Category: law firm

6 Tips to Better Organization for Lawyers

Practicing law involves managing countless details and deadlines. For this reason, organization for lawyers can become a challenge for many lawyers in a high-paced law firm juggling various projects.

Without essential organization skills or resources to support the workload, it’s easy for information or tasks to innocently fall through the cracks. Adversely, this can leave lawyers feeling burnout or overwhelmed which could lead to a deterioration of quality of service, impacting overall client satisfaction.

Maintaining organization for lawyers is more than having pristine files and an uncluttered office — it includes critical skills like strategic planning, time management, and task prioritization.

Why Do Lawyers Struggle with Organization?

For years, lawyers were often depicted as busy professionals constantly shuffling through papers and running to the courthouse. Remote work and the rise in legal technology have certainly modernized a lawyer’s day-to-day activities, but that doesn’t mean those tasks are necessarily organized.

Lawyers have a lot to manage in a high-stress, high-performance environment. Often, this can lead to a system of organization that’s known only to the lawyer — billable hours written on sticky notes, case files interspersed with other papers, and deadlines tracked on a notepad. To avoid chaos, here are a few tips to have a more organized work life.

Organization for Lawyers: 6 Tips

Maintain an Organized Workspace

There’s no right or wrong way to set up an office or workspace, but it should work for you. That said, clutter can be a barrier to organization. Keep your desk tidy and free of clutter. Put away anything you’re not working on right now and gather loose documents and file them.

If your law firm relies on paper, consider the benefits of transitioning to a digital process. Lawyers have traditionally dealt with mass amounts of paper which can lead to disorganization and hinder productivity. Limiting the amount of paper you use in your day-to-day with a digital filing system will greatly improve the accessibility you have to the work you need.

Establish a Routine

While we all have the same amount of hours in the day, the way we use them directly impacts our productivity.

Highly productive people often start the day with a priority to-do list that reflects the tasks that absolutely must get done that day. The rest are tasks that you could do, if you have time, to get a jump on the next day’s work.

When you’re planning your routine, be sure to leave time to make calls and emails, take a break, and have lunch. Before signing off for the day, take a few minutes to create your priority to-do list for the next day.

Block Time

We’re more connected than ever before, which comes with the pressure to stay in touch with work colleagues, family, and friends at all times. Our devices can become a source of distraction instead of productivity at work.

This is where blocking time comes in handy. For some, using time blocks and a calendar is more effective than to-do lists. Use your calendar as a time-blocking tool and divide your day into different blocks of time, each with a specific task.

Improve Time Management

Lawyers often find themselves struggling to balance time spent on non-billable administrative tasks and their caseload.

Fortunately, legal project management tools can help with time management, time tracking, and overall organization, with project management features to manage your caseload along with time tracking and billing functionalities. The right platform allows you to separate time and expenses, add notes or related files, collaborate with colleagues, and set customizable notifications to ensure you’re focused on the highest-priority tasks.

Commit to Better Communication

One of the casualties of disorganization is a reduction in client satisfaction. This can be due to a decrease in the quality of service a lawyer provides because they’re so busy.

A simple way to combat this is by blocking time, but also leveraging modern technology to streamline your communication. Features like client portals are a way for clients to feel connected to your firm while also having on-demand access to the information they need.

Track Time in Real Time

When you’re shuffling between cases, it can be easy to lose track of your billable time. This is why it’s important to have resources that allow lawyers to work as they go without having to guess how many hours they spent on a client.

Neither overestimating nor underestimating billable hours is good for a law firm. If you overestimate your time, you could be in violation of the American Bar Association’s Rule 1.5 on billing and fees. If you underestimate your time, you’re leaving money on the table for valuable services you’ve provided to your client.

Tracking time in real-time is important for accuracy and your organization’s well-being. Time tracking tools allow you to set timers on your laptop, tablet, smartphone, or desktop.

Proper timekeeping not only helps you stay organized and bill accurately, but it helps you identify where you could improve your time management and productivity to get more accomplished in your day.

How Legal Technology Keeps Lawyers Organized

Law practice management software offers plenty of tools to help you stay organized. Time tracking, project management, and document management tools ensure you can organize files, plan your calendar and tasks, communicate with clients, and track time to improve your productivity from anywhere.

Organized Lawyers Are an Asset

Firms and clients realize the value of having modern processes to assist lawyers with staying on top of tasks and deadlines. It may not happen overnight, but taking steps toward better organization with tools like law practice management software will improve your efficiency and productivity.

This article was authored by Nina Lee of Bill4Time.

For more law office management news updates, click here to visit the National Law Review.

©2006-2022, BILL4TIME. ALL RIGHTS RESERVED.

The “Iron Curtain” has Fallen: A Radical Shift in Lawyers Representing Whistleblowers

Whistleblower Network News (WNN) recently revealed, for the first time, that major corporate law firms specializing in representing defendants before the U.S. Securities and Exchange Commission (SEC) have, in some cases, switched sides and are now representing whistleblowers who are turning in corporate fraudsters.  All but one of the firms identified by the SEC did not call public attention to their new-found client base – most likely because they did not want to upset their bread-and-butter corporate clients.  It appears that major corporate law firms now understand that the Dodd-Frank Act’s whistleblower reward provisions are incredibly effective in incentivizing corporate insiders to report fraud, even when those insiders are executives usually on the other side of a whistleblower issue.  Lawyers who traditionally represent whistleblowers understand that Dodd-Frank is well designed and is being professionally implemented by the SEC.  Corporate lawyers and their firms have apparently caught on to this new reality and are now representing whistleblowers.

That defense firms are now actively engaged in representing whistleblowers cannot be denied.  Lists of law firms that have prevailed in Dodd-Frank whistleblower cases, disclosed in response to Freedom of Information Act (FOIA) requests filed with the SEC, document that 9.3% of firms that have obtained rewards on behalf of whistleblowers were traditional defense firms.  These firms include some of the largest defense firms in the United States that represent numerous corporations subjected to SEC enforcement actions for violating securities laws as well as firms that have defended corporations against whistleblowers in retaliation cases.

If that statistic holds, it is clear hundreds of corporate defense firms or their attorneys are representing whistleblowers in confidential investigations.  Why are these cases still under review?  Dodd-Frank is still a young law, and the vast majority of cases have not yet resulted in formal reward determinations.  Cases often take five years or more to be finalized, and as of the end of Fiscal Year 2021 over 51,000 whistleblower cases had been filed with the SEC.  Furthermore, under the FOIA requests the SEC only released the names of law firms that prevailed in a whistleblower case.  The names of firms that did not prevail in a claim, or firms that represent whistleblowers in ongoing investigations, were not disclosed.

Time will tell whether defense firms’ representation of whistleblowers who accuse their employers (or other corporate wrongdoers) of fraud is a good or bad development.  But unique issues will arise whenever a firm that primarily generates its profits from representing corporations accused of wrongdoing switches sides and represents a whistleblower who has accused an executive of engaging in fraud.  Although such representations may be permitted under the attorney’s rules of ethics, this does not mean that such representations are always in the best interest of a lawyer’s clients.  There are inherent potential conflicts whenever a defense firm switches sides and decides to represent a whistleblower reporting major corporate crimes.

Regardless of where you stand on this issue, one thing is clear: the ethical, policy and legal implications of defense firms representing whistleblowers is a dramatic shift in legal practice and must be carefully evaluated.  Defense firms must understand that whenever they represent a whistleblower, they must zealously advocate on their behalf, even when the precedents set by their cases may be used against their corporate clients.  Likewise, whistleblowers need to be aware of the implications of choosing a lawyer whose primary practice is representing corporate crooks.  Conflicts of interest may not initially be visible but can unfold as a case progresses.

The Revelation

In August of 2022, Bloomberg Law and a draft non-peer-reviewed article published by University of Kansas Professor Alexander Platt raised the issue of which law firms represent whistleblowers.  Bloomberg and Platt obtained lists of law firms that prevailed in Dodd-Frank whistleblower cases.  They used the lists to identify a small number of firms, all of which could be classified as pro-whistleblower firms.  These firms’ practices are centered on fighting corporate fraud and speculated whether these firms were being given preferential treatment by the SEC. Neither publication offered proof of any wrongdoing.  But Platt and Bloomberg did not list all the law firms that prevailed in Dodd-Frank cases.  Significantly, neither even mentioned the fact that major defense law firms had already filed and won Dodd-Frank cases on behalf of whistleblowers.  Additionally, the two authors did not explore the special issues that could arise when firms dedicated to defending white-collar criminals quietly switch sides.

