Asking for Business From a Distance

Legal services are increasingly provided to companies located across the country or even across the globe from the firms that serve them; and this creates a new level of complexity when it comes to business development. Maybe you and your team flew to Dallas or Tokyo to make pitch. You think it went well, but now you need to figure out how to follow up effectively long distance. Similarly, you may want to do additional work for an existing client located a thousand miles away.  Should you fly out and see her, or is reaching out by phone sufficient? Such dilemmas are common in the modern world.  Here are a few factors to consider when asking for business from a distance.

Asking for business feels a lot weightier for the attorney than for the client.

An attorney may think that following up after a pitch or discussing the possibility of starting a new matter is a complex, delicate conversation and, therefore, it would be better to communicate in person. It is important to remember, however, that the conversation will probably feel very different to the attorney than to the client. A lawyer may find initiating such discussions to be stressful, like they are an evaluation of one’s expertise, worthiness, or likability.  Yet, if the lawyer is doing it well, such a conversation should not be dramatic or difficult from the client’s perspective. If anything, it should be the opposite. The attorney is offering help, giving clients a chance to talk through the challenges they are facing, and hopefully bringing empathy, an outside perspective and relevant expertise, all of which is appreciated.  If there is a good fit between the client’s needs and the legal services offered, the discussion naturally progresses towards a sale, regardless of whether one is on the phone or in person.

Words don’t matter as much as tone of voice.

Experience tells us that we can sense a great deal about another person’s mood and attitude simply from hearing his or her voice telephonically. Think about the last few times you spoke to customer service representatives on the phone. They generally speak from call scripts. Did you notice that different people can communicate the same message, even use the same exact wording, but you as the customer can hear it very differently depending on who is speaking? One person may seem kind and approachable, another may seem “checked out” and uncaring, while a third may seem cold but capable. Our desire to do business with a company is heavily influenced by our sense of trust and connection to the customer service person—and that is largely a matter of tone, pace, intonation and other intangible factors that we pick up on almost instantaneously when interacting with others but which we are less attuned to in ourselves.

We have all heard that only 7% of your message comes through your words, 38% from voice and vocal cues and 55% from body language.  This statistic, based on Dr. Albert Mehrabian’s research, is frequently quoted out of context and applied to situations far outside the scope of the research, such as giving a speech or arguing a motion in front of a judge. Nevertheless, in situations such as business development where intent, credibility and character matter most, the tone of voice does make or break our effectiveness. The fact that we can’t rely on visual input doesn’t change this; it only makes the vocal segment of the non-verbal communication that much more important.

Your tone and other vocal cues are determined by your intention, attitude and approach. 

Even if you accept the premise that clients’ impressions of, and desire to do business with, you will be heavily influenced by your voice, you still may be wondering what to do about it. Some people recommend speaking slowly, remembering to breathe, and varying pitch and pacing, all of which is good advice, as far as it goes. However, it is like a doctor addressing the symptoms rather than the underlying cause. When a lawyer speaks too fast or forgets to breathe, it is generally because he is thinking about himself, his own nervousness, or his desire to achieve a particular outcome, rather than about the client and her needs.

When a lawyer goes into a conversation genuinely focused on the client and seeking to understand her challenges, desires, and perspectives, he naturally communicates better. The intention to be helpful and collaborative generally pushes aside self-doubt and makes people more relaxed, flexible and responsive. Consequently, one of the most valuable things you can do before calling a client or potential client to ask for business is to make a deliberate choice about your intentions and how you want to approach the conversation.  This creates a subtle but important shift in your demeanor and attitude, which automatically alters the tone, pitch and other vocal nonverbal signals and, in doing so, enables you to have more effective conversations, even at a distance.

Individuals’ affinity for phone conversations varies.

While some people hate the telephone, many people are just as comfortable on the phone or teleconference as they are in person. Don’t assume that your client or prospective client has the same attitude that you do. Look to the client’s behavior as a guide. Does he prefer to wait for in-person meetings, or does he like to talk through things by phone? Also, if you have any doubt, you can always ask him directly. For example, you could say, “I have an idea for how my firm may be able to help you with _______.  I’m planning to visit you in July. Would you prefer to wait until then to discuss this or would you rather talk sooner?” People like having a choice, and the most effective professionals of any kind are those who understand that people are different and adapt their approach accordingly.

Most of the time, any form of asking for business is preferable to none at all.

A final factor to consider when asking for business from a distance is that while attorneys often worry about finding the right words or the right moment to follow up or initiate a conversation, this is one of the many situations where it is better to just do it.  No matter how perfectly you conduct the conversation or how great your relationship, some companies will need your services and some will not.  All you can do is ask.  While this is no different than the situation when following up with clients at a closer proximity, I find that the distance becomes one more rationale for not having those uncomfortable conversations. Human beings tend to put off activities and discussions that feel awkward and our minds are excellent at finding excuses.  Don’t turn distance into an artificial obstacle.

Article By Anna H. Rappaport of Excelleration, LLC

© 2008-2016 Anna Rappaport. All Rights Reserved

Improved US – Cuba Relations Create Potential FCPA Risks for US Companies Looking to do Business There

The normalization of relations between the United States and Cuba offers potential lucrative business opportunities for companies that are prepared to meet Cuba’s unique corruption risks. On December 17, 2014, President Barack Obama and Cuban President Raul Castro announced the restoration of full diplomatic relations between the United States and Cuba; an act which President Obama stated was aimed at ending “an outdated approach that for decades has failed to advance our interests” and that would instead begin to “normalize relations between our two countries.” In furtherance of that goal, on January 16, 2015, the U.S. Government eased travel restrictions between the U.S. and Cuba and, perhaps more importantly, reduced certain obstacles that prevented American companies from doing business on the island. For example, U.S. businesses will be allowed to provide financing to Cuban small businesses and sell communications devices, software, and hardware services among other things. Indeed, American companies in the aviation, telecommunications, or financial industries stand to gain a substantial foothold in a burgeoning new – and potentially lucrative – Cuban market.

