www.sfvba.org One Law Firm’s Story One LawFirm’s Grow:Big Things From SmallThings, DECEMBER 2020 •DECEMBER $5 Social MediaandCommon A PublicationoftheSanFernando Valley Bar Association Ethical Problems www.ketkcpa.com
2 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org lewitthackman.com 818.990.2120
www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 3 www.SteveSepassi.com CONTENTS DECEMBER 2020 VALLEY AWYER A Publication of the San Fernando Valley Bar Association
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FEATURES On the Cover: Steven H. Wax, Yvonne E. Lang, 12 Social Media and Common Barry S. Pearlman and Dean S. Brown Photo by Ron Murray Ethical Problems | BY KATE WALLMAN MCLE TEST NO. 146 ON PAGE 20. DEPARTMENTS 22 From Small Things, Big Things Grow: 7 President’s Message
One Law Firm’s Story | BY MICHAEL D. WHITE 9 Editor’s Desk 29 Blanket the Homeless: Making a Difference 10 Event Calendars
for 25 years | BY CHRISTINE C. LYDEN AND MARK S. BLACKMAN 31 Retrospective
41 Bar Notes 32 Showdown Over the Pronoun | BY TAMILA C. JENSEN AND DAVID GURNICK 43 Attorney Referral Service
36 The Flexible Lawyer: 45 Valley Community Legal Foundation
Promoting Agility and Innovation | BY ROBERTA L. TEPPER 46 Classifieds
www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 5 Jack G. Cohen COURT QUALIFIED EXPERT WITNESS SAN FERNANDO VALLEY BAR ASSOCIATION 20750 Ventura Boulevard, Suite 140 Woodland Hills, CA 91364 OVER 30 YEARS OF EXPERIENCE Phone (818) 227-0490 IN PRIVATE MONEY LENDING & Fax (818) 227-0499 www.sfvba.org REAL ESTATE RELATED CASES EDITOR Plaintiff and Defense Michael D. White GRAPHIC DESIGNER Marina Senderov OFFICE: 747.222.1550 « CELL: 747.222.1554 EMAIL: [email protected] OFFICERS 2629 Townsgate Road, Suite 110 « Westlake Village, CA 91361 President David G. Jones President-Elect Christopher P. Warne Secretary Matthew A. Breddan PRIVATE MONEY LENDING Treasurer Heather Glick-Atalla Immediate Past President Barry P. Goldberg CREDIT FILE AND QUALIFICATIONS Executive Director Rosie Soto Cohen APPRAISALS • EVICTIONS • FORECLOSURES INDUSTRY STANDARDS • TITLE REPORTS BOARD OF TRUSTEES PROPERTY MANAGEMENT Yuri Aberfeld Minyong Lee TENANT AND LANDLORD ISSUES Michael L. Cohen Joy Kraft Miles Alan Eisner Amanda M. Moghaddam BROKERS AND INVESTORS RELATIONS Kyle M. Ellis Jessica Rosen FINANCE AND DOCUMENTATION Gary J. Goodstein George N. Seide SALES & LEASING • INSURANCE CLAIMS Alex J. Hemmelgarn Steven M. Sepassi Erin Joyce Benjamin E. Soffer LOAN SERVICING • ESCROW Alexander S. Kasendorf Taylor F. Williams
STAFF
Director of Education & Events Linda Temkin Communications Manager Michael D. White Associate Director of G Public Services Miguel Villatoro
SECTION CHAIRS – CO-CHAIRS
Bankruptcy Law Steven R. Fox Business Law & Real Property Lauri Shahar Criminal Law David S. Kestenbaum Employment Law David G. Jones Trevor Witt Family Law Vanessa Soto Nellis Amir Aharonov Litigation Christopher P. Warne Anthony Ellis New Lawyers Alex J. Hemmelgarn Amanda Marie Moghaddam Probate & Estate Planning John E. Rogers Nancy A. Reinhardt Taxation Law Hratch J. Karakachian Workers’ Compensation Jeffrey S. Swartz
EDITORIAL COMMITTEE CHAIR David Gurnick Valley Lawyer is published monthly. Articles, announcements, and advertisements are due by the first day of the month prior to the publication date. The articles in Valley Lawyer are written for general interest and are not meant to be relied upon as a substitute for independent research and independent verification of accuracy.
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6 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org PRESIDENT’S MESSAGE
DAVID G. JONES SFVBA President A Positive Glimmer
HE YEAR-END HOLIDAYS– by dedicated lawyers and bench in distributing a vast amount of food to a time when many of us offi cers, is able to extend its work deep those in need during these diffi cult times. look outside of ourselves to help into local communities by promoting Their partnership with the SFVBA and support the communities around us and supporting education in the law, has been a long and productive that are in need. presenting scholarships to qualifi ed one, and I strongly encourage every Whether it be spending a day students interested in entering the legal member of our Bar to look into these helping at a soup kitchen, rounding up profession, offering access to justice, organizations, and others, and seek gifts for a toy drive, or simply helping and assisting families in confl ict and out any and all opportunities to help families struggling with the day-to-day, victims of domestic violence with their support their worthy work in our Valley each of us can fi nd a way to help. legal needs. community. Through those efforts comes the And, of course, our fl agship Finally, the Bar’s Women Lawyers gratifi cation of helping others, and an program, Blanket the Homeless, which Section recently conducted a very appreciation for what we cherish in our is celebrating its 25th anniversary this successful donation drive in support of own lives that allows us to help those year. Haven Hills, the Canoga Park domestic with often desperate needs in special abuse refuge center, which offers victims ways. shelter, crisis intervention, counseling, As you may recognize as a theme in advocacy, and activities in support of my past columns, this year has proven improved economic opportunities. especially diffi cult as the COVID-19 The drive resulted in 25-plus pandemic has impacted the health, both volunteers providing donations of both physical and emotional, and economic time and funds to the facility, which well-being of our communities. opened its doors in 1977. While a vaccine–a potential end As you can see, your Bar has, is, to the pandemic–and an end to these and will always be active in our Valley uniquely trying times may well be on the community helping those in need, when horizon, as we drift into holiday season they need it most. That serves as a 2020, we need to remember that people testament to the year-round ‘holiday are hurting and in need, truly more than I can count as some of my very spirit’ of the SFVBA’s members and its any time in our collective memory. favorite memories the opportunity to help leaders. The San Fernando Valley Bar with the distribution of those much- Even if we remain homebound and Association has a long history of needed blankets to the homeless. shelter this holiday season, we can still supporting the local community by I recall the hours working with keep those in need in our hearts, and providing pro bono legal advice in community partners such as LA Family support those amazing organizations times of crisis–the 1994 Northridge Housing and Meet Each Need with with our donations and our time. Earthquake, the Aliso Canyon natural Dignity (MEND), a food bank offering The giving spirit of our Bar is gas leak, and most recently, the support to the most vulnerable members just one of the things that sets this devastating fi res that cost so much of our community, and is considered one organization–now approaching its in terms of lives lost and property of the most comprehensive poverty relief centennial anniversary–apart. destroyed. agencies in the greater Valley. Whatever these challenging times Our Bar is very proud to work with I am a proud member of the MEND and circumstances may come, a positive its charitable arm, the Valley Community Board of Trustees and have seen, glimmer will help us through. Happy Legal Foundation (VCLF), which, headed fi rsthand, the work the organization does Holidays! www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 7 [email protected]
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8 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org EDITOR’S DESK
MICHAEL D. WHITE Communications Long-Standing Relationships Manager
ANY, MANY YEARS AGO, as president of the California Workers’ and support staff at the eight PB&W a very wise man told me, Compensation Defense Attorneys’ offi ces that dot the state to see the fi rm “Everybody, absolutely Association. In 2008, he became one as “the last place they ever work.” everybody, has a story.” of only eight individuals since 1913 to The wise man was my dad sharing be honored with the presentation of the the distilled essence of an event-fi lled organization’s Warren L. Hanna Lifetime Special recognition goes to SFVBA life that took him from poverty in pre- Achievement Award “for his contributions Past Presidents Christine C. Lyden and Depression Fall River, Massachusetts, to the profession and the organization.” Mark S. Blackman for their commitment though World War II as a combat to the Blanket the Homeless program, medic, a post-war move to the San which is celebrating its 25th year of Fernando valley, raising a family here, dedicated service to the Valley’s and some 42 years as a bartender. homeless. “You can learn a lot just by listening And thanks to attorney Kate to people; why they are the way they Wallman of Lewitt Hackman for her are and how what they do molds them.” outstanding MCLE on Social Media He had quite a story to tell and, this The fi rm, he told me, is based on and Common Ethical Problems and the month, we have the opportunity to listen relationships. “We have long-standing other contributors to this ‘end of the for a bit to attorney Barry Pearlman, relationships with our clients, some year’ issue of Valley Lawyer. who, 36 years ago, founded the Encino- for as long as 30 years and continue Merry Christmas, Happy Hannukah, based law fi rm of Pearlman, Brown to this day,” he says, while he wants, happy holidays and sincere wishes for a & Wax, which is fi rmly planted in the now and in the future, the attorneys Happy New Year to all! San Fernando Valley. A genuine Valley native, the fi rm’s offi ces are three miles from his home and four miles away from the hospital where he was born. He founded the fi rm with a loan from his parents and the dream of helping business owners navigate the rocks and shoals of California’s complicated workers’ compensation law. INTRODUCING A UNIQUE PROGRAM It was seeing fi rst-hand the issues EXCLUSIVELY FOR LOW INCOME LAWYERS. his father and two brothers had to A unique program for solo practitioners deal with while running a small family designed to reach and protect as many Accessible business that fueled his decision in law California lawyers and their clients as possible. school to shift his focus from criminal Built with simplicity and sustainability in mind; law to workers’ comp. “I saw a lot $100K/$100K limits for a $750 annual premium* Simple & Sustainable of the struggles they went through while delivering additional member benefits. and I thought it would be a good Created to empower California lawyers to meet Closing the justice gap way to assist them and others fi nding the unmet needs of the most vulnerable individuals who face social inequity. themselves in the same situations.” *Income limitations apply with other qualifying terms and conditions. Recognized for his acumen in wwww.lawyersmutual.comww.lawyersmutual.com the fi eld, Pearlman has served twice www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 9 CALENDAR DECEMBER 2020
SUN MON TUE WED THU FRI SAT
VIRTUAL EVENT ZOOM ZOOM WEBINAR State Supreme Court MEETING MEETING Bankruptcy Zoom Event with Italian Editorial Membership Law Section American Lawyers Committee and Discharging Taxes Co-Sponsored by 12:00 NOON Marketing from Late-Filed Committee Returns 6:00 PM 12:00 NOON The Hon. Robert Kwan and attorneys John Faucher and Honoring the Chief Justice John Tedord discuss Tani Cantil-Sakauye what to do regarding 6:00 PM discharging taxes Free to SFVBA Members! from those late-fi led www.iala.info/event-4054314/ returns. Approved for Registration Bankruptcy Law Legal Specialization. (1 MCLE Hour)
WEBINAR Probate and Estate WEBINAR Planning Section Employment What Every Estate Planner Law Section Needs to Know About Updates and Prenups More 12:00 NOON 12:00 NOON Distinguished attorneys Peter Section Co- Walzer, CFLS and Christina E. chairs David Djordjevich lead the discussion. G. Jones (1 MCLE Hour) and Trevor Witt discuss ZOOM MEETING how 2021 Board of Trustees might unfold. 5:00 PM (1 MCLE Hour) WEBINAR Taxation Law Section A Review of Proposition 19 12:00 NOON ZOOM Attorneys Alex Hemmelgarn MEETING and Hratch Karakachian 5:30 PM will discuss the changes to California property tax transfer and exemption rules due to the passage of Proposition 19. (1 MCLE Hour)
TUESDAY DDECEMBERECEMBER 1155 5:3300 PPMM See ad on page 35
SFVBA merchandise is now available on https://www.zazzle.com/store/sfvbashop See ad on page 6 The San Fernando Valley Bar Association is a State Bar of California MCLE approved provider. Visit www.sfvba.org for seminar pricing and to register online, or contact Linda Temkin at (818) 227-0495 or [email protected]. Pricing discounted for active SFVBA members and early registration.