In response to Platt and Bloomberg, WNN filed its own Freedom of Information Act (FOIA) request to obtain access to the documents relied upon in the two articles.  The SEC released over 1000 pages of documents to WNN, including all its correspondence with Platt and all the records provided to Platt (and Bloomberg) that identified law firms that successfully represented whistleblowers.

On September 27, 2022, WNN revealed, for the first time, that the SEC had identified 64 law firms that successfully obtained a reward on behalf of a whistleblower.  Among those firms were six that primarily represent corporations and individuals accused of corporate crimes.  These defense firms included industry giants such as Winston & Strawn and Akin Gump.  Together, the defense firms have already obtained over $56 million in rewards on behalf of whistleblowers.  In response to the Platt, Bloomberg, and WNN FOIA requests, the SEC only identified firms that had already prevailed and obtained a reward on behalf of their clients. Approximately 50,000 cases are pending within the SEC’s reward program, and there is a long delay in processing whistleblower cases.  Therefore, one can assume that numerous other pending cases where these or other defense firms are actively representing whistleblowers that were not disclosed by the SEC.

It is important to note that the Dodd-Frank provisions only apply to large fraud cases.  No reward is available unless the SEC issues sanctions against the entity being investigated in excess of $1 million.  Thus, the cases previously targeted by the defense firms and currently under investigation by the SEC would implicate major frauds.

The defense firms identified by WNN as being listed in the SEC-released materials were:

Winston & Strawn, LLP:  Winston advertises itself as defending “companies and individuals in SEC enforcement and regulatory matters related to allegations involving securities fraud.”  But not mentioned on its webpage is that it also represented a securities law whistleblower who obtained a $2.2 million reward.

Akin Gump Strauss Hauer & Feld LLP: Akin Gump also describes its practice as representing “companies and individuals” under investigation by various regulatory agencies, including the SEC.  Akin’s attorneys obtained a Dodd-Frank reward of $800,000 award.

Haynes and Boone, LLP: This 600-lawyer defense firm’s website explained that it has “represented employers” in “whistle blowing.”  However, the SEC documents revealed the firm also represented a whistleblower who obtained a “20%” award against a corporate fraudster.

Levine Lee LLP:  Although this firm markets itself as successfully representing clients accused of violating anti-fraud laws, like the other defense firms, it has apparently started a whistleblower practice and obtained a reward of $10 million on behalf of a whistleblower.

Leader Berkon Colao & Silverstein LLP:  This defense firm prevailed in cases filed on behalf of two separate whistleblowers and had considerable success.  Their whistleblower clients obtained $15 million and $27 million in awards.

Sallah Astarita & Cox, LLC: Although this firm “regularly represents financial institutions” in “fraud” cases, the firm also represented a whistleblower who obtained a $1.8 million award.  Sallah Astarita was the only firm that listed its Dodd-Frank Act whistleblower case on its website as among the victories achieved by one of its partners.

The SEC’s Dodd-Frank Whistleblower Program

Professor Platt and Bloomberg Law criticized the SEC’s Dodd-Frank program as having a bias in favor of a small number of whistleblower-rights law firms that had employed former SEC lawyers.  However, the information revealed by WNN completely refuted this negative implication raised by Platt and Bloomberg.  Instead, the FOIA documents support a finding that the SEC program is a paradigm of fairness and openness.  The extensive correspondence between Platt and the SEC demonstrates that the Commission freely disclosed the names of the firms that had won cases while carefully balancing the confidentiality needs of the whistleblower clients.  These numbers illustrate a program open to law firms regardless of their reputation or whether they employ former government lawyers.  They also reveal a program open to working directly with whistleblowers and rewarding them even if they had no lawyer.  Not one document produced provided any evidence whatsoever of wrongdoing, bias, or unprofessionalism.  The numbers speak for themselves:

  • Over 50 pro se whistleblowers won cases on their own behalf.  This high percentage of unrepresented applicants who successfully navigated the SEC’s program is remarkable.  In other legal programs, pro se whistleblowers (and other unrepresented persons) lose the vast majority of their cases.  Not so under Dodd-Frank. This demonstrates a high level of commitment by the SEC to helping individual whistleblowers who could not afford or obtain lawyers.
  • Of the 64 law firms that prevailed in a Dodd-Frank reward claim, only 12 had hired former SEC lawyers to assist in the cases.  Thus, the vast majority of successful law firms (52 of the 64) had no “insider” connection to the SEC.   This fact demonstrates the Commission’s staff’s willingness to work closely with attorneys who had no “friends” in the agency and whose information was solely merit-based. Moreover, a significant percentage of the firms that did employ former SEC or Justice Department lawyers were the very defense firms that Bloomberg Law and Platt did not discuss or analyze.
  • The Commission’s staff demonstrated no bias against firms based on their practice areas.  The Commission’s enforcement staff and Whistleblower Office worked with law firms that were defense-based (6) and law firms that traditionally represent whistleblowers or employees in lawsuits against companies (many of the remaining 58).

The FOIA documents support a finding that the Commission’s staff is open to whistleblowers, regardless of whether they represent themselves or whether or not the firms raising the concerns have any “insider” connections.   Organizations such as the National Whistleblower Center, which regularly works with whistleblowers, have widely praised the program, as have the last three Chairs of the SEC, appointed by Presidents Obama, Trump, and Biden.  The Commission itself confirmed that as of September 2021, it returned over $1.3 billion to harmed investors based on whistleblower cases.

The Future Role of Defense Firms in Dodd-Frank Cases

The SEC cannot implement special rules that would be prejudicial to traditional defense firms that file whistleblower cases.   Likewise, whistleblowers have the right to hire counsel of their choice and, in most cases, can knowingly waive potential conflicts of interest.  But the mere fact that traditional defense firms can lawfully represent whistleblowers without violating any SEC or local Bar rules does not address the special problems that may exist when a defense firm represents a whistleblower.  For example, such representations can result in significant conflicts of interest that may not be apparent at the commencement of a case. This may result in the whistleblower’s attorneys not advocating for legal precedents that could harm their other corporate clients.

Traditional defense firms should implement internal procedures to guard against potential problems based on the obvious conflicts that can arise when they represent clients on both sides of whistleblower-disclosure cases.  More significantly, it is absolutely crucial that whistleblowers fully understand the potential for conflicts of interest when deciding on the best attorneys to hire.  Attorneys working for defense firms must clearly spell out these issues and ensure that when representing a whistleblower, their prospective client is fully aware of all the risks and limitations.

Among the rules, procedures, and practices that defense firms should implement or carefully consider are:

  1. At the very least, defense firms representing whistleblowers should identify this on their websites.  Corporate clients should know that the firm also represents whistleblowers and should be able to question counsel on these matters so they feel comfortable that no conflicts would arise.
  2. Whistleblower clients need full disclosure of how the defense firm’s primary practice may impact the representation.  This is particularly true whenever a case would require advocacy on behalf of a whistleblower that could expand legal interpretations benefiting whistleblowers.  It is hard to reconcile how a law firm defending some clients against whistleblowers can effectively argue before administrative agencies or courts of law legal precedents that could expand the rights of whistleblowers.  These expanded rights could and would ultimately not be to the advantage of corporate clients accused of wrongdoing.
  3. Similarly, defense firms need to reconcile how they can advocate for a whistleblower who engaged in tactics, such as removing documents or one-party tape recording, that their corporate clients may find offensive.  This is particularly true when the zealous representation of a whistleblower requires expanding the ability of whistleblowers to obtain evidence of wrongdoing, and the precedent this advocacy establishes may be used against the firm’s current or future corporate clients.
  4. The potential for a conflict of interest needs to be fully explored in every case.  One issue that firms and clients may not be fully aware of is how the “related action” provisions of the laws impact potential conflicts.  Once the SEC obtains a sanction of over $1 million in any case, all “related actions” become eligible for a reward.  Sanctions issued by other law enforcement or regulatory agencies based on “related” claims can form the basis of a reward.   When examining whether a conflict exists, law firms need to look beyond the SEC action and determine witnesses, parties, and issues that may be implicated in a “related action.” This determination is critical even if the related action is not based on any securities law violation.
  5. Defense firms can also explore ways to refer potential whistleblower clients to attorneys whose practices are based solely on representing whistleblowers.  These referrals would help ensure that the defense firm is not conflicted (either as a matter of ethics or marketing) and that the client can obtain the best counsel.

