The National Law Forum

Supreme Court Unanimously Rules That Police Officers Cannot Search the Contents of Cell Phones Incident to Arrest Without Obtaining a Search Warrant View Edit Track

In Riley v. California, the United States Supreme Court unanimously held that the Fourth Amendment prohibits police officers from searching through the data on an arrested suspect’s cell phone as an “incident to the arrest” and instead ruled that police officers must get a warrant first.

Riley involved the facts of two separate cases. In the first case, officers searched through the smartphone of a suspect arrested for expired registration and possession of illegal firearms and found photos and text messages showing that the arrestee was involved in a gang shooting a few weeks earlier. In the second case, officers arrested a suspect after observing him complete a drug deal, searched his traditional cell phone (not a smart phone) for the phone number associated with his home, traced the number to his house, and found a large amount of drugs and cash, along with a firearm and ammunition. In both cases, the evidence obtained through the warrantless cell phone searches was admitted at trial and both defendants were convicted.

The Court’s analysis focused on the reach of a warrantless search “incident to a lawful arrest.” Under this exception, police officers are permitted to search the person arrested and the area within their immediate control to remove any weapons that may be used to resist arrest or endanger the officers and to prevent the destruction of evidence. SeeChimel v. California, 395 U.S. 752 (1969). The Court took the time to appreciate the complexity of modern cellphones, describing them as “minicomputers that also happen to have the capacity to be used as a telephone” that are “a pervasive and insistent part of daily life.” The Court then analyzed the two justifications in Chimel for allowing a search incident to arrest: officer safety and destruction of evidence. With respect to officer safety, the Court concluded that data cannot harm officers and examples of cellphones indirectly contributing to unsafe arrest scenes were insufficient to dispose of the warrant requirement. With respect to the destruction of evidence, the Court found that examples of remote data-wiping of cellphones in police custody were rare and could be prevented by removing the battery or storing the phone in a bag designed to block wireless signals.

As further justification, the Court examined the privacy issues that arise from allowing warrantless searches of cellphones incident to arrest. Because modern cellphones carry the equivalent of “cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers” in a person’s pocket, the Court found that searches incident to arrest were not “limited by physical realities” of what a person can carry. Thus, allowing warrantless searches incident to arrest could reveal “far more than the most exhaustive search of a house.” The Court also noted that the scope of data that can be reached by cellphones, such as information uploaded to cloud servers, necessitated a warrant requirement and the proposed solutions to allow but limit warrantless searches were unworkable. Finding that cellphones store “the privacies of life,” the Court held that police must do one simple thing before searching a cell phone seized incident to an arrest: “get a warrant.”

For a full copy of the opinion, click here.

Article By:

Kevin Heaphy

Of:

Ryley Carlock & Applewhite, A Professional Corporation

U.S. Supreme Court Upholds D.C. Circuit Decision in Noel Canning

In a lengthy opinion authored by Justice Stephen Breyer, and drawing heavily on historical practice of Presidents and the Senate, the United States Supreme Court has upheld the decision of the U.S. Court of Appeals for the D.C. Circuit in Noel Canning v. NLRB, concluding that President Obama’s three recess appointments to the National Labor Relations Board in January 2012 (Sharon Block, Richard Griffin, and Terence Flynn) were invalid. The Court upheld the right of the President to make recess appointments both inter- and intra-session, but held that it is the Senate that decides when it is in session by retaining the power to conduct business pursuant to its own rules. The Court also found that a recess of less than ten days “is presumptively too short” to permit the President to make a recess appointment, except in “unusual circumstances”, such as a “national catastrophe”. (The recess here was three days.) The Court also decided that the recess appointment power applies to appointments that first come into existence during a recess and to those that initially occur before a recess but continue to exist during a recess.

As a result of the decision, over 1,000 Board decisions likely are now invalid. According to the National Right to Work Foundation, 999 unpublished decisions and 719 published decisions (totaling 1,718) could be affected. The Chamber of Commerce estimates 1,302 decisions from August 27, 2011 through July 17, 2013 to be suspect.

