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NOV/DEC 2015



+PLUS The Generational Divide: A Roundtable Discussion Human Trafficking Hits Home



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Features 7


Roundtable: Discussing the Divide Are lawyers from different generations really all that different?

Human Trafficking Hits Home A critical role for the legal community in the fight against human trafficking in San Diego

By Jim Crosby and Jeremy Evans; Featuring Hali Anderson, Radmila Fulton, Anton Vialtsin, and Thomas Warwick

By Jamie Quient


New Year, New President Meet 2016 SDCBA President Heather Riley


Porter Brown's Revenge Recent developments with North Carolina State Board of Dental Examiners v. Federal Trade Commission provides tell-tale signs for legal practice

By Ray Huard

By David McGowan


Why I Belong Meet SDCBA member Meredith Levin

By Alidad Vakili



Everything Old is New Again Hon. Lorna Alksne and Hon. David Gill weigh in on “old school” v. “new school” practices and developments in court By George Brewster, Jr. and Christopher Todd

ABA Midyear Meeting Preview A few things to look forward to at the 2016 American Bar Association (ABA) Midyear Meeting taking place in San Diego By Jeremy Evans


Building a Legacy of #ProInPractice Thank you for sharing some of the best examples of #ProInPractice

Rewind: Time for a Short Story The history behind, and questionable fate of, the clock at 220 West Broadway

By Richard Huver

By George Brewster, Jr.


Deans TFARR’s 15-credit practical skills requirement By Stephen Ferruolo



In-House Perspective The art of the relationship


In Their Own Words SDVLP pro bono attorneys talk about the benefits of volunteering By Parisa Ijadi-Maghsoodi



Distinctions Celebrating recent acknowledgements and honors in our community

By Edward McIntyre

Photo Gallery San Diego's legal professionals share conversations and smiles

Ethics Don't get caught with your head in the clouds when it comes to ethical implications of cloud technology


Correction: In the article "Two Birds with One Stone," featured in the September/October 2015 issue of San Diego Lawyer, the contact information for University of San Diego (USD) Law School's Legal Clinics was incorrect. The correct contact is Margaret Dalton, Professor of Law and Faculty Director, Clinical and Placement Education, USD School of Law. Linda Morton is Associate Dean of Experiential Learning and Professor of Law at California Western School of Law. San Diego Lawyer regrets this error. Issue no. 6. San Diego Lawyer™ (ISSN: 1096-1887) is published bimonthly by the San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. Phone is 619-231-0781. The price of an annual subscription to members of the San Diego County Bar Association ($10) is included in their dues. Annual subscriptions to all others, $50. Single-copy price, $10. Periodicals postage paid at San Diego, CA and additional mailing offices. POSTMASTER: Send address changes to San Diego Lawyer, 401 West A Street, Suite 1100, San Diego, CA 92101. Copyright © 2015 by the San Diego County Bar Association. All rights r­ eserved. Opinions expressed in San Diego Lawyer are those of the author only and are not opinions of the SDCBA or the San Diego Lawyer Committee.

4 SAN DIEGO LAWYER November/December 2015



T 800.282.9786

To learn more about the SDCBA program

LICENSE #0K07568


Meredith Levin


mrl adr

Education: University of Wisconsin – Madison (1992); University of Pittsburgh School of Law (1995) Area of practice: Family law both, litigation and dispute resolution Proudest career moment: I represented a father whose teenage daughter was engaged in risky behavior. He continued to advocate for her to receive treatment when everyone involved tried to minimize her behaviors. With her father’s strong support she finally received treatment and several years after the case concluded, I received her high school graduation notice. Helping to make a difference in someone’s life is to me, what this work is all about. Family: My dear husband, Tom, and our sweet little dog, Madison Birthplace: Philadelphia, PA Current area of residence: Lemon Grove, CA If I weren’t an attorney, I’d be an essayist/columnist. The best thing about being an attorney is the ability to assist people in navigating a difficult and complex system and helping clients. I take the counselor at law component seriously. Last vacation: Green Bay, WI (Lambeau Field – an amazing place to go if you have any interest in football) Favorite Web site: Twitter Hobbies: Kickboxing, knitting, the beach and rooting for my Badgers! I’ve been to Rose Bowls, a Big Ten basketball tournament and NCAA tournament games. Favorite book: A Tree Grows in Brooklyn Favorite musical group: Duran Duran and Public Enemy

Co-Editors Edward McIntyre Christine Pangan

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

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

Cartoonist George Brewster, Jr.

Photographers Barry Carlton Eric Ganci David Seto


Executive Director Ellen Miller-Sharp

Communications Director Karen Korr

Graphic Designer Attiba Royster

Publications Editor Jenna Little

Favorite food: Hot and sour soup Why do you belong to the SDCBA? I belong to the SDCBA for the networking opportunities, the educational and practical programs and to stay connected with the goings-on within the San Diego legal community. How does your SDCBA membership help keep you connected to the legal community? My membership allows me to connect with attorneys and other related professionals, particularly those outside of my direct practice area. I am able to participate in a variety of programs, educational, social and service-oriented, where I am able to meet and work with other attorneys. What makes San Diego’s bar so special/unique? I moved to San Diego mid-career from a much smaller area. Although San Diego is a big city, the bar allows the legal community to be small and inclusive. There is a clear focus on the needs of the members.

6 SAN DIEGO LAWYER November/December 2015

401 West A Street, Suite 1100, San Diego, CA 92101 Phone 619-231-0781 E-mail Fax 619-338-0042 Website Interested contributors should send brief story outlines to the editor in lieu of unsolicited articles. No one other than the editor is authorized to commission original contributions to San Diego Lawyer™. Send all contributions to above address. San Diego Lawyer™ reserves the right to edit all submissions at its sole discretion. Submission of articles or photographs to San Diego Lawyer™ will be deemed to be authorization and license by the author to reproduce and publish said works within the pages of San Diego Lawyer™, the SDCBA website and social media pages. The opinions expressed by the authors and editors in San Diego Lawyer™ magazine do not necessarily reflect the official position of the San Diego County Bar Association.



THE Generational

A Roundtable Discussion Are lawyers of different generations really all that different?


THOMAS P. NUGENT (RET.) Private Dispute Resolution

By Jim Crosby and Jeremy Evans Featuring Hali Anderson (HA), Radmila Fulton (RF), Anton Vialtsin (AV), and Thomas Warwick, Jr. (TW) Photos by Jason de Alba

Arbitration * Mediation Trials By Reference

hen thinking about “The Generational Divide” among newer and seasoned attorneys, the following song comes to mind, sung by Sammy Davis Jr., Ella Fitzgerald, and many more, “Something’s Gotta Give,” written by Johnny Mercer:

And Related Proceedings


“When an irresistible force such as you Meets and old immovable object like me You can bet as sure as you live Something's gotta give” You can bet the discussion was lively, intriguing, and fun. Without further ado, Jim Crosby and Jeremy Evans present the following discussion: 




Work-Life Balance Jim Crosby (JC): A conversation I’ve had with young lawyers, is that they want work-life balance. I say, there is no work-life balance. You work, you have a life, and you juggle the two. Are young lawyers right and being more honest about it or are they wrong and their feelings are dictated more by the economy than they are by some kind of real shift going on?

Continue reading on page 24



They say “you can’t take it with you.” But I will be taking many great memories with me from this past year as your President. The SDCBA has had another incredible year, filled with improvements and changes designed to make your experience more enjoyable, more meaningful and more rewarding. This year, one of my goals was to demonstrate to the world (or at least our community) how amazing and altruistic most lawyers are by sharing stories of “professionalism in practice.” We developed the hashtags #ProInPractice and #SetTheBarSD to help capture relevant conversations taking place on social media. Now, as my year as President comes to a close, it would take many hours on social media to use all the hashtags that resonate with this incredible experience. #Grateful #TooShort

#AmericasFinestLawyers #AmazingAttorneys #Humbled #Supported #HappilyExhausted There were many things I had anticipated about serving as Bar President – attending many memorable events, speaking with the press about important issues, leading a dynamic and engaged board – but there has been so much more about this journey than I imagined. I could not have imagined all that we would accomplish together. Our successes are immeasurable – I cannot even (#icanteven) begin to quantify the impact we have had collectively on our community, through our court funding efforts, our countless hours volunteering for various projects (particularly those that encourage civics education), the hundreds

Just a few years ago, I presided over medical malpractice trial. This was not my area of specialty in practice, so I did my best to learn the relevant law. At the close of plaintiff’s case in chief, I was prepared to grant a non-suit motion on certain grounds. Clark Hudson, who was defending the case, said, “Judge, if you are going to grant the motion on that basis, I would prefer that you deny it.” I did, and Mr. Hudson received both a defense verdict and my lasting respect.


– Hon. Timothy Taylor, San Diego Superior Court


Part of our responsibility is to build trust between our profession and the general public because trust is the cornerstone of every attorney-client relationship. The only way to build trust is to practice law with integrity, civility and professionalism. Ironically, those are also the best ways to build a stellar reputation. – Kimberly Ahrens, The Ahrens Law Office

8 SAN DIEGO LAWYER November/December 2015


of hours of education we produced, and all of the connections (both personal and professional) that we made with one another. Throughout the year, I have been talking about what it means to practice with integrity – to be professional in the face of defeat, to treat opposing counsel in the same manner you would want to be treated, and to remember that we are responsible for protecting the reputation of our profession day in and day out – whether in a suit and tie or out at a Padres game. Through all of the stories many of you have shared, and all that I have had the incomparable opportunity to experience this year, I am convinced that the lawyers and legal professionals who comprise the San Diego County Bar, with their sense of professionalism and integrity, are what make our legal community truly exceptional. I share a very heartfelt thank you to each and every one of you for allowing me the

honor of serving as your President this year. My thanks as well to the 2015 Board of Directors: Heather Riley, Jon Williams, Ilona Antonyan, Jim Crosby, Ray Estolano, Danielle Hickman, Kristin Rizzo, Loren Freestone, Dan Bacal, Lizzette Herrera Castellanos, Jodi Cleesattle, Andy Cook, Roger Haerr, Rick Layon, Lilys McCoy, and Nicole Heeder. Their diligence and support this year has allowed the Association to thrive. We are fortunate to have an incredible team working with us to make all this possible, starting with our Executive Director Ellen Miller-Sharp and her team (SJ Kalian, Sarah Harris, Ashley Gallucci, Heather Breen, Gretchen Trouw and Erika Fox), our Communications Director Karen Korr and her team (Jenna Little and Attiba Royster), our Finance Director Phil Schneider, and Ecaterina Stancil in his department, Donna Kelly and Tammy Stevens in Member Services, LRIS Program Director Michelle Chavez and her team:

Peter Donegan, Elizabeth Sorensen, Gloria Varela, Susan Richardson, Holly Thomas, Julia Dominguez, Neomy Vera, Kathy Abott, and Aldrin Ring and everyone else who comprises the SDCBA team. Our success as an association and my great year are tied directly to their hard work and commitment. Thank you one and all! Last but certainly not least, thank you to my incredible fiancé (and SDCBA member) Karin Wick, who stood by my side during dozens of events, and was understanding on all those evenings when I arrived home late. Words will never adequately express how grateful I am for your support this past year, and for your encouragement and support as I transition from my full-time law practice into full time mediation beginning in 2016. #THANKYOU #HuverOut #GoGetEmHeather #RileyRocks

Richard A. Huver, 2015 SDCBA President

CONNECTICUT LAWYER Everyone has a favorite lawyer joke, and the point of most punch lines is that all lawyers are villains. What do I do to shape and enhance the reputation of our profession? I try to be the “other” lawyer, the one who displays a high level of ethics, compassion and humanity. – Janice Mulligan, Mulligan, Banham & Findley




