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Features Central Focus: Career Pathways
It All Starts Here A coach and student reflect on how the local High School Mock Trial Competition paves the way for young legal minds and inspires legal professionals
The Legalities of Leap Year Day Some SDCBA colleagues are leap year babies. Does the leap year affect their birthday wishes? And how does the extra day affect attorneys in general? By Danwill Schwender
By Troy Rayder and Victor Torres
Which Route Will You Take? How new attorneys can experience all of the SDCBA
The Law Clerk: An Alternate Career Different ways attorneys utilize their law clerk experience By Edward McIntyre
The Value of the Clerkship A conversation with Professor Michael Ramsey, former supreme court clerk for Justice Antonin Scalia By Danwill Schwender
Modern Mediation Local mediators and legal professionals discuss how mediation has evolved By Ray Huard
Why I Belong Get to know SDCBA member Jason Sheinberg
By Alidad Vakili
A Day in the Life Spend a day with 2016 SDCBA President Heather Riley
So Much More to Give These attorneys found fulfillment outside of the legal volunteer "box" By Teresa Warren
Revisiting Ardon Some observations from the Ardon v. City of Los Angeles oral argument By Edward McIntyre
Deans Examining recent criticisms of law school education By Niels Schaumann
Tips Financial advice for the legally sound By Jeremy Evans
Ethics Sex and the single lawyer
By Stephenie Alexander
Technology Clients' data lives on laptops, mobile devices and in the cloud – what are you doing to protect it? By William Kammer
By Edward McIntyre
New Employment Laws A quick guide of new California laws to keep in mind in 2016
In-House Perspective Q & A with Carolyn Harris, General Counsel for Ramona Valley Winery Association
Gallery Memorable moments caught on camera
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Issue no. 1. 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 © 2016 by the San Diego County Bar Association. All rights r eserved. Opinions expressed in San Diego Lawyer are those of the author only and are not opinions of the SDCBA or the San Diego Lawyer Editorial Board.
4 SAN DIEGO LAWYER January/February 2016
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WHY I BELONG
THE JOURNAL OF THE SAN DIEGO COUNTY BAR ASSOCIATION
Sheinberg Law Group, APC Education: University of San Diego, 2000; Thomas Jefferson School of Law, 2003 Area of practice: Trusts and estates, conservatorship, Medi-Cal planning Proudest career moment: It’s really hard to say what my proudest career moment is. There are good days and tough days in this profession. Any good day would qualify. Recently, my proudest moment was taking a “selfie” with Superior Court Judge Julia Kelety at the Probate Prom. She’s amazing at what she does! Being around her is pretty cool. Family: Married to the most amazing wife ever, Sara Sheinberg. We have two precious twin boys, Blake and Evan, age four. Birthplace: San Jose, CA Current area of residence: Carmel Valley If I weren’t an attorney, I’d be a teacher. The ability to have such an impact on a young person’s mind is awe-inspiring. I respect teachers like none other. The best thing about being an attorney is that I meet a lot of people, sometimes when they are at the most vulnerable state. Being able to help a person in need is truly a wonderful thing. We touch so many lives every year at our office and we truly hope they know how much we care for them. I see my wife, my parents, my sister and brothers in every client we serve. It’s an honor. Last vacation: Park City, UT Favorite Web site: espn.com or onion.com Hobbies: I love building things around the house and/or watching sports. Favorite book: The Stand by Stephen King Favorite musical artist: Steve Aoki. He is an incredible talent.
Co-Editors Edward McIntyre Christine Pangan
Editorial Board Stephenie Alexander Hali Anderson Craig Benner Elizabeth Blust George Brewster, Jr. Brody Burns Barry Carlton James Crosby Jeremy Evans Michelle Evenson Frantz Farreau
Renée Galente Eric Ganci Michael Hernandez Andrea Monk Erik Nelson Suzanne Schmidt Danwill Schwender David Seto Christopher Todd Alidad Vakili Teresa Warren
Cartoonist George Brewster, Jr.
SAN DIEGO COUNTY BAR ASSOCIATION
Executive Director Ellen Miller-Sharp
Communications Director Karen Korr
Graphic Designer Attiba Royster
Publications Editor Jenna Little
Favorite food: Mexican food, by a mile. Why do you belong to the SDCBA? I belong to the SDCBA because it puts me around people who I respect and admire on a nearly daily basis. My grandfather once told me to put myself around smart people who I could learn from. Being a part of the SDCBA connects me with people I look up to and I love it. How does your SDCBA membership help keep you connected to the legal community? I am honored to serve the SDCBA on the Lawyer Referral & Information Service (LRIS) board. Being on the LRIS panels and being able to serve the SDCBA through the LRIS board has made it so I can not only connect myself with potential clients, but so many others as well. Also, I really enjoy being at the Bar Center to interact with colleagues and SDCBA staff. The people at the Bar Center make for an amazing experience. I am proud to work with everyone down there. Just being there makes me a better attorney and a better person. What makes San Diego’s bar so special/unique? Everyone always says this, but San Diego truly has a small town feel. Our legal community feels the same. Being a part of the SDCBA is like being a part of a family. When I walk into the Bar Center I know I can always count on seeing a familiar face. We bounce ideas off one another, we talk about accomplishments and travails, and we gain support in one another. Our Bar is unique because the people who support it and the people who are a part of it are so willing to help each other. I don’t see how this family feel could ever translate in other “big” cities in California. The SDCBA is truly a family. That’s great for our city! 6 SAN DIEGO LAWYER January/February 2016
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The Legalities of Leap Year Day By Danwill Schwender
eap Year is upon us -- just an added day to calendar for most of us. But for the one in 1,461 people in the U.S. born on Leap Year Day, February 29 is a really big deal. SDCBA member and leap year baby Catherine Blakespear earned her J.D. before she officially even had an 8th birthday – and will finally reach “double digits” – age 10, in 2016. Catherine shares her birthday with Karen Korr, the SDCBA’s Director of Communications and Outreach Strategy, who will also be turning 10 this year. Confusion about Leap Year Day (and when one actually should celebrate their leap year birthday in “off” years abounds), with a friend of Catherine’s once multiplying her birthday by four and wishing her a Happy 112th birthday. Catherine is a solo practitioner in Cardiff who practices wills, trusts, and estates planning, family contracts such as premarital agreements, and probate issues. She also serves on the Encinitas City Council – this year as Deputy Mayor. The Encinitas City Council has a custom of sending council-members a birthday card signed by their colleagues. Unfortunately, in Catherine’s first year on the Council, her birthday did not appear in the Council’s master calendar because there was no February 29. As a result, the Council forgot to send her a birthday card. Most of the time, however, she receives birthday wishes on both February 28 and March 1, which is “a nice two-day birthday present,” says Catherine. “All around having a leap year birthday is a fun oddity.” Karen agrees, saying “Whenever you are in a meeting and you have to share an interesting fact about yourself, my birthday is a good go-to and natural conversation starter.” In the past few years, Facebook has listed February 28 or March 1 for her birthday in non-leap-years, and so she generally gets the most birthday wishes on whichever day Facebook picks. In 2015, however, Facebook neglected to give her a birthday at all, so “friends remembered around mid-March that they had missed my birthday somewhere.” From a legal perspective, particular states have statutes that determine whether a leap year baby turns 18 or 21 on February 28 or March 1. Guidance on this issue can be found in common law in any state – if a state excludes the day of birth in age computation, March 1 is the date a leap year baby will turn 18 or 21; if a state includes the day, then February 28 is the date. While the date has few implications, it does come up in court a bit. For example, is a one-year conviction in a leap year 365 days or 366? If we don’t figure it out now, at least we have four more years to work on it.
Danwill Schwender (firstname.lastname@example.org) is an attorney with Foldenauer Law Group, APLC.
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Hello and Happy New Year! By the time you get this, 2016 will be well underway, but my first order of business as President is to sincerely thank you for being a SDCBA member this year. Each and every one of you contributes to the strength of the SDCBA and the greater San Diego community, and I look forward to all that we will accomplish together. Speaking of accomplishments, ever since I was elected into this role, I’ve been asked by other attorneys, friends, and most often, my husband, “how will you get all of this done?” Well, being the Bar President, a partner at a busy law firm, and a mom to two boys takes a lot. I hope that in this column, I can give you a glimpse of my life and some insights into what this role entails. I’m looking forward to the challenge, and sharing my experiences with all of you. Thank you for the opportunity, and I hope you enjoy this “day in my life!”
Friday, January 8
A DA 8 a.m. Review project files and start preparation of MND proposal for Escondido project.
Mandatory Starbucks run.
Drop off the boys at school.
6 p.m. Family dinner (pizza), and down time with boys.
8 p.m. Adult fun time! 40th birthday party for Dan Greene at The Brickyard batting cages with bonus dodgeball. (My team took 1st place!)
8 SAN DIEGO LAWYER January/February 2016
4:30 p.m. Pick up Sam and Matt; grab snacks at the grocery store; drop off Matt for make up soccer try-outs (thanks El Niño)!
AY IN THE LIFE 10 a.m. - 12 p.m.
Conference call to discuss damage from recent rains to local property with General Counsel. Review and respond to e-mails; catch up on time sheets.
Interview with Lyle Moran at the San Diego Daily Transcript/Daily Journal re: Bar Presidency and plans for 2016 at Allen Matkins office.
12 p.m. - 1:15 p.m. Lunch with a specialty bar president (and what seems to be the majority of the local legal community) at Waters to discuss upcoming collaborations.
3 p.m. Phone interview with Pomerado News while en route back to North County.
2 p.m. Conference call with client and project engineer to discuss project permits.