Conclusion: The Iron Curtain has Fallen

Whistleblower representation is entering a new world.  The “iron curtain” that formerly separated law firms that represent corporate crooks from those that represent whistleblowers has fallen. This new reality is not without serious risks to whistleblowers (and corporate clients).  Whistleblowers must be fully aware of the dangers of having a corporate law firm represent them.  Corporate law firms must institute procedures to guard against conflicts of interest and to ensure they can zealously represent whistleblowers.  Zealous representation is needed even when the precedents established in these cases may create trouble for their other client base.

At the end of the day, the fact that defense law firms are now representing whistleblowers affirms the success of Dodd-Frank.  It is an affirmation of the critical nature of the information whistleblowers provide to the government and the role of this insider information in stopping otherwise hard to detect corporate crimes.  The “iron curtain” has fallen, but it has fallen in the direction that helps whistleblowers.  It has fallen in the direction that affirms the quality of their disclosures. It refutes the often-repeated slander that whistleblowers are somehow simply disgruntled employees.

Whistleblowers are essential to ensuring fairness in the markets, holding wrongdoers accountable, and deterring future wrongdoing.  The SEC has publicly recognized this, and now leading corporate defense attorneys have quietly recognized it. Defense firms like Akin Gump, Winston and Strawn, and Hayes and Boone got it right when they advocated for paying whistleblowers substantial rewards.  Whistleblowers whose information holds corporate criminals accountable deserve large rewards. These rewards are in the public interest, and the SEC Dodd-Frank whistleblower program must be protected, enhanced and expanded.

Sources:

  1. Whistleblower Network News, “WNN Exclusive: SEC FOIA Documents Reveal Big Law Defense Firms are Confidentially Representing Dodd-Frank Whistleblowers,” (September 27, 2022)
  2. List of Law Firms that Obtained Rewards in Whistleblower Cases as of 2021
  3. List of Awards Obtained by the Six Defense Law Firms
  4. List of pro se Cases where Whistleblowers Obtained a Reward
  5. FAQ on the SEC’s Dodd-Frank Act program
  6. FAQ on Confidentiality of Dodd-Frank Act claims

Article By Stephen M. Kohn of Kohn, Kohn & Colapinto

For more criminal law and business crimes legal news, click here to visit the National Law Review.

Copyright Kohn, Kohn & Colapinto, LLP 2022. All Rights Reserved.

An Investment Worth Making: How Structural Changes to the EB-5 Program Can Ensure Real Estate Developers Build a Good Foundation for Their Capital Projects

The United States has made major changes to the rules governing its EB-5 program through the enactment of the EB-5 Reform and Integrity Act of 2022 (RIA). The RIA was a component of H.R. 2471—the Consolidated Appropriations Act, 2022—which President Biden signed into law on March 15, 2022. And while the RIA made many sweeping changes to the EB-5 landscape, including establishing an EB-5 Integrity Fund comprised of annual funds collected from regional centers to support auditing and fraud detection operations, two changes in particular are pertinent to developers funding capital investments. First, the RIA altered how developers calculate EB-5 job creation. Second, the RIA prioritizes the processing and adjudication of EB-5 investment in rural area projects, and it tweaked the incentives for high unemployment area and infrastructure projects. Paying careful attention to each of these two areas will enable developers to maximize the benefits afforded to it through the changes enacted by the RIA.

THE RIA MODIFIES JOB CREATION CALCULATIONS

New commercial enterprises under the EB-5 program must create full-time employment for no fewer than 10 United States citizens, United States nationals, or foreign nationals who are either permanent residents or otherwise lawfully authorized for employment in the United States. The RIA made three major changes to how regional centers measure job creation to meet this 10-employee threshold:

  • First, the RIA permits indirect job creation to account for only up to 90% of the initial job creation requirement. For example, if a developer invests in a small retail-residential complex that will eventually create 30 new jobs with the retail stores that will move into the shopping spaces, the developer could count only nine of those jobs toward the 10-employee threshold.
  • Second, the RIA permits jobs created by construction activity lasting less than two years to account for only up to 75% of the initial job creation requirement. The RIA does allow for these jobs to count for direct job creation, however, by multiplying the total number of jobs estimated to be created by the fraction of the two-year period the construction activity will last. For example, if construction on the small retail-residential complex will last only one year and create 100 new jobs, then the RIA would calculate 50 new jobs (100 total jobs multiplied by one-half (one year of a two-year period)) but the developer could count only 7.5 of those 50 jobs toward the 10-employee threshold.
  • Third, while prospective tenants occupying commercial real estate created or improved by the capital investments can count toward the job creation requirement, jobs that are already in existence but have been relocated do not. Therefore, if a restaurant is opening a new location in the small retail-residential complex, the developer could count toward those new jobs toward the job creation requirement. If the restaurant is just moving out of its current location into a space in the retail-residential complex, however, the developer could not count those jobs toward the job creation requirement.

THE RIA CREATES NEW EB-5 VISAS RESERVED FOR TARGETED EMPLOYMENT AREAS AND INFRASTRUCTURE PROJECTS

Under the previous regime, the U.S. government would set aside a minimum of 3,000 EB-5 visas for qualified immigrants who invested in targeted employment areas, which encompassed both rural areas and areas that experienced high unemployment. Now, the RIA requires the U.S. government to set aside 20% of the total number of available visas for qualified immigrants who invest in rural areas, another 10% for qualified immigrants who invest in high unemployment areas, and 2% for qualified immigrants who invest in infrastructure projects. Therefore, at a minimum, the RIA reserves nearly a third of all total EB-5 visas issued by the U.S. government for rural projects, high unemployment area projects, and infrastructure projects. Furthermore, and most significantly, the RIA provides that any of these reserved visas that are unused in the fiscal year will remain available in these categories for the next fiscal year.
The changes to the reserved visa structure create significant incentives for qualified immigrants to invest in rural, high unemployment area, and infrastructure projects. If, for example, the United States government calculates that it should issue 10,000 visas in Fiscal Year 1, then the RIA mandates reserving 2,000 visas for rural projects (20% of total), 1,000 for high unemployment area projects (10% of total), and 200 for infrastructure projects (2% of total). These numbers are significant when considering the RIA’s roll-over provision because it pushes projects in these categories to the front of the line for the green card process. If only 500 of the 20,000 visas for rural projects are used in Fiscal Year 1, then the 1,500 unused visas set aside for rural projects roll over to the next fiscal year. Therefore, if the United States government issues 10,000 new visas in Fiscal Year 2, then 3,500 visas will be reserved for rural projects in the new fiscal year (the 1,500 rollover visas from the previous year plus a new 20% of the total number of visas per the RIA), and the high unemployment area and infrastructure project reserved visas would have a new 1,000 (10% of total) and 200 (2% of total) visas in reserve, respectively.

The RIA changed the structures for investing in both targeted employment areas and non-targeted employment areas, however. The RIA raised the minimum investment amount for a targeted employment area by over 50%, increasing the sum from its previous level of US$500,000 to its new level of US$800,000. The RIA similarly raised the non-TEA, standard minimum investment amount from its previous level of US$1 million to now be US$1.05 million.  Additionally, the RIA modified the process for the creation of targeted employment areas: While under the previous regime, the state in which the targeted employment area would be located could send a letter in support of efforts to designate a targeted employment area, the post-RIA EB-5 regime now permits only U.S. Citizenship and Immigration Services to designate targeted employment areas.

IMPLICATIONS AND RECOMMENDATIONS

The new developments resulting from the RIA will have tangible effects on developers seeking to fund new capital investments. The percentages caps imposed on indirect job creation, relocated jobs, and other categories toward the job creation requirement will likely lengthen the amount of time spent on project creation and completion. These changes also likely should incentivize developers to focus their job creation metrics toward directly created jobs rather than through indirectly created ones. While these changes might increase the length of projects, the broadening of visa reserves through both the percentage caps and the creation of the rollover provisions will likely increase the number of projects in rural areas and high unemployment areas. Developers should carefully consider the composition of their job creation goals and calculate workforce sizes in line with these new requirements. Additionally, developers seeking to ensure they are able to succeed in obtaining visas for their desired employees by avoiding the typical backlog of visa applicants through the EB-5 program should consider investing in rural and high unemployment area projects to take advantage of the broadened application pool.

