The National Law Forum

Estate Planning and Client Engagement Letters: Deloitte’s $500 Million Sentence

Accounting firms very often question the need to include certain provisions intended to limit their liability to their clients and sometimes ask whether the provision is even enforceable. Whether the provision will be enforced is uncertain due to the very limited case law addressing liability-limiting provisions in accountants’ client engagement letters, and there could be variations in enforcement from state to state. Nevertheless, it is important to include the provisions, even if enforcement is uncertain, because the provision might just be accepted and never challenged, thereby serving its purpose, even if a court strikes it down after a legal challenge.

One of the more important liability-limiting provisions is limiting the client’s time to sue the accountant to a fixed period (usually one year) measured from when the services are provided. These provisions serve the dual purpose of shortening the lengthy statute of limitations in some states and defining exactly when that period starts to run. Our provision sets forth that the period starts to run at the time the services are provided rather than when the client knows or should know about a claim, which could be years and sometimes decades later.

A picture may be worth a thousand words, but a similar single-sentence provision in an engagement letter saved Deloitte Tax LLP from having to defend a $500 million malpractice suit filed in New York against the multinational professional services firm. A New York court dismissed the lawsuit and affirmed the validity of the one-year limitations period. However, unlike the provision we generally recommend, the Deloitte provision indicated the one-year period started to run from when “the cause of action accrued.” Since New York law holds that such claims accrue at the time the advice is given, the court held that Deloitte’s provision shortened the time period to sue the accountant to one year from the time the advice was given. In effect, our provision would reach this result even in states that do not have the same highly favorable point of accrual.

Facts of the Case

Deloitte was engaged in 2008 by billionaire William Davidson to modify his estate plan, and Deloitte provided advice until shortly before Davidson’s death in March 2009. Deloitte was then engaged to assist with the administration of the Estate, including providing advice on a variety of tax issues, some of which related to the modifications put in place prior to Davidson’s death.

Not surprisingly, the IRS scrutinized the Davidson Estate filings, but somewhat surprisingly concluded that the Estate owed billions more than was reported on the Estate’s returns. Those conclusions were contested by the Estate, which ultimately settled with the IRS for approximately $500 million in July 2015. Deloitte continued working with the Estate until September 2015, when the Estate brought an action against Deloitte in New York seeking to recover the $500 million paid to settle with the IRS.

The Estate alleged, among other things, that Deloitte was reckless and negligent in the estate planning advice provided to Davidson. Deloitte filed a motion to dismiss the complaint in its entirety, arguing that the claims were time-barred based on the limitations provision in their engagement letter with Davidson. The critical language in the engagement letter stated:

No action, regardless of form, relating to this engagement, may be brought by either party more than one year after the cause of action has accrued, except that an action for nonpayment may be brought by a party not later than one year following the date of the last payment due to the party bringing such action.

New York law provides that parties to a contract can shorten the statute of limitations, so the plaintiffs did not dispute the validity of the provision shortening the statute of limitations to one year. Instead, the plaintiffs argued that the doctrines of continuous representation and equitable estoppel deferred accrual of the causes of action until Deloitte stopped providing services to the Estate. The plaintiffs, focusing on the services Deloitte provided after Davidson’s death during the administration of the Estate and resolution with the IRS, argued that the claims did not accrue until services stopped in September 2015.

The Decision

On August 22, 2016, the Supreme Court of the State New York, New York County dismissed all claims against Deloitte, holding that they were time-barred under the one-year limitations provision in Deloitte’s engagement letter. After confirming that New York law permits parties to shorten the limitations period by contract, the Court focused on “accrual” of the claims, since that is the point from which the one-year period is measured under the engagement letter provision.

For the malpractice claim, the Court pointed to the longstanding New York law holding that a malpractice claim against an accountant based on allegedly faulty tax advice accrues at the time the advice is given, which in this case predated Davidson’s death in 2009 − more than six years prior to commencement of the action. The Court also ruled that the representation of the Estate after Davidson’s death did not save the claims through application of the continuous representation doctrine because the provision in the engagement letter expressly barred any tolling. Finally, the Court ruled that equitable estoppel did not apply because Deloitte did nothing to conceal the Estate’s tax problems.

