Category: lawyers

NLR Legal Industry News July 1, 2019: Law Firm Recognition, Tech and Talent

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.

top-50-construction-law-firmsCarlton 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.”

Ballard Spahr attorney Judy Mok, has been named to the New York Law Journal‘s 2019 Rising Stars list. Ms. Mok has extensive experience negotiating payments transactions for some of the world’s largest retailers and financial institutions. Prior to joining the firm, Ms. Mok served as Senior Payments Counsel for Apple Inc.

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.”

Legal Talent Update

EDITThomasSengelwaltSJ
Thomas J. Sengewalt

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.

EDITMonahanChris.WinstonStrawn.DC
Christopher B. Monahan

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.”

Cheryl Kaufman, CEO of Alliance Legal Solutions
Cheryl Kaufman

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%.

2018 bus email graphicCyber 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.”

Notable legal industry news?  Submit your stories for consideration in the National Law Review’s Legal Talent and Tech Update.

Copyright ©2019 National Law Forum, LLC
For more on the business of law, please see the National Law Review Law Office Management page.

The Federal Grand Jury: Ten Tips If You Receive a Subpoena

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.

Copyright ©2019 Solomon L. Wisenberg
This article was written by Solomon L. Wisenberg of Nelson Mullins.
For more on appearing in court & litigation, please see the National Law Review pages on Civil Procedure or Litigation & Trial Practice.

Law Firm Security: Privacy & Data Security Laws that Affect Your Law Firm

At this point in the cybersecurity game, it’s a given that to prevent a breach, law firms must take every precaution to protect its data as well as the valuable data of its clients. What may not be as clear are the obligations that law firms, or any other third party, owe to certain organizations via industry-specific privacy and data security laws and regulations. These are put in place by foundations, government laws, and agency policies to ensure that they are not vulnerable to cybersecurity attacks.

Privacy and Data Security Laws and Regulations

Although there are many organizations that are subject to these laws, this article will address the most high-profile organizations, including the following:

Health Insurance Portability and Accountability Act (HIPAA)

HIPAA applies to covered entities such as health plans, health care clearinghouses and certain health care providers. Because these entities do not operate in a vacuum and often rely on the services of third-party businesses, there are provisions that allow these entities to share information with business associates and law firms.

A business associate “is a person or entity that performs certain functions or activities that involve the use or disclosure of protected health information on behalf of, or provides services to, a covered entity,” according to the U.S. Department of Health & Human Services website.

Before information is shared with a business associate, the entity must first receive satisfactory assurances that the information will only be used for the purposes for which it was obtained, that the information will be safeguarded and that the information will help the covered entity to perform its duties. The satisfactory assurances must be in writing to ensure compliance with privacy and data security laws.

Gramm Leach Bliley Act (GLBA)

The GLBA was enacted to require financial institutions to explain their information-sharing practices to their customers and to safeguard vulnerable customer data from a security breach.

Under the Safeguards Rule of the GLBA, all financial institutions must protect consumer collected information from a security breach. Usually, data collected includes names, addresses and phone numbers; bank and credit card account numbers; income and credit histories; and Social Security numbers.

Further, financial institutions are required to ensure that parties with whom they are doing business must also be able to safeguard data with which they have been entrusted, such as law firms. Financial institutions must “select service providers that can maintain appropriate safeguards. Make sure your contract requires them to maintain safeguards, and oversee their handling of customer information,” according to the FTC website to ensure compliance of privacy and data security laws.

The FTC provides a detailed list of tips that financial institutions, as well as third-parties, can use to set up a strong security system to prevent a data breach of a customer’s information.

Payment Card Industry Data Security Standard (PCI-DSS)

The PCI was founded by American Express, Discover Financial Services, JCB International, MasterCard, and Visa, Inc. with the intent to “develop, enhance, disseminate and assist with the understanding of security standards for payment account security,” according to its website.

