department of Justice, Office of the Attorney General

Years as SDCBA member: 8 Areas of practice: Criminal Prosecution, Appellate, Litigation

SRINIVAS HANUMADASS

MATTHEW DEEN

Black + Deen, LLP

Years as SDCBA member: 10 Areas of practice: Business Law, Estate Planning

ROBERT KNAIER

Casey Gerry Schenk Francavilla Blatt & Penfield LLP

Fitzgerald Knaier LLP

Years as SDCBA member: 12 Areas of practice: Personal Injury, Employment Law

Years as SDCBA member: 11 Area of practice: Civil Litigation

JAMES KOERBER

ANNA ROMANSKAYA

San Diego County District Attorney’s Office

Stark & D’Ambrosio, LLP

Years as SDCBA member: 27 Area of practice: Criminal Prosecution

Years as SDCBA member: 9 Area of practice: Family Law

GARY RUDOLPH

JOHANNA SCHIAVONI

Sullivan Hill Lewin Rez & Engel, APLC

Law Office of Johanna S. Schiavoni

Years as SDCBA member: 33 Areas of practice: Bankruptcy, Real Estate, Commercial Litigation

Years as SDCBA member: 8 Area of practice: Appellate Litigation (Civil and Criminal)

SOUTH BAY SEAT

JAN MAIDEN

Scan this image to read more about each candidate, or visit

Law Office of Jan Maiden

Years as SDCBA member: 13 Area of practice: Family Law

www.sdcba.org/2016election.

Vote Now for Your 2016 SDCBA Board of Directors Online Polls Close Friday, November 13 To participate in the 2016 Board of Directors election and to read more about the candidates, visit www.sdcba.org/2016election. Voting will take place online until November 13. If you do not want to vote online, you may request a paper ballot by contacting Gretchen Trouw at (619) 321-4118 or gtrouw@sdcba.org. All votes must be received by 5 p.m. on November 13. All SDCBA attorney members are eligible to vote in the 2016 election.


Call From the Help Desk

The San Diego Law Library is looking for a few good volunteers By Cheryl Weeks-Frey

I

t’s no secret that County Law Libraries throughout the state have been experiencing drastic reductions in income. A small portion of court filing fees is our main source of income. With the drop in filings, we have lost over 30% of our budget over the past five years. We do not receive any tax dollars for operating costs. And filing revenues continue to fall each year. By statute, the County maintains our facilities, but we are on own our own to budget for operating costs. This includes staff, print collection, access to electronic databases and other business expenses. The loss of income has forced us to make hard decisions such as not renewing some print titles, giving up Westlaw, and not replacing retired staff. Due to staffing shortages, we have had to reduce hours at three of our branch locations and some may close entirely.

Through it all, we continue striving to provide top notch legal reference services and providing legal information to all those in search of legal solutions and pursuing access to justice. But we need your help. We are seeking seasoned veteran attorneys, as well as those new to the profession, paralegals, law school and library school students to join our volunteer program and help us fulfill our mission and vision. Typical volunteer opportunities include answering reference questions at the Information Desk and assisting library users to determine the best resources to research their legal concerns. Since we are not a legal service provider, we do not give legal advice. Law school students gain hands on experience during face-to-face patron interaction while learning how to use a variety of legal resources in both print and electronic formats. In addition to assisting library users at

the Information Desk, there are networking opportunities helping with library programs and events, including our annual Witkin Award Dinner and Open House. Volunteering at the San Diego Law Library is simple; just fill out and submit the volunteer application form with your current resumé, and we’ll contact you when there’s a project that fits with your experience. No matter where you are in your career, ready to retire or just getting started, volunteering even a few hours a month will help. For more information on the San Diego Law Library’s Volunteer Program, visit sandiegolawlibrary.org/join-us/volunteer or contact Cheryl Weeks-Frey, Community Outreach Officer, at (760) 940-4760. Cheryl Weeks-Frey (cwfrey@sdlawlibrary.org) is the Community Outreach Officer with the San Diego Law Library.

