When a company retains outside counsel to conduct an internal investigation of alleged wrongdoing, attorney investigators sometimes need or require the assistance of outside consultants, such as forensic accountants or technology specialists, to effectively represent and communicate with their client. While the extension of the attorney-client privilege to communications between counsel and such outside consultants has been recognized, the consultant must be integral to counsel’s ability to perform the investigation and convey and discuss the results to the client, and privileged communications with the consultant should be narrowly restricted.
In a recent case, SEC v. Navellier & Assocs., Civil Action No. 17-11633-DJC (D. Mass. Jan. 22, 2019), the court held that the attorney-client privilege did not extend to an outside consultant hired as part of an internal company review to assist counsel in advising clients regarding possible future litigation with the Securities and Exchange Commission regarding exchange traded funds. According to the court, the third party “must be ‘necessary, or at least highly useful, for the effective consultation between the client and the lawyer which the privilege is designed to permit.’” The court emphasized that the third-party consultant’s involvement must be nearly indispensable or serve some specialized purpose in facilitating the attorney-client communications. The court found that the consultant’s role in that case, while helpful in assisting counsel, did not rise to the required level of necessity; thus, communications between counsel and consultant were not privileged. The Navellier decision serves as a reminder to both companies and counsel to analyze as a threshold matter whether the consultant is truly necessary or merely helpful or convenient, and tailor communications with the consultant accordingly.
Every legal recruiter and professional development professional understands the importance of planning for significant initiatives. Operating by the seat of one’s pants simply does not work within this industry. In the days that precede your performance review, consider the following:
Before you think short, think long
By definition, any annual performance evaluation must include a review of your key undertakings during the previous 12 months. That review, however, should only consume a fraction of the time that you spend with your supervisor. As quickly as possible, move your conversation from a focus on wherever you were a year ago to wherever you hope to be at some future stage in your life.
This means that you must invest time developing your long-term professional goals before your evaluation begins. If you are less than certain as to what your next career move might be, as soon as possible, do the following:
Set some time aside and let your imagination go wild. Create a virtual or actual whiteboard and post every work and career possibility that tickles your fancy. It doesn’t matter how crazy any one option now appears. Post all options somewhere and give yourself permission to seriously consider them. Eventually, narrow your focus to your two or three best choices.
Once you’ve identified your best options, move from thinking to doing. Research your top three options and identify the skills, talents and experiences that you need to develop or acquire for you to make your dream position a reality. Engage in “radical collaboration”—reach out to valued colleagues and peers as well as experts in a particular field. Inquire about the benefits and costs that might be related to any career shift. If it’s possible for you to gain hands-on experience, by all means do.
Reframe problems. Be prepared for naysayers, the people who will suggest a multitude of reasons that should keep you from imagining a future that is different from your status quo. When others point out potential obstacles, welcome their feedback. Then, go off on your own and carefully consider whether a perceived obstacle is a proverbial mountain or a minor molehill.
Realize that we are all on a journey. All of the knowledge and experience that you have acquired thus far in your life has helped you arrive at exactly the position where you are right now. But your journey is not over. There’s nothing wrong with a periodic pause to consider whether you should turn left or right. But just pause; don’t come to a complete stop. Every experience that you have, every piece of knowledge that you acquire today will help you arrive at your next resting point.
To the extent that you invest in this effort before your performance evaluation, you can make the limited time that you have with your supervisor more useful and valuable.
[Two resources that might help you jumpstart your thinking include Start with Why (2009) by Simon Sinek and Designing Your Life, How to Build a Well-Lived, Joyful Life (2016) by Bill Burnett and Dave Evans. Both books are thought-provoking, and the authors have created workbooks that can help you think through your general purpose in life and where you may wish to venture. Burnett and Evans are responsible for the term “radical collaboration.”]
At your performance evaluation
Be prepared to address your performance during the previous 12 months, including activities in which you know that you exceeded expectations. For activities in which you met or fell below expectations, be prepared to:
Analyze what you did well;
Analyze what did not go as well as you had hoped and why;
Identify what you could do better; and
Suggest what you plan to do next.
Throughout your evaluation, listen deeply to your supervisor’s perspective regarding your performance, which may be completely different from your own. In a world in which we are all moving at the speed of light and distracted by a million-and-one requests, I am increasingly amazed at how frequently two people participate in a singular event and yet experience it very differently. Your performance review should move you and your supervisor toward a shared understanding of the past and give you the opportunity to collaborate on creating your future.
If you’re blindsided
If your supervisor blindsides you—brings up some issue(s) about which you are totally unaware and unprepared to address—do not respond immediately. Instead, give yourself the opportunity to participate in a future thoughtful and responsive conversation by stating the following:
I appreciate your feedback.
Can you give me one or two specific examples when I didn’t hit the mark?
I’d like to take a day or two to process this information.
May we schedule a follow-up meeting?
Be prepared to self-promote
Muhammad Ali once famously said, “It’s not bragging if you can back it up.” If you’ve retained appreciation emails from firm partners or key firm decisionmakers that recognize your good performance, bundle these and carry them to your performance review. If you’ve had numerical targets that you were challenged to meet during the previous 12 months, gather your quantifiable verifiables and be prepared to share them.
If your next professional move involves your current employer, be prepared to document that you have the natural talents to succeed in this new capacity. The Top 5 CliftonStrengths assessment tool is an easy, affordable instrument that will help you confirm your unique talents. Given your understanding of your employer’s wants and needs, be prepared to show a match … how you and your talents can help your supervisor and your employer accomplish their strategic missions.
These are just a few of the findings from fSquared Marketing’s “Legal Marketing Mental Wellness Survey Report”. The survey polled 200 legal marketers and business professionals working at law firms primarily in the United States and Canada.
Recently, the legal industry has started to take stress and mental health seriously, but the conversation has invariably focused on the wellbeing of lawyers,” says Lynn Foley, CEO of fSquared Marketing. “That’s not the entire picture—stress affects everyone. Law firms often have a clear hierarchy and stress flows downhill to fall on the shoulders of the professional staff.”
“When we initially sought out information about mental health within legal marketing and business development, we found that there wasn’t any research on the subject,” explains Foley. “From my experience working with lawyers, I understood that we needed more than anecdotes and emotion to advance the conversation, we needed information and data. While we aren’t actually involved in HR or wellness consulting at fSquared Marketing, we saw that there was a need for this research and we had the skills to pursue it.”
Why are marketing staff so stressed out? There are several compounding factors.
Overworked and overwhelmed
Marketing staff say they have too much work assigned to them and not enough support to effectively manage demands on their time. The vast majority also reported that their department suffered from a lack of marketing resources. This is a sure-fire recipe for chronic stress and, eventually, burnout.
75% of respondents said that they felt overwhelmed at work while two-thirds said that stress is eroding their ability to focus on the task at hand. This is unfortunate and ironic since high-pressure situations are when powers of concentration become most critical.
As one respondent commented: “We aren’t surgeons, but we do carry a tremendous amount of our own stress as well as the stress of others… There are no resources and there are very few people who would ever admit to needing them anyway for fear of appearing weak — stigma is an issue for everyone in the legal industry, not just lawyers.”
A divide between lawyers and “non-lawyers” (professionals)
It’s no secret that attorneys face significant threats to their mental wellbeing. As the American Bar Association describes it, “Lawyers work in an adversarial system with demanding schedules and heavy workloads, which may contribute to increased stress levels.”
The legal industry deserves some credit for recognizing this problem and many law firms are taking steps to improve the mental health of attorneys. Critics would undoubtedly say that change isn’t coming fast enough and that many initiatives are focused on symptoms, not root causes.
While more firms are advancing mental health initiatives, these are not always extended to professional staff. A survey of 30 Am Law Firms found that 36% of firms that offer mental health programming do no offer these programs to staff.
Many respondents to fSquared Marketing’s survey mentioned this divide between lawyers and staff. “Stress and mental health is mostly addressed for the lawyers and not the ‘non-lawyer’ roles, in my opinion,” one respondent noted.