10 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org JANUARY 2021 CALENDAR
SUN MON TUE WED THU FRI SAT
SFVBA OFFICES CLOSED WEBINAR ZOOM All Members MEETING Professional Membership Responsibility and and Marketing Technology Committee ZOOM MEETING Sponsored by 6:00 PM 5:30 PM
WEBINAR 12:00 NOON Business Law and This seminar will cover Probate and Estate Planning attorney professional Sections responsibility obligations Unlawful Detainers around the use of 12:00 NOON technology by surveying David Almaraz addresses the key ABA rules and group. (1 MCLE Hour) state regulations. Free to members. (1 MCLE ZOOM MEETING Hour of Legal Ethics) Board of Trustees 6:00 PM
WEBINAR Taxation Law Section Litigation Tax Cases in the Federal Court 12:00 NOON Attorney, CPA & Certifi ed Tax Law Specialist Michael Blue will present a primer on litigating tax SFVBA OFFICES cases in the federal courts. CLOSED (1 MCLE Hour)
WEBINAR WEBINAR All Section/New Family Law Lawyers Section How to Start a Law Practice New Laws 5:30 PM 5:30 PM Morvareed Salepour Attorneys Lionel Levin (transactional), Sona Tatiyants and Robert Schibel (estate planning), Zein Obagi will review the latest (litigation/employment) and that every family law Sharen Ghata (criminal law/ attorney should know. personal injury) will discuss (1 MCLE Hour) starting and/or reinvigorating your law fi rm. Participants are welcome to network before the webinar. (1 MCLE Hour) SFVBA COVID-19 UPDATES sfvba.org/covid-19-corona-virus-updates/ www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 11 By reading this article and answering the accompanying test questions, you can earn one MCLE credit. To apply for the credit, please follow the instructions on the test answer form on page 20.
By Kate Wallman Social Media and Common Ethical Problems
Th e California Rules of Professional Conduct govern attorney and law fi rm content published on the internet and attorney or law fi rm advertising or marketing websites and lay out the general requirements all lawyers and law fi rms must abide by in advertising and solicitation.
12 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 13 INKEDIN. AVVO. FACEBOOK. TWITTER. THESE The Rules also prohibit lawyers from making any false or are just a few of the many social networking websites misleading communication, regardless of the medium. in today’s digital world that provide professionals with This prohibition includes statements which are simply a variety of new avenues for communication, networking and untrue, as well as statements which may be intentionally marketing. deceptive or misleading due to omitted facts.3 Today, attorneys have the unprecedented ability to grow In 2012, the State Bar’s Standing Committee on their presence in the legal fi eld, make a name for themselves Professional Responsibility and Conduct issued a formal in the blogosphere, and market their practices to potential ethics opinion with guidelines and ethical restrictions on clients as social media traverses old barriers such as time California attorneys when using social media advertising.4 and distance and allows new relationships to be built and The opinion states that Facebook and other social media fostered. advertising is subject to the same California Bar Rules as Though the advantages of social media and the digital traditional advertising and those rules prohibit false and age are seemingly limitless, this new world also comes with a misleading advertising.5 minefi eld of hazards for unprepared attorneys, while the ever- In California, “material posted by an attorney on a social changing digital landscape raises ethical questions attorneys media website will be subject to professional responsibility must address before reaping its benefi ts. rules and standards governing attorney advertising if that For example, how can attorneys make sure their material constitutes a ‘communication’ within the meaning websites and blog posts comply with their state’s of Rule 1-400 (Advertising and Solicitation) of the Rules of advertising requirements? How should they monitor their Professional Conduct of the State Bar of California.”6 online presence so they do not disclose privileged client The same is true under new Rule 7 of the Rules of information? How do they avoid the unauthorized practice of Professional Conduct.7 law when blog posts are sent across the world? Or, how can A communication is defi ned as “any message or offer attorneys avoid inadvertent attorney-client relationships when made by or on behalf of a member concerning the availability they answer postings in online chat groups? for professional employment of a member or a law fi rm This article discusses these social media quandaries and directed to any former, present or prospective client.”8 tries to provide some guidance for attorneys to monitor their Further, a “communication or solicitation shall not contain presence in the social media sphere. any untrue statement or any matter, or present or arrange any matter in a manner or format which is false, deceptive or Legal Advertising which trends to confuse, deceive, or mislead the public; omit The California Rules of Professional Conduct govern attorney to state any fact necessary to make the statements made, and law fi rm content published on the internet and attorney in the light of circumstances under which they are made, nor or law fi rm advertising or marketing websites. These rules misleading to the public; fail to indicate clearly, expressly, or state the general requirements all lawyers and law fi rms must by context, that it is a communication or solicitation, as the abide by in advertising and solicitation. case may be, that is in any manner which involves intrusion, The rules for websites and advertisements maintained coercion, duress, compulsion, intimidation, threats or by California attorneys were revised on November 1, 2018, vexatious or harassing conduct.”9 when the state’s new Rules of Professional Conduct became The State Bar has considered several hypothetical online effective.1 postings. For example: The California State Bar’s regulation of attorney advertisements and solicitation, previously under Rule 1-400, 1 “Case fi nally over. Unanimous verdict! Celebrating were reorganized under Rules 7.1 through 7.5.2 tonight.” However, the fundamental principle of Rule 1-400 2 “Another great victory in court today! My client remain unchanged. Both Rule 1-400 and new Rule 7 focus is delighted. Who wants to be next?” on ensuring that attorney advertisements or solicitations are truthful, not misleading, clearly identifi able as advertisements, 3 “Won a million-dollar verdict. Tell your friends and ensure the advertiser’s accountability. and check out my website.”
Kate Wallman is a corporate and franchise attorney at Lewitt Hackman in Encino. She can be reached at [email protected].
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ACCEPT MORE PAYMENTS WITH LAWPAY 866-751-8288 | lawpay.com/sfvba 4 “Won another personal injury case. Call me for a free inclusion of any “guarantee or warranty regarding the outcome consultation.” of a legal matter.”19 New Rules 7.1 through 7.5 of the RPC lay out even 5 “Just published an article on wage and hour breaks. more detailed requirements. Rule 7 explains that even Let me know if you would like a copy.”10 statements which are true, but misleading, may violate an attorney’s ethical obligations.20 In an opinion, the Bar found that examples one and fi ve Comment 3 to new Rule 7.1 notes that a truthful were not communications under Rule 1-400(a) because they statement may be misleading if it “omits a fact necessary to did not contain a message or offer “concerning the availability make the lawyer’s communication considered as a whole not for professional employment.”11 materially misleading,” or if it creates a “substantial likelihood Therefore, those postings were not advertising and did not that it will lead a reasonable person to formulate a specifi c have to comply with the standards of Rule 1-400(E). conclusion about the lawyer or the lawyer’s services for Examples two, three, and four however, contained which there is no reasonable factual foundation.”21 explicit language suggesting the availability for professional Similarly, Comment 4 to new Rule 7.1 explains that even employment. As a result, those posts are seen as a truthful statement regarding the lawyer’s achievements communications, subject to Rule 1-400’s standards for on behalf of clients or former clients, or a testimonial or attorney advertising.12 endorsement, may be misleading and The Bar found several problems thus a violation, if “presented so as to with examples two, three, and four lead a reasonable person to form an under California’s rules for attorney unjustifi ed expectation” that they could advertising. obtain the same results.22 Example two violates the Most attorney advertisements restrictions on client testimonials. in California must identify at least one A California attorney cannot publish attorney, by name, who is responsible communications that contain for placing the advertisement even if a testimonials for that attorney unless fi rm is identifi ed. the communication also contains an Under Rule 7.2(c), both the name express disclaimer, while all three and address of at least one responsible examples fail to explicitly state that attorney must be identifi ed.23 they are advertisements.13 14 Finally, example two offers an improper guarantee or Confi dential Information prediction of winning.15 One of an attorney’s most sacrosanct duties to a client is confi dentiality. The ease of sharing information through social Formal Opinion 2019-199 media, and the inherent informality of social media websites, In 2019, the State Bar Standing Committee on Professional however, increases the danger of breaching that trust. Responsibility and Conduct issued Formal Opinion 2019-199, Disclosure of confi dential client information can occur in which details an attorney’s obligations concerning third-party a variety of ways. website profi les advertising on the attorney’s behalf and Though websites, blog posts, LinkedIn and Facebook concludes that the rules governing attorney advertising apply status updates, and Tweets all allow instant publication and to an individual who adopts any such profi le.16 17 dissemination of information, the informal setting of a social All media attorneys use to promote their professional legal media website does not excuse an attorney’s improper services are regulated by Rules 7.1 and 7.2 of the California disclosure of confi dential information. Rules of Professional Conduct (RPC) and are subject to the Furthermore, understanding how these websites work limitations laid out in the Business and Professions Code, to assess their security is critical for monitoring ethical Sections 6157.2 through 6258.3.18 compliance. The State Bar has stated that if an attorney Attorneys licensed to practice in California should be aware “lacks the necessary competence to assess the security of of the advertising rules when posting anything online–simply, the technology, he or she must seek additional information if an attorney’s post meets the defi nition of a communication, or consulted with someone who possesses the necessary the attorney must comply with California’s rules regarding knowledge.”24 advertising. California’s broad duty of confi dentiality is found in For example, Business and Professions Code section § 6068(e)(1) of the Business and Professions Code, and in 6157.1 prohibits any false, misleading or deceptive statement the California Rules of Professional Conduct, Rule 1.6, which in an advertisement, while section 6157.2 prohibits the requires attorneys practicing in the state to “maintain inviolate
16 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org the confi dence, and at every peril to himself or herself to preserve the secrets, of his or her client.”25 The sole exception permits revealing confi dential information relating to the representation of a client to prevent a criminal act likely to result in death or substantial bodily harm.26 In addition to not intentionally disclosing confi dential client information, a lawyer’s duty of competence under California Rule 1.6 requires that reasonable precautions be taken to safeguard against unintended disclosure.27
Ethical Risks The Los Angeles County Bar Association’s Professional and Ethics Committee published an opinion on the ethical risks in social media. It noted that online communications present particular risks for attorneys and for protection of confi dential client information.28 29 The Association discussed an example of an attorney at a conference with a client during which the client revealed facts that were detrimental to the client or the client’s case.30 After the conference, the attorney disclosed those facts online when discussing a client whose name the attorney did not reveal. The Bar Association noted that although the attorney might believe the facts could not be associated with the particular client, an opposing party or third person might be able to infer the client’s identity from the context of the disclosure.31 The Bar also found that the disclosure by the attorney would likely not constitute waiver of the privilege, but that the opposing party could use the underlying facts that were disclosed during the attorney-client communication to the client’s detriment or embarrassment.32 Attorneys must protect client information diligently and carefully. Posting seemingly casual information about an attorney’s day or meeting with a client may have greater consequences than an attorney can imagine. Further, attorneys should be aware that the duty of confi dentiality does not end with termination of a professional relationship and even may apply even when the facts are already part of the public record.33 In addition, an attorney must always comply with the duties regarding confi dential client information and an attorney’s online postings or other activities do nothing to negate this responsibility. Ultimately, using client information in social media is best done very sparingly with extreme caution, or, perhaps even better, not at all.