3:30 p.m. Call with client to discuss strategy for sidewalk improvements and upcoming City Council hearing. January/February 2016 SAN DIEGO LAWYER 9
BY NIELS SCHAUMANN
Legal Education and Its Critics Examining recent criticisms of law school education
he attacks on legal education are almost beginning to feel “normal,” like part of the “new normal” people talk about. Last fall, the New York Times (Sunday, October 25) delivered another editorial broadside against law schools, under the headline “The Law School Debt Crisis.”1 But the paper brought out some new details, and there was, as usual, a kernel of truth in the story, making it worth sifting through to anyone who wants a true Niels Schaumann picture of what’s happening in America’s law schools. The legal education critics are largely the education. There will be more change over same as in 2011; they’ve become a cottage the next years. industry. Even though many other graduate The critics, however, seem to have missed programs have similar problems, they don’t the changes. The latest attack argues that seem to inspire the same anger: About in the face of declining applications, the two years after the attacks on law schools majority of law schools have maintained began, the reporter who wrote the first enrollment by admitting a large number critical articles wrote a similar article about of drastically under-qualified students – so veterinary schools.2 The article said that under-qualified that they cannot succeed the prospects for vet students were dismal, on the bar exam. This might be on-target and pointed out the immense debt load with respect to a few law schools, but the most graduates were struggling to carry majority? The anti-law school rhetoric has (their situation was, if anything, worse than overheated again. that of law students). The result? No outcry, In fact, law schools have not maintained no lawsuits, no cottage industry of critics, their enrollments. Class size is down about and no follow-up articles. Clearly, there’s 30% around the country, which is also (and something about law schools that strikes a not coincidentally) the size of the decline nerve. in applications. But the pool of applicants I have my own list of criticisms of legal has changed, and that has created a small education, some of which I’ve noted in this decline in the LSAT scores of admitted column, so I’m not suggesting that law students. How small? At most law schools, schools are off-limits. Before the crisis, law the decline is roughly the same amount schools were surprisingly disconnected as the “standard error” of the test – three from lawyers. We were overconfident, and points.3 In other words, a person taking the sometimes arrogant. Many of us assumed same test two different days would have that the experiences we had as young different scores; this range of likely scores is lawyers would be repeated forever through called the “standard error.” A score decline the generations. We know better now. within the standard error might or might The profession is changing, and so is legal
not be detectable in the performance of bar-takers, but it’s no basis for predictions of widespread failure. Even the creators of the LSAT responded to last fall’s attacks, taking issue with their prediction of bar failure based on LSAT scores.4 In other words, the situation isn’t nearly as bad as what the critics describe. But to say that the critics are wrong is not to say that all is well. Things could get worse, and we should take the criticisms as a warning of what might be. It seems very unlikely that the majority of American law schools would admit large numbers of unqualified students. But if applications had continued to decline the way they did in the early years of this decade, many law schools would be closing today, and while that’s more ethical and probable than admitting large numbers of students who cannot succeed, it’s still a sobering thought. I don’t think that’s likely, however. Law schools have successfully downsized to sustainable levels, and lately there seems to be more good news than bad. Around the country, law school graduate employment rates are heading upward. Very slowly, employment success will start to nudge application rates upward. As the economy heals, things will improve for lawyers, too. The profession, and law schools, took a heavy blow at the end of the first decade of the new millennium, but I am not ready to count it out. The critics will be negative – it’s what they do – but predictions of imminent disaster, no matter the source, should be taken with a grain of salt, whether they’re about lawyers or law schools. I see the glass half full, not half empty. Niels Schaumann is President and Dean of California Western School of Law.
Editorial, The Law School Debt Crisis, N.Y. TIMES, October 24, 2015 (available at http://www.nytimes.com/2015/10/25/opinion/sunday/the-law-school-debt-crisis.html). David Segal, High Debt and Falling Demand Trap New Vets, N.Y. TIMES, Feb 23, 2013 (available at http://www.nytimes.com/2013/02/24/business/high-debt-and-falling-demand-trap-newveterinarians.html). 3 See Jerry Organ, The Composition of Graduating Classes of Law Students—2013-2016—Part One (available at http://lawprofessors.typepad.com/legalwhiteboard/2014/12/thecomposition-of-graduating-classes-of-law-students-2013-2016-part-one-.html). This raises another question: If three points describes the range of likely LSAT scores for the same person, why do law schools make such a fuss about small differences in LSAT? That’s one of my criticisms, and the short answer is: U.S. News. 4 Why LSAT Scores Should Not Be Used to Label Law Schools and Their Students (available at http://www.lsac.org/docs/default-source/press-releases/lsac-statement-dec-1-final. pdf?sfvrsn=2). 1 2
January/February 2016 SAN DIEGO LAWYER 11
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BY EDWARD McINT YRE
Sex and the Single Lawyer The importance of disclosing personal relationships to clients
arah walked into Macbeth’s office with a tall, blond woman her age. “Macbeth, meet a law school friend, Fiona.” Duncan started to follow. Macbeth shook his head imperceptibly. “Duncan, close the door, would you please.” Macbeth gestured to the conference table in the corner. “Fiona, I’m pleased to meet you. By all means, sit and relax.” Her expression, CARTOON BY GEORGE BREWSTER, JR. however, looked anything but. “I’m told you have an ethics both kids.” question. But that’s all. So you’ll have to Macbeth turned to Fiona. “Do I now have start from the beginning.” a hint about the ethics issue?” Fiona swallowed. “It’s personal. So, you Fiona blushed. “Yes.” She poured a glass see, I represent a 13-year-old. Sean. He’s of water from the carafe on the table. “At locked in Juvie. A really sweet kid. Doesn’t first, it was just working hard together. Then belong there —” friendship. Then it became —” Sarah interrupted, “Why’s he there?” “Personal?” Macbeth added. “Mom’s dead. Lives with his Dad. Has “Yes, and —” learning issues. Gets bullied at school. “Intimate?” Sometimes mercilessly. One day he “Yes.” Fiona paused. “I was wrong. But snapped. Started a fight with his numberwe’re both single. I fell for him. Big time. It’s one tormentor. Beat him badly. Caused real. And mutual. But now what do I do?” injuries. Now they’re both in Juvie. And the “Let’s start with Rule 3-310(B)(2). It bullying continues.” says a lawyer must tell a client in writing Macbeth asked, “Court-appointed?” about a personal relationship with a party “No, his father hired me. He’s worried or witness. Subsection B(3) includes a sick about Sean. A lot went wrong at the personal relationship with another person hearing. I think I can use that to get Sean who would be affected substantially by the out. Or at least a new hearing. But I don’t outcome of the lawyer’s representation.” need to go into all that here.” “Well, Jim’s not a party or witness —” “The ethics issue?” “True, but —” “The other kid — name’s Billy — has Sara interjected. “A win for Sean may an uncle who really cares about him. help his nephew. Even a loss doesn’t Understands Billy’s sick. Needs professional ‘substantially affect’ the uncle. That’s not help. Father’s long gone. Mother just can’t the kind of potential conflict that would, cope —” for example, get you disqualified under Sarah spoke: “I can’t imagine that Juvie 3-310(B)(3).” will do him any good either.” Macbeth nodded. “Likely not, if strictly “That’s precisely what Jim — the uncle — applied. Is that, however, the end of our fears most. He’s a detective. He’s seen what inquiry?” happens to kids whose families abandon “What other rule might apply?” Sarah them. Whom the system abandons.” asked. Sarah again: “If you win for Sean, will that “Consider our duty of loyalty. Not in a help Billy’s case, too?” rule, but the core of the attorney-client “Yes. Ironic, isn’t it. That’s why Jim and I’ve relationship. Sean sees Billy as his chief been working so hard together. It benefits tormentor. Doesn’t he, and his father, have
a right to know his lawyer is involved with Billy’s uncle?” Fiona blushed again. “You mean ‘sleeping with the enemy.’” “A bit harsh. But Sean might see it that way. It’s a fiduciary relationship requiring, as some courts, say ‘uberrima fides’ — the utmost fidelity.” “But if I say something, his dad may fire me. I can help get Sean out of Juvie. I’ve worked hard on this. He trusts me.” “Yet the client has the right to decide who his lawyer will be, no?” “Yes, but —” “If he learns from someone else? Billy, for example. What happens to that trust? To his ability to trust any other lawyer? No matter how good, or committed. Any adult, for that matter?” “So I tell them?” “Yes. In writing. At the same time, make your best case why he should continue to trust you. How committed you are to him. How confident in your position. How strongly you feel about him.” Fiona sighed. “This may be the toughest brief I’ll ever have to write.” Editor’s Note: What can happen when a lawyer doesn’t disclose such a relationship? I suggest Lisa Scottoline’s newest, New York Times bestselling, legal thriller, Corrupted.
Edward McIntyre (firstname.lastname@example.org) 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. January/February 2016 SAN DIEGO LAWYER 13
BY ALIDAD VAKILI
Q & A: Carolyn Harris General Counsel for Ramona Valley Winery Association
his month, I spoke with Carolyn Harris, General Counsel for the Ramona Valley Winery Association (RVWA). Carolyn added the RVWA to her general counsel services practice while establishing her own winery. Knowing how a winery works from the ground up has provided Carolyn with the depth and breadth of experience in this area that makes her a valuable advisor to the RVWA, and to San Diego County’s growing wine industry. How did you find your way to your current position? I went to night school at Southwestern School of Law in downtown Los Angeles while working in the Advanced Programs group of the Rocketdyne Division of Rockwell International, where I learned to speak “rocket science.” Statistics said I’d be taking the bar two or three times, but when I passed on the first try, I treated the next two years as bonus time, so I quit my job, “eloped,” and cruised the Gulf of Mexico and Caribbean on a 42-foot sloop. Upon my return I spent a few years trying to solve a problem for Rockwell in Albuquerque, NM and Maui, HI, then moved to San Diego, taking an in-house position with a virtual reality government and commercial technology company that lurched onto the NASDAQ for a brief time until it mercifully imploded in 2001. I’ve been in private practice ever since, practicing “preventative law” for my clients as their hourly in-house counsel. I perform general counsel services for many small San Diego high-tech companies who are not in the position to have a full-time in-house attorney. As a result of planting a vineyard and building a commercial winery on our property (Chuparosa Vineyards), I also have an active wine law practice that includes an intense pro bono role as the General Counsel of San Diego County’s RVWA. What drives you? It is important to me that each the companies I support are owned and led by persons of the highest integrity. They
choose me to represent them because they are not interested getting anywhere close to the edge of ethical practices. What is one of the biggest challenges you deal with as in-house counsel? Staying current on a broad range of legal and business topics, while leaving time to actually complete many various tasks each day. How do you define outside counsel’s role? I often will recommend outside counsel to clients for their depth and expertise on an issue outside of my own specialties. Outside counsel should be ready to hit the ground running with your complete toolbox of options. Understand that you’re being hired for not only your excellent and timely work, but for your insurance policy, as well. It is that coverage, which is hopefully never used, that allows my clients to “go to the bank” with your advice and work product. What practice areas do you typically find yourself engaged in on a regular basis? Federal contracts (negotiations with the government, prime contractors, or subcontractors), intellectual property, business formation, State and Federal alcohol regulations and compliance, local land use issues, and advocacy for the renaissance and protection of the San Diego County wine industry. Do you have advice for young lawyers who are interested in working in-house? Don’t succumb to being a “jack of all trades; master of none.” Find a practice area (or two or three) that keenly interests you. Work in that field (whether in a
legal capacity or not). Drill down until you are comfortable with the full depth and breadth of the subject matter – and the practical operational aspects of the field. Only then you will find that your perspective and counsel is valued by high quality clients operating in the arena. There is a lot of satisfaction being the “man behind the curtain” when your work results in the success of entities of integrity.
Life Notes Years in practice: 20+ Undergrad: University of Arizona (1979) Law school: Southwestern School of Law (1988) Favorite quote: “The hottest places in hell are reserved for those who in a period of moral crisis maintain their neutrality.” (Interpreted from Dante’s poem Inferno) Favorite book: Atlas Shrugged by Ayn Rand Hobbies: Scuba diving and underwater photography – in warm equatorial waters.
Quick Facts Company: Ramona Valley Winery Association was founded in February 2006. Employees: 0; the association is staffed entirely by volunteers. Legal Department: 1 (me) Focus & Accomplishments: The RVWA is the group that led the effort that resulted in San Diego County’s four-tiered winery ordinance, which has resulted in a significant renaissance and expansion of the industry over the last five years. The RVWA, along with the San Diego County Farm Bureau, worked closely with San Diego County land use staff, Planning Commission, and Board of Supervisors to put into place a foundation of modest regulation, which is fairly rare in California. The intent is to allow the industry to prosper gracefully, make a connection between the San Diego community and those who grow and make our food and beverages – especially those who appreciate an excellent glass of local wine. Alidad Vakili (email@example.com) is an attorney with K&L Gates LLP. January/February 2016 SAN DIEGO LAWYER 15
BY WILLIAM KAMMER
Data, data, everywhere! What are you doing to protect your clients' data?