58% of survey respondents agreed or strongly agreed with the statement: “There is a focus on the mental wellbeing of lawyers in our industry.” Compare this with the 9% who agreed with the statement: “There is a focus on the mental wellbeing of non-lawyers in our industry.”
One respondent’s comments summarized a common perspective: “It is unfortunate that law firms segregate mental health awareness between lawyers and non-lawyers. Somehow they feel that staff (with whom they work directly) do not suffer from the same level of stress that the lawyers do.”
A lack of respect for marketers
The good news is that 92% of marketing and BD staff felt that they had an important role to play at their firm and many said that their ideas were often heard, valued, and put into action (73%).
Although professionals recognize their value, they often perceive a lack of respect from attorneys. The majority (51%) agreed with the statement: “There is a lack of respect for me/my role by the lawyers.”
Few factors are likely to prove as harmful to staff wellbeing. The divide between lawyers and staff is again a contributing factor. “It’s stressful”, one respondent commented, “when law firms hire ‘smart’ and ‘well-respected’ professionals who really want to do what’s best for the overall business, but then their ideas are brushed aside because they aren’t part of the partnership or don’t have a J.D.”
Changing the culture
The issues raised by this survey are disquieting. It’s clear that law firms need to take mental health seriously, for staff as much as for attorneys.
The survey did, however, find some cause for hope. For one, 62% of respondents said that their team’s marketing ‘wins’ are celebrated.
As one legal marketer said: “The level of stress varies significantly from firm to firm. Even though I am very busy at my firm, my work is appreciated and that goes a long way toward feeling good about my job.”
The fact that staff experiences vary between firms is evidence that law firms do not have to be toxic work environments. It is entirely possible for law firms to foster cultures of respect. Those that do are likely to enjoy a competitive advantage.
As one respondent said, “A good, friendly culture goes a long way”.
When it comes to getting the word out about their firm’s gender diversity, many marketing directors focus on publicizing stats that demonstrate progress. Using external communications to spotlight an evenly split associate class, a new equity partner who is a woman or the contributions of women attorneys on marquee cases is a great way to promote your firm’s commitment to gender equality.
But statistics are only one piece of the story about how your firm supports its women lawyers. And that full story may already be on display for prospective clients and recruits, whether you realize it or not. Your overall messaging comes across not just in the communications you produce — on your website, on social media, in ads and thought leadership pieces — but also in who speaks for your firm in the media and what they say. There’s nothing worse than launching an ambitious information campaign to modernize your firm’s image, only to have it undermined by comments to a reporter that are way off message.
Let’s look at two hypothetical cases of law firm leaders quoted in a legal media story on the lack of women represented in banking and finance law.
Law leader A describes his firm’s talent-driven effort to bring in the best women attorneys as well as a robust mentoring and sponsorship program focused on advancing them to leadership positions. “It’s important to us to promote top women attorneys,” he says. “But inclusion isn’t something the firm is embracing out of social correctness or benevolence. Instead, we know, and research shows, that more diverse teams of lawyers are better problem solvers, which means they provide better service to clients. More women in leadership is good for the firm and good for our clients.”
Law leader B talks about his firm’s efforts in a different way. He notes that he’s pretty sure the firm won the business on a $30 billion deal because they included a woman on the team at the pitch meeting, though he doesn’t say whether that woman will play a significant role on the work itself. On the matter of advancing women attorneys in this practice area, he says, “We’re trying, but this job is just inherently demanding and unpredictable, and it’s tough for someone with childcare responsibilities to fully participate.”
Leader A’s comments underscore the marketing department’s work to get the word out about the progress the firm is making on gender diversity. He skillfully articulates not just what the firm is doing but why, and how these initiatives will ultimately benefit clients.
Leader B’s comments, however, will make most marketing directors break into a sweat. He talks about diversity as a legal obligation but also a burden on the firm. And while he seems genuinely to believe that a lack of women in power is a loss for those women, he does not articulate an understanding that the firmand its clients are worse off without the unique contributions those women attorneys would make to the work. Comments like these to a reporter are off message and undermine the firm’s overall goal to demonstrate that it is willing to change things like work processes and schedules to prioritize gender diversity.
Marketing directors don’t always have control over who takes a reporter’s call or what that person chooses to say. But as much as possible, marketers must take proactive steps to harness the power of these media opportunities and make sure they work in service of the firm’s overall communications strategy. Here are three ways you can start this work today:
Integrate messaging across internal and external communications. Has your firm articulated how its gender-equality initiatives line up with its stated values or mission statement? Your internal communications are the place to begin distributing those talking points. All members of the firm should understand not just what you are doing to support the advancement of women but why, and how the initiatives serve clients. This messaging should be consistent across your internal and external outreach.
Advocate for media training. High-quality media training will prepare your firm’s leaders to speak knowledgably about the firm’s diversity initiatives and stay on message. It will also help to create a plan for which leaders should speak on which topics to maximize credibility.
Broker relationships between key reporters and select attorneys. You can influence who becomes the face of the firm in the media by taking proactive steps to match reporters with your best spokespeople and steering them away from less reliable partners. To maximize the effectiveness of these introductions, prepare both parties for the conversation: help your firm representative understand the reporter’s specific interests, and provide the reporter with background on the attorney’s expertise and roles within the firm. Don’t leave anything to chance.
Your efforts to promote your firm’s diversity initiatives will only be successful if your messaging is consistent across all channels. Get proactive to ensure that your firm’s media opportunities support your communication strategy and build the firm’s brand overall.
At least 73% of everyone looking to hire a lawyer search online long before they ever make that first call. In addition, it is said that the attorney biography page is the most visited page on law firm websites. This makes having a good set of online biographies a requirement for driving business to your legal practice. It should be simple: just write a little bit about yourself and your accomplishments, right?
Unfortunately, it is not always that easy.
Each type of biography has its own quirks and requirements. In addition, while most lawyers are excellent communicators and writers, that can actually work against them when dealing with a finite space for sharing credentials in a marketing setting.
Here are my top 7 tips for creating excellent lawyer biographies and some important faux pas to avoid.
1. Open with a strong statement
The biography is a vehicle for selling legal services so even if it is in a third person voice, it should be about connecting your experience with the legal problems you solve. The first paragraph of your biography is important real estate for starting a conversation with the person you are trying to connect with.
You can also increase your online search results by adding in specific keywords in the first line and headings such as your first and last name, firm name, location, and most prominent practice area. Education and personal information should be saved for the end of the biography.
2. Cover the basics
Make sure to include all the nuts and bolts that people will want to follow up on to ensure that you are who you say you are. Specifically, you should cover:
Contact Information: Location, phone number, social media links, email address.
Education: Undergraduate and law school credentials, as well as any post-graduate degrees.
Work History: This is not always necessary but be sure to share any noteworthy positions.
Practice Areas: When possible be concise.
Published Cases or Representative Clients: Do not forget to Include high-profile clients and pro bono work soliciting permission to publish when necessary.
Publications: These should be publications you have written or have been interviewed by.
Speaking Engagements: Lectures, podcasts, and panel discussions are great to include.
Awards: Your biography should contain both legal and civic awards.
Board Memberships: Every instance should be its own entry or bullet point.
Bar Associations & Legal Organizations: Highlight leadership positions first, general memberships after and include years of participation if possible.
Clerkships: Judicial clerkships are important to list.
3. Cover the extras
Next, you will want to make sure that you include anything extracurricular that will make you stand out in a crowd. Leadership positions (even outside of a legal industry), community service, and board memberships are great additions to this section. This is also the right place to include a personal line or two about your interests, hobbies, or family to inspire further connection with your audience.
4. Have a relevant, professional photo
Here is an area where many lawyers fall short. Remember, this may be the only time your prospective new client sees you before deciding to request your help. Give your best possible first impression by investing in professional headshots that reflect your best qualities and your personal brand. Take professional headshots regularly to keep your online image current.
5. Create several biographies for the best web engagement
The professional biography that you have on your website should be different than the one you have on sites like Avvo or Martindale-Hubbell. This gives each of your biographies a unique content score with the search engines which improves your overall search results rankings. It also means that potential clients see unique pieces of content that have not been cut-and-pasted to save time.
