Building a Successful Law Firm—Without an Office

Rent is one of the largest expenses for law firms, sometimes taking up as much as 10 percent of their gross revenue. Too, it’s not uncommon for workers in large cities to have hour-plus commutes to their offices. The majority of today’s clients are more interested in efficiency and reasonable prices than how glamorous their lawyer’s office is. As a result, firms are choosing another way to work: virtual offices.

Marcia Watson Wasserman, Founder and President of Comprehensive Management Solutions, Inc., serves as a consulting COO for boutique and mid-sized law firms, helping numerous lawyers develop and sustain virtual offices. She joined the Law Firm Marketing Catalyst podcast to share her expertise and advice for lawyers considering moving toward virtual work.

Know who you’re working with

With a virtual office, you can’t pop into a colleague’s office or bump into them in the hallway. You won’t see what they’re doing on a daily basis, so you need to trust that they share the same goals, work ethic and commitment to firm culture as you. Marcia finds that people who have worked together at a brick-and-mortar firm before going virtual tend to work best, because an in-person relationship and sense of trust is already established. If you’re going virtual, find colleagues you already know personally, or at the very least, spend plenty of in-person time with them before committing to anything.

Understand your tech tools

 It’s impossible to have a virtual firm without the help of cloud-based technology tools. To have a successful virtual firm, everyone must be an expert on those tools. Law firms are notorious for buying software, then failing to learn how to use it—that won’t fly with a virtual firm. You need remote systems and procedures that streamline your practice and benefit your clients, and everyone must be comfortable using them. At a minimum, you’ll have to invest both money and training time in document management software, video conferencing software, client portals for paying bills, collaboration tools and, of course, encryption and data security tools.

Cultivate communication

How to delegate work, how to offer feedback, how to manage work among teams, when and how to have meetings—these questions are equally important at virtual or brick-and-mortar firms. But at virtual firms, it becomes even more critical that you discuss them openly and have communications systems in place. When communication is only happening by email, it can easily break down. Video conferencing, phone calls and planned communication are the antidote to this problem. Virtual connection also needs to be backed up with in-person events like retreats and social gatherings, at least annually. Maintaining communication at a virtual firm isn’t just important for client work, it’s also crucial to maintain firm culture.

Working from home sounds great, but it’s not for everyone. Some people get lonely working remotely. Others get distracted or they lack the motivation to work if they’re not in an office. Just like lawyers, support staff must have the right personality and skillset to work virtually. Another element to consider with support staff is wage and hour law in your location. Most support staff are non-exempt, and you have to consider supervision, insurance and the myriad of issues that arise when you have staff working remotely. Management issues don’t go away when support staff is out of sight.

Take advantage of time to network

Virtual work doesn’t mean staying home staring at your computer all day. The majority of work might be done from your home office, but networking can still happen in person. Join organizations, go to meetings and attend events to stay connected to your profession and your colleagues. Virtual work also offers more flexibility to meet with clients and attend events important to their industry. You’ll get to know your clients at a deeper level, which they’ll appreciate, and it will get you out of your work-from-home routine—a win for everyone.

If you can’t go fully virtual, start small

Not every firm is suited to virtual work, but many firms can use some of its elements to their advantage. Especially in large cities, more firms are using co-working spaces or opening small satellite offices that are more convenient for lawyers to get to. With more attorneys working outside of the main office a few days a week, the next logical step for some firms is to encourage office sharing. It’s a huge cultural shift for partners to share an office, but it can offer tremendous space and cost savings, and this concept typically doesn’t faze young associates.


© 2020 Berbay Marketing & Public Relations

For more on running a law firm, see the National Law Review Law Office Management section.

How Marketers Can Better Support Inclusion for Women Lawyers of Color — Today

A new in-depth report from the American Bar Association, Left Out and Left Behind: The Hurdles, Hassles and Heartaches of Achieving Long-Term Legal Careers for Women of Color, draws on data and interviews to tell the story of what life is like for women lawyers of color. The report, authored by social scientist Destiny Peery, past ABA president Paulette Brown and Chicago attorney Eileen Letts, demonstrates why, despite increased efforts by firms and the profession generally, to improve diversity and inclusion, women of color continue to face barriers to advancement and are much more likely than white women counterparts to leave the profession.

This report is essential reading for any law leader who is serious about making true substantive changes that will improve the retention and advancement of women of color — particularly those leaders whose firms are posting “Black Lives Matter” messages in internal communications and on social media channels. Becoming an antiracist law firm does not end with a slogan or “messaging” — it requires an honest examination of formal and informal policies and practices, and a reckoning with the impact of those policies on lawyers of color. Then it’s time to reimagine how your firm runs to make sure opportunities are fairly distributed.

While it’s very important to hear and sit with the stories individual lawyers share from their experience of implicit and explicit bias, if I know my audience of driven, task-oriented marketers and communicators, you will be skipping to the end, where the report recommends next steps for firms that want to take action. Below I outline those general recommendations, and then consider the role of the marketing department in helping to make them a reality.

Adopt Best Practices for Reducing Biases in Decision-Making. “[P]revious research that has shown that high levels of subjectivity in promotion standards, selection for assignments, compensation decisions, and performance appraisals are often colored by stereotypes and serve as institutional and structural barriers to the advancement of women of color and other underrepresented attorneys.”

What Marketers Can Do: How does your department determine which partners receive marketing and communications support as they work to build their business? Is there a way to distribute those resources — help with individual lawyers’ social media channels, assistance writing and placing thought leadership, nominations for awards and key boards of directors — more fairly to elevate your firm’s diverse attorneys? How can you help advise up-and-coming partners on which opportunities will be the best use of their limited time and make the biggest impact on their business development?

Improve Access to Effective, Engaged Mentors and Sponsors. “[W]omen of color are especially likely to report that they lack access to mentors or sponsors who are well-connected and have power and influence to both clue them into important dynamics of the workplace and effectively advocate for them.”

What Marketers Can Do: Marketers have a great opportunity to help create mentorship and sponsorship relationships through the business development and proposal-writing process. By now, most rainmakers and practice leaders understand that business clients demand to be served by diverse teams. So they’re being thoughtful about including diverse attorneys in pitch decks and other materials. You can help move that inclusion to the next level by adding a follow-up communication step to your BD process in which all named/pictured team members de-brief and offer feedback. This is a simple way to build a platform upon which younger and diverse attorneys can demonstrate their value in front of the senior partners who can shape their career opportunities. In addition, you can use channels like the internal firm newsletter to educate more senior partners on how to effectively advocate for diverse attorneys — and, in doing so, help the firm stand out as a leader on an issue that matters very much to clients.

Take an Intersectional Approach to Addressing Diversity and Gender. “[B]lindness to or ignorance of the ways that gender and race (as well as other social identities) can interact to create distinct experiences” has so far limited what firms have been able to achieve. Firms must acknowledge that, while they are still disadvantaged, white women’s careers develop differently because of their access to privilege. They navigate networking differently, are viewed differently by colleagues, clients, and judges, and receive distinct treatment when it comes to work distribution and performance evaluation.

What Marketers Can Do: Take a look at how you use words like “diversity,” “equity,” and “inclusion” in internal and external firm communications. Do you grapple with intersectionality — that is, the way that experiences of race and gender (and class and sexuality and ability) intersect for your attorneys — in your messaging? Are there ways that your “diversity” initiatives and communications erase the experience of women who are not white? How could you make changes to address this issue?

 “[O]ur participants mentioned again and again the myriad ways that the culture of the legal profession interfered with their abilities to succeed, to feel valued, and sometimes to persist in the legal profession.”

What Marketers Can Do. So much! 1) Take a look at your firm’s (pre-Covid, in-person) events. Where are they typically held? Do you always choose locations and activities that are most comfortable for wealthy white men? How might you change things up? 2) Does your firm have a written editorial style guide? If so, does it include a section on inclusive language so that everyone knows how to use language in the most inclusive ways possible? 3) If your intended audience for your internal firm communications is “everyone,” are you sure your language and framing actually accomplish that goal, or are you unintentionally treating a white reader as the default? 4) What other unexamined policies, practices, habits and conventions may implicitly communicate to diverse partners that they don’t fully belong? Learning how to spot potential for “othering” and exclusion in communications and other marketing activities is an important skill your department needs to teach its junior members and encourage them to practice.

True change that makes law firms into more equitable and inclusive workplaces for all lawyers must happen on both the systemic and individual levels. While many of the most sweeping and necessary changes are out of the hands of junior and senior legal marketers, there are plenty of things we can do within the scope of our influence that will make a difference. And the time to start is now.

© 2020 Page2 Communications. All rights reserved.

ARTICLE BY Debra Pickett at Page 2 Communications.

For more on diversity in law firms, see the National Law Review Law Office Management section.

13 Signs It Is Time to Hire an Outside Marketing Professional

Marketing is the backbone of your law firm’s growth. Think of it this way: a bad attorney can still drum up a substantial amount of business with an impressive marketing plan, but an excellent attorney’s skills will not save them from a weak or nonexistent marketing plan. If you are wondering if you have outgrown your current marketing plan, look for these signs that you need an outside professional.

1. Marketing Takes Up More Than 15 Minutes of Your Billable Time

As an attorney, you should spend most of your time doing what you do best. If you spend more than 15 minutes per day writing and scheduling tweets, checking marketing metrics, or optimizing your blog posts, you are wasting time that should be spent researching, meeting with clients, or preparing for court. Outsource these tasks to a professional.

2. Your Returns Have Plateaued

Seeing big returns on your law firm’s marketing efforts is exciting, which is why plateaus are so disappointing. Without in-depth marketing education and experience, you are unlikely to know what it takes to overcome those plateaus. And while there is a wealth of online information on how to do it yourself, it is a better use of your time and skill to involve a professional consultant that can highlight new ways to bring in potential clients.

3. You Want to Take Your Marketing to the Next Level

No matter how brilliant and creative you are when it comes to selling yourself and your practice, you would be amazed at the opportunities and ideas that a professional can bring to the table. Whether it is identifying a potential sub-market that could grow your law firm, or developing new branding ideas that speak to a different demographic than your typical client, an outside marketing consultant can enhance your current strategy and increase your return on investment.

4. A Big Change or Event is Approaching

An important event or big change in your firm is a massive marketing opportunity, but can also be a massive source of stress. With so many small details to consider, as well as pressure for the event to be successful, a holistic marketing company can provide you with wrap-around support for your event. Not only can they show you the best ways to market your event, but may also offer event planning services, subcontractor management, and even discounted purchasing on your behalf.

5. Your In-House Team Has Become Complacent

In-house marketing teams can work as well-oiled machines, properly allocating their efforts across different team members and projects. In some cases, though, they become complacent and stop giving your firm the time and effort necessary to bring in new clients. Instead of trying to motivate a team that has lost passion for seeing your law firm succeed, consider adding an outside marketing eye to your mix. Often legal marketing consultants offer hourly consultation rates that are perfect for when you simply want a fresh perspective and a new direction without a long-term commitment.

6. You Are Striking Out on Your Own

Starting your own law firm is a significant accomplishment. Avoid the trap of saving money by engaging in DIY marketing. Although it may seem like a good way to cut costs at the outset, shoddy marketing and tone-deaf messaging can actually do far more financial damage than the amount you might save. From logo design and business cards to innovative pay-per-click campaigns and social media marketing, it is better to start out on the right foot with a solid marketing team or consultant that can give you a solid foundation for the future.