Discovery has challenged lawyers to develop new skills and procedures and to follow new rules requiring cooperation rather than belligerence. Despite lawyers’ intensive efforts, the technologies that create data may outpace lawyers’ development of the skills necessary to deal with that data. Our initial challenges were to understand hard drives, thumb drives, servers, and e-mail systems. Then cloud services such as Gmail confronted us followed by social media sites such as Facebook, Twitter, and LinkedIn. Now we are warned about the Internet of Things and the evidence that might be found there because of fitness trackers, thermostats, and automotive systems. That would be challenging enough, but the data is now everywhere. Nothing will affect our discovery practices more than the effects of the proliferation of devices that contain electronically stored information (ESI.) Pew Research Center recently reported that 66% of American adults have at least two of these data storehouses: a computer, a mobile phone, a tablet. 36% have all three, and among millennials, the percentage with all three is 51%. The ESI on these various devices may be copies of data stored elsewhere, but some of that data is unique to a particular device. For instance, text messages and many photographs may only exist on a phone. However the story doesn’t end there. Much of this ESI is backed up to additional locations. Apple’s iCloud and equivalent cloud storage locations offer to synchronize all of our ESI and maintain copies at an Internet location. We can also backup our mobile devices to a computer at home or work. At either location, our computer may also backup to a dedicated hard drive. Data, and relevant ESI, can be anywhere and everywhere. The impact of these findings and developments on the duty to collect, preserve, and review relevant ESI is substantial. When we realize that a gigabyte of data amounts to about 50,000 pages, we must acknowledge the need to develop
the knowledge, skills, and resources necessary to manage economically this mass of data. To do less would be a failure of our duty to provide competent representation. This proliferation doesn’t only impact electronic discovery. It also raises cybersecurity issues for our clients’ and our own information. What is the level of protection afforded to our mobile phones and tablets? How are we protecting the information on our laptops? We have probably heard of an incident that occurred last year in San Diego. A lawyer’s laptop was stolen after he left it on the MTS trolley. Though reported the following day to the police, it had not been recovered by the time that his law firm informed its clients that their confidential and personally identifiable information might have been contained on the stolen laptop and may have been compromised. The firm offered its clients identity theft protection and credit monitoring and gave them instructions about further steps they should take to protect themselves. This is not the advice we will ever want to give our clients or the expenses that we will want to incur. But what are we doing to protect the confidentiality of the information on these mobile devices? And what are we prepared to do if and when a laptop, phone or tablet is lost or stolen? These situations and questions are not simply hypothetical. Cybersecurity discussions are frequent today. One report stated that 80% of the country’s largest law firms had been hacked. Another reported that employee error was the leading cause of data breaches. Law firms are evaluating and purchasing cybersecurity insurance to cover some of these risks. Firms are also training their attorneys and employees in order to minimize risk and to protect confidential client and propriety information. In this new year, we should ask ourselves if we are taking all necessary and appropriate actions? William Kammer (firstname.lastname@example.org) is a partner with Solomon Ward Seidenwurm & Smith, LLP.
When we realize that a gigabyte of data amounts to about 50,000 pages, we must acknowledge the need to develop the knowledge, skills, and resources necessary to manage economically this mass of data. January/February 2016 SAN DIEGO LAWYER 17
BY JEREMY EVANS
Financial Advice for the Legally Sound Dealing with law school debt? You may find this information useful
hether you are a new, experienced, or seasoned attorney, law school debt is an issue that has likely crossed your mind. Some may have had well-earned “full-ride” scholarships, but most graduates have some form of debt from law school. How we deal with that debt determines our present and future. First, we must understand and know how to use the programs, institutions, and people that are available to help manage our law school and undergrad student loans. Insights on a few programs follows.
Government Loan Programs “I know attorneys who are concerned with student loans and overwhelmed with the number of different repayment options (e.g., Income Based Repayment). Attorneys are opting into these programs and really do not understand the full magnitude of how they work. Working with attorneys, we help them not only review their loans, but also build strategies around their finances as a whole. I have been told by clients that after working with us they feel more confident with their loans and do not feel the same burden or anxiety with their debt.” – Charline Gnangbé, MBA, Financial Representative, WestPac Wealth Partners, Summit Wealth Management Income-Based Repayment Plans The Student Aid website1 states: “If your outstanding federal student loan debt is higher than your annual income or if it represents a significant portion of your annual income, you may want to repay your federal student loans under an income-
driven repayment plan. Most federal student loans are eligible for at least one income-driven repayment plan. Income-driven repayment plans are designed to make your student loan debt more manageable by reducing your monthly payment amount. If you need to make lower monthly payments, one of the three following income-driven plans may be right for you: • Income-Based Repayment Plan (IBR Plan) • Pay As You Earn Repayment Plan (Pay As You Earn Plan) • Income-Contingent Repayment Plan (ICR Plan)”
are tax-exempt under Section 501(c)(3) of the Internal Revenue Code • Other types of not-for-profit organizations that provide certain types of qualifying public services • Serving in a full-time AmeriCorps or Peace Corps position also counts as qualifying employment for the PSLF Program.” You may also combine employment hours. For example, if you work for 10 hours at one non-profit, and 20 hours at another non-profit, etc., you may qualify. Teachers may also qualify under this program.
Public Service Loan Forgiveness Program The Student Aid website2 states: “If you are employed by a government or not-forprofit organization, you may be able to receive loan forgiveness under the Public Service Loan Forgiveness Program. The Public Service Loan Forgiveness (PSLF) Program forgives the remaining balance on your Direct Loans after you have made 120 [10 years of payments, 12 per year] qualifying monthly payments under a qualifying repayment plan while working full-time for a qualifying employer. What is qualifying employment? Qualifying employment for the PSLF Program is not about the specific job that you do for your employer. Rather, it is about who your employer is. Employment with the following types of organizations qualifies for PSLF: • Government organizations at any level (federal, state, local, or tribal) • Not-for-profit organizations that
New Borrowers: William D. Ford Direct Loan Program3 The federal government will no longer give subsidies to private lending institutions for federally backed loans. Borrowers of new loans starting in 2014 will qualify to make payments based on 10 percent of their discretionary income. New borrowers would also be eligible for student loan forgiveness after 20 years instead of 25 on qualifying payments. Money will be used to fund poor and minority students and increase college funding.4
Government Institutions You may want to look into or contact the following entities for guidance: • The U.S. Department of Education's office of Federal Student Aid provides grants, loans, and workstudy funds for college or career school.5
Continue on page 43 https://studentaid.ed.gov/sa/repay-loans/understand/plans/income-driven https://studentaid.ed.gov/sa/repay-loans/forgiveness-cancellation/public-service 3 http://www2.ed.gov/programs/wdffdl/index.html 1
http://www.studentdebtrelief.us/forgiveness/obama-student-loan-forgiveness/ https://studentaid.ed.gov/sa/about January/February 2016 SAN DIEGO LAWYER 19
CAREER PATHWAYS | Career Development Series
San Diego County High School Mock Trial Competition:
IT ALL STARTS HERE A former high school student and long-time attorney coach reflect on how the San Diego County Mock Trial Competition creates a path to the profession
THE STUDENT By Troy Rayder
n the fall of 2009, I was a sophomore at Scripps Ranch High School here in San Diego struggling to find a place, a voice, and a path. My mom is an attorney, and I knew that career could interest me, but I had no idea if being a lawyer was what I was looking for. That is until I saw a flyer that fall advertising something called mock trial, and I decided to check it out. Mock trial is an activity where students pose as attorneys and witnesses to present a fake trial, a case that you spend most of the academic year refining and practicing in preparation for competition. You go through all the motions a real attorney would in trial, though with simplified fact patterns and limited objections. I was fascinated by the audition content, which required making an argument about expectation to right to privacy. I decided to try out for an attorney role, a role I received. The first step to putting on a fake trial is to learn how real trials work. The older members on the team and our attorney coach, Chris Todd, taught us the format of trials and how to write opening statements, direct examinations, cross examinations, and closing arguments. A natural resource for me was my mom who had participated in law school mock trial at the University of San Diego. She became so engaged with mock trial again that the very next year, she agreed to help coach the team. She remains a coach at Scripps Ranch High School to this day. All of our work and time spent learning about the law was in preparation for the competition in February where high school mock trial teams from all over San Diego County would compete against one another in the Hall of Justice downtown. September to February may seem like a long time to prepare a fake trial, but given that we were a high school club, we could often only meet once a week at lunch. At long last, the fateful week in February
20 SAN DIEGO LAWYER January/February 2016
arrived. My team arrived at the Hall of Justice on a Tuesday evening and funneled through security along with a bunch of other short high schoolers in ill-fitting suits. As a high school student, I was about to have the opportunity only real lawyers have: to stand up in a real courtroom in front of a real judge and argue a case. After that first year, experiencing the exhilaration of arguing your case against opposing counsel in front of a judge, I was hopelessly hooked on the activity. I came back the following two years with high hopes for successful seasons and a passion to hone the skills I had learned the year before. In 2011, I earned the “Best Defense Attorney” Award. In 2012, we took home a second place overall finish, falling by a small margin to the defending champion. This little foray into trial advocacy made me feel like being a trial lawyer was the path for me. I had found my
“This little foray into trial advocacy made me feel like being a trial lawyer was the path for me. I had found my voice at last.”
Hon. Garry Haehnle and Troy Rayder
voice at last. That feeling was only solidified in college. I chose to attend college in Los Angeles at the University of Southern California and joined that mock trial program in 2013. But I quickly found that college mock trial is very different from high school mock trial. While we built upon what I had learned previously about question formation and speech structure, we also learned about criminal and civil procedure, and extensively studied each of the Federal Rules of Evidence. In college mock trial, we could make any arguments based on the Federal Rules of Evidence, unlike in high school, which had a very limited set of objections. I was essentially taking a law school-level evidence course through my coaches at USC. The work load substantially increased, and I found that most of my weekends were spent scrimmaging, refining legal arguments, and evaluating presentational style. Trial advocacy became an art to me. No longer a club, but a way of life with a competitive drive for perfection I had never experienced before, and one that has opened doors unlike anything else. It is thanks to mock trial that I was able to work at the United States Attorney’s Office for two summers in Los Angeles as an undergraduate. I hope that legal professionals everywhere appreciate the students who have participated in mock trial at some stage. Consider how these students spend countless hours outside of class and their studies to learn about trial advocacy and public speaking. Consider their demonstrated dedication to the law from an early age. Consider them for jobs if you have the opportunity to hire a mock trial student. Mock trial, from high school to college and onward, has given me a voice, a path, and a passion. Troy Rayder is a student at the University of Southern California.
