The National Law Forum

Supreme Court to Decide Whether Government can Freeze a Defendant’s Lawful Assets Pre-Conviction

Whether the government can freeze all of a defendant’s assets before trial, even where those assets are not tainted by any connection to alleged federal offenses, thereby preventing a defendant from paying for his own defense, will be decided by the U.S. Supreme Court in Luis v. United States, No. 14-419.

The federal Mandatory Victims Restitution Act of 1996 (“MVRA”) requires that defendants convicted of crimes committed by “fraud or deceit” compensate victims for the full amount of the victims’ losses. Often, however, by the time there is a conviction, criminal defendants do not have any assets to satisfy those judgments. Seeking to address this problem, the United States has invoked the Fraud Injunction Act to freeze legitimate assets pre-conviction to pay a later judgment.

The Fraud Injunction Act statute authorizes a “restraining order” against assets when a person is “alienating or disposing of property, or intends to alienate or dispose of property” that is “obtained from” or “traceable to” certain federal offenses. In such cases, the statute permits a court to prohibit the use of tainted property “or property of equivalent value” before trial to ensure that sufficient assets are available to satisfy any judgment.

In 2012, the federal government charged Sila Luis with conspiracy to commit Medicare fraud – a scheme allegedly amounting to over $45 million, stemming from claims for home health services that were neither medically necessary nor actually performed. Using the Fraud Injunction Act, the federal government asked the district court to freeze all of Luis’s assets, including those that were not even allegedly obtained through fraud, totaling approximately $15 million. The district court agreed to impose the freeze. .

Luis then requested that the district court release her untainted assets so she may retain her lawyer. The district court denied the request, explaining that, because the government could locate “only a fraction of the assets” Medicare had paid Luis’s companies, her “untainted” assets also could be frozen. The district court likened Luis’s situation to that of a bank robber indicted for stealing $100,000; That is, if the robber has already spent the allegedly stolen money which he could not use to hire his preferred lawyer in any case, he also should not be able to spend a different $100,000 he “just happens” to have to hire the lawyer he wants.

Luis appealed the district court’s decision, arguing she was being deprived of her Fifth Amendment right to due process of law and her Sixth Amendment right to counsel of her choosing. The Court of Appeals for the Eleventh Circuit, in Atlanta, upheld the district court’s denial of her request to release her legitimate assets, stating that Luis’s arguments were foreclosed by the U.S. Supreme Court’s decision in Kaley v. United States (2014) and other decisions.

In Kaley, the Supreme Court held that when the government, following a grand jury indictment, restrains tainted assets needed to retain a lawyer, the Fifth and Sixth Amendments do not require a pretrial hearing at which the defendant can challenge a grand jury’s finding of probable cause.

Luis asked the Supreme Court to review the case. The Court agreed to do so and recently heard argument. A decision is expected by next June.

Article By Ramsay C. McCullough of Jackson Lewis P.C.

Substantial OSHA Penalty Increases Are Coming

OSHA penalties are going up. EPA’s penalties are going up, too. However, while EPA penalties have been going up modestly every four years to take inflation into account, OSHA penalties have not increased in 25 years. Maximum OSHA penalties may jump as much as about 78 percent next year. For a provision quietly tucked away in budget legislation, this packs quite a punch.

The Legislative Change

On November 2, 2015, President Obama signed into law the Bipartisan Budget Act of 2015.^[1] Section 701 of that legislation is the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Adjustment Act). The 2015 Adjustment Act amends the Federal Civil Penalties Inflation Adjustment Act of 1990^[2] to remove the OSHA exemption to the requirement that civil monetary penalties be periodically increased to account for inflation. The amendment also changed the frequency of the inflation increases from “once every 4 years”^[3] to “every year.”

In addition, the new law entitles OSHA to a single “catch up” penalty increase to account for the lack of periodic penalty increases, which “shall take effect no later than August 1, 2016.” OSHA is authorized to calculate this initial increase based on the percentage difference between the Consumer Price Index (CPI) in October 2015 and the CPI in October of the calendar year that the civil penalty was last adjusted under any different law.^[4] In this instance, because OSHA penalties have not been adjusted since 1990, the catch-up penalty increase will be based on the October 1990 CPI as compared to the October 2015 CPI.