7. Circumstances Call for Rebranding

No one is perfect, and every law firm has had its fair share of blunders. However, when a huge mistake smears your name and causes any Google search of your firm to reflect poorly on your brand, it is time to call in a professional legal marketer. They can help mitigate reviews, consult on best next steps, and develop a re-branding strategy that can save your business before negative press starts affecting your bottom line.

8. You Do Not Have Time to Pursue Further Credentialing

In the legal world, reputation is key to success. For many lawyers, this means participation in cause marketing, leadership in relevant associations, and pursuing awards and credentialing opportunities. Unfortunately, not every lawyer has the time, means, or energy to research these opportunities and develop them. A good outside marketing consultant will be able to review your experience and professional strengths and use them to find appropriate places for you to speak, guest author, and submit yourself for public recognition for the good that you do.

9. You Want Help Understanding Your Marketing Analytics

Whether you work with an in-house marketing team or do your own law firm marketing, detailed analysis is a vital part of knowing what is working with your marketing strategy. This can become very frustrating, especially if you are receiving or running reports that you do not understand. Instead of trying to give yourself a full marketing education, turn them over to a specialist. An outside legal marketing consultant can review your analytics with you, highlight the areas that are meeting expectations and give suggestions on how to improve those areas that are slow.

10. Blog Upkeep is Getting Away From You

Companies with blogs get, on average, 67% more leads than companies without blogs, according to Demand Metric. It is not enough to create a new post whenever your schedule allows; blogging has to be a scheduled and highly prioritized part of your marketing plan. If your updates are becoming more and more infrequent, a marketing specialist can create a content calendar and even help you hire a ghostwriter to ensure that the posts keep coming.

11. Your Presentation and Publication Schedule Is No Longer Manageable

If you are not on top of your presentation and publication schedule, a marketing specialist can help you organize, prepare for, and promote these important parts of your marketing strategy. Remember, every presentation you make and every publication you produce is a chance to reach new clients. It makes sense to hire someone who knows how to best identify new avenues for this kind of credentialing and can take the time to ensure that everything is in order so that you are set up for success with no stress on your part.

12. Client Prospects Are Drying Up

Every law firm has slower spells and busy times. Still, if you are noticing a downward trend, it is time to analyze whether it is a normal dip in activity or a problem with some element of your marketing plan. If you have already exhausted your current networking and marketing efforts but business is still not picking up, a marketing professional can give some much needed insight.

13. Your Online Properties Are Out-of-Date or Poorly Managed

Your image is everything. Attorney websites with broken links, attorney bios that have not been updated in years, and abandoned blogs can lead clients to think you are no longer practicing. Hire a marketing specialist to consolidate online properties and manage their upkeep.

Choosing the right marketing expert can breathe new life into your client prospects and take your success to the next level. With the right support, your law firm can be flexible and relevant, able to identify new opportunities that will keep your law firm growing into a legacy worth having.


© 2020 Denver Legal Marketing LLC

For more on marketing for law firms, see the National Law Review Law Office Management section.

How to Build a Legal Blog from the Ground Up

Blogging is one of the most straightforward ways to share your legal expertise, strengthen your reputation amongst peers and potential clients, and become a valuable resource to your community. Once you know basic SEO principles and have a writing schedule that you stick to, it can be fairly simple. You already have the expertise. Now, learn how to share it by creating an engaging, educational, and helpful legal blog.

Before All Else, Know Your Law Firm’s Target Market

Being an expert in your area of practice is one thing; effectively sharing that knowledge with your target market is another. One issue that legal professionals run into while blogging is failing to write to their audience. When writing to non-lawyers, avoid using legal language that lay people do not understand, cite sources in a way that does not interrupt the flow of your writing, and avoid an overly formal tone.

You already know who your target market is: your clients and potential referral sources. If your goal is to connect better with potential clients, write in a way that appeals to their needs and is easily readable. It is easy to write about complex, multifaceted issues in a technical and legally accurate manner, but it is an art form to write about those same topics in a way that a person with no legal background can digest.

If your target market is lawyers—as is the case when you rely primarily on other attorneys for referrals—feel free to write in a way that connects with other attorneys. Still, avoid jargon and make sure that your work is clear and concise, as unnecessary “filler” bogs down your writing and can lose readers.

Regardless of who you are marketing your blog to, make sure that your tone matches your branding as well as your intended audience. If you are not writing in a way that connects with your audience, the time you put into your blog will not pay off.

Top SEO Tips for Law Firm Blogs

Knowing just a handful of common SEO tricks and techniques is enough to get you started. As you expand your legal blog and spend more time using it as a marketing tool, you may wish to invest in marketing services that allow you to expand your reach. To begin, use these techniques in your writing:

Diversify Your Law Firm Blog Posts

This is a tough balance to strike. You want to be narrow enough that people know what type of topics to expect every time they visit your blog, but you also want to be diverse enough that people do not get bored. Mix up your content between evergreen topics and trending topics. Articles that are not contingent on timely topics bring in readers over years, while trending topics can bring big boosts of readers as they are relevant to current events. Both are necessary to maintain high traffic and get new eyes on your website.

In addition, consider diversifying blog post lengths. Data from HubSpot indicates that long-form posts perform best, with the target range being around 2,000 words. Still, if 200, 500, or 1000 words will suffice, padding it out to 2,000 words is a waste of your readers’ time. What this does mean is that you should spend considerable time crafting in-depth posts that answer questions and offer clear value to readers. The shorter posts can also be helpful when the point is clear and they are meant to be quickly read through.

Make Law Firm Blog Posts Engaging and Attractive

No one clicks on a blog post and wants to be hit with a wall of text. There are many ways you can make your posts easy to digest, attractive, and welcoming. Make use of subheadings and bold text within your posts, which not only break up your information, but signal important key topics to search robots. White space through paragraph breaks is a great way to increase readability of longer posts.

In addition, posts with relevant images get 94% more views than those without images. To avoid copyright issues, use royalty-free image sources like:

You can also create or commission infographics that sum up the main points of your post into an easy-to-share format.

The Power of Consistent Action

When you commit to blogging, commit fully with a realistic schedule. When lawyers begin blogs, they often plan on posting whenever their schedule allows. Unfortunately, this often translates into occasional posts or an empty blog. A blog that has not been updated for weeks or months tells potential clients that you may not be active, that you may be too busy for new clients, and that you may not even be in business anymore. By creating a consistent blog schedule, you can get into the habit of producing high-quality content and steadily increasing your readership each week.

Your legal blog could help you reach an entire new audience. From new professional connections to new clients, the benefits of a legal blog are endless.


© 2020 Denver Legal Marketing LLC\

For more on legal marketing, see the National Law Review Law Office Management section.

Legal Industry Highlights: Law Firm Hires, Awards, and COVID-19 Innovation in May 2020

While the world has been hunkered down at home, participating in Zoom calls and getting jobs done from kitchen tables and home offices across the country, the legal industry has continued to innovate, respond and move forward, even during these troubled times.

Read on for a sampling of legal industry changes from May 2020.

Hiring and Law Firm Moves

Last week, Perkins Coie announced that Jill Louis joined the Corporate & Securities practice as a partner in the Dallas office, in a move that further augments their capabilities in the Lone Star state. Randy Bridgeman, the co-chair of Perkins Coie’s Corporate & Securities practice praised Louis’s entrepreneurial spirit and her in house and leadership experience.  He says, “Jill’s background in M&A and representing private equity-backed healthcare, infrastructure, and technology companies will be highly valuable to our clients across Texas and beyond.”

Jill Louis Corporate Lawyer
Jill B. Louis Perkins Coie

Louis has experience working with public and private companies in mergers and acquisitions, franchise transactions, corporate governance matters and working in industries including retail, technology and healthcare.  She has worked with large and small companies, from startups to Fortune 50 corporations, and has worked both in house and in private practice during her career. Dean Harvey, the Dallas office managing partner, says, “Jill’s arrival aligns with our ongoing strategy of expanding our corporate offering in Dallas to support our growing technology and privacy capabilities.”

Up in the northeast, Pierce Atwood added bankruptcy and creditors’ rights attorney Alex F. Mattera to the firm’s Boston office. Mattera focuses his practice on creditor and debtor rights, commercial bankruptcy, bankruptcy litigation and insolvency. He represents secured creditors, focusing on the collection and workouts of defaulted and troubled loans, creditors’ committees, debtors, trustees and other parties involved in bankruptcy.

“Alex’s expertise in bankruptcy and creditors’ rights matters, particularly his loan workout experience, will really help us serve our lending and business clients. This is the third major recession Alex has been through,” said Pierce Atwood Business Practice Group Chair Keith J. Cunningham. “That kind of experience is so valuable in times like these. We couldn’t be happier to welcome him to the firm.”

Mattera has presented and sat on panels for the American Bankruptcy Institute, as well as Massachusetts Continuing Education and the Boston Bar Association.

 “Alex’s expertise in workouts and collections will provide the firm even greater depth on the backend of loan transactions as we continue to provide a comprehensive suite of services to creditors and banks,” said Bruce I. Miller, Pierce Atwood’s real estate lending partner.

Devon Williams Named Managing Partner Elect
Devon Williams Ward and Smith

With an eye to the future and succession planning, North Carolina firm Ward and Smith elected labor and employment attorney Devon Williams as the firm’s co-managing director elect. Williams will assume the new role at the end of 2020. She will serve alongside Brad Evans, who has served as the Ward and Smith’s managing director since 2017. Williams is preceded in the co-managing director position by Ken Wooten, who is retiring from Ward and Smith at the end of this year.

“Succession planning is essential to all businesses, including our own, and choosing a strong leader enables seamless continuity in client service, and maintains stability within the firm,” Wooten said. “I think it says a lot about our firm that we’re selecting a millennial leader to take us into the next decade. Devon will bring a unique, and much needed perspective to the perennial concerns of a fully-engaged law firm.”

Since joining Ward and Smith in 2012, Williams has led the firm’s Labor and Employment Section and co-chaired the Raleigh Geographic Team.

“I’m grateful for and enthusiastic about the opportunity to build upon the legacy the firm has experienced under Ken’s leadership while working in tandem with Brad to continue our efforts to innovate efficient legal solutions for our clients, and attract and retain top-tier talent,” Williams said.

As co-managing director of Ward and Smith, Williams will maintain her labor and employment practice, where she advises employers on wage and hour issues, federal contractor compliance, prevention of employment discrimination, employee discipline and retaliation and harassment claims.

Life sciences attorney Frank Rahmani joined Sidley Austin as a partner in the firm’s Palo Alto, Calif., corporate practice, and will be a member of the Global Life Sciences practice. Ramani counsels CEOs, boards of directors, founders and investors on financings and public offerings, strategic collaborations, licensing matters, technology acquisition and spin-off transactions.

“Frank has a well-earned reputation as a trusted adviser, which is built on enduring relationships and breadth of experience representing high-growth, cutting edge life sciences and technology companies and investors at all stages,” said Martin Wellington, managing partner of Sidley Austin’s Palo Alto office. “He has great energy, a high-quality practice and a clear vision for growth that aligns with ours. Frank’s arrival signifies our strategy to build out Sidley’s presence in Northern California.”