CAREER PATHWAYS | Career Development Series
By Victor Torres
he power of youth is unbounded curiosity and enthusiasm. Every year that curiosity and enthusiasm is channeled into the teams from county high schools by parents, teachers and coaches to march through the halls of the courthouse in a display of talent and skill, and the art of litigation. The San Diego County Mock Trial Competition is a chance for high school students from all over the county to prepare a criminal case created by the Constitutional Law Foundation for presentation before actual judges in a real courtroom. The first year of the competition I volunteered to be an attorney scorer, not really knowing what to expect. I was awestruck by the display of maturity, knowledge of law, and grasp on the nuts and bolts of litigation. I kept thinking “These students, kids really, are better lawyers than some of my colleagues!” At the trial, students introduced their teachers and coaches. The moment I turned in my score sheets that first night I knew I had to find a way to be involved with these students. So I volunteered to coach the following year, and have coached ever since. My law school participation in a couple mock trials inspired me to be a litigator. As a lawyer I have always cherished any opportunity to connect and share my experiences with students from elementary through high school, college and law school. As a youth sports coach when my children were younger I always enjoyed being part of the action instead of just a spectator. Coaching mock trial teams at Scripps Ranch, Dehesa Charter and St. Augustine High have been some of the most rewarding experiences of my career. Teaching a young person how to do a closing argument, or conduct a pretrial motion, or to perform their best as a witness is always challenging. Sometimes coaches are faced with a young person
“Sometimes a student is too fearful of embarrassment or failure to overcome their shyness or fear. When that team member gives a passionate and masterful performance at crunch time, it makes all the effort worthwhile.”
Victor Torres and Bethlehem Lema who can barely put two words together. Or a student who is too fearful of embarrassment or failure to overcome their shyness or fear. When that team member gives a passionate and masterful performance at crunch time, it makes all the effort worthwhile. My son, Rudy is now a senior at Saints. He rose from the role of mascot to team member. Christina was a junior when she made a pretrial motion argument to a very experienced judge who grilled her incessantly, nearly to the point of tears. The following year, she came back as a senior in the same role and knocked the ball out of the park with a nearly flawless performance. Anna was a student who
suffered anxiety attacks that left her literally sick to her stomach and unable to perform her role her junior year. No matter what encouragement her coaches gave her, she was unable to move forward. The following year (with new coaches), she gave a stellar performance in the role of attorney. Even though I wasn’t her coach any longer she was so excited that she gave me the biggest hug and told me all about it. I could give many more examples of a student who struggled with their preparation or performance but who came through in the clutch for their team and themselves, and left all of us wondering “Where has that person been all this time?” Many times I am asked about the time commitment. First, here’s the good news: you won’t be alone. I have been blessed with many co-coaches through the years that shared the work, and sometimes carried the burden for each other. The actual time commitment depends on many factors and can be as little as one to two hours per week, depending on the availability of the students and coaches. Some students go on to college and take up their interest in the law. Others go into other fields and have their own successes. But the experience of mock trial in high school always enriches their lives and gives them a positive insight into the legal field that is often missing in popular culture and social media. I volunteered to coach out of a desire to lead by giving of myself, and hopefully imparting some wisdom to high school students. The opposite has proved to be true: I have learned more wisdom from the students I have coached than they could ever learn from me. And that is what keeps me coming back year after year. I know you would enjoy it as much as I do and wonder “Why didn’t I do this before?” Victor Torres (email@example.com) is a solo practitioner.
Special thanks to the 2015-2016 San Diego County High School Mock Trial Committee for all of their work: Hon. David Bartick, Alex Calero, Hon. Yvonne Campos, Solomon Chang, Michelle Chavez, SJ Kalian, Amy Kimpel, James Koerber, David Leshner, Ellen Miller-Sharp, Julie Myres, Hon. Linda Quinn, Julie Schwartz
Volunteer to score this year's competition! Visit http://sdmocktrial.org to sign up. January/February 2016 SAN DIEGO LAWYER 21
Emerging LAWYERS Attorneys in their first few years of practice can follow two concurrent paths to get involved in the SDCBA. All routes lead to relationship-building.
FORUM LINE If you have been on the attorney journey for less than five full years, you can opt into the Forum for Emerging Lawyers (Forum) at no charge.
COMMUNITY COURTYARD Create a community and find guidance by meeting attorneys in your same area of practice or explore other areas you are interested in pursuing
SDCBAFORUM@LISTS.MEMBERCENTRAL.COM Share resources and ask questions; everyone is still learning and in the same boat Members attended Forum events last year
GIVE BACK BRIDGE Serve the community with projects developed by Forum members
Areas of practice represented by SDCBA Sections
ONLINE TERMINAL Section listserves and fileshares let you share resources and ask questions of peers at all levels of practice
5,600+ Listserve messages sent last year
Attend Bar-wide signature events and education programs to meet all kinds of SDCBA members
CONNECTION QUARTER Connect in a community comprised of your peers at your experience level
Sections available to join
LEADERSHIP LANE Section involvement is a great way to jump-start becoming an SDCBA leader
NETWORK STATION Take advantage of networking events designed just for new attorneys Programs geared specifically toward newer attorneys
SECTION LINE Get on board by joining one or more of the SDCBA’s Sections. Section membership is free of charge and can be utilized as a compliment to Forum membership or as an alternate route to joining the Forum.
HIGHER HEIGHTS Gain experience with and help to plan continuing legal education and a variety of programming
Educational programs presented by the SDCBA and its Sections in 2015
RE-ROUTE Try out different areas of practice – all Sections are free!
January/February 2016 SAN DIEGO LAWYER 23
CAREER PATHWAYS | Career Development Series
THE LAW CLERK:
AN ALTERNATE CAREER Why choose a judicial clerkship before settling into private practice? Why elect it as a long-term career? To understand this professional option, former and current clerks – career and term1 – shared their stories. By Edward McIntyre
To Satisfy Her ‘Inner Geek.’ “Why? It satisfied my inner geek. I got to hang out with judges, read and write? What could be better than that? It was fun.” That’s how Nancy Berner, now a Paul Plevin litigator, answered the question. She spent a law school semester as an extern for District Judge Charles Breyer – yes, brother of the justice with the same surname – at the San Francisco federal court. She found the experience so exciting she took a research attorney position at the San Francisco superior court after graduating from USF. “Then, the position was only for a year.” Had the job been permanent, she’d likely still be there. Nancy Berner
The difference between Nancy’s federalcourt experience and her superior-court
position was one of “pace.” Judge Breyer made a point to teach his externs about the law. Superior court research attorneys had to keep moving; “to produce quality work, fast.” “A bit like trying to keep up with the popcorn machine at a movie theatre. Keep catching it as it jumps out.” Nancy’s clerkship not only provided an additional resumé credential when time came to enter private practice, but what Judge Breyer and the superior court judges taught her informs how she practices today. She saw first-hand how judges appreciate plain writing that “cuts to the heart of the matter.” Lawyers know their cases better than anyone; they forget, however, that, for the judge, “it’s all brand new.” Clear, concise exposition is critical, because judges “simply don’t have time to wade through unnecessary detail.” Would she recommend the clerkship path? “It’s perfect for the right person. Someone who likes the law for its own sake. Someone
who’s fascinated with it; and who doesn’t mind being in the background.” The Committed Careerist. Anne Kammer, a career clerk with District Judge Michael Anello followed a different path. Pursuing a Ph.D. in political science, she instead entered USD Anne Kammer law school. While there, she served as an extern for Justice Richard Huffman at the Court of Appeal; as a former doctoral candidate, she loved the research and writing. When graduation neared, her father-in-law, Bill Kammer – Solomon Ward partner and former clerk to Ninth Circuit Senior Judge J. Clifford Wallace – suggested she consider a clerkship. Anne did, and has never looked back. She first clerked for District Judge Tucker
Federal “term” clerkships typically last a year or two before the lawyer moves on to, or returns to, private or public practice. Career clerks serve long-term with a judge or, even, more than one.
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CAREER PATHWAYS | Career Development Series
Melançon, in the Western District of Louisiana in Lafayette. He involved her heavily in his criminal trials, both bench and jury, while his long-time career clerk took the time to mentor her. That experience sold her on clerking. Returning to San Diego, Anne became Magistrate Judge Nita Stormes’ law clerk, eventually accepting a permanent, position. When Judge Anello was appointed to the district court, Anne joined his chambers as his career clerk. Why is she so sold on clerking? “I’m learning all the time. There’s always something new – a new area of law; something new in the federal rules. As a former Ph.D. student, I love the research, the writing. I’m not an advocate.” Anne also enjoys working with the two term clerks in Judge Anello’s chambers and also the opportunity to mentor them. Is clerking a path she would recommend? “For anyone whose goal is litigation, definitely yes. Not only do you get a year of research and writing – that never hurts – but you get to see how law is practiced. In the courtroom.” Judge Anello’s clerks attend court sessions whenever he conducts a hearing or presides over a trial. Afterward, in chambers, he discusses with them what they saw; what they thought was good; what not. How better could a young triallawyer-to-be learn. The Accidental Clerk. Danielle Blackhall’s first trial as a litigator at Paul Plevin lasted nine weeks. “I was very comfortable” both in the courtroom and in trial. She attributes Danielle Blackhall that comfort to her two years clerking for Judge Anello. Danielle’s path was circumstance-driven. During spring 2007, she served as an extern for Magistrate Judge Stormes; there, she met Anne Kammer. Graduating from law school at USD, Danielle went into private practice, joining Baker McKenzie’s San Diego office as a litigation associate. Then in 2010, Danielle suddenly found herself a “refugee from ‘Big Law.’” Judge
Anello, however, had just reorganized his chamber’s staff to have two term clerks in addition to a career clerk. Anne Kammer, then Judge Anello’s career clerk, encouraged Danielle to apply for the newly created term-clerk position. It worked. She served Judge Anello from 2010 to 2012, and loved it. “Clerking’s very different from being a lawyer. Your job is to be objective. You’re not an advocate.” Judge Anello instilled in his clerks that “he didn’t care how long it takes; he wanted it ‘right.’” That gave her the opportunity “really to dig into issues.