The standards apply to all entities that store, process or transmit cardholder data. This would include law firms, of course. The website lists 12 requirements that must be maintained, including:

  1. Install and maintain a firewall configuration to protect cardholder data.
  2. Do not use vendor-supplied defaults for system passwords and other security parameters.
  3. Protect stored cardholder data.
  4. Encrypt transmission of cardholder data across open, public networks.
  5. Use and regularly update anti-virus software or programs.
  6. Develop and maintain secure systems and applications.
  7. Restrict access to cardholder data by business need-to-know.
  8. Assign a unique ID to each person with computer access.
  9. Restrict physical access to cardholder data.
  10. Track and monitor all access to network resources and cardholder data.
  11. Regularly test security systems and processes.
  12. Maintain a policy that addresses privacy and data security laws and regulations for employees and contractors.

Federal Reserve System

The Federal Reserve System issued the Guidance on Managing Outsourcing Risk publication to address concerns about third-party vendors or service providers and the risks of a data breach. The Federal Reserve defines service provider as, “all entities that have entered into a contractual relationship with a financial institution to provide business functions or activities.”

The publication indicates that a financial institution should treat the service provider risk management program commensurate with the level of risk presented by each service provider. “It should focus on outsourced activities that have a substantial impact on a financial institution’s financial condition; are critical to the institution’s ongoing operations; involve sensitive customer information or new bank products or services; or pose material compliance risk,” according to the publication.

An effective program should include the following:

  1. Risk assessments;
  2. Due diligence and selection of service providers;
  3. Contract provisions and considerations;
  4. Incentive compensation review;
  5. Oversight and monitoring of service providers; and
  6. Business continuity and contingency plans.

Federal Deposit Insurance Corporation (FDIC)

The FDIC issued a Guidance for Managing Third-Party Risk where the agency makes clear that an institution’s board of directors and senior management are responsible for the activities and risks associated with third-party vendors. This includes a breach into a third-party’s system. Among other third-party organizations, the publication lists significant organizations where “the relationship has a material effect on the institution’s revenues or expenses; the third party performs critical functions; the third-party stores, accesses, transmits, or performs transactions on sensitive customer information.” All of these could involve law firms that work with financial institutions.

The publication summarizes risks that third-party entities may pose, including strategic risk, reputations risk, operational risk, transaction risk, credit risk, compliance risk, and other risks. It also summarizes a risk management process, which includes the following elements of (1) risk assessment, (2) due diligence in selecting a third party, (3) contract structuring and review, and (4) oversight.

Conclusion

Being a third-party cybersecurity risk may be foreign territory to most law firms. But many organizations have in place privacy and data security laws and regulations to protect systems that could be vulnerable to a cybersecurity breach. It behooves law firms to be aware of these laws and regulations to be able to implement the laws and regulations as thoroughly and as expeditiously as possible.

ARTICLE BY:

Jaliz Maldonado
PracticePanther
© Copyright 2018 PracticePanther

Using Technology to improve legal services? Submit to the Chicago Legal Tech Innovator Showcase! Deadline 9-29!

Is your firm combining technology and innovation to serve clients? We want to know about it! The Chicago Legal Tech Innovation Showcase, brought to you by the Chicago Bar Association’s Future of the Profession Committee and Chicago Kent School of Law is October 24th.  Submissions are due by September 29th, 2017.

A panel of distinguished judges will choose five “Best in Show” awards in each of the 2 awards categories: Law Firm/Legal Services and Company/Product/Service. Each award winner will present a 5 minute pitch at the Chicago Kent Auditorium on October 24 and have an opportunity to exhibit during the event. All submissions that meet the criteria will be listed in a Chicago Legal Tech Showcase Guide 2017

 

The Chicago Legal Tech Innovator Showcase will promote the law firms, legal aid orgs, and companies that are using technology to improve legal services in the Chicago area and highlight those whose innovations are exceptional. Whether the end result is better legal knowledge management, more affordable legal services, or improved metrics for decision making and analysis—and regardless of how the services are delivered—we want to hear what you are doing and so does Chicago’s legal community!