Womble Bond Dickinson retired partner and North Carolina trial lawyer Allan R. Gitter passed away May 17 at the age of 83.

Allan Gitter Womble Bond Dickinson
Alan Gitter

Gitter joined Womble Bond Dickinson in 1962, when Womble had about a dozen attorneys.  Gitter was the lead attorney in over one thousand cases filed in North Carolina state and federal courts between 1964 and 2009. Many lawyers who are now partners with the firm tried their first cases with Gitter, including Gemma Saluta, Murray Greason, Rachel Keen, Jim Morgan, Rick Rice, Bill Raper, Ellen Gregg, Alison Bost, Brad Wood and Chris Geis.

Gitter was inducted as a fellow in the American College of Trial Lawyers in 1982, and served as an Advocate in the American Board of Trial Advocates. He loved legal research and the law, but his interests also included coaching the Tiny Demons Pop Warner football team and his work at the Children’s Center, a facility devoted to the education and care of children with chronic health issues.  He put himself through law school in part with his work as a night radio deejay on the campus radio station, employing his trademark sign-off at the end of the night:  “Remember never to buy bad dreams.”

Gitter is survived by his wife of 32 years, Sandy; three children, Alison, Kent, and Ryne; two step-children, Wendy and Rob; multiple grandchildren and one great-grandchild.

Law Firm Innovation, Awards and Accomplishments

Redgrave LLP, a law firm focused on information governance and eDiscovery law,  formed a Restructuring Discovery Team, working closely with law firms and advisors on litigation readiness and discovery for all types of restructurings. The Redgrave team handles data collection, preservation and review efforts during pre-petition and after a bankruptcy has been filed.

“We are proud to be the nation’s leading eDiscovery law firm, and we are very excited to formalize our experience in restructuring discovery,” said Redgrave partner Christine Payne, head of the firm’s restructuring team. “Many people do not realize how different discovery can be in the restructuring and bankruptcy contexts, as opposed to typical civil litigation. There is significant client need in this area, and we want to support that.”

Managing Intellectual Property named three Texas Bracewell partners as IP Stars. Albert B. Kimball, was recognized for patents and trademarks, and Constance Gall Rhebergen and Douglas W. Rommelmann were recognized for patents.

IP Stars covers IP practice areas in over 70 jurisdictions, making it one of the most comprehensive guides in the industry.

In a decision that could provide a roadmap for local Marijuana dispensaries, A Kutak Rock team including litigation partners Andrew King and Fred Davis, and intellectual property counsel Sara Gillette representing Conway, Arkansas-based Harvest Cannabis Dispensary (“Harvest”) secured a preliminary injunction in a trademark dispute.  Natural State Wellness Dispensary, LLC (“NSW”), and Natural State Enterprises, LLC, were using the name “Harvest” in for cannabis facilities across Arkansas, something the preliminary injunction now prohibits.

After an evidentiary hearing conducted over Zoom, Circuit judge Susan Weaver rejected the argument that  The NSW Entities were authorized to use the name “Harvest” through their connection with Arizona-based Harvest Health & Recreation, Inc, a company using the Harvest mark in Arizona, Pennsylvania and Florida prior to the opening of the Arkansas Harvest dispensary.   The court looked at precedent set by the USPTO and other federal courts, indicating products containing more than 0.3% THC are illegal under the Controlled Substances Act and therefore do not enjoy Trademark rights under the Lanham Act. Furthermore, Harvest adopted its name in 2017 and opened its facility in October of 2019, providing the dispensary with state-law trademark rights in Arkansas.

Kutak Rock partner Andrew King: “The Faulkner County outcome is the first of its kind, where a local cannabis dispensary prevailed under state trademark law against a multi-state operator for which federal trademark protection is unavailable. This outcome could provide a road map for local cannabis companies in states where cannabis has been legalized.”

Law Firm and Legal industry Response to COVID-19: A Sampling

COVID-19 has upended business as usual across the country; injecting terms like “flatten the curve”; “PPE” and “Contract Tracing” into everyday conversation.  The National Law Review has covered some of the steps firms and other legal industry groups have taken to have a positive impact during these challenging times.  For example, DLA Piper has signed on to the Ascend’s Five Point Action program, demonstrating a dedication to mitigating the disparate impact of COVID-19 on minority communities.  Additionally, to broaden the reach of Coronavirus information and regulatory developments, Cornerstone Research worked with Stanford University to provide a database of legal articles and memos.  Below are some more instances of law firms and other legal industry groups taking steps to mitigate the negative impact of COVID-19.

Health Care Contact TracingMintz Law Firm provided pro bono counsel to Partners in Health (“PIH”), a Boston global health nonprofit, helping with the development of the Massachusetts COVID-19 Community Tracing Collaborative (“CTC”). The CTC is an initiative that works with PIH, the Massachusetts COVID-19 Command Center, Commonwealth Health Insurance Connector Authority and Massachusetts Department of Public Health to train, hire and deploy workers who will work with individuals exposed to Coronavirus.  This veritable army of “contact tracers” will provide individuals with information about the virus, social support to facilitate self-isolation or quarantine, and provide appropriate next steps so individuals can stay healthy and protect their families; ultimately enhancing the Commonwealth’s ability to respond to COVID-19.  Dr. Joia Mukherjee, PIH’s chief medical officer, says on contact tracing:

Access to this information helps contacts to know how to protect their loved ones, and to get tested or cared for themselves,” she said. “Without knowing our own status, without being able to specifically protect our loved ones, we are all living in the dark. (And) we know that there is significant anxiety in this darkness.

An interdisciplinary group of Mintz attorneys worked with PIH to facilitate this partnership on a pro-bono basis, helping this critical work get off the ground.  Attorneys involved were Dianne Bourque and Ellen Janos, Members in Mintz’s Health Practice,  Elissa Flynn-Poppey, Chair of the Government Law Practice, Julie Korostoff Chair of the firm’s IT Transactions & Outsourcing Practice, Andrew Matzkin, a Member in the firm’s Employment practice, and Corporate Associate Daniel Marden.

“Mintz is pleased to have been able to assist PIH in its efforts to change the course of COVID-19 in the Commonwealth,” said Mintz Member Ellen Janos. “It has been deeply rewarding to work on such a critically important project.”

Another group working to mitigate the negative impact of COVID-19 is the Diverse Attorney Pipeline Program (“DAPP”), a group with a mission to diversify the legal profession by expanding opportunities for women of color law students to secure summer positions at law firms and corporations following their first year of law school, an activity that greatly increases the likelihood of an offer of paid employment after graduation.  DAPP was founded by Tiffany Harper and Chastity Boyce, both women of color who graduated from law school during the previous recession, and are passionate about mitigating the negative effects on women attorneys of color.

Recognizing the disruption that COVID-19 has had on everyone, and specifically law firm internships, DAPP is launching a fund and fellowship for students who are unable to complete their law firm internships this year.  Started with seed money from the organization, DAPP has a goal of 100,000 to fund this program, and is requesting support from law firms, corporations, bar associations, and other nonprofit organizations in the form of earmarked donations.

“As law firms and businesses are forced to cut their summer internship programs, we hope they’ll consider contributing to this fund to support our work of infusing the pipeline to the legal profession with talented, highly qualified women of color in order to address the dismal statistics surrounding the number of women of color who are hired, retained and promoted at large law firms across the nation,” said Harper.

Students who receive the stipend will receive financial support as well as intensive professional development; involving volunteer legal work to facilitate skill development and meaningful training for participants.  Additionally, the awardees will be matched with lawyer mentors, be provided with professional development and coaching.

“This is not a time to give up on diversity and inclusion efforts; it’s a time to refocus our efforts on preparing the next generation of lawyers for the challenges they’ll face in a diverse, global marketplace,” added Boyce.


Copyright ©2020 National Law Forum, LLC

For more Law Firm News updates, see the National Law Review Law Office Management section.

IMS Insights Episode 11: COVID-19 Analysts Briefing on Litigation Impacts

To better understand how the COVID-19 pandemic is impacting the commercial litigation community, IMS ExpertServices conducted analysis and gathered input during the first half of April from more than 400 attorneys, in-house counsel, experts, and stakeholders throughout the commercial litigation community.

In this special podcast feature, you’ll hear commentary from the April 30 Analysts Briefing hosted by IMS on the study’s top findings and other key trends for commercial litigators, with discussion from a panel of thought leaders including:·

·         James Crane, Chief Revenue Officer at IMS ExpertServices

·         Rudhir Krishtel, Certified Co-Active Coach and Facilitator with Krishtel Coaching, Former Senior Patent Counsel at Apple, Former Partner at Fish & Richardson, and IMS Thought Leader and Contributor

·         Nate Robson, Litigation Editor at The American Lawyer

·         Eilene Spear, Operations and Project Manager at The National Law Review

·         Ty Sagalow, Commercial insurance expert and IMS thought leader and contributor


© Copyright 2002-2020 IMS ExpertServices, All Rights Reserved.

For more on COVID-19 litigation, see the National Law Review Coronavirus News section.

 

Leveraging Your Microsoft Assets in this Remote Access World

The COVID-19 pandemic has led to an enormous increase in remote work. Organizations without remote access capabilities have adapted and implemented new solutions, while organizations with existing solutions have been forced to evaluate new capacity requirements and scale their solutions accordingly. You may be surprised to learn that your existing Microsoft assets include functionalities for remote access, and you can get rid of redundant or more costly solutions. Your Microsoft subscription, license, operating system, software, service, etc. should all be reviewed in some capacity at this time.

“In recent years, Microsoft has made a multitude of investments and changes to its portfolio and offerings,” says Scott Riser, Director of Microsoft and Data Management Services at Plan B Technologies, Inc. (PBT). “Some of these changes are quickly noticed during renewals or annual reviews, such as Microsoft Server Operating Systems licensing. However, many changes have happened ‘in the background’ and could easily be missed by organizations,” Riser says. “Make sure you’re taking advantage of your existing Microsoft assets, and know your entitlements – especially now.”

Most of these changes go beyond the typical Microsoft portfolio of Office products and Operating Systems. Microsoft has placed significant focus in the areas of security, video and audio conferencing, VOIP, virtual desktop, artificial intelligence, and cloud computing. Many of these Microsoft assets, which are likely already in your organization, are gaining additional functionality for your remote workforce. This can be done with minimal management overhead and reduced implementation costs over competitive third parties. So how do you ensure that your organization is properly leveraging its current Microsoft assets?

Know What You Have

Leveraging Microsoft assets to the fullest starts with knowing what your organization has purchased, and to what it is entitled. This goes beyond Microsoft assets alone and a full inventory of software, services, and features within your environment should be performed sooner rather than later. This full evaluation serves three purposes. First is that of an internal audit to ensure your organization has the proper number of licenses for each product and to correct licensing infractions before you incur hefty true-up costs or additional licensing fees. The second purpose is educational, as it provides technical staff and administration an understanding of the entitlements each software or service provides. This is particularly valuable since Microsoft 365 cloud subscriptions now include licenses for some on-premise systems. The third purpose of this evaluation is to identify overlaps in features and functionality among products to lower costs, simplify management of the environment, and promote productivity.