Article By:

Howard M. Bloom

Of:

Jackson Lewis P.C

New York Nonprofit Revitalization Act Rollout Challenges

As the July 1, 2014 compliance date of the New York Nonprofit Revitalization Act of 2013 (the “Revitalization Act”) quickly approaches, many charities operating in New York are confronting some difficult rollout challenges. While parts of the Revitalization Act are clear and welcomed (such as new rules that broaden the use of electronic communications and eliminate the need for supermajority board approvals of routine property transactions), other new requirements are puzzling to many of these charities’ officers and directors. Indeed, as we counsel our clients, we are finding that certain new Revitalization Act rules that concern board operations are causing some charities, in particular family foundations and corporate foundations, to wonder whether operating through corporations formed in New York is desirable.

The charities that seem to be facing the hardest issues are foundations with small boards, and with directors that either directly and appropriately exert substantial influence over foundation operations (such as in a family foundation), or are employed by the businesses that have founded and fund these charities to do their good works.

We are finding that many, but not all, of the requirements causing concern are tied to vague drafting in the Revitalization Act. The good news is that we have also identified what we believe are reasonable interpretations of the law that align with workable solutions for many clients.

This client alert notes just a few of the more pressing Revitalization Act issues, as well as relevant potential solutions, as they appear to us today. We will be highlighting other aspects of the Revitalization Act rollout over the coming year. We stress that the New York State Attorney General’s Charities Bureau may issue clarifying Revitalization Act guidance, and it is also possible that follow-up legislation may address some of these issues. Importantly, it is possible that this guidance or future legislation will not support our interpretations, although we hope that it does. Stay tuned.

Three Independent Directors

The Revitalization Act will require many charities to identify at least three individuals that satisfy detailed requirements of “independence” to serve as directors and oversee specified audit and financial reporting activities. (Three are needed because that is the fewest number of directors required by New York law to perform delegated board-level functions.) For many family foundations, corporate foundations, and labor/management charities – with small boards that are typically composed of individuals tied in some way to the charity or related entities – this requirement has created concern. This concern may be heightened when membership on the board has been finely balanced to achieve acceptable approaches to shared governance.

Most important for these charities to keep in mind is that the requirement is limited to charities that raise or “solicit” funding from the general public. However, some of these charities, in their annual charities filing with the New York Attorney General, may have been filing as soliciting charities even though they do not actually solicit funding. We suggest that such charities consider amending their filing status and we urge that any change in filing status in response to the Revitalization Act be made in consultation with corporate and tax counsel, closely assessing individualized factors and risks. For example, part of the analysis may be to examine whether the charity has been filing its annual Form 990 with the Internal Revenue Service (“IRS”) as a “public charity” (based on “public support” concepts of the IRS that differ from the New York concepts of “solicitation”). While we do not believe that the New York charitable solicitation concepts match the IRS concepts, tailored assessments should be made with both New York charitable solicitation laws and U.S. federal tax laws in mind.

For those charities that do solicit within the meaning of New York law, and whose small boards are populated by individuals employed by related entities, it will be worthwhile to take a hard look, again guided by counsel, at the kind of control exerted by a charity’s affiliated corporate entities over the charity. Under the Revitalization Act, whether that employment disqualifies a director as “independent” will depend on whether the particular corporate or other entity that employs the director “controls” or is “under common control with” the charity. Notably, the Revitalization Act does not define “control.”

Conflicts Policy Quagmire

Although the Revitalization Act is clear that the requirement for independent-director oversight of auditing and financial matters is limited to “soliciting” charities, the law is less clear about whether independent director oversight also applies to the law’s requirements on conflicts policies.

Essentially, the Revitalization Act codifies the widespread practice already adopted by many charities – many motivated by the IRS Form 990 conflicts policy checkbox – to have a written conflicts policy. It also requires oversight of adoption, implementation, and compliance with the conflicts policy by the Board or the audit committee. Certain provisions of the Revitalization Act can be read as requiring these oversight functions to be handled by independent directors only. While our interpretation is not free from doubt, we believe that to the extent there is an obligation to have independent directors oversee conflicts policy administration, a close and reasonable reading of the Revitalization Act supports the interpretation that such requirement is also confined to soliciting charities. If not, many private foundations will be forced to make drastic board changes for conflicts policy oversight, while permitted to use directors that do not satisfy independence criteria for what is generally viewed as the critical audit oversight function – a seemingly absurd result.