Takeaways

Well-drafted engagement letter provisions that shorten or otherwise limit the
time a client has to commence suit can be strong risk management tools that will be upheld by at least some courts. The strength and enforceability of the provision will vary from state to state, but New York is not unique in holding that these provisions are enforceable.
Shortening the time period to commence a suit to as little as one year is possible.
If your jurisdiction does not measure accrual from the time the services are provided, as it is in New York, adding language measuring the commencement of the contractual limitation period from the time the services are provided is a possible solution, depending on the law in your state.
If drafted properly, the provision can eliminate any tolling or extension of the limitations period based on additional or subsequent services that may be provided.

The purpose of the statute of limitations in the context of professional malpractice is to allow an accounting firm a degree of certainty that past services will not lead to stale complaints in the distant future. Accountants can increase that certainty, limit the future period and protect themselves from stale complaints in the distant future by incorporating a limitation provision into their engagement letters.

For Deloitte, a single sentence in its engagement letter limiting the time period for all claims to one year was worth $500 million.

ARTICLE BY Peter J Larkin & Rebecca R. Gelozin of Wilson Elser Moskowitz Edelman & Dicker LLP

New York Proposes First-Ever Cybersecurity Regulation for Financial Institutions

The New York Department of Financial Services recently announced a new proposed rule, which would require financial institutions and insurers to implement strong policies for responding to cyberattacks and data breaches. Specifically, the rule would require insurers, banks, and other financial institutions to develop detailed, specific plans for data breaches; to appoint a chief privacy security officer; and to increase monitoring of the handling of customer data by their vendors.

Until now, various regulators have been advancing similar rules on a voluntary basis. This is reportedly the first time that a state regulatory agency is seeking to implement mandatory rules of this nature.

“New York, the financial capital of the world, is leading the nation in taking decisive action to protect consumers and our financial system from serious economic harm that is often perpetrated by state-sponsored organizations, global terrorist networks, and other criminal enterprises,” said New York Governor Cuomo. He added that the proposed regulation will ensure that the financial services industry upholds its commitment to protect customers and take more steps to prevent cyber-attacks.

The rule would go into effect in 45 days, subject to notice and public comment period. Among other detailed requirements, it will mandate a detailed cybersecurity program and a written cybersecurity policy. While larger financial institutions already likely have such policies in place, the rule puts more pressure on them to fully comply. It also mandates the hiring of a Chief Privacy Officer at a time when privacy professionals are already in a very high demand. To attract top talent, the financial institutions will need to allocate appropriate budgets for such hiring.

Additionally, the rules outline detailed requirements for the hiring and oversight of third-party vendors. Regulated entities who allow their vendors to access nonpublic information will now have to engage in appropriate risk assessment, establish minimum cybersecurity practices for vendors, conduct due diligence processes and periodic assessment (at least once a year) of third-party vendors to verify that their cybersecurity practices are adequate. More detailed specifications can be found here. Other requirements include employment and training of cybersecurity personnel, timely destruction of nonpublic information, monitoring of unauthorized users, and encryption of all nonpublic information. As DFS Superintendent Maria Vullo explained: “Regulated entities will be held accountable and must annually certify compliance with this regulation by assessing their specific risk profiles and designing programs that vigorously address those risks.”

Among other notable requirements, the regulations further mandate that banks notify New York’s Department of Financial Services of any material data breach within 72 hours of the breach. The regulations come at the time when cybersecurity attacks are on the rise. The proposed rules also follow on the heels of recent legislative initiatives in 4 other states to bolster their cybersecurity laws, as we previously discussed.

The regulations are sweeping in nature in that they potentially affect not only New-York-based companies but also insurers, banks, and financial institutions who conduct business in New York or have customers who are New York residents. If you are unsure about your company’s obligations and the impact of the proposed rules on your industry, contact Mintz Levin privacy team for a detailed analysis.

ARTICLE BY Cynthia J. Larose & Natalie A. Prescott of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Oklahoma and U.S. DOL Agree to Tag-Team Worker Misclassification Initiatives

As the effort to stamp-out worker misclassification under the Fair Labor Standards Act continues to run strong, Oklahoma is the latest state to join the U.S. Department of Labor’s Misclassification Initiative. Specifically, the Oklahoma Employment Security Commission entered into a three-year Common Interest Agreement with the U.S. DOL’s Wage and Hour Division, under which the agencies agree to share data, exchange information, and coordinate investigations and other enforcement actions within Oklahoma. As part of this collaboration each agency will be responsible for designating a “Point of Contact” and a representative to participate in quarterly (if not more frequent) meetings.