I’m learning all the time. There’s always something new … To understand the nuances.” The work was challenging especially when working on a motion for summary judgment or judgment on the pleadings. Within chambers, Danielle was independently responsible for her cases; she ran them herself and worked directly with Judge Anello. The other law clerks had their own cases and did the same. That created the opportunity to spend time in the courtroom whenever something significant – motion hearing or trial – happened in one of her cases. Now back in private practice, Danielle finds the experience different. Litigation is a “team environment” with layered responsibility. For anyone interested in litigation, Danielle sees a law clerk position as “indispensible.” She had the opportunity to run a fourweek jury trial while clerking; she saw fine advocacy; some “great lawyers and some not-so-great.” She also had access to Judge Anello as a mentor. After each appearance
he would ask: “What did you see in the courtroom?” But it was not all research and writing. One year Judge Anello asked Danielle to organize the United States Marine Corps birthday celebration that he and Magistrate Judge William Gallo sponsor each year. She watched as Judge Gallo cut the cake with his ceremonial sword. Serving as a clerk for a Magistrate Judge presented a different, yet equally valuable, experience. In Judge Stormes’ chambers, Danielle saw lawyers more often and in the more informal setting of the Early Neutral Evaluation. She also saw first-hand that, while many cases did not settle during the ENE, the process facilitated resolution. If a permanent position had been available, Danielle “would have considered staying.” When she returned to private practice, she found that her extern and her clerkship credentials were an invaluable, albeit intangible, benefit in her job search. Today, mentoring USD law students, Danielle urges them to keep their “doors open” to pursuing a clerkship opportunity. A Different Path. From observing lawyers in District Judge Marilyn Huff’s courtroom, Koree Blyleven learned the importance of knowing how and when “to pick Koree Blyleven your battles. Not every hill is worth dying on. Sometimes it only undermines your credibility. It’s okay to concede – especially when you’re wrong.” Koree spent her first 10 months after Duke law school as a Jones Day associate. Then, in 2014-2015 – with her firm’s blessing – she served as Judge Huff’s clerk. As planned, she has returned to her firm as a labor and employment lawyer. But Koree’s introduction to clerkships began years before. While a Stanford undergraduate, she served as an extern for District Judge Irma Gonzalez. That experience convinced her not only to go to law school, but also to pursue a federal clerkship. She returned to Judge Gonzalez’ chambers while in law school. During that second externship, 14 pending January/February 2016 SAN DIEGO LAWYER 25
CAREER PATHWAYS | Career Development Series
motions collectively raised “every procedural question under the sun.” Working on them that summer, fresh from her Civil Procedure course, demonstrated “how all the elements, the procedural tools, fit into the bigger picture.” Serving as one of Judge Huff’s three clerks, Koree was “lucky to work on a couple of employment cases,” the area that interests her most: “it’s about people’s stories.” She saw how the clerkship perspective differs from the advocate’s; “you have to see both sides” – an important lesson to carry away as an advocate in private practice. Another lesson: the importance of the Local Rules. A judge’s clerk could confront five or more filings a day. A lawyer’s failure to follow the rules may suggest a lack of professionalism and diligence that can carry over to the chamber’s appreciation of the underlying substantive work. During her first ten months at Jones Day, Koree worked on a pro bono civil rights case – a unique experience that she was able to bring to her clerkship. In addition, even her brief stint in a civil trial practice caused her, while clerking, to consider how actions taken in chambers (e.g., a scheduling order) might affect the lawyers and how it would “play out on the ground.” Judge Huff was involved in the district’s patent pilot program; as a result, during her first month as a clerk, Koree assisted on a jury patent trial. Not only did she “thoroughly enjoy” the patent work, but it now gives her “a greater appreciation for what many lawyers
in her own firm do, especially here in San Diego.” Recommend to others? “Absolutely!” Because of “the volume of exposure. You see so much. At court, there are so many different types of cases.” The relationship among her co-clerks was “collaborative. We were together all the time. It was a great experience.” Koree’s fellow clerks pursued varied post-clerkship careers. One, like Koree, had been an associate at a firm for a year before joining Judge Huff; he has returned to his firm. The other now clerks for a judge on the Ninth Circuit. What Do We Learn? One common thread from these conversations: each enthusiastically praised her experience. Nancy and Danielle would have considered clerking a long-term option. Anne has found “the perfect career.” Only two followed the “traditional” – law school to clerkship – path. Danielle had two years litigation experience before clerking for Judge Anello; Koree, almost a year with her firm, before joining Judge Huff. Finally, not only did the law clerk experience – especially mentoring by the judges – shape how these lawyers practice today, but their firms apparently recognized that a judicial clerkship is an invaluable asset in the arsenal of a young trial lawyer. Edward McIntyre (firstname.lastname@example.org) is an attorney at law and Co-Editor of San Diego Lawyer.
Experience. Tenacity. Judgment. Kathryn Karcher, for your client’s appeal.
karcherappeals.com | 619.565.4755 Certified Appellate Specialist, Board of Legal Specialization, State Bar of California
26 SAN DIEGO LAWYER January/February 2016
CAREER PATHWAYS | Career Development Series
THE VALUE OF THE CLERKSHIP A CONVERSATION WITH A FORMER SUPREME COURT CLERK By Danwill Schwender
“To the extent young lawyers are reading this, a clerkship is such a great opportunity and may not be pushed by law schools or appreciated by employers as much as it should. It is such a great learning opportunity and experience that everyone should pursue.” – Professor Michael Ramsey
his past year saw a fair number of highly publicized cases resolved by the U.S. Supreme Court, such as Obergefell v. Hodges (same-sex marriage), King v. Burwell (health care subsidies), Arizona State Legislature v. Arizona Independent Redistricting Commission (voter redistricting), and Walker v. Texas Division, Sons of Confederate Veterans (free speech and the Confederate Flag). Many of the Court’s opinions included the notoriously colorful language of Justice Antonin Scalia. The San Diego County Bar Association is fortunate to have a number of former Supreme Court clerks as members. One of them happens to have clerked for Justice Scalia and recently offered some insight into his time with the Court. Michael Ramsey currently holds the position of the Hugh and Hazel Darling Foundation Professor of Law and Director of the International & Comparative Law Programs at the University of San Diego School of Law. He teaches and writes about constitutional law, foreign relations law and international business law. After obtaining his J.D. in 1989 from Stanford University, Ramsey spent a year as a judicial law clerk for Hon. J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit. This led him to a coveted one-year clerkship for Hon. Antonin Scalia of the U.S. Supreme Court. He performed similar tasks for both justices, which, in basic terms, meant getting the judges up to speed for oral argument, conducting supplemental research on issues before the courts, and assisting with drafting opinions. Professor Ramsey graciously discussed his clerkship experiences and their effect on his career with me recently. A summary of the conversation follows.
The Clerkships Ramsey humbly and respectfully exclaimed that the best part of his clerkships was the chance to work closely with very capable lawyers and judges. He felt very fortunate for the amazing opportunity to be mentored by them and to learn how they tackled legal issues. Predictably, he explained that there was no bad part of the jobs – other than the long hours with the Supreme Court. Having obtained the clerkships straight out of law school, Ramsey was surprised that the judges thought he had something meaningful to say on the issues. He noted that his opinions didn’t necessarily change their minds, but they genuinely cared and listened to his thoughts. The judges interacted with their clerks in very different ways. Judge Wallace communicated with his clerks mostly in writing and so Ramsey’s input on issues primarily came in the form of written memos and the like. Justice Scalia, on the other hand, loved talking about the cases and a large part of his clerk’s job entailed simply talking about the issues. Although neither judge told him to write a certain way, Ramsey explained that his writing style did change a bit as he developed a sense for what each particular judge valued and preferred from reading their opinions and noting their interactions with him and their mode of thinking. Thus, Ramsey would try to adapt his writing to their apparent preferences and expectations, as any writer would do for their particular audience.
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CAREER PATHWAYS | Career Development Series
Ramsey chose not to comment on who drafts the oft publicized “wisecracks” of Justice Scalia’s opinions, but intimated that if you read his opinions, you will get a sense of a consistent style of writing. The continuity is Justice Scalia. Ramsey said this is true of most judges, including Judge Wallace, but it is more apparent when you read Scalia’s opinions.
because they work so closely together. This camaraderie transcends each particular clerkship year. Justice Scalia hosts a reunion every year in DC at the Supreme Court for all of his former clerks. Ramsey says the reunions are a lot of fun and he expects the other justices do it too.
Ramsey also learned a great deal from the practitioners who appeared before the courts from their writings and oral arguments. Although his clerkship with the Supreme Court occurred before the emergence of the Supreme Court Bar, which now has regular litigators before the Court. Nonetheless, Ramsey noted there were a number of “regulars” who stood out, especially the lawyers from the Solicitor General’s office. He particularly remembers the amazing work done by Kenneth Starr, then the Solicitor General, and by nowChief Justice John Roberts, who was then serving as Deputy Solicitor General. Ramsey speculated that the government lawyers probably did such great work because they were so used to it and “people are good at what they do a lot.” Harvard Law Professor Laurence Tribe also had a big case while Ramsey clerked. Ramsey highlighted that he was outstanding and also showed him that professors can really attribute a lot and be in the big leagues too.
After his clerkships, Ramsey practiced international business law in San Diego with a notable law firm, which was the career path he sought before his work with the courts. In fact, he had the job set up before his clerkships. In that sense, his clerkships did not affect his career path much. He explained that that was not the case for everyone and the clerkships certainly open a lot of doors in Washington, DC and similar areas for clerks.
“You never know who you will meet when you clerk,” Ramsey quipped. It turns out that one of his co-clerks with Justice Scalia was Professor Lawrence Lessig, who recently had a brief run for U.S. President. With the long hours and hefty issues tackled during a clerkship, he added that the clerks build a lot of camaraderie
His time with the courts, however, strengthened his interest in constitutional law and the role of the courts in American democracy, which encouraged him to pursue teaching. In terms of his teaching career, Ramsey explained that obtaining a law school faculty position is very tough without a clerkship. He put it bluntly: “Without the clerkship, I would never be where I currently am.” With a base of constitutional law gained from his time with the courts and his practice in international business law, it comes as no surprise that Ramsey focuses his academic scholarship on constitutional law, international law, and the U.S. Supreme Court. He has published numerous articles in leading law reviews and has authored or co-authored four books, including The Constitution’s Text in Foreign Affairs (Harvard University Press 2007).
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Without the clerkship, I would never be where I currently am. When asked how these highly respected judges swayed his views on issues, Ramsey chimed that you can’t help but be influenced by people of that stature. Although his views on the role of the Court and the types of issues it should be deciding was already in line with Justice Scalia’s thinking, the Justice certainly reinforced these beliefs. For example, he noted that treaty law and foreign relations require understanding how international and domestic laws interact. With purely domestic issues, he agrees with Justice Scalia that international law and domestic law should be separate. He added that this should be the same for all justice systems, not just U.S. law. Passing on Legal Skills to Law Students Prof. Ramsey expressed that the clerkships were very much a learning experience for him. Luckily, the two judges also handled their clerks and their opinions in different ways. From Judge Wallace, Ramsey learned how to write very precisely and how to use writing to communicate succinctly. Legal memoranda are not research papers, he explained. They need to be stated shortly and sometimes are prepared under extreme time pressure. He tries to teach this to his students by having them write shorter pieces that are not exams. Justice Scalia helped to hone Ramsey’s oral communications in a relatively formal atmosphere. He reminisced that he generally avoided talking in class during law school, preferring to rely on his written exams, but that “did not fly with Justice Scalia” or the practice of law. Lawyers need
CAREER PATHWAYS | Career Development Series
to be able to communicate orally and Justice Scalia forced him to become a more orally-oriented person. He credits Justice Scalia the most for teaching him how to speak with confidence, succinctness, and comfort. It is these attributes Ramsey attempts to impart on his students.
for a better clerk and serve your judge better. I kind of wish I had done it this way.” He also noted that judges typically do not hire people who have been in practice a long time, but one to a couple of years of practice would likely make your experience richer.
Advice for Young Lawyers Applying for Clerkships
Despite the seeming political divisiveness on the Supreme Court, it is Ramsey’s general feeling that the details of an applicant’s political outlook do not matter to a judge because a clerk only has to explain the law and apply the facts. At the same time, he professed that judges may want clerks with similar philosophical outlooks, such as judicial restraint. For example, judges who believe in judicial restraint probably do not want a clerk who thinks judges should run the system. Judges will not want to deal with disagreements on the fundamentals.
In response to what advice he had for young lawyers thinking about applying for a judicial clerkship, he quickly said, “Do it! It is such a great experience. Don’t worry about the particular judge or court because any exposure to the judicial side of the legal process is incredibly important. And, there isn’t one particular place you need to do it.” He commented that it is more common today, than when he clerked, for lawyers to have practiced a year or so before clerking. He also thought this is probably a better way to do it because “a little experience with real life law practice will maybe make
good career move if the young lawyer is looking for a career practicing law with a firm. He repeated that a clerkship is “a great, valuable experience for your future legal career. Whether or not it opens doors, it gives you a great legal education — regardless of what kind of practice or town you practice in. Of course, many firms probably do care about having a clerkship and applicants should be proud to have the CV line too.” After such enthusiastic praise for his judges and his clerkship experiences, the question arose: “If Justice Scalia called you today for a clerkship, would you accept?” To which, he happily and with no hesitation exclaimed: “Absolutely. It would be crazy not to. If any Justice called me I would accept, just in case any are listening.” Danwill Schwender (email@example.com) is an attorney with Foldenauer Law Group, APLC.