November/December 2015 SAN DIEGO LAWYER 9

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It’s Time to Adopt and Implement TFARR’s 15-Credit Practical Skills Requirement


hat is the status of the recommendations of the Task Force on Admissions Regulations Reform (TFARR) to require 15 credits of competency training for admission to the California Bar? Although the State Bar Board of Trustees unanimously approved the proposal in November 2014, there is uncertainty about what the State Supreme Court will do and when the justices and the state legislature will act. And although most California law schools have been preparing for the implementation of the recommendations, there continues to be strong resistance from some California law schools and deans, as well as national opposition from the Deans Steering Committee of the Association of American Law Schools (AALS). While I concede some of the negatives, I continue to believe that adoption of the TFARR proposal would benefit students, employers, clients and, last but not least, law schools. In brief, the TFARR proposal recommends establishing a pre-admission requirement of 15 credits of competency training, which can be achieved in a variety of ways, including simulation courses, clinics and externships. Up to six of the credits could be met by paid employment with law firms, corporate law departments, nonprofits or other legal employers (apprenticeships) or with judges (clerkships) during summers, the school-year or post law school. As Dean Tachna of Pepperdine Law School, who served on the TFARR Task Force and implementation working-group, has pointed out, the process leading to the adoption of the proposal brought lawyers, judges and law faculty together for the common purpose of improving legal education and preparation for the legal profession. Their work took several iterations; but the final proposal is one that is flexible and that will sustain and enhance the curricular experimentation and innovation that has characterized legal education at leading law schools, like USD, in recent years. The TFARR proposal also neatly piggybacks on the newly

Stephen Ferruolo adopted ABA accreditation standards, which, effective for students entering law school in fall 2016, will require six credit hours of experiential education. ABA accredited schools, like USD, will be able to certify courses and clinics to meet both requirements. In my view, one of the most appealing aspects of the proposal is allowing up to six of the 15 credits to be met by paid clerkships or apprenticeships, during or after law school, that are approved by law schools or the Bar. Admittedly, the need to review and oversee these positions and account for these credits is going to impose administrative costs and burdens on law schools, but the benefits to our students of these structured practical work experiences will be immense. As one commentator has written, “[t]he California apprenticeship model lays the foundation for new types of collaboration between law schools and employers. That’s an outcome that could benefit schools, students, employers and clients in myriad ways.” I could not agree more. Others have noted the flaws in the original letter from the AALS Deans Steering Committee, most notably the fact that the letter focused not on the final report approved by the State Bar Board of Trustees, but on an earlier version that was far less flexible, did not expressly (in its non-exhaustive list of topics) reference competencies related to finance, business or technology (which are particularly important to me as a former business lawyer) and did not encompass the comprehensive clerkship and apprenticeship options included in the

final report. What particularly surprised me in the AALS Deans’ letter was the assertion made that the requirement would adversely affect students who want to practice tax law. “[T]he 15-hour requirement could seriously hamper the student who wants to practice tax law and whose future employer advises taking as many specialized courses as possible in the field.” USD’s tax program was recently ranked sixth in the country and our graduate tax program ranked fifth, notably because of the broad array of specialized courses we offer in the tax field. Among these courses, several already meet the TFARR criteria for practical skills training, including Advanced Business Planning, a course which focuses on a series of planning problems that arise in connection with the formation and operation of a corporation, and our Tax Planning Lab, a simulation course developed and taught in partnership with Sempra Energy and KPMG. In addition, we offer students three tax clinics (Federal Tax, State Income Tax and State Sales & Use Tax). Taking a combination of these tax courses and clinics would easily give students nine or more of the required 15 practical skills credits. Given the opportunities our highlyqualified tax students typically have to work in accounting or law firms or do externships with state or federal tax agencies or clerkships with tax judges, fulfilling the remaining credits through the approved externship, clerkship or apprenticeship will be both feasible and career enhancing (not limiting). The TFARR recommendations are the result of a three-year collaborative process between law schools and the legal profession to find new ways to improve the preparedness and quality of lawyers in California. It would be a shame now not to approve and implement these innovative recommendations in the interest of preserving the discredited status quo. Stephen Ferruolo ( is Dean of the University of San Diego School of Law.

The Supreme Court recently referred the TFARR proposal back to the State Bar for further study. Adoption and implementation are now unlikely before 2020, at the earliest. November/December 2015 SAN DIEGO LAWYER 11



The Cloud Will Set You Free – Maybe


Don't get caught with your head in the clouds when it comes to ethical implications of cloud technology

uncan burst into Macbeth’s office with Sarah in tow. “Uncle, I’ve got this really cool idea. We can get modern and save money. All at the same time. It’s hot!” “Simultaneously ‘cool’ and ‘hot?’ I’m breathless with anticipation.” “Well, … never mind. We get rid of all these antiquated paper files.” Duncan gestured at a neat pile of briefs on Macbeth’s desk. “We store everything in the cloud. Latest thing. Clients’ll love us for it.” CARTOON BY GEORGE BREWSTER, JR. “Any particular cloud in mind?” Duncan started to get up. “So we’re good Sarah stifled a snicker. Duncan pressed to go then?” on. Macbeth motioned him back down. “Not “I’m talking about cloud technology. quite. General principles are one thing. Storing all our documents digitally. On a But as several out-of-state ethics opinions remote server. Hosted by a professional point out, cloud technology presents some company.” unique issues.” “Including client documents?” “Really? You’ve been studying it?” “Of course. That’s the point. No longer Macbeth smiled. “I’m not quite the have to store that stuff here. More Luddite you’d like to believe, Laddie. Let’s important, won’t have to pay for offaddress some of those issues.” site storage. Best part. We can access “Okay.” documents from anywhere. The office. “Confidentiality is critical when it comes Home. Traveling. Anywhere.” to client documents.” “What about our confidential "Of course. We all know that.” communications with clients?” “We do. Here at the firm we have “Same thing. In the cloud. We can even procedures to protect confidentiality. set up ways to give the clients access to We make sure all our employees know parts of our cloud storage.” how important it is. We remind them Sarah spoke. “So they can view their own periodically. But with cloud technology, documents?” we put those documents in someone else’s “You’ve got it.” hands. Essentially, a total stranger’s.” Macbeth set aside his reading glasses. “But we’ll have a contract. In case “Have you considered the ethical something goes wrong.” implications of using cloud technology?” “Not sure that’s enough. Our duties of “Couldn’t find anything in California that competence and confidentiality require said we can’t.” that we vet the cloud service provider quite “A low bar. That’s hardly a satisfactory thoroughly. For example, that we enter standard.” into a solid confidentiality agreement with Sarah reminded Duncan. “There’s that the provider itself. That we understand just 2010 State Bar opinion on the use of what security measures it has in place to technology. Not the cloud specifically, but it protect the data. That we know the limits may give some general guidance. And then it puts on its own employees’ access to the there are the more recent opinions about data – to do maintenance, for example.” ESI discovery.” “Good points, but can’t we just rely on Macbeth nodded. “Quite right, Sarah. the service provider?” They give helpful guidance. Especially “We can’t delegate away our ethical about the duties of competence and duties. We have the duty to protect our confidentiality in relation to technology.” clients’ confidential information. We have

the duty carefully to choose, to know and to supervise outside vendors we employ. Especially when client confidentiality is involved.” “I guess you’re right.” “On that point, I know I am. And since data breaches are becoming almost commonplace, our duties of competence and confidentiality are on-going. Just signing a contract and trusting the provider doesn’t work.” “Okay.” “Another issue is access.” “As I said, we have access 24/7. From anywhere. From everywhere.” “So long as the provider continues to exist.” “Well yes, but –“ “And so long as the country where the provider’s servers are physically located – either its government; or its judiciary – doesn’t freeze access to those servers.” “Has that happened?” Sarah nodded. “Take long to unravel.” Sarah held up several fingers. “Years. Just for third parties to get access to their own data.” Duncan’s eyes widened. Macbeth spoke. “Which raises the question of client consent. Same may not want their data sitting in a third-party’s hands.” “So, Uncle, you’re against the idea.” “Not at all. It could be a great advance. Both for our clients and us. But ethically you’ve got homework to do. Some hard questions need answers.” Macbeth picked up a brief from the pile on his desk. “Let me know when the three of us should talk about it again.” Editor’s Note. The opinions to which Sarah referred are State Bar Form. Opns. 2015193 and 2010-179 and SDCBA Form. Opn. 2012-1. Edward McIntyre ( 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. November/December 2015 SAN DIEGO LAWYER 13

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The Art of the Relationship


ith the end of another year swiftly approaching, I took a moment to reflect on the past few years since the beginning of this column and the wonderful individuals I had the pleasure to speak with about their in-house perspectives. During many of those conversations, we frequently spoke about what motivated them to be who they are or how they arrived at their current position. Besides the usual tenacity and type-A personality traits lawyers seem to attract (or perhaps those traits attract us lawyers), the importance of relationships resonated with just about everyone I spoke with. Whether it was a parent, sibling, friend, or colleague, many of us have had in our life someone whose influence made all the difference. Where would we be without those relationships that made all the difference? But, I would be remiss if I didn’t mention the one relationship so many of the in-house attorneys I spoke with touched on, the client. By the nature of our profession, we are service providers to our clients and without them, we would have no profession. So, it is no surprise that the lawyers I spoke with emphasized the importance of building strong and long-standing client relationships. The traditional (and still often times the most common) path in-house for lawyers is by establishing a great relationship with your client so that when they look to expand their in-house department, you are their top pick. And, once in-house, counsel needs to build good relationships with the key decision-makers of the company. Indeed, the importance of having good relationships with clients applies to all lawyers, not just those who work in-house. This topic raised a few important insights which struck me as seemingly simple and common-sense, but occasionally challenging to embrace on a regular basis in our daily practice:

expertise, you increase your value to your client. Rare is the client that enjoys discussing the nuances of a technical ruling by the IRS or the SEC. More often, the client looks to their counsel to be the expert and advise them appropriately. By developing a particular expertise, you further strengthen your relationship and value to the client. Alidad Vakili GET TO KNOW YOUR CLIENT. Everyone I spoke with highlighted this in one way or another. You have to know your client and the value you bring to the table is enhanced by having a deep understanding of your client, its business and operations. GET TO KNOW THE KEY DECISION MAKERS. If you represent a company, get to know the key decision makers and make sure they view you as solution-oriented not just the person who raises issues and problems. Clients often times look to their lawyers not only to raise potential pitfalls, but also to help them find ways to navigate those dangers. REFINE YOUR ART.

BE HUMAN. Last, but not least, we are all people with interests that are not just our day-to-day job duties. We are so much more than the cases we try or the transactions we help close. Building a deeper relationship requires really getting to know the people you work with in a personal way so that they see you not just as a paid advisor, but as someone who cares about them and their interests. The reverse is true as well. The more your client sees you as a person other than purely as a lawyer, the stronger the bonds of that relationship. Given the fundamental importance clients have to our profession, while practicing the art of lawyering, we should also do well to remember the art of building longlasting and rewarding relationships with those clients. Alidad Vakili ( is an attorney with K&L Gates LLP.

The practice of law is ever-changing and complex. By developing a particular

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Carr November/December 2015 SAN DIEGO LAWYER 15

2015: A FEW HIGHLIGHTS Check out all of the things that happened at the SDCBA this past year! Looking forward to all that’s ahead in the next.