Consider creating a bank of biographies for each of your online biographies, your website, and printed biography. Be sure to calendar a reminder to review them once per quarter for updates. In addition, develop a different “short” version that can be used when you speak, guest post on a blog, or are published in a legal journal.
6. Avoid the biography pitfalls
There are a couple of issues that I see often when I review clients’ online and offline biographies. Some of the worst offenders when creating a biography include:
Informal photos: Stay away from using an old repurposed image of you at your brother’s wedding. And, unless you have an MFA in graphic design, stay away from photoshopping yourself into a different setting.
Being too wordy: There is no need to include everything you have ever done in your legal career in your online biography. Skip the fluff and focus on the highlights. The ideal length is between 300-500 words.
Big blocks of text: Too much text tires the reader, and odds are good you will lose their attention even before they hit the second paragraph. Keep paragraphs to between 2-4 sentences to incorporate white space. Be sure to read your biography out loud to note any drawn-out sentences.
Third person formal: Stay away from calling yourself “Ms. or Mr.” in your biography. This sounds pretentious and can be off-putting for new clients. Instead, simply use your full name once at the beginning and your first name after that. It is important to note that there is a lot of debate about whether you should write your biography in third person (he, she, them) or first person (I, me, my). The answer will come from your target audience, your practice area, and your personal brand.
7. Try creative, interactive elements
You can make your biography page stand out even more by incorporating engaging elements like vcards, printable versions, or introductory videos – as long as they are professionally produced. Another wise choice is to include a disclaimer if you list your email address stating that sending an email to you does not indicate a legal attorney-client relationship unless an engagement letter has been signed.
Conclusion
Writing the perfect lawyer biography does not have to be a difficult exercise. Like any other marketing exercise, start with your potential client and work backward. Your biography is a great opportunity to connect with people before you meet them. Create text that is search-friendly, concise, and filled with the highlights of your career. This will allow potential clients and colleagues to “cut through the noise” and recognize you for the great lawyer that you are.
Law firms serving corporate clients face increasing pressure not only to make their workplaces more diverse and inclusive overall, but also to ensure that more women and people of color occupy top positions of power. Last January’s open letter from 170 general counsel serves as the most pointed example of this client demand. In it, they called on law partners to “develop, promote and retain talented and diverse attorneys”—or risk losing business to firms that take diversity and inclusion seriously.
Law firm leaders who have long paid lip service to these goals without actually changing their recruiting, professional development or performance evaluation practices face a true crisis, and mapping out a path forward that satisfies client demand, not to mention the moral imperative to create firms that better represent our society, will require a multifaceted approach. It might surprise you to learn that a sophisticated communications and media strategy is a crucial piece of that plan.
While public relations may not seem to have an obvious connection with diversity efforts, PR partners who specialize in the legal sector can provide law firm leaders with strategic, targeted support to meet their goals for equity. Effective law firm PR partners can help you:
Audit current initiatives. Most firms are doing something on diversity and inclusion, with varying results. If these initiatives are not yielding the desired outcome, it’s time to think about why. Sometimes the real problem is not a lack of effort but the flawed thinking behind a program.
For example, many initiatives intended to address gender equality target differences in women’s approach to risk-taking, negotiation, and work-life balance. While that may sound like progress, focusing on individual women’s choices furthers beliefs and stereotypes that have been debunked by decades of reliable data about fundamental gender differences. Men and women are not nearly so different as we persist in believing. They behave differently in various settings not because of inherent traits but because of organizational practices that reward and punish men and women differently. Equity initiatives that target systemic issues like parental leave and the pay gap are more likely to improve the promotion and retention of women.
As your approach to improving diversity evolves, your internal and external communications need to evolve too. PR support can help you demonstrate a more sophisticated understanding of the problems and the solutions—and show clients that you are serious about making measurable progress.
Reimagine networking. Today’s attorneys know they must provide excellent client service and master the art of business development. That typically involves some form of networking: getting out of the office to form relationships with clients and prospects, and planting the seeds for referrals and new business down the road. But old-fashioned networking—on the golf course, in the bar, at the country club—is not always a strategy that works for women, people of color, LGBTQ lawyers, and others who have come to the field from outside the old boys’ network. If you are serious about supporting your diverse attorneys, you can get proactive about professional development that helps them build their business in ways that work for them. And your PR team can help these attorneys become more active in relevant professional organizations, nominate them for awards, boost their online and social media presence, and facilitate alternative networking opportunities.
Activate a hands-on media strategy. A customized, targeted plan to promote your diverse attorneys’ immense skills and experience, as well as their innovative approaches to old problems, is key to raising their profiles and, by extension, your firm’s profile as well. PR support can help attorneys build relationships with the reporters who cover issues in their practice area so that they can become expert sources. Attorneys can partner with writers to create thought leadership articles for the publications most widely read by their clients and prospects. Nothing helps you take control of the narrative about your firm like media opportunities that highlight the skills and experience of your current and future diverse superstars.
With clients pressuring law firms to change their ways, creating a diverse and inclusive workplace has gone from a lofty goal to a strategic imperative. This necessary transformation presents leaders with significant challenges, but the good news is you don’t have to go it alone. Experts in communications and media strategy can help you take practical steps to develop and support the diverse attorneys who serve your most valued clients. And, of course, as you would expect, PR professionals can also help you share the good news about the progress you’re making in advancing diversity and inclusion in your firm.
Read on to see more on legal industry hires, recognitions, and new technology and research impacting the legal industry.
Law Firm Hiring, Strategic Partnerships and Expansions
Vincenzo Franco
Van Ness Feldman announces the return of Vincenzo Franco as a partner in the Electric and Renewable Energy Practices. Franco was at Van Ness Feldman from 2010-2014, and left the firm to work with Exelon Corporation, as Assistant General Counsel – Wholesale Trading Compliance and then Associate General Counsel at Exelon Corporation, where he led the compliance function for Constellation. With his return to VNF, Franco focuses on transactional, regulatory and enforcement matters representing utilities, generation owners, developers and other investors before FERC (Federal Energy Regulatory Commission). VNF Chair, Richard Agnew, indicated his excitement at Franco’s return. Agnew says, “His [Franco’s] in- house experience coupled with his knowledge of our clients makes Vincenzo an exceptionally strong addition to the firms highly regarded electric practice.”
Leading international technology and energy law firm Baker Botts LLP announced that it has formed strategic partnerships with the Cannon Houston, Station Houston and Capital Factory. These Houston organizations are designed to aid entrepreneurs and will specifically be working with Baker Botts’ Emerging Company and Venture Capital practice based in Palo Alto. The firm’s experience in advising entrepreneurs, emerging growth companies, investors and venture capitalists provides a valuable resource for the incubators and the entrepreneurs they nurture and host. Samantha Crispin, the Technology Sector Chair at Baker Botts points out this partnership will allow Baker Botts to work with a generation of Texas-based companies from their very inception. She says, “One of the most intriguing aspects of these partnerships is the expected cross-pollination of our Texas and California ECVC practices and that the most promising companies will gain exposure to potential investors, including those in Silicon Valley.”
Baker Botts Managing Partner John Martin embraces the opportunities for growth this partnership will provide. He says, “We have a history of working with emerging and technology companies throughout their full life cycle, and we expect these partnerships will expand those opportunities more broadly. Some of our firm’s largest clients are businesses with which we have worked since they were startups themselves.”
Dinsmore has expanded operations onto the East Coast, opening an office in the Boston Financial District. Three partners—Javier F. Flores, Eric V. Skellyand Brian Blaesser will lead the new office and the firm’s expansion into this region. The firm will primarily represent clients in litigation and real estate development in New England. With the opening of the office in Boston, Dinsmore now has a presence in 25 cities across the country.
Beard has been litigating complex civil and intellectual property matters for over ten years, with a particular emphasis on handling complex discovery matters. He has argued cases in federal courts across the country, and has handled matters before the International Trade Commission (ITC) and the U.S. Court of International Trade. Beard says, “With its history and reputation in Colorado, the Firm is uniquely positioned to serve the explosive growth of Denver’s high-tech market.”