Unauthorized Practice of Law A basic tenet of legal practice is that attorneys can practice law only in jurisdictions where they are licensed, with a few exceptions. Social media, however, knows no geographic boundaries as people can access an attorney blog or website from anywhere in the world. www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 17 While this ease of access is one of the most powerful A statement that the attorney does not seek to represent benefi ts of the internet and social media, it poses ethical anyone based solely on a visit to the attorney’s problems regarding the unauthorized practice of law. website.36 In California, unauthorized practice is more than a disciplinary violation; it is also a misdemeanor, while a Also, when posting online, attorneys should avoid physical presence in the non-licensed jurisdiction is not answering specifi c legal questions and should instead focus required to trigger a violation.34 35 on providing generalized information.37 Facebook comments, interactive Tweets, and blogs Attorneys can also turn off comments on a posting or not with comment features are examples of situations where respond to a comment–two simple, but effective, techniques attorneys might fi nd themselves interacting with non- that can help prevent interactive communications that could lawyers, inadvertently and unethically providing legal advice lead to an unintended attorney/client relationship. to someone who does not live in the state where they are licensed to practice. Inadvertent Attorney/Client Relationships The State Bar has recommended its attorneys add the There is a serious risk of inadvertently forming attorney-client following content to their websites to avoid any confusion relationships through online actions. that they are advertising in other jurisdictions: The State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion An explanation of where the attorney is licensed to 2003-161 examined such a circumstance–a communication practice law, made in a non-offi ce setting by a person seeking legal advice may be entitled to protection as a confi dential communication A description of where the attorney maintains law offi ces when the attorney makes no agreement of confi dentiality and and actually practices law, does not accept the case. The Bar concluded that the communication may be An explanation of any limitation on the courts in which entitled to protection under two circumstances–fi rst, if the attorney is willing to appear; and, an attorney-client relationship is created by the contact or, second, the attorney’s words or actions induce in the speaker a reasonable belief that the speaker is consulting the attorney, in confi dence, in his professional capacity to retain the attorney or to obtain legal services or advice, even if no attorney-client relationship is formed.38 To avoid creating an inadvertent attorney/client relationship, attorneys must consider whether information they post on a social media website would create the reasonable belief by a website visitor that they are consulting an attorney to obtain legal advice or services. It is an attorney’s responsibility to make clear to the website visitor that an attorney/client relationship either has or has not been created.39 When using social media, attorneys should always speak in generalized terms and post explicit disclaimers stating that any interaction does not automatically form an attorney/client relationship.40 This is in order to inform the user and ultimately rebut any reasonable belief that one exists.41 Disclaimers are, of course, not bullet-proof, but it is better to have one than not have one at all. Compounding the risk that attorneys could inadvertently create an attorney/ client relationship–if they provide legal advice in a jurisdiction where they are not licensed–they could be considered as engaging in the unauthorized practice of law.
Conclusion The introduction of social media to the practice of law
18 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org provides attorneys with increased opportunities to market services and advance their professional personas. But it is critical to remember that technologically advanced online communication also creates the possible risk of ethical mishaps. Attorneys must be aware of their existing ethical obligations and apply those obligations to new situations that may arise from utilizing the latest advances in social media.
1 Cal. State Bar Rules of Prof’l Conduct (“Cal. Rules”). 2 Id. at R. 7.1 to 7.5. 3 Id. 4 Cal. Bar Comm. on Prof’l Responsibility & Conduct, Formal Op. 2012-186 (2012). 5 Id.; see also Cal. Bus. & Prof. Code §§ 6157-6159.2; Cal. Rules R. 1-4100(A). 6 Cal. Bar Comm. on Prof’l Responsibility & Conduct, Formal Op. 2012-186 (2012). 7 Cal. Rules R. 7.1. 8 Cal. Bar Comm. on Prof’l Responsibility & Conduct, Formal Op. 2012-186 (2012). 9 Id. 10 Id. 11 Id. 12 Id. 13 Standard 2 in former Rule 1-400 notes that a communication which contains a testimonial or endorsement of the lawyer must contain an express disclaimer that such communication is not a guarantee or prediction of results, otherwise it is a presumed violation. Comment 4 to new Rule 7.1 explains that even a truthful statement regarding the lawyer’s achievements on behalf of clients or former clients may be misleading and therefore a violation, if “presented so as to lead a reasonable person to form an unjustified expectation” that they could obtain the same results. Although the comments to new 7.2 do not require including a disclaimer, the comments note that a disclaimer “often avoids creating unjustified expectations.” Cal. Rules R. 7.2. 14 Cal. Rules R. 1-400(E), Std. 5; Cal. Rules R. 7.3(c). 15 Cal. Bar Comm. on Prof’l Responsibility & Conduct, Formal Op. 2012-186 (2012); Cal. Rules R. 1-400(E), Std. 1.; Cal. Rules R. 7.1, Comment 2; Cal. Bus. & Prof. Code § 6157.2. 16 Cal. Bar Comm. on Prof’l Responsibility & Conduct, Formal Op. 2019-199 (2019). 17 Id. 18 Id. 19 Cal. Bus. & Prof. Code, §§ 6157.1 and 6157.2; see also Cal. Rules R. 1-400, Std. 1.4. 20 Cal Rules R. 7.1. 21 Id. at Comment 3. 22 Id. at Comment 4. 23 Cal Rules R. 7.2(a). 24 Cal. Bar Comm. on Prof’l Responsibility & Conduct, Formal Op. 2010-179 (2010). 25 Cal. Bus. & Prof. Code, § 6068(e)(1); Cal. Rules R. 1.6. 26 Cal. Bus. & Prof. Code, § 6068(e)(2); Cal. Rules R. 1.6. 27 See Cal. Bar Comm. on Prof’l Responsibility & Conduct, Formal Op. 2010-179 (2010) (“An attorney’s duties of confidentiality and competence require the attorney to take appropriate steps to ensure that his or her use of technology in conjunction with a client’s representation does not subject confidential client information to an undue risk of unauthorized disclosure”). 28 L.A. County Bar Assoc. Prof’l Responsibility and Ethics Comm., Opinion No. 529 (August 2017). 29 Id. 30 Id. 31 Id. 32 Id. 33 See Dixon v. State Bar 32 Cal.3d 728 (1982) (suspending attorney from practice of law for five years for violating client confidentiality, among other violations, when attorney disclosed confidential information about a former client); Oasis West Realty, LLC v. Goldman, 51 Cal. 4th 811 (2011) (after termination of representation, “a lawyer must: ... (d) take no unfair advantage of a former client by abusing knowledge or trust acquired by means of the representation.” See In re Johnson, 4 Cal. State Bar Ct. Rptr. 179 (2000) (finding an attorney’s revelation in confidence that his client had served time for a felony conviction violated the duty of confidentiality because, even though the conviction was public record, it was not easily discovered). 34 Cal. Rules R. 5.5 prohibits the unauthorized practice of law and aiding and abetting the unauthorized practice of law; Cal. Bus. & Prof. Code, § 6126. 35 See In The Matter of Lenard, 5 Cal. State Bar Ct. Rptr. 250 (2013) (physical presence is not the litmus test for identifying or establishing that a lawyer has [email protected] committed unauthorized practice of law). 36 Cal. Bar Comm. on Prof’l Responsibility & Conduct, Formal Op. 2001-155 (2001). 37 Julie Tappendorf, Attorney Ethics and Social Media, American Bar Assoc. (2015). 38 Cal. Bar Comm. on Prof’l Responsibility & Conduct, Formal Op. 2003-161 (2003). 39 Jessica Weltge and Myra McKenzie Harris, The Minefield of Social Media and Legal Ethics: How to Provide Competent Representation and Avoid the Pitfalls of Modern Technology, American Bar Assoc. (March 24, 2017). 40 Michael E. Lackey Jr. & Joseph P. Minta, Attorneys and Social Media: The Legal Ethics of Tweeting, Facebooking and Blogging, 28 TOURO L. REV. 149, 164. 41 Id.