Failure to perform a review of current entitlements can result in a significant overspend and an overly complicated environment that is more difficult to manage. For example, your organization could be using a third-party Multi-Factor Authentication (MFA) provider when an already purchased Microsoft subscription has MFA built in, or you may have purchased an MDM solution that overlaps with an existing entitlement to System Center and Windows Intune.

With information from these internal audits, organizations are better suited to make impactful decisions while controlling cost. Once your organization understands what it is entitled to within your existing environment, you must then determine situational awareness for future planning and sustainability. Items that should be included in planning for the future include (but are not limited to) security, management, user workflow and communication.

Secure the Environment

If your workforce is now remote, has your organizational data gone remote as well? Now that most organizations have been required to provide users with remote access, either through Virtual Desktop infrastructure (VDI), cloud-based applications or internet portals, the attack surface for exploitation by bad actors has never been larger. This puts organizations at greater risk of a security breach. Knowing this, Microsoft has invested billions of dollars to protect their product offerings and combat cyber criminals.

Microsoft now has a full portfolio of security offerings, and buildings full of teams dedicated to securing their services and platforms as well as assisting criminal investigations. User identity has become the new perimeter for data as organizations move to cloud-based technologies and a remote workforce. This has been the case for years as VPNs and firewalls have limited preventive impact when a bad actor has credentials to access them. Microsoft has been active in making user identity more secure with easily implemented tools and access policies while also integrating artificial intelligence and improved reporting. These products and features include Windows Hello, Azure Multifactor Authentication, Conditional Access, Credential Guard, and User Sign-in Risk Reporting/Alerting amongst others.

Identity of course is only one attack vector that can be exploited. Therefore, it is essential to secure end user devices and the infrastructure where data is located. Microsoft Defender and Advanced Threat Protection (ATP) is ideally suited to protect servers and end user devices when implemented properly. Plus, it’s included in many Microsoft 365 subscriptions.

“In the past, Defender has received a stigma of being unreliable and faulty,” says Scott Riser, “but Defender has since become one of the most reliable pieces of security software available today. Why? According to Microsoft, over 1 billion devices are currently running the Windows 10 operating system, providing trillions of telemetry data points to continuously improve all Microsoft security services. And as a result, Microsoft has the largest security footprint in the world.”

The data provided by Defender from these devices is reported to artificial intelligence algorithms as well as Microsoft security teams to patch security flaws and update anti-virus definitions at unparalleled levels in the industry. It is also important to note that Microsoft Server Operating systems utilize Defender and the Defender platform can be upgraded to Defender ATP software to enhance built-in capabilities and provide additional security for on-premise data.

With an increasingly remote workforce, many organizations have moved their data to Exchange Online, SharePoint Online, and OneDrive for Business. Microsoft has built-in security solutions for these platforms as well. Depending on the Microsoft subscription that you’ve purchased, Exchange Online Protection, Azure Information Protection, Microsoft Advanced Threat Protection and Azure Advanced Threat Protection, can all be utilized to secure data stored in these locations. Furthermore, Microsoft understands that some organizations require more control over their data and systems in Infrastructure as a Service solutions such as Azure and AWS. For this, a combination of Defender ATP and Azure Sentinel can provide real time analytics and automated responses for detected breaches based on custom workbooks in a pay-as-you-go model.

All these security measures protect against bad actors attempting to breach an organization’s data. This of course does not protect an organization from internal threats, such as disgruntled employees or the inevitable human error. Organizations must now secure data from exfiltration which is not as simple as preventing all data from leaving the organization. The problem is more nuanced. A full lockdown, though simpler, would prevent your organization from essential collaboration with its staff and clients. Failing to protect data internally may result in proprietary data inadvertently shared with a client, or competitor, or being lost entirely. In healthcare and financial services, it can result in a loss of personal identifiable data, or banking information, which carry hefty fines from regulatory bodies.

Microsoft Data Loss Prevention (DLP) is the solution to this issue. With DLP, custom policies can be defined by an organization to determine data that should not leave the organization. It can also remind a user to review data being sent as it could possibly be confidential. DLP continues to gain traction in Microsoft 365 settings as the need to protect cloud-based collaboration platforms such as Teams and OneDrive grows. DLP can also be implemented in some areas of on-premise infrastructure. Exchange has built-in DLP features that often go overlooked. Organizations tend to use Mimecast, Proofpoint, and other third-party vendors for these solutions while the built-in functionality remains unconfigured.

Device Management and Compliance

Another challenge of a remote workforce is the ability to maintain and manage devices, both corporate-owned and user-owned. Multiple organizations have made significant investments in System Center Configuration Manager (SCCM), only to find that policies and updates have not applied to end user devices unless they are on the network or connected via a VPN. Organizations can expand their SCCM environment to include cloud distribution and management points for devices that are not on-premise.  But this is not always an ideal solution as it requires additional infrastructure and configuration with SCCM. This has led to a rise in the use of Mobile Device Management and Mobile Application Management solutions such as Microsoft Intune. Through co-management, organizations can continue to utilize SCCM in conjunction with Intune for management of all devices regardless of corporate connectivity. This was further emphasized by the recent integration of the license offerings to provide Intune subscriptions for those with SCCM Client licensing and vice versa.

Collaboration and Communication

Securing and managing a remote work environment is important but ensuring users can communicate and collaborate on work that was previously performed in the office is one of, if not the biggest, challenges. Daily interactions between corporate users should be considered since the ability for face to face interaction through office meetings, business lunches, and other personal touches has significantly declined. These interactions are now being held through chat programs and conference calls. External communication is one of the primary reasons that Microsoft is still considered the industry leader for collaboration software with many companies utilizing the Microsoft Office suite.

A frequently overlooked solution included in your Microsoft 365 subscription is Microsoft Teams which provides instant messaging, document collaboration and audio/video teleconferencing. Furthermore, Microsoft Teams is integrated with and supported by other Microsoft products. It’s also governed by Advanced Threat Protection and Data Loss Prevention services to provide a more secure platform than its competitors with minimal (if any) additional investment. Microsoft Office can be customized based on the needs of the user and can easily be secured and managed when used in combination with other Microsoft offerings.

Getting the Results

Challenges continue to present themselves as users work remotely and organizations refine how they operate. With a vast majority of organizations utilizing Microsoft products in some way, it is important that entitlements are understood to reduce costs and complexities. Organizations can improve their return on investment (ROI) or make new investments once this is understood. Leveraging Microsoft service offerings can be optimized beyond the traditional use of Office products and Operating Systems, to provide a secure, managed, agile, and accessible environment for users regardless of their location. The result will be a streamlined, cost effective, collaborative environment that strengthens your organization’s bottom line.


© 2020 Plan B Technologies, Inc. All Rights Reserved.

For more on technological solutions for law firms and other industries, see the National Law Review Law Office Management section.

IMS Insights Podcast: Episode 9- Rudhir Krishtel On Mindfulness And Wellness For Attorneys Amid COVID-19

In this episode, Rudhir Krishtel joins us to share guidance on mindfulness and wellness for attorneys. He also provides tips and strategies to help with adjustments for those balancing the intense demands of a legal career during the uncertainties of the COVID-19 pandemic.

In his lawyer days, Rudhir practiced law for fifteen years as a federal clerk, patent litigation partner at Fish & Richardson, and later as senior patent counsel at Apple.

Today, he is a certified Co-Active Coach and facilitator, focusing on workplace wellness and intensity for law firms and attorneys. Many lawyers struggle with stress and lack of purpose in their practice. As a former lawyer, Rudhir coaches clients and hosts workshops to identify the issues that hold lawyers back from advancing in their career with clarity and fulfillment.

His work during his lawyer days led Rudhir to train as a yoga teacher through the Baptiste Institute and on mindfulness meditation through Warrior One. He also a Professional Certified Coach through the Coaches Training Institute & International Coaching Federation, and uses this training along with his experience as a practitioner to deliver much-needed support for the legal community. Details on Rudhir’s consulting and mindfulness workshops for attorneys can be found at www.krishtel.com.

Transcript

Teresa Barber: Rudhir, hello, thank you. I really appreciate you joining us today. Could you tell me just a little bit for our listeners… Tell us a little bit about your background as an attorney and a little bit about your consulting practice.

Rudhir Krishtel: Yeah, Teresa, thank you so much, and thanks IMS for having me here. I was practicing law for 15 years. I started at my practice as a federal clerk. I was ultimately a partner at Fish & Richardson in their patent litigation team in the DC office. Then for the last five years of my practice, I was senior in-house counsel at Apple out here in the Bay area where I moved to seven, eight years ago.

Rudhir: After 15 years of practice, I started to notice… What I started to see were cycles of behavior in the practice over 15 years, just ways that we all behave at work that I felt like were somewhat compromising to our practice. I started to notice that we accept that stress is a part, a natural part, of our work life. We wouldn’t get paid as lawyers at the rates that we charge, and we wouldn’t be able to do the work that we do if it wasn’t something that was challenging or stressful, so I totally understood that.

Rudhir: But there’s this interesting relationship where work caused stress, but then stress actually started to impact the quality of our relationships and ultimately the work product. It is this weird cycle where work causes stress but then stress impacts the work. I think everyone just accepted that as the norm, and I felt like this was a dialogue that we needed to have and a cycle in the system that we needed to improve.

Rudhir: It’s when I decided to leave the practice. Three years back I left the practice. I retrained first as a mindfulness instructor and yoga instructor. And not wanting lawyers on their yoga mats all the time, I ultimately trained as an executive coach. Now, I coach attorneys. I have a coaching business that’s Krishtel Coaching. I coach attorneys in their practice one on one, and we identify some of the most challenging aspects of your practice and try to move them out of the way so that attorneys have a more fulfilling practice. I also host workshops. I visit law firms and legal departments and host dialogue on ways that we can start shifting our culture, build a greater resilience, incorporate emotional intelligence and mindfulness practices. I also host online coaching programs and webinars on these topics.

Rudhir: The consulting and the coaching practice has evolved over the last many years. I’ve now coached over 100 attorneys, managing partners at law firms, general counsel at companies, a wide range of attorneys on really how they can be better for themselves and others in their practice and really trying to shift and improve our culture in the legal workplace.

Teresa: Rudhir, it sounds like you identified the need while you were in the boiling pan yourself and didn’t really see anyone meeting those needs. As you’ve worked now for a number of years with clients, especially at big law firms and at corporations in house, what have you seen as the return on it? It sounds like you also had a theory that if we start to apply this, it’s not only going to improve quality of life and wellness and balance, but will also impact work product. I would be interested in some antidotes from clients you’ve worked with so far.

Rudhir: Teresa, what you said first is what I want to tap into a little bit, which is what I did notice during my time at Apple. You make this switch from a partner in law firm to go in house, and we think about it as sort of this greener pasture switch, attorneys going in house. What I notice is I got more senior in the practice. With every level up, growing of the team, salary bump, promotion, whatever it was, every time the further I got up, the lonelier I felt.

