September 2013.pdf - Santa Barbara County Bar Association

Donna LewisPresident789 N Ontare RdSanta Barbara, CA 93105T: 682-4090; F: 682-42901215donna@cox.netScott CampbellPresident ElectRogers, Sheffield & Campbell,LLP427 E. Carrillo StreetSanta Barbara, CA 93121-2257T: 963-9721; F: 966-3715scott@rogerssheffield.comMatthew ClarkeSecretaryChristman, Kelley & Clarke1334 Anacapa Street, Suite BSanta Barbara, CA 93101T: 884-9922; F: 866-611-9582matt@christmankelley.comNaomi DeweyChief Financial OfficerBuynak, Fauver, Archbald & Spray820 State Street 4th FloorSanta Barbara CA 93101T: 966-7422NDewey@BFASlaw.comCatherine SwysenPast PresidentSanger, Swysen & Dunkle125 E De La Guerra St Ste 102Santa Barbara, CA 93101T: 962-4887; F: 963-7311cswysen@sangerswysen.comEmily AllenLegal Aid Foundation301 E. Canon Perdido StreetSanta Barbara, CA 93101T: 892-2480emiallen@aol.comSanta Barbara County Bar Associationwww.sblaw.org2013 Officers and DirectorsMichael DenverHollister & BraceP O Box 630Santa Barbara, CA 93102T: 963-6711; F: 965-0329mpdenver@hbsb.comDanielle De SmethBamieh & Erickson692 E. Thompson BlvdVentura, CA 93001T: 643-5555danielle@bamieherickson.comKaty GrahamSenior Research Attorney2nd District Court of Appeal,Div. 6200 E Santa Clara StVentura, CA 93001T: 641-4753katy.graham@jud.ca.govJames GriffithLaw Offices of James P. Griffith1129 State St Ste 30Santa Barbara, CA 93101T: 308-0178; F: 563-9141jim@jamesgriffithlaw.comLauren JoyceAttorney at Law209 E Anapamu StSanta Barbara, CA 93101T: 705-8022lejesq@gmail.comBrandi RedmanAttorney & Counselor at Law1021 Laguna St. Apt 8Santa Barbara, CA 93101T: 252-8418;b.redman@cox.netMission StatementSanta Barbara County Bar AssociationAngela RoachSanta Barbara LawyerUniversity of California, SantaBarbaraEmployee & Labor Relations3101 SAASBSanta Barbara, CA 93106-3160T: 893-7302angela.roach@hr.ucsb.eduJames SweeneyAllen & Kimbell, LLP317 E. Carrillo StSanta Barbara, CA 93101-1488T: 963-8611; F: 962-1940jsweeney@aklaw.netShelley VailSanta Barbara LawyerUniversity of California, SantaBarbaraEmployee & Labor Relations3101 SAASBSanta Barbara, CA 93106-3160T: 893-4663shelley.vail@hr.ucsb.eduLAUREN WIDEMANPrice, Postel & Parma, LLP200 E. Carrillo St., Ste. 400Santa Barbara, CA 93101T: 962-0011lbw@ppplaw.comLida SiderisExecutive Director15 W. Carrillo Street, Ste. 106Santa Barbara, CA 93101T: 569-5511; F: 569-2888sblawdirector@gmail.comThe mission of the Santa Barbara County Bar Association is to preserve the integrity of thelegal profession and respect for the law, to advance the professional growth and educationof its members, to encourage civility and collegiality among its members, to promote equalaccess to justice and protect the independence of the legal profession and the judiciary.Santa Barbara LawyerA Publication of the Santa BarbaraCounty Bar Association©2013 Santa Barbara County Bar AssociationCONTRIBUTING WRITERSNaomi DeweyTeo ErnstJacqueline HallJoseph J. LockhartRobert SangerEDITORAngela D. RoachASSISTANT EDITORSLida SiderisShelley VailMOTIONS EDITORMichael PasternakVERDICTS & DECISIONSEDITORLindsay G. ShinnPROFILE EDITORJames P. GriffithPHOTO EDITORMike LyonsDESIGNBaushke Graphic ArtsPRINT PRODUCTIONWilson PrintingSubmit all EDITORIAL matter tosantabarbaralawyer@yahoo.comwith “submissIon” in the emailsubject line.Submit all MOTIONS matter toMichael Pasternak atpasterna@gmail.com.Submit all advertising toSBCBA, 15 W. Carrillo Street,Suite 106, Santa Barbara, CA 93101phone 569-5511, fax 569-2888Classifieds can be emailed to:sblawdirector@gmail.com4 Santa Barbara Lawyer

Legal NewsFeigning andMalingeringBy Joseph J. Lockhart, PhD, ABPP andTeo Ernst, PsyD, QMEMyth or Fact?Forensic mental health experts, by virtue of theirtraining and experience, are able to detect whethersomeone is honest or malingering by means of the clinical interview.Persons who misreport and exaggerate their symptoms doso because they are dishonest; if they exaggerate in one area, theywill lie or exaggerate in all areas.These statements are myths, not facts. We will discusshow professionals, whether in mental health or medicine,are almost never able to detect deception by interview orobservation alone. An exception to this limitation is whenthey are aided by sophisticated validity tests, structuredinterviews, and objective testing. At the same time, thereare many normal cognitive processes which influence howpeople remember their pre-injury functioning, and howthey attribute their current symptoms to their injury. Finally,we discuss some important limitations and caveats of allpsychological tests, including validity tests.Where does Feigning Occur in LegalProceedings?Malingering is defined by the DSM as “...the intentionalproduction of false or grossly exaggerated physical or psychologicalsymptoms, motivated by external incentives...” 1Feigning, on the other hand, is defined as the deliberate fabricationor gross exaggeration of psychological or physicalsymptoms without any assumptions about its goals.Given the fact that we cannot read one another’s minds,we can never be entirely certain as to why a particularclient either does more poorly on a test than expected, orexpresses more symptoms than seem warranted. For thesereasons, we prefer to use the term “feigning” to characterizefailure on symptom validity tests. Feigning does not implya particular motivation, external incentive, or deliberateintent to deceive.In civil proceedings, plaintiffs may feign the presenceof psychiatric disorders, such as depression and PTSD, inorder to achieve compensation, time off work, or legal vindicationif they believe they were wronged. Plaintiffs whoare alleging a head injury may feign cognitive or memorydeficits. In personal injury claims, plaintiffs with injuriesmay exaggerate physical pain.In criminal settings, defendants may feign mental healthsymptoms in order to appear incompetent to stand trial, orto appear insane at the time of their crime. In sentencingproceedings, defendants may feign mental health conditionswhich they hope will lessen the severity of their sentence.How Good are Experts at DetectingMalingering?Historically, mental health experts have attempted togauge an examinee’s honesty by means of the clinical interview.By relying on their clinical experience and knowledgeof psychiatric disorders, experts develop a “sense” of theexaminee’s honesty about their symptoms. Although someexperts 2 claim very high rates of detecting malingeringthrough the clinical interview, none have been shown to beaccurate above a chance level. Thus, experts who concludethat a plaintiff is feigning without a systematic assessmentare committing a “serious omission.”Research by Aldert Vrij 3 demonstrates that “experts” inlie detection (including law enforcement and mental healthprofessionals) rarely do better than untrained laypersons.They typically perform somewhat above chance in detectinglies, but often make the opposite mistake of failing todetect the truth. In fact, professionals often pay attentionto cues which are not associated with deception. 4How Big is the Problem?From the outset, it is important to estimate the scopeof the problem of feigning. If feigning is exceedingly rare,then even very good tests will be unable to catch a feigner,without also misidentifying honest responders (so-called“false positives”). On the other hand, assuming that everyplaintiff or defendant is dishonest deprives them of theremedies to which they are entitled. In a criminal context,it could even force an incompetent defendant into trial. 5A landmark study on the prevalence of symptom exaggerationwas conducted by the neuropsychologist WileyMittenberg 6 and his colleagues. Surveying a large numberof neuropsychologists throughout the country, Mittenbergfound estimates of symptom exaggeration as high as 30%in personal injury cases, 20% in criminal cases, to a lowof 8% for non-contested medical cases. In general, theseestimates have proven to be quite robust in subsequent6 Santa Barbara Lawyer