www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 19 Social Media and Common Social Media and Common Ethical Ethical Problems Problems MCLE Answer Sheet No. 146 INSTRUCTIONS: Test No. 146 1. Accurately complete this form. 2. Study the MCLE article in this issue. 3. Answer the test questions by marking the This self-study activity has been approved for Minimum Continuing Legal Education appropriate boxes below. (MCLE) credit by the San Fernando Valley Bar Association (SFVBA) in the amount 4. Mail this form and the $20 testing fee for of 1 hour. SFVBA certifies that this activity conforms to the standards for approved SFVBA members (or $30 for non-SFVBA education activities prescribed by the rules and regulations of the State Bar of members) to: California governing minimum continuing legal education. San Fernando Valley Bar Association 20750 Ventura Blvd., Suite 140 1. The California State Bar is silent on 11. Ignorance of technology is an excuse Woodland Hills, CA 91364 guidelines for California attorneys for the disclosure of confidential METHOD OF PAYMENT: using social media. information. Check or money order payable to “SFVBA” ❑ True ❑ False ❑ True ❑ False Please charge my credit card for $______. 2. Online attorney advertising is 12. An attorney’s online post about their governed by the same California Bar work day with information about a ______Rules as traditional advertising. client but not the client’s name can Credit Card Number ❑ ❑ True False never breach the attorney’s duty of 3. The California Rules of Professional confidentiality. CVV code Exp. Date Conduct regarding rules for attorney ❑ True ❑ False websites and advertisements were Authorized Signature last revised in November 2017. 13. The duty of confidentiality can be applied to facts that are already in the 5. Make a copy of this completed form for ❑ True ❑ False your records. public record. 6. Correct answers and a CLE certificate will 4. A communication within the meaning ❑ True ❑ False be mailed to you within 2 weeks. If you of the Rules of Professional Conduct have any questions, please contact our of the State Bar of California contains 14. The duty of confidentiality ends at office at (818) 227-0495. a message or offer concerning the the termination of the professional Name______availability of professional relationship with the client. Law Firm/Organization employment. ❑ True ❑ False ______❑ True ❑ False Address______15. An attorney must be physically 5. A communication posted online City______present in the unlicensed jurisdiction State/Zip______by an attorney must comply with to trigger a violation of the rule California’s Rules of Professional Email______against unauthorized practice of law. Phone______Conduct for attorney advertising. ❑ True ❑ False ❑ True ❑ False State Bar No.______ANSWERS: 16. In California, the unauthorized 6. A communication can contain a Mark your answers by checking the appropriate practice of law is an ethical violation box. Each question only has one answer. guarantee or prediction of winning. and a felony. ❑ True ❑ False 1. ❑ True ❑ False ❑ True ❑ False 2. ❑ True ❑False 7. A communication cannot contain false and misleading information. 17. California recommends attorneys 3. ❑ True ❑ False put disclaimers on their websites to ❑ True ❑ False 4. ❑ True ❑ False avoid confusion that the attorney is ❑ ❑ 8. An attorney who posts “Another advertising or practice law in another 5. True False great victory in court today! My jurisdiction. 6. ❑ True ❑ False client is delighted. Who wants to be ❑ True ❑ False 7. ❑ True ❑ False next?” to her blog is not in violation ❑ ❑ the California Rules of Professional 18. An attorney-client relationship can 8. True False Conduct. be created by an attorney’s online 9. ❑ True ❑ False ❑ True ❑ False interaction with a person. 10. ❑ True ❑ False ❑ True ❑ False 9. There are four exceptions to 11. ❑ True ❑ False California’ duty of confidentiality 19. Disclaimers are useful for attorneys to 12. ❑ True ❑ False under the California Business and post in their online activities stating ❑ ❑ Professions Code and in California’s 13. True False that any interaction does not form an Rules of Professional Conduct. 14. ❑ True ❑ False ❑ True ❑ False attorney-client relationship. ❑ True ❑ False 15. ❑ True ❑ False 10. A California attorney has a duty 16. ❑ True ❑ False 20. It is the attorney’s responsibility to to take reasonable precautions 17. ❑ True ❑ False to safeguard confidential client make clear to the website visitor that 18. ❑ True ❑ False information against unintended an attorney-client relationship has or disclosure. has not been created. 19. ❑ True ❑ False ❑ True ❑ False ❑ True ❑ False 20. ❑ True ❑ False
20 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org A WORLD OF DIFFERENCE
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www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 21 By Michael D. White
From Small Things, Big Things Grow: OOnene LawLaw Firm’sFirm’s StoryStory
Over the past 36 years, the small practice that became Pearlman, Brown & Wax, LLP has grown into a giant in the fi eld of employment litigation and workers’ compensation with 54 attorneys and support staff in eight offi ces stretching from San Diego, CA to Sacramento, CA.
Photos by Ron Murray
22 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 23 T ALL BEGAN WITH A LOAN FROM HIS PARENTS. In May 1984, after three years with the fi rm of Rose Klein & Marias in Los Angeles, newly minted attorney Barry S. Pearlman needed the fi nancial wherewithal to start his own law practice. But without a line of credit, he did what many young people with a dream do: he asked his parents for a loan. “I told my Dad that I wanted to start my own practice,” says Pearlman. “With his help, I was able to start the fi rm, start my own line of credit, and generate enough income to pay him back.” More than three decades later, the small practice that became Pearlman, Brown & Wax, LLP has grown into a giant in the fi eld of employment litigation and workers’ compensation with 54 attorneys and support staff in eight offi ces stretching from San Diego, CA to Sacramento, CA. After graduating from the University of California, Los Angeles, Pearlman’s original goal was to become a Federal Bureau of Investigation agent, which required a law degree. But, at Southwestern Law School, his interest shifted from criminal to employment law.
A First-Hand Lesson Seeing fi rst-hand the issues his father and two brothers faced running a family business he recognized the importance of counseling businesses. “I saw the struggles they went through, and I thought learning employment law would be a good way to assist them and others in the same situations.” Pearlman initially envisioned a small boutique practice, one that would ensure time for both work and family. “I got married the same year I opened my practice and I wanted to make sure I could balance the personal and the professional.” But the fi rm continued to grow. “Success doesn’t happen on its own. It requires the energy and skill sets of more than one individual.” According to Pearlman, his equity partners– attorneys Steven H. Wax, Dean S. Brown and Yvonne E. Lang–brought the perfect balance of temperament, experience, and talent to ensure the fi rm’s growth, helping him to position the fi rm as a leader throughout the state and local communities. The strength of the fi rm has only grown with the addition of each and every partner.
Attorney Barry S. Pearlman
Michael D. White is editor of Valley Lawyer magazine. He is the author of four published books and has worked in business journalism for more than 35 years. Before joining the staff of the SFVBA, he worked as Web Content Editor for the Los Angeles County Metropolitan Transportation Authority. He can be reached at [email protected].
24 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org A true San Fernando Valley native, “The issues have become much more Pearlman’s Encino offi ce is fi ve miles complicated,” says Pearlman. from his home and four miles from “California is ground zero for the hospital where he was born. employment and workers’ compensation In his role as managing partner, he litigation. For employers, the law is diffi cult is not only the caretaker of the day- to navigate. Much of what we do is counsel to-day operations of the fi rm but also our clients how to steer through all that oversees the burgeoning employment and warn them about cross-over issues law and sports litigation departments. existing between employment and workers compensation laws.” Scale and Scope Pearlman also manages the fi rm’s The scale and scope of the work sports team practice, defending many that Pearlman and sports teams including the his associates National Football League faced when the and Major League fi rm opened Soccer from claims have changed made in California. signifi cantly over “We handle the years. injury litigation for California several professional Workers’ sports teams and their Compensation insurance carriers.” law is a no-fault Over the years, system for injuries clients have included arising from the Oakland Raiders, an employee’s work, whether they Los Angeles Kings, Anaheim Ducks, San are specifi c injuries, a disease, or a Francisco Giants, and the San Diego/Los disabling condition. It is one of Angeles Chargers. the most complicated areas of law. Most recently, the fi rm’s nine attorneys It is constantly morphing, with who practice sports litigation have been a dizzying barrage of new rules, assisting several teams with COVID- regulations and mandates appearing 19 issues, helping them comply with on an almost daily basis. the various regulations and mandates associated with the on-going pandemic.
www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 25 that they don’t take advantage of the system. By making sure injured employees receive what they are entitled to, and only what they are entitled to, we are serving the best interests of not only our clients but the workers’ compensation system.”
The Elements of Success Pearlman has served twice as president of the California Workers’ Compensation Defense Attorneys Association and in 2008, became one of only eight individuals to receive the association’s Warren L. Hanna Lifetime Achievement Award “for his contributions to the profession and the organization.” He was also honored with the Most Infl uential People in California Workers’ Compensation Award. Pearlman has served on the Governor’s Workers’ Compensation Community Task Force and the Administrative Director’s Committee on Permanent Disability and Medical Provider Networks. He is certifi ed by the Division of Workers’ Compensation Medical Unit and the California Department of Insurance as a continuing education instructor. He is a frequent lecturer, speaker, and instructor on current trends in workers’ compensation law and its
Navigating Complicated Laws These issues are affecting many of the fi rm’s clients as the pandemic has complicated an already complex area of the law. “Employers not only have to comply with California state law, but they may have to comply with local county and city ordinances that sometimes confl ict,” says Pearlman. “Clients have asked us to create COVID-19 policies and procedures for their employee manuals. We’ve educated our employer clients on new legislation requiring employers to identify outbreaks of the virus and the consequences of positive virus testing in the workplace. “We handle virtually all aspects of employment law for our clients.” That covers a lot of legal ground. “Our work not only covers employment litigation, but workers compensation defense. There are complicated ‘leave of absence laws’ that exist in California that may be triggered by a work injury. We are capable of handling our clients’ legal needs from all angles. That’s one of our specialties. We not only work with our employer clients, but also with their insurance carriers. When our clients change carriers, they often bring us along, so we have many long-standing and continuous relationships.” California’s workers’ compensation system, says Pearlman, “is a benefi t delivery system that was not intended to be an adversarial system. However, over time it has become one of the most heavily litigated areas of the law. It is important that injured employees receive the benefi ts to which they are entitled, but it is also important
26 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org applications and has also served as an arbitrator for the State Bar of California for more than ten years. The fi rm’s success, says Pearlman, is based on relationships. “We have long-standing relationships with our clients, some for as long as 30 years.” Relationships and loyalty are important not only with clients, but with the fi rm’s staff. “Part of our success is because of the dedication of our staff. We take care of the people who have dedicated their work lives to our fi rm. “We want attorneys who intend to make PB&W their home,” he adds, noting that several employees have been with the fi rm for more than 30 years. “We invest in our attorneys by providing them with training, giving them an opportunity to be successful, and making them stronger and better at what they do.” Partners Steven Wax and Yvonne Lang serve as the “deans” of “PB&W University,” an in-house education program. Associate “professors” include a retired judge, the former managing partner of a law fi rm, and medical lecturers. “Our young associates are assigned partner mentors to offer advice and support.”
Pearlman credits his three equity partners for helping the fi rm look to the future while keeping its solid foundation. “My daughter is a lawyer with our fi rm and I have two equity partners who are younger than me, so when it comes time for me to retire, I’m sure that they will lead the fi rm in a way that best serves our clients, our employees and our community.” www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 27 Make checks payable to VCLF of the SFVBA. The Valley Community Legal Foundation (VCLF) of the SFVBA is a registered 501(c)(3) organization (Tax ID No. 95-3397334). Your contribution is tax-deductible to the extent allowed by law. Mail donation to VCLF, 20750 Ventura Blvd., Suite 140, Woodland Hills, CA 91364. Online donations can be made at http://thevclf.org/blanket-the-homeless-fund. For more information, please call (818) 227-0490.