Charities with conflicts policies based on the IRS form are probably already aware that they will need to amend those policies to satisfy Revitalization Act requirements, since the IRS form does not track all of the components of a conflicts policy required by the Revitalization Act. As these policies are drafted, special attention should be paid to the annual conflicts questionnaire required by the Revitalization Act. Many charities already distribute an IRS Form 990 annual questionnaire to directors, officers and key employees. Revitalization Act questionnaires will now be covering some, but not all, of the same territory. To avoid bombarding individuals with duplicative annual forms, consideration should be given as to whether to use a single questionnaire that reasonably covers both IRS and Revitalization Act requirements.

Approval of Director, Officer, and Key Employee Compensation

The Revitalization Act imposes significant new requirements concerning related-party transactions. Among other things, the Revitalization Act imposes a new requirement to “contemporaneously document in writing the basis for the board or authorized committee’s approval” of a related party transaction, “including its consideration of any alternative transactions.” The Revitalization Act also provides the Attorney General with enhanced enforcement authority to void, rescind, seek restitution, and remove directors in connection with a transaction that is not properly approved or that was not reasonable or in the best interests of the corporation at the time the transaction was approved.

Because the Revitalization Act broadly defines a “related party transaction” as “any transaction, agreement, or any other arrangement in which a related party [including a director, officer or key employee] of the corporation has a financial interest and in which the corporation or any affiliate of the corporation is a participant,” there is some question as to whether compensation arrangements with directors, officers, and key employees are related party transactions. While the matter is not free from doubt, we believe that there is a reasonable basis for considering these compensation arrangements to be regulated in a manner distinct from related party transactions under the Revitalization Act. Clarification on this issue, however, would be helpful.

In addition, the Revitalization Act appears to define all directors as “related parties,” and prohibit all related parties from participating in deliberations and voting pertaining to related party transactions, without specifically distinguishing between directors who have an interest in the particular transaction and those who do not. Guidance clarifying that the Revitalization Act will not be construed or enforced in such an impracticable manner would be helpful.

Also, certain ambiguous language in the Revitalization Act can be read as expressly prohibiting any director from being present at or participating in any board deliberations or vote concerning director compensation, while apparently requiring director approval of the compensation. While we believe that such a reading of the Revitalization Act would be unreasonable and contrary to principles of statutory construction, clarifying guidance would help avoid uncertainty on an important governance issue. In the interim, boards may wish to approve director compensation arrangements prior to July 1.

Extraterritorial Application of Revitalization Act

Finally, some commentators have raised concerns that certain provisions of the Revitalization Act relating to board composition and operation may be applicable to charitable organizations formed outside of New York, such as Delaware non-stock corporations. We have not found this to be a reasonable interpretation of the Revitalization Act. Again, however, clarifying guidance would be welcome.

Article By:

Of:

Wyndham Data Breach Ruling Cleared for Potential Appeal to Third Circuit

U.S. District Court Judge Esther Salas ruled on Monday that the U.S. Court of Appeals for the Third Circuit can review her conclusion that Section 5 of the Federal Trade Commission Act provides the FTC with authority to bring actions arising from companies’ data security violations.

In April of this year, Judge Salas denied Wyndham Hotels and Resorts’ motion to dismiss a FTC lawsuit that alleges that Wyndham violated the FTC Act’s prohibition against “unfair practices” by failing to provide reasonable security for its customers’ personal information. Although her order is not a final ruling and is not binding on any other judge, it received considerable attention because it was the first time that a court has weighed in on the scope of the FTC’s authority over data security and privacy matters.

Denials of motions to dismiss ordinarily are not immediately appealable, absent permission from both the district court and the court of appeals. In her ruling on Monday, Judge Salas granted Wyndham’s motion to appeal her order to the Third Circuit. Judge Salas reasoned that there is substantial grounds for differences of opinion on two issues: (1) whether the FTC can bring a Section 5 unfairness claim involving data security; and (2) whether the FTC must formally promulgate regulations before bringing its unfairness claim.

If the Third Circuit grants Wyndham’s Petition to Appeal, the appellate court will review the legal conclusions in Judge Salas’s April order. If the Third Circuit denies the petition, the case will proceed in the district court. Even if the Third Circuit denies this petition for review, it ultimately may hear an appeal of the outcome of summary judgment proceedings or a trial in this case.