Legal Newsresearch, with the prevalence of feigning highest in civilcases, followed by high-stakes criminal cases, and lowestin those cases not involving compensation.However, these general estimates cannot answer theessential legal question as to whether a plaintiff or defendantis feigning in a particular case. What is needed aretools which the forensic psychologist can bring to theseevaluations to determine whether the defendant is honestlyreporting or exaggerating their symptoms. A potentiallyconfounding issue is the normal psychological processeswhich tend to distort memory and self-report in peoplewho have suffered a significant illness or injury. 7Normal Changes in Memory after InjuryExaminees frequently distort their self-report of currentsymptoms and pre-injury functioning for many reasons notassociated with feigning. In fact, it is normal for individualswho have experienced a significant injury or illness (e.g.,headaches, sports injury) to “idealize” their pre-injury functioning,and to attribute most of their current problems inliving to the injury. 8 These distortions are not intentional,and should not be confused with malingering.So, What Does Work?Feigned Cognitive Impairment - If clinical experienceand the clinical interview do not make mental health expertsbetter able to detect feigning, what does work? Fortunately,objective and legally defensible methods do exist to detectfeigning and symptom exaggeration. 9 The strategies usedin detecting feigned cognitive impairment range from thestraightforward to the highly complex. The three majordetection strategies include the “Floor effect,” the “performancecurve,” and “forced choice testing.” Examples of suchtests include the Test of Memory Malingering (TOMM) andWord Memory Test (WMT).Floor Effect - Tests that utilize the “floor effect” to detectfeigning depend on well-established cognitive researchshowing that certain tasks may seem difficult on theirface, but are in fact trivially easy. For example, people areamazingly good at visual recognition tests. Given only briefglimpses of dozens of drawings, they can accurately pickout images they have seen before. When an examinee scoresfar below the expected level on one of these tests, especiallywhen they perform below the level of patients with mildtraumatic brain injury (mTBI), there is valid concern theymay be exaggerating their memory impairments.Performance Curve - Another strategy in detectingcognitive feigning is termed the “Performance Curve.”Tests using this approach include a broad range of items,from the very easy to the extremely difficult. The so-called“curve” in performance occurs because nearly everyone getsthe easy items correct, but this probability declines as theitems increase in difficulty. Examinees who are attemptingto feign will presumably answer simple items incorrectly. Asthe item difficulty increases, the feigner will not know theanswer, and begins scoring at a chance level. By examiningthe test results, it is possible to determine mathematicallyhow closely the examinee’s responses fit the typical performancecurve.Forced-Choice Testing - A third, but powerful strategyis termed “forced-choice testing.” Examinees are “forced”to choose among four potential responses, so that evenrandom answers would be correct 25% of the time. If theexaminee scores significantly below chance, it providesevidence that they are deliberately choosing an incorrectanswer.Detecting Feigned Psychological SymptomsThere are empirically-based techniques to detect feignedpsychological symptoms, including psychosis, depression,and posttraumatic stress disorder. 10 These techniques arevery distinct from the unstructured clinical interview, in thatthe psychologist uses structured interviews and questionnaires,and is able to directly compare the examinee’s resultswith empirical norms. Examples of specific tests include theStructured Interview or Reported Symptoms (SIRS) and theMiller Forensic Assessment of Symptoms Test (M-FAST).Three major detection strategies used by these tests includeidentifying rare symptoms, rare symptom combinations,and unlikely symptom severity.Identifying Rare Symptoms: This strategy capitalizeson the fact that certain symptoms are rarely endorsed bypatients with valid mental illness. As an increasing numberof rare symptoms are endorsed, it becomes progressivelyless likely that the symptoms are part of a valid mentaldisorder.Rare Symptom Combinations: This strategy identifiessymptoms which rarely exist in combination in real patients,but may be reported by feigning individuals who donot know which psychological symptoms co-exist together.Unlikely Symptom Severity: In contrast to individualswith valid impairments, feigning individuals often endorse awide range of symptoms as “unbearable” or extreme. Thus,when examinees endorse large numbers of symptoms assevere, it suggests that they may be exaggerating, particularlyif the severity of symptoms does not correspond totheir everyday functioning.September 2013 7

Legal NewsCWL’s 25th AnnualSouthern CaliforniaJudicial ReceptionBy Naomi DeweyOn July 26, 2013, academics, lawyers, court administrators,and jurists from around the state flockedto Nipomo for California Women Lawyers’ 25 thAnnual Southern California Judicial Reception. The historicDana-Powers House played charming host for the Fridayevening gathering. CWL President Eliza Rodrigues presentedthe Joan Dempsey Klein Distinguished Jurist Awardto the Honorable Teresa Estrada-Mullaney, Judge of the SanLuis Obispo Superior Court (Retired).Tributes to Judge Estrada-Mullaney were given by Hon.Barry La Barbera, Presiding Judge of San Luis Obispo SuperiorCourt, Hon. Denise De Bellefeuille, Santa BarbaraSuperior Court, Dr. Laura Gomez, Esq., UCLA School ofLaw, and attorneys Mark Jacobson and Rod Cathcart fromthe Administrative Office of the Courts.Judge Teresa Estrada-Mullaney was selected by CaliforniaWomen Lawyers to receive the award based on a remarkableprofessional career that established her as a trailblazerCWL President Eliza Rodrigues presents Judge Estrada-Mullaney theJoan Dempsey Klein Distinguished Jurist Award.for women in the legal profession.As the daughter of immigrant parents, with Spanish as herfirst language, she overcame social and economic barriersto reach her academic and professional goals. A graduateof the UCLA School of Law, nominators commented thatshe was driven not by a desire for recognition, but for thepurpose of “making a difference.”Judge Estrada-Mullaney’s many firsts began in OrangeCounty where she was the first Latina Deputy District Attorney.She was the first female Deputy District Attorneyin San Luis Obispo County, and she distinguished herselfas the first woman to prosecute a murder case and the firstto use DNA evidence in trial in San Luis Obispo County.The first woman to be appointed to the San Luis ObispoMunicipal Court bench, in 1992, Judge Estrada-Mullaneywon a position on the Superior Court bench following acontested election in 1996. She was the second Hispanic inthe history of the San Luis Obispo Superior Court to serveas a judge, the first being Governor Romualdo Pacheco, whoserved from 1854 to 1859 and went on to become the 12thGovernor of California. In recognition of her service, JudgeEstrada Mullaney was named 2006 “Influential Person” inLatino Today.Judge Estrada-Mullaney retired on January 25, 2012 aftertwenty years as a Municipal and Superior Court Judge forSan Luis Obispo County. She continues to work aroundthe State in the Assigned Judges Program.The Joan Dempsey Klein Distinguished Jurist Awardwas first presented in 1994. At the time, it was the “DistinguishedJurist” Award and its first recipient was JoanDempsey Klein, a Justice on the Second District Court ofAppeal in California. Justice Klein is a champion of women’srights and a pioneer in the struggle to achieve equal opportunityfor women in the law. She was a founder andprovisional president of CWL and the first president of theNational Association of Women Judges, and she has spentconsiderable time giving support and positive reinforcementto women in the legal profession. She is well knownas an excellent judge who listens, encourages dialogue,and fosters consensus. She accomplished all of this whileraising five children.Candidates for the Joan Dempsey Klein DistinguishedJurist Award are evaluated for excellence as jurists and forlongstanding vigorous service and inspiration to the womenlawyers of California. Those eligible for consideration arefrom the southern portion of the State.The Joan Dempsey Klein Distinguished Jurist Award ispresented annually at CWL’s Southern California JudicialReception. To attend, please keep an eye on CWL Newsand Events and the CWL Calendar.10 Santa Barbara Lawyer