Based on the October 2015 CPI, the percentage difference is expected to be about 78 percent.^[5] In the catch-up adjustment, $7,000 OSHA penalties could increase to as much as approximately $12,471, and $70,000 OSHA penalties could increase to as much as approximately $124,710. If OSHA rounds those numbers, the likely maximums would be $120,000 and $12,000.

Past Efforts to Raise Maximum OSHA Penalties

Under section 17 of the Occupational Safety and Health Act of 1970 (OSH Act), OSHA penalties for “willful” or “repeat” violations have a maximum civil penalty of $70,000 but not less than $5,000 for each willful violation.^[6] Penalties for “serious” violations have a maximum of $7,000 per violation. Those figures have remained static since 1990 despite repeated efforts to increase them.

For example, in 2009, a Senate bill and a House bill,^[7] both entitled the Protecting America’s Workers Act, would have amended section 17 of the OSH Act with one-time maximum civil penalty increases. The $70,000 “willful” violation maximum would have been increased to $120,000 but not less than $8,000 (up from $5,000). The penalties for “serious” violations would have increased from a maximum of $7,000 to a maximum of $12,000, and penalties for “serious” violations that result in employee fatalities would have been increased to a maximum of $50,000 but not less than $20,000 for employers with more than 25 employees. The proposed legislation did not pass either House of Congress.^[8] This year, updated versions of the Protecting America’s Workers Act were introduced which would make the same adjustments in penalties.^[9]

After more than 25 years and extensive legislative effort, OSHA penalties are poised for a significant initial increase, due to a provision added to an appropriations bill without hearings or debate.

Implications for State OSHAs

About half the states have their own enforcement programs under OSHA-approved state plans, even though they generally enforce OSHA’s standards. Thus, the statutory increase in federal OSHA’s maximum penalties will not directly impact state OSHA programs, whose maximum penalties are set by state law. However, this federal increase is expected to lead to state increases as well. Under section 18 of the OSH Act, state plans must be “at least as effective” as those of federal OSHA.^[10] Lower state maximum penalties are not likely to be seen as being “as effective” as federal maximums.

EPA Penalties Are Going Up Too

Under the Federal Civil Penalties Inflation Adjustment Act of 1990, EPA penalties have increased every four years. Between 1996 and 2013, four adjustments of EPA’s statutory civil payment amounts were implemented.^[11] Annual inflation adjustments will now be required. In recent years inflation has been low, so the next increase will likely be relatively modest.

Article By Mark N. Duvall & Maryam F. Mujahid of Beveridge & Diamond PC

_{[1] Bipartisan Budget Act of 2015, Pub. L. 114-74.}

_{[2] Id at § 701. Prior to the amendment, Section 4(1) read: “by regulation adjust each civil monetary penalty provided by law within the jurisdiction of the Federal agency, except for any penalty (including any addition to tax and additional amount) under the Internal Revenue Code of 1986, the Tariff Act of 1930, the Occupational Safety and Health Act of 1970, or the Social Security Act, by the inflation adjustment described under section 5 of this Act[.]” H.R. 3019, 104^th Cong. (1996).}

_{[3] H.R. 3019, 104^th Cong. (1996) (“The head of each agency shall, not later than 180 days after the date of enactment of the Debt Collection Improvement Act of 1996 [Apr. 26, 1996], and at least once every 4 years thereafter[.]”) (emphasis added).}

_{[4] This initial catch-up adjustment may not exceed 150 percent of the amount of the civil monetary penalties as of the date that the 2015 Adjustment Act was enacted.}

_{[5] The October 1990 CPI is 133.5 and the October 2015 CPI is 237.838. For more information on CPI figures and calculations, click here.}