 

To learn more and submit go to: http://lpmt.chicagobar.org/chicago-legal-tech-innovator-showcase/

 

Attorneys: A Common Interest Agreement May Not Be Worth the Paper It’s Written On

It is a very common practice for counsel to co-defendants or co-plaintiffs to enter into agreements that shield their communications. The agreements are expressions of intent that the communications will be protected by the “common interest doctrine” that extends the attorney-client privilege to discussions with parties that share a common interest. Under the doctrine, the attorney-client privilege is not waived when such communications are made between parties sharing a common legal interest.

In Ambac Assur. Corp. v Countrywide Home Loans, Inc., 27 NY3d 616 (2016), the New York Court of Appeals expressly limited the application of the common interest doctrine to “co-defendants, co-plaintiffs or persons who reasonably anticipate that they will become co-litigants.…” In doing so, the Court of Appeals clarified that the policy underpinning the doctrine was to enable two or more parties to coordinate a common claim or defense without fear that such efforts might later become the subject of disclosure.

Despite the frequent use of common interest agreements, there are limitations that may vitiate the privilege entirely and leave communications unprotected and discoverable to the other side. In applying the holding in Ambac, a New York County Supreme Court judge recently ruled that the common interest doctrine did not apply to communications between counsel where one party assigned claims to the other.

In 59 S. 4th LLC v A-Top Ins. Brokerage, Inc., 2017 N.Y. Slip. Op. 30050[U] (Sup. Ct., N.Y. County, Jan. 10, 2017), an owner of a residential development project initiated a lawsuit against an insurance broker, alleging that the broker had misrepresented the scope of work the general contractor could undertake with its current insurance. In addition, the owner obtained an unconditional assignment of any potential claims the general contractor may have possessed against the broker regarding the procurement of insurance. Subsequent to the assignment and during the litigation, the plaintiff owner and (non-party) general contractor entered into a “common interest agreement” before entering into a series of discussions. That agreement contemplated that certain communications between the owner and the general contractor would be privileged and confidential. When counsel for the broker sought production of those communications, the owner refused to produce them citing the common interest doctrine. The broker then moved to compel.

In granting the broker’s motion, the Court reaffirmed the limited applicability of the common interest doctrine as set forth by the Court of Appeals in Ambac. The Court reasoned that, because the assignment completely divested the general contractor of any interest it may have had in the outcome of the litigation, the general contractor could not – by definition – become a co-plaintiff in the action. As a result, the entirety of verbal and written communications between the owner and general contractor were deemed not privileged and subject to disclosure to the other side.

Following the holdings in Ambac and 59 S. 4th LLC, any lawyer considering entering into a common interest agreement should be mindful that these agreements are not automatically upheld. Instead, careful practitioners must confirm whether their situation meets the requirements set forth in Ambac above, or they, too, may see their private communications deemed unprotected.

ARTICLE BY Joseph L. Francoeur & Michael S. Tripicco of Wilson Elser Moskowitz Edelman & Dicker LLP

© 2017 Wilson Elser

What It Takes to Make It Rain: Rainmakers Now, and Rainmakers of the Future

rainmakerIn the rapidly changing legal industry, it is no surprise that broad conceptions of what it means to be a rainmaker are also evolving. Dr. Heidi Gardner, Lecturer and Distinguished Fellow at the Center on the Legal Profession at Harvard Law School, has been conducting research over the past decade on collaboration in law firms. Her findings have also revealed insights into rainmakers: what makes them successful, how their roles changed over time, and how the next generation of rainmakers can be primed to succeed. She will be presenting her findings on the myths and realities of rainmakers at the Thomson Reuters 24th Annual Marketing Partner Forum.