Legal NewsJudge Estrada-Mullaney watches on.Naomi Dewey, Brandi Redman, Danielle DeSmeth, Judge Teresa Estrada-Mullaney,Eliza Rodrigues, Natasha S. Chee, and Kelly Robbins attend the CWL 25th Annual SouthernCalifornia Judicial Reception on July 26, 2013.Lockhart/Ernst, continued from page 8injury, disability, or impairment become correspondinglyless certain, and based on subjective, rather than objectivedata. Such weaknesses will dramatically weaken theirclaim.Dr. Lockhart is a Board Certified forensic psychologist, a Fellow ofthe American Academy of Forensic Psychology.Dr. Ernst is a forensic psychologist, a Qualified Medical Evaluatorand an Assistant Clinical Professor at UCSF.References1 American Psychiatric Assoc. (2004). DSM-IV-TR. Washington:Author2 Resnick, P. J. (2007). My favorite tips for detecting malingeringand violence risk. The Psychiatric clinics of North America, 30(2),227–232.3 Vrij, A. (2008). Detecting Lies and Deceit: Pitfalls and Opportunities.Hoboken, NJ: John Wiley and Sons.4 Inbau, F., Reid, J., Buckley, J., and Jane, B. (2011). Criminal Investigationand Confessions. Jones and Bartlett Learning.5 Drope v. Missouri (1975). US Supreme Court, 420 U.S. 162; 95 S.Ct. 896; 43 L. Ed. 2d 103; 1975 U.S.6 Mittenberg, W., Patton, C., Canyock, E. M., et al. (2002). BaseRates of Malingering and Symptom Exeggeration. Journal ofClinical and Experimental Neuropsychology, 37–41.7 Gunstad, J., & Suhr, J. A. (2001). “Expectation as etiology” versus“the good old days”: postconcussion syndrome symptom reportingin athletes, headache sufferers, and depressed individuals.Journal of the International Neuropsychological Society: JINS,7(3), 323–333. Greve, K. W., Ord, J. S., Bianchini, K. J., & Curtis,K. L. (2009). Prevalence of malingering in patients with chronicpain referred for psychologic evaluation in a medico-legal context.Archives of Physical Medicine and Rehabilitation, 90(7),1117–1126.8 Barsky AJ. (2002). Forgetting, fabricating, and telescoping: Theinstability of the medical history. Archives of Internal Medicine,162(9), 981–984. doi:10.1001/archinte.162.9.9819 Rogers, R (2008). Clinical Assessment of malingering and deception.New York: The Guilford Press.10 Rogers, R., & Shuman, D. W. (2005). Fundamentals of ForensicPractice: Mental Health and Criminal Law.11 Bianchini, K. J., Etherton, J. L., Greve, K. W., Heinly, M. T., &Meyers, J. E. (2008). Classification accuracy of MMPI-2 validityscales in the detection of pain-related malingering: a knowngroupsstudy. Assessment, 15(4), 435–449.12 Iverson, G., King, R., Scott, J., & Adams, R. (2001). CognitiveComplaints in Litigating Patients with Head Injuries or ChronicPain. Journal of Forensic Neuropsychology. Volume 2, Issue 1.13 American Psychological Association. (2013). Specialty guidelinesfor forensic psychology. American Psychologist, 68(1), 7–19.doi:10.1037/a0029889September 2013 11

Criminal JusticeNew LegalChallenge toGuantanamoConfinementBy Robert SangerIn this month’s Criminal Justice column we will discussa new Petition for Writ of Habeas Corpus filed in thefederal court relating to the non-release of detaineesheld at Guantanamo Bay notwithstanding the order ofthe Administration for their release. As of this writing, thePresident of the United States has issued orders releasing atleast 40 detainees, including Ahmed Adnan Ajam who is thesubject of the new Petition. Ironically, under the NationalDefense Authorization Act for the Fiscal Years 2011-2013 1(“NDAA”), the President is restricted from releasing detaineesunder the NDAA which was enacted as a partisanrider to defense budget legislation. 2 Consequently, noneof the 40 or more detainees ordered released have actuallybeen released.The Petition raises constitutionally compelling objectionsto the certification process. These include the objection thatthe NDAA rider was a Bill of Attainder and was imposed inviolation of the prohibition against Ex Post Facto laws. Thenew claim made is that the NDAA violates the President’spowers as Commander-in-Chief, particularly as those powerswere construed to allow the last President in office todetain the individuals in the first place. We will look at thebackground of these proceedings and the constitutionalarguments being advanced.The Status of Detainees Ordered ReleasedThe detainees who have been ordered released have notbeen charged with any misconduct, in part, because thegovernment has decided that there is insufficient evidenceto charge them. Therefore, they remain in custody in perpetuitywithout formal charges and without the chance oftrial. This is a sentence of death in detention in the custodyof the United States Government. The 40 plus detaineeswho have been ordered released – most of them years ago– are nevertheless being held as prisoners with no hope.Readers of the Santa Barbara Lawyer Magazine may recallthat the Criminal Justice column of December 2011 reportedon the case of Latif v. Barack Obama 3 in which the Court ofAppeals for the District of Columbia used the “presumptionof government recordsregularity” to prevent Mr.Latif from being released,despite a federal districtcourt ruling in his favor,on the grounds that therecord included a government“intelligence report.”That “report” was the initialdetention report basedon hearsay. The CircuitCourt opinion recognizedthat the intelligence reportwas “prepared in stressfulRobert Sangerand chaotic conditions,filtered through interpreters,subject to transcription errors, and heavily redacted fornational security purposes.” Nevertheless, the Circuit Courtopinion gives the report a presumption of regularity. Thatdecision was appealed to the United States Supreme Court.About 10 months after the publication of that Criminal Justicearticle, Adnan Farhan Latif, the plaintiff who the CircuitCourt had condemned to permanent imprisonment withouttrial, died in custody at Guantanamo Bay on September 8,2012. He was the eighth such detainee to die in custodywithout charges and without the hope of trial. Mr. Latif’schallenge to being held based on the presumed “regularity”of his initial detention document died with him.The individual who is the subject of this article and thenew Petition, Ahmed Adnan Ajam, is still alive. He hasbeen a prisoner at Guantanamo since June 14, 2002 underdifficult conditions. Records released on Wikileaks includethe actual government weight chart for Mr. Ajam whichreflects that his weight has fluctuated wildly, dropping,in 2004, 115 pounds within what appears to be a two orthree month period. Records from the hunger strike of 2006are incomplete but show another significant drop in hisweight by November of 2006. 4 The records of the governmentrecording his condition in March of 2008 stated that,“Detainee is in fair health.” 5In Mr. Ajam’s favor, he is reported to be compliant withthe guards and was reassessed not to have been a memberof the Syrian Al-Qaida cell with which he was originallyassessed to be associated. It also appears that he studiedlaw at the Islamic Studies Institute in Kandahar. Most of thematerials relating to the investigation are still classified andmost of the information relating to Mr. Ajam’s detentionis phrased in general terms, such as, “it is assessed that.”As with other detainees, what can be seen is based on “assessments”that he might have met certain people or was12 Santa Barbara Lawyer