ALL SDCBA SECTIONS SDCBA Sections and Committees


HIGH SCHOOL MOCK TRIAL PROGRAM 437 students and 426 attorney volunteers participated

400+ LUNCHES SERVED TO SENIORS During Bench-Bar Serving Seniors Lunch programs


CELEBRATED SERVICE AT LAW WEEK LUNCHEON Attendees celebrated 11 award recipients for their service to San Diego


2015 by the numbers


in third State of the Courts report


#PROINPRACTICE 20+ STORIES OF PROFESSIONALISM Professionals continue to share stories of extreme civility in our community

260 LAW WEEK POSTERS & ESSAYS SUBMITTED Submissions for the contest came from 21 schools all over San Diego County


INAUGURAL SUMMER SOCIAL! Over 100 SDCBA members attended

EXPLORED IMPLICATIONS OF SOCIAL MEDIA IN THE LAW AT ANNUAL BENCH-BAR MEDIA EVENT HELLO LAW STUDENTS! Over 57 representatives from SDCBA Sections, Committees & Law Related Organizations attended the Law Student Welcome Reception



6TH ANNUAL BENCH BAR LUNCHEON Nearly 150 attorneys enjoyed lunch with 50 judges




Members attended SDCBA events

Members visited the SDCBA Referrals provided by the member lounge Lawyer Referral & Information November/December 2015 SAN DIEGO LAWYER 17 Service

1,784 4,200 5,600 26,000 New Members

2016 San Diego county bar association president

Heather Riley R

ock star, tenacious, unflappable, generous and funny are terms friends and colleagues use to describe Heather S. Riley. “A basic over-achiever,” is how Heather Riley describes herself. As the mother of two boys, a partner in a prestigious law firm with offices throughout California, and now as the incoming president of the San Diego County Bar Association, Heather’s description of herself seems apt. Her term as Association president starts in January. “I’m very excited to serve as SDCBA President next year. I can’t wait for my

18 SAN DIEGO LAWYER November/December 2015

term to start – the opportunity to serve and be able to touch so many sides of the profession will be an amazing experience,” Heather said. A land-use and environmental lawyer with Allen Matkins Leck Gamble Mallory & Natsis LLP, Heather's goals include raising the Association’s public profile, in line with the organization’s strategic framework, and recruiting lawyers from other large firms to become active in the association. “As the connector or convener, the SDCBA is relevant to firms of all sizes,” Heather said. “But coming from a big firm, I understand how the Bar’s benefits may be viewed differently. When you’re a small


or solo practitioner, the county bar is very important because you get a lot of services through them. You can save on insurance, for example. The larger law firms don’t need those same benefits, but they can find value in other areas – like the numerous leadership opportunities and chances to interact with the bench.” The Bar Association can help younger and less experienced lawyers in large firms make connections with the San Diego community. “I also just think general civic engagement is important.” Heather knows the benefits of SDCBA leadership intimately. While other attorneys often are involved in leadership

2016 SDCBA President Heather Riley opportunities at various law-related organizations before running for a seat on the SDCBA Board of Directors, Heather was asked early on to lead the Association’s Environmental and Land Use Section, and to chair the SDCBA’s delegation to the California Conference of Bar Associations, which brings together attorneys from across the state to create non-partisan solutions to law-related issues and improve laws. Her experience prepared her to take a lead role in restructuring the Bar’s over 40 sections, a large scale project the SDCBA’s Section and Committee Council tackled in 2014. The restructuring is considered a success, as it has not only increased efficiencies for the sections, but also has improved communication and planning between different entities within the

“It's our hope that the community sees the SDCBA as ‘the go-to place’ for legal information, as well as guidance and leadership on important issues.” organization. Heather also served on the Bar’s Judicial Election Evaluation Committee (JEEC), convened in election years to review the qualifications of candidates in contested judicial elections and provide evaluations in order to help guide all voters. “It’s a service for the public that benefits everyone, as most voters do not have any background on judicial candidates. It also gives the Bar an even stronger voice in our community,” Heather said. “It's our hope that the community sees the SDCBA as ‘the go-to place’ for legal information, as well as guidance and leadership on important issues.” She said her colleagues at Allen Matkins have been “super supportive” of her role with the Bar Association, although “they still think I’m kind of crazy.” Tenacious is the word he’d use, said Jeff Chine, a partner in Allen Matkins’ San Diego office. He said he’s amazed at Heather’s

ability to balance all her activities. “She goes to all the soccer games and she goes to all of the school events and she’s a terrific mom while at the same time, being a very busy lawyer,” Chine said. “That’s not an easy thing to do.” Heather said she has become quite “a soccer mom” with her oldest son, eightyear-old Matthew. With husband, Jason, “Quite a lot of our weekends and weekdays after school are consumed by soccer at the moment.” Five-year-old Samuel has yet to develop an interest in organized sports, although Heather said both boys definitely take after Jason, a scientist at Takeda Pharmaceuticals. Jason has played sports throughout his life. “I’m not the least bit athletic,” Heather said. “I was an extremely clumsy child so I stuck to student council and signed up for the more – indoor type events.” Heather and her younger brother, Michael Sullivan, grew up in Putnam Valley, N.Y. about 50 miles north of New York City. She went to Catholic elementary school and high school, graduating third in her class at John F. Kennedy Catholic High School in 1994, where she was a member of the National Honor Society and class president. She did not seriously consider becoming a lawyer, although her mother was a court clerk and Heather often spent time watching her mother work in night court. Her father was a boiler inspector for the State of New York who often worked nights and weekends at other jobs to pay their school tuition. “When I was a kid, I wanted to be an archaeologist, but then I found out that meant digging in the dirt,” Heather said. “That wasn’t going to work for me. Everyone always told me to be a lawyer since I talked so much, but I didn't really know any lawyers personally so it wasn't something I thought was going to happen.” She graduated magna cum laude from the University of Albany in New York with a bachelor’s degree in history and had to decide what to do next. “I could wind up either going to grad school for history or I could go to law school and the law school was down the street. It was convenient,” Heather said. While at Albany Law School, Heather worked as an unpaid aide to New York State Sen. Suzi Oppenheimer, eventually assisting

quick Hits Favorite website(s): Lainey Gossip, Tom and Lorenzo, Go Fug Yourself and the New York Times Biggest pet peeve: People who park in front of the one or two diesel pumps and fill up with unleaded gas – when the unleaded only pumps are all free!! Favorite book: Anne of Green Gables Favorite quote: ”Confidence is just entitlement. Work hard, know your stuff, show your stuff and then feel entitled. Because confidence is like respect. You have to earn it.“ - Mindy Kaling (slightly paraphrased for a family friendly magazine) Favorite vacation spot: Anywhere with a beach or pool, a swim up bar and umbrella drinks Favorite restaurant: Bencotto Favorite food: Sushi with someone else doing the ordering Person you would most like to have dinner with: Tina Fey – and I would ask her to invite Amy Poehler, Julia Louis-Dreyfus, Mindy Kaling and Amy Schumer November/December 2015 SAN DIEGO LAWYER 19

2016 SDCBA President Heather Riley

quick hits continued

Something most people don’t know about you: I spent two weeks volunteering at Colonial Williamsburg in the summer of 1992. We did manual labor in steel-toed boots and heavy jeans in Virginia in the middle of July. We worked hard every day, all day, and it was one of the best experiences of my life. Favorite concert of all time: It's a tie – Debbie Gibson, Out of the Blue Tour at Radio City Music Hall in 1988, and Billy Joel at the Hollywood Bowl in 2014 Favorite time of year: Fall – I miss the apple cider donuts and the leaves changing colors Personal role model: My Mom. She is one of the smartest and most organized people I know. She would have been an amazing lawyer, but she did not get the chance to go to college, let alone law school. Item on your bucket list: Visit Egypt and see the pyramids Favorite app: Either Fitbit or Instagram. I am obsessed with the sleep monitor on my Fitbit app, and I am slightly addicted to Instagram. What would you be if you weren't a lawyer: A curator at The Costume Institute at The Metropolitan Museum of Art

20 SAN DIEGO LAWYER November/December 2015

her general counsel in most legislative matters. She had a full scholarship for law school, but she also worked in a bakery, a book store and a coffee shop to cover her living expenses. “I assumed I’d go into politics,” Heather said. “Being in Albany, I figured I would work for the New York state government or I’d move to D.C and I’d work in D.C. That’s where I saw myself going.” Heather first came to San Diego in March of 1999 and interviewed for an internship with the U.S. Attorney’s Office, where she eventually worked on a summer break from law school. “I loved San Diego but I remember getting off the plane and there was a rainstorm. I kept hearing, ‘Everybody get off the roads,’ on all of the television news reports,” Heather said. “I remember calling my parents and saying, ‘I don’t understand them – there’s no snow. What is going on?’ I did not think I could live here.” It was that summer that a friend introduced her to Jason, who was a graduate student at San Diego State University. “I thought she was pretty,” Jason said of their first meeting. “Now I know that she’s also got a great personality, a great sense of humor, and a great smile and very pretty blue eyes.” The couple maintained a long distance relationship while they looked for jobs on both coasts until winter weather gave them pause. “It was January in Albany and I was carrying six tons of law books across campus through the snow and I thought, ‘This is stupid, I can move to San Diego,’ Heather said. “Why on Earth am I looking for jobs in New York?’” She passed the bar exams in New York and California, but said the three-day ordeal of taking the California exam was a challenge. “That third day nearly killed me. I actually came down the stairs in my pajamas and told Jason that I wasn’t going, that I was going to move back to New York since I'd already passed that test,” Heather said. Jason insisted she go, drove her to the exam site, and waited outside to make sure she didn’t make a run for it. “I took the third day of the exam in my

pajamas,” Heather said. “I will forever be grateful that he put me in that car and made me go.” After finishing law school, Heather was hired by the law firm of Gatzke Dillon and Ballance LLP in Carlsbad to work on construction defect cases. She got the job after forming an unusual connection with Mark Dillon. “I had been a member of the Celtic Law Society at Albany Law, which provided an excuse to drink with other people of Irish descent,” Heather said. “Mark Dillon thought that was interesting and brought me in for an interview to find out what the Celtic Law Society was.” Heather eventually started handling projects involving the California Environmental Quality Act (CEQA), and in 2006, she moved to Allen Matkins in San Diego. The firm also has offices in Century City, Los Angeles, Irvine and San Francisco. Her career was sidetracked in 2008, during the Great Recession when there was little call for land-use lawyers. Heather was able to stay on at Allen Matkins, but as an attorney paid by the hour. “It was challenging, for sure, especially once I had the boys,” Heather said. “After two or three years, I was hired back as a part-time salaried employee.” In 2013, she was back to full-time status and this year became a partner at the firm. "I couldn't have done any of it without the support I get at home. Jason takes care of things there so I can get my work done and keep my crazy work schedule." Recently, Heather has been in the center of some of the biggest land-use issues in San Diego County, including the highly controversial One Paseo project in Carmel Valley proposed by Kilroy Realty Corp. Kilroy Vice President Jamas Gwilliam praised Heather for “being able to adapt in a very dynamic environment” with One Paseo. “She has a considerable amount of experience that she can pull from,” Gwilliam said. “She has tremendous relationships with the city and the real estate industry.” David Osias, managing partner at Allen Matkins, said Heather has a “stick-to-it-ness.” “She’s unflappable,” Osias said. “Heather’s the opposite of easily flustered.” Citing the One Paseo project as an example, Osias said “She just has a terrific way of keeping her eye on the big picture

2016 SDCBA President Heather Riley and dealing with whatever comes along.” Paul Borden, president and chief executive officer of HomeFed Corp., said Heather “has an unbelievable work ethic.” “She can get into an area of the law and work on a situation with us and get it done quickly and efficiently,” Borden said. “She’s a good lawyer, she knows her stuff and she does a good job.” Heather was invaluable in working with HomeFed’s Fanita Ranch project in Santee and its developments in Otay Mesa, Borden said. Marcela Escobar-Eck, principal of the Atlantis Group land use consulting firm, said Heather is “absolutely a rock star in my book.” “She is one of those people who’s just absolutely technically savvy, hard-working, no nonsense, no high drama and doesn’t get into the politics of things,” Escobar-Eck said. “If I called her up in the middle of the night and said, ‘Hey, I need your help,’ she would be there to help you and not ask you why.” On the city side, San Diego Deputy City Attorney Keely Halsey said, “I can count on her to be reasonable and to deal with an issue fairly.” “In my experience, she’s always been very forthright and professional,” according to Halsey. “That makes her very effective and a great advocate for her clients.” She is also a star when it comes to her professional industry affiliations. Borre Winckel, president and chief executive officer of the Building Industry Association of San Diego, said Heather has been instrumental in recruiting young professionals to join the association.