Article By Brian Graham, Adriana Reyes, and Gregory T. Lewis of K&L Gates

For more immigration legal news, click here to visit the National Law Review.

Copyright 2022 K & L Gates

NYC Issues Proposed Rules for Its Automated Employment Decision Tools Law

On Friday, September 23, 2022, the New York City Department of Consumer and Worker Protection (“DCWP”) released a Notice of Public Hearing and Opportunity to Comment on Proposed Rules related to its Automated Employment Decision Tool law (the “AEDT Law”), which goes into effect on January 1, 2023. As we previously wrote, the City passed the AEDT Law to regulate employers’ use of automated employment decision tools, with the aim of curbing bias in hiring and promotions; as written, however, it contains many ambiguities, which has left covered employers with open questions about compliance.

The proposed rules are intended to clarify the requirements for the use of automated employment decision tools within New York City, the definitions of key terms in the AEDT law, the notices to employees and applicants regarding the use of the tool, the bias audit for the tool, and the required published results of the bias audit.

The DCWP’s public hearing on the proposed rules and deadline for comments are October 24, 2022. Although the proposed rules may be modified prior to adoption, the following summarizes the key provisions.

“Substantially assist or replace discretionary decision making”

The AEDT Law applies to an automated decision tool that is used “to substantially assist or replace discretionary decision making.” It does not, however, specify the type of activities that constitute such conduct or what particular AI-powered employment tools are covered by the law.

The proposed rules attempt to provide guidance on this issue by defining “substantially assist or replace discretionary decision-making” as one of the following actions:

  1. relying solely on a simplified output (score, tag, classification, ranking, etc.), without considering other factors; or
  2. using a simplified output as one of a set of criteria where the output is weighted more than any other criterion in the set; or
  3. using a simplified output to overrule or modify conclusions derived from other factors including human decision-making.

“Bias Audit”

Pursuant to the AEDT Law, before using an automated employment decision tool, a covered employer or employment agency must subject the tool to a “bias audit” no more than one year prior to the use of the of the tool.  The law explains that “bias audit” means an “impartial evaluation by an independent auditor,” but does not otherwise specify who or what constitutes an “independent auditor” or what the “bias audit” must contain. The proposed rules address these gaps.

First, the proposed rules define “independent auditor” as “a person or group that is not involved in using or developing an [automated employment decision tool] that is responsible for conducting a bias audit of such [tool].” This definition does not specify that the auditor must be a separate legal entity from the creator or vendor of the tool and therefore suggests that it may be acceptable for the auditor to be employed by the organization using the tool, provided the auditor does not use and has not been involved in developing the tool.

Second, the proposed rules state that the required contents of a “bias audit” will depend on how the employer or employment agency uses the tool.

If the tool selects individuals to move forward in the hiring process or classifies individuals into groups, the “bias audit,” at a minimum, would need to:

  1. calculate the selection rate for each category;
  2. calculate the impact ratio for each category; and
  3. where the tool classifies candidates into groups, the bias audit must calculate the selection rate and impact ratio for each classification.

If the automated employment decision tool merely scores candidates, the “bias audit” at a minimum, would need to:

  1. calculate the average score for individuals in each category; and
  2. calculate the impact ratio for each category.

The preamble to the proposed rules makes clear that DCWP intends these calculations to be consistent with the Uniform Guidelines on Employee Selection Procedures (“UGESP”), 29 C.F.R. § 1607.4, and borrows concepts from the framework established by the UGESP in the definitions of “impact ratio” and “selection rate.”

Under the AEDT Law, upon completion of a bias audit, and prior to using the automated employment decision tool, covered employers and employment agencies must make the date and summary of the results of the bias audit publicly available on the careers or job section of their website in a clear and conspicuous manner. The proposed rules clarify that publication may be made via an active hyperlink to a website containing the required information, as long as the link is clearly identified as linking to the results of the bias audit. The required information must remain posted for at least six months after the covered employer or employment agency uses the tool for an employment decision.

Required Notices

The AEDT Law also specifies that employers and employment agencies must notify candidates for employment and employees who reside in New York City as follows:

  1. at least ten business days prior to using an automated decision tool, that such a tool will be used to assess or evaluate the candidate or employee, and allow the individual to request an alternative selection process or accommodation;
  2. at least ten business days prior to use, the job qualifications and characteristics that the tool will use in the assessment or evaluation; and
  3. if not disclosed on the employer or employment agency’s website, information about the type of data collected for the tool, the source of such data, and the employer or employment agency’s data retention policy shall be available upon written request by the individual and be provided within thirty days of the written request.

Covered employers and employment agencies have expressed concern about the practical and administrative difficulties of providing the above notices in the fast-paced environment of today’s recruiting and hiring.

In apparent response to these concerns, the proposed rules clarify that the employer or employment agency may provide the notices required by paragraphs (1) and (2) by:

  1. (a) in the case of candidates, including notice on the careers or jobs section of its website at least ten business days prior to the use of the tool, and (b) in the case of employees, including notice in a written policy or procedure that is provided to employees at least ten business days prior to use;
  2. including notice in a job posting at least ten days prior to using the tool; or
  3. (a) in the case of candidates, providing notice via U.S. mail or email at least ten business days prior to use of the tool; and (b) in the case of employees, providing written notice in person, via U.S. mail, or email at least ten business days prior to use.

In short, under the proposed rule, an employer or employment agency could comply with the AEDT Law by providing the required notice when first posting the job.

With respect to the notice requirement in paragraph (3), the proposed rules state that an employer or employment agency must provide notice to covered individuals by including notice on the careers or jobs section of its website, or by providing written notice in person, via U.S. mail, or by email within 30 days of receipt of a written request for such information. If notice is not posted on the website, the employer or agency must post instructions for how to make a written request for such information on its careers or job section of the website.

Finally, although the AEDT Law requires an employer or employment agency to allow covered individuals to request an alternative selection process, the proposed rules state that nothing requires an employer or employment agency to provide an alternative selection process.

Article By Adam S. Forman, Nathaniel M. Glasser, Robert J. O’Hara, Alexander J. Franchilli, and Ridhi D. Madia of Epstein Becker & Green, P.C.

For more labor and employment legal news, click here to visit the National Law Review.

©2022 Epstein Becker & Green, P.C. All rights reserved.

How to Use Images and Blogs to Boost Your Google My Business Profile

Whether you are wondering if you should create a listing for your business or searching for the most effective ways to boost your local presence, Google My Business is a wise investment of time. Not convinced yet? Consider the following statistics:

  • 97 percent of people learn more about a local company online than through any other source
  • Over 90 percent of the search engine market share belongs to Google
  • According to Google, 46 percent of all searches have local intent
  • 64 percent of consumers have used Google My Business to find contact details for a local business

Listing your law firm on Google is a significant step towards a complete online presence, but it doesn’t stop there. For instance, you should update your Google My Business Profile every month or so. While this profile isn’t a social media profile, it still requires the same amount of cultivation.

The Benefit of Adding Pictures

There are a few more ways you can leverage your profile to your advantage.  One of these ways is to use images to help boost your profile. For example, using photos on your Google Business Profile is beneficial not just for aesthetics but also to provide your law firm with an SEO advantage.

According to Google, businesses that use pictures on their Business Profiles see 42 percent more direction requests on Google Maps and 35 percent more clicks through to their websites than those who don’t use them. In fact, after a 2020 experiment, DigitalMaas came to the same conclusions. There’s no denying that law firms and attorneys who regularly upload photos on their listings will get more clicks and appear more on search results than their competitors who don’t.

When adding pictures, ensure you:

  • Add photos promptly. Without pictures, Google will default to showing street views which can make potential clients doubt if you are still in business.
  • Add photos regularly, including different shots and angles, taken at various times of the day.
  • Use quality photos without over-editing them. You want them to be clear but not filtered.
  • Use categories when adding pictures. Having a minimum of three relevant photos for each category is recommended.
  • Stay relevant to your location—avoid using screenshots, stock photos, GIFs, and other manually created images.

The Benefit of Blogs

Blogs are an essential piece of SEO marketing. If your firm doesn’t already publish one, now is the time. In addition to publishing your blog on your website, make sure you take its URL along with the picture and create a post from your Google My Business Account. Google will recognize your blog under your profile, and you will start to rank higher in SEO. When you add your blog to your Google Business Profile, you essentially double the benefit of having a blog without doubling the work. Linking a blog to your profile shows your authority in the legal realm and that you remain active online.