Before diving in head first, however, American companies must recognize and prepare for the significant Foreign Corrupt Practices Act (“FCPA”) risks inherent in doing business in Cuba. But first, a quick refresher on the FCPA. Generally speaking, the FCPA prohibits bribing foreign officials for the purpose of obtaining or retaining business. The term “foreign official” is broadly defined and includes, among other things: (i) officers or employees of a foreign government or any department, agency, or instrumentality thereof; or (ii) anyone acting in an official capacity for or on behalf of said foreign government or any department, agency, or instrumentality thereof.

Doing business in Cuba presents a host of unique FCPA risks, three of which are particularly worth highlighting. First, while the Cuban government has taken steps to permit its citizens to open small businesses, the vast majority of Cuba’s economy remains government-owned and controlled. Former economist for the International Monetary Fund, Ernesto Hernandez-Cata, estimated that the Cuban government, directly and through state-owned businesses, accounts for more than 75% of Cuba’s total economic activity.  Essentially, the state is involved in virtually all of the island’s major businesses, including services typically run by the private sector in the U.S. In other words, American companies will almost certainly deal with foreign officials when doing business in Cuba.

Second, Cuban government officials are notoriously undercompensated. On average, government officials earn between $20 and $40 per month while, in some cases, being tasked with administering Cuba’s multi-million dollar business ventures. Unsurprisingly, low wages and extensive state involvement in business matters have incentivized some Cuban officials to solicit bribes (and, occasionally, have tempted foreign companies to offer them). For example, in September 2014, Cy Tokmakjian, Claudio Vetere, and Marco Puche, executives at Tokmakjian Group, a Concord, Ontario, Canada-based company,  were convicted of using bribery and other means to avoid paying taxes. They received sentences of 15, 12, and 8 years respectively as part of President Raul Castro’s crack down on graft and other forms of corruption. Tokmakjian, Vetere, and Puche may not be subject to the FCPA, but similar payments by American companies in Cuba would likely expose the companies and employees to FCPA liability.

Third, and finally, Cuba suffers from a widespread lack of transparency. The 2015 Transparency International Corruption Perceptions Index ranked Cuba 56th out of 168 countries surveyed, tied with Ghana.  American companies may find themselves in the dark with respect to Cuban regulations and procurement practices. As a result, companies may not be aware of inconsistent and/or improper application of Cuban regulations. Worse still, American companies may be unaware of the true purposes for certain payments. For example, a company may be informed that a particular payment is required to obtain a specific license but find out that the money was directed to a foreign official.

Note that the FCPA does have a knowledge requirement; however, knowledge may be demonstrated by establishing awareness of a high probability of impropriety, unless the person actually believed that there was nothing improper in that instance. See 15 U.S.C. § 78dd-1(f)(2). The “high probability” standard was intended to ensure that the FCPA’s “knowledge” requirement included instances of “conscious disregard” and “willful blindness.” H.R. Rep. No. 100-576, at 919 (1988) (citing United States v. Bright, 517 F.2d 584 (2d Cir. 1975)); see also United States v. Kozeny, No. 09-cr-4704, 2011 WL 6184494 (2d Cir. Dec. 14, 2011). Furthermore, the vast majority of FCPA cases settle before trial which means that there is little case law that speaks specifically to the FCPA’s scienter requirement. As a result, the DOJ and SEC have broad discretion to attempt to settle cases based on facts that may be out of tune with a strict interpretation of the FCPA’s scienter requirement.

At a minimum, reducing FCPA risks in any foreign country requires that companies take a few basic, but important, steps: conduct a risk assessment of the country, the industry, and the market; use the assessment to prepare a potent anti-bribery policy aimed at both prevention and remediation; implement the policy and disseminate it to all employees; adequately train employees and company agents; and modify the policy when necessary to ensure adequate protection in a changing market.

More specifically, doing business in Cuba – a market with which few American companies are deeply familiar – requires a thorough risk assessment. The quality of the analysis can mean the difference between a deficient anti-bribery policy and one that adequately shields the company from risk exposure. Accordingly, American companies should seek the advice of counsel before, during, and after the assessment. Counsel with experience in dealing with FCPA issues will be well-equipped to make sure the risk analysis is efficient, comprehensive, and targeted. This information will prove invaluable when designing an anti-bribery policy. Furthermore, experienced counsel can assist in implementing the policy, modifying the policy to ensure ongoing effectiveness, and representing the company should any FCPA-related issues arise.

Article By Philip J. Bezanson, Glen A. Kopp & Jeffery B. Vaden of Bracewell LLP
© 2016 Bracewell LLP

Department of State Issues May 2016 Visa Bulletin

The Department of State (DOS) has released the May 2016 Visa Bulletin with the Application Final Action Date chart for employment-based applications which reflects some modest movement for some applicants.

The second and third preference categories for China-mainland born applicants had no movement. The second and third preference categories for India move ahead a few weeks to Nov. 22, 2008, and Sept. 1, 2004.  There was no movement in the third preference for all chargeability areas except those listed, and no movement for Mexico. The third preference and other workers categories for the Philippines move ahead a few months to Aug. 8, 2008.

There was no movement in the Dates for Filing chart for employment-based categories with the exception of the other workers category for China-mainland born applicants, which moved up several months to April 1, 2008.