Sam, Murphy and Matt Riley On a personal level, Winckel said Heather was an adviser and mentor to his daughter when his daughter finished law school and was looking for her first job. “Heather kind of took her through what it’s like to be starting out as an attorney,” Winckel said. “I would recommend her to anyone. She’s just one of those gentle ladies.” Heather is a big reader and belongs to a book club, meeting at various restaurants once a month to discuss the latest book they’re reading. “We leave it to Heather to finish two books to our one book and she just keeps going,” said Janet Horn, a book club member and long-time friend. “I think she must have an unlimited reserve of energy,” Horn said. Heather said she prefers historical fiction and loves mysteries “but I will pretty much read anything.” “If I’m not doing anything else, I have

my head stuck in my Kindle,” Heather said. “When I interned for the U.S. District Court in the Southern District of New York, my judge told us to always have a book because law takes time. So I carry the Kindle everywhere. Jason bought it for me a couple of years ago. I think he regrets it. ” She also confesses to being “a pop culture junkie.” “I watch way too much TV and love to go to the movies,” Heather said. Her current favorites include “The Affair,” “Empire,” “Blind Spot,” “Fargo,” “Homeland,” “The Knick,” “Outlander,” “Game of Thrones,” “Agent Carter” and “Downton Abbey.” She also hosts an annual Oscar party with a group of her female friends and awards prizes to the person who guesses the most and the least amount of winners. “It’s always a big to-do,” said Heidi Berglin, who met Heather at their children’s pre-school and is a regular at Heather’s Oscar night. Pictured Left (L - R) Lexi Greene, Sam Riley, Emma Drake, Chance Gabriel, Seika Gabriel, Avery Hahn, Keila Gabriel, Vivian Hahn, and Matt Riley Below: Cul de sac kids with SnoCal Shaved Ice Truck

November/December 2015 SAN DIEGO LAWYER 21

2016 SDCBA President Heather Riley Berglin said several of the mothers from those pre-school days, including Heather, meet once a month over dinner to gossip and just let loose. “We talk about the kids, we talk about the husbands, we talk about life in general. We laugh our tails off,” said Berglin, adding that Heather chips in with some of the funniest stories, none of which Berglin would repeat. “She adds a note of funny to everything, just the way she tells stuff,” Berglin said. Community is a key component of Heather’s personal life. Weekends are spent hanging out with family and friends in their 4S Ranch cul-de-sac, where Matt and Sam are just two of the nineteen school age kids on the block, almost all of whom are girls. The whole group – parents, kids, and pets – play together often, and choose to spend a lot of time with one another. “We really lucked out,” said Heather. “Our cul-de-sac is our second family – really great people who we enjoy spending time with and whose kids we will watch grow up alongside our boys.” Heather’s fun-loving spirit, can-do12:09 PM SDLawyer_2015_05_Layout 1 9/23/15 attitude, and “get it done” mentality

will take her far as Bar President. Her professional community will benefit from her leadership just as her personal community does in her day-to-day life. Currently, she volunteers on a number of

Business Trial Lawyers, the Building Industry Association of San Diego County, Rachel's Women’s Center, Run Women Run and Allen Matkins' Community Outreach Committee. Heather credits her parents for her

“She is one of those people who’s just absolutely technically savvy, hard-working, no nonsense, no high drama and doesn’t get into the politics of things,” Escobar-Eck said. “If I called her up in the middle of the night and said, ‘Hey, I need your help,’ she would be there to help you and not ask you why.” - Marcela Escobar-Eck projects, such as weekend beach cleanups, and takes leadership roles in a variety of organizations. She has been a member of the Bar Association’s Board of Directors since 2013, is a member of the Lawyers Club of San Diego, Page 1 the Louis M. Welsh Chapter of the American Inns of Court, the Association of

involvement in so many volunteer activities. “They were out a lot, doing things that were important to them civically and community-wise,” Heather said. “I think we should all be active in our community and I want my boys to see me doing what I do and feel the same.”

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By Jim Crosby and Jeremy Evans Photos by Jason de Alba

ABOUT THE PARTICIPANTS Pictured above, from left to right Radmila Fulton is a solo practitioner who is certified as a bankruptcy specialist by the State Bar of California. Radmila has been in practice for 36 years. Thomas Warwick, Jr. is a founding member and criminal defense attorney with Grimes & Warwick. He has been in practice for 42 years. Hali Anderson is an associate with Sheppard Mullin Richter & Hampton LLP. Hali practices labor and employment law and has been in practice for seven years. Anton Vialtsin is a criminal defense and business attorney at LAWSTACHE. He has been practicing for two years. Jim Crosby is a partner with Henderson, Caverly, Pum & Charney LLP. Jim is a business trial lawyer and has been in practice for 32 years. Jeremy Evans is Managing Attorney with California Sports Lawyer and practices entertainment and sports law. He has been in practice for three years.

Thank you to SDCBA Member Benefit Partner Thorsnes Litigation Services for providing a court reporter and transcript for this roundtable discussion. 24 SAN DIEGO LAWYER November/December 2015

Continued from page 7 Hali Anderson (HA): To me, you’re correct. Work-life balance is really about flexibility; you can do other parts of your life, but you better be prepared to work later on. I think everybody finds out that you can’t have it all, and a lot of younger attorneys are okay with having life take the bigger portion of that balance. I think law firms are trying to catch up with that. For example, I’m on a 70 percent schedule that is working pretty well. My firm also has a new part-time partner option. I think if you don’t have that flexibility, your associates are going to go somewhere that offers that, or go into business for themselves. Radmila Fulton (RF): I don’t think it’s a question of being more honest. I think it’s a statement that [newer attorneys] are more vocal and that they are given those opportunities. When I started practicing, you couldn’t be vocal about it. As a woman, you didn’t have that opportunity or the flexibility. And I think over time that that has been an improvement in the practice. I think that we veteran attorneys wanted work-life balance. We just juggled without saying it. We all want it and it was just a

matter of how we expressed it. Thomas Warwick, Jr. (TW): When I first started out, you just understood that you had to do whatever was necessary to do the best job for the client. There was a managing partner of a firm who used to walk around at 4:30 on Friday afternoons sticking his head in everybody’s office just to make sure they were there. I don’t subscribe to that. I subscribe to if you get your work done, then the time is yours. If you need to get work done, then the time is the client’s. Jim Crosby (JC): I would describe it that way too. It’s not work-life balance. It’s kind of juggling everything that you think is important. I don’t know if that changes in young or old. Anton Vialtsin (AV): I think it also depends whether you work for yourself or a big firm. If you’re on your own, it’s your decision. It’s just how you want to manage your time. TW: But maybe you work too hard and too long, but you’ve been able to benefit that person who’s placed that trust in you, it is one of the most satisfying things that I’ve experienced in my life. HA: I agree. In that model though, what

about your private life? Yes, there’s always a client to be served, and sometimes I have to work on weekends. Cancel trips. But at what cost to your private life, your family? TW: I don’t want to take away from the quality of your life, but the quality of my life has been so dramatically enhanced by what I’ve been able to do. My solution was that I’d say, I can’t do your case. And I would refer them to the best attorneys that I could think of. I take less cases so I have time for my family. JC: Maybe the difference is that the older lawyer is going to say, I’ll take the case. And then once the senior partner walks out or your partner walks out, you sit there and go, how am I going to get this all done? And the young lawyers are being a little more honest and saying, I don’t have time to have to take that case. I’m not going to tell you yes and then kill myself. Maybe that’s the difference. AV: A lot of my friends, I think, that work for bigger firms, are very overworked. And I don’t think their boss really cares, because they know they have so many options – they can still get someone else who is just as qualified. There’s just too many attorneys at the same time.

New attorneys & "Entitlement" JC: An older lawyer that I know was complaining about young lawyers and saying that they all have a sense of entitlement. His statement was: “They all got trophies for everything, so they are entitled and everything is a success.” I tend to think that’s a little unfair. HA: I think that younger attorneys – if we’re doing a good job, we probably want to hear something about it. I think that younger attorneys want to feel appreciated. Jeremy Evans (JE): I think with any generation maybe some people feel entitled and some do not. I feel like every generation’s got some folks who want to work hard and some do not. I do not think

it is a generational thing. TW: I would maybe describe it a little bit differently. I’ve heard some younger people say, “I don’t want that much responsibility.” Responsibility is a form of self-worth that other people place that on you. That may be what some people feel rather than they have a sense of entitlement. They have a division of how far they want to give of themselves to another person versus maintain their own quality of life.

JE: I have a website, I blog, and I do all that stuff. Truthfully, I hardly get any business from that. Online presence matters in the sense that somebody can verify that you have a presence. They can see your picture and go, [jokingly] "Hey, he’s got a suit on, he must be a good attorney." Still 99 percent of my clients come from word of mouth. Those are the best clients.

New Marketing Methods: Do Older Lawyers Feel Threatened?

AV: So don’t you think nothing’s changed? It’s just your reputation – people still know ultimately whether you’re a good attorney or not, whether you write it online or say it verbally.

JC: If you’re good at it, you can self-publish. You can have blogs. You can have websites. It’s kind of a new way to do business and to generate business that wasn’t around when I came out.

RF: Let’s go back pre-Internet. People looked up attorneys in the Yellow Pages as opposed to getting a referral from another attorney. So I don’t see that as any different. It’s just a different medium.

Do you think that’s threatening to older lawyers?

Generalization: Old School, or New School?

RF: I think you’re only as young as the technology you know, and I want to be young. So I enjoy learning from the younger people how you do stuff.

JC: There are tons of lawyers who are being forced, either by choice or by the economy, to go out on their own. And they’re generalists. When I went out on my own when I was young, I took everything, now they’re taking everything. Do you think that’s correct, and do you think there’s any pluses and minuses to it?

I think that if you want to move forward in today’s legal practice, you have to have an online presence. So I’m not threatened by it. I just need someone to teach me more about it. AV: One businessman told me before that you’re never in competition with anyone because there’s only one of you in town.

TW: It’s kind of old school and stuff. When I started practicing, I was a generalist. The fact that some young lawyers are going into that by necessity may make them better lawyers. November/December 2015 SAN DIEGO LAWYER 25

lawyers – and, now older lawyers, when I was a young lawyer – at times who would burn bridges and get into personal confrontations with the opposing party for no good purpose.

I think that we veteran attorneys wanted work-life balance. We just juggled without saying it.

There’s an old adage, “Wisdom is what you get when you don’t get what you want.” Unfortunately, I’ve gotten a lot of wisdom over the years, and hopefully, I can apply it, and that’s one thing I try to pass on.

Radmila Fulton

JE: One of my mentors really pushed me to specialize. It has helped me because I am able to go in and say, I know what I am doing in this field. And I am practicing the area of law that I really enjoy. Why would I go out on my own and practice something I could care less about? But I do think that if you specialize too much you lose out on some lawyering skills – how to talk to people, how to be in court. I was lucky enough to do a little bit of criminal defense when I first started and to have mentors so I can keep up on those skills.

attorneys, sometimes I get, “You’re a young attorney, what are you going to tell me that I don’t know?” Maybe I’ll suggest something that you never thought about. But I don’t think it’s generational. I think it goes back to just who you are. I think there’s also younger attorneys that don’t want to listen to older attorneys, but if you want to make the profession better and yourself better, you have to listen to the whole community regardless of age. JE: Younger attorneys can teach seasoned attorneys the use of social media, the use of online marketing, things that, I think, can benefit their practices.

RF: I think being a generalist also helps you hone in on your particular interest. I started as an independent contractor doing a lot of different areas of the law, and then I started doing bankruptcy and said, "Huh, I like this," and that’s what I’ve done for 35 years.