Rudhir: It’s very interesting that here we are achieving this so-called dream, and yet I felt somewhat more isolated, and I’m a pretty social person. I’m the person at Fish that was head of recruiting for our office. I’m definitely the person that planned all of the March Madness pools and getting everybody back together outside of work. I’m that person. For me to feel somewhat isolated was really fascinating, to be naturally connected and connecting and yet feel lonely at the same time was a very odd experience.

Rudhir: But I felt it more and more as I got more senior. I started to realize, “Well, if I’m experiencing this, how many other people are experiencing this?” There’s this unique thing that happens in legal practices that we are shrouded in confidentiality and in adversity in this adversarial experience. There’s a lack of trust that we have oftentimes with our colleagues. The thing that’s most challenging for me at work, I’m not sure I’d be comfortable talking to my colleagues about, whether it be a difficulty with a technical issue or a difficulty with building business or a challenge with how I’m managing my team. Sometimes we’re not comfortable being necessarily open about that with our colleagues just because of the legal work environment.

Rudhir: I started to notice this, and I realized I’m so senior in this practice I wish I had my own set of advisors. I’m at this point where I’m generating enough revenue. I’m generating enough revenue for myself that small businesses generate. We’re in the hundreds of thousands now. Some lawyers are in the low seven figures in terms of their business generation and their income. Yet, I don’t know who my closest advisors necessarily are that I just deeply trust.

Teresa: Right.

Rudhir: I started realizing, “Well, if I’m having that issue, there must be other attorneys that are having this issue.” And it becomes even that much more compounded with intersectionality. Now we’re talking about women that might be having these challenges, attorneys of color that might be having these challenges, really everybody. When I started to notice this, I thought, “Here’s a space that I feel like we need someone to step into.” That’s the decision that I made. It’s very interesting. I work with a wide range of clients, and to sort of address your second question, the second part of your question, is it’s just been deeply valuable this work for the clients that I’ve worked with, and it shows up in many ways.

Rudhir: People don’t often think about connecting with… Well, let me say that differently, Teresa. When we have somebody in our corner that is willing to champion us, that is willing to hear us out, that is willing to co-strategize with us, that is sort of a peer in the practice and that has real confidentiality, so much is possible. I’ve sort of seen that with my clients. I’ve seen a lot of growth and evolution on people having much better relationships with their teams, managing their groups in healthier ways, finding ways to solve problems with some of the challenges they face in their teams, interacting with people in a healthier way, becoming that much more adapt at generating business and for people that are looking for some sort of a transition and feeling stuck really having place where they can start to dialogue and strategize and brainstorm on that, and we come up with just incredible directional shifts for people in their life and their business. This practice I feel like has been a huge benefit to the clients that I work with.

Teresa: You touched on something that was interesting to you a minute ago, Rudhir. You were talking about this feeling of isolation, social isolation. We’re talking today and it’s later in March 2020. Back on December 31, 2019, the World Health Organization first identified an epidemic in China. Today, we’re looking at shelter in place orders not only around the San Francisco Bay area but throughout that entire state possibly with more coming in other markets and many people now working in a brand new environment, work from home environment where those lines between family and work are blurred a little bit.

Teresa: Looking at the 2019 novel Coronavirus pandemic, this is unprecedented territory, with you and your work with clients, what are you seeing right now?

Rudhir: It’s very interesting because I tend to think that lawyers as I mentioned despite us working with each other and connecting tend to have somewhat more of a natural isolation and loneliness already. This is just me saying this. There have actually been studies. The ABA has put out studies. There are psychologists that have put out studies that identify and indicate that lawyers have less sort of a lower social tendency than others than most.

Rudhir: And so at a time when we’re now even doubling down on the isolation, I’ve seen a lot of challenge. I see lawyers that are expressing concerns over a lot of things. Here we have a group of people that are natural problem solvers, lawyers are natural problem solvers. We are always thinking ahead. As we think ahead, we’re thinking ahead to how long is this going to last. There’s an uncertainty.

Teresa: Right.

Rudhir: We’re thinking to how is this going to impact my business? For in-house attorneys the business that they’re in and corporation that they’re in, but for outside counsel attorneys, how is this affecting my business development and business generation? What does this mean for my income? What does this mean for my team? What might this mean for the health of my family and the people around me? What might this mean for others? There’s just a lot of concern layered on top of a business and a practice that already has us sort of in a position where we’re “constantly putting out fires.”

Rudhir: I think that what I’m seeing is a higher level of anxiety in some than what might usually be the case. I think when anxiety comes up, we are not at our best self. We are not behaving in a way that is sort of rooted in our best self. We’re being reactive. We are thinking about we’re in sort of a flight or fight mode. We’re thinking about ways that we can run and save things or we’re thinking about ways that we can sort of fix things right away. I think there’s a deep discomfort that’s happening in this moment.

Teresa: With the questions that you’re seeing from clients right now, I know you’ve set up a webinar right now. You’re providing some guidance to people who are looking for it. What can people do right now? With the sense of what do I have control over, there is so much certainty. What are you telling people right now?

Rudhir: Yeah. I set up a free webinar Wednesdays mornings at 9:00 a.m. Pacific, noon Eastern on mindfulness tools for managing uncertainty. I find that mindfulness practices, resilience practices, emotional intelligence practices are very much relevant in this time. I think that even just paying attention to the news has me at a slightly higher level of anxiety. I’m waking up a bit more tired than usual this week. It’s just very interesting. Not much has changed because we work from home my wife and I, and so for us to practice social distancing and kind of put a barrier around our house is actually not too different than what we’re usually doing.

Teresa: Right.

Rudhir: I’m slightly more on edge and slightly more tired. These practices of mindfulness and resilience and emotional intelligence, I think, are just really valuable in this moment. I’ve started to offer them out on a weekly webinar, just simple tools. For example, you asked what might be something that we can do. Lawyers, we tend to be very head heavy. I didn’t even understand what that meant a few years ago because I didn’t know what the difference was between that and anything else.

Rudhir: We tend to be thinking people. We’re valued for our knowledge. People want us for our advice, and we want to offer our advice. We’re problem solving. We always respect and value the attorney that “knows more.” So much of our work is in our head. Settling the body and settling ourselves in these times actually happens in the body. What percentage of our livelihood is our mind physically, and what percentage is our body? That’s an interesting question to ask. So much of us is our body. In fact, most, if not all of us, is our body.

Rudhir: One of the first tools that we talked about in this webinar was a body scan technique. A body scan is a meditation technique that allows us to just pay attention to what else is happening right now in our body. There’s just a lot of information there. Lawyers are great at gathering information. We’re incredible at intake. I think in this moment one of the tools is just actually take intake for yourself. We’re always asking someone else, “So what’s your problem? What happened? Who are the people involved?” Et cetera. The questions that I offer are, “What’s happening in my body right now? What’s happening in my breath? What am I noticing in my chest? Is it tighter? What am I noticing in my stomach? Am I at unease? Are my feet grounded? What happens? What’s the difference between grounding my feet versus sitting them elsewhere? What’s the quality of my breath? What’s my body temperature?”

Rudhir: I think when we scan our bodies… And on my website I have mindfulness audio recordings and guided meditations, and these are available all over the place. There’s apps like Calm and Insight Timer and Headspace. UCLA has an incredible meditation center, and they have some great guided meditations. I offer a few on my website at Krishtel.com. Basically, what we’re inviting people to do is actually just pay attention to what’s happening for them in a moment.

Rudhir: This isn’t something that we need to do all day. A body scan meditation can be 10 minutes of your day, five minutes of your day. Pay attention to your breath. Even right now is one of those podcasts, Teresa, if you just sort of take a breath and pay attention to what’s going on in your lungs and what’s going on in your throat and just breathe. You just notice sort of a different quality show up. We kind of exist in this on edge slightly underlying nervosa, and it’s normalized in our practice. I think we can in this moment because it’s even exacerbated, it’s slightly more acute because of all the information coming in and everything that’s changing, I think is an incredible time to pay attention to breath, pay attention to body and just what’s going on for us.

Teresa: That’s really helping in hearing you talk about almost an inventory of awareness. Rudhir, for those, wellness has been a buzzword that’s been around and gaining increasing traction and attention in recent years. Can you break down mindfulness for those that may not be familiar with that term and just help us understand when we say mindfulness, when you say mindfulness, what do you mean?

Rudhir: I’d love to. I’d start by actually just saying that when I started regularly meditating, it was the beginning of an incredible shift in my life both professionally and personally. It’s for those who are exploring meditation and dabbling, the commitment to a practice of 20 minutes a day, 20 minutes twice a day or even 10 minutes a day of mindfulness practices I think can be the beginning of a huge evolution and even revolution in your life in terms of how you feel and just fulfillment.

Rudhir: When I was at Apple about a year or two in, I started a daily practice of 20 minutes twice a day of meditating. I’ll tell you a little bit more about what is mindfulness and different ways of practicing. Just to kind of get people in tune with the benefits, I started practicing, and so much changing. Three months of regular practice, I committed to 20 minutes twice a day, and I did it because actually I paid for a class. When you pay for a class for some reason, it’s just like a gym membership. Something happens, and you’re like, “All right, I’m paying the money. I’m going to make a commitment.”

Rudhir: I make the commitment of 20 minutes twice a day. I’m a coffee drinker. It’s not the morning coffee. It’s the 2:00 p.m. coffee for all my friends at Fish and Apple. At 2:00 p.m. it was clockwork. I’d come around the halls and say, “All right, let’s just go get coffee.” I noticed after two or three months of practicing… It’s not like it has an alarm set, it’s just at that time of the day you start feeling a little bit tired. My morning energy is I’m ready to go. Around 2:00 p.m. it starts to wither.

Rudhir: I started to notice three weeks had gone by and I hadn’t asked anyone for coffee. I’m an engineer by trade. Trained as an electrical engineer, studied, became an IP attorney, so I need a logical underpinning for a mental practice. At least I did at that time. I don’t anymore. I’m all in now. But back then I sort of needed some evidence. The evidence was just clear. I have so much more energy that I don’t need coffee. I don’t drink coffee from 7:00 a.m. until midnight, and I’m just fully functioning.

Rudhir: I couldn’t believe the shift that happened for me in that moment that I was getting a physical benefit to a mental practice. That’s when I decided I was all in. I started to have healthier interactions professionally. I started to notice that things were slowing down. People talk about time is going by fast. That’s not a thing for me anymore. Time actually does not go by fast. I started to worry less about all the things that were coming and about what was happening. I just started to feel more present.

Rudhir: There’s so much energy there. The energy is because… And this is for the people that are just looking for the logic. If your mind is moving less, and it’s sort of moving at a less rapid pace, it’s triggering less emotions. If you think about when you pay attention to what your thoughts are in a two minute period, “What am I going to eat for lunch?” It’s the basic thoughts. “What am I doing this week? What’s my schedule? What am I going to eat for lunch? What’s for dinner? What’s happening with that meeting?”

Rudhir: Each of those thoughts… And you notice in a two minute period they just keep spinning. Each of those thoughts may trigger and may bring out an emotion. When emotions come up in our body that is a moment where your energy starts to get drained because an emotion can trigger you to hunch your shoulders, and you don’t even realize. It may start reducing… slowing down your breath. You don’t even know. When that email comes in from that challenging client or from that colleague, you sort of hold your breath.