Employers in Oklahoma need to be cognizant of the risks of worker misclassification and continue to ensure that they are not improperly classifying employees as independent contractors. Indeed, Oklahoma’s joinder with the DOL’s Misclassification Initiative serves as a reminder to employers that this is a hot-button issue of particular interest to both state and federal officials, and targeted efforts are being made to eradicate misclassification nationwide. For more information, employers can look to the U.S. DOL’s website dedicated to the Misclassification Initiative. The DOL has provided a map identifying those 35 states that have partnered with the DOL as part of the Misclassification Initiative and details of such arrangements, as well as fact sheets and general DOL guidance on worker classification issues that may be of use.

This post was written by Koryn M. McHone of Barnes and Thornburg LLP.

Double Your Law Firm’s Lead Conversion Rates with This Proven System (Part 2 of 3)

Over the years, we have developed a proven intake and lead conversion system that has doubled the lead conversion rates of thousands of attorneys all across the nation. It consists of four major components:

#1: Training for your front office and intake staff;

#2: Specific tactics and strategies to maximize your conversion at each stage;

#3: An intake customer relationship management (CRM) software that automatically tracks and follows up with every lead; and

#4: Tracking and measurement of key metrics.

The subject for today’s post is #2:

#2: Specific Tactics and Strategies to Maximize Conversion at Each Stage

Dr. James Oldroyd, visiting research fellow at MIT and David Elkington, CEO of InsideSales.com, researched three years of data across many companies that respond to online-generated leads. The data included 15,000 unique leads and 100,000 call attempts, which the researchers scoured to determine how companies should respond to their online leads for the best possible results. The results were broken out into four areas and reveal the best days to make contact, best times, response time and persistence. Here’s what they found – and what you can use to guide your intake person in responding to online leads:

Wednesday and Thursdays stand out as the best for making contact with online leads. In fact, there was almost a 50 percent bump for calls made on Thursdays in comparison to calls made on Tuesdays. The best time to call leads is between 4 p.m. and 5 p.m. The second best time is between 7:30 a.m. and 8:30 a.m. Prospects are more willing to talk to you either before they start their day or at the end of the day.

We have discovered over 45 additional techniques your intake staff can use that can rapidly increase your lead conversion rate. Here are a few of the top techniques:

Every lead must be followed up within five minutes! Research is very clear that speed-to-call is the highest predictor of lead conversion.When the initial follow-up call/contact goes from five to 10 minutes, lead conversion drops by up to 400 percent! The intake team must be trained and monitored to ensure every potential new client is being called back within five minutes or less.

Every lead must be called back a minimum of six to 10 times!It’s not enough to call back a prospect once and then hope they call you back. When dealing with consumers you need to be persistent, often calling them back four, five or more times before you reach them. Once you reach them, you either disqualify them and stop calling or qualify them and set the appointment. Just making one or two attempts will net you next to nothing; if you don’t connect, you have to be persistent in continuing to call.

The first day, each lead should be called two to three times.The average consumer calls five to seven law firms when making a buying decision and the law firm that gets them on the phone first will likely be chosen. We never received more than one call back or voicemail the first day.

Scripts need to be written for voicemails so they aren’t always the same.Unless you give them direction, most staff will leave the same, generic message, “Hi this is Stephen from ABC Law Firm calling you back. Our number is (888) 588-5891. Please call us back.” This does nothing to differentiate you from the pack of attorneys they have already called. Come up with different voicemails that encourage the prospect to call your office back. For example, “Hi Mr. ____. This is ____ with ABC Law Firm. I’m calling about a potential motor vehicle accident you inquired about. I need to get some more information from you to determine if this is a case we can assist you with. If you could please give me a call back as soon as possible, I can be reached at (888) 588-5891 and my extension is 613.”

Never make an attorney or paralegal responsible for making follow up calls.They will not do it. They just won’t. Trust me. We have tried every possible incentive to get associates or paralegals to make follow-up calls and they will not. As much as possible, you want to build a wall between anyone who takes calls from prospects and those who do the work.