And I don’t know if this is a generational difference, but I think we can talk to young lawyers about hustling. Recently I had a young lawyer tell me, “I can’t wait until I’m your age and then the cases just kind of walk in the door.” I just started laughing. I said, “What are you talking about? You got to be out hustling for work all the time!”

I think if [younger attorneys are] doing a good job, we probably want to hear something about it. I think that younger attorneys want to feel appreciated. Hali Anderson

Words of Wisdom from Both Sides JC: Young lawyers: What do you think a 30-year-old lawyer can teach a 60-year-old lawyer that the 60-year-old lawyer is not hearing? HA: I would say the value of diversity. The concept that there’s only one way to be a lawyer – your private life takes a back seat to your work – that wouldn’t attract me, and I think it wouldn’t attract a lot of other women attorneys and some male attorneys as well.

JC: I think one thing that comes with age and experience is judgment. I think that most young lawyers are as smart as me, probably smarter. But I think that older lawyers can help younger lawyers develop judgment about their cases. And I think that’s something that only flows one way just because of the difference in age and experience.

JC: What can the 60-year-old lawyer tell the 30-year-old lawyer that’s still relevant today?

If you want to attract a diverse body of attorneys, I think there is a different way to look at things by realizing that it’s okay that not everybody wants that same thing.

TW: One of the great confidence builders between a client and his attorney is the ability to be a good listener. And I see that as a really waning art form in our profession.

AV: When I’m more vocal with some

The other thing is I see many young

Does a Divide Exist? JC: After all this conversation, do you think that there's a big generational divide, something now going on that hasn't gone on before? Or do you think it's always been this way with young and old? HA: I do think there is a generational divide. I think it’s just that kind of mix of kind of the old school generation saying, you put an

Continue on page 29 26 SAN DIEGO LAWYER November/December 2015

SKIMMING THE SURFACE IS FINE UNTIL A DEEPER DIVE IS REQUIRED. I think that we veteran attorneys wanted work-life balance. We just juggled without saying it. Radmila Fulton

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Continued from page 26 honest day’s work, you’re lucky to have a job. Of course, we’re all lucky to have jobs.

If you want to make the profession better and yourself better, you have to listen to the whole community regardless of age.

And the younger generation that’s kind of asking the question of, what do I get out of it? I’d rather travel the world, and I can do that if I work this amount. Why should I spend my whole life chained to the desk? JE: I think there is a generational divide. I think that technology has the ability to bridge that gap. I also believe that the generation divide is a good thing because you can look at the older generation and say, what can we learn from those folks. AV: The only difference I see is technological, and I think I’m kind of lucky because I’m sort of old school and I like talking to people in person. RF: I think that the more things change, the more they remain the same. Every generation, there’s going to be a generational divide, and it’s just the new young does and bucks coming in and the veteran generation being set in their ways. I think that’s just the way that it is, but that technology brings us together and makes it a better practice.

Anton Vialtsin

things is the hourly billing model. I think that the demands of younger lawyers, and of clients, to a certain extent, forcing some balance between work and life is ramping up against 2,000 hour billing requirements of big firms. So you’re seeing all sorts of press about the hourly billing model going out the window, but you don’t see a lot of firms changing it.

Final Thoughts

law dramatically changed in our country. So some of the great thinking that comes in the legal profession comes from very young, unfettered by “we’ve always done it this way” people. And that type of thinking will continue to evolve our system and make it demonstrable. JC: Thank you all very much. Interestingly enough we didn’t talk about text and e-mails.

HA: Going back what can young attorneys learn from veteran attorneys – judgment, strategy, experience – it’s invaluable. As you mentioned, I can research, things might make sense to me, but when I can go to a veteran attorney and they say,

When I started practicing, I was a generalist. The fact that some young lawyers are going into that by necessity may make them better lawyers. Thomas warwick, Jr.

As I said earlier, I think the negative of technology is it isolates attorneys, and that the interpersonal skills are really what add to the quality of an attorney, and that technology takes that away.

“Have you thought about this?” That is really invaluable. There’s definitely a wealth of knowledge that we can learn from a veteran attorney.

JC: I think one of the biggest examples of a generational divide and how it’s changing

TW: Up in Seattle, this young attorney, fairly young attorney, took two cases to the United States Supreme Court and got the November/December 2015 SAN DIEGO LAWYER 29

Everything Old is New Again Hon. Lorna Alksne and Hon. David Gill weigh in on “old school” v. “new school” practices and developments in court By George Brewster, Jr. and Christopher Todd

Evolving technology continues to affect the practice of law – in good ways and bad, depending who is asked; here, we asked San Diego Superior Court judges Lorna Alksne and David Gill just that.

George Brewster (GB): Is technology getting in the way of the practice of law and presenting to a jury, or is it helpful?

Judge Alksne (JA): I think everything that’s good about it also has a bad side. For example, a really good opening statement with a PowerPoint is very powerful for the jury. But likewise, a lawyer had an opening statement prepared on the PowerPoint and the computer wouldn’t work. So this lawyer offered, “That’s all right, Judge, I’ll do it without it.” Then, the lawyer was flustered, and the opening statement just wasn’t as powerful as it might have been. My advice would be that while technology can be very helpful, it can also, if you’re not prepared for a backup to the problem, it can be very damaging to your case.

Judge Gill (JG): In closing statement and out of the presence of the jury I say, “What are you going to use? Are you going to use demonstrative aides? Have you shown them to the other party, and if you have a PowerPoint, have you shown that to the other side?” Because I agree – particularly in closing argument. You have the jurors with you all the way and then there is a big objection, and then you have to take half-an-hour out and then the effectiveness is totally destroyed. So, I require them to do that and I put it on the record. I tell them, from the standpoint of the jurors, it’s going 30 SAN DIEGO LAWYER November/December 2015

to really be distracting to them if we have some interruption.

GB: Our younger jurors are used to high tech; they are working on their phones a lot, they are expecting a lot of things that are visual and quick.

JA: You know, in voir dire lawyers now ask, “Have you all seen CSI?” JG: The CSI effect. The prosecutors are really worried about the CSI effect. JA: You’ve seen "Crime Stoppers" or all these shows and if I don’t have any DNA evidence, are you still going to be able to follow the law? That question probably wasn’t asked 20 years ago. That question is now being asked in every single case in the beginning. JG: Prosecutors call some of the lab people to explain why we don’t have some of this because they know the jurors are going to expect that it’s going to be there. And I think from some of those shows, you get the idea that there’s all these wonderful fingerprints, all over everything. The expert will come and say that that’s rare. That they don’t have useable prints. JA: And so, I think you’re right, the jurors are expecting to see it like television. [Cell phone] technology is also coming into evidence a lot more.

GB: Is the old school way of trial work still the proven way?

JA: The best thing we do that’s old school

is we still use stickies for jury selection. The lawyers that come into my courtroom try to use new-fangled computer programs. I am still old school when it comes to jury selection. I have all my little yellow stickies. I take them from Point A to Point B. I do all my challenges. I never get confused. Seems to work fine. But I do hear that a former D.A. has come up with a computer program for how to pick a jury and it sort of acts like you swipe it off and you get rid of that juror. But on an iPad. But I haven’t seen it. [Editor’s Note: It is an Apple product called iJuror]

GB: So, Judge Gill, what do think is still the most effective old school trial approach?

JG: Just look the jurors right in the eye and tell them the story. Tell them the story and be so well-prepared that you don’t have to depend on an iPad. I still think that’s one of the most effective. GB: How about new school? Do you think there is something you didn’t have available to you when you were trying cases that is now out there and you would have liked to have used?

JG: I guess the big screen and the ELMO and things like that. Because I do believe we learn more visually than we do orally. And really, projection so you can better help the jurors visualize. JA: One of the things technology has really helped is that I know where all the lawyers are if I have a busy calendar. They text or e-mail my clerk and there’s no wondering where [they are], because they’re all in

contact constantly. I would say technology has improved the ability to run a busy calendar.

JG: It is also helpful in locating jurors sometimes. We’re all sitting around ready to start and Juror No. 9 is not here, so my clerk gets on her cell phone and the juror is on the trolley. And also, the jurors can contact the court now that they have cell phones and they’re much more inclined to let us know: "Hey, I’m hung up in traffic. I’ll be down there in five minutes."

Hon. Lorna Alksne (left) and Hon. David Gill (right)

Chris Todd (CT): What about the issue of mobile phones and the ability to Google things in the blink of an eye? JA: We all give the admonition while reading our jury instructions. It says don’t do any independent research, but they have little mini computers right there in their laps. I haven’t had any trouble with any jurors actually doing research during deliberation, or at least no one has brought it to my attention. I have had somebody in the audience texting what the witness was saying out to the next witness.

me that that’s really essential, I’ll let them bring it.

GB: Do you see a difference in the way the new generation is trying cases versus the older generation? Can you tell a difference in approach, in attitude in the courtroom? JG: No.

unintentional uses of the devices now because they are so ubiquitous and they are so convenient for us all, you can kind of do it without thinking.

JA: Hard one to touch, but the only thing I would say is that newly sworn members of the bar – regardless of age – try cases a little bit differently than seasoned members that have been a member of the bar for a long time. I don’t know that it would have to do with new school or old school.

JG: Yeah. I also tell them that I am sure that

CT: It has probably been that way forever.

CT: I think there could even be just

none of you are going to intentionally try to sabotage the process here, but it’s just part of your daily life routine.

JA: I don’t know if this is old school, but rarely in a criminal trial do I see any real evidence. I just see pictures of it. JG: That’s low-tech just to take a picture of it, I guess, but that’s a good advancement.

JA: And it doesn’t all collect in the courtroom. We used to see the money, the drugs, the weapon, but now anything that we see, we just see in a picture.

CT: And defense counsel has already screened it for authenticity and it’s not an issue by the time it gets to the trial stage?

JG: Probably. Again, back to the point we made earlier, you don’t want to be too reliant – if your trial preparation is not as thorough as it should be because you are over-relying on some of this technology.

GB: That might be true. The baby boomer types – me [laughs] – I would never go in without some paper back-up. Because I’ve even had ELMO’s go out. But some of the newer lawyers who are so computer savvy and tech-savvy, may be ignorant, really, of that potential.

JA: I think that should be a theme of this conversation. Have a backup plan. GB: Any closing thoughts on the trial

JA: Right.

process, old or new school?

GB: But you don’t get the flash of the knife

JA: With E-filing, we’re moving in that direction, so ultimately, we’re going to be a paperless court.

in front of the jury.

JG: When I greet the jurors, I say this is not going to be easy. And, I’m here to help you. So, if we all work together and do our best, we will achieve substantial justice and we can have some sense of pride in what we accomplish. Whatever the result is in any particular case, if you do your best and you can have some confidence in the result, that’s a moment to be treasured. George Brewster, Jr. (george.brewster@ is Chief Deputy with the Office of County Counsel) and Chris Todd (ctodd@ is a partner with Wingert Grebing Brubaker & Juskie LLP.

About the Interviewees:

Judge David M. Gill has been on the bench 41 years and is the longest serving Judge in San Diego history. He was appointed to the Municipal Court in 1974, and was elevated to the Superior Court in 1979. Prior to taking the bench, Judge Gill was in the US Army JAGC (1960-63), a Deputy City Attorney (1963) and a Deputy DA (1963-67) before entering private practice (1967-74). He received his JD from Stanford and an LLM from Georgetown. He is the James Bond of Criminal Specialists, holding license number 007. Judge Lorna A. Alksne has been on the bench 10 years. She was appointed commissioner for the San Diego Superior Court in 2001 and was elevated to judge in 2005. Prior to taking the bench, Judge Alksne was in private law practice from 1993-2000 and was Civil Counsel to District Attorney, Paul Pfingst, in 2001. She received her JD from the University of San Diego, School of Law and her BA in International Relations from Mills College.