The May 2016 Visa Bulletin states that “during the past month, there have been extremely high levels of Employment-based demand in most categories for cases filed with U.S. Citizenship and Immigration Services for adjustment of status. If this sudden and unanticipated change in the demand pattern continues, it could impact final action dates in the coming months and possibly require corrective action in some.” The DOS also notes an oversubscription of applicants from El Salvador, Guatemala, and Honduras.

As previously reported, last month prospective adjustment of status applicants have been advised to use the Application Final Action Date chart to determine their eligibility to file applications, despite previous guidance that the Dates for Filing chart could be used. Greenberg Traurig will continue to monitor the movement of Visa Bulletins and consequences on eligibility for filing.

APPLICATION FINAL ACTION DATES FOR EMPLOYMENT-BASED PREFERENCE CASES

IBI May 2015 1

DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS

IBI May 2015 2

Article By Kristen T. Burke of Greenberg Traurig, LLP
©2016 Greenberg Traurig, LLP. All rights reserved.

Friend Request Denied: Judge Asks Attorneys to Refrain from Social Media Searches of Jurors

In late March 2016, a California federal judge asked both Google, Inc. and Oracle America, Inc. to voluntarily consent to a ban against Internet and social media research on empaneled or prospective jurors until the conclusion of the trial.

The case at issue is Oracle America, Inc. v. Google, Inc., a long-standing copyright infringement suit in which Oracle claims Google’s Android platform infringed various Oracle copyrights. This “high-profile lawsuit” has been making its way through the courts since 2010. Before the voir dire commenced in the current proceedings before the Northern District of California, Judge William Alsup realized that the parties intended to “scrub” Facebook, Twitter, LinkedIn, and other social media sites to gain personal information about the potential jurors.

In response to this realization, Judge Alsup issued an order asking the parties to voluntarily refrain from searching the Internet and social media accounts for personal information about the empaneled or prospective jurors prior to the verdict. While Judge Alsup stated that it was within the discretion of the court to order a complete ban, the court stopped short of issuing an outright ban.

Despite his objections to Internet research, Judge Alsup accepted the premise that social media and Internet searches of jurors are useful to attorneys. Information pulled from these searches can help attorneys during the voir dire process. For example, attorneys can use this personal information strategically while exercising their preemptory challenges or can rely on personal information about a potential juror to support a for-cause removal. Even during the trial, ongoing searches of social media sites can shed light on whether a juror gives or receives commentary about the case.

Despite the potential benefits, however, Judge Alsup issued three reasons in support of restricting these Internet searches.

  • First, if jurors knew that attorneys had conducted Internet searches of them, jury members would be more likely to stray from the Court’s admonition not to conduct Internet searches about the case. Because this high-profile case has been widely discussed in the media, the court warned of an “unusually strong need” to prevent jury members from conducting Internet searches.

  • Second, if attorneys learn of personal information about jury members from social media websites, they may be tempted to make personal appeals during arguments and witness interrogations in an attempt to pander to a jury member’s interests. The court warned that this behavior was out of bounds.

  • Third, the privacy of the jury members should be protected. Judge Alsup noted that empaneled or prospective jurors are not “celebrities,” “public figures,” or “a fantasy team composed by consultants.” Because jurors are citizens willing to serve their country and bear the burden of deciding disputes, Judge Alsup emphasized that their privacy matters.

In his order, Judge Alsup referenced Formal Opinion No. 466 from the American Bar Association. This formal opinion held that it is ethical, under certain restrictions, for attorneys to conduct Internet searches on prospective jurors. The ABA determined that a “passive review” of a juror’s website or social media page (i.e., a review that does not make an “access request” and of which the juror is unaware) is not considered an ex parte communication with jurors. Judge Alsup noted, however, that just because these searches are not unethical does not mean that attorneys have an inalienable right to perform these searches.

According to Judge Alsup’s order, if the parties do not voluntarily agree to refrain from Internet and social media searches, they will have to abide by certain rules during the jury selection process. First, the attorneys will be required inform the jury pool upfront about the nature of their searches prior to jury selection. Also, once the attorneys have made this announcement, they will then have to allow the potential jurors a few minutes to adjust their social media privacy settings on their mobile devices.

In short, the judge’s order emphasized the court’s “reverential respect” for juries, asking the attorneys to refrain from performing Internet and social media searches for jurors’ personal information until the trial is over.

Article By Russell Kostelak of Proskauer Rose LLP

© 2016 Proskauer Rose LLP.

California Court to PGA Tour Caddies: You’ll Get Nothing and Like It!

As the full swing of the PGA season rounds the corner, and with the azaleas blooming at Augusta, the trusted confidants of golf’s premier players have already missed the cut.

Last month, the District Court for the Northern District of California dismissed a lawsuit filed against the PGA Tour by a group of 168 caddies contending that the Tour may not require them to wear shoulder-to-thigh length “bibs” during tournaments, many of which feature the name of the golfer for whom the caddie works (on the back) and the names and logos of tournament sponsors (on the front) (Hicks v. PGA Tour, Inc., 2016 WL 928728 (N.D. Cal. Feb. 9, 2016)). Among other arguments, the caddies alleged that the Tour missed the fairway and violated their “right of publicity” by using them as “human billboards” for tournament sponsors without compensation.

California, like many other states, recognizes both a statutory and a common law right of publicity. In California, to state a claim for common law misappropriation in violation of the right of publicity, a plaintiff must allege that defendant used the plaintiff’s name, likeness, or identity without plaintiff’s consent, to the defendant’s advantage, causing harm to plaintiff. The caddies argued that they had never consented to the Tour’s use of their “likeness and images” in connection with the corporate-sponsored bibs during television broadcasts of tournaments. Lawyers for the caddies estimated the value of chest-front advertising on caddie bibs at $50 million per Tour season, of which the caddies received no cut.