Part 1- Double Your Law Firm’s Lead Conversion Rates with This Proven System (Part 1 of 3)

ARTICLE BY Stephen Fairley of The Rainmaker Institute

Double Your Law Firm’s Lead Conversion Rates with This Proven System (Part 1 of 3)

The purpose of marketing is to generate leads. The purpose of your intake system is to convert those leads into clients. To take your law firm to the next level, you need both lead generation and lead conversion. The problem is most attorneys spend all their time and money focusing on getting more and more leads, but fail to recognize that what you do with those opportunities is just as important as generating them.

Over the last 16 years, we have developed a proven intake and lead conversion system that has doubled the conversion rates of thousands of attorneys all across the nation. It consists of four major components:

Training for your front office and intake staff;
Specific tactics and strategies to maximize your conversion at each stage;
An intake customer relationship management (CRM) software that automatically tracks and follows up with every lead; and
Tracking and measurement of key metrics.

Today’s post covers #1:

#1: Training for Front Office and Intake Staff
Most law firms have a receptionist, but a receptionist is very different from an intake person. When hiring someone to handle calls from prospects, you are not looking for a receptionist. You are essentially looking for a sales person – someone who feels very comfortable “selling” over the phone. They are selling prospects on why they shouldn’t try to handle their legal problem on their own and why they should come in for a consultation. One of the biggest mistakes for consumer law firms is having an untrained, minimum wage receptionist handling calls from prospects. The only thing worse is to have a paralegal or attorney handle incoming calls. Why is that worse? Because in our experience, 99 percent of the time, they are terrible at it. Paralegals and associates see these calls as an interruption to their day.

Here are the major areas your intake staff should be trained on:

How to quickly qualify or disqualify prospects (this should be no more than four to six questions).
Precisely what information you want collected: name, phone, email, reason for call.
Talking points on exactly how you want the phone answered.
Answers to the most frequently asked questions prospects call about.
Scripts for when they leave voicemail messages.
Brief guide on how to use your phone system.
How to use your lead tracking system or intake CRM.
Your firm’s relevant information, such as website, address, driving directions to your local office.
Protocol on expectations on how, when and how frequently to follow up with prospects.
Top three reasons why they should come in for a consultation (for local clients).
Top three to five reasons why they should hire you. What makes your firm unique?
How, when and with whom to set appointments for initial consultations.
What to do when you don’t know how to handle a prospect.
Key phrases of empathy and support.
How to control the call for when prospects want to talk too much.
Sample intake form filled out correctly as a guide.
Training on how to use any software required of them.

Same Sex Marriage Defined by IRS

Just before Labor Day weekend, the U.S. Department of Treasury and the Internal Revenue Service (IRS) released final regulations amending the definitions of “marriage” and “husband and wife” in the wake of the Supreme Court’s Obergefell v. Hodges decision, which legalized same-sex marriage, and the Windsor v. U.S. decision, which struck down Section 3 of the Defense of Marriage Act (DOMA). The proposed regulations, issued in October 2015, were followed by several comments and a request for a public hearing (at which the requestor did not attend, and at which no one else asked to speak). The comments prompted minor refinements to the proposed rules, with the final regulations providing the following:

For federal tax purposes, the terms “spouse,” “husband,” and “wife” are defined as an individual lawfully married to another individual. These terms do not include individuals who have entered into a registered domestic partnership, civil union, or other similar relationship if that relationship is not denominated as marriage under applicable law in the jurisdiction in which the relationship was entered into (regardless of where the couple lives (i.e., domicile)).
“Husband and wife” is defined as two individuals lawfully married to each other.

The definitions set forth above apply regardless of the taxpayers’ sexes or genders.

Building off of Revenue Ruling 2013-17, which adopted the “place of celebration” rule over the “place of domicile” rule for purposes of determining the validity of a same-sex marriage, the final regulations further provide:

A marriage between two individuals entered into in, and recognized by, any state, possession, or territory of the United States will be treated as a marriage for federal tax purposes (regardless of the married couple’s place of domicile). This standard applies regardless of the term used in the Internal Revenue Code.
Foreign marriages are discussed separately from domestic marriages to ensure clarity on how these foreign marriages are to be treated. Under the foreign marriage rule, two individuals entering into a relationship denominated as marriage under the laws of a foreign jurisdiction are married for federal tax purposes if the relationship would be recognized as marriage under the laws of at least one state, possession, or territory of the United States. Under this construction, it is sufficient for a couple who is married outside the United States to be treated as married for federal tax purposes in the United States if a single jurisdiction would recognize them as married; thus, a review of all pertinent laws of a state or territory within the United States will not be required.