JG: Right. Well, sometimes if they convince November/December 2015 SAN DIEGO LAWYER 31

1. Publication title: San Diego Lawyer. 2. Publication number: 1096-1887. 3. Filing date: October 1, 2015. 4. Issue frequency: Bimonthly. 5. Number of issues published annually: 6. Annual subscription price: $10 member/$50 non-member, 7. Complete mailing address of known office of publication: 401 West A Street, Suite 1100, San Diego, CA 92101-7923, San Diego County. 8. Complete mailing address of headquarters or general business office of publisher: 401 West A Street, Suite 1100, San Diego, CA 921017923. 9. Full names and complete mailing addresses of publisher, editor and managing editor. Publisher: Ellen Miller-Sharp, 401 West A Street, Suite 1100, San Diego, CA 92101. Editor: Edward McIntyre, 401 B Street, Suite 1200, San Diego, CA 92101; Christine Pangan, 1605 9th Avenue, San Diego, CA 92101. Managing Editor: Jenna Little, 401 West A Street, Suite 1100, San Diego, CA 92101. 10. Owner: San Diego County Bar Association, 401 West A Street, Suite 1100, San Diego, CA 92101. 11. Known bond holders, mortgagees and other security holders owning or holding 1 percent or more of total amount of bonds, mortgages or other securities: None. 12. Has Not Changed During Preceding 12 Months. 13. Publication title: San Diego Lawyer. 14. Issue date for circulation data below: September/October 2014—July/August 2015. 15. Extent and nature of circulation: Membership/trade publication. a. Total no. of copies. Average no. copies each issue during preceding 12 months: 8,636. No. copies of single issue published nearest to filing date: 8,250. b. Paid circulation. (1) Mailed outside-county mail paid subscriptions stated on Form 3541. Average no. copies each issue during preceding 12 months: 391. No. copies of single issue published nearest to filing date: 378. (2) Mailed in-county paid subscriptions stated on Form 3541. Average number copies each issue during preceding 12 months: 8,096. No. copies of single issue published nearest to filing date: 7,771. (3) Paid distribution outside the mails including sales through dealers and carriers, street vendors, counter sales and other paid distribution outside USPS. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (4) Paid distribution by other mail classes through the USPS. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. c. Total paid distribution. Average no. copies each issue during preceding 12 months: 8,487. No. copies of single issue published nearest to filing date: 8,149. d. Free or nominal-rate distribution. (1) Outside-county copies included on Form 3541. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (2) In-county copies included on Form 3541. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. (3) Not applicable. (4) Free or nominalrate distribution outside the mail. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. e. Total free or nominal-rate distribution. Average no. copies each issue during preceding 12 months: 0. No. copies of single issue published nearest to filing date: 0. f. Total distribution. Average no. copies each issue during preceding 12 months: 8,487. No. copies of single issue published nearest to filing date: 8,149. g. Copies not distributed. Average no. copies each issue during preceding 12 months: 149. No. copies of single issue published nearest to filing date: 101. h. Total. Average no. copies each issue during preceding 12 months: 8,636. No. copies of single issue published nearest to filing date: 8,250. i. Percent paid. Average no. copies each issue during preceding 12 months: 100%. No. copies of single issue published nearest to filing date: 100%. 16. Electronic copy circulation: Not applicable. a. Paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. b. Total paid print copies + paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. c. Total print distribution + paid electronic copies. Average no. copies each issue during preceding 12 months: Not applicable. No. copies of single issue published nearest to filing date: Not applicable. d. Percent paid. Average no. copies each issue during preceding 12 months: Not Applicable. No. copies of single issue published nearest to filing date: Not applicable. 17. Publication of Statement of Ownership for a general publication is required and will be printed in the November/December 2015 issue of this publication. I certify that all information furnished is true and complete. Ellen Miller-Sharp, Executive Director, San Diego County Bar Association

Photo by Barry Carlton

Statement of Ownership, Management and Circulation (required by 39 U.S.C. 3685).


Time for a Short Story The history of the clock at 220 West Broadway By George Brewster, Jr.


ime for the old clock is running out. If you have been in the lobby of the old courthouse (220 West Broadway), you may at one time have stopped and looked at the large clock. Maybe you read the plaque. But more than likely, you just walked on by. Let’s go back in time. Where the current courthouse stands (for now) is the site of the first downtown courthouse, designed in 1871. It didn’t have a clock tower. However, the courthouse was soon thereafter remodeled and enlarged, with a tower clock added and surrounded by statuary and topped with Lady Justice. (The Lady Justice statue now sits in the lobby area of the San Diego History Center museum in Balboa Park; in 1999 it was temporarily placed in the lobby of the Hall of Justice to commemorate the bar’s centennial). The clock was manufactured by Seth Thomas, a Connecticut company founded in 1813 and well-known to clock enthusiasts; their clocks have adorned courthouses, schools, churches and city halls all over the world. According to research by clock collector Ian Roome, 137 Seth Thomas tower clocks were made for California customers between 1872 and 1942, when the company closed its clock tower department. Just a small number of those clocks still exist. The San Diego clock tower went up in 1890, and was designed to strike a two-anda-half ton bell every half hour (counting out the hour on the hour). It was too loud, and disturbed court proceedings, nearby hotel guests and was sometimes mistaken for the fire bell. After experimenting with a bell curfew from 6 p.m. to 8 a.m., the striking mechanism was shut down completely in 1919. During its tenure atop the old courthouse it was maintained by local jeweler M. German for $100 a year. In 1939,

the clock bell was moved to Mission San Luis Rey in Oceanside (due to concern about the weight of the thing, hovering over the courthouse and a fear of it crashing through the ceiling), and Lady Justice and the statues surrounding the tower were put into storage. The rest of the clock stayed put, until the old courthouse was demolished in 1959 and the clock movement placed into storage. The “new” courthouse (the one now being replaced by the towering second Hall of Justice) went up in 1961. The old clock was forgotten. In 1980, the San Diego County Bar Association (and likely at the urging of Judge Bill Yale, who pushed to preserve the stained glass windows from the old courthouse – and which decorate the HOJ today) commissioned the National Association of Watch and Clock Collectors, Chapter 59 to restore the old clock. The movement was preserved, and the outer clock face and casing were rebuilt; and an automatic rewind motor system was added (otherwise someone would have to wind the clock several times a day). Chapter 59 still services the clock, sitting in the lobby of the old courthouse. It keeps pretty good time. But as noted, time is running out for the old clock. The State has no plans to move it or to preserve it; when the courthouses were transferred to state ownership, the clock was not part of the deal. Hence, it is owned by the County of San Diego. As of this writing, efforts are underway to find a place for the 125 year old timepiece of history. Maybe it will end up in the County Administration Center, which when originally planned was going to include a court complex. Or maybe it will find a spot at the County Operation Center. Hopefully it will land somewhere. It would otherwise simply be a waste of time. George Brewster, Jr. (george.brewster@sdcounty. is Chief Deputy with the Office of County Counsel. November/December 2015 SAN DIEGO LAWYER 33

HUMAN TRAFFICKING HITS HOME A critical role for the legal community in the fight against human trafficking in San Diego By Jamie Quient

Sarah’s Story. Sarah1, a quintessentially average teenager, grew up in a loving, two-parent home, lived in a safe neighborhood, went to a good high school. Smart and caring, with a sunny personality, positive outlook and beaming smile, she dreamt large about tomorrow. Until a guy she considered her “boyfriend” derailed her future at age 16. He trafficked her into the sex industry.


We changed Sarah’s name to protect her privacy.

34 SAN DIEGO LAWYER November/December 2015


scaping her traffickers at 23, Sarah made it to GenerateHope, one of only a few local recovery programs in San Diego for sex-trafficking survivors. From 2007 to 2015, an estimated 1,766 trafficking victims each year had contact with San Diego law enforcement; an additional 120 domestic violence cases involved suspected sex trafficking.2 This, however, represents only 15-20% of the estimated victims just in San Diego County — a total between 8,000 and 11,000.3 Yet the county has only 29 beds specifically for trafficking victims — with none for juvenile, gay or transgender victims.4 Sarah was more than fortunate. Susan Munsey, founder and Executive Director of GenerateHope, estimates that it turns away one or two victims every week. While at GenerateHope, Sarah breezed through her GED exams. Eager to start community college in the fall, she hoped one day to attend medical school; eventually, become a doctor. But lingering criminal charges from when she was trafficked hold her back. Shockingly, Sarah’s story has become almost commonplace.

Human trafficking is the world’s fastest growing criminal enterprise — traffickers reap an estimated $32 billion annually.5 Federal law defines victims of human trafficking to include: children involved in the sex trade; adults 18 or over who engage in commercial sex through force, fraud or coercion; and anyone forced into labor or services — e.g., domestic workers trapped in a home or farm-workers forced into labor. SEX TRAFFICKING IN SAN DIEGO. Worse, sex trafficking happens in our backyard — to San Diego kids.6 San Diego ranks among the FBI’s top 13 cities for high-intensity child prostitution; labor trafficking poses similar issues. Sex trafficking has become San Diego’s second largest underground economy after drugs, representing an estimated $810 million a year.7 Most of us fail to realize that about 90% of San Diego’s victims are domestically trafficked — not brought here from other countries.8 Even more disturbing, 15 is the

average age a child enters into commercial sexual exploitation.9 Dr. Ami Carpenter, at University of San Diego’s Joan Kroc School for Peace Studies, and Dr. Jamie Gates, Director of Point Loma Nazarene University’s Center for Justice and Reconciliation, recently completed a twoyear research project on the intersection between gangs and the illicit sex industry in San Diego. Their research confirmed what anti-trafficking advocates have known anecdotally for years: traffickers and their proxies recruit kids in middle and high schools across the county. Although certain risk factors increase the likelihood for some individuals being trafficked, perpetrators do not discriminate by race, ethnicity or socioeconomic status. Drs. Gates and Carpenter uncovered evidence of sex trafficking throughout the county, with suspected trafficking of minors at 20 of 20 schools and confirmed cases of sex trafficking in 18 out of 20 schools. Their gut-wrenching findings highlight the critical need for increased anti-trafficking education and prevention both in our schools and throughout the community. LAW ENFORCEMENT. San Diego law enforcement has stepped up its investigation and prosecution of sex trafficking cases. From 2006 to 2012, federal prosecution of human trafficking and pornography cases increased 545%10 and in 2013, the Southern District of California was the third in the nation (tied with the Northern District of Georgia) for initiating child sex-trafficking prosecutions.11 Then, in January 2015, San Diego created a task force that brings 15 local and federal law enforcement agencies together to better identify, and then rescue victims and also prosecute traffickers.12 When asked about this dramatic increase in sex trafficking cases, Assistant United States Attorney Alessandra Serano explained that, among other reasons, gangs have learned that sex trafficking is a renewable income source. As Serano said, “You can

“Measuring the Nature and Extent of Gang Involvement in Sex Trafficking in San Diego.” Award No. 2012-R2-CX-0028, awarded by the National Institute of Justice, Office of Justice Programs, U.S. Department of Justice. 3 Id. 4 Id. 5 “Human trafficking: organized crime and the billion dollar sale of people.” United Nations Office on Drugs and Crime. July 19, 2012. 6 For a comprehensive report on sex trafficking in San Diego, see “How girls are lured in to prostitution,” by Kristina Davis, The San Diego Union-Tribune, November 1, 2015, p. 1. 7 “Measuring the Nature and Extent of Gang Involvement in Sex Trafficking in San Diego” supra. 2

only sell a drug one time, but you can sell a girl over and over again.” A perfect storm of relatively low risk, high rewards, a seemingly endless pool of victims, and intensive recruiting. Victims like Sarah, who manage to escape their perpetrators, face a long road to recovery. As Munsey explained, “These individuals have suffered extreme trauma and violence. Survivors often suffer from depression, anxiety and post-traumatic stress disorder akin to the mental health issues our returning veterans from Iraq and Afghanistan face.”