Distinctions San Diego Superior Court Judge Marshall Hockett retired after serving on the bench for more than 15 years.

Richard Shaw, partner with Higgs Fletcher & Mack, recently received the John E. Jaqua Distinguished Alumnus Award from the University of Oregon School of Law Alumni Association.

San Diego Volunteer Lawyer Program CEO Amy Fitzpatrick was recognized with a 2015 Witkin Award for Excellence in Civic Leadership and Philanthropy.

Rebecca Kanter, Assistant U.S. Attorney for the Southern District of California, received the 2015 Federal Bar Association Elaine R. “Boots” Fisher Award.

Teodora Purcell, an attorney with Fragomen, Del Rey, Bernsen & Loewy, LLP, was named Attorney of the Year by Casa Cornelia Law Center.

Suzanne Varco, managing partner of Opper & Varco LLP, was recently elected to the San Diego Women's Foundation's board of directors.

Thorsnes Bartolotta McGuire founding partner Vincent Bartolotta was inducted into the International Academy of Trial Lawyers.

Steve Korniczky was elected a Fellow to the American Bar Foundation

Passings We are saddened to share that George McClenahan, SDCBA Legend of the Bar, recently passed away. In a video recorded in 2006, George shared his advice for newer lawyers coming into practice: "I think the practice of law can be a lot better if you can maintain a personal relationship not only with your colleagues who are on the same side of the fence, but with the people who are working on the other side of the street who you are

having to deal with on a day-to-day basis. I think that machines are important and helpful – or they wouldn't be used – but I think that you enjoy the practice of law a lot more if you have the camaraderie or collegiality that exists in a person-to-person relationship." To watch the video in its in entirety, visit www.sdcba.org/McClenahanLegend. September/October 2015 SAN DIEGO LAWYER 45


DIALOGUE ON DIVERSITY: CULTURAL COMPETENCY

B

Photos by Jason de Alba

A

On September 16, Vernā Myers, Founder and President of The Vernā Myers Company, led a thought-provoking discussion about bias and inclusion and explained the importance for lawyers to be culturally competent. After the event, attendees networked and mingled on the Bar Center terraces.

t

PHOTO GALLERY

l

w

L-R: Justin Paik, Kenny Nguyen, Amy Yu

L-R: Jerrilyn Malana, Vernā Myers, Melissa Deleon, Ellen Miller-Sharp

Want to see more?

Christina Tapia, Kia Roberts

See more event pics on the SDCBA’s Facebook page at www.facebook.com/ sandiegocountybar!

BAR FOUNDATION'S EVENING IN LA JOLLA Photos by Douglas Gates Photography

Joe and Colleen Ergastolo

L-R: Molly Selway, Ramon Thompson, Shannon and Joel Brubaker

L-R: Eric and Janis Townsend, Stefanie and Arthur D'Egidio

Brent Douglas, Matt Luxton

L-R: Barbara Zanette, Mercedes Castro, Renée Galente, Eric Ganci

LAW STUDENT WELCOME RECEPTION & SECTION, COMMITTEE & LAW RELATED ORGANIZATION FAIR Photos by Jason de Alba San Diego's law students were welcomed to the legal community on September 24. SDCBA section and committee leaders as well as local specialty bar associations also provided attendees with information about their groups.

Guests supported providing access to justice to underserved in our community at the San Diego County Bar Foundation's Evening in La Jolla event on September 19.

Josh B

L-R: Shawn Huston, Harold Holmes, Layla Toma

L-R: Helen Irza, Michelle Rogers, Dustin Pinder

46 SAN DIEGO LAWYER September/October 2015

Fransina Savusa, Rebecca Yonashiro


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San Diego Lawyer September/October 2015  

Inside this Issue: Embracing Diversity & Closing the Gap; 100 Years of Women Serving on the Jury; SDCBA Files Amicus Brief; Jury Tweets: Dos...