Notably, the IRS declined to adopt certain suggestions submitted by commentators, including:

That the regulations specifically reference “same-sex marriage” such that they would be gender-neutral and to avoid any potential issues of interpretation. The IRS reasoned that the regulations were clear and did not present any potential for confusion; further, adopting this comment was deemed to potentially undermine the goal of eliminating distinctions in federal tax law based on gender.
That the regulations clarify that common-law marriages of same-sex couples will be recognized for federal tax purposes. While the statutes of certain states recognizing common law marriages only do so for opposite-sex couples, the Treasury and IRS opined that the Supreme Court’s holdings, coupled with prior IRS guidance, make clear that common law marriages are valid, lawful marriages for federal tax purposes. While the agencies did acknowledge that some states had laws “on the books” prohibiting same-sex marriage (including some states that allow common law marriage), since the government was “unaware” of any state enforcing those statutes or otherwise prohibiting same-sex couples from entering into common law marriages, the Treasury and IRS declined to make any further clarifications on this issue.

While employers who sponsor benefit plans should have already modified their plans and procedures to come into compliance with Obergefell, Windsor, and Revenue Ruling 2013-17, the finalization of these regulations brings refinements to the rules that should be captured by those working with benefit plans. For example, how are foreign marriages treated for imputation of income in a group health plan setting? In addition, how are same-sex common law marriages reviewed under the qualified plan joint and survivor rules? A careful review of the final regulations’ definitions as compared to current plan documents and administrative practices is recommended.

Written by Carrie E. Brynes and Jorge M. Leon of Michael Best & Friedrich LLP.

Register Today for LMA Tech West – October 5 & 6, 2016

The Legal Marketing Technology Conference is the largest conference dedicated to technologies that law firm professionals use to identify, attract and support clients.

Register today!

Join us for the full day conference on October 6, and the half day pre-conferences on October 5. Our pre-conferences include: Technology Workshops and a Lead Marketers’ Summit.

Agenda highlights:

Leading Law Firms through a Competitive Revolution (Keynote: Roland Vogl, CodeEx: The Stanford Center for Legal Informatics)
How CLOC is Changing Legal Service Delivery Models
How Law Firms Can Use Video to Reach New Clients
Data Visualization for Law Firms
Bringing your CRM Data, Legal Expertise and Pricing Data Together: The Future of Effective Legal Sales
Creating Efficiencies Through Marketing Automation: Principles & Practices
Dynamic Content via Deep Personalization – the next stage in email marketing
Using Livestreaming Video to Tell Your Story, Build Relationships, and Attract Clients
Blockchain ID and The Changing Face of Digital Identity

Registration

Save $100 when you register by September 15. To register, click here.

Teenagers And D.C. Circuit Agree: Internet Service Is A Utility – Will Bankruptcy Courts Follow?

The topic of net neutrality has continued to be at the forefront of public discourse over recent years. This is the result of the FCC’s repeated attempts to impose regulations designed to protect consumers while at the same time telecom companies seek to control their product and the services they provide without what they contend is burdensome regulation. This summer, in U.S. Telecommunication Association v. FCC, the D.C. Circuit Court of Appeals dealt a blow to the telecom industry when it upheld a FCC declaration that broadband internet is a telecommunication service—essentially a public utility. Many speculate that this decision will have a broad impact (good and bad) on internet service providers in both the short and long term. A less considered aspect of the D.C. Circuit’s ruling is how it will be applied in the bankruptcy context.

Section 366 of the Bankruptcy Code establishes safeguards for debtors when it comes to their use of public utilities. Under Section 366, essential utility providers are prohibited from discontinuing service upon the filing of a bankruptcy petition. Instead, the debtor is required to provide adequate assurance of payment within short order, and if the debtor complies, the utility provider must continue service. The Bankruptcy Code does not define what a “utility” is, but the legislative history provides some insight, noting that section 366 “is intended to cover utilities that have some special position with respect to the debtor, such as an electric company, gas supplier, or telephone company that is a monopoly in the area so that the debtor cannot easily obtain comparable service from another utility.”