_{[6] 29 U.S.C. § 666.}

_{[7] S. 1580, 111^th Cong. (2009); H.R. 2067, 111^th Cong. (2009).}

_{[8] In addition, civil penalties for OSHA were subsequently included in proposed mine safety legislation, which was similarly unsuccessful. See H.R. 5663; Beveridge & Diamond, P.C., OSHA Legislation Gets Boost from Mine Safety Bill (Aug. 17, 2010).}

_{[9] S. 1112, 114^th Cong. (2014); H.R. 2090, 114^th Cong. (2014).}

_{[10] 29 U.S.C. § 666.}

_{[11] As described in the most recent (2013) EPA notice raising maximum penalties, “EPA’s initial adjustment to each statutory civil penalty amount was published in the Federal Register on December 31, 1996 (61 FR 69360), and became effective on January 30, 1997 (‘the 1996 Rule’). EPA’s second adjustment to civil penalty amounts was published in the Federal Register on February 13, 2004 (69 FR 7121), and became effective on March 15, 2004 (‘the 2004 Rule’). EPA’s third adjustment to civil penalty amounts was published in the Federal Register on December 11, 2008 (73 FR 75340), as corrected in the Federal Register on January 7, 2009 (74 FR 626), and became effective on January 12, 2009 (‘the 2008 Rule’)”; and the fourth adjustment was published in the Federal Register on November 6, 2013. 78 Fed. Reg. 66643 (Nov. 6, 2013)}

Trending Now: How Latest News Going Viral Can Lead to Employment Litigation

A downed Russian airliner, the tragic Paris attacks, the European refugee crisis, states closing their borders to Syrian nationals, Charlie Sheen’s HIV diagnosis. What do these all have in common? They are hot topics for discussion around the watercooler. And they also will bring out a multitude of opinions. What’s the problem? Opinions can be controversial and, to some, down right offensive. Healthy debate about how the United States should handle the war on terror could be construed as evidence of religious discrimination (in some cases). Discussion regarding Charlie Sheen’s HIV diagnosis can also quickly spiral out of control and later be construed as evidence of disability discrimination. It’s a problem and employers need to be aware of it.

So how can you protect yourself? Well, you certainly cannot stifle discussion about what is happening outside of the workplace. Nevertheless, employers are encouraged to step up, stay on top of what’s trending and put a stop to any discussion that could reasonably be construed as inconsistent with the Company’s EEO policies. You won’t be popular. But let’s face it: running a business is not about winning a popularity contest.

Want to stay on top of what’s trending? Create a Twitter account and keep apprised of the most popular hashtags. The amount of work is minimal and you’ll be tuned in to what topics are floating around the workplace.

Article By Peter T. Tschanz of Barnes & Thornburg LLP

Wyoming Senator Barrasso Introduces Carcieri Compromise Bill

More than six years after the U.S. Supreme Court’s decision in Carcieri v. Salazar, Sen. John Barrasso (R-Wyoming), the chairman of the Senate Committee on Indian Affairs, has introduced the “Interior Improvement Act” to fix the loophole created by the decision that denied some tribes rights under the Indian Reorganization Act of 1934 (IRA). The bill is not, however, the “clean” Carcieri fix that Indian Country had been seeking.

In 2009, the Carcieri court ruled that the IRA, which delegated authority to the Secretary of the Interior to place land in trust status for Indian tribes, applied only to tribes “under Federal jurisdiction” on the date of the IRA’s enactment. Under the IRA, land is to be placed into trust status only for “the purpose of providing land for Indians.” The act defined “Indian” to mean “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” The court held that any tribe not “under Federal jurisdiction” as of that date is ineligible to place land in trust.

Carcieri compelled the Secretary to conduct a deep inquiry into whether applicant tribes were “under Federal jurisdiction” in 1934 in anticipation of legal challenges to politically sensitive trust acquisitions, particularly those made for gaming purposes. But proving the requisite relationship between the federal government and the tribes is very difficult, as many tribes lack documentation of that relationship – largely due to the anti-tribal “allotment” policies that preceded the IRA’s enactment in 1934 and the termination policies that followed it in the 1950s.

