Santa Barbara Official Publication of the Santa Barbara County Bar Association August 2016 • Issue 527 Lawyer Inside this Issue: Santa Barbara County Bar Association Annual Barbecue KEITH C. BERRY Years of Experience and Local Expertise in the South Coast Santa Barbara Real Estate Market WE KNOW MORE, TO GET YOU MORE! Up-to-the moment market knowledge Connecting sellers to the most qualified buyers Greater exposure to sell your home in the shortest practical time Personal attentive and tailored service to meet the specific needs of each customer K EI T H C . B ERR Y Realtor®,CRB, CRS, GRI, ABR Previews Estates Director & Architectural Properties Division Specialist MOBILE: 805.689.4240 | OFFICE: 805.563.7254 | MAIL: PO Box 5545, Zip 93150 1482 East Valley Road, Suite 17 Santa Barbara, CA 93108 [email protected] www.KeithBerryRealEstate.com facebook.com/KeithBerryRealEstate linkedin.com/in/keithcberry ©2015 Coldwell Banker Real Estate LLC. All Rights Reserved. Coldwell Banker Real Estate LLC fully supports the principles of the Fair Housing Act and the Equal Opportunity Act. Each Coldwell Banker Residential Brokerage office is owned by a subsidiary of NRT LLC. Coldwell Banker® and the Coldwell Banker Logo, Coldwell Banker Previews International® and the Coldwell Banker Previews International Logo, are registered service marks owned by Coldwell Banker Real Estate LLC. 2 Santa Barbara Lawyer August 2016 3 Santa Barbara County Bar Association Santa Barbara Lawyer www.sblaw.org A Publication of the Santa Barbara 2016 Officers and Directors County Bar Association ©2016 Santa Barbara County Bar Association JAMES GRIFFITH LETICIA ANGUIANO TRAVIS LOGUE President Vice President and Counsel Rogers Sheffield & Campbell, Law Offices of James P. Griffith MUFG Union Bank NA LLP CONTRIBUTING WRITERS 25 E. Anapamu #2 1021 Anacapa Street 150 E. Carrillo Street Joseph Billings Santa Barbara, CA 93101 Santa Barbara CA 93101 Santa Barbara, CA 93101 Claude J. Dorais T: 962-5821 [email protected] T: 963-4700 Robin Oaks [email protected] [email protected] Aryn Z. Phillips ERIC BERG Mark J. Phillips MICHAEL DENVER Berg Law Group NatHAN ROGERS President-Elect 3905 State St Ste. 7-104 The Law Office of Nathan C. Robert Sanger Hollister & Brace Santa Barbara, CA 93105 Rogers Jeffrey Soderborg P.O .Box 630 T: 708-0748 P.O. Box 1496 Clark Stirling Santa Barbara, CA 93102 [email protected] Santa Barbara, CA 93102 T: 963-6711 T: 591-8000; F: 591-8001 EDITOR [email protected] JOSEPH BILLINGS [email protected] James M. Sweeney Allen & Kimbell, LLP JEFF CHAMBLISS 317 E. Carrillo St JAMES SWEENEY Secretary Santa Barbara, CA 93101-1488 Allen & Kimbell, LLP ASSISTANT EDITOR Santa Barbara County Public De- T: 963-8611; F: 962-1940 317 E. Carrillo St Lida Sideris fender’s Office [email protected] Santa Barbara, CA 93101-1488 1100 Anacapa Street T: 963-8611; F: 962-1940 MOTIONS EDITOR Santa Barbara, CA 93101 MICHAEL BRELJE [email protected] Michael Pasternak T: 568-3497 Grokenberger & Smith [email protected] 152 E. Carrillo Street ELIZABETH E. VOGT VERDICTS & DECISIONS Santa Barbara CA 93101 Law Offices of Elizabeth E. Vogt AMBER HOLDERNESS T: 965-7746 926 Garden Street EDITOR Chief Financial Officer [email protected] Santa Barbara, CA 93101 Lindsay G. Shinn Office of County Counsel T: 568-0446 105 E. Anapamu Street, #201 ELIZABETH DIAZ [email protected] PROFILE EDITOR Santa Barbara, CA 93101 Legal Aid Foundation James P. Griffith T: 568-2969 301 E. Canon Perdido Street [email protected] Santa Barbara, CA 93101 PHOTO EDITOR T: 963-6754 LIDA SIDERIS NAOMI DEWEY [email protected] Executive Director Mike Lyons Past President 15 W. Carrillo Street, Suite 106 Buynak Fauver Archbald & Spray STEVE DUNKLE Santa Barbara, CA 93101 GRAPHIC DESIGN 820 State Street, 4th Floor Sanger, Swysen & Dunkle 569-5511; Fax: 569-2888 Baushke Graphic Arts Santa Barbara, CA 93101 125 E. De La Guerra, Suite 102 [email protected] T: 966-7422 Santa Barbara, CA 93101 PRINT PRODUCTION [email protected] T: 962-4887 [email protected] Printing Impressions EMILY ALLEN Legal Aid Foundation Submit all EDITORIAL matter to 301 E. Canon Perdido Street [email protected] Santa Barbara, CA 93101 with “SUBMISSION” in the email T: 403-5224 subject line. [email protected] Submit all MOTIONS matter to Michael Pasternak at Mission Statement [email protected]. Santa Barbara County Bar Association Submit all ADVertisinG to SBCBA, 15 W. Carrillo Street, The mission of the Santa Barbara County Bar Association is to preserve the integrity of the Suite 106, Santa Barbara, CA 93101 legal profession and respect for the law, to advance the professional growth and education phone 569-5511, fax 569-2888 of its members, to encourage civility and collegiality among its members, to promote equal Classifieds can be emailed to: access to justice and protect the independence of the legal profession and the judiciary. [email protected] 4 Santa Barbara Lawyer Santa Barbara Official Publication of