Lawyer. Santa Barbara. Client Relations. Perspectives from Local Practitioners

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1 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association August 2009 Issue 443 Client Relations Perspectives from Local Practitioners

2 Kelly Knight has been in your shoes. And that s exactly why she s become The Lawyer s Choice in Santa Barbara Real Estate. To this leading real estate professional, Nothing Matters More. Trust. Kelly Knight knows it s an essential element of a successful working relationship. For more than 15 years, she excelled as a lawyer and real estate mediation expert before turning her sights to real estate and earning her reputation as The Lawyer s Choice in Santa Barbara real estate. KELLY KNIGHT THE LAW YER S CHOICE Call Kelly today to request your free copy of her valuable report, 29 Essential Tips That Get Homes Sold Fast (And For Top Dollar.) Direct: (805) Cell: (805) Web site: The years of her life devoted to practicing law provide her with a unique perspective of the real estate needs of both yourself and your clients. As a lawyer, your clients trust you to guide them to the best real estate representation possible. Because she s been in your shoes, that s exactly where Kelly comes in. Her determination and high-quality real estate services will earn your trust from the moment you meet her. Whether you re looking to buy or sell property or if you require real estate representation to facilitate closure of a client s estate or settlement, don t take any chances. Instead, look to Kelly Knight for all your real estate needs. With years of experience as a practicing lawyer here in Santa Barbara, there s no more trustworthy choice. 2 Santa Barbara Lawyer

3 McIvers&Slater_7.5x4.5.ad:McIvers&Slater 7/8/09 2:47 PM Page 2 McIvers & Slater Mediation and Arbitration Kevin Thomas McIvers Hon. James M. Slater Judge of the Superior Court, Ret. Excellence in Dispute Resolution Business Disputes Real Estate Elder Abuse Professional Liability Medical Malpractice Insurance & Bad Faith Employment & Wrongful Termination Construction Contract & Defect Personal Injury & Wrongful Death (805) East Anapamu Street Santa Barbara, CA Attorneys and Legal Professionals... The Santa Barbara County Attorney Directory is now available. Features updated court listings and resource information. Contact Brandi Redman to order your copy today! August

4 Melissa Fassett President Price, Postel & Parma LLP 200 E. Carrillo Street, Suite 400 Santa Barbara, CA T: F: Lynn E. Goebel President-elect; Events Committee Ehlers, Fairbanks & Goebel, LLP 15 West Carrillo Street, Suite 217 Santa Barbara, CA T: F: Mack Staton Secretary Bench and Bar Conference (2010) Mullen & Henzell LLP 112 E. Victoria Street Santa Barbara, CA, T: F: Catherine Swysen Chief Financial Officer Sanger & Swysen 233 E. Carrillo Street, Suite C Santa Barbara, CA T: F: William Clinkenbeard Past President Bench and Bar Conference (2010) Clinkenbeard, Ramsey & Spackman, LLP Post Office Box Santa Barbara, CA T: F: Santa Barbara County Bar Association Officers and Directors Lora Brown Liaison, Legal/Community Associations Hardin & Coffin, LLP 1531 Chapala Street, Suite 1 Santa Barbara, CA T: F: Luis Esparza Events Committee Esparza Law Group, PC 1129 State Street, Suite 13 Santa Barbara, CA T: F: Saji Dias Gunawardane Santa Barbara Lawyer Editor-in-Chief Law In Motion, PC 924 Anacapa Street, Suite 2-J Santa Barbara, CA T: F: Jennifer Kruse Hanrahan MCLE Chair Attorney at Law 285 Chateaux Elise, Suite B Santa Barbara, CA T: F: Richard F. Lee Liaison / Bench and Bar Reicker, Pfau, Pyle and McRoy 1421 State Street Santa Barbara, CA T: F: Donna Lewis Special Projects Attorney at Law 1727 Bath Street #B Santa Barbara, CA T: F: Cristi Michelon Events Committee Eaton, Jones & Michelon 1032 Santa Barbara Street Santa Barbara, CA T: F: John J. Thyne III Law Day/Law Week The Law Offices of John Thyne 2000 State Street Santa Barbara, CA T: F: Paul Roberts Bench and Bar Conference (2010) 1126 Santa Barbara Street Santa Barbara, CA T: F: William Duval, Jr. Law Day/Law Week 1114 State Street, Suite 240 Santa Barbara, CA T: F: Elizabeth Nolan Executive Director SBCBA Office 123 W. Padre Street, No. E Santa Barbara, CA T: F: Santa Barbara Lawyer A Publication of the Santa Barbara County Bar Association 2009 Santa Barbara County Bar Association EDITOR-IN-CHIEF Saji Dias Gunawardane ASSISTANT EDITORS John Derrick Winnie Cai SENIOR EDITOR Lol Sorensen EDITORIAL SUPPORT Adam Carralejo Jill Jackman Sadler MOTIONS EDITOR Justin Greene VERDICTS & DECISIONS EDITOR Lindsay G. Shinn CONTRIBUTING WRITERS Adam Carralejo Lynn E. Goebel Angelica Rodriguez Robert Sanger Sheila Snow COVER ART Michael Lyons CARTOONIST Michael Ferrone Submit all EDITORIAL matter to Saji Dias Gunawardane at with submission in the subject line. Submit all advertising to: SBCBA, 123 W. Padre Street, #E Santa Barbara, CA phone , fax Classifieds can be ed to: 4 Santa Barbara Lawyer