After the Carcieri decision, tribes immediately pushed for a “clean” legislative fix from Congress – a bare amendment clarifying Interior’s authority to place in trust for all recognized tribes without limitation and retroactively affirming previous trust decisions. Opponents of off-reservation gaming, however, saw an opportunity to increase the input of local governments in trust acquisitions and even to seek a veto over federal trust acquisitions. Opposition from Indian tribes to a local veto has precluded a legislative fix repairing the damage done by the decision.

Barrasso’s bill affirms the Department’s past and present ability to accept land in trust for all federally recognized Indian tribes but, if passed, would not give local governments the veto power they sought. Instead, it would impose a new process on the Secretary in considering trust applications that increases the input sought from, and consideration given to, local governments affected by trust acquisitions.

First, the bill would require the Secretary to notify contiguous jurisdictions within 30 days of receiving an application to place land in trust and to make the tribal application publicly available on the Department of the Interior website. Those jurisdictions would have 30 days to provide comments. The Department’s current regulations already require notice and comment from the governments exercising jurisdiction over the trust acquisition, so this is a minor change.

Of much greater impact is the bill’s requirement that the Secretary give preferential treatment to those trust applications in which the tribe has entered into a “cooperative agreement” with local governments, defined in the bill as “contiguous jurisdictions.” Those applications would be expedited with a 30-day timeline for a decision approving or denying the application, or 60 days after the completion of NEPA review. This would be a drastic improvement over the current wait time, which can extend to months or even years. Relieving the Department of the requirement to conduct a Carcieri review would save considerable manpower. Those applications without cooperative agreements would still be eligible for approval but would not be expedited.

Many tribal applicants already enter intergovernmental agreements with local governments to mitigate the impacts of tribal development on trust land and pay for county-provided services that would ordinarily be paid for through property taxes, and it is now common for tribal-state Class III gaming compacts to include a requirement that tribes enter such agreements. Under Barrasso’s bill, provisions in cooperative agreements are undefined – the agreements “may include terms relating to mitigation, changes in land use, dispute resolution, fees, and other terms determined by the parties to be appropriate.” Some local jurisdictions likely will read those terms in the broadest sense possible and require the payment of “fees” as consideration for execution of a cooperative agreement.

If the tribe determined the demands of local governments to be too onerous, it would be free to submit an application without a cooperative agreement. In such cases, the Secretary, in approving an application, would be required to independently conduct a “determination of mitigation” that would consider anticipated economic impacts on contiguous jurisdictions, mitigation, and whether the local jurisdictions worked in good faith to reach a cooperative agreement.

The proposed legislation expressly provides for judicial review of final trust decisions. That judicial review is a certainty, because, while the bill does not expressly limit the Secretary’s discretion to place land in trust, it introduces numerous and ambiguous new factors that the Secretary would be required to consider in processing trust applications. Ambiguity invites litigation, and the bill would likely trade Carcieri-based legal challenges to trust acceptances for lawsuits alleging the Secretary’s failure to adequately consider these new factors.

Article By Patrick Sullivan of Dickinson Wright PLLC

Five Telemedicine Trends Transforming Health Care in 2016

Telemedicine is a key component in the health care industry shift to value-based care as a way to generate additional revenue, cut costs and enhance patient satisfaction. One of the biggest changes to health care in the last decade, telemedicine is experiencing rapid growth and deployment across a variety of applications.

The quick market adoption of telemedicine is fueled by powerful economic, social, and political forces — most notably, the growing consumer demand for more affordable and accessible care. These forces are pushing health care providers to grow and adapt their business models to the new health care marketplace.

Simultaneously changing is the misconception that telemedicine creates a financial strain or relies on grant funding. Smart health system leadership are creating sustainable telemedicine arrangements that generate revenue, not just cost savings, while improving patient care and satisfaction. Research conducted by the American Telemedicine Association reveals that telemedicine saves money for patients, providers, and payers compared to traditional health care practices, particularly by helping reduce the frequency and duration of hospital visits.