Article By:

Jeff Kosseff

Of:

Covington & Burling LLP

US Customs and Border Patrol (CBP) Announces Trusted Trader Program Test

U.S. Customs and Border Protection (“CBP”) announced today the commencement of its long-anticipated Trusted Trader Program test which will run for 18 months in collaboration with the U.S. Consumer Product Safety Commission (“CPSC”) and theU.S. Food and Drug Administration (“FDA”). In effect, the Trusted Trader Program will combine the current Customs-Trade Partnership Against Terrorism (“C-TPAT”) and Importer Self-Assessment (“ISA”) program with the objective of streamlining the process through which importers can establish that they strive to secure their supply chains and strengthen their internal controls for compliance with the laws and regulations administered or enforced by CBP, including those of other government agencies.

Currently, importing companies can participate in C-TPAT, which focuses on securing supply chains, and ISA, which focuses on strengthening internal controls to comply with Customs laws and regulations in exchange for special benefits. If a company wants to participate in ISA, that company must also be in C-TPAT. By combining the two programs, the Trusted Trader Program will move toward a whole-government approach to supply chain security and trade compliance thereby strengthening government collaboration among different government agencies – CBP, the FDA, and the CPSC. It will also align with the Authorized Economic Operator (“AEO”) programs around the world, which focus on a combined security and compliance model.

Benefits of Participation

To encourage participation in this dual model, CBP is offering the following additional benefits to those currently offered to C-TPAT and ISA members:

A reduced FDA targeting/examination risk score;
A penalty offset, upon request, as part of a CBP penalty mitigation decision;
For Reconciliation program participants, an ability to flag and unflag entries retroactively after the entry summary is filed up until 60 days prior to the date of liquidation;
A reduction in Foreign Trade Zone on-site inspections;
An exemption from on-site visits from Drawback Specialists, for drawback claimants;
A limit of one full desk review per year for drawback claimants;
An exemption from random Non-Intrusive Inspections (although the right is reserved to conduct the inspections as appropriate for operational reasons);
A quarterly submission of the CAS number, the use, and the description for the chemical compound in advance of the calendar year quarter;
A promise from CBP to process Post-Entry Amendments on unliquidated entries within a 90-day timeframe;
A choice of exam location when CBP selects an entry for examination;
When a single entry contains multiple containers, but only one container is selected for examination, the remaining articles will be released; and
Additional incentives for the companies that complete the Product Safety portion of the Trusted Trader application.

Application Process

Importing companies that are interested in participating in the Trusted Trader Program test and meet the eligibility criteria must submit an email; if they are provisionally selected they will be given the Trusted Trader application. CBP will begin accepting emails on Monday June 16, 2014, and plans to begin selecting the initial test participants no later than July 16, 2014. CBP plans to limit the Trusted Trader program test to fewer than 10 participants. Specifically, CBP is looking for test participants to include at least one importer currently participating in C-TPAT, one importer not currently participating in any CBP partnership programs, and one or two participants monitored by CPSC and FDA.

To be eligible to apply for the Trusted Trader Program test, a company must be an active U.S. or Non-Resident Canadian importer with an Importer of Record or CBP-assigned number and at least two years of importing history. The company must also have written policies and procedures pertaining to its import process, a business office staffed in the United States or Canada, and a valid continuous importation bond filed with CBP. A company must also conduct an assessment of its supply chain based on C-TPAT’s security criteria for importers, implement and maintain security measures and supply chain security practices meeting C-TPAT’s security criteria, have a designated company officer responsible for C-TPAT, and create and provide a C-TPAT security profile. Finally, it must maintain books and records to establish compliance with U.S. Customs laws and regulations.

Through the Trusted Trader Program, CBP will: achieve integrated U.S. government collaborations that will result in enhanced efficiencies leading to a reduction in government-wide resource expenditures; expand information sharing between government agencies; reduce administrative costs by streamlining the application and validation processes; and increase efficiencies in the existing trade programs. Just as CBP has done with C-TPAT, ISA, and the Centers of Excellence and Expertise, the Trusted Trader program should strengthen security, identify low-risk trade entities, and increase overall efficiency of trade by segmenting risk and processing by account.