Along with Beard, Sherman & Howard is also adding Robert Thompson as an Associate to the Litigation, Trials and Appeals practice group. Thompson’s practice will focus on securities litigation and enforcement matters. His previous experience in house at a leading financial institution has prepared him well for representing clients in SEC (Securities and Exchange Commission), DOJ (Department of Justice) and FINRA (Financial Industry Regulatory Authority ) investigations. Katie Varholak, Litigation Practice Group Leader at Sherman & Howard, “Thompson’s background in finance, securities and complex corporate investigations positions him to serve a wide range of the firm’s clients.”
Sherman is joining the Boston office, while Trunkes will be in the New York office. Sherman has experience assisting project owners, developers and general contractors, and others, in navigating construction disputes, and with drafting contracts, negotiation and entity formation.
Trunkes works with developers, apartment building, brownstone and condominium unit owners, and others, in negotiating contracts and adjacent-owner license access agreements. R+C Construction chair, Gregory R. Faulkner, says the attorneys are welcome additions and will help the firm strengthen its presence in the construction market, and “Their hands-on experience is an added value to our practice and further enhances our collective ability to provide the best service to our clients.”
Law Firm Accomplishments, Awards and Recognitions
McKool Smith, noted litigation firm, secured an insurance recovery victory on behalf of Pfizer in Delaware Superior Court. This victory allows Pfizer to continue to compel two excess insurers to cover the costs related to defend and settle multidistrict litigation surrounding pain treatments Celebrex and Bextra. McKool Smith principals Robin Cohen, Adam S. Ziffer and Marc Ladd represented Pfizer in this litigation. A Delaware state court judge awarded partial summary judgment, saying Arch Insurance Company and U.S. Specialty Insurance Company were unable to apply a “specific litigation exclusion” in their D&O policies, and that these insurers must help cover the cost of the $486 million settlement.
Seyfarth Shaw was recently recognized for its commitment to diversity and inclusion by the California Minority Counsel Program (CMCP) receiving the Drucilla Stender Ramey Majority-Owned Law Firm Award. The CMCP is a state-wide non-profit dedicated to opening up the legal profession to attorneys from all backgrounds, by providing attorneys of color with opportunities for business development. Seyfarth Shaw has offices in Sacramento, San Francisco, Los Angeles and Century City. The firm has a recognized commitment to diversity, and was also recently named a “Best Law Firm for Women” for the ninth year in a row, and was shortlisted for the 2019 Chambers USA Diversity & Inclusion Awards. The firm is especially proud of its “Rooney Rule” initiative, where for every open associate position, at least one diverse candidate is considered and interviewed.
Full-service law firm Pillsbury’s Corporate practice, in a review of M&A and private equity, was ranked among the Top 20 legal advisers in the US and Japan. Factset highlighted Pillsbury as a top 20 firm in Japan for M&A deals, and in the United States, the firm was in the top 20 for middle-market M&A transactions. Along those lines, Refinitiv listed Pillsbury in the top 20 for deal count for firms handling U.S. middle-market mergers and acquisitions, so far in 2019, and Bloomberg named Pillsbury in the top 20 for active law firm advising on deals valued up to 250 million. Pillsbury has over 100 experienced M&A attorneys across the firm’s twenty global offices. Highlighted transactions for 2019 include Invitae Corp.’s acquisition of biotechnology company Jungla, Salarius Pharmaceuticals on its merger with Flex Pharma, and Intel’s acquisition of Barefoot Networks, just to name a few.
DirectWomen, dedicated to increasing the presence of women attorneys on corporate boards, will honor 2019 award recipients in October in New York City at the Sandra Day O’Connor Board Excellence Award Luncheon. These awards are given to recognize the efforts made by the recipients to increase corporate board diversity. The Sandra Day O’Connor Board Excellence Award honors women who have served on the board of a public company and have advanced the mission of diversity in the workplace. This year, Angela Braly, Co-founder of the Policy Circle and former Chair and CEO of WellPoint, now known as Anthem, among others, and Rose McKinney-James, Managing Principal of Energy Works LLC. PNC will be presented with the 2019 Board Diversity Award, which recognizes corporations that served as leaders in achieving board diversity by showing a commitment to diversity in the boardroom. Linda L. Addison, Immediate Past Managing Partner of Norton Rose Fulbright and Director, Torchmark Corporation will be recognized with the Distinguished Alumna Award, highlighting the accomplishments of an Alumnae who joined a large corporate board since completing the Institute. Finally, the Mary Ann Jorgenson Board Empowerment Award will be presented to DirectWomen Advisory Board Member Alan L. Beller, Senior Counsel, Cleary Gottlieb Steen & Hamilton LLP; Director, The Travelers Companies, Inc for his work preparing women attorneys to assume the responsibilities of board service.
Commercial Mortgage Alert once again ranked law firm Cadwalader, Wickersham & Taft LLP at the top of their commercial mortgage-backed securities (CMBS) tables, ranking Cadwalader as Number 1 for both Issuer Counsel and Underwriter Counsel, making it the 19th year in a row Cadwalader held that spot for Issuer Counsel. Further, the firm represented 58% of the issuer offerings floated in the United States in the first half of 2019, and 44% of the CMBS transactions on the underwriter side. Mike Gambro, co-chair of Cadwalader’s Capital Markets Group, says of the rankings, “We work with great clients who expect us to provide top-notch advice and service, and we are fortunate to have the results reflected in our position in the law firm rankings for so many years.” Cadwalader’s Capital Markets Group has attorneys based in New York, Charlotte, Washington, D.C., and London.
Legal Industry Technology, Research and Software Advancements
Qorus, a sales platform connecting contacts, content, and data, recently announced a Share & Track feature to their software. This addition enables user to send documents securely without attachments, and track how their contacts engage with those documents, such as proposals, pitches, and contracts. This enables sales teams to see and analyze which part of their proposal process is most important to their prospects, and they gain insight into their materials to ensure they create content that is engaging and effective.
The documents are sent via tracked sharing links that can be inserted into messages to clients. These links, when clicked, track the engagement with the content and launch an online document viewer and the file can be viewed securely, providing the information securely to the prospect. The sales team can see how long the prospect looked at the document, which pages were looked at the most, and whether or not the document was passed on, providing valuable feedback on what really matters to prospects. Ray Meiring, Qorus CEO, explains “This creates a powerful feedback loop that tells the team how interested a potential buyer is, and gives them insight into the prospect’s true propensity to buy – allowing them to adjust their approach accordingly.”
With the constant concerns regarding cybersecurity and with increasing regulation on a variety of levels, the introduction of Digital Defense’s Frontline InsightTM with on-demand peer analysis of security risk metrics gives companies another arrow in their quiver to secure their data. Frontline Insight is accessible via Frontline.Cloud Digital Defense’s Saas security assessment platform. This allows Digital Defense users to access information to reduce their own security risk, and provide information on how to evolve and maintain their information security programs so that they perform at top levels. By offering comparison from an industry perspective, but also integrating suggestions based on organizational and employee size, the tool can highlight vulnerable areas and threats, and assist in the development of benchmarks. Larry Hurtado, President & CEO of Digital Defense says this is a useful product for companies looking to evaluate their data security practices in comparison to organizations similar in size and scope. He says, “Frontline.Cloud enables clients to gauge their success in ways that previously required more intensive consultative studies. Now, this information is available with just a few clicks.”
Of particular interest to law firms as they look at managing law firm succession strategies as baby boomers exit the workforce and millennials assume greater responsibility is the results of a Manpower Group Survey, indicating only six percent of millennials want to be leaders, and just four percent want to manage others. The survey indicates that millennials, on a whole, are more interested in developing their own skill sets, and less interested in learning to manage and lead others. This suggests that law firms will be among the 84% of organizations facing a leadership shortfall, and developing a leadership pipeline for law firms, as well as client relationship management, will become increasingly important as firm leadership transitions become more complex and frequent.
Intapp has recently released a white paper The Modern CMO: Advancing Marketing From Reactive to Predictive. This paper discusses how adopting a modern approach to law firm business development, and harnessing data across the entire client lifecycle can lead to insights that drive smarter and more strategic decisions in law firms. Topics discussed include the role of the CMO as a change agent, smart collaboration in action and how to transition from a reactive to a predictive approach.