5 Santa Barbara Lawyer Official Publication of the Santa Barbara County Bar Association August 2009 Issue 443 Articles Editor s Message Jo h n De r r i c k, Asst. Ed i t o r 7 Family Law Clients 8 Representation of Criminal Defendants 10 Attorney-Client Collaboration: The Key to Success in Mediation 13 On Thin ICE 16 Santa Barbara College of Law: An Interview with the Dean 18 County Bar Barbeque a Blast! 23 SBCBA Bar Barbeque Round-Up! 28 Boo to Esquire 30 Verdicts & Decisions: A Word and An Invitation Departments 14 Motions 31 Verdicts & Decisions 37 Classifieds 38 Calendar On the Cover: Attorney Michael Lyons manages his clients expectations. ( Clients : Gabriela Ferreira and Devon Zahn. Photo: S. Gunawardane.) Several articles this month focus on the people without whom we wouldn t be able to practice clients. Bob Sanger writes about the representation of criminal defendants including, but not limited to, some aspects of representing high-profile clients. Lol Sorensen discusses the dynamics of attorney-client relations in mediation. And Sheila Snow tells a personal story of how and why she made some fundamental changes in her work that have made difficult clients challenging in a positive way. I get the sense that some lawyers think that appellate specialists such as myself work in ivory towers cut off from the more stressful aspects of client interaction. But as diverse as the subject matter of my appeals may be, I find that they usually have one thing in common: There is a client facing an issue hugely important to him or her at a personal level. And when I represent the party bringing the appeal, the client is typically confronting an immense disappointment from what took place in the lower court, often one with life-changing consequences. So the appellate practitioner is a counselor in every sense, combining personal empathy with providing a realistic legal assessment of what lies ahead. Dealing with criminal clients on appeal can present its own problems. Communication with incarcerated clients by telephone presents a variety of practical hurdles. Budget cuts mean that personal visits by Court-appointed appellate counsel are generally not favored. And , of course, is not an option. So most communications tend to be by old-fashioned snail mail. I ve also had civil clients whom I have represented successfully on appeal, but whom I have never met. I felt I ve got to know some of them quite well despite never meeting them. I really don t feel that I am in an ivory tower. Clients aside, there s a range of other interesting articles in this month s edition. These include an interview with the Dean of the Santa Barbara College of Law and a perspective on heavy-handed immigration enforcement activity in neighboring counties and elsewhere. There s also an article by myself on one of my pet peeves, the use of the title Esquire by American lawyers. Enjoy the issue. August