Successful Rainmakers: Extroverts, Introverts, and Cultural Understanding

A common discussion regarding rainmakers, and leadership in general, is whether they are born or made. Based on her decades long research, Dr. Gardner’s answer to whether rainmakers are born is a resounding no. What makes someone a successful rainmaker is their ability to exhibit other sides of their personality, or other strengths and traits, depending on their audience. Rainmakers are typically discussed as being highly extroverted—charismatic, forceful, possessing great salesmanship skills. However, these traits themselves don’t make rainmakers successful, but rather it is their enormous ability to connect with whomever the buyer of their services. Because buyers are not a homogeneous group, most successful rainmakers are able to adjust or adapt their style appropriately.

Introverts are therefore not precluded from being successful because of their commonly thought of as “quiet nature”. In fact, introverts may make better rainmakers in some regard. Dr. Gardner points out that introverts tend not to think out loud and consider what they’re going to say before they say it. They often take time to reflect and appropriately listen to the person that is sitting across the table. This makes introverts very adept at identifying the buyer’s underlying issues and thinking through what it takes to connect the dots inside their firm to help clients solve complex issues. Dr. Gardner also points out that “Many buyers of legal services are also introverts, and they will appreciate someone who has similar a demeanor—not salesy or pushy.” Great rainmakers who are introverts are chameleons. It likely takes more energy for them to be outgoing and interact with strangers in a bigger setting, but they will have developed the capacity to be gregarious enough to make those connections.

Successful rainmakers have a foundation of being highly empathetic and have a strong motivation and interest in understanding other clients—it’s part of what makes them so successful. Dr. Gardner posits these skills are the “basic building blocks for being able to communicate across cultures” and make rainmakers more equipped to be successful with buyers from other countries. What’s required is an additional measure of cultural intelligence; successful rainmakers take part in and study the behavioral mimicry of their buyers in addition to having an appreciation for why different people approach different problems from different perspectives in general.

Evolution of Rainmaker: Toward Collaboration

During the course of Dr. Gardner’s research, she has discovered an interesting trend, or rather non-trend, in the legal industry: the rainmakers at law firms are largely the same people. During the past ten to twelve years, firms have moved away from mandatory retirement. Partners are staying longer than ever, so the rainmakers at firms now are the same ones from a decade past.

There is a new generation of rainmakers coming in now, but there is a lot of frustration in the profession regarding the structure and effectiveness of succession planning (which will be discussed further below). Despite the fact that the legal industry is currently dealing with the same cast of characters, one profound change Dr. Gardner has observed in the last decade involves a simultaneous broadening and narrowing of the role of the rainmaker.

According to Dr. Gardner, “clients increasingly expect a level of industry expertise” that requires attorneys to identify their practices with more specificity than ever. An attorney can no longer be an “environmental attorney”, but must become “an environmental attorney with a focus on extractive industries”, or an “intellectual property lawyer” must be an “IP attorney who specializes in the patent prosecution of computer hardware”. However, because clients’ problems are becoming increasingly complex, rainmakers are less able to be seen as the single go-to person for a particular client who puts together a team of experts in a single discipline, but rather as needing pull together teams of multidiscipline experts. So along with the narrowing of the rainmaker’s own field of expertise, successful rainmakers are broadening their ability to pull together diverse teams to tackle their client’s problems. The rainmaker is the conductor; as Dr. Gardner states: “The client counts on them to be a broker to all of the kind of experts that exist within the firm.”

In order to be successful going forward, rainmakers of the future need to be more collaborative as far as seeking out complementary experts to serve clients. A common obstacle that prevents rainmakers from being successful in this is the reliance on bringing in the “obvious suspects” as a matter of prestige in front of the client. But when called upon to do work on the case, these attorneys are nowhere to be found. Dr. Gardner believes that a key to building a successful team will be to find the hidden gems at the law firm—rainmakers should seek out attorneys who are hungry for client service opportunities. She acknowledges that doing this can be a risky. It’s easier to put someone in front of your client who has an existing reputation as a guru in their sector, but their value to the process is limited if their participation is not complete.