Article By:

Kathleen M. Murphy

Beata K. Spuhler

Mollie D. Sitkowski

Of:

Drinker Biddle & Reath LLP

Halliburton II: Supreme Court Upholds Basic Presumption

On June 23, the U.S. Supreme Court issued its long-anticipated decision in Halliburton Co. v. Erica P. John Fund, Inc. (Halliburton II).^[1]Chief Justice Roberts delivered the opinion of the Court, in which Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined. Justice Ginsburg filed a concurring opinion, in which Justices Breyer and Sotomayor joined. Justice Thomas filed an opinion concurring in the judgment, in which Justices Scalia and Alito joined.

The Halliburton II case generated significant publicity because it presented the Supreme Court with the opportunity to reexamine the fraud-on-the-market presumption created in Basic v. Levinson.^[2] The Court in Basic held that, in a securities fraud class action, the plaintiff is entitled to a rebuttable presumption of reliance and, therefore, does not have to prove that each investor in the class relied on any alleged material misrepresentation. The foundation for the fraud-on-the market theory is the efficient-market theory, which presumes that, in an efficient market, all material, public information about a company is absorbed by the marketplace and reflected in the price of the security. The efficient-market theory has been under increasing attack in recent years, leading many to believe that the time may have come to overturn Basic.

In Halliburton II, the Supreme Court addressed whether to continue the fraud-on-the-market presumption unchanged, to cease the applicability of the fraud-on-the-market presumption altogether, or to alter the presumption. In the Court’s opinion, the majority declined to overrule or modify Basic’s presumption of classwide reliance, but it did hold that defendants may rebut the presumption at the class certification stage by introducing evidence that the alleged misrepresentation did not impact the market price. The majority determined that Halliburton had not demonstrated the “special justification” necessary to overturn “a long-settled precedent.”^[3] The majority also rejected Halliburton’s request that the plaintiffs be required to show a price impact to invoke the presumption because “this proposal would radically alter the required showing for the reliance element.”^[4] The majority did hold that defendants can rebut the presumption by showing lack of price impact at the class certification stage because “[t]his restriction makes no sense, and can readily lead to bizarre results.”^[5] The majority therefore vacated the U.S. Court of Appeals for the Fifth Circuit’s judgment and remanded for further proceedings.

In a concurring opinion, Justice Ginsburg, joined by Justices Breyer and Sotomayor, noted that, although the decision would “broaden the scope of discovery available at certification,” the increased burden would be on defendants to show the absence of price impact, not on plaintiffs whose burden to raise the presumption of reliance had not changed.^[6]

In a separate opinion concurring only in the judgment, Justice Thomas, joined by Justices Scalia and Alito, argued that Basic should be overturned for three reasons. First, the fraud-on-the–market theory has “lost its luster”^[7] in light of recent developments in economic theory.^[8]Second, the presumption permits plaintiffs to bypass the requirement—as set forth in some of the Court’s most recent decisions on class certification—that plaintiffs affirmatively demonstrate compliance with Rule 23. Third, the Basic presumption of reliance is “largely irrebuttable” because “[a]fter class certification, courts have refused to allow defendants to challenge any plaintiff’s reliance on the integrity of the market price prior to a determination on classwide liability,”^[9] therefore effectively eliminating the reliance requirement.

The Supreme Court’s decision has significant implications for securities fraud litigation, particularly at the class certification stage. Although plaintiffs need not prove direct price impact and may instead still raise the presumption of reliance by showing an efficient market and that the information was material and public, defendants may now rebut this presumption before class certification by showing a lack of price impact. We believe that defendants’ ability to rebut the presumption by showing no price impact effectively swallows the rule that plaintiffs need not prove a price impact. This will undoubtedly lead to a battle of the experts at the class certification stage. Although the Court’s decision does not explicitly affect other proceedings, such as a motion to dismiss, the scope of the decision will certainly be tested in the coming months and years.

Article By:

John M. Vassos

Karen Pieslak Pohlmann

Laura E. Hughes

Of:

Morgan, Lewis & Bockius LLP

^[1]. No. 13-317 (U.S. June 23, 2014), available here.

^[2]. 485 U.S. 224 (1988).

^[3]. Halliburton II, No. 13-317, slip op. at 4; see generally id. at 4–16.

^[4]. Id. at 17.

^[5]. Id. at 19.

^[6]. Id. at 1 (Ginsburg, J., concurring).

^[7]. Id. at 7 (Thomas, J., concurring).

^[8]. Id. at 8–9.

^[9]. Id. at 13.

The Supreme Court’s Greenhouse Gas Permitting Decision – What Does It Mean?