U.S. District Judge Vince Chhabria dismissed the caddies’ lawsuit last month with prejudice, writing that “(t)he caddies’ overall complaint about poor treatment by the Tour has merit, but this federal lawsuit about bibs does not.” The court’s ruling relied heavily on the contract that each caddie must sign with the Tour to work an event. The form contract provides that “(c)addies shall wear uniforms…as prescribed by the host tournament and the PGA TOUR,” but does not explicitly require a caddie to wear a tournament bib. The caddies argued that the contract’s particular silence as to bibs precludes the Tour from requiring the caddies to wear the advertisement-laden smocks between the ropes. As a matter of contract interpretation, Judge Chhabria cited the general rule that even where disputed contract language appears ambiguous, the ambiguity can be resolved as a matter of law where context reveals that the language is susceptible to only one interpretation. The court found context in the caddies’ own admission that the Tour has required them to wear bibs for decades as the primary part of their “uniform.” Therefore, concluded Judge Chhabria, the only reasonable interpretation of the contract is that caddies agreed the Tour could make them wear bibs.

Resting upon this interpretation of the Tour contract, the court ruled that the critical element in the caddies’ right of publicity violation claim was not satisfied, namely, a lack of consent. Because the court interpreted the caddie contract as requiring the caddies to wear bibs, and when read with a provision of the contract whereby caddies assign to the Tour their “individual television, radio, motion picture, photographic, electronic … and all other similar or related media rights” with respect to their participation in Tour events, the court concluded that the caddies consented to the use of their images at tournaments, including any logo on the bibs. Thus, tapping in an easy two-foot putt, the court dismissed the caddies’ claim relating to the right control the commercial use of their likenesses.

Even if the district court’s decision is upheld on appeal, all is not lost. Caddies still possess a long game and can always individually negotiate with sponsors to endorse products and place advertisements on other highly visible parts of the uniform, such as hats and shirt sleeves. Further, the court apparently did find some merit in the caddies’ allegations of poor treatment by the Tour, which may earn them a few strokes in the court of public opinion. So, they got that going for them, which is nice.

Article By Litigation Practice Group of Proskauer Rose LLP

© 2016 Proskauer Rose LLP.

California Court to PGA Tour Caddies: You'll Get Nothing and Like It!

As the full swing of the PGA season rounds the corner, and with the azaleas blooming at Augusta, the trusted confidants of golf’s premier players have already missed the cut.

Last month, the District Court for the Northern District of California dismissed a lawsuit filed against the PGA Tour by a group of 168 caddies contending that the Tour may not require them to wear shoulder-to-thigh length “bibs” during tournaments, many of which feature the name of the golfer for whom the caddie works (on the back) and the names and logos of tournament sponsors (on the front) (Hicks v. PGA Tour, Inc., 2016 WL 928728 (N.D. Cal. Feb. 9, 2016)). Among other arguments, the caddies alleged that the Tour missed the fairway and violated their “right of publicity” by using them as “human billboards” for tournament sponsors without compensation.

California, like many other states, recognizes both a statutory and a common law right of publicity. In California, to state a claim for common law misappropriation in violation of the right of publicity, a plaintiff must allege that defendant used the plaintiff’s name, likeness, or identity without plaintiff’s consent, to the defendant’s advantage, causing harm to plaintiff. The caddies argued that they had never consented to the Tour’s use of their “likeness and images” in connection with the corporate-sponsored bibs during television broadcasts of tournaments. Lawyers for the caddies estimated the value of chest-front advertising on caddie bibs at $50 million per Tour season, of which the caddies received no cut.

U.S. District Judge Vince Chhabria dismissed the caddies’ lawsuit last month with prejudice, writing that “(t)he caddies’ overall complaint about poor treatment by the Tour has merit, but this federal lawsuit about bibs does not.” The court’s ruling relied heavily on the contract that each caddie must sign with the Tour to work an event. The form contract provides that “(c)addies shall wear uniforms…as prescribed by the host tournament and the PGA TOUR,” but does not explicitly require a caddie to wear a tournament bib. The caddies argued that the contract’s particular silence as to bibs precludes the Tour from requiring the caddies to wear the advertisement-laden smocks between the ropes. As a matter of contract interpretation, Judge Chhabria cited the general rule that even where disputed contract language appears ambiguous, the ambiguity can be resolved as a matter of law where context reveals that the language is susceptible to only one interpretation. The court found context in the caddies’ own admission that the Tour has required them to wear bibs for decades as the primary part of their “uniform.” Therefore, concluded Judge Chhabria, the only reasonable interpretation of the contract is that caddies agreed the Tour could make them wear bibs.

Resting upon this interpretation of the Tour contract, the court ruled that the critical element in the caddies’ right of publicity violation claim was not satisfied, namely, a lack of consent. Because the court interpreted the caddie contract as requiring the caddies to wear bibs, and when read with a provision of the contract whereby caddies assign to the Tour their “individual television, radio, motion picture, photographic, electronic … and all other similar or related media rights” with respect to their participation in Tour events, the court concluded that the caddies consented to the use of their images at tournaments, including any logo on the bibs. Thus, tapping in an easy two-foot putt, the court dismissed the caddies’ claim relating to the right control the commercial use of their likenesses.

Even if the district court’s decision is upheld on appeal, all is not lost. Caddies still possess a long game and can always individually negotiate with sponsors to endorse products and place advertisements on other highly visible parts of the uniform, such as hats and shirt sleeves. Further, the court apparently did find some merit in the caddies’ allegations of poor treatment by the Tour, which may earn them a few strokes in the court of public opinion. So, they got that going for them, which is nice.

Article By Litigation Practice Group of Proskauer Rose LLP

© 2016 Proskauer Rose LLP.