6 Finally, someone my clients can count on just like they count on me. Your relationship with your clients is all about trust. They trust your integrity and expert legal advice. And they value the personal and confidential relationship you share. It s very much the same at Montecito Bank & Trust. Like you, we believe in longstanding client relationships. In offering creative solutions for each person s unique needs. And especially in earning their trust with personal commitment and professional expertise. Whether it s designing an investment portfolio, managing multiple real estate properties or planning charitable gifts, you can count on our Wealth Management team to provide your clients with a level of service that meets not just their needs, but your standards. Wealth advisory services one of the many Paths to prosperity you ll find at Montecito Bank & Trust. What s your path? WEALTH MANAGEMENT Investment Management - Trust Services - Estate Administration Real Property Management - Philanthropic Services Call for more information Santa Barbara: 1106-E Coast Village Road, Montecito, CA Solvang: 591 Alamo Pintado Road, Solvang, CA Ventura/Westlake Village: 701 E. Santa Clara Street, Ventura, CA Member FDIC 6 Santa Barbara Lawyer

7 Client Relations Family Law Clients: A Practitioner's Perspective By Sheila O Brien Snow Difficult clients come with the turf in any family law practice mediation, collaborative law, litigationall revolve around client interaction. When family law clients approach a family law professional, they going through a painful personal experience and their needs, wants and emotions can be overwhelming. Each family law practitioner must discover individually how to effectively interact with their clients so that the clients issues do not negatively impact us personally. In my case, I was able to change my practice so that it better fit my strengths and interests, and this helped me better serve my clients. Now, I find that difficult clients are challenging in a positive not a negative way. I have practiced in the tempestuous family law arena since 1993 when I first hung out my Attorney/Mediator sole practitioner shingle. Although I envisioned my practice as centering on mediation, the reality of starting a practice in midst of that recession meant I had to focus on both mediation and litigation to survive in the competitive world of family law. Luckily, one area of practice did inform the other. I learned practical people skills mediating cases that helped my litigation practice, and the practical procedural and legal expertise gained in litigation increased my mediation effectiveness in complicated family cases. Yet for ten years, I was continually stressed because I was not doing what I was best at and most comfortable doing: mediation. I am a mediator, not a litigator. I am most confident and creative when I can look at all sides of a problem and help find a workable resolution instead of pushing one perspective. Although I enjoyed good relationships with my fellow practitioners and successfully settled most of my cases, I had what felt to me like a seemingly endless stream of custody disputes that kept me working long hours with little personal satisfaction. And the stress I was feeling made working with some difficult clients even more onerous. The intersection of two events, one personal and one professional, made me realize that I had to change my practice. My husband, Kevin, went in for a simple stress test and was transferred to the hospital for emergency testing. His diagnosis was pulmonary hypertension, a death sentence (pulmonary embolisms caused his heart to be under 6x normal pressure). His pulmonary doctor, the very kind and brilliant Robert Wright, told us that he could not understand why Kevin was even alive and that we should get our estate together immediately. Sheila O Brien Snow Dr. Wright then went into intense research mode on our behalf. He found that the UC San Diego research hospital had some success with an experimental highly risky surgery. After many tests we learned that Kevin fit the necessary patient profile. However the surgery could not be scheduled for several weeks. Those weeks were miserable and interminable. Most of my colleagues and my clients were understanding and considerate, but one case in particular served to make an excruciating time event worse. I was representing pro bono a mother in a custody case that should have settled. Unfortunately the wealthy paternal grandparents decided to hire a new attorney to represent their out-of-town son in an attempt overcome the Custody Evaluation and that attorney set the case for trial. Although my client did prevail at trial, I was forced to spend the last weekend before my husband s surgery at work preparing for the trial, and not with him. The pressure was almost unbearable and I realized that life really is too short to keep working at something I really disliked. My husband was Pulmonary Thrombo Endartarectomy (PTE) patient #1201. Kevin survived and is still thriving. My practice, too, managed to survive even though I bowed out of litigation. My income certainly diminished initially but so did my stress levels. Yet my interaction with clients has never been better and over the past several years my practice has actually flourished. I still have high conflict clients, but I am now better able to help them because I helped myself. Sheila O Brien Snow is a local family law attorney and mediator who also teaches two classes at SBCC s Adult Education: The Divorce Survival Guide and Death Marriage Taxes. August