Criminal Justicein certain places that are in turn “assessed” to be involvedin activities that could be connected to Al-Qaida.Of course, none of this is to say that Mr. Ajam was notan enemy combatant. On the record we have available tous, we simply cannot tell. What is significant is that theAdministration determined that there was insufficientevidence to charge him or try him and that he should bereleased. Nevertheless, the government is still holding Mr.Ajam as a prisoner with no charges, no trial, and an orderfrom the President to release him.The Petition in AHMED ADNAN AJAM (ISN326), Petitioner v. BARACK OBAMA, et al.As of this writing, the petition for Writ of Habeas Corpusfiled in the United States District Court for the District ofColumbia is still partially sealed as are most of the underlyingdocuments. According to the docket, the District CourtJudge has issued an order requesting briefing on the legalissues raised in the habeas petition. Unfortunately, thatorder is also under seal.However, the Petitioner’s Motion for Leave to File RedactedVersion of Memorandum of Law on Public Policyis filed without seal. 6 The Motion states concisely theconstitutional grounds of the claims in the habeas petition:“The propositions of Petitioner’s current motion to amendare almost entirely public. They are that (a) the Executivehas imprisoned Petitioner for more than a decade; (b) theExecutive has never justified Petitioner’s detention otherthan as a claimed exercise of its authority to target Petitionerwith military force under Article II, Section 2 of theConstitution; (c) following a Congressional authorizationfor the use of military force, Article II, Section 2 of theConstitution gives the President sole authority to determinewhether and when to use, or desist from using military forceagainst otherwise-targetable persons within the scope ofthat authorization; (d) in the exercise of his Commanderin-Chieftargeting authority, the President determinedalmost four years ago that he would desist from targetingPetitioner with military force; (e) Congress unconstitutionallyintruded on the President’s determination by enactingprovisions of the National Defense Authorization Act forFiscal Years 20ll-2013, [citations omitted] (“NDAA”); (f)the NDAA’s certification requirements alternatively constitutean unconstitutional Bill of Attainder; and (g) thecircumstances of Petitioner’s case show that he has sufferedand continues to suffer a direct and immediate injury as aconsequence of Congress’s unconstitutional intrusion. Byamending his petition, Petitioner would seek a declarationthat the NDAA provisions are void and that the Presidentshould be declared free to proceed with desisting in theexercise of military force against Petitioner, including thetransfer of Petitioner abroad to facilitate the same, withoutany requirement of certifications being made to Congress.”Now, of course, the District Court for District of Columbiais the venue in which all of the Guantanamo cases arefiled. The Judges there are dealing with all aspects of thisunfortunate situation, including, claims of torture and, mostrecently, a series of cases on the hunger strike and whetherthe United States Government can force feed prisoners tokeep them alive. The Court has also heard every otherargument that teams’ dedicated lawyers have made fortheir clients. But, as far as we can tell from the unredactedmaterials and from other commentaries on the matter, thespecific argument that the NDAA is unconstitutional basedon the argument that the President cannot both have andbe deprived of the power to determine who is an enemycombatant is a new one. This is coupled with the claimthat the NDAA is a Bill of Attainder.Bill of Attainder and Ex Post Facto LawTaking the last argument first, logically there is no wayaround the claim that the NDAA is a Bill of Attainder. It isa fundamental concept of our Constitutional system thatthere is a separation of powers. The legislature makes lawswhich apply prospectively and the courts provide a forumfor a fair determination of whether or not a crime wascommitted, whether the accused committed it, and whatpunishment, if any, should be imposed. Article I Section 9 ofthe United States Constitution sets forth the structure andlimitations on the legislative branch and states categorically,“No Bill of Attainder or ex post facto Law shall be passed.”Article I Section 10 says, “No State shall enter into any Treaty,Alliance, or Confederation; grant Letters of Marque andReprisal; coin Money; emit Bills of Credit; make any Thingbut gold and silver Coin a Tender in Payment of Debts; passany Bill of Attainder, ex post facto Law, or Law impairing theObligation of Contracts, or grant any Title of Nobility.”(italics added.) 7A simple logical analysis, devoid of emotion (and the politicsof fear and hatred), 8 leads to the inescapable conclusionthat the NDAA is a bill of attainder and is an ex post factolaw. The NDAA was passed by the legislature. It has theeffect of creating a legislative determination that a specificclass of people will be imprisoned for life despite the factthey had previously been ordered released. It makes thislegislative determination after the fact. That is a bill of attainderand an ex post facto law. That is what the founderssought to prohibit.A toll has been taken on the Constitution historicallyby the influence of emotion and the politics of fear andSeptember 2013 13

Criminal JusticeWhite, Zuckerman, Warsavsky,Luna & Hunt, LLP offers muchmore than accounting expertise. Ourcreative ideas and new strategiesgive our clients a competitive edge.In family law, you need professionalswho can analyze financial situationsand provide unimpeachable analysisand expert testimony. With decadesof experience, we are highly qualifiedin all areas including:Business & Professional PracticeValuationsCash Flow Available for SupportHigh Earner Child Support SituationsLifestyle Expense AnalysisCommunity/Separate PropertyBalance SheetsTax Effects of Divorce & Tax PlanningAsset TracingReimbursement & MisappropriationAnalysesCall us today so you can focus onwhat’s important – your clients.Certified PublicACCOUNTANTSExpert WitnessesForensic AccountantsBusiness AppraisersMarital DissolutionLost Earnings & ProfitsWrongful TerminationFraud Investigationhatred. Today, the excuse for making and enforcing theseunconstitutional laws is the fear and hatred of Al-Qaida. Inthe 1950’s repressive and unconstitutional laws were madeand enforced based on the fear and hatred of Communists.For instance, starting with American Communications Associationv. Douds, 339 U.S. 382 (1950), the Court struggledin a series of opinions to find a way to avoid interferingwith the “fight against Communism” by circumventing theprohibition of bills of attainder and ex post facto laws withclever rationalizations.Both the Red Scare and the Al-Qaida Scare were alsoexacerbated by xenophobia encouraged by politicians andthe media. 9 In the fifties, the public was willing to suspenddisbelief and endorse unconstitutional legislation to “gettough on communists.” In retrospect, it seems almostnaïve and certainly oppressive. Yet, at the moment, it didnot. Today, we are in the midst of another scare and, onceagain, are behaving in a way that future generations willprobably find naïve and oppressive.Nevertheless, so far, even in the controversial cases ofthe 50’s and 60’s, the constitutional prohibition on bills ofattainder and ex post facto laws were still held to applywhere there is legislation imposing clear punishment (e.g.,life imprisonment), with no ability to escape the punishment(e.g., no equivalent to signing a loyalty oath), for pastconduct (e.g., not for joining a Board after refusing to takean oath), as to a class of people. The Court dealt with thisin United States v. Brown, 381 U.S. 437 (1965) in a contextsimilar to Douds holding that an oath under the Taft-Hartleyact constituted a bill of attainder. Since then, the Court hasbeen even more deferential particularly where it impingedon First Amendment rights to speech. And in cases like this,where there is direct imprisonment by legislative enactment,the court has never wavered. We will have a chanceto see if the current politics of fear and hatred will evokean even more tortured evasion of these constitutional rightsthan the courts were willing to entertain at the height ofMcCarthyism.To attend our Santa Barbara Family LawStudy Group, e-mail llasseube@wzwlw.com.There is no charge for the dinner or programand you will receive one hour of MCLE credit.Our two California locations include:Los Angeles818-981-4226Orange County949-219-9816E-mail: expert@wzwlh.comwww.wzwlh.comInterference with the President’s ConstitutionalPowersIn addition, the Petition for Writ of Habeas Corpus in theAjam case raises, through a series of claims, the fundamentalissue of Presidential power. It is ironic that the same politicianswho were claiming that President George W. Bushhad the power to determine who was an enemy combatantand detain that person without charges or trial werenow claiming that President Barack Obama did not havethe power to determine that they did not meet the criteriato remain detained over a decade later. In the words of14 Santa Barbara Lawyer