Bracewell LLP announced they added two public finance partners, Bill Mahomes and E. Steve Bolden II. The men have been practicing together for the past ten years, and they both have extensive experience in public finance projects. Bracewell Managing Partner, Gregory M. Bopp says, “Bill and Steve are exceptional public finance lawyers. They have a strong public finance practice in Dallas and across Texas that will deepen the capabilities of our nationally-recognized team.”
Mahomes has experience in public infrastructure projects and P3s, and has served on the board of directors of the Dallas/Fort Worth International Airport and the Texas Turnpike Authority, giving his advice the heft of on the ground experience. Bolden, along with his public finance work, also practices in corporate and securities law; specifically, experience in mergers and acquisitions in public and private companies. In terms of his public finance practice, he focuses on bond counsel, disclosure counsel and underwriters’ counsel matters.
Alan M. Brunswick
Mitchell Silberberg & Knupp announced that Alan M. Brunswick will join the firm as a partner in the Los Angeles office. Brunswick has established a practice representing clients in labor relations matters, specifically in the media and entertainment industry. His experience spans wrongful termination, employment discrimination, wage and hour as well as ERISA disputes in union and non-union settings. Before moving to law firms, Brunswick was the former Vice President and in-house counsel for the Association of Motion Picture & Television Producers. Kevin Gaut, chairman of MSK, praises Brunswick’s reputation for creativity and intelligence, and he says, “Adding Alan to our team of sophisticated entertainment industry labor attorneys only strengthens MSK’s standing as a go-to firm for companies facing tough negotiations.”
Perkins Coie announced their Labor & Employment practice added three new partners—Richard B. Hankins and Brennan W. Bolt to their Dallas office, and Seth H. Borden to the Washington DC office. All three bring experience in labor relations advising, and have experience working with corporations and in working with the NLRB.
Hankins has over twenty years of experience working with companies on a wide range of labor relations issues; with specific emphasis on working with companies on labor relations strategies during acquisitions and divestitures, as well as plant reorganizations. Additionally, Hankins has experience before the NLRB and the US Circuit Courts of Appeals, arguing cases in over 15 regions of the NLRB. Borden has built his career on helping organizations navigate labor relations strategies, including helping to negotiate collective bargaining agreements and labor arbitrations. He has specific expertise in social media and other communications technologies and how they integrate into labor law. Brennan works with employers, providing counsel on unfair labor practice proceedings, collective bargaining, strikes and boycotts. He has litigated on the employer side on Title VII, the ADA, FMLA, FLSA, trade secrets and non-compete claims. Ann Marie Painter, Chair of the Perkins Coie Labor & Employment practice calls the addition of the attorneys a “valuable resource.” She says, “When it comes to the labor and employment space, this group has a stellar and nationally recognized reputation as the go-to team for some of the world’s largest companies. They have successfully handled large-scale ‘bet-the-company’ labor cases, but can also nimbly aid employers of all sizes with their day-to-day labor issues.”
Additionally, Perkins Coie announced that Joydeep Dasmunshi has joined the Mergers & Acquisitions (M&A) practice as a partner in the Chicago office. Dasmunshi has focused on middle-market M&A transactions, and his record includes a $4.25 billion airline acquisition, a $1.75 billion sale of a global valuation, corporate finance and governance-related advisor company to a private equity firm two years ago, and work with various middle-market portfolio companies in technology, media, financial services and healthcare.
Pallavi Banerjee, PhD
Pallavi Banerjee, Ph.D. joins Womble Bond Dickinson as a Science Advisor in the firm’s Boston office. A former fellow with Boston Children’s Hospital and Harvard Medical School, Banerjee’s background in cell biology, cancer biology and immunology assists life sciences clients develop their patent portfolios. She has experience working with biotech companies and universities on IP due diligence and drafting and prosecution of patent applications with the USPTO. Her research on cellular and molecular mechanisms of diseases and how to identify therapeutic targets using in vitro and in vivo mechanisms have been published in the Journal of Biological Chemistry, Cancer Research, Cancer Letters, and International Immunology.
Venable recently announced that Paul C. Levin has joined the firm as a partner in the Real Estate Practice. Levin has experience at all levels of the real estate transaction process, and he has worked on some of the most recognizable projects in the Bay Area. Levin is a LEED Green Associate and is a member of the U.S. Green Building Council, Northern California chapter. Additionally, he has experience with P3 projects. He will be working in Venable’s Baltimore and San Francisco offices. Levin is excited about his bicoastal work with Venable, saying, “The firm’s deep practice and stellar reputation will allow me to continue to grow as a deal lawyer. I am thankful to have the opportunity to continue to build my Bay Area practice while returning to my hometown to expand my East Coast deal flow.”
Law Firm Recognition and Accolades
John Allen, of Varnum, was recently appointed to the Ethics and Professionalism Standing Committee of the Tort Trial and Insurances Practice Section of the American Bar Association. Allen, who focuses his practice on business and commercial litigation, has served this committee devoted to consideration and understanding of issues on attorneys maintaining professional independence, at several points throughout his career. Along with being certified as a civil trial advocate by the National Board of Trial Advocacy, he is also a certified arbitrator and mediator.
Carmen Cole
Labor and Employment Attorney Carmen Cole, with Polsinelli, was recently appointed to the Board of Directors of Public Counsel. Public Counsel is a non-profit dedicated to providing legal services to individuals, families, veterans and immigrants who live below the poverty level and do not have access to legal representation. In order to address civil rights and systemic issues facing this population, the group works with volunteers from major law firms and corporations.
Cole, a Principal in Polsinelli’s LA and SF office, says, “Public Counsel plays a critical role ensuring that individuals in underserved communities within the Los Angeles area have access to quality legal representation,” said Cole. “I am honored and humbled to be a part of this mission. As someone from an environment where statistically it would have been more likely for me to have become a client of Public Counsel rather than a member of its Board of Directors, this appointment will provide an opportunity to pay it forward. This is a great way to give back to the Los Angeles community.”
Cole has a long list of community volunteer and leadership roles. She has been active with the California Minority Counsel Program; she has worked hard to make the legal industry more accessible to women and minorities. Cole has also contributed her time in raising awareness and funds for the African American Chamber of Commerce’s (GLAAC) Education Fund & Foundation program.
For the sixth year in a row, Davis Wright Tremaine was named one of the country’s Best Law Firms for Women by Working Mother magazine in conjunction with the ABA Journal. This accolade recognizes the firm’s success in retaining and recruiting women attorneys, the firm’s family-friendly policies and the resulting high number of women in leadership roles. Women comprise 27% of the equity partners at Davis Wright Tremaine. The magazine highlighted the firm’s Mentoring Circles program, which was recently revamped and now helps support over 100 women attorneys at all levels in the firm.
Labor and Employment law firm, Jackson Lewis was also one of the 60 firms recognized by Working Mother magazine as a “Best Law Firm for Women.” Firm Co-Chairs Kevin G. Lauri and William J. Anthony say they are pleased with the firm’s designation by the magazine, and they “consider it to be a direct result of the firm’s inclusive culture together with our commitment to fostering the promotion of women throughout every level of the firm.”
Meredith Borgas, editor-in-chief of Working Mother, says she hopes the magazine’s accolade highlights best practices for law firms and encourages others in the industry to follow suit. She says, “It’s heartening to see the progress women lawyers are making at firms committed to fully utilizing these attorneys’ abilities. The war for talent is increasing incentives for law firms to invest in retaining women lawyers, which is why we’re seeing more women’s initiatives and parental-support groups.”
Dan Wolf
Dan Wolf, an Associate with Gilbert LLP, was recently honored with the Making Justice Real Pro Bono Award by the Legal Aid Society of the District of Columbia. Wolf has an outstanding record in pro bono achievement, having worked with clients referred from Legal Aid and leading pro bono efforts at his firm; which he has done since he joined Gilbert in 2012. Wolf has worked with pro bono clients on consumer law matters, rental housing and public benefits, and he has recruited colleagues to take on these matters as well. Scott Gilbert, the founder and Chairman of Gilbert LLP, says Wolf “sets an example for the firm. We are both very proud and quite fortunate to have Dan as a colleague.”