People who are truly intent on becoming successful rainmakers should be investing the time and the energy on others who are not necessarily thought of as the “obvious suspects”. They must access the deeper well of talent that exists and bringing them through the system so that they become committed, loyal, deeply engaged attorneys who are serving the client. To continue to be successful, rainmakers will need to take the risks and bring different kinds of people on board; as Dr. Gardner stated “The legal industry is too fragile to rely on just small pool of experts.”

Rainmakers – The Next Generation

As stated previously, Dr. Gardner has found that effective succession planning in law firms has been found wanting. Even though this generation of rainmakers has been around longer than ever, it is critical for the continuing success of firms to take a hard look at bringing up the new generation of rainmakers on deck. The most effect way to begin doing this is through mentorship. Dr. Gardner states, “People need to accept responsibility for developing a pipeline of talent.” She experienced some of the effective mentoring while she was working as a consultant at McKinsey’s Johannesburg office. She worked under a partner that would take her to all the important meetings, where she wasn’t expected to participate, but allowed to observe. During her time under the tutelage of this partner at McKinsey, she learned a tremendous amount about the ins and outs of client handling. Today’s rainmakers need to make those types of investments in people that will eventually come after them.

Up-and-comers also need to be willing to take responsibility for the trajectory of their career. Too often, Dr. Gardner has encountered partners who have tried to give junior partners or associates the opportunity to participate in learning experiences, who are asked “Can I bill the time?” This is the incorrect mindset to have on the road to becoming a successful rainmaker. Dr. Gardner elaborates: “If you’re trying become a successful rainmaker, you have to invest some non-billable time in your own development as well.” Both the willingness of existing rainmakers to mentor and the tenacity of of rising rainmakers will be what dictates the success of the next generation of rainmakers.

Learn more about the Thomson Reuters Legal Executive Institute Marketing Partner Forum here.

ARTICLE BY Nicole Cudiamat Minnis of The National Law Review / The National Law Forum LLC

Copyright © 2017 National Law Forum, LLC

Time Management for Lawyers: Did You Have a Week or Did the Week Have you?

time managementAs a business development coach for attorneys, no one understands the stress and demands placed on a legal practitioner better than I do. Imagine spending your entire day listening to multiple people complain about the demands being placed on them and additional stress that’s created when we discuss investing time in business development. It makes perfect sense why most attorneys shy away from their marketing activities.

Time challenges aside, you must know by now that nothing will have a greater impact on your personal and financial freedom than having your own book of business. Therefore, it’s never been more important to effectively manage your time to ensure you can fit in the billable hours and business development, while still having the balance with your family or personal time. Here are three key tips to ensure you have the growth and balance to create the career you’ve been dreaming of:

Time Tip #1:  Have a solid plan for business development

Other than doing nothing, the worst thing you can do as a lawyer is to approach business development willy-nilly.  Attending events, writing articles or even speaking can be ineffective if your audience isn’t aligned with your goals. You need to have a plan in place to ensure you are spending your time in the right places with the right people. Think about the types of buyers and strategic partners you need to meet. Ask yourself, where do they spend their time?  How do I get in front of them?  How many do I need to build relationships with to grow my book?

A good plan should lay out your goals, strategies and tactics to accomplish your objectives in the fastest time possible. Think of the plan as a GPS. Before we had this tool, we would drive miles out of our way before turning around. Now the GPS tells us when we made a bad turn, but how to get back on track. This is what a good plan will do for you.