Don’t Forget Reviews!

Another key piece of optimizing your Google My Business profile is adding reviews. Google knows that reviews are the primary influence on consumer behavior, so they are a crucial ranking factor in the algorithm. However, you can’t add reviews if you don’t have any. Getting more reviews can be simple if you follow these tips:

  • Start with your long-time, loyal clients.
  • Make leaving a review as simple as possible by creating a review shortcut link or using a shortcut link generator.
  • Add a “Reviews” page on your website with a call to action to leave one.
  • Don’t forget to ask for reviews by email, text, social media, and in-person conversations.
  • Let clients know that reviews help others in similar situations to find a solution and make informed decisions.
  • Respond to reviews as this will incentivize clients to leave theirs and improves your local SEO.

Article By Meranda M. Vieyra of Denver Legal Marketing

For more business of law legal news, click here to visit the National Law Review.
© 2022 Denver Legal Marketing LLC

September 2022 Legal Industry News and Updates: Law Firm Growth and Expansion, Industry Recognition, and Spotlights on Women in Law

Happy autumn from the National Law Review! As the seasons change, we hope you are having a safe and healthy year. Please read on for the latest news coverage in the legal field, including law firm hiring and expansion, industry awards and recognition, and continued updates on women in law.

In addition, please be sure to check out Episode 4 of the Legal News Reach podcast: “The Perfect Storm: Law Firm Marketing & Business Development Budgeting with Beth Cuzzone, Global Practice Leader of Intapp.”

Law Firm Hiring and Expansion

Shumaker, Loop & Kendrick, LLP has named two new attorneys to lead their growing Public Sector practice group: partner Andy Mayts will serve as the chair of the group, and partner Patrick Duggan will serve as co-chair. Mr. Matts focuses his practice on banking, finance, and construction-related litigation. He handles complex civil litigation for many clients, including large businesses, national banks, and other financial institutions. Mr. Duggan practices employment law and litigation in complex workplace public sector and business disputes, with a specific focus on the Americans with Disabilities Act, the Fair Labor Standards Act, and other prominent legislation.

“It will take unique thinking and creativity to help governmental and public entities meet the growing needs of our communities,” said Shumaker Management Committee Vice Chair Jennifer Compton. “Andy and Patrick are top-performers and ready to meet this demand. With their leadership, we are confident that Shumaker’s Public Sector Practice will have continued growth and success.”

Stephanie J. Blumstein has joined law firm A.Y. Strauss as a partner in the Franchise practice group. Ms. Blumstein has a great deal of franchise litigation experience, including matters related to breach of contract, trademark infringement, fraud claims, business competition, and lease negotiations. She has assisted prospective franchisees as well as veteran franchise owners on all types of issues. Ms. Blumstein was also recognized in the 2023 edition of The Best Lawyers in America.

“I am thrilled to welcome Stephanie to the team,” said Marisa Rauchway, chair of the firm’s Franchise Group. “As a veteran of the national franchise community, her broad legal talents and deep industry knowledge will add immediate value to both existing and future clients of our practice.”

Michael Best added Dan Forest, former Lieutenant Governor of North Carolina, as a senior advisor in the firm’s Raleigh office. Joining the Government Relations practice group, Mr. Forest assists Michael Best Strategies with developing a strong bipartisan team of professionals who are focused on serving clients with public affairs and government relations needs. In his former role as Lieutenant Governor, Mr. Forest also served as President of the North Carolina Senate, Chairman of the Energy Policy Council, and Chairman of the Digital Technology Committee as a member of the State Board of Education.

“We’re excited to add Dan to our leadership team in North Carolina,” said Andy Jones, North Carolina Managing Partner for Michael Best & Friedrich, LLP. “Dan’s record of service and deep network across the State will help us continue to build our entrepreneurial-minded team of professionals and round out our ability to provide full-service solutions to our clients.”

BakerHostetler added Lisa Houssiere as a member of the firm’s Litigation Practice Group and Energy Industry team in their Houston office.  Ms. Houssiere has extensive experience in international disputes and investigations, particularly in the energy sector, and has worked on several high-profile Foreign Corrupt Practices Act cases and advised clients under investigation by the U.S. Department of Justice, the Federal Bureau of Investigation, the Commodity Futures Trading Commission and the European Commission.

Commenting on Ms. Housssiere’s addition to the firm, W. Ray Whitman, chair of BakerHostetler’s national Litigation Practice Group, stated. “Her range of trial work, including complex energy, antitrust and intellectual property matters, brings additional depth to our internationally recognized litigation practice.”

Venable LLP expanded its Product Liability and Mass Torts team in the Chicago and Los Angeles with the addition of partner John Roberts (Chicago) and partner Karen Firstenberg (Los Angeles). Mr. Roberts assists clients in the areas of product liability, commercial litigation, insurance recovery, and regulatory compliance, with much experience serving as national litigation counsel for a variety of clients. Mrs. Firstenberg provides counsel to life sciences companies on compliance, toxic torts, and product liability, representing clients in all fields, including medical devices, materials science, biotech, and pharmaceuticals.

“We are thrilled to welcome John and Karen to Venable and to our product liability team. Their addition will not only diversify our practice, but further solidify our presence in Los Angeles and expand it to Chicago, a long-standing life sciences hub and the home of some of our most valued clients. John and Karen’s success in the courtroom also deepens our bench of proven products trial lawyers,” said Kathleen Hardway, a co-chair of Venable’s Product Liability and Mass Torts Group.

Industry Awards and Recognition

Steve Adamczyk, partner at Varnum LLP, has been named to the 2022 Gulfshore Business 40 Under 40. This magazine seeks to recognize young legal professionals in the Southwestern region of Florida who have aided the area through volunteer work and philanthropy. Mr. Adamczyk has served on the board of the Florida Southern Gulf Coast to Heartland Chapter of the American Red Cross since 2015. He has also supported local elected officials and long-term recovery efforts in the wake of Hurricane Irma.

Mr. Adamczyk has a great deal of experience in estate and trust planning services. At Varnum, he broadly focuses his practice on residential and commercial real estate transactions, as well as community association representation, providing counsel and assistance for condominium and homeowners associations across the state of Florida.

Katten Muchin Rosenman LLP was recognized at the 2022 HFM US Services Awards ceremony as the best onshore law firm for hedge fund client services in the United States. Recipients were chosen by a panel of leading hedge fund chief operating officers, as well as chief financial officers and general counsels. Wendy Cohen and Allison Yacker, co-chairs of the firm’s Investment Management and Funds practice, accepted the award on behalf of the firm.

Lance Zinman, Global Chairman of Katten‘s Financial Markets and Funds group, said the following of the award: “Receiving this distinction underscores what clients and others have told us they appreciate about Katten: That we provide excellent and sophisticated counsel in a business-savvy manner that takes into account the practical aspects of our clients’ business; that we analyze complex market and legal issues and close investments and transactions, navigating regulatory issues quickly and comprehensively; and that we quickly see the big picture, to name just some of what we hear.”

Lawmatics, a leading legal client relationship management platform, was named a “Hot Product” in the 2022 TechnoLawyer Buyer’s Guide. TechnoLawyer continues to report on the latest developments in legal technology and law office management; the publication cited Lawmatics’ versatile automation capabilities as a particularly significant feature that set the platform apart.

“We’re extremely proud to be identified as a premier tool for helping law firms grow,” said Matt Spiegel, CEO of Lawmatics. “Our software empowers law firms to spend less of their time on administering the business of their practice, and more time focusing on the clients they serve. We know that firms thrive when they can prioritize people rather than paperwork.”

Thomas F. Zych, co-chair of Thompson Hine’s Antitrust, Competition & Distribution and Emerging Technologies practices, and Privacy & Cybersecurity team, has been selected to chair the American Bar Association’s Antitrust Law Section, through August 2023.

Based in Cleveland, Mr. Zych has over 39 years of experience in a wide range of data protection, intellectual property, consumer protection, social media, competition and antitrust matters. He also represents a full range of business enterprises in their privacy and data security operations.

Los Angeles Business Journal’s 2022 “Most Admired Law Firms” list added Sidley, as one of the most distinguished and “best law firms to work for” in the Los Angeles area. The Los Angeles Business Journal’s list recognizes law firms who are working toward creating diverse, positive, and supportive professional environments.