28 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org By Christine C. Lyden and Mark S. Blackman Blanket the Homeless: MMakingaking a DDifferenceifference fforor 2255 yyearsears
HEN ROBERT WEISSMAN WAS INSTALLED AS companies that manufactured and sold emergency blankets President of the San Fernando Valley Bar which could be purchased for about $5.00 each. Association in 1995, he stated that it was his goal to A call went out for donations from Bar members suggesting encourage every member of the SFVBA to make a difference in that for just $25.00 the donor could supply blankets to 5 people our community. living on the streets. The fi rst year, about 500 blankets were He challenged all of us who were serving at the time as purchased and distributed to local homeless shelters from the members of our Board of Trustees to commit to improving SFVBA parking lot. the public image of the legal profession through community It is wonderful to note that many of the fi rst-year donors outreach. have contributed their support every year since the program Under Bob’s leadership, to reach that goal, several new began. programs, including Blanket the Homeless, a unique program Blanket the Homeless has expanded to include numerous that was specifi cally created to enable members of the SFVBA organizations that generously deliver much-needed assistance to support the growing number of local homeless shelters to the Valley’s homeless. They include MEND, North Valley serving the San Fernando Valley. Caring, Bridge to Home and Loaves & Fishes, all of which When we fi rst started the program, it was our intention provide invaluable services to assist people in fi nding to obtain ‘gently used’ blankets which we hoped to have donated by local hotels. But, we soon learned that there were
The writers of this article, SFVBA Past President’s Christine C. Lyden and Mark S. Blackman have been involved with the ‘Blanket the Homeless’ program for the past 25 years. Their dedication to the program has never wavered and they partner to direct the operation of the program to this day.
www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 29 temporary housing, counseling, mental health treatment, of a misdemeanor offense that enabled the client to fi nd clothing, food, and employment. employment. In the late 1990s, distribution of the blankets was moved Though Blanket the Homeless is managed outside of the from the SFVBA’s offi ces to the North Hollywood facility SFVBA offi ces and, as such, has had no fi nancial impact on operated by LA Family Housing, which offers temporary the SFVBA, the impact on the Valley community has been transitional, as well as permanent, housing and numerous substantial. support services for families in need. Since 1995, more than 50,000 As part of the Blanket the Homeless blankets have been distributed, and program, occupants of the LA Family countless clients have been given much- Housing have been given access to needed access to helpful legal advice. a free legal clinic, staffed by SFVBA For the past 25 years, as a result members who have been incredibly of the contributions made possible by generous in volunteering their time and the generosity of its members, the San legal skills to provide legal consultations Fernando Valley Bar Association has to the facility’s residents. committed to making a difference in our The legal clinic has provided community, just as Bob Weissman asked invaluable assistance to numerous us to at his installation. individuals on a broad range of issues, Blanket the Homeless continues including government benefi ts, housing, today, even in the face of COVID-19. landlord-tenant disputes, bankruptcy, With a greater number of homeless on family law and criminal law. the streets and a continuing housing crisis For example, a past member of the SFVBA Board of which pre-dated the COVID-19 pandemic, the need is greater Trustees, attorney Gerald Fogelman, agreed to go beyond a now than it has ever been. free ten-minute consultation and agreed to represent a resident Please donate what you can to Blanket the Homeless and pro bono and successfully fi led a petition for expungement help us make a difference in our San Fernando Valley.
www.arxisfi nancial.com
30 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org IInn 11993,993, llongtimeongtime VValleyalley rresident,esident, JJudgeudge AArmandrmand AArabian,rabian, thethe fi rstrst judgejudge fromfrom thethe SanSan FernandoFernando ValleyValley toto bbee namednamed toto thethe CaliforniaCalifornia SupreSupremmee Court,Court, waswas presentedpresented wwithith tthehe SSFVBA’sFVBA’s fi rst-everrst-ever LifetimeLifetime AchievementAchievement AAwardward fforor hhisis ddedicationedication ttoo ““justicejustice ttemperedempered wwithith mmercy”ercy” bbyy tthen-Californiahen-California GGov.ov. GGeorgeeorge DDeukmejian.eukmejian. TToo thethe rightright isis SFVBASFVBA PresidentPresident TThomashomas TrentTrent Lewis.Lewis.
lewitthackman.com (818) 990-2120
www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 31 By Tamila C. Jensen and David Gurnick Showdown Over the Pronoun
“On this issue, our court has gone both ways” 1
INCE WRITING BEGAN WITH For the government, courtly and Two centuries later, Geoffrey the ancient Sumerians, the elite the offi cial language was French, Chaucer had a similar role choosing 15th Century invention of the while the common people spoke the to write in vernacular English at a time printing press and, near in time, the vernacular language, English.5 when French and Latin were the more advent of English-language dictionaries, Vernacular–the language of the sophisticated languages spoken in languages have faced ever increasing common people–has, over time, proven England. tensions between standardization and to be the kind of language most prone change.2 3 to change and most refl ective of the real Tensions Made Evident Standardization enables people to lives of the greatest numbers of people. Chaucer and Dante exemplify the understand each other; that is to say, For example, after the breakup of tensions between the elite and the we speak the same language. Change the Roman Empire, the Italian peninsula common people. means language evolves–allowing was a hodgepodge of principalities and In their times, only a handful of talk about the world as it exists in city states. So many dialects were in people were educated, and they wrote in the present. But, at the same time, use that people in Florence could hardly Latin. Commoners spoke various dialects tensions also exist between the speech understand people from the Kingdom of of the vernacular and were generally not of different classes of people. Naples. literate. The structure by which uniformity In England, after the conquest by In the 13th Century, along came the is established, passed on and enforced– William of Normandy in 1066, three poet Dante Alighieri (1265–1326), who higher education–was totally absent. languages prevailed: English, of course; gave the world The Divine Comedy–The And yet, it was with the rise of French, introduced by William; and Inferno, The Purgatorio, The Paradiso the vernacular that the world began to Latin, which became the dominant and is often credited as the Father of dramatically change politically, socially, written language, particularly for English Italian Literature, having written in the spiritually, and economically. law.4 vernacular and standardizing Italian.6 7 With the invention of the printing press in the early 15th Century, books
Tamila C. Jensen is 2020-2021 President and David Gurnick is Assistant Vice President of the Los Angeles County Bar Association. Tamie and David are both Past Presidents of the San Fernando Valley Bar Association.
32 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org and other printed material became language as he goes along, and not all much more widely available than in the hard work of the schoolmarm can earlier times when books had to be hold the business back.8 painstakingly transcribed by hand. According to Mencken, the Ideas, thus, spread ever more rapidly. American is notable for his “revolt against Jacques Barzun, in his book, conventional bonds and restraints” From Dawn to Decadence–500 especially in common speech.9 Years of Western Cultural Life 1500 To bolster his argument, in a later to the Present, argues that the 95 edition of his work, he devotes several Theses of Martin Luther (1517) had pages to discussing pronouns then in their profound effect because they common usage and shares with us this were easily disseminated in common delightful poem, now curiously quaint: languages thanks to Gutenberg’s Whatever is our ain’t theirn. movable type and to development of better quality paper and ink, giving a If it ain’t hisn, then whosn is it? craftsmen the tools to produce new books and pamphlets quickly and I like thisn bettern thatn. disseminate them broadly. Let him and her say what is hisn Reading, writing, and the more and hern, critical thinking these skills engender, were forever no longer limited to the Everyone should have what is elite and clergy. theirn.10 Tension between the standardization and change in A Contemporary Challenge language was discussed at length by This brings us to a contemporary the writer and student of languages, challenge in the English language and H. L. Mencken, in his three-volume particularly in the language of the law. work, The American Language (1919, Our language lacks grammatical 1921, 1923, 1936); The American gender, with the exception of pronouns– Language: Supplement One (1945); English does not have a gender-neutral and The American Language pronoun in general usage.11 Supplement Two (1948). Historically, he was considered Mencken addresses the tension gender neutral in formal speech. But between English as spoken in Britain Americans long ago moved away from and English as spoken in America, using he as gender neutral and adopted which was–and, perhaps, still he/she. is–considered by British intellectuals Meanwhile, people are asking, and American Brahmins as uncouth sometimes insisting on being referred to and even unintelligible. It moved according to their gender identity.12 rapidly away from the mother tongue, The challenge was illustrated this oddly enough and, to some extent, year, in the decision quoted at the retained words and structures that start of this article. In U.S. v. Varner the had become archaic in the England of Court of Appeals for the Fifth Circuit www.112ways.com or several centuries ago. faced a question of litigants, judges, www.stevemehta.com Explaining the American love court personnel and others using and of novelty and lack of conformity, potentially being required to use pronouns 13 Mencken wrote: matching a litigant’s gender identity. “They have acquired that Changing and Evolving character of restless men, that English, like all living languages, is always impatience of forms, that disdain of changing, ever evolving.14 the dead hand, which now broadly In light of today’s active movements marks them. Thus, the American on seeking social justice it has been noted the linguistic side, likes to make his that language is a mechanism “by which www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 33 gender is constructed and reinforced,” UCSF suggests including one’s they, them, their, theirs, themself sie, and that our words used to describe preferred pronouns in their email and hir, hir, hirs, hirself zie, zir, zir, zirs, others or objects can be biased, now asking people which pronouns they zirself including binary gender bias.15 prefer.17 Recognizing this, contemporary At a recent Zoom conference, each writers and speakers often consider use person’s name appeared with their of “they” to be an acceptable gender preferred pronoun stated. neutral pronoun, even when used to refer In fact, the authors of this to a single indi vidual. article have seen email with the Lack of a gender-neutral pronoun lawyer’s signature presented as has been a source of increasing follows:[Attorney’s Name] Partner In 2014, Professor Marshall frustration for members of the LGBTQ (Pronouns: he/ him/ his). This has Thatcher of the University of South community and others who are sensitive potential to become an increasingly Dakota published an article proposing to such concerns. used, potentially standard practice. to create gender neutral third person The University of California San The University of Southern pronouns. Francisco (UCSF) LGBTQ Resource California (USC) LGBTQ Center lists In the article, Thatcher noted the Center lists the following pronouns as the following commonly used gender- workarounds that writers currently being in common usage:16 neutral pronouns: use to avoid using gender specifi c pronouns. These methods included repeating the noun rather than substituting a pronoun. But, he found this method is not always ideal because it may lengthen the text and sound contrived, omitting the pronoun, using passive rather than active voice, pluralizing nouns so that plural rather than gender specifi c third person singular pronouns may be used, and achieving gender neutrality by using the word “one” as a generic referent rather than masculine pronouns.18 Professor Thatcher’s proposal is to adopt the following: • ee–use as a gender neutral third GGrouproup HH-M-M willwill needneed ttoo rreporteport person singular pronoun; this bbyy FFebruaryebruary 11,, 22021.021. would substitute for he or she.