Criminal Justicethe Petition: “From the proposition that only the Presidentcan direct the use of military force against a specific targetwithin the broad scope of a congressional authorizationto use military force, it follows that only the President candetermine whether and when to desist from the use of thatforce against a specific target.”Once again, in the absence of emotions and the politicsof fear and hatred, the logic is unassailable. It is only thebrute force of the party in control of the legislature to promoteits own agenda – it is not logic or law – that couldlead to this result. The power to detain enemy combatantsthrough military force, to the extent it is constitutional tostart with, is an Executive Branch power. There is nothingin the Constitution that allows the legislature to decidewho to detain or when the President can determine theyshould no longer be detained. There is certainly nothing inthe Constitution that allows the legislature to start makingbills of attainder or making ex post fact laws. The “unitaryexecutive” excuse given by the Bush Administration fordetention (and even for torture) was a claim for ExecutiveBranch power, not Legislative power. The argument nowthat (as a rider to a defense appropriations bill) the legislaturecan limit the current President from releasing peoplethe last President detained seems unsupportable as a matterof logic, law, and fundamental fairness.ConclusionTime will tell how the courts handle this in the immediatefuture and how history will evaluate their conduct later. Ifthese issues get to the Supreme Court, will there be a fiveto four decision, essentially along political lines? Or willthere be a logical and legal application of the constitutionalprohibitions on bills of attainder and ex post facto laws?Will the courts, including the Supreme Court, honor theSeparation of Powers doctrine and prohibit the legislaturefrom usurping the role of both the Executive and the JudicialBranches? Will the courts succumb to the politics of themoment and be subjected to the disapprobation of history?Or will they take a principled approach and find the NDAArider provisions unconstitutional? We will see.Robert Sanger is a Certified Criminal Law Specialist and is in his40th year of practice as a criminal defense lawyer in Santa Barbara.He is a partner in the firm of Sanger Swysen & Dunkle. Mr.Sanger is the 2013 President of California Attorneys for CriminalJustice (CACJ), the statewide criminal defense lawyers’ organization.He is a Director of Death Penalty Focus and is a Member ofthe ABA Criminal Justice Sentencing Committee and the NACDLDeath Penalty Committee. Mr. Sanger is also a Member of theAmerican Association for the Advancement of Science (AAAS).Endnotes1 National Defense Authorization Act for Fiscal Years 20ll-2013,Pub. L. No. 111-383, $ 1033, 124 Stat.4137 ([an.7,2011); Pub. L.No. ll2-81, $ 1028, 125 Stat. 1298 (Dec. 31,2011), Pub. L. No. ll2-239, $ 1028, 126 Stat. 1632 (Jan. 2,2013)2 President Obama signed these bills into law. The President saidin “signing statements” that although the restrictions intruded onhis powers, he did not veto the measures because they containedvital spending authority for U.S. defense operations.3 Latif v. Obama, 10-5319, 2011 WL 5431524 (D.C. Cir. Oct. 14,2011).4 See the .pdf document at Wikileaks, http://wikimedia.org/wikipedia/commons/a/a3/ISN_326_--_Ahmed_Adnana_Muhammad_Ajam_--_Guantanamo_weights.jpg5 http://wikileaks.org/gitmo/prisoner/326.html6 Case 1:09-cv-00745-RCL, Document 1725, Filed 07/10/17 Most, if not all, states of the United States have a similar provisionin their state constitutions.8 There has been troubling litigation in this area, particularly wherehot political topics were involved. For instance, see American CommunicationsAssociation v. Douds, 339 U.S. 382 (1950) and UnitedStates v. Brown, 381 U.S. 437 (1965).9 In the fifties, Senator McCarthy’s hearings before the HouseUn-American Activities Committee were covered heavily by thepress and eventually network news. Today, we have InfotainmentNews and shock commentators. There are similarities and differencesbut there is no doubt that the media has had an effect onpublic fear and hatred in both situations.“The lawyer of the 21st Century must obtain a skill-set that is unique tomediation and other forms of dispute resolution, other than courtroom litigation.”American Bar AssociationMediation & Dispute ResolutionProfessional Certificate ProgramLearn how mediation can helpimprove working relationships, cutlegal costs, and increase productivity.FALL 2013 COURSES:• Bankruptcy and ForeclosureMediation• Cultural Perspectives of Conflict• Mediation Practicum• Mediation: Theory and PracticeUCSANTABARBARAEXTENSION 805.893.4200 • EXTENSION.UCSB.EDUSeptember 2013 15

Res Ipse LoquiturIt goes without saying that the key to success in any endeavor lies in the ability of theparties to help each other reach a common goal.When that goal is effective estate and succession planning, we offer a uniquecombination of skills to complement your services to your clients.Since 1985, we’ve provided life policy evaluation and updating – a critical componentin saving your client money today, while maximizing estate planning for the future.We are also known for our expertise in life insurance premium finance, life settlements,philanthropic and endowment strategies as well as wealth accumulation programsfor business owners.Please call us to see for yourself how our services can complement yours whilebenefiting your client’s overall estate planning.We are available to meet with you at your convenience.David M. JonesI N SURANCE SERVICES805-969-2367 • www.davidmjones.comSeptember 2013 17

Tom Hinshaw and Judge Thomas AnderleGary Blair’s Retirement PartyMrs. Huseman, Hon. Eugene Huseman (ret.), Hon. WilliamGordon (ret.), Carol Gordon and Jackie StevensGary Blair, Angela Braun, Monday Ayala and Connie GonzalezGlenn Robertson and Judge Frank OchoaJudge Colleen Sterne, Ann Anderson andBetty L. JeppesenHon. Bruce Dodds (ret.), Hon. William Gordon (ret.),Gary Blair and Darrel Parker18 Santa Barbara Lawyer

Glenn Robertson, Paula Waldman and Michael CartyMarilyn Metzner and Judge Tom AdamsSanta BarbaraSuperior CourtJudges thankGary Blair forhis serviceGary Blair then and nowThe crowd looks onSeptember 2013 19

Over 28 years assisting law offices locally andremotely with their IT needs.Training: Timeslips Time & Billing Abacus Law Microsoft Office WordPerfect IPad / IPhoneServices: Setup of new systems Network administration Malware elimination Monitoring / maintenance Problem resolutionAffiliations:Timeslips Certified ConsultantMicrosoft PartnerStorageCraft PartnerRackspace PartnerMozyPro Partner(805) 569-0034www.vbconsulting.comTo schedule a consultation, please call 805-879-751715 West Carrillo, Suite 300 • Santa Barbara, CA 93101info@elinorreiner.com • www.elinorreiner.comNamed a 2012 Southern California Superlawyer ® !www.santabarbaraappeals.com25hfox@foxappeals.com20 Santa Barbara Lawyer