The U.S. Supreme Court today partly upheld and partly rejected the U.S. Environmental Protection Agency’s federal Clean Air Act permitting regulations governing greenhouse gas (GHG) emissions from stationary sources. The decision is mostly a victory for EPA, and its narrow scope means that it will almost certainly not disrupt, let alone invalidate, EPA’s ongoing Section 111(d) rulemaking to set GHG emission limits for existing power plants. At the same time, the decision does not necessarily mean that EPA’s 111(d) proposal is free from legal challenge. That is because the decision does not address 111(d).

Today’s decision concerns the Clean Air Act’s two stationary source permitting programs – the prevention of significant deterioration (PSD) program and the Title V program. In 2010, EPA announced that it was including GHG emissions within the scope of both programs. Various states and industry groups challenged that announcement, and today, the Supreme Court partly agreed and partly disagreed with the challengers.

First, five justices (Scalia, Roberts, Kennedy, Alito and Thomas) held that a source’s GHG emissions, standing alone, cannot trigger the obligation to undergo PSD and Title V permitting. That part of the decision is a loss for EPA. But the second part of the decision is a victory for the agency. Seven justices (Scalia, Roberts, Kennedy, Ginsburg, Beyer, Sotomayor and Kagan) held that EPA canrequire sources that are subject to PSD “anyway,” because they emit other types of pollutants in significantly large quantities, to control their GHG emissions. In sum, GHG emissions cannot trigger the obligation to undergo PSD permitting, but EPA can use the PSD permitting process to impose source-specific GHG emission limits on facilities that trigger the process for other reasons.

The decision does not address EPA’s authority to impose substantive limits on GHG emissions using other statutory provisions such as Clean Air Act Section 111(d).

Article By:

Jacob Hollinger

Of:

McDermott Will & Emery

The Power of Professional Presence

Transitioning from school – – college, law school, grad school, etc. can be a shocking and confusing time for a young professional.

Until now, you may have gotten up, thrown on a pair of jeans and a t-shirt and been good to go. Transitioning into the professional world and the manner in which you present yourself every day can either strengthen your reputation or detract from it. And, in some extreme cases, ruin it.

Understanding that it may seem frivolous to be so picky on how you dress and how you present yourself, let me assure you, it is not. It matters, every day. The manner in which you “show up” speaks volumes not only about how you feel about yourself, but the respect with which you regard those around you and your position.

If you have not heard this before, and I hope you have, below is a list of “best practices” to use as a reminder for those items to be attentive to any day you may interact in a professional setting:

For Women:

DO

Make up. Apply at least a little foundation as it provides a smooth finish on your skin. Just a smidge of blush, a whisper of lip gloss (not the super shiny kind that blinds us), a bit of mascara and brow pencil to frame your face, and you’re good. I understand some women have no interest, patience, or time for make-up but it matters in the overall professional presence. Not to go overboard on too much color in the office, but rather to enhance your natural beauty.

Be mindful of:

Skirt and dress length. To the knee is appropriate in a workplace so as not to create any awkward situations should you bend or stoop down.
Blouse and top necklines. Though you may be proud of your well-endowed chest, the office is not the place to show it off. Believe me, the fellas won’t mind but “the” fella who is in charge of your professional progression, will notice that you appear a little “loose”…not in a good way.
Shoes– yep, women love shoes, but the stilettos and ankle breakers are not for the office. Leave them for the Saturday night clubs. Invest in a couple of pair of boring pumps (black, navy and neutral) and you’ll be good.
Hair – it is not an accessory. Fix it and let it be. It is distracting to see women lawyers constantly with their hands in their hair, tossing it, curling it, flipping it around. If you are nervous, then doodle. Messing with your hair in the office around others does not speak well of you. Don’t do it.

Putting one’s best foot forward (literally and figuratively) will get you noticed and heard quicker and more positively than showing up on shaky group in connection with your professional image.

I’ve addressed some helpful hints for guys below to take note of for a stronger professional presence.

For Guys

Shave before coming to work. Maybe that rugged look is in for young guys, but the workplace is not Abercrombie & Fitch, and you need to be well shaven.
Be well groomed – no long fingernails, no super gel hair, etc. It matters and others in roles of authority are noticing how you present yourself in the office.
Tuck shirt neatly into pants. The “shirt-tail out” look may be appropriate for many occasions, but definitely not in a professional environment.