It is expected that the global telemedicine market will expand at a compound annual growth rate of 14.3 percent through 2020, eventually reaching $36.2 billion, as compared to $14.3 billion in 2014. And while the growing demand for convenience, innovation, and a personalized health care experience may be the greatest factor, other forces are at work as well.

These five trends will drive telemedicine’s continued growth and transformation of health care delivery in 2016:

1. Expanding Reimbursement and Payment Opportunities

Both private and government payers will continue to expand telemedicine coverage as consumers gain experience with the technology and increasingly demand access to telemedicine-based services. Some health plans have already begun bolstering their coverage of telemedicine, which they view as a form of value-based care that can improve the patient experience and offer substantial cost savings. On the government side, 2016 will particularly see more coverage among Medicaid managed care organizations and Medicare Advantage plans.

While reimbursement was the primary obstacle to telemedicine implementation, new laws requiring coverage of telemedicine-based services have been implemented at the state level, and 2016 will be the year these laws drive implementation in those states. Similarly, providers are becoming increasingly receptive to exploring payment models beyond fee-for-service reimbursement, and 2016 will continue the growth of these arrangements. Examples include institution-to-institution contracts and greater willingness by patients to pay out-of-pocket for these convenient, valuable services.

2. Uptick in International Arrangements

In 2016, more U.S. hospitals and health care providers will forge ties with overseas medical institutions, spreading U.S. health care expertise abroad. These cross-border partnerships will provide access to more patients, create additional revenue and help bolster international brands. According to the American Telemedicine Association, more than 200 academic medical centers in the U.S. already offer video-based consulting in other parts of the world. While many of these are pilot programs, 2016 will see a maturation and commercialization of much of these international arrangements, as they are a win-win for participants in both countries.

The growing purchasing power of middle-class populations in countries like China is giving more patients the means and opportunity to pursue treatment from Western medical centers. We have seen both for-profit and non-profit models for international telemedicine — hospitals partnering with organizations in the developing world to expand health care availability or offering commercial care to customers in nations with areas of concentrated wealth but lacking the capabilities and access of Western health care.

3. Continued Momentum at the State Level

State governments across the U.S. are leading the way in telemedicine expansion. According to a study by the Center for Connected Health Policy, during the 2015 legislative session, more than 200 pieces of telemedicine-related legislation were introduced in 42 states. Currently, 29 states and the District of Columbia have enacted laws requiring that health plans cover telemedicine services. In 2016, we will see more bills supporting health insurance coverage for telemedicine-based services introduced in various state legislatures.

While state lawmakers are leading the way in incorporating telemedicine into the health care system, two recent developments point to a burgeoning interest at the federal level. The Centers for Medicare and Medicaid Services (CMS) is considering expansion of Medicare coverage for telemedicine, and a bill working its way through the U.S. House of Representatives would pay physicians for delivering telemedicine services to Medicare beneficiaries in any location.

4. Retail Clinics and Employer Onsite Health Centers on the Rise

A recent Towers Watson study found that more than 35 percent of employers with onsite health facilities offer telemedicine services, and another 12 percent plan to add these services in the next two years. Other studies suggest that nearly 70 percent of employers will offer telemedicine services as an employee benefit by 2017. The growth of nation-spanning telemedicine companies such as MDLIVE and the now publicly-traded Teladoc, which offer health services tailored to the specific needs of employers and other groups, is a reflection of the demand for these services.

Additionally, consumers are increasingly willing to visit retail medical clinics and pay out-of-pocket for the convenience and multiple benefits of telemedicine services when telemedicine is not covered by their insurance plans. Both CVS Health and Walgreens have publicly announced plans to incorporate telemedicine-based service components in their brick and mortar locations.

5. More ACOs Using Technology to Improve Care and Cut Costs

2016 will be the year of telemedicine and ACOs. Since the advent of Medicare Accountable Care Organizations (ACOs), the number of Medicare beneficiaries served has consistently grown from year to year, and early indications suggest the number of beneficiaries served by ACOs is likely to continue to increase in 2016. These organizations present an ideal avenue for the growth of telemedicine.