Pro BonoChange is Coming:Requiring Pro BonoPrior to Admissionto the BarBy Jaqueline HallOn May 1, 2012, following a report by the NewYork State Bar Association on lawyers and legaleducation, Chief Judge Jonathan Lippman ofNew York announced that, beginning in 2013, prospectiveattorneys would be required to spend 50 hours performingpro bono work before admission to the New York Bar.When drafting the guidelines for this new admissions requirement,the Advisory Committee on New York State ProBono Bar Admission Requirements stated that by requiring50 hours of highly supervised pro bono work, the State ofNew York was not only improving access to justice, butwas helping prospective attorneys develop valuable skills.Not to be outdone by New York, shortly after Chief JudgeLippman’s announcement, the State Bar of California createda task force to investigate creating new requirementsfor admission to the Bar in California. In June, the StateBar of California Task Force on Admissions RegulationReform released its Phase I Final Report. The State Baris currently seeking public comment on the report. Theproposed reforms include a pre-admission competencytraining requirement, a post-admission MCLE requirementfor newly admitted attorneys, and a pre- or post-admissionpro bono requirement.One of the findings of the Task Force was that “effectiveand meaningful orientation to the legal profession for newlawyers involves more than simply teaching them suchday-to-day details as how to find the courthouse, how toformat pleadings properly… It also involves orientationin the values of professionalism and the identity of whatit means to have the privilege of holding a law license.” 1The Task Force felt that requiring new admittees to spendsome time either in law school or in the first year of practiceserving individuals who cannot afford an attorney wouldinculcate values of professionalism. For these reasons, theTask Force is recommending that new admittees be requiredto complete 50 hours of legal services in the pro bono andmodest means areas.The proposed change in California envisions allowingprospective or new attorneys to complete the 50 hoursby doing either traditionalpro bono work (workdone without expectationof payment) or so-called“low bono” work. Thereare many individuals whodo not qualify for pro bonolegal assistance, but whocannot afford traditionallypriced legal services. Modestmeans legal services,often referred to as “lowbono,” involve handlinglegal matters for such individualsat greatly reducedJacqueline Hallrates. Such services are vitallyimportant in the areas of family law, bankruptcy,unlawful detainer, and breach of contract. The Task Forcerecognized that pro bono work is a core value of our profession,but wants to go further to increase the number ofindividuals in the state who can access legal help. By allowinglow-bono work to count toward the new proposedadmission requirement, the Task Force hopes to introduceyoung lawyers to an area of private, for-pay law practicefocused on a middle-class segment of the population.With the inclusion of low-bono work, the proposed newadmission requirement involves the following:50 hours of legal services provided in the pro bono ormodest means/low bono areas;Completed prior to admission or within the first year oflicensure;Completed through a Bar-certified Pro Bono Programor Modest Means Program, or under the supervision of aBar-certified Mentor; andCertification by the Bar applicant or new admittee ofcompliance with the requirement.For those who choose to fulfill all or some of the requirementpost-admission, failure to provide satisfactorycertification would result in license suspension. 2Key to the success of this requirement will be adequatesupervision of the applicants or new admittees. Many applicantswill complete this requirement during law schoolthrough clinics, internships, and externships, but some willchoose to complete the requirement during their first yearof admission. For those who chose to complete the requirementafter admission, it is important that experienced attorneysare willing to mentor and supervise them. Withoutproper supervision, pro bono or modest means clients faceContinued on page 29September 2013 21

Legal UpdatesThis Month inSanta BarbaraLawyer History20 Years Ago: September 1993• The publication was known by its former name, TheQuibbler.• SBWL announced its 5 th Anniversary celebration whichtook place on September 23, 1993, and featured Court ofAppeal Justice Joan Dempsey Klein and then CWL PresidentAngela Bradstreet.• The publication included a compilation of “practiceguidelines” for each of the south coast civil departmentsprovided by the Bench & Bar Committee. Respondentsincluded Judges Ronald Stevens, Patrick McMahon, BruceDodds, and Thomas Adams.emcee, and KEYT-TV anchorwoman Debby Davison as thekeynote speaker.5 Years Ago: September 2008• The magazine bore its current name.• Legal Aid’s 2 nd Annual Heroes for Justice event was covered.Dean Erwin Chemerinsky was the keynote speaker,and the Honorees were the late Hon. Joseph L. Lodge,Hon. Rodney S. Melville, social worker Ken Williams, andattorney Linda Kropp.• Donna Lewis (current SBCBA President) provided apreview of the 2009 Bench & Bar Conference. Highlightswere the Judge’s forum which included Justice Steven Perrenand Judge Colleen Toy-White, an intellectual propertysession taught by Matthew Berger and Preston Marx, abankruptcy session taught by David Commons, and a realestate session taught by John Thyne.• Legal Aid Foundation announced its new President,Lynn E. Goebel.15 Years Ago: September 1998• The publication was known by its former name, TheQuibbler.• An article featuring Judge Dodds’ retirement party atthe zoo was featured on the front page.• Then SBCBA President, Jim Herman (now Judge), wrotean article discussing the affects of El Niño on the Bench andBar.• SBWL announced its 10 th Anniversary Celebration Dinnerwhich featured past president, Susan McCollum, as theSeptember 2008 Santa Barbara Lawyer cover depicts Legal Aid’sHeros for Justice Honorees and Presenters, from left to right, MarilynMetzner, Hon. Thomas P. Anderle, Sheila Lodge, Dean ErwinChemerinsky, Ken Williams, Linda Krop, Ellen Goldman, Hon.Rodney S. Melville, and Marilyn Gilbert. Background, LAF ExecutiveDirector Ellen Goodstein.22 Santa Barbara Lawyer

September 2013 23

Section NoticeSanta Barbara County Bar Association Estate Planning/Probate Law Section Presents:The Art of the Conversation – Presented By David SolieDate/Time:Place:Speaker:Tuesday, September 17, 2013, 12:00 to 1:30 pmSanta Barbara College of Law20 East Victoria Street (between State & Anacapa)Santa Barbara, CA 93101David SolieThe Art of the Conversation ‐ Details of Topic:Boomers are crossing the threshold into the 50‐65 age group at a rate of 12,000 a day ‐ a turning point for howthey will view their future years. Add into the mix a persistently turbulent economy and you have a complexdynamic that requires expert navigation and conversation skills. Advisors need to re‐evaluate theirunderstanding of this key demographic and the communication strategies they use to broach subjects thatcould, just by their discussion, draw lines in the sand.David Solie is an author, educator, speaker, and thought leader in communicating with seniors. His book How ToSay It To Seniors: Closing the Communication Gap with Our Elders is a landmark text that has been read andreread by legions of baby boomers searching for a better approach to working with their aging parents. It offersinsights and proven, practical communication strategies that help professionals and laypersons alike interactmore compassionately and effectively with seniors.David Solie is an authority on communication between generations, particularly with seniors. His keynotepresentations have won critical acclaim from audiences throughout North America. Based on his pioneeringresearch on the psychology of the second half of life, David will share a breakthrough perspective on the realchallenges and changes that boomers are facing as they head towards 65. He will provide practical strategies toenhance the dialogue with your boomer clients to help them successfully negotiate the transition into this laterstage of life.MCLE:Co‐Chairs:Lunch:Price:1 hour credit (pending approval)David Graff, Esq., Allen & Kimbell & Brooke Cleary, Esq., Ambrecht & AssociatesVariety of sandwiches, pasta, cookies and drinks catered by South Coast Deli$25.00 for SBCBA Members, $30.00 for Non‐MembersPlease RSVP for this event before Friday, September 6, 2013, by e‐mail to bbartosh@aklaw.net or by telephoneto Brandy Bartosh at (805) 963‐8611Checks should be made payable to the Santa Barbara County Bar Association. Checks should be mailed to Allen& Kimbell, Attn: Brandy Bartosh, 317 E. Carrillo Street, Santa Barbara, CA 93101.24 Santa Barbara Lawyer

Awards for access tojustice to EllenGoodstein, JudgeGeorge Eskin, and thefirm of BrownsteinHyatt Farber Schreck Introduction ofattorneys new to thelegal communityThe Santa Barbara County Bar Associationcordially invitesMembers of the Bench and Bar, Spouses and Gueststo join us for our2013Annual DinnerFeaturing: Local wines andcuisine with Greek flairWhen: Friday, 11-1-20135:30 pm Reception6:30 pm DinnerWhere:Greek Orthodox Center1205 San Antonio Creek RdSanta BarbaraPayments On or before Afterreceived 10-15-2013 10-15-2013Members $99 $110Nonmembers $105 $115Reservation FormNameCheck if Vegetarian__________________________________ Member or NonMbr Check if Vegetarian__________________________________ Member or NonMbrPrice$_________$_________Total Enclosed: $_________To reserve & pay via USPS, please complete this form and send with yourcheck payable to: SBCBA, 15 West Carrillo St., Suite 106, Santa Barbara, CA93101. For additional reservations, attach additional sheet. To reserve and payby credit card, or if you have questions, call SBCBA at (805) 569-5511. Feespaid are nonrefundable.September 2013 25