8 Client Relations Representation of Criminal Defendants By Ro b e r t Sa n g e r I n considering the theme for this month s publication, the Editor-in-Chief asked that I discuss the representation of criminal defendants including, but not limited to, some aspects of representing high profile clients. Without discussing any particular client, I would like to generally address issues I have encountered in high profile cases. Additionally, the representation of the indigent by lawyers employed in public defender agencies is timely. With budget cuts and expanding case loads, such appointed lawyers face an ethical dilemma. The Court of Appeal considered this issue on April 27, 2009, as noted below. High Profile Cases High profile cases present particular challenges. A case may be high profile because the accused is famous or because the charges are sensational; or, a case might not make much impact in the general press, but is a cause célèbre within a particular group; or the client just has a lot of money. There are some recurrent themes. The following is derived from a large number of cases and experiences in addition to those of the author (so no one should be doing that Carly Simon thing): Lawyers and judges may tend to think larger than life: Decisions are not made in the same rational fashion that they are made in ordinary cases. Participants are distracted by other concerns what other people will think and the cases themselves become larger than life. There can be a certain amount of looking over the shoulder at members of the press or worrying about public opinion, rather than dealing with the legal and factual issues at hand. Of course, we have had the pleasure of trying cases in front of excellent judges who ran the courtroom as professionally as possible under difficult circumstances. Dream teams can be nightmares: High profile cases can attract lawyers who consider their place in the media to be as important as representing the client. In addition, one of the most consistent complaints of criminal defense lawyers is that lawyers try to insinuate themselves into the case who are often marginal members of the bar, underemployed and who lack the ethical boundaries that keep most lawyers focused on their own cases. This is not to disparage the many true colleagues who offer moral support or good ideas without any attempt to cash in or get in the spotlight. What is particularly disturbing is to be trying to save a client s life and have people running Robert Sanger around in the background advancing their personal agendas. Dream teams can also be dream teams: We have had those rewarding cases in which other true criminal defense lawyers are brought together and who work collegially in the client s best interests. We have two cases right now in Los Angeles, one in state court and the other in federal court, where East Coast colleagues are contributing to successful defenses with the utmost of courtesy and commitment to the well-being of the client. Where co-counsel has the desired synergistic effect, relationships between such counsel often turn into professional and personal friendships that last a lifetime. Family members, hangers-on and self appointed experts who interfere with the attorney-client relationship: These people are sometimes sincere, though overzealous, in their misguided attempts to help and other times are just ego-centric and destructive. They tend to challenge every decision or claim to have a friend who knows someone or to have the magic bullet. The lawyer s time is taken from the case to field naive questions or to explain why something is happening or to explain why the client has the right to a confidential relationship with her or his lawyer and that the lawyer cannot explain why the decisions made in are the client s best interest. The antidote to these problems is to keep your head down and think like a lawyer, not a media star. Request a gag order in high profile cases so that none of the participants can comment on the case while it is pending. Remember that you are representing the individual accused and no one else. It does not matter that the family has a lot of money or that the case will bring personal fame. Keep your eye on the prize the prize is the liberty interest of the accused. If anything media, relatives holding the purse 8 Santa Barbara Lawyer