Time Tip #2: Use your calendar to schedule time for business development

We schedule our meetings for a closing, deposition or a trial, then why not schedule time for business development. They are all important and need to get done, so treat them with equal importance. Based on where you are in your career, how much time you need to carve out and your goals to grow your book, there needs to be an emphasis on carving out time daily or weekly for business development. Here are a couple of thoughts and best practices to think about:

  • Look at your calendar to find times when you are less likely to be distracted by email, phone calls or other people in your office. Not to boast, but I get into my office three days a week at 6 am. This gives me a solid six hours a week when I can get emails out, leave voice mails or make contacts through LinkedIn. If you’re a night owl, that might be better for you.
  • Once you do get meetings on your calendar, be sure to use the meeting invite tool to ensure that these meeting stick.  Changing schedules and cancellations are sometime inevitable; however we can curtail them slightly by getting into someone’s calendar right away. If you’re not sure how to use this tool, ask the person in the office next to you. It’s become as popular as emailing.
  • Use the calendar to schedule EVERYTHING! If you have to make a call, write an email or follow up with someone, schedule it. As I mentioned earlier, you need to start treating your marketing activities the same way you treat the law. Think of your schedule like an advanced “to-do” list. The more you use your calendar to schedule things, the more you will actually do. Just seeing a follow up call from a networking event up on your screen will prompt you to follow through.

Time Tip #3: Always pick the low-hanging fruit first

With all of the networking groups, associations and coffee meetings to choose from, you may quickly find your time drained away from you. One of the first things I suggest to attorneys is to look closely at your network and find the easiest way to obtain new business. This might include meeting with existing clients to cross-sell, up-sell or find quality introductions. You also might have some family or friends who are in power positions, but you haven’t tapped into that yet. Whatever the situation, it’s critical to leverage these contacts first.

A few concerns that you might have with this approach is the possibility of “blowing” the opportunity or “disrupting” the relationship. While this is always a remote possibility, here are some soft and gentle approaches that might ease your mind when venturing into uncharted territory:

  • Be curious. You’re a lawyer right? Use that as your excuse to ask a thousand questions about this person’s business. Everyone has goals and challenges that they’d be more than happy to share with you. Just be a great listener and ask deeper open-ended questions to find a way to add value. Value might be discussing the law in your office over coffee and value might be referring them to someone who can help solve a problem today. Either way, you will have a much better idea of the opportunity for you to do business now or in the future.

An example of this would be at a family function where you see Uncle Dan every year. He owns     a $20 million dollar website company. You can ask him, “What do you love about your business?” and “What types of challenges do you have running a company of that size?” Once     you start Uncle Dan talking about his favorite subject, himself, you can keep asking deeper questions to identify a possible need or a question he might have for you on the legal side.

  • Ask for Advice. In this scenario, you are looking to better understand the mindset of a business owner or GC as you are working to grow your own practice. Ask some great questions to obtain their advice and help. It’s then possible that they might try to help you with your goals, make an intro to someone they know or allow you to share your knowledge to help with a problem within their own company.
  • Look to obtain an introduction from an existing client. Look, you’re good at what you do and your client is very happy. In addition, you’ve invested time taking her to lunch, a game, golfing, etc.  Maybe it’s time to ask for a high level introduction to someone in her network that might want to have a similar experience.

It might make sense to schedule a lunch with your client, and before getting off the call say, “I’m looking forward to our lunch on Friday. I do have a favor to ask that would be really meaningful to me. I know you are well connected and have been very happy with my work. Would you be open to introducing me around to one or two of your business associates?” This type of question is permission based and should be received positively. The worst that can happen is that she will say “no.” The best thing can be an intro to a new client that could make your year! Plus, if she does say “no,” it might be a wake-up call that you might need to work on your relationship building skills.

One way or another, you have to get your time under control. You can create a more focused approach to business development, utilize your calendar at a higher level or focus on low-hanging fruit. Whatever the case, don’t wait. Sometimes you just have to draw a line in the sand and say, “no more.”  The best thing you can do is to schedule time to get organized with your time.

ARTICLE BY Steve Fretzin of Sales Results, Inc.

Copyright @ 2016 Sales Results, Inc.

Lawdragon: Celebrating Ten Years Of Captivating Legal Journalism

For ten years, legal media company Lawdragon has been telling great stories about the law and lawyering.  Lawdragon embraced the power of the internet early on, creating content open to all who were interested in stories about the law.  Lawdragon has shown their commitment to high-quality legal journalism by crafting feature stories, a popular Question and Answer series, and an annual Lawdragon 500 Leading Lawyers in America devoted to attorneys, what they do, and what is possible with a law degree.