Absent a clean slate, a victim risks forever bearing the brand “prostitute” or “criminal,” when we should see them as survivors and ultimately thrivers. LEGAL ENTANGLEMENTS. When survivors are finally ready to re-enter society and restore their lives, they face a broad range of legal issues. Some, like Sarah, have outstanding criminal charges they must resolve; unless expunged, criminal records can haunt survivors the rest of their lives — histories that hold them back and prevent them from realizing their potential and productively contributing to the community. Past convictions can bar decent employment, hinder access to public housing, impede securing financial assistance or getting into higher education; they can also result in mistreatment, or worse, further exploitation. Absent a clean slate, a victim risks forever bearing the brand “prostitute” or “criminal,” when we should see them as survivors and ultimately thrivers.

Id. Id. 10 Morgan, Greg. “Child sex trafficking, pornography cases up 545%.” San Diego Union-Tribune. August 23, 2012. 11 “Fourfold Increase in Prosecutions of Child Sex Trafficking Crimes Since 2008.” TRAC Reports. http:// 12 Littlefield, Dana. “Task force to combat human trafficking.” San Diego Union-Tribune. January 20, 2015. 8 9

November/December 2015 SAN DIEGO LAWYER 35


All people deserve justice.


That’s why the San Diego County Bar Foundation supports more than 40 local legal aid and public interest organizations. And now is the time for you to help. We are asking you to please “Give An Hour” and donate the equivalent dollar amount of one hour of your billable time. Since time is money and we know you’re busy and may not have the time to give, please consider a gift of money.


Elderly Refugees victims of


Domestic Violence

Give us your hour, your minutes, your heart. the


With your support, the San Diego County Bar Foundation has granted more than $2,000,000 towards providing access to justice for the underserved in San Diego. Your contribution will help close the justice gap in San Diego.

To give an hour, visit

those in need of

Representation 401 West A Street, Suite 1100 San Diego, CA 92101 619-231-7015 36 SAN DIEGO LAWYER November/December 2015

Other survivors face serious family law issues; they need help with child custody or to divorce their perpetrator, or a temporary restraining order to protect themselves and their children from future harm. Trafficking victims in the United States as a consequence of sexual exploitation, but without legal status, may be eligible for special immigration visas called T and U Visas. Trafficking victims may also be eligible for criminal restitution damages and civil remedies; but they need lawyers to help obtain relief. THE LEGAL COMMUNITY. In May 2014, Lawyers Club of San Diego launched its Human Trafficking Task Force to engage and empower the legal community to take an active role in the fight against human trafficking in San Diego. In 18 months, the Task Force has trained over 185 attorneys, judges, and law students and reached another 600 community members through its public outreach efforts. After assessing the current services available to victims, and their needs, the Task Force focused on legal services for human trafficking survivors. Currently, the only legal provider with services dedicated specifically to human trafficking victims is Casa Cornelia Law Center, which works with volunteer lawyers to assist labor trafficking survivors apply for T and U visas. Casa Cornelia trains its attorneys and closely supervises them to enable even those without any immigration law experience to handle these cases. Any lawyer interested in volunteering for Casa Cornelia should contact Carolina Martin Ramos, Director of the Casa Cornelia Human Trafficking Program at

services this population needs. Accordingly, the broader legal community has a vital role to play in the fight against human trafficking — to arm lawyers with the skills necessary to assist trafficking victims navigate the legal system and end the cycle of exploitation. In addition to providing legal assistance, every San Diego lawyer can participate in the fight against human trafficking by volunteering time or donating money to local non-profits serving survivors. Or introduce your book club to a work about human trafficking — Runaway Girl by Carissa Phelps and Larkin Warren, Girls Like Us by Rachel Lloyd, or Walking Prey How America’s Youth are Vulnerable to Sex Trafficking by Holly Austin Smith — or organize a documentary film screening with a group of parents or neighbors to help raise awareness about sexual exploitation — Not My Life, Chosen, In Plain Sight or A Path Appears would be good candidates. Finally, consider working with the Task Force to organize educational training for parents and teachers at your child’s school, your place of worship, or another community group. Kimberly Jones, Co-Chair of the Task Force’s Community Outreach Subcommittee (, will gladly help anyone interested in organizing a training event. For more information about the Task Force itself, please visit Jamie Quient ( is an Associate at Procopio, Cory, Hargreaves & Savitch LLP and the Co-Chair of the Lawyers Club of San Diego Human Trafficking Task Force.

Although Casa Cornelia provides a vital service to trafficking survivors, immigration assistance is only a small sliver of the legal

Preeminent. Practical. Focused. Kathryn Karcher, for your client’s appeal. | 619.565.4755 Certified Appellate Specialist, Board of Legal Specialization, State Bar of California

Porter Brown’s Revenge Some antitrust limits on fox-guarded henhouses By David McGowan

Could the Supreme Court’s decision challenging North Carolina’s attempt to regulate dentists curtail the State Bar’s authority over the practice of law? An antitrust law professor suggests it might.


ntitrust law requires suppliers to compete rather than collude. Licensing laws restrict entry and thus supply, so they are one way to restrain trade. Especially when controlled by competitors, licensing may enrich producer at consumers’ expense, flying the false flag of public protection. One might think the Supremacy Clause would favor federal antitrust law over state restraints of trade, but nothing is ever that easy. The Supreme Court has dealt unevenly with such restraints, though a recent decision gives hope to proponents of competition. It all started in Fresno, or, more precisely, “Raisin Proration Zone 1,” of which Fresno was a part. Porter Brown grew and sold raisins. He contracted to deliver about 7,600 tons of raisins, of which he grew only about 200 tons himself. When he made the contracts the market price was $45 per ton. Enter California’s Agricultural Prorate Act, which blessed a scheme under which 10 or more growers could propose a plan to deal with “excess” raisins and thereby raise prices. A committee would approve or modify the plan, which was then subject to approval by — the growers. A grower-appointed committee monitored the plan. What could go wrong? Mr. Brown challenged a plan under which growers funneled 20% of their standard raisins into a “surplus” pool and 50% of their raisins into a “stabilization pool.” The remaining 30% of raisins could be sold into the market as “free” tonnage. Like much regulation of the era, the whole point of the Prorate Act was to help growers by propping up prices. Allowing growers to fix prices with the State’s blessing is a logical way of doing that; who knows better what price to fix? From an antitrust perspective, of course, it was a nightmare. Yet in Parker

v. Brown, 317 U.S. 341 (1943), the Supreme Court sided with the State and rejected a challenge to the prorate scheme based on the primary federal antitrust law, the Sherman Act. The Court assumed such price fixing would be illegal absent state action, but held that the State’s involvement kept the antitrust laws at bay. In provocative dicta, however, the Court said “a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful,” though in truth the Prorate Act did just that. The Court’s straddle in Parker has produced several cases over the years, the most recent of which, North Carolina State Board of Dental Examiners v. Federal Trade Commission, was decided last term. North Carolina regulates dentistry through a dentist-dominated state board. The board sent cease and desist letters to teeth whitening businesses run by non-dentists, trying to scare them out of the market. The FTC accused the board of antitrust violations, and the Supreme Court sided with the FTC. The Court held that a “nonsovereign actor controlled by active market participants” is immune from antitrust scrutiny only if the challenged restraint is “clearly articulated and affirmatively expressed as state policy,” and is “actively supervised by the State.’” Combined this test means that if a State wants to restrict output and raise prices it either must do so itself, as a “sovereign,” do so through a board not stacked with competitors who have a stake in restraining competition, or must keep a close enough watch on a competitor-stacked board that the State may be held responsible for harm the board does to consumers. Sovereignty and accountability are the key concepts. It is odd to see sovereignty lead this list of

elements. The Sherman Act is named for Senator John Sherman, and one would have thought his brother, William Tecumseh, established federal supremacy over state law quite effectively. Federalism nonetheless must have its due, and if a State restrains trade directly, as by legislation, it will not run afoul of the Sherman Act, whatever other problems it might have. California’s rules of professional conduct, adopted by the Supreme Court, are safe, as are legislative prohibitions on unlicensed practice. But governors, legislators, and Supreme Court justices are busy and boards will persist. Clear statement of policy should not prove too much of a problem — restraints of trade may be dressed up as much as the state likes so long as the means — restricting entry or fixing prices — are made tolerably clear. The action has been and will be in figuring out what “active supervision” means. The Court says active supervision requires that the substance of a decision be reviewed, not just the procedure, that the reviewer have the power to veto or modify a decision in accordance with State policy, and that review actually occur, rather than just exist as a Damocletian prospect. Some observers, such as my colleague Bob Fellmeth, think this ruling is important because many regulatory boards have been “captured” by those they regulate and in fact seek to enrich a select group rather than protect the public. This view is complementary to the view, commonly known as public choice theory, that much regulation results from a small number of players with a large stake in a rule banding together to get special government protection at the expense of a large number of people who have lower individual stakes and less incentive to oppose November/December 2015 SAN DIEGO LAWYER 39

such protection. Some hope, if a touch optimistically, that the Court’s decision will make it much harder for states to run such rigged games. It would be nice to think the North Carolina case will lead to a greater voice for consumers in state regulation, including in the regulation of lawyers. Licensing might look less like an antiquated hazing ritual. For example, I personally would like to think that a more consumer-oriented bar exam would not test applicants on fields of law, such as wills and trusts, which have been largely taken over by interactive software. Consumers tend to care less than competitors about what the licensing test asked when you took it. In truth, however, it is too early to say how important the ruling will be because so much depends on the active supervision requirement, which requires a contextual (fact-specific) analysis and which States may prove adept at meeting in form though not in substance. But let’s get back to teeth whitening. Is that dentistry? Presumably even a wellsupervised board of competitors acting pursuant to state policy should not have immunity for regulating things outside the scope of their expertise. What could they bring to such regulation other than selfinterest? An interesting strand of this case was the sense that the North Carolina board of dentistry was overreaching to protect profitable aspects of their practice that did not in fact require dental expertise. This strand played against a competing example raised by Justice Breyer at oral argument — one wants neurosurgeons involved in the process of admitting new doctors to practice neurosurgery. One might even want them to control entry altogether. Regulation of a basically commodity service is more suspicious than regulation of a service that

requires a high degree of expertise and individual judgment. Which raises a question. However actively supervised our state bar may be, how far should its regulatory authority extend or, to put it differently, what is the practice of law into which it may restrict entry? The question is and has long been an embarrassing one to answer. Some common definitions fare poorly. Defining the term as the application of law to facts does not work well to explain why preparation of individual tax returns is not the practice of law. Defining the term as the creation of legal obligations does not work well to explain why real estate brokers do not practice law in connection with home sales. Appearing in Court is not a great definition for transactional lawyers, and even that definition would not answer the question as applied to mediation or arbitration. The Supreme Court had a tough time wrestling with just that issue in Birbrower, Montalbano, Condon & Frank, P.C., v. Superior Court (1998), 17 Cal. 4th 119. It opted for a protectionist answer, one based on dated and shaky precedent that has been essentially swamped by accountants, realtors, and software engineers. (Kudos to Justice Kennard for a very good dissent on this point.) From this angle the North Carolina case was a self-defeating turf battle in which the dentists sought to deflect entry at the periphery of their market rather than settling for defending the core. That approach makes a sort of sense: the farther out the fights occur, the safer the core business feels. Yet at the perimeter it is embarrassing to try to justify licensing restraints. To take our own line of work, are tenants’ rights laws really so complex that tenants’ associations cannot grasp them and advise tenants?