Rudhir: Those little moments add up in the course of the day. In our jobs you can work from 8:00 a.m. until midnight, not leave your desk, and feel like you ran a marathon that day. Mindfulness and meditation practices start to slow that down. They start to slow down the rapidity of the thoughts. They start to readjust how reactive you are to these things. They relax your body in these moments when you might naturally be tense or stressed. You’re gaining back 5% to 10% energy.

Rudhir: There’s this book Ten Percent Happier. I relate to almost everything that’s in that book because you really are. Ten percent more energy in this moment can be huge. How much more energy do you have at the end of the day for your colleagues, your clients, your family? You just have so much more energy. Just 10% can make such a difference. You were asking about what is mindfulness, but before I go into that, I’m curious if any questions are coming up for you based on what I’m saying?

Teresa: Well, I’m just anticipating questions. I think seeing the email come in or thinking about the email, it’s not saying that email is not important or that client’s need isn’t important, it’s putting it into a place where we’re not maybe as reactive to it, where it’s kind of processed in a way that is a little more centered. Right?

Rudhir: Yeah. This is a great dovetail into what is mindfulness because I think there’s a lot there. When I think about mindfulness you’ll see a range of definitions. But I consider if we’re paying attention to ourselves, our thoughts, our emotions and our body, and noticing what’s happening with those things, without judgment. And the without judgment piece is actually really important because oftentimes what’s happening for us we might think is wrong or something’s not great about it or amazing about it. Mindfulness is actually just let’s just pay attention to what’s happening.

Rudhir: I talked about this body scan technique as sort of one way which is paying attention to what’s happening with your feet and your legs and your stomach and your lungs and your shoulders. When that email comes in as an example. We all know that email, that alert, that case alert. That colleague, that person we don’t like, all of it. It happens at least 10 times a day. Ten times a day, 20 times a day, 100 times a day you tense up when that message comes in, and just sort of noticing what’s happening in your body in that moment rather than necessarily solving the email. Because our first reaction is what am I going to say? You might notice the quality of your breath in that moment that you’re actually not breathing. It’s fascinating just taking a deep breath in that moment rather than reacting right away and just noticing what happens to your body that it settles.

Rudhir: Noticing what happens to your shoulders, they tighten up, that you sort of take a forward learning approach, that you might get uneasy in your stomach. All these things are happening. As we pay attention to that, when we’re responding to that email from that place, it’s actually fight or flight. We’re responding from a place of fight or flight. Fight or flight is sort of an old… It’s an old system. It comes from an old brain of ours. It’s the amygdala. It’s an old brain. It’s a lizard brain that we have. It basically really comes from this era and this time of evolutionarily when we were sort of fighting bears and lions. You’re sort of out in the wild and you’re worried about fight or flight. Either I attack this thing that’s in front of me or I’ve got to leave.

Teresa: Base survival.

Rudhir: It’s survival. Yeah. By and large in our legal office, outside of that scary partner in the corner, there’s no bears around. There’s no tigers. For us to be experiencing fight or flight as much as we do in the course of our day is really a ratio that it happens versus the actual need is way out of proportion. The other thing is that creativity, centeredness, true leadership, aren’t happening when we’re in fight or flight. We’re not coming from a collected and a gathered place. We’re coming from a reactive place.

Rudhir: When we write a brief in a case, we don’t write a react, we write a response. I use these two words differently. There’s reacting, and there’s responding. I think responding comes from a place when we gather data and information, we use our wise lawyer selves, we are using wisdom, and we are responding in a gathered and a collected way. We’re reviewing. We’re able to come back to people from a centered place. That’s what we want in our briefing. That’s what we want in our responses to our colleagues, in our communications. We end up feeling in a reactive place, and so it’s fight or flight. It’s like, “If they say something, I can defend myself,” or “I’m going to avoid this email for a few hours because I’m nervous about what’s going to happen.”

Rudhir: So all these things come up. But when we take a breath we notice what’s happening in our shoulders, we notice what’s happening in ourselves, we notice the thinking and the nervousness that might be happening in our head. Maybe we can respond in a healthier way. Maybe we can slow down some of that movement and gain some energy back.

Teresa: Interesting using the word creativity. We’re in a transformative moment. Whether it’s a temporary transformation or whether we’re going to see lasting effects. We have the White House signing the Defense Production Act. Many people working from home. I’m sure for many there’s a lot of scary elements to what we’re seeing with the public health crisis around COVID-19. You and I we’ve had some earlier conversations about possibilities out there, but what do you see, Rudhir, right now as possible in this moment?

Rudhir: We have to be very thoughtful about many people whose health is being compromised in this moment, and we have to really be thoughtful about many people whose lives have shifted and are challenged by access to resources and hourly workers and wage workers whose jobs are being eliminated in the short term. There’s a lot of challenge and compromise that’s happening at this moment. We want to make sure that we keep our awareness on that.

Teresa: Right.

Rudhir: I actually feel like interestingly enough a lot is possible in this moment. I think there are new ways that we’ll be able to connect with people and we’ll be testing out. For example, this webinar that I’m doing or the greater number of video calls and group calls that I’m having online where people are finding healthier ways to interact. I actually think it’s an incredible time to call that colleague or that contact that you haven’t been in touch with for a while and just say, “Hey, how are you doing?” And just get on the phone or get on a video call and just listen and be with somebody and connect in a way that you might not have otherwise.

Rudhir: I do feel like people might have a little bit more time now, and if you think it’s a time where, for example, business development dies down, I think actually it’s the exact opposite. People are looking to connect in this moment, so fill that void. Finding new ways to connect right now, to reach out, to interact, to connect with your families and yourselves, I think that’s huge in this moment.

Rudhir: I think time alone can be an incredible time for coming up with new solutions and to be creative. I think about Isaac Newton came up with some of his most valuable theories, the roots of calculus, and the basic understandings that we have on gravity, some of the most critical theories that he came up with were during the Plague when he had to leave Cambridge and isolate during that moment.

Rudhir: Social distancing, this isn’t the first era of social distancing. This has been going on with every pandemic that we’ve experienced in the history of time. Even in that moment he came up with some of the most valuable scientific principles and mathematic principles that we lean on today. There’s this huge opportunity in this moment to be creative, to think about what’s possible.

Rudhir: And as lawyers we are in this service industry, and so there’s this incredible opportunity to think about what are the new ways and the different ways in which we can serve others and add value? When we are reactive and in fight or flight, we aren’t thinking from that place. We’re wondering how to protect ourselves or wondering how… what’s going to happen to us. But when we start slowing down and rooting in, we remember that there’s so much possible in this moment for all of us, so many systems that we can build to serve our clients and to support our colleagues.

Rudhir: I’m going to be offering team building webinars in the next few weeks. Here’s an opportunity. Your entire team is isolated. How do we stay connected in this moment? So maybe we jump on an hour and a half Zoom call, and we actually do a team building exercise, facilitated exercise, in this moment. For me, I just feel like so much is possible, and it’s time to really start thinking about creative ways that we can connect with others, which we all need as humans and in our professions, and so what are the ways that we can do that now?

Teresa: That’s really interesting. We’ve been hearing talk about… We’ve all been hearing the guidelines around social distancing, but moving to the term physical distancing to recognize that we need… We still as humans we still need a little bit of that connectivity that you’re talking about. Interesting. Rudhir, some of the resources we’ve been monitoring and sharing with our clients have been resources you have been sharing with broader audiences. Can you talk to us about what’s out there right now? What resources are there? You’ve really been pouring a lot of your focus to provide some guidance and help right now in the recent days and weeks. What’s out there right now? What are you working on, and what could you suggest as resources for people?
Rudhir: Well, we mentioned it once already, but I’m doing this weekly webinar on mindfulness tools for handling uncertainty, and I’m doing this every Wednesday morning through my relationship on the co-chair of the wellness committee for the National Asian Pacific American Bar Association. We’re doing a similar webinar on Thursdays every week right now, myself and a mentor of mine, Angela O., are doing this webinar every week for that community.
Rudhir: I’m talking with the Association of Corporate Counsel on putting out a webinar on what tools we can use to manage the challenge. There’s a couple of bar associations that I’m working with on how we can exhibit our leadership in this moment. How can we show leadership in this moment of challenge and difficulty? From my perspective, there’s a lot of offering that’s happening in this moment, and I think what’s really beautiful and really nice about the community is actually seeing all the things that are being offered up in this moment and ways that we can support each other.

Rudhir: I think it’s a great time to pay attention and listen and get online and see what’s being offered by others. There’s a lot of opportunities to interact in workshops and dialogues and ways to connect from home right now that I think people should be tapping into. I think it’s also just a time to connect for people that have the luxury of doing that with family in their home or even with nature. There’s no restriction on necessarily going out in some areas and actually just taking a walk and connecting in that way.

Rudhir: I do workshops on building resilience. Part of those dialogues we talk about, “What’s restorative for you?” What’s restorative for you? The answers that people typically come up with are things that are just very accessible to us even in this moment, which is time with my family and my friends, connecting with my pets, eating a really good meal, watching a good show, taking a walk in nature. All of these things people find restorative are by and large free and still very accessible to us in this moment.

Rudhir: This might just be a nice healthy hibernating moment for all of us. I think that another thing is this is actually a great opportunity for skills building. I work with a range of clients. For some of them, presentations and stand up are something that they like working on. There’s nothing stopping people from being at home and recording a presentation and seeing how they are. When we start thinking about what’s possible in this moment, I feel like there is so much opportunity.

Teresa: One of the other areas, we were discussing earlier, Rudhir, related to the new work at home scenario. Looking at the normal heavy workload that an attorney deals with, at least having that separation between work and home, without being blurred now, which not the case for you necessarily. You’re accustomed to it. What guidance are you providing right now for how to handle that new blurred line and how to handle what is really a novel situation for many professionals and especially for attorneys?

Rudhir: I think that it’s very interesting seeing this transition that people are making to being at home. Luckily, I’ve been working at home for a few years now, and so this transition wasn’t so difficult. I definitely feel like there are things that we can do to make this that much more comfortable. First, I think for people that don’t work from home a lot, it’s actually setting up a comfortable situation for sitting.

Rudhir: Some people might think this is the time to just work at the dining table or in that uncomfortable chair, but we might be here for a while. Maybe it’s time to get a nicer chair, a nicer desk at home. Maybe it’s time to invest in that, a standup desk or something, a chair that’s got good support for you. So actually just sit in a place that’s comfortable and not necessarily in the thing that you might default to when you do a little bit of work from home.

Rudhir: Second, I think that things that are really helpful are really when we’re working from home the boundaries really start to fade between work and home literally. There’s really no boundary anymore. You might have this urge to almost work all the time. There’s really no limit to it. I think there’s this mentality around clocking in and clocking out that I think can be a really welcome shift in this moment.
Rudhir: If you’re putting in certain hours, actually when does the pen go down? When does the laptop get shut? What are the few hours during the day where you’re actually just doing the thing that you need to do to take care of yourself or center? For some people, they’re not commuting anymore. They use that commute time as the period to transition from work to home. Create that transition period for yourself. Sit for five or ten minutes and do nothing and allow the mind to settle and shift. Let’s not just use all of our time now or fill all of that time with work because doing that along with all the information that’s coming in and the way that the world is changing can really start draining you further.