Lawdragon was founded by Katrina Dewey as a platform to tell stories about lawyers and lawyering.  Dewey began her career as a lawyer, but in her words, “I quickly discovered that I wanted to write about lawyers instead of practicing the law myself.”  She left her law firm associate job and “I did what I could to get hired as the lowliest journalist at the Daily Journal in California.” The “lowly” journalist position became Editor in 1996, a move that  Dewey describes as “a huge and lucky break.”   In 2005, with a desire to work more in the emerging online journalism market, Dewey founded Lawdragon. Daily Journal reporter John Ryan joined her and continues to serve as the company’s editor-in-chief.

Looking back at the first issue, Dewey describes the publication process as like  “giving birth.”  They wanted to kick off  the magazine in an edgy, interesting way, and one of the first stories was on the idea of term limits for Supreme Court justices.  Dewey remembers, “the week after we shipped our first issue, Justice Rehnquist passed away.”  Another memory of the beginning was Hurricane Katrina.  That disaster hit the same weekend the first publication went out, and it lingered as a sort of ghost each time Lawdragon has published an article that showcased the aftermath of the storm and the various legal issues that followed afterwards.  Looking back, Dewey describes the early days by saying, “we saw ourselves as an intrepid band of journalists, taking on larger lawyer outlets that were a little slow on the digital uptake.”  And that has been part of Lawdragon’s success.  Dewey saw the writing on the wall about how the media landscape was changing–and she wanted to create a place for features and profiles of lawyers with a company that had “digital in its DNA.” After ten years, the company has grown into a marketing and branding platform packed with fascinating tales of the law, using the power of the internet to allow anyone who is interested access to their stories. In fact, the content had become so popular among firms and lawyers that Lawdragon created a new “Lawdragon Press” division that provides paid content, marketing and branding services for firms.

Along those lines, when asked to describe Lawdragon’s audience, Dewey says, “We write for everyone who can read and has an interest in the law.”  The goal is to create intelligent, wide-ranging, eclectic content that shows what an attorney can do with a law degree.   Dewey says, “The goal is to write stories that everyone can access, but are still interesting enough to appeal to attorneys.”

And true to the mission, reading Lawdragon provides perspective on just how far-reaching a law degree can be.  With features on everyone from David Tolbert, President of the International Center for Transitional Justice, Adam Streisand of Sheppard Mullin, who litigated the trial that paved the way for the sale of the LA Clippers to Jodi Westbrook Flowers at Motley Rice, who has worked for over a decade for the victims of the September 11 attacks against  the financiers and and supporters of Al Qaeda, the subject matter is an abject lesson on just what the law can accomplish.

“We’ve tried to cast a wide net on our coverage of interesting lawyers and legal matters, which is why we’ve done original reporting on justice issues in places like South Africa, former Yugoslavia, Rwanda, The Hague and most recently Guantanamo Bay,” Ryan said.

One essential element of Lawdragon’s philosophy is an unwavering optimism about high-quality articles and reporting.  Dewey says, “We are optimists about good content; we believe there is a place for good content in the world.”  With an intrinsic belief that the law has the power to change people’s lives, right wrongs, and inspire as well as an understanding that lawyers who practice law have compelling reasons to do so, over the ten years of its existence Lawdragon has demonstrated a commitment to showcasing those stories.  Dewey says, “We are about the power of story, generally.  We want to show the individual stories of these attorneys who are advocates of the law, who all have their own perspective and ways of contributing to justice. ”

A natural outgrowth of that philosophy is the Lawdragon 500 Leading Lawyers.  This feature  highlights some of the most captivating attorneys and the work they do across the nation. While the Lawdragon 500 is probably the best known element of the publication, it is not a ranking system.  Through a careful process balancing editorial research by Lawdragon staff, law firm submissions, and an open online nominations form, the 500 are carefully curated, but not ranked.  Instead, the guide is a way for Lawdragon to showcase attorneys and their perspectives, how they contribute to justice, and how they use the law as a tool to advocate.