While CMS offers heavy cost-reduction incentives in the form of shared-saving payments, only 27 percent of ACOs achieved enough savings to qualify for those incentives last year. Meanwhile, only 20 percent of ACOs use telemedicine services, according to a recent study. We believe the widespread need to hit the incentive payment metrics, coupled with the low adoption rate will lead to significantly greater telemedicine use among ACOs in 2016.

Article By Nathaniel M. Lacktman of Foley & Lardner LLP

Employment Law This Week – Episode 5 – Week of November 16, 2015 [VIDEO]

By George Carroll Whipple, III of Epstein Becker & Green, P.C.

Going Before a Higher Power – Nuns Take on Obamacare

On Nov. 6, 2015, the U.S. Supreme Court agreed to hear the appeals of several religious employers challenging the contraceptive mandate under the Patient Protection and Affordable Care Act (ACA). The court will consolidate seven cases, the most prominent of which was brought by the Little Sisters of the Poor, an order of Catholic nuns who dedicate their lives to helping the elderly poor. The other employers include several Catholic dioceses, a religious non-profit group and several Christian colleges.

The contraception mandate requires religious employers who object to providing contraceptive services to notify the government of their objection, which transfers the responsibility of providing those services to the employer’s insurer. The petitioners argue that this procedure violates the Religious Freedom Restoration Act because it effectively forces the employer’s health plan to cover services the employer finds objectionable. They argue that the government has less restrictive means available to provide these services.

The consolidation of these seven cases is particularly interesting because the employers have varied insurance arrangements. While some of the employers are insured by large insurance carriers, others are self-insured, or have “church plans” as defined by ERISA. It is unclear whether these different arrangements will affect the outcomes for the particular employers.

The court is expected to hear oral argument in the case in March 2016.

Article By Mark D. Scudder of Barnes & Thornburg LLP

Part 2: Influencing the Client Experience – Takeaways from LMA Capital’s Half Day Program

On October 29th, a record number of legal marketers attended LMA Capital’s half day program to discuss how to best influence the client experience. Part one discussed how marketers can address a few major concerns of clients: how the firm can add value to the representation, how a firm can build a strong client team to address issues like credit and succession planning, and how to grow client relationships through better scoping and budgeting. This part will wrap up the final three TED-style talks for the program.

Communication and Managing Expectations – Exceed Their Expectations Every Time: How to Communicate with Clients in Good Times and Bad

Mary Panetta, of Blank Rome LLP, took to the podium in her talk about managing client expectations. Understanding the goal of why you are at the table is crucial to understanding client’s expectations. Sometimes the goal of litigation isn’t always to win, sometimes it’s to acquire the client, or to settle. Ms. Panetta emphasized that it’s important to make no assumptions about what the clients goals are; always ask. If partners are not involved in connecting on a daily basis with the clients to find out what is going on at the company, the client is not going to feel like the firm understands their needs and they are not going to come back with return business. Another key point Ms. Panetta hit on is that it’s important to tell the truth about everything, including budgets. For the firm, it’s important to monitor the budget aggressively and if there is an issue or potential overage on the horizon, share the information with the client early and without alarm. Marketers can help the firm’s lawyers in the process as well by understanding what’s at stake and helping deliver the news to the client either by scripting a dialogue or being present when the call needs to be made. Clients are much more amenable to scope changes when they are appropriately notified and walked through what happened. Also, in this market, there is potential for the client to seek out other services that may cut into the work that the law firm does. Ms. Panetta advises firms to embrace these inevitable market disruptors and present them to your client as a collaborative process. This may be counterintuitive to the firm’s bottom line, however, partnering with a disruptor is a way the firm can bring value to the client and builds vast amounts of goodwill.