Dane County Judge: Wisconsin’s “Right to Work” law unconstitutional

wisconsin supreme courtIn a decision issued April 8, 2016, Dane County Circuit Court Judge William Foust ruled that Wisconsin’s “Right to Work” law violates the Wisconsin Constitution because it takes union property without just compensation (i.e., it is an unlawful taking).

According to the Wisconsin Manufacturers & Commerce (WMC), which played a leading role in seeking and attaining passage of the law, Judge Foust’s decision “is an act of blatant judicial activism that will not withstand appellate review.” Wisconsin Attorney General Brad Schimel also issued a statement expressing disappointment in the ruling and stating that he is “confident the law will be upheld on appeal.”

Judge Foust ruled that the law unconstitutionally takes union property by forcing a union to represent workers who are not members of the union and do not pay dues to the union. Judge Foust found the State’s argument that “neither federal law nor state law requires a union or other entity to become an exclusive bargaining representative” to be “disingenuous.” According to Judge Foust, the unions have no choice in representing all employees because, by law, their existence depends upon being the exclusive bargaining agent for any particular bargaining unit.

A copy of Judge Foust’s order is available here.

Article by: Rufino Gaytán of Godfrey & Kahn S.C.
Copyright © 2016 Godfrey & Kahn S.C.

The Future of Law Firm Marketing with Deloitte CMO Diana O’Brien [PODCAST]

In this podcast interview, John McDougall of McDougall Interactive and legalmarketingreview.com and Nicole Minnis of The National Law Review speak with LMA keynote speaker Diana O’Brien about her role as CMO of Deloitte, the future of law firm marketing, marketing technology, and the challenges that law firms face with traditional and digital marketing.

John McDougall: Hi, I’m John McDougall, CEO of McDougall Interactive, and I’m here today with Nicole Minnis, Lead Publications Manager at the National Law Review. And our guest is Diana O’Brien, the Chief Marketing Officer of Deloitte. Diana will be the Keynote Speaker at the upcoming Legal Marketing Association annual conference on April 11th – 13th, in Austin, Texas. Welcome, Nicole and Diana.

Nicole Minnis: Thanks John, hi, and hello to you, Diana, as well.

Diana O’Brien: Thanks John and Nicole, it’s great to be here today.

John: Absolutely, and Diana, thanks for taking the time. You are a fairly new CMO, and I know that you came to this role from a non-marketing background — given that, what inspired you to take this new role as CMO of Deloitte?

Diana: Well “inspired” is the right word. First, my passion was really clients. I’ve spent 30 years in client service. That’s really where I learned to listen to clients, and respond, and react to what it is that they needed, and that was really the impetus to me appreciating and becoming, I think, a champion for clients within our firm. So today being the Deloitte CMO, I’m really the champion for all of our clients, and I’m responsible for helping out stake-holders within the firm whether they be our newest associates to our partners, be responsible for listening and understanding the collective needs of all of our clients and creating an environment where our clients get every day, in every interaction, a world-class experience in every touchpoint. So the client experience is something that I’m just deeply passionate about.

The second thing I sort of married up with that is I had the chance, after having that career, to take on a responsibility of being the Managing Director of Deloitte University – which is our learning center in Texas – and that’s where I came to appreciate and recognize that the world has changed. What worked yesterday doesn’t work tomorrow. We need to create environments where people can thrive, and grow, and continue to evolve, and I had the chance to do that for all of the learning. But, really, the same is so true for marketing today. We’re moving from this world where you could just push out this sort of one-way message where you were communicating what you wanted to communicate and push it out there and hope people heard it, to this more interactive, 24/7, broader business connection, and creating an environment where your clients thrive and you’re part of that active engagement. So it’s not really a back office anymore, it’s right front and center with the clients, and it’s a new capability that you need in order to do that.

So when you marry those two things up, it was a perfect choice for me and I was excited to take it on.

John: Yes, it sounds like empathy and inspiration.

Diana: Yes.

John: And what’s your mandate as CMO?

Diana: It’s really simple. It’s really to drive growth for the firm; it really couldn’t be any more simple than that. What I would say that maybe would resonate, I think, for a lot of marketers is that it does still start with the Deloitte purpose, and I do think that you don’t grow unless you’re grounded in your purpose. So, a good CMO is always going to know what that is and be able to inspire all their professionals to link back to that. So, the Deloitte purpose is to make an impact that matters with our clients, our people, our communities. So, when I think about what my job is and I think about the 70,000 professionals that work at Deloitte, I need all of them every day to go out and strengthen our brand to grow the firm by showing up to our clients in a consistent but personalized way that creates strong relationships, that builds powerful experiences, delivers unique insights that helps our professionals and our clients establish the kind of connection that is sustainable over time so we can really help as problems and issues go over time.

Changes to the Marketing Organization at Deloitte

John: And what changes have you made to the marketing organization in order to execute on that mandate?

Diana: Gosh, I’ve been busy with that.

John:  Quite a few.

Diana: We’ve streamlined a lot. We have really focused on optimizing the resources but we’ve been driving towards a new model. What’s interesting about Deloitte in this regard – and I don’t know that everyone’s appraised this quite yet but – we encompass, obviously, the most traditional elements, which is the communications and marketing capabilities, but all of the go-to market assets, if you will, sit under me as well. So, our go-to market channels [including our managing partners in key markets, our client leaders and our industry practice leaders] and thought leadership, public policy, corporate citizenship, they have been put under me as well and so that’s unique and actually I’m hearing some of that. I’ve met with a few other CMOs that are doing some of the same things and have had some of the same responsibilities, and so what I like about it is that it’s really this combined essence of, really, how does the market — How do you drive growth? How do you really develop a marketplace?