• eet–use as a gender neutral third person singular pronoun to refer to 25 Hour MCLE Packages a person of unspecifi ed sex or to an Including 12.5 Hour of Participatory Credit inanimate actor; he, she, or it.
or Single 6 Hour Specialty Credit Packages. • herim–use as a third person singular object of a sentence to use in place Available via Versatape Competitive Pricing of her or him (such as, “an offi cer shall assist herim). Email: [email protected] for further details! • hermit–use as a third person singular object of a sentence to refer to a person of unspecifi ed sex or a non- human entity in place of him, her, or it.
34 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org • herimself–use as a third person been adopted in writing to avoid 10 H.L. Mencken, The American Language, Supplement 19 Two (Alfred A Knopf, 1948) p. 36. singular reference to in place of gender specifi c pronouns. 11 C. Marshall Thatcher, What Is “EET”? A Proposal To herself or himself. As Martin Luther King famously Add A Series of Referent-Inclusive Third Person Singular Pronouns and Possessive Adjectives to the English said, “the arc of the moral universe is Language for Use in Legal Drafting, 59 S.D. L. Rev. 79 • herimtself–use as a third person 20 S.Dak. L. Rev. (2014) (“Like all living languages, the long, but it bends toward justice.” English language is an evolving work in progress.”). 12 singular reference for a person of Today, it is increasingly recognized See e.g., Privacy Matters v. U.S. Dept. of Education, 2016 WL 6436658, at *1 n.1 (D. Minn., 2016) (Plaintiffs’ unspecifi ed sex or a non-human that ever-evolving language too, even court filings referred to defendant Doe as male and used entity, in place of herself, himself, or masculine pronouns, but did not ask Court to adopt that at the granular level of our pronouns, pronoun usage. Doe referred to herself as female, used itself. feminine pronouns and asked Court to do the same. Court can be a force for that justice. granted Doe’s request, referring to her as female and using feminine pronouns in referring to her.) • hisers–use as a possessive pronoun 1 US. v. Varner, 948 F.3d 250, 255 (5th Cir. 2020). 13 U.S. v. Varner, supra note 1 at 254-255. Illustrative of 2 See e.g., Rickie Sonpal, Old Dictionaries and New a time of transition, the Court noted courts sometimes do in place of his or hers. Textualists 71 Fordham L. Rev. 2177, 2181 (2003) and sometimes do not use parties’ preferred pronouns; (describing earliest English dictionaries in 1400s and and the Fifth Circuit “has gone both ways.” Id. 1500s). 14 Thatcher, supra note 7 at 79 (“Like all living languages, • hiser–use as a pronoun in place of 3 See e.g., Wayne M Senner (editor) The Origins the English language is an evolving work in progress.”); his or her. of Writing (U. of Nebraska Press 1989) p.6 (noting see also e.g., Rudi Keller, On Language Change, Sumerians were the inventors of true writing). The Invisible Hand in Language (Routledge, 1994) 3 4 David Mellinkoff The Language of the Law (Little (“Languages are always changing. Twenty generations • hiserts–as a pronoun in place of his, Brown & Co. 1963) 71, 95. separate us from Chaucer. If we could board a time 5 See, Britt Hanson, A (Mostly) Succinct History of machine and visit him in the year 1390, we would have her, or its. English Legal Language 48 Ariz. Attorney 28, 32 great difficulties in making ourselves understood – even (2012). (noting that judges and lawyers spoke the roughly.”) and 4 (“we find in newspapers printed about language of the court and nobility: Norman French). 40 years ago a wide range of expressions that would be Thatcher argues that incorporation 6 See discussion in John M. Stefano III, On Literature inappropriate nowadays in a similar context”). 15 into English of such new pronouns as Legal Authority 49 Ariz. L.R. 521, 527, 527n.38 Heidi K. Brown, Get With the Pronoun, 17 Legal (2007). Communications & Rhetoric 61, 67 (Fall 2020) (quoting can be expected to achieve results 7 See e.g., Asher Salah, A Matter of Quotation: Dante Nat’l Council of Teachers of English, Statement on Gender and the Literary Identity of Jews in Italy (chapter and Language (Oct. 25, 2018), https://ncte.org/statement/ comparable to the adoption into the in The Italia Judaica Jubilee Conference (Shlomo genderfairuseoflang/). Simonsohn and Joseph Shatzmiller, editors, Leiden: 16 See website of University of California Lesbian, Gay, language of the term Ms. in place of Boston: Brill, 2013) 168 (noting, Dante is considered Bisexual, Transgender Resource Center, https://lgbt.ucsf. Mrs. and Miss and that adoption of to be the spiritual father of literature written in Italian edu/pronounsmatter (last visited Nov. 21, 2020). vernacular). 17 Id. these pronouns would end the clumsy 8 H.L. Mencken, The American Language (Alfred A. 18 Thatcher, supra note 11 at 81. Knopf, 1919) p.22. 19 Thatcher, supra note 11 at 87. or inaccurate workarounds that have 9 H.L. Mencken, The American Language 4th Edition 20 See e.g., Shelby County, Ala. v. Holder, 570 U.S. 529, (Alfred A Knopf, 1962) p. 95. 581 (2013) (Ginsburg, dissenting).
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www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 35 By Roberta L. Tepper The Flexible Lawyer: PPromotingromoting AAgilitygility andand IInnovationnnovation ©2020. Originally published in Law Practice, January 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.
T IS NO SECRET THAT THE years does mean that lawyers need to Notwithstanding these risks, these practice of law is changing at light cultivate agility and embrace innovation services are like catnip to consumers— speed. Unsurprisingly, the proliferation and technology to succeed. They need they’re “easy,” fast and affordable. of law-related technology continues to to become fl exible lawyers. They’re available 24/7/365. Fees and create both challenges and opportunities. costs are a known quantity; they may be Using that technology to create self- Why Lawyers Should Care accessed from any computer or mobile service products for consumers, and the The plethora of DIY legal service device in any location. For the unwary corresponding impact on the practice products in the online market gives consumer, the lure of DIY—keeping of law, has started a sea change that consumers the opportunity to avoid control of their legal matter and saving shows no signs of slowing or abating. a trip to, or the expense of, a lawyer. money, at least in the short run—seems Add to that the increasing “threat” Searches of studies and surveys of irresistible. that artifi cial intelligence (AI) will make these products reveal that while less There’s also been a lot of discussion lawyers obsolete and you have the expensive, these services may not about AI taking lawyers’ jobs. Much perfect storm, leading pessimists to adequately or fully serve their users. of the “competition” for the consumer predict the demise of lawyering as a Some lawyers anecdotally report market is not yet supersophisticated profession. that they are building entirely new and consists of expensive AI. The tools Lawyers and law fi rms, however, clienteles by fi xing the less-than- on which these services are based, are not on the way to extinction. The desirable products resulting from these however, are ones that lawyers can tidal wave of change seen in recent DIY options. easily adopt, including automation,
36 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org document assembly, decision trees and The good news for lawyers is that A consumer choosing a pair of expert systems. help is available. prescription eyeglasses will have a Yes, some AI as well. In fact, the Of course, the ABA’s annual variety of choices and will know in best use of AI in law is, at this specifi c Techshow is an amazing resource for advance the cost of each choice. DIY, time, the combination of AI and a lawyers at all levels of tech competence. or low-touch, legal services offer much lawyer. So let’s stop wringing our hands, The ABA Law Practice Division (LP) the same certainty. Consumers know planning for or dreading the demise offers a wide variety of CLEs, as do up front what their cost will be for that of the legal profession and confi dently local and state bars like the State Bar option, including low-cost, price-certain step forward into the future armed with of Arizona. LP publications are another options for help from a lawyer. It’s no the skills and abilities lawyers offer— rich source of information, in particular surprise that this certainty appeals to combined with a plentiful, yet judicious, the “In One Hour” series of books that consumers, yet how many lawyers offer helping of change and innovation. demystify many products and put a fee schedule on their websites? valuable tools into lawyers’ hands. This is a low-touch version of a legal Tech Competence—Combating Many bar associations have in- representation, although there may be the Fear house advisers, commonly known as a lawyer “on call” online or some kind of Lawyers are smart and resourceful, practice management advisers, available chatbot to answer very basic questions. yet many have failed to keep pace at no cost as a member benefi t. The fact that contact with a lawyer with technology. It isn’t just lawyers These folks provide consultations, is not a primary part of these options though—it’s the whole justice system. recommendations and referrals to clearly appears not to dissuade Why is that? Some have opined that technology products that best suit the consumers from using them; it’s the reasons include the fact that, by individual lawyer or practice. apparent that consumers do not crave and large, lawyers both fear and lack Checklists and guides to the touch of a lawyer if the price is high. competence in technology. assist lawyers in selecting practice The fl exible lawyer will not consider Lawyers, even those who have management and other software, or closing up shop but instead will revamp grown up in a world replete with cloud providers, are available from a their representation design to respond technology, may not feel comfortable variety of sources, including state and to this persistent trend. with implementing it in their practices. local bar practice management advisers. Lawyers were latecomers to the Promoting Agility and Innovation Being a knowledgeable end user There are dozens, perhaps concept of alternative, or predictable, does not automatically translate into the hundreds, of blogs, Facebook groups fees; however, embracing predictable ability to effectively select and implement and other online resources focused on alternative fees is becoming a necessity. technology, nor to be innovative in legal technology as well. Even the most For example, consider the fl at fee. In doing so. Choosing appropriate and tech-friendly lawyers should not hesitate terms of pricing the fl at fee comes with cost-conscious technology can be to rely on the expertise of professionals some degree of risk to both the lawyer a challenge, particularly for solo and in making selections of the right software and the consumer. The lawyer risks that small-fi rm lawyers who may not have IT and vendors for their purposes. the scope of representation will require assistance. more work than anticipated, decreasing Lawyers who panic, or who do Predictable Fees/Unbundled Legal their net gain. not fully educate themselves about the Services On the other hand, the client risks best available options, may end up One of the attractions of DIY services paying the lawyer more than he or she with technology that they do not fully is the predictability of fees. Consumers might if the representation takes less implement, that does not effectively know that for ‘x dollars’ they will get a time than anticipated. or effi ciently interconnect, or that they specifi c product or end result. This is At the fi nancial bottom line, do not understand. But lawyers do not consistent with many other professional successful implementation of fl at fees have the luxury of going old school services in the marketplace; for depends on integrating technology into and avoiding technology, particularly if example, consumers know the cost they a lawyer’s practice. Determining the they want to remain relevant in today’s will bear when purchasing vision care. market.