26 Santa Barbara Lawyer

The In-House Counsel & Corporate LawSection and The Intellectual Property/Technology Business Section of the SantaBarbara County Bar Association present:Information Governance andDownstream eDiscoveryHow can you get a handle on the data in your environmentbefore litigation arises or regulatory compliancetriggers occur? We will discuss best practices and provideconcrete examples for records retention, identifyinginformation owners and custodians, and data mapping.Join us to learn how records policies can reduce thevolume of discovered and collected data and the overallcosts and risks associated with eDiscovery.SpeakerShannon Smith, General Counsel and Director ofInformation Governance, GlobanetShannon Smith manages a portfolio of the company’seDiscovery and compliance offerings, including servicesto support the Clearwell eDiscovery platform.She also consults directly with corporate legal teamsto develop policies and processes to support informationgovernance programs. An experienced attorney,Ms. Smith brings an extensive knowledge of regulatorycompliance, litigation readiness, and records managementissues to her role. She is a Certified eDiscovery Specialistand holds both a J.D. and MBA from Loyola MarymountUniversity.Date and TimeTuesday, September 17, 12 noonLocationSanta Barbara College of Law, Room 2, 20 E. Victoria St.ReservationsReserve via email to Chris Kopitzke,Chair of Intellectual Property/Technology Business Section,by Thursday, September 12, ckopitzke@socalip.comCost and Payment$25.00 – includes lunchMail checks to arrive by Monday, September 16,payable to Betty Jeppesen, Chair of In-House Counsel &Corporate Law Section,800 Garden Street, Suite K, Santa Barbara, CA 93101MCLEOne hour credit applied forThe California Coast Chapter of theAmerican Board of Trial AdvocatesPresentsThe James Otis Lecture ProgramThe American Jury Trial:A European PerspectiveJoin a distinguished panel of European and American lawyersas they discuss the European Civil Trial System andhow it compares to the American Civil Jury model. Dothe reasons for the 7th Amendment’s right to a civil jurytrial still exist today?Panelists: Oskar Riedmeyer (Vice President, German BarAssociation), Dr. Gerhard Ries (Professor of Law, Universityof Munich), John H. Howard, Esq. (Past President, ABOTACalifornia Central Coast Chapter), Hon. Steven Z. Perren(Associate Justice, California Court of Appeal)Date and TimeSaturday, September 21, 2013, 12:00 pmProgram12:30 p.m. to 2:30 p.m.LocationSanta Barbara College of Law, 20 East Victoria Street,Santa Barbara, CAReservationsReserve via email to Eric Berg, Esq. by September 13,2013, eberg@bhfs.com.Cost and Payment$50.00 – includes lunchMail Checks by September 13, 2013, payable to ABOTAc/o Brad Ginder, Esq. Hollister & Brace, 1126 Santa BarbaraStreet, Santa Barbara, CA 93101MCLE2 hours creditDaniel J De MeyerFinancial AdvisorEdward Jones ranked “Highest inInvestor Satisfaction with Full ServiceBrokerage Firms, Two Years in a Row”Visit jdpower.com.125 E De La Guerra St Ste 101Santa Barbara, CA 93101805-564-0011www.edwardjones.com Member SIPCSeptember 2013 27

The Santa Barbara County Bar Foundation Presents:Id., Ibid., and all that Stuff:What You Always Wanted to Know AboutLegal Citation Basics,But Never Dared to Ask.Speaker:John Derrick,Specialist inAppellate LawWhen: 12:00 pm to 1:15 pm, Thursday,September 19 th , 2013Where: The Santa Barbara College of the LawOne MCLE Unit. Costs and payment: $30, please mail checks by Tuesday, Sept. 17, 2013 to Brandi Redman, 1021Laguna St. #8, Santa Barbara, CA 93101. Please call 805-252-8418 for more information.28 Santa Barbara Lawyer

Family Law Section of the Santa Barbara County Bar AssociationYour Clients, Your Firm, You: “Obama Care”There has been a great deal of discussion, some of it heated, about the Affordable Care Act, expressing a wide rangeof views and concerns. As 2014 approaches, we are about to move beyond speculation and into implementation, so itis time to separate fact from fiction. One thing is certain; the ACA will affect everyone in some way.COME LEARN HOW OBAMACARE WILL AFFECT YOU AND YOUR CLIENTS.Date and TimeNovember 7, 2013, 12:00-1:15LocationSB College of LawCost$30 SBCBA members; $40 non-members; One Hour of MCLE Credit; Lunch will be provided: assorted sandwiches,salads, brownies, drinks. Please note in your rsvp if you require a vegan/vegetarian/gluten-free lunch.SpeakerLocal attorney Claude Dorais is an insurance business, regulatory and risk management expert. He is a member ofthe Federation of Regulatory Counsel and former co-chair of the SBCBA’s Estate Planning Section. He has representedclients before the insurance regulatory authorities of all 50 States and the District of Columbia. Those clients includemany types of insurers and risk-spreading and risk-bearing organizations, including several of the health insurers andHMOs which expect to offer coverage under the new legislation.RSVPTo etague@dorais.com by October 31 st and mail checks (payable to SBCBA) to:Family Law Sectionc/o Dorais, McFarland, Grattan & Polinsky, Law Corp.25 East Anapamu Street, 2 nd FloorSanta Barbara, CA 93101ClassifiedsSelf-employed bookkeeper with legal experience and excellentreferences. Experienced in QuickBooks, TimeSlips,Excel, etc. Please call Jane Banick at telephone: 805-963-6994or cellphone: 805-452-6347SHARE ATTORNEY SUITE225 E. Carrillo St. #202Large office with shared common areareception and secretary areacopy machine and fax includedcovered parking space3 minutes to Courthouse(805) 963-4484 available nowPro Bono NewsHall, continued from page 21a serious risk of harm that must be avoided.I urge all attorneys to review the report and considerbecoming a Bar-certified Mentor for new admittees seekingto satisfy the pro bono/modest means requirementpost-admission. The State Bar is seeking public commenton the Task Force’s Report through September 5. A copyof the report and information on where to send commentscan be found at http://www.calbar.ca.gov/AboutUs/PublicComment/201307.aspx.The Task Force hopes that thenew requirements will be phased in gradually, with the probono/modest means requirement taking effect in 2016.Endnotes1 State Bar of California Task Force on Admissions RegulationReform: Phase I Final Report (June 24, 2013) [hereinafter TaskForce Report], page 10.2 Task Force Report, page 25.September 2013 29

Legal CommunityThe Santa Barbara Paralegal Association will hostits 4th Annual MCLE Conference (made possible withthe assistance of the Santa Barbara District Attorney’sOffice) at the Historic Santa Barbara CountyCourthouse on Saturday, September 21, 2013. If youhave questions or wish to register, please communicatewith this year’s MCLE Conference co-chairs, KimberlyMumford (kmumford@bhfs.com) and/or MondayAyala (monday.ayala@gmail.com).SPECIAL ANNOUNCEMENT2013 Santa Barbara County Bar AssociationAward RecipientsFrank Crandall AwardWill be presented toBrownstein Farber Hyatt SchreckFor facilitating pro bono services to community non-profitorganizations, based on services benefiting low-incomepersons, community project leadership, nature and qualityof work and hours per attorneys, percent of firm attorneysinvolved in pro bono work, and existence of a policy encouragingpro bono activity.John T. Rickard Judicial Service AwardWill be presented to Honorable George C. EskinFor outstanding contributions to the judiciary and the localcourt system.Richard Abbe Humanitarian AwardWill be presented to Ellen GoodsteinFor life, leadership and conduct that exemplify humanitarianprinciples.Join us at the SBCBA Annual Dinner for the presentationof these Awards. See page 25 for more information.Attorney Tom Minehan ofthe firm Minehan, McFaul& Fitch, LLP has just retiredfrom practice after anextensive and distinguishedcareer. Tom practiced in SantaBarbara beginning in the late1970’s as part of the SantaBarbara County office of thefirm Ives, Kirwan & Dibble.In 1997, Tom, along with JimMcFaul and Jerry McLinn,amicably parted ways fromIves, Kirwan & Dibble to found the firm Minehan, McFaul& McLinn, LLP (which later became Minehan, McFaul & Fitchwhen Jerry McLinn retired and Tom Fitch joined as a partner).Tom spent the remainder of his career at that firm.Tom was (and still is) well-liked and highly respected byall who have worked either alongside or across the courtroomfrom him and by all who know him in both professionaland personal settings. His expertise and thoughtful,fair, and sensible approach to the law and cases of all sizeswill be missed by all, not least of which the attorneys andstaff who remain at Minehan, McFaul & Fitch (whose ranksinclude the editor of this column).Tom is currently enjoying the start of his retirement byvisiting Ireland with his wife Janet (Tom is more “Irish” thanmany citizens of that nation—all four of his grandparents wereborn there). May that trip be the first step towards a fun andrewarding next phase of life’s journey!Interested in giving back to your community? The SantaBarbara County Bar Foundation seeks new board memberapplicants. Those interested can apply by October15, 2013. Contact Brandi Redman at (805) 252-8418 orb.redman@cox.net for more information.The Santa Barbara Barristers recently hosted an MCLEpresented by the Hon. Judge Thomas Adams of theSanta Barbara Superior Court on effective oral advocacyskills and tips. The Barristers would like to thank JudgeAdams, the Santa Barbara College of Law, and allwho attended for making this a successful, educational,and entertaining event and hope to see everyone at thenext MCLE.If you have news to report you are invited to “Make a Motion!”Send one to two paragraphs for consideration by the editorial deadlineto our Motions editor, Mike Pasternak at pasterna@gmail.com.30 Santa Barbara Lawyer