Rudhir: I think healthy boundaries with work right now are imperative and actually maybe just creating some mental shifts. When I go down to the living room, when I’m in my next room, that’s when I put the laptop… The laptop stays in this area of the house. I don’t let it carry everywhere. Just trying to think about physical and mental barriers that you can start to create between work and home even when you’re in one place so that it’s not all bleeding together. We work effectively when we are restored. We need to reenergize. So think about the things that reenergize you and try to build in systems at home that allow you to keep that energy.

Teresa: That’s helpful. Rudhir, you mentioned one mentor a few minutes ago in our conversation. Can you talk to me about any mentors that you’ve had throughout your career who’ve especially shaped your thinking, shaped your own career?

Rudhir: There’s so many. It’s a difficult question. I remember when you emailed me in advance about some of the things you might ask, I said let’s do this at the end. I was hoping it wouldn’t even get to these. I have so many mentors. There’s so many people that have been valuable. In the work that I do I always feel like I stand on the shoulders of so many people that came before, and so there’s just so many experiences that I have that are learning.

Rudhir: I think the place to start is that I just feel like every opportunity and every interaction is a moment of learning. I feel like I’m learning from people all the time. Mentors is a really higher elevated state for somebody I feel to hold that space. I learned so much from my clients. I learned so much on calls like this. I learned so much from every interaction. I think the first thing that comes to me is actually just not losing sight of the learning opportunities in every interaction. What can you learn about this person across from you and the rich experience that they have? What value might you be able to get in that possibility of that conversation?

Rudhir: The person that made this entire next chapter of my life that much more possible for me was my wife. When I was in my last few years at Apple, I started to feel this itch, and it was… I’m not sure, but I can’t say that I’m as happy as I’d like to be in my life professionally. I think there’s something else. I don’t know exactly what I want to do. I’d sort of come home every few days with this dialogue with her.

Rudhir: I’d sort of talk about different things that I want to do. I’d tell her, I’d say, “You know, I think I need a month or two off. I need a month or two off. I’m going to ask my manager and team if I can combine my four weeks of vacation with one other month off. It could be unpaid. I don’t care. I just need a couple of months to sit.” She said, “You don’t need two months. You need a year.”

Rudhir: I just thought, ” A year?” Apple doesn’t have a year long sabbatical program. How are we going to do that? She said, “I’m giving you a year.” She said, “For one year you don’t need to do a thing. You don’t have to generate any income. You don’t have to do anything around the house. You don’t have to do anything for a year, and whatever you do after that I don’t care. But for one year just take a break.”

Rudhir: I have never had that kind of permission before or just being met by somebody that was saying, “Look, you’re good as you are. You don’t need to do anything.” I think that that’s amazing. I just felt like to get that type of support from somebody… My wife runs a nonprofit. My mind was, “How are we going to manage the finances and everything?” She’s like, “We’ll budget. We’ll plan the way that organizations plan when they go through a transition.”

Rudhir: So we made the plan. As soon as the plan came into place, and I saw that it was possible, everything that was happening was leading to signs of leaving and taking this time off. I think she has a way of thinking and a being that’s very different from what I’m used to in my environment. It’s very refreshing. She really values people taking the time to restore because we don’t know what’s possible. She’s really at the sort of root of this transition, which is allowing me the time and space to think and see some of the challenges in our workplace.

Rudhir: What I did during that time off is I just wrote a lot and investigated and understood a lot about our work, and that’s what allowed me to see this opportunity for stepping into this whole new career path for me. When I think about people that I look up to or I look to, I think about right now in this moment of my life I think about my wife first.

Teresa: Rudhir, that’s really wonderful to hear you say it, and I appreciate you sharing too on such a personal level that story.

Rudhir: Well, I just want to offer that in this moment I feel like we’re experiencing challenging times. I feel like we’re part of an amazing profession that can actually offer a lot. If anyone could use any support or has any questions, please feel free to reach out. My website is Krishtel.com. My email is simple. It’s my first name Rudhir@Krishtel.com, and I’m sure you’ll be providing it, Teresa.

Rudhir: But feel free to reach out in this moment because I just feel like it’s an incredible opportunity for making sure that all of us are feeling good in a way that allows us to support our community in the way that lawyers do. We are very important center, I feel like fabric, of the world. I feel like we are really the center of a lot of leadership in the world. I feel like we’re in this position to offer a lot, and for anyone that needs support through that process I just welcome people to reach out and connect.

Teresa: Thank you, Rudhir. It’s been really wonderful speaking with you learning more about what you’ve been doing. We’ve enjoyed seeing it and really are happy to be able to share it with our audience too. We will be in touch for sure. We’ll definitely have your resources available on the podcast.

Rudhir: All right. Fantastic. Thank you, Teresa. Talk soon.

Teresa: Thanks, Rudhir. You too. Bye-bye.

Rudhir: Bye.

 

 


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Protecting Privilege when Communicating with PR Consultants

In high-profile cases in 2001[1] and 2003,[2] federal courts recognized exceptions to the third-party waiver rule for privileged communications shared with public relations (PR) consultants. Since then, courts have repeatedly been tasked with determining the status of PR firms for purposes of asserted waivers of attorney-client privilege and deciding whether Kovel[3]or the third-party waiver exceptions recognized in In re Copper or In re Grand Jury Subpoenas apply. Recently, multiple courts have rendered decisions on whether a third-party PR consultant falls within the scope of the privilege by virtue of one of the exceptions. These decisions have demonstrated that, as of 2020, the standards for these doctrines remain fluid, if not illusive. By contrast, disclosure of attorney work product to third parties does not so readily waive protection. Below we review recent cases and offer best practices to maintain privilege and work-product protection.

Third-Party Waiver Exception Doctrines Applied to PR Firms

The attorney-client privilege protects communications made in confidence with counsel for the purpose of legal advice, but the privilege is waived if the communication is shared with a third party. Starting in 2001, courts applied two developing exceptions to the third-party waiver rule to PR firms. The court in In re Copper Market Antitrust Litigation[4] held that a PR firm was the functional equivalent of an employee such that the privilege was not waived when counsel shared communications with the firm.[5] In doing so, the court recognized that the PR firm was within the scope of privilege as defined by Upjohn Co. v. United States.[6] Two years later, the court in In re Grand Jury Subpoenas Dated March 24, 2003,[7] applied the Kovel[8]third-party waiver exception to retention of a PR firm and held that the communications of a grand jury target with that PR firm did not waive the privilege because counsel needed to engage in frank discussions of the facts and strategies.

Decisions Finding No Waiver

In NECA-IBEW Pension Trust Fund v. Precision Castparts Corp.,[9] the plaintiffs in a securities action moved to compel documents listed on the privilege log drafted by counsel for Precision Castparts Corp. (PCC) and shared with AMG, PCC’s PR firm, for comments. The defendant asserted that the documents were privileged, arguing that AMG was the functional equivalent of an employee such that disclosure did not constitute a waiver.[10] The court agreed:

AMG is the functional equivalent of an employee under Upjohn and Graff. PCC retained AMG in August 2014 to provide “public relations counsel and other strategic communications services.” AMG’s retainer was not a test run, as the relationship was established by the time Berkshire and PCC began talks in March 2015 and was apparently maintained throughout the acquisition. Under the terms of its engagement, AMG was required to “take instructions from [PCC] and . . . consult with other members of [PCC] management and with [PCC’s] legal and financial advisors as necessary, while PCC promised to “provide AMG with the information and resources necessary to carry out [PCC’s] instructions.”[11]

Significantly, in addition to serving as a functional equivalent of an employee, the court found that AMG was clearly receiving “legal advice from corporate counsel to guide its work for the company.”

In Stardock Systems v. Reiche,[12] a federal trademark action, Reiche’s counsel retained PR firm Singer to provide PR counseling. Reiche withheld communications between its counsel and Singer as privileged.[13] Citing In re Grand Subpoenas,[14] Reiche asserted that Singer had been retained to help present a balanced picture and that the withheld communications related to legal advice about the appropriate response to the lawsuit and making related public statements.

The court found that Reiche’s counsel hired Singer for the purposes of litigation strategy and that the communications between Singer and counsel pertained to “giving and receiving legal advice about the appropriate response to the lawsuit and making related public statements.”[15] The court cited specific examples of privilege log entries that all “relate[d] to Defendants’ counsel’s litigation strategy in dealing with the present suit.”[16] The court also held that the attorney work-product doctrine had not been waived because the work product shared was intended to be kept confidential.

Cases Where Courts Found Waiver

Other courts, however, have reached different conclusions. Following the premiere of “Blackfish,” a film critical of SeaWorld, SeaWorld and its counsel retained two “crisis” PR firms to work with counsel in developing a legal strategy, including considering potential litigation. In Anderson v. SeaWorld Parks & Entertainment, Inc.,[17] the PR firms produced documents regarding their work with SeaWorld, but SeaWorld redacted some documents and withheld others based on attorney-client privilege and attorney work product.

The court, relying on Behunin v. Superior Court, the only California decision addressing the issue as applied to PR firms,[18] held the standard of “reasonably necessary” had not been met:

[I]n order for disclosure to a third party to be “reasonably necessary” for an attorney’s purpose, and thus not to effect a waiver of privilege, it is not enough that the third party weighs in on legal strategy. Instead, the third party must facilitate communication between the attorney and client. Here, the evidence submitted and documents lodged for in camera review show at most that SeaWorld and its counsel sought advice from public relations firms to better predict the public reaction to legal activities and other efforts it considered in response to Blackfish, and to determine how best to present such activities to the public and other entities.[19]

The court rejected SeaWorld’s argument that its PR consultants were functionally equivalent to employees, stating that, even assuming that the remaining elements of the test were satisfied, “there is no evidence that any such consultant “possessed information possessed by no one else at the company,’” [20] one of the factors established by In re Bieter Company,[21] which established the functional equivalent doctrine in the Eighth Circuit.

However, the court held that disclosure of the attorneys’ work product to the PR firms had not waived work-product protection because there can be no waiver “unless it has substantially increased the opportunity for the adverse party to obtain the information.”[22]

In Universal Standard Inc. v. Target Corp.,[23] a trademark infringement and unfair competition case, Target sought to compel production of emails sent among Universal Standard, its attorneys and its PR firm, BrandLink, arguing that privilege had been waived. Universal argued that BrandLink was the functional equivalent of an employee, hired to serve as Universal’s “public relations arm” with independent decision-making authority. The court found no evidence of that, however; the only specific evidence was that BrandLink would monitor and respond to inquiries directed to a PR email address, duties unrelated to legal advice. Further, BrandLink had no independent authority to issue a press release — the email in dispute suggested the Universal overruled BrandLink’s recommendation.