As a result of the commitment to quality content and great stories, Lawdragon articles have strong SEO content and can be a great platform for the attorneys who are featured. One thing Lawdragon provides for the attorneys that are featured is objective, third party, independent recognition of their skills and reputation.  Additionally, Lawdragon publishes an annual print publication, giving attorneys and their clients something to hold, beautiful pictures to see, and amazing articles to read. As Carlton Dyce of Lawdragon points out, “Our print publication is great for attorneys to have in their offices, handy for their clients to read while they are waiting.  It’s a great way to showcase the attorney they are about to see.”  ​

The tenth edition of the Lawdragon 500 will be released soon, an exciting milestone for the company.  Over the years and after many compelling stories, Lawdragon remains excited about its core mission–telling stories of lawyers and lawyering. With millions of lawyers doing captivating work in many fields there is no shortage of stories, and Lawdragon remains committed to telling them.

Article by Eilene Spear of the National Law Review
Copyright ©2015 National Law Forum, LLC

Once and Future Legal Profession – 10 things (plus 4) Lawyers Had in 19th Century They Should Get Back

Coming out of the 19th Century, practicing law was an almost unimaginably great way to live.

Orginal-Sin

  • The work was knowledge work and, by and large, it was challenging.
  • The practice entailed a craft to be mastered – both in terms of knowledge and experience, and also in terms of analytical and persuasive skills. Lawyer skills enhanced life skills. They developed judgment.
  • The work was meaningful. It made a difference in the lives of clients who had personal connections with their lawyers.

  • The profession itself was set apart. Its members had attended the same or similar schools, and had read and studied the same literature and culture. There was a high level of trust among practitioners.

  • Many lawyers practiced by themselves, controlling their own comings and goings, while regularly associating fellow lawyers as needed. Others practiced in small, personal partnerships. Experienced lawyers helped new lawyers learn the practice, regardless of firm memberships.

  • Lawyers’ work contributed in a vital way to the system of justice, and also to a growing system of business and commerce.

  • Lawyers were compensated based on value delivered and the clients’ ability to pay. There was a grounded sense that lawyers had an obligation to render services for the public good without pay in appropriate cases.

  • There were no timesheets. There was no billing software. There were no hourly rates, and no billable-hours quotas.

  • Lawyers commonly earned a good living, often by investing alongside their clients in new ventures and being involved in the operations of those and other businesses; or, more simply, by farming while they also practiced law.

  • Commonly, lawyers played leading roles in the civic and cultural affairs of their communities, both as a matter of interest and perceived duty, and also because it promoted their law practices.

  • The technologies used in legal work imposed a slower pace on professional life.

  • Lawyers’ public and private roles were not separated. Few perceived a need to balance different aspects of their lives.

  • There was little need for lawyers to get up early in the morning.

  • For the most part, lawyers were not called upon to lift or carry heavy things.

Why would anybody screw that up?

Current developments in the legal profession and in the broader workplace offer the hope that a 21st Century version of what was lost can be recaptured.

Legal services technologies and artificial intelligence, alternative legal services providers, networking capabilities, and communications technologies – these are tools that relieve practitioners of the need to perform high-volume, routine tasks. They enable new forms of collaboration. They can support newly envisioned, smaller, more cohesive, and more creative professional associations.

This will require differently trained lawyers, and new kinds of legal services providers. For lawyers and the schools who prepare them, it will require rethinking legal education, and a new understanding of organizational development, talent management and professional development.

Those things will come, albeit not rapidly. Some heavy lifting may be required.

Article By Edward C. Winslow III of Brooks, Pierce, McLendon, Humphrey & Leonard, LLP
Copyright © 2015, Brooks, Pierce, McLendon, Humphrey & Leonard LLP