Legal Industry Tech, Tools &
Thomson Reuters recently announced Westlaw Edge Quick Check, designed to harness AI technology to streamline and supercharge legal research. Quick Check allows Westlaw users to go over documents with citations to ensure everything is covered and no major points were missed. By uploading a document into Quick Check, users can have the text analyzed and Quick Check will identify the legal issues at hand, offering recommendations of relevant to the issues in the document that are not cited. Users can filter results based on previous reviews, and additional indicators are assigned based on established categories. Quick check is integrated with KeyCite to catch cases that are bad law, to ensure the results are accurate. Additionally, QuickCheck can be used to identify weakness in briefs, highlighting citations that are invalidated or overturned, and can find citations that were passed over but are relevant.
Khalid Al-Kofahi, vice president of Research & Development at Thomson Reuters says:
We’ve built Westlaw Edge Quick Check to be very sophisticated in terms of selecting which language and citations to extract from motions and briefs, and it executes several search strategies, sifts through primary and secondary law results, follows citation networks, and finds and filters by Key Numbers, courts and other data attributes. In doing so, it often considers hundreds of thousands of possibilities – far more than any researcher could go through, even if he or she had all day to do it – yet it returns a concise report of relevant material that might have been missed in a traditional research process.
Wilson Allen, a software and technical services provider for professional services law firms, and ClearlyRated, a client satisfaction, service quality research provider, have teamed up to help law firms take client experience data to distill actionable insights for business development. Norm Mullock, Vice President of Strategy at Wilson Allen, says, “After experiencing the ClearlyRated client survey program first-hand, it became clear that real-time insight into client experience would be a pivotal improvement for the firms that we work with.”
This partnership will allow law firms to maximize the data available in both client feedback and business analytics to provide the tools needed for data-driven decision making. The companies have launched an API Integration that pairs the ClearlyRated Client’s Service program with business intelligence tools in order to ensure those data points are available for business planning. Eric Gregg, ClearlyRated’s CEO, says, “The client experience is important to all professional services businesses, but it is also a prime opportunity for law firms to differentiate from the competition. Our partnership with Wilson Allen will ensure that the law firms we serve have access to measurable insight on the client experience in a way that supplements business intelligence and informs strategies for growth.”
With the need for efficiency ever-present in legal operations, LawLytics, the leading website platform for small law firms, and PracticePanther, the cloud-basedpractice management system, have partnered to provide customers of both forms with native integration between their platforms. By simply embedding some code, a law firm’s web leads and client forms can be linked to their PracticePanther account, simplifying the process of integrating new clients, setting up billing and matter management. Instructions, with screenshots, are available and this process can be implemented with just a few clicks.
The legal industry is continuously changing and we want to share the good news about strategic hires and notable industry achievements. We’re also looking to pass on interesting legal tech developments that aid lawyers and law firms in streamlining and growing their practices.
Notable Legal Industry Recognitions
The law firm of Frost, Brown & Todd was honored by the Women in Law Empowerment Forum (WILEF) for their diversity and inclusion efforts with a 2019 Gold Standard Certification, and the firm was only one of 45 firms to receive this honor. In order to be recognized firms had to meet a variety of criteria, including the mandatory criterion that at least 20% of all equity partners are female, or 33% or more of attorneys who became equity partners during the last year were women. Additionally, there are other criteria that must be met, some incorporating other diversity measures including LGBT attorneys or women of color in equity partner roles. FBT has been honored with this designation by WILEF seven times.
Carlton Fields and K&L Gates both ranked in the Construction Executive’s inaugural “The Top 50 Construction Law Firms” list. Carlton Fields’ Construction practice has received multiple accolades, including being named by Chambers USA as the No 1. Construction practice in Florida for 17 years straight. K&L Gates has over 2,000 attorneys in offices on five continents, and was named one of the top 5 firms in the inaugural edition of the list. The list considered the number of attorneys working in the area, as well as the number of states where the firm is licensed to practice, the year the practice was established and percentage of the firm’s total revenue that comes from the Construction practice.
Wiggin and Dana LLP Corporate M&A practice was recently recognized by IFLR 1000 US 2019 edition as a Tier 1 firm for Corporate M&A work in Connecticut. Additionally, five attorneys with Wiggin and Dana were specifically recognized: Paul Hughes, William Perrone, and Mark Kaduboski were named as Highly Regarded, while Evan Kipperman and James Greifzu were designated as Future Rising Stars.
For the fourth time, Chambers USA named McDermott Will & Emery the 2019 Healthcare Team of the Year. The health practice at McDermott earned a Band 1 ranking in the Healthcare category for the 10th year in a row earlier this year, and it is the only firm to hold that distinction. In fact, the practice group has picked up a variety of accolades over the years, including commendations from US News and World Report and The Legal 500. Practice Chair Eric Zimmerman says, “Our team is dedicated to helping health care companies push the boundaries of what it means to be innovative.”
Per Alan S. Kaplinsky, Practice Leader of Ballard Spahr’s Consumer Financial Services Group. “Judy represents the best that our legal profession has to offer—she has a sophisticated understanding of the payments ecosystem, she leads by example, and she fosters an inclusive environment.”
Steptoe & Johnson PLLC announced that Thomas J. Sengewalt has rejoined the firm’s Denver litigation practice. Sengewalt has experience in energy litigation and energy transactions. Steptoe & Johnson CEO Susan S. Brewer expressed excitement for Tom’s return to Steptoe & Johnson, saying, “His work in litigation and transactions helped some of the Appalachian region’s largest energy producers, and we know he will bring the same skill and passion to our clients in the Rockies.”
Former Commissioner of the California Department of Business Oversight, Jan Lynn Owen joined Manatt, Phelps & Phillips, LLP as a senior advisor in the financial services group. Owen is known for her embrace of technology and using technology to foster innovation, and she worked to find banking solutions for the cannabis retail industry, working with state regulators and business owners to innovate practical and safe solutions for these businesses. Additionally, she worked to develop fintech start-ups, working to reduce regulatory burdens in this industry while safeguarding consumer privacy. Owen says, “I knew Manatt’s financial services group would be the ideal place for me to advise and counsel businesses that face a number of complex regulatory and marketplace challenges in today’s rapidly evolving new economy.”
Feinberg Day Alberti Lim & Belloli LLP in Menlo Park, California is increasing its intellectual property punch with the addition of five intellectual property attorneys, including two new Partners Robert Kramer and Russell Tonkovich. The firm will undergo a name change and be called: Feinberg Day Kramer Alberti Lim Tonkovich & Belloli LLP. Kramer and Tonkovich each have assembled an impressive resume of awards and a history of winning verdicts in significant patent infringement cases. Tonkovich is a medical doctor as well as an attorney. Additionally, Feinberg Day is also adding attorneys Kate Hart, Aidan Brewster and Nick Martini to their IP focused law firm. Feinberg Day was founded in 2011, and has a reputation for assisting clients in monetizing their patent portfolios.
Winston Strawn announced the addition of Christopher B. Monahan to their Washington DC office. Monahan works with clients on compliance with International Traffic in Arms regulations, the Export Administration Regulations and sanctions programs under OFAC and FCPA. He assists clients with internal investigations and compliance reviews, and he helps clients in determining jurisdiction and export control classification of their products and technology. Monahan will join the firm as a partner in the White Collar, Regulatory Defense & Investigations Practice.
Legal Technology News
Legal Services Link recently launched ioRefer™ Referral Software designed to streamline the referral process within law firms, bar associations, legal networks and corporate law departments. ioRefer’s interactive database helps attorneys looking for assistance on particular projects to quickly post and distribute staffing needs notices either within their law firm or within a broader legal network. Conversely, law firm attorneys or network professionals with extra capacity can search the database for staffing needs on specific projects. ioRefer for Corporate law departments simplifies the process of retaining qualified law firm talent via targeted matter postings or by searching an intuitive, current directory of qualified professionals.