Roberta L. Tepper is the director of lawyer assistance programs for the State Bar of Arizona. She also serves on the ABA’s Law Practice Division Council. Contact her at [email protected].
www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 37 appropriate fl at fee requires an analysis services they are opting for and the of the time that will be necessary to associated prices. “Scope creep,” ERISA successfully accomplish specifi c tasks the slow and insidious increase in the to permit the lawyer’s calculation of the amount of work to be handled for LAWYERS fee. The successful use of timekeeping the same fi xed price, is the downfall software makes this process driven by of both fl at fees and unbundled legal facts rather than by guesses. services. LONG TERM DISABILITY, Equally essential is automating LONG TERM CARE, HEALTH, routine tasks, routine documents and Project Management EATING DISORDER, AND LIFE internal processes, including utilizing Project management is a relatively INSURANCE CLAIMS paraprofesssionals and staff as well as new concept in the legal world, but maximizing other time-saving solutions. it has caught on like wildfi re. Even in WE HANDLE BOTH To successfully compete with a DIY law fi rms still billing hourly, project ERISA & BAD FAITH service, streamlining processes and management has become essential MATTERS reducing or eliminating repetitive work to provide the certainty and extra is vital. value consumers demand. For larger Technology provides essential fi rms, or for larger litigation, it may • California Federal and tools to help in this endeavor, as there be impossible to unbundle or to State Courts are a variety of stand-alone document adequately predict and charge a fi xed automation tools and process fee. • More than 20 years automation tools in addition to practice Even in those circumstances, experience management software suites that however, project management is incorporate them. a tool by which a combination of An increasing number of practice technology and cost containment • Settlements, trials management platforms offer features may produce a representation that and appeals such as rules-based calendaring, is consumer-focused and frugal. client portals and more—providing the Tools like Asana and Trello are useful tools to provide quality service while to manage specifi c tasks within the minimizing routine labor-intensive tasks. project and coordinate virtual teams, Referral fees as allowed Software specifi c to individual practice thereby utilizing the best possible talent by State Bar of California areas is also available. regardless of their location. In addition, workfl ow automation tools like Zapier and IFTTT make it Bespoke Legal Services Handling matters easier than ever to connect software Offering unique legal services, from and apps, thereby eliminating much scratch, is another option. This throughout California “busy” work and allowing lawyers to might include crafting one-of-a-kind focus on work only they can provide. contracts or legal services created for The partner of successful clients with unique needs. Creating automation is limited scope this kind of niche practice may be representation, often called “unbundled the result of focused networking 818.886.2525 legal services.” Permitting consumers and marketing or it may simply be to opt in on legal services for specifi c serendipity, falling into a narrow, aspects of their cases and opt out specialized area of practice. Either for tasks they have the ability to way, it’s an option to consider when accomplish on their own is key to considering providing unique value in providing value for service. This is the marketplace. the hallmark of the fl exible lawyer—to Another bespoke variety of legal www.kantorlaw.net understand that the old model of taking service offers personalized client Dedicated to helping people over the litigation in full is no longer service balanced by the kind of high- receive the insurance what consumers either desire or can touch/high-volume made possible by benefits to which they afford. successfully implementing technology. are entitled Equally important is the ability Clients get face-to-face lawyer contact to clearly articulate to the client the with the one-on-one attention they
38 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org want. The lawyer balances these time- A true home offi ce may be an intensive interactions by minimizing option if you have the means to have redundant work through process and an entirely separate space that you can document automation and leveraging secure from the rest of your household. STATE AND FEDERAL technology, including some of the tools Offi ce sharing, on-demand or offi ce CRIMINAL DEFENSE mentioned above. co-ops and home offi ces all bear some Firm Partners: ethics-related thought, particularly Bar-Certified Criminal Law Specialists Filling the Legal Gap concerning confi dentiality. The need UCLA and Pepperdine Law Professor Much attention has been focused to be able to protect the confi dentiality Former Senior Deputy District Attorney on access to justice and the gap in of clients and all information relating to legal services, resulting in part of the their representation may guide some of proliferation of DIY products. Pro bono a lawyer’s decisions on this front. legal services have been the frequent For example, having a shared target of this focus, but the legal service receptionist to intake clients may seem gap is much larger. ideal, but having a shared receptionist Consumers—that is, potential who also serves other lawyers who may clients—who do not qualify for pro handle cases adverse to yours may be bono legal services and yet cannot problematic. afford traditional full-freight legal A call to your bar’s practice services comprise a large and largely management adviser will help you work underserved population. These are through these issues. Or try an ethics the consumers who are more likely to lawyer or take advantage of some of RECENT VICTORIES: either access DIY solutions or represent the self-help options available through $3 Million Fraud Case: Dismissed, Government Misconduct (Downtown, LA) themselves pro se. the ABA and other online entities. Murder: Not Guilty by Reason of Insanity, Lawyers seeking traditional lawyer Even those fl exible physical offi ce Jury (Van Nuys) fees and salaries are missing a great options may not necessarily meet Medical Fraud Case: Dismissed, Preliminary opportunity. Reimagining a legal the demands of prospective clients, Hearing (Ventura) Domestic Violence: Not Guilty, Jury Finding practice can address the representation including but certainly not limited of Factual Innocence (San Fernando) gap and enable a visionary, fl exible to millennials. Have you noticed the $50 Million Mortgage Fraud: Dismissed, lawyer to build and grow a thriving number of professional services located Trial Court (Downtown, LA) practice. in malls, in big-box stores and other DUI Case, Client Probation: Dismissed Search and Seizure (Long Beach) Key to this reimagining is, as one less traditional settings? This doesn’t Numerous Sex Offense Accusations: might anticipate, leveraging technology involve whether the argument for or Dismissed before Court (LA County) to provide effi cient and cost-effective against non-lawyers having shares Several Multi-Kilo Drug Cases: Dismissed due to Violation of Rights (LA County) services and embracing limited scope in legal practices is interesting or Misdemeanor Vehicular Manslaughter, representation and unbundled legal acceptable. multiple fatality: Not Guilty Verdict services. What about having a law offi ce in a (San Fernando) Add to that fl exibility about physical local Target, WalMart or other store or Federal RICO prosecution: Not Guilty verdict on RICO and drug conspiracy location and venue, with an agile and strip mall where legal-gap consumers charges (Downtown, LA) consumer-friendly website, and you may be found? Having offi ce hours Murder case appeal: Conviction reversed based on ineffective assistance of trial have a recipe for a vibrant practice. other than 8:00 a.m. to 5:00 p.m., counsel (Downtown, LA) Monday through Friday, could be High-profile defense: Charges dropped against celebrity accused of threatening Offi ce? Where and When? effective in reaching the underserved government officials Lawyers reimagining their practice must who might need to work during regular consider where, or whether, to have business hours. a physical offi ce. If a physical offi ce is It isn’t necessary to have a practice necessary, what specifi c needs must that is available 24/7/365. In fact, in be met? Is there a need for meeting consideration of the work–life balance Eisner Gorin LLP space or is an offi ce set up for just the and wellness lawyers should achieve, 877-781-1570 lawyer all that is required? Technology that kind of schedule isn’t advisable. Immediate Response makes virtual offi ces possible, perhaps But having a practice that makes help www.EgAttorneys.com augmented with some on-demand available when clients have time to Offices in Van Nuys and Century City meeting space. attend to their own personal matters www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 39 should be an option. For example, environment. Clients accessing this to seriously consider of any HIPAA a lawyer specializing in defending mix-and-match type of practice have requirements that affect them. charges of driving under the infl uence the advantage of opting to spend their The cloud-based practitioner also may be well advised to be available in limited funds effectively while assuring must pay attention to the access and the overnight hours. themselves of a local, knowledgeable permissions of staff and outsourced lawyer as an on call option. workers. Those who use virtual Consumer-Friendly Websites Giving some products or tools services, such as virtual receptionists, It’s vital to have an agile and well- away may serve as effective advertising, must determine the degree of access designed website. It is no longer build loyalty with existing clients or to individual client data permitted by the suffi cient to have a site that looks great generate leads for future business. local variant of the Rules of Professional on a desktop computer but is the For example, offering a child support Conduct. electronic version of a print ad in other calculator or a spousal maintenance Tomes have been written about formats. Today’s websites need to be estimator to prospective domestic basic cybersecurity, including password mobile-friendly and have responsive relations clients may be a positive integrity, avoiding ransomware, design. course to follow. phishing and scams; some of this The fl exible lawyer will look at their reverts to our earlier discussion about web design from the consumer’s point lawyers and their need for technical of view and plan accordingly. competence. Consumers want added value, so Do these concerns mean that a the website must convey that message. cloud-based practice is inadvisable? The added value may be a short video Of course not; these are merely issues explaining a specifi c topic that will help to be considered and challenges to clarify that point of law or process to be resolved. Having a cloud-based the consumer. practice is essential in meeting the While it is a good practice to avoid needs of clients and lawyers. creating confl icts by allowing potential The fl exible lawyer’s practice clients to submit their confi dential requires the agility that the cloud information at their option, the website provides, not the least of which are should allow a potential client to ask for the automation of your practice and an appointment or to fi ll out some very processes and the continual automatic basic intake information. updating of the products you are using. Ethics and Cloud Computing It’s not possible to consider fl exible Other Services and Productizing It’s no longer practical, or even locations and hours, and lowering cost The example set by some forward- possible, to avoid the cloud while by effectively using technology and thinking lawyers across the country in practicing law. Having practice data outsourcing administrative functions “productizing” their legal services can in the cloud offers myriad benefi ts, without safe use of the cloud. help in making a practice fl exible. It including mobility, scalability and is necessary to do some groundwork fl exibility, while creating new challenges Becoming Flexible and research, and speaking with a that need to be addressed and It’s a brave new world out there. lawyer who focuses on professional resolved. Despite the glum predictions of some, responsibility (i.e., ethics) or your Above all, security and privacy are it isn’t the beginning of the end for local practice management adviser key to maintaining client confi dentiality. lawyers or for law as a profession. or ethics hotline is a must. Deciding In addition to general cybersecurity What is necessary for lawyers to what services to offer and what prices considerations, lawyers with client/ remain relevant, though, is taking a requires that the lawyer assess their practice data in the cloud must be fresh look at the practice of law and abilities and infrastructure. mindful of the specifi c security needs how it is conducted. Legal technology A number of lawyers have entered of individual clients, in addition to the continues to evolve at a rapid pace into the document preparation arena type of law practice information they and provides the tools by which as an adjunct to their legal practice. maintain. fl exible lawyers—or those seeking to There are ethical considerations to be For example, clients with special become fl exible—may reimagine and resolved, depending on the individual security clearances may have specifi c reinvigorate their practices to meet the jurisdiction, but this option brings the requirements, and practices that handle needs of their future clients and the fl exible lawyer directly into the DIY medical reports and information need profession.