Affinity Group Initiatives – Developing Client Relationships Through Affinity Groups

When it comes to working with affinity groups in the firm, Dawn Afanador, of Gibbons P.C., reminded the audience that the groups are still client focused. The Women’s Initiative at her firm is focused on educating women and their clients, give back to the community and their client’s causes, mentor their women and their clients, and provide networking opportunities for women and their clients. Ms. Afanador has found that their women’s initiative to be one of their best client relationship building programs. Rather than focus on having bigger events with high attendance, her firm scaled back the size of the events and narrowly focused on areas of law that address their key client’s needs. The intimacy of the smaller programs, such as focused roundtables, succeeded in helping client engagement and presented opportunities for cross marketing. Firm groups also have an opportunity to help their clients with initiatives they may not be able to achieve on their own. For example, a company might want to get more involved in meaningful pro bono work, but has a small legal department and limited resources. The firm’s pro bono group would be able to collaborate with the client to help them further their pro bono initiative by providing them with support and training. Affinity groups can also add value to networking opportunities: people don’t have time to simply network anymore, so providing programs where your in-house team can learn something and network with others is invaluable. When starting an initiative, it’s important to have some small wins to generate excitement about the initiative. As the initiative grows, don’t be afraid to evolve the program based on client’s needs and feedback from folks internally.

Complacency and Responsiveness – Using Innovation to Motivate and Empower Attorneys and Connect with Clients

To round-out the TED-talks, Jennifer Castleberry of Davis Wright Tremaine LLP, discussed how her firm uses innovation to motivate and empower attorneys and connect with clients. Her firm has created an innovation initiative, DWT De Novo, that focuses on technology, process improvement and people. When they began the program in 2013, they started by first listening to the client’s pain points, which eventually led to the appointment of a chief innovation partner that promoted the initiative at all of their offices. On this roadshow, they worked with people in the firm to solicit their pain points so they can figure out how best to create an initiative that is focused on addressing everyone’s concerns. In response to these concerns, the firm was able to create several tools that are designed to help placate client concerns. For example, their team developed a template for attorneys to summarize, for the client, how the firm has added value, in some ways that aren’t apparent to them. Attorney’s customize this to their clients so they get a clear picture of their relationship with the firm. They also spent a lot of time listening to what client’s wanted in a client dashboard, and used their input to create a “dashboard of the future”. Their dashboard includes realtime matter tracking, financials, as well as curated pieces that are specific to the client using the dashboard. These tools were designed specifically to provide efficient, transparent, and cost-effective legal services for their clients.

Following the TED talks, the audience broke-out into discussion tables where each table was tasked with coming up with five action items specific to a particular TED talk, and we all came together in the end to share the action items. Firms should rally their teams to create their own action items so that they are able to better address the myriad of client concerns. Considering these major areas of concern, adding value, credit, succession planning, billing and budgets, communication, managing expectations, and responsiveness, is crucial to creating a positive client experience.

Article By Nicole Cudiamat Minnis

The National Law Review / The National Law Forum LLC

Part 2: Influencing the Client Experience – Takeaways from LMA Capital's Half Day Program

Communication and Managing Expectations – Exceed Their Expectations Every Time: How to Communicate with Clients in Good Times and Bad

Affinity Group Initiatives – Developing Client Relationships Through Affinity Groups

Complacency and Responsiveness – Using Innovation to Motivate and Empower Attorneys and Connect with Clients

Article By Nicole Cudiamat Minnis

The National Law Review / The National Law Forum LLC

Influencing the Client Experience – Takeaways from LMA Capital’s Half Day Program Part 1

The LMA Capital group brought together a record number of legal marketers in the D.C. area on Wednesday, October 29th to discuss how best to positively influence the client experience and foster lasting relationships between their firms and clients. Tara Weintritt, partner at Wicker Park Group, kicked off the program by setting the scene for attendees. In the past, law firms focused on touting their experience and success in handling particular matters. However, Tara elaborated that smart, capable, intelligent lawyers are baseline characteristics. Clients want to know how you can help them and what it’s like to work with you. After speaking with over 1,500 in-house counsel, the folks at Wicker Park Group have been able to identify seven major areas of concern that are consistently at the forefront of these decision-makers’ minds: adding value, credit, succession planning, billing and budgets, communication, managing expectations, and responsiveness. Tara provided direct quotes from actual client interviews as an introduction to attendees, but six thought leaders in the legal marketing industry gave in-depth (but brief!) TED-style talks to really drill down to the heart of why these are concerns for clients, and what can be done to address these concerns.