The other thing we think is really important is digital. Obviously we have a strong digital practice and that serves our clients, but it also serves our in-house marketing team and that’s key to us being able to deliver our brand every day and create those kinds of experiences that we were talking about and deliver those insights. So I work very closely with the consultative arm of our Deloitte digital practice.

John: That’s a lot of stuff going on. That’s fantastic. Go ahead, Nicole.

The Future of Law Firm Marketing

Nicole: Shifting gears slightly and thinking about our legal marketing listeners more specifically, what do you see on the horizon in terms of transformation or potential paradigm shifts for law firm marketing?

Diana: It’s so interesting, Nicole, I think in many ways. Professional services, accounting, and consultancies like our firm and law firms, have some real similarities in this regard. I think digital marketing is going to continue to grow and that’s really for all of us, it’s not just legal markers. But we need to face it in a way that maybe some others don’t have the same issues, partly because we come from professionals where we’re highly skeptical. That’s just our profession, so we have to maybe be a bit more willing to get into the data around the success of digital and how that may in fact change us and work to be a better adopter of it. With some of the increased competition that’s there, I think if we don’t do that, the professional services environment has some challenges to stay ahead of the game, and that’s particularly going to be the case, I think, with talent. That’s going to be one of the big challenges if we don’t address that.

Certainly social media, obviously law firms are doing things in social media, but I think it will continue to be a big focus. It certainly has been for us. We have worked to become more engaged and use more outside platforms – and my own micro-site is an example – to sort of meet people where they are. We use LinkedIn more than we’ve ever used before to help us connect into the marketplace.  We’ve all got to figure out how to have our sites optimized for mobile so content can be more easily consumed. And again, when you come from a place where maybe adaptability is a little lower and skepticism is a bit higher, the mindset of professional services firms where we do have some of that, we have to work harder I think to embrace some of those things.

Marketing Technology

Nicole: It sounds to me like Deloitte is way ahead of the curve in terms of digital technology so I commend you and your firm on those efforts. What marketing technology do you see is getting the most buzz right now besides some of the things that you’re already working on?

Diana: It’s a good question. I have two things I want to say on this, one social listening is obviously incredibly important in content management systems or continuing to evolve publishing platforms, and it’s important that we stay thoughtful of that, but the number of channels that you now have to participate in is exhaustive, and it’s just growing, and I think it’s important that we not become sort of overwhelmed with the technology, but really solve specific business problems. One of the things I think that law firms can do is I think it’s important that they continue to differentiate themselves with eminence, and thought leadership, and specific things that you can differentiate yourself on. And one of the things I think that are particularly useful are – maybe not as technology-buzzing, if you will – but blogs and podcasts. I think they’re low-cost communication tools that really are a more direct engagement, and can connect more easily sometimes with the targeted audience that you want with the specialized information that you have.

Sometimes I think we can become sort of enamored with the technology. When I first took on I felt like, maybe the first four months, I was a bit enamored with the technology, but I kept coming back to, “Well, what problem am I really trying to solve for that’s going to drive my business?” While I think there are some interesting things out there that we all need to be aware of, I think it’s important to keep coming back to, “What problem am I solving?”

Marketing and Thought Leadership

John: As a follow-up to that, I love hearing you talk about thought leadership. I own a site, authoritymarketing.com, and we do a lot of work around the idea that your experts and your thought leaders, especially in professional services, will help propel your blogging, and podcasting, and marketing, and SEO, and social media. Would you say that those blogs and podcasts can also then be used by your sales people in business development, and is it kind of streamlining your efforts or killing two birds with one stone by doing both of those things at once? Not just doing the blogs and podcasts for their own right for their search in social benefits and all of that, but to also potentially use for biz dev?

Diana: Yes, there’s no question, and actually we did something interesting this last year. We actually did an active online course on a couple key topics that we felt we were expert in, and what I feel happened as a result of that is the level of engagement that we were able to achieve. It’s actually really a form of marketing in today’s world which is more interactive. It isn’t this push of a message. It’s this engagement where, let’s say you put a blog out there, someone comments back. In [this case], people are commenting on the course. People are exchanging ideas over the content. So you’re evolving it and working it together. That’s the new world. That’s the new model. It isn’t something that is just, “Here’s my ideas and here they are.” It’s a dialogue and exchange that ultimately is more productive for everyone.

The Biggest Challenges for Law Firm Marketers

John: Absolutely, and what about specifically for law firms, what are the biggest challenges for law firm marketers?

Diana: I think, similarly, something similar that we have is how do you keep differentiating yourself in a saturated market? How do you promote your brand? How do you continually evolve, and innovate, and show that you’re uniquely qualified over someone else? Obviously eminence is one way to do that. Engaging is certainly a way. Thinking beyond law firms and professional services firms like Deloitte have, in the past, always charged – for example – by the hour, and that’s just been a mindset that’s gone in. Starting to think more about, “What’s the real value we’re bringing in?” Thinking of ways in which you can differentiate yourself. I think the marketer has a role now to play in helping to shape the thinking around that.

It isn’t just the message. It’s really the mindset of the organization. It’s the type of strategies and tactics that you will use, such as what we were just talking about in thought leadership. It’s how you create the client experience end-to-end, how you think about all the customer decision-making, how the customer feels at all those points that the marketer plays a role in. I think they have a really unique place to influence the many stake-holders, the many lawyers that are in the organization and how they show up at their clients.

But I think even more importantly than that is the future of where their talent is going to come from. I mentioned it before, but we did a study that was a digital study, we did it with MIT Sloan Management, and what we found was across all these age groups that, primarily, talent is really looking for organizations that are technically capable and receptive to employees being able to be digitally sophisticated. And we found that in many cases companies are not nearly as mature as the upcoming workforce and current workforce wants to be, and so that’s a challenge so we have to deal with that.