Are employment or labor laws really so impenetrable that experienced employees cannot provide advice — on both what the law says, which a newly minted JD might do, and what to expect in reality, which might be another thing altogether? I know lots of antitrust lawyers and economists; it simply is not true that all lawyers would give you better antitrust advice than any economist. Practice areas in which one or two lawyers leverage many non-lawyer professionals both illustrate and compound the problem. Let’s face it: there is a lot of tooth whitening in law. We are not neurosurgeons. Appeals to that sort of expertise will not justify regulations on the full scope of things lawyers do. Software, in the form of e-discovery vendors and in the form of programs that generate (quite useful) forms, proves the point. Software is not going to perform brain surgery (though I am sure it helps somehow). The broader point of the Court’s decision, therefore, is that antitrust immunity works best when there is a tight fit between a regulation and a claim of expertise. That fit is not very tight when applied to many if not most things lawyers do. The continuing erosion of our hours by more efficient suppliers — both human and software versions — is a testament both to competition and to the ultimate vulnerability of restraints of trade. One may, perhaps, enjoin the tide from coming in. Stopping it is a different matter altogether. David McGowan ( is the Lyle L. Jones Professor of Competition and Innovation Law at the University of San Diego School of Law, and a partner of Durie Tangri LLP. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA.

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2016 Midyear Meeting: A Preview By Jeremy Evans


he American Bar Association (ABA) Midyear Meeting will be held in America’s Finest City, San Diego, CA, from February 3-8, 2016! Following is a preview and tentative schedule for attendees. The main conference will take place at the Grand Manchester Hyatt. Various other meetings and events will be held at the Marriott Marquis San Diego Marina and the Hilton San Diego. For the ABA Young Lawyers Division, educational and social events are being planned at the hotels above and throughout San Diego, in the Gaslamp Quarter and beyond. Some potential locations include the Bali Hai, the Mission Bay Park and Roller Coaster, the Hard Rock Hotel, and Moonshine Flats. A dinner dance will take place on Friday, February 5, 2016 – this is an event that should not be missed (location to be determined). Another event of note is the House of Delegates session scheduled for Monday, February 8, 2016. The House of Delegates is the legislative arm for the ABA who

42 SAN DIEGO LAWYER November/December 2015

discusses and votes on various resolutions to better the ABA for the members and the community. The House of Delegates session is open to the public. Important lunch meetings will also be scheduled for the Midyear Meeting.

Look out for a full article covering the ABA Midyear Meeting in the March/April 2016 issue of San Diego Lawyer!

For something close to my heart, the Committee on the Entertainment and Sports Industry will host a Sports Licensing Panel with general counsels from major local companies. For updates, check the ABA website at

For further details about the ABA Midyear Meeting, see the following list of resources: Preliminary Schedule Airfare Discounts to San Diego for ABA Members authcheckdam.pdf Sports Licensing Panel Information Questions

Another Note for 2016 From Feb. 4-6, a national association of legal ethics attorneys, the Association of Professional Responsibility Lawyers, will also meet in San Diego. Expert panels will address the impact of the recent Supreme Court anti-trust ruling on lawyer regulation; multi-client representation conflicts; a proposed new ABA Model Rule 8.4(g) (bias in the profession); and much more. For information,

In Their Own Words: Pro Bono Attorneys Talk About the Benefits of Volunteering By Parisa Ijadi-Maghsoodi “All the experiences I gained through volunteering at SDVLP gave me the skills I needed for the job I now have.” Sally Reddy, J.D., Tax Consultant, Thefeld & Associates, CPAs For new lawyers, lawyers returning to practice, and even experienced lawyers, pro bono work provides practical legal experience necessary to land a job, develop and hone legal skills, gain substantive knowledge in a new practice area, and provides the experience – litigation and transactional – to grow and develop as an attorney. “SDVLP helps build skills necessary for a practicing attorney. Once assigned a case, it was my duty to move forward with the case plan, an important element to developing each individual case.” Nick Felahi, Associate Attorney, Rauch, APLC For new lawyers, pro bono legal work can be the launching pad. While internships and law school clinics train students in the ins and outs of practice and procedure, few recently licensed attorneys are ready to take on their first case. Pro bono work can provide a vital training ground.


"SDVLP provided the perfect balance of independence and support. SDVLP's staff attorneys encouraged me to independently meet with my client and develop the theory of the case, while always being there to provide their expertise.” Liz Favret, Associate, Duane Morris LLP Through substantive trainings, case strategies discussions, and, most importantly, working with experienced practitioners, SDVLP helps volunteer attorneys develop and perfect the skills they need to take on similar cases of their own. “My husband’s military career requires frequent moves. Volunteering at SDVLP gave me the opportunity to meet other practitioners and judges, and familiarize myself with the local court rules and procedures.” Sally Reddy No matter where an attorney is on their career path, pro bono work can help develop the skills necessary to succeed. Parisa Ijadi-Maghsoodi is the Pro Bono Manager and a Supervising Attorney with San Diego Volunteer Lawyer Program.

Individuals and organizations in our community celebrated numerous achievements this past year. Following is a list of recent community recognitions:

Hon. Maureen Hallahan of the San Diego Superior Court was named Judicial Officer of the Year by the State Bar of California’s Family Law Section.

San Diego Superior Court Judge William Nevitt, Jr. retired after serving 20 years on the bench. Jerrilyn Malana, SDCBA Past President and shareholder with the San Diego office of Littler, has received the Community Legacy Award from the Pacific Arts Movement. Duane Morris LLP partner Keith Zakarin was inducted into the California Association of Private Postsecondary Schools (CAPPS) Hall of Fame for 2015. Seltzer Caplan McMahon Vitek attorney Gregory Vega was elected president of the National Association of Former United States Attorneys.

J. Clancy Wilson, partner with Henderson, Caverly, Pum & Charney LLP, was recently honored with the SDCBA's Tax Law Section's Taxation Legacy Award. Elizabeth Smith Chavez of Smith Chavez Law was honored by the San Diego East County Chamber of Commerce with a Women in Leadership Luncheon award.

Candace Carroll, of counsel with Sullivan Hill Lewin Rez & Engel, was recently elected Vice-Chair of the 2016 San Diego Convention Center Corporation Board of Directors. Hon. Peter Bowie, (Ret.) of counsel with Ballard Spahr LLP, was named recipient of the Excellence in Education Award from the Endowment for Education of the National Conference of Bankruptcy Judges. November/December 2015 SAN DIEGO LAWYER 43






100 PERCENT CLUB 2015 The San Diego County Bar Association’s 100 PERCENT CLUB is a special category of membership that indicates an outstanding commitment to the work done through SDCBA programs and services in the legal profession and the community. The following firms (five or more lawyers) are members of the 100 PERCENT CLUB for 2015, having 100 percent of their lawyers as members of the SDCBA.

Allen, Semelsberger & Kaelin, LLP Andrews Lagasse Branch & Bell LLP Antonyan Miranda, LLP Atkinson, Andelson, Loya, Ruud & Romo Austin, Brownwood, Cannon & Santa Cruz Balestreri Potocki & Holmes Basie & Fritz Beamer, Lauth, Steinley & Bond, LLP Belsky & Associates Bender & Gritz, APLC Bernstein Litowitz Berger & Grossman LLP Best Best & Krieger, LLP Blackmar, Principe & Schmelter APC Blanchard Krasner & French Bonnie R. Moss & Associates Brierton, Jones & Jones, LLP Brown Law Group Buchanan Ingersoll & Rooney PC Butterfield Schechter LLP Butz Dunn & DeSantis APC Casey Gerry Schenk Francavilla Blatt & Penfield, LLP Circuit McKellogg Kinney & Ross, LLP Cohelan Khoury & Singer Del Mar Law Group, LLP Dentons US LLP Dietz, Gilmor & Chazen APC District Attorney’s Office Dostart 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 November/December 2015

Kirby Noonan Lance & Hoge LLP Klinedinst PC Konoske Akiyama | Brust LLP Law Offices of Beatrice L. Snider, APC Legal Aid Society of San Diego, Inc. Lincoln Gustafson & Cercos LLP Littler Mendelson PC Lorber, Greenfield & Polito, LLP Men’s Legal Center Family Law Advocates Miller, Monson, Peshel, Polacek & Hoshaw Moore, Schulman & Moore, APC Musick, Peeler & Garrett LLP Neil, Dymott, Frank, McFall & Trexler APLC Office of the San Diego City Attorney Olins Riviere Coates and Bagula, LLP Oliva & Associates, ALC 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

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

PATRON MEMBERS Marc D. Adelman Ezekiel E. Cortez William O. Dougherty James P. Frantz Allen D. Haynie Van E. Haynie Rhonda J. Holmes Richard A. Huver Laura H. Miller Gerald S. Mulder 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. 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 Marc B. Geller William C. George Kenneth N. Greenfield Ronald Leigh Greenwald Ajay K. Gupta Mark Kaufman Philip P. Lindsley Marguerite C. Lorenz Antonio Maldonado 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


L-R: Janice Mulligan, Hon. Michael Popkins, Hon. Maureen Hallahan, Hon. Peter Deddeh, Hon. Carolyn Caietti

L-R: Elaine Chan, Kristen Bush, Mark Bale, Jana Logan

William Mize, Henry Coker

Hon. David Danielsen

Attorneys and judges enjoyed conversation over lunch during this year's Bench-Bar Luncheon on October 23. Thank you to event sponsor Manuel R. Valdez and Manny J. Valdez, Certified Structured Settlement Consultants.

L-R: Cassandra Hearn, Puja Sachdev, Hon. Robert Amador, Brigid Campos

L-R: Roxy Carter, Hina Gupta, Hon. Joan Weber, Karen Holmes, Kristen Steinke-Combe, Hon. Dan Link, Brett Boon

L-R: Jenifer Swanson, Kristen Steinke-Combe, Alena Shamos, Rebecca Lillig

Stacie Patterson, Marvin Mizell

Ronald Noya, Hon. Amalia Meza

L-R: Ricsie Anne Hernandez, Harold Ayer, Shannon Stein, Anne Rudolph, Hon. Julia Kelety, Kristin Rayder, Hon. Michael Popkins, Gary Jander November/December 2015 SAN DIEGO LAWYER 45



Members gathered at the SDCBA Conference Center on November 12 to celebrate holidays from all over the world.

The Bench-Bar Coalition Annual Fall meeting, held in conjunction with the State Bar Annual Meeting, took place on October 9 in Anaheim.

L-R: Roxanne Nurse, Nicole Heeder, Meagan Verschueren

L-R: Catherine Asuncion, Linh Lam, Fanny Yu

L-R: Nory Pascua, Chief Justice Tani Cantil-Sakauye, Jerrilyn Malana, Ray Aragon

CASD TRIAL STARS AWARDS ANNUAL DINNER Photos by Greg Lambert The Consumer Attorneys of San Diego (CASD) held their annual Evening with the Trial Stars Awards Dinner on October 23.

L-R: Brett Schreiber, Dennis Schoville, Vincent Bartolotta

Hon. Steven Denton (Ret.), Cynthia Chihak

L-R: Madelyn Chaber, Deborah Wolfe, Pajman Jassim, Parisima Roshanzamir

L-R: Timothy Blood, Sen. Marty Block, Dave Fox


Hon. Ernestine Littlejohn, Omar Passons

Christopher Alexander, Randy Jones

Earl B. Gilliam Bar Foundation Scholarship Recipients 46 SAN DIEGO LAWYER November/December 2015

On November 7, the Earl B. Gilliam Bar Foundation hosted its 39th Annual Awards & Scholarship Dinner at the Westin Gaslamp Quarter.

L-R: Charles Bell, Speaker of the Assembly Toni Atkins, Abrina Wheatfall, Brittney Dobbins, Bonnie Dumanis, Aaron Dumas, Hon. Tilisha Martin, Omar Passons, Joy Utomi

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San Diego Lawyer November/December 2015  

Inside this Issue: 2016 SDCBA President Heather Riley; The Generational Divide: A Roundtable Discussion; Human Trafficking Hits Home

San Diego Lawyer November/December 2015  

Inside this Issue: 2016 SDCBA President Heather Riley; The Generational Divide: A Roundtable Discussion; Human Trafficking Hits Home