Be mindful of:

Socks. Match socks to your pants (not to your belt or tie) to provide a continuous monochromatic presentation from your pants to your shoes.
Shoes. Keep shoes in good shape. No mis-matched laces on the tie ups, or wearingany type of shoe which may resemble a sneaker, golf shoe, running shoe, etc. Invest in a sturdy pair of lace ups and a pair of “cordovan” (burgundy) loafers, and you’ll be well covered with most suits.
Suits. Be measured for your suits, even if you have only one. Wearing an ill-fitted suit negates the professional image you are trying to portray.
White Undershirts. There is a reason they are called “under” shirts mainly to keep guys warm in the winter months…with one exception. If you wear a white dress shirt, depending upon the fabric weight, it may be advisable to wear a white undershirt under the white dress shirt. Provides a more professional image than being able to see chest hair under the dress shirt or, worse, poking out of the shirt…eeew.

Along the professional journey, there will be plenty of times that “best practices” may elude you of feeling secure in your professional image. Easy to understand as there are rarely any “classes” in how to most effectively present your professional self. One way to allay some of the uncertainties is to look around and observe others more senior to you whom you respect and regard highly. How do they show up? Do they appear polished and refined?

Another option to “find” your professional style/image is by engaging the services of a professional stylist/consultant. Many of the higher end department stores (like Neiman Marcus and Lord & Taylor) offer these services. We also maintain a resources list of highly specialized experts who can also put you on the right path.

Regardless, remember, we have one shot at making the best first impression which may materially impact your professional success. Harness the power of professional image now to get and keep you on the right track.

Article By:

Kimberly Alford Rice

Of:

KLA Marketing Associates

The Importance of the First Impression For Attorneys

It is often said that a first impression can be a last impression. For attorneys, especially Personal Injury Attorneys who have to fiercely fight for business in such a highly competitive market, making a great first impression is essential!

Studies have shown that it takes approximately 3 seconds for a person to evaluate you based on appearance, body language, demeanor and mannerisms. This first impression sets the tone for the relationship to follow. Just as you are judging whether they are a good fit for you as your client, they too are judging whether you are the type of attorney they see fit to represent them in their case.

Although many first impressions can be misconceptions, they are almost entirely irreversible. As you know, trying to grow your firm and acquire good clients with strong, lucrative cases, can be very difficult. Putting in the extra effort to make the best impression possible, can give you that edge many of your competitors don’t have!

As obvious as it seems, not only should you present yourself physically professional with appropriate clothing, grooming and hygiene, but you must also present yourself conversationally with excellent manners. As simple as this is, these small things are what “makes-it or breaks-it” when signing a new client. If you appear to be too casual, you may give the impression that you will approach their case with the same casual attitude and not with the urgency and concern they feel is needed.

We are all guilty at times for forgetting to put our best foot forward. Sometimes we are having a bad day or have other things on our minds and it can come across negative. In order to cultivate a good relationship and maintain a high standard of service, here are some tips we can all use for making a great first impression and leaving behind our other daily stresses:

Show interest in their case immediately
Be confident
Demonstrate knowledge and competence
Be positive
Have a smile on your face and in your voice
Be courteous and attentive to their needs
Be reliable

You are being judged from the moment a potential client reaches out to you. Bringing in new cases is what keeps your firm in business and you cannot bring in new cases without clients. Your first impression is the key to your success.

Article By:

Anush Alexander

Of:

RW Lynch Company, Inc.

Social Media Ethical Guidelines: What Lawyers Need to Know

Don’t let your online activities land you on the bar discipline docket.

The New York State Bar Association’s Commercial and Federal Litigation Section has published a set of Social Media Ethics Guidelines that provide useful guidance for all lawyers (not just New Yorkers) on the use of social media. While the Guidelines set forth a broad outline for dealing with social media, lawyers will still need to think hard about their particular situations. Below are some of the guidelines that lawyers and law firms should keep in mind.