Conveying the Value of Marketing to Management

John: Yes, absolutely, especially younger people, and not just very young people, certainly into the 30s, and 40s, and above, but a lot of people are just so attuned to social media these days and searching on their mobile phones so if your organization is lagging in that it doesn’t inspire them. I often hear legal marketers complain how hard it is to convey the value of what they do to the management of their firms; do you have any advice for them?

Diana: I think this is something relatively new for CMOs, personally. I don’t, in my consultative time with clients, I think CMOs often didn’t really find their way into the C-suite, and I think that has changed. This is now a real opportunity to affect the C-suite.

I think the CMO had a chance to connect with the CFO about the metrics that drive sales. I think they are instrumental with working with the Chief Talent Officer about how to empower their employees to be better brand ambassadors, to reflect the culture in their business. I think they need to work with the CIO on any new technologies that might be touching the customer or extracting customer insight within the organization. So now they are really up here and I don’t think that was the case before. So they have a chance to change the perception of marketing and that’s new and it’s really a great kind to build new relationships and I think the advice I would have is not to underestimate the power that you have right now to influence and build key relationships with their peers, to have a sit at the table, to take your seat at the table and translate the customer experience, and bringing the customer championship into business results.

John: Yeah and as you said that earlier, really tying that up into your core mandate, your core value proposition and mission statement and making sure that marketing especially things like in the past, SEO or certain things were easy to kind of push a button and they would happen over on the side. Now they need to be much more integrated, right?

Diana: Yes and I think people consider those tactics. They thought, “Oh, well, just go do that.” Now it is an embedded part of the strategy and you can’t really have an organizational strategy without understanding how the marketing message is linking to that and how you are making them come to life in every element of the customer experience.

Content Marketing

John: Do you think content marketing has really driven a lot of that because if you could do digital marketing in the past, it was a little bit of a fairy dust, you know. You could kind of just sprinkle it on. Now you can’t just do that. You have to really develop content that has to reflect the brand or fail, right?

Diana: Yes. I said one time in a talk, and I thought I’d share it even at the conference, but I used to think of marketing as sort of a little m where it was about this message that you pushed out. And now it’s so much more. It’s really about the big M. It’s about the meaning.

John: Right.

Diana: And you are exactly right. That comes from the content that’s really there and it has to be rich.

John: Yes. And the CEO, the CFO, they should take an interest, and I think they are, more so than ever.

Diana: I do too. I do too.

John: What are you up to these days and how can listeners connect with you online?

Diana: Well, I have been pretty busy with the new role but what I have done most recently, I just left Deloitte University, which is a home to me every time I am there but we just had about a thousand of our folks there that sit in our market development organization that had spent two days thinking about, with a number of guest speakers, thinking about how are we going to continue to create the right connections and gain the right knowledge and to think about the right technologies to keep moving our organization forward.

We don’t have, you know — we’re big and it’s hard always to get people together and I’m glad we made that investment. It’s not always easy to do but it’s important when we do to make the most of it, and I think we did. So I was thrilled to be able to have our people together and I encourage, even when you know, with all the options to do things socially and online and virtually, sometimes being in person is the best way to really further that bond. So I was glad to do that.

So connecting with me, obviously please check out our website, first cmo.deloitte.com where you will get lots of relevant content that’s perfectly relevant to the CMO and I hope everybody goes there. My twitter handle is @DianaMOBrien and I welcome anyone and I’d like to have an exchange with anybody, and then certainly deloitte.com. We welcome anybody to visit us there for our eminence.

John: Absolutely, well thanks for talking to us today and thanks for listening everyone to the National Law Review podcast. Visit the National Law Review website at natlawreview.com and for more information about the Legal Marketing Association’s annual conference, visit legalmarketing.org/annual_conference. I’m John McDougall and thanks for listening.

Article By John McDougall & Nicole Cudiamat Minnis
© 2016 The National Law Review

Seven Strategies to Succeed at Law Firm Leadership

The title “managing partner” falls short of the mark in describing the work of a law firm leader. “Chief executive officer,” in my opinion, is more accurate. Terminology evolves so that some titles no longer reflect their original meaning.

Managing partner has become such a term. When a managing partner is named, is the law firm really appointing a manager in the corporate sense? A manager, after all, is a caretaker responsible for oversight of a unit or department.

A recent survey on the topic of law firm management and leadership asked those polled to distinguish between a “manager” and a “leader.” Insights that the survey respondents offered included, “Management is mechanical, while leadership is inspirational,” and “The leader sets the direction and the plan, while the manager implements the plan.”

Another survey respondent was more pointed: “Managers implement what leaders want them to do. Most law firm managers want to be loved and not to lead.” Saying that managers want most to be loved may overstate the case. But it does sum up the problem. If a law firm needs vision, inspiration, motivation, cohesion, consensus, direction-setting and the establishing of firmwide goals, it needs strong leadership committed to that work.

Leading Lawyers 

The hard realities of law firm leadership are apparent. Among them:

  • The authority of lawyer management (or leadership) is derived from the willingness of the firm’s partners to be managed (or led).
  • Partners perceive themselves as being owners of the firm, having certain prerogatives and independence, not as employees to be managed.
  • Each firm has its own personality and culture, and the management techniques effective in one firm may or may not be successful in another.

In the face of these hard realities, many managing partners retreat into the noncontroversial confines of day-to-day management, putting aside attempts to exercise true leadership. What is needed instead is a well-thought-out plan to lead your firm forward into the 21st century.