9 Client Relations strings, people who are second guessing interferes with your representation, you either have to block them out or get off the case. The Indigent Accused s Right to Counsel Most people who are accused, rightly or wrongly, in the criminal courts are not rich and famous. Most, in fact, cannot afford to hire lawyers at all; they are represented by lawyers with the public defenders office or by appointed lawyers. These lawyers are dependent on the government for compensation which does not necessarily reflect the amount of work that might come their way. We are seeing budget cuts -- meaning a decrease in lawyers, support personnel and resources -- while caseloads increase. Public Defender managers around the State are trying to be good administrators and adjust in times of economic stress. However, they also realize that they have a constitutional duty to each and every client to provide adequate assistance of counsel under the Sixth Amendment. The public defenders in the courtroom tend to be dedicated to being more than just being adequate. They are committed to truly defending their clients with no less vigor and often with more experience and ability -- than the lawyers for the rich and famous. As a society, we claim to be interested in justice in the same way we are interested in having decent roads, police protection and public parks. We do not want to see innocent people convicted, jailed or executed nor do we want a system so careless that the innocent are prosecuted and the true perpetrators, particularly of violent crimes, go free simply because there was no one there able to point out that the police and courts have the wrong person. The answer is simple. We, as a society, have to pay for it. It is beyond the purview of this Column to discuss whether the mechanism is an increase in taxes, cuts in government waste or a combination thereof. But, as a matter of fairness and as a matter of constitutional law the indigent accused has to have a lawyer who has the time and resources to do an adequate job. The Court of Appeal for the First District in In re Edward S., 173 Cal.App.4th 387 (2009) addressed the issue of whether or not the failure of the county to provide adequate resources to the Public Defender s Office is just the way it is in tough economic times or whether it requires reversal and the appointment of counsel who has time to do it right. The case resulted in reversal. It is likely that the juvenile accused was innocent. The defender, unsuccessfully attempting to get resources from his office, simply did not have the time, the staffing, experts or financial backing to look into the defenses or defense evidence. It resulted in the finding of jurisdiction (guilt in adult terms). And, the old adage -- if you don t have time to do it right, when will you have time to do it over is painfully applicable in terms of the costs of the false conviction, the appeal, the housing of the young man in custody. Not to mention the human cost of treating the young man as a criminal required to register as a sex offender and to spend time at the Youth Authority. Conclusion The only remedy for lawyers in public defenders offices and for their managers is to draw the line just like any other lawyer. If you are too busy or do not have the resources to properly handle a case, you are ethically required to decline the case. Good lawyers do that all the time in private practice. They refer cases out. They do not take on a case and do a substandard job. We cannot expect lawyers in public defenders offices to do what none of us would do in private practice. And, understandably, the appellate courts are also going to hold all of us to that same standard. NOW IS THE TIME TO SCHEDULE YOUR PORTFOLIO REVIEW. When you stop to think about what s happened in the past year, it s easy to realize how quickly things can change. That s why you should schedule your portfolio review today. This is an ideal time to discuss how the market may have impacted your financial goals. Then we can help you decide if you should revise your investments. And even if you don t need to make changes, it s still important to evaluate your investment strategy and help ensure it s still on track with your goals. Call today to schedule your free portfolio review. Daniel J De Meyer Financial Advisor. 125 E De La Guerra St Ste 101 Santa Barbara, CA Member SIPC August

10 Client Relations Attorney-Client Collaboration: The Key to Success in Mediation By Lol Sorensen To succeed in mediation, attorneys and clients must work together as a team. This article discusses several of the ingredients of effective collaboration between attorneys and their clients. The Nature of the Game Effective collaboration can occur only if attorneys and clients understand the nature of mediation. If litigation is about waging war, then mediation is about forging peace. Strategies and tactics that may work well in one endeavor frequently do not work well in the other. When under attack, people react defensively and are less able to think clearly, creatively, and rationally. Attorneys must understand when and how to be conciliatory in mediation, to set a tone of collaboration rather than confrontation, and to reduce rather than increase tensions. Clients need to understand that a relentlessly aggressive approach may make settlement more difficult, if not impossible, to achieve. The Roles of Attorney and Client Mediation is not just a time for advocacy; it is also a time for sober reflection. What are the financial and emotional impacts of the case on the client? What are the probabilities of success and failure? What are the risks, costs, and benefits that will result from victory or defeat? All too often, attorneys fail to consider these important questions. In their zeal to impress the client, the mediator, or the other side, attorneys adopt a posture of blind advocacy or cheerleading for the client. The attorney s role is more than just being a loyal supporter of the client. The attorney must also be a counselor. Excessive cheerleading is always counterproductive in mediation and an abdication of the attorney s obligation to Mediation is not just a time for advocacy; it is also a time for sober reflection. What are the financial and emotional impacts of the case on the client? What are the probabilities of success and failure? What are the risks, costs, and benefits that will result from victory or defeat? All too often, attorneys fail to consider these important questions. counsel as well as defend the client. Unfortunately, many lawyers minimize the role of their clients in mediation. No matter how brilliant the lawyer, trials are won and lost by the testimony of the parties. A similar dynamic exists in mediation. A wellprepared client who can poignantly express the impact of an injury can Lol Sorensen make all the difference in mediation. Similarly, a client who is freed by the attorney to think creatively may devise the win-win solution that resolves the case. The Limited Opportunity for Settlement Both attorney and client need to understand that opportunities to settle a case are scarce. Generally, there is a brief window of opportunity to settle 10 Santa Barbara Lawyer early in the life of a case, before much money has been spent and litigation theories have been fully developed. As the case moves forward, litigation takes on a life of its own as the parties conduct discovery, hire experts, and refine their theories, each side sharpening its knives for battle. The next opportunity to settle frequently does not arise until just before trial, if ever. Thus, attorneys and clients need to understand that early mediation presents a unique and limited opportunity to abort the litigation process before it is too late. The Importance of Preparation Like any team endeavor, preparation for mediation is the key to success. All too often, attorneys spend little or no time preparing clients to participate in mediation. They figure that there is plenty of downtime during the mediation itself. They can orient their clients to the process as it unfolds. But attorneys spend hours and even days preparing clients to testify at trial. Why Continued on page 18