Of note is the 2022 launch of Sidley’s “Built to Lead,” program designed to help the firm’s associates by equipping them with greater business acumen by partnering with top business schools and helping young lawyers grow their leadership capabilities by partnering with select nonprofit legal and community organizations.

Women in Law

Foley and Lardner Partner Natasha Allen has been recognized on The Recorder’s California Legal Awards “Women Leaders in Tech Law” list. A co-chair of Foley’s Venture Capital Committee and Innovative Technology Sector Artificial Intelligence Section, Ms. Allen guides domestic and international corporations through mergers, acquisitions, and divestitures, with a special focus on cybersecurity, software, and virtual reality firms.

The California Legal Awards celebrate legal innovators who are influential in the ongoing development of technological jurisprudence. Allen and her peers will be celebrated at an awards ceremony on November 3, 2022.

Paula Cozzi Goedert, a leading nonprofit attorney with Barnes and Thornburg specializing in tax, compliance, and strategy, has been recognized on Crain’s Chicago Business 2022 “Notable Women in Law” list. Crain’s annual list illustrates the power of women in law by showcasing leaders with compelling professional stories.

Ms. Goedert chairs Barnes and Thornburg’s Associations and Foundations Group and has served over 300 clients, including the National PTA, American College of Surgeons, American Library Association, and Bank Administration Institute. Goedert’s expertise was invaluable during the COVID-19 crisis, where she guided her clients through challenges including staff furloughs, endowment raids, and insurance claims.

Additionally, Perkins Coie Partners Gina LaMonica and Lucy Park, were included on the 2022 Chicago Business Notable Women in Law list, whose requirements include mentoring other women lawyers, promoting inclusive practices in the workplace, and assuming a leadership role in professional organizations and civic and community service initiatives.

Ms. LaMonica practices white-collar criminal defense and is regularly retained to conduct internal investigations involving employee misconduct, regulatory violations, financial fraud, and is co-chair of Perkins Coie’s Educational Institutions & Services industry group and a co-founder and current secretary of the Chicago chapter of the national Women’s White Collar Defense Association.

Ms. Park  a partner in Perkins Coie’s Trust & Estate Planning group, counsels high-net-worth individuals, families, and family-owned businesses on wealth preservation and transfer, charitable giving, and succession planning and is a member of the firm’s Executive Committee, Strategic Diversity Committee,  and co-chair of the firm’s Women’s Forum, a  resource group, which works to attract, retain, and promote and support the firm’s female lawyers.

Former White House Administrator Sharon McGowan is adding her anti-discrimination background to her new role as partner at nationally-recognized civil rights law firm Katz Banks Kumin. Ms. McGowan has previously worked as Chief Strategy Officer and Legal Director for the Lambda Legal Defense and Education Fund, staff attorney with the ACLU’s LGBT and AIDS projects, and lead attorney for seminal trans workplace antidiscrimination case Schroer v. Billington. During Obama’s administration, Ms. McGowan worked toward ending various forms of discrimination as Principal Deputy Chief at the U.S. Department of Justice’s Civil Rights Division and Acting General Counsel and Deputy General Counsel for Policy at the U.S. Office of Personnel Management.

“Sharon is a brilliant legal advocate who has played an unparalleled role in securing some of our nation’s greatest achievements in civil rights,” said firm Co-Founding Partner Lisa J. Banks. “Her unique perspective and wide range of counseling experience will be a tremendous asset to our clients in the areas of whistleblower law, employment law, sexual harassment law, and civil rights and civil liberties matters.”

Firm Co-Founding Partner Debra S. Katz added: “Sharon’s experience as one of President Obama’s top anti-discrimination attorneys, as well as her deep level of public policy and advocacy expertise, will be invaluable to our clients and the firm’s ongoing efforts to advance civil rights in the workplace.”

Article By Chandler Ford, Crissonna Tennison, and Jennifer Schaller of The National Law Review / The National Law Forum LLC

For more business of law legal news, click here to visit the National Law Review.

Copyright ©2022 National Law Forum, LLC

OFAC Offers Guidance in the Wake of Tornado Cash Sanctions

The U.S. Treasury Department’s Office of Foreign Asset Control (OFAC) updated its “frequently asked questions” (FAQs) Tuesday, providing guidance relating to the sanctions against Tornado Cash, the Ethereum “mixer” it blacklisted in August, following allegations that North Korea used Tornado Cash to launder stolen digital assets. The updated information from OFAC comes as a welcome snippet of communication, allowing for clarity on the scope of the action taken against Tornado Cash, as well as providing guidance for U.S. persons affected by the blacklisting who, through no fault of their own, were caught up in federal action.

The updated FAQs provide guidance on four points: (1) the ability to withdraw funds from wallets associated with the Tornado Cash blacklist; (2) whether the OFAC reporting obligations apply to “dusting” transactions; (3) whether U.S. persons can engage in transactions involving addresses implicated in the blacklist without a license; and (4) what, more generally, is prohibited in the wake of the OFAC blacklisting of Tornado Cash.

(1)        Withdrawing Funds

If a U.S. person sent virtual currency to Tornado Cash, but did not complete the mixing transaction or otherwise withdraw such virtual currency prior to August 8, 2022 (the effective date of the OFAC blacklist), such person can request a specific license from OFAC to engage in transactions involving that virtual currency (assuming such person conducts the contemplated transactions within U.S. jurisdiction).

In order to obtain this license, such persons will need to provide, “at a minimum, all relevant information regarding these transactions with Tornado Cash, including the wallet addresses for the remitter and beneficiary, transaction hashes, the date and time of the transaction(s), as well as the amount(s) of virtual currency.”

OFAC indicates that they will embrace a favorable licensing policy towards such applications, so long as the contemplated transactions did not involve conduct that it deems to be otherwise sanctionable, and that licensing requests can be submitted by visiting the following link: https://home.treasury.gov/policy-issues/financial-sanctions/ofac-license-application-page.

(2)        “Dusting” Transactions

Dusting is the act of sending unsolicited and nominal amounts of virtual currency or other digital assets to third parties. This can be done in order to cause consternation on the part of the recipient, particularly in a situation where there is confusion as to the legality of receiving such funds or actions.

OFAC indicates that it has been made aware of Dusting involving virtual currency or other virtual assets from Tornado Cash, and indicates that while, technically, OFAC’s regulations would apply to these transactions, to the extent that these Dusting transactions have no other sanctions associated with them other than Tornado Cash, “OFAC will not prioritize enforcement against the delayed receipt of initial blocking reports and subsequent annual reports of blocked property from such U.S. persons.”

In short, while not a desirable transaction to take place, OFAC does not intend to pursue action against persons simply because they are the target of Dusting.

(3)        Engaging in Transactions With Tornado Cash

OFAC clarified that, without explicit license from OFAC, U.S. persons are prohibited from engaging in any transaction involving Tornado Cash, including any transaction done via currency wallet addresses OFAC has identified as part of the blacklist.

Specifically, “[i]f U.S. persons were to initiate or otherwise engage in a transaction with Tornado Cash, including or through one of its wallet addresses, such a transaction would violate U.S. sanctions prohibitions, unless exempt or authorized by OFAC.”

(4)        Further Tornado Cash Guidance

Referencing FAQs 561 and 562, OFAC reemphasized their authority to include as identifiers on the Specially Designated Nationals and Blocked Persons List (SDN List) specific virtual currency wallet addresses associated with blocked persons, and that such SDN List entry for Tornado Cash included as identifiers certain virtual currency wallet addresses associated with Tornado Cash, as well as the URL address for Tornado Cash’s website.

While the Tornado Cash website has been deleted, it remains available through certain Internet archives, and accordingly OFAC emphasized that engaging in any transaction with Tornado Cash or its blocked property or interests in property is prohibited for U.S. persons.

Interacting with open-source code itself, in a way that does not involve a prohibited transaction with Tornado Cash, is not prohibited. By way of example, “U.S. persons would not be prohibited by U.S. sanctions regulations from copying the open-source code and making it available online for others to view, as well as discussing, teaching about, or including open-source code in written publications, such as textbooks, absent additional facts.  Similarly, U.S. persons would not be prohibited by U.S. sanctions regulations from visiting the Internet archives for the Tornado Cash historical website, nor would they be prohibited from visiting the Tornado Cash website if it again becomes active on the Internet.”