On-Line Advice: What should you do if a Facebook friend posts a legal question? Answer it? Have you created an attorney-client relationship? Do you owe a duty to all of your friend’s Facebook friends who will see that advice and possibly rely on it? The New York Guidelines suggest that you should keep any reply broad and general. “A lawyer may provide general answers to legal questions asked on social media. A lawyer, however, cannot provide specific legal advice on a social media network because a lawyer’s responsive communications may be found to have created an attorney-client relationship and legal advice also may impermissibly disclose information protected by the attorney-client privilege.” (Guideline 2.A). Great social media advice, but the Guidelines do not say when a “general answer” becomes “specific advice.” A good rule of thumb would be – if the request is specific and includes specific information about your friend’s situation – do not answer the question on Facebook.

Advertising: The Guidelines also say that if you use your social media profile primarily for your law business – think LinkedIn – it is subject to the rules governing attorney advertising and solicitation. (Guideline 1.A). When using Twitter to market your practice, the Commentary to the Guidelines says that you may “utilize commonly recognized abbreviations for information that is required in attorney advertisements.” The Guidelines thus suggest that you will need to devote some of your 140 characters to complying with advertising rules, but they don’t say exactly what content would make for a compliant Tweet.

New York’s Rule of Professional Conduct 7.1(f) requires all lawyer advertising to say “attorney advertising.” Presumably, then, attorneys can say “Att’y Ad” or something similar in their Tweets. The Massachusetts Rules of Professional Conduct do not require “Attorney advertising” but do require that any advertising “include the name of the lawyer, group of lawyers, or firm responsible for its content.” Mass. R. Prof. C. 7.2(d). Thus, Massachusetts lawyers may have a few extra characters in their advertising Tweets than New York lawyers, though they should Tweet under their own names – not a clever screen name.

That said, the Massachusetts rules could still raise compliance issues for lawyers who use social media – particularly concerning Rule 7.3 which governs solicitation of professional employment. For example, the Office of Bar Counsel has previously advised that “bulletin boards, which display information in cyberspace and allow people to post and respond to messages, … do not involve real-time, live interaction between lawyers and prospective clients” and are thus in-bounds for lawyers to advertise and solicit clients. On the other hand, “solicitation through … interactive computer-accessed chat rooms is prohibited as in-person solicitation” where the chat rooms “offer conversation that is live, interactive and conducted in real-time or near real-time.” On this rationale, a lawyer who finds herself in a “real-time” Twitter or Facebook conversation could unwittingly breach Rule 7.3(d) (prohibiting “in person” solicitation).

Among the other useful tips from the New York Guidelines:

If someone posts a statement to your social media profile that does not comply with advertising guidelines, you may have an obligation to remove the post. (Guideline 1.C);
“A lawyer may view the public portion of a person’s social media profile or public posts even if such person is represented by another lawyer,” including in situations where the person’s account tracks the identities of the viewers. (Guideline 3.A);
A lawyer may request permission to view the restricted portion of an unrepresented person’s social media website or profile. However, the lawyer must use her full name and an accurate profile, and she may not create a different or false profile in order to mask her identity.” (Guideline 3.B);
The situation is different if the person is represented. “A lawyer shall not contact a represented person to seek to review the restricted portion of the person’s social media profile unless an express authorization has been furnished by such person.” (Guideline 3.C);
You can advise a client to “take down” a post, although the client may have an obligation to preserve the information removed. (Guideline 4.A).

The Guidelines are not universal, however, and the drafters caution that there are numerous conflicting opinions and rules around the United States. For example, a recent New Hampshire ethics opinion has a different take on Guideline 3.B, finding that a lawyer must disclose her involvement in a matter when sending a “friend” request to an unrepresented witness to view restricted portions of the witness’ profile. “[S]ending a Facebook friend request in-name-only constitutes a misrepresentation by omission, given that the witness might not immediately associate the lawyer’s name with his or her purpose and that, were the witness to make that association, the witness would in all likelihood deny the request.” N.H. Bar Ass’n Ethics Advisory Comm., Op. 2012-13/05.

As you incorporate social media into your practice, you must research the law, understand the capabilities of the social media platforms you use, and carefully consider your online activities in connection with the Rules of Professional Conduct. In Massachusetts, if in doubt, you could contact the Office of Bar Counsel’s ethics hotline and ask. The hotline is available between 2 and 4 p.m. Monday, Wednesday and Fridays at (617) 728-8750. Ultimately, your best defense against stepping into a social media ethics landmine is to stop and think before you click.

Article By:

Thomas W. Kirchofer

Of:

Sherin and Lodgen LLP

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