The Santa BarbaraCounty BarAssociation Presents:A Reception with theAppellate Justices ofDivision SixPlease join us on Wednesday, October 23, 20136:00 pm – 8:00pmAt the Canary Hotel – 31 West Carrillo Street, Santa Barbara1 MCLE CreditSBCBA Members: $49 (After October 1 st , $59)Non-Members: $59 (After October 1 st , $69)Students/Paralegals: $25~~Please mail completed form along with your check payable to:Santa Barbara County Bar Association15 West Carrillo Street, Santa Barbara, CA 93101Name(s) __________________________________________________________________________________________Phone Number______________________________________Amount Enclosed___________________________________September 2013 31

Calendar3 Santa Barbara Lawyer Submission Deadline17 SBCBA Estate Planning/Probate Law Section MCLELuncehon “Art of Conversation”17 SBCBA In-House Counsel & Corporate Law Sectionand Intellectual Property/Technology BusinessSection Section MCLE Luncehon “InformationGovernance and Downstream eDiscovery”17 Gideon’s Trumpet Screening, Legal Aid Foundation21 American Board of Trial Lawyers “James OtisLecture Program”21 SB Paralegal Association MCLE Conference26 SBCBA ADR Section MCLE Evening “MediatingInsurance Cases”Lawyer ReferralService805.569.9400Santa Barbara County’s ONLY State Bar CertifiedLawyer Referral Service • A Public Service of theSanta Barbara County Bar AssociationSeptember 20131 2 3 4 5 6 78 9 10 11 12 13 1415 16 17 18 19 20 2122 23 24 25 26 27 2829 30ATTORNEYS: STRENGTHEN YOURTEAM WITH PARALEGAL TRAINING.Fall 2013 coursesCase ManagementCriminal LawEthics for the ParalegalFundamentals of Paralegal StudiesTort Law for ParalegalsUCSANTABARBARAEXTENSIONPARALEGAL PROFESSIONALCERTIFICATE PROGRAMClasses begin Sept. 23.For questions regardingthe program, contactparalegal@els.ucsb.edu,893-7440.To enroll call 893-4200 orvisit extension.ucsb.edu2013 SBCBA SECTION HEADSAlternative Dispute ResolutionDavid C. Peterson 441-5884davidcpeterson@charter.netBench & Bar RelationsJames Griffith 308-0178jim@jamesgriffithlaw.comCivil LitigationNaomi Dewey 966-7422ndewey@BFASlaw.comClient RelationsThomas Hinshaw 729-2526tmhinshaw@cox.netScott Campbell 963-9721scott@rogerssheffield.comSaji Gunawardane 845-4000saji@CALitigator.comCriminal LawCatherine Swysen 962-4887cswysen@sangerswysen.comBrian Cota 568-2424bcota@co.santa-barbara-ca.usDebtor/CreditorRobert Hurlbett 963-9111bob@hf-bklaw.comReed Olmstead 963-9111reed@hf-bklaw.comElder LawDenise Platt 682-8271deniseplatt@cox.netRuss Balisok (818) 550-7890russ@balisok.comEmployment LawKimberly Cole 845-4581kim@kimberlycolelaw.comEstate Planning/ProbateBrooke Cleary 965-1329cleary@taxlawsb.comDavid Graff 963-8611dgraff@aklaw.netFamily LawMaureen Grattan 965-2288mgrattan@dorais.comIn-House Counsel & Corporate LawBetty L. Jeppesen 963 -8621jeppesenlaw@gmail.comIntellectual Property/Tech. BusinessChristine L. Kopitzke 845-3434ckopitzke@socalip.comReal Property/Land UseJoshua P. Rabinowitz 963-0755jrabinowitz@fmam.comBret Stone 898-9700bstone@paladinlaw.comTaxationPeter Muzinich 963-9721pmuzinich@rogerssheffield.com34 Santa Barbara Lawyer

Victoria Lindenauer, Esq.MEDIATORTrained Mediator:Straus InstitutePepperdine Univ.StreamlinedApproachResultsCost EffectiveOver 25 years PI litigationon the Central CoastMediation Panelist:Santa Barbara, VenturaSan Luis Obispo,Resolute Systems, LLC805.730.1959 | www.lindenauermediation.comlindenauer_mediation@cox.net • • • • • • • • • • • • • • • • Robert J. Rodino, Ph.D.Real Estate Expert WitnessResearch & TestimonyAll Major Property TypesAcquisitions & Dispositions, DevelopmentProperty Mgmt, Investment Analysis, BrokerageAffiliate Member Santa Barbara Bar Associationbobrodino@aol.com 310-459-9474www.RodinoAssociates.com 310-614-2193ConnectingATTORNEYS • PARALEGALS • LEGAL STAFFconfidentialemploymentplacementx79 E. Daily DriveSuite #249Camarillo, CA 93010Ventura County 805 389-3663Santa Barbara 805 965-2020Cell 805 443-8422Fax 805 512-8118www.whalenbryan.comKathi A. Whalen ~ PresidentSeptember 2013 35

Santa Barbara LawyerThe Santa Barbara County Bar Association15 W. Carrillo St., Suite 106Santa Barbara, CA 93101Prsrt StdU.S. Postage PaidSanta Barbara, CAPermit #734Change Service RequestedGary GoldbergReal Estate Broker • Licensed AttorneyUC Hastings College of Law • Order of the CoifDRE License # 01172139For your Real Estate needs, choosecarefully and choose experience!“I’ve been a Lawyer for 22 years and a Real Estate Broker withmy own company for over 19 years.”“As a real estate company owner beginning my 20th year of serving Santa Barbara, I lookforward to helping you buy or sell real estate property, and as always, personally dedicatingmyself to striving for excellence in every transaction. My expertise and detailed knowledge ofproperties includes Montecito, Hope Ranch, Carpinteria, Summerland, Goleta, Santa Barbara,and all the surrounding beach communities.”Over $500,000,000Sold Since January 1, 2000 Among the top 10 agents in Santa Barbara(per MLS Statistics in Gross Sales Volume)• Intensive Marketing Plan foreach listing• Member, Santa Barbara, Ventura,and Santa Ynez Real EstateBoards• Expert witness in Real Estateand Divorce Matters, and EstatePlanning• Licensed Attorney, ProfessorReal Estate Laws Course atSBCC1086 Coast Village Road, Santa Barbara, California 93108 • Office 805 969-1258 • Cell 805 455-8910To view my listings visit www.garygoldberg.net • Email gary@coastalrealty.com36 Santa Barbara Lawyer