While this update to FAQs come as a welcome bit of clarity, Web3 investors, entrepreneurs, and users should continue to tread carefully when engaging with opportunities and technologies on the periphery of Tornado Cash and the accompanying OFAC action. When questions arise, it is important to seek out informed counsel, to discuss the risks of proposed actions and how best to mitigate that risk while working to pioneer new and emerging technologies.

Article By David A. Lopez-Kurtz of Dinsmore & Shohl LLP

For more finance and cryptocurrency legal news, click here to visit the National Law Review.

© 2022 Dinsmore & Shohl LLP. All rights reserved.

What Are the Standards and Procedures for Jury Selection in My Jurisdiction?

As a national trial consulting firm, we are often asked to assist with jury selection in jurisdictions where lead counsel has been admitted pro hac vice and may not be closely familiar with the standards and procedures for jury selection in the trial jurisdiction. Although local counsel can be a great resource for obtaining more information about jurisdictional rules and individual judges’ preferences, there is also a wealth of information available in online publications to help you prepare for what to expect in most trial venues.

Rules of Civil Procedure

The vast majority of states outline their procedures for jury selection, including standards for hardship and cause, within their Rules (or Codes) of Civil Procedure. These days, many states post their statutory Rules of Civil Procedure directly on the court’s website. It may take a little fishing, but a search for the “[State] Rules of Civil Procedure” on any major search engine will often yield a link directly to the table of contents, where you can then locate the sections pertaining to jury selection.

For example, California’s Code of Civil Procedure Sections 190-237 on Trial Jury Selection and Management provides detailed guidance to judges and attorneys regarding juror questionnaires, mini-openings, breadth and scope of voir dire, and the processes and standards for exercising challenges, among other things. Though less detailed than California, Virginia’s standards and procedures are also online. As another example, the Louisiana Legislature posts its Code of Civil Procedure online, with the procedures and standards for jury selection beginning with Article 1751.

Of course, this information can also be obtained through subscription services like Westlaw and LexisNexis, but if you need to access the statutory language quickly from a tablet or cell phone in court, it is wise not to discount these shortcuts.

Handbooks and Articles

Other valuable resources for trial attorneys include handbooks and articles that summarize the pertinent information. These handbooks are sometimes published by the courts themselves, such as New York’s Implementing New York’s Civil Voir Dire Laws and Rules. This 32-page handbook is especially helpful since, in this jurisdiction, voir dire and jury selection is conducted almost entirely outside the judge’s presence and there are bound to be disagreements between the parties. The handbook is written in common vernacular and includes a helpful table of contents for quick reference, along with citations (and corresponding links) to supporting statutory language from the New York Civil Practice Laws and Rules.

Many bar associations also publish articles that summarize the applicable statutes, as well as the subsequent case law, that further define the scope of voir dire in these jurisdictions. For example, this article on the law of jury selection in Missouri state courts, published in the Journal of the Missouri Bar, discusses limits that the court has imposed on the scope and manner of jury selection, including the incorporation of jury instructions, previewing case facts, seeking commitments and rehabilitation—to name a few. It also includes a lengthy explanation of how the courts deal with juror non-disclosure in this jurisdiction.

While we always recommend that counsel review and Shepardize or KeyCite any case law they find in articles such as these, they can be a valuable first step in identifying the important rulings that may be at issue during jury selection in any given jurisdiction.

Incorporate Cause Standard into Voir Dire Questions

Some of the most important pieces of information to know in advance of voir dire are the court’s standards for securing cause challenges. While each judge may have their own “magic words,” incorporating the statutory language into your cause sequence and rehabilitation efforts can be a powerful tool for gaining an edge over opposing counsel.

For example, knowing whether the statute references words such as “fair,” “impartial,” “bias,” “unequivocal,” “assurance,” or “leaning” should guide the language you use when questioning the jurors. Then, when cause challenges are argued before the judge, we advise counsel to first cite the statutory language, followed by the quotes from jurors that mirror such language. While this is not a fool-proof technique—judges can always exercise their discretion—it will be difficult for any judge to deny a challenge that directly reflects the legal standard.

Similarly, if opposing counsel fails to get jurors to echo the statutory language, you can argue that they have failed to meet the requisite cause standards, increasing the odds that their challenges will be denied.

Prepare for Jury Selection

We recommend researching the applicable rules or code in advance of jury selection and printing them, so they are readily available to cite or hand over to the judge when appropriate. It is also helpful to know your judge’s procedures for jury selection. (Some important questions to ask local counsel can be found in this article.)

Though most jury consultants are not lawyers, selecting a jury consultant with experience in your trial jurisdiction is an important consideration. Your consultant may be able to help you prepare for jury selection by identifying what information you will need to gather in advance and helping you find it quickly.

Article By Christina Marinakis, JD, PsyD of IMS Consulting & Expert Services

For more business of law legal news, click here to visit the National Law Review.

© Copyright 2002-2022 IMS Consulting & Expert Services, All Rights Reserved.

Medical Staff Leaders: 10 Things Your Lawyers Want You to Know

Whether you are new to medical staff leadership or have served in the past and have been called to serve again, there are times when you will need to consult a lawyer who specializes in medical staff matters. While there is nothing simple about medical staff affairs, there are some basic guidelines and protections that your lawyers would like you to know that will make your term easier and make you more effective.

Understand that hospitals and medical staffs are highly regulated organizations with a myriad of laws and standards that must be followed. As a medical staff leader, advisor or medical staff professional, you are leading and advising the professionals responsible for practitioner competence and conduct within the organization. Medical staff law has evolved from the lawyer in the office who would return your call in a week, or fax you a letter, to a specialty area where your lawyer is your partner and there to assist in all aspects of medical staff affairs.

We hope you will benefit from and find the following 10 recommendations make your term or role more informed and manageable.

10. Keep Your Governance Documents Up to Date and Reflective of Actual Practice.

We don’t suggest you must read every page of your governance documents, but you should be sure you know where to look and how to use them. Governance documents include the medical staff bylaws, credentialing manual, hearing plan, rules and regulations, policies and other documents approved by the medical staff and designed to set and guide medical staff processes. Too often we have found the documents will conflict or are missing critical passages. Your medical staff bylaws or medical staff governance committee can be one of the strongest committees in the organization. This is the committee that will annually review the documents and make sure they are internally consistent, reflect actual practice and are relevant to your organization’s practice and clinical services. Remember the medical staff bylaws set the overall guiding principles for the medical staff organization. All other governance documents flow from the foundation of the medical staff bylaws and must be consistent with their principles and mission. Undoubtedly, there will be some inconsistencies but look at those inconsistencies as opportunities to reexamine the principles and consider what is best for your organization. All governance documents should be reviewed in the context of the laws and regulations that require these documents. State and federal laws and regulations set out the basic requirements for the contents of the documents, as do many of the accreditation standards. It is far better to review and revise your governance documents regularly, rather than learn they are deficient during an unannounced survey or regulatory proceeding.

9. Use Your Committees Effectively.

There are two types of committees: those with authority to act and those that are advisory. The committees with authority are generally the Medical Executive Committee (“MEC”) and clinical department committees. All other committees are advisory to the MEC. Advisory committees can develop and recommend policies, rules and clinical practices. Authoritative committees approve policies and rules, take disciplinary action and make recommendations to the MEC. The MEC is the final medical staff authority that submits recommendations for final approval to the governing body. Knowing which committees to use and when is key to leadership success.

8. Know the Scope of Your Authority.

As a leader, you are an agent of the medical staff and the spokesperson for the committee/ department you chair. There are times when you will need to act without the benefit of input from your committee/department. Medical staff bylaws will generally identify the circumstances under which you can act alone and when your action(s) will need to be ratified by the committee. As the chair, you are acting on behalf of the committee/ department between meetings. Do what is needed when needed, within the scope of your authority, but report your actions to the committee/department on a regular basis and be sure your actions are properly recorded in the appropriate minutes. If summary or urgent action is needed, do not hesitate to call a special meeting. You are better off to have the protection of a committee action than to be acting alone or without ratification.

7. Know the Peer Review Protections of HCQIA, Your State and Organization.

Many, if not most, of your actions and the actions of your committees will be covered by federal, state and organizational protections. The Healthcare Quality Improvement Act (“HCQIA”) provides protection from liability for members of a professional review body/ medical staff, who take a professional review action (a) in the reasonable belief the action was in furtherance of quality health care, (b) after a reasonable effort to obtain the facts, (c) after adequate notice and hearing and (d) in the reasonable belief that the action was warranted by the facts. In addition to this federal protection, many states have laws that similarly protect peer review participants, and often, your organization will have an indemnification policy or provision that further protects you and your committee members from damages. Remind your committee participants and members on a regular basis of these protections and that they were specifically designed to encourage peer review by allowing free discussions aimed at improving patient care.