SEVEN STEPS TO SUCCESSFUL LEADERSHIP

1. Create Job Descriptions for Yourself, Your Successor and Other Firm Leaders.

Remember, you’re drafting a job description for a CEO, not a manager. Think of your job description as a contract with your partners. At a minimum, it should delineate the amount of time you will devote to management responsibilities. A CEO’s primary responsibilities should include strategic planning, setting the future direction of the firm, cultivating relationships with major clients, and identifying and grooming future firm leaders. To compensate for time lost from your personal practice, the job description should define your pay structure.

2. Redefine the Role of Practice Group Chair.

Practice group chairs are too often treated as lions among their prides. Often they are appointed because they are the senior member of the group or the most effective rainmaker. This does not mean they are the most effective manager, the best mentor or the most committed to the success of the firm. Practice group chairs should be elevated to the level of senior management. They should be given the full authority to manage their groups. Practice group leaders need to be chosen based on the ability and the commitment to lead.

3. Get to Know the Firm’s Client Base Personally.

No partner should “own” a key institutional client. Managing partners should reach out to client contacts and underscore the message that the firm—not only the client’s chosen counsel—is pleased to be of service. Ask the client for feedback, learn the client’s business and the industry, and strategize to help the client reach its goals. Do more for the firm’s clients than simply putting out fires.

4. Identify and Hire a Strong Chief Operating Officer.

If you are going to be an effective leader or CEO, you have to get the minutiae off your desk. Delegate day-to-day administrative responsibility to a strong, competent executive director or COO. This person should head up a team of business professionals and serve as your trusted “second hand” on the leadership team.

5. Offer Reforms to “Time and Money” Matters.

You will be asking senior management to take on a more extensive and defined role in the operations of the firm. Adjust the time demands on the executive committee and the practice group leaders to allow for sufficient nonbillable time for them to fulfill their management responsibilities. Likewise, adjust the compensation criteria for senior managers to acknowledge the time they must devote to management matters and for the firm-benefitting results that they achieve.

6. Start (or Reenergize) the Strategic Planning Process.

A strategic plan is a living document that requires modification and fine-tuning from the first day it is implemented. If you have been selected as the firm’s managing partner, presumably you have a vision of what you want the firm to become, what you want it to achieve. Sell this vision and muster a supporting coalition among the equity partners. You don’t need to win them all over, but you will need an effective critical mass and working majority. With this group at your back, start small and keep the initial goals simple. Suggest three or four one-year priority items with sufficient low-hanging fruit to show short-term wins. Consolidate your gains and move forward.

7. Maintain Your Firm’s Investment in Its Future.

The challenges of launching new initiatives, creating consensus and moving your firm forward can sometimes cause a firm leader to forget about the little things that, in the end, may prove to be just as important as greater goals. Don’t forget to implement a first-rate training and associate development program. Here lies the future of your firm. Don’t forget about marketing and business development initiatives. These provide the growth that will finance your firm’s future. Don’t forget about technology upgrades. These are the essential tools that keep your firm on the cutting edge and ahead of the pack. And don’t ignore your successor. Heirs apparent need the opportunity to learn the principles of law firm management.

The old Chinese proverb says that a journey of 1,000 miles begins with a single step. Becoming a leader of a law firm is similar. A CEO must, step by step, patiently bring along the uninterested, the doubters and the curmudgeons to join the advocates and the reformers. Bold vision and small steps are the stuff of leadership.

Article By John Remsen, Jr of The Remsen Group
Copyright 2016 The Remsen Group

Fiduciary Risk in Data Privacy and Cybersecurity? You Bet!

Health plan administrators are (or certainly should be) well-versed in their obligations under the Health Insurance Portability and Accountability Act (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act (HITECH). Failure to secure protected health information (PHI) from disclosure can result in civil monetary penalties of up to $1.5 million and potential criminal penalties of up to 10 years’ imprisonment. Penalties of this size have the tendency to get people’s attention. But, if you are a retirement plan fiduciary or administrator (which likely includes officers and other senior-level executives at a company), are you aware of your obligations to protect sensitive data and other personal information in your control and the control of your vendors?

Retirement plans store extensive personal data on each participant and beneficiary. This data ranges from Social Security numbers and addresses to dates of birth, bank account and financial information, and other records and is stored physically and in electronic forms for years, if not decades. The term often used for this type of information is “personal identifiable information” (PII). While stored, numerous human resources and benefits department personnel, participants, beneficiaries, recordkeepers, trustees, consultants, and other vendors have access to some or all of this highly sensitive information. The extensive trove of PII presents an attractive, and often undersecured and easily exploitable, opportunity for criminals intent on stealing identities or on the outright theft of plan assets and benefit payments.

Federal laws similar to HIPAA but applicable to retirement plans have not (yet) been enacted. However, this does not mean that retirement plan fiduciaries and administrators are off the hook. Under the Employee Retirement Income Security Act of 1974 (ERISA), as amended, a fiduciary is required to discharge his or her duties solely in the interests of plan participants and beneficiaries, and, in doing so, must adhere to a standard of care frequently described as the “prudent expert” standard. Under this standard, it is not difficult to conclude that a retirement plan fiduciary who does not take certain precautions with regard to the protection of PII may be in breach of his or her fiduciary duty. And, although a breach of an ERISA fiduciary duty does not trigger clear statutory penalties like those applicable under HIPAA and HITECH, under ERISA, fiduciaries are personally liable for their fiduciary breaches.

So, what precautions should retirement plan fiduciaries take to help ensure that they have fulfilled their fiduciary duties with respect to data privacy and cybersecurity? What should a fiduciary do in the event of a data privacy or cybersecurity breach? Presently, 47 states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands have enacted some form of breach notification law, and it is unsettled whether these breach notification laws are preempted by ERISA.

Article By Matthew H. Hawes & Patrick Rehfield of Morgan, Lewis & Bockius LLP
Copyright © 2016 by Morgan, Lewis & Bockius LLP. All Rights Reserved.