In a smaller legal community like San Diego, Ramsey thinks clerking is still a
January/February 2016 SAN DIEGO LAWYER 29
CAREER PATHWAYS | Career Development Series
MODERN MEDIATION Local mediators and legal professionals discuss how mediation has evolved in modern practice By Ray Huard
egal dramas on television are abundant – showing the gritty, intensity of a vigorous courtroom battle. Two business partners have a falling out, they hire lawyers, the lawyers fight it out in a court trial. Outside the bright lights of Hollywood, in the “real” world of law practice, mediation is much more commonplace Going to trial is risky business, according to retired San Diego Superior Court Judge and JAMS mediator Richard Haden. “No experienced trial attorney will ever tell a client this is a slam dunk and we will 100 percent win. There are all kinds of things that can happen in any trial,” said Haden, who served on the bench for 21 years. “You can think you’ve got a pretty good case going there and be handed your head.” Former Bar Association President Richard Huver – a veteran litigator who specialized in personal injury cases – said that certainly was true with his practice. As a litigator for nearly 30 years, Huver said he often turned to mediation to resolve cases. “If you have 100 cases, 95 of them are going Hon. Richard Haden (Ret.) to settle,” Huver said. “People have to have a justification and a reason to make a decision.” Often, they get that through mediation, said Huver, who is closing his practice to become a mediator with West Coast Resolution Group. “It gives the clients an opportunity to really be in a safe venue with complete confidentiality to say whatever they want to say,” Huver said. “I’ve had cases where clients have completely broken down. Just that process of being able to release that in a safe environment with a neutral third party is a way for them to feel they’ve been heard, they’ve been understood and now, when this case resolves, it’s not just a financial resolution but an emotional resolution as well.” Richard Huver Huver said his experience going through
mediation as a litigator and his work as Bar Association president prompted his career change. “When you’re President of the County Bar, you’re dealing with all sorts of viewpoints, different practice areas, and different views of people. In order to get the business of the Bar Association done, you need to develop rapport, you need to build relations, you need to build common ground,” Huver said. “I thought, you know, maybe a better career for me is to look into mediation because, really, what you’re doing is bringing parties together from both sides and finding what really is right in front of them.” As evidenced largely in our community, mediation has become an increasingly attractive career choice for lawyers and retiring judges as more and more litigants are choosing mediation to avoid costly and time-consuming trials. Former Judge Linda Quinn became a mediator with Judicate West Alternate Dispute Resolution about 3 ½ years ago after spending 25 years on the bench. She said she likes the flexibility of mediation. “Being a judge, you’re making decisions and it’s very important to be completely impartial in all aspects of the case,” Quinn said. “In mediation, there’s a lot more freedom to express to the parties what your thoughts are, what you think a better solution is for them because of the experience you’ve had watching what happens in court.” “People from different stages in their careers Hon. Linda Quinn (Ret.) are getting into mediation,” Quinn said. Fifteen or 20 years ago, the field was dominated by retiring judges, she said. “Then, we saw some attorneys who were more advanced in their careers. They just wanted to transition into something out of the practice of law,” Quinn said. “Now, we’re seeing people from different types of practices. I think it’s refreshing to see a bigger diversity of people from different backgrounds and ages coming into mediation.” January/February 2016 SAN DIEGO LAWYER 31
CAREER PATHWAYS | Career Development Series
Haden said that when he entered the field, “There weren’t as many mediators available on a professional basis,” adding, “The profession of mediator/arbitrator – alternative dispute resolution – I’ve seen that grow tremendously in the last 11 years.” Mediation became more prominent in San Diego County in part because of a pilot program started in 2000 in which cases filed in certain civil departments went directly to mediation in an effort to avoid trial, said Bar Association Executive Director Ellen Miller-Sharp, who oversaw the program for the Superior Court. The pilot program ended when state funding petered out, Miller-Sharp said, but “It helped to create this very positive culture of Ellen Miller-Sharp mediation in our county and in the other counties that had also launched the pilot program. “We now know the benefits of mediation, know the benefits of having face-to-face opportunities to communicate early on, and the impacts that will have on a case,” Miller-Sharp said. Quinn, who was on the bench during the pilot program, agreed that “it really changed the legal culture in San Diego.” “In the last 15 years, there’s definitely been a change,” Quinn said. “Now, we get a lot of cases that go to mediation even before litigation.” The advantages of mediation are numerous, said Craig Higgs. Higgs has been working as a mediator since the mid-1980s, starting out by working with the courts on settlement conferences and other matters. About four years ago, Higgs stopped doing any litigation to work full-time as a mediator through his own law practice. “It saves time and money. Most importantly, the outcome is decided by the parties, not by a judge or jury, so the parties and their lawyers have control over the outcome,” Higgs said. Although the cost of bringing a civil case to trial varies widely, he said it far exceeds what someone would pay to settle a case through mediation. “A full-day of mediation before an experienced mediator would probably cost anywhere from $5,000 to $8,000, roughly,”
Higgs said. “That is a fraction of what any case going to trial could cost, and, of course, those (mediation) costs are split by the parties.” Even in a modest civil case, each side can easily spend $10,000 to $100,000 on expert witnesses, Higgs said. On top of that are the attorney’s fees and other court costs. Typically, a case can be resolved through mediation in a day or less. “Sometimes, it takes longer than a single session if it’s determined in the mediation that a particular piece of information needs to be explored, either by deposition or otherwise, and it will be flowed up by a second session, either by phone or in person,” Higgs said. By comparison, a civil trial can easily last for several days or more. Besides saving the money of a court trial, people will sometimes opt for mediation because the outcome they want is something they couldn’t get in court. “For example, once in a while, somebody just wants an acknowledgement on the other side that they did wrong,” Higgs said. A judge can’t force someone to say they’re sorry, but a mediator might be able to negotiate an apology, Higgs said. One of the greatest benefits of mediation is the ability to keep results settled in a case through mediation private. “The court is simply informed of the matter,” Higgs said. “The only time a court would be Craig Higgs involved in that situation would be if one of the parties violated the agreement and the other side decided to take it to court to have it enforced.” In addition to private mediators, San Diego Superior Court maintains a panel of more than100 mediators who hear civil cases referred to them by the court. In 2014, the latest year for which figures are available, 1,851 general civil cases were handled by panel mediators, said Superior Court Judge Jeffrey Barton. “It’s really something that has caught on since the late ‘90s,” Barton said. “It’s a very successful program.” He said about 31 percent of the cases were settled through mediation.
Ripples on the Ethics Pond
By Edward McIntyre
hen it comes to ethical duties in negotiation, the oft-discussed tension is between “puffing” versus outright deception – either affirmative misstatement or willful non-disclosure. “Puffing’s” permissible; probably expected; perhaps ethically required, lest the lawyer give away a client’s confidentially protected “bottom line.” Yet finding a “bright line” between mere puffing and edgy dissembling is tricky – flat out lies are another story, but we all recognize them. The State Bar tried to help with a formal opinion that gave examples of what it considered acceptable negotiation and impermissible misstatements. It’s a “good read;” each of us can amplify on the quoted examples. But an additional ethics consideration is not just the client in the room; not just the moment seized; not just the result achieved, by means fair or foul. Absent unique circumstances, that lawyer will appear again before that magistrate judge, that mediator, that settlement judge, but on behalf of different clients – likely more than once. If the magistrate, mediator, or judge thought the lawyer skirted too close to the line the first time – got “chalk on his or her shoe” – or, worse, crossed it, just for a “favorable” result, what happens when the lawyer shows up with the next client? Or next after that? Has that lawyer’s misguided sense of “loyalty” to one client jeopardized her or his ability credibly to negotiate on behalf of other clients before that same mediator or judge? May require some soul-searching. But if candor has been sacrificed on the pyre of a “great” result, as a mediator or judge might view it, what then? Rule 3-500 (duty of communication) may require the lawyer honestly to tell the next client that the lawyer cannot represent the client in a particular negotiation; the prospect of appearing before a mediator or judge who views a lawyer as less than candid is certainly a “significant development” in the representation that we have to discuss with a client. Not a fun conversation. Ripples could rock the boat. In short, carpe diem may not be the best rule of thumb in negotiation; conduct has consequences.
Edward McIntyre (edwardmcintyre1789@gmail. com) is an attorney at law and Co-Editor of San Diego Lawyer. January/February 2016 SAN DIEGO LAWYER 33
CAREER PATHWAYS | Career Development Series
Mediation is most beneficial in complex cases, when the mediator can take the time to get to know the parties involved and the issues, Barton said but “it’s done in all cases, from small fender benders all the way up.”
In 2014, 1,851 general civil cases were handled by panel mediators. Panel mediators agree to charge fees of $150 per hour for the first two hours of mediation in civil cases where the amount Hon. Jeffrey Barton of money at stake is less than $25,000. That’s often significantly less than the mediators would charge as their normal fee, Barton said. For cases involving claims of $25,000 or more, the fees are $250 per hour for the first two hours.
is pleased to announce that Bob Brewer has joined our firm as Of Counsel to our litigation department.
If the mediation takes more than two hours, the fees revert to the mediators’ normal rate, Barton said. Mediators have different styles. Higgs said his preference is to bring the opposing parties and their lawyers together in a joint caucus at the start. “Lawyers are often wary about doing that because they’re afraid it can get out of control,” Higgs said. “Mediation is a negotiation. Negotiations are best when there is at least some face-to-face discussion. In a negotiation, you have to convince the other side. Not doing a joint caucus is, in my view, relinquishing an opportunity and leaving it all to the mediator.” There are exceptions, in cases where emotions run high, Higgs said, where “the parties just can’t be in a room together.” Huver said his preference is to keep the parties in separate rooms while he shuttles between the two, but he said he’ll do whatever the lawyers for both parties prefer. “It’s their mediation, not mine,” Huver
said. Either way works, he said, but when everyone is together, “one side or the other may perceive they have more power or less power.” With the parties separated, “It’s just easier to be candid,” Huver said. Haden said he finds it helpful in complex cases involving several parties to get everyone together in the same room, but, “At some point you need to break into separate rooms.” “Generally, where tempers may flare and people are already familiar with the other side’s positions, I don’t use joint sessions unless the lawyers want it,” Haden said. “It’s their case.” Editor’s Note: Keep an eye out for future stories about mediation and trends in the practice. Ray Huard is a freelance journalist.