Bankruptcy courts have not strictly interpreted the monopoly reference in the legislative history and have continued to hold that telephone service is a utility even after the industry has been deregulated. In the context of cable television, rather than looking to the monopoly requirement, the Fifth Circuit Court of Appeals in Darby v. Time Warner, 470 F.3d 573, 574 (5th Cir. 2006), held that the relevant analysis was whether the provider stands in a “special positon with respect to the [debtor] such that it is a utility within the meaning of the statute.” There the Fifth Circuit held that cable television providers did not stand in a special position with respect to the debtor and further that cable television service was not a necessity and therefore not a utility under Section 366.

We have no doubt that individual debtors will begin to test whether they can claim internet service is a utility, relying principally on the D.C. Circuit’s ruling. However, based on the Fifth Circuit’s analysis, it is entirely conceivable that bankruptcy courts will be reluctant to extend utility status to broadband internet service providers in individual bankruptcies, as it is difficult to find that internet service is a necessity. However, in the corporate chapter 11 context, one can easily envision a scenario where broadband internet service is necessary for a debtor to continue operating its business, for example, in the e-commerce arena or simply to connect its internal computer systems. In these circumstances, courts have already allowed debtors to consider internet service a utility under Section 366. The D.C. Circuit’s recent opinion in U.S. Telecommunication Association v. FCC will now provide further support for commercial debtors to claim that internet service is a utility in the event that a provider dissents.

Written by Peter R. Morrison of Squire Patton Boggs Law Firm.

Seven Ways a Niche Helps Your Business Development

Any marketing expert will tell you that having a clear niche is good for the bottom line; yet, many attorneys continue to be generalists within their practice areas. Some may think that they have a niche, simply by virtue of being an environmental lawyer, an IP lawyer, an insurance lawyer, etc. Imagine having a real estate agent who specializes in Southern California. Sure, she has the basic skill set that you need, but there is no reason to think she has any special knowledge or insight related to your particular neighborhood. It works the same way with the law. Just because you can cover a wide range of legal issues doesn’t mean that it is wise or profitable. I understand that putting yourself out there as a specialist in a particular niche can seem scary or difficult. So, here is a list of reasons why niching is worth the effort.

Clients want experts – If you had a brain tumor, you wouldn’t want a generalist to operate; you would want the best brain surgeon you could find. The same principal applies for business problems. If the issue is important enough, the client will want an expert, someone who has handled many similar situations in the past, who has a grasp of the subtleties and can nip problems in the bud. Even though a generalist may be perfectly capable of doing a great job, clients simply feel more relaxed and confident knowing that they chose an expert.
Clients are Willing to Pay More for Experts – Maybe clients want to work with you. However, wanting something and being willing to pay for it are different. The critical question is if they are willing to pay your rates. If they see you as a commodity, they are more likely to quibble over your rates and your bills. Whereas, if you are seen as one of the preeminent people with the skill and knowledge they need, they are a lot less likely to push for discounts.
Higher Quality Referrals from Other Attorneys – In some circles, referrals get a bad rap because some lawyers only refer out the undesirable, low quality cases that they don’t want. The first reason attorneys may avoid giving referrals is that they don’t trust the other attorney to do a good job. Having a clear niche addresses this concern because it makes your expertise clear to the world, and thereby reassures other attorneys that referrals would indeed benefit their clients, and thus reflect well on them. The second reason other attorneys may not give referrals is if they feel they can profitably do the work themselves. This is where choosing your niche wisely comes into the picture. As long as your area of law is complex enough that it is not worth it for other attorneys so invest the time and energy getting up to speed, you naturally attract high quality referrals.
Higher Quality Referrals from Your Social Network – Our social networks can be a great source of business, and yet most attorney’s friends and family are not terribly clear on what they do for a living. How many of you have been asked about DUIs or divorce issues by people who just don’t understand that you actually do M&A? If someone at a party asks what you do and you list seven areas, people are left with the impression that you do everything and you end up with lousy, low quality referrals. The more clear and precise you are about your niche, the more easily your social network can send you business or aid you in making relevant connections.
Narrows the Competition – Instead of competing against all white-collar criminal defense attorneys or all civil litigators in your geographical area, you are competing against only a handful. Of course, it also narrows the field of clients but it’s a lot easier to distinguish yourself for your amazing customer service, your personable demeanor or your brilliant team when you are competing with 10 people rather than 300 or 3000.
It helps You to Stay Focused – Deciding where to put your time and energy is a constant struggle for any attorney, and the more recognition and opportunities you have coming your way, the more difficult the choices become. One of the great things about having a clear niche is that it becomes easier to choose where to network, who to reach out to for meetings, and which invitations to accept.
It Leverages Name Recognition – The reason this is important is the same reason that TV and radio adds play over and over again. It is the repeated exposure that makes people remember you and associate you with certain types of clients or cases. For example, maybe someone first meets you at a networking event. A couple months later, they see you speak. A couple weeks later, they notice that you are on the board of directors for the organization in which you met. Six months later, they read an article that you authored. This repeated exposure in the same niche makes you both more memorable and more credible. Similar activities but spread over several different subject areas or geographical areas will likely have less impact since you lose the leverage created by repeated exposure.