11 August

12 12 Santa Barbara Lawyer

13 On Thin ICE By Angelica Rodriguez On August 30, 2006, in Maywood, California at 5:15 a.m., Immigration Customs Enforcement (ICE) agents were staged at a local supermarket parking lot. In full tactical gear, these agents scoured lists of names and addresses of identified people before descending upon homes and apartment buildings in nearby neighborhoods where individuals identified as criminal aliens live. In Southern California, 1,200 people have been detained in recent immigration raids, with at least 600 already deported. These arrests were made in Orange, Riverside, San Bernardino, Ventura, Santa Barbara and San Luis Obispo counties. According to ICE, 90% of those detained were immigrants with criminal records. However, for some of the detained immigrants, their only crime was that they were subject to deportation orders. ICE describes the other 10% of the arrestees as incidentals, or immigrants who were not on the targeted ICE list but were netted during the raids. In Southern California, 1,200 people have been detained in recent immigration raids, with at least 600 already deported. These arrests were made in Orange, Riverside, San Bernardino, Ventura, Santa Barbara and San Luis Obispo counties. August Immigration Law Criticism of ICE The National Fugitive Operations Program was established in 2003 to assist in identifying undocumented immigrants who either had serious criminal records or had been ordered to leave the country. ICE Detention and Removal Operations is the enforcement agency for this nationwide program. Since its inception, ICE has fallen to harsh criticism. On or about the first week of February, the agency came under additional scrutiny from the Migration Policy Institute, a Washington D.C. think tank and monitoring group, that released a report in February 2009 criticizing ICE, including its management which happens to be the U.S. Immigration and Custom s Enforcement. Bassina Farbenblum, an attorney for the Center for Social Justice at Seton Hall Law School stated, Undocumented immigrants should be held to the law. However, this program is designed to arrest individuals who have outstanding deportation orders. So there s a dysfunction here between what Congress is funding and what s being conducted. (Diamants, Critics Cite Flaws in Six-Year-Old Program to Track Down Undocumented Immigrants, New Jersey Real Times [February 5, 2009]). Farbenblum noted that federal memorandums in 2006 showed that ICE allowed arrests of undocumented immigrants without criminal records to count toward higher arrest quotas for the fugitive program. Nationwide, 40 percent of those arrested were undocumented immigrants without criminal records, according to the Migration Policy Institute. These 2006 federal memos were brought to light following a Freedom of Information Act request by the Benjamin N. Cardozo School of Law and were published in the New York Times on February 4, They revealed that ICE had set a goal in 2004 that criminals should comprise 75% of its immigration arrests. However, in 2007, only fewer than 5% of those arrested in several New Jersey raids were criminal fugitives. Subsequently, a lawsuit was filed by the Center for Social Justice at Seton Hall Law School contending that ICE violated the constitutional rights of several legal immigrants during these New Jersey raids. Local Santa Barbara immigration law attorney Arnold Jaffe comments, Under the Bush Administration policy, they (ICE) weren t just getting criminal aliens. They were meeting quotas. As a result, people (illegal immigrants) are totally scared. Mr. Jaffe believes that the responsibility lies upon ICE to thoroughly research the status of an immigrant before an order of deportation is served. People with denied visas or who had lost immigration court cases used to fall through the cracks, but not anymore. Mr. Jaffe believes that in the legal arena of immigration law, many civil liberties issues will soon follow, and that the new Administration will look to reform many present immigration laws. Commitment to Enforcement On the other hand, the commitment to enforce these harsh laws from legislators and enforcement agencies has been firm. Congress allocated $218 million to the National Fugitive Operations Program in its 2008 fiscal year, up from Continued on page 18

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