Save the Date
ANNUAL JUDICIAL RECEPTION Wednesday, March 9 5:30 p.m. to 7:30 p.m. Bar Center Third Floor Terrace 401 W. A Street San Diego, CA 92101
750 B Street, Ste. 2100 San Diego, CA 92101 619.685.3003
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Check in on third floor. RSVP: www.sdcba.org/judicialreception2016
B So Much More to Give These attorneys found fulfillment outside of the legal volunteer "box" By Teresa Warren
Top photo: Vickie Turner with STEM program students Bottom photo: Dennis Wickham (middle) with fellow volunteer referees
Want to volunteer? View a list of volunteer opportunities at www.sdcba.org/volunteer
eing a lawyer can take 110 percent of your time. Hours not spent at the office and working on client matters are precious. Some members of the SDCBA are using their limited personal time to help the community and are garnering great enjoyment by doing so. Oftentimes attorneys are recruited by non-profits to utilize their legal skills for pro bono work, and that’s a great use of one’s time. However, a legal mind can be put to good use in community endeavors that aren’t related to the practice of law – just ask Vickie Turner and Dennis Wickham. Turner, of Wilson Turner Kosmo, has been active in The Links Inc. for 15 years. When this international service organization identified a compelling need to provide STEM (science, technology, engineering and math) training and experience to students of color in order to increase the pipeline of students for careers of the future, Vickie and a friend stepped up and created a tremendous opportunity for students in middle and elementary school to explore and develop their interest in STEM. Recognizing the relatively small percentage of women in STEM careers, the majority of Links to STEM program students are girls. Every-other Saturday morning, the students meet with Vickie and her team which includes volunteers from the fields of medicine, engineering, technology and more. The students spend their time working on robotics, computer programming and scientific projects focused on such topics as genetics, velocity and even lactose intolerance. Now in its second year, the program has assisted 50 students from areas across San Diego County. Why did Turner – whose practice is focused on product liability, class actions, business litigation and warranty litigation – choose to spend her off hours helping future STEM professionals? “Two of my sons are STEM oriented… one is an engineer and the other is in medical school,” she says. “There weren’t a lot of programs for my kids when they were growing up, and there is only a small pipeline of students of color going into STEM. I am working on the future and making sure these children have opportunities. This is about tomorrow.” When Wickham’s son was playing soccer through the American Youth Soccer Organization (AYSO), parents were required to volunteer, so he signed up to referee.
He “fell in love with refereeing,” and 15 years later, he’s still at it, though Wickham has expanded his reach and now also refs adult competitive games as a certified referee through both AYSO and the US Soccer Federation. He also is a ref instructor and was recently named referee disciple counsel for the State Referee Committee for Cal South. Wickham, who is a shareholder with Seltzer Caplan McMahon Vitek, says that actually quite a few referees are also lawyers. He attributes this to the fact that the skill set needed to officiate soccer games is virtually identical to mediating complex disputes – something he has had quite a bit of experience doing as a mediator for the Bankruptcy Court. According to Wickham, “Good officiating is managing people – you persuade others and keep things under control by being calm, interacting and listening.“ Like solving a puzzle with 1,000 pieces, Wickham finds enjoyment in officiating by trying to fit all of the pieces together. “It’s a challenge to figure out what players can do, what they will do and how to keep the flow of the game going. I love the game, so it’s a fantastic experience.” If you are looking to volunteer ”outside the law” here are a few tips from the Network for Good: Research the causes or issues important to you. Look for a group that works with issues about which you feel strongly. Would you like to learn something new? Consider seeking a volunteer opportunity where you can learn a new skill or gain exposure to a new situation. Don’t over-commit your schedule. Make sure the volunteer hours you want to give fit into your busy life. Consider volunteering as a family. Look for volunteer activities that you can do with your spouse, partner and/or children. Look into virtual volunteering such as keeping in touch with a shut-in via email. Think outside the box. There are countless organizations looking for volunteers and probably many have not occurred to you. A quick Internet search can yield lots of possibilities beyond the norm. Give voice to your heart through your giving and volunteering. Bring your heart and your sense of humor to your volunteer service, along with your enthusiastic spirit, which in itself is a priceless gift. What you’ll get back will be immeasurable! Teresa Warren (firstname.lastname@example.org) is president of TW2 Marketing, Inc. January/February 2016 SAN DIEGO LAWYER 35
Revisting Ardon Observations from the Ardon v. City of Los Angeles oral argument By Edward McIntyre
n a stormy January 5, the California Supreme Court heard oral argument in a case that will determine whether the City’s inadvertent disclosure of privileged documents – subject to attorney-client and work-product protection – waived those privileges because a clerk in the office of the City Administrative Officer produced the documents to Mr. Ardon’s lawyer in response to a Public Records Act (PRA) request. The City had listed the documents on its privilege log when responding to discovery in this tax-refund litigation, and a trial judge had determined that some of them were privileged in quashing a third-party subpoena. The trial court and court of appeal however, both ruled that their subsequent production in response to the PRA request waived any privilege claim. They held that the Act recognizes no “inadvertent disclosure” exception to waiver, even of the attorney-client or work-product privileges. Holly Whatley, Esq. argued for the City; Francis Gregorek, Esq., for Mr. Ardon. The SDCBA filed an amicus curiae brief arguing that the ethical standard the Court had adopted in Rico v. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807 applied to Mr. Ardon’s lawyer, notwithstanding her use of the PRA to obtain the documents and that, since the holders of the privileges (City Council and City Attorney) did not authorize the documents’ disclosure, Mr. Ardon could not exploit a clerk’s mistake to claim waiver. The Court was engaged from the outset, with a constant hour of questions from six of the seven justices. The Chief Justice and Justices Corrigan and Chin focused much of their inquiry on the privileges at stake and the established jurisprudence under Evidence Code section 912 that inadvertent disclosure is not a waiver of the attorney-client privilege – contrasted with Mr. Ardon’s position that disclosure in response to a PRA request waives any privilege. At one point, the Chief Justice asked Ms. Whatley whether such privileged documents were even public records for purposes of the PRA. Justices Kruger, Cuéllar and Liu focused more on the statutory interpretation of the PRA. Justices Kruger and Lie, in particular, asked questions that ranged beyond the privileges at issue and pressed counsel on both sides about all disclosures in a response to a PRA request, including very sensitive personal or financial information (e.g., social security numbers or critical financial information that a third-party had submitted to the public agency). Justice Liu asked whether, in such circumstances, the Court would have to look to other established bodies of law to determine how
to treat such confidential information. Questions from Justice Chin suggest that the Court may tie its decision in Ardon to another pending case, Newark Unified School Dist. v. Superior Court ((2015) 239 Cal.App.4th 33), in which the Court also granted review. The Newark United court held that inadvertent disclosure of privileged documents in response to a PRA request does not waive the privilege. The Court chamber was almost “standing-room only,” with row after row of high school students – in best dress and on best behavior. Schools in the San Francisco area bring their civics and political science classes to the Court for oral argument. The Chief Justice welcomed the students and acknowledged the teachers by name as the session began. Most of the students appeared as engaged as the lawyers in the chamber. The young lady sitting next to me furiously took notes as Justice Liu asked rather detailed, and highly technical, questions about the canons of contract interpretation and the logical extension of the court of appeal’s interpretation of the PRA.
On the question of “inadvertence” Justice Corrigan gestured broadly across the bench and articulated the very practical, “We all know stuff happens!” On the question of “inadvertence” Justice Corrigan gestured broadly across the bench and articulated the very practical, “We all know stuff happens!” In response to Justice Cuéllar’s request for a definition of “inadvertence,” Ms. Whatley referred him to the one the SDCBA amicus brief articulated based on its analysis of the case law’s evolution: when a document’s author and its intended recipient do not intend the actual recipient to have the document, its disclosure is “inadvertent.” Guessing how any court will decide a case based on questions at oral argument is akin to an ancient Roman soothsayer’s use of chicken entrails to predict the outcome of a battle. Foolhardy at best! Sometime between now and April 4, we will know the answer. Edward McIntyre (email@example.com) is an attorney at law and Co-Editor of San Diego Lawyer.
The SDCBA filed an amicus brief in Ardon v. City of Los Angeles in September 2015. Read the full amicus brief online at www.sdcba./org/amicusbrief2015 January/February 2016 SAN DIEGO LAWYER 37
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Quick Guide: New California Employment Laws
New Employment Laws for the New Year An update on California laws for 2016 By Stephenie Alexander
Leave of Absence Laws AB 304 - Mandatory Paid Sick Leave Amendment The “Healthy Workplaces, Healthy Families Act of 2014,” implemented in July 2015, requires employers to provide all California employees with three days (or 24 hours), whichever is greater, of paid sick leave per year. Shortly after implementation, the California legislature passed an amendment which allows employers alternative options with respect to the accrual of sick leave. The amendment also clarifies certain issues such as the reporting of unlimited paid sick leave on wage statements, the validity of existing leave banks prior to the implementation of the Paid Sick Leave law, and the calculation methods of an employee’s rate of pay. AB 304 was signed into law on July 13, 2015, as an emergency statute. AB 579 – Expansion of the Definition of “School Activities Leave” and Kin Care Pursuant to Labor Code Section 230.8, employers with 25 or more employees must permit an employee to take up to 40 hours per year for School Activities for one or more children enrolled in kindergarten, Grades 1 through 12 or under the supervision of a licensed child care provider. SB 579 expands the definition of “school related activities” to include the enrollment of a child in school or licensed care provider (including for purposes of seeking a school and re-enrollment). “School related activities” also includes any emergency requests from the school that a parent pick up their child due to behavioral issues, sudden closures or natural disasters. Eligible employees now include stepparents, foster parents and employees who stand in loco parentis to a child. SB 579 also harmonizes the inconsistencies between an employee’s use of sick leave between Kin Care and Paid Sick Leave laws. The
amendment clarifies an employee’s ability to use sick leave under Kin Care laws for the same purposes and for the same family members as provided under California’s Paid Sick Leave law. AB 583 – Expansion of National Guard Leave Protections Under existing law, members of the National Guard that have been ordered into active state or federal service are provided with protected leave. This means members are entitled to the same or similar position, pay and status upon return unless the employer can establish that the employee’s reinstatement will cause the employer to suffer undue hardship. AB 583 extends the law’s protections to California employees serving in the National Guard of other states.
Discrimination, Harassment and Retaliation Laws SB 358 – Amendment to California’s Fair Pay Act Previously, California’s Fair Pay Act required that an employee establish that he or she was not being paid the same rate of compensation as his or her counterpart of the opposite sex at the same establishment performing the exact same work or “equal work.” Through this amendment, the California legislature diminishes the employee’s burden in seeking relief under the Act by providing that the employee need only show that he or she is not being paid for “substantially similar work.” The employee does not have to have the exact job as the employee of the opposite sex, nor does the employee counterpart have to be in the exact same location as the aggrieved employee. Once the aggrieved employee has made a prima facie showing that he or she was not paid the same rate of compensation as someone of the opposite sex for substantially similar work, the burden shifts to the employer to show that the decision is tied to a business necessity, which may include a seniority system, merit based system, or other bona fide factor. Reliance on any of the business necessity factors must constitute the sole reason for any discrepancy in the rates of pay.
January/February 2016 SAN DIEGO LAWYER 39
Quick Guide: New California Employment Laws
AB 987 – Reasonable Accommodation and Retaliation (Government Code Section 12940) In Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal. App.4h 635, a California Court of Appeal held that a mere request for an accommodation, without more, does not support a claim for retaliation under California’s Fair Employment and Housing Act. With the passage of AB 987, the California legislature clarifies that employers may not retaliate against any employee that requests a reasonable accommodation, irrespective of whether the request is granted or denied. AB 1509 – Expansion of Whistleblower and AntiRetaliation Protections to Employee’s Family Members This amendment extends the protections afforded under Labor Code Sections 98.6, 1102.5, 2810.3 and 6310 for an employee’s participation in any protected activity or conduct to the employee’s family members.