Attorney and co-founder, Matthew Horn: “ioRefer solves the ineffective, outdated, manual processes used to refer and staff client matters and helps balance the workload distribution of matters to qualified professionals who are looking to take on more work. For law firms, it keeps client matters from being sent outside the firm and at the same time helps lawyers become more interconnected with their colleagues.”
Alliance Legal Solutions recently launched Fundafi.com, a technology-enabled lending platform that improves access to financing for small U.S.law firms. Fundafi’s business model is designed to nurture a law firm’s growth much like a private equity firm would do for an emerging business. Fundafi has deep knowledge of small law firm practices gained during 8 years of experience working with thousands of law firms. Alliance Legal Solutions was founded in 2011, by Cheryl Kaufman, a graduate of Wake Forest School of Law.
Over three billion images are shared online each day, and around 85% of them are unlicensed, with estimated revenue lost at more than $600 million daily, as reported by COPYTRACK and summarized in its recently released 2019 Global Infringement Report.
Some of the more interesting findings from the 2019 report reveal that the U.S. is the world leader in image theft comprising 22.96% of worldwide theft. But less obvious is the #2 offender, Panama, a country with four million inhabitants, comprising a 6.76% share of global image theft. This anomaly is likely the result of “Privacy Protection Services,” who registers site domains in Panama to mask the owners’ personal information. China, considered by many to be the world leader in authorized use, comes in third place with a surprisingly small 6.57%.
Cyber Special Ops, LLC, recently announced a new delivery model for cyber services called Concierge Cyber™ which is modeled after the growing practice of concierge medicine. It includes à la carte or bundled service offerings. same day appointments, phone or email access on evenings and weekends, and pre- and post-breach services as needed at pre-negotiated rates. Breach response services are provided by My-CERT™, a team of highly credentialed legal, information security, credit and identity restoration, and public relations specialists
Per Kurtis Suhs, founder and managing director of Cyber Special Ops, LLC: “Currently only 2 of 10 organizations have purchased cyber insurance, and their policies may not cover theft of monies. So, who do organizations call in the event of a wire fraud loss on a Friday evening? Concierge Cyber makes it possible for organizations of all sizes and budgets to have immediate access to world-class cyber risk management support. The My-CERT™ team provides expertise, experience and agility to effectively respond to a cyber incident under the protection of attorney-client privilege.”
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Other than having to respect testimonial and constitutional privileges of the people called to appear before it, a federal grand jury can pretty much do what it wants in questioning witnesses and compelling the production of documents. Federal grand jury subpoenas are almost never quashed on grounds that they call for irrelevant information or go beyond the grand jury’s authority. Federal grand juries have a maximum of 23 members, 16 of whom must be present to form a quorum. Indictments are returned by a vote of 12 or more members. Federal grand juries typically sit for a term of 18 months and meet at regular intervals. As a practical matter, a grand jury will almost always return an indictment presented to it by a prosecutor. This is the basis for Judge Sol Wachtler’s famous saying that a prosecutor can get a grand jury to “indict a ham sandwich.” Testifying or providing documents to such a powerful body entails grave risks. You should never attempt to face these risks without the help of an experienced white collar criminal defense attorney. Here you will find 10 tips for responding to federal grand jury subpoenas that call for your testimony or documents. Of course, every case is different and you should always develop a strategy in consultation with your attorney.
1. Keep Your Attorney Close at Hand.
Your lawyer can’t be with you in the grand jury room, but he or she can be right outside the room and you have the right to consult with him or her after each and every question. In fact, you can spend as much time as you need conferring with your lawyer, as long as you are not attempting to disrupt the grand jury process. You can also leave the grand jury room in order to brief your attorney about the questions being asked and your responses. In most federal jurisdictions you can also take notes of any questions asked during the grand jury session. These can later be shared with your attorney.
2. Beware of Agreeing to Pre-Grand Jury Interviews
You are under no obligation to talk to government agents before the grand jury process begins. Some Assistant United States Attorneys trick unrepresented persons into interviewing with federal agents prior to the beginning of the grand jury session. The letter accompanying the witness’ subpoena may ask or direct the witness to appear an hour or two early at the grand jury room or the U.S. Attorney’s Office. These pre-grand jury interviews are dangerous and ill-advised and the government has no authority to compel them. You may make a harmful admission during one of these interviews. In addition, you may be accused of lying to a government agent during the interview. Lying to government agents during an interview, like lying to the grand jury, is a federal crime. At the grand jury session, however, there will be an official recording and/or transcript of the proceedings, so there will be no dispute about what you say. The pre-grand jury agent interview will not be recorded. Two federal agents will take notes of what you say and it will be their word against yours in the event of a dispute.
3. Don’t be Bullied or Misled About Grand Jury Secrecy.
Federal grand jurors, grand jury court reporters and the prosecutors running the grand jury are under a strict duty to keep any “matter occurring before the grand jury” a secret. This duty is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Violations of this rule can result in sanctions or criminal contempt charges against a prosecutor. But the rule of secrecy does not apply to federal grand jury witnesses. If you are a grand jury witness, you have the right to tell the whole world about your grand jury testimony. Of course, it may not be in your interest to do this. You may want to keep your appearance before the grand jury under close wraps. You need to understand, however, that it is your call-not the government’s. But some federal prosecutors attach cover letters to grand jury subpoenas, informing the witness that revealing the contents, or even the existence, of the subpoena “may impede” a criminal investigation. These cover letters then “request” non-disclosure of the subpoena (and/or the documents requested in the subpoena) and ask the witness to notify the prosecutor if the witness has any “problems” with non-disclosure. You should by no means put up with this nonsense. If you receive a cover letter like this, you should consider having your attorney write a polite response to the prosecutor or the case agent including the following language: “Your cover letter requests non-disclosure of the subpoena (and/or the documents requested in the subpoena) and asks to be notified if there are problems with such non-disclosure. I am reluctant to have my client take on a formal affirmative obligation, regarding either non-disclosure of the subpoena or notification of problems with such non-disclosure, beyond the requirements, if any, found in Fed. R. Crim. P. 6(e) or in some other statutory or court authority you can point me to. Rest assured, however, that my client has absolutely no desire to compromise your investigation or to publicize the existence of either the subpoena or your investigation.”
4. Insist on Grand Jury Secrecy from the Government.
As mentioned, Rule 6(e) prohibits the government from revealing “a matter occurring before the grand jury.” This prohibition, of course, covers the content of grand jury testimony. But it goes much further. The government cannot even reveal that you appeared before the grand jury or that you have been subpoenaed or scheduled to appear. Many prosecutors and agents get sloppy about this and reveal that a person or company has been subpoenaed. In addition, some grand juries have waiting rooms where multiple witnesses are invited to wait until they are called. In these situations, each witness is told, in effect, that the other witnesses waiting with him have been summoned to appear “before the grand jury.” On other occasions, members of the press, who know what day the federal grand jurors meet, have been tipped off to be at the courthouse entrance, so that they can see a grand jury witness enter and draw the obvious conclusion. Your white collar criminal defense attorney should be vigilant in guarding against these abuses and should put the federal prosecutors handling your appearance on notice not to violate grand jury secrecy with such maneuvers.
5. Let Your Attorney Accept Service of the Subpoena.
Your attorney should arrange with the prosecutor to accept service of the grand jury subpoena on your behalf. This spares you the embarrassment of being personally served by FBI agents at your home or in the workplace. What if the agents don’t know or care that you have an attorney, and decide to serve you personally anyway? You should politely accept service, tell the agents that you have an attorney, and decline to answer any and all substantive questions about the case. Refer all questions to your attorney. What if you don’t yet have an attorney when you are personally served with the grand jury subpoena? Politely accept service and tell the agents that you will decline to answer any substantive questions until you have had the opportunity to obtain an attorney. You are under no obligation to do anything other than accept service of the subpoena. If you say anything at all about the case to the agent you could be making dangerous admissions that may be used against you at a later time. For example, let’s say that you are being investigated in connection with an alleged tax fraud scheme involving foreign trust accounts. Assume that there are no documents which on their face tie you to any such trust accounts. Then an FBI Special Agent (or an IRS Criminal Investigation Division Special Agent) serves you with a grand jury subpoena for all records related to those foreign trust accounts. When she serves the subpoena, the agent asks: “Are you going to cooperate?” You respond: “Yes, I’ll cooperate. You’ll get the documents.” What have you done? You have just admitted to the government that you possess or have access to the foreign trust account documents. You have in effect acknowledged a connection between yourself and the foreign trusts. If you instead respond to the agent as follows: “I’m sorry, but I have an attorney and she will be contacting you,” you have admitted nothing.