the Santa Barbara County Bar Association August 2016 • Issue 527 Lawyer Articles 24 The Santa Barbara & Ventura Colleges of Law Names New Dean; Jackie Gardina Tapped as Chief 6 Unitrust Conversions and the Opportunities They Present Academic Officer for one of California’s Leading for Win-Win Resolutions for Both Beneficiaries and Regional Law Schools Trustees, By Claude J. Dorais 25 Short Story Contest, Featuring Clark Stirling 7 SBCBA Barbecue 2016 8 Trials of the Century, By Mark J. Phillips and Aryn Z. Phillips Sections Verdicts and Decisions 12 Getting to Know The Santa Barbara Barristers, By 26 Jeffrey Soderborg and Joseph Billings 31 Classifieds 14 City of Petaluma v. Superior Court: Upholding Attorney-Client Privilege and Work Product About the Cover Protections When Attorneys Conduct Workplace Emily Allen, Elizabeth Diaz, Jill Monthei and Rusty Brace Investigations, By Robin Oaks, J.D. serve up the annual SBCBA barbecue. Coverage begins on 19 Virginia and Tobacco, By Robert Sanger page 7. August 2016 5 Feature trust instrument is silent. Unitrust Conversions Discussion of an actual recent matter illustrates and the Opportunities the concept: They Present for Win- An elderly lady passed away leaving a substantial Win Resolutions for Both estate, the largest asset of which was a paid-for Beneficiaries and Trustees home in our area. Other BY CLAUDE J. DORAIS* assets included limited partnership and similar eing a trustee has never been an easy job. It involves interests in other states, keeping the big picture in focus and at the same time assets which were difficult B paying attention to the myriad details involved. Add to value, almost impos- Claude J. Dorais to that the often competing interests of different beneficia- sible to market, and which ries and the need to manage funds over time, sometimes paid irregular income. The for many years, and the task becomes even more daunting. life beneficiary was the client’s longtime companion, and How is a trustee to properly balance the desire to protect the remainder beneficiary was a charity. against erosion by inflation, the need for reasonable cur- The trustee selected by the settlor faced several chal- rent income, the desire for long-term real growth and the lenges. The largest single asset, by far, was the home and importance of protecting principal – all at once? A trustee it was costly to maintain. Other assets generated income, can try to reconcile all of this by looking at “total return,” but not enough to maintain the home and generate sig- but how does that play out when one class of beneficiaries nificant income for the immediate beneficiary, who had is entitled to income and another ultimately gets what is a life expectancy of approximately 30 years. The trustee left? A trustee often has some discre- reasonably concluded that there was tion in classifying income and principal, little he could do to raise the income but going that route usually requires “How is a trustee to stream from the non-home assets. He ongoing decisions, with the discussion, was faced with the prospect of be- potential criticism, downside risk, and properly balance … when ing unable to adequately address the stress that often comes from regularly one class of beneficiaries short-term needs of the life beneficiary revisiting what may be a touchy sub- or with invading principal to generate ject. is entitled to income and reasonable present distributions for the The current investment climate life beneficiary, a strategy which would brings some of the inherent tensions another ultimately gets consume the non-home assets and was of the trustee’s overall investment re- thus fatally flawed. sponsibilities into even sharper focus. what is left?” Counsel for the life beneficiary, John Returns on the most conservative and Parke of Allen & Kimbell, LLP, came liquid investments are very, very low. up with what turned out to be the best The best opportunities for true growth may well be longer solution for everyone – conversion into a unitrust. The term investments that generate little or no current income. proposed long-term payout rate of 4% was reasonable and A unitrust is one of the tools that is often overlooked as was approved by the remainder beneficiary. Those pesky a technique for reconciling tensions between current and limited partnership assets were a small part of the overall remainder beneficiaries. A trust instrument can specifically estate and were simply carved out from the asset base to discuss the unitrust approach, dictate whether it is allowed which the unitrust percentage was applied. and, where allowed, can set parameters. However, it seems It was explained to the life beneficiary that the home she that most estate planning trust agreements, where at least continued to occupy was not part of the unitrust asset base, the income beneficiaries are natural persons, are silent on but once it was sold the base would rise considerably and the subject.