40 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org Valley Lawyer
Our most sincere condolences are extended to SFVBA Should bar Past President Christine C. Lyden on the recent passing exams have of her mother and long-time SFVBA member Mark multiple choice Blackman on the passing of his mother-in-law. questions and essay questions–and Connecticut-born defense attorney David Kestenbaum if not, what chose to pursue a career in the law after completing his should replace undergraduate studies at Boston University. them? Having grown tired of shoveling snow, he moved to According to a new report from the Institute for California to attend Southwestern Law School, graduating the Advancement of the American Legal System, in 1978 and was admitted to legal practice the following multiple choice questions should be used sparingly, year. “I grew up watching Perry Mason on TV. He was my if at all, and that ideally, essay questions should be idol and he always seemed to be the one who unraveled the replaced with performance tests. The study also case by turning the witness on the stand,” he remembers. recommends that any multiple choice and essay “I actually had a ‘Perry Mason moment’ case where I got questions that are given should be open book, with a prosecutor to admit that he had denied contacting and more time for completion than is currently allowed, threatening a witness in the case. If she didn’t testify, he’d and that supervised clinical work should be required have her children taken away. He denied that he had said for licensure. that and I just so happened to have a tape recording of him saying just that.” A rabid baseball fan, Kestenbaum’s office in Van Nuys is a museum dedicated to the game with memorabilia ranging from bobble-head dolls and Members of the SFVBA’s sister autographed baseballs to team photos and a pair of seats Bar, the Santa Clarita Valley Bar from Boston’s storied Fenway Park. Criminal law, says Association, recently elected a new Kestenbaum, “is a lot like baseball. There’s always hope Executive Board Officers and Trustees until the last out.” who will lead the group through the upcoming year. Congratulations go to President, Taylor F. Williams-Moniz; President-Elect, Jeffrey D. Armendariz; Secretary, Christine Reynolds Inglis; and Treasurer, Lucas Rowe. The new Trustee Board will consist of Corey Carter, Robert Castillo, John Noland, and Cody Patterson. SFVBA President-Elect Christopher Warne will serve as Liaison between the two organizations.
TIP: Justia Daily Opinion Summaries–https://law. California Gov. Gavin Newsome has named ten individuals justia.com–is a free on-line service with 68 different to serve on the Los Angeles County Superior Court bench. newsletter covering federal appellate and state Nine of the new judges fill the vacancies left by several high court opinions on a daily basis. Justia also retirements, while the tenth replaces Judge Stanley offers weekly newsletters in 63 different areas Blumenfeld, who resigned upon confirmation as a of legal practice including criminal, employment, judge of the United States District Court for the environmental, labor, property, probate, product Central District of California. For more details, go to liability, transportation, trust and estate, and zoning www.metnews.com/articles/2020/Appoint11162020.htm and land-use law.
www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 41 The Attorney Referral Service of the SFVBA is a valuable service, one that operates for the direct purpose of referring potential clients to qualified attorneys. It also pays dividends to the attorneys involved. Many of the cases referred by the ARS earn significant fees for panel attorneys.
• SSeniorenior CitizenCitizen LegalLegal ServicesServices • MModestodest MMeanseans ProgramProgram • SSpeakerpeaker BureauBureau • FFamilyamily LLawaw LLimitedimited SScopecope RRepresentationepresentation HHablamosablamos EspañolEspañol
www.SFVBAreferral.com
42 Valley Lawyer ■ DECEMBER 2020 www.sfvba.org ATTORNEY REFERRAL SERVICE
MIGUEL VILLATORO ARS Associate Director Adapting to Generate of Public Services New Business
URING THESE HARD TIMES, we developed a mutual respect for one source of acquiring new clients that many businesses are trying to another throughout our years of practice. I otherwise would never have been fi gure out creative ways to keep He suggested that I look into SFVBA exposed to.” their fi rms afl oat and generate revenue. Attorney Referral Service and see if I In addition to the revenue generated Everywhere, we can see restaurants would be interested in joining.” by ARS attorney panel members, the putting tents in their parking lots in order What compelled him to sign-up with reasonable referral fees garnered by to serve their customers, while business the Referral Service? “After talking with the ARS help maintain a unique service owners are utilizing app-based delivery my friend and researching more about the to the community that supplies much- services to get their goods delivered to Bar Association, I saw that it was a great needed assistance provided by qualifi ed clients. It seems that more and more organization and immediately joined. They and experienced legal professionals to businesses, every day, are forging ahead really want to help the community and I those seeking legal help, often in times and adapting to changing times and am fortunate to be a part of it.” of professional or personal crisis. circumstances. “I would encourage interested attorneys to join,” says Koehler. “It is an effective avenue to new referrals and it helps the ARS. It’s a good mutual relationship.” Attorney and best-selling author Elizabeth Edwards once wrote, “Resilience is accepting your new reality, even if it’s less good than the one you Veteran attorney William Koehler had before. You can fi ght it, you can do Law practices are adapting too. has been an active part of the Attorney nothing but scream about what you’ve Attorneys serving on the San Fernando Referral Service for almost two decades lost, or you can accept that and try to Valley Bar Association’s Attorney Referral in general practice with an emphasis on put together something that’s good.” real estate, business, and family law. It may seem that the times ahead Service panel continue to generate revenue “Obviously, it’s a good relationship are uncertain, but, every day, we need above and beyond that produced by since I’ve stayed involved for 20 years,” to remind ourselves that we must remain routine marketing and word-of-mouth he says. “It has proven to be a great resilient and adaptable. referrals. Attorneys are working with ARS to accommodate potential clients, such WORKERS’ COMPENSATION STATE CERTIFIED SPECIALIST as senior citizens that are sheltering in place due to the pandemic, landlords/ tenants, business owners/employees, and families facing unique problems due to the pandemic. Attorney Barry M. Rodich joined the ARS just two months ago. His practice William J. Kropach Over 40 years combined experience. William H. Kropach focuses on workers’ compensation, [email protected] [email protected] Chairman Workers’ representing workers injured on the job. Comp Section REFERRAL FEES PAID—CALL “I heard about SFVBA attorney referral SFVBA 1987-2000 818.609.7005 service from a friend,” he says. “We Volunteer of the Year SFVBA 2003 www.williamkropach.com practiced in the same fi eld together and
www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 43 Valley Community Legal Foundation OF THE SAN FERNANDO VALLEY BAR ASSOCIATION
CHARITABLE ARM OF THE SFVBA SUPPORTING LEGAL NEEDS OF VALLEY YOUTH, DOMESTIC VIOLENCE VICTIMS, AND VETERANS WORKING WITH JUDGES AND OTHERS IN THE VALLEY LEGAL COMMUNITY SPONSORING TEEN COURT CLUBS AND LAW MAGNETS AT 9 VALLEY HIGH SCHOOLS PROVIDING EDUCATIONAL GRANTS FOR LEGAL CAREERS SUPPORTING LAW-RELATED PROJECTS IN THE VALLEY ASSISTING VALLEY RESIDENTS IN NEED
VCLF SUPPORTS THE FOLLOWING ORGANIZATIONS
OF SAN FERNANDO VALLEY
RECENT SCHOLARSHIP RECIPIENTS INCLUDE STUDENTS AT
To donate to the VCLF or to learn more, visit www.thevclf.org and help us make a difference in our community VALLEY COMMUNITY LEGAL FOUNDATION
KIRA S. MASTELLER VCLF Co-President Learning from 2020’s Wild Ride
HIS YEAR HAS BEEN A it in conversation with family members; to get everyone we know to agree to whirlwind ride between the start it with your friends, your colleagues one way to do something as there well COVID-19 pandemic, compelling and even with strangers. may be four ways to do something that social issues, the recent elections and What are some of your hot button distributes the concerns of all among the their post-election goings-on. And it issues? How has discrimination possibilities. seems like there are more ready questions affected you or a family member? What Take a few minutes. Think it through. than answers fl oating around. need is not being addressed in your What are you personally concerned with? What can we–as citizens of our neighborhood? Or at work? Education issues? Student debt? Civil country, our state, our city, and our local Bring it up. Talk about the issue and rights, poverty, and access to affordable community–learn from this hectic and ways for all of us to learn about how and housing? The environment, climate complicated year so that we can actively whom it affects. change, the ethics of scientifi c research. play a part in crafting the solutions we all How can we each learn more about Write them down. Start with one seek vs. furthering “causes” that divide one another? Hear from and listen to item and keep going until you get and pit us one against the other? every person you discuss the issue with; through your list. Your list can be the Do individuals really want division for identify the differences and then identify catalyst of an article, a letter to your their own ends, or do we all want to see the similarities. local representatives, to your state progress for the common good in the form Is there a solution? Ask each person representatives, to our national leaders. of solutions to the issues that affect all of you converse with about what they see You will not be heard if you do not us day in and day out? as ways to resolve the problem and listen speak up. The issues are legion–COVID-19, to what they think would help, especially Start the conversation. It will make a discrimination, economic problems, living if it differs from what you think. This is difference. From every difference, we can wages, affordable housing, mental health the only way we can learn from each all learn to everyone’s benefi t. treatment, preventing homelessness, other. TIP: Consider ordering the book, and genuine leadership vs. political It is how we start down the path Believe in People, by Charles Koch and gamesmanship. to fi nding the answers to the problems get a surprising take on how you can Can we come to the table to rationally we all face. As with so many things we play a role in tackling the seemingly discuss diffi cult issues with the goal all face every day, there is usually more overwhelming issues facing our society of fi nding workable solutions? Can we than one answer. We do not have to try and our nation. listen to each other? Can we be open to discussing solutions “we” or “our side” Robert Graf did not think of? Is it possible to consider DRE# 01469117 that what we “know for sure” just may not be the answer? Is it possible that we are Will provide all vendors necessary to prepare any property for sale. more invested in being “right” than we are in reaching a solution? Attorney references provided upon request. Can we in the San Fernando Valley Serving greater Los Angeles, Ventura, legal community use our mediation skills, and Orange County areas. gained from years of experience working with clients to help our community sensibly work through these divisions? O: 818.368.6265 | M: 818.399.9455 | E: [email protected] The answer: Yes, we can. www.RobertGraf.com | 11141 Tampa Ave., Porter Ranch, CA 91326 How? Start the conversation. Start www.sfvba.org DECEMBER 2020 ■ Valley Lawyer 45 CLASSIFIEDS BURNED ATTORNEY-TO-ATTORNEY BY YOUR REFERRALS SFVBA STATE BAR CERTIFIED STOCKBROKER? WORKERS COMP SPECIALIST SECURITIES LAW Over 30 years experience-quality CLAIMS AGAINST MCLE practice. 20 percent referral fee paid to STOCKBROKERS attorneys per State Bar rules. Goodchild StockMarketLossesCausedby: & Duffy, PLC. (818) 380-1600. • Excessive Trading in Account Seminars • Unsuitable Investments • Misrepresentation SPACE AVAILABLE • Variable Annuities • Breach of Fiduciary Duty ENCINO • Reverse Convertible Bonds Audio Encino Office in Class A Bldg. Appx. LAW OFFICES OF 14’x16’ office w/floor to ceiling windows JONATHAN W. EVANS & & 180° view of Valley in shared 1,100 ft 10th Fl Suite w/room for asst. 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