6. Learn the Difference Between Types of Grand Jury Subpoenas.
Federal grand jury subpoenas are for: (a) testimony (ad testificandum); (b) documents or objects (duces tecum); or (c) both. The face of the subpoena will inform you which type of subpoena you received. You will be subpoenaed as an individual or as a custodian of records for a business entity. In many instances, individuals have the right to refuse to answer grand jury questions by invoking the Fifth Amendment’s Privilege against Self-Incrimination. Corporations and other business entities, however, cannot invoke this privilege. But since a corporation operates through human agents, it must designate a custodian of records when subpoenaed by the federal grand jury. Under Supreme Court case law the corporate custodian is only required to answer a narrow category of questions, related to how the subpoenaed documents were searched for and gathered. If you are properly subpoenaed as a business custodian, it is very important that you limit your answers to this narrow category of questions. Prosecutors love to get corporate custodians into the grand jury room and ask extra questions. These questions might seem innocuous, but they are often very dangerous. You need to have your white collar criminal lawyer with you for consultation, right outside of the grand jury room, to ensure that you are not tricked into answering one question too many. Some federal prosecutors have recently started the practice of issuing one subpoena to a person in that person’s individual capacity and his custodial capacity. This tactic is dangerous, confusing, and, in my view, unauthorized. It is tantamount to issuing one subpoena to two persons or companies. Your attorney should insist on two separate subpoenas-one for you as an individual and one to the company’s custodian of records.
7. Don’t Testify if You Have Exposure.
As mentioned above, if you are subpoenaed for testimony in your individual capacity, you may be able to avoid answering substantive questions by invoking the Fifth Amendment’s Privilege against Self-Incrimination. This is true even if you are not a target of the investigation. Keep in mind that even if a prosecutor designates you a witness or subject, rather than a target, this designation provides you with no rights or protection and can be changed at any time. The right to invoke the Privilege against Self-Incrimination is much broader than most witnesses and attorneys realize. If a truthful answer to a grand jury question would even tend to incriminate you, you can invoke the privilege and refuse to answer. How can an answer tend to incriminate you? If it furnishes a link in the chain that might lead to your conviction. Can a person who is totally innocent of wrongdoing invoke the privilege? Absolutely! The Supreme Court has ruled that the privilege protects the innocent as well as the guilty. Why would an innocent person want to invoke the privilege? To keep from being ensnared by a mistaken, incompetent, or unscrupulous prosecutor. Take the following example. The federal grand jury is investigating a corporation for accounting fraud. You work in the corporation’s accounting department. The prosecutor believes that any accounting department employee who reviewed Document X and later booked entries related to Document X is guilty of fraud. You looked at Document X and later booked entries related to Document X, but don’t believe you defrauded or intended to defraud anyone. No record shows that you reviewed Document X and no other person knows that you reviewed Document X, but several documents and co-workers can establish that you booked entries related to Document X. If you testify at the grand jury and truthfully admit that you reviewed Document X, you will tend to incriminate yourself, even though you don’t believe that you are guilty, because you will furnish a link in the chain that the prosecutor may use to indict and convict you. You also may be able to invoke the Privilege Against Self-Incrimination to avoid producing certain documents. Although documents created prior to receipt of a grand jury subpoena are typically not covered by the Privilege, this is not always the case. If the very act of producing a document would tend to incriminate you, the Privilege will often apply. For example, if you are under investigation for receiving classified documents, and you are subpoenaed for those documents, the very act of producing the classified documents to the grand jury is in itself incriminating.
8. Review Your Prior Testimony.
Some federal prosecutors like to call witnesses back to the grand jury to testify on multiple occasions. This is dangerous because it can cause you to inadvertently give inconsistent testimony under oath. Under §1623(c) of the federal criminal code, the government can prosecute you for testifying to two irreconcilably contradictory statements under oath, and the government does not even have to prove that either of the statements in question was false. When you are called back to the grand jury to testify for a second time, your attorney should insist on your right to review ahead of time the official transcript of your first session. In this way, you can refresh your recollection as to your earlier testimony, correct any mistakes, and prepare yourself for the upcoming session. The United States Court of Appeals for the District of Columbia Circuit recently ruled that grand jury witnesses, even if they have not been called back to testify for a second time, have an inherent right to review a transcript of their earlier testimony.
9. Conduct a Shadow Grand Jury.
If you have the money, your attorney can often conduct what is known as a shadow grand jury. Friendly witnesses will sometimes inform you if they have been subpoenaed to the grand jury and you and your defense team can often figure out who else the government may call. Grand jury witnesses are then interviewed, before or after they testify, giving you valuable information on where the investigation is heading. Of course, grand jury witnesses are under no obligation to cooperate with your defense team, and the use of shadow grand juries often infuriates prosecutors. You should proceed with great caution and make sure that all interviews are carefully documented so that your defense team is not accused of witness tampering or obstructing justice. And it should go without saying that your attorney and his staff should conduct and arrange all interviews-not you.
10. Don’t Wait Until the Last Minute.
Do NOT wait until one day or one week before your grand jury appearance date to contact a federal criminal defense attorney. Any decent attorney will need time to discuss the facts of your case with you in detail and talk to the Assistant U.S. Attorney who is running the grand jury. In other words, your attorney needs time to assess your level of exposure and develop a game plan. This can’t be done overnight. On rare occasions, prosecutors issue “forthwith subpoenas” requiring witnesses to appear before the grand on very short notice. Even in these situations, you should immediately consult an attorney who can advise you on how to proceed. At the end of the day, you may be nothing more than a routine witness, asked to provide routine documents. But federal grand juries exist to investigate, and prosecute, serious crimes. You could be stepping into a mine field. Don’t go it alone and don’t wait until the last minute to seek professional help.
The effects of stress on law firm staff has often been overlooked even though a number of 
As one respondent commented: “We aren’t surgeons, but we do carry a tremendous amount of our own stress as well as the stress of others… There are no resources and there are very few people who would ever admit to needing them anyway for fear of appearing weak — stigma is an issue for everyone in the legal industry, not just lawyers.”
Few factors are likely to prove as harmful to staff wellbeing. The divide between lawyers and staff is again a contributing factor. “It’s stressful”, one respondent commented, “when law firms hire ‘smart’ and ‘well-respected’ professionals who really want to do what’s best for the overall business, but then their ideas are brushed aside because they aren’t part of the partnership or don’t have a J.D.”
DirectWomen
The documents are sent via tracked sharing links that can be inserted into messages to clients. These links, when clicked, track the engagement with the content and launch an online document viewer and the file can be viewed securely, providing the information securely to the prospect. The sales team can see how long the prospect looked at the document, which pages were looked at the most, and whether or not the document was passed on, providing valuable feedback on what really matters to prospects. Ray Meiring, Qorus CEO, explains “This creates a powerful feedback loop that tells the team how interested a potential buyer is, and gives them insight into the prospect’s true propensity to buy – allowing them to adjust their approach accordingly.”
This partnership will allow law firms to maximize the data available in both client feedback and business analytics to provide the tools needed for data-driven decision making. The companies have launched an API Integration that pairs the ClearlyRated Client’s Service program with business intelligence tools in order to ensure those data points are available for business planning. Eric Gregg, ClearlyRated’s CEO, says, “The client experience is important to all professional services businesses, but it is also a prime opportunity for law firms to differentiate from the competition. Our partnership with Wilson Allen will ensure that the law firms we serve have access to measurable insight on the client experience in a way that supplements business intelligence and informs strategies for growth.”
Carlton Fields