Further, BrandLink did not work exclusively for Universal and provided services for more than a dozen other brands:

It is of no great significance that, as Universal Standard argues, BrandLink has “particular and unique expertise in the area of public relations, whereas Universal Standard does not.” Or that BrandLink “works closely with Universal Standard’s owners on a continuous basis regarding PR issues. To the contrary, the evidence presented by the parties “contradict[s] the picture of [BrandLink] as so fully integrated into the [Universal Standard] hierarchy as to be a de facto employee of [Universal Standard]”[24]

The court also rejected the assertion that the In re Grand Jury Subpoenas exception applied because there was no evidence that the purpose of the communications with BrandLink was to assist counsel in providing legal advice.[25]

Finally, the court in Pipeline Productions, Inc. v. Madison Cos.[26]reached a mixed result. In this case arising out of a failed music festival, the plaintiff moved to compel documents listed on the defendants’ privilege log that involved two third-party contractors — Suzanne Land, hired to negotiate related transactions, and Marcee Rondan, a PR consultant. The court found that Land was the functional equivalent of an employee, citing affidavits from the defendant:

Madison submitted a detailed factual record that establishes Ms. Land was an authorized representative for purposes of seeking and receiving the legal advice at issue. Mr. Gordon’s affidavit explains that he brought Ms. Land on board in the winter of 2014-2015 as his “right hand person” to oversee negotiating certain proposed business transactions, including the dealings with Pipeline that are the subject of this litigation. . . . He authorized and asked Ms. Land to communicate with counsel and other Madison representatives in order to obtain information needed or requested by Madison’s attorneys, he authorized Ms. Land to act in this capacity as Madison’s representative, and he relied upon her to do so.[27]

The court rejected the defendants’ argument that the purpose of communications with Rondan was to guide their counsel relating to PR issues with potential litigation:

These descriptions suggest only that the predominant purpose of the communications was to obtain public relations advice from Ms. Rondan and, even further afield, as they sought to set up a call about that advice. Although Madison argues counsel was included on all communications and that the communications would not have occurred “but for the fact that a lawsuit was filed,” these considerations are insufficient to show that Ms. Rondan provided any information to Madison’s attorneys to enable them to render legal advice or to provide legal services.[28]

Best Practices

While each case will turn on its facts, there are steps counsel can take to best ensure privileged and protected communications with PR firms retain their protection by making a clear record of what role the PR firm will play.

First, it should be counsel who engages a PR firm, and counsel should provide a clear, written description of the PR firm’s role in the litigation in their engagement letter. To the extent that an engagement expands beyond the initial scope, additional engagement letters should make clear what the PR firm’s role will be in each.

Not every communication with PR firms will involve the provision of legal advice and so companies should not try and overreach by copying counsel on routine communications. If a communication is to remain privileged, there must be a legal reason why the PR firm is involved. Communications designed to address nonlegal matters, like public perception, will not be deemed privileged. Privileged communications should only be shared with PR firms to the extent necessary, and only with PR consultants so integrated into the client’s business and structure that the consultant can be qualified as a functional equivalent of an employee.

When challenged, counsel should prepare affidavits that evidence the specific tasks assigned to the PR firm and why its involvement was necessary for the provision of legal advice. If establishing that the consultant is the functional equivalent of an employee, the affidavits should establish the PR firm’s integration into the company’s structure and routine interaction with counsel for legal advice.

Finally, regardless of whether a communication remains privileged, because attorney work-product protection is not so easily waived, counsel should demonstrate that disclosure did not make the information available to their adversaries.


[1] See In re Copper Mkt. Antitrust Litig., 200 F.R.D. 213 (S.D.N.Y. 2001), where the court held that the public relations firm was the functional equivalent of the corporation’s employee and, therefore, the attorney-client privilege was not waived when the corporation’s counsel shared communications with the public relations firm. In so holding, the court rejected the argument that third-party consultants came within the scope of the privilege only when acting as conduits or facilitators of attorney-client communications, the requirements of the original third-party waiver doctrine adopted in United States v. Kovel, 296 F.2d 918 (2nd Cir. 1961).

[2] In In re Grand Jury Subpoenas Dated March 24, 2003, 265 F. Supp. 2d 321 (S.D.N.Y. 2003), a target of a grand jury investigation hired a public relations firm to assist in influencing the outcome of the investigation. When subpoenaed by the government to produce documents and testify before the grand jury regarding communications with the target, the public relations firm asserted the attorney-client privilege on behalf of the target. The court upheld the privilege, recognizing the need for lawyers to be able to engage in frank discussion of facts and strategies with the lawyers’ public relations consultants.

[3]United States v. Kovel, 296 F.2d 918 (2nd Cir. 1961). The Second Circuit held that the privilege could extend to communications between a client and a nonattorney third party if “the communication [is] made in confidence for the purpose of obtaining legal advice from the lawyer.” Id. at 922. In applying this rule, the court found that the privilege could reasonably extend to an accountant assisting a law firm in an investigation into an alleged federal income tax violation.”

[4] 200 F.R.D. 213 (S.D.N.Y. 2001).

[5] Id. at 219-20 (citing In re Bieter, 16 F.3d 929 (1994) (privilege would apply to communications between independent consultants hired by the client and the client’s lawyers if those consultants were the functional equivalents of employees)).

[6]449 U.S. 383, 391 (1981) (Supreme Court rejected that only corporation’s high-level “control group” could communicate with attorneys without the privilege being waived and held that lower-level employees could be used as agents of the corporation when they had relevant information needed by corporate counsel to advise client).

[7] 265 F. Supp. 2d 321 (S.D.N.Y. 2003).

[8] United States v. Kovel, 296 F.2d 918 (2nd Cir. 1961).

[9] No. 3:16-cv-017756, 29019 U.S. Dist. LEXIS 168088 (D. Or. Sep. 27, 2019).

[10] Id. at *14-15 (“The Eighth Circuit . . . applied Upjohn to cover communications between corporate counsel and outside consultants” when the outside consultant “was in all relevant respects the functional equivalent of an employee.”) (citations omitted).

[11] Id. at *17-18, distinguishing Universal Standard Inc. v. Target, 331 F.R.D. 80 (S.D.N.Y. May 6, 2019).

[12] 2018 U.S. Dist. LEXIS 204438 (N.D. Cal. Nov. 30, 2018).

[13] Id. at *5.

[14] 265 F. Supp. 2d 321 (S.D.N.Y. 2003).

[15] Id. at *17.

[16] Id. at *17-18.

[17] 329 F.R.D 628 (N.D. Cal. 2019)

[18] 9 Cal. App. 5th 833, 215 Cal. Rptr. 3d 475 (App. 2d Dist. 2017) (court held Behunin had not proven the communications were reasonably necessary for counsel’s representation and determined the privilege had been waived).

[19] 329 F.R.D. at *634.

[20] Id.

[21] 16 F.3d 929 (8th Circ. 1994).

[22] Id. at *635-36.

[23] 331 F.R.D. 80 (S.D.N.Y. 2019).

[24] Id. at 90 (citations omitted).

[25] Id. at *91-92.

[26] No. 15-4890-KHV, 2019 U.S. DIST Lexis 71601 (D. Kan. Apr. 29, 2019).

[27] Id. at *3-4.

[28] Id. at *5-6.


Copyright © 2020 Pepper Hamilton LLP
For more on protecting privilege, see the National Law Review Law Office Management section.

What Is the CARES Act and How Can It Help Legal Professionals?

On March 27, Congress passed the 2020 Coronavirus Aid, Relief, and Economic Security Act (CARES) to mitigate the negative economic impact of COVID-19. The CARES Act provides small businesses and individuals with extended unemployment insurance benefits, loans for paycheck protection, refundable tax credit, and business tax provisions. Attorneys who own their own practice can take advantage of the 2020 CARES Act to protect their business and employees during the economic downturn brought on by COVID-19.

How the CARES Act Applies to Lawyers

The CARES Act could alleviate the negative economic impact of COVID-19 on your law firm while the entire world waits for what’s next.

The CARES Act helps law practices with:

  • Paycheck protection program (PPP): completely forgivable loan to cover payroll costs
  • Employee retention credit
  • 2020 Payroll tax deferment
  • Economic injury disaster loan emergency advance (EIDL)

Paycheck Protection Program (PPP) for Attorneys, Legal Administrators, and Staff

For more detail, please refer to the PPP FAQs published by the Treasury Department on Wednesday, April 8, 2020.

Coverage for Payroll Costs

  • Salary, wages, commissions, or tips
  • Employee benefits including costs for vacation, parental, family, medical, or sick leave
  • Allowance for separation or dismissal
  • Payments required for the provisions of group health care benefits including insurance premiums
  • Retirement benefits
  • State and local taxes assessed on compensation

For more detail, please refer to the Tax Foundation’s summary of the SBA Paycheck Protection Program in the CARES Act.

Coverage for Sole Proprietor or Independent Contractor

  • Wages, commissions, income or net earnings from self-employment, capped at $100,000 on an annualized basis for each employee
  • Extends duration of benefits from 26 weeks (available in most states) to 39 weeks
  • Provides an additional $600 per week in benefits for first four months

For more detail, please refer to the summary from the law firm Rudman Winchell.

Paycheck Protection Program (PPP) Loan Forgiveness

Applications are already in play. While there is a lot of money available, it is not unlimited. Apply as quickly as possible.

  • You use the money strictly for allowed expenses
  • 75% of the loan amount is spent on payroll costs
  • You maintain your entire full-time staff until June 30
  • Rehire fired or laid-off employees quickly
  • Caps payment at $100,000 per person
  • You do not cut employees wages more than 25% for any employee who made less than $100,000 in 2019
  • For whatever amount is not covered, PPP loans have a 1% interest rate and payments are deferred six months with interest during the deferment.  The loan must be fully repaid in two years.

For more detail, please refer to the Small Business Administration’s Docket No. SBA-2020-0015.

Employee Retention Credit

You may qualify for a refundable payroll tax credit for 50% of wages if:

  • your law practice was fully or partially suspended due to COVID-19 related shut-down orders.
  • you lost more than 50% in gross receipts compared to last year’s same-quarter performance.

Payroll Tax Deferment

To further lower expenses at your law firm, you may defer your share of payroll taxes and split the deferred payments over the next two years, with half due by Dec. 31, 2021, and the other half due by Dec. 31, 2022.

Economic Injury Disaster Loan Emergency Advance (EIDL)

If you are a sole proprietor, you may be eligible for a EIDL loan of up to $2 million, repayable over 30 years at 3.75% interest rates for small businesses and 2.75% for most private non-profits under the EIDL. Payments are deferred for the first year, but interest accrues during that time.

  • You’ll have to put up collateral for loans over $25,000 and a personal guarantee for loans exceeding $200,00.
  • If you qualify for an EIDL, you can use the money for any business expense (with a few exclusions).
  • Under the same provision, small business owners may be eligible for a one-time grant of up to $10,000 that you won’t have to pay back.

For more detail, please refer to the U.S. Small Business Administration’s “Economic Injury Disaster Loan Emergency Advance” overview page.

What Happens If You Enroll for PPP and EIDL?

If you decide to enroll for both the EIDL and PPP, the amount of the EIDL grant will be subtracted from the PPP amount eligible for forgiveness. In other words, you’ll ultimately wind up paying it back.

The 2020 CARES Act Can Help Your Law Firm

Law firms are uniquely poised to understand the full extent of the CARES Act and its protections. With the financial boost from the CARES Act, attorneys are more likely to retain talent and be ready to hit the ground running when court activity ramps up again.

CARES Act 2020 Resources

 

© Copyright 2020 PracticePanther
ARTICLE BY Reece Guida at PracticePanther.
For more on the CARES Act, see the National Law Review Coronavirus News section.