Wage and Hour Laws Minimum Wage Increase The minimum wage in California increased on January 1, 2016, to $10 per hour. SB 327 – Health Care Industry Meal Period Waivers Remain Valid and Enforceable In order to address any confusion resulting from the Court of Appeal opinion in Gerard v. Orange Coast Memorial Medical Center (2015) 234 Cal.App.4th 285, the California legislature clarifies the special meal waiver rules for employees in the health care industry continue to be valid and enforceable. SB 501 – Further Limitations on Wage Garnishments SB 501 reduces the amount an employer may garnish from the wages of its employees. As revised, a garnishment order may not exceed the lesser of: (i) 25 percent of the employee’s weekly disposable earnings, or (ii) 50 percent of the amount by which the employee’s earnings for the week exceed 40 times the minimum wage. AB 1506- PAGA Wage Statement Claims are Curable Pursuant to the recent amendments of Labor Code Section 2699 and 2699.3, employers have an opportunity to cure defects on employee wage statements. Labor Code Sections 226(a)(6) and 226(a)(8) requires employers to identify the inclusive dates of the respective pay period and the employer’s identity and address on each wage statement. The amendment allows employers to cure any defects by providing aggrieved employees with compliant wage statements. To avail itself of the “cure” provision, an employer must establish that all defects have been corrected and that compliant wage statements have been provided to each aggrieved employee for every pay period in the preceding three years from the date of the employee’s complaint. Employers must cure any defects within 33 days of the employee’s complaint to the Labor Workforce Development Agency. 40 SAN DIEGO LAWYER January/February 2016
AB 1513 – Compensation for Rest/Recovery and “Nonproductive” Time Applicable to Piece-Rate Compensation Structure Labor Code Section 226.2 imposes new compensation requirements for “nonproductive time” on employers that compensate employees based on “productive” or piece-rate structures. Specifically, employers are now required to pay employees for rest and recovery time and “other nonproductive time” based on a separate hourly rate of pay. Labor Code Section 226.2 defines “other nonproductive time” as time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity for which the employee is compensated on a piece-rate basis. The hourly rate of pay must be the greater of either: (i) the applicable minimum wage, or (ii) the employee’s average hourly rate for time worked during the work week. Employers must also comply with the statute’s wage statement requirements imposed under the statute. An employer may take advantage of the statute’s safe harbor provision if three requirements are satisfied by December 15, 2016. First, the employer must make payments to current and former employees for all nonproductive time which was uncompensated from July 1, 2012, through December 31, 2015. Second, the employer must make a good faith attempt to locate and provide payments to former employees that are eligible for such compensation. Third, written notification of the employer’s intention to make additional compensation payments must be provided to the Department of Industrial Relations by July 1, 2016. AB 970 – Expansion of Labor Commissioner’s Enforcement Powers With the passage of AB 970, the California Labor Commissioner is authorized to enforce local minimum wage and overtime laws, which includes the issuance of citations and penalties. This includes the enforcement of any violation of expense reimbursements under Labor Code Section 2802.
Unlawful Employment Practice AB 622 - Labor Code Section 2814 AB 622 expands the definition of acts which constitute an “unlawful employment practice” to preclude employers from utilizing the E-Verify system at any time or in any manner other than those set forth under federal law to check the status of an employee’s or applicant’s employment eligibility. Violations of this law includes a potential civil penalty up to $10,000 per violation. For a complete list and further details concerning all employment laws scheduled to take effect in 2016, consult your attorney to ensure your company’s practices and policies are compliant with the new laws. Stephenie Alexander (firstname.lastname@example.org) is an attorney at law.
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The Consumer Financial Protection Bureau (CFPB) is a 21st century agency that helps consumer finance markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives.6 This tool provides information and advice for optimizing how you pay off your student loans based on some basic information about your situation. While they cannot give you advice for your exact situation, they may be able point you in the right direction and help you learn about some of your options. Homeroom, The Official Blog of the U.S. Department of Education, provides guidance and warnings on how to avoid student loan scams. Read “Beware of Student Loan Debt Relief Offers and Credit Repair Deals’” at http://www. ed.gov/blog/2014/07/beware-ofstudent-loan-debt-relief-offersand-credit-repair-deals/.
A Bit of Other Advice “To design a successful financial plan, you have to look at a person’s life holistically which includes their assets and liabilities. Managing someone’s liabilities is just as important as their assets depending on their stage in life. For a recent law school graduate, you want to analyze the potential earnings versus the student loans that need to be paid. The goal is to build as strong a financial foundation as possible. You just made this large investment of time, energy, money, and effort, and of course you want to see it pay off!
Managing someone’s liabilities is just as important as their assets depending on their stage in life. Our team sits down with each person to conduct what we call a ‘Discovery Meeting’ to explore every aspect of their life and how we can use all of the strengths to either eliminate or minimize the weaknesses. Every person has different goals and
circumstances; we want to connect with each person emotionally in an effort to demonstrate how passionate our team is in service to others. Some folks may have the resources to pay off their law school student loans in 10 years, some in 30 years. Despite the debt, financial advisors try to make sure each individual accomplishes their hopes and dreams.” – Harrison Till, Financial Advisor, San Diego, California More For You to Consider • Student Loan Debt Relief http://www.studentdebtrelief.us/ • “The Top 10 Student Loan Tips for Recent Graduates” http://ticas.org/content/posd/top-10-studentloan-tips-recent-graduates • Hire a financial advisor or tax professional In the end, how you manage your loans will determine how quickly they are paid. Do not neglect your debt, but hit it straight on as you would deal with a tricky legal matter. Be savvy, be prepared, and be in the know. Jeremy Evans (email@example.com) is Managing Attorney of California Sports Lawyer.
Distinctions Individuals and organizations in our community were recently honored for a variety of achievements. Following is a list of recent community recognitions: Hon. Joan Weber of the San Diego Superior Court was recently honored with the Pursuit of Justice Award from the American Bar Association's Torts and Insurance Practice Section.
Harvey Berger, founding partner of Pope, Berger, Williams & Reynolds, LLP, was recently inducted into the College of Labor and Employment Lawyers.
Hon. William Wood, Commissioner for the San Diego Superior Court, was honored as San Diego Family Law Jurist of the Year by the Southern California Chapter of the American Academy of Matrimonial Lawyers.
Sullivan Hill Lewin Rez & Engel associate Kathryn Millerick will serve on the San Diego Bankruptcy Forum's board of directors.
James Mangione, Tilisha Martin and John Scherling were appointed by Governor Jerry Brown to serve as judges for the San Diego Superior Court.
Janice Mulligan, founding member of Mulligan, Banham & Findley, was awarded with the International Association of Lawyers' Monique Raynaud-Contamine medal for the best scientific report for her recent publication about risk management and cyber healthcare.
To submit information regarding honors of a community or civic nature or passings in the legal community, email firstname.lastname@example.org. January/February 2016 SAN DIEGO LAWYER 43
EN PERC T C 2016 SDCBA
100 PERCENT CLUB 2016 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 2016, 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 Hannink & 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
44 SAN DIEGO LAWYER January/February 2016
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 Parker Straus, LLP 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
The San Diego County Bar Association gratefully acknowledges its Sustaining Members. PATRON MEMBERS Marc D. Adelman Jose S. Castillo 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 Hon. 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, Jr. Philip P. Lindsley Dr. Carl L. Sheeler FRIEND MEMBERS Laura Ashborn Steven Barnes Hon. 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 William C. George Kenneth N. Greenfield Ronald Leigh Greenwald Ajay K. Gupta Karen A. Holmes Daniel A. Kaplan Mark Kaufman Marguerite C. Lorenz Robert E. McGinnis Raymond J. Navarro Justin Nielsen 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
PHOTO GALLERY STEPPING UP TO THE BAR Photos by Jason de Alba
L-R: William Naumann, Jillian Ferrario, Loren Shiu
SDCBA members gathered at the Bar Center at 401 for the Association's annual holiday celebration on December 4. The installation ceremony for the SDCBA's 2016 Board of Directors took place at the event, where Heather Riley was also introduced as 2016 Bar President. Thank you to event sponsors Westlaw; Manuel Valdez and Manny Valdez; Judicate West; Torrey Pines Bank; GEICO; NAI San Diego; Emmes; and Inter Alia Lawyers.
L-R: Rick Layon, Ellen MIller-Sharp, Marnie Layon, Frank Barone
L-R: Alison Adelman, Mark Adelman
Heather Riley, Hon. Melinda Lasater
L-R: Elidia Dostal, Linh Lam, Judy Bae, Parada Ornelas
L-R: Lauren Vega, Nicholas Ferraro, Jamie Quient, Summer Stephan
2016 SDCBA Board of Directors sworn in by Hon. Jeffrey Barton
L-R: Matt, Sam and Jason Riley
L-R: Jenny Chang, Elvira Cortez, Kelly Tran January/February 2016 SAN DIEGO LAWYER 45
PHOTO GALLERY Back (L-R): Loren Freestone, Melissa Deleon, Camille Guerra, Hon. Cindy Davis, Hon. Tamila Ipema, Hon. Matthew Braner, Stephanie Chow; Front: Jerrilyn Malana, Hon. Peter Doft, Hon. Gary Kreep, Ben Aguilar
BENCH-BAR SERVING SENIORS LUNCH Judges and attorneys served lunch to seniors downtown at Senior Community Centers, Gary and Mary West Senior Wellness Center on December 16. Camille Guerra
Hon. Cindy Davis
ANNUAL APPELLATE LUNCHEON On December 11 the SDCBA's Appellate Practice Section held their annual luncheon featuring California Supreme Court Justice Mariano-Florentino Cuéllar. Administrative Presiding Justice Judith McConnell facilitated a conversation with Hon. Cuéllar during the event. Victoria Fuller
Hon. Justice Mariano-Florentino Cuéllar, Hon. Judith McConnell
LAWYERS CLUB EAST COUNTY JUDICIAL RECEPTION Photos courtesy of Lawyers Club of San Diego The Lawyers Club of San Diego hosted their East County Judicial Reception on December 2.
L-R: Hon. Roger Krauel, Hon. Selena Epley, Manuel Valdez, Hon. Ronald Frazier
L-R: Hon. Roger Krauel, Stephanie Poli, Roxanne Carter
ADVERTISERS INDEX ADR Services, Inc......................................... 2 AHERN Insurance........................................ 5 Albertson & Davidson LLP..................... 36 CaseyGerry .................................................... 3 Craig Higgs..................................................... 41 David Cameron Carr................................. 28 Fragomen, Del Rey, Bernsen & Loewy, LLP.. 16 46 SAN DIEGO LAWYER January/February 2016
Gomez Trial Attorneys............................. 18 Hon. Thomas Nugent............................... 7 Hosey Mediation......................................... 29 Huver Mediation......................................... 14 JAMS................................................................... 10 Judicate West ............................................... 42 Kathryn Karcher........................................... 26
KPMG LLP........................................................ 12 Law Office of Steven C. Vosseller...... 22 LawPay.............................................................. 30 Lawyer Referral & Information Service.32 Panish Shea & Boyle LLP...................................48 San Diego County Bar Foundation .38 Seltzer Caplan McMahon Vitek.......... 34
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Published on Feb 2, 2016