Adding Value – Creating a Culture of Strategic Business Intelligence

Gina Lynch, of Paul, Weiss, Rifkind, Wharton & Garrison, kicked off the first TED talk. Clients want to know how you can add value to the relationship that does not show up on the billing report. This is where competitive intelligence teams are valuable in influencing the client experience. Firms must go above and beyond the requisite skills required for establishing the business relationship, which are thorough writing and analysis skills. The firm counterpart must demonstrate that he or she can understand the complex research. CI teams must fully understand the work the client does. Ms. Lynch elaborated, “they need to be able to talk like your client, act like your client”. It not enough to present a report to the client. They want to know how this is relevant to them, what their competitors are doing and what their long-term strategy might be. Ms. Lynch also advocates for the CI team to be outside of the marketing department so it can be involved in all aspects of the firm’s relationship with the client: intake/pitch, research, knowledge management and retention. This circles back to the notion that it’s critical to understand the work the client does. Finally, the relationship should be client-focused! This is a no-brainer as members of the team should be living in the client’s world so it can play offense when a problem comes up. If a CI team is strategically informed, it can spot opportunities for growth (or damage control) when a new situation arises.

Credit and Succession Planning – Creating Strong Client and Industry Teams for the Long Term

Ms. Weintritt, at the start, elaborated that a major concern clients have is not being involved in or more aware of transitions within the firm. Tara Derby, of Reed Smith LLP, in the next TED talk, discussed how to mitigate this concern, and ultimately develop a long-term, successful relationship with the client by creating strong client teams. A successful client team will be focused on leadership, collaboration, a proactive and intuitive approach, and strategic client engagement. There are two things that need to be accomplished in order to build a strong client team: 1) the right client relationship leader must be selected, and 2) he or she needs to work hand in hand with the key account manager, or client relationship driver. This leader needs to be organized, efficient, client-facing and engaging. It’s important that the correct leader and team be in place or else service provided to the client will be only mediocre. Teams are only effective when there is a high level of collaboration across the firm, but people that are part of the team need to make a positive impact on the client. Strong client teams are proactive, not reactive, and to do so requires the team to know the client’s needs, culture, and ultimately how they think. Clients will feel understood and listened too because the relationship is 100% centered around their needs.

Billing and Budgets – Doing Your Homework: Strengthening and Growing Client Relationships Through Better Scoping, Budgeting and Risk Assessment

Since the major shift if the legal industry a few years ago, clients have been more cost conscious. As Melissa Prince, of Ballard Spahr, elaborated in her TED talk, the quality of the work matters less than the value the work provides the client. In terms of cost-effectiveness, clients want transparency in the budgeting process and improved budget forecasting, more than the lowest cost. In terms of scoping, it’s important to develop the client relationship to understand the client’s goals and business objects. This means speaking to the client about their needs before the scoping process. The key thing is to put everything in writing: matter phases, tasks, expected deliverables, proposed timelines and deadlines, responsible time keepers, etc. It’s also key to identify assumptions, that is, to identify what is and what is not going to be included in the matter. In terms of budgeting, use historic financial data to identify ways to improve efficiency. The budget should also be documented in writing as specifically as possible. It should include metrics such as hours work, type of work, who will be completing the task, identifies different hourly rates, and outlines low and high estimates, as well as start and end dates. To preserve a positive client relationship, any overages that arise should be communicated as early as possible. Properly managing their expectations for the scope and budget of the representation will help improve the firm’s efficiency, but also deepen their relationship with the client.

Stay tuned for part 2 of LMA Capital’s Half Day Program.

Article By Nicole Cudiamat Minnis

The National Law Review / The National Law Forum LLC

The National Law Forum

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