Lawyers often worry that narrowing their niche will lead to fewer clients. However, it almost invariably has the opposite effect. Imagine what your life would be like if you could double the number of cases or matters that you really enjoyed? What if you could charge 50% more for your services? What would it be like if the right kind of associates and staff were applying to work with you? The benefits of having a clear niche are significant and well worth getting out of your comfort zone and trying something new.

ARTICLE BY Anna H. Rappaport of Excelleration, LLC

SEC Whistleblower Awards: Can You Hear Whistles Blow? Valued At More Than $100 Million, You Bet You Can!

Some very loud whistles have been blowing across corporate America since 2011 – whistles valued at $107 million, in fact. The United States Securities and Exchange Commission announced on August 30, 2016, that since its whistleblower program began in 2011, they have awarded more than $107 million total to 33 individuals who voluntarily provided the SEC with original and useful information that led to a successful enforcement action. Whistleblower awards can range from 10 percent to 30 percent of the money collected when the SEC’s monetary sanctions in a matter exceed $1 million.

The SEC encourages employees to report suspected wrongdoing, because they, according to Acting Chief Jane Norberg, “are in unique positions behind-the-scenes to unravel complex or deeply buried wrongdoing.” And, last year alone, employees responded by providing nearly 4,000 tips to the agency. With this kind of incentive from the SEC and other government agencies, as well as a growing number of successes in whistleblower lawsuits, it is more important than ever for companies to get advice on a regular basis. Moreover, companies must be strategic and proactive in their approach to implementing an effective whistleblower protection and anti-retaliation system.

Key elements of an effective whistleblower protection and anti-retaliation system include:

Clear and visible leadership commitment and accountability. This is truly the most important piece of the puzzle. Without sincere support from the top, no internal whistleblower program can succeed.
The creation of a true “speak-up” organizational culture focused on prevention, including encouraging employees to raise all suspicions and issues quickly and insuring the fair resolution of such issues.
Independent, protected resolution systems for employees and third-parties who believe they are experiencing retaliation as a result of raising concerns.
Specific training to educate all employees about their rights and available protections (including both internal and external programs).
Specific training for managers who may receive complaints or information from employees, requiring the manager to be considerate of the employee making the report, to be diligent, and, most importantly, to act on the information with no corporate tolerance of the “just telling me as a friend, not as a manager” excuse.
Internal monitoring and measurement of corporate compliance efforts and the effectiveness of the speak-up and non-retaliation culture, without contributing to the suppression of employee reporting.
Independent auditing to determine if the whistleblower protection and anti-retaliation system is actually working.

Post written by Denise K. Drake of Polsinelli LLP.

The National Law Forum

Estate Planning and Client Engagement Letters: Deloitte’s $500 Million Sentence

Facts of the Case

The Decision

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New York Proposes First-Ever Cybersecurity Regulation for Financial Institutions

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Oklahoma and U.S. DOL Agree to Tag-Team Worker Misclassification Initiatives

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Double Your Law Firm’s Lead Conversion Rates with This Proven System (Part 2 of 3)

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Double Your Law Firm’s Lead Conversion Rates with This Proven System (Part 1 of 3)

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Same Sex Marriage Defined by IRS

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Register Today for LMA Tech West – October 5 & 6, 2016

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Teenagers And D.C. Circuit Agree: Internet Service Is A Utility – Will Bankruptcy Courts Follow?

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Seven Ways a Niche Helps Your Business Development

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SEC Whistleblower Awards: Can You Hear Whistles Blow? Valued At More Than $100 Million, You Bet You Can!

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Facts of the Case

The Decision

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