6. Know Your Reporting Obligations.

The National Practitioner Data Bank (“NPDB”) defines the circumstances under which a physician or dentist must be reported. Those include (a) when a professional review action adversely affects their clinical privileges for 30 days or longer or (b) when a physician surrenders clinical privileges while under investigation or in exchange for not conducting an investigation. The failure to report when required to do so can result in the loss of immunities under HCQIA for up to three years, along with a monetary fine. There are many nuances to reporting to the NPDB and we recommend you consult a medical staff attorney who can assist with identifying when to report and what to say. Additionally, each state may have reporting requirements for professional review actions to the state licensing board that exceed the NPDB’s requirements. The state licensing board may also have defined penalties for failure to report. In one state, the knowing failure of a physician leader to report a practitioner to the state licensing board can be considered unprofessional conduct, which can subject the physician leader to state board action.

5. Understand Confidentiality and Peer Review Privilege Protections.

A best practice at the beginning of each meeting is to remind committee members of the importance of maintaining confidentiality. State peer review privileges and protections are often dependent on maintaining confidentiality of the records and proceedings. The failure to maintain confidentiality can act as a waiver of the privilege and permit the introduction of confidential peer review documents and testimony in litigation in the future. Peer review privileges and protections are designed to promote candor in the peer review process. This permits free discussion and identification of opportunities to improve patient care. Without confidentiality and the corresponding privileges and protections, committee members would be reluctant to analyze and frankly discuss areas for improvement in a peer’s clinical care. Obtain information about your state’s peer review privilege and protections and fully understand the circumstances that may cause a waiver, which would permit confidential peer review information to be discussed in open court and stifle important, free-flowing discussion of quality of care at peer review meetings.

4. Know Your Options.

Every professional competence or conduct situation you face will be different. A sound guideline to generally follow is selecting the least restrictive action that will protect patients. Keep in mind that the goal of all peer review is education and remediation. For example, if a practitioner is having complications with robotic surgery, evaluate whether the complications are the result of technical skill, which can be remediated with more practice, or if the complications are the result of poor clinical judgment, which reaches into all areas of performance. In the first case, proctoring, monitoring or an additional educational course may correct the problem. But with the second, the cause of poor judgment is more challenging and may require a further workup, including a fitness for duty evaluation, retrospective review of cases, or an external expert review. Work with your committee and medical staff lawyer to identify all the facts and options to address the problem that has been brought to your attention. In some cases, it may be appropriate to have the issue addressed by the individual’s department or interdisciplinary peer review committee, but in others, the nature of the problem may require the immediate attention of the MEC. In some cases, a discrete referral to your organization’s well-being committee may be appropriate. Regardless, each matter must be carefully and thoughtfully analyzed in light of all the available facts. Then, with all appropriate actions on the table, an informed determination may be made.

3. Act When Indicated but Don’t Shortcut the Process.

. The law and your medical staff bylaws provide for the ability to take emergency action against a practitioner’s privileges when there is a concern of imminent threat to patients or others. What constitutes an “imminent” threat or danger is often the source of hours of discussion and analysis by medical staff lawyers throughout the country. Your legal team is invaluable in working through the facts of a given matter and determining whether a decision for summary suspension is legally sound. If there is a circumstance where emergency intervention via summary suspension is necessary to avoid patient harm after an initial evaluation of the matter, do not hesitate! Take the action to summarily suspend and remove an errant practitioner from the bedside. Afterward, there is time to re-examine the basis for the action and analyze whether continued suspension is necessary to protect patients or others. At that time, it is important to call on your MEC and legal team for their analysis and determination of whether the summary suspension should be upheld.

There are also times when summary suspension will be considered prospectively to address a chronic problem that is rising to an acute stage. The practitioner whose disruptive, bullying and retaliatory conduct has been tolerated may have reached a level where the cumulative effect creates the potential for patient harm because staff, for example, are afraid to call the physician at night about a patient’s health condition, seek clarification of an order, or question whether a procedure is being done on the right side or on the correct patient. Following the medical staff bylaws investigation process will allow for a careful analysis of the reported conduct, which will provide a solid framework for later defense, should it be necessary. That process will almost always involve a committee evaluation of the facts, interview of the practitioner, and a determination of the appropriate next steps. Each of these steps, if followed, will support the action when later scrutinized by a court or jury.

2. Do What is Right for the Patients.

Always put the patients first. There may be procedural missteps during a disciplinary process as the healthcare organization balances the need to protect patients with providing a practitioner due process. However, if the peer review being conducted is based in the foundation of improving patient care and patient safety, courts will generally consider the health care organization’s goals before making a determination that would go against the organization and potentially place patients in harm’s way.

1. Utilize Internal or External Counsel to Navigate Medical Staff Law so You Can Focus on Improving Patient Care.

I (Erin) was asked recently what possible motivation there would be for a physician to enter leadership in a medical staff organization if their role consisted solely of consulting with a medical staff lawyer. In response, I reminded this physician that medical staff leadership and medical staff lawyers work together on challenging matters and daily operations with the lawyer recommending limitations and guardrails and advising on how to avoid legal missteps and pitfalls. This advice from the lawyer enables the leader to focus on monitoring the business of the organization and improving patient care.

Final Take-Aways

Our medical staff organizations need people who are willing to serve as leaders during challenging times when caregivers are stretched thin, suffering burnout and subjected to daily difficulties that can be demoralizing. Strong leaders who are reassured of their legal protections can perform their leadership responsibilities without fear of reprisal when following the advice of their legal counsel. We encourage you to reach out and make your lawyer an integral part of your team so that they can understand your organization and business and provide you the best available advice that will reassure you and other leaders in the organization of the legal protections and immunities.

Article By Erin L. Muellenberg and Sherri T. Alexander of Polsinelli PC

For more healthcare legal news, click here to visit the National Law Review.

© Polsinelli PC, Polsinelli LLP in California

Large Corporate Bankruptcy Filings Continue to Decrease through First Half of 2022

Most industry groups saw bankruptcy filings decline from mid-2020 pandemic highs.

New York—Following the spike in large corporate bankruptcy filings triggered by the COVID-19 pandemic, filings in 2021 and the first half of 2022 fell to levels below historical averages, according to a Cornerstone Research report released today.

The report, Trends in Large Corporate Bankruptcy and Financial Distress—Midyear 2022 Update, examines trends in Chapter 7 and Chapter 11 bankruptcy filings by companies with assets of $100 million or higher. It finds that 70 large companies filed for bankruptcy in 2021, down significantly from 155 in 2020 and below the annual average of 78 filings since 2005. In the first half of 2022, only 20 large companies filed for bankruptcy, compared to midyear totals of 43 in 1H 2021 and 89 in 1H 2020. The 20 bankruptcies in 1H 2022 were the lowest midyear total since the second half of 2014.

“U.S. government stimulus programs, low borrowing rates, and high debt forbearance helped disrupt predictions of continued growth in the number of bankruptcy filings,” said Nick Yavorsky, a report coauthor and Cornerstone Research principal. “Looking ahead, however, there are some concerns that increased corporate debt levels, rising interest rates and inflation, and a potential global recession may contribute to an increase in bankruptcy filings.”

In 2021, there were 20 “mega bankruptcies”—bankruptcy filings among companies with over $1 billion in reported assets—a substantial decline from the 60 mega bankruptcy filings in 2020. The first half of 2022 saw four Chapter 11 mega bankruptcy filings, compared to nine in the first half of 2021 and at a pace significantly lower than the annual average of 22 filings in 2005–2021.

Most industry groups saw bankruptcy filings decrease in 2021 and the first half of 2022, including those industries with the highest number of filings following the pandemic’s onset: Mining, Oil, and Gas; Retail Trade; Manufacturing; and Services.

Read the full report here.

Article By Allie Schwartz, Joseph B. “J.B.” Doyle, Nicholas D. Yavorsky, and Diego Vega San Martin of Cornerstone Research

For more bankruptcy legal news, click here to visit the National Law Review.

Copyright ©2022 Cornerstone Research